Judgement

JAGANNADHADAS, J. : These are five petitions under Art. 32 of the Constitution by the heads of five Maths in the State of Orissa of which four know as Mahiparakash Math, Uttaraparswa Math, Dakshinaparswa Math and Radhakant Math are situated in Puri and the fifth known as Manapur in near Tirtol in Cuttack district.

In all these petitions certain provisions of the Orissa Hindu Religious Endowments of the Orissa Hindu Religious Endowments Act 1951 (Orissa Act 2 of 1952) as amended by the Orissa Act 18 of 1954 are challenged as being unconstitutional and ultra vires. Since the questions raised are mostly common, all the petitions are dealt with by this single judgment.

2. These petitions have a background of previous history of legislation and litigation which it is necessary to set out in order that the questions raised may be properly appreciated. The first statutory interference by the Provincial Legislature with the management of Hindu religious endowments in Orissa was by the Orissa Hindu Religious Endowments Act, 1939 (Orissa Act 4 of 1939) which came into operation on 31-8-1939. This was modelled on a similar Act operating in the Province of Madras at the time.

The validity of the Act as a whole as also of certain provisions thereof were challenged by the Mahants of the various Maths in Orissa, about 30 in number, by instituting a suit in the year 1940. The suit was on behalf of the individual Maths who figured a plaintiffs (including three of the present petitioners, viz., Mahants of Mahiparakash Math, Dakhinaparswa Math and Radhakanta Math) and also in a representative capacity under O. I., R. 8, Civil P. C. (Vide printed record of this Court in Case No. I of 1950). That suit was dismissed by the District Judge of Cuttack and came up in appeal to the High Court of Orissa.

The High Court upheld the validity of the Act and of the various sections thereof by its judgment dated 13-9-1949, which is reported in Gadadhar Ramanuj Das v. Province of Orissa 1950 Orissa 47. An appeal was filed therefrom to the SC in January, 1950, which was numbered as Case No. 1 of 1950 Jagannath (AIR V 41) (B). This appeal remained pending for over four years and came up for final hearing in February, 1954.

During the period of pendency of the appeal the Orissa Legislature passed two further Acts relating to Hindu religious endowments. The first of them was Orissa Act 2 of 1952 which was an Act to "amend and consolidate the law relating to the administration and governance of Hindu religious institutions and endowments in the State of Orissa".

and which on its coming into force was intended to repeal the pre-existing Orissa Act 4 of 1939. This Act became law on 16-2-1952, by the assent of the President. It did not, however, come into force at once on account of sub-s. (3) S. 1, therein which provided that the Act is to "come into force on such date as the State Government may, by notification, direct".

No such notification was issued during the pendency of the appeal in the SC. This Act was, in fact, brought into force much later, i. e., only as from 1-1-1955, by a notification of the Government of Orissa dated 22-12-1954, published in the Orissa Gazette dated 31-12-1954.

While thus the 1952 Act remained on the statute book without its coming into force, other independent statutory provisions amending the Act of 1939 were passed and brought into operation. The first of them was Orissa Ordinance 2 of 1953 which was promulgated by the Governor of Orissa on 16-5-1953. This was later superseded and substituted by Orissa Act 18 of 1953 which came into operation of 28-10-1953.

By these two successive legislative measures, the Act of 1939 was amended on certain respects and it is the Act so amended that was in operation during the period from May, 1953 to March, 1954, falling within the later portion of the pendency of Case No. 1 of 1950 in the SC.

Some time in 1953, subsequent to the month of May, the Commissioner of Hindu Religious Endowments, Orissa,