judgement:
Appeal No. 1238 of 1966.
Appeal by special leave from the judgment and order dated January 15, 1963 of the Mysore High Court in Writ Petition No. 48 of 1962.
R. Gopalakrishnan and section P. Nayar, for the appellants.
section C. Mazumdar, M. M. Kshatriya and G. section Chatterjee, for the respondent.
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought, by special leave, from the judgment of the Mysore High Court dated January 15, 1963 in Writ Petition No. 48 of 1962 granting a writ in the nature of mandamus directing the appellants to accord to the respondent that benefit of both the revised higher pay scales for the Matriculate tracers with effect from the respective dates on which they came into force.
The respondent, Narasing Rao was employed as a tracer in the Engineering Department in the Ex Hyderabad State on the scale of pay Rs. 65 90.In the cadre of tracersof that State,there were matriculates as well as non matriculates.
But there was no distinction made in the scale of pay for that reason and all the tracers were placed in the same scale.
The respondent was a non matriculate.
There was re organisation of States in 1956 and as a result of the re organisation a part of the area of Hyderabad State became part of the new Mysore State.
The respondent was allotted to the new Mysore State.
After the transfer of the respondent to the new State.
the cadre of tracers into which tracers from Bombay State had also been absorbed, was re organised into two grades, one consisting of matriculate tracers whose scale of pay was fixed at Rs. 50 120 and the other of non matriculates 409 at Rs. 40 80 with effect from January 1, 1957.
It is necessary to state that in the old Mysore State even before November 1, 1956 there were two grades of tracers, viz., non S.S.L.C. tracers on the pay scale of Rs. 30 50.
and S.S.L.C. tracers on the pay scale of Rs. 40 60.
As the respondent was a non matriculate he was given the option to accept the new scale of pay i.e., Rs. 40 80 or remain in the old Hyderabad scale of Rs. 65 90.
But the respondent refused to exercise the option and claimed that the cadre of tracers in the new Mysore State should not have been divided into two grades and that no distinction should have been made between matriculates and non matriculates.
The respon dent insisted that his pay should be fixed in the grade Rs. 50 120.
The claim was rejected by the Superintending Engineer on March 19, 1958 and the respondent was told that he could only be fixed in the new revised scale of Rs. 40 80 as he had not passed the S.S.L.C. examination.
Meanwhile, by an order of the Government dated February 27, 1961 the pay scales of the tracers in the new State of Mysore were further revised and the revised pay scales were directed to come into force with effect from January 1, 1961.
Under this Government order, the tracers who had passed the S.S.L.C. examination were entitled to opt in favour of the pay scale Rs. 80 150 and those who had not passed that examination were entitled to get into pay scale of Rs. 70 1 10.
The respondent claimed that he was entitled to the pay scale applicable to the tracers who had passed the S.S.L.C. examination viz., Rs. 80150.
The claim of the respondent was rejected.
Thereafter the respondent filed a writ petition in the Mysore High Court praying that the order of the Superintending Engineer dated March 19, 1958 fixing his pay in the scale of non matriculate tracers and giving him the option; to retain his old scale may be quashed and for a writ in the nature of mandamus to fix his pay in the scale prescribed for matriculate tracers.
The High Court allowed the writ petition, holding that there was a violation of the guarantees given under articles 14 and 16 of the Constitution and granted the relief claimed by the respondent on the ground that there was no valid reason for making a distinction as both matriculate and non matriculate tracers were doing the same kind of work.
The first question to be considered in this appeal is whether the creation of two scales of tracers in the new Mysore State who were doing the same kind of work amounted to a discrimination which violated the provisions of articles 14 and 16 of the Constitution.
The relevant law on the subject is well settled.
Under article 16 of the Constitution, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State or to promotion from one office to a higher office thereunder.
Article 16 of the Constitution is only an incident of the application of the concept of equality enshrined in 410 article 14 thereof.
It gives effect to the doctrine of equality in the matter of appointment and promotion.
It follows that there can be a reasonable classification of the employees for the purpose of appointment or promotion.
The concept of equality in the matter of promotion can be predicated only when the promotees are drawn from the same source. 'This Court in dealing with the extent of protection of article 16(1) observed in General Manager, Southern Rly.
vs Rangachari(1): "Thus construed it would be clear that matters relating to employment cannot be confined only to the initial matters prior to the act of employment.
The narrow construction would confine the application of article 16(1) to the initial employment and nothing else; but that clearly is only one of the matters relating to employment.
The other matters relating to employment would inevitably be the provision as to the salary and periodical increments therein, terms as to leave, as to gratuity, as to pension and as to the age of superannuation.
These are all matters relating to employment and they are, and must be, deemed to be included in the expression 'matters relating to employment ' in article 16(1). . .
This equality of opportunity need not be confused with absolute equality as such.
What is guaranteed is the equality of opportunity and nothing more.
Article 16(1) or (2) does not prohibit the prescription of reasonable rules for selection to any employment or appointment to any office.
Any provision as to the qualifications for the employment or the appointment to office reasonably fixed and applicable to all citizens would certainly be consistent with the doctrine of the equality of opportunity; but in regard to employment, like other terms and conditions associated with and incidental to it, the promotion to a selection post is also included in the matters relating to employment, and even in regard to such a promotion to a selection post all,that article 16(1) guarantees is equality of opportunity to all citizens who enter ser vice. . .
In this connection it may be relevant to remember that article 16(1) and (2) really give effect to the equality before law guaranteed by article 14 and to the prohibition of discrimination guaranteed by article 15(1).
The three provisions form part of the same constitutional code of guarantees and supplement each other.
If that be so, there would be no difficulty in holding that the matters relating to employment must include 'all matters in relation to employment both prior, and subsequent, to the employment which are incidental to the employment and form part of terms and conditions of such employment." (1) ; , 596.
411 The argument was stressed on behalf of the respondent that success in the S.S.L.C. examination had no relevance to the post of tracer and the tracers of the erstwhile State of Hyderabad who were allotted to the new State of Mysore were persons similarly situated and there was no justification for making a discrimination against only some of them by creating a higher pay scale for tracers who had passed the S.S.L.C. examination.
It was contended for the respondent that all, the tracers who were allotted to the new State of Mysore were persons who were turning out the same kind of work and discharging the same kind of duty and there was no rational basis for making two classes of tracers, one con sisting of those who had passed the S.S.L.C. examination and the other consisting of those who had not.
In our opinion, there is no justification for the argument put forward in favour of the respondent.
It is well settled that though article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation.
When any impugned rule or statutory provision is assailed on the ground that it contravenes article 14, its validity can be sustained if two tests are satisfied.
The first test is that the classification on which it is founded must be based on an intelligible differentia which distinguishes persons or things grouped together from others left out of the group; and the second test is that the differentia in question must have a reasonable relation to the object sought to be achieved by the rule or statutory provision in question.
In other words, there must be some rational nexus between the basis of classification and the object intended to be achieved by the statute or the rule.
As we have already stated ' articles 14 and 16 form part of the same con stitutional code of guarantees and supplement each other.
In other words, article 16 is only an instance of the application of the general rule of equality laid down in article 14 and it should be construed as such.
Hence, there is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured, Article 1.6(1) does not bar a reasonable classification of employees or reasonable tests for their selection.
It is true that the selective test adopted by the Government for making two different classes will be violative of articles 14 and 16 if there is no relevant connection between the test prescribed and the interest of public service.
In other words, there must be a reasonable relation of the prescribed test to the suitability of the candidate for the post or for employment to public service as such.
The provisions of article 14 or article 16 do not exclude the laying down of selective tests, nor do they preclude the Government from laying down qualifications for the post in question.
