- (1.) These are five petitions under Art. 32 of the Constitution by the heads of five Maths in the State of Orissa of which four know as Mahiparakash Math, Uttaraparswa Math, Dakshinaparswa Math and Radhakant Math are situated in Puri and the fifth known as Manapur in near Tirtol in Cuttack district. In all these petitions certain provisions of the Orissa Hindu Religious Endowments of the Orissa Hindu Religious Endowments Act 1951 (Orissa Act 2 of 1952) as amended by the Orissa Act 18 of 1954 are challenged as being unconstitutional and ultra vires. Since the questions raised are mostly common, all the petitions are dealt with by this single judgment.
(2.) These petitions have a background of previous history of legislation and litigation which it is necessary to set out in order that the questions raised may be properly appreciated. The first statutory interference by the Provincial Legislature with the management of Hindu religious endowments in Orissa was by the Orissa Hindu Religious Endowments Act, 1939 (Orissa Act 4 of 1939) which came into operation on 31-8-1939. This was modelled on a similar Act operating in the Province of Madras at the time. The validity of the Act as a whole as also of certain provisions thereof were challenged by the Mahants of the various Maths in Orissa, about 30 in number, by instituting a suit in the year 1940. The suit was on behalf of the individual Maths who figured a plaintiffs (including three of the present petitioners, viz., Mahants of Mahiparakash Math, Dakhinaparswa Math and Radhakanta Math) and also in a representative capacity under O. I., R. 8, Civil P. C. (Vide printed record of this Court in Case No. I of 1950). That suit was dismissed by the District Judge of Cuttack and came up in appeal to the High Court of Orissa. The High Court upheld the validity of the Act and of the various sections thereof by its judgment dated 13-9-1949, which is reported in Gadadhar Ramanuj Das v. Province of Orissa 1950 Orissa 47 (AIR V 37) (A). An appeal was filed therefrom to the Supreme Court in January, 1950, which was numbered as Case No. 1 of 1950 Jagannath (AIR V 41) (B). This appeal remained pending for over four years and came up for final hearing in February, 1954. During the period of pendency of the appeal the Orissa Legislature passed two further Acts relating to Hindu religious endowments. The first of them was Orissa Act 2 of 1952 which was an Act to "amend and consolidate the law relating to the administration and governance of Hindu religious institutions and endowments in the State of Orissa". and which on its coming into force was intended to repeal the pre-existing Orissa Act 4 of 1939. This Act became law on 16-2-1952, by the assent of the President. It did not, however, come into force at once on account of sub-s. (3) S. 1, therein which provided that the Act is to "come into force on such date as the State Government may, by notification, direct". No such notification was issued during the pendency of the appeal in the Supreme Court. This Act was, in fact, brought into force much later, i. e., only as from 1-1-1955, by a notification of the Government of Orissa dated 22-12-1954, published in the Orissa Gazette dated 31-12-1954. While thus the 1952 Act remained on the statute book without its coming into force, other independent statutory provisions amending the Act of 1939 were passed and brought into operation. The first of them was Orissa Ordinance 2 of 1953 which was promulgated by the Governor of Orissa on 16-5-1953. This was later superseded and substituted by Orissa Act 18 of 1953 which came into operation of 28-10-1953. By these two successive legislative measures, the Act of 1939 was amended on certain respects and it is the Act so amended that was in operation during the period from May, 1953 to March, 1954, falling within the later portion of the pendency of Case No. 1 of 1950 in the Supreme Court. Some time in 1953, subsequent to the month of May, the Commissioner of Hindu Religious Endowments, Orissa, appears to have initiated proceedings for the framing of schemes in respect of a number of Maths, and schemes were actually framed during this period as regards the four Maths, Mahiparakash, Uttaraparswa, Dakshinaparswa and Radhakanta comprised in Petitions Nos. 651 of 1954, 49, 46 and 51 of 1955, respectively. These schemes were brought into operation and the administration of some of these Maths was taken over by the Trustees under the schemes. Thereafter Mahants of three of the affected Maths, Mahiparakash, Uttaraparswa and Radhakanta, who are also petitioners before us, filed applications under Art. 226 before the High Court of Orissa challenging the validity of the schemes. Those application were dismissed by the High Court on 17-2-1954. Meanwhile the Mahant of Dakshinaparswa Math who was a petitioner in the High Court and also before us, filed along with another Mahant, a petition under Art. 32 of the Constitution to this Court on 