R.C. Patnaik, J.
1. In these writ applications, the petitioners have challenged the vires of certain provisions of the Orissa Estates Abolition Act, 1951, as amended by the Amending Acts of 1974, 1978 and 1979. They have also challenged the vires of the notifications under section 3A of the Act and sought a declaration that the said, notification is illegal and has no application as regards them. A prayer has also been made for a direction for incorporation of a provision akin to Article 290A of the Constitution of India guaranteeing payment of annuity and for other reliefs.
2. The Orissa Estates Abolition Act, 1951 (Orissa Act 1 of 1952) coming in the wake of the constitution, made provision as the preamble indicates for abolition of rights, title and interests in land of intermediaries by whatever name known including the mortgagees and lessees of such interests between the raiyats and the state of Orissa and for vesting in the State of the said rights, title and interest. The enactment was a measure to secure economic justice for all and to that end to secure the ownership and control of all material resources of the community so that they might best subserve the common good, and to prevent the concentration of wealth and means of production to the common detriment.
3. The original Act was published in the Gazette on 9.2. 1952 and its vires was challenged forthwith. This court while repelling the challenge observed (K. C. Gajapati Narayan Deb v. State of Orissa, ILR Cut (1953)71:
'The trend of economic and political thought of the nation has insisted upon the abolition of zamindari tenure and the elimination of intermediaries between the State and the cultivator, as the first step in any general measure of agrarian reform. It has been considered that concentration of large block of land in the hands of a limited number of zamindars denying fair distribution there of to the cultivators and the existence of intermediaries between the State and the cultivators tending to in security and oppressive rents for the tillers of the soil, and the development of absentee landlordism and sub-infeudation of tenures, have produced deleterious effects on the improvement of agriculture which is the main occupation of the predominantly large rural population of the country...'
This decision was affirmed by the Supreme count in K.C. Gajapati Narayan Deo v. State of Orissa, AIR 1953 S. C. 375.
4. In 1963, the Act was amended by Orissa Act 5 of 1963. Chapter II-A containing provisions as regards public trust was inserted. Section 13-A defined 'Trust estate' as an estate the whole of the net income whereof under any trust or other legal obligation had been dedicated exclusively to charitable or religious purposes of a public nature without any reservation of pecuniary benefit to any individual. The Chapter saved vesting of estates declared as, trust estates by the tribunals constituted under the Act, vide section 13-B and 13-1. However, section 13-K(b) declared that such saving or exclusion from vesting did not' denude the State Government of its power to vest in future an estate, declared as trust estate, by issue of a notification under Section .3.
5. Orissa Act 33 of 1970 amended the principal Act by section 3 repealing chapter II-A of the principal Act, but provided by section 7 (1) that notwithstanding the repeal of chapter-II-A, all estates in respect of which claims and references made under the said chapter were pending on the date of coming into force of this act. i. e. Act 33 of 1970 would be deemed to have been excluded from operation of the vesting notification that is to say estates in respect of which claims and references' were pending on 17. 9.1970 would also be Saved and excluded from vesting, that is, would not vest. But it was declared by subsection (3) of section 7 of Act 33 of 1970 that the aforesaid exclusion of estates in respect of which claims and references were pending from vesting did not debar the State Government from vesting any such estate by issue of notification under section 3 or section 3-A. So, the net effect of the provisions contained in section 13-K(b) of Orissa Act of 1963 and section 7(2) of Orissa Act 33 of 1970 seems to b e that the estates saved. from vesting upon being declared as trust estates under Chapter-II- A and those saved from vesting under section 7 (1) o f Act 33 of 1970, though temporarily saved, were not for ever immune from vesting.
