Full Judgment Text
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PETITIONER:
SRI SRI SRI LAKSHAMANA YATENDRULU& ORS. ETC. ETC.
Vs.
RESPONDENT:
STATE OF ANDHRA PRADESH & ANR.
DATE OF JUDGMENT: 24/01/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
HANSARIA B.L. (J)
CITATION:
1996 AIR 1414 JT 1996 (1) 535
1996 SCALE (1)543
ACT:
HEADNOTE:
JUDGMENT:
WITH
Write Petition [C] Nos.224 of 1990, 980 of 1990, 61 of 1991
& 1209 of 1988
J U D G M E N T
K. Ramaswamy, J.
The petitioners seek to question the vires of Sections
2 (22), 2 (27) and Sections 47 to 55 in Chapter V of the
Andhra Pradesh Charitable & Hindu Religious Institutions &
Endowments Act, 1987 (30 of 1987) (for short, "the Act").
But at the time of hearing Shri K. Parasaran, their learned
senior counsel, restricted his arguments to the validity of
Sections 50 to 55. the petitioner in the first writ petition
is Peetadhipati of the institution known as "Mumukshu Jana
Maha Peetham" [for short, ‘Peetham’] in Peda Muktevi village
of Movva Mandal in Krishna Dristrict of Andhra Pradesh. It
was averred therein that the Peetham was founded by one
Seetharama Yetendrulu an advocate in the year 1938 and he
became a sanyasi. His main philosophy was equality and
universality of all religions faiths, good character,
gratuitous conduct and devotion to God, far more important
than mere rituals. He formed Mumukshu Jana Samajam in 1950.
He published several books under that banner. He was running
a telugu Magazine by name Mumukshuvu. He started school for
the children. He was managing a temple of Lakshmipati Swamy.
the devotees collected funds for all those projects by
voluntary donation and the amount given through bhiksha
[seeking alms]. He donated his ancestral house and purchased
4 acres of land with the aid of Padakanukas [personal
gifts]. He died in 1972 and nominated one of his disciples
as successor and thereafter with the aid of Padakanukas from
thousands of disciples temples were constructed by the first
petitioner and were being managed with the Padakanukas given
by the devotees. It is not a public endowment but a private
trust. The expenses for the maintenance of the math and
worship in the temple are being carried on solely from the
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Paakanukas given by the devotees due to reverence which the
disciples gave to the mathadhipati. It is, therefore, clear
that the above provisions are ultra vires, in their
application to the petitioner math. Similar contentions have
been raised in all other writ petitions. By their very
admission, the petitioner’s institution is a math and being
managed from personal gifts etc. made by devotees and
collected by disciples.
Shri Parasaran, the learned senior counsel, contended
that Section 48 of the Act excludes application of Sections
18 to 22, 25 and 28 of Chapter III to maths. The other
provisions in Chapter III by implication would apply to the
maths for the reason that they are not excluded. Sections 34
and 35, therefore, by implication stand attracted to the
mathadhipati irrespective of the fact whether mathadhipati
falls under the definition of "hereditary trustee" or not.
Mathadhipati is the spiritual head to impart religious
instructions. Therefore, he cannot be treated as a
hereditary trustee nor he be held to hold any office or
service or a post by whatever name it is called. Appointment
of a mathadhipati is not a secular act. Mathadhipati,
indisputably not being a trustee, his appointment is purely
a religious act. The nomination of the mathadhipati is based
upon usage and custom of the math. It is a concept
appertaining to Hindu religious endowment. It is sui
generis. One cannot put it in a strait jacket by any
jurisprudential concept. Section 54 imposes recognition of
the nomination of a mathadhipati by the Commissioner, an
officer of the Government, who does not have knowledge of
usages or practices prevalent in the relevant math.
Imposition of such conditions is an interference with
freedom of religion and power to manage religious affairs.
removal of Mahant under Section 51, filling up of vacancy
under Section 53, recognition of nomination of Mahant under
Section 54 and powers to frame a scheme for the management
of a math under Section 55 are ultra vires of Articles 25(1)
and 26(b) of the Constitution. The learned counsel
elaborated the contentions arguing that the procedure for
nomination of the mathadhipati, convening of a meeting with
mathadhipatis of other maths of similar Samparadayams as
provided under Section 54 [2] of the Act, are repugnant to
the usage and Sampardayams of the same math. Each math is
governed by its own usage and Sampardayams. No two maths can
be held to be governed by the same set of usages and
Sampardayams unless one is specific endowment or subordinate
of the main math. Though several maths may propagate the
same religious philosophy, each math will have its own
distinct and different usage or Sampardayams. Even a math
propagating the tenets of religious philosophy of
Adishankracharya are having different Sampardayams.
Similarly, each math following and propagating the dwaita
philosophy of Madhwacharya will have its own Sampardayam.
maths propagating Vashisthadwaita philosophy of
Shriramanujacharya have their own Sampardayams. Therefore,
the Act attempting to regulate nomination of a mathadhipati
at the recommendation of other mathadhipatis and its
acceptance by the Commissioner, or filling up similarly of
temporary vacancies in the office of mathadhipati, are but
naked interference with religious tenets of Hindu religion.
The Act does not provide any guidelines for things to
be done in Chapter V of the Act. The rules made by
subordinate legislation cannot independently provide
guidelines when the Act. The rules made by subordinate
legislation cannot independently provide guidelines when the
Act is silent as to the essential guidelines. In such a
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situation, the Act itself is unconstitutional for excessive
delegation and provisions of Section 53 [2] (a) to (d) are
not matters on which any secular authority is competent to
decide as to whether the Commissioner will recognise a
person nominated as Mahant who could have other
qualifications like Acharya, Anusthana, Niyama, Bhakti etc.
The best person to adjudge the requisite qualifications is
the religious head himself or the disciples of such
particular math or denomination and not by any other secular
authority not even religious head of another math. Religion
being a matter of particular faith, the persons having faith
of particular denomination is to decide as to who will be
their mathadhipati and to whom they will be disciples. It is
not for the secular judgment or any other authority or even
by making rules or even making provisions for testing his
knowledge of Hindu religion, scriptures, Sampardayams etc.
with the help of persons without such knowledge. In fact, in
a math a celibate appointed as mathadhipati would lead the
life of a celebrate. He may be nominated at any age, say at
even the age of 7 years. He would learn scriptures in a
traditional way in the math itself. A test to be conducted
by Pandits to permit him to be appointed by a secular
authority as the mathadhipati is incongruous or repugnant to
the Sampardayam. A mathadhipati can be removed only on
grounds which are secular in nature like some of the
disqualifications mentioned in Section 51 (1)(i). A secular
authority cannot exercise any power at any stage of
appointment to a religious office. A mathadhipati cannot be
removed by secular authority except for secular reasons
which must be just, fair and reasonable relatable to one or
other of the grounds mentioned in Articles 25 and 26 of the
Constitution. The question of approval or disapproval of a
nomination of a mathadhipati or removal of him on the ground
of not having knowledge of the scriptures etc., would amount
to interference with the religion. The direction to maintain
regular accounts of receipts of Padakanukas would be an
interference with religious duties; and so, it is
unconstitutional, though such a provision for Padakanukas
offered to him as head of the math may be valid; but to the
extent of Padakanukas given as gifts personal to the
mathadhipati, the sections are violative of Article 25(1).
