JUDGMENT :- The appellant has filed the second appeal against the judgment and decree of the District Judge in Civil Appeal No. 89 of 1958 by which he confirmed the judgment and decree o£ the Munsiff S. D. O. of Ukhrul in Civil Suit No. 119 of 1958-59. 2. This appeal raises a very important question of law. It is necessary to be clear on the facts before dealing with the legal point involved. The respondent is the Khullakpa of the Somdal non-christian village in the Ukbrul sub-division. The appellant is a villager of the said village. Both, of them belong to the Tangkhul tribe of Nagas. 3. The respondent filed the Civil Suit No. 119 of 1958-59 before the S. D. O., Ukhrul claiming a sum of Rs. 50/-from the appellant by way of fine and compensation for the latters failure to offer one days free labour or Khutlang to the respondent, Respondents case was as follows : It was a long standing custom of the village for each of the house-holders of the village to offer one days free labour to the Headman or Khullakpa of the village for his being Headman and for his first settlement in the village. Accordingly every house-holder was offering the labour without any trouble. The appellant refused to otter such free labour in 1939. Thereupon there was a case in the Court of the S. D. O. as Miscellaneous Case No. 83 of 1939-40 filed by the respondent against the appellant in which a decree was passed that the villagers were bound to give the usual labour to the respondent and that the respondent shall announce to the village the day on which he wished his harvest to be cut and if the appellant or other villagers still refused to offer their tree labour they will be fined Rs. 50/- which amount will be paid to the respondent as compensation. The said Older of the S. D. O. Mr. S.J. Dunean dated 14-11-39 was marked as Ext. 1 in the suit. 4. It would appear that after this order of Mr. Duncan, the Khollakpas of the Tangknul villages in the Ukhrul sub-division have been collecting from the villagers the said sum of Rs. 50/- per head in case they refused to offer their free labour. S.J. Dunean dated 14-11-39 was marked as Ext. 1 in the suit. 4. It would appear that after this order of Mr. Duncan, the Khollakpas of the Tangknul villages in the Ukhrul sub-division have been collecting from the villagers the said sum of Rs. 50/- per head in case they refused to offer their free labour. This practice appears to have continued even after Manipur ceased to be under the Maharajah and became part of Union Territory of India after the Indian Constitution came into force. Thus, the Khullakpas of the Tangkhul villages of Champhung, Ngaimu, Phadang, Somdal non-Christian (suit village) and Tailoi Non-christian obtained decrees in Civil Suits Nos. 108 of 1951-52, 139 of 1951-52, 680 of 1951-52, 105 of 1944-45, 41 of 1955-56 and 42 of 1955-56, in the Court of the S. D. O., Ukhrul against certain villagers by way of compensation in lieu of the free labour. Thereupon over 150 villagers of the above villages including the appellant Herein filed Writ Application No. 32 of 1955 before the then Judicial Commissioner - Mr. Brij Narain, against the Khullakpas of the villages praying that the orders fin those cases directing them to pay compensation in lieu of1 forced labour should be set aside as offending Art. 23(1) of the Constitution. In the said writ State of Manipur was also impleaded as a party. My learned predecessor dismissed the Writ Application holding that the petitioners in the said writ have no justification for refusing to render free service for one day in a year or to pay the compensation to the Khullakpa and that the custom cannot be deemed to amount to an imposition of forced labour and that the custom did not therefore contravene the provisions of Art. 23 of the Constitution. The said decision is reported in Miksha v. State of Manipur, (S) AIR 1956 Manipur 41 . I shall be dealing in more detail with the said decision later in this judgment. 5. Even after the decision the appellant does not appear to have given one days free labour or the compensation in lieu thereof to the respondent in the subsequent years and the respondent came forward with the present suit claiming compensation of Rs. 50/- for the appellants failure to offer the free labour in 1957. 5. Even after the decision the appellant does not appear to have given one days free labour or the compensation in lieu thereof to the respondent in the subsequent years and the respondent came forward with the present suit claiming compensation of Rs. 50/- for the appellants failure to offer the free labour in 1957. The plaint stated that the appellant totally ignored the custom and was creating chaos and that therefore an order for payment of a fine of Rs. 50/- as compensation for his failure to offer one days free labour must be passed. The appellant did not dispute the existence of a custom among the villagers to offer one days free labour to the Khullakpa. His contention was that such free labour was being forcibly imposed on the villagers by the Khullakpa during the days of the British regime and that alter the Indian Constitution came into force, no citizen or India can be compelled to such forced labour in the face of Art. 23 of the Constitution. 