1. The petitioner who is a resident of Cuttack and is a tax-payer of various taxes levied by the State Government has filed this writ application under Article 226 of the Constitution for issuance of a writ of mandamus directing the State of Orissa to forbear from spending any amount from the public funds of the State for renovation of the tanks of Markanda, Narendra and Sweta-ganga at Puri. It is stated in the petition that these tanks are held in high reverence by the Hindu public who use then, for religious purposes and periodical religious rites of Lord Jagannath of Puri are performed there. Spending of money from out of the funds of the State for renovation of these tanks amounts to maintenance of the Hindu religion which is forbidden by Article 27 of the Constitution and it is consequently alleged that the State Government cannot incur the expenditure.
2. The State in its counter-affidavit contends that the tanks in question are used by the general public for bathing and drinking purposes. It was found that the tanks were in a state of disrepair and had become places for breeding of mosquitoes. Persistent complaints were received from the public for repair and improvement of the tanks and there was agitation against the inaction of Government in not repairing and renovating these tanks. The matter was discussed a meeting of the Lodging House Fund Committee at Puri and after discussion it was thought that the renovation of the aforesaid tanks would constitute improvement in the sanitary conditions of the above places. Thus to provide for better facilities for bathing and drinking water, the State Government decided to all some funds for renovation of these tanks. As the Puri Municipality which is virtually responsible for sanitation of the Puri town as well as to provide for better bathing facilities to various people residing and visiting the place had no sufficient funds to take up repair work of the tanks. Government allotted three lakhs of rupees to the Puri Municipality to repair the tanks. The Lodging House Fund Committee, Puri also sanctioned three lakhsof rupees for the purpose. These tanks are open for use by the public irrespective of caste or religion and consequentlyspending of money for renovation of these tanks does not constitute maintenance of any particular religion and is therefore not hit by Article 27 of the Constitution. It is lastly contended that the petitioner who is not compelled to pay any particular tax to be specifically appropriated for renovation of the tanks has no locus standi to file the petition.
3. In the long rejoinder filed by the petitioner to the counter-affidavit filed by the State, the specific averments made in paragraphs 7 and 8 of the counter-affidavit that the tanks in question are open for use by the general public is not specifically denied. In the rejoinder detailed reference is made to certain provisions of the Constitution which will be dealt with in due course.
4. Article 27 of the Constitution is in these terms :
'27. No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.'
The exact import of this article came to be considered by the Supreme Court in The Commr.. Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt (AIR 1954 SC 282). Mukherjea, J. who spoke for the Bench observed thus in paragraph 50 of the judgment:
'What is forbidden by the Article is the specific appropriation of the proceeds of any tax in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. The reason underlying this provision is obvious. Ours being a secular State and there being freedom of religion guaranteed by the Constitution, both to individuals and to groups, it is against the policy of the Constitution to pay out of public funds any money for the promotion or maintenance of any particular religion or religious denomination.'
This decision was approved by the Supreme Court in a later decision of the same year in Jagannath Ramanuj Das v. State of Orissa, AIR 1954 SC 400 and in a still later decision in Mahant Moti Das v. S. P. Sahi, AIR 1959 SC 942.
5. Before dealing with the several contentions raised on behalf of the petitioner it would be useful to make a brief reference to the procedure provided in the Constitution in respect of financial matters. Article 265 says that no tax shall be levied or collected except by authority of law. Article 266 provides that all revenues received by the Government of aState, all loans raised by that Government by the issue of treasury bills, loans or ways and means advances and moneys received by that Government in repayment of loans shall form one consolidated fund to be entitled 'the Consolidated Fund of the State', and that no moneys out of the consolidated fund of a State shall be appropriated except in accordance with law and for the purposes and in the manner provided in the Constitution. Article 267 provides for the creation of a Contingency Fund and Clause (2) thereof states that the Legislature of s State may by law establish, a Contingency Fund in the nature of an imprest to be entitled 'the Contingency Fund of the State' into which shall be paid from time to time such sums as may be determined by such law, and the said fund shall be placed at the disposal of the Governor of the State to enable advances to be made by him out of such fund for the purposes of meeting unforeseen expenditure pending authorisation' of such expenditure by the Legislature of the State by law under Article 205 or Article 206. Article 202 provides that the Governor shall in respect of every financial year cause to be laid before the Legislature of the State a statement of the estimated receipts and expenditure of the State for that year called the 'annual financial statement'. The estimates are to show separately the sums required to meet expenditure charged upon the Consolidated fund of the State and sums required to meet other expenditure proposed to be met from the consolidated fund of the State. Article 203 says that so much of the estimates as relate to expenditure charged upon the consolidated fund of a