# Shri Radeshyam Khare & Anr v. State of Madh11a Pradesh and - **Citation:** [1965] 3 S.C.R. 17 - **Court:** Supreme Court of India - **Decided:** 1965-02-10 - **Case number:** CIVIL APPEAL No. 560 OF 1964 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shri-radeshyam-khare-anr-v-state-of-madh11a-pradesh-and-3393 - **Pages:** 10 ## Headnote J 17 A SRI-LA.SRI SUBRAMANIA DESIKA GNANASAMBANDA PANDARASANNADHI B c D E F G B v. STATE OF MADRAS AND ANOTHER February 10, 1965 [P. B. GAJENDRAGADKAR, C J., M. HIDAYATULLAH, J. C. SHAH ANDS. M. S!KRI, JI.] Madras Hindu Religious and Charitable Endowments Act, 1951, [19281 18 :pv. 241. ·(•) [1923] 27 L.W. 33. A B c D E F Q B BUBRAMA.NIA v. STA.TE OF MADRAS (G.1jendrag:ulbr, 0. J.) 21 proceedings under the said Chapter, might "notify" the temple or endowment. l\nd on the publication of such notification, the administration of the temple or endowment would go under the control of the Board notwithstanding the schem·e which might have been framed already. On taking management of a notified temple or endowment, the Board was authorised to appoint an Executive Officer and: define his duties. In consequence, such Executive Officer would virtually displace the trustee and would function under the control of the Endowment Board. The result of the notification in substance would be that the previously existing scheme would be suspended, and the management would vest in the Board. Soon after this Act was passed, proceedings were commenced by the Board for the purpose of notifying the temple with which we are concerned in the present appeal, and the Kattalais attached thereto. The Trustees of the various Kattalais naturally opposed this step, but their objections were over-ruled, and on May 25, 1937, a notification was issued. To this notification we have already referred. In pursuance of this notification, an Executive Officer was appointed by the Board on July 12, 1937. On July 30, 193 7, the Board defined the powers of the Executive Officer and directed him to take charge !)nd be in possession of the temple and the various Kattalais attached thereto. As a result of this order, the · Executive Officer began to exercise all the powers and discharge all the functions of a trustee of a non-excepted temple, and that left very little powers in the hands of the trustees of the several Kattalais. The Pandarasannadhi of the Dharmapuram Mutt who was then the hereditary Trustee of the Rajan Kattalai instituted C.S. No. 20 of 1938 in the Madras High Court for a declaration that the said notification was illegal and for setting aside the orders issued by the Board in pursuance of the said notification. It appears that the suit did not proceed to a trial, because the· parties entered into a compromise. In substance, as a result of the compromise, the notification was maintained, but the possession of the Kattalai properties was restored to the Trustee who was to manage the same by a staff under his control. and had to keep accounts. Certain other provisions were made to safeguard the efficient management of the said trust. and the overall control and supervision of the Executive Officer was maintained. One of the clauses of the compromise, clause (k) expressly reserved to the Board liberty to re-define the powers . and duties as spedfied 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 to him to be heard in his defence. This compromise decree was passed on August 1, 1940, and since then, the administration of the Kattalai in question has been conducted in accordance w'th the terms of this decree. 22 , SUPREME COURT REPORTS [1965] 3 s.c.R. After the Constitution came into force on January 26, 1950, the Hindu Religious Endowments Act of 1927 was repealed and in its place Act XIX of 1951 was substituted. This latter Act came into force on September 30. 1951. Section 5 of this Act repealed the earlier Act of 1927. The Chapter relating to notification of temples and endowments was numbered as Chapter VI in the new Act. Section 64 of this new Act provided for the notification of a temple or a religious institution, and sub-s.(4) laid down that 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. This section had made provision for the notification of religious institutions after this new Act came into force. Section 103(c) dealt with cases where notifications had beert made under the previous enactment. That section provided that the notification published under s.65A, sub-s.(3) or sub-s.(5) of the said Act and in force immediately before the commencement of the new A B c Act would be deemed to be a notification published under s.64 and D would be in force for five years from ·the date of the commencement of the new Act (No. XIX of 1951). In 1956, another Amending Act (No. IX of 1956) was passed. Section 2 of this Amending Act substituted a new sub-section in the place of s.64(4). Under that provision, every notification published or deemed to be published under that section shall remain E 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. As a consequence, s.l 03(c) was also amended, and the words "and shall be in force for five years from the date of the commencement of this F Act" were omitted. The result of this amendment was that the notification issued or deemed to be issued under the relevant provisions ·of the new Act would remain in force for a period of five years; it can be cancelled even before the said period expired, or it can be continued after the expiry .of the said period from time G to time for such further period or periods as the Government may deem fit. We have already seen that the impugned notification has been issued under s.64(4) of Act XIX of 1951. That, broadly stated, is the background of the present dispute between the appellant and the respondent State of Madras. Two principal contentions were urged before the High Court H by the appellant in support of his plea that the impugned notification is invalid. It was argued that the trusteeship of. the Rajan Kattalai being