Sri Sadasib Prakash Brahmachari vs The State Of Orissa

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 20/01/1956

Coram: B. Jagannadhadas, Vivian Bose, Bhuvneshwar P. Sinha, Syed Jaffer Imam

In the matter titled Sri Sadasib Prakash Brahmachari versus The State of Orissa, the Supreme Court of India delivered its judgment on 20 January 1956. The petition was filed by Sri Sadasib Prakash Brahmachari and the respondent was the State of Orissa, with several connected petitions presented before the Court. The judgment was authored by Justice B. Jagannadhadas and the bench included Justices Vivian Bose, Bhuvneshwar P. Sinha, and Syed Jaffer Imam. The case is recorded in the law reports as 1956 AIR 432 and 1956 SCR 43. The central question involved the Constitution of India, specifically Article 19(1)(f), and the validity of certain provisions—Sections 42(1)(b), 42(7), 44(2) and 79(A)—of the Orissa Hindu Religious Endowments Act, 1951 as amended by Orissa Act XVIII of 1954, with respect to their consistency with the Constitution.

The headnote of the judgment recounted that 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, had previously been declared unconstitutional and void by this Court in the case of Mahant Sri Jagannath Bamanuj Das v. The State of Orissa, reported in [1954] SCR 1046. The Court had found that a law which authorized the Commissioner, together with his associates, to frame a scheme and declared that determination final, without permitting any judicial correction, constituted an unreasonable restriction on the head of the Math’s right to property as protected by Article 19(1)(f). After that decision dated 16 March 1954, the Orissa Legislature enacted Orissa Act XVIII of 1954. Although presented as an amendment to the 1939 Act, it actually amended the Orissa Act II of 1952, which at that time had not yet been brought into force. The President gave assent to Act XVIII on 2 December 1954, and the Act commenced immediately, thereby amending and modifying the dormant 1952 Act. By a notification dated 22 December 1954, made under Section 1(3) of the 1952 Act, the amended Act was declared to become effective on 1 January 1955, as the State Government might specify by further notification. In the present proceedings, five petitions filed under Article 32 of the Constitution challenged the validity of the various sections of the Orissa Act II of 1952 as amended by Act XVIII of 1954, relying on the principles articulated in Mahant Sri Jagannath Bamanuj Das v. The State of Orissa. The Court held that Sections 42(1)(b), 42(7), 44(2) and 79(A) of the Orissa Hindu Religious Endowments Act, 1951 (Orissa Act II of 1952), as amended by Orissa Act XVIII of 1954, were not unconstitutional and were not ultra vires the Constitution.

The Court examined the argument that sections 42 and 44 of the Act imposed unreasonable restrictions on the rights of a Mathadipathi. The petitioners claimed that the provisions allowed a scheme to be framed solely by the Commissioner based on a report of the Assistant Commissioner, without requiring the Commissioner to act in association with any Government officers appointed for that purpose. They also contended that the scheme could not be challenged by filing a suit; the only remedy available was an appeal to the High Court. The Court found these contentions to be without substance and not comparable to the restrictions identified in Mahant Sri Jagannath Bamanuj Das v. The State of Orissa [(1954) S.C.R. 1046]. In the first stage of framing a scheme under the present Act, the Court observed that a preliminary enquiry is conducted by a judicial officer of the rank of Munsif. This preliminary enquiry is followed by a full and regular enquiry before the Commissioner, who holds the rank of Subordinate Judge. The Court noted that the enquiry before the Commissioner is treated as a trial of suits and is governed, as far as possible, by the provisions of the Code of Civil Procedure that relate to the trial of suits. Consequently, whereas the earlier Act permitted the Commissioner’s enquiry to be an executive enquiry conducted by an executive officer, the present Act makes the Commissioner’s enquiry a judicial enquiry carried out by judicial officers, and it provides a statutory right of appeal to the High Court. The Court held that a scheme framed following this judicial procedure could not be automatically described as an unreasonable limitation on the Mahant’s rights. The legislature, according to the Court, appeared to prefer a more serious and effective enquiry by the Commissioner, rather than a preliminary executive enquiry followed by a civil suit filed by the Mahant. By giving the enquiry the character of a regular judicial proceeding and by allowing a direct appeal to the High Court on both facts and law, the Act served public interest more adequately. The Court cited 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 Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Math [(1964) S.C.R. 1006] in support of its reasoning. The judgment was delivered in original jurisdiction.

