Ramachandra Iyer, C. J.
1. Two questions fall to be decided in this appeal, onewith respect to the applicability of Section 9 of the Madras City Tenants Protection Act, 1921, to a property owned by a Hindu religious institution over which the trustee or the Manager has only a qualified power of disposal, and the second as to the true construction of Section 47 of the Presidency Small Cause Courts Act of 1882.
2. The appellant, Sri Siddhi Budhi Vinayakar Sree Sundareswarar Devastanam is a Hindu temple which owned a considerable tract of land in St. George's Cathedral Road, Royapettah. Out of that extent, its trustee leased out a small plot measuring 25 ft. by 35 ft. (the date of the lease not being in evidence) to the respondent on a rent of Re. 1 per mensem. There is nothing to show that the respondent was prohibited from putting up any building on the land. On the other hand, it appears fairly clear that he was permitted to put up a building thereon which hedid, the precise, point of time at which he did so, not again being in evidence. His case was that both the lease as well as the putting up of the superstructure on the land were prior to the year 1921 and that he was entitled to the benefits of the Madras City Tenants Protection Act of 1922.
3. But this question has become academic as by reason of the amendment introduced into the Madras City Tenants' Protection Act by Madras Act 19 of 1955 which came into force on 10th September 1955, a tenant on the land otherwise entitled to the benefits of the Act would be entitled to protection, if he had put up the superstructure prior to the coming into force of the amendment.
4. On 8th November 1948 the appellant's trustee who had by then terminated the lease in favour of the respondent filed an application under Section 41 of the Presidency Small Cause Courts Act, for eviction of the tenant. An order was passed directing him to deliver vacant possession by 1st August 1950. On that date the respondent applied to the Court under Section 47 of the same enactment in M. P.No. 6183 of 1950 for stay of further proceedings, undertaking to institute a suit to establish his right to continue in possession of the property. The provisions of that section being mandatory and the conditions therein being satisfied, the Court passed an order staying proceedings on the application for eviction until the suit to be filed by the respondent was disposed of Section 47 of the Presidency Small Cause Courts Act prior to its amendment by Madras Act 16 of 1956, did not impose any time limit for the suit to be filed. Presumably such a suit questioning the order passed by the Court of Small Causes under Section 13 (sic. Section 43 ?) will have to be filed within the period specified in the Limitation Act. Nor was there any sanction against a tenant who taking advantage of the order, failed to institute the suit contemplated by that section. There can be little doubt that in case a tenant fails to institute the suit within a reasonable time it would be competent for the Court to vacate the order for stay, under its inherent powers.
5. The respondent having secured the order for staying eviction by undertaking to file a suit, became indifferent, thereafter. The appellant, too, appears to have done nothing at all for neariy two years after the order was passed. They however filed on 17th September 1952, an application in the Court of Small Causes, Madras for delivery of vacant possession of the property in pursuance of its original order. That application was allowed, and the Court fixed a certain date for delivery of possession. But even on that date, no delivery could be effected as the respondent came forward with a fresh application for stay on which time was granted till 11th September 1952 to the respondent either to give vacant possession or to file a suit and obtain an order for an injunction preventing the trustee from executing the order for eviction. It may be noticed in passing that by the Amendment Act 16 of 1956, the original Section 47 of the Presidency Small Cause Courts Act was replaced by the present one under which, if the suit were not to be instituted within a month of the date of the acceptance of the security by the Small Cause Court--the Court shall proceed with the application for eviction from the stage at which security was accepted.
6. The respondent on 10th November 1952 filed the suit out of which the present appeal arises for relief specified in Section 47 of the Presidency Small Cause Courts Act He claimed in that suit that the lease as well as the construction of the superstructure on the property, were prior to the year 1921, and that he being entitled to the benefits of the Madras City Tenants Protection Act, the order for eviction passed by the Court of Small Causes contrary thereto was invalid. He also applied for an interim injunction during the pendency of the suit against the appellant from enforcing the order for eviction. That application, however, proved fruitless. The appellant thereupon applied to the Court of Small Causes and obtained an order for delivery of the land after removing the superstructure. That delivery was effected on 6th February 1953. This was during the pendency of the suit instituted by the respondent. Attempts on his part to obtain re-delivery did not meet with any success.
7. In the suit, the learned Trial Judge held that the tenant had failed to prove that the lease of the land was prior to the year 1921, and that he was, therefore, not entitled to any protection under the Act. But curiously enough he also held that the tenant would be entitled to compensation for the superstructure on eviction and that till that compensation was paid he was entitled to retail possession of the property.
