S. Ramachandra Iyer, O.C.J.
1. This is a petition under Article 226 of the Constitution for calling for the papers relating to G.O. No. 3069 (Revenue), dated 4th August, 1956, for declaring that the Amending Act IX of 1956 and the aforesaid Government Order issued thereunder are ultra vires and inoperative to the extent to which they affect the rights of the petitioner, and for the issue of a writ of prohibition or other appropriate writ directing the Commissioner of Hindu Religious and Charitable Endowments, Madras, and the officials under him to forbear from further interference with the rights of the petitioner as hereditary trustees of Rajan Kattalai pertaining to Sri Thyagarajaswami Temple, Thiruvarur.
2. In the town of Thiruvarur in the Thanjavur District there is an ancient temple noted alike for its beauty and sanctity. The presiding deity of this temple is Sri Thyagarajaswami. The peculiar feature of the temple is that apart from an allowance called the Mohini allowance, there is no other property which can now be said to be devoted for its general purposes. There are, however, a number of specific endowments or kattalais relating to the various services in the temple, its festivals and for conducting several charities in glorification of the principal deity. It is said there are 13 such kattalais : the most important of them are four, namely, Rajan Kattalai, Ulthurai Kattalai, Abisheka Kattalai and Annadanam Kattalai. Large extents of properties have been endowed for each of these kattalais. It is not known when and by whom such endowments were made. It is claimed on behalf of the petitioner that the endowments were made by the Native Rulers who reigned Thanjavur before the establishment of British Rule. The management of each of these kattalais is vested in a certain trustee or trustees hereditarily. The trusteeship of Rajan Kattalai is with the head of Dharmapuram mutt in the Thanjavur District. In one of the numerous inscriptions found in the temple, the connection between the Pandarasannadhi of Dharmapuram with Sri Thyagarajaswami temple of Tiruvarur is referred to ' The Tanjore District Handbook ' published by the Government in 1957 at page 414 states:
that numerous inscriptions have been copied belonging mostly to the later Chola and Pandya times recording gifts of various kinds to the temple. One of them dated 1560 says that Gnana Prakasa Pandaram of Thiruvarur was appointed as supervisor of certain temples. This person is believed to have been the founder of the Dharmapuram matham and a portion of the trust properties in Rajan Kattalai still vests in the matham.
The Dharmapuram Mutt itself has large endowments of lands in Thanjavur and Tirunelveli Districts. The head of the mutt is known as Pandarasannadhi and there are under his management about 27 temples. Having regard to the nature of the duties of the head of a mutt of that importance and magnitude, it is impossible to expect the Pandarasannadhi to personally supervise the temples under his charge, or even to see that they are properly manned and maintained. Deputies have therefore, to be appointed to supervise the various institutions. With regard to the services connected with Rajan Kattalai in Sri Thyagarajaswami temple at Tiruvarur the head of Dharmapuram Mutt generally functions through a deputy known as Kattalai Thambiran.
3. Ordinarily speaking a kattalai is a special or specific endowment for certain specific services or religious charity to be performed. For example Uchikala Kattalai in a temple would refer to an endowment for the purpose connected with the mid-day worship in the temple. Thus kattalais being in the nature of specific endowments, the founder of such kattalais would be entitled to prescribe the line of trustees to manage such kattalais. The trustees so appointed will, however, occupy a subordinate position in relation to the general trustee of the temple. It has been held that the general trustee has a right and duty to see that the funds in the hands of the trustees of the specific endowments or kattalais are duly appropriated for the purpose for which they were endowed.
4. Although a kattalai is a specific endowment in respect of which it would be competent for the founder to prescribe the line of trustees for its management, the property endowed for the performance of the kattalai cannot be held to be transferred in trust to the trustee vesting the legal estate therein in him : it vests in the deity itself. The position of a kattalai trustee therefore would be nothing more than that of a manager of a Hindu Religious Endowment.
5. But kattalais which are attached to Sri Thyagarajaswami temple at Thiruvarur are, however, of a slightly different variety. In Vythilinga Pandora Sannadhi v. Somasundara Mudaliar I.L.R.(1892) Mad. 190. a decision concerning the affairs of Sri Thyagrajaswami temple of Thiruvarur, Muthuswami Iyer, J., delivering the judgment of the Bench observed:
In ordinary parlance the term kattalai as applied to temple endowments signifies a special endowment for certain specific services or religious charity in the temple. Ardajama kattlais or endowment for midnight service is an instance of the former and annadhana kattalai or an endowment for distributing gratis food to the poor is an example of the latter. In this sense the word kattalai is used in contradistinction to the endowment designed generally for the upkeep and maintenance of the temple. In the case of some important temples the sources of income are classified into distinct endowments according to their importance, each endowment is placed under a separate trustee and specific items of expenditure are assigned to it as the legitimate charges to be paid therefrom. Each of such endowments is called also a kattalai and the trustee who administers it is called the kattalai or the stanik of the particular kattalai. The term kattalai is used in the present suit in this sense and Exhibit-R enumerates the several kattalais that exist in connection with the temple at Tiruvarur together with their average income from fasli 1221 to fasli 1228.
