Appeal No 745 of 1963
Appeal from the judgment and order dated February 6 1961 of the Andhra Pradesh High Court in Writ Appeal No 71 of 1957
A V Viswanatha Sastri K Rajendra Chaudhuri and K R Chaudhuri for the appellant
254 RGanapathy Iyer and B R G K A char for the respondents
May 8 1964
The Judgment of the Court was delivered by GAJENDRAGADKAR C J
The appellant Shri Jagadguru Kari Basava Rajendraswami of Gavi Mutt is the Matadhipati of Sri Gavi Mutt which is a religious institution dedicated to the propagation and promotion of the tenets of the Veera Saiva cult of Hinduism
This Mutt is situated at Uravakonda in the district of Anantapur
It appears that on the 6th September 1939 the Board of Hindu Religious Endowments constituted under the Madras Act 11 of 1927 hereinafter called the earlier Act  framed a scheme under section 63 of the said Act for the proper administration of the said Mutt and its endowments
The predecessor in office of the appellant then filed suit No 21 of 1939 on the file of the District Judge Anantapur for getting the said scheme set aside
His suit substantially failed because the District Court was persuaded to make only a few minor modifications in the scheme subject to which the scheme was confirmed
That decision was taken in appeal by the predecessor of the appellant to the High Court of Madras AS No 269 of 1945
During the pendency of the said appeal the appellant s predecessor died and the appellant then brought himself on the record as the legal representative of his deceased predecessor
Ultimately the appeal was withdrawn and therefore dismissed
Though a scheme had been formulated by the Board under section 63 of the said Act apparently no effective step was taken to take over the actual management of the Mutt and its endowments
The said management continued as before and the fact that an Executive Officer had been appointed under the scheme made no difference to the actual administration of the Mutt
It was on the 5th April 1952 that the appellant was served with a memorandum asking him to hand over the charge of all the properties of the Mutt to the Executive Officer
A notice issued by the Executive Officer followed on the 16th April 1952 by which the ippellant was informed that the Executive 255 Officer would take over possession
Meanwhile what is known as the Sirur Mutt case was decided by the Madras High Court and the appellant felt justified in refusing to hand over possession to the Executive Officer on the ground that the scheme under which possession was sought to be taken over from him was invalid inasmuch as it contravened the appellant s fundamental rights guaranteed by the Consti tution which had come into force from the 26th January 1950
In 1951 the Madras Hindu Religious and Charitable Endowments Act XIX of 1951 hereinafter called the latter Act  repealed and replaced the earlier Act
The appellant moved the Madras High Court on the 28th April 1952 by his writ petition and prayed for an appropriate writ quashing the notice served on him by the Executive Officer threatening to take over the administration of the Mutt and its properties under the scheme
This petition was heard by a single Judge of the said High Court and was allowed
The learned Judge took the view that some provisions of the Scheme contravened the appellant s fundamental rights under article 1 9 1  f  and so it could not be enforced
It was no doubt urged before the learned Judge that the appellant s writ petition should not be entertained because he had a definite adequate alternative remedy under the latter Act but this plea was rejected by the learned Judge with the observation that where the fundamental right is clearly infringed it is the duty of the Court to interfere in favour of the citizen unless there are reasons of policy which make it inexpedient to do so
Accordingly the learned Judge directed that the scheme should be quashed
He however took the precaution to make the observation that his order did not mean that the Government was not free to make a scheme in consonance with he Constitutional rights of the Matadhipati
The respondent the Commissioner of Hindu Religious and Charitable Endowments who had been impleaded by he appellant to the writ petition along with the Executive Officer challenged the correctness of the decision rendered by the learned Judge in the writ petition filed by the appel 256 lant
This appeal succeeded and the Division Bench which heard the said appeal held that the scheme having been framed as early as 1939 under the relevant provisions of the earlier Act which was valid when it was enacted could  not be challenged on the ground that some of its provisions contravened the fundamental right guaranteed to the citizens of this country under article 19
Certain other contentions were raised before the appellate Bench by the appellant and they were rejected
It is however not necessary to refer to the said contentions because they have not been argued before us
Having taken the view that the scheme when it was framed was valid the appellate Bench reversed the decision of the single Judge alowed the respondent s appeal and directed that the writ petition filed by the appellant should be dismissed
It is against this decision of the Division Bench that the appellant has come to this Court with a certificate granted by the said High Court
Before dealing with the points which have been raised before us by Mr Sastri on behalf of the appellant we may briefly indicate the nature of the scheme which has been framed under the relevant provisions of the earlier Act