8. We may in passing point out the unsoundness of the latter view. Once the Madras City Tenants Protection Act is held not to apply, we cannot see how the landlord can be compelled to pay compensation. Both under the common law as well as under the Transfer of Property Act, the right of a tenant who had put up a superstructure on a lease-hold land which was taken on a terminable lease, will be only to remove the superstructure at the time of delivery of possession on the termination of the lease. There would be no right to compel the landlord unless the latter agrees to do so to pay compensation for unwanted superstructure. Secondly the landlord who had obtained possession of the land as in the present case cannot be compelled to surrender back the land because the tenant had failed to remove the superstructure at the time he vacated the property. If it is proved that the landlord had appropriated the materials which formed part of the superstructure, the tenant can only have the value thereof assessed and recover the same.
9. The respondent was, however, dissatisfied with the decree passed by the Trial Court. He filed an appeal in the same Court against the decree. The appeal ultimately came up before the Additional Judge of that Court. By the time the appeal was taken up for hearing, the amendment by the Madras Act 19 of 1955 to the Madras City Tenants Protection Act had come into force. That made the benefits of the Act available to tenants coming within it and whose tenancies were created prior to 10th September 1955. The respondent promptly took advantage of the statute and applied to the Appellate Court under Section 9 for compelling the appellant to sell the land. He also took the plea that the order for eviction passed by the Court of Small Causes not being in conformity with the provisions of the Madras City Tenants Protection Act, was invalid. The learned Additional Judge allowed the appeal holding that the respondent would be entitled to purchase the land at a valuation to be fixed in accordance with the provisions of the statute; he accordingly set aside the decree passed by the Trial Judge and remitted the case for ascertainment of the price. Against this order of remand the landlord filed an appeal to this Court. Veeraswami J. affirmed the order of the lower Appellate Court, but granted a certificate under Clause 15, Letters Patent for a further appeal. Hence this appeal.
10. Learned counsel for the appellant contends that as the respondent was not 'de facto' in possession of the land on the date when the amending Act came into force, he would not be entitled to call in aid the benefits conferred by the enactment. Veeraswami J. accepted this contention but at the same time sustained the relief granted to the tenant by the lower Appellate Court, on the ground that the possession taken by the appellant during the pendency of the suit should be regarded as 'non est' in law. It will be noticed that possession was taken in pursuance of an order of Court which had the jurisdiction to pass the order. The Court of Small Causes issued the order for stay, as it was entitled to do, as and from 11th September, 1952. Thereafter, the execution of the order of eviction could be prevented only if the City Civil Court had granted an injunction against enforcing the order. The respondent though he applied for it was unable to obtain it. There was therefore nothing illegal in regard to the execution of the order for eviction. The learned Judge considered that Section 47 of the Presidency Small Cause Courts Act gave no option to the Court but to grant a stay of execution and as the section itself does not vest a jurisdiction in the Court to limit its duration, the delivery effected would be 'non est' in law, notwithstanding the fact thatthe Court itself revoked the order of stay later. We are with respect unable to share that view. As we pointed out earlier, the Court which granted a stay of execution under Section 47 will have an inherent power to revoke it whenever it finds that the application for it was intended as an abuse of process of Court. There will however be no need to apply that rule after the amendment effected to that section in the year 1956, as it obliges the tenant to file the suit within a month. There is however anothar aspect to be considered.
11. The delivery of possession made to the landlordduring the pendency of the present litigation can only be subject to the result of it. In the suit which is one filed under Section 47 of the Presidency Small Cause Courts Act, the respondent prayed for a declaration that he was. entitled to protection under the Madras City Tenants Protection Act and prayed for an injunction against the landlord from proceeding with the enforcement of the order. The suit can be regarded only as a continuation of the proceedings initiated under Section 41 of the Presidency Small Cause Courts Act. Therefore, if in the suit it were to be held that the tenant could not be evicted, the order under Section 43 will stand vacated and any possession obtained thereunder will have to be restored to the tenant on the principle of restitution. For the application of this principle it would make no difference whether the tenant obtains the decree in a suit filed under Section 47 upholding his right to possession on the basis of facts or law existing on the date of suit or by reason of any right conferred on him pending an appeal. We have therefore to consider whether it could be said that the appellant was guilty of trespass when he obtained the order of eviction from the Small Cause Court; if so the decree to be passed in the present suit will supersede the order for eviction.
