Narayanan Namburipad v. State of Madras — 1958 DIGILAW 18 (KER)

Judgment :- 1. These two applications which were filed in the Madras High Court were originally heard by the learned Chief Justice and Mr. Justice Venketarama Ayyar along with certain other writ applications, 0. S. Appeal and Referred Cases. By a judgment dated 11-9-1953 the learned judges have given their findings on the several legal contentions placed before them by all the parties. The learned judges have by the same preliminary judgment directed the applications to be posted for further hearing on the merits. In view of the States Reorganisation, these applications have been transferred to this court for final disposal. Therefore, these matters will have to be continued from the stage at which they were left by the learned judges of the Madras High Court. 2. It is desirable to state very briefly the circumstances under which these applications were filed and the contentions raised before the learned judges, as also the Madras High Court's finding on these points. 3. W. P. 71/1952 is filed under Art.226 of the Constitution of India and it raised the question as to the validity of the Madras Hindu Religious and Charitable Endowments Act XIX of 1951. The case of the petitioners in brief was as follows : 4. The petitioners are 5 out of 27 Ooralans of Sri Karikkat temple situated in Thrikkalankode Amsom of Ernad taluk of South Malabar. In dealing with the history of the Institution it is stated that the temple was founded for the purpose of worship by all the Illoms of Nambudiri Brahmins who constituted the Karikkat Gramam. The Idols of Sri Subramania Ganapathi and Iyyappan are installed in the temple and the dietem for the poojas and ceremonies to be conducted, have all been settled by the founders and properties have also been settled by the founders and properties have also been set apart by them and also subsequently acquired for the Institution. According to immemorial custom and usage, the Karanavans or heads of the founding Illoms are solely entitled to manage the affairs of the Devaswom in matters of religion and also to hold and administer its properties. The Ooralans also used to appoint a Samudayam or manager to carry on the day-to-day administration subject to their supervision and control. The Ooralans, from about 1924 also used to appoint a committee of their own consisting of 5 members for continuous supervision and management. The Ooralans also used to appoint a Samudayam or manager to carry on the day-to-day administration subject to their supervision and control. The Ooralans, from about 1924 also used to appoint a committee of their own consisting of 5 members for continuous supervision and management. But the general body of the Ooralans would meet whenever necessary and they were found to meet at least 4 times in a year on specified occasions stated in their applications. After giving the general poojas, festivals and other functions held in the temple together with the income of the institution, the petitioners have certain particulars about the steps taken by the then Madras Hindu Religious Endowment Board to have a scheme framed for this institution. Ultimately a scheme was framed on 2-2-1945 by the Board. In O.S. 5 of 1945, a suit filed by the Ooralans to set aside or modify the scheme, the learned District Judge of Kozhikode on 6-1-1950 modified the scheme framed by the Board on 2-2-1945. The details and several clauses of the scheme will be dealt with when dealing with the contentions of the petitioners on the merits of the scheme It is enough to state at this stage that the scheme provided for the Board nominating 3 of the Ooralans out of a panel of 5 submitted by the Ooralans as Managing Committee and it also provided for the appointment of a paid manager by the Board of a panel submitted by the Committee. 5. When the question of appointment of a manager under the scheme cropped up, the Board declined to accept the name suggested by the Ooralans. The Ooralans felt that this was an unwarranted interference with the rights secured to them, but their attempt to challenge the said right of the Board by a suit ended by the court returning the plaint as not being maintainable under the Act. But the Ooralans felt strongly the growing tendency of the Board to interfere with the internal management of the temple as affecting their fundamental rights They gave certain instances of directions given by the Board which according to them, interferes with their autonomy in the sphere of management of the trust. 6. But the Ooralans felt strongly the growing tendency of the Board to interfere with the internal management of the temple as affecting their fundamental rights They gave certain instances of directions given by the Board which according to them, interferes with their autonomy in the sphere of management of the trust. 6. The Ooralans finally resolved to take steps to challenge the provisions of the scheme as also the Act as being inconsistent with the fundamental rights guaranteed to them under the Constitution Finally, they filed this application challenging several provisions of the Madras Act XIX/1951 as violating the fundamental rights guaranteed to the Ooralans of the temple under the Constitution. They also challenged the act as discriminatory Their substantial contention was that the right of the Ooralans of the temple is property within the meaning of the said term in Art.19 of the Constitution. All the members of the Illom have a beneficial interest in the suit properties and they seriously complain that their property rights have been affected by the provisions of the scheme and also by the various provisions of the Act which are sought to be enforced as against them. 7. As stated earlier, their final prayer in the application was for the issue of a writ of prohibition or any other appropriate writ or order directing the respondents to forbear from enforcing any of the provisions of the Madras Hindu Religious and Charitable Endowment Act (Act XIX of 1951) against the petitioners and the other Ooralans of Sri Karikkat temple and for other consequential reliefs. 