Judgment :- J. KANAKARAJ, J. 1. Sri Siddheswari Peetam, popularly known as Sri Mounaswami Mutt (Math), Courtallam was founded at the turn of the century by His Holiness Sri Sivachidananada Saraswathi Swamigal. Out of the Padakanikas, the Swamigal acquired properties, agricultural lands and thopes. He also constructed the math, mandirs and quarters in the campus and called it ‘Sri Dattatraya Mandiram’. By his Will, dated 26.12.1943, he made a provision for a hereditary and perpetual succession of the Peedadhipatis. The math was exempted from the provisions of the Madras Hindu Religious Endowments Act 11 of 1927 till April, 1947. At the time of filing of the writ petitions, His Holiness Sri Trivikrama Ramananda Bharati Swami was the Peedadhipathi. He is said to have attained Siddhi on 23.7.1981. His nominee and his successor is His Holiness Sri Siva Chidananda Bharathi Swamigal, who assumed office on 12.1.1991. Writ Miscellaneous Petition No. 3582 of 1994 in Writ Petition No. 2695 of 1982 to bring on record the said His Holiness Sri Siva Chidananda Bharathi is accordingly allowed. The Madras Act 2 of 1927 was repelled and replaced by the Madras Act 19 of 1951. Under the latter Act, the temples and mutts were treated on the same footing as a religious institution. In the famous case viz., Sirur Math case (1952) 1 MLJ 557 ), the Supreme Court of India struck down several provisions of the 1951 Act, in so far as they were applicable to mutts. The levy of contribution payable to the Government was struck down on the ground that it amounted to a tax and there was no quid pro quo for the same. Consequently, by amending Act 27 of 1954, the Judgment of the Apex Court was given effect to. Thereafter, the present Tamil Nadu Hindu Religious and Charitable Endowments Act 22 of 1959 (hereinafter called as the Act) was enacted. In this Act also, Section 6 (13) defines mutt as a religious institution with properties attached thereto and presided over by a person. The word ‘religious institution’ is defined in Section 6(18) of the Act as a mutt temple or specific endowment. However, in view of the special position and status of a mutt as recognised by the Apex Court, the Act exempts mutt from the several provisions of the Act viz., Sections 21, 35, 36, 44 to 58 and 71 to 76 of the Act. However, in view of the special position and status of a mutt as recognised by the Apex Court, the Act exempts mutt from the several provisions of the Act viz., Sections 21, 35, 36, 44 to 58 and 71 to 76 of the Act. Section 23 of the Act has been held to be inapplicable to the mutts. Section 105(b) of the Act prevents the interference with any religious or spiritual functions of the head of a mutt. Section 107 of the Act says that the relevant provisions of the Act cannot intervene with the rights conferred on any religious denomination or any Section thereof attracted by Article 26 of the Constitution of India. 2. We are concerned in these writ petitions only with the levy of fees on religious institutions. Section 76 of 1951 Act provided for the levy of contribution fees and audit fees. That provision of law was struck down by the Supreme Court in Sirur Math case (cited supra). Consequently, an amendment was made by providing for payment of the contribution fees to the Commissioner in respect of the service rendered by the institution. Similarly, audit fees not exceeding 1-1/2 per cent was made payable to the Commissioner for meeting the departmental auditing of accounts. Under the present Act - of 1959, Chapter IX is captioned as ‘Finance’ Section 92 of the Act provides for payment of annual contribution to the Commissioner. Section 93 of the Act provides for recovery of costs and expenses incurred on legal proceedings. Section 94 of the Act provides for manner and method of recovery of the contribution and charges. Similarly rules have been framed called “Assessment, Levy, Recovery of Contribution, Costs Rules”. The Rules split the payment of annual contribution on a percentage of the income at the rates specified in the lable on a graded scale, ranging from 2 per cent on income not exceeding Rs. 1000/- to 7 per cent on income exceeding Rs. 2 lakhs. 3. Upto faslis 1380, the petitioner had paid contribution and audit fees against the demand made on 25.11.1972. The petitioner sent objections. Those objections were rejected on 4.2.1982 and in respect of the subsequent faslis, the petitioner has been raising objections. The contention of the petitioner is that the levy of fees in unlawful and ultra vires the Constitution of India. Upto faslis 1380, the petitioner had paid contribution and audit fees against the demand made on 25.11.1972. The petitioner sent objections. Those objections were rejected on 4.2.1982 and in respect of the subsequent faslis, the petitioner has been raising objections. The contention of the petitioner is that the levy of fees in unlawful and ultra vires the Constitution of India. It is particularly stressed that mutts are denominational in nature and very little services are rendered by the department and they cannot be treated on par with temples and consequently, the exaction of fees without corresponding services is illegal. Writ Petition No. 13474 of 1988 