Case: State Of Rajasthan And Ors Vs. Sajjanlal Panjawat &amp; Ors

purpose without reference to any special benefit to be conferred on the payer of the tax, that is to say, that the levy of tax Is for the purposes of general revenue, which when collected forms part of the public revenues of the State. A fee on the other hand is payment for a special benefit or privilege which the individual receives. It is regarded as a sort of a return or consideration for services rendered and should on the face of the legislative provision be correlated to the expenses incurred by Government in rendering the services.In that case Section 76 (1) of the Madras Hindu Religious and Charitable Endowments Act, 1951 (Madras Act XIX of 1951) which related to the payment of annual contribution stated that it was for the purpose of properly administering the religious trusts and institutions wherever they existed. In determining whether that levy was a tax or a fee one of the material facts taken into consideration to negative the theory that it was a fee was 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 the services. All the collections went to the Consolidated Fund of the State and all the expenses had to be met not out of those collections but out of the general revenues by a proper method of appropriation as was done in case of other Government expenses. Though this was so it was nonetheless observed at p. 1044: "That in itself might not be conclusive". But as there was total absence of any correlation between the expenses incurred by the Government and the amount railed by contribution under the provision of S. 76, it was observed that the theory of a return or counter- payment or quid pro quo could not have any possible application to that case. This case was considered in Secy. Govt. of Madras Home Department v. Zenith Lamp and Electrical Ltd. CA No. 293 of 1967, D/10-11-1972 = (reported in AIR 1973 SC 724 e 1973 Tax LR 581) by the Constitution Bench of this Court, of which one of us (Dwivedi, J.) was a party. Sikri, C. J., referring to the observations of Mukherjea, J., in Sri Lakshmindra Thirtha Swamiars case 1954 SCR 1005 = (AIR 1954 SC 282 ) that the fact that collections went to the Consolidated Fund was not in itself conclusive thought that not much stress can be laid on this point, because Art. 266 of the Constitution requires that all revenues raised by the State shall form part of the Consolidated Fund. He considered the observations of the Privy Council in Attorney-General for British Columbia v. Esquimalt and Nanimo Rly Co., 1950 AC 87 and distinguished it, because the Privy Council did not have to deal with fees and taxes but interpreted the word taxation" in Section 22 of the Act therein considered, to mean a compulsory levy by the State. Whether it was fee or tax did not matter. The only question was whether it was a compulsory levy. In the Zenith Lamp and Electrical Ltds case it was found that there was not enough material to determine whether the fees taken in Courts under Entry No. 3 of List II of Schedule VII to the Constitution were taxes or fees namely, whether the State was making a profit out of the administration of civil justice or whether the amounts so collected from those fees were spent on the administration of civil justice. In that view the case was remanded to the High Court to decide whether the impugned fees were court-fees or taxes on litigants or litigation.41.The case of the State in this case is that the fee is a sort of contribution levied on public trusts towards meeting the expenses incurred by the State Government in rendering services to the public trusts through the agency of the Devasthan Department and that according to the budget provisions for the year 1964-65 the expenditure on the Devasthan Department was Rs. 2,76,715/- as against the income of only Rupees 3,000/for the same year from the registration fee. This averment in the reply of the Commissioner.Devasthan Department was not controverted by the petitioners either by a reply thereto or by any other material produced by them.In these circumstances, the mere fact that She amount was paid under R. 18 into the Consolidation Fund is by itself not sufficient to hold that the levy under Section 17 (3) of the Act is tax the income by way of fees is far below the expenditure incurred on the Devasthan Department, the levy would be a fee. In this view, Section 17 (3) cannot be held to be invalid and ultra vires the powers of State Legislature. We express no opinion on the question whether Section 17 (3) can be declared to be invalid on account of Rule 18 requiring the fee to be deposited in the State Consolidated Fund.42. In Civil Appeal No. 1647 of l967 the Act has been challenged on the grounds similar to these in the other appeals and no separate arguments were addressed, except those advanced by the respondents Advocate in the other appears this appeal also will be decided accordingly. The question whether the two temples which the State contended were public trusts and the Petitioner averred were his private property was not agitated before the High Court, as the petitioner was then content to have the matter disposed of in accordance with the decision in the Writ Petition which is the subject matter of the second set of appeals. It was open to him to have invited the High Court to give a finding on the question whether the two temples were his private property, but since he has not done so the question cannot be gone into in this appeal. The appropriate authority under the Act will however decide this question before applying the Act to these temples.