KADUVEERA MADA THAMMADI v. G. P. MADATHIMMADI — 1986 DIGILAW 38 (KAR)

RAMA JOIS, J. ( 1 ) IN these two Writ Petitions, the petitioners have prayed for quashing the order of the commissioner for Religious and Charitable Endowments, Bangalore, allowing the revision petitions presented by Respondents 1 and 2 and setting aside the order of me Executive Officer (Deputy Commissioner) in which their right to perform pooja at Mahadeswaraswamy Temple, kollegal Taluk, was set aside. ( 2 ) THE facts of the case in so tar as it is necessary and sufficient tor the disposal of these two Writ petitions, are as follows :the petitioner in the first Writ Petition filed an application before respondent 3, the Executive officer of Sri Mahadeswaraswamy Temple, praying for a declaration that he was entitled to perform pooja in the temple for a period of two months in a year. The claim was made on the basis of hereditary archakship. The claim was that originally the right to pooja was secured by one Annasalamma and the family was later divided into three branches and, as a result, respondents 1 and 2 had the right to perform pooja in the temple for four months each and the branch to which the petitioners belonged had the right to perform pooja in the temple tor a period of three months and again there were two branches in the branch to which the petitioners belonged and accordingly the petitioner in W. P. No. 22051 of 1980 was entitled to perform pooja for two months and the other petitioner in W. P. No. 22052 of 1980 was entitled to perform pooja for one month. The Executive Officer held an enquiry, recorded evidence and made an order on 17-9-1979. His finding was in favour of the petitioners. He declared that the petitioner in W. P. No. 22051 of 1980 had the right to perform pooja for two months and the petitioner in the other Writ Petition was entitled to perform pooja for one month. The operative portion of the order reads : "hence, I conclude that the petitioner Sri Kaduveera Madathammadi is entitled for two months pooja in the temple now performed as "poduvina Pooja" by the Doddapalu group and Shri Chelu basappa family Thammadies of Kaduveera group are entitled for one month pooja now performed as"poduvina Pooja" by Chikkapalu group. The operative portion of the order reads : "hence, I conclude that the petitioner Sri Kaduveera Madathammadi is entitled for two months pooja in the temple now performed as "poduvina Pooja" by the Doddapalu group and Shri Chelu basappa family Thammadies of Kaduveera group are entitled for one month pooja now performed as"poduvina Pooja" by Chikkapalu group. It is therefore ordered that the petitioner shri Kaduveera Mada Thammadi should be given two months pooja right in the temple falling in ashvija month corresponding to September-October and Chitra month corresponding to march-April in a year. " ( 3 ) AGAINST this order, the respondents 1 and 2 preferred revision petitions before the commissioner, respondent-4, under Section 18 (1) of Madras Hindu Religious and Charitable endowments Act, 1951 (hereinafter called the Act ). The Commissioner held, agreeing with the contention of the respondents 1 and 2, that the Executive Officer (Deputy Commissioner under the Act) had no jurisdiction to entertain the dispute under any of the provisions of the Act. Aggrieved by the said order, these two Writ Petitions are presented. ( 4 ) SHRI Narayan, Learned Counsel for the petitioners, contended that in view of the decision of this Court in Shamaraya v. Beloor Sri Mariamma Temple and Ors. , 1973 (2) K. L. J. 131 on which the petitioners rely, the Commissioner, respondent-4, could not have held that the Deputy commissioner had no jurisdiction to pass the order and therefore the order of the Commissioner suffered from patent error of law and was liable to be set aside. He submitted that under Section 57 (e) of the Act, as held by this Court in Shamaraya's case, 1968 (1) Mad.. 105, the Deputy commissioner had the power to decide whether the petitioners before him were entitled to archakship for any portion of the year on the basis of hereditary right and against such a decision a revision Under Section 18 or an appeal under Section 61 of the Act lies to the Commissioner and if the Commissioner decides the case on merits either way, the only course open to an unsuccessful party was to file a suit as provided in Section 62 of the Act. ( 5 ) IN Shamaraya's case, 1973 (2) K. L. J. 131, this Court interpreted the provisions of Section 57 of the Act. The relevant portion of the judgment reads : "8. ( 5 ) IN Shamaraya's case, 1973 (2) K. L. J. 131, this Court interpreted the provisions of Section 57 of the Act. The relevant portion of the judgment reads : "8. Following the decision of the Madras High Court in Solamalayan Poojari v. Commissioner, hrce (1968), 1973 (2) K. L. J. 131, Mad. L. J. . 