# H. H. SHRI SWAMIJI OF SHRI ADMAR MUTI, ETC v. THE COMMISSIONER, HINDU RELIGIOUS & CHARITABLE ENDOWMENTS DEPARTMENT & ORS

- **Citation:** [1980] 1 S.C.R. 368
- **Court:** Supreme Court of India
- **Decided:** 1979-08-27
- **Bench:** Y. v. CHANDRACHUD, v. R. KRISHNA IYER, N. L. Untwalta, P. N. Shinghal, A. D. KosHAL
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/h-h-shri-swamiji-of-shri-admar-muti-etc-v-the-commissioner-hindu-religious-7762
- **Pages:** 28

## Headnote

States Reorganisation Act, 1956-A district transferred from one State to
another-Continued application of the law applicable in the former State even
after transfer-Validity of.
Section 109-Commissioner of Religious Endowments-A body corpora1eCo:nnlissioner, if could exercise powers under the Act creating
hinl as body
corporate if no directions issued by the Central Government.
Fees and Tax-Nature of.
The re.ligious Mutts, of which the (appellants were Mathadhipatis,
\Vere
situated in the District of South Kanara which formerly was in the State of
Madras.
Section 76(1) of the Madras Hindu Religious and Charitabie Endowments Act, 1951, the law applicable to the Mutts, provides tb:it in respect
of services rendered by the Government and their officers and for defraying
the expenses incurred on account of such services, every religious institution
shall, from the income derived by it, pay to the Commissioner annually such
contribution not exceeding 5% of its income as may be prescribed. Consequent upon the reorganisation of States in 1956 the District of South Kanara
was transferred to the State of Mysore.
By reason of the provisions of the
States Reorganisation Act the Madras Act of 1951 continued to apply to the
Mutts in the district even after their transfer to the State of My-sore.
The
Government ot Mysore issued a notification authorising the Commissioner for
Settlement and Charitable Endowments for ~Iysore to exercise the functions
of the Commissioner under the Madras Act.
In A.pril, 1964 when the Commissioner of Hindu Religious and Charitable
Endowments, Mysore issued a notice to the appelJants demanding payment of
certain contributions for the years 1957 to 1960 the appellants denied their
liability to pay the amounts on the ground that (1) the Commissioner had no
power to demand payment of contributions for the period
subsequent
to
November, 1956 (when the District was transferred from the former State of
1\{adras to the State of Mysore); (2) that the demands were excessive and
bore no relationship with the services rendered by the department and (3)
that the expenditure incurred on the maintenance of staff and officers of the
Comn1issioner's office could not wholly or in part be recovered
from the
appellants by way of contributions under s.76(1) of the Madras Act of !951.
All the contentions v:ere rejected by the Commissioner.
The appellants
thereupon filed writ petitions in the High Court impugning the C:ommi'isioner's
crders.
The High Court dismissed the writ petitions.
•
'
A,
•
H. H. SWAM!JI V. COMMISSIONER
369
On appeal to this Court it was contended on behalf of the appellants that
(1) the notification issued by the Mysore Government authorising: the Comrnitsioner to exercise the functions of the Commissioner under the Madras
Act was invalid because the Commissioner being a Corporation Sole the only
authority competent to issue a notification in this behalf under s.109( I) of the
States Reorganisation Act 1956 was the Central Government; (2)
that the
demands made by the Commissioner for payment of fees were illegal because
cc.nsidering the services rendered to them they were excessive; (3) that the
application of the Madras A.Ct to one district only offends against the guarantee of equality contained in Art. 14 because the Mutts. were required to
pay fees '\Vhich similar institutions situated in other areas of the State were
not required to pay and ( 4) th~t though the i:-ihir.l application of the Madras
Act of 1951 to the District was not violative, its continued application offends
against the guarantee of equality.
Dismis5ing the appeals,
HELD: I. The provisions of s.109(1) of the States Reorganisation Act do
not support the argument that the Commissioner being a Corporation Sole the
on1y ~uthority competent to isiiiue the notification under s. 122 was the Central
Govern1nent.
Though the body corporate hai to functioa within the scope
of and in accordance with the directions iiiued by the Central Government
fro

## Text

_Characters 0–39,308 of 78,619. This is a partial read: ask again with offset=39308 for what follows._

A
B
c
D
E
F
G
H
368
H. H. SHRI SWAMIJI OF SHRI ADMAR MUTI, ETC.
v.
THE COMMISSIONER, HINDU RELIGIOUS & CHARITABLE
ENDOWMENTS DEPARTMENT & ORS.
August 27, 1979
[Y. v. CHANDRACHUD, C.J., v. R. KRISHNA IYER, N. L. UNTWALTA,
P. N. SHINGHAL AND A. D. KosHAL, JJ.]
States Reorganisation Act, 1956-A district transferred from one State to
another-Continued application of the law applicable in the former State even
after transfer-Validity of.
