Case: Sri Sadasib Prakash Brahmachari Vs. The State Of Orissa(With Connected Petitions)

The first statutory interference by the Provincial Legislature with the management of Hindu religious endowments in Orissa was by the Orissa Hindu Religious Endowments Act, 1939 (Orissa Act 4 of 1939) which came into operation on 31-8-1939. This was modelled on a similar Act operating in the Province of Madras at the time. The validity of the Act as a whole as also of certain provisions thereof were challenged by the Mahants of the various Maths in Orissa, about 30 in number, by instituting a suit in the year 1940. The suit was on behalf of the individual Maths who figured a plaintiffs (including three of the present petitioners, viz., Mahants of Mahiparakash Math, Dakhinaparswa Math and Radhakanta Math) and also in a representative capacity under O. I., R. 8, Civil P. C. (Vide printed record of this Court in Case No. I of 1950). That suit was dismissed by the District Judge of Cuttack and came up in appeal to the High Court of Orissa. The High Court upheld the validity of the Act and of the various sections thereof by its judgment dated 13-9-1949, which is reported in Gadadhar Ramanuj Das v. Province of Orissa 1950 Orissa 47 (AIR V 37) (A).An appeal was filed therefrom to the Supreme Court in January, 1950, which was numbered as Case No. 1 of 1950 Jagannath (AIR V 41) (B). This appeal remained pending for over four years and came up for final hearing in February, 1954. During the period of pendency of the appeal the Orissa Legislature passed two further Acts relating to Hindu religious endowments. The first of them was Orissa Act 2 of 1952 which was an Act to "amend and consolidate the law relating to the administration and governance of Hindu religious institutions and endowments in the State of Orissa". and which on its coming into force was intended to repeal the pre-existing Orissa Act 4 of 1939. This Act became law on 16-2-1952, by the assent of the President. It did not, however, come into force at once on account of sub-s. (3) S. 1, therein which provided that the Act is to "come into force on such date as the State Government may, by notification, direct". No such notification was issued during the pendency of the appeal in the Supreme Court. This Act was, in fact, brought into force much later, i. e., only as from 1-1-1955, by a notification of the Government of Orissa dated 22-12-1954, published in the Orissa Gazette dated 31-12-1954. While thus the 1952 Act remained on the statute book without its coming into force, other independent statutory provisions amending the Act of 1939 were passed and brought into operation. The first of them was Orissa Ordinance 2 of 1953 which was promulgated by the Governor of Orissa on 16-5-1953. This was later superseded and substituted by Orissa Act 18 of 1953 which came into operation of 28-10-1953. By these two successive legislative measures, the Act of 1939 was amended on certain respects and it is the Act so amended that was in operation during the period from May, 1953 to March, 1954, falling within the later portion of the pendency of Case No. 1 of 1950 in the Supreme Court.Some time in 1953, subsequent to the month of May, the Commissioner of Hindu Religious Endowments, Orissa, appears to have initiated proceedings for the framing of schemes in respect of a number of Maths, and schemes were actually framed during this period as regards the four Maths, Mahiparakash, Uttaraparswa, Dakshinaparswa and Radhakanta comprised in Petitions Nos. 651 of 1954, 49, 46 and 51 of 1955, respectively. These schemes were brought into operation and the administration of some of these Maths was taken over by the Trustees under the schemes. Thereafter Mahants of three of the affected Maths, Mahiparakash, Uttaraparswa and Radhakanta, who are also petitioners before us, filed applications under Art. 226 before the High Court of Orissa challenging the validity of the schemes. Those application were dismissed by the High Court on 17-2-1954.Meanwhile the Mahant of Dakshinaparswa Math who was a petitioner in the High Court and also before us, filed along with another Mahant, a petition under Art. 32 of the Constitution to this Court on 23-12-1953, challenging the Act then in force as being in violation of their fundamental rights. This was petition No. 405 of 1953. This petition well as Case No. 1 of 1950, referred to above came up for hearing together, in this Court on the 9th, 10th and 11th February, 1954. Judgment of this Court therein was delivered on 16-3-1954, and is reported in 1954 SC 400   (AIR V 41) (B).As a result thereof, Ss. 38 and 39 of Orissa Act 4 of 1939 as amended in 1953, under which the scheme were framed were declared unconstitutional. Accordingly, the schemes became invalid and therefore the possession of such of the Maths which had been taken over under the schemes was restored to the Mahants. (It may mentioned in passing, in this context, that the judgment of this Court refers to Orissa Act 2 of 1952 as being the one in force at the time and whose provisions were under consideration by the Court. This is slip. The Act then in force was, as already stated, the Act of 1939 as amended in 1953. That this is a slip in the judgment is admitted before us. That does not, however, in any way detract from the reasoning and the binding character of the judgment, since as a fact what were really referred to were the sections of the 1939 Act as amended in 1953). Now, after the judgment of this Court was delivered in March 1954, the Orissa Legislature again intervened and passed another Act, Orissa Act 18 of 1954. This Act purported to amend not the 1939 Act which was by then in operation but the 1952 Act which had not by then came into force. Orissa Act 18 of 1954 received the assent of the President on 2-12-1954, and came into force at once and therefore Orissa Act 2 of 1952 became pro tanto amended and modified. By that date the 1952 Act so amended was awaiting the issue of notification under S. 1 (3) thereof for being brought into force. This notification, as already stated, was ultimately issued on 22-12-1954, bringing Orissa Act 2 of 1952 as amended by Act 18 of 1954 into force