WANCHOO, C. J. - (1.) THIS is an application by Rang Raj and seven others under Art. 226 of Constitution for a writ of mandamus and prohibition against the Gram Panchayat Khinwel, through its Sarpanch Chunnilal. The State of Rajasthan has also been made a party to this application.
(2.) THE application came up for hearing on the 7th of April, 1952 (See 1952 R. L. W. 184.), and was then allowed on the ground that the notification under sec. 4 of the Marwar Village Panchayats Act, 1935, (hereinafter called the Marwar Act) had not been issued constituting a Panchayat in this village. Later there was an application for review, which was allowed on the 10th of December, 1953. , as the notification under sec. 4 had been found out. THE application has therefore, now come up for hearing on the other points raised therein. THE case of the applicants is that the Gram Panchayat has imposed certain taxes, and that if has not the authority to do so, and therefore it should be forbidden from realizing those taxes. It is also urged that the Gram Panchayat has started taking coercive action against the applicants for realization of some of the taxes, and therefore the need for the present application. THE taxes, which are being assailed, are - (i) Kharda Lag (a kind of house tax); (ii) Nisar and Pasar tax (i. e. import and export tax) ; (iii) Tax on marriages; (iv) Tax on adoptions. The application has been opposed on behalf of the Gram Panchayat, and their contention is that the taxes have been validly imposed. No reply has been filed on behalf of the State, but we have heard learned Deputy Government Advocate as the validity of certain provisions of the Marwar Act has been questioned. We propose to deal with the applicant's case with respect to each tax separately. Kharda Lag is being demanded from the eight applicants, and they have been asked to pay a sum of Rs. 651 / -. This amount is due not from the applicants alone, but from the entire inhabitants of village Khinwel. It is being realized from the applicants alone on the ground that they are respectable men of the village. The applicants contend that sec. 56 (2) of the Marwar Act does not authorise the Panchayat to levy house tax except with the Government, and that no such sanction has been taken so far as this levy is concerned. It is also contended that, in any case, the applicants are only responsible to pay the amount due from them, and cannot be asked to pay the share of the tax falling on the other inhabitants of the village. Sec. 56 (2) of the Marwar Act reads as follows: - " (2) A Panchayat may impose within its area any of the following taxes, if it so desires: - (a) a tax on professions e. g. money lending; (b) a tax on sale of commodities; (c) Octroi; (d) a Vehicle tax; (e) an animal tax; (f) a tax on marriages, adoptions and feasts; (g) any other tax, with the previous sanction of Government. " A bare perusal of sec. 56 (2) shows that Karda Lag can only come under clause (g), i. e. any other tax, and can, therefore, be levied only with the previous sanction of the Government. No such sanction was obtained from the Government before the levy of this tax amounting to Rs. 651/- on the entire village. Reliance is placed, however, on Order No. 4634, dated the 4th February, 1949, issued by the Government of the former State of Marwar, which is in these terms : - "his Highness the Maharaja Sahib Bahadur, has vide Council Resolution No. 7 dated December, 31, 1948, been pleased to order that in villages where Panchayats and Municipalities exist or in future are established cesses like Malta, Kharda and Mapa shall be recovered and appropriated by the Local Bodies. In all other Jagir villages, the Jagirdars will continue to recover these cases except Malba till a Panchayat or Municipality is established. " We must say that the language of this notification is far from clear. We are, however, told that the intention of the notification was that where Kharda Lag was being levied, the Panchayats were to realize the amount instead of the jagirdars. The words of the notification do not clearly lead to this conclusion, but we may take it from the last sentence of the notification that the meaning was that the jagirdars would continue to recover Kharda Lag etc. till a Panchayat or Municipality was established, and when the Panchayat or Municipality was established, the realization of the amount, which the jagirdar was levying, would be taken over by the Panchayat or the Municipality. This notification, therefore, may be said to amount to a general authorisation to all Panchayats existing or to be established in future to levy Kharda Lag at the rate and to the extent to which the jagirdars were levying it and no more. Therefore, when the Panchayat was established at Khinwel, it became