Section 109-Commissioner of Religious Endowments-A body corpora1eCo:nnlissioner, if could exercise powers under the Act creating
hinl as body
corporate if no directions issued by the Central Government.
Fees and Tax-Nature of.
The re.ligious Mutts, of which the (appellants were Mathadhipatis,
\Vere
situated in the District of South Kanara which formerly was in the State of
Madras.
Section 76(1) of the Madras Hindu Religious and Charitabie Endowments Act, 1951, the law applicable to the Mutts, provides tb:it in respect
of services rendered by the Government and their officers and for defraying
the expenses incurred on account of such services, every religious institution
shall, from the income derived by it, pay to the Commissioner annually such
contribution not exceeding 5% of its income as may be prescribed. Consequent upon the reorganisation of States in 1956 the District of South Kanara
was transferred to the State of Mysore.
By reason of the provisions of the
States Reorganisation Act the Madras Act of 1951 continued to apply to the
Mutts in the district even after their transfer to the State of My-sore.
The
Government ot Mysore issued a notification authorising the Commissioner for
Settlement and Charitable Endowments for ~Iysore to exercise the functions
of the Commissioner under the Madras Act.
In A.pril, 1964 when the Commissioner of Hindu Religious and Charitable
Endowments, Mysore issued a notice to the appelJants demanding payment of
certain contributions for the years 1957 to 1960 the appellants denied their
liability to pay the amounts on the ground that (1) the Commissioner had no
power to demand payment of contributions for the period
subsequent
to
November, 1956 (when the District was transferred from the former State of
1\{adras to the State of Mysore); (2) that the demands were excessive and
bore no relationship with the services rendered by the department and (3)
that the expenditure incurred on the maintenance of staff and officers of the
Comn1issioner's office could not wholly or in part be recovered
from the
appellants by way of contributions under s.76(1) of the Madras Act of !951.
All the contentions v:ere rejected by the Commissioner.
The appellants
thereupon filed writ petitions in the High Court impugning the C:ommi'isioner's
crders.
The High Court dismissed the writ petitions.
•
'
A,
•
H. H. SWAM!JI V. COMMISSIONER
369
On appeal to this Court it was contended on behalf of the appellants that
(1) the notification issued by the Mysore Government authorising: the Comrnitsioner to exercise the functions of the Commissioner under the Madras
Act was invalid because the Commissioner being a Corporation Sole the only
authority competent to issue a notification in this behalf under s.109( I) of the
States Reorganisation Act 1956 was the Central Government; (2)
that the
demands made by the Commissioner for payment of fees were illegal because
cc.nsidering the services rendered to them they were excessive; (3) that the
application of the Madras A.Ct to one district only offends against the guarantee of equality contained in Art. 14 because the Mutts. were required to
pay fees '\Vhich similar institutions situated in other areas of the State were
not required to pay and ( 4) th~t though the i:-ihir.l application of the Madras
Act of 1951 to the District was not violative, its continued application offends
against the guarantee of equality.
Dismis5ing the appeals,
HELD: I. The provisions of s.109(1) of the States Reorganisation Act do
not support the argument that the Commissioner being a Corporation Sole the
on1y ~uthority competent to isiiiue the notification under s. 122 was the Central
Govern1nent.
Though the body corporate hai to functioa within the scope
of and in accordance with the directions iiiued by the Central Government
from time to time, its power to function under the parent Act is not conditional on the issuance of directions by the Central Government. lf directions
are issued by the Central Government they have to be complied with by it.
If on the other hand no directions are issued the powers and functions of the
authority remain unimpaired and can neverthele11s be exercised as contemplated
by the Act which creates the body corporate. [375C-D]
2.(a) Information on matters like the date of constitution of the Religious
Endown1ent Fund, annual salary budget of the Commissioner's
establishment
at different places and the total number of institutions to which services Were"
rendered sought by the appellants would be within the knowledge of the respondents and could have been supplied. For the purposes of finding whether
B
c
D
E
there was a correlation.ship between the services rendered to the fee payers
F
and the fees charged it is necessary to know the cost incurred for organisbg
and rendering the services. But mattera involving consideration of such correIationship are not required to be proved by mathematical formula. What has
to be seen is whether there is a fair correipondence between the fee charged
and the cost of services rendered to the fee·p11.yers as a class.
A vivisection of
the ;11nounts spent by the Commissionet'i establishment would have
been
speculative.
It cannot be sai~ that substantial prejudice had been caused to
G
the appellants by reason of the non-•upply of the information sought by them.
[376 F-HJ
(b) It is well-established that a tax is levied as a part of a common burden
while a fee is for a special benefit or privilege. Public interest is at the basis
of all impositions; but in a fee it is some special benefit which the individual
receives \vhich is the basis of imposition. A fee beine a levy iI consideration
of rendering service to a particu1a.r type, correlation between the expenditure
and the levy must exist but a levy will not be regarded as a tax merely because of the absence of uniformity in its incidence or be1eause of compulsion
D
A
B
370
SUPREME COURT REPORTS
[1980] 1 S.C.R.
in the co1Jection thereof or because some of the contributories did not obtain
the same degree of service as others may. [377F-HJ
In the instant case there were some institutions whose annual income was
over Rs. 200 and a large number whose annuM income was le-ss than Rs. 200.
