c ll DIGYADARSAN RA.JENDRA RAMDASS.Jl VARU v. STATE OF ANDHRA PRADESH & ANR. March 26, 1969 (J .. C,$HAH, V. RAMASWAMI AND AN, GROVER, JJ.] Andhra Pradesh Charitable and liindu Relinious Institutions anl. · Endowments Act (11 of 1966), s.,, 46 and 41-lf violative
of Arts. 14, 19(1)(/), 25(1) and 26(b) and (d) of the Constitution of Indill. On November 18, 1968, fourteen char¥es under '· 46(1) of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endow- ments Act, 1966, were preferred against the petitioner \Vho was. the Matha .. dhipathi . of Sri Swami Hathiramji
Math, Tirupathi-Thirumalla. Under '· 46(3) he was suspended from his office pending enquiry under s. 46(2), and under s. 47, the Assistant Commissioner, Endowments Department, was directed to attend to the day-to-day administration of the Math and it• endowments temporarily until the disposal of the inquiry. The peti- tioner challenged the constitutional validity of ss. 46 and 47 as violative of his fundamental rights under Arts. 14, !9(1)(f), 25(1) and 26(b) and ( d), in a petition under A rt. 3 2.
HELD : (I) A mathadhipathi is the head and superior of a spiritual fraternity and the purpose of a math is to encourage and foster 'Spiritual training by the maintenance of a competent line of teachers who could impart religious instruction to the disciples and followers of the math and ro strengthen the doctrines of the particular school or order of which they prdfess to be adherents.
By virtue of his office he is under an obligation to di!charge his duties as a trustee and is answerable as such.. He enjoys large poweri for the benefit of the institution of which he is the head. He is to incur expenditure for the math. that is, for carrying on religious worship, for the disciples, and for maintaining the dignity of his office. If he cannot perform his duties either as a spiritual or a temporal head or cannot properly administer or manage
the trust property or has been guilty of breach of trust o·r wilful default or lead:; an immoral life, action can be taken against him under s. 46(1). The power is given to the Commissioner to make an inquiry into or try the allegations or charges against him and to order his removal if the charges are established. Under s. 104 of the Act, the proceedings before the Commissioner are quasi- judicial, and if- he makes an order of rem6val, it can be challenged in a
suit in a court of law with a right of appeal to the High Court. As regards the power to suspend under s. 46(3), the power of suspension, pending inquiry, is a necessary and reasonable part of the procedure. If the matha- dh1pathi is allowed to function during the pendency of an enquiry he may tamper with the evidence against him and the purpose o[ the enquiry may be defeated. There'fore, the restrictions imposed by the impugned provi- "Sions are reasonable and in the intereo:;t of general publ;c and do nf'• violate Arts. 14 and 19(1) (f). [109 F-G; 111 C-F; 112 B-E]. The Commissioner,
Hindu Relit::iou'! Endow1nents. Mndraf; v. Sr. Lakshmindra Thirt/1a Swnmiar of Shirur Mutt. [19541 S.C.R. 1005 end H. H. Sudhundra Thirtha Swa1niar v. Co1n111issioner for Hindu Religiou.' and Charitable_ Endow:nents. Mysore, [196Jl Supp. 2 S.C.R. 30~, referred· to.
[ 1970) I S.C.R (2) Under Ari. 25(1 ), the petitioner has a fundamental right to prac- fae and propagate his religion freely, but, by the Commissioner exercis- ing his poweo under s. 4 7 or the Act, the petitioner had not been prohi- bited or debarred 'from professina. practisina and propagating hts religion. He could enter the Math and exercise the fundamental right. (113 E] (3) There is nothing in ss. 46 and 47 which
empower the Commis- sioner to interfere with the autonomy of the rcli~ious denomination in the 111attcr of deciding as to what rites and ceremonies are essential according to the tenets of the religion the denomination
professes or practises. Neither the Commissioner nor the 1'..ssistant Commissioner who bas been put in charge of the day-lo-day affairs have interfered in such matters. Therefore, there is no contravention di Art. 26(b). Under Art. 26(dl, a relipous denomination or itJ representative has the fundamental right to administer property accordin~ to law. The provisions of s. 47 do not
take away the right of admimstration from the hands of a reliaioU1 deno- ·mination a!logether and vest ii for all time in a person or authority who is not entitled to exercise that riaht under the custom prevailina in the math; nor could such power be exercbed without any j11>tlfyin1 necessity. 'lbe aeclion deals only with a situation where there is a temporary vaca"!'r for any (jf the reasons stated therein u
&ho because the mathadhipalht bu been suspended pending an enquiry under 1. 46, that is, the Comminloner can appoint some one to carry on !he administration of the math and its .endowments only when the conditiom of s. 47 are satis8ed. (113 F-H; 114 A-DJ
In the present case, the Assiatant Commissioner was appointed becaU>e of the enquiry which was pending against the petitioner, in which, serious charges of misappropriation and defalcation of trust funds and
leading an immoral life were beina investigated. (114 DJ Shirur Math case (1954] S.C.R. 1005, referred to ORIGINAL Jua1sorcr10N: Writ Petition No. 347 of 1968. Petition under Art. 32 of the CQDStitution of India for the enforcement of fundamental rights.
