Sri Perarulala Ramanuja Jeer Swamigal vs T.S. Pichu Ayyangar

Venkataramana Rao, J.—The question raised in this revision petition is one of some importance. It relates to the construction of Section 63

of the Madras Hindu Religious Endowments Act. u/s 62 of the Act the petition was put in by some of the residents of Tirukkurangudi village,

Nanguneri Taluk, Tinnevelly District, for the settlement of a scheme for the temple of Sri Alagianambirayar, Tirukkurangudi alleging

mismanagement on the part of the trustee. The Hindu Religious Endowment Board after making the necessary enquiry came to the conclusion that

no case has been made out for the framing of a scheme and rejected the petition. This suit has been filed for setting aside the said order and for

framing a scheme. A preliminary issue was raised whether a suit lies u/s 63, Clause 4 of the Act. The learned District Judge has held that such a suit

lies. It is against the said order that the above revision petition has been filed. It is contended by Mr. Sitarama Rao that on a proper construction of

Sections 62 and 63 of the Act when the Board in the exercise of its discretion declines to frame a scheme the Court has no jurisdiction to interfere

with it. The question is, is this contention tenable? u/s 63, Clause 4 the trustee or any person having interest is entitled to institute a suit in a Court of

law to modify or set aside an order of the Board under the said section. The point in controversy now is whether an order by the Board rejecting

the petition to frame a scheme would be an order within the meaning of Section 63. Section 63 does not expressly provide for such an order. But it

is argued that it does by implication. It is contended by Mr. K.V. Sesha Aiyangar that when Section 63 empowers the Board by order to settle a

scheme it necessarily carries with it the power by order to refuse to settle a scheme. To appreciate this contention it is necessary to examine the

scope and object of these sections. Before doing so, it is desirable to look into the state of the law at the time the Act was passed and the

necessity for the enactment. Before the passing of the Hindu Religious Endowments Act the provision so far as the mofussil Courts in the

Presidency are concerned, for the settlement of schemes relating to religious endowments is Section 92, Civil Procedure Code. Under that section

the Advocate-General or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate-General

may institute a suit for getting any of the reliefs mentioned in that section. It will be noticed that all the reliefs relate to the proper administration and

superintendence of the endowments dealt with by the section and the procedure indicated therein was made mandatory. Before any suit can be

instituted by persons other than the Advocate-General, the consent of the Advocate-General is a condition precedent. The Advocate-General of

his own motion or on the representation of persons interested in the trust after making an enquiry must come to a conclusion that in the interests of

the trust a scheme is necessary. If as a result of the enquiry he is not satisfied as to the necessity for framing a scheme no suit can be instituted and

no relief can be given. Nor can any Court of law compel the Advocate-General to give sanction. It has been even held that no writ analogous to

that of mandamus u/s 40 of the specific Relief Act can issue to him. The reasons given by him for his refusal cannot be canvassed in a Court of law.

The principle underlying that provision is that the Advocate-General represents the Crown who as parens patriae, is the guardian of all the

charities. Therefore he is the competent person to judge whether it is in the interests of the institution that action should be taken. Again if the

Advocate-General sanctions the institution of the suit the Court is not bound to frame a scheme. The Court also is invested with a discretion to go

into the whole matter and finally come to the conclusion that a scheme may or may not be necessary. If it comes to the conclusion that a scheme is

necessary it will frame a scheme, otherwise not. Such was the state of the law on the date of the passing of the Act. It was felt that Courts should

as far as possible be divested of the burden of superintending religious endowments, that their administration and superintendence should be vested

in a body of persons who by experience, habits of thought and their acquaintance with the local conditions would be better able to frame suitable

schemes and see that the religious endowments are properly administered and duly appropriated for the purpose for which they were made. By the

passing of the Hindu Religious Endowments Act, Section 92 has been repealed and the only way to get reliefs provided in that section is by

resorting to the procedure indicated in the Act. A comparison of the several sections of the Act will clearly show that the legislature dealt with

every aspect of the administration and management of the religious endowments in the same manner as Section 92 was intended to deal with. For

the consent of the Advocate-General the consent of the Board has now been substituted. u/s 73 of the Act the Board or any person having

obtained the consent of the Board may institute a suit for some of the reliefs which were previously obtained u/s 92. In regard to the framing of the

scheme the jurisdiction has been conferred upon the Board itself. The underlying policy of the Act is as already stated that the jurisdiction of the

Court to frame a scheme should be taken away and should be vested in a body of persons better competent to do so. If we now turn to Sections

62 and 63 of the Act it will be seen that the power to frame a scheme for an excepted temple is solely vested in the Board which power was

formerly vested in a Court. In lieu of the safeguard which was provided in Section 92 before initiating proceedings for a scheme, vis., the decision

of the Advocate-General as to prima facie proof of its necessity, the decision of the Board has been substituted in Sections 62 and 63. Like the

Advocate-General in Section 92, the Board must be satisfied that a scheme is necessary. For that purpose it can of its own motion or on the

representation of persons interested in the trust who should be not less than 20 in number make an enquiry as to the necessity of a scheme. It is

only when it is satisfied that the trustee has mismanaged or in the interests of the proper administration a scheme should be settled, jurisdiction is

conferred upon the Board by order to settle a scheme. If it is not satisfied, it has no jurisdiction to frame a scheme. The order that is specifically

referred to in Section 63 is only an order settling a scheme. And there is no provision in Section 62 or 63 providing for an order by the Board that

a scheme is necessary or not. Section 63 will not come into operation till the initial decision by the Board that a scheme is necessary. Such an order

is not one contemplated by Section 63. For example if the Board itself takes the initiative there is no provision in Section 62 or 63 to pass any

order that a scheme is necessary or is not necessary because if it comes to the conclusion that a scheme is necessary it straightaway assumes

jurisdiction u/s 63. The order of rejection which is passed after the preliminary enquiry on the petition u/s 62 is an order which it is competent to

pass as a body empowered to deal with the matter in the ordinary course of its functions. In Section 63 only three orders are mentioned, namely,

