Sri Jagadguru Kari Basavarajendraswami
of Gavimutt Vs. Commissioner of Hindu Religious Charitable Endowments  INSC
160 (8 May 1964)
08/05/1964 GAJENDRAGADKAR, P.B. (CJ)
GAJENDRAGADKAR, P.B. (CJ) HIDAYATULLAH, M.
DAYAL, RAGHUBAR SIKRI, S.M.
CITATION: 1965 AIR 502 1964 SCR (8) 252
RF 1970 SC 470 (29) RF 1975 SC1069 (23) R
1975 SC2299 (633)
Constitution of India, Art.
19(1)(f)-Mutt-Framing of schemeRepeal of old Act by new Act-Promulgation of
Constitution in the meantime--Notice on Matadhipati to hand over possession to
Executive Officer-Validity-Scheme, it must be tested by fundamental rights
conferred by the Constitution-Madras Hindu Religious and Charitable Endowments
Act, 1951 (Mad.
XIX of 1951), ss. 103(d), 62(3)(a)(Mad. 11 of
1923), s. 63.
The appellant, who was a Matadhipati, moved
the High Courtfor a writ quashing the notice served on him in 1952 by the
Executive Officer to band ever to the latter the administration and the
properties 253 of the Mutt in enforcement of a scheme framed in 1939 under s.
63 of the Madras Act 11 of 1927. The predecessor of the appellant had filed a
suit in the District Judge's Court to set aside that scheme. The suit failed
and the scheme was confirmed subject to minor modifications. In 1951 the Madras
Hindu Religious and Charitable Endowments Act, 1951, repealed and replaced the
Madras Act 11 of 1927. It was urged on behalf of the appellant in the High
Court that the scheme contravened his fundamental rights guaranteed by the
Constitution. The single Judge who heard the matter found in his favour and
held that the scheme contravened Art.
19(1)(f) of the Constitution. On appeal by
the respondent, the Division Bench reversed the decision of the Single Judge.
The High Court granted certificate to the appellant to appeal to this Court. It
was contended that although the scheme was valid as framed tinder the earlier
Act, it incumbent under s. 103(d) of the Act of 1951 that the validity of the
all the provisions of the scheme must be tested in the light of its provisions.
Held: Section 103(d) of the Madras Hindu
Religious and Charitable Endowments Act, 1951, properly construed, merely meant
that earlier schemes framed under Madras Act It of 1927 would be operative as
though they were framed under the Act of 1951. It was not intended by the
section that those schemes must be examined and reframed in the light of the
relevant provisions of the Act. Section 62(3)(a) of the Act which provided for
the modification of such schemes made this amply clear. Unless the schemes
could be modified under that section they must be deemed to have been validly
made under the Act of 1951 and enforced as such.
East End Dwellings Co. Ltd. v. Finsbury
Borough Council,  A.C. 109, considered.
Although the scheme in question had not been
completely implemented before the Constitution, that was no ground for
examining its provision in the light of Art. 19 of the Constitution.
The fundamental rights conferred by the
Constitution are not retrospective in operation and the observation made by
this Court in Seth Shanti Sarup v. Union of India, are not applicable to the
Seth Shanti Sarup v. Union of India, A.I.R.
1955 S.C. 624, explained and distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 745 of 1963.
Appeal from the judgment and order dated
February 6, 1961 of the Andhra Pradesh High Court in Writ Appeal No. 71 of
A. V. Viswanatha Sastri, K. Rajendra
Chaudhuri and K. R. Chaudhuri, for the appellant.
254 R.Ganapathy Iyer and B. R. G. K. A char,
for the respondents.
May 8, 1964. The Judgment of the Court was
delivered by GAJENDRAGADKAR, C. J.The appellant Shri Jagadguru Kari Basava
Rajendraswami of Gavi Mutt is the Matadhipati of Sri Gavi Mutt which is a
religious institution dedicated to the propagation and promotion of the tenets
of the Veera Saiva cult of Hinduism. This Mutt is situated at Uravakonda in the
district of Anantapur. It appears that on the 6th September, 1939, the Board of
Hindu Religious Endowments constituted under the Madras Act 11 of 1927
(hereinafter called 'the earlier Act') framed a scheme under s. 63 of the said
Act for the proper administration of the said Mutt and its endowments. The
predecessor-in-office of the appellant then filed suit No. 21 of 1939 on the
file of the District Judge, Anantapur for getting the said scheme set aside.
His suit substantially failed, because the District Court was persuaded to make
only a few minor modifications in the scheme subject to which the scheme was confirmed.