The petitions numbered 651 of 1954 and 39, 46, 51 and 176 of 1955 were filed under Article 32 of the Constitution of India for the enforcement of fundamental rights. Counsel for the petitioner in Petition No. 651 of 1954 was S. P. Sinha, assisted by S. D. Sekhari. In Petition No. 39 of 1955 the petitioner was represented by S. P. Sinha together with B. K. Saran and M. M. Sinha. Petition No. 46 of 1955 was presented by B. K. Saran and M. M. Sinha on behalf of the petitioner. The petitioner in Petition No. 51 of 1955 was aided by S. D. Sekhari, and the petitioner in Petition No. 176 of 1955 was represented by R. Patnaik. The respondents in all of the petitions were defended by the Attorney‑General of India, assisted by R. Ganapathy Iyer and P. G. Gokhale. The judgment was delivered on 20 January 1956 by Justice Jagannadhadas.

These proceedings comprised five separate petitions filed under Article 32 by the heads of five Hindu monastic institutions (Maths) situated in the State of Orissa. Four of the institutions – Mahiparakash Math, Uttaraparswa Math, Dakshinaparswa Math and Radhakant Math – were located in the city of Puri, while the fifth, Manapur Math, was located near Tirtol in Cuttack district. Each petition challenged certain provisions of the Orissa Hindu Religious Endowments Act, 1951 (Orissa Act II of 1952) as amended by Orissa Act XVIII of 1954, contending that those provisions were unconstitutional and beyond the legislative competence of the State. Because the substantive questions raised in the five petitions were largely identical, the Court chose to resolve all of them in a single judgment. The background to these petitions involves a series of legislative and judicial developments concerning the regulation of Hindu religious endowments in Orissa. The first legislative interference by the Provincial Legislature was the Orissa Hindu Religious Endowments Act, 1939 (Orissa Act IV of 1939), which came into force on 31 August 1939 and was modeled on a contemporaneous Act of the Madras Province. The validity of that Act, in whole and in part, was contested by the Mahants of roughly thirty Maths in Orissa. In 1940 those Mahants instituted a suit on behalf of the individual Maths that were plaintiffs, including three of the present petitioners – the 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. The suit, recorded as Case No. I of 1950, was dismissed by the District Judge of Cuttack. An appeal was then filed before the High Court of Orissa, which upheld the constitutionality of the 1939 Act and its various sections by a judgment dated 13 September 1949, reported in Mahant Sri Gadadhar Ramanuj Das v. The Province of Orissa. An appeal against that decision was subsequently lodged before the Supreme Court, designated as Case No. I of 1950, and that appeal remained pending for over four years, finally being scheduled for a final hearing in February 1954.

