His Holiness Sri Vanamamalai Ramanuja Jeer Swamigal, Sri Vanamamalai Mutt vs The Assistant Commissioner, Hindu Religious and Charitable Endowments (Administration)

Veerasami, J.—The main question in this writ petition relates to the construction and the scope of Section 33(1), in the context of Section

14(3) of the Madras Hindu Religious and Charitable Endowments Act of 1959. The Respondent, who is the Assistant Commissioner, Hindu

Religious and Charitable Endowments (Administration), Tirunelveli, by notice, dated July 30, 1962, served on the Petitioner, who is the head of Sri

Vanamamalai Mutt, intimated that he would inspect on August 6, 1962, at a specified hour and at the premises of the math the various accounts,

registers, audit reports, cash balances, securities, negotiable instruments, accounts relating to pathakanihais and also the lands and crops in three

specified villages and other villages, and that the Petitioner himself or through his men should render assistance to the Respondent and his men for

the purpose. The Petitioner, by his Communication, dated August 3, 1962, entered his protest to the proposed inspection and questioned his

powers to do it. He took up the position that the Respondent had not been deputed by the Commissioner to make any inspection and that unless

the Respondent had been deputed, he had no right to call upon him to give inspection of the documents as well as the movable and immovable

properties referred to in the notice. The Petitioner further stated that there had been correspondence relating to the Swami Sannadhi accounts

between the two and under the law, the demand for inspection of the pathakanika accounts was neither legal nor bona fide. The Petitioner wound

up his reply stating that if the Respondent wished to take further steps in the matter he would be constrained to move this Court for a writ to quash

the proceedings proposed by the Respondent.

The Respondent in his turn made a detailed reply, dated August 4, 1962. There he explained that on his view of Section 33(1), he had himself

the power to make the inspection, that in any case he had the authority to do so under a notification, made by the Commissioner in exercise of his

power under Section14(3), and that so far as the pathakanika accounts were concerned, the purpose of his inspection was only to see whether

funds belonging to the math, had been misapplied under the name of pathakanika. It appears that on August 6, 1962, as notified, the Respondent

attempted to inspect. According to him, he having been resisted by the Petitioner in the discharge of his official duties, a complaint has been laid

against the Petitioner for alleged offences under Sections 175 and 187 of the Indian Penal Code. In the circumstances, the Petitioner has moved

this Court under Article 226 of the Constitution to quash the notice of the Respondent, dated July 30, 1962.

Mr. R. Gopalaswamy Iyengar, for the Petitioner, contends that Section 33(1) is a special provision which is in consonance with the policy of the

Act to commit the jurisdiction over maths to the Commissioner, that what it empowers the Commissioner is by himself to inspect or depute in each

case an officer under the Act or any other person for inspection, and that it does not admit a general delegation u/s 14(3) of his powers of

inspection. Learned Counsel further argues that the contention for the Respondent that he is himself given the power of inspection u/s 33(1) cannot

be supported. It is also said that, in any case, there is no power under the Act to inspect accounts relating to pathakanika. Lastly the argument is

that the proposed inspection by the Respondent is not bona fide as will be evident from the fact that the Respondent declined to allow any time to

the Petitioner to move this Court for proper directions, and instead he insisted upon proceeding with the inspection, and later resorted to the

criminal Court with the complaint.

To appreciate the contention which bears on the construction of Section 33(1) the other relevant provisions of the Act may first be briefly

noticed. Madras Act XXII of 1959 which repealed the earlier Act of 1951 in substance re-enacted practically all its provisions with certain

additions. The Act applies to all religious institutions. This expression is defined to include a math. For purposes of administration of the Act three

principal classes of officers, in addition to the Area Committees, are contemplated, namely, the Commissioner, the Deputy Commissioners and

Assistant Commissioners. The Act, by its several provisions, specifies the powers of each of these officers. At the top of the hierarchy is the

