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Case Number

Writ Petns. Nos. 4785 and 6542 of 1969

Attorney(S)

For the Appellant: C.S. Kothavale, K.S. Puttaswamy, M.R. Achar, Advocates.

Judges

K.R Gopivallabha Iyengar
M. Sadanandaswamy, JJ.

Acts

Section 41 read with Section 39 of the Madras Hindu Religious and Charitable Endowments Act, 1951 (hereinafter called the Act).
S. 18 of the Madras Religious and Charitable Endowments Act, 1951.
Area Committees. Section 19(5)
sub-sections (1)(a), (2), (3) or (4)(a),

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Smart Summary

Structured Summary of the Court's Opinion

Factual and Procedural Background

The two writ petitions were heard together because common questions arose. In Writ Petition No. 4785 of 1969 the petitioner — a trustee and devotee of three temples (Mallikarjuna Swamy Temple, Anjaneya Temple and Somalapura Anjaneya Swamy temple at Malapanagudi village, Hospet Taluk, Bellary District) — alleged that after his father's resignation he was appointed trustee in November 1960. On 30-5-1969 the Area Committee of Bellary passed a resolution appointing respondents Nos. 5 to 9 as trustees for those temples. The petitioner filed a revision petition under Section 18 of the Madras Religious and Charitable Endowments Act, 1951; the first respondent dismissed that revision on 21-8-1969. The petitioner then filed the present writ petition seeking to quash the Area Committee resolution No. 142.ADC/68-69 dated 30-5-1969 and the order dated 21-8-1969.

Connected Writ Petition No. 6542 of 1969 was filed by devotees (including the hereditary pujari of Mallikarjuna Swamy Temple). They too challenged the Area Committee resolution of 30-5-1969 appointing respondents (numbered 3–7 in that petition) as trustees for five years, seeking a declaration that the resolution was illegal, null and void and that those respondents were not legally constituted trustees.

Legal Issues Presented

Whether the Area Committee had the competence to appoint trustees of the temples under Sections 39 and 41 of the Madras Hindu Religious and Charitable Endowments Act, 1951, in view of this Court's earlier decision in K. Mukundaraya Shenoy (AIR 1960 Mys 18) which struck down those provisions.
Whether Article 26 (in particular clause (d)) of the Constitution applies to the temples in question and whether the Act (by Sections 39 and 41, read with other provisions) takes away the right of administration from a religious denomination.
Whether the statutory provisions that restrict office-holders to persons professing the Hindu religion (Sections 9 and 22) preserve any right of administration in the religious denomination or otherwise save the impugned provisions from being invalid.
Whether the resolution of the Area Committee dated 30-5-1969 and the order dated 21-8-1969 must be quashed as made under provisions held to be invalid.

Arguments of the Parties

Petitioners' Arguments

The Area Committee was not competent to pass the impugned resolution because Sections 39 and 41 of the Act were struck down as invalid by this Court in K. Mukundaraya Shenoy (AIR 1960 Mys 18).
Consequently, the resolution dated 30-5-1969 and the administrative order dated 21-8-1969 (which relied on those sections) should be quashed.

