THE COMMISSIONER, HINDU RELIGIOUS ENDOWMENTS, MADRAS versus SRI LAKSHMINDRA THIRTHA SWAMIAR OF SRI SHIRUR MUTT.

S.C.R.

SUPREME COURT i,EPORTS

1005

justify

the two parts did not

in the other parts of Rajasthan. This difference existed between that such pro for the welfare of gressive and ameliorative measures in a particular area should be done the people existing away with and the State be brought down to the level of the unprogressive States. The judgment shows that the Bench far from going back on its previous view the case adhered under appeal before us on its special facts.

it and expressly

distinguished

to

As a result that the view accordingly dismiss

of

the foregoing discussion we hold taken by the High Court is correct. We

the appeal with costs.

Appeal dismissed.

1954

TheStateof RaJasthan v. Rao Manohcr Sinthji.

Ghulam Hasan] •.

•

Agent for the appellant : R. H. Dhebar.

THE COMMISSIONER, HINDU RELIGIOUS ENDOWMENTS, MADRAS

1954

March 16.

ti.

SRI LAKSHMINDRA THIRTHA SW AMIAR OF SRI SHIRUR MUTT. [MEHR CHAND MAHAJAN C. J., MuKHERJEA, S. R. DAs, VIVIAN BosE, GHULAM HASAN, BHAGW~TI and VENKATARAMA AYYAR JJ.]

Constitution of India, arts. 19(1)(f), 25, 26, 27-Madras Hindu Religious and Charitable Endowments Act, 1951 (Madras Act XIX of 1951), ss. 21, 30(2), 31, 55, 56 and 63 to 69, 76--Whether the Constitution-Work "property" (f) ultra vires meaning of-Tax and fee, meaning of-Distinction bet1vcen.

in art 19(1)

Held, that ss. 21, 30(2), 31, 55, 56 and 63 to 69 of the Madras Hindu Religious and Charitable Endowments Act, 1951 (Madras Act XIX of 1951) are ultra vires arts. 19(\)(f), 25 and 26 of the Constitution cf India.

Section 76( I) of the Act is void as the provision relating to tlie payment of annual contribution contained in it is a tax and not a fee and so it was beyond the legislative competence of the Madras Sta~c Legislature to enact such a provision.

That on the facts of the present case the

imposition under s. 76( I) of the Act, although it is a tax, does not come within the hitter part of art. 27 because the t>bject of the contribution under the section is not the fostering or preservation of the Hindu reli· gion or any denomination under it but the proper administration ot rc.li<i;iam. tnms and institutions wherever they exist.

1006

SUPREME COURT REPORTS

[1954]

1954

Thi C•mmis4 siomr, Hindu &ligiow Endow 4 mmts, Madras v. Sri Lakshmindra 7 hirtha Swamiar of Sri Shirur Mutt.

•

The word "property" as used in art. 19( 1) ( f) of the Constitu tion should be given a liberal and wide connotation and should be extended to all well-recognized the insignia or characteristics of proprietary right.

types of interest

\vhich have

The ingredients of both office and property, of duties anJ per sonal interest are biended together in the rights of a Mahant and this property or beneficial the Mahant has the right to enjoy is interest so long as he is entitled to hold his office. Therefore he entitled to claim the protection of art. 19(1)(£).

A tax is a con1pulsory exaction of money by public authority

for public purposes enforceable by services renderc:d .

law and

is not payn1ent for~

It is not possible to formulate a definition of

that can apply to all cases as there are various kinds of fees. But a fc:e 1nay to generally be defined as a charge for a special service rendered 1"'hc: an1ount of individuals by so111e governn1ental agency. fee incurred by the levied is supposed Govern1nent in rendering the service, though in inany cases such expenses are arbitrarily assessed.

to be based on

the expenses

fc:c:

"The distinction between a

in the: fact that a tax is levied as part of a comn1on burden, while: a fee is a payn1ent for a special benefit or privilege."

lies prirnarily

tax and a fee

Scope of arls. 25 an<l 26 <lisi..:ussed. Meaning

tern1

the

of

"Mathadhipati"

and

"religion"

explained.

Vidya Varuthi v. Balusami ( 48 I.A. 302), Monahar v. Rhupen dm {60 Cal. 452), Ganesh v. Lal Behary (63 I.A. 448), /!habatarini v. Ashalata (70 I.A. 57), Angurbala v. Debabrata ((1951] S.C.R. 1125), Davis v. Benson (133 U.S. 333), The State of West Bengal v. Subodh Gopal Rose (Civil Appeal No. 107 of 1952 decided by the Supreme Court on the 17th December, 1953), Adelaide Company v. The Com monwealth ( 67 C.L.R. 116, 127), Minersville School Dutrict, Board of Education etc. v. Gobitis (310 U.S. 586), West Virginia State Board of Education v. Barnette (319 U.S. 624), Murdock v. Pennsyl vania (319 U.S. 105), /ones v. Opelika (316 U.S. 584). Matthews v. Chicory Marketing Board ( 60 C.L.R. 263, 276), Lower Mainland Dairy v. Crystal Dairy Ltd. ([1933] A.C. 168) referred to.

(Findlay Shirras on Science of Puhlic Finance, Vol. LP. 203). JUR1so1cTION : Civil Appeal No·

APPELLATE

C1VIL

38 of 1953.

Appeal under article 132(1) of

the Constitution of India from the Judgment and Order dated the 13th December, 1951, of Judicature, Madras, m Civil Miscellaneous Petition No. 2591 of 1951.

the High Court of

S.C.R.

SJJPREME COURT REPORTS

V. K. T. Chari, Advocate-General of Madras R. Gana'

pathy Iyer, with him) for the appellant.

B. Somayya and C. R. Pattabhi Raman (T. Krishna Rao and M. S. K. Sastri, with them) for the respondent. T. N. Subramania Iyer, Advocate-General of Travan Iyer and Sardar Baha core-Cochin dur, with him) for the Intervener (State of Travancore Cochin).

(T. R. Balakrishna

1954. March 16. The Judgment of the Court was

delivered by

•

1954

The Commis sioner; Hindu Religious Endow ments; Mad,ras v. Sr£ Llfkshmindra T.hirtha Swarniar •f Sri Shirur Mutt

MukMr:JeaJ.

the appellant from proceeding with

is directed against a MuKHERJEA J.-This appeal judgment of a Division Bench of the Madras High Court, (lated the 13th of December, 1951, by which the learned Judges allowed a petition, presented by the respondent under article 226 of the Constitution, to issue in his favour and directed a writ of prohibition the prohibiting settlement of a scheme in connection with a Math, the petitioner known happens It may be stated at the outset that the petition was filed at a time when the Madras Hindu Religious Endowments Act (Act II of 1927), was the writ was prayed for the Hindu Religious Endowments Board against the preaecessor that Act, which was constituted under in authority . of the present appellant and had initiated proceedings the petitioner under section 61 of the said Act.

as the Shirur Math, of which to be

for settlement of a scheme against

the head or superior.

in force and

to

The petition was directed to be heard along with two the other petitions of a similar nature relating temple at Chidambaram in the district of South Arcot and questions were raised in all of them regarding the II of 1927, hereinafter referred validity of Madras Act to as the Earlier Act. While the petitions were still pending, the Madras Hindu Religious and Charitable the New Endowments Act, 1951 Act), was passed by the Madras Legislature and came into force on the 27th of Augnst, 1951. Jn view of the Earlier Act being replaced by the new one, leave was their petitions given to all the New Act as well. and challenge the validity of

the petitioners

(hereinafter

to amend

called

1954

T ht Commis sioner, Hindu .Rtligious Endow rmnts, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt.

Mukhnjea J.

1008

/SUPREME COURT REPOR'fS

[1954]

in

So far as

the superior or Mathadhipati,

the Hindu Religion. Besides

to the proceedings. appeal

Under section 103 of the New Act, notifications, orders and acts under the Earlier Act are to be treated as issued, made or done by notifications, orders and acts the appropriate the corresponding under authority the New Act, and in accordance with this provisions of the Commissioner, Hindu Religious Endow provision, ments, Madras, who takes the place of the President, Hindu Religious Endowments Board under the Earlier Act, was added as a party the ~present

is concerned, the material facts may be shortly narrated as follows: The Math, known as Shirur Math, of which the petitioner is one of the eight is Maths situated at Udipi in the district of Souh Kanara to have been founded by Shri and are reputed they the well-known exponent of dualistic Madhwacharya, these eight theism is presided over by a Sanyasi Maths, each one of which or Swami, religious insti tution at Udipi known as Shri Krishna Devara Math, also established by Madhwacharya which is supposed to contain an image of God Krishna originally made by Arjun and miraculously obtained from a vessel wrecked at the coast of Tulava. There is no Mathadhi the Shri Krishna Math in pati and its affairs arc the other eight Maths by the superiors of managed by tbe Swami of each of turns and that the Shri Krishna Math these eight Maths presides over in every sixteen years. in turn for a period of two years of change The appointed in the headship of the time is the occasion of a great festival, Shri Krishna Math concourse af a vast known devotees gather at Udipi from all parts of Southern imposes a duty upon the India, and ·an ancient usage Mathadhipati that comes to the place at that time.

there exists another ancient

as Pariyayam, when

to feed every Brahmin

the custom

is

The petitioner was installed as Mathadhipati in the year 1919, when he was still a minor, and he assumed management after coming of age some time in 1926. the' Math was heavily At in debt. Between time that the Swami succeeded in clearing off a 1926 and 1930 In 1931, however, came the large portion of the debt.

195{

T"6 Commis· siotteT, Hindu Religious Endoww mmts, Madras ·V. Sri Lalcshmindra T hirtha Swamiar of Sri .Shirur MMtt.

S.C.R.

SUPREME COURT REPORTS

lOOJ

of

action

that time,

the direction of

on improved

that followed, but

troubles again arose

to appoint a competent manager

turn of his taking over management of the Shri Krishna Math and he had had to incur debts to meet the heavy the Pariyayam . ceremonies. expenditure attendant to some extent during The financial position in the years the year of the second Pariyayam of , 1946, which was to scarcity and the high prices of the Swami. Owing commodities at the Swami had to borrow money to meet the expenditure and the debts mounted The Hindu Religious up to nearly a lakh of rupees. Endowments Board, functioning under the Earlier Act of 1927, intervened at this stage and in exercise of its powers under section 61-A of the Act called upon the to manage the Swami the institution. The petitioners' case is that affairs of the Board was the instigated by one Lakshminarayana Rao, a lawyer of Udipi, who wanted to have control over the affairs of the Math. It appears that in pursuance of the Board, one Sripath Achar was appointed an agent and a Power of Attorney _was in his favour on the 24th of it is alleged by the peti December, 1948. The agent, tioner, wanted to have his own way in all the affairs of the Math and paid no regard whatsoever to the wishes the Maham. He did not even submit accounts to of . In the Maham and deliberately flouted his authority. this state of affairs the Swami, on the 26th of Septem ber, 1950, served a notice upon terminating the agent his agency and calling upon him to hand over to the relating Mathadhipati all account papers and vouchers ·to together with the cash in hand. Far, from complying with this demand, the agent, who was the aforesaid Lakshminarayana Rao, supported to cancel his the Swami questioned agency and threatened that he would refer the matter to the Board. On the 4th of October, 1950, for action a suit against the agent in the Sub the petitioner filed the account Court of South Kanara the Math, -for books and other articles belonging rendering an account of the management and also for the said agent from interfer an injunction the ing with the affairs of the Math under colour of

by the authority of

for recovery of

the institution

restraining

executed

to

195~

Tht Commis sioner, Hindu &li.gfous Endow ments, Madras v. Sri Lakshmitidra Thirtha Swamiar of Sri Shirur Mutt.

