# SRI SADASIB PRAKASH BRAHMACHARI v. THE STATE OF ORISSA

- **Citation:** [1956] 1 S.C.R. 43
- **Court:** Supreme Court of India
- **Decided:** 1954-03-16
- **Bench:** Vivian Bose, Jagannadhadas, B. P. Sinha, J A.Fer Imam, Chandrasekhara Aiyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sri-sadasib-prakash-brahmachari-v-the-state-of-orissa-1318
- **Pages:** 19

## Headnote

43
Constitution of India,· Art. 19(1)( f )-Orissa Hindu Religious
Endowments Act, 1951 as amended by Orissa Act XVIII of 1954Sa. 4t(l)(b), 42(7), 44(2) ands. 79(A)-Whether ultra vires the Constitution.
Sections 38 and 39 of the Orissa Hindu Religious Endowments
Act, 1939 (Orissa Act IV of 1939) as amended by Orissa Act XVIII
of 1953 were declared unconstitutional and void by the Supreme
Court in Mahant Sri J agannath Ramanuj Das v. The State of Orissa
([1954] S.C.R. 1046) on the ground that legislation in so far as it
authorised the framing of a scheme by the Commissioner along with
his associates and declared such determination as final without any
scope for correction thereof by judicial intervention was an unreasonable restriction on the right of the head of the Math as respects
his interest in the Math which is a right to hold property within the
meaning of Art. 19(1)(£) of the Constitution.
After the judgment dated 16th March 1954 delivered by the
Supreme Court in the case of Mahant Sri Ja.gannath Ramamtj Das
v. The State of Orissa, ([1954] S.C.R. 1046) the Orissa Legislature
passed the Orissa Act XVIII of 1954 purporting to amend not the
1939 Act which was then in operation but the Orissa Act II of 195g
which bad not then come into force.
The Orissa Act XVIII of 1954 received the assent of the President on the gnd December 1954 and came into force at once and
thus the Orissa Act II of 1952 became pro tanto amended and modified.
The 1952 Act so amended came into force from the 1st Janu-
~ 1955 by virtue of a notification dated 22nd December 1954
issued under the provisions of s. 1(3) thereof which provided that .
the Act was to come into force on such date as the State Govern·
ment may by notification provide.
The five petitions under Art. 32 of the Constitution in the pre·
sent case challenged the validity of various sections of the Orissa
Act II of 1952 as amended by Act XVIII of 1954 on the principles
laid down in the case of Mahant Sri J agannath Ramanuj Das v,
The State of Orissa, ([1954] S.C.R. 1046).
Held, that ss. 42(1)(b), 42(7), 44(2) as well as s. 79(A) of Orlssa
Hindu Religious Endowments Act, 1951 (Orissa A~t II of 1952) as
amended by Orissa Act XVIII of 1954 are not unconstitutional and
1956
January 20
44
SUPREME COURT REPORTS
[1956]
1956
ultra vires and the contention that the provisions of ss. 42 and 44
of the present Act to the effect (1) that a scheme can he framed by
Sri Sadasib
the Commissioner alone on a report of the Assistant Commissioner
Prakash
on such inquiry as he thinks fit and not by the Commissioner in
Brahmachari
association with one or more Government Officers to be appointed
v.
for the purpose by the Government (2) that there is no right of suit
The State of Orissa for challenging the validity or the correctness of the scheme framed
ht the Commissioner but there is only an appeal to the High Court,
still continue to be unreasonable restrictions on the right of Matbadipathi as in the case of Mahant Sri Jagannath Ramanuj Das v.
The State of Orissa [(1954) S.C.R. 1046] is without substance.
In the initial stage of the framing of the scheme under the provisions of the present Act there is first of all something in the nature of a preliminary enquiry by a judicial officer of the rank of a
Munsif and this is followed by a regular and full enquiry before the
Commissioner who is of the rank of a Subordinate Judge.
The enquiry 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 enquiry before the Commissioner might well have
been of the nature of an executive enquiry by an executive officer,
the enquiry under the present Act is by itee!f in the nature of a
judicial enquiry by judicial officers followed up by a right of regular
appeal to the High Court.
A scheme f

## Text

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4.
. -
S.C.R.
SUPREME COURT REPORTS
SRI SADASIB PRAKASH BRAHMACHARI
v.
THE STATE OF ORISSA
(with connected petitions)
[VIVIAN BOSE, JAGANNADHADAS, B. P. SINHA,
J A.FER IMAM and CHANDRASEKHARA AIYAR, J J.]