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In our view, the question whether the temple is a Swetamber Jain temple or a Digamber Jain temple as contended by. the interveners does not arise for decision in these appeals firstly. because, if the management had vested in the State of Rajasthan under a preconstitution law and that law cannot be challenged under the Constitution, the right of the State to administer and manage the temple is unassailable; secondly, even if the right of the State to manage the temple after the Constitution came into force can be successfully challenged as offending the provisions of Arts. 25 and 26 of the Constitution, the management of the temple by the State will be held to be ultra vires sad illegal. And in that event the Court need not go further.In our view, however without going into the question whether the temple is a Swetamber or a Digamber Jain temple, it will be sufficient for us to consider whether the temple is a Jain temple, or as alleged by the State a Hindu temple, on a consideration of all the documents admitted, which the State has not, and cannot challenge, we have no doubt that Shri Rikhabdevji temple is a Jain temple and the State of Rajasthan has produced no evidence to the contrary to show that it is a Hindu temple where Jains of all sects as well as Hindus of all sects including the Bhils are allowed tosubmission, in our view, is not justified, because not only was it specifically Proclaimed that the Constitution was being promulgated, but by the notification of October 11, l947, it was further declared that the Constitution that was proclaimed on May 23, 1947, was amended that day, namely on October 11, 1947. It may further be pointed out that pursuant to the amendment an Advisory Body was constituted on March 20, 1948, with the Maharana as its President, Major General Rao Manohar Sinhaji as Vice-President and eight other members; named therein.From evidence it appears clear that for quite some time before the promulgation of these Constitutions the management of Shri Rikhabdevji temple had been taken over by-the erstwhile Ruler of Udaipur State, and by virtue of the Constitutions it had finally vested in the-State and was-being managed by the Maharana with the Advisory Body.The Constitutions under which the properties and management of the temple had vested in the Ruler, and thereafter in the State continued to be law by virtue of Art. 372 of the Constitution till it was repealed by the impugned Act. Since the respondents lost the right to manage and administer the temple and its properties prior to the Constitution by a valid law, they cannot now regain that right on the plea that that law contravenes the right guaranteed under Art. 26 (d) of the Constitution.Bearing in mind the scope of clauses (b) and (d) of Art. 26 as expounded in the decisions of this Court if, as we have held, the right of management of Rikhabdevji temple is lost as it is vested in the State, the respondents cannot complain of any infringement of their fundamental rights to manage and administer its affairs, and as such the High Court was in error in giving the impugned directions. In the view we have taken, the validity of the provisions of the Act which have been challenged does not fall for consideration in the first set of appeals and it has also been so held by the Highthe above text it appears to us clear that there is no prohibition from increasing the Deva-Dravya. On the other hand it permits the increase of Deva-Dravya though not by the methods specifically enumerated therein. Even in respect of these prohibited methods exceptions have been permitted. The State can, therefore, by law relating to the administration of the public trusts direct the investment of properties of the trust in a specified manner and in specific investments so as to protect the corpus from being dissipated or depreciated and to assure a regularour view, this contention has no validity. What was injuncted was that investments will no be made by the trustees themselves for the purposes forbidden in the scriptures.From this it cannot be inferred that the Jain religion has forbidden the deposit in banks or any institutions mentioned in S. 30 of the Act. We think that such an argument is far-fetched.This rule provides that for the purpose of ascertaining the wishes of the persons interested under sub-sec. (5) of Section 53, the State Government shall direct the Assistant Commissioner to issue a public notice in such manner as he may think proper for inviting suggestions for the constitution of the Committee of management. The Assistant Commissioner, shall forward the suggestions so received along with his comments, to the State Government through the Commissioner. The State Government may thereafter vest the management of a public religious trust under subs. (1) of Section 53 in a Committee so appointed under sub-s. (5) of that section. We are not relying on this rule for testing the constitutionality of S. 53 (5).In our view, the hypothesis on which the High Court has based its conclusions is not warranted by the provisions of sub-s. (5) of S. 53 of the Act. In the first category, apart from the Committee being constituted from amongst the trustees of public trusts representing the same religion the Committee can also be constituted from amongst the trustees of the same persuasion. The significance of the word persuasion and what it connotes does not seem to have been considered by the High Court. The word persuasion is a synonym of faith, creed, denomination religion etc. Websters Third New International Dictionary Vol. II, p. 1688, gives the meaning of "persuasion" among others (a) as "a system of religious or other beliefs (the several protestants.......... );(b) a group, faction, sect, or party that adheres to a particular system of beliefs or ideas or promotes a particular view, theory, or cause...". The same dictionary in Vol. I gives the meaning of "denomination" at p. 602 as "a religious group of a community of believers called by the same name." In other words in the first category also a Committee can be appointed from