1. This is an appeal from the Judgment of the Agency Subordinate Judge, Balliguda, decreeing the plaintiff's suit for realisation of 'Mamuls' from his Khond tenants for the year 1946-47.
2. The plaintiff is the Patro of Sarangado Muttah in Balliguda Taluk and the defendant are Khond tenants of village Koppaguda within the said Muttah. Defendant No. 1 is the Muttah Malik of the village and defendant No. 2 is the Paclhano of that village. These two defendants are aboriginal Khonds and according to the plaintiff it was their function to collect the Mamuls due to the plaintiff from the Khonds of the village and pay the same annually. The plaintiff's claim to the Mamul is based on long-standing custom which has been recognised in the well-known Taylor's Memoir at Appendix XIV-3.
Exhibit 1 is an extract from the said Memoir relating to Sarangado Muttah from which it appears that the Oriya Patro of the Muttah was receiving the following payments from the Khonds of his Muttan: Re. 1/- per village and a basket of rice, Madha and Budha of Rs. 5/-. Khond adulterer Rs. 3/-, Khond adulteress Rs. 2/-, of this Rs. 2/- goes to the Uriyas. If a Khond leaves no son Rs. 10/-, of which Rs. 3/- goes to the Uriyas, If not heirs all the property goes to the Patro,' Taylor's Memoir was printed in 1902 and some of the payments to the Patro as recognised in the said Memoir are now obsolete. The plaintiff stated that in recent times the Revenue Commissioner of Orissa had explained to the Khonds that they need pay to the Patro only cash of Re. 1/- and a basket of rice per village and no other Mamuls. The learned Agency Subordinate Judge decreed the plaintiff's suit holding that a basket of rice was worth Rs. 10/- in the year 1946-47.
3. In this appeal the sole question that was canvassed by Mr. Das on behalf of the appellant was the illegality of collection of Mamuls by the Patro from the Khonds of his Muttah Mr. Das urged that these Mamuls were in the nature of taxes and as admittedly they were not based on any law in force in the Ganjam Agency tracts they were hit by the provisions of Article 265 of the Constitution. He also relied on the fundamental rights under Articles 19 and 31(1) of the Constitution.
4. It is, therefore, necessary to examine the history of the Mamuls and their precise legal significance. Sarangado is one of the Muttahs in the Ganjam Agency tracts inhabited mainly by aboriginal Khonds. The Muttah-head who is usually known as the Patro is however an Oriya Chief. Formerly, these tracts formed part of Chinnaki-medi Maliahs which were under the control of the zamindar of Chinnakimedi to whom the Patros used to pay annual tributes or Nasur, In 1872, Government resumed the Maliahs from the zamin-dar of Chinnakimedi and the Patros then began paying Nuzur direct to the Government. As regards the origin of these Patros, Taylor in his Memoir in paragraph 6 at page 2 says as follows :
'The dominant race above ghats are the Uriyas, the descendants of immigrants of seven or eight generations back. These men came to the country either as followers of the chiefs, to whom the nominally ruling rajahs gave shares of the land as a reward for service, or to check the Khonds, or to get the chiefs, if troublesome characters, out of the way, or else they were invited by the Khonds to reside as Patros among them for the sake of helping them in their fights, or deciding their disputes.'
Taylor also refers to the Patro of Sarangado at page 15 of his Memoir and says that though Sarangado originally formed part of Kurtilli Muttah it become independent from that Muttah under one Pindike Patra. In the Ganjam District Manual of T.J. Maltby (edited by G.D. Leman in 1918) occurs the following passage at page 53 about these Patros of the Khonds :
'Each collection of muttahs has for its Chief a Patro, in every case an Uriya. This Patro the Khond people, unless he gives them offence, deem it their duty to, and do generally, submit to and obey. They are great sticklers for the right of descent in the case of their Patros, and are not easily satisfied if an heir is set aside without reason.'
