judgement:
Civil Appeal No. 1 of 1954, and Civil Appeal No. 7 of 1954.
Appeals under article 132(1) of the Constitution of India from the Judgment and Order dated the 12th September, 1952, of the High Court of Judicature at Bombay in Civil Application No. 880 of 1952 and Miscellaneous Application No. 212 of 1952 respectively.
N.C. Chatterjee and U. M. Trivedi (H. H. Dalal and I. N. Shroff with them) for the appellants in Appeal No., I of 1954.
Rajinder Narain for the appellants in Civil Appeal.
No. 7 of 1954.
M. C. Setalvad and C.K. Daphtary (G. N. Joshi and Porus A. Mehta, with them) for the respondents in both the appeals.
Mach 18.
The Judgment of the Court was delivered by MUKHERJEA J.
These two connected appeals are directed against a common judgment of a division Bench of the Bombay High Court, dated the 12th of September, 1952, by which the learned Judges dismissed two petitions under article 226 of the Constitution presented respectively by the appellants in the two appeals.
1057 The petitioners in both the cases assailed the consti tutional validity of the Act, known as the Bombay Public Trusts Act, 1950 (Act XXIX of 1950), which was passed by the Bombay Legislature with a view to regulate and make better provisions for the administration of the public and religious trusts in the State of Bombay.
By a notification, dated the 30th of January, 1951, the Act was brought into force on and from the 1st of March, 1951, and its provisions were made applicable to temples, maths and all other trusts, express or constructive, for either a public, religious or charitable purpose or both.
The State of Bombay figures as the first respondent in both the appeals and the second respondent is the Charity Commissioner, appointed by the first respondent under section 3 of the impugned Act to carry out the provisions of the Act throughout the State of Bombay.
In one of the appeals, namely, Appeal No. 1 of 1954, the Assistant Charity Commissioner for the region of Baroda has been impleaded as the third respondent.
The appellant in Appeal No. I of 1954 is a Swetamber Murtipujak Jain and a resident of Vejalpar in the district of Punchmahals within the State of Bombay.
He is a Vahivatdar or manager of a Jain public temple or Derasar situated in the same village and the endowed properties appertaining to the temple are said to be of the value of Rs. 5 lakhs.
The petition, out of which this appeal arises, was filed by the appellant on the 29th of May, 1952, before the High Court of Bombay, in its Appellate Side, against the three respondents mentioned above, praying for the issue of a writ in the nature of mandamus or direction ordering and directing the respondents to forbear from enforcing or taking any steps for the enforcement of the Bombay Public Trusts Act, 1950,,or of any of its provisions and parti cularly the provisions relating to registration of public and religious trusts managed by the appellant and payment of contributions levied in respect the same.
The grounds urged in support of the petition were that a number of provisions of the Act convicted with the fundamental rights of the petitioner guaranteed under articles 25 and 26 of the Constitution and that the 1058 contribution levied on the trust was a tax which it was beyond the competence of the State Legislature to impose.
A similar application under article 226 of the Consti tution and Praying for almost the identical relief was filed by the appellants, in the other appeal, namely, Appeal No. 7 of 1954 before the High Court in its Original Side on the 4th of August, 1952.
The petitioners in this case purport to be the present trustees of the Parsi Punchayet Funds and Properties in Bombay registered under the Parsi Public Trusts Registration Act of 1936.
These properties constitute one consolidated fund and they are administered by the trustees for the benefit of the entire Parsi community and the income is spent for specified religious and charitable purposes of a public character as indicated by the various donors.
The petitioners, challenged the validity of the Bombay Public Trusts Act, 1950, substantially on the grounds that they interfered with the freedom of conscience of the petitioners and with their right freely to profess, practise and propagate religion and also with their right to manage their own affairs in matters of religion and thereby contravened the provisions of articles 25 and 26 of the Constitution.
The levy of contribution under section 58 of the Act was also alleged in substance and effect to be a tax on public, religious and charitable trusts, a legislation upon which it was beyond the competency of the State Legislature to enact.
As practically the same questions were involved in both the petitions, the learned Chief Justice of Bombay directed the transfer of the later petition from the Original Side to the Appellate Side of the High Court and both of them were heard together by a Division Bench consisting of the Chief Justice himself and Shah J.
Both the petitions were disposed of by one and the same judgment delivered on the 12th of September, 1952, and the learned Judges rejected all the contentions put forward on behalf of the respective applicants and dismissed the petitions.
The petitioners in both the cases have now come before us in appeal on the strength of certificates granted 1059 by the High Court under article 132(1) of the Constitution.
To appreciate the points that have been canvassed before us by the parties to these appeals, it may be convenient to refer briefly to the scheme and salient features of the impugned Act.
The object of the Act, as stated in the preamble, is to regulate and make better provisions for the administration of public, religious and charitable trusts within the State of Bombay.
It includes, within its scope, all public trusts created not merely for religious but for purely charitable purposes as well and extends to people of all classes and denominations in the State.
The power of superintendence and administration of public trusts is vested, under the Act, in the Charity Commissioner, who is to be appointed by the State Government in the manner laid down in Chapter II.
The State Government may also appoint such number of Deputy and Assistant Charity Commissioners as.
it thinks fit and these officers would be placed in charge of particular regions or particular trusts or classes of trusts as may be considered necessary.
Section 9, with which Chapter III of the Act beigins, defines what 'charitable purposes ' are, and sections 10 and 11 lay down that a public trust shall not be void on the ground of uncertainty, nor shall it fail so far as a religious and charitable purpose is concerned, even if a non charitable or non religious purpose, which is includ ed in it,.
cannot be given effect to.
Chapter IV provides for registration of public trusts.
Section 18 makes it obligatory upon the trustee of every public trust to which the Act applies, to make an application for the registration of the trust, of which he is the trustee.
In case of omission on the part of a trustee to comply with this provision, he is debarred under section 31 of the Act from instituting a suit to enforce any right on behalf of such trust in a court of law.
Chapter V deals with accounts and audit.
Section 32 imposes a duty upon every trustee of a public trust, which has been registered under the Act, to keep regular accounts.
Under section 33, these accounts are to be audited annually, in such manner as may be prescribed.
1060 Section 34 proscribes it to be the duty of the auditor to prepare balance sheets and to report all irregularities in the accounts.
Section 35 lays down how trust money has to be invested, and section 36 prohibits alienation of immovable trust property except by way of leases for specified periods, Without the previous sanction of the Charity Commissioner.
Section 37 authorises the Charity Commissioner and his subordinate officers to enter on and inspect or cause to be entered on and inspected any property belonging to a public trust.
A proviso is added to the section laying down that in entering upon any such property, the officers making the entry shall give reasonable notice to the trustee and shall have due regard to the religious practices and usages of the trust.
Among other powers and functions of the Charity Commissioner, which are detailed in Chapter VII, section 44 enables a Charity Commissioner to be appointed to act as a trustee of a public trust by a court of competent jurisdiction or by the author of the trust.
Section 47 deals with the powers of the court to appoint new trustee or trustees and under clause (3) of this section, the court, after making enquiry, may appoint the Charity Commissioner or any other person as a trustee to fill up the vacancy.
Section 48 provides for the levy of administrative charges in cases where the Charity Commissioner is appointed a trustee.
Section 50 appears to be a substitute for section 92 of the Civil Procedure Code and contains provisions of almost the same character in respect to suits regarding public trusts.
One of the reliefs that can be claimed in such a suit is a declaration as to what proportion of the trust property or interest therein shall be allocated to any particular object of the trust.
Section 55 purports to lay down the rule of cy pres in relation to the administration of religious and charitable trusts; but it extends that doctrine much further than is warranted by the principles laid down by the Chancery Courts in England or recognised by judicial pronouncements in this country.
Section 56 deals with the powers of the courts in relation to the application of the cy pres doctrine.