Mukhrr.ie• J.

•

1010

SUPREME COURT REPORTS

[1954]

of

on

the very

this suit

it appears,

.The Board,

that enquiry was before

issued a notice to the Swami proposing the 24th of October

the Power of Attorney which authority conferred by the plaintiff had cancelled. The said Sripath Achar anticipating filed an application to the Board the 3rd of October, 1950, complaining against the on cancellation of the Power of Attorµey and his manage the Math. The Board on the 4th October, ment of to inquire 1950, following into the matter at 2 p. m. at Madras and requesting the Swami either in person or by a pleader. To this the Swami to appear the sent a reply on 21st October, 1950, stating the subject-matter in the original suit filed by him and as the matter court was sub j~dice, the enquiry should be put off. A copy in that suit was also sent along with of the plaint filed the dropped that reply. enquiry, but without waiting for the result of the suit, initiated proceedings suo moto under sect(on 62 of the the Swami on the Earlier Act and issued a notice upon 6th of November, 1950, stating that it had reason to of the said Math were the endowments that believe that a scheme should be framed being mismanaged and the administration of its affairs. The notice was for the Swami and the 8th of served af!ixture on December, 1950, was fixed the date of enquiry. On as that date at the Swami, it was adjourned the 21st of December, following. On the 8th of December, 1950, an application was filed on behalf of the Swami praying to the Board to issue a direction to the agent to hand over the account papers and other documents, without which it was not possible for him to file his objections. As the lawyer appearing the matter was again Swami was unwell, for the adjourned the 10th of January, 1951. The Swami was not ready with his objections even on that date as his lawyer had not recovered from his illness and a the Board· on the previous day telegram was sent requesting to grant a further adjournment. The Board did not accede to this request and as no explanation was filed by the Swami, the enquiry was closed and orders reserved upon it. On the 13th of_ the Swami, it appears, sent a written January, 1951,

the request of the counsel for

the latter

till

by

to

to

1954

The Commis sioner, Hindu Religious Endow ments, Madras v. Sri Lakshmindra T hirtha Swamiar of Sri Sftirur Mutt.

Mukherjea J,

S.C.R.

SUPREME COURT REPORTS

IOU

as

to

the

the

from

1951,

order

to send

satisfied

the final

the Math.

It was alleged

to the Board, which

in that the Math and

of February, 1951, out of which

received a notice that the Board was

the latter admittedly explanation the 24th of January, .1951, received on the 15th. On the Board stating the Swami inter alia the interests of proper administration of its endowments, the settlement of a scheme was necessary· A draft scheme was sent along with the notice and if the petitioner had any objections the same, he was required in his objections on or before the llth regarding of February, the scheme would be made on the 15th of February, the peti 12th 1951. On this appeal petltlon, tioner filed anses, · in for the High Court of Madras praying of prohibition to prohibit the Board from taking a writ further steps in the matter of settling a scheme for the inter a/ia administration of the Board was actuated by bias against the peti that tioner and the action taken by it with regard to the settling of a scheme was not a bona fide act at all. The main contention, however, was that having regard to the Consti the fundamental rights guaranteed under tution institutions beionging the law regulating the framing of a scheme interfering with the management of the Math the Mathadhipati conflicted with the provisions of art icles 19(1) (f) and 26 of the Constitution and was hence It was alleged further that the void under article 13. their provisions of the Act were discriminatory in character the 15 of Constitution. As has been stated already, after the the petitioner was allowed to New Act came into force, the attack was now directed amend his petition and against the New Act the which replaced the earlier legislation. The learned Judges, who heard

in matters of religion and religious

the matter with elaborate fullness, both on involved

tl1e petition, went the into it as well as on its in constitutional questions the merits, it was held that in the circum merits. On the Board was a the case of stances perverse exercise of its jurisdiction and that it should

and offended against article

constitutional validity of

religious denominations,

and its affairs by

the action of

to particular

6--97 S. C.Ind'a/59

1954

The Commis- sioner, Hindu Religious Endow ments, Madras v. Sri Lakshmindra T hirtha Swamiar of Sri Shirur Mutt.

Muk/,,rjea ].

1012

SUPREME COURT REPORTS

[1954]

issues

to proceed in regard to

the settlement not be allowed of the scheme. On the constitutional raised in the case, the learned Judges pronounced quite a num ber the of sections of the New Act to be ultra vires Constitution by reason of their being in conflict with the fundamental rights of the petitioner guaranteed articles 19(1) (f), 25, 26 and 27 of the Consti under tution. the result, In the issued on the Commissioner, pet1t10n was made absolute and Hindu Religious Endowments, Madras, was prohibited from proceeding further with the framing of a scheme in regard to the petitioner's Math. The Commissioner has now come up on appeal before us on the strength of the High Court under article 132(1) of the Constitution.

granted by

a certificate

the rule

nisi

in support of

to the constitutional points

The learned Advocate-General

for Madras, who appeared the appeal, confined his argu ments exclusively involved in this case. Although he had put in an application the constitutional grounds, to urge grounds other than that application was not pressed not and he did challenge the High its decision on the merits of the petition. Court based The position, the order of the High therefore, Court issuing the writ of prohibition against the appel the decision which we lant must stand might arrive at on raised before us.

the Constitution Points

fact upon which

irrespective of

findings of

that

the

is

laws

enact

It is not disputed that a State Legislature

is com petent to on the subject of religious and charitable endowment, which is covered by entry 28 of List III in Schedule VII of the Constitution. No incompetency on the part of the question of legislative in question Madras Legislature to enact has been raised before us with the exception of the to payment of annual contribution prov1s1on relating in section contained 76 of the impugned Act. The that has been advanced argument the contri is, that bution is in reality a tax and not a fee and consequently the State Legislature had no authority to enact a pro vision of this character. We will deal with this point the other points canvassed :separately

the legislation

on. All

later

S.C.R.

SUPREME COURT REPORTS

1013

before us relate to the constitutional validity or other wise of the 'several provisions of the Act which have been held to be invalid by the High Court of Madras on grounds of their being in conflict with the funda mental rights guaranteed under articles 19(1) (f), 25, to appreciate 26 and 27 of the contentions these heads by the learned counsel on both sides, it may be the convenient salient provisions of the Act.

that have been advanced on

to refer briefly to the

the Constitution.

scheme and

In order

1954

The Commis· sioner, Hindu &liiiou.s Endow· '!l''nts, Madras v. Sri Lakshmindra Thirthit Swamiar ofSri Shirur Mutt.

Mukherjea J.

in

The object of

the administration and

the legislation, as indicated

the preamble, is to amend and consolidate the law relating governance of Hindu to religious and endowments charitable institutions and in the Stat.e of Madras. As compared with the Earlier Act, . its scope is wider and it can be made applicable to purely charitable endowments by proper notification under section 3 of the Act. The Earlier Act provided for supervision of Hindu religious endowments through a statutory body known as the Madras Hindu Religious Endowments Board. The New Act has abolished this Board and the administration of religious and charit able institutions has been vested practically in a department of the Government, at the head of which is the Commissioner. The powers of the Commissioner and of the other authorities under him have been the enumerated Commissioner are the Deputy Commissioners, Assistant Commissioners and Area Committees. The Commis sioner, with the approval of the Government, has to the State into certain areas and each area 1s divide to in charge of a Deputy Commissioner, placed be the Commissioner · can the powers of whom delegated. The State has also to be divided into a number of divisions and an Assistant Commissioner is to be placed in charge of each division. Below the be an Area Com Assistant Commissioner, mittee in charge of an the temples situated within a division or part of a division. Under section 18, the Commissioner is empowered to examine the records of any Deputy Commissioner, .Assistant Commissioner, or Area Committee, or of any trustee not being the trustee

in Chapter II of the Act. Under

there will

1954

The Commis sioner, Hindu Religious Endow ments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt.

1014

SUPREME COURT REPORTS

[1954]

21

religious

the purposes

exist. Section

it obligatory on

is placed under

of a Math, in respect of any proceeding under the Act, to satisfy himself as to the regularity, correctness, or propriety of any decision or order. Chapter III contains the general provisions relating to all religious section 20, the administration of institutions. Under religions endowments the general snperintendence and control of the Commissioner and is empowered to pass any orders which may be he deemed necessary to ensure that such endowments are properly administered and their income is duly appro priated for for which they were founded or the Commissioner, the gives Deputy and Assistant Commissioners and such other the power officers as may be authorised in this behalf, to enter the premis.es of any institution or any place of worship for the purpose of exercising any power conferred, or discharging any duty imposed, by or under the Act. The only restriction is that the officer exercis.ing the power must be a Hindu. Section the trustee of a religious 23 makes institution to obey all lawful orders issued under the provisions of this Act by the Government, the Commis the Deputy Commissioner, sioner, the Area Commit the Assistant Commissioner. Section 24 lays tee or down that in the administration of the affairs of the institution, a trustee should use as much care as a man of ordinary prudence would use in the management of his own affairs. Section 25 deals with the preparation of registers of all religious institutions and section 26 provides for the annual verification of such registers. Section 27 imposes a duty on the trustee to furnish to the Commissioner such accounts, returns, reports and other the Commissioner may require. Under section 28, power is given to the Commissioner or any other officer authorised by him to inspect all to a movable and religious Section 29 forbids alienation of all immovable properties belonging to the trust, except leases for a term not exceeding five years, without the sanction of 30 lavs down for that although and making

incur expenditure for securing the health

immovable properties appertaining

the Commissioner. Section

a trustee may

information as

arrangements

institution.

S.C.R.

SUPREME COURT REPORTS

1015

in

the

specified

interested

to be allotted

in writing, of

connected with

comfort of pilgrims, worshippers and other people, when there is a surplus left after making adequate provision for purposes specified in section 79(2), he shall be guid ed in such matters by all general or special instructions which he may receive from the Commissioner or the Area Committee. Section 31 deals with surplus funds which the trustee may apply wholly or in part with the Deputy Commis the permission, in section sioner for any of the purposes 59(1 ). Chapter IV deals specifically with Maths. Sec tion 52 enumerates the grounds on which a suit would lie to remove a trustee. Section 54 relates to what is "dittam" or scale of expenditure. The trustee called has got to submit to the Commissioner proposals for fixing the "dittam" and the amounts to the various objects institution. The proposals are to be published and after rece1vmg suggestions, if any, the from persons institution, they would be scrutinised by the Commis-. sioner. If the Commissioner thinks that a modification is necessary, he shall submit the case to the Govern ment and the orders of the Government would be final. Section 55 empowers the trustee to spend at his discre tion aird for purposes connected with the Math the "Pathakanikas" or gifts made to him personally, but he is required to keep regular accounts of the receipts and expenditure of such personal gifts. Under section 56, the Commissioner is empowered to call upon the administration trustee to appoint a manager for of institution and in default of such appointment, the Commissioner may make the appointment himself. Under a Deputy Commissioner is competent to frame a scheme for any religious institution if he has reason tha·t to believe the in the interests of the proper administration of trust any such scheme is necessary. Sub-section (3) for a of this section provides Math may contain inter alia a provision for appoint ment of a paid executive officer professing the Hindu the funds religion, whose salary shall of the institution. Section for application of the "cy pres" doctrine when the specific

be paid out of 59 makes provision

the secular affairs of the

that a scheme settled

section 58,

the

1954

The Commis- sioner, Hindn Religious Endow ments, lvladras v. Sri Lakshmindra T hirtha Swamiar of Sri Shirur Mutt. Mukherjea J.

