S. Ramaswami Poosari vs The Madras Hindu Religious Endowments Board and Another

Pakenham Walsh, J.—This is an application u/s 151 of the CPC and Section 107 of the Government of India Act of 1908 to issue a writ of

certiorari against the Hindu Religious Endowments Board and to quash the proceedings of that Board, dated 17th July, 1934. The matter concerns

the Mariamman temple of Irakkankudi, Sattur Taluk, Ramnad District. It is an excepted temple according to the amended definition of Act IV of

1930. The Hindu Religious Endowments Board had suo motu started proceedings u/s 62 of Act II of 1927 which I shall hereafter call the Act to

frame a scheme. The draft scheme had been submitted to the trustees and was pending at the time of the order. The Board states in the order:

whereas complaints have been received by the Board that Sri Mariamman temple of Irakkankudi, Sattur Taluk, Ramnad District is receiving

income by way of Kanikkais and other offerings from the worshippers estimated to amount to thousands of rupees and that the poosaries who are

in management of the temple do not bring them into account whereas the poosaries estimate the income at a very low figure and there is conflicting

version with regard to the income of the temple, the Board pending final orders in the scheme proceedings in O.A. No. 160 of 1934, with a view

to ascertain the correct income derived by the temple during the Adi Fridays from all sources put together, u/s 18 of Madras Act II of 1927,

hereby appoints M.R. Ry. M.P. Chellaswamy Konar, Avl"" trustee of Sri Venkatachalapathi Temple at Sattur as Interim Receiver of the above

temple for realising the collections during the Fridays in the current month Adi.

Then certain instructions are issued to the Receiver, the most important of which for the purposes of these proceedings were (Para. 4) that he

should or ""deposit the collections in cash in a recognised bank retaining with him a sum not exceeding Rs. 100 for current expenses for which he

should render proper accounts"". (Para. 5) ""The offerings in kind and cattle, fowls, etc., shall be disposed of in public auction on a day fixed by him

and after giving due notice to the Inspector of the Board and the poosaries of the temple and the proceeds thereof shall also be deposited along

with the cash collections."" (Para. 6) ""Jewels, vessels, etc., received as offerings will be kept separately under seal"". This order was passed ex parte

by the Hindu Religious Endowments Board. The poosari (the petitioner) attacks it as ultra vires on the following grounds (1) that the Board has no

power to appoint a Receiver; (2) that in any case it has no power to appoint a receiver for the personal gifts which are the properties of the

poosari; (Vide Sections 9, 11 and 79 of the Religious Endowments Act); (3) that in any case the ex parte order is contrary to law and natural

justice and (4) that while the Board is framing a scheme u/s 63 any order passed by the President alone is not legal. Of these contentions, by far

the most important is the first, because it cannot be doubted that the officer of the Board who has been appointed in the order does supercede

temporarily the Poosaries who are the trustees, whether such officer be called Receiver, as the order styles him, or anything else.

The petition has been argued very ably and at length by both sides and I propose to deal with it primarily with reference to the Act itself which

after all must be the basis of the decision. This order admittedly professes to be passed u/s 18 of the Act. Section 18 runs thus:

Subject to the provisions of this Act and of any scheme settled OJ deemed to be a scheme settled under this Act, (1) the general superintendence

of all religious endowments within the territorial jurisdiction of a Boar(sic) shall vest in such Board and (2) The Board may do all things which (sic)

reasonable and necessary to ensure that maths and temples are prop(sic) maintained and that all religious endowments are properly administered

(sic) duly appropriated to the purposes for which they were founded or exist.