He further contends that by operation of Section 48,
the applicability of Section 29, which relates to
appointment and continuance of executive officers, also
stands applied to the maths by which the Act interferes with
Mahant’s right to manage the math. The power to frame the
scheme under Section 55 is given to the Commissioner and he
appoints the executive officer to manage the math, which is
also an interference with the management of the math, which
act is inherent in the office of the mathadhipati as head of
the institution. The provision for transfer of the office
holders and servants of the math provided in Section 39 is
unconstitutional. Most of the employees of the maths may be
disciples themselves; their appointment, removal, dismissal
etc. being matters of administration by the mathadhipati for
due management of the math, interference by Commissioner in
that behalf is also ultra vires Article 25.
Shri P.P. Rao, the learned senior counsel for the
State, resisted these contentions. He conceded that though
the definition of a trustee in Section 2(29) includes
mathadhipati insofar as his right to administer and manage
the properties of the math are concerned, the Act does not
impinge upon his right as a spiritual head of math. The
abolition of hereditary rights by Section 16 does not
include the right of mathadhipati. Mathadhipati in most
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cases is nominated by his predecessor. mathadhipati is a
sanyasi who has renounced worldly affairs and has severed
his ties with natural family. Therefore, there is no scope
for hereditary succession to the office of a mathadhipati.
The hereditary trustee defined under Section 2(16) and
abolished by Section 16 does not, therefore, include
mathadhipati. The concept of hereditary trustee defined in
the predecessor Act 17 of 1966 is the same as in the Act.
Section 16, therefore, has no application to a mathadhipati.
Qualifications and disqualifications of a mathadhipati
have been separately set out in Sections 53(2) and 51(1)
respectively in Chapter V, which deals with maths. The
qualifications or disqualifications for a trustee mentioned
in Sections 18 and 19 do not apply to a Mahant. Equally,
Section 20 deals with constitution of board of trustees and
its Chairmanship which do not apply to a mathadhipati since
mathadhipati is a single person. Section 22 has no
application, since Section 51 deals with filling up of
temporary vacancies of mathadhipati and Section 53 deals
with filling up of permanent vacancy in the office of
mathadhipati. Equally, Section 25 is not applicable to a
math since Section 49 occupies the field for fixation of
dittam for the math. Section 28 does not apply to
mathadhipati, which has been separately dealt with in
Chapter V. All the provisions contained in Chapter V of the
Act regulate proper management and administration of the
math and the receipt of income, manner of use and
accountability of the Padkanukas to Mahant and the math.
Section 48, therefore, makes explicit what is implicit in
other provisions of the Act. Recognition of nomination of
Matahandhipati [spiritual head] by the Commissioner under
Section 53 was made a condition precedent for succession to
the office of the mathadhipati only to ensure that a person
possessed of the qualifications prescribed in sub-section
(1) of Section 51, alone would succeed to the office of
mathadhipati. The object is to prevent future litigation to
the succession to the office. It was enacted to avoid
indelible effect on the administration of the math
properties and to safeguard the interests of the math which
otherwise adversely gets affected due to protracted
litigation for years. Power has been conferred on the
Commissioner who is the head of the Endowment Department and
a high-ranking officer with vast administration experience.
The law presumes that he would reasonably exercise all the
powers to grant permission. It would imply that the
Commissioner would call in aid alla necessary or
consequential powers usually implied and necessary to the
proper exercise of the power and performance of the duties
to effectuate the purpose and the object of the regulation.
Therefore, it would be necessary that the Commissioner
should have implied powers. In cases where the Commissioner
feels that the nomination of the successor requires
examination, the obligation to consult a Mahant of a similar
math is cast on him; that too with a mathadhipati of other
maths having the same Sampardayams. An agama shastra pandit
working in the office of the Commissioner, Endowment
Department, advises the Commissioner in the matters of
religion including usages, customs or Sampardayams observed
by a religious institution. Rules, viz., Agama Shastra
Pandit Service Rules, 1987 (for short, "Pandit Rules") made
in the behalf provide guidance. If no objection to the
nomination of a mathadhipati is raised by any person, or
where the Commissioner does not have any other adverse
material, or where the nominee does not suffer from any
disqualification, he does not withhold permission for
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succession as a mathadhipati. Only when objections are
raised by any interested person or even by a disciple or the
Commissioner has adverse material, he would seek
clarification or information from the nominee or the
mathadhipati or both and the take a decision. Rule 5 of the
Pandit Rules provides necessary guidelines in that behalf.
The Commissioner is not expected to exercise his powers
under Section 53 (1) arbitrarily or unreasonably. If he so
does in an individual case, the correctness thereof may be
quashed in an appropriate proceeding. according to the
prescribed procedure.
The power to supervise and safeguard the interests of
the maths is a secular function which has by law been
entrusted to the Commissioner. In a given case, if he
exercises the power in a manner objectionable to the
incumbent the same would be amenable to correction in an
appropriate forum. The law conferring such a power cannot be
faulted. The provisions in Sections 52, 53, 54 and the Rules
made thereunder would provide sufficient guidelines which
postulate an enquiry. The administration of mathadhipati
Rules, 1987 would supplement the provisions in Sections 53
and 54. Justice Challa Kondaiah Commissioner pointed out
misuse and abuse of the office by some mathadhipatis who
used math properties as Padakunukas (personal gifts) for
their personal gain and siphoned the income for personal
luxuries or misused for wine or women etc. The Act only
regulates and monitors its utilisation for religious
purposes. The Rules give guidance and full freedom to the
mathadhipati for use of offerings personally given as
Padakanukas to him for religious purpose and for his
maintenance, consistent with his status according to
Sampardayams or usage or custom of the said math. The
Commissioner is invested with the power only for secular
purpose specified in the section. It does not amount to
interference with the rights of the mathadhipati as
spiritual head sanctioned by usage or custom nor does it
tend to lower his position as spiritual head of the
institution. The saving provisions contained in Section 91
of the Act make the matter more clear. The apprehension that
the powers conferred on the Commissioner may be misused or
abused is unfounded. even if it has so happened, the
provisions cannot be struct down or declared invalid on that
apprehended premise.
There is no time limit fixes for nomination of a
successor. The time limit mentioned in Section 54 (1) is
only for intimation of the nomination by the mathadhipati to
the Commissioner. 90 days’ time given thereunder is a fairly
long period for such an intimation and it is a reasonable
period. It would enable the Commissioner to consider all
relevant aspects and to take a decision on his granting
permission for recognition of the mathadhipati.
Section 54(2) governs the case of nomination by
previous mathadhipati and when a mathadhipati is not
available to nominate his successor, a meeting of the
mathadhipatis of other maths and the disciples of the math
to decide the question of successor would arise. Rule 8 of
Madhadhipati Rules is relatable to Section 54(2). Rule 3(2)
(iii) of the Rules, though speaks of minor giving consent,
should be understood reasonably. A consent by a minor would
mean a consent of a guardian on behalf of the minor known
under Hindu Minority and Guardianship Act, 1956 or property
guardian appointed by a competent court. Section 52 confers,
therefore, only limited power to meet one of the
contingencies enumerated therein, viz., occurrence of a
temporary vacancy or existence of a dispute regarding
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successor or successor being a minor without there being a
fit or suitable person to act on his behalf. In such
contingencies the claim of disciples, if any, would be duly
taken into consideration. The provisions in Section 52,
therefore, are not invalid. Section 47 of 1966 Act is
similar to Section 52 of the Act which has already been
upheld by this Court. The executive officer is appointed
under Section 29 only when a scheme has been framed under
Section 55; that too, when the Commissioner is satisfied
from the reports subsmsitted to him that the properties of
the math are mismanaged or misappropriated or that the
Mahant grossly neglected his power as the Mathadhipati. The
scheme framed would be subject to appeal. It would be framed
only after making an enquiry. it is a secular act.
