Judgment :- JUDGENT The plaintiffs are the appellants and the appeal is preferred against the judgment and decree dated 19.04.2004 in A.S.No.67 of 2002 on the file of the Additional Sub-Court, Nagercoil confirming the judgment and decree dated 08.11.2002 in O.S.No.36 of 1999 on the file of the Additional District Munsif Court, Nagercoil. 2. The suit was filed for declaration that the Executive Officer/Deputy Commissioner, Incorporated and Unincorporated Devaswam, Suchindrum, Nagercoil District and others are not entitled to collect any fee for special Dharsan of Devi Bhagavathi Amman Temple at Kanyakumari and for permanent injunction restraining the defendants from collecting the special fee. 3. The brief facts of the case is as follows: Originally the Kanyakumari District was under the administration of Cochin Monarchs and while so the worship of deity in various temples was free. After the re-organisation of new states, the present Kanyakumari District was formed on 01.01.1957. The custom and usage prevailing in the erstwhile Travancore-cochin namely, ‘free Dharsan’ in the temples continued to be in force. That being so the respondent/defendants announced that a ‘Special Dharsan fee’ is to be charged at Rs.10/- at Arulmigu Devi Bhagavathi Amman Temple at Kanyakumari. Questioning such levy of fees, the plaintiffs have filed the suit in the representative capacity for the reliefs as stated above. 4. The suit was resisted by the respondents/defendants on various grounds, inter alia, stating that the suit is not maintainable as the collection of fee for special Dharsan will not in any way affect the plaintiffs and there is no discrimination in Dharsan; the administration of the defendants shall not be questioned by the plaintiff and the fee is collected only to assist the aged, woman and similar handicapped persons to enable them to skip the common queue and provide them a special entrance for a Dharsan. 5. The learned Additional District Munsif, Nagercoil, dismissed the suit as not maintainable and on appeal by the plaintiffs, the learned subordinate Judge, Nagercoil, also confirmed the judgment and decree of the trial court. Therefore, the second appeal is filed on the following grounds; “1. that the que4stion before the courts below for consideration is whether the respondents/ defendants are authorized to impose an entry fee for Dharsan in Sri Devi Kanyakumari Amman Temple, contrary to time honoured custom and practice of free entry in to temple by all worshipers from time immorial. 2. Therefore, the second appeal is filed on the following grounds; “1. that the que4stion before the courts below for consideration is whether the respondents/ defendants are authorized to impose an entry fee for Dharsan in Sri Devi Kanyakumari Amman Temple, contrary to time honoured custom and practice of free entry in to temple by all worshipers from time immorial. 2. that the courts below failed to note that in kanyakumari Temple there was no custom for collection to worship god and only there is a fee fixed for performing poojas. 3. that the allegation that during, rush seasons the worshipers have to stand for long periods in queue as old, pregnant ladies, ailing peoples and people in a hurry find it difficult to stand in queue is no argument to impose a fee in the guise of a tax. For, if some people of have to be helped like the old and pregnant, there can be a separate arrangement without a change was not noted by the courts below. A temple is a place of equity and a man in hurry can not have a preference. 4. The written statement admit the proposed levy as ‘entrance fee’ and the law did not authorize. Both the courts below failed to understand and apply provisions of Sections 7 & 8 of the Tamilnadu (Transferred Territory) Extension of Laws Act (27/157) 5. The lower courts were wrong in dismissing the suit when DW1 has categorically admitted that in Travancore-Cochin (o which suit temple belonged) there is no special entrance fees till date”. 6. On admission of the second appeal, the following substantial questions of law were formulated: “1. Whether imposing entry fee for Dharsan at Sri Devi Bhagavathi Amman Temple violates the constitutional provisions of Articles 14 and 256? 2. Whether the respondents are competent to impose an entrance fee in the nature of a tax without authority of law, particularly in view of the provisions of Act 27/1957 (Transferred Territory Act)? 3. Whether the alleged entry fee can be imposed contrary to the customs and usage of temples in Travancore/Cochin?” 7. The suit relates to the proposed collection of special fee of Rs.10/- for special Dharsan from the devotes of Sri Devi Bhagavathi Amman Temple. Kanyakumari. The suit is filed by the plaintiff in the representative capacity. 