20 January 1956
Supreme Court


Case number: Writ Petition (Civil) 651 of 1954





RESPONDENT: THE STATE OF ORISSA(With connected petitions)

DATE OF JUDGMENT: 20/01/1956


CITATION:  1956 AIR  432            1956 SCR   43

ACT: Constitution of India, Art. 19(1)(f )-Orissa Hindu Religious Endowments Act, 1951 as amended by Orissa Act XVIII of 1954- SS. 42(1)(b), 42(7), 44(2) and s. 79(A)-Whether ultra  vires the Constitution.

HEADNOTE: Sections 38 and 39 of the Orissa Hindu Religious  Endowments Act,  1939 (Orissa Act IV of 1939) as amended by Orissa  Act XVIII of 1953 were declared unconstitutional and void by the Supreme  Court  in Mahant Sri Jagannath Bamanuj Das  v.  The State  of  Orissa ([1954] S.C.R. 1046) on  the  ground  that legislation  in  so far as it authorised the  framing  of  a scheme  by  the Commissioner along with his  associates  and declared  such determination as final without any scope  for correction  thereof by judicial intervention was  an  unrea- sonable restriction on the right of the head of the Math  as respects his interest in the Math which is a, right to  bold property  within  the  meaning  of  Art.  19(1)(f)  of   the Constitution. After  the judgment dated 16th March 1954 delivered  by  the Supreme  Court in the Case Of Mahant Sri  Jagannath  Bamanuj Das v. The State of Orissa, ([1954] S.C.R. 1046) the  Orissa Legislature  passed the Orissa Act XVIII of 1954  purporting to  amend not the 1939 Act which was then in  operation  but the  Orissa  Act  II of 1952 which had not  then  come  into force. The  Orissa  Act XVIII of 1954 received the  assent  of  the President  on the 2nd December 1954 and came into  force  at once  and  thus the Orissa Act II of 1952 became  pro  tnnto amended  and  modified.  The 1952 Act so amended  came  into force from the 1st January 1955 by virtue of a  notification dated  22nd December 1954 issued under the provisions of  s. 1(3)  thereof which provided that the Act wag to  come  into force  on  such  date  as  the  State  Government  may.   by notification provide. The five petitions under Art. 32 of the Constitution in  the present case challenged the validity of various sections  of the Orissa Act II of 1952 as amended by Act XVIII of 1954 on



the principles laid down in the case of Mahant Sri Jagannath Bamanuj Das v. The State of Orissa, ([1954] S.C.R. 1046).  Held,  that ss. 42(1)(b), 42(7), 44(2) as well as s.  79(A) of  Orissa Hindu Religious Endowments Act, 1951 (Orissa  Act II  of 1952) as amended by Orissa Act XVIII of 1954 are  not unconstitutional and 44 ultra vires and the contention that the provisions of ss. 42 and  44 of the present Act to the effect (1) that  a  scheme can  be framed by the Commissioner alone on a report of  the Assistant Commissioner on such inquiry as he thinks fit  and not  by  the Commissioner in association with  one  or  more Government  Officers to be appointed for the purpose by  the Government   (2)  that  there  is  no  right  of  suit   for challenging  the validity or the correctness of  the  scheme framed  by the Commissioner but there is only an  appeal  to the   High   Court,  still  continue  to   be   unreasonable restrictions on the right of Mathadipathi as in the case  of Mahant  Sri  Jagannath Bamanuj Das v. The  State  of  Orissa [(1954) S.C.R. 1046] is without substance. In the initial stage of the framing of the scheme under  the provisions  of  the  present  Act  there  is  first  of  all something  in  the  nature of a  preliminary  enquiry  by  a judicial  officer  of  the  rank of a  Munsif  and  this  is followed   by  a  regular  and  full  enquiry   before   the Commissioner who is of the rank of a Subordinate Judge.  The enquiry  before  the Commissioner is assimilated to  and  is governed by the provisions relating to the trial of suits by enjoining that, as far as may be, it is to be in  accordance with the provisions of the Code of Civil Procedure  relating to  trial of suits.  ’While, therefore, under the prior  Act the enquiry before the Commissioner might well have been  of the nature of an executive enquiry by an executive  officer, the enquiry under the present Act is by itself in the nature of a judicial enquiry by judicial officers followed up by  a right of regular appeal to the High Court.  A scheme  framed with  reference  to such a procedure cannot  ipso  facto  be pronounced   to  be  in  the  nature  of   an   unreasonable restriction  on the rights of the Mahant.   The  legislature might  well have thought that instead of making the  enquiry before  the  Commissioner more or less in the  nature  of  a preliminary  executive  enquiry  to be followed  up  by  the affected  Mahant by a regular , suit in the Civil Court,  it is  much more satisfactory and in the public  interests,  to vest  the enquiry before the Commissioner himself  with  the stamp  of  greater  seriousness  and  effectiveness  and  to assimilate  the  same to a regular enquiry by  the  judicial officer according to judicial procedure and then to  provide a right of direct appeal to the High Court. The right of appeal to the High Court is given in very  wide and  general terms because the appeal can be both  on  facts and on law. Mahant  Sri Gadadhar Bamanuj Dos v. The Province of  Orissa, (I.L.R [1949] Cuttack 656), Mahant Sri Jagannath Bamanuj Das v.   The   State  of  Orissa  ([1954]   S.C.R.   1046)   and Commissioner,  Hindu  Beligious Endowments,  Madras  v.  Sri Lakshmindra  Thirtha  Swamiar of Sri Shirur  Matth,  ([1964) S.C.R. 1006], referred to.

