R.L. Narasimham, C.J.
1. The material facts have been fully dealt with in my judgment in Srinivasa Ramanuja Das v. Commr. of Orissa Hindu Religious Endowments Board O. J. C. No. 120 of 1957: (AIR 1958 Orissa 83) delivered today. It is therefore unnecessary to repeat them in this judgment.
2. The main question for consideration in this application is whether the various detailed provisions made in the scheme dated 14-1-1954 settled by the Endowment Commissioner, Orissa and his associate officer for the administration of Dakshinaparswa Math, are invalid as either offending the Constitution or the relevant Sections of the Orissa Hindu Religious Endowments Act 1951 (Orissa Act II of 1952) (hereinafter referred to as the new Act).
In Sadashib Prakash v. State of Orissa (S) AIR 1956 SC 432 their Lordships of the Supreme Court pointed out that though by virtue of Section 79-A of the new Act a scheme framed under the Orissa Hindu Religious Endowments Act 1939 (Orissa Act IV of 1939) (hereinafter referred to as the Old Act) shall be deemed to be a scheme framed under the new Act, it was open to the aggrieved party to attack the scheme on any of the grounds available under the present law.
3. The scheme was framed prior to the decisions of the Supreme Court in Commissioner of Hindu Religious Endowments v. Lakshmindra Thirthe Swamiar 1954 SCR 1005: (AIR 1954 SC 282); Jagannath Ramanuj Das v. State of Orissa 1954 SCR 1046: (AIR 1954 SC 400) and Ratilal Panachand v. State of Bombay, 1954 SCR 1055: (AIR 1954 SC 888) in which the scope of Article 26 (b) and (d) of the Constitution was fully explained. In the Shirur Math case 1954 SCR 1005: (AIR 1954 SC 282) it was pointed out by their Lordships of the Supreme Court at page 1019 (of SCR): (at p. 288 of AIR):
'In the conception of Mahantaship both the elements of office and property, of duties and personal interest are blended together and neither can be detached from the other. The personal or beneficial interest of the Mahant in the endowments attached to an institution is manifested in his large powers of disposal and administration and his right to create derivative tenures in respect to the endowed properties and these and other rights of a similar character invest the office of the Mahant with the character of a proprietary right which, though anomalous to some extent, is still a genuine legal right'. It was further pointed out that
'the Mahant has the right to enjoy this property or beneficial interest so long as he is entitled to hold his office. To take away this beneficial interest and leave him merely to the discharge of his duties would be to destroy his character as a Mahant altogether .....A mahant's duty is not simply to manage the temporalities of a math. He is the head and superior of spiritual fraternity and the purpose of the math is to encourage and foster spiritual training by the maintenance of a competent line of teachers who could impart religious instructions to the disciples and followers of the math and try to strengthen the doctrines of the particular school or Order of, which they profess to be adherents. This purpose cannot be served if the restrictions are such as would bring the Matadhipathi down to the level of a servant under a State Department (page 1020 ibid (SCR): (at p. 289 of AIR ))'. While discussing the scope of Article 26 (b) and (d) their Lordships pointed out that 'religion' includes also religious practices according to the tenets of a particular sect and there can be no legislation interfering with these religious practices in view of the fundamental right guaranteed by Article 26(b).
As regards the properties of a math, though by virtue of Clause (d) of Article 26 the Legislature has power to make a law for the administration of those properties yet that law cannot completely take away the power of administration from the denomination to which the endowment belongs and vest it in any other body. In other words any law providing for the administration of an endowment must scrupulously safeguard the right of the particular denomination to which the endowment belongs, to administer the same to the exclusion of persons belonging to other denominations or other religious faiths. '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 violation of the right guaranteed under Clause (d) of Article 26.' See 1954 SCR 1005 at p. 1029: (AIR 1954 SC 282 at p. 291) and 1954 SCR 1055 at p. 1064: (AIR 1954 SC 388 at p. 392).
4. It was again observed in the Shirur Math case 1954 SCR 1005 at p. 1033: (AIR 1954 SC 282 at p. 293) that a Mahant has large powers of disposal over the surplus income of the endowment and this power of disposal over the surplus income should not be taken away from him in such a manner as to impair his dignity and efficiency as head of the institution.
5. In the new Act also Sections 72 and 72-A were specially inserted so as to avoid any repugnancy to the provisions of the Constitution. These two Sections say that nothing in the Act shall authorise any interference with religion and the spiritual functions of the head of the Math or authorise any contravention of the rights of any religious denomination guaranteed by Clauses (a), (b) and (c) of Article 26 of the Constitution.
6. In view of the aforesaid decisions of the Supreme Court in the Shirur Math case 1954 SCR 1005: (AIR 1954 SC 282) and in the Bombay case, 1954 SCR 1055: (AIR 1954 SC 388) any scheme for the administration of a math must conform to the following principles.
(i) Inasmuch as the Mahant of a math has 'property rights' in the endowment of the math, unreasonable restrictions should not be placed on his enjoyment of those rights (page 1019 ibid (SCR): (p. 288 of AIR) ).