Kanak Ghosh and B. Datta. for the appellant. P. Ram Redd,v, A. V. V. Nair and P. Parameshwar Rao, for the respondent. The Judgment of the Court was delivered by Grover, J. This is a petition under Art. 32 of the Constitu- tion challenging, inter alia, the constitutionality of ss. 46 and 4 7 of the Andhra Pradesh Charitable and Hindu Religious Institu- tions and Endowments Act, 1966 (Act No. 17 of 1966), herein- after called the "Act" and for issuance of a writ in the nature of mandamus or other appropriate writs and di=tions to the Com- missioner of Hindu Religious and Charitable Endowments here- inafter called the "Commissioner.", prohibiting him from ~ercis ing his powers or taking action under the aforesata sections. 'fhe petitioner claims to be tile Mathadhipathi of Shri Swami Hathiramji Math Tripathi-Thirumalla in the State of Andhra Pra- desh. It is stated that this institution was founded several centu- ries ago and is one of the renowned Maths in India. Hundreds It
c DIGYADARSAN v. A. P. STATE (Grover, J.) of Sadhus visit the Math throughout the Y.ear and ~t. ~ the duty of the Mahant as its religious head to provide the V1S1tmg Sadhus with food and shelter and to perfol1Il all religious d_uties with · regard to the celebration of Hindu festivals, propagatiOn ~f. the cult of Shri Swami Hathiramji and performance of other reli~ous functions. It is alleged that Mahant Chettandoss, the previous incumbent died on March 18, 1962. On March 24, 1962 the
Commissioner took charge of the Math and its properties under s. 53 of the Andhra Pradesh (andlfra Areas) HindiI Religious. & Charitat>Je Endowments Act, 1951, Act No. 19 of 1951, herem- after referred to as the "Repealed Act", The petitioner filed a suit on March 26, 1962 in the court of the Subordinate Judge, Chittoor for a declaration· that he was the rightful successor. The CommiSll1oner was imp leaded as a party to the suit. He also filed a revisional application under s. 92 of the repealed Act to fhe State Government.
The Government disposed of the revisional l!flPli- cation on June 5, 1962. It appointed tl).e petitioner as the in- terim Mahant subject to certain conditions which ne(ld not be mentioned.
Before this order was made the ~titioner withdrew the suit filed by him in April 1962. DevenifraoosS, ~ho was another claimant but who was a minor, filed a writ petition in the High Court challenging t)le aoove order of the Government but the same was rejected by the division Benell. Devendradoss then filed certain suits for a declaration of his .title.