6. The principal Act was amended by presidents Act 3 of 1974. The expression 'trust- estate' was defined and was inserted as here-under :
''(oo) 'trust estate' means an estate the whole of the net income where of under any trust or other legal obligation has been dedicated exclusively to charitable or religious purposes of a public nature without any reservation of pecuniary benefit to any individual :
Provided that all estates belonging to the Temple of Lord Jagannath at Puri within the meaning of the Shri Jagannath Temple Act, 1955 and all estates declared to be trust estates by a competent authority under this act prior to the date of coming into force of the Orissa Estates Abolition (Amendment) Act 1970, shall be deemed to be trust estates.Explanation-The salary, remuneration or any allowance payable to a mutawalli in the case of a wakf or to a trustee in any other case, including a sebait or a Hindu religious trust, not exceeding fifteen percent of the income dedicated exclusively to charitable or religious purposes shall not be deemed to be a reservation of a pecuniary benefit to any individual within the meaning of this clause,'
and clause (d), insetted after clause (c) in section 7 of the principal Act was as follows :
(d) in the case of a trust estate, so much of the waste land and such of the tanks in the possession of the Intermediary, which in both cases were being exclusively used for religious purposes immediately before the date of such vesting, as may be specified.
(i) in respect of trust governed by the Orissa Hindu Religious. Endowments Act, 1951 and the Shri Jagannath Temple Act 1955, by the Commissioner of Endowmeats appointed under the Orissa Hindu Religious Endowments Act, 1951.
(ii) in respect of trusts governed by the Wakfs Act, 1954, by the Board of Wakfs constituted thereunder, and
(iii) in respect of other religious trusts, by such person or authority as may be specified by the Collector of the District A new section, section 7.B was inserted as under :
'' 7-A. If the State Government are of the opinion that any land or building (being part of a trust estate) vested in the State Government is needed for carrying out the purposes of the trust efficiently, then not withstanding any thing contained in any other law for the time being in force or in any other provision of this Act, the State Government may settle such land or building with the person who immediately before such vesting was an intermediary in respect of such land or building, subject to the payment of such fair and equitable rent as may be determined by the collector' in the prescribed manner and subject to such other terms and conditions and may be prescribed:
Provided that no such land or building shall be settled under this section :
(i) after the expiry of a period of three years from the date of vesting, or
(ii) if such land or building is held by a tenant.
and a new provision subsection (5) with a proviso was incorporated in section 8-A. Provision was made for constitution of tribunals for the purpose of determining whether or not an estate was a trust estate and for disposal of references, vide sections 8.D and 8.E By Orissa, Act 25 of 1978, two provisions were added to section 7 as Third and Fourth proviso, as under:
'Provided also that the restriction regarding the total extent of land in the ownership of an Intermediary provided under clause (b) shall not apply in relation to a trust estate belonging to a deity or a religious institution other than a Math, within the meaning of the Orissa Hindu Religious Endowments Act, 1951 which vested in the state on or. after the 18th day of March, 1974.
Provided also that no land held by a temporary lessee of an Intermediary in respect of which such lessee has acquired the rights of a raiyat under the 'Orissa Land Re forms Act, 1960, Prior to the commencement of the Orissa Estates Abulition (Amendment) Act, 1978, shall be settled with the intermediary under clause (b)'
and section 7.A was substituted by the following:
'7-A (1) If the State Government are of the opinion that any land, whether used for the porpose of hat, bazar, orchard, mine, quarry or otherwise, tank or building (being part of a trust estate) vested in the State Government is needed for carrying out the pur. poses of the trust efficiently, then not withstanding anything Contained in any other law for the time being in force or in any other provisions of this Act, the State Government may settle such land, tank or building with the person who immediately before such vesting was an Intermediary in respect of such land or tank or building subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner and subject to such other terms and conditions as may be prescribed. Provided that no such land, tank or building shall be settled under this section.
(i) after the expiry of a period of three years from the date of commencement of the Orrisa Estates Abolition (Amendment) Act, 1978.
(ii) If such land, tank or building is held by a tenant, or
(iii) If such land, tank or Building has already been settled by Government with any other person.
(2) The Intermediary with whom any property is settled under subsection (1), shall hold the property as a raiyat if the property is settled for agricultural purpose and as a tenant in other cases.'
By Orissa Act 22 of 1979, the Third proviso to section 7 was substituted by the following proviso.