6. It is apparent from the above observations that the various kattalais attached to Sri Thyagarajaswami temple were not independent specific endowments for specific purposes but rather of cases where properties belonging to the temple were allotted by a scheme as it were to the various services in the temple, the management of the allotted properties being vested in separate trustees. If this is the true position the trustees of the various kattalais in the temple would form as it were a corporation, in whom the management of the temple properties vested each one of the members of the corporation being in charge of particular items of properties the proceeds of which would have to be devoted to the performance of the kattalai.
7. But whatever may be the origin of these kattalais, there can be no doubt that all the kattalais are integrally connected with the worship in the temple and a coordination of the duties by the various trusttees would be absolutely necessary for the maintenance of proper Worship in the temple. In course of time however emphasis appears to have been laid on the individuality of the kattalais. Anamolies came to light for example, while funds of one kattalai would found to be inadequate for its needs another kattalai had surplus funds. This led to unseemly fights between trustees of the various kattalais. As early as 1910 a suit was filed under Section 92 of the Civil Procedure Code for the settlement of a scheme to manage the affairs of the temple in the Sub-Court at Thanjavur. A scheme was settled and there was an appeal to this Court from that decree. The judgment in that appeal is reported in Gnana Sambanda v. Vaithilinga Mudaliar (1922) 18 L.W. 247. In the course of the judgment it was observed that the kattalais in a temple were analogous to the temple service inams and although it could be said that the idol was interested in the proper performance of the duty attached to the kattalai the income from the kattalai did not belong to the idol and could not be mixed up and utilised for all the purposes of the temple, indiscriminately. The learned Judges no doubt, purported to follow the observations of Muttuswami Iyer, J., in Vythilinga Pandora Sannadhi v. Somasundara Mudaliar I.L.R.(1892) Mad. 199 but we are not quite sure whether the conclusion arrived at in the later case is really supported by the observations of Muttuswami Iyer, J. As we pointed out earlier, that eminent Judge was of the view that the kattalais merely formed a classification of the sources of income rather than separate endowments designed for specific services. In Gnana Sambanda v. Vaithilinga Mudaliar (1922) 18 L.W. 247, the learned Judges pointed out that the history of the temple from 1870 to 1882 showed that the kattalais were independent institutions and that the trustee of one such kattalai was not subordinate to another, namely, the ulthurai trustee. In that view the scheme of the lower Court was modified in such a manner as would have the effect of maintaining the individuality of the several kattalais, without interfering with the essential character of the independent trusts while at the same time securing a machinery for the proper management of the temples.
8. The affairs of the same temple again came up for consideration before this Court in Ramanathan Chettiar v. Balayee Ammal (1928) 37 L.W. 33, where Ramesam, J., who was a party to the judgment in Gnana Sambanda v. Vaithilinga Mudaliar (1922) 18 L.W. 247 explained the position of a kattalaidar in the temple. The learned Judge rejecting the contention of one of the kattalai trustees that subject to performance of services, the endowments have to be treated as his property observed at page 40 that all the kattalais were appendages to the temple : they were independent only in the sense that the individuality of the trustees were to be kept up, each kattalaidar being a separate trustee but that there was no question of any private ownership. In other words the properties which formed the subject-matter of the various kattalais did vest in the deity though as a matter of usage the kattalais had acquired a distinctiveness in regard to their management.
9. In the year 1931, there was another suit under Section 92 of the Civil Procedure Code (O.S. No. 5 of 1931) on the file of the District Court, East Tanjore, for the modification of the scheme already framed by reason of certain defects noticed therein. A.S. No. 163 of 1932 was an appeal to this Court from the decree in that suit. The modifications to the scheme which formed the subject-matter of that litigation do not concern us now.
10. In the meantime the Madras Legislature passed the Madras Hindu Religious Endowments Act, 1927, with a view to provide for the proper administration and governance of certain Hindu religious endowments. The Act provided for the supervision of the Hindu Religious endowments through a statutory body known as the Madras Hindu Religious Endowments Board. Provisions were made for the control of religious endowments as well as specific endowments in relation to temples. The Act divided the temples into ' excepted and non-excepted temples . ' An ' excepted temple ' was one in which the right of succession to the office of trustee was hereditary. There was also provision for the framing of a scheme for the management of temples.
11. This Act was amended by Madras Act IX of 1937 by introducing a new chapter, namely Chapter VI-A. That provided that notwithstanding that a temple or specific endowment attached to a temple was governed by a scheme previously framed by the Board or settled by a Court, the Board if it were satisfied that the temple or endowment was being mismanaged and that in the interests of the administration of the temple or endowment, it was necessary to take proceedings under this chapter, might ' notify ' the temple or endowment. On the publication of the notification in respect of the temple or endowment the scheme of administration, if any, settled for such temple or endowment by any Court or by the Board, would cease to apply to such temple or endowment. The Board would then appoint an Executive Officer for the notified temple or endowment and define his duties. The Executive Officer who would practically displace the trustees would be under the control of the Endowment Board. Under the provisions of that enactment there was no time limit for the operation of the notification of a temple made thereunder, so that if the Board notified a temple the notification would have the effect of permanently suspending any scheme settled for the management of that temple, which would for all practical purpose be with the Executive Officer appointed by the Board. Shortly after the passing of Act IX of 1937 proceedings were initiated by the Hindu Religious Endowments Board for the purpose of notifying Sri Thyagarajaswami temple of Thiruvarur and the kattalais attached thereto. The trusttees of the various kattalais opposed this step : but their objections proved fruitless. By G.O. No. 1965, dated 25th May, 1937, the Government declared that Sri Thyagarajaswami temple at Thiruvarur and the specific endowments attached thereto would be subject to the provisions of Chapter VI-A of the Act. An Executive Officer was appointed by the Board on 12 th July, 1937, for the temple as well as for the specific endowments attached thereto. On 30th July, 1937, the Board defined the powers of the Executive Officer and directed him to take charge and be in possession of the properties of the temple and the various kattalais attached thereto and subject to the provisions made in its order, the Executive Officer was authorised to exercise all powers and perform all duties of a trustee of a not-excepted temple. This left the trustees of the various kattalais with very little powers. Beyond a right to be consulted and to offer suggestions for modification of budgets and to receive honours and perquisites no other powers were given to them.