(ii) The restrictions would be unreasonable if they are calculated to make the Mahant unfit to discharge the duties which he is called upon to discharge and he should not be brought down to the level of a servant of a State Department (page 1020 ibid (SCR): (p. 289 of AIR) ).
(iii) As the main purpose of a math is to encourage and foster spiritual training and to strengthen the doctrines of the particular school to which the Math belongs, any scheme for the administration of the math should not hamper the Mahant in the discharge of these duties, but should on the contrary, facilitate the performance of those duties, (page 1020 ibid (SCR): (p. 289 of AIR)).
(iv) By virtue of Article 26(b). of the Constitution the Mahant should have complete freedom to decide what rites and ceremonies are essential according to the tenets of the sect to which the math belongs and no outside authority has any jurisdiction to interfere with his decision in such matters (page 1023 ibid (SCR): (p. 290 of AIR)).
(v) But the scale of expenditure to be incurred in connection with those religious observances may be controlled and regulated by secular authorities in accordance with any law made by the Legislature inasmuch as it could not be the injunction of any religion to destroy the institution and its endowment by incurring wasteful expenditure on rites and ceremonies (page 1029 ibid (SCR): (p. 291 of AIR) ).
If the expenditure on these rites is likely to deplete the endowed properties or affect the stability of the institution proper control can certainly be exercised by State agencies as the law provides (page 1065 ibid (SCR): (p. 392 of AIR)).
(vi) Though the Legislature is competent to pass an Act for the administration of a math that Act must leave the administration to the religious denomination to which the math belongs subject to such restrictions and regulations as it might choose to impose. If, however, the law takes away the right of administration from the hands of the religious denomination altogether and vests it in any other body such a law would be invalid (pages 1029 and 1064 ibid (SCR): (pp. 291 and 392 of AIR)).
(vii) The Mahant has unfettered discretion to dispose of the surplus income of a math, except in respect of expenses for personal use unconnected with the dignity of his office. This power of disposal of the surplus cannot be taken away or restricted either directly or indirectly. (pages 1033 and 1034 ibid (SCR): (p. 293 of AIR).
(viii) In fixing the standard scale of expenditure for the various rites and ceremonies in the math (dictam) if the law or the scheme requires the approval of the Endowments Commissioner such a provision will not amount to an unreasonable restriction on the Mahant's right and would be valid (page 1034 of (SCR): (p. 293 of AIR)).
(ix) Personal gifts or Pathakanikas made to the Mahant either by his disciples or by his admirers and worshippers are his absolute property and no law or scheme can restrict his powers of disposal over the same. Duobtless if he dies without disposing of these personal gifts, they may become part of the assets of the Math. But during his life time they should be left untouched (page 1037 ibid (SCR): (p. 294 of AIR)).
7. The scheme will undoubtedly require complete revision in the light of the aforesaid principles because, as already pointed out, the scheme was prepared at a time when the law relating to the scope of Article 26 of the Constitution and the position of a Mahant of a math, was not clear. I shall now point out some of the glaring defects in the scheme and leave it to the Endowments Commissioner to modify the scheme in the light of the observations in this judgment and in the judgments of the Supreme Court referred to above, after giving the present Mahant an opportunity of making any representation if he desires to do so.
Clause (3): This clause says that the math shall be administered by a Board of Trustees not exceeding five in number, including the Mahant and four i other persons to be appointed by the Endowments Commissioner. It does not expressly say that the four other trustees should also be of the same persuasion to which the math belongs. An affidavit was filed before me to the effect that the four other trustees are not Shri Vaishnavas following the school of Ramanuja. This clause, in its present form, will offend Article 26 of the Constitution. It must be made clear that the trustees should all be Shri Vaishnavas of the School of Ramanuja to which the math belongs.
On behalf of the Endowments Commissioner, however, Sri S. Mohanty urged that Section 42(3)(c) of the new Act requires that the other trustees should be persons having interest in the math and that every Hindu can be said to have an interest in the math within the meaning of the new Act. In support of this argument he relied on the definition of the expression 'person having interest' in Section 3(x) of the new Act where it is stated that in the case of a math, it means a person professing the Hindu religion to which the math belongs.
The language of this definition is somewhat unhappy. It is not clear whether the words 'Hindu religion to which the math belongs' means the Hindu religion in general or that sect of the Hindu religion to which the math belongs. It is well-known that Maths are purely sectarian institutions and are established with a view to propagate the tenets of a particular sect amongst Hindus. In the old Act, however, the corresponding definition clause, namely Section 6(10) was better drafted, and that clause made it clear that a person of the religious persuasion to which the math belongs would alone be a person having interest'.
Though the drafting of the expression in the new Act is not satisfactory, I think both the definitions convey the same idea, i.e., only those persons who belong to the religious denomination to which the Math belongs can be said to have an interest in the institution. If wider interpretation be given to the definition in Clause 3(x) of the new Act, it may offend Article 26(d) of the Constitution by allowing an institution belonging to a particular denomination to be administered by persons of another denomination, even though both the denominations may be sects within the Hindu religion, Clause (3) of the scheme should therefore be re-drafted as suggested above.
