Full Judgment Text
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PETITIONER:
H. H. SUDHUNDRA THIRTHA SWAMIAR.
Vs.
RESPONDENT:
COMMISSIONER FOR HINDU RELIGIOUS& CHARITABLE ENDOWMENTS,MYSO
DATE OF JUDGMENT:
20/11/1962
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
SINHA, BHUVNESHWAR P.(CJ)
GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
GUPTA, K.C. DAS
CITATION:
1963 AIR 966 1963 SCR Supl. (2) 302
CITATOR INFO :
R 1965 SC1107 (15,48)
RF 1966 SC 416 (19)
R 1970 SC 181 (5,6)
RF 1970 SC1114 (6)
RF 1971 SC 344 (5,6)
R 1971 SC1182 (8)
R 1975 SC 846 (14)
R 1976 SC1207 (165)
RF 1980 SC 1 (3,13)
E 1980 SC1008 (10)
R 1980 SC1124 (18)
R 1983 SC 617 (5)
F 1983 SC1246 (30)
RF 1985 SC 218 (9)
R 1989 SC 100 (26)
RF 1989 SC 317 (34)
RF 1992 SC1383 (14)
ACT:
Hindu Religious Endowments-Maths-Commissioner’s power to
bring a suit for removal of truatees-Whether infringes
fundamental right-Pathakanika given to the Mahant as head of
Muth given personally to the Math-Only the former need be
used for Math-Annual contribution-Levy of-Whether tax or
fee-Retrospective Legislation-Power of State Legislature-
Constitution of India, Art. 19(f)25, 26, 27-Seventh
Schedule, List II, Items 28, 47-Madras Religious Endowments
Act, 1951 (Madras XIX of 1951), as amended by Act XXVII of
1953, ss.52(1) (f ), 55, 76(1) and (2), 80, 81, 82.
HEADNOTE:
At Udipi in the South Kanara District there are eight Maths
Each Math is presided over by a Mathadhepathi or Swamee.
There is a nineth Math the administration of. which had been
traditionally carried on by each of the Swamis of the other
eight Maths in turn. There is a tenth Math which ’is
presided over by Shri Shankaracharya Swamigal.
The Swami of Shirur Math, one of the eight Maths had
challenged the vires of the Hindu Religious Endowments Act
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1951 (Act XIX) in the High Court of Madras and in the appeal
therefrom this Court had declared certain sections of the
Act ultra vires inasmuch as they infringed Article 19 (1)
(f), 25, 26 and 27 of the Constitution. Subsequently by Act
XXVII of 1954 the Madras Legislature omitted or amended the
sections declared by this Court ultra vires. Petitions were
filed in the High Court challenging various sections of the
amended Act. The High Court declared ultra vires sections
21, 30(2), 31 and 76(5) and Rule 10 framed under section
100(2). and upheld the validity of sections 51 (1) (f), 55,
76 (1) and (2), 80, 81 and 82. The Mahant appealed to this
Court with Certificate granted by the High Court.
Held, that a Mahant is not a mere manager or custodian. By=
though he is not a trustee in the strict sense, he is by
303
virtue of his office under an obligation to discharge the
duties of his office as a trustee and is answerable as such
for the property. The property is attached to the office and
the Mahant cannot incur expenditure for personal luxury or
objects incongruous with his position as Mahant. The right
of a Mahant over the property of the Math is undoubtedly
property and unreasonable restrictions placed upon his
rights which are not in the interest of the general public
would by virtue of Art. 19(1)(f) read with cl. (5) be void.
Arunachallam Chetti v. Venkata Chalapathi Guruswamigal,
(1919) L.R. 46 I.A. 204, Vidyavaruthi Thirtha v. Baluswami
Ayyar, (1921) L.R. 48 I.A. 302, Commissioner Hindu Religious
Endowments, Madras v. Lakshmi Tirtha Swamiar of Sirur Math,
[1954] S.C.R. 1005, followed.
Held, that s. 52 (1) (f) does not in effect seek to cut down
the authority of the Mahant which is traditionally
recognized. It only implies that by virtue of his position
and the limited character of his powers, he cannot waste the
property of the Math or utilise it for his personal
enjoyment or luxury or for objects incongruous with his
position or for purposes wholly unconnected with the Math.
Such a restriction on his power is in the interest of
general public and cannot be said to be unreasonable.
Section 55 as amended will not apply to Pathakanikas which
are proved to be gifts personal to the Mahant and it applies
only to Paaokarikas gifted to him as the bead of the Math.
The annual contributions levied under the amended s. 16(1)
go into a separate fund and not the consolidated fund of the
state and are earmarked for defraying the expenses for
rendering services : they are not even payable to the
Government but are payable to the Commissioner and they are
levied not as a tax but only as fee. A fee does not cease
to be of that character merely because there is an element
of compulsion in it, nor is it a postulate of a fee that it
must have direct relation to the actual service rendered.
Absence of uniformity is not a criterion on which alone it
can be said that the levy is of the. nature of a tax. The
Legislature has power to enact appropriate retrospective
legislation declaring these levies as fees by denuding them
of the characteristics of tax.