Section 57 provides for the establishment of a fund to be called "The 1061 Public Trusts Administration Fund which shall vest in the Charity Commissioner and clause (2) lays down what sums shall be credited to this fund.
Section 58 makes it obligatory on every public trust to pay to this fund a contribution at such time and in such manner as may be Prescribed.
Under the, rules prescribed by the Government on this subject, the contribution has been fixed at the rate of 2 per cent.
per annum upon the gross annual income of every public trust.
Failure .to pay this contribution will make the trustee liable to the penalties provided for in section 66 of the Act.
Section 60 provides that the Public Trusts Administration Fund shall, subject to the provisions of the Act and subject to the general and special orders of the State Government, be applicable to the.
payment of charges for expenses incidental to the regulation of public trusts and generally for carrying out the provisions of the Act.
Sections 62 to 66, which are comprised in Chapter IX of the Act, deal with the appointment and qualifications of assessors.
The function of the assessors is to assist and advise the Charity Commissioner or his subordinate officers in the matter of making enquiries which may be necessary under the provisions of the Act.
Chapter X prescribes the penalties that will be inflicted on trustees in case of their violating any of the pro visions of the Act.
Chapter XI deals with procedural matters in connection with jurisdiction of courts and rights of appeal, and the twelfth or the last chapter deals with certain miscellaneous matters.
These, in brief, are the provisions of the Act which are material for our present purpose.
The contentions that have been raised by the learned counsel, who appeared in support of the appeals, may be considered under two heads.
In the first place, a number of provisions of the Act have been challenged as invalid on the ground that they conflict with freedom of religion and the right of the religious denominations or sects, represented by the appellants in each case, to manage their own, affairs in matter of religion guaranteed under articles 25 and 26 of the Constitution.
The sections of the Act, the validity of which has been challenged on this ground are sections 18, 31 to 37, 44, 1062 47, 48 50, clauses (e) and (g), 55, 58 and 66.
The second head of the appellants argument relates to the levy of contribution as laid down in sections 57 and 58 of the Act and the argument is that this being in substance the levy of a tax, it was beyond the competence of the State Legislature to enact such a provision.
As regards the first branch of the contention, a good deal of argument has been advanced before us relating to the measure and extent of the fundamental rights guaranteed under articles 25 and 26 of the Constitution.
It will be necessary to address ourselves to this question at the outset, because without a clear appreciation of the scope and am bit of the fundamental rights embodied in the two articles of the Constitution, it would not be possible to decide whether there has been a transgression of these rights by any of the provisions of the Act.
This identical question came up for consideration before this court in Civil Appeal No. 38 of 1953 (The commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Tirtha Swamiar(1) and it was discussed at some length in our judgment in that case.
It will be sufficient for our present purpose to refer succinctly to the main principles that this court enunciated in that judgment.
Article 25 of the Constitution guarantees to every person and not merely to the citizens of India the freedom of conscience and the right freely to profess practise and propagate religion.
This is subject, in every case, to public order, health and morality.
Further exceptions are engrafted upon this right by clause (2) of the article.
Sub clause (a) of clause (2) saves the power of the State to make laws regulating or restricting any economic financial, political or other secular activity which may be associated with religious practice; and sub clause (b) reserves the State 's power to make laws providing for social reform and social welfare even though they might interfere with religious practices.
Thus, subject to the restrictions which this article imposes, every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such (1) ; 1063 overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others.
It is immaterial also whether the propagation is made by a person in his individual capacity or on behalf of any church or institution.
The free exercise of religion by which is meant the performance of outward acts in pursuance of religious belief, is, as stated above, subject to State regulation imposed to secure order, public health and morals of the people.
What sub clause (a) of clause (2) of article 25 contemplates is not State regulation of the religious practices as such which are protected unless they run counter to public health or morality but of activities which are really of an economic, commercial or political character though they are associated with religious practices.
So far as article 26 is concerned, it deals with a particular aspect of the subject of religious freedom.
Under this article, any religious denomination or a section of it has the guaranteed right to establish and maintain institutions for religious and charitable purposes and to manage in its own way all affairs in matters of religion.
Rights are also given to such denomination or a section of it to acquire and own movable and immovable properties and to administer such properties in accordance with law.
The language of the two clauses (b) and (d) of article 26 would at once bring out the difference between the two.
In regard to affairs in matters of religion, the right of management given to a religious body is a guaranteed fundamental right which no legislation can take away.
On the other hand, as regards administration of property which a religious denomination is entitled to own and acquire, it has undoubtedly the right to administer such property but only in accordance with law.
This means that the State can regulate the administration of trust properties by means of laws validly enacted but here again it should be remembered that under article 26 (d), it is the religious denomination itself which has been given the right to administer its pro perty in accordance with any law which the State may validly impose.
A law, which takes away the right of 138 1064 administration altogether from the religious denomination and vests it in any other or secular authority, would amount to violation of the right which is guaranteed by article 26 (d) of the Constitution.
The moot point for consideration, therefore, is where is the line to be drawn between what are matters of religion and what are not ? Our Constitution makers have made no attempt to define what 'religion ' is and it is certainly not possible to frame an exhaustive definition of the word 'religion ' which would be applicable to all classes of persons.
As has been indicated in the Madras case referred to above, the definition of religion given by Fields J. in the American case of Davis vs Beason(1), does not seem to us adequate or precise.
"The term 'religion" ', thus observed the learned Judge in the case mentioned above, "has refer ence to one 's views of his relations to his Creator and to the obligations they impose of reverence for His Being and character and of obedience to His Will.
It is often confounded with cultus or form of worship of a particular sect, but is distinguishable from the latter".
it may be noted that 'religion ' is not necessarily theistic and in fact there are well known religions in India like Buddhism and Jainism which do nor believe in the existence of God or of any Intelligent First Cause.
A religion undoubtedly has its basis in a system of beliefs and doctrines which are regarded by those who profess that religion to be conducive to their spiritual well being, but it would not be correct to say, as seems to have been suggested by one of the learned Judges of the Bombay High Court, that matters of religion are nothing but matters of religious faith and religious belief.
A religion is not merely an opinion, doctrine or belief.
It has its outward expression in acts as well.
We may quote in this connection the observations of Latham C. J. of the High Court of Australia in the case of Adelaide Company vs The Commonwealth(2), where the extent of protection given to religious freedom by section 116 of the Australian Constitution came up for consideration.
(1)133 U.S. 33 (2) ; , 124.
1065 "It is sometimes suggested in discussions on the subject of freedom of religion.
that, though the civil Government should not interfere with religious opinions, it nevertheless may deal as it pleases with any acts which are done in pursuance of religious belief without infringing the principle of freedom of religion.
It appears to me to be difficult to maintain this distinction as relevant to the interpretation of section 116.
The section refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion.
Thus the section goes far beyond protecting liberty of opinion.
It protects also acts done in pursuance of religious belief as part of religion.
, In our opinion, as we have already said in the Madras case, these observations apply fully to the provision regarding religious freedom that is embodied in our Constitution.
Religious practices or performances of acts, in pursuance of religious belief are as much apart of religion as faith or belief in particular doctrines.
Thus if the tenets of the Jain or the Parsi religion lay down that certain rites and ceremonies are to be performed at certain times and in a particular manner, it cannot be said that these are secular activities partaking of commercial or economic character simply because the involve expenditure of money or employment of priests or the use of marketable commodities.
No outside authority has any right to say that these are not essential parts of religion and it.
is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate.
Of course, the scale of expenses to, be incurred in connection with these religious observances may be and is a matter of administration of property belonging to religious institutions; and if the expenses on these heads are likely to deplete the endowed properties or affect the stability of the institution,, proper control can certainly be exercised by State agencies as the law provides.
We may refer in this connection to the observation of 1066 Davar J. in the case of Jamshedji vs Soonabai(1), and although they were made in a case where the question was whether the bequest of property by a Parsi testator for the purpose of perpetual celebration of ceremonies like Muktad baj, Vyezashni, etc., which are sanctioned by the Zoroastrian religion were valid charitable gifts, the observations, we think, are quite appropriate for our present purpose.
