- (1.) THIS is a writ application by Rawat Jagan-nathsingh who has described himself as the rightful owner to the jagir held by his father Rawat Lalsingh, and arises in connection with the recovery from him of a due called "talwarbandi". The petitioner's prayer is that the respondent State be prohibited from realising the sum of Rs. 9901/- from him by way of Talwarbandi. He has also prayed for an. order that the State be directed to release his estate from the management of the court of wards.
(2.) THE material facts are these. It is common ground between the parties that Rawat Lal-singh was the jagirdar of thikana Parsoli, and that he died on the 16th December, 1949. It is also not in dispute that this jagir happened to be placed under the management of the Courts of Wards during the regime of the former State of Mewar in Rawat Lalsingh's life-time. THE Jagir has since continued to remain' under the management of the State for one reason or another, and then the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (No. VI of 1952) came into force, and there is no question of the petitioner's getting possession of the Jagir back, as all Jagirs of the class held by the petitioner's family have been resumed at this date. It appears that under a letter from the Revenue Secretary to the Additional Jagir Commissioner, Udaipur dated the 30th January 1953, it was stated that His Highness the Rajpramukh had anctioned the succession of the petitioner to the jagir of Parsoli which was held by his deceased father, on payment of a sum of Rs. 9900/-, inter alia, as "ked Nazarana". We are told that this Ked Nazarana is the same thing as the petitioner calls Talwarbandi. Consequently, the petitioner has been asked more than once to pay this amount or have it adiusted against the amount of compensation payable to him, but the petitioner has been resisting this payment so far, and he has eventually come forward with the present writ application. This is opposed by the State on the grounds that the Jagir of Parsoli had reverted to the State of Mewar on the death of the petitioner's father and that the petitioners could not succeed to it till his succession was recognized in accordance with law and custom governing jagirs in Mewar, and that Talwarbandi was a customary due which the petitioner is bound to pay in order to get his succession recognized in accordance with such law and custom. The main question for determination before us is whether the so-called Talwarbandi or Ked Nazarana is an exaction tax which has the authority of law behind it, or it is unlawful and unconstitutional, and, therefore, cannot be levied. We may point out that this much is clear that Talwarbandi is a sort of a due which is connected with the recognition of the succession of a Jagirdar to a jagir by the ruler in the former State of Mewar. Thus Col. Tod in his wellknown book Annals and Antiquities of Rajasthan says as follows: " Relief:- The first and most essential mark of a feudal relation exists in all its force and purity here: it is a perpetually recurring mark of the source of the grant, and the solemn renewal of the pledge which originally obtained it. In Mewar it is a virtual and bona fide surrender of the fief and renewal thereof. . . . . . . . . . . . . . . . . . On the demise of a chief, the prince immediately sends a party, termed the Zubti (sequestrator), consisting of a civil officer and a few soldiers, who take possession of the state in the prince's name. The heir sends his prayer to court to be installed in the property offering the proper relief. This paid, the chief is invited to repair to the presence, when he performs homage, & makes protestations of service and fealty; he receives a fresh grant, and the inauguration terminates by the prince girding him with a sword, in the old forms of chivalry. It is an imposing ceremony, performed in a full assembly of the court, and one of the few which has never been relinquished. The fine paid and the brand to his side, a steed, turban, plume and dress of honour given to the chief, the investiture is complete; the sequestrator returns to Court, and the chief to his estate, to receive the vows and congratulations of his vassals. In this we plainly perceive the original power (whether exercised or not) of resumption. " Reference may next be made to the Kaulnamah (No. VII of 1854) entered into between Maharana Bhimsingh of Mewar and the leading jagirdars (See Treaties, Engagements and Sanad by C. U. Aitchison, Vol. III, Fifth Edition at page 30 ). Article 2 of this Treaty runs as follows:- " Kaid or fees paid on Tulwar Bundun, i. e. , investiture of fief, to be 12 annas per Rupee on the actual produce of one year; this will exempt the