1. The appellant Shri Jagadguru Kari Basava Rajendraswami of Gavi Mutt isthe Matadhipati of Sri Gavi Mutt which is a religious institution dedicated tothe propagation and promotion of the tenets of the Veera Saiva cult ofHinduism. This Mutt is situated at Uravakonda in the district of Anantapur. Itappears that on the 6th September, 1939, the Board of Hindu ReligiousEndowments constituted under the Madras Act II of 1927 (hereinafter called 'theearlier Act') framed a scheme under s. 63 of the said Act for the properadministration of the said Mutt and its endowments. The predecessor-in-officeof the appellant then filed suit No. 21 of 1939 on the file of the DistrictJudge, Anantapur for getting the said scheme set aside. His suit substantiallyfailed, because the District Court was persuaded to make only a few minormodifications in the scheme subject to which the scheme was confirmed. Thatdecision was taken in appeal by the predecessor of the appellant to the HighCourt of Madras (A.S. No. 269 of 1945). During the pendency of the said appeal,the appellant's predecessor died, and the appellant then brought himself on therecord as the legal representative of his deceased predecessor. Ultimately, theappeal was withdrawn and, therefore, dismissed.
2. Though a scheme had been formulated by the Board under s. 63 of the saidAct, apparently no effective step was taken to take over the actual managementof the Mutt and its endowments. The said management continued as before and thefact that an Executive Officer had been appointed under the scheme made nodifference to the actual administration of the Mutt. It was on the 5th April,1952, that the appellant was served with a memorandum asking him to hand overthe charge of all the properties of the Mutt to the Executive Officer. A noticeissued by the Executive Officer followed on the 16th April, 1952 by which theappellant was informed that the Executive Officer would take over possession.Meanwhile, what is known as the Sirur Mutt case was decided by the Madras HighCourt and the appellant felt justified in refusing to hand over possession tothe Executive Officer on the ground that the scheme under which possession wassought to be taken over from him was invalid inasmuch as it contravened theappellant's fundamental rights guaranteed by the Constitution which had comeinto force from the 26th January, 1950.
3. In 1951, the Madras Hindu Religious and Charitable Endowments Act XIX of1951 (hereinafter called 'the latter Act') repealed and replaced the earlierAct. The appellant moved the Madras High Court on the 28th April, 1952, by hiswrit petition and prayed for an appropriate writ quashing the notice served onhim by the Executive Officer threatening to take over the administration of theMutt and its properties under the scheme. This petition was heard by a singleJudge of the said High Court and was allowed. The learned Judge took the viewthat some provisions of the Scheme contravened the appellant's fundamentalrights under Art. 19(1)(f), and so, it could not be enforced. It was no doubturged before the learned Judge that the appellant's writ petition should not beentertained because he had a definite adequate alternative remedy under thelatter Act, but this plea was rejected by the learned Judge with theobservation that where the fundamental right is clearly infringed, it is theduty of the Court to interfere in favour of the citizen, unless there arereasons of policy which make it inexpedient to do so. Accordingly, the learnedJudge directed that the scheme should be quashed. He, however, took theprecaution to make the observation that his order did not mean that theGovernment was not free to make a scheme in consonance with the Constitutional rightsof the Matadhipati.
4. The respondent, the Commissioner of Hindu Religious and CharitableEndowments, who had been impleaded by the appellant to the writ petition alongwith the Executive Officer, challenged the correctness of the decision renderedby the learned Judge in the writ petition filed by the appellant. This appealsucceeded and the Division Bench which heard the said appeal, held that thescheme having been framed as early as 1939 under the relevant provisions of theearlier Act which was valid when it was enacted, could not be challenged on theground that some of its provisions contravened the fundamental right guaranteedto the citizens of this country under Art. 19. Certain other contentions wereraised before the appellate Bench by the appellant and they were rejected. Itis, however, not necessary to refer to the said contentions, because they havenot been argued before us. Having taken the view that the scheme when it wasframed was valid, the appellate Bench reversed the decision of the singleJudge, allowed the respondent's appeal and directed that the writ petitionfiled by the appellant should be dismissed. It is against this decision of theDivision Bench that the appellant has come to this Court with a certificategranted by the said High Court.