Explanation. - ""The general powers of superintendence of the Board shall include the power to pass such interim orders as it deems necessary in

the interests of the proper maintenance of a math or temple or the administration of a religious Endowment."" The explanation was added by Act IV

of 1930. With regard to the power of the Hindu Religious Endowments Board in the matter of trustees, Chapter V which deals with non-excepted

temples, Section 53, gives to the Committee appointed by the Board power to suspend, remove or dismiss a trustee of the temple for certain

reasons enumerated thereunder. In the case however of excepted temples, to which Chapter VI applies, that power is much narrower. u/s 61, the

Board (not the Committee) can call on the trustee for a budget and for a statement of the actual receipts and disbursements of the previous year.

u/s 62 it can hold enquiry into a trustee''s conduct and u/s 63 in settling a scheme, the Board, if it considers it necessary, can associate any person

or constitute any separate body for participating or assisting in the administration of the endowments. There is no section excepting Section 73

which deals with the removal, suspension or, dismissal of a trustee of an excepted temple. u/s 73 the Board or Committee having jurisdiction over

any math or temple, or any person having interest in such temple or math, having obtained the consent of the Board may institute a suit in the Court

to obtain a decree (a) appointing or removing the trustee of a math or excepted temple (b) vesting any property in a trustee."" A faint argument was

attempted by Mr. Venkataramana Rao for the Respondent that because Section 73 says ''may institute'', this is not the sole remedy and that the

Board may exercise a power which he maintains is inherent in its power of management of suspending, appointing or dismissing a trustee. I am

quite unable to agree with this contention which was not very strenuously pressed. There is no object in saying that the Board may file a suit to

remove a trustee when it can by a mere executive order do it otherwise. Prima facie therefore the scheme of the Act seems clearly to] negative the

right which has been exercised in the present order and as the matter falls to be decided under the Act it would require extraordinarily strong

reasons to hold that the Act does not mean what it obviously seems to say. Since however there has been a long and able discussion on both sides,

independent of the express terms of the Act, I shall deal with some of these arguments.

It is argued out for the petitioner that only a Court can appoint a Receiver and that the Board has no power to appoint a Receiver, as was done

in this case, to ascertain the income. The power of appointing a Receiver was originally confined to the Chancery Court in England. Under the

CPC of 1859 there were only particular cases in which the mofussil Courts could appoint Receivers. The Act of 1882 gave the District Courts this

power and it was not till the Act of 1908 that the power was extended generally to other Courts. In England it was only by the Judicature Act of

1925 that the Common Law Courts got this power (Vide Kerr on Receivers, page 81). The provisions of the CPC are not in terms made

applicable to the proceedings of the Hindu Religious Endowments Board. (Vide Full Bench decision in Rajagopala Chettiar v. The H.R.E. Board,

Madras I.L.R.(1933) 57 Mad. 271and it is not contended that in this matter the Board or its President was acting as a Court. In Gyanananda

Asram v. Kristo Chandra Mukherji 8 C.W.N. 404, it was held that in a suit brought under Religious Endowments Act, a Civil Court has no power

to appoint a Receiver or Manager of debutter properties except u/s 5 of the same Act. A Civil Court has power under that section to appoint a

manager only when there is a dispute as to the right of succession. Their Lordships proceed to say that a person electing to proceed under the

Religious Endowments Act can be given only such special relief as that special statute says it may give, and if he wishes for any relief beyond that

he should proceed u/s 539 of the Civil Procedure Code. It is suggested for the respondent that Gyanananda Asram v. Kristo Chandra Mukherjfi is

no longer good law because the procedure to be applied in Gyanananda Asram v. Kristo Chandra Mukherji 8 C.W.N. 404 if it is sought to

appoint a Receiver, i.e., to proceed u/s 539, Civil Procedure Code, is now taken away because the remedy u/s 92(2) which corresponded to

Section 539 has been taken away by Act II of 1927. Sitharama Chetti v. Sir S. Subramania Aiyar I.L.R.(1915) 39 Mad. 700 : 30 M.L.J. 29 is

quoted. This is a case of a temple falling u/s 3 of Act XX of 1863, that class of temple which corresponds now to non-excepted temples, whereas

temples falling under S.4of Act XX of 1863 correspond to the excepted ones. It was a case where the Court framed a scheme u/s 92, Civil

Procedure Code, and there is no doubt about the Civil Court''s power in framing a scheme under that section to appoint a Receiver Sitharama

Chetty v. Sir S. Subramania Aiyar I.L.R.(1915) 39 Mad. 700 : 30 M.L.J. 29, therefore does not establish the power of the Board to appoint a

Receiver in the case of non-excepted temples, still less in the case of excepted temples. I do not however wish to say anything about their power in

the case of non-excepted temples, a matter which does not arise in the present petition. As to the limited powers of even Courts to appoint

Receivers, reference has been made to Kanhaiya v. Kanhaiya Lal I.L.R.(1924) 46 All. 372 where it was held:

It is not competent to a Court, in the course of the hearing of an application for a succession certificate, to entertain an application for the

appointment of a Receiver and in doing so it acts without jurisdiction, and such an action can be set aside by the High Court sitting in revision, even

though a final order actually appointing a Receiver had not yet been passed by the lower Court.

