Full Judgment Text
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PETITIONER:
H. H. SHRI SWAMIJI OF SHRI ADMAR MUTT, ETC.
Vs.
RESPONDENT:
THE COMMISSIONER, HINDU RELIGIOUS & CHARITABLE ENDOWMENTSDEP
DATE OF JUDGMENT27/08/1979
BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
CHANDRACHUD, Y.V. ((CJ)
KRISHNAIYER, V.R.
UNTWALIA, N.L.
SHINGAL, P.N.
KOSHAL, A.D.
CITATION:
1980 AIR 1 1980 SCR (1) 368
1979 SCC (4) 642
CITATOR INFO :
R 1983 SC 617 (7)
F 1983 SC1246 (30)
R 1984 SC 121 (18,23)
R 1985 SC 218 (9)
RF 1989 SC 317 (34)
D 1989 SC1624 (11)
RF 1992 SC1383 (14)
ACT:
States Reorganisation Act, 1956-A district transferred
from one State to another-Continued application of the law
applicable in the former State even after transfer-Validity
of.
Section 109-Commissioner of Religious Endowments-A body
corporate-Commissioner, if could exercise powers under the
Act creating him as body corporate if no directions issued
by the Central Government.
Fees and Tax-Nature of.
HEADNOTE:
The religious Mutts, of which the appellants were
Mathadhipatis, were situated in the District of South Kanara
which formerly was in the State of Madras. Section 76(1) of
the Madras Hindu Religious and Charitable Endowments Act,
1951, the law applicable to the Mutts, provides that in
respect of services rendered by the Government and their
officers and for defraying the expenses incurred on account
of such services, every religious institution shall, from
the income derived by it, pay to the Commissioner annually
such contribution not exceeding 5% of its income as may be
prescribed. Consequent upon the reorganisation of States in
1956 the District of South Kanara was transferred to the
State of Mysore. By reason of the provisions of the States
Reorganisation Act the Madras Act of 1951 continued to apply
to the Mutts in the district even after their transfer to
the State of Mysore. The Government of Mysore issued a
notification authorising the Commissioner for Settlement and
Charitable Endowments for Mysore to exercise the functions
of the Commissioner under the Madras Act.
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In April, 1964 when the Commissioner of Hindu Religious
and Charitable Endowments, Mysore issued a notice to the
appellants demanding payment of certain contributions for
the years 1957 to 1960 the appellants denied their liability
to pay the amounts on the ground that (1) the Commissioner
had no power to demand payment of contributions for the
period subsequent to November, 1956 (when the District was
transferred from the former State of Madras to the State of
Mysore); (2) that the demands were excessive and bore no
relationship with the services rendered by the department
and (3) that the expenditure incurred on the maintenance of
staff and officers of the Commissioner’s office could not
wholly or in part be recovered from the appellants by way of
contributions under s.76(1) of the Madras Act of 1951.
All the contentions were rejected by the Commissioner.
The appellants thereupon filed writ petitions in the High
Court impugning the Commissioner’s orders. The High Court
dismissed the writ petitions.
369
On appeal to this Court it was contended on behalf of
the appellants that (1) the notification issued by the
Mysore Government authorising the Commissioner to exercise
the functions of the Commissioner under the Madras Act was
invalid because the Commissioner being a Corporation Sole
the only authority competent to issue a notification in this
behalf under s. 109(1) of the States Reorganisation Act 1956
was the Central Government; (2) that the demands made by the
Commissioner for payment of fees were illegal because
considering the services rendered to them they were
excessive; (3) that the application of the Madras Act to one
district only offends against the guarantee of equality
contained in Art. 14 because the Mutts were required to pay
fees which similar institutions situated in other areas of
the State were not required to pay and (4) that though the
initial application of the Madras Act of 1951 to the
District was not violative, its continued application
offends against the guarantee of equality.
Dismissing the appeals,
^
HELD : 1. The provisions of s.109(1) of the States
Reorganisation Act do not support the argument that the
Commissioner being a Corporation Sole the only authority
competent to issue the notification under s. 122 was the
Central Government. Though the body corporate has to
function within the scope of and in accordance with the
directions issued by the Central Government from time to
time, its power to function under the parent Act is not
conditional on the issuance of directions by the Central
Government. If directions are issued by the Central
Government they have to be complied with by it. If on the
other hand no directions are issued the powers and functions
of the authority remain unimpaired and can nevertheless be
exercised as contemplated by the Act which creates the body
corporate. [375C-D]
2.(a) Information on matters like the date of
constitution of the Religious Endowment Fund, annual salary
budget of the Commissioner’s establishment at different
places and the total number of institutions to which
services were rendered sought by the appellants would be
within the knowledge of the respondents and could have been
supplied. For the purposes of finding whether there was a
correlationship between the services rendered to the fee
payers and the fees charged it is necessary to know the cost
incurred for organising and rendering the services. But
matters involving consideration of such correlationship are
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not required to be proved by mathematical formula. What has
to be seen is whether there is a fair correspondence between
the fee charged and the cost of services rendered to the fee
payers as a class. A vivisection of the amounts spent by the
Commissioner’s establishment would have been speculative. It
cannot be said that substantial prejudice had been caused to
the appellants by reason of the non-supply of the
information sought by them. [376 F-H]
(b) It is well-established that a tax is levied as a
part of a common burden while a fee is for a special benefit
or privilege. Public interest is at the basis of all
impositions; but in a fee it is some special benefit which
the individual receives which is the basis of imposition. A
fee being a levy in consideration of rendering service to a
particular type, correlation between the expenditure and the
levy must exist but a levy will not be regarded as a tax
merely because of the absence of uniformity in its incidence
or because of compulsion
370
in the collection thereof or because some of the
contributories did not obtain the same degree of service as
others may. [377F-H]
In the instant case there were some institutions whose
annual income was over Rs. 200 and a large number whose
annual income was less than Rs. 200. The smaller
institutions require and receive services from the
department as much as the bigger class and the amounts
collected by way of fees were just enough to balance the
bulk of the expenditure incurred for financing the conduct
of affairs of the department which is charged with the duty
and obligation of rendering services to the institutions
directly and to the public which patronises or visits them
indirectly. [378G-H]
The Commissioner, Hindu Religious Endowment, Madras v.
Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt. [1954]
SCR, 1005, H. H. Sudhundra Thirtha Swamiar v. Commissioner
for Hindu Religious & Charitable Endowments, Mysore. [1963]
Suppl. 2 SCR. 302, Kewal Krishan Puri and Anr. etc. v. State
of Punjab and ors. etc. [1979] 3 SCR 1217, Hingir Rampur
Coal Co. Ltd. & Ors. v. State of Orissa and Ors. [1961] 2
SCR 537, Indian Mica and Micanite Industries Ltd. v. State
of Bihar & ors. [1971] Suppl. SCR. 319, Secretary,
Government of Madras, Home Department and Anr. v. Zenith
Lamp & Electrical Ltd. [1973] 2 SCR 973 referred to.
(c) In the absence of any acceptable evidence showing
that the department had built up large accumulations or
reserves out of the fees collected from the various
institutions and considering that services were required to
be rendered to a large class of institutions consisting of
major and minor institutions it cannot be said that there
was no approximation or correspondence between the fees
levied on the appellants and the services rendered to the
class to which they belonged. [379C-D]
3. The Madras Act of 1951 in its application to the
district of South Kanara (now in the State of Karnataka)
does not infringe Art. 14 of the Constitution. By a long
line of decisions this Court has laid down that dissimilar
treatment does not necessarily offend against the guarantee
of equality contained in Art. 14 so long as there is a valid
basis for classification and the classification bears a
nexus with the object of the impugned provisions. In matters
arising out of reorganisation of States, continued
application of laws of a State to territories which were
within that State but which became a part of another State,
is not discriminatory since classification rests on
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geographical considerations founded on historical reasons.