The smaller institutions require and receive services from the department as
much as the bigger class and the amounts collected by way of fees were just
enough to balance the bulk of the expenditure incurred for financing the conduct of ttffairs of the department which is charged with the duty and obliga·
tion of rendering services to the institutions directly and to the pub1ic which
patronises or visits them indirectly.
[378G-H]
Tlze Commissioner, Hindu Religious Endowment, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt.
[1954]
SCR,
1005,
H. H.
Sudlzundra Thirtha Swami•r v. Commissioner for Hindu Religious & Charitable
€::
Endowments, Mysore. [1963] Suppl. 2 SCR. 302, Kewal Kris/um Puri and Anr.
etc. v. State of Punjab and ors. etc. [1979] 3 SCR 1217, Hingir Ra1npur Coal Co.
Ltd. & Ors. v. State of Orissa and Ors. [1961] 2 SCR 537,
Indian Mita atid
AficaniJe lndustriL·s Ltd. v. State of Bihar & ors. [1971] Suppl. SCR. 319, Secretary, Governrnent of Madras, Home Departn1ent and Anr. v. Ze11itl1 Lamp &
Electrical Ltd. [19731 2 SCR 973 referred to.
D
E
F
(c) In the absence of any acceptable evidence showing that the departme;t
had built up ltlrge aCcumulations or reserves out of the fees collected from
the various institutions and considering that services were required
to
be
rendered to a large class of institutions consisting of major and minor insti·
tutions it cannot be said that there was no approximation or correspondence
between the fees levied on the appellants and the services rendered to the
class to which they belonged.
[379C-D]
3. The Madras Act of 1951 in its application to the district
of
South
Kanara (now in the State of Karnataka) does not infringe Art. 14
of the
Constitution. By a long line of decisions this Court has
laid down that
dissimilar treatment does ,not necess.ttrily offend against
the
guarantee of
equality contained in Art. 14 so long as there is a valid basis for classifica·
tion and the classification bears a neXU! with the object of the
impugned
provisions. In matter1 arising out of reorganisation of
States,
continued
application of laws of a State to territories which were within that State but
which became a part of another State, is not discriminatory since classification
rests on geogte.phical considerations founded on historical reasons.
. .,,,
•
Bhaiyalal Shukla v. State of Madhya Pradesh [1962] Supp. 2 SCR 257,
~'
Pandit Banarsi Das Bhanot v. State of M.I'. [1959] S.CR 427, Anant Prasad
Lakshminivas Ganeriw•l v. State of A.ndhra Pradesh and other [1963] Suppl.
G
I SCR 844, The State of Madhya Pradesh v. Bhopal Sugar
Industries
Ltd.
[1964] 6 SCR 846, Vishwesha Thirtha Swamiar & Ors. v. State
of Mysore
& Anr. [1972] 1 SCR 137 referred to.
ff
State of Rajasthan v. Rao Manohar Singhji [1954] SCR 996 and Jia Lal v.
The Delhi Administration [1963] 2 SCR 364 distinguished.
4. Section 119 of the States Reorganisation Act, 1956 was intended to
serve ·a temporary purpose.
But Acts, Rules and Regulations whose constitutional validity is upheld and c.tin be upheld only on the ground that no
violation per se of Art. 14 is involved in the application cf different laws
,
•
'
•
H. H. SWAMIJI V. COMMISSIONER
371
to different components of a State, if the area to which unequal laws are
applied has become a part of the State as a result of the States· Reorganisation, cannot continue to apply to such area indefinitely. An indefinite extension and application ~f unequal laws for all time to come would militate
against their true character as temporary measures taken in order to serve
a temporary purpose. The decision to withdraw application of unequal laws
to equals cannot be delayed unreasonably because the relevance of historical
reasons which justify the application of unequal laws is bound to wear out
with the passage of time. But it cannot, however, be said that the continued
application of the Act to the District became violative of Art. 14 as immediately as during the period under consideration, which was just five or six
years after the paSsing of the States Reorgtanisation Act. Nor bas the continued application of that Act until now is shown to be violative of Art. 14.
[387E-G]
Narottam Kishore Dev Varma and Ors. v. Union of India
and
A.nr.
(1964] 7 SCR 55 referred to.
Shingbal J. (concurring in the final decision).
I. In the absence of neces9ary pleadings by the appellants it was not
necessary to consider whether the continued application Of the Madras Act
A.
B
c
to the district was violative of Art. 14 of the Constitution. It cannot also
D
be said that inequality is writ large on the face of the impugned statute in
its application to the district tind that it is perilously near the periphery of
unconstitutionality merely because of the lapse of..-:Z.3 years. [395A]
2. Pleadings or a statement of material facts are of
vital
importance
because absence of all the necessary facts in a petition for the redress of a
grievance denies an opportunity for the opposite party to formulate its case.