from 1-1-1955, and thereby repealing Orissa Act 4 of 1939 as amended in 1953. The first of the petitions before us relating to Mahiparakash Math was filed in this Court, anticipating this notification, while the other four were filed after the notification wasthe Act as it stood in 1939 the provisions in this behalf are Ss. 38, 39, 40.Since the attack is mainly as regards the procedure for the framing of the scheme, it is sufficient to notice what the gist of these three provisions is in so far as it relates to the procedure for an enquiry to frame a scheme. Under these three sections the enquiry is to be held by the Commissioner for Endowments appointed under the Act. For this purpose he is to function jointly with one or more persons in the service of the Crown appointed by the Provincial Government in this behalf. The enquiry has to be conducted "in such manner as may be prescribed". In making the enquiry the Commissioner and the person or persons associated with him therein are to consult the trustee and the person having interest. After the scheme is settled and the order determining the scheme is published in the prescribed manner the trustee or any person having interest may, within six months of the date of such publication, institute, a suit in the Court to modify or set aside such order. The order settling a scheme is final and binding on the trustee and all persons having interest, subject to the result of the suit. If any, as above mentioned. Of course, the result of the suit itself would, under the general law, be subject to further appeal under the Civil Procedure Code in the ordinary way.4. Changes were made in these provisions in 1953 first by Orissa Ordinance 2 of 1953 and then by Orissa Act 18 of 1954 as already stated. The modification is that sub-s. (4) of S. 39 which provided for a right of suit, by the trustee or the person interested, in the regular civil Court (with the concomitant further appeals to higher Courts) was deleted and the following was substituted as sub-s. (4) of S. 39. Every order under this section shall be published in the prescribed manner and the order so passed shall be final and binding on the trustee and all persons having interest." As a consequence thereof S. 40 of the 1939 Act, which stated that subject to the result of the suit the order settling a scheme is final", was omitted. The result of these two changes was that once the Commissioner with the assistance of one or more Government officers who were to be specially nominated, settled a scheme after making the prescribed enquiry, that order was not open to any further question or correction in the ordinary Courts. It was at this stage that the validity of the provisions relating to the framing of a scheme came up for consideration before this Court in March, 1954. The Court held that the legislation in so far as it authorised the framing of a scheme by the Commissioner along with his associates and declared such determination as final without any scope for correction thereof by judicial intervention, was an unreasonable restriction on the right of the head of the Math with reference to his interest in the math. Accordingly Ss. 38 and 39 of the Act then in force were struck down as unconstitutional and invalid. The present provisions which are the result of a later amendment are contained in Ss. 42 and 44 of the present Act and are substantially different. The relevant portions thereof are as follows :"42. (1) Whenever there is reason to believe that in the interest of the proper administration of religious institution a scheme may be settled for it or when not less than five persons having interest make an application in writing stating that in the interests of the proper administration of a religious institution a scheme should be settled for it, the Assistant Commissioner or the Commissioner, as the case may be, shall proceed to frame a scheme in the manner hereinafter* * *(b) in the case of a religious institution presided over or managed by a hereditary trustee, the Assistant Commissioner shall make such enquiry as he thinks fit and submit his report to the Commissioner who shall hold an enquiry in the manner prescribed and so far as may be, in accordance with the provisions of the Code of Civil of Procedure, 1908; relating to the trial of suit and if he satisfied that in the interests of the proper administration of such institution a scheme of administration should be settled, he shall consult in the prescribed manner the trustee and the persons having interest and by order settled a scheme of administration for the institution.* * * *(7) Every order of * * * the Commissioner settling a scheme under this section shall, subject to the provisions of S. 44, be binding on the trustee, the Executive Officer and all persons having interest.44. (1) * * *(2) Any party aggrieved by the order of the Commissioner under sub-s. (1) of S. 42 may appeal to the High Court within thirty days from the date of the order or publication thereof as the case may be".In the last of the petitions relating to Manapur Math, the facts appear to be slightly dissimilar but this makes no substantial or material difference. In that case the original scheme was one framed under Ss. 38 and 39 of the 1939 Act as they stood before their amendment in 1953 which provided for a right of suit. The scheme itself was dated 22-5-1948. Previous to the framing of the scheme there appears to have been a claim by the Mahant that the institution was a private one and not a public one and that it did not fulfil the definition of the word "Math" under the Act. There appears to have been a compromise between the then Mahant and the public of the village in which the Math is situated, who were interested in the Math. The compromise was to the effect that the institution was to be declared a Math but that the then Mahant was to be recognised as the hereditary trustee thereof. This compromise was recognised by the Commissioner by his order dated 12-5-1947, formally making the above declarations. It was on the basis of this that, latter on, a scheme was framed on 22-5-1948. It does not appear that the Mahant filed any suit which was then available to him.