12. The Pandarasannadhi of Dharmapuram Mutt who was the hereditary trustee of Rajan Kattalai instituted C.S. No. 20 of 1938 on the file of this Court for a declaration that the notification by the Government of the Rajan Kattalai as coming under the provisions of Chapter VI-A of the Act and the consequent orders of the Board appointing the Executive Officer and defining his powers were illegal;, for setting aside those orders and for restraining the Executive Officer from taking possession of the Kattalai properties. The suit did not however proceed to trial as the parties thereto entered into a compromise. Briefly stated the compromise maintained the notification defined the powers of the kattalai trustee and the Executive Officer : the possession of the kattalai properties were restored to the kattalai trustee who was to manage the same by a staff under his control : he was to keep accounts,, etc. There was provision therein for the auditing of the accounts and the preparation of the budget was entrusted to the kattalaidar. Leases of trust lands were to be by public auction and the kattalaidar was responsible for the collection of the income. The income realised should be remitted to the Executive Officer. The expenses in connection with the staff employed by the kattalaidar were to be paid by the Executive Officer, who alone was entitled to have the services performed in the temple. There was provision for the maintenance of accounts by the trustee as well as by the Executive Officer. Clause (k) of the compromise decree stated:
The Board reserves to itself liberty to redefine the powers and duties as specified above in case the trustee commits any wilful breach of the above terms and conditions or is guilty of wilful neglect of the duties specified above provided that the Board shall not do so except on notice to the trustee and after giving reasonable opportunity of being heard on this behalf.
The compromise decree is dated 1st August, 1940.
13. There can be no doubt that the compromise proceeded on the assumption that a power existed in the board to notify the specific endowments and to define the powers of the Executive Officer and the trustee of Rajan Kattalai thereunder. The compromise being one intended to define the powers of the Executive Officer and the kattalaidar would enure and operate as long as the notification under Chapter VI-A subsisted. Under Act II of 1927 there was no limitation as to the duration Of a notification once made. It can be assumed that the parties to the compromise contemplated that it was to operate for ever.
14. The Constitution of India came into force on 26th January, 1950. The Hindu Religious Endowments Act of 1927 was repealed and in its place Act XIX of 1951 was substituted and the latter enactment came into force on 30th September, 1951. By Section 5 of Act XIX of 1951 the previous Act, i.e., Act II of 1927 stood repealed. The chapter relating to notification of temples and endowments was numbered as Chapter VI.
15. Section 64 provided for the notification of a temple, or religious institution. Section 64(4) stated:
Every notification published under this section shall remain in force for a period of five years from the date of its publication; but the Government may at any time on an application made to them cancel the notification.
The section in terms provided only for the notification of religious institutions after that Act. Section 103(c) provided for cases where notifications had been made under the previous enactment. That stated that the notification published under Section 65A, Sub-section (3) or Sub-section (5) of the said Act and in force immediately before the commencement of Act XIX of 1951 would be deemed to be a notification published under Section 64 and would be in force for five years from the date of the commencement of this Act. Act XIX of 1951 was amended by Act IX of 1956. Section 2, of the Amending Act substituted a new sub-section in the place of Section 64(4). Under that provision:
Every notification published or deemed to be published under that section shall remain in force for a period of five years but it may by notification be cancelled at any time or continued from time to time for a further period or periods not exceeding five years at a time as the Government may by notification in each case think fit to direct. Section 103(c) was also amended by omitting the words ' and shall be in force for five years from the date of the commencement of this Act'.
The result of this amendment is that Section 64(4) would apply to notifications made after coming into force of Act XIX of 1951 and also to notifications made under Act II of 1927 which were subsisting on the date when Act XIX of 1951 came into force. In both the cases the notification will remain in force only for a period of five years. It can be cancelled even before that period. It can be continued from time to time for such further period or periods as the Government may consider fit.
16. The notification made by G.O. No. 1965, dated 25th May, 1937, as modified by the compromise decree did subsist till the date of coming into force of Act XIX of 1951. On that date the notification would by reason of Section 103(c) in its original form enure for a period of five years from 30th September, 1951., that is till 30th September, 1956. By that time the amendment introduced by Act IX of 1956 had come into force. By virtue of that amendment the Government have a right to renew the notification and this is what they did in regard to Sri Thyagarajaswami temple and the endowments attached thereto. By G.O. No. 3069, (Revenue) dated 4th August, 1956, the Government issued the following order:
In exercise of the powers conferred by Sub-section (4) (a) of Section 64 of the Madras Hindu Religious and Charitable Endowments Act, 1951 (Madras Act XIX of 1951) the Governor of Madras hereby directs that notification No. 638, dated 25th May, 1937, relating to Sri Thyagarajaswami temple, Tiruvarur, Nagapattinam taluk, Thanjavur district published at page 305 of Part I-A of the Fort St. George Gazette, dated 1st June, 1937, be continued for a period of five years from the 30th September, 1956.