entitled to levy the same sum as Kharda, which was being levied by the jagirdar of Chanor. This Panchayat came into existence on the 26th of January, 1950, and it could levy only such amount as Kharda Lag as was being levied by the jagirdar just before that date. We find, however, from the reply of the Panchayat that they fixed a sum of Rs. 651/- as the amount to be realized on or about the 14th of May, 1950. The case of the applicants is that the amount realized by the jagirdar of Chanor was much less than this. The Panchayat admitted in its reply that it did not know how much was realized as Kharda Lag by the jagirdar from the village. On this admission of the Panchayat, it was not open for it to fix any amount it liked on the basis of the notification of the 4th of February, 1949. That notification only authorised it at the best to realize as much as the jagirdar was realizing. As it is not proved that Rs. 651/- was the amount realized by the jagirdar, it was not open to the Panchayat to fix this amount as Kharda Lag on or about the 14th of May, 1950, and to realize it. We may incidentally mention that the applicants rely on a so-called order of the jagirdar, dated 11th of July, 1949, by which he gave up the right to realize Kharda Lag, and urge, in view of that order that no Kharda Lag could be realized in this village. It is enough to say that the order of the jagirdar has no force after the order of the Government of the former State of Marwar, which was published on the 4th of February, 1949. The jagirdar's order would have had value if he had remitted the tax before the order of the 4th February, 1949. Thereafter it was not for him to remit the tax. Secondly, it appears that the entire amount due from the entire village is being recovered from these applicants. The justification that is pleaded for this is that the custom in the village was that certain respectable persons used to pay the amount, and it was left to them to realize other people's share from them. Whatever may have been the custom prevailing in the time of the former State of Marwar, it is certainly not open to the Panchayat to collect from a person taxes which are not due from him, but from some others, unless there is authority of law for this course. Such authority of law, for example, exists in the matter of collection of land revenue from Lambar-dars on behalf of all co-sharers in a particular Mahal; but no such authority of law for realization of Kharda Lag from certain persons, whom the Panchayat may choose to nominate, has been shown to us. Therefore the whole amount of Rs. 651 /- cannot be realized from the applicants, even if Kharda Lag to this extent could be realized by the Panchayat. We now come to the import and export tax. Again, a bare perusal of sec. 56 (2) will show that an export tax cannot be levied under that section, unless the previous sanction of Government is taken under cl. (g ). It is no one's case that such sanction was taken, and so far as the export tax is concerned, it is an illegal import and cannot be levied by the Panchayat. So far as the import tax is concerned, it is in our opinion, covered by cl. (c) which gives power to the Panchayat to impose octroi. An import tax levied by a Gram Panchayat could be nothing more or less than octroi. It is, however, urged that sec. 56 (2) is invalid, in as much as it does not fix the limits within which the Panchayat can fix the rate for realization of the taxes mentioned therein. We are of opinion that this cannot invalidate the law, though if the Panchayat fixes inordinate rates, it may be open to the Government to supersede it under other provision of the Act. Then it is urged that no notification was issued defining the limits of the Panchayat, and therefore it was not open to the Panchayat to levy octroi or import tax as that is levied at the boundary of the Panchayat area. There is no force in this contention, for sec. 4 of the Marwar Act provides that the Minister-in-charge may, by notification, establish a Panchayat in any village or any ground of villages. In this case, the Panchayat has been established for village Khinwel. The boundaries of village Khinwel must be delimited in the records, and it is these boundaries which must be held to be the boundaries of the Panchayat area. This case is different from the case of municipality, for whenever a municipality is erected in any area its boundaries must be fixed. But in the case of a Panchayat established in villages, which have already fixed boundaries in the revenue records, these boundaries, in the absence of anything to the contrary, must be deemed to be the boundaries of the Panchayat area. So far, therefore, the import tax or octroi is concerned, the case of the applicants must fail. Then we come to the marriage