Digyadarsan Rajendra Ramdassji Varu Vs.
State of Andhra Pradesh & ANR [1969] INSC 91 (26 March 1969)
26/03/1969 GROVER, A.N.
GROVER, A.N.
SHAH, J.C.
RAMASWAMI, V.
CITATION: 1970 AIR 181 1970 SCR (1) 103 1969
SCC (1) 844
CITATOR INFO :
R 1983 SC 1 (130)
ACT:
Andhra Pradesh Charitable and Hindu Religious
Institutions and, Endowments Act (17 of 1966), ss. 46 and 47-If violative of
Arts. 14, 19(1)(f), 25(1) and 26(b) and (d) of the Constitution of India.
HEADNOTE:
On November 18, 1968, fourteen charges under
s. 46(1) of the Andhra Pradesh Charitable and Hindu Religious institutions and
Endowments Act, 1966, were preferred against the petitioner who was the
Mathadhipathi of Sri Swami Hathiramji Math, Tirupathi-Thirumalla. Under s.
46(3) he was suspended from his office pending enquiry under s. 46(2), and
under s. 47, the Assistant Commissioner, Endowments Department, was directed to
attend to the day-to-day administration of the Math and its endowments
temporarily until the disposal of the inquiry. The petitioner challenged the
constitutional validity of ss. 46 and 47 as violative of his fundamental rights
under Arts. 14, 19(1)(f), 25(1) and 26(b) and (d), in a petition under Art. 32.
HELD : (1) A mathadhipathi is the head and
superior of a spiritual fraternity and the purpose of a math is to encourage
and foster spiritual training by the maintenance of a competent line of
teachers who could impart religious instruction to the disciples and followers
of the math and to strengthen the doctrines of the particular school or order
of which they profess to be adherents. By virtue of his office he is under an
obligation to discharge his duties as a trustee and is answerable as such. He
enjoys large powers for the benefit of the institution of which he is the bead.
He is to incur expenditure for the math, that is, for carrying on religious
worship, for the disciples, and for maintaining the dignity of his office. If
he cannot perform his duties either as a spiritual or a temporal head or cannot
properly administer or manage the trust property or has been guilty of breach
of trust or wilful default or leads an immoral life, action can be taken
against him under s. 46(1). The power is given to the Commissioner to make an
inquiry into or try the allegations or charges against him and to order his
removal if the charges are established.
Under s. 104 of the Act, the proceedings
before the Commissioner are quasijudicial, and if he makes an order of removal,
it can be challenged in a suit in a court of law with a right of appeal to the
High Court. As regards the power to suspend under s. 46(3), the power of
suspension, pending inquiry, is a necessary and reasonable part of the
procedure. If the mathadhipathi is allowed to function during the pendency of
an enquiry he may tamper with the evidence against him and the purpose of the
enquiry may be defeated. Therefore, the restrictions imposed by the impugned
provisions are reasonable and in the interest of general public and do not
violate Arts. 14 and 19(1)(f).
[109 F-G; III C-F; 112 B-E].
The Commissioner, Hindu Religious Endowments,
Madras v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt, [1954] S.C.R.
1005 and H. H. Sudhurndra Thirtha Swamiar v.
Commissioner for Hindu Religions and Charitable Endowments, Mysore, [1963]
Supp. 2 S.C.R. 302, referred, to.
104 (2)Under Art. 25(1), the petitioner has a
fundamental right to practise and propagate his religion freely, but, by the
Commissioner exercising his powers under s. 47 of the Act, the petitioner had
not been prohibited or debarred 'from professing, practising and propagating
his religion.
He could enter the Math and exercise the
fundamental right.
[113 E] (3)There is nothing in ss. 46 and 47
which empower the Commissioner to interfere with the autonomy of the religious
denomination in the matter of deciding as to what rites and ceremonies are,
essential according to the tenets of the religion the denomination professes or
practises. Neither the Commissioner nor the Assistant Commissioner who has been
put in charge of the day-to-day affairs have interfered in such matters.
Therefore, there is no contravention of Art.
