Civil Appeal No. 1231 of 1968.

Appeal by special leave from the judgment and order dated the 20th December 1962 of the High Court of Judicature at Bombay in Civil Appeal No. 151 of 1960.

B. D. Bal with A. G. Ratnaparkhi, for the appellant.

V. section Desai with M. N. Shroff for section P. Nayar, for respondent.

The Judgment of the Court was delivered by GOSWAMI, J.

The question that arises in this appeal by special leave is whether Shri Vithal Sukhamai Sansthan at Amalner, (East Khandesh) was a private Devasthan or a public religious trust.

There was a saint endowed with spiritual powers by the name of Sakharam Maharaj at Amalner.

The deity of his worship was Shri Vithal Rukhamai.

Although the origin of the Sansthan is dipped somewhat in antiquity and direct testimony was lacking, it has never been disputed that Sakharam Maharaj constructed a temple in the year 1817 at Amalner and installed the aforesaid deity according to religious rites.

He also acquired certain properties and the said temple with the properties constituted Shri Vithal Rukhamai Sansthan of Amalner.

The sansthan had movable property of the value of Rs. 19,164/ and immovable properties of the value of Rs. 1,06,000/ and the average gross annual income as well as the average annual expenditure was Rs. 11,000/ .

After the passing of the Bombay Public Trusts Act, 1950 (No. 29 of 1950) (briefly the Act) an application under section 18 of that Act was filed by three persons Bhaskarrao Chimanrao Deshmukh, Ramrao Sahebrao Deshmukh and Ramkrishna Tryambak Deshpande, as constituted attorneys of Vasudeobuwa who was described in the application as the "owner" of the property.

The word 'Buwa ' means saint.

The application was made on May 29, 1952, to the Assistant Charity Commissioner, Poona, under protest and without prejudice 520 to the claim made therein that the Sansthan was not a public trust.

In view of the penal provision under section 66 of the Act in the case of non compliance with section 18(1) of the Act the said application was made ex abundanti cautela.

The Assistant Charity Commissioner after requisite notice made an enquiry into the matter in accordance with the provisions of the Act.

On behalf of the applicants representing the Sansthan evidence of the attorney Ramkrishna Deshpande was recorded and he was cross examined by the assessors as well as by the Assistant Charity Commissioner.

Some documents were also produced on behalf of the Sansthan.

Three witnesses were examined on behalf of the Assistant Charity Commissioner and were afforded an opportunity to the applicants ' pleader for cross examination.

At the close of the enquiry the Assistant Charity Commissioner by his order of August 25, 1956, held the Sansthan to be a public trust and ordered its registration as a public trust under the Act.

The applicants thereupon filed an appeal under section 70 of the Act before the Charity Commissioner, Bombay, who by his order of August 31, 1957, affirmed the decision of the Assistant Charity Commissioner.

That led to an application under section 72 of the Act to the District Judge of West Khandesh at Dhulia which was duly filed on behalf of Purshottambuwa who meanwhile succeeded Guru Vasudeobuwa as "owner" of the Sansthan.

The learned District Judge reversed the decision of the Charity Commissioner by his order of October 16, 1959, and declared the Sansthan to be a private property and not a public trust.

The Charity Commissioner then appealed under section 72(4) of the Act to the High Court of Bombay.

The High Court by its order of 19/20th December, 1962, set aside the order of the District Judge and held the Sansthan to be a public trust under the Act and restored the order of the Charity Commissioner.

Hence this appeal by special leave which was obtained on March 29, 1968, after condonation of delay, in the peculiar circumstances of the case arising out of revocation by the High Court of its earlier certificate in favour of the appellant on account of default of deposit of security.

As noted earlier there was both oral and documentary evidence adduced in this case.

The learned District Judge relied mostly on the documentary evidence for his conclusion in favour of the appellant.

The High Court took note of both oral as well as documentary evidence.

The High Court particularly relied upon an admission of the appellant 's witness, Ramkrishna Deshpande, when he stated that "we cannot prevent people from going to the temple as the temple is meant for the Darshan by the public".

It is not disputed by Mr. Bal appearing on behalf of the appellant that the Sansthan in question is an endowment.

His only contention is that it is a private religious endowment and not a public one.

He submits that there is no evidence of long user of this temple by 521 the public as a matter of right.

Mr. Bal further contends that the High Court failed to consider all the material documents filed on behalf of the appellant except only exhibit 35 and that the conclusion was highly erroneous being contrary to the one that had been reached by the District Judge on appraisal of the entire documentary evidence.

Before we proceed further, it may be appropriate to note the definitions of 'public trust ' and 'temple ' in section 2(13) and section 2(17) respectively of the Act which read as follows: section 2(13): "Public trust ' means an express or constructive trust for either a public religious or charitable purpose, or both and includes a temple, a math, a wakf, church syna gogue, agiary or other place of public religious worship, a dharmada or any other religious or charitable endowment. " section 2(17): "Temple ' means a place by whatever designation known and used as a place of public religious worship and dedicated to or for the benefit of or used as of right by the Hindu community or any section thereof as a place of public religious worship".

Relying upon the above definitions Mr. Bal submits that there is absolutely no evidence in this case about dedication to the public or public user of the temple as a matter of right.

Since the grievance of the appellant is directed against the High Court 's absolute failure to consider all the documentary evidence, we may deal with that aspect first.

The earliest document produced in this case is a 'Sanad ' (exhibit 42) of November 1, 1863.

This Sanad was granted by the then British Government during the reign of Queen Victoria in favour of "Devasthan Shri Vithal Rukhamai '.

The Sanad refers to the entry in the village accounts.

The entry mentioned therein is in the village accounts in the Khandesh Collectorate for the year 1860 61, field Nos. 623 and 624 measuring 14.5 acres of land in the name of the holder as Devasthan Shri Vithal Rukhamai, Manager Balkrishnabuwa, Guru Govindbuwa, Amalnairker.

There are significant recitals in the Sanad to the following effect: "It is hereby declared that the said land shall be continued for ever by the British Government as the endowment property of Shri Vithal Rukhamai of Kasabe Amalnair Talooka Amalnir on the following conditions, that is to say, that the managers thereof shall continue faithful subjects of the British Government, and . the said land shall be continued for ever as endowment Inam without increase of land tax over the said fixed amount".

The amount fixed was Rs. 17/4/0 per annum.

522 It is true that the High Court has not referred to this Sanad but the District Judge did.

The District Judge held that ". . the expression in the Sanad cannot be in any way determinative of the nature of the temple or religious endowment as a public trust".

It is, however, difficult to accept the conclusion of the District Judge.

The Sanad being an ancient Royal grant is a very important piece of evidence to show that although Sakharam Maharaj, the founder of the temple, had already been succeeded by Guru Govindbuwa and the latter by Balkrishnabuwa, the land had been held in the year 1860 61 in the name of the Devasthan.

It is in the name of the Devasthan alone that the grant was continued by the Government.

This would go to show that the Government recognised the Sansthan with the temple as a public religious endowment and only on that basis the grant was continued.

Apart from that the temple was shown to have a Manager and not an owner as such.

In the absence of anything to the contrary of a convincing nature, a grant by the Government in favour of the temple describing the property to be in charge of a manager leads to an unerring inference that the property is a public religious endowment.

From the evidence of Ramkrishna Deshpande, one of the constituted attornies, we find the origin and the devolution as follows: "The originator of this Sansthan is Sakharambuwa.

After Sakharam there came Gobindbuwa.

He was followed by Balkrishnabuwa.

Then came Prahladbuwa.

Thereafter Tukarambuwa came to Gadi.

After him there was Krishna buwa and after him there was Balkrishna.

Then came Vasudeo.

