IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 06-03-2009 CORAM: THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN AND THE HONOURABLE MR. K.K. SASIDHARAN W.A.Nos.117 of 2006 and 2146 of 2005 In W.A.No.117 of 2006: 1. Government of Tamilnadu rep. By its Secretary & Commissioner Commercial Taxes and Charitable Endowments Department Fort St. George Madras 600 009 2. The Commissioner Hindu Religious and Charitable Endowments Administration Department, Mahatma Gandhi Adigal Salai, Nungambakkam Madras 600 034 ... Appellants Versus 1. K. Sevanthinatha Pandarasannathi 2. R. Chinnasamy 3. R. Govindasamy 4. G. Sankaravadivelu ... Respondents In W.A.No.2146 of 2005: R. Chinnasamy ... Appellant Versus 1. K. Sevanthinatha Pandarasannathi 2. Government of Tamilnadu rep. By its Secretary and Commissioner, Commercial Taxes and Charitable Endowments Dept. Fort St. George, Madras 9 3. Commissioner, HR & CE Mahatma Gandhi Road Nungambakkam Chennai 34 4. V. Sankaravadivelu ... Respondents Writ appeals filed against the order passed in W.P.No.13122 of 1994 dated 12-09-2005 on the file of this Court. For appellants ::Mr. S. Ramasami, Addl. Adv. General for Mr. T. Chandrasekaran for HR&CE For respondents :: For R1 ::Mr. A.L. Somayaji, Senior Counsel for Mr. R. Subramaniam & Mr. Sudhakar For R2 ::Mr. R. Krishnamoorthy,Senior Counsel for Mr. V. Ayyaduri R3-died, R4- No appearance JUDGMENT
(PRABHA SRIDEVAN,J.)
The Government amended the Tamil Nadu Hindu Religious and Charitable Endowments (Amendment) Act 1959 (H.R. & C.E. Act in short) by adding clause (aaa) to Section 26 by Act 30/84 with effect from 13-05-1984, disqualifying a person from being appointed as or from being a trustee of any religious institution if he is not a citizen of India. This clause was challenged by the writ petitioner with success and therefore, the State has filed this appeal.
2. The facts are as follows:
On 03-04-1923, the Division Bench of this Court in A.S.Nos.121 and 122 of 1919 framed a scheme for administration of the Temple of Arulmighu Vedaranyaswamy Devasthanam. Clause 3 of the said decree vested the trusteeship of the Temple with Varani Adheenam consisting of a group of persons residing in Karanavai in the District of Jaffna, Ceylon as it was then called. Clause 5 of the decree vests the administration of the Devasthanam and all its affairs on the Managing Trustee appointed by the Varani Adheenam from among themselves. On 29-05-1956, the Deputy Commissioner, H.R. & C.E. initiated proceedings for framing the scheme. On 07-07-1957, the draft scheme was settled and its properties were vested in the hereditary trustee. There was objection to the appointment of the non-hereditary trustee. It was dropped and the hereditary trustee was also given the power to choose the Executive Officer. On 06-04-1963, the scheme dated 07-07-1957 was modified in O.A.No.60 of 1960. The administration continued to be with the hereditary trustee and the power to select Executive Officer was also preserved. On 01-02-1996, the Kadirkama Pandara Sannithi who was elected by the Varani Atheenam was recognized as Trustee. The incumbent died on 22.4.1987. On 11-08-1987 by G.O.Ms.No.915 a fit person was temporarily appointed till a new trustee is nominated by the Varani Adheenam. On 24-08-1987, the Varani Adheenam addressed a letter intimating that he had nominated K. Seventhinatha Pandarasannithi as the Trustee. On 23-12-1987, the Deputy Commissioner, HR & CE recognised the above nomination. The appeal, A.P.No.1 of 1988 filed by one Kumaraswami Pandara Sannithi challenging the appointment of Seventhinatha Pandarasannithi as hereditary trustee was allowed on 18-07-1988 and the matter was remitted to the Deputy Commissioner. On 17-03-1999, the Deputy Commissioner appointed the first respondent as a fit person. On 30-10-1989, the Commissioner, HR&CE by a suomotu revision in 66/89 set aside the order of appointment of the respondent as a fit person. Against this a revision was filed under Section 114 which was also dismissed on 31-12-1990. Challenging this, W.P.No.2801 of 1991 was filed. The writ petition was dismissed and the learned Single Judge held that this was a fit case where the petitioner had to approach a Civil Court for a decision as to who has been validly elected. On 25-04-1991, the first respondent filed O.S.No.190 of 1991 seeking a declaration that he is a properly elected trustee. The rival claimant submitted to the decree. The suit was decreed. On 15-10-1991, the request of the first respondent for being recognised as a Managing Trustee was rejected by the Deputy Commisisoner. The first respondent thereupon filed R.P.No.39 of 1991 before the HR & CE which was dismissed. On 28-10-1992, Varani Adheenam again appointed the first respondent as Managing Trustee. On 31-12-1993, the amendment came into force which disqualified the first respondent from being a trustee since he is not a citizen of India. The learned Single Judge allowed the writ petition on the ground of discrimination. Aggrieved by the same, the writ appeals are filed both by the State and the third respondent.