Section 45 of the predecessor Act of 1966 did not
require the mathadhipati to maintain regular accounts of
receipts of personal gifts or other gifts made to the
mathadhipati as head of the math. He was allowed to spend at
his discretion for any purpose which is not immoral or
illegal. As the Commission, after enquiry, found that
corrupt practices were devised to siphon off the funds of
the math as Padakanukas, i.e., personal gifts or the same
are utilised for leading luxurious, immoral or extravagant
way of life, the Commissioner has been empowered to direct
the mathadhipati to render accounts of the gifts received by
mathadhipatis. The provision, therefore, was made only for
accountability of the receipts of such gifts by the
mathadhipatis. In view of the admission that the gifts made
to the mathadhipati for the math are accountable, the Mahant
is liable to account for the same. The personal gifts also
would be required to be accounted only to the extent of
their receipt and not how they are spent by him; he has full
freedom to spend for religious purposes etc. After deletion
of Articles 19(1)(f) and 31 from part III of the
Constitution by 44th Constitution (Amendment) Act, the law
laid down by this Court that the mathadhipati had the
fundamental right to property no longer is available to him.
Therefore, he is required to maintain regular accounts of
the receipt of padakanukas or other personal gifts and to
spend the same at his discretion for purposes connected with
the objects of the math and propagation of the Hindu dharma.
The Act only regulates secular activities of the
mathadhipati in spending the Padakanukas and that too in his
own interest. Therefore, the regulations are permissible
under Article 25 of the Constitution. It does not amount to
interference with the religious functions of the
mathadhipati as head of the math. Since no rules regarding
the transfer of the employees of the maths have been made,
the question of vires need not be gone into. If and when
rules are made the question whether they are consistent with
the scheme needs to be gone into at that time. Therefore,
the argument in that behalf is only of academic interest.
Sections 50 to 55 of the Act read as
under :
"50. Padakanukas and other gifts:- (1)
The Mathadhipati shall maintain regular
accounts of receipts of padakanukas or
other personal gifts of property made to
him as the head of the Math and he shall
be entitled to spend, at his discretion
for any purpose which is connected with
the objects of the math and propagation
of Hindu Dharma.
(2) Any padakanuka or other personal
gift which remains undisposed or during
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the life time of the mathadhipatthi
shall devolve on the math as its assets.
(3) In the case of gifts of property or
money made to the mathadhipathi not as
personal gifts but as gifts intended for
the benefit of the math, the
Mathadhipathi, shall keep accounts of
all receipts and disbursements of such
gifts and shall cause such accounts to
be produced before the Commissioner or
any person authorised by him in this
behalf whenever so required.
Explanation:- Any gift of property or
money made to that mathadhipathi shall,
unless it is specified by the donor as
padakanuka or personal gift, be presumed
to be a gift intended for the benefit of
them math.
"51. Removal of Mathadhipati- (1) The
Commissioner may suo motu or on an
application of two or more persons
having interest initiate proceedings for
removing a mathadhipathi or a trustee of
a specific endowment attached to a math,
if he -
(a) is of unsound mind;
(b) is suffering from any physical or
mental defect or infirmity which renders
him unfit to be a mathadhipathi or such
trustee;
(c) has ceased to profess the Hindu
religion or the tenets of the math;
(d) has been sentenced for any offence
involving moral turpitude, such sentence
not having been reversed;
(e) is guilty of breach of trust, or is-
appropriation in respect of any of the
properties of the math;
(f) commits persistent and willful
default in the exercise of his powers or
performance of his functions under the
Act;
(g) violates any of the restrictions
imposed or practices enjoined by the
custom, usage or the tenets of the math,
in relation to his personal conduct,
such as celibacy, renunciation and the
like;
(h) leads an immoral life; or
(i) fails or ignores to implement the
principles set out in clause (17) of
Section 2.
(2) The Commissioner shall frame a
charge on any of the grounds specified
in sub-section (1) against the
mathadhipathi or trustee concerned and
give him an opportunity of meeting such
charge, of testing the evidence adduced
and of adducing evidence in his favour.
After considering the evidence adduced
and other material before him, the
Commissioner may, by order exonerate the
mathadhipathi or trustee, or remove him.
Every such order shall state the charge
framed against the mathadhipathi or the
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trustee, his explanation and the finding
on such charge together with the reasons
therefor :
Provided that in the case of a math
or specific endowment attached thereto
whose annual income exceeds rupees one
lakh, the order of removal passed by the
Commissioner against the mathadhipathi
or trustee shall not take effect unless
it is confirmed by the Government.
(3) Pending the passing of an order
under sub-section (2); the Commissioner
may suspend the mathadhipathi or the
trustee;
(4) (a) Any mathadhipathi or trustee
aggrieved by an order passed by the
Commissioner under sub-section (2), may
within ninety days from the date of
receipt of such order, institute a suit
in the court against such order;
(b) An appeal shall lie to the High
Court within ninety from the date of a
decree or order of the Court in such
suit.
52. Filling of temporary vacancies in
the office of the mathadhipathi:- (1)
Where a temporary vacancy occurs in the
office of the mathadhipathi and there is
a dispute in regard to the right of
succession to such Office, or where the
mathadhipathi is a minor and has no
guardian fit and willing to act as
guardian, or where the mathadhipathi is
under suspension under sub-section (3)
of Section 51, the Commissioner shall,
if he is satisfied after making an
inquiry in this behalf that an
arrangement for the administration of
the math and its endowment or of the
specific endowment, as the case may be,
is necessary, make such arrangement as
he thinks fit until the disability of
the mathadhipathi ceases or another
mathadhipathi succeeds to the office, as
the case may be.
(b) In making any such arrangement, the
Commissioner shall have due regard to
the claims, if any, of the disciples of
the math.
(3) Nothing in this section shall be
deemed to affect anything in the Andhra
Pradesh (Andhra Area) Court of Wards
Act, 1902 and the Andhra Pradesh
(Telengana Area) Court of Wards Act,
1350 f.
53. Filling of permanent vacancies of
the office of mathadhipathi:- (1) Where
a permanent vacancy occurs in the office
of the Mathadhipathi, by reason of death
or resignation or on account of his
removal under Section 51 or otherwise
the person next entitled to succeed
according to the rule of succession laid
down by the founder, or where no such
rule is laid down, according to the
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usage or custom of the math, or where no
such usage or custom exists according to
the law of succession, for the time
being in force, shall with the
permission of the Commissioner succeed
to the office of the Mathadhipathi.
"53(2) A person for succession to the
office of the mathadhipathi under sub-
section (1) shall possess the following
qualifications, namely :-
7(a) basic knowledge of the Hindu
Religion and philosophy:
(b) knowledge of the relevant scriptures
and sampradaya to which the math
belongs;
(c) capacity to impart the knowledge and
preach the tenets of the math to the
disciples;
(d) religious temperament with implicit
faith in discipline and practice; and
(e) unquestionable moral character.
