Case: Sri-La-Sri Subramania Desika Gnanasambandapandarasannadhi Vs. State Of Madras And Another

1. On August 4, 1956, the Governor of Madras issued a notification in exercise of the powers conferred on him by sub-s. (4) of S. 64 ofthe Madras Hindu Religious and Charitable Endowments Act, 1951 (Madras Act XIX of 1951) directing that notification No. 638, dated the 25th May, 1937, relating to Sri Thiyagarajaswami Temple. Tiruvarur, Nagapattinam Taluk, Tanjor District be continued for a period of five years from September 30, 1956. The earlier notification which was thus continued had itself been issued by the respondent State of Madras in exercise of the powers conferred on it by cl. (b) of sub-s. (5) of S. 65A of the Hindu Religious Endowments Act, 1926 (Madras Act II of 1927), declaring that the temple in question and the specific endowments attached thereto shall be subject to the provisions of Chapter VI-A of the said Act. In other words, the earlier notification which brought the temple of Sri Thiyagarajaswami at Tiruvarur under the purview of the earlier Madras Act has been extended by the notification issued on 4th August, 1956 for a further period of five years. By a writ petition filed by the appellant, Sri-la Sri Subramania Desika Gnanasambanda Pandarasannidi. Hereditary Trustee of the Rajan Kattalai of the temple in question, in the High Court of Madras the validity of this latter notification was challenged. The High Court has rejected the pleas raised by the appellant in support of his case that the impugned notification is invalid, and has dismissed the writ petition filed by him. It is against this order that the appellant has come to this Court with a certificate granted by the High Court. The controversy between the parties as it has been presented before us in appeal, really lies within a very narrow compass, but in order to appreciate the points raised for our decision, it is necessary to set out very briefly the background of the present litigation2. In the town of Tiruvarur in Thanjavur District, there is an ancient temple. The Presiding Deity is Sri Thiyagarajaswami. A distinguishing feature of this temple is that apart from an allowance called the Mohini allowance, there is no other property which can be treated as devoted for its general maintenance. A large number of specific endowments called Kattalais with specific reference to special services in the temple, its festivities and several charities in glorification of the principal deity, have, however, been made in respect of this temple. It is said that there are 13 such Kattalais, the important amongst them being Rajan Kattalai, Ulthurai Kattalai, Abisheka Kattalai and Annadanam Kattalai. In respect of these Kattalais, large endowments have been made. According to the appellant, these endowments were made by the Indian Rulers who ruled Thanjavur before the establishment of the British Rule. It appears that the management of each one of these Kattalais is vested in a certain Trustee or Trustees hereditarily. The trusteeship of Rajan Kattalai vests in the head of the Dharamapuram mutt in the Thanjavur district. The Dharamapuram mutt itself has large endowments of lands in Thanjavur and Tirunelveli districts. The head of this mutt is known as Pandarasannadhi and under his management there are about 27 temples. Having regard to the nature of the duties of the head of a mutt of this importance and magnitude, it is not possible for the Pandarasannadhi to supervise all the temples personally, and so Deputies are appointed on his behalf to supervise and look after the management of the various institutions. With regard to the services connected with the Rajan Kattalai in Sri Thiyagarajaswami temple at Thiruvarur, the head of Dharmapuram mutt generally functions through a deputy known as Kattalai Thambiran3. Ordinarily, a Kattalai is a specific endowment in respect of which it would be competent for the founder to prescribe the line of trustees for its management, and so, the property endowed for the performance of the Kattalai in question cannot be held to be transferred in trust to the trustee vesting the legal estate therein in him; such legal estate would vest in the deity itself. Thus, the position of the Kattalai trustee would normally be no more than that of a manager of a Hindu Religious Endowment. It, however, appears that Kattalais which are attached to Sri Thiyagarajaswami temple at Thiruvarur have been treated as constituting a slightly different category by the Madras High Court in Vythilinga Pandara Sannadhi v. Somasundara Mudliar, ILR 17 Mad 199, but with that aspect of the matter, we are not concerned in the present appeal. In practice, a scheme appears to have been evolved that in regard to the various services in the temple in respect of which Kattalais had been endowed, the management of the allotted properties vested in separate trustees and in that sense, all the trustees administering separate Kattalais could be said to constitute a kind of corporation in which the management of the temple properties vested, each one of its members being in charge of particular items of properties the proceeds of which would be utilised or the performance of a specific Kattalai4. In course of time, however, this practice did not work harmoniously and co-ordination between the duties of the various trustees worked unsatisfactorily, because more emphasis came to be placed on the individuality of the Kattalais and that led to anomalies in the actual administration of the said Kattalais. As a result, in 1910, a suit was filed under S. 92 of theCode of Civil Procedure for the settlement of a scheme to manage the affairs of the temple in the Sub-Court at Thanjavur. A scheme was accordingly settled, and when the matter was taken in appeal, the High Court substantially confirmed the said scheme [vide Gyana Sambanda Pandara