The parties would not know the points at issue and therefore the controversy
E
would be confined to any point or points. If a petition filed under Art. 226
or Art. 32 alleging infringement of Art 14 is singularly deficient in furnish·
ing particulars justifying the allegation, but makes out only a mere plea of
differential treatment, that, by itself, would not be sufficient to enable the
Court to examine the validity of the petitioner's claim. [389G·H; 392H]
In the instant case the iole ground on which the appellants
rested their
plea of discrin1ination was the continued application of the provisions of the
Act to the district eight or nine yeari after the reorganisation of States and
that failure to "unify" the legislation on the subject of Hindu Religious and
Charitable Endowments was wholly discriminatory. That is quite
untenable
in view of the decision in Bhopal Sugar Industri~s case.
The other plea of
mixing of Mutts with temples is not quite intelligible. It had not even been
referred by the counsel during the
ar~ments. The grounds
which
had
been taken were, therefore, untenable.
[394A·C]
3. It is impossible to lay down any definite time limit within which the
State has to make the necessary adjustment for the purpose of effectuating
the equality clause of the Constitution. While differential
treatment could
not be permitted to assume permanency without a rational basis to support
it as year! go by a mere plea of differentilal treatment is by itself not sufficient
to nttract the application of Art. 14.
State of Madhya Pradesh v. Bhopal Sugar Industries Ltd. [1964] 6 SCR 846
f~llowed.
F
G
H
A
B
372
SUPREME COURT REPORTS
[1980] 1 S.C.R.
CNIL APPELLATE JURISDICTION:
of 1968.
Civil Appeal Nos. 1445-144g
From the Judgment and Order dated 25-8-1967
of the Mysore
High Court in Writ Petition Nos. 1575, 1576, 1579/65 and 1439/
66.
AND
Civil Appe,aJ Nos. 1720-1722 of 1968
From the Judgment and Order dated 25-8-1967 of the Mysore
High Court in Writ Petition Nos. 1649/64, 1650/64 and 1651/64.
c
H. B. Datar, R. B. Datar and A. K. Srivastava for the Appellants
in C.A. Nos. 1445-48/68.
A. K. Srivaistava and Vineet Kumar for the Appellants in C.A.
Nos. 1720A-1722/68.
V.A. (Dr.) Sayed Mohamad and N. Ne/tar for RR 1-3 in C.A.
D
Nos. 1445-1448/68 and RR in C.A. Nos. 1720A-1722/68.
E
F
R. P. Bhat and Girish Chandra for RR 4 in C.A. 1445-1448/68.
The Judgment of Y. V. Chandrachud, C.J., V. R. Krishna, Iyer,
N. L. Untwalia and A. D. Koshal, JJ. was delivered by Chandcachud,
C.J. P. N. Shinghal, J. gave a separate Opinion.
CHANDRACHUD, C.J.
These seven appeals by certificate are directed
against the judgment dated Angus! 25, 1967 given by the High Court
of Mysore in Writ Petitions Nos. 1649, 1650 and 1651 of 1964, Writ
Petitions Nos. 1575, 1576 and 1579' of 1965 and Writ Petitions No.
1439 of 1966. These Writ Petitions were filed by the appellants under
article 226 of the Constitution praying that the demand notices issued
by the Commissioner for .Hindu Religious and Charitable Endowments
of Mysore be quashed and for a writ of mandamus restraining the
respondents from taking any action in pursuance thereof.
Until November 1, 1956, when the States Reorganisation Act, 37
G
of 1956, came into force the District of South Kanara was a part of
the former State of Madras. As a result of the States Reorganisation
Act that District became a part of the State of Mysore, now the State
vf Kamataka.
•
The Madras Legislature passed an Act called the Madras Hindu
,.,_
H
Religious and Charitable Endowments Act, 19 of 1951 ("the Madras
Act of 1951"), to provide for the better administration and governance of Hindu Religious and Charitable Institntions and Endowments
f
•• •
_y ,.
•
H. H. SWAMIJI v. COMMISSIONER (Chandrachud, C.J.)
373
in the State of Madras Section 76(1) of the Act, as it stood originally, provided that in respect of the services rendered by the Government and their officers, every religious institution shall, from
the
income derived by it. pay to the Government annually such contribution not exceeding 5 per centum of its income as may be
prescribed.
This proviiion and some other provisions of the
Act
were · challenged in the Madras Hi gb Court on behalf
of the Shirur Mutt and
others.