3. Mr. A.L. Somayaji, learned Senior Counsel appearing for the first respondent who is the writ petitioner submitted that the amendment is ultravires the Constitution. He referred to Entry 17 of the Union List viz., “citizenship, nationalisation and aliens” and submitted that the amendment squarely affects the rights of an alien namely the first respondent. Therefore, the State cannot legislate on a subject which is covered by Entry 17 List I. He submitted that the scope of Entry 17 should be given full play and cannot be restricted in its operation. The learned Senior counsel submitted that the amendment cannot be justified on the ground that the amendment falls within Entry 28 List III deals with “charities, charitable institutions, religious endowments and religious institutions”. The learned Senior Counsel submitted that it is not necessary to invoke the Doctrine of pith and substance since the matter wholly falls within Entry 17. It is also submitted that an alien is entitled to equal protection under law and the Amending Act 30/94 is arbitrary and negates equality. He also submitted that the right to hold office is ‘property’. As per the Scheme decree, the hereditary trusteeship devolved on the respondent and therefore the impugned provision is violative of Article 300A. It was submitted that the amendment which prohibits foreigner or alien from being or being appointed as a trustee is an unreasonable classification and there is no nexus with the object that is sought to be achieved by the amendment. The learned Senior Counsel also submitted that in no other State in India is there such a provision and therefore, this would result in unfair treatment between an alien in the State of Tamil Nadu and an alien for instance, in the State of Karnataka or Andhra Pradesh. The learned Senior Counsel referred to Article 256 and 254 of the Constitution of India. The learned counsel submitted that the fact that the assent of the President has been obtained cannot cure the unconstitutionality. He relied on the following judgments:
(i) AIR 1954 SC 282
(The Commissioner, HR & CE Vs. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt)
(ii) AIR 1970 SC 228
(Indu Bhushan Bose Vs. Rama Sundari Debi and Anr.)
(iii) AIR 1963 SC 703
(Gujarat University Vs. Shri Krishna Ranganath Mudhokar)
(iv) AIR 1972 SC 1061
(Union of India Vs. Harbhajan Singh Dhillon)
(v) AIR 1976 SC 1031
(The Kerala State Electricity Board Vs. Indian Aluminium Co. Ltd.,)
(vi) AIR 2002 SC 3404
(Kaiser-I-Hindi Pvt. Ltd. Vs. National Textile Corporation Ltd.)
(vii) AIR 1983 SC 1019
(Hoechst Pharmaceuticals Ltd. and Ors Vs. State of Bihar and Ors.)
(viii) 2004 (10) SC 201
(State of W.B. Vs. Kesoram Industries Ltd.)
(ix) AIR 1973 SC 231
(The Bar Council of Uttar Pradesh Vs. The State of U.P.)
4. Mr. S. Ramasamy, learned Additional Advocate General submitted that the amendment does not in any trespass into the field occupied by Entry 17 and the amendment cannot be termed as usurpation of Union’s power. Foreigners Act dealt with Centre’s power with regard to foreigners. The State was competent to make laws in respect of all matters connected with “religious institution” and if in that context, the State felt Citizenship should be a qualification for trustee, the same cannot be termed unconstitutional or encroachment into the field occupied by Entry 17. He submitted that in fact, Karnataka has a similar provision. But even if no other State had a similar Act, Article 14 of the Constitution will not come into play. He relied on,
(i) 1989 (3) SCC 634
(Federation of Hotel & Restaurant Association of India Vs. Union of India)
(ii) 2004 (2) SCC 553 (Bharat Hydro Power Corpn. Ltd Vs. State of Assam)
5. Mr. R. Krishnamoorthy, learned Senior Counsel appearing for the respondent would submit that there are provisions in many acts which list citizenship amongst the qualifications to hold the post or negatively provide that not being a citizen would be a disqualification. He relied on the following judgments:
(i) AIR 1979 SC 898 (M. Karunanidhi Vs. Union of India)
(ii) 2005 (3) SCC 212 (Govt. of A.P. Vs. J.B. Educational Society)
(iii) 1998 (7) SCC 26 (Siel Ltd. Vs. Union of India)
(iv) 2007 (2) CTC 207 (S. Bagavathy Vs. State of Tamil Nadu)
(v) 2003 (9) SCC 358
(Welfare Association, A.R.P., Maharashtra Vs. Ranjit P. Gohil and others)
(vi) AIR 1997 Madras 366 (DB)
(Daivid John Hopkins Vs. The Union of India)
(vii) AIR 1954 SC 493( The State of Madhya Pradesh Vs. G.C. Mandawar)
6. Mr. K. Chandrasekaran, learned counsel appearing for the appellant in W.A.No.2146 of 2005 also made his submissions and he would submit that there is no violation of equality if other States do not have similar provision. He relied on the following judgments:
(i) AIR 2005 SC 2920 (Sarbananda Sonowal Vs. Union of India)
(ii) AIR 1994 SC 1461(State of Arunachal Pradesh Vs. Khudiram Chakma)
