# The Commis· siontr, Hindu Reli'gious Endow· rnents, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt. !954 March 16

- **Citation:** [1954] 1 S.C.R. 1046
- **Court:** Supreme Court of India
- **Decided:** 1954
- **Bench:** Mehr Chand Mahajan C. J, MuKHERJEA S. R. DAs, VIVIAN BosE, GHULAM HAsAN
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-commis-siontr-hindu-reli-gious-endow-rnents-madras-v-sri-lakshmindra-238
- **Pages:** 10

## Headnote

Constitution of India, arts. 19(1)(1), 25, 26, 27-0rissa Hindtt
Religious Endowments Act, 1939, as amended by Amending Act II of
1952, ss. 38 and 39 and proviso to s. 46-Whether ultra vires
the Constitution-Section 49 of the Act-Whether ultra
vires
art. 27.
Held, that ss. 38 and 39 and the proviso to s. 46 of the Orissa
Hindu Religious. Endowments
Act, 1939
as amended
by the
Amending Act II of 1952 arc ultra vim arts. 19(1)(£), 25 and 26 of
the Constitution.
The annual contribution provided in s. 49 of the Act is in the
nature of a fee and not a tax and therefore it was \Vithin the
competence of the Provincial Legislature to enact such a provision.
Further an imposition like this is not hit by art. 27 of the Consti·
tution because the object of the contribution under s. 49 is not the
fostering or preservation of the Hindu religion or of any denomi,
nation within it but the proper administration of religious trusl;
and institutions wherever they exist.
Civil ,Appeal No. 38 of 1953 referred to.
OruGINAL
JuRISDICTION :
Petition No. 405 of 1953,
Under article 32 of
the Constitution of India for
tl~e enforcement of Fundamental Rights
and
APPELLATE
JuR1so1cT10N : Case No. 1 of 1950.
•
S.C.R.
SUPREME COURT REPORTS
1047
1954
, Appeal under section 205 of the Governmc;:nt of
India Act, 1935, from the Judgment and Decree, dated
the 13th September, 1949, of the High Court of Judicature, Orissa, in First Appeal No. 39 of 1949, arising
out
of
the

## Text

1954
The Commis·
siontr, Hindu
Reli'gious Endow·
rnents, Madras
v.
Sri Lakshmindra
Thirtha Swamiar
of Sri Shirur
Mutt.
!954
March 16.
1046
SUPREME COURT REPORTS
[1954]
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.
MAHANT SRI JAGANNATH RAMANUJ DAS
AND ANOTHER
v.
THE STATE OF ORISSA AND ANOTHER.
[MEHR CHAND MAHAJAN C. J., MuKHERJEA
S. R. DAs, VIVIAN BosE, and GHULAM HAsAN JJ.]
Constitution of India, arts. 19(1)(1), 25, 26, 27-0rissa Hindtt
Religious Endowments Act, 1939, as amended by Amending Act II of
1952, ss. 38 and 39 and proviso to s. 46-Whether ultra vires
the Constitution-Section 49 of the Act-Whether ultra
vires
art. 27.
Held, that ss. 38 and 39 and the proviso to s. 46 of the Orissa
Hindu Religious. Endowments
Act, 1939
as amended
by the
Amending Act II of 1952 arc ultra vim arts. 19(1)(£), 25 and 26 of
the Constitution.
The annual contribution provided in s. 49 of the Act is in the
nature of a fee and not a tax and therefore it was \Vithin the
competence of the Provincial Legislature to enact such a provision.
Further an imposition like this is not hit by art. 27 of the Consti·
tution because the object of the contribution under s. 49 is not the
fostering or preservation of the Hindu religion or of any denomi,
nation within it but the proper administration of religious trusl;
and institutions wherever they exist.
Civil ,Appeal No. 38 of 1953 referred to.
OruGINAL
JuRISDICTION :
Petition No. 405 of 1953,
Under article 32 of
the Constitution of India for
tl~e enforcement of Fundamental Rights
and
APPELLATE
JuR1so1cT10N : Case No. 1 of 1950.
•
S.C.R.
SUPREME COURT REPORTS
1047
1954
, Appeal under section 205 of the Governmc;:nt of
India Act, 1935, from the Judgment and Decree, dated
the 13th September, 1949, of the High Court of Judicature, Orissa, in First Appeal No. 39 of 1949, arising
out
of
the
Judgment
and Decree,
dated the 11th
September, 1945,
of tbe Court of the District Judge,
Cuttack, in Original Suit No. 3 of 1943.
- Mahant Sri
Jagannath
Rarnanl{j Das
and Another
v.