On August 22, 1964, the Commissioner made an order directing the petitioner io show cause why the previous order appointing him as an interim Mahant be not recalled. According to the petitioner this was
done because the State Government started claiming, contrary to the rule and custom which prevailed in the Math, that the amounts received on account otPadakanukas (personiil offerings) should be paid to the Government and not taken by the Mahant. This order was challenged by the petitioner by means of a writ petitiOJ:\ in the High Court. The High Court issued a stay order which was later on clarified to mean that the State Government was free ·to take such further action under the Act as it consi- dered necessary. On September 9, 1965 the State Government framed charges against the petitioner and directed him ·to furnish ~is expJanation. The petitioner was placed under suspension with 1IDmed1ate effect. It was further directed that the Assistant Com- missioner, Tirupathi should take charge of the Math and its af- fairs. Meanwhile another claimant Bhagwantdoss filed a suit on Septem~ 2?:
196~, claiming title ·to the gaddi in his own right. The writ petition which had been file<! by the petitioner was allow- ed _by the High Court on November 8, 1966. · The matter ulti- mately came up in appeal to this Court, the judgment being – H
reported in Secretary, Home (Endowments). Andhra Pradesh v. Digyadarsam Rajindra Ram Dasjee('). The judgment of the High 1(1967) 3 S.C.R. 891. L 12SupCI/69-8 SUPREME COutT REPORTS
[1970] I S.C.R. Court was affirmed. The High Court had held that the petitioner had succeeded to the office of the Mahant on the death of Chetan- doss on March 18, 1962 in his own right. This Court cc
~urred in that view and observed that the mere circumstance that the Government had also passed an order appointing him as the in- terim Mabant could nQt take away his right to function as a trustee on the basis of his original right.
It followed that the Government had no jurisdiction to pass an order placing him under suspension as that virtually amounted to a removal of the trustee of the Math which could only be done in the manner pro- vided by s. 52 of the repealed Act.
The Act received the assent of the President on December 6, 1966 and was enforced with effect from January 27, 1967. On May 30, 1967 the petitioner filed a petition under Art. 226 of the Constitution in the High Court for declaring the present im- punged provisions of the Act as ultra vlres. That petition was dismissed in limine as premature.
An appeal to the Letters Patent bench failed. On coming to know that certain orders were going to be passed against the petitioner whereby charges on various matters were to be preferred and an inquiry made and that the suspension of the petitioner from Mahantship was going to be ordered, the present petition was filed under Art. 32 of the Con- stitution in October 1968. In this petition, apart from challenging the provisions of the Act a case of ma/a fide action has been sought to be made out against the respondent. In the order which was made by the Gove'111Ilent on November 18, 1968, as many as 14 charges have bet-~ ·eferred against the petitioner and his sus- pension has been du., 0rdered. The Assistant Commissioner En- dowments Department has been directed to attend to the day-to- day administration of the Math temporarily and its Endowments until the disposal of the inquiry .
Now the Act has been enacted to consolidate and amend the law relating to the armmistration and governance of charitable and Hindu religious institutions and endowments in the State of Andhra Pradesh.
Chapter I contains the definitions of various expressions used in the Act including the word "Commissioner". Chapter II provides for the appointment of Commissioner, Joint Commissioners etc., and ~ives their powers and functions. Chap- ter III deals with administration and management of charitable and Hindu religious institutions and endowments.
Chapter IV provides for registration of such institutions and endowments. Section 42 in Chapter V defines the word ''mathadhipathi" to mean any person whether known as mohant or by any other name,
in whom the administration of a math or specific endowment at- tached to a math are vested. Sections 46 and 47 are in the fol- lowing terms : "46. (I) The Commissioner may suo motu or on an
c 0 – II c 1) DIGYADARSAN v. A. P. STATE (Grover, !.) 10 7 application of two or more p~sons having ~ter~t, ini- tiate proceedings for removmg a mathadh1path1 or !l trustee of a specific endowment attached to a math, 1f
h&- (a) is of unsound mind; (b) is suffering from any physical or mental def~ or infirmity which renders him unfit to be a mathadhi- pathi or such trustee; (c) has ceased to profess the Hindu religion or the
tenets of the math; ( d) has been sente11ced for any offence involving moral turpitude, such sentence not having been revers- ed; (e) is guilty of breach of trust or misappropriation
in respect of any of the properties of the math; (f) commits persistent and wilful default in the exer- cise of his powers or performance of his functions under this Act; (g) violates any of the restrictions imposed or prac-
tices enjoined by the custom, usage or the tenels of the math, in relation to his personal conduct, such as celi- bacy, renunciation and the like; (h) leads an immoral life. (2) The Commissioner shall frrunevlt charge on any
of the grounds specified in sub-section (1) agamst the mathadhipathi or trustee concerned and give him an opportunity of meeting such charge, of testing the evi- dence adduced and of adducing evidence in his favour.
