JUDGMENT <NAME>, J.

1. The first civil revision petition raises a question in regard to the scope and effect of Order 1, Rule 10, Civil P.C. The suit was filed by the plaintiff in <ORG> for a declaration that he was a duly elected member of <ORG>. He impleaded as defendants: (1) <ORG> and (2) the President of that Board. He prayed not only for a declaration as stated above but also for the issue of a mandatory injunction directing the defendants to recognize him as a duly elected member of <ORG>. The <ORG> applied to the lower Court for being added as a party. That application was refused by the District <NAME> and in this civil revision petition, his order is attacked by the <ORG>.

2. The allegations in the plaint are shortly summarised thus by the learned District Munsif:

On 30th March 1928 the President, <ORG>, <NAME>, convened a special meeting of the <ORG> for the election of a member to <ORG>. When the meeting commenced, there were 24 members present besides the president. A motion for adjournment was supported and opposed equally and on the casting vote of the president, the motion for adjournment was carried. The president and the 12 members who voted for the adjournment went away. The 12 members who opposed the motion thought that the adjournment was illegal and invalid and convened a meeting and elected one of their own number as chairman and in such meeting, the plaintiff was declared elected as a member of <ORG>. It is alleged that the adjournment was illegal because out of the 12 members who voted for the adjournment two members had ceased to be so, long before the date and they had no right to take part in the meeting at all and as such their votes were improperly received. The plaintiff learns that the notification of the election in the <ORG> has been withheld and a fresh meeting would be convened for the purpose. <NAME> asserts that he had been elected, wants a declaration accordingly and an injunction directing the defendants, <ORG>, <NAME> and its President to recognize him as such and to transact all business of <ORG> in co-operation with and after due notice to him.

3. In the plaint there are allegations impeaching the conduct of the President of <ORG> and questioning the legality of the notification in the <ORG> published by the <ORG>. But there is not a single allegation made either against defendant 1 or 2. Why did the plaintiff then implead as defendants, those against whom he had no grievance and omit to join the parties, whose action, he alleges, prejudiced his right? This may, at first sight appear surprising; but the truth seems to be, that the President of <ORG> informed the <ORG> that in his view the plaintiff's election was valid. This apparently led the plaintiff to believe that if he adopted this method he would easily succeed in the suit. The application of the <ORG> was opposed both by the plaintiff and the defendants. The question is, is it proper, in the circumstances, to make the <ORG> party?

4. Section 47 (1), Madras <ORG> Act (1920) enacts that the members of <ORG> other than certain members, shall be elected by <ORG> "in the prescribed manner." It is under this section that the plaintiff claims to have been elected. The local Government has power under Section 199 (b) to make rules with reference to all matters relating to elections of members of <ORG>. Rules have been accordingly made for the election of members to <ORG> by <ORG>. The following are the relevant rules:

Rule 2. "The President of <ORG> shall thereupon summon a meeting of <ORG> for the purposes of proceeding with the election."

<NAME> 6. "If there are more candidates than there are vacancies, the votes of the members present at the meeting shall be taken."

Rule 8. "The candidate who obtains the largest number of votes... shall be declared to have been duly elected.... The election shall be notified in <ORG>.

Rule 11. Immediately after the meeting, the president or the presiding member shall forward the names of the elected candidates to the <ORG> for publication in <ORG>.

5. Now, turning to the Act, Section 19 enacts that the election of a member of <ORG> shall be notified in the prescribed manner.

6. The manner has been prescribed by Section 8 to which I have already referred. Section 11 says that every member of <ORG> shall hold office for a term of three years from the date of publication of the notification under Section 19. There are several sections in the Act vesting in the <ORG> power of control over <ORG>. Section 45 shows that the power extends even to dissolving the <ORG> for incompetence, for continued default or misconduct. But the section with which we are most directly concerned is Section 38. It empowers the Local <ORG> inter alia, to suspend by order in writing, the execution of any resolution of any Local <ORG>.

7. Presumably it was under this section that the Government acted, when it issued the notification to which the plaintiff takes exception in his plaint. In that notification, the Government declare that the motion for the adjournment of <ORG> was legally carried, that the continuation of the meeting by a section of the members and the election of the plaintiff as a member of <ORG> cannot be recognized and notified in <ORG>. The notification adds : " a fresh meeting of <ORG> should be convened for the election...of a member to <ORG>."

8. Under Section 38, I have pointed out, that <ORG> may suspend the execution of any resolution of <ORG>, can it or can it not veto, the election of a member under this section? It is at a meeting that the candidate is to be elected. The name has to be proposed and seconded, the votes of the members are to be taken and the candidate who obtains the largest number of votes is to be deemed to have been elected. The procedure indicated shows that a member is elected by a resolution of <ORG>. The word "resolution" is defined in <ORG> as a formal decision, determination or expression of opinion on the part of a deliberative assembly or other meeting.

9. Now then, if the decision of the meeting, that the plaintiff has been duly elected, amounts to a resolution, the right to suspend it undoubtedly vests in the <ORG>. In this case, it has exercised that right and suspended the execution of the resolution. The plaintiff has thus a grievance against the <ORG>. It was their act that has interfered with his alleged right. Is the <ORG> then not a proper party to the suit:

10. The material portion of O.1, Rule 10, runs thus:

The <ORG> may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the <ORG> to be just, order..., that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the <ORG> may be necessary in order to enable the <ORG> effectually and completely to adjudicate upon and settle all the questions involved in the suit be added.

