C P KUNHAMBU NAIR Vs. KUNNUNTARA VADAKKA VEETIL AMBU
LAWS(MAD)-1952-7-30
HIGH COURT OF MADRAS
Decided on July 17,1952

C.P.KUNHAMBU NAIR Appellant
VERSUS
KUNNUNTARA VADAKKA VEETIL AMBU Respondents

JUDGEMENT

Basheer Ahmed Sayeed, J. - (1.) Mr. M.K. Nambiar appearing for the petitioner is seeking to revise the order of the learned District Judge of South Kanara whereby he declared that the pending proceedings in O.P. No. 26 of 1951 stood automatically transferred to the appropriate court or authority and that they should be deemed to be pending before that court or authority by virtue of Section 103(3) and (k) of Act 19 of 1951, the New Hindu Religious Endowments Act.
(2.) O.P. No. 26 of 1951 was originally filed under Section 84(2), Hindu Religious Endowments Act, 2 of 1927 praying that the District Court might set aside the order of the Hindu Religious Endowments Board that the Vishnumoorthi temple of Cheemani village, Kasargod taluk was a private temple within the meaning of the Hindu Religious Endowments Act. When this petition was pending before the learned District Judge of South Kanara, the old Act was re-enacted as Act No. 19 of 1951. In the old Act, Section 9(3) defined court as meaning the District court. Under the new Act, which came into operation on the 29th September 1951, by a notification, Section 6(1) and (2) defined the court as the City Civil Court instead of the High Court and as sub-court instead of the District Court. The effect of this enactment is that instead of the District court, as in the previous Act, the Sub-Court became substituted for purpose of filing applications to set aside orders passed by the Hindu Religious Endowments Board. Similarly, instead of the High Court for purposes of proceedings ' within the City of Madras, the City Civil Court was substituted. Similarly under Section 103(j) instead of the Board the authority by or against whom any proceedings could be instituted in the court became the Commissioner of Religious Endowments instead of the Hindu Religious Endowments Board, as was the case under the old Act. The Explanation to Section 103(j) of the new Act provides for the continuation of the proceedings so far as the; High Court was concerned. Instead of the pending proceedings being continued in the High Court this provision states that they should be continued in the City Civil Court Therefore, while there is a specific provision that proceedings now pending before the High Court should be continued in the City Civil Court, there is no corresponding provision in the new Act governing pending proceedings in the mofussil courts, apart from the substitution of the Sub-court for the District Court, provided for by Section 6(6) (i).
(3.) Mr. Nambiar contends that in the absence of a specific provision on similar lines as the one contained in the-Explanation to Section 103(j), pending proceedings in the District Court cannot be transferred or cannot be deemed to have been automatically transferred to the Sub Court. There is no provision, according to him, In the whole of the new Act which authorises the District Judge to transfer these proceedings to the Sub-court. Simply because the District court had been specifically mentioned in the old Act, and in its place the Sub court has been specifically mentioned the general law, namely, the Civil Procedure Code also would not entitle the District court to transfer such proceedings to the Sub-court. The provision in the new Act 19 of 1951 which has been relied upon by the learned District Judge, namely, Section 103(j), only refers to the "continuation" of the pending proceedings by the "concerned authority". It states that instead of the Board, as was the case previously, under this Act, it should be the Commissioner. The learned counsel for the respondents seeking to support the interpretation put upon this provision by the learned District Judge would seek to import into the meaning of this provision that the continuation by the Commissioner in place of the Board also would mean continuation in the new court that has been substituted for the old court. A reading of the language of this Sub-clause (j)) of Section 103, in my opinion, does not warrant this extension of the meaning sought to be given to it by the learned District Judge or the learned counsel for the respondent in this court. That section has reference only to suits, applications or proceedings taken by or on behalf of or against the Board under the provisions of the said Act and ponding at the commencement of that Act and provides that they may be continued by or on behalf of or against the Commissioner subject to the provisions and in so far as they are not inconsistent with this Act. All that seems to have been intended and aimed at by this provision is only the substitution of the authority which is to continue the proceedings and that has been made the commissioner instead of the Board, It does not have any reference to the "forum" before which those proceedings have to be continued. It might be that it might have been the intention of the framers of this Act that the forum also would become substituted by this provision whereby it is provided that the pending proceedings shall be continued by the Commissioner instead of by the Board. But actual language used does not warrant any such interpretation so far as I could see. That intention does not appear to have been carried into effect by the language used. The learned counsel for the respondent would seek to emphasise upon 'the words "subject to the provisions of and in so far as they are not inconsistent with this Act", to mean that the forum in which the continuation should take place also gets automatically substituted according to the new definition provided in this court. I do not think that I can agree to this interpretation as I think it will be straining far too much the language of this Sub-clause (j) of Section 103 of the Act. As a matter of fact, while the explanation to Section 103 (j) provides that "all suits, and applications under the said Act in the High Court in respect-;of religious institutions within the presidency town and pending on the date of the . commencement of this Act, which would have been instituted in the Madras City Civil Court. if this Act had been in force at the time when such suit or .applications were instituted shall be continued in, and disposed of by the High Court, no such provision has been made in regard to the pending proceedings in the courts in the mofussil outside the presidency town the effect being that pending proceedings will have to be dealt with by the District court only. This seems to be an obvious omission on the part of the legislature and it is not for this court to go into the reasons or causes for such omission. When there is a specific language available, the language alone has to be construed and understood and in interpreting and construing the language it is not for the court to make up the lacuna that might have occurred in the process of enacting any legislation. This court is concerned only with express language found in any provision and not with any possible intention behind it which is not expressed. Filling up of any omission or making up any lacuna is the business of legislation and it is not open to the court to go outside the strict 'language that is found in the provision that it is called upon to interpretate and apply.;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.