Manavikrama ZamorIn Raja of Kozhikode Vs. Commissioner, H.R. and C. Endowments - Court Judgment

Ansari, C. J.

1. The petitioner claims the respondents' actions to be unconstitutional, and, failing the ground, to be otherwise without jurisdiction. He has consequently prayed for a writ of certiorari, or other appropriate writs, to protect him against the aforesaid acts. Before adjudicating on the legal grounds, we would state the facts, that have caused the writ petition.

2. It is not denied that the petitioner, the Zamorin Rajah of Calicut had become the hereditary trustee of the Varakkal Devaswom in Katchery Amsom, Kozhikode Taluk, from May 2, 1958. The Devaswom owns vacant lands in T. S. Nos. 221, 242 and 251 in Katchery Amsom, and they were at one time taken on lease by the Collector of Malabar on annual rent of Rs. 26-13-6, when they were being used for military purposes. After the expiry of the lease, the trustee, who was the petitioner's immediate predecessor, was informed of the intention to surrender the lands to the Devaswom, and about his making arrangements to assume their possession.

The predecessor, after having taken possession, had granted a lease o the lands on January 27, 1958, to his son for five years. The new lessee was to pay the rent of Rs. 36, and undertook to discharge the Government revenue and all other public charges. The writ petitioner, having earlier assumed charge as the trustee, received on July 2, 1958, a communication from the Assistant Commissioner of the Hindu Religious and Charitable Endowments Administration, about the lease by his predecessor having been granted without permission and knowledge of the Administration, and to be against Rule 9 of the Rules framed under Section 100(2)(m) of the Hindu Religious and Charitable Endowments Act, hereinafter referred to as the Act.

He was further requested to report about his recognising the lease and his having taken any action. The petitioner's case is that thereafter he issued a registered notice to the lessee, informing him about the Administration's objections and asking the lessee to show cause against cancelling the lease. The petitioner's case further is that the lessee was in actual possession, that he replied claiming the objection to be without substance, and showing intention to defend his lease, that the Municipal dues on the lands had risen to Rs. 672-10-0, that the endowment had no funds available for meeting such heavy taxes, and that; under these circumstances, the petitioner thought it advisable to secure from the lessee a fresh lease with enhanced rents.

The correctness or otherwise of the case should not be adjudicated now, because, should we not uphold the Constitutional objection, the adjudication would prejudice the final decision in the proceedings concerning certain charges that have been framed against the writ petitioner under Section 45 of the Act and are the subject-matter of investigation before the proper authorities. The aforesaid charges have been framed after the fresh lease had been executed by the petitioner in favour of the lessee of his predecessor on December 13, 1958.

This lease carries the enhanced annual rent o Rs. 40, and the lessee is to meet all the public charges, the lease being continued for five years, as fixed by the predecessor trustee, from the date of the lease by him. The petitioner received what is marked Ext. B to the writ petition, and it purports to be the charge-sheet. Paragraph 5 of this document states that action was being taken under Section 45 of the Act, and the following charges had been framed:

'(a) That you, in the matter of grant of lease deed dated 13-12-1958, to Sri A.K. Nedungadi, have Committed breach of trust in respect of the temple properties, known as 'Varakkal Maidali and Race Course Grounds', which amounts to an act of misfeasance in respect of the trust;

(b) That you, as hereditary trustee of the temple, are guilty of improper dealing with the temple properties referred to above, in the matter of the grant of the aforesaid lease deed;

(c) That in spite of the fact that the Assistant Commissioner of H.R. and C. E., at Palghat, in his Ref. No. 2424/58/A3 dated 2-7-1958, has brought to your attention that the earlier lease deed by the deceased Zamorin Rajah, dated 27-1-1958, to his son Sri A. K. Nedungadi, was opposed to the rules framed under Section 100(2) (m) of the Act, XIX of 1951, and particularly to Rule 9(1) thereof, you, contrary to the said Rules, have again recognised Sri A. K. Nedungadi as tenant under the 'Devaswom' concerning the said lands, knowing fully well that by doing so, the temple would definitely be deprived of valuable rights in the said properties, and lose considerable sums of money as compensation in the event of compulsory acquisition of the lands under the Land Acquisition Act, which the temple could very well have been in a position to save for itself, if only elementary care had been taken by you in the interests of the temple to strictly adhere to all the relevant provisions of the Rules framed under the Act for prevention of dissipation of temple properties, and for protection and preservation of the income arising from such properties;

