1. This civil revision petition and the Writ petition arise out of the same order.
2. The facts are: In Vatticherukur village ill Guntur taluk, there is a temple known as Sri Brahmeswaraswami temple. The archaka of this temple was Prattipati Dandaiah. He seems to have been practically managing or more appropriately mismanaging the affairs of this temple and the Hindu Religious Endowments Board has intervened. From the order of the Hindu Religious Endowments Board, Annexure to order No. 8870 dated 18-11-1949, it appears that this archaka has been dismissed from service. The Board has appointed as the managing trustee of this temple Sri Nori Venkatrama Dikshitalu in its order No. 1943 dated 5-7-1947. The dismissed archaka who has been managing the properties claimed as the endowments of the temple refused to hand over possession of the properties to the deity by its managing trustee.
Then two sets of proceedings had arisen. The managing trustee filed O. P. No. 149 of 1949 before the District Judge of Guntur under Section 78 of Madras Act II of 1927 for delivery of possession of the temple properties. This dismissed archaka contended that these properties were granted to the ancestors of this Dandaiah who was the hereditary archaka of the temple and that the properties had been leased out to Raghavayya and others for a period of five years by means of a registered lease deed dated 1-5-1949. On account of the passing of the new Hindu Religious and Charitable Endowments Act, O. P. No. 149 of 1949 was returned to the managing trustee by the learned District Judge on 30-11-1961 for presentation to proper court. The dismissed archaka thereupon filed O. S. No. 725 of 1951 in the District Munsifs court Guntur, for an injunction restraining the managing trustee from interfering with the archaka's possession. On 6-12-1951 the learned District Munsif also granted an interim injunction restraining the managing trustee from taking possession of the disputed properties. This is one set of proceedings.
The other set of proceedings was before the Additional First Class Magistrate, Guntur. The Hindu Religious Endowments Board had issued a certificate in their order No. 4825-B dated 15-9-1949 that the lands noted in the schedule and situated within the limits of the jurisdiction of the Additional First Class Magistrate's Court, Guntur, were the lands of the said temple. The Managing trustee on the foot of this certificate filed an application before the Additional First Class Magistrate, Guntur, for necessary action under Section 87 read with Section 103 of the Madras Hindu Religious and Charitable Endowments Act XIX of 1951 directing the dismissed archaka and tenants under him under the registered lease deed to deliver possession of the schedule lands with the crops thereon to the managing trustee. The learned Magistrate allowed the application and directed delivery on 4-12-1951.
3. Thereupon C. R. P. No. 2138 of 1951 against the said order of the learned Additional First Class Magistrate and a Writ Petition for issuing a writ of certiorari calling for records in M. C. No. 122 of 1951 on the file of the Additional First Class Magistrate, Guntur, and quashing the order dated 4-12-1951 of the said Magistrate (2nd respondent), have been filed.
4. This writ petition was directed by Subba Rao J. to be posted along with the C. R. P. In the C. R. P. several ancillary petitions have been filed like stay, appointment of Receiver, contempt etc., and appropriate interlocutory orders have been passed.
5. On the contention of the learned advocate Mr. Chinnappa Reddi, the Additional First Class Magistrate, Guntur, was directed to submit a finding on the following point viz., whether the archaka had notice of the proceedings resulting in the issue of the certificate by the Hindu Religious Endowments Board and which is recited by the Magistrate in the preamble to his proceedings, and a finding has been received in the affirmative.
6. The main point taken in the C. R. P. arising from the order of the learned Additional First Class Magistrate is as regards the scope of Section 87 of the new Act and in the writ petition it is contended that Section 87 of the new Act is 'ultra vires' of the Constitution.
7. The contention of Mr. Chinnappa Reddi in so far as the C. R. P. is concerned seems to be that an application under Section 87 of the new Act is not in the nature of an application for execution and that there should be an enquiry under Section 87 of the new Act as under Section 78 of the old Act as laid down in certain decisions of this court. On the other hand, Mr. B.V.R. Narasu contends; Section 87 of the new Act provides for an enquiry arid consideration of objections before the grant of certificate and also provides that the certificate shall be conclusive evidence that the properties to which it relates belonged to the religious institution. It is clear that if the Commissioner makes the enquiry and grants the certificate, it will have all the force and effect of a decree subject only to its being displaced by the decision in the title suit provided for. There is now no scope for enquiry of any sort before the judicial functionary, no question of discussion whether the Commissioner's certificate is valid even though it should include properties that are strictly not religious endowments as defined in the Act. The Magistrate of first class has merely to execute the order of the Commissioner embodied in the certificate; for the present Section 87 requires the Commissioner to pass the order after enquiry and the certificate will have the force of a decree.
