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TMI Blog1952 (9) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... with which the Act was passed and its main provisions. (2) The Act was passed to regulate and to make better provision for the administration of public religious and charitable trusts in the State of Bombay. Chapter II of the Act sets up the establishment which consists of a Charity Commissioner and Deputy and Assistant Charity Commissioners. Chapter III deals with what are charitable purposes and it provides that public trusts will not be void on ground of uncertainty. Chapter V deals with registration of public trusts. Chapter V deals with accounts and audit. Chapter VI deals with control and the control is to be exercised by a power of Inspection and supervision conferred upon the officers and also by reports to be made by the auditor and the explanation to be obtained from the trustees on the report of the auditor. Chapter VII deals with the functions and powers of the Charity Commissioner. The Charity Commissioner is constituted a corporation sole, he is given the power to act as a trustee of public trusts, the consent of the Charity Commissioner is required for the institution of a suit in relation to a public charity corresponding to Section 92, Civil P. C., and there is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secular State. It is not every aspect of religion that has been safeguarded, nor has the Constitution provided that every religious activity cannot be interfered with. "Religion" as used in Articles 25 and 26 must be construed in its strict and etymological sense. Religion is that which binds a man with his Creator, but Mr. Somayya on behalf of his client says that as far as Jains are concerned they do not believe in a Creator and that distinction would not apply to the Jains. But even where you have a religion which does not believe in a Creator, every religion must believe in a conscience and it must believe in ethical and moral precepts. Therefore, whatever binds a man to his own conscience and whatever moral and ethical principles regulate the lives of men, that alone can constitute religion as understood in the Constitution. A religion may have many secular activities, it may have secular aspects, but these secular activities and aspects do not constitute religion as understood by the Constitution. There are religions which bring under their own cloak every human activity. There is nothing which a man can do, whether in the way of clothes or food or drink, which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a whole or of that particular section in Vejaipur which is interested in the management of the Derasar situated then, the question is what is the proper interpretation that we must place on Article 26. It will be noticed that Sub-clause (c) of Article 26 gives the right to a religious denomination or any section thereof to own and acquire move-able and Immovable property, and Sub-clause (d) provides that it has the right to administer such property in accordance with law. Therefore, the right to administer property given to a religious denomination or any section there-of is not an unqualified right. A part from all the rights in Article 26 being subject to public order, morality and health, as far as this particular right is concerned that right is qualified by the expression "in accordance with law". Therefore, this right clearly contemplates the right of the State to make laws with regard to the administration of property owned and acquired by religious denominations or any section thereof. All that is protected is that so long as a religious denomination or any section thereof administers its property in accordance with such law as the State Legislature has passed, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine or scrutinise each section separately. The first attack made by Mr. Somayya is against the sections which have extended the 'cypres' doctrine. The 'cypres' doctrine is by no 'means a new doctrine. It was well known in England and the Courts of Equity and our Courts also administering equity have applied to trusts coining up before them this particular doctrine. But the objection of Mr. Somayya is to the extension of that doctrine and according to him that extension results in the Jain religion being interfered with. Section 55 provides that if at any time the Charity Commissioner is of opinion that the original object for which the public trust was created has failed, or the income or any surplus balance of any public trust has not been utilised or is not likely to be utilised, or it is not in public interest, expedient, practicable, desirable, necessary or proper to carry out wholly or partially the original intention of the author of the public trust or the object for which the public trust was created, and that the property or the income of the public trust or any portion thereof should be applied to any other charitable or religious object, then the pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f of the public trust which has not been registered under this Act shall be heard or decided in any Court. This is a further compulsion upon the trustees of public charitable trusts to get themselves registered. Section 12 makes it obligatory upon the trustees of null-lie trusts which have been registered to maintain regular accounts. Section 34 casts the duty upon every auditor auditing the accounts of a public trust to prepare a balance sheet and income and expenditure account and to forward a copy of the same to the officers under the Act, & it is also the duty of the auditor to specify in this report all cases of irregular, illegal or improper expenditure and other contraventions against the Act or against the administration of the trust. Section 35 provides for the investment of public trust money. Section 36 deals with alienation of Immovable property and it permits alienation only with the previous sanction of the Charity Commissioner. Section 