Commissioner who is entrusted with the general power to call for records and pass orders u/s 21. Chapter III contains general provisions relating

to religious institutions. Unless otherwise provided, these provisions apply also to maths. Section 24 provides for power of the categories of

officers to enter religious institutions for the purpose of exercising any of the powers conferred upon any of them by the Act. Section 29 relates to

the preparation of the registers for religious institutions containing information as to the origin and history of the institution, particulars of the scheme

of administration and of dittam or scale of expenditure, the movables including jewellery and other endowments and title deeds and other

documents of the institution, and such other particulars as may be required by the Commissioner. Each such register is required to be verified by

the trustee and submitted to the concerned authorities having jurisdiction over the institution. Section 30 provides for annual verification of the

register and the following section for submission of register once in ten years. It will be a consolidated one incorporating therein all alterations and

omissions and additions made earlier. The trustee of a religious institution, which will include also a Mohant like the Petitioner, is obliged u/s 32(1)

to furnish to the Commissioner such accounts, reports, returns or other information relating to the institution, its funds, property or moneys and the

appropriation thereof as the Commissioner may require at such time and in such form as he may direct. This Sub-section is general in terms and

would appear to apply to all religious institutions including maths. Sub-section (2) of the section gives power to the Assistant Commissioner to

require a trustee of a religious institution to furnish to him its accounts, returns, reports or other information relating to its administration, its fund or

property or income and of the appropriation thereof, at the time and manner he specifies. But this power is confined to the area within the

jurisdiction of the Area Committee and further does not extend to a math. Then comes Section 33 which is captioned as Inspection of property

documents. It is necessary to set out Sub-section (1) of this section. It runs:

The Commissioner or any officer or other person deputed by the Commissioner in this behalf, and in the ease of institutions in respect of which the

Area Committee exercises powers and discharges duties any member of the Committee authorized by it in this behalf, may, with due regard to the

religious practice or usage of the institution, inspect all movable and immovable property belonging to, and all records, correspondence, plans,

accounts and other documents relating to, any religious institution.

Sub-section (2) contains a directive to the trustee of the institution concerned to render the necessary assistance and facilities in regard to any

inspection made under Sub-section (1). Sub-section (3) confers on the Commissioner powers of surcharge in cases, on the inspection report,

misapplication of the funds is proved after adopting the prescribed procedure. Sections 45 to 58 in Chapter III do not apply to a math. Chapter IV

contains four sections which exclusively apply to maths. The Chapter provides for power or removal of a trustee of a math or specific endowment

attached to it, for arrangements when vacancies occur, and fixation of standard scales of expenditure. The last section, Section 62, deals with the

power to spend pathakanika. This section has had a history.

Its predecessor was Section 55 in Madras Act XIX of 1951. Sub-section (1) of this section stated that a trustee of a math would be entitled to

spend a his discretion for purposes connected with the math any pathakanika the is to say, any gift of property or money made as a personal gift to

him as the head of the math. The second sub-section was to the effect that the trustee should keep regular accounts of all receipts and

disbursements of such pathakanika and to cause such accounts to be produced before Commissioner or any person authorised by him in that

behalf when required. In The The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt.,

, the Supreme Court ruled that Section 55 was unconstitutional. Sub-section (1) was struck down on the ground that it directed that pathakanika

should be spent only for the purposes of the math which, in the opinion of the Supreme Court, was an unwarranted restriction on the property right

of the Mohant. The Supreme Court also considered that the same objection could be raised against Sub-section (2) of the section as well, for, if

the pathakanika constituted the property of a Mohant, there was no justification for compelling him to keep accounts of the receipts and

expenditure of such personal gifts. This section was therefore amended in 1954 and in the amended form it stated that the trustee of a math should

keep regular accounts of receipts of pathakanika that is to say, any gift of property made to him as the head of the math and shall be entitled to

spend such pathakanika in accordance with the customs and usages of the institution. The validity of this amended section was the subject matter

of Shri H.H. Sudhindra Thirtha Swamiar, Senior Swamiar of Puthige Mutt and Others Vs. The Commissioner of Hindu Religious and Charitable

Endowments and Another, and on appeal in Section H.H. Sudhundra Thirtha Swamiar Vs. Commissioner For Hindu Religious and Charitable

Endowments, Mysore, in which the Supreme Court, affirming the view of this Court, upheld the validity of this section. This is on the view that the

section was applicable only to pathakanika received by the Mohant as the head of the math and it had no application to pathakanika which were

proved to be gifts personal to the Mohant. In the 1959 Act, the former Section 55 has been re-enacted as Section 62, but with two sub-sections.