'

1954

The Commis· sioner, Hindu Religious Endow ments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt.

MukherjeaJ.

1016

ST.JPREME COURT REPORTS

[1954}

it

all

for

remains

religious

institutions

institutions. A

religious accordance with the provisions

objects of the trust fail. Chapter VI of the Act, which comprises sections 63 to 69, deals with the notification institution may of religious laid be notified in down in this chapter. Such notification in force for five years and the effect of it is to take over in an executive officer the administration and vest appointed by the Commissioner. Chapter VII deals with budgets, accounts and audit and Chapter VIII relates to finance. Section 76 of Chapter VIII makes it compulsory to pay annually to the Government a contribution not exceed the ing 5 per cent. of their income on account of services rendered to them by the Government and their officers functioning under this Act. Chapter IX is not material for our purpose, and Chapter X deals with provisions of a miscellaneous nature. Section 89 in Chapter X prescribes for refusal by a trustee to comply with the provisions of the Act. Sec tion 92 lays down that nothing contained in the Act shall be de,med to confer any power or impose any duty in contravention of the right conferred on any religious denomination under clauses (a), (b) ,;,ind ( c) of article 26 of the Constitution. Section 99 vests a to call for revisional and and examine the other subordinate authorities as to the regularity and propriety of any proceeding taken or any order or decision made by them. These, in hrief, are the provisions of the Act material for our present purpose.

the Government records of the Commissioner

to satisfy themselves

the penalty

jurisdiction

in

respondent in could be

The learned Judges of the High Court have taken the view that the as Mathadhipati has institution and its the certain well defined rights endowments which rights to regarded as the meaning of article 19(1) (f) of the property within Constitution. The provisions of the Act to the extent that they take away or unduly restrict the power to exercise restrictions within the meaning of article 19(5) and must conse quently be held invalid. The High Court has held in the second place that the respondent, as the head and

right are not

reasonable

these

1954

The Commis sioner, Hindu Religious Endow ments, Madras v. Sri Laksh;nindra Thirtha Swaffliar of Sri Shirur Mutt.

Mukhnjea ].

S.C.R.

SUPREME COURT REPORTS

1917

of

in

head

to manage

and superior, and

representative of a religious institution, has a ri6ht guaranteed to him under article 25 of the Constitution to practise and propagate freely the religion of which and his followers profess he to be adherents. This the High Court, has been right, the opinion the provisions of the, Act. The affected by some of High Court has held further that the . Math in question really an institution belonging to Sivalli Brahmins, is who are a section of the followers of Madhwacharya and hence constitutes a religious denomination with in the meaning of article 26 of the Constitution. This right under religious denomination has a fundamental article 26 in matters of its own affairs religion through the Mathadhipati who their spiri is those provisions of the tual the rights of the Act, which substantially respect, amount to violation of Mathadhipati guaranteed under article 26. the fundamental that the provision for Lastly, in section 76 of the Act compulsory contribution made the Consti comes within tution. This issue and we it separate! y later on. So far as the propose concerned, we will have to other examine that have learned Attorney-General, who been raised intervener · appeared for in this and other connected the questions raised are, whether these articles of the Constitution are at all 'lvailable the present in to the respondent case they give him any protection the rights and privileges, of the infraction of regarding which he complains.

the mischief of article 27 of last point raises a wide

the Union of India as an cases, and

right the High Court has held

first of all the general contentions

to discuss three

and whether

take away

points arc

in this

by the

legal sense,

that requires consideration

As regards article 19(l)(f) of

the C.onstitution, the question the is, whether respondent as Mathadhipati has a right to property in its the endowments which would enable him to claim the protection of is also formulat as to whether this article deals with concrete rights ed of property at all ? So far as article 25 of the Consti the point raised is, whether this tution

this article? A question

institution and

is concerned,

religious

the

in

1954

The Commis· sioner, Hindu Religious EndowM ments, .\>!i:1ras v. Sri Lakshmindra Thirlha Swamiar of Sri Shirur Mutt.

Mukherjea ].

1018

SUPREME COURT REPORTS

[1954]

is

for in

rcgar'~ to article 26,

it is said, is intended

article which, to protect religious freedom only so far as individuals are concerned, can in favour of an institution or organisatic"1 ' be invokecl that a the contention WitI1 the description of a religi Math does not come within ous denomination as provided the article and even interfrrd with is its if it does, what cannot be in matters of religion to manage rigl1t only and nothing else. the word "religion", in this article, should be taken in its strict etymological sense as distinguished from any in kind of secular activity which may be connected some way with religion but doe& not form an essential to part of clause (2) (a) of article 25 ar.d clause ( d) of article 26. for consideration one We will after another.

it. Reference is made

take up these points

this ccnnection

its own affairs

as used

is said,

that

in

It

to say

As regards the property

rights of a Mathadhipati.

it may not be possible in view of the pronounce men~s of the Judicial Committee, which have been in this country ever since 1921, accepted as good law that a Mathadhipati ho:ds the Math property as a life tenant or is similar to that of a Hi11du that his positio'1 wdow in respect to her husband's estate or of an English Bishop holding a benefice. He is certainly not a trustee in the strict sense. He may he, as the Privy Council('), institution who says, a manager or custodian of the is answer has to discharge such; but he is not a mere manager and it able as would not be ;·ight to describe Mahantship as a mere office. A superior of a Math has not only duties to discharge in connection with the endowment but he of a beneficial character which has a personal than that is sanctioned by custom. and is much larger of a Shebait It was held by the Calcutta High Court('), that a Full Bench of this decision was Shebaitship itself approved of by the Judicial Committee in Ganesh v. Lal Behary('), and again in Bhabatarini v. Ashalata ('),

the duties of a trustee and

in the debutter property·

is property,

interest

and

(t) Vide Vidya Varuthi v. Balusami, 48 I. A. ::;02 .'.2', ''i.--1(' .\fonahai v. Bhupendra 6n Cal. 452. is" 63 r. A. 448. 14' 7or.A.57.

The Commis sioner, Hindu Religious Endow~ ments, Madras v. Sri Lakshmindra T hirtha Swamiar of Sri Shirur Mutt.

MukherjeaJ.

S.CR.

SUPREME COURT REPORTS

1019

in

in vest

tenures

this court

in some respects

to an institution

to create derivative

The effect of the first two decisions, as the Privy Council pointed out in the last case, was to emphasise the pro prietary element in the Shebaiti right' and to show that though an anomaly, it was anomaly to be accepted having been admitted into Hindu law from an early date. This view was adopted in its in Angurbala v. Debabrata (' ) entirety by Shebaiti in respect to and what was said in that case right · could, with equal propriety, be applied to the office of a Mahant. Thus in the conception of Mahant the elements of office and ship, as in Shebaitship, both property, of duties and personal interest are blended together and neither . can be detached from the other. the Mahant in the The personal or beneficial interest of endowments attached is manifested in his large powers of disposal and administration and respect to his right these and other rights of a endowed properties; and the office of the Mahant with similar character the character of though right which, anomalous to some extent, is still a genuine legal right. It the Mahantship is not heritable like true is ordinary property, but is because of its peculiar nature and the fact the office is generally held by an ascetic, whose connection with his natural family being completely cut off, the ordinary rules of succession do not apply. There

the word "property", as the Constitution, should not used in article 19(1) be given a liberal and wide connotation and should not be extended types of interest those well recognised ·which have the insignia or characteristics of proprietary the ingredients of both office and right. As said above, property, of duties and personal interest are blended together in the rights of a Mahant and the Mahant has to cnjov this propertv or beneficial interest so the right to hold his. office. To take away long as he is entitled this beneficial interest and leave him merely to the discharge of his duties would be to destroy his character It is as a Mahant altogether. interest which he enjoys

that true is appurtenant

is no reason why

proprietary

(f) of

.that

that

that

to

the beneficial · to his duties ·

(1) [1951) S.C.R. 1125·

Tm Commis sioner, Hindu Religious Endow• ments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt. Mukherjea J.

1020

SUPREME COURT REPORTS

[1954]

if

to discharge

and as he is in charge of a public institution, reasonable placed upon his rights in restrictions can always be the public. But the restrictions would the interest of they are calculated to make cease to be reasonable him unfit the duties which he is called to discharge. A Mahant's duty is not simply to upon the temporalities of a Math. He is the head manage the purpose of and superior of spiritual ·fraternity and Math is to encourage and foster • spiritual training by maintenance of a competent line of teachers who could impart and the disciples to strengthen the followers doctrines of the particular school or order, of which they profess to be adherents. This purpose cannot be the restrictions are such as would bring the served if Matha<lhipati down the level of a servan~ under a State department. from this standpoint that the is reasonableness of the restrictions should be judged.

religious of

to and try

the Math

instructions

to

It

to

In

A point was

the respondent

that as article 19(1) (f) deals only with

to any particular property, in

suggested by the learned Attorney General the inherent in a citizen to acquire, hold and natural rights the abstract without reference to dispose of property in rights it can be of no real assistance the present case and article 31 of the Constitution, which deals with depri vation of property, has no application here. the case of The State of West Bengal v. Subodh Copa! Bose( 1 ) (Civil Appeal .No. 107 of 1952, decided by this court on the 17th December, 1953), an opinion was expressed by Patanjali Sastri that article 19(1) (f) of the Constitution is concerned only with the abstract right to acquire, hold and dispose of property and capacity and that to concrete property rights. This, it may be noted, was an expression of opinion by the learned Chief it was not the decision of the court; for out of the other four learned Judges who together with the Chief Justice constituted two did not definitely agree with this view, the Bench, while two did not express any opinion one way or the other. This point was not raised before us by the Advocate-General for Madras, who appeared nor by any of the other in support of the appeal,

Justice alone and

it has no relation

the remaining

C. J.

(1) [1954] S.C.R. 587.

!954

Tiu Commis sioner, HikdU. &ligious Endow. mmts, .Madras v. Sr£ Lakshmindra T hirtha Swa.ffliar of Sri Shirur Mutt.

Muk,,,rjea ].

S.C.R.

