T. Ramaprasada Rao, J.
1. His Holiness Sri Vanamamalai Ramanuja Jeer Swamigal, Head of Sri Vanamamalai Mutt, Nanguneri, Tirunelveli District, is the petitioner. Sri Vanamamalai Mutt is a well-known religious institution. The Tamil Nadu Hindu Religious and Charitable Endowments Act (XXII of 1959), hereinafter referred to as the Act, enables the Religious and Charitable Endowments Department, hereinafter called the Department, to levy contribution not exceeding seven per cent of the income of the Mutt as may be prescribed in respect of the services rendered by the Government and their officers and for defraying the expenses incurred on account of such services. Rules have been framed in G.O. No. 4920, Revenue, dated 30th November, 1960 and these rules are called the 'Assessment, Levy and Recovery of Contribution, Costs Rules'. Section 93 provides that notwithstanding anything contained in Sub-section (1) of Section 102, all costs, charges and expenses incurred by the Department as a party, to or in connection with, any legal proceeding in respect of any religious institution shall be payable out of the funds of such institution, except in cases where a liability to pay the same has been laid on any party or other person personally and the right to reimbursement under this section has been negatived in express terms. The rules enumerate the rates at which such contributions could be collected from all religious institutions, including mutts. Under the Rules, it is obligate: y on the part of the body in management and control of the institution to submit to the Commissioner of Endowments annually a statement showing the receipts and charges relating to the fasli year in question as also the expenditure etc., incurred, as set forth in Rule 4. If there is a failure in the matter of the submission of such statements, the commissioner may assess the income of such institution to the best of his judgment and the amount so assessed shall be deemed to be the income of the institution concerned within the meaning of Section 92 (1) of the Act. A provision is also made in Rule 9 to bring to assessment if there is an escapement of it. The period within which such escapement should be brought to book is fixed as five years. Section 94, while stating that the assessment of such contribution, costs, charges and expenses payable under Sections 92 and 93 shall be assessed on and notified to the trustee of the institution concerned in the prescribed manner, also enumerates the modes by which such amounts so assessed could be recovered. If there is a failure on the part of the person concerned, or the institution concerned to pay the amount as assessed, such amount shall be recovered as if it were an arrear of land revenue by invoking the jurisdiction of the Collector of the district and by setting in motion the provisions of Sub-sections (3) to (8) of Section 94. It is common grounds that for Sri Vanamamalai Mutt such levies for contribution were made for faslis 1374, 1375 and 1376. The petitioner, on a demand made for the purpose for such contribution for fasli 1374, objected by this petition dated 10th February, 1966 to the quantum of assessment. This objection was considered by the Commissioner and was rejected as the assessment was arrived at on the basis of the income derived during fasli 1373. As regards faslis 1375 and 1376, it is also common ground that when demands were raised for the respective faslis the petitioner did not prefer any objection as is contemplated in the Act and the Rules as above. But on 26th November, 1968, the petitioner objected to the demand of contribution and audit fee for faslis 1374, 1375 and 1376 and sought for a re-hearing and for a further scrutiny of the Mutt's accounts. The petitioner was informed that in so far as his objection for faslis 1374 was concerned it has become final and in respect of the demands for faslis 1375 and 1376 no objection having been preferred within the time prescribed, the assessments for the relative faslis have become final. The petitioner's further case is that the costs included in the challenged demand is not recoverable in law, while the case of the Department is that it is recoverable under the provisions of law. The Department's further case is that the challenged demand was raised after giving credit to the amounts paid by the Mutt and it also expressed in writing that it is willing to revise the demand if any further payments have been made and that the Tahsildar, who is the officer through whom the collection of contribution, audit fee, costs, etc., could be made as if it were an arrear of land revenue, will be informed accordingly.
