Karnataka High Court
B. Narayana Somayaji vs The Commissioner,(H.R & C.E) on 11 February, 2020
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO. 8554 OF 2012 (RES)
BETWEEN:
1. B. NARAYANA SOMAYAJI
AGED ABOUT 59 YEARS
S/O SUBRAYA SOMAJAYI
ARUN NIVAS, ARBI
B. MUDA VILLAGE
POST: BANTWAL
D.K.-574 211
2. DERAJE SURESH RAO
AGED ABOUT 57 YEARS
S/O DERAJE VENKAT RAO
R/AT ANUGRAHA APTS.
4TH FLOOR, BEHIND BUS STAND
B.C. ROAD, POST JODUMARGA-574 211
3. T. NARASIMHA MAYYA
(SINCE DEAD BY LR)
K. RAMAKRISHNA AITHAL
S/O RAMAKRISHNA AITHAL
AGED ABOUT 70 YEARS
RESIDING AT "SHEYAS"
KANDOOR, SAJIPA MANNUR
VILLAGE AND POST
BANTWAL TALUK-574 211
4. B. PRABHAKAR SOMAYAJI
AGED 56 YEARS
S/O VASUDEVA SOMAYAJI
R/AT MAYYARABAIL
BANTWAL MUDA VILLAGE
BANTWAL TALUK
POST BANTWAL, D.K-574 211
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5. T. SRIDHAR RAO
MAJOR
S/O. T. SUBBA RAO
R/AT "TUGURU HOUSE"
THUMBE VILLAGE & POST
BANTWAL TALUK
D.K. DT-574 211 ... APPELLANTS
(BY SRI. K. SHRIHARI, ADVOCATE)
AND:
1. THE COMMISSIONER, (H.R & C.E.)
HINDU RELIGIOUS AND
CHARITABLE ENDOWMENT
CHAMARAJPET
BENGALURU-560 002
2. THE DEPUTY COMMISSIONER
DAKSHINA KANNADA DISTRICT
HINDU RELIGIOUS AND
CHARITABLE ENDOWMENT
MANGALORE-575 001
3. THE ASSISTANT COMMISSIONER
HINDU RELIGIOUS AND
CHARITABLE ENDOWMENT
MANGALORE- 575 001
4. SRI MAHALINGESHWARA TEMPLE
BANTWAL
REPRESENTED BY ITS MANAGING TRUSTEE
DR. B. RAMESHANANDA SOMAYAJI
S/O LATE B. ANANTHA SOMAYAJI, MAJOR
GANESH KRIPA, B.C. ROAD
POST: JODUMARGA,
BANTWALA TALUK
D.K. DT. - 574 211
...RESPONDENTS
(BY SRI. S.SUBRAMANYA, AAG A/W
SMT. SAVITHA, HCGP FOR R1 TO R3;
SRI. A.G.GURURAJA, ADV. FOR R4)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION
62(2) OF MADRAS HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS
ACT AGAINST THE JUDGMENT AND DECREE DATED 27.03.2012 PASSED
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IN O.S.NO.8/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE & J.M.F.C.
AT BANTWAL, D.K. DISMISSING THE SUIT FOR DECLARATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed under Section 62(2) of the Madras Hindu Religious and Charitable Endowments Act, 1951 (for short 'Madras HR & CE Act') impugning the judgment dated 27.03.2012 in O.S.No.8/2008 on the file of the Senior Civil Judge and JMFC, Bantwal, D.K (for short 'the civil Court').
2. The appellants moved an application with the jurisdictional Deputy Commissioner, HR & CE - the second respondent under Section 57 of the Madras HR & CE Act for declaration that Sri. Mahalingeshwara Temple" at Bantwal (for short 'the Temple') is a sectarian denomination temple. This application was registered in the proceedings in LAW.CR.55/02-03. The second respondent by his order dated 12.05.2003 rejected the application holding that -4- there was no provision under the Madras HR & CE Act to declare the Temple as a sectarian denomination temple.
3. The appellants, being aggrieved by the second respondent's order dated 12.05.2003 preferred a revision in ADM.7/AP10/03-04 before the Commissioner, HR & CE. - the first respondent under Section 61 of the Madras HR & CE Act. The first respondent dismissed this revision petition by his order dated 06.03.2004.
