Karnataka High Court
Sri K Shivaraj Shetty vs The State Of Karnataka on 26 March, 2024
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.5898 OF 2023 (GM - R/C)
BETWEEN:
SRI K.SHIVARAJ SHETTY
S/O LATE NARAYANA SHETTY,
AGED ABOUT 68 YEARS,
R/AT KODIKAL,
URVA STORES, ASHOK NAGAR
MANGALURU TALUK
D.K.DISTRICT - 575 006.
AND ALSO
SUNKADAKATTE KOTEDA BABBU DAIVASTANA,
REPRESENTED BY THE MANAGING TRUSTEE
K.SHIVARAJ SHETTY,
URVA STORES, DEREBAIL VILLAGE,
MANGALURU TALUK,
D.K.DISTRICT - 575 006.
... PETITIONER
(BY SRI K.RAVISHANKAR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF
2
RELIGIOUS AND ENDOWMENTS
VIDHANA SOUDHA
BENGALURU - 560 001.
2. THE COMMISSIONER
HINDU RELIGIOUS AND CHARITABLE
ENDOWMENT DEPARTMENT
SRI MALAI MAHADESHWARA VARTHA BHAVAN,
2ND FLOOR, ALOOR VENKATARAO ROAD,
CHAMARAJAPET,
BENGALURU - 560 018.
3. THE DEPUTY COMMISSIONER
HINDU RELIGIOUS AND CHARITABLE
ENDOWMENT DEPARTMENT
DAKSHINA KANNADA DISTRICT
MANGALURU - 575 001.
4. SUNKADAKATTE KOTEDA BABBU DAIVASTANA,
POSHAKA SAMITHI (R)
REPRESENTED BY ITS SECRETARY,
URVA STORES, DEREBAIL VILLAGE,
MANGALURU TALUK,
D.K.DISTRICT - 575 006.
... RESPONDENTS
(BY SRI B.V.KRISHNA, AGA FOR R1 TO R3;
SRI PUNDIKAI ISHWARA BHAT, ADVOCATE FOR C/R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DTD 28/02/2023 PASSED BY THE R-3 BEARING
NO. DVS. L. AW. CR. 4/2023/223188/F1 (PRODUCED VIDE
ANNEXURE-N) TO THE WRIT PETITION.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 19.03.2024, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
3
ORDER
Petitioner is before this Court calling in question an order dated 28-02-2023 passed by the 3rd respondent-Deputy Commissioner, Dakshina Kannada, by which the application filed by the 4th respondent for grant of permission to conduct Harake Nemothsava on 18-03-2023 and 19-03-2023 is allowed.
2. Heard Sri. K.Ravishankar, learned counsel appearing for the petitioner and Sri.B.V.Krishna, learned Additional Government Advocate appearing for respondent Nos.1 to 3 and Sri.Pundikai Ishwara Bhat, learned counsel appearing for respondent No.4.
3. Facts in brief germane are as follows:
It is the case of the petitioner that his father constructed a Daivastana which is known as Sunkadakatte Koteda Babbu Daivastana in the year 1958 on a Government land in Sy.No.174/31. It is the averment of the petitioner that after the death of his father the petitioner continued to be the Managing Trustee and is looking after the Daivastana. The rituals, pooja, kola 4 etc., on every auspicious occasion is performed by Mundala community people and now by name one Umesh, all on the supervision of the petitioner.
4. The petitioner had initiated O.S.No.149 of 1983 seeking injunction against 7 persons, all of whom are said to be the members of the 4th respondent - Sunkadakatte Koteda Babbu Daivastana Poshaka Samithi ('Samithi' for short). The suit was instituted by the petitioner on the score that the members of the Samithi interfered with the possession and management of the said Daivastana. The suit comes to be decreed on 29-11-1988 restraining the defendants therein from committing trespass and interfering with the plaintiff's possession and management of the said Daivastana. This is called in question by the defendants therein in Regular Appeal No.9 of 1989, which comes to be dismissed on 14-09-1990. The defendants in the suit then prefer a regular second appeal in RSA No.342 of 1992 challenging the judgment and decree passed by the trial Court (supra). The RSA comes to be dismissed on 16-06-1992. It is the case of the 5 petitioner that in the light of the said suit being decreed, the petitioner is in possession and management of the Daivastana.
5. The petitioner further claims to have filed O.S.No.806 of 1990 for declaration of the title of the property in his name by way of adverse possession. The said suit is decreed by the trial Court on 22-07-1995 declaring the petitioner to be the owner of the schedule property and also restrained the Government from interfering with the possession. Things standing thus, averment further travels to state that the 4th respondent formed a Samithi and began to claim the management and possession on the ground that the Daivastana belonged to Mundala community, a scheduled caste. The State Government claiming to be aggrieved by the judgment and decree dated 22-07-1995 preferred an appeal before the First appellate Court in R.A.No.300 of 2004. The 4th respondent also seeking leave of the Court filed R.A.No.308 of 2004. The First Appellate Court allowed the R.A.No.300 of 2024 preferred by the State Government and dismissed the suit filed by the 4th respondent. While so dismissing R.A.No. 308 of 2004, directed that if the petitioner and the 4th respondent generates any conflict of 6 interest in the management and performance of pooja, they are at liberty to approach the Competent Authority.