43
Constitution of India,· Art. 19(1)( f )-Orissa Hindu Religious
Endowments Act, 1951 as amended by Orissa Act XVIII of 1954Sa. 4t(l)(b), 42(7), 44(2) ands. 79(A)-Whether ultra vires the Constitution.
Sections 38 and 39 of the Orissa Hindu Religious Endowments
Act, 1939 (Orissa Act IV of 1939) as amended by Orissa Act XVIII
of 1953 were declared unconstitutional and void by the Supreme
Court in Mahant Sri J agannath Ramanuj Das v. The State of Orissa
([1954] S.C.R. 1046) on the ground that legislation in so far as it
authorised the framing of a scheme by the Commissioner along with
his associates and declared such determination as final without any
scope for correction thereof by judicial intervention was an unreasonable restriction on the right of the head of the Math as respects
his interest in the Math which is a right to hold property within the
meaning of Art. 19(1)(£) of the Constitution.
After the judgment dated 16th March 1954 delivered by the
Supreme Court in the case of Mahant Sri Ja.gannath Ramamtj Das
v. The State of Orissa, ([1954] S.C.R. 1046) the Orissa Legislature
passed the Orissa Act XVIII of 1954 purporting to amend not the
1939 Act which was then in operation but the Orissa Act II of 195g
which bad not then come into force.
The Orissa Act XVIII of 1954 received the assent of the President on the gnd December 1954 and came into force at once and
thus the Orissa Act II of 1952 became pro tanto amended and modified.
The 1952 Act so amended came into force from the 1st Janu-
~ 1955 by virtue of a notification dated 22nd December 1954
issued under the provisions of s. 1(3) thereof which provided that .
the Act was to come into force on such date as the State Govern·
ment may by notification provide.
The five petitions under Art. 32 of the Constitution in the pre·
sent case challenged the validity of various sections of the Orissa
Act II of 1952 as amended by Act XVIII of 1954 on the principles
laid down in the case of Mahant Sri J agannath Ramanuj Das v,
The State of Orissa, ([1954] S.C.R. 1046).
Held, that ss. 42(1)(b), 42(7), 44(2) as well as s. 79(A) of Orlssa
Hindu Religious Endowments Act, 1951 (Orissa A~t II of 1952) as
amended by Orissa Act XVIII of 1954 are not unconstitutional and
1956
January 20
44
SUPREME COURT REPORTS
[1956]
1956
ultra vires and the contention that the provisions of ss. 42 and 44
of the present Act to the effect (1) that a scheme can he framed by
Sri Sadasib
the Commissioner alone on a report of the Assistant Commissioner
Prakash
on such inquiry as he thinks fit and not by the Commissioner in
Brahmachari
association with one or more Government Officers to be appointed
v.
for the purpose by the Government (2) that there is no right of suit
The State of Orissa for challenging the validity or the correctness of the scheme framed
ht the Commissioner but there is only an appeal to the High Court,
still continue to be unreasonable restrictions on the right of Matbadipathi as in the case of Mahant Sri Jagannath Ramanuj Das v.
The State of Orissa [(1954) S.C.R. 1046] is without substance.
In the initial stage of the framing of the scheme under the provisions of the present Act there is first of all something in the nature of a preliminary enquiry by a judicial officer of the rank of a
Munsif and this is followed by a regular and full enquiry before the
Commissioner who is of the rank of a Subordinate Judge.
The enquiry 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 enquiry before the Commissioner might well have
been of the nature of an executive enquiry by an executive officer,
the enquiry under the present Act is by itee!f in the nature of a
judicial enquiry by judicial officers followed up by a right of regular
appeal to the High Court.
A scheme framed with reference to such
a. procedure cannot ipso facto be pronounced to be in tbe nature of
an unreasonable restriction on the rights of the Mabant.
The legis·
latnre might well have thought that instead of making the enquiry before the Commissioner more or less in the nature of a preli·
minary executive enquiry to be followed up by the affected l\fahant
by a regular ... suit in the Civil Court, it is much more satisfactory
and in the public interests, to vest the enquiry before the Commis·
sioner himself with the stamp of greater Seriousness and effective·
ness and to assimilate the same to a regular enquiry by the judicial
officer according to judicial procedure and then to provide a right of
direct appeal to the High Court.
The right of appeal to the High Court is given in very wide
a.nd genera.I terms because the appeal can· be both on facts and on
law.
