Input:
Appeal No. 25 of 1952.
Appeals from the Judgment and Order dated the 10th day of January, 1952, of the High Court of Judicature of Travancore Cochin at Ernakulam (Kunhiraman C.J. and Subra mania Iyer J.) in Original Petitions Nos. 4, 23and 24 of 1951 respectively.
T.N. Subramania Iyer, Advocate General of Travancore Cochin, (T.R. Balakrishna lyer and M.R. Krishna Pillai, with him) for the State of Travancore Cochin.
N.C. Chatterjee (C.R. Pattabhirarnan, with him) for the respondent in Civil Appeal No. 25 of 1952.
C. R. Pattabhiraman for the respondent in Civil Appeal No. 28 of 1952.
N.C. Chatterjee '(Thomas Vellappally, with him) for the respondent in Civil Appeal No. 29 of 1952.
M. C. Setalvad, Attorney General for India, and C.K. Daphtary, Solicitor General of India (G.N. Joshi, with them) for the Union of India.
October 16.
The Judgment of the Court was delivered by PATANJALI SASTRI C.J.
These are connected appeals from the judgment and order of the High Court of Travancore Cochin quashing the assessments under the United State of Travancore and Cochin Sales Tax Act (No. 11 of 1125 M.E.) (hereinafter referred to as "the Act") on the respond ents on the turnover of the sales of the commodities (coif products in C.A. 25, lemon grass oil in C.A. 28 and tea in C.A. 29) in which they respectively deal.
The dealings followed more or less the same pattern in all the cases and consisted of export sales of the respec tive commodities to foreign buyers on c.i.f. or f.o.b. terms as the case may be.
The respondents in each case claimed exemption from assessment in respect of the sales effected by them on the ground, inter alia, that such sales took place "in the 'course of the export of the goods out of the territory of India" within the meaning of article 1115 286(1) (b) of the Constitution.
The Sales Tax Authorities rejected the contention as, in their view, the sales were completed before the goods were shipped and could not, therefore, be considered to have taken place in the course of the export.
Thereupon the respondents by separate petitions applied to the High Court of the United State of Travancore and Cochin (hereinafter referred to as the State) under article 226 of the Constitution for issue of writs of certiorari and prohibition quashing the assessments made On them and pro hibiting such assessment in future.
The applications were heard, along with nine other applications for similar re liefs by dealers in cashew nuts, by a Division Bench (Kunhi raman C.J. and Subramania Iyer J.) who upheld the claim of exemption and quashed the assessment orders in respect of the transactions subsequent to the commencement of the Constitution.
From that decision the State has preferred appeals in all the cases on a certificate granted by the High Court under article 132 (1) of the Constitution.
As the appeals involved important questions of law which may have a bearing on the sales tax legislation of the various States in India, this Court directed notice of these proceedings to the Attorney General for India and the Advo cates General of those States, and they have intervened and participated in the debate at the hearing of these appeals.
When the argument had proceeded for some time, it was discovered that the material facts relating to the course of dealings in cashew nuts, which were more complex in charac ter, had not been clearly ascertained and consequently the relative appeals were remitted to the High Court for find ings on certain points agreed upon by the parties.
These three appeals were, however, fully heard as they were found to admit of disposal on the materials on record.
Article 286(1), on which the respondents found their claim to exemption, runs thus: 1116 No law of a State shall impose, or authorise the imposi tion of, a tax on the sale or purchase of goods where such sale or purchase takes place.
(a) outside the State; or (b) in the course of the import of the goods into, or export of the goods out of, the territory of India.
Explanation.
For the purposes of sub clause (a), a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consump tion in that State, notwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in another State.
On the scope and meaning of clause (b), the learned Judges expressed their view as follows : "The words 'in the course of ' make the scope of this clause very wide.
It is not restricted to the point of time at which goods are imported into or exported from India.
The series of transactions which necessarily precede export or import of goods will come within the purview of this clause.
Therefore, while in the course of that series of transactions, the sale has taken place, such a sale is exempted from the levy of sales tax.
The sale may have taken place within the boundaries of the State.
Even then sales tax cannot be levied if the sale had taken place while the goods were in the course of import into India or in the course of export out of India.
We are stressing this point because both parties in what we may describe as the cashew nut cases entered into a lengthy discussion as to the exact point of time when the sale became completed and as to the exact place where the goods were when the sale became a completed transaction.
" On this interpretation, local purchases "made for the purpose of export" were held by the learned Judges to be "integral parts of the process of exporting".
In support of this construction the learned Judges referred 1117 to the debates in the Constituent Assembly on clause 264 A of the draft Constitution which corresponded to article 286 and quoted from the speech of one of the members who unsuc cessfully moved an amendment defining export as meaning the last transaction and import as meaning the first transac tion.
