Karnataka High Court
Sri Ananteshwara And ... vs The Dy. Commissioner For Hindu ... on 14 September, 1987
Equivalent citations: AIR1989KANT57, AIR 1989 KARNATAKA 57
ORDER
1. Petitioners are the Trustees of a Temple situated in Udupi. They challenge the letter of the 2nd respondent issued to the Ist respondent. In this, the 2nd respondent stated that he was not recognising the present Trustees as Trustees of the temple. He says that, on 10- 11-1986, proper publication before the constitution of the Board of Trustees, was suggested and that severaldevotees have complained about the election of these Trustees as illegal. Therefore, 2nd respondent slated that for the purpose of constituting a fresh Board of Trustees, the meeting of the devotees may be called for which he directed wide publicity as suggested therein. Copy of this letter dated 28-2-1987 was enclosed by the Ist respondent to his letter dt. 6-3-1987 addressed to the Managing Trustee. The 1st respondent pointed out the expectations expressed by the 2nd respondent in his letter about due publicity for election of Trustees and sought compliance with the same.
2. Petitioners question these directions and challenge the powers of the respondents refusing to recognise , their election as Trustees, under the following circumstances :
3. The temple in question is governed by the provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951 (as amended in 1954) -- for short referred as 'the Act.' Formerly the Area Committee constituted under the Act used to give directions regarding appointments of Trustees. Since 20 years this has been abandoned and thereafter, as a matter of convention, the devotees elect seven Trustees for a period of 5 years. Though, there are no prescribed rules regulating the holding of the election, the practice has been, for the Managing Trustee to publish notice of the meeting of devotees in the notice-boards of' the temple, village panchayat office of the Shivally village and a copy being sent to the Tahsildar, Udupi. The contents of notice are also published,by tom-tom in the lanes of the Shivally vill4ge.
4. It is by following this practice, trustees were elected by the devotees on 9-7-1981. Similar steps were taken -for the meeting of devotees held on 5-7-1986, by publicising the, notices. In the meeting held on 5-7-1986,present petitioners were elected for a period: of 5 years with effect from 9-7-1986. This fact was intimated to the first respondent., Petitioners specifically state that no direction or any suggestion was received from the respondents regarding the conduct of. The election prior to 5-7-1986. The impugned orders were received in March 1987.
5. A few of the devotees got themselves impleaded as respondents (referred hereinafter as the impleaded respondents). These impleaded respondents contend that the first amongst the petitioners calls himself as the Managing Trustee and he has been manipulating the election of Trustees without recourse to proper publicity being given to the election meeting. Therefore, representations were made to the authorities to direct the Managing Trustee to convene the devotees' meeting after wide publicity and publication in local news papers, to elect the Board of Trustees. In view of this, the authorities had issued a direction dt. 2-7-1986 to the Managing Trustee to convene the meeting by giving wide publicity of the meeting to be held. Since this direction was ignored, present impugned orders were issued.
6. Respondents 1and 2 though represented by the learned Government Pleader, have not filed any statement of objections.
7. From the respective contentions, the, questions that arise are, whether respondents 1 and 2 are competent to direct the holding of a fresh election and if so, under what circumstances such a direction can be issued.
8.. The convention grown up during the course of last 20 years, as pleaded in para 2 of the writ petition is not denied by anyone. The impleaded respondents in their application also state that the Area Committee under the Act ceased to exercise any power, since the relevant provisions of the Act were held unconstitutional by this Court.Obviously, the reference is to the decision of this Court in Mukundaraya Shenoy v. State of Mysore,1959 Mys LJ 708 : (AIR 1960 Mys 18) and Eranna. v. Commr. for Hindu Religious and Charitable Endowments, (1970) 1 Mys LJ 170 (AIR 1970 Mys 191) - [this latter decision was affirmed in Commr. for Hindu Religious and Charitable Endowments v. Eranna, AIR 1974 SC 20761.
9. The combined effect of these decisions is to hold that the rights conferred on a religious denomination by Art, 26 of the, Constitution, are available to Hindus in general, since, Hindu religion itself is a religious denomination of a large magnitude. Therefore, provisions of Ss. 39, 41, 42 and 44 which were struck down in Mukundaraya Shenoy's case are unenforceable against any Hindu temple. Sections 39, 41, 42 of the Act provide for appointment of Trustees by the authorities under the Act. '
10. Section 45(3) was specifically upheld, which conferred power upon the concerned authorities to appoint a fit person to discharge temporarily the functions of a Trustee during the period of suspension of the Trustee. Section 45 empowers suspension, removal or dismissal of a Trustee for misconduct as enumerated therein.
11. Sections 18 and 20 were upheld; S. 18 confers a power on the Commissioner to call for the records of his subordinate authorities to satisfy himself as to the regularity of any proceeding or, correctness, legality or propriety of any decision or order made therein. Section 20 vests in him the power of general superintendence and control over the administration of all religious endowments.
12. Sections 39 to 42 were struck down since those provisions empowered the authorities to appoint the Trustees. The appointment of Trustees has to be done by the concerned religious denomination, as incidental to its fundamental right under Art. 26. Therefore, the members of the religious-denomination are entitled to choose, as part of their right to administer the endowment, the Trustees.