12. The respondent's case, is that as by reason of the amending Act 19 of 1955, he became entitled to certain rights under the City Tenants' Protection Act, he would be entitled to be given those rights. That enactment gives three rights to a tenant of land who has put up a superstructure (1) compensation at the time of eviction, (2) an option to purchase the land, and (3) three months notice prior to a suit or proceeding in execution. The respondent did not rest his case on the ground of notice; he only claims that he will be entitled to purchase the land or alternatively to compensation.
13. The appellant contends his right on three grounds (1) That the provisions of Section 9 will not apply to Hindu religious endowments, (2) Even if it were held to apply, it should be regarded as void by the operation of Article 13 of the Constitution as it contravenes both or either Article 19 and Article 14(3) On the terms of Section 9, the respondent would not be entitled to purchase the property, the suit being not one for possession.
14. We shall consider first whether the respondent who is a lessee of temple property can compel his landlord under Section 9 of the Madras City Tenants' Protection Act to sell the land or whether his only right will be to obtain compensation for the superstructure. Neither this aspect of the matter, nor the one relating to the constitutional validity of that provision to which we shall refer later was argued before the lower Courts or the learned Judge. We have however permitted the appellant to raise these questions now.
15. Under the ordinary Hindu law, a trustee of a Hindu temple will not be competent to sell the property belonging to it except for compelling necessity or manifest benefit to the institution. In case of necessity it will evenbe incumbent on him to decide how best consistently with the interests of the institution the necessity can be met, that is, whether by lease, mortgage or sale. The true position of a trustee has been described in the judgment of Subramanta Iyer, O. C. J. in Vidyapurnattiirtha Swami v. Vidya Nidhi Thirtha Swami, ILR 27 Mad 435, thus :
'In the case of temples, the ideal person being the idol itself, the natural custodian of the property will have no beneficial interest whatsoever in the endowments but occupies the fiduciary position of a mere manager, Juggedumba Dossee v. Puddo Money Dassee, 15 Beng LR 318, may not improperly be looked upon as subject strictly to the liabilities of a trustee.'
That a Dharmakartna of a temple in South India is nothing more than a Manager has been laid down by the Privy Council in Srinivasachariar v. Evalappa Mudaliar, ILR 45 Mad 565 : AIR 1922 PC 325, where it was observed :
'But a Dharmakartha is literally and no more than the Manager of a charity and his rights apart, it may be in certain circumstances, from the question of personal support, are never in a higher legal category than that of a mere trustee.'
16. The Trusteeship of a Hindu temple is an honorary office, with a mere right of management of the institution and its properties with no beneficial interest in the endawment. But circumstances may arise which will confer on the trustee a power to alienate the endowed properties, that is, where there is need or benefit. But even under those circumstances a distinction has to be made between two types of properties which a temple may possess-
(1) the site of the temple, its building and appurtenances
(2) other properties owned by the temple. There will be no power under any circumstances in the trustees to sell or otherwise alienate the first category of the property. The second class of properties can however be alienated in the circumstances specified above.
17. It will be convenient at this stage itself to refer to the position under the Mahomedan law in regard to the properties dedicated to wakf, as that would become relevant when we proceed to consider the constitutional validity of Section 9.
18. A mutavalli has no power to sell or mortgage wakf properties unless the deed of dedication expressly empowers him to do so. He is no more than a manager, the property being vested in Almighty. A Court however can permit him to alienate.
19. In Wilson's Anglo-Mohamedan Law, the subject is dealt with in Article 334 thus :
'The Mutavalli may not without the sanction of the Court sell any part of the trust property merely for the sake of improving the rest by means of the proceeds of the sale but he may do so where the removal of the thing sold is in itself beneficial to the remainder, or where the things removed is merely the annual growth which will be replaced by nature.'
20. Article 337 states that selling or mortgaging the dedicated land even for purposes like repairs to property, for payment of taxes etc., there being no income available for the purpose, can be done only with the sanction of the Court unless the deeds of endowment expressly authorises the same.
21. Thus the Mutavalli under the Mohamedan law though he has no power of his own to sell the endowed property even for necessity, will have such power if the Court authorises him to sell. In other words, while in the case of a Hindu religious trust, the trustee will have him-self a power to soil it in certain circumstances a mutavalli of wakf property can do so if he is so authorised by Court. But even so it would not be competent to him to sell the subject-matter of the wakf like mosque, burial ground, etc., as distinguished from the property dedicated therefor.