In view of the wide construction thus placed upon clause (b) of article 286 (1), the arguments before us ranged over a large field, and as many as four different views as to its scope and meaning were pressed upon us for our acceptance : (1) The exemption is limited to sales by export and purchases by import, that is to say, those sales and pur chases which occasion the export or import as the case may be, and extends to no other transactions however directly or immediately connected, in intention or purpose, with such sales or purchases, and wheresoever the property in the goods may pass to the buyer.
This is the view put forward on behalf of the State of Madras.
The Advocate General thought that a State could not impose sales tax though title passed within State limits while the goods were still under trans port on the high seas and no question of exemption could therefore arise.
He said, however, that no such ease had actually arisen.
(2) In addition to the sales and purchases of the kind described above, the exemption covers the last purchase by the exporter and the first sale by the importer, if any, so directly and proximately connected with the export sale or import purchase as to form part of the same transaction.
This view was sponsored ' by the Attorney General who was also inclined to think, as advised at the moment, that sales or purchases made while the goods were on the high seas would be exempt, but he would prefer not to go into the wider question, because, whatever view was taken, sales such as those involved in the present cases must, in any event, be exempt.
(3) The exemption covers only those sales and purchases under which the property in the goods 1118 concerned is transferred from the seller to the buyer during the course of the transit, that is, after the goods begin to move and before they reach their foreign destination.
This view is supported by the State of Bombay and certain other States.
(4) The view which found favour with the learned Judges of the High Court in the passage already extracted.
It will be seen that the construction first mentioned is the narrowest and the last mentioned the widest.
We are clearly of opinion that the sales here in ques tion, which occasioned the export in each case, fall within the scope of the exemption under article 286(1)(b).
Such sales must of necessity be put through by transporting the goods by rail or ship or both out of the territory of India, that is to say, by employing the machinery of export.
A sale by export thus involves a series of integrated activi ties commencing from the agreement of sale with a foreign buyer and ending with the delivery of the goods to a common carrier for transport out of the country by land or sea.
Such a sale cannot be dissociated from the export without which it cannot be effectuated, and the sale and resultant export form parts of a single transaction of these two integrated activities, which together constitute an export sale, whichever first occurs can well be regarded as taking place in the course of the other.
Assuming without deciding that the property in 'the goods in the present cases passed to the foreign buyers and the sales were thus completed within the State before the goods commenced their journey as found by the Sales Tax Authorities, the sales must, never theless, be regarded as having taken place in the course of the export and are, therefore, exempt under article 286(1)(b).
That clause, indeed, assumes that the sale had taken place within the limits of the State and exempts it if it took place in the course of the export of the goods concerned.
In the foregoing discussion we have assumed that the word "sale" used in the Constitution has the same 1119 meaning as in the law relating to the sale of goods, but it has been suggested in the course of the argument that it imports a wider concept than the passing of title from the seller to the buyer which under that law is determined by highly technical rules based upon the presumed intention of the parties and liable to be displaced by their expressed intention.
We leave the point open as it is unnecessary for the purpose of these appeals to pronounce any opinion upon it.
It was said that, on the construction we have indicated above, a "sale in the course of export" would become practi cally synonymous with "export", and would reduce clause (b) to a mere redundancy, because article 246 (1), read with entry 83 of List I of the Seventh Schedule, vests legisla tive power with respect to "duties of customs including export duties" exclusively in Parliament, and that would be sufficient to preclude State taxation of such transactions.
We see no force in this suggestion.
It might well be argued, in the absence of a provision like clause (b) prohibiting in terms the levy of tax on the sale or purchase of goods where such sales and purchases are effected through the machinery of export and import, that both the powers of taxation, though exclusively vested in the Union and the States re spectively, could be exercised in respect of the same sale by export or purchase by import, the sales tax and the export duty being regarded as essentially of a different character.
A similar argument induced the Federal Court to hold in Province of Madras vs Boddu Paidanna and Sons(1) that both central excise duty and provincial sales tax could be validly imposed on the first sale of groundnut oil and cake by the manufacturer or producer as "the two taxes are economically two separate and distinct imposts".
Lest similar reasoning should lead to the imposition of such cumulative burden on the export import trade of this country which is of great importance to the nation 's economy, the Constituent Assembly may well have thought it necessary to exempt (1) 1120 in terms sales by export and purchases by import from sales tax by inserting article 286 (1) (b) in the Constitution.
We are not much impressed with the contention that no sale or purchase can be said to take place "in the course of" export or import unless the property in the goods is transferred to the buyer during their actual movement, as for instance, where the shipping documents are indorsed and delivered within the State by the seller to a local agent of the foreign buyer after the goods have been actually shipped, or where such documents are cleared on payment, or on acceptance, by the Indian buyer 'before the arrival of the goods within the State.
