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TMI Blog1951 (12) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... e Madras Government on 30th September 1951 by a notification in the Fort St. George Gazette- Leave to amend the petitions was granted to the petitioners and they have been permitted to canvass the validity of the new Act as well. Mr. M. K. Nambiyar who appeared for the trustee of the Guruvayur temple argued his petition first and Mr. Alladi Krishnaswami Aiyar and the learned Advocate-General replied to that petition after which the petition relating to Guruvayur temple was allowed to be withdrawn as the Government agreed to cancel the decision to notify the temple and to permit the trustee to function. The arguments addressed by Mr. Nambiyar were adopted by the petitioners in the remaining petitions and they further supplemented the arguments addressed by Mr. Nambiyar. 2. It will be convenient to deal with C. M. P. No. 2591 first as it relates to a mutt & covers a wider field than the petition relating to the Chidambaram temple. Some of the arguments are common to both the petitions, particularly the scope of the articles of the Constitution relied on in support of the petitions as having been infringed by the earlier and the later Acts and also the effect of the two Acts on the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. The Manager has not been allowed to carry on his duties and the power of attorney granted to him has been cancelled without reference to the Board. On the 24th January 1951 the Board issued a notice under Section 63(1) of the earlier Act to the head of the Mutt intimating that in the interests of the proper administration of the Mutt, and its endowments, a scheme of administration should be settled and that further enquiry would be held on 15-2-1951 at 2 p. m. at the office of the Board in Madras, and asking the trustee and other persons having any interest in the said Mutt to make any representations in writing which they might wish to make in the said matter. To this notice a draft scheme was also attached. As the Board had decided to frame a scheme, the petitioner filed two applications on 12-2-1951, the present C. M. P. No. 2591 of 1951 and another C. M. P. No. 2592 of 1951 and obtained stay of further proceedings, and this Court issued a rule nisi in C. M. P. No. 2591 of 1951. C. M. P. No. 2592 of 1951 was filed for the issue of writ of certiorari to call for the records and quash the order of the Board dated 24th January 1951 deciding to frame a scheme. This application w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our groups of two each as Dvandva mutts as the two mutts linked together should co-operate in all matters. The South Kanara Manual, Vol. I, page 148 refers to the fact that the periodical change of the Swami presiding over the temple of Sri Krishna is the occasion of a great festival known as Paryayam when Udipi is filled to overflowing by a large concourse of devotees not only from the District but from distant parts especially Mysore State. The Paryaya Swami is under an obligation to feed the Pilgrims at this festival and he has to meet the expenses of feeding from the income of the temple of Sri Krishna, from the income of his Mutt and from contributions. The rest of the expenditure is met either from the accumulations of the income already made or by borrowing funds. It seems to be almost a usage that every Paryayaswami has necessarily to borrow large amounts to meet the expenditure of the Paryaya as he would always be unable to meet it from the income. This information can be gathered from the South Kanara Manual, Vol. I, pages 147 and 148 and from the decision of the Judicial Committee in 'VIBHU-DAPRIVA v. LAKSHMINDRA', 50 Mad 497 , on appeal from 'LAKSHMINDRA v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the Swami and he even failed to submit the accounts to the Swami. Paragraph 11 of the affidavit gives particulars of the various charges of the Swamiji against his agent. Finally the Swami by registered notice dated 26th August 1950 terminated the management of the said agent and cancelled his power of attorney. He called upon the agent to submit the accounts and also to return the other documents in his possession and custody. On the 28th September, 1950 the agent sent a reply through his advocate Mr. A. Lakshminarayana Rao stating that the cancellation of the power of attorney was illegal as according to its terms, it could not be cancelled and he declined to hand over to the Swamiji the accounts and other documents. This was followed by a suit instituted by the Swami on 4-10-1950 O. S. No. 280 of 1950 in the Sub-Court, South Kanara for recovering possession of the accounts, documents and other movables. It would appear however that a day prior to the institution of the suit on the 3rd October 1950, the agent perhaps anticipating the contemplated suit by the Swami, filed a petition before the Board under Section 18 of the earlier Act bringing to the notice of the Board the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was admittedly received by the Board on the 15th. The notes paper shows that an order was passed directing the framing of a scheme by the Board which does not however bear any date. From the subsequent notice issued bearing date 24th January 1951, it may be assumed that the order was passed on that date. The notice issued thereafter to the Swamiji required him to state his objections for the proposed action of the Board. The order of the Board which was given as an annexure was attacked by the petitioner in these proceedings on the merits and also on the ground that it contravened and infringed and abridged the fundamental rights regarding religious liberty of individuals and denominations' guaranteed by the Constitution. It was claimed that the Mutt belongs only to the Madhwa section of the Hindu community and particularly of Shivalli Brahmins. 8. A counter affidavit was filed on behalf of the Board by its secretary traversing the material allegations and justifying the action of the Board on legal grounds and also on" merits. A preliminary objection was also raised that the application was premature as the final orders settling the scheme were not passed and that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judicial decisions by no means altogether reconcilable and the opinions of text writers. 11. "Mutt" used as a transitive verb means literally "to dwell" or to inhabit. 'Mata' noun means hut, a small building inhabited by an ascetic or devotee, a monastery, a college. In its original and narrow sense, then, the term Mutt signified the residence of an ascetic or Sanniyasi or Paradesi. See 'GJYANA SAMBANDA PANDARA v. KANDASAMI', 10 Mad 375 . From very ancient times, the Sanniyasis had no fixed abode but were wandering from place to place receiving such lodgings and food as were provided by devotees. Even now to a large extent the same practice obtains except in cases where such sanniyasis are attached to a Mutt. When Buddhism was in its ascendancy in India and when Budhistic monks became popular, Sri Jagadguru Adisankaracharya gave a new orientation and infused fresh blood into Hinduism and stemmed the tide of the rapid spread of Buddhism in India. He established the Adwaita or Vedantic system of philosophy with which his name is always associated. He was the first, so far as tradition goes, to establish Mutts for the propagation of his phil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the object with which they were established as follows: Now there can be no doubt that institutions of the class under consideration were established as centres of theological learning and in order to provide a line of competent teachers with reference to the established Hindu creeds of the country. If any proof of this statement were necessary, that is furnished by the unquestionable connection which exists between some of the more important of this class of institutions and the leading exponents of the tenets of those creeds. As pointed out in Mr. Ghose's Hindu Law, page 680, no less than seven mutts, being among the most celebrated, owe their origin to the great Adwaita Philosopher Sankaracharya. Other mutts not less numerous or important following the tenets of the Visishtawaita system of Ramanujacharya are traceable to that teacher. The well-known eight muttis at Udipi, the centre of the Dwaita system of thought, are on all hands admitted to have been founded by Madhwacharya, the chief expounder of that system. The Sudra mutts of this Presidency, of which those at Dharmapuram and Tiruvaduthorai are the chief, represent what is known as the Saiva Sidhantam." (The r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts are offered as padakanikas at the feet of the Swami. There are also permanent endowments of lands and villages made in ancient days by kings and Rajas without indicating the particular object for which such properties were endowed. It would perhaps be considered impudence on the part of the donor to impose any conditions or restrictions regarding the use of the income from the properties gifted to a personage whom he held in high religious esteem. The piety of the head to whom the gifts were made was a sufficient guarantee that the corpus and the income would not be frittered away for mundane purposes. These mutts, in short, are something like colleges established and founded for the study and teaching and for propagating the cult of the religion peculiar to the mutt. 14. So much about the functions of these mutts in Hindu religion. The more difficult question for solution is the juristic relationship of the superior or the head of the Mutt to the property. The difficulty is enhanced when attempt is made to it facts to notions borrowed from the English jurisprudence. Viewed from the juristic conception of a trust, it is difficult to infer that the Matathipahi is invariably a tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e world at large. Though it is elementary knowledge, it is always useful to bear in mind the elements that go to constitute a trust. In 'SAMMANTHA PANDARA v. SELLAPPA CHETTI, 2 Mad 175, Muthusamj Ayyar, J. considered that The property of the mattam does not descend to the disciples or elders in common; the preceptor the head of the institution, selects among the affiliated disciples him whom he deems the most competent, and in his own lifetime installs the disciple so selected as his successor, not uncommonly with some ceremonies. After the death of the preceptor the disciple so chosen is installed in the gaddi, and takes by succession the property which has been held by his predecessor. The property is in fact attached to the office and passes by inheritance to no one who does" not fill the office. 