3. Whether the alleged entry fee can be imposed contrary to the customs and usage of temples in Travancore/Cochin?” 7. The suit relates to the proposed collection of special fee of Rs.10/- for special Dharsan from the devotes of Sri Devi Bhagavathi Amman Temple. Kanyakumari. The suit is filed by the plaintiff in the representative capacity. According to the plaintiffs, imposing such entrance fee for Dharsan of deity in the district of Kanyakumari is against the custom and usage prevailing in the erstwhile Travancore-Cochin State and the same cannot be altered after the transfer of territory to the State of Tamil Nadu and also it is unconstitutional and violative of provisions of under Article 14 and 256 of Constitution of India. Levy of such fee is also challenged as it is in the nature of imposing tax without an authority of law particularly in view of the provisions of Act 27 of 1957 (Transferred Territory Act). 8. The District of Kanyakumari was under the administration of Cochin Monarchs. After independence, it was under Travancore-Cochin State and after the merger, the present Kanyakumari District was formed on 01.01.1957 under Section 4 of the States Re-organization Act 1956. According to the plaintiff, worshiping the deity of the temple in the District was free to the citizens and the same was the custom and usage prevailing in the erstwhile Travancore-Cochin State and the same was also not altered when the new district was formed in the year 1957. 9. Mr.T.S.R.Venkatraman, the learned counsel appearing for the appellants would submit that under Section 119 of the States Re-organisation Act 1956, the law prevailing in the erstwhile State from which, some territory is newly added o another state, shall continue to be in force, not withstanding the change in the territories and formation of or re-organisation of new states. It is submitted that customs and long usage’s also have the force of law and such customs and usage’s prevailing in Travancore-Cochin area cannot be altered merely because of the transfer of territory as per the laws in the State of Tamil Nadu. 10. It is submitted that customs and long usage’s also have the force of law and such customs and usage’s prevailing in Travancore-Cochin area cannot be altered merely because of the transfer of territory as per the laws in the State of Tamil Nadu. 10. The learned counsel also submitted that the petitioners have the right to be protected under Article 372 of the Constitution of India which protects existing laws which had been in force in the territory of India immediately before the commencement of the Constitution, unless altered or repealed or amended by a competent legislature. The learned counsel also pointed out that under Article 256, the States and the unions are obliged to ensure compliance of any existing laws which apply in that state. The learned counsel also referred to Section 7 of the Tamil Nadu Transferred Territory-Extension of Laws Act (22 of 1957) which repeals the corresponding law to an enactment specified in the schedule. The learned counsel pointed out that Hindu religious and Charitable Endowment Act has not been mentioned in the schedule of the Tamil Nadu Transferred Territory-Extension of Laws Act (22 of 1957). The learned counsel also relied on Section 97 A of the Hindu Religious and Charitable Endowment Act 1957, which enables the Board of Trustee constituted under Section 47 of the Act to maintain the incorporated Devaswam, out of the devaswam’s fund to keep in a state of good repair the temples, building and other appurtenances thereto, administer the said Devaswam in accordance with the recognized usages, make contributions to other Devaswam in the transferred territory and meet the expenditure for the customary religious ceremonies and may provide for the educational uplift, social and cultural advancement and economic betterment of the Hindu community. 11. The learned counsel also referred to section 97B of the HR&CE Act which describes the Devaswam fund and 97C which refers to Devaswam surplus funds and its administration. The learned counsel also referred to Section 21 of the Act which refers the transfer of territory which are Kanyakumari District and Chenkottai Taluk of Tirunelveli District and Section 47 of the Act which gives powers to the Board of Trustees to administer the incorporated and unincorporated Devaswam in the transferred of territory. 12. The learned counsel also referred to Section 21 of the Act which refers the transfer of territory which are Kanyakumari District and Chenkottai Taluk of Tirunelveli District and Section 47 of the Act which gives powers to the Board of Trustees to administer the incorporated and unincorporated Devaswam in the transferred of territory. 