During the pendency of the appeal, the Supreme Court scheduled a final hearing for February 1954. While the appeal was still pending, the Legislature of Orissa enacted two additional statutes concerning Hindu religious endowments. The first of these statutes was Orissa Act II of 1952, which was described as an “Act to amend and consolidate the law relating to the administration and governance of Hindu religious institutions and endowments in the State of Orissa.” The purpose of this legislation was to repeal the earlier Orissa Act IV of 1939 upon its coming into force. The Act received the President’s assent on 16 February 1952, but it did not become operative immediately because section I, sub‑section (3) stipulated that the Act would come into force only on a date fixed by a notification of the State Government. No such notification was issued during the time the appeal was before the Supreme Court, and consequently the 1952 Act remained dormant on the statute book. It was eventually brought into force by a notification dated 22 December 1954, published in the Orissa Gazette on 31 December 1954, and the Act was deemed effective from 1 January 1955. In the meantime, other independent statutory measures that amended the 1939 Act were passed and were brought into operation. The first of these was Orissa Ordinance No 11 of 1953, promulgated by the Governor of Orissa on 16 May 1953. This ordinance was later superseded and replaced by Orissa Act XVIII of 1953, which became operative on 28 October 1953. By means of these two successive legislative enactments, the 1939 Act was amended in several respects, and the amended version of that Act governed the period from May 1953 to March 1954, which coincided with the later stage of the pendency of Case No I of 1950 before the Supreme Court. Sometime after May 1953, the Commissioner of Hindu Religious Endowments, Orissa, appears to have initiated proceedings for the framing of schemes affecting a number of Mathas. Schemes were actually framed for four Mathas—Mahiparakash, Uttaraparswa, Dakshinaparswa and Radhakanta—which correspond to Petitions Nos 651 of 1954, 49, 46 and 51 of 1955 respectively. These schemes were put into operation, and the administration of some of the Mathas was taken over by trustees appointed under the schemes. Subsequently, the Mahants of three of the affected Mathas—Mahiparakash, Uttaraparswa and Radhakanta, who are also petitioners in the present proceedings—filed applications under article 226 of the Constitution before the High Court of Orissa, challenging the validity of the schemes. The High Court dismissed those applications on 17 February 1954. Meanwhile, the Mahant of Dakshinaparswa Math, who had also been a petitioner before the High Court, together with another Mahant, filed a petition under article 32 of the Constitution to the Supreme Court on 2 December, seeking relief against the Act then in force.

In 1953 the Mahants filed Petition No. 405 of 1953 in the Supreme Court, asserting that the Act then in force violated their fundamental rights. The petition was heard together with Case No. 1 of 1950, which had been mentioned earlier, on the ninth, tenth and eleventh of February 1954. The Court delivered its judgment on the sixteenth of March 1954, and the decision was reported in Mahant Sri Jagannath Ramanuj Das v. The State of Orissa. The judgment held that sections 38 and 39 of Orissa Act IV of 1939, as amended in 1953—the provisions under which the religious‑institution schemes had been framed—were unconstitutional. Consequently, those schemes were declared null and void, and the possession of the Mathas that had been taken over pursuant to the schemes was restored to the respective Mahants. The judgment, however, mistakenly referred to Orissa Act II of 1952 as the statute in force at the time. The Court later acknowledged that this reference was a slip, because the operative law was in fact the 1939 Act as amended in 1953. The Court affirmed that this error did not affect the reasoning of the judgment or its binding effect, since the substantive reference was indeed to the sections of the 1939 Act as amended in 1953.

After the Supreme Court’s decision in March 1954, the Legislature of Orissa enacted a further statute, Orissa Act XVIII of 1954. That Act did not amend the 1939 Act, which remained operative, but instead purported to amend the earlier Orissa Act II of 1952, a statute that had not yet come into force. Orissa Act XVIII of 1954 received the President’s assent on the second of December 1954 and was brought into effect immediately, thereby partially amending and modifying the 1952 Act. At that moment the amended 1952 Act was awaiting a notification under section 1(3) to be formally brought into operation. The necessary notification was finally issued on the twenty‑second of December 1954, and it declared that the amended 1952 Act, as modified by Act XVIII of 1954, would take force from the first of January 1955. The effect of that commencement was to repeal Orissa Act IV of 1939, as amended in 1953. The first petition before the Court, relating to Mahiparakash Math, had been filed in anticipation of that notification, whereas the remaining four petitions were filed after the notification had been issued. All of the petitions challenged the validity of various sections of the 1952 Act as amended in 1954—referred to herein as the “present Act”—and the challenges were rooted entirely in the principles articulated by the Supreme Court in Mahant Sri Jagannath Ramanuj Das v. The State of Orissa. The foregoing narrative sets out the legislative history and the parallel litigation that gave rise to the present proceedings.