This view, which lays undue stress on the etymology of the word "course" and formulates a mechanical test for the application of clause(b), places, in our opinion, too narrow a construction upon that clause, in so far as it seeks to limit its operation only to sales and purchases effected during the transit of the goods, and would, if accepted, rob the exemption of much of its useful ness.
We accordingly hold that whatever else may or may not fall within article 286 (1) (b), sales and purchases which themselves occasion the export or the import of the goods, as the case may be, out of or into the territory of India come within the exemption and that is enough to dispose of these appeals.
Our attention was called, in the course of the debate, to various American decisions which hold that the power "to regulate" inter State commerce vested exclusively in the Congress by article 1 section 8(3) of the American Constitu tion (the Commerce clause) excludes by implication the States ' power of taxation only when the goods enter "the export.
stream", and until then such goods form part of "the general mass of property in the State" subject, as such, to its jurisdiction to tax, and that this principle was also applicable to cases arising under article 1 section 9(5) and section 10(2) (the Import Export clause), [see e.g., Empresa Siderurgica vs Merced Co.(1)].
These clauses (1) ; 1121 are widely different in language, scope and purpose, and a varying body of doctrines and tests have grown around them interpreting, extending or restricting, from time to time, their operation and application in the context of the ex panding American commerce and industry, and we are of opin ion that not much help can be derived from them in the solution oil the problems arising under article 286 of the Indian Constitution.
It remains only to point out that the use made by the learned Judges below of the speeches made by the members of the Constituent Assembly in the course of the debates on the draft Constitution is unwarranted.
That this form of ex trinsic aid to the interpretation of statutes is not admis sible has been generally accepted in England, and the same rule has been observed in the construction of Indian stat utes see Administrator General of Bengal vs Prem Nath Mallick(1).
The reason behind the rule was explained by one of us in Gopalan 's case(2) thus : "A speech made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental process lying behind the majority vote which carried the bill.
Nor is it reasonable to assume that the minds of all those legislators were in accord," or, as it is more tersely put in an American case "Those who did not speak may not have agreed with those who did; and those who spoke might differ from each other United States vs Trans Missouri Freight Association(3). ' ' This rule of exclusion has not always been adhered to in America, and sometimes distinction is made between using such material to ascertain the purpose of a statute and using it for ascertaining its meaning.
It would seem that the rule is adopted in Canada and Australia see Craies on Statute Law, 5th Ed., p. 122.
(1) (895) 22 I.A. Io7,118.
(2)[1950] S.C.R.88.
(3) 169 U.S.290,318.
144 1122 In the result, agreeing with the conclusion of the High Court, though on different grounds, we dismiss the appeals with costs.
Appeals dismissed.
Agent for the respondent in C.A. No. 25 of 52: M.S.K. Sastri.
Agent for the respondent in C.A. No. 28 of 52: Sardar Bahadur.
Agent for the respondent in C.A. No. 29 of 52: V.P.K. Nambiyar.
Agent for the Interveners (Union of India, State of Bombay, State of Madras, State of Hyderabad, State of Punjab, State of MysOre, and State of Orissa): P.A. Mehta.
Agent for the State of Uttar Pradesh: C.P. Lal.

Output:
Whatever else may or may not fall within article 286 (1) (b) of the Constitution, sales and purchases which themselves occasion the export or the import of the goods as the case may be, out of or into, the territory of India come within the exemption.
The view that no sale or purchase can be said to take place in the course of export or import unless the property in the goods is transferred to the buyer during their actual move ment, as instance, where the shipping documents ,are in dorsed and delivered within the State by the seller to a local agent of the foreign buyer after the goods have been actually shipped or where such documents are cleared on payment, or on acceptance, by the Indian buyer before the arrival of the goods within the State, puts too narrow a construction upon article 286 (1)(b) and is not correct.
A sale by export involves a series of integrated activi ties commencing from the agreement of sale with a foreign buyer and ending with the delivery of the goods to a common carrier for transport out of the country by land or sea.
Such a sale cannot be dissociated from the export without which it cannot be effectuated and the sale and 'the result ant export form parts of a single transaction.
Of these two integrated activities which together constitute an export sale, whichever first occurs can well be regarded as taking place in the course of the other.
Even in cases where the property in the goods passed to the foreign buyers and the sales were thus completed, within the State before the goods commenced their journey from the State, the sales must be regarded as having taken place in the course of the export and therefore exempt under article 286 (1) (b).
The Commerce clause (article 1, section 8 (3)) and the Import Export clauses [article I, sections9 (5) and 10 (2)] of the American Constitution are widely different in lan guage, scope and purpose, and a varying body of doctrines and tests have grown around them interpreting, extending or restricting from time to time, their operation and applica tion in the context of the expanding American commerce and industry and much help cannot be derived from them in the solution of the problems arising under article 286 of the Indian Constitution.
Speeches made by the members of the Constituent Assembly in the course of the debates on the draft Constitution cannot be used 'as aids for interpreting the Constitution.