13. Then the question is, if the election of trustees is incidental to the right of administration, will not such a right come under the power of general superintendence and control vested in the Commissioner under S. 20 of the Act:
14. The Act was enacted for the better administration and governance of Hindu religious and charitable institution s and endowments. This object has not been, so far held to be violative of any of the fundamental rights. In fact, a regulatory provision of law facilitates due exercise and enjoyment of the relevant fundamental right.The scope of S. 20 has been explained by the Supreme Court in The Cornmr., Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, thus:
"S..20 of the Act describes the, powers of the Commissioner in respect, to religious endowments and they include power to pass any orders that may be deemed necessary to ensure that such endowments are properly administered and that their income is duly appropriated for the purposes for which they were founded. Having regard to the fact that the Mathathipati occupies the position of a trustee with regard to the Math which is a public institution, some amount of control of supervision over the due administration of the endowments and due appropriation of their funds is certainly necessary in the interests of the public and we do not think that the provision of this section by itself offends any fundamental right of the Mahant.
We do not agree with the High Court that the result of this provision would be to reduce the Mahant to the position of a servant. No doubt the Commissioner is invested with powers to pass orders, but orders can be passed only for the purposes specified in the section and not for interference with the rights of the Mahant as are sanctioned by usage or for lowering his position as the spiritual head of the institution. The saving provision contained in S. 91 of the Act makes the position quite clear. An apprehension that the powers conferred by this section may be abused in individual cases does not make the provision itself bad or invalid in law."
15. These observations will have to be understood, in the case of a temple, as referring to the concerned religious denomination, because, in the 'case of a temple, its administration is a matter of concern of the said denomination. But superintendence and control over such administration vests in the Commissioner under S. 20 of the Act.
16. Scope of superintendence and control cannot be narrow. Power of superintendence, comprehends within it the power to exercise effective control over the actions, performance and discharge of duties by those, over whose action, this power operates. It includes administrative control enabling the authority enjoying such a power, to give directions to the subordinate, to discharge its administrative duties and functions in the manner required as indicated by the superior authority. The power includes, a power to give directions to perform the duty in a certain manner and to refrain from performing one or the other duty. Superintendence means keeping a check and to watch over the work of another. It is not merely a negative thing so as to keep a watch, but would imply giving of direction, guidance and even instructions. It may, In a given situation enable the authority to ask one who is being supervised to forebear from doing a thing and directing someone else to do that thing vide State of Bihar v. A. C. Saldhana, , . The word 'control' means, check, restrain or influence . But this power under S. 20 will not enable the Commissioner to take over the administration himself or through someone else. He cannot nominate the Trustees or managers. Actual administration will have to be by the denomination concerned, directly or by delegation.
17. Whether a particular order or direction issued under S. 20 will offend the fundamental rights of the concerned denomination may have to be tested, when such an occasion arises. State has a special responsibility to see that Trusts and religious institutions function properly and the scope of S. 20 of the Act will have to be understood, with reference to those objects also.
18. If the petitioner institution is not properly administered, neither the devotees nor the authorities are left without a remedy. This includes the power vested in the Deputy Commissioner to frame a scheme, under S. 58 of the Act. This power has been upheld by this Court in K. Raghavendra Naik v. State of Mysore, (1974) 1 Kant LJ 217 : (AIR 1974 Kant 129).
19. In the case on hand, admittedly there is no scheme governing the temple in the matter of its administration. Convention is to have elected Trustees, including a Managing Trustee. If an election is not properly, conducted, the right of the denomination to administer the institution through the elected Trustees will get frustrated. Therefore, the Commissioner has the power and duty to examine whether the Trustees are properly elected. He can issue appropriate order direction or instruction to regulate the election. He may evolve a proper procedure to conduct the election. He may observe whether all eligible voters had a proper opportunity to participate in the election..Such a power flows from his power of superintendence and control over the administration of the endowment in question.
20.In this case, petitioners specifically assert that election held on 5-7-1986 was according to the established custom. They, assert that the Managing Trustee did not receive any instructions, earlier, to 5-7-1986 as to the manner of conducting the election. These are not denied.
21.The impleaded respondents point out to the letter dt. 2-7-1986 (Annexure 3) issued by the Ely. Commissioner. This letter is not addressed to anyone. It says that the calling of the meeting of the devotees to elect the Trustees shall be published in local daily newspapers. It is not known whether it was served in time on the Managing Trustee. Further, this is not a direction or order issued by the Commissioner under the Act. Source of power, of the Dy. Commissioner to issue such a direction is riot explained to me by anyone.
22. The impugned orders are of Feb. and Mar., 11987. The Commissioner in his letter dt' 28-2-1987 (Annexure G) addressed to the Dy. Commissioner says that there has been com plaints from the devotees, that there was no due publication, before the Board of Trustees was constituted. He has not enquired into the complaint. He assumes the complaint as an established fact. He informs, the Dy. Commissioner that the present Board of Trustees cannot be recognised. This letter was sent by Dy. Commissioner to the Managing Trustee with his letter of 6-3-1987 and & Dy. Commissioner directed the holding of a fresh election after publicising the meeting to be held, in the newspapers and also by distributing printed pamphlets, etc.
23. If Trustees were elected validly in the meeting held on 54-1986, they cannot be unseated without giving them an opportunity to meet the allegations made in respect of their election. The elected Trustees should have an opportunity to show cause against any action against their respective elections. They have every right to challenge the competence of the authority taking the action. In this case such an opportunity has been denied. There is no allegation that anyone of the petitioners is ineligible, to be a Trustee or anyone has incurred disqualification.
24. In these circumstances, impugned letters or orders, Annexures F and G are liable to be quashed. Accordingly, writ wition is allowed and Annexures 'F' and 'G' are quashed.
No order as to costs.
25. Petition allowed.