"If this is the belief of the community" thus observed the learned Judge, "and it is proved undoubtedly to be the belief of the Zoroastrian community, a secular Judge is bound to accept that belief it is not for him to sit in judument on that belief, he has no right to interfere with the conscience of a donor who makes a gift in favour of what he believes to be the advancement of his religion and the ,Welfare of his community or mankind".
These observations do, in our opinion, afford an indication of the measure of protection that is given by article 26(b) of our Constitution.
The distinction between matters of religion and those of secular administration of religious properties may, at times, appear to be a thin one.
But in cases of doubt, as Chief Justice Latham pointed out in the case(2) referred to above, the court should take a common sense view and be actuated by considerations of practical necessity.
It is in the light of these principles that we will proceed to examine the different provisions of the Bombay Public Trusts Act, the validity of which has been challenged on behalf of the appellants.
We will first turn to the provisions of the Act which relate to registration of trusts.
Under section 18, it is incumbent on the trustee of every public, religious or charitable trust to get the same registered.
Section 66 of the Act makes it an offence for a trustee not to comply with this provision and prescribes punishment for such offence.
Section 31 provides for further compulsion by laying down that no suit shall lie on behalf of a public trust to enforce its right in any court of law unless the trust is registered.
A compulsory payment (1) (2) Vide Adelaide Company vs The commonwealth, 67 C.L.R. 116, i29. 1067 of a fee of Rs. 25 has also been prescribed by the rules framed by the Government for registration of a trust.
The provisions of registration undoubtedly have been made with a view to ensure due supervision of the trust properties and the exercise of proper control over them.
These are matters relating to administration of trust property as contemplated by article 26(d) of the Constitution and cannot, by any stretch of imagination be held to be an attempt at interference with the rights of religious institutions to manage their religious affairs.
The fees leviable under section 18 are credited to the Public Trust Administration Fund constituted under section 57 and are to be spent for meeting the charges incurred in the regulation of public trusts and for carrying into effect the provisions of the Act.
The penalties provided are mere consequential provisions and involve no infraction of any fundamental right.
It has been argued by the learned counsel for the appellants that according to the tenets of the Jain religion the property of the temple and its income exist for one purpose only, viz., the religious purpose, and a direction to spend money for purposes other than those which are considered sacred in the Jain scriptures would constitute interference with the freedom of religion.
This contention does not appear to us to be sound.
These expenses are incidental to proper management and administration of the trust estate like payment of municipal rates and taxes, etc., and cannot amount to diversion of trust property for purposes other than those which are prescribed by any religion.
The next group of sections to which objections have been taken comprises sections 32 to 37.
Section 32 compels a trustee of a public trust to keep accounts in such form as may be prescribed by the Charity Commissioner.
Section 33 provides for the auditing of such accounts and section 34 makes it the duty of the auditor to prepare balance sheets and to report irregularities, if any, that are found in the accounts.
These are certainly not matters of religion and the objection raised with regard to the validity of these provisions seem to be altogether baseless Section 35 relates to investment of money belonging to trusts.
It is a well 1068 settled principle of law that trustees in charge of trust properties should not keep cash money in their hands which are not necessary for immediate expenses; and a list of approved securities upon which trust money could be invested is invariably laid down in every legislation on the subject of trust.
There is nothing wrong in section 36 of the Act.
Immovable trust properties are inalienable by their very nature and a provision that they could be alienated only with the previous sanction of the Charity Commissioner seems to us to be a perfectly salutary provision.
Section 37 has been objected to on the ground that an unrestricted right of entry in any religious premises might offend the sentiments of the followers of that religion; but the section has expressly provided that the officers making the entry shall give reasonable notice of their intended entry to the trustees and shall have due regard to the religious practice and usages of the trust.
Objection has next been taken to sections 44 and 47 of the Act.
Section 44 lays down that the Charity Commissioner can be appointed to act as trustee of a public trust by a court of competent jurisdiction or by the author of the trust.
If the author of the trust chooses to appoint the Charity Commissioner a trustee, no objection can possibly be taken to such action; but if the court is authorised to make such appointment, the provisions of this section in the general form as it stands appear to us to be open to serious objection.
If we take for example the case of a religious institution like a Math at the head of which stands the Mathadhipati or spiritual superior.
The Mathadhipati is a trustee according to the provisions of the.
Act and if the court is competent to appoint the Charity Commissioner as a superior of a Math,.
the result would be disastrous and it would amount to a flagrant violation of the constitutional guarantee which religions institutions have under the@ Constitution in regard to the management of its religious affairs.
This is not a secular affair at all relating to the administration of the trust property.
The very object of a Math is to maintain a competent line of religious teachers for propagating and strengthening the religious 1069 doctrines of a particular order or sect and as there could be no Math without a Mathadhipati as its spiritual head, the substitution of the Charity Commissioner for the superior would mean a destruction of the institution altogether.
The evil is further aggravated by the provision of clause (4) of the section which says that the Charity Commissioner shall be the sole trustee and it shall not be lawful to appoint him as a truste along with other persons.
In our opinion, the provision of section 44 relating to the appointment of the Charity Commissioner as a trustee of any public trust by the court without any reservation in regard to religious institutions like temples and Maths is unconstitutional and must be held to be void.
The very same objections will apply to the provisions of clauses (3) to (6) of section 47.
The court can certainly be empowered to appoint a trustee to fill up a vacancy caused by any of the reasons mentioned in section 47(1), and it is quite a salutary principle that in making the appointment the court should have regard to matters specified in clause (4) of section 47 ; but the provision of clause (3) to the extent that it authorises the court to appoint .the
Charity Commissioner as the trustee and who according to the provisions of clause (5) is to be the sole trustee cannot be regarded as valid in regard to religious institutions of the type we have just indicated.
To allow the Charity Commissioner to function as the Shebait of a temple or the superior of a Math would certainly amount to interference with the religious affairs of this institution.
We hold accordingly that the provisions of clauses (3) to (6) of section 47 to the extent that they relate to the appointment of the Charity Commissioner as a trustee of a religious trust like temple and Math, are invalid.
If these provisions of section 47 are eliminated, no objection can be taken to the provision of section 48 as it stands.
This section will in that event be confined only to cases where the Charity Commissioner has been appointed a trustee by the author of the trust himself and the administrative charges provided by this section can certainly be levied on the trust.
1070 We now come to section 50 and exception has been taken to clauses (e) and (g) of that section.
It is difficult to see how these provisions can at all be objected to.
Section 50, as has been said above, is really a substitute for section 92 of the Civil Procedure Code and relates to suits in connection with public trusts Clause (e) of section 50 is an exact reproduction of clause (e) of section 92 of the Civil Procedure Code and clause (g) also reproduces substantially the provision of clause (g) of section 92 of the Civil Procedure Code.
There is no question of infraction of any fundamental right by reason of these provisions.
A more serious objection has been taken by the learned counsel for the appellants to the provisions of sections 55 and 56 of the impugned Act and it appears to us that the objections are to a great extent well founded.
These sections purport to lay down how the doctrine of cy pres is to be applied in regard to the administration of public trust of a religious or charitable character.
The doctrine of cy pres as developed by the Equity Courts in England, has been adopted by out Indian courts since a long time past.
The provisions of sections 55 and 56, however, have extended the doctrine much beyond its recognised limits and have further ,introduced certain principles which run counter to well established rules of law regarding the administration of charitable trusts.
When the particular purpose for which a charitable trust is created fails or by reason of certain circumstances the trust cannot be carried into effect either in whole or in part, or where there is a surplus left after exhausting the purposes specified by the settlor, the court would not, when there is a general charitable intention expressed by the settlor, allow the trust to fail but would execute it cy pres, that is to say, in some way as nearly as possible to that which the author of the trust intended.