Administrator General of Bengal vs Prem Nath Mullick [22 I.A. 107 at 118], A.K. Gopalan vs The State [(1950) S.C.R. 88], United States vs Trans Missouri Freight Association at 318] referred to.
143 1114


Input:
Appeal No. 650 of 1957.
Appeal from the judgment dated July 13, 1956, of the Patna High Court in Miscellaneous Judicial Case No. 665 of 1954.
R. Ganapathy Iyer and R. H. Dhebar, for the appellant.
A. V. Viswanatha Sastri and R. C. Prasad, for the respondent.
November 29.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
This is an appeal by the Commissioner of Income tax with a certificate against the judgment and order of the High Court at Patna answering two questions of law referred to it under section 66(1) of the Income tax Act by the Tribunal, in the negative.
Those questions were: "(1) Whether in the circumstances of the case assessment proceedings were validly initiated under section 34 of the Indian Income tax Act? (2) If so, whether in the circumstances of the case the amount received from interest on arrears of agricultural rent was rightly included in the income of the assessee ?" The assessee, the Maharaja Pratapsingh Bahadur of Gidhaur, had agricultural income from his zamindari for the four assessment years 1944 45 to 1947 48.
In assessing his income to income tax, the authorities did not include in his assessable income interest received by him on arrears of rent.
This was presumably so in view of the decision of the Patna High Court.
When the Privy Council reversed the view of law taken by the Patna High Court in Commissioner of Income tax vs Kamakhya Narayan Singh (1), the Income tax Officer issued notices under section 34 of the (1) 762 Indian Income tax Act for assessing the escaped income.
These notices were issued on August 8, 1948.
The assessments after the returns were filed, were completed on August 26, 1948.
Before the notices were issued, the Income tax Officer had not put the matter before the Commissioner for his approval, as the section then did not require it, and the assessments were completed on those notices.
Section 34 was amended by the Income tax and Business Profits Tax (Amendment) Act, 1948 (No. 48 of 1948), which received the assent of the Governor General on Sep tember 8, 1948.
The appeals filed by the assessee were disposed of on September 14 and 15, 1951, by the Appellate Assistant Commissioner, before whom no question as regards the validity of the notices under section 34 was raised.
The question of the validity of the notices without the approval of the Commissioner appears to have been raised before the Tribunal for the first time.
In that appeal, the Accountant Member and the Judicial Member differed, one holding that the notices were invalid and the other, to the contrary.
The President agreed with the Accountant 'Member that the notices were invalid, and the assessments were ordered to be set aside.
The Tribunal then stated a case and raised and referred the two questions, which have been quoted above.
The High Court agreed with the conclusions of the majority, and the present appeal has been filed on a certificate granted by the High Court.
Section 34, as it stood prior to the amendment Act No. 48 of 1948, did not lay any duty upon the Income tax Officer to seek the approval of the Commissioner before issuing a notice under section 34.
The amending Act by its first section made sections 3 to 12 of the amending Act retrospective by providing "sections 3 to 12 shall be deemed to have come into force on the 30th day of March, 1948. .
Section 8 of the amending Act substituted a new section in place of section 34, and in addition to textual changes with which we are not concerned, also added a proviso to the following effect : "Provided that 763 (1) the Income tax Officer shall not issue a notice under this sub section unless he has recorded his reasons for doing so and the Commissioner is satisfied on such reasons that it is a fit case for the issue of such notice.
" The question is whether the notices which were issued were rendered void by the operation of this proviso. ' The Commissioner contends that section 6 of the , particularly cls.
(b) and (c) saved the assessments as well as the notices.
He relies upon a decision of the Privy Council in Lemm vs Mitchell (1), Eyre vs Wynn Mackenzie (2) and Butcher vs Henderson (3) in support of his proposition.
The last two cases have no bearing upon this matter; but strong reliance is placed upon the Privy Council case.
In that case, the earlier, action which had been commenced when the Ordinance had abrogated the right of action for criminal conversation, had already ended in favour of the defendant and no appeal therefrom was pending, and it was held that the revival of the right of action for criminal conversation did not invest the plaintiff with a right to begin an action again and thus expose the defendant to a double jeopardy for the same act, unless the statute expressly and by definite words gave him that right.
The Privy Council case is thus entirely different.
No doubt, under section 6 of the it is provided that where any Act repeals any enactment, then unless a different intention appears, the repeal shall not affect the previous operation of any enactment so repealed or anything duly done thereunder or affect any right, obligation or liability acquired, accrued or incurred under any enactment so repealed.
It further provides that any legal proceedings may be continued or enforced as if the repealing Act had not been passed.
Now, if the amending Act had repealed the original section 34, and merely enacted a new section in its place, the repeal might not have affected the operation of the original section by virtue of section 6.
But the amending Act goes further than this.
