Karnataka High Court
Sri M Govardhandas Hegde vs The State Of Karnataka on 3 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 03RD DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO. 5968 OF 2019 (RES)
BETWEEN:
1. SRI M. GOVARDHANDAS HEGDE
SON OF LATE B. VITTAL HEGDE,
AGED ABOUT 79 YEARS
RESIDING AT 'MOMBETTU HOUSE',
HIRIYADKA POST,
UDUPI TALUK AND DISTRICT - 576 101.
2. SRI. HARSHAVARDHAN HEGDE
SON OF NARAYANA HEGDE,
AGED ABOUT YEARS
RESIDING AT CHARKADI VILLAGE,
UDUPI TALUK AND DISTRICT - 576 101.
... APPELLANTS
(BY SRI. JAYAKUMAR S. PATIL, SENIOR ADVOCATE FOR
SRI. H.V. PRAVEEN GOCODA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
MUZARAI DEPARTMENT,
DR. AMBEDKAR VEEDHI,
BENGALURU - 560 001
REPRESENTED BY ITS PRINCIPAL SECRETARY.
2. RAJYADHARMIKA PARISHATH
HINDU RELIGIOUS INSTITUTIONS
AND CHARITABLE ENDOWMENTS,
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2ND FLOOR, SRI MINTO
ANJANEYA BHAVAN,
ALUR VENKATA RAO ROAD,
CHAMARAJPETE,
BENGALURU - 560 019
REPRESENTED BY ITS SECRETARY.
3. THE COMMISSIONER
HINDU RELIGIOUS INSTITUTIONS
AND CHARITABLE ENDOWMENTS
IN KARNATAKA,
ALUR VENKATA RAO ROAD,
CHAMARAJPETE,
BENGALURU -560 019.
4. SRI. VEERABHADRA TEMPLE
HIRIYADKA, BOMMARABETTU VILLAGE,
UDUPI TALUK AND DISTRICT - 576 161
REP BY ITS EXECUTIVE OFFICER.
5. DR. SUNIL HEGDE
SON OF LATE BALAKRISHNA HEGDE,
AGED ABOUT 64 YEARS
RESIDING AT NO.182/3,
SUNISH, RMV 2ND STAGE,
SANJAYNAGAR,
BENGALURU - 560 094.
ALSO AT MOMBETTU POST
HIRIYADKA, UDUPI TALUK
AND DISTRICT - 576 101.
... RESPONDENTS
(BY SRI. ASHOK HARANAHALLI, SENIOR ADVOCATE FOR
SRI. R. SUBRAMANYA., ADVOCATE FOR C/R5;
SMT. SADHANA DESAI., ADVOCATE FOR R2;
SMT. SAVITHA., HCGP FOR R1 & R3;
NTOICE TO R4 SERVED)
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THIS MISCELLENEOUS FIRST APPEAL IS FILED UNDER
SECTION 63-A(1) OF THE KARNATAKA HINDU RELIGIOUS
CHARITABLE ENDOWMENT ACT, 1997, AGAINST THE CASE NO.