8. In regard to the interpretation of the scope of Section 87 of the new Act, the learned advocates on both sides point out that such an enquiry is contemplated as per -- 'V. Narasimhacharyulu v. P. Kotayya', (A), decided by Basheer Ahmed Sayeed J. and that such an enquiry is not contemplated under--'Nallamuthu Chimpirayya In re'. (B). decided by me. It is of great importance to the public as well as the Magistrate to have an authoritative decision by a Bench regarding the scope of Section 87 of the new Act, viz., whether it is in the nature of an application for execution or the refinements engrafted on Section 78 of the old Act in certain decisions of this court can be imported into it.
9. In regard to the writ petition the learned advocate drew my attention to Articles 14 and 19(1)(f) of the Constitution and this is also a matter deserving consideration and authoritative disposal. Both advocates inform me that they are ready to argue the matter and request that they might be posted for disposal within a fortnight.
10. These papers will be posted before the Hon'ble the Chief Justice for disposal of a Bench if my Lord deems fit.
Subba Rao, J.
11. This civil revision petition and writ petition were directed to be posted before a Bench in view of the important questions raised thereto.
12. The facts are fully stated in the order of reference. The relevant facts may briefly be narrated. Sri Brahmeswaraswami temple is situated in Vatticherukur village in Guntur taluk. The archaka of the temple was Prattipatl Dandaiah. As very often happens in small temples, this archaka was practically in management of the temple. The Religious Endowments Board appointed one Nori Venkatarama Dikshitalu as the trustee of the temple by its order dated 5-7-1947. The Hindu Religious Endowments Board Issued a certificate dated 15-9-1949 to the trustee stating that the lends noted in the schedule were the lands of the temple. The trustee filed an application before the Additional First Class Magistrate, Guntur, for possession under Section 87 read with Section 103 of the Madras Hindu Religious and Charitable Endowments Act, XIX of 1951 (hereinafter called the Act). The lands were in the constructive possession of the archaka through his tenants. The Magistrate directed delivery on 4-12-1951. The aforesaid civil revision petition was filed against that order. The writ petition was filed for issuing a writ of certiorari to quash the order of the magistrate.
Learned counsel for the petitioner in the revision petition as well as the writ raised before us the following three points:
1. Section 87 of Act XIX of 1951 is 'ultra vires' as it contravenes the provisions of Articles 14 and 19 of the Constitution of India;
2. Section 87 of Act XIX o 1951 applies only to a case where the trustee or the archaka admits the title of the temple to the properties in his possession;
3. The order made by the Magistrate in directing delivery without issuing notice offends the fundamental principles of Justice and therefore is bad.
'Point 1:' The relevant provisions of Article 19 of the Constitution of India read as follows':
"Article 19(1) All citizens have the right (f) to acquire, hold and dispose of property; (5) Nothing in Sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any ex sting law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the Interests of any scheduled Tribe".
The fundamental right to hold property can therefore be conditioned by a reasonable restriction imposed in the interests of the general public. The petitioner's contention is that the power conferred upon a Magistrate under Section 87 of the Act is arbitrary in nature and it enables him to dispossess a person who has been in possession of the properties from time immemoral and therefore cannot be a reasonable restriction on his right to hold the property. Before adverting to his argument it may be convenient to consider the scope of Clause (5) of Article 19 as elucidated by the case law.
The question what are reasonable restrictions within the meaning of the said clause has been considered in many decisions. It would be sufficient for the present purpose if a few of them are noticed. in -- 'Chintaman Rao v. State of M. P.', (C) the Supreme Court defined the phrase "reasonable restriction" as follows:
"The phrase 'reasonable restriction' connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word 'reasonable' implies intelligent care and deliberation, that is the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by Clause (6) of Article 19, it must be held to be wanting in that quality,"
It is true that the decision of the Supreme Court turns upon the provisions of Article 19(6); but the principle laid down therein applies equally to the reasonable restrictions imposed under Article 19(5).
in -- Narasimha Reddi v. District Magistrate, Cuadapah', (D), one of us (Subba Rao J.) had to consider the
scope of Article 19(5) in a case where certain restrictions were imposed on the use of fire arms under the Arms Act. The following observations made therein at page 478 may usefully be extracted: "There cannot be a hard and fast rule on the question of what restrictions are reasonable. The reasonableness of a restriction depends upon the nature of the right claimed, the object to be achieved, the means employed and the limitations imposed. They should be fair and commensurate with the purposes aimed at. Their validity should also be tested by another yardstick, namely, whether they were conceived and enacted in the interests of the general public."