The principal challenge presented in these petitions concerns sections 42 and 79‑A of the Act presently under review, both of which relate to the schemes governing religious institutions of the type that are the subject of the proceedings. There is no doubt that these two sections are applicable to the Maths involved. The expression “religious institution” appearing in section 42 has been expressly defined to include “a Math and endowments attached thereto.” A Math is described as “an institution succession to the headship of which devolves in accordance with the directions of the founder or is regulated by custom,” while a hereditary trustee is defined as “a trustee of an institution succession to whose office devolves by custom or is specifically provided for by the founder.” Consequently, a Math qualifies as a religious institution that is presided over or administered by a hereditary trustee, thereby bringing it within the ambit of section 42(1)(b). To understand the basis of the attack, it is necessary to trace the evolution of the provisions governing the framing of schemes for such institutions through the successive legislative enactments. In the 1939 Act, the relevant provisions were sections 38, 39 and 40. Because the objection mainly concerns the procedure for framing a scheme, it suffices to outline the essence of these three sections as they relate to the enquiry process required for scheme preparation. Under those provisions, the enquiry was to be conducted by the Commissioner for Endowments appointed under the Act, who was to act jointly with one or more persons drawn from the service of the Crown and appointed by the Provincial Government for this purpose. The enquiry was to be carried out “in such manner as may be prescribed.” In the course of the enquiry, the Commissioner and the accompanying officials were required to consult the trustee and any persons having an interest in the institution. After the scheme had been settled, the order determining the scheme was to be published in the manner prescribed by law. Any trustee or interested person could, within six months of the date of such publication, institute a suit in the appropriate court seeking to modify or set aside the order. The order fixing the scheme was deemed final and binding on the trustee and all interested parties, subject only to the outcome of any such suit. Of course, the result of a suit would, under general law, be open to further appeal in accordance with the Civil Procedure Code, following the ordinary procedural route. The provisions were altered in 1953, first by Orissa Ordinance II of 1953 and subsequently by Orissa Act XVIII of 1953, as previously noted. The amendment involved the deletion of sub‑section (4) of section 39, which had previously provided for the right of a trustee or interested person to bring a suit in the regular civil court, together with the attendant possibility of further appeals to higher courts. In its place, a new sub‑section (4) was inserted, thereby changing the procedural posture of challenges to the scheme. This amendment formed part of the legislative background against which the present petitions were filed, and the petitioners reliance on the earlier jurisprudence of Mahant Sri Jagannath Ramanuj Das v. The State of Orissa, reported in [1954] S.C.R. 1046, underscores the significance of the procedural shift introduced by the 1953 amendments.

Section 39 was amended to provide that “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 result of this amendment, section 40 of the 1939 Act, which previously read “subject to the result of the suit the order settling a scheme is final,” was removed. The combined effect of these two changes was that once the Commissioner, assisted by one or more specially nominated Government officers, had settled a scheme after completing the required enquiry, the resulting order could no longer be questioned or corrected in the ordinary courts. The validity of this scheme‑framing procedure was examined by this Court in March 1954. The Court held that the legislation, by permitting the Commissioner and his associates to frame a scheme and declaring that determination final without any possibility of judicial correction, placed an unreasonable restriction on the rights of the head of the Math with respect to his interests in the Math. Accordingly, sections 38 and 39 of the Act then in force were declared unconstitutional and invalid. The law was later amended, and the present provisions are now found in sections 42 and 44 of the current Act, which differ substantially from the earlier provisions.

Section 42 begins by stating that “Whenever there is reason to believe that in the interest of the proper administration of a 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 that is presided over or managed by a hereditary trustee, the provision requires that the Assistant Commissioner make such enquiry as he thinks fit and submit his report to the Commissioner. The Commissioner must then hold an enquiry in the manner prescribed and, insofar as possible, in accordance with the provisions of the Code of Civil Procedure, 1908, relating to the trial of suits. If the Commissioner is satisfied that a scheme of administration is required for proper administration, 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. Sub‑section (7) of section 42 provides that “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.” Section 44 then states that “(1) (2) Any party aggrieved by the order of the Commissioner under sub‑section (1) of section” – a provision that allows an aggrieved party to appeal to the High Court within the prescribed period.

