Tuzapurkar, J. - (1.) The short question raised in this appeal by special leave is whether S, 8 (1) of the Orissa Agricultural Income-tax Act, 1947 suffers from the vice of discrimination and as such is hit by Art. 14 of the Constitution
(2.) The petitioner is the Mahant of Emar Math at Puri, which is an ancient public Hindu Religious Trust. The trust owns considerable endowed properties both agricultural and non-agricultural. After the passing of the Orissa Agricultural Income-tax Act, 1947 (hereinafter called "the Act"), the petitioner as a trustee has been assessed in the status of an "individual" under the Act for the assessment years 1948-49 to 1967-68 in respect of the income derived from agricultural lands owned by the trust. It appears that these assessments have been made after granting the exemption under S. 8 (1) of the Act which provides that "any sum derived from land held under such trust and actually spent for the said purposes (charitable or religious purposes) shall not be included in the total agricultural income of such assessee". By a Writ Petn. No. 48 of 1968, filed under Arts. 226 and 227 of the constituion, the petitioner chanllenged the Constitutional validity of S. 8 (1) of the Act under which the assessments were made principally on the ground that S. 8 (1) was discriminatory and hit by Art. 14 of the Constitution inasmuch as under the said provision in respect of non-Muslim public trusts created for religious or charitable purposes the exemption contemplated therein was confined to such agricultural income as was actually spent for the public purposes of charitable or religious nature while in the case of Muslim trusts (wakfs) the entire agricultural income, whether spent for charitable or religious purposes or not, was exempt from the operation of the Act under S. 9 of the Act. The contention was refuted on behalf of the respondents. On an examination of the provisions of Ss. 8 and 9 in the context of the scheme of the Act the Orissa High Court negatived the said contentions and dismissed the writ petition on Nov. 30, 1971. The petitioner has come up in appeal to this Court.
(3.) Since counsel for the appellant raised the self-same contention before us in support of the appeal it will be desirable to set out the provisions of Ss. 8 and 9 of the Act in order to appreciate his submissions on the point. Section 8 runs thus: "8. Exemption of charitable or religious trusts:- (1) Where the assessee is a trustee and the trust under which he holds the property is a trust, created for public purposes of a charitable or religious nature, any sum derived from land held under such trust and actually spent for the said purposes, shall not be included in the total agricultural income of such assessee. (2) In this section purposes of a charitable nature include relief of the poor, education, medical relief and advancement of any other object of general public utility." Section 9 runs thus: "9. Exemption of Wakf-alal-aulad. -All agricultural income of Muslim trusts referred to in S. 3 of the Musalman Wakf Validating Act, 1913, created before the commencement of this Act, shall be excluded from the operation of this Act: Provided that the share of a beneficiary under a trust under the aforesaid Act, commonly known as Wakf-alal-aulad, shall not be exempted and the tax may be realised from the mutawali and the basis of taxation shall be the share of each beneficiary. Explanation.-For the purposes of this section, a beneficiary means the settler, his family, children and descendants." Since S. 9 refers to Muslim trusts "referred to in S. 3 of the Musalman Wakf Validating Act, 1913", it would be proper to set out the provisions of S. 3 of the Musalman Wakf Validating Act, 1913. Section 3 of that Act runs as follows:- "3. Power of Mussalmans to create certain wakfs.- It shall be lawful for any person professing the Mussalman faith to create a wakf which in all other respects is in accordance with the provisions of Mussalman law, for the following among other purposes:- (a) for the maintenance and support wholly or partially of his family, children or descendants, and (b) where the person creating a wakf is a Hanafi Musalman, also for his own maintenance and support during his lifetime or for the payment of his debts out of the rents and profits of the property dedicated: Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character.";