7. We will deal with each of the objections one by one.
I. Is Article 14 of the Constitution violated since such a condition is not found in any other State?
The chronological narration of events show that the respondent’s claim to be a hereditary trustee was rejected and it has become final. His appointment as a fit person was set aside. He was sent to Civil Court. There he obtained a decree by consent from his rival. His claim to be appointed as Managing Trustee was rejected. At this stage, the amendment came. So he was not holding any post when amendment was introduced. The objection is that when a foreigner can be a trustee in a Hindu Religious and Charitable Institutions in a State other than the State of Tamil Nadu, he is denied that right only in the State of Tamil Nadu. But the learned Additional Advocate General produced a copy of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997, where an identical provision is found. Section 21 of the Act which deals with disqualification of Members reads as follows:
“A person shall not be qualified for being appointed or continued in office as a non-official member on the Advisory Committee, if,–
(a) he is not a citizen of India; …”
Therefore, we may straightaway dismiss this ground of discrimination. Even otherwise, this objection cannot be upheld. The ground of violation of Article 14 is not available for striking down the law of one State on the ground that it is, in contrast with the law of another State discriminatory.
(a) In AIR 1954 SC 493(cited supra), the Supreme Court held,
“that it is conceivable that when the same Legislature enacts two different laws, but in substance, they are for one legislation, it might be open to the Court to disregard the form and treat them as one law. But, such a course is not open where the two laws sought to be read in conjunction are by different Governments and by different legislatures. Article 14 does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory. Nor does it contemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of the two enactments. The sources of authority for the two statutes being different, Article 14 can have no application.”
Therefore, even if other States do not have a similar provision, on that ground, this Act cannot be quashed.
(b) Again, in 1987 (2) SCC 238(Prabhakaran Nair Vs. State of Tamil Nadu), the vires of Section 14(1)(b), 16(2) and incidentally 30(ii) of Tamil Nadu Buildings (Lease and Rent Control) Act were attacked inter alia on the ground that there was a difference with regard to several statutes namely, Maharashtra, Karnataka, Kerala and West Bengal where there are provisions for re-induction of the tenants in the premises after reconstruction and that the Tamil Nadu Buildings (Lease and Rent Control) Act did not have it. It was specifically contended as in this case that the discrimination against the tenants in Tamil Nadu is invidious and violates Article 14 of the Constitution of India. The Supreme Court held that Article 14 of the Constitution does not authorise the striking down of the law on the ground that it is different from the law of another State on the same subject and the provisions are therefore discriminatory. To arrive at this ratio, the Supreme Court relied on AIR 1954 SC 493(cited supra).
Therefore, this ground is rejected.
II. The next ground that was raised was that the legislation has been enacted to single out the respondent, who alone is a foreigner holding the position of trustee in the state of Tamil Nadu.
The State is empowered to enact legislations for ‘administration of religious institutions” as per Entry 28 List III. It is thus that the H.R. & C.E. Act was enacted. Section 26 provides for qualification of a trustee. Several conditions have been prescribed. By the impugned amendment, citizenship has been prescribed as a qualification. The Statement of Objects and Reasons indicate the State’s decision to disqualify foreign nationals from holding the posts of trustees. In the counter it is stated that it is for the better administration.
(a) In 1988 (2) SCC 433 (L.N. Mishra Institute of Economic Development and Social Change, Patna Vs. State of Bihar), the petitioner challenged two ordinances, which provided for take over by the State Government of Private Educational Institutions of the State of Bihar and in the Schedule to the Act, only one Institute was mentioned, namely L.N. Mishra Institute of Economic Development and Social Change, Patna and it was contended by the petitioner, who attacked the Act that it did not disclose any basis or principle for singling out the Institute or by treating it as a class by itself. The Supreme Court referred to AIR 1958 SC 538 (Ram Krishna Dalmia V. Justice S.R. Tendolkar), and in paragraph 11, held in this case that,
“…Certain principles of law have been laid down in that decision. These principles still hold the field and are helpful in considering the constitutionality of a statute. One of these principles is that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself.”
(b) In 1983 (1) SC 51 (S.P. Mittal V. Union of India), a Constitution Bench held, again referring to AIR 1958 SC 538 (cited supra) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself. Paragraph 167 of this judgment, there is reference to AIR 1959 Orissa 5(Ram Chandra Deb Vs. State of Orissa) in which Sri Jagannath Temple Act, 1955 was challenged as being violative of Article 14 of the Constitution in as much as the Legislature had made a separate Act applicable for that particular temple alone. The Supreme Court quoted from the case that came up in appeal (reported in AIR 1964 SC 1501(Raja Birakishore Vs. State of Orissa))therefrom and the same runs as follows:
“There is no violation of Article 14 of the Constitution. The Jagannath Temple occupies a unique position in the State of Orissa and is a temple of national importance and no other temple in that State can compare with it. It stands in a class by itself and considering the fact that it attracts pilgrims from all over India in large numbers, it could be the subject of special consideration by the State Government. A law may be constitutional even though it related to a single individual if on account of special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself.”