tax. This tax is covered by cl. (f) of sec. 56 (2 ). Originally the Panchayat fixed Rs. 5/- as marriage tax for each marriage, on the 12th February, 1950. On the 22nd of February, 1950, they changed it and fixed the rate at Rs. 5/- in case of marriages among members of the Oswal community and Rs. 1/4/- in the case of marriages among others. Later perhaps it was realized that this would be hit by Art. 15 of the Constitution, and consequently on the 23rd of April, 1950, it was finally decided that when up to Rs. 500/- were spent on the marriage, the tax would be Rs. 1/4/-, and where more than Rs. 500/- were spent, the tax would be Rs. 5/ -. This is, in our opinion, a reasonable classification and cannot be assailed under Art. 14 of the Constitution. It is urged that no marriage tax could be levied under the law after the coming into force of the Constitution, and all that could be levied was a fee under item 47 read with item 5 of list III of the seventh schedule of the Constitution, and as this was a tax it was illegal. In the first place, it is enough to point out that these small amounts are in the nature of fees, for the Panchayat must be performing certain services for marriage parties within the limits of Khinwel. It is well-known that common lands of the village are used by marriage parties and the amount charged would partly go towards the use of the common land. Secondly, marriage parties give rise to matters of sanitation, and the Panchayat may well have to arrange for cleaning the place where marriage parties stay, and the amount charged will [partly be to defray these expenses. Taking these factors into account, the small sums charged as tax by the Panchayat may very well be taken as fees. Lastly, we come to adoption tax. This tax is also justified under cl. (f) of sec. 56 (2 ). The history of this tax is that, on the 12th February, 1950, the tax was fixed at Rs. 10/- per thousand of the property which the adopted person would get. It was then changed on the 22nd of February, 1950, and the tax was fixed at Rs. 20/- per adoption from Oswals, and Rs. 5/-per adoption from others. It was perhaps realized that this was against Art. 15 of the Constitution, and so, on the 23rd April, 1950, the tax was finally fixed at Rs. 5/- in the case of an adoption where the property of the adoptive father was worth upto Rs. 1000/-, and Rs. 20/- where the adoptive father was worth more than Rs. 1000/ -. It is contended that this tax is illegal firstly because this is a tax on the capital value of the assets of the individuals as defined in item 86, list I of the seventh schedule of the Constitution, and could only be levied by the Union Government. Secondly, it is urged that even if it is not a tax on capital value of the assets, it cannot be justified as a fee under item 47 of list III of the seventh schedule, and must, therefore, fail as it is a tax pure and simple. We see no reason to hold that this levy is a tax on capital value of the assets. It is true that the tax is charged at two rates, viz. , Rs. 5/- for those who have property worth upto Rs. 1000/-, and Rs. 20/- for those whose property is worth more than Rs. 1000/- ; but that is merely for purposes of classification, and the basis for classification is reasonable. The tax would be the same whether the property of the person adopting is worth Rs. 5/- or Rs. 1000/ -. Similarly, it will be the same where the property of the person adopting is worth Rs. 1100/- or say twenty lakhs. It is obvious from this that it is not a tax on the capital value of assets, and the amounts have only been mentioned in order to have a reasonable classification for two rates of taxes. The levy, therefore, cannot be invalid on the ground that it is covered by item 86 of list I of the seventh schedule. As to the contention that this is a tax pure and simple and cannot be justified as fee under item 47 of list III, it may be accepted that the Panchayat can hardly be conceived to render services which would justify collection of fees in respect of adoptions; but the contention on behalf of the opposite parties is that the tax is saved by Art. 372 (1) which reads as follows - "notwithstanding the repeal by this Constitution of the enactments referred to in Art. 395 but subject to the other provisions of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority. " This saves the Marwar Act, and the provisions contained therein, subject to the other provisions of the Constitution. No provision has been pointed out in the Constitution, which is, in any way, inconsistent with sec. 56 (2) (f) of the Marwar Act. It is true that after the coming into force of the Constitution, no law could be passed by the State Government imposing tax on adoptions, though a law imposing fees under item 47 of list