17. It is conceded that the Government did not give any opportunity to the petitioner to show that the old Notification should not be renewed.
18. This Notification does not specifically refer to the endowments attached to the temple but there can be no doubt that it would cover all the kattalais attached to the temple as well, as what is renewed is the notification, dated 25th May, 1937, which related to the temple and the endowments attached thereto. Mr. Rajah Iyer appearing for the petitioner impugns the validity of G.O. No. 3069 (Revenue), dated 4th August, 1956, on substantially two grounds. First : the trusteeship of Rajan kattalai being hereditary in the head of the Dharmapuram Mutt, it should be regarded as a right of property, the interference with which is prohibited, by Article 19 (1) (f) of the Constitution. Section 64 of the Hindu Religious and Charitable Endowments Act empowers the State Government to notify religious institutions : the power conferred by that Section is a drastic one. There is no safeguard against its abuse by enabling the aggrieved party to appeal or to contest the validity by a suit. The provisions of the section would enable the Government to notify the temple, interfering with rights not only against the erring trustee but continue it even during the lifetime of his successors. Further the terms of the notification in the instant case destroys the individuality of the kattalai and thereby amounts to an annihilation of the trust itself. Second : As G.O. No. 3069 (Revenue), dated 4th August, 1956, was passed without giving an opportunity to the petitioner to show cause against its renewal, there was no valid performance of the quasi-judicial duty imposed by Section 64(4) on the authority. In other words the order is attacked on the ground of contravening principles of natural justice.
19. The validity of Section 64 of the Hindu Religious and Charitable Endowments Act XIX of 1951 is challenged thus :--A notification of a religious endowment would necessarily involve an invasion into the rights of the trustee of the institution in the matter of management thereof. Where the trusteeship is hereditary the notification would leave practically nothing for the successors to inherit and would thereby interfere with the hereditary right of management which is a species of property. Section 64 which enables such a deprivation of proprietary rights infringes Article 19 (1) (f) of the Constitution and is therefore invalid.
20. It has first to be considered whether the trusteeship of Rajan kattalai which admittedly is hereditarily vested in the head of the Dharmapuram Mutt can be regarded as property. No emoluments are attached to the office; it is a bare right to manage the endowment. The right is analogous to that of a dharmakartha of a temple. In Srinivasachariar v. Evalappa Mudaliar , the Privy Council observed:
The term Dharmakartha is in truth the legal equipollent to trustee. The position of dharmakartha is not that of a shebait of a religious institution, or of the head of a mutt. These functionaries have a much higher right with larger power of disposal and administration, and they have a personal interest of a beneficial character. In the very learned Judgment delivered in Vidyapurna Thirtha Swami v. Vidyanidhi Thirtha Swami (1904) 14 M.L.J. 105 : I.L.R. Mad. 435, the distinction between those functionaries is explained : 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 mere trustee.
In Vidyapurna Tirtha Swami v. Vidyanidhi Thirtha Swami (1904) 14 M.L.J. 105 : I.L.R. Mad. 435, Subramania Iyer, O.C.J., adverting to the legal position of a Dharmakarta of a temple observed that he would be no more than a mere manager occupying a fiduciary position as the natural custodian of the endowed property with no beneficial interest,, therein as the idol itself, the ideal person, would be the owner. Bashyam Iyengar, J., stated at page 454:
In the case of temple endowments whether in the shape of landed property or tasdik allowances have to be devoted to the carrying out of the specific purposes connected with the temple, i.e., the daily worship and the periodical ceremonies and festival purposes defined and settled by usage and custom and generally recorded in what is known as dittam and the dharmakarthas are mere trustees for the carrying out or executing of such trusts.
Whether it be the case of Dharmakartha of a temple or trustee of a kattalai established for the purpose of performance of a vital part of a ritual in a temple, the property covered by the endowment (in the absence of the terms of the foundation to the contrary effect) can be regarded as vesting only in the deity. The trustee has a mere right to manage. He is, however, in the position of a trustee as it is his duty to see to the proper application of the funds to the objects of the trust; he will further be accountable as such. The office of a trustee of a temple or endowment though it carries with it no material benefit to the incumbent is highly prized by reason of the prestige it carries and the deeply rooted belief in the Hindu that performance of such duties without a monetary or like benefit would secure a spiritual benefit.
21. In Ramanathan Chetti v. Murugappa Chetti , the Privy Council held that the manager of a temple was:
an administrator of the property attached to it and as regards that property he is in the position of a trustee. As regards the services in the temple and the duties appertaining to it he would be rather in the position of a holder of office or dignity.
The learned Advocate-General, however, contends that a bare office like that of a manager of a specific endowment or the Dharmakartha of a temple has within it no element of property and could not be regarded as property within the meaning of Article 19 (1) (f) of the Constitution. In Sri Shirur Mutt v. Commissioner, H.R.E. Board (1952) 1 M.L.J. 557, Satyanarayana Rao, J., envisaged the possibility of a dharmakartha or manager of a temple being not merely the manager but entitled to certain beneficial interests in the property as well. Speaking of cases where there was no such beneficial interest the learned Judge observed at page 582:
If there be in an however, instance where the dharmakartha has no beneficial interest of any sort but is a mere manager with hereditary rights, there is no reason to exclude such a hereditary right of management even from the scope of property, but, however it is not necessary to express a final opinion on this.