Mtihant Sri Gadadhar Ramanuj Das v. The Province of Orissa,
(I.L.R [1949] Cuttack 656), Mahant Sri Jagannath Ramanuj Das v.
The State of Orissa ([1954] S.C.R. 1046) and Commissioner; Hindu
Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar
of Sri Shirur Matth, ([1954) S.C.R. 1005], referred to.
ORIGINAL JURISDICTION: Petitions Nos. 651 of
1954 and 39, 46, 5l and 176 of 1955.
'
- -
--
f
-
' '
)
-
S.C.R.
SUPREME COURT REPORTS
45
Under Article 32 of the Constitution of India for
1956
the enforcement of fundamental rights.
Sri Sadasib
S. P. Sinha (S. D. Sekhari, with him), for the
Prakash
petitioner in Petition No. 651 of 1954.
Brahmachari
v.
S. P. Sinha (B. K. Saran and M. M. Sinha, with The State of Orissa
him), for the petitioner in Petition No. 39 of 1955.
B. K. Saran and M. M. Sinha, for the petitioner
in Petition No. 46 of 1955.
S. D. Sekhari, for the petitioner in Petition
No. 51 of 1955.
R. Patnaik, for the petitioner in Petition No. 176
of 1955.
M. C. Setalvad, Attorney-General of India (R. Gana- 1
pathy Iyer and P. G. Gokhale, with him) for respondents in all the Petitions.
1956. January 20. The Judgment of the Court
was delivered by
JAGANNADHADAS J.-These are five petitions under
article 32 of the Constitution by the heads of five
Maths in the State of Orissa of which four known as
Mahiparakash Math, Uttaraparswa Math, Dakshinaparswa Math and Radhakant Math are situated in
Puri and the fifth known as Manapur Math is near
Tirtol in Cuttack district. In all these petitions
certain provisions of the Orissa Hindu Religious
Endowments Act, 1951 (Orissa Act II of 1952) as
amended by Orissa Act XVIII 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.
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 IV of 1939) which came into operation
46
SUPREME COURT REPORTS
[1956)
1956
on the 31st August, 1939. This was modelled on a
Sri Sadasib
similar Act operating in the Province of Madras at
Prakash
the time. The validity of the Act as a whole as also
Brahmaahari
of certain provisions thereof were challenged by the
v.
Mahan ts of the various Maths in Orissa, about 30 in
Tho State of Orissa number, by instituting a suit in the year 1940. The
-
suit was on behalf of the individual Maths who
Jagannadhadas J, fi
d
J
f
gure as p aintiffs (including three o the present
petitioners, viz. Mahants of Mahiparakash Math,
Dakshinaparswa Math and Radhakanta Math) and
also in a representative capacity under Order I, rule
8 of the Civil Procedure Code.
(Vide printed record
of this Court in Case No. 1 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 the
13th September, 1949, which is reported in Mahant Sri
Gadadhar Ramanuj Das v. The Province of Orissa(1).
An appeal was filed therefrom to the Supreme Court
in January, 1950, which was numbered as Case
No. 1 of 1950. 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 II 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 IV of 1939.
This
Act became law on the 16th February, 1952, by the
assent of the President.
It did not however come
into force at once on account of sub-section (3) of
section I 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 the 1st Janu-
(1) I.L.R. (19491 Cuttack 61i6.
-
. -
I
-
.i.
S.C.R.
SUPREME COURT REPORTS
47
ary, 1955, by a notification of the Govern~ent ?f
Orissa dated the 22nd December, 1954, published m
1956
Sri Sadasib
the Orissa Gazette dated the 31st December, 1954.
Prakash
While thus the 1952 Act remained on the statute
Bralimachari
book without its coming into force, other indepenv.
.
dent statutory provisions amending the Act of 1939 The State 01 Orissa
were passed and brought into operation. The first of J
-;;; a 1
them was Orissa Ordinance No. II of 1953 which was aganna ia "s •
promulgated by the Governoii of Orissa on the 16th
May, 1953. This was later superseded and substituted
by Orissa Act XVIII of 1953 which came into operation on the 28th October, 1953.
By these two successive Jegislative measures, the Act of 1939 was
amended in 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. 1of1950in
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.
651of1954, 49, 46 and 51of1955, 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 article
226 before the High Court of Orissa challenging the
validity of the schemes. Those applications were dismissed by the High Court on the 17th February, ·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
article 32 of the Constitution to this Court on the
23rd December, 1953, challenging the Act then in
force as being in violation of their fundamental rights.