(d) That you have wilfully disobeyed the lawful order issued under the provisions of the Act, by the Assistant Commissioner first, and later by the Deputy Commissioner of the H. R. and C. E. (Administration) Department, in having granted the lease dated 13-12-1958; in spite of your pointed attention having been specifically drawn to the relevant provisions of law pertaining to the grant of leases of temple lands, even long prior to the actual date of the document in question.'

Ext. B further states that, pending the inquiry into the charges, the writ petitioner was placed under suspension under Section 45(3) of the Act, and was required to hand over charge of the temple, its records and valuables, to one Radhakrishna Menon, Inspector, Hindu Religious and Charitable Endowments, who was appointed the fit person to discharge the functions of the trustees of the above temple under Section 45(3) of the Act.

3. Both the framing of the charges and the suspension are challenged by the writ petitioner, on the ground that the provisions, under which the actions been taken, amount to interference with the petitioner's right of holding property, contravenes his right under Article 19(1)(f), and is not saved by Clause (5) of the aforesaid Article. In the alternative, it is argued that the powers under Section 45(3) of the Act, which vest the authority with the jurisdiction of appointing a fit person to dis-charge the functions, have been abused in the case, because it has been exercised in violation of the principles of natural justice and without affording the petitioner an opportunity of showinggrounds against the action proposed. This part ofthe order is prayed to be vacated by certiorari ormandamus. It would be of advantage at this stageto extract parts of Section 45 of the Act, whose-constitutionality is challenged by the petition. The section is in these words:

'45. (1) The Deputy Commissioner in the case of any religious institution over which an Area Committee has jurisdiction, and the Commissioner jn the case of any other religious institution, may suspend, remove or dismiss any hereditary or non-hereditary trustee or trustees thereof,--

(a) for persistent default in the submission of budgets, accounts, reports or returns Or

(b) for wilful disobedience of any lawful order issued under the provisions of this Act by the Government, the Commissioner Or Deputy Commissioner, the Area Committee or the Assistant Commissioner, or

(c) for any malfeasance, misfeasance, breach of trust or neglect of duty in respect of the trust, or

(d) for any misappropriation of, or, improper dealing with, the properties of the institution, or

(e) for unsoundness of mind or other mental or physical defect or infirmity which unfits for discharging the functions of the trustee.

(2) When it is proposed to take action under Sub-section (1), the Commissioner or the Deputy Commissioner, as the case may be, shall frame charges against the trustee concerned and give him an opportunity of meeting such charges, of 'testing the evidence adduced against him and of adduging evidence in his favour, and the order of suspension, removal or dismissal shall state the charges framed against the trustee, his explanation and the finding on each charge with the reasons therefor :

Provided that the Deputy Commissioner shall also consult the Area Committee before passing the final order under Sub-section (1).

(3) Pending the disposal of the charges framed against the trustee, the Commissioner or the Deputy Commissioner may place the trustee under suspension and appoint a fit person to discharge the functions of the trustee.

(4) It shall be open to an Assistant Commissioner to move the Deputy Commissioner to take action under Sub-section (1) in respect of any trustee of an institution over which an Area Committee has jurisdiction, and to place the trustee under suspension pending the orders of the Deputy Commissioner under Sub-section (3).

(5) A trustee who is suspended, removed or dismissed under Sub-section (1) may, within one month from the dale of the receipt of the order of suspension, removal or dismissal, appeal against the order to the Commissioner if it was passed by a Deputy Commissioner, and to the Government if it was passed by the Commissioner'.

4. The Government Pleader has supported the constitutionality of the section on two grounds. The first is that hereditary trustee's right of managing endowment, is not property, and doubts have been expressed about the right being such in several cases. The argument is that as the petitioner has no property, no fundamental right of his under Article 19(1)(f), has been infringed by exercise of powers under Section 45 of the Act'. The next ground is that, should the petitioner's right to manage the trust be held to be 'property', Section 45 amounts to reasonable restriction in the public interest, and, therefore, saved by Clause (5) of Article 19.