Judged by the aforesaid decisions can it be said shat in the present case the provisions of Section 87 at the Act are not reasonable restrictions within the meaning of Article 19(5). Section 87 reads:
"Where a person has been appointed (a) as trustee or executive officer of a religious institution or
(b) to discharge the functions of a trustee of a religious institution in accordance with the provisions of this Act, or
(c) as manager under Section 56 or in any scheme framed by the Board before the commencement of this Act, and such person is resisted in, or prevented from, obtaining possession of the religious institution or of the records, accounts and properties thereof, by a trustee, office-holder or servant of the religious institution who has been dismissed or suspended from his office or is otherwise not entitled to be in possession or by any person claiming or deriving title from such trustee, office-holder or servant, not being a person claiming in good faith to be in possession on his own account or on account of some person not being such trustee, office-holder or servant, any Magistrate of the first class in whose jurisdiction such institution or property is situated shall, on application by the person so appointed, and on the production of the order of appointment, and where the application is for possession of property, of a certificate by the Commissioner in the prescribed form setting forth that the property in question belongs to the religious institution, direct delivery to the person appointed as aforesaid of the possession of such religious institution, or the records, accounts and properties thereof, as the case may be:
Provided however that before issuing any such certificate in respect of any property, the Commissioner shall give notice to the trustee, officeholder, or servant of the religious institution, as the case may be, of his intention to issue the certificate and consider the objections, if any, of such trustee, office-holder or servant:
Provided also that for the purpose of proceedings under this section, the certificate afore-said shall be conclusive evidence that the properties to which it relates belong to the religious institution:
Provided further that nothing contained in this section shall bar the institution of a suit by any person aggrieved by an order under this section for establishing his title to the said property,"
The underlying purpose of the section is apparent. It is conceived and enacted in public interests to enable a trustee of a temple to recover its properties expeditiously from recalcitrant ex-trustees or other servants of the temple. Third parties claiming possession in good faith are saved from the operation of the section. It is directed only against trustees, ex-trustees, office-holders or servants of the temple and persons claiming under them. The section also provides for safeguards against arbitrary eviction. The trustee is required to produce a certificate by the Commissioner in the prescribed form setting forth the properties belonging to the religious institution. That certificate will be given by the Commissioner only after the affected party was heard and his objections considered. The summary order is liable to be challenged in a court of law by an aggrieved party by filing a suit for establishing his title. While it enables the temple to recover its properties from the ex-office-holders, it gives them adequate protection against arbitrary eviction. The history of the legislation, which we will deal with in another connection, shows the necessity for such a provision. Otherwise the dismissed trustee or office-holder would resort to obstructive tactics and involve the temple in unnecessary and prolonged litigation. The public interest would meanwhile suffer as the temple deprived of its properties and involved in litigation would not be in a position to function as an institution and serve the public for which it is intended.
When the legislature in its wisdom thought fit to make a provision like Section 87, which in its ultimate analysis only drives the office-holder to file a suit to establish his title if he had not proved the same before the Commissioner, cannot be considered to be an unreasonable restriction on the right of the petitioner to hold the property. The, object was to safeguard the interests of the temple and to enable regular worship to be conducted therein. The means employed was for providing a summary trial at the hands of a Commissioner after giving reasonable opportunity for the officeholder to put forward his case. The restrictions, therefore, imposed are in our view reasonable and commensurate with the purpose intended.
13. It is then contended that Section 87 contravenes Article 14 of the Constitution which says, 'The State shall not deny to any person equality before the law or equal protection of the laws within the territory of India." The contention is that the State by enabling the temple to recover properties from its office-holders by a summary procedure is making a distinction between a temple and its office-holders and other class of litigants. The scope of Article 14 of the Constitution of India is subjected to much judicial scrutiny in the Supreme Court and the High Courts of this country. After considering the cases on the subject one of us (Subba Rao J.) summarised the law on the subject as follows in -- 'A. B. V. Achar v. State of Madras', W. P. No. 563 of 1952 (Mad) (E): "All persons are equal before the law is fundamental of every civilized constitution. Equality before law is a negative concept; equal protection of law is a positive one. The former declares that every one is equal before law, that no one can claim special privileges and that all classes are equally subjected to the ordinary law of the land; the latter postulates an equal protection of all alike in the same situation and under like circumstances. No discrimination can be made either in the privileges conferred or in the liabilities imposed ........ .....But these propositions conceived in the interests of the public, if logically stretched too far, may not achieve the high purpose behind them. In a society of unequal basic structure, it is wellnigh impossible to make laws suitable in their application, to all the persons alike. So a reasonable classification is not only permitted but is necessary if society should progress. But such a classification cannot be arbitrary but must be based upon differences pertinent to the subject in respect of, and the purposes for which it is made."
