Karnataka High Court
Sri Chandayya Arasu Kinniyakka Ballal vs P Vishwanatha Hegde on 9 July, 2012
Author: K.L.Manjunath
Bench: K.L.Manjunath
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 9TH DAY OF JULY 2012
PRESENT
THE HON'BLE MR. JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR. JUSTICE V.SURI APPA RAO
WA No.681/2007 (GM - R/C)
BETWEEN :
SRI CHANDAYYA ARASU
KINNIYAKKA BALLAL
70 YRS, S/O SHANKAR
ARASU KINNIYAKKA BALLAL
PADUBIDRI BEEDU, UDUPI. ...APPELLANT
(By Sri SANATH KUMAR SHETTY, ADV.)
AND :
1 P VISHWANATHA HEGDE
S/O CHANDAYYA HEGDE
AGED ABOUT 62 YEARS
PETEMANE, PADUBIDRI
NADSAL VILLAGE,UDUPI
TALUK AND DISTRICT.
2 THE DEPUTY COMMSISIONER
DEPARTMENT OF HINDU
RELIGIOUS AND CHARITABLE
ENDOWMENTS, UDUPI
DISTRICT, UDUPI.
2
3 THE ENDOWMENT COMMISSIONER
MAHADESWARA BHAVANA,
CHAMARAJPET,
BANGALORE 560 018.
4 SRI PRABHAKARA RAI, MAJOR
S/O KAMALA SHEDTHI
PADOORGUTTU, SUBRAMANYA
NILAYA, KONCHADI, OPP DEREBAIL
CHURCH, DEREBAIL, MANGALORE DK.
5 RATNAKAR RAJ
MAJOR, S/O SRI SAK BALLAL
BEEDU MANE, PADUBIDRI
NADSAL VILLAGE, UDUPI
TALUK AND DISTRICT. ...RESPONDENTS
(By Smt.VAISHALI HEGDE, ADV. FOR R1,
Sri M KESHAVA REDDY, AGA, FOR R2 & 3)
This writ appeal is filed under Section 4 of the Karnataka High
Court Act, 1961, praying to set aside the order dated 12.03.2007 in W.P.
No.44314/2003 and allow the writ appeal.
This writ appeal coming on for hearing this day, K.L.
MANJUNATH, J delivered the following:
JUDGMENT
The legality and correctness of the order passed by the learned Single Judge in W.P. No. 44314/2003 dated 12th March 2007 is called in question in this appeal.
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2. The facts leading to this appeal are as hereunder:
The appellant was respondent No.3 in the writ petition. The respondent No.1 was the writ petitioner. The dispute is in regard to appointment of a Trustee to a well known temple situated at Padubidri known as Mahalingeshwara Mahaganapathi Temple in Udupi District. The undisputed facts are that three hereditary trustees have to manage the affairs of the temple, one from the Jain community and another from the Brahmin family and one shall be from Nadava (Bunts) community. The appellant herein is a Trustee represents the Jain community. The writ petitioner - Vishwanatha Hegde claiming to be the dissident of Petemane family made an application to appoint him as Hereditary Trustee to represent Nadava community.
3. In regard to his claim, he had been asked to approach various authorities. Ultimately, the Deputy Commissioner, Udupi by his order dated 13.05.2002 (Annexure 'M') declared Vishwanatha Hegde S/o 4 Chandayya Hegde, Petemane, Padubidri, Nadsal Grama as successor of Hereditary Trusteeship of Nadava Community in respect of the temple in question. The order of the Deputy Commissioner was questioned by the appellant herein by filing an appeal before the Commissioner for Endowments in Bangalore in Appeal No. 9/2002. The Commissioner for Endowments by his order dated 20th September 2003 allowed the appeal and set aside the order of the Deputy Commissioner on the ground that the Deputy Commissioner was required to pass an order under Section 57(b) and not under Section 47 of the Madras Hindu Religious and Charitable Endowments Act. This order was questioned by the respondent by filing a writ petition in W.P. No. 44314/2003. The learned Single Judge after hearing the parties came to the conclusion that Provision of Section 47 of the Act was applicable and the order passed by the Deputy Commissioner under Section 47 was just and proper and set aside the order passed by the Commissioner for Endowments. This divergent finding 5 is called in question in this appeal.
4. According to Sri. Sanath Kumar Shetty, learned Counsel for the appellant that the order of the learned Single Judge suffers from error as he did not distinguished the provisions of Section 47 and 57 of the Act. According to him, the order passed by the Deputy Commissioner is to appoint a Hereditary Trustee represents Nadava Community and therefore, it does not fall under Section 47 but it falls under Section 57 of the Act. If a declaration has to be passed under Section 57, the Deputy Commissioner is required to hold an enquiry in accordance with law and order has to be passed and thereafter an appeal shall lie to the Commissioner. Thereafter, the order of the Commissioner has to be questioned only by a suit not by a writ petition. Therefore, he contends that writ petition filed by the writ petitioner was not maintainable.
5. The learned Counsel appearing for the contesting respondents contends that the appeal filed by the appellant herein before the Endowment 6 Commissioner was not maintainable as he represents only the Jain Community and the appointment of the Hereditaryship Trustee is in regard to Nadava Community only. If any other Nadava Community person aggrieved by the the appointment of respondent No.1 can only file an appeal before the Commissioner and not by the respondents. She further contends that there is no dispute in regard to the rights of the first respondent to represents Nadava Community as trustee of the temple as he belongs to the family of Petemane. Therefore, she requests the Court to dismiss the appeal.
6. Having heard the learned Counsel for the parties, we are of the opinion that the learned Single Judge has not committed an error in order to allow the appeal for the following reasons.
7. Even according to the appellant's Counsel out of three trustees, one each shall represents the Brahmin Community, Jain Community and Nadava Community. It is also not in dispute that there are two hereditary trustees representing Brahmin and Jain Community and 7 there is no trustee appointed to represent Nadava Community. As per the amended scheme of the temple, there is a provision to appoint five Board of Directors, amongst them three shall be of permanent hereditary trustee's representing Brahmin, Jain and Nadava Community. Therefore, if there is no representation of Nadava Community, if the respondent No.1 as a member of Nadava Community claiming to be from Petemane Brahmin and if his case is considered by the Deputy Commissioner, the appellant who does not belong to Nadava Community has no right to question the appointment order of the 1 st respondent and when the appellant cannot be considered as an aggrieved person. It is also not his case that the 1 st respondent is not desirable person to be appointed as a Trustee of the temple. He is also not disputing the community of the respondent No.1 as he belongs to Nadava Community. When there are no other rival applicants from Nadava Community, we are of the opinion that unnecessarily the 1st respondent is made to approach one authority or the 8 other on flimsy grounds.
8. Therefore, we are of the considered opinion that in the best interest of the Management of the Temple and in the interest of devotees, the writ appeal has to be dismissed. Accordingly, this writ appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE Rbv