H. H. SHRI SWAMIJI OF SHRI ADMAR MUTI, ETC. versus THE COMMISSIONER, HINDU RELIGIOUS & CHARITABLE ENDOWMENTS DEPARTMENT & ORS

H. H. SHRI SWAMIJI OF SHRI ADMAR MUTI, ETC.

THE COMMISSIONER, HINDU RELIGIOUS & CHARITABLE ENDOWMENTS DEPARTMENT & ORS.

August 27, 1979

[Y. v. CHANDRACHUD, C.J., v. R. KRISHNA IYER, N. L. UNTWALTA, P. N. SHINGHAL AND A. D. KosHAL, JJ.]

States Reorganisation Act, 1956-A district transferred from one State to another-Continued application of the law applicable in the former State even after transfer-Validity of.

Section 109-Commissioner of Religious Endowments-A body corpora1e-Co:nnlissioner, if could exercise powers under the Act creating hinl as body corporate if no directions issued by the Central Government.

Fees and Tax-Nature of.

The re.ligious Mutts, of which the (appellants were Mathadhipatis, \Vere situated in the District of South Kanara which formerly was in the State of Madras. Section 76(1) of the Madras Hindu Religious and Charitabie En-dowments Act, 1951, the law applicable to the Mutts, provides tb:it in respect of services rendered by the Government and their officers and for defraying the expenses incurred on account of such services, every religious institution shall, from the income derived by it, pay to the Commissioner annually such contribution not exceeding 5% of its income as may be prescribed. Conse-quent upon the reorganisation of States in 1956 the District of South Kanara was transferred to the State of Mysore. By reason of the provisions of the States Reorganisation Act the Madras Act of 1951 continued to apply to the Mutts in the district even after their transfer to the State of My-sore. The Government ot Mysore issued notification authorising the Commissioner for Settlement and Charitable Endowments for ~Iysore to exercise the functions of the Commissioner under the Madras Act.

In A.pril, 1964 when the Commissioner of Hindu Religious and Charitable Endowments, Mysore issued notice to the appelJants demanding payment of certain contributions for the years 1957 to 1960 the appellants denied their liability to pay the amounts on the ground that (1) the Commissioner had no power to demand payment of contributions for the period subsequent to November, 1956 (when the District was transferred from the former State of 1\{adras to the State of Mysore); (2) that the demands were excessive and bore no relationship with the services rendered by the department and (3) that the expenditure incurred on the maintenance of staff and officers of the Comn1issioner's office could not wholly or in part be recovered from the appellants by way of contributions under s.76(1) of the Madras Act of !951.

All the contentions v:ere rejected by the Commissioner. The appellants thereupon filed writ petitions in the High Court impugning the C:ommi'isioner's crders. The High Court dismissed the writ petitions.

On appeal to this Court it was contended on behalf of the appellants that (1) the notification issued by the Mysore Government authorising: the Com-rnitsioner to exercise the functions of the Commissioner under the Madras Act was invalid because the Commissioner being Corporation Sole the only authority competent to issue notification in this behalf under s.109( I) of the States Reorganisation Act 1956 was the Central Government; (2) that the demands made by the Commissioner for payment of fees were illegal because cc.nsidering the services rendered to them they were excessive; (3) that the application of the Madras A.Ct to one district only offends against the gua-rantee of equality contained in Art. 14 because the Mutts. were required to pay fees '\Vhich similar institutions situated in other areas of the State were not required to pay and ( 4) th~t though the i:-ihir.l application of the Madras Act of 1951 to the District was not violative, its continued application offends against the guarantee of equality.

Dismis5ing the appeals,

HELD: I. The provisions of s.109(1) of the States Reorganisation Act do not support the argument that the Commissioner being Corporation Sole the on1y ~uthority competent to isiiiue the notification under s. 122 was the Central Govern1nent. Though the body corporate hai to functioa within the scope of and in accordance with the directions iiiued by the Central Government from time to time, its power to function under the parent Act is not condi-tional on the issuance of directions by the Central Government. lf directions are issued by the Central Government they have to be complied with by it. If on the other hand no directions are issued the powers and functions of the authority remain unimpaired and can neverthele11s be exercised as contemplated by the Act which creates the body corporate. [375C-D]

2.(a) Information on matters like the date of constitution of the Religious Endown1ent Fund, annual salary budget of the Commissioner's establishment at different places and the total number of institutions to which services Were" rendered sought by the appellants would be within the knowledge of the re-spondents and could have been supplied. For the purposes of finding whether there was correlation.ship between the services rendered to the fee payers and the fees charged it is necessary to know the cost incurred for organisbg and rendering the services. But mattera involving consideration of such corre-Iationship are not required to be proved by mathematical formula. What has to be seen is whether there is fair correipondence between the fee charged and the cost of services rendered to the fee·p11.yers as class. vivisection of the ;11nounts spent by the Commissionet'i establishment would have been speculative. It cannot be sai~ that substantial prejudice had been caused to the appellants by reason of the non-•upply of the information sought by them. [376 F-HJ

(b) It is well-established that tax is levied as part of common burden while fee is for special benefit or privilege. Public interest is at the basis of all impositions; but in fee it is some special benefit which the individual receives \vhich is the basis of imposition. fee beine levy iI consideration of rendering service to particu1a.r type, correlation between the expenditure and the levy must exist but levy will not be regarded as tax merely be-cause of the absence of uniformity in its incidence or be1eause of compulsion

in the co1Jection thereof or because some of the contributories did not obtain the same degree of service as others may. [377F-HJ

In the instant case there were some institutions whose annual income was over Rs. 200 and large number whose annuM income was le-ss than Rs. 200. The smaller institutions require and receive services from the department as much as the bigger class and the amounts collected by way of fees were just enough to balance the bulk of the expenditure incurred for financing the con-duct of ttffairs of the department which is charged with the duty and obliga· tion of rendering services to the institutions directly and to the pub1ic which patronises or visits them indirectly. [378G-H]

Tlze Commissioner, Hindu Religious Endowment, Madras v. Sri Laksh-mindra Thirtha Swamiar of Sri Shirur Mutt. [1954] SCR, 1005, H. H. Sudlzundra Thirtha Swami•r v. Commissioner for Hindu Religious & Charitable Endowments, Mysore. [1963] Suppl. 2 SCR. 302, Kewal Kris/um Puri and Anr. etc. v. State of Punjab and ors. etc. [1979] 3 SCR 1217, Hingir Ra1npur Coal Co. Ltd. & Ors. v. State of Orissa and Ors. [1961] 2 SCR 537, Indian Mita atid AficaniJe lndustriL·s Ltd. v. State of Bihar & ors. [1971] Suppl. SCR. 319, Secre-tary, Governrnent of Madras, Home Departn1ent and Anr. v. Ze11itl1 Lamp & Electrical Ltd. [19731 2 SCR 973 referred to.(c) In the absence of any acceptable evidence showing that the departme;t had built up ltlrge aCcumulations or reserves out of the fees collected from the various institutions and considering that services were required to be rendered to large class of institutions consisting of major and minor insti· tutions it cannot be said that there was no approximation or correspondence between the fees levied on the appellants and the services rendered to the class to which they belonged. [379C-D] 3. The Madras Act of 1951 in its application to the district of South Kanara (now in the State of Karnataka) does not infringe Art. 14 of the Constitution. By long line of decisions this Court has laid down that dissimilar treatment does ,not necess.ttrily offend against the guarantee of equality contained in Art. 14 so long as there is valid basis for classifica· tion and the classification bears neXU! with the object of the impugned provisions. In matter1 arising out of reorganisation of States, continued application of laws of State to territories which were within that State but which became part of another State, is not discriminatory since classification rests on geogte.phical considerations founded on historical reasons.