8. The respondents contested the application on all points. Substantially the respondents contended that the Act is valid and that the scheme framed by the District Court is also valid and binding on the petitioners. After giving the several circumstances which led to the framing of the scheme, the respondents also stated that the scheme as finally modified by the District Court in 0 S.5 of 1945 was an agreed scheme and the petitioners are not entitled to go behind the same. They also contended that the several clauses of the scheme are in conformity with the Act and has been made in the interest of the proper administration of the temple and its properties. They also disputed the contention of the petitioners that hereditary right is property. They also contended that the several clauses of the scheme are in conformity with the Act and has been made in the interest of the proper administration of the temple and its properties. They also disputed the contention of the petitioners that hereditary right is property. They also stated that the Institution has been mismanaged and all attempts to regulate the administration and place it on a sound footing have been consistently resisted by the Ooralans who had taken from the beginning an unhelpful and refractory attitude. In the end, they supported the validity of the Act as also the several clauses of the scheme challenged by the petitioners. 9. The preliminary judgment of the learned Chief Justice and Mr. Justice Venketarama Ayyar in these matters is reported in Narayanan v. State of Madras (A. I. R.1954 Mad. 385) and also in 1953 II M. L. J. 699. 10. It will be seen from that judgment that the two main contentions urged before them were (1) the Madras Act XIX of 1951 is void as it vests the administration of Religious Endowments in what is a department of the State ; and (2) the provisions of the scheme framed under the Act deprived hereditary trustees of the substance of their rights as such trustees and that they are repugnant to Art.19 (1) (f) of the Constitution and as such void. 11. If we may so with respect, Mr. Justice Venketarama Ayyar who has delivered the leading judgment in the case, has very exhaustively dealt with the legal contentions urged by all the parties before them. After examining the scheme of the Act and the case law on the subject, the learned judges came to conclusion that the law as it stood prior to the Constitution has not undergone any change and the learned judges have also held that the provisions made in S.76 (4) of the Act for payment of expenses of administration of Religious Endowments by the Government does not violate Art.282 and therefore the Act cannot be held to be void on that ground. 12. 12. Dealing with the contention that the Madras Act XIX of 1951 is repugnant to Art.14 of the Constitution as it singles out Hindu Religious Endowments for special treatment, the learned judges agreed with the decision reported in Lakshmindra Theertha Swamiar v. Commissioner, H. R. E. Madras (A.I.R.1952 Mad 613) and rejected this contention and they held that the Act is not void on the ground that it is an unconstitutional interference by the State in matters of religion. In dealing with the contention that the provisions in the scheme framed for the temple are repugnant to Art.19 (1) (f) of the Constitution and therefore void, the learned judges noted the argument that under the scheme the hereditary trustees do not have any rights worth the name, and that they are merely figure-heads As a preliminary to going into this question about the clauses in the scheme, the learned judges dealt with the question as to whether an abridgement of the rights of the hereditary trustees will be repugnant to Art.19 (1)(f) of the Constitution. Then the learned judges posed the question as to whether hereditary trusteeship is property within the meaning of that article. After again exhaustively dealing with the position of hereditary trusteeship in law, the learned judges observed that there is ample authority for the view that trusteeship, where hereditary, is in the nature of property. The conclusion of the learned judges is to be seen from the following quotation at p. 395: "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 may add that the allegations in the affidavits in support of these petitions disclose that the petitioners have also beneficial interests in the endowments. In the result, we must hold that the provisions in the schemes in so far as they encroach upon the rights of the petitioners as hereditary trustees are void under Art.19(1) (f) of the Constitution." 13. After arriving at this conclusion, the learned judges state that the schemes would require to be suitably modified. As the learned Advocate-General, Madras invited the learned judges to give a decision on the merits so as to provide a guidance for the authorities concerned, the learned judges directed these matters to be posted for further hearing on the merits. 14. After arriving at this conclusion, the learned judges state that the schemes would require to be suitably modified. As the learned Advocate-General, Madras invited the learned judges to give a decision on the merits so as to provide a guidance for the authorities concerned, the learned judges directed these matters to be posted for further hearing on the merits. 14. Before we deal with the actual contentions based on the provisions of the scheme, it is desirable to clear the ground by dealing with a contention raised on behalf of the petitioner and also another contention raised by the learned Advocate-General for the respondents. 15. Mr. K.V. Venketasubramania Iyer, learned counsel for the petitioners contended that a final decision has been given by the learned judges of the Madras High Court in this matter and that what remains to be done is only to pass an order quashing the scheme which is sought to be enforced as against the petitioners. The learned counsel contended that in dealing with his argument regarding the repugnancy of the provisions of the scheme to Art.19 (1) (f) of the Constitution, the learned judges have really considered the various offending clauses and have come to the conclusion that the petitioners retained only the 'husk' of their title as hereditary trustees with the substance within altogether gone. In particular, he placed very strong reliance about the reasoning of the learned judges contained in the paragraph numbered as 16 at page 394 of the A. I. R. Report. 