SUPREME COURT REPORTS

1021

to support the view taken by

in this case. The learned Attorney that he was not pre the late Chief the raised to get an authoritative pronouncement upon it it would not be proper the the advantage of any it. We would prefer this court has proceeded all along, in the past, on the footing to concrete as well

counsel appearing General himself stated candidly pared Justice as mentioned above and he only point by the court. to present arguments addressed to proceed, as dealing with similar cases that article 19(1)(f) applies equally as abstract rights of property.

case when we had not to us upon

express any final opinion upon

In our opinion,

the point

in

in

secures

subject

to every person,

individuals only or

We now come to article 25 which, as its language to public indicates, to order, health and morality, a freedom not only entertain such religious belief, as inay be approved of by his judgment and conscience, but also to exhibit his belief in such outward acts as he think> proper and for the edification to propagate or disseminate his ideas is raised as to whether the word of others. A question includes "persons" here means corporate bodies as well. The question, in our opinion, relevant for our present purpose. A is not at all is certainly not a corporate body; he is Mathadhipati fraternity and by virtue of his the head of a spiritual teacher. office has to perform the religious It is his duty to practise and propagate tenets, of whi.ch he is an adherent and if any provision of law prevents him from propagating his doctrines, that would certainly affect the religious freedom which to every person under article 25. Insti is guaranteed tution as such cannot practise ·or propagate religion; it can be done only by individual persons and whether the these persons propagate tenets for which the institntion stands is really imma It is the propagation terial for purposes of article 25. of belief no matter whether the propagation in a chnrch or monastery, or in a temple or parlour meeting.

their personal views or

the duties of a religious

is protected,

takes place

that

As regards article 26,

the precis~ meaning or connotation of

the first question -Is, what is the expression

1954

The Commisp sioner, Hindu Religious Endow• ments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt.

MukheT,J°taJ.

1022

SUPREME COURT REPORTS

[1954]

is

it

It

one

find

teachers since

spiritual organisation. The

"religious denomination" and whether a Math could come within this expression. The word "denomi nation" has been defined in the Oxford Dictionary to together under mean "a collection of individuals classed the same name: a religious sect or body having a com faith and organisation and designated by a mon distinctive name." is well known that the practice of setting up Maths as centres of theological teaching was started by Shri Sankaracharya and was followed then. After Sankara, came by various a galaxy of religious teachers and philosophers who the different sects and sub-sects of the Hindu founded t:1e prrs"nt ,·_cc_; rdigion in India at that we of such sects or sub-sects Each can certainly a religious denomination, as it is designated be called the by a distinctive name,-in many cases name founder,-and has a common faith the of and common followers of Ramanuja, who are known by the name of Shri Vaishnabas, undoubtedly constitute a religious denomi nation; and so do the followers of Madliwacharya and teachers. other religious It is a fact well established the eight Udipi Maths were founded by that the trustees and the by Madhwacharya himself and beneficiaries of these Maths profess to be followers of that the Math in question is in charge of the Sivalli Brahmins who constitute a section of the followers of Madhwa contemplates not merely a charya. As religious denomination but also a section thereof, the Math it the purview of this article. can legitimately come within to be considered in regard to article 26 is, what is the scope of clause (b) of the article which speaks of management "of its own affairs language un doubted! y suggests that there could be other affairs of a religious denomination or a section thereof which are not matters of religion and to which the guarantee given by this clause would not apply. The question to be drawn between what are is, where is the line matters of religion and what are not?

the spiritual frat~rnity represented by

teacher. The High Court has

religion I" The

in matters of

that remains

The other

tradition

article

found

thing

that

or

26

1954

·r he Commis~ .sinner, Hindu Religious Endour · mtnts, Madras v. Sri Lakshmindra· Thirtha Swamiar of Sri Shirur Mutt.

Muklzerjea ].

S.C.R.

SUPREME COURT REPORTS

1023

It

and

right

impose.

relating

the right

to administer

The administration

legislature can validly

that questions merely

It will be seen that besides

in matters of religion, which

to manage its is given by own affairs two clauses of article 26 guarantee clause (b ), the next to acquire and to a religious denomination the in such property own property and accordance with law. of its thus been property by a religious denomination has the riglit to manage placed on a different footing from its own affairs in matters of religion· The latter is a fundament:il right which no legisla_ture can take away, the former can be regulated by laws which whereas the is clear, there to administration fore, of properties belonging to a religious group or inst!tu are not matters of religion to which clause (b) tion the article ·applies. What then are matters of reli of gion? The word "religion" has not been defined in it is a term which is hardly the Constitution In an American msceptible of any rigid definition. case('), 'religion' has to his Creator reference and impose of reverence for they to His Being ¥id character and of ooedience to His wi!I. It is often confounded with cultus of fOrm or worship the of a particular sect, but latter." We do not think that definition can be regarded as either precise or adequate. Articles 25 and 26 of our Constitution are based for the most part upon article 44(2) of the Constitution of Eire and we have great doubt whether a definition of "religion" the minds of our as Jiiven above could have been in Con~titution-makers when the Constitu of faith with tion. Religion individuals or communities and is not necessarily theistic. There are wdl known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as con to their spiritual well being, but it would not be ducive is notlllng el6e but a: correct

it has been said "that to one's views of his relation the obligations

is distinguishable from the above

they framed a matter it

is certain! y

the term

that religion (1) Vide Da11is v. Benso,,, 133 U.S. at 34Q.

say

to

The Commis .. sioner, Hindu Religious EndoW"" nients, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt.

Mukhrr}ta J.

1024

SUPREME COURT REPORTS

[1954]

to accept,

its followers

The guarantee

for rituals and

doctrine or belief. A religion may not only lay down a code of ethical rules it observances, ceremonies might prescribe and modes of worship which are regarded as integral parts of religion, these forms and observances and might extend even to matters of food and dress. under

our Constitution not only the freedom of religious opinion but it protects protects also acts done this is in pursuance of a religion and made clear by the use of the expression "practice of in article 25. Latham C. J. of the High religion" Court of Australia while dealing with the provision of section 116 of the Australian Constitution which inter alia forbids the "free exercise of any religion" made the IO!lowing weighty observations ( 1 ) :

the Commonwealth

to prohibit

that,

principle

of freedom of religion.

"It is sometimes suggested

in discussions on though

the the civil subject of freedom of religion interfere with religious opinions, Government should not it pleases with any acts it nevertheless may deal as which are done in pursuance of religious belief without infringing the It to be difficult to rnaintai1' this distinc to me appears the interpretation of section 116. to as relevant tion the exercise of terms The section refers to in express religion, and it is intended therefore to protect from laws acts which the operation of any Commonwealth the section are done in the exercise of religion. Thus goes liberty of opinion. It beyond protecting protects also acts done in pursuance of religious belief as part of religion."

far

.

fully the

These observations apply by

to the protection of religion as guaranteed Indian Constitution. Restrictions by the State upon free exercise of religion are permitted both under articles 25 and 26 on grounds of public order, morality and health. Clause (2) (a) of the State to regulate or article 25 reserves other restrict an economic, reli secular activities which may be associated with gions practice and there is a further the the State can State by. sub-clause (b) under which

the right of financial,

right given to

political

and

(1) Vide Adelaide Company v. The Commonwtalth 67 C.1;-.R. 116, 127.

S.C.R.

SUPREME COURT REPORTS

1025

1954

Till Commis Sioner, ·Hindu Religious EndoW ments, Madras v. Sri Laksltmindra Thirlha SWamiiJr of Sri Shirur Mutt. Muk/,,rjea J.

legislate for social welfare and reform even though by religious practices. so doing interfere with it might lays stress upon clause The learned Attorney-General (2) (a) of the article and his contention is that all secu religion lar activities, which may be associated with but do not really constitute an essential part of it, are amenable

to State regulation. '

to

the

that

to be

the mere fact

formulated m

recital of sacred

The contention

the sacred fire, all

that religion itself.

there should be daily

think, be supported. essential ascertained with

such broad terms first place, the In cannot, we is part of a religion what constitutes to the reference primarily If the tenets of any doctrines of that offerings of ~eligious sect of the Hindus prescribe to the idol at particular hours of food should be given the da'y, that periodical ceremonies should be perform in a certain way at certain periods of the year or ed that texts or oblations these would be regard ed as parts of religion and they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial · or economic character; all of them are leligious practise.s and sho.uld be regarded as matters of religion within the meaning of article 26(b ). What article 25(2) (a) contemplate.s is not regulation by the State of religious practices as freedom of the which is guaranteed by the Constitution except when they run· coun'ter to public order, health and morality, regulation of activities which are economic, com but they are mercial or political in their character though refer in associated with religious practices. We may this connection to a few American and Australian cases, all of which arose out of the· activities of persons religious association known as connected with persons "Jehova's - Witnesses." This association · of and loosely organised other countries regard ·the literal interpretation of the to proper religious beliefs. This Bible as fundamental the Bible colours belief ideas. They refuse many of take the king or other constituted oath of allegiance

throughout Australia, U.S.A.

their political to

in the supreme authority of

such,

the

to

1954

The Commis sioner, Hindu Religious Endow ments, Madras v. Sri l.akshmindra Thirtha Swamiar of Sri Shirur ... Mutt.

M1•kherj,a J.

1026

SUPREME COURT REPORTS

[1954]

to

justified and

taken against

the National Security Regulations of

the to show m\Pect human authority and even national flag, and they decry all wars between nations and all kinds of war activities. In 1941 a company of in Australia com incorporated "Jehova's Witnesses" menced proclaiming and teaching matttrs which were prejudicial to war activities ancl the defence of the Commonwealth and steps were them the State. under The legality of the action of the Government was ques the High tioned by means of a writ petitiQn before Court and the High Court held that the action of the that section 116, which Government was. under the Australian guaranteed freedom of Constitution, was not the infringed by National Security Regulations('). These were un of doubtedly religious belief entertained by a particular community. In such cases, as Chief Justice Latham pointed out, the provision for protection an absolute interpreted and applied be independently of other provisions of the Constitution. These privileges must be the right of the State to employ to ensure living without which peace, liberty would be a constitutional guarantee of civil mockery.

the sovereign orderly

religion in any way

of religion was not

though arising out

political activities

reconciled with

protection

security

power

and

to

the

the pupils to participate

The courts of America were at one

time greatly question of legality of a State agitated over in public schools regulation which required on pain of in a daily compulsion ceremony of saluting flag, while reciting the national in unison, a pledge of allegiance to it in a certain set in Minersville School formula. District, Board of Education, etc. v. GobitiI( 2 that case two small children, Lilian and William Gobitis, of Minersville, were expelled from to salute the national flag as Pennsylvania, for refusing family were part of the daily exercise. The Gobitis affiliated with "Jehova's Witnesses" been 67 C.L.R. 11

(1) Vide Adelaide Company v. The Commonwealt.>:,

the public school

question arose

and had

). In

The

•

127.

(•) 310 U.S. 586.

S.C.R.

SUPREME COURT REPORTS

•

f

'

•

,<

:

,.' • ,: ~ ~ .

j

' ' '

'

1027

195'4

The Commis sioner, Hindu Religious Endow ments, Madras .v. Sri Lakshmindra T hirtha Swamiar of Sri Shirur MutJ. Mukherjea J'.

such

foster

'exacted

respect for

a sentiment

to beli~ve that

.a brought up conscientipusly gesture of the flag was . forbidden by the scripture. The point· for decision by the Supreme Court Was whether· the requirement of participation in such a ceremony a child, who refused· upon froin sincefr · ~eligtous ground, li1fringed the liberty of religion guaranteed by the First arid the Fourteenth ' Amend ments? The court held' by a majority that it did not and . that 'legislature it' was within the province of the and ffie school authorities to adopt appropriate means to· evoke and of national unity amongst the children in public schools." The Supreme Court, however, changeCl · their views on· this identical the later case of West .Virginia State Board of point Education v: Barnett'e( 1 ). 'There it was held overruling the earlier decision referred ·to · above' that the ' actioh in of a State public ·schools to salute the 'flag and pledge allegiance constituted a violation of the First and the Fourteenth Ame1idinents. This difference 'in judicial' opinion brings out forcibly 'the difficult ·task 'wliich ·a court has fo per form in cases of this type where the freedom or re'ligious convictions genuinely entert:iined by . men come ihto conflict with · the · proper political attitude which is from. citizens in matters'· of unity and soli- expected darity of the State organization·. .. -

it compulsory

for children

iri making

·· • ·

·'

in

'·

'

~ '

the

to purchase

As regards •commercial· activities, which are. prompted by religious beliefs, we can, cite .. the ,case of Murdock v. ·petitioners . were Pennsylvania ( ) . Here . al~o "Jehova's ·Witnesses" and they went about from door .to· in the city of Jeannette distributing . literature aµd door S0liciting people religious books by :.the Watch Tower and pamphlets, · all published Bible ordinance Society. A )11unicipal religious · colporteurs to pay a licence tax as a· required condition the pursuit · of their activities. The. peti to tioners were convicted and fined. for violation of the· ordinance.. It was held · that the ordinance in question was invalid .under the Federal COnstitution as.. consti tuting a:denial of freedom·. of speech, press am;! religion;

and· Tract

certain

(1) 319· U.S. 624. (2) 319 U.S. 105. 7-97 S. C. India/59

.. '·

1954

The Commis sioner, Hindu Rtligious Endow ments, Madras v. Sri Lakshmindra Thirtha Swamiar ; of Sri Shirur li!utt.