22. The observations of the learned Judge extracted above would appear to show that he was prima facie inclined to take the view that even a bare right of trusteeship if hereditary would be property. It is, however, contended that there is no support for the view as there is a well-marked distinction between office and property, a mere office not being property. Support is sought for this contention from two decisions of the Supreme Court noticed below. In the Commissioner, H.R.E., Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt : 1SCR1005 , Mukherjea, J., observed at page 1019:
In the conception of mahantship as in shebaitship both the elements of office and property of duties and personal interest are blended together and neither can be detached from the other.
In Raj Kali Kuer v. Ram Rattan : 2SCR186 , it was held that on the same analogy as that of she-bait, the right of a hereditary priest or poojari in a temple must also amount to property where emoluments are attached to such an office. The two decisions cannot be taken to have decided that where there is no beneficial interest in the trustee but the office is hereditary, it is not property of the incumbent. Property is a thing which is owned : It need not necessarily be remunerative. Where a trusteeship is heritable the indicia of ownership, viz., possession and transmission to heirs is there; in most cases it is not alienable but that is by reason of the peculiar nature of the office and cannot for that reason make the trusteeship any the less a property. In Krishna Bhat Bin Hiragana v. Kapal Bhat Bin Mahalbhat (1869) 6 Bom. H.C.R. 137, and Balavantray v. Purushotham Sidheshwar (1872) 9 Bom. H.C.R. 99, reference was made to the standard text-books on Hindu Law to show that in the Smrithis and commentaries, the hereditary office was assimilated to the immovable property. That was also the view held by the Privy Council in Maharana Fatteh Sanghji Jasvant Sangji v. Desai Kalian Baiji Hekocomut L.R. 1 IndAp 34. In Manaithunai Natha Desikar v. Gopala Chettiar (1943) 1 M.L.J. 434 : I.L.R. (1943) Mad. 858 , Krishnaswami Iyengar, J. referring to a bare trusteeship observed that a hereditary office being something which was capable of being inherited necessarily involve the idea of property. Narayana Nam-budripad v. State of Madras (1953) 2 M.L.J. 699, recognised that the hereditary trusteeship of a temple (there being no question of any beneficial interest) was property within the meaning of Article 19 (1) (f) of the Constitution. This was followed by Balakrishna Iyer, J., in Sankaran Nair v. Govindan Nambiar (1955) 1 M.L.J. 243. Therefore irrespective of the question of any beneficial interest in or emoluments attached to the office, a trustee or manager of a temple or endowment who obtains the right to the office by hereditary right would be entitled to it as his property.
23. The question then is whether Section 64 of the Act interferes with rights of property. The learned Advocate-General contends that what the section provides for is a mere transfer of management from the trustee to the Executive Officer and cannot be said to interfere with any right; particularly so in a case where actual possession of the subject-matter of the endowment is left with the trustee. The question whether there has been an interference or not has to be judged after having regard to the nature of the property. In the case of a bare trustee, it is the duty, the right to manage that form the substance of the office. Shorn of that right, the office would have no prestige; nor acquire for the holder the expected spiritual benefit.
24. A reading of Chapter VI shows that the effect of the notification is practically to oust the trustees in charge of the temples or endowments from their office. The management of the institution is thereafter handed over to a paid officer of the Board or the Government. In Commissioner, H.R.E., Madras v. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt : 1SCR1005 , the Supreme Court took the view that the provisions in Chapter VI of the Act which relate to notifications of religious institutions were extremely drastic in their character and therefore void. It was pointed out that the worst feature of a notification is that no access is allowed to the Court to set aside the order of notification. In Sri Jagannath v. State of Orissa : 1SCR1046 the Supreme Court dealing with the Orissa Religious Endowments Act which provided for settlement of a scheme in regard to a religious institution providing for an executive office for ensuring administration of the endowed properties but which afforded no facility to the aggrieved party to challenge the propriety of the scheme either by way of appeal or by a suit, held that it amounted to an unreasonable restriction upon the right of property of the superior of the religious institution which is blended with his office. But it is contended that the two decisions of the Supreme Court related only to a notification of a mutt where the matathipathi had a beneficial interest in its income and could not properly be held applicable to the case of a temple or endowment the trustee whereof has no such beneficial interest in its income. We are, however, unable to see any difference in principle between a case of a trustee having a beneficial interest and one having a bare right to office which however, is hereditary. In either case the interference would be a restriction on the enjoyment of property. The only question will be whether the restriction imposed is a reasonable one. It is contended that a mere interposition of an executive office can in no circumstances amount to interference as the Supreme Court itself has in one case sanctioned a provision for vesting the management in an Executive Officer. But that was under a scheme in respect of which the statute provided facilitates to challenge its propriety by an appeal or suit. There is no such safeguard in a notification.