'It is in a certain sense trust property; it is devoted to the maintenance of the establishment but the superior has large dominion over it, and is not accountable for its management nor for the expenditure of the income, provided he does not apply it to any purpose other than what may fairly be regarded as in furtherance of the objects of the institution'." (The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SAMMAN-DHA PANDARA v. SELLAPPA CHETTI', 2 Mad 175. The precise dual character of the heads of the institutions like the Mutts was compared to that of the temples by the learned Judge. In the case of temples undoubtedly the idol is the ideal person and juristic entity in whom the property is vested and the dharma-kartha or the manager for the time being had no sort of beneficial interest in the property which is entrusted to his care and management but he being undoubtedly in a fiduciary position his liability is strictly that of a trustee though he is not a trustee himself and he is not a trustee because the property does not vest in him. How does the position stand regarding the Mutts? The learned Judge deals with this question at page 442 and adverts to the fact that invariably in the Mutts there are idols connected with the worship, which is a secondary matter "the principal purpose" to quote the learned Judge, of such an institution being the maintenance in circumstances likely to command due respect and estimation of a line of competent religious teachers, who, as already shown, are given for the welfare of the foundation itself, a real and so to speak, beneficia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral persons forming the corporate body, --these latter being the dharmakarthas or panchayats etc., charged with the execution of the trusts of the institution and possessing strictly limited powers of alienation of the endowments, as defined in the cases cited above. Though a fluctuating and uncertain body of men cannot claim a profit 'a prendre in alieno solo', nor be the grantee of any kind of real property (see 'GOODMAN v. MAYOR OF SALTASH', (1882) 7 A.C. C33, yet there is high authority for treating such a community as a corporation of juristic person in relation to religious foundations and endowments. With reference to the heads of the Mutts he observes at p. 454: The position of the head of the mutt is thus not the same as or analogous to that of managers or dharmakarthas of devasthanams & temples, but resembles more that of Bishops and Archbishops in the Christian system of Europe. In the case of temples, the endowments, whether in the shape of landed property or tasdik allowances, have to be devoted to the carrying out of the specific purposes connected with the temple, i.e., the daily worship and the periodical ceremonies and festival -- purposes define ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onding to the present Section 92. The object of the suits was to have it declared that there was no lawful trustee for the Mutt. The object of filing the two suits was some doubt was felt, whether the head of the Mutt was a trustee within the meaning of Section 92, C. P. C. Therefore in one of the suit a mere declaration was sought. In both the suits there was a common issue whether the first defendant, the de facto holder of the office was a mere trustee of the mutt or had a life estate in the Adhinam properties. Both the suits were dismissed by the District Judge on the authority of ' VIDYAPURNA TIRTHASWAMI v. VIDYANIDHI TIRTHA SWAMI' 27 Mad 435, holding that the Pandarasannadhi i.e., the head of the mutt was not a mere trustee and that therefore no suit lay under Section 539 of the Code. There were appeals to the High Court which came up in the first instance before Munro and Abdur Rahim JJ. who referred the question: "Does the head of a mutt hold the properties constituting its endowment as a life tenant or as a trustee?" to a Full Bench as the learned Judges doubted the correctness of the decision in 'VIDYAPURNA TIRTHASWAMI V. VIDYANIDHI TIRTHASWAMI' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able services from and out of the income in his hands. In view of the answer given by the Full Bench, when the case went back to the Division Bench, the decision of the learned District Judge was reversed & the suits were remanded for ascertaining whether there was any specific evidence to establish that with reference to any particular property, there was a trust created in the manner recognised by law. After remand, the matter was considered by the subordinate Judge to whom it was transferred and he recorded a finding that there was no evidence to show that the Pandarasannadhi was a trustee and he again dismissed the suits. The matter came up again to the High Court and the decision is reported as 'KAILASAM PILLAI v. NATARAJA TAMBIRAN' 32 M. L. J. 271. By this time, the Privy Council judgment in 'RAM PRA-KASH DAS v. ANAND DAS', 43 Cal 707 , was pronounced in which there were observations to the effect that the position of a mahant was that of a trustee. Attempt was made therefore to re-open the decision of the Full Bench and to canvass its correctness. But this attempt failed as the Division Bench refused to re-open the question rightly pointing out that the reme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cal 707 , it was explained, was intended to be used only in a general sense as a convenient and compendious expression to convey the general obligations. It was not intended by that expression to define the term or to hold that the word in its specific, sense is applicable to the laws and usages in India. The decisions of this Court in 'VIDYAPURNA TIRTHASWAMI v. VIDYANIDHI TIRTHASWAMI', 27 Mad 435, and of the Full Bench in 'KAILASAM PILLAI v. NATARAJA TAMBIRAN', 33 Mad 265, were referred to in the course of the judgment without any disapproval, of the view taken by the Full Bench. In the case of temples, "the image or the deity of the Hindu pantheon", observed Mr. Ameer Ali is, as has been aptly called, a 'juristic entity', vested with the capacity of receiving gifts and holding property. Religious institutions, known under different names, are regarded as possessing the same 'juristic' capacity and gifts are made to them 'eo nomine............When the gift is directly to an idol or a temple, the seisin to complete the gift is necessarily effected by human agency. Called by whatever name, he is only the manager and custodian of the idol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harity, and his rights, apart it may be in certain circumstances from the question of personal support, are never in a higher legal category than that of a mere trustee. 19. To these weighty pronouncements may be added the latest decision of the Supreme Court in 'ANGURBALA v. DEBABRATE', (1951) SCJ 394, where it had to consider the question whether the Hindu Women's Rights to Property Act XVIII of 1937 as amended by Act XI of 1938, was applicable to the devolution of shebaitship. The Act would apply if the shebaitship is property. The answer given was that it was property within the meaning of that Act. Mukerjea J. at page 398 summarised the position of a shebait as follows: The exact legal position of a shebait may not be capable of precise definition but its implications are fairly well established. It is settled by the pronouncement of the Judicial Committee in 'VIDYA VARUTHI v. BALUSWAMI', 44 Mad 831, that the relation of a shebait in regard to debutter property is not that of a trustee to trust property under the English law. In English law the legal estate in the trust property vests in the trustee who holds it for the benefit of cestui que trust. In a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent, that this decision is still good law and it is unnecessary to refer to the other decisions in view of the weighty pronouncements of the Judicial Committee and of the Supreme Court. 