105, the Learned Civil Judge held that the Deputy commissioner has jurisdiction to decide whether the plaintiff is entitled to the Office of the archak of defendant-1 temple and that hence that question cannot be agitated in a suit. 9. Mr. K. Balakrishna Rao, Learned Counsel for the appellant, contended that the power of the deputy Commissioner under Section 57 of the Act to decide whether any person is entitled by custom or otherwise to any honour, emoluments or perquisites in any religious institution, does not include the power to decide whether a person is entitled to hold any Office in such institution. But the very contention was considered and negatived by the Madras High Court in the aforesaid decision. Ramakrishnan, J. , while considering the scope of Section 63 (e) of the madras Hindu Religious and Charitable Endowments Act, 1959, which is practically identical with Section 57 (c) of the Act, observed thus at page 106 : "when the right to the Office and the right to the emoluments are both interlinked, the Deputy commissioner, while exercising jurisdiction regarding the right to the emoluments cannot refuse to exercise jurisdiction for deciding the right to the office which is a condition precedent to the applicant being entitled to the emoluments. " i am in respectful agreement with the above observation of his Lordship. I am unable to accept the contention of Mr. Balakrishna Rao that the Deputy Commissioner has jurisdiction to determine only the right to perquisite or emoluments, but has no jurisdiction to determine the right to hold the Office in a religious institution, to which such emoluments or perquisites are attached. " ( 6 ) IN the above case, this Court clearly held that the Deputy Commissioner functioning under section 57 (e) of the Act had jurisdiction to decide not only the emoluments which an archak was entitled to get but also the question whether a person was entitled to arachakship of a temple. " ( 6 ) IN the above case, this Court clearly held that the Deputy Commissioner functioning under section 57 (e) of the Act had jurisdiction to decide not only the emoluments which an archak was entitled to get but also the question whether a person was entitled to arachakship of a temple. The Learned Counsel for the petitioners is right in contending that in view of the decision of this court which was cited before the Commissioner, he had no alternative but to reject the contention of Respondents 1 and 2 that the Deputy Commissioner had no jurisdiction to decide the case. Even though the decision was cited, after referring to it in the order, the Commissioner completely overlooked the said Judgment and held that the Deputy Commissioner had no jurisdiction to decide the right to archakship. ( 7 ) THE Learned Counsel for the respondents also do not dispute that the Commissioner could not have ignored the decision in Shamaraya's case, 1973 (2) K. L. J. 131. The Learned Counsel, however, submitted that the interpretation of Section 57 (e) by this Court in Shamaraya's case, 1973 (2) K. L. J. 131 was not correct and on a true interpretation of Section 57 (e), it should be held that the question of right to archakship could be decided by the Deputy Commissioner only as an incidental question when a person makes a claim for emoluments on the ground that he was an archak and not when right to archakship was disputed by the opposite party. In support of the said contention, the Learned Counsel relied on the Judgment of the Supreme Court in V. S. Thaiagaraja Mudaliar v. Bava C. Chokkappa Mudaliar and ors. , AIR1974 SC 944 , (1974 )2 SCC58 , [1974 ]3 SCR388. In the said case, the question for consideration was whether the authority was empowered to decide the question whether a person was entitled to be a trustee, under Section 57 (b) of the Madras Act 19 of 1951. Section 57 (b) only provided that the Deputy Commissioner was entitled to decide whether a person holds or held office as a hereditary trustee. In view of the anguage of the provision, the Supreme Court held that there was no such power. Hence that decision is not apposite. Section 57 (b) only provided that the Deputy Commissioner was entitled to decide whether a person holds or held office as a hereditary trustee. In view of the anguage of the provision, the Supreme Court held that there was no such power. Hence that decision is not apposite. The Learned Counsel also relied upon a decision of the Madras High Court in V. Solamalayan poojari's case, 1968 (1) Mad.. 105 in which the Madras High Court interpreted Section 63 (e) of the Madras Hindu Religious and Charitable Endowments Act, 1959 (Act of 1959 for short ). It is similar to Section 57 (e) of the Act. In that case, the Madras High Court held that if the main claim was for emoluments and the incidetiltal claim was for right to an Office and both the questions were interlinked, the authorities concerned had jurisdiction to decide both the questions. The relevant portion of the judgment on which the Learned counsel relies reads: "the word 'emolument' has been defined in the Concise Oxford Dictionary as "profit from office or employment, salary". It is therefore clear that when Section 63 (e) of the Act speaks of a person being entitled by custom or otherwise to an emoluments in any religious institution and he seeks for relief