M/s. J. K. Jute Mills Co. Ltd. v. State of Uttar Pradesh,
[1962] 2 S.G.R. 1, followed.
The State Legislature has power to levy a fee under the
Seventh Schedule, List II, Item 28 read with item 47,
304
JUDGMENT:
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 551 to
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560 of 1961.
Appeals from the judgment and order dated December 9, 1955
of the Madras High Court in Writ Petitions Nos. 323, 324,
351 to 357 and 359 of 1955.
Purshottam Trikumdas, R. Ganapathy Iyer and G.
Gopalakrishnan, for the appellants (in C. As. Nos. 551-
559/61).
A. V. Viswanatha Sastri and M. S. K. Sastri, for the
appellant (in C. A. No. 560/61).
G. S. Pathak, B. R. L. Iyengar and P. D. Menon, for the
respondent No. 1 (in C. A. No. 551/61) and for the
respondents in (C. As. Nos. 552 to 559 of 1961).
A. Ranganadham Chetty and A. V. Rangam, for the
respondents (in C. A. No. 560/61).
1962. November 20. The judgment of the Court was delivered
by.
SHAH., J.-In this group of appeals certified by the High
Court of Madras under Art. 132 (1) of the constitution the
validity of ss.52(1)(f), 55, 76(1) & (2), 80, 81 and 82 of
the Madras Hindu Religious Endowments Act XIX of 1951
asamended by Act XXVII of 1954 is impugned.
At Udipi in the South Kanara District there are eight Maths
which are reputed to be founded by Shree Madhvacharya, an
exponent of the dualistic philosophy. Each of these Maths is
presided over by a Mathadhipati or Swami who is invariably a
Brahmin Sanyasin. There exists another Math known as Shri
Krishna Devaru Math of which the administration is carried
on according to long-standing usage by the Swamis of the
eight Maths in turn,
305
each Swami administering for two years. There is also the
Sri Kanchi Kamakoti Peetam Math of which Shree Sank-
aracharya Swamigal is the presiding head.
These ten appeals are directed against orders passed by the
High Court of Madras refusing to declare the provisions
aforesaid ultra vires the State Legislature.
In order to ensure proper management of Hindu religious
endowments, the Provincial Legislature of Madras enacted the
Hindu Religious Endowments Act. II of 1927. The Act made
divers provisions for enforcing supervision over the
management of Hindu endowments, and a Board was constituted
for that purpose. In exercise of the authority under the
Act several restrictions were placed upon the powers of the
trustees of religious endowments, schemes were framed for
administration thereof and executive officers were appointed
to administer Maths and other religious endowments. An
enquiry was commenced before the Hindu Religious Endowments
Board for ascertaining whether in the interests of the
Shirur Math (one of the eight maths at Udipi) a scheme for
the administration of the Math be framed, it being alleged
that the affairs of the Math were mismanaged by the Swami.
The Board being satisfied that a case for settling a scheme
was made out served upon the Swami of the Math a draft
scheme and called upon him to file his objections thereto.
The Swami filed a petition in the High Court of Madras
challenging the vires of Act II of 1927, and especially the
provisions under which the scheme was sought to be framed.
During the pendency of that petition, Act 11 of 1927 was
repealed by the Madras Legialature and was substituted by
Act XIX of 1951, enacting diverse provisions relating to the
governance, management and administration of Hindu Religious
Endowments. The Swami of Shirur.Math obtained leave to
amend
306
the petition and challenged the validity of Act XIX of 1951
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on the ground that the provisions thereof infringed his
fundamental rights and that in any event certain provisions
were beyond the legislative competence of the State
Legislature.
The High Court of Madras declared several provisions of the
Act ultra vires, as infringing Arts. 19 (1) (f), 25, 26 and
27 of the Constitution. The Court also declared s. 76 (1)
ultra vires because the State Legislature had thereby
assumed powers to legislate for levy of a tax on the income
of religious endowments which the State Legislature was
incompetent to exercise. The State of Madras appealed
against the order of the High Court. This Court declared
invalid s. 21 (provision authorising the Commissioner and
his subordinates to enter premises of religious endowments
or places of worship in the exercise of powers conferred or
duties imposed by or under the Act), s. 30 (2) (requiring
the swamis to be guided by the instructions of the
Commissioner or the Area Committee in the matter of
incurring expenditure), s. 31 (relating to expenditure of
surplus income with the sanction of the Commissioner), s. 55
(dealing with Mahant’s powers over pathakanikas personal
gifts), S. 55 (dealing with Commissioner’s authority to
require the trustees of the Endowments to appoint a Manager)
and ss. 63 to 69 (relating to notification of religious
institutions and invoking thereby certain penal
consequences.) This Court also held that s. 76 (1) whichauthorised
levy of contributions at the rate not exceeding five per
cent of the income of the endowments was beyond the
power of the State Legislature to enact. The judgment of
this Court in that case is reported as : The Commissioner,
Hindu Religious Endowments, Madras v. Sri Lakshmindra
Thirtha Swamiar of Sri Shirur mutt (1).
The Madras Legislature amended Act XXVII of 1954 which
received the President’s sanction on
(1) [1954] S. C. R. 1005.
