MODI, J. - (1.) THIS is a civil regular first appeal by the defendant State against the judgment and decree of the District Judge, Jodhpur, dated the 5th July, 1958, decreeing the plaintiff's suit in part. The plaintiff has also filed a cross-objection against that part of the decree by which the remaining part of the suit has been dismissed. We propose to dispose of the appeal as well as the cross-objection by the present judgment.
(2.) THE material facts are those. THE plaintiff Maharaj Shri Hukam Singhji is the second son of late Highness Mharaawal Shri Jawahar Singhji of Jaisalmer. It is not disputed, as it was in the trial court, that the plaintiff was the second son of the aforesaid Ruler of Jaisalmer and that in accordance with the custom which was in vogue in the princely State of Jaisalmer. as it then was, as in other like States, he was granted a number of villages in jagir as per Schedule A annexed to the plaint under a written grant which has been styled as 'Maryada' dated the 1st December, 1928, made by the Ruler. By one of the terms of this grant with which we are concerned in the present case, the plaintiff was admittedly granted the right to collect customs duty on export and import of goods from and to the villages granted in jagir to the plaintiff. He continued to enjoy this right until on the merger of the State of Jaisalmer in the United State of Rajasthan in April, 1949, the Collector, Jaisalmer, it is alleged, by his letter No. 4856 dated the 8th November, 1949 (Ex. 2) restrained the plaintiff from collecting such duty from the 9th Nov., 1949, and such duty was thereafter directed to be collected by the machinery of the new State. According to the plaintiff, this led to exchange of certain correspondence between him and the Collector in the course of which he was personally assured that the collections, made by the Government would either be paid to him in due course or he will be otherwise compensated for the same. THE plaintiff's case further is that this position was confirmed by the Assistant Commissioner's letter No. 156 of 1950-51 dated the 1st November, 1950 Ex. 3 when he called upon the plaintiff to furnish a detailed report in writing as to how the jagirdars in the former State of Jaisalmer were realising customs duty, the expenditure they were incurring on such realisations and so on and so forth. We may state at once that from a perusal of this letter or any other material on this record we are unable to gather that the Assistant Commissioner or any other officer gave any assurance to the plaintiff such as he claims. THE plaintiff's case then is that the requisite information was supplied to the Assistant Commissioner including the statement of income from this source for the last three years and compensation was claimed from the State on the basis of these figures. THE plaintiff was informed that the matter had been referred to the higher authorities. As, however, he did not receive any final orders in the matter for quite a long time, he gave a notice under sec. 80 Civil Procedure Code to the State on the 16th October, 1952, and eventually instituted the present suit on the 8th January, 1953, out of which this appeal arises, in which he prayed that the defendant State do render an account to the plaintiff as regards all the customs collections made by it with respect to his jagir villages from the 9th November, 1949, onwards upto such date as these may be held to be payable and 9 for payment of the same to him, and, in the alternative, he claimed damages to the tune of Rs. 82,275/- for a period of three years on the footing that his annual income from these sources amounted to Rs. 27,425/- and for future damages on the same computation. The State resisted the suit on a number of grounds all of which need not be mentioned for the purposes of this appeal, though we cannot help pointing out in passing at this place that some of these pleas were frivolous and should not have been raised. The principal pleas raised by it and to which it is necessary to refer were that it was not bound by the grant made by the Ruler of Jaisalmer and that after the United State of Rajasthan was formed, it alone was entitled to levy and collect customs duty according to law and the plaintiff had no right whatever to do it. Alternatively the State also contended that the entire amount collected by the 9th November, 1949, upto the date of suit worked out to Rs. 11,192/13/- only out of which the collection charges amounted to Rs. 3764/8/6 and thus the net amount of Rs. 7428/4/6 only had been recovered by way of customs tax from the plaintiff's villages vide account submitted by the defendant in Schedule A annexed to the written statement. The trial court framed some ten issues on the pleadings arising between the parties and eventually decreed the plaintiff's suit in part, that is, for a sum of Rs. 7421/4/6 up to date of suit, placing its reliance on the account which the defendant had submitted before it, and it further called upon the defendant to render an account to the plaintiff in respect of the customs duties realised by it from the plaintiff's villages for the period extending from the 8th January, 1953, to the 1st April, 1955, and pay the entire collection so made to him minus the collection charges. The court obviously fixed the 1st April, 