The challenge
was
upheld
by the High Court and the appeal filed therefrom by the
Commissioner, Hindu Religious Endowments, Madras, was dismissed
by this Court in The Comnlissioner, Hindu Religious Endowments,
Madras v. Sri Lakshmindra Thirtha Swamiar of Sri S!zirur Mutt.(I)
Section 76(1) was held void by this Court on the ground that the
provision relating to the payment of annual contribution contained in
it was in the nature of tax and not fee and therefore it was beyond the
legislative competence of the Madras State Legislature to enact the
provision. The Madras Legislature amended section 76(1) of the Act
so as to provide that in respect of the services rendered by the Government and their officers, "and for defraying the expenses incurred on
account of such services", every religious institution shall,, from the
income derived by it, pay to the Commissioner annually such contribution not exceeding five per centum of its income as may be prescribed.
The validity of the amended section, was upheld by this Court in H. H.
Sudhundra Thirtha Swamiar v. Commissioner for Hindu Religious &
Charitable Endowments, Mysore.( 2)
After the formation of the new State of Mysore under the States
Reorganisation Act, 1956, laws which were in force in the areas which
were formerly comprised within the Madras State, continued to apply
to those areas notwithstanding the fact that they became part of the
new State of Mysore. Section 199 of the Act of 1956 provides that the
provisions of Part II ('Territorial Changes and Formation of new
States') shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day
e.xtends or applies, and territorial references in any such law to an
existing State shall, until otherwise provided by a competent Legislature
or other competent authority, be construed as meaning the territories
within that State immediately before the appointed day. It is by reason
of this section that the Madras Act of 195! continued to apply to the
South Kanara District which prior to November !, 1956, was a part of
(1) [1954] S.C.R. 1005.
(2) [1963] Suppl. 2 S.C.R. 30~.
A
B
c
D
E
F
G
H
374,
SUPREME COURT REPORTS
[1980] 1 S.C.R.
A
the Madras State but which became after that date a part of the Mysore
State.
We will refer to the facts of Civil Appeal
1445 of 1968 which
arises out of Writ Petition 1575 of 1965. The facts of the other appeals
are in material respect similar. The appellant who is the Mathadhipati
8
of Shri Admar Mutt in the South Kanara District received a notice dated
April 24, 1964 from the Commissioner, Hindu Religious and Charitable Endowments, Mysore,, demanding payment of contribntion for Fasli
years 1367 to 1370 which correspond to calendar years 1957 to 1960.
By the notice, the Commissioner demanded a sum of Rs.12, 724.60
for the Fasli year 1367, Rs. 12,274.60 for the Fasli year 1368,
<:
Rs. 11,270.70 for the Fas!i year 1369 and Rs. 12,169.20 for the Fasli
year 13 70. The appellant disputed his liability to pay the contribution
on the ground that the Commissioner was not entitled to make any
demand for the period subsequent to November 1956,
that
even
assuming that he had the lawful authority to make the demands, tht'l
amount demanded was excessive bearing no relationship
with
the
D
serviceg rendered by the Department and that the expenditure which
was incurred on the maintenance of the office and staff of the Commissioner and the Deputy Commissioner could not wholly or in part
be recovered from the appellant by way of contribution under section 7 6 ( 1) of the Madras Act of 19 51.
E
Since the Commissioner did not accept the appellants' contention,
·F
the appellants filed the Writ Petitions in the Mysore High Court asking
that the demand notices be quashed as illegal.
Those Writ Petitions
were dismi>>ed by the High Court but it has given to the appellants
certificatei to appeal to this Court under articles 133(1)(a) and (c)
of the Constitution.
Simultaneously with the States Reorganisation Act coming into
force, the Government of Mysore issued a notification under section 122
of that Act ~uthorising the Commissioner for Settlements and Charitable Endowments for Mysore to exercise the functions of the Commissioner under the Madras Act of 1951. It is contended on behalf of the
-G
appellants that the aforesaid notification lacks law's authority because,
the Commisiioner being a Corpcration Sole, the only authority which is
competent to issue the notification under section 122 is the Central Government, by reason of the provisions contained in section 109 ( i) of
the S.R. Act. It is true that by section 80 of the Madras Act of 1951,
the Commisgioner is constituted a Corporation Sole with a perpetual
'II
succession. But the provisions of section 109 (1) of the S. R. Act on
which the argument rests do not support the argument. The relevant
part of section 109 (!) provides that where any body corporate has been
. "
•
'
'
_;...
'
•
• •
•
H. H. SWAMIJI v. COMMISSIONER (Chandrachud, C.J.)
375
constituted under a State Act for an existing State, any part of which is
by virtue of the1 provisions of Part II of the S.R., Act transferred to any
other State, then notwithstanding such transfer, the body corporate shall,
as from the appointed day continue to function and operate in those
areas in respect of which it was functioning and operating immediatdy
before that day, "subject to such directions as may from time to time
be issued by the Central Government". Under this provision, it is com·
pe!ent to the Central Government to issue directions to a body corporate
and by reason of sub-section 2 of section' 109, any direction issued by
the Central Government under sub-section ( 1) shall include a direction
that any law by which the said body corporate is governed shall have
effect subject to such exceptions and modifications as may be specified
in the directions. In other words, the body corporate has to function
within the scope of and in accordance with the directions issued by the
Central Government from time to time.