26(b). Under Art. 26(d), a religious
denomination or its representative has the fundamental right to .administer
property according to law. The provisions of s. 47 do not take away the -right
of administration from the hands of a religious denomination altogether and
vest it for all time in a person or authority who is not entitled to exercise
that right under the custom prevailing in the math; nor could such power be
exercised without any justifying necessity. The section deals only with a
situation where there is a temporary vacancy far any of the reasons stated
therein as also because the mathadhipathi has been suspended pending an enquiry
under s. 46, that is, the Commissioner can appoint someone to carry on the
administration of the math and its endowments only when the conditions of s. 47
are satisfied. [113 F-H; 114 A-D] In the present case, the Assistant
Commissioner was appointed because of the enquiry which was pending against the
petitioner, in which, serious charges of misappropriation and defalcation of
trust funds and leading an immoral life were being investigated. [114 D] Shirur
Math case [1954] S.C.R. 1005, referred to
ORIGINAL JURISDICTION : Writ Petition No. 347
of 1968.
Petition under Art. 32 of the Constitution of
India for the enforcement of fundamental rights.
Kanak Ghosh and B. Datta, for the appellant.
P.Ram Reddy, A. V. V. Nair and P. Parameshwar
Rao, for the respondent.
The Judgment of the Court was delivered by
Grover, J. This is a petition under Art. 32 of the Constitution challenging,
inter alia, the constitutionality of ss.
46 and 47 of the Andhra Pradesh Charitable
and Hindu Religious Institutions and Endowments Act, 1966 (Act No. 17 of 1966),
hereinafter called the "Act" and for issuance of a writ in the nature
of mandamus or other appropriate writs and directions to the Commissioner of
Hindu Religious and Charitable Endowments, hereinafter called the "Commissioner
", prohibiting him from exercising his powers or taking action under the
aforesaid sections.
The petitioner claims to be the Mathadhipathi
of Shri Swami Hathiramji Math Tripathi-Thirumalla in the State of Andhra
Pradesh. It is stated that this institution was founded several centuries ago
and is one of the renowned Maths in India. Hundreds 105 of Sadhus visit the
Math throughout the year and it is the duty of the Mahant as its religious head
to provide--the visiting Sadhus with food and shelter and to perform all
religion duties With regard to the celebration of Hindu festivals, propagation
of the cult of Shri Swami Hathiramji and performance of other religious
functions. It is alleged that Mahant Chettandoss, the previous incumbent died
on March 18, 1962. On March 24, 1962 the Commissioner took charge of the Math
and its properties under s. 53 of the Andhra Pradesh (Andhra Areas) Hindu
Religious & Charitable Endowments Act, 1951, Act No. 19 of 1951,
hereinafter referred to as the "Repealed Act". The petitioner filed a
suit on March 26, 1962 in the court of the Subordinate Judge, Chittoor for a
declaration-that he was the rightful successor. The Commissioner was impleaded
as a party to the suit. He also filed 'a revisional application under s. 92 of
the repealed Act to the State Government. The Government disposed of the
revisional application on June 5, 1962. It appointed the petitioner as the
interim Mahant subject to certain conditions which need not be mentioned.
Before this order was made the petitioner withdrew the suit filed by him in
April 1962. Devendradoss, who was another claimant but who was a minor, filed a
writ petition in the High Court challenging the above order of the Government
but the same was rejected by the division Bench. Devendradoss then filed
certain suits for a declaration of his title. On August 22, 1964, the
Commissioner made an order directing the petitioner to show cause why the
previous order appointing him as an interim p Mahant be not recalled. According
to the petitioner this was done because the State Government started claiming,
contrary to the rule and custom which prevailed in the Math, that the amounts
received on account of Padakanukas (personal offerings) should be paid to the
Government and not taken by the Mahant. This order was challenged by the
petitioner by means of a writ petition in the High Court. The High Court is
issued a stay order which was later on clarified to mean that the State
Government was free to take such further action under the Act as it considered
necessary. On September 9, 1965 the State Government framed charges against the
petitioner and directed him to furnish his explanation. The petitioner was
placed under suspension with immediate effect. It was further directed that the
Assistant Commissioner, Tirupathi should take charge of the Math and its
affairs. Meanwhile another claimant Bhagwant doss filed a suit on September 29,
1965, claiming title to the gaddi in his own right. The writ petition which
-had been filed by the petitioner was allowed by the High Court on November-8,
1966. The matter ultimately came up in appeal to this Court, the judgment being
reported in Secretary, Home (Endowments), Andhra Pradesh V. Digyadarsam
Rajindra Ram Dasjee(1). The judgment of the High [1967] 3 S.C.R. 891.