Mukheljea J.

1028

SUPREME COURT REPORTS

[1954]

is

than

in a

rather

the right

in selling

held further

in a commercial

and it was that upon the facts of the case it could not be said that "Jehova's Witnesses" were engaged religious venture. Here again, it may be pointed out that a taken only a few years before in the contrary view was case of /ones v. Opelika( 1 ), and it was hel<l that a city ordinance, which required that licence be procured and taxes paid for the business of selling books and pam phlets on the streets from house to house, was applic to a member of a religious organisation who was able engaged the printed propaganda pamphlets without having complied with the provisions of the ordinance. It

any limitation whatsoever. Limitations,

to be noted that both in the American as well to freedom as in the Australian Constitutions in unrestricted terms with of religion has been declared therefore, out have been introduced by -courts of law in these coun tries on grounds of morality, order and social protection. An adjustment of demands of the the competing interests of Government and constitutional liberties is task and that is why always a delicate and a difficult we find difference of judicial opinion to such an extent in cases decided by the American courts where ques involved. Our freedom were ·religious tions the however, Constitution-makers, limitations which have been judicial in America or Australia in the Consti pronouncements tution itself and the language of articles 25 and 26 is to enable us to determine without the sufficiently clear aid of foreign authorities as to what matters e-0me within the purview of religion and what do not. As freedom of religion in our indicated, we have already to religious beliefs only; it Constitution is not confined subject to the extends restrictions which itself has laid down. therefore, a religious denomination Under article 26(b), or the organization to what rites and ·ceremonies are matter of deciding as of the essential according to the they tenets has any jurisdiction to hold and no outside authority

have embodied evolved by

to religious practices as well

complete autonomy

the Constitution

religion

enjoys

in

of

(I) 316 U.8. 584.

1954

The Commis· sioner, Hindu Religious Endow ments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt.

Muklurjea ].

S.C.R.

SUPREME COURT RFPORTS

1029

by

to be

can be

controlled

be a matter

religious observances would

of property belonging and

interefere with their decision in such matters. Of course, incurred in connection with the scale of expenses these of to the religious administration secular denomination in accordance with any law laid down by a authorities it could not be the injunction legislature; for competent the institution and its endow of any religion to destroy ments by incurring wasteful expenditure on rites and It should be noticed, however, ceremonies. that under it is the fundamental right of a religious article 26 ( d), its denomination or in accordance with law ; and the law, there properties fore, must to the religious denomination itself subject to such restrictions to impose. A law and regulations as it might choose the takes away the right of administration from which hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under clause ( d) of article 26.

the right of administration

its representative

to administer

leave

in

the specific grounds

Having thus disposed of the general contentions that were raised this appeal, we will proceed · now to that have been urged by examine the parties before us in regard to the decision of the High Court so far as it declared several sections of the new Act to be ultra vires the Constitution by reason of their conflicting with rights of the respondent. The. concluding portion of the judgment the learned Judges summed of up their decision on this point stands as follows:

the High Court where

the fundamental

in so far as

the State Legislature

"To sum up,. we hold

that the following sections they are ultra vires to this Math: and what we say will also equally relate apply to other Maths of a similar nature. The sections of the new Act are: sections 18, 20, 21, 25(4), section 26 (to the is made applicable), section 28 (though it is liable to abuse as we have already pointed out earlier in the judgment), section 29, clause (2) of section 30, sec tion 31, section 39(2), section 42;. section 53 .(beca.use courts have ample powers to meet these contingencies), section 54, clause (2) of section 55, section 56, clause (3)

innacuous,

it sounds

section

extent.

25(4)

1954

The Commis sioner, Hindu Religious Endow ments, Madras v. Sri Lakshmindta Thirtha Swamiar of Sri Shirur . ·

Mutt.

Mukheijea J.

1030 '·.

SUPREME COURT REPORTS '

.

of section 58, sections 63 to 69 in Chapter VI, clauses (2), (3) and •( 4) of· section 70,. section 76, ·section 89 and' section 99 the · Cfovernment' · virtually .complete control Maths)."

the Matadhipati and

extent it 'gives

(to the

over

right

It may be pointed out at the outset that the learned· in including sections 18,' 39(2) this list, as these ·sections are not applicable the At:t itself. This position · has not the

Judges were not and 42 in to Maths under been disputed by Mr. Somayya, who appears respondent.

for

that

income

the due

is a public

the powers of

Section 20 of the Act ·describes

the in respect · to religious endowments and Commissioner they include power · · to· pass an,y ·orders that may be · deemed necessary to ensure. that' such' endowments are properly administered and is duly their appropriated for the purposes for which "they were founded .. · Having regard to the fact that the Mathadhi~ pati occupies · the position.. of" a trustee with regard to institution, •some ·amnunt the Math, which ·administration of' control or supervision · over the . endowments. and due appropriation of their of fuhds is' 'certainly . necessary in the interest of the public arid ·we do not think that" the pr~vision of this section by itself oifends . any fundamental right of the Mahant. We do not" agree with the High Court that the result of this provision would be the position· of a servarit . .' No doubt the Q:>mmissioner is invested ' with powers io pass orders, but orders can be p~ssed .. ' 'orily for the purposes specified . ln. the section and not for interference with the rights of the Mahant as are sanctioned by usage . or for lowering his position institution; The saving as in section 91 of . the . Act makes the pro~!siol\ co;itained that the powers pos1t:Jon qmte· clear. ·An apprehension conferred · by this section· may be abused in individual cases .. rdoes not make the provision itself bad or invalid inJaW;•,11

the spiritual head of.· the

to reduce ·the Mahant . to

.L

. ..We agree, however, with the High Court in the view taken· :brit about .. section 21. This · section empowers the Commissioner antl> his. subordinate officers and also persons'~ authorised· ·by them t-0 ente,r ·the premises· af i.·:·;·_ .. 1-''!···J1,: . ~'!.)._.:,.·,..~ ):1 i:.l -i.•1.•J-, .r; '1'",";".;7 ·;,:>Jlt~!·_,

. ~:.·ti:·;· ljl ~--· .. _ .... ~ -·,

'"t~!/").i<'. _((·

·_,.i, ~

"'.•'

!~,;

;1

,.

1,;_)

1954

Tlze Commis- , sioner, Hindu Religio'us Endow .. ~ents, MadrtlJ v. Sri L"akshmindra Thirtha Swamiar of Sri Shirur ·Mutt.

Muklierjea J.

'

, .. '

'' '

S.C.R.

.

.

. .

. I . , ,

1031

. after

the deity

due· . notice

the place where

SUPREME COURT REPOR'l:;S , any religious · institution or . place . of worship ·for the .purpose of exercjsing any power conferred or any duty imposed by or under the Act. . It .is well known that there could be no such thing as an ·unregulated and unrestricted right of en.tty in a public temple or other .religious institution, for persons. who are not connected with . the spiritual . functions thereof.. It is: a , traditional custom universally observed ,not to allow. ·access to any to the partip,ilarly, . sacred parts of a temple. as "Outsider for example, is ' located. There are .. also fixed hours of worship and rest for the idol when, no disturbance. by . any member of the public .is alloweq. . Section 21,. ! it is. : to .• be noted, does,· not the right of. entry .. to the outer portion :of. the confine it does not even exclude .the inner sanctliary premises; "the Holy of Holies".-· as it.is .said, the sanctity· of .which is. zealously .preserved .. r .It clots not say that• . the· entry may be made 'to the head, of the .institution. and a.t,such , hqurs which would.notihterfere . with the. due .observance of.the rites and. ceremonies in .the institiition . . W,e think that: as ,·,the. sectibn:stands, :it interferes with ·of· the Mathadhipati and the denomination of which he is head . guaranteed under arti.cks 25. and 26 of .the, Constitution. Dur attention qas .. been drawn , in. this ,ronnection. to section 91 of the Act which, it is,. said, provides a sufli- .cient safeguard .. against_. any abuse of.power under sec tion 21. We cannot agree with this contention,. Clause the saving ... clause all (a) of section 91 excepts .. from express provisions 0f the : .4ct .. within which the: , provi . sion of section . 21 would -have t0 . be included., Clause (b) again. does not say anything about cu~om or ,usage obtaining .. in an institution and it . does not indicate· by whom aqd ,in what. manner the question of -interference with the religious . and .. spiritual functions. of the Math would . be decided . in .c~e- of any. dispute arising, regard ing ,it. In our.. opinion, section 21 has .been .. (ightly-.held to. be .invalid. · . imposes a d\ltY, upon the trustees, to· obey Section 23 issued by.tlie .. Commissioner.,;or any .all.lawful ,orders . subordinate authority under the provisions of' the Act. those No exception can be

the . . fund~mental . rights

the section if

taken

to

.

19~4

The Commis sfoner, Hindu Religious Endow ments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mut~.

Mukh<rjea J.

1032

S~PREME COURT REPORTS

[1954]

to

obey orders authority. The same

provisions of the Act, · which offend against the funda mental rights ofthe respondent, are left out of account invalid. No body can .make a grievance if he as being in · pursuance of valid is directed legal reason would, in our . It may be mentioned opinion, apply to section · 24. that sections 23 and 24 have not been specifically here mentioned the judgment of though .they have been attacked by . the learned Judges in. course. of their discussion.

in the concluding portion of

the High Court

set out above,

in

to

only

(3) and ( 4)

to chu~e ( 4) of

As regards section 25,

be invalid as infringing

it. We are u\lable, ,therefore,

the High Court l;~s taken the sect\on. If the exception preparation of registers for religious institutions 'is not wrong and does · not affect the fundamental rights. pf the Mahant, one fails to see how the direction for addition to or alteration of entries insuch reglste~s, whichdause (4) ' cont~mplates and which,,will be npcessa;y as '~ re111lt of enqumes made under dause (3), can, m any. sense, the fundam,ental be hdd rights of the Mahant. The enquiry . that ·is. contem plated by clauses is an equiry into the actual state' pf . affairs, ' :ind ~h~ whole obj,eci of' the section· is ~o 'keep an accurate . re.cord. of the particulars specified to agree with , F ?r ' ,which' provides the reasons, for annual vetification 'of the registers, ' caiu:iot be held ' to be bad. ,Acc,br<ling '

the view expressed by the learned Judges. same

to the High' Comt "section 28 .i.s itself iniiocuous. The mere . possibility of . its being . abused it to ):l~, i11,val\d'. .~s . all is" no' ground for h9lding endowed . properties .we fail tci see why the' .restrictions." placeq . by secti;in 29 ~pon aliei;iation of. endqw~d.' propfrties sJ:i?1;1id',;be con .Pro~isi,op _of ~!~use s1der~d. ,: b,a?. )n .· ou: op1m?n, t,he (2) of sect10n 29, which enables the Comm1ss1oner . to impose sanctiOI) '. 'to alie- jroperty,, )s p~rf~ctly ,re~~onable 1:1.~tiofi,, · of , .• enr!'o-yed an,d ... ',' fli~ rr?Yision.-;: of ... se~t\?.~}0(2) ~~P,ear~ .~ ~f1h iii)e obscure. Clause (1) of the· section enables somewhat

.that no except10n cap. be ta~ep. ,

.conditions when he gran.ti

ordinarily . inalienable,

sec.tion . 2(5,

. . .