Bhaiyalal Shukla v. State of Madhya Pradesh [1962]
Supp. 2 SCR 257, Pandit Banarsi Das Bhanot v. State of M.P.
[1959] SCR 427, Anant Prasad Lakshminivas Ganeriwal v. State
of Andhra Pradesh and other [1963] Suppl. 1 SCR 844, The
State of Madhya Pradesh v. Bhopal Sugar Industries Ltd.
[1964] 6 SCR 846, Vishwesha Thirtha Swamiar & Ors. v. State
of Mysore & Anr. [1972] 1 SCR 137 referred to.
State of Rajasthan v. Rao Manohar Singhji [1954] SCR
996 and Jia Lal v. The Delhi Administration [1963] 2 SCR 364
distinguished.
4. Section 119 of the States Reorganisation Act, 1956
was intended to serve a temporary purpose. But Acts, Rules
and Regulations whose constitutional validity is upheld and
can be upheld only on the ground that no violation per se of
Art. 14 is involved in the application of different laws
371
to different components of a State, if the area to which
unequal laws are applied has become a part of the State as a
result of the States Reorganisation, cannot continue to
apply to such area indefinitely. An indefinite extension and
application of unequal laws for all time to come would
militate against their true character as temporary measures
taken in order to serve a temporary purpose. The decision to
withdraw application of unequal laws to equals cannot be
delayed unreasonably because the relevance of historical
reasons which justify the application of unequal laws is
bound to wear out with the passage of time. But it cannot,
however, be said that the continued application of the Act
to the District became violative of Art. 14 as immediately
as during the period under consideration, which was just
five or six years after the passing of the States
Reorganisation Act. Nor has the continued application of
that Act until now is shown to be violative of Art. 14.
[387E-G]
Narottam Kishore Dev Varma and Ors. v. Union of India
and Anr. [1964] 7 SCR 55 referred to.
Shinghal J. (concurring in the final decision).
1. In the absence of necessary pleadings by the
appellants it was not necessary to consider whether the
continued application of the Madras Act to the district was
violative of Art. 14 of the Constitution. It cannot also be
said that inequality is writ large on the face of the
impugned statute in its application to the district and that
it is perilously near the periphery of unconstitutionality
merely because of the lapse of 23 years. [395A]
2. Pleadings or a statement of material facts are of
vital importance because absence of all the necessary facts
in a petition for the redress of a grievance denies an
opportunity for the opposite party to formulate its case.
The parties would not know the points at issue and therefore
the controversy would be confined to any point or points. If
a petition filed under Art. 226 or Art. 32 alleging
infringement of Art. 14 is singularly deficient in
furnishing particulars justifying the allegation, but makes
out only a mere plea of differential treatment, that, by
itself, would not be sufficient to enable the Court to
examine the validity of the petitioner’s claim. [389G-H;
392H]
In the instant case the sole ground on which the
appellants rested their plea of discrimination was the
continued application of the provisions of the Act to the
district eight or nine years after the reorganisation of
States and that failure to "unify" the legislation on the
subject of Hindu Religious and Charitable Endowments was
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wholly discriminatory. That is quite untenable in view of
the decision in Bhopal Sugar Industries case. The other plea
of mixing of Mutts with temples is not quite intelligible.
It had not even been referred by the counsel during the
arguments. The grounds which had been taken were, therefore,
untenable. [394A-C]
3. It is impossible to lay down any definite time limit
within which the State has to make the necessary adjustment
for the purpose of effectuating the equality clause of the
Constitution. While differential treatment could not be
permitted to assume permanency without a rational basis to
support it as years go by a mere plea of differential
treatment is by itself not sufficient to attract the
application of Art. 14.
State of Madhya Pradesh v. Bhopal Sugar Industries Ltd.
[1964] 6 SCR 846 followed.
372
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1445-
1448 of 1968.
From the Judgment and Order dated 25-8-1967 of the
Mysore High Court in Writ Petition Nos. 1575, 1576, 1579/65
and 1439/66.
AND
Civil Appeal Nos. 1720-1722 of 1968
From the Judgment and Order dated 25-8-1967 of the
Mysore High Court in Writ Petition Nos. 1649/64, 1650/64 and
1651/64.
H. B. Datar, R. B. Datar and A. K. Srivastava for the
Appellants in C.A. Nos. 1445-48/68.
A. K. Srivastava and Vineet Kumar for the Appellants in
C.A. Nos. 1720A-1722/68.
V.A. (Dr.) Sayed Mohamad and N. Nettar for RR 1-3 in
C.A. Nos. 1445-1448/68 and RR in C.A. Nos. 1720A-1722/68.
R. P. Bhat and Girish Chandra for RR 4 in C.A. 1445-
1448/68.
The Judgment of Y. V. Chandrachud, C.J., V. R. Krishna
Iyer, N. L. Untwalia and A. D. Koshal, JJ. was delivered by
Chandrachud, C.J. P. N. Shinghal, J. gave a separate
Opinion.
CHANDRACHUD, C.J. These seven appeals by certificate
are directed against the judgment dated August 25, 1967
given by the High Court of Mysore in Writ Petitions Nos.
1649, 1650 and 1651 of 1964, Writ Petitions Nos. 1575, 1576
and 1579 of 1965 and Writ Petitions No. 1439 of 1966. These
Writ Petitions were filed by the appellants under article
226 of the Constitution praying that the demand notices
issued by the Commissioner for Hindu Religious and
Charitable Endowments of Mysore be quashed and for a writ of
mandamus restraining the respondents from taking any action
in pursuance thereof.
Until November 1, 1956, when the States Reorganisation
Act, 37 of 1956, came into force the District of South
Kanara was a part of the former State of Madras. As a result
of the States Reorganisation Act that District became a part
of the State of Mysore, now the State of Karnataka.
The Madras Legislature passed an Act called the Madras
Hindu Religious and Charitable Endowments Act, 19 of 1951
("the Madras Act of 1951"), to provide for the better
administration and governance of Hindu Religious and
Charitable Institutions and Endowments
373
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in the State of Madras Section 76(1) of the Act, as it stood
originally, provided that 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 5 per centum of its income as may be prescribed.
This provision and some other provisions of the Act were
challenged in the Madras High Court on behalf of the Shirur
Mutt and others. The challenge was upheld by the High Court
and the appeal filed therefrom by the Commissioner, Hindu
Religious Endowments, Madras, was dismissed by this Court in
The Commissioner, Hindu Religious Endowments, Madras, v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt. Section
76(1) was held void by this Court on the ground that the
provision relating to the payment of annual contribution
contained in it was in the nature of tax and not fee and
therefore it was beyond the legislative competence of the
Madras State Legislature to enact the provision. The Madras
Legislature amended section 76(1) of the Act so as to
provide that in respect of the services rendered by the
Government and their officers, "and for defraying the
expenses incurred on account of such services", every
religious institution shall, from the income derived by it,
pay to the Commissioner annually such contribution not
exceeding five per centum of its income as may be
prescribed. The validity of the amended section, was upheld
by this Court in H. H. Sudhundra Thirtha Swamiar v.
Commissioner for Hindu Religious & Charitable Endowments,
Mysore.
After the formation of the new State of Mysore under
the States Reorganisation Act, 1956, laws which were in
force in the areas which were formerly comprised within the
Madras State, continued to apply to those areas
notwithstanding the fact that they became part of the new
State of Mysore. Section 199 of the Act of 1956 provides
that the provisions of Part II (’Territorial Changes and
Formation of new States’) shall not be deemed to have
effected any change in the territories to which any law in
force immediately before the appointed day extends or
applies, and territorial references in any such law to an
existing State shall, until otherwise provided by a
competent Legislature or other competent authority, be
construed as meaning the territories within that State
immediately before the appointed day. It is by reason of
this section that the Madras Act of 1951 continued to apply
to the South Kanara District which prior to November 1,
1956, was a part of
374
the Madras State but which became after that date a part of
the Mysore State.
