Judgement

This is an application for the issue of certiorari or any other appropriate writ to quash the order passed by the Government of Andhra in G. O. Ms. 689 dated 30th of June 1954 and that of the Commissioner, Hindu Religious and Charitable Endowments, dated the 17th day of March 1953.

2-3. The petitioner is the Mathadhipati of Sri Gavi Math, Uravakonda, Anantapur District. The 1st respondent is the State of Andhra. The Commissioner of Hindu Religious and Charitable Endowments, Andhra State, is the 2nd respondent. Respondents 3 and 4 are persons who had filed an application before the Commissioner of Hindu Religious and Charitable Endowments for sanction to file a suit for the removal of the petitioner on the ground that he mismanaged the affairs of the institution and made unauthorised alienations of the Math property.

4. The institution, of which the petitioner is the Mathadhipathi, is a Math as defined under S. 9 (7) of the Madras Act II of 1927 and S. 6 (10) of Madras Act XIX of 1951, and is devoted to the propogation of the tenets of Veerashaivism. On 5th of September 1939, the Hindu Religious Endowments Board, Madras settled a scheme of administration for the said institution.

The then Mathadhipati, thereupon instituted O. S. No. 21 of 1939 on the file of the District Court, Anantapur, for setting aside the scheme or in the alternative, for modifying the same by deleting some of its provisions providing for the appointment of executive officers and non-hereditary trustees. It was therein contended by the predecessor of the present Swamiji that the institution was not a "Math" by reason of the fact that Lingayats are not Hindus, and that therefore fore the Board had no jurisdiction to frame a scheme.

In and by his judgment dated 11th February 1944, the District Judge, negatived the contention that Lingayats are not Hindus and he held that the institution was a "Math" as defined in the Act. The scheme framed by the Hindu Religious Endowments Board, Madras, was confirmed by the District Judge with certain minor modifications. Against the judgment of the District Court, Anantapur, an appeal was filed in the High Court of Judicature, Madras. During the pendency of the appeal, the then Swamiji died and the petitioner who brought himself on record, withdrew the appeal, which was accordingly dismissed.

5. The petitioner avers that Sri Gavi Math, of which he is the Mathadhipati, was founded for the promotion of Veerasiva Dharma, that the Math is very ancient one, that the Mathadhipati performs various sacred and religious duties, that he has to tour through villages, give lectures, hold religious classes, perform poojas, feed the disciples and celebrate festivals and annual jatharas; that the petitioner has been managing the institution and has been dealing with the properties of the Math as the head of the institution for its benefit in the traditional style; and that while so, respondents 3 and 4 filed an application under S. 52 (1) of the Hindu Religious and Charitable Endowments Act (XIX of 1951 hereinafter referred to as "the Act") before the Commissioner for his removal.

He contested the said application inter alia on the ground that the provisions of the Act relating to Mathas and their administration are ultra vires the Constitution and the application was not maintainable.

6. The Commissioner, by his order dated 17th of March 1953, gave sanction to respondents 3 and 4 to file a suit for the removal of the trustee of the Math. The petitioner filed a petition under Section 99 of the Act to the Government of Madras to revise the order passed by the Commissioner. That application was however, rejected on 26th of August, 1953.

After the formation of the Andhra State, the petitioner filed another application before the Government of Andhra to reconsider the matter in the light of recent judicial pronouncements, but once again the Government of Andhra rejected his application on the 30th of June 1954. Hence the petitioner filed the present application under Art. 226 of the Constitution of the reliefs above set out.

7. It may be mentioned here that pursuant to the sanction given by the Commissioner, respondents 3 and 4 have filed a suit in the District Court, Anantapur, which is now pending.

8. Before dealing with the contentions raised by the petitioners learned Counsel, it is necessary to notice the relevant provisions of the Act.

9. Section 6 (10) of the Act defines Maththus :

" Mathmeans a Hindu Religious institution with properties attached thereto and presided over by a person whose duty it is to engage himself in imparting religious instruction or rendering spiritual service to a body of disciples or who exercised or claims to exercise spiritual headship over such a body; and Includes places of religious worship or instruction which are appurtenant to the Institution."

10. Section 6 (19) which defines a trusteereads :-

" trusteemeans any person or body by whatever designation known in whom or in which the administration of a religious institution is vested, and includes any person or body who or which is liable as if such person or body were a trustee"

11. Section 6 (9) defines hereditary trusteeas :-

"The trustee of a religious institution succession to whose office devolves by hereditary right or is regulated by usage or is specifically provided for by the founder, so long as such scheme of succession is in force."