JUDGMENT: ORIGINAL JURISDICTION: , Petitions Nos. 651 of 1954 and 39, 46, 51 and 176 of 1955. 45



Under  Article  32  of the Constitution  of  India  for  the enforcement of fundamental rights. S.   P. Sinha (S.  D. Sekhari, with him), for the petitioner in Petition No. 651 of 1954. S.   P., Sinha (B.  K. Saran and M. M. Sinha, with him), for the petitioner in Petition No. 39 of 1955. B.   K.  Saran  and  M.  M. Sinha,  for  the  petitioner  in Petition No. 46 of 1955. S.   D.  Sekhari, for the petitioner in Petition No.  51  of 1955. R.   Patnaik,  for  the petitioner in Petition  No.  176  of 1955. M.   C.  Setalvad, Attorney-General of India (R.   Ganapathy Iyer and P. G. Gokhale, with him) for respondents in all the Petitions. 1956.  January 20.  The Judgment of the Court was  delivered by JAGANNADHADAS  J.-These are five petitions under article  32 of the Constitution by the heads of five Maths in the  State of  Orissa  of  which  four  known  as  Mahiparakash   Math, Uttaraparswa  Math, Dakshinaparswa Math and  Radhakant  Math are situated in Puri and the fifth known as Manapur Math  is near  Tirtol  in Cuttack district.  In all  these  petitions certain provisions of the Orissa Hindu Religious  Endowments Act,  1951 (Orissa Act II of 1952) as amended by Orissa  Act XVIII  of 1954 are challenged as being unconstitutional  and ultra vires.  Since the questions raised are mostly  common, all the petitions are dealt with by this single judgment. These  petitions  have a background of previous  history  of legislation and litigation which it is necessary to set  out in  order  that  the  questions  raised,  may  be   properly appreciated.   The  first  statutory  interference  by   the Provincial   Legislature  with  the  management   of   Hindu religious  endowments  in  Orissa was by  the  Orissa  Hindu Religious Endowments Act, 1939 (Orissa Act IV of 1939) which came into operation 46 on  the 31st August, 1939.  This was modelled on  a  similar Act  operating  in  the  Province  of  Madras  at   thetime. ThevalidityoftheActasawholeasalso,  of  certain   provisions thereof we’re challenged by the Mahants of the various Maths in Orissa, about 30 in number, by instituting a suit in  the year  1940.  The suit was on behalf of the individual  Maths who  figured as plaintiffs (including three of  the  present petitioners,    viz.    Mahants   of   Mahiparakash    Math, Dakshinaparswa  Math  and  Radhakanta Math) and  also  in  a representative  capacity under Order I, rule 8 of the  Civil Procedure  Code. (Vide printed record of this Court in  Case No.  I  of 1950).  That suit was dismissed by  the  District Judge of Cuttack and came up in appeal to the High Court  of Orissa.   The High Court upheld the validity of the Act  and of  the various sections thereof by its judgment  dated  the 13th  September,  1949,  which is  reported  in  Mahant  Sri Gadadhar  Ramanuj  Das  v. The Province  of  Orissa(1).   An  appeal  was filed therefrom to the  Supreme  Court  in Jaiiuary,’1950,  which was numbered as Case No. I  of  1950. This appeal remained pending for over four years and came up for  final hearing in February, 1954.  During the period  of pendency  of  the appeal the Orissa Legislature  passed  two further  Acts relating to Hindu religious  endowments.   The first of them was Orissa Act II of 1952 which was an Act  to "amend   and  consolidate  the  law  relating  to  the   ad- ministration and governance of Hindu religious  institutions and  endowments  in the State of Orissa" and  which  on  its coming  into force was intended to repeal  the  pre-existing



