VASUDEVA PALAMANGALATHAYA Vs. STATE OF KERALA

JUDGEMENT

(1.) THE prayers in this petition under Article 226 of the Constitution,by the managing trustee of a temple,are to bring up the records for quashing a demand made on him,under S.76,sub -s.( 1)and(2)of the Madras Hindu Religious and Charitable Endowments Act,1951,as amended by the Amendment Acts XXVII of 1954 and IX of 1956,hereinafter referred to as the Act,for the payment of contribution and audit fee,in respect of the temple,and to strike down the above provisions of the Act as ultra vires the powers of the Legislature of the State which passed it.S.76(1)and(2 ),as they now stand,may be extracted below: 76(1 ). "In respect of the services rendered by the Government and their officers and for defraying the expences incurred on account of such services,every religious institution shall,from the income derived by it,pay to the Commissioner anually such contribution not exceeding five per centum of its income as may be prescribed." (2 )."Every religious institution,the annual income of which,for the fasli year immediately preceding as calculated for the purposes of the levy of contribution under sub -s.( 1 ),is not less than one thousand rupees,shall pay to the Commissioner annually,for meeting the cost of auditing its accounts,such further sum not exceeding one and a half per centum of its income as the Commissioner may determine."

(2.) THE contention of the learned counsel for the petitioner was,that the contribution under S.76(1)and the audit fee under S.76(2 ),are in the nature of a tax,which the State Legislature is not competent to impose,and not of a fee.Under sub -s.( 1)and(2)of S.76,as originally enacted,the contribution and the audit fee were payable to Government annually,and were therefore merged in the general revenues of the State,the expenses for which they were raised,being met out of them,though perhaps by a proper method of appropriation.On this and other grounds which need not be detailed,these collections were held to be in the nature of a tax and not of a fee,and S.76,before it was amended,was struck down,by the Supreme Court in Commissioner,Hindu Religious Endowments,Madras v.L.T.Swamiar of Sri Shirur Mutt,AIR 1954 SC 282.At the same time,in Sri Jagannath Ramanuj Das v.State of Orissa,AIR 1954 SC 400,the corresponding provision,S.49,of the Orissa Hindu Religious Endowments Act,IV of 1939,and in Ratilal Panachand Gandhi v.State of Bombay,AIR 1954 SC 338,the corresponding provision Section 58,of the Bombay Public Trusts Act,1950,both of which provided for the payment of contribution,not to Government,but into a separate fund constituted under,and earmarked for carrying out the purposes of,each of the above statutes,were held to be valid.A similar provision in Section 70(1)of the Bihar Hindu Religious Trusts Act,1950 was also held to be valid by the same court,in the more recent case of Moti Das v.S.p.Sahi,A.I.R.1959 S.C.942 at 950,following Sri.Jagannath Ramanuj Das v.State of Orissa.The ratio of these cases decided by the Supreme Court,as distinguished from the case under the Act,referred to above,was,that the contributions under the concerned statutes were earmarked for carrying out their purposes and therefore co -related to the expenses which they were intended to defray,and did not partake of the characteristics of a tax,and were in the nature of a fee.The gradation of the amount of the levy in proportion to the gross annual income of the payer,was treated as inconsequential in the case under the Bombay statutes.

(3.) IT was faintly argued,that audit had not been conducted for the period in question,and so no audit fee is "payable.A general objection had of course been taken in the affidavit,that the services for the performance of which the contribution is levied,and the audit,for the conduct of which the fee is imposed,had not been performed or conducted.In my view,the legality of the rule cannot to made to depend on,whether or not I n a particular year,the services or any part of them or the audit,had been performed or conducted.If the petitioner was serious about this,he could have taken the point in the revision petition which he had preferred to Government under Section 99(1 ).For the foregoing reasons I decline to go into it. The petition is therefore groundless,and is dismissed with costs,including advocate's fee Rs.150/ -