22. It is now necessary to set out Section 9. That provision has undergone several changes and amendments. In its present form as amended by Act 13 of 1960 it runs :
(a) Any tenant who is entitled to compensation under Section 3 and against whom a suit in ejectment has been instituted or proceeding under Section 41 of the Presidency Small Cause Courts Act, 1882 is taken by the landlord may within one month from the date of the Madras City Tenants' Protection (Amendment) Act, 1955 ..... or within
one month after the service on him of summons, apply to the Court for an order that the landlord shall be directed to sell for a price to be fixed by the Court, the whole or part of the extent of land specified in the application: (b) On such application the Court shall first decide the minimum extent of the land which may be necessary for the convenient enjoyment of the tenant. The Court shall then fix the price for the minimum extent of the land, decided as aforesaid or the extent of the land specified in the application under Clause (a) whichever Is less. The price aforesaid shall be the average market value of the three years immediately preceding the date of the order. The Court shall order that within a period to be determined by the Court not being less than three months and not more than three years from the date of the order the tenant shall pay into Court or otherwise as directed the price so fixed in one or more instalments with or without interest. (Sub-sections 2 and 3 are omitted).
Explanation : 'Land means the interest of the land-lord in the land and all other interests which he can convey under any power and includes also the future interest which a trustee can convey under the power possessed by him to convey trust property when necessity exists for the same or the alienation of the property is for the benefit of the estate or trust.'
In Sivanada Gramani v. Md. Ismail 1959 1 ML J 263, one of us had to consider the applicability of the section to a case where a tenant had put up a superstructure over a part of a Muslim burial ground. The property was 'res extra commercium' under the common law. Neither compelling necessity nor manifest benefit would justify any alienation of the property. It was held that the tenant would not be entitled to compel a sale of the land under Section 9. This principle which we accept will apply to the site of a temple, mosque, church etc., and properties appurtenant thereto. It was, however, held in that case, that the tenant would be entitled to receive compensation for the superstructure; obviously even that he would not be entitled to, where the lease itself was such that it would be invalid as amounting to an alienation of intransferable property.' The right to compensation can arise only in those cases where there could be a valid lease. It would follow that where the lease consists of part of a temple, mosque or church etc, the lease itself will be wrongful and that tenant would have no right to compensation even for the superstructure on eviction.
23. But the property in the present case is different. It is one which can be disposed of by a trustee of a Hindu temple in the context of justifying circumstances, or if it were to belong to a Muslim wakt, by the Mutavalli after obtaining sanction of a Court. In regard to such properties, the first question to be considered, will bewhether the original lease of the property is valid. If the lease is not a valid one, so as to bind the institution the person to whom the property has been let can hardly be said to be a tenant within the meaning of the Act. If, however, it is held that the lease of the trust property was one made in the ordinary cpurse of management or for the benefit or necessity of the institution or with the sanction of Court the tenant will be a lawful tenant. It will, therefore, have to be seen whether there is a prohibition on the terms of the lease against buildings; if there is such a prohibition it will have to be enforced. But where the lease permits a building on the demised property or does not prohibit it, the benefit conferred by the enactment, namely, of obtaining compensation at the time of giving up possession can be availed of. The tenant will also be entitled to exercise an option to purchase the land, if his case comes within Section 9. His right to do so depends mainly on the conditions therein being satisfied in the light of the explanation. The first limb of the explanation, viz., land means the interest of the landlord in the land and also other interest which he can convey under any power would as we shall show presently with reference to a decision in Doraivelu v. Natesa, ILR 47 Mad 761 : AIR 1925 Mad 7, include the case of a trustee of a Hindu temple. But it is difficult to say whether it would apply to Mutavalli of wakfs as he will have no interest of his own in the property of the institution. Nor could he be said to have a power generally to sell the property; such power will exist only under circumstances to which we have adverted to earlier.
24. The question then arises as to the precise scope of the second part of the explanation, whether it is sufficient to comprehend the case of Hindu as well as Muslim institutions. In other words, does that part of the Explanation refer to the category of property which a trustee will have power to sell if an occasion like necessity arises; or does it mean that the Court will have the power to sfirect a sale only where there is necessity or benefit? The words 'when necessity exists' might, if read independently, can refer only to the occasion justifying the same; but in the context in which it occurs that meaning is not appropriate. The Explanation is intended to define the word 'land' i.e., that which could be directed to be conveyed. It is not concerned with circumstances under which the trustee can or the Court will direct It to be sold. Recently the question as to the scope and effect of the Explanation came up before Jagadisan, J. in Vasudeva Pillai v. Neelavathi : (1962)1MLJ116 . The learned Judge after examining all the previous cases on the subject held that a tenant holding under a trustee of leasehold property and claiming the benefit of the Madras City Tenants' Protection Act could obtain the benefit of purchasing the land only when such purchase was a matter of necessity for the trust or would result in a benefit to it.