To this we will add the statement of Professor Willis that:
"If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed and that one, who assails a classification, must carry the burden of showing that it does not rest upon any reasonable basis."
It is also necessary to bear in mind the presumption of law laid down in -- 'Charlie Middleton v. Texas Power and Light Co', (1919) 249 Under Section 152 at p. 157 that:
"It must be presumed that a legislature understands and correctly appreciates the need of its own people that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds."
The aforesaid principles have been applied to different situations. It is not necessary to multiply cases except to refer to the decision in C. M. P. No. 4127 of 1951 (Mad) (G). There the constitutional validity of Section 52 of the Madras Revenue Recovery Act II of 1864 was questioned as contravening the equality claims. Under that Section:
"All arrears of revenue other than land-revenue due to the Provincial Government, all advances made by the Provincial Government for cultivation or other purposes connected with the revenue, and all fees or other dues payable by any person to or on behalf of the village servants employed in revenue or police duties, and alt cesses lawfully imposed upon land, and all sums due to the Provincial Government including compensation for any loss or damage sustained by them in consequence of a breach of contract may be recovered in the same manner as arrears of land revenue under the provisions of this Act, unless the recovery thereof shall have been or may hereafter be otherwise specially provided for."
The learned counsel appearing for the petitioner there contended that the clause makes an unreasonable discrimination between Government and a person other than the Government, for in the case of the Government they can decide for themselves whether and what amount is due from the other party and they can recover that amount by resorting to the coercive process under the Revenue Recovery Act, whereas in the case of any other person he has to file a suit for the ascertainment of the amount due, obtain a decree and execute the decree through court. That discrimination in favour of the State and against other persons, it was argued, offended the principle of equal protection of the laws enshrined in Article 14 of the Constitution.
The said contention was negatived for the following reasons:
"There cannot be any doubt that the impugned clause discriminates the State from any other person in the matter of realising a debt. But the question is whether the said act of discrimination can be justified on the basis of a reasonable classification. What is the object and the purpose of the classification in this case? Is there any reasonable basis for it, having regard to the differences between the persons classified? The purpose of the classification is apparent. The modern democratic State is not a police State. It is either a welfare State or one attempting to become a welfare State. Its activities are manifold permeating the daily life of society. It takes on hand many social & ameliorative activities & to implement the same enters into commercial transactions with other persons. The present one is one of such transactions entered into by the State in discharge of the duties of the welfare State.
If it is the duty of the State to implement such policies, it is equally its duty, if it should function effectively, to realise the amounts spent on such activities as early as possible. Public interests demand that such dues should be collected expeditiously. in this context no private individual can be put on a par with the State. Nor does the impugned class finally preclude the affected party from getting his rights decided in a court of law. Section 59 of the Act raves such a right. The provisions of Sections 52 and 59, in my view, attempt to reconcile the paramount interests and duties of the State with the just rights of private individuals. The classification therefore is not arbitrary. There is reasonable basis for the classification, having regard to the obvious differences between the State and the private individual in their relation to the object underlying the impugned legislation. I therefore hold that the classification Js not arbitrary but is based upon differences pertinent to the subject in respect of, and the purpose for which it is made." We have cited the judgment at some length for that decision is the nearest approach to the instant case. What is the object and purpose of the classification in the present case? Is there any reasonable basis for it, having regard to the differences between the persons classified. Is the classification based upon differences pertinent to the subject in respect of, and the purpose for which, it is made? Ordinarily when a question of title arises the person claiming title to a property files a suit in a civil court to establish his title to the property. When there is a dispute between the temple and an office-holder of the temple, Section 87 enables a trustee of the temple to recover the property in a summary procedure, driving the office-holder to a civil court to establish his title. Section 87, therefore, discriminates a title dispute between a temple and its office-holder and that between a temple and third parties or between third parties. The purpose of this classification is obvious. It is, as we have already stated, conceived in the interests of the public. It is to enable the institution to recover its properties from its recalcitrant office-holders. It is to enable a public institution to function effectively. For achieving this purpose the disputes between the temple and its office-holders are distinguished from other disputes. For this purpose the disputes between third parties cannot be equated with those between a temple and its offence-holders. Further, the legislature, though it gives an initial advantage to the temple, does not debar the office-holders from agitating their title in a civil court. We therefore hold that there is a reasonable basis for the classification, having regard to the obvious differences between the two classes of disputants in their relation to the object underlying the impugned legislation, we hold that Section 81 is not constitutionally bad on the ground that it offends Article 14 of the Constitution of India.
