16 April 1954
Supreme Court


Case number: C.A. No.-000038-000038 / 1953
Diary number: 1387 / 1953






DATE OF JUDGMENT: 16/04/1954


CITATION:  1954 AIR  282            1954 SCR 1005  CITATOR INFO :  R          1954 SC 388  (9,21)  RF         1954 SC 400  (4)  F          1955 SC 493  (4,5)  RF         1956 SC 432  (5,12)  RF         1957 SC 645  (4)  R          1957 SC 846  (13)  R          1958 SC 255  (16,27,30)  R          1959 SC 860  (7)  F          1959 SC 942  (12,13,14)  F          1961 SC 284  (6)  R          1961 SC 459  (10,42)  R          1961 SC1402  (33)  R          1962 SC 853  (8,18,22,34)  RF         1962 SC1371  (37,78)  D          1963 SC 540  (7)  R          1963 SC 864  (26)  R          1963 SC 966  (19)  RF         1963 SC1638  (45,47,48,56,62,74)  R          1965 SC1107  (14,48,50)  R          1965 SC1874  (28)  R          1966 SC1603  (7)  R          1968 SC1119  (6)  R          1968 SC1408  (7)  R          1970 SC 181  (5,9,10)  R          1970 SC 564  (176)  R          1970 SC1114  (1)  E          1971 SC1182  (4,14)  F          1971 SC1691  (8)  RF         1971 SC1737  (17)  RF         1972 SC 845  (5)  R          1972 SC1586  (12)  RF         1973 SC 724  (33,34,43,44)  RF         1974 SC2098  (28)  R          1975 SC 706  (20,40)  R          1975 SC 846  (14)  R          1975 SC1121  (44,56)  MV         1975 SC1146  (62)  F          1975 SC2037  (19)  R          1978 SC1393  (9)  E          1980 SC   1  (3,12,13)



R          1980 SC1008  (8,9,10,11,22)  RF         1981 SC1863  (24,29)  D          1983 SC   1  (78,92,94)  R          1983 SC 617  (4)  R          1983 SC1246  (15,26,30,31)  R          1984 SC  51  (8A,9,10)  R          1985 SC 218  (7)  R          1986 SC 726  (7,10)  F          1986 SC1930  (19)  RF         1986 SC2094  (16,17)  R          1987 SC 748  (19)  RF         1989 SC 100  (14,17,18)  RF         1989 SC 317  (34)  RF         1992 SC1256  (13)  RF         1992 SC1383  (14)

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

HEADNOTE:    Held, that ss. 21, 30(2), 31, 55, 56 and 63 to 69 of  the Madras  Hindu Religious and Charitable Endowments Act,  1951 (Madras Act XIX of 1951) are ultra vires arts. 19(1)(f),  25 and 26 of the Constitution of India.   Section 76(1) of the Act is void as the provision relating to  the payment of annual contribution contained in it is  a tax  and  not  a fee and so it was  beyond  the  legislative competence  of the Madras State Legislature to enact such  a provision.    That  on  the facts of the present  case  the  imposition under  a. 76(1) of the Act, although it is a tax,  does  not come within the latter part of art. 27 because the object of the  contribution under the section is not the fostering  or preservation of the Hindu religion or any denomination under it  but  the proper administration of religious  trusts  and institutions wherever they exist. 130 1006     The  word " property " as used in art. 19(1)(f)  of  the Constitution should be given a liberal and wide  connotation and  should  be  extended to all  well-recognized  types  of interest  which  have  the insignia  or  characteristics  of proprietary right.     The  ingredients of both office and property, of  duties and personal interest are blended together in the  rights-of a Mahant and the Mahant has the right to enjoy this property or beneficial interest so long as he is entitled to hold his office.  Therefore he is entitled to claim the protection of art. 19(1)(f).   A  tax  is  a  compulsory  exaction  of  money  by  public authority for public purposes enforceable by law and is  not payment for services rendered.   It  is not possible to formulate a definition of fee  that can  apply to all cases as there are various kinds of  fees. But a fee may generally be defined as a charge for a special service rendered to individuals by some governmental agency. The  amount  of fee levied is supposed to be  based  on  the



expenses  incurred  by  the  Government  in  rendering   the service, though in many cases such expenses are  arbitrarily assessed.     The  distinction between a tax and a fee lies  primarily in the fact that a tax is levied as part of a common burden, while  a  fee  is  a  payment  for  a  special  benefit   or privilege." Scope of arts. 25 and 26 discussed.   Meaning  of  the  term  "  Mathadhipati  "  and   religion explained.     Vidya  Varuthi  v. Balusami (48 I.A.  302),  Monahar  v. Bhupendra (60 Cal. 452), Ganesh v. Lal Behary (63 I.A. 448), Bhabatarini v. Ashdlata (70 I.A. 57), Angurbala v. Debabrata ([1951]  S.C.R. 1125), Davis v. Benson,(133 U.S.  333),  The State of West Bengal v. Subodh Gopal Bose (civil Appeal  No. 107  of  1952  decided  by the Supreme  Court  on  the  17th December,  1953), Adelaide Company v. The  Commonwealth  (67 C.L.R.  116,  127), Minersville School  District,  Board  of Education  etc.  v. Gobitis (310 U.S.  586),  West  Virginia State Board of Education v. Barnette (319 U.S. 624), Murdock v. Penissyl-vania (319 U.S. 105), Tones v. Opelika (316 U.S. 584),  Matthew’s V. Chicory Marketing Board (60 C.L.R.  263, 276),  Lower  Mainland Dairy v. Crystal Dairy  Ltd.  ([1933] A.C. 168) referred to.   (Findlay Shirras on Science of Public Finance, Vol. I.  p. 203).

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 38 of 1953.     Appeal under article 132(1) of the Constitution of India from  the Judgment and Order dated the 13th December,  1951, of   the  High  Court  of  Judicature,  Madras,   in   Civil Miscellaneous Petition No. 2591 of 1951. 1007    V.K.T.  Chari, Advocate-General of Madras (B.   Ganapathy Iyer, with him) for the appellant.    B.     Somayya  and C.R. Pattabhi Raman (T.  Krishna  Rao and M.S..K. Sastri, with them) for the respondent.   T. N.  Subramania  Iyer, Advocate-General  of  Travancore- Cochin (T.  R. Balakrishna Iyer and Sardar Bahadur with him) for the Intervener (State of Travancor,Cochin). 1954.  March 16.  The Judgment of the Court was delivered by     MUKHERJIA J.-This appeal is directed against a  judgment of a Division Bench of the Madras High Court, dated the 13th of  December,  1951, by which the learned Judges  allowed  & petition,  presented by the respondent under article 226  of the  Constitution,  and directed a writ  of  prohibition  to issue   in  his  favour  prohibiting  the   appellant   from proceeding  with  the settlement of a scheme  in  connection with  a  Math,  known  as the  Shirur  Math,  of  which  the petitioner  happens to be the head or superior.  It  may  be stated  at the outset that the petition was filed at a  time when  the Madras Hindu Religion  Endowments Act (Act  II  of 1927), was in force and the writ was prayed for against  the Hindu Religious Endowments Board constituted under that Act, which  -was  the  predecessor in authority  of  the  present appellant and had initiated proceedings for settlement of  a scheme  against the petitioner under section 61 of the  said Act.    The  petition  was directed to be heard  along  with  two other  petitions of a similar nature relating to the  temple at Chidambaram in the district of South Arcot and  questions were raised in all of them regarding the validity of  Madras