2. In the counter-affidavit details are given as regards the quantum of demand made and the moneys paid by the Mutt, as also the details of expenditure incurred by the Department towards costs in Appeal No. 439 of 1961 on the file of this Court, toward which also recovery proceedings have been initiated. In a supplemental Counter-affidavit factually the Department justifies the percentage of the levy as prescribed under the Rules and would say that such contributions from religious institutions which were made from the inception and constitution of the Hindu Religious Endowments Boards in the year 1926 are not so disproportionate to the value of the services rendered by the department to the religious institutions as a whole. Therefore, the reasonableness of the fee so collected is also justified.
3. Mr. Rangaswami Iyengar for the writ petitioner would contend that as Mutts are treated on a par different from religious institutions as is seen from Sections 12, 21, 29, 44 and 59 of the Act, the general treatment accorded to other institutions ought not to be applied to Mutts as well and in that sense the contribution demanded under Sections 92 to 94 of the Act is not a fee and that the resultant process for collecting it is illegal. The second contention is that the levy of contribution on the basis of a named percentage relative to the income of a Mutt is an arbitrary scale appointed by the rule-making authority and hence the rules governing the situation are ultra vires. The next contention is that there is abundant available surplus in the fund in question and that itself is an indicia that the total fee collected under the head of 'contribution' is disproportionate to the cost of the services rendered by the Department towards all institutions including Mutts. It is also urged that the costs incurred by the Department in any litigation connected with a Mutt is also terminologically characterised as contribution and is recoverable under Section 93 of the Act as if it was contribution and the machinery to collect contribution can also be moved for collecting it as the costs incurred by the Department. In this sense it is said that this is in conflict with the generality of the provisions in the Code of Civil Procedure as in the Act of Parliament costs follow only the event and are not awarded as a matter of course. This conflict, therefore, when noticed, makes the provision for recovery of costs an unenforceable one. Lastly, it is said that there was no adequate opportunity to the Mutt to place all the relevant material before the authorities and establish that the quantum claimed is far excessive.
4. The learned Government Pleader, on the other hand, placed considerable reliance upon the decisions of the Supreme Court in H.H. Sudhindra Thirtha Swamiar v. Commissioner of Hindu Religious and Charitable Endowments, Mysore : AIR1963SC966 , Commissioner of Hindu Religious and Charitable Endowments, Mysore v. U. Krishna Rao : 2SCR917 and The Delhi Cloth and General Mills Company Ltd. v. The Chief Commissioner, Delhi : 2SCR348 besides referring to the Division Bench decision of our Court in Shri H.H. Sudhindra Thirtha Swamiar v. Commissioner of Hindu Religious and Charitable Endowments, Madras : AIR1956Mad491 and says that the contribution claimed by the statutory authorities in the instant case is a fee notwithstanding the fact that there is an element of compulsion in it. Regarding the submission that there is a conspicuous surplus in the fund it is said that with reference to statistics it is seen that over 46 years only a surplus of about 65 lakhs odd is available, meaning thereby that on the average there was only a surplus of about 11/2 lakhs per year. If once it is established that a major portion of the contribution collected is utilised for services rendered and towards audit fees, the observations of the Supreme Court in The Delhi Cloth and General Mills Company Ltd. v. The Chief Commissioner, Delhi : 2SCR348 , would govern if it has a nexus to the object for which the collection is made. On the question whether the entitlement of the Department to collect costs is violative of the common law of the country, it is said that in the instant case costs have been incurred by the Department when it initiated proceedings for framing a scheme for the Mutt in question, which is certainly a proceeding which was intended for the benefit of the institution. In that sense Section 93 of the Act which enables the Department to collect such costs is not in any way in conflict with any of the relevant provisions in the Code of Civil Procedure. Lastly it is said that the petitioner was given adequate opportunity to make his representations and he did not avail himself of the same. He cannot seek for such an opportunity once again at this stage. The rules framed are mandatory and the petitioner cannot have a grievance if he has not availed of the real purport of such rules by objecting to the demand in time.