Sup CI/69-8 106 Court was affirmed. The High
Court had held that the petitioner had succeeded to the office of the Mahant on
the death of Chetandoss on March 18, 1962 in his own right.
This Court concurred in that view and
observed that the mere circumstance that the Government had also passed an
order appointing him as the interim Mahant could not take away his right to
function as a trustee on the basis of his original right. It followed that the
Government had no jurisdiction to pass an order placing him under suspension as
that virtually amounted to a removal of the trustee of the Math which could
only be done in the manner provided by s. 52 of the repealed Act.
The Act received the assent of the President
on December 6, 1966 and was enforced with effect from January 27, 1967. On May
30, 1967 the petitioner filed a petition under Art. 226 of the Constitution in
the High Court for declaring the present impunged provisions of the Act as
ultra vires. That petition was dismissed in limine as premature. An appeal to
the Letters Patent bench failed. On coming to know that certain orders were
going to be passed against the petitioner whereby charges on various matters
were to be preferred and an inquiry made and that the suspension of the
petitioner from Mahantship was going to be ordered, the present petition was
filed under Art. 32 of the Constitution in October 1968. In this petition,
apart from challenging the provisions of the Act a case of mala fide action has
been sought to be made out against the respondent. In the order which was made
by the Government on November 18, 1968, as many as 14 charges have been
preferred against the petitioner and his suspension has been duly ordered. The
Assistant Commissioner Endowments Department has been directed to attend to the
day-today administration of the Math temporarily and its Endowments until the
disposal of the inquiry.
Now the Act has been enacted to consolidate
and amend the law relating to the administration and governance of charitable
and Hindu religious institutions and endowments in the State of Andhra Pradesh.
Chapter I contains the definitions of various expressions used in the Act
including the word "Commissioner". Chapter II provides for the
appointment of Commissioner, Joint Commissioners etc., and gives their powers
and functions. Chapter III deals with administration and management of
charitable and Hindu religious institutions and endowments. Chapter IV provides
for registration of such institutions and endowments.
Section 42 in Chapter V defines the word
"mathadhipathi" to mean any person whether known as mohant or by any
other name,' in whom the administration of a math or specific endowment
attached to a math are vested. Sections 46 and 47 are in the following terms :
"446. (1) The Commissioner may suo motu
or on an 107 application of two or more persons having interest, initiate
proceedings for removing a mathadhpathi or a trustee of a specific endowment
attached to a math, if he(a) is of unsound mind;
(b) is suffering from any physical or mental
defect or infirmity which renders him unfit to be a mathadhipathi or such
trustee;
(c) has ceased to profess the Hindu religion
or the tenets of the math;
(d) has been sentenced for any offence
involving moral turpitude, such sentence not having been reversed;
(e) is guilty of breach of trust or
misappropriation in respect of any of the properties of the math;
(f) commits persistent and wilful default in
the exercise of his powers or performance of his functions under this Act;
(g) violates any of the restrictions imposed
or practices enjoined by the custom, usage or the tenets of the math, in
relation to his personal conduct, such as celibacy, renunciation and the like;
(h) leads an immoral life.
(2) The Commissioner shall frame a charge on
any of the grounds specified in sub-section (1) against the mathadhipathi or
trustee concerned and give him an opportunity of meeting such charge, of
testing the evidence adduced and of adducing evidence in his favour. After
considering the evidence adduced and other material before him, the
Commissioner may, by order exonerate the mathadhipathi or trustee, or remove
him. Every such order shall state the charge framed against the mathadhipathi
or the trustee, his explanation and the finding on such charge together with
the reasons therefor;
Provided that in the case of a math or
specific endowment attached thereto whose annual income exceeds rupees one
lakh, the order of removal passed by the Commissioner against the mathadhipati
Or trustee shall not take effect unless it is confirmed by the Government, (3)
Pending the passing of an order under sub-section (2) the Commissioner may
suspend the mathadhipathi or the trustee.