Act 11 of 1927, hereinafter referred to as the Earlier  Act. While  the  petitions were still pending, the  Madras  Hindu Religious and Charitable Endowments Act,, 1951  (hereinafter called  the New Act), was passed by the  Madras  Legislature and came into force on the 27th of August, 1951.  In view of the  Earlier Act being replaced by the new one,,  leave  was given  to all the petitioners to amend their  petitions  and challenge the validity of the.  New Act as well. 1008 Under section 103 of the New Act, notifications, orders  and acts   under   the  Earlier  Act  are  to  be   treated   as notifications,  orders and acts issued, made or done by  the appropriate, authority under the corresponding provisions of the  New  Act, and in accordance with this  -provision,  the Commissioner, Hindu Religious Endowments, Madras, who  takes the  place  of the President,  "Hindu  Religious  Endowments Board  under  the Earlier Act, was added as a party  to  the proceedings.  So  far  as the present appeal is concerned,  the  material facts may be shortly narrated as follows: The Math, known as Shirur  Math,  of which the petitioner is  the  superior  or Mathadhipati, is one of the eight Maths situated at Udipi in the  district of South Kanara and they are reputed  to  have been  founded by Shri Madhwacharya, the well-known  exponent of  dualistic theism in the Hindu Religion.   Besides  these eight Maths, each one of which is presided over by a Sanvasi or Swami, there exists another ancient religious institution 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 Mathadhipati in the Shri Krishna  Math and  its. affairs are managed by the superiors of the  other eight  Maths  by turns and the custom is that the  Swami  of each  of  these eight Maths presides over the  Shri  Krishna Math  in  turn for a period of two years  in  every  sixteen years.  The appointed time of change in the headship of  the Shri Krishna Math is the occasion of a great festival, known as  Pariyayam, when a vast concourse of devotees  gather  at Udipi from all parts of Southern India, and an ancient usage imposes  a duty upon the Mathadhipati to feed every  Brahmin that comes to the place at that time.      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.  At  that time  the Math was heavily in debt.  Between 1926  and  1930 the  Swami succeeded in clearing off a large portion of  the debt.  In 1931, however, came the 1009 turn of his taking over management of the Shri Krishna  Math and he had had to incur debts to meet the heavy  expenditure attendant   on  the  Pariyayam  ceremonies,  The   financial position  improved  to  some extent during  the  years  that followed,  but troubles again arose in 1946, which  was  the year  of  the  second  Pariyayam of  the  Swami.   Owing  to scarcity  and the high prices of commodities at  that  time, the  Swami had to borrow money to meet the  expenditure  and the debts mounted up to nearly a lakh of rupees.  The  Hindu Religious  Endowments Board, functioning under  the  Earlier Act of 1927, intervened at this stage and in exercise of its powers under section 61 -A of the Act called upon the  Swami to appoint a competent manager to manage the affairs of  the institution.  The petitioners case is that the action of the Board  was in stigated 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 direction of  the Board, one Sripath Achar was appointed an agent and a  Power of  Attorney  was  executed in his favour  on  the  24th  of December, 1948.  The agent, it is alleged by the petitioner, wanted  to have his own way in all the affairs of  the  Math and  paid no regard whatsoever to the wishes of the  Mahant. He   did  not  even  submit  accounts  to  the  Mahant   and deliberately  flouted  his  authority.   In  this  state  of affairs the Swami,, on the 26th of September, 1950, served a notice  upon  the agent terminating his agency  and  calling upon him to hand over to the Mathadhipati all account papers and  vouchers relating to the institution together with  the cash  in  hand.  Far from complying with  this  demand,  the agent,  who was supported by the  aforesaid  Lakshminarayans Rao,  questioned  the authority of the Swami to  cancel  his agency  and  threatened that he would refer the  matter  for action  to  the  Board.  On the 4th of  October,  1950,  the petitioner  filed a suit against the agent in the  Sub,Court of South Kanara for recovery of the account books and  other articles belonging to the Math, for rendering an account  of the  management and also for an injunction  restraining  the said  agent  from interfering with the affairs of  the  Math under colour of the 1010 authority  conferred  by  the Power of  Attorney  which  the plaintiff   had   cancelled.    The   said   Sripath   Achar anticipating this suit filed an application to the Board  on the   3rd   of  October,  1950,  complaining   against   the cancellation of the Power of Attorney and his management  of the  Math.   The Board on the 4th October,  1950,  issued  a notice to the Swami proposing to inquire into the matter  on the  24th  of  October following at 2  p.m.  at  Madras  and requesting  the  Swami either to apppear in person or  by  a pleader.   To this the Swami sent a reply on  21st  October, 1950,  stating that the subject-matter of the  very  enquiry was  before the court in the original suit filed by him  and as the matter was sub judice the enquiry should be put  off. A copy of the plaint filed in that suit was also sent  along with  the  reply.   The  Board,  it  appears,  dropped  that enquiry,  but  without waiting for the result of  the  suit, initiated  proceedings  suo  moto under section  62  of  the Earlier Act and issued a notice upon the Swami on the 6th of November,  1950, stating that it had reason to believe  that the  endowments of the said Math were being  mismanaged  and that a scheme should be framed for the administration of its affairs.  . The notice was served by affixture on the  Swami and  the  8th of December, 1950, was fixed as  the  date  of enquiry.  On that date at the request of the counsel for the Swami, it was adjourned to 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 for the Swami was unwell, the matter was again adjourned till the 10th  of January, 1951.  The Swami was not ready with his  objections even on that date as his lawyer had no t recovered from  his illness and a telegram was sent to the Board on the previous day  requesting the latter 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 January,  1951, the Swami, it appears sent a written 1011 explanation  to  the  Board,  which  the  latter  admittedly



received on the 15th On the 24th of January, 1951, the Swami received a notice from the Board stating inter alia that the Board  was  satisfied  that in  the,,  interests  of  proper administration   of  the  Math  and  its   endowments,   the settlement  of a scheme was necessary.  A draft  scheme  was sent  along  with the notice and if the petitioner  had  any objections  to  the  same, he was required to  send  in  his objections on or before the 11th  of February, 1951, as the. final  order regarding the scheme would be made on the  15th of February, 1951.  On the 12th of February, 1951, the peti- tioner filed the petition, out of which this appeal  arises, in  the  High  Court  of  Madras,  praying  for  a  writ  of prohibition to prohibit the Board from taking further  steps in the matter of settling a scheme for the administration of the  Math.   It was alleged inter alia that  the  Board  was actuated by bias against the petitioner 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 fundamental rights guaranteed under the Constitution   in   matters  of   religion   and   religious institutions     belonging    to    particular     religious denominations,  the law regulating the framing of  a  scheme interfering with the management of the Math and its  affairs by  the Mathadhipati conflicted with the provisions of  art- icles  19(1)  (f) and 26 of the Constitution and  was  hence void  under  article 13.  It was alleged  further  that  the provisions of the Act were discriminatory in their character and offended against article 15 of the Constitution.  As has been stated already, after the New Act came into force,  the petitioner  was allowed to end his petition and  the  attack was now directed against the constitutional validity of  the New Act which replaced the earlier legislation.    The learned Judges, who heard the petition, went into the matter  with elaborate fullness, both on the  constitutional questions  involved in it as well as on its merits.  On  the merits,  it was held that in the circumstances of  the  case the  action  of  the Board was a perverse  exercise  of  its jurisdiction and that it should 1012 not be allowed to proceed in regard to the settlement of the scheme. On the constitutional issues raised in the case, the learned Judges pronounced quite a number of sections of  the New  Act  to be ultra vires the Constitution  by  reason  of their  being in conflict with the fundamental rights of  the petitioner guaranteed under articles 19(1)(f), 25, 26 and 27 of the Constitution.  In the result, the rule nisi issued on the  petition was made absolute and the Commissioner,  Hindu Religious Endowments, Madras, was prohibited from proceeding further  with  the  framing  of a  scheme  inregard  to  the petitioner’s  Math.   The  Commisioner has now  come  up  on appeal before us on the strength of a certificate granted by the High Court under article 132(1) of the Constitution.      The  learned Advocate-General for Madras, who  appeared in support of the appeal, confined his arguments exclusively to   the  constitutional  points  involved  in  this   case. Although he had put in an application to. urge grounds other than  the constitutional grounds, that application  was  not pressed  and  he did not challen the findings of  fact  upon which the High Court based its decision on the merits of the petition.  The position, therefore, is that the order of the High  Court  issuing  the writ of  prohibition  against  the appellant  must stand irrespective of the decision which  we light  arrive at on the constitutional points raised  before us.     It is not disputed that a State Legislature is competent



to  enact  laws on the subject of religious  and  charitable endowments,  which  is covered by entry 28 of  List  III  in Schedule   VII   of  the  Constitution.   No   question   of legislative   incompetency  on  the  part  of   the   Madras Legislature  to enact the legislation in question  has  been raised  before  us  with the  exception  of  the  provision, relating  to  payment of annual  contribution  contained  in section 76 of the impugned Act.  The argument that has  been advanced  is, that the contribution is in reality a tax  and not  a  fee and consequently the State  Legislature  had  no authority  to enact a provision of this character.  We  will deal  with  this point separately later on.  All  the  other points canvassed 1013 before us relate to the constitutional validity or otherwise 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 fundamental  rights  guaranteed under articles 19(1) (f), 25, 26 and 27 of the Constitution. In  order  to  appreciate the  contentions  that  have  been advanced  on  these  heads by the learned  counsel  on  both sides,  it may be convenient to refer briefly to the  scheme and the salient provisions of the Act.     The  object  of  the legislation, as  indicated  in  the preamble,  is to amend and consolidate the law  relating  to the  administration  and governance of Hindu  religious  and charitable  institutions  and  endowments in  the  State  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 charitable  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 in  Chapter II  of  the  Act.  Under the  Commissioner  are  the  Deputy Commissioners, Assistant Commissioners and Area  Committees. The  Commissioner, with the approval of the Government,  has to  divide  the State into certain areas and  each  area  is placed  in  charge  of a Deputy Commissioner,  to  whom  the powers of the Commissioner can be delegated.  The State  has also  to  be  divided  into a number  of  divisions  and  an Assistant  Commissioner  is to be placed in charge  of  each division.   Below the Assistant Commissioner, there will  be an  Area  Committee in charge of all  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 131 1014 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 institutions.   Under  section  20,  the  administration  of religious   endowments   is   placed   under   the   general superintendence  and control of the Commissioner and  he  is empowered  to pass any orders which may be deemed  necessary to ensure that such endowments are properly administered and their  income  is -duly appropriated for  the  purposes  for which  they  were  founded or exist. Section  21  gives  the



