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Judgment
Veeraswami, J.—The main question in this writ petition relates to the construction and scope of S. 33(1), in the context of S. 14(3), of the Madras Hindu Religious and Charitable Endowments Act, 1959. The respondent, who is the Assistant Commissioner, Hindu Religious and Charitable Endowments (Adm), Tirunelveli, by notice dated 30th July 1862, served on the petitioner, who is the head of Sri Vanamamalai Mutt, intimated that he would inspect on 6th August 1962, at a specified hour and at the premises of the Mutt the various accounts, registers, audit reports, cash balances, securities negotiable instruments, accounts relating to Pada Kanikkais and also the lands and crops in three specified villages and other villages, and that the petitioner himself or through his men should render assistance to the respondent and his men for the purpose. The petitioner, by his communication dated 4th August 1962, entered his protest to the proposed inspection and questioned his powers to do it. He took up the position that the respondent had not been deputed by the Commissioner to make any inspection, and that unless the respondent had been deputed, he had no right to call upon him to give inspection of the documents as well as the moveable and immoveable properties referred to in the notice. The petitioner further stated that there had been correspondence relating to the Swami Sannadhi accounts between the two and under the law, the demand for inspection of the Pada Kanikkai accounts was neither legal nor bona fide. The petitioner wound up his reply stating that if the respondent wished to take further steps in the matter he would be constrained to move this Court for a writ to quash the proceedings proposed by the respondent. The respondent in his turn made a detailed reply dated 4th August 1962. There he explained that on his view of S. 33 (1), he had himself the power to make the inspection, that in any case, he had the authority to do so under a notification, made by the Commissioner in exercise of his power under S. 14 (3), and that so far as the Pada Kanikkai accounts were concerned, the purpose of his inspection was only to see whether funds belonging to the mutt had been misapplied under the name of Pada Kanikkai. It appears that on 6th August 1962, as notified, the respondent attempted to inspect. According to him, be having been resisted by the petitioner in the discharge of his official duties, a complaint has been laid against the petitioner for alleged offences under Ss. 175 and 187, I.P.C. In the circumstances, the petitioner has moved this Court under Art. 226 of the Constitution to quash the notice of the respondent dated 30th July 1962.
Mr. R. Gopalaswami Iyengar, for the petitioner, contends that S. 33 (1) is a special provision which is in consonance with the policy of the Act to commit the jurisdiction over mutts to the Commissioner, that what it empowers the Commissioner is by himself to inspect or depute in each case an officer under the Act or any other person for inspection, and that it does not admit of a general delegation under S. 14 (3), of his powers of inspection. Learned Counsel further argues that the contention for the respondent that he is himself given the power of inspection under S. 33 (1), cannot be supported. It is also said that, in any case, there is no power under the Act to inspect accounts relating to Pada Kanikkais. Lastly, the argument is that the proposed inspection by the respondent is not bona fide as will be evident from the fact that the respondent declined to allow any time to the petitioner to move this Court for proper directions, and instead he insisted upon proceeding with the inspection, and later resorted to the criminal Court with the complaint.
To appreciate the contention which bears on the construction of S. 33 (1), the other relevant provisions of the Act may first be briefly noticed. Madras Act XXII of 1959, which repealed the earlier Act of 1951, in substance re-enacted practically all its provisions with certain additions. The Act applies to all religious institutions. This expression is defined to include a Math. For purposes of administration of the Act three principal classes of officers, in addition to the Area Committees, are contemplated, namely, the Commissioner, the Deputy Commissioners and the Assistant Commissioners. The Act, by its several provisions, specify the powers of each of these officers. At the top of the hierarchy is the Commissioner who is entrusted with the general power to call for records and pass orders under S. 21. Chapter III contains general provisions relating to religious institutions. Unless otherwise provided, these provisions apply also to Mutts. S. 24 provides for power of the categories of officers to enter religious institutions for the purpose of exercising any of the powers conferred upon any of them by the Act. S. 29 relates to the preparation of the registers for religious institutions, containing information as to the origin and history of the institution, particulars of the scheme of administration and of dittam or scale of expenditure, the moveables including jewellery and other endowments and title deeds and other documents of the institution, and such other particulars as may be required by the Commissioner. Each such register is required to be verified by the trustee and submitted to the concerned authorities having jurisdiction over the institution. S. 30 provides for annual verification of the register and the following section for submission of register once in ten years. It will be a consolidated one incorporating therein all alterations and omissions and additions made earlier. The trustee of a religious institution, which will include also a Mahant like the petitioner, is obliged under S. 32 (1) to furnish to the Commissioner such accounts, reports, returns or other information relating to the institution, its funds, property or moneys and the appropriation thereof as the Commissioner may require at such time and in such form as be may direct. This Sub-Section is general in terms and would appear to apply to all religious institutions including Mutts. Sub-S. (2) of the section gives power to the Assistant Commissioner to require a trustee of a religious institution to furnish to him its accounts, returns, reports or other information relating to its administration, its fund or property or income and of the appropriation thereof, at the time and manner he specifies. But this power is confined to the area within the jurisdiction of the Area Committee and further does not extend to a Mutt. Then comes S. 33, which is captioned as "inspection of property and documents". It is necessary to set out Sub-S. (1) of this section. It rune:
(1). The Commissioner or any officer or other person deputed by the Commissioner in this behalf, and in the case of institutions in respect of which the Area Committee exercises powers and discharges duties any member of the Committee authorised by it in this behalf, may, with due regard to the religious practice or usage of the institution, inspect all moveable and immoveable property belonging to, and all records, correspondence, plans, accounts and other documents relating to any religious institution.