This was Petition No. 405 of 1953.
This petition as
48
SUPREME COURT REPORTS
[1956)
1956
well as Case No. 1 of 1950, referred to above, came
Sri Sadasib
up for hearing, together, in this Court on the 9th, I 0th
Prakash
and 11th February, 1954. Judgment of this Court
Brahmachari
therein was delivered on the 16th March, 1954, and is
v.
reported in Mahant Sri J agannath Ramanuj Das v. The
The State o/Orissa State of Orissa('). As a result thereof, sections 38 and
-
39 of Orissa Act IV of 1939 as amended in 1953, under
JagannadhadasJ, which the schemes were framed were declared unconstitutional. Accordihgly, 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 be mentioned in
passing, in this context, that the judgment of this
Court refers to Orissa Act II of 1952 as being the one
in force at the time and whose provisions were under
consideration by the Court. This is a 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 A{)t XVIII 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 come
into force. Orissa Act XVIII of 1954 received the
assent of the President on the 2nd December, 1954;
and came into force at once and therefore Orissa Act
II of 1952 became pro tanto amended and modified.
By that date the 1952 Act so amended was awaiting
the issue of notification under section 1(3) thereof for
being brought into force. This notification, as already
stated, was ultimately issued on the 22nd December,
1954, bringing Orissa Act II of 1952 as amended by
Act XVIII of 1954 into force from the 1st January,
1955, and thereby repealing Orissa Act IV of 1939 as
amended in 1953. The first of the petitions before us
relating to Mahiparakash Math was filed in this
(!) [1954] S.C R. !046
. -
... -
S.C.R.
SUPREME COURT REPORTS
49
Court, anticipating this notification, while the other
7956
four were filed after the notification was issued. As
Sri Sadasib
already stated, all these petitions challenge the
Prakash
validity of various sections of Act II of 1952 as
Brahmachari
amended in 1954 (hereinafter referred to as the
v.
- ,,
present Act). The challenge is entirely based upon the Tile State of Orissa
principles laid down bv this Court in Mahant Sri J
-;;;: a 1
Jagannath Rarnanuj Das;,., The State of Orissa(1). The aganna
a as •
above is the history of the relevant legislation and
the connected parallel litigation.
The main attack is in respect of sections 42 and
79-A of the present Act relating to the schemes for
religious institutions 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 section 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 directicins of
the founder or is regulated by custom" and a hereditary trustee is "a trustee of an institution succession to whose office devolves ....
.... by custom
or is 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
section 42(l)(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 i11 this
.. ,:..
behalf are sections 38, 39 and 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
(1) [1954] S.C.R. 1046.
7
50
SUPREME COURT REPORTS
[1956]
1956
this behalf. The enquiry has to be conducted "in
such manner as may be prescribed''. In making the
S1·i Sat!asib
Prakash
enquiry the Commissioner and the person or persons
Brailmacharl
associated with him therein are to consult the trustee
v.
and the persons having interest. After the scheme is
The Stat' of Orissa settled and the order determining the scheme is
' -
-
published in the prescribed manner the trustee or any
JagauuadlladasJ. 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 sett.ling
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.
Changes were made in these provisions in 1953 first
by Orissa Ordinance II of 1953 and then by Orissa
Act XVIII of 1953 as already stated. The modification i~ that sub-section (4) of section 39 which provided for a right of suit, by the trustee or the person
interested, in the regular civil court (with the concomitant further appeals to higher courts) was deleted
and the following was substituted as sub-section (4)
of section 39;
"Every order under this section shall be published
in the · prescribed manner and the order so passed
shall be final and binding on the trustee and all persons having interest''.
As a consequence thereof section 40 of the 1939 Act,
which stated that "subject to the result of the suit
the order settling a scheme is final", was omitted.
,... •
The result of these two changes was that once the
Commissioner with the assistance of one or more
Government officers who were to be specially. nominated, settled a scheme after making the prescribed
enquiry, that order was not open to any further question or correction in the ordinary courts. It was at
this stage that the validity of the provisions relating
to the framing of a scheme came up for consideration before this Court in March, 1954. This Court
held that the legislation in so far as it authorised the
- >·
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SUPREME COURT REPORTS
51
framing of a scheme by the Commissioner along with
7956
his associates and declared such determination as
Sri Sadasib
final without any scope for correction thereof by
Prakash
judicial intervention, was an unreasonable restriction
BrahmacliMi
on the right of the head of the Math with reference
v.
to his interest in the Math. Accordingly sections 38 The State of Orissa
and 39 of the Act then in force were struck down as
-
t "t t"
l
d •
l"d Th
t
• ·
JagannadhadasJ.
uncons i u 10na an mva i
.
e presen prov1s10ns
which are the result of a later amendment are contained in sections 42 and 44 of the present Act and
are substantially different.