· ·

are

to

·

·

.

1954

Tht Commii sioner, Hindu &ligious Endow ments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt.

Mukherjea]~

S.C.R.

SUPREME COURT REPORTS

1033

on his · right. Under ·

to

in

for

use

to in

it stapds,

the dignity

the health,

referred for

If the trustee is

unconnected· ·with

to be no reason · why

adequate provision section 70(2),

of the funds in his a trustee to incur expenditure out the charge after making· purposes for making arrangements safetv and convenience of disciples, pilgrims, etc. Clause · (2), however, says incurring expenditure under clause (1), the that trustee shall be guided by such general or special instruction ' as the Commissioner or the Area Committee might 'give in that connection. to be not fettered by such directions, possibly guided but no objection can be taken this clause; but if he is instructions, · we do think that to carry out such bound it constitutes an encroachment the Maham has large . powers of the law, . as income and the only restric disposal over the surplus that he cannot spend· anything out of it for his is tion of his personal ·But as the purposes •specified in sub-clauses (a) office. to the 'institution and (b) of section 30(1) are beneficial the authority vested there seems in the Mahant incoine for such purposes should be taken away from him and. he should be compelled tci act · in such matters under the instruc tions of the _(}overnment officers. We think that this 1s the Mahant's "restnct10n right

unrea·sonable of property which

The same reason the Act, If after · making to . in

is blended with his office. applies in our ·opinion' tci section 31 of the meaning of which also is far from clear. provision for the for the purposes referred 30(2) there is still arrangements mcntiond the trustee; · section 31 enables him a surplus kft with to spend the pwposes. specified in section 59(1) with the previous sanction of the Deputy Commissioner. One of the purposes mentioned in section 59(1) is the the religi_ous ten~nts of the institution, propagation of and. it is not understood .. why sanction of the. Deputy Commissioner the for .· the propagatio11 · of the,fdigious incorne. surplus is on_e r,>f the primary ; duties tenets of the.' order ;yhich of a Mahant to discharge. thing . that strikes . The next one is, ~hether s~nciion . i~ nece'ssary' if ' die" trustee

.should be· necessary . for . spendiiig

. ildequate . se'ction 70(2)

the surplus

in section

to spend

it for

and

on

an

1954

·71ze Commis sioner, Hindu .Religious Endow· ments, Madras v . . Sri ·Lakshmindra Thirtha Swamiar of Sri Shirur Mutt.

Muklu:rjea J.

. ·• , •. \

. ' r ,f . ·,

,·'I i · ' ' ' : ;

·

1034

SUPREME COURT REPORTS

.. .. - ,.. [1954]

; i • '

is' that

implication ' of

the other hand, , the

the surplus ' can · be spent

:wants to spend . the money for p.urposes other than. those specified in section 59(1)? If the answer. is in the nega tive, the whole objett of the. section becomes meaning less. ' . If, on the section only for the ih section 59(1) and· that too with the purposes specified it undoubt the Deputy· Commissioner, ·permission of edly places ·a'burdensome restriction upon ··the· .property sanctioned by usage -rfghts of the Mahant which are the. effeet · of impairing his ' which· would · have and dignity- and efficiency · as .. the head of the institution. We think 'that sections 30(2} ·and 31 have bee!1'rightly held to be invalid by ·the High• Court.

the contingencies that

is· intended to meet. But :·a competent

Sections 39 and 42, - as· said· already, are not appli to' Maths:• and hence ·can ·be left.· out of considera cable Section 53 has been condemned by tion. the High the ·court has ample Court · merely on . ·the· ground that this jurisdiction · to provide . f6t· that · surely · cannot section · legisla"ture from · legislating on prevent ·the· topic,' provided ·it can· do so with6ut violating any of the fundamental 'rights · guaranteed· by the· Constitu- '"tion. - We are unable to agree with the High Court on - this point. · ··There seems to be nothing' wrong or un reasonable in section · 54 of the' Act -which provides.for fixing. the. standand scale of. expenditure .•. The propo- ·sals .for • this purpose, wquld have to b_e submitted by .. the trustee; .. , they are. then to. he published and sugges the . tions in :amendment. The Commissioner. is·. to scrutinise the ·original proposals . and the. suggestions received. and . if his opinion a. modification, .of the scale .is necessary, in he has to submit -a report . to the Government, whose . decision will be final. This we consider to be quite a reasonable and salutary . provisioµ. _ Section. 55 .. deals with

. Mahant's power. over Pathakanikas ·or personal ·gifts. Ordinarily a .• Mehant has absolute. power of disposal over such .. gifts, . though if he dies·. without making any disposition, it. is reckon ed as the property of the.Math _and goes , to the succeed . ing Mahan(. The first clause . .of section, 55 Jays · down that such Pathakanikas for the

, persons .. having· interest

invited from

spent only

shall be

a

1954

The Cvmmis Sioner, Hindu Reli'giOu.s En'dow merits, Madras ' . v. ' STi Liz.kshmiiidra Thirtha Swamiar of Sr{ Shirur Mutt.

Mukherjea J.

'S.C.R.

1

',

,>

~ \

• r; _ SUPREME COURT REPORTS

. ,

~ 1

I

:

:

'

·,·· 1035

'1,:'

the

say · <that

such. the .them

.personal .. gifts .. are

institution. only ·; as ,

institution;. but . the general

· This is an unwarranted restric purposes .«)(the Math, uon on . the property . It may right of -the, Mahant. be that according , to . customs prevailing• in ·a particular institution, , regarded .. as ·itself· and • the Mahant gifts to -representative., rece-1ves of .othel'.V(ise. , rule.-is the this rule will As section SS ( 1) _does . , not is a custom of that . nature apply only when there institution, we must . say in a particular , that in this' unrestricted forih' ls" :in' ·un"re'ason the provision able · eneioachmef,lt upon. the ftindartiental tight 'of \:he Mahant. The· same' ob'jection cart be'" r~ised. agaifist clause (2). ' of. . the 'section; the Pathakanikas constitute the property ofa Mahant,' · there 'is rio · Justi fication for compelling' him . to ·keep" "accounts 'of the . expenditure of such ' peisoh~l gifts.'' As rec'eipts and said already, . if the Maha:nt dies without . di"sposing _of these personal gifts, 'they irl~y form. part .' of the assets 'of the Math, 'but thatis ''no.reason fof'restriciing" "the powers · of the' Mahan{·,. 'ov'er these gifts s·o "l!)ng' as he' is alive.

for •·if

···-··· 1

; ..

· ' " ·

1

· '· ... ',, ;,· Section 56 ha~ been rightly

;iffairs -of-

invalidat.ed. by the; High Court. It makes . provision . of, an . -.extremely .. drastic character., Power-.has been. giyen· iO the . -Commissioner to .require " the "trustee .. to-appoint,-, ,a.manager . for administration . of · the secular ·the insti~tion a!ld in case of default, . .the ·Commissioner can malq:- the appointment .. ,himself. _ .:The manager-, thus 'appoipted though- -nominally a ~er'rant of the -trustee, .-has ,,pra~ti­ caUy to do , everyth-ing accordi11g. to• the , ,directions of .It , is ;,:to . be the ·Commissioner and, his .. subordinates. that. this power- <;an' be exercised· .at. the . mere noted option . of the . Commissioner .. without· any justifying necessity. whatsoever .. and· no pre--requisites , li];;e niis rnanagement of . property ... or mal;idministration of .. trust -the trustee to ex<;rcise to· enable funds . are . : necessary such .drastic· . power., th¢. section con .It is . true. that templates the appointment of a ma11agei: . for-, adminis tration, of the. sec'ubr affairs_. of. this• ;-inst;itution. But · could be .. made . as-we .J:iave no.-.,,rigid.. demarcation already .. said between ·,the ,spiritu;il duties. of _the Mahap.t

!036

SUPREME COURT REPORTS

[1954)

1954

TheCommisr sioner, Hindu Religious Endow ments, Madra$ v. Sri Lakshmindra Thirtha. Swamiar of Sri Shirur Mutt.

Muk!urjw ].

of

in the tru;t property. The and his personal interest is that the Commissioner is effect of the section really the at liberty at any moment he chooses Mahant to administer the trust property his right if here h no negligence or maladministration on even his part. Such to the provision of article, 26( d) of the Constitution. It would reduce cripple his authority as Mahant . altogether and of an ordinary priest or paid his position servant.

restriction would be opposed

to deprive

to. that

relates

the scheme, but we think that ample

We Jinfl nothing wrong in section 58 of

the framing of to which Deputy -Commissioner. 1t is true ment officer and not , the court who to settle guards have been provided error or unjust decision sioner. , Section Commissioner against missioner and there aggrieved who with a further right of appeal to· the High Court.

the Act the scheme by the that it is a Govern is given the power safe to rectify any 'made by the Deputy Commis the ·the· order ·of the Deputy Com to a party the Commissioner

is a right of suit given

by the order of

an appeal . to

. 61 provides

the Act

for

in

is

to us

'fhe objection u;ged against

the provision of Clause to be of (3) (b). of section 58 does not appear much ·substance. The· executive officer mentioned in that clause ' could be nothing else' but a manager of the properties of the Math, . and he cam1ot possibly be em the functions of powered the M~thadhipati to exercise himself. In any eve'nt, the trustee would have h-is remedy against such ocder , ofJhc Deputy Commissioner by way of appeal to: the Commissioner and also by _way of suit in sections 61 and. 62. Section 59 simply as laid down the· appiii:ation of the cy pres provides a scheri;ie .' for doctrine in case trust fails either from '9r' by reason of subsequent events. Here the inception raised . is, . that such again order" could, the D.eputy , Colilinissioner. thl.s: objection has f)ot much substance. We think that the In. the first pla~e, the ~ruse .fup~s,c~,ii14p~ spi11t . a.re ,laid d?vv,i-\' i~,theje~ti8n itself and the 1unschct1on of the Deputy Comm1ss10ner a choice out of the several heads. is only

the cirily . COIIlplaint . that is .be , wa.de by

v~riotis. objects on which

the obiect of the

to make

1954

TM Commis sioner,. Hindu · Religious Endour ments, Madras v. Sri Lakshmindra T hirtha Swamiar of Sri Shirur Mutt.

Mukherjea ].

