Rajagopala Ayyangar, J.
1. The petitioner was the sole hereditary trustee of Sri Avadinathaswami temple, Melvilvarayanallur, Polur Taluk, North Arcot district. It is common ground that the petitioner having succeeded to the office of trustee when his father died in 1936 has been functioning as such ever since. After the enactment of Madras Act XIX of 1951 proceedings were started by the Deputy Commissioner, Hindu Religious and Charitable, Endowments, Coimbatore under Section 58(1) of the Act for framing a scheme in respect of this temple. Section 58(1) enables a scheme to be framed for a religious institution in two contingencies (1) When the Deputy Commissioner has reason to believe that in the interests of the proper administration of a religious institution a scheme should be settled for the institution, and (2) or when not less than five persons having interest make an application in writing stating that in the interests of the proper administration of a religious institution a scheme should be settled for it. In the present case the scheme proceedings were started by the Deputy Commissioner for the reason that the affairs of the institution were not being properly administered by the hereditary trustee. More than one matter was urged as grounds indicative of mismanagement or want of proper management by the trustee but of these that which survived for final consideration by the Deputy Commissioner related to the failure on the part of the trustee, that is, the present petitioner to redeem a mortgage which had been executed in 1924 when the temple was under the management of the petitioner's father. One of the charges in relation to this mortgage was that the trustee did not obtain the sanction of the Endowments Board before the mortgage was executed but this was obviously based on a misapprehension because the Endowments Board was created by the Act which was enacted in that behalf long after the execution of the mortgage. The reason assigned by the trustee for his failure to redeem the mortgage, was that the income from the temple was so small that it left no surplus in his hands for re-payment of the mortgage debt. As far as one could see, his explanation does not appear to have been rejected. The trustee, however, offered to redeem the mortgage provided he was given liberty to make an advance to the temple to enable the redemption of the mortgage to be effected. This request, however, has not been finally disposed of and one does not know at what stage it stands.
2. As stated earlier the proceedings for the framing of a scheme went on before the Deputy Commissioner and he passed his final order on 31st January, 1956, the. operative portion of which ran:
The proceedings be and are hereby dropped for the present. The Assistant Commissioner will take appropriate steps to have non-hereditary trustees appointed to the temple. If after the appointment of non-hereditary trustees, the administration does not improve, the Assistant Commissioner will send a report and request revival of scheme proceedings.
3. In the annexure to this order the reason assigned for making the suggestion of appointment of non-hereditary trustees is to be found in the following sentence:
The main charge against the trustee appears to be his failure to redeem lands alienated (by-alienated the Deputy Commissioner evidently means the mortgage). The plea of the trustee is that he was not able to do it for want of funds. The defects like these could be rectified by appointment of non-hereditary trustees.
4. The legality of this order is not the subject of the proceedings here and hence it is not necessary to canvass the correctness of this reasoning but I cannot pass from it, without observing that the last sentence does not appear to follow from the premises.
5. As recommended by the Deputy Commissioner the Area Committee which had jurisdiction over the temple passed a resolution on 23rd April, 1956, directing the petitioner to show cause why non-hereditary trustees should not be appointed for the temple. In the communication of this resolution to the petitioner the reason why the appointment of non-hereditary trustees was proposed was stated to be that the Deputy Commissioner has directed this appointment to be made in his order, dated 31st January, 1956. The petitioner showed cause, by urging that his administration of the institution was quite proper and that there was no need for the appointment of non-hereditary trustees and that the order of the Deputy Commissioner could not form any legal basis for the action proposed to be taken by the Area Committee. This explanation, however, was rejected and the Area Committee by its resolution or order, dated 16th June, 1956, appointed two persons as non-hereditary trustees of the temple, and these are respondents 2 and 3 in the; present writ petition.