307
September 22, 1954, and thereby provisions which were
declared by this Court ultra vires, were altered or omitted
and some new provisions were enacted with a view to make the
enactment consistent with the law declared by this Court.
Petitions were then filed by the appellants-heads of ten
maths--challenging the validity of diverse provisions of the
amended Act. The High Court by its order dated April 25,
1955 declared ss. 21, 30 (2), 31 and 76 (5), and Rule 10
framed under s. 100(2) invalid. The High Court, however,
upheld the validity of ss. 52 (1) (f), 55, 76 (1) & (2), 80,
81 and 82. In these appeals the Swamis of the maths contend
that the provisions declared valid by the High Court
infringe the fundamental rights of the Swamis or are beyond
the authority of the State Legislature.
It may be observed initially that we are dealing with the
validity of the impugned provisions in their application to
maths and not to religious institutions such as temples or
other endowments. It may also be observed that Act XIX of
1951 has been repealed by the Madras State Legislature and
has been substituted by Act XXII of 1959, but we are not
called upon to adjudicate upon the validity of the
provisions of the new Act because the territory in which
these maths are situated has, by the provisions of the
States Reorganisation Act, 1956 been integrated with the
State of Mysore as from November 1, 1956 and by virtue of s.
119 of the States Reorganisation Act these maths continue to
be governed by Act XIX of 1951 till that Act is modified or
repealed by the Mysore State Legisture.
Section 52 (1) of the Act as amended provides :
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"The Commissioner or any two or more persons
having interest and having obtained the
308
consent in writing of the Commissioner, may
institute a suit in the Court to obtain a
decree for removing the trustee of a Math or a
specific endowment attached to a Math for any
one or more of the following reasons, namely
(a) the trustee being of unsound mind-,
(b) his suffering from any physical or
mental defect or infirmity which renders him
unfit to be a trustee ;
(c) his having ceased to profess the Hindu
religion or the tenets of the math ;
(d) his conviction for any offence involving
moral turpitude ;
(e) breach by him of any trust created in
respect of any of the properties of the
Religious institutions ;
(f) waste of the funds or properties of the
institution or the application of such funds
or properties for purposes unconnected with
the institution ;
(g) the adoption of devices to convert the
income of the institution or the funds or
properties thereof into ’pathakanikas’
(h) leading an immoral life or otherwise
leading a life which is likely to bring the
office of the head of the math into contempt ;
(i) persistent and wilful default by him in
discharging his duties or functions under this
Act or any other law."
309
This section authorises the Commissioner or two or more
persons interested in the endowment with the consent of the
Commissioner to institute a suit for a decree for removal of
the trustee of a Math or a specific endowment attached to a
Math on any of the grounds. mentioned therein. the section
is similar to S. 92 of the Code of Civil. Procedure though
somewhat restricted in its operation as to the reliefs which
may be claimed : it merely enumerates the grounds on which
the Court may, in a suit instituted thereunder, remove the
trustee of a Math or of a specific endowment, if the Conrt
is satisfied that the grounds set up exist and also that it
is in the interest of the institution to remove the trustee.
Grounds (a), (b), (c), (d) and (h) are grounds of personal
infirmity of the trustee; grounds (e), (f), (i) and (i) deal
with conduct inconsistent with the exercise of the duties of
a trustee. Clauses (f), (g) and (h) were inserted by Madras
Act XXVII of 1954. Apart from cl. (c) which regards breach
of trust as entailing liability for removal, cls. (f), (g),
and (i) have been enacted by the Legislature with a view to
entail such liability when the trustee of a math is guilty
of improper conduct qua property of the math notwithstanding
his special rights in that property.
It is urged by counsel for the appellants that s. 52(1)(f)
which enables a suit to be filed on the score of waste of
funds or properties of the institution or application of
such funds or properties for purposes unconnected with the
institution, infringes the fundamental right of the
Mathadhipati under Art. 19(1)(f) of the Constitution. In
order to ascertain the true scope of s. 52(1) (f)it is
necessary to state the position of a Mathadhipati, qua the
property of the math. In Arunachallam Chetty v.
Venkatachalapathi Guruswamigal (1) dealing with the title
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which a Mahant of a math has in the property of the math,
the judicial Committee of the Privy Council observed
"two propositions may be cited as now express-
ing the general state of the law. with regard
to
(1) (1919) L. R. 46 I. A. 204, 224,
310
these institutions. In the first place, the
nature of the ownership is an ownership in
trust for the institution itself. Secondly,
while it may no doubt be true that the
ownership in the general case is with the
spiritual head of the ’institution, still to
use the language of Sir Charles Turnver in
Sammanatha Pandara v. Sellapa Chetti (I.L.R. 2
Madras 179) ’We do not, of course, mean to lay
it down that............ the property may not
in some cases be held on different conditions
and subject’ to different incidents.’ As
pointed out in Ram Parkaah Das v. Anand Das
there are varieties of circumstances and
tenure, and in respect to these the usage and
custom of the math fall to be determined.
Once that usage and custom are clear they form
the law of the math.