4. The appellants filed the writ petition in W.P.No.43251/2004 (GM-R/C) impugning the first and second respondents' orders. In this writ petition, the State contended that the writ would not be maintainable as against the first and the second respondent's orders, and the appellants' appropriate remedy would be under Section 62(1) of the Madras HR & CE Act. This Court vide the order dated 17.09.2007 disposed of the writ petition in WP.No.43251/2014 (GM-R/C) reserving liberty to the -5- appellants to file a duly constituted appeal under Section 62(1) of the Madras HR & CE Act observing that the appellants' application for condonation of delay may be sympathetically considered.
5. Thereafter, the appellants filed the suit in O.S.No.8/2008 before the civil Court contending that they are residents of Bantwal Taluk and they hail from a community known as Kota Brahmins, which controls and manages the Temple. The persons from the appellants' community conduct all the religious rights, and the Temple is also developed by the generous gifts and settlements made by the persons from this community. Sri. Panambur Subraya, a Kota Brahmin, who was controlling the management of the Temple during the early twentieth century, executed registered Will dated 15.12.1903 making certain bequests to facilitate the services rendered to the deity, and following the bequests from him, other members of the community have continued generous contributions. -6- The members of this community have always officiated as trustees of the Temple right through the previous century.
6. The appellants also contend that a non-Kota Brahmin was sought to be appointed as a Trustee in the year 1938 under the provisions of the Madras HR & CE Act. However, after a detailed proceeding, the appointment of a non-Kota Brahmin was withdrawn and the members from the Kota Brahmins' community have continued to look after and manage the affairs of the temple. The appellants specifically contend that the Temple is not a public temple, but is a sectarian temple belonging to the denomination of Kota Brahmins. Therefore, the appellants are entitled for declaration that the Temple is a sectarian denominational temple of the Kota Brahmins and only persons from this sect/denomination would be entitled to manage the affairs of the Temple, and for other consequential relief/s. -7-
7. The appellants in support of their prayer examined the first appellant as PW.1 and marked Exs.P1 to P.5, which include a certified copy of Sri. Panambur Subraya's Will dated 15.12.1903 and the Report dated 23.01.2003. The State examined the Assistant Commissioner, HR & CE - the third respondent as DW.1 and marked Exs.D.1 to D.6.
8. The first appellant reiterated the plaint averments in his evidence and also specifically asserted that though the Madras HR & CE Act is repealed by the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 (for short 'the Karnataka Act'), the Karnataka Act is struck down as being ultra vires the Constitution. Further, the appellants are entitled to seek declaration because neither the Madras HR & CE Act nor the Karnataka Act is in force.
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9. The third respondent, who is examined as DW.1, has stated in her evidence that the Temple is a public temple and is not controlled or managed by any one particular denomination. The Temple receives a sum of Rs.12,000/- per annum as Tasdiq. Insofar as the applicable law, the Assistant Commissioner has asserted that the Madras HR & CE Act is repealed by the Karnataka Act, and the decision of the Division Bench of this Court striking down the Karnataka Act is stayed by the Hon'ble Supreme Court in SLP No.5398/2007 by its order dated 02.04.2007. The Karnataka Act continues to be in operation. Therefore, the suit in O.S.No.8/2008 under Section 62(1) of the Madras HR & CE Act would not be maintainable.
10. The civil Court has framed Issues which require the appellants inter alia to prove that the Temple is a private temple of the Kota Brahmins and the respondents to prove that the suit is barred under Section 68 of the -9- Karnataka Act. The civil Court after referring to the interim order granted by the Hon'ble Supreme Court in the aforesaid SLP No.5398/2007 has concluded that the effect of the interim order is that the provisions of the Karnataka Act continue to hold the field. Consequentially, the Madras HR & CE Act stand repealed. The civil Court has also opined that the suit in O.S.No.8/2008 would not be saved even under Section 6 of the Karnataka General Clauses Act, 1899 because the provisions of the Karnataka Act prevail and if the provisions of the Karnataka Act prevail then no civil suit can be maintained because of the prohibition under the provisions of Section 68 of the Karnataka Act.
11. Insofar as the appellants' assertions that the Temple is a sectarian denomination temple established and managed by Kota Brahmins, the civil Court has opined that this case is built on the basis of the Will dated 15.12.1903 executed by Sri. Panambur Subraya. However, the Will is
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not proved as required in law, and there is no material for the Court, in the light of the admitted fact that the Temple receives Tasdiq from the Government, to conclude that the Temple is a denomination temple.
