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2003 DIGILAW 171 (KAR)

M. SRIPATHI SAMPIGETHAYA v. P. SEETHARAM BHAT

2003-02-19

H.RANGAVITTALACHAR

body2003
H. RANGAVITTALACHAR, J. ( 1 ) PETITIONER has challenged the order of the Commissioner for religious and Charitable Endowments on the ground of maintainability of appeal in this petition under Article 226 of the constitution of India. ( 2 ) FACTS of the case: the writ petitioners father Sri Harishchandra Sampigethaya was appointed as a hereditary trustee of the temple Ballamanja Sri anantheshwara Temple" situate at Belthangady Taluk, D. K. District, in the year 1955. Harishchandra Sampigethaya died in the year 1970. Since the Temple was governed by the provisions of the madras Hindu Religious and Charitable Endowments Act, 1951 (hereinafter referred to as the Act for brevity), proceedings were initiated under the provisions of the said Act for appointing the next hereditary trustee and by an order dated 4. 8. 1970, the Deputy commissioner appointed the petitioner as the hereditary trustee vide Annexure D. While the petitioner was so functioning the 1st respondent to this Writ Petition also made a rival claim for the hereditary trusteeship by making an application. The application was treated as one filed under Section 57 (b) of the Act, and the Deputy commissioner allowed the application by his order dated 13. 7. 1998 - Annexure E. Petitioner, aggrieved by the said order, preferred an appeal before the Commissioner for Religious and Charitable endowments - 2nd respondent herein. The appeal came to be allowed by the order dated 23. 6. 2001 - Annexure F, by setting aside the appointment of the 1st respondent as the hereditary trustee; meanwhile, petitioner had sought for issuing a copy of the original order dated 4. 8. 1970 appointing him as hereditary trustee. This application by mistake was treated as an application filed under section 47 (1) of the Act, and the Deputy Commissioner invited objections from all the family members to inquest in to the claim of the petitioner. The 1st respondent herein got impleaded before the deputy Commissioner, while the matter was being inquired into. The Deputy Commissioner by his order dated 22. 1. 2001, - Annexure k, confirmed his earlier order dated 19. 7. 2000, by holding petitioner as the hereditary trustee. Against the said order, the 1st respondent preferred an appeal before the 2nd respondent herein - commissioner for Endowments. The Deputy Commissioner by his order dated 22. 1. 2001, - Annexure k, confirmed his earlier order dated 19. 7. 2000, by holding petitioner as the hereditary trustee. Against the said order, the 1st respondent preferred an appeal before the 2nd respondent herein - commissioner for Endowments. Though the petitioner had questioned the maintainability of appeal filed by the 1st respondent, the 2nd respondent over ruling the said objection has allowed the appeal and has appointed a Committee of Management by removing the petitioner from the post of hereditary trustee - Annexure A. This order is questioned in this Writ Petition. ( 3 ) THE main contention of the writ petitioner is that the appeal filed by 1st respondent was not maintainable in as much as the commissioner could not have entertained the appeal filed by 1st respondent. He has therefore prayed for setting aside the order. The 1st respondent has filed a detailed statement of objection stating that the petitioner is having an alternative remedy of filing a civil Suit against the order appointing the Committee of management, that the appeal before the Commissioner was perfectly competent having regard to the fact that the Deputy commissioner has made an enquiry and passed orders under section 57 (b) of the Act. Besides, 1st respondent has already filed a Civil Suit in OS 115/2001 against the orders passed by 2nd respondent. ( 4 ) HEARD Sri Ashok Haranhalli for the petitioner and Sri Krishna bhat, Counsel for the 1st respondent. The only question that arises for consideration in this petition is whether the appeal filed by the 1st respondent under Section 61 of the Act against the orders of the Deputy Commissioner vide annexure F was maintainable. ( 5 ) IN order to decide the said question, the relevant provisions of the Act are referred to and extracted wherever found necessary. The Temple in question is situate at Dakshina Kannada District which was a part of the then State of Madras, and now integrated to State of Karnataka. The parties were governed by the Madras hindu Religious and Charitable Endowments Act, 1951. ( 6 ) UNDER the scheme of the endowments Act, the management of a temple governed by the provisions of the Act is undertaken while the Commissioner retains the overall supervision by an Area committee or Trustees or a Hereditary Trustee. The parties were governed by the Madras hindu Religious and Charitable Endowments Act, 1951. ( 6 ) UNDER the scheme of the endowments Act, the management of a temple governed by the provisions of the Act is undertaken while the Commissioner retains the overall supervision by an Area committee or Trustees or a Hereditary Trustee. The power to constitute an Area Committee is vested in the Government under section 12 of the Act, and its jurisdiction is also stated in Section 12 and other Sections. By Section 41 of the Act, the Area committee and the Commissioner have both been given powers to appoint trustees in respect of a temple subject to the provisions of section 39. Under Section 39 of the Act, if in a case where the area Committee has no jurisdiction over the temple or where there is no hereditary trustee, the Commissioner is given the power to appoint a Board of Trustees. Under Section 39 (2) of the Act, even in cases where a hereditary trustee is functioning, if the commissioner is satisfied that the hereditary trustee is not managing the institution properly, he may appoint non-hereditary trustees for managing the affairs. ( 7 ) IN so far as hereditary trustee is concerned, under Section 47 (1), when a permanent vacancy occurs in the office of a hereditary trustee, the next in line of succession to the last holder of office is entitled to succeed to the office. In case there is a dispute as to who should succeed to the office, the same has to be inquired and decided by the Deputy Commissioner under Section 47 (3) of the act. The person aggrieved by the order