37 provides that the Charity Commissioner and the other officers shall have power to enter on and inspect or cause to be entered on and inspected any property belonging to a public trust, and it also deals with other powers of these o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se belonging to a particular religion. But it is one thing to say that you are dealing with the administration of the property, and it is entirely a different thing to say that you are interfering with the objects which the property helps to carry out. There is no attempt at interfering with the religious purposes or religious objects. The whole attempt and the whole object is to see that the properties settled on public and charitable trusts are properly managed and are properly administered, that the trustees keep proper accounts, that the trustees render those accounts, answer questions put to them arising out of those accounts, and every single provision contained in the Act is incorporated from that point of view. Therefore, to the extent that the Act if challenged on the ground that it contravenes Articles 25 and 26 of the Constitution, the petition must fail. (8) I now come to the other head of the challenge which is much stronger, and that is that the Legislature was not competent to enact certain provisions of the Act which deal with the levying of a fee upon various public trusts, and the sections dealing with this are Section 57 to start with. That section provides for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... competent to legislate with regard to it, as entry 47 falls in the Concurrent List and power is given both to the Union Legislature and the State Legislature to legislate with regard to items falling in that List. If the contribution, on the other hand, is a tax, then this particular tax is not expressly provided under any of the entries in the three lists, but both by reason of Article 248(1) and by reason of entry 97 in List I the power to legislate with regard to this tax would be in the Union Legislature and not in the State Legislature. Before we decide whether this particular contribution is a tax or a fee, we must try and understand clearly what is the difference between a tax and a fee. In some Constitutions no distinction is drawn between a tax and a fee. Tax is used in its wider concept and includes a fee. But as far as our Constitution is concerned a clear distinction is drawn between a tax and a fee. The very fact that the power is given to the State Legislature to impose a fee and the power to impose a tax is given to the Union Legislature itself shows that the Constitution has recognised a distinction between these two different impositions. Mr. Somayya says that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the public revenues and if that levy is utilised by Government in connection with the services that the Government is to render to that section in respect of the levy paid by it, then it is not a tax because it does not form part of the public revenues nor is it used for the whole public or for Governmental purposes. The very essence of a tax is that it could be used by Government for the whole public for any purpose connected with the administration of the State. But when you have a levy raised for a specific purpose, when you have that levy earmarked for a specific purpose and when that levy is taken for services rendered, then that levy is not a tax but a fee. It is argued that it is only when services are required by a section of the public that charging that section of the public for services to be given to it by Government would constitute a fee, and it is pointed out that in this case there is no question of the trustees wanting these services from Government. It is said that these services are thrust upon them, whether they like it or not. But, as I shall presently point out, it is no longer now necessary that the services to be rendered by the State should be at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6A and 6B and it is pointed out that under Section 6A the salary of the officers appointed under the Act is charged upon the Consolidated Fund of the State and therefore it is really the general revenues of the State which are paying for the services to be rendered by these officers. But Section 6B makes it clear that all the moneys that the Government pay to the officers and which are charged upon the Consolidated Fund are to be reimbursed by the Public Trusts Administration Fund. Therefore, in effect and in substance it is the Public Trusts Administration Fund which is paying these officers for the services tendered. Therefore, the provisions of the Act make it amply clear that the contributions made are earmarked for a particular purpose, that they do not form part of the Consolidated Fund of the State, and that the fund created is to be applied for carrying out the provisions of the Act. (11) It may be pointed out that under our Constitution there is a provision for a Consolidated Fund which consists of all the revenues raised by Government. Article 266 provides that all revenues received by the Government of a State and all loans raised by that Government by the issue of tre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were considering the provisions of the Hindu Religious Endowments Act, Madras. Under that Act too there was a provision for a levy of 5 per cent, of the income of a religious institution, and the question that the Bench had to consider, among other questions, was whether this levy constituted a tax or a fee, and the Madras High Court came to the conclusion that it was a tax and not a fee end the Madras State Legislature was not competent to enact the provision with regard to the imposition of. the tax. In considering this question the learned Judges have cited with approval the definition of Prof. Bastable of what a tax is and Prof. Bastable's definition is: "A tax is a compulsory contribution of the wealth of a person or body of persons