Research › Browse › Judgment

Kerala High Court · body

1954 DIGILAW 120 (KER)

Kumaran Namboodiri v. Cochin Devaswom Board

1954-07-27

M.S.MENON, SANKARAN, SUBRAMONIA.IYER

body1954
Judgment :- 1. This petition seeks a writ of certiorari or other appropriate direction quashing the order of the Cochin Devaswom Board suspending the petitioner from his office as Managing Trustee of the Chullurmaniyathu Kavu Devaswoms. The order is dated 10.9.1950 and reads as follows: "Whereas the Cochin Devaswom Board is satisfied that the affairs of the Chulurmaniyathu Kavu Devaswoms situated in Poyya village, Mukundapuram Taluk, are grossly mismanaged by the Managing Uralan the Meladath Manakkal Sankaran Kumaran Namboori, whereas the other two uralas Vadakke Kizhiyedath Vishnu Namboori and Meladath Sankaran Subramanian Namboori are found to participate in the various acts of mismanagements, the Devaswom Board in virtue of the powers vested in it under S. 87 of the Travancore Cochin Hindu Religious Institutions Act, XV of 1950 is pleased to depute the Assistant Devaswom Commissioner, Trivanchikulam group, to conduct and enquiry into the affairs of the said Devaswoms and to suspend these uralars pending the enquiry and to appoint the 4th uralan Sri. Thekkekizhiyedath Vishnu Narayanan Namboori as an interim trustee of the said Devaswom, under Ss. 91 and 100 of the Act with a view to protect and conserve the Trust." The enquiry directed is by virtue of the powers conferred on the Board under S.87(i) of the Travancore Cochin Hindu Religious Institutions Act, 1950, which reads: "The Board may depute any officer not lower in grade than a Devaswom Assistant Commissioner to enquire into the affairs of any institution and to examine the properties, movable and immovable, and the accounts, registers and other records of any institution and to submit a full report on the result of such enquiry and inspection. The trustees, office-holders and servants of such institution shall furnish the officer so deputed with all the information he may call for and shall also assist him in the examination of the properties, accounts, registers and records. On the report of the officer deputed to conduct the enquiry the Board shall pass such orders as it may think proper." Sub-s. (3) of that section provides: "Pending final orders on the report of the officer deputed to conduct the enquiry under sub-s. (1) or pending the enquiry, the Board may suspend the trustee, office-holder or servant." and there can be no doubt that the words of the sub-section will sustain the impugned order of the Devaswom Board. 2. 2. The argument advanced on behalf of the petitioner was that sub-s. (3) embodies a discrimination as far as the trustees of the Devaswoms in the Cochin portion of the State is concerned as no similar provision obtains in Part I of the Travancore Cochin Hindu Religious Institutions Act, 1950, which deals with the Travancore portion of the State and AIR 1954 Supreme Court 297 was cited in support of the contention. In that case their Lordships said: "It appears that in the former State of Rajasthan provisions regarding the management by Government of Jagirs and the right to collect rents already existed, whereas there was no such provision in the former States of Jaipur, Bikaner, Jaisalmer and Jodhpur and Matsya Union, but when the integration took place in April and May 1949 the discrimination exhibited itself not by virtue of anything inherent in the impugned Ordinance but by reason of the fact that Jagirdars of one part of the present State of Rajasthan were already subjected to a disability in the matter of management of their Jagirs while the other parts were wholly unaffected. This discrimination, however undesirable, was not open to any exception until the Constitution came into force in January 26,1950 when Art. 13 declared that all laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this part, shall to the extent of such inconsistency, be void." that "It becomes therefore necessary to see whether the impugned provision which is discriminatory on the face of it is hit by Art. 14 which declares that the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India". and concluded: "Such an obvious discrimination can be supported only on the ground that it was based upon a reasonable classification. It is now well settled by the decision of this court that a proper classification must always bear a reasonable and just relation to the things in respect of which it is proposed. Judged by this criterion it seems to us that the discrimination is based on no classification at all and is manifestly unreasonable and arbitrary". 3. It is now well settled by the decision of this court that a proper classification must always bear a reasonable and just relation to the things in respect of which it is proposed. Judged by this criterion it seems to us that the discrimination is based on no classification at all and is manifestly unreasonable and arbitrary". 3. We are unable to see any distinction between the trustees of the temples in Travancore and Cochin areas of the State or any reasonable basis for classifying them into two separate groups. It follows that sub-s. (3) of S. 87 is hit by Art. 14 of the Constitution and should hence be considered as ultra vires and of no effect. 4. It was suggested before us on behalf of the Board that the hereditary trusteeship of the Malabar temple does not spell a right in property and is not hence within the protection afforded by Art. 19(1)(f) of the Constitution. The same question came up for consideration of the Madras High Court recently in the case of certain trustees of a Malabar Temple (AIR 1954 Madras 385). Their Lordships said: "The nature and incidents of the office of hereditary trusteeship are well settled by authority." that "there is ample authority and for the view that trusteeship were hereditary, is in the nature of property"; and "we are accordingly of opinion that hereditary trusteeship is within the protection afforded by Art. 19(1)(f) even though there was no emoluments attached to the office," We are in respectful agreement with the view expressed by the High Court of Madras and feel that no useful propose will be served by our surveying the ground afresh in this judgment. 5. In the view we have taken the larger contention of the petitioner that many of the other provisions of the Travancore Cochin Hindu Religious Institutions Act, 1950, if not the whole of that enactment, are ultra vires of the Constitution, does not arise for consideration. All that we propose to say at present is that in the light of the decisions of the Supreme Court in AIR 1954 SC 282, 388 and 400, the Act as a whole must be held intra vires and whether any particular section does or does not offend the Constitution will be a matter for special investigation. 