Therefore, the fact that the amendment affects only the Vedaranyeswarar Temple or only the respondent cannot be a ground to invalidate the amendment.
III. Next we come to the question relating to Article 254(2) of the Constitution and valid Presidential assent.
To invoke Article 254(2) of the Constitution there should be a State enactment which is repugnant to an earlier enactment by the Parliament on the same matter enumerated in the Concurrent List and then, the State enactment should have been reserved for consideration by the President and his assent should have been obtained. The learned Senior counsel for the respondent writ petitioner submitted that the words “reserved for consideration” and the word “assent” should indicate that there should be active application of mind and relied on AIR 2002 SC 3404 (Kaiser-I-Hind Pvt. Ltd. Vs. National Textile Corporation Ltd.) wherein it was held that “reserved for consideration” is not an idle formality and to find out whether the assent given by the President is restricted or unrestricted, the letter written or the proposal made by the State Government for obtaining assent may be looked into.
(a) In AIR 1973 SC 231(The Bar Council of Uttar Pradesh Vs. The State of U.P.) the Supreme Court held,
“15. A contention sought to be raised on behalf of the appellants based on the question of repugnancy can hardly be of any avail. Once it is held that the power to tax was within the competence of the State Legislature no question of repugnancy under Article 254 of the Constitution could arise. The question of repugnancy can only arise in matters where both the Parliament and the State Legislature have legislative competence to pass laws. In other words when the legislative power is located in the Concurrent List the question of repugnancy arises.”
(ii) In 2005 (3) SCC 212 (Govt. of A.P. Vs. J.B. Educational Society), the Supreme Court held,
“9. The Parliament has exclusive power to legislate with respect to any of the matters enumerated in List I, notwithstanding anything contained in Clauses (2) and (3) of Article 246. The non-obstante clause under Article 246(1) indicates the predominance or supremacy of the law made by the Union legislature in the event of an overlap of the law made by Parliament with respect to a matter enumerated in List I and a law made by the State legislature with respect to a matter enumerated in List II of the Seventh Schedule.
10. There is no doubt that both Parliament and the State legislature are supreme in their respective assigned fields. It is the duty of the Court to interpret the legislations made by the Parliament and the State legislature in such a manner as to avoid any conflict. However, if the conflict is unavoidable, and the two enactments are irreconcilable, then by the force of the non-obstinate clause in Clause (1) of Article 246, the Parliamentary legislation would prevail notwithstanding the exclusive power of the State legislature to make a law with respect to a matter enumerated in the State List.
11. With respect to matters enumerated in the List III (Concurrent List), both the Parliament and the State legislature have equal competence to legislate. Here again, the courts are charged with the duty of interpreting the enactments of Parliament and the State legislature in such manner as to avoid a conflict. If the conflict becomes unavoidable, then Article 245 indicates the manner of resolution of such a conflict.
12. Thus, the question of repugnancy between the Parliamentary legislation and the State legislation can arise in two ways. First, where the legislations, though enacted with respect to matters in their allotted sphere, overlap and conflict. Second, where the two legislations are with respect to matters in Concurrent List and there is a conflict. In both the situations, Parliamentary legislation will predominate, in the first, by virtue of the non-obstante clause in Article 246(1), in the second, by reason of Article 245(1). Clause (2) of Article 245 deals with a situation where the State legislation having been reserved and having obtained President’s ascent prevails in that State; this again is subject to the proviso that the Parliament can again bring a legislation to override even such State legislation.”
(iii) In 2004 (2) SCC 553 (Bharat Hydro Power Corpn. Ltd Vs. State of Assam), the Supreme Court held,
“The Supreme Court while deciding the constitutionality of the Bharat Hydro Power Corporation Limited (Acquisition and Transfer of Undertaking)Act, 1996 observed that where the question for determination is whether a particular law relates to a particular subject mentioned in one list or the other, the Courts look into the substance of the enactment and held that there ought to be a presumption in favour of the validity of the provision and repugnancy may not be made based on a mere possibility. ”
(iv) Various Supreme Court decisions were relied on in this regard but it is not necessary to refer to all of them, because basically what they say is,
“(A) Constitution of India, Art.254- Repugnancy between law made by State and Parliament When may arise.
Repugnancy between a law made by a State and by the Parliament may result from the following circumstances:
1. Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy.
2. Where however a law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with Clause (2) of Article 254.
3. Where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List an entrenchment, if any, is purely incidental or inconsequential.
4. Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254.” (vide AIR 1979 SC 898 (M. Karunanidhi Vs. Union of India))
It is not anybody’s case that the Act is repugnant to a Central enactment on the same matter in List III. No Act relating to religious or charitable institution enacted by the Parliament has been brought to our notice to point out the repugnancy which should have been resolved by obtaining assent from the President. It is no doubt a fact that the State had obtained assent from the President. But, it is the case of the writ petitioner/respondent that the Act is unconstitutional because it deals with a matter which exclusively falls within the Union List namely Entry 17, and not because there is inconsistency with a previous Central Act relating to a matter within the Concurrent List. We find the answer in AIR 1976 SC 1031(cited supra):
“The question of repugnance arises only in case both the legislations fall within the same List III. There can, therefore, be no question of repugnance between the Electricity Act and the Electricity (Supply) Act on the one hand and the Kerala Act on the other, if the former fall in List I or List III and the latter in List II. If any legislation is enacted by a State Legislature in respect of a matter falling within List I that will be without jurisdiction and therefore void.”
