Alfred Henry Lionel Leach, C.J.
1. The petitioner is the head of an ancient and well-known math, the Tiruvannamalai Math at Kunnakudi. As head of the math he is the trustee of a group of five temples, known as the Anjukovil Devasthanams, Kunnakudi. The Madras Hindu Religious Endowments Board, the respondent (hereinafter referred to as 'the Board') has notified these temples under Chap. VI-A of the Madras Hindu Religious Endowments Act, 1926, with the object of taking the management of them out of the hands of the petitioner and placing it in the hands of an officer of its own choosing. The petitioner complains that in taking action under Chap.VI-A the Board has not acted bona fide, but in abuse of its powers, and asks the Court in certiorari proceedings to quash the orders of the Board which have resulted in the notification of the temples. A rule nisi has been issued and the Court has now to consider whether the rule should be made absolute.
2. From time immemorial the, head of the Tiruvannamalai math has been the trustee of the five temples and that the head of this math should be the trustee has been recognized by this Court. A scheme for the administration and management of the temples was framed by this Court in Civil Miscellaneous Appeals Nos. 216, 218 and 219 of 1925. The date of the judgment settling the scheme was 23rd October, 1925. The scheme provided that the then head of the Tiruvannamalai math should be the trustee of the temples and that on a vacancy occurring the head of the math for the time being should be appointed the trustee, unless the District Court of Ramnad 'for any valid reason' should deem him to be unfit. By an order dated the 25th May, 1931, the Board recognized the temples as excepted temples within the meaning of the Act and the head of the math as the hereditary trustee. The petitioner became the head of the math on the 10th June, 1928, but the District Court refused to recognize him as the trustee of the temples and by an order dated 16th March, 1932, appointed a receiver to take charge of them. By an order of a Bench of this Court, dated 5th April, 1934, which was passed by consent of all parties, the District Judge's order refusing to recognize the petitioner was set aside and the petitioner was appointed the trustee. The order of appointment imposed inter alia the following conditions : -(1) within four months after the close of each fasli and subject to the approval of the Court the trustee should appoint a Government certified auditor to audit the accounts of the temples; (2) he should keep the accounts in such form as might be proposed by the auditor; (3) he should submit the budget within the time fixed by the scheme, and (4) he should pay on or before the 15th of the succeeding month the salaries due to the staff of the Board of supervision constituted by the scheme. It is not suggested that the petitioner has not complied with all the conditions imposed by the Court's order. The petitioner took up his duties as trustee on the 9th April, 1934.
3. On the 3rd May, 1938, the Board issued a notice to the petitioner calling upon him to show cause why the temple should not be notified under Chapter VI-A of the Act. The Board made the following allegations : -(1) certain clauses of the scheme framed by this Court were inconsistent with the provisions of the Act; (2) the temples required urgent repairs; (3) the salaries of temple servants had not been paid regularly; (4) the rent collections showed heavy arrears, and (5) the register of properties which Section 38 of the Act required to be kept had not been submitted to the Board. The petitioner appeared and showed cause, but a committee of the Board, consisting of the President and two members, refused to accept the petitioner's explanations, except that given with regard to the fifth allegation and by an order dated 12th January, 1939, notified the temples. The petitioner appealed to the Board under Section 65-A of the Act, but his appeal was rejected. The Board consists of only four members including the President. Therefore the appeal had to be heard by the three members of the Board who formed the committee which considered the petitioner's objections and the fourth member. The petitioner contends that as this Court has framed a scheme for the management of the temples the Board has no power to notify them under Chapter VI-A, and says that the allegations of mismanagement are entirely baseless. The Board denies that it has acted arbitrarily and says that in any event the Court has no right to quash its orders as the notification of the temples amounts to an order of the Government which cannot be questioned by reason of Section 306 of the Government of India Act, 1935 when read with Section 49.