14. The next question is whether under Section 87 of the Act a Magistrate is empowered to deliver possession of property though the archaka did not admit the title of the temple. Learned counsel for the petitioner contended that under Section 87 of the Act, a Magistrate has no power to direct delivery of possession to the temple of properties in the possession of the archaka and the tenants claiming under him unless he admitted the title of the temple.
To appreciate this contention, it would be necessary to trace the history of this section, to notice the defects in the earlier sections as brought out by decided cases and to find out what defects and in what manner the legislature intended to rectify them. It would be convenient to place in Juxtaposition the corresponding sections of the earlier Acts which finally culminated in Section 87 of Act 19 of 1951.
" 'Madras Act II of 1927': Section 78: Where a committee has appointed a person as non-hereditary trustee of a temple or where a Board or committee has appointed a person to discharge the functions of a hereditary trustee and such person is resisted in, or prevented from obtaining possession of the math or temple or of the endowments connected therewith or of any title deeds or other documents relating thereto, the court may, on application by the person so appointed and on production of the order of the Board or committee appointing him, order the delivery to such person the possession of such property as may be specified therein.
'Madras Act IV of 1930:' Section 78: Where a person has been appointed as trustee of a math or temple or a religious endowment connected therewith or has been appointed to discharge the functions of a trustee by the committee or the Board, in accordance with the provisions of this Act and such person is resisted in, or prevented from obtaining possession of the math, temple or religious endowment concerned and the records, accounts and properties thereof, the court may on application by the person so appointed and on production of the order of appointment, direct the delivery to such person of the possession of the math, temple or religious endowment and of the records, accounts and properties thereof,
'Section 78 introduced by Madras Act X of 1946:' Where a person has been appointed as trustee or executive officer of a math, temple or specific endowment, connected therewith or has been appointed to discharge the functions of a trustee in accordance with the provisions of this Act, and such person is resisted in or prevented from obtaining possession of the math, temple or specific endowment concerned or of the records, accounts and properties thereof by a trustee, office-holder or servant of the math, temple or specific endowment who has been dismissed or suspended from his office or is otherwise not entitled to be in possession or by any person claiming or deriving title from such trustee, office-holder or servant other than a person claiming in good faith to be in possession on his own account or on account of some person not being the said trustee, office-holder or servant, the court shall on application by the person so appointed, and on the production of the order of appointment, and where the application is for possession of property, of a certificate by the Board in such manner as may be prescribed, setting forth that the property in Question belongs to the math, temple or specific endowment concerned, direct delivery to the person appointed as aforesaid of the possession of such math, temple or specific endowment or the records, accounts and properties thereof, as the case may be;
Provided that nothing contained in this section shall bar the institution of a suit by any person aggrieved by an order under this section for establishing his title to the said property. 'Madras Hindu Religious & Charitable Endowments Act (XIX of 1851): Section 87: Where a person has been appointed
(a) as trustee or executive officer of a religious institution, or
(b) to discharge the functions of a trustee of a religious institution in accordance with the provisions of this Act, or
(c) as manner under Section 56 or in any scheme framed by the Board before the commencement of this Act, and such person is resisted in, or prevented from, obtaining possession of the religious institution or of the records, accounts and properties thereof, by a trustee, office-holder or servant of the religious institution who has been dismissed or suspended from his office or is otherwise not entitled to be in possession or by any person claiming or deriving title from such trustee, office-holder or servant, not being a person claiming in good faith to be in possession of his own account or on account of some person not being such trustee, office-holder or servant, any Magistrate of the first class in whose jurisdiction such institution or property is situated shall, on application by the person so appointed, and on the production of the order of appointment and where the application is for possession of property, of a certificate by the Commissioner in the prescribed form setting forth that the property in question belongs to the religious institution, direct delivery to the person appointed as aforesaid of the possession of such religious institution, or the records, accounts and properties thereof, as the case may be;
Provided however that before issuing any such certificate in respect of any property, the Commissioner shall give notice to the trustee, officeholder or servant of the religious institution, as the case may be, of his intention to issue the certificate and consider the objections, if any of such trustee, office-holder or servant;
Provided also that for the purpose of proceedings under this section, the certificate aforesaid shall be conclusive evidence that the properties to which it relates belong to the religious institution;
Provided further that nothing contained in this section shall bar the Institution of a suit by any person aggrieved by an order under this section for establishing his title to the said property".. ..........