Respondents' Arguments

The decision in K. Mukundaraya Shenoy does not apply to these temples because the temples are public Hindu temples open to all Hindus; the decision in that case dealt with sectional or denominational temples (a specific community) and therefore Article 26 is wholly inapplicable to the present temples.
Because the temples are public Hindu temples (all Hindus entitled to worship), Hindus in the larger sense do not constitute a religious denomination in the sense that would trigger Article 26 protections applicable in Mukundaraya Shenoy.
Sections 9 and 22 of the Act require that officers and trustees be persons professing the Hindu religion; this, it was submitted, prevents the Act from taking the right of administration away from the religious denomination (i.e., Hindus at large), and thus the impugned appointment power under Sections 39 and 41 should be seen as compatible with Article 26.
The respondents relied on an observation in the Orissa High Court decision (AIR 1959 Orissa 5, Ram Chandra Deb) to the effect that entrusting administration to a managing committee consisting only of Hindus does not amount to taking administration away from a religious denomination so as to offend Article 26(d).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
AIR 1960 Mys 18, K. Mukundaraya Shenoy v. State of Mysore	The Court had held that Sections 39 and 41 (of the Act) were ultra vires the Constitution because the Act, by those sections, completely took away the right of administration from a religious denomination and vested it in other authorities, thereby violating Article 26(d). The decision observed that trustees appointed under the Act would be "virtually servants of the State".	The present Court applied the reasoning and conclusions of Mukundaraya Shenoy to the temples in question, finding no satisfactory reason to distinguish that decision and holding that Sections 39 and 41 are non est in relation to religious institutions of a larger section of Hindus as well. Consequently, the Area Committee resolution made under those sections was declared invalid and quashed.
AIR 1959 Orissa 5, Ram Chandra Deb v. State of Orissa	The Orissa High Court observed that the followers of Hinduism could be regarded as a religious denomination for the purposes of Article 26, and further observed that entrusting administration to a managing committee consisting only of Hindus might not constitute taking administration away from a religious denomination so as to offend Article 26(d).	The Court considered the Orissa High Court's observations on whether Hindus constitute a religious denomination and whether administration vested in a committee of Hindus offends Article 26. It noted the Orissa decision but also noted subsequent Supreme Court treatment (see Raja Bira Kishore Deb) which limited the usefulness of that observation in the present context.
AIR 1964 SC 1501, Raja Bira Kishore Deb v. State of Orissa	The Supreme Court, on appeal against the Orissa decision, did not permit the argument under Article 26(d) because it was not properly raised in the pleadings before the High Court; thus the Supreme Court rejected that particular contention on procedural grounds.	The Court observed that because the Supreme Court rejected the Article 26(d) argument on the pleadings ground, the earlier Orissa observation (AIR 1959 Orissa 5) "will not be of much avail" to the respondents in the present petitions.
AIR 1954 SC 282, Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt	The Supreme Court stated: "A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under Clause (d) of Article 26." (Quoted in the opinion.)	The Court recited this principle as an authoritative statement of the constitutional limit: legislation cannot take away administration from a religious denomination entirely. The Court observed, however, that the Supreme Court in that case did not pronounce on the validity of Section 39 of the Act and left certain sections out of consideration there.
AIR 1954 SC 388, Ratilal Panachand Gandhi v. State of Bombay	The Supreme Court explained the scope of Article 26: the right to administer property is subject to law ("...but only in accordance with law"). It distinguished between management of religious affairs (a guaranteed right) and administration of property (which may be regulated by valid laws), and warned that a law which takes away administration altogether would violate Article 26(d).	The Court relied on the passage from Ratilal Panachand Gandhi to frame the analysis: it examined whether the Act, read as a whole (including Sections 8, 12, 13, 15, 19, 23, 9 and 22), left any administration power in the religious denomination or instead vested absolute power in Government authorities. Finding the latter, the Court concluded the Act took away the right of administration and so applied the principle to invalidate the impugned sections as to these temples.

Court's Reasoning and Analysis

The Court proceeded by identifying the central statutory provisions and constitutional principles cited by the parties and by applying authorities to the facts as presented:

The Court first noted as undisputed fact that the temples in question are public Hindu temples and that no section of Hindus claimed exclusive management rights. This prompted the legal question whether Hindus, in the larger sense, constitute a "religious denomination" for Article 26 purposes.
The Court considered the Orissa High Court observation (Ram Chandra Deb) that Hindus could be held to form a religious denomination; it treated that observation as supportive of treating Hindus as a denomination for present purposes and for considering whether Article 26 was engaged.
The Court then analyzed statutory provisions beyond Sections 39 and 41 to ascertain whether the Act left any meaningful management power with the religious denomination. It identified Sections 8, 12, 13, 15, 19 and 23 (appointment of Commissioner and Area Committees; composition and rule-making powers; appeals; obedience to lawful orders) and observed that read together these provisions reserved what the Court characterized as "absolute powers" to the Government to administer the institutions.
The Court examined Sections 9 and 22 (which require officers and trustees to be Hindus and set age limits) and concluded that those provisions did not affect the absolute character of the Government's powers; i.e., requiring officers to be Hindus does not preserve a right of administration in the religious denomination.
Relying on Mukundaraya Shenoy (AIR 1960 Mys 18) the Court accepted the earlier reasoning that where trustees are appointed under the Act they become effectively instruments through which the State exercises management and control; that reasoning, applied to the statutory scheme as a whole, demonstrated that the Act, by virtue of Sections 39 and 41 (read with other provisions), divested the religious denomination of administration in a manner contrary to Article 26(d).
The Court considered the respondents' submission that the earlier decision should be confined and that the invalidity of Sections 39 and 41 should be limited or declared severable so as not to apply to institutions of a larger denomination. The Court found it unnecessary to decide severability in detail because it concluded that Sections 39 and 41 are non est (i.e., ineffective) in relation to religious institutions of a larger section of Hindus as well.
On application, the Court held that the Area Committee resolution of 30-5-1969 was passed under provisions (Sections 39 and 41) which this Court found to be invalid for the temples in question; hence the resolution was without jurisdiction. The earlier order dated 21-8-1969 (dismissing the revision) was also quashed as it was based on the same invalid statutory foundation.
The Court also observed there was no satisfactory material to substantiate allegations that the petitioners were actuated by ulterior motives or otherwise disentitled to relief under Article 226.

Holding and Implications

Core Ruling: The petitions were allowed; the resolution of the Area Committee dated 30-5-1969 (No. 142.ADC/68-69) and the order dated 21-8-1969 passed by the first respondent in W.P. No. 4785 of 1969 were quashed.

Implications and consequences as stated in the opinion:

The Court applied and extended the reasoning of K. Mukundaraya Shenoy (AIR 1960 Mys 18) to hold that Sections 39 and 41 of the Madras Hindu Religious and Charitable Endowments Act, 1951 are non est in relation to the religious institutions of a larger section of Hindus (i.e., the decision's effect was not confined to a narrow denominational context).
The direct legal effect on the parties is that the Area Committee's appointment of trustees under the invalidated provisions is without jurisdiction and has been set aside; the administrative order dismissing the revision is also quashed.
The Court expressly declined to find sufficient material of mala fides or ulterior motive on the part of the petitioners; each party was ordered to bear its own costs.

The opinion thus resolves the immediate controversy by quashing the specific administrative acts impugned and by treating Sections 39 and 41 as inapplicable (non est) to the temples in question; the Court relied on precedent to ground the constitutional conclusion that the challenged statutory scheme improperly divested a religious denomination of the right of administration.

Petitions allowed. Each party will bear its own costs.

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K. Eranna And Others, v. Commissioner For Hindu Religious And Charitable Endowments, Bangalore And Others,

1. As common questions arise for consideration in these two writ petitions, they are heard together and a common order is passed.

2. The petitioner in Writ Petition No. 4785 of 1969 has been the trusee of three temples, viz., Mallikarjuna Swamy Temple, Anjaneya Temple and Somalapura Anjaneya Swamy temple, situate at Malapanagudi village in Hospet Taluk, Bellary District. He is also a devotee of the temples. It is alleged that prior to his being appointed as a trustee, his father was the trustee of the above-said institutions, and on his resignation, the petitioner was appointed as a trustee for the aforesaid institutions in November 1960. The Area Committee of Bellary passed a resolution on 30-5-1969, appointing respondents Nos. 5 to 9 as trustees of the above said temples. The petitioner being aggrieved by the aforesaid resolution, filed a revision petition before the first respondent under S. 18 of the Madras Religious and Charitable Endowments Act, 1951. The first respondent passed orders on 21-8-1969 dismissing tile petitioner's revision petition. The petitioner, therefore, has filed this writ petition praying that the resolution bearing No. 142.ADC/68-69, passed by the Area Committee, Bellary, on 30-5-1969, and the Order dated 21-8-1969 passed by the first respondent be quashed. Petitioners in W.P No. 6542 of 1969 are also devotees of the temples in question. The first petitioner is a hereditary Pujari of Mallikarjuna Swamy Temple. They are also aggrieved by the resolution made by the Area Committee on 30-5-1969, appointing respondents 3 to 7, who are respondents 5 to 9 in the connected writ petition, as trustees for a period of five years. The petitioners being aggrieved by the aforesaid resolution, have filed the writ petition for a declaration that the resolution dated 30-5-1969 passed by the Area Committee, is illegal, null and void; and respondents 3 to 7 are not legally constituted Trustees of the temples in question.

