1. This is an application by Thakur Jaisingh for the issue of a writ of prohibition, or any appropriate direction, order or writ of that nature under Article 226 of the Constitution, prohibiting the State of Rajasthan, opposite party, from recovering the alleged fine of Rs. 10,000/- from the applicant as arrears of land revenue.
2. The case of the applicant is that he is the jagirdar of Thikana Garh-Taknet and Kalyanpura, and that a fine of Rs. 10,000/- was imposed upon him by the Ruler of the former State of Jaipur on account of illegal distillation of liquor by the applicant. Out of this sum, Rs. 3,000/- were recovered from the applicant in January, 1950.
The applicant objected to the recovery of this amount or any further amount from him with respect to the alleged fine of Rs. 10,000/-, but the Government ordered the assumption of the management of the Thikana by the Court of Wards in order to realize the balance of Rs. 7,000/-. Thereupon, the applicant filed a writ petition in this Court against the order assuming superintendence of his Thikana. That petition was allowed and the Thikana was ordered to be released. The applicant had then withdrawn his prayer about the recovery of Rs. 10,000/- from him as he wanted to file a suit for refund of the amount against the Government.
After the release of the Thikana, the applicant wanted the Court of Wards to give him the ac-'count so that he might find out how much, out of the fine of Rs. 10,000/-, had been recovered by the Court of Wards, so that he might file a suit. Before however an account was supplied to him and before he could file a suit, he received a notice from the Tahsildar Neem-ka-Thana, who has also been made a party to this application, asking him to deposit Rs. 7,000/- towards the fine of Rs. 10,000/- and threatening to attach his Thikana in case that was not done.
Thereupon, the applicant filed the present application praying that the State be directed not to recover this amount from him. The applicant contended that the order of the Ruler of the former Jaipur State was without authority of law, and that the Ruler could not impose any such fine on him. As such, no money' could be recovered from him by the State of Rajasthan under the Rajasthan Public 'Demands Recovery Act.
It was also urged that no notice was served on the applicant under Section 6 of the Rajasthan Public Demands Recovery Act, 1952, and therefore no money could be recovered, in any case, under that Act.
3. The application has been opposed on behalf of the State. It is contended by the State that the applicant was distilling illicit liquor against the provision of the Excise Law of the former State of Jaipur. Therefore, His Highness the Maharaja of Jaipur passed an order dated 6-4-1949, imposing a fine of Rs. 10,000/- on the applicant, out of which Rs. 3,000/- were realized. The applicant moved a writ application in this Court in 1950. In that application the validity of the order was challenged, and it was prayed that the remaining sum of Rs. 7,000/- should be ordered mot to be realized. When that petition came up for hearing, the applicant withdrew his case as to the validity of the order and the realization of the remaining sum. Therefore, it was not open to him to file a second application on the same point.
4. As to the merits of the case, it was urged that the fine was imposed by His Highness the Maharaja of Jaipur on 6-4-1949, and that at that time His Highness was the sovereign authority in that State and his order had the force of law. As the provisions of the Constitution of India were not retrospective, and the right to realize the amount of fine imposed on the petitioner accrued before the Constitution of India came into force, the validity of the order could not be challenged now.
It was also urged that the fine could be realized as an arrear of land revenue.
Finally it was urged that he had another adequate and effective remedy, and could file a suit for declaration and injunction, and should not, therefore, be granted any relief under the extraordinary powers of this Court.
5. The first question, that arises for determination, is whether the applicant can maintain this second application with respect to the illegality of the fine and its recovery.
The judgment in the previous case contains the following observations:
'The learned counsel of the petitioner has however withdrawn his request as regards the recovery of the fine and he has expressed his desire that he would seek relief against the Government by way of a regular suit for refund of the amount already collected illegally by the Government. No order therefore need be made in so far as the recovery of the fine is concerned in these proceedings.'
6. The contention of the applicant is that the prayer as to prohibiting the recovery of the fine was withdrawn under a misapprehension of facts. The applicant thought that the remaining sum of Rs. 7,000/- must also have been realized during the time that the Thikana was under the Court of Wards. Therefore, as this Court could not grant a decree for refund in its extraordinary jurisdiction, the applicant's counsel stated that he withdrew that prayer as it was intended to file a regular suit for the refund of the amount.
