ivil Appeal No 1 770 of 1972
Appeal by Special Leave from the Judgment and order dated 30th November 1971 of the Orissa High Court in OJC No 48 of 1968
P K Chatterjee and Rathin Dass for the Appellant
section V Gupte Attorney General and G section Chatterjee for the Respondent
The Judgment of the Court was delivered by TULZAPURKAR J
The short question raised in this appeal by special leave is whether section 81 of the Orissa Agricultural Income Tax Act 1947 suffers from the vice of discrimination and as such hit by article 14 of the Constitution  The appellant is the Mahant of Emar Math at Puri which is an ancient public Hindu Religious Trust
The trust owns considerable endowed properties both agricultural and non agricultural
After the passing of the Orissa Agricultural Income Tax Act 1947 hereinafter called the Act  the appellant as a trustee has been assessed in the status of an individual  under the Act for the assessment years 1948 49 to 1967 68 in respect of the income derived from agricultural lands owned by the trust
It appears that these assessments have been made after granting the exemption under section 81 of the Act which provides that any sum derived from land held under such trust and actually spent for the said purposes charitable or 658 religious purposes shall not be included in the total agricultural income of such assessee
By a Writ Petition No 48 of 1968 filed under articles 226 and 227 of the Constitution the appellant challenged the constitutional validity of section 81 of the Act under which the assessments were made principally on the ground that section 81 was discriminatory and hit by article 14 of the Constitution inasmuch as under the said provision in respect of non Muslim public trusts created for religious or charitable purposes the exemption contemplated therein was confined to such agricultural income as was actually spent for the public purposes of charitable or religious nature while in the case of Muslim trusts wakfs the entire agricultural income whether spent for charitable or religious purposes or not was exempt from the operation of the Act under section 9 of the Act
The contention was refuted on behalf of the respondents
On an examination of the provisions of sections 8 and 9 in the context of the scheme of the Act the Orissa High Court negatived the said contention and dismissed the Writ Petition on November 30 1971
The appellant has come up in appeal to this Court
Since counsel for the appellant raised the self same contention before us in support of the appeal it will be desirable to set out the provisions of sections 8 and 9 of the Act in order to appreciate his submissions on the point
Section 8 runs thus 8
Exemption of charitable or religious trusts 1 Where the assessee is a trustee and the trust under which he holds the property is a trust created for public purposes of a charitable or religious nature any sum derived from land held under such trust and actually spent for the said purposes shall not be included in the total agricultural income of such assessee
2 In this section purposes of a charitable nature include relief of the poor education medical relief and advancement of any other object of general public utility
 Section 9 runs thus 9
Exemption of Wakf alal aulad
All agricultural income of Muslim trusts referred to in section 3 of the Musalman Wakf Validating Act 1913 created before the commencement of this Act shall be excluded from the operation of this Act Provided that the share of a beneficiary under a trust under the aforesaid Act commonly known as Wakf alal 659 aulad shall not be exempted and the tax may be realised from the mutawali and the basis of taxation shall be the share of each beneficiary
Explanation
For the purposes of this section a beneficiary means the settler his family children and descendants
 Since section 9 refers to Muslim trusts referred to in section 3 of the Musalman Wakf Validating Act 1913  it would be proper to set out the provisions of section 3 of the Musalman Wakf Validating Act 1913
Section 3 of that Act runs ac follows 3
Power of Mussalmans to create certain wakfs
It  shall be lawful for any person professing the Mussalman faith to create a wakf which in all other respects is in accordance with the provisions of Musalman law for the following among other purposes a for the maintenance and support wholly or partially of his family children or descendants and b where the person creating a wakf is a Hanafi Mussalman also for his own maintenance and support during his life time or for the payment of his debts out of the rents and profits of the property dedicated Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussalman law as a religious pious or charitable purpose of a permanent character Mr Mukherjee for the appellant contended that the exemption contemplated by section 81 of the Act is confined only to such part of the income derived from agricultural lands held under a public charitable or religious trust as is actually spent for the charitable or religious purposes while under section 9 all agricultural income of Musalman trusts wakfs irrespective of whether the same is spent on public purposes of charitable or religious nature or not is exempt from the operation of the Act in other words in the matter of granting exemption between the agricultural income of two types of public trust created for charitable or religious purposes the Act has practised hostile discrimination against agricultural income of non Muslim public trusts the classification having no reasonable nexus with the object sought to be achieved by the statute which is to tax agricultural income derived from lands and to exempt the income so derived 660 by a public charitable or religious trust
