Chandra Reddy, C.J.
1. W.P. No. 554 of 1959: - The legality of contribution demanded from Sri Raghavendraswami Mutt by the Commissioner Religious and Charitable Endowments, is brought in issue in this petition by the Matadhipathi of Sri Raghvendraswami Mutt situated in Mantralaya, Adoni Taluk, Kurnool District.
2. We will refer briefly to events and circumstances out of which this litigation has arisen. For the first lime in the history of this institution, contribution was demanded by the Hindu Religious and Charitable Endowments Board (hereinafter referred to as the Board) on the 30th June, 1947, under Section 69 of Madras Hindu Religious Endowments Act (II of 1927), which is the ancestor of the provision of the law in the Endowments Act (XIX of 1951) (hereinafter called the new Act) which is impeached before us. Thereupon, the petitioner challenged the jurisdiction of the Board by initiating appropriate proceedings on pleas that the institution is not a mutt within the contemplation of Act II of 1927 which was then in force and that in any event it was not amenable to the jurisdiction of the Board as the Mutt had its Headquarters at Nanjangud, Mysore State, and on other allied grounds. As these objections were negatived by the Board, O. P. No. 112 of 1947 was filed by the petitioner in the District Court, Bellary, of which Adoni was then 8 part. Not having succeeded there, the petitioner took the matter in appeal to the Madras High Court A. S. No. 114 of 1951. During the pendency of the appeal, the Board and other proper authorities were restrained by an injunction from interfering with the management of the institution and also from applying the provisions of Act II of 1927 to the mutt in question. Having thus been disabled from taking any action to enforce the demand, the Board does not seem to have proceeded further in the matter of collection of contribution and the audit fee. Ultimately, a Division Bench of this Court held inter alia that the institution in question is a mutt as defined in the Act and is located within the State of Andhra Pradesh, and as such it is within the cognizance of the Board. In the result, the appeal filed by the- petitioner was dismissed.
3. After the matter was thus concluded, the Commissioner i.e., the second respondent herein, required the petitioner to pay the arrears of contribution and audit fee upto end of fasli 1367.
4. The petitioner objected to the levy of contribution on the ground that it could not be legally demanded from him since no services were rendered by the second respondent to the mutt and that, at any rate, the contribution levied was not correlated to the services rendered by the Department to it.
5. These objections did not prevail with the Commissioner with the result that the demand already made was confirmed.
6. It is to remove this order of the Commissioner on Certorari that the jurisdiction of this Court under Article 226 of the Constitution has been invoked in W. P. No. 554 of 1959. In the writ petition, the stand taken by the petitioner was that the contribution imposed by the second respondent was in the nature of tax, that the provision of law which empowered the second respondent to levy contribution was illegal and Ultra vires and that, at any rate, the amount demanded towards contribution was not commensurate with the services rendered by the Department to the petitioner. But, in the course of argument, these grounds were not urged having regard to the decisions of this Court culminating in Sri Gopalaswamivari Temple v. Commr. for Hindu Religious and Charitable Endowments, Andhra Pradesh, : AIR1961AP216 (FB). On the other hand different issues were raised.
7. At the forefront of the arguments it was contended by Sri Rajah Ayyar, learned counsel for the petitioner, that the levy of contribution for the period between 1943 and 1950 was illegal as the provision of law, which is analogous to Section 76 of Act XIX of 1951, was unconstitutional and that between the date of the inauguration of the Constitution and the passing of the new Act there was no law which enabled either the Board or the Commissioner for the Hindu Religious and Charitable Endowments to call upon the mutts or temples to pay contribution. This argument is founded on the judgment of the Supreme Court in the well-known Sirur Mutt's Case (Commissioner of H. R. E., Madras v. Sirur Mutt, 1954 SCJ 335 : (AIR 1954 SC 282).
8. In order to bring out the nature and scope of the controversy, it is useful to trace the legislative background of the provision of law which is impugned before us. Section 69 of Act II of 1927 vested power in the Deputy Commissioner to levy contribution annually on every mutt and temple to meet the expenses of the Board. This Act was in operation till it was replaced by Act (XIX of 1951) in August, 1951. The new Act introduced several changes but it is unnecessary to refer to them. So far as Section 69 is concerned, no material changes have been made.