25. The learned Judge was alive to the fact that the decision of this Court in ILR 47 Mad 761 : AIR 1925 Mad 7, on the terms of the Explanation as it then stood did not place any impediment in the way of the tenant holding under trustees, to obtain the benefit of the Act. But he held that the language of the re-enacted Explanation justifies the view that there could be a sale under Section 9 of trust property only if there was necessity. It should, however, be remembered that the Madras Act VI of 1922 did not repeal the Explanation, it merely added to it what we have referred to as the second limb. As we shall show presently the re-enacted Explanation attempted only to put the right of the tenant on a clearer basis. In other words, it accepted the law as laid down by theCourts and made it clear. Further, it appears to us that Section 9 itself is inconsistent with the existence of justifying circumstances. No sale under the provisions of Section 9 of the Act can be considered to be a benefit to the trust. The trustee is not given an opportunity to exercise his discretion; on the other hand, he is to submit to the option of the tenant and that too at a price which is not the market price. Prior to the amendment of the Act in the year 1960, the price for which the property was to be sold, was the minimum one during the seven years preceding the application for purchase. Even after the amendment, it is not exactly the market price that has to be paid to the landlord, but only the average price during the preceding three years. Again the terms of the section do not require that the trustee of the institution should be compelled to sell the land only if there is necessity for the same.
26. We shall now refer to the antecedent history of the 'Explanation' before it assumed its present form. As originally enacted in the year 1922, it reads :
'land means the interest of the landlord in the land and all other interests which he can convey under any power.'
In Parthasarathi fyengar v. Doraiswami Naicker, ILR 46 Mad 823 : AIR 1923 Mad 308, Spencer and Venkatasubba Rao, JJ. held that a tenant on occupation of land belonging to a temple or mosque could not enforce a compulsory sale of the land under Section 9 of the Madras City Tenants' Protection Act. The main reason given in support of that conclusion was the absence in the enactment of any provision in the statute for investment of the price. From that it was concluded that the legislature could not be held to have intended to endanger the preservation of trust properties by sale by including them within the ambit of the definition of 'land' which could be conveyed under the trustee's power. This decision was, however, overruled by a Full Bench decision in ILR 47 Mad 761 : AIR 1925 Mad 7. Coutts Trotter, C. J. delivering the leading judgment of the Full Bench observed :
'But it seems to me that it is wrong to seek to control a statute which is obviously intended to overrule the ordinary law by general considerations imported by the Hindu law or what is called the common law of India. A trustee landlord can convey the interest of the trust in certain given circumstances. Two of those circumstances have been already referred to--necessity and benefit for the trust--and I think there is added a further one by the new Act III of 1922, namely, when a tenant has been in possession of the land and has put up a superstructure on the land and to eject whom would be in certain circumstances plainly inequitable without a compensation and in other circumstances such as the one contemplated by the section would be inequitable without giving him an opportunity of acquiring the land for himself on payment.'
The observation extracted above has settled the question that Section 9 in its application to religious or charitable endowments, would apply to all these properties which the trustee thereof can sell in a particular event; It is not further necessary that the circumstances justifying a sale by the trustee need actually exist. After the decision of the Full Bench the Explanation to Section 9 was recast assuming its present form by Madras Act VI of 1926. In the statement of objects and reasons for the amendment it is said,
'The imperfect explanation of the word ''land' under Section 9 has led to considerable litigation. In R. C. No. 6 of 1922 Spencer J. and Venkatasubba Rao, J. opined thatSection 9 was not applicable to trust lands. This decision hasbeen overruled by the Full Bench in C. C. C. A. No. 40 of1922. The explanation now substituted follows this decision of the Full Bench so as to make the point absolutelyfree from doubt.'