Commissioner,  the  Deputy and Assistant  Commissioners  and such other officers asmay be authorised in th is behalf, the power to enter the premises of any religious 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  exercising the  power must be a Hindu.  Section 23 makes it  obligatory on the trustee of a religious institution to obey all lawful orders  issued  under  the provisions of  this  Act  by  the Government,  the Commissioner, the Deputy Commissioner,  the Area  Committee or the Assistant Commissioner.   Section  24 lays  down that in the administration of the affairs of  the institution,  a trustee should use as much care as a man  of ordinary  prudence  would use in the management of  his  own affairs.  -  Section  25  deals  with  the  preparation   of registers  of  all  religious institutions  and  section  26 provides  for  the annual verification  of  such  registers. Section  27 imposes a duty on the trustee to furnish to  the Commissioner  such  accounts,  returns,  reports  and  other information as the Commissioner may require.  Under  section 28, power is given to the Commissioner or any other  officer authorised  by  him  to inspect all  movable  and  immovable properties appertaining to a religious institution.  Section 29 forbids alienation of all immovable properties  belonging to  the trust, except leases for a term not  exceeding  five -,,ears, without the Sanction of the Commissioner.   Section 30  lays down that although a trustee may incur  expenditure for making arrangements for securing the health and 1015 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 guided  in such matters by all genera 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 permission in writing,  of the Deputy Commissioner for any of the purposes specified in section  59(1).  Chapter IV deals specifically  with  Maths. Seetion 52 enumerates the grounds on which a suit would  lie to remove a trustee.  Section 54 relates to what is called " dittam  " or scale of expenditure.  The trustee has  got  to submit to the Commissioner proposals for fixing the "dittam" and  the  amounts  to be allotted  to  the  various  objects connected  with  the institution.  The proposals are  to  be published  and  after receiving suggestions,  if  any,  from persons   interested  in  the  instution,  they   would   be scrutinised by the Commissioner.  If the Commissioner thinks that  a modification is necessary, he shall submit the  case to the Government and the orders of the Government would  be final.   Section  55 empowers the trustee to  spend  at  his discretion  and  for purposes connected with  the  Math  the "Pathakanikas  " or gifts made to him personally, but he  is required  to  keep  regular accounts  of  the  receipts  and expenditure  of such personal gifts.  Under section 56,  the Commissioner  is  empowered  to call  upon  the  trustee  to appoint  a  manager for the administration  of  the  secular affairs   of  the  institution  and  in  default   of   such appointment,  the  Commissioner  may  make  the  appointment himself.   Under  section  58,  a  Deputy  Commissioner   is competent  to frame a scheme for any religious  institutions if  he  has reason to believe that in the interests  of  the proper  administration  of  the trust  any  such  scheme  is necessary.  Sub-section (3) of this section provides that  a scheme settled for a Math may contain inter alia a provision for  appointment of a paid executive officer professing  the



Hindu religion, whose salary shall be paid out of the funds- of   the  institution.   Section  59  makes  provision   for application of the "cy pres" doctrine when the specific 1016 objects  of  the trust fail.  Chapter VI of the  Act,  which comprises sections 63 to 69, deals with the notification  of religious  institutions.   A religious  institution  may  be notified in accordance with the provisions laid down in this chapter.  Such notification remains in force for five  years and the effect of it is to take over the administration  and vest   it   in  an  executive  officer  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  for   all   religious institutions   to   pay  annually  to   the   Government   a contribution  not exceeding 5 per cent. of their  income  on account  of the services rendered to them by the  Government and  their officers functioning under this Act.  Chapter  IX is  not material for our purpose, and Chapter X  deals  with provisions of a miscellaneous nature.  Section 89 in Chapter X prescribes the penalty for refusal by a trustee to  comply with  the provisions of the Act.  Section 92 lays down  that nothing  contained in the Act shall be deemed to confer  any power  or.  impose any duty in contravention of  the  rights conferred  on any religious denomination under clauses  (a), (b)  and (c) of article 26 of the Constitution.  Section  99 vests  a revisional jurisdiction in the Government  to  call for  and examine the records of the Commissioner  and  other subordinate  authorities  to satisfy themselves  as  to  the regularity  and  propriety of any proceeding  taken  or  any order  or  decision made by them These, in  brief,  are  the provisions of the Act material for our present purpose.     The learned Judges of the High Court have taken the view that the respondent as Mathadhipati has certain well defined rights in the institution and its endowments which could  be regarded as rights to property within the meaning of article 19(1)(f) of the Constitution.  The provisions of the Act  to the extent that they take away or unduly restrict the  power to  exercise  these rights are not  reasonable  restrictions within the meaning of article 19(5) and must consequently be held  invalid.  The High Court has held in the second  place that the respondent, as the head and 1917 representative  of  a  religious institution,  has  a  right guaranteed  to him under article 25 of the  Constitution  to practise  and propagate freely the religion of which he  and his  followers profess to be adherents.  This right, in  the opinion of the High Court, has been affected by some of  the provisions of the Act.  The High Court has held further that the  Math in question is really an institution belonging  to Sivalli  Brahmins,  who are a section of  the  followers  of Madhwacharya and hence constitutes a religious  denomination within the meaning of article 26 of the Constitution.   This religious denomination has a fundamental right under article 26 to manage its own affairs in matters of religion  through the  Mathadhipati who is their spiritual head and  superior, and  those provisions of the Act, which  substantially  take away the rights of the Mathadhipati in this respect,  amount to  violation  of  the fundamental  right  guaranteed  under article  26.   Lastly,  the High Court has.  held  that  the provision for compulsory contribution made in section 76  of the  Act  comes  within the mischief of article  27  of  the Constitution.   This last point raises a wide issue  and  We propose  to discuss it separately later on.  So far  as  the other  three points are concerned, we will have  to  examine



first  of all the general contentions that have been  raised by the learned Attorney-General, who appeared for the  Union of India as an intervener in this and other connected cases, and the questions raised are, whether these articles of  the Constitution  are at all available to the respondent in  the present  case  and  whether they  give  him  any  protection regarding  the rights and privileges, of the  infraction  of which he complains.    As  regards  article 19(1)(f) of  the  Constitution,  the question   that  requires  consideration  is,  whether   the respondent  as Mathadhipati has a right to property  in  the legal   sense,,  in  the  religious  institution   and   its endowments  which would enable him to claim the  -protection of  this  article  ? A question is  also  formulated  as  to whether this article deals with concrete rights of  property at  all  ?  So  far as article 25  of  the  Constitution  is concerned, the point raised is, whether this 1018 article which, it is said, is intended to protect  religious freedom  only  so far as individuals are concerned,  can  be invoked in favour of an institution or Organisation ?   With regard to article 26, the contention is that a Math does not come  within the description of a religious denomination  as provided for in the article and even if it does, what cannot be interfered with is its right to manage its own affairs in matters of religion only and nothing else.  It is said, that the  word it religion ", as used in this article, should  be taken in its strict etymological sense as distinguished from any kind of secular activity which may be connected in  some way with religion on but does not form an essential part  of it.   Reference is made in this connection to clause  (2)(a) of article 25 and clause (d) of article 26.  We will take up these points for consideration one after another.  As  regards the -property rights of a Mathadhipati, it  may not be possible to say in view of the pronouncements of  the Judicial Committee, which have been accepted as good law  in this country ever since 1921, that a Mathadhipati holds  the Math  property  as  a lifetenant or  that  his  position  is similar to that of a Hindu widow 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 be,  as the  Privy Council(1), says, a manager or custodian, of  the institution who has to discharge the duties of a trustee and is  answerable as such; but he is not a mere manager and  it would not be right to describe Mahantship as a mere office." A  superior  of a Math has not only duties to  discharge  in connection with the endowment but he has a personal interest of a beneficial character which is sanctioned by custom  and is  much  larger  than that of a  Shebait  in  the  debutter property.  It was held by a Full Bench of the Calcutta  High Court(2),  that  Shebaitship. itself is property,  and  this decision was approved of by the Judicial Committee in Ganesh v Lal Behary(3), and again in Bhabatarini v. Ashalata(4). (1)  Vide Vidya Varuthi v. Balusami, 48 I. A. 302 (2)  Vide Monahai v. Bhupendra, 60 Cal. 452. (3)  63 I.A. 448. (4)  70 I.A. 57. 1019 The effect of the first two decisions, as the Privy  Council pointed out in the last case, was to emphasise the  propriet ary element in the Shebaiti right and to show that though in some  respects an anomaly, it was an anomaly to be  accepted as having been admitted into Hindu ,law from an early  date. This  view  was  adopted in its entirety by  this  court  in Angurbala  v. Debabrata (1), and what was said in that  case