11. As I observed in the course of the argument, If this application had been made to me as a trial Judge, I should, without a moment's hesitation, have allowed it. A long argument became necessary on account of certain observations of <NAME>, J.. in <CITATION> for Hindu Religious Endowments, Madras A.I.R. 1926 Mad. 886, which case, the lower Court has purported to follow. In an elaborate judgment, that learned Judge has formulated certain principles in regard to the addition of parties under Order 1, Rule 10. He thinks that the effectual and complete adjudication mentioned in the section, refers to a decision, only as between the parties to a suit,. The learned Judge, on that basis, argues,, the judgment in a suit being only interpartes, a plaintiff cannot be compelled; to implead as a defendant a person against whom he seeks no relief. I may quote his very words from the judgment:

The very basic principle of judgment interpartes is that the judgments are not judgements in rem, but declaratory and operative-only as between them. The plaintiff being generally dominus litus, I fail to see on what principle of justice he can be compelled to fight against some other litigant not of his own choice unless such a process is required by a positive rule of law.

12. This view seems to ignore the distinction which the section makes between two classes of persons:

(1) "Persons who ought to have been joined;

(2) persons whose presence is necessary to enable the <ORG> to completely and effectively adjudicate upon and settle all the questions involved in the suit.

13. The first part deals with necessary parties, and the second, with proper parties. True, a decision is binding only on the parties to the suit; but does it follow that a <ORG> is bound to decide a dispute in the absence of those persons whom it most vitally concerns? With greater respect, I find myself unable to follow the case relied upon by the lower <ORG>. The view taken in that case is opposed not only to the plain wording of the section but also to a large body of authority. <NAME> v. <NAME> [1882] 5 Mad. 52 is a direct ruling on the point. That was a decision on the Code of 1877, but in this respect, there is no difference between that and the present code. The plaintiff in that case sued defendant 1, on a bond executed in his favour. Defendant 1 pleaded that the plaintiff and his uncle formed a joint Hindu family, that the bond was taken on behalf of that family and that he had made a part payment to the plaintiff's uncle. The latter, supporting the statement made by defendant 1, sought to intervene; and the plaintiff resisted his application. The learned Judges (Sir <NAME>, <NAME>, and <NAME> <NAME>,) thus deal with the question : Is the effectual adjudication mentioned in the section only as between the parties to the suit? Or does the section contemplate a final decision as between not only them, but also third parties interested in the dispute? They state their answer in terms which leave no doubt on the paint.

To accept the more restricted interpretation involves the addition of words' which we do not find in the section, namely, " between the parties to the suit," and there can be few, if any, questions which cannot be determined between the parties to the suit one way or other, and of which the determination, if they be material, will, as between the parties to the suit not be final. On the other hand, the interpretation warranted by the terms would enable the <ORG> to avoid conflicting decisions on the same question which would work injustice to a party to the suit, and finally and effectually to put an end to the litigation respecting them. No better instance of wisdom of such a rule could be afforded than is presented by the suit before the <ORG>.

14. Another important ruling on the point is <CITATION>  11 C.L.J. 426. which directly answers one of the questions raised by <NAME>, <NAME> was the plaintiff and <NAME>. was the defendant. The suit was to eject the defendant on the ground that the holding was non-transferable. <ORG> a third party, applied to be made a party to the suit, alleging that although he conveyed the holding in favour of the defendant, the conveyance was in reality a mortgage by conditional sale and that he himself was still in possession. The learned Judges, reversing the order of the lower Court, held that <ORG> should have been made a party. <NAME>, J., after stating that the whole matter in controversy ought to be determined in one suit thus observes:

We must hold, therefore, that the petitioner is a proper party. The question remains, whether he can be joined as a defendant although the plaintiff objects to or does not desire the joinder. Now, as explained in the case of <NAME> v. <NAME> [1895] 2 Q.B. 321 the <ORG> has the power to add a person as defendant even though the plaintiff objects to such joinder.

15. I may quote another paragraph from the judgment:

The object of the legislature is to avoid multiplicity of suits, and to ensure that the dispute may be finally determined at the same time in the presence of all the parties interested without the delay and expense of several actions and trials.

16. It is rightly pointed out in the judgment, if serious embarrassment or inconvenience would be caused to the plaintiff by the addition of a new party, the Court would be very reluctant to force an additional defendant into the action.

17. The Indian authorities are thus decidedly opposed to the view expressed in <CITATION> for Hindu Religious Endowments, Madras. Do the English cases give countenance to a different rule? Montgomery v. <NAME>  2 Q.B. 321 deals fully with the question. The action was by a shipowner for a declaration that he is entitled to freight against the consignee of the goods who had no property in the cargo. It was held that the shippers of the cargo who applied to be added as defendants are proper parties and that they should be added in order that they might counter claim against the plaintiffs, damages for short delivery and injury to cargo. <NAME>, M.E. says:

Then comes the question whether, for the purpose of preventing the useless and expensive formality of having two separate actions, the <ORG> may not add the owners of the cargo as defendants in the original action and so settle the whole matter in one action and by one trial.