In Vidya Varuthi Thirtha v. Balusami Ayyangar (1) the
judicial Committee dealing with the application of Arts. 134
and 144 to suits for recovery of property alienated by a
former Mathadhipati observed:
"It is also to be remembered that a "trust’ in
the sense in which the expression is used in
English law, is unknown in the Hindu System,
pure and simple. Hindu piety found expression
in gifts to idols and images consecrated and
installed in temples, to religious
institutions of every kind, and for all
purposes considered meritorious in the Hindu
social and religious system; to brahmans,
goswamis, sanyasis, etc. When the gift was to
a holy person, it carried with it in terms or
by usage and custom certain obligations. x x x
x x In many cases in Southern India,
especially where the diffusion of Aryan
Brahmanism was essential for bringing the
Dravidian peoples, under the religious rule of
the Hindu system, colleges and monasteries
under the names of math were
(1) (1921) L R. 48 I. A. 302.
311
founded under spiritual teachers of recognised
sanctity. These men had and have ample
discretion in the application of the funds of
the institution, but always subject to certain
obligations and duties, equally governed by
custom and usage."
In The Commissioner, Hindu Religious Endowments, Madras v.
Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1) (to
which we have already referred in setting out the history of
this case) Mukherjea, J., speaking for the Court, observed :
"He is certainly not a trusteee in the strict
sense. He may be as the Privy Council says, a
manager or custodian of the ’institution who
has to discharge the duties of a trustee and
is answerable as such; but he is not a mere
manager and it would not be right to describe
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Mahantship as a mere office. A superior of a
Math has not only duties to discharge in
connection with the endowment but he has a
personal interest of a beneficial character
which is sanctioned by custom and is much
larger than that of a Shebait in the debutter
property. x x x x x x x x x Thus in the
conception of Mahantship, as in Shebaitship,
both the elements of the office and property,
or duties and personal interest are blended
together and neither can be detached from the
other. The personal or beneficial interest of
the Mahant in the endowments attached to an
institution is manifested in his large powers
of disposal and administration and his right
to create derivative tenures in respect to
endowed properties; and these and other rights
of a similar character of proprietary right
which, though anomalous to some extent, is
still a genuine legal right."
A Mahant is not a mere manager or custodian, nor is he
trustee in the strict sense: holding the office of
(1)[1954] S. C. R. 1005.
312
a Mahant by custom and usage of the institution he has
beside large powers of management and disposal certain
proprietary rights over the property of the Math. But he is
by virtue of his office under an obligation to discharge the
duties as a trustee and is answerable as such. The Mahant
of a Math is generally a Sanyasin who has renounced worldly
affairs: he has no family ties either by blood or by
marriage, and in a theoretical sense he has taken a vow of
not owning any property. He has undoubtedly, for the
benefit of the institution of which he is the head, large
powers : he has to incur expenditure for the maths i. e. for
carrying on the religious worship, for the desciples and for
maintaining the dignity of his office. But the property is
attached to the office, and is devoted to the endowment. He
cannot therefore iucur expenditure for personal luxury or
objects ircongruous with his position as a Mahant. Power to
waste the property or the income of the institution is
therefore not claimed by the appellants and rightly so.
But counsel for the appellants says that over the income,
the Mahant has absolute powers of disposal, and s. 52 (1)
(f) which authories his removal on the ground that he has
applied the funds or properties of the institution for
purposes unconnected with the institution places an
unreasonable restriction upon the right of property vested
in the Mahant. In the Commissioner, Hindu Endownents,
Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt
(1) Mukherjea, J., observed at p. 1019 :
"There is no reason why the word ’property’ as
used in article 19 (1) (f) of the
constitution, should not be given a liberal
and wide connotation and should not be
extended to those welt recognized types of
interest which have the insignia or
characteristics of proprietary right."
The right of a Mahant over property of the math is,
therefore, undoubtedly ’property’ and
(1)[1954] S. C. R. 1005.
313
unreasonable restrictions placed upon right of the Mahant
which is not in the interest of the general public would, by
virtue of Art. 19 ( 1) (f ) read with cl. (5) be void.
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Reasonableness of the restrictions which may be placed upon
that right must be adjudged in the light of the character
and the extent of that right, and the general interest of
the public which may be served by the restrictions. In
Arunachallam Chetty v. Venkatachalapathi Guruswamigal (1)
the Judicial Committee of the Privy Council observed that
the Mahant is under an obligation not to utilise the surplus
income after defraying the expenses of the math for personal
enjoyment but is bound to add the same to the capital of the
estate administered. At p. 226 the judicial Committee
dealing with the accummulated income in the hands of the
receiver who had been appointed during the pendency of a
suit observed :
"Under the decree quoted the gurukkal would be
entitled to instant possession and entire
beneficial enjoyment of that sum. If the
present purposes of the math did not consume
it, he could employ it for his personal use
quite apart from the dignity of his office.
It is plain to their Lordships that this would
be not only a subversion of the usage and
custom of the math, but would be a violation
of the Law applicable to such institutions. A
fair test to be applied in such cases is to
demand what is the true principle or nature of
the administration of surplus income. It is,
of course,, the duty of a trustee to refrain
from the personal enjoyment of such surplus
and to add the same to the capital of the
estate to be administered ; and this Law also
applied to the property of a math or asthal,
and that whether the title to the same is in
the gurukkal
(1) (1919) L. R. 46 I.A. 204,224.