ADM 8 CR 128/2017-18 DATED 12.07.2019, FROM THE SECOND
RESPONDENT DECLARE AND STRIKE DOWN THE IMPUGNED
PROFESSED PROCEEDINGS OF THE SAID RESPONDENT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
29.01.2020, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
ON THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed under Section 63-A(1) of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997, (for short, 'KHRCE Act') impugning the Rajya Dharmika Parishat's decision in its proceedings dated 4.7.2019 and the third respondent's consequential order in No.ADM 8 CR 128/2017-18 dated 12.7.2019. The Rajya Dharmika Parishat - the second respondent by the impugned decision dated 4.7.2019 has resolved to appoint the fifth respondent as 'Fit Person' in exercise of its powers under Section 25-A(3) of the KHRCE Act and later the consequential order dated 12.7.2019 is issued. -4-
2. The appellants were respectively appointed as Hereditary Trustees and Successors to the office of the Hereditary Trustee of Sri Mahatobara Veerabhadra Temple, Hiriyadka, Bommerabettu village, Udupi Taluk (the fourth respondent and referred to as the 'Temple') by the Rajya Dharmika Parishat vide its decision on 23.3.2018 in its 14th Meeting and the third respondent's consequential orders in that regard on 26.3.2018. The fifth respondent impugned this decision dated 23.3.2018 and order dated 26.3.2018 before this Court in MFA No.7470/2018. This Court by the judgment dated 22.02.2019 set aside the Rajya Dharmika Parishat's decision on 23.3.2018 and the subsequent consequential order dated 26.3.2018 remanding the matter back to the Rajya Dharmika Parishat for fresh reconsideration of the appellants' application for their appointment as Hereditary Trustees and Successors to the office of the Hereditary Trustee of the Temple with opportunity to the fifth respondent to file objections. -5-
3. Thereafter the Rajya Dharmika Parishat issued Notice dated 1.7.2019 to the appellants and fifth respondent informing them that the appellants and the fifth respondent could file their representations/objections in writing during the proceedings scheduled for 4.7.2019. The first appellant on 4.7.2019, filed application (as per annexure-D) with the prayer 'for his continuation as the trustee in the interregnum of Sri Mahatobara Veerabhadra Devasthanam, Hiriyadka, Bommerubettu Village, Udupi Taluk until the disposal of the matter before the tribunal"'. However, in the affidavit accompanying the application, the first appellant prayed for his appointment along with the second appellant as 'Fit Persons' adverting to certain writ proceedings. The first appellant asserted that the appointment of an Executive Officer was impeding with the Temple's traditions and that there should not be a vacuum in the management of the Temple's affairs for long. -6-
4. The fifth respondent filed his 'submissions/objections' on 4.7.2019. In his submissions/objections, the fifth respondent asserted that his father was appointed as the 'Fit Person' way back in the year 1971 and he continued as 'Fit Person' to perform the Temple's rituals and attend to its affairs until his demise. After his father's demise, he, the fifth respondent, was appointed as 'Fit Person' vide the order dated 10.7.2009 and he continued to discharge such function. He should be appointed as 'Fit Person' during the pendency of the suit under Section 25-A (3) of the KHRCE Act.
