LexSRI SADASIB PRAKASH BRAHMACHARI versus THE STATE OF ORISSA
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4. . - S.C.R. SUPREME COURT REPORTS SRI SADASIB PRAKASH BRAHMACHARI v. THE STATE OF ORISSA (with connected petitions) [VIVIAN BOSE, JAGANNADHADAS, B. P. SINHA, J A.FER IMAM and CHANDRASEKHARA AIYAR, J J.] 43 Constitution of India,· Art. 19(1)( f )-Orissa Hindu Religious Endowments Act, 1951 as amended by Orissa Act XVIII of 1954- Sa. 4t(l)(b), 42(7), 44(2) ands. 79(A)-Whether ultra vires the Con- stitution. Sections 38 and 39 of the Orissa Hindu Religious Endowments Act, 1939 (Orissa Act IV of 1939) as amended by Orissa Act XVIII of 1953 were declared unconstitutional and void by the Supreme Court in Mahant Sri J agannath Ramanuj Das v. The State of Orissa ([1954] S.C.R. 1046) on the ground that legislation in so far as it authorised the framing of a scheme by the Commissioner along with his associates and declared such determination as final without any scope for correction thereof by judicial intervention was an unrea- sonable restriction on the right of the head of the Math as respects his interest in the Math which is a right to hold property within the meaning of Art. 19(1)(£) of the Constitution. After the judgment dated 16th March 1954 delivered by the Supreme Court in the case of Mahant Sri Ja.gannath Ramamtj Das v. The State of Orissa, ([1954] S.C.R. 1046) the Orissa Legislature passed the Orissa Act XVIII of 1954 purporting to amend not the 1939 Act which was then in operation but the Orissa Act II of 195g which bad not then come into force. The Orissa Act XVIII of 1954 received the assent of the Presi- dent on the gnd December 1954 and came into force at once and thus the Orissa Act II of 1952 became pro tanto amended and modi- fied. The 1952 Act so amended came into force from the 1st Janu- ~ 1955 by virtue of a notification dated 22nd December 1954 issued under the provisions of s. 1(3) thereof which provided that . the Act was to come into force on such date as the State Govern· ment may by notification provide. The five petitions under Art. 32 of the Constitution in the pre· sent case challenged the validity of various sections of the Orissa Act II of 1952 as amended by Act XVIII of 1954 on the principles laid down in the case of Mahant Sri J agannath Ramanuj Das v, The State of Orissa, ([1954] S.C.R. 1046). Held, that ss. 42(1)(b), 42(7), 44(2) as well as s. 79(A) of Orlssa Hindu Religious Endowments Act, 1951 (Orissa A~t II of 1952) as amended by Orissa Act XVIII of 1954 are not unconstitutional and 1956 January 20 44 SUPREME COURT REPORTS [1956] 1956 ultra vires and the contention that the provisions of ss. 42 and 44 of the present Act to the effect (1) that a scheme can he framed by Sri Sadasib the Commissioner alone on a report of the Assistant Commissioner Prakash on such inquiry as he thinks fit and not by the Commissioner in Brahmachari association with one or more Government Officers to be appointed v. for the purpose by the Government (2) that there is no right of suit The State of Orissa for challenging the validity or the correctness of the scheme framed ht the Commissioner but there is only an appeal to the High Court, still continue to be unreasonable restrictions on the right of Ma- tbadipathi as in the case of Mahant Sri Jagannath Ramanuj Das v. The State of Orissa [(1954) S.C.R. 1046] is without substance. In the initial stage of the framing of the scheme under the pro- visions of the present Act there is first of all something in the na- ture of a preliminary enquiry by a judicial officer of the rank of a Munsif and this is followed by a regular and full enquiry before the Commissioner who is of the rank of a Subordinate Judge. The en- quiry before the Commissioner is assimilated to and is governed by the provisions relating to the trial of suits by enjoining that, as far as may be, it is to be in accordance with the provisions of the Code of Civil Procedure relating to trial of suits. While, therefore, under the prior Act the enquiry before the Commissioner might well have been of the nature of an executive enquiry by an executive officer, the enquiry under the present Act is by itee!f in the nature of a judicial enquiry by judicial officers followed up by a right of regular appeal to the High Court. A scheme framed with reference to such a. procedure cannot ipso facto be pronounced to be in tbe nature of an unreasonable restriction on the rights of the Mabant. The legis· latnre might well have thought that
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