''Provided also that the restriction regarding the total extent of land in the ownership of an Intermediary provided under clause (b) shall not apply in relation to-a trust estate belonging to a deity of a religious institution (not being a Math within the meaning of Orissa Hindu Religious Endowment Act, 1951) which vested in the State or after the 18th day of March, 1974.'
7. The main contentions of the petitioners in these writ applications are:
(a) that the estates once having been declared as trust estates or saved from vesting it was incompetent for the State Government to direct vesting by issuing notification under section 3.A;
(b) that the provisions in so far as they drew distinction between. a temple and a math were ultravires Article 14 of the Constitution of India, there being no intelligible differentia on which the classification was founded and there was no rational nexus between the classiffication and the object sought to be achieved.
(c) that the provisions are also ultravires Articles 25 and 26 of the Constitution of India;
(d) that despite the protective umbrella of Schedule IX, the Orissa Estates Abolition Act which was included into the Schedule by Constitution (40th Amendment) Act, 1976, was available to be challenged as regards the provision inserted into the Act after 24. 4. 1973 and the amendments of 1978, and 1979, which ware after the constitution (40th Amendment) Act. 1976, did not have the protection and were ultravires the constitution;
(e) that section 13.K (b) of Orissa Act 5 of 1963 and section 7 (2) of Orissa 33 of 1970 were ultravires; and
(f) that the estates belong to a deity and not to a math.
8. The question whether the Government have power to issue notification abolishing the estates already declared as trust estates under section 13-I of Act 5 of 1963 and estates saved from vesting under section 7(1) of Act 33 of 1970 was the subject matter of controversy in Lord Jagannath v. State of Orissa, 51(1981) C. L. T. 336. The matter is now pending before the Supreme Court in appeal and expecting that the decision therein would be delivered soon, we had deferred delivering judgment in these cases. So, there has been some -delay in giving our judgment. Support for the submission was drawn from section 5 of the Orissa General Clauses Act, 1937, which reads as hereunder:-
''5. Effect of repeal-where any Orissa'Act repeals any enactment hitherto made, or hereafter to be made, then unless a different intention appears, the repeal shall not-
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder;
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed, or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty forfeiture, or punishment as aforesaid.'
It was held:
'...............Section 13-K(b) of the Act which was in Chapter II-A clearly contained a provision authorising the State Government to make a vesting notification in respect of declared. trust estates. Admittedly, the paramount intention of the Act was to abolish intermediary interests and in sections 3 and 3-A thereof the mechanism for such abolition has been provided. Abolition has been made in different stages, Section 13-I which provided a deeming provision against vesting upon declaration of an intermediary interest as a trust estate, had the effect of saving the estate from vesting and section 13-K which had been incorporated into the statute for removal of doubts had clearly indicated that notwithstanding such declaration, Government were still entitled to direct vesting of such estate by issue of a notification under section 3. Even declared trust estates were therefore, liable for vesting and therefore the consequences of a declaration of a trust estate was not to make it immune from vesting for ever. When Chapter II-A was repealed, section 13-I as also 13-K went out of the statute book. A 'trust estate' is admittedly an 'estate' and if section 13-I previously appearing in Chapter II-A of the Act was not there, the immunity from vesting was also rot there. Since a trust estate continued to he an 'estate' it became and or remained liable to vest upon exercise of the power -provided in the Abolition Act. It is in exercise of such a power that the impugned notification under Annexfure-I has been made.'
This is an answer to the contention of the counsel for the petitioners that the State Government was debarred from issuing fresh vesting notifications in respect of estates which were trust estates under section 13-I or saved from vesting under section 7(1). Section 5 of the Orissa General Clauses Act does not assist the petitioners at all. It is only in the absence of a contrary intention that section 5 can step' in. The learned counsel has relied on State of Punjab v. Mohar Singh, Patap Singh, A. I. R. 1955 S. C. 74 and Indira Sohanlal v. Custodian of Evacuee property, Delhi and Ors., AIR 1956 S. C. 77. The authorities are of no assistance. Section 13-K(b) of Act 5 of 1963. itself saved the power of Government from issuing vesting notification in future. So also did section 7(2) of Act 33 of 1970. Moreover, the plenary power of a legislature to make law is only subject to the provisions of the Constitution. The provisions contained in section 13-K(b) of Act 5 of 1963 and section 7(2) of Act 33 of 1970 have not been shown to be inconsistent with any provision of the Constitution.