This scheme opens with the statement that the Board was satisfied that in the interests of the proper administration of the Mutt and all the endowments movable and immovable belonging thereto a scheme should be settled and so the Board after consulting the Matadhipati of the Mutt and other persons having interest therein proceeded to frame the scheme
It was intended that the scheme should come into force on the 6th September 1939 when it was framed It appears that either because the Executive Officer did no take effective steps to implement the scheme or because the predecessor of the appellant filed a suit challenging the scheme the scheme in fact has not been implemented till today
When the notice was served on the appellant in 1952 and it looked as if the Executive Officer would take over the administration of the Mutt and its properties the present writ proceedings commenced and throughout the protracted period occupied by these proceedings
the status quo has continued
257 The scheme consists of 15 clauses and in substance it entrusts the administration of the Mutt and all its endow ments in the hereditary trustee and two non hereditary trustees appointed by the Board
These latter are liable to be removed by the Board for good and sufficient cause and the Board s order in that behalf has to be final
The Board is authorised to appoint an Executive Officer for the on a salary of Rs 60 per month
Such Executive is required to furnish security in the sum of Rs 5001the satisfaction of the Board
He has to be in charge of the day to day administration of the Mutt and he has to be answerable to the trustees
The trustees are required to meet once a month in the premises of the Mutt for discharg ing their duties
They are given the power to inspect the accounts maintained by the Executive Officer and generally supervise his work
The Board is also given the power to issue directions from time to time regulating the internal management of the Mutt
It would thus be seen that though the scheme was framed in 1939 in essential features it is similar to the pattern of schemes which have been subsequently introduced either by legislation or by judicial decisions in respect of the management of public charitable institutions like the present Mutt Mr Sastri does not dispute the fact that the relevant provisions of the earlier Act as well as the scheme framed under them were valid at the relevant time
He however argues that the earlier Act has been revealed by the latter Act XIX of 1951 and according to him it is necessary to consider whether the present scheme is consistent with the appropriate and relevant provisions of this latter Act
This argument is based on the provisions contained in section 103d of the latter Act
This section provides that notwithstanding the repeal of the Madras Hindu Religious Endowments Act No 11 of 1927 all schemes settled or modified by a Court of law under the said Act or under section 92 of the Code of Civil Procedure 1908 shall be deemed to have been settled or modified by the Court under this Act and shall have effect accordingly
The argument is that though the present scheme was framed under the provisions of the earlier Act
it must now be deemed to be a scheme which 51 SC 17 258 has been settled or modified by the Court under this latter Act and so it is necessary to enquire whether all the pro visions of the scheme are consistent with the material pro visions of the latter Act
If it is found that any of the said provisions are inconsistent with the relevant provisions of the latter Act they must be modified so as to make them consistent with the said provisions
In support of this argument Mr Sastri has invited our attention to the observations made by Lord Asquith of Bishopstone in East End Dwellings Co Ltd vs Finsbury Borough Council1 that if you are bidden to treat an imaginary state of affairs as real you must surely unless prohibited from doing so also imagine as real the consequences and incidents which if the putative state of affairs bad in fact existed must inevitably have flowed from or accompanied it
 Basing himself on these observations Mr Sastri has urged that if the deeming provision prescribed by section 103 d is given its full effect there would be no scope for refusing to apply the test for which he contends
We are not impressed by this argument
It is no doubt true that section 103d provides that a scheme settled or modified by a Court under the earlier Act shall be deemed to have been settled or modified under a latter Act but the effect of this provision merely is to make the schemes in question operative as though they were framed under the provisions of the latter Act the intention was not to examine the said schemes once again by reference to the relevant provisions of this latter Act and re frame them so as to make them consistent with these provisions This position appears to be clear if we examine other sub clauses of section 103
Section 103a which deals with rules made notifications or certificates issued orders passed decisions made proceedings or action taken schemes settled and things done by the Government the Board or its President or by an Assistant Commissioner under the earlier Act provides that the said rules notifications etc
in so far as they are not inconsistent with the latter Act shall be deemed to have been made issued massed taken settled or done by 11952 AC 109 at p 132
259 the appropriate authority under the corresponding provisions of this latter Act and shall subject to the provisions of clause b have effect accordingly
Having thus provided for the continuance of rules notifications orders etc in so far as they are not inconsistent with the provisions of the latter Act section 103b has made provision for the modifications in the said rules
notifications and orders