4. It will be convenient to deal first with the contention advanced on behalf of the Board that the Court is prohibited by the Government of India Act, 1935 from issuing a writ of certiorari in this case. Section 65-A of the Madras Hindu Religious Endowments Act provides that the Board may by notice published in the prescribed manner call upon the trustee and all other persons having interest in a temple to show cause why the temple should not be notified under the provisions of Chapter VI-A. The section says that the notice shall state the reasons for the action proposed and specify a reasonable time, not being less than one month, for showing cause against the proposed action. Where no objection has been received,, the Local Government may by notification published in the Fort Saint George Gazette declare the temple to be subject to the provisions of the chapter. Where objections are received the Board shall hold an inquiry and decide whether the temple shall be notified to be subject to the provisions of Chapter VI-A or not. The inquiry is to be held by a committee of the Board consisting of not less than three commissioners of whom the President shall be one. If the committee decides that the temple should be notified the Board is required to publish its decision in the Gazette. If there is no appeal or if there is an appeal to the full Board and the appeal is dismissed the Government may declare the temple or endowment to be subject to the provisions of the chapter. Section 306 of the Government of India Act, 1935 states that no proceedings whatsoever shall lie in and no process whatsoever shall issue from any Court in India against the Governor-General or the Governor of a province whether in a personal capacity or otherwise. Section 49 says that the executive authority of a province shall be exercised on behalf of His Majesty by the Governor. The argument is that by virtue of Section 49 the notification of a temple under Chapter VI-A of the Madras Religious Endowments Act must be deemed to be an act of the Governor and therefore it cannot be challenged.
5. This argument cannot be accepted. In the first place, the petitioner does not ask for the issue of a writ against the Government, but against the Board, which is no part of the Government. In the second place if the Board has abused its powers the Court has power to quash the Board's orders on which the notification is based and if the basis of the notification is illegal the notification is illegal. But even if the notification in such circumstances remained a lawful notification, the Court would still be in a position to take effective action. When a temple is notified under Chapter VI-A the duties of the trustee of the temple pass to an executive officer appointed by the Board under Section 65-C. Where the circumstances demanded it the Court could always prohibit the Board taking action under Section 65-C and if action were taken by the Board before the Court had time to interfere it could prevent the executive officer taking over charge of the trust properties, or remove them from his charge. Lord Maugham in delivering the judgment of the Privy Council in Estate and Trust Agencies (1927) Limited v. Singapore Improvement Trust (1937) A.C. 898, pointed out that a proceeding is none the less a judicial proceeding subject to prohibition or certiorari because it is subject to confirmation or approval by some other authority, and quoted with approval...the observations of R.S. Wright, J., in re The London Scottish Permanent Building Society (1893) 63 L.J. (Q.B.) 112, where the learned Judge said 'an application for prohibition is never too late so long as there is something left for it to operate upon'. I have no hesitation in saying that because the Government is by the Act required to issue the notification the Court is not precluded from quashing the Board's orders if they have been improperly passed and from prohibiting the Board or any of its officers from taking any action in pursuance of the notification. Therefore the contention advanced on behalf of the Board that these proceedings do not lie by reason of the provisions of the Government of India Act must be rejected.