The relevant portions
thereof are as follows:
"42.
(1) Whenever there is reason to believe
that in the interest of the proper administration of
religious institution a scheme may be settled for it,
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, the
Assistant Commissioner or the Commissioner, as the
case may be, shall proceed to frame a scheme in the
manners hereinafter provided-
( a) ........................... .
(b) in the case of a religious institution presided over or managed by a hereditary trustee, the
Assistant Commissioner shall make such encfuiry as
he thinks fit and submit his report to the Commissioner who shall hold an enquiry in the manner prescribed and so far as may be, in accordance with the
provisions of the Code of Civil Procedure, 1908, relating to the trial. of suits and if he is satisfied that in the
interests of the proper administration of such institution a scheme of administration should be settled,
he shall consult in the prescribed manner the trustee
and the persons having interest and by order set.tie a
scheme of administration for the institution.
(7) Every order of.. .............. the Commissioner
sE)ttling a scheme under this section shall, subject to
the provisions of section 44, be binding on the trustee,
the Executive Officer and all persons having interest.
44.
(1) ............................ .
52
SUPREME COURT REPORTS
[1956]
t9s6
(2) Any party aggrieved by the order of the
Sri Sadasib
Commissioner under sub-section (I) of section 42 may
Prakash
appeal to the High Court within thirty days from the
Brahmachari
date of the order or publication thereof as the case
v.
may be".
The State ofOrissa
The effect of these provisions of the present Act is
JagannadhadasJ. (I) that a scheme can be framed by the Commissiouer
alone on a report of the Assistant Commissioner on
such enquiry as he thinks fit and not by the Commissioner in association with one or more Government
officers to be appointed for the purpose by the Government, (2) that there is no right of suit for challenging the validity or the correctness of the scheme
framed by the Commissioner but there is only an
appeal to the High Court direct. It is.urged that
these provisions still continue to be unreasonable
restrictions on the rights of the Mathadipathi and
are accordingly ultra vires and unconstitutional. In
the case reported in the Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha
Swamiarof Sri Shirur Mutth(') the interest of Mathadipathi in the Math has been recognised as property falling within the scope of article 19(I)(f) of the Constitution. It was recognised that the ingredients, of office
and property, of duties and personal interest, are
blended> together in the rights of a Mahant and that
the Mahant has the right to enjoy the property or
the beneficial interest so long as he is entitled to hold
his office. It was recognised that the beneficial interest which the Mahant enjoys is appurtenant to his
duties and that as he is in charge of a public institution, reasonable restrictions can always be placed
upon his rights in the interests of the public. It was
however held therein that provisions for the framing
of a scheme which by its terms operate by way of
unreasonable restriction would be unconstitutional
and invalid. It is this principle that was applied in
the next decision of this Court relating to Orissa
Maths in Mahant SriJagannath Ramanuj Das v. The
State of Orissa(").
There, the validity of the then
provisions of the Act, i.e., of sections 38 and 39 of
(1) [1954) S.C.R. 1005.
12) [1954] S.C.R. 1046.
.\. -
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SUPREME COURT REPORTS
53
Orissa Act IV of 1939 as amended in 1953 was ad1956
judged in the following terms:
Sri Sadasib
"Sections 38 and 39 relate to the framing of a
Prakash
scheme.
The scheme can certainly be settled to enBrahmachari
sure due administration of the endowed property
v.
.
but the objection seems to be that the Act provides for The Stat• o/Orissa
the framing of a scheme not by a civil court or under JagannadhadasJ.
its supervision but by the Commissioner, who is a
mere administrative or executive officer. There is
also no provision for appeal against his order to the
court ............ We think that the settling of a scheme in
regard to a religious institution by an executive officer
without the intervention of any judicial tribunal
amounts to an unreasonable restriction upon theright
of property of the superior of the religious institution
which is blended with his office. Sections 38 and 39
of the Act must, therefore, be held to be invalid".