54. Nomination of mathadhipathi:- (1)
Subject to the provisions of Section 53,
a mathadhipathi may nominate his
successor. The fact of such nomination
shall be intimated to the Commissioner,
within ninety days of such nomination
and the Commissioner may recognise such
nomination. A nomination shall not be
complete unless it is recognised by the
Commissioner. The conditions for
recognition shall be such as may be
prescribed.
(2) Where a Mathadhipati fails to
nominate his successor under sub-section
(1) or where there is no mathadhipathi,
the Commissioner or any officer
authorised by him shall after due
publication convene a meeting with the
mathadhipathis of other maths of the
same sampradayam and the disciples of
the math recognise the person nominated
in such meeting as a mathadhipathi
subjects to the provisions of this Act.
The procedure for convening the meeting
and method of publication shall be such
as may be prescribed.
55. Power of Commissioner to frame
schemes:- (1) Where the Commissioner
either suo motu or upon a report
submitted by the Deputy Commissioner or
the Assistant Commissioner having
jurisdiction, has reason to believe that
the affairs of the math and its
properties are being mismanaged, funds
are being misappropriated, or that there
is gross neglect of duty on the part of
the mathadhipathi he may after making
such enquiry as may be prescribed order
to frame a scheme of administration, of
a math and the specific endowment.
(2) A scheme of administration framed
under sub-section (1) may contain
provision for -
(a) appointing or directing the
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appointment of an Executive Officer.
(b) constituting a committee consisting
of not more than five persons for the
purpose of assisting in the whole or any
part of the administration of all the
endowments of such math or of specific
endowment;
Provided that the members of such
Committee shall be chosen from among
such persons having interest in such
math or endowment;
(c) determining the powers and duties of
such committee; and
(d) any other relevant matter incidental
to the framing of such scheme.
(3) Until a scheme is framed under sub-
section (1) the Commissioner may appoint
a fit person to manage the properties of
math and its endowment.
(4) The Commissioner, after consulting
the mathadhipathi and other persons
having interest, and after making such
enquiry as may be prescribed may be
order modify or cancel the scheme
settled under sub-section (1).
(5) Every order passed by the
Commissioner under sub-section (1) and
sub-section (4) shall be published in
the manner prescribed.
(6) Any person aggrieved by the order of
the Commissioner passed either under
sub-section (1) or under sub-section
(4), may, within sixty days from the
date of publication of the order, prefer
an appeal to the Court."
The rival contentions give rise to the question:
whether any of the provisions of Sections 50 to 55 in
Chapter V of the Act is ultra vires Article 25 or 26 of the
Constitution? Chapter V of the Act deals with maths and
specific endowments attached thereto. Section 47 defines
"mathadhipati" to mean any person whether known as Mahant or
by any other name in whom "the administration and management
of a math or specific endowment attached to a math are
vested." In the concept of mathadhipati, both the elements
of power to hold property and duty to properly maintain it
are blended and neither can be detached from the other. The
Mahant, therefore, as the spiritual head of the math is
entrusted with the administration and management of the math
or the specific endowment. The personal or beneficial
interest of the Mahant in the endowment attached to the math
is manifested in his power of administration and disposal of
the property. His right to administer and manage the
property endowed to the math and other rights of similar
character are vested in the office of the Mahant and,
therefore, they are legal rights attached to the management
and the administration of the property endowed to the math.
He holds the office by custom and usage of the institution.
He acts for the benefit of the institution of which he is
the head. The Mahant as an aesthetic holds the property and,
therefore, it is not heritable like ordinary devolution of
the property since he has completely severed all his mundane
connections with his natural family; cut off from the
mundane affairs and is ordained to impart religious
education to his disciples and teaching of the religious
scriptures etc. to the followers of the religion or the
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sect. Therefore, the ordinary rules of succession to
Mahantship do not apply.
Article 25, assist language amplifies, assures to every
person subject to public order, health and morality, freedom
not only to entertain his religious beliefs, as may be
approved of by his judgment and conscience, but also to
exhibit his belief in such outwardly act as he thinks proper
and to propagate or disseminate his ideas for the
edification of others. Mahant as head of the spiritual
fraternity and by virtue of his office has to perform the
duties of a religious teacher. The deep layers of religion
used in Articles 25 and 26 and its manifest efficacy in
social well-being and integration in the onward march of
civilisation from tribal society to modern life would
appropriately be dealt with in the connected cases relating
to Archakas. Suffice it to state that it is the duty of
Mahant to practise and propagate the religious tenets of
which he is an adherent and if any provision of law prevents
him from propagating his doctrine that would certainly
affect the religious freedom guaranteed under Article 25.
Math or a specific endowment per se cannot practise or
propagate religion. It can be done only by individual
persons. Whether those persons propagate their personal
views or the tenets for which the institution was started,
is immaterial for the purposes of Article 25. Only
propagation of beliefs is protected, it does not matter
whether the propagation takes place in a temple or any other
meeting.
Chapter V does not per se attempt to regulate the
propagation or preaching of the tenets by Mahant or of the
math or religious beliefs to which the math is founded or it
seeks to propagate. The definition of the mathadhipati for
the purpose of the Act is expressly confined only in
relation to the administration and management of a math or
specific endowment attached to the math and vested in him as
mathadhipati. Mahant is not a mere manager or custodian of
the property. In his office as spiritual head, he has power
to dispose of certain properties only for the benefit of the
institution, incur expenditure for the math, to carry on
religious worship for the disciples and to maintain himself
consistent with his office. Though he has undoubted power to
apply the funds of the institution, it would always be
subject to certain obligations and duties equally governed
by customs and usage of the institution. By operation of
Section 48, Section 18 to 22, 25 and 28 in Chapter III of
the Act shall not apply to the maths or specific endowment
attached thereto. Though Section 2(29) defines ‘trustees’ to
include mathadhipati, in the light of Section 47, by
juridical metamorphosis, Mahant is a trustee of the math in
relation to the management of the property of the math or
the specific endowment attached to the math. He has to
discharge the duties of a trustee and is answerable as such.
The definition of "trustee" was used to reiterate the
position he holds in general law of trust in relation to
maths and in law he is enjoined to hold it astrustee.
However, the word ‘trustee’ does not include his right as a
spiritual head of the math or to be a hereditary trustee.
The definition of "hereditary trustee" under Section 2(16)
which was abolished under the Act, therefore, does not apply
nor it includes a Mahant who is spiritual head nominated by
his predecessor mathadhipati or regulated under the Act for
the reasons stated by Shri Rao to which we agree as it is
axiomatic that office of mathadhipati is not hereditary or
devolved by succession. In most cases it is regulated by
nomination by his predecessor under the Act; and in the
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absence of nomination, by consultation with Mahant of
similar maths.
As seen, Mahant being an aesthetic sanyasi, he
renounces mundane affairs and totally cuts off his ties with
his natural family. In H.H. Sudhundra Thirtha Swamiar v.