5. The Rajya Dharmika Parishat on 4.7.2019 has resolved to appoint the fifth respondent as the 'Fit Person' under Section 25-A(3) of the KHREC Act which is followed by the third respondent's impugned order. There is an obvious difference between the Rajya Dharmika's impugned decision dated 4.7.2019 and the consequential order dated 12.7.2019 issued by the third respondent. It would be -7- necessary to bring out the difference between the Rajya Dharmika Parishat's decision and the third respondent's consequential order before the rival submissions are considered.
6. The Rajya Dharmika Parishat's impugned decision dated 4.7.2019 (Annexure-A) in its relevant part reads as follows:
"F ¥Àæ¸ÁÛªÀ£É gÁdå zsÁ«ÄðPÀ ¥ÀjµÀwÛ£À ¸À¨sÉAiÀÄ°è ªÀÄAr¸À¯ÁVzÀÄÝ, ¸ÀzÀj «ZÁgÀPÉÌ ¸ÀA§A¢ü¹zÀAvÉ ªÀiÁ£Àå GZÀÒ£ÁåAiÀÄ®AiÀÄ JA.J¥sï.J. ¥ÀæPÀgÀt ¸ÀASÉå: 7470/2018 gÀ D¸ÀPÀÛ C¦Ã®ÄzÁgÀgÀÄ ºÁUÀÆ ¥Àæw¥Á¢UÀ¼ÀÄ ¸À¨sÉUÉ ºÁdgÁV vÀªÀÄä °TvÀ CºÀªÁ®ÄUÀ¼ÀÄ ªÀÄvÀÄÛ ¥ÀÆgÀPÀ zÁR¯ÉUÀ¼À£ÀÄß gÁdå zsÁ«ÄðPÀ ¥ÀjµÀwÛ£À ¸À¨sÉAiÀÄ°è ¸À°è¹zÀÄÝ, F §UÉÎ ¸À¨sÉAiÀÄ°è «ªÀgÀªÁV ZÀað¹, ¸ÀzÀj zÉêÁ®AiÀÄzÀ C£ÀĪÀA²PÀ ªÉÆPÉÛøÀjPÉAiÀÄ GvÁÛgÁ¢üPÁgÀªÀ£ÀÄß ¥sÉÆö¸ÀĪÀ §UÉÎ gÁdå zsÁ«ÄðPÀ ¥ÀjµÀvÀÄÛ ¤tð¬Ä¸ÀĪÀªÀgÉUÉ ¸ÀzÀj zÉêÁ®AiÀÄzÀ zÉÊ£ÀA¢£À ¸ÀÄUÀªÀÄ DqÀ½vÀ »vÀzÀȶ֬ÄAzÀ PÀ£ÁðlPÀ »AzÀÆ zsÁ«ÄðPÀ ¸ÀA¸ÉÜUÀ¼ÀÄ ªÀÄvÀÄÛ zsÀªÀiÁðzÁAiÀÄ zÀwÛUÀ¼À wzÀÄÝ¥Àr C¢ü¤AiÀĪÀÄ 2011 ¸ÉPÀë£ï 25(J) (3) gÀ£ÀéAiÀÄ qÁ.¸ÀÄ¤Ã¯ï ºÉUÉØgÀªÀgÀ£ÀÄß ¦ümï ¥À¸Àð£ï DV £ÉëĸÀ®Ä wêÀiÁð¤¸À¯Á¬ÄvÀÄ."
Thus it is obvious that the Rajya Dharmika Parishat's decision is to appoint the fifth respondent as the 'Fit Person' for the period until it decides on the declaration on the appointment of Hereditary Trustee. But, the consequential order dated 12.7.2019 (Annexure-B) issued -8- by the third respondent reads that the fifth respondent's appointment as the 'Fit Person' is for the period until the suit in O.S.No.297/2018 pending on the file of the Principal Civil Judge and JMFC, Udupi is decided and the name of the Hereditary Trustee is recorded by the Rajya Dharmika Parishat under the provisions of Section 20A(2)(vii) of KHRCE Act. This order reads as follows:
"gÁdå zsÁð«ÄPÀ ¥ÀjµÀwÛ£À ¢£ÁAPÀ 04.07.2019gÀ ¸À¨sÉAiÀÄ ¤tðAiÀÄ ¸ÀASÉå 01gÀ£ÀéAiÀÄ GqÀĦ f¯Éè GqÀĦ vÁ®ÆèPÀÄ, »jAiÀÄqÀÌ ²æà «ÃgÀ¨sÀzÀæ zÉêÁ®AiÀÄzÀ C£ÀĪÀA²PÀ ªÉÆPÉÛøÀjPÉAiÀÄ GvÀÛgÁ¢üPÁgÀvÀézÀ §UÉÎ GqÀĦAiÀÄ ¦æ¤ì¥À¯ï ¹«¯ï dqÀÓ ªÀÄvÀÄÛ eÉ.JA.J¥sï.¹ £ÁåAiÀiÁ®AiÀÄzÀ°è zÁR¯ÁVgÀĪÀ ªÀÄÆ®zÁªÉ ¸ÀASÉå : 297/2018 EvÀåxÀðUÉÆAqÀÄ, ¸ÀzÀj zÉêÁ®AiÀÄzÀ C£ÀĪÀA²PÀ ªÉÆPÉÛøÀjPÉAiÀÄ GvÀÛgÁ¢üPÁjAiÀÄ ¤zsÁðgÀªÁzÀ £ÀAvÀgÀ PÁAiÉÄÝAiÀÄ ¸ÉPÀë£ï 20J (2)(7)gÀ C£ÀéAiÀÄ gÁdå zsÁð«ÄPÀ ¥ÀjµÀvÀÄÛ GvÀÛgÁ¢üPÁjAiÀÄ ºÉ¸ÀgÀ£ÀÄß zÁSÁ¯Áw ªÀiÁqÀĪÀªÀgÉUÉ ¸ÀzÀj zÉêÁ®AiÀÄzÀ ¸ÀÄUÀĪÀÄ DqÀ½vÀ zÀȶ֬ÄAzÀ qÁ JA ¸ÀÄ¤Ã¯ï ºÉUÉØ ©£ï ¯Éà JA. ¨Á®PÀȵÀÚ ºÉUÉØ gÀªÀgÀ£ÀÄß PÀ£ÁðlPÀ »AzÀÆ zsÁ«ÄðPÀ ¸ÀA¸ÉÞUÀ¼ÀÄ ªÀÄvÀÄÛ zsÀªÀiÁðzÁAiÀÄ zÀwÛUÀ¼À wzÀÄÝ¥Àr C¢ü¤AiÀĪÀÄ 2011gÀ ¸ÉPÀë£ï 25J (3)gÀ£ÀéAiÀÄ vÁvÁÌ°PÀªÁV ¦ümï ¥À¸Àð£ï DV £ÉëĹ DzÉò¹zÉ."-9-
7. The Rajya Dharmika Parishat has filed its Objection Statement/Additional Objection Statement asserting inter alia that the fifth respondent is appointed as the 'Fit Person' in exercise of powers under Section 25A(3) of the KHREC Act. The appointment of the fifth respondent is to be in force until the disposal of the suit in OS No. 297/2018. The provisions of Section 25A(3) of the KHRCE Act itself provides that the Rajya Dharmika Parishat may appoint a 'Fit Person' until the disability ceases or another successor succeeds to such office. The appointment of the fifth respondent as the Fit Person until the disposal of the suit in OS No. 297/2018 is therefore justified.