21. From this review of the authorities, it may be taken as established that the head of the mutt is not a trustee in the sense in which that word is used in the law of Trusts and his position cannot be brought under any legal label known to English jurisprudence. He is not even a life tenant in respect of the properties permanently vested in the mutt or the religious institution. He has a right to the income but he has no power of disposition over the corpus unless necessity or benefit is established. He has large powers over the surplus of the income after meeting the demands of the institution such as its maintenance, the maintenance of the disciples and the performance of the daily worship etc. He has the discretion to use the surplus for spiritual objects and that discretion is unfettered so long as the surplus is not diverted to any immoral or wicked purposes. He has the liberty to accumulate the income. The padakanikas are at his absolute disposal. If, however, it is established that any s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llectors. In 1810 in the Bengal Presidency and in 1817 in the Madras Presidency, the Government enacted regulations by which they assumed control of all public endowments, Hindu and Muhammadan, which were placed under the superintendence of the Board of Revenue. Madras Regulation VII of 1817 related to endowments of land and money granted in respect of mosques, Hindu temples or colleges or other pious and beneficial purposes. Secular charities and non-religious charities such as choultries and chatrams were also included in it. By Section 2 of that Regulation, the superintendence over the endowments was vested in the Board of Revenue. Mutts were not specifically included in it. The Board of Revenue was authorised to appoint local agents, the Collector of the District being ex officio one of such agents. The main object of the Regulation was to see that the income from the endowments was properly applied to the purposes for which they were established. The local agents had to keep watch over the endowments in their charge and to report to the Board. This system of management continued till about 1842 when owing to the agitation set on foot by Christian missionaries that a Christian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly for directions to the Court whenever necessary. The Civil Procedure Code of 1908 enacted Section 92 which replaced the earlier section 539. It enlarged the scope of the suit in respect of trusts created for public purposes of a charitable or religious nature. Under this section in case of breach of trust two or more persons having interest in the trust with the previous sanction of the Advocate-General or Collector of the District were empowered to institute a suit in a Court having jurisdiction for removal of a trustee and for appointment of a new trustee and also for directions regarding accounts and enquiries. The Court is also empowered in such a suit to settle a scheme for the administration of the trusts. This section was taken advantage of by many of the worshippers of temples, and representative suits under Order 1, Rule 8, C. P. C, were also instituted. The administration of a large number of temples and the conduct of the trustees was made the subject-matter of judicial enquiry in suits instituted in various Courts. 23. The British Government throughout followed a policy of neutrality in matters of religion ever since the date of the Proclamation of 1858 by Queen Vic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or assisting in the administration of such endowments along with the trustee or trustees. There were other provisions relating to finance including a power to levy contributions from mutts and temples not exceeding 11/2 per cent of its income as may be determined by the Board. The operation of Sections 92 and 93 and Order I, Rule 8, C. P. C. was excluded" in respect of suits claiming any of the reliefs under Section 69 (1) of the Act i.e., for appointing or removing a trustee of a mutt or excepted temple, vesting any property in a trustee and so on. The suit under Section 69 could be instituted by the Board or Committee having jurisdiction over the Mutt or temple or any person having interest with the consent of the Board. Power was also conferred by Section 74 to get possession of the property of the trust through Court. Immediately after the Act came into force, its validity was challenged in suits instituted for the purpose on the ground that the Act was not validly passed. For this reason, the legislature' enacted the Madras Hindu Religious Endowments Act, 1926, Act II of 1927. repealing Act I of 1925. Some alterations were also made in the provisions of the Act which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and non-excepted temples and extended the provisions of the Act to religious endowments in the Presidency Town also. The definition of "religious endowments" has been amplified so as to give power to the Board over the property or endowments of a defunct temple. The powers of the Board have also been enlarged to a large extent. The provisions of Sections 38 and 39 of the Act regarding the preparation of registers of endowments and the annual verification of the register have been made applicable to Mutts also. In settling a scheme for temples under Section 57 of the Act the Board was empowered to remove an existing trustee or trustees whether hereditary or non-hereditary and the notification procedure was made applicable to temples governed by a scheme previously framed by the Board or settled by Court. So far as Mutts are concerned, the power of the Board was. enlarged in various respects, the most important of which is the power to appoint a paid executive officer to take charge of the administration of a Mutt and its endowments. The surplus funds could also be diverted by direction of the Board in the scheme in accordance with the provisions of Section 67. The power of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Drastic changes of a fundamental character in the law were introduced by Act XIX of 1951 which, as its preamble shows, is intended to amend and consolidate the law relating to the administration and governance of Hindu Religious and Charitable Institutions & Endowments in the State of Madras. The ambit and scope of the Act are extended by making it applicable to charitable institutions as well and the endowments attached to them. Power is conferred by Section 2 of the Act to extend the provisions of the Act to religious institutions and endowments of Jains and the Act is to apply to charitable endowments only if a notification extending the provisions is issued by the Government. The system of controlling and supervising the endowments through a statutory body hitherto known as the Madras Hindu Religious Endowments Board has been completely abolished & the administration of the religious and charitable institutions and endowments has been vested in a department of the Government, the Commissioner being the head thereof. Under him there are Deputy Commissioners and Assistant Commissioners and Area Committees. The State is divided into areas, at present three areas, and each area ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... administration of a religious institution is vested, and includes any person or body who or which is liable as if such person or body were a trustee. A perusal of the definition would disclose that the word 'trustee' is used in the Act in a sense totally different from the narrower meaning attached to it in the law of Trusts. It is intended to bring within its purview the 'Dharmakartha' or the manager of a temple and even 'Matathipathis' in whom the administration of religious institutions is vested. Even if a person is liable to answer in the same manner and to the same extent as if he were a trustee, such a person also would be a trustee within the meaning of the Act. Chapter III contains general provisions applicable to all religious institutions. Section 20 vests the administration of all religious endowments and the general superintendence & control in the Commissioner. The power of superintendence includes within its ambit the power to pass any orders which may be deemed necessary to ensure that such endowments are properly administered and that their income is duly appropriated for the purposes for which they were founded or exist. Section 21 gives ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot apply to Mutts or specific endowments attached to Mutts. Chapter IV which begins with Section 52 deals with Mutts. Section 52 provides for the removal of a trustee of a Mutt on the grounds specified therein by a suit instituted by the Commissioner or any two or more persons having interest in the Mutt and having obtained in writing the consent of the Commissioner. If succession to the headship is in dispute or when there is a vacancy which cannot be filled up immediately or when the trustee is a minor, the Board has to make interim arrangements for the administration after taking into consideration the claims of the disciples of the Mutt if any. Section 54 relates to dittams. The trustee is required to submit to the Commissioner proposals for fixing the dittam and the amounts to be allotted to the various objects connected with the institution. The proposals have to be published and after receiving suggestions, if any, the proposals will be scrutinised by the