25. The learned Advocate-General then raised two contentions : (1) there was factually no invasion of rights of the petitioner under the notification of the year 1937 and a continuance of the same cannot contravene Article 19 (1) (f); (2) such invasion as there was was the result of a judicial act on the basis of an agreement inter partes and that there can never be a contravention of a fundamental right by what is essentially a judicial act. (1) Before considering that first point it is necessary to refer to the basis of the compromise which governed the notification and defined the rights of the trustee as well as the Executive Officer. It is but natural that the Hindu Religious Endowments Board should in respect of an extensive endowment, which forms the subject-matter of Rajan Kattalai consider that there should be effective supervision by a close scrutiny of accounts annually in regard to revenue and expenditure and the application of the proceeds to the objects of the endowment and that there should be no scope for wastage or misapplication of funds. The kattalai trustee having regard to his superior spiritual position and his other duties could only delegate the duties relating to Rajan Kattalai to another. The nature of the kattalai itself required that there should be a coordination between it and the other kattalais in the temple. These circumstances which are peculiar to the institution in question did require at least a scheme. There was a scheme, but evidently that was found wanting; the procedure by notification was then resorted to. The compromise that followed it, reduced its rigour and left the possession of the properties to the management of the petitioner but in other respects, principally, in the matter of the application of the funds very little was left to the trustee. Further the important rights of the kattalaidar like the services erupadies and festivals relating to the kattalai were to be done only by the Executive Officer, the trustee or the Kattalai Thambiran being entitled only to receive honours pertaining thereto. He could no doubt see that such services are duly performed; but that is what any other worshipper could do. He had no direct disciplinary control over the servants. There can be little doubt that the notification of 1937 even as modified by the compromise did interfere with the petitioner's right as a trustee. (2) The next contention is that as the notification and the subsequent compromise obtained the imprimatur of the Court, they would have all the qualities of a judicial adjudication and even if they are regarded as unconstitutional invasions of right, a party cannot be heard to challenge it on principles analogous to res judicata. Support for this contention is sought in the decision in Chicot Co. Drainage Dist. v. Baxter State Bank 84 L. Ed. 329. In that case acting under the provisions of a statute, a Court gave certain directions in regard to repayment of loans incurred by a stautory corporation by which the creditor was debarred from making claims in respect of his dues except under the decree. That judgment became final. Later it was held in another case that the statute under which the provision for liquidation of the corporation's debts was made, was unconstitutional and invalid. The creditor who presumably was bound by the previous decision claimed outside it. It was held that the bond-holders could not recover on their bonds on the ground that the decree was void and the actual existence of the statute on which the previous decree was made cannot be ignored and rendered invalid on any theory of retroactive invalidity of the statute.
26. We are unable to see how the principle of the decision will at all apply to the present case. At the time when the 1937 notification was made there was no constitutional bar against the Legislature enacting laws which infringed rights of property. No plea was available to the petitioner in that suit to contest the constitutional validity of the notification. What the compromise did was to define the powers of the Executive Officer and trustee; that proceeded on the basis of an acceptance of the notification as valid. The compromise being one regulating the rights of parties will cease to operate when the notification failed to operate. If as it is contended for the petitioner, the soundness of which contention we shall examine presently the notification expired with the repeal of Act II of 1927 and what in effect ensued was a fresh notification under Act XIX of 1951, the validity of the latter notification will have to be tested in the light of the provisions of the Constitution.
27. It is next contended by the learned Advocate-General that the compromise decree had for its basis an agreement between the parties and as it would be open to them to regulate by consent the powers of the trustee, this Court cannot by issue of a writ protect those rights given up under the compromise. But this argument fails to take note of the fact that the compromise was made in the context of Act II of 1927 and depended on the continued existence of that enactment. Further as has been held in Shally v. Kraener 92 L. Edn. 1161 while it may be possible for parties to agree in such a way as to impose restriction on one party contrary to constitutional rights, a Court cannot enforce such covenant. In that case there was an agreement between certain parties by which one of them agreed not to sell a property to Negroes it was held that the constitutional prohibition against discrimination would not apply to private contracts, but where the agreements were sought to be enforced in Courts the constitutional prohibition would apply. Vinson, C.J., said:
That the action of the State Courts and of judicial officers in their official capacities is to be regarded as action of the state within the meaning of the Fourteenth Amendment is a proposition which has long been established by decisions of this Court. The short of the matter is that from time of the adoption of the Fourteenth Amendment until the present it has been the consistent ruling of this Court that the action of the state to which the Amendment has reference includes action of the State Courts and State judicial officials.
Therefore if the agreement under the compromise is of an executory nature, not amounting to a surrender of rights and if there is no valid statutory provision to sanction it, this Court could declare it as not binding in so far as it interferes with the fundamental rights.
28. We are not however, concerned in this case with a notification made under Section 64 for the first time after the Constitution. The original notification is of the year 1937. There can be no doubt and indeed Mr. Rajah Iyer conceded the position that Chapter VI-A of Act II of 1927 and the notification thereunder were perfectly valid at that time, notwithstanding the fact that they interfered with the petitioner's rights. What Section 103(c) of Act XIX of 1951 did was to continue the notification. Section 64(4) provides for a renewal thereof thereafter. The real question in the case is whether the provisions in the 1951 enactment for continuance and renewal of notifications which were valid on the date when they were issued could be held to be invalid by reason of the Constitution . It is unnecessary in this view to express any opinion whether Section 64(4) in so far as it relates to notifications made for the first time after the Constitution came into being is valid or not.