8. The significance of the difference in the Rajya Dharmika Parishat's decision dated 4.7.2019 and the third respondent's consequential order dated 12.7.2019 will have to be considered in the light of the rival submissions by the learned Senior Counsel for the appellants and the fifth
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respondent and the objection statement filed on behalf of the Rajya Dharmika Parishat in this appeal.
9. Sri Jaykumar S. Patil, learned Senior Counsel for the appellants, canvassed two-fold submissions in support of the appeal arguing against the Rajya Dharmika Parishat's impugned decision dated 4.7.2019 and the third respondent's consequential order dated 12.7.2019. Firstly, the Rajya Dharmika Parishat's decision is in violation of the principles of natural justice. The Rajya Dharmika Parishat issued notice of hearing on 4.7.2019 to the appellants and the fifth respondent pursuant to the orders of this Court in MFA No.7470/2018. Accordingly, the appellants and fifth respondent appeared before the Rajya Dharmika Parishat on 4.7.2019, and on this day, the appellants submitted their application as per Annexure-D, (which is supported by an affidavit), while the respondent No.5 filed submissions/objections inter alia with a request for his
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appointment as 'Fit Person' until the disposal of the suit in O.S.No.297/2018.
10. The Rajya Dharmika Parishat on the very same day took up the appellants' application and the fifth respondent's submission for consideration without an opportunity to the appellants to file their objections. The Rajya Dharmika Parishat in appointing a 'Fit Person' under Section 25-A(3) of the KHRCE Act decides on the respective claims thereto. As such, the appellants should have been given a reasonable opportunity to file objections. In any event in the present case, the appellants and the fifth respondent were before the Rajya Dharmika Parishat asserting respective claims, and the Rajya Dharmika Parishat should have given an opportunity to the appellants to file their objections. In the absence of such opportunity, the impugned decision and order would be in violation of the principles of natural justice.
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11. Secondly, the Rajya Dharmika Parishat/the second respondent could not have appointed the fifth respondent as a 'Fit Person' for the period until the final decision in OS No.297/2018, and such decision/order would be beyond the jurisdiction conferred under KHRCE Act. The learned Senior Counsel relies upon the decision of the Hon'ble Supreme Court in Ashok Kumar Lingala vs. State of Karnataka and others1 to contend that the power to grant interim order is implicit in the power to make a final order but such interim orders must be a step-in-aid for such final order. Therefore, the power to grant interim order implies that the authority seized of the proceedings could grant such order only until it passes the final order. As such, neither the Rajya Dharmika Parishat could have resolved nor the third respondent could have issued order appointing the fifth respondent as 'Fit Person' for the period until the disposal of the suit in OS No.297/2018. The 1 (2012) 1 SCC 321
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appointment of a 'Fit Person' could only be until the culmination of the proceedings before the Rajya Dharmika Parishat.