According to him though section 9 refers to all agricultural income of Muslim trusts referred to in section 3 of the Musalman Wakf Validating Act 1913 Act VI of 1913 the wakfs contemplated by section 3 of the said Act Act VI of 1913 include not merely Wakf alal aulad but also other wakfs where property has been permanently dedicated for any purposes recognised by the Musalman Law as religious pious or charitable and this he argued becomes clear from sub clause a of section 3 which speaks of wakf created by a Muslim for the maintenance and support wholly or partially of his family children or descendants in other words according to Mr Mukherjee section 9 of the Act is not confined to Muslim trusts known as wakf alal aulad but is applicable to all wakfs and therefore in case of wakfs other than wakf alal aulad the exemption granted by section 9 of the Act which is in respect of all agricultural income must be regarded as discriminatory as against the exemption granted by section 81 of the Act
He therefore urged that section 81 which grants a limited exemption would be violative of article 14 of the Constitution
On the other hand the learned Attorney General appearing for the respondents contended that section 9 is confined to Muslim trusts commonly known as wakf alal aulad and all other Muslim trusts are covered by section 81 of the Act with the result that to all such Muslim trusts other than wakf alal aulad the limited exemption is applicable
He urged that wakfs alal aulad do stand in a class by themselves and as such have been dealt with by section 9 in keeping with the objective of the Act
He further urged that sections 81 9 and 16 showed the scheme of the Act and if these provisions were considered in light of the main objective of the enactment it was clear that section 81 could not be held to be discriminatory or violative of article 14
Before considering the rival contentions touching the constitutional validity of section 81 of the Act it would be proper to keep in mind the main objective as well as the scheme of the Act particularly in regard to the charging provision and the provisions dealing with exemptions contained therein
The Act as its preamble would indicate has been put on the Statute Book with the object of imposing a tax on agricultural income derived from lands situated in the State of Orissa
Section 2a defines the expression agricultural income comprehensively
The charging provision is contained in section 3 which provides that agricultural income tax at the rate or rates specified in the Schedule shall be charged for each financial year in accordance with and subject to the provisions of this Act on the total agricultural income of the previous year of every person the proviso however states that no agricultural income tax shall be 661 charged on the agricultural income of the Central Government or any A State Government or any local body
Section 5 prescribes limits of taxable income while section 6 prescribes the method and manner of determining the agricultural income of every assessee
Then come the two material provisions dealing with exemptions namely sections 8 and 9 which have been reproduced above
The other material section which deals with exemption is section 16 which provides that agricultural income tax shall not be payable by an assessee in respect of any amount actually spent by him out of his total agricultural income for the benefit of the people of the State or for charitable purposes but this exemption is subject to the proviso that agricultural income tax shall be payable on the remainder of the total agricultural income of such assessee at the rate which would have been applicable if such deduction had not been made
It is unnecessary to refer to other provisions as they are not material for our purposes
The scheme if the Act as disclosed by the aforesaid provision is that under the charging provision agricultural income tax is levied on the total agricultural income of the previous year of every assessee subject to the exemptions which have been provided for under sections 8 9 and 16
It is also clear that whereas the exemption in regard to the amount actually spent for charitable purposes under section 81 is in relation to the agricultural income of a public charitable trust the exemption of similar nature and extent contemplated by section 16 is in regard to the agricultural income of any assessee who may not be a trustee owing lands under a public charitable trust in other words in either case the exemption is confined to such part of the agricultural income which is actually spent by the assessee for charitable purposes
