Judgment:
ORDER
S. Ramalingam, J.
1. Petitioner is a hereditary trustee of certain temples and kattalais. The prayer in the writ petition is for the issue of a writ of mandamus directing the State of Tamil Nadu and the District Collector of Thanjavur to forbear from collecting 4/5th of the land revenue or kist due for faslis 1383 to 1387 in respect of lands belonging to the petitioner.
2. The petitioner contends that under Section 6 of the Public Trust Act, a religious trust is prohibited from having any land under pannai beyond the ceiling limit and therefore, the petitioner has to let out his lands to a large number of tenants. Though originally the tenants were inducted in possession of any agreed amount of rent/lease payable by them by reason of Tamil Nadu Acts designed to relieve cultivating tenants of their liability for payment of accumulated arrears of lease, the position emerged that if a tenant, who was in arrears during the faslis 1383 to 1387 pays the 1/5th of the arrears of the lease, then the entirely of the balance is wiped out. By reason of the said provisions, the petitioner had not been able to collect form several lessees, 4/5th of the lease amount. When, at the same time, the liability of the petitioner to pay the full land revenue or kist is insisted upon by the respondents and there is no corresponding abatement of land revenue/kist given to the petitioner. Alleging that the peti tioner had been put to enormous loss by reasons of payment of land revenue/kist without abatement, the present writ petition has been filed for Mandemus to forbear the respondents from collecting 4/5th of the land revenue for faslis 1383 to 1387.
3. Learned Counsel for the petitioner contends that under Article 265 of the Constitution of India, no tax can be levied without the authority of law. For levying land revenue, there is no law made by the State either after the advent of the Constitution of India or before. Therefore, levy and collection of land revenue is wholly without jurisdiction. He further contends that since there is no law au thorising the levy of land revenue, the provisions of Article 372 of the Constitution of India would not, be of any avail to the respondents because the said Article 372 saves only existing laws. The law as used in Article 372 of the Constitution only is the law enacted by the competent legislature or Parliament. Thirdly, it is contended that the Revenue Recovery Act is not a law levying or authorising the levy of land revenue. On the contrary, the said enactment merely provides for the manner of collection of land revenue which is due. Therefore, it is submitted that the levy of land revenue is not protected by the Revenue Recovery Act. Lastly, it is contended that according to the common law/customary law, the land revenue/kist is in the nature of a king's share for Rajabhagam. The king can have his share only out of the income realised by the ryotwari pattadar. If the pattadar is deprived of collecting the lease of rent from the tiller by reason of certain social ameliorative legislations, the share of the king (Rajabhogam) should also be proportionately reduced. Since the said benefit has not been conferred on the petitioner, but instead, full amount of land revenue is sought to be collected from the petitioner, the mandamus as prayed fro should be issued.
4. Learned Additional Government Pleader opposes the contentions of the petitioner and submits that the levy of land revenue is a well accepted prerogative of the Crown and has re ceived judicial recognition in several judgments and being part of common law/customary law of the land, is saved by Article 372 of the Constitution of India. He further submits that the petitioners contention that the land revenue is in the form of king's share (Rajabhogam) is not tenable under the constitutional set-up, where the powers of the State have to be traced within the ambit of the constitutional provisions and not on vague theory of king's share.
5. In Madathapu Ramayya v. Secretary of State of India Council I.L.R. 27 Mad.386 in dealing with the validity of the levy and collection of land revenue, it was held.
Such imposition in the due exercise of the prerogative possessed in this country by the Crown viz., that of exacting from a subject holding arable land the Crown's proper share of the produce there of or the equivalent of such produce, which is modern land revenue. The right of the Government to assess land to land revenue and to vary such assessment from time to time is not a right created or conferred by any statute but as stated in my judgment in Bell v. Municipal Commissioners for the City of Madras I.L.R. 25 Mad.457 it is prerogative of the Crown according to the ancient and Common Law of India. The pre rogative right consists in this, that the Crown can by an executive act determine and fix the Rajabhogam or the king's share in the pro duce of the land and vary such share from time to time.