After him the present Buwa Purshottam came to Gadi.

This Gadi goes to Shishya from the Guru".

This evidence of Ramkrishna Deshpande stands corroborated by the Sanad which shows in the year 1860 61 the Manager of the Sansthan as Balkrishnabuwa Guru Govindbuwa.

Guru Govindbuwa was the second in the line of succession after Sakharam, the founder, and Balkrishnabuwa being the third in the line.

It is clear from the Sanad that the Government treated the temple as a public religious endowment.

The next document in sequence is a Varaspatra of February 28, 1869 (exhibit 35) executed by Guru Govind Balkrishna buwa in favour of Prahladbuwa.

This is a document which was relied upon both by the District Judge as well as by the High Court.

Varaspatra is a deed of nomination by which an Adhikari for the Sansthan was nominated in order to take charge of the property, maintain and continue the religious worship of the deity as per tradition as well as of the celebration of the festivals in accordance with the customary practice of the Sansthan.

The appellant draws our attention to the following recitals in the above deed: "I have been carrying on the Malaki of Shri Sansthan Amalner. " 523 According to the appellant this would go to show that the executant of the document Balkrishnabuwa described himself as 'Malak ' (owner) of the Sansthan.

It is further pointed out that while nominating Prahlad as Adhikari, Balkrishnabuwa stated in the said document as follows: "You are entitled to the ownership of all the incomes that will come before the Deity, Shri Samarth and during the Swari (procession) as well as the income of Inam Najrana and the income of movable and immovable property".

x x x x x "The entire ownership of the Sansthan and all the movable and immovable property etc.

pertaining to the Sansthan is of yours.

That ownership is of your own.

Your Bhauband and others have no right whatsoever over the same.

You are free to give and take as per the Shishya sampradaya as has been done previously".

From the above, the appellant contends that the Sansthan was a private property and it was also transferred to the Shishya Adhikari to maintain it as his own property.

We are unable to accept this submission as we find some other significant recitals in the documents itself warranting a contrary conclusion.

Although it is stated in the document that Balkrishnabuwa was "carrying on the Malaki", he at the same time states with regard to the Sansthan thus: ". the same was entrusted to me by Shri Guru Maharaj". . x x x x x "I, therefore, thought that I should entrust the work of the Sansthan to you and have appointed you to the said Sansthan".

The nature of devolution is explicit in the above extract.

Although there is use of the words owner and 'Malaki ' in the above recitals, the entire tenor of the document read as a whole goes to show that the property has always been treated as trust property even by the Adhikari saints and the Adhikaris or the disciples who succeeded one after the other were not owners but trustees of the property.

This ancient document read as a whole does not admit of any other interpretation consistent with the nature of the property and the avowed object and purpose of the founder clearly revealed therein which has been carried into effect by successive loyal and devoted disciples.

The words 'Malaki ' and 'owner ' in the context, are not used in the broad sense to indicate an absolute character of personal ownership.

The next document is Vyavasthapatra (exhibit 41) of April 25, 1897.

We find from the evidence of Ramkrishna that the Shishya is appointed by the Maharaj who happens to be holding the Gadi at the relevant time.

This fact is borne out by the recitals in exhibit 41.

524 This document may be described as a deed of nomination or will whereby it appears Krishnabuwa whose Guru was Tukaram Maharaj nominated Balkrishna Gangadhar Dhamurkar as the Devadhikari of the Gadi to succeed him.

The appellant submits that Balkrishna was bestowed a 'Malaki ' as the term appears in this document.

Although the High Court has not dealt with this document, there is a reference in its judgment to the contents of the same as being similar to exhibit 35.

The principal emphasis on both these documents exhibit 35 and exhibit 41 is that the words 'owner ' and 'Malaki ' were used in the recitals.

As stated above we are unable to hold that recitals in these documents taken as a whole can reasonably lead to the conclusion that the Sansthan is a private property.

After the turn of the century, coming now to comparatively recent times, there are four documents exhibit 40,37,39 and 38 dated September 10, 1929, July 15, 1936, July 2, 1946 and January 28, 1949, respectively.

In exhibit 40 the party taking the gift is described as Vahiwatdar Panch of Shri Sakharam Maharaj, Sansthan, Vithalwadi, Amalner.

The donor, an old agriculturist of a different Taluka viz. Erandole, writes: "I give the gift deed in writing as follows: With the object of giving possible help through me to the above sansthan, I have given in gift my ancestral immovable property. x x x x x I have given in gift the above mentioned property as aforesaid of my free will for the purpose of religious work in order that my life may be of bliss as I have no male issue and wife.

x x x x x The said field should be used for the sansthan from generation to generation.

The above sansthan has become full owner thereof".

In the gift deed exhibit 37 executed by three businessmen of Amalner there are recitals to the similar effect: "When we were joint, the said field was given as a gift to you for the service of the sansthan, viz., Shri Vithal Rukhmai Sansthan, Amalner and was given in your possession.

Now all our movable and immovable estate is partitioned orally.

Hence the gift deed of the said field, which had remained unexecuted, has been executed today. " The said gift deed was in favour of Archak (worshipper) Vasudeobuwa Guru Balkrishnabuwa.

Again, in the gift deed exhibit 39 the donee is described as "Shri Rukhmini Pandurang Sansthan, Sansthan Amalner Sakharam Maharaj at present Vasudev Buwa Guru Bal 525 krishna Maharaj".

The following recitals in the said document are eloquent: "This land is given to you in charity as per the order of (my) mother with a religious view and with an intention of benefitting others with the object of achieving happiness in this world and in the next world according to the shastras and the above land is given in your possession this day.

Hence you are the full owner of the land and you are free as full owner thereof to manage and carry on the Vahiwat of the said land by right of ownership perpetually from generation to generation on the strength of this writing.

x x x x x The Dindi of the said Sansthan from Amalner remains at Shivgaon on the 30th of Jeshta vadya or on the 1st of Ashad Shudha according to practice every year.

You should spend the income of the said property for the purpose of Naivadya for the Deity Pandurang at night that day.

" The beneficiaries of this gift are clearly the unascertained Hindu public and not ascertained individuals and the donee is a trustee accepting the gift on behalf of the Sansthan.

The last deed of gift is exhibit 38 and the donee is "Shri Vasudev Buwa Guru Balkrishna Buwa" described as the worshipper carrying on the "Vahiwat of Shri Vithal Rekhmai Sansthan".

The deed goes on to say: "I have full faith in Shri Sakharam Maharaj.

Hence with the intention (object) that some service may be rendered by me for his Devasthan, I have given in gift out of love the below mentioned property valued at Rs. 600 (Six hundred) without taking any consideration from you, for the purpose of expenses of performing worship and offering Naivadya food".

All the above gifts were donated to the Devasthan and for the maintenance of worship therein.

These gifts were not made in favour of individuals as such in order that the beneficiaries of the gifts will be only those individuals.

It is clear that the beneficiaries of the deeds are the deity and the Sansthan and the gifts were made with the object of maintenance of the worship of the deity for the benefit of the Hindu public as a whole.

The expression in the recital that "you are free as the full owner thereof" does not convert the gift which is expressly in favour of the deity or Sansthan into that in favour of an individual as private property.

The appellant relies on all these documents for the purpose of showing that the endowment is private only because ownership of the donor is transferred to the donee.

We are, however, unable to accede to this submission.

It is very significant that in the last gift deed exhibit 38 of January 28, 1949, there is a most reverential reference to Shri 526 Sakharam Maharaj and his Devasthan when Sakharam Maharaj had departed in the past century.

Not much can be made therefore from the expression "His Devasthan" to convert the property into a private endowment.