S.C.R.

SUPREME COURT REPORTS

1037

Further an appeal has been provided from an order of the Deputy Commissioner under this section to the Com missioner. We, therefore, cannot agree with the High Court that sections 58 and 59 of the Act are invalid.

religious

the worst' feature

to notification of

Chapter VI of. th~ Act, which contaiµs. sections 63 to 69, relates institutions. The provisions . are . ·extremely drastic in .their- character and it is that JJO ac;cess is allowed to the court to set aside · an order of notification. The Advocate-General that he for Madras frankly the legality . of these.' provisiqns. We could not support that hold, these sections should be held to be void.'

therefore; in· agreement with High· Co\irt

'stated

'of

the budget

s~dion 70 relates ' to

tq ;eligi6u~ institu tions. Objectioµ has bee.n taken only .. to .claµse (3) the Commissioner and the Area Com whiCh empowers mittee to mak:e any additions· io or alterations the is' indispensable in budget· as ·they· deem fit. A budget all public institutions and we do not think that it is per se · unreasonable' . to provide· for · the.··· budget of . a religious institution '' being prepared under fhe' supervi the Co'minissioner or the Are~ .Committee.. It sion · of is. mack . by an An;a is Committee under clause (3), clailse '(4) provides an appeal against

it · to· the E>eputy Commissioner. '·

that if the order

to be noted

in

Section · '89 provides

to comply with the p'rov!sions · of the . Act.•

for penalties foi' refosal by the If trustee the Act" are eliminated, the objectionable' J?brtions ·.· of the portion 'that Terriains 'will' be perlectly valid ~nd, for violation' of these valid 'provisions; penalties can legiti mately be, pro~lded. Section, 99 vesti an qveralt revi iri 'the Government. 'TJiis, In our opinion, sioriaJ. power to' the frus'tee~' for hi:', will' have ah' oppor is 'beneficial to' approach' ihe' Gclvtrnm~'rit' in'' case. ' df any tunity' ,by th~ Commis- i:re~iibri!y, er;or or ·c,~~ssion ina?e . · sioner or any ·other subordm:ite officer. . . ;. "

' " ' ' "' :'' ,, . .. .

') '' .,

T~+~ 9n1y o\her . pfiint tha~ ,req~~es . c011sider~tion is • .o~. section .,76, · .qf ,t~~, Act , , . "

d).e ,c;onstitutio11al,,')'.~.\ic\ity 1 which,JUJlS % follow"": (1)

Government and their officers, every tion shall, from

In respect of the services· ren<lerefil -by.the religious institu the income derived by it, pay to the

"76.

,,.,

., ,

....

' .

.' 1:;

. ·,

. '

,'

'

'

'

1038

!

' ~· ' _.., ''; /. . SUPREME COURT REPORTS

. ! ,' :

i!'

[1954]

1954

TheCommis- . sioner, Hindu ·'Religious Endow ments, Madras v. ·Sri Lakshminrlra Thirtha Swamiar of Sri Shirur Mutt.

lY!ukherjea J.

''Goverument '.:~~n~ually .five. per ceutum of its income as , may be prescribed.

s11ch. contribution· not exceeding

0

(2), Every religious

institution, the annual

income .of .,vhich for.thefasli. year. -immediately· preceding as .calculated for .· the. purposes . of ·the levy of contribution than one thousand under· s11b-section (I), rupees, "shall,, pay for to · meetii;ig . the.cost of auditing · its accounts, such further sum , .not exceeding .. one, and, a half. per· centum of its income. as the Commission\:t.~m.ay,.determine.

is . not; less the Government annually,

~. 1·,

.Commissioner;

·-> · · .( 4), 'the .. Government .shall. pay

(3) The annual · payments •.:referred . to in sub-sec tions (1) and (2).shal!.be' made; •rtotwithstanding any fa. any •scheme,.-sett!ed ,thiug t9._ .. th;e contrary: .contained or dee111<;d ,to be. settled· unc;lei: this Act•for .the religious .~~stitutiq~ conc;erned., ,,. ,:~ ... i~ ,··~ " the salaries, allow : · ances, . pensions' and •. ·other. ''beneficial .' remuneration of •Deputy .. ·, Commissioners, ·:Assistant .the Commissioners <and· other· •·officers ··imd" servants {other .. institutions) . than , executive• officers . oL :·.·religious. employed· for the. ·purposes of this ·Act· and the other -expenses. ' incurred. : for · .such •purposes, · including th~ .expenses of Area Committees. and the cost of auditing the acwurits, •of· religious'. .institutions," Thus the section. authorises the .levy

-of · an . annual .. contribution ·maximum · of. which is fixed at 5 per cent. of the inl:ome: derived by is· to frame rules for the pur , them. · The Government poses of fixing rates within·, the:' permissibre maximums ·that•. the levy is. in .-and •.the section ... expressly;. ··.states ·respect . of · the :services the Government . and . its officers. The validity -of .the provision · has been .attacked on a.:two-fold .. ground:· tl1e . first is, that the .. contribution 1s really a . tax . and as such it was beyond to the legislative competence . , eqaq .. such . pr9yisi9n. The otl;te~ is, that the. cqntribu ,. tion being a: ta/!''. pr impmitioq, .th,e .PFOceed~ ~f .which for . the maintenance of a . comes the Constitution

are specifically. appropriated particular religion or religiol!s denomination, it 'within · thi(mischid bf article · 27. of :·afid··is.hence·,·vord; .. , ·· .·.r~. · .. <· .n

i>n all religious i institutioris,r the

the State Legislature

rendered by

· ':_ 1 ·: t "»1:

·.-·:·:·.· ·.

;-·· r•,

·•·

.... ,.

.of

·i:,;.

:.ri

· I · ) ·

.-,_i.

i(

-

1954

The Commis sioner, Hindu Religious Endow~ ments, Madras "· Sri Lakshmindra T hirtha Swamiar. .of-Sri Shirur Mutt.

Mukherjea ].

S.C.R.

SUPREME COURT RF:C . _,,s

1039

I ' 1,- is concerned, in

it

So far as the first ground legislation the

is not the present· ·case· is disputed that covered·· by entries·. 10 and 28 of List III iir ·Schedule VII of the Constitution. · If the cbntributioh· payable under section 76 of the Act · is ·a "'fee'', it may· · come under entry 47 .of the Concurrent List which· deals with "fees" that in respect of any of the matters included in list. .On· the other hand, if. it . is a tax, as this ·particular· tax has not been · provided · for in any specific entry in the ·three · lists, it· could come only · under any of entry 97 of List I or article . 248 ( 1) of the· Constitution. the Union Legislature alone" would and be to legislate .upon it. On behalf 'of the the contention raised · is that · the contribution appellant,- ·Attorney levied is a fee ·. and not · tax and the learned General, who·' appeared India as · as well as· in the other connected intervener in to support · this appeals,. made · •a' strenuous .The point is certainly not free from doubt position. and requires careful consid~ration. ·

in either view competent

the Union

·attempt

·this

for.

·of

The learned Attorney-General ·has argued in the first' that our Constitution · makes a clear distinction place taxes· and· Jees. •It is true, as he -has -pointed between out, that there . are: a number of entries in List I of the Seventh Schedule which ·relate to taxes and· duties of the 'last. entry; namely entry 96, various sorts; whereas in respect .. of .any-.of the matters dealt speaks of "fees"· with: in the list. Exactly the. same is with ·regard· 'to to. 62 .in Lisr II all of which relate ·to taxes entries 46 .deals only with "fees" and here again ' the last entry leviable . in respect. of . the different matters specified in the list. · It appears· that articles 110 and 119 . of· the Constitution which deal · with "Money Bills" . lay down that a bill will not · be deemed to be a "Money expressly Bill" ·by reason .. only that it provides for the imposition of ,fines ...... or for the demand ·or payment of ·fees for licences or fees . for .. services, rendered, whereas· a bill dealing with ·imposition : or regulation of a ·tax·. will always . be. a rMoney . ' Bill .. · Article 277 ·also mentions taxes, cesses and fees separately:• clt is not dear,· how ever,. whether the word "tax" as used in article 265 has not been used in the wider sense as including. all· orher

~"

.,. . . , \ ·~·.··

. ,..

,,,,,'

,, ;,.,

1954

TheCommisM siomr, Hindu Religious Endow~ ments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt.

MukherJea J.

1040

SUPREME COURT REPORTS

[1954]

and

fees;

though

that at

to us that

least impositions like cesses and the implication of clause (28) of article 366 seems to be which defines taxation as including the imposition of a.ny . tax or impost, whether general, local or special. It seems levying of fees is only a parti cular form of the exercise of the taxing power of the State, our Constitution has placed fees under a separate category for purposes of legislation and at the end of a given each one of the three legislative lists, it has power to the particular legislate on the imposition of fees to every one of the items dealt with in the list itself. Some idea as to what fees are may be gathered from clause (2) of articles llO and to above which speak of fees for licences 119 referred and for services rendered. The question for our consideration the indicia or special is, what are characteristics that distinguish a fee from a tax proper? On this point we have been referred to several authori· the different ties by the learned counsel appearing for parties including opinions of recognised treatises on public finance.

expressed by writers

legislature

in respect

really

to

'

to

A neat definition of

the learned Chief Justice, "is a

,what "tax" means has been given by Latham C. J. of the High Court of Australia in Matthews v. Chicory Marketing Board('). "A tax", com according pulsory exaction of money by public authority for public purposes enforceable by law and is not payment for services rendered". This definition brings out, in the essential characteristics of a tax as our opinion, from other forms of imposition which, in distinguished It is said that a general sense, are the essence of taxation to say, it is compulsion, that is tax the is imposed under statutory power without payer's consent and the payment is enforced by law (' ). The second characteristic of tax is that it is an imposi tion made for pµblic purpose without reference to any special benefit to be conferred on .the payer of the tax. This is expressed by saying that the levy of taxed is fot the purposes of general revenue, which when collected forms part of the public revenues of the State. As the

included within

iL

(1) 6o C.L.R. 263, 276. (2) Vide Lowd Mai;iand Dairy v. Crystal Dairy.Ltd., [1933] A .. d . . ·a.

1954

TheCommis- sioner, Hindu R,Jigious :Endow· ments, Madras v. Sri Lakshmindra T hirtha Swamiar of Sri Shirur Mutt

Muk"-erfea ].

•

S.C.R.

SUPREME COURT REPORTS

1041

•

to confer any special benefit tax is not object of a upon any particular individual, there is, as it is said, no element of quid pro quo between the taxpayer and the public authority ( 1 ) • Another feature of the taxation the is that quantum of imposition taxpayer depends generally upon his capacity to pay.

the common burden,

it is a part of

upon

the

as

to

rendered

is supposed the Government the cases

Coming now to fees, a 'fee' is generally defined to be individuals fee to be based on the expenses incurred though in in rendering the service, assessed. arbitrarily the are uniform and no account is the varying abilities of different recipients to the general there may be various kinds of formulate a definition that

a charge for a special service by some governmental agency. The amount of levied by many Ordinarily, taken of pay('). These are undoubtedly some of characteristics, but as fees, it · is not possible to would be applicable to all cases.

costs

fees

are

As

regards

is something voluntary which to pay if he wants certain services from

the distini::tion between a tax and a fee, it is argued in the first place on behalf of the respond a person ent that a fee the has got Government; but there is no obligation on his part to seek such services and if he does not want the services, the obligation. The example given is oi he can avoid a licence fee. that is entirely If a man wants a licence his own choice ·and then only he has to pay the fees, but not otherwise. We think that a careful examina element of compulsion or tion will reveal coerciveness is present in all kinds of imposition, though in different degrees and that it is not total! y absent in fees. This, therefore, cannot be made the sole or even a material criterion for distinguishing a tax from fees. It is difficult, we think, to conceive of a tax except, it be something the incidence of which falls on all persons within a State. The house tax has to be paid only by those who own houses, the land tax by those who possess lands, municipal .taxes or rates fall on will those who have properties within a

like a poll tax,

that

the

(r) See ·Findlay Shirras on '•Sc:iehce of Public Finance", Vol. I, p. :203. (2) Vide Lutz on "Pµblic Finance" p. !2I5.