314
as spiritual head of the institution-which is
an ordinary case-or is in trustees like the
Chettys according to the usage and custom of
the institution as in the present case."
The power of the Mahant over the income does not therefore
differ in quality from the power he has over the property
of the Math. The property and the income belong to the
math, and must therefore be applied for the purposes of the
math, and con. sistently with the usage and custom of the
endowment. By s. 52 (1) (f) application of funds or pro-
perties for purposes unconnected with the institution, i. e.
purposes for which the custom of the institution does not
warrant application, is a ground for removal. It cannot be
said that by enacting a provision which enables a Court, in
an appropriate case, to remove a Mahant if it be found that
he has applied the funds or the properties of the
institution for purposes unconnected with the institution,
any unreasonable restriction is sought to be placed. This
provision does not in effect seek to cut down the authority
of the Mahant which is traditionally recognised. It merely
implies that by virtue of his position and the limited
character of his powers he may not waste the property of the
Math or utilise the property for personal enjoyment or
luxury or for objects incongruous with his position or for
purposes wholly unconnected with the Math : if he does so,
he may by order of the Court be liable to be removed. Such
a restriction on the power is in the interest of the general
public, and cannot be said to be unreasonable.
We may, however, say that the observations made by the
learned judges of the High Court that it was decided by this
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Court in the Commissioner, Hindu Endowments, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1) that "the
real limitations on the Mathadhipathi are that he should not
spend any of the monies of the Math for
(1) [1954] S.C.R. 1005.
315
wicked or immoral purposes" does not seem to be war-ranted
by anything contained in the judgment of this Court. The
observation is founded on a dictum of the High Court in the
judgment under appeal in that case, but there is no
indication that this Court approved that view. This Court
has instead pointed out that the Mahant has to discharge the
duties of a trustee qua the institution and is answerable as
such. We deem it necessary also to state that having regard to the larg
e powers which the Mahant has over the
application of the funds not only for the maintenance of the
dignity of his office, and expenses for the maintenance of
the math but also for such purposes religious or charitable
as are not inconsistent with the usage and custom of the
endowment, application of the funds for personal enjoyment
or luxury by the Mathadhipati or for purposes wholly
unconnected with the institution, would alone be covered by
the second part of s. 52 (1) (f). In our view the provision
which authorises the institution of a suit for removal of a
Mahant where he is found to have wasted the funds or
properties of the institution or has applied such funds or
properties for purposes wholly unconnected with the
institution does not amount to an unreason. able restriction
upon the fundamental right of the Mahant in the property
under his management.
Section 55, before it was amended, was challenged in the
earlier proceeding as being invalid on the ground that it
sought to place an unreasonable restriction upon the powers
of the Mahant over gifts personal to him. It was provided
by s. 55 (1) as originally enacted by Act XIX of 1951 that :
"The trustee of a Math shall be entitled to
spend at his discretion, for purposes
connected with the Math any ’Pathakanika’ that
is to say any gift or property or money made
as a personal gift to him as the head of the
Math."
316
By sub-section (2) the trustee had to maintain regular
accounts of receipts and disbursements of the nature
referred to in subsection (1). The Mahant was therefore
enjoined by the Act to spend ’Pathakanika’ for the purposes
of the math, and that amounted in the view of the Court as
an unwarranted restriction of the property right of the
Mahant. Pathakanikas are as expressly stated in sub-section
(1) personal gifts to the Mahant, and normally such gifts
would be at the disposal of the Mahant. It was observed by
this Court in the earlier case
"It may be that according to customs
prevailing in a particular institution, such
personal gifts are regarded as gifts to the
institution itself and the Mahant receives
them only as the representative of the
institution: but the general rule is
otherwise. As section 55 (1) does not say
that this rule will apply only when there is a
custom of that nature in a particular
institution, we must say that the provision in
this unrestricted form is an unreasonable
encroachment upon the fundamental right of the
Mahant. The same objection can be raised
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against clause (2) of the section; for if the
Pathakanikas constitute the property of a
Mahant. There is no justification for
compelling him to keep accounts of the
receipts and expenditure of such personal
gifts. As said already if the Mahant dies
without disposing of these personal gifts,
they may form part of the assets of the Math,
but that is no reason for restricting the
powers of the Mahant over these gifts so long
as he is alive."
The Legislature of the Madras State thereafter repealed both
the sub-sections of s. 55, and has reenacted a new clause
"The trustee of a math shall keep regular
accounts of receipts of ’pathakanika’ that is
to
317
say, any gift of property made to him as the
head of the math and shall be entitled to
spend the said ’pathakanika in ’accordance
with the customs and usages of the
institution’."
By express enactment the expression ’pathakanikas’ for the
purpose of s. 55 as amended, means gifts of property made to
a Mahant as the head of the Math. By that section, the
Mahant is required to keep regular accounts of receipts of
such gifts and is entitled to spend the same in accordance
with lie customs and usages of the institution, for such
pathakanikas received by the Mahant are gifts to the Mahant
as the head of the math and therefore in trust gifts to the
Math. Obligations imposed upon the Mahant to maintain
regular accounts of the receipts of pethakanikas of the
character defined in s. 55 and to utilise the same in
Accordance with the customs and usages of the institution
cannot be regarded as an unreasonable restriction upon the
fundamental right of the Mahant. A Mahant being bound to
discharge the duties of a trustee and being answerable as
such, a provision requiring him to maintain accounts of such
pathakanikas would conduce to the effective exercise of the
control over him and imposing an obligation to spend the
same in accordance with the customs and usages of the
institution is not inconsistent with his position as a
Mnhant even though lie has a beneficial interest therein.