18. The learned Master of the <NAME> explains that it was one of the great objects of the Judicature Acts, that where there is one subject-matter out of which several disputes arise all parties should be brought before the <ORG> and all disputes should be determined in one and the same action. <NAME>, L. J., says that to refuse the application would amount to a frittering away the effect of the rule.

19. In <NAME> v. <ORG>, the learned Judge relies upon two cases : <NAME> v. <NAME> and <NAME> v. <NAME> [1892] 1 Ch. 487. I may point out that both these cases were, in the arguments, brought to the notice of the Court of appeal which decided <NAME> v. <NAME>. Referring to the first of them, Lord <NAME>, <NAME> says:

With regard to the case of <NAME> v. <NAME> [1877] 2. C.P.D. 80 it is to be observed that it was decided at an early stage of the decisions with regard to the meaning of the Judicature Acts, and, though I do not say that the actual decision was wrong, I do not think that all the statements made in the judgments could now be supported.

20. Esquimalt and <ORG> v. <NAME> [1920] A.C. 358, decided by <ORG> is another case which supports the view, I am taking. The question there was, is the Attorney General a proper party? Lord <NAME> in his judgment observes as follows:

With regard to the first of these contentions their Lordships are clearly of opinion that the Attorney General ought to be before the <ORG>. It is quite true that the title of the <ORG> to the land in question is not in controversy, nor is the <ORG> asked to do any act or grant any estate or privilege, but in the event of the plaintiff's success, the right existing in the <ORG> and consequent upon the grant to the respondents will cease. If these interests lay in a third party, he ought certainly to be added as defendant, and that is the best means of tasting the necessity of the attendance of the <ORG>.

21. These cases establish that even against the plaintiff's consent a new party may be impleaded as a defendant and that he may be so added though he may thereby be in a position to counter claim against the plaintiff.

22. I am, therefore, satisfied both on principle and authority that the contention of the learned <ORG> Pleader is correct. I reverse the order of the lower Court and direct that the <ORG> be added as defendant to the suit. The plaintiff shall pay the costs of the petitioner in the lower Court and in this Court. I fix the fee of the <ORG> Pleader at Rs. 100. This disposes of C.R.P. 1215 of 1928.

23. I shall now deal with the second C.R.P. 1259 of 1928. Ten members elected by <ORG> were serving on <ORG>. One of the ten seats became vacant and it was to fill up that seat, that the election which I have described was held. Subsequently by efflux of time, the remaining nine members also vacated their seats. This led to a fresh election by <ORG> who elected ten 'members, treating the election of the plaintiff as void. One of these ten also applied to <ORG> to be made a party and <ORG> refused his application. What the applicant says is; that he effectually represents all the ten members. It is said that they are the persons whom the result of the suit affects, for their election will be invalid, if the plaintiff is held to have been validly elected. In my opinion, the proper course is to direct that all of them should be brought on the record as defendants and that is the order I make on this petition. I make no order as to costs.


ORDER

1. The assesses, a banking company, had the assessment for the year ending on December 31, 1968, completed on October 4,1969. Subsequently, however, the assessment was reopened under Section 147(a) of the Income-tax Act, 1961, to bring to tax a sum of Rs. 54,485 in respect of interest suspense account. It is, however, according to the assessee, the sums representing interest on loans, recovery of which was considered doubtful.

2. Incidentally be it noted that the assessee had disclosed this sum of Rs. 54,485 in the balance-sheet as unrealised amount of interest along with the return filed by it and the Income-tax Officer had accepted the return and as a matter of fact had excluded that amount in the assessment order completed on October 4, 1969.

3. The factual score depicts that in terms of a notice under Section 147(a) of the Act, the assessment was reopened and a sum of Rs. 54,485 was subjected to tax on the ground that the interest accrued and due on the loans advanced by the bank was the income of the bank for the relevant assessment year and the assessee has failed to disclose this income in the return filed earlier.

4. In the appeal against the reassessment order, the Commissioner of Income-tax (Appeals) upheld the order of the Income-tax Officer and on further appeal, the <ORG>, however, reversed the view of the Commissioner and held that the instructions of <ORG> contained in circular dated October 6, 1952, would govern the case and the reopening was not justified and on a reference before <ORG> under Section 256(1) of the Income-tax Act, <ORG> answered the reference in favour of the assessee upon recording its approval on to the order of the <ORG>.

5. The records depict that two questions were raised before <ORG> (see [1986] 157 ITR 509) namely (page 510):

"1. Whether, on the facts and in the circumstances of the case, <ORG> is right in law in holding that the provisions of Section 147(a) are not attracted ?

2. Whether, on the facts and in the circumstance of the case, <ORG> is right in law in holding that the interest of Rs. 54,485 taken directly to interest suspense account is not assessable to income-tax ?"

6. So far as the second question is concerned, <ORG> recorded that the matter need not be gone into by reason of the circular dated October 6, 1952, issued by <ORG>. Neither do we feel it necessary to go into the issue any further.

7. Turning attention to the first question as regards the provisions under Section 147(a) be it noted and as the facts depict, there is no failure on the part of the assessee in furnishing the particulars pertaining to the above noted sum as not recoverable for the relevant accounting year and the statements filed along with the original return disclosed the full details of the aforesaid account. There is, therefore, no failure on the part of the assessee to disclose fully and truly the material facts necessary for the assessment years for the respective years and as such Section 147(a) has no manner of application and is not attracted in the facts of the matter under consideration. <ORG> on consideration of the facts came to the conclusion that the <ORG> was justified in coming to the said finding and we also record our concurrence therewith.