The Court observed that the statute permitted an appeal to the High Court within thirty days of the date of the order or its publication, as the circumstances required. It explained that the effect of the present Act was twofold: first, a scheme could be prepared solely by the Commissioner based on a report submitted by the Assistant Commissioner after an inquiry of his own choosing, without involving any additional government officers appointed for that purpose; second, there was no provision for instituting a suit to challenge the validity or correctness of the scheme devised by the Commissioner, and the only recourse available was a direct appeal to the High Court. Counsel argued that these provisions continued to impose unreasonable restrictions on the rights of the Mathadipathi, rendering them ultra vires and unconstitutional. The Court referred to the earlier decision in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutth, where the interest of the Mathadipathi in the Math was recognised as property falling within the ambit of Article 19(1)(f) of the Constitution. That judgment held that the office, property, duties and personal interests of a Mahant were interwoven, and that the Mahant could enjoy the beneficial interest in the property so long as he held the office. It further recognised that the beneficial interest was attached to his duties and that, because the Mahant managed a public institution, reasonable restrictions could be imposed on his rights in the public interest. However, the Court also stated that any scheme‑framing provision that operated as an unreasonable restriction would be unconstitutional and invalid. The same principle was applied in the later case of Mahant Sri Jagannath Ramanuj Das v. The State of Orissa. In that case the Court examined the validity of sections 38 and 39 of the Orissa Act IV of 1939, as amended in 1953, and declared that while a scheme could be settled to ensure proper administration of endowed property, the objection lay in the fact that the Act authorised the Commissioner—an administrative officer—not a civil court or a judicial body, to frame the scheme. Moreover, the statute offered no avenue for appealing the Commissioner’s order to a court. The Court concluded that allowing an executive officer to settle a scheme concerning a religious institution without any judicial oversight amounted to an unreasonable restriction on the property rights of the religious superior, whose rights were merged with his office, and therefore sections 38 and 39 of the Act were invalid.

In this case, the Court observed that the Act must therefore be held invalid. Counsel argued that although the 1954 amending Act, enacted after the Supreme Court’s earlier decision, was intended to correct the defect identified by introducing a direct right of appeal to the High Court from the Commissioner’s determination of the scheme, the present provisions nonetheless impose unreasonable restrictions on the Mahant’s property rights. It was further submitted that the initial determination in a scheme proceeding continues to be made on the basis of an executive inquiry conducted by an executive officer, and that a straight appeal to the High Court against the Commissioner’s order does not provide as effective a safeguard for the Mahants’ rights as the ordinary procedural mechanism of instituting a suit and obtaining a subsequent appeal to higher courts. The argument acknowledged that, from the standpoint of a litigant, an appeal to the High Court from the Commissioner’s order is not equivalent to an independent right to sue and a later appeal from the judgment of that suit. However, the Court said that to assess whether the provisions of the present Act operate as an unreasonable restriction for constitutional purposes, the key consideration is whether the affected person is afforded a reasonable opportunity to present the whole of his case before the original tribunal, which is required to judicially determine the questions raised, and whether he enjoys a regular right of appeal to a normally constituted court or courts capable of correcting any errors of the first‑instance tribunal. For this purpose the Court noted that, under the present Act, the Commissioner of Endowments must, according to section 4, be a member of the State Judicial Service not below the rank of a Subordinate Judge. By contrast, under section 7 of the 1939 Act, a Commissioner of Endowments could belong either to the judicial or the executive service, and even when appointed from the judicial service, he might occupy a position below that of a Subordinate Judge. The Court also pointed out another significant difference: while section 38 of the earlier Act required that the inquiry be conducted ‘in such manner as may be prescribed’, meaning that the Provincial Government could determine the procedure by rules subject to change, the present Act, in section 42(1)(b), expressly mandates that the Commissioner shall hold an inquiry in the manner prescribed and, as far as possible, in accordance with the provisions of the Code of Civil Procedure relating to the trial of suits. The Court further observed that before the Commissioner commences his inquiry, it is expected that the Assistant Commissioner, who under section 5(2) must be a person holding a judicial office not lower in rank than that of

