Karnataka High Court
Sri G. C. Prabhuswamy vs Special Deputy Commissioner, Tumkur ... on 5 August, 1996
Equivalent citations: ILR1997KAR192, AIR 1997 KARNATAKA 253, (1997) ILR (KANT) 192 (1997) 1 KANT LJ 261, (1997) 1 KANT LJ 261
Author: Tirath S. Thakur
Bench: Tirath S. Thakur
ORDER
1. The challenge in this writ petition is against an order issued by the 3rd Respondent-Commissioner for Religious and Charitable Endowments, dated 4-10-1982 creating the post of an Additional Archak for performance of pooja and other functions in what is known as Sri Channabasavcswara Swamy Temple at Gubbi. An appeal preferred against the said order before the Karnataka Administrative Tribunal at Bangalore having failed, the petitioner has come up with the present writ petition assailing the order of Commissioner as also that passed by the Tribunal.
2. The challenge arises in the background of the following facts:
'Sri. Channabasaveswara Swamy Temple' at Gubbi is a Muzarai Institution, and comprises two temples one within the town at Gubbi and the other outside the town limits. The main temple called Gaddige is said to be located outside the town, while the smaller temple called Ulsavmurthy is located inside the town. With the increase in the number of devotees visiting the two temples, it was found difficult for a single Archak to perform poojas in both the temples. Representations are said to have been received by Special Deputy Commissioner from devotees asking for an Additional Archak for the temples to prevent inconvenience to the devotees visiting the same. The matter appears to have been referred to the Assistant Commissioner for a preliminary enquiry, on receipt of a report from whom, the Special Deputy Commissioner convened the meeting of the Dharmadarshies (Trustees of the temple) on 26th May, 1981. The Dharmdarshies including the petitioner herein who claims to be the heriditary Archark of the temple unanimously passed a resolution recommending creation of an additional Archak's post to tide over the difficulties being faced in handling pooja of thec temple by a sjngle Archak. These recommendations were eventually submitted to the Commissioner for Religious and Charitable Endowments Respondent No. 3 herein, who by his order dated 15-9-1982 Annexure-E to the writ petition accorded sanction for the creation of the post of an additional Archak on a salary of Rs. 110/ - per month and asked the Special Deputy Commissioner to appoint a suitable and qualified person to the said post. Consequently, the 2nd respondent was appointed as additional Archak for the temples.
3. Aggrieved, the petitioner preferred an appeal before the Endowments Commissioner. A revision was also preferred by him against the appointment of the second respondent, before the Karnataka Appellate Tribunal which, succeeded and was allowed by its order dated 30-1-1985. The matter was remitted back to the Commissioner for Religious and Charitable Endowments, Bangalore to provide a fuller opportunity Endowments, Bangalore to provide a fuller opportunity to the petitioner before dispend-ing of the same in accordance with law. Upon remand the Commissioner by the composite order dated 17-3-1986 up held the creation of the post as also the appointment of the second respondent against the same. The petitioner then appealed to the Tribunal, which was dismissed by its order dated 13-1-1991. He has now come up with the present writ petition assailing the orders aforesaid as already indicated earlier.
4. Mr. U.L. Narayana Rao, learned Counsel for the petitioner raised a two fold comment against the impugned orders. Firstly it was urged that the order passed by the Commissioner for Religious and Charitable Endowments was without jurisdiction.
Reliance in this connection was placed by him upon the provisions of Section 35 of the Mysore State Religious and Charitable Institutions Act 1927 according to which an appointment to the Office of poojary in Muzrai Institution was permissible only where no claimant entitled to succeed to the office was available. It was urged that the situation contemplated by Section 35 was the only situation in which a Muzrai Officer could possibly make any appointment. Since the instant case argued Mr. Rao there was no question of the office of the poojary being unclaimed, the Muzrai Officer could not have possibly made any appointment. Alternatively it was urged that the appointment of the second respondent as additional archak was invalid as he was not qualified to hold the said post interms of the qualifications prescribed for the Archaks as per the Circular issued on the subject and contained in Muzrai Manual.
5. Mr. Gopal, learned counsel for_R.2 and Mr. Ramesh, learned Government Advocate for the State and its functionarises on the other hand urged that the necessity to appoint an Archak was felt on account of the fact that the two temples were situated at a distance of I Km from each other making it impossible for a single archak to attend to the duties of pooja etc. at both the place simultaneously. It was contended that the temples being Muzrai Institutions were interms of Section 3 and 4 of the Act aforesaid controllec by the Muzrai Commissioner and that since the Government was in respect of all such Muzrai institutions, the Chief Controlling Authority in all matters connected with such institutions, the appointment of an additional archarks in a situation like the present could not be found fault with. It was urged that the challenge to the appointment of the second respondent on the ground that he did not fulfill the conditions of eligibility was misplaced not only because no such ground was urged at any earlier stage but also because respondent No. 2 was duly qualified to work and be appointed as a Archak.
