Sri Jagadguru Kari... vs Commissioner Of Hindu Religious...

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 745 of 1963

Decision Date: 8 May 1964

Coram: P.B. Gajendragadkar, M. Hidayatullah, J.C. Shah, Raghubar Dayal, S.M. Sikri

The case is styled Sri Jagadguru Kari Basavara Jendraswami of Gavi Mutt versus the Commissioner of Hindu Religious Charitable Endowments and was decided on 8 May 1964 by the Supreme Court of India. The judgment was authored by Justice P B Gajendragadkar, who sat with Justices M Hidayatullah, J C Shah, Raghubar Dayal and S M Sikri.

The petitioner in the proceeding was Sri Jagadguru Kari Basavara Jendraswami, who held the office of Matadhipati of the Gavi Mutt. The respondent was the Commissioner of Hindu Religious Charitable Endowments. The judgment was delivered on 8 May 1964. The bench was headed by Chief Justice P B Gajendragadkar and included Justices M Hidayatullah, J C Shah, Raghubar Dayal and S M Sikri. The decision is reported in 1965 AIR 502 and 1964 SCR (8) 252, with subsequent citations in RF 1970 SC 470, RF 1975 SC 1069, R 1975 SC 2299.

The statutory framework relevant to the dispute involved Article 19(1)(f) of the Constitution of India, which guarantees the right to practice any profession, trade or business, and provisions of the Madras Hindu Religious and Charitable Endowments Act 1951 (Madras Act XIX of 1951). Specific sections of that Act that were considered include sections 103(d) and 62(3)(a) of the 1951 Act, as well as section 63 of the earlier Madras Hindu Religious and Charitable Endowments Act 1923 (Madras Act XI of 1923). The matters before the Court concerned the framing of a scheme governing the Mutt, the repeal of the earlier Act by the 1951 Act, the promulgation of the Constitution during the pendency of the scheme, a notice issued to the Matadhipati ordering him to hand over possession of the Mutt’s properties to an Executive Officer, and whether the scheme had to be examined under the fundamental rights guaranteed by the Constitution.

The factual background set out in the headnote explains that the appellant, who served as Matadhipati, filed a writ petition in the High Court seeking to quash a notice served on him in 1952 by the Executive Officer. The notice required the appellant to cede administration and possession of the Mutt’s property in accordance with a scheme that had been framed in 1939 under section 63 of the Madras Act XI of 1927. The appellant’s predecessor had earlier instituted a suit before the District Judge’s Court challenging that scheme; the suit was unsuccessful and the scheme was upheld subject to minor modifications. In 1951 the Madras Hindu Religious and Charitable Endowments Act 1951 was enacted, repealing and replacing the Madras Act XI of 1927. The appellant argued before the High Court that the scheme violated his fundamental rights under the Constitution, particularly the right to practice his profession. A single judge of the High Court ruled in favour of the appellant, holding that the scheme indeed contravened Article 19(1)(f). The respondent appealed this decision, and a Division Bench of the High Court reversed the single judge’s order.

The High Court subsequently granted the appellant a certificate to appeal to the Supreme Court. The appellant’s counsel contended that although the scheme had been validly framed under the earlier Act, section 103(d) of the 1951 Act required that every provision of the scheme be tested against the provisions of the newer Act. The respondent’s counsel argued that the scheme, having been framed under the authority of the earlier legislation, should continue to operate without the need for re‑examination.

The Supreme Court held that a proper construction of section 103(d) of the Madras Hindu Religious and Charitable Endowments Act 1951 indicates that the section merely provides that schemes framed under the Madras Act XI of 1927 shall be deemed to have been made under the 1951 Act. The provision was not intended to compel a fresh scrutiny or re‑framing of those schemes in light of the substantive provisions of the 1951 Act. The Court further observed that section 62(3)(a) of the 1951 Act expressly allows for modification of such schemes, and that unless a scheme is modified pursuant to that section, it must be considered validly made under the 1951 Act and enforceable as such. Consequently, the scheme governing the Gavi Mutt was upheld and the notice demanding surrender of possession to the Executive Officer was deemed valid.