The reference to Sakharam Maharaj Sansthan, wherever it appears, is only for the purpose of identification and commemoration of the hallowed saint who had admittedly founded the same.

The principles of law for determination of the question whether an endowment is public or private are fairly well settled.

This Court observed in Deoki Nandan vs Murlidhar as follows: "The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter, they are the general public or a class thereof.

While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment".

This Court further held: "When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of worshippers, the question whether an endowment is private or public presents no difficulty.

The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof.

In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals.

But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers".

(See also the State of Bihar & ors.

vs Sm.

Charusila Dasi.

Distinguishing the decision of the Privy Council in Bahu Bhagwan Din vs Gir Har Saroon on the ground that the properties in that case were granted not in favour of an idol or temple but in favour of one Daryao Gir who was maintaining a temple and to his heirs in perpetuity, this Court further held in the above decision: "But, in the present case, the endowment was in favour of the idol itself, and the point for decision is whether it 527 was private or public endowment.

And in such circumstances, proof of user by the public without interference would be cogent evidence that the dedication was in favour of the public".

This Court also distinguished the aforesaid Privy Council decision of Babu Bhagwan Din 's case (Supra) in Narayan Bhagwantrao Gosavi Balajiwale vs Gopal Vinayak Gosavi and others.

This Court also observed in Narayan Bhagwantrao Gosavi Balaji wale 's case (supra) that it is also unusual for rules to make grant to a family idol.

In Tilkayat Shri Govindlji Maharaj vs The State of Rajasthan and others this Court had to consider about a Hindu temple being private or public and observed as follows: "Where evidence in regard to the foundation of the temple is not clearly available sometimes, judicial decisions rely on certain other facts which are treated as relevant.

Are the members of the public entitled to an entry in the temple ? Are they entitled to take part in offering service and taking Darshan in the temple ? Are the members of the public entitled to take part in the festivals and ceremonies arranged in the temple ? Are their offerings accepted as a matter of right. The participation of the members of the public in the Darshan in the temple and in the daily acts of worship or in the celebrations of festivals occasions may be a very important factor to consider in deter mining the character of the temple".

In Goswami Shri Mahalaxmi Vahuji vs Rannchhodds Kalidas and an Ors., this Court observed as follows: "In brief the origin of the temple the manner in which its affairs are managed, the nature and extent of gifts received by it, rights exercised by the devotees in regard to worship therein, the consciousness of the manager and the consciousness of the devotees themselves as to the public character of the temple are factors that go to establish whether a temple is a public temple or a private temple".

The learned counsel for the appellant relied upon the decision in Bihar State Board Religious Trust, Patna vs Mahant Sri Biseshwar Das and drew our attention to the following observations therein: "Thus, the mere fact of the public having been freely admitted to that temple cannot mean that courts should readily infer therefrom dedication to the public.

The value of such public user as evidence of dedication depends on 528 the circumstances which give strength to the inference that the user was as of right".

"Examples do occur where the founder may grant property to his spiritual preceptor and his disciples in succession with a view to maintain one particular spiritual family and for perpetuation of certain rights and ceremonies which are deemed to be conducive to the spiritual welfare of the founder and his family.

In such cases it would be the grantor and his descendants who are the only persons interested in seeing that the institution is kept up for their benefit.

Even if a few ascetics are fed and given shelter, such a purpose is not to be deemed an independent charity in which the public or a section of it has an interest.

Such charities, as already stated earlier, appertain to a private debutter also".

* * * * * We do not find that there is any difference in the ratio of the principles followed in the above decision.

The case went against the Board in the above decision in the absence of "evidence of a reliable kind" of public user as "evidence of dedication".

It is not always possible to have all the features of a public trust in a given case.

Even some of the tests laid down by this Court may, in a given case, be sufficient to enable the court to come to a conclusion about the character of the trust.

We cannot agree that the High Court was not right in giving due importance to the admission of the constituted attorney Ramkrishna Deshpande that they "cannot prevent people from going to the temple as the temple is meant for the Darshan by the public".

The consciousness of the constituted attorney about the nature of the property, which has been held out for more than a century as a public religious endowment, adds to the effect of the documentary evidence produced by the appellant in this case in favour of the same conclusion.

It has to be remembered that the founder Sakharam Maharaj was a celibate and the successive disciples who succeeded as Adhikaris of the Gadi were also celibates.

From exhibit 35, the first Varaspatra of February 28, 1869, one gets a full picture of the working of the Sansthan: "The service and Bhajan etc.

of the Deity have to be made as per the order of the Guru according to the Sampradaya".

* * * * * * ". you should perform the Bhajan as was being done as per the Shishya Sampradaya and perform the Bhajan in Chaturmas at Shrikshetra Pandharpur regularly and there after you should come to Amalner and keep up the practice of celebrating the festivals etc.

of Shri Sakharam Maharaj regularly as was being done.

You should maintain the 529 Mandali (Committee) of the sansthan and continue the whole Mandali (Committee) with unanimous opinion.

You know the Vahiwet of the Sansthan as is going on.

You should continue the same accordingly in future". . * * * * * * "That ownership is of your own.

Your bhauband and others have no right whatsoever over the same.

You are free to give and take as per the Shishya sampradaya as has been done previously.

The Deshmukhs and Deshpandes at Kashev Amalner have been rendering service to the said Sansthan faithfully.

You should make arrangement to accept service from them as being done accordingly and go on rendering service and performing Bhajan etc.

faithfully as mentioned herein as per the Vaishnava sampradaya as being done from before".

x x x x x We have also seen from the evidence of Ramkrishna Deshpande: "All the Buwas are saints.

People go for darshan because these people were saints.

This Sansthan is based on the principles of Shishya parampara.

This property goes from Guru to his Shishya.

* * * * * "The residents of the place where the Bhajans are performed attend these Bhajans.

In the days of Pandharpur fair the Maharaj remains present.

He stays there for about 4 months.

During his stay at Pandharpur Bhajans are performed daily.

During the fair his Shishyas perform the Bhajans.

While returning from the pilgrimage also he performs Bhajans.

Maharaj also attends other fairs at Nasik etc.

At that time also his Shishyas accompany him.

By Shishyas I mean the disciples as well as followers.

Shishyas are few but the followers are in large numbers.

In the utsava at Amalner many saints of other places, Shishyas and followers take part.

The persons who attend this year besides Shishyas and followers are about ten thousand.

The followers and saints are paid their cost of journey.

All their expenses of boarding and lodging are met by this Sansthan.

The Bhajans at Pandharpur performed by Maharaj are attended by the public".

Ramkrishna Deshpande concludes his evidence by stating: "I contend that this is a private temple because others cannot perform puja without permission of Maharaj".

The oral and documentary evidence leave no room for doubt whatsoever that the Sansthan and the temple are public religious endowments.

Even in acknowledged public temples any and everybody cannot perform puja in the sense in which the head pujari daily performs 530 at various stages.

Public is not and may not be allowed to the inner most sanctum where the deity is installed except under special circumstances with special permission.

That would, however, not lead to the conclusion that the temple is a private temple.

Worshippers are not merely the accredited daily pujaris but also the multitude of the public who go to the temple for Darshan of the deity and for offerings.

The contention of Ramkrishna Deshpande in his evidence, therefore, is without any force.

When the origin of an endowment is obscure and no direct oral evidence is available, the Court will have to resolve the controversy about the character of the trust on documentary evidence, if any, the object and purpose for which the trust was created, the consistent manner in which the property has been dealt with or managed by those in charge, the manner in which the property has long been used by the public, the contribution of the public, to all intents and purposes, as a matter of right without the least interference or restriction from the temple authorities, to foster maintenance of the worship the accretion to the trust property by way of grants from the state of gifts from outsiders inconsistent with the private nature of the trust, the nature of devolution of the property, are all important elements in determination of the question whether a property is a private or a public religious endowment.