Bhaiyalal Shukla v. State of Madhya Pradesh [1962] Supp. 2 SCR 257, Pandit Banarsi Das Bhanot v. State of M.I'. [1959] S.CR 427, Anant Prasad Lakshminivas Ganeriw•l v. State of A.ndhra Pradesh and other [1963] Suppl. I SCR 844, The State of Madhya Pradesh v. Bhopal Sugar Industries Ltd. [1964] 6 SCR 846, Vishwesha Thirtha Swamiar & Ors. v. State of Mysore & Anr. [1972] 1 SCR 137 referred to.

State of Rajasthan v. Rao Manohar Singhji [1954] SCR 996 and Jia Lal v. The Delhi Administration [1963] 2 SCR 364 distinguished.

4. Section 119 of the States Reorganisation Act, 1956 was intended to serve ·a temporary purpose. But Acts, Rules and Regulations whose consti-tutional validity is upheld and c.tin be upheld only on the ground that no violation per se of Art. 14 is involved in the application cf different laws

to different components of State, if the area to which unequal laws are applied has become part of the State as result of the States· Reorganisa-tion, cannot continue to apply to such area indefinitely. An indefinite ex-tension and application ~f unequal laws for all time to come would militate against their true character as temporary measures taken in order to serve temporary purpose. The decision to withdraw application of unequal laws to equals cannot be delayed unreasonably because the relevance of historical reasons which justify the application of unequal laws is bound to wear out with the passage of time. But it cannot, however, be said that the continued application of the Act to the District became violative of Art. 14 as imme-diately as during the period under consideration, which was just five or six years after the paSsing of the States Reorgtanisation Act. Nor bas the conti-nued application of that Act until now is shown to be violative of Art. 14.

[387E-G]

Narottam Kishore Dev Varma and Ors. v. Union of India and A.nr. (1964] 7 SCR 55 referred to.

Shingbal J. (concurring in the final decision).

I. In the absence of neces9ary pleadings by the appellants it was not necessary to consider whether the continued application Of the Madras Act to the district was violative of Art. 14 of the Constitution. It cannot also be said that inequality is writ large on the face of the impugned statute in its application to the district tind that it is perilously near the periphery of unconstitutionality merely because of the lapse of..-:Z.3 years. [395A]

2. Pleadings or statement of material facts are of vital importance because absence of all the necessary facts in petition for the redress of grievance denies an opportunity for the opposite party to formulate its case. The parties would not know the points at issue and therefore the controversy would be confined to any point or points. If petition filed under Art. 226 or Art. 32 alleging infringement of Art 14 is singularly deficient in furnish· ing particulars justifying the allegation, but makes out only mere plea of differential treatment, that, by itself, would not be sufficient to enable the Court to examine the validity of the petitioner's claim. [389G·H; 392H]

In the instant case the iole ground on which the appellants rested their plea of discrin1ination was the continued application of the provisions of the Act to the district eight or nine yeari after the reorganisation of States and that failure to "unify" the legislation on the subject of Hindu Religious and Charitable Endowments was wholly discriminatory. That is quite untenable in view of the decision in Bhopal Sugar Industri~s case. The other plea of mixing of Mutts with temples is not quite intelligible. It had not even been referred by the counsel during the ar~ments. The grounds which had been taken were, therefore, untenable. [394A·C]

3. It is impossible to lay down any definite time limit within which the State has to make the necessary adjustment for the purpose of effectuating the equality clause of the Constitution. While differential treatment could not be permitted to assume permanency without rational basis to support it as year! go by mere plea of differentilal treatment is by itself not sufficient to nttract the application of Art. 14.

State of Madhya Pradesh v. Bhopal Sugar Industries Ltd. [1964] 6 SCR 846 f~llowed.

R. P. Bhat and Girish Chandra for RR 4 in C.A. 1445-1448/68.

The Judgment of Y. V. Chandrachud, C.J., V. R. Krishna, Iyer, N. L. Untwalia and A. D. Koshal, JJ. was delivered by Chandcachud, C.J. P. N. Shinghal, J. gave separate Opinion.

CHANDRACHUD, C.J. These seven appeals by certificate are directed against the judgment dated Angus! 25, 1967 given by the High Court of Mysore in Writ Petitions Nos. 1649, 1650 and 1651 of 1964, Writ Petitions Nos. 1575, 1576 and 1579' of 1965 and Writ Petitions No. 1439 of 1966. These Writ Petitions were filed by the appellants under article 226 of the Constitution praying that the demand notices issued by the Commissioner for .Hindu Religious and Charitable Endowments of Mysore be quashed and for writ of mandamus restraining the respondents from taking any action in pursuance thereof.

Until November 1, 1956, when the States Reorganisation Act, 37 of 1956, came into force the District of South Kanara was part of the former State of Madras. As result of the States Reorganisation Act that District became part of the State of Mysore, now the State vf Kamataka.

The Madras Legislature passed an Act called the Madras Hindu Religious and Charitable Endowments Act, 19 of 1951 ("the Madras Act of 1951"), to provide for the better administration and govern-ance of Hindu Religious and Charitable Institntions and Endowments

in the State of Madras Section 76(1) of the Act, as it stood original-ly, provided that in respect of the services rendered by the Govern-ment and their officers, every religious institution shall, from the income derived by it. pay to the Government annually such con-tribution not exceeding 5 per centum of its income as may be prescribed. This proviiion and some other provisions of the Act were · challenged in the Madras Hi gb Court on behalf of the Shirur Mutt and others. The challenge was up-held by the High Court and the appeal filed therefrom by the Commissioner, Hindu Religious Endowments, Madras, was dismissed by this Court in The Comnlissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri S!zirur Mutt.(I) Section 76(1) was held void by this Court on the ground that the provision relating to the payment of annual contribution contained in it was in the nature of tax and not fee and therefore it was beyond the legislative competence of the Madras State Legislature to enact the provision. The Madras Legislature amended section 76(1) of the Act so as to provide that in respect of the services rendered by the Govern-ment and their officers, "and for defraying the expenses incurred on account of such services", every religious institution shall,, from the income derived by it, pay to the Commissioner annually such contribu-tion not exceeding five per centum of its income as may be prescribed. The validity of the amended section, was upheld by this Court in H. H. Sudhundra Thirtha Swamiar v. Commissioner for Hindu Religious & Charitable Endowments, Mysore.([2])

After the formation of the new State of Mysore under the States Reorganisation Act, 1956, laws which were in force in the areas which were formerly comprised within the Madras State, continued to apply to those areas notwithstanding the fact that they became part of the new State of Mysore. Section 199 of the Act of 1956 provides that the provisions of Part II ('Territorial Changes and Formation of new States') shall not be deemed to have effected any change in the terri-tories to which any law in force immediately before the appointed day e.xtends or applies, and territorial references in any such law to an existing State shall, until otherwise provided by competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day. It is by reason of this section that the Madras Act of 195! continued to apply to the South Kanara District which prior to November !, 1956, was part of

(1) [1954] S.C.R. 1005.

(2) [1963] Suppl. 2 S.C.R. 30~.

the Madras State but which became after that date part of the Mysore State.