15. There was a sharp cleavage of judicial opinion on the construction of Section 78 as amended by. Act IV of 1930. The only difference between B. 78 as it originally stood, and that amended by the later Act was that the amended section enabled the non-hereditary trustees appointed by the Board also to apply under that section. The first decision on the construction of that section was that of Pandalai J. in -- 'Ramireddi v. Sreeramulu', AIR 1933 Mad 120 (H). The petitioners there were the non-hereditary trustees of the temple of Sri Kothandaramawami at Kovvur. The respondents were holding the temple lands under two leases executed by the members of the archaka family. The trustees filed an application under Section 78 of the Hindu Religious Endowments Act for possession on the ground that the archakas had no right to lease the temple lands to others. The District Judge dismissed the petition. In the revision filed against the said order, Pandalai J. made the following remarks on the scope of the section:
"It will be noticed that nothing is said as to who are the persons against whom the application is to be directed. It is certainly the case that in the vast majority of cases the application will be directed against ex-trustees or temple servants or other refractory persons connected with the administration who refuse to give up the property of the temple into the hands of the newly appointed trustees. But there is nothing in the section itself which limits the application to such persons; and it is impossible by mere construction to add words which limit the operation of the general language of the section ......I therefore come to the conclusion that there is nothing in the section itself which debars the jurisdiction of the court to which an application is made under it from trying any question which may be appropriate as between a religious endowment and strangers provided the question be relevant to the possession of the mutt or temple or its endowments or title deeds or documents, that is, the immediate right to possess the same.
But the section only confers a discretion, because the words are "the court may" which show that the court is not bound to make an order under the section in circumstances in which a difficult question of title may arise and prolonged investigation be involved".
But Ramesam J. took a different view from Pandalai J. in -- 'Subrahmanyam v. Subbayi', 1933 Mad WN 934 (I). There the learned Judge confined the operation of Section 78 only to a case of admitted endowments and stated that it was not intended that the District Court should enter into the question of title. But the learned Judge agreed with Pandalai J. that the power conferred en the District Judge under this section was discretionary in nature. In -- 'C. R. P. No. 1004 of 1937: 52 Mad LW 7 (S. N.) (J)', Patanjali Sastri J. as he then was agreed with Ramesam J. but Horwill J. was inclined to accept the view of Pandalai J. in -- 'Yadukondalu v. Suryanarayanarao', AIR 1943 Mad 583 (K). In that case Horwill J. pointed out that the opinion of Ramesam J. was contrary to the trend of the decisions of this court and expressed his view as follows: "It seems to me, with due respect to Patanjali Sastri J. and Ramesam J. that where a court is empowered to hand over temple property to the trustees, it must be deemed to have also the power to decide whether a property is temple property".
It is not necessary to multiply the decisions it would be enough to point out that there were two conflicting views on the scope of the section :
1. The District Court has power to decide questions of title between the trustee and third parties, though in its discretion, if complicated questions are raised, it may refuse to decide the same in a summary proceeding and
2. The District court under the said section can only direct possession in the case of admitted endowments.
Taking advantage of the conflicting views expressed by the Judges on the scope of the section and the consequent uncertainty of the law, the dismissed trustees and the archakas refused to hand over possession to the newly appointed persons and defied the committee by remaining in possession pending the result of the protracted litigations started by them. To end this crying scandal Section 78 was again amended by Act X of 1946. The original section was comprehensive in terms so as to take in even disputes raising questions of title between the temple and third parties; the amended section limits its scope to specified categories of persons. Under the amended section the application can be directed only against a trustee, office-holder or servant of the mutt, temple or specified endowment who has been dismissed or suspended from office or is otherwise not entitled to be in possession or in possession claiming under anyone of them. A third party claiming in good faith to be in possession on his own account or on account of any person other than the office-holders of the temple is saved from the operation of the provision. To that extent the amended section limits the scope of the old section.
While under the old section an order of the Board appointing a person as a trustee, specifying also the properties of the temple therein enables him to apply to the court, under the new section in addition to the order of the Board appointing a person as a trustee, a certificate of the Board giving the particulars of the property belonging to the institution should also be filed. This was obviously intended to get over the interpretation put on the section by some Judges of this court to the effect that the section would apply only to admitted endowments. The certificate of the Board was considered to be sufficient guarantee of the title of the institution to the properties mentioned therein for the purpose of the summary proceeding. While the old section conferred a discretionary power on the court to put the trustee in possession or not of the properties, the new section makes it obligatory on the District court to put the representative of the institution in possession of the properties if the conditions laid down therein are complied with. The section, therefore, remedied the three defects found or held to exist in the old section.