6. The present writ petition has been filed by the petitioner challenging the legality of the appointment of these non-hereditary trustees. Before, however, considering the points urged on behalf of the petitioner it is necessary to refer to two other proceedings which were taken by the petitioner. The first of them was an appeal preferred by the petitioner to the Commissioner of Hindu Religious Endo-ments against that portion of the order of the Deputy Commissioner, dated 31st January, 1956, which suggested that steps should be taken by the Assistant Commissioner for the appointment of non-hereditary trustees. This appeal Was dismissed on 16th July, 1956, by the Commissioner for the following reasons :
The appellant's objection is to the direction given in the order to the Assistant Commissioner to take steps to appoint non-hereditary trustees. It was brought to my notice that non-hereditary trustees have actually been appointed by the Area Committee in its resolution, dated 16th June, 1956. In view of this resolution there seems to be no need to consider the propriety of the Deputy Commissioner giving directions to the Assistant Commissioner, I see no reason tcrinterfere, and the appeal is dismissed.
7. The other step which the petitioner took was to file an application before the Subordinate Judge, Vellore, under Section 39(4) of the Madras Act XIX of 1951 calling in question the legality of the resolution of the Area Committee of June, 1956,appointing non-hereditary trustees to the temple in question. This application, numbered as O.P. No. 50 of 1956 was dismissed on 14th February, 1957, the learned Subordinate Judge holding that the order of appointment of non-hereditary trustees in the present case did not fall within the purview of the provisions of Section 39(4) of the Act provided for the aggrieved party making applications to the Court to modify or to set aside the order. This writ petition was filed in April, 1957.The matters urged by. the learned Counsel for the petitioner in challenge of the validity of the order were:
(1) The resolution of the Area Committee did not comply with the terms of Section 39(2) of the Act, in that there was no enquiry and the committee did not record any reasons as required by the statutory provision under which they traced their power to make the impugned appointment:
(2) Section 41 of the Act under which the Area Committees are vested with jurisdiction to appoint non-hereditary trustees in respect of institutions within their jurisdiction was unconstitutional for two reasons:
(i) the right of the hereditary trustee to manage the affairs of the temple was in the nature of a property right. The enjoyment of that right or property could, no doubt, under Article 19(2) of the Constitution be subjected to reasonable restrictions but in this case the restrictions imposed by Section 41 of the Act were unreasonable in that the power to detract from this property right was vested in an administrative body, the Area Committee, without the aggrieved party having any right to resort to the civil Courts to establish the impropriety or undesirability of interfering with his management of the institution.. This argument was based on Section 39(4) which enables an application to be made to the civil Court by the hereditary trustees who are aggrieved by the appointinment of non-hereditary trustees by the Commissioner, (a provision which would apply to cases of temples with an annual income of Rs. 20,000 and upwards), not being available to similar hereditary trustees whose rights were invaded by Area Committees. This, he urged was an unreasonable restriction under Article 19(1)(f) of the Constitution which would render the provisions of Section 41 inoperative.
(ii) Learned Counsel further urged that the provision conferring a privilege on the hereditary trustees of institution having an annual income of over a particular figure to resort to Courts while denying the same right to hereditary trustees of other institutions constituted an infraction from the equal protection of laws guaranteed by Article 14 of the Constitution.
(3) It was next urged by the learned Counsel that the Area Committee was exercising a quasi-judicial function in making the appointment of non-hereditary trustees under Section 39(2) and for that purpose relied on the reference to 'the enquiry' to be held by the Area Committee as well as the requirement that the committee should record their reasons for their order all contained in Section 39(2). Learned Counsel argued that if the Area Committee were a quasi-judicial authority, they had acted improperly in that they had taken into account the directions of the Deputy Commissioner, dated 31st January, 1956 and as they had been influenced by this irrelevant and improper consideration their order was vitiated by illegality and had, therefore, to be set aside.