6. The petitioner and the 4th respondent, both being aggrieved by the judgment and decree of the First Appellate Court, preferred RSA No.180 of 2007 and RSA No.1828 of 2008. This Court, in terms of its judgment dated 18-11-2008 partly allows RSA No.180 of 2007 filed by the petitioner concurring that the possession of the land is with the petitioner and modified the judgment and decree passed by the First Appellate Court, directing status quo as regards the management of the Daivastana and dismissed the RSA No.1828 of 2008. The parties were still at liberty to approach the Appropriate Authority, as was observed in the First Appellate Court. The petitioner preferred SLP 4213 of 2009 which comes to be dismissed on 27-02-2009.
7. The 4th respondent, in the interregnum, submits a representation on 29-12-2008 requesting the 3rd respondent to permit them to perform pooja at the said Daivastana. The said 7 representation comes to be rejected by the 3rd respondent. This is called in question in W.P.No.3227 of 2009. This Court dismisses the writ petition on the score that the Samithi is not Mundala community. The 4th respondent then approaches the Deputy Commissioner in the light of the aforesaid orders in the regular second appeal for management of the Daivastana. The 3rd respondent passes an order permitting the 4th respondent to file an application to include the said Daivastana as a notified institution.
The petitioner being aggrieved by the said order, approaches this Court in W.P.11195 of 2011, which is disposed permitting a revision petition to be filed against the said order.
8. Both the petitioner and the 4th respondent file revision petitions before the 2nd respondent Commissioner, Hindu Religious and Charitable Endowments. The revision petitions were preferred in the year 2013, it is disposed after 8 years in 2021 by a common order dated 19-02-2021 partly allowing the revision petitions, setting aside the order of the Deputy Commissioner and remitting the matter back to the Deputy Commissioner. Being aggrieved by the said order, the petitioner filed W.P.No.9821 of 2021. This 8 Court, grants an interim order of stay of the order dated 19-02-2021 passed in the revision petitions.
9. It is the averment in the petition that the 4th respondent, during the pendency of the proceedings before the Revisional Authority, used to file representations before the Deputy Commissioner seeking permission to perform pooja - Harake Nemothsava and when those representations were not considered, used to knock at the doors of this Court. One such representation was directed to be considered in W.P.5608 of 2022 on 15-03-2022.
The 3rd respondent, on the consideration of the representation passed an order on 16-03-2022 permitting 4th respondent to perform pooja. In the light of the order in W.P.No.5608 of 2022, the 4th respondent once again submits a representation on 02-01-2023 seeking permission to perform Harake Nemothsava on 18-03-2023 and 19-03-2023. The petitioner also filed an application requesting to provide copies of the application and documents to enable him to file objections to the application and avers to have brought it to the notice of the 3rd respondent that annual ritual has already been conducted on 04-02-2023 and 9 05-02-2023. Petitioner is said to have filed his objections. The 3rd respondent is said to have passed an order without considering the objections filed by the petitioner. It is this that has driven the petitioner to the subject petition.
10. The learned counsel appearing for the petitioner contends that the 3rd respondent has passed an order without considering the material on record and contrary to the direction issued by this Court. He would submit that the Daivastana is a private temple being administered and managed by the private committee of management. The 3rd respondent has no jurisdiction to pass an order on an institution that is not notified, apart from the fact that the order passed is contrary to principles of natural justice. It is the further submission of the learned counsel that Daivastana even if managed by the petitioner, the performance of rituals and pooja is done by a priest of the Mundala community by name one Umesh, therefore, the grievance of the 4th respondent that the temple is not managed by Mandala Community is wrong. The petitioner would seek quashment of the entire proceedings.
1011. Per-contra, the learned counsel representing the 4th respondent though has not preferred to file statement of objections, would contend that his submissions be taken as objections. It is the submission of the learned counsel that the temple belongs to people of Mundala community and the Samithi is the one who is taking care of the interest of the community and has been performing Harake Nemothsava year on year, as directed by the Deputy Commissioner from time to time. He would admit that it is not a notified temple, but would submit that permission was accorded to approach the Competent Authority in case of a dispute.
It is therefore a Deputy commissioner is dragged into these proceedings. He would seek that the order granting permission does not suffer from any illegality.