But the power of the body
corporate to function under the parent Act is not conditional on the
issuance of directions by the Central Government. If directions are
issued by the Central Government, they have to be complied with by the
body corporate. If no directions are issued, the powers and functions
of the authority remain unimpaired 'and can nevertheless be exercised
as contemplated by the Act which creates the body corporate.
The second contention made on behalf of the appellants is that
the demands made by the Commissioner for the payment of fees is
illegal because, considering the services
rendered to them,
the
demands are clearly excessive. In other words the argument is that
there is no quid pro quo between the services rendered by the State
to the appellants and the fees which the Commissioner has called
upon them to pay.
The affidavit of Shri Annaji Rao in support of Writ Petition 1575
of 1965 filed by the Admar Mutt contains the following averments
directed to establishing the absence of quid pro quo. It is stated in
paragraphs 14 to 18 of the said affidavit that,
( 1) in the district of South Kanara, there are about 31 O
major religious institutions which arc dealt with by
the establishment of the Commissioner. Out of theie,
only 30 have an annual income exceeding R:s.20,000/-.
Out of these 30, 17 are Mutts and out of these 17
9 are situated in Udipi, South Kanara.
'
(:!) the 30 major institutions are dealt with by the Deputy
Commissioner, South Kanara, Mangalore, under the
powers delegated to him by the Commissioner. The
remaining 280 Institutions are dealt with
by the
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
376
SUPREME COURT REPORTS
(1980] 1 S.C.R,
Assistant Commissioner who has a separate establishment of his own;
(3) the Deputy Commissioner, who deals with the 30 major
institutions, utilises the services of two Clerks and
one Stenographer in
his office at Mangalore, the
expenditure on whose salary cannot exceed Rs.6,000/-
per annum approximately. The only work that is being
done by the Deputy Commissioner in respect of the
Mutts is to receive the dr!J.ft Annual Budgets submitted
by them and to make his remarks thereon. A service
of this nature cannot cost more than Rs.200/- per
annum;
( 4) for the petty services which are being renderd to the
appellants, the five Udipi Mutts have been called upon to pay a sum of Rs. 30,000/- for the four years
in question.
A sum of Rs. 25,000/- is demanded
from the other four Mutts for the
same period.
Apart from these 9 Mutts, there are 8 other Mutts
and 13 other major institutions from whom a sum
of Rs. 50,000/- has been demanded.
These demands are grossly uncorrelated to the cost of services
rendered to the appellants.
f
On December 20, 1966 an ap!ication was filed in the High Court
on behalf of the appellants asking that the respondents be directed
to furnish the necessary particulars regarding, inter alia, (i) the date
when tke Religious Endowments Fund was constituted ; (ii) the de--
mands made in respect of the majoc institutions in South Kanara;
(iii) the salaries payable to the establishments of the Commissioner
and the Deputy Commissioner; (iv) the functions discharged by the
Deputy Commissioner in respect' of Mutts; (v) the expenditure incurred by the Commissioner's office in Mangalore and in Bangalore
and (vi) the total number of institutions controlled by the Department in the four areas which were formerly parts of other States but
which had become a part of the State of Mysore under the States
ReorganisatiQn Act.
The information sought by the appellants could have been supplied
by the respondents because matters lil::e the date of constitution of
the Fund, the annual salary budget of the Commissioner's establishment at different places and the total number of institutions to
which services were rendered would be within their speci~l knowledge.
For the purpose of finding whether there is a correlationship between
the services rendered to the fee payers and the fees charged to them, it
. ~
•
' ..
,
,
'
I •
•.
•
H. H. SWAMIJI v. COMMISSIONER (Chandrachud, C.J.)
377
is necessary to know the cost incurred for organising and rendering
the services.
But matters involving consideration of such a correla·
tionship are not required to be proved by a mathematical formula.
What has to be seen is whether there is a fair correspondence between
the fee charged and the cost of services rendered to the fee payers
as a class.
The further and better particulars asked for by the appellants under Order VI, rule 5 of the Civil Procedure Code, would
have driven the court, had the particulars been supplied, to a laborious and fruitless inquiry into minute details of the Commissioner's
-departmental budget.
A vivisection of the amounts spent by the
Commissioner's establishment at different places for various purposes
cand the ad-hoc allocation by the court of different amounts to different
heads would at best have been speculative. It would have been no
more possible for the High Court if the information were before it,
than it would be possible for us if the information were before us,
to find out what part of the expenses incurred by the Commissioner's
oestablishment at various places and what part of the salary of his
staff at those places should be allocated to the functions discharged
by the establishment in connection with the services rendered to the
appellants. We do not therefore think that any substantial prejudice
has been caused to the appellants by reason of the non-supply of the
information sought by them.
The necessity for establishing quid pro quo between the fee and
the cost of services rendered is a matter which is no longer open to
doubt or debate.
