A scheme for the administration of a religious institution must conform to the provisions of the Constitution and the relevant statutory provisions. It should not interfere with the religious practices and the administration of the institution by a denomination other than the one to which the institution belongs.

R. L. NARASIMHAM, C. J.

( 1 ) THE material facts have been fully dealt with in my judgment in Srinivasa ramanuja Das v. Commr. of Orissa Hindu Religious Endowments Board O. J. C. No. 120 of 1957: (AIR 1958 Orissa 83) delivered today. It is therefore unnecessary to repeat them in this judgment.

( 2 ) THE main question for consideration in this application is whether the various detailed provisions made in the scheme dated 14-1-1954 settled by the endowment Commissioner, Orissa and his associate officer for the administration of Dakshinaparswa Math, are invalid as either offending the Constitution or the relevant Sections of the Orissa Hindu Religious Endowments Act 1951 (Orissa Act ii of 1952) (hereinafter referred to as the new Act ). In Sadashib Prakash v. State of Orissa (S) AIR 1956 SC 432 their Lordships of the supreme Court pointed out that though by virtue of Section 79-A of the new Act a scheme framed under the Orissa Hindu Religious Endowments Act 1939 (Orissa act IV of 1939) (hereinafter referred to as the Old Act) shall be deemed to be a scheme framed under the new Act, it was open to the aggrieved party to attack the scheme on any of the grounds available under the present law.

( 3 ) THE scheme was framed prior to the decisions of the Supreme Court in commissioner of Hindu Religious Endowments v. Lakshmindra Thirthe Swamiar 1954 SCR 1005: (AIR 1954 SC 282); Jagannath Ramanuj Das v. State of Orissa 1954 SCR 1046: (AIR 1954 SC 400) and Ratilal Panachand v. State of Bombay, 1954 SCR 1055: (AIR 1954 SC 888) in which the scope of Article 26 (b) and (d) of the Constitution was fully explained. In the Shirur Math case 1954 SCR 1005: (AIR 1954 SC 282) it was pointed out by their Lordships of the Supreme Court at page 1019 (of SCR): (at p. 288 of AIR): "in the conception of Mahantaship both the elements of office and property, of duties and personal interest are blended together and neither can be detached from the other. The personal or beneficial interest of the Mahant in the endowments attached to an institution is manifested in his large powers of disposal and administration and his right to create derivative tenures in respect to the endowed properties and these and other rights of a similar character invest the office of the mahant with the character of a proprietary right which, though anomalous to some extent, is still a genuine legal right". It was further pointed out that

"the Mahant has the right to enjoy this property or beneficial interest so long as he is entitled to hold his office. To take away this beneficial interest and leave him merely to the discharge of his duties would be to destroy his character as a mahant altogether. . . . . A mahant's duty is not simply to manage the temporalities of a math. He is the head and superior of spiritual fraternity and the purpose of the math is to encourage and foster spiritual training by the maintenance of a competent line of teachers who could impart religious instructions to the disciples and followers of the math and try to strengthen the doctrines of the particular school or Order of, which they profess to be adherents. This purpose cannot be served if the restrictions are such as would bring the matadhipathi down to the level of a servant under a State department (page 1020 ibid (SCR): (at p. 289 of AIR ))".

While discussing the scope of Article 26 (b) and (d) their Lordships pointed out that 'religion' includes also religious practices according to the tenets of a particular sect and there can be no legislation interfering with these religious practices in view of the fundamental right guaranteed by Article 26 (b ). As regards the properties of a math, though by virtue of Clause (d) of article 26 the Legislature has power to make a law for the administration of those properties yet that law cannot completely take away the power of administration from the denomination to which the endowment belongs and vest it in any other body. In other words any law providin