9. It has been argued that the provisions incorporated by the amendments drawing distinction between trust estates belonging to-a deity and those belonging to a Math are ultravires Article 14, there being no reasonable nexus between the enactment and the objects sought to be achieved. The main offending provision, according to the petitioners, is the Third proviso inserted to section 7(1) by Orissa Act 25 of 1978.
Religious trusts are mainly of two kinds. Debutter or endowment in favour of an idol and Math, i. e., a religious establishment endowed for the benefit of certain classes of ascetics or religious men belonging to particular sects or congregations, 'Math' in ordinary language signifies an abode or residence of ascetics. In legal parlance it connects a monastic institution presided over by a superior and established for the use and benefit of ascetics belonging to a particular order who generally are disciples or co-disciples of the superior. The primary distinction between a Debutter and a Math lies in the fact that unlike Debutter where the essential or central part of the institution is a deity or idol, the presiding element in a Math is an ascetic or religious teacher who together with his disciples and co-disciples form a spiritual family. Both a math and a Debutter owe their existence to benefactions or grant of property made by pious benefactors. In one case the grantee is an idol for whose ministration, or service the Debutter is created. In the other case, the object of the benefaction is the creation of the benefit of a fraternity of religious men at the head of which stands the superior or Mohunt, who represents the entire institution. The primary object of a Debutter is to perpetuate the worship of a deity and celebration of its rites and festivals in a particular way. There may be provisions for charities by way of feeding the poor etc. in Debutter endowment as an adjunct to the worship of the deity, but they are by no means essential. The primary purpose of a Math on the other hand is to encourage and foster spiritual learning by maintenance of a competent line of teachers who 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-vide B. K- Mukherjea's Hindu Law of Religious and Charitable Trusts, Chapters II and VII.
10. If the distinctions are borne in mind, much of the criticism of the counsel for the petitioners loses its force. For a deity's performance of daily nities and sebapuja, rites and festivals, food-grains are essential. So, it is necessary that the deity should possess land. This is the intelligible differentia that distinguishes a Math from a temple and this nexus justifies the classification between the two categories of trust estates. In our opinion, the third proviso to. section 7(1) of Act 33 of 1970 is not violative of Article 14 of the Constitution of India.
The 4th proviso is also immune from challenge. It is in furtherance of agrarian reforms in the state, where under the provisions of the Land Refor ms Act a temporary lessee of an intermediary has acquired right s of a raiyat, obviously the said land can no more be settled with the intermediary though the total extent of land of the intermediary does not exceed 33 acres. The reason being that the temporary lessee by acquisition of right of a raiyat becomes a raiyat under the state with the intermediary wiped out.
11. It has been argued that the provision as regards estates 'belonging to deities and Maths has made inroads into the rights guaranted by Articles 25 and 26 of the Constitution of India. In the Commissioner Hindu Religions Endowments Madras v. Sri Lakslunindsra Thirtha Swamiar of Sri Shirur Mutt, A. I. R. 1954 S. C. 282, Mukherjea, J. Speaking for the court observed:-
''Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that 'religion is nothing else but a doctrine or belief. A religion may not only a lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion and these forms and observances might extent even to matters of food and dress.'
In Sri Venkataramana Devaru's case (AIR 1958 SC 255 1/2), Venkataraman Aiyar, J. observed.:
'.............that the matters of religion in Article 26(b) include even practices which are regarded by the community as part of its-religion.'
