TMI Blog1962 (11) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... nding usage by the Swamis of the eight Maths in turn, each Swami administering for two years. There is also the Sri Kanchi Kamakoti Peetam Math of which Shree Sankaracharya Swamigal is the presiding head. These ten appeals are directed against orders passed by the High Court of Madras refusing to declare the provisions aforesaid ultra vires the State Legislature. In order to ensure proper management of Hindu religious endowments, the Provincial Legislature of Madras enacted the Hindu Religious Endowments Act. II of 1927. The Act made divers provisions for enforcing supervision over the management of Hindu endowments, and a Board was constituted for that purpose. In exercise of the authority under the Act several restrictions were placed upon the powers of the trustees of religious endowments, schemes were framed for administration thereof and executive officers were appointed to administer Maths and other religious endowments. An enquiry was commenced before the Hindu Religious Endowments Board for ascertaining whether in the interests of the Shirur Math (one of the eight maths at Udipi) a scheme for the administration of the Math be framed, it being alleged that the affairs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur mutt ([1954] S. C. R. 1005). The Madras Legislature amended Act XXVII of 1954 which received the President s sanction on September 22, 1954, and thereby provisions which were declared by this Court ultra vires, were altered or omitted and some new provisions were enacted with a view to make the enactment consistent with the law declared by this Court. Petitions were then filed by the appellants-heads of ten maths--challenging the validity of diverse provisions of the amended Act. The High Court by its order dated April 25, 1955 declared ss. 21, 30 (2), 31 and 76 (5), and Rule 10 framed under s. 100(2) invalid. The High Court, however, upheld the validity of ss. 52 (1) (f), 55, 76 (1) (2), 80, 81 and 82. In these appeals the Swamis of the maths contend that the provisions declared valid by the High Court infringe the fundamental rights of the Swamis or are beyond the authority of the State Legislature. It may be observed initially that we are dealing with the validity of the impugned provisions in their application to maths and not to religious institutions such as temples o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the Court may, in a suit instituted thereunder, remove the trustee of a Math or of a specific endowment, if the Conrt is satisfied that the grounds set up exist and also that it is in the interest of the institution to remove the trustee. Grounds (a), (b), (c), (d) and (h) are grounds of personal infirmity of the trustee; grounds (e), (f), (i) and (i) deal with conduct inconsistent with the exercise of the duties of a trustee. Clauses (f), (g) and (h) were inserted by Madras Act XXVII of 1954. Apart from cl. (c) which regards breach of trust as entailing liability for removal, cls. (f), (g), and (i) have been enacted by the Legislature with a view to entail such liability when the trustee of a math is guilty of improper conduct qua property of the math notwithstanding his special rights in that property. It is urged by counsel for the appellants that s. 52(1)(f) which enables a suit to be filed on the score of waste of funds or properties of the institution or application of such funds or properties for purposes unconnected with the institution, infringes the fundamental right of the Mathadhipati under Art. 19(1)(f) of the Constitution. In order to ascertain the true scope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y governed by custom and usage. In The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt ([1954] S. C. R. 1005.) (to which we have already referred in setting out the history of this case) Mukherjea, J., speaking for the Court, observed : He is certainly not a trusteee in the strict sense. He may be 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 right to describe Mahantship as a mere office. A superior of a Math has not only duties to discharge in connection with the endowment but he has a personal interest of a beneficial character which is sanctioned by custom and is much larger than that of a Shebait in the debutter property. x x x x x x x x x Thus in the conception of Mahantship, as in Shebaitship, both the elements of the office and property, or 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , by virtue of Art. 19 ( 1) (f ) read with cl. (5) be void. Reasonableness of the restrictions which may be placed upon that right must be adjudged in the light of the character and the extent of that right, and the general interest of the public which may be served by the restrictions. In Arunachallam Chetty v. Venkatachalapathi Guruswamigal ((1919) L. R. 46 I.A. 204,224) the Judicial Committee of the Privy Council observed that the Mahant is under an obligation not to utilise the surplus income after defraying the expenses of the math for personal enjoyment but is bound to add the same to the capital of the estate administered. At p. 226 the judicial Committee dealing with the accummulated income in the hands of the receiver who had been appointed during the pendency of a suit observed : Under the decree quoted the gurukkal would be entitled to instant possession and entire beneficial enjoyment of that sum. If the present purposes of the math did not consume it, he could employ it for his personal use quite apart from the dignity of his office. It is plain to their Lordships that this would be not only a subversion of the usage and custom of the math, but would be a violat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... moral purposes does not seem to be war-ranted by anything contained in the judgment of this Court. The observation is founded on a dictum of the High Court in the judgment under appeal in that case, but there is no indication that this Court approved that view. This Court has instead pointed out that the Mahant has to discharge the duties of a trustee qua the institution and is answerable as such. We deem it necessary also to state that having regard to the larg e powers which the Mahant has over the application of the funds not only for the maintenance of the dignity of his office, and expenses for the maintenance of the math but also for such purposes religious or charitable as are not inconsistent with the usage and custom of the endowment, application of the funds for personal enjoyment or luxury by the Mathadhipati or for purposes wholly unconnected with the institution, would alone be covered by the second part of s. 52 (1) (f). In our view the provision which authorises the institution of a suit for removal of a Mahant where he is found to have wasted the funds or properties of the institution or has applied such funds or properties for purposes wholly unconnected with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f pathakanika that is to say, any gift of property made to him as the head of the math and shall be entitled to spend the said pathakanika in accordance with the customs and usages of the institution . By express enactment the expression