So, we do not see why we should go into the questions whether the assent of the President was properly obtained as per Article 254(2). Therefore, these questions whether the President actively assented and whether the records should be brought need not weigh with us any more than if necessary.
So the question whether the President applied his mind before giving his assent need not delay us since in this case, Article 254(2) has no role to play.
IV. Distinction between Hindu alien and aliens professing other religion:
The learned Single Judge has also said that if by the amendment, a discrimination is made between a foreigner, who wants to be a trustee in a Hindu Trust and a foreigner, who wants to be in a Christian Trust or a Muslim Trust, we are afraid that this will not really be a question that falls within Article 14 of the Constitution of India. If the State wants to make a special provision with regard to Hindu Religious and Charitable Institutions without making a similar provision for other Religious Minority Institution, on that ground, no foreigner can complain. The rights of a foreigner under our Constitution are dealt with in the following cases:
(i) AIR 1997 Madras 366 (DB)(cited supra)
In this case, a foreigner challenged the constitutionality of Section 14 of the Citizenship Act which gives the prescribed authority or the Central Government the discretion to grant or refuse the application under Section 5 or 6 claiming citizenship without assigning any reason for such grant or refusal. The Division Bench of our Court dealt in detail with many other cases where foreign nationals had challenged orders passed by this State. In AIR 1991 SC 1886 (Louis De Raedt Vs. Union of India) three foreigners challenged the order of the Union of India which rejected further extension of the period of their Stay. Their case was grounded on Article 5 of the Constitution of India. The Supreme Court held that the fundamental right of the foreigner is confined to Article 21 for life and liberty and does not include the right to reside and settle in the country as mentioned under Article 19(1)(e). They referred to AIR 1955 SC 367 (Hans Muller of Nurenburg Vs. Superintendent, Presidency Jail, Calcutta) where it was held that the power of the Government in India to expel foreigners is absolute and unlimited. In 1996 WLR 386 (Gilles Preiffer Vs. The Union of India) the French citizen holding the French passport applied for extension. He claimed that his right under Article 21 and 14 are violated. The learned Judge held again that the Central Government is vested with the absolute and unfettered discretion to expel a foreigner without any formality.
(ii) In AIR 1951 SCR 41 (Charan Jith Lal Chowdhary Vs. Union of India) the Supreme Court observed that,
“A legislature empowered to make laws on a wide range of subjects must of necessity have the power of making special laws to attain particular objects and must, for that purpose, posses large powers of distinguishing and classifying the persons or things to be brought under the operation of such laws, provided the basis of such classification has a just and reasonable relation to the object which the legislature has in view”.
Therefore, if for administration of the religious institution viz., the Temple and in the national interest it is necessary to insist upon citizenship and prohibit foreigners from being eligible to be a trustee it is a reasonable classification and well within the power of the Legislature. Further, as observed by the Supreme Court in the cases cited hereinafter, the words in the entries in the VII Schedule have to be given its full play. If one of the effects of the amendment resulted in affecting one foreigner viz., the respondent herein, that cannot be a justification for invalidating the entire provision which really comes within the ambit of Entry 28 of List III.
(iii) The rights of the foreigner as enshrined in the Constitution are very limited. If, as is stated in the counter, the State decides that one of the qualifications of a trustee in a Hindu Religious and Charitable Institution is possession of citizenship for the better administration of the temple since the temple has financial resources and its own properties and the Legislature makes it as a requirement, we cannot strike down the Act as an encroachment into the field occupied by Entry 17 List I since it is essentially an Act for the better administration of the temple. The reasons have been given in the counter that considering the situation in the country in recent times, it was considered necessary that a foreigner shall not hold the position of a trustee in a Hindu Religious and Charitable Institution.
V. Next we come to the crucial objection which is the question whether this Act is essentially an Act falling within Entry 17 List I or Entry 28 List III.
(i) We have to see whether the Act primarily affects the rights of a foreigner or is one which deals with administration of religious institution. In this conext the learned Senior Counsel referred to the Foreigners’ Act.
The Foreigners’ Act deals with Citizenship and the learned Single Judge had construed the State Act as though it dealt with the rights of foreign national and that the rights of a foreign national is governed by the provisions of Foreigners’ Act. The Act actually deals with the powers of the Central Government in respect of foreigners.