Such qualifications need not be only technical but they can also be general qualifications relating to the suitability of the candidate for public service as such.
It is therefore not right to say that in the appointment to the post of tracers the Government ought to 412 have taken into account only the technical Proficiency of the candidates in the particular craft.
It is open to the Government to consider also the general educational attainments of the candidates and to give preference to candidates who have a better educational qualification besides technical proficiency of a tracer.
The relevance of general education even to technical branches of public service was emphasised long ago by Macaulay as follows: Men who have been engaged, up to one and two and twenty, in studies which have no immediate connexion with the business of any profession, and the effect of which is merely to open, to invigorate, and to enrich the mind, will generally be found, in the business of every profession, superior to men who have,, at eighteen or nineteen, devoted themselves to the special studies of their calling.
Indeed, early superiority in literature and science generally indicates the existence of some qualities which are securities against vice industry, self denial, a taste for pleasures not sensual, a laudable desire of Honourable distinction, a still more laudable desire to obtain the approbation of friends and relations.
We, therefore, think that the intellectual test about to be established will be found in practice to be also the best moral test can be devised." (Hansard, Series, 3 CXXVIII, 754, 755) In our opinion, therefore, higher educational qualifications such as success in the S.S.L.C. examination are relevant considerations for fixing a higher pay scale for tracers who have passed the S.S.L.C. examination and the classification of two grades of tracers in the new Mysore State, one for matriculate tracers with a higher pay scale and the other for non matriculate tracers with a lower pay scale is not violative of articles 14 or .16 of the Constitution.
We proceed to consider the next question raised on behalf of the respondent, viz., that the condition of service of the respondent has been adversely affected by the creation of two new pay scales and that there was a violation of the provisions of section 115 of the (Act No. 37 of 1956) which states: "115.
Provisions relating to other services (I) Every person who immediately before the appointed day is serving in connection with the affairs of the Union under the administrative control of the Lieutenant Governor or Chief Commissioner in any of the existing State of Ajmer, Bhopal, Coorg, Kutch and Vindhya Pradesh, or is serving in connection with the affairs of any of the existing States of Mysore, Punjab, Patiala and East Punjab States Union and Saurashtra shall, as from 413 that day, be deemed to have been allotted to serve in connection with the affairs of the successor State to that existing State.
(2) Every person who immediately before the appointed day is serving in connection with the affairs of an existing State part of whose territories is transferred to another State by the provisions of shall, as from that day, provisionally continue to serve in connection with the affairs of the principal successor State to that existing State unless he is required by general or special order of the Central Government to serve provisionally in connection with the affairs of any other successor State.
(3) As soon as may be after the appointed day, the Central Government shall, by general or special order, determine the successor State to which every person referred to in subsection (2) shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect.
(4) Every person who is finally allotted under the provisions of sub section (3) to a successor State shall, if he is not already serving therein be made available for serving in that successor State from such date as may be agreed upon between the Governments concerned, and in default of such agre ement, as may be determined by the Central Government.
(7) Nothing in this section shall be deemed to affect after the appointed day the operation of the provisions of Chapter I of of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State: Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub section (1) or sub section (2) shall not be varied to his disadvantage except with the previous approval of the Central Government.
" It was stated that in the erstwhile Hyderabad State the respondent was kept in one grade along with matriculate tracers and there has been a violation of the proviso to section 115(7) of the , because in the new Mysore State the respondent has been made to work in a separate grade of non matriculate tracers.
We do not think there is any substance in this contention.
We do not propose, in this case, to consider what is the full scope and meaning of the phrase "Conditions of SCI 13 414 service" occurring in the proviso to section 115 of the .
It is sufficient for us to say that, in the present cast,, there is no violation of the proviso and the respondent is not right in contending that his condition of service is adversely affected because he is made to work in the grade of non matriculate tracers in the new Mysore State.
It was alleged by the respondent that according to Hyderabad rules 20 per cent of the vacancies of SubOverseers were to be from the grade of tracers and for those who were not promoted there was another grade of Rs. 90 120 and if the order of the Superintending Engineer dated March 19, 1958 was to stand, the respondent 's chance of promotion would be affected.
In their counter affidavit the appellants have said that 10 percent of the tracers in the new State of Mysore are entitled to be promoted to the grade of Assistant Draftsmen in the scale of Rs. 110 220.
The basis of promotion to the higher grade was the inter State seniority list prepared under the provisions of the .
It was stated that the seniority of the respondent was not affected and he had not been deprived of any accrued benefits.
The basis of promotion to the higher grades was selection based on merit cum seniority.
In other words, both matriculate and non matriculate tracers were eligible for promotion on the basis of the inter State seniority list prepared for this Department.
In our opinion, Counsel on behalf of the respondent is unable to make good his submission on this aspect of the case.
For the reasons expressed we hold that the judgment of the Mysore High Court dated January 15, 1963 in Writ Petition No. 48 of 1962 should be set aside and this appeal must be allowed.
But, as directed by this Court in its order granting special leave dated November 6, 1963, the appellant State of Mysore will pay the costs of the respondent.
R.K.P.S. Appeal allowed.

summary:
The respondent was employed as a Tracer in the Engineering Department in the erstwhile Hyderabad State where the cadre of Tracers consisted of both matriculates as well as non matriculates and no distinction was made between them.
As a result of the reorganisation of States in 1956 he was allotted to the appellant Mysore State where the cadre of Tracers was reorganised into two, ,one consisting of matriculate Tracers in a higher scale of pay and the other of non matriculates in a lower scale.
The respondent was given the option either to remain in his old Hyderabad scale of pay or to accept the new scale applicable to non matriculates.
He refused to exercise the option and claimed that the cadre of Tracers should not have been divided into two grades and that no distinction should have been made between matriculates and non matriculates.
His claim was rejected by the Superintending Engineer on March 19, 1958 and he filed a writ petition in the High Court praying that the order of the Superintending Engineer be quashed and for the issue of writ in the nature, of mandamus to fix his pay in the scale prescribed for matriculate Tracers.
The High Court allowed the petition, holding that there was no valid reason for making a distinction as both matriculate and non matriculate Tracers were doing the same kind of work and the distinction made was in violation of articles 14 and 16 of the Constitution.
On appeal to this Court, Held: Allowing the appeal.
Higher educational qualifications are relevant considerations for fixing a higher pay scale and the classification of two grades of Tracers in the new Mysore State was not violative of articles 14 or 16 of the Constitution.
Articles 14 and 16 form part of the same constitutional code Of guarantees and supplement each other.
In other words article 16 is only an instance of the application of the general rule of equality laid down in article 14 and it should be construed as such.
Hence there is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured.
[411E F] 408 The provisions of article 14 or article 16 do not exclude the laying down of selective tests, nor do they preclude the Government from laying down qualifications for the post in question.
Such qualifications need not be only technical and it is open to the Government to consider the general educational attainments of the candidates and to give preference to candidates who have better educational qualifications besides the technical proficiency of a Tracer.
[411G412B] General Manager, Southern Railway vs Rangachari, ; , 596, referred to.
There was no force in the respondent 's contention that because of his having been in one grade with matriculate Tracers in the old State and, on his being made to work in a separate non matriculate grade in the new State his conditions of service were adversely affected in violation of section 116(7) of the .
Furthermore the basis of promotion was merit and seniority based on the interstate seniority list prepared under the provisions of the Act; thus the respondent 's seniority had not been affected and he was not deprived of any accrued benefits.
[412F G; 414C D]


judgement:
Appeal No. 1082 of 1967.
Appeal from the judgment and order dated March 7, 1967 of the Delhi High Court in Company Appeal No. 3 of 1967.
A. N. Khanna and Harbans Singh, for the appellant.
P. C. Khanna and Maharaj Krishan Chawla, for the respon dent.
The Judgment of the Court was delivered by Shah, J.