under Section 47 has a right of appeal to the Commissioner. Section 47 which is relevant and has a bearing to the points in controversy is extracted herein for ready reference. ( 8 ) SECTION 47: (1) When a permanent vacancy occurs in the office of the hereditary trustee of a religious institution, the next in the line of succession shall be entitled to succeed to the office. Section 47 which is relevant and has a bearing to the points in controversy is extracted herein for ready reference. ( 8 ) SECTION 47: (1) When a permanent vacancy occurs in the office of the hereditary trustee of a religious institution, the next in the line of succession shall be entitled to succeed to the office. (2) When a temporary vacancy occurs in such an office by reason of the suspension of the hereditary trustee under Section 45, sub-section (1), or by reason of his suppression under Section 46, sub-section (3), the next in the line of succession shall be entitled to succeed and discharge the functions of the trustee until his disability ceases. (3) When a permanent or temporary vacancy occurs in such an office and there is a dispute respecting the right of succession to the office or when such vacancy cannot be filled up immediately, or when a hereditary trustee is a minor and has no guardian fit and willing to act as such or there is a dispute respecting the person who is entitled to act as guardian, or when a hereditary trustee is by reason of unsoundness of mind or other physical defect or infirmity unfit for discharging the functions of the trustee. ( 9 ) THE Deputy Commissioner may appoint a fit person to discharge the functions of the trustee of the institution until the disability of the hereditary trustee ceases or another hereditary trustee succeeds to the office or for such shorter term as the Deputy Commissioner may direct. Explanation: In making any appointment under this sub-section, the Deputy Commissioner shall have due regard to the claims of members of the family, if any, entitled to the succession. (4) Any person affected by an order of the Deputy Commissioner under sub-section (3) may, within one month from the date of the receipt of the order by him, appeal against the order to the Commissioner. ( 10 ) AN analysis of Section 47 (4) shows that the appellate authority to hear and decide the appeal is the Commissioner for Religious and Charitable Endowments. The person who has a right of appeal is one who is dissatisfied with an order passed under Section 47 (3) i. e. , to say a rival claimant to the office of the hereditary trusteeship. The person who has a right of appeal is one who is dissatisfied with an order passed under Section 47 (3) i. e. , to say a rival claimant to the office of the hereditary trusteeship. " (underlined by me) which necessarily means that a non-rival claimant or a person who is not in the line of succession of the last holder of office i. e, a stranger has no right to question the appointment of a person to the post of a hereditary trusteeship. In the facts of the present case, the contesting respondent - p. Seetharama Bhat admittedly is not a rival claimant to the office of hereditary trusteeship nor claims to be a person in the line of succession of the last holder of office. In other words, he is a stranger to the claim for the post of hereditary trusteeship. He therefore, is not a person who can be said to be affected by the order of the Deputy Commissioner passed under Annexure K. His appeal therefore, to the Commissioner, was incompetent. In other words, the Commissioner had no jurisdiction to hear and decide an appeal filed by a person not affected by the order under Section 47 (3 ). The appellate authoritys order therefore, is liable to be quashed as being without jurisdiction. ( 11 ) BUT Sri Krishna Bhat, learned Counsel for 1st respondent contended that the nature of enquiry conducted by the Deputy commissioner in the order at Annexure K is only referable to an enquiry contemplated under Section 57 (b) of the Act to which enquiry the contesting respondent had a right to participate and any order passed in such an enquiry is appealable by the party aggrieved. ( 12 ) IN order to appreciate the said argument, Section 57 (1) and (b) are also extracted omitting other clauses as being unnecessary. Section 57 to Section 62 occurs under the Chapter of inquiries in Chapter V Section 57 reads as under: 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. (a ). . . . . . (b) whether a trustee holds or held office as a hereditary trustee. (a ). . . . . . (b) whether a trustee holds or held office as a hereditary trustee. A reading of Section 57 (b) strongly relied by the learned Counsel sri Krishna Bhat, clearly shows that whenever a trustee makes a claim that he is a hereditary trustee or at some point of time earlier was holding a post of a hereditary trustee and if the same is disputed, that has to be resolved by the Deputy Commissioner. Clause (b) of Section 57 therefore, presupposes that the disputant must already be appointed or holder of the office of trusteeship. In other words, if a person is not a trustee, and he makes a claim to the office of hereditary trusteeship, such a claim or dispute necessarily gets excluded from the operation of the said clause. The holding of office of trusteeship is a sine quo non for the operation of Section 57 (b ). In a case where a person makes a claim to the office of the hereditary trusteeship claiming on the basis that he is in the line of succession to the last holder of office, and if such a claim is disputed, it is Section 47 (3) which has application, not Section 57 (b ). The dispute under Section 47 (3) cannot be confused with a dispute stated in Section 57 (b ). Each one operates in a different field and in different situations. It is a cardinal principle of interpretation of statutes that every part of a statute must be interpreted as to give meaning and as to avoid such interpretation which makes one section or part of statute nugatory or otiose. Therefore, contention of learned Counsel for the contesting respondent has no merit. ( 13 ) IN the light of the discussions made above, the contention of the petitioner deserves to be accepted. The order passed by the commissioner for Charitable Endowments vide Annexure A being without jurisdiction, is liable to be quashed and is quashed. Petition is allowed. --- *** --- .