# TheStateof RaJasthan v. Rao Manohcr Sinthji. Ghulam Hasan] •. •

- **Citation:** [1954] 1 S.C.R. 1005
- **Court:** Supreme Court of India
- **Decided:** 1953-12-17
- **Bench:** Mehr Chand Mahajan C. J, MuKHERJEA, S. R. DAs, VIVIAN BosE, Ghulam Hasan, Bhagw~Ti, Venkatarama Ayyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/thestateof-rajasthan-v-rao-manohcr-sinthji-ghulam-hasan-237
- **Pages:** 42

## Headnote

Constitution
of India,
arts. 19(1)(f), 25,
26, 27-Madras
Hindu Religious and Charitable Endowments Act, 1951 (Madras Act
XIX of 1951), ss. 21, 30(2), 31, 55, 56 and 63 to 69, 76--Whether
ultra vires the Constitution-Work "property" in art 19(1) (f)
meaning of-Tax and fee, meaning of-Distinction bet1vcen.
Held, that ss. 21, 30(2), 31, 55, 56 and 63 to 69 of the Madras
Hindu Religious and Charitable Endowments Act, 1951 (Madras
Act XIX of 1951) are ultra vires arts. 19(\)(f), 25 and 26 of the
Constitution cf India.
Section 76( I) of the Act is void as the provision relating to tlie
payment of annual contribution contained in it is a tax and not a
fee and so it was beyond the legislative competence of the Madras
Sta~c Legislature to enact such a provision.
That on the facts of the present case the imposition under
s. 76( I) of the Act, although it is a tax, does not come within the
hitter part of art. 27 because the t>bject of the contribution under
the section is not the fostering or preservation of the Hindu reli·
gion or any denomination under it but the proper administration
ot rc.li<i;iam. tnms and institutions wherever they exist.
1954
TheStateof
RaJasthan
v.
Rao Manohcr
Sinthji.
Ghulam Hasan] •.
•
1954
March 16.
1954
Thi C•mmis4
siomr, Hindu
&ligiow Endow 4
mmts, Madras
v.
Sri Lakshmindra
7 hirtha Swamiar
of Sri Shirur
Mutt.
•
1006
SUPREME COURT REPORTS
[1954]
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 \vhich have the
insignia or characteristics of proprietary right.
The ingredients of both office and property, of duties anJ personal interest are biended 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)(£).
A tax is a con1pulsory exaction of money by public authority
for public purposes enforceable by law and is not payn1ent
for~
services renderc:d .
It is not possible to formulate a definition of fc:c: that can
apply to all cases as there are various kinds of fees. But a fc:e 1nay
generally be defined as a charge for a special service rendered to
individuals by so111e governn1ental agency.
1"'hc:
an1ount of fee
levied is supposed to be based on the expenses incurred by the
Govern1nent in rendering the service, though in inany cases such
expenses are arbitrarily assessed.
"The distinction between a tax and a fee lies prirnarily
in
the: fact that a tax is levied as part of a comn1on burden, while: a
fee is a payn1ent for a special benefit or privilege."
Scope of arls. 25 an<l 26 <lisi..:ussed.
Meaning
of
the
tern1
"Mathadhipati"
and
"religion"
explained.
Vidya Varuthi v. Balusami ( 48 I.A. 302), Monahar v. Rhupendm {60 Cal. 452), Ganesh v. Lal Behary (63 I.A. 448), /!habatarini
v. Ashalata (70 I.A. 57), Angurbala v. Debabrata ((1951] S.C.R. 1125),
Davis v. Benson (133 U.S. 333), The State of West Bengal v. Subodh
Gopal Rose (Civil Appeal No. 107 of 1952 decided by the Supreme
Court on the 17th December, 1953), Adelaide Company v. The Commonwealth ( 67 C.L.R. 116, 127), Minersville School Dutrict, Board
of Education etc. v. Gobitis (310 U.S. 586), West Virginia State
Board of Education v. Barnette (319 U.S. 624), Murdock v. Pennsylvania (319 U.S. 105), /ones v. Opelika (316 U.S. 584). Matthews v.