in respect to Shebaiti right could, with equal propriety, be applied  to the office of a Mahant.  Thus in the  conception of  Mahantship,  as  in Shebaitship, both  the  elements  of office  and  property, of duties and personal  interest  are blended together and neither can be detached from the other. The  personal  or beneficial interest of the Mahant  in  the endowments  attached to an institution is manifested in  his large powers of disposal and administration and his right to create derivative tenures in respect to endowed  properties; and these and other rights of a similar character invest the office  of  the Mahant with .the  character  of  proprietary right  which,  though anomalous to some extent, is  still  a genuine legal right.  It is true that the Mahantship is  not heritable like ordinary property, but that is because of its peculiar  nature and the fact that the office  is  generally held by an ascetic, whose connection with his natural family being completely cut of, the ordinary rules of succession do not apply.    There  is no reason why the word "property", as  used  in article 19(1) (f) of the Constitution, should not be given a liberal  and wide connotation and should not be extended  to those  well  recognised  types of interest  which  have  the insignia  or characteristics of proprietary right.  As  said above,  the  ingredients  of both office  and  property,  of duties  and  personal interest are blended together  in  the rights  of  a Mahant and the Mahant has the right  to  enjoy this  property  or  beneficial interest so  long  as  he  is entitled  to hold his office.  To take away this  beneficial interest and leave him merely to the discharge of his duties would  be to destroy his character as a  Mahant  altogether. It  is true that the beneficial interest which he enjoys  is appurtenant to his duties (1)  [1951] S.C.R. 1125. 1020 and  as he is in charge of a public institution,  reasonable restrictions  can  always be placed upon his rights  in  the interest of the public.  But the restrictions would cease to be  reasonable if they are calculated to make him  unfit  to discharge  the duties which he is called upon to  discharge. A Mahant’s duty is not simply to manage the temporalities of a Math.  He is the head and superior of spiritual fraternity and the purpose of Math is to encourage and foster spiritual training by maintenance of a competent line of teachers  who could  impart  religious instructions to the  disciples  and followers of the Math and try to strengthen the doctrines of the particular school or order, of which they profess to  be adherents.    This   purpose  cannot  be   served   if   the restrictions  are such as would bring the Mathadhipati  down to  the level of a servant under a State department.  It  is from   this  standpoint  that  the  reasonableness  of   the restrictions should be judged.     A  point  was suggested by the  learned  AttorneyGeneral that as article 19(1) (f) deals only with the natural rights inherent  in  a  citizen to acquire,  hold  and  dispose  of property in the abstract without reference to rights to  any particular property, it can be of no real assistance to  the respondent  in  the  present  case and  article  3l  of  the Constitution, which deals with deprivation of property,  has no  application  here.   In the case of The  State  of  West Bengal  v.  Subodh Gopal Bose(II) (Civil Appeal No.  107  of 1952, decided by this court on the 17th December, 1953),  an opinion was expressed by Patanjali Sastri C. J. that article 19(1)  (f)  of the Constitution is concerned only  with  the abstract right and capacity to acquire, hold and dispose  of property  and that it has no relation to  concrete  property



rights.  This, it may be noted, was an expression of opinion by  the  learned  Chief Justice alone and  it  was  not  the decision  of the court ; for out of the other  four  learned Judges  who together with the Chief Justice constituted  the Bench,  two did not definitely agree with this  view,  while the remaining 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 in support of the  appeal, nor by any of the other (1)  (1954] S.C.R. 587 1021 counsel  appearing  in  this case.   The  learned  Attorney. General himself stated candidly that he was not prepared  to support  the  view  taken  by  the  late  Chief  Justice  as mentioned  above,  and he only raised the. point to  get  an authoritative  pronouncement upon it by the court.   In  our opinion, it would not be proper to express any final opinion upon  the  point  in the present case when we  had  not  the advantage  of  any arguments addressed to us  upon  it.   We would  prefer  to proceed, as this court has  proceeded  all along,  in  dealing with similar cases in the past,  on  the footing  that article 19(1) (f) applies equally to  concrete as well as abstract rights of property.     We  now  come  to  article 25  which,  as  its  language indicates, secures to every person, subject to public order, health  and morality, a freedom not only to  entertain  such religious belief, as may be approved of by his judgment  and conscience,  but also to exhibit his belief in such  outward acts as he thinks proper and to propagate or disseminate his ideas  for the edification of others.  A question is  raised as to whether the word "persons" here means individuals only or includes corporate bodies as well.  The question, in  our opinion, is not at all relevant for our present purpose.   A Mathadhipati  is certainly not a corporate body; he  is  the head  of a spiritual fraternity and by virtue of his  office has to perform the duties of a religious teacher. it is  his duty  to  practise and propagate the  religious  tenets,  of which he is an adherent and if any provision of law prevents him  from  propagating his doctrines, that  would  certainly affect  the religious freedom which is guaranteed  to  every person  under  article  25.   Institutions  as  such  cannot practise  or  propagate  religion; it can be  done  only  by individual persons and whether these person propagate  their personal  views  or  the tenets for  which  the  institution stands is really immaterial for purposes. of article 25.  It is  the propagation of belief that is protected,  no  matter whether   the  propagation  takes  place  in  a  church   or monastery, or in a temple or parlour meeting. As  regards  article 26, the first question is, what is  the precise meaning or connotation of the expression 132 1022 "religious  denomination"  and  whether a  Math  could  come within  this expression.  The word "denomination"  has  been defined  in the Oxford Dictionary to mean ’Ca collection  of individuals  classed  together  under   the  same  name:   a religious   sect   or  body  having  a  common   faith   and Organisation  and designated by a  distinctive name.  It  is well known that the practice of setting up Maths as  centres of  the logical teaching was started by  Shri  Sankaracharya and  was  followed by various teachers  since  then.   After Sankara,   came   a  galaxy  of   religious   teachers   and philosophers  who founded the different sects and  sub-sects of  the Hindu religion that we find in India at the  present day.   Each one of such sects or sub-sects can certainly  be



balled  a religious denomination, as it is designated  by  a distinctive  name,-in  many  cases it is  the  name  of  the founder,-and  has  a  common  faith  and  common   spiritual organization.   The followers of Ramanuja, who are known  by the  name  of  Shri  Vaishnabas,  undoubtedly  constitute  a religious   denomination;  and  so  do  the   followers   of Madhwacharya  and  other religious teachers.  It is  a  fact well  established  by tradition that the eight  Udipi  Maths were  founded by Madhwacharya himself and the  trustees  and the beneficiaries of these Maths profess to be followers  of that  teacher.   The High Court has found that the  Math  in question is in charge of the Sivalli Brahmins who constitute a  section of the followers of Madhwacharya.  As article  26 contemplates not merely a religious denomination but also  a section  thereof,  the  Math  or  the  spiritual  fraternity represented  by it can legitimately come within the  purview of this article.    The  other thing that remains 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  in matters  of  religion ?" The language  undoubtedly  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 is, whereas the line  to  be drawn between what are matters of religion and what are not 1023 It  will  be seen that besides the right to manage  its  own affairs  in  matters of religion, which is given  by  clause (b),  the  next  two clauses of article 26  guarantee  to  a religious denomination the right to acquire and own property and to administer such property in accordance with law.  The administration  of its property by a religious  denomination has  thus been placed on a different footing from the  right to  manage  its  own affairs in matters  of  religion.   The latter is a fundamental right which no legislature can  take away, whereas the former can be regulated by laws which  the legislature  can  validly impose.  It is  clear,  therefore, that   questions  merely  relating  to   administration   of properties belonging to a religious group or institution are not  matters of religion to which clause (b) of the  article applies.   What  then  are matters of religion  ?  The  word "religion " has not been defined in the Constitution and  it is  a  term  which  is  hardly  susceptible  of  any   rigid definition.  In an American case(1), it has been said " that the  term  religion  has reference to  one’s  views  of  his relation  to his Creator and to the obligations they  impose of reverence for His Being and character and of obedience to His  will.   It is often confounded with cultus of  form  or worship  of a particular sect, but is  distinguishable  from the  latter." We do not think that the above 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"  as  given  above could have been in the minds of our Constitution-makers when they  framed  the  Constitution.  Religion  is  certainly  a matter  of faith with individuals or communities and  it  is not necessarily theistic.  There are well 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 conducive  to their  spiritual well being, but it would not be correct  to say that religion is nothing else, but a



(1)  Vide Davie v. Benson 133 U.S 333 at 342. 1024 doctrine or belief.  A religion may not only lay down a code of  ethical  rules  for its followers to  accept,  it  might prescribe  rituals and observances, ceremonies and modes  of worship  which are regarded as integral parts  of  religion, and these forms and observances might extend even to matters of food and dress.    The  guarantee under our Constitution not  only  protects the  freedom of religious opinion but it protects also  acts done  in pursuance of a religion and this is made  clear  by the  use  of  the expression " practice  of  religion  "  in article  25.   Latham C. J. of the High Court  of  Australia while  dealing  with  the provision of section  116  of  the Australian   Constitution  which  inter  alia  forbids   the Commonwealth to prohibit the "free exercise of any religion" made the following weighty observations(1) :    " It is sometimes suggested in discussions on the subject of  freedom  of religion that, though the  civil  Government should   not   interfere   with   religious   opinion&,   it nevertheless may deal as it pleases with any acts which  are done in pursuance of religious belief without infringing the principle  of freedom of religion.  It appears to me  to  be difficult  to maintain this distinction as relevant  to  the interpretation  of  section  116.   The  section  refers  in express terms to the exercise of religion, and therefore  it is   intended   to  protect  from  the  operation   of   any Commonwealth  laws  acts which are done in the  exercise  of religion.   Thus  the  section goes  far  beyond  protecting liberty  of  opinion.   It  protects  also  acts.  done   in pursuance of religious belief as part of religion."    These  observations  apply  fully to  the  protection  of religion   as   guaranteed  by  the   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  article  25 reserves the right of the State to regulate or restrict  any economic, financial, political and other secular  activities which may be associated with religious practice and there is a  further right given to the State by sub-clause (b)  under which the State can (1)  Vide  Adelaide  Company V. The Commonwealth  67  C.L.R. 116, 127 1025 legislate  for social welfare and reform even though  by  so doing  it  might interfere with  religious  practices.   The learned  Attorney-General lays stress upon clause (2)(a)  of the   article  and  his  contention  is  that  all   secular activities, which may be associated with religion but do not really  constitute an essential part of it, are amenable  to State regulation.      The  contention formulated in such broad terms  cannot, we   think,  be  supported.   In  the  first   place,   what constitutes the essential part of a religion is primarily to be  ascertained  with  reference to the  doctrines  of  that religion itself.  If the tenets of any religious sect of the Hindus  prescribe that offerings of food should be given  to the  idol  at particular hours of the day,  that  periodical ceremonies  should be performed in a certain way at  certain periods of the year or that there should be daily recital of sacred  texts  or ablations to the sacred  fire,  all  these would  be  regarded as parts of religion and the  mere  fact that  they  involve expenditure of money  or  employment  of priests  and servants or the use of  marketable  commodities would  not  make  them secular  activities  partaking  of  a