In such cases, it cannot be disputed that the court can frame a scheme and give suitable directions regarding the objects upon which the trust money can be spent.
It is we 11 established, however, that where the donors intention can be given effect to, the court has no authority to sanction any deviation from the intentions expressed 1071 by the settlor on the grounds of expediency and the court cannot exercise the power of applying the trust property or its income to other purposes simply because it considers them to be more expedient or more beneficial than what the settlor had directed(1).
But this is exactly what has been done by the provision of section 55(c) read with section 56 of the Act.
These provisions allow a diversion of property belonging to a public trust or the income thereof to objects other than those intended by the donors if the Charity Commissioner is of opinion, and the court confirms its opinion and decides, that carrying out wholly or partially the original intentions of the author of the trust or the object for which the trust was created is not wholly or partially expedient, practicable, desirable or necessary; and that the property or income of the public trust or any portion thereof should be applied to any other charitable or religious object.
Whether a provision like this is reasonable or not is not pertinent to our enquiry and we may assume that the legislature, which is competent to legislate on the subject of charitable and religious trust, is at liberty to make any provision which may not be in consonance with the existing law; but the question before us is, whether such provision invades any fundamental right guaranteed by our Constitution, and we have no hesitation in holding that it does so in the case of religious trusts.
A religious sect or denomination has the undoubted right guaranteed by the Constitution to manage its own affairs in matters of religion and this includes the right to spend the trust property or its income for the religious purposes and objects indicated by the founder of the trust or established by usage obtaining in a particular institution.
To divert the trust property or funds for purposes which the Charity Commissioner or the court considers expedient or proper, although the original objects of the founder can still be carried out, is to our minds an unwarrantable encroachment on the freedom of religious institutions in regard to the management of their religious affairs.
It is perfectly true, as has been stated (1) Vide Halsbury, 2nd Edn., VOl.
IV, P. 228, 139 1072 by the learned counsel for the appellants, that it is an established maxim of the Jain religion that Divadraya or religious property cannot be diverted to purposes other than those which are considered sacred in the Jain scriptures.
But apart from the tenets of the Jain religion, we consider it to be a violation of the freedom of religion and of the right which a religious denomination has under our Constitution to manage its own affairs in matters of religion, to allow any secular authority to divert the trust money for purposes other than those for which the trust was created.
The State can step in only when the trust fails or is incapable of being carried out either in whole or in part.
We hold, therefore, that clause (3) of section 55, which contains the offending provision and the corresponding provision relating to the powers of the court occurring in the latter part of section 56(1), must be, held to be void.
The only other section of the Act to which objection has been taken is section 58 and it deals with the levy of contribution upon each public trust, at certain rates to be fixed by the rules, in proportion to the gross annual income of such trust.
This together with the other sums specified in clause (2) of section 57 makes up the Public Trusts Administration Fund, which is to be applied for payment of charges incidental to the regulation of public trusts and for carrying into effect the provisions of this Act.
As this contribution is levied purely for purposes of due administration of the trust property and for defraying the expenses incurred in connection with the same, no objection could be taken to the provision of the section on the ground of its infringing any fundamental rights of the appellants.
The substantial, contention that has been raised in regard to the validity of this provision comes, however, under the second head of the appellants ' arguments indicated above.
The contention is that the contribution which is made payable under this section is in substance a tax and the Bombay State Legislature was not competent to enact such provision within the limits of the authority exercisable by it under the Constitution.
This raises a point of some importance which requires to be examined carefully.
1073 It is not disputed before us that if the contribution that is levied under section 58 is a tax, a legislation regarding it would be beyond the competence of the State Legislature.
Entries 46 to 62 of List II in Schedule VII of the Constitution specify the different kinds of taxes and duties in regard to which the State Legislature is empowered to legislate and a tax of the particular type that we have here is not covered by any one of them.
It does not come also under any specific entry in List III or even of List I. The position, therefore, is that if the imposition is held to be a tax, it could come either under entry 97 of List I, which includes taxes not mentioned in Lists II and III or under article 248 (1) of the Constitution and in either case it is Parliament alone that has the competency to legislate upon the subject.
If, on the other hand, the imposition could be regarded as "fees", it can be brought under entry 47 of the Concurrent List, the Act itself being a legislation under entries 10 and 28 of that List.
The whole controversy thus centers round a point as to whether the contribution leviable under section 50 is a fee or tax and what in fact are the indicia and characteristics of a fee which distinguish it from a tax.
This identical question came up for consideration before this court in Civil Appeal No. 38 of 1953 referred to above, in, connection with the provision of section 76 of the Madras Religious and Charitable Endowments Act, and the view which we have taken in that case regarding the proper criterion for determining whether an imposition is a fee or tax is in substantial agreement with the view taken by the Bombay High Court in the present case.
As the matter has been discussed at some length in the Madras case, it will not be necessary to repeat the same discussions 'over again.
It will be enough if we indicate the salient principles that were enunciated by this court in its judgment in the Madras case mentioned above.
We may start by saying that although there is no generic difference between a tax and a fee and in fact they are only different forms in which the taxing power of a State manifests itself, our Constitution has, in fact, made a distinction between a tax and a fee for, 1074 legislative purposes.
While there are various entries in the three legislative 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 .This distinction is further evidenced by the provisions of the Constitution relating to Money Bills which areembodied in articles 110 and 199.
Both these articles provide that a bill should not be deemed to be a Money Bill by reason only that it provides for the imposition of fines or for the demand or payment of fees for licences or fees for services rendered, whereas a bill relating to imposition, abolition or regulation of a tax would always be recckoned as a Money Bill.
There is no doubt that a fee resembles a tax in many respects and the question which presents difficulty is, what is the proper test by which the one could be distinguished from the other? A tax is undoubtedly in the nature of a compulsory exaction of money by a public authority for public purposes, the payment of which is enforced by law.
But the other and equally important characteristic of a tax is, that the imposition is made for public purpose to meet the general expenses of the State without reference to any special advantage to be conferred upon the payers of the tax.
It follows, therefore, that although a tax may be levied upon particular classes of persons or particular kinds of property, it is imposed not to confer any special benefit upon individual persons and the collections are all merged in the general revenue of the State to be applied for general public purposes.
Tax is a common burden and the only return which the taxpayer gets is participation in the common benefits of the State.
Feees 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 the payments are demanded.
Thus in fees there is always an element of quid pro quo which is absent in a tax.
It may not be possible to prove in every case that the fees that are collected by the Government approximate to the expenses that are incurred by it in rendering any particular kind of services or in 1075 performing any particular work for the benefit of certain individuals.
But in order that the collections made by the Government can rank as fees, there must be co relation between the levy imposed and the expenses incurred by the State for the purpose of rendering such services.
This can be proved by showing that on the face of the legislative provision itself, the collections are not merged in the general revenue but are set apart and appropriated for rendering these services.
Thus two elements are essential in order that a payment may be regarded as a fee.
In the first place, it must be levied in consideration of certain services which the individuals accepted either willingly or unwillingly and in the second place, the amount collected must be ear marked to meet the expenses of rendering these services and must not go to the general revenue of the State to be spent for general public purposes.
As has been pointed out in the Madras case mentioned above, too much stress should not be laid on the presence or absence of what has been called the Coercive element.
It is not correct to say that as distinguished from taxation which is compuslory payment, the payment of fees is always voluntary, it being a matter of choice with individuals either to accept the service or not for which fees are to be paid.
We may cite for example the case of a licence fee for a motor car.
It is argued that this would be a fee and not a tax, as it is optional with a person either to own a motor car or not and in case be does not choose to have a motor car, he need not pay any fees at all.
But the same argument can be applied in the case of a house tax or land tax.
Such taxes are levied only on those people who own lands or houses and it could be said with equal propriety that a man need not own any house or land and in that event he could avoid the payment of these taxes.
