08 May 1964
Supreme Court


Case number: Appeal (civil) 745 of 1963






DATE OF JUDGMENT: 08/05/1964


CITATION:  1965 AIR  502            1964 SCR  (8) 252  CITATOR INFO :  RF         1970 SC 470  (29)  RF         1975 SC1069  (23)  R          1975 SC2299  (633)

ACT: Constitution of India, Art. 19(1)(f)-Mutt-Framing of scheme- Repeal of old Act by new Act-Promulgation of Constitution in the meantime--Notice on Matadhipati to hand over  possession to  Executive Officer-Validity-Scheme, it must be tested  by fundamental  rights  conferred  by  the  Constitution-Madras Hindu  Religious and Charitable Endowments Act,  1951  (Mad. XIX of 1951), ss. 103(d), 62(3)(a)(Mad. 11 of 1923), s. 63.

HEADNOTE: The appellant, who was a Matadhipati, moved the High  Court- for a writ quashing the notice served on him in 1952 by  the Executive   Officer   to  band  ever  to  the   latter   the administration and the properties                             253 of the Mutt in enforcement of a scheme framed in 1939  under s. 63 of the Madras Act 11 of 1927.  The predecessor of  the appellant had filed a suit in the District Judge’s Court  to set  aside that scheme.  The suit failed and the scheme  was confirmed subject to minor modifications. In 1951 the Madras Hindu   Religious  and  Charitable  Endowments  Act,   1951, repealed  and  replaced the Madras Act 11 of 1927.   It  was urged on behalf of the appellant in the High Court that  the scheme contravened his fundamental rights guaranteed by  the Constitution.   The single Judge who heard the matter  found in  his  favour and held that the  scheme  contravened  Art. 19(1)(f) of the Constitution.  On appeal by the  respondent, the  Division  Bench  reversed the decision  of  the  Single Judge.  The High Court granted certificate to the  appellant to appeal to this Court.  It was contended that although the scheme  was  valid  as framed tinder  the  earlier  Act,  it incumbent  under  s.  103(d) of the Act  of  1951  that  the validity  of  the all the provisions of the scheme  must  be tested in the light of its provisions. Held:Section  103(d) of the Madras Hindu Religious  and



Charitable Endowments Act, 1951, properly construed,  merely meant  that  earlier schemes framed under Madras Act  It  of 1927 would be operative as though they were framed under the Act of 1951.  It was not intended by the section that  those schemes  must be examined and reframed in the light  of  the relevant provisions of the Act.  Section 62(3)(a) of the Act which  provided  for the modification of such  schemes  made this  amply  clear.  Unless the schemes  could  be  modified under that section they must be deemed to have been  validly made under the Act of 1951 and enforced as such. East  End  Dwellings Co. Ltd. v. Finsbury  Borough  Council, [1952] A.C. 109, considered. Although  the  scheme in question had  not  been  completely implemented before the Constitution, that was no ground  for examining  its  provision  in the light of Art.  19  of  the Constitution. The fundamental rights conferred by the Constitution are not retrospective in operation and the observation made by  this Court  in  Seth  Shanti Sarup v. Union  of  India,  are  not applicable to the present case. Seth  Shanti Sarup v. Union of India, A.I.R. 1955 S.C.  624, explained and distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 745 of 1963. Appeal from the judgment and order dated February 6, 1961 of the Andhra Pradesh High Court in Writ Appeal No. 71 of 1957. A.   V. Viswanatha Sastri, K. Rajendra Chaudhuri and K. R. Chaudhuri, for the appellant. 254 R.Ganapathy  Iyer  and  B.  R. G.  K.  A  char,  for  the respondents. May 8, 1964.  The Judgment of the Court was delivered by GAJENDRAGADKAR,  C.  J.The  appellant  Shri  Jagadguru  Kari Basava Rajendraswami of Gavi Mutt is the Matadhipati of  Sri Gavi Mutt which is a religious institution dedicated to  the propagation  and promotion of the tenets of the Veera  Saiva cult  of Hinduism.  This Mutt is situated at  Uravakonda  in the  district  of  Anantapur.  It appears that  on  the  6th September,  1939,  the Board of Hindu  Religious  Endowments constituted  under  the Madras Act 11 of  1927  (hereinafter called ’the earlier Act’) framed a scheme under s. 63 of the said Act for the proper administration of the said Mutt  and its endowments.  The predecessor-in-office of the  appellant then  filed suit No. 21 of 1939 on the file of the  District Judge, Anantapur for getting the said scheme set aside.  His suit  substantially failed, because the District  Court  was persuaded  to  make only a few minor  modifications  in  the scheme  subject  to which the scheme  was  confirmed.   That decision  was  taken  in appeal by the  predecessor  of  the appellant  to  the  High Court of Madras (A.S.  No.  269  of 1945).   During  the  pendency  of  the  said  appeal,   the appellant’s predecessor died, and the appellant then brought himself  on  the record as the legal representative  of  his deceased predecessor.  Ultimately, the appeal was  withdrawn and, therefore, dismissed. Though a scheme had been formulated by the Board under s. 63 of  the said Act, apparently no effective step was taken  to take  over  the  actual  management  of  the  Mutt  and  its endowments.  The said management continued as before and the fact that an Executive Officer had been appointed under  the scheme  made no difference to the actual  administration  of the Mutt.  It was on the 5th April, 1952, that the appellant