was occasioned because of the amending Act 2 of 1987, in and by which the maximum levy of contribution and audit fees were raised to 10 per cent and 4 per cent respectively. The grounds of objection are set out as follows: (i) Treating mutts and temple alike in the matter of contribution of fees amounts to offending of Article 14 of the Constitution of India; (ii) The fixation of graded scale of fees shows that the amount claimed is not based on the actual cost of services rendered by the department; (iii) So far as the mutts are concerned, the Act itself restricts the superintendence of the department and therefore, the collection of fees uniformly does not pass the test of quid pro quo ; (iv) There is a separate fund called the common good fund, where voluntary contributions are deposited for renovation of temples. By Amending Act 23 of 1967, the Commissioner was empowered on a direction from the Government to transfer the surplus in the administrative fund to the common good fund. Therefore, it is clear that the collection of fees is not commensurate with the services rendered and the department is always building a surplus in the guise of levying fees. The contention is that the diversion of the accumulated surplus to other causes, however, laudable would be illegal; and (v) The respondents have not been able to show detailed figures and accounts to justify the levy of contribution and the levy of audit fee. The contention is that the diversion of the accumulated surplus to other causes, however, laudable would be illegal; and (v) The respondents have not been able to show detailed figures and accounts to justify the levy of contribution and the levy of audit fee. In any event, there is no justification for the enhancement made in respect of the levy of contribution to 10 per cent and 4 per cent and the subsequent enhancement in respect of the levy of contribution to 11 per cent by amending Act 39 of 1996, which are challenged in Writ Petition No. 13474 of 1988. 4. Counter affidavits have been filed in both the writ petitions, justifying the levy of contribution and audit fees. It is also pointed out that there are a number of decisions of the Supreme Court as well as this Court, which upheld the validity of the levy and therefore it is contended that both the writ petitions do not deserve for consideration. In particular, reference is made to the amendment of the rules made in 1987, giving details of the levy and also to the statement of account of the Hindu Religious and Charitable Department showing the net deficit of all the years commencing from 1977-1978 to 1989-1990. 5. We will preface our Judgment by observing that the question of levying fees in respect of religious institutions has been the subject matter of consideration by several Judgments of this Court. Therefore this is nothing but an exercise done by the High Court from time to time taking note of the facts and circumstances, arising out of the passage of time and the development of the case law. We will therefore proceed to being from the beginning viz., from Commissioner, H.R..& C.E. v. L.T. Swamiar ( AIR 1954 SC 282 ). No doubt, in that case the Thirtha Swamiar of Sri Shirur mutt challenged the interferences by the department in the matter of framing of a scheme in connection with the mutt. On 12.12.1951, the Swamiar filed a Writ petition, seeking a writ of prohibition to prohibit the Endowment Board from taking further steps in the matter of settling a scheme. Several provisions of the Act of 1927 were challenged as being inapplicable to mutt. The High Court upheld the contention of the Swamiar. The department took up the matter to the Supreme Court of India. Several provisions of the Act of 1927 were challenged as being inapplicable to mutt. The High Court upheld the contention of the Swamiar. The department took up the matter to the Supreme Court of India. The Supreme Court of India confirmed the Judgment of the High Court and with regard to levy of fees, it was held that the levy was really a tax, because there was no comparable services rendered by the department. As a tax, the levy was beyond the competence of the State Legislature. The Apex Court has laid down the distinction between a tax and a fee and has observed as follows: The distinction between tax and a fee lies primarily in the fact that a tax is levied as a part of a common burden while a fee is a payment of the special benefit or privilege. Fees confer a special capacity although the special advantage, as for example in the case of registration fees for documents or marriage licences, is secondary to the primary motive of regulation in the public interest, vide Findlay Shirras on ‘Science of Public Finance’. Vol I page 202. Public interest seems to be at the basis of all impositions, but in a fee it is some special benefit which the individual receives. As Seligman says, it is the special benefit accruing to the individual which is the reason for payment in the case of fees; in the case of a tax, the particular advantage if it exists at all is an incidental result of State Action vide Seligmans Essays on Taxation P. 408.” Holding that the levy was in the nature of a tax, it was held to be beyond the legislative competence of the State Legislature. 