Sannadhi v. Vaithilinga Mudaliar, 18 Mad LW 247 : (AIR 1924 Mad 168)]. The scheme thus framed governed the management of the temple thereafter.5. It appears that the affairs of the said temple again came up for consideration before the Madras High Court in Ramanatham Chettiar v. Balayee Ammal, 27 Mad LW 32 : (AIR 1928 Mad 61  ). In that case, the High Court rejected the contention of one of the Kattalai trustees that subject to the performance of services, the endowments in question had to be treated as his property; the view taken by the High Court on this occasion was that all the Kattalais were appendages of the temple; though each Kattalaidar was a separate trustee, there was no question of private ownership6. In the year 1931, there was another suit under S. 92 of the Code on the file of the District Court. East Thanjavur for the modification of the scheme already framed. It was urged that certain defects in the scheme had been noticed in the actual working, and so, it was necessary to make some modifications. Accordingly, some modifications were made7. Meanwhile, the Madras Legislature passed the Madras Hindu Religious Endowments Act, 1927. The object of this Act was to provide for the proper administration and governance of certain Hindu Religious Endowments. The Act contemplated the supervision of these endowments through a statutory body called the Madras Hindu Religious Endowments Board. It divided the temples into "excepted and non-excepted temples". It also provided for the framing of a scheme for the management of the temples. This Act was amended by Madras Act IX of 1937. The result of the amendment was that Chapter VI-A was added to the Act of 1927. The provisions of this Chapter laid down that notwithstanding that a temple or specific endowment attached to a temple was governed by a scheme previously framed by the Board or settled by a Court, the Board if it were satisfied that the temple or endowment was being mismanaged and that in the interests of the administration of the temple or endowment it was necessary to take proceedings under the said Chapter, might "notify" the temple or endowment, and on the publication of such notification, the administration of the temple or endowment would go under the control of the Board notwithstanding the scheme which might have been framed already. On taking management of a notified temple or endowment, the Board was authorised to appoint an Executive Officer and define his duties. In consequence, such Executive Officer would virtually displace the trustee and would function under the control of the Endowment Board. The result of the notification in substance would be that the previously existing scheme would be suspended, and the management would vest in the Board8. Soon after this Act was passed, proceedings were commenced by the Board for the purpose of notifying the temple with which we are concerned in the present appeal, and the Kattalais attached thereto. The Trustees of the various Kattalais naturally opposed this step, but their objections were overruled, and on May 25, 1937, a notification. was issued. To this notification we have already referred. In pursuance of this notification, an Executive Officer was appointed by the Board on July 12, 1937. On July 30, 1937, the Board defined the powers of the Executive Officer and directed him to take charge and be in possession of the temple and the various Kattalais attached thereto. As a result of this order, the Executive Officer began to exercise all the powers and discharge all the functions of a trustee of a non-excepted temple, and that left very little powers in the hands of the trustees of the several Kattalais9. The Pandarasannadhi of the Dharmapuram Mutt who was then the hereditary Trustee of the Rajan Kattalai instituted C.S. No. 20 of 1938 in the Madras High Court for a declaration that the said notification was illegal and for setting aside the orders issued by the Board in pursuance of the said notification. It appears that the suit did not proceed to a trial, because the parties entered into a compromise. In substance, as a result of the compromise, the notification was maintained, but the possession of the Kattalai properties was restored to the Trustees who was to manage the same by a staff under his control, and had to keep accounts. Certain other provisions were made to safeguard the efficient management of the said trust, and the overall control and supervision of the Executive Officer was maintained. One of the clauses of the compromise, clause (k) expressly reserved to the Board liberty to re-define the powers and duties as specified above in case the trustee commits any wilful breach of the above terms and conditions or is guilty of wilful neglect of the duties specified above, provided that the Board shall not do so except on notice to the trustee and after giving reasonable opportunity to him to be heard in his defence. This compromise decree was passed on August 1, 1940, and since then, the administration of the Kattalai in question has been conducted in accordance with the terms of this decree10. After the Constitution came into force on January 26, 1950, the Hindu Religious Endowments Act of 1927 was repealed and in its place Act XIX was substituted. This latter Act came into force on September 30, 1951. Section 5 of this Act repealed the earlier Act of 1927. The Chapter relating to notification of temples and endowments was numbered as Chapter VI in the new Act. Section 64 of this new Act provided for the notification of a temple or a religious institution, and sub-s. (4) laid down that every notification published under this Section shall remain in force for a period of five years from the date of its publication; but the Government may at any time on an application made to them cancel the notification. This Section had made provision for the notification