29. Mr. Rajah Iyer contends that Section 103(c) which directs the continuation of the previous notification has the effect of making the notification one under the new Act promulgated on the date thereof and that a renewed notification under Section 64(4) should be regarded for all purposes to be a fresh notification the terms of which would have to be judged in the light of the fundamental rights guaranteed under the Constitution. Learned Counsel placed considerable reliance on two decisions of the Kerala High Court in this connection. The first of them Krishna Moosad v. H.R.E. Board 1959 K.L.T. 543 concerned a scheme framed under the old Act which stood renewed by reason of Section 103(c) of the new Act. It was held that the scheme should be regarded as a fresh scheme after the Constitution and its provisions judged accordingly. Mahabala Setti v. Ananda Baliga 1959 K.L.T. 689 the next case related to a temple owned by a denomination in respect of which there was a notification under Madias Act II of 1927. It was held that Section 103(c) of the later Act rendered that notification a post-Constitution one and its provisions therefore invalid.
30. With great respect to the learned Judges who decided those cases we are unable to agree that Section 103(c) has the effect of making the old notification a new one for all purposes or that they should be deemed to be passed on the date when Act XIX of 1951 came into force. Section 103(c) of Act XIX of 1951 states that a notification published under Section 65A of the old Act which was in force at the time of the commencement of the new Act shall be deemed to be a notification under the new Act. The word ' deemed ' connotes a statutory fiction; the purpose of the fiction is evident. The previous enactment having been repealed by Section 5, there should be a statutory basis to sustain the notification; the authority to notify under the new Act is different; there was need for publication. All these form the subject-matter of the fiction. That is to say the notification is deemed to be made and published under the new Act by appropriate authority and in the prescribed manner. A fiction cannot go beyond the purpose for which it is created. That is to say it cannot be extended to other purposes like the quality of the notification or consequence of its continuation. To be more specific the notification of the year 1937 had made certain inroads into a right of the kattalai trustee. The continuance of the notification by Section 103(c) cannot mean that such invasion of rights is again made on the date of the commencement of Act XIX of 1951. The invasion of rights and extent of it with respect to the right of the trustee is a reality; the statutory fiction created by Section 103(c) does not extend to saying that the rights are also deemed to be interfered with on the date when the Act came into force. In its operation Section 103(c) merely perpetuates the then existing state of things.
31. A more important aspect of the question is that at the time when the Constitution came into force the petitioner did not have those rights which under the notification had been given over to the Executive Officer. The Constitution protects only existing rights; those that had been already taken away under the powers vested in preexisting statute cannot be revived except where they depend on the continued existence of the statute which by reason of Article 13 or other provisions of the Constitution itself becomes invalid. Learned Counsel for the petitioner contends that the notification passed under Act II of 1927 is a law and it became invalid after the Constitution came into being in so far as it interfered with the petitioner's rights of property. In Madhu Bai v. Union of India : 1SCR191 , the Supreme Court has laid down that a notification issued by a State is law and will be as much vulnerable to attack as that of the Act under which it was issued if it infringes any of the fundamental rights. That case related to a notification under a post-Constitution enactment. The validity of the Act was not challenged but the notification was impugned as contravening the provisions of the Constitution.
32. Subba Rao, J., delivering the judgment of the Court observed:
Under Article 13 (2) of the Constitution the State shall not make any law which takes away or abridges the rights conferred by Part III thereof; and ' law ' is defined under Article 13 (3) (a) to include a notification. Therefore, the validity of a notification issued by the State, it being law is as much vulnerable to attack as that of the Act itself on the ground that it infringes any of the fundamental rights. If an Act is a self-contained one and the notification issued thereunder only restates the provisions of the Act the validity of the notification cannot obviously be questioned as the validity of its contents were accepted. But if the Act confers a power on the State in general terms and the notification issued thereunder infringes one or other of the fundamental rights, the validity of the Act cannot equally obviously prevent an attack on the notification. In the former case the notification only reflects the provisions of a valid Act and in the latter it is the notification and not the Act that infringes the fundamental rights.
In the present case the question arises in a different form altogether. Act II of 1927 is a pre-Constitution enactment, The fundamental rights declared under the Constitution can be enforced both against the laws of the State as well as executive actions. In regard to pre-Constitution laws and executive actions Article 13 invalidates only the former in so far as they contravene the guaranted rights. An executive act which had the effect of depriving the property but which deprivation was completed before the Constitution is not nullified by Article 13. Different considerations might, however, arise if the pre-Constitution executive act is not a completed one but a continuous one depending on the continuance of a statute. What is the quality and effect of the pre-Constitution notification in the present case? The notification of 1937 was the subject-matter of a subsequent agreement entered into on the basis that it should subsist so long as Act II of 1927 was in force; the effect of its was that the petitioner on his part voluntarily surrendered some of his rights. On the date when the Constitution came into force these rights were not subsisting with the petitioner so as to enable him to claim protection therefor. The Constitution protects rights of property that existed at the time when it came into being, but it does not have the effect of resurrecting lost rights. Such rights as the petitioner had parted with will continue to remain with the Executive Officer of the temple.