6. We have already noticed that after the Judgment of the Supreme court, an amendment was made to the Act by Tamil Nadu Act 27 of 1959 and thereafter, the present Act (Tamil Nadu Act 22 of 1959) came to replace the earlier Act. The attempt of the respondents had been to give effect to the Judgment of the Apex Court in the new enactments. 7. Even so, several applications were filed by certain madadhipathees, challenging the amendments effected by the amending Act 27 of 1954. The attempt of the respondents had been to give effect to the Judgment of the Apex Court in the new enactments. 7. Even so, several applications were filed by certain madadhipathees, challenging the amendments effected by the amending Act 27 of 1954. It has to be remembered that a Division Bench of this court, while dealing with the above challenge in Sudhindra v. H.R. & C.E. Commr (1956 Madras 491) considered the case only with reference to the mutts and madadhipathees with reference to Section 76 of the Act, the contributions were made payable to the Commissioner and Division Bench held that the amended provisions are valid except Sub-section (5) of Section 76 of the Act. So far as Section 86 (5) of the Act is concerned, it is but necessary to quote the sub section before we proceed to refer to the finding of the Apex Court. That Sub-Section reads as follows: “Whenever there is any surplus after meeting all the charges referred to in the foregoing sub section i.e. sub section 4, it shall be lawful for the Commissioner, acting suo motu or on an application to make grants to poor and needy religious institutions for carrying out repairs and renovation subject to such rules as may be framed by Government in this regard.” The Explanation ran: “Any religious institution, the annual income of which is less than two hundred rupees, shall not be liable to pay any contribution to the Commissioner as required by sub section (1)” The Supreme Court further held that however laudable the object of the Legislature in providing for the poor and need religious institution and whatever be the extent of good faith in the Legislature enacted the said provision of law, the same was beyond the legislative competence of the State Legislature. Observed the Supreme Court: “Obviously a contribution levied for the sole purpose, specified in sub section (5) would not be a fee. There would be no quid pro quo basis at all for such an exaction” The following passage is also relevant for our purpose: “A levy, deliberately designed to provide for a surplus, unreasonable in its quantum, would certainly be illegal. But then, we should also realise that an arithmetical precision just balancing the income and expenditure in any given year, is impossible. But then, we should also realise that an arithmetical precision just balancing the income and expenditure in any given year, is impossible. As the learned Advocate General pointed out if there is a surplus in the fund, the benefit of that should go only to those who have to pay the prescribed fee. The rate of the fee could be reduced to maintain the just relation between the fee levied and the services rendered” The said Division Bench Judgment went upto the Supreme Court and the same is reported in S.T. Swamiar v. Commr. H.R. & C.E ( AIR 1963 SC 966 ). While confirming the Judgment of the Division Bench of this Court, the Supreme Court had this to say: A levy in the nature of a fee does not cease to be of that character merely because there is an element of compulsion or coerciveness present in it. nor is it a postulate of a fee that it must have direct relation to the actual services rendered by the authority to each individual who obtains the benefit of the service. If with a view to provide a specific service, levy is imposed by law and expenses for maintaining the service are met out of the amounts collected there being a reasonable relation between the levy and the expenses incurred for rendering the service, the levy would be in the nature of a fee and not in the nature of a tax. It is true that ordinarily a fee is uniform and no account is taken of the varying abilities of different recipients. But absence of uniformity is not a criterion on which alone it can be said that it is of the nature of a tax. A fee being a levy in consideration of rendering service of a particular type, correlation between the expenditure incurred by the Government and the levy must undoubtedly exist, but a levy will not be regarded as a tax merely because of the absence of uniformity in its incidence, or because of compulsion in the collection thereof, nor because some of the contributories do not obtain the same degree of service as others may.” 8. Having regard to the above decisions, an argument is now advanced stating that the very fact that the respondents contemplate about a surplus being built up shows that the levy is not commensurate with the services rendered. 9. Having regard to the above decisions, an argument is now advanced stating that the very fact that the respondents contemplate about a surplus being built up shows that the levy is not commensurate with the services rendered. 