12. The material provisions of S. 52, under which respondents 3 and 4 sought the sanction of the Commissioner for filing a suit against the petitioner may be read :-

"The Commissioner or any two or more persons having interest and having obtained the consent in writing of the Commissioner, may institute a suit in the Court to obtain a decree lor removing the trustee of a math or a specific endowment attached to a math, for any one or more of the following reasons, namely :

(a) The trustee being of unsound mind;

(b) his suffering from any physical or mental defect or infirmity which renders him unfit to be a trustee;

(c) his having ceased to profess the Hindu religion or the tenets of the math;

(d) his conviction for any offence involving moral turpitude;

(e) breach by him of any trust created in respect of any of the properties of the religious institution;

(f) persistent and wilful default by him in discharging his duties or functions under this Act or any other law."

13. sub-section (2) of the section provides lor a right of appeal to the party aggrieved if the Commissioner refused to give his consent under sub-s. (1).

14. The first contention raised on behalf of the petitioner is with regard to the validity of S. 52 of the Act. The ground of attack against this section is that it infringes the fundamental rights of Mathadhipatis guaranteed by Arts. 19, 25 and 26 of the Constitution as interpreted by their Lordships of the Supreme Court in the Sirur Mutt case, Commr., Hindu Religious Endowments v. Lakshmindra Tirtha Swamiar, 1954 SCJ 335 : (AIR 1954 SC 282) (A).

By the authoritative pronouncement of the Supreme Court in the said case, it is now settled that Mathadhipatis are not trustees simpliciter and any restriction of their power which has the effect of making them mere servants and, take away the right of administration of Mathas would amount to violation of their rights guaranteed under Cl. (d) of Art. 26 of the Constitution. The validity of S. 52, however, did not arise for consideration in that case.

15. The provisions of S. 52 of the Act are analogous to those contained in S. 92 of the Code of Civil Procedure. In giving his consent under S. 52, the Commissioner is not expected to decide the rights of the contending parties. What he has to see before giving his sanction for the filing of a suit is merely whether there is a prima facie case that should be allowed to go to a court of law.

He does no more than this when he gives his consent for the institution of a suit. He does not decide the rights of the parties or the merits of the contentions and the persons against whom a suit is filed has ample opportunities to present his case before the court.

16. In a recent Bench decision of the Madras High Court in Sudhindra Tirtha Swamier v. Commissioner, Hindu Religious and Charitable Endowments, Madras, 1956-1 Mad LJ 532 : ( (S) AIR 1956 Mad 491) (B), Rajagopalan and Rajagopala Ayyangar JJ., held that S. 52 of the Act, when interpreted in the context of the rights guaranteed to Mathadhipatis, is not unreasonable and unconstitutional. At page 541 (of Mad LJ) : (at p. 498 of AIR), the learned Judges observed thus :

"Section 52 (1), it should be remembered, empowers a Commissioner or persons authorised by him to move the Court to remove a Mathadhipathi on any of the grounds mentioned in S. 52 (1) as it now stands amended. It is for the court to consider even with reference to S. 52 (1) (f) as it stands, whether a case for removal has been made out. Certainly the petitioner should not be under any apprehension, that a Court, which, is invited to consider whether a case for removal has been made out under S. 52 (1) (f) of the amended Act, would blind itself to the declaration of law by this Court and by the Supreme Court of what the Mathadhipathis real position is, and what his powers of disposal of the properties and the income of the Math are.

The very nature of the institution, the Math, of which the Matadhipathi is the spiritual head and is in charge of the temporal affairs of the Math, the two being inextricably blended, should be a sufficient safeguard against any narrow and unwarranted interpretation of S. 52 (1) (f) of what is the expenditure unconnected with the institution.The Institutioncertainly takes in the office of the Mathadhipathi as well.

As has been pointed out by this court and by the Supreme Court in the Shirur Math Case, 1954 SCJ 335 : (AIR 1954 SC 282) (A), the real limitations on the Mathadhipathi are that he should not spend any of the monies of the Math for wicked or immoral purposes. Certainly, wicked and immoral purposes would be purposes unconnected with the institution within the meaning of S. 52 (1) (f) of the Amended Act.