5. Before dealing with the points which have been raised before us by Mr.Sastri on behalf of the appellant, we may briefly indicate the nature of thescheme which has been framed under the relevant provisions of the earlier Act.This scheme opens with the statement that the Board was satisfied that in theinterests of the proper administration of the Mutt and all the endowments,movable and immovable belonging thereto, a scheme should be settled, and so,the Board, after consulting the Matadhipati of the Mutt and other personshaving interest therein, proceeded to frame the scheme. It was intended thatthe scheme should come into force on the 6th September, 1939, when it wasframed. It appears that either because the Executive Officer did not takeeffective steps to implement the scheme, or because the predecessor of theappellant filed a suit challenging the scheme, the scheme in fact has not beenimplemented till today. When the notice was served on the appellant in 1952 andit looked as if the Executive Officer would take over the administration of theMutt and its properties, the present writ proceedings commenced and throughoutthe protracted period occupied by these proceedings, the status quo hascontinued.
6. The scheme consists of 15 clauses and, in substance, it entrusts theadministration of the Mutt and all its endowments in the hereditary trustee andtwo non-hereditary trustees appointed by the Board. These latter are liable tobe removed by the Board for good and sufficient cause and the Board's order inthat behalf has to be final. The Board is authorised to appoint an ExecutiveOfficer for the Mutt on a salary of Rs. 60/- per month. Such Executive Officeris required to furnish security in the sum of Rs. 500/- to the satisfaction ofthe Board. He has to be in charge of the day to day administration of the Muttand he has to be answerable to the trustees. The trustees are required to meetonce a month in the premises of the Mutt for discharging their duties. They aregiven the power to inspect the accounts maintained by the Executive Officer andgenerally supervise his work. The Board is also given the power to issuedirections from time to time regulating the internal management of the Mutt. Itwould thus be seen that through the scheme was framed in 1939, in essentialfeatures it is similar to the pattern of schemes which have been subsequentlyintroduced either by legislation or by judicial decisions in respect of themanagement of public charitable institutions like the present Mutt.
7. Mr. Sastri does not dispute the fact that the relevant provisions of theearlier Act as well as the scheme framed under them were valid at the relevanttime. He, however, argues that the earlier Act has been repealed by the latterAct XIX of 1951, and according to him, it is necessary to consider whether thepresent scheme is consistant with the appropriate and relevant provisions ofthis latter Act. This argument is based on the provisions contained in s.103(d) of the latter Act. This section provides that notwithstanding the repealof the Madras Hindu Religious Endowments Act No. II of 1927, all schemessettled or modified by a Court of law under the said Act or under s. 92 of theCode of Civil Procedure, 1908, shall be deemed to have been settled or modifiedby the Court under this Act and shall have effect accordingly. The argument isthat though the present scheme was framed under the provisions of the earlierAct, it must now be deemed to be a scheme which has been settled or modified bythe Court under this latter Act, and so, it is necessary to enquire whether allthe provisions of the scheme are consistent with the material provisions of thelatter Act. If it is found that any of the said provisions are inconsistentwith the relevant provisions of the latter Act, they must be modified so as tomake them consistent with the said provisions.
8. In support of this argument, Mr. Sastri has invited our attention to theobservations made by Lord Asquith of Bishopstone in East End Dwellings Co. Ltd.v. Finsbury Borough Council  A.C. 109 at p. 132 that 'if you arebidden to treat an imaginery state of affairs as real, you must surely, unlessprohibited from doing so, also imagine as real the consequences and incidentswhich, if the putative state affairs had in fact existed, must inevitably haveflowed from or accompanied it.' Basing himself on these observations, Mr.Sastri has urged that if the deeming provision prescribed by s. 103(d) is givenits full effect, there would be no scope for refusing to apply the test forwhich he contends.