payment of that year's ehuttoond. The Chiefs of Amait, Gogoonda, Kanore, and Banaira, and the Kishnawuts, are exempt from these fees, but in lieu of them they pay Nuzzarana, which in stead of being left to the will of the Rana, is now fixed at Rupees 8 per cent, on the actual pro duce. " There is no doubt, therefore, that Ked Nazrana or Talwarbandt has its source in history, though there is no statutory sanction as such for levying it. It also appears that this was required to be paid by a jagirdar to the ruler at the time of his succession to the jagir held by his ancestor. It is significant that the petitioner has said nothing about the existence of this custom or otherwise in his petition. His contention is that Talwarbandi is a tax and that it has no authority of law, and, therefore, cannot be levied after the Constitution of India came into force on the 26th January, 1950. It was also urged in this connection that the Rajasthan Administration Ordinance, 1949, (No. i of 1949) by its Section 3 kept alive all the laws in force in any covenanting State immediately before the commencement of the Ordinance, and defined "law" as meaning any Act, Ordinance, Regulation, Rule, Order or Bye-law which having been made by a competent Legislature or other competent authority in a covenanting State, has the force of law in that State. In other words, the contention was that when the present State of Rajasthan was formed, all that was kept alive was the body of laws as defined in Section 3 and this did not include custom. It Was consequently argued with force that as there is no statutory authority behind the levy of Talwarbandi, we must strike it down as opposed to the Constitution. On the other hand it is contended by the State that even though there is no statutory sanction as such for the levy of Talwarbandi, it is perfectly legal. Reference was made in this connection to Article 7 of the Covenant entered into by the various rulers to form the United State of Rajasthan. Clause (3) of this Article provided as follows: " Unless other provision is made by an Act of the Legislature of the United State, the right to resume Jagirs or to recognise succession, according to law and custom, to the rights and titles of the Jagirdars shall vest exclusively in the Rajpramukh. " The important words in the clause which require to be noticed are "to recognise succession according to law and custom". It clearly follows that so far as the succession of jagirdars to Jagirs was concerned the right to recognise it was vested exclusively in the Rajpramukh and this right was to be exercised according to law and custom. In other words, it seems to us that customary dues, if any, connected with the recognition of succession were clearly preserved. In the words of their Lordships of the Supreme Court in para (7) of Thakur Amar Singhji v State of Rajasthan, AIR 1955 SC 504 (A), this covenant was the constitution of the United State of Rajasthan. The question then is whether this position is affected in any way by the Constitution coming into force on the 26th January, 1950. Article 263 of the Constitution provides that no tax shall be levied or collected except by authority of law. We shall assume for the purposes of this Article that Talwarbandi is a tax or fee which must have behind it the authority of law in order to be leviable. The next important enactment which requires to be referred to in this connection is the Rajasthan Jagir Decisions and Proceedings (Validation) Act, 1955. (Act No. XVTII of 1955 ). This Act was passed to validate certain decisions given and proceeding taken in respect of matters relating to the resumption of jagirs in the Covenanting State of Rajasthan and the recognition of success on ot the rights and titles of jagirdars therein and to provide for the forum for the disposal of such cases and proceedings in future. The Act came into force in November, 1955, Section 3 of this Act reads as follows: " 3. Validation of certain decisions. Notwithstanding anything contained in the covenant or in any judgment, decree or order of any Court, all final decisions given by the various grades of Revenue Courts or Officers, or by the Rajpramukh, in cases or proceedings arising out of, or under, the laws of the covenanting States providing for the resumption of Jagirs in those States and the recognition of succession to the rights and titles of Jagirdars therein shall be valid and shall be deemed always to have besn valid and shall not be liable to be called in question in any civil Court. '' Consequently the decision of the Rajpramukh, which was communicated by the Revenue Secretary to the Additional Commissioner (Jagirs), Udaipur, by his letter dated the 30th January 