12. The learned Additional Government Advocate representing respondents 1 to 3 would also submit that the dispute resolution is only pursuant to the orders passed by the Competent Courts and this Court. Therefore, to resolve the dispute and in public interest, the Deputy Commissioner has interfered.
1113. I have given my anxious consideration to the submissions made by the respective learned counsel appearing for the parties and have perused the material on record.
14. The afore-narrated facts are all what is averred in the petition. It would suffice if the story is fast forwarded to the disposal of the Regular Second Appeal filed by the petitioner and the 4th respondent. This Court, considering the entire spectrum of the controversy between the two, by a detailed order dated 18-11-2008, disposed the Regular Second Appeal Nos.180 of 2007 c/w 1828 of 2008 on the following reasons:
".... .... ....
17. In the light of the submission made as aforesaid by the learned counsel for the parties, I proceed to answer the substantial question of law raised for consideration. The said question is as under:
Whether the lower appellate court was Justified in interfering with the trial court's decree for permanent injunction granted when admittedly the suit schedule property forms part of temple property which is in the management of the plaintiff?
18. On carefully going through the stand taken by the respective parties more particularly before the trial court, it is clear that the suit land measuring 19 cents situated in Sy.No. 174/31 of Derebail village belongs to the State Government and the revenue records also 12 indicate that the State Government is the owner of this vacant land. It is also an admitted fact that there is a temple in a Portion of the suit land and in the said temple the deity Kordabbu Daiva is installed and the further fact that is admitted is person belonging to Mundala community is performing the pooja although it is the plaintiff who is managing the temple affairs. The plaintiff himself has admitted that he is getting the performance of the religious functions done through the Mundala community people.
19. With the above admitted facts, the point to be considered is as to, whether the lower appellate court was justified in dismissing the suit of the plaintiff by reversing the judgment of the trial court.
20. The plaintiff had sought for declaration on the ground of adverse possession. The stand of the Government is that the temple in question is a public temple and public offer worship. In order to establish that the temple in the suit land belongs to the plaintiff exclusively or that it is the family deity of the plaintiff and that the temple is the private temple of the plaintiff, the evidence placed by the plaintiff has been held to be totally insufficient. The lower appellate court has referred to all these aspects in the course of its judgment and has observed that the plaintiff has failed to place necessary proof to show that the temple is constructed at the plaintiff's cost or that it is constructed out of the funds of the plaintiff's family. The further finding is that the plaintiff also has failed to prove exclusive possession of the suit property adverse to the interest of the Government. Learned Judge of the lower appellate court apart from referring to the above evidence on record and the plaintiff having failed to establish that the temple is constructed by the plaintiff's father out of his own funds without the help of others and the further fact that the plaintiff has not claimed that it is a family temple, under these circumstances, the plea of adverse possession therefore was rejected and in doing so, learned Judge of the lower appellate court also referred to various decisions in this connection.
1321. In my view, the above conclusion of the lower appellate court cannot be termed as perverse or contrary to the evidence on record nor can it be said that the lower appellate court applied the law erroneously in declining to accept the plaintiff's case for adverse possession. I therefore do not find any case made out for this court to interfere with the view taken by the lower appellate court in rejecting the claim of the plaintiff for adverse possession.
22. As far as the management of the affairs of the temple or Daivasthana is concerned, learned Judge of the lower appellate court has observed at para. 23 of its judgment that there is a dispute between the plaintiff and the third party (the Samithi) as regards the management and affairs of the temple and this dispute shall have be determined in separate proceedings by adducing evidence and therefore in a suit that is filed by the plaintiff for declaration of title by adverse possession, the said aspect cannot be gone into and having said that the lower appellate court while dismissing the appeal filed by the Samithi i.e.R.A.No.308/04, has also given the liberty to the said appellant to seek the relief against the plaintiff if he is so advised as regards management of the affairs and performance of religious function in the temple or Daivasthana is concerned.
23. Learned Government Advocate also submitted that as regards dispute between the two rival groups over the management and affairs of the temple, the same will have to be sorted out by the Dy. Commissioner and therefore the Government cannot make any submission in this regard, but the only fact which the learned Government Advocate wanted this court to take note of is that the suit land has been reserved for depressed class. In view of the aforesaid submission made by the learned Government Advocate, I am of the view that the lower appellate court has not committed any error while dismissing the appeal filed by the Samithi, particularly in the light of the observations made by it at para. 23 of the judgment and the direction given in the course of operative portion of the judgment itself.
24. As far as the substantial question of law that is raised for consideration is concerned, though the learned Judge of the 14 appellate court was justified in taking the view that the plaintiff has failed to establish his case of adverse possession, yet the material on record clearly reveals that the plaintiff has been in possession of the suit temple as regards the management of the temple affairs, but performance of pooja is concerned, it is the people of Mundala community who are said to be the persons performing the pooja.