We will refer to the facts of Civil Appeal 1445 of 1968 which arises out of Writ Petition 1575 of 1965. The facts of the other appeals are in material respect similar. The appellant who is the Mathadhipati of Shri Admar Mutt in the South Kanara District received notice dated 8 April 24, 1964 from the Commissioner, Hindu Religious and Charita-ble Endowments, Mysore,, demanding payment of contribntion for Fasli years 1367 to 1370 which correspond to calendar years 1957 to 1960. By the notice, the Commissioner demanded sum of Rs.12, 724.60 for the Fasli year 1367, Rs. 12,274.60 for the Fasli year 1368, <: Rs. 11,270.70 for the Fas!i year 1369 and Rs. 12,169.20 for the Fasli year 13 70. The appellant disputed his liability to pay the contribution on the ground that the Commissioner was not entitled to make any demand for the period subsequent to November 1956, that even assuming that he had the lawful authority to make the demands, tht'l amount demanded was excessive bearing no relationship with the serviceg rendered by the Department and that the expenditure which was incurred on the maintenance of the office and staff of the Com-missioner and the Deputy Commissioner could not wholly or in part be recovered from the appellant by way of contribution under sec-tion 7 6 ( 1) of the Madras Act of 19 51.

Since the Commissioner did not accept the appellants' contention, the appellants filed the Writ Petitions in the Mysore High Court asking that the demand notices be quashed as illegal. Those Writ Petitions were dismi>>ed by the High Court but it has given to the appellants certificatei to appeal to this Court under articles 133(1)(a) and (c) of the Constitution.

Simultaneously with the States Reorganisation Act coming into force, the Government of Mysore issued notification under section 122 of that Act ~uthorising the Commissioner for Settlements and Charit-able Endowments for Mysore to exercise the functions of the Commis-sioner under the Madras Act of 1951. It is contended on behalf of the appellants that the aforesaid notification lacks law's authority because, the Commisiioner being Corpcration Sole, the only authority which is competent to issue the notification under section 122 is the Central Gov-ernment, by reason of the provisions contained in section 109 ( i) of the S.R. Act. It is true that by section 80 of the Madras Act of 1951, the Commisgioner is constituted Corporation Sole with perpetual succession. But the provisions of section 109 (1) of the S. R. Act on which the argument rests do not support the argument. The relevant part of section 109 (!) provides that where any body corporate has been

constituted under State Act for an existing State, any part of which is by virtue of the1 provisions of Part II of the S.R., Act transferred to any other State, then notwithstanding such transfer, the body corporate shall, as from the appointed day continue to function and operate in those areas in respect of which it was functioning and operating immediatdy before that day, "subject to such directions as may from time to time be issued by the Central Government". Under this provision, it is com· pe!ent to the Central Government to issue directions to body corporate and by reason of sub-section 2 of section' 109, any direction issued by the Central Government under sub-section ( 1) shall include direction that any law by which the said body corporate is governed shall have effect subject to such exceptions and modifications as may be specified in the directions. In other words, the body corporate has to function within the scope of and in accordance with the directions issued by the Central Government from time to time. But the power of the body corporate to function under the parent Act is not conditional on the issuance of directions by the Central Government. If directions are issued by the Central Government, they have to be complied with by the body corporate. If no directions are issued, the powers and functions of the authority remain unimpaired 'and can nevertheless be exercised as contemplated by the Act which creates the body corporate.

The second contention made on behalf of the appellants is that the demands made by the Commissioner for the payment of fees is illegal because, considering the services rendered to them, the demands are clearly excessive. In other words the argument is that there is no quid pro quo between the services rendered by the State to the appellants and the fees which the Commissioner has called upon them to pay.

The affidavit of Shri Annaji Rao in support of Writ Petition 1575 of 1965 filed by the Admar Mutt contains the following averments directed to establishing the absence of quid pro quo. It is stated in paragraphs 14 to 18 of the said affidavit that,

( 1) in the district of South Kanara, there are about 31 O major religious institutions which arc dealt with by the establishment of the Commissioner. Out of theie, only 30 have an annual income exceeding R:s.20,000/-. Out of these 30, 17 are Mutts and out of these 17 9 are situated in Udipi, South Kanara. '

(:!) the 30 major institutions are dealt with by the Deputy Commissioner, South Kanara, Mangalore, under the powers delegated to him by the Commissioner. The remaining 280 Institutions are dealt with by the

Assistant Commissioner who has separate estab-lishment of his own;

(3) the Deputy Commissioner, who deals with the 30 major institutions, utilises the services of two Clerks and one Stenographer in his office at Mangalore, the expenditure on whose salary cannot exceed Rs.6,000/-per annum approximately. The only work that is being done by the Deputy Commissioner in respect of the Mutts is to receive the dr!J.ft Annual Budgets submitted by them and to make his remarks thereon. service of this nature cannot cost more than Rs.200/- per annum;

( 4) for the petty services which are being renderd to the appellants, the five Udipi Mutts have been called up-on to pay sum of Rs. 30,000/- for the four years in question. sum of Rs. 25,000/- is demanded from the other four Mutts for the same period. Apart from these 9 Mutts, there are 8 other Mutts and 13 other major institutions from whom sum of Rs. 50,000/- has been demanded. These de-mands are grossly uncorrelated to the cost of services rendered to the appellants.

On December 20, 1966 an ap!ication was filed in the High Court on behalf of the appellants asking that the respondents be directed to furnish the necessary particulars regarding, inter alia, (i) the date when tke Religious Endowments Fund was constituted ; (ii) the de--mands made in respect of the majoc institutions in South Kanara; (iii) the salaries payable to the establishments of the Commissioner and the Deputy Commissioner; (iv) the functions discharged by the Deputy Commissioner in respect' of Mutts; (v) the expenditure in-curred by the Commissioner's office in Mangalore and in Bangalore and (vi) the total number of institutions controlled by the Depart-ment in the four areas which were formerly parts of other States but which had become part of the State of Mysore under the States ReorganisatiQn Act.

The information sought by the appellants could have been supplied by the respondents because matters lil::e the date of constitution of the Fund, the annual salary budget of the Commissioner's establish-ment at different places and the total number of institutions to which services were rendered would be within their speci~l knowledge. For the purpose of finding whether there is correlationship between the services rendered to the fee payers and the fees charged to them, it

is necessary to know the cost incurred for organising and rendering the services. But matters involving consideration of such correla· tionship are not required to be proved by mathematical formula. What has to be seen is whether there is fair correspondence between the fee charged and the cost of services rendered to the fee payers as class. The further and better particulars asked for by the ap-pellants under Order VI, rule 5 of the Civil Procedure Code, would have driven the court, had the particulars been supplied, to labo-rious and fruitless inquiry into minute details of the Commissioner's -departmental budget. vivisection of the amounts spent by the Commissioner's establishment at different places for various purposes cand the ad-hoc allocation by the court of different amounts to different heads would at best have been speculative. It would have been no more possible for the High Court if the information were before it, than it would be possible for us if the information were before us, to find out what part of the expenses incurred by the Commissioner's oestablishment at various places and what part of the salary of his staff at those places should be allocated to the functions discharged by the establishment in connection with the services rendered to the appellants. We do not therefore think that any substantial prejudice has been caused to the appellants by reason of the non-supply of the information sought by them.

The necessity for establishing quid pro quo between the fee and the cost of services rendered is matter which is no longer open to doubt or debate. Several decisions of this Court have considered that question, beginning perhaps with the decision in the Shirur Mutt case (supra) and ending (hopefully) with the recent judgment delivered by Constitution Bench of this Court in large group of Market Fee cases from Punjab and Haryana in Kewal Krishan Puri and Anr. etc. v. State of Punjab and Ors.(') etc.