In Assardas Manghnmal v. Mt. Thakurbai AIR 1927 Sind 237 it was held that the Court could not appoint a receiver in a proceeding for the

removal of a trustee and the appointment of a new trustee under the Trusts Act (Section 74). In the latter case the ratio decidendi seems to be that

the party has another remedy but that is equally the case here with regard to suspension and removal of trustees, for Section 73 provides for a suit

being filed for that purpose.

I will note briefly some other general arguments urged on each side. The petitioner urges and it is admitted, that the powers of superintendence

u/s 18 are taken almost verbatim from the powers given to the Board of Revenue under Sections 2 and 3, Regulation VII of 1817. The petitioner

argues that the powers given u/s 20 of 1863, which repealed Regulation VII of 1817, are the same as were given by that Regulation and that

Section 18 does not extend the powers granted under Sections 2 and 3 of the Regulation VII of 1817. Under Act XX of 1863 the Board of

Revenue surrendered all control of institutions falling u/s 4 of that Act. In Ponduranga v. Nagappa ILR 12 Mad. 366 it was held that even where

the temple fell u/s 3 of Act XX of 1863 the plaintiffs (the Temple Committee) appointed under that Act were not entitled to be put in possession of

the property or to receive its income. At page 369 it is stated:

It must be borne in mind that acts of Public Officers done in the exercise of general supervision and control over trustees under Regulation VII of

1817 should be distinguished from the right to nominate a trustee or to confirm such nomination which alone is constituted as the test of the

Committee''s jurisdiction.

In Sheik Davud Saiba v. Hussain Saiba I.L.R.(1893) 17 Mad. 212 : 4 M.L.J. 48 it was held that:

A temple committee appointed under Act XX of 1863 may appoint new trustees when there is no hereditary trustee to add to the existing trustees.

In Venkatachala Pillai v. The Taluk Board, Saidapet I.L.R.(1911) 34 Mad. 375 : 21 M.L.J. 305 it was held that though Regulation VII of 1817

and Act XX of 1863 were applicable to endowments made after the Regulation as well as to prior endowments, the Board of Revenue had no

power to ignore the rights of a person lawfully in office as trustee and to appoint another person in his place without dismissing him. In this respect

they said there is no difference between a hereditary and a non-hereditary trustee who is equally entitled to a freehold office. In Seshadri Aiyangar

v. Nataraja Aiyar I.L.R.(1898) 21 Mad. 179, it was held that even in the case of a temple falling u/s 3 of Act XX of 1863, the committee had no

power to suspend a trustee pending enquiry, though after a proper enquiry and for sufficient causes shown they had the power of dismissal. In

Ganapathi Aiyar v. Sri Vedavyasa Alasinga Bhattar I.L.R.(1906) 29 Mad. 524 : 16 M.L.J. 435 it was held that u/s 13 of the Madras Regulation

VII of 1817, the Board of Revenue was competent to appoint hereditary trustees when such appointment did not interfere with any subsisting

rights. In Sundararama Sastri v. Ananthakrishna Naidu (1916) 5 L.W. 672, it was held that though the temple committee had powers of

superintendence and control over temple trustees yet it must not interfere with the rights of the trustee which existed by virtue of the trust and also

by virtue of the power of management:

Any attempt by the rules to relegate a trustee to the position of a servant of the committee is ultra vires. The trustee has a freehold in his office and

the property is vested in him. A temple committee is not entitled to the possession of the temple or its properties; it is the lawful trustee that is

entitled to the possession thereof.