The claims in good faith by third parties in respect of the properties were excluded from the operation of the section. It was confined only to dispute between the temple and Its ex-officeholders. The certificate of the Board was accepted to be prima facie evidence of the title of the temple. The legislature therefore obviously intended in public interests that by Introducing the amendments the newly appointed trustees would be in a position to recover the properties of the institution from recalcitrant ex-office-holders, whether they were trustees or other servants.
16. But unfortunately the intention of the Legislature was in our view frustrated by the decision of the Divisional Bench of this court in -- 'P. Rangacharyulu v. P. Venkatanarasimhayya', AIR 1949 Mad 897 (L). The learned Judges thought that the amendment did not change the law on the subject. They observed at page 900:
"There may be cases where though the trustees, etc., are not persons who entered into possession for the first time were at least persons who admitted or acquiesced in treating the property in their possession as property which they were holding on behalf of and for the benefit of the trust. The requirements regarding the certificate of property is intended to furnish to the court proof that such properties are admitted trust properties. From this the inference is irresistible that the section as amended is confined only to properties in respect of which there could possibly be no dispute regarding title and is intended to provide a summary procedure to recover back possession of the property from a person who obtained possession on behalf of the trust and was holding it as such and who was refractory enough in not delivering possession to the lawful trustee entitled to obtain and hold it. The claims of third persons are expressly excluded, which is also an indication in support of this conclusion. The section therefore is restricted both as regards the persons and as regards the properties. The fact that no appeal is provided for against orders under this section is also a further indication that disputed questions of title should not be tried in an application under the Section."
With great respect to the learned Judges we regret our inability to accept the said observations. The history of the legislation, as pointed it by us already, indicates that Section 78 of the Madras Hindu Religious Endowments Act had been deliberately amended to enable a District Judge to decide on a disputed question of title in the case of ex-trustees, office-holders and servants of the temple and persons claiming under them. The observations would frustrate the very object for which the amendment was made. It would enable the ex-trustees and servants to pursue their refractory and obstructionist attitude which they had been pursuing prior to the amendment, to put an end to which the section was amended. The learned Judges, if we may say so, introduced words in the section which were not there.
In Section 87 of Act XIX of 1951 the legislature attempted to get over the defects pointed out by the learned Judges in the aforesaid case. Section 87 practically re-enacted Section 78 with some necessary amendments. Instead of the court, the Magistrate was directed to put the petitioner in possession of the properties. This was obviously intended to be a more expeditious method of restoring properties to public institutions. But the Magistrate is authorised to give possession only if the Commissioner, who is substituted for the Religious Endowments Board in the Act, gives a certificate setting forth that the property in question belongs to the religious institution. The Commissioner shall give notice to the effected parties and consider the objections before issuing a certificate. This provision gives an opportunity to the affected office-holder 'prima facie' to establish that the properties are his and the certificate so issued is made conclusive evidence for the purpose of its proceedings under Section 87. This preliminary enquiry and the certificate issued after hearing parties was thought by the legislature to be a sufficient guarantee against arbitrary eviction. Under the section the aggrieved party can file a suit for establishing title to the suit property.
This section is therefore an improvement on the earlier section; whereas in the earlier section the enquiry was contemplated by the Religious Endowments Board, under this section the Commissioner is authorised to make a judicial enquiry for the purpose of ascertaining 'prima facie' whether the office-holder or the servant as the case may be, has any title to the property. His decision Is not final for the aggrieved party can always file a suit to. establish his title in a civil court. The other conditions laid down in Section 87 are similar to those found in Section 78 of the earlier Act. If the conditions are complied with, the Magistrate is bound to direct delivery of the properties and the records to the applicant.
After the new Act came into force, Basheer Ahmed Sayeed J. held in -- 'AIR 1953 Mad 616 (A)', that there was no change in the law and that the observations in -- 'AIR 1949 Mad 897 (L)', would equally apply to the interpretation of Section 87. The learned Judge held that it could not have been the intention of the legislature that where the archakas claimed a right 'bona fide' in the property said to belong to the deity, that the right should be disposed of without any proper enquiry in a summary manner. The learned Judge sitting alone agreed with the observations in the aforesaid decision and followed it. We cannot share his opinion.