Commissioner and after necessary enquiry from the trustee, it would be open to the Commissioner if he thinks that a modification is required, to submit the case to the Government who shall pass orders thereon and the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner. If the Commissioner decides after hearing objections following the procedure laid down in Section 63 that the institution should be notified, the matter is reported to the Government and it publishes a notification in the Fort St. George Gazette declaring the religious institution to be subject to the provisions of this chapter. Such notification remains in force for a period of five years. The effect of notifying a religious institution is to take over the administration and vest it in an executive officer appointed by the Commissioner. The Commissioner is to decide the power and the duties which the executive officer should exercise but subject to the proviso that only such power and duties as appertain to the administration of the endowments of the religious institution shall be assigned to the executive officer. Chapter VII deals with budgets, accounts and audit. Budget is compulsory in the case of religious institutions and the trustee is enjoined to keep regular accounts which should be got audited by an auditor, the details of which need not be referred. Chapter VIII deals with finance. Section 76 vests in the Government the power to levy an annual contribution no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Swami and no person has a right to insist that he is entitled to get his initiation from the Swami. It is an autonomous body existing for the spiritual benefit of the followers of the mutt. It is therefore claimed that it is solely and exclusively a private institution, something analogous to a college run under private management and therefore cannot be treated as a public religious institution. There is no doubt considerable force in this argument; but we are unable to entertain that objection at this stage as it was not raised before the Board and not even in the pleadings in this petition. The question whether an institution is a public institution or a private one has necessarily to be decided on evidence applying the tests recognised and established by decisions to distinguish a public institution from a private one. It is a well-known fact that the extent and nature of the rights and duties and every matter relating to a mutt is dependent exclusively upon established usage. If such usage had been established by evidence that the public or a section thereof have no right to enter into the mutt and to claim its benefits, it would have been a different matter. The objection, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orce and must be rejected as it is not supported by any authority. The analogy of the position in the case of a writ of certiorari does not apply here. 27. We may now examine the Articles of the Constitution which have been relied on as having been contravened by the impugned legislation. The power of the legislature of the State of Madras to enact the law now challenged is conferred by the Constitution by Articles 245 and 246 and item 28 of the concurrent list, List III of the seventh schedule. Article 245 is made expressly subject to the provisions of the Constitution and Article 246(2) enables a State Legislature specified in Part A to enact laws with respect to any matters enumerated in List III of the Seventh Schedule. Item 28 of that list is Charities and charitable institutions, charitable and religious endowments and religious institutions. In the Government of India Act, 1935, Item 34 of List II was "charities and charitable institutions, charitable and religious endowments". As religious institutions were not specifically mentioned in that item, a question was raised in 'MANIKKASUNDARA BHATTAR v. R. S. NAYUDU', (1946) FCR 67, that the Madras Temple Ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law and the equal protection of laws guaranteed under Article 14 have been denied to him, that there was unreasonable discrimination based solely on religion which offends Article 15, that the right to acquire and hold and dispose of property under Article 19(1)(f) has been unreasonably restricted and that the right to freedom of religion conferred under Articles 25 and 26 has been unduly restricted and circumscribed practically denying the liberty granted" by the Constitution. The levy of contribution under Section 76 of the new Act is, it was contended, in the nature of a "tax" within the meaning of Article 27 which is unconstitutional. 29. The conditions, the violation of which would bring a given legislation within the mischief of Article 14, have now been authoritatively settled by two decisions of the Supreme Court by which we are bound viz., 'CHARANJIT LAL v. THE UNION OF INDIA', 1951 SCJ 29 and THE STATE OF BOMBAY v. BALSARA', 1951 SCJ 478. In the second of these cases, the principles to be borne in mind when applying Article 14 have been analysed and stated in the form of propositions by Fazl Ali J. at page 491 as follows: (1) The presumption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is not a classification or division made for the first time by the State Legislature. The distinction existed for nearly a century. As the incidents and the nature of the institutions and endowments of different religions differ in several respects, it cannot be said that the classification is based solely on religion as the institutions included in the classification are religious as well as secular and having regard to the object in view, the institutions having several common features are rightly classified, under one group. Article 14 does not prevent the legislature from taking up one set of institutions for legislative consideration at one time and enacting laws in respect of them I reserving the other types of institutions for I consideration to a future date. It is impossible to accept the contention that the impugned Act violates either Article 14 or Article 15. 30. The right to acquire, hold and dispose of property is conferred on the citizen by Article 19(1)(f). This right, however, as many of the fundamental rights enumerated in the Constitution, can only be exercised subject to reasonable social control in the larger interests of the State and for its welfare. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 19(1)(f) applies only so long as a person is not deprived of his property by a law enacted by a competent legislature. It was contended on behalf of the respondent that trusteeship as understood in the law of trusts is not property contemplated by the Article. Willis in his book on Constitutional Law at page 815, in dealing with property that may be taken under the power of eminent domain, says: In general it may be said that any and all property may be taken. Land, buildings, water, an easement as distinguished from "general property, a contract, and a franchise may be taken. Weaver in his book on Constitutional Law at page 374 says: Property is ownership. It consists of the free enjoyment of one's acquisitions without control or diminution save by the law of the land. It consists not merely of ownership and possession but in the unrestricted right of use and disposal. Anything which destroys any of these elements to that extent destroys the property itself. The right of property is a natural right and neither the Federal Government, nor the State Government can deprive its owner of it or its possession except by the duo process of law. Property includes not on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the law of trusts nor is the head of a mutt such a trustee. The decisions in support of this have already been noticed. A 'Dharmakartha' very often has no beneficial interest in the property in his possession but his office is hereditary (we are of course not referring here to non-hereditary trustees). We have considered the decisions in extenso on the jural relationship of the mathadhipathi to the mutt and its properties. He is not a bare trustee, but he occupies a peculiar position and has beneficial ownership to some extent in the property and the income. The mathadhipathi therefore cannot be correctly described as a "trustee" owning no beneficial interest in the property under his management. Even if the argument, therefore, of the respondent were accepted, the mathadhipathi satisfies that test and has beneficial interest in the property. Even in the case of a dharmakartha or the manager of a temple, there may be instances where such a dharmakartha is not merely a manager but also has beneficial interest in the property. In such a case also, the test laid down on behalf of the respondent would be satisfied. If there be however an instance where the dharmakart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty may be inalienable but yet a person may be entitled to hold it as in the case of inalienable service mams. The person holding such an inam is entitled to enjoy its income so long as he holds it, though he will not be entitled to dispose it of either by will or by gift 'inter vivos'; but must allow the property to pass on to the next office holder according to the law of succession governing such property. The argument that if the headship of a mutt is considered to be property, in no case can the mathadhipathi