The appellants private limited Company is engaged in the manufacture of electric conduit pipes.
The respon dent who is a director of the Company presented a petition in the High Court of Delhi under sections 433 and 439 of the , for an order for compulsory winding up of the Company.
The respondent claimed that it was "just and equitable" within the meaning of section 443(f) of the , to make an order for compulsory winding up, because one of the three factories of the Company had been closed, that the accounts of the Company were not being shown to the respondent, that no meeting of the Company had been held, no balance sheet had been prepared and a letter of resignation purported to be signed 430 431 by the respondent had been forged.
On July 18, 1966, Capoor, J., directed that notice of the petition be issued to the appellant Company.
The order has not been formally drawn up, and it is not clear whether by that order it was intended to call upon the Company to show cause why the petition should not be admitted, or that by the order the petition was admitted and notice under r. 96 of the Companies (Court) Rules, 1959 was issued.
The appellant Company filed its reply controverting the allegations made by the respondent.
The Company also filed an application that the winding up petition filed by the respondent be taken off the file and be dismissed and that the petition in the meantime be not advertised.
H. R. Khanna, J., held that the appropriate remedy of the respondent on the allegations of mismanagement of the affairs of the Company and oppression of the minority shareholders by the group of Anandi Lal was to file a petition under sections 397 and 398 of the .
The learned Judge further held that the petition for winding up was instituted with a view "to unfairly prejudice the interests of the shareholders of the Company", respondent having set up a rival factory in the name of his son for manufacturing electric conduit pipes.
The learned Judge directed that the petition be not advertised and be.
dismissed.
In appeal against the order passed by H. R. Khanna, J., the High Court of Delhi held that under the Companies (Court) Rules, 1959, once a petition is admitted to the file, the Court is bound forthwith to advertise the petition.
The company challenges that order in this appeal.
Rule 96 of "The Companies (Court) Rules, 1959" framed by this Court provides : "Upon the filing of the petition, it shall be posted before the Judge in Chambers for admission of the petition and fixing a date for the hearing thereof and for directions as to the advertisement to be published and the persons, if any, upon whom copies of the petition are to be served.
The Judge may, if he thinks fit, direct notice to be given to the company before giving directions as to the advertisement of the petition.
" Rule 24 which relates to advertisement of petitions provides "(1) Where any petition is required to be advertised, it shall, unless the Judge otherwise orders, or these, Rules otherwise provide, be advertised not less than fourteen days before the date fixed for hearing, in one issue of the Official Gazette of the State or the Union Territory concerned, and in one issue each of a daily newspaper in the English language and a daily newspaper in the regional language circulating in the State or the Union Territory concerned, as may be fixed by the Judge.
432 (2) Except in the case of a petition to wind up a company, the Judge may, if he thinks fit, dispense with any advertisement required by these Rules.
" When a petition is filed before the High Court for winding up of .a company under the order of the Court, the High Court (i) may issue notice to the Company to show cause why the petition should not be admitted; (ii) may admit the petition and fix a date for hearing, and issue a notice to the Company before giving directions about advertisement of the petition; or (iii) may admit the petition, fix the date of hearing of the petition, and order that the petition be advertised and direct that the petition be served upon persons specified in the order.
A petition for winding up cannot be placed for hearing before the Court, unless the petition is advertised that is clear from the terms of r. 24(2).
But that is not to say that as soon as the petition is admitted, it must be advertised.
In answer to a notice to show cause why a petition for winding up be not admitted, the Company may show cause and contend that the filing of the petition amounts to an abuse of the process of the Court.
If the petition is admitted, it is still open to the Company to move the Court that in the interest of justice or to prevent abuse of the process of Court, the petition be not advertised.
Such an application may be made where the Court has issued notice under the last clause of r. 96, and even when there is an unconditional admission of the petition for winding up.
The power to entertain such an application of the Company is inherent in the Court, and r. Nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to give such direction or pass such orders as may necessary for the ends of justice to prevent abuse of the process of the Court", iterates that power.
In in re. A. Company(1) it was held that if the petition is not presented in good faith and for the legitimate purpose of obtaining a winding up order, but for other purpose such as putting pressure on the Company, the Court will restrain the advertisement of the petition and stay all further proceedings upon it.
We may state that the High Court of Punjab in Lord Krishna Sugar Mills Ltd. vs Smt.
Abnash Kaur(2) was right in ,observing that the Court in an appropriate case has the power to .Suspend advertisement of a petition for winding up, pending disposal of an application for revoking the order of admission of the petition, though we may hasten to state that we cannot agree H.R. Khanna,, J., was apparently satisfied that the petition was not a, bona fide petition and the respondent in presenting (1) (2) A.L.R. 1961 Punjab 505.
433 the petition was acting with ulterior motive and his attempt to obtain an order for winding up was "unreasonable".
Before the High Court directed that the petition for winding up be advertised,the High Court was bound to consider whether the view expressed by H. R. Khanna,, J., was right.
For reasons already set out, in our judgment, the High Court erred in holding that a petition for winding up must be advertised even before the application filed by the Company for staying the proceeding for the ends of justice, or to prevent abuse of the process of the Court.
The view taken by the High Court that the Court must, as soon as the petition is admitted, advertise the petition is contrary to the plain terms of r. 96.
Such a view, if accepted, would make the Court an instrument, in possible cases, of harassment and even of blackmail, for once a petition is ad vertised, the business of the Company is bound to suffer serious loss and injury.
The appeal is allowed.
The High Court has disposed of the appeal on a ground of procedure and has not considered whether the view of H. R. Khanna, J., that in the exercise of the inherent power for the ends of justice and for prevention of the abuse of the process of Court, the petition should not be advertised, is correct.
The case is therefore remanded with the direction that the High Court do deal with and dispose of the appeal according to law.
There will be no order as to its costs in this Court.
The costs in the High Court will be costs in this appeal.
Y.P. Appeal allowed.

dataset_name: IN-Abs

summary:
In an appeal to this Court, the High Court 's view that on the admission of a petition under sections 433 and 439 of the for compulsory winding up of a company, the Court is bound forthwith to advertise the petition, was challenged.
Held: A petition for winding up cannot be placed for hearing before the Court, unless the petition is advertised: that is clear from terms of r. 24(2) of the Companies (Court) Rules, 1959.
But that is not to say that as soon as the petition is admitted, it must be advertised.
If the petition is admitted, it is still open to the company to move the Court that in the interest of justice or to prevent abuse of the process of Court, the petition be not advertised.
Such an application may be made where the Court has issued notice under the last clause of r. 96, and even when there is an unconditional admission of the petition for winding up.
The power to entertain such an application of the company is inherent in the Court and r. 9 iterates that power.
[432C F] In re. A. Company applied.
Lord Krishna Sugar Mills Ltd., vs Smt.
Abnash Kaur A.I.R. (1961) Punj.
505 approved.


judgement:
Appeal No. 500 of 1965.
Appeal by special leave from the judgment and order dated February 5114, 1963 of the Gujarat High Court in Civil Revision Application No. 597 of 1961.
M. V. Goswami, for respondents Nos. 1 to 3.
M.S. K. Sastri, section P. Nayar for R. H. Dhebar, for respondent No. 7.
The Judgment of the Court was delivered by Shah, J.
Respondents 1 to 4 and respondent No. 6 are the trustees of a public trust, styled "Shri Tricumraiji".
In March 1950 the trustees mortgaged a house belonging to the trust to one Saheba to secure repayment of Rs. 5,000.