6. Before I proceed to deal with the case, one thing has to be made clear, as there appears to have been same contusion, in the minds of the S. D. O. and the District Judge. The custom pleaded by the respondent was one by which each house-holder of the village had to offer one days true labour in a year to the Khullakpa for his being Khullakpa and for having got settlement of the village. Both the lower Counts appeared to have treated as part of the custom that in case any house-holder failed to offer one days free labour he will have to pay a compensation of Rs. 50/- in lieu of such free labour. The plaint did not mention this latter portion relating to compensation as part of the long-standing custom. The subject of compensation came in for the first time in the order of Mr. S.J. Duncan, S. D. O. in Miscellaneous Case No. 83 of 1939-40 by which he ordered that in case any villager refused to give the free labour, he will be fined Rs. 50/- and the said fine will be paid over to the respondent as compensation. Thus prior to 1939-40 there was no question of any compensation. S.J. Duncan, S. D. O. in Miscellaneous Case No. 83 of 1939-40 by which he ordered that in case any villager refused to give the free labour, he will be fined Rs. 50/- and the said fine will be paid over to the respondent as compensation. Thus prior to 1939-40 there was no question of any compensation. As the appellant appears to have been the first man to refuse to offer the free labour and that too only in 1939, the idea of compensation cannot have entered into the picture earlier and it cannot have been part of the long-standing custom. The truth of the matter appears to be that in the old days when the Khullakpa or Headman of the village was supreme he could enforce such free labour and the villagers also tacitly accepted his right to such free labour, but when modem ideas of freedom gradually began to creep into these hill villages, villagers began to refuse such free labour by 1939-40. Hence the Governmental authority in the form of the S.D.O. had to go to the help of the Khullakpa to compel such free labour by imposing fines on such of the villagers who were not willing to give such labour. Imposition of fine is a punishment. We do not know under what authority or law then in existence, the S.D.O. - Mr. Duncan imposed the fine in lieu of the free labour. None of the laws or rules then in existence have been brought to my notice which would permit of such a fine being imposed. Perhaps, the S.D.O. in the Hill areas in those days was the law-giver and the law-maker and the villagers never questioned his authority. In any case, Ext./1 makes it clear that the S.D.O. did not impose the fine of Rs. 50/- on the basis of any such custom pleaded before him that the Khullakpa was entitled to compensation of Rs. 50/- on the refusal of any villagers to give the free labour. I wish also to make it clear that the compensation of Rs. 50/- was not claimed in the present suit by the respondent on the basis of any implied contract between the Khullakpa and the villagers. Thus the compensation which came in only in 1939-40 by virtue of the order - Ext./1 cannot be the basis of a custom. Nor can it create any implied contract. 50/- was not claimed in the present suit by the respondent on the basis of any implied contract between the Khullakpa and the villagers. Thus the compensation which came in only in 1939-40 by virtue of the order - Ext./1 cannot be the basis of a custom. Nor can it create any implied contract. It is in the light of this that we have to deal with the decisions of the S. D. O. and the District Judge. 7. When the matter was dealt with by the S. D. O. - Munsilf, he raised an issue "whether the claim for one days tree labour was such as to impose forced labour on the defendant". The respondent was examined in support of his case and the appellant in support of his plea. Even in his evidence, the respondent only stated that generally the villagers of his village gave their free labour, that there was a dispute during Mr. Duncans time, that Mr. Duncan then passed the order Ext./1 in Miscellaneous Case No. 83 of 1939-40, stating that it the villagers refused to give the usual labour they will be fined Rs. 50/-, that the defendant did not give him the customary free labour for 1957 and that it was in contravention of the decision in the Writ Appln. No. 32 of 1955 : ((S) AIR 1956 Manipur 41 .) by the Judicial Commissioner. Thus the respondent based his claim for compensation on Ext./1, and on the decision in the Writ Application and not on any custom. This evidence of the respondent was not properly understood by the S. D. O. The custom was only to give free labour, according to this evidence and the liability to pay compensation in lieu of the labour was not part of the custom pleaded by the respondent. I have already pointed out that this was quite clear even from Ext./1, which was marked in support of the respondents case. The learned S. D. O. without understanding this, aspect of the matter treated the custom to be to give free labour or to give compensation of Rs. 50/- on refusal to give free labour. When the matter came before the District Judge by way of appeal, he also committed the same mistake and stated that the custom was to give free labour or on refusal thereof to pay compensation of Rs. 50/-. 