Appeal dismissed v. Rao Manohcr

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 Maths situated at Udipi in the district of Souh Kanara to have been founded by Shri are reputed 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as Shri Krishna Devara Math, also established by Madhwacharya which is supposed to contain an image of God Krishna originally made by Arjun and miraculously obtained from a vessel wrecked at the coast of Tulava.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 and its affairs arc the other eight Maths by the superiors of managed by tbe Swami of each of turns and 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 is the occasion of a great festival, Shri Krishna Math concourse af a vast 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 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 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 action that time, the direction of 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 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 to manage the Swami the institution. The petitioners' case is that affairs of the Board was 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 . 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 the said agent from interfer an injunction ing with the affairs of the Math under colour of the authority of for recovery of the institution restraining executed 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] the very this suit it appears, .The Board, 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 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 sent a reply on 21st October, 1950, stating subject-matter in the original suit filed by him and as the matter was sub j~dice, the enquiry should be put off. A copy in that suit was also sent along with of the plaint filed 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 it had reason to of the said Math were the endowments believe that a scheme should be framed being mismanaged and the administration of its affairs. The notice was the Swami and the 8th of served af!ixture on December, 1950, was fixed the date of enquiry. On 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 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 1951, to send satisfied the final the Math. It was alleged to the Board, which 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 interests of proper administration of 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 anses, · 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 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 law regulating the framing of a scheme interfering with the management of the Math 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. provisions of the Act were discriminatory in character 15 of Constitution. As has been stated already, after the petitioner was allowed to New Act came into force, the attack was now directed amend his petition and against the New Act 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 it as well as on its constitutional questions the merits, it was held that in the circum merits. On the Board was a the case 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 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 tution. the result, In 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 the High Court under article 132(1) of the Constitution. granted by a certificate the rule 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 that application was not pressed 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 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 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 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 heads by the learned counsel on both sides, it may be 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. The object of the administration and the legislation, as indicated preamble, is to amend and consolidate the law relating governance of Hindu 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 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 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 in charge of a Deputy Commissioner, placed the Commissioner · can the powers of 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 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 deemed necessary to ensure that such endowments are properly administered and their income is duly appro priated for for which they were founded the Commissioner, the 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 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 that although 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 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 the various objects institution. The proposals are to be published and after rece1vmg suggestions, if any, 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 "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 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 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 application of the "cy pres" doctrine when the specific paid out of 59 makes provision the secular affairs of the that a scheme settled section 58, 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} 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 be notified in down in this chapter. Such notification 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 ing 5 per cent. of their income on account of services rendered to them by the Government 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 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 examine the other subordinate authorities 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 respondent could be The learned Judges of the High Court have taken the view that the as Mathadhipati has institution and its 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 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 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 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, 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 those provisions of the 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 examine that have learned Attorney-General, who raised intervener · appeared for this and other connected the questions raised are, whether these articles of the Constitution are at all 'lvailable the present to the respondent 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 the High Court has held first of all the general contentions to discuss 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 is, whether respondent as Mathadhipati has a right to property in endowments which would enable him to claim protection of is also formulat as to whether this article deals with concrete rights 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 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] 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 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 kind of secular activity which may be connected some way with religion but doe& not form an essential 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, It to say As regards the property rights of a Mathadhipati. 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 (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 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 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 is appurtenant is no reason why proprietary (f) of .that 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] 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 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 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 Matha<lhipati down the level of a servan~ under a State department. from this standpoint that the reasonableness of the restrictions should be judged. religious and try the Math instructions It In A point was the respondent that as article 19(1) (f) deals only with to any particular property, suggested by the learned Attorney General 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. 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, 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 raised to get an authoritative pronouncement upon it it would not be proper 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 Justice as mentioned above and he only by the court. 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 secures subject to every person, individuals only or We now come to article 25 which, as its language to public indicates, 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 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 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] It 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 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 by a distinctive name,-in many cases founder,-and has a common faith 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 the trustees and the by Madhwacharya himself and beneficiaries of these Maths profess to be followers of 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 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 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 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 such property own property and accordance with law. 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 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) the article ·applies. What then are matters of reli 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 impose of reverence for His Being ¥id character and of ooedience to His wi!I. It is often confounded with cultus of fOrm or worship 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 is certain! y the term that religion (1) Vide Da11is v. Benso,,, 133 U.S. at 34Q. 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 rituals and doctrine or belief. A religion may not only lay down a code of ethical rules observances, ceremonies might prescribe and modes of worship which are regarded as integral parts of religion, these forms and observances might extend even to matters of food and dress. 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 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 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. as relevant the exercise of The section refers 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 liberty of opinion. It beyond protecting protects also acts done in pursuance of religious belief as part of religion." . These observations apply 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 restrict an economic, secular activities which may be associated with gions practice and there is a further the State can State by. sub-clause (b) under which the right of financial, right given to political (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 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, In cannot, we 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 texts or oblations these would be regard ed as parts of religion and 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 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 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 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 the king or other constituted oath of allegiance throughout Australia, U.S.A. their political in the supreme authority of such, 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] justified and taken against the National Security Regulations of 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 Commonwealth and steps were the State. 