12. The learned counsel for the appellant would submit that Sri Devi Bhagavathi Amman Temple of Kanyakumari was administrated by the Cochin Monarchs and as per the usage and custom, worship of the deity was only free and the same custom and usage was prevailing in the erstwhile Travancore-Cochin State and the same custom and usage shall continue to be in force even after the re-organisation of the States and the temple authority cannot impose special fee which amounts to imposing of tax and which is ultra vires to Article 265 of the Constitution of India whereby no tax shall be levied or collected except by authority of law. 13. The learned counsel relied upon the judgment in Siva Thanu Chettiar and others vs. The Executive Officer/Deputy Commissioner, Incorporated and unincorporated Devaswam, Suchindeeram, Kanyakumari District, reported in 2005(1) CTC 735 = 2005-2-L.W.369, wherein, an order of injunction was passed by the single Judge in C.M.P.(MD),No.2329 of 2004 in this second appeal, in favour of the appellants pending the present second appeal. 14. Mr.G.R.Swaminathan, the learned counsel appearing for the respondent would submit that the worshiping of deity, not only in the suit temple but also in all the temples in Tamil Nadu is only “free”. He also pointed out that ‘fee’ system has been introduced only to facilitate old and ailing people, pregnant women, and those who cannot stand in the queue for a long time. He further pointed out that it is not as if the entrance fee is collected from all the people who prefer the general queue, where the Dharsan is free. Therefore, the learned counsel pointed out that the suit is misconceived and even now the custom and usage of ‘free Dharsan’ is practiced in the suit temple. He further pointed out that the enactment of the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959, extends to the whole State of Tamilnadu and it applies to all Hindu Public Religious Institutions and Endowments, including the incorporated Devaswam and unincorporated Devaswam. He further pointed out that the enactment of the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959, extends to the whole State of Tamilnadu and it applies to all Hindu Public Religious Institutions and Endowments, including the incorporated Devaswam and unincorporated Devaswam. The learned counsel also relied upon Section 63 of the Act, wherein the Joint Commissioner or Deputy Commissioner alone is empowered to decide certain disputes, among the other things, whether any person is entitled, by custom or otherwise, to any honour, emolument or perquisite in any religious institution; and what is he established usage of a religious institution in regard to any other matter. 15. I have carefully considered the rival contentions. The Kanyakumari District was formed and merged with Tamilnadu on 01.01.1957 under the provision of States Re-organization Act, 1956. Therefore, there is no doubt that the laws prevailing in the erstwhile territory from which the territory newly added to another state shall continue to be in force not withstanding the changes in the territory and formation or Reorganization of new states, until repealed. Under Article 256 of the Constitution of India, the states are obliged to ensure compliance of any existing laws which apply in that state. Under Article 372 of the Constitution of India, all the laws on force in the territory of India immediately before the commencement of the Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or by other competent authority. The Tamil Nadu Transferred Territory-Extension of Laws Act(22/1957) was enacted to extend certain laws to the transferred territory in the State of Tamil Nadu and the Act came into force on 18.12.1957. Section 6 of the Act repeals corresponding law to an enactment as specified in the schedule. Tamil Nadu Hindu Religious & Charitable Endowments Act 1959 was not mentioned in the schedule of the Act 22 of 1957. However, the suit property is a incorporated Devaswam, administered by the Department. The HR&CE Act came into force on 02.12.1959 and it extends to the whole of State of Tamilnadu and applies to all the Hindu Religious & Charitable Endowments including incorporated Devaswam and unincorporated Devaswam. The suit temple is an incorporated Devaswam and now coming within the transferred territory of Kanyakumari District. Under Section 12(1) of State Reorganization Act 1956, a Devaswam fund shall be established to maintain the incorporated Devaswam. The suit temple is an incorporated Devaswam and now coming within the transferred territory of Kanyakumari District. Under Section 12(1) of State Reorganization Act 1956, a Devaswam fund shall be established to maintain the incorporated Devaswam. Under Article 290A of the Constitution of India, a sum of Rs.46,50,000/- shall be charged and paid out of the Consolidated fund of the State of Kerala every year to the Travancore Devaswam fund; a sum of