Commissioner Hindu Religious Endowments
Sri Lakshmindra Thirtha Swamiar of Shirur Mutt
AIR 1954 SC 282
Civil Appeal No. 38 of 1953
Decided On: 16.03.1954
Appellants: The Commissioner, Hindu Religious Endowments, Madras
Respondent: Lakshmindra Thirtha Swamiar of Sri Shirur Mutt.
- Constitution Of India – Article 110, Article 119, – Article 13, – Article 132(1), – Article 15, – Article 19(1)(f), – Article 19(5), – Article 226, – Article 248(1), – Article 25, – Article 25(2)(a), – Article 26, – Article 26(b), – Article 26(d), Article 265, – Article 27, – Article 277, – Article 31, – Article 366, – Article 44(2)
- Madras Hindu Religious and Charitable Endowments Act, 1951 (Madras Act XIX of 1951)- Section 21, Section 30(2), Section 31, Section 55, Section 56 and Sections 63 to 69, Section 76
- This appeal is directed against a judgment of a Division Bench of the Madras High Court, dated the 13th of December, 1951, by which the learned Judges allowed 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.
- 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 Endowment Board constituted under that Act, which was the predecessor in authority of the present appellant and had initiated proceedings for settlement of a scheme against the petitioner under section 61 of the said Act.
- The petition was directed to be heard along with two other petitions of a similar nature relating to the temple at Chidambaram in the district of South Arcot and questions were raised in all of them regarding the validity of Madras Act 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 August, 1951.
- In view of the Earlier Act being replaced by the new one, leave was given to all the petitioners to amend their petitions and challenge the validity of the New Act as well.
- The Math, known as Shirur Math, of which the petitioner is the superior or Mathadhipati, is one of the eight Maths situated at Udipi in the district of South Kanara.
- 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. There is no Mathadhipati in the Shri Krishna Math and its affairs are managed by the superiors of the other eight Maths by turns and the custom is that the Swami of each of these eight Math presides over the Shri Krishna Math in turn for a period of two years in every sixteen years.
- The appointed time of change in the headship of the Shri Krishna Math is the occasion of a great festival, known as Pariyayam, when a vast concourse of devotees gather at Udipi from all parts of Southern India, and an ancient usage imposes a duty upon the Mathadhipati to feed every Brahmin that comes to the place at that time.
- The petitioner was installed as Mathadhipati in the year 1919, when he was still a minor, and he assumed management after coming of age some time in 1926. At that time the Math was heavily in debt. Between 1926 and 1930 the Swami succeeded in clearing off a large portion of the debt.
- In 1931, however, came the turn of his taking over management of the Shri Krishna Math and he 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 price 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 Endowment 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 petitioner’s 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.
- In pursuance of the direction of the Board, one Sripath Achar was appointed an agent and a Power of Attorney was executed in favour on the 24th of December, 1948. The agent, as alleged by the petitioner, wanted to have his own way in all the affairs of the Math and paid no regard whatsoever to the wishes of the Mahant. He did not even submit accounts to the Mahant and deliberately flouted his authority.
- In this state of affairs the Swami, on the 26th of September, 1950, served a notice upon the agent terminating his agency and calling upon him to handover 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 Sub-Court of South Kanara for recovery of the account books and other articles belonging to the Math, for rendering an account of the management and also for an injunction restraining the said agent from interfering with the affairs of the Mathunder colour of the authority conferred by the Power of Attorney which the plaintiff had cancelled.
- The said Sripath Achar anticipating this suit filed an application to the Board on the 3rd of October, 1950, complaining against the cancellation of the Power of Attorney and his management of the Math.
- The Board on the 4th October, 1950, issued a notice to the Swami proposing to inquire into the matter on the 24th of October 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 judice, the enquiry should be put off. A copy of the plaint filed in that suit was also sent along with the reply.
- The Board, dropped that enquiry, but without waiting for the result of the suit, initiated proceedings suo motu under section 62 of the Earlier Act and issued a notice upon the Swami on the 6th of November, 1950, stating that it had reason to believe that the endowments of the said Math were being mismanaged and that a scheme should be framed for the administration of its affairs.
- The notice was served by officer 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 handover 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 explanation to the Board, which the latter admittedly received on the 15th.
- On the 24th of January 1951, the Swami received a notice from the Board stating inter alia that the Board was satisfied that in the interests of proper administration of the Math and its endowments, the settlement of a scheme was necessary. A draft scheme was sent along with the notice and if the petitioner had any objections to the same, he was required to send in his objections on or before the 11th of February, 1951, as the final order regarding the scheme would be made on the 15th of February 1951.
- On the 12th of February, 1951, the petitioner filed the petition, out of which this appeal arises, in the High Court of Madras, praying for a writ of prohibition to prohibit the Board from taking further steps in the matter of settling a scheme for the administration of the Math.
- Whether the Swami of Shirur Math had a right to property under Article 19(1) (f) of the Constitution?
- Whether this ‘person’ mentioned in article 25 which grants freedom of religion to every person, meant only individuals or included corporate bodies as well?
- Whether Shirur Math and its followers could be considered as a ‘religious denomination or any section thereof’ to attract protection of their rights under Article 26?
- what constituted ‘matters of religion’ so as to prohibit the Government from interfering with the Swami’s functions?
Judgment by High court
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 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, and27 of the Constitution.
- In the result, the rule nisi issued on the petition was made absolute and the Commissioner, Hindu Religious Endowments, Madras, was prohibited from proceeding further with the framing of a scheme in regard to the petitioner’s Math.