8. Incidentally this issue came for consideration before this court in a batch of cases on more or less identical situations and this court while dealing with this matter finally, recorded that the question as regards reopening of the assessment under Section 147(a) of the Act would not arise further. The question in the facts of the matter under consideration is thus covered by the judgment of this court in <CITATION>  158 ITR 102.

9. In that view of the matter, these appeals fail and are dismissed. No order as to costs.


JUDGMENT <NAME>, Kt., C.J.

1. It is well settled that the succession to temple offices is governed by user which is taken to represent the intentions of the founder, and it is not disputed that in this part of India the user in the case of temple archakas is that the office is hereditary and descends in the ordinary course of succession to women who are not themselves competent to perform the duties of the office by ministering in the temple and perform them by deputy. The opinion of the pandits in 1853 in <NAME> v. <NAME> (1853) M.S.D.A., 261 shows that this was then the recognized usage, The question appears to have first come before the <ORG> in 1910, but since that time there have been numerous decisions where the user has been recognized and enforced, and all the Hindu members of the <ORG> with one exception have been parties to these decisions which also are conformable with the decisions of other High <ORG>s. The only authority the other way is the judgment of <NAME>, in <NAME> v. <NAME> (1905.) I.L R., 38 Mad., 850 who considered that on principle a personally disqualified heir could not inherit the office and delegate the duties to others. In the argument before us it was again contended that the decision of <ORG> in <CITATION> (1913) I.L.R., 35 All., 283 (P.C.) was in accordance with this view and must be taken to have overruled the other cases. In that case the office of archaka had descended to the widow and daughter of the last male archaka, and the question was whether the daughter was to be succeeded by her son or by the reversioner of the last male holder. The archakas were gossains and there was a usage among them that females continued to belong to their father's kul or family after marriage. On this ground apparently the daughter had been allowed to fill the office even though married to a member of the Bhat community who was incapable of filling it. No question arose in that case as to the right of the widow and her daughter after her to fill the office; and it does not appear whether while they held it they performed the duties in person or by deputy. What their Lordships had to consider was, whether on the daughter's death the office should go to her son and her descendants, a line of heirs who, as <NAME>, would be incapable of performing its duties, or should revert to the male heirs of the last male holder. Their Lordships at p. 288 observe:

The rule as to the shebaitship being vested in the heir of the founder must from the very nature of the right, be subject to the condition that the devolution in the ordinary line of descent is not inconsistent with or opposed to the purpose the founder had in view in establishing the worship and they say later on at page 289 that:

to allow the plaintiff's claim to an admittedly Ballav temple where the rights are performed according to Ballav ritual, which it is clearly established they cannot perform, would in their Lordships' judgment, defeat the purpose for which the worship was established.

2. A contrary decision would have involved the devolution of the office to a line of heirs incompetent to perform its duties. Moreover, the plaintiff's claim in that case was not shown to be in accordance with any well recognized user which is the best evidence of the founder's intentions. I do not consider that this decision of their Lordships warrants us in overruling the numerous decisions of this <ORG> in conformity with the decisions of other <ORG>s by which the widow and daughter of the last male archaka are held entitled in accordance with the established user to succeed to the office of archaka discharging its duties by deputy and to transmit it to their heirs, who, as male heirs are preferred to female, will generally be competent, to perform the duties in person, <NAME>, J., for whose opinion I have a great respect, considers, if I rightly understand him, that the established custom of female succession to this office is of so mischievous and objectionable a character that it cannot have been intended by the founder. That view is not shared by <NAME> J., who has considered this aspect of the case in the Order of Reference, or by the other Hindu members of the <ORG> who have considered the question. We should not in my opinion be justified in overruling on this ground the numerous decisions of this <ORG> in which the usage has been recognized and enforced, unless its mischievous character had been established beyond all doubt or controversy. This has not been done and I feel bound to answer the question in the negative.

<NAME>, J.

3. I have carefully reconsidered my decision in <NAME> v. <NAME> (1915) I.L.R., 38 Mad., 850 in the light of the later decisions of this Court quoted by my learned brother Mr. Justice <NAME> in his Order of Reference, also of his own keen and yet considerate criticisms (if I may be permitted to say so) of my said decision and also of the opinions of my Lord and of Mr. Justice <NAME> on this reference. I am, notwithstanding, unable to convince myself that my opinion was erroneous. On the other hand, the decision of their Lordships of <ORG> in <CITATION> (1913) I.L.R., 35 All., 283 (P.C.) lends, in my opinion, strong support to my conclusion. With respect, I am unable to agree with Mr. Justice <NAME> that the widow and daughter of the last male <NAME> of the Ballavacharya Grossain sect in <ORG> case must have been not competent to perform the duties of the office and must have "employed deputies to perform the duty" and that their enjoyment of the emoluments of the office during their lifetime must be due to their having performed the duties through such deputies and not directly. On the contrary, it seems to me clear from the report that the out-of-date unshastraic custom obtaining in the South by which Dharmapathnies (who are Sahadharmacharinees of their husbands) are considered incompetent to pronounce mantrams and do religious duties along with (and even solely in the absence of) their husbands does not obtain among the Ballavacharya Grossains, one of the Vnishnavite sects which are in several respects much more liberal in the treatment of women and birth-sudras than other sects though many Vaishnavite sects might have become very degenerate in other respects.