Rs.13,50,000/- shall be charged and paid out of the consolidated fund of the State of Tamil Nadu every year to the Devaswam fund established in the state for the maintenance of Hindu Temples and shrines in the territories transferred to that state on the first day of November 1956 from the State of Travancore-Cochin. Section 97B of the HR&CE Act deals with such Devaswam fund and as stated earlier, Section 97A deals with maintenance of incorporated Devaswam out of Devaswam fund. 16. The learned counsel for the appellants contended that the enactment of Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 was not extended to the newly formed district of kanyakumary. This argument was countenanced by the learned counsel for the respondent stating that the preamble of the Act would show that it extends to the whole of the State including the transferred territory. There is some force in the argument of the learned counsel for the respondents in this aspect. Under Section 119 of State Reorganization Act the laws prevailing in the erstwhile territory from which the territories newly added to another state shall continue to be in force, but the enactment of the Tamil Nadu Hindu Religious and Charitable Endowments At, 1959 has been extended to the whole of the State of Tamilnadu and it applies to all the incorporated Devaswam which includes the suit temple in the transferred territory of Kanyakumari District. The HR&CE Act also deals with Devaswam fund and utilization of such fund for the maintenance of such incorporated Devaswam as mentioned in the Article 290A of the Constitution of India. Therefore, there is no force in the contention of the learned counsel for the appellant that the laws prevailing in the erstwhile territory shall continue to be in force in the transferred territory. 17. Therefore, there is no force in the contention of the learned counsel for the appellant that the laws prevailing in the erstwhile territory shall continue to be in force in the transferred territory. 17. The next contention of the learned counsel for the appellants is that it is the custom and usage prevailing under the administration of Cochin Monarchs that the Dharsan is always ‘free’ and the same custom continued to prevail in the State of Travancore-Cochin. The learned counsel pointed out that the custom and usage can not be altered. The learned counsel for the respondents countered this argument by stating that even now the “Dharsan” is free and proposed fee is only for “special Dharsan”. 18. In my considered view, worshiping the deity of the temple, not only in the suit district but any where in the state, is free to the devotees and the same was the custom and usage prevailing in the erstwhile Travancore-Cochin State and also in the state of Tamil Nadu. The allegation of the plaintiffs seem to be that there can not be a “fee Dharshan” along with “free Dharsan”. 19. The learned counsel for the appellant submitted that it is violative of Article 14 of the Constitution of India. It is also contended that it is in the nature of imposing tax without any authority of law and thus violative of Article 265 of the Constitution of India. 20. In my considered opinion, the decision to collect fee for special Dharsan will not amount to imposing of tax and therefore, Article 265 will not be attracted. 21. The argument of the learned counsel for the respondents is that the decision of the administration to collect a fee for special Dharsan is only to facilitate certain group of persons to have the Dharsan at their convenience. According to him the temple authority has not denied free Dharsan to the public and those who cannot stand in the long queue for a free Dharsan, particularly, the women, the aged, the children and ailing or handicapped persons, if they pay a fee, can go for a special Dharsan skipping the long queue. Whether it will amount to discrimination and violative of the principle laid down under Article 14 of the Constitution of India? Does it discriminate any person in worshiping the deity? 22. Whether it will amount to discrimination and violative of the principle laid down under Article 14 of the Constitution of India? Does it discriminate any person in worshiping the deity? 22. It is established that the custom and usage which was prevailing in the erstwhile state was free Dharsan and they have not imposed any fee to be collected from the devotees. 23. According to the temple authority, the special entrance fee is collected only from those who would prefer to pay such a fee in their free will. In Ex.A.1 it is stated that, 24. If the intention of the administration is to provide facilities or convenience to the devotees, it is for the temple authority to spend from the Devaswam fund and they cannot collect money from the devotees for providing such facilities or other conveniences. If the intention of the temple authority is to enhance the revenue, well, whether they are empowered under the Act to collect such revenue is to be seen. It is admitted that except in the suit temple, in all other temples in the Kanyakumari District and as well as in the State of Tamil Nadu the fee for special Dharsan is being collected. 