108 (4) (a) Any mathadhipathi or trustee
aggrieved by an enquiry in this behalf that an arrangement for the (2) may,
within ninety days from the date of receipt of such order, institute a suit in
the court against such order.
(b)An appeal shall lie to the High Court
within ninety days from the date of a decree or order of the court in such
suit.
47.(1) Where a temporary vacancy occurs in
the office of the mathadhipathi and there is dispute in regard to the right of
succession to such office, or where the mathadhipathi is a minor an& has no
guardian fit and willing to act as guardian, or where the mathadhipathi is
under suspension under sub-section (3) of section 46, the Commissioner shall,
if he is satisfied after making an inquiry in this behalf that an arrangement
for the administration of the math and its endowments or of the specific
endowments, as the case may be, is necessary, make such arrangement, as he
thinks fit until the disability of the mathadhipathi ceases or another
mathadhipathi succeeds to the office, as the case may be.
(2)In making any such arrangement, the
Commissioner shall have due regard to the claims, if any, of the disciples of
the math.
(3).............................................."
Section 83 confers powers on the Government to call for and examine the record
of the Commissioner in respect of, any proceedings not being a proceeding in
respect of which a suit or an appeal or application or reference to a court is
provided by the Act, to satisfy themselves as to the regularity of such
proceedings or the correctness, legality or propriety of any decision or order
passed therein and if, in any case, it appears to the Government that such
decision or order should be modified, annulled, reversed or remitted for
consideration they may pass orders accordingly. Under s. 104 where a
Commissioner makes an enquiry or hears an appeal under the Act, the inquiry has
to be made and the appeal has to be heard as nearly as may be, in accordance
with the procedure applicable under the Code of Civil Procedure, 1908, to the
trial of suits or the hearing of appeals and the provisions of the Indian
Evidence Act and the Indian Oaths Act have also been made applicable.
Learned counsel for the petitioner has
assailed the constitutionality of s. 46 although he has sought to read s.
47 along with it so as to establish that the
combined effect of the provisions con109 tained in both the sections would be
hit by Arts. 14, 19(1)(f), 25, 26 and 31 of the Constitution. Before the
submissions, which have been made, are examined reference may be made to The
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt(1) in which the constitutionality of various
provisions of the repealed Act was challenged. That case related to the Shirur
Math which was one of the 8 maths situate at Udipi in the district of South
Kanara. The Hindu Religious Endowments Board functioning under the Madras Hindu
Religious Endowments Act 1927 had taken action to frame a scheme for the
administration of the affairs of the math.
The challenge in the courts was confined to
the constitutional validity of the repealed Act. B. K. Mukherjea, J., (as he
then was) dealt exhaustively with the rights of a Mahant to hold office as well
as enjoy the property of the institution. The following observations at pp.
1019, 1020 are noteworthy:
" As said above, the ingredients of both
office and property, of duties and personal interest are blended together in
the rights of a Mahant and the Mahant has the right to enjoy this property or
beneficial interest so long as he is entitled to hold his office. To take away
this beneficial interest and leave him merely to the discharge of his duties
would be to destroy his character as a Mahant altogether. It is true that the
beneficial interest which he enjoys is appurtenant to his duties and as he is
in charge of a public institution, reasonable restrictions can always-be placed
upon his rights in the interest of the public. But the restrictions would cease
to be reasonable if they are calculated to make him unfit to discharge the
duties which he is called upon to discharge.
A Mahant's duty is not simply to manage the
temporalities of a Math. He is the head and superior of spiritual fraternity
and the purpose of Math is to encourage and foster spiritual training by
maintenance of a competent line of teachers who could impart religious
instructions to the disciples and followers of the Math and try to strengthen
the doctrines of the particular school or order, of which they profess to be
adherents.