III could be passed. But the law, which was in force on the date of Constitution came into force, and which permitted a tax adoptions, would, in our opinion, continue to be inforce, unless there is something in the body of the Constitution itself which makes its continuance impossible. Such continuance will not be impossible merely because of the presence or absence of certain items in the various lists of the seventh schedule of the Constitution. We may, for example, refer to the Rajasthan High Court Ordinance (No. XV) of 1949. That Ordinance remains in force even though now no law can be passed by the State Legislature with reference to High Courts. That part of the Ordinance, which is in any way inconsistent with the provisions of the Constitution, will fail, but not because the item relating to the High Courts is in list I of the Constitution. We are, therefore, of opinion that the adoption tax imposed by the Panchayat on the 23rd of April, 1950, is valid. We may point out, however, that such of these taxes imposed under the Marwar Act, which are no longer included in sec. 64 of the Rajasthan Panchayat Act (No. XXI) of 1953, can not be imposed after the first of January, 1954 from which date the Rajasthan Act came into force, and the Marwar Act stood repealed. It was urged on behalf of the State that these taxes are realized for the Panchayat by the Hakim under sec. 74 of the Marwar Act as arrears of land revenue, and as the Hakim (now the Sub-Divisional Magistrate) has not been made a party, it is not possible for us to issue any writ. We are of opinion that it was not necessary to make the Hakim a party to these proceedings. Under sec. 74, the Hakim is empowered to realize any sums due under the Act as if they were arrears of land revenue. He would, however, only do so when the Panchayat fails to realize the money itself and asks him to realize it on their behalf. If, therefore, the Panchayat is forbidden from realizing the amount, it cannot ask the Hakim under sec. 74 to realize it for Panchayat as arrears of land revenue. It was, therefore, not necessary to make the Hakim (now the Sub-Divisional Magistrate) a party to these proceedings.
(3.) LASTLY, it was urged that there was an alternative remedy open to the applicants, as they did not avail themselves of that remedy, this Court should not issue any writ in their favour. Reliance in this connection was placed on sec. 67 of the Marwar Act, which is as follows: - "the Minister-in-charge may call for and examine the record of proceedings of any Panchayat for the purpose of satisfying himself as to the legality or propriety of any executive order passed by it under cover of this Act and may revise or modify such order as he may deem fit. " It is urged that it was possible for the applicants to approach the Minister for the revision of the order, and as they did not do so, this Court should not grant them any relief. The reply of the applicants is that they are praying for an order in the nature of prohibition, and if this Court comes to the conclusion that a tax is unjustified, the relief asked by them should not be refused on the ground that there was an alternative remedy open. Reliance is placed on Somnathmal vs. The State of Rajasthan (1) (1954 RLW, 43.) and Madan Gopal Kabra vs. The Union of India (2) (1951 RLW, 56. ). It is well-settled that a writ of prohibition would not be refused merely on the ground that an alternative remedy exists. At the same time, where there is a clear provision of law in the nature of appeal or revision recourse to which can be had, and an equally convenient, beneficial effective remedy obtained, this Court would be generally not issue writ. For example, take a case where a Munsif holds that he has jurisdiction, while one party before him contended that he had not. If the party, whose contention has been turned down, were to come to this Court praying for a writ of prohibition, it is quite clear that this Court will not interfere in its extraordinary jurisdiction under Art. 226, and leave it the party concerned to take recourse to the remedies provided under the ordinary law, namely the Civil Procedure Code. The two cases of this Court relied on by the applicants can distinguished. In Madan Gopal Kabra's case (l), the applicant would have had to submit to the assessment of income-tax on him and would have had to pay it and then could appeal under the various provisions of the Income-tax Act, and finally come to this Court for relief. This was also the case where his contention was not merely that the tax should not be levied on him alone, but that the levy of the tax itself on anybody in Rajasthan was illegal. In those circumstances, it is obvious that the alternative remedy was not equally convenient, beneficial and efficacious. Similarly, in