1954

The Commis sioner, Hindu Religioti~ Endow ments, Madras v. Sri Lakshmindra Thirtha Swamiar of-Sri Shirur ·Mutt.

Mukherjea J.

•

•

•

1042

.. '

.

.

to' pay taxes

that payment

SUPREME COURT REPORTS ,. . ,;·-·:·

[1954] ~' . . . municipality. Persons, who do not have houses, lands or properties within municipalities, would not have to pay these taxes, but nevertheless · these impositions come within' ·the 'Category· of ti:!.'< es· 1 and" nobody cart say that it is a choice of'these" people to own" lands · or-houses or specified kinds' of properties, ·so that there is no com :it· all. Compulsion lies pulsion orr · them in the fact is ·enforceable by law against a 'man in spite of his unwillingness 'or want of consent; and this element. is 'present' in 'ta:ie5 . as well' as in fees. Of course in· some cases whether" a man would come Within', , . the 'category· · of a .-serviCe receiver. may be a matter of . his choice, ' but that . by'' itself would . not constitute a' major test which can the this species .of imposition. The distinction criterion of ill the fact ' that betWeeri a tax and a fee ,lies'' primarily a tax .is levied as a part of 'a common burden, while a is a payment· for 'a special benefit or privilege. Fees fee confer a special capacity, although the. special advan tage, as for example the case of 'registration fees for in the lieel)ces, . is secondary. to documents "'or 'marrfage primary nibtive of regulation in the ·public iriterest(' ). Pµblic to be at ' the basis of all imposi tions, but in a fee it is some !;pecial benefit which the it' is the special individual receives.· · · As Seligman says, the 'reason ben'efir acctuirig · to the individual which for payment 'in the case of fees; the case of a tax, the particular advantage an if" it incidental· result of State· action().

'in exists at all ,

interest · seems

' be taken:

as

is

is

rendered,

for services

'· If, as 'we 'hold, a fee is regarded as a sort of ret:Urn or it· is absolutely consideration 'the ' levy of fees should, on the ·face of necessary 'that the legislative provision, be co-related the expenses to incurred by Governrrtent 1in rendering the services. As. indicated. in artide 110 ·<of the Constit:Utibn, ordinarily there ·are classes'· •of cases where Government two 'fees' · uport · persorts~ In the first class of cases,. imposes Government simply grants a' permission cir privilege to a· person ·to' do 'scimethlng,' ·which otherwise that person 'fees either would '"not' be competent to· do and extracts (1) 'V.iae1FlnC:Ua)r Sliirras on ''StienCe'of Public ·Finance" Vol. I, p. 202. {2) Vide·Sefigro:ah'S'Es'says 'oil Taxafit>rt;·p. 408. .. '

: : ' ·

"

~

'

!

'l

-· .,,_

,, .

1954

'

The Commis. sioner, l/indu 1 Religious EndOlll ments, Madras v • Sri Lakshmindra 'Thirtha Swamiar of SrilShirur Mutt. - i Mukhn)eaJ,

•

•

S.C.R.

SUPREME COURT REPORTS

1043

the heavy or moderate from that person in return for that is conferred. A most common illustration privilege c of this type of cases is furnished by the licence fees fpr motor vehicles. Here the costs incurred by the Govern i=nt in maintaining an office or bureau for the granting of licences may be very small and the amount of imposi is based really not upon the costs incur tion that is levied the benefit that the red by the Government to all individual receives. the writers on public finance, is predominant(1), and paid by licence holders goes for t'1e upkeep of roads and other matters .. of general public lJ' .. 'Y, the licence fee cannot but b~ regarded 'as a tax.

In such cases, according tlie

tax element

the money

but upon

if

is taken as the return for If the money

In the other class ·of cases, the Government does the some po~~tive work for the benefit of persons and money the work done or thus paid is set apart services· rendered. the performance of and appropriated specifically such work and is not merged in the public revenues for the benefit of the general public, it could be counted as fees and not a tax. There is really no generic difference the tax and fees and as said by Seligman, the between in taxing power of a State may manifest three special assess different ments, fees and taxes ( 2

forms known ).

respectively as

itself

for

in

the legislative

lists as regards

a uistinction between a tax and a fee and while are various entri ~s to various forrr. of taxes, there of each one c' could be levied included in it. The implication seems ha>1e special reference taken -in respect to any of these matters.

Our Constitution has, for legislative purposes, made there lists with regard is an entry at the end the three ·which in respect of any of the matters that is that fees to governmental action under- · Section 76 of the Madras Act speaks definitely of the to services it has the appear that religious institutions do them and it to

in respect contribution being rendered by, the Government; so far ance of . fees. not want : hese services

to be rendered

levied

to be

It is

true

fees

the

(1) Vide Sc'igrpan's Essays on~Taxation, p. 409. (2)"lbid., p 406. Q-~7 S,Q, Indi~[53

•

I

•

1954

The Commis sioner, Hindu Religious Endow ments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt.

Mukher}ta J.

1044

SUPREME COURT REPORTS

[1954]

the

that

people,

income

is supposed

these services.

it cannot be said

be noticed, however,

religious institutions, which come under

may be that they do not consider the State interference to be a benefit at all. We agree, however, with the learned Attorney-General in the present day con cept of a State, that services could be rendered by the State only at the request of those who If in require the larger interest of the public, a State considers it desirable that some special the people service should be done for certain must accept these services, whether willing or not ('). It may that the contribution that has been levied under section 76 of the Act has been to depend upon the capacity of the payer and made not upon the quantum of benefit that to institution. be conferred on any particular Further the lower the income group and have less than Rs. 1,000 the to pay annually, are excluded from the liability additional charges under clause (2) of section. the These are undoubtedly some of the characteristics of a 'tax' and to income-tax. But fact which negatives the theory of fees in the present case is that the money raised by levy of the contribution is, not ear-marked or the Govern specified ment has to incur in performing the services. All the collections go the State and all th(· expenses have to be met not out of these collections but out of the general revenues by a proper method of is done in case of other Government expenses. That itself might not be in total absence of conclusive, but there this case the any co-relation between the amount raised hy contribution Government and under in these circum stances the theory of a return or counter-payment or quid pro quo cannot have any possible application to this case. the High Court that the contribution levied under was right in holding section 76 is a tax and not a fee and consequently it was beyond the power of the State Legislature to enact this provision.

is the expenses incurred bv

the provision of section 76 and

the consolidated fund of

bears a close analogy

.appropriation as

In our opinion,

the material

for defraying

the expenses

imposition

therefore,

that

in

to

(t) Vide Findlay Shirras on "Science of public Financ.-;" Vol. f. p. 202.

)954

The Commis sioiier~ Hiridu ReligiOUs Endow ments, M ddias v. Sri Lakshmindra Thiiilia Swa'niiar of Sri ShirUr Mutt.

J{ukherjea J.

'

S.C.R.

SUPREME COURT REPORTS

1045

hardly

requires

to groups,

religion underlying

all. What is forbidden by the article

In view of our decision on this point, the' other consideration. We will ground indicate, however, very briefly our opinion on the second point raised. The first contention, which has been raised by Mr. Nambiar in reference to article 27 of the Constitution is that the word "taxes", as used is not confined . to taxes proper' but is inclusive therein, of_ all other impositions like ceses, fees,· etc. We do to decide this point in the present not think it necessary case, for in our opinion on the facts of the present case, is a tax, does not come it the Imposition, although the purview of the latter part of the article within at is the specific the proceeds of any tax in payment appropriation of for the promotion or maintenance of any of expenses or particular religious denomination. The this provision is obvious. Ours reason being a secular State there being freedom of and religion . guaranteed by the Constitution, both to indivi duals and policy of the Constitution to pay out of public funds any money for the promotion or maintenance of any particular religion or religious denomination. But . the object of the contribution under section 76 of the Madras Act is not the fostering or preservation of the Hindu religion or it. The purpose is to see any denomination within institutions, wherever that they trusts and secular are properly administered. exist, It administration of the the legislature seeks to control and the object, as enunciated in the Act, is to ensure that the endowments attached institutions are properly administered to the religious income is duly appropriated for the purposes their and for which is- no they were founded or exist. There question of favouring any particular religion or religious denomination in such cases. Jn our opinion, article 27 to the facts of the of the Constitution is not attracted present that in our ,The opinion sections 21, 30(2), 31, 55, 56 and 63 to 69 are the invalid as conflicting with the fundamental rights of the respond in question and ent as Mathadhipati of

only sections which should be declared

institutions

the Math

is against

therefore,

religious

religious

result,

is a

case.

that

the

it

is

•

•

1046

SUPREME COURT REPORTS

[1954]

1954

The Commis· siontr, Hindu Reli'gious Endow· rnents, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt.

is void as beyond

section 76 ( 1) the legislative com petence of the Madras. State Legislature. The rest of the Act is to be regarded as. valid. The decision of the the High Court will be modified judgment of the High Court is affirmed on its merits to the the appeal will respondent.

to this extent, but as

dismissed with costs

stand

Appeal dismissed.

!954

March 16.

MAHANT SRI JAGANNATH RAMANUJ DAS AND ANOTHER

v.

THE STATE OF ORISSA AND ANOTHER. [MEHR CHAND MAHAJAN C. J., MuKHERJEA S. R. DAs, VIVIAN BosE, and GHULAM HAsAN JJ.]

Constitution of India, arts. 19(1)(1), 25, 26, 27-0rissa Hindtt Religious Endowments Act, 1939, as amended by Amending Act II of to s. 46-Whether ultra vires 1952, ss. 38 and 39 and proviso the Constitution-Section 49 of the Act-Whether ultra vires art. 27.

Held, that ss. 38 and 39 and the proviso to s. 46 of the Orissa Hindu Religious. Endowments Act, 1939 the Amending Act II of 1952 arc ultra vim arts. 19(1)(£), 25 and 26 of the Constitution.

as amended

by

The annual contribution provided in s. 49 of the Act is in the nature of a fee and not a tax and therefore \Vithin the competence of the Provincial Legislature to enact such a provision. Further an imposition like this is not hit by art. 27 of the Consti· tution because the object of the contribution under s. 49 is not the fostering or preservation of the Hindu religion or of any denomi, nation within it but the proper administration of religious trusl; and institutions wherever they exist.

it was

Civil ,Appeal No. 38 of 1953 referred to. OruGINAL Under article 32 of

JuRISDICTION : Petition No. 405 of 1953, the Constitution of India for

tl~e enforcement of Fundamental Rights

APPELLATE

JuR1so1cT10N : Case No. 1 of 1950.

and