The legislative intent of granting such a limited exemption having been thus clearly brought out by sections 881 and 16 of the Act the question would be whether by enacting section 9 the Legislature really intended to accord or has actually accorded favourable treatment to Muslim trusts in the matter of granting exemption in the manner suggested by counsel for the appellant  Having regard to the submissions made by counsel for the appellant the question raised for determination may be formulated thus Whether sections 8 and 9 while providing for exemption to charitable or religious trusts discriminate between agricultural income derived from lands held under non Muslim public trusts and those held under Muslim trusts and accord to the latter a favourable treatment as against the former by confining the exemption in the former case to such income as has been actually spent for public purposes of charitable or religious nature  In other words is section 81 which confers a limited exemption as compared to section 9 hit by article 14  It 662 has not been disputed before us that Muslim trusts known as Wakf alal aulad constitute a distinct class from other types of wakfs but the discrimination complained of is founded upon plea that section 9 of the Act covers all Musalman wakfs and not merely wakfs known as the Wakf alal aulad and therefore it will be necessary to examine the provisions of section 9 in order to ascertain whether the plea that it covers all Musalman wakfs is warranted or not
Section 9 in terms says that the exemption thereunder is confined to Muslim trusts referred to in section 3 of the Musalman Wakf Validating Act 1913 and the question is what wakfs are referred in section 3 of the Musalman Wakf Validating Act 1913 hereinafter called the Validating Act 
The Validating Act as we shall indicate presently was enacted only for the purpose of validating wakfs in the nature of wakf alal aulad As has been pointed out by this Court in Fazlul Rabbi Pradhan vs State of West Bengal and others1 wakfs which were primarily family settlements in which the benefits to charity or religion were either illusory or postponed indefinitely while the property so dedicated was being enjoyed from generation to generation by the family of the wakf were regarded as opposed to the rule against perpetuity as contained in the Indian Succession Act and the Transfer of Property Act
The leading decision of the Privy Council in that behalf rendered in Abul Fata Mahomed Ishak and others vs Russomoy Dhur Chowdhery and others2 caused considerable dissatisfaction in the Muslim community in India resulting in a representation being made to the Government of India and consequently the Validating Act came to be enacted with the primary Object of removing the difficulties created by that decision
The preamble of the Act makes this very clear
Section 3 declares the right of a person professing Musalman faith to create a wakf which in all other respects is in accordance with the provisions of Musalman law for the maintenance and support wholly or partially of his family children or descendants and in the case of a Hanafi Mussalman also for his own maintenance and support during the life time or for payment of his debts out of the rents of the property dedicated provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognised by the Musalman law as a religious pious or charitable purpose of a permanent character
Section 4 also declares that no such wakf as is referred to in section 3 shall be deemed to be invalid merely because of remoteness of benefit to charity
In fact section 3 s declaratory of a right of a Muslim to 1 A I R 2 22 Indian Appeals 76
663 create a valid wakf of the type described therein and the proviso makes it clear that but for the reservation of ultimate benefit to charity that has to be made such family settlement private wakfs would be invalid
It is conceivable that a deed or instrument of wakf may be a composite one partly incorporating public wakf and partly private wakf but section 3 of the Validating Act unquestionably refers to that part of the instrument which incorporates a private n wakf wakf alal aulad the vaildity of which must depend upon whether in that part of the instrument the ultimate benefit is expressly or impliedly reserved for charitable or religious purposes or not
It is thus clear that section 3 of the Validating Act refers only to Muslim trusts which are in the nature of wakf alal aulad
The exemption in section 9 of the Act therefore clearly applies only to Muslim trusts which are in the nature of wakf alal aulad
This is also clear from the marginal note to section 9 as well as the proviso to the section
If that be so then all other wakfs would squarely fall under section 81 and to all such wakfs the limited exemption contemplated therein would apply
Even if the instrument of wakf is a composite one partly incorporating a public wakf and partly a private wakf that part which deals with public wakf will fall under section 81 and the other part will be covered by section 9 for the language d section 81 is wide enough to include such a deed to the extent that it incorporates a public wakf