was  served  with a memorandum asking him to hand  over  the charge  of all the properties of the Mutt to  the  Executive Officer.  A notice issued by the Executive Officer  followed on the 16th April, 1952 by which the ippellant was  informed that the Executive                             255 Officer  would  take over possession.   Meanwhile,  what  is known as the Sirur Mutt case was decided by the Madras  High Court  and the appellant felt justified in refusing to  hand over possession to the Executive Officer on the ground  that the  scheme  under which possession was sought to  be  taken over  from  him was invalid inasmuch as it  contravened  the appellant’s  fundamental  rights guaranteed by  the  Consti- tution  which  had come into force from  the  26th  January, 1950. In   1951,  the  Madras  Hindu  Religious   and   Charitable Endowments  Act XIX of 1951 (hereinafter called ’the  latter Act’) repealed and replaced the earlier Act.  The  appellant moved the Madras High Court on the 28th April, 1952, by  his writ  petition and prayed for an appropriate  writ  quashing the   notice  served  on  him  by  the   Executive   Officer threatening to take over the administration of the Mutt  and its properties under the scheme.  This petition was heard by a single Judge of the said High Court and was allowed.   The learned  Judge  took the view that some  provisions  of  the Scheme contravened the appellant’s fundamental rights  under Art.  1 9 (1 ) (f ), and so, it could not be  enforced.   It was  no  doubt  urged  before the  learned  Judge  that  the appellant’s writ petition should not be entertained  because he  had  a definite adequate alternative  remedy  under  the latter Act, but this plea was rejected by the learned  Judge with  the  observation that where the fundamental  right  is clearly infringed, it is the duty of the Court to  interfere in favour of the citizen, unless there are reasons of policy which  make  it  inexpedient to  do  so.   Accordingly,  the learned  Judge directed that the scheme should  be  quashed. He,  however,  took the precaution to make  the  observation that his order did not mean that the Government was not free to make a scheme in consonance with he Constitutional rights of the Matadhipati. The  respondent,  the Commissioner of  Hindu  Religious  and Charitable   Endowments,  who  had  been  impleaded  by   he appellant  to  the writ petition along  with  the  Executive Officer, challenged the correctness of the decision rendered by  the  learned Judge in the writ -petition  filed  by  the appel- 256 lant.   This appeal succeeded and the Division  Bench  which heard  the  said appeal, held that the  scheme  having  been framed as early as 1939 under the relevant provisions of the earlier Act which was valid when it was enacted, could’  not be  challenged  on the ground that some  of  its  provisions contravened the fundamental right guaranteed to the citizens of  this country under Art. 19.  Certain  other  contentions were raised before the appellate Bench by the appellant  and they were rejected.  It is, however, not necessary to  refer to  the said contentions, because they have not been  argued before  us.  Having taken the view that the scheme  when  it was  framed  was  valid, the appellate  Bench  reversed  the decision of the single Judge, alowed the respondent’s appeal and  directed that the writ petition filed by the  appellant should  be dismissed.  It is against this, decision  of  the Division  Bench  that the appellant has come to  this  Court with a certificate granted by the said High Court. Before dealing with the points which have been raised before