16. On the other hand, the learned Advocate-General appearing for the respondents contended that the Madras High Court has not really given any final decision about the actual clauses in the scheme complained of. The paragraph in the judgment relied upon by Mr. Venkitasubramania Ayyer is only a summary of the argument of the petitioner's counsel in relation to Art.19(1) (f) of the Constitution. The learned Advocate-General further stated that if really the matter had been so concluded, the learned judges would have quashed the scheme proceedings without posting the applications again for further hearing on the merits. If a decision has already been arrived at, there is no purpose in posting the applications again for hearing the arguments. 17. In our opinion, the learned Advocate General is well-founded in his contention stated above. If a decision has already been arrived at, there is no purpose in posting the applications again for hearing the arguments. 17. In our opinion, the learned Advocate General is well-founded in his contention stated above. It will be seen that even at the beginning of the judgment the learned judges note the two arguments one regarding the void nature of the Act and the second regarding, the provisions of the scheme as offending Art.19(1) (f) of the Constitution. After dealing with the first contention the learned judges state in Para.16, relied upon by Mr. Venketasubramania Iyer, that the next contention relates to the question whether some of the provisions in the scheme framed for the temples are repugnant to Art.19(1) (f) and therefore void. Subsequently, the learned judges only enumerated the grievances of the applicants that under the schemes they have been virtually deprived of their office and reduced to a non-entity. In this connection, reference is made to some of the more important clauses of the scheme relied upon by the counsel for the petitioner. That it is only a contention of the counsel is again made clear by the learned judges in the following quotation: "The petitioners complain that under this scheme it is the manager who is the defacto trustee of the temple and he is acting under the orders of the Board and the result is that the Board manages the temples through the managers appointed by it and the hereditary trustees are mere figure-heads with nothing left of their office except a nominal acknowledgment of their rights as hereditary trustees. To adopt the language of Rich, J. in Minister of State for the Army v. Dalziel (68 C. L. R.261) they retain only the "husk" of their title as hereditary trustees with the substance within altogether gone." After noting this contention the learned judges proceed to consider whether hereditary trusteeship is property within the meaning of Art.19 (1) (f) the Constitution. 18. 18. After holding that hereditary trusteeship is property, the learned judges observe: "We must hold that the provisions in the scheme in so far as they encroach upon the rights of the petitioners as hereditary trustees are void under Art.19(1) (f) of the Constitution." This observation, in our opinion, clearly shows that the learned judges have not really expressed any final opinion about the scheme as such but only hold that any provision in the scheme shown to encroach upon the rights of the petitioners as hereditary trustees will have to be declared void under Art.19 (i) (f) of the Constitution. Though the view of the learned judges appears to be that the schemes could be satisfactorily modified by proceedings taken under the Act, nevertheless in view of the request made to them, the learned judges directed these matters to be posted for further hearing on the merits. This also shows that the merits will have to be gone into and the parties will have to satisfy the" court in such further proceedings as to how far the provisions of the scheme affect the fundamental rights of the petitioners as hereditary trustees. 19. Therefore, we reject the argument of Mr. Venketasubramani Iyer on this point and we hold that the provisions of the scheme have to be considered by us to find out whether there is an abridgment of the rights of the petitioners 20. The learned Advocate General raised a contention that the schemes before us are pre-Constitution schemes and as such their validity or otherwise cannot be judged by the provisions of the Constitution. Mr. Venketasubramania Iyer on the other hand, contended that under S.103 (a) or (d) the present schemes shall be deemed to have been settled under the 1951 Act. He also contended that even the learned judges in the present case have held that the schemes framed under the repealed Act which are declared by S.103 (a) to be schemes framed under that Act will be valid. The learned counsel further contended that when once a section of the new Act provides for such a deeming provision, its validity has to be considered under the provisions of the new Act as also of the Constitution. The learned counsel further contended that when once a section of the new Act provides for such a deeming provision, its validity has to be considered under the provisions of the new Act as also of the Constitution. It is really unnecessary to go into this matter because, in our opinion, it is not open to the learned Advocate General, to raise this contention in these proceedings at this stage. The learned judges, as already stated, have come to the conclusion that the provisions of the present scheme will have to be tested with reference to Art.19 (1) (f). As we are only continuing the same proceedings from the stage at which they were left by the learned judges of the Madras High Court, it is not open to the learned Advocate General to raise this contention. Therefore we hold that the schemes before us will have to be tested with reference to the provisions of Art 19 (1) (f) of the Constitution. We will take up for disposal first W.P.No. 71/1952 on its merits Mr. Venketasubramania Iyer, learned counsel for the petitioners very severely attacked the scheme and contended that under the scheme the hereditary trustees are mere figure-heads, the real management being with the commissioner through his manager. According to the learned counsel, his clients retained only the husk of their title as hereditary trustees, with the substance within altogether gone. He further contended that there is nothing in the scheme that could be salvaged by this court. He relied upon the decisions reported in Sankaran Nair v. Govindan (A. I. R.1955 Mad. 120), Moolacheri Nair v. H. R. & C. Endowments (1957 K.L.T. 1117) and W.P. 1049/1953 of the Kerala High Court. In Sankaran Nair v. Govindan (A. I. R.1955 Mad 120) Mr. Justice Balakrishna Iyer after considering the scheme before him came to the conclusion as follows: A scrutiny of the scheme makes it plain that the hereditary trustees are reduced to the position of