Articles 25 and 26 constitute the fundamental rights to freedom of religion guaranteed to the citizens of this country. Article 25(1) protects the citizen's fundamental right to freedom of conscience and his right freely to profess, practise and propagate religion. The protection given to this right is, however, not absolute. It is subject to public order, morality and health as Article 25(1) itself denotes. It is also subject to the laws existing of future which are specified in Article 25(2). Article 26 guarantees freedom of the denominations or sections thereof manage their religious affairs and their properties. Article 26(b) provides that subject to public order, morality and health, every religious denomination or any section thereof shall have the right to manage its own affairs, in matters of religion and Article 26(d) lays down a similar right to administer the property of the denomination in accordance with law. Article 26(c) refers to the right of the denomination to own and acquire movable and immovable property and it is in respect of such property that clause (d) makes the provision. What is therefore guaranteed by Articles 25(1) and 26(b) respectively are the religious practices and the right to manage affairs in matters of religion. If the practice in question is purely secular or affair which is controlled by the statute is essentially and absolutely secular in character, Article 25(1) or Article 26(b) are rot contravened- see Govindlalji's case, A. I. R. 1963 S. C. 1638.
So also in A. I. R. 1954 SC 282. Mukherjea J. said in his felicitous way :
'......... The administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in matters of religion. The latter is a fundamental right which no Legislature can take away, whereas the former can be regulated by laws which the Legislature can validly impose............'
and it was observed in Khajamian Wakf's case (AIR 1971 SC 161):
'..........Article 26 does not interfere with the right of the State to acquire property.'
In Acharya Maharaja Shri Narendra Prasadji v. The State of Gujarat, A. I. R. 1974 S.C. 2098, the Supreme Court observed:
'............The question, therefore, arises whether the right under Article 26(c) is an absolute and unqualified right to the extent that no agrarian reform can touch upon the lands owned by the religious denominations. No rights in an organised society can be absolute. Enjoyment of one's rights must be consistent with the enjoyment of rights also by others. Where in a free play of social forces it is not possible to bring about a voluntary harmony, the State has to step in to set right the imbalance between competing interests and there the Directive principles of state policy although not enforceable in courts, have a definite and positive role introducing an obligation upon the State under Articles 37 in making was to regulate the conduct of men and their affairs. In doing so a distinction will have to be made between those laws which directly infringe the freedom of religion and others, although indirectly, affecting some secular activities or religious institutions or bodies............'
12. In our opinion, the laws relating to agrarian reforms like the provisions introduced by the Amending Acts, do not interfere with the religious affairs of the petitioners. The provisions relate to secular matters and do not abridge rights guaranteed by Articles 25 and 26 of the Constitution.
13. Shri Das has urged that such estates which were declared to be trust estates prior to the commencement of Act 33 of 1970 were saved from vesting in perpetuity. By a deeming provision as contained in the proviso to clause (oo) of section 2, the said estates could not be again treated as trust estates. He has also advanced this argument as regards the deeming provisions contained in section 13.K(b) of the 1963 Act and section 7(2) of the 1970-Act. In this connection he has relied on a number of decisions to indicate the meaning of the expression 'deemed'.
In Consolidated Coffee Ltd. v. Coffee Board, Bangalore A. I.R. 1930 SC 1468, their Lordships of the Supreme Court after refering to the observations of Lord Radcliffe in St. Aubyn v. Attorney General, AIR 1952 S. C. 15 on the word 'deemed' held.
'......the word 'deemed' is used a great deal in modern legislation in different senses and it is not that a deeming provision is every time made for the purpose of creating a fiction. A deeming provision might be made to include what is obvious or what is uncertain or to impose for the purpose of a statute an artificial construction of a word or phrase that would not otherwise prevail, but in each case it would be a question as to with what object the legislature has made such a deeming provision.'
The word 'deemed' is also used to mean :
regarded as being '; it is equivalent to 'shall be taken to be' (vide words & phrases, permanent edition vol. 11 A pages 181 and 185). In our opinion, what the proviso to clause (oo) in section 2 means is that estates declared to be trust estates prior to the coming into force of Act 33 of 1970 shall also be regarded as trust estates for the purpose of the Act so that a fresh determination under sections 8 D and 8 E as to whether or not an estate is trust estate would rot be necessary. In section 13-K (b) of 1963 Act and section 7 (2) of the 1970 Act, the expression 'deemed' has been used also in the same sense-by way of classification. That is to say the exclusion or saving from vesting does not denude the state of its power under law to direct vesting.