5. In support of the first ground, the Government Pleader has relied on Sitharamamma v. Deputy Commissioner, AIR 1958 Andh Pra 319, wherein Bhimasankaram, J., has expressed doubt on whether a hereditary trusteeship by itself, without any right of enjoyment in any property, could be held to be 'property' within the meaning of Article 19(1)(f) of the Constitution. The learned Chief Justice in Ram Chanclra v. State of Orissa, AIR 1959 Orissa 5, at p. 8, has held the right not to be such, for, he has observed as follows:

'Hence, the true test in deciding whether the hereditary right to a religious office in a Temple is 'property' or not, seems to be whether the holder of that office has any personal interest of a beneficial character in the properties of the temple. If he has no such interest, it is not property at all........I would, therefore, hold that the hereditary superintendentship of the temple of the petitioner is not 'property' and consequently the Act would not offend Articles 19(1)(f) and 31(2) of the Constitution.'

With respect, we would differ; for, should the rights of trustees under the instruments for secular purposes, be 'property', notwithstanding the benefits under such instruments being enjoyed by others, the rights of the trustees under instruments for religious purposes, cannot be treated differently. In other words, the trustee of a secular trust would be entitled to all the rights of the owner against the rest of the world, and the position of the trustee for the religious purpose, is not different.

It follows, the rights of both would be covered, by the word 'property'. We further think that the word 'property' in the written constitution of the people, accustomed to cherish things other than! monetary benefits, cannot be so narrowly construed. Nor the word in the instrument, intended to be living guidance for the future generation, should receive the interpretation only of the cases decided at the time the Constitution had been framed.

To construe, therefore, the word 'property' in Article 19 as meaning what the Privy Council had in Srinivasa Chariar v. Evalappa Mudaliar, ILR 45 Mad 565, at p. 581 : (AIR 1922 PC 325 at p. 331), held the word to mean in case of trustees would amount to accepting the narrow view of interpreting Constitutions, and that one of us has declined to do. In any case, such a view is not supported by Commissioner, H. R. E. v. Lakshmindra Thirtha Swarniar, AIR 1954 SC 282, at p. 294 and Dwarakadas v. Sholapur Spinning and Weaving Co. Ltd., AIR 1954 SC 119 and we, therefore, hold the right to manage endowed property, which is one of the hereditary and cherished rights in this country, to be covered by the word 'property' as used in Article 19(1)(f).

6. We next come to the writ petitioner's claim of Section 45 of the Act being void, as it exceeds the limits of reasonable restriction in the interest of the general public. In support of this argument, the writ petitioner's learned advocate has relied on the several authorities, where their Lordships of the Supreme Court have upheld the constitutionality of the provisions concerning religious endowments, on the ground that the powers under the different enactment were reasonable because the exercise was subject to the scrutiny and decision by Courts of Law. It is true that in AIR 1954 SC 282 at p. 294, Section 58 of the Act was upheld, because the exercise of power for framing of schemes, has been made the subject of decision by the law court. While so deciding, Mukherjea, J., has at page 294 observed as follows :

'It is true that it is a Government Officer and not the Court, who is given the power to settle the scheme, but we think that ample safeguards have been provided in the Act to rectify any error or unjust decision made by the Deputy Commissioner. Section 61 provides for an appeal to the Commissioner against the order of the Deputy Com- missioner, and there is a right of suit given to a .party who is aggrieved by the order of the Commissioner with a further right of appeal to the High Court.'