commercial or economic character; all of them are religious. practices  and  should be regarded as  matters  of  religion within the meaning of article 26(b).  What article  25(2)(a) contemplates  is  not regulation by the State  of  religious practices as such, the freedom of which is guaranteed by the Constitution  except when they run counter to public  order, health and morality, but regulation of activities which  are economic, commercial or political in their character  though they are associated with religious practices.  We may  refer in  this connection to a few American and Australian  cases, all  of  which  arose  out  of  the  activities  of  persons connected with the religious association known as  "Jehova’s Witnesses."  This association of persons  loosely  organised throughout Australia, U.S.A. and other countries regard  the literal interpretation of the Bible as fundamental to proper religious beliefs.  This belief in the supreme Authority  of the  Bible  colours  many of their  political  ideas.   They refuse  to  take  oath of allegiance to the  king  or  other Constituted 1026 human  authority  and even to show respect to  the  national flag, and they decry all wars between nations and all  kinds of  war  activities.   In  1941  a  company  of  "  Jehova’s Witnesses " incorporated in Australia commenced  proclaiming and   teaching  matters  which  were  prejudicial   to   war activities  and  the defence of the Commonwealth  and  steps were   taken  against  them  under  the  National   Security Regulations of the State.  The legality of the action of the Government was questioned by means of a writ petition before the  High Court and the High Court held that the  action  of the  Government  was justified and that section  116,  which guaranteed   freedom  of  religion  under   the   Australian Constitution,  was not in any way infringed by the  National Security  Regulations(1).  These were undoubtedly  political activities   though   arising  out   of   religious   belief entertained  by a particular community.  In such  cases,  as Chief   Justice  Latham  pointed  out,  the  provision   for protection of religion was not an absolute protection to  be interpreted and applied independently of other provisions of the Constitution.  These privileges must be reconciled  with the  right  of the State to employ the  sovereign  power  to ensure  peace,  security and orderly  living  without  which constitutional  guarantee  of  civil  liberty  would  be   a mockery.     The courts of America were at one time greatly  agitated over  the question of legality of a State  regulation  which required the pupils in public schools on pain of  compulsion to participate in a daily ceremony of saluting the  national flag, while reciting in unison, a pledge of allegiance to it in a certain set formula.  The question arose in Minersville School District, Board of Education, etc. v. Gobitis(2).  In that  case two small children, Lillian and William  Gobitis, were  expelled  from  the  public  school  of   Minersville, Pennsylvania,  for refusing to salute the national  flag  as part  of  the  daily  exercise.   The  Gobitis  family  were affiliated with "Jehova’s Witnesses" and had been (1)  Vide  Adelaide Company v. The Commonwealth, 67  C.L.R., 116, 127. (2)  310 U.S. 586. 1027 brought up conscientiously to believe that such a gesture of respect  for 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 exacted from a   child,  who  refused  upon  sincere  religious   ground,



infringed  the liberty of religion guaranteed by  the  First and the Fourteenth Amendments ? The court held by a majority that  it did not and that it was within the province of  the legislature and the school authorities to adopt  appropriate means  to  evoke and foster a sentiment of.  national  unity amongst the children in public schools.  The Supreme  Court, however, changed their views on this identical point in  the later  case  of West Virginia State Board  of  Education  v. Barnette(1).   There  it  was held  overruling  the  earlier decision  referred  to above that the action of a  State  in making  it  compulsory  for children in  public  schools  to salute   the  flag  and  pledge  allegiance  constituted   a violation of the First and the Fourteenth Amendments.   This difference  in  judicial  opinion brings  out  forcibly  the difficult task which a court has to perform in cases of this type  where the freedom or religious  convictions  genuinely entertained  by  men  come into  conflict  with  the  proper political  attitude  which  is  expected  from  citizens  in matters of unity and solidarity of the State organization.     As regards commercial activities, which are prompted  by religious  beliefs,  we  can cite the  case  of  Murdock  v. Pennsylvania(2).   Here also the petitioners were  "Jehova’s Witnesses" and they went about from door to door in the city of  Jeannette distributing literature and soliciting  people to  purchase  certain  religious books  and  pamphlets,  all published  by  the Watch Tower Bible and Tract  Society.   A municipal ordinance required religious colporteurs to pay  a licence  tax  as  a  condition  to  the  pursuit  of   their activities.   The petitioners were convicted and  fined  for violation  of the ordinance. It was held that the  ordinance in  question was invalid under the Federal  Constitution  as constituting  a  denial  of freedom  of  speech,  press  and religion; (1)  319 U.S. 624. (2)  319 U.S. 105. 1028 and  it was held further that upon the facts of the case  it could not be said that "Jehova’s Witnesses" were engaged  in a  commercial  rather  than in a  religious  venture.   Here again, it may be pointed out that a contrary view was  taken only a few years before in the case of Jones v.  Opelika(1), and  it was held that a city ordinance, which required  that licence  be  procured  and taxes paid for  the  business  of selling  books  and pamphlets on the streets from  house  to house,   was   applicable  to  a  member  of   a   religious Organisation   who  was  engaged  in  selling  the   printed propaganda,  pamphlets  without  having  complied  with  the provisions of the ordinance.     It  is to be noted that both in the American as well  as in  the  Australian Constitutions the. right to  freedom  of religion  has been declared in unrestricted terms with.  out any  limitation  whatsoever.  Limitations,  therefore,  have been  introduced  by  courts of law in  these  countries  on grounds  of  morality,  order  and  social  protection.   An adjustment  of  the competing demands of  the  interests  of Government and constitutional liberties is always a delicate and  a difficult task and that is why we find difference  of judicial  opinion to such an extent in cases decided by  the American  courts where questions of religious  freedom  were involved.   Our Constitution-makers, however, have  embodied the   limitations  which  have  been  evolved  by   judicial pronouncements  in America or Australia in the  Constitution itself   and  the  language  of  articles  25  and   26   is sufficiently clear to enable us to determine without the aid of  foreign authorities as to what matters come  within  the



purview  of  religion and what do not.  As we  have  already indicated,  freedom of religion in our Constitution  is  not confined to religious beliefs only; it extends to  religious practices  as  well subject to the  restrictions  which  the Constitution  itself  has laid down.  Under  article  26(b), therefore, a religious denomination .or organization  enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of  the religion  they  hold  and  no  outside  authority  has   any jurisdiction to (1)  316 U.S. 584. 1029 interfere  with their decision in such matters.  Of  course, the  scale  of expenses to be incurred  in  connection  with these   religious   observances  would  be   a   matter   of administration  of  property  belonging  to  the   religious denomination and can be controlled by secular authorities in accordance   with   any  law  laid  down  by   a   competent legislature;  for  it could not be the  injunction,  of  any religion  to destroy the institution and its  endowments  by incurring wasteful expenditure on rites and ceremonies.   It should be noticed, however, that under article 26(d), it  is the  fundamental  right of a religious denomination  or  its representative  to administer its properties  in  accordance with  law; and the law, therefore, must leave the  right  of administration to the religious denomination itself  subject to  such restrictions and regulations as it might choose  to impose.  A law which takes away the right of  administration from  the 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.    Having thus disposed of the general contentions that were raised  in this appeal, we will proceed now to  examine  the specific grounds that have been urged by 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  the fundamental  rights  of  the  respondent.   The   concluding portion of the judgment of the High Court where the  learned Judges  summed  up their decision on this  point  stands  as follows:     "  To  sum up, we hold that the following  sections  are ultra  vires the State Legislature in so far as they  relate to  this  Math: and what we say will also equally  apply  to other  Maths of a similar nature.  The sections of  the  new Act  are:  sections 18, 209 21, 25(4), section  26  (to  the extent section 25(4) is made applicable), section 28 (though it  sounds  innocuous,  it is liable to  abuse  as  we  have already  pointed out earlier in the judgment),  section  29, clause-  (2)  of  section 30,  section  31,  section  39(2), section 42, section 53 (because courts have ample powers  to meet  these  contingencies),  ,section  54,  clause  (2)  of section 55, section 56, clause (3) 133 1030 of  section 58, sections to 69 in Chapter VI,  clauses  (2), (3)  and  (4)  of section 70, section  76,  section  89  and section 99 (to the extent it gives the Government  virtually complete control over the Matadhipati and Maths).     It  may  be pointed out at the outset that  the  learned Judges  were not, right in including sections 18, 39(2)  and 42  in  this list, as these sections are not  applicable  to Maths  under  the  Act itself This  position  has  not  been disputed by Mr. Somayya, who appears for the respondent.       Section  20  of the Act describes the  powers  of  the