8. Learned Counsel for the respondents who did not dispute the proposition that under the terms of Section 39 of the Act the Area Committee was bound to record its reasons contended, however, that this defect in their order was not so vital as to render it illegal and that the petitioner should have approached the Commissioner to exercise his revisional powers under Section 18 of the Act to have the order set aside or modified. The existence of this revisional power or power of superintendence in the Commissioner, which the learned Counsel for the respondents called the alternative remedy was stated to be a factor to disentitle the petitioner to the relief asked for by him in this Court.
9. Without going so far as to say that failure to state reasons for their order would by itself render it liable to be set aside, if otherwise, the order of the Area Committee could be sustained as being based on proper grounds, I consider that the first point ought to be considered in the light of the third of the points which I have set out above. When the Committee called for an explanation, the only matter which was put against the petitioner was the observation of the Deputy Commissioner as regards the necessity for the appointment of non-hereditary trustees to the temple in question. I have set out the relevant portion of the order of the Deputy Commissioner and have made my comment as regards the justifiability of the direction of the Deputy Commissioner. The Area Committee merely obeyed this direction. Since they were a quasi-judicial authority they had to bring to bear on the question an independent and an unbiassed judgment. They were practically denied this freedom by the direction of the Deputy Commissioner which though addressed in terms to the Assistant Commissioner virtually was and was understood to be, a direction to the Area Committee. The Committee felt bound by this direction with the result that they never applied their mind to the question before them and brought to bear on it no independent judgment of their own. It is in this context that the significance of the failure to record reasons by the Area Committee should be viewed. If they had really no reasons, except that the Deputy Commissioner had directed them to make the appointment and they accepted that direction and the reasons contained in the Deputy Commissioner's order without any examination of their own, the order of appointment cannot be treated as one passed by the Area Committee as contemplated by Sections 41 and 39(2) of the Act. If it was really not an act of the Area Committee falling within the relevant statutory provisions, the existence of an alternative remedy and the failure to resort to it, cannot be a bar to the jurisdiction of this Court or even an element affecting the discretion to be exercised in favour of the petitioner.
10. This leads me to the consideration of the second of the questions which the learned Counsel for the petitioner urged. To appreciate his arguments it is necessary to set out the relevant statutory provisions, viz., Sections 39 and 41. Section 39 was amended in 1954 by the Madras Act XXVII of 1954. Before this amendment the Section read thus :
39 (1) Where a religious institution included in the list published under Section 38 or over which no Area Committee has jurisdiction, has no hereditary trustee, the Commissioner shall constitute a Board of Trustees consisting of not less than three and not more than five persons appointed by him ;
(2) Where any such institution has, at the commencement of this Act both a hereditary trustee or trustees and a non-hereditary trustee or trustees the Commissioner shall have power to appoint the non-hereditary trustee or trustees as and when vacancies arise in their number;
(3) Every trustee appointed under Sub-section (1) or Sub-section (2) shall hold office for a term of five years unless in the meanwhile the trustee is removed or dismissed or his resignation is accepted by the Commissioner or he otherwise ceases to be a trustee.
11. After the amendment the Sub-sections following Sub-section (1) read as follows:
(2) Where in the case of any such institution having a hereditary trustee or trustees, the Commissioner, after notice to such trustee or trustees and after such enquiry as he deems adequate, considers for reasons to be recorded that the affairs of the institution are not, and are not likely to be, properly managed by the hereditary trustee the Commissioner may by order, appoint such number of non-hereditary trustees as he thinks necessary, so however, that the total number of trustees does not exceed five.
(3) Every trustee appointed under Sub-section (1) and subject to the result of an application, if any, filed under Sub-section (4) every non-hereditary trustee appointed under Sub-section (2) shall hold office for a term of five years unless in the meanwhile the trustee is removed or dismissed or his resignation is accepted by the Commissioner or he otherwise ceases to be a trustee ;
(4) where the Commissioner by order appoints a non-hereditary trustee or trustees the hereditary trustee or trustees may within thirty days of the receipt of the order file an application to the Court to set aside or modify such order.