In the initial stage of framing a scheme under the present Act, the Assistant Commissioner, who must be a judicial officer not lower in rank than a Munsif, is required to conduct a preliminary enquiry as he deems appropriate and to submit a report of his findings. This preliminary enquiry by a judicial officer is followed by a regular and complete enquiry before the Commissioner, who holds a position equivalent to that of a Subordinate Judge. The enquiry before the Commissioner is treated as a judicial proceeding and is to be conducted in accordance with the provisions relating to the trial of suits contained in the Code of Civil Procedure, to the extent that those provisions are applicable. Consequently, whereas under the earlier Act the enquiry before the Commissioner could have been an executive inquiry conducted by an executive officer, the present Act mandates that the enquiry itself be judicial, carried out by judicial officers, and subsequently provides a statutory right of appeal to the High Court. Because the procedure is framed to give the enquiry before the Commissioner the character of a serious and effective judicial process, the scheme cannot be automatically characterized as an unreasonable restriction on the rights of the Mahant. The legislature appears to have decided that, instead of making the commissioner’s enquiry a preliminary executive investigation to be followed later by a regular suit in a civil court, it would be more satisfactory and in the public interest to endow that enquiry with greater seriousness, to align it with normal judicial procedure, and to grant a direct avenue of appeal to the High Court.

The parties argued that the mere existence of a right of appeal to the High Court effectively created a limited appeal confined to certain basic issues, perhaps only questions of law. The Court found no justification for such an apprehension. The statutory provision granting the right of appeal is expressed in broad and general terms, allowing the appeal to be made on both factual and legal grounds. The appeal therefore encompasses not only the merits of the scheme but also all fundamental matters whose determination is implicit in the very framing of the scheme. In the Court’s view, the present provisions cannot be struck down as constituting an unreasonable restriction on the Mahant’s rights. Two additional minor provisions were raised as indications of an unreasonable restriction. First, while the 1939 Act provided a six‑month limitation period for a suit, the present Act limits the period for filing an appeal to only thirty days. Second, under section 74(3) the order of the Commissioner is not to be stayed pending disposal of the appeal. These provisions were noted, but the Court did not find them sufficient to render the scheme unconstitutional.

It was noted that the statute expressly stated that the order issued by the Commissioner for framing a scheme could not be stayed while an appeal was pending. Counsel argued that this rule imposed an unduly harsh burden on a Mahant whose Math might be placed under the scheme immediately, thereby depriving him of actual possession and of the means to file an appeal within the very short period allowed. The argument further contended that the Mahant would lack the financial resources to prosecute the appeal in the High Court or to support himself during the pendency of a proceeding that could last for many years. The Court found little merit in this contention. Regarding the filing of an appeal, the Court observed that the provisions relating to appeals in forma pauperis were available and could be invoked whenever the circumstances required such assistance. In respect of any situation that might demand financial aid for conducting the appeal or for interim maintenance, the Attorney‑General suggested that the appellate Court possessed inherent power and discretion to order the supply of funds from the trust estate. The Court accepted this suggestion and held that such inherent power must be read into the appeal provision so that the right of appeal would not become illusory. Consequently, the Court could not conclude that section 74(3), which bars the stay of the Commissioner’s order pending appeal, created an unreasonable restriction. The Court further reasoned that the incidental provisions previously mentioned did not undermine the reasonableness of the principal provisions. Accordingly, the Court declared that the provisions of the 1952 Act, as amended in 1954, concerning the framing of schemes were not vulnerable to any of the constitutional objections raised and were therefore valid.

The Court then turned to another issue raised by the parties. It was pointed out that in four petitions before the Court—concerning the Maths of Mahiparakash, Uttaraparswa, Dakshinaparswa and Radhakanta—schemes had been framed in 1953 under the provisions of the Orissa Act IV of 1939 as amended in 1953. The Court recalled that, in a decision delivered in March 1954, those provisions had been held invalid. Accordingly, the Court concluded that the schemes framed under the now‑void provisions were themselves void at the relevant time. To remedy this situation, the Orissa Legislature, by amending the 1952 Act in 1954, inserted section 79‑A. The newly inserted section provided that, notwithstanding any other provision of the Act or any judgment, decree or order of any court, all schemes purportedly settled under 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 the 1952 Act would be deemed to have been settled under the present Act. Moreover, any person aggrieved by such a scheme could, within sixty days of the commencement of the Act, prefer an appeal to the High Court, and that appeal would be dealt with in the same manner as appeals provided for under sub‑section (2) of section 44. This amendment was intended to revive the previously declared void schemes and to cure the defect identified by the Court by furnishing a regular avenue of appeal to the High Court within sixty days of the Act’s commencement.