Commissioner  in  respect to religious endowments  and  they include  power  to  pass  any  orders  that  may  be  deemed necessary  to  ensure  that  such  endowments  are  properly administered and that their income is duly appropriated  for the purposes for which they were founded.  Having regard  to the  fact that the Mathadhipati occupies the position  of  a trustee  with  regard  to  the  Math,  which  is  a   public institution, some amount of control or supervision over  the due  administration of the endowments and due  appropriation of their funds is certainly necessary in the interest of the public  and  we  do not think that  the  provision  of  this section  by  itself  offends any fundamental  right  of  the Mahant.  We do not agree with the High Court that the result of  this  provision  would be to reduce the  Mahant  to  the position  of  a  servant.   No  doubt  the  Commissioner  is invested,  with  powers to pass orders, but  orders  can  be passed  only for the purposes specified in the  section  and not  for interference with the rights of the Mahant  as  are sanctioned  by  usage or for lowering his  position  as  the spiritual  head  of the institution.  The  saving  provision contained in section 91 of the Act makes the position  quite clear.   An apprehension that the powers conferred  by  this section may be abused in individual cases does not make  the provision itself bad or invalid in law.       We  agree,  however, with the High Court in  the  view taken  by  it about section 21.  This section  empowers  the Commissioner  and his subordinate officers and also  persons authorised by them to enter the premises  of 1031 any  religious  institution  or place  of  worship  for  the purpose  of  exercising  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  entry  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 outsider  to the  particularly sacred parts of a temple as  for  example, the place where the deity is located.  There are also  fixed hours  of worship and rest for the idol when no  disturbance by  any member of the public is allowed.  Section 21, it  is to  be  noted, does not confine the right of  entry  to  the outer portion of the premises; it does not even exclude  the inner  sanctuary  the  Holy of Holies" as it  is  said,  the sanctity  of which is zealously preserved.  It does not  say that the entry may be made after due notice to the head. of. the institution and at such hours which would not  interfere with  the due observance of the rites and ceremonies in  the institution.   We  think  that as  the  section  stands,  it interferes  with the fundamental rights of the  Mathadhipati and  the denomination of which he is head  guaranteed  under articles  25 and 26 of the Constitution.  Our attention  has been  drawn  in. this connection to section 91. of  the  Act which, it is said, provides a sufficient -safeguard  against any  abuse of power under section 2 1. We cannot agree  with this contention.  Clause (a ) of section 91 excepts from the saving clause all express provisions of the Act within which the  provision  of  section 21 would have  to  be  included. Clause (b) again does not say anything about custom or usage obtaining in an institution and it does not indicate by whom and  in what manner the question of interference  with  the, religious  and  spiritual  functions of the  Math  would  be decided in case of any dispute arising regarding it.  In our opinion, section 21 has been rightly held to be invalid.  Section  23  imposes a duty upon the trustees to  obey  all



lawful orders issued be the Commissioner or any  subordinate authority  under the, provisions of the Act.   No  exception can be taken to the section if those 1032 provisions of the Act, which offend against the  fund&mental rights  of the respondent, are left out of account as  being invalid.   No body can  make a grievance if he .is  directed to obey orders issued in pursuance of valid legal authority. The same reason would, in our opinion, apply to section  24. It  may be mentioned here that sections 23 and 24  have  not been specifically mentioned in the concluding portion of the judgment  of the High Court set out above, though they  have been  attacked  by  the learned Judges in  course  of  their discussion.     As  regards  section  25,  the  High  Court  has   taken exception  only  to  clause  (4) of  the  section.   If  the preparation  of registers for religious institutions is  not wrong  and  does not affect the fundamental  rights  of  the Mahant,one fails to see how the direction for addition to or alteration  of entries in such registers, which  clause  (4) contemplates  and  which will be necessary as  a  result  of enquiries made under clause (3), can, in any sense, be  held to  be invalid as infringing the fundamental rights  of  the Mahant.  The enquiry that is contemplated by clauses (3) and (4) is an enquiry into the actual state of affairs, and  the whole object of the section is to keep an accurate record of the particulars specified in it.  We are unable,  therefore, to agree with the view expressed by the learned Judges.  For the  same  reasons, section 26, which  provides  for  annual verification of the registers, cannot be held to be bad. According to the High Court section 28 is itself  innocuous. The  mere possibility of its being abused is no  ground  for holding  it to be invalid.  As all endowed  properties  are. ordinarily inalienable, we fail to see why the  restrictions placed  by Section 29 upon alienation of endowed  properties should be considered bad.  In our opinion, the provision  of clause (2) of section 29, which enables the Commissioner  to impose  conditions when he grants sanction to alienation  of endowed  property,  is perfectly reasonable and to  that  no exception can be taken.    The  provision  of  section 30(2) appears  to  us  to  be somewhat obscure.  Clause (1) of the section enables 1033 a  trustee  to  incur expenditure out of the  funds  in  his charge  after making adequate provision . for  the  purposes referred  to in section 70(2), for making  arrangements  for the  health, safety and convenience of disciples,  pilgrims, etc.    Clause   (2),  however,  says  that   in   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.   If  the trustee is to be guided but not fettered by such directions, possibly no objection can be taken to this clause; but if he is bound to carry out such instructions, we do think that it constitutes an encroachment on his right.  Under the law, as it stands, the Mahant has large  powers of disposal over the surplus  income and the only restriction is that  he  cannot spend  anything out of it for his personal  use  unconnected with  the  dignity  of his ,office.   But  as  the  purposes specified  in sub-clauses (a) and (b) of section  30(1)  are beneficial  to the institution there seems to be  no  reason why the authority vested in the Mahant to spend the  surplus income  for such purposes should be taken away from-him  and he  should  be compelled to act in such  matters  under  the instructions of the Government officers. We think that  this



is  an  unreasonable restriction on the  Mahant’s  right  of property which is blended with his office.    The  same reason applies in our opnion to section  31  of the  Act, the meaning of -which also is far from clear.   If after  making adequate provision for the purposes  referred, to  in section 70(2) and for, the arrangements mentioned  in section  30(2)  there  is  still a  surplus  left  with  the trustee, section 31 enables him to spend it for the purposes specified in section 59(1) with the previous sanction of the Deputy  Commissioner.   One  of the  purposes  mentioned  in section 59(1) is the propagation of the religious tenents of the  institution, and it, is not understood why sanction  of the Deputy Commissioner should be necessary for spending the surplus, income for the propagation of the religious  tenets of the order which is one of the primary duties of a  Mahant to  discharge.  The next thing that strikes one is,  whether sanction is necessary if the trustee 1034 wants  to  spend  the money for purposes  other  than  those specified  in section 59(1) ? If the answer is in the  nega- tive,  the whole object of the section becomes  meaningless. If,  on  the other hand, the implication of the  section  is that  the  surplus  can  be  spent  only  for  the  purposes specified in section 59(1) and that too with the  permission of   the  Deputy  Commissioner,  it  undoubtedly  places   a burdensome  restriction  upon  the property  rights  of  the Mahant  which are sanctioned by usage and which  would  have the  effect of impairing his dignity and efficiency  as  the head  of the institution.  We think that sections 30(2)  and 31 have been rightly held to be invalid by the High Court.     Sections 39 and 42, as said already, are not  applicable to  Maths  and  hence can be left  out  of  consideration,., Section  53 has . been condemned by the - High Court  merely on  the  ground  that the court has  ample  jurisdiction  to provide for the contingencies that this section is  intended to  meet.   But  that  surely  cannot  prevent  a  competent legislature  from legislating on the topic, provided it  can do  so  without  violating" any of  the  fundamental  rights guaranteed by the Constitution.  We are unable to agree with the  High  Court on this point.  There seems to  be  nothing wrong  or  unreasonable  in  section 54  of  the  Act  which provides for fixing the standard, scale of expenditure.  The proposals for this purpose would have to be submitted by the trustee  ;  they are then to be  published  and  suggestions invited from persons having interest in the amendment.   The Commissioner  is  to scrutinise the original  proposals  and the  .  suggestions  received  and  if  in  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 provision.    Section 55 deals with a Mahant’s power over  Pathakanikas or  personal gifts.  Ordinarily a Mahant has absolute  power of  disposal  over  such gifts, though if  he  dies  without making  any disposition, it is reckoned as the  property  of the  Math  and  goes to the succeeding  Mahant.   The  first clause of section 55 lays down that such Pathakanikas  shall be spent only for the 1035 purposes of the Math.  This is an unwarranted restriction on the property right of the Mahant.  It may be that  according to  customs  prevailing in a  particular  institution,  such personal  gifts  are regarded as gifts  to  the  institution itself   and   the  Mahant  receives  them   only   as   the representative  of the institution; but the general rule  is