27. But there is no need in this case to resort toany extraneous aid for the construction of the Explanationto the section. The Full Bench decision construed it inits original form as referring to the class of propertiesthat would come within Section 9. The terms of the re-enacted explanation also indicated that the provision was intended as definitive or descriptive of the interest which thelandlord would be required to sell rather than to define orprescribe the conditions necessary for the sale of the land,like necessity, benefit, etc. Therefore no change in thelaw appears to have been intended by the explanation tothe section as recast by Act 6 of 1926. As we havepointed out, a sale under Section 9 can never be regarded asone for the benefit of the institution; even if there isnecessity, a provision which compels a sale at a pricewhich might turn out to be less than the market pricecannot be regarded as justified. Therefore the option topurchase conferred on the tenant must be irrespective ofany benefit to the institution. The legislature evidentlythought that there was a superior equity in favour of thetenant and he should be enabled to purchase the propertywhere he comes within Section 9 of the Act. To construe thesection as authorising a sale only in cases of necessitywould be practically to make it a dead letter so far asvacant lands belonging to religious institutions are concerned. We are therefore with great respect unable to sharethe view expressed by Jagadisan J. in : (1962)1MLJ116 ,that Section 9 could be invoked by the tenant only if thereis to be either necessity or benefit to the institution bythe sale. In our opinion none of those circumstances needexist; it would be enough if the tenant of the land hadput up a superstructure prior to the date of the Act inthe cases where the land Is not part of the temple ormosque etc. But where it Is shown that the original leasewas beyond the trustee's powers, Section 9 cannot obviouslyapply.
28. The explanation to Section 9 was then attacked as contravening the provisions of Articles 19 and 14 of the Constitution. In view of the importance of the question we gave notice to the learned Advocate General and we are indebted to him for his assistance. The first ground of attack on Section 9 was that as it compelled the landlord to sell the land at a price less than the market price, it would amount to an unreasonable restriction on the individual's right to enjoy his property. The provision in Madras Act 3 of 1922 as originally enacted, directed the Court to fix the price according to the market value of the land. That provision was amended by Act 6 of 1926, which directed that the price should be the lowest market value prevalent within seven years preceding the date of the order. Prima facie such a provision appears to be unreasonable. If that provision is regarded as violative of Article 19(1)(f), the original provision which obliged the tenant to pay the market price and which was repealed by Act 6 of 1926 will stand restored.
It is a recognised rule of construction that where a later statute which imposes a burden or condition is found to be ultra vires, the original enactment will in the absence of indication of a contrary intention as it stood before such additions or alterations, would be revived. But it is unnecessary to pursue that matter as Section 9 has been reenacted by Madras Act 13 of 1960 under which the price is to be fixed on the average market value of the property during the three years immediately preceding the date of the order. We consider that this provision is a reasonable one. Even if the compelled sale is regarded as a restriction on the owner's right, it should be considered as a reasonable one intended to achieve the object which the legislature had in view, namely, of doing justice to the tenant who had put up a superstructure on the land leased out to him in the hope that he would not be evicted. It is not impossible to conceive of cases where the three years' average might even be in favour of the landlord himself. It is not always that the price of the land rises from year to year. Such a formula is found in other enactments, like the Electricity Undertaking Acquisition Act, etc. In Vajrapuri v. New Theatres, Carnatic Talkies, Ltd., a Joint Stock Co., : AIR1960Mad108 , a Bench of this Court held that Section 9 of the Act was not opposed to Article 19(1)(f) of the Constitution, but the attack upon the validity of the provision in that case was not based upon the compensation allowed. As we consider that the provision for fixation of price at three years average is reasonable, Section 9 cannot be held to contravene Article 19 of the Constitution.
29. The more difficult question is, whether the provisions of the section if they are held to apply only to religious institutions of a particular denomination can be regarded as discriminatory, and, therefore, void, as contraveningthe provisions of Article 14 of the Constitution. The pointis raised this way the Explanation to Section 9 which speaksof a trustee selling the property of the beneficiary wherecircumstances exist empowering him to do so, cannot applyto Muslim wakfs where the Mutavalli is neither a trusteenor one who has power to sell under any circumstances.Therefore Section 9 cannot relate to property owned fay aMuslim wakf. But as the section will apply to lands ownedby a Hindu religious institution, there results a discriminatory treatment between lands belonging to a Muslim charitable or religious Institution and those belonging to asimilar Hindu institution. Section 9 not having, therefore,an equal application to things similarly situate, cannot beregarded as valid.
30. The guarantee of equal protection of laws under Article 14 means that there should be equal laws for all similarly placed. This has been so expressed by Mathews J. in Yick Wo v. Hopkins, (1885) 30 Law Ed 220, in construing the Fourteenth amendment to the American Constitution in the following words,
'These provisions (Fourteenth Amendment of the American Constitution) are universal in their application to all persons within the territorial jurisdiction without regard to any difference of race, colour or of nationality and the equal protection of laws is a pledge of the protection of equal laws.'