hereditary in the head of the Dharmapuram Mutt, is a right of property under Art. l 9(i)(f) of the Constitution, and since s.64 of the Act empowers the respondent State to take away that right of property in an arbitrary and capricious mann~r. that provision is Constitutionally invalid. The second ground which was urged by the appellant was that the notification was issued without SUBRAMANIA v. STATE JF MADRAS (G.;jendrcgarlkJr, 0. J.) 23 A giving an opportunity· to the appellant to show cause why the earlier notification should not be extended, and that made the notification invalid. The High Court has rejected the first contention, and we are really not called upon to consider that finding of the High Court in the present appeal, because the arguinents urged before us covered a much narrower ground. In regard to the second B contention raised by the appellant. the High Court has found in favour of the appellant that the proceedings authorised to be taken · under s.64(4) are in the nature of quas'-judicial proceedings, and the order which can be passed under the said provision is a quasijudicial order; and so. the High Court conceded that before making such an order, it was necessary that the appellant should have been C given an opportunity to be heard, for that is the requirement of natural justice; but the High Court thought that this specific point had not been taken by the appellant in his writ petition; that is why it was not inclined to allow it. The High Court refused to uphold the said point for the other reason that the impugned notification would soon expire on September 30, 1961 and the GovernD men! would then have to consider whether it should be renewed or not. and the High Court thought that on that occasion, the Government would certainly hear the appellant before making up its mind on that issue. The judgment of the High Coiirt was delivered on August I I. 1961, and since the High Court thought that the impugned order can last only for a short period thereafter, it would E serve no purpose to issue a writ quashing the said order on the ground that the principles of natural justice had not been complied with before passing it. Mr. Viswanatha Sastri for the appellant coHtends that both the grounds given by the High Court in support of its refusal to issue a writ are plainly erroneous, and we are ~atisfied that Mr. Sastri is right. F Before dealing with these grounds, however, it is necessary to consider the argument urged by Mr. Raganathan Chetty on behalf of the respondent State that the High Court was in error in holding that the Order. which has been passed under s.64(4) is a quasi-judicial order and can be legitimately passed only after comG plying with the principles of natural justice. He argues that though the proceedings contemplated by s.63 and s.64(1), (2) and (3) are quasi-judicial proceedings, the position in regard to the Order which can be passed under s.64(4) is entirely different. He concedes that in making the first order notifying an institution under s.64(3), principles of natural justice have to be complied with; in fact, express provisions have been made in that behalf, but he argues H that the said principles do not apply where a notification validly issued under s.64(3) has merely to be cancelled or extended under s.64(4). Chapter VI of Act XIX of 1951 which consists of sections 63 co 69, deals with the notification "of religious i..;.stitutions. Section 63(1) in terms requires the issue of notice to show cause why a specific institution should not be notified. Sub-section (2) requires 24 SUPREME COURT 'REPORTS • [1965] 3 s.c.R. that the said notice sht H state the reasons for the action proposed, A and specify a reasonable time, not being less than one 'month from the date of the issue of the notice, for showing such. cause. Sub· section (3) allows objections to be filed by the trustee; and sub-s.(4) requires that such objections shall be in writing and shall reach the Commissioner before the period specified. Having provided for the issue of a notice arid for objections to be filed by the trustee, B s.64 deals with the consideration of the objections, if any, and notification of institution. S.64(2) requires an enquiry to be held by the Commissioner at which the validity of the objections would have to be examined. Section 64(3) authorises the Commissioner to make a report to the Government that in his opinion, the institu~ tio!! should be notified. Thereupon, the Government can issue the C notification in question. Thus, it is plain that the issue of a notification has to be preceded by an enquiry and the trustee in auestion is entitled to urge his objections against issue of such a notification; and so, there can be no doubt that these proceedings are quasi-judicial, and if a notification is issued under s.64(3) without complying with the requirements of the provisions of s.63 and s.64(1) and (2), D it would be invalid. Mr. Chetty, however, contends that the position under s.64(4) is entirely different. We have already quoted this provision. According to Mr, Chetty, the decision as to whether a notificati'on should be cancelled before the period of five years is over, E or continued from rime to time, is a purely administrative c]ecision. The Government is already in possession of the material relevant for the purpose of deciding the question. This material has been placed before the Government at time of the enquiry which is held by the Commissioner under s.64(2) before the initial notification is issued, and all that lhe Government has to do F on subsequent occasions is to consider whether the said notification should be cancelled or continued. Such a decision needs no further enquiry and cannot be characterised as quasi-judicial. That is how Mr. Chetty supports the validity of the impugned notification, though it has be~n issud without giving notice to the appellant. · · In support of this contention, he has relied upon the decision of this Court in Shri Radeshyam Khare & Anr. v. The State of Madhya Pradesh and Others.