Orissa  Act  IV of 1939.  This Act became law  on  the  16th February, 1952, by the assent of the President.  It did  not however  come into force at once on account  of  sub-section (3)  of section I therein which provided that the Act is  to "come  into force on such date as the State Government  may, by  notification, direct".  No such notification was  issued during  the  pendency of the appeal in  the  Supreme  Court. This Act was, in fact, brought into force much later,  i.e., only as from the 1st Janu- (1)  I.L.R. [19491 Cuttack 656. 47 ary,  1955,  by a notification of the Government  of  Orissa dated  the  22nd  December, 1954, published  in  the  Orissa Gazette dated the 31st December, 1954.  While thus the  1952 Act  remained  on the statute book without its  coming  into force., other independent statutory provisions amending  the Act  of  1939 were passed and brought into  operation.   The first of them was Orissa Ordinance No. 11 of 1953 which  was promulgated by the Governor of Orissa on the 16th May, 1953. This  was  later superseded and substituted  by  Orissa  Act XVIII of 1953 which came into operation on the 28th October, 1953.  By these two successive legislative measures, the Act of 1939 was amended in certain respects and it is the Act so amended  that was in operation during the period  from  May, 1953 to March, 1954, falling within the later portion of the pendency  of Case No. I of 1950 in the Supreme Court.   Some time   in  1953,  subsequent  to  the  month  of  May,   the Commissioner of Hindu Religious Endowments, Orissa,  appears to have initiated proceedings for the framing of schemes  in respect  of  a number of Matbs, and  schemes  were  actually framed  during  this  period  as  regards  the  four  Maths, Mahiparakash,  Uttaraparswa, Daksbinaparswa  and  Radhakanta comprised  in Petitions Nos. 651 of 1954, 49, 46 and  51  of 1955,   respectively.   These  schemes  were  brought   into operation and the administration of some of these Matbs  was taken  over by the Trustees under the  schemes.   Thereafter Mahants  of  three  of  the  affected  Maths,  Mahiparakash, Uttaraparswa and Radhakanta, who are also petitioners before us,  filed  applications under article 226 before  the  High Court  of  Orissa challenging the alidity  of  the  schemes. Those  applications were dismissed by the High Court on  the 17th February, 1954.  Meanwhile the Mahant of Dakshinaparswa Math who was a petitioner in the High Court and also  before filed along with another Mahant, a petition under icle 32 of the  Constitution  to this Court on the  d  December,  1953, challenging  the Act then in force as being in violation  of their  fundamental  rights.  This was Petition  No.  405  of 1953.  This petition as 48 well  as Case No. 1 of 1950, referred to above, came up  for hearing,  together, in this Court on the 9th, 10th and  11th February,   1954.   Judgment  of  this  Court  therein   was delivered on the 16th March, 1954, and is reported in Mahant Sri  Jagannath Ramanuj Das v. The State of Orissa(2).  As  a result thereof, sections 38 and 39 of Orissa Act IV of  1939 as amended in 1953, under which the schemes were framed were declared unconstitutional.  Accordingly, the schemes  became invalid  and therefore the possession of such of  the  Matbs which had been, taken over under the schemes was restored to the  Mahants.  (It  may be mentioned  in  passing,  in  this context,  that the judgment of this Court refers  to  Orissa Act  II  of 1952 as being the one in force at the  time  and whose  provisions  were under consideration  by  the  Court. This  is  a  slip.  The Act then in force  was,  as  already stated, the Act of 1939 as amended in 1953.  That this is  a



slip  in the judgment is admitted before us.  That does  not however in any way detract from the reasoning and the  bind- ing  character  of the judgment, since as a fact  what  were really  referred  to were the sections of the  1939  Act  as amended in 1953).  Now, after the judgment of this Court was delivered  in  March, 1954., the  Orissa  Legislature  again intervened and passed another Act, Orissa Act XVIII of 1954. This  Act purported to amend not the 1939 Act which  was  by then  in  operation but the 1952 Act which had not  by  then come  into  force. -Orissa Act XVIII of  1954  received  the assent of the President on the 2nd December, 1954; and  came into  force  at  once and therefore Orissa Act  II  of  1952 became  pro  tanto amended and modified.  By that  date  the 1952  Act so amended was awaiting the issue of  notification under  section  1(3) thereof for being brought  into  force. This  notification, as alreay stated, was ultimately  issued on  the 22nd December. 1954, bringing Orissa Act II of  1952 as  amended  Act  XVIII  of 1954 into  force  from  the  1st January,  1955, and thereby repealing Orissa Act IV of  1939 amended  in  1953.  The first of the  petitions  before  us, relating to Mahiparakash Math was filed in this (1)  [1954] S.C R. 1046 49 Court, anticipating this notification, while the other  four were  filed after the notification was issued.   As  already stated,  all  these  petitions  challenge  the  validity  of various  sections  of  Act 11 of 1952  as  amended  in  1954 (hereinafter referred to as the present Act).  The challenge is  entirely  based upon the principles laid  down  by  this Court  in Mahant Sri Jagannath Ramanuj Das v. The  State  of Ori8sa(1).   The’  above  is the  history  of  the  relevant legislation and the connected parallel litigation.   The  main attack is in respect of sections 42 and 79-A  of the  present  Act  relating to  the  schemes  for  religious institutions  of  the kind with which we  are  concerned  in these  petitions.   There  can  be no  doubt  that  the  two sections  apply  to  these  Maths.   The  phrase  "religious institution"  occurring  in section 42 has been  defined  as meaning (also) "a math and endowments attached thereto".   A Math is "an institution  succession to the headship of which devolves in accordance with the directions of the founder or is  regulated  by  custom" and a hereditary  trustee  is  "a trustee  of  an  institution  succession  to  whose   office devolves   by custom or is specifically provided for by  the founder".   A  Math  is therefore  a  religious  institution presided  over or managed by a hereditary trustee so  as  to render  section  42 (1) (b) applicable.  To  appreciate  the ground of attack it is necessary to trace the changes in the provisions  relating  to  the framing of  schemes  for  such institutions in the successive legislative measures.  In the Act  as it, stood in 1939 the provisions in this behalf  are sections  38,  39  and 40.  Since the attack  is  mainly  as regards  the procedure for the framing of the scheme, it  is sufficient to notice what the gist of these three provisions is  in so far as it relates to the procedure for an  enquiry to  frame a scheme.  Under these three sections the  enquiry is  to be held by the Commissioner for Endowments  appointed under  the Act.  For this purpose he is to function  jointly with  one  or  more  persons in the  service  of  the  Crown appointed by the Provincial Government in (1)  [1954] S.C.R. 1046. 7 50 this  behalf.   The  enquiry has to be  conducted  "in  such manner  as  may be prescribed".  In making the  enquiry  the