Sub-S. (2) contains a directive to the trustee of the institution concerned to render the necessary assistance and facilities in regard to any inspection made under Sub-S. (1). Sub-S. (3) confers on the Commissioner powers of surcharge in case, where on the inspection report, misapplication of the funds is provided after adopting the prescribed procedure. Ss. 45 to 58 in Ch. III do not apply to a Mutt. Ch. IV contains four sections which exclusively apply to mutts. The Chapter provides for power or removal of a trustee of a mutt or specific endowment attached to it, for arrangements when vacancies occur, and fixation of standard scales of expenditure. The last section, S. 62, deals with the power to spend Pada Kanikkais. This section has had a history.
Its predecessor was S. 55 in Madras Act XIX of 1951. Sub-Sec. (1) of this section stated that a trustee of a Mutt would be entitled to spend at his discretion for purposes connected with the mutt any Pada Kanikkai, that is to say, ''any gift of property or money made as a personal gift to him as the head of the mutt." The second Sub-section was to the effect that the trustee should keep regular accounts of all receipts and disbursements of such Pada Kanikkais and to cause such accounts to be produced before the Commissioner or any person authorised by him in that behalf when required. In Commissioner, H.R.E., v. Sirur Mutt (1954) 1 M.L.J. 596 = 67 L.W. 1220 (S.C.) the Supreme Court ruled that S. 55 was unconstitutional. Sub-Sec. (1) was struck down on the ground that it directed that Pada Kanikkais should be spent only for the purposes of the mutt which, in the opinion of the Supreme Court, was an unwarranted restriction on the property right of the Mahant. The Supreme Court also considered that the same objection could be raised against Sub-Sec. (2) of the section as well, for, if the Pada Kanikkai constituted the property of a Mahant, there was no justification for compelling him to keep accounts of the receipts and expenditure of such personal gifts. This section was therefore amended in 1954, and in the amended form it stated that the trustee of a Mutt should keep regular accounts of receipts of Pada Kanikkais, that is to say, "any gift of property made to him as the head of the Mutt" and shall be entitled to spend such Pada Kanikkais in accordance with the customs and usages of the institution. The validity of this amended section was the subject-matter of Shri H.H. Sudhindra Thirtha Swamiar, Senior Swamiar of Puthige Mutt and Others Vs. The Commissioner of Hindu Religious and Charitable Endowments and Another, and on appeal in H.H. Sudhundra Thirtha Swamiar Vs. Commissioner For Hindu Religious and Charitable Endowments, Mysore, in which the Supreme Court, affirming the view of this Court, upheld the validity of this section. This is on the view that the section was applicable only to Pada Kanikkais received by the Mahant as the head of the Mutt and it had no application to Pada Kanikkais which were proved to be gifts personal to the Mahant. In the 1959 Act, the former S. 55 has been re-enacted as S. 62, but with two sub-sections. Sub-Sec. (1) of this section is practically the same as the former Sec. 55. Sub-sec. (2) of S. 62 is to the effect that such gifts of property or money as as are not spent by the trustee during his tenure of office in accordance with the customs and usages of the institution shall form part of the funds of the Mutt. We are not in this case concerned with this sub-section.
S. 86 in Ch. VIII relating to budgets, account and audit prescribes that a trustee of a Mutt shall send a budget showing the probable receipts and disbursements of the institution during the following fasli to the Commissioner, the Deputy Commissioner or the Area Committee through the Assistant Commissioner or the officers to whom such budgets are required to be submitted in relation to the other institutions within their relative jurisdiction. The authority to sanction the budgets is also vested in the Commissioner. S. 87 in the same Chapter deals with accounts and audit and S. 88 prescribes that the audit report in relation to a mutt is to be forwarded to the Commissioner. In the case of other institutions audit reports will be sent either to the Deputy Commissioner or the Commissioner as the case may be.