be removed even if it is established that he is disqualified from holding the position or proved that he is unworthy to hold it, overlooks the fact that in such an event, Article 31(1) clothes the legislature with power to enact a law depriving a person of the property. Of course such a legislation should_ not contravene or infringe any of the other liberties or fundamental rights recognised by the Constitution. The distinction between Articles 19(1)(f) and 31(1) is the difference between plucking the feathers of a bird one by one and killing it. In such a case Article 31(2) does not come into play as it would not be "acquisition" meaning transfer of prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utilisation of the surplus funds, the discretion of the head or the mathadhipathi is seriously interfered with by the provisions of the Act. In incurring expenditure under Section 30 of the new Act for the health, safety or convenience of the disciples, pilgrims or worshippers the voice of the Mathadhipathi is not final. Surplus funds may be diverted for other purposes alien to the objects of the institution. While under law lie is entitled to use it at his discretion for any purposes which cannot be described. as wicked or immoral, his discretion is now taken away. ' In the application of the funds for the daily expenditure, he has to conform to the dittam and the opinion of the Commissioner regarding the fixation of the scales of expenditure which has to be submitted to Government who has to pass orders, is final. The routine expenditure in the institution consists usually in the feeding of the disciples and the head, the cost of carrying on of the worship of the deity and the feeding of the visitors and others according to the usage of the Mutt. There may be periodical special services or worship and the scale at which the amount has to be spent is usually at the discretion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er which he lay in the performance of the worship and the feeding of pilgrims; and secondly, whether the moneys so borrowed were legitimately applied for those purposes. It follows therefore that if there is a customary obligation like the feeding of the Brahmins who visit the mutt at the time of the paryayam, that obligation cannot be got rid of by the Mathadhipathi and even if he incurs debts for discharging such an obligation, the debts will bind the math and so long as those moneys are not applied for the personal use of the Swami nobody can question the extent or the necessity for the large scale of expenditure incurred by the Mathadhipathi. Customs and usages vary from mutt to mutt and an attempt to apply the axe and cut down the expenditure purely from a secular angle of vision is not to view the matter in the proper perspective. It is this vision, as pointed by the Judicial Committee in the above case, that this Court did not have and the necessity for setting matters right arose before the Judicial Committee. The same mistake and the same error might be repeated by the Government and the Commissioner under the Act as the decision of the Govt. in settling the dittam is sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of religious affairs from secular affairs of a Mutt in such watertight compartments is not possible. The property of the mutt and its income exist for one purpose and only one purpose and that is the religious purpose. It has to be applied and utilised for the maintenance of the mutt, for carrying on the worship and for the propagation of the religion. It is not merely a question of leasing the lands and realising and paying the income into the hands of the head, but extends to the receipt of the income and the disbursements thereof over which practically the Matathipathi has no control. He has no deciding voice in the matter of the selection of the various items of expenditure for the purposes of the mutt and cannot give priority to one over the other. His hands with reference to the property, are tied completely. It does not stop at merely requiring him to prepare the budget and submit it and the accounts; but goes further and takes over the management itself into the hands of the Government through their appointed agents. It cannot therefore be seriously contended that the restrictions so imposed are reasonable and that they are required in the interests of the general publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State implies that the bond of union is not based on religion but on citizenship as distinguished from a theocratic State. In England there is an established Church and the King is considered as the supreme head on Earth. He is the Head of the Church of England and also the patron of all Archbishops and Bishops within the United Kingdom. The Crown, therefore, enjoys the right of patronage in respect of several churches in the Kingdom. In America and other countries such as Australia and the Irish Free State, the position is different. Under the American Constitution, "a wall of separation between the Church and the State" is recognised and this was due to the fact that the American people, before the framing of the Constitution, suffered centuries of religious oppression and persecution and as the bitterness of that sufferings was still fresh in their memory, the wall of separation was erected. The First Amendment enacted: The Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof. Unlike Articles 25 and 26 of the Indian Constitution, this Amendment is framed more as a restriction on the legislative power of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able from the latter. Profession of religion implies, in our opinion, the right of the person who believes in a religion to state his creed and also to propagate it either by speech or by writing or by any other visible means. The practice of religion is the practical expression of his belief in the particular "form of private or public worship. He may himself carry on worship or partake in a worship carried on by others. The exercise of these rights, however, is not altogether free from restrictions. It cannot be doubted that in the public interests and in the interests of and for the welfare of the State, the expression of one's religion should not be allowed to degrade into licentiousness or to perpetrate a crime or endanger public order, morality or health. In other words, to use an expression familiar to American law, it is subject to the police power of the State. Clauses (a) and (b) of Sub-clause (2) of Article 25 reserve also a power to reguiate or restrict any economic, financial, political or other secular activity associated with religious practice and also in the interests of social welfare and reform and for throwing open religious institutions to the Harijan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and may in other respects safeguard the peace, good order and comfort of the community, without unconstitutionally invading the liberties protected by the Fourteenth Amendment. The statute was held unconstitutional. It may be mentioned that so far as the states are concerned, though there is no express provision as the First Amendment is applicable only to Congress it has been field that the same liberty is attracted by Amendment 14 of the Constitution which applies to States. This was decided in 'Everson v. Board of Education', (1947) 330 U S 1: 91 Low Ed 711 and 'Illinois v. Board of Education', (1948) 333 US 203: 92 Law Ed 649. The wall of separation between Church and State is attributed to Jefferson as is stated in 'Everson v. Board of Education Euring', (1947) 330 US 1: 91 Law Ed 711. In 'Murdock v. Pennsylvania', (1943) 319 U S 105: 87 Law Ed 1292, it was stated that the power to tax the exercise of a privilege is the power to control or suppress its enjoyment. A fee imposed for the privilege of canvassing or soliciting within a municipality was held to be an unconstitutional invasion of the right of freedom of religion. These are merely illu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho agree with the reflective comment of the Roman Poet -- "Tantum religio potuit suadere malerum"..... "Almost any matter may become an element in religious belief or Religious conduct. The wearing of particular clothes, the eating or the non-eating of meat or other foods, the observance of ceremonies, not only in religious worship, but in the every day life of the individual -- all these may become part of religion. Once upon a time all the operations of agriculture were controlled by religious precepts. Indeed, it is not an exaggeration to say that each person chooses the content of his own religion. It is not for a Court, upon some a priori basis, to disqualify certain beliefs as incapable of being religious in character. The picture of religion so aptly drawn applies to the religious beliefs in this country as well. Later on at page 125 the learned Judge catalogues instances of religious practices which are considered by a majority of people as wicked. He says: At all periods of human history there have been religions which have involved practices which have been regarded by large number of people as essentially evil and wicked. Many religions involve the ide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y on Liberty which is quoted at page 131 of the same report: The sole end of which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. It