Several decisions of this Court have considered
that question, beginning perhaps with the decision in the Shirur Mutt
case (supra) and ending (hopefully) with the recent judgment
delivered by a Constitution Bench of this Court in a large group
of Market Fee cases from Punjab and Haryana in Kewal Krishan Puri
and Anr. etc. v. State of Punjab and Ors.(') etc.
In the Shirur Mutt case (supra) in which the levy under the un-
.imended section 76(1) of the Madras Act of 1951 was held to be a
tax Mukherjea, J ., who delivered the judgment of the Court, said that
the distinction between a tax and a fee lies primarily in the fact that
a tax is levied as a parr of a common burden while a fee is for a
special benefit or privilege.
Public interest, according to the Court,
is at the basis of all impositions but in a fee it is some special benefit
which the individual receives.
After this decision, section 76 was
·amended by the Madras Legislature and the amended section was
upheld by this Court in Sudhundra Thirtha Swamiar case (supra).
It was held in that case that a fee does not cease to be of that character
·merely because there is an element of compulsion or coersiveness
(I) [1979] 3 S.C.R. 1217
A
n
c
D
E
F
G
H
A
B
c
D
F
G
R
378
SUPREME COURT REPORTS
(1980] 1 S.C.R.
present in it, nor is it a postulate of a fee that it must have direct
relation to the actual service~ rendered by the authority to the individual who obtains the benefit of the service.
Shah, J., who spoke
for the Court, emphasised that "if with a view to providing a specific
service, levy is imposed by law and expenses for maintaining the service are met out of the amounts collected, there being a reasonable
relation between the levy and the expenses incurred for rendering the
service, the levy would be in the nature of a fee and not in the nature
of a tax".
In other words, "a fee being a levy in consideration of
rendering service of a particular type, correlation between the expenditure by the Government and the levy must undoubtedly exist, but a
levy will not be regarded as a tax merely because of the absence of
uniformity in its incidence, or because of compulsion in the collection
thereof, nor because some of the contributories do not obtain the same
degree of service as others may".
In Hingir Rampur Coal Co. Ltd. &
Ors. v. State of Orissa and Ors.,{'') the Court while upholding the
levy of fee said through Gajendragadkar, J. that the scheme of the Act
showed that the cess was levied against the class of persons owning mines
in the notified area and it was levied to enable the State Government to
render specific services to that class by developing the notified mineral
area. In Indian Mica & Micanite Industries Ltd. v. Str:, of Bihar &
Ors.,( 2 ) Hedge, J. who spoke for the Court said that before any-levy
can be upheld as a fee, it must be shown that the levy has "reasonable
correlationship" with the services rendered by the Govermnent to the fee
payer but that it will be impossible to expect an exact correlationship.
According to the learned Judge, the correlationsbip expected is one of a
general character and not as of arithmetical exactitude. In Secretary,
Government of Madras, Home Department and Anr. v. Zenith Lamp &
Electrical Ltd. ( 3) where the question was as regards the validity of
court fees, Sikri, C.J. speaking for the Court, pointed out that there
must be a "broad correlationship" between the fees collected and
the cost of administration of civil justice and that each case has t1>
be judged from a reasonable and practical point of view for finding
out the element of quid pro quo.
All of these decisions have been discussed and the principles laid down therein reaffirmed by this Court in
the Punjab and Haryana Market Fee cases (supra) in which the judgment was delivered by one of us, namely, Untwalia, J.
It is clear from the various facts mentioned by the respondents
in their affidavit in the High Court that under the supervision and
control of the Commissioner, there are as many as 324 institutions
(I) [1961] 2 S.C.R. 537.
(2) [1971] Suppl. S.C.R. 319.
(3) [1973] 2 S.C.R. 973.
•
,
•
H. H. SWAMIJI v. COMMISSIONER (Chandrachud, C.J.)
379
with an income of over Rs. 200/- per annnm and 1796 institutions
with an income of less than Rs. 200 /- per annum.
The latter
class of smaller institutions requires and receives services from the
Department as much as the former class of bigger institutions does.
The amounts collected by the levy of fees on these institutions was
just enough to balance the bulk of the expenditure incurred, at Ie.ast
during the period under review, for financing the conduct of affairs of
a Department which is charged with the duty and obligation of
rendering services to the institutions directly and to the public which
patronis'es or visits them indirectly.
The rules framed under the Madras Act of 1951 prescribed a fee
varying from 3 to 5 per cent of the annual income of the institutions.
The figures furnished by the Commissioner in the third statement
dated August 10, 1967 which was filed in pursuance of the directive
issued by the High Court show that the total demand made cin all the
religious institutions for fees during the years 1957 to J 964 amounted
to Rs. 8,80,389/- while the allocable expense for the services was
Rs. 7,54,160/-. It is not without significance that though the total
demand made on the Mutts during the said period was in the sum
of Rs. 3,64,59'1/-, the contribution received from the Mutts was
Rs. 24,526/- only. In the absence of any acceptable evidence showing that the Department had built up large accumulations or reserves
out of the fees collected from the various institutions and considering
that services are required to be rendered to a large class of institutions
consisting of major and minor institutions, we do not think that we
can positively come to the conclusion that there is no approximation
or correspondence between the fees levied on the appellants .and the
services renderd to the class to which they belong. The second contention therefore fails.