State shall not be submitted to the vote of the legislature, but estimates relating to other expenditure shall be submitted in the form of demands or grants to the Legislative Assemblv which shall have power to assent or to refuse to assent, to any demand, or to assent to any demand subject to a reduction of the amount specified therein. Article 204 provides that as soon as may be after the grants under Article 203 have been made by the Assembly, there shall be introduced a Bill to provide for the appropriation out of the Consolidated Fund of the State of all moneys required to meet (a) the grants so made by the Assembly; and (b) the expenditure charged on the Consolidated Fund of the State. Clause (3) of that Article lays down that subject to the provisions of Articles 205 and 206, no money shall be withdrawn from the Consolidated fund except under appropriation made by law passed in accordance with the provisions of Article 204. Article 205 which deals with supplementary, additional or excess grants, pro-vides that if the amount authorised by any law made in accordance with the provisions of Article 204 to be expended for a particular service for that vear is found to be insufficient for the purposes of that year or when a need has arisen during that year for supplementary or additional expenditure upon some new service not contemplated in the annual financial statement for that vear. or if anv money has been spent on any service during a financial year in excess of the amount granted for that service and for that year, the Governor shall cause to be laid before the Legislature another statement showing the estimated amount of that expenditure or a demand for such excess as the case may be, whereafter the provisions under Articles 202, 203 and 204 shall have effect in relation to anv such statement and expenditure or demand. Article 206 relating to votes on account, votes of credit and exceptional grants provides that the Legislative Assembly of a State shall have power to make any grant in advance in respect of the estimated expenditure for a part of any financial year pending the completion of the procedure prescribed in Article 203 for the voting of such grant and the passing of the a appropriation Act contemplated under Article 204 and also to any grant for meeting any unexpected demand upon the resources of the State when on account of the magnitude or the indefinite character of the service the demand cannot be stated with the details ordinarily given in an annual financial statement. It also empowers the legislature to make any exceptional grant which forms no part of the current service of any financial year. Article 282 which is important for the purpose of this case, authorises the State to make any grant for any public purpose, notwithstanding that the purpose is not one with respect to which the Legislature of the State may make laws.
6. Now coming to the merits of the several contentions raised on behalf of the petitioner, it is to be noted that what Article 27 of the Constitution prohibits is taxation or the specific appropriation of the proceeds of any tax for the promotion or maintenance of any particular religion or religious denomination. Unless, therefore, any particular religion or religious denomination is either promoted or maintained by any grant made by Government, this Article has no application. There is no dispute that taxes collected from the public have gone into the Consolidated Fund of the State and that out of the Consolidated Fund the grant has either been made or is going to be made for the purpose of renovation, of certain tanks in Purl town. The petitioner has filed in Court the report ofthe Special Officer under 'The Puri Shri Jagannath Temple Act' (Act XIV of 1952) from which it appears that the tanks in question, belong to the deity Shri Lord Jagannath. It is, therefore, argued by the learned Advocate for the petitioner that the grant by the State Government of a sum of money for the renovation of the tanks belonging to Lord Jagannath a Hindu deity amounts to promotion and maintenance of the Hindu religion. Although Lord Jagannath may be owner of the tanks, yet it is asserted in the counter-affidavit and not denied by the petitioner that these tanks are open for use by the general public for drinking and bathing purposes. It is further asserted that as these tanks were in a state of disrepair and had become breeding places for mosquitos, there was persistent demand from the public for repair and improvement of the tanks and consequently a grant of three lakhs of rupees was made by Government from out of the Consolidated Fund of the State to the Puri Municipality for the specific purpose of utilising the amount in renovation of the tanks. It cannot, therefore, be said in the circumstances stated above that by making the grant, the State was either promoting or maintaining the Hindu religion. A reference in this connection may be made to a decision of the Privy Council in Amulya Chandra Banerjee v. Corporation of Calcutta, AIR 1922 PC 333. In that case, the Corporation of Calcutta compulsorily acquired certain lands near the famous Kali temple of Calcutta for the purpose of constructing a Dharma-sala to accommodate the pilgrims visiting the temple. It was contended that the Dharmasala is excluded from the term 'public purpose' because the persons mainly interested would have been the worshippers of the temple. Their Lordships stated--
'What the municipality had to consider was not the religious beliefs and purposes of those assembling in such numbers, but what was the situation of the City in respect to this assemblage and to the citizens at large in view of the general questions of public convenience, proper sanitation, and the prevention of danger and disease. Any enlightened Municipality would carefully attend to these questions and endeavour to avoid the evils referred to. This is not to be ruled out by a consideration as to the particular form of belief or practice of those who would primarily benefit by the improvements made.'