dummies. They are shorn of all their rights and powers and dignities. In Sankaran Nair v. Govindan (A. I. R.1955 Mad 120) Mr. Justice Balakrishna Iyer after considering the scheme before him came to the conclusion as follows: A scrutiny of the scheme makes it plain that the hereditary trustees are reduced to the position of dummies. They are shorn of all their rights and powers and dignities. They are left only with the doubtful honour of describing themselves as trustees of the institution." In dealing with the suggestions that the court may indicate the provisions of the scheme which are repugnant to Art.19(1) (f) of the Constitution and those which are not, the learned judge observes: "But this is not possible since all the provisions in the scheme form one integrated whole and pieces cannot betaken out of it. The whole scheme must be remodelled As it is not possible to salvage any part of the scheme, the whole of it must be set aside." In this view, the learned judge issued the writ as prayed for. The said decision of Mr. Justice Balakrishna Ayyar was taken up on appeal W. A. No. 117/1955. The learned Chief Justice and Mr. Justice Panchapakesa Ayyar in dealing with the said appeal observed as follows: "We do not agree with the learned judge that no part of the scheme can be salvaged and the whole of it must be set aside. So long as a scheme is necessary, even radical alterations of the scheme can be made by way of modification of the original scheme." But before the learned judges the parties were able to agree to a modified scheme and the same was incorporated in the judgment of the learned Judges. We are quoting the judgment of the learned Chief Justice and Mr. Justice Panchapakesa Iyyar in W.A.117/1955 only for the purpose of showing that an attempt must be made to see how far the provisions in a particular scheme can be salvaged and detached from the offending provisions. 23. Our learned brother Mr. Justice M. S. Menon, in W. P. 1049/53 (M), by his judgment dated 26th June 1957 quashed the scheme that came up for consideration before him in entirety. The learned judge accepted the principles laid down by the Madras High Court in Narayanan v. State of Madras (A.I.R.1954 Mad. 385) and also observed that a fresh scheme has to be framed according to law. The learned judge accepted the principles laid down by the Madras High Court in Narayanan v. State of Madras (A.I.R.1954 Mad. 385) and also observed that a fresh scheme has to be framed according to law. In Moolacheri Nair v. H. R. & C. Endowments 1957 K.L.T 1117) the learned Chief Justice and Mr. Justice Varadaraja Iyengar, following the decision of the Madras High Court in Narayanan v. State of Madras (A.I.R.1954 Mad. 385) held: "We are clear however of the undoubted existence of a fundamental right of property in the hereditary trustees by way of their right to administer and manage their institution and due regard must be paid thereto in framing the scheme of management for such institution." Though the learned judges refer to the decision of Mr. Justice Balakrishna Iyyar in Sankaran Nair v. Govindan (A.I.R.1955 Mad 120), we do not find any reference to the appellate judgment of the learned Chief Justice and Mr. Justice Panchapekesa Ayyar of the Madras High Court in W.A.117/1955. Though the learned Chief Justice and Mr. Justice Varadaraja Iyengar were dealing with these questions in their appellate jurisdiction, still the learned judges set aside the scheme and remanded the suit to the trial court for fresh disposal. From the decisions in W.P. 1049/53 of Mr. Justice M. S. Menon and Moolacheri Nair v. H. R. &C. Endowments (1957 K.L.T. 1117) of the learned Chief Justice and Mr. Justice Varadaraja Iyengar, it follows that the principles as laid down by the Madras High Court in Narayanan v. State of Madras (A.I.R.1954 Mad. 385) have been accepted by this Court also. Though the learned Advocate General was agreeable to have a modified scheme giving due recognition to the rights of the petitioners in these proceedings, we regret to note that there was no response from the applicants in these proceedings. If we had been sitting as a court exercising appellate jurisdiction, we would have had no hesitation in framing a revised scheme. But as the parties are not agreeable, the only other course open to us is to dispose of this application on the merits. 27. Though the prayer in the application related really to the issue of a writ of mandamus directing the respondents from enforcing any of the provisions of the Act, Mr. But as the parties are not agreeable, the only other course open to us is to dispose of this application on the merits. 27. Though the prayer in the application related really to the issue of a writ of mandamus directing the respondents from enforcing any of the provisions of the Act, Mr. Venkatasubramania Iyer has stated before us that he is not pressing for that larger relief but he restricts the scope of the prayers in both these applications only to the schemes now in force and sought to be enforced. In fact, in the decision of the Supreme Court in Commissioner of H. R. E. Madras v Sirur Mutt (195 4 I M. L J. 596- S. C.) their Lordships of the Supreme Court have held, differing from the Madras High Court, that several of the provisions of the Act challenged are valid and in particular, their Lordships have also stated that S.58 relating to the framing of the scheme is valid. Therefore, the only question that now arises in both these matters, is to consider the provisions of the schemes and to see how far they abridge the fundamental rights of the petitioners. To appreciate the contention of Mr. Venkitasubramania Iyer it is desirable to have a general idea of the scheme and the various clauses contained therein. 