An action instituted by the mortgagee against the trustees to enforce the mortgage was compromised, and it was decreed that the trustees do pay Rs. 3,910 due under the mortgage by monthly instalments of Rs. 100 each and in default of three instalments the entire amount remaining unpaid shall become due and recoverable from the mortgagee property.
The trustees did not pay the instalments due under the decree, and in an application for execution by the mortgage( the mortgaged property was put up for sale and the bid of the appellant was accepted for Rs. 5,000 by the executing Court.
The, trustees thereafter applied under 0.
21 r. 89 of the Code of Civil Procedure for setting aside the sale and deposited Rs. 250 being 5 % of the purchase money for payment to the appellant and Rs. 6 for payment to the mortgagee, claiming that in consideration o the latter amount the mortgagee had agreed to "give to them six months ' for payment of the mortgage amount", and had agree, in the meantime to abandon the application for execution.
The Subordinate Judge passed an order disposing of the execution application and directed that Rs. 250 out of the amount deposit, by the trustees be paid over to the appellant.
In appeal against that order by the appellant, the District Court reversed the order holding that since the trustees bad failed to comply with the requirements of r. 89 of 0.
21 Code of Civil Procedure, the executing Court had no jurisdiction to set aside the sale.
The High 457 Court of Gujarat in exercise of powers under s.115 of the Code of Civil Procedure set aside the order of the District Court.
Raju, J. , held that sale of the mortgaged property which belonged to a public trust.
without the sanction of the Charity Commissioner being prohibited by section 36 of the Bombay Public Trusts Act, was invalid, and on that view remanded the case to the District Court "for decision on all the points correctly arising out of the matter".
Against that order, this appeal has been preferred with special leave.
The mortgaged property belongs to a public trust within the meaning of the Bombay Public Trusts Act.
Section 36 of the Bombay Public Trusts Act reads as follows: "Notwithstanding anything contained in the instrument of trust (a) no sale, mortgage, exchange or gift of any immovable property, and (b) no lease for a period exceeding ten years in the case of agricultural land or for a period exceeding three years in the case of non agricultural land or a building, belonging to a public trust, shall be valid without the previous sanction of the Charity Commissioner.
" Raju, J., was of the opinion that the expression 'sale ' in section 36(a) includes a sale of the property of a public trust in execution of a decree of a civil Court for recovery of a debt due by the trust, and on that account a sale in execution of a decree held without the previous sanction of the Charity Commissioner must be deemed invalid.
We are unable to agree with that view.
Obviously the transactions of mortgage, exchange or gift or lease of any immovable property in cls.
(a) & (b) contemplated to be made by the trustees are voluntary transactions, and in the absence of any clear provision in the Act, the expression "sale" in cl.
(a) would only mean transfer of property by the trustees for a price.
Section 36 occurs in Ch.
V relating to 'Accounts and Audit ', and is one of the provisions which imposes restrictions on the powers of the trustees.
There is nothing to indicate, either in the words of the section, or in the context in which it occurs, that the sale prohibited without sanction of the Charity Commissioner includes a Court sale in execution of a decree.
For the purpose of the present case.
we do not deem it necessary to express any opinion on the question whether a sale in exercise of authority derived from the trustees, e.g. a covenant for sale under an English mortgage executed by the trustees or a sale in terms of a consent decree attracts the application.
of section 36 of the Act.
We have no doubt, however, that the Legislature did not intend to put any restriction upon the power of the Civil Court executing a decree for recovery 458 of money due from the trust, by sale of the property of the trust.
The section imposes a fetter upon the power of the trustees: it is not intended thereby to confer upon the Charity Commissioner an overriding authority upon actions of the Civil Court in execution of decrees.
The learned Judge also held that section 56B of the Bombay Public Trusts Act which provides that "in any suit or legal proceedings in which it appears to the Court that any question affecting a public religious or charitable purpose is involved, the Court shall not proceed to determine such question until after notice "has been given to the Charity Commissioner", made it obligatory upon the Court to issue notice to the Charity Commissioner, and if that officer desires to be joined as a party, to implied him in a proceeding to enforce a mortgage by sale of the mortgaged property.
In our judgment, that view also cannot be sustained.
A suit to enforce a mortgage or a proceeding to enforce a mortgage decree against property belonging to a public trust is not a suit or proceeding in which a question affecting a public religious or charitable purpose is involved.
The District Court was, in our judgment, right in holding that the requirements of 0.
21 r. 89 of the Code of Civil Procedure were not complied with and the Subordinate, Judge had no power to set aside the sale held in execution of the decree.
Order 21 r. 89 of the Code of Civil Procedure which in terms applies to sale of immovable property in "execution of a decree" which expression includes execution of a decree for sale of mortgaged property, enables any person either owning such property or holding an interest therein by virtue of a title to apply to have the sale Set aside on his depositing in Court, (a) for payment to the purchaser, a sum equal to five per cent.
of the purchase money, and (b) for payment to the decree holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree holder.
Rule 89 requires that two primary conditions relating to deposit must be fulfilled: the applicant must deposit in the Court for payment to the auction purchaser 5 % of the purchase money: he must also deposit the amount specified in the proclamation of sale less any amount received by the decree holder since the date of proclamation of sale for payment to the decree holder.
In the present case, the trustees of the trust had deposited Rs. 250 for payment to the auction purchaser.
They also deposited Rs. 63 for payment to the decree holder, but it is common ground that the claim of the mortgagee was not satisfied, by that deposit.
The 459 first condition was, therefore, fulfilled, but the second condition of 0 .21 r. 89 was not fulfilled.
It was urged, however, that the mortgagee having agreed to, abandon the execution proceeding and to wait for six months for receiving payment of the mortgage dues from the trustees, abandonment of the execution proceeding was in law equivalent to, payment to the decree holder of the amount specified in the proclamation of sale for the recovery of which the sale was ordered.
This in our Judgment is a futile argument.
By abandoning the execution proceeding the claim of the creditor is not extinguished: he is entitled to commence fresh proceedings for sale of the property.
Rule 89 of 0.
21 is intended to confer a right upon the judgment debtor, even after the property is sold, to satisfy the claim of the decree holder and to compensate the auction purchaser by paying him 5 % of the purchase money.
The provision, is not intended to defeat the claim of the auction purchaser, unless the decree is simultaneously satisfied.
When the judgment creditor agrees to extend the time for payment of the amount for a specified period and in the meanwhile agrees to receive interest accruing due on the amount of the decree, the condition requiring the judgment debtor to deposit in Court for payment to the decreeholder the amount specified in the proclamation of sale for the recovery of which the sale was ordered.
cannot be deemed to be complied with.
Our attention was invited to several decisions in which it was held, that if the judgment debtor instead of depositing in Court the amount specified in the proclamation of sale for recovery of which the property is sold, satisfies the claim of the decree holder under the decree, the requirements of 0.
21 r. 89 are complied with: Subbayya vs Venkata Subba Reddi(1), Muthuvenkatapathy Reddy vs Kuppu Reddi and Others(2), Laxmansing Baliramsing vs Laxminarayan Deosthan(3).
Rabindra Nath vs Harendra Kumar(4).
M. H. Shivaji Rao vs Niranjanaiah and Ant .
These cases proceed upon interpretation of the expression 'less any amount which may since the date of such proclamation of sale, have been received" occurring in cl.
(b) of r. 89.
It is unnecessary to venture an opinion whether these cases were correctly decided.
It is sufficient to observe that an order setting aside a court sale, in execution of a mortgage decree cannot be obtained, under 0.
21 r. 89 of the Code of Civil Procedure by merely depositing 5 % of the purchase money for payment to the auction purchaser and persuading the decree holder to abandon the execution proceed (1) A.I.R.1935 Mad. 1050.
(2) A.I.R.1940 Mad. 427: I.L.R. (3) I.L.R.[1947] Nag.