It may be seen from the foregoing provisions that so far as Mutts and trustees of Mutts are concerned, the jurisdiction over them is generally entrusted to the Commissioner. Basing himself on this fact, Mr. Gopalaswami Iyengar contends that it is not intended that powers of inspection under S. 33 (1) specifically given to the Commissioner in respect of a Mutt could be delegated to any other officer or person. There might have been substance in the point, had it not been for the specific provision, namely, S. 14 (13) expressly providing for power to the Commissioner to delegate to the Assistant Commissioner any of the powers conferred or duties imposed on him, except the powers excluded from the scope of delegation. Ss. 13 and 14 empower the Commissioner to delegate his powers either to the Deputy Commissioner or to the Assistant Commissioner in terms of the section and subject to such restrictions and control as the Government may by general or special order lay down, and subject also to such limitations and conditions as may be specified by the Commissioner in his order of delegation. Pursuant to these sections the Government have framed rules which require publication of delegations of power under S. 13 or S. 14. Even assuming therefore that the policy of the Legislature, as gathered from the various sections of the Act, may be to generally entrust the jurisdiction in respect of Mutts and trustees of Mutts to the Commissioner, it cannot be held that this broad policy can override an express provision in the very Act enabling the Commissioner to delegate some of his powers relating to them.
Mr. Gopalaswami Iyengar further argues that S. 33 is a corollary to the two immediately preceding sections relating to submission of register once in ten years, and the obligation of the trustee of a Mutt to furnish accounts and returns to the Commissioner. Learned Counsel says that it is only where the necessity arises out of or in the light of the register submitted under S. 31 or accounts and returns under S. 32, could S. 33 be invoked for purposes of inspection, and in such a case it is the Commissioner, that the section contemplates should inspect, subject of course to his powers of deputing an officer or other person for the purpose. Learned Counsel adds that this is made clearer by reference to S. 32 (2) which provides that the submission of accounts and returns in respect of religious institutions other than a Mutt shall be to an Assistant Commissioner. The argument is that to hold that the Assistant Commissioner will have the power to inspect will be in conflict with the principle of S. 32 (2). I am unable to accept this approach either. Sub-S. (1) of S. 32 is in general terms and it applies to all religious institutions without an exception and Sub-S. (2) by its opening words makes it clear that its operation will be without prejudice to the provisions contained in Sub-S. (1). Also S. 33(1) itself likewise is in general terms. It is therefore not possible to accept the contention for the petitioner that either S. 33 is intended to be a corollary, in the sense in which Learned Counsel meant it, to S. 31 and S. 32 or that Sub-S. (2) of S. 32 throws any light upon or controls in any way the scope of S. 33(1).
That takes me to the further argument for the petitioner that, examining the terms of Sub-S. (1) of S. 33 it is clear that the power of inspection is primarily given to the Commissioner and that where he thinks it necessary he can but only specifically in each case, when the necessity arises, depute any officer or other person. Learned Counsel says that "depute" and "in this behalf" in the subsection unmistakably point to that position. Prima facie, it appears that the word "depute" implies that it is used in relation to a person deputed. It will be inappropriate to say that powers are deputed. To that extant the petitioner may be right. He points out that the phrase "in this behalf" should be understood in the sense of ''for the occasion''. In other words, the suggestion is that what Sub-S. (1) of S. 33 contemplates is that the Commissioner can depute an officer or other person for the purpose of inspection in each case and he cannot do so, having regard to those terms by way of a general delegation. But a reading of Sub-S. (1) is sufficient to my mind to show that the phrase "in this behalf" is not used in the sense suggested by the petitioner, but it only means deputing an officer or other person for inspection. In my opinion, it will not be correct to decide the question whether a delegation of the power under S. 33(1) can be made or not by reference to the words "depute" and "in this behalf". Sub-S. (1) of S. 33 contemplates two powers. One is the power of the Commissioner to inspect. The second it his power to depute an officer or other person to inspect. The question here is not whether the power of the Commissioner to depute an officer or other person can be delegated. S. 14(3), in terms expressly says that the Commissioner may delegate to an Assistant Commissioner any of his powers except of course those in some of the sections mentioned in it. As I said, one of the powers of the Commissioner being to inspect under S. 33(1), he is certainly entitled under S. 14 (3), to delegate that power to any officer or other person. It is another matter whether where a delegation under S. 14 (3), is made of the powers under S. 33 (1), the delegatee will have the power also to depute other person. That question does not, in my opinion, arise in this case. The delegation under S. 14 (3), of the power under S. 33 (1), is to be found in a notification in the Fort St. George Gazette dated 17th February 1960. Appendix II to this notification relates to the powers delegated to an Assistant Commissioner. One of the powers so delegated to him is the power under S. 33 (1), and this power as delegated to the Assistant Commissioner is exercisable under Appendix II of the notification in respect of all religious institutions. It seems to me that so far as the power of the Commissioner to inspect is concerned, the notification delegating it to the Assistant Commissioner is not open to challenge, on the ground that by the terms of S. 33 (1), such delegation is not permitted.
