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2015 DIGILAW 421 (PAT)

Mani Lal Barik v. State of Bihar

2015-03-11

L.NARASIMHA REDDY, VIKASH JAIN

body2015
JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) C.W.J.C. No. 16187 of 2012 The petitioners are residents of Gaya. They approached this Court by way of this Public Interest Litigation feeling aggrieved by the various acts and omissions on the part of the Respondents, in the context of arrangements being made at Gaya during Pitru Paksha, every year. They contend that Gaya is the only place which attracts the pilgrims from India and abroad during the Pitru Paksha and that instead of making extensive arrangements for the comfort and convenience of the pilgrims the Respondents, and in particular the authorities of the State are fleecing the pilgrims by levying service fee. They state that even while doling out huge amount of money for the benefit and comfort of pilgrims of other communities the Respondents are exhibiting a totally hostile attitude towards the pilgrims who visit at Gaya on the occasion of Pitru Paksha. They cited the instances of such discrimination, including the one of levy of service fee. Apart from the grounds of propriety and discrimination the petitioners also raised the plea of lack of jurisdiction on the part of the respondents to levy the fee. The Respondents filed a counter affidavit admitting that service fee is being levied during the festival seasons. It is stated that the amount is being remitted to Lodging House Fund and is being spent for the benefit of pilgrims. The matter was heard at some length on 10.02.2015 and this Court required the learned counsel for the Respondents to furnish information on the aspects such as:- (a) Whether the service fee is being levied on the vehicles which carry the pilgrims to the religious places such as Bodh Gaya and Urs, festivals of the Muslim community and festivals of other communities ? (b) What is the amount of service fee collected ever since the writ petition has been filed ? (c) Nature of the facilities provided to the pilgrims using the said amount. A supplementary counter affidavit is filed in relation thereto. It is stated that the service fee is not collected from the pilgrims of any other community. A sum of Rs. 87,11,465/- have been collected for three years for 2012, 2013 and 2014. As regards the facilities provided to the pilgrims the counter affidavit is not specific. A supplementary counter affidavit is filed in relation thereto. It is stated that the service fee is not collected from the pilgrims of any other community. A sum of Rs. 87,11,465/- have been collected for three years for 2012, 2013 and 2014. As regards the facilities provided to the pilgrims the counter affidavit is not specific. The Respondents further contend that the service fee is being levied under Section 13 of the Bihar and Orissa Places of Pilgrimage Act, 1920 ( for short the Act). Heard Sri Sanjay Kumar, learned counsel for the petitioners and Sri Ranjeet Kumar, learned Assistant Counsel to Principal Additional Advocate General for the Respondents. It is a matter of common knowledge that spiritual events are conducted throughout the length and breath of India on various occasions. Except that the methods differ the people pay their respect and homage on the festive occasion and on most of the occasions they gather at places of pilgrimage and other sacred places. Naturally the facilities for the convenience of pilgrims of such gathering are to be geared up. It is the duty, not only of the State Government but also of the local authorities to provide facilities at such places. Apart from that committees are constituted for effective implementation of measures for ensuring proper conducting of the festivities. Instances are galore where the Governments allocate funds for this purpose. It is not out of place to mention that huge amounts are paid to pilgrims who intend to visit Mecca year after year. The material which is available in this writ petition discloses the one sided discriminatory approach, on the part of the Government of Bihar, towards pilgrims of a particular community, particularly, pilgrims who come from various parts of the world, and assembled at Gaya on the occasion of Pitru Paksha. On the one hand the Government did not allocate any funds whatever or to create any facilities for the convenience of pilgrims who visit Gaya, and on the other hand it permitted collection of lakhs of rupees from the vehicles that carry the pilgrims. It is rather astonishing that the Government is collecting entry fee only from the pilgrims of a particular community. Unfortunately this is typical secularism, practiced by various State agencies. It is rather astonishing that the Government is collecting entry fee only from the pilgrims of a particular community. Unfortunately this is typical secularism, practiced by various State agencies. Be that as it may, the Respondents are not entitled to levy any particular amount for the convenience that may be availed by individuals, one can conclude the same as discrimination referable to Article 14 of the Constitution of India. It is fairly well settled that any tax or fee can be levied only there is legislative sanction for it. The only difference is that the State need not offer any strict basis or jurisdiction for levy of tax, it can levy fee only by stating the quid pro quo, for it. The only basis for the Respondents to levy the service fee from the Hindu pilgrims who visit Gaya is under Section 20 of the said Act. It reads as under:- “20. The Lodging-house Fund- (1) In every area to which this Act applies, there shall be constituted a fund, to be called the “Lodging house Fund”, and there shall be placed to the credit thereof in the District Treasury or in a Sub- Treasury, [or in any bank or branch bank used as a Government treasury in or near the