(') In that case, it was held that ss. 53A and 57 of the C.P. and Berar Municipali_ties Act, 1922, differ6 ed materially in their scope and effect, and that the nature of the orders which can be passed under the two respective sections was lJ not the same. That is why this Court found that whereas in taking action under s.53A the State Government was required• to act judicially, the same could not be said to be true about s.57. We do not see how this d·ecision can afford any assistance to Mr. Chetty in support of his argument that s.64(4) is entirely different ('l rrno9J s.c.R. i44o. SlJBRAMANIA v. STATE OF MADRAS (Gojenilragadkar, C.J.) 25 A in character from s.64(3). It ·is plain that just as while acting under s.64(3) the Government has ultimately to consider whether a case has been made out for the issue of a notification, so while acting under s.64(4), Government has to consider whether a case has been made out for cancelling the notification or for extending it, and on each occasion, where a decision has to B be taken under s.64(4), the process of reaching the decision is exactly similar to the process in reaching a decision under s.64(3). All relevant facts in regard to the management of the endowment must be taken into account, and· the question to be considered on each occasion would be whether or not supervision by the Executive Officer under the notification is requ;red in the interests of C public good. It is difficult to see how the Government can legitimately ~nd· satisfactorily consider the question as to whether the notification should be cancelled, unless it hears the party asking for such cancellation. Similarly, it is difficult to understand how Government can legitimately and reasonably decide to extend the notification, unless it gives an opportun'ty to the Trustee to show D cause why it should not be continued. One can imagine several circumstances which may arise after the issue of the first notification and which would help the Trustee to cl:.t;m that the notification should either be cancelled or should not be extended. The nature of the order which can be passed under s.64(4) and its effect on the rights of the trustee are exactly similar to the order E which can be passed under s.64(3). We are. therefore, satisfied that the High Court was right in holding that it was obligatory on the respondent State as a matter of natural justice to give ·not'ce to the appellant before the impugned notification was passed by it. That takes us to the consideration of the question as to F whether the two reasons given by the High Court in support of this decision are valid. The first reft$o'n, as we have already indicated. is that the High Court thought that the plea in question had not been raised by the appellant in his writ petition. This reason is no doubt, techn~cally right in the sense that this plea was not mentioned in the first affidavit filed by the appellant in G support of h;s petition; but in the affidavit-in-rejoinder filed by the appellant this plea has been expressly taken. This is not disputed by Mr. Chetty, and so, when the matter was. argued before the High Court, the respondents had full notice of the fact that one of the grounds on which the appellant challenged the validity of the impugned Order was that he had not been given a chance to B show cause why the said notification should not be issued. We are, therefore, satisfied that the High Court was in error in assuming that the ground in question had not been taken at any stage by the appellant before the matter was argued before the High Court. The second reason given by the High Court appears to be plainly erroneous. In assuming that the impugned Order would come to an end on September 30, 1961, the High Court appears to have ignored the fact that before it delivered its judgment, a 26 SUPREME COURT REPORTS [1965] 3 s.c.&. new Act had come into force (Madras Act XXII of 1959). This A Act came into operation on January l, 1960. Section 72(7) of this AC1.· provides that 1any notifidation published· under sub-s.(I) or sub-s. (3) of s. 64 of Act XIX of 1951 before the commencement of this Act shall be as valid as if such notification 'had been pubfahed under this Act. This provision has again been subsequently amended by Act XL of 1961, and the amended provision is reB trospectively brought into operation from January I. 1960. We do not propose to consider in this appeal the effect of these amendments, because it is enough for our purpose to state that as a result of the subsequent Act which had already come into force on the date when the H'gh Court delivere-d its . judgment, it is obvious that the impugned notification would not automatically C come to an end on September 30, 1961. This position is not disputed by Mr. Chetty and appears to be plain; so that the main reason which we;ghed with. the High Court in not issuing a writ in favour of the appellant that the impugned notification would remain in operation for a very short period after it delivered its judgment, is found to be erroneous; and the impugned notificaD tion would continue in operation without< the appellant getting an opportunity to show cause why it should not continue to be in operation. We are, therefore, satisfied that the High Court should have granted the prayer made by the appellant for the issue of an appropriate writ cancelling the impugned notification. Though the impugned notification has been issued in 1956 for live yel!fs, E its life gets statutorily extended, and the only way in which the appellant · -would be able to show cause why the said notification should not be extended in respect of his Kattalai is to quash the said notification. · In the result, we allow the appeal, set aside the order passed by the High Court, and direct that an appropriate writ or F order be issued quashing the notification issued by the respondent State on August 4, 1956. The appellant would be entitled to his costs throughout. · Appeal allowed.