25. Therefore, the lower appellate court could not have dismissed the suit of the plaintiff in its entirety but, to the extent of the plaintiff being in the management of the temple is concerned, until the dispute between the plaintiff and the Samithi is decided before the appropriate forum, the lower appellate court, having regard to the facts and circumstances of this case, could not have dismissed the suit of the plaintiff in its entirety. But, having observed at paragraph-23 of its judgment that the plaintiff and the Samithi can get resolved their dispute in a separate proceeding, the lower appellate court, therefore, could have directed the parties concerned to maintain status quo with regard to the management of the temple is concerned and, to the said extent, the judgment of the lower appellate court requires to be interfered with. Accordingly, the substantial question of law stands answered.
26. In the result, I pass the following order:
The appeal filed by the Samithi i.e., R.S.A.No. 1828/2008, is dismissed and the appeal preferred by the plaintiff i.e., R.S.A.No.180/2007, is allowed in part to the extent of modifying the judgment of the lower appellate court and directing the parties to maintain status quo as regards the temple's management is concerned.
The judgment of the lower appellate court in other respects is confirmed.
As far as the differences between the plaintiff and the Samithi over the management of the temple affairs are concerned, it is for the appropriate authority to deal with the same in accordance with law."
(Emphasis supplied) 15 While so doing, the appeal filed by the Samithi was dismissed.
Samithi is the 4th respondent in the petition and the appeal filed by the plaintiff, the present petitioner is allowed in part, modifying the judgment of the First Appellate Court directing parties to maintain status quo regarding management of the Daivastana. On other aspects the judgment of the First Appellate Court was confirmed. It was observed that due to the differences between the plaintiff and the Samithi over the management of the temple affairs, it was for the Appropriate Authority to deal with the same, in accordance with law.
15. The petitioner challenges the same in SLP 4213 of 2009, only to be dismissed. Then comes the petition by the 4th respondent in W.P.No.3227 of 2009 calling in question a notification dated 29-10-2009 refusing to grant permission to the Samithi to perform annual Utsava to be held on 7th and 8th of February 2009.
This Court dismissed the petition, while so doing, observes as follows:
".... .... ....
165. Performance of poojas in the temple is altogether different from managing the temple and conducting annual ceremonies connected with the temple. The question who has the right to manage the temple, who should conduct the annual ceremonies of the temple are yet to be adjudicated by the authorities. The samithi is not Mundala community. It consists of Mundala community members. Merely because the samithi consists of only Mundala community people that does not give a right to the samithi to perform poojas. Poojas are to be performed by a community people, whereas, petitioner is a local samithi. In that view of the matter, I do not find any merit in this writ petition. Accordingly, it is dismissed."
(Emphasis supplied) The co-ordinate Bench observes that performance of pooja in the temple is altogether different from managing the temple. Who should conduct annual ceremonies of the temple is yet to be adjudicated by the authorities. It was observed that Samithi was not a Mundala community, it may consist members belonging to the community, but that would not become a temple of the Mundala community and the Samithi getting a right to perform pooja.
16. The petitioner then, as observed, approaches this Court in W.P.No.11195 of 2011 seeking quashment of an order passed by the Deputy Commissioner dated 25-01-2011, by which the 17 permission was granted to perform pooja. This is disposed directing the petitioner to approach the Revisional Authority. Both the Samithi and the petitioner were before the Revision Authority in the years 2012 and 2013. This is disposed on 19-02-2021, by the following order:
".... .... ....
DzÀÄzÀjAzÀ, ªÉÄîÌAqÀ J¯Áè CA±ÀUÀ¼À£ÀÄß ¥Àj²Ã°¹, ¥ÀjUÀt¹, F PɼÀPÀAqÀAvÉ DzÉñÀ ºÉÆgÀr¹zÉ.
DzÉñÀ J«±À£ï Cfð ¸ÀASÉå:JrJA 7/Dgï¦ 14/2010-11 ºÁUÀÆ j«±À£ï Cfð ¸ÀASÉå:JrJA 7/Dgï ¦ 14/2012-13 C£ÀÄß ¨sÁUÀ±À: ¥ÀÄgÀ¸ÀÌj¹zÉ. f¯Áè¢üPÁj, zÀQët PÀ£ÀßqÀ f¯Éè EªÀgÀ ¥Àæ²ßvÀ DzÉñÀ ¸ÀASÉå J¯ïJqÀ§Æèöå/¹Dgï 32/2008-09, ¢£ÁAPÀ:25.01.2011 C£ÀÄß gÀzÀÄÝ¥Àr¹zÉ. ªÀÄAUÀ¼ÀÆgÀÄ vÁ®ÆèPÀÄ, zÉÃgɨÉ樀 UÁæªÀÄzÀ ¸ÀªÉð £ÀA.174/31 gÀ°è£À 0.19 JPÀgÉ d«Ää£À ªÀÄAdÆgÁwUÉ ¸ÀA§A¢ü¹zÀ ¥ÀæPÀgÀt ¸ÀASÉå:J¯ïJ£ïr (1)/¦rDgï/581/1990-91 C£ÀÄß PÁ£ÀÆ£ÀÄ jÃvÁå vÀéjvÀªÁV EvÀåxÀð¥Àr¸À®Ä f¯Áè¢üPÁj, zÀQët PÀ£ÀßqÀ f¯Éè EªÀjUÉ DzÉò¹zÉ.
