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His Holiness Sinha Sri Vythilinga Pandara Sannadhi Avergal Vs. Sir T. Sadasiva Aiyar and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and societties
CourtChennai
Decided On
Reported inAIR1928Mad1272; (1928)55MLJ605
AppellantHis Holiness Sinha Sri Vythilinga Pandara Sannadhi Avergal
RespondentSir T. Sadasiva Aiyar and ors.
Cases ReferredMuthiah Chekty v. Periannan Chetty
Excerpt:
- - 12. so far as legislation regarding religious endowments is concerned, it clearly falls within the powers of the madras legislature and it is not disputed that madras act ii of 1927 has been validly passed. the claim against the quebec bank would be obviously good at common law. 36. section 9, clause (12) clearly contemplates a temple in actual existence as a place of public worship......of madras except the presidency town and applies, save as hereinafter provided, to all hindu public religious endowments.27. section 3, clause (a) gives the local government powr,, after consulting the board, to exempt any such endowment from' the operation of all or any of the provisions of the act, or vary,. alter or cancel such exemption.28. section 4 enacts that nothing in this act shall apply to any math or temple1 whose average annual gross income including income from endowments connected therewith for a period of five years immediately preceding the commencement of this act was less than rs. 500 in the case of maths and rs. 250 in the case, of temples. but even in such case's the local government has power to issue a notification declaring that all or any of the provisions.....
Judgment:

Kumaraswami Sastri, J.

1. These are suits filed by the respective plaintiffs against the Board of Commissioners for Hindu Religious Endowments, Madras, for a declaration that Madras Act I of 1925 is not valid and that the defendants have no right to act as a legally constituted Board and not entitlld to exercise all or any of the powers conferred on the Board of Commissioners under the said Act, for an injunction restraining them from exercising all or any of the powers under the Act against the plaintiffs and for other reliefs.

2. In some suits there is an alternative prayer that even if the Act is valid, it does not apply to the institutions referred to in those plaints.

3. The grounds on which Madras Act I of 1925 is said to be invalid are set out in the plaints.

4. After the institution of these suits, Madras Act II of 1927 was passed. This Act by Section 6 repealed the Hindu Religious Endowment Act I of 1925 and by Section 7 validated certain Acts done under that Act.

5. Section 7 runs as follows:

(i) 'All action taken and all things done including the constitution of the Board of Commissioners for Hindu Religious Endowments, the notifications issued and orders made under and in pursuance of the said Act shall be deemed to have been validly taken, done, issued or made.

(ii) All proceedings taken under the said Act may be continued under this Act in so far as they are not inconsistent with the provisions of this Act.

(iii) Any remedy by way of application, suit or appeal which is provided by this Act shall be available in respect of proceedings under the said Act pending at the time of the commencement of this Act as if the proceedings in respect of which the remedy is sought had been instituted under this Act.

6. It is contended for the plaintiffs that Section 7 of Madras Act II of 1927 is ultra vires as Madras Act I of 1925 was invalid as it did not comply with the provisions of the Government of India Act.

7. Another contention which arises in Suit No. 424 of 1926 is that Section 84 of Act II of 1927 does not give the Religious Endowment Board jurisdiction where the public nature of the temple is disputed or where there is no temple within the definition of the word 'temple' in Section 9(12).

8. It is also contended that even if Section 7 is valid, the Religious Endowment Board is not properly constituted as there has been no notification issued by the Government as required by Section 10.

9. By consent of parties these questions were treated as preliminary issues.

10. It is argued by Mr. Rangachari for the plaintiffs that Madras Act I of 1925 is not a valid Act as it was not passed in accordance with the provisions of the Government of India Act of. 1919 and that it was not competent for the local Legislature to validate the act or acts done under that Act by any subsequent enactment as it would virtually be doing indirectly what the law prohibits to be done directly. For the purpose of this argument I shall assume that Madras Act I of 1925 was invalid and it is, therefore, not necessary for me to discuss the various reasons given in the plaints and the question is, where an Act of a Subordinate Legislature is invalid owing to the non-compliance of certain conditions required by an Act of Parliament which constitutes the Subordinate Legislature, whether the passing of a fresh enactment which complies with the requirements of the Imperial Act and which is validly passed and which validates acts done or Boards appointed under the provisions of the Act would be ultra vires of the Legislature and invalid.

11. There can be little doubt that a Subordinate Legislature constituted by an Imperial Act of Parliament is, so far as matters within its competence are concerned, supreme. I need only refer to the following observations of their Lordships of the Privy Council in Empress v. Burah I.L.R. (1878) C. 172 : L.R. 5 IndAp 178:

The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But when acting within these limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation as large, and of the same nature, as those of Parliament itself.