After considering the evidence adduced and othet ma- terial before him, the Commissioner may, by order exo- nerate the mathadhipathi or trustee, or remove him. Every such order shall state the charge framed against the . mathadhipathi or the .trustee, his explanati0tn and the
finding on such charge together with the reasons therefor; Provided that in ·the case of a math or specific en- dowment attached thereto whose annual income exceeds rupees one lakh, the order of removal passed by the
Commissioner against the mathadhipati or trustee shall not take effect unless it is confirnled by the Govern- ment, (3) Pending the passing of an order under sub-section (2) the Commissioner may suspend the m:athadhft)athi
· or the trustee. [1970] 1 S.C.R, (4) (a) Any mathadhipathi or trustee aggrieved by an enquiry in this behalf that an arrangement for the (2) may, within ninety days from the date of receipt of
such order, institute a suit in the court against such or- der. (b) An appeal shall lie to the High Court within ninety days from the date of a decree .or order of the court in such suit.
4 7. (I) Where a temporary vacancy occurs in the office of the mathadhipathi and there is dispute In regard to the right of succession to such office, or where the mathadhipathi is a minor ana has no guardian fit and
willing to act as guardian, or where the mathadhipathi is under suspension under sub-section (3) of section 46, the Commissioner shall, if he is satisfied after· making an inquiry in this bchaH that an arrangement for
the administration of the math and its endowments or of the specific endowments, as the case may be, is necessary, make such arrangement, as he thinks fit until the disabilty of the mathadhipathi ceases or another matha·
dhipathi succeeds to the office, as the case may be. (2) In making any such arrangement, the Commis- sioner shall have due regard to the claims, if any, of the disciples of the math.
(3) ….•…•……•••••.•••• " Section 83 confers powers on the Government to call for and examine the record of the Commissioner ……..•. in respect of any proceedings not being a proceeding in respect of which a surt or an appeal or application or reference to a court is provided by the Act, to satisfy themselves as to the regularity of such pro- ceedings or the correctness, legality or propriety of any decision or order passed therein and if, in any case, it appears to the Government that such decision or order should be modified, an- nulled, reversed or remitted for consideration they may pass or- ders accordingly.
Under s. 104 where a Commissioner ….. . makes an enquiry or hears an appeal under the Act, the in- quiry has to be made and the appeal has to be heard as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits or the hearing of appeals and the provisions of the Indian Evidence Act and the Indian Oaths Act have also been made applicable.
Learned counsel for the petitioner has assailed the constitu- tionality of s. 46 although he has sought to read s. 47 along with . it so as to establish that tile combined effect of the provisions con- c
c DIGYADARSAN v. A. P. STATE (Grover, 1.) tained in both the sections would be hit by Arts. 14, 19(1)(f), 25, 26 and 31 of the Cov.stitution. Before the submissions, which have been made, are examined reference may be made to The
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thz'rtha Swamiar of Sri Shirur Mutt(') in which the constitutionality of various provisions of the repealed Act was challenged. That case related to the Shirur Math which was one of the 8 maths situate at Udipi in the district of South Kanara. The Hindu Religious Endowments Board functioning under the Madras Hindu Religious Endowments Act 1927 had taken action to frame a scheme for the administratfon of the affairs of the math. The challenge in the courts was confined to the constitu- tional validity of the repealed Act.
B. K. Mukherjea, J., (as he then was) dealt exhaustively with the rights of a Mahant to hold office as well as enjoy the property of the institution. The fol- lowing observations at pp. 1019, 1020 are noteworthy:
"As said above, the iiigredients of both office and property, of duties and personru interest are blended together in the rights of a Mahant and the Mahant has the right to enjoy this property or beneficial intere8t so long as he is entitled to hold his office. To take away
this beneficial interest and leave him merely to the;lis- charge of his duties would be to destroy his character as a Mah ant altogether. It is true that the beneficial interest which he enjoys is appurtenant to his duties and
as he is in charge of a public institution, reasonable restrictions caµ always'be placed upon his rights m the interest of the public. But the restrictions would cease to be reasonable if they are cafculated to mike him un-
fit to discharge the duties which he is called upon to discharge. A Mahant's duty is not simply to manage the temporalities of a Math. He is the head and superior of spritual fratemrity and the purpose of Math is to en-
courage and foster spiritual training by maintenance of :1 comp~tent line of t.ea~hers who cowd impart religious mstructions to the d1sc1ples and followers of the Math and try to strengthen the doctrines of the particular
sch.ool or order, of which they profess to be adherents. This purpose cannot be served if the restrictions are such l!8 would bring the Mathadhipathi down to the level of a servant under the State department. It is from this
standpoint that the reasonableness of the restrfctions should be judged." It was held that the Mahant was entitled to claim the protection of Art. 19(1)(f). The same Shirur Math figured in another case (I) (1954) S. C. R. 1005.