Commissioner for Hindu Religious & Charitable Endowments,
Mysore [(1963) Supp. 2 SCR 302], this Court had held at page
312 that "generally a mathadhipati is a sanyasin who has
renounced the worldly affairs and severed his ties with his
family". Therefore, the question of hereditary succession to
the office of mathadhipati does not arise. He is, therefore,
neither hereditary trustee nor a trustee in the sense
envisaged under Sections 2(29) and 2(16) of the Act
respectively. But in juxtaposition, his position as
mathadhipati is of a trustee of the property of the math or
specific endowment attached to it of which he is the head
and holds the property as head of the institution as a
trustee with beneficial enjoyment over the math properties
for the propagation of the religious tenets and the
philosophy applicable to the math or specific endowment and
Hindu Dharma. In Kakinada Annadana Samajan etc. v.
Commissioner of Hindu Religious & Charitable Endowments,
Hyderabad & Ors. [(1977) 2 SCR 878 at 886], this Court had
held that mathadhipati is entitled to maintain all the
properties of the math or the specific endowment and allowed
power to manage or administer the properties endowed to the
math or specific endowment. Since Chapter V specifically
deals with maths and Mahants, the general provisions in
Chapter III relate to the administration and management of
Hindu charitable and religious institutions and endowments
to the extent of inconsistency stand excluded by Section 48
from their operation to maths and specific endowments
attached to it. Section 49 relates to fixation of the dittam
known as scale of expenditure with which we are not
concerned in this case.
Section 53 deals with filling up of permanent vacancies
in the office of mathadhipati. It is necessary to emphasise
that mathadhipati as spiritual head of the math, while
imparting religious education, blends his personal
beneficial interest in the properties of the math. The
eligibility of succession as mathadhipati by nomination and
his qualification for eligibility are distinct from his
power of management of the properties and of due
administration of the math. The scope of interference with
nomination as Mahant or his qualifications is delicate but
bears paramount importance. Everyone interested in the math,
predecessor mathadhipati or disciples would be keenly and
genuinely interested in due management and administration of
math and its properties and specific endowments. The
Commissioner, when called to deal with recognition or
nomination, should keep these facts in forefront.
Sub-section (1) of Section 53 deals with that question.
Where a permanent vacancy occurs in the office of
mathadhipati by reason of death or resignation or on account
of his removal from office under Section 51 or otherwise,
the person next entitled to succeed to the office of Mahant,
according to the rules of succession laid down by the
founder of where no such rule is laid down, according to the
usage or custom as exists or according to the law of
succession for the time being in force, shall, with the
permission of the Commissioner, succeed to the office of
mathadhipati. Sub-section (2) prescribes basic
qualifications thus:
"53(2) A person for succession to the
office of the mathadhipati under sub-
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section (1) shall possess the following
qualifications, namely :-
(a) basic knowledge of the Hindu
religion and philosophy;
(b) knowledge of the relevant scriptures
and sampradaya to which the math
belongs;
(c) capacity to impart the knowledge and
preach the tenets of the math to the
disciples;
(d) religious temperament with implicit
faith in discipline and practice; and
(e) unquestionable moral character."
The regulation under sub-section (1) of Section 53,
viz., permission of the Commissioner for the succession to
the office of the mathadhipati, is only to ensure that a
person who possesses the qualifications prescribed in sub-
section (2) and the nominee does not suffer from any of the
disqualifications mentioned in Section 51(1) and such person
alone would succeed to the office. Sri Parasaran is right in
his emphasis that a disciple would learn from childhood
religious education under the guidance of the spiritual head
or any other suitable guide. The broad guidelines in Section
53(2) are illustrative as bridges to make a more mature
sanyasi with profound knowledge in religion. In this
perspective, it is pertinent to quote sub-section (1) of
Section 51 which reads thus:
"51. Removal of Mathadhipati-(1) The
Commissioner may suo motu or on an
application of two or more persons
having interest initiate proceedings for
removing a mathadhipathi or a trustee of
a specific endowment attached to a math,
if he -
(a) is of unsound mind;
(b) is suffering from any physical or
mental defect or infirmity which renders
him unfit to be a mathadhipathi or such
trustee;
(c) has ceased to profess the Hindu
religion or the tenets of the math;
(d) has been sentenced for any offence
involving moral turpitude, such sentence
not having been reversed;
(e) is quality of breach of trust, or
is-appropriation in respect of any of
the properties of the math;
(f) commits persistent and willful
default in the exercise of his powers or
performance of his functions under the
Act;
(g) violates any of the restrictions
imposed or practices enjoined by the
custom, usage or the tenets of the math,
in relation to his personal conduct,
such as celibacy, renunciation and the
like;
(h) leads an immoral life; or
(i) fails or ignores to implement the
principle set out in clause (1&) of
Section 2."
The Commissioner is empowered to remove a Mathadhipati
either on an application of two or more persons having
interest in the proper management or administration of the
math or suo motu. It is, to reiterate, that by the exemplary
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conduct, character, piety, erudition and dedication, the
spiritual head inspires faith in the people and as its part
properly manages the math and efficiently administers the
properties of the math or specific endowment attached to the
math. Mathadhipati of Sri Raghavendra Swamy math inspires
reverence and exacts respect. The problem of removal arises
when the Mahant by his conduct and acts, falls astray from
the path of piety and indulges in acts uncalled for from a
sanyasi and commits misfeasance and malfeasance,
defalcation, misappropriation, falsification of accounts
etc. The Commissioner would be entitled to initiate
proceedings and remove a mathadhipati or a trustee of a
specific endowment on his satisfying any one or all the
conditions enumerated in clauses (d) to (i) or on incurring
disqualifications enumerated in clauses (a) to (c). He is
liable to action under Section 51 (1).
In Digyadarsan Rajendra Ramdassji Varu v. State of
Andhra Pradesh & Anr. [(1970) 1 SCR 103], the appellant
mathadhipathi of Sri Swami Hathiramji Math, Tirupathi-
Thirumala, was suspended from his office pending enquiry
under Section 46(2) of the predecessor Act 17 of 1966. He
challenged the constitutionality of Sections 46 and 47 as
violative of Articles 14, 25(1), 26(b) and (d) of the
Constitution. After considering the vires of those
provisions, this Court had held that while the Mahant was
entitled to enjoy larger powers for the benefit of the
institution of which he is the head, he is under an
obligation to maintain the dignity of his office and to
incur expenditure for the math. The Mahant cannot incur
expenditure for personal luxury or objects incongruous with
his position as a Mahant. The validity of Section 46,
therefore, was upheld. If a Mahant is of unsound mind or
suffers from any physical of mental defect or infirmity or
has ceased to profess Hindu religion or the tenets of the
math or if his case falls within any of clauses (d) to (h)
of Section 46(1), his removal would be in the interest of
the general public. A mathadhipati cannot possibly perform
his duties either as a spiritual or a temporal head nor can
he properly administer or manage the trust if he falls
within the categories mentioned in clauses (a) to (d) or has
been quality of breach of trust of willful default etc. or
leads an immoral life [vide clauses (e) to (h) of Section
46(1)]. The validity of Section 46(1), therefore, was
upheld. the same are the provisions in Section 51(1) and,
therefore, their validity is no longer res integra.
The suspension of a mathadhipati, during inquiry, is a
necessary and reasonable part of the procedure which has
been prescribed by Section 46 of predecessor Act of 1966. If
he is allowed to function during the pendency of an inquiry
the entire purpose of the enquiry must be defeated. the
mathadhipati may, during enquiry, do away with most of the
evidence or tamper with the books of accounts or otherwise
commit acts of misappropriation and defalcation in respect
of the properties of the math. It is essential, therefore,
in these circumstances, to make a provision for suspending
him till the enquiry concludes and an order is made either
exonerating or directing his removal. The action under
Sections 46 and 47 does not infringe Article 25(1) or 26 (b)
or (d).