It (1) ; (2) (3) 764 repeals the original section 34, not from the day on which the Act received the assent of the Governor General but from a stated day, viz., March 30, 1948, and substitutes in its place another section containing the proviso above mentioned.
The amending Act provides that the amending section shall be deemed to have come into force on March 30, 1948, and thus by this retrospectivity, indicates a different intention which excludes the application of section 6.
It is to be noticed that the notices were all issued on August 8, 1948, when on the statute book must be deemed to be existing an enactment enjoining a duty upon the Income tax Officer to obtain prior approval of the Commissioner, and unless that approval was obstained, the notices could not be issued The notice were thus invalid.
, The principle which was applied by this Court in Venkatachalam vs Bombay Dyeing & Mfg. Co. Ltd. (1) is equally applicable here.
No question of law was raised before us, as it could not be in view of the decision of this Court in Narayana Chetty vs Income tax Officer (2), that the proviso was not mandatory in character.
Indeed, there was time enough for fresh notices to have been issued, and we fail to see why the old notices were not recalled and fresh ones issued.
For these reasons, we are in agreement with the High, Court in the answers given, and dismiss this appeal with costs.
A appeal dismissed.

Output:
The appellant who had agricultural income from his Zamindari was assessed to income tax for the four assessment years, 1944 45, to 1947 48.
The income tax authorities did not include in his assessable income, interest received by him on arrears of rent, in view of a decision of the Patna High Court, but subsequently this view of law was reversed by the Privy Council.
On August 8, 1948, the Income tax Officer issued notices under section 34of the Indian Income tax Act, 1922, for assessing the escaped income.
Before the notices were issued the Income tax Officer had not put the matter before the Commissioner for his approval as the section then did not require it and the assessments were completed on those notices.
In the meantime, certain amendments were made to the Indian Income tax Act by Act 48 of 1948, which received the assent of the Governor General on September 8, 1948.
The Amending Act substituted a new section in place of section 34, which among other changes, added a proviso to the effect that "the Income tax Officer shall not issue a notice. unless he has recorded his reasons for doing so and the Commissioner is satisfied on such reasons that it is a fit case for the issue of such notice", and also made it retrospective by providing that the new section "shall be deemed to have come into force on the 30th day of March, 1948".
The question was whether the notices issued by the Income tax Officer on August 8, 1948, without the approval of the Commissioner, were rendered void by reason of the operation of the amended section 34.
The Commissioner claimed that section 6 of the , saved the assessments as well as the notices.
Held, that section 6 of the , was in applicable as the Amending Act of 1948 indicated a different intention within the meaning of that section, inasmuch as the amended section 34 of the Indian Income tax Act, 1922, provided that it shall be deemed to have come into force on March 30, 1948.
Lemm vs Mitchell, ; , distinguished, 761 Held, further, that the notices issued by the Income tax Officer on August 8, 1948, and the assessments based on them were invalid.
Venkatachalam vs Bombay Dyeing & Mfg. Co., Ltd., ; , applied.


Input:
Appeal No. 2203 of 1966.
Appeal by special leave from the judgment and order dated November 8, 1965 of the Judicial Commissioner 's Court, Tripura in Writ Petition No. 27 of 1961.
M. K. Ramamurthi and Shyamala Pappu, for the appellant.
V. A Seyid Muhammad, section P. Nayar and B. D. Sharma, for the,respondents.
640 The Judgment of the Court was delivered by Shah, J.
The appellant joined the Tripura Civil Service on October 30, 1949, and was posted as a probationer Divisional Purchasing Officer, Dharmnagar.
In 1953 the Tripura Civil Service was split into two cadres senior officers being absorbed as Sub Divisional Officers and junior officers as Sub Treasury Officers.
The appellant was absorbed as Sub Treasury Officer with effect from April 1, 1950.
On May 10, 1954, the appellant was appointed officiating Sub Divisional Officer with effect from September 10, 1953.
By order dated May 12, 1954, the appellant was reverted to the post of Sub Treasury Officer with effect from May 6, 1954.
The appellant made several representations to the Chief Commissioner but without success.
The appellant was suspended by order dated May 6, 1957, for failure to obey the orders of the Additional District Magistrate and he was dismissed with effect from July 3, 1958, by the order of the Chief Commissioner.
The appellant moved a petition in the Court of the Judicial Commissioner at Tripura challenging the orders of suspension and dismissal.
On February 19, 1960 the Court set aside the impugned orders.
By order dated November 7, 1960 the Chief Commissioner reinstated the appellant to the post of Superintendent of Surveys and by the same order reverted him to his substantive post of Sub Treasury Officer with retrospective effect, from June 7, 1957.
The appeal of the appellant to the President having been rejected, he moved a petition in the Court of the Judicial Commissioner for a writ quashing the orders dated May 12, 1954 and November 7, 1960.