(a) The Act is intended to confer upon the Central Government certain powers in respect of foreigners specifically Entry of foreigners into India, their presence and their departure therefrom. Section 3 deals with the power to make rules; Section 3A deals with power to exempt citizens from Commonwealth countries and other persons from application of Act in certain cases; Section 4 deals with internees; Section 5 deals with change of name; Section 6 deals with obligations of masters of vessels, etc.; Section 7 deals with Obligation of hotel keepers and others to furnish particulars; Section 8 deals with determination of nationality; Section 9 deals with burden of proof; Section 10 deals with Power to exempt from application of Act; Section 11 deals with Power to give effect to orders, directions, etc. ; Section 12 with Power to delegate authority; Section 13 deals with Attempts, etc., to contravene the provisions of this Act, etc. Section 14 deals with Penalties; Section 15 deals with Protection to persons acting under this Act; Section 16 deals with Application of other laws not barred; Section 17 deals with Repeals. Therefore, the Act itself deals only with the Central Government powers in respect of foreigners. It does not deal with the rights of foreigners.
(b) Section 3(2)(e)(vii) and (ix) were specifically stressed to show that this would indicate that the amendment fail squarely within the legislative competency of the Parliament under Entry 17 of the Union List. Section 3(2)(e)(vii) and (ix) read as follows:
3. Power to make orders.–
(2)..
(e)..
(vii) prohibiting him from engaging in activities of a prescribed or specified description;…
(ix) otherwise regulating his conduct in any such particular as may be prescribed or specified;
These Sections were repeated by the learned Senior counsel for the writ petitioner/respondent that the power to prohibit a foreigner from becoming a trustee is only with the Union and the State Government cannot legislate it. The Hindu Religious and Charitable Endowments Act is a State Act which is covered by Entry 28 of List III. Section 26(1) deals with dis-qualifications of trustees. The dis-qualifications are as follows:
“(1) A person shall be disqualified for being appointed as, and for being a trustee of any religious institution-
(a) if he does not profess the Hindu religion;
[(aa) if he is not a citizen of India];
(b) except in the case of a hereditary trustee, if he is less than twenty five and more than seventy years of age;
(c) if he is an undischarged insolvent;
(d) if he is of unsound mind or is suffering from mental defect or infirmity which would render him unfit to perform the functions and discharge the duties of a trustee or is suffering from leprosy or any other loathsome disease;
(e) if he is interested in a subsisting lease of any property of, or contract made with or any work being done for the religious institution or is in arrears of any kind due by him to such religious institution or endowment;
(f) if he is employed as a paid legal practitioner on behalf of or against the religious institution;
[(ff) if he has been removed or dismissed from service under the Central Government or any State Government or any local authority];
(g) if he has been sentenced by a Criminal Court for an offence involving moral delinquency, such sentence not having been reversed or the offence pardoned;
(h) if he has acted adverse to the interest of the institution.”
(c) If the State feels that citizenship is a requirement, then by including that additional condition as qualification, the Act is still, in pith and substance, dealing with the administration of religious and charitable institution, but incidentally prohibits the foreigner from being a trustee.
(ii) In the counter, the respondents have clearly stated that they insist upon the possession of citizenship as a qualification for the trustee for better and proper administration of the Temple and in view of certain developments in the Country. In fact, if the Legislation had worded it positively that only a citizen of India can be a trustee in Hindu Religious and Charitable Institution, we do not think anyone could have raised any challenge. Instead the wording is negative. There are many cases where one of the qualifications is citizenship or rather, the person who is not a citizen is disqualified from occupying the post. e.g. In Tamil Nadu State and Subordinate Services Rules, Rule 12(c) reads thus:
“(c) A candidate for appointment to a post under the State must be,
(a) a citizen of India, or …
(b)….. ”
The words used in Entry 28 of List III are “religious and charitable institutions”. Therefore, all matters relating to administration of the religious and charitable institution must be understood to have been covered by the Entry. Repeatedly the Supreme Court has held that the words used in the Entries in VII Schedule should be given the widest meaning.
(iii) In State of Gujarat V. Akhil Gujarat Pravasi V.S. Mahamandal (cited supra), the Supreme Court held that in interpreting the scope of various entries in the legislative lists in the Seventh Schedule, the widest-possible amplitude must be given to the words used and each general word must be held to extend to ancillary or subsidiary matters which can fairly be said to be comprehended in it. The Entries should, thus be given a broad and comprehensive interpretation.
(iv) In AIR 1970 SC 228(cited supra), the Supreme Court held,
“It is, in the alternative, contended that, even if the expression “regulation of house accommodation” in this entry includes regulation of houses in private occupation, it should not be interpreted as giving Parliament the power even to legislate for eviction of tenants who may have occupied the houses under private arrangement with the owners. It should be confined to legislation for the purpose of obtaining possession and allotment of such accommodation to military authorities or military officers. We cannot accept that the word “regulation” can be so narrowly interpreted as to be confined to allotment only and not to other incidents, such as termination of existing tenancies and eviction of persons in possession of the house accommodation. The dictionary meaning of the word “regulation” in the Shorter Oxford Dictionary is “the act of regulating” and the word “regulate”‘ is given the meaning “to control, govern or direct by rule or regulation”. This entry, thus, gives the power to Parliament to pass legislation for the purpose of directing or controlling all house accommodation in cantonment areas. Clearly, this power to direct or control will include within it all aspects as to who is to make the constructions under what conditions the constructions can be altered, who is to occupy the accommodation and for how long, on what terms it is to be occupied, when and under what circumstances the occupant is to cease to occupy it, and the manner in which the accommodation is to be utilised. All these are ingredients of regulation of house accommodation and we see no reason to hold that this word “regulation” has not been used in this wide sense in this entry.”