Sub-section (1) of this section is practically the same as the former Section 55. Sub-section (2) of Section 62 is to the effect that such gifts of

property or money as are not spent by the trustee during his tenure of office in accordance with the customs and usages of the institution shall form

part of the funds of the math. We are not in this case concerned with this sub-section.

Section 86 in Chapter VIII relating to budgets, account and audit prescribes that a trustee of a math shall send a budget showing the probable

receipts and disbursements of the institution during the following fasli to the Commissioner, the Deputy Commissioner or the Area Committee

through Assistant Commissioner or the officers to whom such budgets are required to be submitted in relation to the other institutions within their

relative jurisdiction. The authority to sanction the budget is also vested in the Commissioner. Section 87 in the same chapter deals with accounts

and audit and Section 88 prescribes that the audit report in relation to a math is to be forwarded to the Commissioner. In the case of other

institutions audit reports will be sent either to the Deputy Commissioner or the Commissioner as the case may be.

It may be seen from the foregoing provisions that so far as maths and trustees of maths are concerned, the jurisdiction over them is generally

entrusted to the Commissioner. Basing himself on this fact Mr. Gopalaswamy Iyengar contends that it is not intended that powers of inspection u/s

33(1) specifically given to the Commissioner in respect of a mutt could be delegated to any other officer or person. There might have been

substance in the point, had it not been for the specific provision, namely, Section 14(3) expressly providing for power to the Commissioner to

delegate to the Assistant Commissioner any of the powers conferred or duties imposed on him, except the powers excluded from the scope of

delegation. Sections 13 and 14 empower the Commissioner to delegate his powers either to the Deputy Commissioner or to the Assistant

Commissioner in terms of the section and subject to such restrictions and control as the Government may by general or special order lay down,

and subject also to such limitations and conditions as may be specified by the Commissioner in his order of delegation. Pursuant to these sections

the Government have framed rules which require publication of delegations of power u/s 13 or Section 14. Even assuming, therefore, that the

policy of the Legislature, as gathered from the various sections of the Act, may be to generally entrust the jurisdiction in respect of maths and

trustees of maths to the Commissioner, it cannot be held that this policy can override an express provision in the very Act enabling the

Commissioner to delegate some of his powers relating to them.

Mr. Gopalaswamy Iyengar further argues that Section 33 is a corollary to the two immediately preceding sections relating to submission of

register once in ten years, and the obligation of the trustee of a math to furnish accounts and returns to the Commissioner. Learned Counsel says

that it is only where the necessity arises out of or in the light of the register submitted u/s 31 or accounts and returns u/s 32, could Section 33 be

invoked for purposes of inspection, and in such a case it is the Commissioner, that the section contemplates should inspect, subject of course to his

powers of deputing an officer or other person for the purpose. Learned Counsel adds that this is made clearer by reference to Section 32(2) which

provides that the submission of accounts and returns in respect of religious institutions other than a math shall be to an Assistant Commissioner. The

argument is that to hold that the Assistant Commissioner will have the power to inspect will be in conflict with the principle of Section 32(2). I am

unable to accept this approach either. Sub-section (1) of Section 32 is in general terms and it applies to all religious Institutions without an

exception and Sub-section (2) by its opening words makes it clear that its operation will be without prejudice to the provisions contained in Sub-

section (1). Also Section 33(1) itself likewise is in general terms. It is, therefore, not possible to accept the contention for the Petitioner that either

Section 33 is intended to be a corollary in the sense in which learned Counsel meant it, to Section 31 and Section 32 or that Sub-section (2) of

Section 32 throws any light upon or controls in any way the scope of Section 33(1).

That takes me to the further argument for the Petitioner that, examining the terms of Sub-section (1) of Section 33 it is clear that the power of

inspect is primarily given to the Commissioner and that where he thinks it necessary he can but only specifically in each case, when the necessity

arises, depute any officer or other person. Learned Counsel says that depute and in this behalf in the sub-section unmistakably point to that

position. Prima facie it appears that the word depute implies that is used in relation to a person deputed. It will be inappropriate to say that powers

are deputed. To that extent the Petitioner may be right. He points out that the phrase in this behalf should be understood in the sense of for the

occasion. In other words, the suggestion is that what Sub-section (1) of Section 33 contemplates is that the Commissioner can depute an officer or

other person for the purpose of inspection in each case and he cannot do so, having regard to those terms by way of a general delegation. But a

reading of Sub-section (1) is sufficient to my mind to show that the phrase in this behalf is not used in the sense suggested by the petition but it only

means deputing an officer or other person for inspection. In my opinion, it will not be correct to decide the question whether a delegation the

power u/s 33(1) can be made or not by reference to the words depute and in this behalf. Sub-section (1) of Section 33 contemplates two powers.

