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TMI Blog1946 (3) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhattar. These actions of the Respondents caused grave offence to many other Hindus, including the Appellants, as amounting to a most serious defilement of the temple. Immediate protests were made, followed* by an action started by the Appellants and others in the Court of the Subordinate Judge of Madura (O. S. No. 48 of 1939) by a plaint dated the 13th July 1939. The relief claimed in the action were that the first Respondent should be directed to cause the requisite purification and ritual ceremonies to be duly performed, that the Respondents should pay the expenses of such ceremonies, and that various injunctions should be granted against the Respondents to prevent any repetition of such events as had taken place on the 8th July, 1939. 2. On the 11th September, 1939, the Madras Temple Entry Authorisation and Indemnity Act, 1939 (hereinafter referred to as the Act ), having been assented to by the Governor-General on the 4th September, 1939, was first published in the Fort St. George Gazette and thereupon prima facie became law. On the 18th September, 1939, one of the Respondents took objection in the said action that by virtue of the Act the action was no longer maintaina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court as to places within the temple which the various communities should use for the purpose of worship. Having regard •to the question raised as to the validity of the Act, the learned Judges granted a certificate under Section 205 of the Government of India Act, 1935. By petition dated the 13th March, 1945, the Appellants appealed to this Court from the said decision of the Madras High Court. 3. In this appeal we have had the benefit of very full and learned arguments from counsel for the Appellants and the Respondents and from the Advocate-General of Madras as intervener, in which the arguments advanced in the High Court have again been put forward and elaborated. We do not, however, propose to deal with all the arguments at length. In our judgment the matter can best be concluded and the case decided on the construction of entry No. 34 of List II in the Seventh Schedule to the Government of India Act, 1935. That entry is in these words: 34. Charities and charitable institutions ; charitable and religious endowments. 4. Summarising the main arguments on the construction of this entry put forward on behalf of the Appellants, it was submitted by counsel for the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le and Religious Trusts Act (Act No. XIV) of 1920; Section 4(3)(i) of the Indian Income Tax Act (Act No. XI) of 1922 ; Ss. 2 (a) and 3 (f) of the Mussalman Wakf Act (Act No. XLII) of 1923 ; Section 118 of the Indian Succession Act (Act No. XXXIX) of 1925 ; and the Madras Hindu Religious Endowments Act (Act No. II) of 1927. It was further argued that an intention to impose a limitation on the right of Provinces to legislate in respect of religious institutions and matters, other than religious endowments or religious societies. and associations, might properly be ascribed to Parliament when sit passed the Act of 1935, having regard to the fact that the only subjects of this nature included by the Devolution Rules in the list of Provincial subjects prior to 1935 were Religious and Charitable Endowments (entry No. 23). 5. Dealing at once with the last point, we feel that very little assistance can be derived from a consideration of the legislative powers of the Provincial Governments prior to the Government of India Act, 1935. The whole scheme of legislative powers Was entirely different under the previous Government of India Act. The basic conception underlying the previous Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns in the context that the portions of an enactment to be construed have not been drafted on the basis of any such principle. In our opinion it- is only necessary to consider in detail a number of entries in the Lists in the Seventh Schedule to come to the conclusion that so far from the principle referred to having been kept in view throughout the drafting of these Lists, a very different principle has in fact been adopted in a large number of cases. In such last mentioned cases, it seems to us that the entries start with the use of some term or phrase of very general and far-reaching conception, and that then such term or phrase is followed by a number of words or phrases with meanings which might well be included in the meaning of the opening term or phrase, if that had been left to stand alone, or with meanings indicating a somewhat different approach to the subject of legislation intended to be included in the opening term or phrase. Such additional words and phrases are added for the purpose of removing doubts as to the wide scope of the meaning of the opening term or phrase. The subsequent words and phrases are not intended to limit the ambit of the opening general term or p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards, many enactments have been so drawn as to indicate expressly when religious as well as, or as opposed to, secular charitable trusts, purposes, trustees, institutions, or societies are or are not made the subject or object of the legislation in question. This has generally been done, for some very specific reason, as for instance for the purpose of securing that religious trusts, trustees, endowments or institutions shall be treated separately and differently from secular trusts, trustees, endowments and institutions, as in the Religious Endowments Act of 1863, or to ensure that they shall all be treated in the same way, in cases where doubts have been or might be cast on the scope of the legislation as in Section 539 of the Code of Civil Procedure of 1882. But the very fact that the distinction has been expressly so often made in legislative enactments indicates that fundamentally the scope and meaning of the terms charity and charities may be at least as comprehensive in British Indian law of religious charities and institutions, or charities and institutions for religious purposes, as it is in English law. The express inclusion of religious endowments in entry No. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words charitable institutions and charitable endowments. 10. Moreover, if the Appellants' arguments were sound that the only powers to be found in the Constitution Act of 1935 to legislate in respect of religious institutions are limited to legislation in respect of religious associations and societies in entry No. 33 of List II, and religious endowments in entry No. 34 of the same List, and that entry No. 9 in List III is not applicable to legislation in respect of religious institutions, then both Central and Provincial Legislatures are without any general powers of legislation in respect of religious institutions, religious trusts and other religious matters. Any legislation in respect of such omitted subjects would have to be authorised by Section 104 of the Government of India Act, 1935, or made the subject of an amending Act of Parliament. We find it difficult to believe that such could have been the intention of Parliament, particularly when the references to religious societies and associations in entry No. 33 and to religious endowments in entry No. 34 show that legislation in respect of religious matters must have been considered. We cannot believe that such a far- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subject, in which case the Court will incline to a construction which will give validity to such legislation. On this point we would refer to and adopt the opinion of the majority of the Judges in this Court in the passage at page. 330 in In re Levy of Estate Duty [1944] F.C.R. 317. 11. In our judgment therefore the Madras Provincial Legislature had power by virtue of entry No. 34 in List II to legislate in respect of religious institutions within the Province of Madras in the manner in which it purported to legislate by the Act in question in this case. It was argued that the fact that the legislation would affect rights claimed by Hindus domiciled outside the Province of Madras would also make the Act ultra vires. There is nothing in this point. Any rights affected are rights in respect of the temple at Madura which can only be exercised within the boundaries of the Province of Madras. 12. It was also argued that Section 298 of the Constitution Act prohibited any such legislation as that contained in the provisions of the Act in question. Even if we were prepared to agree with counsel for the Appellants that any rights of his clients which have been affected by the legi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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