We will refer to the facts of Civil Appeal 1445 of 1968
which arises out of Writ Petition 1575 of 1965. The facts of
the other appeals are in material respect similar. The
appellant who is the Mathadhipati of Shri Admar Mutt in the
South Kanara District received a notice dated April 24, 1964
from the Commissioner, Hindu Religious and Charitable
Endowments, Mysore demanding payment of contribution for
Fasli years 1367 to 1370 which correspond to calendar years
1957 to 1960. By the notice, the Commissioner demanded a sum
of Rs. 12,724.60 for the Fasli year 1367, Rs. 12,274.60 for
the Fasli year 1368, Rs. 11,270.70 for the Fasli year 1369
and Rs. 12,169.20 for the Fasli year 1370. The appellant
disputed his liability to pay the contribution on the ground
that the Commissioner was not entitled to make any demand
for the period subsequent to November 1956, that even
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assuming that he had the lawful authority to make the
demands, the amount demanded was excessive bearing no
relationship with the services rendered by the Department
and that the expenditure which was incurred on the
maintenance of the office and staff of the Commissioner and
the Deputy Commissioner could not wholly or in part be
recovered from the appellant by way of contribution under
section 76(1) of the Madras Act of 1951.
Since the Commissioner did not accept the appellants’
contention, the appellants filed the Writ Petitions in the
Mysore High Court asking that the demand notices be quashed
as illegal. Those Writ Petitions were dismissed by the High
Court but it has given to the appellants certificates to
appeal to this Court under articles 133(1)(a) and (c) of the
Constitution.
Simultaneously with the States Reorganisation Act
coming into force, the Government of Mysore issued a
notification under section 122 of that Act authorising the
Commissioner for Settlements and Charitable Endowments for
Mysore to exercise the functions of the Commissioner under
the Madras Act of 1951. It is contended on behalf of the
appellants that the aforesaid notification lacks law’s
authority because, the Commissioner being a Corporation
Sole, the only authority which is competent to issue the
notification under section 122 is the Central Government, by
reason of the provisions contained in section 109(i) of the
S.R. Act. It is true that by section 80 of the Madras Act of
1951, the Commissioner is constituted a Corporation Sole
with a perpetual succession. But the provisions of section
109(1) of the S. R. Act on which the argument rests do not
support the argument. The relevant part of section 109 (1)
provides that where any body corporate has been
375
constituted under a State Act for an existing State, any
part of which is by virtue of the provisions of Part II of
the S.R. Act transferred to any other State, then
notwithstanding such transfer, the body corporate shall, as
from the appointed day continue to function and operate in
those areas in respect of which it was functioning and
operating immediately before that day, "subject to such
directions as may from time to time be issued by the Central
Government". Under this provision, it is competent to the
Central Government to issue directions to a body corporate
and by reason of sub-section 2 of section 109, any direction
issued by the Central Government under sub-section (1) shall
include a direction that any law by which the said body
corporate is governed shall have effect subject to such
exceptions and modifications as may be specified in the
directions. In other words, the body corporate has to
function within the scope of and in accordance with the
directions issued by the Central Government from time to
time. But the power of the body corporate to function under
the parent Act is not conditional on the issuance of
directions by the Central Government. If directions are
issued by the Central Government, they have to be complied
with by the body corporate. If no directions are issued, the
powers and functions of the authority remain unimpaired and
can nevertheless be exercised as contemplated by the Act
which creates the body corporate.
The second contention made on behalf of the appellants
is that the demands made by the Commissioner for the payment
of fees is illegal because, considering the services
rendered to them, the demands are clearly excessive. In
other words the argument is that there is no quid pro quo
between the services rendered by the State to the appellants
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and the fees which the Commissioner has called upon them to
pay.
The affidavit of Shri Annaji Rao in support of Writ
Petition 1575 of 1965 filed by the Admar Mutt contains the
following averments directed to establishing the absence of
quid pro quo. It is stated in paragraphs 14 to 18 of the
said affidavit that,
(1) in the district of South Kanara, there are
about 310 major religious institutions which
are dealt with by the establishment of the
Commissioner. Out of these, only 30 have an
annual income exceeding Rs. 20,000/-. Out of
these 30, 17 are Mutts and out of these 17, 9
are situated in Udipi, South Kanara.
(2) the 30 major institutions are dealt with by
the Deputy Commissioner, South Kanara,
Mangalore, under the powers delegated to him
by the Commissioner. The remaining 280
Institutions are dealt with by the
376
Assistant Commissioner who has a separate
establishment of his own;
(3) the Deputy Commissioner, who deals with the
30 major institutions, utilises the services
of two Clerks and one Stenographer in his
office at Mangalore, the expenditure on whose
salary cannot exceed Rs. 6,000/- per annum
approximately. The only work that is being
done by the Deputy Commissioner in respect of
the Mutts is to receive the draft Annual
Budgets submitted by them and to make his
remarks thereon. A service of this nature
cannot cost more than Rs.200/- per annum;
(4) for the petty services which are being
rendered to the appellants, the five Udipi
Mutts have been called up on to pay a sum of
Rs. 30,000/- for the four years in question.
A sum of Rs. 25,000/- is demanded from the
other four Mutts for the same period. Apart
from these 9 Mutts, there are 8 other Mutts
and 13 other major institutions from whom a
sum of Rs. 50,000/- has been demanded. These
demands are grossly uncorrelated to the cost
of services rendered to the appellants.
On December 20, 1966 an application was filed in the
High Court on behalf of the appellants asking that the
respondents be directed to furnish the necessary particulars
regarding, inter alia, (i) the date when the Religious
Endowments Fund was constituted; (ii) the demands made in
respect of the major institutions in South Kanara; (iii) the
salaries payable to the establishments of the Commissioner
and the Deputy Commissioner; (iv) the functions discharged
by the Deputy Commissioner in respect of Mutts; (v) the
expenditure incurred by the Commissioner’s office in
Mangalore and in Bangalore and (vi) the total number of
institutions controlled by the Department in the four areas
which were formerly parts of other States but which had
become a part of the State of Mysore under the States
Reorganisation Act.
The information sought by the appellants could have
been supplied by the respondents because matters like the
date of constitution of the Fund, the annual salary budget
of the Commissioner’s establishment at different places and
the total number of institutions to which services were
rendered would be within their special knowledge. For the
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purpose of finding whether there is a correlationship
between the services rendered to the fee payers and the fees
charged to them, it
377
is necessary to know the cost incurred for organising and
rendering the services. But matters involving consideration
of such a correlationship are not required to be proved by a
mathematical formula. What has to be seen is whether there
is a fair correspondence between the fee charged and the
cost of services rendered to the fee payers as a class. The
further and better particulars asked for by the appellants
under Order VI, rule 5 of the Civil Procedure Code, would
have driven the court, had the particulars been supplied, to
a laborious and fruitless inquiry into minute details of the
Commissioner’s departmental budget. A vivisection of the
amounts spent by the Commissioner’s establishment at
different places for various purposes and the ad-hoc
allocation by the court of different amounts to different
heads would at best have been speculative. It would have
been no more possible for the High Court if the information
were before it, than it would be possible for us if the
information were before us, to find out what part of the
expenses incurred by the Commissioner’s establishment at
various places and what part of the salary of his staff at
those places should be allocated to the functions discharged
by the establishment in connection with the services
rendered to the appellants. We do not therefore think that
any substantial prejudice has been caused to the appellants
by reason of the non-supply of the information sought by
them.