4. From the true copy of the resolution of the Area Committee, it is seen that the appointment of the trustees is made in exercise of its powers under Section 41 read with Section 39 of the Madras Hindu Religious and Charitable Endowments Act, 1951 (hereinafter called the Act). It is contended by the petitioners that the Area Committee, was not competent to pass the abovesaid resolution, in view of the fact that Sections 39 and 41 of the Act have been struck down as being invalid by this Court in its decision reported in AIR 1960 Mys 18 K. Mukundaraya Shenoy v. State of Mysore.

5. The respondents contend that the decision above referred to does not apply to the temples in question. They state that “the temples in question are public Hindu Temples. All Hindus are entitled to worship in the said temples. The decision cited by the petitioners applies to sectional or denominational temples. Art. 26 of the Constitution is wholly inapplicable to the present temples. Therefore, it is not correct to state that under Section 41 read with Section 39 of the Act the Area Committee has no power to appoint trustees in respect of Public Hindu Temples” In the decision reported in AIR 1960 Mys 18 K. Mukundaraya Shenoy's case, the question relating to the validity of Sections 39 & 41 was raised in connection with the temples founded, owned and administered by a community called Gowd Saraswath Brahmin Community of Kaup Peta. This Court considered that the said community constituted a religious denomination which had the right to administer the property of the temples in accordance with law. The Court proceeded on the basis that under the scheme of management the denomination was exercising powers of control and management by appointing trustees of its own choice. In other words, the denomination was exercising its power of control, management and supervision over these institutions through their own representatives elected for that purpose. On an examination of the provisions of the Act, it was observed as hereunder:

“……… Trustees can no longer be elected by the denomination but are to be appointed by the Commissioner or the Area Committee as the case may be, then the denomination ceases altogether to have any control over the management of the institutions in question. This being the position, it can rightly be contended that the Act in question by virtue of these sections has completely taken away the right of administration from the hands of the religious denomination and has vested it in another authorities and as such violated the right guaranteed under Art. 26 of the Constitution.

Trustees appointed under the Act would virtually be servants of the State through whom the State will exercise its own power of management and control. Even the existing trustees who had been appointed by the denominations would have to function as trustees under the Act. In other words, they will be deemed to have been appointed by the authorities concerned and would be liable to be removed and dismissed by the said authorities.”

6. They came to the conclusion that Sections 39 and 41 are ultra vires the Constitution and as such should be declared invalid.

7. It is not disputed by the parties that the temples in question are Public Hindu Temples and no section of Hindus claims to have the exclusive right of management to administer the property belonging to the temples. The first contention of the respondents is that Article 26 is inapplicable as the temples in question are Public Hindu Temples. This leads to a consideration as to whether Hindus, in the larger sense, including all sections of Hindus constitute a religious denomination. In the decision reported in AIR 1959 Orissa 5, Ram Chandra Deb v. State of Orissa, this aspect has been considered. Referring to the decision of the Supreme Court reported in AIR 1954 SC 388, the Orissa High Court observed as follows:—