The appellant contended that in order of reversion cannot be made to have retrospective operation.
The petition insofar as it relates to the first order was belated.
Again there is no ground for holding that retrospective operation was in fact given to that order of reversion.
By the order dated May 12, 1954 the appellant was reverted to the post of SubTreasury Officer, but the order did not state the date from which the order was to be effective.
In summarising the averments made in the petition, the Judicial Commissioner stated that the petitioner had alleged that the order dated May 12, 1954, was to have effect from May 6, 1954.
A copy of that petition is not filed in this Court and we are unable to accept, especially having regard to the terms of the order, that any retrospective operation was sought to be given.
In any event the Judicial Commissioner was justified in refusing to entertain any contention as to the validity of the order of reversion made nearly seven years before the date on which the petition was filed, 641 The second order dated November 7, 1960, passed by the Chief Commissioner consists of two parts (i) that the appellant be reinstated in the post of the Superintendent of Surveys with effect from the afternoon of May 7, 1957; and (ii) that the appellant be reverted to the substantive post of Sub Treasury Officer with retrospective effect from June 7, 1957.
The appellant, as already stated, was suspended on May 6, 1957.
The order of suspension and the order of dismissal which followed it were set aside by the Judicial Commissioner, and the Chief Commissioner therefore reinstated the appellant with effect from the afternoon of May 7, 1957 to the post occupied by the appellant on the date on which he was suspended.
But the appellant was not holding the post of Superintendent of Surveys substantively : he was merely officiating in that post.
He was therefore reverted with effect from June 7, 1957 to his substantive post.
The order was passed because the post was filled by another officer approved by the U.P.S.C. Counsel for the appellant relied upon the observations made by section R. Das, C.J., in Parshotam Lal Dhingra vs Union of India(1) : "But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment.
The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences.
Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponment of his future chances of promotion.
then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty." These observations.
in our judgment, do not assist the appellant.
The order reverting the appellant from June 7, 1957, to his substantive post does not entail forfeiture of his pay or allowances or loss of seniority in his substantive rank or stoppage or postponement of his future chances of promotion, (1) , 863.
642 Counsel for the appellant urged that whenever a person is reinstated as from the date on which his services were terminated he must be restored to the same office which he was holding at the date of the termination of employment or suspension and must receive salary upto the date of reinstatement which that office carried.
We find no warrant for the submission.
If the appellant had not been suspended, it was open to the Chief Commissioner still to revert him to his substantive post.
We see no reason for holding that the Chief Commissioner could not do so when he reinstated the appellant.
There is no ground for thinking that the order was made maliciously.
The reason for reversion was that since June 7, 1957 another officer was occupying the post of the Superintendent of Surveys.
The post having been already filled, the appellant cannot claim that when he was reinstated lie should have been paid emoluments attached to the office of Sub Divisional Officer on the footing that he continued to occupy that office which he was holding in an officiating capacity.
The appeal therefore fails and is dismissed.
Having regard to the circumstances of the case there will be no order as to costs.
V.P.s.
Appeal dismissed.

Output:
The appellant, who was a junior officer in the State service, was appointed as an officiating senior officer on May 10, 1954.
On May 12, 1954, an order was passed reverting him to the, post of junior officer.
On the ground that he refused to obey the order of reversion, on May 6, 1957 he was suspended, and ultimately dismissed.
The orders of the suspension and dismissal were set aside by the Court of Judicial Commissioner.
By order dated November 7.
1960, he was reinstated in the post of the senior officer which he was holding on the date of his suspension.
with effect from the afternoon of May 7, 1957.
By the same order, he was reverted to his substantive post of junior officer with retrospective effect from June, 7, 1957, as another officer was already occupying the post.
The appellant, thereupon, challenged both the orders dated May 12, 1954, and November 7, 1960, but the Judicial Commissioner dismissed the petition.
In appeal to this Court, HELD : (1) The order dated November 7, 1960 reverting the appellant to his substantive post did not entail forfeiture of the appellant 's pay or allowances, or loss of seniority in his substantive rank, or stoppage or postponement of his future chances of promotion.
The appellant could not claim the salary of the senior post from the date of suspension or dismissal till date of reinstatement, because, the appropriate authority, when reinstating the appellant could revert him, as from an earlier date, to his substantive post from the officiating post, provided the order was not passed mala fide.
[641 H; 642 B C] Parshotam Lal Dhingra vs Union of India, ; , referred to.
(2) There is nothing to show that any retrospective operation was given to the order dated May 12, 1954 In any event, the Judicial Commissioner was justified in refusing to entertain any contention as to its validity seven years after the order was passed.
[640 H]


Input:
Criminal Appeal No. 88 of 1954.