N. C. Chatteriee ' (B. K. Saran and R. C. Prasad,
with him) for the petitioners and appellants Nos. 1
to 13.
S. P. Sinha (B. K. Saran and R. C. Prasad, with
him) for appellants 14 to 16.
M. , C. Setalvad ( G. N. Joshi, with
him) for
respondents in both the matters. Agent R. H. Dhebar.
1954. March 16.
The Judgment of the . Court was ·
delivered by
MuKHERJEA J.-These two connected matters
are
taken up together for the sake of convenience and may
be disposed of by one and the same judgment. Petition
No. 405 of 1953 has been presented to this court under
article 32 of the Constitution and the petitioners are
the Mahants
or
superiors
of
two ancient and wellknown religious institutions of Orissa, both of which •
have · endowments of considerable value situated within
and outside the Orissa State.
An Act, known as
the
Orissa Hindu Religious Endowments Act, was passed
by
the Orissa Legislative Assembly functioning under
the Government of India Act, 1935, in the year 1939
and it received the assent of the Governor-General on
the 31st
August, 1939.
The
object of the Act, as
stated
in
the preamble, is "to provide for the better
administration and
governance
of
certain
Hindu
religious
endowments"
and the expression "religious
endow111ent" has
been defined comprehensively in the
Act as meaning all property belonging to, or given or
endowed for the support of Maths or temples or for the
p~rformance of any service or charity connected therewith.
The whole scheme of the Act is to vest the
control and
supervision of public temples and Maths
in a statutory authority
designated as
the Commissioner of Hindu Religious Endowments and to confer
7·1ie State of .
Orissa and
Another.
Mukherjea J.
1954
Mahant Sri
Jagannath
Ramanuj Das
and Another
v.
The State of
Ori:isa and
Another
Mukherjea ].
1048
SUPREME COURT REPORTS
[1954]
upon him certain powers with a view to enable him to
exercise effective control over the trustees of the Maths
and the temples.
The Commissioner is required to be
a member of the Judicial or Executive Service of the
Province and his actions are subject to the general
control of the Provincial Government. For the purpose
of meeting the expenses of the Commissioner and his
staff, every Math or temple, the annual income of which
exceeds Rs. 250, is required under section 49 of the Act
to pay an annual contribution at certain percentage of
the annual income which increases progressively with
the increase in the income.
With this Fontribution as
well as loans and grants made by
the Government, a
special
fund is to be constituted as provided by section 50 and the expenses of administering the religious
endowments are to be met out of this fund.
In July, 1940, a suit, out of which the Case No. 1 of
1950 arises, was instituted in the court of the District
Judge of Cuttack by a number of Mahants including
the two
petitioners in
the petition
under article 32
before us, praying
for a declaration that the Orissa
Religious Endowments Act of 1939 was ultra vires the
Orissa Legislature and for other consequential reliefs.
The validity of the Act was challenged substantially on
three grounds, namely, (i) that the subject matter of
legislation was not covered
by Entry 34 of List II in
Schedule VII of the Government of India Act. 1935;
(ii) that the contribution
levied under section 49 was,
in substance, a tax
and
could not have been imposed
by the Provincial Legislature; and (iii) that as
the
provisions of the Act affected the income of properties
situated outside the territorial limits of the Province,
the Act was extra-territorial in its operation and hence
inoperative.
All these contentions were overruled by
the District Judge of Cuttack, who by his judgment,
dated the 11th September, 1945, dismissed the plaintiffs'
suit.
Against that decision, an appeal was taken by
the plaintiffs to the High Court of Orissa and the
appeal was heard by a Division Bench,
consist~ng
of
Jagannadhadas
and
Narasimham JJ.
The
learned
Judges
by
two separate
but concurring judgments,
dated the 13th September, 1949, affirmed the decision
.
S.C.R.
SUPREME COURT REPORTS
1049
of the District Judge and dismissed the appeal. It is
against' this Judgment that Case No. 1 of 1950 has come
to this court.
.
During the pendency of the appeal in this court the
Constitution
came into force on the 26th January, 1950,
with its chapter on fundamental rights, and the Orissa
Hindu Religious
Endowments Act
also
has
been
amended recently by the "State Legislature of Orissa by
amending Act II of 1952.
In view of these changes,
the present application under article 32 of the Constitution has been filed by two
of the Mahants who
figured as plaintiffs in the Declaratory Suit of 1940
and
the application
has been framed comprehensively
so as to include all points that could be urged against
the validity of the Orissa Hindu Religious Endowments
Act Off the basis of the provisions of the Constitution.
It is conceded by both the parties that in these circumstances it is not necessary
for
us to deal separately
with
the appeal.