9. We are not impressed by this argument. It is no doubt true that s. 103(d)provides that a scheme settled or modified by a Court under the earlier Actshall be deemed to have been settled or modified under the latter Act; but theeffect of this provision merely is to make the schemes in question operative asthough they were framed under the provisions of the latter Act; the intentionwas not to examine the said schemes once again by reference to the relevantprovisions of this latter Act and re-frame them so as to make them consistentwith these provisions. This position appears to be clear if we examine othersub-clauses of s. 103. Section 103(a) which deals with rules made,notifications or certificates issued, orders passed, decisions made,proceedings or action taken, schemes settled and things done by the Government,the Board or its President or by an Assistant Commissioner under the earlierAct, provides that the said rules, notifications, etc. in so far as they arenot inconsistent with the latter Act, shall be deemed to have been made,issued, passed, taken, settled or done by the appropriate authority under thecorresponding provisions of this latter Act and shall, subject to theprovisions of clause (b) have effect accordingly. Having thus provided for thecontinuance of rules, notifications, orders, etc., in so far as they are notinconsistent with the provisions of the latter Act, s. 103(b) has madeprovision for the modifications in the said rules, notifications and orders. Inother words, the scheme of s. 103(a) & (b) clearly brings out the fact thatwhere the legislature wanted the continuance of the action taken under theprovisions of the earlier Act only if the said action was consistent with therelevant provisions of the latter Act, it has so provided. The same type ofprovision is made by s. 103(f), (g) and (h). If we examine s. 103(d) in thelight of these other provisions, it would be clear that the question of theconsistency or otherwise of the schemes to which s. 103(d) applies, is treatedas irrelevant, because no reference is made to the said aspect of the schemes.In other words, the schemes to which s. 103(d) applies have to be deemed to besettled or modified under the provisions of the latter Act without examiningwhether all the provisions of the said schemes are necessarily justified by, orconsistent with, the provisions of this latter Act; and that is why we do notthink Mr. Sastri is right in contending that the deeming clause prescribed bys. 103(d) necessitates an examination of the said schemes before they areallowed to be continued as though they were settled or modified under thelatter Act.
10. This does not, however, mean that there is no provision prescribed by thelatter Act for the modification of such schemes. Section 62(3)(a) specificallyprovides that any scheme for the administration of a religious institutionsettled or modified by the Court in a suit under sub-section (1) or on anappeal under sub-section (2) or any scheme deemed under s. 103, clause (d), tohave been settled or modified by the Court may, at any time, be modified orcancelled by the Court on an application made to it by the Commissioner, thetrustee or any person having interest. The provision clearly brings out thefact that if a scheme governed by s. 103(d) is deemed to have been made orsanctioned under the provisions of the latter Act and thus continued,modifications in it can be effected by adopting the procedure prescribed by s.62(3). In other words, a scheme like the present is automatically continued byoperation of s. 103(d), but is liable to be modified if appropriate steps aretaken in that behalf under s. 62(3). Reading s. 103(d) and s. 62(3) together,it seems to us that Mr. Sastri's argument that the consistency of the schemewith the relevant provisions of the latter Act should be examined in writproceedings, cannot be entertained. In fact, unless modifications are made inthe scheme under s. 62(3), the scheme as a whole, will be deemed to have beenmade under the latter Act and will be enforced as a valid scheme. That clearlyis the purpose of s. 103(d). Therefore, we do not think we are called upon toconsider the further contentions raised by Mr. Sastri that some of the clausesin the scheme are inconsistent with the provisions of the latter Act.
11. There is one more point to which reference must be made before we partwith this appeal. Mr. Sastri contended that though the scheme may have beenvalid when it was framed, since it was not actually enforced before the 26thJanuary, 1950, it is open to the appellant to challenge the validity of thescheme on the ground that it deprives him of his fundamental right under Art.19(1)(f) and as such, invalid. Mr. Sastri concedes that the fundamental rightsguaranteed by the Constitution are not retrospective in operation; but that, hesays, is no answer to his plea, because the deprivation of his property rightsin taking place for the first time in 1952 and as such, it is open to thechallenge that it is invalid on the ground that it contravenes his fundamentalright under Art. 19(1)(f).
