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 trustee of three temples, viz., Mallikarjuna Swamy Temple, Anjaneya Temple and Somalapura Anjaneya Swamy temple, situate at Malapanagudl 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 Section 18 of the Madras Religious and Charitable Endowments Act, 1951. The first respondent passed orders on 21-8-1969 dismissing the 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.
3. Petitioners in W. P. No. 6542 of 1969 are also devotees of the temples in question. The first petitioner fs 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 above said 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. Article 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 Kaupeta, 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 Article 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 tile said authorities.'
They came to the conclusion that Sections 39 and 41 are ultra vires the Constitution and as such should be declared invalid.
6. 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 : AIR1959Ori5 , Ram Chandra Deb v. State of Orissa, this aspect has been considered. Referring to the decision of the Supreme Court reported in : 1SCR1055 , 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 Article 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.'
7. In support of his contention, the learned counsel for the respondents relies on the observation of the Orissa High Court, : AIR1959Ori5 , 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 Article 26(d) '.
This observation will not be of much avail to the respondents in view of the Supreme Court decision reported in : 7SCR32 , 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.
8. Sri M. R. Achar next invited our attention to the observation of the Supreme Court reported in : 1SCR1005 , Commr., Hindu Religious Endowments, Madras v. Lukshmindra 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.' 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 : 1SCR1055 , Ratilal Panachand Gandhi v. State of Bombay. With reference to Article 26, it was observed as follows:--
'......... So far as Article 26 is concerned, it deals with a particular aspect of the subject of religious freedom. Under thisArticle, 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 Article 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; hut here again it should be remembered that under Article 2(3 (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.'
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. Section 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.
The reasoning of this Court in Mukundaraya Shenoy's case. AIR 1060 Mys 13 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 Shenov'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 alligations 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.
9. 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.
10. Petitions are allowed. Each party will bear its own costs.
11. Petitions allowed.