of religious institutions after this new Act came into force. Section 103(c) dealt with cases where notifications had been made under the previous enactment. That Section provided that the notification published under S. 65A, sub-s. (3) or sub-s. (5) of the said Act and in force immediately before the commencement of the new Act would be deemed to be a notification published under S. 64 and would be in force for five years from the date of the commencement of the new Act (No. XIX of 1951)11. In 1956, another Amending Act (No. IX of 1958) was passed. Section 2 of this amending Act substituted a new sub-section in the place of S. 64(4). Under that provision, every notification published or deemed to be published under that Section shall remain in force for a period of five years, but it may by notification be cancelled at any time or continued from time to time for a further period or periods not exceeding five years at a time as the Government may by notification in each case think fit to direct. As a consequence, S. 103(c) was also amended, and the words "and shall be in force for five years from the date of the commencement of this Act" were omitted. The result of this amendment was that the notification issued or deemed to be issued under the relevant provisions of the new Act would remain in force for a period of five years; it can be cancelled even before the said period expired, it can be continued after the expiry of the said period from time to time for such further period or periods as the Government may deem fit. We have already seen that the impugned notification has been issued under Section 64(4) of Act XIX of 1951. That, broadly stated, is the background of the present dispute between the appellant and the respondent State of Madras12. Two principal contentions were urged before the High Court by the appellant in support of his plea that the impugned notification is invalid. It was argued that the trusteeship  of the Rajan Kattalai being hereditary in the head of the Dharampuram Mutt, is a right to property under Art. 19(1)(f) of the Constitution, and since S. 64 of the Act empowers the respondent State to take away that right to property in an arbitrary and capricious manner, that provision is constitutionally invalid. The second ground which was urged by the appellant was that the notification was issued without giving an opportunity to the appellant to show cause why the earlier notification should not be extended, and that made the notification invalid. The High Court has rejected the first contention, and we are really not called upon to consider that finding of the High Court in the present appeal, because the arguments urged before us covered a much narrower ground.

Reasoning:
17. That takes us to the consideration of the question as to whether the two reasons given by the High Court in support of this decision are valid.The first reason, as we have already indicated, is that the High Court thought that the plea in question had not been raised by the appellant in his writ petition. This reason is no doubt, technically right in the sense that this plea was not mentioned in the first affidavit filed by the appellant in support of his petition; but in the affidavit-in-rejoinder filed by the appellant this plea has been expressly taken. This is not disputed by Mr. Chetty, and so, when the matter was argued before the High Court, the respondents had full notice of the fact that one of the grounds on which the appellant challenged the validity of the impugned Order was that he had not been given a chance to show cause why the said notification should not be issued. We are, therefore, satisfied that the High Court was in error in assuming that the ground in question had not been taken at any stage by the appellant before the matter was argued before the High Court18. The second reason given by the High Court appears to be plainly erroneous. In assuming that the impugned Order would come to an end on September 30, 1961, the High Court appears to have ignored the fact that before it delivered its judgment, a new Act had come into force (Madras Act XXII Of 1959). This Act came into operation on January 1, 1960. Section 72 (7) of this Act provides that Any notification published under sub-s. (1) or sub-s. (8) of S. 64 of Act XIX of 1951 before the commencement of this Act shall be as valid as if such notification had been published under this Act. This provision has again been subsequently amended by Act XL of 1961, and the amended provision is retrospectively brought into operation from January 1, 1960. We do not propose to consider in this appeal the effect of these amendments, because it is enough for our purpose to state that as a result of the subsequent Act which had already come into force on the date when the High Court delivered its judgment, it is obvious that the impugned notification would not automatically come to an end on September 30, 1961. This position is not disputed by Mr. Chetty and appears to be plain; so that the main reason which weighed with the High Court in not issuing a writ in favour of the appellant that the impugned notification would remain in operation for a very short period after it delivered its judgment, is found to be erroneous; and the impugned notification would continue in operation without the appellant getting an opportunity to show cause why it should not continue to be in operation. We are, therefore, satisfied that the High Court should have granted the prayer made by the appellant for the issue of an appropriate writ cancelling the impugned notification. Though the impugned notification has been issued in 1956 for five years, its life gets statutorily extended, and the only way in which the appellant would be able to show cause why the said notification should not be extended in respect of his Kattalai is to quash the said notification.