17. The only question therefore is whether the archaka in the present case is a trustee, officeholder or servant of the temple and the other persons are holding the property claiming under him. "Trustee" has been defined under Section 6(19) of the Act to mean
"any person or body by whatever designation known in whom or in which the administration of a religious institution is vested, and includes any person or body who or which is liable as if such person or body were a trustee."
The definition, though it differs in the terminology used from the definition of trustee in Act II of 1927, for the purposes material to the question now raised there is no difference in the content. Under that definition persons who are in management of the temple properties would also he trustees. It is also common place that in small temples the functions of a trustee and archaka were ordinarily combined in the same individual. The archakas were in possession of the temple properties doing worship and looking after the affairs of the temple.
18. In -- 'President of the Board of Commissioners for H. R. E. Madras v. Koteswara Rao', AIR 1937 Mad 852 (M), Venkatasubba Rao and Cornish JJ., observed at page 856 as follows:
"When the archaka takes possession of the property of the temple or a part of it and conducts himself for all practical purposes as if he were a trustee, we fail to see why his position is not that of a trustee 'de son tort' or 'de facto' trustee, especially when, as is natural in the case of such village temples, there is no properly constituted or 'de jure' trustee. Section 9(13) runs thus: 'trustee' means 'a person, by whatever designation known, in whom the administration of a religious endowment has vested and includes any person who is liable as if he were a trustee ..........Such a trustee or a 'de facto' trustee clearly falls within the definition given in the Act."
In this case in the referring order the learned Judge observed that the archaka of the temple had been practically managing the affairs of the temple. We would therefore hold that the archaka is a trustee under Section 87 of the Act. We would also hold that an archaka would be an office-holder or a servant of the temple within the meaning of the section.
Ganapathi Aiyar in his well-known book on Hindu and Mahomedan Endowments states the position of an archaka as follows at page 619: "The Gurukkal or the Archaka for instance is very often a hereditary office-holder. In many cases endowments are attached to his office, the income of which will represent the remuneration for his services. His duties consist in the performance of the rites of consecration, worship, festivals etc. In Vishnu temples it is also the right of the worshippers to take from his hand sacred water (thirtha) and leaf and to have the God's Shadagopam placed on their head. In many cases he has also the custody of jewels."
In -- 'Seshadri Aiyangar v. Ranga Bhattar', 35 Mad 631 (N), the position of a hereditary archaka of a temple is stated to be that of a servant subject to the disciplinary power of the trustee. The learned Judges held that the trustee of a temple has power to inquire into the conduct of such servants and dismiss them for misconduct. At page 633 the learned Judges summarised the position of an archaka thus:
"The position of an archaka on the other hand, though he may have a hereditary tenure in the office is, in our opinion, essentially that of a servant. The trustee is the representative of the temple and the archaka must be subject to his disciplinary authority."
It therefore follows that an archaka is either an office-holder or servant within the provisions of Section 87. If the other conditions of Section 87 are complied with -- and it is not suggested in this case that they have not been complied with -- the trustee would certainly be entitled to take out an application before the Magistrate for directing the archaka to deliver possession of the properties specified in the certificate as those belonging to the temple. If the archaka can be directed to deliver possession under the section, the tenant claiming under him cannot be in a better position.
19. It was then contended that the Magistrate in this case directed delivery without issuing notice to the archaka or the tenant holding under him and that procedure offends the fundamental principles of natural justice. This argument was countered by the other side by pointing out that under Section 87 while issuing a notice to a trustee by the Commissioner is made obligatory, no such provision is made in respect of the Magistrate directing delivery, and therefore, by necessary implication, it must be held that the Magistrate is not bound to give notice before directing delivery. We cannot accept this argument.
A Magistrate is a judicial officer and the Legislature must be presumed to know that he follows the rules of judicial procedure. Before a Magistrate can direct delivery, the conditions laid down in Section 87 should be compiled with. Unless a notice is given to a party affected, the Magistrate may be misled or the necessary facts may not be brought before him. It may be that the certificate is a forgery; it may be that the petitioner is not a person who has been appointed by the Commissioner as a trustee. Many circumstances can be visualised where it would be necessary for the aggrieved party to appear end put forward his case before the Magistrate. We have no hesitation to hold that an order made by a Magistrate without issuing notice to the archaka or the tenants, claiming under him is bad because it offends the fundamental principles of natural justice. On this simple ground we set aside the order of the Magistrate and direct him to dispose of the application before him in accordance with law.
20. In the writ the same question is raised and for the same reasons we set aside the order of the Magistrate. As the petitioner failed on the main questions raised, we think this is a fit case for directing the parties to bear their own costs.