(v) In 2007 (2) CTC 207 (S. Bagavathy Vs. State of Tamil Nadu), the Full Bench of this Court held thus:
“73. When an entry is to be given its widest meaning but it cannot be so interpreted as to override another entry or make another entry meaningless and in case of an apparent conflict between different entries, it is the duty of the court to reconcile them.
74. In interpreting the scope of various entries in the legislative lists in the VII Schedule, widest-possible amplitude must be given to the words used and each general word must be held to extend to ancillary or subsidiary matters which can fairly be said to be comprehended in it. The entries should, thus be given a broad and comprehensive interpretation. [vide. State of Gujarat v. Akhil Gujarat Pravasi V.S. Mahamandal 2004 (5) SCC 155]. ”
(vi) The following paragraphs in In Hoechst Pharmaceuticals Ltd. and Ors. v. State of Bihar and Ors., – (AIR 1983 SC 1019) are relevant:-
(1) the various entries in the three Lists are not ‘powers’ of legislation but ‘fields’ of legislation. The Constitution effects a complete separation of the taxing power of the Union and of the States under Article 246. There is no overlapping anywhere in the taxing power and the Constitution gives independent sources of taxation to the Union and the States.
(2) In spite of the fields of legislation having been demarcated, the question of repugnancy between law made by Parliament and a law made by the State Legislature may arise only in cases when both the legislations occupy the same field with respect to one of the matters enumerated in the Concurrent List and a direct conflict is seen. If there is a repugnancy due to overlapping found between List II on the one hand and List I and List III on the other, the Stats law will be ultra vires and shall have to give way to the Union law.
…
(4) The entries in the List being merely topics or fields of legislation, they must receive a liberal construction inspired by a broad and generous spirit and not in a narrow pedantic sense. The words and expressions employed in drafting the entries must be given the widest possible interpretation. This is because, to quote V. Ramaswami, J., the allocation of the subjects to the lists is not by way of scientific or logical definition but by way of a mere simplex enumeration of broad categories. A power to legislate as to the principal matter specifically mentioned in the entry shall also include within its expanse the legislations touching incidental and ancillary matters.
(5) Where the legislative competence of a Legislature of any State is questioned on the ground that it encroaches upon the legislative competence of Parliament to enact a law, the question one has to ask is whether the legislation relates to any of the entries in Lists I or III. If it does, no further question need be asked and Parliament’s legislative competence must be upheld. Where there are three Lists containing a large number of entries, there is bound to be some overlapping among them. In such a situation the doctrine of pith and substance has to be applied to determine as to which entry does a given piece of legislation relate. Once it is so determined, any incidental trenching on the field reserved to the other Legislature is of no consequence. The Court has to look at the substance of the matter. The doctrine of pith and substance is sometimes expressed in terms of ascertaining the true character of legislation. The name given by the Legislature to the legislation is immaterial. Regard must be had to the enactment as a whole, to its main objects and to the scope and effect of its provisions. Incidental and superficial encroachments are to be disregarded.
(6) The doctrine of occupied field applies only when there is a clash between the Union and the State Lists within an area common to both. There the doctrine of pith and substance is to be applied and if the impugned legislation substantially falls within the power expressly conferred upon the Legislature which enacted it, an incidental encroaching in the field assigned to another Legislature is to be ignored. While reading the three Lists, List I has priority over Lists III and II, and List III has priority over List II. However, still, the predominance of the Union List would not prevent the State Legislature from dealing with any matter with in List II though it may incidentally affect any item in List I.
(emphasis supplied)
(vii) In State of Maharashtra Vs. Bharat Shanti Lal Shah and Others (2008 (1) Scale 167) where the Maharashtra Control of Organised Crime Act, 1999 (‘MCOCA” in short) was challenged on the ground that the State Legislature did not have the legislative competence to enact such a law and also that the aforesaid law is unreasonable and is violative of the provisions of Article 14 of the Constitution of India, the Bombay High Court upheld the constitutional validity of Sections 2(d), (e) and (f) and also the provisions of Section 3 and 4 but struck down Sections 13 to 16 as unconstitutional as being beyond the legislative competence of the State Legislature. It held that Parliament alone has the power to make law in that regard as provided for under Entry 31 of List I of Seventh Schedule to the Constitution and since already the Indian Telegraph Act, 1885, a Central Act was holding the field, the provisions of MCOCA which empowers the police to apply to the competent authority for approving the interception of wire, electronic or oral communication where there is evidence of an offence involving a organized crime was beyond the legislative competence of the State Legislature. The State moved the Supreme Court. The Supreme Court held that,
“34. A perusal of the relevant provisions of MCOCA would indicate that the said law authorizes the interception of wire, electronic and oral communication only if it is intended to prevent the commission of an organised crime or if it is intended to collect the evidence to the commission of such an organized crime. Interception of wire, electronic and oral communication with the said intent in case of urgency is also permitted under the State Act in which case it is to be approved by an officer not below the rank of Additional Director General of Police within 48 hours of occurrence of interception.”
