ELUMALAI PANCHAYAT BOARD Vs. GURUSWAMI NADAR

JUDGEMENT

(1.) IN this Letters Patent Appeal the question canvassed is whether the mahimai collections made by the Elumalai Panchayat in the district of Madurai would constitute "in come" within the meaning of Section 58 of the Madras Village panchayats Act, 1950. The plaintiffs who are residents and traders in the village of elumalai, filed a suit more or less in a representative capacity in O. S. No. 66 of 1960 on the file of the Court of the District Munsif. Tirumangalam, questioning the validity of the act of first defendant, the Panchayat Board, to levy and collect such moneys by way of mahimai, and that of the other defendants as the limbs of the Panchayat to implement its action by enforcing such collection. The 2nd defendant is the person to whom such collections have been formed out, the 3rd defendant is the President of the Board and the 4th defendant is the Manager of the Panchayat, the collections were opposed on the ground that Ex. B. 11, dated 16-12-1958, which is the resolution of the Panchayat Board to collect the same, is without authority. The defendants pleaded that such collections were made oh the strength of a custom prevailing in the village and such a customary right to collect is now vested in the Panchayat Board, and the resolution to implement the same is valid and enforceable. The trial Court and the appellate Court found that there was a custom in the village whereby the village, community made similar collections bearing similar incidence as is reflected in Ex. B. 11, and therefore, the panchayat Board had the requisite authority to impose and collect the Mahimai involuntarily as well, under Section 58 of the Madras Village Panchayats Act 1950. In the second appeal, filed by the plain tiffs against the said decisions, alagiriswami, J, held-

(2.) IT appears to us that the collections made by the appellants are not income within the meaning of Section 58 of the Act, and it is not necessary to address ourselves to the other larger question elaborately considered by Alagiriswami, J. , whether the collection is in reality a tax and as a tax whether the Panchayat had the authority to levy and collect the same. Suffice it however to say that on a fair reading of Section 58 of the Act and the prevalent practice in the village it was never contemplated or understood that what was being collected as mahimal was in the nature of tax as is understood in law and taxing statutes.

(3.) THE sheet-anchor of the argument of Mr. V. P. Raman is that the collections made by the Panchayat by virtue of the resolution Ex. B. 11 was and continues to be income of the Panchayat. There can be no doubt that if such moneys paid by the traders in the village are to be characterised as income of the Panchayat, then such income would vest in it. But mahimai or tharagu are periodical collections made by the Panchayat not on any incidence normally available to it, but on the accidental circumstances of a trader coming in or going out of the Panchayat with certain notified goods or things. It is undoubtedly a voluntary payment and presumably to respect the custom in the village to pay the same to the members of the community.