4. I am further unable to see that my conclusion as to <NAME>'s opinion and the weight of the authority of the texts quoted by him being in my favour is wrong.

5. A general rule has been laid down by their Lordships of <ORG> that where a person is incompetent to perform the rites of a religious office, it would defeat the very purpose for which the worship was established if he (including of course 'she') is allowed to inherit the office. Any usage inconsistent with such purpose is clearly invalid in law. [See <NAME> v. <NAME> (1917) I.L R., 40 Mad., 709 (P.C.)].

6. I am unable to appreciate any distinction in principle between the incompetency of the claimant to the office by reason of sex and the incompetency due to any other cause. I do not think that the pronouncement of their Lordships of <ORG> can be got round through any such distinction.

7. Though 'law' is not always logical and though the narrow point referred to us relates to inheritance by a person incompetent by reason of sex alone for performing the duties of a religious office, I do not think that considerations of the difficulties which are aggressively prominent when we take the four analogous cases (1) of a male heir being incompetent by reason of conversion to another faith when the inheritance opens, (2) of his becoming incompetent after the inheritance opens, (3) of a female heir being incompetent by reason of conversion before the inheritance opens and (4) becoming incompetent after the inheritance opens, can be kept out of mind in deciding the present reference, especially having regard to the provisions of Act XXI of 1850.

8. Coming to the weight to be given to practice and usage, many pernicious and unshastraic usages have crept into the Hindu religions and social systems during dark medieval days and through efflux of time. Most of them entered gradually and insidiously through the tendency of that subtle materialism which sometimes parades as strict orthodox spirituality. The letter is exalted over the spirit, the so-called hereditary rights are given more importance than the performance of the religious duties, instead of the rights being kept as a very subordinate adjunct and appurtenance of the duties, and religious offices and caste status are looked upon more as intended for the means of livelihood and for the enjoyment of worldly power and material possessions than as things bestowed upon one for helping all humanity in its evolutionary progress towards the common goal.

9. I respectfully agree with my Lord that the law as at present settled by the decisions of <ORG> is that unless the usages in connexion with religious institutions and offices are manifestly immoral or opposed to public policy or opposed to the intentions of the founders of a religious trust or manifestly injurious to the trust, the <ORG> are not entitled to go back for the law to the purer, more liberal and more ancient shastraic; fountain heads. The question therefore narrows itself to this: Whether the usage relied on by the respondents is manifestly injurious (both in its material and moral aspects) to the religious institution, and whether it could have been in conformity with the intention of the founder of the trust. It is on this question that I feel that there is real and substantial difference of opinion between myself and the learned Judges who have considered this question in this <ORG> since 1910. My angle of vision in respect of these questions might have been affected by my longstanding interest and sensitiveness in the cause of Hindu religious and social reform on shastraic lines. I find, however, that after making sincere attempts to allow as much discount as possible to the above factor, my view of the seriousness of the evils of usage in question has not been materially affected. While the incumbent of a religious office must be allowed to employ a temporary deputy when a temporary disqualification or inability occurs, such as birth and death pollutions, absence from home owing to urgent private affairs, etc., I am clear in my mind that a usage permitting a permanently disqualified claimant to receive the emoluments of a religious office and to appoint his or her own deputy to do the duties is of such a seriously mischievous character that it ought not to be recognized. I regret I am unable to agree with Mr. Justice <NAME> that the performance of the duties through the deputy of a female disqualified heir is not less beneficial to the religious institution then the performance of the next qualified male heir. It is notorious that the deputy is usually chosen on the principle of a Dutch auction. The man who agrees to allow the widow to retain the largest portion of the emoluments of the office and to receive the least as his own remuneration is given the place of deputy. Thus when the usually small remuneration in rice and cash attached to the archaka office does not go to the deputy who does duties, the deputy cannot be expected to perform the duties at all satisfactorily. I do not see why a religious office should be considered less important than any other kind of office. To allow even the office of a peon to be held by a permanently disqualified man because he undertakes to appoint a deputy, out of the remuneration of the office is, in my opinion, entirely mischievous and it ought not to be allowed even if it is sanctioned by usage.

10. In the result, my answer to the question referred is that so long as a Hindu widow is held incompetent by reason of her sex from doing the duty of a priestly office, she is also incompetent to inherit the service and emoluments of the office.

Spencer, J.

11. Without laying down any rule as to particular institutions, in which there may be a special custom that females cannot succeed to the office and emoluments, the trend of decisions in this Court has certainly been to treat females as competent to succeed to the archakaship of Hindu temples in this Presidency. <CITATION> (1910) 8 M.L.T., 325: s.c. (1910) M.W.N., 445, <CITATION> (1914) 27 M.L.J., 179, <NAME> v. Savundrathammal (1914) 16 M.L.T., 423, <CITATION> (1917) I.L.R.,40 Mad., 105 and <NAME> v. <NAME> Second Appeal No. 2078 of 1915 (unreported).