14. It has been argued that all maths have deities installed in the premises and properties belong to the deities. So, the provisions in the Act relating to math are not applicable to some of the petitioners.
We have already indicated the fundamental distinction between 'Debutter' and 'Math'. If on the facts of any particular case, an estate does not belong to the Math but to a deity, it is always open to the aggrieved party to urge before the authorities when steps are taken under a vesting notification that the property does not belong to a Math but to the deity. The controversy is a mixed question of fact and law and has to be gone into in details. The writ jurisdiction is not the appropriate forum for an original determination of this nature.
15. It has been contended on the basis of the decisions of the Supreme Court in Minarva Mills Cases (AIR 1980 SC 1789) and Waman Rao's Case (AIR 1981 SC 271) that despite the protection of the 9th Schedule, the previsions of the Orissa Estates Abolition Act which were incorporated into the Orissa Estates Abolition Act on or after 24.4.1973 would be valid to the extent that they do not damage or destroy the basic structure of the Constitution. The provisions incorporated after the Constitution ( 40th Amendment Act 1976) not enjoying the protection of the 9th Schedule, challenge to their vires as offending Articles. 14, 25 and 26 is still open. ' .
We are of the view that the provisions do not offend either Article 14 or Articles 25 and 26.
16. It has also been urged that the Orissa Estates Abolition Act has made provisions for payment of annuity in cases of estates held under trust or other legal obligations and dedicated exclusively to charitable religious purpose of a public nature etc. under section 28 (2).. Though about 8 years have rolled by, no annuity has been paid.
17. This is a matter of serious concern. We are not a nation of unbelievers. We are a deeply religious people. Articles 25 and 26 have guaranteed to the people the right freely to profess and propagate religion and to manage their own religious affairs. No doubt, the State has authority under the Constitution to make laws relating to secular affairs. But where laws or acts of state interfere with the right to freely profess and propagate religion and to manage religious affairs, such laws and the acts can be successfully resisted. We have conceded to the state the power to make law relating to agraian reforms and have held that the provisions of the Orissa Estates Abolition Act as amended in 1970, 1974, 1978 and 1979 do not offend either Article 14 or Articles 25 and 26 of the Constitution of India, but if the State Government so implements the provisions that is to say, if its act or inaction infringes or abridges the rights guaranteed by Articles 25 and 26, such acts or inaction would be available to be challenged though not the law. In Narendra Piasad's case ( AIR 1974 SC 2098), a case relating to acquisition of land belonging to a religious denomination the Supreme Court has observed.
'............If, on the other hand, acquisition of property of a religious denomination by the State can be proved to be such as to destroy or completely negative its right to own and acquire movable and immovable property for even the survival of a religious institution, the question may have to be examined in a different light. That kind of factual position, however, is not taken in these appeals before us............'
We, therefore, hope and trust that the State Government would take immediate steps for payment of annuity according to law in respect of vested estates which were held under trusts dedicated exclusively to charitable or religious purposes of public nature. Religion comes from the word 'Relegere' which means to unite, to bind. It would indeed be a calamity for the State, for our people, if the sobering and unifying influence of religion on people is destroyed by closure of the religious institutions for lack of funds due to non payment of annuity.
18. The last point which has been submitted is that we should give a direction, as regards the vested estates belonging to such trusts, for incorporation of a provision akin to Articles 290A of the Constitution of India. This submission is stated to be rejected. This is a matter of policy and beyond our jurisdiction.
19. We, therefore, see no merit in the submissions made by the learned counsel for the petitioners. The writ petitions are accordingly rejected with the observations regarding payment of annuity. There would be no order as to costs.
J.K. Mohanty, J.
20. I agree.