(4) A.I.R.1956 Cal. 462.
(5) A.I.R.1962 Mys. 36. 460 Before parting with the case, it is necessary to deal with certain questions of fundamental importance in the administration of justice which the judgment of Raju, J., raises.
The learned Judge observed (I) that even though there is a judgment of a Single Judge of the High Court of which he is a member or of a Division Bench of that High Court, he is not bound to follow that precedent.
because by following the precedent the Judge would act contrary to section 165 of the Indian Evidence Act, and, would also violate the oath of office taken by him when entering upon his duties as a Judge under the Constitution; and (2) that a judgment of a Full Bench of the Court may be ignored by a Single Judge, if the Full Bench judgment is given on a reference made on a questionof law arising in a matter before a single .Judge or a DivisionBench.
Such a judgment, according to Raju.
J. would "Dot be a judgment at all" and "has no existence in law".
The observations made by the learned Judge subvert the accepted notions about the force or precedents in our system of judicial administration.
Precedents which enunciate rules of law form the foundation of administration of justice under our system.
It has been held time and again that a single Judge of ,,a High Court is ordinarily bound to accept as correct judgments of Courts of coordinate jurisdiction and of Division Benches and of the Full Benches of his Court and of this Court.
The reason ,of the rule which makes a precedent binding lies in the desire to .secure uniformity and certainty in the law.
We may refer to the observations made by Venkatarama Aiyar.
J. in Jaisri Sahu vs Rajdewan Dubey and Others(1) and the cases referred to therein.
If decisions of the same or a superior Court are ignored, eventhough directly applicable.
by a Judge in deciding a case arising before him, on the view that every .Judge is entitled to take such view as he chooses of the question of law arising before him as Venkatarama Aiyar, J., observed, the "law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of conflicting decisions".
The effect of a precedent of the Gujarat High Court fell to be considered indirectly in this case.
Before Raju, J., it was urged for the first time in the course of this litigation that in the absence .of the sanction of the Charity Commissioner the Court sale was invalid.
Counsel for the auction purchaser contended that this question was not raised before the District Court and that Court ,cannot be said to have acted illegally or with material irregularity in not deciding the question.
Counsel for the auction purchaser relied upon two decisions in support of that proposition: Pinjare Karimbhai vs Shukla Hariprasad(2) and Haridas vs Rataney(2) He urged that under the Bombay Reorganization Act, 1960, the (1) at pp.
567 569.
(2) (3) , 461 jurisdiction of the Bombay High Court which originally extended over the territory now forming part of the State of Gujarat, ceased when a new High Court was set up in the State of Gujarat, but it was held by a Full Bench of the High Court of Gujarat in State of Gujarat vs Gordhandas(1) that the decision of the Bombay High Court will be regarded as binding since the Gujarat High Court had inherited the jurisdiction.
power and authority in respect of the territory of Gujarat.
When pressed with the observations made in the two cases cited at the Bar, Raju.
J. found an easy way out.
He observed that the judgment of the Full Bench of the Gujarat High Court had "no existence in law".
for in the absence of a provision in ' the Constitution and the Character Act of 1861, a Judge of a High Court had no Power to refer a case to a Full Bench for determination of a question of law arising before him.
and a decision given on a reference "had no existence in law".
The learned Judge also though that if a Judge or a Division Bench of a Court makes a reference on a question of law to a Full Bench for decision.
it Would in effect be assuming the jurisdiction which is vested by the Charter of the Court in the Chief justice of the High Court.
In so observing the learned Judge completely misconceived the nature of a reference made by a Judge or a Bench of Judges to a larger Bench.
when it appears to a Single Judge or a Division Bench that there are conflicting decisions of the same Court.
or there are decisions of other High Courts in India which are strongly persuasive and take a view different from the view which prevails in his or their High Court. or that a question of law of importance arises in the trial of a case, the Judge or the Bench passes an order that the papers be placed before the Chief Justice of the High Court with a request to form a special or Full Bench to hear and dispose of the case or the questions raised in the case.
For making such a request to the Chief Justice, no authority of the Constitution or of the Charter of the High Court is needed.
and by making such a request a Judge does not assume to himself the powers of the Chief Justice.
A Single Judge does not by himself refer the matter to the Full Bench: he only requests the Chief Justice to constitute a Full Bench for hearing the matter.
Such a Bench is constituted by the Chief Justice.
The Chief Justice of a Court may as a rule, out of deference to the views expressed by his colleague, refer the case: that does not mean.
however, that the source of the authority is in the order of reference.
Again it would be impossible to hold that a judgment delivered by a Full Bench of a High Court after due consideration of the points before it is liable to be regarded as irrelevant by Judges of that Court on the round of some alleged irregularity in the constitution of the Full Bench The judgment of the Full Bench of the Gujarat High Court was binding upon Raju J., If the learned Judge was of the view (12) 462 that the decision of Bhagwati, J. in Pijare Karimbhai 's case(1) and of Nacleod, C. J. in Haridas 's case(2) did not Jay down the 'correct law or rule of practice, it was open to him to recommend ,to the Chief Justice that the question be considered by a larger Bench.
Judicial decorum, propriety and discipline required that lie should not ignore it.
Our system of administration of justice aims at certainty in the law and that can be achieved only if, Judges do not ignore decisions by Courts of coordinate authority or of superior authority.
Gajendragadkar, C. J. observed In Lala Shri Bhagwan & Anr.
vs Shri Ram Chand and Anr.
"It is hardly necessary to emphasise that consideration of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need ,to be re considered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter 'to a Division Bench.
or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question.
That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety.
" In considering whether a precedent of a Court of coordinate ,authority is binding reference to section 165 of the Evidence Act is irrelevant.
Undoubtedly, every judgment must be based upon facts declarded by the Evidence Act to be relevant and duly proved.
But when a Judge in deciding a case follows a precedent, he only regards himself bound by the principle underlying the judgMent and not by the facts of that case.
It is true that every Judge of a High Court before he enters upon his office takes an oath of office that he will bear true faith and allegiance to the Constitution of India as by law established and that he will duly and faithfully and to the best of his ability, knowledge and judgment perform the duties of office without fear ,or favour, affection or illwill and that he will uphold the Constitution and the laws: but there is nothing in the oath of office which warrants a Judge in ignoring the rule relating to the binding nature, of the precedents which is uniformly followed.
The appeal is allowed and the order passed by the High Court set aside and the order passed by the District Court restored.
In the circumstances, there will be no order as to costs in this Court and in the High Court.
Y.P. Appeal allowed.

summary:
The property of a trust was sold in execution of a mortgage decree.
The trustees sought to set aside the sale under 0.
21, r. 89 of the Code of Civil Procedure, They deposited five per cent of the purchase money for payment to the auction purchaser and claimed that the mortgagee had agreed to give them time for payment of the mortgage amount, and has agreed in the meantime to abandon the application for execution.
The subordinate judge set aside the sale.
In appeal the District Court reversed that order holding that since the trustees failed to comply with r. 89 of 0. 21 requiring the judgment debtor to deposit in court for payment to the decree holder the amount specified in the proclamation of sale for the recovery of which the sale was ordered, the executing court had no jurisdiction to set aside the sale.
A single Judge of the High Court, in revision, set aside the order on the ground that the sale of the mortgaged property, which belonged to a public trust, without the sanction of the Charity Commissioner was prohibited by section 36 of the Bombay Public Trust Act and was on that account invalid.
The ,High Court remanded the case to the District Court.
In appeal to this Court, HELD:The order of the High Court should be set aside and that of the District Court restored.