Submission on maintainability of the suit in O.S.No.8/2008:
12. The learned counsel for the appellants submits that the appellants have invoked the provisions of Section 62(1) of the Madras HR & CE Act though the proceeding is registered as a civil suit. The civil Court has wrongly construed the provisions of Section 78 of the Karnataka Act and Section 6 of the Karnataka General Clauses Act, 1899. Though the Madras HR & CE Act is repealed by Section 78 of the Karnataka Act, proviso to Section 78 of the Karnataka Act states that the provisions of Section 6 of the Karnataka General Clauses Act, 1899 shall be applicable. If Section 6 of the Karnataka General Clauses Act, 1899 applies, as it should because of the proviso to the Section
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78 of the Karnataka Act, not only the appellants' rights to seek a declaration that the Temple is a sectarian denomination temple is saved but even the proceedings initiated by the appellants under Section 62(1) of the Madras HR & CE Act would be saved. Therefore the civil Court could not have dismissed the appellant's suit on the ground that the appellants' suit in O.S.No.8/2008, a proceeding under the Madras HR & CE Act would not be maintainable in view of the prohibition under the provisions of Section 68 of the Karnataka Act.
13. Sri S. Subramanya, learned Additional Advocate General submits that the canvass that a pending proceedings instituted under the provisions of the Madras HR & CE Act and the rights thereunder would be saved because of the provisions of Section 78 of the Karnataka Act read with Section 6 of the Karnataka General Clauses Act, 1899 is irrefutable. However, the appellants, who have filed the suit for declaration of title without impugning the
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first and second respondents' orders cannot assert that their suit is a proceeding as contemplated under Section 62(1) of the Madras HR & CE Act.
14. The learned Additional Advocate General submits that the appellants, who have averred in the plaint that neither the Madras HR & CE Act nor the Karnataka Act is in force, have in fact filed their suit invoking the jurisdiction of the civil Court under Section 9 of the Code of Civil Procedure, 1908. The appellants' suit, in view of the obvious bar under the provisions of section 68 of the Karnataka Act, is not maintainable. As such, the impugned order does not suffer from any infirmity.
15. The learned counsel for the appellants, in rejoinder, submits that the appellants' suit in OS No.8/2008 cannot be categorized as a suit filed invoking jurisdiction under section 9 of the Code of Civil Procedure, 1908 only because the appellants have not specifically
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impugned the first and second respondents' orders dated 12.05.2003 and 06.03.2004 respectively. The appellants in their suit have asked for the larger relief of declaration referring to the first and second respondents' orders. The settled law is that even if a limited prayer is made, but a larger relief is founded in the cause of action pleaded and the other side has had the opportunity of meeting the cause of action, it would be appropriate to mould the relief as contemplated under Order VII Rule 7 of the Code of Civil Procedure, 1908. In support of this proposition, the learned counsel relies upon the decisions of the Division Bench of this Court in Rangappa Vs Jayamma1 and in Patil Exhibitors (Pvt.) Ltd. Vs. The Corporation of the City of Bangalore2.
16. The learned counsel for the appellants further submits that it is indisputable that the appellants' larger 1 ILR 1987 KARNATAKA 2889 2 AIR 1986 KANT 194
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relief is founded in the cause of action that encompasses the appellants' grievance against the aforesaid orders. Therefore, a technical approach cannot be taken and the impugned order justified on that basis. The rival submission on the merits of the suit in O.S.No.8/2008:
17. The learned counsel for the appellants submits that the appellants have placed specific materials on record viz., the evidence of PW.1, Sri.Panambur Subraya's Will, and importantly, the Endorsement of the year 1936, which demonstrate that the Temple is a sectarian denomination temple of Kota Brahmins. However, the civil Court has failed to consider the aforesaid Endorsement. If the evidence and the Endorsement are considered, the only reasonable inference would be that the Temple is sectarian denomination temple and as such the appellants would be entitled for the relief/s claimed.
