Veereswaraswamyvaru vs Board of Commrs. for Hindu Religious Endowments and Others

Chandra Reddy, J.—These two appeals arise out of two suits instituted for setting aside or modifying a scheme framed by the Hindu Religious Endowments Board to the Temples of Sri Veereswaraswamy, Sri Bhavanarayanaswamy, Sri Seetharamaswamy and Sri Anjenswamy all situated at Pattisam in West Godavari District. A. S. No, 488 of 1951 arises out of O. S. No. 73 of 1949 brought by the hereditary trustee and the archakas of the temple of Sri Veereswaraswamy to set aside the orders of the Board referred to therein and for other consequential relief while the other appeal arises out of O. S. No. 76 of 1949 instituted for a similar relief in regard to the .scheme pertaining to the other temples.

The archakas are the only Plaintiffs in the latter suit. The first Plaintiff in O. S. No. 73 of 1949 is the Zamindar of Polavaram, and claiming'' to be the hereditary trustee of the same he asked for the relief mentioned above on the averments that the scheme which provides for the appointment of an Executive Officer and the effect of infringing the rights possessed by him and was therefore illegal and without, jurisdiction. It was also alleged that the properties in regard to which the scheme was framed did not constitute an endowment to the temple but were archakatvam service inams and have been in the uninterrupted possession of the archakas subject to the condition that they should render service in the temple.

This suit was resisted by the Hindu Religious Endowments Board on the Plea that the trustee of the temple was not taking any interest in the management of the institution he residing far away from Pattisam, and that there was mismanagement in regard to the affairs of the institution and the endowments thereof. The trial Court on the finding that the affairs of the institution were far from satisfactory and that the trustee was not evincing any interest in the institution and was allowing the archakas to be in possession and enjoyment of the same, came to the conclusion that a scheme was absolutely essential in the interests of the institution and there were no grounds for modifying or varying it in any respect.

It also appears from the judgment that P. W. 1 had stated that the Plaintiffs had no objection to Clause 2 and Clause 9. The latter clause bears on the appointment of the Executive Officer. In the result the suit was dismissed.

Two contentions are raised in A. S. No. 488 of 1951; (1) that the appointment of an Executive Officer is repugnant to the rights guaranteed to the citizens of India under Article 19 of the Constitution; and (2) that the properties in dispute were not granted to the deity in inam but were service inams attached to the office of archakas.

In regard Jo the first point, what is urged is that the hereditary trusteeship being property within the meaning of Article 19 any infringement of the right possessed by the trustee is obnoxious to Article 19 and the appointment of an Executive Officer investing him with all the powers of a hereditary trustee would deprive the trustees of every semblance of the right of a trustee. The foundation for this argument is the judgment of a Division Bench of the Madras High Court in Kidangazhi Manakkal Narayanan Nambudiripad and Others Vs. State of Madras and Another, . There it was decided, that the hereditary trusteeship was property and as such fell within the protection afforded by Article 19 (1) (f) notwithstanding that no emoluments were attached to the office. Consequently any scheme which has the effect of abridging the rights of the hereditary'' trustee would violate Article 19 (1) (f).

In that view, they directed that the scheme should be suitably modified by initiating proceedings under the Act. The learned Judges observed that by vesting all the powers of management in the Executive Officer to be appointed under the scheme and taking away practically the right of the .trustees to participate in the management what was left to the trustees was only the "husk of their title as hereditary trustees, the substance within altogether having gone.

On the basis of this ruling, it is argued by Mr. Krishnarao that the provision relating to the appointment of an Executive Officer should be deleted as it is repugnant to Article 19 (1)(f).

Mr. Gangadhararao for the Respondent urged that the provisions of the Constitution could not be invoked in the present case in that the scheme was framed long prior to the inauguration of the Constitution and even effect was given thereto and an Executive Officer appointed to the institution. We are inclined to give effect to the submission made by Mr. Gangadhararao. It should be remembered that the Constitution has no retrospective effect it being only prospective and the fundamental rights became operative only from the date of the Constitution.