6. The contention of the petitioner that Chapter VI-A does not permit of the notification of a temple in respect of which a scheme has been framed by the Court involves an examination of Sections 57, 62, 63, 65, 65-E and 75. It will be convenient to refer first to Section 75. This section provides that where the administration of a religious endowment is governed by any scheme settled under Section 92 of the Code of Civil Procedure the scheme shall be deemed to be a scheme settled under the Madras Hindu Religious Endowments Act and may be modified or cancelled in the manner provided by the Act. Section 57 falls in Chapter V (which relates only to non-excepted temples) and says that when the Board is satisfied that in the interests of the proper administration of the endowments of a temple, a scheme of administration should be settled, the Board may, after consulting in the prescribed manner the trustee, the committee constituted under Chapter III of the Act, if any and the persons having interest, by order settle a scheme of administration for the endowments of the temple. Sub-section (3) provides that the trustee or any person having interest may institute a suit to modify or set aside the order of the Board under this section. Sub-section (4) declares that a scheme of administration which has been settled by the Court under Section 57 or which under Section 75 is deemed to be a scheme settled under the Act may at any time, for sufficient cause be modified or cancelled by the Court in a suit instituted by the Board or the trustee or any person having interest, but not otherwise. Section 62 falls under Chapter VI which deals with maths and excepted temples. This section provides that when the Board has reason to believe that the trustee of a math or excepted temple has been mismanaging the endowments or has been spending or alienating them for improper purposes, or when not less than twenty persons having interest make an application to the Board stating that in the interests of proper administration a scheme of administration should be settled, the Board may hold an inquiry, and if as the result of the inquiry it is satisfied that a scheme should be settled it has the power under Section 63 to settle a scheme. Section 65 says that a scheme of administration which has been settled by the Court under Section 63 or which under Section 75 is deemed to be a scheme settled under the Act may, at any time, for sufficient cause be modified or cancelled by the Court in a suit instituted by the Board or the trustee or' any person having interest, but not otherwise. Section 65-E which is the last section in Chapter VI-A, says that Sections 57, 62 and 63 cease to apply to temples and endowments which are notified under Section 65-A. It is argued that inasmuch as this section does not make any reference to Section 75 it must be held that the intention of the Legislature was to leave untouched temples in respect of which the Court has settled a scheme under Section 92 of the Code of Civil Procedure. This argument must also be rejected. Section 65-E is obviously inserted to make it quite clear that when the Board notifies a temple or an endowment under Chapter VI-A no steps can be taken to frame a scheme for a non-excepted temple under Section 57 or for an excepted temple under Sections 62 and 63. There is nothing in Section 65-A or in any other section in Chapter VI-A which exempts a temple in respect of which a scheme has been settled by the Court under Section 92, and this being the case the Chapter must be held to apply to a temple which is managed under such a scheme.
7. The powers given to the Board under Chapter VI-A are very wide and their exercise in the case of a temple managed under a scheme framed by the Court sets the scheme at nought. It could never have been intended that the power of notification should be exercised without grave reason. In exercising its powers under Chapter VI-A the Board must act judicially, after a full and proper inquiry, and as the provisions of Chapter VI-A with regard to appeal are illusory the need for care in this respect is all the greater. My reasons for describing the pro-visions of the chapter with regard to appeal as being illusory are these. Section 65-A, as I have already indicated, requires the inquiry where there is objection to a proposed notification under Chapter VI-A to be held by a committee of the Board consisting of not less than three commissioners of whom the President shall be one. Section 11 limits the maximum number of commissioners to five including the President. As I have already pointed, the Board as at present constituted consists of only four members of which the President is one. Therefore the apellate tribunal is in reality the tribunal of first instance. The powers given by Chapter VI-A are so great that they cannot safely be conferred, whether on a statutory body like the Religious Endowments Board or on the Court without provision for an appeal to an independent tribunal and it is to be hoped that this case will have the effect of drawing attention to the need for an appellate tribunal, which is in reality, and not merely in name, an appellate tribunal.
8. In Board of Education v. Rice (1911) A.C 179, the House of Lords affirmed a decision quashing the proceedings of a statutory Board where the Board had failed to deal fairly with the matters in issue. A local education authority refused to pay salaries to teachers in a non-provided school at the same rate as it paid the teachers in provided schools. A complaint was made by the managers of non-provided schools and the Board of Education directed an inquiry which resulted in the report that the local education authority had failed to maintain the school and keep it efficient. The Board of Education was required to determine : (1) whether the local education authority had in fixing and paying the salaries of the teachers fulfilled its duty under Section 7, Sub-clause (1) of the Education Act, 1902; and (2) whether the salaries inserted in the teachers' agreements were reasonable in amount and ought to be paid by the authority, or what salaries the authority ought to pay. The Board of Education gave a decision in writing, but failed to deal with the matters in issue. Its decision was quashed by certiorari by a Divisional Court (Lord Alverstone, C.J., Darling and Lawrence, JJ.) and the decision was affirmed by the Court of Appeal and by the House of Lords. In the appeal to the House of Lords Lord Loreburn, the Lord Chancellor, said:
In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. . . . The Board have, of course, no jurisdiction to decide abstract questions of law, but only to determine actual concrete differences that may arise, and as they arise, between the managers and the local education authority. The Board is in the nature of the arbitral tribunal, and a Court of law has no jurisdiction to hear appeals from the determination either upon law or upon fact. But if the Court is satisfied either that the Board have not acted judicially in the way I have described, or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus and certiorari.
