Contact us   Feedback   Annual Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

1954 (3) TMI 75 - SUPREME COURT

1954 (3) TMI 75 - SUPREME COURT - 1954 AIR 400, 1954 (0) SCR 1046 - Writ Petition No. 405 of 1953 - Dated:- 16-3-1954 - MUKHERJEA, B.K., HASAN, GHULAM, MAHAJAN, MEHAR CHAND (CJ), DAS, SUDHI RANJAN AND BOSE, VIVIAN. N. C. Chattanooga (B. K. Saran and B. C. Pratt, with him), S. P. Sinclair (B. K. Saran and R. C. Pratt, with him) for the Appellants. M. C. Seth (G. N. Jose, with him) for the Respondent. JUDGMENT: The Judgment of the Court was. delivered by MUKHERJEA J.-These two connected matters ar .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ive 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 endowment" has been defined comprehensively in the Act as meaning all property belong to or given or endowed for the support of Maths o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nd 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 ₹ 250, is required under section 49 of the Act to pay an annual contribution at certain percentage of the annual income which increases I progressively with the increase in the income. With this contribution as well as loans and grants made by the Government, a special fund is to .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tial reliefs. The validity of the Act was challenged substantially on three grounds, namely, (1) that the subject matter of legislation was not covered by Entry 34 of List 11 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 Prov .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

mber. 1949, affirmed the decision 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 up .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nged as invalid on the ground that they invade the fundamental rights of the petitioners guaranteed under articles 19(1) (f), 25 26, and, 27 of the Constitution. The other branch of the contention 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

roceed 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

stricted. 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 of the affairs of the religious institutions. The care, which he has to exercise, is What is demanded normally of every -trustee in charge of trust estate and the standard is that of a man of ordina .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

cer, 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 mete administrat .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

inally 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 sub- section (4), the order passed by the Commissioner has been made final and conclusive. Strangely, however, section 41 o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ive 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 v .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ection 47 (1) lays down how the rule of cy press is to be applied not merely when the original 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 section47gives the party aggrieved by any order of the Commissioner in t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

es 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 enact 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

blic purposes, the payment of which is enforced by law. But the essential thing in a tax is that the imposition 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 of 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

lingly. But this by itself is not enough to make 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 Commiss .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rendering of services involved in carrying out the provisions of the Act. We think, therefore, that according to the Principles which this court has 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 levy is graded according to the capacity of the payers though it gives it the appearance of an income-tax, is not by any me .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version