5. No doubt, there are separate provisions in the Act which deal with mutts as such. But, as a 'religious institution' means a math, temple, or specific endowment within the meaning of Section 6 (18) of the Act, it is unnecessary to consider the specific provisions made in the Act in relation to Mutts as they are not necessary for purposes of this case. The question whether contributions levied on religious institutions, including Mutts, is in the nature of a tax or fee, need not at all detain us for the reason that the very question came up earlier before this Court and the Supreme Court. Claims towards audit fees in lieu of services rendered by the Department are not a tax but a fee. In Shri H.H. Sudhindra Thirtha Swamiar v. Commissioner of Hindu Religious and Charitable Endowments, Madras : AIR1956Mad491 , Section 76 (1) of Act XIX of 1951 which is equivalent to Section 92 of the present Act, has been held to be intra vires as what it purports to levy is only a fee and not a tax. But Mr. Rangaswami Iyengar wants to take advantage of certain observations made by Rajagopalan, J., in that case, which is to the effect that the rate of fee chargeable under the relevant sections in the Act should be reduced to maintain a just relation between fee levied and the services rendered though an arithmetical precision is neither possible nor necessary. It is in this context the unreasonableness of the percentage of the levy is pressed into service. I shall refer to it sometime later.
6. Again in H.H. Sudhindra Thirtha Swamiar v. Commissioner for Hindu Religious and Charitable Endowments, Mysore : AIR1963SC966 , the Supreme Court held:
The annual contributions levied under the amended Section 76 (1) of Act (XIX of 1951) go into a separate fund and not the consolidated fund of the State and are earmarked for defraying the expenses for rendering services they are not even payable to the Government but are payable to the Commissioner and they are levied not as a tax but only as fee. A fee does not cease to be of that character merely because there is an element of compulsion in it, nor is it a postulate of a fee that it must have direct relation to the actual service rendered. Absence of uniformity is not a criterion on which alone it can be said that the levy is of the nature of a tax. The Legislature has power to enact appropriate retrospective legislation declaring these levies as fees by denuding them of the characteristics of tax.
In Commissioner of Hindu Religious and Charitable Endowments, Mysore v. U. Krishna Rao : 2SCR917 , the general rules prescribing the levy of fee in the earlier Act were held to be sufficient and in that context the Supreme Court said:
Under the Act a fee though levied for rendering services of a particular type is not to be correlated to the services performed for each individual who is intended to obtain the benefit of the services. The correlation must be between-the expenses incurred by the authority levying the fee for generally providing the service and the aggregate of the levy from persons who are to be made subject thereto. It is a necessary corollary that under the Act general rules prescribing the levy of fee from religious endowments have to be made, and not rules governing individual endowments. If services are provided, assuming that a particular institution either does not need the services, or does not obtain the benefit of the services, the contribution would still be recoverable.
The above principle is reiterated by the Supreme Court, though in a different context, in The Delhi Cloth and General Mills Company Limited v. The Chief Commissioner, Delhi : 2SCR348 . This case arose under the Factories Act. While considering the provisions of the Factories Act and the Delhi Factories Rules which prescribed the rate of such levy the Supreme Court said:
A levy in the nature of a fee does not cease to be of that character merely because there is an element of compulsion or coerciveness present in it, nor is it a postulate of a fee that it must have direct relation to the actual services rendered by the authority to individual who obtains the benefit of service. If with a view to provide a specific service, levy is imposed by law and expenses for maintaining the service are met out of the amounts collected there being a reasonable relation between the levy and the expenses incurred for rendering the service, the levy would be in the nature of a fee and not in the nature of a tax.
8. There is, therefore, ample authority for the proposition that the contribution and audit fee demanded by the Department is legal and is sustainable in the eye of law as it is not a tax. The only test it should satisfy is that under the garb of collecting a fee, the Department should not collect exorbitant amounts which are absolutely unrelated or disproportionate to the services rendered by it to the relative institution as a whole. As already stated, it is not the service to a particular Mutt or institution that comes into judicial verdict for purposes of weighing the reasonableness or other wise of such a fee. So long as the amounts collected by way of contribution, audit fee, costs, etc., are all pooled up in a particular fund which is to be utilised for purposes of rendering service to all the religious institutions in the State without any discrimination whatsoever then the only question is whether the totality of the collections made through a period gives the impression that it was only for aggrandizing the fund as such and such amounts so collected are so disproportionate to the nature, quality and character of services rendered to the institution.