In the second place, even if the payment of a motor licence fee is a voluntary payment, it can still be regarded as a tax if the fees that are realised on motor licences have no relation to the expenses that the Government incurs in keeping an office or bureau for the granting of licences and the collections are not appropriated for that purpose but 1076 go to the general revenue.
Judging by this test, it appears to us that the High Court was perfectly right in holding that the contributions imposed under section 58 of the Bombay Public Trusts Act are really feEs and not taxes.
In the first place, the contributions, which are collected under section 58, are to be credited to the Public Trusts Administration Fund as constituted under section 57.
This is a special fund which is to be applied exclusively for payment of charges for expenses incidental to the regulation of public trusts and for carrying into effect the provisions of the Act.
It vests in the Charity Commissioner and the custody and investments of the moneY belonging to the funD and the disbursement and pAyment therefrom are to be effected not in the manner in which general revenues are disbursed, but in the way prescribed by the rules made under the Act.
The collections, therefore, are not merged in the general revenue, but they axe earmarked and set apart for this particular purpose.
it is true that under section 6A of the Act, the officers and servants appointed under the Act are to draw their pay and allowances from the Consolidated Fund of the State but we agree with what has been said by Mr. Justice Shah of the Bombay High Court that this provision is made only for the purpose of facilitating the administration and not with a view to mix up the fund with the general revenue, collected for Government purposes.
This would be clear from the provision of section 6B which provides that out of.
the Public Trusts Administration Fund all the costs, which the State Government may determine on account of pay, pension, leave and other allowances of all.
the officers appointed under this Act, shall ' be paid.
It is the Public Trusts Administration Fund, therefore, which meets all the expenses of the administration of trust property within the scheme of the Act, and it is to meet the expenses of this administration that these collections are levied.
As has been said by the learned Judges of the High Court, according to the concept of a modern State, it is not necessary that services should be rendered only at the request of particular people, it is enough that payments are demanded for 1077 rendering services which the State considers beneficial in the public interests and which the people have to accept whether they are willing or not.
Our conclusion, therefore, is that section 58 is not ultra vires of the State Legislature by reason of the fact that it is not a tax but a fee which comes within the purview of entry 47 of List III in Schedule VII of the Constitution.
The result, therefore, is that in our opinion the appeals are allowed only in part and a mandamus will issue in each of these cases restraining the State Government and the Charity Commissioner from enforcing against the appellants the following provisions of the Act to wit : (i) Section 44 of the Act to the extent that it relates to the appointment of the Charity Commissioner as a trustee of religious public trust by the court, (ii) the provisions of clauses (3) to (6) of section 47, and (iii) clause (c) of section 55 and the part of clause (1) of section 56 corresponding thereto.
The other prayers of the appellants stand dismissed.
Each party will bear hi own costs in both the appeals.

summary:
Held, that the provision of a. 44 of the Bombay Public Trust Act, 1950, relating to the appointment of the Charity Commissioner as a trustee of any public trust by the court without any reservation in regard to religious institutions like temples and Maths is unconstitutional and must be held to be void.
The provisions of el.
(3) to (6) of a. 47 of the Act to the extent that they relate to the appointment of the Charity Commissioner as a trustee of a religious trust like temple and Math are unconstitutional and must be held to be void.
A religious sect or denomination has.
the undoubted right guaranteed by the Constitution to manage its own affairs in matters of religion and this includes the right to spend the trust property or its income for religion and for religious purposes and objects indicated by the founder of the trust or established by ussage 137 1056 obtaining in a particular institution.
To divert the trust property or funds for purposes which the Charity commissioner or the court considers expedient or proper, although the original objectes of the founder can still be carried out, is an unwarrantable encroachment on the freedom of religious institutions in regard to the management of their religious affairs.
Therefore cl.
(3) of section 55, which contains the offending provision and the corresponding provision relating to the powers of the court occurring in the latter part of section 56(1), must be held to be void.
Section 58 of the Act is not ultra vires of the State Legislature because the contribution imposed under the section is not a tax but a fee which comes within the purview of entry 47 of List III in Schedule VII of the Constitution.
Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar, ( ; Davis vs Beason ; , Adelaide Company vs The Commonwealth ; , 124) and Tamshed Ji vs Soonabai [1919] (I.L.R referred to.


judgement:
minal Appeal No. 175 of 1967.
Appeal by special leave from the judgment and order dated May 17, 1967 of the Allahabad High Court, Lucknow Bench in Criminal Appeal No. 72 of 1967 and Capital Sentence Reference No. 9 of 1967.
section P. Sinha.
and M. I. Khowaja, for the appellants.
G. N. Dikshit and O. P. Rana,, for the respondent.
The Judgment of the Court was delivered by Sikri, J.
This appeal by special leave by Ram Charan, Duila rey and Ram Bux is directed against the judgment of the Allahabad High Court, Lucknow Bench, confirming the convictions under section 302, read with section 34, I.P.C. Ram Charan and Dularey were sentenced to death while Ram Bux was sentenced to imprisonment for life.
355 The relevant facts in brief are as follows : On December 24, 1965, at about 8 a.m. four persons started for Lucknow on two cycles; Shanker Singh and Radhey Shyam were on one cycle and Surat Singh and Bachchu Lal on another.
Radhey Shyam had some business in Lucknow, including consulting Sri Pal Singh, Advocate, P.W. 20, regarding the preparation of a reply to a notice received by him.
After the work was finished the four left Lucknow.
It appears that Radhey Shyam was sitting on the carrier of the cycle driven by Shankar Singh, and Bachchu Lal was sitting on the carrier of the cycle driven by Surat Singh.
Radhey Shyam carried a leather bag in which he had kept money which he had received as the sale proceeds of jau sold by him in Lucknow.
For some reasons which need not be detailed, Shankar Singh and Radhey Shyam went ahead of Surat Singh and Bachchu Lal, and the distance between them when they came near about the scene of occurrence was, according to Surat Singh, between 1 1/2 and 2 furlongs.
When Shankar Singh and Radhey Shyam reached near the drain of Rastogi, they met Ram Charan, accused.
Radhey Shyam got down from the cycle and started walking with Ram Charan, while Shankar Singh followed a little behind.
Then the attack on Radhey Shyam took place and is described thus by Shankar Singh : "When we reached the grove of Durga Maharaj ' then Ram Bux and Dularey accused were sitting at the well.
Then Ram Charan by extending his hands (Kantiya Kar) caught hold of Radhey Shyam and threw him down on his face and after drawing his hands towards his back sat down catching him.
Dularey and Ram Bux came up running.
Dularey had a Banka and Ram Bux had a lathi.
Ram Charan told Dularey, 'Bring the Banka, why are you delaying it. ' Thereupon I cried out.
Then Dularey gave 5 6 7 Banka blows to Radhev Shyam on his neck.
As I was crying so Ram Charan saia 'Beat Thakurwa.
He will go to the village and tell that such and such persons had hacked Radhey Shyam. ' At this Ram Bux gave 5 6 Lathi blows to me.
By that time Surat Singh and Bachoo Mahraj also came there and Rupan also came.
" Surat Singh corroborates this statement.
He says that he saw all this from a distance of 1 'i furlongs.
Bachchu Lal, P.W. 7, also corroborates this version.
He says that on seeing the attack he and Surat Singh ran towards the scene of occurrence.
He further adds that when they were at a distance of about 30 35 paces, the accused ran away.
The First Information Report was lodged at the police station four miles from the scene of the occurrence at 17.30 hours by Shanker Singh.
356 The learned counsel for the appellants says that the First Information Report was written much later than the time men tioned above.
He relies first on the fact that the first page of the First Information Report was written very closely and the second page written not so closely.
He suggests that the draft was prepared sometime later and then it was copied into the Register in which first information reports are written; the writer having left only two pages for the report to be transcribed wanted to be quite certain that the report would finish in two pages.
This suggestion is, however, denied by Liaqat Hussain, P.W. 6, who was posted as Head Moharrir at the police station Kakori in 1965.