In this connection, the applicant has filed an affidavit and has also submitted a copy of a letter which he received in June, 1951 about four months before the prayer for withdrawal was made. In the letter he was informed that something more than Rs. 48,000/- were lying to the credit of his Thikana in the bank. The applicant thought therefore that the remaining amount of Rs. 7,000/- must also have been realized by the State, and the balance in the bank must have been put in after realization of that sum. It is only in 1953 when the demand was made from him again to pay Rs. 7,000/- that he came to know that the amount had not been realized and was still outstanding.
7. It seems to us that the explanation given by the applicant for withdrawing that prayer is correct. He must have felt that when Rs. 48,000/-were lying to the credit of the Thikana, the State must have already realized the sum of Rs. 7,000/-which remained due. Under these circumstances, the prayer withdrawing the relief with respect to this amount was due to a mistake of fact. The question is whether a second application would lie where the prayer was withdrawn under a misapprehension of facts.
8. Generally speaking, a second application for a writ under Article 226 will not lie if one application for a similar relief has been dismissed. In this connection, reference may be made to -- 'The Queen v. Bodmin Corpn. (Mayor and Justices of Bodmin)', (1892) 2 QB 21 (A). Day J. observed as follows:
'As I read the authorities, it has always been held, whenever this objection has been taken and the attention of the Courts has been called to the point, that no second application for a prerogative writ will be granted when the first application has been discharged................They (persons seeking writ) must come prepared with full and sufficient materials to support their application, and if those materials are incomplete, I think it is quite right that they should not be allowed to come again.'
Charles J. agreed with Day J., but pointed put that where the first application had been withdrawn on the ground that the materials were in-sufficient, a second application may be made.
9. The present case, in our opinion, stands on a slightly better footing. The prayer in the first application was never refused. It was withdrawn under a mistake of fact. We do not see therefore why, when the mistake of fact was discovered, the applicant should not be permitted to renew his prayer. We are, therefore, of opinion that, in view of the mistake of fact committed in this case resulting in the withdrawal of the prayer la the previous case, we should allow the applicant to renew his prayer with respect to the illegality of the fine, and the invalidity of the manner of its recovery.
10. The next question is whether the fine having been imposed on 6-4-1949, before the Constitution of India was in force, it is possible for us to declare it illegal now.
It is urged that the provisions of the Constitution of India cannot be applied retrospectively, and therefore we should not now interfere. The answer to this is simple. If the order was valid when it was passed, it would certainly not be open to us to hold today that it is invalid by a retrospective application of the provisions of the Constitution. But if the order was invalid even when it was passed and is being enforced in part now, it is, in our opinion, open to us to hold it invalid on an application under Article 226.
We have therefore to address ourselves to the question whether the order when it was passed on the 6th of April, 1949, was valid or not.
11. The undoubted facts in this case are that the applicant was found carrying on illicit distillation. Thereupon, a report appears to have been made to His Highness the Maharaja of the former State of Jaipur for confiscation of a part of the jagir of the applicant yielding an annual income of Rs. 2,000/- as a penalty for illicit distilling. On this report, His Higness the Maharaja of Jaipur, passed the following order on the 6th of April, 1949:
'I do not consider the offence so serious as to warrant confiscation of jagir yielding an income of Rs. 2.000/- per annum out of the State grant to the Thikana. A fine of Rs. 10,000/- be imposed on Thakur Jey Singh of Thikana Gadh Taknet and he be warned for the future.'
12. The question, that falls for consideration, is whether His Highness the Maharaja of Jaipur could pass such an order imposing a fine on that date.
The contention of the applicant is that he could not under the law then in force, while it is contended on behalf of the State that he was the sovereign Ruler of the former State of Jaipur and as such he could pass the order, and it had the force of law.