50/- on refusal to give free labour. When the matter came before the District Judge by way of appeal, he also committed the same mistake and stated that the custom was to give free labour or on refusal thereof to pay compensation of Rs. 50/-. Both the S. D. O. and the District Judge held that such a custom was not in violation of Article 23 of the Constitution which prohibited Begar or forced labour. 8. In coming to that decision both the lower Courts relied on the decision of my learned predecessor reported in Miksha v. The State of Manipur, (S) AIR 1956 Manipur 41 . In paragraph 7 of the said decision my learned predecessor has stated as follows : "The only question which is material for the decision of this case is whether the orders in question seek to impose forced labour on the petitioners. Respondents 2 to 6 are admittedly chiefs (Khullakpas) and in this capacity they have to discharge a number of onerous duties in order to secure the well being and peaceful living of the petitioners. They have to protect the people living in their villages and they give dispassionate consideration (bichar) to their cases with the result that in majority of cases the petitioners have not to take recourse to the law Court and in lieu of the services which are rendered by the Khullakpas from times immemorial to the general residents of the villages, each villager renders free service for only one day in a year to his chief and if he does not want to render actual Service, he is allowed! by the custom to pay money compensation. It will be seen from the decision quoted above that the custom dealt with in that case by my learned predecessor was that each villager was to render free-labour for one day in a year to his Chief and it he did not want to render actual service he was allowed by custom to pay money compensation. As I did not find any such custom for payment of alternative compensation set up in the present case by the respondent, I perused the records of the case in Writ Appln,. As I did not find any such custom for payment of alternative compensation set up in the present case by the respondent, I perused the records of the case in Writ Appln,. No. 32 of 1955 : ((S) AIR 1956 Manipur 41 ) and I find that though my learned predecessor has dealt with the custom as stated above, no such custom was, in fact, set up in the case. The petitioners in the said Writ Application, who were the villagers in the 5 villages mentioned earlier stated in the Writ Application that from time immemorial the Chiefs of the villages in the Hill area had been illegally exacting forced labour front the villagers in the respective villages and that the said Chiefs used to take hold by force of various, articles of essential commodities from the defaulting villagers and that there were some Suits and Appeals, and the State Courts also passed decrees by imposing compulsory forced labour in favour of the Chiefs. I find that in the counter statement of the Khullakpas also no such custom of alternative compensation as mentioned in the decision by my leaned predecessor was set up. The fact of the matter is that the fine of Rs. 50/- by way of compensation for refusal to give free labour for one day was imposed for the first time only by the order of Mr. S.J. Dunean in Miscellaneous Case No. 83 of 1939-40 and that the said fine or compensation was never part of the custom pleaded. The custom was only to give one days free labour to the Khullakpas in view of the services rendered by the said Khullakpa as Headman for the entire village. 9. The existence of the immemorial custom to give one days free labour to the Khullakpa by each house-hold was not, in fact, disputed. What was-pleaded was that such a custom even though it may have been valid and enforceable in the old days-on the basis of an implied contract came into conflict with Art. 23(1) of the Constitution which prohibited Begar and other forms of forced labour and hence the said custom became void under Art. 13 of the Constitution and it could no longer be enforced after 26-1-50. Secondly, it was pointed out that the said custom being void, no Court of law can take notice of such a custom and give a decree for money-compensation against a villager, who refused to accept such a custom and give the forced labour. Thus, the questions which arise for decision in this case are : (1) Whether the custom of one days free labour is opposed under Art. 23 and hence void under Art. 13 of the Constitution and (2) Whether a decree for compensation for refusal to give the free labour can be given by Court. 