SUPREME COUllT REPORTS which came up to this Court and the decision in which is rep<l{t- .A. ed in H. H. Sudhundra Thirtha Swamiar v. Commissioner for Hindu Religious & Charitable Endowments, Mysore('). There
the constitutionality of s. 52(1)(f) of the repealed Act, as amend- ed, was unsuccessfully assailed. The scheme of that section was similar to s. 92 of the Code of Civil Procedure. The Commis- sioner or any two or more persons having interest or having ob- tained the consent in writing of the Commissioner could institute a suit in the court to obtain a decree for removing a trustee of a math or a specific endowment attached to a math for any one or more reasons given in clauses (a) to (f) which were similar to clauses (a) to (0 of sub-s. (1) of s. 46 of the Act. Whereas pre- viously. the Commissioner could only institute a suit in a court, he has now been empowered under the Act by s. 46 io initiate pro- ceedings himself for removing a mathadhipathi on the grounds mentioned in clauses (a) to (h). Clauses (g) and (h) are new and sub-s. (2) _gives the procedure for making the inquiry.
If the matnadhipathi is aggrieved by the order made by the Commis- sioner, he has been given the right to institute a suit against such order in the court by sub-s. ( 4). The difference, in other words, is tha_t previously the removal could be ordered only by the court but' under s. 46 the Commissioner can order the removal after following the procedure-laid down and his order is final except that it can be challenged by means of a suit by the mathadhipathi. It also requires confirmation by the Government where the annual income of the math exceeds rupees one lakh. An additional power has been conferred on the Commissioner by sub-s. (3) to suspend the mathadhipathi pending the passing Of an .order under sub-s. (2).
The view which was taken in the above case was that s. 52(1) (f) of the repealed Act did not in effect seek to cut down the authority of the Mahan! which was traditionally recognized and that the said provision which authorised the inStitution of a suit for removal of a Mahant where he was found to have wasted the property of the math or applied such funds or property for pur- poses wholly unconnected with the institution did not amount to an unreasonable restriction upon the exercise of the rights of the Mahan!.
On behalf of the petitioner a strenuous attempt has been made to show that s. 46 of the Act is quite different from its counterpart contained in the repealed Act, namely, s. 52 and that the powers which have been conferred are clearly violative of the fundamental right to hold the office of the Mahant as also the property ol the math. In H. H. Sudhundra Thirtha Swa- miar:s<') c~ it has been e~ph!15ised th~t the Mahant by virtue of hts office ts under an obhgatton to dtseharge the duties as a (I) [1963) Supp, 2 S. C.R. 302.
p c DIGYADARSAN v. A. P. STATE (Grover, J.) 11 l trustee and is answerable as such., He enjoys large pow~rs fo_r the benefit of the institution of which he is the head. He ts to mcur expenditure f<;>r _the math i.e. fo~ c~rrying on ~he. religio1;J_S wor- ship for the d1sc1ples and for mamtammg the d1gmty of his office but the property is attached to the office at:d th~ Mahant ca~ot incur expenditure,.for personal l~ury or O~Je~ts 1~co~g~ou~ with his position as a Maha~t. Keepmg all this m v1~w 1~ JS difficult to see how the provisions of s. 46 would be v10lat1ve of Art. 19(1)(f) of the Constitution. The grounds on which his removal as mathadhipathy can be ordered have been specifically provided and no exception has been or can be taken to them. The main attar.k is based on the power given to the Commissioner instead of the court to make an inquiry into or try the allegations or charges against the Mahant ;md order ms removal if suc.)1 charges are estabhshed. It is not possible to see how a procedural change of this nature can be regarded as contravening either Art. 19(1)(f) or Art. 14 of the Constitution which is the other Article which has beeµ pressed into service.
The procedure which has been laid down makes all the proceedings before the Commissioner quasi-judicial. This is particularly so when the provisions of s. 104 of the Act are kept in view.