for the services of the public powers" and Mr. Somayya emphasises the fact that it is a compulsory contribution which goes to make a levy a tax. In my opinion--and that is borne out by the other authorities to which I shall presently refer-- it is not so much the element of compulsion which is emphasised by Prof. Bast able; it is rather the fact that the contribution is for the services of the public powers, not for any specific purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 1939) and they had also to consider whether a levy imposed under that Act was a tax or a fee, and the learned Judges quote with, approval a passage from Findiley Shirras in his Science of Public Finance, and the learned author states (p. 50): "Taxes are compulsory contributions to public authorities to meet the general expenses of Government which have been incurred for the public good and without reference to special benefits. Fees are payments primarily in the public interest for special services which people must accept whether willingly or not; ......Fees are for governmental services, while prices are for services of a business character. They differ also from taxes in that they are payments for special benefits enjoyed by the payer, while taxes are for general benefits, expenses which are laid, as Adam Smith say, 'for the benefit of the whole society'. The essence of a tax is the absence of 'quid pro quo' between the tax payer and the public authority." Therefore, according to this author the test which must be applied is whether there is a 'quid pro quo' between the tax payer and a public authority, or, in other words, whether by paying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose and yet the privy Council held that it was a tax because it emphasised the compulsory nature of the levy. It must be borne in mind that the Privy Council was not considering in this decision the distinction between a fee and a tax and there was no reason why the Privy Council should consider that distinction because under the British North America Act no distinction is made between fees and taxes. The scheme of the British North America Act is somewhat similar to our own Constitution. That Act also has Lists which provide for subjects on which the Provincial Legislature can legislate-and subjects on which the Dominion Legislature can legislate. But in demarcating the subjects the British Worth America Act has not made any distinction between taxes and fees. On this point the scheme of our Constitution is different and therefore the only question that fell to be considered by the Privy Council was whether it was a tax within the meaning of the British North America Act. If it was a tax, certain legal consequences followed; if it was not, different consequences followed. Therefore, this authority cannot be relied upon for contending that the Privy Council defined what was ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticular charity, and Sir Jamshedji says that here we have a provision in the law by which the officers appointed under the Act can enter the Fire Temple of the Parsis in order to inspect it and to see whether it is being run in the interest of the public trusts. In putting forward this contention Sir Jamshedji is overlooking the proviso to that section and that proviso is that in entering upon any property belonging to the public trusts the officers making the entry shall give reasonable notice to the trustee and shall have due regard to the religious practices or usages of the trust. I am sure that the Charity Commissioner and the officers working under him know what the religious feeling of the Parsi community is, and it is inconceivable that the Charity Commissioner or any of his officers would think of entering a Fire Temple of the Parsis if the community of the Charity Commissioner or his officers happens to be other than the Parsi community. (18) Then it is pointed out that under Section 44 of the Act the Charity Commissioner may be appointed to act as a trustee of a public trust by a Court of competent jurisdiction or by the author of the trust', and Sub-section (2) pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear by R. 42 which they have enacted under their rule making power, and that rule provides that the Charity Commissioner shall not accept any trust for religious purposes which involves the exercise by him as trustee of any religious observance or ceremony or the decision of any questions as to the religious merit or character of any individual or institution. (19) Sir Jamshedji has also emphasised the wide powers given to the Court under Section 56 with regard to the application of the 'cypres' doctrine. Sir Jamshedji says that it is a part of the Parsi Zoroastrian religion that if you have a Fire Temple or a Dokhma, they must be continued and they cannot be shut up in order that the funds settled in trust for their maintenance should be applied for some more worthy object, and Sir Jamshedji says that the powers given to the Court under Section 56 are so wide that it is quite possible that the Court may take the view that rather than having Agiaries and Dokhmas it is much better for the Parsis to spend the money on education or medical relief, and Sir Jamshedji emphasises the expression used in Section 56 that if the Court thinks it is desirable not to carry out the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en if there is a possibility of administrative or executive action which may contravene the fundamental rights of a citizen, we must hold such provision unconstitutional. But as far as this Act is concerned, most of the important decisions which can be taken under it are not executive or administrative decisions but judicial decisions, and as I said before, the criticism that may apply to executive or administrative action possibly apply to the decision of a competent Court. (21) The result, therefore, is that we must I hold the impugned provisions of the Act to be valid. In my opinion no provision