9. Now, has the Board in this case acted in good faith Has it listened fairly to the petitioner and acted judicially in applying Chapter VI-A? An examination of the facts and of the reasons given by the Board for its action leaves no doubt in my mind that the Board has not acted fairly, but to use the words of Cozens-Hardy, M.R. in his judgment in the case which 1 have just cited when it was before the Court of Appeal, the decision is 'so perverse as really to amount to a non-exercise of the jurisdiction entrusted to the Board'.
10. I will deal in the order in which they are set out the four reasons given by the Board for the notification of the temples. It was alleged by the Board that Clauses 3, 6, 7, 8, 9 and 13 of the scheme framed by this Court in 1925 were inconsistent with the provisions of the Madras Hindu Religious Endowments Act. What the Board says here is this:
It is not denied that the provisions of the scheme in question are inconsistent with the Act. The scheme provides for a Board of Supervision. The control is shared by the Board of Supervision and the Court. The act contemplates superintendence and control by the Board. The first reason therefore is held to be proved. What is argued, however, is that a suit might be filed for the amendment of the scheme. But, as has been pointed out, the said remedy is a tardy and ineffective one.
11. This is undoubtedly an incorrect statement of the position. It is in fact denied that the provisions of the scheme are inconsistent with the Act and when the scheme and the Act are examined the denial is found to be fully justified. The statement that the remedy by suit is 'tardy and ineffective' is also open to grave objection. A suit, of course, must always take its turn for hearing unless there are special reasons for expediting it, but the Court for proper reasons shown will expedite the hearing and as the statement that schemes settled or amended by the Court are ineffective is not supported by reasons and is contrary to my experience of many years, I am not prepared to accept it. A scheme framed by the Court speaks for itself. If its provisions are not followed and the trustee abuses his powers or neglects his duties the Court will take effective steps, but of course, those interested in the trust must be sufficiently interested to bring matters to the notice of the Court and this the Board can always do.
12. What are the provisions of the scheme which have been framed in this case? Clause (3) of the scheme provides for a Board of Supervision. Clause (6) says that the trustee shall submit to the Board of Supervision before the 30th June in each year a budget showing the probable receipts and disbursements. Clause (7) requires the accounts of the institution to be audited by a Government certified auditor and an abstract stating the result of the audit to be published in such manner as the Board of Supervision may direct. Clause (8) says that without the sanction of the Board of Supervision, the trustees shall not lease for a longer period than five years, sell or mortgage any of the properties belonging to the temples. Clause (9) provides that where there is or arises a conflict of interest between the math and the devasthanams, the trustee shall always place the matter before the Board of Supervision and it shall be jointly considered by the trustee and the Board of Supervision. In the event of their failing to agree either of them shall be at liberty to refer the matter to the District Court of Ramnad for decision. Clause (13) states that the trustee, the Board of Supervision or the Advocate-General shall have liberty to apply to the District Court of Ramnad for directions generally, including directions for the utilization of surplus moneys, if any. They shall also have liberty to apply for any modification of the scheme. None of these provisions interferes with the provisions of the Act or with the powers of the Board constituted by the Act. These provisions can only be regarded as additional safeguards. Certainly the existence of these clauses does not provide ground for notifying the temples under Chapter VI-A of the Act.
13. The allegation that the petitioner was not attending to urgent repairs is strenuously denied by him. That certain repairs are required is accepted, but the repairs are being executed from time to time as funds are available. The remarks of the Board on the objection indicate that the Board considered that if the petitioner had not sufficient funds available for carrying out all the repairs he was bound to appeal to the general public for donations. The learned Advocate-General very properly made no attempt to justify this ground for the Board's order.