That decision was taken in appeal by the predecessor of the appellant to the
High Court of Madras (A.S. No. 269 of 1945). During the pendency of the said
appeal, the appellant's predecessor died, and the appellant then brought
himself on the record as the legal representative of his deceased predecessor.
Ultimately, the appeal was withdrawn and, therefore, dismissed.
Though a scheme had been formulated by the
Board under s. 63 of the said Act, apparently no effective step was taken to
take over the actual management of the Mutt and its endowments. The said
management continued as before and the fact that an Executive Officer had been
appointed under the scheme made no difference to the actual administration of
the Mutt. It was on the 5th April, 1952, that the appellant was served with a
memorandum asking him to hand over the charge of all the properties of the Mutt
to the Executive Officer. A notice issued by the Executive Officer followed on
the 16th April, 1952 by which the ippellant was informed that the Executive 255
Officer would take over possession. Meanwhile, what is known as the Sirur Mutt
case was decided by the Madras High Court and the appellant felt justified in
refusing to hand over possession to the Executive Officer on the ground that
the scheme under which possession was sought to be taken over from him was
invalid inasmuch as it contravened the appellant's fundamental rights
guaranteed by the Constitution which had come into force from the 26th January,
In 1951, the Madras Hindu Religious and
Charitable Endowments Act XIX of 1951 (hereinafter called 'the latter Act')
repealed and replaced the earlier Act. The appellant moved the Madras High
Court on the 28th April, 1952, by his writ petition and prayed for an
appropriate writ quashing the notice served on him by the Executive Officer
threatening to take over the administration of the Mutt and its properties
under the scheme. This petition was heard by a single Judge of the said High
Court and was allowed. The learned Judge took the view that some provisions of
the Scheme contravened the appellant's fundamental rights under Art. 1 9 (1 )
(f ), and so, it could not be enforced. It was no doubt urged before the
learned Judge that the appellant's writ petition should not be entertained
because he had a definite adequate alternative remedy under the latter Act, but
this plea was rejected by the learned Judge with the observation that where the
fundamental right is clearly infringed, it is the duty of the Court to
interfere in favour of the citizen, unless there are reasons of policy which
make it inexpedient to do so. Accordingly, the learned Judge directed that the
scheme should be quashed.
He, however, took the precaution to make the
observation that his order did not mean that the Government was not free to
make a scheme in consonance with the Constitutional rights of the Matadhipati.
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 right 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 when it was framed was valid, the appellate Bench reversed
the decision of the single Judge, allowed the respondent's 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.
Before dealing with the points which have
been raised before us by Mr. Sastri on behalf of the appellant, we may briefly
indicate the nature of the scheme which has been framed under the relevant
provisions of the earlier Act. This scheme opens with the statement that the
Board was satisfied that in the interests of the proper administration of the
Mutt and all the endowments, movable and immovable belonging thereto, a scheme
should be settled, and so, the Board, after consulting the Matadhipati of the
Mutt and other persons having interest therein, proceeded to frame the scheme.
It was intended that the scheme should come into force on the 6th September, 1939,
when it was framed It appears that either because the Executive Officer did no,
take effective steps to implement the scheme, or because the predecessor of the
appellant filed a suit challenging the scheme, the scheme in fact has not been
implemented till today. When the notice was served on the appellant in 1952 and
it looked as if the Executive Officer would take over the administration of the
Mutt and its properties, the present writ proceedings commenced and throughout
the protracted period occupied by these proceedings. the status quo has
257 The scheme consists of 15 clauses and, in
substance, it entrusts the administration of the Mutt and all its endowments in
the hereditary trustee and two non-hereditary trustees appointed by the Board.
These latter are liable to be removed by the Board for good and sufficient
cause and the Board's order in that behalf has to be final. The Board is
authorised to appoint an Executive Officer for the on a salary of Rs. 60/per
month. Such Executive is required to furnish security in the sum of Rs. 5001the
satisfaction of the Board. He has to be in charge of the day to day
administration of the Mutt and he has to be answerable to the trustees. The
trustees are required to meet once, a month in the premises of the Mutt for
discharging their duties. They are given the power to inspect the accounts
maintained by the Executive Officerand generally ,supervise his work. The Board
is also given the power to issue directions from time to time regulating the
internal management of the Mutt. It would thus be seen that though the scheme
was framed in 1939, in essential features it is similar to the pattern of
schemes which have been subsequently introduced either by legislation or by
judicial decisions in respect of the management of public charitable
institutions like the present Mutt, Mr. Sastri does not dispute the fact that
the relevant provisions of the earlier Act as well as the scheme framed under
them were valid at the relevant time. He, however, argues that the earlier Act
has been revealed by the latter Act XIX of 1951, and according to him, it is
necessary to consider whether the present scheme is consistent with the
appropriate and relevant provisions of this latter Act.
