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

4. The respondent, the Commissioner of Hindu Religious and Charitable Endowments, who had been impleaded by the 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 appellant. 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 rights guaranteed to the citizens of this country under Art. 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 as it was framed was valid, the appellate Bench reversed the decision of the single Judge, allowed the respondents 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.

Reasoning: 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.