TMI Blog1956 (1) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... Provincial Legislature with the management of Hindu religious endowments in Orissa was by the Orissa Hindu Religious Endowments Act, 1939 (Orissa Act IV of 1939) which came into operation on the 31st August, 1939. This was modelled on a similar Act operating in the Province of Madras at thetime. ThevalidityoftheActasawholeasalso, of certain provisions thereof we're 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 as plaintiffs (including three of the present petitioners, viz. Mahants of Mahiparakash Math, Dakshinaparswa Math and Radhakanta Math) and also in a representative capacity under Order I, rule 8 of the Civil Procedure Code. (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 the 13th September, 1949, which is reported in Mahant Sri Gadadhar Ramanuj Das v. The Province of Orissa (I.L.R. [19491 Cuttack 656). An appeal was filed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se schemes were brought into operation and the administration of some of these Matbs 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 article 226 before the High Court of Orissa challenging the alidity of the schemes. Those applications were dismissed by the High Court on the 17th February, 1954. Meanwhile the Mahant of Dakshinaparswa Math who was a petitioner in the High Court and also before filed along with another Mahant, a petition under icle 32 of the Constitution to this Court on the d December, 1953, challenging the Act then in force as being in violation of their fundamental rights. This was Petition No. 405 of 1953. This petition as 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 the 16th March, 1954, and is reported in Mahant Sri Jagannath Ramanuj Das v. The State of Orissa(2). As a result thereof, sections 38 and 39 of Orissa Act IV of 1939 as amended in 1953, under which the schemes w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the kind with which we are concerned in these petitions. There can be no doubt that the two sections apply to these Maths. The phrase religious institution occurring in section 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 custom and a hereditary trustee is a trustee of an institution succession to whose office devolves by custom or is 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 section 42 (1) (b) applicable. To appreciate the ground of attack it is necessary to trace the changes in the provisions relating to the framing of schemes for such institutions in the successive legislative measures. In the Act as it, stood in 1939 the provisions in this behalf are sections 38, 39 and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner 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 sections 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 sections 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 manners hereinafter provided- (a) (b) in the case of a religious institution presided over or managed by a hereditary trustee, the Assistant Commissioner shall make such en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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 decision of this Court relating to Orissa Maths in Mahant Sri Jagannath Ramanuj Das v. The State of Orissa [1954] S.C.R. 1046. There, the validity of the then provisions of the Act, i.e., of sections 38 and 39 of (1) (1954] S.C.R. 1005. Orissa Act IV of 1939 as amended in 1953 was adjudged in the following terms: Sections 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by rules made under the Act and hence changeable by the Government, under the present Act, section 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 section 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 the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 contention. In so far as the question of filing of an appeal is concerned, there should be no difficulty since the provisions relating to appeals in forma pauperis would be applicable and can be availed of if the circumstances call for it. In so far as any situation may arise which may call for financial facilities for the conducting of the appeal or for interim maintenance, the learned Attorney-General suggests that the appellate Court would have inherent power and discretion to give appropriate directions for supply of funds out of the trust estate and that in any view, such power and discretion have to be implied in the provision for an appeal so that the said right of appeal may not become illusory. Having regard to the suggestion thus put forward, which we accept, we cannot hold that the provision in section 74(3) that the operation of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of the 1952 Act, i.e., between 16th May, 1953 to 31st December, 1954, (hereinafter referred to as the specified period). This was exactly the period within which the amendment of 1939 Act made in 1953 was in force, abolishing the right of suit and making the scheme as determined by the Commissioner final and conclusive. Section 79-A in terms purports to revive the invalid scheme notwith-standing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner. (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 section 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. 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 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 beenstated to us by the learned Attorney-General on behalf of the State and not disputed on the other side, the Endo wment 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 rules 51 to 109 of the Rules framed by the Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial difference. In that case the original scheme was one framed under sections 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 the 22nd May, 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 the 12th May, 1947, formally making the above declarations. It was on the basis of this that, later on, a scheme was framed on the 22nd May, 1948. It does not appear that the Mahant filed any suit which was then available to him. But it is stated to us by the learned Advocate appearing for the petitioner that an application was filed in the High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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