Case: Sri Jagadguru Kari Basavarajendraswami Of Gavimutt Vs. Commissioner Of Hindu Religious Charitable Endowments

that the fundamental rights guaranteed by the Constitution are not retrospective in operation; but that he says, 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). 12. In support of this argument, Mr. Sastri has relied on certain observations made by Mukherjee J., in the case of Shanti Sarup v. Union of India, (S) AIR 1955 SC 624 . In that case a partnership firm known as Lallamal Kardeodas Cotton Spinning Mill Company of which the petitioner was a partner, used to carry on the business of production and supply of cotton yarn. When it was found that the Mill could be run only at a loss, it was closed on 19th March, 1949. Thereafter on the 21st July, 1949, the Government of U.P. passed an order purporting to exercise authority under Section 8(f) of the U.P. 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 u/S. 3(4) of the Essential Supplies (Temporary Powers) Act, 1946 appointing the same person as an authorised controller under the provisions of that section, and issued direction to him to run the said undertaking to the exclusion of all the other partners. It was then that the petitioner moved this Court by writ petition under Art. 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. 13. In appreciating the effect of this decision, it is necessary to hear 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 within the purview of, and were not warranted by, the provisions of the 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 Art. 32 inasmuch as the first invasion of the petitioners right was made in 1949 when the constitutional guarantee was not available to him. In repelling this contention, Mukherjee, J. observed that the order against which the petition was primarily directed was the order of the Central Government passed in October, 1952, 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 effecting the deprivation which continued from day to day must he held to have come into conflict with the fundamental rights of the petitioner as soon as the Constitution came into force and became void on and from that date under Art. 13(1) of the Constitution. It is on these observations that Mr. Sastris 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 Constitution was not in force, the mere fact that such a scheme would continue to operate even after the 26th January, 1950, would expose it to the risk of having to face a challenge under Art. 19. If the 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. 14. The fact that the order was not implemented does not make any difference to this legal position. If Mr. Sastris argument were right, all such schemes, though implemented and enforced, may still be open to challenge on the ground that they contravened the Matadhipatis fundamental rights under Art. 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 fundamental rights are not retrospective in their operation. The observations on which Mr. Sastri relies must be read in the light of the relevant fact to which we have just referred. The deprivation of the petitioners property rights was brought about by invalid orders and it was in respect of such invalid orders that the Court held that the petitioner was entitled to seek the protection of Art. 19 and invoke the jurisdiction of this Court under Art. 32. In our opinion, therefore, there is no substance in the contention that since in the present case, the scheme has not been completely implemented till 1952, we must examine its validity in the light of the fundamental rights guaranteed to the appellant under Art, 19 of the Constitution. 15.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. We are not impressed by this argument. It is no doubt true that S. 103(d) provides that a scheme settled or modified by a Court under the earlier Act shall be deemed to have been settled or modified under the 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 scheme once again by reference to the relevant provisions of this latter Act and reframe them so as to make them consistent with these provisions. This position appears to be clear if we examine other sub-clauses of S. 103. Section 103(a) which deals with rule made, notifications or certificates issued, orders passed, decisions made, proceedings an action taken, scheme 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, passed, settled or done by the appropriate authority under the corresponding provisions of this latter Act and shall subject to the provisions of Cl. (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 provision, of the latter act, S. 103 (b) has made provision for the modifications in the said rules, notifications and orders. In other words, the scheme of S. 103(a) and (b) clearly brings out the fact that where the legislature wanted the continuance 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 S. 103(f), (g) and (h). If we examine S. 103(d) in the light of these other provisions, it would be clear that the question of the constancy or otherwise of the scheme of S. 103(d) applies, is treaded as irrelevant, because no reference is made to the said aspect of the schemes. In other words, the schemes to which S. 103(d) 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 S. 103(d) necessitates an examination of the said schemes before they are allowed to continue as though they were settled or modified under the latter Act10. This does not, however, mean that there is no provision prescribed by the latter Act for the modification of such schemes. Section 62(3)(a) 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 S. 103, clause (d), to have been settled or modified by the Court may, at any time, be modified or cancelled by the Court on 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 S. 103(d) is deemed to have been made or sanctioned under the provisions of the latter Act and thus continued, modifications in it can be effected by adopting the procedure prescribed by S. 62(3). In other words, a scheme like the present is automatically continued by operation of S. 103(d), but is liable to be modified if appropriate steps are taken in that behalf under S. 62(3). Reading S. 103(d) and S. 62(3) together, it seems to us that Mr. Sastris argument that the consistency of the scheme with the relevant provisions of the latter Act should be examined in writ proceedings, cannot be entertained. In fact, unless modifications are made in the scheme under S.62(3), the scheme as a whole will be deemed to have been made under the latter Act and will be enforced as a valid scheme. That clearly is the purpose of S. 103(d). Therefore, we do not think we are called upon to consider the further contentions raised by Mr. Sastri that some of the clauses in the scheme are inconsistent with the provisions of the latter ActWith 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 Constitution was not in force, the mere fact that such a scheme would continue to operate even after the 26th January, 1950, would expose it to the risk of having to face a challenge under Art. 19. If the 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. Sastris argument were right, all such schemes, though implemented and enforced, may still be open to challenge on the ground that they contravened the Matadhipatis fundamental rights under Art. 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 fundamental rights are not retrospective in their operation. The observations on which Mr. Sastri relies must be read in the light of the relevant fact to which we have just referred. The deprivation of the petitioners property rights was brought about by invalid orders and it was in respect of such invalid orders that the Court held that the petitioner was entitled to seek the protection of Art. 19 and invoke the jurisdiction of this Court under Art. 32. In our opinion, therefore, there is no substance in the contention that since in the present case, the scheme has not been completely implemented till 1952, we must examine its validity in the light of the fundamental rights guaranteed to the appellant under Art, 19 of the Constitution.