us by Mr. Sastri on behalf of the appellant, we may  briefly indicate  the  nature of the scheme which  has  been  framed under  the  relevant provisions of the  earlier  Act.   This scheme opens with the statement that the Board was satisfied that  in the interests of the proper administration  of  the Mutt and all the endowments, movable and immovable belonging thereto,  a  scheme should be settled, and  so,  the  Board, after  consulting  the  Matadhipati of the  Mutt  and  other persons  having  interest therein, proceeded  to  frame  the scheme.   It was intended that the scheme should  come  into force  on  the 6th September, 1939, when it  was  framed  It appears  that either because the Executive Officer  did  no, take effective steps to implement the scheme, or because the predecessor  of the appellant filed a suit  challenging  the scheme,  the  scheme in fact has not been  implemented  till today.  When the notice was served on the appellant in  1952 and  it looked as if the Executive Officer would  take  over the  administration  of  the Mutt and  its  properties,  the present  writ  proceedings  commenced  and  throughout   the protracted period occupied by these proceedings. the  status quo has continued. 257 The  scheme  consists of 15 clauses and,  in  substance,  it entrusts  the administration of the Mutt and all its  endow- ments  in  the  hereditary trustee  and  two  non-hereditary trustees appointed by the Board.  These latter are liable to be  removed by the Board for good and sufficient  cause  and the  Board’s  order  in that behalf has to  be  final.   The Board is authorised to appoint an Executive Officer for  the on  a  salary  of Rs. 60/- per  month.   Such  Executive  is required  to  furnish  security in the sum  of  Rs.  5001the satisfaction  of the Board.  He has to be in charge  of  the day  to  day  administration of the Mutt and he  has  to  be answerable  to the trustees.  The trustees are  required  to meet once, a month in the premises of the Mutt for discharg- ing  their duties.  They are given the power to inspect  the accounts maintained by the Executive Officer- and  generally ,supervise  his work.  The Board is also given the power  to issue  directions from time to time regulating the  internal management  of the Mutt.  It would thus be seen that  though the  scheme was framed in 1939, in essential features it  is similar   to  the  pattern  of  schemes  which   have   been subsequently introduced either by legislation or by judicial decisions in respect of the management of public  charitable institutions like the present Mutt, Mr.  Sastri  does  not dispute the fact  that  the  relevant provisions  of the earlier Act as well as the scheme  framed under  them were valid at the relevant time.   He,  however, argues that the earlier Act has been revealed by the  latter Act  XIX of 1951, and according to him, it is  necessary  to consider  whether the present scheme is consistent with  the appropriate  and  relevant provisions of  this  latter  Act. This  argument  is based on the provisions contained  in  s. 103(d)  of  the  latter Act.   This  section  provides  that notwithstanding  the  repeal of the Madras  Hindu  Religious Endowments  Act  No.  11 of 1927,  all  schemes  settled  or modified by a Court of law under the said Act or under s. 92 of  the  Code of Civil Procedure, 1908, shall be  deemed  to have  been settled or modified by the Court under  this  Act and  shall  have effect accordingly.  The argument  is  that though the present scheme was framed under the provisions of the earlier Act. it must now be deemed to be a scheme  which 51 S.C.-17 258 has been settled or modified by the Court under this  latter



Act, and so, it is necessary to enquire whether all the pro- visions of the scheme are consistent with the material  pro- visions  of the latter Act.  If it is found that any of  the said   provisions   are  inconsistent  with   the   relevant provisions of the latter Act, they must be modified so as to make them consistent with the said provisions. In  support  of this argument, Mr. Sastri  has  invited  our attention  to  the  observations made  by  Lord  Asquith  of Bishopstone  in  East  End Dwellings Co.  Ltd.  v.  Finsbury Borough  Council(1)  that  "if you are bidden  to  treat  an imaginary state of affairs as real, you must surely,  unless prohibited   from  doing  so,  also  imagine  as  real   the consequences  and incidents which, if the putative state  of affairs  bad  in fact existed, must inevitably  have  flowed from   or   accompanied  it."  Basing   himself   on   these observations,  Mr.  Sastri  has urged that  if  the  deeming provision prescribed by s. 103 (d) is given its full effect, there  would be no scope for refusing to apply the test  for which he contends. We are not impressed by this argument.  It is no doubt  true that s. 103(d) provides that a scheme settled or modified by a  Court under the earlier Act shall be deemed to have  been settled  or modified under &a latter Act; but the effect  of this  provision  merely is to make the schemes  in  question operative as though they were framed under the provisions of the  latter Act; the intention was not to examine  the  said schemes  once again by reference to the relevant  provisions of  this  latter Act and re-frame them so as  to  make  them consistent with these provisions.  ’This position appears to be clear if we examine other sub-clauses of s. 103.  Section 103(a)  which  deals  with  rules  made,  notifications   or certificates   issued,   orders  passed,   decisions   made, proceedings or action taken, schemes settled and things done by  the  Government,  the Board or its President  or  by  an Assistant Commissioner under the earlier Act, provides  that the  said rules, notifications, etc. in so far as  they  are not  inconsistent  with the latter Act, shall be  deemed  to have been made, issued, massed, taken, settled or done by (1)[1952] A.C. 109 at p. 132.                             259 the appropriate authority under the corresponding provisions of  this latter Act and shall, subject to the provisions  of clause  (b) have effect accordingly.  Having  thus  provided for  the continuance of rules, notifications, orders,  etc., in so far as they are, not inconsistent with the  provisions of  the  latter Act, s. 103(b) has made  provision  for  the modifications  in the said rules. notifications and  orders. In other words, the scheme of s. 103(a) & (b) clearly brings out  the fact that where the legislature wanted  the  conti- nuance  of  the  action taken under the  provisions  of  the earlier Act only if the said action was consistent with  the relevant  provisions of the latter Act, it has so  provided. The  same  type of provision is made by s. 103(f),  (g)  and (h).   If we examine s. 103(d) in the light of  these  other provisions.  it  would  be clear that the  question  of  the consistency  or otherwise of the schemes to which s.  103(d) applies,  is treated as irrelevant, because no reference  is made to the said aspect of the schemes.  In other words, the schemes  to which s. 103(d) applies have to be deemed to  be settled  or modified under the provisions of the latter  Act without  examining  whether all the provisions of  the  said schemes  are necessarily justified by, or  consistent  with. the provisions of this latter Act; and that is why we do not think  Mr.  Sastri is right in contending that  the  deeming clause  prescribed by s. 103(d) necessitates an  examination