The difference between the powers of superintendence and the power of management is brought out in the Chairman, Municipal Council of

Rajamundry v. Susurla Venkateswarlu I.L.R.(1907) 31 Mad. 111 T. Venkatachala Pillai (died) and Another Vs. The Taluq Board, , leaves this

exact point open, but it is there held that the Board of Revenue had no power to ignore the rights of a person lawfully in office as trustee and to

appoint another person in his place without dismissing him. It is unnecessary to cite more cases to show that under Act XX of 1863 at least (and

according to several of these decisions even under Regulation VII of 1817) the powers of the Board of Revenue even in the case of non-excepted

temples were limited. In Zamorin of Calicut v. Krishnan Nambudripad I.L.R.(1930) 54 Mad. 532 it was observed:

that the policy of the Madras Hindu Religious Endowments Act as seen from a comparison of Chapters IV, V and VI thereof is to place maths and

excepted temples, in normal conditions, under much less direct and detailed interference from the Religious Endowments Board in matters of

internal management than ordinary temples.

Mr. Venkataramana Rao argued that the power to frame a scheme is not a power given under Regulation VII of 1817 or Act XX of 1863.

When Act XX of 1863 repealed Regulation VII it also repealed Section 92, Civil Procedure Code, the scheme section. Admittedly the Board has

power to frame a scheme u/s 63 in the case of excepted temples. His argument proceeds that in order to frame a scheme they must ascertain the

income and the only satisfactory way of ascertaining the income in the present case is by appointing a Receiver. He quotes Maxwell on the

Interpretation of Statutes, 7th Edn., page 304. Section 2 which runs,

where an Act confers jurisdiction, it impliedly also grants the power of doing all such acts or employing such means as are essentially necessary to

its execution.

He quotes two cases in support of his contention that this will give the Board the power of appointing a Receiver for ascertaining the income of

an excepted temple. The first is Vaithinatha Aiyar v. Thiagaraja Aiyar (1919) 41 M.L.J. 20. But that case did not deal with the matter of a

Receiver at all but merely held that the Court could go into the construction of the document to ascertain the income of the temple. The second

case is Chotalal Lakhmiram v. Manohar Ganesh Tambekar (1899) L.R 199 : ILR 24 Bom. 50 There however it was a case of a suit praying that

the defendant should be made accountable as trustee for the right disposal of the property acquired. The High Court directed the District Judge

amongst other things (1) to take steps either by appointing a Receiver or otherwise in his discretion for guarding the property of the temple, (2) to

take an account of the property and of the receipts and disbursements of the temple, (3) to make the requisite orders for recovering property

appropriated by the shevaks and (4) to draw up a scheme for the future management of the temple and its funds. The Privy Council on appeal held

that the decree was right, no further directions being necessary, the first thing to be done being to take an account of the trust property. This was

an ordinary case of a Receiver appointed by a Court in a suit. For the same reason Veeraraghava Tathachariar v. Krishnaswami Thathachariar

(1908) 20 M.L.J. 638 and C. Kuppuswami Mudaliar and Others Vs. Y. Subramaniyam Chettiar and Others, , which are quoted are not in point.

These cases deal with the power of a court to appoint a Receiver in a scheme suit. This differentiates them entirely from the present case. I think it

is unnecessary to discuss the contention that the powers conferred on the Committees u/s 3 of Act XX of 1863 were less than those which the

Board of Revenue had under Sections 2 and 3 of Regulation VII of 1817 for it is quite clear, reading Sections 11, 12 and 13 of the Regulation, the

Board of Revenue had not the power of appointing or dismissing trustees in the case of vacancies where the nomination has not previously rested

with the Government or Public Officer. In this connection Piramanayagam Pillai v. Ambalavana Pandarasannadhi (1915) 2 L.W. 371 may be

referred to where it was held:

In a suit by the temple committee for a declaration that the suit temple was subject to its control and should be managed by a trustee appointed by

it the plaintiff committee must prove that the right of appointing the trustees was vested in it. Merely showing that the Government Officials

exercised supreme control over the management of the temple is riot enough. In the absence of other evidence the fact that the Government have

appointed trustees is insufficient to prove the right of appointment. A wrongful assumption by the Government of the power to appoint a trustee is

not sufficient to bring the temple within Section 3 of Act XX of 1863.