By operation of sub-section (2) of Section 53, the
qualifications for a mahant are prescribed. If a Mahant has
already been removed, if self-same person is nominated as a
mathadhipati under Section 51(2), it would be obvious that
the Commissioner cannot recognise such a nomination and
grant permission to him as mathadhipati. He would be
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entitled to call nomination afresh. Obviously, recognition
of the Commissioner required under sub-section (1) of
Section 53 only regulates in that behalf, and not when he is
duly nominated as per the qualifications prescribed in sub-
section (2) of Section 53. the provisions, therefore, are
intended to avoid needless protracted litigation over
succession adversely affecting due administration and
maintenance of the math, to safeguard the interest of the
math and due fulfillment of the objects for which the math
or specific endowment is created or established.
The Commissioner who is the head of the Endowment
department is a high ranking officer with wide
administrative experience and is expected to act fairly and
reasonably to effectuate the purpose of Chapter V. It can be
accepted that such a high ranking officer would call to his
aid necessary and incidental or ancillary powers only to
give effect to the purpose of the Act. He would act
reasonably, objectively and fairly. If he betrays the faith
and acts arbitrarily, the individual act is amenable to
correction in an appropriate proceedings. So, he is not
expected to act arbitrarily or at his whim either to accord
or refuse permission to the nominated mathadhipati. if he
commits any excess or acts unreasonably, the individual act
is liable to be questioned and dealt with appropriately
according to law. But for that ground Section 53 cannot be
declared ultra vires.
Sub-section (2) of Section 51 provides procedure for
removal of the mathadhipati for one or the other grounds
enumerated in sub-section (1) of Section 51. The
Commissioner shall frame a charge on the proposed grounds
enumerated in sub-section (1) and have it served on the
Mahant. He should give an opportunity to the erring
incumbent of meeting such charge. Opportunity to adduce
evidence in proof of the charge or in rebuttal thereof, if
the Mahant requests, should be given. After considering and
testing the evidence adduced and other material before him,
he should arrive at his decision and record reasons in
support thereof and record finding on each charge whether
the charge is proved or disproved. The Commissioner, may by
order, exonerate the mathadhipati or a trustee or may remove
him from office. In the case of a math headed by a
mathadhipati whose annual income exceeds Rs.1 Lakh, the
order by removal of mathadhipati or trustee shall not take
effect unless it is confirmed by the Government. The
operation of sub-section (3) is only transitory, viz.,
pending enquiry and passing of the final order under sub-
section (2), the Commissioner is entitled to temporarily
suspend the mathadhipati or the trustee, as the case may be.
Validity of similar provision is Section 46 of
predecessor Act of 1966 has already been upheld by this
Court in Digyadarshan Rajendra Ramdassji’s case. Under sub-
section (4) an aggrieved mathadhipati/trustee has been given
right of challenging the order of removal by instituting a
suit in the court defined in Section 2(8) within 90 days
from the date of the receipt of the order, with a further
right of appeal to the High Court, under sub-section (5),
within 90 days from the date of the decree or order of the
Court. It would thus be clear that complete procedure and
machinery has been provided to the charged Mahant/trustee to
disprove the charge and in case of removal from office, he
has right of instituting suit and preferring appeal to High
Court to have it corrected and legality of the order of
removal, tested with adequate procedural safeguards. Section
51 thus provides a complete machinery for removal of an
erring Mahant adjudging him to be not a fit person to remain
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mathadhipati. The validity of the grounds for removal have
already been upheld in Ramdassji’s case.
Section 52 operates for filling up of temporary
vacancies in the office of mathadhipati. Sub-section (1)
thereof enumerates the circumstances in which the office of
mathadhipati temporarily falls vacant, viz., where a dispute
exists of the right to succession to the office of Mahant or
where the Mahant is a minor and his no guardian fit and
willing to act as guardian or where the mathadhipati is
under suspension under sub-section (3) of Section 51. On the
ex i stence of any of the three grounds, the Commissioner
shall, if he is satisfied, after making enquiry in this
behalf, that arrangement for administration of the math of
the specific endowment, as the case may be, is necessary and
after satisfying himself as to such necessity, makes such
arrangements as he thinks fit until the disability of the
mathadhipati ceases or other mathadhipati succeeds to the
office, as the case may be. The satisfaction reached by the
Commissioner would be on consideration of the material and
other relevant attending circumstances. Sub-section (2)
enjoins that the Commissioner, in making interim arrangement
for filling up temporary vacancy, shall have due regard to
the claims, if any, by the disciples of the math. In other
words, the Commissioner is enjoined to make arrangements to
fill up the temporary vacancy as an interim measure. He
shall endeavour to give due regard to the claims of any of
the disciples of the math for management of the math as
temporary mathadhipati until the disability of the
mathadhipati ceases or another mathadhipati duly succeeds to
the office, as the case may be. In the case of filling up of
the vacancies when the mathadhipati nominated is a minor,
sub-section (3) makes available the remedy under the
provisions of Andhra Pradesh (Andhra Area) Court of Wards
Act, 1902 or Andhra Pradesh (Telangana Area) Court of Wards
Act, 1350F, as the case may be, to appoint property or
personal guardian under the respective Acts applicable to
the place where the math is situated, for appointment of a
fit person as guardian to the ward/minor sanyasi
mathadhipati to administer the math and the properties
attached to the math or specific endowment attached thereto.
The appointment of guardian under Court of Wards Act as
personal and property guardian would be for due
administration of the math and for beneficial enjoyment, the
Mahant has in the property or guardian under Hindu
Guardianship and Maintenance Act, 1956 as and when it
becomes applicable.
Section 54 deals with nomination of the mathadhipati.
Shri Parasaran, learned senior counsel while addressing his
arguments which need no repetition, raised a very strong
objection and fervently, repeatedly, forcibly and
persuasively argued that the secular authority should not be
permitted to interpose iin the nomination of Mahant by act
of acceptance of the nominated mathadhipati on diverse
grounds mentioned hereinbefore. Having given our due careful
and very anxious consideration to his arguments and equally
palatable contentions of Shri P.P. Rao, we find that role of
the Commissioner in that behalf is minimal It is seen that
by operation of sub-section (1) with a non obstante clause,
viz., "subject to provisions of Section 53", the basic
qualifications required for a person to be nominated as
Mahadhipathi are enumerated in sub-section (2) of Section
53. The approach to this problem, which has to be kept in
view by the Commissioner, has already been stated and bears
no repetition. The Mahant may himself nominate his
successor. In other words, the predecessor Mahant should
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keep the prohibited grounds enumerated in sub-section (1) of
Section 51 and qualifications mentioned in Section 53 (2)
before he nominates the successor. He is the best person to
adjudge among his disciples or any other persons, the most
fitting person eminently suited to succeed him. He would be
actuated solely with religious fervor and capacity of his
successor to properly and efficiently manage the trust, to
elongate the object and purpose of the math according to the
established traditions, usage, customs and Sampardayams. He
is enjoined, after due deliberation, spiritual head of the
institution. The saving provision contained in Section 91 of
the Act makes the position quite clear. An apprehension that
the powers conferred by this section may be abused in
individual cases dows not make the provision itself bad or
invalid in law". The ratio with equiforce is applicable to
the context in which we are called upon to test the validity
of the provision.