Chicory Marketing Board ( 60 C.L.R. 263, 276), Lower Mainland
Dairy v. Crystal Dairy Ltd. ([1933] A.C. 168) referred to.
(Findlay Shirras on Science of Puhlic Finance, Vol. LP. 203).
C1VIL
APPELLATE
JUR1so1cTION : 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, m
Civil Miscellaneous
Petition No. 2591
of
1951.
S.C.R.
SJJPREME COURT REPORTS
V. K. T. Chari, Advocate-General of Madras R. Gana'
pathy I

## Text

_Characters 0–39,521 of 101,731. This is a partial read: ask again with offset=39521 for what follows._

S.C.R.
SUPREME COURT i,EPORTS
1005
existed in the other parts of Rajasthan. This difference
between the two parts did not justify that such progressive and ameliorative measures for the welfare of
the people existing in a particular area should be done
away with and the State be brought down to the level
of the unprogressive States.
The judgment shows that
the
Bench far from going back on its previous view
adhered
to
it and expressly
distinguished
the case
under appeal before us on its special facts.
As a result
of the foregoing discussion
we hold
that the view taken by the High Court is correct. We
accordingly dismiss the appeal with costs.
Appeal dismissed.
Agent for the appellant :
R. H. Dhebar.
THE COMMISSIONER, HINDU RELIGIOUS
ENDOWMENTS, MADRAS
ti.
SRI LAKSHMINDRA THIRTHA SW AMIAR
OF SRI SHIRUR MUTT.
[MEHR CHAND MAHAJAN C. J., MuKHERJEA,
S. R. DAs, VIVIAN BosE, GHULAM HASAN,
BHAGW~TI and VENKATARAMA AYYAR JJ.]
Constitution
of India,
arts. 19(1)(f), 25,
26, 27-Madras
Hindu Religious and Charitable Endowments Act, 1951 (Madras Act
XIX of 1951), ss. 21, 30(2), 31, 55, 56 and 63 to 69, 76--Whether
ultra vires the Constitution-Work "property" in art 19(1) (f)
meaning of-Tax and fee, meaning of-Distinction bet1vcen.
Held, that ss. 21, 30(2), 31, 55, 56 and 63 to 69 of the Madras
Hindu Religious and Charitable Endowments Act, 1951 (Madras
Act XIX of 1951) are ultra vires arts. 19(\)(f), 25 and 26 of the
Constitution cf India.
Section 76( I) of the Act is void as the provision relating to tlie
payment of annual contribution contained in it is a tax and not a
fee and so it was beyond the legislative competence of the Madras
Sta~c Legislature to enact such a provision.
That on the facts of the present case the imposition under
s. 76( I) of the Act, although it is a tax, does not come within the
hitter part of art. 27 because the t>bject of the contribution under
the section is not the fostering or preservation of the Hindu reli·
gion or any denomination under it but the proper administration
ot rc.li<i;iam. tnms and institutions wherever they exist.
1954
TheStateof
RaJasthan
v.
Rao Manohcr
Sinthji.
Ghulam Hasan] •.
•
1954
March 16.
1954
Thi C•mmis4
siomr, Hindu
&ligiow Endow 4
mmts, Madras
v.
Sri Lakshmindra
7 hirtha Swamiar
of Sri Shirur
Mutt.
•
1006
SUPREME COURT REPORTS
[1954]
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 \vhich have the
insignia or characteristics of proprietary right.
The ingredients of both office and property, of duties anJ personal interest are biended 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)(£).
A tax is a con1pulsory exaction of money by public authority
for public purposes enforceable by law and is not payn1ent
for~
services renderc:d .
It is not possible to formulate a definition of fc:c: that can
apply to all cases as there are various kinds of fees. But a fc:e 1nay
generally be defined as a charge for a special service rendered to
individuals by so111e governn1ental agency.
1"'hc:
an1ount of fee
levied is supposed to be based on the expenses incurred by the
Govern1nent in rendering the service, though in inany cases such
expenses are arbitrarily assessed.