(1) order settling a scheme, (2) order modifying a scheme, and (3) order cancelling the scheme. Section 63(4) mentions ''every order of the Board

under this section''. Prima facie it must relate to the three orders mentioned in Section 63, Clauses 1 and 3. A reference to the statutory rules made

in pursuance of the power conferred by the Act also lends support to the view that the order contemplated in Clause 4 can only refer to those

three orders and not to any order stating that a scheme is necessary or not. Section 63, Clause 4 says that every order of the Board shall be

published in the prescribed manner, and the rule made by the Local Government in 1926 after the passing of the Hindu Religious Endowments Act

of 1925 in regard to the publication ran in these terms:

Every order of the Board settling, modifying, or cancelling a scheme u/s 53 or Section 59 (corresponding to Section 63 of the present Act) shall be

published in the notice-board of the temple or math affected by the order and in the District gazette of the District or Districts in which the temple

or math is situated ; where the order affects a temple, it shall also be published in the notice-board of the committee, if any, within whose

jurisdiction the temple affected is situated.

Thus it will be seen that only three orders are required to be published, i.e., orders settling, modifying or cancelling a scheme. This rule read in

conjunction with Section 63, Clause 4 shows that every order of the Board under this section only comprises the three above orders and no other.

In the case of doubtful or difficult construction of the Act it is permissible to look into the statutory rules framed in pursuance of the authority

conferred under the Act. The rule of construction is thus stated in Craies on Statute Law at page 144:

When the language of an Act is ambiguous and difficult to construe the Court may, for its assistance in its construction, refer to rules made under

the provisions of the Act, especially where such rules are by the statute authorising them directed to be read as part of the Act.

In support of this rule reliance is placed on the observations of Mellish, L.J., in Ex parte Wier (1871) 6 Ch. A. 875, viz.:

But we are of opinion that, where the construction of the Act is ambiguous and doubtful on any point, recourse may be had to the rules which have

been made by the Lord Chancellor under the authority of the Act, and if we find that in the rules any particular construction has been put on the

Act it is our duty to adopt and follow that construction.

As already pointed out by me, previous to the passing of the Act when the Advocate-General declined to give sanction, there was no power in

the Court to interfere with it. I do not think that there was any alteration in the law intended when the consent of the Board was substituted for that

of the Advocate-General. And further there is the additional fact that as the refusal by the Advocate-General was not final and it was open to him

to alter his decision and subsequently sanction the institution of the suit, similarly it would be open to the Board to revise their decision and come to

the conclusion that a scheme may be necessary. It is contended by Mr. Sesha Aiyangar that if the Court is invested with a power of cancelling a

scheme and in doing so can go into the grounds on which a scheme was considered necessary it would have been contemplated by the legislature

that the Court can also go into the grounds of refusal. I am not able to agree with this view. When the Board settles a scheme it does interfere with

vested rights and therefore a power of revision is conferred on the Court to see that such rights have not been unduly interfered with. The power

now given to the Court is the same which was exercised by it previously, namely, where the Advocate-General sanctions the institution of the suit

for framing a scheme, still the Court can decline to frame a scheme. There is also another reason which is apparent from the provisions of Section

63 and points to the conclusion that it was not in the contemplation of the legislature that the Court should interfere with the exercise of discretion

by the Board in refusing to frame a scheme. So far as the power of interference of the Court is concerned, it can only modify a scheme which had

already been made by the Board. It has no power to frame a scheme itself. It can cancel a scheme framed by the Board but it cannot itself frame a

scheme though it might modify it. So when the Board declines to frame a scheme there is no use in the Court setting at naught that discretion

because there is no power in the Court to compel the Board to frame a scheme. Unless the Court has got that power it would be futile to set aside

such an order. Mr. Sesha Aiyangar contends that such a power can be deemed to be implied is suggested by the wording of Section 65. I do not

see how, when Section 65 says:

Any scheme of administration which has been settled by a Court u/s 63.

It only means a scheme which has been modified by the Court u/s 63 and not a scheme which has been settled by itself. Before a Court can

function there must be a scheme framed by the Board or else it has no jurisdiction to deal with it.

Mr. Sesha Aiyangar relied upon a decision of the Privy Council in (1876) L.R. 3 I.A. 221 (Privy Council) where their Lordships of the Privy

Council were construing Section 76 of the Registration Act (VIII of 1871) which provided that no appeal lay from an order made under that

section. Their Lordships of the Judicial Committee held that an order against which no appeal can be preferred would apply to an order rejecting

as well as to an order admitting an application for registration. Similarly Mr. Sesha Aiyangar contended the order refusing to settle a scheme must

be deemed to have been passed u/s 63. As I have already pointed out an order allowing the petition to frame a scheme is not an order

contemplated u/s 63. Therefore that decision has no bearing on the facts of this case. I am therefore of opinion that the Court has no jurisdiction to

set aside an order made by the Board rejecting the petition u/s 62 of the Act. 1 therefore allow the revision petition and set aside the order of the

learned District Judge and dismiss the suit. But in the circumstances I make no order as to costs.