We are satisfied that in this case all the above tests are fulfilled.

To sum up from the documentary and oral evidence produced, the following features are present in the present case: (1) The deity installed in the temple was intended by the Founder to be continually worshipped by an indeterminate multitude of the Hindu public: (2) In order to facilitate worship by the public, the founder also intended that regular Bhajan, Kirtan and worship shall be maintained and annual ceremonies and processions for pilgrimage shall be conducted by the saints in succession nominated by the reigning saint.

(3) There has been no evidence of any hindrance or restriction in the matter of continuous worship by the public extending over a long period.

(4) More than a century ago the temple in its own name was recipient of land by Royal grant and the same has been managed by the saints in succession as Manager not as personal or private property.

(5) Gifts of land by members of the public from the Taluka and outside it in favour of the temple or of the Sansthan for the purpose of maintenance of the worship.

(6) Collection of subscriptions were made from house to house by taking Maharaj and also for 'Gulal ' ceremony.

(7) Holding out of the Sansthan to all intents and purpose as a public temple.

531 (8) Treating of the Sansthan by those who are connected with the management as intended for user by the public without restriction.

(9) Absence of any evidence in the long history of the Sansthan to warrant that it had any appearance of, or that it was ever treated as a private property.

While each case of endowment as to its character depends on the particular history.

tradition and facts, the presence of the above features in the instant case lead to the inescapable conclusion that Shri Vithal Rukhamai Sansthan at Amalner is a public trust within the meaning of section 2(13) of the Act.

In the result the appeal fails and is dismissed.

We will, however, make no order as to costs.

P.B.R. Appeal dismissed.

Summary: The principles of law for determination of the question whether an endowment is public or private are: (1) In a private trust, the beneficiaries are specific individuals who are ascertained or capable of being ascertained; in a private trust, they are the general public or a class thereof which is incapable of being ascertained.

Summary: [526C] (2) The intention of the founder as to whether specified individuals or the general public or any specified portion thereof could have the right of worship.

Summary: [526E] (3) When property is dedicated for the worship of a family idol, it is a private and not a public endowment.

Summary: Where the beneficiaries are not specified individuals, the endowment can only be regarded as public.

Summary: [526 F] Devki Nandan vs Murlidhar. ; and State of Bihar & Ors.

Summary: vs Smt.

Summary: Charusila Dasi, [1959] Suppl.

Summary: S.C.R. 601/613, referred to.

Summary: (4) Proof of user by the public without interference would be cogent evidence that the dedication is in favour of the public.

Summary: [527A] Narayan Bhagwantrao Gosavi Balajiwala vs Gopal Vinayak Gosavi and others; , , referred to.

Summary: (5) It is unusual for rulers to make grants to a family idol.

Summary: [527B] (6) Participation of the members of the public in the darshan in the temple and in the daily acts of worship or in the celebrations on festival occasions may be a very important factor to consider in determining the character of the temple.

Summary: [527E] Tilkayat Shri Govindlalji Maharaj vs The State of Rajasthan and others, [1964] 1 S.C.R. 561.

Summary: referred to.

Summary: (7) The origin of the temple, the manner in which its affairs are managed, the nature and extent of the gifts received by it, rights exercised by the devotees in regard to worship, the consciousness of the manager and the consciousness of the devotees as to the public character of the temple establish whether a temple is a public or a private temple.

Summary: [527F] Goswami Shri Mahalaxmi Vahuji vs Rannchhoddas Kalidas and ors.

Summary: ; , referred to.

Summary: (8) It is not always possible to have all the features of a public trust in a given case: even some of the tests may be sufficient to conclude about the character of the trust.

Summary: [528E] Dismissing the appeal ^ HELD: In the instant case from the documentary and oral evidence the following features are present: (i) The deity installed in the temple was intended by the founder to be continually worshipped by an indeterminate multitude of the Hindu public.

Summary: (ii) In order to facilitate worship by the public, the founder also intended that regular bhajan, kirtan and worship shall be maintained and annual ceremonies and processions for pilgrimage shall be conducted by the saints in succession nominated by the reigning saint.

Summary: 519 (iii) There has been no evidence of any hindrance or restriction in the matter of continuous worship by the public extending over a long period.

Summary: (iv) More than a century ago the temple, in its own name, was the recipient of land by Royal grant and the same has been managed by the saints in succession as manager, not as personal or private property.

Summary: (v) Gifts of land by members of the public from the Taluka and outside it in favour of the temple or of the Sansthan were made for the purpose of worship.

Summary: (vi) Collection of subscriptions were made from house to house by taking Maharaj and also for 'Gulal ' ceremony.

Summary: (vii) Holding out of the Sansthan to all intents and purposes as a public temple.

Summary: (viii) Treating of the Sansthan by those who are connected with the management as intended for user by the public without restrictions.

Summary: (ix) Absence of any evidence in the long history of the Sansthan to warrant that it had any appearance of, or that it was ever treated as, a private property.

Summary: [530E H; 531A B] The above features lead to the inescapable conclusion that Shri Vithal Rukhamai Sansthan is a public trust within the meaning of section 2(13) of the Bombay Public Trust Act.


270 of 1955.

Under Article 32 of the Constitution of India for a Writ in the nature of Habeas Corpus.

Hemendra Shah, J. B. Dadachanji and Rajinder Narain, for the petitioner.

M. C. Setalvad, Attorney General of India, C. K. Daphtary, Solicitor General of India, (B. Sen and R. H. Dhebar, with them) for the respondent No. 1. 890 1955 October 14.

DAS ACTG.

This rule was issued on a petition filed under article 32 of the Constitution by one Purshottam Govindji Halai, a citizen of India, calling upon the respondents to show cause why a writ in the nature of a writ of habeas corpus should not be issued by this Court directing the Superintendent, House of Correction, Byculla, being the second respondent herein., to produce before this Court one Govindji Deoji Halai, the father of the petitioner, who is also a citizen of India., for the purpose of being released forthwith.

The facts which are not in dispute may be shortly stated as follows.

The said Govindji Deoji Halai (hereinafter referred to as the "assessee") is the sole proprietor of a business carried on under the name and style of Indestro Sales and Service Co. at No. 50 52, Lohar Chawl Street in the City of Bombay.

Two private limited companies, namely, Indestro India Ltd., and Indestro Eastern Ltd., also carry on business and have their respective offices in the same premises.

The assessee is said to have some connection with the two companies the nature of which, however, is not quite clear on the record before us.

In respect of his own business of Indestro Sales and Service Co., the assessee was assessed to income tax for the years 1943 44 to 1947 1948 and 1951 1952 by the Third Income tax Officer, C 1 Ward, Bombay, at and for Rs. 40,178 4 0.

The assessee not having paid up the assessed amount of tax the Income tax Officer on the 10th April 1951 issued to the ' Additional Collector of Bombay, the first respondent herein, a recovery certificate ,under section 46(2) of the Income tax Act.

It may here be mentioned that the Indestro Eastern, Ltd., was also assessed to income tax at and for Rs. 1,92,000 and a recovery certificate was also issued by the Income tax Officer to the Additional Collector of Bombay.

On the 1st February, 1954 the Additional Collector issued a notice of demand on the assessee for payment of the assessed amount of tax.

No payment 891 having been made, the Additional Collector attached the goodwill and tenancy rights in the said premises by a warrant of attachment issued on the 24th March 1954.

The sale proclamation was issued on the 15th January 1955.

The sale was held on the 25th February 1955 fetching a price of Rs. 33,000 and it was confirmed on the 30th March 1955.