In other words the scheme of section 103a  b clearly brings out the fact that where the legislature wanted the conti nuance of the action taken under the provisions of the earlier Act only if the said action was consistent with the relevant provisions of the latter Act it has so provided
The same type of provision is made by section 103f g and h
If we examine section 103d in the light of these other provisions
it would be clear that the question of the consistency or otherwise of the schemes to which section 103d applies is treated as irrelevant because no reference is made to the said aspect of the schemes
In other words the schemes to which section 103d applies have to be deemed to be settled or modified under the provisions of the latter Act without examining whether all the provisions of the said schemes are necessarily justified by or consistent with
the provisions of this latter Act and that is why we do not think Mr Sastri is right in contending that the deeming clause prescribed by section 103d necessitates an examination of the said schemes before they are allowed to be continued as though they were settled or modified under the latter Act
This does not however mean that there is no provision prescribed by the latter Act for the modification of such schemes
Section 623a specifically provides that any scheme for the administration of a religious institution settled or modified by the Court in a suit under sub section 1 or on an appeal under sub section 2 or any scheme deemed under section 103 clause d to have been settled or modified by the Court may at any time be modified or cancelled by the Court on an application made to it by the Commissioner the trustee or any person having interest
This provision clearly brings out the fact that if a scheme governed by section 103 d is deemed to have been made or sanctioned tinder the provisions of the latter Act 260 and thus continued modifications in it can be effected by adopting the procedure prescribed by section 623
It other words a scheme like the present is automatically continued by operation of section 103d but is liable to be modified if appropriate steps are taken in that behalf under section 623 
Reading section 103d and section 623 together it seems to us that Mr Sastri s argument that the consistency of the be examined in writ proceedings cannot be entertainment In fact unless modifications are made in the scheme unders
623 the scheme as a whole will be deemed to been made under the latter Act and will be deemed to have valid scheme
That clearly is the purpose of swe do not think we are called upon to consider the further contentions raised by Mr Sastri that came of the clause in the scheme are inconsistent with theprovisions of the later Act
There is one more point to which refrence must be made before we part with this appeal
Mr Sastri contended that though the scheme may have been valid when it was framed since it was not actually enforced before the 26th January 1950 it is  open to the appellant to challenge the validity of the scheme oil the ground that it deprives him of his fundamental right under article 191f and as such invalid
Mr Sastri concedes that the fundamental rights guaranteed by the Constitution are not retrospective in operation but that he say  is no answer to his plea because the deprivation of his property rights is taking place for the first time in 1952 and as such it is open to the challenge that it is invalid on the ground that it contravenes his fundamental right under article 19 1 f
In support of this argument Mr Sastri has relied on certain observations made by Mukherjea J in the case of RS Seth Shanti Sarup vs Union of India and Ors
In that case a partnership firm known as Lallamal Hardeodas Cotton Spinning Mill Company of which the petitioner was a partner
used to carry on the business of production and supply of cotton yam
When it was found that the Mill 1 AIR 1955 SC 624 261 could be run only at a loss it was closed on 19th March 1949
Thereafter on the 21st July
1949 the Government of UP passed an Order purporting to exercise its authority under section 3f of the UP Industrial Disputes Act 1947 by which one of the partners of the firm was appointed as authorised controller of the undertaking
The said order directed the said authorised controller tO take over  possession of the Mill to the exclusion of the other partners and run  it subject to the general supervision of the District Magistrate Aligarh
In 1952 the Union of India passed an order under section 34 of the Essential Supplies Temporary Powers Act 1946 appointing the same person as an authorised controller under the provisions of that section and issued a direction to him to run
the said undertaking to the exclusion of all the other Farmers
It was then that the petitioner moved this Court by writ petition under article 32 and challenged the validity of both the orders on the ground that they were illegal and
that they invaded his fundamental right
His plea was upheld and both the impugned orders were quashed
In appreciating the effect of this decision it is necessary to bear in mind one crucial fact on which there was no dispute between the parties in that case and that fact was that both the
impugned orders did not come with in the purview of and were not warranted by the provisions ofhe relevant Acts under which they were purported to have been issued
In other words it was conceded by the Government that the impugned orders were invalid in law
Even so it was urged that though the orders may be invalid they cannot be challenged under article 32 inasmuch as the first invasion of the petitioner s right was made in 1949 when the Constitutional guarantee was not available to him