(i)Transactions of mortgage, exchange or gift or lease of any immovable property in clauses (a) and (b) of section 36 of the Bombay Public Trusts Act contemplated to be made by the Trustees are voluntary transactions and in the absence of any clear provision in the Act, the expression 'Sale ' in cl.
(a) only means transfer of property by the trustees for a price and does not include a Court sale in execution of a decree.
[457F G] A suit to enforce a mortgage or a proceeding to enforce a mortgage decree against property belonging to a public trust is not a suit or proceeding in which a question affecting public religious or charitable purpose is involved within the meaning of section 56B of the Act and therefore it is not obligatory upon the court to issue notice to the Charity Commissioner.
[458C D] (ii) An order setting aside a Court sale in execution of a mortgage decree cannot be obtained under 0.
21 r. 89 of the Code of Civil Procedure by merely depositing five per cent of the purchase money for payment to the auction purchaser and persuading the decree holder to abandon the execution proceeding.
[459G H] 456 (iii)A Single Judge of a High Court is ordinarily bound to accept as correct judgments of Courts of coordinate jurisdiction and of Division Benches and of the Full Benches of his Court and of this Court.
Any reference to section 165 of the Evidence Act or the Oath of Office of a High Court judge is irrelevant and will not justify a judge in ignoring the rule relating to the binding nature of precedents.
Jaisri Sahu vs Rajdewan Dubey, ; Lala Shri Bhagwan vs Shri Ram Chand, ; ; Pinjare Karimbhai vs Shukla Hariprasad, ; Haridas vs Ratansey, ; and State 'of Gujarat vs Gordhandas,


judgement:
Appeal No. 21 of 1965.
Appeal by special leave from the judgment and decree dated March 15, 1961 of the Allahabad High Court in Second Appeal No. 2434 of 1960.
N.C. Chatterjee, E. C. Agarwala, Kartar Singh and P.C. Agarwala, for the appellants.
J. P. Goyal and B. P. Jha, for the respondents.
477 The Judgment of the Court was delivered by Shah, J.
Hukam Singh and Sukhram the first appellant in this appeal were two brothers.
Chidda the second appellant, is the son of Sukhram, Hukam Singh, Sukhram and Chidda consti tuted a Hindu joint family and were governed by the Mitakshara Law of the Benares School.
Hukam Singh died in 1952 leaving him surviving his wife Kishan Devi.
On December 15, 1956, Kishan Devi sold a half share in a house and a shop belonging to the joint family, to Gauri Shankar.
Sukhram and his son Chidda then commenced an action in the Court of the Munsif of Ghaziabad for a decree declaring that the sale by Kishan Devi to Gauri Shankar was without consideration, and for an order cancelling the sale deed.
The suit was dismissed by the Court of First Instance, the District Court, Meerut, and the High Court of Allahabad.
In this appeal the only question which falls to be determined is whether the sale deed executed by Kishan Devi was binding upon the coparceners of her husband.
On the death of Hukam Singh in 1952, it is common ground Kishan Devi acquired by virtue of section 3(2) of the Hindu Women 's Right to Property Act 18 of 1937, the same interest in the property of the joint family which Hukam Singh had.
That interest was limited interest known as the 'Hindu, Woman 's estate ': section 3(3) of the Hindu Women 's Right to Property Act, 1937.
The Parliament enacted The 30 of 1956, which by section 14(1) provided that "Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
" The plea raised in the District Court that Kishan Devi was not "possessed" of the property which she sold to Gauri Shankar was rejected, and has not been set up before us.
Clearly therefore, on the express words of section 14(1) of the , Kishan Devi acquired on June 17, 1956, rights of full ownership in the interest which Hukam Singh had in the property of the family during his life time, and she was competent without the consent of the male members of the family to sell the property for her own purposes.
But Mr. Chatterjee for the appellants submits that under the Benares School of the Mitakshara a male coparcener is not entitled to alienate even for value his undivided interest in coparcenary property without the consent of the other coparceners, unless the alienation be for legal necessity, or if the coparcener is the father, for payment by him of his antecedent debts which are not illegal or avvavaharika, and it could not have been intended by Parliament to confer upon a widow in a Hindu family a larger right than the right which the surviving coparceners could exercise at the date of the sale by the widow.
Counsel says that the Parliament by Act 30 478 of 1956 merely intended to confer upon a Hindu widow rights of full ownership in the interest in property in which she had prior to that Act, only a limited interest, but did not intend to destroy the essential character of joint family property so as to invest the widow with power to alienate that interest without the assent of the coparceners of her husband.
It is true that under the Benares school of the Mitakshara a caparcener may not, without the consent of the other coparceners, sell his undivided share in the family estate for his own benefit: Madho Parshad vs Mehrban Singh(1); Balgobind Das vs Narain Lal and Ors.
(2) and Chandradeo.
Singh & Ors.
vs Mata Prasad & Anr.
(3) But the words of section 14 of the are express and explicit; thereby a female Hindu possessed of property whether ac quired before or after the commencement of the Act holds it as full owner and not as a limited owner.
The interest to which Kishan Devi became entitled on the death of her husband under section 3(2) of the Hindu Women 's Right to Property Act, 1937, in the property of the joint family is indisputably her "property" within the meaning of section 14 of Act 30 of 1956, and when she became "full owner" of that property she acquired a right unlimited in point of user and duration and uninhibited in point of disposition.
We are unable to agree with Mr. Chatterjee that restrictions on the right of the male members of a Hindu joint family form the bed rock on which the law relating to joint family property under the Hindu Law is founded.
Under the Law of the Mitakshara as administered in the territory governed by the Maharashtra and the Madras Schools and even in the State of Madhya Pradesh, a Hindu coparcener is competent to alienate for value his undivided interest in the entire joint family property or any specific property without the assent of his coparceners.
A male member of a Hindu family governed by the Benaras School of Hindu Law is undoubtedly subject to restrictions qua alienation of his interest in the joint family property but a widow acquiring an interest in that property by virtue of the is not subject to any such restrictions.
That is however not a ground for importing limitations which the Parliament has not chosen to impose.
On the death of her husband, Kishan Devi became entitled to the same interest which Hukam Singh had in the joint family property of that interest, she became full owner on June 17, 1956, and being full owner she was competent to sell that interest for her own purposes, without the consent of the male coparceners of her husband.
The appeal therefore fails and is dismissed with costs.
R.K.P.S. Appeal dismissed.
(1) L.R. 17 I.A. 194.
(2) L.R. 20 I.A. 116.
(3) I.L.R. 31 All.
176 (F.B.).

summary:
The first appellant, his brother H and his son the second appellant, constituted a Hindu Joint family and were governed by the Mitakshara law of the Benares School.
He died in 1952 leaving him surviving his widow.
On December 15, 1956, the widow sold a half share in a house and a shop belonging to the joint family to the first respondent.
The appellants filed a suit for a decree declaring that the sale by the widow was without consideration and for an order can celling the sale deed.
The suit was dismissed by the Trial Court and, in appeal, by the High Court.
In appeal to this Court it was contended on behalf of the appellants that under the Benares School of the Mitakshara, a male coparcener is not entitled to alienate even for value, his undivided interest in coparcenary property without the consent of the other coparceners except in certain specified cases, and by section 14(1) of the Hindu Succession Act 30 of 1956 it could not have been intended to confer a larger right on the widow of a coparcener.
HELD: On the death of her husband, the widow became entitled to the same interest which H had in the joint family property under s.3(2) of the Hindu Women 's Right to Property Act, 18 of 1937, in the joint family property of that interest, by virtue of s.14(1) of the , she became full owner on June 17, 1956 and being full owner she was competent to sell it for her own purpose without the consent of the male coparceners of her husband.
[477D G] A male member of a Hindu family governed by the.