“If the followers of Zoroastrian religion can be held to form a separate religious denomination for the purpose of Art. 26, there seems no special reason why the followers of Hindu religion also should not be held to form a religious denomination within the meaning of the same Article. The fact that the adherents of Hindu religion are very large in number compared to those who profess Zoroastrian religion or the fact that amongst the Hindus there are Innumerable sects and sub-sects whereas amongst the Parsees there are presumably no sects at all, will not affect the legal position.” While appreciating the significance of the words “religious denomination” the Court should take a common sense view and be guided by considerations of practical necessity. It is not necessary to consider the exact connotation of the term “religion”. “Hinduism” in ordinary parlance is understood as representing a religion. It is a religious denomination of a large magnitude. It is because, certain religious denominations like Hinduism, Christianity or Islam are large and consist of sub-divisions that Article 26 refers to a section of such denomination. Proceeding on the basis that Hindus form a religious denomination within the meaning of Article 26, Sri M.R Achar, learned counsel for respondents in both the petitions submits, that in view of the provisions of Sections 9 and 22 of the Act, the rights to administer the property of the temples in question are not taken away from the religious denomination, viz., Hindus. Sections 9 and 22 of the Act read as follows:—

“9. The Commissioner, every Deputy or Assistant Commissioner and every other officer or servant appointed to carry out the purposes of this Act, by whomsoever appointed, shall be a person professing the Hindu religion, and shall cease to hold office as such when he ceases to profess that religion.”

“22. No person may succeed or be appointed to, or hold, the office of the trustees of a religious institution—

(a) unless he professes the Hindu Religion, and

(b) except in the case of a hereditary trustee, unless he is not less than twenty-five and not more than seventy years of age.”

8. In support of his contention, the learned counsel for the respondents relies on the observation of the Orissa High Court, AIR 1959 Orissa 5, referred to earlier, which is as hereunder:

“……… But so long as every member of the Managing Committee is required by law to be a Hindu it cannot be said that by taking away the administration from the sole hands of the Raja of Puri and entrusting it to a Committee consisting of Hindus only (including the Raja of Puri) the administration has been taken away from a religious denomination so as to offend Art. 26(d)”.

9. This observation will not be of much avail to the respondents in view of the Supreme Court decision reported in AIR 1964 SC 1501, Raja Bira Kishore Deb v. State of Orissa, which was a decision given in an appeal filed against the order passed in the above Orissa decision. The Supreme Court after adverting to the pleadings in the case did not allow the argument pertaining to Article 26(d) of the Constitution to be raised before it and rejected the same on the ground that no such contention was properly raised in the pleadings before the High Court.

10. Sri M.R Achar next invited our attention to the observation of the Supreme Court reported in AIR 1954 SC 282, Commr., Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, which is as follows:—

“A Law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under Clause (d) of Article 26.”

11. But, the Supreme Court did not pronounce on the validity of Section 39 of the Act. In regard to Sections 39 and 42 of the Act, the Supreme Court states that these sections are not applicable to a Math and hence are left out of consideration. Thus, there was no pronouncement of the Supreme Court on the validity of Section 39 of the Act. Our attention was invited to the observation of the Supreme Court in the decision reported in AIR 1954 SC 388, Ratilal Panachand Gandhi v. State of Bombay. With reference to Article 26, it was observed as follows:—

“……… So far as Art. 26 is concerned, it deals with a particular aspect of the subject of religious freedom. Under this Article, any religious denomination or a section of it has the guaranteed right to establish and maintain institution for religious and charitable purposes and to manage in its own way all affairs in matters of religion. Rights are also given to such denomination or a section of it to acquire and own movable and immovable properties and to administer such properties in accordance with law.

The language of the two clauses (b) and (d) of Art, 26 would at once bring out the difference between the two. In regard to affairs in matters of religion, the right of management given to a religious body is a guaranteed fundamental right which no legislation can take away. On the other hand, as regards administration of property which a religious denomination is entitled to own and acquire, it has undoubtedly the right to administer such property but only in accordance with law. This means that the State can regulate the administration of trust properties by means of laws validly enacted; but here again it should be remembered that under Art. 26(d), it is the religious denomination itself which has been given the right to administer its property in accordance with any law which the State may validly impose. A law, which takes away the right of administration altogether from the religious denomination and vests it in any other or secular authority, would amount to violation of the right which is guaranteed by Article 26(d) of the Constitution.”