Section 55 as amended will not apply to pathakanikas which
are proved to be gifts personal to the Mahant.
Our attention was invited by counsel for the appellants to
cl. (g) of s. 52 (1) in which I adoption of devices to
convert the income of the institution or of the funds or
properties thereof into pathakanikas is one of the grounds
on which a suit for removal of a Mahant may lie. But the
expression ’pathakanika’ as used in s. 52 (1) (g) appears to
have the larger meaning in which that expression is
traditionally
318
understood. In the context of s. 52 (1) (g), ’pathakanika’
would mean personal gifts to the Mahant. If the Mahant
resorts to devices to convert the income of the institution
or of the funds or properties thereof into personal gifts
made to him that would be improper conduct for which he
would be liable to be removed in a suit under s. 52. But
under s. 55 the Legislature has expressly restricted the
meaning of the expression "pathakanika’ by using the words,
’that is to say, any gift of property made to him as the
head of he math. We are therefore unable to hold that the
expression ’Pathakanika’ in s. 55 means personal gifts and
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the Legislature by enacting that section was attempting to
re-enact s. 55 as it originally stood in a different garb.
The next section challenged is s. 76 (1). The section, as
it originally stood before it was amended, provided :
"76 (1) In respect of the services rendered by
the Government and their officers, every
religious institution shall, from the income
derived by it, pay to the Government annually
such contribution not exceeding five per
centum of its income as may be prescribed.
(2) Every religious institution, the annual
income of which for the fasli year immediately
preceding as calculated for the purposes of
the levy of contribution under sub-section
(1), is not less than one thousand rupees,
shall pay to the Government annually, for
meeting the cost of auditing its accounts,
such further sum not exceeding one and a half
per centum of its income as the Commissioner
may determine.
(3) The annual payments referred in sub-
sections (1) and (2) shall be made, notwith-
standing anything to the contrary contained in
319
any scheme settled or deemed to be settled
under this Act for the religious institution
concerned.
(4) The Government shall pay the salaries,
allowances, pensions and other beneficial remu
-
neration of the Commissioner, Deputy Commi-
ssioners, Assistant Commissioners and other
officers and servants (other than executive
officers of religious institutions) employed
for the purposes of this Act and the other
expenses incurred for such purposes, including
the expenses of Area Committees and the cost
of auditing the accounts of religious
institutions."
The Court in the earlier case pointed out that the levy of
an annual contribution permitted by s. 76(1) on a religious
institution was in the nature of a tax. The Court observed
that in so far ass. 76 spoke of the contribution being
levied in respect of the services, it had the appearance of
a fee, but the contribution levied was made dependent upon
the capacity of the payer and not upon the quantum of
benefit that was supposed to be conferred on any particular
religious institution, that the institutions which came
under the lower income group and had income less than Rs.
1,000/- annually were excluded from liability to pay the
additional charges under cl. (2) of the section lending
thereby to it one of the characteristics of a tax which bore
a close analogy to income-tax, and that the amount "raised
by the levy of the contribution was not ear-marked or
specified for defraying expenses that the Government had to
incur in performing the services". All the collections went
into the Consolidated Fund of the State and all the.
expenses had to be met not out of those collections but out
of the general revenues by a proper method of appropriation
as was done in case of other Government expenses. There was
again a total absence of any co-relation between the
expenses incurred by the
320
Government and the amount raised by the levy of contribution
and therefore the theory of a return or quid pro quo could
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not have any possible application. The Court accordingly
held that the contribution levied under s. 76 was a tax and
not a fee and such a tax it was beyond the power of the
State Legislature to levy.
altered the scheme of s. 76. The Madras High Court has
declared the newly enacted cl. (5) ultra vires and that part
of the decision of the Court is not challenged before us.
By the impugned cl. (1) the defects in the original section
have been remedied by the Legislature. Contributions are
now payable to the Commissioner and not to the Government,
and they are to be levied expressly in respect of services
rendered by the Government and their officers, and for
defraying the expenses incurred on account of such services.