The Supreme Court referred to 1997 (2) SCC 453 (State of Bihar Vs. Bihar Distillaries Limited), wherein it held as follows:
“The approach of the court, while examining the challenge to the constitutionality of an enactment, is to start with the presumption of constitutionality. The court should try to sustain its validity to the extent possible. It should strike down the enactment only when it is not possible to sustain it. The court should not approach the enactment with a view to pick holes or to search for defects of drafting, much less inexactitude of language employed. Indeed, any such defects of drafting should be ignored out as part of the attempt to sustain the validity/ constitutionality of the enactment. After all, an Act made by the legislature represents the will of the people and that cannot be lightly interfered with. The unconstitutionality must be plainly and clearly established before an enactment is declared as void. The same approach holds good while ascertaining the intent and purpose of an enactment or its scope and application….”
39. We are of the considered opinion that source of power to legislate the aforesaid Act can be derived by the State from the aforesaid entries of the State List and the Concurrent List and while enacting the aforesaid State Act the assent of the President was also taken. Therefore, the Act cannot be said to be beyond the legislative competence of the State Legislature. The content of the said Act might have encroached upon the scope of Entry 31 of List I but the same is only an incidental encroachment. As the main purpose of the Act is within the parameter of Entry 1 and 2 of the State Legislature we find no reason to hold that the provisions of Sections 13 to 16 are constitutionally invalid because of legislative competence.”
The Supreme Court then considered that since the object of MCOCA is to prevent the organized crime even if the Act might have encroached upon the scope of Entry 31, it is only an incidental encroachment and since the main purpose of the Act is within the parameter of Entry 1 and 2 of the State Legislature, there was no reason to hold that the provisions of Sections 13 to 16 are constitutionally invalid because of legislative competence.
(viii) With regard to incidental encroachment the Supreme Court in AIR 1976 SC 1031 (K.S.E. Board Vs. Indian Aluminium Co.) while explaining the scope of Article 254 referred to AIR 1970 SC 228 (Indu Bhusan V. Sundara Devi) and said, ” the subject-matter of that legislation incidentally trenches upon and might come to fall under another List, the Act as a whole would be valid notwithstanding such incidental trenching.”
(ix) In 1989 (3) SCC 634(cited supra), the Supreme Court stressed that it is the duty of the Courts however difficult it may be to ascertain to what degree and to what extent the authority to deal with matters falling within these classes of subjects exists in each legislature and to define, in the particular case before them, the limits of the respective powers. The Supreme Court held thus:
“It is trite that the true nature and character of the legislation must be determined with reference to a question of the power of the legislature. The consequences and effect of the legislation are not the same thing as the legislative subject matter. It is the true nature and character of the legislation and not its ultimate economic results that matters.”
This is relevant in this case. The true nature and character of the section, is that the State intends that for the better and proper administration only a citizen shall be qualified to be a trustee. So the State imposes a disqualification on non-citizens from holding the post. It cannot be said that it is an unreasonable classification nor that it is totally disconnected to the object sought to be achieved. The State Legislature can enact laws in respect of a religious institution. If as a consequence foreigners are disqualified from holding the post, then that cannot be a reason for holding that the Legislature has made an inroad into the field covered by List I. The impugned judgment has considered the competency of the State Legislature by looking at the impact of the legislation on one single foreigner namely the first respondent. We do not think that approach is correct. If the character of the legislation is one dealing with administration of religious institution for which the State has a concurrent power the possible consequence cannot invalidate it. Anyway we also do not see on facts that the respondent had any ‘existing right’ as the impugned judgment calls it.
(x) While drafting the original Section 26, the possibility of foreign national claiming trusteeship may not have been envisaged. But now the State has decided now decides that Indian Citizenship is a pre-requisite before a person makes a claim to the office of the trusteeship. It is purely and simply a provision dealing with the administration of religious institution. If as is held in the decisions referred to above, we have to give the widest amplitude to each Entry, then the words “religious institution” will take in, all aspects of administration, which will include who shall be a trustee and what shall be the trustee’s qualification. To achieve this legislative object if there is incidental trenching into Entry 17 List I that has to be ignored. We have to sustain the legislation as far as possible unless unconstitutionality stares in the face. We find that decision in 2008 (1) SCALE 167 (cited supra) answers almost all the objections. We have examined the provisions and we do not find that it is ultravires or beyond the competence of the State.
Therefore, this ground is also rejected.
8. For all these reasons, the judgment of the learned Single Judge is set aside and the writ appeals are allowed. No costs.
glp
To
1. Government of Tamilnadu
rep. By its Secretary & Commissioner
Commercial Taxes and Charitable
Endowments Department
Fort St. George
Madras 600 009
2. The Commissioner
Hindu Religious and Charitable
Endowments Administration
Department, Mahatma Gandhi
Adigal Salai, Nungambakkam
Madras 600 034