Sri-La-Sri Subramania Desika
Gnanasambanda Pandarasannadhi Vs. State of Madras & ANR  INSC 29 (10
10/02/1965 GAJENDRAGADKAR, P.B. (CJ)
GAJENDRAGADKAR, P.B. (CJ) HIDAYATULLAH, M.
CITATION: 1965 AIR 1578 1965 SCR (3) 17
Madras Hindu Religious and Charitable
Endowments Act,1951, (Mad. Act 19 of 1951), s. 64(4),--Order under whether
quasi- judicial--Reasonable opportunity, whether necessary.
By a notification issued in 1937 the
respondent State of Madras had made Ch. VI-A of the Hindu Religious Endowments
Act, 1926, applicable to the Thiyagarajaswami temple at Tiruvarur. In 1956 the
aforesaid notification was extended for a period of five years beginning on
September 30, 1956.
This was done in exercise of powers under s.
64(4) of the Madras Hindu Religious and Charitable Endowments Act, 1951.
The appellant challenged the issue of the
notification under s. 64(4) in a writ petition before the High Court. At the
hearing it was urged that the impugned notification was invalid as it had been
passed without giving a reasonable opportunity to the appellant to show cause
against it. The High Court while accepting this contention, nevertheless
refused to issue. the writ prayed for because: (1) the said plea had not been
taken in the writ petition and (2) the period for which the notification had
been extended was shortly due to expire. The appellant came to the Supreme
Court with certificate of fitness.
It was contended on behalf of the appellant
that the two reasons given by the High Court for not issuing a writ were wrong.
The respondent State on the other hand contended that no quasi-judicial enquiry
was necessary for extending an existing notification under s. 64(4) although
such an enquiry was necessary before issuing a notification for the first time
under s. 64(3).
HELD: (i)' Whether for issuing a notification
under 64(3) or for extending an existing notification under s.
64(4) the process of decision is the same. In
either case the Government had to satisfy itself whether supervision by the
Executive Officer under the notification is required for public good. The
Government cannot legitimately and satisfactorily consider the question as to
whether the notification should be cancelled without hearing the party asking
for cancellation; nor can it legitimately and reasonably decide to extend the
notification without hearing the trustee. Circumstances could arise after the
issue of the first notification which would help the Trustee to claim that the notification
should either be cancelled or should not be extended. The nature of the order
which can be passed under s. 64(4) and its effect on the rights of the Trustee
are exactly similar to the order which can be passed under s. 64(3). [25 A-E]
The High Court was therefore right in holding that it was obligatory on the
respondent State as a matter of natural justice to give, notice to the
appellant before the impugned notication was passed by it. [25E] Shri Radeshyam
Khare & Ant. v. State of Madhya Pradesh and Ors.  S.C.R. 1440,
18 (ii) Although the plea of denial of
natural justice had not been taken by the appellant in his writ petition, it
had been taken in the rejoinder, and the respondent thereafter had full notice
of the said plea. Therefore the first reason given by the High Court for
refusing the writ was wrong.
[25G-H] (ii) The High Court ignored the fact
that before it delivered its judgment a new Act had come into force, namely,
Madras Act XXII of 1959, whereby the life of the impugned notification had been
extended. Therefore the second 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,
was also wrong.
CIVIL APPELLATE JURISDICTION: CIVIl. APPEAL
No. 560 or 1964.
Appeal from the judgment and order dated
August 11, 1961 of the Madras High Court in Writ Petition No. 295, of 1958.
A.V. Viswanatha Sastri. R. Thiagarajan for R.
Ganapathy lyer, for the petitioner.
A. Ranganadham Chetty and A.V. Rangam, for
the respon- dents.
The Judgment of the Court was delivered by
Gajendragadkar,C.J. On August 4, 1956, the Governor of Madras issued a
notification in exercise of the powers conferred on him by sub-section (4) of
s. 64 of the 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, Nagapattanam 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 clause
(b) of sub-section (5) of s.65A of the Hindu Religious Endowments Act, 1926
(Madras Act 1I 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 Gnana Sambanda Pandarasannadhi, 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
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 litigation.
