Karnataka High Court
Smt. Leelavathi Shetty vs The State Of Karnataka on 17 November, 2017
Author: A.S.Bopanna
Bench: A S Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF NOVEMBER , 2017
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
WRIT PETITION No.41016/2012 (GM-R/C)
BETWEEN:
SMT. LEELAVATHI SHETTY
W/O SRI ITHAPPA SHETTY
AGED ABOUT 60 YEARS
PERUVAJE GUTTU HOUSE
PERUVAJE VILLAGE AND POST
SULLIA TALUK
DAKSHINA KANNADA DISTRICT-574239
... PETITIONER
(BY SRI G L MOHAN MAIYA, ADV. FOR
SRI A KESHAVA BHAT, ADV.
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS SECRETARY
TO GOVERNMENT
REVENUE DEPARTMENT (MUZARAI)
M S BUILDING
DR. B R AMBEDKAR VEEDHI
BANGALORE-560001
2. THE COMMISSIONER FOR
HINDU RELIGIOUS AND CHARITABLE
ENDOWMENTS IN KARNATAKA
ALUR VENKATARAO ROAD
BANGALORE-560023
2
3. THE DEPUTY COMMISSIONER
D K DISTRICT
MANGALORE-575001
4. THE ASST.COMMISSIONER
HINDU RELIGION AND
CHARITABLE ENDORSEMENTS
D C OFFICE COMPLEX
MANGALORE (D K ) 575001
5. SRI JALADURGA DEVI TEMPLE
PERUVAJE VILLAGE & POST
SULLIA TALUK
D K DISTRICT-574239
REP. BY ITS MANAGER
6. ZILLA DHARMIKA PARISHAT
OFFICE OF DEPUTY COMMISSIONER
REP. BY ITS SECRETARY.
... RESPONDENTS
(BY SRI M A SUBRAMANYA, HCGP. FOR R1-R4
SRI B.S. SACHIN, ADV. FOR R6
R5 IS SERVED & UNREPRESENTED)
THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, WITH A PRAYER TO CALL FOR
ENTIRE RECORDS PERTAINING TO THE ORDER FROM THE
FILE OF THE 5TH RESPONDENT AND ON PERUSAL OF THE
SAME; STRIKE DOWN SECTION 20A [2][I], 3, SECTION 21,
SECTION 21A, SECTION 21A [2]{A} AND SECTION 25 OF THE
HINDU RELIGIOUS INSTITUTIONS AND CHARITABLE
ENDOWMENTS ACT, 1997 VIDE ANNEXURE-A AND ETC.
THIS PETITION COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
3
ORDER
The petitioner is before this Court seeking that the provisions as referred to through Annexure-A in the Hindu Religious Institutions and Charitable Endowments Act, 1997 ('the Act, 1997' for short) be quashed. Further the petitioner is also seeking that the notification dated 30.06.2012 at Annexure-C be quashed.
2. The petitioner claims to be the hereditary trustee in respect of the temple in question which admittedly is a Group 'C' temple. At the outset, it is to be taken note that the challenge to the provisions of the Act 1997 need not be considered in the instant petition inasmuch as the same has already been considered by this Court and the matter is pending before the Hon'ble Supreme Court. Therefore the Prayer No.1 does not survive for consideration at this point in time as the result before the Hon'ble Supreme Court would enure to the benefit of the petitioner as well. 4
3. Insofar as the prayer assailing the notification dated 30.06.2012, as rightly pointed out by the learned Government Advocate the same does not survive for consideration inasmuch as the period for which the Managing committee had been constituted has expired and thereafter new committee has been constituted. The said position in any event is not in dispute.
4. In the above background, all that arises for consideration herein is with regard to the order passed by the Deputy Commissioner dated 26.01.2013 impugned at Annexure-E to the petition. A perusal of the same would indicate that the order in fact is in the nature of an endorsement issued to the petitioner in respect of the claim as put forth that she be declared as the hereditary trustee in respect of the temple in question. The Deputy Commissioner has arrived at the conclusion that though a claim has been put forth, there are no documents available on record to indicate that the petitioner's family has been managing the affairs of the temple for the last three generations. 5
5. Learned counsel for the petitioner while assailing the order would point out that such conclusion as reached by the Deputy Commissioner is not justified inasmuch as the Assistant Commissioner while making the recommendation dated 22.08.2012 has referred to the documents on which reliance has been placed and on taking note of the same, the proposal has been put forth that the petitioner could be accepted as the hereditary trustee.
6. Though such contention is putforth, learned Government Advocate would point out that the Assistant Commissioner in view of certain clarifications having been sought by the Deputy Commissioner, has made a detailed consideration and through the communication dated 26.12.2012 has referred to the claim that had been put forth by the petitioner and based on the statement that had been recorded by him has arrived at the conclusion that the documents as relied on by the petitioner cannot be reckoned 6 for the purpose and therefore has recommended that the claim of the petitioner is not liable to be accepted.
7. Therefore in that circumstance, on taking note of the conflicting opinions tendered by the Assistant Commissioner to the Deputy Commissioner and in that background when the Deputy Commissioner has arrived at his conclusion through the endorsement dated 26.01.2013 that the documents as relied on by the petitioner are insufficient, a further consideration either in the instant writ petition where disputed factual position cannot be determined or a reconsideration by the authority would not be justified.
8. However, if the petitioner still contends that she has the right to be declared as the hereditary trustee, certainly the petitioner would be entitled to obtain such declaration in a properly constituted civil suit to which all the contesting parties are to be impleaded and a decision is to be taken in that regard. It is made clear that if such civil suit is instituted by the petitioner, the recommendation as made by the 7 Assistant Commissioner or the endorsement issued by the Deputy Commissioner shall not be relied on by the Civil Court as a document for its conclusion, but shall render the judgment based on the evidence that would be tendered before it in accordance with law. All contentions in that regard are left open.
In terms of the above, the petition stands disposed of.
Sd/-
JUDGE akc/bms