In this case, the Court observed that the provision inserted by the 1954 amendment, namely section 79‑A, stated that any scheme made under the Orissa Hindu Religious Endowments Act, 1939 after the commencement of the Orissa Hindu Religious Endowments (Amendment) Ordinance, 1953 and before the commencement of the 1952 Act would be deemed to have been settled under the new Act. The provision further allowed any aggrieved person to file an appeal to the High Court within sixty days from the date the new Act came into force, and that such an appeal would be dealt with in the same manner as appeals provided for under sub‑section (2) of section 44. The Court noted that this language attempted to revive the schemes that had been declared invalid by its earlier judgment and to remedy the defect highlighted by that judgment by providing a regular appeal to the High Court against each such scheme within the prescribed sixty‑day period. It was pointed out that the schemes intended to be revived were only those that had been settled after the 1953 Ordinance came into effect and before the 1952 Act commenced, namely between 16 May 1953 and 31 December 1954, a period referred to as the specified period. During that interval, the 1953 amendment to the 1939 Act had been operative, having abolished the right of suit and making the Commissioner’s determination final and conclusive. Section 79‑A, in wording, purported to revive an invalid scheme notwithstanding any judgment, decree or order of any court, which meant that even if a court had declared the scheme void, it would nevertheless be considered alive. While some suggested that this directly contravened the Court’s decision and that the legislature lacked authority to declare a scheme valid and constitutional after the Court had found it invalid, the Court observed that the legislature was not attempting to overturn the earlier ruling. Rather, the legislature sought to treat the previously settled schemes as if they had been validly settled on the dates they were made, under the law then in force. Although the Court recognized that such a step exceeded the legislature’s power to override unconstitutionality, it accepted that the legislature merely aimed to bring those schemes within the ambit of the present Act, thereby opening them to attack under current law. This approach, the Court noted, was a familiar legislative practice intended to avoid the inconvenience of re‑doing work already performed. Consequently, section 79‑A effectively treated the schemes framed during the specified period as if they had been created immediately after the new Act commenced, imputing to them compliance with the procedural requirements of section 42 by legal fiction. The Court found no reason to consider this provision beyond legislative competence.

The Court observed that the provision in question fell within the legislative competence and was therefore valid. It noted that a suggestion had been made that the provision interfered with the Court’s jurisdiction under article 32 of the Constitution. The Court found that suggestion to be without substance. It explained that every individual retained the full right to approach the Supreme Court under article 32 for any breach of fundamental rights, and that this right was not diminished or affected simply because a later legislative enactment could nullify a specific Supreme Court decision on an article‑32 application. The Court further pointed out that the article‑32 remedy had been successfully invoked on a previous occasion and was being invoked again in the present case. The Court clarified that if the remedy failed this time, the failure was not due to a removal of the article‑32 right or remedy, but because the alleged unconstitutionality had been remedied. Consequently, the Court held that section 79‑A could not be attacked on the ground of legislative incompetence. The Court also rejected the argument that deeming an earlier scheme, prepared under the Act of 1939 as amended in 1953, to be a scheme prepared under the present Act created a deprivation of advantages that an aggrieved person would have enjoyed had the scheme truly been settled under the current Act, thereby imposing an unreasonable restriction. The Court described this contention as likewise lacking substance. It acknowledged that the present Act prescribed a four‑step procedure for framing a scheme: first, the scheme was to be framed by a Commissioner who was a judicial officer appointed for that purpose; second, the procedure was to resemble, as far as possible, the procedure followed in the trial of suits; third, a preliminary enquiry was to be conducted by an Assistant Commissioner; and fourth, an appeal was to be made to the High Court. The Court emphasized that the only substantial element among these steps was the right of appeal, which had been specifically provided for in section 79‑A, with a period of sixty days from the commencement of the Act to file such an appeal. The Court found no ground for complaint on this aspect. While it recognised that, in theory, schemes framed during the specified period could have been prepared by an executive officer or under rules issued by the Executive Government that might not have matched the trial‑of‑suit procedure, the Court held that this was merely a hypothetical possibility. In fact, the record—supported by the Attorney‑General’s evidence and not contested by the other side—showed that the Endowment Commissioner during the relevant period was a Subordinate Judge of the Orissa Judicial Service. Moreover, the Court observed that the actual procedure in force at that time, as prescribed by the rules then applicable, was in fact consistent with the trial‑of‑suit procedure under the Civil Procedure Code.

