1. The question in this case is whether the suit property falls under Section 81, Clause 3 of the Madras District Municipalities Act (V of 1920). Section 81, Clause 1, says that if the council by a resolution determines that a property tax shall be levied, such tax shall be levied on all buildings and lands within municipal limits save those exempted by or under the Act or any other law. The tax may be for general purposes, for water and drainage, etc. Section 81, Clause 2 says that the tax shall be levied at such percentage of the annual value as may be fixed by the Municipal Council, subject to the provisions of Section 78. Then comes Clause 3, which runs as follows:
The Municipal Council may, in the case of lands which are not used exclusively for agricultural purposes and are not occupied by, or adjacent and appurtenant to, buildings, levy these taxes at such percentages of the capital value of such lands or at such rates with reference to the extent of such lands, as it may fix.
2. Clause 4 says that the municipal council may, in the case of lands used exclusively for agricultural purposes, levy the tax at such proportion as it may fix of the annual value of such lands as calculated in accordance with the provisions of Section 79 of the Madras Local Boards Act, 1920. The land in question is situated within the municipal limits of Vizagapatam and is owned by the respondent, Chandramani Pattamahadevi, the Zamindarini of Chemudu. It appears to have been in the possession of a tenant and a suit was filed by the Respondent in the year 1936 for recovery of possession. A decree was passed and in execution of that decree, the respondent obtained possession on nth September, 1939. There was a general, revision of the property tax in 1940 and the appellant sought to tax the suit land as one coming under Clause 3 of Section 81. The respondent resisted this action and sought to bring the land under Section 81, Clause 4 of the Act. The question is, does it come within the meaning of the expression " lands which are not used exclusively for agricultural purposes," in which case Clause 3 will apply, or, does it come under the category of cases of lands used exclusively for agricultural purposes when it will come under Clause 4. It is admitted that in February, 1940, as part of the general revision the land in question was assessed on the basis that it comes under Clause 3. By February, 1940, the land had not been cultivated after the respondent obtained possession in execution of the decree against her previous tenant. Notice for the first half year of 1940-41 was issued on 31st March, 1940 and for the second half-year the notice was issued on 27th November, 1940. Objections were filed by the respondent stating that the suit land did not come under the category of lands which are not used exclusively for agricultural purposes. The appellant overruled her contention and proceeded to levy the tax under Section 81, tClause 3. Hence this suit. The trial Court held in favour of the municipal Council and dismissed the suit which was one by the respondent for declaration that the basis of the assessment is erroneous and for recovery of the assessment which had been collected for the two half years. On appeal the Subordinate Judge held that though the land was not being actually cultivated at the time of the revision, still the respondent had not given up and abandoned all idea of cultivation and that therefore the land came under Section 81, Clause 4.
3. The expression used in Section 81, Clause 4, is not land which is capable of being used exclusively for agricultural purposes. But the language used is this " lands used exclusively for agricultural purposes." Taking Clause 4, the land must have been used exclusively for agricultural purposes and not merely that it must be capable of being used exclusively for agricultural purposes. It is not enough that the owner merely intends to use the land exclusively for agricultural purposes. The meaning will be made clear if we refer to Clause 3, where the expression is " lands which are not used exclusively for agricultural purposes." The expression " which are not used exclusively for agricultural purposes " refers obviously to the point of time when the revision is made. No doubt, if before the revision the land was actually used for agricultural purposes and the revision takes place before the next cultivation season commences, then it may be said that the land was still being used for agricultural purposes, notwithstanding the fact that there were no crops on the land or even though the land was not actually ploughed up. But in this case possession was taken by the respondent on nth September, 1939. The revision was in February 1940. It is clear that there was a cultivation season between September, 1939 and February, 1940. It is not said that this period is between the harvesting of one crop and the beginning of the next cultivation season. In fact, the evidence given by the respondent is to the effect that the land was not let and was not used for agricultural purposes, because the estate authorities were afraid of letting the land to any tenant as the tenants would claim occupancy rights. That is the reason given by the respondent for the land having been uncultivated at the time of the revision. From the evidence which was recorded in the year 1943, it appears to be clear that the land was not cultivated at any time between 1939 and 1943. The fear is still there and the land is being kept without being let out to tenants. Further, letting to the tenants is not the only mode of using it for agricultural pruposes. It may be by cultivation by hired labour or by farm servants. I am of opinion that in this case the lands were not being used for agricultural purposes in February 1940 when the assessment was made. The decree of the lower appellate Court is set aside and that of the District Munsiff is restored with costs throughout.