The Court observed that, although the scheme being contested had not been fully implemented before the commencement of the Constitution, this circumstance did not justify a fresh examination of its provisions in the light of Article 19 of the Constitution. The Court reiterated that the fundamental rights guaranteed by the Constitution are not retrospective in their operation. Consequently, the observations made by this Court in the earlier case of Seth Shanti Sarup v. Union of India were held not to be applicable to the present dispute. The earlier decision of East End Dwellings Co. Ltd. v. Finsbury Borough Council, reported in [1952] A.C. 109, was also considered and distinguished in the present context.

The appeal before this Court was Civil Appeal No. 745 of 1963, arising from the judgment and order dated 6 February 1961 of the Andhra Pradesh High Court in Writ Appeal No. 71 of 1957. The matter was argued on 8 May 1964, and the judgment was delivered by Chief Justice Gajendragadkar. Counsel for the appellant, consisting of senior advocates, represented Shri Jagadguru Kari Basava Rajendraswami, who is the Matadhipati of Sri Gavi Mutt, a religious institution devoted to the propagation of the Veera Saiva tradition of Hinduism and located at Uravakonda in Anantapur district. The Court noted that, on 6 September 1939, the Board of Hindu Religious Endowments constituted under the Madras Act XI of 1927 (referred to as the “earlier Act”) framed a scheme under section 63 of that Act for the proper administration of the Mutt and its endowments. The predecessor‑in‑office of the appellant subsequently instituted Suit No. 21 of 1939 before the District Judge of Anantapur, seeking to have the scheme set aside. The district court largely rejected that suit, permitting only minor modifications to the scheme and confirming it thereafter. The predecessor then appealed the decision to the Madras High Court (Appeal No. 269 of 1945). During the pendency of this appeal the predecessor died, and the appellant entered the proceedings as the legal representative of the deceased predecessor. The appeal was eventually withdrawn and consequently dismissed. Although a scheme had been prepared under section 63, the Board did not take effective steps to assume actual management of the Mutt and its endowments; the existing management continued unchanged, and the appointment of an Executive Officer under the scheme did not alter the actual administration. On 5 April 1952 the appellant received a memorandum demanding that he surrender charge of all the Mutt’s properties to the Executive Officer, and a subsequent notice dated 16 April 1952 informed the appellant that the Executive Officer would take over possession of the said properties.

In this matter, the appellant declined to surrender possession of the Mutt to the Executive Officer after receiving a notice dated 16 April 1952, which informed him that the Officer would take over possession. The appellant relied on the decision of the Madras High Court in the Sirur Mutt case and argued that the scheme under which possession was to be taken was void because it violated the fundamental rights guaranteed by the Constitution that had become operative on 26 January 1950. The earlier Madras Hindu Religious and Charitable Endowments Act was repealed in 1951 by the Madras Hindu Religious and Charitable Endowments Act of 1951, hereinafter referred to as the latter Act. On 28 April 1952, the appellant filed a writ petition before the Madras High Court seeking a writ that would set aside the notice issued by the Executive Officer, which threatened to assume control of the Mutt and its property under the scheme. A single judge of the High Court heard the petition and granted the relief. The judge held that certain provisions of the scheme infringed the appellant’s fundamental right under Article 19(1)(f) of the Constitution, and consequently, those provisions could not be enforced. Although counsel for the respondent argued that the appellant possessed an adequate alternative remedy under the latter Act, the judge rejected that contention, observing that when a fundamental right is clearly contravened, the court must intervene on behalf of the citizen unless a policy consideration makes such interference inappropriate. Accordingly, the judge ordered that the scheme be set aside, while noting that his order did not preclude the Government from formulating a new scheme consistent with the Constitution‑protected rights of the Matadhipati.

The respondent, who was the Commissioner of Hindu Religious and Charitable Endowments and who had been impleaded in the writ petition along with the Executive Officer, appealed the decision of the single judge. The Division Bench that heard the appeal reversed the earlier judgment, holding that the scheme, which had been framed in 1939 under the provisions of the earlier Act that were valid at that time, could not be invalidated on the basis that some of its provisions conflicted with the fundamental right under Article 19. The appellate judges also rejected several additional arguments advanced by the appellant, although those arguments were not presented before the Supreme Court and therefore are not discussed further. Having concluded that the scheme was valid when it was created, the Division Bench allowed the respondent’s appeal, set aside the order of the single judge, and directed that the appellant’s writ petition be dismissed.