By sub-section (2) every religious institution, the annual
income of which is not less than one thousand rupees, has to
pay to the Commissioner annually, for meeting the cost of
auditing its accounts, such further sum not exceeding one
and a half per centum of its income as the Commissioner may
determine. By sub-section (4) the Government is required to
pay the salaries, allowances, pensions and other ’beneficial
remuneration’ of the Commissioner, Deputy Commissioner,
Assistant Commissioners and other Officers and servants
employed for the purposes of the Act and also to defray the
other expenses incurred for such purposes, including the
expenses of Area Committees and the cost of auditing the
accounts of religious institutions. The section manifestly
provides for levy of contribution at a rate not exceeding
five per cent of its income from all religious institutions,
and audit fee from religious institutions of which the
income is Rs. 1,000/- or more, but all the amounts collected
under cls. (1) and (2) have to be spent for meeting
321
the expenses in connection with the performance of the
duties rendered to the religious institutions and for no
other purposes. By section 81 (1) a separate Fund called
"’The Madras Hindu Religious and Charitable Endowments
Administration Fund" is constituted and that Fund vests in
the Commissioner, and by cl. (2) of that section the
contributions payable under s. 76 (1) and the audit fee
payable under s. 76 (2) when realized are credited in the
said Fund. The two principal objections against the levy of
the contribution under s. 76 before it was amended were (1)
that the money raised by levy of the contribution was not
earmarked or specified for defraying the expenses that the
Government had to incur in performing services. All the
collections went to the Consolidated Fund of the State and
all the expenses were not met out of the collections but out
of the general revenues by a proper method of appropriation
as is done in case of other Government expenses, and (2)
that there was a total absence of any co-relation between
the expenses incurred by the Government and the amount
raised by contribution under the provision of s. 76. The
Legislature has by the amendment of s. 76 (1) and (4) and
the constitution of a separate Fund under s. 81 rectified
both these defects. The amounts raised are specifically
ear-marked for defraying expenses for rendering services :
they do not go into the Consolidated fund of the State, but
are included in a separate Fund. The Contributions are not
even payable to the Government they are payable to the
Commissioner.
It was urged that there was no co-relation between the
expenses incurred and the amounts collected as
contributions, but there is no reliable evidence on the
record in support of this plea. Our attention was invited
to Ex. ’A’ referred to in paragraph-2 of the supplemental
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counter-affidavit of the State of Madras in Writ Petition
No. 323 of 1955, in which
322
an abstract of the receipts and charges was set out. It was
stated in that document:
"During the period from 30th September 1951 to
30th June 1952 the total receipts under the
head XXXVI Miscellaneous-(c.) Miscellaneous
Administration of Madras Hindu Religious and
Charitable Endowments Act, 1951" amounts to
Rs. 3,16,013-1-3 and the total receipts under
"XLVI-Miscellaneous (d) fees for Government
Audit" by way of contribution recovered from
the religious institutions amounted to Rs.
2,27,531-4-10. The total expenditure during
the said period towards salary and allowances
of the officers and staff contingencies and
fees paid to private auditors for auditing the
accounts of religious institutions amounted to
Rs. 6,93,539-10-3."
Then followed a chart for fasli years 1361, 1362, 1363 and
1364 setting out different heads such as Arrear Demand,
Current Demand, Total Demand and, Write off, Net Demand,
Collection and Balance. J appears from the Chart that there
were large arrears in the collection of contributions and by
the end of the fasli year 1364 the arrears exceeded 15.50
lakhs. An abstract at the foot of the chart shows that the
total actual collections amounted to Rs. 19.74 lakhs and the
balance recoverable for the four fasli years was Rs. 15.75
lakhs. The total expenditure for 31 out of the four years
was Rs. 26.4 lakhs. It is difficult to draw an inference
from this document that the demand of contribution was
wholly unrelated to the expenditure incurred out of the
accumulations. No attempt was made before the High Court to
establish that the levy of contribution at the rate of five
per cent was so exorbitant that it could be said to have no
true relation to the value of the services rendered to the
endowments by the administration. Our attention was also
invited to a statement of account
323
showing that the Commissioner received when the Act of 1951
was brought into force a total investment in fixed deposits,
Government stock certificates, debentures of co-operative
land mortgage bank, national savings certificates and in
banks a total account exceeding Rs. 18 lakhs. But this is
the accummulation during a period of nearly 25 years when
the Act of 1927 was in operation. There is no evidence on
the record as to the sources from which the fund was
accummulated. From this statement of account it would not
be possible to infer that the contributions under s. 76(1)
of the Act of 1951 were wholly disproportionate to the value
of the services to be rendered. A levy in the nature of a
fee does not cease to be of that character merely because
there is an element of compulsion or coerciveness present in
it, nor is it a postulate of a fee that it must have direct
relation to the actual services rendered by the authority to
individual who (btains the benefit of the service. If with
a view to provide a specific service, levy is imposed by law
and expenses for maintaining the service are met out of the
amounts collected there being a reasonable relation between
the levy and the expenses incurred for rendering the
service, the levy would be in the nature of a fee and not in
the nature of a tax. It is true that ordinarily a fee is
uniform and no account is taken of the varying abilities of
different recipients. But absence of uniformity is not a
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criterion on which alone it can be said that it is of the
nature of a tax. A fee being a levy in consideration of
rendering service of a particular type, corelation between
the expenditure by the Government and the levy must
undoubtedly exist, bat a levy will not be regarded as a tax
merely because of the absence of uniformity in its
incidence, or because of compulsion in the collection
thereof, nor because some of the contributories do not
obtain the same degree of service as others may.
324
Section 80 makes the Commissioner a corporation sole with
perpetual succession and s. 81 provides for the constitution
of the Madras Hindu Religious and Charitable Endowments
Administration Fund. These sections have been enacted with
the object of establishing a distinct Fund out of the income
of the endowments totally unrelated to the general revenues
of the State. By s. 82 contributions which had been levied
under the Act XIX of 1951 before it was amended by the Act
XXVII of 1954 under s. 76(1) and (2) have been validated.