otherwise.   As  section 55(1) does not say that  this  rule will  apply only when there is a custom of that nature in  a particular  institution, we must say that the  provision  in this unrestricted form is an unreasonable encroachment  upon the,  fundamental right of the Mahant.  The  same  objection can be raised against clause (2) of the section; for if  the Pathakanikas  constitute the property of a Mahant, there  is no justification for compelling him to keep accounts of  the receipts  and expenditure of such personal gifts.   As  said already,  if  the  Mahant dies without  disposing  of  these personal  gifts,  they may form part of the  assets  of  the Math,  but that is no reason for -restricting the powers  of the Mahant over these gifts so long as he is alive.     Section  56  has been rightly invalidated  by  the  High Court.,   It  makes  provision  of  an   extremely   drastic ,character.   Power  has been given to the  Commissioner  to require the trustee to appoint a manager for  administration of  the  secular affairs of the institution and in  case  of default, the Commissioner can make the appointment. himself. The  manager thus appointed -though nominally a  servant  of the  trustee, has practically to do everything according  to the  directions of .the Commissioner and  his  subordinates. It  is to be noted that this power can be exercised  at  the mere  option  of the Commissioner  without,  any  justifying necessity   whatsoever  and  no  pre-requisites  like   mis- management  of property or maladministration of trust  funds are necessary to enable the trustee to exercise such drastic power.   It  is  true  that  the  section  contemplates  the appointment  of a manager for administration of the  secular affairs of this institution.  But no rigid demarcation could be made as we have already said between the spiritual duties of the Mahant 1036 and his personal interest in the trust property.  The effect of the section really is that the Commissioner is at liberty at any moment he chooses to deprive the Mahant of his  right to  administer  the  trust  property even  if  there  is  no negligence   or   maladministration  on  his   part.    Such restriction  would  be opposed to the provision  of  article 26(d)  of the Constitution.  It would cripple his  authority as  Mahant altogether and reduce his position to that of  an ordinary priest or paid servant.     We  find  nothing wrong in section 58 of the  Act  which relates  to  the  framing  of  the  scheme  by  the   Deputy Commissioner.   It is true that it is a  Government  officer and  not  the  court who is given the power  to  settle  the scheme,  but  we  think that  sample  safeguards  have  been provided in the Act to rectify any error or unjust  decision made by the Deputy Commissioner.  Section 61 provides for an appeal to the Commissioner, against the order of the  Deputy Commissioner and -there is a right of suit given to a  party who  is aggrieved by the order of the Commissioner  ,with  a further right of appeal to the High Court.    The  objection  urged  against the  provision  of  clause (3)(b)  of  section 58 does not appear to us to  be  of  The executive  officer mentioned in much substance  that  clause could be nothing else but a manager of the properties of the Math,  ad the cannot possibly be empowered to  exercise  the functions  of the Mathadhipati himself.  In any  event,  the trustee  would  have his remedy against such  order  of  the Deputy Commissioner by way of appeal to the Commissioner and also  by  way of suit as laid down in sections  61  and  62. Section  59 simply provides a scheme for the application  of the  cy pres doctrine in case the object of the trust  fails either  from the inception or by reason of subsequent  eve*.



Here  again the only complaint that is raised is, that  such order  could be made by the Deputy Commissioner.  -We  think that  this objection has not much substance.  In  the  first place,  the various objects on, which the trust funds  could be  spent  are  laid  down in the  section  itself  and  the jurisdiction  of the Deputy Commissioner is only to  make  a choice out of the several heads-. 1037 Further  an  appeal has been provided from an order  of  the Deputy Commissioner under this section to the  Commissioner. We,  therefore,  cannot  agree  with  the  High  Court  that sections 58 and 59 of the Act are invalid.    Chapter VI of the Act, which contains sections 63 to  69, relates  to  notification  of  religious  institutions   The provisions are extremely drastic in, their character and the worst  feature  of it is that no access is  allowed  to  the court to set aside an order of notification.  The  Advocate- General for Madras frankly stated that he could not  support the  legality  of these provisions.  We hold  therefore,  in agreement  with  High Court that these sections  should.  be hold to be void.    Section  70 relates to the, budget of religious  institu- tions.  Objection has been taken- only to clause (3.)  which empowers the Commissioner and the Area Committee to make any additions to or alterations in the budget as they deem  fit. A budget is indispensable in all public institutions and  we do  not think that it is per be unreasonable to provide  for the  budget of a religious institution being prepared  under the  supervision of the Commissioner or the Area  Committee. It  is  to  be noted that if the order is made  by  an  Area Committee  under clause (3), clause (4) provides  an  appeal against it to the Deputy Commissioner.   Section  89  provides  for penalties for  refusal  by  the trustee  to comply with the provisions of the Act.   If  the objectionable  portions  of  the  Act  are  eliminated,  the portion  that  remains  will  be  perfectly  valid  and  for violation  of these valid provisions, penalties can  legiti- mately be -provided.  Section 99 vests an overall revisional power   in  the  Government.   This,  in  our  opinion,   is beneficial  to the trustee, for he will have an  opportunity to  approach,  the Government in case  of  an  irregularity, error  or  omission made by the Commissioner  or  any  other subordinate officer.    The  only other point that requires consideration is  the constitutional validity of section 76 of the Act which  runs as follows:    "76.  (1)  In  respect of the services  rendered  by  the Government  and their officers, every religious  institution shall, from the income derived by it, pay to the 134 1038 Government annually such contribution not exceeding five per centum of its income as may be prescribed.    (2)Every  religious  institution, the  annual  income  of which for the fasli year immediately preceding as calculated for  the  purposes of the levy of  contribution  under  sub- section (1), is hot less than one thousand rupees, shall pay to the Government annually, for meeting the cost of auditing its accounts, such further sum not exceeding one and a  half per centum of its income as the Commissioner may determine.     (3)The  annual payments referred to in sub-sections  (1) and  (2)  shall  be made, notwithstanding  anything  to  the contrary  contained  in any scheme settled or deemed  to  be settled  under  this  Act  for  the  religious   institution concerned.



  (4)The  Government  shall pay the  salaries,  allowances, pensions   and   other  beneficial   remuneration   of   the Commissioner, Deputy Commissioners, Assistant  Commissioners and  other  officers  and  servants  (other  than  executive officers   of  religious  institutions)  employed  for   the purposes  of  this Act and the other expenses  incurred  for such purposes, including the expenses of Area Committees and the   cost   of   auditing   the   accounts   of   religious institutions."   Thus  the  section  authorises  the  levy  of  an   annual contribution  on all religious institutions, the maximum  of which is fixed at 5 per cent. of the income derived by them. The -Government is to frame rules for the purposes of fixing rates  within  the  permissible  maximums  and  the  section expressly  states  that  the levy is in  respect  of  the  I services  rendered by the Government and its officers.   The validity  of the provision has been attacked on  a  two-fold ground: the first is, that the contribution is really a  tax and as such it was beyond the legislative competence of  the State  Legislature to enact such provision.  The  other  is, that  the  contribution  being  a  tax  or  imposition,  the proceeds  of  which are specifically  appropriated  for  the maintenance   of   a  particular   religion   or   religious denomination, it comes within the mischief of article 27  of the Constitution and is hence void. 1039      So  far  as the first ground is concerned,  it  is  not disputed that the legislation in the present case is covered by  -entries  10 and 28 of List III in Schedule VII  of  the Constitution.  If the contribution 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 that list.  On the other hand, if it  is a tax, as this particular tax has not  been  provided for  in  any specific entry in any of the  three  lists,  it could  come only under entry 97 of List I or article  248(1) of the Constitution and in either view the Union Legislature alone would be competent to legislate upon it.  On behalf of the   appellant,   the  contention  raised   is   that   the contribution  levied is a fee and not a tax and the  learned Attorney  General,  who appeared for the Union of  India  as intervener in this as well as in the other connected appeals made  a  strenuous attempt to support this,  position.   The point is certainly not free from doubt and requires  careful consideration.     The  learned  Attorney-General has argued in  the  first place  that  our  Constitution  makes  a  clear  distinction ,between  taxes and fees.  It is true, as be t  has  pointed out,  that  there are a number of entries in List I  of  the Seventh Schedule which relate to taxes and duties of various sorts;  whereas the last entry, namely entry 96,  speaks  of "fees"  in respect of any of the matters dealt with  in  the list.  Extractly the same is with regard to entries 46 to 62 in  List II all of which relate to taxes and here again  the last entry deals only with "fees" leviable in respect of the different  matters specified in the list.  It appears  that: articles  II 0 and 1 19 of the Constitution which deal  with "Money  Bills"  lay down expressly that a bill will  not  be deemed to be a "Money 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 Money Bill.  Article 277 also  mentions taxes,  cesses and fees separately.  It is not  clear,  how- ever, whether the word "tax" as used in article 265 has  not



been used in the wider sense as including all other 1040 impositions like ceases and fees; and that at least seems to be  the  implication  of clause (28) of  article  366  which defines  taxation as including the imposition of any tax  or impost,  whether general, local or special.  It seems to  us that though levying of fees is only a particular form of the exercise of the taxing power of the State, our  Constitution has  placed  fees uder a separate category for  purposes  of legislation  and  at  the  end of  each  one  of  the  three legislative  lists, it has given a power to  the  particular legislature  to  legislate  on the  imposition  of  fees  in respect  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 110  and 119 referred to above  which speak  of fees for licences and for services rendered.   The question  for  our  consideration really is,  what  are  the indicia  or special characteristics that distinguish  a  fee from  a tax proper ? On this point we have been referred  to several authorities by the learned counsel appearing for the different parties including opinions expressed by writers of recognised treatises on public finance.     A neat definition of what "tax" means has been given  by Latham  C. J. of the High Court of Australia,in Matthews  v. Chicory  Marketing  Board(1).   A  tax",  according  to  the learned Chief Justice, "is a compulsory exaction of money by public authority for public purposes enforceable by law  and is  not  payment for services  rendered".   This  definition brings out, in our opinion, the esential characteristics  of a tax as distinguished from other forms of imposition which, in a general sense, are included within it.  It is said that the essence of taxation is compulsion, that is to say, it is imposed under statutory power without the taxpayer’s consent and   the  payment  is  enforced  by  law(2).   The   second characteristic  of tax is that it is an imposition made  for public  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 tax is for the purposes of  general revenue, which when collected revenues of the State.  As the (1)  60 C.L.R. 263, 276. (2)  Vide Lower Mainland Dairy v. Crystal Dairy Ltd.  [1933] A.C. 168. 1041 object  of a tax is not to confer any special  benefit  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 taxation it; that as it is a part of the common burden, the quantum of imposition  upon the taxpayer depends generally upon his capacity to pay.    Coming now to fees, a ’fee’ is generally defined to be  a charge for a special service rendered to individuals by some governmental  agency.  The amount of fee levied is  supposed to  be based on the expenses incurred by the  Government  in rendering  the service, though in many cases the  costs  are arbitrarily  assessed. Ordinarily, the fees are uniform  and no  account  is  taken of the vary  abilities  of  different recipients  to  pay(2).  These are undoubtedly some  of  the general  characteristics, but as there may be various  kinds of  fees, it is not possible to formulate a definition  that would be applicable to all cases.     As regards the distinction between a tax and a fee,  it, is  argued  in the first place on behalf of  the  respondent that a fee is something voluntary which a person has got  to pay if he -wants certain’ services from the Government;  but there is no obligation on his part to seek such services and