of the Act contravenes the fundamental rights embodied in Part III of the Constitution, nor is any provision of this Act beyond the competence of the State Legislature. The result is that the petitions fail and must be dismissed. Shah, J. (22) I agree. (23) Bombay Act 29 of 1950 was passed by the Bombay Legislature, as the preamble states, to regulate and make better provision for the administration of public religious and charitable trusts in the State of Bombay. That the Legislative Assembly of the State of Bombay had authority to pass an Act for the regulation and for making bette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty Commissioner, and which confer a right of access to religious properties upon the Charity Commissioner and his subordinate officers who may be persons professing religious beliefs other than the beliefs of the persons who are interested in the religious trusts, amount to interference with the management of the affairs of religious denominations and infringe fundamental rights vested in the citizens and others. 3. That the exercise of powers conferred upon the Charity Commissioner and his subordinate officers which include a power to direct even the ceremonial observances of religious trusts is likely to interfere with the religious beliefs of the denomination interested in the trust especially if the officer professes religious beliefs different from those of the denomination; and consequently the provision which enables the Charity Commissioner to exercise the same powers as other trustees, is void, as infringing the fundamental rights of the denomination. 4. A levy of contribution from the funds of trusts amounts to a tax not within the competence of the State Legislature, and therefore the provision which enables contributions to be levied and a fund to be created out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n "religion" or "matters of religion". Essentially religion is a matter of personal faith and belief, of personal relation of an individual with what he regards as his Maker or his Creator or the higher agency which he believes regulates the existence of sentient beings and the forces of the Universe. Again, in view of the fact that there is not one religion but there are numerous religions and different persons residing within this country and within this State profess different religious faiths which seek to identify religion with what may in substance be mere facets of religion, it would be difficult to devise a definition which, would be regarded as applicable to all religions or matters of religion. To one class of persons mere dogma or beliefs or doctrines may be predominant in the matters of religion; to others rituals or ceremonies may be a predominant facet of religion; and to another class of persons a code of conduct or a mode of life may constitute religion. It may be that even to different persons professing the same religious faith these aspects of religion may have varying significance. What may be regarded as religion by one person or one set of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions for religious and charitable purposes. It also confers a right of management of the affairs of the Institutions established for religious and charitable purposes. Again, it enables the institutions to acquire and own movable and immovable properties and confers a right to administer those properties. But it is to be noted that the right of management of religious and charitable institutions which is conferred is not an unfettered right of management generally, but is only a right of management in matters of religion. The right of management again is of the denomination or section thereof and is limited to matters of religion, or, in other words, to matters of religious faith and to matters of religious belief. In matters of management of the property of any institution even if it be a religious institution, the right of management or administration is by clause (d) of Article 26 subject to the law of the land. There is no right conferred upon the religious denominations to administer their properties otherwise than in accordance with law. Therefore, in the administration of property belonging to any religious denomination any attempt to exercise the right of administration o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that provision, and Section 31 which imposes a further disability preventing the Courts from enforcing the right of public trusts which have not been registered and which even prevents a claim by way of a set-off or other proceedings to enforce the right of such public trusts being entertained, are inconsistent with the provisions of Articles 25 and 26 of the Constitution. But a provision which makes it obligatory to religious and charitable trusts and imposes penalties for failure to register cannot 'ex facie' be regarded as invalid. Undoubtedly the statute requires a fee to be paid for the registration of a trust. Merely because as a result of the provision making registration obligatory, a part of the funds of a trust, even if it is a religious trust, is likely to be used for purposes strictly other than the purposes of the trust, the provision cannot be regarded as infringing any fundamental right. A provision which enables a fee to be levied for providing a more effective control to be maintained on the management of the affairs of trust would in my view be regarded as a provision ministering to purposes of the trust, and therefore the fee paid must be regarded as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gious tenets or beliefs of the persons professing the Jain religion. It was strenuously contended before us that once property becomes 'Dev Dravya' human ownership therein is destroyed by reason of its dedication to religious uses and it can never be applied -- consistently with the religious beliefs of the Jains -- to any secular purpose, and payment of registration charges and payment of contribution and utilization