The decision, which we would arrive
at in
the
petition
under
article
32, will be our
pronouncement on the validity or
otherwise of the
different provisions of the impugned Act.
It may be stated at the beginning that the Orissa
Hindu Religious Endowments
Act
of 1939 follows
closely the pattern
of
the Madras Hindu Religious
Endowments Act of 1927 which has been now replaced
by a later
Act
passed
by the State Legislature
of
Madras in
1951 and described as the Madras Hindu
Religious and Charitable Endowments Act. The grounds
upon which the validity of the Orissa Act has been
attacked before us are substantially the same as
were
urged in
assailing
the constitutional validity of the
Madras Act, in Civil appeal No. 38 of 1953 (T lie Commissioner,
Hindu
Religious
Endotvments, Madras v.
Sri Lakslimindra Tliirtlia Swamiar), the judgment in
which has just been delivered. 1 The grounds urged
can be classified conveniently under two heads. In the
first place, some of the provisions of the impugned Act
have been challenged
as invalid on the ground that
they invade the fundamental rights of the petitioners
guara?te~d ·under articles 19(1) (£), 25, 26 and 27 of the
Const1tut10n.
The other branch of
the
contention
(1) [ 1 9a~l s.c.R. 1005.
195+
Mahant Sri
Jagannath
Ramanuj- Dat
ahd Anothtf'
v •
The State of
Orissa and
Another
Mukher:jea J,
•
•
•
1954
klahant Sri
Jagannatk
Ramanuj Das
and Another
v.
The State of
Orissa and
Another
Mukherjea J.
1050
SUPREME COURT REPORTS
[1954]
relates to
the proVision
for levying contribution on
religious institutions
under section 49 of the Act and
this provision has been impeached firstly on the ground
that
the contribution
being in substance a tax, it was
beyond the competency of the Provincial Legislature to
enact any such provision.
The other ground raised is,
that the payment of such tax or imposition
is
prohibited by article 27 of the Constitution.
The
general
questions relating to the scope and
ambit of the fundamental rights embodied in articles 19
( l) ( f), 25, 26 and 27 of the Constitution in connection
with Maths and temples have been discmsed fully in
our judgment in the Madras appeal referred to above
and it would not be necessary
to reiterate these discussions
for
purposes of
t11e present case.
We can
straightaway proceed to examine the different provisions of the Act to which objections have been taken
by the learned counsel appearing for the petitioners in
the light of the principles which this court has
laid
down in the Madras appeal.
It may be
said that
many
of
the impugned provisions of the Orissa Act
correspond more or less
to
similar provisions in the
Madras Act.
Section 11 of the Act has been objected to on the
ground that it
vests
almost
an uncontrolled and
arbitrary power
upon the Commissioner. This section
corresponds to section 20 of the Madras Act and as has
been
pointed out
in our judgment, in the Madras
appeal,
the
powers,
though
seemingly wide, can be
exercised
only
to ensure that Maths and temples are
properly maintained and the endowments are properly
administered.
As the object
and purpose for which
these
powers
could be exercised have been indicated
precisely, we do not think that it could be said that
the anthority vested in the Commissioner is in any way
arbitrary
or unrestricted.
The explanation attached
to the section
only makes it clear
that the general
power conferred upon
the
Commissioner extends to
passing of interim orders
as the Commissioner might
think fit.
Section 14 lays down the duties of the trustee and
the care which he should exercise in the management
,
S.C.R.
SUPREME COURT REPORTS
1051
of the affairs of the religious institutions.
The care,
which he has to exercise, is what is demanded normally
of every
trustee
m
charge
of trust estate and the
standard is
that
of
a man
of ordinary prudence
dealing
with
his
own funds or properties. This is a
matter. relating to the administration of the estate
and does not interfere with any fundamental rights of
the trustee.
For the same reason, we think, no objection could be taken to the provision of section 28 which
lays down that the trustee of a temple shall be bound
to obey all. orders issued under the provisions of the
Act. by the Commissioner.
If the orders are lawful and
made in pursuance of authority properly vested in the
officer, no legitimate ground could be urged for not
complying with the orders.
The sections of the Act,
to which serious objections have been taken are sections 38, 39, 46, 47 and 49.
Sections 38 and 39 relate
to the framing of a scheme.
A scheme can certainly
be settled to ensure due administration of the endowed
property but
the objection seems to be that the Act
provides for
the framing of a scheme not by a civil
court or under its supervision but by the Commissioner,
who
is a mere administrative or executive
officer.
There is also no provision for appeal against his order
to the court.
Under section
58 of the Madras Act,
al:hough the
scheme
is to be framed by the Deputy
Commissioner, an appeal lies against his order to the
Commissioner in· the first place.