It is urged that though the obvious purpose of the
amending Act of 1954 passed after this decision by
the Supreme Court, was to remedy the defect above
pointed out by providing for a right of appeal direct
to the High Court from the determination of the Commissioner settling the scheme, the present provisions
still continue to be unreasonable restrictions on the
right of property of the Mahant. It is further urged
that the initial decision in a scheme-proceeding is
still on the basis of an executive enquiry by an executive officer and that in any case a direct appeal to
the High Court as against the Commissioner's order
cannot be as adequate a safeguard regarding the
rights of the Mahan ts, as a suit and a right of appeal
therefrom in the ordinary course to the higher courts
would be. It is undoubtedly true that from a litigant's
point of view an appeal to the High Court from the
Commissioner's order is not the same as, an independent right of suit and an appeal to the higher courts
from the result of that suit.
But in order to judge
whether the provisions in the present Act operate by
way of unreasonable restriction for constitutional
purposes what is to be seen is whether the person
affected gets a reasonable chance of presenting his
entire case before the original tribunal which has to
54
SUPREME COURT REPORTS
[1956]
determine judicially the questions raised and whether
he has a regular appeal to the ordinarily constituted
Sri Sadasib
Prakash
court or courts to correct the errors, if any, of the
1956
Brahmachari
tribunal of first instance. For that purpose it is relev.
vant to notice that in the present Act, the CommisThe State 01 Orissa sioner of Endowments .has, by virtue of section 4 there-
;
dh d
I of, to be a member of the Judicial Service (of the State)
aganna
a as .
.
not bemg below the rank of a Subordinate Judge,
while under section 7 of Act IV of 1939 a Commissioner of Endowments could be a person of either the
judicial or· the executive service and that even where
a member of the judicial service is appointed he may
be a person below the rank of a Subordinate Judge.
Another important difference has also to be noticed,
viz., that while under section 38 of the previous Act
the enquiry has to be conducted "in such manner as
may be prescribed" which means as prescribed by the
Provincial Government by rules made under the Act
and hence changeable by the Government, under the
present Act, section 42(1) (b) specifically enjoins that
"the Commissioner shall hold an enquiry in the
manner prescribed and so far as may be in accordance
with the provisions of the Code of Civil Procedure
relating to the trial of suits". It may also be noticed
that before the Commissioner starts his enquiry it is
expected that the Assistant Commissioner, who, by
v'irtue of section 5(2), is to be a person holding a
judicial office not lower in rank than that of a Munsif,
is to make such enquiry as he thinks fit and submit
his report. Thus in the initial stage of the framing of
the scheme under the provisions of the present Act
there is first of all something in the nature of a preliminary enquiry by a judicial officer of the rank of a
Munsif and this is followed by a regular and full enquiry before the Commissioner who is of the rank of
a Subordinate Judge. The enquiry 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 enquiry before the Commissioner might well
' -
--
"' -
_,
S.C.R.
SUPREME COURT REPORTS
55
have been of the nature of an executive enquiry by
1956
an executive officer, the enquiry under the present
Sri Sadasib
Act is by itself in the nature of a judicial enquiry by
Prakash
judicial officers followed up by a right of regular
Brahmachari
appeal to the High Court. A schellle framed with
v.
reference to such a procedure cannot ipso facto be The State 01 Orissa
pr.on~mnced tho b~ 1h'n thef hnatMurehofut nrTeahso
1
na~1
1
e tres- Jagann:;;:adasJ.
trict10n on t e rig ts o t e
a an .
e eg1s a ure
.
might well have thought that, instead of mak'.ing
the enquiry before the Commissioner more or less in
the nature of a preliminary executive enquiry to be
followed up by the affected Mahant by way of a
regular suit in the Civil Court, it is much more satisfactory and in the public interests, to impress the enquiry before the Commissioner himself with the stamp
of greater seriousness and effectiveness and to assimilate the same to a regular enquiry by the judicial
officer according to judicial procedure and then to
provide a right of direct appeal to the High Court ..
It has been strongly urged that a mere right to
appeal to the High Court would virtually be in the
nature of a limited appeal confined to challenge only
on certain basic matters and probably limited to
questions of law.
We can find no warrant for any
such apprehension. 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 sche:rμe 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.
Two other minor provisions in this connection
have been brought to our notice and relied upon as
indicating unreasonable restriction on the rights.