25. Section 57 of the H.R&C.E. Act reads as follows: “Notwithstanding anything contained in any scheme settled or deemed to have been settled under this Act or any decree or usage to the contrary, the trustee of the religious institution shall have power, subject to the conditions as the Commissioner may, by general or special order, direct, to fix fees for the performance of any service, ritual or ceremony in such religious institution and to determine what portion, if an, of such fee shall be paid to the archagas or other office-holders or servants of such religious institutions” 26. The relevant portion of the written statement of the third defendant reads as follows: “For entering the temple for worshipers are to go through in queue. For mere worship in the temple no charges are collected. But if any worshiper want to offer special poojas like Abishegam, Archana etc., separate chargers are to be paid. During crowded seasons the worshipers have to stand for period in queue for dharshan. During the period old people, pregnant ladies, ailing people and those in a hurry to go after worship finds it difficult to stand in the queue for longer period. During crowded seasons the worshipers have to stand for period in queue for dharshan. During the period old people, pregnant ladies, ailing people and those in a hurry to go after worship finds it difficult to stand in the queue for longer period. So Devaswam is having a proposal that if such people are prepared to give special entrance fee the Devaswam could make arrangement for providing them a separate entrance for those persons” 27. Under Section 57 of the HR&CE Act, the fees can be fixed for the performance of any services, ritual or ceremony, Abishegam or Archana and nothing else. It is imponderable that seeking a citizen to pay for his darshan in a temple can fall within the term ‘service’. A citizen, if one were to accept, the contention of the Dept., would have to pay for a darshan in the temple. The concept of payment necessarily postulates that citizens, or more particularly those who wish to skip the queue to have the Dharsan, will be classified on the basis of their economic affordability. Can the citizens or those who are under reference here be classified on the basis of affordability alone for granting them a privilege of proximate or speedier darshan of his maker? What is the logic in classifying the devotees as have’s and havenot’s. 28. The Constitutional scheme of things, in my opinion does not permit any citizens to believe that economic affordability could be a tool to divide the citizenry for a darshan in a public temple. I emphasis that the temple is a public temple and in the first place, the Devaswam is not doing any service. At the best it maintains and administers the temple built for public benefit, for which they receive or raise revenue by other means. The economic consideration, some of the citizen are given the privilege of ‘proximate or speedy Dharsan’ and those can’t afford shall have ‘distant dharsan’, itself is an affront to the equality before law as enshrined under Article 14 of the Constitution of India. 29. Even assuming that the scheme is to assist the aged, ill and handicapped and women and children, to jump the queue and have dharsan at the same distance as that of the regular queue, still the under privileged is charged a fee for dharsan which again amounts to discrimination. 29. Even assuming that the scheme is to assist the aged, ill and handicapped and women and children, to jump the queue and have dharsan at the same distance as that of the regular queue, still the under privileged is charged a fee for dharsan which again amounts to discrimination. The administration can always make some provision for those under privileged without charging the fee. If the department is so concerned about the women, weak and elderly, they can very well provide facilities without any collection of fees or charge. 30. Under section 92 of H.R.