The necessity for establishing quid pro quo between the
fee and the cost of services rendered is a matter which is
no longer open to doubt or debate. Several decisions of this
Court have considered that question, beginning perhaps with
the decision in the Shirur Mutt case (supra) and ending
(hopefully) with the recent judgment delivered by a
Constitution Bench of this Court in a large group of Market
Fee cases from Punjab and Haryana in Kewal Krishan Puri and
Anr. etc. v. State of Punjab and Ors. etc.
In the Shirur Mutt case (supra) in which the levy under
the unamended section 76(1) of the Madras Act of 1951 was
held to be a tax Mukherjea, J., who delivered the judgment
of the Court, said that the distinction between a tax and a
fee lies primarily in the fact that a tax is levied as a
part of a common burden while a fee is for a special benefit
or privilege. Public interest, according to the Court, is at
the basis of all impositions but in a fee it is some special
benefit which the individual receives. After this decision,
section 76 was amended by the Madras Legislature and the
amended section was upheld by this Court in Sudhundra
Thirtha Swamiar case (supra). It was held in that case that
a fee does not cease to be of that character merely because
there is an element of compulsion or coerciveness
378
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 the individual who obtains the benefit of the
service. Shah, J., who spoke for the Court, emphasised that
"if with a view to providing 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". In other words, "a fee
being a levy in consideration of rendering service of a
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particular type, correlation between the expenditure by the
Government and the levy must undoubtedly exist, but 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". In Hingir Rampur Coal Co. Ltd. & Ors. v. State
of Orissa and Ors., the Court while upholding the levy of
fee said through Gajendragadkar, J. that the scheme of the
Act showed that the cess was levied against the class of
persons owning mines in the notified area and it was levied
to enable the State Government to render specific services
to that class by developing the notified mineral area. In
Indian Mica & Micanite Industries Ltd. v. State of Bihar &
Ors., Hedge, J. who spoke for the Court said that before any
levy can be upheld as a fee, it must be shown that the levy
has "reasonable correlationship" with the services rendered
by the Government to the fee payer but that it will be
impossible to expect an exact correlationship. According to
the learned Judge, the correlationship expected is one of a
general character and not as of arithmetical exactitude. In
Secretary, Government of Madras, Home Department and Anr. v.
Zenith Lamp & Electrical Ltd. where the question was as
regards the validity of court fees, Sikri, C.J. speaking for
the Court, pointed out that there must be a "broad
correlationship" between the fees collected and the cost of
administration of civil justice and that each case has to be
judged from a reasonable and practical point of view for
finding out the element of quid pro quo. All of these
decisions have been discussed and the principles laid down
therein reaffirmed by this Court in the Punjab and Haryana
Market Fee cases (supra) in which the judgment was delivered
by one of us, namely, Untwalia, J.
It is clear from the various facts mentioned by the
respondents in their affidavit in the High Court that under
the supervision and control of the Commissioner, there are
as many as 324 institutions
379
with an income of over Rs. 200/- per annum and 1796
institutions with an income of less than Rs. 200/- per
annum. The latter class of smaller institutions requires and
receives services from the Department as much as the former
class of bigger institutions does. The amounts collected by
the levy of fees on these institutions was just enough to
balance the bulk of the expenditure incurred, at least
during the period under review, for financing the conduct of
affairs of a Department which is charged with the duty and
obligation of rendering services to the institutions
directly and to the public which patronises or visits them
indirectly.
The rules framed under the Madras Act of 1951
prescribed a fee varying from 3 to 5 per cent of the annual
income of the institutions. The figures furnished by the
Commissioner in the third statement dated August 10, 1967
which was filed in pursuance of the directive issued by the
High Court show that the total demand made on all the
religious institutions for fees during the years 1957 to
1964 amounted to Rs. 8,80,389/- while the allocable expense
for the services was Rs. 7,54,160/-. It is not without
significance that though the total demand made on the Mutts
during the said period was in the sum of Rs. 3,64,591/-, the
contribution received from the Mutts was Rs. 24,526/- only.
In the absence of any acceptable evidence showing that the
Department had built up large accumulations or reserves out
of the fees collected from the various institutions and
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considering that services are required to be rendered to a
large class of institutions consisting of major and minor
institutions, we do not think that we can positively come to
the conclusion that there is no approximation or
correspondence between the fees levied on the appellants and
the services rendered to the class to which they belong. The
second contention therefore fails.
The third and last contention made by the learned
counsel for the appellants is that the application of the
Madras Act of 1951 to one district only of the State of
Karnataka offends against the guarantee of equality
contained in article 14 of the Constitution which provides
that the State shall not deny to any person equality before
the law or the equal protection of the laws within the
territory of India. It is urged that as a result of the
application of the Madras Act of 1951 to the Mutts and
temples in the South Kanara District, they are required to
pay fees under the Act which similar institutions situated
in other areas of Karnataka do not have to pay. The burden
thus imposed on the appellants is said to be an act of
hostile discrimination and therefore unconstitutional.
In support of this argument counsel has drawn our
attention to certain decisions of this Court which we will
presently examine but
380
before doing so, we must recall the background in which the
Madras Act of 1951 became applicable to the South Kanara
District of the State of Mysore, now the State of Karnataka.
To recapitulate briefly, the South Kanara District which was
formerly a part of the State of Madras, became a part of the
State of Mysore as a result of the Reorganisation of States
on November 1, 1956. It is by reason of the provisions of
the States Reorganisation Act, 1956 that the Madras Act of
1951 continues to apply to the South Kanara District
notwithstanding the fact that it is no longer a part of the
State of Madras. Section 119 of the S.R. Act provides to
that effect.
In State of Rajasthan v. Rao Manohar Singhji three
Ordinances, No. XXVII of 1948 and Nos. X and XV of 1949 were
challenged on the ground, inter alia, that after final
formation of the State of Rajasthan in May, 1949 the
Ordinances remained in force in a part of the State with the
result that while Jagirs in a part of the State were managed
by the State, the Jagirs in the rest of the State were left
untouched and remained with the Jagirdars. Section 8-A,
which was inserted in Ordinance XXVII of 1948 by section 4
of Ordinance X of 1949 and was amended by section 3 of
Ordinance XV of 1949, provided that the revenue including
taxes, cesses and other revenue from forests which was until
then collected by Jagirdars shall in future be collected by
and paid to the Government. After deducting the collection
charges and other expenses, the Government was to pay back
the revenue to the Jagirdars concerned.
This case is distinguishable for the simple reason that
the decision turned on the application of article 13 of the
Constitution and the case did not involve considerations
arising out of the provisions of the States Reorganisation
Act. The respondent therein was a Jagirdar in the former
State of Mewar which was integrated in April 1948 to form
what was known as the former United State of Rajasthan. In
April and May 1949 that State was amalgamated with the
former States of Bikaner, Jaipur, Jaisalmer and Jodhpur and
the former Union of Matsya to form the State of Rajasthan.
The three Ordinances in question were issued by the former
United State of Rajasthan, as a result of which the
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management of the Jagirs in the State, including those in
Mewar, was assumed by the State. After the final formation
of the State of Rajasthan in May 1949, the Ordinances
remained in force in a part of the State only with the
result that the Jagirdars of only a part of the State could
not collect their rents while Jagirdars in other areas like
Bikaner, Jaipur, Jaisalmer, Jodhpur, and the Matsya Union
were under no such disability, since there was
381
no such law in those areas. But when the integration of
April and May, 1949 took place, the discrimination exhibited
itself not by virtue of anything inherent in the impugned
Ordinances but by reason of the fact that Jagirdars of one
part of the State were subjected to a disability while those
in the other parts remained wholly unaffected. As observed
by this Court in its judgment, this was an obvious case of
discrimination not supported on the ground that it was based
upon a reasonable classification. The discrimination was not
open to any exception until the Constitution came into force
on January 26, 1950 when by reason of Article 13, all laws
in force in the territory of India immediately before the
commencement of the Constitution in so far as they were
inconsistent with the provisions of Part III became void to
the extent of the inconsistency. The High Court as well as
this Court found that Section 8-A was unconstitutional
because there was no real and substantial distinction why
the Jagirdars of a particular area should continue to be
treated with inequality as compared with the Jagirdars in
another area of the State. There was nothing to show that
there was any peculiarity or any special feature in the
Jagirs of the former United State of Rajasthan, like Mewar,
to justify differentiation from the Jagirs comprised in the
States which were subsequently integrated into the State of
Rajasthan in 1949. In other words, after the formation of
the new State there was no justification for taking away the
powers of the Jagirdars of a disfavoured area like Mewar and
to leave them intact in the rest of the areas like Bikaner,
Jaipur and Jodhpur.