19 In the town of Tiruvarur in Thanjavur
Dist. there is an ancient temple. The Presiding Deity is Sri Thyagarajaswami.
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 Dharmapuram mutt in the Thanjavur district. The Dharmapuram 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 Thyagarajaswami
temple at Thiruvarur, the head of Dharmapuram mutt generally functions through
a deputy known as Kattalai Thambiran.
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
Thyagarajaswami temple at Thiruvarur have been treated as constituting a
slightly different category by the Madras High Court in Vythilinga Pandara
Sannadhi v. Somasundara Mudaliar(1) 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
(1) I.L.R. 17 Mad. 199.
20 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 for the performance of a
In course, of time, however, this practice
did not work harmoniously and coordination 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 the Code 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 Gnana Sambanda v. Vaithilinga
Mudaliar). (1) The scheme thus framed governed the management of the temple
It appears that the affairs of the said
temple again came up for consideration before the Madras High Court in
Ramanathan Chettiar v. Balayee Ammal(2). 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 ownership.
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
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 (1)  18 L.W. 247. (2)  27 L.W.
21 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 Board.
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 over-ruled, 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 Dowers 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 Kattalais.
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 Trustee 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 jn accordance with the terms of this
22 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 of 1951 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 trader 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
In 1956, another Amending Act (No. IX of
1956) 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, or 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
s.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 Madras.
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 Dharmapuram Mutt. is a right of
property under Art. 19(i)(f) of the Constitution, and since s.64 of the Act
empowers the respondent State to take away that right of 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 23 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. In regard to the
second contention raised by the appellant. the High Court has found in favour
of the appellant that the proceedings authorised to be taken under s.64(4) are
in the nature of quasi-judicial proceedings.
and the order which can be passed under the
said provision is a quasijudicial order; and so, the High Court conceded that
before making such an order, it was necessary that the appellant should have
been given an opportunity to be heard, for that is the requirement of natural
justice; but the High Court thought that this specific point had not been taken
by the appellant in his writ petition; that is why it was not inclined to allow
it. The High Court refused to uphold the said point for the other reason that
the impugned notification would soon expire on September 30, 1961 and the
Government would then have to consider whether it should be renewed or not. and
the High Court thought that on that occasion, the Government would certainly
hear the appellant before making up its mind on that issue. The judgment of the
High Court was delivered on August 11. 1961, and since the High Court thought
that the impugned order can last only for a short period thereafter, it would
serve no purpose to issue a writ quashing the said order on the ground that the
principles of natural justice had not been complied with before passing it. Mr.
Viswanatha Sastri for the appellant contends that both the grounds given by the
High Court in support of its refusal to issue a writ are plainly erroneous, and
were satisfied that Mr. Sastri is right.
Before dealing with these grounds, however,
it is necessary to consider the argument urged by Mr. Raganathan Chetty on
behalf of the respondent State that the High Court was in error in holding that
the Order which has been passed under s.64(4) is a quasi-judicial order and can
be legitimately passed only after complying with the principles of natural
justice. He argues that though the proceedings contemplated by s.63 and
s.64(1), (2) and (3) are quasi- judicial proceedings. the position in regard to
the Order which can be passed under s.64(4) is entirely different. He concedes
that in making the first order notifying an institution under s.64(3).
principles of natural justice have to be complied with: in fact. express
provisions have been made in that behalf, but he argues that the said
principles do not apply where a notification validly issued under s.64(3) has
merely to be cancelled or extended under 64(4).
Chapter VI of Act XIX of 1951 which consists
of sections 53 to 69, deals with the notification of religious institutions.
Secion 63(1) in terms requires the issue of notice to show cause why a specific
institution should not be notified. Sub-section (2) requires 24 that the said
notice shell state the reasons for the action proposed, and specify a
reasonable time, not being less than one month from the date of the issue of
the notice, for showing such cause. Subsection (3) allows objections to be
filed by the trustee; and sub-s.(4) requires that such objections shall be in
writing and shall reach the Commissioner before the period specified. Having
provided for the issue of a notice and for objections to be filed by the
trustee, s.64 deals with the consideration of the objections, if any, and notification
of institution. S.64(2) requires an enquiry to be held by the Commissioner at
which the validity of the objections would have t9 be examined.