Moreover if any order of removal is made that can be challenged in a court of law and there is a further right of appeal to the High Court. Learned com.sel for the petitioner had finally to build his arugment on the provisions of sub-s. (3) which give power to the Commissioner to suspend the mathadhipathi during the pendency of an inquiry and before any order in the matter of removal is made:. It is pointed out that such suspension would seriously interfere with the numerous duties wnich a mathadhipathi has to perform as the head of a spiritual fraternity. The petitioner, in this manner, has been debarred from not only managing the institution but also from carrying out the essential work which. according to the tenets and custom of the fraternity he is under an obligation to do. For instance he cannot look after the Sadhus and other ' discip~es who constantly visit the math and come for religious in· struct10n there nor can he preside over religious functions and other perio4ical festivities which are held in the seat of the math. Thus, it is urged, that there is a clear violation of Art. 19(1)(£) which guarantees the petitioner"s right to hold and enjoy the pro- perty. apart from the interference with his right to practise and propagate religion and manage the affairs of the math in matters of reli.gio!l which rights are guaranteed by Arts. 25 and 26 of the Conslitut10n.
As regards Art. 19 ( 1 )( f) it has to be seen whether the res- trictions which have been imposed by the impugned provisions of the Act are reasonable and are in the interest of the general public. There can be little or no doubt that if a mathadhipathi SUPREME COUIT .REPORTS
( 1970] I S.C.R. is of an unsound mind or suffers from any physical or mental defect or infirmity or has ceased to profess Hindu religion or the tenets of the math or if his case falls within clauses (d) to (h) of s. 46(1) his removal would be in the interest of the general public. A mathadhipathi cannot possibly perform his duties either as a spiritual or a temporal head nor can be properly administer or manage the trust property if he falls within the categories men- honed in clauses (a) to (d) or has been guilty of breach of trust or wilful default etc. or leads an immoral life (vide clauses (e) to (h) of s. 46(1).
Even under the Civil Procedure Code his removal could have been ordered in proceedings under s. 92 for similar reasons. The suspension of a mathadhipathi, during the inquiry, is a necessary and reasonable part of the procedure which has been prescribed by s. 46. If he is allowed to function during the pcn- dency of an inquiry the entire purpose of the enquiry might be defeated. The mathadhipathi, may, during the pcndency of the inquiry, do away with most of the evidence or tamper with the books of account or otherwise commit acts of misappropriation and defalcation in respect of the pr9pcrties of the m~th. It is essential, therefore, in these circumstances to make a provision for suspending him till the enquiry condudes and an order is made either exonerating him or directing his removal.
c On the question whether ss. 46 and 47 of the Act contravene Articles 25 and 26, a good deal of reliance has been placed on the observations in the first Shirur Math(') case. Mukherjea, J.
{as he then was) delivering the judgment of the court had exa- mined the scope of the language of Arts. 25 and 26. It was indicated by him that freedom of religion in our Constitution is not confined to rrligious beliefs only; it _extends to religious prac- tice a~ well as subject to the restrictions which the Constitution itself has laid down.
Under Art. 26(b), therefore, -a reiigious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies arc essential according to the tenets of the religion and no outside authority has any jurisdiction to interfere with its decision in such matters. Moreover under Art. 26(d) it is the fundamental righfof a reli- gious denomination or its representative to administer its property in accordance with law; an.d the law, therefore, must leave the right of administration to the religious denomination itself sub- ject to such restrictions and regulations as it might choose to irn~. It was .f'!rthe~ laid down that a law whi~h takes away the nght of adm1mstrat1on from the hands of a religious denomi- nation altogether and vests it in any other authority would amount to a violation of the right guaranteed under clause ( d) of Art. (I) (19S4) Supp.
S. C. R. 1005. c r DIGYADARSAN v. A. P. STATE (Graver, 1.) 26. Now under s. 4 7 of the Act where a mathadhipathi is under suspension the Commissioner can make such arrangement as he thinks fit for the administration of the math until another matha- dhipathi succeeds to the office and in making such arrangement he ha~ to have due regard to the claims of the disciples of the math. It is maintained on behalf of the petitioner that the ap- pointment of Assistant Commissioner, Endowm,ents Department, Tirupathi as the day to-day administrator of the math and its endowment as a two-fold effect.