Commissioner  and the person or persons associated with  him therein  are to consult the trustee and the  persons  having interest.   After  the  scheme  is  settled  and  the  order determining the scheme is published in the prescribed manner the  trustee or any person having interest may,  within  six months of the date of such publication, institute a suit  in the  court  to modify or set aside such  order.   The  order settling  a scheme is final and binding on the  trustee  and all  persons having interest, subject to the result  of  the suit, if any, as above mentioned.  Of course, the result  of the suit itself would, under the general law, be subject  to further  appeal  under  the  Civil  Procedure  Code  in  the ordinary way.   Changes  were  made in these provisions in 1953  first  by Orissa Ordinance II of 1953 and then by Orissa Act XVIII  of 1953  as  already  stated.  The modification  is  that  sub- section  (4)  of section 39 which provided for  a  right  of suit,  by  the  trustee or the  person  interested,  in  the regular civil court (with the concomitant further appeals to higher courts) was deleted and the following was substituted as sub-section (4) of section 39:   "Every order under this section shall be published in  the prescribed manner and the order so passed shall be final and binding on the trustee and all persons having interest".   As a consequence thereof section 40 of the 1939 Act, which stated  that  "subject to the result of the suit  the  order settling  a  scheme is final", was omitted.  The  result  of these  two changes was that once the Commissioner  with  the assistance of one or more Government officers who were to be specially  nominated,  settled  a scheme  after  making  the prescribed  enquiry, that order was not open to any  further question  or correction in the ordinary courts.  It  was  at this  stage that the validity of the provisions relating  to the  framing  of a scheme came up for  consideration  before this  Court  in  March,  1954.  This  Court  held  that  the legislation in so far as it authorised the 51 framing  of  a  scheme by the Commissioner  along  with  his associates and declared such determination as final  without any  scope for correction thereof by judicial  intervention, was an unreasonable restriction on the right of the head  of the  Math  with  reference  to his  interest  in  the  Math. Accordingly sections 38 and 39 of the Act then in force were struck  down as unconstitutional and invalid.   The  present provisions  which  are the result of a later  amendment  are contained  in sections 42 and 44 of the present Act and  are substantially different.  The relevant portions thereof  are as follows:   "42.  (1) Whenever there is reason to believe that in  the interest   of   the  proper  administration   of   religious institution a scheme may be settled for it, or when not less than  five  persons having interest make an  application  in writing  stating  that  in  the  interests  of  the   proper administration of a religious institution a scheme should be settled   for   it,  the  Assistant  Commissioner   or   the Commissioner,  as the case may be, shall proceed to frame  a scheme in the manners hereinafter provided-   (a)   (b)  in the case of a religious institution presided  over or   managed   by  a  hereditary  trustee,   the   Assistant Commissioner  shall make such enquiry as he thinks  fit  and submit  his  report to the Commissioner who  shall  hold  an enquiry  in the manner prescribed and so far as may  be,  in accordance  with  the  provisions  of  the  Code  of   Civil Procedure, 1908, relating to the trial of suits and if he is