This purpose cannot be served if the
restrictions are such as would bring the Mathadhipathi down to the level of a
servant under the State department. It is from this standpoint that the
reasonableness of the restrictions should be judged." It was held that the
Mahant was entitled to claim the protection of Art. 19(1)(f). The same Shirur
Math figured in another case (1) [1954] S. C. R. 1005.
110 which came up to this Court and the
decision in which is reported in H. H. Sudhundra Thirtha Swamiar v.
Commissioner for Hindu Religious & Charitable Endowments, Mysore(1).
There the constitutionality of S. 52(1)(f) of
the repealed Act, as amended, was unsuccessfully assailed. The scheme of that
section was similar to S. 92 of the Code of Civil Procedure. The Commissioner
or any two or more persons having interest or having obtained the consent in
writing of the Commissioner could institute a suit in the court to obtain a
decree for removing a trustee of a math or a specific endowment attached to a
math for any one or more reasons given in clauses. (a) to (f) which were
similar to clauses (a) to (f) of sub-s. (1) of s. 46 of the Act.
Whereas previously the Commissioner could
only institute a suit in a court, he has now been empowered under the Act by s.
46 to initiate proceedings himself for removing a mathadhipathi on the grounds
mentioned in clauses (a) to (h). Clauses (g) and (h) are new and sub-s. (2)
gives the procedure for making the inquiry. If the matriadhipathi is aggrieved
by the order made by the Commissioner, he has been given the right to institute
a suit against such order in the court by sub-s. (4).The difference, in other
words, is that previously the removal could be ordered only by the court but
under s. 46 the Commissioner can order the removal after following the
procedure laid down and his order is final except that it can be challenged by
means of a -suit by the mathadhipathi. It also requires confirmation by the
Government where the annual income of the math exceeds rupees one lakh. An
additional power has been conferred on the Commissioner by sub-s. (3) to suspend
the mathadhipathi pending the passing of an orderunder sub-s. (2). , The view
which was taken in the above case was that S. 52(1) (f) of the repealed Act did
not in effect seek to cut down the authority of the Mahant which was
traditionally recognized and that the said provision which authorised the
institution of a suit for removal of a Mahant where he was found to have wasted
the property of the math or applied such funds or property for purposes wholly
unconnected with the institution did not amount to an unreasonable restriction
upon the exercise of the rights of the Mahant.
On behalf of the petitioner a strenuous
attempt has been made to show that s. 46 of the Act is quite different from its
counterpart contained in the repealed Act, namely, s. 52 and that the powers
which have been conferred are clearly violative of the fundamental right to
hold the office of the Mahant as also the property of the math. In H. H.
Sudhundra Thirtha Swamiar's(1) case it has been emphasised that the Mahant by
virtue of his office is under an obligation to discharge the duties as a (1)
[1963] Supp. 2 S. C. R. 302.
111 A trustee and is answerable as such. He
enjoys large powers for the benefit of the institution of which he is the head.
He is to incur expenditure for the math i.e. for carrying on the religious
worship for the disciples and for maintaining the dignity of his office but the
property is attached to the office and the Mahant cannot incur expenditure for
personal luxury or objects incongruous with his position as a Mahant. Keeping
all this in view it is difficult to see how the provisions of s. 46 would be
violative of Art. 19(1)(f) of the Constitution. The grounds on which his
removal as mathadhipathy can be ordered havebeen specifically provided and no exception
has been or can be taken to them. The main attack is based on the power given
to the Commissioner instead of the court to make an inquiry into or try the
allegations or charges against the Mahant and order his removal if such charges
are established. It is not possible to see how a procedural change of this
nature can be regarded as contravening either Art. 19(1)(f) or Art. 14 of the
Constitution which is the other Article which has been pressed into service.
The procedure which has been laid down makes all the proceedings before the
Commissioner quasi-judicial. This is particularly so when the provisions of s.
