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

SHINGHAL J.-I have gone through the judgment of my Lord the Chier' Jusitce. While I concur with him that the appeals fail oand should b() dismissed, I think there is really no occasion to cousider the argument of Mr. Datar that the continued application of the Madras Hindu Religious and Charitable Endowments Act, 1951 (referred to as the Madras Act of 1951 by the .Chief Justice) to the South Kanara district, is violative of article 14 of the Constitution. So also, I am unable to subscribe to the view that "inequality i& so clearly writ large on the face of the impugned statute in its application to the district of South Kanara only ·that it is perilously near the periphery of unconstitutionality," when the necessary data to justify that conclusion has not been placed on the record and when it has been found that there is no justification for holding that the continued application of that Act to the South Kanara district has become violative of article 14 "until now". If I may say so with respect, that is. my apology for expressing myself_ on tlrat shori point, although I agree with my Lord on questions relating to the competence of the Commissioner for Settlements and Charitable Endowments to exercise the functions of the Commissioner under the Madras Act of 1951, and the existence of quid pro quo.

pp. 388–389, margin H

The right to equality enshrined in article 14 has been shortly but grandly stated in the form of the directive that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of the country. It is therefore a fundamental right which every citizen possesses; and he has the further right, under article 13(2), to ask that the law which takes away or · abridges any of the rights conferred by Part III shall, to the extent it contravenes that right, be declared to be void. That is why further provision has expressly been made in article 32 guaranteeing the right to move this Court "by appropriate proceedings" for the enforcement of the rights conferred by Part III, and it lras been provided in article 226, inter alia, that every High Court shall have the power to issue the writs mentioned therein: for the enforcement of any of those rights. It does not require much argument to say further that, in either case, it is for the aggrieved citizen to file the appropriate proceeding or petition for a redress of his grievance, in order that the Court may hear the other concerned party, examine the merits of the matter, and arrive at a decision.

p. 389, margin D

In _other words, a pleading or a statement of the material faots is necessary on the side of the petitioner and, if his claim is contested, -0n the side of the respondent, for that enables them to formulate their case in preparation of the hearirg. Besides giving fair notice of the case of either side, that defines the points at issue and confines the controversy to them, It also enables the parties to bring out their evidence to best advantage, and eliminates prejudice or a snap aecision. Pleadings are thus of vital importance, for if there is no pJeadC ing of the necessary facts in a petition for the redress of a grievance, the petitioner has h~self to thank for his ultimate discomfiture. on that account.

pp. 389–390, margin G

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

p. 390, margin A

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

p. 390, margin E

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

p. 390, margin G

differential treatment of persons, objects and transactions in the new State. because it was intended to serve a dual purpose facilitating the early formation of homogeneous units in the larger interest of the Union, and maintaining even while merging its political identity in the new unit, the distinctive character of each region, till uniformity of laws was secured in those branches in which it was expedient after full enquiry to do so. The laws of the regions merged in the new units had therefore to be continued on grounds of necessity and expediency. Section 119 of the States Reorganisation Act was intended to serve this temporary purpose, viz., to enable the new units to consider the special circumstances of the diverse units, before launching upon a process of adaptation of laws so as to make them reasonably uniform, keeping in view the special needs of the component regions and administrative efficiency. Differential treatment arising out of the application of the laws so continued in different regions of the same reorganised State, did not therefore immediately attract the clause of the Constitution prohibiting discrimination."

p. 391

It was at the same time appreciated that by passage of time, considerations of necessity and expediency may be obliterated, and the grounds which justified classification of a geographical region for historical reasons may cease to be valid, and it was observed that a purely temporary provision could not be permitted to assume permanency so as to perpetuate a discriminatory treatment without a rational basis to support it after the initial expediency and necessity had disappeared. But even while making this observation on a point relating to the legal aspect of the prayer for redress under article 14 of the Constitution, this Court expressed disagreement with the view of the High Court that as no attempt was made to remove the discrimination in the matter of the levy of agricultural income-tax, it was unlawful because the State had since the enactment of the States Reorganisation Act sufficient time and opportunity to decide whether the continuance of the Bhopal State Agricultural Income-tax Act in the Bhopal region would be consistent with article 14 of the Constitution. In that connection, the Court went on to hold as follows-

p. 391, margin C

"It would be impossible to lay down any definite timelimit within which the State had to make necessary adjustments so as to effectuate the equality clanse of the Constitution. That initially there was a valid geographical classification of regions in the same State justifying unequal laws when the State was formed must be accepted. But whether the· continuance of unequal laws by itself sustained the plea of unlawful discrimination in view of changed circumstances could only be ascertained after a full and thorough enquiry into the continuance of the grounds on which the inequality could rationally be founded, and the change of circumstances, if any, which obliterated the compulsion of expediency ana necessity existing at the time when the Reorganisation Act was enacted."

pp. 391–392, margin E

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

p. 392, margin B

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

p. 392, margin B

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

p. 392, margin E

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

p. 392, margin G

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

p. 393, margin A

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

p. 393, margin B

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

p. 393, margin C

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

p. 393, margin C

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

p. 393, margin F

It is thus quite clear that the appellants rested their plea of discrimination on the sole ground that the continued application of the provisions of the Act to South Kanara district of the reorganised State a(ter 8 or 9 years from November 1, 1956, (when the State was fontted) without "uuifying" the legislation on the subject of Hindu religious and charitable endowments, was "wholly discriminatory.'' The other plea in paragraph 23 about "mixing" of mutts with temples is not quite intelligible and has not even been referred to by couusel during the course of their arguments. The ground which has been taken is therefore quite untenable for, as has been mentioned, it has been declared in the case of the Bhopal Sugar Industries that it is impossible to lay down any definite time limit within which the State has to make the necessary adjustment for the purpose of effectuating the equality clause of the Constitution, and that while the differential treatment could not be permitted to assume permanency without a rational basis to support it as years go by, a mere plea of differential treatment is by itself not sufficient to attract the application of article 14. The ~allowing further observation in that case clearly bears; on the point under consideration :-

pp. 393–394, margin G

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

p. 394

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

p. 394

If the appellants thought otherwise, it was necessary for them to plead and establish the necessary facts to enable a proper enquiry into their allegation of inequal or discriminatory treatment. But, has been stated, that has not been done. I am therefore unable to think~ that, in the absence of the necessary pleadings, it can be said that inequality is so clearly writ large on the face of the impugned statute in its application to the district of South Kanara only, that is perilously near the periphery of unconstit~tionality merely because of the lapse of 23 years.

pp. 394–395

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

p. 395, margin A