if  he  does  not  want the services, I  he  can  avoid  the obligation.   The example given is of a licence fee.   If  a man wants a licence that is entirely his own choice and then only  he has to pay the fees, but not otherwise.   We  think that  a careful examination will reveal that the element  of compulsion  or  coerciveness  is present  in  all  kinds  of imposition.  though in different degrees and that it is  not totally absent in fees.  This, therefore, cannot be made the sole  or even a material criterion for distinguishing a  tax from fees.  It is difficult, we think, to conceive of a  tax except  it  be something like a poll tax, 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 will  fall on those who have properties within a (1)  see  Findlay  Shirras on "Science of  Public  Finance", Vol. 1, P. 203. (2)  Vide Lutz on "Public Finance" p. 215. 1042 municipality.   Persons  who  do  not  have  houses,land  or Properties  within  municipalities, would not  have  to  pay these taxes, but nevertheless these impositions come  within the category of taxes and nobody can say that it is a choice of these people to own lands or houses or specified kinds of properties  so  that there is no compulsion on them  to  pay taxes  at all.  Compulsion lies in the fact that payment  is enforceable   by  law  against  a  man  in  spite   of   his unwillingness  or  want  of consent ; and  this  element  is present  in  taxes 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 be  taken as  the  criterion  of  this  species  of  imposition.   The distinction  between a tax and a fee lies primarily  in  the fact  that  a tax is levied he a part of  a  common  burden, while a fee is a payment for a special benefit or privilege. Fees confer a special capacity, although the special  advan- tage,  as for example in the case of registration  fees  for documents or marriage licences, is secondary to the  primary motive  of  regulation in the  public  interest(1).   Public interest seems to be at the basis of all impositions but  in a  fee  it  is some special  benefit  which  the  individual receives.   As  seligman  says it is  the,  special  benefit accruing  to the indivitual which is the reason for  payment in  the case of fees; in the case of a tax,  the  particular advantage  if it; exists at all is an incidental  result  of State action(2).      If,  as we hold, a fee is regarded as a sort of  return or  consideration  for services rendered, it  is  absolutely necessary  that the levy of fees should, on the face of  the legislative   provision,  be  co-related  to  the   expenses incurred  by  Government  in  rendering  the  services.   As indicated  in article 1 10 of the  Constitution   ordinarily there are two classes of cases where Government imposes fees upon  persons.   In  the first class  of  cases,  Government simply  grants a permission or privilege to a person  to  do something,   which  otherwise  that  person  would  not   be competent to do and extracts fees either (1)  Vide  Findlay  Shirras on "Science of  Public  Finance" Vol. 1, P. 202 (2)  Vide Seligman’s Essays on Taxation, P. 408. 1043 heavy  or  moderate  from  that person  in  return  for  the privilege that is conferred.; A most common illustration  of this  type  of cases is furnished. by the licence  fees  for



motor  vehicles.  Here the costs incurred by the  Government in  maintaining  an  office or bureau for  the  granting  of licences may be very small and the amount of imposition that is  levied is based really not upon the costs incur. red  by the  Government  but upon the benefit  that  the  individual receives.   In such cases, according to all the  writers  on public  finance, the tax element is predominant(1),  and  if the  money  paid by licence holders goes for the  upkeep  of roads  and  other  matters of general  public  utility,  the licence fee cannot but be regarded as a tax.     In  the other class of cases,- the Government does  some positive  work for the benefit of persons and the  money  is taken as the return for the work done or services  rendered. If  the  money  thus  paid is  set  apart  and  appropriated specifically  for  the performance of 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 between the tax and fees and as  said  by  Seligman,  the taxing power  of  a  State  may manifest itself in three different forms known  respectively as special assessments,fees and taxes(2). .     Our  Constitution has, for legislative purposes, made  a distinction  between  a tax and a fee and  while  there  are various  entries  in the legislative lists  with  regard  to various forms of taxes there is an entry at the end of  each one of the three lists as regards fees which could be levied in  respect  of any of the matters that is included  in  it. The implication seems to be that fees have special reference to governmental action undertaken in respect to any of these matters.   Section  76  of the Madras Act speaks  definitely  of  the contribution  being  levied  in  respect  rendered  by   the Government;  so  far it has the appearance of fees.   It  is true that religious institutions do not want these  services to be rendered to them and it (1)  Vide Spligman’s Essays on Taxation, p. 409 (2)  lbid, P. 406, 1044 may  be that they do not consider the State interference  to be  a benefit at all.  We agree, however, with  the  learned Attorney-General  that,  in  the present day  concept  of  a State, it cannot be said that services could be rendered  by the  State  only at the request of those who  require  these -services. lf in the larger,interest of the public, a  State considers  it desirable that some special service should  be done  for  certain  people, the  people  must  accept  these services,  whether  willing  or not(1) It  may  be  noticed, however,  that the contribution that has been  levied  under section  76  of  the Act has been made to  depend  upon  the capacity  of the payer and not upon the quantum  of  benefit that is supposed to be conferred on any particular religious institution.   Further the institutions,, which  come  under the  lower income group and have income less than Rs.  1,000 annually,  are  excluded  from  the  liability  to  pay  the additional  charges under clause (2) of the section.   These are  undoubtedly some of the characteristics of a ’tax’  and the imposition bears a close analogy to income-tax.  But the material  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 specified  for  defraying the expenses that the Government has to incur in  performing the  services. -All the collections go to  the  consolidated fund  of the State and all the expenses have to be  met  not out of these collections but out of the general revenues  by a proper method of appropriation as is done in case of other



Government   expenses.    That  in  itself  might   not   be conclusive, but in this case there is total absences of  any co-relation between the expenses incurred by the  Government and the amount raised by contribution under the provision of section 76 and in these circumstances the theory of a return or counter-payment or quid pro quo cannot have any  possible application  to this case.  In our opinion,  therefore,  the High Court was right in holding that the contribution levied under section 76 is a tax and not a fee and consequently  it was beyond the power of the State Legislature to enact  this provision. (1)  Vide  Findlay  Shirras on "Science of  Public  Finance" Vol. 1, P. 202. 1045   In  view of our decision on this point, the  other  ground hardly  requires consideration.  We will 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 therein, is not confined to  taxes  proper but is inclusive of all other impositions like cesses, fees, etc.   We do not think it necessary to decide this point  in the  present  case, for in our opinion on the facts  of  the present case, the imposition, although it is a tax, does not come within the purview of the latter part of the article at all.   What  is  forbidden by the article  is  the  specific appropriation  of  the  proceeds of any tax  in  payment  of expenses for the promotion or maintenance of any  particular religion  or religious denomination.  The reason  underlying this  provision is obvious.  Ours being a secular State  and there   being   freedom  of  religion  guaranteed   by   the Constitution,  both  to  individuals and to  groups,  it  is against the policy of the ,Constitution to pay out of public funds  any  money for the promotion or  maintenance  of  any particular  religion  or religious  denomination.   But  the object  of the contribution under section 76 of  the  Madras Act  is  not  the fostering or  preservation  of  the  Hindu religion  or any denomination within it.  The purpose is  to see  that religious trusts and institutions,, wherever  they exist,   are  properly  administered.   It  is   a   secular administration of the religious legislature seeks to control and the in the Act, is to ensure that the institutions  that the  object,  as  enunciated  endowments  attached  to   the religious  institutions are properly administered and  their income is duly appropriated for the purposes for which  they were founded or exist.  There is no qustion of favouring any particular  religion  or  religious  denomination  in   such cases  . In our opinion, article 27 of the  Constitution  is not  attracted to the facts of the present case.The  result, therefore,  is  that  in our  opinion  sections  21,  30(2), 31,55,56 and 63 to 69 are the only sections which should  be declared  invalid  as   conflicting  with  the   fundamental rights  of the respondent as   Mathadhipati of the  Math  in question and 135 1046 section  76(1) is void as beyond the legislative  competence 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 to this extent, but as the judgment of the  High Court  is  affirmed  on its merits, the  appeal  will  stand dismissed with costs to the respondent. Appeal dismissed.