of the said schemes before they are allowed to be  continued as  though  they were settled or modified under  the  latter Act. This  does  not, however, mean that there  is  no  provision prescribed  by the latter Act for the modification  of  such ,schemes.   Section 62(3)(a) specifically provides that  any scheme  for  the administration of a  religious  institution settled or modified by the Court in a suit under sub-section (1)  or  on an appeal under sub-section (2)  or  any  scheme deemed  under  s. 103, clause (d), to have been  settled  or modified  by  the  Court may, at any time,  be  modified  or cancelled  by the Court on an application made to it by  the Commissioner,  the  trustee or any person  having  interest. This provision clearly brings out the fact that if a  scheme governed  by  s.  103 (d) is deemed to  have  been  made  or sanctioned tinder the provisions of the latter Act 260 and  thus continued, modifications in it can be effected  by adopting  the procedure prescribed by s. 62(3).   It)  other words, a scheme like the present is automatically  continued by  operation of s. 103(d), but is liable to be modified  if appropriate steps are taken in that behalf under s. 62(3  ). Reading s. 103(d) and s. 62(3) together, it seems to us that Mr.  Sastri’s  argument  that  the  consistency  of  the  be examined  in  writ proceedings, cannot be  entertainment  In fact, unless modifications are made in the scheme unders.   62(3), the scheme as a whole, will be deemed to been made under the latter  Act and will be deemed to have valid  scheme.   That clearly  is the purpose of s.we do not think we  are  called upon  to  consider  the further contentions  raised  by  Mr. Sastri   that  came  of  the  clause  in  the   scheme   are inconsistent with theprovisions of the later Act. There  is  one  more point to which refrence  must  be  made before we part with this appeal.  Mr. Sastri contended  that though  the scheme may have been valid when it  was  framed, since ’it was not actually enforced before the 26th January, 1950,  it  is-,  open  to the  appellant  to  challenge  the validity  of the scheme oil the ground that it deprives  him of  his fundamental right under Art. 19(1)(f) and  as  such, invalid.   Mr. Sastri concedes that the  fundamental  rights guaranteed  by  the Constitution, are not  retrospective  in operation;  but that, he say,-,, is no answer to  his  plea, because  the  deprivation of his property rights  is  taking place for the first time in 1952 and as such, it is open  to the  challenge  that  it is invalid on the  ground  that  it contravenes his fundamental right under Art. 19 (1) (f). In  support  of  this argument, Mr.  Sastri  has  relied  on certain  observations  made by Mukherjea J. in the  case  of R.S.  Seth Shanti Sarup v. Union of India and Ors. (1).   In that  case, a partnership firm known as  Lallamal  Hardeodas Cotton Spinning Mill Company of which the petitioner was,  a partner.  used  to carry on the business of  production  and supply of cotton yam.  When it was found that the Mill (1) A.I.R. 1955 S.C. 624. 261 could  be run only at a loss, it was closed on  19th  March, 1949.   Thereafter, on the 21st July,. 1949, the  Government of   U.P.   passed   an   Order   purporting   to   exercise its  .authority   under  s.  3(f)  of  the  U.P.  Industrial -Disputes  Act, 1947,  by which one of the partners  of  the firm  was  appointed  as   "authorised  controller"  of  the undertaking.   The said order directed the  said  authorised controller  tO  take over’ possession of the  :Mill  to  the exclusion of the other partners, and run’ it subject to  the general   supervision of the  District Magistrate,  Aligarh.