1953, calling upon the petitioner to pay the Ked Nazrana as a precondition to his right to succeed was a decision concerning the recognition of succession of the petitioner to the Jagir of Parsoli, and clearly fell within the four corners of the above-mentioned section. It may also be pointed out in this connection that the word 'law' under Section 2 of the said Act was defined as meaning "an existing Jagir law as denned in Clause (d) of Section 2 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952, (Rajasthan Act VI of 1952) and shall include any, law relating to Jagirs or Jagirdars enacted after the commencement of that Act". Turning to the definition of 'law' then in the latter Act it runs as follows: " 'existing Jagir Law' means any Act, Ordinance, regulation, rule, order, resolution, notification or bye-law relating to Jagirs or jagirdars in force in the whole or any part of the State at the commencement of this Act and includes- (i) any custom or usage, relating to such jagirs or jagirdars prevailing at the commencement of this Act in the whole or any part of the State and having the force of law and (ii) the terms and conditions contained in any order or instrument granting, or recognising the grant of a jagir. " It clearly follows, therefore, from what has been stated above that the order of the Rajpramukh recognising the succession of the petitioner on payment of Talwarbandi or Ked Nazrana is an order which has the authority of law (which includes custom) behind it and cannot be characterized as lacking that essential foundation. The position, indeed appears to be that the custom of Talwarbandi in connection with the recognition of succession by the ruler (which authority was after the merger vested in the Rajpramukh) was and continued to remain in force right up to 1952 when the Jagir Resumption Act came into operation and has been throughout kept alive and in tact by virtue of Sections 2 and 3 of the Rajasthan Jagir Decisions and Proceedings (Validation) Act, 1955. In this view of the matter we have coma to the conclusion that the demand of the State. against, the present petitioner to pay Talwarbandi or Ked Nazrana has the support of law at its base and is clothed with legal authority by virtue of the Rajasthan Jagir Decisions and Proceedings (Validation) Act, and consequently this levy cannot be struck down under Article 265 of the Constitution. We may in this connection also invite attention to Sections 27, 107 and 111 of the Kanun Maal Mewar, 1947 (Act No. 5 of 1947 ). According to Section 27, the ruler was the owner of all the land in the State, and nobody could take possession of it without authority derived from him. Section 101 provides that on the death of a Thikanedar or a Jagirdar, the male descendant of the original grantee of the jagir shall receive the jagir with the permission of "shriji Hazur" Section 111 provides for mutations in the event of death, and enacts that on the death of a jagirdar the person who considers himself as the next heir shall present an information to the Mehkka Khas, and mutation shall be recorded with the sanction of Shriji Hazur. It clearly follows from these provisions that before a Jagirdar could succeed to the jagir of the last holder being his successor, the recognition of the former by the ruler for such succession was a condition precedent. It is true that this enactment makes no specific provision for the levy of Talwarbandi; but from a perusal of the Act, we find that it is not exhaustive and this Act does not contain any provision even for the charging of an annual tribute like chuttoond from the jagirdars as to which there is and can be no question that they were under a liability to pay it to the State. No argument on the basis of this Act can therefore be founded in favour of the petitioner that the levy of Talwarbandi had been dispensed with by the State after 1947. On the other hand, the contention of the State before Us has been that this levy has throughout been recovered from the jagirdars after 1947 also. If the contention of the petitioner be, although this has not been raised in so many words in his present application, that the charging of Talwarbandi or Ked Nazrana has not even the force of custom behind it all we need say is that this is a question of fact which can be decided only upon evidence to be produced on either side, and it is not in our province to go into such a question in the exercise of our extraordinary jurisdiction in the matter of writs. If this be the petitioner's real grievance, he must seek his proper remedy in the ordinary Courts of the land. For the reasons mentioned above, this application fails and is hereby dismissed with costs to the State. . ;