Consequently any act done prior to the commencement of the Constitution, even if it was in violation of the rights guaranteed to a citizen under Chapter III of the Constitution is not affected by the Constitution.

This principle is enunciated in Keshavan v. State of Bombay, Am 1951 SCC 128 (B). There a prosecution was pending under Press Emergency Powers Act which enactment was impeached as being repugnant to Article 13(1) of the Constitution. This objection was negatived on the ground that Article 13(1) had no retrospective effect but was wholly prospective in its operation and that the existing laws could be void only to the extent of their inconsistency with the fundamental rights. The prosecution having been started prior to any of the fundamental rights guaranteed under the Constitution and therefore could not be impugned on that ground.

Another judgment of the Supreme Court which'' has a greater bearing on the instant case is D.K. Nabhirajiah Vs. The State of Mysore and Others, . The question there arose whether an order of allotment of a house made by concerned authority under the House and Rent Control Order before the Constitution came into force could be assailed as being violative of Article 19 (1) of the Constitution. This was answered in the negative. The contention that the dispossession took place'' on 11th April, 1950, i. e., after the Constitution came into force was negatived with the observation that CI. 3 of sub-clause G of the Control Order the right to possession having been lost earlier and the landlord merely holding on to the property.

It means that though effect is sought to be even to the order after the inauguration of the Constitution, the Constitution could not be called in aid because that was only in consequence of -an act done or an order passed prior to the Constitution coming into being. These two decisions have not been noticed in the judgment of the Kidangazhi Manakkal Narayanan Nambudiripad and Others Vs. State of Madras and Another, , nor was this matter dealt with. Therefore the argument based on Article 19 of the Constitution is ineffective and cannot be admitted.

That apart, the judgment of the Madras High Court has not laid down as an invariable rule that any provision for the appointment of an Executive Officer is inconsistent with or repugnant to the principles enshrined in Article 19 (1) (f). That only lays down that if in effect the hereditary trustee is reduced, to a nonentity it would amount to an abridgement of the rights guaranteed to him in the relevant Article of the Constitution. The decision of each case depends on its facts, the conditions obtaining in a particular temple and the extent of the power given to the Executive Officer.

In this case, there can be little doubt that the affairs of the temple were utterly neglected by the trustee and in the plaint he has even supported the claim of the archakas to be in exclusive enjoyment of the properties of the institution. It also appears that the trustee lives far '' away from the institution and rarely visits the temple. In these circumstances it could not be said that the appointment of an Executive Officer; is not warranted by the circumstances of the case and the condition in which the temple was at the relevant date.

However, we feel that a clause may be introduced in the scheme that the Executive Officer shall work under the trustees and shall carry out the lawful directions issued by them. We may also direct that the Executive Officer shall consult the hereditary trustees while acting under Clause 6, 7 and 8 of the scheme. No other modifications to the scheme are necessary and the other parts of the scheme are therefore confirmed.

As regards the controversy relating to the nature of the inams, Mr. Krishnarao had to admit that he has an uphill task to displace the finding of the trial Court. He fairly submitted that no useful purpose would be served by taking up our time as the title to the properties of the temple did not admit of any doubt on the material on record. We need not therefore go into that matter at any length. This finding is also, confirmed.

In the result, the Appeal No. 488 of 1951 is dismissed except to the extent indicated above. There will be no order as to costs.

A. S. No. 496 of 1951: In this appeal, Mr. Krishnarao stated that he could not attack the finding that the properties belong to the institution as they have been granted to the deity. In inam and also that he could not assail the provisions of the scheme; in other words, he did not press the appeal. He has also drawn our attention to the statement in the judgment of the trial Court that the title of the temple to the properties in question was not seriously disputed.

In the result, this appeal also is dismissed without costs.

The disposal of these appeals would not in any way preclude the parties from entering into an arrangement for the division of the properties as per the G. O. relating to distribution of lands between temples and the archakas.