satisfied that in the interests of the proper administration of  such  institution a scheme of administration  should  be settled,  he  shall  consult in the  prescribed  manner  the trustee and the persons having interest and by order  settle a scheme of administration for the institution.    (7)Every  order  of the Commissioner  settling  a  scheme under  this  section  shall, subject to  the  provisions  of Section 44, be binding on the trustee, the Executive Officer and all persons having interest. 44. (1) 52    (2) Any party aggrieved by the order of the  Commissioner under  sub-section (1) of section 42 may appeal to the  High Court  within  thirty  days from the date of  the  order  or publication thereof as the case may be".   The  effect of these provisions of the present Act is  (1) that  a scheme can be framed by the Commissioner alone on  a report  of the Assistant Commissioner on such enquiry as  he thinks  fit and not by the Commissioner in association  with one  or  more Government officers to be  appointed  for  the purpose  by  the Government, (2) that there is no  right  of suit for cballenging the validity or the correctness of  the scheme  framed  by  the Commissioner but there  is  only  an appeal  to  the High Court direct.  It is urged  that  these provisions still continue to be unreasonable restrictions on the  rights  of the Mathadipathi and are  accordingly  ultra vires  and  unconstitutional.  In the case reported  in  the Commissioner,  Hindu  Religious Endowments,  Madras  v.  Sri Lakshmindra  Thirtha  Swamiar of Sri Shirur  Mutth  (1)  the interest of Mathadipathi in the Math has been recognised  as property falling within the scope of article 19(1)(f) of the Constitution.   It was recognised that the  ingredients,  of office  and property, of duties and personal  interest,  are blended  together  in the rights of a Mahant  and  that  the Mahant has the right to enjoy the property or the beneficial interest  so long as he is entitled to hold his office.   It was recognised that the beneficial interest which the Mahant enjoys  is  appurtenant to his duties and that as he  is  in charge of a public institution, reasonable restrictions  can always  be  placed upon his rights in the interests  of  the public.  It was however held therein that provisions for the framing  of  a scheme which by its terms operate by  way  of unreasonable  restriction  would  be  unconstitutional   and invalid.  It is this principle that was applied in the  next decision  of this Court relating to Orissa Maths  in  Mahant Sri Jagannath Ramanuj Das v. The State of Orissa(2).  There, the  validity  of the then provisions of the Act,  i.e.,  of sections 38 and 39 of (1) (1954] S.C.R. 1005. (2) [1954] S.C.R. 1046. 53 Orissa Act IV of 1939 as amended in 1953 was adjudged in the following terms:    "Sections  38 and 39 relate to the framing of  a  scheme. The   scheme  can  certainly  be  settled  to   ensure   due administration  of  the endowed property but  the  objection seems  to  be  that the Act provides for the  framing  of  a scheme not by a civil court or under its supervision but  by the Commissioner, who is a’ mere administrative or executive officer.  There is also no provision for appeal against  his order to the court............ We think that the settling of a  scheme  in  regard  to  a  religious  institution  by  an executive  officer without the intervention of any  judicial tribunal  amounts  to an unreasonable restriction  upon  the right   of  property  of  the  superior  of  the   religious institution  which is blended with his office.  Sections  38



and 39 of the Act must, therefore, be held to be invalid".   It  is  urged  that  though the  obvious  purpose  of  the amending  Act  of  1954 passed after this  decision  by  the Supreme Court, was to remedy the defect above pointed out by providing  for  a right of appeal direct to the  High  Court from  the  determination of the  Commissioner  settling  the scheme,   the  present  provisions  still  continue  to   be unreasonable  restrictions on the right of property  of  the Mahant.  It is further urged that the initial decision in  a scheme-proceeding  is  still on the basis  of  an  executive enquiry  by  an  executive officer and that in  any  case  a direct   appeal   to   the  High  Court   as   against   the Commissioner’s  order  cannot  be as  adequate  a  safeguard regarding  the rights of the Mahants, as a suit and a  right of  appeal  therefrom in the ordinary course to  the  higher courts  would  be.   It  is undoubtedly  true  that  from  a litigant’s  point of view an appeal to the High  Court  from the Commissioner’s order is not the same as, an  independent right  of suit and an appeal to the higher courts  from  the result  of  that suit.  But in order to  judge  whether  the provisions in the present Act operate by way of unreasonable restriction  for constitutional purposes what is to be  seen is  whether the person affected gets a reasonable chance  of presenting  his  entire case before  the  original  tribunal which has to 54 determine judicially the questions raised and whether he has a  regular  appeal to the ordinarily  constituted  court  or courts  to  correct the errors, if any, of the  tribunal  of first  instance.  For that purpose it is relevant to  notice that in the present Act, the Commissioner of Endowments has, by  virtue  of  section 4 thereof, to be  a  member  of  the Judicial Service (of the State) not being below the rank  of a Subordinate Judge, while under section 7 of Act IV of 1939 a Commissioner of Endowments could be a person of either the judicial  or  the executive service and that  even  where  a member  of  the judicial service is appointed he  may  be  a person  below  the  rank of a  Subordinate  Judge.   Another important  difference  has also to be  noticed,  viz.,  that while  under section 38 of the previous Act the enquiry  has to be conducted "in such manner as may be prescribed"  which means  as prescribed by the Provincial Government  by  rules made  under the Act and hence changeable by the  Government, under  the  present  Act,  section  42(1)  (b)  specifically enjoins that "the Commissioner shall hold an enquiry in  the manner  prescribed and so far as may be in  accordance  with the  provisions of the Code of Civil Procedure  relating  to the trial of suits".  It may also be noticed that before the Commissioner  starts  his enquiry it is  expected  that  the Assistant  Commissioner, who, by virtue of section 5(2),  is to  be a person holding a judicial office not lower in  rank than that of a Munsif, is to make such enquiry as he  thinks fit and submit his report.  Thus in the initial stage of the framing  of the scheme under the provisions of  the  present Act  there  is  first of all something in the  nature  of  a preliminary  enquiry by a judicial officer of the rank of  a Munsif  and this is followed by a regular and  full  enquiry before the Commissioner who is of the rank of a  Subordinate Judge.   The enquiry before the Commissioner is  assimilated to  and is governed by the provisions relating to the  trial of suits by enjoining that, as far as may be, it is to be in accordance  with  the  provisions  of  the  Code  of   Civil Procedure  relating  to trial of suits.   While,  therefore, under  the  prior Act the enquiry  before  the  Commissioner might well