Benares School of Hindu Law is undoubtedly subject to restrictions qua alienation of his interest in the joint family property.
but a widow acquiring an interest in that property by virtue of the is not subject to any such restrictions.
That is however not a ground for importing limitations which the Parliament has not chosen to impose.
[478F] Madho Parshad vs Mehrban Singh, L.R. 17 I.A. 194; Balgobind Das vs Narain Lal and Ors.
L.R. 20 I.A. 116 and Chandradeo Singh & Ors.
vs Mata Prasad & Anr.
T.L.R. 31 All.
176 (F.B.); referred to.


judgement:
05 of 1953.
Under article 32 of the Constitution of India for the enforcement of Fundamental Rights and APPELLATE JURISDICTION: Case No.1 of 1950 1047 Appeal under section 205 of the Government of India Act, 1935, from the Judgment and Decree, dated the 13th September, 1949, of the High Court of Judicature, Orion, in First Appeal No. 39 of 1949 arising out of the Judgment and Decree, dated the 11th September, 1945, of the Court of the District Judge, Cutback, in Original Suit No. 3 of 1943.
N. C. Chattanooga (B. K. Saran and B. C. Pratt, with him) for the petitioners and appellants Nos. 1 to 13.
section P. Sinclair (B. K. Saran and R. C. Pratt, with him) for appellants 14 to 16.
M. C. Seth (G. N. Jose, with him) for respondents in both the matters.
Agent R. H. Debar.
March 16.
delivered by MUKHERJEA J.
These two connected matters are taken up together for the sake of convenience and may be,disposed of by one and the same judgment.
Petition ;No. 405 of 1953 has been presented to this court under article 32 of the Constitution and the petitioners are the Mahants or superiors of two ancient and well known religiousinstitutions of Orissa, both of which have endowmentsof considerable value situated within and outside the Orissa State.
An Act, known as the .Orissa Hindu Religious Endowments Act was passed by the Orissa Legislative Assembly functioning under the Government of India Act, 1935.
in the vear 1939 and it received the assent of the Governor General on the 31st August, 1939.
The object of the Act, as stated in the preamble, is "to provide for the better administration and governance of certain Hindu religious endowments" and ' the expression "religious endowment" has been defined comprehensively in the Act as meaning all property belongto or given orendowed for the support of Maths or temples or for the performance of any service orcharity connected therewith.
The whole scheme of the Act is to vest the control and supervision of public temples and Maths in a statutory authority designated as the Commis.
sioner of Hindu Religious Endowments and to confer 1048 upon him certain powers with a view to enable him to exercise effective control over the trustees of the Maths and the temples.
The Commissioner is required to be a member of the Judicial or Executive Service of the Province and his actions are subject to the general control of the provincial Government.
For the purpose, of meeting the expenses of the Commissioner and his staff, every Math or temple, the annual income of which exceeds Rs. 250, is required under section 49 of the Act to pay an annual contribution at certain percentage of the annual income which increases I progressively with the increase in the income.
With this contribution as well as loans and grants made by the Government, a special fund is to be constituted as provided by section 50 and the expenses of administering the religious endowments are to be met out of this fund.
In July, 1940, a suit, out of "which the Case No. 1 of 1950 arises, was instituted in the court of the District Judge of Cuttack by a number.
of Mahants including .the two petitioners in the petition under article 32 before us.
praying for a declaration that the Orissa Relig ious Endowments Act of 1939 was ultra vires the Orissa Legislature and for other consequential reliefs.
The validity of the Act was challenged substantially on three grounds, namely, (1) that the subject matter of legislation was not covered by Entry 34 of List 11 in Schedule VII of the Government of India Act, 1935 ; (ii) that the, contribution levied under, section 49 was, in substance, a tax and could not have been imposed by the Provincial Legislature; and (iii) that as the provisions of the Act affected the income of properties situated outside the territorial limits of the Province, the Act was extra territorial in its operation and hence inoperative.
All these contentions were overruled by, the District Judge of Cuttack, who by his judgment dated the 11 th September, 1945, dismissed the plaintiffs ' suit.
Against that decision, an appeal was taken by the plaiitiffs to the High Court of Orissa and the appeal was heard by a Division Bench, consisting of Jagannedbadas and Narasimham JJ.
The learned Judges by two separate but concurring judgments, dated the 13th September.
1949, affirmed the decision 1049 of the District Judge and dismissed the appeal.
it is against this judgment that Case No. 1 of 1950 has come to this court.
During the pendency of the appeal in this court the Constitution came into force on the 26th January , 1950, with its chapter on fundamental rights, and the Orissa Hindu Religious Endowments Act also has been amended recently by the State Legislature of Orissa by Amending Act II of 1952.
In view of these changes, the present application under article 32 of the Constitution has been filed by two of the Mahants who figured as plaintiffs in the Declaratory Suit of 1940 and the application has been framed comprehensively so as to include all points that could be urged against the validity of the Orissa Hindu Religious Endowments Act on the basis of the provisions of the Constitution.
It is conceded by both the parties that in these circumstances it is not necessary for us to deal separately with the appeal.
The decision, which we would arrive at in the petition under article 32, will be our pronouncement on the validity or otherwise of the different provisions of the impugned Act.
It may be stated at the beginning that the Orissa Hindu Religious Endowments Act of 1939 follows closely the pattern of the Madras Hindu Religious Endowments Act of 1927 which has been now replaced by a later Act passed by the State Legislature of Madras in 1951 and described as the Madras Hindu Religious and Charitable Endowments Act.
The grounds upon which the validity of the Orissa Act has been attacked be fore us are substantially the same as were urged in assailing the constitutional validity of the Madras Act, in Civil Appeal No. 38 of 1953 (The Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar), the judgment in which has just been delivered.
The grounds urged can be classified conveniently under two heads.
In the first place, some of the provisions of the impugned Act have been challenged as invalid on the ground that they invade the fundamental rights of the petitioners guaranteed under articles 19(1) (f), 25 26, and, 27 of the Constitution.
The other branch of the contention (1) ; 1050 relates to. the provision for levying contribution on religious institutions under section 49 of the Act and this provision has been impeached firstly on the ground that the contribution being in substance a tax, it was beyond the competency of the Provincial Legislature to enact any such provision.
The other ground raised is, that the payment of such tax or imposition is prohibited by article 27 of the Constitution.
The general questions relating to the scope and ambit of the fundamental rights embodied in articles 19 (1) (f ), 25, 26 and 27 of the Constitution in connection with Maths and temples have been discussed fully in our judgment in the Madras appeal referred to above and ,it would not, be necessary to reiterate these discussions for purposes of the present case.
We can straightaway proceed to examine the different provisions of the Act to which objections have been taken by the learned counsel appearing for, the petitioners in the light of the principles which this court has laid down in the Madras appeal.
It may be said that many of the impugned provisions of the Orissa Act correspond more or less.
to similar provisions in the Madras Act.
Section 11 of the Act has been objected to on the ground that it vests almost , an uncontrolled and arbitrary power upon the Commissioner.
This section corresponds to section 20 of the Madras Act and as has been pointed out in our Judgment, in the Madras appeal, the powers, though seemingly wide, can be exercised only to ensure that Maths and temples are properly maintained and the endowments are properly administered.
As the object and purpose for which these powers could be exercised have been indicated preoisely we do not think that it, could be said that the authority vested in the Commissioner is in any way arbitrary.or unrestricted.
The explanation attached to the section only makes it clear that the general power conferred upon the Commissioner extends to passing of interim orders as the Commissioner might think fit.
Section 14 lays down the duties of the trustee and the care which he should exercise in the management 1051 of the affairs of the religious institutions.
The care, which he has to exercise, is What is demanded normally of every trustee in charge of trust estate and the standard is that of a man of ordinary prudence dealing with his own funds or properties.