9. Learned counsel for the petitioner relied on certain statistics for the purpose of saying that while the number of temples in the State have increased considerably the number of mutts have almost been static. Therefore, with reference to the mutts there is no scope for increasing the contribution. It is also pointed out that the respondents have made no attempt to justify the levy of contribution fees and audit fees and in any event, no justification has been made for increasing the fees. A catena of decisions have been cited to impress upon us the invalidity of the levies. We do not certainly propose to refer to those decisions because the very Act has been subjected to several challenges and has now stood the test of time. There is absolutely no need or necessity to refer to rely on the decisions on the other subjects and seek to reopen the entire matter. 10. We will now refer to one more direct Judgment on the very Act, which to a large extent prevents us from considering the arguments of the petitioner in an elaborate manner. In writ petition No. 3203 of 1970, a learned single Judge was called upon to decide the validity and correctness of the contribution fee and the audit fee with reference to Sri Vanamamalai Mutt Nanguneri, Trinelveli District. The entire case was projected in almost an identical manner as in the present case. To be more exact, the points that were urged in the said case are as follows: (i) The general treatment accorded to other institutions ought not to be applied to mutts; (ii) The levy of contribution on the basis of a named percentage relating to the income of the mutt is an arbitrary scale prescribed by the rule making authority; and (iii) There is abundant available surplus in the fund and the availability of surplus is an indicia that the total fee collected under the head disproportionate to the cost of the services rendered by the department towards the mutts. All these arguments were rejected and with reference to the surplus fund, learned single Judge has observed as follows: “Regarding the submission that there is a conspicuous surplus in the fund it is said that with reference to statistics it is seen that over 46 years only a surplus of about 65 lakhs and odd is available, meaning thereby that on the average, there was only a surplus of about Rs. 1 to 1-1/2 lakhs per year. If once it is established that a major portion of the contribution collected is utilised for services rendered and towards audit fees, the observations of the Supreme Court in the Delhi Cloth and General Mills Co. Ltd. v. The Chief Commissioner, Delhi ( AIR 1971 SC 344 ) would govern the situation and the percentage fixed under the Rules has a nexus to the object for which the collection is made.” Learned single Judge has very elaborately considered all the points and dismissed the writ petition. The same was confirmed in Writ Appeal. No. 389 of 1974 by a Division Bench of this Court and being an affirming Judgment, the Division Bench of this Court made a brief order. Regarding the question of surplus, the Division Bench observed as follows: “It is no doubt true that large surplus has been built up over several years by the surplus each year being accumulated and added to the fund. But, as we understood, the principle of correlation has nothing to do with it. If the characteristic of fee is that it is a payment made for the service rendered, mere should be correlation between the value’ of service and collections made. But, in applying the proportion, no arithmetical exactitude can be applied and a rough test will do. The correlation cannot be made on the basis that the department has accumulated a large fund by adding a surplus every year. But it is rather applied only as between the value of service rendered and the collections made each year. If the two are disproportionate as to affect the correlation, then of course, the fee is liable to be attacked as unreasonable and excessive. But that is not the case here.” It is admitted by the parties that in Civil Appeal No. 1010 of 1975 the above Judgments were confirmed by the Supreme Court of India. 11. If the two are disproportionate as to affect the correlation, then of course, the fee is liable to be attacked as unreasonable and excessive. But that is not the case here.” It is admitted by the parties that in Civil Appeal No. 1010 of 1975 the above Judgments were confirmed by the Supreme Court of India. 11. Before referring to the particulars and information given by the respondents in the counter-affidavit, three more recent Judgments of the Supreme Court have got to be adverted to. In Sir Silk Ltd. v. Textiles Committee and others (JT 1988 (4) SC 592), the argument that no individual trader was receiving benefit from the services rendered was negated. The Court held that the purpose of levy being quality control of textiles, the interpretation, therefore, should be the benefit of the textile industry as such though it has no specific relationship to the particular industry, which bears the burden. The broad correlation between the imposition of fee and the nature of the service rendered to the entire textile industry satisfied the test of quid pro quo, though no specific service was rendered to the payer of the fee. In Kishan