f¯Áè¢üPÁjAiÀĪÀgÀÄ ¨sÀƪÀÄAdÆgÁwUÉ ¸ÀA§A¢ü¹zÀ ¥ÀæPÀgÀtªÀ£ÀÄß EvÀåxÀð¥Àr¸ÀĪÀªÀgÉUÉ PÉÆÃmÉzÀ ²æà §§Äâ zÉʪÀ¸ÁÜ£ÀzÀ DqÀ½vÀzÀ §UÉÎ G¨sÀAiÀÄ ¥ÀPÀëPÁgÀgÀÄ AiÀÄxÁ¹ÜwAiÀÄ£ÀÄß PÁAiÀÄÄÝPÉƼÀî®Ä ¤zÉÃð±À£À ¤ÃrzÉ.
F DzÉñÀªÀ£ÀÄß ¢£ÁAPÀ:19.02.2021 gÀAzÀÄ vÉgÉzÀ £ÁåAiÀiÁ®AiÀÄzÀ°è WÉÆö¸À¯Á¬ÄvÀÄ."
The revisional authority by the aforesaid order, remits the matter back to the Deputy Commissioner for consideration afresh. In the interregnum, the 4th respondent had submitted a representation as was being done throughout and approaches this Court for grant of 18 permission to perform Harake Nemothsava. This Court, disposed the petition, by the following order:
".... .... ....
3. The petitioner is before this court praying for writ of mandamus to direct respondent No.2 to grant permission to the petitioner-Samithi to perform the Nemotsava/Kola on 19.03.2022 and 20.03.2022 in the temple and also the petitioner have prayed to quash the order bearing No.E.Dis. Mun(4)/ethara/CR/65/2021-22 dated 05.02.2022 passed by the Deputy Commissioner, Mangaluru/respondent No.2 as per Annexure-J1.
4. Both the learned counsel for the petitioner as well as respondent No.3 submit that the dispute with regard to management of the temple is pending before respondent No.2 - Deputy Commissioner.
5. As the dispute with regard to Managing Committee of the temple is pending before respondent No.2 - Deputy Commissioner, it is for the Deputy Commissioner to take decision on the representation of the petitioner which is at Annexure-J after providing an opportunity to petitioner as well as respondent No.3 herein.
6. When the dispute with regard to Managing Committee is pending before Deputy Commissioner - respondent No.2, the Deputy Commissioner could not have forwarded the representation of the petitioner to Commissioner City Corporation, Mangaluru under Annexure-J1 vide letter dated 05.02.2002.
7 Learned HCGP would submit that the Deputy Commissioner/respondent No.2 would take an appropriate decision on the representation of the petitioner as at Annexure-J after affording an opportunity to both the parties.
198. Hence, the following:
ORDER Writ petition is disposed of with a direction to respondent No.2/Deputy Commissioner to consider and pass an appropriate order in accordance with law on the representation of the petitioner (Annexure-J) dated 24.1.2022 after affording an opportunity to petitioner as well respondent No.3 within a period of Two days from today.
The petitioner as well as respondent No.3 shall appear before respondent No.2 - Deputy Commissioner on 16.03.2022 at 03:00 p.m. without excepting any notice.
Smt. Rashmi Patel, learned HCGP is directed to communicate the order forthwith telephonically."
(Emphasis supplied) A direction was issued to the Deputy Commissioner to consider the representation, in accordance with law, after affording an opportunity. The Deputy Commissioner passes an order on 16-03-2022 permitting Samithi to perform pooja. Again comes the annual ritual and again comes the subject petition, as on 28-02- 2023, the Deputy Commissioner permits the 4th respondent Samithi to perform pooja by the following order:
".... .... ....
201. "gÁdå GZÀÒ£ÁåAiÀiÁ®AiÀÄzÀ qÀ§Æèöå.¦.£ÀA.3227/2009 (GM - R/C) ¢£ÁAPÀ 03.02.2009 gÀ DzÉñÀPÉÌ AiÀiÁªÀÅzÉà ZÀÄåw ¨ÁgÀzÀAvÉ ºÀgÀPÉ £ÉêÉÆÃvÀìªÀ £ÀqɸÀĪÀÅzÀÄ. F DzÉñÀzÀ «gÀÄzÀݪÁV ªÀwð¸ÀĪÀÅzÀÄ PÀAqÀÄ §AzÀ°è PÁ£ÀÆ£ÀÄ PÀæªÄÀ PÉÊUÉƼÀî¯ÁUÀĪÀÅzÀÄ.