may be going too far to say that self-protection is "the sole end" which justifies any governmental action. But I think it must be conceded that the protection of any form of liberty as a social right within a society necessarily involves the continued existence of that society as a society. Otherwise the protection of liberty would be meaningless and ineffective. It is consistent with the maintenance of religious liberty for the State to restrain actions and courses of conduct which are inconsistent with the maintenance of civil Government or prejudicial to the continued existence of the community. The constitution protects religion within a community organized under a Constitution, so that the continuance of such protection necessarily assumes the continuance of the community so organized. This view makes it possible to reconcile religious freedom with ordered Government. The ultimate decision whether a given law infringes religious freedom or not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions were given that in view of the acute food situation expenditure on food grains should be cut down and the rituals and festivals should be reduced to their barest minimum. On 22-9-1950 the Board requested executive authorities in charge of Hindu religious institutions to use all available tanks for pisciculture unless there is a usage or custom in any particular locality against the utilisation of the tanks for such purpose. Then the order was later on modified by restricting it only to tanks which have hitherto been ordinarily used or leased out for fishing. This modification was on 3rd July 1951. Regarding the application of the surplus funds, the Board gave directions or issued orders to utilise them for various purposes wholly foreign to the objects for which the religious institutions were established e.g. for the Balamandir. On 28th October, 1950 an order was issued that surplus funds within the meaning of Section 67 of the earlier Act may be contributed to the support of the Balamandir and if there is no provision in the budget application may be made to the Board and they were directed to send the contributions to the Hony. Secretary. ₹ 10/- was directed to be sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a section thereof. Every religious sect therefore under the Article has the right to establish and to maintain institutions for religious and charitable purposes and to manage its affairs in the matter of religion. It is also permissible for such a sect to own and acquire movable and immovable property and to administer such property in accordance with law. The right to maintain implies the right to continue the institution according to the established usage, to carry on the worship and to make jt function in the manner in which it has been functioning according to long established usage. Except on the ground of public order and morality and health, this right cannot be in any manner affected by legislation. The religious sect or denomination considered as an autonomous body has got an unquestioned right to manage its own affairs in matters of religion. Whether an uncertain and fluctuating body could own and acquire property or not, a religious denomination being a definite body is permitted by the Constitution to own and acquire movable and immovable property also and to administer such property but in accordance with law. 41. It is contended that the denomination contemplat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued existence of the mutt for serving the spiritual needs of its members and the head of the mutt is the person in whom the power to administer the religious affairs and the administration of the property are vested. The superior is also a member of the community. The Article is concerned with religious institutions and the consideration of the question whether there is any beneficial ownership in the pro-perties of the institution by the members of the denomination is irrelevant as it is solely concerned with the institution which exists for spiritual and not for material benefit. There is no difficulty therefore in treating the Shivalli Brahmin community as a denomination entitled to protection of the right guaranteed under the Article. The right to administer religious and secular affairs has been unduly interfered with as. the head may not have even an effective voice in the appointment of persons to carry on the administration under him. The appointment of an agent or manager requires the approval of the Commissioner and if it was decided to frame a scheme or notify a temple, the Commissioner or the Government as the case may be, has the sole and exclusive right to appoint a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of levy of contribution under Subsection (1) is not less than ₹ 1000/-shall pay to the Government annually for meeting the costs of auditing its accounts such further sum not exceeding 1 1/2 per centum of its income as the Commissioner may determine. Sub-clauses 3 and 4 of Section 76 need not be referred to for the present. 45. Article 27 of the Constitution of India runs: No person shall be compelled to pay any taxes the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. 46. The first question is, whether the levy of five per centum of the income of a religious institution provided for in Section 76(1) of the new Act is a "tax" within the meaning of Article 27. 47. After analysing the concept of a tax in Chapter VI Vol. III of his Principles of Political Economy, Professor Nicholson said at p. 26.4: Professor Bastable's definition of taxation sums up in a convenient form the principal results of the foregoing analysis. 'A tax is a compulsory contribution of the wealth of a person or body of persons for the services of the public powers'. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bject by Section 76(1), Sub-clause 3 of Section 76 should remove it. It says: The annual payments referred to in Sub-sections (1) and (2) shall be made notwithstanding anything to the contrary contained in any scheme settled or deemed to be settled under this Act for the religious institution concerned. That this levy of contribution, as it is called by Section 76(1), is "for the services of the public powers" should also be clear. No doubt every religious institution is entitled to the services of the Government and their officers in accordance with the several sections of the new Act. But the liability of any given religious institution to pay the contribution authorised by Section 76(1) is not fixed with specific reference to the services enjoyed by that institution. As we have pointed out, it is a uniform levy that is contemplated and authorised, a liability imposed alike on every religious institution subject to the provisions of the new Act. Therefore, the expression "in respect of the services rendered by the Government and their officers" as used in Section 76(1) of the Act would really be the same as a "compulsory contribution for the services o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers in exercising the powers conferred on them by the Act. The fee contemplated by item 47 of List III of the Seventh Schedule to the Constitution need not necessarily be nominal. But the element of compulsion which is an integral part of a tax need not always be present in the fee. 53. Another contention put forward by the respondents was that it is not every tax that is prohibited by Article 27 of the Constitution, but only the taxes the proceeds of which are specifically appropriated in payment of expenses for the promotion of maintenance of any particular religion or religious denomination. And the learned counsel pointed out that there was no proof of any such appropriation with reference to the contribution authorised by Section 76 (1) of the new Act. This argument appears to overlook the provisions of the Constitution regulating the method by which the revenues of the State are merged in a Consolidated Fund, and thereafter appropriated by Appropriation Acts. Article 266 of the Constitution requires that all the revenues received by the State including the loans raised should form into a Consolidated Fund to be entitled the Consolidated Fund of the State and that no moneys ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation on the Government to provide -for the necessary appropriation in the Appropriation Acts to be passed by the Legislature. What Section 76 (I) provides for is a tax the proceeds of which are "specifically appropriated"--the appropriation is not the one contemplated by Article 204 of the Constitution-- for payment of expenses for the maintenance of Hindu religious institutions. That supervision of the Hindu Religious institutions is part of the maintenance within the meaning of Article 27 can admit of no doubt. It is not every item of the expenditure included In the maintenance of religious institutions that need come out of the tax, before a tax can be declared as offending the provisions of Article 27 of the Constitution. Thai the tax was utilised specifically for meeting a portion of the expenditure of the maintenance of its affairs, is enough to bring it within the mischief of Article 27. 