28. Clause.2 states that the administration of the affairs of the suit temple shall vest in the hereditary trustees. It also provides that the Board shall have power to nominate 3 of the hereditary trustees from out of the 5 suggested by the hereditary trustees and failing that the Board can suo moto nominate 3 of the hereditary trustees to form a managing committee. Clause.3 provides for the managing committee submitting a panel of 3 names for the post of a manager and power is given to the Board to select one among them as manager. If the managing committee does not submit the names within the time prescribed, power is given to the Board to appoint a manager itself. Clause.4 makes the manager responsible to the Board for submitting all statutory returns and other information to the Board. Clause.5 provides for the manager carrying on the day-to-day administration of the temple subject to the provisions of the scheme and or under such lawful directions as may be given by the Board from time to time. Cl. Clause.4 makes the manager responsible to the Board for submitting all statutory returns and other information to the Board. Clause.5 provides for the manager carrying on the day-to-day administration of the temple subject to the provisions of the scheme and or under such lawful directions as may be given by the Board from time to time. Cl. 6 provides for the manager receiving the income of the temple in cash and kind and for making disbursements on behalf of the temple. He is directed to keep correct accounts. Provision is made for the temple funds not immediately required, to be deposited in any of the banks approved by the Board's Bye-laws. Power also is given to the manager to operate on the bank account. Investments of the surplus funds of the temple are to be made only after obtaining the previous sanction of the Board. Clause.7 provides for the manager representing the Devaswom in all matters connected with courts or Revenue Departments. Clause.8 provides for the manager being in custody of the account books and moveables of the temple. It further provides for the jewels and valuables to be under double lock in the joint custody, of the manager and any one of the trustees nominated by the committee. Clause.9 provides for the temple servants working under the immediate supervision and control of the manager who has got the power to fine, suspend, remove or dismiss them and under Clause.10 a right of appeal is given to the Board against the orders of the manager. C1.11 provides for the manager preparing the schedule of establishment necessary for the temple administration. The schedule is to be placed before the meeting of the managing committee for approval. C1.12 directs the manager to keep accounts of the temple fasliwar. It also provides for the preparation of the budget showing the probable receipts and disbursements of the temple and for that being placed before the committee. The budget as passed by the committee is to be submitted to the Board and no expenses other than the items sanctioned by the Board are to be incurred and it also provides that the orders passed by the Board are final and are to be carried out by the manager. Clause.13 provides for budget being submitted by the manager direct to the Board in case, the committee fails to meet or fails to pass the budget. Clause.13 provides for budget being submitted by the manager direct to the Board in case, the committee fails to meet or fails to pass the budget. C1.14 prohibits the lending or borrowing without the previous sanction or the Board. Clause.15 makes provision for the manager submitting to the Board diaries of work done by him as also the resolutions of the managing committee. The manager is also to submit a report to the Board on the administration of the temple as also the resolutions of the managing committee. C1.16 provides for the meeting of the members of the managing committee and it also states that extraordinary meetings may be held at the instance of the manager in case of urgent business or at the request of any two members of the committee and Clause.17 provides for the issue of notice by the manager. Clause.18 provides for the manner of sending such notices. C1.19 provides for the manager making available all the papers relating to the agenda for inspection of the members of the committee during office hours. Cl. 20 relates to the election of a President by the managing committee for the meetings of the managing committee. Clause.21 deals with the contingency of a difference of opinion in the managing committee. It also states that the minute book is to be in the custody of the manager and copies of the proceedings are to be sent to the Board. Clause.22 provides that the manager shall give effect to the resolutions of the meetings unless stayed by the Board. It also provides that if any of the resolutions of the committee are considered by the manager to be against the interests of the temple, he may refer the matter to the Board with reasons thereof and till the Board passes orders thereon the manager is given the power to keep the resolutions in abeyance. It also states that the order of the Board passed on these matters shall be final. Clause.23 deals with the several subjects which are to be discussed at meetings of the managing committee. Clause.24 gives a right to the managing committee the power to inspect and check the accounts and other records of the temple kept by the manager and to bring to the notice of the Board any defects in the management of the affairs of the temple. Clause.24 gives a right to the managing committee the power to inspect and check the accounts and other records of the temple kept by the manager and to bring to the notice of the Board any defects in the management of the affairs of the temple. Clause.25 gives power to the Board to frame rules not inconsistent with the provisions of the scheme or the Act and the rules and bye-laws framed thereunder. C1.26 gives power to the Board to issue directions from time to time in regard to the internal management of the temple. 29. Mr. Venketasubramania Iyer's main attack on this scheme are twofold. The first attack is that though the scheme appears to recognise that the administration shall vest in the hereditary trustees, Clause.2 makes it quite clear that the moment a panel of 5 names is sent up to the Board, the other Ooralans vanish from the scene and they have nothing further to do with the temple or its administration for all time. This amounts to a deprivation of their right as hereditary trustees which has been held to be property. 30. His second attack is that even the 5 Ooralans who form the managing committee, do not have any real power left in them in the matter of administration of the temple and its properties as will be clear from the subsequent clauses of the scheme. According to Mr. Venketasubramania Iyer, this is really a management of the temple, its affairs, and its properties by the Board through the manager appointed by the Board. The manager instead of being a servant of the hereditary trustees, is virtually in a position to override even the decisions taken by the managing committee. 