2. ºÀgÀPÉ £ÉêÉÆÃvÀìªÀ £ÀqɸÀ®AiÀÄÄ ²æà PÉÆÃzÀð§Äâ zÉʪÀ¸ÁÜ£À ªÀÄvÀÄÛ CZÀðPÀgÀ ¸ÉÃªÉ ºÁUÀÆ zÉʪÀzÀ ªÀÄÆwð «UÀæºÀ ªÀÄÄAvÁzÀ AiÀiÁªÀÅzÉà ¥ÀÆeÁ ¸ÁªÀiÁVæUÀ¼À£ÄÀ ß PÉÆÃgÀvÀPÀÌzÀÝ®è.
3. ºÀgÀPÉ £ÉêÉÆÃvÀìªÀ £ÀqɸÀĪÀ ¢£ÀzÀAzÀÄ ²æà PÉÆÃzÀð§Äâ zÉʪÀ¸ÁÜ£ÀzÀ ¨ÁV®£ÀÄß vÉgÉAiÀįÁUÀĪÀÅ¢®è.
4. ¸À¢æ ºÀgÀPÉ £ÉêÉÆÃvÀìªÀ £ÀqɹzÀ £ÀAvÀgÀ zÉʪÀ¸ÁÜ£ÀzÀ SÁ° ¸ÀܼÀªÀ£ÀÄß ±ÀÄaAiÀiÁV EqÀvÀPÀÌzÀÄÝ.
5. ¸À¢æ ºÀgÀPÉ £ÉêÉÆÃvÀìªÀPÉÌ vÀUÀ®ÄªÀ RZÀÄð ªÉZÀÑUÀ¼À£ÀÄß ¸À¢æ ¥ÉÆõÀPÀ ¸À«ÄwAiÀĪÀgÉà ¨sÀj¸ÀvÀPÀÌzÀÄÝ.
6. ¸À¢æ ºÀgÀPÉ £ÉêÉÆÃvÀìªÀ ¸ÀA§AzsÀ ¥ÉÆðøï E¯ÁSÉ, £ÀUÀgÀ¥Á°PÉ ªÀÄvÀÄÛ DgÉÆÃUÀå E¯ÁSÉ ¸ÀA§AzsÀ¥ÀlÖ E¯ÁSÉUÀ¼À ªÀw¬ÄAzÀ ¥ÀƪÁð£ÀĪÀÄw ¥ÀqÉzÀÄ CªÀgÀÄ «¢ü¸ÄÀ ªÀ µÀgÀvÀÄÛUÀ¼ÉÆA¢UÉ F ªÉÄîÌAqÀ µÀgÀvÀÄÛUÀ¼À£ÀÄß PÀqÁØAiÀĪÁV ¥Á°¸ÀvÀPÀÌzÀÄÝ.
7. ²æà PÉÆÃzÀð§Äâ zÉʪÀ¸ÁÜ£ÀzÀ ºÉÆgÀUÉ SÁ°¬ÄgÀĪÀ ¸ÀܼÀzÀ°è ¹Ã«ÄvÀ ¢£ÀUÀ½UÉ vÁvÁÌ°PÀ ZÀ¥ÀàgÀ ¤«Äð¹PÉÆAqÀÄ ºÀgÀPÉ £ÉêÉÆÃvÀìªÀ £ÀqɸÀĪÀÅzÀÄ."
17. This Court permitted resolution of a dispute by the Deputy Commissioner, in accordance with law. The dispute between the two i.e., the petitioner and the 4th respondent has gone on for decades. It is not in dispute that it is not a notified temple.
Therefore, the jurisdiction to the Deputy Commissioner would not lie and the dispute can be resolved only by the Rajya Dharmika Parishat under Section 20A of the Karnataka Hindu Religious 21 Institutions and Charitable Endowments Act, 1997. Identical issue arose before a co-ordinate bench in the case of CHANNAKESHWAVASWAMY TEMPLE V. COMMISSIONER1 wherein appointment of an administrator to a non-notified temple was called in question. The co-ordinate bench has held as follows:
9. Shri R. Subramanya, learned Additional Advocate General submitted that petitioners are not Hereditary Trustees.
They are only Vahivatdars or Managers. There are differences of opinion among them. Therefore, the Tahasildar submitted a report dated 8-1-2015 proposing appointment of Deputy Tahasildar as the Administrator. The Deputy Commissioner being the immediate controlling authority has taken appropriate action to ensure that the religious functions including the ensuing Rathothsava (Car Festival) are smoothly carried out. Petitioners in both writ petitions claim that they are Hereditary Trustees. Their dispute can be resolved only by the Rajya Dharmika Parishath under S. 20-A of the 1997 Act. Therefore, unless petitioners resolve their inter se dispute, the order dated 15-4-2017 appointing the Executive Officer of Sri Kalasa Temple as Administrator of Sri Channakeshavaswamy Temple, cannot be disturbed.