5. It seems thus clear that the Uriya Patros in Chinnakimedi Maliahs were headmen of a group of villages known as Muttah who had settled there several generations ago and wielded considerable authority over the Khonds.
6. In the Ganjam agency tracts no land revenue or tax was levied from the aboriginals though they were in possession of rich agricultural lands. This was in pursuance of a well-settled policy of the Government to eradicate the evil of 'meriah' (human sacrifice) prevalent among the aboriginals. As early as 1845 a proclamation was issued by the Government of India to the effect that the Government did not intend to levy taxes from the hill races and that the hill chiefs by whatever name known, would maintain all their hereditary privileges inviolate (see para 19 at page 6 of Taylor's Memoir).
The hill chiefs paid only nominal tribute or 'nusur' to the Government and used to maintain themselves partly from the income from their own Jagir lands and also partly from customary payments made to them by the aboriginals within their Muttahs. A careful compilation of these payments was made by various revenue officials of Ganjam District and in Taylor's Memoir of 1902 these were incorporated. In the preface to the said Memoir, Taylor made it clear that his list of the Mamuls was based on a list prepared by another officer named A. Thompson. Taylor wag himself Agent to the Governor in respect of the Ganjam Agency tracts. In the very first page of his Memoir he noted as follows :
'the details of mamuls payable and other items are liable to alteration and adjustment from time to time at the discretion of the Government.'
In 1940 an examination of these Mamuls was made by the Partially excluded Areas Enquiry Committee whose observations are also very helpful in deciding this litigation. In para 235 of their Report the Committee observed that in tlaess Agency tracts ''Government is the landlord of theentire area and there are no estates in the sense which that ambiguous term usually bears'. In para 253 they observed;
'We have described how the Patros, Bissoyees and Muttahdars or hill chiefs realise mamuls and pay Nuzaur to the Government. These Mamuls stand in the position akin to that of rent, though they are not legally so.' Again in para 254 they said :
'The mamul system is inherently bad inasmuch as it is troublesome for realisation on the part of muttahdars and, further, muttahdars harass the hill people by exorbitant demands. The system had its necessity so long--as there was no development of communications and markets... .As the liability to make a payment has its origin in a longstanding custom it should have a legal sanction behind it. Further, as the people have been accustomed to make a payment, though in kind, they will not grumble to pay its equivalent in cash.' In para 257 they went on to say:
'The muttahdars report crimes and attend to several other Government works. The remuneration of muttahdars consists of some Jagir or in am ands and mamuts. As it has been already said, mamuls have not been fixed but recognised and all disputes regarding them are decided by the Agent.'
8. Prom the aforesaid extracts it seems clear that these Mamuls are in the nature of customary payments made by the Khonds to the Oriya headnen. These were coming on for a very long time, long before the Government resumed Chinnaki-medi Maliahs. After resumption also, payment continued and Taylor and his predecessors merely recognised an existing custom. Doubtless Taylor made it clear that though the Mamuls were recognised they were liable to variation at the discretion of the Government. It also appears that whenever there was a dispute between the Patros on the one hand and the aboriginal residents of their Muttahs on the other regarding payment of Mamuls the Agent to the Governor decided the same. These Mamuls are very similar to but not the same as rent as understood in Ganjam plains. The definition of the word 'Mamul' as given in Wilson's Glossary is as follows :
'Mamul : established, customary; usual'
9. I am, therefore, satisfied that the Mamuls are based on long established custom recognised by the successive revenue officials of the district; that whenever there was a dispute about payment of Mamuls the revenue officials used to decide the same and that they also had power to vary the Mamuls, if necessary. There was no law relating to landlords and tenants in the Ganjam Agency tracts and no land-revenue or rent was payable by the Muttah-heads or by the Khonds. The only payment which the Government received was the Nuzzur from the hill chiefs who in their turn collected these Mamuls from the aboriginal residents of their Muttahs and also maintained themselves from the income of their Jagir lands.