13. When the order was passed, the Jaipur Excise Law of 1924 was in force. According to Section 21 of that law any person, who manufactured any excisable article in contravention of the law, was liable to imprisonment for two years, or line up to Rs. 2,000/- or both. It was, therefore, open to the State to prosecute the applicant under Section 21 of the Jaipur Excise Law in a competent court, and in that case the applicant would have been liable to punishment as provided by that section. It seems, however, that as the applicant was a jagirdar it was decided not to prosecute him under Section 21. Instead it was decided to recommend to the Maharaja of Jaipur that part of his jagir yielding Rs. 2,000/- per year should be confiscated. This recommendation could not be made under the Jaipur Excise Law, and has not been justified under that law. It is urged on be-half of the State that this recommendation was made to the sovereign of the former State of Jaipur, and the order that he passed on the 6th of April, 1949, had the force of law.
14. This raises the question whether every order passed by a sovereign Ruler has the force of law. It is obvious that a sovereign has executive, legislative and judicial powers. Therefore, every order that a sovereign may pass does not necessarily have the force of law. It may be only an executive order or a judicial order. In the present case, considering the nature of the order, it is obvious that it is an executive order, and cannot be called a law.
15. Besides even a sovereign when it has made certain law, which will govern its actions, must act according to that law. In the former Jaipur State, there was the Government of Jaipur Act which prescribed how the sovereign authority would be exercised.
So far as executive authority is concerned, the provisions are in Chapter II. Chapter III provided for the exercise of legislative powers, and Section 27 thereof excluded certain subjects from the purview of the legislature set up by the Act. One of the excluded subjects was the relation of the Sardars with His Highness, and their personal and hereditary privileges rights and status granted or recognized by His Highness the Maharaja. There was also provision that such other matters as may, from time to time, be specified by His Highness the Maharaja may be excluded from the purview of the legislature set up by the Act.
Section 28 provided how laws would be passed with respect to excluded matters, and it cannot be said that the order of 6th April, 1949, is a law within the meaning of Section 28 of the Act.
Then follow certain provisions relating to emergency legislation (section 29) and His Highness' power to legislate (Section 30). It is not the case of the State that the order of 6th April, 1949, was passed under these two sections.
18. Lastly, there is Section 42 which reads as follows:
'Nothing in this Act shall affect or be deemed to have affected the prerogative of His Highness the Maharaja to make and pass Acts, Proclamations and Orders in His Highness' discretion without reference to the Legislative Council, which right is hereby declared to be and to have always been possessed and retained by His Highness the Maharaja.'
It has faintly been urged that the order of the 6th of April, 1949, is under Section 42 of the Act as that section saved the prerogative of His Highness to make and pass Acts, Proclamations and orders in his discretion without reference to the Legislative Council.
This section certainly says that Acts, proclamations and orders could be passed by His Highness without reference to the Legislative Council. But the use of the words 'without reference to the Legislative Council' clearly indicates that the Acts, proclamations and orders passed under it must be of a nature which required reference to the Legislative Council. If the Acts, proclamations and orders passed under Section 42 were not of that nature, they could not be passed under that section. It cannot be seriously contended that this order of the 6th April, 1949, is of the nature which required reference to the Legislative Council.
The powers of the Legislative Council and the matters, which could be referred to the Legislative Council, are all to be found in Chapter III, and this order is not of the nature of orders which have to be referred to the Legislative Council under that Chapter, We are, therefore, of opinion that this order could not be passed by His Highness the Maharaja of Jaipur under Section 42 of the Jaipur Government Act.
17. Nor can it be said that this order was in the exercise of the judicial powers of the sovereign. We understand that there was a regular judicial system in the former State of Jaipur with the High Court at its head, and the Ruler did not reserve to himself any judicial powers, and the High Court was the highest judicial authority in the State.
In these circumstances, the order of' 6-4-1949, which can only be an executive order, cannot be defended on the ground that it was passed by the sovereign, and therefore had the force of law. So long as the Government of Jaipur Act remained in force, and it is not suggested that that Act was not in force in 1949, no lay could be passed even by the sovereign except in the manner provided by that Act.