10. Shri Subramanya further submitted that under S. 4 of 1997 Act, the Deputy Commissioner shall have power of general superintendence and control to carry out provisions of the 1997 Act in respect of Hindu Religious Institutions and Charitable Endowments. S. 24(2) of 1997 Act also makes it clear that Deputy Commissioner shall be the immediate controlling authority in respect of notified Institutions within his jurisdiction. Since there is no provision to continue appointment of Administrator beyond one year, the Deputy Commissioner has passed order on 15-4-2017 and directed the Executive Officer of Sri Kalasheshawaraswamy Temple to manage the affairs of petitioners' Temple.
1 2020 SCC Online KAR 3070 22 .... .... ....
19. petitioners' case is, appointment of Administrator by the Deputy Commissioner is bad in law. Learned Additional Advocate General sought to sustain Administrator's appointment on the ground that Deputy Commissioner has power of general superintendence. Controlling authorities are defined under S. 24 and the role of Deputy Commissioner is defined under S. 24(2) of the Act. S. 24 of the Act reads as follows:
24. Controlling Authorities.--(1) Subject to the powers and jurisdiction of the Rajya Dharmika Parishat the Commissioner shall be the Chief Controlling Authority in regard of all matters commercial with notified institutions and he shall perform such duties and exercise such powers of superintendence and control as the State Government may by rules impose or as the case may be confer on him in respect of all or any class of notified institutions.
(2) The Deputy Commissioner shall subject to such terms and conditions as may be prescribed, be the immediate controlling authority in respect of notified institutions within his jurisdiction.
(3) The Assistant Commissioner shall subject to the authority of the Deputy Commissioner perform such duties and exercise such powers as may be prescribed.
24-A. Appointment of Executive Officer and term of office.
(1) The State Government or the Commissioner as the case may be, may appoint any officer to be the executive officer to a notified institution or to a group of notified institutions.
(2) The cadre of the executive officer to be appointed to the notified institution may be, based on the income of such institution.
(3) The executive Officer shall hold office for such form as may be fixed by the State Government and he shall exercise such power and perform such duties as may be prescribed.
(4) The executive Officer shall be deemed to be a public servant within the meaning of S. 21 of the Penal Code, 1860.
20. In the statement of objections filed through the Assistant Commissioner, Chikkamagalur Sub-Division, State 23 have described petitioners as "Vahivatdars". But State have admitted that the Vahivatdars are looking after the affairs of the Temple. The relevanty portion of the Statement of objection reads thus:
"4. The Respondents submits that on going through the records produced by the Petitioners to the Writ Petition, it only reflects that Ancestor and Petitioner were only managing the affairs of the Temple and to that some remuneration was paid to them by the Devotees. The Petitioners are not only the persons who used to manage the affairs of the Temple there are others who along with Petitioners are managing the affairs of the Temple and they were called as VAHIVATDARS. There are about four people who were managing the affairs of the Temple and were called as VAHIVATDARS, they are as follows.
(1) T.V. SEETHASAMAIAH (2) G.S. BHASKAR RAO GORASUKUDIGE (3) B.V. RAMESH BIDKINAMANI (4) S. VENKATARAMANAIAH And lastly the Petition T.S. Shyamanna. These Vahivatdars were all looking after the affairs of the Temple on rotation basis [yearly one person used to manage]. The Vahivatdars used to issue receipt to the devotees for whatever the devotees offered to the Temple. Copy of the receipts issued by the vahivatdars are herewith produced and marked as ANNEXURE R-1 R-7."
... (emphasis supplied)
21. S. 29 of the 1997 Act reads thus:
29. Appointment of Adminstrator.--The Rajya Dharmika Parishat or the Zilla Dharmika Parishat as the case may be shall appoint an officer of the State Government as Administrator in place of the Committee of management dissolved or suspended under sub-section (1) or (3) of S. 28 or after the expiry of the term of office of the Committee under S. 26 or for any other reasons and till a 24 new Committee of Management is constituted or for a period of six months whichever is earlier:
Provided that for the reasons to be recorded in writing the Rajya Dharmika Parishat or Zilla Dharmika Parishat, by order extend the said period by any further period, not exceeding six months at a time. So however, the said period shall not exceed one year in total.
22. Thus, statute provides for appointment of Administrator under S. 29 of 1997 Act by the Rajya Dharmika Parishat or the Zilla Dharmika Parishat. Therefore, the said power cannot be exercised by the Deputy Commissioner in the garb of "power of general superintendence" for unlimited period.