pathakanikas for the purpose of s. 55 as amended, means gifts of property made to a Mahant as the head of the Math. By that section, the Mahant is required to keep regular accounts of receipts of such gifts and is entitled to spend the same in accordance with lie customs and usages of the institution, for such pathakanikas received by the Mahant are gifts to the Mahant as the head of the math and therefore in trust gifts to the Math. Obligations imposed upon the Mahant to maintain regular accounts of the receipts of pethakanikas of the character defined in s. 55 and to utilise the same in Accordance with the customs and usages of the institution cannot be regarded as an unreasonable restriction upon the fundamental right of the Mahant. A Mahant being bound to discharge the duties of a trustee and being answerable as such, a provision requiring him to maintain accounts of such pathakanikas would conduce to the effective exercise of the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contrary contained in any scheme settled or deemed to be settled under this Act for the religious institution concerned. (4) The Government shall pay the salaries, allowances, pensions and other beneficial remu-neration of the Commissioner, Deputy Commissioners, Assistant Commissioners and other officers and servants (other than executive officers of religious institutions) employed for the purposes of this Act and the other expenses incurred for such purposes, including the expenses of Area Committees and the cost of auditing the accounts of religious institutions. The Court in the earlier case pointed out that the levy of an annual contribution permitted by s. 76(1) on a religious institution was in the nature of a tax. The Court observed that in so far ass. 76 spoke of the contribution being levied in respect of the services, it had the appearance of a fee, but the contribution levied was made dependent upon the capacity of the payer and not upon the quantum of benefit that was supposed to be conferred on any particular religious institution, that the institutions which came under the lower income group and had income less than ₹ 1,000/- annually were excluded from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitutions, and audit fee from religious institutions of which the income is ₹ 1,000/- or more, but all the amounts collected under cls. (1) and (2) have to be spent for meeting the expenses in connection with the performance of the duties rendered to the religious institutions and for no other purposes. By section 81 (1) a separate Fund called The Madras Hindu Religious and Charitable Endowments Administration Fund is constituted and that Fund vests in the Commissioner, and by cl. (2) of that section the contributions payable under s. 76 (1) and the audit fee payable under s. 76 (2) when realized are credited in the said Fund. The two principal objections against the levy of the contribution under s. 76 before it was amended were (1) that the money raised by levy of the contribution was not earmarked or specified for defraying the expenses that the Government had to incur in performing services. All the collections went to the Consolidated Fund of the State and all the expenses were not met out of the collections but out of the general revenues by a proper method of appropriation as is done in case of other Government expenses, and (2) that there was a total absence of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he expenditure incurred out of the accumulations. No attempt was made before the High Court to establish that the levy of contribution at the rate of five per cent was so exorbitant that it could be said to have no true relation to the value of the services rendered to the endowments by the administration. Our attention was also invited to a statement of account showing that the Commissioner received when the Act of 1951 was brought into force a total investment in fixed deposits, Government stock certificates, debentures of co-operative land mortgage bank, national savings certificates and in banks a total account exceeding ₹ 18 lakhs. But this is the accummulation during a period of nearly 25 years when the Act of 1927 was in operation. There is no evidence on the record as to the sources from which the fund was accummulated. From this statement of account it would not be possible to infer that the contributions under s. 76(1) of the Act of 1951 were wholly disproportionate to the value of the services to be rendered. A levy in the nature of a fee does not cease to be of that character merely because there is an element of compulsion or coerciveness present in it, nor is it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ributions and further sums, as the case may be, paid to the Commissioner under section 76(1) and section 76(2) as amended by the Madras Hindu Religious and Charitable Endowments (Amendment) Act, 1954. (2)The Government shall pay to the Commissioner the balance, if any, remaining out of the aggregate of the contributions and further sums paid or realized before the commencement of the Madras Hindu Religious and Charitable Endowments (Amendment) Act, 1954, in pursuance of section 76(1) and section 76(2), after deducting therefrom sums paid by the Government under section 76(4). It is true that the contributions levied under s. 76(1) of the Act before it was amended had the characteristic of a tax, and the levy thereof was accordingly struck down. But the Legislature had power to enact appropriate retrospective legislation declaring these levies as fees by denuding them of the characteristics which went to make the levies of the nature of a tax. By the express provision contained in subsection (1) of s. 82 the rates prescribed under s. 76(1) or determined by the Commissioner under s.76(2), under the Act as originally enacted were to be deemed rates prescribed under ss. 76(1) or de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ament under Art. 286(2) is a legislative power, and such a power conferred on a Sovereign Legislature carries with it authority to enact a law either prospectively or retrospectively, unless there can be found in the Constitution itself a limitation on that power. And it was held that the law was within the competence of that Legislature. We must therefore hold that the Validation Act is not ultra vires the powers of the legislature under entry 54, for the reason that it operates retrospectively. The State Lagislature has power to levy a fee under the Seventh Schedule, List III, Item 28 read with item 47. The Legislature was, therefore, competent to levy a fee for rendering services in connection with the maintenance, supervision and control over the religious institutions and it was competent to levy the fee retrospectively. If the amounts received by the State have been expressly regarded as fee collected by the Commissioner tinder the provisions as amended and account has to be made on that footing between the Government and the Commissioner, challenge to the vires of s. 82 (2) must fail. In our view the High Court was right in declaring ss. 52(1)(f), 55, 76(1) (2), 80 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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