In Sadasib Prakash v. State of Orissa, (S) AIR 1958 SC 432, at p. 438, the Orissa Hindu Religious Endowments Act, Act II of 1952 as amended in 1954, came up for consideration, and there the reasonableness of the provision was upheld on the following grounds:

'The inquiry before the Commissioner is assimilated to and is governed by the provisions relating to the trial of suits by enjoining that, as far as may be, it is to be in accordance with the provisions of the Code of Civil Procedure relating to 'trial of suits. While, therefore, under the prior Act the inquiry before the Commissioner might well have been of the nature of an executive inquiry by an Executive Officer, the inquiry under the present Act is by itself in the nature of a judicial inquiry by judicial Officers followed up by a right of regular appeal to the High Court..... The right of appeal is given in very wide and general terms. Obviously the appeal can be both on facts and on law, and would relate not merely to the merits of the scheme, but also to all basic matters whose determination is implicit in the very framing of a scheme. In our opinion, the present provisions cannot be struck down as being in the nature of unreasonable restriction on the rights of the Mahant'.

The constitutionality of the Bihar Hindu Religious Trusts Act in Moti Das v. S. P. Sahi, AIR 1959 SC 942, at p. 949, was challenged, and the Supreme Court has rejected the complaint of the restriction under the enactment being not reasonable, because a right of an application to the District Judge was conferred on the party aggrieved. In this connection, S. K, Das, J., has at page 949, observed as follows:

'Even with regard to the settling of a scheme under Section 32 there is a safeguard under Sub-section (3) thereof, which says that the trustee or any person interested in the trust may, within three months of the publication of the scheme, make an application to the District Judge for varying, modifying or setting aside the scheme.'

The learned Advocate of the writ petitioner is apparently on stronger ground when he argues that in the absence of some right of suit, or scrutiny, the provision interfering with the trustees' right of managing the endowment property, would not amount to reasonable restriction in the interests of the public. We regret our inability to accept the argument which rests mainly on the ground that the judicial scrutiny need always be in a given form in order to make the restriction reasonable.

On the other hand, we feel that the Supreme Court in an earlier pronouncement has laid a wider test of what would be reasonable restriction, and which has not been circumscribed by later pronouncements. Mahajan, J., in Chintamanrao v. State of M. P., AIR 1951 SC 118, has held 'reasonable restriction' in Article 19(6) to connote the limitation, which should not be arbitrary or of an excessive nature and beyond what is required in the interests of the public.

He has further held that 'the word 'reasonable' implies intelligent care and deliberation, that is the choice of a course which reason dictates, that the legislation which arbitrarily or excessively invades the right, cannot be said to contain the quality of reasonableness, and that the legislation, unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by Clause (6) of Article 19, must be held to be wanting in that quality.' In State of Madras v. V. G. Row, AIR 1952 SC 196 at p, 200, Patanjali Sastri, C. J., has said:

'It is important in the context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.'

7. More recently, Subba Rao, J., has in Aruna-chala Nadar v. State of Madras, AIR 1959 SC 300, reaffirmed what was held in Chintamanrao's, AIR 1951 SC 118, as well as in V. G. Row's, AIR 1952 SC 196 at p. 200, cases. We, therefore, propose to decide the constitutionality of Section 45 in the light of the aforesaid observations. It is well known that at the time the Act was passed, the managements of the endowed properties by those entrusted with the duties, were not satisfactory; and! some form of supervision, more effective than those under the earlier enactments, had become necessary.

The section challenged by the writ petitioner, has been put in Chapter III of the Act, and that Chapter deals with the Commissioner's several powers over the religious endowments. Section 20 generally vests him with superintendence, and thereafter follow his other specific powers of control. It follows that where acts of mismanagement had occurred, or the trustee becomes permanently disabled, the person vested with the superintendence, should have the immediate power of pass- ing such Orders as would preserve the endowment from being further mismanaged.

In such circumstances, the trustee concerned, cannot complain of unreasonable restrictions on his rights, because the rule is well established that persons committing breaches of trust, should be removed from the office. Now, all the five grounds in Section 45(1), on which the removal can be ordered, clearly indicate that the exercise of the power is to be only where the danger to the endowment is reasonably apprehended. The first is the persistent default in the submission of budgets, etc., the second is wilful disobedience of lawful orders; the third is malfeasance, misfeasance; the fourth is misappropriation; and the fifth is unsoundness of mind.

