KMUKUNDARAYA SHENOY Vs. STATE OF MYSORE AND

JUDGEMENT

(1.) The petitioners in these petitions are the managing members of two temples viz. (1) Konkanimata Venkatramana Temple and (2) Halemarigudi Temple. It is not disputed before us that these two temples were founded, owned and administered by a community called Gowd Saraswath Brahmin community of Kaup Peta. Administration of these temples, prior to the date hereinafter mentioned, used to be conducted in accordance with two schemes which were framed under two decrees of the court of the Subordinate Judge South Kanara, both passed in the year 1921. Under the said schemes the section of Gowd Saraswath Brahmin community residing at Kaup Peta was to elect a Board consisting of five members and the management of moveable and immovable properties of the said temples was to vest in the said Board. The said section of Gowd Saraswath was also to elect a committee consisting of five members who will supervise the work of the board. The schemes laid down the qualifications required of the persons to be elected as members of the board and the general qualifications required for voting at such elections. These voters were to assemble once a year on the next day of Ati Mari Puja and at that meeting members of the board shall read to the voters the statement of the annual income and expenditure which shall have been prepared giving particulars under different heads. These, in broad out-line, are the provisions of the schemes framed by the Court for the management of these two temples. It would appear from the provisions of the said schemes that the Gowd Saraswath Brahmin Community of Kaup Peta carried on the management of the said temples and of their properties through the board and the supervisory committee both of whom used to be elected by the said Community.

(2.) On 26th August, 1951 the Madras Hindu Religious and Charitable Endowments Act (Act 19 of 1951) was passed. The Act created a hierarchy of authorities, i.e., the State Government, the Commissioner, Deputy Commissioner, the Assistant Commissioner and the Area Committee and vested the superintendence and control of the administration of all religious endowments in the commissioner or the authorities mentioned. In these petitions the petitioners are challenging the validity of Ss. 39, 41, 42, 18, 44, 45, 50, 71(4), 103(3)(ii) of the said Act and the ground on which most of the said sections are so challenged is that they offend the provisions of Art. 26 of the Constitution. In other words, it is contended on behalf of the petitioners that because of these sections the power and control of the Gowd Saraswath Community of the Kaup Peta, which is a religious denomination has been superseded and transferred to the authorities. mentioned in the said Act. At this stage it should be mentioned that it was not disputed before us that this Gowd Saraswath Brahmin Community of Kaup Peta is a religious denomination. The main contention urged on behalf of the State was that the said sections merely impose reasonable restrictions on the administration of the affairs of the said institutions by the religious denomination or its representative and did not take away the whole right of administration from the hands of the said denomination.

(3.) In the case of Commissioner, Hindu Religious Endowments v. Lakshmindra Thirtha Swamiar, AIR 1954 AC 282, their Lordships of the Supreme court held that under Art. 26(d) it is the fundamental right of a religious denomination or its representative to administer its properties in accordance with law and the law therefore must leave the right administration to the religious denomination itself subject to such restrictions and regulations as it might choose to impose. Their Lordship, however, made it clear that a law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under Art. 26. The question, therefore, which we have to decide in this case so far as these sections are concerned is whether or not as a result of these provisions the right of administration of these two institutions has been taken away from the hands of the religious denomination altogether and has vested in the authorities mentioned in the said Act. In order to determine this question it would be necessary to scrutinise each one of the said provisions, separately. Before doing that I would mention that the petitioners before us are also challenging S. 76(5) of the said Act and R. (1) framed under S. 76(1) of the Act. The challenge to these sections is made on different grounds which I shall mention when I deal with the same. I shall first take up the sections of the Act which are challenged on the ground that they violate the provisions of Art. 26 of the Constitution.