14. With regard to the allegation that the salaries of the temple servants are not paid regularly, the Board says:
It is admitted that the trustee enters upon an elaborate defence of this on the ground that there are seasonal variations, and uncertainty of incomes which renders the regular payment impossible. It is the obvious duty of the trustee to make satisfactory financial arrangements for the payment of the salaries of temple servants. This is very essential in any administration. The plea put forward by him is untenable. This reason also is held to be proved.
15. There is here no examination of the facts disclosed by the petitioner and the facts as stated by him have not been challenged. They are these. All the lands belonging to the temples yield only one crop a year and the success of this crop depends upon the rainfall, as there is no system of irrigation. When the salaries can be paid depends upon the crop and the collections. In difficult times the salaries are bound to fall in arrear. It is not suggested that the temple servants have complained that they are kept waiting longer than in other institutions. In the neighbouring estate of Sivaganga, which is administered by a member of the Indian Civil Service and where there are larger resources, servants are not paid regularly. When the petitioner took over charge of the temples the salaries were nine months in arrear, but at the time he was called upon to show cause why the temples should not be notified the arrears had been reduced to three months. It is not disputed that the position with regard to salaries is far better than when the temples were in the hands of the receiver appointed by the Court and there is no reason to think that the trustee has not done all that was reasonably possible for him to do in the matter of the regular payment of salaries.
16. The Board's rejection of the petitioner's explanation with regard to the collection of arrears is also open to grave objection. Here again no attempt was made to examine the evidence. When the petitioner took over charge of the temples the arrears of rent amounted to Rs. 1,39,291-2-11, a considerable portion of which was irrecoverable as the result of the law of limitation. By the year 1937-38 the arrears had been reduced to Rs. 83,781-11-5. If the sums which had become time-barred had been written off when the petitioner took over charge, the arrears would have been very small, but it has never been the practice to write off amounts which have become time-barred, because many tenants do pay if they can, notwithstanding that the law of limitation has operated in their favour. Of the arrears of Rs. 83,781-11-5, Rs. 20,000 represent debts below Rs. 4 and the cost of filing and conducting suits for the recovery of these sums would be prohibitive. The statements which the petitioner has filed showing the collections have also not been challenged and not only do they show that he has not allowed the arrears to increase, but they show that he has greatly improved the position. Mr. E. V. Sundara Reddi. one of the commissioners forming the committee of the Board which rejected the petitioner's representations, visited the temples in April, 1936. The visit was without notice and had not been included in the commissioner's programme. As the result of this surprise inspection he certified that the temple was well kept, clean and tidy. He added that the trustee and treasurer, assisted by the staff, had been evincing keen interest in the upkeep of the institution. It is impossible to reconcile the order of the Board notifying these temples with this certificate.
17. Further indication of the improper attitude of the Board is to be gathered from what happened when the petitioner appealed. Mr. V. Ramaswami Aiyar who was engaged to support the appeal could not attend at the precise hour fixed for the hearing. The reason was that a Division Bench of this Court composed of Venkataramana Rao and Newsam, JJ., had intimated that they wished him to be present personally in Court at that hour to speak to a certain matter. On receiving this information he wrote to the Secretary of the Board explaining his position, adding that he would attend at the office of the Board as soon as he was able to do so. The delay was only a matter of fifteen minutes, but the Board would not wait for him and when he got there he found that the appeal had been dismissed. It is obvious from the course of events that even if Mr. Ramswami Aiyar had appeared before the Board the result would have been the same, but in refusing to wait for a short time under the circumstances the Board has only emphasised the arbitrary nature of its action.
18. Entirely without reason the Board has taken away from the petitioner the management of the temples of which he was given charge by an order of this Court, passed with the consent of all parties. I consider that the only conclusion which can reasonably be drawn after the examination of the record is that the Board has acted in abuse of its powers. The order of the Committee and that of the Board on appeal will be quashed and the Board prohibited from taking steps to appoint an officer under Section 65-C of the Act.
19. The petitioner is entitled to his costs and we fix the advocate's fee at Rs. 250.
Krishnaswami Aiyangar, J.
20. I agree.