One is the power of the Commissioner to inspect. The second is his power to depute an officer or other person to inspect. The question here is not

whether the power of the Commissioner to depute an officer or other person can be delegated. Section 14(3) in terms expressly says that the

Commissioner may delegate to an Assistant Commissioner any of his powers except of course those in some of the sections mentioned in it. As I

said, one of the powers of the Commissioner being to inspect u/s 33(1) he is certainly entitled u/s 14(3) to delegate that power to any officer or

other person. It is another matter whether where a delegation u/s 14(3) is made of the powers u/s 33(1), the delegation will have the power also to

depute other person. That question does not in my opinion arise in this case. The delegation u/s 14(3) of the power u/s 33(1) is to be found in a

notification in the Fort St. George Gazette dated February 17, 1960. Appendix II to this notification relates to the power delegated to an Assistant

Commissioner. One of the powers so delegated to him is the power u/s 33(1) and this power as delegated to the Assistant Commissioner is

exercisable under Appendix II of the notification in respect of all religious institutions. It seems to me that so far as the power of the Commissioner

to inspect is concerned, the notification delegating it to the Assistant Commissioner is not open to challenge, on the ground that by the terms of

Section 33(1) such delegation is not permitted.

The Respondent in a reply notice to the Petitioner took up the attitude that even apart from delegation of the power of the Commissioner u/s

33(1) he has directly the power of inspection under that very provision. Learned Advocate-General sought to support this stand of the

Respondent. I think it impossible to accept his contention. Section 33, as already mentioned, is in general terms and its scope has to be understood

by reading the entire section. Sub-section (3) relates to his power of surcharging a trustee of a religious institution. That power is exercised in

relation to the inspection report and the finding arrived at by him. This power under Sub-section (3) of Section 33 is not delegated. It does not

appear, as I read Section 33(1) that the Commissioner and any officer under him are placed in the same position and both are given the power of

inspection. Having regard to the phraseology and the collocation of the words in Sub-section (1) of Section 33(1) am of the opinion that the power

of inspection is only entrusted to the Commissioner and not to any officer or other person. The learned Advocate-General suggest that depute in

the section will have reference only to other person and not to any officer. I am unable to read the section in that manner. The word deputed also

has reference to any officer. The Respondent is, therefore, not right in taking up the position that apart from any delegation he has any power of

inspection u/s 33(1).

It is then contended by Mr. Gopalaswamy Iyengar that, assuming that the delegation is good, in so far as the notice of the Respondent to

inspect covered also accounts relating to pathakanika it is liable to be set aside. The argument is that pathakanika being personal to the Petitioner

the Respondent cannot call upon him to produce accounts relating to such pathakanika. Clearly Counsel for the Petitioner is right to that extent. In

fact Section 62, like its predecessor section 55, does not apply to pathakanika tendered to the Mohant as a personal gift to him. That section will

cover only pathakanika tendered to him as the head of the institution. But in the communication of the Respondent, dated August 4, 1962, he had

explained that the notice to inspect only related to accounts of pathakanika received by the Petitioner as the head of the mutt. In view of that

explanation, I do not think it necessary to strike down that part of the notice relating to production of accounts of pathakanika. Whether any

pathakanika has been received by the Petitioner as the head of the mutt or as a personal gift to him is another matter. That will have to be decided

by separate proceedings. It seems to me that once the Petitioner raises an objection that the pathakanika covered by the accounts which the

Respondent wants to inspect are his personal property and not received as head of the mutt, the Respondent could not assume to himself the

jurisdiction to decide the question himself and insist upon inspecting the accounts. He can only inspect the accounts in the light of any decision on

the question by a competent authority.

As far as I can see there is no provision in the Act which empowers the Assistant Commissioner to decide that question. Where he acts under

the delegated power of inspection, his power is only confined to such inspection of such accounts as may be covered by Section 62 , and, as I

said, that section (Tiff missing page 80) (Sic).