12. Sri Ashok Harnahalli, the learned Senior Counsel for the fifth respondent argued in favour of the impugned decision/order asserting that indisputably the fifth respondent was appointed as 'Fit Person' way back in the year 2009, and the challenge thereto culminated in the writ proceedings before this Court in WP No.19651/2015. This Court while disposing of the writ petition permitted the fifth respondent and Sri A Sachivendra Heggade, son of Vittala Heggade2 to jointly perform the religious affairs of the Temple without any rancour between them and that such joint responsibility shall prevail until the final decision in the suit in OS No.101/19963, which was 2 A rival claimant at the relevant point of time. 3 The suit 101/1996 is no longer pending consideration and is disposed of in the circumstances discussed in detail by this Court in MFA No. 7470/2018. It is after the disposal of the suit in OS No.
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pending as of that date. This order was taken up in writ appeal in WA No.4785/2015, and the writ appeal is dismissed confirming this Court's order in WP No.19651/2015.
13. Further, the learned Senior Counsel relies upon a decision of another Division Bench of this Court in CCC No.1103/2019 (Civil) which is disposed of on 16.10.2019 and submits that even after the orders of this Court in MFA No.7470/2018, it has been placed on record before the Division Bench that the fifth respondent (Sunil Hegde) and Sri Sachivendra Hegde are jointly performing the religious ceremonies in the Temple pursuant to the orders of this Court in WP No.19651/2015. Therefore, the Rajya Dharmika Parishat's decision and the third respondent's consequential order are only in recognition of the fifth respondent's rights because of the aforesaid proceedings 101/1996 that the suit in OS No. 297/2018 is filed by the Fifth Respondent.
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and order is in his favour. As such, the appellants cannot complain of violation of the principles of natural justice or that there is any error in the impugned decision/order.
14. It is obvious from the submissions that neither the appellants nor the fifth respondent dispute that the Rajya Dharmika Parishat is vested with the jurisdiction to appoint 'Fit Person' to oversee the affairs of the Temple under section 25A(3) of the KHRCE Act as an interregnum arrangement4. They also do not in these proceedings contest that the Rajya Dharmika Parishat will have to decide whether there is a dispute as contemplated under Section 20-A(1)(d) of the KHRCE Act and whether the Rajya Dharmika Parishat could record the names of either the appellants or the fifth respondent under Section 20-A(2)(vii) of the KHRCE Act. Similarly, they do no contest that one of the issues that will have to be considered in the suit in OS 4 However, the contested question is, whether the Rajya Dharmika Parishat could appoint Fit persons for the period until the disposal of the suit in OS No. 297/2018
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No.297/2018, which is pending is, who could succeed to the office of the 'Hereditary Trustee' as per the personal law that applies.
15. It follows therefore that the larger questions inter alia as to who could succeed to the office of the Hereditary Trustee of the Temple and whether there is any dispute in this regard are yet to be decided in the appropriate proceedings, and the present controversy is only as regards the appointment of a 'Fit Person' for the purposes of managing and overseeing the Temple's affairs. As such, the substantial questions that arise for consideration in this appeal are:
"(a) Whether the Rajya Dharmika Parishat could in a given set of facts and circumstances of the case, appoint a 'Fit Person' under Section 25-A(3) of the KHRCE Act until the decision in a suit on the question who could succeed to the office of the Hereditary Trustee, and
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(b) Whether the impugned Rajya Dharmika Parishat's decision is arbitrary inasmuch as no opportunity was granted either to the appellants and the fifth respondent to file their respective submissions as against the claim of the other for appointment as fit person/s.