12. So far as legislation regarding religious endowments is concerned, it clearly falls within the powers of the Madras Legislature and it is not disputed that Madras Act II of 1927 has been validly passed. Section 7 is the only section to which objection is taken.

13. The only question is whether the Legislature can validate acts done under a former enactment which owing to its not complying with certain requirements of the Government of India Act is invalid.

14. It is not disputed that if the Religious Endowment Board was constituted without any legislative authority by the Local Government and was for that reason incompetent to exercise its functions, any subsequent legislation can validate the constitution of the Board as from the date of ife constitution by the Government. It is also clear that the subjects dealt with by Act II of 1927 are subjects which the local Legislature is competent to deal with. I do not think the mere fact that there was a prior ineffectual attempt to legislate would take away from the Legislature the power to pass a subsequent enactment relating to the same subject-matter and to validate acts done or bodies constituted under the prior enactment.

15. In Trustees of the Ottawa Roman Catholic Separate Schools v. The Quebec Bank (1920) A.C. 230, the Legislature of Ontario purported to authorise the appointment of Commissioners to take over the management of certain Roman Catholic Schools. Commissioners were appointed and they carried out their duties and for the purposes of the schools drew and expended money standing to the credit of the trustees of the Roman Catholic Schools. Then the Statute 5, Geo. V c. 45 under which they acted was declared by the Privy Council to be invalid. Thereupon the Legislature of Ontario passed 7 Geo. V c. 60 declaring that the expenditure incurred by the Commissioners under the invalid Legislature must be deemed to have been made for at the request of the trustees for the Roman Catholic Schools. The question was raised as to the validity of 7 Geo. V c. 60 and it was held by their Lordships of the Privy Council that the Act was not invalid. Lord Dunedin observed as follows:

The claim against the Quebec Bank would be obviously good at common law. The bank was the debtor of the appellants, and it would be no defence to say that they had paid the money to a Commission whose authority was based on an Act of the Provincial Legislature which had been declared to be ultra vires. The real defence to the action lies in the latter statute quoted above. It is equally clear that this statute by its terms provides a complete defence. The only real question is, therefore, whether that statute also is ultra vires. It can only so be held if it contravenes the exception to Section 93, Sub-section (1) of the British North America Act, or, in other words, if it prejudicially affects a right or privilege of the appellants. For indubitably in other respects it is a measure dealing with civil rights and as such within the domain of the provincial legislature.

16. After pointing out that the Act does not offend against Section 93, Sub-section (1), their Lordships of the Privy Council held that the statute 7, Geo. V c. 60 was not ultra vires.

17. In the present case it cannot be said that Act II of 1927. offends against any of the provisions of the Government of India Act or legislates on matters not within the competence of the local Legislature. It is difficult to see why the observations of their Lordships of the Privy Council would not apply equally to the facts of the present case.

18. Colonial Sugar Refining Co. Limited v. Irving (1906) A.C. 360 is also a case in point. In that case certain duties on sugar were levied under an erroneous impression that the fact that the Minister had moved a resolution for the levy of such duties was a valid ground for the imposition. An Act was subsequently passed which authorised the levy of the duty as from the date on which they were begun to be levied. It was held by their Lordships of the Privy Council that the Act was within the competence of the local Legislature and validated the previous levy. Their Lordships observed:

Between October 8, 1901, and July 26, 1902, the respondent demanded from the appellants in respect of 6,700 tons of sugar produced in Queensland, sums amounting in the aggregate to 20,100 as duty imposed on manufactured sugar, in accordance with the resolution. The appellants disputed their liability and deposited the amount in accordance with statutory provisions for that purpose. It is unnecessary now to discuss whether the payment of the duty could have been enforced before the passing of the Excise Tariff, 1902, and it is not now disputed that the appellants are liable for the duty if the Act imposing the duty as from October 8, 1901 was within the powers of the Parliament.

19. This case is clear authority for the view that acts done without authority and which, therefore, would be invalid can be validated by subsequent legislation if the legislation is within the ambit of the powers of the Legislature.

20. This is not a case where an enactment which is invalid in law as not complying with certain provisions of the Government of India Act has been declared to be valid. On the contrary that enactment is expressly repealed and all that Section 7 does is to validate Acts done under that enactment. As I pointed out before, the legislation was on matters within the competence of the Madras Legislature and if no previous Act had been passed and the Board constituted without legislative sanction was invalid for want of legislative sanction, there was nothing to prevent the Legislature from passing an Act validating the constitution of the Board as from the date when it came into existence. All that Section 7 does is to validate certain Acts done and this I think is within the competence of the Legislature. To hold otherwise would mean that where a previous legislation has been infructuous owing to the non-compliance with certain requirements imposed by the Government of India Act, the Legislature would have no power by a subsequent enactment to validate Acts done bona fide under the previous enactment, or even to legislate on the same matter. No authority has been cited by Mr. Rangachari for this broad proposition. He has referred to Broom's Legal Maxims, p. 375. It is no doubt a general maxim that you cannot do indirectly what the law prohibits to be done directly. But I do not see how by enacting Section 7 of Act II of 1927 there has been any evasion of the law or, any indirect getting over the provisions of the Government of India Act.