31. The learned Advocate General contended that Clause.2 must only be understood as giving a management in rotation to the ooralans in the matter of administration and as such, it will be a perfectly valid provision in a scheme. The learned Advocate General further stated that though the decision in H.R. E. Board v. Palaniandi Muthirian (A.I.R.1944 Mad. 351) negatived such a right, the later decision of the Madras High Court in Ramalingam v. Peria Kali Goundan (A. I. R.1948 Mad. 173) has recognised such a right. The learned Advocate General further stated that though the decision in H.R. E. Board v. Palaniandi Muthirian (A.I.R.1944 Mad. 351) negatived such a right, the later decision of the Madras High Court in Ramalingam v. Peria Kali Goundan (A. I. R.1948 Mad. 173) has recognised such a right. It is really unnecessary for us at this Stage to express a final opinion on this point because Clause.2 does not even provide for management by turns for any particular period as was the case in the decision in Ramalingam v. Peria Kali Goundan (A.I.R.1948 Mad. 173). There is no dispute that there are at least 27 Ooralans for this institution and the provision made in Clause.2, without in any way giving any further recognition to their rights is, in our opinion, a very serious abridgment on the rights of the Ooralans in the exercise of their hereditary trusteeship. At to how exactly the rights of all the Ooralans who are entitled to function as hereditary trustees of this institution, are to be adjusted and regulated, is a matter to be further considered in the fresh scheme to be framed after hearing all parties. 32. We have tried our very best to find out as to which of the clauses in the scheme can be salvaged and detached from the offending clauses. In fact, once we accept the contention of Mr. Venkitasubramania Iyer on the first point and hold that there has been a very substantial deprivation of the rights of hereditary trusteeship for all time of the 24 Ooralans who vanish once and for all after the election contemplated under Clause.2, it will follow as a necessary consequence that the whole foundation of the scheme falls to the ground. 33. But we will also consider the second contention of Mr. Venkitasubramania Iyer that even as regards the managing committee, they are left only with the husk while the entire power is left with the manager and the Board. In fact, Mr. Venketasubramonia Iyer even went to the extent of contending that no manager as executive officer at all can be appointed under a scheme in respect of an institution where there are hereditary trustees as the present one. Mr. Venketasubramania Iyer relied upon S.56 of Madras Act XIX of 1951 which was in Chap.4 of the said Act and the reasons given by the Supreme Court for striking down that section. Mr. Venketasubramania Iyer relied upon S.56 of Madras Act XIX of 1951 which was in Chap.4 of the said Act and the reasons given by the Supreme Court for striking down that section. In particular, the learned counsel relied upon the following observations of their Lordships of the Supreme Court in Commissioner of H.R.E. Madras v. Sirur Mutt (S.C.) 1954 I MLJ 596 at 613) where their Lordships were dealing with S.56. Their Lordships observe: "The manager thus appointed though nominally a servant of the trustee, has practically to do everything according to the directions of the commissioner and his subordinates It is to be noted that this power can be exercised at the mere option of the commissioner without any justifying necessity whatsoever and no pre-requisites like mismanagement of property or maladministration of trust funds are necessary to enable the trustee to exercise such drastic power. The effect of the section really is that the commissioner is at liberty at any moment he chooses to deprive the Mahant of his right to administer the trust property even if there is no negligence or maladministration on his part. Such restriction would be opposed to the provision of Art.26 d) of the Constitution. It would cripple his authority as Mahant altogether and reduce his position to that of an ordinary priest or paid servant." 34. The learned Advocate General meets this argument by contending that the reasons which prompted their Lordships to strike down S.56 have no application to the provision for appointment of an Executive Officer or Manager in a properly framed scheme under S.58 of the Act. 35. We have no hesitation in rejecting this extreme argument of Mr. Venketasubramania Iyer that under no circumstances can a manager or executive officer be appointed in respect of an institution administered by hereditary trustees. The reasons given by their Lordships regarding S.56 which related only to Mutts and relied upon by Mr. Venkitasubramania Iyer have no analogy to the provisions for appointment of an Executive Officer or manager in a properly framed scheme for a Temple. Whether an executive officer or a manager has to be appointed in particular cases as even in this case has to be considered after taking all the circumstances into consideration. Venkitasubramania Iyer have no analogy to the provisions for appointment of an Executive Officer or manager in a properly framed scheme for a Temple. Whether an executive officer or a manager has to be appointed in particular cases as even in this case has to be considered after taking all the circumstances into consideration. But a provision for appointment of a manager or an executive officer by itself cannot in law, in our opinion, constitute an abridgment of any of the rights of the hereditary trustees. In fact, in a large number of cases, appointment of a manager or executive officer after safeguarding adequately the rights of the hereditary trustees, will be for the better administration of the institution. Such an appointment will also to a large extent relieve the hereditary trustee of unnecessary worry, trouble and annoyance. Whether the provision for the appointment of the manager is valid and justifiable would depend upon the nature of the functions delegated to him and the circumstances of the particular case. 36. It is not necessary for us to further elaborate this matter, as even their Lordships of the Supreme Court in the decision cited above have held that the provisions of S.58 relating to the framing of a scheme is perfectly valid. Their Lordships, in dealing with the specific provision under S.58 (3) (b) relating to the appointment of an executive officer in a scheme framed for a Mutt have held that the objections against such a scheme has no