Document Fragment View

Matching Fragments

(5) Every order passed by the Commissioner under sub-section (1) and sub-section (4) shall be published in the manner prescribed.

(6) Any person aggrieved by the order of the Commissioner passed either under sub-section (1) or under sub-section (4), may, within sixty days from the date of publication of the order, prefer an appeal to the Court."

The rival contentions give rise to the question:

whether any of the provisions of Sections 50 to 55 in Chapter V of the Act is ultra vires Article 25 or 26 of the Constitution? Chapter V of the Act deals with maths and specific endowments attached thereto. Section 47 defines "mathadhipati" to mean any person whether known as Mahant or by any other name in whom "the administration and management of a math or specific endowment attached to a math are vested." In the concept of mathadhipati, both the elements of power to hold property and duty to properly maintain it are blended and neither can be detached from the other. The Mahant, therefore, as the spiritual head of the math is entrusted with the administration and management of the math or the specific endowment. The personal or beneficial interest of the Mahant in the endowment attached to the math is manifested in his power of administration and disposal of the property. His right to administer and manage the property endowed to the math and other rights of similar character are vested in the office of the Mahant and, therefore, they are legal rights attached to the management and the administration of the property endowed to the math. He holds the office by custom and usage of the institution. He acts for the benefit of the institution of which he is the head. The Mahant as an aesthetic holds the property and, therefore, it is not heritable like ordinary devolution of the property since he has completely severed all his mundane connections with his natural family; cut off from the mundane affairs and is ordained to impart religious education to his disciples and teaching of the religious scriptures etc. to the followers of the religion or the sect. Therefore, the ordinary rules of succession to Mahantship do not apply.
Chapter V does not per se attempt to regulate the propagation or preaching of the tenets by Mahant or of the math or religious beliefs to which the math is founded or it seeks to propagate. The definition of the mathadhipati for the purpose of the Act is expressly confined only in relation to the administration and management of a math or specific endowment attached to the math and vested in him as mathadhipati. Mahant is not a mere manager or custodian of the property. In his office as spiritual head, he has power to dispose of certain properties only for the benefit of the institution, incur expenditure for the math, to carry on religious worship for the disciples and to maintain himself consistent with his office. Though he has undoubted power to apply the funds of the institution, it would always be subject to certain obligations and duties equally governed by customs and usage of the institution. By operation of Section 48, Section 18 to 22, 25 and 28 in Chapter III of the Act shall not apply to the maths or specific endowment attached thereto. Though Section 2(29) defines `trustees' to include mathadhipati, in the light of Section 47, by juridical metamorphosis, Mahant is a trustee of the math in relation to the management of the property of the math or the specific endowment attached to the math. He has to discharge the duties of a trustee and is answerable as such. The definition of "trustee" was used to reiterate the position he holds in general law of trust in relation to maths and in law he is enjoined to hold it astrustee. However, the word `trustee' does not include his right as a spiritual head of the math or to be a hereditary trustee. The definition of "hereditary trustee" under Section 2(16) which was abolished under the Act, therefore, does not apply nor it includes a Mahant who is spiritual head nominated by his predecessor mathadhipati or regulated under the Act for the reasons stated by Shri Rao to which we agree as it is axiomatic that office of mathadhipati is not hereditary or devolved by succession. In most cases it is regulated by nomination by his predecessor under the Act; and in the absence of nomination, by consultation with Mahant of similar maths.

Commissioner of Hindu Religious & Charitable Endowments, Hyderabad & Ors. [(1977) 2 SCR 878 at 886], this Court had held that mathadhipati is entitled to maintain all the properties of the math or the specific endowment and allowed power to manage or administer the properties endowed to the math or specific endowment. Since Chapter V specifically deals with maths and Mahants, the general provisions in Chapter III relate to the administration and management of Hindu charitable and religious institutions and endowments to the extent of inconsistency stand excluded by Section 48 from their operation to maths and specific endowments attached to it. Section 49 relates to fixation of the dittam known as scale of expenditure with which we are not concerned in this case.

The power of the Commissioner to frame a scheme under Section 55 of the Act is not absolute but is conditioned upon reasonable belief on the basis of the report submitted by the Deputy Commissioner or the Assistant Commissioner having jurisdiction over the math or suo motu; but in later event he should have material on record for entertaining a reasonable belief that the affairs of the math and its properties are being mismanaged or that funds are misappropriated or that the mathadhipati grossly neglected in performing his duties. Prior enquiry in that behalf is duly made in accordance with the Rules prescribed thereunder. The enquiry would include an opportunity to the mathadhipati to satisfy the Commissioner that the report or the material, the foundation for the formation of adverse o pinion against the Mahant, is not well founded or does not exist. After holding such an enquiry and recording the finding in that behalf as is implied in sub-section (1), the Commissioner is required to frame a scheme to administer and manage the properties attached to the math or specific endowment. In the scheme so framed, he is required [a] to appoint an executive officer for day to day administration of the properties; and [b] to constitute a committee consisting of not more than five persons for the purpose of assisting him in the administration of the math as a whole or any part of the administration of all the endowments of such math or specific endowments. Under the proviso to sub- section (2) (b) "the members of such committee so chosen shall be among the persons having interest in such math or endowment". In other words, the members of the committee will be persons who are genuinely interested in the proper management of the math, management of the properties and useful utilisation of the funds for the purpose for which the math or specific endowment is created. The paramount consideration is only proper management of the math and utilisation of the funds for the purpose of the math as per its customs, usage, Sampardayams and philosophy and not the self-benefit of persons intervening in the management of the math.