Clause (5):-- This clause gives power to theCommissioner to remove any member of the Boardof Trustees without assigning any reason, the onlyrestriction being that he shall hold it to be necessaryin the interests of the institution to take such adrastic step. As the Mahant also is a member of theBoard of Trustees this clause would confer power on the Commissioner to remove him from Mahantship. Such a provision will be outside the scope of Clause (c) of Sub-section (3) of Section 42 of the new Act which permits the Commissioner, while settling scheme, to associate some persons with the trustee or to constitute a separate body for participating or assisting in the administration of the endowments. That provision in the Section does not authorise the complete removal of the hereditary trustee of a math or replacement by some other person. It should be made clear in Clause (5) of the scheme that it does not apply to the Mahant of the math. Moreover, rules of natural justice require that before removing any member of the Board of Trustees (excluding of course the Mahant) the Commissioner should give him an opportunity to be heard.
Clause (6):-- For the reasons given while discussing Clause (5) it should be made clear in this clause also that it does not apply to the Mahant. Succession to Mahantship depends on the special customs prevailing in each institution and in cases of disputed succession the new Act gives ample powers to the Commissioner to make suitable interim arrangements.
Clause (7).-- This clause authorises the Board of Trustees to elect a President from amongst themselves. It does not say that the Mahant shall be the President. In view of the peculiar position of the Mahant as explained by the Supreme Court in the Shirur math case, it will very much impair the dignity of his office, if he is not made President of the Board of Trustees. This clause also should be redrafted.
Clauses (13) and (14):-- These clauses should be completely re-cast so as to make it clear that on matters of religion, religious practices and rituals in the math, the Mahant's paramount position is recognised and the Executive Officer's action is made subject to his control and supervision and not subject to the control and supervision of the other members of the Board of Trustees or of the Commissioner. Adequate powers should be conferred on the Mahant to take disciplinary action against the subordinate staff of the math who may not obey his instructions, so far as the religious side of the math is concerned. Clauses (17) and (18):-- It is not clear as to whether the hereditary office-holders mentioned in these two clauses refer to Pujaris, Archakas and other persons, in charge of the performance of religious rites. Such hereditary office-holders should be under the disciplinary control of the Mahant and not of the Board of Trustees, though there can be no objection if the control is exercised through the Executive Officer.
Clause (20):-- Though Mr. M. Mohanty on behalf of the Mahant objected to this clause I think the scale of expenses for the 'dictam' should be subject to the approval of the Endowments Commissioner. As pointed out by their Lordships of the Supreme Court in the Shirur Math case though the Mahant has complete freedom as regards religion and religious practices inside the math, yet as regards expenditure to be incurred for such purposes, he can be subject to the control of the Commissioner.
Clauses (21), (22), (24), (25), (26), (27), and (28):These clauses deal with the preparation of the budget and provision for expenditure on various itemsaccording to the following maximum percentages:
Seva Pujaand Festivals.
40 per cent.
20 per cent.
Repairs to buildings, construction
20 per cent.
Charity and allied purposes '.
5 per cent.
Reserve Fund ....
5 per cent.
Personal and medical expenses of the Mahant.
2 per cent.
3 per cent.
5 per cent.
All these clauses will have to be completely revised. Only 2 per cent of the total income is set apart for the personal and medical expenses of the Mahant. I have already quoted the observations of the Supreme Court to the effect that the Mahant has large powers of disposal over the surplus income of the math, and the scheme by a clever device leaves practically no surplus income at the disposal of the Mahant (2 per cent being a negligible amount), thereby materially impairing the dignity of his office. It should be possible to redraft these clauses bearing in mind the principles laid down in this judgment so as to leave some surplus at the disposal of the Mahant with a view to enable him to maintain the dignity of his office and also to propagate the tenets of the Visishtaadwaita School of Sri Vaishnavaism which is the main purpose for which the math was founded.
Clause (35):-- This clause authorises the Commissioner, in times of emergency, to completely supersede the Board of Trustees and arrange for the administration of the Math through an Executive Officer excluding the Mahant altogether. This will amount to unreasonable restriction on his property rights in the math. If the Board of Trustees do not function properly, the Executive Officer may be directed to work under the control and supervision of the Mahant subject of course to the general supervision of the Commissioner on secular matters.
Clause (37):--This clause lays that all offering in cash, or kind, or livestock made to the math shall form part of the endowment and the Board shall take possession of the same. With a view to avoid any ambiguity it may be made clear that personal gifts made to the Mahant are outside the scope of this clause. They are his personal property.
8. For the aforesaid reasons, though the prayer of the petitioner for quashing the scheme is rejected, the Commissioner of Endowments is directed to modify the scheme according to law, as indicated above bearing in mind the provisions of the new Act, the observations in this judgment and those in the judgments of the Supreme Court in 1954 SCR 1005: (AIR 1954 SC 282); 1954 SCR 1046: (AIR 1954 SC 400) and 1954 SCR 1055: (AIR 1954 SC 388) after giving the petitioner an opportunity to make his representation. Both parties will bear their own costs.
G.C. Das, J.