104 of the Act are kept in view. Moreover if any order of removal is made that
can be challenged in a court of law and there is a further right of appeal to
the High Court. Learned counsel for the petitioner had finally to build his
argument on the provisions of sub-s. (3) which give power to the Commissioner
to suspend the mathadhipathi during the pendency of an inquiry and before any
order in the matter of removal is made. It is pointed out that such suspension
would seriously interfere with the numerous duties which a mathadhipathi has to
perform as the head of a spiritual fraternity. The petitioner, in this manner,
has been debarred from not only managing the institution but also from carrying
out the essential work which according to the tenets and custom of the
fraternity he is under an obligation to do For instance he cannot look after
the Sadhus and other disciples who constantly visit the math and come for
religious instruction there nor can he preside over religious functions and
other periodical festivities which are held in the seat of the math. Thus, it
is urged, that there is a clear violation of Art. 19(1)(f) which guarantees the
petitioner's right to hold and enjoy the property, apart from the interference
with his right to practise and propagate religion and manage the affairs of the
math in matters of religion which rights are guaranteed by Arts. 25 and 26 of
the Constitution.
As regards Art. 19 (1) (f ) it has to be seen
whether the restrictions which have been imposed by the impugned provisions of
the Act are reasonable and at& in the interest of the general public. There
can be little or no doubt that if a mathadhipathi 112 is of an unsound mind or
suffers from any physical or mental defect or infirmity or has ceased to
profess Hindu religion or the tenets of the math or if his case falls within
clauses (d) to (h) of s. 46(1) his removal would be in the interest of the
general public. A mathadhipathi cannot possibly perform his duties either as a
spiritual or a temporal head nor can be properly administer or manage the trust
property if he falls within the categories mentioned in clauses (a) to (d) or
has been guilty of breach of trust or wilful default etc. or leads an immoral
life (vide clauses (e) to (h) of S. 46(1). Even under the Civil Procedure Code
his removal could have been ordered in proceedings under S. 92 for similar'
reasons.
The suspension of a mathadhipathi, during the
inquiry, is a necessary and reasonable part of the procedure which has been
prescribed by s. 46. If he is allowed to function during the pendency of an
inquiry the entire purpose of the enquiry might be defeated. The mathadhipathi,
may, during the pendency of the inquiry, do away with most of the evidence or
tamper with the books of account or otherwise commit acts of misappropriation
and defalcation in respect of the properties of the math. It is essential,
therefore, in these circumstances to make a-provision for suspending him till
the enquiry concludes and an order is made either exonerating him or directing
his removal.
On the question whether ss. 46 and 47 of the
Act contravene Articles 25 and 26, a good deal of reliance has been placed on
the observations in the first Shirur Math(1) case.
Mukherjea, J. (as he then was) delivering the
judgment of the court had examined the scope of the language of Arts. 25 and
26. It was indicated by him that freedom of religion in our Constitution is not
confined to religious beliefs only,;
it extends to religious practice as well as
subject to the restrictions which the Constitution itself has laid down.
Under Art. 26(b), therefore, -a religious
denomination or Organisation enjoys complete autonomy in the matter of deciding
as to what rites and ceremonies are essential according to the tenets of the
religion and no outside authority has any jurisdiction to interfere with its
decision in such matters. Moreover under Art. 26(d) it is the fundamental
right--of a religious denomination or its representative to administer its
property in accordance with law; and the law, therefore, must leave the right
of administration to the religious denomination itself subject to such
restrictions and regulations as it might choose to impose. It was further laid
down that a law which takes away the right of administration from the hands of
a religious denomination altogether and vests it in any other authority would
amount to a violation of the right guaranteed under clause (d) of Art.
(1) (1954) SUPP. S. C. R. 1005.
113 26.Now under s. 47 of the Act where a
mathadhipathi is under suspension the Commissioner can make such arrangement as
he thinks fit for the administration of the math until another mathadhipathi
succeeds to the office and in making such arrangement he has to have due regard
to the claims of the disciples of the math. It is maintained on behalf of the
petitioner that the appointment of Assistant Commissioner, Endowments
Department, Tirupathi as the day to-day administrator-of the math and its
endowment as a two-fold effect. The first is that the complete autonomy which a
religious denomination like the math in question enjoys in the matter of
observance of rights and ceremonies essential to the tenets of the religion has
been interfered with. The second is that the right of administration has been
altogether taken away from the hands of the religiousdenomination by vesting it
in the Assistant Commissioner.