In the Shirur Mutt case (supra) in which the levy under the un-.imended section 76(1) of the Madras Act of 1951 was held to be tax Mukherjea, J ., who delivered the judgment of the Court, said that the distinction between tax and fee lies primarily in the fact that tax is levied as parr of common burden while fee is for special benefit or privilege. Public interest, according to the Court, is at the basis of all impositions but in fee it is some special benefit which the individual receives. After this decision, section 76 was ·amended by the Madras Legislature and the amended section was upheld by this Court in Sudhundra Thirtha Swamiar case (supra). It was held in that case that fee does not cease to be of that character ·merely because there is an element of compulsion or coersiveness

present in it, nor is it postulate of fee that it must have direct relation to the actual service~ rendered by the authority to the indi-vidual who obtains the benefit of the service. Shah, J., who spoke for the Court, emphasised that "if with view to providing specific service, levy is imposed by law and expenses for maintaining the ser-vice are met out of the amounts collected, there being reasonable relation between the levy and the expenses incurred for rendering the service, the levy would be in the nature of fee and not in the nature of tax". In other words, "a fee being levy in consideration of rendering service of particular type, correlation between the expen-diture by the Government and the levy must undoubtedly exist, but levy will not be regarded as tax merely because of the absence of uniformity in its incidence, or because of compulsion in the collection thereof, nor because some of the contributories do not obtain the same degree of service as others may". In Hingir Rampur Coal Co. Ltd. & Ors. v. State of Orissa and Ors.,{'') the Court while upholding the levy of fee said through Gajendragadkar, J. that the scheme of the Act showed that the cess was levied against the class of persons owning mines in the notified area and it was levied to enable the State Government to render specific services to that class by developing the notified mineral area. In Indian Mica & Micanite Industries Ltd. v. Str:, of Bihar & Ors.,([2 ]) Hedge, J. who spoke for the Court said that before any-levy can be upheld as fee, it must be shown that the levy has "reasonable correlationship" with the services rendered by the Govermnent to the fee payer but that it will be impossible to expect an exact correlationship. According to the learned Judge, the correlationsbip expected is one of general character and not as of arithmetical exactitude. In Secretary, Government of Madras, Home Department and Anr. v. Zenith Lamp & Electrical Ltd. ( [3]) where the question was as regards the validity of court fees, Sikri, C.J. speaking for the Court, pointed out that there must be "broad correlationship" between the fees collected and the cost of administration of civil justice and that each case has t1> be judged from reasonable and practical point of view for finding out the element of quid pro quo. All of these decisions have been dis-cussed and the principles laid down therein reaffirmed by this Court in the Punjab and Haryana Market Fee cases (supra) in which the judg-ment was delivered by one of us, namely, Untwalia, J.It is clear from the various facts mentioned by the respondents in their affidavit in the High Court that under the supervision and control of the Commissioner, there are as many as 324 institutions

(I) [1961] 2 S.C.R. 537.

(2) [1971] Suppl. S.C.R. 319.

(3) [1973] 2 S.C.R. 973.

with an income of over Rs. 200/- per annnm and 1796 institutions with an income of less than Rs. 200 /- per annum. The latter class of smaller institutions requires and receives services from the Department as much as the former class of bigger institutions does. The amounts collected by the levy of fees on these institutions was just enough to balance the bulk of the expenditure incurred, at Ie.ast during the period under review, for financing the conduct of affairs of Department which is charged with the duty and obligation of rendering services to the institutions directly and to the public which patronis'es or visits them indirectly.

The rules framed under the Madras Act of 1951 prescribed fee varying from 3 to 5 per cent of the annual income of the institutions. The figures furnished by the Commissioner in the third statement dated August 10, 1967 which was filed in pursuance of the directive issued by the High Court show that the total demand made cin all the religious institutions for fees during the years 1957 to J 964 amounted to Rs. 8,80,389/- while the allocable expense for the services was Rs. 7,54,160/-. It is not without significance that though the total demand made on the Mutts during the said period was in the sum of Rs. 3,64,59'1/-, the contribution received from the Mutts was Rs. 24,526/- only. In the absence of any acceptable evidence show-ing that the Department had built up large accumulations or reserves out of the fees collected from the various institutions and considering that services are required to be rendered to large class of institutions consisting of major and minor institutions, we do not think that we can positively come to the conclusion that there is no approximation or correspondence between the fees levied on the appellants .and the services renderd to the class to which they belong. The second con-tention therefore fails.

The third and last contention made by the learned counsel for the appellants is that the application of the Madras Act of 1951 to one district only of the State of Karnataka offends against the guaran-tee of equality contained in article 14 of the Constitution which pro-vides that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. It is urged that as result of the application of the Madras Act of 1951 to the Mutts and temples in the South Kanara District, they are required to pay fees under the Act which similar institutions situated in other areas of Karnataka do not have to pay. The burden thus imposed on the appellants is said to be an act of hostile discrimi-nation and therefore unconstitutional.

In support of this argument counsel has drawn our attention to certain decisions of this Cou;t which we will presently examine but

before doing ilO, we must recall the background in which the Madras Act of 1951 became applicable to the South Kanara District of the State of Mysore, now the State of Karnataka. To recapitulate briefly, the South Kanara District which was formerly part of the State of Madras, became part of the State of Mysore as result of the Reorganiiation of States on November 1, 1956. It is by reason of the provisions of the States Reorganisation Act, 1956 that the Madras Act of 1951 continues to apply to the South Kanara District notwith-standing the fact that it is no longer part of the State of Madras. Sec-tion 119 of the S. R. Act provides to that effect.In State of Rajasthan v. Rao Manohar Singhji(') three Ordinances, No. XX.VII of 1948 and Nos. X and XV of 1949 were challenged on the ground, inter alia, that after final formation of the State of Rajasthan in May, 1949 the Ordinances remained in force in part of the State with the result that while Jagirs in part of the State were managed by the State, the Jagirs in the rest of the State were left untouched and remained with the Jagirdars. Section 8-A, which was inserted in Ordinance XXVII of 1948 by section 4 of Ordi-nance X of 1949 and was amended by section 3 of Ordinance XV of 1949, provided that the revenue including taxes, cesses and other revenue from forests which was until then collected by J agirdars shall in future be collected by and paid to the Government. After deduct-ing the collection charges and other expenses, the Government was to pay back the revenue to the Jagirdars concerned.

This ca•e is distinguishable for the simple reason that the decision turned on the application of article 13 of the Constitution and the case did not involve coruiderations arising out of the provisions of the States Reorganisation Act. The respondent therein was Jagir-dar in the former State of Mewar which was integrated in April 1948 to form what was known as the former United State of Rajasthan. In April ~nd May 1949 that State was amalgamated with the former States of Bikaner, Jaipur, Jaisalmer and Jodhpur and the former Union of Matsya to form the State of Rajasthan. 'The three Ordi-nances in question were issued by the former United State of Rajas-than, as result of which the management of the Jagirs in the State, including those in Mewar, was assumed by the State. After the final formation of the State of Rajasthan in May 1949, the Ordinances re-mained in force in part of the State on\y with the result that the · Jagirdars of only part of the State could not coJlect their rents while Jagirdars in other areas like Bikaner, Jaipur, Jaisalmer, Jodhpur, and the Matsya Union were under no such disability, since there was

(I) L!954] S.C.R. 996.