Section 82 provides :-
"82. (1) Contributions under section 76(1) and
the further sums payable under section 76(2)
shall be payable with effect from the
commencement of this Act. For the period from
the commencement of this Act until the
commencement of the Madras Hindu Religious and
Charitable Endowments (Amendment) Act, 1954,
the rate prescribed by the Government under
section 76(1), or determined by the Com-
missioner under section 76(2), shall be deemed
to be the rate prescribed or determined under
section 76(1) or section 76(2), as the case
may be,_ as amended by the Madras Hindu
Religious and Charitable Endowments (Amend-
ment) Act, 1954, and contributions and further
sums paid to the Government shall be deemed to
be contributions and further sums, as the case
may be, paid to the Commissioner under section
76(1) and section 76(2) as amended by the
Madras Hindu Religious and Charitable
Endowments (Amendment) Act, 1954.
(2)The Government shall pay to the
Commissioner the balance, if any, remaining
out of the aggregate of the contributions and
further sums paid or realized before the com-
mencement of the Madras Hindu Religious
325
and Charitable Endowments (Amendment) Act,
1954, in pursuance of section 76(1) and
section 76(2), after deducting therefrom sums
paid by the Government under section 76(4)."
It is true that the contributions levied under s. 76(1) of
the Act before it was amended had the characteristic of a
tax, and the levy thereof was accordingly struck down. But
the Legislature had power to enact appropriate retrospective
legislation declaring these levies as fees by denuding them
of the characteristics which went to make the levies of the
nature of a tax. By the express provision contained in sub-
section (1) of s. 82 the rates prescribed under s. 76(1) or
determined by the Commissioner under s.76(2), under the Act
as originally enacted were to be deemed rates prescribed
under ss. 76(1) or determined under s. 76(2) as amended by
the Act XXVII of 1954, and contributions and other sums paid
to the Government were to be deemed as contributions and
other sums paid to the Commissioner under ss. 76(1) and (2)
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as amended. Retrospectively the payments received by the
Government were dissociated from the general governmental
revenues and by sub-section (2) account was to be made on
the footing that these payments constituted a distinct and
separate fund and all payments were deemed to be received by
the Commissioner and not by the Government. That
retrospective legislation may be enacted is not now open to
question. In M/s. J. K. Jute Mills Co. Ltd. v. State of
Uttar Pradesh it was held by this Court :
"The power of a legislature to enact a law
with reference to a topic entrusted to it, is
x x x unqualified subject only to any limit-
ation imposed by the Constitution. In the
exercise of such a power it will. be competent
for the legislature to enact a law, which is
(1)[1962] 2 S.C.R. 1
326
either prospective or retrospective. In Union
of India v. Madan Gopal, 1954, SCR 541: it was
held by this Court that the power to impose
,tax on income under entry 82 of List 1 in
Schedule VII to the Constitution, comprehended
the power to impose income-tax with
retrospective operation even for a period
prior to the Constitution. The position will
be the same as regards laws imposing tax on
sale of goods. In M. P. V. Sundraramier & Co.
v. State of Andhra Pradesh, 1958 S.C.R. 1422,
this Court had occasion to consider the
validity of a law enacted by Parliament giving
retrospectively operation to laws passed by
the State legislatures imposing a tax on
certain sales in the course of inter-State
trade. One of the contentions raised against
the validity of this legislation was that,
having regard to the terms of Art. 286 (2),
the retrospective legislation was not within
the competence of Parliament. In rejecting
this contention, the court observed:
’Article 286 (2) merely provides that no law
of a State shall impose tax on inter-state
sales "except in so far as Parliament may by
law otherwise provide’. It places no
restriction on the nature of the law to be
passed by Parliament. On the other hand, the
words "in so far as’ clearly leave it to
Parliament to decide on the form and nature of
the law to be enacted by it. What is material
to observe is that the power conferred on
Parliament under Art. 286(2) is a legislative
power, and such a power conferred on a
Sovereign Legislature carries with it
authority to enact a law either prospectively
or retrospectively, unless there can be found
in the Constitution itself a limitation on
that power.’ And it was held that the law was
within the competence of that Legislature. We
must therefore hold that the
327
Validation Act is not ultra vires the powers
of the legislature under entry 54, for the
reason that it operates retrospectively."
The State Lagislature has power to levy a fee under the
Seventh Schedule, List III, Item 28 read with item 47. The
Legislature was, therefore, competent to levy a fee for
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rendering services in connection with the maintenance,
supervision and control over the religious institutions and
it was competent to levy the fee retrospectively. If the
amounts received by the State have been expressly regarded
as fee collected by the Commissioner tinder the provisions
as amended and account has to be made on that footing
between the Government and the Commissioner, challenge to
the vires of s. 82 (2) must fail.
In our view the High Court was right in declaring ss.
52(1)(f), 55, 76(1) & (2), 80, 81.,and 82 intra vires. The
appeals therefore, fail and are dismissed with costs. One
hearing fee.
Appeals dismissed.
328