55. Section 76 (1) no doubt imposes the liability to pay the tax on the religious institution. What Article 27 guarantees is the freedom of a person against compulsion to pay a tax prohibited by that Article. It is not necessary at present to go into the question whether a relig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also the specific sections thereof that came up for discussion; and we cannot, therefore, refuse to deal with the contention that Section 76 (1) is ultra vires the State Legislature. 59. There is very little substance in the argument that Article 30 comes in aid of the petitioner as the right under that Article is in noway infringed. 60. Now coming to the merits of the decision of the Board to frame a scheme, it is rather difficult to accept the petitioner's contention, that the board acted with bias when it decided to initiate proceedings to frame a scheme and ultimately decided to frame one. The petitioner filed, in support of the allegations in his affidavit, the affidavits of others suggesting that the President of the Board and one of the Commissioners were hand in glove with Mr. A. Lakshminarayana Rao and Sripadhachar when they visited Udipi. It is no doubt true that officers having control and supervision over such institutions should not give room to any reasonable apprehension in the minds of a litigant by moving closely with the persons of the rival party. The allegations made, even if true, would not justify an inference of bias on the part of the Board. 61. In ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powers and the decisfon of the Board is undoubtedly a perverse one. It had been held by this Court in Devasikamani Ponnambala Desikar v. Commissioner for H. R. E. Endowments, Madras', I.L.R. (1941) Mad 807, that a decision which is perverse really amounts to a non-exercise of the jurisdiction entrusted to the authority concerned. For this position, reliance was placed upon the decision in the 'Board of Education v. Rice', (1911) A.C. 179. What happened in the first case was while a scheme for the administration of a temple was in force, the Board initiated proceedings under Chapter VI-A, the notification proceedings under the earlier Act with the object of taking over the management from the hands of the trustee. The reasons given by the Board in support of the procedure adopted were examined by this Court and it was found that there were no valid reasons to justify the action of the Board in taking the drastic step of applying the notification proceedings in Chapter VI-A. The power of notification, it was pointed out, should not be exercised without a grave reason, as it was a drastic step calculated to deprive the trustee or the head of the Mutt of his right to mana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titions Nos. 379 and 380 of 1951: These two petitions relate to the temple at Chidambaram in South Arcot District and were filed for the issue of a Writ of Certiorari or direction or order in the nature of such a writ of certiorari against the first respondent, the State of Madras, calling for the records relating to the notification No. G. O. Ms. 894, Rural Welfare dated 28-8-1951 published in the Fort St. George Gazette on 4-9-1951 in the matter of Sri Sabhanayakar Temple, Chidambaram and quashing the said proceeding or in the alternative to issue a writ of mandamus, Or direction or order in the nature of such a writ of mandamus directing them to rescind the said notification. The second respondent in the petitions as originally filed was the Hindu Religious Endowments Board, Madras. When the Madras Hindu Religious and Charitable Endowments Act (Act XIX (19) of 1951), came into force on 30-9-51, the petitioners obtained leave to amend the petitions by substituting the Commissioner, Hindu Religious and Charitable Endowments in place of the Board and also included a prayer for the issue of a writ of mandamus or an order in the nature of such a writ directing the respondents to forb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter, the Akhasa Vani or the voice of the sky announced that he was the God himself that was missing i.e., Sabha Nayakar which is the present name of the presiding deity in the temple. Professor Wilson in his glossary says that the Dikshitars are really a branch of the Kannauj Brahmins whose abode is the modern Allahabad. 69. This temple has many peculiar features which are not common to the other temples in India. The management of the temple all along vested in the Dikshitars of whom there were 253 families at the time of the Manual now reduced to 250. Every married male member of the sect has an equal voice and control in the management of the temple. The right of management does not go by succession but is acquired by birth and marriage so much so every born and married becomes entitled to share the privilege and perquisites incidental to the management which is terminable only at his death. This is an inducement to early marriage of boys even at the age of 5. It is a close community as they do not marry from any outside families but only from among themselves. Hence the proverb noticed by Thurston Vol. I Castes and Tribes page 338, that a "Tillai girl never crosses the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to meet the cost of the utsavams. Besides these the Dikshitars undertake, on behalf of religious minded people, to perform an archana or abbishekam on stated days when cooked food is offered in the name of the devotee. The Dikshitar receives for this purpose a sum of money annually. He sends Vibhudi prasadam to the devotees, the food offering being taken by him. The Podu Dikshitars have nothing to do with this. It is the individual right of the Dikshitar who carries on the worship on behalf of the devotee. These are individual kattalais. There is yet another kind of kattalai for performing an archana, mainly on janma nakshatram days or any special days according to the choice of the devotee. Every Dikshitar has got his own clients for this purpose and he carries out the duties in return for which he obtains periodical payments from his clients, with this also the Podu Dikshitars have nothing to do. The only property owned by the temple besides the premises of the temple is 'Tiruvitakku Manyam'. These manyams were originally of the extent of about 200 acres distributed in various villages and consisted of wet and dry lands and also topes. Of these, lands to the extent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ras Hindu Religious Endowments Act (Act 1 of 1925) except Sections 38, 57, 58, 59, 64, 65, 66, 69 and 70. Section 38 dealt with hereditary trustees, 57 with submission of budgets and annual accounts, 58 and 59 related to schemes, 64 and 65 and 66 to finance and contribution and 69 and 70 to the removal of a trustee and costs. 73. In 1931 some of the worshippers moved the Board to frame a scheme and the Board started proceedings to frame a scheme in O. A. 644 of 1931, but owing to some technical defects the proceedings were dropped. On 2nd February 1932 the Board took up the matter 'suo motu' in O. A. No. 73 of 1932 and settled a scheme on 8th May 1933. The Dikshitars instituted O. S. 16 of 1923 in the District Court South Arcot questioning the scheme. The District Judge confirmed the scheme with certain modifications by the decree dated 9th September 1936. There was an appeal to this Court in A. S. 306 of 1936 and this Court agreed with the District Judge and confirmed the scheme with a slight modification. The judgment of this Court is dated 3rd April 1939 and is reported as 'Ponnuman Dikshitar v. H. R. E. Board, Madras AIR 1939 Mad 682 , The scheme was directed to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e had not been given any fair trial. It would not possibly be said that the scheme was not worked satisfactorily by the trustees and that therefore in the interests of proper administration of the temple it was necessary for the Board to take the drastic step of having the temple notified. We trust and hope that the Board would drop all proceedings in the matter and allow the scheme as modified by the District Court and as modified by us to be given a fair trial and would give the trustees a fair opportunity to carry on the administration in accordance with the scheme. Again in 1946 the Board seems to have revived the idea of starting proceedings under Chapter VI-A but they were again dropped on 11th August 1947. In 1950 proceedings under Chapter VI-A which terminated in the notifications now challenged were initiated by the Board and the Board after hearing the objections of the petitioners decided on 21st March 1951 to notify the temple as they were satisfied that a case for such a step was made out. There was an appeal as provided under the Act to the full Board and it was disposed of by order of the Board dated 11th July 1951. This was immediately followed by the notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is received by the Dikshitars 250 families of about 1500 members have to be fed and maintained from out of the earnings made by the Dikshitars from the temple. The Dikshitars, therefore, are collectively and individually entitled to the beneficial interests in the offerings made to the God & in the collections made for the archanas and the other aradhanas. Some of the collections are the joint property of the community of Podu Dikshitars while the others are their individual income. In the light of what has been said in C. M. P. No. 2591 of 1951 and in view of the authorities examined therein, it follows that the Dikshitars who are the citizens of India have individual proprietary rights and the question is whether the notification takes away or abridges any of their proprietary rights and whether such notification is an unreasonable restriction on their right to acquire, hold and dispose of property. 