Appeal by Special Leave from the Judgment and Order dated the 7th January, 1954 of the Allahabad High Court in Criminal Appeal No. 377 of 1953 connected with Criminal Revision No. 461 of 1953 arising out of the Judgment and Order dated the, 17th November, 1952 of the Court of Additional Sessions Judge at Meerut in Session Trial No. 113 of 1952.
B.B. Tawakley, (K. P. Gupta, with him), for the appellant.
K.B. Asthana and C. P. Lal, for the respondent.
September 28.
The Judgment of the Court was delivered by BOSE J.
The only.
question here is about sen. tence.
74 584 The appellant Bed Raj and another, Sri Chand, were jointly charged with the murder of one Pheru.
The Sessions Judge convicted Bed Raj under section 304, Indian Penal Code, and sentenced him to three years ' rigorous imprisonment.
He acquitted Sri Chand.
I Bed Raj appealed to the High, Court and that Court, on admitting the appeal for hearing, issued notice to the appellant to show cause why the sentence should not be enhanced.
The appeal and the revision were heard together.
The appeal was dismissed and the High Court enhanced the sentence to ten years.
Now, though no limitation has been placed on the High Court 's power to enhance it is nevertheless a judicial act and, like all judicial acts involving an exercise of discretion, must be exercised along, well known judicial lines.
The only question before us is whether those lines have been observed in the present case.
The facts that have been found by the Sessions Judge and accepted by the High Court are to be found in the opening paragraph of the learned Sessions Judge 's judgment.
They are as follows: "Roop Chand, the son of Bed Raj accused, was removing the dung.
of the bullocks of Pheru deceased from an open space near his cattle shed.
Pheru protested to, the boy and turned down the basket in which the boy had put the dung.
The two accused who are brothers then came to the scene from their own cattle shed which was near by and there was an exchange of abuses between them and Pheru.
The accused Sri Chand then caught hold of Pheru by the waist and Bed Raj accused took out a knife and stabbed him in 3 or 4 places.
The knife was then left sticking in the neck of the deceased and the accused ran away".
The assault occurred about 8 o 'clock on the morning of the 23rd February 1952.
Pheru was removed to the hospital and the Medical Officer Dr. Fateh Singh examined him and found that he was suffering from shock.
He found three injuries on his person: 585 all "simple".
He gave the following description of them: right side lower part.
(2) Incised wound: 1 " x 1/3" X1/3" right deltoid region frontal and lower part above downward.
(3) Incised wound 1/2" X 1/6" X 1/4"Epigastric region".
He said "When Pheru was admitted in the hospital he was under shock but his condition was not dangerous.
When Pheru came he could speak.
He was not unconscious.
As he was under shock no report was made for recording his dying declaration.
I cannot give the definite cause of death.
I cannot tell if sucH an InjurY can cause death.
There was no Haemorrhage from Pheru 's neck after his arrival in my hospital.
Speaking:of the inJurieis, the doctor said "Injuries 2 and 3 on the person of Pheru which were incised wounds were not punctured.
It was not possible to inflict them from a sharp pointed weapon".
The appellant was also examined by the doctor and a slight simple injury, which could have; been caused by a simple blunt weapon, was discovered.
This indicates that there was a scuffle between the appellant and the deceased, in which the appellant was hit over the nose and, up to a point, bears out what the appellant says in his defence, namely that Pheru was beating the appellant 's son Rup Chand; he went there and tried to extricate Rup Chand; Pheru started beating him (the appellant) and he, the appellant, received a flat blow on the nose.
The depth of the injury on Pheru 's neck was I of an inch.
In this connection the doctor says "A knife can penetrate 1 1/2 or 2 inches in a case of deliberate stabbing".
Pheru died about 12 45 A.M. on the 24th February 1952, that is to say, about 16 or 17 hours after the assault.
The post mortem was conducted by another doctor, Dr. J. K. Dwivedi.
Describing the injury on the neck the only one we need consider as the other two were slight he said that clotted blood was present all round injury No, 1, and, that 586 "the:right side dome of pleura is punctured under injury No. 1 and clotted blood present all round it.
Upper lobe of right lung (appex) is punctured for 1/4" X 1/4" X 1/2".
Clotted blood present over the lung surface all round the punctured area.
A branch of the external jugular vein was divided in right side neck under injury No. I. Death was due to shock, and haemorrhage as a result of injury to neck".
In cross examination he said "It was possible and impossible also that the bleeding could be stopped.
Such injury as injury No. I are more likely to cause death".
After reviewing the evidence 'the learned Sessions Judge held "It is evident that the whole scene took just a few moments.
Both of the accused must have been in a moment of heat and before either of them could think of doing any act, the whole thing was over. .
That the injuries with the knife were likely to cause death is clear but they were caused at a time when the parties were in a heat and there was a sudden fight and no room for premeditation".
Because of this, and seeing that there was no reason to infer pre concert, he acquitted the other accused, and by reason of those circumstances he considered that three years would be sufficient punishment and sentenced the appellant accordingly.