This is a matter relating to the administration of the estate and and does not interfere with any fundamental rights of the trustee.
For the same reason, we think, no objection could be taken to the provision of section 28 which lays down that the trustee of a temple shall be bound to obey all orders issued under the provisions of the Act by the Commissioner. if the orders are lawful and made in pursuance of authority properly vested in the officer, no legitimate ground could be urged for not complying with the orders.
The sections of the Act, to which serious objections have been taken are sections 38, 39, 46, 47 and 49.
Sections 38 and 39 relate to the framing of a scheme.
A scheme can certainly be settled to ensure due administration of the endowed property but the objection seems to be that the Act provides, for the framing.
of a scheme not by a civil Court or under its supervision but by the Commissioner who is a mete administrative or executive officer.
There is also no provision for appeal against his order to the court.
Under section 58 of the Madras Act, although the scheme is to be framed by the Deputy Commissioner, an appeal lies against his order to the Commissioner in the first place.
A party aggrieved by the order of the Commissioner again has a right of suit in the ordinary civil court, with a further right of appeal to the High Court.
It seems that sub section (4) of section 39 of the impugned Act, as it originally stood, allowed the, trustee or any person having an interest in the institution to file a suit in a civil court to modify or set aside an order framing a scheme; and under section 40, the order made under section 39 could be final only subject to the result of such suit.
Subsection (4) of section 39, however, was deleted by the Amending Act of 1952, and under the new sub section (4), the order passed by the Commissioner has been made final and conclusive.
Strangely, however, section 41 of the Act has still been retained in its 1052 original shape and that speaks of an order settling a scheme being set aside or modified by the court.
Obviously, this is careless drafting and the Legislature did not seem to have adverted to the apparently contradictory provisions that it made.
The learned Attorney General, appearing for the State of, Orissa, has also conceded that these sections require redrafting.
We think that the settling of a scheme in regard to a religious institution by an executive officer without the intervention of any judicial tribunal amounts to an unreasonable restriction upon the right of property of the superior of the religious institution which is blended with his office.
Sections 38 and 39 of the Act must, therefore, be held to be invalid.
There is nothing wrong in the provision of section 46 itself but legitimate exception, we think, can be taken to the proviso appended to the section.
Under the law, as it stands, the Mahant or the superior of a Math has very wide powers of disposal over the surplus income and the only restriction that is recognised is that he cannot spend the income for his own personal use unconnected with the dignity of his office.
The purposes specified in section 46 are all conducive to the benefit of the institution and there is no reason why the discretion of the trustee in regard to the spending of surplus for such purposes also should be still further restricted by directions which the Commissioner may choose to issue.
Section 47 (1) lays down how the rule of cy pres is to be applied not merely when the orginal purpose of the trust fails or becomes incapable of being carried out either in whole or in part by reason of subsequent events, but also where there is a surplus left after meeting the legitimate expenses of the institution.
Objection apparently could be raised against the last provision of the sub section, but as subsection(4) of section47gives the party aggrieved by any order of the Commissioner in this respect to file a suit in a civil court and the court is empowered to modify or set aside such order of the Commissioner, we do not ,think that there is any reasonable ground for complaint.
The only other section that requires consideration is sect ion 49 under which every Math or temple having 1053 an annual income exceeding Rs. 250 has got to make an annual contribution for meeting the expenses of the Commissioner and the officers and servants working under him.
The first question that arises with regard to this provision is whether the imposition is a tax or a fee; and it is not disputed that if it is a tax, the Provincial Legislature would have no authority to enact such a provision.
This question has been elaborately discussed in our judgment in the Madras appeal referred to above and it is not necessary to repeat the discussions over again.
As has been pointed out in the Madras appeal, there is no generic difference between a tax and a fee and both are different forms in which the taxing power of a State manifests itself.
Our Constitution, however, has made a distinction between a tax and a fee for legislative purposes and while there are various entries in the three lists with regard to various forms of taxation, there is an entry at the end of each one of these lists as regards fees which could be levied in respect of every one of the matters that are included therein.
A tax is undoubtedly in the nature of a complusory exaction of money by a public authority for public purposes, the payment of which is enforced by law.
But the essential thing in a tax is that the imposition is made for public purposes to meet the general expenses of the State without reference to any special benefit to be conferred upon the payers of the tax.
The taxes collected are all merged in the general revenue of the State to be applied for general public purposes.
Thus, tax is a common burden and the only return which the taxpayer gets is the participation in the common benefits of the State.
Fees, on the other hand, are payments primarily in the public interest but for some special service rendered or some special work done for the benefit of those from whom payments are demanded.
Thus in fees there is always an element of quid pro quo which is absent in a tax.
Two elements are thus essential in order that a payment may be regarded as a fee.
It the first place,, it must be levied in consideration of certain services which the individuals accepted either willingly or unwillingly.
But this by itself is not enough to make 136 1054 the imposition a fee, if the payments demanded for rendering of such services are not set apart or specifically appropriated for that purpose but are merged in the general revenue of the State.to be spent for general public purposes.
Judged by this test, the contribution that is levied by section 49 of the Orissa Act will have to be regarded as a fee and not a tax.
The payment is demanded only for the purpose of meeting the expenses of the Commissioner and his office which is the machinery set up for due administration of the affairs of the religious institution.
The collections made are not merged in the general public revenue and are not appropriated in the manner laid down for appropriation of expenses for other public purposes.
They go to constitute the fund which is contemplated by section 50 of the Act and this fund, to which also the Provincial Government contributes both by way of loan and grant, is specifically set apart for the render ing of services involved in carrying out the provisions of the Act.
We think, therefore, that according to the Principles which this court has enunciated in the Madras appeal mentioned above, the contribution could legitimately be regarded as fees and hence it was within the competence of the Provincial Legislature to enact this provision.
The fact that the amount of levy is graded according to the capacity of the payers though it gives it the appearance of an income tax, is not by any means a decisive test.
We are further of opinion that an imposition like this cannot be said to be hit by article 27 of the Constitution.
What is forbidden by article 27 is the specific appropriation of the proceeds of any tax in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.
The object of the contribution under section 49 is not the fostering or preservation of the Hindu religion or of any denomination within it; the purpose is to see that religious trusts and institutions wherever they exist are properly administered.
It is the secular administration of the religious institutions that the Legislature seeks to control and the object, as enunciated in the Act, is to ensure that the endowments attached to the religious institutions are properly administered and their income is duly appropriated for purposes for which they were founded or exist.
As there is no question of favouring any particular religion or religious denomination, article 27 could not possibly apply.
The result is that, in our opinion, the only sections of the Act, which are invalid, are sections 38, 39 and the proviso to section 46.
The application under article 32 is, therefore, allowed to this extent that a writ in the nature of mandamus would issue restraining the Commisoner and the State Government enforcing against the petitioners the provisions of the sections mentioned above.
The other prayers of the petitioners are disallowed.
No separate order is necessary in Case No. I of 1950, which will stand dismissed.
We make no order as to costs either in the petition or in the appeal.

summary:
Held, that sections 38 and 39 and the proviso to section 46 of the Orissa Hindu Religious: Endowments Act, 1939 as amended by the Amending Act II of 1952 are ultra vires articles 19(1) (f), 25 and 26 of the Constitution.
The annual contribution provided in section 49 of the Act is in the nature of a fee and not a tax and therefore it was within the competence of the Provincial Legislature to enact such a provision.
Further an imposition like this is not hit by article 27 of the Constitution because the object of the contribution under section 49 is not the fostering or preservation of the Hindu religion or of any denomination within it but the proper administration of religious trusts and institutions wherever they exist.
Civil Appeal No. 38 of 1953 referred to.