He says that he wrote on the first page of the report closely because he wanted that the whole matter should be completed on that page and that there was no other reason; after finishing the first page when he started writing on the second page then he did not write closely as the report had come to an end.
He denied the suggestion that two pages were left for writing this report.
This explanation seems to be true.
The special report of this case was sent, according to this witness, on December 24, 1965, at 7.55 p.m. through Abdul Rashid, Constable, who was called as Court Witness.
He says that he delivered the special report at the place of S.S.P. I at 9.10 a.m. on December 25, 1965.
The special report was sent to S.S.P. D.M., Additional S.P.C.O., S.D.M., and D.C.R.R.S. on Invoice Book at No. 54 which was exhibited in Court.
The learned counsel criticizes his evidence on the ground that there is no reason why he should have slept on the way.
The reason given by Abdul Rashid for breaking his journey on the way is that the ekka drivers and riksha drivers were charging too much.
In our view, there is no force in this contention of the learned counsel for the appellants.
The second ground of attack against the First Information Report is that the report itself discloses that it could not have been dictated by Shanker Singh.
He says that Shanker Singh was literate and yet the First Information Report bears his thumb mark.
He further says that it mentions the names of the fathers of Radhey Shyam, Ram Charan, Mata Pershad, Dayal, Lallu and Ram Bux, but in cross examination Shanker Singh admitted that he did not know the names of Ram Charan 's father and Rain Dayal 's father, and also he did not know the name of Ram Bux 's father.
He, however, further added in cross examination that at the time he gave the First Information Report, the names of the fathers of Ram Charan and Ram Dayal were then in his memory.
Another fact relied on by the learned counsel is that the First Information Report contains the word "sazish" while in cross examination Shanker Singh admitted that he did not know the meaning, of this word.
He urges that looking at all these circumstances it is clear that the First Information Report was either 357 written at the scene of occurrence after the Investigating Officer had gone there or that a draft was first written on a piece of paper some people supplying the names of the fathers of the various persons and suggesting words.
We are, however, unable to accede to this contention.
It may well be that the chowkidar who accompanied Shanker Singh supplied the name of the father of a particular person and the Head Moharrir may have substituted a word or two of his own, without changing the meaning.
The Investigating Officer went straightaway to the scene of the occurrence and started investigation.
None of these facts, in our opinion, cast doubt on the prosecution story.
It may be that Shanker Singh is able to sign but he put his thumb impression not only on the First Information Report but on his statement under section 164, Cr.
P.C., and this statement before the Committing Magistrate.
It may be that It was felt safer to have his thumb impression which he could not effectively deny later.
But the fact that the special report 'was sent on December 24, 1965, in the evening, dispels any doubt about the fact that the First Information Report was lodged at 5.30 p.m. on December 24, 1965.
Dealing with the eye witnesses, the learned counsel drew our attention to the endorsement which was made by the Magistrate who took down the statements under section 164, Cr.
Below he statements is appended a certificate in the following form "Certified that the statement has been made voluntarily.
The deponent was warned that he is making the statement before the 1st class Magistrate and can be used against him.
Recorded in my presence.
There is no police here.
The witness did not go out until all the witnesses had given the statement.
" This certificate appears below the statements of Shanker Singh, Surat Singh and Bachchu Lal.
The learned counsel rightly suggests that the endorsement is not proper.
But we are unable to pay that it follows from this endorsement that any threat was given to these witnesses or that it necessarily makes the evidence given by the witnesses in Court suspect or less believable.
The learned counsel further relies on the following passage rom the judgment of Dhavle J., in Emperor vs Manu Chik(1) "There is yet another circumstance which calls for remark, and that is the examination, of Ladhu and Rebi among other witnesses under section 164, Criminal P.C. it was pointed out by Prinsep, J., in the well known case in Queen Empress vs Jadub Das(2) that a statement of a (1) A.I.R. 1938 Pat 290 295.
(2) 358 witness obtained under this section always raises a suspicion that it has not been voluntarily made, and that the section was not intended to enable the police, to obtain a statement from some person (in that case it was an incriminating statement) and as it were to put a seal on that statement by sending in that person to a Magistrate practically under custody, to be examined before the judicial inquiry or trial, and therefore compromised in his evidence when judicial proceedings are regularly taken.
" These observations were dissented from by the Andhra Pradesh High Court in In re : Gopisetti Chinna Venkata Subbiah(1) and Subba Rao, C.J., preferred the following observations of the, Nagpur High Court in Parmanand vs Emperor(1) "We are of the opinion that if a statement of a witness is previously recorded under section 164, Criminal Procedure Code, it leads to an inference that there was a time when the police thought the witness may change but if the witness sticks to the statement made by him throughout, the mere fact that his statement was previously recorded under section 164 will not be sufficient to discard it.
The Court, however, ought to receive it with caution and if there are other circumstances on record which lend support to the truth of the evidence of such witness, it can be acted upon.
" We agree with Subba Rao, C.J., that the observations of the learned Judges of the Nagpur High Court lay down the lay correctly.
In the result the appeal fails and is dismissed.
V.P.S. Appeal dismisses (1) I.L.R. (2) A.I.R. 1940 Nag. 340.

dataset_name: IN-Abs

summary:
The statements of eye witnesses to a murder were recorded under section 164, Criminal Procedure Code, and a certificate was appended to each of the statements to the effect, that the deponent was warned that he was making the statement before a Magistrate and that it might be used against him.
On the question as to the weight to, be attached to the evidence given by the witnesses in court, HELD : It did not follow from the endorsement that any threat was given to the witnesses or that it necessarily made their evidence in court suspect or less believable.
[357 G] If a witness, in his evidence in court sticks to the version given by him in the statement under section 164, Cr.
P.C. the mere fact that the statement was previously recorded under the section is not sufficient to discard his .,evidence.
The only inference that can be drawn is that there, was a time when the police thought the witness may change his evidence.
The Court.
%however, ought to.
receive the evidence with caution.
[358 D] Observations in Parmanand vs Emperor, A.I.R. 1940 Nag. 340, 344 and In re : Gopisetti Chinna Venkatasubbialh.
, I.L.R. , 639.
approved.
Observations contra in Emperor vs Manu Chik, A.I.R. 1938 Patna 290, 295, disapproved.


judgement:
Appeal No. 1943 of 1967.
Appeal from the judgment and order dated October 24, 1967 of the Patna High Court in Civil Writ Jurisdiction Case No. 283 of 1966.
Basudev Prasad and section N. Prasad, for the appellant.
M. C. Chagla, Saptmi Jha and B. P. Jha, for respondent No. 1.
U. P. Singh, for respondent No. 2.
The Judgment of the Court was delivered by Shah, J.
On January 15, 1965, the South Bihar Regional Transport Authority, Patna, ordered that a permit to ply a stage carriage on Dehri Bhabua route be granted to Arbind Kumar Singh hereinafter called 'the appellant on production of all valid documents of 1964 model bus along with clearance certificate of transport tax within one month from the date of order, failing which the sanction of permit in his favour would stand automatically revoked, and permit will then be given to the next deserving candidate Nand Kishore Prasad. . .
On application submitted by Nand Kishore Prasad who will .
hereinafter be referred to as 'the respondent that the appellant had failed to 324 carry out the condition relating to the grant of permit, the Chairman of the Regional Transport Authority by order dated February 20, 1965, cancelled the permit and directed that a permit be given to the respondent.
The order of the Chairman was reversed in appeal by the Appellate Board.
In the view of the Board "the clearance certificate" filed by the appellant showed that all the taxes due by him were paid.
The respondent then moved the State Government of Bihar under section 64 A of the as amended by the Bihar Motor Vehicles (Amendment) Act 17 of 1950.
The Minister of Transport who heard the petition reversed the order of the Appellate Board, holding that the appellant had failed to carry out the conditions subject to which the Regional Transport Authority had ordered that the permit be given to him.