The sale proceeds not being sufficient to satisfy the assessed tax the Additional Collector on the 7th June 1955 issued a notice under section 13 of the Bombay City Land Revenue Act, 1876, requiring the assessee to appear before him in person on the 16th June 1955 and show cause why he, the assessee, should not be apprehended and confined to civil jail in satisfaction of the said certified demand.

The assessee did not appear in person on the appointed day but on the next day, the 17th June 1955, an Advocate acting on behalf of the assessee wrote a letter to the Additional Collector purporting to show cause why the assessee should not be arrested and sent to the civil jail.

The contentions put forward on behalf of the assessee not being considered satisfactory the Additional Collector on the 30th June 1955 issued a warrant for the arrest of the assessee under section 13 of the Bombay City Land Revenue Act, 1876.

The assessee was actually arrested on the 1st July 1955.

On the 8th July 1955 an application was made by the present petitioner to the Bombay High Court under article 226 complaining of the arrest of his father, the assessee, and praying for a writ in the nature of a writ of habeas corpus for the production and release of the assessee.

A rule was issued by the High Court but eventually on the 24th August 1955 the High Court (Chagla, C.J. and Desai, J.) discharged the rule.

No application was made to the High Court for leave to appeal to this Court from the decision of that High Court but on the 2nd September 1955 the present petition was filed in this Court under article 32 of the Constitution for the relief hereinbefore mentioned.

On the 7th September 1955 a rule was issued by this Court on that petition subject to the question of its maintainability in view of the dismissal by the 113 892 High Court of the petition under article 226 from which no leave to appeal to this Court had been sought or obtained.

The rule has now come up before us for hearing.

In the view we have taken about the merits of the petition it is not necessary for us to consider the question of its maintainability after the dismissal of the petition under article 226 or to make any pronouncement, on this occasion, on the scope and ambit of article 32 of the Constitution in that situation.

The principal contentions urged by the learned Advocate appearing for the petitioner are as follows, namely, (a) that section 46(2) of the Indian Income tax Act under which the Income tax Officer issued the recovery certificate to the Additional Collector of Bombay is void under article 13(1) of the Constitution in that the same offends article 22(1) and (2), article 21 and article 14 of the Constitution; (b) that section 13 of the Bombay City Land Revenue Act, 1876 under which the warrant of arrest was issued by the Additional Collector is void under article 13 (1) of the Constitution as the same is repugnant to article 14 of the Constitution.

We proceed to deal with the objections seriatim.

(a): Section 46(2) of the Indian Income tax Act which is impugned before us runs as follows: "46.

(1). . . . . . . . (2) The Income tax Officer may forward to the Collector a certificate under his signature specifying the amount of arrears due from an assessee, and the Collector, on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue: Provided that without prejudice to any other powers of the Collector in this behalf, he shall for the purpose of recovering the said amount have the powers which under the Code of Civil Procedure, 1908 (Act V of 1908), a Civil Court has for the purpose of the recovery of an amount due under a decree.

The first objection to the above sub section is that it 893 contravenes the fundamental rights guaranteed by clauses (1) and (2) of article 22.

In view of the decision of this Court in the State of Punjab vs Ajaib Singh & Another(1) this objection has not been pressed before us and we need say no more about it.

The second objection to section 46(2) of the Indian Income tax Act is that it is violative of article 21.

Article 21 guarantees that no person shall be deprived of his personal liberty except in accordance with procedure established by law.

In this case the assessee has been arrested and is being detained in jail in execution of a warrant of arrest issued under section 13 of the Bombay City Land Revenue Act, 1876 for the recovery of the demand certified under section 46(2) of the Indian Income tax Act.

As long as those sec tions stand no complaint can be made of infringement of article 21, for those two sections constitute a procedure established by law.

It is only if those sections are void that the question of violation of the fundamental right under article 21 can arise at all.

We have, therefore, to pass on to the third objection to section 46(2) founded on article 14 of the Constitution which alone has been strenuously insisted on before us by learned counsel for the petitioner.

Article 14 is invoked in two ways.

It is pointed out that the first part of section 46(2) provides that the Collector, on receipt of a certificate from the Income tax Officer, shall proceed to recover from the defaulting assessee the amount specified therein as if it were an arrear of land revenue.

It is next said that the proviso to the sub section invests the Collector with all the powers a Civil Court has under the Code of Civil Procedure for the purpose of the recovery of the amount due under a decree.

It is submitted that section 46(2) provides for two different and alternative methods of recovery of the dues and clothes the Collector with the power to apply either of the two methods, that is to say, he may issue a warrant of arrest under section 13 of the Bombay City Land Revenue Act, 1876 against one defaulter and keep him in detention for a period which may (1) ; 894 work out to be much longer than six months and he may proceed against another defaulter under the Code of Civil Procedure and arrest and detain him for the maximum period of six months.

The powers that are thus conferred on the Collector by section 46(2) are unfettered and unguided and enable the Collector, at his will, to discriminate between two defaulters who are similarly situated and thereby violate the behests of the equal protection clause of the Constitution.

This argument appears to us to be founded on a misapprehension about the true meaning of section 46(2).

On a proper reading, that subsection does not prescribe two alternative modes of procedure at all.

All that the sub section directs the Collector to do is to proceed to recover the certified amount as if it were an arrear of land revenue, that is to say, he is to adopt the procedure prescribed by the appropriate law of his State for the recovery of land revenue and that in thus proceeding he is, under the proviso, to have all the powers a Civil Court has under the Code.

The sub section does not prescribe two separate procedures.

The statement to the contrary in the judgment of the Bombay High Court in Shaik Ali Ahmed vs Collector of Bombay(1) does not appear to us to be correct.

In our opinion the proviso does not indicate a different and alternative mode of recovery of the certified amount of tax but only confers additional powers on the Collector for the better and more effective application of the only mode of recovery authorised by the body of sub section (2) of section 46.

Viewed in this light, there is no question of the possibility of any discrimination at all.

This part of the argument cannot, therefore, be accepted.

The other way in which the protection of article 14 is invoked is founded on a comparison of the provisions of the different laws adopted by the different States for the recovery of land revenue.

Section46(2) of the Indian Income tax Act requires the Collector, on receipt of the requisite certificate from the Incometax Officer, to proceed to recover from the assessee the amount specified in the certificate as if it were an (1) I.L.R. , 155. 895 arrear of land revenue.

This means that the Collector must take such proceedings as he would have done if he were engaged in recovering land revenue.

Thus a Collector in the City of Bombay in recovering the certified amount of income tax must proceed under Ejection 13 of the Bombay City Land Revenue Act, 1876 (Bombay Act II of 1876) and arrest and detain him far the period therein mentioned which, prior to the 8th October 1954, might have worked out to a period much longer than six months.

On the other hand, the defaulting assessee in all other parts of the State of Bombay has to be proceeded against under section 157 of the Bombay Land Revenue Code, 1879 (Bombay Act V of 1879) under which he cannot be detained for more than the period limited by the Code of Civil Procedure for the detention of a judgment debtor in execution of a decree for an equal amount of money.

So, even in one State there were two procedures to which defaulting assessees could be subjected according as they were in or outside the City of Bombay.

A Collector in the State of Madras in recovering the certified amount of income tax has to proceed under section 48 of the Madras Revenue Recovery Act, 1864 (Madras Act II of 1864).

When the Collector finds that the certified amount cannot be liquidated by the sale of the property of the defaulting assessee and the Collector has reason to believe that the defaulter is wilfully withholding payment or has been guilty of fraudulent conduct in order to evade payment, the Collector may, under section 48 of that Act, cause the arrest and imprisonment of the defaulter, not being a female.

