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Rajasthan High Court
Wanchoo C.J. & Modi, J.
Rang Raj - Appellant
Versus
Gram Panchayat, Khinwel (See 1952 RLW 184 for previous decision in this case.) - Respondents
D.B. Civil Misc. Writ Case No. 11 of 1950
Decided On : April 23, 1954
The notification (order) No. 4634, dated 5th Feb., 1949, issued by the Government of the former State of Marwar, may be said to amount 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 a Panchayat was established it became entitled to levy the same sum Kharda, which was being levied by the jagirdar.
Where the Panchayat admitted that it did not know how much was realized as Kharda Lag by the jagirdar from the village, it was not open for it to fix any amount it liked on the basis of the notification of the 4th Feb., 1949. That notification only authorised it at the best to realize as much as the jagirdar was realizing. (Para 5)
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 the being such an alternative remedy.
Thus where the applicants challenged the very legality of a tax and not the legality of its imposition on them alone; the taxes were attempted being realised under the advantage of the language of the writ order previously issued by the High Court and the Government though made a party to the proceeding for a long time failed to correct the action being taken under a provision manifestly illegal, the High Court felt inclined to issue a writ though the law itself provided alternative remedy by way of revision. (Paras 18 & 19)
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.
3. 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.
4. We propose to deal with the applicants 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.
5. 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 amoun
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