A petition under article 226 of the Constitution moved by the appellant in the High Court of Patna against the order of the Minister of Transport was dismissed.
The appellant has appealed to this Court with certificate granted by the High Court.
The plea raised by counsel for the respondent that the appeal was liable to be dismissed because the High Court was incompetent to grant a certificate of fitness under article 133(1)(a) or article 1 3 3 ( 1 ) (b) of the Constitution against the judgment of the High Court exercising extraordinary original jurisdiction under article 226 of the Constitution is without substance.
This Court has held in section A. L. Narayan Row & Anr.
vs Ishwarlal Bhagwandas & Anr.
(1) that the words "civil proceeding" used in article 133 of the Constitution cover all proceedings which directly affect civil rights.
A proceeding under article 226 of the Constitution for a writ to bring up a proceeding for consideration concerning civil rights is therefore a civil proceeding.
This Court has further held in Ramesh and A nr.
vs Seth Gendalal Motilal Patni and Ors.
(2) that the High Court is competent to certify on appeal against an order passed by a Division Bench of a High Court in exercise of extraordinary original jurisdiction under article 226 of the Constitution if the dispute decided thereby concerns civil rights of the parties.
Hidayatullah, J., speaking for the Court observed at p. 203 "Mr. Gupta 's contention that under that article (article 133) an appeal can only lie in respect of a judgment or decree or final order passed in the exercise of appellate or ordinary original civil jurisdiction but not of extraordinary original civil jurisdiction, is not right.
Article 133 not only discards the distinction between appellate and original jurisdiction but deliberately used words which are as wide as language can (1) ; (2) [1966]3 S.C.R. 198 325 make them.
The intention is not only to include all judgments, decrees and orders passed in the exercise of appellate and ordinary original civil jurisdiction but also to make the language wide enough to cover other jurisdictions under which civil rights would come before the High Court for decision.
" The plea raised by counsel for the respondent that the High Court was not competent to grant the certificate must therefore be rejected.
The Bihar Legislature enacted Bihar Act 17 of 1950, imposing tax on passengers and goods carried by public service motor vehicles in Bihar.
Validity of this levy was upheld by the High Court of Patna.
But after the decision of this Court in Atiabari Tea Co. Ltd. vs State of Assam(1), the appeals filed by the operators who challenged the levy were allowed by this Court.
The State of Bihar thereafter issued Bihar Ordinance 11 of 1961 which was replaced by Bihar Act 17 of 1961 By that Act the tax was reimposed with effect from the 1st day of April, 1950.
That imposition of tax was again challenged in writ petitions filed before the High Court of Patna, but without success, and the order of the High Court was confirmed by this Court in Rai Ramkrishna and Ors.
vs State of Bihar(1).
Section 1(3) of Act 17 of 1961 declares that the Act shall be deemed to have come into forced on the first day of April, 1950.
By section 2(i) 'tax ' means tax payable under the Act and includes the fixed amount determined under section 8.
By section 3 charge of tax is imposed.
It provides by sub section
(1) : "On and from the date on which this Act is deemed to have come into force under sub section (3) of section 1, there shall be levied and paid to the State Government a tax on all passengers and goods carried by a public service motor vehicle; such tax shall be levied and paid at the rate of twelve and a half per centum of the fares and freights payable to the owner of such vehicles Provided. . ." Section 6 requires the owner of the vehicle to make prescribed return to the prescribed authority within such period as may be prescribed.
Section 7 prescribes the machinery for assessment of tax.
Section 9(1) provides that the amount of tax or penalty.
if any, payable by an owner under the Act shall be paid in the manner hereinafter provided.
Sub section (2) of section 9 provides that before any owner furnishes any return under the Act he shall.
in the prescribed manner pay into the Government Treasury the full amount of tax due from him under the Act according to such return and shall furnish along with the return a receipt from the (1) ; (2) A.I.R. 19463 S.C. 1667.
326 treasury showing payment of the said amount.
By section 22 power is conferred upon the State Government to make rules not inconsistent with the Act for all matters expressly required or allowed by the Act to be prescribed and generally for carrying out the purposes of The Act and regulating the procedure to be followed, forms to be adopted and fees to be paid in connection with proceedings under the Act and all other matters ancillary or incidental thereto.
In exercise of the power conferred by section 22, the State of Bihar has framed the Bihar Taxation on Passengers and Goods (Carried by Public Service Motor Vehicles) Rules, 1966.
Rule 11 provided that every owner shall furnish to the authority prescribed in r. 16, a monthly return, in Form V within a period of fifteen days of the close of the month to which such return relates.
Rule 18 provides that where any sum is payable by an owner under the Act or the rules or any amount due for which a notice is to be given under sub section (4) of section 9, the authority prescribed in r. 16 shall serve notice in Form XI, and shall also fix a date by which the owner shall produce a receipted challan in proof of such payment.
It is clear from the scheme of the Act and the rules that by section 3 a charge is imposed upon an owner of the vehicle to pay tax to the State Government on all passengers and goods carried by a public service motor vehicle at the rates fixed by the statute and the owner must make monthly returns within fifteen days from the expiry of the month to which the return relates The decision of the Madhya Pradesh High Court in Raipur Transport Co., Private Ltd., Raipur vs M. P. Singh and Ors.
(1) on which reliance was placed by counsel for the appellant has, in our judgment, no bearing on the question which falls to be determined in this appeal.
Section 10 of the Motor Vehicles (Taxation of Passengers) Act, 1959, passed by the State of Madhya Pradesh provided that in cases referred to in sections 7, 8 and 9, the Tax Officer shall serve on the operator a notice of demand for the sums payable to the State Government.
That in the view of the High Court pre supposes that an order of assessment has been made under the earlier provisions of the Act, and therefore an order of assessment was necessary not only for the validity of the notice of demand, but also for enabling the appellate authority to see whether the tax had been correctly assessed or not and the demand made against the operator was or was not justified.
We are in the present case not concerned to determine the validity of a notice of demand.
The liability to pay tax under Bihar Act 17 of 1961 clearly arises by statutory injunction and not from the order of assessment.
In terms section 3 says that there shall be levied and paid to the State Government a tax on all passengers and goods carried by a public service motor vehicle.
(1) A.I.R. 1968 M.P. 36.
327 The appellant plied his motor buses in 1950 51 and on the plea that the tax was invalid did not pay the tax levied under Act 17 of 1950.
After the reimposition of the tax by Act 17 of 1961, there survived no ground on which the liability to pay tax could be resisted.
On January 15, 1965, a condition had been imposed upon the appellant that a permit would be granted to him provided he produced a clearance certificate.
Liability to pay transport tax amounting to Rs. 1,675/ was outstanding against the appellant for nearly fifteen years and that liability was discharged by payment on March 5, 1965.
it cannot, in the circumstances, be contended that there was no liability to pay transport tax outstanding against the appellant on the date of the order granting him the permit.
Failure to produce the clearance certificate in respect of the transport tax clearly disentitled the appellant to the grant of a permit.
Counsel for the appellant, however, contended that the impo sition of a condition that the appellant shall produce a clearance certificate in respect of the transport tax was invalid and the condition was liable to be ignored by the appellant.
Section 47(1) of the , insofar as it is material provides : "A Regional Transport Authority shall, in considering an application for a stage carriage permit, have regard to the following matters, namely : (a) the interests of the public generally; (b) the advantages to the public of the service to be provided, including the saving of time likely to be effected thereby and any convenience arising, from journeys not being broken; (c) the adequacy of other passenger transport services operating or likely to operate in the near future, whether by road or other means, between the places to be served; (d) the benefit to any particular locality or localities likely to be afforded by the service; (e) the operation by the applicant of other transport services, including those in respect of which applications from him for permits are pending; (f) the condition of the roads included in the proposed route or area; and shall also take into consideration any representation made by persons already providing passenger transport facilities by any means along or near the proposed route sup.