The third and last contention made by the learned counsel for
the appellants is that the application of the Madras Act of 1951 to
one district only of the State of Karnataka offends against the guarantee of equality contained in article 14 of the Constitution which provides that the State shall not deny to any person equality before the
law or the equal protection of the laws within the territory of India.
It is urged that as a result of the application of the Madras Act of
1951 to the Mutts and temples in the South Kanara District, they are
required to pay fees under the Act which similar institutions situated
in other areas of Karnataka do not have to pay.
The burden thus
imposed on the appellants is said to be an act of hostile discrimination and therefore unconstitutional.
In support of this argument counsel has drawn our attention to
certain decisions of this Cou;t which we will presently examine but
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
380
SUPREME COURT REPORTS
[1980] l S.C.R.
before doing ilO, we must recall the background in which the Madras
Act of 1951 became applicable to the South Kanara District of the
State of Mysore, now the State of Karnataka.
To recapitulate
briefly, the South Kanara District which was formerly a part of the
State of Madras, became a part of the State of Mysore as a result of
the Reorganiiation of States on November 1, 1956. It is by reason of
the provisions of the States Reorganisation Act, 1956 that the Madras
Act of 1951 continues to apply to the South Kanara District notwithstanding the fact that it is no longer a part of the State of Madras. Section 119 of the S. R. Act provides to that effect.
In State
of Rajasthan v.
Rao Manohar Singhji(')
three
Ordinances, No. XX.VII of 1948 and Nos. X and XV of 1949 were
challenged on the ground, inter alia, that after final formation of the
State of Rajasthan in May, 1949 the Ordinances remained in force
in a part of the State with the result that while Jagirs in a part of the
State were managed by the State, the Jagirs in the rest of the State
were left untouched and remained with the Jagirdars. Section 8-A,
which was inserted in Ordinance XXVII of 1948 by section 4 of Ordinance X of 1949 and was amended by section 3 of Ordinance XV
of 1949, provided that the revenue including taxes, cesses and other
revenue from forests which was until then collected by J agirdars shall
in future be collected by and paid to the Government. After deducting the collection charges and other expenses, the Government was to
pay back the revenue to the Jagirdars concerned.
This ca•e is distinguishable for the simple reason that the decision
turned on the application of article 13 of the Constitution and the
case did not involve coruiderations arising out of the provisions of
the States Reorganisation Act.
The respondent therein was a Jagirdar in the former State of Mewar which was integrated in April 1948
to form what was known as the former United State of Rajasthan.
In April ~nd May 1949 that State was amalgamated with the former
States of Bikaner, Jaipur, Jaisalmer and Jodhpur and the
former
Union of Matsya to form the State of Rajasthan. 'The three Ordinances in question were issued by the former United State of Rajasthan, as a result of which the management of the Jagirs in the State,
including those in Mewar, was assumed by the State. After the final
formation of the State of Rajasthan in May 1949, the Ordinances remained in force in a part of the State on\y with the result that the
· Jagirdars of only a part of the State could not coJlect their rents while
Jagirdars in other areas like Bikaner, Jaipur, Jaisalmer, Jodhpur,
and the Matsya Union were under no such disability, since there was
(I) L!954] S.C.R. 996.
•
•
..
•
..
j
H. H. SWAMIJI v. COMMISSIONER (Chandrachud, C.J.)
381
no such law in those areas.
But when the integration of April and
May, 1949. took place, the discrimination exhibited itsel~ not by
virtue of anything inherent in the impugned Ordinances but by reason
of the fact that Jagirdars of one part of the State were subjected to
a disability while those in the other parts remained wholly unaffected.
As observed by this Court in its judgment, this was an obvious case
of discrimination not supported on the ground that it was based upon
a reasonable classification.
The discrimination was not open to any
exception until the Constitution came into force on
January
26,
1950 when by reason of Article 13, all laws in force in the territory
of India immediately before the commencement of the Constitution
in so far as they were inconsistent with the provisions of Part III
became void to the extent of the inconsistency. The High Court as
well as this Court found that Section 8-A was unconstitutional because there was no real and substantial distinction why the J agirdars
of a particular area should continue to be treated with inequality as
compared with the Jagirdars in another area of the State.
There
was nothing to show that there was any peculiarity or any special
feature in the Jagirs of the former United State of Rajasthan, like
Mewar, to justify differentiation from the J agirs
comprised in
the
States which were subsequently integrated into the State of Rajasthan
in 1949. In other words, after the formation of the new State there•
was no justification for taking away the powers of the Jagirdars of
a disfavoured area like Mewar and to leave them intact in the rest
of the areas like Bikaner, Jaipur and Jodhpur.
In Jai Lal v.