31. In Gulf C and C. F. R. Co. v. Ellis, (1896) 41 Law Ed 666, a statute imposed a special attorney's fee in addition to costs upon railway corporations omitting to pay certain claims within a certain time after presentation but that provision did not apply to other corporations or individuals. It was held that such a statute was unconstitutional, Brewer J. observing :
'The Act singles out a certain class of debtors and punishes them when for like delinquencies it punishes no others. They are not treated as other debtors or equally with other debtors. They cannot appeal to the Courts as other litigants under like conditions and with like protection. If litigation terminates adversely to them, they are mulcted in the attorney's fees for the successful plaintiff.If it terminates in their favour they recover no attorney's fees. It is no sufficient answer to say that they are punished only when adjudged to be in the wrong. They do not enter the Courts upon equal terms'.
32. We cannot, however, accept the contention that the word 'trustee' in the Explanation to Section 9 will not be applicable to a mutavalli. A mutavalli though not a trustee in the sense of the property being vested in him, is accountable as such. The position of a Dharmakartha of a Hindu temple is also the same. The statute unfortunately has used the word trustee in a loose sense and in our opinion it will cover the Manager of a Hindu as well as a muslim religious institution.
33. The other part of the argument that a mutavalli having no power to sell, the provision will not affect lands owned by a Muslim institution, requires further consideration.
34. But before we do so, we shall dispose of one argument. The learned Advocate General has contended that the legislation will be valid even if there is discrimination where such a discrimination is an unintended one. In other words, the argument is that even If there be any such difference under the Act, the inequality of treatment is not the result of the act of the legislature, but of the pre-exising common law which governs the respective institutions. Reference is made in support of the argument to the decision of the Privy Council in Colonial Sugar Refining Co. Ltd. v. Irwing, 1906 AC 360. Under Section 51 of the Constitution Act of Australia, Parliament had power to make laws 'inter alia' relating to taxation, so as not to discriminate between statutes. The Commonwealth Parliament passed a legislation imposing uniform duties on certain articles. Section 5 of the enactment exempted certain goods on which customs and excise duties had been paid under any pre-existing State legislation. The scale of duties differed in the various States and there was even one State in which no duty was levied on a particular article. It was contended that the grant of such exemption was a discrimination between the States, as it would result in the grant of unequal benefits. Rejecting this argument, Lord Davey observed :
'Their Lordships cannot accede to this argument. The substance of the enactment in question is that goods which have already paid customs or excise duties shall not pay over again and some such payment is obviously necessary in the transition from the old order to the new. The rule laid down by the Act is a general one applicable to all the States alike and the fact that it operates unequally in the several statutes arises not from anything done by the Parliament, but from the inequality of the duties imposed by the States themselves.'
35. In Purushottam Govindji v. B. M. Desai, : 1956CriLJ129 , Section 46(2) of the Indian Income-tax Act was challenged as violative of Article 14 of the Constitution on the ground that the defaulters were treated differently in different States according to the laws prevailing in each of them, for the enforcement of the dues. Rejecting the contention, the Supreme Court held that the difference in the treatment of defaulters in the various States as a State-wise classification was intelligible and reasonable. But the principle was extended by Rajagopala Aiyangar J. who delivering the judgment in Adhi v. State of Madras, : AIR1957Mad603 , observed :
'The essence of freedom guaranteed by Article 14 and the evil which it seeks to guard against is the avoidance of designed and intentional, hostile treatment of discrimina-tion on the part of the law making authorities or those entrusted with administering them ..... impetfectionsof language and inapt draftsmanship by reason of which those whom the legislature or the rule making authority desires to rope in, find themselves free, could not constitute any basis on which a complaint of discrimination could be rested ..... Further mere production of inequality isnot sufficient. The inequality produced in order to encounter the challenge of constitution must be actually and palpably unreasonable and arbitrary.'