In 1952, the Union of India passed an order under s. 3(4) of the   Essential  Supplies  (Temporary  Powers)  Act,   1946, appointing  the  same person as  an  authorised  controller, under the provisions of that section, and issued a direction to him to run. the said undertaking to the exclusion of  all the  other Farmers.  It was then that the  petitioner  moved this Court by writ petition under Art. 32 and challenged the validity of both the orders on  the ground that they were illegal and. that  they invaded  his fundamental right.  His plea was upheld and both       the impugned orders were quashed.     In  appreciating  the  effect of this  decision,  it  is necessary  to bear in mind one crucial fact on  which  there was  no dispute between-the parties in that case,  and  that fact was that both the. impugned orders did not come with in the  purview of, and were not warranted ’by, the  provisions of/he relevant Acts, under which they were purported to have been  issued.   In  other  words, it  was  conceded  by  the Government  that  the impugned orders were invalid  in  law. Even so, it was urged that though the orders may be invalid, they  cannot be challenged .under Art. 32 inasmuch  as   the first  invasion of the petitioner’s right  was made in  1949 when the Constitutional guarantee was not available to  him. In. repelling this contention, Mukherjea, J., observed  that the order against which the petition Was primarily  directed was  the order of the Central Government passed in  October. 1952.  and  that  was a complete and clear  answer  to   the contention  raised by the learned   Attorney-General.   Even so,  the  learned Judge proceeded to observe  that  assuming that  the deprivation took place in 1949 and at a time  when the Constitution had not come into force. the order effect- 262 ing the, deprivation which continued from day to day must be held to have come into conflict with the fundamental. rights of  the  petitioner as soon as tile Constitution  came  into force and became void on and from that date under Art. 13(1) of  the Constitution.  It is on these observations that  Mr. Sastri’s  argument  is founded.  With respect,  we  are  not prepared  to hold that these observations were intended.  to lay  down an unqualified proposition of law that even  if  a citizen  was deprived of his fundamental rights by  a  valid scheme  framed under a valid law at a time when the  Consti- tution  was not in force, the mere fact that such  a  scheme would continue to operate even after the 26th January, 1950, would  expose it th the risk of having to face  a  challenge under Art. 19.  Ifthe broad and unqualified proposition  for which Mr. Sastri contends is accepted as true, then it would virtually  make the material provisions of the  Constitution in respect of fundamental rights retrospective in operation. In the present case, the scheme was framed and the Executive Officer  was appointed as early as 1939.  If  the  Executive Officer could not take over the actual administration of the Mutt and its properties, it was partly because the appellant has continuously challenged the implementation of the scheme by  legal  proceedings and partly because he  has  otherwise obstructed  the said implementation.  But it is  clear  that when  the  scheme  was framed and a challenge  made  by  the appellant  to  its  validity failed in courts  of  law.  his property  rights  had been taken away.  The  fact  that  the order  was not implemented does not make any  difference  to this legal, position.  If Mr. Sastri’s argument were  right, all such schemes, though implemented and enforced, may still be open to challenge on the ground that they contravened the Matadhipati’s fundamental rights under Art. 19.  Such a plea does  not  appear  to  have ever been  raised  and,  in  our



opinion, cannot be validly raised for the simple reason that the  further damental rights are not retrospective in  their operation.  The observations on which Mr. Sastri relies must be  read in "he light of the relevant fact to which we  have just referred.  The deprivation of the petitioner’s property rights  was  brought about by invalid orders and it  was  in respect of such invalid                                 263 orders that the Court held that the petitioner was  entitled to  seek the protection of Art. 19 and invoke the  jurisdic- tion  of this Court under Art. 32.  In our  opinion,  there- fore, there is no substance in the contention that since  in the present case, the scheme has not been completely  imple- mented till 1952, we must examine its validity in the  light of the fundamental rights guaranteed to the appellant  under Art. 19 of the Constitution. The result is the appeal fails and is dismissed with costs. Appeal dismissed,.