R.V. and Co. vs The Hindu Religious Endowments Board and Others

Alfred Henry Lionel Leach, C.J.—The petitioner has applied for the issue of a writ of certiorari with the view to the quashing of the

proceedings taken by the Hindu Religious Endowments Board for the cancellation of a lease granted to him by the trustee of the temple of Sri

Adimooleswarar, Agaram, Chidambaram Taluq, South Arcot District. Notice was issued to the Board and the Court has heard the arguments of

the learned Advocates who have appeared for the respective parties. In August, 1938, the petitioner applied to the trustee of the temple for a lease

for a term of 99 years of certain lands belonging to the temple. His intention was to utilize the lands for salt pans. The trustee granted the lease and

it was registered on the 29th of August, but it had not been sanctioned by the South Arcot Temple Committee and therefore admittedly it was

invalid. On the 30th November, 1938, the matter of the lease was considered by the Committee which resolved to cancel it, but decided to

sanction a new lease for a period not exceeding 25 years. In I pursuance of the resolution passed by the Committee the trustee granted a lease to

the petitioner on the same terms as the cancelled lease, except that the period was reduced from 99 years to 25 years. The resolution of the

Committee can only be read as sanctioning a lease on the same terms as the previous lease with this modification.

In the neighbourhood of the land covered by the lease are salt pans owned by a salt contractor carrying on business under the style of Sri

Sivananaintha Nadar and Company. The proprietor of this firm felt aggrieved at the granting of the lease to the petitioner and moved the Board to

cancel it. The result was that the petitioner was called upon to show cause why his lease should not be cancelled. The decision of the Board was

embodied in an order dated 5th April, 1939. The Board considered that the resolution of the Committee sanctioning the lease was improper and

not inaccordance with the requirements of the law. The reasons for this opinion are stated and are these:-The Committee had not shown why a

lease for 25 years should be granted; when a lease is granted for more than five years Section 76 of the Madras Hindu Religious Endowments Act,

1926, requires it to be established that it is necessary or beneficial to the temple and this had not been done; the lease had been given privately and

not as the result of public auction; the lease would not be beneficial to the temple and it would change the character of the land, there being on it 70

tamarind trees bearing fruit. The area covered by the lease is 24 acres. In pursuance of this order the Board called upon the Temple Committee to

submit a report on the action taken by the Committee in sanctioning the lease. It is admitted that in passing these orders the Board purported to be

exercising powers conferred upon it by Section 34 of the Act. The petitioner says that the section does not vest the Board with power to cancel

the lease and that action with a view to its cancellation can only be taken under the provisions of Section 76.

Section 34 of the Act reads as follows:

The resolutions of a Committee shall be carried into effect by its President in whom the entire executive power of the Committee shall, save as

hereinafter provided, be vested.

(a) All the resolutions of a Committee shall be notified to the Board within one week after they are passed.

(b) The Board may call for any record or proceedings or other document or paper from any Committee for the purpose of satisfying itself as to the

correctness, regularity or propriety of any order or proceedings recorded or passed by such a Committee.

(a) The Board shall have the power of staying, for reasons to be recorded by it, the execution of any of the resolutions of the Committee and

remitting the same to the Committee for reconsideration.

(b) If the Committee upon such reconsideration confirm the said resolutions, the Board may, whenever it deems such step necessary in the interests

of the temple affected or the proper management of the affairs of the. Committee, modify or cancel the said resolutions.

Section 76 is in these terms:

l. No exchange, sale or mortgage and no lease for a term exceeding 5-years of any immovable property belonging to any math or temple shall be

valid or operative unless it is necessary or beneficial to the math or temple and is Sanctioned by the Board in the case of maths and excepted

temples and by the Committee in the case of other temples.

The trustee of the math or temple or any person having interest may, within one year of the date of the order of the Board or Committee under

Sub-section (1), apply to the Court for modifying or cancelling such order.

The order of the Board or Committee under Sub-section (1) when no application is made under Sub-section (2) and the order of the Court

when such application in.made shall be final.

The temple with which this application is concerned is a non-excepted temple and therefore the temple Committee had full power under Sub-

section (1) to sanction the lease.

The, learned Advocate for the petitioner contended that inasmuch as the lease was lawfully sanctioned by the Committee, executed by the

trustee and registered, he has obtained a title witch can only be taken away from him under the procedure contemplated by Sub-section (2) of

Section 76, namely, an application to the Court. There can be no doubt that this contention is sound, unless Section 76 must be read as being

subject to Section 34. For the board it is said that Section 76 must be read as being subject to Section 34, except all the provisions of Section 34,

except those of Sub-section (1) were added by a later Act, namely, the Madras Hindu Religious Endowments Act of 1930.

The rule of construction to be applied here was stated by Best, C.J., in Churchill v. Creased (1828) 5 B. 177 : 130 E.R. 1028:

The rule is, that where a general intention is expressed, and the act expresses also a particular intention incompatible with the general intention, the

particular intention is to be considered in the nature of an exception.

There has been no modification of this rule by subsequent decisions. Therefore Section 76 must be regarded as an exception to Section 34. I

cannot accept the argument that the fact that Sub-sections 2 and 3 of Section 34 were inserted later affects the rule. No doubt it was the intention

of the Legislature in amending Section 34 to invest the Board with large powers and it is the intention of the Act that the Board shall have powers

of superintendence, but this does not mean that the Board has the power to interfere with the rights of third parties. That is what the Board is

contemplating doing here. The Board would have power to interfere with the resolution of the temple Committee before the resolution is carried

into effect and in some cases it may have power to interfere after the resolution has been given effect to, but it has not got the power to cancel a

lease. The Legislature has placed the power of interference expressly in the Court and if the action of the temple Committee in sanctioning the lease

was improper the Court, and the Court alone can interfere. The action of the Board in taking steps with a view to the cancellation of the

petitioner''s lease u/s 34 is unlawful and the proceedings must be quashed. This does not mean that the Board will not be able to call for a report

from the temple Committee with a view to possible action u/s 76, but it cannot cancel the lease as it obviously intends to do.

I would add that the learned Advocate for the petitioner appeared before the Board before the passing of the order on 5th April, 1939, and

made representations which he has made to us to-day, but there is no reference in the proceedings to this and action was taken by the Board in

spite of the protest against its validity.

The petitioner is entitled to his costs which will be paid by the first and second respondents. The third respondent, the trustee, has not opposed

the application.