of the property even under the orders of the Court under Section 56 would be inconsistent with the very incidents of consecrated property and therefore would violate the tenets of the religion which the petitioner professes and would infringe the right of management in matters of religion of the Jain community to which he belongs. Even assuming that the hypothesis on which Mr. Somayya's argument is based is correct (on which no opinion is expressed), there is, in my view, no substance in that contention. If the freedom of religion and the freedom in matters of religion conferred by Articles 25 and 26 are confined merely to professing, practice and propagation of religion, and to the right to manage affairs religious such as worship ritual and ceremonial e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; and charitable institutions, charitable and religious endowments and religious institutions to extend the scope of application of funds 'cypres'. If the legislation relating to administration of funds of religious institutions cannot be regarded as inconsistent with the fundamental right to manage the affairs of a denomination in matters of religion, it is difficult to understand how a provision for enabling Courts to direct administration of funds of an institution of a religious denomination in the manner provided can be regarded as infringing any fundamental right of a member of that denomination. The provision imposing liability for payment of administrative expenses on the trusts in the management of the Charity Commissioner, and the application of the funds in satisfaction of that liability cannot for the same reasons be regarded as infringing any fundamental rights. Any disability imposed upon unregistered trusts and the penalty for failure to register cannot conceivably be regarded as infringing any fundamental right, and none was mentioned at the bar in that connection. (28) It is difficult to appreciate how a provision which requires a suit for reliefs of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a public trust under Section 33 to prepare a balance sheet and income and expenditure account and to forward a copy of the same to the Deputy or Assistant Charity Commissioner of the region or the Sub-region or to the Charity Commissioner, if the Charity Commissioner requires him to do so, and under Sub-section (2) of Section 34 the auditor is required in the balance sheet and in his report to specify all cases of irregular, illegal or improper expenditure, or failure or omission to recover moneys or other property belonging to the public trust or of loss or waste of money or other property thereof and to state, whether such expenditure) failure, omission, loss or waste was caused in consequence of a breach of trust, or misapplication or any other misconduct on the part of the trustees, or any other person. (34) Sub-section (1) of Section 34 merely imposes a duty upon the auditor auditing the accounts of a public trust to carry out certain specified duties and to report cases of irregular, illegal or improper expenditure, or failure or omission to recover moneys or other property belonging to the trust. The duty is imposed upon auditors auditing the accounts of a public trust to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature the Legislature sought to interfere with any matter of religion. Even the religious beliefs that funds belonging to a public trust may not be invested otherwise than in a particular manner, cannot justify the contention that by prohibition without sanction of the Charity Commissioner, of sale, mortgage, exchange or gift at any immovable property or lease for a substantial number of years any interference in matters of religion of any denomination is intended. (38) Section 37 of the Act falls in Chapter VI; Sub-section (a) of that section authorises the Charity Commissioner, the Deputy or Assistant Charity Commissioner or any officer authorised by tile State Government to enter on and inspect or cause to be entered on and inspected any property belonging to a public trust. By Section 68, Sub-section (d), that authority is limited in its exercise to the region or Sub-region for which the officer is appointed. (39) It was strenuously contended both by Mr. Somayya and Sir Jamshedji Kanga that this amounted to a serious interference with matters religious of the communities. It was contended that in the exercise of the power conferred under Section 37. Clause (a), it would be o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the religious practices and usages of the religious institution the entry upon any particular property of the institution is regarded as a sacrilege or is regarded as so inconsistent with the beliefs of the persons accustomed to resort to the institution as amounting to a violation of the religion or as wounding their religious susceptibilities, the officer is by the proviso prevented from exercising the right of entry and inspection of the trust property. In such circumstances he has the power, as stated in Sub-Clause (a), to cause to be entered and inspected any property of a public trust, and he would take steps to authorise some person belonging to that religious persuasion to which the institution belongs so as to carry out inspection or the entry which would be necessary for the purpose of exercising the control under Section 37. In my view there is no substance in the second branch of the argument. (40) Then it was contended under the third branch of the argument that according to the religious tenets of certain faiths the trustees of a religious institution must belong to the community which professes the religion of the institution, and that it would be contrary to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase the provision which enables the Courts to appoint trustees, and in certain event a Charity Commissioner as a trustee cannot be regarded as interference with matters of religion. The whole scheme of the Act as indicated by the diverse