Somnathmal's case (1) (1951 RLW, 56.), the applicant would have had to file a suit, and there also his case was not that the levy on him alone was illegal, but that the levy itself was illegal. In those circumstances also the alternative remedy was not equally effective, beneficial and convenient. But where the law under which the tax is imposed by the panchayat, itself provides for correction of illegalities as in this case under sec. 67, this Court would not generally interfere under Art. 226, though it has the power to do so. In Barker vs. Palmer (2) (1881 VIII Queen's Bench Division, 9.), it was held that the defendant's proper remedy was to appeal from the judge's ruling, and not to apply for a prohibition against the issue of execution of the judgment, and a writ of prohibition was refused on the ground that there was an alternative remedy. In Turner vs. Kingsbury Collieries Limited (3) (1921 III, KBD, 169.), a writ of prohibition sought against the judgment of a country court judge under the Workmen's Compensation Act. It was held that the judge was sitting merely as an arbitrator. It was also held that the law provided one remedy and one remedy only, that is by way of appeal, and the writ of prohibition was refused. Mccardie J. , discussing the question of discretion of the High Court to refuse a writ of prohibition,, observed as follows at page 182 : - "i may add that if the matter be one of discretion for me, I feel it my duty to exercise that the direction by refusing a writ of prohibition in the present case. The question of discretion is one of much difficulty. In Shorts on Information, Mandamus and Prohibition (1887), P. 441 there is this passage: "it may be doubted whether any legal question has ever given rise to so grant a conflict of judicial opinion as the question whether the grant of prohibition is discretionary, or whether it is demand able of right. " In that treatise the decisions are collected and the curious variation of weighty authorities as strikingly shown. Later authorities are collected in Halsbury's Laws of England (1909), Vol. X, p. 144 and see also p. 141. Upon the whole I come to the conclusion, though not without doubt, that upon the circumstances of the present case the grant of a writ of prohibition would be discretionary. . . " The matter again came up for consideration in The King vs. North (5), and Lord Atkin at page 506 observed as follows after considering whether an alternative remedy of an appeal existed or not : - "but whether that is so or not I think it is quite plain that the fact of there being a remedy by way of appeal is no answer to a writ of prohibition where the want of jurisdiction complained of is based upon the breach of a fundament principle of justice "such as I conceive to have been the case here. There is plenty of authority for the proposition that in such cases prohibition will lie not withstanding that there is a right of appeal. " A consideration of these authorities makes it clear that it is open to this Court to refuse a writ of prohibition if there is an alternative remedy by way of appeal or revision and it is only when the want of jurisdiction complained of is based upon the breach of fundamental principles of justice that this Court will intervene in spite of their being such an alternative remedy. The next question is whether this Court should interfere in the present case even though there is a specific provision in sec. 67, which the applicants could have availed of. There are three circumstances which, in this case, incline us to issue a writ. In the first place, the applicants are raising the very legality of the taxes, and not the legality of this imposition on them alone. Secondly, it appears that there was an attempt by the Panchayat to realize these taxes, taking advantage of the language of the order of this Court prohibiting realization. There was an application for contempt of court in that connection, and the learned Judges observed, on the 27th of November, 1950, that though the action taken by the Sarpanch was improper it did not amount to a breach of the injunction. In the third place, this application has been pending for about four years and the stated has also been made a party. The illegality of the imposition of Kharda Lag and export tax is patent, and even so no action has apparently been taken by the State during all this time to correct the action of the Panchayat. The Government should have taken action itself under sec. 67 without being approached by the applicants, when the illegality came to its notice on its being made a party to this petition. In view of these peculiar circumstances, we are of opinion that a writ should issue to the Panchayat with respect to those taxes which we have held to be invalid. ;