1955, as the last date upto which the plaintiff was entitled to recover customs charges as no customs duty fell to be changed by the State thereafter as a result of the agreement entered into between the Government of India and the State of Rajasthan under Art. 225 of the Constitution. Both parties have felt aggrieved by this decision with the result that the defendant State has filed an appeal in which it is prayed that the plaintiffs whole suit should have been and be dismissed as untenable in law while the plaintiff has filed a cross-objection in which he has prayed that his suit should have been decreed in toto. We shall take up the defendant's appeal first. Now before we deal with the contentions raised on behalf of the State, we would like to give a summary of the findings of the court below. It held that in accordance with the terms of the Sanad dated the 1st December, 1928, granted to the plaintiff by State of Jaisalmer, as it then was, the plaintiff had acquired the right to collect customs duty on the entry and exit of goods into and out of the jagir villages granted to him and there can be no quarrel with this finding so far as it goes. This order could not but have full force so long as the State of Jaisalmer continued as an independent sovereign unit and was not merged in the United State of Rajasthan. As for the position which developed later, that, is after the United State of Rajasthan had come into existence, the learned Judge was of the opinion that even if the defendant State did not recognise the plaintiff's right to collect customs duties within his jagir, it did not repudiate that right either in express or implied terms and that the correspondence which passed between the plaintiff and the Assistant Customs Commissioner, or, for that matter, the Collector, could not possibly achieve that purposes as it was not within the authority of these officers to modify the order of the Ruler of Jaisalmer who was the sovereign Ruler in his own State and whose orders would, if at all, be modified only by competent authorities in the successor State. The position, according to the learned Judge, therefore, was that the plaintiff's right to collect customs duty, such as it was, continued until the Constitution came into force on the 26th January, 1950, and in coming to this conclusion, the learned Judge seems to have relied on the Covenant of 1949 entered into between the various Rulers of the covenanting States constituting the United State of Rajasthan including the Ruler of Jaisalmer in which it was provided under Art. 6 that - "all the assets and liabilities of the Covenanting State shall be the assets and liabilities of the United State." Having come to this finding, the learned Judge further went on to hold that after the Constitution had come into force on the 26th January, 1950, the plaintiff could not be deprived of his right to levy customs duty within his Jagir, which according to him, was a property right, saved by authority of law and unless he was awarded compensation for the same by virtue of Art. 31 of the Constitution, and as no such law was passed by the Central Government, customs having become a Central subject in the Union List authorising the taking away of such rights, the plaintiff was entitled to receive the benefit of such income or compensation for it for invasion of his right to property. He also referred in this connection to the agreement entered into between the Government of India and the State of Rajasthan according to which the latter continued to levy and collect customs duty for a period of five years upto the 1st April, 1955, and in this view of the matter, the learned Judge came to the conclusion that the defendant State was liable for the plaintiff's claim in this behalf. He, however, found that the plaintiff's claim for recovery of the amount of Rs. 82,275/- in this connection was untenable and that all that he could rightly be held entitled to receive would be the entire amount of collections made by the State from this source of income less the administrative charges incurred by it for collecting the same, and the learned Judge accepted the accounting furnished by the State on this point and thus decreed the plaintiff's suit for a sum of Rs. 7248/4/6 only apart from the prayer for rendition of accounts from 8th January, 1953 upto the 1st April, 1956, to which we have already referred. This brings us to the contentions raised on behalf of the State before us. It is urged that the approach of the learned Judge below to the whole case was entirely fallacious and that whatever right the plaintiff might have acquired for the levying of customs duties on goods entering or going out of his thikana villages during the regime of the Jaisalmer State, that right was never recognised by the new State of Rajasthan wherein the covenanting State of Jaisalmer had lost its identity, and it is further contended that until the new State should have clearly and positively affirmed or ratified the previous arrangement, it would not be binding on it. Furthermore, it is submitted that although the learned Judge has made a reference to Ordinance No. 16 of 1949, namely the Rajasthan (Regulation of Customs Duties) Ordinance, 1949 (hereinafter referred to as the Ordinance) in the course of his judgment, he entirely failed to appreciate