A party aggrieved
by the order of the Commissioner again has a right of
suit in the ordinary civil court, with a further right of
appeal to the High Court. It seems that sub-section ( 4)
of section 39 of the impugned Act, as it originally stood,
allowed the trustee or any person having an interest in
the institution to file a suit in a civil court to modify
or set aside
an order framing a scheme; and under
section 40, the order made under section 39 could be
final only subject to the result of such
suit. Subsection (4) of section 39, however, was deleted by
the
Amending
Act of
1952,
and
under the new subsection (4), the order passed by the Commissioner has
been made· final and conclusive.
Strangely, however,
section 41. of , the Act has still been retained in its
9-_97 S. C. Indla/59
1954
Mahant Sri
_Jagannath
Ramanuj Das
and Anoth1r
v.
The State of
Oris.la and
Another.
Mukherjea ].
1954
Mahant Sri
Jagannath
Ramanuj Das
and Another
v.
The State of
Orissa and
Another.
.~1ukherjea J.
1052
SUPREME COURT REPORTS
[1954]
original shape and
that
speaks of an order settling a
scheme being set aside or modified
by
the court.
Obviously, this is careless drafting and the Legislature
did not seem to have adverted to the apparently
contradictory
provisions
that
it
made. The learned
Attorney-General, appearing for
the State of
~rissa,
has also conceded
that
these sections require redrafting.
We think that the settling of a scheme in regard to a
religious institution by an executive officer without the
intervention
of
any judicial tribunal amounts to
an
unreasonable restriction upon the right of property of
the superior of the religious institution which is blended
with his office.
Sections 38
and 39 of the Act must, ·
therefore, be held to be invalid.
There is nothing wrong in the provision of section 46
itself but legitimate exception, we think, can be taken
to the proviso appended
to
the section.
Under
the
law, as it stands, the Mahant or the superior of a Math
has very wide powers of disposal over the surplus
income and
the
only restriction that is recognised is
that he cannot spend the income for his own personal
use unconnected with the dignity
of his office. The
purposes specified in section 46 are all conducive to the
oenerit of the institution and there is no reason why
the discretion of the trustee in regard
to the spending
of surplus for such purposes also should be still further
restricted
by directions which the Commissioner may
choose
to
issue. Section 47 ( 1) lays down how the rule
of cy pres is to be applied not merely when
the
origi(lal purpose of the trust fails or becomes incapable
of being carried out either in whole or in part by reason
of subsequent events, but also where there is a surplus
left after meeting the legitimate expenses of the institution.
Objection apparently could be raised against
the
last
provision
of
the sub-section, but
as subsection ( 4) of section 47 gives the party aggrieved by any
order of the Commissioner in this respect to file a suit
in a civil court and the court is empowered to modify
or set .aside such order · of the. Commissioner, we do not
think that there is any reasonable ground for complaint.
The only other section that requires consideration is
section 49 under which every Math or remple having
'
S.C;R.
SUPREME COURT REPORTS
1053
an
annual income
exceeding Rs. 250 has got to make
an annual contribution for meeting the expenses of the
Commissioner and the officers
and servants working
under
him. The first question that arises with regard
to this provision is, whether the imposition is a tax or
a fee; and it
is
not disputed that if it is a tax, the
Provincial
Legislature
would
have no authority
to
cnacr
such a provision. This question has been elaborately
discussed in our judgment in the Madras appeal
referred
to above and it is not necessary to repeat the
discussions over again.
As has been pointed out in the
Madras appeal, there is no generic difference between
a tax and a· fee and both are different forms in which
the taxing power of a State manifests itself.
Our·
Constitution, however, has made a distinction
between
a tax and a fee for legislative purposes and white mere
are various
entries in the three lists with regard to
various forms of taxation, there is an entry at the end
of each one of these lists as regards fees which could be
levied in respect of every one of the matters that are
included therein.
A tax is undoubtedly in the nature
of a compulsory exaction
of money by a public
authority for public purposes, the payment of which is
enforced
by
law.
But the essential thing in a tax i~
that the impos1t10n
is
made for
public purposes to
•meet the general expenses of the State without reference
to any special benefit to be conferred upon the payers
0£ the tax.
The taxes collected are all merged in the
general revenue of
the State to be applied for general
public purposes.
Thus, tax is a common burden and
the only return· which the taxpayer gets is the participation
in the common benefits of the State. Fees, on
the other hand, are payments primarily in the public
interest but for ·some special service rendered or some
special work done for the benefit of those from whom
payments are demanded.
Thus in fees there is always
an element of quid pro quo which is absent in a tax.
