SRI PERARULALA RAMANUJA JEER SWAMIGAL Vs. TSPICHU AYYANGAR

JUDGEMENT

(1.) 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. Under Section 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 under Section 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? Under Section 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 under Section 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. Under Section 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 under Section 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 Secs.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 under Section 63. The order of rejection which is passed after the preliminary enquiry on the petition under Section 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 under Section 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.

(2.) 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.

(3.) In support of this rule reliance is placed on the observations of Mellish, L.J., in Ex parte Wier (1871) 6 Ch. A. 875 at 879, 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.