substance. Their Lordships further state that an executive officer there, could be nothing else but a manager of the properties of the Mutt and he cannot possibly be empowered to exercise the functions of the Matathipathi himself. Their Lordships also state that the trustee would have his remedy against such an order of the Deputy Commissioner by way of appeal to the commissioner and also by way of suit as laid down in S.61 and 62. Though Mr. Venkitasubramania Iyer tried to distinguish that in this case we deal with the provisions of S.58 (2) (d) and not S.58 (3) (b), we are not able to see any substantial difference between the two clauses S.58 (1) provides for the framing of a scheme in the interest of the proper administration of a religious institution by the Deputy Commissioner. Venkitasubramania Iyer tried to distinguish that in this case we deal with the provisions of S.58 (2) (d) and not S.58 (3) (b), we are not able to see any substantial difference between the two clauses S.58 (1) provides for the framing of a scheme in the interest of the proper administration of a religious institution by the Deputy Commissioner. Clause.2 deals with the framing of a scheme for a temple or for a specific endowment other than one attached to a Mutt and Clause.3 deals with the scheme for a Mutt or for a specific endowment attached to a Mutt. Both the sub-clauses make provision for appointing or directing the appointment of a paid executive officer and defining the powers and duties of such officer, and this power has been recognised to be valid by their Lordships of the Supreme Court. Therefore, we are of opinion that a provision for appointment of an executive officer or a manager in a scheme does not by itself abridge the right of a hereditary trustee as such, provided the powers and duties of such an executive officer or manager have been properly fixed having due regard to the rights of the hereditary trustee both in the matter of appointment and in the matter of control to be exercised over him in the discharge of his duties. No doubt, as stated earlier, whether there should be a manager or executive officer, at all for a particular institution has to be considered after taking all the relevant factors into consideration. 37. The learned Advocate General also contended that at the time when the preliminary judgment was given in these Writ Petitions by the Madras High Court the learned judges had before them only the decision of Mr. Justice Satyanarayana Rao and Mr. Justice Rajagopalan reported in Sri Shirur Mutt v. Commissioner, H.R. E. Board (1952 I. M. L. J. 557). But on appeal from that judgment their Lordships of the Supreme Court in the decision reported in Commissioner of H.R.E. Madras v Sirur Mutt (S.C.) (1954 I M.L.J. 596) have differed from the Madras High Court and have also held most of the sections of the Act to be valid. We do appreciate the force of this argument of the learned Advocate General. We do appreciate the force of this argument of the learned Advocate General. The validity of a scheme has to be tested by the principles laid down by their Lordships of the Supreme Court in the judgment mentioned above regarding the various sections of the Act. Bearing the principles laid down by the learned Chief Justice and Mr. Justice Venketarama Ayyar in these writ proceedings as also the principles laid down by the Supreme Court in H.R.E. Madras v Sirur Mutt (S.C.) (1954 I. M.L.J. 596), we have tested the validity of the various clauses in the scheme and we are constrained to hold that the scheme as such offends the rights of the Ooralans as hereditary trustees, under Art.19 (1) (f). Though no doubt, one or two very minor clauses can be picked up and held to be valid, that will not really improve the situation, as the said clauses are also very closely linked up with the rest of the scheme. 38. Mr. Venkitasubramania Ayyar is well-founded in his contention that even the managing committee is left only with the husk while the substantial powers are with the manager or the Board. He is again well-founded in his contention that the whole scheme contemplates only a management of the institution and its properties by the Board through its manager; and the hereditary trustees are nowhere. The learned Advocate General no doubt tried his very best to support at least some of the clauses in the scheme and contended that they could really be traced to the powers given to the department under the Act. But that will not really enable us to hold the scheme to be valid when the entire clauses read together lead only to one conclusion namely, that it is a management by the Board through its manager thus pushing out the hereditary trustees completely out of the picture. Apart from the fact that the Board is given the final power to select the manager, the manager is given power to conduct the day-to-day management under directions from the Board The manager is the authority to receive the income of the temple and to operate on the hank account. It is the manager again that is given the power to represent the Devaswom in all proceedings before the courts and Revenue Department. It is the manager again that is given the power to represent the Devaswom in all proceedings before the courts and Revenue Department. The manager again comes in for having custody of the jewels and valuables under a double-lock system. The manager is given complete powers of control over the temple servants and a right of appeal against his orders is provided only to the Board. Further the manager is to submit to the Board diaries of the work done by him and also an abstract of the resolutions of the managing committee and is also given the power to submit a report on the administration of the temple direct to the Board together with the resolutions of the managing committee Again the manager is given power to summon extraordinary or special meetings and power is also given to him to issue notices of the meeting along with the agenda. The manager is to give inspection of the papers relating to the agenda at the premises of the temple during office hours to the members of the committee. The minute book is to be again in the custody of the manager. If any of the resolutions of the committee are considered by the manager to be against the interests of the temple, he may refer the matter to the Board with his reasons and power is also given to the manager not to give effect to the resolutions of the committee till the Board passes final orders. The managing committee no doubt, have got power to inspect and check the accounts of the manager, but they can only bring to the notice of the Board any defects that they may find. Power is also given to the Board to issue instructions from time to time in regard to the internal management of the temple. 