H. H. SWAMIJI v. COMMISSIONER (Chandrachud, C.J.)

no such law in those areas. But when the integration of April and May, 1949. took place, the discrimination exhibited itsel~ not by virtue of anything inherent in the impugned Ordinances but by reason of the fact that Jagirdars of one part of the State were subjected to disability while those in the other parts remained wholly unaffected. As observed by this Court in its judgment, this was an obvious case of discrimination not supported on the ground that it was based upon reasonable classification. The discrimination was not open to any exception until the Constitution came into force on January 26, 1950 when by reason of Article 13, all laws in force in the territory of India immediately before the commencement of the Constitution in so far as they were inconsistent with the provisions of Part III became void to the extent of the inconsistency. The High Court as well as this Court found that Section 8-A was unconstitutional be-cause there was no real and substantial distinction why the J agirdars of particular area should continue to be treated with inequality as compared with the Jagirdars in another area of the State. There was nothing to show that there was any peculiarity or any special feature in the Jagirs of the former United State of Rajasthan, like Mewar, to justify differentiation from the J agirs comprised in the States which were subsequently integrated into the State of Rajasthan in 1949. In other words, after the formation of the new State there• was no justification for taking away the powers of the Jagirdars of disfavoured area like Mewar and to leave them intact in the rest of the areas like Bikaner, Jaipur and Jodhpur.In Jai Lal v. The Delhi Administration,(') on which also the ap-pellants rely, there were two appeals before this Court arising out of convictions under section 19(f) of the Indian Arms Act, 1878. Section 29 of that Act provided that for prosecution for an offence nnder section 19 ( f) of the Act committed in the territories north of the Jumna and Ganga, no sanction was required but sanction was required for the prosecution if the offence was committed in other areas. The court examined the legislative history of section 29 and noticed that the section made distinction between the areas' to which the Arms and Ammunition Act of 1960 applied and the other areas. The former included territories which had been disarmed under orders of the Governor-Oeneral and those in which general search had been ordered, which comprised the territories north of the Jumna and: Ganga. This differentiation came to be made as result of the political situation which obtained in India following the "re-bellion" of 1857, its g~nesis being that the largest opposition to the British Government came from Taluqdars· to the north of the Jumna

and Ganga. Bearing in mind these historical reasons, Venkatarama Aiyar, J., speaking for the Court, observed that more than century had elapsed since 1857 and the conditions had so radically changed that it was impossible any longer to sustain any distinction· between ~~ territori_...s north of the J umna and Ganga and the other territories on any ground pertinent to.the object of the law in question. Section 29 was accordingly held to be repugnant to article 14. This de-cision too is distinguishable for tw_o reasons. Firstly, more than century bad elapsed since the occurrence of events which Jed (o differential treatment being accorded to the area north of J umna and Ganga; and it is well-known fact of history that political conditions had changed vastly in India duruig that period. Secondly, as in Rao l\fanohar. Singhji, (supra) the discrimination was violative of article 14 of the Constitution because there W:!.S no longer any nexus between the geographical cfassification made by section 29 of the Indian Arms Act, 1878 and the object of that provfilon. After the enactment of the Con•titution, article 13 rendered section 29 un-constitutional.

There are certain other deci>iorni to which the o.ppellants' counsel himself drew our attention fairly and they clinch the issue. We will now refer to them. Jn Dlraiyalal Shukla v. State of Madhya Pradesh,(') the appellant was engaged in the busine» of construction as contractor under the P.W.D. in the Rewa CTrcle of the former State of Vindhya Pradesh which had. become pert of the State of Madhya Pradesh. He challenged the levy of Sale1: Tu on building materials supplied. by him during the yem 1953-59. After the re-organisation of State•, Madhya Prade•h had a• many u four Sales Tax Acts. One of the argument~ adv.need on behalf of the appellan.t was that person belonging to the aru. . of the former Staie of Madhya. Prade•h was not liablo to •ales tax on building materials ill works contract, under thq C. P. and Berar Sales Tax Act recau•e of the decision of this Court in Palfdit Banarsi Das Bhtmot v. Stat~ of Madhya Pradesh,(') but another person living in an o.rea forming part . of the former Stato of Vindhya Pradei;h wa• liable to •ale• tu under the same Act, as extended to Vindhya Prade.h. While rejecting the argument that article 14 was theceby contravened, this Court held that the laws in different portion~ of the new State of Madhya Prade.lt · . were enacted by diffecent legislatures, and under section 119· of the States Reorganisation Act,. all faws in force were to continue until re- . pealed· or altered by the appropriate Legislature. Tho Sal~ 'fax law in Vmdhya Pradesh having been validly enacted_, it ·carried its :

· '(I) [1962] Suppl. 2 s.c.R; 257.

validity with it under section 119 of the States Reorganisation Act, when it became, part of Matlhya Pradesh. Thereafter, obs'erved Hidayatullah, J. on behalf of the Court, the different laws which were in force in different parts of Madhya Pradesh could be sustained on the ground that the differentiation arose from historical reasons and "geographical clasiification based on historical reasons"' was valid. For the lait propooition, reliance was placed on two unreported deci-sions of the Court, dated November 2 and November 30, 1960.

In Anant Prasad Lakshminivas Ganeriwal v. State of Andhra Pradesh and Others,(") the appellant who claimed to be the sole hereditary truitee and mutawalli of temple in Hyderabad was served with notice by the Director of Endowments, Hyderabad, to have the temple registered nnder the Hyderabad Endowments Regulations, 1940. The Director of Endowments of Hyderabad also passed two orders directing that the supervision of the temple be taken over nuder r. 179 of the Endowments Rules and that the management of the temple do veit in the Director of Endowments, Hyderabad. The appel.Wlt filed Wri~ Petition in this Court challenging the validity of the Regulations and the Rules framed therennder as being repug-nant to articles 14 and 19 of the Constitution. His contention was that there were two Jaws in force in two parts of the State of Andhra Prade~h with [eopect to religious endowments and that these tv.o Jaws were different in many matters resulting in discrimination which wtas hit by article 14. The State of Andhra Pradesh, as it came into exiitence after the Stat~ Reorganiiati.on Act, 1956, consists of two areas one of which came to that State from the former Part State of Madras in 1953 and the other from the former Part State of Hyderabad in 1956. This Court observed, while repelling the challenge under article 14, that the two areas naturally had different laws and that, assimilation. of the laws which were in operation in the two pMts of the State and bringing them nnder one comm0n pattern was bound to take some time. It appears that the Court w•.s informed that the question of having one law for public trusts of religious or charitable nature was under the active consideration of the State Government, for which reason, the Court thought that it was not right to strike down all laws prevailing in the two parts of the State because of certain differences in them arising out of historical: reasons. The Court applied to the facts before it the ratio of Bhaiyalal Shukla "(supra) and distinguished the decision in Rao Manohar Singh;i (supra}.

In The State of Madhya Pradesh v. Blwpal Sugar Industries Ltd.,([2]) the respondent campany filed Writ Petition in August 1960

(!) [196'1] 6 S.C.R. 841i.

in the M. P. High Court praying that the State of Madhya Pradesh be restrained from enforcing the Bhopal State Agricnltural InCQllle-tax Act, 1953 on the gronnd that it contravened the company's right under article 14 of the Constitotion. By the States Reorganisation Act, 1956, the territory of the State of Bhopal became from November 1, 1956 part of the State of Madhya Pradesh. Though shortly there-B after, the Adaptation of Laws Order was issued to apply certain laws uniformly to, the entire State and though the Legislature,, under the Madhya Pr.adesh Extension of Laws Act, 1953 had made certain other alterations in the laws applicable to the State, the Bhopal State Agri-cultural Income-tax Act remained nnamended. Nor was its operation extended to the other regions of the State. The result was that Agri-cultural Income-fax was levied within part of the State of Madhya Pradesh, namely, in the territory of the former State of Bhopal but not in the rest of the territory of the State of Madhya Pradesh. Revers-ing the judgment of the High Court, this Court held, relying upon Bhaiyalal Shukla (supra) and other cases that where application of unequal Jaws is reasonably justified for historical reasons, geograc phicaJ. classification fonnded on such historical reasons is valid. While upholding the impugned statute in its application to part of the State, the Court observed that section 119 of the States Reorgani-sation Act was intended to serve temporary purpose, viz., to enable the new units to consider the special circumstances of the diverse units, before launching upon process of adaptation of Ja\Vs so as to make them reasonably uniform, keeping in view ihe special needs of the component regions and administrative efficiency. Therefore, differen-tial treatment arising out ·of the application of the Jaws so cootinued in different regions of the same reorganised State, did not i=ediately attract the clause of the Constitiition! prohibiting discrimination.