- 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 High Court has held in the second place that the respondent, as the head and representative of a religious institution, has a right guaranteed to him under article25 of the Constitution to practice and propagate freely the religion of which he and his followers profess to be adherents.
- 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 religious 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.
- The High Court has found that the Math in question is in charge of the Sivalli Brahmins who constitute a section of the followers of Madhwacharya. The judgment of the High Court where the learned Judges summed up their decision on this point stands as follows:
“To sum up, we hold that the following sections are ultra vires the State Legislature in so far as they relate to this Math: and what we say will also equally apply to other Maths of a similar nature.
The sections of the new Act are: sections 18, 20, 21, 25(4), section 26 (to the extent section 25(4) is made applicable), section 28 (though it sounds innocuous.
it is liable to abuse as we have already pointed out earlier in the judgment), section 29, clause (2) of section 30, section 31, section 39(2), section 42, section 53 (because courts have ample powers to meet these contingencies), section 54, clause (2) of section 55, section 56, clause (3) of section 58, sections 63 to 69 in Chapter VI, clauses (2), (3) and (4) of section 70, section 76, section 89 and section 99 (to the extent it gives the Government virtually complete control over the Mathadhipati and Maths).”
Contentions by parties
- Appellant’s arguments
- On behalf of the appellant, the contention raised is that the contribution levied is a fee and not a tax and the learned Attorney General, who appeared for the Union of India as intervener in this as well as in the other connected appeals, made a strenuous attempt to support this position.
- The contention is that a Math does not come within the description of a religious denomination as provided for in the article and even if it does, what cannot be interfered with is its right to manage its own affairs in matters of religion only and nothing else. It is said, that the word “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 does not form an essential part of it. Reference is made in this connection to clause (2) (a) of article 25and clause (d) of article 26
- It was alleged inter alia that the Board was actuated by bias against the petitioner and the action taken by it with regard to the settling of a scheme was not a bona fide act at all.
- The main contention, however, was that having regard to the fundamental rights guaranteed under the Constitution in matters of religion and religious institutions belonging to particular religious denominations, the law regulating the framing of a scheme interfering with the management of the Mathand 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.
- Respondent’s arguments
- The contention, which has been raised in reference to article 27 of the Constitution is that the word “taxes”, as used therein, is not confined to taxes proper but is inclusive of all other impositions like cesses, fees, etc.
- It is stated that respondents raised only general contentions which were later disposed off.
- Attorney General’s contentions as intervener
- A point was suggested by the learned Attorney-General 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.
- The learned Attorney-General lays stress upon clause (2) (a) of the article and his contention is that all secular activities, which may be associated with religion but do not really constitute an essential part of it, are amenable to State regulation.
- The learned Attorney-General has argued in the first place that our Constitution makes a clear distinction between taxes and fees.
- Learned Attorney-General that in the present day concept of a State, it cannot be said that services could be rendered by the State only at the request of those who require these services.
Judgment by Supreme Court:
It was held that article 27 of the Constitution is not attracted to the facts of the present case.
The result, therefore, is that sections 21, 30(2), 31, 56 and 63 to 69 are the only sections which should be declared invalid as conflicting with the fundamental rights of the respondent as Mathadhipati of the Math in question and 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.
- Section 76(1) of the Act is void as the provision relating to the payment of annual contribution contained in it is a tax and not a fee and so it was beyond the legislative competence of the Madras State Legislature to enact such a provision.
- The imposition under art.76 (1) of the Act, although it is a tax, does not come within the latter part of art. 27 because the object of the contribution under the section is not the fostering or preservation of the Hindu religion or any denomination under it but the proper administration of religious trusts and institutions wherever they exist.
- The word “property “as used in art. 19(1)(f) of the Constitution should be given a liberal and wide connotation and should be extended to all well-recognized types of interest which have the insignia or characteristics of proprietary right.
- The ingredients of both office and property, of duties and personal interest are blended together in the rights of a Mahant and the Mahant has the right to enjoy this property or beneficial interest so long as he is entitled to hold his office. Therefore he is entitled to claim the protection of art. 19(1) (f).
- A tax is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment for services rendered.
- It is not possible to formulate a definition of fee that can apply to all cases as there are various kinds of fees. But a fee may generally be defined as a charge for a special service rendered to individuals by some governmental agency. The amount of fee levied is supposed to be based on the expenses incurred by the Government in rendering the service, though in many cases such expenses are arbitrarily assessed.
- The distinction between a tax and a fee lies primarily in the fact that a tax is levied as part of a common burden, while a fee is a payment for a special benefit or privilege.”
- Angurbala Mullick vs. Debabrata Mullick 1951
- The State of West Bengal vs. Subodh Gopal Bose and Ors.1953
Overruled / Reversed by:
- State of HP v. Shivalik Agro Poly Products, (2004) 8 SCC 556
The case discussed if Sections 21, 30(2), 31, 55, 56 and 63 to 69 of the Madras Hindu Religious and Charitable Endowments Act, 1951 were ultra vires to Articles 19(1)(f), 25 and 26 of the Constitution of India, the meaning of the word ‘property’ in Article 19 (1) (f) of the Constitution, and the distinction between tax and fee were scrutinised.
It was held by the judges that the sections under question were ultra vires and Section 76 (1) of the Madras Hindu Religious and Charitable Endowments Act, 1951 was void.
It was also held that an imposition under Section 76 (1) of the Act did not come in the latter part of Article 27 of the Constitution despite it being a tax since the objective of contribution under the section was proper administration of religious trusts and institutions