In Jai Lal v. The Delhi Administration, on which also
the appellants rely, there were two appeals before this
Court arising out of convictions under section 19(f) of the
Indian Arms Act, 1878. Section 29 of that Act provided that
for prosecution for an offence under section 19(f) of the
Act committed in the territories north of the Jumna and
Ganga, no sanction was required but sanction was required
for the prosecution if the offence was committed in other
areas. The court examined the legislative history of section
29 and noticed that the section made a distinction between
the areas to which the Arms and Ammunition Act of 1960
applied and the other areas. The former included territories
which had been disarmed under orders of the Governor-General
and those in which a general search had been ordered, which
comprised the territories north of the Jumna and Ganga. This
differentiation came to be made as a result of the political
situation which obtained in India following the "rebellion"
of 1857, its genesis being that the largest opposition to
the British Government came from Taluqdars to the north of
the Jumna
382
and Ganga. Bearing in mind these historical reasons,
Venkatarama Aiyar, J., speaking for the Court, observed that
more than a century had elapsed since 1857 and the
conditions had so radically changed that it was impossible
any longer to sustain any distinction between the
territories north of the Jumna and Ganga and the other
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territories on any ground pertinent to the object of the law
in question. Section 29 was accordingly held to be repugnant
to article 14. This decision too is distinguishable for two
reasons. Firstly, more than a century had elapsed since the
occurrence of events which led to differential treatment
being accorded to the area north of Jumna and Ganga; and it
is a well-known fact of history that political conditions
had changed vastly in India during that period. Secondly, as
in Rao Manohar Singhji, (supra) the discrimination was
violative of article 14 of the Constitution because there
was no longer any nexus between the geographical
classification made by section 29 of the Indian Arms Act,
1878 and the object of that provision. After the enactment
of the Constitution, article 13 rendered section 29
unconstitutional.
There are certain other decisions to which the
appellants’ counsel himself drew our attention fairly and
they clinch the issue. We will now refer to them. In
Bhaiyalal Shukla v. State of Madhya Pradesh, the appellant
was engaged in the business of construction as a contractor
under the P.W.D. in the Rewa Circle of the former State of
Vindhya Pradesh which had become a part of the State of
Madhya Pradesh. He challenged the levy of Sales Tax on
building materials supplied by him during the years 1953-59.
After the re-organisation of States, Madhya Pradesh had as
many as four Sales Tax Acts. One of the arguments advanced
on behalf of the appellant was that a person belonging to
the area of the former State of Madhya Pradesh was not
liable to sales tax on building materials in a works
contract, under the C.P. and Berar Sales Tax Act because of
the decision of this Court in Pandit Banarsi Das Bhanot v.
State of Madhya Pradesh, but another person living in an
area forming part of the former State of Vindhya Pradesh was
liable to sales tax under the same Act, as extended to
Vindhya Pradesh. While rejecting the argument that article
14 was thereby contravened, this Court held that the laws in
different portions of the new State of Madhya Pradesh were
enacted by different legislatures, and under section 119 of
the States Reorganisation Act, all laws in force were to
continue until re-pealed or altered by the appropriate
Legislature. The Sales Tax law in Vindhya Pradesh having
been validly enacted, it carried its
383
validity with it under section 119 of the States
Reorganisation Act, when it became a part of Madhya Pradesh.
Thereafter, observed Hidayatullah, J. on behalf of the
Court, the different laws which were in force in different
parts of Madhya Pradesh could be sustained on the ground
that the differentiation arose from historical reasons and a
"geographical classification based on historical reasons"
was valid. For the last proposition, reliance was placed on
two unreported decisions of the Court, dated November 2 and
November 30, 1960.
In Anant Prasad Lakshminivas Ganeriwal v. State of
Andhra Pradesh and Others, the appellant who claimed to be
the sole hereditary trustee and mutawalli of a temple in
Hyderabad was served with a notice by the Director of
Endowments, Hyderabad, to have the temple registered under
the Hyderabad Endowments Regulations, 1940. The Director of
Endowments of Hyderabad also passed two orders directing
that the supervision of the temple be taken over under r.
179 of the Endowments Rules and that the management of the
temple do vest in the Director of Endowments, Hyderabad. The
appellant filed a Writ Petition in this Court challenging
the validity of the Regulations and the Rules framed
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thereunder as being repugnant to articles 14 and 19 of the
Constitution. His contention was that there were two laws in
force in two parts of the State of Andhra Pradesh with
respect to religious endowments and that these two laws were
different in many matters resulting in discrimination which
was hit by article 14. The State of Andhra Pradesh, as it
came into existence after the States Reorganisation Act,
1956, consists of two areas one of which came to that State
from the former Part A State of Madras in 1953 and the other
from the former Part B State of Hyderabad in 1956. This
Court observed, while repelling the challenge under article
14, that the two areas naturally had different laws and
that, assimilation of the laws which were in operation in
the two parts of the State and bringing them under one
common pattern was bound to take some time. It appears that
the Court was informed that the question of having one law
for public trusts of religious or charitable nature was
under the active consideration of the State Government, for
which reason, the Court thought that it was not right to
strike down all laws prevailing in the two parts of the
State because of certain differences in them arising out of
historical reasons. The Court applied to the facts before it
the ratio of Bhaiyalal Shukla (supra) and distinguished the
decision in Rao Manohar Singhji (supra).
In The State of Madhya Pradesh v. Bhopal Sugar
Industries Ltd., the respondent company filed a Writ
Petition in August 1960
384
in the M.P. High Court praying that the State of Madhya
Pradesh be restrained from enforcing the Bhopal State
Agricultural Income-tax Act, 1953 on the ground that it
contravened the company’s right under article 14 of the
Constitution. By the States Reorganisation Act, 1956, the
territory of the State of Bhopal became from November 1,
1956 a part of the State of Madhya Pradesh. Though shortly
thereafter, the Adaptation of Laws Order was issued to apply
certain laws uniformly to the entire State and though the
Legislature, under the Madhya Pradesh Extension of Laws Act,
1953 had made certain other alterations in the laws
applicable to the State, the Bhopal State Agricultural
Income-tax Act remained unamended. Nor was its operation
extended to the other regions of the State. The result was
that Agricultural Income-tax was levied within a part of the
State of Madhya Pradesh, namely, in the territory of the
former State of Bhopal but not in the rest of the territory
of the State of Madhya Pradesh. Reversing the judgment of
the High Court, this Court held, relying upon Bhaiyalal
Shukla (supra) and other cases that where application of
unequal laws is reasonably justified for historical reasons,
a geographical classification founded on such historical
reasons is valid. While upholding the impugned statute in
its application to a part of the State, the Court observed
that section 119 of the States Reorganisation Act was
intended to serve a temporary purpose, viz., to enable the
new units to consider the special circumstances of the
diverse units, before launching upon a process of adaptation
of laws so as to make them reasonably uniform, keeping in
view the special needs of the component regions and
administrative efficiency. Therefore, differential treatment
arising out of the application of the laws so continued in
different regions of the same reorganised State, did not
immediately attract the clause of the Constitution
prohibiting discrimination.