21. It is also argued that as the previous Act was invalid, it is only the Imperial Parliament that could validate Acts done under it and reference was made to Keith's Responsible Government in the Dominions, Vol. Ill, p. 1325. I do not see anything in the passage referred to in the Keith's book which states that it is only the Imperial Parliament that can validate Acts done in pursuance of an enactment of a subordinate legislature which is invalid. The fact that the Imperial Parliament passed Acts to validate certain enactments of Colonial Legislatures which were invalid cannot prevent the validation of Acts done in pursuance of invalid Acts passed by the subordinate legislature assuming that the Acts which it validates are Acts which could be legislated upon by it.

22. I am of opinion that Section 7 of the Madras Act II of 1927 was validly enacted by the local Legislature.

23. As regards the argument that there is no valid Board constituted owing to the want of notification under Section 10, I think that Section 24 of the General Clauses Act applies to the present case. If Section 7 is valid, a fresh notification is not necessary as the notification already issued would be valid. The mere fact that Section 10 states that the Local Government may by notification direct the constitution of a Board does not make it obligatory on the Government to do so where there is a prior valid notification. All that Section 10 does is to enable Government to issue a fresh notification after cancelling the old one.

24. The next question is as regards Section 84. Section 84 runs as follows:

(1) If any dispute arises as to whether a math or temple is one to which this Act applies or as to whether a temple is an excepted temple, such dispute shall be decided by the Board.

(2) A trustee affected by a decision under Sub-section (1) may within one year apply to the Court to modify or set aside such decision, but, subject to the result of such application, the order of the Board shall be final.

25. I am of opinion that it is within the competence of the Board to determine whether a-math or temple is a public institution where the trustee or Matathipathi alleges that it is a private endowment or temple not falling within the Act.

26. Section 2 of the Act is general. It says that the Act extends to the whole of the Presidency of Madras except the Presidency Town and applies, save as hereinafter provided, to all Hindu public religious endowments.

27. Section 3, Clause (a) gives the Local Government powr,, after consulting the Board, to exempt any such endowment from' the operation of all or any of the provisions of the Act, or vary,. alter or cancel such exemption.

28. Section 4 enacts that nothing in this Act shall apply to any math or temple1 whose average annual gross income including income from endowments connected therewith for a period of five years immediately preceding the commencement of this Act was less than Rs. 500 in the case of maths and Rs. 250 in the case, of temples. But even in such case's the Local Government has power to issue a notification declaring that all or any of the provisions of the Act shall apply to such math or temple.

29. Section 9, Clause (7) defines math as an institution for the, promotion of the Hindu religion presided over by a person whose duty is to engage himself in spiritual service or who exercises or claims to exercise spiritual headship over a body of disciples and succession to whose office devolves in accordance with the directions of the founder of the institution or is regulated by usage; and includes places of religious worship other than a temple or places of religious institution which are appurtenant to such institution.

30. Temple is defined as meaning a place, by whatever designation known, used as a place of public religious worship and dedicated to, or for the benefit of, or used as of right by, the Hindu community, or any section thereof, as a place of religious worship.

31. Section 2 being general and applying to all Hindu public religious endowments except such as are excluded by the provisions of the Act, it seems to me to be clear that, where a question arises between a Matathipathi or Dharmakartha on one side and the Board on the other as to whether the Religious Endowment Board has jurisdiction, Section 84 gives the Board power to determine that question subject to the right of the trustee under Clause 2 to apply to the Court to modify or set aside the decision of the Board.

32. It is contended by Mr. Rangachari that before the Board can assume jurisdiction the institution or temple must be one which does not fall within the exceptions stated above and that where that question itself is in dispute, the Board would have no authority to act under the Act and must file a suit as otherwise the Board would really be adjudicating on a matter in which it is a party.

33. Section 84 is general and says that if any dispute arises as to whether a math or temple is one to which the Act applies or as to whether a temple is an excepted temple, it is the Board that shall settle the dispute.

34. Section 84 does not make any exception as to the class of disputes that give the Board competence to decide matters in issue.

35. Where, however, there is no temple in existence as a place of public worship when the Act came into force, it is difficult to see how Section 84 can give any power to the Board to call upon the trustees to account for the endowed properties or direct them to rebuild the temple or to apply the income in a particular manner.