12. Reliance is placed on the last sentence in the above observation of the Supreme Court in support of the respondents' contention. This observation necessitates the examination of a few provisions of the Act to find out whether the law takes away the right of administration from the religious denomination and vests it with any other or secular authority. Section 8 of the Act provides that the Government shall appoint the Commissioner and such number of Deputy and Assistant Commissioners as they think fit. Section 12 provides that the Government shall constitute an Area Committee for all temples situated in an Assistant Commissioner's division. Section 13 provides that every Area Committee shall consist of such number of members as may be appointed by the Government, not being less than three nor more than five. Section 15 provides that the Government may make rules regarding the convening of meetings of Area Committees, the quorum for, and the conduct of business at, such meetings, and all matters relating to the transaction of their business. S. 19 invests the Commissioner with certain powers in relation to the Deputy and Assistant Commissioners and Area Committees. Section 19(5) provides that any party aggrieved by an order of the Commissioner under sub-sections (1)(a), (2), (3) or (4)(a), may appeal to the Government within the prescribed time. Section 23 provides that the trustee of a religious institution shall be bound to obey all lawful orders issued under the provisions of this Act by the Government, the Commissioner, the Deputy Commissioner, the Area Committee or the Assistant Commissioner. Reading Sections 39 and 41 together the Area Committee has power to appoint trustees. It is in exercise of this power that the impugned resolution appointing the new trustees has been passed. The sections other than Sections 39 and 41 which have been considered above, indicate that the Government has reserved to itself absolute powers to administer the properties of the institutions. The religious denomination is not left with any power. It is taken away absolutely from the religious denomination. The provisions of Sections 9 and 22 of the Act which prescribe that the officers and trustees of the religious institutions shall be persons professing the Hindu Religion do not affect the absolute character of the powers vested in the Government. These provisions do not save the right of the religious denomination to administer the property of the temples.

13. The reasoning of this Court in Mukundaraya Shenoy's case, AIR 1960 Mys 18 and the conclusions reached by it with reference to the particular community which is only a section of a larger denomination of Hindus, applies to the temples in question also. The conclusion of this Court is that the “Trustees appointed under the Act would virtually be servants of the State through whom the State will exercise its own power of management and control.” This conclusion is reinforced by the several sections to which we have referred earlier vesting the Government with powers of an absolute nature. Therefore, we find no satisfactory reason to distinguish the decision of our Court in Mukundaraya Shenoy's case, AIR 1960 Mys 18 so as to confine the striking down of Sections 39 and 41 of the Act to a limited extent. It was submitted by Sri Achar that the striking down of Sections 39 and 41 by this Court should be confined so as not to apply to a larger denomination of Hindus, in view of the provisions of Sections 9 and 22 of the Act. He contended that the sections should be declared severable so as to apply to sections of a religious denomination whose powers are absolutely taken away by the provisions of the Act, or by any action taken by the authorities in exercise of their powers under the Act. It is not necessary to go into the argument relating to severability of the sections in so far as their applicability is concerned, as in our view, this Court has struck down Sections 39 and 41 of the Act and rendered them non est in relation to religious institutions of a larger section of Hindus as well. The resolution of the Area Committee which is based upon the provisions of Sections 39 and 41 of the Act which are non-existent is invalid. The resolution of the Area Committee is without jurisdiction and is liable to be quashed. There is no satisfactory material to substantiate the allegations that the petitioners are actuated by ulterior motives and are not entitled to get any relief under Article 226 of the Constitution. The circumstances that the petitioner in Writ Petition No. 4785 of 1969 was appointed as a trustee earlier under the invalid provisions of law and acted as such cannot detract from the contention that the resolution now passed by the Area Committee is totally without jurisdiction. As the resolution dated 30-5-1969 passed by the Area Committee is invalid it is hereby quashed in both the petitions. The order dated 21-8-1969 passed by the first respondent in W.P 4785 of 1969 is also quashed.

15. Petitions are allowed. Each party will bear its own costs.

Petitions allowed.

K. Eranna And Others, v. Commissioner For Hin...