78. Looking at it from the point of view, whether the Podu Dikshitars are a denomination, and whether their right as a denomination is to any extent infringed within the meaning of Article 26, it seems to us that it is a clear case, in which it can safely be said that the Podu Diks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there was mismanagement could exercise the power notwithstanding that the religious institution was governed by a scheme settled by Court or by the Board even. The power to finally decide the advisability of notifying an institution is vested exclusively in the Board. No doubt, there is a right of appeal to the full Board provided under the earlier Act and under the new Act even that illusory right of appeal has been abolished. There is no right of suit permitted to question the action of the Board either under the earlier Act or under the provisions of the new Act. The Commissioner's decision is communicated to the Government under the new Act and the Government publishes the notification declaring the institution to be subject to the provisions of Chapter VI. The right of appeal to the Board under the earlier Act and the vesting of the exclusive jurisdiction without any remedy in the Commissioner and the Government to take the serious step of replacing the administration by the Dikshitars by an executive officer without a power of judicial review of any sort, is to say the least, unreasonable and unjust. It is a well established principle that a person cannot be a Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid that where legislative power should be exercised subject to limitations recognised and embodied in the Constitution, the limitations of the nature contained in Chapter VI of the new Act and Chapter VI-A of the earlier Act, cannot but be held to infringe the very fundamental principle of jurisprudence that no man should be a judge in his own cause and is therefore unreasonable and unjust. One has to only peruse the provisions of the notification dated 31st August 1951 to convince himself that the Podu Dikshitars' rights have been unjustly abridged and unreasonably restricted. The executive officer appointed under the notification is given the power and control over the properties and the servants of the temple and is vested with the right to conduct the festivals and other religious rites and rituals, of course, according to custom and usage. He is authorised to establish hundials for the collection of the voluntary and other offerings in the temple. He is given the right of suspending, removing or dismissing the servants of the temple and is empowered to receive all the incomes of the devasthanam and make all disbursements on its behalf, which must be brought into account. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not made available for the inspection of the officers of the Board. That the temple was in bad state of repair; that the Dikshitars did not take steps to enforce the Podu Kattalais; that no steps were taken to recover possession of the Tirvilakku manyam lands, that chit system for archanas was not introduced; that the vacant sites of the temple were not leased out for the sheds; that the electrical lighting arrangements in the temple were insufficient and of a temporary nature; that the drains around the temple and inside the shrine were not kept in a sanitary condition; that the D. C. B. was not maintained and so on, which are enumerated seriatim in the annexure to the Board's order dated 21-3-1951. These objections were answered by the Dikshitars. The full Board and the Board which Considered the matter in the first instance agreed in concluding that there were acts of mismanagement established which necessitated a notification of the temple. The appellate order concedes that except the Tiruvilakku manyam lands, there was no other property which was endowed for the performance of kattalai or services in the temple and the kattalaidars; meaning the Podu kattalaidars, were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovation wherever necessary. There are no other means of getting large income to the temple and to encroach upon what the Dikshitars receive for the arcbanas and worship and which is utilised by them for their sustenance and to require them to contribute from out of it large sums for the repairs and renovation of the temple seems to us wholly unjust. The introduction of the system of archana chits and the hundials for collections has been a source of trouble between the Dikshitars and the Board ever since the scheme was framed. No doubt the scheme directed the establishment of the hundials and the introduction of the chit system. But the scheme was not clear as to between whom and in what proportion should these collections be divided. Time and again the Dikshitars pointed out this difficulty whenever the Board insisted upon the introduction of the hundials and the chit system. It must be remembered that this is not a temple like the Tirupathi or Palani temple where in fulfilment of vows taken by the worshippers, money or other offerings are made in the hundials. The scheme referred to voluntary and compulsory offerings for the hundials. If however any amount is paid into the hands ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diwaram interest in the lands and the right to recover possession might have been barred. It has been represented to us in the course of the arguments that in fact the Podu Dikshitars consulted a lawyer who gave the opinion that it would be a sheer waste of money to institute suits for the recovery of possession of lands. This fact, it was stated was represented to the Board and it is alleged in the affidavit filed before us and was not seriously denied. The criticism therefore by the full Board in their order on appeal that the Podu Dikshitars persisted in refusing to take action for recovery of possession and they did not even obtain legal opinion on the advisability of recovering possession of the property and the lands seems to us to be unwarranted. It is needless to state that in those circumstances, it would have been wholly inadvisable to have launched the temple in an unnecessary and costly litigation when there is very little chance of success. 83. Regarding the jewels, there seems to be a misconception on the part of the Board when they state in the appellate order. Admittedly no jewel register is maintained and facilities were not given to the officers of the Board to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cember of each year are provided for in this rule. A meeting of all the Dikshitars is to be convened and the keys have to be produced by key holders and in the presence of the entire Podu Dikshitars two lists are to be prepared, one signed by the Utsava Moraikar should be kept in the safe room and the other should be kept by the Karyakar. This rule also has got several clauses providing for safe custody and also how loss owing to theft or negligence is to be punished. When the temple was renovated between 1885 and 1892. the safe room was considerably altered and strengthened and the 1900 rules make provision for safe custody of the jewels. Groups of ten Dikshitars have to be in charge of these special jewels for six months ending with the Tamil months of Ani and Margazhi (now, the number is twenty). They get their right by rotation according to the morai list; each is provided with a different lock and key and the Asthana room is locked with all the locks. Whenever occasion arises for taking out the-jewels such as Brahmotsavam or to enable a distinguished visitor to see them, a special meeting of all the Poduvars is convened and the Asthana Moraikars are directed to assemble at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rusted to it. The notification therefore must be quashed even on the merits. 87. In C. M. P. No. 2591 of 1951 we have enumerated the sections of the impugned new Act which are ultra vires the State Legislature in so far as they are made applicable to Mutts and Matathipathis and to the religious denominations for which those Mutts exist. In the case of Sri Sabhanayakar Temple at Chidambaram, with which we are concerned in this petition, it should be clear from what we have stated earlier in this judgment, that the position of the Dikshitars, labelled trustees of this temple, is virtually analogous to that of a Matathipathi of a Mutt, except that the Podu Dikshitars of this temple, functioning as trustees, will not have the same dominion over the income of the properties of the temple which the Matathipathi enjoys in relation to the income from the Mutt and its properties. Therefore, the sections which we held ultra vires in relation to Mutts and Matathipathis will also be ultra vires the State Legislature in relation to Sri Sabhanayakar Temple, Chidambaram and the Podu Dikshitars who have the right to administer the affairs and the properties of the temple. As we have already point ..... X X X X Extracts X X X X X X X X Extracts X X X X
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