LexH. H. SUDHUNDRA THIRTHA SWAMIAR versus COMMISSIONER FOR HINDU RELIGIOUS & CHARITABLE ENDOWMENTS, MYSORE
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1962 302 SUPREME COURT REPORTS [1963] SUPP. H. H. SUDHUNDRA THIRTHA SWAMIAR fl. COMMISSIONER FOR HINDU RELIGIOUS & CHARITABLE ENDOWMENTS, MYSORE 1B. P. SINHA., c. ]., P. B. G4JENDRA.GADKAR. K. N. WANOHOO, K.C. DAS GUPTA and ]. C. SHAH, JJ.) Hindu ReUgiom Endowmen18-Ma1"8-0ommi84ioner's power to bring a •uil for removal of 17'U8tees-Wlatthtr infringes fundamtntal right-Patkaltamka given to tM Mahant as head of Muth given puBOMlly to the Math-Only the former need be UBed for Math-Annual conJrib'Uiion-Levy of-Whe!Mr tax or fee-&trOBputive Legillalion-Power of · State Legislaturt- Oomtitvlion of India, Arl. 19(/) 25, 26, 27-Beventh Schedule, /Mt II, Items 28, 47~Jlat?.ra. Religious Endowment. Act, 1951 (Madras XIX of 1951), as afM'/lded by Act XXVII of 1953, 88. 62(1)(/), 55, 16(1) and (2), 80, 81, 82. . At Udipi in the South Kanara District there are eight Maths. Each Math is presided over by a Mathadhepathi or Swamcc. There is a nineth Math the administration of which had been traditionally carried on by each of the SwamiB · of the other eight Maths in turn. There is a tenth Math which is presided over by Shri Shankaracharya Swami gal. The Swami of Shirur Math, one of the eight Maths had challenged the vires of the Hindu Religious Endowments Act 1951 (Act XIX} in the High Court of Madras and in the appeal therefrom this Court had declared certain sections of the Act UUra !tires inasmuCh as they infringed Article 19(l)(f}, 25, 26 and 27 of the Consiitution. Subsequently by Act XXVII of 1954 the Madras Legislature omitted or amended the sections declared by this Court 'Ultra vires. Petitions were filed in the High Court challenging various section.< of the ame11ded Act. The High Court dcclarcd ultra vires sections 21, 30(2}, 31 and 76(5).and Rule 10 framed under section 100(2), and up- held the validity of sections 5l(l}(f), 55, 76(1) and (2), 80, 81 and 82. The Mahant appealed to this Court with Certificate granted by the High Court. Hdd, that a Mahant is not a mere manager or i:ustodian. ji:vcn tboua'h he is nnt • '""""" in the strict ICDIC, be ia by ·- 2 S.C.R. SUPREME COURT REPORTS 303 virtue .of his office under an obligation to discharge the duties of his office as a trustee and is answerable as such for the proper- ty. The property is attached to the office and the Mahant cannot incur eitpenditure for personal luxury or objects incongruous with his position as Mahant. The right of a Mahant over the property of the Math is undoubtedly property and unreason- able restrictions placed upon his rights which are not in the interest of the general public would by virtue of Art. 19(1)(£) read with cl. (5) be void. A""nachallam CM.tti v. V enkata C/uitapathi GuruBUlamigal, (1919) L.R. 46 I.A. 204, V«lyavaruthi Thirtha v. Baluawami Ayyar, (1921) L.R. 48 I.A. 302, Commi.<Sioner Hindu R•ligiO'Ull Endowme?llB, .\(adras v. La"8hmi Tirtha Swamiar of Si""r Math, [1954] S.C.R. 1005, followed. Held, that s. 52(l)(f) does not in effect seek to cut down the authority of the Mahant which is traditionally recognized. It on.ly implies that by virtue of his position and the limited characttr of his powers, he cannot waste the property of the Math or utilise it for his personal enjoyment or luxury or for objects incongruous with his position or for purposes wholly unconnected with the Math. Such a restriction on ·his power is in the interest of general public and cannot be said to be unrea&onablc. Section 55 as amended will not apply to PathakanikaB which are proved to be gifts personal to the Mahant and it applies only to PathokarikaB gifted to him as the head of the Math. : The annual contributions levied under the amended s. 76(1) go into a separate fund and not the consolidated fund of the state and arc earmarked for defraying the eitpenses for rendering services : they are noi even payable to the Govern- ment but arc p•yable to the Commissioner and they are levied not as a tax but only as fee. A fee does not cease to be of that character merely because there is an element of compulsion in it, nor is it a postulate of a fee that it must have direct relation to the actual service rendered. Absence of uniformity is not a criterion on which alone it.can be said that the levy is of the nature of a tax. The Legislature has power to enact appropriate retrospective legislation declaring these levies as fees by denuding them of the characteristics of tax. M/s.
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