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 infringed by National Security Regulations('). These were un doubtedly religious belief entertained by a particular community. In such cases, as Chief Justice Latham pointed out, the provision for protection absolute interpreted and applied 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 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 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 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" 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'. 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 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 Education v: Barnett'e( 1 ). 'There it was held overruling the earlier decision referred ·to · above' that the ' actioh 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 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 ·· • · ·' '· ' ~ ' 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 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 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] 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 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, 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 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), organization to what rites and ·ceremonies are matter of deciding as of the essential according to the 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 (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 to be can be controlled be a matter religious observances would of property belonging interefere with their decision in such matters. Of course, incurred in connection with the scale of expenses 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), 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 takes away the right of administration from 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 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 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 are ultra vires to this Math: and what we say will also equally relate 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, 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 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 Judges were not and 42 in to Maths under been disputed by Mr. Somayya, who appears respondent. income the due is a public the powers of Section 20 of the Act ·describes in respect · to religious endowments and Commissioner include power · · to· pass an,y ·orders that may be · deemed necessary to ensure. that' such' endowments are properly administered and is duly 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 institution, •some ·amnunt the Math, which ·administration of' control or supervision · over the . endowments. and due appropriation of their 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 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 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 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. No exception can be the . . fund~mental . rights the section if . 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] obey orders authority. The same provisions of the Act, · which offend against the 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 reason would, in our . It may be mentioned opinion, apply to section · 24. that sections 23 and 24 have not been specifically mentioned the judgment 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, (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 , F ?r ' ,which' provides reasons, for annual vetification 'of the registers, ' caiu:iot be held ' to be bad. ,Acc, br<ling ' the view expressed by the learned Judges. 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, . . . · · · · . 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 it stapds, the dignity the health, referred 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 charge after making· purposes for making arrangements safetv and convenience of disciples, pilgrims, etc. Clause · (2), however, says incurring expenditure under clause (1), the 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 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 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 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 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 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 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 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 Section 53 has been condemned by tion. the High the ·court has ample Court · merely on . ·the· ground that 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 . tions :amendment. The Commissioner. is·. to scrutinise ·original proposals . and the. suggestions received. and . if his opinion a. modification, .of the scale .is necessary, 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,:' say · <that such. .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 -representative., rece-1ves .othel'.V(ise. , rule.-is this rule will As section SS ( 1) _does . , not is a custom of that . nature apply only when 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 .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 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 ]. in the tru;t property. The and his personal interest is that the Commissioner is effect of the section really at liberty at any moment he chooses Mahant to administer the trust property his right if here h no negligence or maladministration on 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 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 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 to rectify any 'made by the Deputy Commis ·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 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 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 order" could, the D.eputy , Colilinissioner. thl.s: objection has f)ot much substance. We think that 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 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 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 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 Committee under clause (3), clailse '(4) provides an appeal against it · to· the E>eputy Commissioner. '· that if the order to be noted 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 · 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 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, So far as the first ground legislation 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" 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 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 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] fees; though that at to us that 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 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 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 recognised treatises on public finance. expressed by writers legislature in respect really ' 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", according pulsory exaction of money by public authority public purposes enforceable by law and is not payment for services rendered". This definition brings out, 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 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 is that quantum of imposition taxpayer depends generally upon his capacity to pay. the common burden, it is a part of rendered is supposed the Government Coming now to fees, a 'fee' is generally defined to be individuals to be based on the expenses incurred though in in rendering the service, assessed. arbitrarily 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 Ordinarily, pay('). These are undoubtedly some of characteristics, but as fees, it · is not possible to would be applicable to all cases. 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 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 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, 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 those who have properties within a like a poll tax, (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 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 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 confer a special capacity, although the. special advan tage, as for example the case of 'registration fees for 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 if" it incidental· result of State· action(). 'in exists at all , interest · seems ' be taken: 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 incurred by Governrrtent 1in rendering the services. As. indicated. in artide 110 ·<of the Constit:Utibn, ordinarily there ·are classes'· •of cases where Government 'fees' · uport · persorts~ In the first class of cases,. imposes Government simply grants a' permission cir privilege 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 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 that is levied the benefit that the red by the Government to all individual receives. the writers on public finance, 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 tax element the money but upon is taken as the return for If the money In the other class ·of cases, the Government does some po~~tive work for the benefit of persons and 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 taxing power of a State may manifest special assess different ments, fees and taxes ( 2 forms known ). respectively as itself 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 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 services it has the appear that religious institutions do them and it 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 (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] 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 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 not upon the quantum of benefit that institution. be conferred on any particular Further the income group and have less than Rs. 1,000 to pay annually, are excluded from the liability additional charges under clause (2) of section. These are undoubtedly some of the characteristics of a 'tax' and 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 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 total absence of conclusive, but this case any co-relation between the amount raised hy contribution Government and 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 was beyond the power of the State Legislature to enact this provision. 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, (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 the Imposition, although the purview of the latter part of the article within is the specific the proceeds of any tax in payment appropriation of for the promotion or maintenance of any of expenses particular religious denomination. The this provision is obvious. Ours reason being a secular State there being freedom of 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 religious denomination. But . the object of 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 trusts and secular are properly administered. exist, It administration of 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 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 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. • • 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 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 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 Amending Act II of 1952 arc ultra vim arts. 19(1)(£), 25 and 26 of the Constitution. as amended 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.