(5) Where a vacancy arises in the office of a non-hereditary trustee appointed under Sub-section (2) the Commissioner shall not fill up such vacancy unless for reasons to be recorded, he considers it necessary to do so. A non-hereditary trustee appointed in the vacancy shall be deemed to have been appointed under Sub-section (2) and the provisions of Sub-sections (3) and (4) shall apply accordingly.
Section 41 (1). - In the case of any religious institution over which an Area Committee has jurisdiction the Area Committee shall have the same power to appoint trustees as is vested in Commissioner in the case of a religious institution referred to in Section 39:
Provided that the Area Committee may, in the case of any institution which has no hereditary trustee, appoint a single trustee...
(2) The provisions of Section 39, Sub-section (3) and Section 40 shall apply to the trustee or trustees appointed, or the Board of Trustees constituted, by the Area Committee as they apply in relation to the trustee or trustees appointed or the Board of Trustees constituted, by the Commissioner.
12. Section 39 (1) applies to what are known as listed temples with annual income of Rs. 20,000 and over and which have no hereditary trustees. Before the amendment in 1954, Section 39(2) with which we are concerned applied to the same type of institutions which at the commencement of the Act (August, 1951) had both hereditary and non-hereditary trustees. It did not apply, therefore, to cases where there were sole hereditary trustees. As Section 41 referred to cases of religious institutions referred to in Section 39, the Area Committee's jurisdiction was confined to temples not included in the list and where there were no hereditary trustees, and to non-listed temples which had both hereditary and non-hereditary trustees. Here again the Area Committee would have no jurisdiction to appoint a non-hereditary trustee to a temple where there was sole hereditary trustee under the Act as enacted in 1951. The Madras Act, XXVII of 1954 made a change in this respect. Sub-section (2) was so to speak enlarged by including even cases where the management was by the sole hereditary trustee. This was, however, subject to the qualification that if the hereditary trustee felt aggrieved by such appointment of non-hereditary trustees he might file an application to set aside or modify such order under Sub-section (4). The constitutional objections to the validity of Section 41 raised by the learned Counsel for the petitioner would be seen on analysis to assume that the provisions as to application to Court, set out in Section 39(4) was inapplicable to appointments made by the Area Committee. It was in this view that the learned Subordinate Judge dismissed the petitioner's application, O.P. 50 of 1956 and the entire submission of the learned Counsel on this part of the case based on the correctness of this construction. It would also be seen that if on a proper construction of Sections 41 and 39, the provisions of Section 39(4) were equally available to a hereditary trustee who felt aggrieved by an order of the Area Committee both the constitutional objections urged by the learned Counsel for the petitioner, namely, infraction of or the imposition of unreasonable restriction on, the right of property violative of Article 19 (1)(f) of the Constitution as equally the violation of equality before the law guaranteed by Article 14 of the Constitution would have no basis.
13. Having examined the matter with care, I am of the opinion that the provisions, contained in Section 39(4) are attracted to the exercise of the power of appointment of non-hereditary trustees by the Area Committee under Section 41. The words used in Section 41 are :
The Area Committee shall have the same power to appoint trustees as is vested in the Commissioner in the case of a religious institution referred to in Section 39
14. In Section 39 as it stood before the amendment in 1954, these words would have reference to cases covered both by Section 39(1) and (2). It is on that basis that after referring to Section 39 in general terms in Section 41(1) Section 41(2) proceeds-to make provisions for attracting the tenure of office set out in Section 39(3) to govern the terms of office of all persons appointed by the Area Committee. It is in this, context that the changes effected in Section 39(2) and (3) by the Amending Act XXVII of 1954 have to be understood. Section 39(2) underwent a modification by extending the power of the Commissioner to those institutions where there were previously no non-hereditary trustees but the same were being managed solely by hereditary trustee or trustees. It is not the contention that the power conferred by Section 41(1) does not extend to the type of institutions that were referred to in Section 39(2) as it stood amended. In my opinion if the reference to Section 39 as it originally stood referred to Section 39(1) and (2) it continued to apply to appointments covered by both the Sub-sections.