Reasoning:
There can be no doubt that the two sections apply to these Maths. The phrase "religious institution" occurring in S. 42 has been defined as meaning (also) "a math and endowments attached thereto". A Math is "an institution * * * succession to the headship of which devolves in accordance with the directions of the founder or is regulated by customs" and a hereditary trustee is a "a trustee of an institution succession to whose office devolves * * * by custom or in specifically provided for by the founder". A Math is therefore a religious institution presided over or managed by a hereditary trustee so as to render S. 42(1) (b) applicable.The effect of these provisions of the present Act is (1) that a scheme can be framed by the Commissioner alone on a report of the Assistant Commissioner on such enquiry as he thinks fit and not by the Commissioner in association with one or more Government officers to be appointed for the purpose by the Government, (2) that there is no right of suit for challenging the validity or the correctness of the scheme framed by the Commissioner but there is only an appeal to the High Court direct. It is urged that these provisions still continue to be unreasonable restrictions on the rights of the Mathadipathi and are accordingly ultra vires and unconstitutional. In the case reported in Commr. Hindu Religious Endowments, Madras v. Sri Lakshamindra Thirtha Swamiar, 1954 SC 282   (AIR V 41) (C) the interest of Mathadipathi in the Math has been recognised as property falling within the scope of Art. 19(1) (f) of the Constitution. It was recognised that the ingredients, of office and property, of duties and personal interest, are blended together in the rights of a Mahant and that the Mahant has the right to enjoy the property or the beneficial into rest so long as he is entitled to hold his office. It was recognised that the beneficial interest which the Mahant enjoys is appurtenant to his duties and that as he is in charge of a public institution, reasonable restrictions can always be placed upon his rights in the interests of the public. It was, however, held therein that provisions for the framing of a scheme which by its terms operate by way of unreasonable restriction would be unconstitutional and invalid. It is this principle that was applied in the next decisions of this Court relating to Orissa Maths in 1954 SC 400   (AIR V 41) (B). There the validity of the then provisions of the Act, i. e., of Ss. 38 and 39 of Orissa Act 4 of 1939 as amended in 1953 was adjudged in the following terms. "Section 38 and 39 relate to the framing of a scheme. The scheme can certainly be settled to ensure due administration of the endowed property but the objection seems to be that the Act provides for the framing of a scheme not by a civil Court or under its supervision but by the Commissioner, who is a mere administrative or executive officer. There is also no provision for appeal against his order to the Court. ....... We think that the settling of a scheme in regard to a religious institution by an executive officer without the intervention of any judicial tribunal amounts to an unreasonable restriction upon the right of property of the superior of the religious institution which is blended with his office. Sections 38 and 39 of the Act must, therefore, be held to beis undoubtedly true that from a litigants point of view an appeal to the High Court from the Commissioners order is not the same as, an independent right of suit and an appeal to the higher Courts from the result of that suit.But in order to judge whether the provisions in the present Act operate by way of unreasonable restriction for constitutional purposes what is to be seen is whether the person affected gets a reasonable chance of presenting his entire case before the original tribunal which has to determine judicially the questions raised and whether he has a regular appeal to the ordinarily constituted Court or Courts to correct the errors, if any, of the tribunal of first instance. For that purpose it is relevant to notice that in the present Act, the Commissioner of Endowments has, by virtue of S. 4 thereof, to be a member of the Judicial Service (of the State) not being below the rank of a Subordinate Judge, while under S. 7 of Act 4 of 1939 a Commissioner of Endowments could be a person of either the judicial or the executive service and that even where a member of the judiciary is appointed he may be a person below the rank of a Subordinate Judge.Another important difference has also to be noticed, viz., that while under S. 38 of the previous Act the enquiry has to be conducted "in such manner as may be prescribed" which means as prescribed by the Provincial Government by rules made under the Act and hence changeable by the Government, under the present Act, S. 42(1) (b) specifically enjoins that "the Commissioner shall hold an enquiry in the manner prescribed and so far as may be in accordance with the provisions of the Code of Civil Procedure relating to the trial of suits". It may also be noticed that before the Commissioner starts his enquiry it is expected that the Assistant Commissioner, who, by virtue of S. 5(2), is to be a person holding a judicial office not lower