12. In support of this argument, Mr. Sastri has relied on certainobservations made by Mukherjea J. in the case of R. S. Seth Shanti Sarup v.Union of India and Ors. : AIR1955SC624 . In that case, a partnershipfirm known as Lallamal Hardeodas Cotton Spinning Mill Company of which thepetitioner was a partner, used to carry on the business of production andsupply of cotton yarn. When it was found that the Mill could be run at a loss,it was closed on 19th March, 1949. Thereafter, on the 21st July, 1949, theGovernment of U.P. passed an order purporting to exercise its authority unders. 3(f) of the U.P. Industrial Disputes Act, 1947, by which one of the partnersof the firm was appointed as 'authorised controller' of theundertaking. The said order directed the said authorised controller to takeover the possession of the Mill to the exclusion of the other partners, and runit subject to the general supervision of the District Magistrate Aligarh. In1952, the Union of India passed an order under s. 3(4) of the EssentialSupplies (Temporary Powers) Act, 1946, appointing the same person as anauthorised controller under the provisions of that section, and issued adirection to him to run the said undertaking to the exclusion of all the otherpartners. It was then that the petitioner moved this Court by writ petitionunder Art. 32 and challenged the validity of both the orders on the ground thatthey were illegal and that they invaded his fundamental right. His plea wasupheld and both the impugned orders were quashed.
13. In appreciating the effect of this decision, it is necessary to bear inmind one crucial fact on which there was no dispute between the parties in thatcase, and that fact was that both the impugned orders did not come within thepurview of, and were not warranted by, the provisions of the relevant Acts,under which they were purported to have been issued. In other words, it was concededby the Government that the impugned orders were invalid in law. Even so, it wasurged that though the orders may be invalid, they cannot be challenged underArt. 32 inasmuch as the first invasion of the petitioner's right was made in1949 when the Constitutional guarantee was not available to him. In repellingthis contention, Mukherjea, J., observed that the order against which thepetition was primarily directed was the order of the Central Government passedin October, 1952, and that was a complete and clear answer to the contentionraised by the learned Attorney-General. Even so, the learned Judge proceeded toobserve that assuming that the deprivation took place in 1949 and at a timewhen the Constitution had not come into force, the order effecting thedeprivation which continued from day to day must be held to have come intoconflict with the fundamental rights of the petitioner as soon as theConstitution came into force and became void on and from that date under Art.13(1) of the Constitution. It is on these observations that Mr. Sastri'sargument was founded. With respect, we are not prepared to hold that theseobservations were intended to lay down an unqualified proposition of law thateven if a citizen was deprived of his fundamental rights by a valid schemeframed under a valid law at a time when the Constitution was not in force, themere fact that such a scheme would continue to operate even after the 26thJanuary, 1950, would expose it to the risk of having to face a challenge underArt. 19. If the broad and unqualified proposition for which Mr. Sastri contendsis accepted as true, then it would virtually make the material provisions ofthe Constitution in respect of fundamental rights retrospective in operation.In the present case, the scheme was framed and the Executive Officer wasappointed as early as 1939. If the Executive Officer could not take over theactual administration of the Mutt and its properties, it was partly because theappellant has continuously challenged the implementation of the scheme by legalproceedings and partly because he has otherwise obstructed the saidimplementation. But it is clear that when the scheme was framed and a challengemade by the appellant to its validity failed in courts of law, his property rightshad been taken away. The fact that the order was not implemented does not makeany difference to this legal position. If Mr. Sastri's argument were right, allsuch schemes, though implemented and enforced, may still be open to challengeon the ground that they contravened the Matadhipati's fundamental rights underArt. 19. Such a plea does not appear to have ever been raised and, in ouropinion, cannot be validly raised for the simple reason that the fundamentalrights are not retrospective in their operation. The observations on which Mr.Sastri relies must be read in the light of the relevant fact to which we havejust referred. The deprivation of the petitioner's property rights was broughtabout by invalid orders and it was in respect of such invalid orders that theCourt held that the petitioner was entitled to seek the protection of Art. 19and invoke the jurisdiction of this Court under Art. 32. In our opinion,therefore, there is no substance in the contention that since in the presentcase, the scheme has not been completely implemented till 1952, we must examineits validity in the light of the fundamental rights guaranteed to the appellantunder Art. 19 of the Constitution.
14. The result is, the appeal fails and is dismissed with costs.
15. Appeal dismissed.