area],- (a) all sums levied and recovered within such area as fees [**] or otherwise under this Act [not being fines or penalties]; (b) all sum which may be allotted to the Fund from provincial revenues by the State Government, or directed by the State Government to be credited to the Fund; and (c) the net proceeds of the terminal tax, if any, imposed under section 13: [Provided that a committee appointed under sub-section (2) may, with the previous sanction of the State Government, invest any moneys not required for immediate use either in Government securities or any other form of security of which the State Government may approve]. (2) The State Government may appoint any person or a committee to administor, in accordance with the provisions of this Act, the Lodging-house Fund constituted for any area: Provided that in any area where the Bengal Municipal Act, 1884 is in force, the fund shall be administered by a committee, at least one-third of whose number shall be elected by the Commissioners of the municipality of that area and the remainder shall be elected or nominated in such manner as the State Government may prescribe.” We have gone through each and every provisions of the Act in our endeavour to understand the scope and ambit thereof. Any person who reads the Act would, but gain an impression that it was enacted by the British Colonial Government with an objective to discourage and suppress the religious activities in India. Every provision is aimed at that. The Act does not even define what a “Lodging-house” is and what it comprises of. Still it provides for levy of Lodging-house Fund. It does not place any obligation on the agency, authorized to levy the fee, to provide any amenities. Even private individuals are prohibited from accommodating guests who come for pilgrimage. It is rather unfortunate that even decades after Independence, the Colonial law is being implemented by the State of Bihar, that too against one particular community. There cannot be a better instance of either of failure to legislate on the subject or to come out of a Colonial minds set. We do not at all approve the acts of the Respondents levying fee under a Colonial Law which does not provide for creation of any facilities, but is only administered on pilgrims of a particular community. The particulars furnished by the Respondents are indeed alarming. Though the Government has collected an amount more than Rs. 87.00 lakhs, there was not a single facility is made available. The only measure taken by them, is the employment of few persons for sanitation works. It is the obligation on the part of the Government or the local authority to provide sanitation. The complaint of the petitioners is that hardly any facilities are provided during the festival seasons, remains un-rebutted. Another curious aspect of the matter is that Respondents used levy Terminal Tax under Section 13 of the Act from the passengers who used to arrive Gaya, by train. The complaint of the petitioners is that hardly any facilities are provided during the festival seasons, remains un-rebutted. Another curious aspect of the matter is that Respondents used levy Terminal Tax under Section 13 of the Act from the passengers who used to arrive Gaya, by train. It is stated that the Railways were collecting Terminal Tax upto sometime; and the same was remitted to the “Lodging-house Fund”, but it has been stopped. Even Britishers would have hesitated, if not felt ashamed, to levy such tax, at this length of time and that too by singling out a particular community. We deprecate the acts and omissions of the Respondents in levying Tax. We, therefore, allow the writ petition and direct that: (i) The Respondents shall not levy any tax or fee from the pilgrims who visit Gaya during Pitru Paksha or any other season except the parking fee for the vehicles, at a reasonable amount. (ii) The State of Bihar shall not enforce the provisions of Bihar & Orissa Places of Pilglrimage Act, 1920 and it shall be open to it to enact law on the subject of creation of facilities for pilgrims or for the welfare measure to be taken during festival occasion of various communities. (iii) The State Government, through the Bihar State Board of Religious Trust shall appoint a committee under Section 22 of the Hindu Religious Act, 1950 for undertaking various activities for and on behalf of the Board at Gaya within two months from today. (iv) The members of the committee to be constituted shall comprise of religious persons and service minded traders and to the extent possible, inclusion of politicians, shall be avoided. (v) The committee shall examine and prepare a plan for provision of facilities for free flow of the pilgrims who visit Vishnupath Temple at Gaya, and arrange for the Rituals either during Pitru Paksha or other times, in a systematic way. (vi) The amount collected towards service fee during the years 2012, 2013, and 2014 shall be made over to the committee for being spent, to create facilities; and the Board shall maintain a true and proper account of the expenditure and get it audited from time to time. The Arrangement directed by us shall be subject to enactment of any law by the State of Bihar on the subject and implementation thereof. The Arrangement directed by us shall be subject to enactment of any law by the State of Bihar on the subject and implementation thereof. The Interlocutory Application, if any, shall stand disposed of. There shall be no order as to costs. M.J.C. No. 6670 of 2012 This contempt application is filed for initiating contempt proceedings against opposite party no. 3 for violation of order dated 21.09.2012 passed in C.W.J.C. No. 16187 of 2012. Today itself, we allowed the writ petition with various directions. In the light of that, we do not think it necessary to pass any separate order in this contempt application. The contempt application stands disposed of.