9. The passing of the new Act furnished an opportunity to one of the Mutts in the composite State of Madras to challenge the validity of some of its provisions, including Section 76, in a writ petition in the Madras which had then jurisdiction over that Mutt. The Madras High Court upheld some of the contentions of the petitioner before it and declared several of the sections of the new Act, including Section 76, as illegal and ultra vires. Thereupon, the Commissioner of the Hindu Religious and Charitable Endowments, Madras, carried the matter in appeal to Supreme Court : 1SCR1005 . It is unnecessary for us to refer to the judgment of the Supreme Court dealing with the several provisions of the enactment as they have no bearing on the present enquiry. It is enough if we confine ourselves to that portion of the judgment which has dealt with the constitutionality of Section 76 which permits the levy of contribution.
10. It was laid down by their Lordships that the contribution partook of the character of tax, that it was beyond the powers of a State legislatures to enact such a provision, that since this particular tax had not been provided for in any specific entry in any of the three lists it would come only under entry 97 of List I or Article 248(1) of the Constitution and that in either view the Union Legislature alone would be competent to legislate upon it.
11. This judgment created difficulties in the way of the states levying contribution from temples and mutts. In order to eliminate the objectionable features implicit in the law, the State of Andhra amended Section 76 by the Madras Hindu Religious and Charitable Endowments (Andhra Second Amendment) Act (IV of 1954) by adding the clause 'for meeting the cost of such services' after the word 'annually' occurring in Sub-section (1) of Act XIX of 1951 and another sentence 'The contribution so paid shall be kept and administered as a separate fund' at the end. Subsection (4) was also amended by the addition of the following provisions:
'The payments made by the Government under Sub-section (4) (except in so far as such payments relate to the cost of auditing the accounts) shall be recouped from the fund referred' to in Sub-section (1).'
12. While this amendment enabled the Commissioner to demand contribution subsequently, he could not recover contribution for the period between the date of the passing of Act XIX of 1951 and 18-3-1054 when the amendment noticed above was introduced. To get over this difficulty, that section was further amended in 1955 by inserting Section 76-A which postulated:
'(1) For the period from the commencement of this Act until the commencement of the Madras Hindu Religious and Charitable Endowments (Andhra Second Amendment) Act, 1954, (Andhra Act IV of 1954) (hereinafter in this section referred to as the said Act), the rate prescribed by the Government under Sub-section (1) of Section 76 shall be deemed to be the rate prescribed under Sub-section (1) of Section 76 as amended by the paid Act, and contributions for the said period shall, notwithstanding anything contained in Subsection (1) of Section 79, be leviable at the rate aforesaid and contributions paid to the Government before the commencement of the said Act, shall be deemed to be contributions paid into the fund referred to in Sub-section (1) of Section 76 as so amended.
(2) The Government shall pay into the fund referred to in Sub-section (1) of Section 76, the balance, if any, remaining out of the aggregate of the contributions paid or realised before the commencement of the said Act in pursuance of Subsection (1) of Section 76 after deducting therefrom the sums paid under Sub-section (4) of Section 76 except in so far as such payments relate to the cost of auditing the accounts.'
13. Thus, the new provision of law validatedthe contributions levied for the period indicatedabove. Taking advantage of these amendments,the Board issued the impugned notice to the petitioner.
14. This notice is challenged by Sri Rajah Ayyar, learned counsel for the petitioner, on several grounds, one of which has already been set out above. The view pressed upon us by the learned counsel is that the judgment of the Supreme Court in the Sirur Mutt's case, : 1SCR1005 governs the pre-constitution period also and, consequently, Section 69 of the old Act (II of 1927) must be struck down since what was sought to be collected even under that Act was a 'tax'. In regard to the period between the coming into effect of the Constitution and the passing of Act XIX of 1951, there was no valid law which permitted the second respondent to demand contribution, continued the learned counsel.
15. It must be mentioned at the outset that such a ground as this was not taken in the writ petition. That being so, it is not open to the learned counsel to urge that point for the first time in the course of arguments. Ever otherwise, there is no substance in that contention. We are unable to accede to the proposition enunciated by the learned counsel that Section 69 of the old Act stands on the same footing as Section 76 of the new Act in regard to its constitutionality. It should be remembered that Section 76 was struck down in the Sirur Mutt's case : 1SCR1005 because of lack of legislative competence of the State Legislature to make a law providing for the levy of 'tax' after the commencement of the Constitution. The decision did not rest on the ground that it invaded any fundamental right, in which case alone the impugned provision of law could be said to be ineffective by reason of Article 13 of the Constitution.