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18. The learned Additional Advocate General asserts that the Temple is admittedly paid Tashdiq by the State, and if such Tashdiq is paid by the State, the Temple cannot be a private temple. The appellants, who rely upon Sri.Panambur Subraya's Will dated 15.12.1903, have not lead necessary evidence to prove the same as required under the provisions of section 63 of the Indian Succession Act or section 68 of the Indian Evidence act 1872. The claim that the Temple is Kota Brahmin sectarian denomination temple remains wholly unsubstantiated. As such, the civil Court's judgement is unexceptionable and no interference is called for in this appeal even on merits.
19. It is not disputed either on behalf of the appellants or the respondents that if the proceedings in OS No. 8/2008 is under section 62(1) of the Madras HR & CE Act, it would be saved under the proviso to Section 78 of the Karnataka Act read with Section 6 of the Karnataka
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General Clauses Act. Otherwise, the suit would be prohibited under section 68 of the Karnataka Act. Therefore, the questions that would arise for consideration would be:
a) Whether the appellants' suit in O.S.No.8/2008 before the civil Court is a proceeding under Section 62 (1) of the Madras HR & CE Act or a suit under Section 9 of the Code of Civil Procedure, 1908, and
b) Whether the civil Court's finding that the appellants have not placed material on record to establish that the Temple is a sectarian denomination temple is justified in the light of the materials on record."
20. It is settled that the character of a proceeding would depend upon the nature of the rights, either asserted or violated, and the nature of the relief which may be claimed. It would be useful to refer to what the Hon'ble Supreme Court has said in SAL Narayan Row v. Ishwarlal
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Bhagwandas3, and the Hon'ble Supreme Court has declared that:
"The character of the proceeding, in our judgment, depends not upon the nature of the tribunal which is invested with authority to grant relief, but upon the nature of the right violated and the appropriate relief which may be claimed."
Therefore, on deciding the character of the proceeding in OS No.8/2008, this Court will have to consider the nature of the rights asserted by the appellants and nature of the relief claimed by the appellants, and whether such relief could be granted even if they may have not challenged the first and second respondents' orders.
21. The appellants' prayers in OS 8/2008 read as follows:
a. To declare that 'A' schedule temple is a private temple belonging to Kota Brahmin Community people of Bantwal Taluk and hence a sectarian denomination temple and as such only Kota Brahmins are entitled to manage its 3 AIR 1965 SC 1818
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affairs and administration and to be appointed as its trustees;
b. In case of power of appointment vests with defendant Nos.1 and 2 for any reason, not to appoint any other persons as Trustees, but approve and allow any Kota Brahmins selected/elected by Kota Brahmin community people in the meeting, to be recognized as trustees."
The appellants' suit in OS No.8/2008 is a culmination of the proceeding commenced by the appellants before the first respondent under Section 57 of the Madras HR & CE Act seeking declaration that the Temple is a sectarian denomination temple of the Kota Brahmins. Though the Karnataka Act is notified on 01.05.2003, the second respondent vide the order dated 12.05.2003 has dismissed this application holding that the jurisdiction under the provisions of the Madras HR & CE Act is only to decide whether an Institution is a religious Institution or not and no declaration could be made. The second respondent has
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not dismissed the appellants' application on the ground that the Madras HR & CE Act is repealed.
22. The first respondent has disposed of the appellants' revision Petition impugning the second respondent's order on the question whether the authorities under the Madras HR & CE Act had the jurisdiction to decide whether a temple belongs to a particular sect or a denomination. The writ petition filed by the appellants in W.P.No.43251/2004 impugning the aforesaid orders is disposed of in the following terms:
"I therefore reject this writ petition keeping all the contentions open and reserving the liberty to the petitioners to file a duly constituted appeal. Further, I also deem it necessary to observe that the District Court shall consider the petitioners' applications for the condonation of the delay, etc., sympathetically appreciating that the petitioners were prosecuting the writ remedy for the last three years. Further, the anticipated appeal shall be disposed off by the District Court as expeditiously as possible. No order as to costs."
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23. The State's specific defense in this writ proceeding is that the appellants' appropriate remedy as against the first and second respondents' orders is under Section 62(1) of the Madras HR & CE Act. It is after the orders of this Court in the aforesaid writ petition, the appellants have filed the present suit in O.S.No.8/2008. The State even in its Written Statement did not assert that the appellants have filed their suit invoking the jurisdiction under Section 9 of the Code of Civil Procedure, 1908 and not a suit as contemplated under Section 62 of the Madras HR & CE Act. Further, it is irrefutable that in view of the provisions of the Karnataka Civil Courts Act, the appellants could not have filed a suit under Section 9 of the Code of Civil Procedure, 1908 before the civil Court.