persons of the denomination to which the trust belongs as in the second category with this difference that in the first category if the State Government chooses, it can appoint it from the trustees representing that denomination or persuasion while in the third category from amongst the persons who belong to the said denomination who may not be trustees as such. It is significant to note that persons interested falling in the second category have been defined by sub-s. (9) of Section a as including for the purposes of temples and maths in clauses (a) and (b), namely; (a) in the case of a temple, a Person who is entitled to attend or is in the habit of attending the performance of worship or service in the temple or who is entitled to partaking or is in the habit of partaking in the distribution of gifts thereof, (b) in the case of a math, a disciple of the math or a person of the religious persuasion to which the math belongs". Even where the persons interested satisfy the above requirements the additional requirement of clause (b) of sub-e. (5) of S. 53 is that such persons must be also persons for whose benefit the trust was founded.A reading of clause (a) of sub-s. (5) clearly indicates that the trustees must represent the concerned religion or persuasion, which includes a denomination. It could not have been the intention to appoint a Committee of management comprising trustees of a public trust of a particular religion or persuasion who do not belong to that religion or persuasion or denomination. Nor does clause (b) of sub-e. (5) of Section 53 empower persons who do not belong in a denomination to be appointed to a public trust of that denomination. Again the word "denomination" is wide enough to include sections thereof, and it cannot therefore be said. as the High Court seems to assume, that a section of the denomination managing the property may not be the same as trustees of public trusts representing the same religion, even if the public trust has the same object as that of the public trust the management of which is being transferred to the Committee. If Section 53 (5) (a) is read in the manner suggested by us, as it should be, the difficulties pointed out by the High Court would not arise at all.37. It appears to us, therefore that merely because the provisions of sub-e. (5) of Section 53 enable the Government to appoint a Committee from the two categories specified in that clause. it does not mean that the Government wiI1 appoint or can appoint persons who are not constitutionally entitled to be appointed to that particular trust. If the temple is a Swetamber temple, merely - because the Digambers, like Swetambers, are also Jains, it does not empower the Government to appoint them as a Chairman and members of the Committee of management. The very fact that the Legislature has provided fort the ascertainment of the general wishes of the persons interested is a positive direction to the State Government to take those wishes into consideration in the manner to be prescribed by the Rules framed under the Act. This provision furnishes, in our view, a safeguard against the appointment of the Chairman and the members of the Committee to manage the trusts, who do not subscribe or adhere to the tenants of a particular religion or denomination to which the trust belongs. No such appointment can be made which contravenes the fundamental rights guaranteed under Arts. 25 and 26 of the Constitution, and if any such appointment is made, those who have a right to challenge it can do so and have the appointment struck down. In this view clause (e) of sub-s. (1) of S. 52 read with sub- s. (5) of S. 53 as interpreted by us cannot be held to becase of the State in this case is that the fee is a sort of contribution levied on public trusts towards meeting the expenses incurred by the State Government in rendering services to the public trusts through the agency of the Devasthan Department and that according to the budget provisions for the year 1964-65 the expenditure on the Devasthan Department was Rs. 2,76,715/- as against the income of only Rupees 3,000/for the same year from the registration fee. This averment in the reply of the Commissioner.Devasthan Department was not controverted by the petitioners either by a reply thereto or by any other material produced by them.In these circumstances, the mere fact that She amount was paid under R. 18 into the Consolidation Fund is by itself not sufficient to hold that the levy under Section 17 (3) of the Act is tax the income by way of fees is far below the expenditure incurred on the Devasthan Department, the levy would be a fee. In this view, Section 17 (3) cannot be held to be invalid and ultra vires the powers of State Legislature. We express no opinion on the question whether Section 17 (3) can be declared to be invalid on account of Rule 18 requiring the fee to be deposited in the State Consolidated Fund.42. In Civil Appeal No. 1647 of l967 the Act has been challenged on the grounds similar to these in the other appeals and no separate arguments were addressed, except those advanced by the respondents Advocate in the other appears this appeal also will be decided accordingly. The question whether the two temples which the State contended were public trusts and the Petitioner averred were his private property was not agitated before the High Court, as the petitioner was then content to have the matter disposed of in accordance with the decision in the Writ Petition which is the subject matter of the second set of appeals. It was open to him to have invited the High Court to give a finding on the question whether the two temples were his private property, but since he has not done so the question cannot be gone into in this appeal. The appropriate authority under the Act will however decide this question before applying the Act to these temples.