10. Before I proceed to deal with these two questions, I shall deal with the argument advanced for the respondent that the Writ Appln. No. 32 of 1955 : ((S) AIR 1956 Manipur 41 ) in which the-appellant and the respondent were parties and ins which this very question was raised having been dismissed, the appellant cannot take up the question again in this second appeal. I cannot accept that contention for more than one reason. The decision in a Writ application proceeds on certain admitted facts. The question in such an application is whether the High Court in the exercise of its extra-ordinary jurisdiction will issue a direction to a Subordinate authority. If the High Court refused to exercise its discretion to issue such a direction, the dismissal of the application will not amount to a decree in a suit within the meaning of S. 11 C.P.C. and such a decision cannot be said to have the effect of res judicata in a subsequent suit between the parties. Secondly, the question involved in this case relates to the compensation for the year, 1957, while in the Writ Application, the question related to certain earlier orders and decrees of Courts in respect of which no appeals were filed and which were sought to be quashed by the Writ. In the present case, the matter comes up by way of regular appeal on the facts and on the evidence adduced in the case and it cannot be said that this Court will be precluded from entertaining this important question of law. I cannot also lose sight of the fact that the decision of my learned predecessor was based on a custom which was, in fact, not pleaded before him. I cannot also lose sight of the fact that the decision of my learned predecessor was based on a custom which was, in fact, not pleaded before him. At best, the said decision can be treated not as an authority binding on this Court, but as one to be taken into consideration in deciding the question. 11. Now I shall proceed to deal with the questions. Though the respondent has called the custom as "free" labour, it cannot be denied that it is compulsory labour. It is called "free" in, the sense that the labour has to be given without payment of any wages and not in the sense that it was voluntary labour. What the respondent really wants is that every villager should be compelled to give one days labour to the Khullakpa without payment of any wages by reason of the fact that as Khullakpa or the Chief of the village the respondent renders certain services to the villagers. In my opinion, such demand for labour even if it is based on immemorial custom will certainly be hit by Art. 23(1). Article 23 is as follows : "23(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention or this provision shall be an offence punishable in accordance with law. (2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them". What is prohibited is begar and other similar forms of forced labour. The AIR Commentaries on the Constitution of India at page 635 defines begar as a system under which persons are pressed to carry burdens for individuals or public or to perform other forms of menial service under compulsion. Thus when a Khullakpa insists on the basis of a custom that every villager in the village should render one days labour to him in a year, it means that he is forcing or compelling the villagers to perform the labour. It is this very matter which is prohibited under Art. 23. Article 23 is based to some extent on Art. 19(1)(f) which gives the freedom to every citizen, of India to practise any profession, or to carry on any occupation, trade or business. It is this very matter which is prohibited under Art. 23. Article 23 is based to some extent on Art. 19(1)(f) which gives the freedom to every citizen, of India to practise any profession, or to carry on any occupation, trade or business. This freedom which is guaranteed under the Constitution means that no citizen of India shall be compelled to work for another against his will. Prior to the Constitution, such compulsion was not looked down upon and persons in some kind of authority over others used to exact such work. Thus, Zamindars and other land-holders compelled their tenants to render free service. Vide, Basus Commentary on the Constitution of India, 3rd Edition, Vol. 1 page 311. Even the Indian Penal Code in Sections 490 and 492 recognised such compulsory labour and provided for punishment for breaking the contract entered into for such labour. The said Sections were subsequently repealed in 1925 when, presumably forced labour began to be looked down upon. Now this right against exploitation has been recognised as a fundamental right of the citizen under Art. 23 of the Constitution. 12. It was contended before me that the Khullakpas performed valuable services for the village as Headmen and the position of such Khullakpas has been recognised under S. 6 of the Manipur State Hill Peoples Regulation, 1947 and even in S. 3 of the Manipur (Village Authorities in Hill Areas) Act, 1.956 and that it was in lieu of the services rendered by the Khullakpas that the "free" labour by each villager has been allowed by custom and that such free labour in return for services rendered will not come within the meaning of forced labour under Art. 23. My learned predecessor in his decision in the Writ Application has also referred to this aspect of the matter in paragraph 7 (of (S) AIR 1956 Manipur 41 ) which I have already quoted in the earlier portion of this judgment. But in doing so he has referred to the fact that under the custom if a villager did not want to render actual service he was allowed to pay money compensation. I have already pointed out that this part of the custom was not pleaded before my learned predecessor and that it has not also been pleaded in the case before me. I have already pointed out that this part of the custom was not pleaded before my learned predecessor and that it has not also been pleaded in the case before me. It is doubtful that my learned predecessor would have found the custom to be valid, if he was aware that there was no plea of the alternative civil liability. It was only by the decision of Mr. Duncan that the compensation by way of fine came into existence. 