This argument is based on the provisions
contained in s. 103(d) of the latter Act. This section provides that
notwithstanding the repeal of the Madras Hindu Religious Endowments Act No. 11
of 1927, all schemes settled or modified by a Court of law under the said Act
or under s. 92 of the Code of Civil Procedure, 1908, shall be deemed to have
been settled or modified by the Court under this Act and shall have effect
accordingly. The argument is that though the present scheme was framed under
the provisions of the earlier Act. it must now be deemed to be a scheme which
51 S.C.-17 258 has been settled or modified by the Court under this latter Act,
and so, it is necessary to enquire whether all the provisions of the scheme are
consistent with the material provisions of the latter Act. If it is found that
any of the said provisions are inconsistent with the relevant provisions of the
latter Act, they must be modified so as to make them consistent with the said
In support of this argument, Mr. Sastri has
invited our attention to the observations made by Lord Asquith of Bishopstone
in East End Dwellings Co. Ltd. v. Finsbury Borough Council(1) that "if you
are bidden to treat an imaginary state of affairs as real, you must surely,
unless prohibited from doing so, also imagine as real the consequences and
incidents which, if the putative state of affairs bad in fact existed, must
inevitably have flowed from or accompanied it." Basing himself on these
observations, Mr. Sastri has urged that if the deeming provision prescribed by
s. 103 (d) is given its full effect, there would be no scope for refusing to
apply the test for which he contends.
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 &a 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 schemes once again
by reference to the relevant provisions of this latter Act and re-frame 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 rules made, notifications or certificates issued, orders passed, decisions
made, proceedings or action taken, schemes 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, massed, taken, settled or done by (1) A.C. 109 at p. 132.
259 the appropriate authority under the
corresponding provisions of this latter Act and shall, subject to the
provisions of clause (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 provisions 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) &
(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
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 consistency or otherwise
of the schemes to which s. 103(d) applies, is treated 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
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 be continued as though they were settled or modified
under the latter Act.
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 an 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 tinder the provisions of the latter Act 260 and thus continued,
modifications in it can be effected by adopting the procedure prescribed by s.
62(3). It) 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. Sastri's argument that the consistency of the be examined
in writ proceedings, cannot be entertainment In fact, unless modifications are
made in the scheme under. 62(3), the scheme as a whole, will be deemed to been
made under the latter Act and will be deemed to have valid scheme. That clearly
is the purpose of s.we do not think we are called upon to consider the further
contentions raised by Mr.
Sastri that came of the clause in the scheme
are inconsistent with the provisions of the later Act.
There is one more point to which reference
must be made before we part with this appeal. Mr. Sastri contended that though
the scheme may have been valid when it was framed, since 'it was not actually
enforced before the 26th January, 1950, it is-, open to the appellant to
challenge the validity of the scheme oil the ground that it deprives him of his
fundamental right under Art. 19(1)(f) and as such, invalid. Mr. Sastri concedes
that the fundamental rights guaranteed by the Constitution, are not
retrospective in operation; but that, he say,-,, 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 Art. 19 (1) (f).
In support of this argument, Mr. Sastri has
relied on certain observations made by Mukherjea J. in the case of R.S. Seth Shanti
Sarup v. Union of India and Ors. (1). In that case, a partnership firm known as
Lallamal Hardeodas Cotton Spinning Mill Company of which the petitioner was, a
partner. used to carry on the business of production and supply of cotton yam.
When it was found that the Mill (1) A.I.R. 1955 S.C. 624.
261 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 its .authority under s. 3(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
under 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 a direction to him to run. the said undertaking to the
exclusion of all the other Farmers. 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
In appreciating the effect of this decision,
it is necessary to bear 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/he 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 petitioner's right was made in 1949 when the Constitutional
guarantee was not available to him.
In. repelling this contention, Mukherjea, 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 be held
to have come into conflict with the fundamental. rights of the petitioner as
soon as tile 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. Sastri's
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 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. Sastri's argument were right, all such schemes, though implemented and
enforced, may still be open to challenge on the ground that they contravened
the Matadhipati's 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 further damental rights are not retrospective in their
operation. The observations on which Mr. Sastri relies must be read in "he
light of the relevant fact to which we have just referred. The deprivation of
the petitioner's property rights was brought about by invalid orders and it was
in respect of such invalid 263 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
The result is the appeal fails and is
dismissed with costs.