All justify, should they be established, the conclusion of the trustee's continuance to be dangerous to the endowment and his removal to be proper, as the trustee committing the acts, has forfeited his right to manage. Nor can it be argued that the exercise of the power is without any control; for, there is the right of appeal against the actions under Section 45(4). That apart, there is the further safeguard by the issuance of certiorari, against the action being vitiated by excess of jurisdiction, or want of jurisdiction, or by disregard of the fundamental principles of natural justice, or by error apparent on the face of the record.

We feel that the aforesaid writ and the general superintendence over Tribunals exercising quasi-judicial powers, which is vested in the High Court under Article 227, affords sufficient scrutiny by courts, and makes the actions authorised by Section 45 reasonable restrictions in the interests of the general public, for the purposes of Article 19(5). We, therefore, hold the challenge to the constitutionality of Section 45 not to be justified.

8. Corning to the other argument, it cannot be disputed that the proceedings before the Deputy Commissioner under Section 45, are quasi-judicial, and what is the correct description of the main inquiry, would be applicable to the ancillary proceedings as well. It follows that though no order under Article 226 at this stage, can be issued, so far as the framing of the charges against the writ petitioner and inquiry into them are concerned, because such orders are within the jurisdiction of the officer, the position as regards the order of suspension is different, and certiorari cannot be refused against the order, as the exercise of the jurisdiction there, is in disregard of the principles of natural justice.

One of these principles requires that Orders prejudicial to a party should be passed after hearing his grounds against such orders being passed, and the petitioner's complaint against his suspension under Section 45(3) is that (he power has been exercised without affording him any opportunity of showing cause against the proposed action. In the particular case, there is the lis, for the petitioner's case is that his act of renewing the lease is in the interest of the endowment, which case must be determined objectively after sifting the evidence in the case; and, even then the decision would be liable to be revised by another authority at the appellate stage.

Any interlocutory order in such a case, should not bring about what has to be done only after a thorough inquiry, and, in any case, the party concerned should be afforded the opportunity of meeting the ground, on which urgent action is necessitated. It is not necessary that the procedure before the authority, should be like that of a Court of law; but it is equally clear that it must not be in violation of principles of natural justice. It follows that action under Section 45(3) is bad, because it has been made in disregard of rules of natural' justice.

The learned Government Pleader has drawn our attention to two rulings, where action taken under Section 45(3) of the Act, has come for scrutiny before the High Courts. They are Mukundaraya v. State of Mysore, AIR 1960 Mysore 18 and AIR 1958 Andh Pra 319. He relies also on two unreported decisions of the Madras High Court, viz., Writ Petitions Nos. 192 of 1953 and 399 of 1958. After giving our best attention to the observations of die learned Judges in all the four cases, we do not find in them anything contrary to what has been held in University of Ceylon v. Fernando, (1960) All ER 631 where the Privy Council has quoted the following oassage from De Verteuil v. Knaggs, (1918) AC 557 at p. 560: (AIR 1918 PC 67 at p. 69), with approval:

'Their Lordships are of opinion that in making such an inquiry there is, apart from special circumstances, a duty of giving to any person against whom the complaint is made a fair opportunity to make any relevant statement which he may desire to bring forward and a fair opportunity to correct or controvert any relevant statement brought forward to his prejudice.'

We feel a trustee is entitled to such a fair opportunity of making relevant statements and of controverting the grounds, on which immediate action of his being suspended from his hereditary right of managing the trust, is contemplated. Such a notice admittedly has not been given, and, therefore, the order, wherein the writ petitioner had been directed to hand over immediate charge to the 3rd respondent must be vacated. In Courts, orders urgently required are issued with notice to the party concerned, of showing cause against such orders being made final and authorities vested with quasi-judicial powers, would do well to adopt 1 some similar procedure. The petitioner's learned advocate has drawn our attention to the explanations by the writ petitioner for granting the lease; and they deserve fair adjudication even before the orders in the proceedings under Section 45(3) are passed.

9. We would, therefore, allow this petition and quash the part of the order immediately suspending the petitioner pending the inquiry into the charges framed against him. The inquiry into the charges framed, would proceed, and nothing stated in this order, would prejudice what is Subjudice before the lower tribunal. The writ petition is thus partly allowed, and, having regard to the circumstances of the case, the parties should bear their own costs.