Elumalai Panchayat Board and Another vs Guruswami Nadar and Others

Ramaprasada Rao, J.—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, u/s 58 of the Madras Village Panchayats Act 1950. In the second appeal, filed by the plain

tiffs against the said decisions, Alagiriswami, J, held-

The levy of the kind in question can be contemplated only on the ground of its being related to the holding of some land or the holding of some

office or at least some convenience or facility provided by a landholder. A mere custom, unrelated to anything else by which the village community

makes collections in respect of goods brought for sale within its limits or goods taken out of its limits for sale outside cannot be said to be valid.

There is no constitutional or legal basis for such a levy. Such a levy would be valid only if it Is on incident of the possession of any property or

holding of any office ............ I should think that when Section 58 mentions ''income'' it can only refer to income from sources other than property

belonging to the ''Panchayat and particularly income from property which was not owned by the village community.

and reversed the judgment of the lower appellate Court. Elumalai Panchayat, aggrieved against the decision of Alagiriswami, J. has appealed.

Though several grounds were stated in the memorandum of grounds of appeal, the only question canvassed before us was that the levy was not in

the nature of a tax and even if it is, it is justified. Mr. V. P. Raman, learned counsel, for the appellant, would urge that the collections are in any

event income within the meaning of Section 58 of the Madras Village Panchayats Act, 1950, hereinafter referred to as the Act. He would also

contend that the custom to collect the amounts having been found by the Courts below in favour of the appellant, the Panchayat had the right to

pass the impugned resolution. He would also sustain the collections on the ground that it is tax or toll because the custom sanctioned such a levy

even before the advent of the Constitution of India.

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.

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.

Ex. B. 11 no doubt nominates the collections as toll which according to the Panchayat was derived by the custom prevalent In the village. Mere

nomenclature cannot make any difference. Unless the amounts sought to be recovered are income which by custom belongs to or has been

administered for the benefit of the villagers in common, then Section 58 would not be attracted and such moneys cannot vest in the Panchayat.

What is ''income''? Funk and Wag-nail in their new Standard Dictionary on the English Language explain the word ''income'' as:--

the amount of money coming to a person or corporation within a specified time or regularly whether as payment for services, interest, or profit

from investment.

The element of regularity and the presence of a source from which such income is derived appear to be essential before any money obtained by

a person or body can be described as ""income."" Oxford Dictionary would say: ""Income"" is:--

periodical receipts from one''s business lands, work, investment etc.

This definition has found judicial approval in two decided cases of our Court. The Secretary to the Board of Revenue Income Tax Vs. Al.Ar.Rm.

Arunachalam Chettiar and Brothers, and D.B. Vedavalli Ammal Vs. K.S. Ganpathy Iyer and Another, . The contention here is that custom

enabled the community to levy the toll and Ex. B. 11 authorised the Panchayat to collect it, and hence it is income. The argument overlooks the

basic requirements of the word ''income'' and the positive concepts imbedded therein. Here there is no source from which the collections are

received; nor can it be said that they are regular and periodical payments. It depends upon the contingency of a trader taking the goods from the

village and another bringing the forbideen things into the village. It is unusual to refer to an uncertain collection of the nature under consideration as

income"", as it is purely money which is expected to be paid or got. There is a halo of chance around this collection depending upon a variety of

circumstances. There may be no crop at all during one year and no trader may get into the village the forbidden goods. If, therefore, the ''income''

stands and remains as a bare'' expectancy and depends on chance, it is inconceivable that such collection, even though authorised by custom, is

''income'' as it popularly and legally understood. Reference was made to Thirunagar Panchayat Vs. Madurai Co-operative House Construction

Society, . But far from gaining any assistance from the above, it appears to us that the ratio therein is against the contention urged before us by Mr.

V. P. Raman. The Supreme Court observed-

In the enactment of this section the legislature did not contemplate that parks, play grounds, schools or temple or hospital dedicated to the public

should vest in the panchayat merely by the fact of such dedication. What is required by S. 58 for the purpose of vesting is the proof of custom by

which the villagers in common acquire title to any property or income. Vesting of rights takes place u/s 58 if there is proof of customary right of

administration of any property or income for the benefit of the villagers in common. Unless therefore there is proof of customary right, the

Panchayat cannot claim title to the property or income administered for the benefit of the villagers in common. For example, the society may have

established a library or a social club or a school for the benefit of its members. Again, a private individual may have created a trust for the provision

of amenities like parks, play grounds, and hospitals for the residents of the village. In a case of this description the legal ownership of the Society or

of the trustees will not vest in the Panchayat because of the provisions of Section 58 of the Act. It cannot be suppossed that such a startling and

unjust result was contemplated by the legislature in enacting Section 58. We are accordingly of the opinion that the scope of Section 58 of the Act

must be confined to communal property and income of the Panchayat which by custom belongs to the villagers in common or has been

administered for their benefit as a matter of custom, and the scope, of that section cannot be extended to include parks, play grbunds, hospitals,

libraries and schools provided by the Society for the benefit of the members of the Tirunagar colony.

It follows therefore that a social mandate by the villagers enabling a collection by way of a toll or otherwise from incoming and outgoing traders

cannot by itself be proof of income or of a customary right of administration of income for the benefit of the villagers in common. As already stated,

there may or may not be income. It is not periodical, but uncertain. For the only reason that the mandate has an impact over a section of the public

in the village, it cannot make such a right, if it is a right at all, to vest in the Panchayat. Something more concrete is necessary. The word ''income''

appears after the word ''property.'' This specific word ''property'' constitutes a class by itself. It is not exhaustive by its enumeration. The generic

word ''income'' which follows cannot be considered in the abstract and it cannot be deemed in the circumstances to refer to a genus which is of a

wider connotation. There is no clear and manifest intention to this effect in Section 58 of the Act. As pointed out by Earl of Halsbury in Ystrady

Fodwg and Pontypridd Main Sewerage Board v. Hensted, 1907 AC 264, -

.........a very familiar canon of construction that, where you have a word which may have a general meaning wider than that which was intended by

the legislature, when you find it associated with other words which shew the contrary within which it is to come. It is cut down and overridden --

according to the general proposition which is familiarly described as the ejusdem generis principle"".

Applying the rule of ejusdem generis the, word ""income"" should mean income from any property to which the Panchayat has acquired a right by

custom or otherwise. No custom is inhered in a toll voluntarily paid by the incoming and outgoing traders in a village, for, however long a period it

may be. It cannot be said that It is income which by sanction of custom has vested in the Panchayat by reason of Section 58 of the Act We also

feel that there is considerable weight in the observation of Alagiriswami J. when he says-

I should think that when Section 58 mentions ''income'' it can only refer to Income from sources other than property belonging to the Panchayat

and particularly income from property which was not owned by the village community"".

Viewing the subject from any perspective, we are unable to agree that the toll sought to be collected by the appellant under Ex. B-11 is income by

custom belongs to or has been administered for the benefit of the villagers in common.

We have already observed that It is not necessary in the instant case to consider whether mahimai collections are in reality a tax and whether the

legality of such a levy be upheld on the basis of a custom. We refrain from discussing this question as we have come to the same conclusion as

Alagiriswami J, though on different grounds. The Letters Patent Appeal is dismissed; but in the peculiar circumstances with no order as to costs.