In Vishwesha Thirtha Swamiar & Ors. v. State of Mysore
and Anr., the new State of Mysore enacted the Mysore Land
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Revenue (Surcharge) Act, 1961 and the Mysore Land Revenue
(Surcharge) Amendment Act, 1962. These Acts were challenged
on the ground, inter alia, that they were violative of
article 14 since there was inequality in taxation between
lands situated in South Kanara District and the lands
comprised in areas situated in the erstwhile State of
Mysore. This challenge was repelled by this Court on the
ground that the impugned Acts were in the nature of
temporary measures, passed while resettlement and survey was
being done in the entire State. This process necessarily
took a long time and therefore it could not be said that the
State had acted arbitrarily in imposing surcharge on land
revenue which was being levied under the existing
settlements and Acts.
385
These decisions are authority for the validity of
section 76(1) of the Madras Act of 1951 in its application
to the South Kanara District of the State of Mysore, now the
State of Karnataka. This Court has said time and again that
dissimilar treatment does not necessarily offend against the
guarantee of equality contained in article 14 of the
Constitution. The rider is that there has to be a valid
basis for classification and the classification must bear
nexus with the object of the impugned provision. In matters
arising out of reorganisation of States, continued
application of laws of a State to territories, which were
within that State but which have become a part of another
State is not discriminatory since the classification rests
on geographical considerations founded on historical
reasons.
In Bhopal Sugar Industries Ltd., (supra) Shah J., who
spoke for the court, has traced the genesis of section 119
of the States Reorganisation Act to which attention may
usefully be called:
"It is necessary to bear in mind that the various
administrative units which existed in British India
were the result of acquisition of territory by the East
India Company from time to time. The merger of Indian
States since 1947 brought into the Dominion of India
numerous Unions or States, based upon arrangements ad
hoc, and the constitutional set up in 1950 did not
attempt, on account of diverse reasons mainly
political, to make any rational rearrangement of
administrative units. Under the Constitution as
originally promulgated there existed three categories
of States, besides the centrally administered units of
the Andaman and Nicobar island. Part ’A’ States were
the former Governors’ Provinces, with which were merged
certain territories of the former Indian States to make
geographically homogeneous units: Part ’B’ States
represented groups formed out of 275 bigger Indian
States by mutual arrangement into Unions: Part ’C’
States were the former Chief Commissioners’ Provinces.
These units were continued under the Constitution
merely because they formerly existed. Later an attempt
was made under the States Reorganisation Act to
rationalize the pattern of administration by reducing
the four classes of units into two-States, and Union
territories-and by making a majority of the States
homogeneous linguistic units. But in the States so
reorganised were incorporated regions governed by
distinct laws, and by the mere process of bringing into
existence reorganised administrative units, uniformity
of laws could
386
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not immediately be secured. Administrative
reorganisation evidently could not await adaptation of
laws, so as to make them uniform, and immediate
abolition of laws which gave distinctive character to
the regions brought into the new units was politically
inexpedient even if theoretically possible. An attempt
to secure uniformity of laws before reorganisation of
the units would also have considerably retarded the
process of reorganisation. With the object of
effectuating a swift transition, the States
Reorganisation Act made a blanket provision in section
119 continuing the operation of the laws in force in
the territories in which they were previously in force
notwithstanding the territorial reorganisation into
different administrative units until the competent
Legislature or authority amended, altered or modified
those laws.......... Continuance of the laws of the old
region after the reorganisation by section 119 of the
States Reorganisation Act was by itself not
discriminatory even though it resulted in differential
treatment of persons, objects and transactions in the
new State, because it was intended to serve a dual
purpose-facilitating the early formation of homogeneous
units in the larger interest of the Union, and
maintaining even while merging its political identity
in the new unit, the distinctive character of each
region, till uniformity of laws was secured in those
branches in which it was expedient after full enquiry
to do so. The laws of the regions merged in the new
units had therefore to be continued on grounds of
necessity and expediency."
Bearing in mind these considerations, we are of the
view that the Madras Act of 1951, in its application to the
South Kanara District of Mysore, now Karnataka, does not
infringe article 14 of the Constitution.
But then, learned counsel for the appellants argues
that while following the judgments above referred to, we
must not overlook the caveat contained in those judgments
and the description therein of section 119 of the States
Reorganisation Act as a ’temporary measure’. In this behalf,
reliance is also placed by counsel on the decision in
Narottam Kishore Dev Varma and ors. vs. Union of India and
Anr. The petitioners therein applied for the consent of the
Central Government under section 87B of the Code of Civil
Procedure to sue the Maharaja of Tripura, Ruler of a former
Indian State which had merged with India. Consent having
been refused, they filed Writ Petition in this Court
challenging the validity of section 87B on
387
the ground that in granting exemption to Rulers of former
Indian States from being sued except with the consent of the
Central Government, the section contravened article 14 of
the Constitution. The Court followed an earlier judgment and
repelled the challenge but while doing so, Gajendragadkar,
C.J., speaking for the Court, made an important observation
inviting the Central Government to consider seriously
whether it was necessary to allow section 87B to operate
prospectively for all time and whether transactions
subsequent to January 26, 1950 should also receive the
protection of the section. The Court felt that, considered
broadly in the light of the basic principle of equality
before law, it was somewhat odd that section 87B should
continue to operate for all time. "With the passage of time"
observed the learned Chief Justice, "the validity of
historical considerations on which section 87B is founded
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will wear out and the continuance of the said section in the
Code of Civil Procedure may later be open to serious
challenge".
The narrow question that remains for consideration now
is whether, though the initial application of the Madras Act
of 1951 to the South Kanara District was not violative of
article 14, its continued application offends against the
guarantee of equality. In this connection, a matter of
primary importance to be borne in mind is that section 119
of the States Reorganisation Act, 1956, was intended, as
said in Bhaiyalal Shukla, (supra) to serve a "temporary
purpose", viz., to enable the new units to consider the
special circumstances of the diverse units, before launching
upon a process of adaptation of laws so as to make them
reasonably uniform, having regard to the special needs of
the various regions and the requirements of administrative
efficiency. Acts, Rules and Regulations whose constitutional
validity is upheld and can be upheld only on the ground that
no violation per so of article 14 is involved in the
application of different laws to different components of a
State, if the area to which unequal laws are applied has
become a part of the State as result of the States
"reorganization, cannot continue to apply to such area
indefinitely. An indefinite extension and application of
unequal laws for all time to come will militate against
their true character as temporary measures taken in order to
serve a temporary purpose. Thereby, the very foundation of
their constitutionality shall have been destroyed, the
foundation being that section 119 of the States
Reorganization Act serves the significant purpose of giving
reasonable time to the new units to consider the special
circumstances obtaining in respect of diverse units. The
decision to withdraw the application of unequal laws to
equals cannot be delayed unreasonably because the relevance
388
of historical reasons which justify the application of
unequal laws is bound to wear out with the passage of time.
In Broom’s Legal Maxims (1939 Edition, Page 97) can be found
a useful principle, "Cessante Ratione Legis Cessat Ipsa
Lex’, that is to say, "Reason is the soul of the law, and
when the reason of any particular law ceases, so does the
law itself".
We do not however see any justification for holding
that the continued application of the Madras Act of 1951 to
South Kanara District became violative of article 14 as
immediately as during the period under consideration, which
was just five or six years after the passing of the States
Reorganisation Act. Nor indeed are we disposed to hold that
the continued application of that Act until now is shown by
adequate data to be violative of article 14.