In this behalf, the Commissioner is guided by Pandit
Rules under which the duly competent person assists him in
convening the meeting of Mahants having similar Sampardaya
for nomination of a mathadhipati. He find that the suitable
procedure has been made in G.O. M.s. No.218 Revenue dated
March 17, 1988 known as Administration of Math Rules, 1987
(for short, "Math Rules"). Proviso to clause (v) of sub-rule
[1] of Rule 3 and proviso to clause (v) of sub-rule [2] of
Rule 3 by way of amendment have been placed before us with
an affidavit of Shri N. Narasimha Rao, Additional
Commissioner, Endowment department who was duly authorised
to swear the affidavit in that behalf.
The above provisos intend to operate thus:
Proviso under clause (v) of sub-Rule [1]
of Rule 3:
"Provided that the Commissioner
shall consult and obtain the opinion of
eminent persons in the field of religion
and philosophy and Sampradaya to which
the math belongs to satisfy himself that
the nominee possesses the prescribed
qualification."
Proviso under clause (v) of sub-Rule [2]
of Rule 3:
"Provided that it shall not be
competent to the Commissioner to refuse
recognition of the nomination or
permission to succeed without giving an
opportunity of being heard to the
Mathadhipati and the nominee or the
successor as the case may be."
It would thus be seen that the Commissioner shall
consult and obtain the opinion of eminent persons in the
field or religion, philosophy and Sampardaya to which the
math belongs to satisfy himself that the nominee possessed
the prescribed qualifications under sub-section (2) of
Section 53 and is not disqualified under Section 51(2) and
would take a decision before granting recognition. In case
he would choose to refuse recognition to the nomination, the
Commissioner should give an opportunity of being heard to
the Mahant and the nominee giving the grounds on which he
proposes to refuse recognition and consider the same. It
would be obvious that he should record reasons for refusal.
In o there words, what is required is that the Commissioner
should test the nomination but not interpose with the
nomination, nor interdict a duly qualified person as
mathadhipati. The role of the Commissioner in that behalf,
therefore, is only in the nature of an intervener in the
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nomination duly testing whether the nominated person is a
fit person to hold the office of Mahant and to manage and
administer the math according to the tenets, Sampardayams,
usage, customs and philosophy of the math and the properties
attached to it.
The power of the Commissioner to frame a scheme under
Section 55 of the Act is not absolute but is conditioned
upon reasonable belief on the basis of the report submitted
by the Deputy Commissioner or the Assistant Commissioner
having jurisdiction over the math or suo motu; but in later
event he should have material on record for entertaining a
reasonable belief that the affairs of the math and its
properties are being mismanaged or that funds are
misappropriated or that the mathadhipati grossly neglected
in performing his duties. Prior enquiry in that behalf is
duly made in accordance with the Rules prescribed
thereunder. The enquiry would include an opportunity to the
mathadhipati to satisfy the Commissioner that the report or
the material, the foundation for the formation of adverse o
pinion against the Mahant, is not well founded or does not
exist. After holding such an enquiry and recording the
finding in that behalf as is implied in sub-section (1), the
Commissioner is required to frame a scheme to administer and
manage the properties attached to the math or specific
endowment. In the scheme so framed, he is required [a] to
appoint an executive officer for day to day administration
of the properties; and [b] to constitute a committee
consisting of not more than five persons for the purpose of
assisting him in the administration of the math as a whole
or any part of the administration of all the endowments of
such math or specific endowments. Under the proviso to sub-
section (2) (b) "the members of such committee so chosen
shall be among the persons having interest in such math or
endowment". In other words, the members of the committee
will be persons who are genuinely interested in the proper
management of the math, management of the properties and
useful utilisation of the funds for the purpose for which
the math or specific endowment is created. The paramount
consideration is only proper management of the math and
utilisation of the funds for the purpose of the math as per
its customs, usage, Sampardayams and philosophy and not the
self-benefit of persons intervening in the management of the
math.
It would appear that the executive officer appointed
should be in charge of day to day management of the math or
the specific endowment attached to the math and the
committee constituted would be of supervisory mechanism as
over all in-charge of the math. Until the scheme is so
framed, by operation of sub-section (3), the Commissioner
may appoint a fit person to manage the properties of the ma
and its endowments. After consulting the mathadhipati and
other persons having interest and after making such enquiry
in the prescribed manner, by operation of sub-section (4),
the Commissioner may, by order, modify or cancel the scheme
framed under sub-section (1). Every order made either under
sub-section (1) or sub-section (4) shall be published in the
prescribed manner. Any person aggrieved by the order of the
Commissioner passed under sub-section (1) or (4), may,
within 60 days from the date of publication of the order,
prefer an appeal to the court. The order of the court by
implication would be final.
It is true that it is the civil court, under Section 92
of the Civil Procedure code, which frames the scheme.
Instead, the legislature has entrusted that power to the
Commissioner. The legislature in its wisdom felt it
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expedient to invest the said power with necessary
limitations in the Commissioner with a right of appeal to an
established court defined in Section 2 (8) of the Act. This
Court in catena of cases had upheld the schemes framed by
the civil court. The change in the Act is only substitution
of the Commissioner to the Court, subject to the limitations
prescribed before and after making the scheme. Thus a scheme
framed by the Commissioner is subject to right of appeal to
the established court which would duly take care and correct
any misapplication or non-application of the settled rules
or principles in framing the scheme and could remedy it in
an appeal. The duration of this scheme thus framed may also
be specified either in the original scheme or one upheld
with modification, if any, in appeal.
The object of Section 55 appears to be to remedy
mismanagement of the math or misutilisation of the funds of
the math or neglect in its management. The scheme envisages
modification or its cancellation thereof, which would
indicate that the scheme is of a temporary nature and
duration till the evil, which was recorded by the
Commissioner after due enquiry, is remedied or fit person is
nominated as mathadhipati and is recognised by the
Commissioner. The scheme is required to be cancelled as soon
as the nominated mathadhipati assumes office and starts
administering the math and manages the properties belonging
to, endowed or attached to the math or specific endowment.
The next question is: whether Section 50 of the Act
interferes with religion and, therefore, violative of
Articles 25 and 26 of the Constitution? It is seen that the
right to administer the math according to the tenets,
philosophy, customs, usages and Sampardaya would include
right to manage the properties and utilisation of the funds
thereof for their due fulfillment. Section 50 divides
Padakanukas into two parts, i.e., gifts personal to Mahant
and to the math as such but given to him as being spiritual
head. Sub-section (1) provides that the mathadhipati shall
maintain regular accounts of receipts of Padakanukas, viz.,
gifts offered as personal to the Mahant or other personal
gifts or properties made to him as head of the math. In
other words, he is required to account for the receipts of
personal gifts. As head of the math he is entitled to
utilise the funds at his discretion for any purposes
connected with the objects of the math and propagation of
Hindu Dharma. The latter part indicates that after he
renders accounts of their receipt, he is free to utilise and
spend the gifts so received by him for any legitimate
purpose which is connected with the objects of the math and
for propagation of Hindu dharma. Since the latter pat is
integratedly connected with his status as Mahant, it does
not interpose or control his power to exercise his
discretion. The obligation fastened on him is only to
maintain regular accounts of receipts of personal gifts or
other personal gifts of properties made personally to him as
head of the math. As rightly conceded by Shri Parasaran, any
such Padakanukas or other personal gifts which remain
undisposed of during the life of the mathadhipati shall
devolve on the math as its properties by operation of sub-
section (2) since the mathadhipati is an aesthetic, a
sanyasi and it will devolve only on the head of the math as
math property. The explanation makes the meaning more clear
and unambiguous. Any gift of property or of money made to
mathadhipati shall, unless it is specified by the donor as
Padakanukas or personal gift, be presumed to be gift
intended for the benefit of the math.
