1. This is a petition under Article 226 of the Constitution to quash the Resolution, dated February 18, 1960, of the Area Committee for Madras appointing three non-hereditary trustees for Sri Agatheeswarar and Prasanna Venkatesa Perumal temples, Nungambakkam. The petitioners are the wife and minor son respectively of the previous holder of the hereditary office of trusteeship in the temples. That the office of the trustee is hereditary appears to have been recognised by this Court in C.S. No. 656 of 1948 in which a scheme for management of the temples was settled. Respondents 2 to 4 are the non-hereditary trustees appointed as such by the said Resolution. Against the Resolution of the Area Committee, the petitioners would appear to have filed a revision to the Commissioner for Hindu Religious and Charitable Endowments but unsuccessfully. In W.P. No. 855 of 1958, this Court directed by a writ of mandamus that the Commissioner should recognise the first petitioner as the hereditary trustee in the place of her husband, who, it is said, had been removed from the office on certain grounds which are not relevant to the present purposes.
2. The appointment of respondents 2 to 4 is impugned in this Court on two grounds : (1) that the office of the trusteeship in these temples being hereditary, there is no power provided for the Area Committee by the Madras Hindu Religious and Charitable Endowments Act, 1959, to appoint them and (2) that even assuming that the Area Committee had power under Clause (2) of the Scheme settled by this Court, inasmuch as by a single resolution three non-hereditary trustees were appointed while that clause permitted only two, the Resolution in question is void in its entirety. The first ground involves an examination of the relative provisions of both Madras Act (XIX of 1951) and Madras Act (XXII of 1959). For the purpose of appointment of trustees, temples have been divided into those in which the office of a trustee is hereditary and those in which such office is not hereditary. There is a further bifurcation based on the income of the temples, as those listed and those not listed. In the context of the classification just mentioned, have to be understood the scope and ambit of the relevant provisions relating to appointment of trustees. In the old Act, Section 6 defined an Area Committee and Section 13 prescribed its strength and jurisdiction. These provisions have been repeated in the new Act as well, without any material change. Section 39 of the old Act provided for the power of the Commissioner to appoint trustees for institutions having no hereditary trustee and those having a hereditary trustee. Sub-section (1) of that section related to the former kind of institutions and Sub-section (2) to the latter kind. The Commissioner's power of appointment of trustees to both kinds of temples was made applicable only to what is termed as listed temples. Section 41 of the old Act gave power to the Area Committee to appoint trustees as is vested in the Commissioner in the case of religious institutions referred to in Section 39. Because Sub-sections (1) and (2) of Section 39 required that not less than three and not more than five persons should be appointed as trustees, the Proviso to Section 41(1) had been inserted enabling the Area Committee to appoint a single trustee in the case of institutions having no hereditary trustee. If the matter stood there, there would have been no difficulty in upholding the Resolution of the Area Committee in the instant case. But inasmuch as the Resolution was passed after the new Act had come into force, it has become possible for the petitioners to contend, in the light of the new provisions, that the Area Committee has ceased to have power to appoint non-hereditary trustees in a non-listed temple having a hereditary trustee. This argument is entirely rested upon the omission in Section 49(1) of the new Act to refer to sub-Section (2) of Section 47. Sub-sections (1) and (2) of Section 47 are identical with those of Section 39 of the old Act. Whereas Section 41(1) of the old Act referred to the entirety of Section 39 in relation to the power of the Commissioner to appoint trustees, Section 49 in the new Act restricted its application by only referring to Sub-section (1) of Section 47.
3. It seems to me that the effect of the said omission of Sub-section (2) of Section 47 from the scope of Section 49 is that the Area Committee is not vested with the power of the Commissioner under Section 47(2). Under the old Section 41(1), when it stated that the Area Committee would have the same power as the Commissioner had under Section 39, it undoubtedly meant that the power of the Area Committee extended to appoint non-hereditary trustees to non-listed institutions having hereditary trustees. In view of the omission from Section 49(1), of Sub-section (2) of Section 47, it is not possible and reasonable to hold that the words 'the same power to appoint trustees as is vested in the Commissioner' are of the same amplitude as it would be under both Sub-sections (1) and (2) of Section 47.