39. An extract of the several clauses of the scheme clearly shows that substantially it is the manager and the Board that are in control and management of the administration of this institution and its properties. Even the managing committee constituted as it is, has absolutely no voice worth mentioning in any of these matters. The grievances of the hereditary trustees are in our opinion, quite legitimate. Even the managing committee constituted as it is, has absolutely no voice worth mentioning in any of these matters. The grievances of the hereditary trustees are in our opinion, quite legitimate. The scheme does not give due recognition to the rights of the hereditary trustees and the manager is not given the proper place which he should occupy in such circumstances. He is given even overriding powers to decide whether the resolutions of the committee are in the interests of the temple or not. It is he who represents the institution in all court litigations. It is he who operates the Bank account and he looks up only to the Board for directions. Though no doubt, the provisions regarding budget and the giving of instructions from time to time can certainly be correlated to the provisions of the Act, they cannot certainly be cut from the rest of the scheme. 40. In view of the fact that the whole basis of the scheme falls to the ground, we have no option but to quash the scheme and issue a writ directing the respondents to forbear from enforcing the provisions of the scheme. The petitioners are not entitled to any other relief claimed in their application. 41. We also make it clear that this judgment does not in any way preclude the settling of a proper scheme according to law. 42. As observed by Mr. Justice M. S. Menon in W. P. 1049/53 (M), we would also state that in the framing of such a scheme the principles adopted by the Madras High Court in A.S. No. 453 and 914 /1950 regarding the Sri Thirukachankurichi temple can be looked into for very useful guidance. 43. In the result, W. P. 71 of 1952 is allowed to the extent indicated above, but without any order as to costs. 44. W. P. 209 of 1953 relates" to Kadambari Chuzhali Bhagavathi Devaswom for which there is one hereditary trustee. Though the same legal arguments advanced in the W P. 71 of 1952 were advanced in this application also, our decision on those points will govern this application also. 45. This institution is governed by a revised scheme as finalised by the Hindu Religious Endowments Board on 12-12-1949. Though the same legal arguments advanced in the W P. 71 of 1952 were advanced in this application also, our decision on those points will govern this application also. 45. This institution is governed by a revised scheme as finalised by the Hindu Religious Endowments Board on 12-12-1949. The main attack on this scheme, in so far as this application is concerned, is the power given to the Board to appoint a manager for the temple under Clause.5 and the subsequent clauses relating to the power given to such manager. The same arguments advanced in the other Writ Petition namely, about the hereditary trustee having only the husk, were also advanced here. It will be seen from Clause.5 that the hereditary trustee has absolutely no voice in the appointment of a manager and the subsequent clauses also show that it is the manager who has got full powers over the administration of the temple. He is given power to receive all monies and make disbursements and keep custody of the jewels, moveables and other records of the temple. The temple servants are to work under the immediate control of the manager and the disciplinary powers are also given to the manager over those people. The manager again is given power to represent the temple in all legal proceedings. Again power is given to the manager to consider whether the suggestions of the trustee are practicable and if he finds them to be impracticable or harmful to the interests of the temple, he is given the power to keep in abeyance those suggestions. 46. The same criticism that we made of the scheme in W. P. 71 of 1952 applies with equal force to this scheme also. The hereditary trustee is practically nowhere and his rights have been very seriously abridged and curtailed by confirming of very large powers on the manager and the Board under the scheme. We do not want to repeat what all we have stated in W. P. 71 of 1952. Here again the matter will have to be re adjusted having due regard to the rights of the hereditary trustee. 47. C1.2 no doubt, directs the vesting of the properties etc., in the Deities. This clause can stand. We do not want to repeat what all we have stated in W. P. 71 of 1952. Here again the matter will have to be re adjusted having due regard to the rights of the hereditary trustee. 47. C1.2 no doubt, directs the vesting of the properties etc., in the Deities. This clause can stand. Though clause (3) provides for the administration of the temple and its properties by the hereditary trustee, that administration can be only subject to the provisions of the scheme. That means Clause.3 will be subject to all the other clauses of the scheme which confer enormous powers on the Board and the manager. Therefore, this clause also will have to be redrafted after the other clauses are similarly modified recognising the due rights of the hereditary trustee. As there is no purpose in allowing Clause.1 and 2 alone to stand when the entire basis of the scheme falls to the ground, we issue the writ as prayed quashing the scheme and directing the respondents to forbear from enforcing the provisions of the scheme. The petitioner is not entitled to get any other relief. 48. We also make it clear that this judgment does not in any way preclude the settling of a proper scheme according to law. 49. As observed by Mr. Justice M.S. Menon in W.P. 1049 of 53 (M), we would also state that in the framing of such a scheme the principles adopted by the Madras High Court in A.S. Nos. 458 and 914 of 1950 regarding the Sri Thirukachankurichi Temple can be looked into for very useful guidance. 50. In the result, W. P. 209 of 53 (M) is allowed to the extent indicated above, but without any order as to costs.