The Division Bench had ordered that the writ petition filed by the appellant be dismissed, and the appellant has now approached this Court on a certificate issued by the High Court. Before addressing the submissions raised by counsel for the appellant, the Court first outlines the character of the scheme that was framed under the provisions of the earlier Act. The scheme commences with a declaration that the Board was convinced that, for proper administration of the Mutt and its movable and immovable endowments, a formal scheme should be enacted. Accordingly, after consulting the Matadhipati of the Mutt and other interested parties, the Board proceeded to draft and adopt the scheme. The scheme was intended to become effective on 6 September 1939, the date on which it was formally framed. However, the scheme was never put into operation, apparently because the Executive Officer failed to take effective steps to implement it and because the appellant’s predecessor initiated litigation challenging the scheme. When a notice was served on the appellant in 1952, suggesting that the Executive Officer might assume control of the Mutt and its properties, the present writ proceedings were instituted. Throughout the lengthy litigation, the status quo has been maintained and the scheme has remained unimplemented to the present day. The scheme contains fifteen clauses and essentially assigns the administration of the Mutt and all its endowments to a hereditary trustee together with two non‑hereditary trustees appointed by the Board. These non‑hereditary trustees may be removed by the Board for good and sufficient cause, and the Board’s order in that regard is final. The Board is empowered to appoint an Executive Officer who will receive a salary of Rs. 60 per month and who must furnish a security of Rs. 5000 to the Board’s satisfaction. The Executive Officer is responsible for the day‑to‑day administration of the Mutt, must answer to the trustees, and is required to maintain accounts for their inspection. The trustees are required to convene once a month at the Mutt premises to discharge their duties, to examine the Executive Officer’s accounts and to supervise his work generally. The Board also retains the authority to issue directions from time to time concerning the internal management of the Mutt. Thus, although the scheme was framed in 1939, its essential features resemble later schemes introduced by legislation or judicial decisions for the governance of public charitable institutions such as the present Mutt. Counsel for the appellant does not contest that the provisions of the earlier Act and the scheme derived from it were valid at the time they were enacted. Nevertheless, he argues that the earlier Act has been

In this matter, the Court examined the contention that the scheme currently governing the Mutt, although originally framed under the Madras Hindu Religious Endowments Act of 1927, must now be tested for conformity with the provisions of the Madras Hindu Religious Endowments Act XIX of 1951. The argument relied upon the language of section 103(d) of the 1951 Act. That provision declares that, despite the repeal of the 1927 Act, every scheme that was settled or modified by a court under the earlier Act or under section 92 of the Code of Civil Procedure, 1908, shall be deemed to have been settled or modified by a court under the 1951 Act and shall therefore have effect as if it were created under the later legislation. The counsel for the petitioner argued that, because the present scheme was initially framed under the earlier statute, section 103(d) now requires the scheme to be treated as a scheme settled or modified under the 1951 Act. Consequently, the petitioner submitted that the Court must inquire whether each provision of the scheme aligns with the substantive provisions of the 1951 Act, and that any provision found inconsistent should be altered to achieve conformity.

To support this position, the counsel for the petitioner referred to the observations of Lord Asquith of Bishopstone in East End Dwellings Co. Ltd. v. Finsbury Borough Council (1952) AC 109 at p. 132, wherein the Lord said, “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 had in fact existed, must inevitably have flowed from or accompanied it.” Relying on that passage, the petitioner urged that a full‑blown application of the deeming provision in section 103(d) would leave no room for rejecting the test that the petitioner proposed.