sections of the Act is to make provision for the effective control over the administration of funds belonging to public trusts and to compel effective performance of the duties by the persons who are in charge of the management of public trusts. It may be that in certain exceptional cases contemplated by Ss. 44 and 47 the Charity Commissioner may have to be appointed a trustee of a public trust by the Court, but even in making the appointment the Legislature has expressly directed the Court to have regard to the considerations, which I have set out earlier. In my view the contention is raised on grounds of sentiment and not on grounds of constitutionality. (42) Sections 62, 63, 64 and 65 of the Act were also challenged on the ground that they constituted a violation of freedom of religion. Under those sections it is open to the Deputy or Assistant Commissioner to prepare a list of persons liable to serve as assessors who are to be summoned for ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eligion is contemplated by the appointment of assessors and from the assistance rendered by them to the Charity Commissioner in making enquiries contemplated under the Act. On that view the various sections which I have referred to cannot be regarded as contravening the provisions of Article 25 or 26 of the Constitution of India. (43) On the fourth branch of the argument it was contended that under Section 58 it was compulsory for every public trust to pay to the Public Trusts Administration Fund annually such contribution on such date and in such manner as may be prescribed; and by proviso to Section 58 the contribution prescribed is required to be fixed at rates proportionate to the gross annual income of the public trust. It was contended that this was an imposition of a tax which was not within the competence of the State Legislature. Undoubtedly it is not open to the Bombay Legislature under the Constitution to impose a tax other than a tax mentioned in Lists II and III of the Seventh Schedule of the Constitution; and a tax for maintaining a Public Trusts Administration Fund or for the maintenance or control over charities or charitable institutions is not within the competen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d generally for carrying into effect the provisions of the Act, and the custody, investment of the Fund, and the disbursement thereof are to be according to the rules prescribed under the Act. It is therefore clear that the contributions collected under Section 58 are to be utilized for forming a fund distinct from the general revenues of the State, and earmarked for specific purposes; and disbursements from which are to be effected, not in the manner in which the general revenues may be disbursed, but in the manner prescribed by the rules made under the Act. These incidents of the levy of contribution indicate that it is a fee and not a tax. It is true that under Section 6A the pay and allowances of the officers appointed to administer the Fund are to be drawn from the Consolidated Fund of the State and the conditions of service of such officers are such as may be determined by the State Government. But that is a provision made only for the purpose of facilitating the administration and not with a view to mix up the Fund with the general revenues collected for Government purposes. Section 6B provides that out of the Public Trusts Administration Fund costs which the State Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o pay of the party to be taxed to pay and is based on a uniform percentage of the income of the party on whom it is levied. In my view the test for distinguishing between a tax and a fee is not whether the levy is compulsory, nor whether it is an amount which varies with the capacity of a party required to pay, nor whether the party obtains a benefit commensurate with the amount paid by him, but the test is whether in providing the service for which the levy is collected by the State, the State levies an amount approximating to the expenses for providing the service and disburses it for supplying that particular service. If the total levy bears a just and true relation to the cost of providing the service and the levy is not mixed up with the general revenues of the State, then in my view it would be regarded as a fee and not a tax. (47) It was suggested that even though a separate fund was constituted and it was provided by Section 60 that the fund shall be disbursed in the manner prescribed thereunder, it was a mere camouflage and an attempt was made to collect the contribution and apply it for the general governmental purposes. This contention was not expressly raised either in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed. Provided the total cost of supplying the service bears a just and true relation to the total levy, it is immaterial that, burden of the levy on some persons is not commensurate-with the value of the service actually rendered to them. If the elected representatives of the people have thought it necessary to devise a schemer for providing that a certain service should be available to the citizens of the State, it is immaterial that a class of citizens do not desire to avail itself of "that service, or that the service does not confer any appreciable benefit upon that classifications Once the service is provided by the State, the liability for the distributive share according to the scheme of distribution must be paid by the citizens on whom, it is imposed, and it is no answer to say that they are not getting the benefit of the service, or that others are likely to get a much larger benefit of the service, or that they do not need the benefit of the service provided. Though a fee is levied for supplying a service, it is strictly not price paid for obtaining the service, and it is not a recognised incident of 'fee' that it must be equivalent to the value of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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