9. It is in this context the second contention of the learned Counsel has to be considered. Mr. Rangaswami Iyengar would say that a uniform percentage on the basis of the income of the Mutt would lead to hardship and the hardship, if so unreasonable with the situation, projects an illegality. Further, it is said that the observations of the Division Bench of this Court in Shri H.H. Sudhindra Thirtha Swamiar v. Commissioner of Hindu Religious and Charitable Endowments, Madras : AIR1956Mad491 , would support his contention. No doubt, if unreasonableness is writ large on the face of the levy our Court has expressed the opinion that it would be unreasonable to uphold the same. We have already noticed that a separate fund has been created by the Department in which it pooled all the levies and fees collected from the various religious institutions and Mutts. From this repository moneys are expended towards religious causes and for the improvement of the various institutions in the State of Tamil Nadu. The statistics furnished by the Department in the counter-affidavit establishes that for over 46 years, there has been an accumulated surplus of about Rs. 65,00,000 which means that for the entire State, there was an average available surplus of rupees one and a half lakhs in the Commissioner's fund. This aspect taken in juxtaposition to the amounts expended year after year towards the betterment of the religious institutions and the Mutts, which is well over 60 per cent of the collections made, establishes that there is a 'just relation' between the fee levied and the se: vices rendered. Rajagopalan, J., in the Madras case also conceded the proposition that an arithmetical position is neither possible nor necessary in the matter of the understanding of the 'just relation ' between the fee levied and the services rendered. There is enough material before me as is seen from the counter-affidavits filed by the Government to come to the reasonable conclusion that though the percentage has an impact on the income of a Mutt or an institution, it cannot be objectively badged as an arbitrary levy and in that behalf the rule framed for the purpose has to be struck down as being ultra vires. The rules framed under Sections 92 and 94 of the Act under G.O. Ms. No. 4920, Rev., dated 30th November, 1960 no doubt fixes a percentage of levy on the basis of the annual income of the religious institutions. It is not the pattern of assessment that has to be mainly considered to find out whether the levy is reasonable or not, the entire process and the resultant achievement should enter into the computation and it has to be adjudged later whether the resultant of the process has any nexus to the object with which this levy or assessment is imposed under the Act. From the hypothesis furnished, it cannot be said that the contribution is out of all proportion to the services rendered by the Department. In fact in the Delhi Cloth and General Mills Company Limited v. The Chief Commissioner, Delhi : 2SCR348 , which has already been referred to it has been held that if 60 percent of a fund is utilised for the purpose for which it is created, then, it cannot be said to be wholly unrelated to the object of the levy. Following this and from the analytical data furnished by the Department regarding the collections and the expenses towards the services rendered, the levy, though based on a percentage of the income of a Mutt or the institution cannot be said to be unreasonable. So long as the object of the levy is borne in mind and the fund collected for the purpose is to a considerable extent utilised for purposes of achieving the object, then, there is considerable nexus between the object and the levy. If such a nexus is proved by facts, then the rule, which enables the Department to levy varied percentage of fee with reference to the income of the Mutt or institution, cannot prima facie be held to be ultra vires of the rule-making authority. As I said already, the yardstick used should not be adjudged literally and out of context of relevant events. I am, therefore, of the view that the second contention of Mr. Rangaswami Iyengar that the percentage of levy is arbitrary and the concerned rule sanctioning such levy is ultra vires, is not sustainable.