The Court observed that the provisions governing the procedure were evident from Rules numbered fifty‑one through one‑hundred‑nine, which had been framed by the Government of Orissa. An official copy of those rules had been placed before the Court by the Attorney‑General representing the State. Regarding the statutory requirement that any enquiry conducted by the Commissioner under the present Act should first be preceded by a preliminary enquiry carried out by an Assistant Commissioner holding the rank of a Munsif, the Court noted that the contention that the removal of this requirement by the deeming provision contained in section seventy‑nine‑A placed the Mahants at a disadvantage was not a substantial argument. The Court further pointed out that schemes under the 1939 Act were not formulated solely by the Commissioner; they were prepared jointly with one or more Government officers appointed by the Government. Consequently, the Court was unable to uphold the submission that the deeming provision of section seventy‑nine‑A, which treated earlier schemes as if they had been framed under the present Act, caused any material prejudice to the Mahants. Accordingly, the Court held that section seventy‑nine‑A of the present Act could not be struck down on constitutional grounds. The Court also expressed the view that sections forty‑two‑one‑b, forty‑two‑seven, forty‑four‑two and seventy‑nine‑A were not susceptible to the constitutional objections that had been raised before it.

The Court noted that, in addition to the provisions already discussed, the petitions also challenged some other sections of the present Act as being unconstitutional, but no specific arguments concerning those provisions had been presented. The Court further observed that the petitions did not raise any issues relating to the substantive merits of the schemes, such as whether any particular provision imposed unreasonable restrictions, in the context of the considerations outlined in the earlier judgment of the Supreme Court in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutth (1). The Court also found that no appeal under section seventy‑nine‑A had been filed in the High Court against the validity or propriety of any of the scheme provisions, nor against the correctness—express or implied—of the factual findings that formed the basis of the scheme proceedings. Accordingly, the Court declined to express any opinion on those matters. In the last of the petitions, which concerned the Manapur Math, the Court observed that although the facts were somewhat different, the differences did not amount to any substantial or material distinction. That case involved an original scheme that had been framed under sections thirty‑eight and thirty‑nine of the 1939 Act, as they existed before their amendment in 1953, and that scheme provided a right of suit. The scheme itself bore the date of twenty‑second May, nineteen‑forty‑eight, and before its framing a claim had been made by the Mahant that the institution was a private one and not a public Math.

The Court noted that the Mahant asserted that the institution was not a Math within the meaning of the Act and therefore did not satisfy the statutory definition of a Math. The Court further observed that a compromise appears to have been reached between the Mahant, who was then in possession of the institution, and the villagers who had an interest in the Math. Under the terms of that compromise the institution was to be formally recognised as a Math, while the Mahant was to be acknowledged as the hereditary trustee of the institution. The Court recorded that the Commissioner gave effect to this compromise by issuing an order dated 12 May 1947, which formally declared the institution a Math and recognised the Mahant as its hereditary trustee. On the basis of the Commissioner’s order, a scheme was subsequently framed on 22 May 1948. The Court found no evidence that the Mahant instituted any suit that was available to him at that time. However, the Court was informed by counsel for the petitioner that an application was filed in the High Court seeking a writ to quash the scheme, and that the High Court dismissed that application on 16 November 1954. Consequently, the scheme became final under the provisions of the original 1939 Act as they stood before the amendment of 1953. The Court concluded that, in view of the facts of this case, none of the arguments raised in the other four petitions was applicable. Accordingly, the Court ordered that all five petitions be dismissed and that costs be awarded.