In Vishwesha Thirtha Swamiar & Ors. v. State of Mysore and Anr., (') the new State of Mysore enacted the Mysore Land Revenue (Surcharge) Act, 1961 and the Mysore Land Revenue (Surcharge) Amendment Act, 1962. These Acts were challenged on the ground, inter alia, that they were violative of ilrtic!e 14 since there was inequa-lity in taxation between lands situated in South Kanara District and the lands comprised in areas sitoated in the erstwhile State of Mysore. This challenge was repelled by this Court on the ground that the im-pugned Acts were in the nature of temporary measures, passed while resettlement and survey was being done in the entire State. This proceBS necessarily took long time and therefore it could not be said that the State had acted arbitrarily in imposing surcharge on land revenue which was being levied under the existing settlements and Acts. (1) (1972! 1 S;C.R. 137.

These decisions are authority for the validity of section 76 (1) of the Madras Act of 1951 in .its application to the South Kanara Dis-trict of the State of Mysore, now the State of Kamataka. This Court has said time and again that dissimilar treatment does not necessarily offend against the guarantee of equality contained in article 14 of the Constitution. The rider is that there has to be valid basis for classification and the classification must bear nexus with the object of the impugned provision. In matters arising out of reorganisation of States, continued application of laws of State to territories, which were within that State but which have become part of another State is not discriminatory since the classification rests on geographi0al con-siderations founded on historical reasons.In Bhopal Sugar Industries Ltd., (supra) Shah J., who spoke for the court, has traced the genesis of section 119 of the States Reorgani-sation Act to which attention may usefully be called :

"It is necessary to bear in mind that the various admi-nistrative units which existed in British India were the result of acquisition of territory by the East India Company from time to time. The merger of Indian States since 194 7 brought into the Dominion of India numerous Unions or States, based upon arrangements ad hoc, and the constitu-tional set up in 1950 did not attempt, on account of diverse reasons mainly political, to make any rational rearrange-ment of administrative units. Under the Constitution as originally promulgated there existed three categories of States, besides the centrally administered units of the Anda-man and Nicobar island. Part 'A' States were the former Governors' Provinces, with which were merged certain terri-tories of the former Indian States to make geographically homogeneous units : Part 'B' States represented groups formed out of 275 bigger Indian States by mutual ar.range-ment into Unions : Part 'C' States were the former Chief Commissioners' Provinces. These units were continued under the Constitution merely because they formerly exist-ed. Later an attempt was made under the States Reorga-nisation Act to rationa1ize the pattern of administration by reducing the four classes of units into two-States, and Union territories-and by making majority of the States homogeneous linguistic units. Bu~ in the States so re-organised were inco,rporated regions governed by distinct laws, and by the mere process of bringing into existence re-organised administrative . units, uniformity of laws could

not immediately be secured. Administrative reorganisa-tion evidently could not ,await adaptation of laws, so as to make them uniform, and immediate abolition of llhws which gave distinctive character to the regions brought into the new units was politically inexpedient even if theoretically possible. An attempt to secure uniformity of laws before reorganisation of the units would also have considerably re-tarded the process of reorganisation. With the object of effectuating swift transition, the States Reorganisation Act made blanket provision in section 119 continuing the operation of the laws in force in the territories in which they were previously in force notwithstanding the territorial re-organisation into different administrative units until the competent Legislature or authority amended, altered or modi-fied those laws . . . . . . . . . . . . . . . . . Continuance of the laws of the old region after the reorganisation by section 119 of the States Reorganisation Act was by ;tself not discrimi-natory even though it resulted in differential treatment of persons, objects and transactions in the new State, because it was intended to serve dual purpose-facilitating the early formation of homogeneou• units in the larger interest of the Union, and maintaining even while merging its politi-cal identity in the new unit, the distinctive character of each region, till uniformity of laws was secured in those branches in which it was expedient after full enquiry to do so. The laws of the regions merged in the new units had therefore to be continued on grounds of necessity and expediency."

Bearing in mind these considerations, we are of the view tha' the Madras Act of 1951, in ii!! application to the South Kanara Di•trict of Mysore, now Kamataka, does not infringe article 14 of the Constitution.

Bnt then, learned counsel tor the appellants argues that while following the judgments above referred to, we must not overlook the caveat contained in those judgments and the description therein of section 119 of the States Reorganisation Act as 'temporary mea-sure'. 1n this behalf, reliance is also placed by counsel on the de-cision in Narottam Kishore Dev Varma and Ors. vs. Union of India and finr.(') The petitioners therein applied for the consent of the Ce~tral Government under section 87B of the Code of Civil Procedure to sue the Maharaja of Tripura, Ruler of former Indian State which had merged with India. Consent having been refused, they iled Writ Petition in this Court challenging the validity of section 87B on

(I) [1964] 7 S.C.R. 55.

the ground that in granting exemption to Rulers of former Indian States from being sued except with the consent of the Central Govern-ment', the section contravened article 14 of the Constitution. The Court followed an earlier judgment and rer.lled the challenge but ·while doing so, Gajendragadkar, C.J., speaking for the Court, made an important observation inviting the Central Government to consider serionsly whether it was necessary to allow section 87B to operate prospecuvely for all time and whether !ran.actions subsequent to Janu-ary 26, !950 should also receive the protection of the section. The Court felt that, considered broadly in the light of the basie principle of equality before law, it was somewhat odd that section 87B should continue to operate for all time. "With the passage of time" observ-ed the learned Chief Justice, "the validity. of historical considerations on which section 87B is founded will wear out. and the continuance of the said section in the Code of Civil Procedure may later be open to serious ch.allenl(e".

The narrow que~tion that rc::main.s ior consideration now is whe ... ther, though the initial application of the Madras Act or 1951 to the South Kanma District was not violative all article H, its continued application offend• against the guarantee of equality. In this con-nection, matter oi primary importance to be borne in mind is that section 119 of the States.Reorganisation Act, 1956, was intended, as said in Bhaiyalal Shukla, (supra) to serve "temporary purpose", viz., to enable the new units to con.id<r lh• special circumstances of the diverse units, before launching upon process or ,adaptation of laws so as to make them reasonably uniform, having regard to the sp~cial needs of the various regions and the requirements of adminis-trative efficiency. Acts, Rules and Regulations whose constitutional validity is upheld and can be upheld only on the ground that no vio-lation per se of article 14 is involved in the application of different laws to different components of State, ii the area to which uneqtro.l laws are applied ha• become part of the State as " result of the States "reorganization, cannot continue to apply to such area indefini-tely. An indefinite extension and application of unequal laws for all time to come will militate against their true character as temporary measures taken in order to serve temporary purpose. · Thereby, the very foundation of their constitutionality shall have been destroy-ed, the foundation being that section 119 of the States Reorganization Act serves the significant purpose of giving reasonable time to the new units to consider the special circumstances obtaining in respect of divC"Tse units. The decision to withdraw the application of unequal laws to equals cannot be delayed unreosanably because the relevance

of historical reasons which justify the application of unequal laws is bound to wear out with the passage of time. In Broom's Legal Maxims (1939 Edition, Page 97) can be found oa useful principle, "Cessante Ratione Legis Cessat lpsa Lex,., that is to say, "Reason is the soul of the law, and when the reason of any particular raw ceases, so does the law itself". We do not however see any justification for holding that the conti-nued application of the Madras Act ol' 1951 to South Kanara Dis(rict became violative of article 14 as immediately as during the period under consideration, which was just five or six years after the passing of the States Reorganisation Act. Nor indeed are we disposed to hold that the continued application of that Act until now is shown by adequate data to be violative of article 14.