in rank than that of a Munsif, is to make such enquiry as he thinks fit and submit his report. Thus in the initial stage of a framing of the scheme under the provisions of the present Act there is first of all something in the nature of a preliminary enquiry by a judicial officer of the rank of a Munsif and this is followed by a regular and full enquiry before the Commissioner who is of the rank of a Subordinate Judge. The enquiry before the Commissioner is assimilated to and is governed by the provisions relating to the trial of suits by enjoining that, as far as may be, it is to be in accordance with the provisions of the Code of Civil Procedure relating to trial of suits. While, therefore, under the prior Act the enquiry, before the Commissioner might well have been of the nature of an executive enquiry by an executive officer,the enquiry under the present Act is by itself in the nature of a judicial enquiry by judicial officers followed up by a right of regular appeal to the High Court.A scheme framed with reference to such a procedure cannot ipso facto be pronounced to be in the nature of unreasonable restriction on the rights of the Mahant. The legislature might well have though that, instead of making the enquiry before the Commissioner more or less in the nature of a preliminary executive enquiry to be followed up by the affected Mahant by way of a regular suit in the Civil Court, it is much more satisfactory and in the public interests, to impress the enquiry before the Commissioner himself with the stamp of greater seriousness and effectiveness and to assimilate the same to a regular enquiry by the judicial officer according to judicial procedure and then to provide a right of direct appeal to the High Court.6.It has been strongly urged that a mere right to appeal to the High Court would virtually be in the nature of a limited appeal confined to challenge only on certain basic matters and probably limited to questions of law. We can find no warrant for any such apprehension. The right of appeal is given in very wide, and general terms. Obviously the appeal can be both on facts and on law and would relate not merely to the merits of the scheme but also to all basic matters whose determination is implicit in the very framing of a scheme. In our opinion the present provisions cannot be struck down as being in the nature of unreasonable restriction on the rights of theis pointed out that as the result of a scheme being put into operation immediately, the Mahant may be deprived of the effective possession of the Math and hence of the wherewithal to file an appeal within the very short time that is allowed, as also of the resources to conduct the appeal in the High Court or to maintain himself during its pendency which may take years. There is not much force in this connection.In so far as the question for filing of an appeal is concerned, there should be no difficulty since the provisions relating to appeals in form paupers would be applicable and can be availed of if the circumstances call forregard to the suggestion thus put forward, which we accept, we cannot hold that the provision in S. 74 (3) that the operation of the order of the Commissioner framing a scheme is not to be stayed pending the disposal of the appeal, brings about an unreasonable restriction.In this view we think that the incidental provisions above referred to do not in any way detract from the reasonableness of the main provisions in the present Act of 1952 as amended in 1954, relating to the framing of schemes are not open to any of the constitutional objections raised, and are valid.8. The next point that has been urged, depends on the fact that in four of the petitions before us relating to the Maths of Mahiparaksh, Uttaraparswa, Dakshinaparswa and Radhakanta, schemes were in fact framed in the year 1953 under the provisions of Orissa Act 4 of 1939 as amended in 1953. It may be recalled that these provisions were held invalid by the decision of this Court in March, 1954, above referred to. It must therefore be taken that these schemes were void as the law then stood. It is with reference to that situation that the Orissa Legislature by an amendment in 1954 of the 1952 Act introduced S. 79-A into this79-A in terms purports to revive the invalid scheme notwithstanding any judgment, decree or order of any Court which means that though a Court may have pronounced the scheme as void still that is deemed to be alive. It has been suggested that this is directly flouting the decision of this Court and that the legislature has no power to declare as valid and constitutional what was decided by this Court as invalid and unconstitutional. But it is to be observed that the legislature does not purport to do anything of the kind.What it does is not to deem the schemes previously settled as having been validly settled on those very dates, under the then existing law. This of course is beyond legislative competence since the legislature has not the power to override unconstitutionality as such. But what the legislature has purported to do is to take up those very schemes and deem them to have been settled under the provisions of the present Act and thereby to lay them open to any attack available under