10. The next contention is akin to the second contention. A reference is made to the available surplus as on date in the fund in question and it is argued that that by itself is sufficient to show that the contributions are disproportionate to the costs and the services rendered by the department. Here again there is fallacy. The surplus shown has been accumulated for a period of three decades and more. The average available surplus is about rupees one and a half lakhs. On the average more than 60 per cent of the collections are spent towards the general improvement of the funds and the Mutts. There is also a scheme in contemplation by the Department, for the diversion of the available surplus; for utilisation for the purposes mentioned in Section 66 of the Act, for contribution to the Poombuhar College of Indian Culture and the Parasakthi College for Women at Courtallam, which are run under the auspices of the Department, for the renovation of the Auvudaiyar Koil in Thanjavur, which is a renowned temple, for inter-State apportionment of the surplus funds consequent or the reorganisation, for improvement of the properties of the temple for augmenting the income etc. Thus, it cannot be said that the available surplus, though considerable, is because of non-rendering of the necessary services by the Department to the institutions in general. I am unable to agree with Mr. Rangaswami Iyengar that the statistics, which reflect the surplus in the fund, is by itself an indication to show that the contributions collected over a number of years is disproportionate to the costs incurred by the Department in rendering the services.
11. The next contention is that the provision for recovery of costs in this State enactment would conflict with the rational provision in the Code of Civil Procedure in which costs ordinarily follow the event. Here again, the learned Counsel has ignored the parenthesis in Section 93, which provides that in cases where a liability to pay the costs and expenses has been laid on any party or other person personally and the right to reimbursement under this section has been negatived in express terms, Section 93 would have no application. In normal cases where costs and expenses have been incurred by the Department in connection with any legal proceeding in respect of a religious institution, such costs and expenses shall be payable out pf the funds of the institution. Under Section 94 such costs recoverable under Section 93 is placed on a par with contribution recoverable under Section 92 and the process of recovery is made the same for both. It is, therefore, fallacious to contend that there is a conflict between the Act as a local Act and the Code of Civil Procedure as an act of Parliament in the matter of the recovery of costs and expenses. There is a special provision in the Act for the reimbursement of such costs and expenses by the Department and that too by the authority of statute law. There is nothing illegal or surprising about this. As a matter of fact, the costs in the instant case have been incurred, when the department filed a civil proceeding for framing a scheme for the Vanamamalai Mutt. It is only to reimburse themselves with the costs and expenses incurred therefor that a demand has been raised which is not only permissible under the specific statute but which should also be held to bear equitable provision since the Mutt in question had the benefit of such a civil proceeding. Having regard to the pronouncement of the Supreme Court already referred to, I am unable to hold that the fee levied in the instant case is an unreasonable one and has the badge of arbitrariness in it and that the costs and expenses which are also the subject-matter of the impugned demand, cannot be added on and included in it.
12. The last contention of the Counsel for the petitioner is that there was no adequate opportunity to the Mutt to establish its case by making representations against the demand. This appears to be factually incorrect. For Fasli 1374 when a demand was made, the petitioner did file its objections which were considered by the Commissioner and rejected by him. The demand for contribution and audit fees for Fasli 1374 has thus become final and conclusive. As regards Fasli 1375 and 1376, the Mutt did not prefer any objections at all. Therefore, the Department cannot be blamed, if they invoked Rule 6 of the rules which enables the Commissioner to assess the income of the institution to the best of his judgment and thereafter impose the levy as above in accordance with the Act and the rules framed thereunder. I am unable to agree with the learned Counsel for the petitioner that no full opportunity was given to the petitioner to oppose the levy by placing the necessary material before the Commissioner. The petitioner cannot take advantage of his own laches. The petitioner did not object in time. The rules prescribed a time. After the expiry of the prescribed period, the Commissioner, has no option except to assess the income by the best judgment method. This he did for Faslis 1375 and 1376. The petitioner, therefore, cannot complain that in the instant case, the principles of natural justice have been violated.
13. As I am unable to agree with the contentions of the learned Counsel for the petitioner and as the relief asked for is one to direct the respondent to forbear from levying any contribution or audit fees under Section 92 of the Act or to take coercive process in respect of the same, I am unable to grant the same. There has not been any violation of any public duty on the part of the respondent when it levied the fee in accordance with the Act and in accord with the prescribed scale and also when it invoked Section 94 of the Act in default of payment of the demanded amount.
14. The writ petition, therefore, fails and the same is dismissed, but in the peculiar circumstances, there will be no order as to costs.