23. In Subramanian Swamy v. State of Tamil Nadu2 it is held as follows:
65. Even if the management of a temple is taken over to remedy the evil, the management must be handed over to the person concerned immediately after the evil stands remedied. Constitution thereafter would tantamount to usurpation of their proprietary rights or violation of the fundamental rights guaranteed by the Constitution in favour of the persons deprived. Therefore, taking over of the management in such circumstances must be for a limited period. Thus, such an expropriatory order requires to be considered strictly as it infringes the fundamental rights of the citizens and would amount to divesting them of their legitimate rights to manage and administer the temple for an indefinite period. We are of the view that the impugned order [Sri Sabanayagar Temple v. State of T.N., (2009) 4 LW 705 :
(2009) 8 Mad LJ 1503] is liable to be set aside for failure to prescribe the duration for which it will be in force.
66. Super-session of rights of administration cannot be of a permanent enduring nature. Its lite has to be reasonably fixed so as to be co-terminus with the removal of the consequences of maladministration. The reason is that the objective to take over the management and administrator is not the removal and replacement of the existing administration but to rectify and stump out the consequences of maladministration. Power to regulate does not mean power to supersede the administration for indefinite period.
2567. "Regulate" is defined as to direct; to direct by rule or restriction, to direct or manage according to the certain standards, to restrain or restrict. The word "regulate" is difficult to define as having any precise meaning. It is a word of broad import, having a broad meaning and may be very comprehensive in scope. Thus, it may mean to control or to subject to governing principles. Regulate has different set of meanings and must take its colour from the context in which it is used having regard to the purpose and object of the legislation. The word "regulate" is elastic enough to include issuance of directions, etc. (Vide K. Ramanathan v. State of T.N. [(1985) 2 SCC 116 : 1985 SCC (Cri) 162 : AIR 1985 SC 660] and Balmer Lawrie & Co. Ltd. v. Partha Sarathi Sen Roy [(2013) 8 SCC 345 : (2013) 3 SCC (Civ) 804 : (2014) 1 SCC (L&S) 114].)
68. Even otherwise it is not permissible for the State/statutory authorities to supersede the administration by adopting any oblique/circulators method. In Sant Lal Gupta v. Modern Coop. Group Housing Society Ltd. [(2010) 13 SCC 336 : (2010) 4 SCC (Civ) 904], this Court held : (SCC p. 344, para 21) "21. It is a settled proposition of law that what cannot be done directly, is not permissible to be done obliquely, meaning thereby, whatever is prohibited by law to be done, cannot regally be effected byy an indirect and circuitous contrivance on the principle of quando aliquid prohibetor, prohibetur et # per quod devenitur ad illud. An authority cannot be permitted to evade a law by "shift or continuance"."
69. We would also like to bring on record that various instances whereby acts of mismanagement /maladministration/misappropriation alleged to have been committed by Pothu Dikshitars have been brought to our notice. We have not gone into those issues since we have come to the conclusion that the power under the 1959 Act for appointment of an Executive Officer could not have been exercised in the absence of any prescription of circumstances/conditions in which such an appointment may be made. More so, the order of appointment of the Executive Officer does not disclose as for what reasons and under what circumstances his appointment was necessitated. Even otherwise, the order in which no period of its operation is prescribed, 26 is not sustainable being ex facie arbitrary, illegal and unjust.
24. In the case on hand, Deputy Commissioner has ordered appointment of Administrator on 13-1-2015 without recording any cogent reasons justifying the appointment and to circumvent the embargo in S. 29 of the 1997 Act. The said order was withdrawn and the Temple has been merged with another Temple. This is impermissible."
(Emphasis supplied) In the light of the aforesaid judgment rendered by the co-ordinate bench, which was in fact following a judgment of the Division Bench, in the case of SUBASH CHANDRA NAIK V. THE STATE OF KARNATAKA reported in ILR 2011 KAR 824, the issue needs to be decided either by the Rajya Dharmika Parishat or the parties have to approach the civil Court. Since the co-ordinate bench has already permitted the petitioner to approach the Competent Authority and the dispute involving religious practices, customs, usages and traditions, it would be the Rajya Dharmika Parishat under Section 20A of the Act to resolve the said dispute and not by the Deputy Commissioner.
2718. In the event, the parties are before the Rajya Dharmika Parishat, it shall consider all the history to the litigation and pass necessary orders, resolving the dispute within three months from the date of receipt of the copy of the order. The Rajya Dharmika Parishat, shall bear in mind, the observations made in the course of the order, while it adjudicates upon the rights of the petitioner and the 4th respondent. Ordered accordingly.
With the aforesaid observations, petition stands disposed.
Sd/-
JUDGE bkp CT:MJ