55 have  been  of  the nature of an  executive  enquiry  by  an executive  officer, the enquiry under the present Act is  by itself  in  the  nature of a judicial  enquiry  by  judicial officers  followed  up by a right of regular appeal  to  the High  Court.   A  scheme framed with  reference  to  such  a procedure cannot ipsofacto be pronounced to be in the nature of  unreasonable  restriction on the rights of  the  Mahant. The  legislature’ might well have thought that,  instead  of making  the enquiry before the Commissioner more or less  in the nature of a preliminary executive enquiry to be followed up  by the affected Mahant by way of a regular suit  in  the Civil Court’. it is much more satisfactory and in the public interests,  to impress the enquiry before  the  Commissioner himself   with   the  stamp  of  greater   seriousness   and effectiveness  and  to  assimilate the  same  to  a  regular enquiry  by  the  judicial  officer  according  to  judicial procedure  and then to provide a right of direct  appeal  to the High Court.   It has been strongly urged that a mere right to appeal  to the High Court would virtually be in the nature of a limited appeal  confined to challenge only on certain basic  matters and  probably limited to questions of law.  We can  find  no warrant  for any such apprehension.  The right of appeal  is given in very wide and general terms.  Obviously the  appeal can be both on facts and on law and would relate not  merely to  the merits of the scheme but also to all  basic  matters whose  determination  is implicit in the very framing  of  a scheme.   In  our opinion the present provisions  cannot  be struck   down  as  being  in  the  nature  of   unreasonable restriction on the rights of the Mahant.   Two  other minor provisions in this connection  have  been brought  to  our  notice  and  relied  upon  as   indicating unreasonable  restriction on the rights.  One is that  while under  the 1939 Act the period of limitation for a right  of suit was six months, the period allowed for an appeal  under the  present  Act is only 30 days.  Another  is  that  under section 74(3) the operation of the order of the Commissioner is not to be stayed pending the disposal of the appeal.  It 56 has  been urged that these provisions operate  very  harshly against the Mahant affected by a scheme when framed.  It  is pointed  out that as the result of a scheme being  put  into operation  immediately,  the Mahant may be deprived  of  the effective   possession  of  the  Math  and  hence   of   the wherewithal  to  file an appeal within the very  short  time that  is  allowed, as also of the resources to  conduct  the appeal  in the High Court or to maintain himself during  its pendency  which may take years.  There is not much force  in this contention.  In so far as the question of filing of  an appeal is concerned, there should be no difficulty since the provisions  relating to appeals in forma pauperis  would  be applicable  and can be availed of if the circumstances  call for it.  In so far as any situation may arise which may call for financial facilities for the conducting of the appeal or for   interim  maintenance,  the  learned   Attorney-General suggests that the appellate Court would have inherent  power and discretion to give appropriate directions for supply  of funds  out  of the trust estate and that in any  view,  such power and discretion have to be implied in the provision for an  appeal so that the said right of appeal may  not  become illusory.  Having regard to the suggestion thus put forward, which  we  accept,  we cannot hold  that  the  provision  in section  74(3)  that  the  operation of  the  order  of  the Commissioner  framing a scheme is not to be  stayed  pending