It is therefore really immaterial for the purpose of the present enquiry to determine whether the powers of the committee u/s 3 of Act XX of

1863 were more limited than those of the Board of Revenue under Sections 2 and 3 of the Regulation and whether, as contended by Mr.

Venkataramana Rao the explanation to Section 18 of the Act was added in consequence of the remarks made in Seshadri Aiyangar v. Nataraja

Aiyar I.L.R.(1898) 21 Mad. 179 , where it was pointed out that:

the committee during the period of a trustee''s suspension had no right to assume the charge of the property and no provision is made in the Act for

the appointment of a temporary manager.

Nor do I propose to discuss the other cases quoted by him such as Thirnvengadath Aiyangar v. Ponnappiengar ILR (1914) 38 Mad. 1176 :

28 M.L.J. 209 Sitharama Chetti v. Sir S. Subramania Aiyar I.L.R.(1915) 39 Mad. 700 : 30 M.L.J. 29 which deal with what we may now call

non-excepted temples as they are not of any aid in this matter.

His ultimate argument on this point is that the powers conveyed under Regulation VII of 1817 are delegated powers belonging to the

Sovereign (Vide Seshadri Aiyangar v. Nataraja Aiyar) I.L.R.(1898) 21 Mad. 179 , quoting Privy Council decision in Rajah Muttu Ramalinga

Sethupati v. Perianayagum Pillai (1874) L.R. 11 A. 209 where their Lordships say:

It is evident that before the Regulation (VII of 1817) the British Government by virtue of its sovereign power asserted, as the former rulers of the

country had done, the right to visit endowments of this kind and to prevent and redress abuses in their management. There can be little doubt that

this superintending authority was exercised by the old rulers. It appears therefore to be highly probable that the Sethupathis in the days of their

power exercised control over the pagoda, not however in virtue of any proprietary right of patronage but as the rightful or de facto rulers of the

district.

and later on:

It is abundantly clear from this letter that long before Regulation VII of 1817 the British Government not only assumed the power to superintend

the management of the property an I affairs of the pagodas throughout the peninsula but exercised its authority through the agency of the collectors.

This decision of the Privy Council is also alluded to by Wallis, C. J., in Sitharama Chetti v. Sir S. Subramania Aiyar I.L.R.(1915) 39 Mad. 700

: 30 M.L.J. 29.

Now it cannot be suggested that the Regulation of 1817 did in fact convey to the Board of Revenue the right of appointing or removing

trustees when their appointment had not hitherto rested with the Government or other Public Officer. The Regulation is to just the opposite effect.

The respondent must therefore fall back on the position that the Act II of 1927 the present Act now confers on the Hindu Religious Endowments

Board powers of the sovereign in respect of this matter which were not conferred either on the Board of Revenue by (Regulation VII of 1817) or

on the temple committees appointed under the Act XX of 1863 when they take over the powers of the Board of Revenue or at least some of the

powers. This brings us back to the Act itself. But the Act, so far from conferring the power now claimed clearly lays down that the Board must file

a suit to remove a trustee of an excepted temple.

Therefore on the first point, which is the most important, I must hold that the order sought to be quashed is ultra vires on the ground that the

Hindu Religious Endowments Board had no such powers of interference with the trustees of excepted temples. The general principle that ""where

an act confers jurisdiction it impliedly also grants the power of doing all such acts or employing such means as are essentially necessary to its

execution"" cannot over-ride the more particular provisions of the Act which defines the powers. Moreover in a case like the present although it

may be said that no more satisfactory means of ascertaining the income can be devised than actually seizing the offerings at the time they are made

yet it cannot be said that the latter course is essentially necessary to ascertain the income. It can be ascertained by enquiry or evidence and by

exercising the power of the Board u/s 61(b) of the Act. It has been pointed out for the petitioner that the powers of the Charity Commissioner in

England under the Charitable Trust Act of 1860 to appoint a Receiver are specially given to them in exercise of the powers of the Court of

Chancery. As I agree with the petitioner in his main contention I shall deal very briefly with the other objections raised to the order.