6. All that we propose to say at present is that in the light of the decisions of the Supreme Court in AIR 1954 SC 282, 388 and 400, the Act as a whole must be held intra vires and whether any particular section does or does not offend the Constitution will be a matter for special investigation. 6. The only further question to be dealt with is a contention urged on behalf of the 2nd respondent. In paragraph 11 of his affidavit filed on the 19th March 1953 he said: "The petitioner has been adjudged an insolvent and is not possessed of any means. If any liability accrues it would be absolutely impossible to realise anything out of the petitioner." and on the basis of that averment his learned counsel contended before us that the petitioner is disqualified from holding the office of a trustee under S. 90(1) of the Travancore Cochin Hindu Religious Institutions Act, 1950, that any order in his favour canceling the suspension will hence be Infractuous and that the petition should be dismissed on that ground. It is admitted that the petitioner did apply to be adjudged as insolvent to the Anjikaimal District Court, Ernakulam by I.P. No. 46 of 1110, that he was adjudged an insolvent by the said court in pursuance thereto and that the order of adjudication was subsequently annulled by Ext. A dated 15.12.1110 which reads as follows: "No discharge petition is put in. The order of adjudication is annulled." 7. The relevant portion of S. 90 of the Travancore Cochin Hindu Religious institutions Act, 1950, reads:-"A person shall be disqualified from holding the office of trustee of an institution if he (b) applies to be adjudicated or is adjudicated an insolvent". and the foundation for the contention is what we consider an undue emphasis on the words "applies to be adjudicated" from which is drawn the conclusion that if there was an application for adjudication the person concerned is debarred for all time irrespective of subsequent circumstances from holding the office of a trustee of a Hindu Religious Institution. We have no doubt that a person whose petition has been dismissed or whose adjudication has been annulled is not affected by S. 90. We have no doubt that a person whose petition has been dismissed or whose adjudication has been annulled is not affected by S. 90. What the section really means is that a person whose application for adjudication is pending and any person adjudicated as an insolvent while the order of adjudication is in force are within the mischief of the section. 8. In the light of what is stated above the petition has to be allowed and the suspension of the petitioner by the Cochin Devaswom Board under S. 87(3) quashed by the issue of a writ of certiorari in that behalf. We direct accordingly. 9. The petitioner will have his costs from the respondents, advocate's fee Rs. 200/- the costs including the advocate's fees being borne in equal shares by respondents 1 and 2. Subramonia Iyer, J. 1A. I am entirely of the same opinion and am in full agreement with the judgment which has been delivered. There is no escape from the conclusion that the third clause of the 87th section of Act XV of 1950 which is obviously discriminatory is void as it offends Art. 14 of the Constitution. It is true that both the first and the second parts of the Act authorise the respective Devaswom Boards to remove or dismiss trustees after enquiry and then to arrange for the management of the concerned institutions. (See Ss. 41 and 48). The provision for suspending a trustee which obtains only in the second part cannot be regarded as an immaterial addition on the ground that a power to suspend is incidental to and is implied or involved in the power to dismiss and that even the Board in Part I can suspend a trustee though there is no express conferment of the power. The reason is that a statutory authority to dismiss does not include a power to suspend nor has the principle that the greater includes the less any application. (See Barton v. Taylor, LIZ 11 AC 197 at pp. 204, 205; see also ILR 37 Mad. 35). The case of Archakas and servants subject to the discipline of a trustee presents an altogether different aspect and affords no analogy as in that case a power to suspend as a disciplinary power pending charges may be and has been regarded as included in the power of removal. (See Mad. 631, 21 MLJ 580). 2A. 35). The case of Archakas and servants subject to the discipline of a trustee presents an altogether different aspect and affords no analogy as in that case a power to suspend as a disciplinary power pending charges may be and has been regarded as included in the power of removal. (See Mad. 631, 21 MLJ 580). 2A. The impugned clause i.e., the 3rd in S. 87 of Act XV of 1950 imposes a fresh disability on the trustee as it did not exist in the repealed Cochin Act 1 of 1081 the sixth section whereof corresponding to the 87th section contained only two sub-clauses, the 1st and 2nd which are the same in both the Acts. Thus in the words of their Lordships of the Supreme Court (in State of Rajasthan v. Manohar Singji, AIR 1954 SC 297 at p. 299, para. 9) "there is no question of continuing unchanged the old law and judicature in one portion and a different law in the other" assuming without deciding that the plea of continuance is available in the matter of statutes of the description as those concerned in this case and also that it would avail even if the old statutes whose source of authority, i.e., the legislature of the two States of Travancore and Cochin, were different, have been repealed and a new enactment made, as here, by the authority of the integrated State of Travancore and Cochin having legislative competence over the entire territory of both the erstwhile States. 3A. The 48th section which in terms of re-enacted the 18th section of Travancore Hindu Religious Endowments Act, III of 1079, enacts that all religious endowments falling under the Act shall be treated as corporation sole. There is no such provision in Part II relating to religious endowments in the Cochin area. This circumstance is immaterial because corporations are entitled as natural persons to the due process of law and the equal protection of the laws. (See Santa Clara Co. v. Southern P.C.R. Co. 118 U.S.394, See also Smyth v. Ames 169 U.S. 446, Kentucky Finance Corporation v. Paramount Auto Exchange Corporation 262 U.S. 544, Willoughby's Constitution of the United States Vol. III p. 1682 and Willis' Constitutional Law, p.453. Allowed.