In H.N. Sundundra Thirtha Swamiar case [supra] relied
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on by Shri Parasaran, Section 55 of Madras Act, pre-
amendment and post-amendment, was considered. It was held at
page 315 thus:
"...We deem it necessary also to state
that having regard to the large powers
which the Mahant has over the
application of the funds not only for
the maintenance of the dignity of his
office and expenses for the maintenance
of the math but also for such purposes
religious or charitable as are not
inconsistent with the usage and custom
of the endowment, application of the
funds for personal enjoyment or luxury
by the Mathadhipati or for purposes
wholly unconnected with the institution,
would alone be covered by the second
part of s.52 (1) (f). In our view the
provision which authorises the
institution of a suit for removal of a
Mahant where he is found to have wasted
the funds or properties of the
institution or has applied such funds or
properties for purposes wholly
unconnected with the institution does
not amount to an unreasonable
restriction upon the fundamental right
of the Mahant in the property under his
management."
After noticing the amendment and its effect on the
decision in Shirur Math case [supra], in H.H. Sudhundra
hirtha Swamiar case [supra] this Court held thus:
"By express enactment the expression
‘pathakanikas’ for the purpose of s.55
as amended, means gifts of property made
to a Mahant as the head of the math. By
that section, the Mahant is required to
keep regular accounts of receipts of
such gifts and is entitled to spend the
same in accordance with the customs and
usages of the institution, for such
pathakanikas received by the Mahant are
gifts to the Mahant as the head of the
Math and therefore in truth gifts to the
Math. Obligations imposed upon the
Mahant to maintain regular accounts of
the receipts of pathakanikas of the
character defined in s.55 and to utilise
the same in accordance with the customs
and usages of the institution cannot be
regarded as an unreasonable restriction
upon the fundamental right of the
Mahant. A Mahant being bound to
discharge the duties of a trustee and
being answerable as such, a provision
requiring him to maintain accounts of
such pathakanikas would conduce to the
effective exercise of the control over
him and imposing an obligation to spend
the same in accordance with the customs
and usages of the institution is not
inconsistent with his position as mahant
even though he has a beneficial interest
therein. Section 55 as amended will not
apply to pathakanikas which are proved
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to be gifts personal to the Mahant.
Our attention was invited by
counsel for the appellants to cl. (g) of
s.52 (1) in which adoption of devices to
convert the income of the institution or
of the funds or properties thereof into
pathakanika is one of the grounds on
which a suit for removal of a Mahant may
life. But the expression ‘Pathakanika’
as used in s.52 (1) (g) appears to have
the larger meaning in which that
expression is traditionally understood.
In the context of s.52 (1) (g),
‘pathakania’ would mean personal gifts
to the Mahant. If the Mahant resorts to
devices to convert the income of the
institution or the funds of properties
thereof into personal gifts made to him
that would be improper conduct for which
he would be liable to be removed in a
suit under s.52. But under s.55 the
Legislature has expressly restricted the
meaning of the expression ‘pathakanika’
by using the words, ‘that is to say, any
gift of property made to him as the head
of the math’. We are therefore unable to
hold that the expression ‘pathakanika’
in s.55 means personal gifts and the
Legislature by enacting that section was
attempting to re-enact s.55 as it
originally stood in a different garb."
This Court further held that Padakanukas for the
purpose of Section 55, as amended, may not be gifts of
property made to a Mahant as head of the math. The Mahant is
required to keep regular accounts of receipts of such gifts.
He is entitled to spend the same in accordance with the
customs of the institution, for such Padakanukas received by
the Mahant are gifts to the Mahant as head of the math and,
therefore, in truth, gifts to the math. Obligations imposed
upon the Mahant to maintain regular accounts of the receipt
of the Padakanukas of the character defined under Section 55
and to utilise the same in accordance with the customs and
usages of the institution were held valid.
The Mahant being bound to discharge the duties of a
trustee and being answerable as such, a provision requiring
him to maintain accounts of such Padakanukas would conduce
to the effective exercise of control over him and imposing
an obligation to spend the same in accordance with the
customs and usages of the institution, is not inconsistent
with his position as a Mahant, even though he has beneficial
interest therein.
If the Mahant resorts to devices to convert the income
of the institution or of the funds or properties thereof
into personal gifts made to him, that would be improper
conduct for which he would be liable to be removed in a suit
under Section 52. The legislature by enacting that section
did not attempt to re-enact Section 55 to bring the
obligation of the Mahant, in a different garb. The same
ratio applies to the present case.
Sub-section (3) provides that in the case of gifts of
properties made to the mathadhipati as personal gifts but
gifts intended for the benefit of the math, he is enjoined
to maintain accounts of all the receipts and disbursement of
such gifts and to cause such accounts to be produced before
the Commissioner or anyone authorised by him in that behalf
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whenever so required. Right to manage and administer the
math includes right to use any gifts of money made to the
math as gift intended for the benefit of the math. In law,
he is enjoined as a trustee to account for the properties in
his possession and is responsible for due management which
is a secular act. It is seen that the report of Justice
Challa Kondaiah Commission had collected material that some
Mahants had resorted to corrupt practices by diverting the
funds of the math as Padakanukas and personal gifts and
utilised the same to lead immoral or luxurious life or
siphoning the income to the members of natural family to
which be belonged or on wine and women. The legislature on
consideration thereof felt it expedient to remedy the evil
and imposed a duty, which as trustee is enjoined on him.
Fastening an obligation on mathadhipati to maintain accounts
of the receipts of Padakanukas as personal gifts mae to the
mathadhipati and to see that the funds are properly utilised
for the purposes of the math in accordance with its objects
and propagation of Hindu dharma does not amount to
interference with religion. Equally, in respect of gifts of
properties or money made to the mathadhipati as gifts
intended for the benefit of the math, he is bound under law
as trustee, even without amendment to the Act, to render
accounts for the receipts and disbursement and cause the
accounts in that behalf produced from time to fime before
the Commissioner or any authorised person in that behalf,
whenever so required is part of administration of properties
of the math. Questions relating to administration of
properties relating to math or specific endowment are not
matters of religion under Art.26(b). They are secular
activities though connected with religion enjoined on
Mahant.
Section 50 of the Act which is corresponding provision
in the predecessor Act of 1966 requires the mathadhipati to
maintain accounts in the manner prescribed therein which is
a secular activity on the part of a mathadhipati. The
intervention of the legislature in that behalf is in the
interest of the math itself. He is, therefore, enjoined to
maintain accounts in the regular course of the
administration and maintenance of the math. Operation of
Section 50 is, therefore, a permissible statutory
intervention under Articles 25 (2)(a) and 26(b) and (d) of
the Constitution.
It is thus clear that none of Section 50 to 55 of the
Act offends Article 25 or 26 of the Constitution. The writ
petitions are accordingly dismissed but, in the
circumstances, without costs.