The first is that the complete autonomy which a religious denomination like the math in ques- tion enjoys in the matter of observance_ of rights and ceremonies essential to the tenets of the religion has been interfered with. The second is that the right of administration has bef:ll1 ·altogether taken away from the hands of the religious denomination by vesting it in the Assis~ant Commissioner. This clearly contravenes the provisions of clauses (b) and (d) of Art. 26 within the rule laid down in the first Shirur Math case. By doing so in exercise of the powers under s. 4 7 the Commissioner has also debarred the petitioner from practising and propagating religion freely which he is entitled to do under Art. 25(1).
The attack on the ground of violation of Art. '25(1) can be . disposed of quite briefly. It has nowhere been established that the petitioner has been prohibited or debarred from professing, practising and propagating his religion. A good deal of material has been placed on the record to show that the entire math is being guarded by police constables but that does not mean that the petitioner cannot be allowed to enter the math premises and exercise the fundamental right conferred by Art. 25(1) of the Constitution. As regards he contraventiOlll of clauses (b) and (d) of- Art. 26 there is nothing in ss. 46 and 47 wliich emp0wers the Commissioner to interfere with the autonomy o"f the religious denomination in the matter of deciding as to what rites and cere- monies are essential according to the tenets of the religion the denomination professes or practises nor has it been shown that any such order has been made by the Commissioner or that the Assistant Commissioner who has been p11t in charge of the day to-day affairs is interfering in such matters. Section 4 7 of the Act deals only with a situation where there is a temp<>rary vacancy in the office of the mathadhipathi by reason of any dispute in regard to the _right of succession to the office or the other reasons stated therein as also because the mathadhpathi has oeen suspend- ed pending an inquiry under s. 46. Its provisions do not take away t.he right of administration from ~he hands of a religious denomination altogether and vest it for ~imes in a person or authority who is not entitled to exercise th
right under the cus- tomary rule and custom prevailing in the math. In the first Shirur math case, s. 56 of the repealed Act oefore i& amendment by I 14 SUPREME COUllT REPORTS [1970] l S.C.R.
Act 12 of 1954 was struck down as power had been given to the Commissioner to require the trustee to appoint a manager for the administration of the secular affairs of the institution and the Commissioner himself could al<;0 make the appointment.
It was pointed out that this power could be exercised at the mere option of the Commissioner without any justifying necessity whatsoever and no pre-requisites like mismanagement of property or maladmi- nistration of trust funds were necessary to enable the trustee to exercise such drastic power. The effect of the section really was th~ the Commissioner was at liberty, at any moment, to deprive the Mahant of his right to administer the trust property even if there was no negligence or maladministration on his part. Such a restriction was held to be opposed to the provisions of Art. 26 ( d) of the Constitution. Section 4 7 of the Act is not in pari materia with s. 56 of the repealed Act. On the contrary s. 47 indicates quite clearly the conditions and situations in which the Commissioner can appoint someone to carry on the administra- tion of the math and its endowments. In the present case, the Assistant Commi.ssioner has been appointed as a day to-day admi- nistrator because of the inquiry which is pending against the peti- tioner and in which serious charges of misappropriation and de- falcation of trust funds and leading an immoral life arc being investigated.
It cannot be said that s. 47 would be hit by Art. – 26(d) of the Constitution as the powers under it will be exercised, inter a/ia, when mismanagement of property or maladministration of trust funds are involved.
Counsel for the petitioner has not made any serious attempt to argue that in the view that we are inclined to take there would be any contravention of Art. 31 (I) of the Constitution. He has, however, pressed for the petitioner being allowed to take the padakanukas which are receivable by the Maham of which he will keep an account as was directed by this Court when disposing of· the stay petition on December 13, 1968.
Counsel for the respondent agrees to this and has also agreed to keep accounts of whatever amount is spent on feeding the sadhus and on the management of the math property. He has further given an un- dertaking that the inquiry which is being conducted under s. 46 of the Act will be concluded within a period of three months. It may be made clear that the Assistant Commissioner who is in charge of the day-to-day administration temporarily of the math and its endowments shall be fully entitled to take necessary steps for recovery of all debts and claims which could have been recover. ed by the Mahant from various debtors etc.
The writ petition, however, fails and it is dismissed, but in view of the entire circumstances we make no order as to costs. 'V.P.S. Petition dismissed. c