the  disposal  of the appeal, brings about  an  unreasonable restriction.   In  this view we think  that  the  incidental provisions above referred to do not in any way detract  from the reasonableness of the main provisions.  In our  opinion, therefore,  the  provisions in the present Act  of  1952  as amended in 1954, relating to the framing of schemes are  not open to any of the constitutional objections raised, and are valid.   The  next point that has been urged, depends on  the  fact that  in  four of the petitions before us  relating  to  the Maths  of  Mahiparakash,  Uttaraparswa,  Dakshinaparswa  and Radhakanta,  schemes  were in fact framed in the  year  1953 under the provisions of 57 Orissa  Act  IV  of  1939 as amended in  1953.   It  may  be recalled  that  these provisions were held  invalid  by  the decision  of this Court in March, 1954, above  referred  to. It  must therefore be taken that these schemes were void  as the law then stood.  It is with reference to that  situation that  the Orissa Legislature by an amendment in 1954 of  the 1952 Act introduced section 79-A into this Act which runs as follows:   "Notwithstanding  anything contained in any of  the  other provisions  of this Act or in any judgment, decree or  order of any court all schemes purporting to have been settled  in pursuance  of  sections  38  and  39  of  the  Orissa  Hindu Religious  Endowments Act, 1939, after the  commencement  of the Orissa Hindu Religious Endowments (Amendment) Ordinance, 1953,  and  before  the commencement of this  Act  shall  be deemed to have been settled under the provisions of this Act and any person aggrieved by any such scheme may within sixty days  from  the date of commencement of this Act  prefer  an appeal to the High Court and such appeal shall be dealt with and  disposed of in the same manner as appeals provided  for under sub-section (2) of section 44".  This  purports to revive the schemes which were  pronounced to be invalid by the judgment of this Court and attempts  to remove  the defect noticed in the judgment of this Court  by providing  for  a regular appeal to the High  Court  against that  very  scheme  within  60 days from  the  date  of  the commencement of the Act.  It may be noticed that the schemes so  revived  are  only those which were  settled  after  the commencement   of   Orissa   Hindu   Religious    Endowments (Amendment) Ordinance, 1953, and before the commencement  of the 1952 Act, i.e., between 16th May, 1953 to 31st December, 1954,  (hereinafter  referred to as the  specified  period). This  was exactly the period within which the  amendment  of 1939 Act made in 1953 was in force, abolishing the right  of suit and making the scheme as determined by the Commissioner final  and  conclusive.  Section 79-A in terms  purports  to revive the invalid scheme notwith- 8 58 standing  any judgment, decree or order of any court,  which means that though a court may have pronounced the scheme  as void  still  that  is  deemed to  be  alive.   It  has  been suggested  that  this is directly flouting the  decision  of this Court and that the legislature has no power to  declare as  valid and constitutional what was decided by this  Court as  invalid and unconstitutional.  But it is to be  observed that the legislature does not purport to do anything of  the kind.   What it does is not to deem the  schemes  previously settled as having been validly settled on those very  dates, under  the  then  existing law.  This of  course  is  beyond legislative  competence  since the legislature has  not  the



power to override unconstitutionality as such.  But what the legislature  has  purported to do is to take up  those  very schemes  and  deem  them  to have  been  settled  under  the _provisions of the present Act and thereby to lay them  open to any attack available under the present law.  Such a  pro- vision  is  not  uncommon in legislative  practice,  and  is enacted in order to avoid the public inconvenience of having to  re-do  what  has previously been done.   The  result  of section  79-A  is  to treat the schemes  framed  within  the specified  period  as schemes framed immediately  after  the commencement of the present Act and to impute thereto, by  a fiction,  compliance with the various procedural  and  other steps  which are requisite under section 42.  We can see  no reason for thinking that such a provision is not within  the competence  of the Legislature.  It has been suggested  that this  is  really interfering with the jurisdiction  of  this Court  under article 32.  But there is no substance in  that suggestion.   The right of any person to seek  remedy  under article  32 in respect of any violation of  his  fundamental rights  is in no way curtailed or affected by the fact  that an  actual  decision of this Court on an  application  under article  32  is,  in effect, nullified  by  appropriate  and competent legislative measures.  Indeed, the right has been, in fact, successfully invoked on the prior occasion and  has again  been  invoked on the present occasion.  If  it  fails this time it is not because the right and the remedy under 59 article 32 have been taken away or affected but because  the unconstitutionality   has  been  removed.    Section   79-A, therefore,  is  not open to any objection on the  ground  of legislative incompetence.   It  has  further  been  urged that  to  treat  the  scheme prepared  with  reference to the Act of 1939 as  amended  in 1953 as a scheme prepared under the present Act by means  of a fiction is really in the nature of deprivation of  certain advantages  which an aggrieved person would have had  if  in fact the scheme was settled under the present Act, and  that therefore  such  a  scheme would still  operate  by  way  of unreasonable  restriction.  This contention is also  without substance.  It is true that in the present Act the procedure relating to the scheme has four steps which are as  follows: (1) The scheme is to be framed by a Commissioner, who is, by appointment, a judicial officer. (2)  The procedure is, as far as may be, the same as that in the trial of suits. (3)  There  is  a  preliminary  enquiry  by  the   Assistant Commissioner. (4) There is an appeal to the High Court. Out of these four, the substantial item is the last one  and that  has been specifically provided for under section  79-A and a period of sixty days from the date of the commencement of the Act has been provided for the right of appeal.  There can be no complaint on this score.   It  is  true  that  the schemes  under  the  Act  then  in operation, i.e., during the specified period, might possibly have been framed by (a) an executive officer, as also (b) in pursuance  of  procedure  under  the  rules  framed  by  the Executive Government which may not approximate to that of  a trial of a suit.But this  was   merely   a   theoretical possibility.In  fact, as appears from the record and,  as has beenstated  to us by the learned  Attorney-General  on behalf of the State and not disputed on the other side,  the Endo  wment Commissioner during the specified period  was  a Subordinate  Judge  of  the Orissa  Judicial  Service.   The actual  procedure which was in force at the time  under  the