&C.E. Act, a levy is collected from the Religious institution by the Commissioner. Section 97 of the Act, provides for he creation of “Hindu Religious and Charitable Endowment Common Good Fund”. The particulars of collections under section 92, expenditure and transfer of funds under section 97 of the Act is tabulated below: S.No. Particulars Year 2007-08 Year 2008-09 Rs. Rs. I Total amount collected by levy inder Section 92 of the Act 43,82,15,157/-46,75,86,140/- II Particulars of Expenses 1 Executive Officers and allowances 5,83,00,150/-6,97,80,600/-2 Grants to Karunai Illangal run by the temples 50,00,000/-37,00,000/-3 Grants to Village Pusries Welfaare Fund 10,00,000/-4 Grands for preservation of heritage temples by 11th Finance Comissioner 5,00,00,000/- Page 8 of 11 4,87,00,000/-5 Grant to Kanyakumari Devasthanam Fund 1,00,00,000/-1,00,00,000/-6 Grant to religious institutions in the merged areas (Pudukottai Devasthana Temples) 15,06,000/-15,06,000/-7 Grant forrepairs to temples 3,00,00,000/-3,00,00,000/-8 Pension of Vedparayanars 1,70,141/-1,63,638/-9 Pension to Archagas 42,34,319/-41,73,434/-10 Pension to Isaikalaignars 6,76,992/- 8,44,405/- 11 Pension to Temple Poojaris 1,91,80,060/- 1,98,12,468/- This table is extracted from the topic LEVY AND CONTRIBUTION UNDER SECTION 92 IS STILL LEGAL AND VALID? In (2009(8) MLJ Volume 247 Part 1, Page 9) 31. Every year a sum of Rs.1,00,00,000/- is transferred to the Kanyakumari Devasthanam Fund. Under Article 290A of the Constitution of India, sum of Rs.46,50,000/- shall be charged a paid out of the Consolidated fund of the State of Kerala every year to the Travancore Devaswam Fund; a sum of Rs.13,50,000/- shall be charged and paid out of the consolidated fund of the State of Tamil Nadu every year to the Devaswam fund established in the state for the maintenance of Hindu Temples and shrines in the territories transferred to that state on the fir4st day of November 1956 from the State of Travancore Cochin. Section 97B of the HR&CE Act deals with such Devaswam fund and as stated earlier, Section 97A deals with maintenance of incorporated Devaswam out of Devaswam fund. Therefore, the argument that the trustees have decided to collect fee for maintenance of the temple is also untenable. 32. There is no rational in classifying the citizen on economic grounds or collecting any revenue under some pretext. Granting of privilege on economic consideration with whatever object cannot be a source of income nor for any object however noble it may be. In the guise of providing such facilities the have’s can’t have advantage over the havenot’s especially, when many of the Custom and Usage of the erstwhile Travancore-Kochin still prevails in the temples of Kanyakumari District. 33. The Custom, that everything was provided by the Rulers and Kings in a temple and the devotees were not charged for any services might have become an ancient history. But, worship of the deity shall continue to be free in a public temple. 34. Therefore, imposing ‘dharsan fee’ for the purpose mentioned in Ex.A1 in the suit temple is violative of the constitutional provision of the Art. 14 and contrary to the customs and usage of temples in Travancore-Cochin as many of such unique customs and usages are still prevailing in the temples at Kanyakumari District. 35. It is well settled that High Court shall not interfere with the concurrent finding of the courts below, unless it is satisfied that a substantial question of law is involved under section 100 of Civil Procedure Code. In the present suit the courts below have dismissed the suit as if the Department and the trustees are entitled to collect any fee and the plaintiffs have no say in this. The issue, whether ‘free dharsan’ or ‘fee dharshan’ is of public importance involving the suit temple and for the reasons stated above the respondents can not collect dharshan fee for the purpose mentioned in Ex.P1. The substantial questions of law are decided in favour of the appellants. 36. However, it is made clear that this judgment is only in respect of the suit temple and the validity of Ex.A1 As much as it arises out of a civil suit, this judgment is only a judgment in-personam. The substantial questions of law are decided in favour of the appellants. 36. However, it is made clear that this judgment is only in respect of the suit temple and the validity of Ex.A1 As much as it arises out of a civil suit, this judgment is only a judgment in-personam. At this juncture this court wish to refer the observation of the Hon’ble Supreme Court made in 2003 7 Supreme Court Cases 197=2004-2-L.W.60 (Divisional Controller KSRTC Vs Mahadeva Shetty) “The decision ordinarily is a decision on the case before the court, while, principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. Therefore while applying the decision to a later case the court dealing with it carefully try to ascertain the principle laid down by the previous decision. The decision often takes its colour from the question involved in the case in which it is rendered. The scope of authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation.” 37. In the result, the second appeal is allowed and the judgment and decree of the courts below are set aside. No costs. Consecutively connected C.M.P. and Review Application are closed.