This clearly contravenes the provisions of
clauses (b) and (d) of Art. 26 within the rule laid down in the first Shirur
Math case. By doing so in exercise of the powers under s.
47 the Commissioner has also debarred the
petitioner from practising and propagating religion freely which he is entitled
to do under Art. 25(1).
The attack on the ground of violation of Art.
25(1) can be disposed of quite briefly. It has nowhere been established that
the petitioner has been prohibited or debarred from professing, practising and
propagating his religion. A good deal of material has been placed on the record
to show that the entire math is being guarded by police constables but that
does not mean that the petitioner cannot be allowed to enter the math premises
and exercise the fundamental right conferred by Art. 25(1) of the Constitution.
As regards he contravention of clauses (b) and (d) of Art. 26 there is nothing
in ss. 46 and 47 which empowers the Commissioner to interfere with the autonomy
of the religious denomination in the matter of deciding as to what rites and ceremonies
are essential according to the tenets of the religion the denomination
professes or practises nor has it been shown that any such order has been made
by the Commissioner or that the Assistant Commissioner who has been put in
charge of the day to-day affairs is interfering in such matters, Section 47 of
the Act deals only with a situation where the.--is a temporary vacancy in the
office of the mathadhipathi by reason of -any dispute in regard to the right of
succession to the office or the other reasons stated therein as also because
the mathadhpathi has been suspended pending an inquiry under s. 46. Its
provisions do not take away the right of administration from the hands of a
religious denomination altogether and vest it for all times in a person or
authority who is not entitled to exercise that right under the customary rule
and custom prevailing in the math. In the first Shirur math case, s.
56 of the repealed Act before its amendment
by 114 Act 12 of 1954 was struck down as power had been given to the
Commissioner to require the trustee to appoint a manager for the administration
of the secular affairs of the institution and the Commissioner himself could
also make the appointment. It was pointed out that this power could be
exercised at the mere option of the Commissioner without any justifying
necessity whatsoever and no pre-requisites like mismanagement of property or
maladministration of trust funds were necessary to enable the trustee to
exercise such drastic power. The effect of the section really was that the
Commissioner was at liberty, at any moment, to deprive the Mahant of his right
to administer the trust property even if there was no negligence or
maladministration on his part. Such a restriction was held to be opposed to the
provisions of Art. 26 (d) of the Constitution. Section 47 of the Act is not in
pari materia with S. 56 of the repealed Act. On the contrary S. 47 indicates
quite clearly the conditions and situations in which the Commissioner can
appoint someone to carry on the administration of the math and its endowments.
In the present case, the Assistant Commissioner has been appointed as a day
to-day administrator because of the inquiry which is pending against the
petitioner and in which serious charges of misappropriation and defalcation of
trust funds and leading an immoral life are being investigated. It cannot be
said that S. 47 would be hit by Art. 26(d) of the Constitution as the powers
under it will be exercised, inter alia, when mismanagement of property or maladministration
of trust funds are involved.
Counsel for the petitioner has not made any
serious attempt to argue that in the view that we are inclined to take there
would be any contravention of Art. 31(1) of the Constitution. He has, however,
pressed for the petitioner being allowed to take the padakanukas which are
receivable by the Mahant of which he will keep an account as was directed by
this Court when disposing of the stay petition on December 13, 1968. Counsel for the respondent agrees to this and has also agreed to keep accounts of whatever
amount is spent on feeding the sadhus and on, the management of the math
property. He has further given an undertaking that the inquiry which is being
conducted under s. 46 of the Act will be concluded within a period of -three
months. It may be made clear that the Assistant Commissioner who is in charge
of the day-to-day administration temporarily of the math and its endowments
shall be fully entitled to take necessary steps for recovery of "all debts
and claims which could have been recovered by the Mahant from various debtors
etc.
The writ petition, however, fails and it is
dismissed, but in view of the entire circumstances we make no order as to
costs.
V.P.S. Petition dismissed.
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