Since S. 52 (1) (f) would have to be construed in the light of the law on the subject of the Matadhipathis rights to expend monies of the Math, as explained by the Supreme Court and the law has to be applied and enforced by the ordinary Civil Courts of the land, we are unable to hold that S. 52 (1) (f) constitutes an unreasonable and unconstitutional restriction of the fundamental right of the Matadhipathi."

17. I am in respectful agreement with the reasoning and the conclusion reached by the learned Judges.

18. The provisions of S. 52 of the Act are really made for safeguarding the interests of the trustee. They impose a restriction on the ordinary right of a litigant to institute a suit in a Civil Court by making the sanction of the Commissioner a precondition for filing a suit. Its object is to prevent frivolous and harassing suits being brought against the trustees, and in my opinion, this provision is really in the interests of the trustees. For this reason also it must be held that the provision does not amount to a restriction on the rights of Matadhipathis.

19. It is then contended for the petitioner that a Mathadhipati discharges both secular and temporal duties, that a mahants duty is not simply to manage the temporalities of a math, that he is the head of a spiritual fraternity and there can be no removal of Mathadhipati in so far as he performs his spiritual duties. The avowed purposes and object of the Act is to see that religious trusts and institutions, wherever they exist are properly administered.

The preamble itself states that it is an Act to provide for the better administration and governance of Hindu Religious and Charitable Institutions and Endowments. It is the secular administration of religious institutions that the Legislature seeks to control. As has been pointed out by the Supreme Court in the Shirur Math Case, 1954 SCJ 335 : (AIR 1954 SC 282) (A), the object is to ensure that the endowments attached to religious institutions are properly administered and their income is duly appropriated for the purposes for which they are founded or exist. No one can prevent a Mathadhipati from exercising his rights as a spiritual preceptor.

So long as there is a body of persons who are willing to acknowledge the Mathadhipathi as their spiritual head, there is no question of his being deprived of his spiritual functions. Indeed, the learned government pleader did not attempt to controvert this position.

20. The next contention raised for the petitioner is that neither the order of the Commissioner according sanction to respondents 3 and 4 to institute a suit nor the order of the Government passed in revision under S. 99 of the Act, contains reasons and that therefore the orders are bad. It is contended by the learned Government Pleader that the order under S. 52 granting sanction is not a judicial or quasi-judicial order and is purely an administrative order, and in support of this contention he relied upon the decision of the Allahabad High Court in U. P. Allahabad, Shantanand Saraswati v. Advocate-General, (S) AIR 1955 All 372 (C).

There the Division Bench consisting of Raghubar Dayal and Agarwala JJ., were considering the nature of an order passed by the Advocate-General giving sanction under S. 92 of the Code of Civil Procedure. The learned Judges held that S. 92 or any other provision of the Code does not require the Advocate-General to hold any enquiry and that in giving or refusing sanction he acts merely in an executive or administrative manner.

They did not agree with the view taken by the Travancore Cochin High Court in Abu Backer v. Advocate-General of Travancore Cochin State, AIR 1954 Tray-C 331 (D), that the Advocate-General acts quasi-judicially in giving his consent under S. 92, C. P. C. They concluded that in giving or refusing consent under S. 92, the Advocate-General may on such materials as may be made available to him, arrive at his own conclusion and give or withhold consent and it is not a matter to be investigated in a Court of law whether the consent was given on proper materials after holding a proper enquiry or not.

I am in agreement with the view taken by the learned Judges. Applying the principle of the Allahabad decision, I am of opinion that the propriety and correctness of the conclusion reached by the Commissioner in giving or withholding consent under S. 52 of the Act, is not a matter to be investigated in a court of law. It may also be pointed out that in the present case, the Commissioner gave an opportunity to the petitioner and, the petitioner filed his objections. His counsel was heard and the ultimate order passed by the learned Commissioner was passed after giving to the petitioner an adequate opportunity Of being heard at the enquiry.

21. as has already been stated, pursuant to the consent given by the Commissioner, respondents 3 and 4 have already filed a suit in the District Court of Anantapur and it is open to the petitioner to raise all objections which are open to him under law. The fact that sanction has been accorded for the filling of the suit has not the result of pre-judging the matters arising for determination in the suit.

22. I am therefore constrained to hold that the petitioner is not entitled to any relief in this Writ Petition. It is therefore dismissed with costs.

Petition dismissed.