13. Even granting that the labour is performed for certain services rendered by the Khullakpa, the element of compulsion still exists and it is this element of compulsion that Art. 23 prohibits. Even if it was for services rendered by the Khullakpa, he cannot insist on the villager performing free labour for him. 14. In that connection I may refer to the position of a Khullakpa in the Tangkhul villages. T.C. Hodson in his book "The Naga tribes of Manipur" deals with the Tangkhul Nagas. At page 74 of his book, he states that the Khullakpa is a village Officer. At page 79, he says : "Each village possesses at least one Officer called Khullakpa. For convenience of administration, he is often regarded as exercising secular authority, but in reality in ordinary village affairs, he has just that amount of influence to which he is on personal grounds entitled". Here I may say that as seen from Ext. 1, the villagers started refusing the forced labour to the respondent in 1939 on the ground that the man was guilty of incest. He had thereby lost his influence. Again at page 80 of Hodsons book we find it stated that every village has three hereditary village Officers, Khullakpa, Luplakpa and Lambu and that if the Khullakpa be a man of wealth, he will be a man of influence, but usually this is not the case. Thus the Khullakpa is at test only a village Officer. If the Khullakpa renders public service to the village, as a village Officer he must be treated as a public servant and payment for public service should be made from public revenues. Exaction in the form of labour cannot be insisted upon by a public servant from any citizen. Thus the Khullakpa is at test only a village Officer. If the Khullakpa renders public service to the village, as a village Officer he must be treated as a public servant and payment for public service should be made from public revenues. Exaction in the form of labour cannot be insisted upon by a public servant from any citizen. The only authority who can compel a citizen to render service is the State as provided in Art. 23(2) and in doing so even the State cannot make any discrimination between man and man on the ground of religion, race, caste or class. It follows therefore that a Khullakpa cannot insist on the villagers of his village to render service to him. Even if it is based on immemorial custom, such custom violates Article 13(1) of the Constitution and has to be treated as void. 15. My learned predecessor has quoted from page 635 of the AIR Commentaries on the Constitution of India and stated that where a person entered into a contract to perform certain service, it will not amount to forcing him to perform any service if he is only held to his civil liability under the contract. There was no such contract in this case to hold the villager to his civil liability. The custom pleaded was to give free labour for one day and not to pay money compensation in lieu thereof as already pointed out. In fact, the question for decision in this case is whether the appellant is liable to pay such money compensation if ho refuses to give free labour. If the custom to perform free labour is void, then no Court of law can give a decree for money compensation if the custom is violated, as no villager is bound to obey a custom which is void. The decision of Mr. Duncan fining the villager by way of compensation has to be treated as a bad decision not based on any law or on any principle of natural justice. 16. We may look at the matter from another aspect. If a citizen is to be forced to pay money compensation in lieu of public services rendered by a Khullakpa, it will mean that a tax is being levied on him for the benefit conferred on him by such public service. 16. We may look at the matter from another aspect. If a citizen is to be forced to pay money compensation in lieu of public services rendered by a Khullakpa, it will mean that a tax is being levied on him for the benefit conferred on him by such public service. The only authority who can levy a tax on a citizen is the State under Art. 265 of the Constitution and even the State can levy the tax only by authority of law which will mean by an Act of the Legislature. No Court of law can impose such a tax on the citizen by way of a decree of Court. 17. It follows therefore that the decree passed against the appellant in the present case cannot be allowed to stand. The appeal is allowed and the suit filed by the respondent is dismissed. Respondent shall pay the costs of the appellant in all the Courts. Appeal allowed.