The respondent in a reply notice to the petitioner took up the attitude that even apart from delegation of the power of the Commissioner under S. 33 (1) he has directly the power of inspection under that very provision. Learned Advocate General sought to support this stand of the respondent. I think it impossible to accept his contention. S. 33, as already mentioned, is in general terms and its scope has to be understood by reading the entire section. Sub-S. (3) relates to his power of surcharging a trustee of a religious institution. That power is exercised in relation to the inspection report and the finding arrived at by him. This power under Sub-S. (3) of S. 33, is not delegated. It does not appear, as I read S. 33 (1), that the Commissioner and any officer under him are placed in the same position and both are given the power of inspection. Having regard to the phraseology and the collocation of the words in Sub-S. (1) of S. 33, I am of the opinion that the power of inspection is only entrusted to the Commissioner, and not to any officer or other person. The learned Advocate General suggests that "depute" in the section will have reference only to other person and not to any officer. I am unable to read the section in that manner. The word "deputed" also has reference to any officer. The respondent is therefore not right in taking up the position that apart from any delegation he has any power of inspection under S. 33(1).
It is then contended by Mr. Gopalaswami Iyengar that, assuming that the delegation is good, in so far as the notice of the respondent to inspect covered also accounts relating to Pada Kanikkai, it is liable to be set aside. The argument is that Pada Kanikkai being personal to the petitioner, the respondent cannot call upon him to produce accounts relating to such Pada Kanikkais. Clearly Counsel for the petitioner is right to that extent. In fact, S. 62, like its predecessor, S. 55, does not apply to Pada Kanikkais tendered to the Mahant as a personal gift to him. That section will cover only Pada Kanikkais tendered to him as the head of the institution. But in the communication of the respondent dated 4th August 1962, he had explained that the notice to inspect only related to accounts of Pada Kanikkais received by the petitioner as the head of the Mutt. In view of that explanation, I do not think it necessary to strike down that part of the notice relating to production of accounts of Pada Kanikkais, whether any Pada Kanikkai has been received by the petitioner as the head of the mutt or as a personal gift to him is another matter. That will have to be decided by separate proceedings. It seems to me that once the petitioner raises an objection that the Pada Kanikkai covered by the accounts which the respondent wants to inspect are his personal property and not received as head of the Mutt, the respondent could not assume to himself the jurisdiction to decide the question himself and insist upon inspecting the accounts. He can only inspect the accounts in the light of any decision on the question by a competent authority.
As far as I can see there is no provision in the Act which empowers the Assistant Commissioner to decide that question. Where he acts under the delegate power of inspection, his power is only confined to such inspection of such accounts as may be covered by S. 62, and, as I said, that section does not extend to and does not cover Pada Kanikkais tendered as personal gifts to the trustee or Mahant. It may further be pointed out that the normal rule will be that a Pada Kanikkai made to a Mahant is his personal property, unless there is a custom or tradition to the contrary under which such Pada Kanikkai may be treated as the property of the Mutt or the giver of the Pada Kanikkai indicates that the Pada Kanikkai is not given as a "personal gift" to the Mahant, but to the Mutt itself. Where of course the Assistant Commissioner has reason to believe that the funds of the Mutt have been misappropriated under the guise of Pada Kanikkai personal to the Mahant, the scope of his inspection for the purpose will be confined to the accounts of the Mutt and its assests, properties and funds.
Lastly, it is argued for the petitioner that the impugned notice of the respondent is not bona fide. I have already mentioned that this contention is based on the fact that the petitioner applied for time to move this Court for suitable directions but this was not allowed and the further fact that on 10th August, 1962, the respondent went to the extent of filling a criminal complaint against the petitioner. From these two facts alone I am not satisfied that the notice of the respondent can be described as not bona fide. It cannot be quashed therefore on that ground. But, at the same time, it should be pointed out that the intention of the Act can will be carried out by the officers by acting in such a manner as will be befitting the dignity, status and position of the head of a religious institution. The petition fails and is dismissed but with no costs.