12. The judgment of <NAME>, J., in <NAME> v. <NAME> (1915) I.L.R., 38 Mad., 850 was an exception to the course of decided cases and was not adopted by <NAME>, J., who sat with him. I do not think it contains reasons of such weight as to justify a departure from the principle of stare decisis. I would answer the question referred to us in the negative.


PETITIONER: <NAME> Vs. RESPONDENT: STATE OF MADHYA PRADESH AND OTHERS DATE OF JUDGMENT: 01/04/1969 BENCH: <NAME>, J.C. BENCH: <NAME>, J.C. HIDAYATULLAH, M. (CJ) RAMASWAMI, V. MITTER, G.K. GROVER, A.N. CITATION: 1970 AIR 93 1970 SCR (1) 156 1969 SCC (1) 853 CITATOR INFO : RF 1977 SC1825 (51) D 1979 SC 418 (1) RF 1981 SC 873 (13) R 1983 SC1155 (22,23,25) RF 1986 SC1205 (12) ACT: Constitution of India- Article 19(1)(8)- Notification by <ORG> having effect of banning slaughter of bulls and bullocks-If violative of the fundamental right under Art. 19(1)(g)- Principles for considering constitutionality of law restricting or prohibiting carrying on a business. HEADNOTE: Certain bye-laws framed by the Jabalpur Municipality, which permitted the slaughter of various animals including bulls -and bullocks, were confirmed by the respondent <ORG> Government in 1948. By a notification on January 12, 1967, in exercise of its powers under s. 430 of Madhya Pradesh Municipal Corporation Act 23 of 1956, <ORG> cancelled the confirmation of certain bye-laws "insofar as the bye--laws relate to the slaughter of bulls and bullocks". The petitioner challenged the constitutionality of the notification by a writ petition under Art. 32 on the, ground that it infringed his fundamental right under Art. 19(1) (g) of the Constitution. It was contended on behalf of the respondent <ORG> that (1) its power to rescind confirmation of the bye-laws could not be challenged by reference to Art. 14 or Art. 19 of the Constitution, because the power vested in the Government to confirm the bye-laws carried with it the power to rescind such confirmation; and (2) that since every person desiring to use a slaughter house, had to apply for and obtain a licence, which may be refused, and if given was liable to be withdrawn, no person may insist that he shall be given a licence to slaughter animals in a slaughter-house. HELD: Allowing the petition, The, impugned notification, though technically within the competence of <ORG>, directly infringed the fundamental right of the petitioner guaranteed by Art. 19(1)(g). It could be upheld only if it was established that it sought to impose reasonable restrictions in the interests of the general public and a less drastic restriction would not ensure the interest of the general public. [161 D] The sentiments of a section of the people may be hurt by permitting slaughter of bulls and bullocks in premises maintained by a local authority. But a prohibition imposed on the exercise of a fundamental right to carry on an occupation, trade or business will not be regarded as reasonable. if it is imposed not in the interest of the general public, but merely to respect the susceptibilities and sentiments of a section of the people whose way of life, belief or thought is not the same as that of the claimant. [161 H] The power to issue bye-laws indisputably includes the power to cancel or withdraw the bye-laws, but the validity of the exercise of the power to Issue and to cancel or withdraw the bye-laws must be adjudged in the light of its impact upon the fundamental rights of persons affected thereby. When the validity of a law placing restriction upon the exercise of fundamental rights in Art. 19(1) is challenged, the onus of proving to the satisfaction of the <ORG> that the, restriction is reasonable lies upon the <ORG>. A law requiring that an act which is inherently dangerous, noxious or 157 injurious to public interest, health or safety or is likely to prove a nuisance to the community, shall be done under a permit or licence of an executive authority, is not per se unreasonable and no person may claim a licence or permit to do that act as of right. Where the law providing for grant of a licence or a permit confers a discretion upon an administrative authority regulated by rules or principles expressed or implied, and excersiable in consonance with rules of natural justice, it will be presumed to impose a reasonable, restriction. Where, however, power is entrusted to an administrative agency to grant or withhold a permit or licence in its uncontrolled discretion, the law ex facie infringes the fundamental right under Art. 19(1) [16O  <CITATION> ,  S.C.R. 629; <CITATION> ,  2 S.C.R. 610; and <CITATION> ,  2 S.C.R. 375; referred to. JUDGMENT:

ORIGINAL JURISDICTION : Writ Petition No. 60 of 1969. Petition under Art. 32 of the Constitution of India for the enforcement of fundamental rights.

<NAME>, <NAME> and <NAME>, for the peti- tioner.

<NAME>, for the respondents.

The, Judgment of the Court was delivered by <NAME> The petitioner <NAME> who carries on the vocation of slaughtering bulls and bullocks at the Madar Tekdi Slaughter-House at Jabalpur claims a declaration that the notification dated January 12, 1967 issued by the Governor of Madhya Pradesh in exercise of the powers conferred under sub-s. (3) of S. 430 of the Madhya Pradesh Municipal Corporation Act 23 of 1956 Cancelling confirmation of the bye-laws" made by <ORG> for inspection and regulation of slaughter-houses "in so far as the bye-laws relate to slaughter of bulls and bullocks" infringes the fundamental freedoms guaranteed under Arts. 14 and 19 of the Constitution.