One is that while under the 1939 Act the period of
limitation for a right of suit was six months, the
period allowed for an appeal· under the present Act
is only 30 days. Another is that under section 74(3)
the operation of the order of the Commissioner is not
to be stayed pending the disposal of the appeal. It
56
SUPREME COURT REPORTS
[1956]
1956
has been urged that these provisions operate very
harshly against the Mahant affected by a scheme
Sri Sadasib
Prakash
when framed. It is pointed out that as the result of
Brahmachari
a scheme being put into operation immediately, the
v.
l\fahant may be deprived of the effective possession
The State of Orissa of the Math and hence of the wherewithal to file an
·-
appeal within the very short time that is allowed, as
Jagamia~hadasJ. also of the resources to conduct the appeal in tbe
High Court or to maintain himself during its pendency
which may take years. There is not much force in
this contention. In so far as the question of filing
of an appeal is concerned, there should be no difficulty since the provisions relating to appeals in forma
pauperis would be applicable and can be availed of if
the circumstances call for it. In so far as any situation may arise which may call for financial facilities
for the conducting of the appeal or for interim maintenance, the learned Attorney-General suggests that
the appellate Court would have inherent power and
discretion to give appropriate directions for supply
of funds out of the trust estate and that, in any view,
such power and discretion have to be implied in the
provision for an appeal so that the said right of
appeal may not become illusory. Having regard to
the suggestion thus put forwa~d, which we accept,
we cannot hold that the provision in section 74(3)
that the operation of the order of the Commissioner
framing a scheme is not to be stayed pending the
disposal of the appeal, brings about an unreasonable
restriction.
In this view we think that the incidental provisions above referred to· do not in any
way detract from the reasonableness of the main
provisions.
In our opinion, therefore, the provisions in the present Act of 1952 as amended in
1954, relating to the framing of schemes are not
open to any of the constitutional objections raised;
and are valid.
The next point that has been urged, depends on
the fact that in four of the petitions before us relating to the Maths of llfahiparakash, Uttaraparswa,
Dakshinaparswa and Radhakanta, schemes were in
fact framed in the year 1953 under the provisions of
. ' --
-1
S.C.R.
SUPREME COURT REPORTS
57
Orissa Act IV of 1939 as amended in 1953. It may
7956
be recalled that these provisions were held invalid
Sri Sadasib
by the decision of this Court in March, 1954,
Prakash
above referred to. It must therefore be taken that
Brahmachart
these schemes were void as the law then stood. It
v.
is with reference to that situation that the Orissa The State of Orissa
Legislature by an amendment in 1954 of the 1952
-
Act introduced section 79-A into this Act which runs JagannadhadasJ.
as follows:
"Notwithstanding anything contained in any of
the other provisions of this Act or in any judgment,
decree or order of any court all schemes purporting
to have been settled in pursuance of sections 38 and
39 of the Orissa Hindu Religious Endowments Act,
1939, after the commencement of the Orissa Hindu
Religious Endowments (Amendment) Ordinance,
1953, and before the commencement of this Act shall
be deemed to have been settled under the provisions
of this Act and any person aggrieved by any such
scheme may within sixty days from the date of commencement of this Act prefer an appeal to the High
Court and such appeal shall be dealt with and disposed of in the same manner as appeals provided for
under sub-section (2) of section 44".
This purports to revive the schemes which were pronounced to be invalid by the judgment of this Court
and attempts to remove the defect noticed in the
judgment of this Court by providing for a regular
appeal to the High Court against that very scheme
within 60 days from the date of the commencement
of the Act.
It may be noticed that the schemes so
revived are only those which were settled after the
commencement of Orissa Hindu Religious Endowments (Amendment) Ordinance, 1953, and before the
commencement of the 1952 Act, i.e., between 16th
May, 1953 to 31st December, 1954, (hereinafter referred to as the specified period).
This was exactly
the period within which the amendment of l939 Act
made in 1953 was in force, abolishing the right of
suit and making the scheme as determined by the
Commissioner final and conclusive.
Section 79-A in
terms purports to revive the invalid scheme notwithe
58
SUPREME COURT REPORTS
[1956]
1956
standing any judgment, decree or order of any court,
which means that though a court may have pro5~,!~~;;,ib
nolinced the scheme as voif\ still that is deemed to be
Brahmachari
alive.
It has been suggested that this is directly
v.
flouting the decision of this Court and that the legisTlie State of Orissa lature has no power to declare as valid and constitu-
-
tional what was decided by this Court as invalid and
JagannadhadasJ. unconstitutional.