Of course, it might have been open to the sovereign by an exercise of his sovereignty to scrap the Government of Jaipur Act. If that was done, the procedure provided by that Act for the making of laws would not have applied. But as that Act was in force on 6-4-1949, this order of 6-4-1949, cannot have the force of law simply because it was passed by the Ruler of Jaipur.
Further it cannot be an order under the judicial powers of the sovereign, for we have already pointed out that no such judicial powers were reserved by the sovereign for himself. It is thus merely an executive order, and its validity has to be justified as an executive order.
18. Now, if it was an executive order relating to a subject excluded under Section 27, Government of Jaipur Act, it might have been justified on the ground that it was the order of a sovereign in relation to an excluded subject, and had to be carried out. It seems to us that a recommendation was made to the sovereign for confiscation of part of the jagir because jagirs were an excluded subject under Section 27 (e). If His Highness the Maharaja had accepted that recommendation and confiscated a part of the jagir, it might have been possible to justify it as an executive order with reference to an excluded subject; but His Highness did not pass an order confiscating the jagir. What he did was to impose a fine of Rs. 10,000/- on the applicant. We can find no warrant for such an order being passed by His Highness the Maharaja of Jaipur in April 1949 when the Government of Jaipur Act, 1944, was in force. The power to impose a fine for illicit distillation is only conferred under Section 21 of the Jaipur Excise Law, and such a fine can only be imposed by a court of law and not by His Highness the Maharaja of Jaipur, even though he was the sovereign ruler of Jaipur on that date.
19. In this view of the matter, we are of opinion that the order of 6-4-1949, imposing a fine of Rs. 10,000/- on the applicant by the Ruler of the former State of Jaipur was not within his competence in view of the Government of Jaipur Act, 1944, and the Excise Law in force in the former State of Jaipur. The State of Rajasthan, therefore, cannot realize any part of this fine as the order imposing the fine was illegal when it was passed.
20. The next question is as to the manner in which the recovery is being made. It is urged on behalf of the State that the fine is being realized as a public demand, and reliance is placed on Section 15, Jaipur Excise Law of 1924. We are of opinion that Section 15 has nothing to do with the recovery of this fine. That section merely permits recovery of any arrear of any duty or fee, or any penalty imposed under the Jaipur Excise Law, or any rule made thereunder, as an arrear of the land revenue. In the first place, that section has no force now, and in the second place this penalty was not imposed under any section of the Jaipur Excise Law or any rule made thereunder.
The further question whether this amount can be recovered under the Public Demands Recovery Act (No. V) of 1952 really does not arise after our decision that ,the order of the 6th. April, 1949, was illegal.
It is, therefore, not necessary to consider at this stage whether this sum would be a public demand within the meaning of the Schedule attached to the Act. All that is necessary to point out is that if the amount was desired to be recovered under the Public Demands Recovery Act, the procedure provided under that Act should have been followed. Under Section 6 of that Act, the first requisite is to serve a notice on the person who is to make the payment. The case of the applicant is that no notice was ever served on him under Section 6. On service of such notice, the person concerned gets the right under Section 8 to make a petition denying his liability, and under Section 9 the Collector determines the liability, and it is only thereafter that the amount is recovered.
The State in its reply does not say that notice was served on the applicant under Section 6 by the Collector. In paragraph 5 of the reply all that is said is that the Excise Department wrote to the Collector of Sikar to realize the amount, and in pursuance of this order the Tahsildar, Neem-ka-Thana, gave a notice to the applicant to pay up. This is not the procedure under the Public Demands Recovery Act, and on this ground also therefore the present proceedings for realization of the amount must be prohibited.
21. The last point that has been urged on behalf of the State is that the applicant has another remedy inasmuch as he could file a suit for a declaration and injunction. It seems' to us very doubtful if the applicant could do so. In any case, considering the peculiar nature of the facts in this case, that remedy would not be equally effective, beneficial and convenient. We are, therefore, not prepared to refuse the application on this ground.
22. We, therefore, allow the application and prohibit the state of Rajasthan and the Tahsildar of Neem-ka-Thana from realizing any further amount from the applicant as a fine in pursuance of the order of His Highness the Maharaja of the former State of Jaipur, dated 6-4-1949. The applicant will get his costs of this application from the State.