Section 5(37) of the Madhya Pradesh Municipal <ORG> Act 23 of 1956 defines "municipal slaughterhouse". By s. 66(m) it is made obligatory upon the <ORG> to make adequate provision for the construction, maintenance and regulation of a slaughter-house. By sub-s. (1) of s. 257 of the Act the <ORG> may and when required by the <ORG> shall fix places for the slaughter of animals for sale, and may with the like approval grant and withdraw licences for the use of such premises. By sub-s. (3) it is enacted that when premises have been fixed under sub-s. (1) no person shall slaughter any such animal for sale within the city at any other place. By sub-s. (4) bringing into the city for sale, flesh of any animal intended for human consumption, which has been slaughtered at any slaughterhouse, or place not maintained or licensed under the Act, without the written permission of the Commissioner, is prohibited. Section 427 authorises the <ORG>, with the sanction of the <ORG>, to make bye-laws consistent with the provisions of the Act and the rules made thereunder for carrying out "the provisions and intentions" of the Act. The bye-laws may, inter alia, relate to the management of municipal markets and the supervision of the manufacture, storage and sale of food, and for that purpose may regulate the sanitary conditions in municipal slaughter-Houses. By S. 430 it is provided that no bye-law made by the <ORG> under the Act shall have any validity until it is confirmed by the <ORG>. Power is conferred upon the <ORG> by S. 432 to modify or repeal either wholly or in part any bye-laws in consultation with the <ORG>. In exercise of the power conferred by s. 178(3) of the C.P. and Berar Municipalilties Act 2 of 1922, bye-laws were made by the Jabalpur Municipality in January 1948. Those bye- laws continued to remain in force under the Madhya Pradesh Municipal <ORG> Act 23 of 1956. The bye--laws controlled and regulated the conditions under which animals may be slaughtered in the premises fixed for that purpose and provided for inspection and for ensuring adequate precaution in respect of sanitation and for slaughter of animals certified by competent authorities as fit for slaughtering. By the notification issued by the Jabalpur Municipality a slaughter-house at a place called 'Madar Tekdi" was fixed as premises for slaughtering animals. Under that notification bulls and bullocks were permitted to be slaughtered along with other animals like buffaloes,- sheep, goats and pigs. But on January 12, 1967, the State <ORG> issued a notification "cancelling the confirmation of the bye-laws" insofar as they related to slaughter of bulls and bullocks at Madar Tekdi Slaughter- House. That notification places restrictions upon the right of the petitioner to carry on his hereditary vocation. The question of permitting slaughter of cows, bulls and bul- locks has, for a long time, generated violent sentimental differences between sections of the people in our country. After the enactment of the Constitution the controversy relating to the limits within which restrictions may be placed upon the slaughter of cows, bulls and bullocks was agitated before this Court in <CITATION> (1). In that case the validity of provisions made in three State Act s which imposed a total ban upon slaughter of all categories of "animals of the species of bovine cattle" was challenged. These Act s were the Bihar Preservation and Improvement of Animals Act, 1955, the U.P. Prevention of Cow Slaughter Act, 1955, and the C.P, (1)S.C.R.-629 and Berar Animals Preservation Act, 1949. The petitioners who followed the occupation of butchers and of dealing in the byproducts of slaughter-houses challenged the validity of the three Acts on the plea that the Acts infringed their fundamental rights under Arts. 14, 19 (1) (g) and 25 of the Constitution. This Court held-(i) that a total ban on the slaughter of cows of all ages and calves of cows and of she- buffaloes, male and female, was reasonable and valid; (ii) that a total ban on the slaughter of she-buffaloes or breeding bulls or working bullocks (cattle as well as buffaloes), so long as they were capable of being used as milch or draught cattle, was also reasonable-and valid and

(iii) that a total ban on the slaughter of she-buffaloes, bulls and bullocks (cattle or buffalo) after they ceased to be capable of yielding milk or of breeding or working as draught animals was not in the interests of the general public and was invalid.

Attempts were made from time to time to circumvent the judg- ment of this Court in <NAME> case("). After that judgment, Legislatures of the State of Bihar, U.P. and Madhya Pradesh enacted the minimum age of animals to be slaughtered. The Bihar Act prohibited slaughter of a bull, bullock or shebuffalo unless the animal was over 25 years of age and had become useless. Under the U.P. Act slaughter of a bull or bullock was permitted only if it was over 20 years of age and was permanently unfit. Under the Madhya Pradesh Act slaughter of a bull, bullock or buffalo, except upon a certificate issued by the competent authority, was prohibited. The certificate could not be issued unless the animal was over 20 years of age and was unfit for work or breeding. This Court held in <CITATION> (2) that the ban on the slaughter of bulls, bullocks and she-buffaloes below the age of 20 or 25 years was not a reasonable restriction in the interests of the general public and was void. The Court observed that a bull, bullock or buffalo did not remain useful after it was 15 years old, and whatever little use it may then have was greatly offset by the economic disadvantages of feeling and maintaining unserviceable cattle. This Court also held that the additional condition that the animal must, apart from being above 20 or 25 years of age, be unfit was a further unreasonable restriction. On that ground the relevant provisions in the Bihar, U.P. and Madhya Pradesh Act s were declared invalid. The present case is apparently another attempt, though on a restricted scale, to circumvent the judgment of this Court in <NAME> case(1)'. The bye-laws of the Jabalpur Municipality permitted slaughter of bulls at bullocks. Alicence (1)  S.C.R. 629. (2)  2 S,C.F,. 61 0.