36. Section 9, Clause (12) clearly contemplates a temple in actual existence as a place of public worship. There is nothing in the Act or in Section 84 which says that the trustees shall have jurisdiction to decide the way in which the income of the particular endowments attached to temples which before the Act came into force ceased to exist as places of public worship is to be applied. That is a function which ordinarily belongs to Civil Courts.

37. So far as Suit No. 424 of 1926 is concerned, it is not disputed that all that remains are the ruins of a temple which fell into ruins or was demolished several years ago. The report filed (Ex. A) as to which there is no dispute makes this clear. It is no doubt true that certain properties are described as Devaswom properties and probably their income was used by the members of the Tarwad at least in part for the performance of worship in the temple. But I do not think the fact that there are some properties attached, the income of which should be devoted to the temple, would give the Board jurisdiction either to direct the restoration of the temple or to invoke the doctrine of cypres for the purpose of dealing with the income.

38. So far as C.S. No. 424 of 1926 is concerned, there must be a decree in favour of the plaintiff declaring that the Act does not apply to the KottamaLal properties and that the Board has no jurisdiction to interfere in the matter. An injunction will issue restraining the Board from exercising any of the powers conferred on the Board by the Act with reference to the temple or interfere with the plaintiffs' management and enjoyment of the properties. The Board will pay the plaintiffs one-half costs of the suit.

39. As regards the other suits, I decide the preliminary issues against the plaintiffs. It will be declared that Section 7 of Act II of 1927 is not ultra vires but was within the competence of the Legislature and that the Board as at present constituted has power and jurisdiction to act under the Act. As the suits have been posted for hearing to-day on the other issues I shall proceed to dispose of the other issues.

40. Mr. Rangachariar says he does not press the other issues in C.S. No. 574. It is dismissed with costs. In C.S. Nos. 168, 170 and 412 it is argued by plaintiffs' vakil that a right of suit still remains to plaintiffs even though the Board has held the temples to be public temples as that right is not taken away by the new Act, which only validates acts done under the old Act. I have held that the acts of the defendants under the old Act have been validated and that the Board has the power to decide under Section 84 corresponding to Section 80 of the old Act whether a temple is public or private. Having regard to the frame of the present suits I do not see how an injunction can issue having regard to Sections 7 and 84 of this Act. Assuming without deciding that a suit would lie for setting aside the Board's decision that the temple is a public temple, such a suit would only lie in the Court where the temple is situate. As regards C.S. No. 169 it is argued that the Board has not decided the question that the temple was public. It is stated that the Board by its letter dated 20th November 1925 stated that having regard to the decision in Muthiah Chekty v. Periannan Chetty (1916) 4 L.W. 228 the present temple is a public temple as it was similarly situated. If this order is not an order declaring the temple to be public after due enquiry, then the matter must be deemed to be still pending and the Board can enquire into the matter under Section 84 and pass final orders. I do not see how I can grant the prayers in the plaint which are confined to declaring the Act to be invalid and for an injunction restraining the defendants from acting. In C.S. No. 64 of 1927 it is argued that no enquiry was held under Section 84 and the vakil wants an enquiry. The Board on the allegations of the plaintiff that 50 illams were interested in the temple held it was a public temple. I do not think I have any jurisdiction to go into the matter of the temple situated in Malabar being a public or private temple. The plaintiffs ought to have filed a suit in Court having the jurisdiction as regard the temple. As a temple belonging to several families may still be private if it originally belonged to one family which in course of time became divided into several branches. I think the Board will save expenses and litigation if they would rehear the matter and decide on the evidence plaintiff may adduce.

41. As regards No. 624 Mr. Ramachandra Aiyar wants an adjournment. I see no grounds to grant further time. The parties ought to have been ready. The case was on board several times and when I disposed of the preliminary issues on the 1st August I intimated my decision but the parties said they wanted time to consider. I said I would give judgment later on to enable them to be ready to go on with the other issues if they pressed them. I think the plaintiff had ample time. As regards No. 372 of 1926 the plaintiff wants to raise an additional issue as to allegations in para. 10 as to a treaty with the Government. No summons has been taken out for an additional issue. I see no grounds to raise any additional issue at this stage. No application was made even when the case was taken up on the 1st August.

42. Suits Nos. 390, 409, 384, 248, 383, 372, 168, 412, 169, 170 and 338 of 1926, 64 of 1927, 574 and 624 of 1925 will be dismissed with costs.

43. In No. 125 of 1926 the plaintiff is reported dead two months ago. This will be adjourned for 6 weeks. PLalntiff's vakil withdraws No. 295 of 1926. It is dismissed with costs. C.S. No. 208 of 1927 and O.P. No. 65 of 1927 on the file of the District Court of Tanjore which is C.S. No. 89 of 1928 will be adjourned one month as application for commission is pending.


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