16. The view taken by their Lordships of the Supreme Court in the Sirur Mutt's case, : 1SCR1005 was that none of the entries in List II or List III clothed the State Legislature with power to legislate on the topic of the tax in question and consequently it was beyond the power of the State legislature to make a law in that behalf. But this disability did not attach to the legislature of the Madras State in the year 1027 when Government of India Act, 1919 was in force. The distribution of legislative powers was made only for the first time in the Government of India Act, 1935 and this was carried with slight modifications into the Constitution. Therefore, the validity of a law made under the Government of India Act, 1919, cannot be tested in the light of the distribution of legislative powers as arranged in the various entries in the three lists which exhaustively enumerate the topics of legislation. The only relevant consideration in judging the constitutionality of an enactment made prior to the coming into force of either the Government of India Act, 1935 or the Constitution is whether at the relevant time it was competent for the legislature to make the law. There can be little doubt that in 1927, it was within the legislative sphere of the Madras Provincial State legislature to make a law providing for imposition of contribution. This position is not contested.
17. If that were so, there can be little doubt that Act II of 1927 continued to be in force till it was replaced by the new Act by reason of Article 372 of the Constitution which recites:-
'(1) Notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the Other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority.'
By force of this Article, Act II of 1927 continued to be in operation till the new Act came to be placed on the statute book. Of course, if the old Act was contrary to any of the provisions of the Constitution, such as Part III which confers fundamental rights on the citizens, it would be void and unenforceable. That this enactment does not violate any of the rights guaranteed by Part III does not admit of any doubt. That being the real position, there could be no obstacle in the way of the enactment continuing to be in operation till it was altered, repealed or amended by the Competent legislature. The old Act i.e., Act II of 1927, therefore, continued to be operative till the passing of Act XIX of 1951. There was also no hiatus as contended for by the learned counsel for the petitioner between the date of coming into effect of the Constitution and the passing of the new Act. So, Section 69 of Act II of 1927 under which power to demand contribution was derived is not open to challenge on grounds that were available in regard to Section 76 of the new Act. Hence, the doctrine of the Sirur Mutt's case, : 1SCR1005 does not really help the petitioner on this accept of the controversy.
18. It was next contended by Sri Rajah Ayyar that having regard to the provisions of Section 70 (A) of the old Act, contribution could be levied only for three faslis immediately preceding the fasli in which the demand was made and hence no contribution could be demanded from the petitioner for the succeeding years since no demand had been made subsequent to 1946. We cannot give effect to this contention, since this ground was not taken in the writ petition or even in the objections formulated by the petitioner before the Commissioner for the Religious and Charitable Endowments. This issue has to be decided with reference to the facts, namely, whether, in fact, a notice was issued to the petitioner requiring him to pay contribution subsequent to 1946 and the relevant facts are not before us which would enable us to adjudicate upon it. It is not as if this is a mere question of law. The decision of the issue turns on the facts which have to be investigated. We haw, therefore, to reject this contention.
19. Another argument advanced by the learned counsel for the petitioner is that notwithstanding Section 76-A, the claim for contribution for more than three faslis immediately preceding 1367 fasli in which the demand was made is unsustainable. According to the learned counsel the only import of Section 76-A is that in spite of the judgment of the Supreme Court invalidating Section 76 as it stood it was competent for the Commissioner to levy contribution but it did not nullify Section 79 which prescribed a period of limitation, namely, three years, to levy contribution. We are afraid that we cannot assent to this view. It is true that Section 79 (1) enacts that it shall not be competent for the Commissioner to levy any contribution for more than three faslis immediately preceding the fasli in which a notice of assessment is issued under Section 78. But this section is controlled by Section 76-A in so far as the contribution which relates to the period between the commencement of the present Act and the date of the amendment which created Section 76-A. This is abundantly clear from the non-obstante clause occurring in the latter part of Section 76-A. Section 76-A not being subject to Section 79 but on the other hand controls it in relation to the period mentioned above, it was open to the Commissioner to impose contribution for the relevant period. Section 76-A read in conjunction with Section 79 has kept the whole of the claim up to 1367 Fasli alive.