in respect of such an emolument under Section 63 (e) before the Deputy commissioner and if his right to receive the emolument is disputed because it is urged by the opposite party that he is not the proper person entitled to the office which carries that emolument, it will be within the jurisdiction of the Deputy Commissioner to decide that right as a preliminary step before giving him the relief which he seeks in respect of the emoluments. In other words, when the right to the office and the right to the emoluments are both inter-linked, the Deputy Commissioner, while exercising jurisdiction regarding the right to the emoluments cannot refuse to exercise jurisdiction for deciding the right to the office which is a condition precedent to the applicant being entitled to the emoluments. " ( 8 ) FROM the ratio of the above judgment, it follows that if right to an office is an incidental question to the main claim for emoluments and if the former is disputed, the Deputy commissioner has the jurisdiction to decide both the questions. " ( 8 ) FROM the ratio of the above judgment, it follows that if right to an office is an incidental question to the main claim for emoluments and if the former is disputed, the Deputy commissioner has the jurisdiction to decide both the questions. ( 9 ) IT may be seen from the Judgment of this Court in Shamaraya's case, 1973 (2) K. L. J. 131 that the view that, under Section 57 (e) of the Act, the Deputy Commissioner had the power to decide the right to archakship, was taken after considering the Judgment of the Madras High Court on which the Learned Counsel, for respondents 1 and 2 relied. The Learned Counsel however, submitted that the ratio of the Judgment was not fully comprehended by this Court in shamaraya's case, 1973 (2) K. L. J. 131. ( 10 ) IN order to appreciate the contention, it is necessary to set out the provisions of Section 57 (e) of the Act. It reads : "57. Subject to the rights of suit or appeal hereinafter provided, the Deputy Commissioner shall have power to inquire into and decide the following disputes and matters :- xxx xxx xxx xxx (e) whether any person is entitled, by custom or otherwise to any honour, emolument or perquisite in any religious institution ; and what the established usage of a religious institution is in regard to any other matter ; xxx xxx xxx " ( 11 ) THIS Court has interpreted that right to emoluments is inseparable from right, to Office and therefore when a person claims emoluments in respect of an Office in a religious institution and the opposite party disputes the very right to hold office, both the questions can be decided by the deputy Commissioner. ( 12 ) IN our opinion, when a person asserts his right to archakship or right to emoluments and the opposite party disputes the claim, the authority has the power to decide whether he had right to office and if so what was the emoluments to which he was entitled to. This is the view taken in shamaraya's case, 1973 (2) KLJ 131. ( 13 ) FURTHER, it may be seen that Clause (e) of Section 57 provides that the Deputy Commissioner can also decide as to what the established usage of a religious institution is in regard to any other matter. This is the view taken in shamaraya's case, 1973 (2) KLJ 131. ( 13 ) FURTHER, it may be seen that Clause (e) of Section 57 provides that the Deputy Commissioner can also decide as to what the established usage of a religious institution is in regard to any other matter. Therefore, if the plea of the claimant in a given case is, having regard to the established usage, that the persons belonging to a particular group are entitled to perform pooja in the temple for a specific period, that would also fall within the scope of the words 'any other matter'. Therefore, in our view, the interpretation of Section 57 (e) by this Court in Shamaraya's case, 1973 (2) KLJ 131 promotes the smooth functioning of the Act in that the authorities functioning under the Act who have intimate knowledge and experience about the rights of the parties in the matter would decide the matter in the first instance and if any party is dissatisfied with the decision, he is given the right to file a suit under Section 62 of the Act and the Civil Court would have the benefit of the view of the authorities in deciding the dispute. It is also difficult to hold that the Legislature intended to have such dispute uncovered by the Act. The preamble and the provisions of the Act would indicate that the Act was designed to be a complete Code for regulating all the affairs of religious institutions. Hence, we find no valid ground to overrule the earlier decision of this Court in Shamaraya's case, 1973 (2) KLJ 131. In the result, we make the following order : order (i) The Writ Petitions are allowed ; and (ii) The order of the Commissioner for Religious and Charitable Endowments in Karnataka, bangalore, impugned herein, is set aside and the matter is remitted to the Commissioner for disposal of the Revision Petition presented by the respondents, in accordance with law on merits and in the light of this order.