This was on 17 11 1952.
The appellant filed an appeal to the High Court on 1.8 12 1952 and that Court thereupon issued notice to him to show cause why the sentence I should not be enhanced.
The High Court directed enhancement on 7 1 1954.
On the same day the State Government ordered the release of the appellant on probation, under section 2 of the U.P. Prisoners ' Release on Probation Act, 1938, for the full term of the sentence imposed by the Sessions Court.
We are not concerned with the State Government 's order except in so far ' as it indicates the view that that Government took of the antecedents and conduct in prison of the appellant, matters that are also relevant for consideration by a Court 587 when determining a, question of sentence ' a prisoner can only be released on probation under that Act if the State Government is satisfied "from his antecedents and his conduct in the prison that he is likely to abstain from crime and lead a peaceable life, if he is released from prison".
These facts were not known to the High Court when it made its order of enhancement ' but it is a matter relevant for our consideration now that the appeal is before us.
Now the High Court accept the findings of the Sessions Judge about the circumstances in which the offence took place.
They agree that the attack was not premeditated and that there was a sudden quarrel and that the blows were inflicted in the heat of passion,.
They also say that there was counter abuse and they notice the abrasion on the appellant 's nose.
Despite this they hold that ' "it is possible that this injury was received by the appellant in the attempt of the deceased to resist the attack made by the appellant.
There was therefore no fight '.
This is a very half hearted finding and ignores the fact that the benefit of all doubts must be given to the accused.
If it was only "possible" that the injury was due to Pheru 's attempt to ward off an attack by the appellant, then it must be equally "possible" that it was received in the course of a, scuffle.
The appellant very definitely says in his examination that there was a fight and the abrasion on his nose which the doctor says was caused by a blunt weapon, bears out his version that Pheru struck him with his fist.
The circumstances also indicate that there must have been a scuffle.
Why else should it be necessary for the second accused to come and hold him down by the waist? When villagers or any man for that matter, come to blows after hot words and an interchange of abuse, there is nearly always resistance to the initial attack.
Very rarely does a man "turn the other cheek".
It must also be remembered that the incident started with the use of force by Pheru.
It was he who took hold of the basket of cow dung and 588 overturned it.
That occasioned the quarrel, and the finding is that there was abuse and counter abuse.
It was then that the second accused rushed in and caught Pheru by the waist.
That accused was acquitted because there was nothing to suggest that that was done in aid of the appellant 's intention to assault Pheru and he was absolved of all intention to assault on his own account; and the finding is that even the appellant had no such intention till the last moment.
If that was the case, then why should the second accused rush in and hold Pheru by the waist? If he had no intention to assault on his own account and none to assist the appellant in his assault, the only other reasonable conclusion is that he tried to stop a fight.
It would be fair in the circumstances to reach that conclusion, for the accused is as much entitled to the benefit of any doubt when a co accused is acquitted as in any other case.
In any case, it was incumbent on the High Court to reach a more definite finding than the one given before deciding to enhance the sentence.
The only reason that the learned Judges give is that Pheru was unarmed and as the attack was made with a knife it cannot be said that the appellant did not act in a cruel or unusual manner.
Nevertheless, they uphold the finding that the offence falls under section 304, Indian Penal Code, and not under section 302.
A question of a sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, an appellate court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment; see for example the observations in Dalip Singh vs State of Punjab(1) and Nar Singh vs State of Uttar Pradesh (2).
In a matter of enhancement there should not be interference when the sentence passed imposes substantial punishment.
Interference is only called for when it is manifestly inadequate.
In our opinion, these principles have not been observed.
It is (1) ; , 156.
(2) ; , 241, 589 impossible to hold in 'the circumstances described that the Sessions Judge did not impose a substantial, sentence, and no adequate reason has been assigned by the learned High Court Judges for considering the sentence, manifestly inadequate.
In the circumstances, bearing all the considerations of this case in mind, we are of opinion that the appeal (which is limited to the question of sentence) should be allowed and that the sentence imposed by the High Court should be set aside and that of the Sessions Court restored.
Ordered accordingly.

Output:
A question of sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, an appellate court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment.
In a matter of enhancement there should not be interference when the sentence passed imposes substantial punishment.
Interference is only called for when it is manifestly inadequate.
In the circumstances and bearing all the considerations of the present case in mind it was impossible to hold that the Sessions Judge did not impose a substantial sentence.
The Supreme Court set aside the sentence imposed by the Court and restored that of the Sessions Judge as no adequate reason bad been assigned by the High Court for considering the sentence passed by the Sessions Judge as manifestly inadequate.
Dalip Singh vs State of Punjab ([1954] S.C.R. 145) and Nar Singh vs State of Uttar Pradesh ([1956] 1 S.C.R. 238), referred to.


Input:
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.

Output:
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.