Two elements are thus essential in order that a payment may be regarded as a fee.
It the first place, it:
must
be levied · in consideration ' · of certain service's
which . the ' individuals accepted
either willingly ·or
unwillingly;' (But' this· by'itsdf· iinot· enough· to make
•
195+
Mahant Sri
Jagannath
Ramanid Das
a'7ld A~qther
v.
The State of
Orissa and
Anoth~.
~--
Mukherjea J.
1954
Mahant Sri
Jagannath
Ramanuj Das
and Another
v.
Thi State of
O,Usa and
Another.
Mukherjea - ].
1054
SUPREME COURT REPORTS
[1954]
the imposition
a fee, if the payments demanded for
rendering of such services are not set apart or specifically appropriated for that purpose but are merged in
the general revenue of the State to be spent for general
public purposes.
Judged by this test, the contribution
that is levied by section 49 of the Orissa Act will have
to be regarded as a fee and not a tax. The payment is
demanded only for the purpose of meeting the expenses
of the Commissioner and his office which is the machinery set up for due administration of the affairs of the
religious
institution.
The collections
made
are
not
merged in the general
public revenue and are not
appropriated in the manner laid down for appropriation of expenses for other public purposes. They go
to constitute the
fund
which is contemplated by
section 50 of the Act and this fund, to which also the
Provincial
Government contributes both by way
of
loan and grant, is specifically set apart for the rendering of services involved in carrying out the provisions
of the Act. We think, therefore, that according to the
principles which this
court lias enunciated in the
Madras appeal
mentioned
above, the
contribution
could legitimately be regarded as fees and hence it was
within the competence of the Provincial Legislature to
enact this
provision.
The fact that the amount of
kvy 1s graded according to the capacity of the payers
though it gives it the appearance of an income-tax, is
not
by any means a decisive test.
We are further of opinion that an imposition like
this cannot be said to be hit by article 27 of the
Constitution.
What is forbidden by article 27 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 object of the contribution under section 49 is not
the fostering or preservation
of the Hindu religion or of
any denomination within it; the purpose is to see that
religious trusts and institutions wherever they exist are
properly administered. It is the secular administration
of the religious institutions that the Legislature seeks
to control and the object, as enunciated in the Act, is
to ensure that the endowments attached to the religious
'
••
S.C.R.
SUPREME COURT REPORTS
1055
institutions are properly administered and their income
is duly appropriated for purposes for which they were
founded or exist.
As there is no question of favouring
any
particular
religion
or
religious
denomination,
article 27 could not possibly apply.
The result is that, in our opinion, the
on! y sections
of the Act, which are invalid, are sections 38, 39 and
the proviso
to section 46.
The
application
under
article 32 is, therefore, allowed to this extent
that a
writ in the nature
of mandamus would issue restraining the
Commissioner
and
the
State
Government
enforcing against the petitioners the prov!Slons of the
sections mentioned above.
The other
prayers
of the
petlt10ners
are
disallowed.
No
separate
order is
necessary in Case No. 1 of
1950,
which
will
stand
dismissed.
We make no order as to costs either in the
petition or in the appeal.
RATILAL PANACHAND GANDHI
tJ.
THE STATE OF BOMBAY AND OTHERS.
(and connected appeal)
[MEHR CHAND MAHAJAN C. J., MuKHERJEA,
S. R. DAs, VIVIAN BosE and GHULAM HASAN JJ.]
Constitution of India, arts. 25 and 26-Bombay Public Trust Act,
1950 (Act XX!X of 1950), ss. 44, 47(3) (4) (5) (6), 55(c) and 56(1)
-Whether ultra vires the Constitution-Section 58 of the
ActWhether ultra vires the State Legislature.
Held, that the provision of s.
44 of the
Bombay
Public
Trust Act, 1950, relating to the
appointment of the
Charity
Commissioner
as a trustee of
any public trust
by the
court
without any reservation
in regard to religious institutions
Iike
ten1ples and Maths is unconstitutional and must be held to be void.
The provisions of cl. (3) to (6) of s. 47 of the Act to the extent
that they relate to the appointment of the Charity Commissioner
as a trustee of a religious trust like temple
and Math are unconstitutional and must be held to be void.
A religious sect or
denomination has
the
undoubted right
guaranteed by the
Cofistitution to tnanage its own affairs in matters
of religion and this includes the right to spend the trust property
or its income for religion and for
religious
purposes
and objects
indicated
by the founder of the trust or established
by
usage
1954
Mahant Sri
Jagannath
Ramanuj Das
and Another
v •
The State of
Orissa and
Anot,,,,..
Mukherjea J.
1954
March 18.