Section 64(3) authorises the Commissioner to
make, a report to the Government that in his opinion, the institution should be
notified. Thereupon, the Government can issue the notification in question.
Thus, it is plain that the issue of a notification has to be preceded by an
enquiry and the trustee in question is entitled to urge his objections against
issue of such a notification; and so, there can be no doubt that these
proceedings are quasi-judicial, and if a notification is issued under s.64(3)
without complying with the requirements of the provisions of s.63 and s.64(1)
and (2), it would be invalid.
Mr. Cherry. however, contends that the
position under s.64(4) is entirely different. We have already quoted this
provision. According to Mr. Cherry, the decision as to whether a notification
should be cancelled before the period of five years is over, or continued from
time to time, is a purely administrative decision. The Government is already in
possession of the material relevant for the purpose of deciding the question.
This material has been placed before the Government at time of the enquiry
which is held by the Commissioner under s.64(2) before the initial notification
is issued, and all that the Government has to do on subsequent occasions is to
consider whether the said notification should be cancelled or continued. Such a
decision needs no further enquiry and cannot be characterised as
quasi-judicial. That is how Mr. Cherry supports the validity of the impugned
notification, though it has been issued without giving notice to the appellant.
In support of this contention, he has relied
upon the decision of this Court in Shri Radeshyam Khare & Anr. v. The State
of Madhya Pradesh and Others. (1) In that case, it was held that ss. 53A and 57
of the C.P. and Berar Municipalities Act, 1922, differed materially in their
scope and effect, and that the nature of the orders which can be passed under
the two respective sections was not the same.
That is why this Court found that whereas in
taking action under s.53A the State Government was required to act judicially,
the same could not be said to be true about s.57. We' do not see how this
decision can afford any assistance to Mr. Chetty in support of his argument
that s.64(4) is entirely different (1) S.C.R. 1440.
25 in character from s.64(3). It is plain
that just as while acting under s.64(3) the Government has ultimately to
consider whether a case has been made out for the issue of a notification, so
while acting under s.64(4), Government has to consider whether a case has been
made out for cancelling the notification or for extending it. and on each occasion,
where a decision has to be taken under s.64(4), the process of reaching the
decision is exactly similar to the process in reaching a decision under
All relevant facts in regard to the
management of the endowment must be taken into account, and the question to be
considered on each occasion would be whether or not supervision by the
Executive Officer under the notification is required in the interests of public
good. It is difficult to see how the Government can legitimately and
satisfactorily consider the question as to whether the notification should be
cancelled, unless it hears the party asking for such cancellation. Similarly,
it is difficult to understand how Government can legitimately and reasonably
decide to extend-the notification, unless it gives an opportunity to the
Trustee to show cause why it should not be continued. One can imagine several
circumstances which may arise after the issue of the first notification and
which would help the Trustee to claim that the notification should either be
cancelled or should not be extended. The nature of the order which can be
passed under s.64(4) and its effect on the rights of the trustee are exactly
similar to the order which can be passed under s.64(3). We are.
therefore, satisfied that the High Court was
right in holding that it was obligatory on the respondent State as a matter of
natural justice to give notire to the appellant before the impugned
notification was passed by it.
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 Court.
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 26 new Act had come into force
(Madras Act XXII of 1959). This Act came into operation on January I, 1960.
Section 72(7) of this Act provides that any notification published under
sub-s.(1) or sub-s.(3) of s. 64 of Act XIX of 1951 before the commencement this
Act shall be as valid as if such notification had been published under this
Act. This provision has again been sub sequently 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.
In the result, we allow the appeal, set aside
the order passed by the High Court, and direct that an appropriate writ or
order be issued quashing the notification issued by the respondent State on
August 4, 1956. The appellant would be entitled to his costs throughout.