15. The next step is in regard to the position which Sub-section (4) occupies in the scheme of Section 39.
16. The Supreme Court had in Ramanuj Das v. State of Orissa : 1SCR1046 , considered a related point arising out of a petition under Article 32 of the Constitution questioning the legality of certain provisions of the Orissa Hindu Religious Endowments Act. Mukherjea, J., as he then was, and who delivered the judgment of the Court (on 16th March, 1954) animadverted on the provisions of Section 39(4) of the Orissa Act introduced by an Amending Act of 1952 which rendered an order passed by the Commissioner derogating the right of the hereditary trustee, final and conclusive without giving the aggrieved party a right to approach a civil Court to-question the propriety of the order, and held the provision unconstitutional. His Lordship also indicated that if a right of suit has been provided for questioning the propriety of such an order the provision should have been a reasonable restriction which the State Legislature could legitimately impose. The provision introduced by the Madras Act XXVII of 1954 has to be viewed in the background of this statement of the law. Section 39(2) as it originally stood was concerned with cases where non-hereditary trustees were functioning along with hereditary trustees. By the amendment effected by the Madras Act XXVII of 1954 the right of the Commissioner and the Area Committee was extended to those cases where the administration was solely by hereditary trustees. In such cases the appointment of non-hereditary trustees was certainly an infraction of their rights and in order to conform to the requirements of the Constitution, the propriety of those infractions of their rights was made subject to the powers of the Court to modify such orders. If the provision in Section 39(4) was prompted by a desire to conform to the provisions of the Constitution as expounded in the Orissa Case1, it stands to reason that the Legislature could not have intended a different Rule in regard to hereditary trustees of those institutions whose annual income fell below the figures specified in Section 38 of the Act.
17. This apart, I am also of the opinion that Sub-section (4) of Section 39 constitutes, so to speak, a rider or a proviso to Section 39(2) and the mere fact that it appears as a separate Sub-section and not as part of Section 39(2) makes no difference to its real place in the scheme of Section 39. The expression 'power conferred by Section 39' in Section 41 takes in the provisions of Section 39(2) with the qualification prescribed by Sub-section (4). This view is more than strengthened by a reference to Sub-section (3) of Section 39 which is made expressly applicable to appointment made by the Area Committee by Section 41(2). Sub-section (3) as amended by Act XXVII of 1954 incorporates the provision in Sub-section (4) into its text, with the result that reference to Sub-section (3) in Section 41 would be to that Sub-section with Sub-section (4) added.
18. The conclusions that I draw from the foregoing are : (1) that the provision for resorting to a civil Court under Section 39(4) is applicable to orders of the Area Committee under Section 41 read with Section 39 and that there is no infraction from the right of property which the hereditary trusteeship imports : (2) There is no basis, therefore, for the complaint that Section 41 violates the right to equal protection guaranteed by Article 14 of the Constitution.
19. From what I have stated earlier it would be seen that the learned Subordinate Judge reached an opposite conclusion on the construction of Section 39(4) in O.P. No. 50 of 1956 filed by the present petitioner; If I had not upheld objections 1 and 3 raised by the learned Counsel for the petitioner I intended to call for the records in O.P. No. 50 of 1956 under Article 227 of the Constitution with a view to consider whether it should not be set aside, but this course has become unnecessary since the petitioner has been able to establish for the reasons I have already discussed that the order of the Area Committee was zitiated by errors of such a character that this Court would set it aside under Article 226 of the Constitution.
20. The result is that this writ petition is allowed and the order of the Area Committee appointing non-hereditary trustees to Sri Avadinathaswami temple at Melvilvarayanallur is set aside, the Rule being made absolute. The petitioner is entitled to his costs. Counsel's fee Rs. 100.