With regard to the objection raised under Sections 9 and 11 of the Act, I think the contention for the respondent that the properties are prima

facie temple properties and that it is for the trustees to prove any rights they have in them is correct. Vide Ganapathy Aiyar''s Hindu and

Muhamaddan Endowments, pages 104 and 105 and Rambrahma Chatterjee v. Kedar Nath Banerjee (1922) 36 C.L.J. 478 .

The objection that the order is that of the President and not of the Board of Commissioners is met by G.O. No. 352, page 333, Local and

Municipal, dated 27th January, 1927, in which it is said:

The Commissioner may exercise in respect of his division all or any powers conferred on the Board.

This objection therefore also fails in my opinion. As regards the order being ex parte the reason can be explained by a reference to the

connected proceedings which shows that the matter was urgent. The argument that the Board cannot review its own proceedings is without

foundation, and is in fact contradictory to the other argument used against its appointing a Receiver that the Board is not a Court. Even a Court can

in certain circumstances review its own order. There is nothing to prevent the Hindu Religious Endowments Board from doing so. If the petitioner

had asked the Board and it had refused to do so there might be some justification for saying that the procedure was opposed to natural justice but

as there is no such allegation, I do not think that there is any substance in this objection. In re H''s estate (1875) 1 Ch. Dn. 276 we find the Court

of Chancery appointing a Receiver before service of the writ is an action in bankruptcy. The application for the appointment of a Receiver was

granted, the plaintiffs undertaking that the Receiver appointed should give ordinary security within 10 days and that they would accept any notice of

an application to discharge the order and also to inform the defendants of the latter undertaking.

I have dealt with the various grounds in which this Court is asked to exercise its power and have found the first ground made out. The question

remains whether this is a case in which this Court should do so. Kumaraswami Mudali v. Munirathna Mudalf I.L.R(1932) 55 Mad. 942 : 63

M.L.J. 282 and In re Nataraja Aiyar (1912) M.L.J. 36 Mad. 72 : 23 M.L.J. 293 are quoted by the respondent to show that the exercise of this

power is optional, but in Short and Mellor (Crown Practice, page 48) it is said:

It was formerly held that a writ of certiorari would not be granted ex debito justitiae but that it was in the discretion of the Court; but in Req v. JJ.

Surrey (1870) L.R. 5 Q.B. 466 it was held that to a party aggrieved ought to be granted ex debito justitiae, but that to an applicant who only

comes forward as one of the public, the Court ought to exercise its discretion and that the writ is not, on any grounds, a writ of course.

It appears no doubt that the last Friday of Adi (10th of August, 1934) on which the collections were to be made by the Receiver is already

past by the date of this order. But the money collected is presumably still in the bank and if it has been collected by one who is not authorised to

do so, I think it should be handed back to the Trustees of course on obtaining a receipt for the same. Even if no actual relief is possible the matter

is one of such importance, and the order is a serious infringement of the rights of the trustees that I consider this a proper case in which this Court

should exercise its right of certiorari. The order being in excess of the jurisdiction of the Board must be set aside. The petition is therefore allowed

with costs.

As to the amount of costs to be spoken to tomorrow.

This case having been set down to be spoken to this day as regards the amount of costs of this petition in the presence of Mr. K. Rajah Aiyar

and Mr. A. Nagaswami Aiyar, advocates for the Petitioner and of the Government pleader on behalf of the first respondent and Mr. M.S.

Ratnasabhapathi Mudaliar, advocate for the second respondent, the Court made the following ORDER : Rule 46 of the Appellate Side Rules gives

this Court power to fix a higher fees than would ordinarily be admissible.

Such fees have been fixed in Mahomed Asan Maracair v. Bijli Sahib Bahadur (1933) 66 M.L.J. 367 and T.S. Sankaranarayana Pillai Vs.

A.M. Ahmed Miran Sahib and Others, .

There also appears to be some doubt whether if the fee is left to the taxing Officer he can give one exceeding Rs. 50 under Rule 48. I therefore

fix a fee of Rs. 200 in the case, costs being payable by the first Respondent (Hindu Religious Endowments Board, Madras).