But it is to be observed that the
legislature does not purport to do anything of the
kind.
What it does is not to deem the schemes previously settled as having been validly settled on those
very dates, under the then existing law.
This of
course is beyond legislative competence since the
legislature has not the power to override unconstitutionality as such.
But what the legislature has
purported to do is to take up those very schemes and
. deem them to have been settled under the provisions
of the present Act and thereby to Jay them open to any
attack available under the present law. Such a provision is not uncommon in legislative practice, and
is enacted in order to avoid the public inconvenience
of having to re-do what has previously been done.
The result of section 79-A is to treat the schemes
framed within the specified period as schemes framed
immediately after the commencement of the present
Act and to impute thereto, by a fiction, compliance
with the various procedural and other steps which
are requisite under section 42.
We can see no reason
for thinking that such a provision is not within the
competence of the Legislature. It has been suggested
that this is really interfering with the jurisdiction of
this Court under article 32. But there is no substance
in that suggestion.
The right of any person to,seek
remedy under article 32 in respect of any violation
of his fundamental rights is in no way curtailed or
affected by the fact that a.n actual decision of this
Court on an application under article 32 is, in effect,
nullified by appropriate and competent legislative
measures.
Indeed, the right h!!,s been, in fa.ct, successfully invoked on the prior occasion and ha.a again
been invoked on the present occasion. If it fails this
time it is not because the right and the remedy under
I
' -
I
S.C.R.
SUPREME COURT REPORTS
59
article 32 have been taken away or affected but be1956
cause the unconstitutionality has been removed. SecSri Sadasib
tion 79-A, therefore, is not open to any objection on
Prakash
the ground of legislative incompetence.
Brahmachari
It has further been urged that to treat the scheme
v.
prepared with reference to the Act of 1939 as amend- The State 0/0rissa
ed in 1953 as a scheme prepared under the present J
-dh d J
A
b
f
fi .
.
ll . th
f
aganna
a as •
ct y means 0
a
ct10n JS rra y lil
e nature 0
deprivation of certain advantages which an aggrieved
person would have had if in fact the scheme was
settled under the present Act, and that therefore such
a scheme would still operate by way of unreasonable
restriction. This contention is also without substance.
It is true that in the present Act the procedure relating to the scheme has four steps which are as follows:
(I) The scheme is to be framed by a Commissioner, who is, by appointment, a judicial officer.
(2) The procedure is, as far as may be, the same
as that in the trial of suits.
(3) There is a preliminary enquiry by the Assistant Commissioner.
(4) There is an appeal t.o the High Court.
Out of these four, the substantial item is the last one
and that has been specifically provided for under section 79-A and a period of sixty days from the date of
the commencement of the Act has been provided for
the right of appeal.
There can be no complaint on
this score.
It is true that the schemes under the Act then in
operation, i.e., during the specified period, might
possibly have been framed by (a) an executive officer,
as also (b) in pursuance of procedure under the rules
framed by the Executive Government which may not
approximate to that of a trial of a suit.
But this
was merely a theoretical possibility.
In fact, as
appears from the record and, as has been stated to us
by the learned Attorney-General on behalf of the
State and not disputed on the other side, the Endowment Commissioner during the specified period was a
Subordinate Judge of the Orissa Judicial Service.
The actual procedure which was in foree at the time
under the rules as then prescribed was also in fact in
60
SUPREME COURT REPORTS
(1956]
1956
consonance with the trial of suits. under the Civil
Sri Sadasib
Procedure Code.
This appears clearly from rules 51
Prakash
to 109 of the Rules framed by the Government- of
Brahmachari
Orissa, an official copy of which has been supplied to
v.
us in court by the learned Attorney-General on beTh• State of Orissa half of the State. As regards the provision .that the
-
enquiry by the Commissioner under the present Act
JagannadhadasJ. has to be preceded by a preliminary enquiry by an
Assistant Commissi9ner who is of the rank of a Munsif, the argument that the deprivation of this feature
by the deeming provision in section 79-A operates to
the disadvantage of the Mahan ts is not by any means
a serious point. It is to be noticed that this is setoff by the fact that schemes under the 1939 Act are
framed not by the Commissioner alone but along
with one or more Government officers appointed by
the Government. We are, therefore, unable to uphold the contention that the deeming provision under
section 79-A which treats the previous schemes as
schemes framed under the present Act results in
bringing about any substantial disadvantages to the
detriment of the Mahants.