JUDGENT

The plaintiffs are the appellants and the appeal is preferred against the judgment and decree dated 19.04.2004 in A.S.No.67 of 2002 on the file of the Additional Sub-Court, Nagercoil confirming the judgment and decree dated 08.11.2002 in O.S.No.36 of 1999 on the file of the Additional District Munsif Court, Nagercoil.

2. The suit was filed for declaration that the Executive Officer/Deputy Commissioner, Incorporated and Unincorporated Devaswam, Suchindrum, Nagercoil District and others are not entitled to collect any fee for special Dharsan of Devi Bhagavathi Amman Temple at Kanyakumari and for permanent injunction restraining the defendants from collecting the special fee.

3. The brief facts of the case is as follows:

Originally the Kanyakumari District was under the administration of Cochin Monarchs and while so the worship of deity in various temples was free. After the re-organisation of new states, the present Kanyakumari District was formed on 01.01.1957. The custom and usage prevailing in the erstwhile Travancore-cochin namely, ‘free Dharsan’ in the temples continued to be in force. That being so the respondent/defendants announced that a ‘Special Dharsan fee’ is to be charged at Rs.10/- at Arulmigu Devi Bhagavathi Amman Temple at Kanyakumari. Questioning such levy of fees, the plaintiffs have filed the suit in the representative capacity for the reliefs as stated above.

4. The suit was resisted by the respondents/defendants on various grounds, inter alia, stating that the suit is not maintainable as the collection of fee for special Dharsan will not in any way affect the plaintiffs and there is no discrimination in Dharsan; the administration of the defendants shall not be questioned by the plaintiff and the fee is collected only to assist the aged, woman and similar handicapped persons to enable them to skip the common queue and provide them a special entrance for a Dharsan.

5. The learned Additional District Munsif, Nagercoil, dismissed the suit as not maintainable and on appeal by the plaintiffs, the learned subordinate Judge, Nagercoil, also confirmed the judgment and decree of the trial court. Therefore, the second appeal is filed on the following grounds;

“1. that the que4stion before the courts below for consideration is whether the respondents/ defendants are authorized to impose an entry fee for Dharsan in Sri Devi Kanyakumari Amman Temple, contrary to time honoured custom and practice of free entry in to temple by all worshipers from time immorial.

2. that the courts below failed to note that in kanyakumari Temple there was no custom for collection to worship god and only there is a fee fixed for performing poojas.

3. that the allegation that during, rush seasons the worshipers have to stand for long periods in queue as old, pregnant ladies, ailing peoples and people in a hurry find it difficult to stand in queue is no argument to impose a fee in the guise of a tax. For, if some people of have to be helped like the old and pregnant, there can be a separate arrangement without a change was not noted by the courts below. A temple is a place of equity and a man in hurry can not have a preference.

4. The written statement admit the proposed levy as ‘entrance fee’ and the law did not authorize. Both the courts below failed to understand and apply provisions of Sections 7 & 8 of the Tamilnadu (Transferred Territory) Extension of Laws Act (27/157)

5. The lower courts were wrong in dismissing the suit when DW1 has categorically admitted that in Travancore-Cochin (o which suit temple belonged) there is no special entrance fees till date”.

6. On admission of the second appeal, the following substantial questions of law were formulated:

“1. Whether imposing entry fee for Dharsan at Sri Devi Bhagavathi Amman Temple violates the constitutional provisions of Articles 14 and 256?

2. Whether the respondents are competent to impose an entrance fee in the nature of a tax without authority of law, particularly in v