20. Sri Rajah Ayyar then fell upon the argument that, at any rate, so far as the claim for fasli 1367 is concerned, it had not arisen at the time of notice and consequently the Board could not seek to enforce it. In other words his stand is that so far as this fasli is concerned, the claim is too premature. We do not think that this argument is of any avail to the learned counsel. Whatever might have been the force of the contention in regard to fasli 1367 in 1958, having regard to the fact that four years have elapsed since 1958, the complaint that it is too premature loses all its force. At any rate, no effect will be given to it by this Court in exercise of its jurisdiction under Article 226 of the Constitution. It is not out of place to mention here that even this ground was not taken in the writ petition. It is unnecessary for us to pursue this subject any further. Suffice it to say that it was well within the powers of the Commissioner to issue a notice demanding contribution up to fasli 1367.
21. Sri Rajah Ayyar then contended that there could not be a consolidated demand for a number of years and it should be made annually. In our opinion, this contention is equally untenable. For one thing, this again is a new point conceived in the course of arguments and not mentioned in the writ petition. That apart, it is utterly inconsistent with the concept underlying Section 79, which authorises the Commissioner to levy contribution for more than three faslis. I this case, the notice shows that the contribution for each of the years is indicated.
22. Another aspect of the notice stressed upon by the learned counsel for the petitioner is that the rate of contribution as fixed by the Commissioner is contrary to the provisions of Section 76 and that under that Section it is only the Government that is empowered to fix the rate. We are afraid we cannot accede to this argument also as in regard to the other issues noticed above. No such complaint was made in the writ petition or even in the objections filed before the Commissioner.
23. Further, there is nothing on record to justify this contention. The only basis for the argument is Rule 2 of the rules made by the Government under Section 100 (2) (c). It is in these words: -
'(a) The assessment of contributions for every religious institution for each fasli year shall be made by the Commissioner on the basis of the income derived by it during the previous fasli year and also on the basis of the services rendered to that institution taking into consideration the administrative control exercised by the Commissioner, the Deputy Commissioner and the Assistant Commissioner under the Madras Hindu Religions and Charitable Endowments Act, 1951, (Madras Act XIX of 1951) and services rendered by the Inspectors to the institution in respect of it.
Provided that the amount so assessed shall not exceed five per centum of the income of the institution.'
The argument founded upon this rule is that since It has conferred authority on the Commissioner to fix the rate of contribution, the Commissioner must be deemed to have fixed the rate in the instant case. We do not think that the rule has the effect that is attributed to it. The maximum is prescribed by the Government and the Commissioner has to work out the contribution within that limit. Further, we are told by the learned Government Pleader that in this case, the Commissioner did not fix the rate of contribution. Be that as it may, this ground was not urged in the writ petition or even in the objections. As such, the relevant facts which could form, the basis of the objection have not been established and are not before us.
24. It was lastly maintained that the quantum of contribution was arbitrarily fixed by the Commissioner. This is also an unfounded complaint. It is to be gathered from the record that the efforts of the Commissioner to induce the petitioner to file statements of accounts or to produce account-books proved futile. It is also apparent from the objections filed by the petitioner that he did not question the figure indicated in the demand notice. Even in the order now impugned before us. It is pointed out that the petitioner failed to produce the accounts as laid down in the Hindu Religious and Charitable Endowments Act before the officers of the Department and that ha also failed to submit the income returns as promised by him which it was his obligation to produce under the rules. It is not disputed that an obligation is cast on the matadhipathi or trustee of a temple to submit to the Commissioner on or before 31st August in each fasli year 'a statement of receipt find charges for the previous fasli year under each budget head and a statement showing the amounts claimed as deductions under Rule 3 and the assessable income'. It is not pretended that the petitioner has complied with this rule.
25. Another pertinent consideration is that it was open to the petitioner to have this contribution revised by the Government having regard to Section 99, which confers revisional powers on the Government. However, having regard to the takes involved we think that the petitioner should be given another opportunity to place all the material before the Commissioner to enable him to determine the income of the institution which is exigible to contribution after taking into account the considerations contemplated by Rule 2 of the rules framed under the Act, provided that the petitioner pays a sum of Rs. 40,000/- (forty thousands) towards contribution on or before 31st December, 1962.
26. The question whether the Mutt ceased to be within the jurisdiction of the Commissioner by reason of the shifting of the Headquarters to the Mysore State alleged to have taken place after the decision of this Court in 1957, is left open for the reason that a suit has already been instituted (O. S. No. 4 of 1962) in the Subordinate Judge's Court, Adoni, which is pending disposal. In the circumstances, we do not propose to go into the controversy involved in that suit.
27. In other respects, the writ petition is dismissed with costs. Advocate's fee Rs. 250/- (two hundred and fifty only). C. M. P. No. 8065 of 1960 not pressed. Dismissed.