24. Though the appellants have not specifically challenged the first and second respondents' orders in the suit in O.S.No.8/2008, but from the circumstances leading
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to the suit, it is obvious that the appellants, being aggrieved by the aforesaid orders, have filed this suit in OS No.8/2008 in terms of the liberty reserved in the writ petition in W.P.No.43251/2004. In the aforesaid circumstances of the case, this Court is of the considered opinion that while the jurisdiction to decide on the appellant's prayer for declaration under the Madras HR & CE Act could be contested, it would only be reasonable to infer that the appellants have filed the suit in OS No.8/2008 for vindication of their assertion in continuation of the proceeding commenced by them under the provisions of the Madras HR & CE Act.
25. A Division Bench of this Court in Patil Exhibitors (Pvt.) Ltd. V. The Corporation of the City of Bangalore supra (a decision relied upon by the learned counsel for the appellants) has held that:
"It is true that a party, cannot, generally seek to sustain a prayer on a ground other than, and totally
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distinct from, the one specifically raised and urged. Relief, it is true, must be founded on the specific case pleaded. But, as is said, quite often the legitimate considerations of substance are allowed to prevail over the limitations of mere form. If a relief, either interlocutory or final, is consistent with and flows from the very case of the opposite side or what must be held necessarily consistent with it, and does not take the opposite side by surprise then Court can mould the relief accordingly."
This proposition is also reiterated in the other decision in Rangappa Vs Jayamma supra - another decision relied upon by the learned counsel for the appellants.
26. The appellant's prayer for declaration that the temple is a private sectarian/ denominational temple of Kota - Brahmins and other relief, in the circumstances discussed, would encompass the challenge to the first and the second respondent's orders. The appellants cannot be granted the prayer asked for without deciding on the tenability of the first and the second respondent's
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orders. If the appellants are able to establish that under the Scheme of the Madras HR & CE Act, it would be permissible to grant the relief of declaration and other relief in exercise of the power under Section 62 thereof, the learned counsel for the appellants is justified in asserting that the appellants have claimed a larger relief which would encompass the relief even as against the first and second respondents' orders.
27. Thus, if the character of the proceedings in OS No.8/2008 is examined against the touchstone of the nature of the rights asserted by the appellants and the relief that could be granted subject to appropriate adjudication, this Court is of the considered opinion that the proceeding in OS.No.8/2008 is filed as a proceeding under the provisions of Section 62(1) of the Madras HR & CE Act.
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28. In the light of the unanimous submission that a pending proceedings under Section 62(1) of the Madras H.R & C.E Act would be saved in view of the provisions of Section 78 of the Karnataka Act read with Section 6 of the Karnataka General Clauses Act, the suit in OS No.8/2008, a proceeding under Section 62(1) of the Madras H.R & C.E Act, could not have been dismissed on the ground that Madras HR & CE Act is repealed.
29. The appellants rely upon not only the Will dated 15.12.1903, but also certain documents especially Exs.P4 and P5. These documents indicate past circumstances which could be material in deciding on the question whether the temple is a private temple or not. But these documents have not been considered by the civil Court. The civil Court should have considered the undisputed fact that the certain Tasdiq is being paid to the Temple even as of the date in the light of these documents and the oral evidence. The civil Court should
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also have considered the question whether the declaration that the Temple is a private temple could be granted under the provisions of the Madras HR & CE Act. The civil Court has not only erred in holding that the suit is not maintainable but has also failed to consider the relevant documents and decide on the material questions as discussed above. Therefore, it would be appropriate to remand the matter for fresh consideration with liberty to both the appellants-plaintiffs and the State to lead further evidence as would be necessary to decide the questions. For the foregoing, the following:
ORDER
a) The appeal is allowed in part.
b) The impugned order dated 27.03.2012 in O.S.No.8/2008 on the file of the Senior Civil Judge and JMFC, Bantwal, D.K., is set aside, and the suit is restored to the Board of the civil Court for reconsideration on merits.
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c) The parties shall appear before the civil Court without further notice of first hearing on 16.03.2020.
SD/-
JUDGE RB