the present law. Such a provisions is not uncommon in legislative practice, and is enacted in order to avoid the public inconvenience of having to redo what has previously been done. The result of S. 79-A is to treat the schemes framed within the specified period as schemes framed immediately after the commencement of the present Act and to impute thereto, by a fiction compliance with the various procedural and other steps which are requisite under S. 42. We can see no reason for thinking that such a provision is not within the competence of the Legislature.It has been suggested that this is really interfering with the jurisdiction for this Court under Art. 32. But there is no substance in that suggestion. The right of any person to seek remedy under Art. 32 in respect of any violation of his fundamental rights is in no way curtailed or affected by the fact that an actual decision of this Court on an application under Art. 32 is, in effect, nullified by appropriate and competence legislative measures. Indeed, the right has been, in fact successfully invoked on the prior occasion and has again been invoked on the present occasion. If it fails this time it is not because the right and the remedy under Art. 32 have been taken away or affected but because the unconstitutionality has been removed. Section 79-A, therefore, is not open to any objection on the ground of legislativecontention is also without substance. It is true that in the present Act the procedure relating to the scheme has four steps which are as follows :(1) The scheme is to be framed by a Commissioner, who is, by appointment, a judicial officer.(2) The procedure is, as far as may be, the same as that in the trial of suits.(3) There is a preliminary enquiry by the Assistant Commissioner.(4) There is an appeal to the High Court.Out of these four, the substantial item is the last one and that has been specifically provided for under S. 79-A and a period of sixty days from the date of the commencement of the Act has been provided for the right of appeal. There can be no complaint on this score.10. It is true that the schemes under the Act then in operation i. e., during the specified period, might possibly have been framed by (a) an executive officer, as also (b) in pursuance of procedure under the rules pursuance of procedure under the rules framed by the Executive Government which may not approximate to that of a trial of a suit. But this was merely a theoretical possibility. In fact, as appears from the record and, as has been stated to us by the learned Attorney-General on behalf of the State and not disputed on the other side, the Endowment Commissioner during the specified period was a Subordinate Judge of the Orissa Judicial Service. The actual procedure which was in force at the time under the rules as then prescribed was also in fact in consonance with the trial of suits under the Civil Procedure Code. This appears clearly from Rr. 51 to 109 of the Rules framed by the Government of Orissa, an official copy of which has been supplied to us in Court by the learned Attorney-General on behalf of the State. As regards the provision that the enquiry by the Commissioner under the present Act has to be preceded by a preliminary enquiry by an Assistant Commissioner who is of the rank of a Munsif, the argument that the deprivation of this feature by the deeming provision in S. 79-A operates to the disadvantage of the Mahants is not by any means a serious point. It is to be noticed that this is set-off by the fact that schemes under the 1939 Act are framed not by the Commissioner alone but along with one or more Government officers appointed by the Government.We are, therefore, unable to uphold the contention that the deeming provision under S. 79-A which treats the previous schemes as schemes framed under the present Act results in bringing about any substantial disadvantages to the detriment of the Mahants. We accordingly hold that S. 79-A of the present Act is not open to any constitutional objection.11. We are, therefore, clearly of the opinion that Ss. 42(1) (b), 42 (7) and 44 (2) as well as S. 79-A of the present Act are not open to the constitutional objections raised before us.12. It may be mentioned in the petitions before us some other provisions of the present Act have also been challenged as being unconstitutional. But no arguments have been advanced before us in respect thereof. It may also be mentioned that the petitions before us have not raised any questions relating by way of unreasonable restrictions, in the light of the considerations pointed out by this Court in its judgment in 1954 SC 282   (AIR V 41) (C)".Nor does it appear that any appeal as provided in S. 79-A has been filed to the High Court in respect of these cases challenging the validity or the propriety of the various provisions in the scheme or correctness of the decision, express or implied, on the basic facts which are the foundation of the scheme proceedings. We express no opinion on any of thesescheme became final under the original Act of 1939 as it stood before the 1953 amendment. Obviously with reference to the facts of such case, no argument of the kind that has been addressed to us in the other four petitions available.