Cl/68 8 328 or area, or by any association representing persons inte rested in the provision of road transport facilities recog nised in this behalf by the State Government, or by any local authority or police authority within whose juris diction any part of the proposed route or area lies Provided. . . . . " Sub section (2) of section 47 sets out the conditions under which the Regional Transport Authority may refuse to grant a stage carriage permit; and sub section
(3) provides for the conditions in which, having regard to the matters specified in sub section
(1), the Regional Transport Authority may limit the number of stage carriages generally or of any specified type for which stage carriage permit may be granted in the region or in any specified area or on any specified route within the region.
It was urged that under section 47 the Regional Transport Authority is bound to consider only the matters which are specified in cls.
(a) to (f) of sub section
(1) of section 47, Ind if the applicant is found qualified for a permit no conditions may be imposed by the Regional Transport Authority.
We need express no opinion on that argument.
If the argument raised by counsel for the appellant has any substance, and if it be held that the grant of a permit is to be subject only to such of the conditions as may be prescribed under section 48, the order made by the Regional Transport Authority must be deemed to be an order refusing the permit.
The appellant could, if so advised, have challenged the validity of the imposition of the condition relating to the payment of tax, but he could not ignore the conditions subject to which the permit was granted.
Finally, it was urged that the Minister of Transport acted illegally in taking into account evidence which was not on the record of the Regional Transport Authority, and alternatively, that the Minister violated the fundamental rules of natural justice in basin,, his judgment upon a document received from the Deputy Commmissioner of Commercial Taxes, intimating that the transport tax was due by the appellant without bringing it to the notice of the appellant and calling for an explanation.
Section 64 A of the , as amended by Bihar Act 17 of 195( authorises the State Government to call for, in the course of any proceedings taken under the Chapter, from any authority or office) subordinate to it, the records of such proceedings, and after exa, mining such records pass such order as it thinks fit.
The expressior "pass such order as it thinks fit" is not restricted to the passini of orders which are final in character.
If for the purposes of.
doing complete justice between the parties, the authority who heare the revision petition is satisfied that it is necessary to call for addi tional evidence, he may call for such evidence.
There, is no bar in the Act or the rules against an appellate or the revising authority 329 taking into consideration additional evidence brouaht on the record, if the authority requires additional evidence to be brought on the record or allows it to be brought on the record to do complete.
justice between the parties.
The evidence must undoubtedly be disclosed to the parties and they must be given an opportunity to meet an inference that may arise from such additional evidence.
We are unable to hold that the Minister of Transport in taking into consideration the report received from the Deputy Commi sioner of Commercial Taxes, Intelligence Branch, that an amount of Rs. 1,675/ was outstanding on February 16, 1965, against the appellant in respect of the two buses plied in the year 1950 51 acted in violation of the rules of natural justice.
The circumstance, , in which this document was brought on the file of the Minister are not clear on the record.
But, as stated by the Minister, the document was disclosed to counsel for the appellant and counsel was asked to give a reply thereto.
The Minister also recorded in his judgment that counsel for the appellant explained that since there was no demand for payment of the dues, it was not correct to say that the amount of Rs. 1,675/ was due against the appellant on February 16, 1965.
The Minister of Transport rejected that argument.
Before us it was contended that the document was never shown to the appellant 's counsel and he was never asked to render his explanation in that behalf.
If this were true, the appellant would, we have no doubt, have approached the Minister who was exercising quasi judicial functions, and would have asked him to review his order.
This admittedly has not been done.
Again, if the grievance now raised were true, the averments made in paragraph 19 of the petition before the High Court would not have taken the form which they have taken.
In paragraph 19 it is stated that "the so called report of the Deputy Commissioner, Commercial Taxes, Intelligence Branch, Patna, under Memo No. 8527 dated 24 7 1965 was never shown to the petitioner and the petitioner had no opportunity to meet the said report." Whereas the Minister of Transport had recorded that the report of the Deputy Commissioner, Commercial Taxes, was shown to counsel for the appellant and the counsel had given certain information the petition before the High Court merely stated that the appellant was not shown the report of the Deputy Commissioner.
The High Court on a consideration of the evidence has come to the conclusion that the claim made by the appellant that the document was not disclosed at the hearing before the Minister of Transport, and the Minister acted upon that document without informing the appellant, cannot be accepted, and we do not see any reason to disagree with the view expressed by the High Court.
The appeal fails and is dismissed with costs.
V.P.S. Appeal dismissed.

summary:
In 1950 51, the appellant was plying his motor buses in Bihar.
Bihar Act 17 of 1950 imposed a tax on passengers and goods carried by public service motor vehicles.
As the imposition of the tax was found to be invalid the appellant did not pay the tax.
In 1961, the tax was reimposed by Act 17 of 1961 with effect from 1st April 1950 and the imposition was found to be valid.
Therefore, the appellant was liable to pay the transport tax for 1950 51.
This liability was outsanding on 15th January 1965, on which date, the Regional Transport Authority ordered that a permit to ply a stage carriage be granted to him on condition that he produced a clearance certificate of transport tax within one month from the date of the order failing which the grant will stand automatically cancelled and the permit will be granted to the first respondent.
As the appellant failed to carry out the condition the permit was cancelled and given to the first respondent.
The order was confirmed by the Government, in revision, under section 64A of the , as amended by the Bihar Motor Vehicles (Amendment) Act, 1950, after calling for and considering a report from the Dy.
Commissioner of Commercial Taxes, that the transport tax was due from the appellant for 1950 51.
The writ petition in the High Court to quash the Government order was dismissed.
The appellant appealed to this Court with certificate granted by the High COurt under article 133 of the Constitution.
The respondent contended that the High Court was not competent to grant the certificate in proceedings under article 226; and the appellant contended that : (1) on the date of the order granting the permit there was no liability to pay the tax as there was no assessment; (2) the condition regarding payment of tax was invalid; (3) the Minister of Transport who disposed of the revision to the Government had no right to call for any additional evidence; and (4) the report of the Dy.
Commissioner of Commercial Taxes should have been disclosed by the Minister to the appellant.
HELD : (1) The words 'civil proceedings ' in article 133 cover all proceedings which directly affect civil rights, and therefore the High Court was competent to grant the certificate in a proceeding under article 226 involving civil rights.
[324 E F] section A. L. Narayan Row vs Ishwar Lal Bhagwandas, ; and Ramesh vs Seth Gendalal Motilal Patni, ; , followed.
(2) Under the scheme of the Act the liability to pay tax arises by statutory injunction and not from any order of assessment.
Therefore, there was a liability to pay the transport tax outstanding, against the appellant, on the date of the order granting him the permit and failure to 323 produce the clearance certificate in respect of the tax disentitled him to the sant of a permit.
[326 H; 327 C] Raipur Transport Co. (P.) vs M. P. Singh, A.I.R. 1968 M.P. 36 distinguished (3) If it be held that the grant of a permit was to be subject only to such of the matters specified under section 47(1) (a) to (f) and to such of the conditions as may be prescribed under section 48, the order of the Regional Transport Authority in the present case must be deemed to be an order refusing the permit, and, the appellant should have challenged, by way of appeal, the validity of the imposition of the condition relating to payment of tax; he could not ignore the condition subject to which the permit was granted.
[328 D E] (4) The expression 'pass such order as it thinks fit ' in s 64A, as amended by the Bihar Act, is not restricted to the passing of final orders.
If for the purpose of doing complete justice between the parties, the authority who hears the revision petition is satisfied that it is necessary to call for additional evidence, he may do so.
There is no bar in the Act or the Rules against an appellate or revising authority taking into consideration the additional evidence brought on record.
[328 G H] (5) Such additional evidence must undoubtedly be disclosed to the parties and they must be given an opportunity to meet an inference that may arise from it.
In the present case, the High Court, on a consideration of the evidence came to the conclusion that the additional evidence called for by the Minister of Transport was disclosed by him, at the hearing, to the appellant 's counsel and there was no reason for this Court to disagree with that view.
[329 A B, H]