The Court found this line of reasoning unconvincing. While agreeing that section 103(d) indeed deems a scheme settled or modified under the earlier Act to be settled or modified under the 1951 Act, the Court held that the purpose of the provision is merely to give the scheme operative force as if it had been made under the later Act. The provision was not intended to reopen the scheme for a fresh review against the substantive requirements of the 1951 Act and to reshape it in order to achieve compliance. The Court pointed out that this interpretation is reinforced by the remaining sub‑clauses of section 103. For example, section 103(a) provides that rules, notifications, certificates, orders, decisions, proceedings, actions, schemes and related acts undertaken by the Government, the Board, its President or an Assistant Commissioner under the earlier Act shall, to the extent that they are not inconsistent with the 1951 Act, be deemed to have been made, issued, taken or settled under the corresponding provisions of the later Act and shall have effect accordingly. This structure shows that the legislature intended a continuity of existing measures only when they did not conflict with the newer statute, rather than a wholesale re‑evaluation of those measures.

The Court explained that any rule, notification, order, decision, proceeding, action, or scheme that was created under the earlier statute and is not inconsistent with the later Act shall be treated as if it had been made, issued, passed, taken, settled or done by the proper authority under the corresponding provisions of the later Act, subject to the conditions of clause (b). By providing for the continuation of such rules, notifications and orders insofar as they do not conflict with the later Act, section 103(b) also allows those rules, notifications and orders to be modified. In other words, sections 103(a) and 103(b) together show that the legislature intended that actions taken under the earlier Act should continue only when they are consistent with the provisions of the later Act. The same approach is reflected in sections 103(f), (g) and (h). When section 103(d) is read together with these other subsections, it becomes clear that the question of whether the schemes to which section 103(d) applies are consistent with the later Act is irrelevant, because the provision makes no reference to that aspect. Consequently, the schemes referred to in section 103(d) are deemed to have been settled or modified under the later Act without any examination of whether every provision of those schemes is justified by or aligns with the later Act. Therefore, the contention that the deeming clause of section 103(d) requires a prior review of the schemes before they can be continued is rejected. This, however, does not imply that the later Act lacks a mechanism for modifying such schemes. Section 62(3)(a) expressly provides that any scheme for the administration of a religious institution that has been settled or modified by the Court in a suit under sub‑section (1), on appeal under sub‑section (2), or any scheme deemed under section 103(d) to have been settled or modified, may be altered or cancelled at any time by the Court on an application made by the Commissioner, the trustee, or any interested person. This provision demonstrates that a scheme governed by section 103(d) is automatically continued by operation of that clause, but it remains open to modification if the appropriate procedure under section 62(3) is followed. Thus, reading sections 103(d) and 62(3) together, the Court found that the argument advanced by Mr Sastri did not prevail.

The Court observed that the consistency of the scheme could not be examined in a writ proceeding, and that such an enquiry could not be entertained. It further explained that, unless the scheme is altered in accordance with section 62(3), the scheme in its entirety will be deemed to have been made under the later Act and will consequently be treated as a valid scheme. This, the Court said, is precisely the purpose of the provision. Accordingly, the Court held that it was not required to consider the additional arguments raised by Mr Sastri, who contended that certain clauses in the scheme were inconsistent with the provisions of the later Act.

The Court then turned to another point raised by Mr Sastri. He asserted that although the scheme might have been valid at the time it was framed, the fact that it had not been actually enforced before 26 January 1950 made it open to the appellant to challenge the scheme’s validity on the ground that it deprived him of his fundamental right under Article 19(1)(f) of the Constitution and was therefore invalid. Mr Sastri acknowledged that the fundamental rights guaranteed by the Constitution are not retrospective, but he argued that this acknowledgment did not answer his plea, because the deprivation of his property rights was occurring for the first time in 1952. Consequently, he claimed that the scheme could be challenged as being contrary to his fundamental right under Article 19(1)(f). To support this line of argument, Mr Sastri relied upon observations made by Mukherjea J. in the case of R.S. Seth Shanti Sarup v. Union of India and Others, reported in A.I.R. 1955 S.C. 624. In that precedent, a partnership firm known as Lallamal Hardeodas Cotton Spinning Mill Company, of which the petitioner was a partner, was engaged in the production and supply of cotton yarn. When the mill was found to be operating at a loss, it was closed on 19 March 1949. Subsequently, on 21 July 1949, the Government of Uttar Pradesh issued an order purportedly exercising its authority under section 3(f) of the Uttar Pradesh Industrial‑Disputes Act, 1947, appointing one of the partners as “authorised controller” of the undertaking. That order directed the authorised controller to take possession of the mill to the exclusion of the other partners and to run it under the general supervision of the District Magistrate of Aligarh. Later, in 1952, the Union of India issued an order under section 3(4) of the Essential Supplies (Temporary Powers) Act, 1946, appointing the same individual as an authorised controller under that provision and directing him to operate the undertaking to the exclusion of all other partners. The petitioner then filed a writ petition under Article 32 of the Constitution, challenging the legality of both orders on the ground that they were illegal and infringed his fundamental rights. The Court upheld the petitioner’s plea and set aside both impugned orders.

