HIS HOLINESS SRI VANAMAMALAI, RAMANUJA JEER SWAMIGAL, HEAD OF THE VANAMAMALAI MUTT, THROUGH HIS AUTHORISED AGENT, S.R. SRINIVASAN Vs. THE COMMISSIONER, THE HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS

JUDGEMENT

(1.) HIS Holiness Sri Vanamamalai Ramanuja Jeer Swamigal, Head of Sri Vanamamalai Mutt, Nanguneri, Tirunelveli District, is the petitioner. Sri Vanamamalai Mutt is a well -known religious institution. The Tamil Nadu Hindu Religious and Charitable Endowments Act (XXII of 1959), hereinafter referred to as the Act, enables the Religious and Charitable Endowments Department, hereinafter called the Department, to levy contribution not exceeding seven per cent of the income of the Mutt as may be prescribed in respect of the services rendered by the Government and their officers and for defraying the expenses incurred on account of such services. Rules have been framed in G.O. No. 4920, Revenue, dated 30th November, 1960 and these rules are called the "Assessment, Levy and Recovery of Contribution, Costs Rules". Section 93 provides that notwithstanding anything contained in Sub -section (1) of Section 102, all costs, charges and expenses incurred by the Department as a party, to or in connection with, any legal proceeding in respect of any religious institution shall be payable out of the funds of such institution, except in cases where a liability to pay the same has been laid on any party or other person personally and the right to reimbursement under this section has been negatived in express terms. The rules enumerate the rates at which such contributions could be collected from all religious institutions, including mutts. Under the Rules, it is obligate: y on the part of the body in management and control of the institution to submit to the Commissioner of Endowments annually a statement showing the receipts and charges relating to the fasli year in question as also the expenditure etc., incurred, as set forth in Rule 4. If there is a failure in the matter of the submission of such statements, the commissioner may assess the income of such institution to the best of his judgment and the amount so assessed shall be deemed to be the income of the institution concerned within the meaning of Section 92(1) of the Act. A provision is also made in Rule 9 to bring to assessment if there is an escapement of it. The period within which such escapement should be brought to book is fixed as five years. Section 94, while stating that the assessment of such contribution, costs, charges and expenses payable under Sections 92 and 93 shall be assessed on and notified to the trustee of the institution concerned in the prescribed manner, also enumerates the modes by which such amounts so assessed could be recovered. If there is a failure on the part of the person concerned, or the institution concerned to pay the amount as assessed, such amount shall be recovered as if it were an arrear of land revenue by invoking the jurisdiction of the Collector of the district and by setting in motion the provisions of Sub -sections (3) to (8) of Section 94. It is common grounds that for Sri Vanamamalai Mutt such levies for contribution were made for faslis 1374, 1375 and 1376. The petitioner, on a demand made for the purpose for such contribution for fasli 1374, objected by this petition dated 10th February, 1966 to the quantum of assessment. This objection was considered by the Commissioner and was rejected as the assessment was arrived at on the basis of the income derived during fasli 1373. As regards faslis 1375 and 1376, it is also common ground that when demands were raised for the respective faslis the petitioner did not prefer any objection as is contemplated in the Act and the Rules as above. But on 26th November, 1968, the petitioner objected to the demand of contribution and audit fee for faslis 1374, 1375 and 1376 and sought for a re -hearing and for a further scrutiny of the Mutt's accounts. The petitioner was informed that in so far as his objection for faslis 1374 was concerned it has become final and in respect of the demands for faslis 1375 and 1376 no objection having been preferred within the time prescribed, the assessments for the relative faslis have become final. The petitioner's further case is that the costs included in the challenged demand is not recoverable in law, while the case of the Department is that it is recoverable under the provisions of law. The Department's further case is that the challenged demand was raised after giving credit to the amounts paid by the Mutt and it also expressed in writing that it is willing to revise the demand if any further payments have been made and that the Tahsildar, who is the officer through whom the collection of contribution, audit fee, costs, etc., could be made as if it were an arrear of land revenue, will be informed accordingly.

(2.) IN the counter -affidavit details are given as regards the quantum of demand made and the moneys paid by the Mutt, as also the details of expenditure incurred by the Department towards costs in Appeal No. 439 of 1961 on the file of this Court, toward which also recovery proceedings have been initiated. In a supplemental Counter -affidavit factually the Department justifies the percentage of the levy as prescribed under the Rules and would say that such contributions from religious institutions which were made from the inception and constitution of the Hindu Religious Endowments Boards in the year 1926 are not so disproportionate to the value of the services rendered by the department to the religious institutions as a whole. Therefore, the reasonableness of the fee so collected is also justified.

(3.) THE learned Government Pleader, on the other hand, placed considerable reliance upon the decisions of the Supreme Court in H.H. Sudhindra Thirtha Swamiar v. Commissioner of Hindu Religious and Charitable Endowments, Mysore : AIR 1963 SC 966 , Commissioner of Hindu Religious and Charitable Endowments, Mysore v. U. Krishna Rao : [1970] 2 SCR 917 and The Delhi Cloth and General Mills Company Ltd. v. The Chief Commissioner, Delhi : [1970] 2 SCR 348 besides referring to the Division Bench decision of our Court in Shri H.H. Sudhindra Thirtha Swamiar v. Commissioner of Hindu Religious and Charitable Endowments, Madras : AIR 1956 Mad 491 and says that the contribution claimed by the statutory authorities in the instant case is a fee notwithstanding the fact that there is an element of compulsion in it. Regarding the submission that there is a conspicuous surplus in the fund it is said that with reference to statistics it is seen that over 46 years only a surplus of about 65 lakhs odd is available, meaning thereby that on the average there was only a surplus of about 11/2 lakhs per year. If once it is established that a major portion of the contribution collected is utilised for services rendered and towards audit fees, the observations of the Supreme Court in The Delhi Cloth and General Mills Company Ltd. v. The Chief Commissioner, Delhi : [1970] 2 SCR 348 , would govern if it has a nexus to the object for which the collection is made. On the question whether the entitlement of the Department to collect costs is violative of the common law of the country, it is said that in the instant case costs have been incurred by the Department when it initiated proceedings for framing a scheme for the Mutt in question, which is certainly a proceeding which was intended for the benefit of the institution. In that sense Section 93 of the Act which enables the Department to collect such costs is not in any way in conflict with any of the relevant provisions in the Code of Civil Procedure. Lastly it is said that the petitioner was given adequate opportunity to make his representations and he did not avail himself of the same. He cannot seek for such an opportunity once again at this stage. The rules framed are mandatory and the petitioner cannot have a grievance if he has not availed of the real purport of such rules by objecting to the demand in time.