the effect thereof and if he had done so, he could not have but come to the conclusion that after that Ordinance was passed and a notification under sec. 3 thereof had been issued, internal customs duties stood completely abolished in the State of Rajasthan, and, therefore, the levy of such duty even by the State (same under a special notification under the proviso to this section) let alone by any other agency e.g., by the jagirdar would be entirely unauthorised and illegal. We shall read sec. 3 here - "No duty leviable on internal transport - With effect from such date as may be notified by the Government in the Rajasthan Gazette, no duties of Customs shall be levied and collected in respect of any goods transported within Rajasthan, notwithstanding anything to the contrary in any law, or rule, instrument, or usage having the force of law, in any part of Rajasthan; and any such law, rule, instrument or usage shall be deemed to be repelled to that extent: Provided that the Government may, by notification, in the Rajastan Gazette - (a) impose a duty of customs on the transport of goods from or to any part of Rajasthan to or from such other part thereof, at such rate or rates and with effect from such date as may be specified in the notification, or (b) direct that in respect of the transport of goods of such description and from or to such part of Rajasthan as may be specified in the notification, a sum of money equal to the amount of the duty leviable on the export of goods shall be deposited with the appropriate Customs Officer of the place from where the goods are intended to be transported." This Ordinance came into force on the 12th August, 1949, as soon as it was published in the Rajasthan Rajpatra of that date. In exercise of the powers conferred by Sec.3 of the Ordinance, a notification dated the 19th August, 1949, was issued in the Gazette dated the 15th August, 1949, by which it was laid down that the Government of the United State of Rajasthan was pleased to direct that with effect from the 15th day of August, 1949, no duties of Customs shall be levied and collected in respect of goods transported within the United State of Rajasthan. The language of this notification, which has the force of law, is plain, and it clearly issued a mandate that internal customs duties, that is, duties in respect of goods transported within the United State of Rajasthan must stand abolished once and for all from the 15th day of August, 1949. If this notification had not been there, then perhaps there would have been room for thinking that customs duty in respect of goods transported from one part of Rajasthan to, another could still be levied, even after the new State had come into existence. But such a position is altogether inconceivable after a notification like this came to be issued. We should further like to emphasize that Sec.3 is in terms an over-riding provision and it has to be given effect to as its language indicates in spite of anything to the contrary in any law or rule, instrument or usage having the force of law in any part of Rajasthan and that if such a contrary law or rule or instrument or usage existed, it must be deemed to be repealed to that extent. There is no question that the Legislature of the new State was perfectly competent to make a law like this as indeed it was necessary in the interest of its new administrative set up, and that being so, it sounds the death-knell of any rights to levy customs duty with respect to goods transported within the new State by any agency whatsoever. We find it impossible to hold that in this state of the law, the plaintiff can be allowed to urge that whatever right to collect customs duty within his jagir he had once acquired survive after the said Ordinance was passed and a notification thereunder was issued under its third section on the 15th August, 1949. In his suit the plaintiff claims his right to collect customs duty with effect from the 9th November, 1949, and such a claim relating, as it does, to a period posterior to the notification must inevitably fail. We may add that the legal position, which we have discussed above, is not affected in any manner by anything contained in the Government entered into between the Ruler of Jaisalmer and the other Rulers constituting the United State of Rajasthan. It is hardly necessary for us to add further that when the right in question collapses before the Constitution came into force, that is, on the 15th August, 1949, nothing contained in the Constitution could improve the position of the plaintiff because it is well settled that it cannot have a retrospective effect. For the reasons mentioned above, the plaintiff's suit must fail. The plaintiff's cross-objection must fail automatically. We, therefore, allow this appeal, set aside the judgment and decree of the trial court and dismiss the plaintiff's suit. The plaintiff's cross-objection is also dismissed. As for costs, we think that as some wholly untenable pleas were raised by the State, which have led to the unnecessary protraction of this litigation, it shall have 3/4ths of its costs in the trial court and of the appeal here save that it shall receive the full amount of the court-fee paid by it on appeal. So far as the cross-objection is concerned, we would leave its costs easy. We order accordingly. ;