4. For the Area Committee as well as non-hereditary trustees, it is contended that what is indicated in Section 49(1) by reference to Section 47(1) is the power of the Commissioner to appoint trustees without reference to the dichotomy based on the difference between institutions having hereditary trustees and institutions having no such trustees. I am unable to accept this approach to the interpretation of Sections 47 and 49. Had Section 49 stated that the Area Committee would have the same power as the Commissioner has in Section 47, it would clearly be a different matter. The position would also have been different even if the said section did not mention Section 47. But when it expressly stated that the Area Committee would have the same power as the Commissioner under Sub-section (1) of Section 47, I do not see how the power of the Area Committee for the purposes of Section 49 can be read in a wider manner. It is possible that the intention of the Legislature was not to take away the power from the Area Committee of appointing non-hereditary trustees to a non-listed temple having a hereditary trustee. But in the absence of any such intention finding an expression in the language used in Section 49, Courts cannot interpret a section on the basis of assumed intentions. My attention has been invited to the Proviso to Sub-section (1) of Section 49 and it has been contended that if the power under Sub-section (1) is limited, the repetition of words 'any institution which has no hereditary trustee' in the Proviso is redundant. Far from this argument helping the respondents, the Proviso by a repetition of those words makes it only further clear that the scope of Section 49 does not take within it a power for the Area Committee to appoint non-hereditary trustees, for the type of institutions mentioned therein. It is no doubt true that a similar Proviso is found added to Section 41(1) of the old Act. But there the main sub-section itself is clear as to its wider scope. It is well settled as a rule of interpretation, that normally a Proviso cannot be read as enlarging the main provision. The Proviso has, in most cases, the effect of cutting down or making an exception from the ambit of the main provision. The true effect of the Proviso, as I see it, in Section 41 of the old Act and Section 49 of the new Act is confined to enabling the Area Committee to appoint a single trustee, as but for the Proviso, the appointment will have to be made of not less than three but not more than five persons as trustees under Sub-section (1) of Section 49. That, I consider is the only function of the Proviso both under the old as well as the new sections aforementioned. I hold therefore, that on a true interpretation of Sections 47(1) and 49 of the new Act and in the light of the legislative history, the Area Committee is not vested with the power of appointing non-hereditary trustees to a non-listed temple.
5. The resolution of the Area Committee is next sought to be supported with reference to Clause (2) of the scheme of management settled by the decree of this Court. That clause runs:
The administration of the affairs of Sri Agatheeswarar and Frasanna Venkatesa Perumal: temples, Nungambakkam, Madras, of all the sub-temples and shrines attached thereto and of all the properties movable and immovable which belong to or have been or may hereafter be given dedicated or endowed thereto shall subject to the provisions herein, vest in the hereditary trustee for the time being and two non-hereditary trustees appointed by the Commissioner or other appropriate authority under the Act.
In this case, the appointment of respondents 2 to 4 was not made by the Commissioner. The question, therefore, arises whether the Area Committee in this case can be said to be 'other appropriate authority under the Act' within the meaning of that clause in the scheme. Those words, in my opinion, are not used necessarily in the context of the enabling power of the appropriate authority under the Act to appoint non-hereditary trustees to the temples as in this case. Those words to my mind, appear to relate to the authority having a general jurisdiction over the temples. Section 15(1)(a) of the new Act refers to the constitution of an Area Committee and also defines its jurisdiction as extending to all temples situated in an Assistant Commissioner's division or part thereof other than listed temples. Under this clause, therefore, of the scheme, the Area Committee would certainly have the power to appoint non-hereditary trustees to these temples in question. But then, it may be observed, that the clause enabled the Area Committee to appoint only two non-hereditary trustees, whereas the impugned resolution appointed three non-hereditary trustees. As the Area Committee's power to appoint non-hereditary trustee is solely rested and dependent on Clause (2) in the scheme of management, its exercise will be limited and controlled by its express provision and Section 118 is of no assistance. That being the case, the resolution appointing three non-hereditary trustees was clearly in excess of the power of the Area Committee. It is obvious that, where three persons were appointed as non-hereditary trustees by a single resolution, no part of the resolution is severable so as to give the benefit of it to one or more of the non-hereditary trustees. It may be that the resolution, while appointing three trustees, specified that two of them would take office at a particular date and the other on a different date. But that fact does not, in any way, enable the severance of the resolution in any manner. The resolution will have to stand or fall as a whole. It is, therefore, hereby quashed.
6. The writ petition is allowed and the rule nisi is made absolute. But in the circumstances, there will be no order as the costs.