6. I have given my anxious consideration to the submissions made at the bar. the cretion of the post of additional archak as indicated earlier was preceded by a resolution passed by the committed of Dharmadarshies on 26-5-1981. It is not disputed that the petitioner is also a member of the said committee and was present on 26-5-1981 when the said resolution was passed. Having thus agreed to the creation of an additional archark's post for handling performance of pooja in the two temples, on the premise that it is difficult for a single archak to satisfactorily perform all sueh'du'ties, it is not open to the petitioner to turn around and question either the creation or the consequent appointment made on that basis. The tribunal has in this regard correctly held that the petitioner having participated in the deliberations of the committee on 26-5-1981 and agreed to the creation of an additional archak could not possibly go back on the said stand or contend that he was not heard before the orders creating the post or appointing respondent No. 2 to the same were passed. Mr. U.L. Narayana Rao, however argued that since the appointment in question was without jurisdiction being outside the provisions of the Act in particular Section 32 thereof, the consent of the petitioner or recommendation made by the Committee of Dharmadarshies in its resolution dated 26-5-1981 could not validate either the creation or the appointment made subsequently. The argument is attractive for it is well settled that consent does not confer jurisdiction yet the question is whether this court ought to interfere with the impugned order at the instance of a party who has at some stage not only participated in the process of creation of the post but recommended action by the competent authority in that regard. Assuming for a moment, that the creation of the post of an additional archak was without jurisdiction as contended by Mr. U.L. Narayana Rao, there is no reason why this Court should intervene at the instance of a person who has himself been responsible for the creation of the present situation. A writ court would be justified in declining to exercise its jurisdiction at the instance of a party who has acquiesced in a given state of affairs or been responsible for its creation. The present is indeed one such case. Non interference in such cases does not mean that consent of the party has conferred jurisdiction on the authority where the same and does not otherwise inhere but simply recognise the principle that the jurisdiction of the Court under Art. 226 being discretionary it would be loathe to, interfere at the instance of a party whose conduct is not free from blemish or who has either acquiesced or been a privy to the mischief sought to be remedied D'Smith in his book Judicial Review of Administrative Action 3rd Edition has brought out the distinction in the two situations in the following words.
"A decision made without jurisdiction is vold, and it cannot be validated by the express or implied consent of a party to the proceedings. It does not always follow, however, that a party adversely affected by a void decision will be able to have it set aside. As we have seen, certiorari and prohibition are, in general, discretionary remedies, and the conduct of the applicant may have been such as to desentitle him to a remedy.
Whether the tribunal lacked jurisdiction is one question, whether the Court, having regard to the applicant's conduct, ought in its discretion to set aside the proceedings is another. The confused state of the present law is due largely to a failure to recognise that these are two separate questions.
XXX XXX XXX XXX The right to certiorari or prohibition may be lost by acquiescence of implied waiver. Acquiescence means participation in proceedings without taking objection to the jurisdiction of the tribunal once the facts giving ground for raising the objection are fully known. It may take the form of failing to object to the statutory qualification of a member of the tribunal, or (exceptionally) appealing to a higher tribunal against the decision of the tribunal of first instance without raising the question of jurisdiction."
7. To the same effect is the view expressed by a Division Bench of this Court in C.Y. Parthasarthy v. Syndicate of the Mysore Univesity . In the circumstances, therefore, the challenge to the creation of additional archak must fail on this short ground alone.
8. Coming then to the alternative submission made by Mr. U.L.Narayana Rao I find no substance even in the same. It is not disputed that the appointment of the second respondent was at no stage assailed by the petitioner before lower authorities on the basis that he did not possess the qualification prescribed by the Muzrai Manual. This is borne out from a reading of the orders passed by the Tribunal and the Endowments Commissioner which do not make any reference either to the Muzrai Manual.or any argument advanced on that basis. I am not therefore inclined to allow the petitioner to raise for the first time in these proceedings a ground of challenge based on the qualification of the second respondent to be appointed against the post. That apart, the qualifications in question are said to have been prescribed in the form of an Executive order which docs not prima facie have any legal action behind it. The circular relied upon and contained in the Muzrai Manual is said to have been issued some where in 1892 i.e., much before the promulgation of the Mysore State Religious and Charitable Endowments Institutions Act, 1927. It is therefore, doubtful whether any such qualification prescribed could at all be called in aid for challenging the appointment of the second respondent particularly when the Act does not recognise the same nor is any such qualification prescribed or adopted under the rules that the Government is empowered to frame under Section 41 of the Act.
9. Mr. U.L. Narayana Rao, lastly argued that the interim arrangement made by the Division Bench of this Court in W.A. No. 1650/1992 decided on 3-9-1992 and arising out of an interim order passed in these proceedings where under the petitioner was directed to perform the function of archark in the main temple and the second respondent to do so in the smaller temple at Gubbi should be continued in the interest of better management of the affairs of the temple and the convenience of the devotees. The order referred to by Mr. Rao does make an interim arrangement but the same would be valid only till the disposal of the present writ petition. As to who the functions of the Archak and the additional archak attached to the institution should be regulated is a matter which has to be determined by the Muzrai authorities, and any directions from this Court as to who out of the two-Archaks should attend to which temple, would be an un-necessary intrusion. I am not therefore inclined to make the interim arrangement a permanent feature as canvassed by Mr. Rao. All that can be done is that the arrangement made by the order passed by the Division Bench shall continue for a further period of three months during which period the Muzrai Office shall be entitled to review the situation and pass appropriate orders distributing the functions in the performance of the poooja in the two temples.
10. With the above directions this writ petition is disposed of, but in the circumstances, without any orders as to costs.
11. Order accordingly.