33. In W.P. No. 903 of 1955 a question arose as to the validity of the continuance after the Constitution of a notification issued prior to it. Rajagopala Ayyangar, J., held that the continuance was valid on the ground that no right of property existed on the date when the Constitution came into force. The matter was again raised before the learned Judge by means of a review petition (C.M.P. No. 9769 of 1956). The original view was upheld. It was however observed that had Section 64 stood in its original form, that is rendering the notifications valid only for 5 years, the argument against its validity might be plausible but as the amendment of Section 64 in 1956 made it possible for the Government to renew the same, there was no transgression of fundamental rights. It does not appear that there was any challenge in that case of any renewed notification being made contrary to the provisions of the statute itself, a complaint which has been made in this case and which we shall consider later.
34. To resume what we said before, the Supreme Court has recently clarified the position in regard to rights that did not exist on the date of the Constitution in Durgah Committee, Ajmer and Anr. v. Syed Hussain Ali and Ors. Civil Appeal No. 272 of 1960. In that case it was contended that the appointment of a Durgah Committee under the provisions of Central Act XXXVI of 1955 contravened both Articles 26 and 19 of the Constitution. Gajendragadkar, J., dealing with Article 26 observed that it did not create any rights which the individual did not previously have but it merely safeguarded and guaranteed the continuance of rights already possessed. The learned Judge stated:
If the right to administer properties never vested in the denomination or had beep validly surrendered by it or has otherwise been effectively and irretrievably lost to it, Article 26 cannot be successfully invoked.
The same principle was held to apply to a case under Article 19 (1) (f) as well. That would obviously govern the instant case. When Section 103(c) enacted a continuance of the previous notification it preserved the status quo. So too when the notification was renewed under Section 64(4) in the year 1956, they made no fresh inroads into the rights of the trustee; whatever infringement therein was made prior to the Constitution at a time when it was competent for the authority to do so, Therefore G.O. No. 3069 (Revenue), dated 4th August, 1956, cannot be invalidated on the ground of its infringing rights of property owned by the petitioner on the date of the Constitution.
35. But that does not mean that the notification is necessarily valid. The statute imposed certain conditions for a renewal of the notification already made, namely, that the authority empowered to renew must come to a conclusion that it is necessary to extend the life of the notification. We have already referred to the view of the Supreme Court that the proceedings by way of notification are drastic in their character. The Executive Officer supersedes the trustee for all practical purposes. Under the Act a religious institution could be notified when there is mismanagement by the trustee; but mismanagement will not be perpetual. It cannot be assumed that in the case of hereditary trusteeship that every trustee who succeeds the mismanaging trustee will also mismanage the endowment. On the other hand it is just possible that the remedy by way of notification may by worse than the disease of mismanagement by a single trustee. For example there are allegations made in the present case against the Executive Officer of persistent diversion of funds of the trust to other services. If the allegations are well founded it shows that the machinery of notification does not serve the intended purpose. In all such cases a scheme is the proper method to facilitate administration; it can always be framed. The existence of a notification however precludes a scheme. When Act XIX of 1951 was passed the Legislature very wisely provided that a notification whether made under the old Act or the new one should subsist only for a period of five years. This is because a notification would necessarily interfere with rights of the trustee. Power is vested in the Government to cancel it even before; Section 64(4) confers power to renew. It is conceded by the learned Advocate-General that notification proceedings in the first instance are of a quasi-judicial character. We are of the opinion that a renewal of it under Section 64(4), would be equally a quasi-judicial act. Even though an institution had been notified under the old Act, the new provision confers a right on the trustee--a statutory right that the notification would subsist only for five years unless renewed. The result of not renewing the notification would be to revest the management with the trustee. A renewal therefore involves an adjudication of rights, namely, whether the trustee should be allowed to have all his rights back or not. The function of the Government under Section 64(4) is therefore a quasi-judicial duty. Principles of natural justice should be adhered to by the Government before deciding whether the existing notification should be renewed or not. It should neither act lightly nor proceed to renew a notification without a consideration of all the relevant circumstances, above all it should act judicially. Admittedly the Government in the instant case did not invite or consider any representations from the petitioner before directing a renewal of the 1937 notification. It did not even consider whether the circumstances that existed in 1937 still existed to justify a continuance of the notification nor whether it would not be more desirable to have a scheme settled and place the management on a permanent footing. Mr. Rajah Iyer invited our attention in this connection to the Gazette Notification of G.O. No. 3069 to show that far from the Government applying their mind to the necessity for renewal in each individual case, they have by the issue of a fiat as it were renewed the notifications of a number of temples en bloc. We feel little doubt that the renewal of the 1937 notification in the present case was done without any regard to principles of natural justice. Ordinarily we would have directed the issue of an appropriate writ quashing the Government Order and directing the Government to consider judicially whether that notification should be renewed or not. We are not however adopting that course for two reasons; (1) No objection is taken in the affidavit filed in support of the petition that G.O. No. 3069 is invalid for the reason that no opportunity was given to the petitioner to show cause against the proposed renewal. It must however be stated that there was no controversy on the question that no such opportunity was given, and the matter was allowed to be raised without objection. (2) G.O. No. 3069 will expire in a short time, i.e., 30th September, 1961. The Government will then have to consider whether the notification now subsisting should be renewed or not. We have no reason to think that the Government will after this judgment proceed to direct a renewal of the notification without being satisfied as to its necessity or without giving facilities to the petitioner to show cause why it should not be renewed. An issue of a writ under these circumstances would be of no substantial benefit to the petitioner. The petition is therefore dismissed. There will be no order as to costs.