"The distinction between a tax and a fee lies prirnarily
in
the: fact that a tax is levied as part of a comn1on burden, while: a
fee is a payn1ent for a special benefit or privilege."
Scope of arls. 25 an<l 26 <lisi..:ussed.
Meaning
of
the
tern1
"Mathadhipati"
and
"religion"
explained.
Vidya Varuthi v. Balusami ( 48 I.A. 302), Monahar v. Rhupendm {60 Cal. 452), Ganesh v. Lal Behary (63 I.A. 448), /!habatarini
v. Ashalata (70 I.A. 57), Angurbala v. Debabrata ((1951] S.C.R. 1125),
Davis v. Benson (133 U.S. 333), The State of West Bengal v. Subodh
Gopal Rose (Civil Appeal No. 107 of 1952 decided by the Supreme
Court on the 17th December, 1953), Adelaide Company v. The Commonwealth ( 67 C.L.R. 116, 127), Minersville School Dutrict, Board
of Education etc. v. Gobitis (310 U.S. 586), West Virginia State
Board of Education v. Barnette (319 U.S. 624), Murdock v. Pennsylvania (319 U.S. 105), /ones v. Opelika (316 U.S. 584). Matthews v.
Chicory Marketing Board ( 60 C.L.R. 263, 276), Lower Mainland
Dairy v. Crystal Dairy Ltd. ([1933] A.C. 168) referred to.
(Findlay Shirras on Science of Puhlic Finance, Vol. LP. 203).
C1VIL
APPELLATE
JUR1so1cTION : 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, m
Civil Miscellaneous
Petition No. 2591
of
1951.
S.C.R.
SJJPREME COURT REPORTS
V. K. T. Chari, Advocate-General of Madras R. Gana'
pathy Iyer, with him) for the appellant.
B. Somayya and C. R. Pattabhi Raman (T. Krishna
Rao and M. S. K. Sastri, with them) for the respondent.
T. N. Subramania Iyer, Advocate-General of Travancore-Cochin
(T. R. Balakrishna Iyer and Sardar Bahadur, with him) for the Intervener (State of TravancoreCochin).
1954.
March 16.
The Judgment of the Court was
delivered by
MuKHERJEA J.-This appeal is directed against a
judgment of a Division Bench of the Madras High
Court, (lated the 13th of December, 1951, by which
the learned Judges allowed a petition, presented
by
the respondent under article 226 of the Constitution,
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 Religious 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 preaecessor
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 II 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 Augnst, 1951. Jn 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.
•
1954
The Commissioner; Hindu
Religious Endowments; Mad,ras
v.
Sr£ Llfkshmindra
T.hirtha Swarniar
•f Sri Shirur
Mutt
MukMr:JeaJ.
1954
T ht Commissioner, Hindu
.Rtligious Endowrmnts, Madras
v.
Sri Lakshmindra
Thirtha Swamiar
of Sri Shirur
Mutt.
Mukhnjea J.
1008
/SUPREME COURT REPOR'fS
[1954]
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 Souh 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 Sanyasi
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 arc
managed by
the superiors of the other eight Maths by
turns and the custom is that tbe 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 af
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
S.C.R.
SUPREME COURT REPORTS
lOOJ
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
instigated
by
one
Lakshminarayana Rao, a lawyer of Udipi, who wanted
to have control over the affairs of the Math. It appears
that in pursuance of the 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 Maham.
He did not even submit accounts to
the Maham 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
Lakshminarayana
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 SubCourt 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
195{
T"6 Commis·
siotteT, Hindu
Religious Endoww
mmts, Madras
·V.
Sri Lalcshmindra
T hirtha Swamiar
of Sri .Shirur
MMtt.
195~
Tht Commissioner, Hindu
&li.gfous Endowments, Madras
v.
Sri Lakshmitidra
Thirtha Swamiar
of Sri Shirur
Mutt.
Mukhrr.ie• J.