rules as then prescribed was also in fact in 60 consonance with the trial of suits under the Civil Procedure Code.   This  appears clearly from rules 51 to  109  of  the Rules  framed by the Government of Orissa, an official  copy of  which  has been supplied to us in court by  the  learned Attorney-General  on  behalf of the State.  As  regards  the provision  that  the enquiry by the Commissioner  under  the present  Act has to be preceded by a preliminary enquiry  by an  Assistant Commissioner who is of the rank if  a  Munsif, the  argument  that the deprivation of this feature  by  the deeming   provision   in  section  79-A  operates   to   the disadvantage  of the Mahants is not by any means  a  serious point.  It is to be noticed that this is setoff by the  fact that  schemes  under  the 1939 Act are  framed  not  by  the Commissioner  alone  but along with one or  more  Government officers  appointed by the Government.  We  are,  therefore, unable to, uphold the contention that the deeming  provision under  section  79-A which treats the  previous  schemes  as schemes  framed  under the present Act results  in  bringing about any substantial disadvantages to the detriment of  the Mahants.   We  accordingly  hold that section  79-A  of  the present Act is not open to any constitutional objection.   We  are, therefore, clearly of the opinion  that  sections 42(1)(b),  42(7)  and 44(2) as well as section 79-A  of  the present  Act are not open to the  constitutional  objections raised before us.   It  may be mentioned that in the petitions before us  some other   provisions  of  the  present  Act  have  also   been challenged as being unconstitutional.  But no arguments have been advanced before us in respect thereof.  It may also  be mentioned  that the petitions before us have not raised  any questions relating to the merits of the scheme in so far  as any specific provisions thereof may have operated by way  of unreasonable  restrictions, in the light of  the  considera- tions  pointed  out  by this Court in its  judgment  in  the Commi8sioner,  Hindu  Religious Endowments,  Madras  v.  Sri Lakshmindra  Thirtha  Swamiar of Sri Shirur  Mutth(1).   Nor does it appear that any appeal as (1) [1954] S C.R. 1005. 61 provided in section 79-A has been filed to the High Court in respect  of  these  cases challenging the  validity  or  the propriety  of  the  various  provisions  in  the  scheme  or correctness  of  the decision, express or  implied,  on  the basic   facts  which  are  the  foundation  of  the   scheme proceedings.  We express no opinion on any of these matters.   In the last of the petitions relating to Manapur Math, the facts  appear  to be slightly dissimilar but this  makes  no substantial  or  material  difference.   In  that  case  the original  scheme was one framed under sections 38 and 39  of the  1939 Act as they stood before their amendment  in  1953 which  provided for a right of suit.  The scheme itself  was dated  the 22nd May, 1948.  Previous to the framing  of  the scheme there appears to have been a claim by the Mahant that the  institution was a private one and not a public one  and that  it  did not fulfil the definition of the  word  "Math" under  the  Act.  There appears to have  been  a  compromise between  the  then Mahant and the public of the  village  in which the Math is situated, who were interested in the Math. The compromise was to the effect that the institution was to be  declared  a  Math but that the then  Mahant  was  to  be recognised   as  the  hereditary  trustee   thereof.    This compromise  was recognised by the Commissioner by his  order dated  the  12th  May,  1947,  formally  making  the   above



declarations.  It was on the basis of this that, later on, a scheme was framed on the 22nd May, 1948.  It does not appear that  the Mahant filed any suit which was then available  to him.   But  it  is  stated to us  by  the  learned  Advocate appearing  for the petitioner that an application was  filed in  the High Court for a writ to qudsh the scheme, and  that it  was  dismissed by the High Court on the  16th  November, 1954.   The  scheme became final under the original  Act  of 1939 as it stood before the 1953 amendment.  Obviously, with reference  to the facts of such a case, no argument  of  the kind  that  has  been  addressed to us  in  the  other  four petitions was available.   In  the result, therefore, all the five petitions must  be dismissed with costs. 62