In other words Muslim trusts ie wakfs other than wakf alal aulad would be covered by section 8 1 and to such wakfs the limited exemption contemplated by section 81 would apply
If that be so the gravamen of complaint that all wakfs Muslim trusts other than wakf alal aulad are receiving favourable treatment as against non Muslim public charitable trusts must fall to the ground
As regards Muslim trusts which are in the nature of wakf alal aulad which alone are covered by section 9 the proviso clearly shows that the share of the beneficiary under such a trust far from being exempted is brought to tax and the tax is made realisable from the mutawali and read with the proviso the main provision really confines the benefit or exemption only to ultimate illusory or remote public charitable or religious purpose and is thus completely consistent with the object and scheme of the Act
In the result we are clearly of the view that section 81 of the Act is free from the vice of discrimination under article 14 of the Constitution and the said provision is perfectly valid and constitutional
The appeal is
therefore dismissed with costs
SR Appeal dismissed


Summary:
The appellant is the Mahant of Emhar Math of Puri which is an ancient Public Hindu Religious Trust
Being a trustee the appellant has been assessed in the status of an individual under the Orissa Agricultural Income Tax Act 1947 for the assessment years 1948 49 to 1967 68 in respect of the income derived from agricultural lands owned by the trust
These assessments were made after granting the exemption under section 81 of the Act which provides that any sum derived from land held under such trust and actually spent for the said purpose charitable or religious purposes shall not be included in the total agricultural income of such assessee
 The appellant challenged the constitutional validity of section 8 1 of the Act under which the assessments were made principally on the ground that section 81 was discriminatory and hit by article 14 of the Constitution in as much as under the said provision in respect of non public muslim trusts created for religious or charitable purposes the exemption contemplated therein was con fined to such agricultural income or was actually spent for the public purposes of charitable or religious nature while in the case of muslim trusts Waqfs the entire agricultural income whether spent for charitable or religious purpose or not was exempt from the operation of the Act under section 9 of the Act
The Orissa High Court negatived the said contention on an examination of the provisions of Sections 8 and 9 in the context of the scheme of the Act and dismissed the Writ Petition
Dismissing the appeal by special leave the Court
 HELD  1  section 8  1  of the Orissa Agricultural Income tax Act 1 947 is free from the vice of discrimination under article 14 of the Constitution and the said provision is perfectly valid and constitutional
663 G Hl 2 The scheme of the Act is that under the charging provision agricultural income tax is levied on the total agricultural income of the previous year of every assessee subject to the exemption which have been provided for under Sections 8 9 and 16
661 C D The legislative intent of granting of limited exemption is brought out by Sections 81 and 16 of the Act
Whereas exemption in regard to the amount actually spent for charitable purposes under section 81 is in relation to the agricultural income of a public charitable trust the exemption of similar nature and extent contemplated by section 16 is in regard to the agricultural income of any assessee who may not be a trustee owning lands under a public charitable trust in other words in either case the exemption is confined to such part of the agricultural income which is actually spent
by the assessee f charitable purposes
661 D E 657 3 Section 9 of the Act in terms says that the exemption thereunder is confined to Muslim Trusts referred to in section 3 of the Musalman Waqf Validating Act 1913
section 3 of the Validating Act refers only to muslim trusts which are in the nature of Waqf alal aulad
The exemption in section 9 of the Act therefore clearly applies only to Muslim Trusts which are in the nature of Waqf alal aulad
The marginal note to section 9 as well as the proviso to the section make this clear
662 B 633 B C If that be so then all muslim trusts other than Waqf alal aulad squarely fall under section 8  I  and to all such waqfs the limited exemption contemplated therein would apply
If that be so the gravamen of complaint that all waqfs Muslim Trusts other than waqf alal aulad are receiving favourable treatment as against non Muslim public charitable trusts must fall to the ground
663 C E As regards Muslim trusts which are in the nature of waqf alal aulad which alone are covered by section 9 the proviso clearly shows that the share of the beneficiary under such a trust far from being exempted is brought tb tax and the tax is made realisable from the mutawali and read with the proviso the main provision really confines the benefit of exemption only to ultimate illusory or remote public charitable or religious purpose anl is thus completely consistent with the object and scheme of the Act
663 F G Fazlul Rabbi Pradhan vs State of West Bengal  ors   applied