1010
SUPREME COURT REPORTS
[1954]
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 Attorμey 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 appear 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 j~dice, 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 sect(on 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
af!ixture 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 not 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
•
S.C.R.
SUPREME COURT REPORTS
IOU
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 llth
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 petitioner
filed
the
petltlon,
out of which this appeal
anses, · 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 a/ia
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
beionging 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 articles 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
amend 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 tl1e 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
6--97 S. C.Ind'a/59
1954
The Commissioner, Hindu
Religious Endowments, Madras
v.
Sri Lakshmindra
T hirtha Swamiar
of Sri Sftirur
Mutt.
Mukherjea J,
1954
The Commis--
sioner, Hindu
Religious Endowments, Madras
v.
Sri Lakshmindra
T hirtha Swamiar
of Sri Shirur
Mutt.
Muk/,,rjea ].
1012
SUPREME COURT REPORTS
[1954]
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
pet1t10n was made absolute and the
Commissioner,
Hindu Religious
Endowments, Madras, was prohibited
from proceeding further with the framing of a scheme
in regard to the petitioner's Math.
The Commissioner
has now come up on appeal before us on the strength
of
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
challenge
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
might arrive
at on
the
Constitution Points raised
before us.
It is not disputed that a State Legislature
is competent to
enact
laws
on the subject of religious and
charitable endowment, 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
prov1s1on
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
S.C.R.
SUPREME COURT REPORTS
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 Stat.e of Madras. As compared with the Earlier
Act, . its scope is wider and it can be made applicable
to purely charitable endowments by proper notification
under section 3 of the Act. The Earlier Act provided
for supervision of Hindu religious endowments through
a statutory body known as the Madras Hindu Religious
Endowments Board. The New Act has abolished this
Board and the administration of religious and 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 1s
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 an the temples situated within a
division or part of a division. Under section 18, the
Commissioner is empowered to examine the records of
any Deputy Commissioner, .Assistant Commissioner, or
Area Committee, or of any trustee not being the trustee
1954
The Commis·
sioner, Hindu
&liiiou.s Endow·
'!l''nts, Madras
v.
Sri Lakshmindra
Thirthit Swamiar
ofSri Shirur
Mutt.
Mukherjea J.
1954
The Commissioner, Hindu
Religious Endowments, Madras
v.
Sri Lakshmindra
Thirtha Swamiar
of Sri Shirur
Mutt.
1014
SUPREME COURT REPORTS
[1954]
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
religions endowments
is placed
under
the
general
snperintendence 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
as may be authorised in this behalf, the power
to enter the premis.es 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 exercis.ing 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 years, without the
sanction of the Commissioner. Section
30 lavs down
that although
a trustee may
incur expenditure
for
making
arrangements
for securing the
health
and
S.C.R.
SUPREME COURT REPORTS
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 general or special instructions
which he may receive from the Commissioner or the
Area Committee. Section 31 deals with surplus funds
which the trustee may apply wholly or in part with
the permission, in writing, of the Deputy Commissioner for any of the
purposes
specified in section
59(1 ). Chapter IV deals specifically with Maths.
Section 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 rece1vmg
suggestions, if any,
from persons
interested
in the
institution, they would be scrutinised by the Commis-.
sioner. If the Commissioner thinks that a modification
is necessary, he shall submit the case to the Government and the orders of the Government would be final.
Section 55 empowers the trustee to spend at his discretion aird for purposes connected with the Math the
"Pathakanikas" or gifts made to him personally, but
he is required to keep regular accounts of the receipts
and expenditure of such personal gifts. Under section
56, the Commissioner is empowered to call upon the
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 institution if he has reason to believe tha·t
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
1954
The Commis--
sioner, Hindn
Religious Endowments, lvladras
v.
Sri Lakshmindra
T hirtha Swamiar
of Sri Shirur
Mutt.
Mukherjea J.
'
1954
The Commis·
sioner, Hindu
Religious Endowments, Madras
v.
Sri Lakshmindra
Thirtha Swamiar
of Sri Shirur
Mutt.
MukherjeaJ.