But that is how the matter stands to-day. Twenty three
years have gone by since the States Reorganisation Act was
passed but unhappily, no serious effort has been made by the
State Legislature to introduce any legislation-apart from
two abortive attempts in 1963 and 1977-to remove the
inequality between the temples and Mutts situated in the
South Kanara District and those situated in other areas of
Karnataka. Inequality is so clearly writ large on the face
of the impugned statute in its application to the District
of South Kanara only, that it is perilously near the
periphery of unconstitutionality. We have restrained
ourselves from declaring the law as inapplicable to the
District of South Kanara from to-day but we would like to
make it clear that if the Karnataka Legislature does not act
promptly and remove the inequality arising out of the
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application of the Madras Act of 1951 to the District of
South Kanara only, the Act will have to suffer a serious and
successful challenge in the not distant future. We do hope
that the Government of Karnataka will act promptly and move
an appropriate legislation, say, within a year or so. A
comprehensive legislation which will apply to all temples
and Mutts in Karnataka, which are equally situated in the
context of the levy of fee, may perhaps afford a
satisfactory solution to the problem. This, however, is a
tentative view-point because we have not investigated
whether the Madras Act of 1951, particularly section 76(1)
thereof, is a piece of hostile legislation of the kind that
would involve the violation of article 14. Facts in regard
thereto may have to be explored, if and when occasion
arises.
In the result the appeals fail and are dismissed but
there will be no order as to costs.
SHINGHAL J.-I have gone through the judgment of my Lord
the Chief Justice. While I concur with him that the appeals
fail and
389
should be dismissed, I think there is really no occasion to
consider the argument of Mr. Datar that the continued
application of the Madras Hindu Religious and Charitable
Endowments Act, 1951 (referred to as the Madras Act of 1951
by the Chief Justice) to the South Kanara district, is
violative of article 14 of the Constitution. So also, I am
unable to subscribe to the view that "inequality is so
clearly writ large on the face of the impugned statute in
its application to the district of South Kanara only that it
is perilously near the periphery of unconstitutionality,"
when the necessary data to justify that conclusion has not
been placed on the record and when it has been found that
there is no justification for holding that the continued
application of that Act to the South Kanara district has
become violative of article 14 "until now". If I may say so
with respect, that is my apology for expressing myself on
that short point, although I agree with my Lord on questions
relating to the competence of the Commissioner for
Settlements and Charitable Endowments to exercise the
functions of the Commissioner under the Madras Act of 1951,
and the existence of quid pro quo.
The right to equality enshrined in article 14 has been
shortly but grandly stated in the form of the directive that
the State shall not deny to any person equality before the
law or the equal protection of the laws within the territory
of the country. It is therefore a fundamental right which
every citizen possesses; and he has the further right, under
article 13(2), to ask that the law which takes away or
abridges any of the rights conferred by Part III shall, to
the extent it contravenes that right, be declared to be
void. That is why further provision has expressly been made
in article 32 guaranteeing the right to move this Court "by
appropriate proceedings" for the enforcement of the rights
conferred by Part III, and it has been provided in article
226, inter alia, that every High Court shall have the power
to issue the writs mentioned therein, for the enforcement of
any of those rights. It does not require much argument to
say further that, in either case, it is for the aggrieved
citizen to file the appropriate proceeding or petition for a
redress of his grievance, in order that the Court may hear
the other concerned party, examine the merits of the matter,
and arrive at a decision.
In other words, a pleading or a statement of the
material facts is necessary on the side of the petitioner
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and, if his claim is contested, on the side of the
respondent, for that enables them to formulate their case in
preparation of the hearing. Besides giving fair notice of
the case of either side, that defines the points at issue
and confines the controversy to them. It also enables the
parties to bring out their
390
evidence to best advantage, and eliminates prejudice or a
snap decision. Pleadings are thus of vital importance, for
if there is no pleading of the necessary facts in a petition
for the redress of a grievance, the petitioner has himself
to thank for his ultimate discomfiture on that account.
Before referring to the pleadings in these cases, it
may be mentioned that a point quite similar to the one
before us arose for consideration in State of Madhya Pradesh
v. Bhopal Sugar Industries Ltd. In that case, the former
Bhopal State enacted the Bhopal State Agricultural Income-
tax Act, 1953, which provided for the imposition and levy of
tax on agricultural income. The Act was brought into force
on July 15, 1953, and was applied to the territory of the
whole of the Bhopal State. That State was incorporated into
the new State of Madhya Pradesh with effect from November 1,
1956, and by virtue of section 119 of the States
Reorganisation Act, 1956, the Bhopal State Agricultural
Income-tax Act continued to remain in force in that
constituent region. Later, the Madhya Pradesh Extension of
Laws Act, 1958, extended several Central and State laws to
the entire State of Madhya Pradesh, but no change was made
in the territorial operation of the Bhopal State
Agricultural Income-tax Act in the area to which is
originally applied in 1953. There was, however, no law in
the rest of the Madhya Pradesh State providing for the levy
of tax on agricultural income.
The Bhopal Sugar Industries Ltd., which had been
incorporated under the Companies Act of the Bhopal State,
continued to pay the agricultural income-tax under the
Bhopal Act until 1960, when it challenged the levy as
violative of article 14 of the Constitution. It was held by
a Constitution Bench of this Court that while, prima facie,
a differential treatment was being accorded by the State of
Madhya Pradesh to persons carrying on agricultural
operations in the Bhopal region, because the State subjected
them to tax on agricultural income which was not imposed
upon agricultural income earned in the rest of the State,
"that by itself (could) not be a ground for declaring the
Act ultra vires." This Court took note of the mandate of
article 14, and referred to a number of its earlier
decisions in which it had been held that where application
of unequal laws was reasonably justified for historical
reasons, a geographical classification founded on those
historical reasons would be upheld. This Court expressed its
view as follows:-
"Continuance of the laws of the old region after
the reorganisation by s. 119 of the States
Reorganisation Act was by itself not discriminatory
even though it resulted in
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differential treatment of persons, objects and
transactions in the new State, because it was intended
to serve a dual purpose facilitating the early
formation of homogeneous units in the larger interest
of the Union, and maintaining even while merging its
political identity in the new unit, the distinctive
character of each region, till uniformity of laws was
secured in those branches in which it was expedient
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after full enquiry to do so. The laws of the regions
merged in the new units had therefore to be continued
on grounds of necessity and expediency. Section 119 of
the States Reorganisation Act was intended to serve
this temporary purpose, viz., to enable the new units
to consider the special circumstances of the diverse
units, before launching upon a process of adaptation of
laws so as to make them reasonably uniform, keeping in
view the special needs of the component regions and
administrative efficiency. Differential treatment
arising out of the application of the laws so continued
in different regions of the same reorganised State, did
not therefore immediately attract the clause of the
Constitution prohibiting discrimination."
It was at the same time appreciated that by passage of
time, considerations of necessity and expediency may be
obliterated, and the grounds which justified classification
of a geographical region for historical reasons may cease to
be valid, and it was observed that a purely temporary
provision could not be permitted to assume permanency so as
to perpetuate a discriminatory treatment without a rational
basis to support it after the initial expediency and
necessity had disappeared. But even while making this
observation on a point relating to the legal aspect of the
prayer for redress under article 14 of the Constitution,
this Court expressed disagreement with the view of the High
Court that as no attempt was made to remove the
discrimination in the matter of the levy of agricultural
income-tax, it was unlawful because the State had since the
enactment of the States Reorganisation Act sufficient time
and opportunity to decide whether the continuance of the
Bhopal State Agricultural Income-tax Act in the Bhopal
region would be consistent with article 14 of the
Constitution. In that connection, the Court went on to hold
as follows-
"It would be impossible to lay down any definite
time limit within which the State had to make necessary
adjustments so as to effectuate the equality clause of
the Constitution. That initially there was a valid
geographical classification of regions in the same
State justifying unequal laws when the State was formed
must be accepted. But whether
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the continuance of unequal laws by itself sustained the
plea of unlawful discrimination in view of changed
circumstances could only be ascertained after a full
and thorough enquiry into the continuance of the
grounds on which the inequality could rationally be
founded, and the change of circumstances, if any, which
obliterated the compulsion of expediency and necessity
existing at the time when the Reorganisation Act was
enacted."