Both of the orders that had been attacked were set aside by the Court. In order to understand the effect of that decision, it was essential to recall a factual point on which the parties had agreed without dispute. That agreed fact was that each of the impugned orders fell outside the scope of the statutes under which they were purported to have been issued and that they were not supported by any provision of the relevant Acts. In other words, the Government itself admitted that the two orders were void on a legal basis.

Nevertheless, an argument was raised that, even if the orders were void, they could not be subjected to a writ under Article 32 because the first invasion of the petitioner’s right had occurred in 1949, a time when the constitutional guarantee of fundamental rights was not yet in force. In rejecting that contention, Justice Mukherjea observed that the order chiefly relied upon by the petitioner was the Central Government order dated October 1952, and that this fact alone answered the submission made by the learned Attorney‑General. The judge further noted that, assuming the deprivation of rights began in 1949 before the Constitution became operative, the continuing effect of the order from day to day must be regarded as clashing with the petitioner’s fundamental rights as soon as the Constitution came into force, rendering the order void from that date under Article 13(1). These observations formed the basis of counsel Mr Sastri’s argument.

The Court, however, declined to interpret those observations as establishing an absolute rule of law. It refused to accept the proposition that even when a citizen is deprived of his fundamental rights by a scheme that was validly framed under a valid law before the Constitution’s commencement, the mere continuation of that scheme after 26 January 1950 would automatically expose it to challenge under Article 19. Accepting such a sweeping principle would, in effect, make the substantive provisions of the Constitution concerning fundamental rights operate retrospectively, which the Court was not prepared to endorse.

In the present matter, the scheme in question had been formulated and the Executive Officer appointed as early as 1939. The Executive Officer’s inability to assume actual control over the administration of the Mutt and its properties was partly due to the appellant’s persistent litigation against the scheme and partly because of his own obstruction of its implementation. Nonetheless, when the scheme was created and the appellant’s challenge to its validity was rejected by the courts, his property rights had already been taken away. The fact that the order was never fully implemented does not alter that legal position. If Mr Sastri’s argument were accepted, every scheme of a similar nature, whether fully implemented or merely enforced, would remain vulnerable to constitutional challenge, an outcome the Court found untenable.

In this case the Court observed that schemes such as the one under discussion could not be attacked on the ground that they violated the Matadhipati’s fundamental rights under Article 19, because no such plea had ever been raised and, in the Court’s view, could not be validly raised. The reason was that fundamental rights are not retrospective in their operation. The Court therefore required that the observations relied upon by the counsel be read in the light of the factual situation just explained. The Court noted that the petitioner’s loss of property rights resulted from orders that were themselves invalid, and it was on the basis of those invalid orders that the Court had previously held the petitioner entitled to the protection of Article 19 and to invoke the jurisdiction of the Court under Article 32. Consequently, the Court found no merit in the argument that, because the scheme had not been fully implemented by 1952, its validity should be examined in reference to the appellant’s Article 19 rights. The Court concluded that the appeal contained no substantive ground for relief, that the scheme’s incomplete implementation did not revive any constitutional challenge, and that the appellant could not rely on Article 19 to overturn the scheme. Accordingly, the appeal was dismissed and the appellant was ordered to pay costs. The dismissal of the appeal was consequently affirmed.