The above judgment of this Court was delivered in the year 1903. At that time, the Revenue Recovery Act 2 of 1864 was in force. The learned Counsel for the petitioner, therefore, submits that in the case reported in Madathapu Ramiah v. Secretary of State for India Council I.L.R. 27 Mad.386 this Court had held that the levy of kist and collections of land revenue is not under right conferred by any statute. Proceeding on this basis, the petitioner contends that since there is no statutory provision enabling the State to recover land revenue/kist, levy of the same is without authority of law and consequently, is violative of Article 265 of the Constitution of India. The same contention was urged before this Court in the case in Gopalan v. State of Madras : AIR1958Mad539 . There, the Division Bench of this Court held that the levy of land revenue/kist is a prerogative the Crown according to the ancient and common law of India also known as customary law of India was concluded by the Divisional Bench as a law within the meaning of Article 372 of the Constitution of India. Therefore, it was held that the levy of land revenue was and is according to the existing common law of India, and is protected by Article 372 of the Constitution. In this view, it was held that there is no violation of Article 265 of the Constitution of India in the levy of collection of land revenue. The ratio of the said judgment directly applies to the first contention revenue is without the authority of law and violative of Arts 265 and 372 of the Constitution of India.
6. Learned Counsel for the petitioner incidentally referred to the decision of the Supreme court in K.Kunhikoman v. State of Kerala : AIR1962SC723 at 731 it was held.
We have already said that the Act of 1908 deals with landlord tenures consisted of ryotwari pattadars which were governed by the Board's Standing Orders, there being no Act of the leg islature with respect of them.
From the above passage, learned Counsel for the petitioner contends that in respect of land which are not governed by the Tamil Nadu Act I of 1908 the land tenures under ryotwari settlement are not governed by any statutory provisions. In re spect of land revenue payable by ryotwari pat tadars the imposition is not governed by any statutory enactment. Hence, he contends that the levy of land revenue is without the authority of law and violative of Article 265 of the Constitution of India. But, for the reasons already explained, namely, that customary/common law of India and is protected by the levy of land revenue/kist is governed by Article 372 of the Constitution of India this contention of the petitioner is not sustainable.
7. The next contention of the petitioner is that the judgment of the Division Bench of this Court reported in Gopalan's case : AIR1958Mad539 , cited supra, requires reconsideration because that judgment is proceeded on the presumption that the Revenue Recovery Act (Act II of 1864) was held to be the law (statutory law) for levy and collection of land revenue. At page 120 of the said decision, it was held as follows:
The Revenue Recovery Act II of 1864 which purported to consolidate the laws for the re covery of arrears of revenue in India put the collection of revenue on a statutory basis, under Section 1 of the Act the landholder is defined as including all holders of land under ryotwari settlement or in any way subject to the payment of revenue direct to State Government.
Then after referring to Section 3 of the Revenue Recovery Act, this Court held,
This provision is a charging section as it imposes a liability on the land holder to pay the assessment.
Then the learned Counsel for the petitioner con tends that the assumption of the Division Bench is proceeded that the Revenue Recovery Act, which is a statutory enactment provides for the liability to pay land revenue and Section 3 which is a charging section imposing such liability is contrary to the law declared by the Supreme Court as reported in Kunhimohan's case : AIR1962SC723 cited supra. It may be recalled that in that judgment, the Supreme Court after referring to the system of land tenures in Tamil Nadu has held that the ryotwari settlements are governed only by the provisions of the Board's Standing Orders and are not governed by any statutory enactment. Hence, the learned Counsel for the petitioner contends that the levy of land revenue is not under the provision of the Revenue Recovery Act and the decision of the Divisional Bench holding to the contrary is not in conformity with the law laid down by the Supreme Court in Kunhimohan's case : AIR1962SC723 cited supra.
8. A careful reading of the decision of the Divisional Bench in Gopalan's case : AIR1958Mad539 cited supra shows that the said decision has been rested on the ground that the levy of land revenue was justified by the common law prevalent in India prior to the advent of the Constitution of India and Article 265 of the Constitution would include not only the statutory law, but also common law. Hence, merely because the said judgment was also rested on the ground that the Revenue Recovery Act contains charging section imposing liability to pay land revenue, it cannot be held that the decision reported in the Gopalan's case, cited supra is no longer a law.
9. Last submission of the petitioner is that the collection of land revenue being in the nature of a King's share of the produce, when laws had been enacted by the state restricting the collection of lease/rent from the tillers by the ryotwari pattadar, the Crown should give an abatement to the collection of land revenue, cannot also be sustained for the reason that whatever may be the ancient origin of collection of land revenue the law has been settled that the said collection is a prerogative of the Crown. That law being so it cannot be contended that when there is a restriction placed on the landholder to collect the full lease/rent from the tenant, there should be a proportionate abatement of the kist. Hence, for the reasons stated above there are no merits in the writ petition and the same is dismissed. No costs.