But that section goes on to say that no person shall be imprisoned for a longer period than two years or for a longer period than six months if the arrear does not exceed Rs. 500 or for a longer period than three months if the arrear does not exceed Rs. 50.

A Collector in West Bengal proceeding to recover the certified amount under the Bengal Public Demands Recovery Act, 1913 (Bengal Act III of 1913) cannot, under section 31 of that Act, direct the detention of the defaulting assessee in prison for more than six months if the amount is more 896 than Rs. 50 or in other cases for more than six weeks.

The defaulter in the Punjab cannot, under section 69 of the Punjab Land Revenue Act, 1887 (Punjab Act XXVII of 1887), be kept in civil jail for more than one month.

Section 148 of the U. P. Land Revenue Act) 1901 (U.P. Act III of 1901) limits the period of detention to 15 days and also exempts many persons, e.g. Talukdars and women, from any imprisonment.

The Assam Land and Revenue Regulation, 1886 (Reg.

I of 1886) does not insist on imprisonment at all.

A cursory perusal of the provisions of the different Acts referred to above will at once show that in the matter of recovery of arrears of land revenue the different States have prescribed different machinery, some obviously harsher than others.

The argument is that income tax being a subject with respect to which the Union alone may make law and the recovery of it being the Union responsibility, the machinery for the recovery of income tax should be framed on a uniform all India basis, for to the Union all defaulters who may not pay up the Union demand are similarly situated; but the Indian Income tax Act by section 46(2) authorises the Collectors in different States to adopt machinery which differs from State to State, so that defaulters are treated differently in different States.

The contention is that section 46(2) which sanctions such discrimination is clearly violative of the equal protection clause of the Constitution and has, therefore, become void under article 13 (1).

The learned Attorney General appearing for the respondents seeks to meet the aforesaid argument in two ways.

In the first place, he urges that the impugned sub section does not by itself make any discrimination.

All that it says is that the certified amount of income tax is to be recovered as if it were an arrear of land revenue and there its operation ends.

In recovering the certified demand the Collector has to have recourse to the machinery available to him for enforcing a demand for arrears of land revenue but the provisions of the State laws which prescribe that machinery are not incorporated in section 46(2).

897 If the State laws are discriminatory that vice cannot be imputed to section 46(2).

There is good deal to be said on either side.

The State laws prescribe the procedure for the recovery of arrears of land revenue only and they are not, in terms and by themselves, concerned at all with the recovery of income tax demand.

That machinery is made available for the purpose of recovery of income tax by virtue only of section46(2) of the Indian Income tax Act.

In the matter of recovery of income tax the Collectors adopt theprocedure laid down by the State laws, not because the State laws enjoin them to do so but because section 46(2) directs them to do so.

In other words, it is section 46(2) which tells the Collectors of Madras to follow the procedure under section 48 of the Madras Revenue Recovery Act, 1864 as if those provisions are set out in the Indian Income tax Act in extenso and it tells the Collectors of all other States to adopt the procedure prescribed by their own State laws as if the provisions prescribing that procedure were set out in that section.

In such a situation it is a plausible argument to say that all the provisions of all the State laws are, mutatis mutandis, to be read into section 46 (2) and that, therefore, if there be any vice of discrimination in the State laws that vice cannot but be regarded as having crept into section 46(2).

On the other hand, to hold that all the provisions of all the State laws for recovery of arrears of land revenue have been referentially incorporated in section 46(2) of the Indian Income tax Act will lead us into difficulties.

Will the subsequent amendments of the State laws be also incorporated in section 46(2)? Section 46(2) of the Indian Income tax Act having incorporated the State laws as they then stood, how can any State Legislature which has no power to make any law with respect to income tax alter or amend section 46(2)? Are the State laws as incorporated in section 46(2) at the time it was enacted to be treated as crystallised and to be applied by the Collectors, although the State laws for the recovery of arrears of land revenue may be materially altered by sub 898 sequent amendment? These are some of the questions which will have to be answered before we can come to a decision on this point.

In the view we take of the second part of the learned AttorneyGeneral 's argument to which we shall presently refer it is not necessary for us to express any opinion on this part of his argument.

The learned Attorney General then argues that assuming that section 46(2) by incorporating the different State laws which are not uniform has become discriminatory such discrimination is permissible and does not offend the fundamental right guaranteed by article 14.

This argument appears to us to be well ,founded.

The meaning, scope and effect of the article in question have been explained by this Court in a series of decisions beginning with that in Chiranjit Lal Chowdhury vs The Union of India(1) and ending with that in Budhan Chowdhury and others vs The State of Bihar(1).

The following passage in the unanimous judgment of the Full Court in the last mentioned case at p. 1049 briefly summarises the true intendment of the constitutional provision: ". . . . . . .

It is now well established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation.

In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question.

The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like.

What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration.

It is also well established by the decisions of this Court (1) [1950) S.C.R. 869.

(2) ; 899 that article 14 condemns discrimination not only by a substantive law but also by a law of procedure".

The respective contentions now put forward as to the validity or otherwise of section 46(2) of the Indian Income tax Act have to be judged in the light of the principles so laid down by the Full Court.

The Indian Income tax Act imposes a liability on persons who are amenable to it to pay the tax assessed against them.

The assessed amount is a public demand of the Union and has to be recovered, if not voluntarily paid up.

The assessees are scattered all over the Union and machinery has to be devised for that purpose.

On looking round the Union finds that there is machinery in every State for recovery of land revenues which are State demands.

Each State in its wisdom has devised a machinery which it has considered appropriate and suitable for the recovery of its own public demand.

As was said by the Supreme Court of America in Middleton vs Texas Power and Light Company(1) "There is a strong presumption that a legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds".

It is conceded that each State is well within its rights to devise its own machinery for the recovery of its own public demand and that no person belonging to one State can complain that the law of his State is more rigorous than that of the neighbouring state.

The reason is obvious, for the people of one State are not similarly situated as people of another State.

Their needs, as understood by their own Legislature, are different from those of the people of other States.

If in the matter of recovery of arrears of land revenue defaulters of one State cannot complain of denial of equal protection of the laws on the ground of the difference in the modes of recovery prevailing in other States, can it be said to be unreasonable for the Union to adopt, for the recovery of its public demand from defaulters of each State, the same mode of recovery (1) ; , 157.

114 900 of public demand prevailing in that State? Here the defaulters are classified on a territorial, or geographical basis and this basis of classification has precisely the same correlation to the object of the Indian Income tax Act as it has to the object of the different Public Demands Recovery Acts.

The objects of the two Acts in this behalf are in pari materia and the same considerations must apply to both.

People of each State are familiar with and used to the coercive processes which each State finds it necessary to impose on its own people for the recovery of public demand and there can be no hardship and consequently no objection to their being put to the same processes for the recovery of the public demand of the Union.

The grouping of the income tax defaulters into separate categories or classes Statewise is certainly a territorial classification which is based on an intelligible differentia and the subjection, for the purposes of the recovery of the certified demand, of each of such classes of defaulters to the same coercive process devised by their own State, on a consideration of local needs, for the recovery of their own public demands, cannot be regarded as bereft of a reasonable nexus or correlation between the basis of classification and the object sought to be achieved by the Indian Income tax Act any more than it can be so regarded with respect to the respective State laws.

The fact that the income tax demand is a Union public demand appears to us to make no difference in the legal position.

The Indian Income tax Act classifies people into various groups for the purpose of imposing the tax and taxes them differently, e.g., insurance companies which are taxed differently from an ordinary business concern and in some cases exempts them altogether, e.g., agriculturists and persons with income below a certain level.

There can, on the same principle, be no objection to people of a backward area who may be in need of aid in the shape of tax remission to be exempted from 'taxation either wholly or in part.