repelling this contention Mukherjea J observed that the order against which the petition Was primarily directed was the order of the Central Government passed in October
and that was a complete and clear answer to the contention raised by the learned Attorney General
Even so the learned Judge proceeded to observe that assuming that the deprivation took place in 1949 and at a time when the Constitution had not come into force
the order effect 262 ing the deprivation which continued from day to day must be held to have come into conflict with the fundamental
rights of the petitioner as soon as tile Constitution came into force and became void on and from that date under article 131 of the Constitution
It is on these observations that Mr Sastri s argument is founded
With respect we are not prepared to hold that these observations were intended
to lay down an unqualified proposition of law that even if a citizen was deprived of his fundamental rights by a valid scheme framed under a valid law at a time when the Consti tution was not in force the mere fact that such a scheme would continue to operate even after the 26th January 1950 would expose it th the risk of having to face a challenge under article 19
Ifthe broad and unqualified proposition for which Mr Sastri contends is accepted as true then it would virtually make the material provisions of the Constitution in respect of fundamental rights retrospective in operation
In the present case the scheme was framed and the Executive Officer was appointed as early as 1939
If the Executive Officer could not take over the actual administration of the Mutt and its properties it was partly because the appellant has continuously challenged the implementation of the scheme by legal proceedings and partly because he has otherwise obstructed the said implementation
But it is clear that when the scheme was framed and a challenge made by the appellant to its validity failed in courts of law
his property rights had been taken away
The fact that the order was not implemented does not make any difference to this legal position
If Mr Sastri s argument were right all such schemes though implemented and enforced may still be open to challenge on the ground that they contravened the Matadhipati s fundamental rights under article 19
Such a plea does not appear to have ever been raised and in our opinion cannot be validly raised for the simple reason that the further damental rights are not retrospective in their operation
The observations on which Mr Sastri relies must be read in he light of the relevant fact to which we have just referred
The deprivation of the petitioner s property rights was brought about by invalid orders and it was in respect of such invalid 263 orders that the Court held that the petitioner was entitled to seek the protection of article 19 and invoke the jurisdic tion of this Court under article 32
In our opinion there fore there is no substance in the contention that since in the present case the scheme has not been completely imple mented till 1952 we must examine its validity in the light of the fundamental rights guaranteed to the appellant under article 19 of the Constitution
The result is the appeal fails and is dismissed with costs
Appeal dismissed


Summary:
The appellant who was a Matadhipati moved the High Court for a writ quashing the notice served on him in 1952 by the Executive Officer to band ever to the latter the administration and the properties 253 of the Mutt in enforcement of a scheme framed in 1939 under section 63 of the Madras Act 11 of 1927
The predecessor of the appellant had filed a suit in the District Judge s Court to set aside that scheme
The suit failed and the scheme was confirmed subject to minor modifications
In 1951 the Madras Hindu Religious and Charitable Endowments Act 1951 repealed and replaced the Madras Act 11 of 1927
It was urged on behalf of the appellant in the High Court that the scheme contravened his fundamental rights guaranteed by the Constitution
The single Judge who heard the matter found in his favour and held that the scheme contravened article 191f of the Constitution
On appeal by the respondent the Division Bench reversed the decision of the Single Judge
The High Court granted certificate to the appellant to appeal to this Court
It was contended that although the scheme was valid as framed tinder the earlier Act it incumbent under section 103d of the Act of 1951 that the validity of the all the provisions of the scheme must be tested in the light of its provisions
HeldSection 103d of the Madras Hindu Religious and Charitable Endowments Act 1951 properly construed merely meant that earlier schemes framed under Madras Act It of 1927 would be operative as though they were framed under the Act of 1951
It was not intended by the section that those schemes must be examined and reframed in the light of the relevant provisions of the Act
Section 623a of the Act which provided for the modification of such schemes made this amply clear
Unless the schemes could be modified under that section they must be deemed to have been validly made under the Act of 1951 and enforced as such
East End Dwellings Co Ltd vs Finsbury Borough Council  considered
Although the scheme in question had not been completely implemented before the Constitution that was no ground for examining its provision in the light of article 19 of the Constitution
The fundamental rights conferred by the Constitution are not retrospective in operation and the observation made by this Court in Seth Shanti Sarup vs Union of India are not applicable to the present case
Seth Shanti Sarup vs Union of India AIR 1955 SC 624 explained and distinguished