But that is how the matter stands to~day. Twenty three yeoars have gone by since the States Reorganisation Act was passed but 'unhappily, no serious effort has been made by the State Legislature to introduce any legislation-apart from two abortive attempts in 1963 and 1977-to remove the inequality between the temples .and Mutts situated in the South Kanara District and those situated in other areas of Karnataka. Inequlllity is so clearly writ large on the face of the impugned statute in its application to the District of South Kanara only, that it is perilously near the periphery of unconstitu-tionality. We have restrained ourselves from declaring the law as in-applicable to the District of South Kanara from to-day but we would like to make it clear that if the Karnataka Legislature does not act promptly and remove the inequality arising out of the application of the Madras Act of 19 51 to the District of South Kanara only, the Act will have to suffer serious and successful challenge in the not distant future. We do hope that the Government of Karnataka will act promptly and move an appropriate ~gislation; say, within year or so. comprehensive legislation which will apply to all temples and Mutts in Karnataka, which are equally situated in the context of the levy of fee, may perhaps afford satisfactory solution to the prob-lem. This, however, is tentative view-point because we have not investigated whether the Madras Act of 1951, particularly sec-tion 7 6 ( 1) thereof, is piece of hostile legislation of the kind that would involve the violation of article 14. Facts in regard thereto may have to be explored, if and when occasion arises.

In the result the appeals fail and are dismissed but there will be no order as to costs.

SHINGHAL J.-I have gone through the judgment of my Lord the Chier' Jusitce. While I concur with him that the appeals fail oand

should b() dismissed, I think there is really no occasion to cousider the argument of Mr. Datar that the continued application of the Madras Hindu Religious and Charitable Endowments Act, 1951 (re-ferred to as the Madras Act of 1951 by the .Chief Justice) to the South Kanara district, is violative of article 14 of the Constitution. So also, I am unable to subscribe to the view that "inequality i& so clearly writ large on the face of the impugned statute in its applica-tion to the district of South Kanara only ·that it is perilously near the periphery of unconstitutionality," when the necessary data to justify that conclusion has not been placed on the record and when it has been found that there is no justification for holding that the continued application of that Act to the South Kanara district has become viola-tive of article 14 "until now". If I may say so with respect, that is. my apology for expressing myself_ on tlrat shori point, although I agree with my Lord on questions relating to the competence of the Com-missioner for Settlements and Charitable Endowments to exercise the functions of the Commissioner under the Madras Act of 1951, and the existence of quid pro quo.The right to equality enshrined in article 14 has been shortly but grandly stated in the form of the directive that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of the country. It is therefore funda-mental right which every citizen possesses; and he has the further right, under article 13(2), to ask that the law which takes away or · abridges any of the rights conferred by Part III shall, to the extent it contravenes that right, be declared to be void. That is why fur-ther provision has expressly been made in article 32 guaranteeing the right to move this Court "by appropriate proceedings" for the enforce-ment of the rights conferred by Part III, and it lras been provided in article 226, inter alia, that every High Court shall have the power to issue the writs mentioned therein: for the enforcement of any of those rights. It does not require much argument to say further that, in either case, it is for the aggrieved citizen to file the appropriate pro-ceeding or petition for redress of his grievance, in order that the Court may hear the other concerned party, examine the merits of the matter, and arrive at decision.

In _other words, pleading or statement of the material faots is necessary on the side of the petitioner and, if his claim is contested, -0n the side of the respondent, for that enables them to formulate their case in preparation of the hearirg. Besides giving fair notice of the case of either side, that defines the points at issue and confines the controversy to them, It also enables the parties to bring out their

evidence to best advantage, and eliminates prejudice or snap aeci-sion. Pleadings are thus of vital importance, for if there is no pJeadC ing of the necessary facts in petition for the redress of grievance, the petitioner has h~self to thank for his ultimate discomfiture. on that account.

Before referring to the pleadings in these cases, it may be mention-B ed that point quite similar to the one before us arose for consideration •in State of Madhya Pradesh v. Bhopal Sugar lndu3tries Ltd.(') Ia that case, the former Bhopal State enacted the Bhopal State Agri-cultural Income-tax Act, 1953, which provided for the imposition and levy of tax on agricultural income. The Act was brought into force on July 15, 1953, and was applied to the territory of the whole . of the Bhopal State. That State was incorporated into the new State of Madhya Pradesh with effect from November 1, 1956, and by virtue oj section 119 of the States Reorganisation Act, 1956, the Bhopal State Agricultural Income-tax Act continued to remain in force in that constituent region, Later, the Madhya Pradesh Extension of Laws Act, 1958, extended several Central and State laws to the entire State of Madhya Pradesh, but no change· was made in the territorial operation of the Bhopal State Agricultural Income-tax Act in the area to which ii originally applied in 1953. There was, however, no law in the resl of the Madhya Pradesh Stal~ providing for the levy of tax on agricultural income.

The Bhopal Sugar Industries Ltd., which had been incorporated under tho Companies Act of the Bhopal State, continued to pay the agicultural income-tax under the Bhopal Act until 1960, when it challenged the levy as violative of article 14 of the Constitution. It was held by Constitution Bench of this Court that while, prima facie, differential treatmeni was being accorded by the State of Madhya Pradesh to porsons carrying on agricultural operations in the Bhopal region, because the State subjected them to tax on agricultural income which was not imposed upon agricultural income earned in the rest of the State, "that by itself (could) not be ground for declaring the Aci ultra vires." This Court took note of the mandate of article 14, and referred to number of its earlier decisions in which it had been held that where application of unequal laws was reasonably justified for historical reasons, geographical classification founded on ttiose historical reasons would be upheld. This Court expressed its view as follows:-

"Continuance of the laws of the old region after the· reorganisation by s. 119 of the States Reorganisation Act was by itself not discriminatory even though it resulted in (!) [1964] 6 S.C.R. 846.

differential treatment of persons, objects and transactions in the new State. because it was intended to serve dual pur-pose facilitating the early formation of homogeneous units in the larger interest of the Union, and maintaining even while merging its political identity in the new unit, the dis-tinctive character of each region, till uniformity of laws was secured in those branches in which it was expedient after full enquiry to do so. The laws of the regions merged in the new units had therefore to be continued on grounds of necessity and expediency. Section 119 of the States Reor-ganisation Act was intended to serve this temporary purpose, viz., to enable the new units to consider the special circums-tances of the diverse units, before launching upon process of adaptation of laws so as to make them reasonably uni-form, keeping in view the special needs of the component regions and administrative efficiency. Differential treatment arising out of the application of the laws so continued in different regions of the same reorganised State, did not therefore immediately attract the clause of the Constitution prohibiting discrimination." It was at the same time appreciated that by passage of time, con-siderations of necessity and expediency may be obliterated, and the grounds which justified classification of geographical region for historical reasons may cease to be valid, and it was observed that purely temporary provision could not be permitted to assume perma-nency so as to perpetuate discriminatory treatment without rational basis to support it after the initial expediency and necessity had disappeared. But even while making this observation on point relating to the legal aspect of the prayer for redress under article 14 of the Constitution, this Court expressed disagreement with the view of the High Court that as no attempt was made to remove the discri-mination in the matter of the levy of agricultural income-tax, it was unlawful because the State had since the enactment of the States Re-organisation Act sufficient time and opportunity to decide whether the continuance of the Bhopal State Agricultural Income-tax Act in the Bhopal region would be consistent with article 14 of the Consti-tution. In that connection, the Court went on to hold as follows-

"It would be impossible to lay down any definite time-limit within which the State had to make necessary adjust-ments so as to effectuate the equality clanse of the Constitu-tion. That initially there was valid geographical classifi-cation of regions in the same State justifying unequal laws when the State was formed must be accepted. But whether

the· continuance of unequal laws by itself sustained the plea of unlawful discrimination in view of changed circumstances could only be ascertained after full and thorough enquiry into the continuance of the grounds on which the inequality could rationally be founded, and the change of circums-tances, if any, which obliterated the compulsion of expediency ana necessity existing at the time when the Reorganisation Act was enacted."