10. The next question is whether Mamul of the type mentioned above can be called a 'tax' so as to be hit by the provisions of Article 265 of the Constitution. In my opinion, it cannot be called a 'tax' or a 'levy' at all. When human sacrifices were suppressed in the Agency tracts it was made clear in the proclamation of the Government of India that no tax will be levied from the aboriginals. The only safeguard was the protection or hereditary privileges of the hill chiefs which were guaranteed. These Mamuls are in the nature of such privileges which had been guaranteed by the Government of India as early as 1845 and which were subsequently recorded accurately by Taylor and his predecessors in their Memoirs.
It should be further pointed out that when Taylor wrote his Memoir in 1902 the Ganjam Agency tracts were administered directly by the Governor through his Agent (who was also the Collector of Ganjam for the plains) under the provisions of the Scheduled Districts Act, 1874. All the administrative powers vested directly in the Governor to be exercised through his Agent. Hence, it must be taken as well-settled that the Mamuls which are based on long established custom had been recognised by the Government and payment had been enforced by the Agent Whenever there was a dispute.
11. Mr. Das reliance on the fundamental rights guaranteed under Articles 19 and 31 (p of the Constitution is entirely out of place. Here, there is no dispute between an individual on the one had and the State on the other. It is a dispute between two persons regarding their respective civil rights. Hence, there is no question of invasion of the fundamental rights. (See P.D. Sham-dasani v. Central Bank of India Ltd., AIR 1952 EC 59 (A), reiteratpd in Sm. Vidva Verma v. Shiv Narain, (S) AIR 1956 SC 108 (B).
12. The next question is how far these customary dues can be enforced by law Courts. Doubtless, some of these dues which are archaic may not be enforceable as unreasonable. Thus the payment by a Khond adulterer or a Khond adul-treps mentioned in Taylors' Memoir (see Ext. 1) may not be enforceable and the plaintiff frankly admitted that when the Revenue Commissioner went to their place he made it clear to the Khonds that all they need pay to the Fatros was Re. 1/-and a basket of rice per village. I find nothing unreasonable in the payment of these dues and as they are based on longstanding custom recognised by successive revenue officials of the district and in the past disputes about the same had been settled by the Agent to the Governor there is no valid reason as to why these payments should not be enforced by Civil Courts.
13. Mr. Das however relied on Barsati v. Chamru, 1LR 29 All 683 (C). and urged that these payments were in the natoire of voluntary payments and as such were not enforceable. In that case the Question was whether a person was entitled to receive payments as Chowdhuri of Bazars. The Allahabad High Court while rejecting the claim observed :
'The right claimed by the plaintiffs is a vague and indefinite right. They alleged in their plaint that they were appointed Chowdhuries with the consent of the Baqquals and others who sell grain, vegetables etc. in the above mentioned Ba-ears. They do not say who appointed them and the statement they make as to their duties is far from definite.'
The Mamuls are, however, clearly distinguishable from the dues of the Bazar Chowdhuries of that Allahabad case. There is nothing vague or indefinite about these Mamuls. Similarly, the appointment of the plaintiff as the Patro of the Muttah was made by the Government through their Agent It has been coming on as a hereditary right in the family. The Mamuls have also been recognised by the Government and have been accurately recorded in the Memoirs of the revenue Officers of the district. I think these distinguishing characteristics are alone sufficient to show that the Allahabad decision has no application to the present case.
13a. It is true that the Partially Excluded areas Enquiry Committee suggested a radical reform in the land revenue administration in the Ganjsm Agency tracts by the abolition of the Mamuls and suggested a thorough and detailed enquiry regarding the rights of the various Muttah heads and the commutation of the Mamuls to cash payment. But these observations do not in any way detract from their other observations to the effect that these Mamuls are based on longstanding custom; that they are akin to rent and that previous disputes about the same had been settled by the Agent to the Governor. These are sufficient to justify the decree passed In favour of the plaintiff by the lower Court.
14. I would, therefore, maintain the judgment and decree of the lower Court and dismiss the appeal with costs.
15. I agree.