16. A Division Bench of this Court in Subash Chandra Naik vs. State of Karnataka and others5 has declared that civil courts would have the jurisdiction to deal with an issue connected with those matters that do not come within the scope of the KHREC Act. The question as to who should succeed to the office of Hereditary Trustee would not come within the powers of general superintendence and control vested with the Commissioner under the KHREC Act and therefore such question will have to be decided by a civil court. This Court, while examining the question whether there could be a difference 5 2011 (3) Kar.L.J 261
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in the said position after the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 is amended vide the Karnataka Hindu Religious and Charitable Endowments (Amendment) Act, 2011, has opined that the Rajya Dharmika Parishat under Section 20- A(1)(d) KHRCE Act could only resolve a dispute which is in the nature of an in praesenti dispute as to who holds or held the office of the 'Hereditary Trustee' as against the larger question as to who could succeed to the office of the Hereditary Trustee. The question as to who should succeed to the office of Hereditary Trustee will have to be decided by a civil court. Further, the Rajya Dharmika Parishat under section 20-A(2)(vii) of the KHRCE Act could record the name of a member of the family entitled to succeed to the office of the Hereditary Trustee if there is no dispute but after formulating an opinion on whether there is a dispute. The Scheme under the KHRCE Act for appointment of a 'Fit
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Person' as an interregnum arrangement will have to be considered in this background.
17. While the appropriate forums will have to decide on the questions as to who could succeed to the office of 'Hereditary Trustee' according to the personal law, who holds or held the office of Hereditary Trustee in praesenti and whether the name of a family member could be recorded as being entitled to succeed to the office of the Hereditary Trustee, the Rajya Dharmika Parishat, pending decision on these questions, could in exercise of the jurisdiction under Section 25-A(3) of the KHRCE Act appoint a 'Fit Person', as an interregnum arrangement but subject to the conditions therein.
18. The provisions of Section 25-A KHRCE Act read as follows:
"25A. Provision relating to institution managed by Hereditary Trustee.- (1) No
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committee of management shall be constituted in respect of the notified institutions managed exclusively by hereditary trustees. The power of management shall vest in such hereditary trustee.
(2) If there is no legal heir to succeed the office of the hereditary trustee, the Rajya Dharmika Parishat or the Zilla Dharmika Parishat, as the case may be, shall constitute the committee of management as provided under section 25.
(3) When a temporary vacancy occurs in the office of a hereditary trustee and if there is a dispute with regard to right of succession to such office and such vacancy cannot be filled up immediately or when a successor is a minor and has no guardian fit and willing to act or there is a dispute regard to as to who is entitled to succeed such office, the Rajya Dharmika Parishat may appoint a fit person to discharge functions of the office of hereditary trustee until the disability ceases or another successor succeeds to such office:
Provided that in making any appointment, the Rajya Dharmika Parishat shall have due regard
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to the claims of members of the said family, if any entitled to the succession."
The provisions of Section 25-A(3) of the KHRCE Act stipulate that the Rajya Dharmika Parishat may appoint a 'Fit Person' only when a 'temporary vacancy' arises in the office of a Hereditary Trustee. Further, the 'temporary vacancy', for the purposes of the provisions of Section 25- A(3) of the KHRCE Act, would arise under three circumstances. The three circumstances are: (i) when there is a dispute with regard to right of succession to such office and such vacancy cannot be filled up immediately, or (ii) when a successor is a minor and has no guardian fit and willing to act, or (iii) when there is a dispute regard to as to who is entitled to succeed to such office. Further, the appointment of a 'Fit Person' to discharge functions of the office of Hereditary Trustee could be until the disability ceases or another successor succeeds to such office.
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19. The Scheme under Section 25-A of the KHRCE Act leaves no room for doubt that in the event of a 'temporary vacancy' for any of the reasons as aforesaid, the Rajya Dharmika Parishat can appoint a 'Fit Person' either for the period until the disability, arising from the first two of the circumstances, ceases or until a successor succeeds. However, in the cases of temporary vacancy because of the dispute about who should succeed to the office of the Hereditary Trustee, a larger question that will have to be decided only by the civil courts, the Rajya Dharmika Parishat will have the jurisdiction to appoint a 'Fit Person' until such question is decided by the civil court. In this Scheme under the provisions of Section 25-A(3) of the KHRCE Act, if the Rajya Dharmika Parishat decides to appoint a 'Fit Person' until the civil court decides on such question, the same cannot be frowned upon. Accordingly, the first of the questions is answered.