1016
ST.JPREME COURT REPORTS
[1954}
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 de,med to confer any power or impose any
duty in contravention of the right conferred on any
religious denomination under clauses (a), (b) ,;,ind ( c)
of article 26 of the Constitution. Section 99 vests a
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
hrief, 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
right 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
S.C.R.
SUPREME COURT REPORTS
1917
representative
of a religious
institution,
has
a ri6ht
guaranteed to him under article 25 of the Constitution
to practise and propagate freely the religion of which
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 separate! y later on. So far as the
other
three
points arc
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 'lvailable
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(l)(f) of the C.onstitution, 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
1954
The Commissioner, Hindu
Religious Endowments, Madras
v.
Sri Laksh;nindra
Thirtha Swaffliar
of Sri Shirur
Mutt.
Mukhnjea ].
1954
The Commis·
sioner, Hindu
Religious EndowM
ments, .\>!i:1ras
v.
Sri Lakshmindra
Thirlha Swamiar
of Sri Shirur
Mutt.
Mukherjea ].
1018
SUPREME COURT REPORTS
[1954]
article which, it is said, is intended to protect religious
freedom only so far as individuals are concerned, can
be invokecl in favour of an institution or organisatic"1 '
WitI1
rcgar'~ 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 interfrrd with is its
rigl1t to manage its own affairs in matters of religion
only and nothing else.
It is said,
that
the word
"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 but doe& not form an essential
part of it. Reference is
made in this ccnnection to
clause (2) (a) of article 25 ar.d 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 pronouncemen~s of the Judicial Committee,
which have been
accepted as good law
in this country ever since
1921,
that a Mathadhipati ho:ds
the Math property as a life
tenant or that his positio'1 is similar to that of a Hi11du
wdow in respect to her husband's estate or of an English
Bishop holding a benefice.
He is certainly not a trustee
in the strict sense. He may he, as the Privy Council('),
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 ;·ight to describe Mahantship as a mere
office.
A superior of a Math has not only duties to
discharge in connection with the endowment but he
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('), that
Shebaitship itself is
property,
and
this decision was
approved of by the Judicial
Committee in Ganesh v.
Lal Behary('), and again in Bhabatarini v. Ashalata ('),
(t) Vide Vidya Varuthi v. Balusami, 48 I. A. ::;02
.'.2', ''i.--1(' .\fonahai v. Bhupendra 6n Cal. 452.
is" 63 r. A. 448.
14' 7or.A.57.
S.CR.
SUPREME COURT REPORTS
1019
The effect of the first two decisions, as the Privy Council
pointed out in the last case, was to emphasise the proprietary element in the Shebaiti right' and to show that
though in some respects
an anomaly, it was anomaly
to be
accepted
having been admitted into Hindu
law from an early date.
This view was adopted in its
entirety by this court in Angurbala v. Debabrata (' )
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 in vest 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 off, 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 cnjov this propertv 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·
The Commissioner, Hindu
Religious Endow~
ments, Madras
v.
Sri Lakshmindra
T hirtha Swamiar
of Sri Shirur
Mutt.
MukherjeaJ.
Tm Commissioner, Hindu
Religious Endow•
ments, Madras
v.
Sri Lakshmindra
Thirtha Swamiar
of Sri Shirur
Mutt.
Mukherjea J.
1020
SUPREME COURT REPORTS
[1954]
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
Matha<lhipati down to
the level of a servan~ 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 31 of the Constitution,
which deals with deprivation of property, has no application here.
In the
case of The State of West Bengal v. Subodh Copa! Bose( 1 )
(Civil Appeal .No. 107 of 1952, decided by this court on
the 17th December, 1953), an opinion was expressed by
Patanjali Sastri
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.
S.C.R.
SUPREME COURT REPORTS
1021
counsel appearing in this case. The learned AttorneyGeneral 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 inay be approved of
by his judgment and conscience, but also to exhibit
his belief in such outward acts as he think> 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 whi.ch he is an adherent and if any provision
of law prevents him from propagating his doctrines,
that would certainly affect the religious freedom which
is guaranteed to every person under article 25.