In the well-known Shirur Mutt case, AIR 1954 SC 282 referred to above, one of the provisions in the Madras Hindu Religious and Charitable Endowments Act (Act 19 of 1951), the validity of which was ques-tioned was Section 76 providing for levy of a contribution of Maths and public temples. The levy of this contribution was objected on the ground that it offends Article 27 of the Constitution. Dealing with this part of the case, their Lordships stated--
'But the object of the contribution under Section 76 of the Madras Act is not the fostering or preservation of the Hindu relgion or any denomination within it. The purpose is to see that religious trusts and institutions, wherever they exist, are properly administered. It is a secular administration of the religious institutions that the legislature seeks to control and the object, as enunciated 'n the Act, is to ensure that the endowments attached to the religious institutions are properly administered and their income is duly appropriated for the purposes for which they were founded or exist. Thereis no question of favouring any particular religion or religious denomination in auch cases. In our opinion, Article 27 of the Constitution is not attracted to the facts of the present case.'
(Underlinings are ours). The same view was reiterated by the Supreme Court in the subsequent decision in AIR 1954 SC 400 referred to above. A decision which is somewhat similar on facts to our case is K. Raghu-nath v. State of Kerala, 1972 Ker LT 442 = (AIR 1974 Ker 48). On the night of 28th December, 1971, there were some unfortunate incidents at Tellicherry and the surrounding villages between two sections of the people, Hindus and Muslims, and as a result of which some shops. buildings and places of worship of both the sections were destroyed. The Government started relief measures and a am of Rs. 25,000 was sanctioned from the Distress Relief Fund for distribution of ad hoc grants to those who were rendered homeless and to those whose houses were damaged. Government passed an order to the following effect :
'Government order that the cost of repairs or reconstruction for the restoration to the condition existing prior to the incidents of religious and educational institutions and the houses of serving defence personnel damaged will be met by the Government.'
A tax-payer filed a writ challenging the validity of the grant on the ground that it was hit by Article 27. A Division Bench of the Kerala High Court rejected this contention making the observation--
'Even if the Distress Relief Fund is a fund constituted out of taxes collected by the Government and even if a 'specific appropriation' therefrom is possible, still there is the further question whetherthere is any promotion or maintenance of a particuar religion or religious denomination in this case. Houses, schools and places of worship belonging to both religious groups, Hindus and Muslims, were damaged, and in restoring them to their original condition, there is no question of promotion or maintenance of any particular religion or religious denomination, buildings of both sections are repaired and restored : it is not because the buildings belonged to a particular religious denomination that they are restored, but because they were damaged in the incidents. Even otherwise, we mean, even if places of worship belonging to one religious denomination alone were damaged and they alone are to be reconstructed, even then, there is no question of promotion or maintenance of that particular religion or religious denomination. If a mad and fanatic mob attacked only the places of worship of a particular religious denomination, then the restoration or reconstruction has necessarily to be of the places of worship of that particular religious denomination: still, there is no question of promotion or maintenance of that particular religion or religious denomination.'
We respectfully agree with the aforesaidobservations.
7. It was faintly suggested at the time of hearing that there is nothing on record to show that the amount of Rupees 3,00,000 granted for renovation of the tanks had been specifically voted by the Assembly and that consequently the expenditure is an unauthorised one. This being essentially a question of fact it required a specific pleading. No such plea was raised in the petition. The State had, therefore, no opportunity of meeting this challenge. Assuming for a moment that no provision had been made for this expenditure in the budget already passed by the Assembly, recourse can be had to Article 205(1)(a) of the Constitution. That Article specifically provides for cases where the need arises during the financial year for additional expenditure upon some new service not contemplated in the annual financial statement for that year.
8. It was then argued on behalf of the petitioner that even assuming that the tanks were in unhygienic condition and were a hazard to the sanitation of the town, the responsibility to remove the unhygienic condition rests on the Puri Municipality and that no money can be spent for that purpose from the consolidated fund of the State. There is absolutely no merit in this contention. Article 282 of the Constitution confers a very wide discretion on a State Government. It is for the State Government to decidewhat is a public purpose and what is not a public purpose. If the Government purports to spend money for a purpose which it characterises as a public purpose, though in point of fact it is not so, the proper place to criticise the action of the Government would be the Legislature or the Appropriation Committee. The court shall not be the forum in which Government's action can be criticised or restrained. The business of governing the State is entrusted by the Constitution to the executive Government. How to spend public monies is part of the executive functions of the Government and it is not permissible to the High Court to interfere with the powers of the Government in this respect under Article 226 of the Constitution.
9. In the result, the writ application fails and is dismissed, but in the circumstances, we make no order as to costs.
10. I agree.