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20. In the present case, as already observed supra, the Rajya Dharmika Parishat's decision dated 4.7.2019 is that the appointment of the fifth respondent as the 'Fit Person' is only until it declares on the question of succession to the office of the Hereditary Trustee of the temple, and it is only in the third respondent's order dated 12.7.2019 it is stated that the appointment of the fifth respondent would be for the period until the suit in OS No.297/2018 is finally decided. The jurisdiction to appoint a 'Fit Person', and decide on the tenure of such appointment, could only be with the Rajya Dharmika Parishat in the light of the provisions of Section 25-A of the KHRCE Act. Therefore, the third respondent's order dated 12.7.2019 is clearly without jurisdiction.
21. The Rajya Dharmika Parishat, while deciding on who should be appointed as the 'Fit Person' under section 25-A of the KHRCE Act, decides on who should oversee the performance of the temple rituals and attend to the
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temple's affairs. As provided in proviso to section 25-A of the KHRCE Act, the Rajya Dharmika Parishat should give due regard to the claims of the members of the family entitled to succeed to the office of the Hereditary Trustee. The consideration of the requirements of Section 25-A(3) of the KHRCE Act (including the due consideration to the claims of the members of the family entitled to succeed to the office of the Hereditary Trustee), will have to be borne out by the order of the Rajya Dharmika Parishat.
22. The learned Senior Counsel for the fifth respondent submits that because of the order in WP No. 19651/2015, confirmation thereof in WA No.4785/2015 and the subsequent orders in CCC No.1103/2019 (Civil), the fifth respondent would be entitled to function as the 'Fit Person'. Therefore the fifth respondent's appointment is consequential. But, the merits of Rajya Dharmika Parishat's decision dated 4.7.2019 cannot be tested on the strength of the same because these proceedings are not
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referred to in its impugned decision. It is oft reiterated that when a statutory functionary makes an order, its validity must be judged by the reasons mentioned in such order and supplemental reasons cannot be furnished either in the shape of affidavit or in any manner to support such order. Otherwise, an order that is bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out6. Therefore, the reliance on the circumstances relied upon by the learned Senior Counsel would not avail to the fifth respondent.
23. Further, in the present case, the appellants' application and the fifth respondent's submission setting up rival claims for the appointment as 'Fit Person/s' is filed on 4.7.2019, and on the very same day, the Rajya Dharmika Parishat resolves to appoint the fifth respondent 6 A useful reference could be made in this regard to the decisions starting with the decision in Commissioner of Police v Gobhardandas Bhanji, AIR 1952 SC 16 and also in T P Sen Kumar v. Union of India, (2017) 6 SCC 8001
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as the 'Fit Person' under Section 25-A KHRCE Act. The appropriate course for compliance with the requirements of law should have been for the Rajya Dharmika Parishat to extend opportunities to the appellants and the fifth respondent to substantiate their respective claims as against the claims of the other and thereafter decide on rival claims. The absence of such opportunities, especially in the facts and circumstances of the case, would be fatal and the Rajya Dharmika Parishat's decision is arbitrary and unreasonable for want of opportunity to the appellants to justify their claim as against the claim of the fifth respondent. The second question is answered accordingly in favour of the appellants. The Rajya Dharmika Parishat's decision dated 4.7.2019 cannot be sustained.
24. For the foregoing, this Court is of the considered view that the Rajya Dharmika Parishat's impugned decision dated 4.7.2019 and the third respondent's order dated 12.7.2019 are liable to be set-aside, and the Rajya
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Dharmika Parishat be directed to reconsider the applications by the appellants and the fifth respondent for appointment of 'Fit Person/s' under Section 25-A of the KHRCE Act after affording opportunities of hearing to the appellants and the fifth respondent with liberty to both to move the Rajya Dharmika Parishat post this order for an early decision. Hence the following:
ORDER The appeal is allowed, and the impugned Rajya Dharmika Parishat's decision dated 4.7.2019 and the third respondent's order dated 12.7.2019 in NO. ADM 8 CR 12/2017-18 dated 12.7.2019 are set aside. The Rajya Dharmika Parishat is directed to reconsider the application by the appellants and the fifth respondent for appointment of 'Fit Person/s' with the opportunities of hearing to both the appellants and the fifth respondent
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The pending interlocutory applications do not survive for consideration and stand disposed of.
SD/-
JUDGE nv*' ct:sr