If this is right when a question of imposition is concerned, it cannot be wrong when the matter is one of recovery.

The two together make up the full measure of the 901 burden and if it is permissible to vary the burden at one end it must be equally valid to vary it at the other for the same or similar reasons.

It is said that the income tax demand being a Union demand there should be uniformity in the punishment to be, meted out to defaulters and it can be done easily by suitably amending section 46(2) so as to provide for the detention of all defaulters for the same period in all cases in all States.

In the first place, it is a fallacy to regard arrest and detention.

of a defaulter who fails to pay income tax as a punishment or penalty for an offence.

It is a coercive process for recovery of public demand by putting pressure on the defaulter.

The defaulter can get himself released by paying up the dues.

In the next place, the Court is only concerned to interpret the law and, if it is valid, to apply the law as it finds it and not to enter upon a discussion as to what the law should be.

The whole problem before us is whether the apparent discrimination can be supported on the basis of a permissible classification.

The case of Bowman vs Lewis(1) is in point.

We do not, however, find it necessary to express any opinion on the extreme contention urged by the learned Attorney General, on the authority of that decision, that a mere territorial classification, by itself and without anything else, is enough to place the law beyond the operation of the equal protection clause.

Indeed, in that very case it was recognised that it was not impossible that a distinct territorial establishment and jurisdiction might be intended as or might have the effect of discrimination against a particular race or class where such race or class should happen to be the principal occupants of the disfavoured area.

For the purposes of this case it will suffice to say that the discrimination complained of is not unconstitutional for the simple reason that the impugned law is based on a territorial classification having a reasonable nexus or correlation between that basis of classification and the object sought to be achieved by the Act.

Our decision in The State of Rajasthan vs Rao Manohar Singhji(2) which is relied on by learned counsel for the petitioner is easily (1) ; ; (2) ; 902 distinguishable on facts for, the law impugned in that case for the first time imposed certain disabilities on Jagirdars of a certain area of the State and there was no evidence that those Jagirdars were in any way different from the Jagirdars of the other areas of the State.

In the present case the classification has been made Statewise and it is clear that in the matter of payment of public demands of the States the people of different States are not similarly situated and their own States have imposed on them such coercive processes as the circumstances and needs of each State require.

The law impugned before us has only adopted, for its own purpose, the same coercive process which was devised by the States for their own purposes which are closely akin or similar to the purpose of the Union.

The same or similar considerations apply to both cases.

There is the same or similar correlation between the basis of classification and the object sought to be achieved by the Indian Incometax Act.

To deny this power to the Union on constitutional grounds urged before us will lead us to hold that no new offence created by law can be made triable according to the procedure laid down in the Code of Criminal Procedure, for that Code sanctions different modes of trial in different areas, namely, by a Section 30 Magistrate in some areas, by the Sessions Judge with assessors in certain areas and by the Sessions Judge with jurors in other areas.

Adoption of an existing machinery devised for a particular purpose cannot, if there be no vice of unconstitutionality in the machinery render it unconstitutional if it is made to subserve a purpose closely akin or similar to the purpose for which it bad been devised.

The first objection formulated by learned counsel for the petitioner must, therefore, be rejected.

As already stated under section 46 (2), the Collector, on receipt of the certificate from the Income tax Officer, has to proceed to recover the certified demand as if it were an arrear of land revenue.

This means that the Collector of a particular place has to take steps as indicated in the State law relating to the recovery of arrears of land revenue.

As already stated, in the State of Bombay there are two 903 statutes regulating the procedure for the recovery of arrears of land revenue according as the defaulter resides in the City of Bombay or in any other area within the State of Bombay.

Section 13 of the Bombay City Land Revenue Act, 1876 applies to the City of Bombay and section 157 of the Bombay Land Revenue Code, 1879 applies to the rest of the State.

Prior to the 8th October 1954 the portion of section 13 of the Bombay City Land Revenue Act, 1876 which is relevant for our present purpose was as follows: "If the sale of the defaulter 's property shall not produce satisfaction of the demand, it shall be lawful for the Collector to cause him to be apprehended and confined in the civil jail under the rules in force at the Presidency for the confinement of debtors, for which purpose a certificate of demand under the Collector 's signature sent with the defaulter shall be the sheriff 's sufficient warrant, equally with the usual legal process in ordinary cases of arrest in execution of judgment for debt: Provided, however, that such imprisonment shall cease at any time upon payment of the sum due, and that it shall in no case exceed one day for each rupee of the said sum".

Section 157 of the Bombay Land Revenue Code, 1879 which provides for the arrest and detention of the defaulter residing outside the City of Bombay Contains the following proviso: "Provided that no defaulter shall be detained in imprisonment for a longer period than the time limited by law in the case of the execution of a decree of a Civil Court for a debt equal in amount to the arrear of revenue due by such defaulter".

A cursory perusal of the two sections will show at once that the procedure prescribed by section 13 of the Bombay City Land Revenue Act, 1876 for the recovery of arrears of land revenue was harsher and more drastic than the procedure laid down in section 157 of the Bombay Land Revenue Code, 1879 in that a defaulter residing in the City of Bombay could be kept in detention for a day for every rupee of the arrears which might considerably exceed the maximum period of six months which is the period 904 limited by the Code of Civil Procedure for the detention of a judgment debtor in civil jail.

The argument is that on the advent of the Constitution section 13 of the Bombay City Land Revenue Act, 1876 became void under article 13(1) in that it denied to the Bombay defaulter equality before the law in comparison with the defaulter outside the City of Bombay, for he could be detained for a longer period of time.

In the view we have taken, it is not necessary to express any opinion whether the discrimination brought about by the two sections was supportable on the ground of a reasonable classification based on territorial considerations so as not to offend the constitutional inhibition.

Assuming, then, but not deciding, that section 13 of the Bombay City Land Revenue Act, 1876 became inconsistent with the fundamental right guaranteed by article 14 and, therefore, became void to the extent of such inconsistency, it was not, as recently explained by this Court in Bhikaji Narayan Dhakras vs The State of Madhya Pradesh, Nagpur and Another(1), obliterated from the statute book for all times or for all purposes or for all people.

The effect of article 13(1) is that the law could not stand in the way of the enjoyment of fundamental rights.

The law was not dead.

Further, the law was amended on the 8th October, 1954 when the proviso to section 13 quoted above was replaced by the following proviso: "Provided that such imprisonment shall cease at any time upon payment of the sum due and that it shall in no case exceed (i) A period of six months when the sum due is more than Rs. 50; and (ii)A period of six weeks in any other case.

" This amendment is nothing less than an enactment of a new provision.

It lays down a new law which is similar to the law laid down by section 157 of the Bombay Land Revenue Code, 1879.

Therefore, the disparity that prevailed between the original proviso to section 13 of the Bombay City Land Revenue Act, 1876 and the proviso to section 157 of the Bombay Land Revenue Code,, 1879 is now removed, The (1) ; 905 disparity between the two provisions as they originally stood being thus eliminated, the vice of unconstitutionality is also removed and section 13 of the Bombay City Land Revenue Act, 1876, as it now stands, cannot be assailed as repugnant to article 14 of the Constitution.

It was faintly suggested that as the assessment proceedings had been started and the certificate had been issued by the Income tax Officer to the Additional Collector of Bombay and the Additional Collector issued a notice of demand and actually attached the properties prior to the amendment, the assessee must be governed by section 13 as it originally stood and not by it as subsequently amended.

We do not think there is any substance in this contention.

It is true that the warrant of attachment of the property was issued on the 24th March 1954 but the sale proclamation was issued and the sale was actually held after the date of amendment.