23-12-1953, challenging the Act then in force as being in violation of their fundamental rights. This was petition No. 405 of 1953. This petition well as Case No. 1 of 1950, referred to above came up for hearing together, in this Court on the 9th, 10th and 11th February, 1954. Judgment of this Court therein was delivered on 16-3-1954, and is reported in 1954 SC 400 (AIR V 41) (B). As a result thereof, Ss. 38 and 39 of Orissa Act 4 of 1939 as amended in 1953, under which the scheme were framed were declared unconstitutional. Accordingly, the schemes became invalid and therefore the possession of such of the Maths which had been taken over under the schemes was restored to the Mahants. (It may mentioned in passing, in this context, that the judgment of this Court refers to Orissa Act 2 of 1952 as being the one in force at the time and whose provisions were under consideration by the Court. This is slip. The Act then in force was, as already stated, the Act of 1939 as amended in 1953. That this is a slip in the judgment is admitted before us. That does not, however, in any way detract from the reasoning and the binding character of the judgment, since as a fact what were really referred to were the sections of the 1939 Act as amended in 1953). Now, after the judgment of this Court was delivered in March 1954, the Orissa Legislature again intervened and passed another Act, Orissa Act 18 of 1954. This Act purported to amend not the 1939 Act which was by then in operation but the 1952 Act which had not by then came into force. Orissa Act 18 of 1954 received the assent of the President on 2-12-1954, and came into force at once and therefore Orissa Act 2 of 1952 became pro tanto amended and modified. By that date the 1952 Act so amended was awaiting the issue of notification under S. 1 (3) thereof for being brought into force. This notification, as already stated, was ultimately issued on 22-12-1954, bringing Orissa Act 2 of 1952 as amended by Act 18 of 1954 into force from 1-1-1955, and thereby repealing Orissa Act 4 of 1939 as amended in 1953. The first of the petitions before us relating to Mahiparakash Math was filed in this Court, anticipating this notification, while the other four were filed after the notification was issued. As already stated, all these petitions challenged the validity of various section of Act 2 of 1952 as amended in 1954 (hereinafter referred to as the present Act.) The challenge is entirely based upon the principles laid down by this Court in 1954 SC 400 (AIR V 41) (B). The above is the history of the relevant legislation and the connected parallel litigation.
(3.) The main attack is in respect of S. s. 42 and 79-A of the present Act relating to the schemes for religious of the kind with which we are concerned in these petitions. There can be no doubt that the two sections apply to these Maths. The phrase "religious institution" occurring in S. 42 has been defined as meaning (also) "a math and endowments attached thereto". A Math is "an institution succession to the headship of which devolves in accordance with the directions of the founder or is regulated by customs" and a hereditary trustee is a "a trustee of an institution succession to whose office devolves by custom or in specifically provided for by the founder". A Math is therefore a religious institution presided over or managed by a hereditary trustee so as to render S. 42(1) (b) applicable. To appreciate the ground of attack it is necessary to trace the changes in the provisions relating to the framing of schemes for such institutions in the successive legislative measures. In the Act as it stood in 1939 the provisions in this behalf are Ss. 38, 39, 40. Since the attack is mainly as regards the procedure for the framing of the scheme, it is sufficient to notice what the gist of these three provisions is in so far as it relates to the procedure for an enquiry to frame a scheme. Under these three sections the enquiry is to be held by the Commissioner for Endowments appointed under the Act. For this purpose he is to function jointly with one or more persons in the service of the Crown appointed by the Provincial Government in this behalf. The enquiry has to be conducted "in such manner as may be prescribed". In making the enquiry the Commissioner and the person or persons associated with him therein are to consult the trustee and the person having interest. After the scheme is settled and the order determining the scheme is published in the prescribed manner the trustee or any person having interest may, within six months of the date of such publication, institute, a suit in the Court to modify or set aside such order. The order settling a scheme is final and binding on the trustee and all persons having interest, subject to the result of the suit. If any, as above mentioned. Of course, the result of the suit itself would, under the general law, be subject to further appeal under the Civil Procedure Code in the ordinary way.;