had to be- obtained for that purpose. Slaughter of animals in places outside the premises fixed by the Municipality was prohibited by S. 257(3) of the Act, and sale of meat within the area of the Municipality of the animals not slaughtered in the premises fixed by the Municipality was also prohibited. Under the notification by which the bye-laws were issued in 1948, bulls and bullocks could be slaughtered in premises fixed for that purpose. But by the notification dated January 12, 1967, confirmation of the bye-laws insofar as they related to bulls and bullocks was cancelled. The effect of that notification was to prohibit the slaughter of bulls and bullocks within the Municipality of Jabalpur. This cancellation of the confirmation of Bye-laws imposed a direct restriction upon the fundamental right of the petitioner under Art. 19(1)(g) of the Constitution. In the'affidavit filed on behalf of the <ORG> of Madhya Pra- desh two principal contentions were raised :-(1) the power to rescind confirmation of the bye-laws cannot be challenged by reference to Art. 14 or Art. 19 of the Constitution, because the power vested in the Government to confirm the bye-laws carries with it the power to rescind such confirmation and (2) that since every person desiring to use a slaughter-house had to apply for and obtain a licence, which may be refused, and if given was liable to be withdrawn, no person may insist that he shall be given a licence to slaughter animals in a slaughter-house. The power to issue bye-laws indisputably includes the power to cancel or withdraw the bye-laws, but the validity of the exercise of the power to issue and to cancel or withdraw the bye--laws must be adjudged in the light of its impact upon the fundamental rights of persons affected thereby. When the validity of a law placing restriction upon the exercise of fundamental rights in Art. 19(1) is challenged, the onus of proving to the satisfaction of the <ORG> that the restriction is reasonable lies upon the <ORG>. A law requiring that an act which is inherently dangerous, noxious or injurious to public interest, health or safety or is likely to prove a nuisance to the community, shall be done under a permit or licence of an executive authority, it is not per se unreasonable and no person may claim a licence or permit to do that act as of right. Where the law providing for grant of a-licence or a permit confers a discretion upon an administrative authority regulated by rules or principles expressed or implied, and exercisable in consonance with rules of natural justice. it will be presumed to impose a reasonable restriction. Where, however, power is entrusted to an administrative agency to grant or withold a permit or licence in its uncontrolled discretion, the law ex facie , infringes the fundamental right under Art. 19(1). Imposition of restric-on the exercise of a fundamental right may be in the form of control or prohibition, but when the exercise of a fundamental right is prohibited, the burden of proving that a total ban on the exercise of the right alone may ensure the maintenance of the general public interest lies heavily upon the <ORG>.

This <ORG> in <CITATION> (1) held that the word "restriction" in Arts. 19(5) and 19(6) of the Constitution includes cases of "prohibition" also; that where -a restriction reaches the stage of total restraint of rights special care has to be taken by the <ORG> to see that the test of reasonableness is satisfied by considering the question in the background of the facts and circumstances under which the order was made, taking into account the nature of the evil that was sought to be remedied by such law, the harm caused to individual citizens by the proposed remedy, the beneficial effect reasonably expected to result to the general public, and whether the restraint caused by the law was more than what was necessary in the interests of the general public. The impugned notification-, though technically within the competence of <ORG>, directly infringes the fundamental right of the petitioner guaranteed by Art. 19(1)(g ), and may be upheld only if it be established that it seeks to impose reasonable restrictions in the interests of the general public and a less drastic restriction will not ensure the interest of the general public. The <ORG> must in considering the validity of the impugned law imposing a prohibition on the carrying on of a business or profession, attempt an evaluation of its direct and immediate impact upon the fundamental rights of the citizens affected thereby and the larger public interest sought to be ensured in the light of the object sought to be achieved, the necessity to restrict the citizen's freedom, the inherent pernicious nature of the act prohibited or its capacity or tendency to be harmful to the general public, the possibility of achieving the object by imposing a less drastic restraint, and in the absence of exceptional situations such as the prevalence of a state of emergency- national or local--or the necessity to maintain essential supplies, or the necessity to stop activities inherently dangerous, the existence of a machinery to satisfy the administrative authority that no case for imposing the restriction is made out or that a less drastic restriction may ensure the object intended to be achieved. The sentiments of a section of the people may be hurt by permiting slaughter of bulls and bullocks in premises maintained by a local authority. But a prohibition imposed on the exercise of a fundamental right to carry on an occupation, trade or business will not be regarded as reasonable, if if is imposed not in (1) 2 S.C.R. 375, the interest of the general public, but merely to respect the susceptibilities and sentiments of a section of the people whose way of life, belief or thought is not the same as that of the claimant.

The notification issued by <ORG> must, there- fore, he declared ultra vires as infringing Art. 19 (1) (g) of the Constitution.

It is unnecessary to consider the validity of s. 430 of the Act which was sought to be challenged in the petition or to consider whether there has been any infringement of the guarantee of the equality clause of the Constitution. The petitioner will be entitled to his costs in this Court. R.K.P.S. Petition allowed.