Lal Lakshmi Chand & others v. State of Haryana & others (JT 1993 (4) SC 426), the Supreme Court had to deal with the levy of market fee under the Haryana Rural Development Act 1986. Observed the Supreme Court in the said decision as follows: “the traditional view that there must be actual quid pro quo for a fee has undergone a sea change. The distinction between a tax and a fee lies primarily in the fact that a tax is levied as part of a common burden, while a fee is for payment of a specific benefit of privilege although the special advantage is secondary to the primary purpose of regulation in public interest, if the element of revenue for general purpose of state predominates the levy becomes a tax” In Secretary to Govt. of Madras v. P.R. Sriramulu (AIR 1996 SC 767), The Supreme Court reversed the Judgment of the High Court in relation to the levy of Court fee and held that the levy was beneficial to the general public. of Madras v. P.R. Sriramulu (AIR 1996 SC 767), The Supreme Court reversed the Judgment of the High Court in relation to the levy of Court fee and held that the levy was beneficial to the general public. Observed the Supreme Court as follows: “Having regard to the decisions and various pronouncements cited above, it is difficult to accept the reasoning and the view taken by the High Court in the impugned Judgment. As discussed above, if the essential character of the levy is that some special service is intended as quid pro quo to the class of citizens which is intended to be benefited by the service and a broad and general correlation between the amount so collected and the expenses incurred in providing the services is found to exist, then such levy would partake the character of a ‘fee’, irrespective of the fact mat such special services for which the amount by levy of fee is collected incidentally and indirectly benefit the general public also.” 12. In the wake of the above Judgments, the reliance placed on the full Bench decision of this Court in Coimbatore Municipality v. C.G. Subbiah (AIR 1980 Madras 130), does not have much relevance and cannot be relied, upon to invalidate the impost. 13. What remains now is to refer to the counter affidavit of the respondents, wherein detailed particulars are given to substantiate the levy. It is enough if we refer to the counter-affidavit filed in Writ Petition No. 13474 of 1988. It is first contended that the services rendered by the department in relation to mutts are not in any way lesser than the services rendered to the temples. It is rightly pointed out that supervisory control cannot be measured actually in respect of each and every institution. Reference is also made to the gesture of the Government in exempting the religious institutions upto and inclusive of the annual income of Rs. 2000/- from the levy of contribution from 1.7.1987. It is also pointed out that due to the increase in the number of institutions, the activities of the department have also become manifold and more regions and divisions were created to cope up with the increase in the work. It is argued that the department is playing a vital role in bringing harmony and peace to the society, eradicating untouchability and other social evils. It is argued that the department is playing a vital role in bringing harmony and peace to the society, eradicating untouchability and other social evils. Mass marriages, common feasts, propagating the ideals of ancient saints, savants and poets are being undertaken by the department. Several temples have been renovated and the tanks to the temples have also been repaired. Similarly, temple cars have been repaired in many cases. There is a change in the introduction of the time-scale of pay of the Government servants at various levels. The allegation regarding the common fund is repudiated and it is stated as follows in the counter affidavit: “It is highly imaginary on the part of the petitioner to contend that the accumulated surplus out of the contribution and audit fees swelled to several crores of rupees year after year and thus there was no transfer of surplus funds from the Hindu Religious and Charitable Endowments Administration Fund to Common Good Fund. The real fact is that the Hindu Religious and Charitable Endowments Administration Fund is in deficit even to reimburse the amount to the consolidated fund of the state” The Rules framed under the Act in the year 1987 also specify the manner and method of levy of the fees. The statement of account attached to the counter affidavit shows that the department has been incurring a cumulative deficit from the year 1977-1978 till 1989-1990. The statements annexed show the total receipts and the cumulative total deficits. 14. Based on the above particulars given in the counter affidavit, if we apply the recent Judgments of the Supreme Court, there is absolutely no difficulty in justifying the levies, as well as the increase in the levies challenged in the present two writ petitions. Except to say that this is an exercise done from time to time, we do not find any substance in the allegations of the writ petitioner. Both the writ petitions therefore fail and they are accordingly dismissed. There will be no order as to costs.