36. If the learned Judge intended to lay down that there should be a design in a disclosed intention on the part of a legislature apart from what the terms of the statute effectuate, we must respectfully point out that the rule might require reconsideration. But the first of the cases cited above are those where the impugned legislative enactment did not itself discriminate between persons or things, such discrimination as resulted was fortuitous. In the second of them, the discrimination was held to be valid, because there was a proper classification. In the case before us it cannot be said that the legislature did not intend to discriminate; the legislature must be presumed to know the pre-existing taw and if knowing it, it made only the lands belonging to one section of charitable and religious trusts liable for compulsory sale, there would be discrimination. It is not contended that if there is such a discrimination, it can be justified on the footing of any classification. We cannot ourselves see any indication in the Act that a classification is at all intended. Where the terms of the enactment are such that an inequality results in its operation, and the difference in treatment has no fair or just relation to the question of granting benefits to tenants of land, the enactment must be held to have arbitrarily chosen the Hindu endowments, for the operation of Section 9. In Royster Guano Co. v. Virginia, (1919) 64 Law Ed 989, there was an unequal treatment in a legislation between domestic corporations doing business outside the State and domestic corporations doing business within and outside the State, in the matter of levy of income-tax. Declaring the law void as discriminatory it . was observed,
'It follows that it is arbitrary, in effect, and nonetheless because it is probable that the unequal operation of the taxing system was due to inadvertence rather than design,'
Recently in Jyoti Prasad v. Union Territory of Delhi, : 2SCR125 , the Supreme Court summarising the result of the previous decisions under Article 14 of the Constitution formulated a number of propositions, the first of which runs as follows :
'If the statute itself or the rules made under it applies unequally to persons or things similarly situated, it would be an instance of a direct violation of the constitutional guarantee and the provision of the statute or the rules in question would have to be struck down.'
37. It is difficult therefore to accept the contention of the learned Advocate General that in order to invalidate a statute which is discriminatory it should be shown that the legislature was conscious of and intended to discriminate. The general presumption is that the legislature acts in good faith and with knowledge of the existing conditions : but that presumption cannot always be carried to the extent of holding that even if there is any discrimination, the person attacking the legislation should prove further that the legislature intended such discrimination.
38. The decision in 1906 AC 360 was, as we stated earlier, rendered in a case where there was no discrimination on the part of the Legislature.
39. It must be remembered that the 'explanation' to Section 9 was introduced prior to the Constitution when the legislature had plenary powers untrammelled by the existence of fundamental rights like what we are having now. ff the contention of the learned Advocate General were to be accepted, no legislation prior to the Constitution can be rendered void as discriminatory for the legislature which had full powers would not have bestowed a thought about discrimination. In our opinion what one has to see when a legislation is impugned under Article 14 is to see whether in its operation, the statute discriminates, and not whether such discrimination is the result of a conscious or indifferent act on the part of the legislature. But we do not wish to express our final opinion on the invalidity of Section 9 by reason of Article 14 as the case can be disposed of on another point. Nor is it necessary to consider whether there is any discriminating treatment under Section 9. The learned Advocate General has contended that there is no discrimination between Hindu and Muslim endowments under Section 9 in its main part; and that the first limb of the explanation will apply to all trusts alike and that, therefore, no question of discrimination at all will arise. In other words, what is said is that if a Mutavalli can lease the property he will be the landlord, and such a landlord will be obliged to sell the property; title to the property being made perfect by the statute. We have already expressed our view that the first limb of the explanation will not apply to the property belonging to a Muslim wakf. In the view we are taking of the question to be dealt with below, we consider it unnecessary to express any opinion as to whether the second point of the explanation will apply to wakf.
40. Under Section 9 (a) the tenant should file an application within one month after the service of summons or within a like period after the Act came into force in a suit for ejectment or proceeding under Section 41 of the Presidency Small Cause Courts Act. Admittedly in the present case, the application was not filed within one month of the filing of the application for eviction in the Court of Small Causes and it was filed only while the appeal was pending before the lower Appellate Court, but even so, there was no original application but only an interlocutory one in the appeal. The appeal itself arose out of a suit for a declaration of the respondent's title and for an injunction; it was not one for possession. It may be, as we have said earlier that the suit can be regarded as a continuation of the application for eviction for certain purposes like restitution etc. But it cannot be regarded as a suit for possession for the purposes of Section 9. That provision is in its nature expropriatory and could be confined only to suits or applications in terms asking for possession. The provisions of Section 9 will not therefore apply to the instant case. The respondent, would however, be entitled to be paid compensation for the superstructure. We, therefore, set aside the judgment of the learned Judge, and of the lower Appellate Court and remand the case to the Trial Court for ascertainment of the value of the superstructure and for passing consequent orders. In case the Trial Court finds that the superstructure had not been removed by the respondent, it will pass a decree in his favour for its value which will be recovered by him from the appellant. There will be no order as to costs.