The defaulting assessee might have paid up the dues in which case there would have been no occasion for sale.

It is, therefore, his default that occasioned the sale.

Again, the sale proceeds might have been sufficient to cover the certified demand,, in which case there would have been no occasion for the issue of warrant for his arrest.

It is only after the sale proceeds were found to be insufficient to satisfy the assessed amount and the assessee failed to pay up the balance that the question of the arrest of the defaulter arose.

By that time section 13 had been amended and the warrant of arrest was issued on the 7th June 1955, that is to say, long after the amendment of the section.

In our opinion, the second ground urged by the learned counsel must also be negatived.

We may mention that our attention was drawn to the decision of the Madras High Court in Erimmal Ebrahim Hajee, vs The Collector of Malabar(1) but learned counsel could not rely upon it as an authority as it was itself under appeal before this Court.

The result, therefore.

, is that this application must be dismissed.

(1) 906 CHANDRASEKHARA AIYAR J. I agree rather reluctantly.

The reluctance is not because there is anything in the reasoning of the judgment pronounced just now by my Lord which does not appear to be sound but because I am not happy about the result.

We have to face and accept wholly different consequences for non payment of income tax according as the assessee belongs to one State or another.

The nature of the tax is one and the same, and it is levied under a single Central Act, and yet the ultimate coercive processes for recovery differ in nature and extent between State and State.

We have to attribute to the legislature a rational classification based on geographical areas, the susceptibilities of people in those areas, and their reactions to the adoption of methods of recovery.

For arrest and detention, wilful default or fraudulent conduct is required in Madras.

In Assam, there can be no imprisonment at all.

The periods of detention vary between Bengal, U.P. and the Punjab.

Taluqdars in U.P. are completely exempt.

Are we to assume that people in Madras are more amenable and generally ready and willing to pay as compared with those in Bombay who are a tenacious lot and must be subjected to a longer process of detentive coercion? Are the Talaqdars in U.P. exempt from arrest because of possible political repercussions if such influential persons are subjected to such treatment? What is the rationale in providing different periods of detention for Bengal and the Punjab? We must be in a position to postulate some reasonable basis for the differentiation and we cannot get away from this necessity by vague references ' to the wisdom of the legislature or by indulging in pure speculation as to what might have been at the back of its mind.

Speaking broadly, for the enforcement of the levy of a central tax like the Income tax there should be uniformity of procedure and identity of consequences from non payment.

The machinery for recovery might be different between the several States but the defaulting assessees must be put on the same footing as regards the penalties.

But the law as it now stands can be supported on the grounds mentioned by my Lord and I do not propose to differ.

Summary: The assesses carrying on business in the City of Bombay was assessed to income tax for the years 1943 44 to 1947 48 and 1951 52 by the Income tax Officer C 1 Ward Bombay.

Summary: As the assessee did not pay the income tax due the Income tax Officer issued in April 1951 to the Additional Collector of Bombay a recovery certificate under section 46(2) of the Indian Income tax Act, 1922.

Summary: In February 1954 the Additional Collector issued a notice of demand and as no payment was made he attached the good will and tenancy rights of the assessee 's premises by a warrant of attachment dated 24th March 1954, 888 A sale was held in February 1955.

Summary: The sale proceeds not being sufficient to satisfy the assessed tax the Additional Collector issued a notice under section 13 of the Bombay City Land Revenue Act, 1876 requiring the assessee to appear before him and show cause why he should not be apprehended and confined to civil prison in satisfaction of the said certified demand.

Summary: In default of assessee 's appearance and showing cause a warrant for his arrest was issued under section 13 of the Bombay Act, II of 1876 and he was actually arrested on 1st July 1955.

Summary: An application to the Bombay High Court under article 226 of the Constitution for a writ in the nature of a writ of habeas corpus having proved unsuccessful, an application under article 32 was filed in the Supreme Court for the same relief.

Summary: Two main points urged on behalf of the assessee were: (a) that section 46(2) of the Indian Income tax Act under which the Income tax Officer issued the recovery certificate to the Additional Collector of Bombay was void, under article 13 (1) of the Constitution in that it offended article 21 and article 14 of the Constitution; (b)that section 13 of the Bombay Land Revenue Act, 1876 (Bombay Act II of 1876) under which the warrant of arrest was issued by the Additional Collector was void under article 13(1) of the Constitution as the same was repugnant to article 14 of the Constitution.

Summary: Held (as regards a) (1) that there was no violation of fundamental rights under article 21 of the Constitution inasmuch as section 13 of the Bombay Act II of 1876 under which warrant of arrest was issued for the recovery of the demand certified under section 46(2) of the Indian Income tax Act constituted a procedure established by law.

Summary: Both section 13 of Bombay Act II of 1876 and section 46 of the Indian Income tax Act under which action had been taken against the assessee were not void and therefore no question of violation of funda mental rights under article 21 could arise at all) (ii)the contention that section 46(2) of the Indian Income tax Act provides for two different and alternative methods of recovery of the dues and clothes the Collector with the unfettered and unguided power to apply either of the two methods inasmuch as it enables the Collector at his will to discriminate between two defaulters who are similarly situated and thus violates the equal protection clause of the Constitution was without force because sub section (2) of section 46 does not prescribe two different procedures.

Summary: The proviso enacted therein does not indicate a different and alternative mode of recovery of the certified amount of tax but only confers additional powers on the Collector for the better and more effective application of the only mode of recovery authorised by the body of sub section (2) of section 46 and therefore there was no question of possibility of dis crimination at all; (iii)the further contention that section 46(2) of the Indian Incometax Act violates the equal protection clause of the Constitution and has thus become void under article 14 of the Constitution as section 46(2) required the Collector,on receipt of the requisite certificate from 889 the Income tax Officer, to recover the amount specified in the certificate as if it were an arrear of the land revenue and there are different laws adopted by different States for the recovery of land revenues and thus there is discrimination on the ground that defaulters are treated differently in different States is also without force be cause discrimination complained of is a permissible classification and does not offend the fundamental right guaranteed by article 14 as the grouping of the income tax defaulters in separate categories on classes State wise is a territorial classification which is based on an intelligible differentia and there is a reasonable nexus or co relation between the basis of classification and the object sought to be achieved by the Income tax Act.

Summary: The fact that the income tax demand is a Union public demand makes no difference in the legal position.

Summary: Held, (as regards b) that the contention that section 13 of the Bombay Act II of 1876 became unconstitutional under article 13(1) of the Constitution in that the procedure prescribed by section 13 of the Bombay Act II of 1876 in respect of a defaulter residing in the City of Bombay was harsher and more drastic than the procedure laid down in section 157 of the Bombay Act V of 1879 in respect of a defaulter residing outside the City of Bombay was without force because section 13 of the Bombay Act II of 1876 was amended on 8th October 1954 and a new law laid down a law similar to the law laid down by section 157 of the Bombay Act V of 1879 and thus the vice of unconstitutionality 'if any ' was removed.

Summary: State of Punjab vs Ajaib Singh & Another ([1953] S.C.R. 254), Shaik Ali Ahmed vs Collector of Bombay (I.L.R. , Chiranjit Lal Chowdhury vs The Union of India ([1950] S.C.R. 869), Budhan Choudhry and others vs The State of Bihar ([1955] 1 S.C.R. 1045), Middleton vs Texas Power and Light Company ; , Bowman vs Lewis (101 U.S. 22; , The State of Rajasthan vs Rao Manohar Singhji ([1954] S.C.R. 996), Bhikaji Narayan Dhakras vs The State of Madhya Pradesh, Nagpur and Another ([1965] 2 S.C.R. 589) and Erimmal Ebrahim Hajee vs The Collector of Malabar ([1954] , referred to.