Specific mention was made of the pleadings of the parties and it was held that,-

"there was no clear perception by the parties of what has to be pleaded and proved to establish plea of denial of equal protection of the laws. The Company merely assnm-ed that the existence of law relating to taxation which imposed agricultural income-tax in the Bhopal region, there being no similar levy in the rest of the State, was in law discriminatory. That is clear from the petition of the Com-pany which merely asserted that the Act discriminated bet-ween the Company and other owners of sugarcane farms in the State of Madhya Pradesh, because it singled out the Com-pany and other agriculturists in the Bhopal region from other agriculturists and sugarcane farm owners in the State of Madhya Pradesh and subjected them to liability without any reasonable basis for classification."

This Court made reference to the view of the High Court that if after the expiry of reasonable period during which the State had the opportunity of making the necessary adaptations so as to make the Act applicable to the entirety of the new State, the State fails to adapt the Jaw, the historical considerations which initially justified the classification must be deemed to have disappeared. It clearly held that such an assumption, without further enquiry, was not correct. It in fact went to the extent of holding that "the mere existence of agricultural income impost in one region, and absence of such impost in another region may not necessarily justify an inference of unlawful discrimination.

It was therefore, held in that case that as the petition for the writ was "singularly deficient in furnishing particulars which would justify the plea of infringement of article of the Constitution", the . mere plea of differential treatment was by itself not sufficient. For that reason it allowed the State's appeal and remanded the case for retrial after giving an opportunity to the parties to amend the writ petition and the affidavit in reply.

H. H. SWAMIJI v. COMMISSIONER. (Shinghal, J.)

I have made reference to the above nnanimous decision of Constitution Bench of this Court for it has stood the test of time and directly bears on the point on which I have felt it necessary to express myself differently from the view taken by my Lord the Chief Jnstice. I shall therefore proceed to examine whether the appellants in these cases could be said to have furnished the necessary particulars in their pleadings, to enable the High Court to examine their claim with reference to article 14 of the Constitution, for it is by now well settled that mere efflux of time ·w,0uld not raise the presumption of discrimina-tion or denial of equality before the law.

It will be sufficient for me to refer in this connection to the plead-ings in writ petition No. 157 5 of 1965 and the accompanying affidavit, for the averments in the other petitions are no better.

Jt has thus been stated in paragraph 22, in respect of the Admar Mutt, Udipi, as follows :-

"22. The petitioner submits that the States Reorganisa-tion Act came into effect on 1-11-1956. The Madras H.RE. Act is being enforced by the respondents only in the old Madras area namely, South Kanara and the Kollagal Taluk of the present Mysore District, whereas in entire areas of old Mysore, Coorg and Hyderabad, there is no such demand, nor any legislation similar to the one in the former areas. In the Bombay area, there is separate Bombay Public Trusts Act. The 3rd respondent has ample time in these 8 or 9 years to unify the legislation and not to take advantage of the disparities between the different areas and then try to enforce the Madras Act and to make as much amount as it can from out of the district of South Kanara alone. This action of the 1st respondent is wholly discriminatory under Section 14 of the Constitution of India and is void and illegal on that ground alone."

Then it has been stated in paragraph 23 that the demands made by the Commissioner of Hindu Religious and Charitable Endowments upon the mutts and the non-mutts out of the 30 major institutions and the others which are . minor institutions is discrin!inatory and illegal for the reason that "mutts are class by themselves and cannot be discriminately mixed up with temples even from the point of view of the services rendered by the first respondent to them."

It is thus quite clear that the appellants rested their plea of dis-crimination on the sole ground that the continued application of the provisions of the Act to South Kanara district of the reorganised State a(ter 8 or 9 years from November 1, 1956, (when the State was

fontted) without "uuifying" the legislation on the subject of Hindu religious and charitable endowments, was "wholly discriminatory.'' The other plea in paragraph 23 about "mixing" of mutts with temples is not quite intelligible and has not even been referred to by couusel during the course of their arguments. The ground which has been taken is therefore quite untenable for, as has been mentioned, it has been declared in the case of the Bhopal Sugar Industries that it is impossible to lay down any definite time limit within which the State has to make the necessary adjustment for the purpose of effectuating the equality clause of the Constitution, and that while the differential treatment could not be permitted to assume permanency without rational basis to support it as years go by, mere plea of differential treatment is by itself not sufficient to attract the application of article 14. The ~allowing further observation in that case clearly bears; on the point under consideration :-

discriminatory.''

"It cannot be said that beca\lie certain, number of years have elapsed or that the State has made other laws uniform, the State has acted improperly in continuing an impost which operates upon class of citizens more harshly than upon others."

It may be that if the appellants had furnished the necessary parti-culars in support of their plea of discrimination, the respondents would have come out with whatever defence was 11.vail11.ble to them. For instance, the State might perhaps have found it possible to plead that the provision for the collection of the contribution under section 16 of the Madras Act of 1951 was beneficial to the religious and charit-able institutions and endowmenti; and was not burdensome in view of the services rendered by the authorities of the Stitte goverlllllent, and that sub-section (5) of that section Wll.S benefitial as it provided that if thece was surplus after meeting 1tll the charges referred to in the preceding sub-section, it could be utilised for helping the poor and needy institutions etc. As it is, section 81 of the Act provides for the establishment of the Madras Hindu Religious 11.nd Charitable Endowments Administration Fund, which vests in the Commissioner,· and not in the State, so that it has its separate existence and purpose, and it might have to be examined whether the provision for the mak-ing of compulsory contribution to it was unfair or discriminatory.

If the appellants thought otherwise, it was necessary for them to plead and establish the necessary facts to enable proper enquiry into their allegation of inequal or discriminatory treatment. But, 11.s has been stated, that has not been done. I am therefore unable to think~ that, in the absence of the necessary pleadings, it can be said that

inequality is so clearly writ large on the face of the impugned statute in its application to the district of South Kanara only, that is perilously near the periphery of unconstit~tionality merely because of the lapse of 23 years.

But quite apart from the unsatisfactory nature of the pleadings in these cases which, by itself, justified the dismissal of the writ petitions, and the fact that Constitution Bench of this Court has taken the view, in the case of the Bhopal Sugar Industries Ltd., that it cannot be said that because certain nmnber of years have elapsed, the State has acted improperly in continuing an impost which operatei; upon class of citizens more harshly than upon others, it has to be remem-bered that mutt is monastic institution for the use and benefit of ascetics belonging to particular Order presided over by superior who is its religious teacher. The mutt property, though originally given by donor, belongs to that spiritual family represented by the superior or mahant. It does not, however, vest in him, !ls he is some sort of "shabait", and vests in the mutt as jurljtic peroott. Thi!; has been sufficiently borne out in the definition of "math" in clause 10 of section 6 of the Madras Act of 1951. mutt has therefore laudable object and it is in the interei;t of all concerned that 1mch en-\lowments should be properly administered. As there are mutt" in the other areas of the Karnatak:a Stitte (besides the South Kwara district) it is necessary that the State Government should. examine whether the contribution provided for by the Madras Act of 1951 is really necessary and advantitgeous for the proper adtnini.tcation of the rcli-giOUll and charitable institutions and endowmenti in tho State as whole and if not, whether it is an inequality, and its continued appli-cability to the South Kanara district can be justified with reference tG article 14 of the Constitution. I agree with the Chief Justice that this may be done "say, within year or so."

P.B.R .