Specific mention was made of the pleadings of the
parties and it was held that,-
"there was no clear perception by the parties of
what has to be pleaded and proved to establish a plea
of denial of equal protection of the laws. The Company
merely assumed that the existence of a law relating to
taxation which imposed agricultural income-tax in the
Bhopal region, there being no similar levy in the rest
of the State, was in law discriminatory. That is clear
from the petition of the Company which merely asserted
that the Act discriminated between the Company and
other owners of sugarcane farms in the State of Madhya
Pradesh, because it singled out the Company and other
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agriculturists in the Bhopal region from other
agriculturists and sugarcane farm owners in the State
of Madhya Pradesh and subjected them to liability
without any reasonable basis for classification."
This Court made a reference to the view of the High Court
that if after the expiry of a reasonable period during which
the State had the opportunity of making the necessary
adaptations so as to make the Act applicable to the entirety
of the new State, the State fails to adapt the law, the
historical considerations which initially justified the
classification must be deemed to have disappeared. It
clearly held that such an assumption, without further
enquiry, was not correct. It in fact went to the extent of
holding that "the mere existence of agricultural income
impost in one region, and absence of such impost in another
region may not necessarily justify an inference of unlawful
discrimination.
It was therefore, held in that case that as the
petition for the writ was "singularly deficient in
furnishing particulars which would justify the plea of
infringement of article of the Constitution", the mere plea
of differential treatment was by itself not sufficient. For
that reason it allowed the State’s appeal and remanded the
case for retrial after giving an opportunity to the parties
to amend the writ petition and the affidavit in reply.
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I have made a reference to the above unanimous decision
of a Constitution Bench of this Court for it has stood the
test of time and directly bears on the point on which I have
felt it necessary to express myself differently from the
view taken by my Lord the Chief Justice. I shall therefore
proceed to examine whether the appellants in these cases
could be said to have furnished the necessary particulars in
their pleadings, to enable the High Court to examine their
claim with reference to article 14 of the Constitution, for
it is by now well settled that mere efflux of time would not
raise the presumption of discrimination or denial of
equality before the law.
It will be sufficient for me to refer in this
connection to the pleadings in writ petition No. 1575 of
1965 and the accompanying affidavit, for the averments in
the other petitions are no better.
It has thus been stated in paragraph 22, in respect of
the Admar Mutt, Udipi, as follows:-
"22. The petitioner submits that the States
Reorganisation Act came into effect on 1-11-1956. The
Madras H.R.E. Act is being enforced by the respondents
only in the old Madras area namely, South Kanara and
the Kollagal Taluk of the present Mysore District,
whereas in entire areas of old Mysore, Coorg and
Hyderabad, there is no such demand, nor any legislation
similar to the one in the former areas. In the Bombay
area, there is a separate Bombay Public Trusts Act. The
3rd respondent has ample time in these 8 or 9 years to
unify the legislation and not to take advantage of the
disparities between the different areas and then try to
enforce the Madras Act and to make as much amount as it
can from out of the district of South Kanara alone.
This action of the 1st respondent is wholly
discriminatory under Section 14 of the Constitution of
India and is void and illegal on that ground alone."
Then it has been stated in paragraph 23 that the demands
made by the Commissioner of Hindu Religious and Charitable
Endowments upon the mutts and the non-mutts out of the 30
major institutions and the others which are minor
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institutions is discriminatory and illegal for the reason
that "mutts are a class by themselves and cannot be
discriminately mixed up with temples even from the point of
view of the services rendered by the first respondent to
them."
It is thus quite clear that the appellants rested their
plea of discrimination on the sole ground that the continued
application of the provisions of the Act to South Kanara
district of the reorganised State after 8 or 9 years from
November 1, 1956, (when the State was
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formed) without "unifying" the legislation on the subject of
Hindu religious and charitable endowments, was "wholly
discriminatory." The other plea in paragraph 23 about
"mixing" of mutts with temples is not quite intelligible and
has not even been referred to by counsel during the course
of their arguments. The ground which has been taken is
therefore quite untenable for, as has been mentioned, it has
been declared in the case of the Bhopal Sugar Industries
that it is impossible to lay down any definite time limit
within which the State has to make the necessary adjustment
for the purpose of effectuating the equality clause of the
Constitution, and that while the differential treatment
could not be permitted to assume permanency without a
rational basis to support it as years go by, a mere plea of
differential treatment is by itself not sufficient to
attract the application of article 14. The following further
observation in that case clearly bears on the point under
consideration:-
"It cannot be said that because a certain number
of years have elapsed or that the State has made other
laws uniform, the State has acted improperly in
continuing an impost which operates upon a class of
citizens more harshly than upon others."
It may be that if the appellants had furnished the
necessary particulars in support of their plea of
discrimination, the respondents would have come out with
whatever defence was available to them. For instance, the
State might perhaps have found it possible to plead that the
provision for the collection of the contribution under
section 76 of the Madras Act of 1951 was beneficial to the
religious and charitable institutions and endowments and was
not burdensome in view of the services rendered by the
authorities of the State government, and that sub-section
(5) of that section was beneficial as it provided that if
there was a surplus after meeting all the charges referred
to in the preceding sub-section, it could be utilised for
helping the poor and needy institutions etc. As it is,
section 81 of the Act provides for the establishment of the
Madras Hindu Religious and Charitable Endowments
Administration Fund, which vests in the Commissioner, and
not in the State, so that it has its separate existence and
purpose, and it might have to be examined whether the
provision for the making of compulsory contribution to it
was unfair or discriminatory.
If the appellants thought otherwise, it was necessary
for them to plead and establish the necessary facts to
enable a proper enquiry into their allegation of inequal or
discriminatory treatment. But, as has been stated, that has
not been done. I am therefore unable to think that, in the
absence of the necessary pleadings, it can be said that
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inequality is so clearly writ large on the face of the
impugned statute in its application to the district of South
Kanara only, that is perilously near the periphery of
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unconstitutionality merely because of the lapse of 23 years.
But quite apart from the unsatisfactory nature of the
pleadings in these cases which, by itself, justified the
dismissal of the writ petitions, and the fact that a
Constitution Bench of this Court has taken the view, in the
case of the Bhopal Sugar Industries Ltd., that it cannot be
said that because a certain number of years have elapsed,
the State has acted improperly in continuing an impost which
operates upon a class of citizens more harshly than upon
others, it has to be remembered that a mutt is a monastic
institution for the use and benefit of ascetics belonging to
a particular Order presided over by a superior who is its
religious teacher. The mutt property, though originally
given by a donor, belongs to that spiritual family
represented by the superior or mahant. It does not, however,
vest in him, as he is some sort of a "shabait", and vests in
the mutt as a juristic person. This has been sufficiently
borne out in the definition of "math" in clause 10 of
section 6 of the Madras Act of 1951. A mutt has therefore a
laudable object and it is in the interest of all concerned
that such endowments should be properly administered. As
there are mutts in the other areas of the Karnataka State
(besides the South Kanara district) it is necessary that the
State Government should examine whether the contribution
provided for by the Madras Act of 1951 is really necessary
and advantageous for the proper administration of the
religious and charitable institutions and endowments in the
State as a whole and if not, whether it is an inequality,
and its continued applicability to the South Kanara district
can be justified with reference to article 14 of the
Constitution. I agree with the Chief Justice that this may
be done "say, within a year or so."
P.B.R. Appeals dismissed.
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