Full Judgment Text
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PETITIONER:
SECRETARY, HOME (ENDOWMENTS), ANDHRA PRADESH
Vs.
RESPONDENT:
DIGYADARSAM RAJINDRA RAM DASJEE
DATE OF JUDGMENT:
03/05/1967
BENCH:
VAIDYIALINGAM, C.A.
BENCH:
VAIDYIALINGAM, C.A.
HIDAYATULLAH, M.
CITATION:
1968 AIR 105 1967 SCR (3) 891
CITATOR INFO :
RF 1970 SC 181 (2)
ACT:
Madras Hindu Religious and Charitable Endowments ’Act XIX of
1959, s. 53-respondent claiming to have succeeded as trustee
of Math in accordance with procedure under certain
agreements--other persons also raising disputes and claiming
succession-whether vacancy existed to enable exercise of
power by Commissioner under s. 53.
HEADNOTE:
After the death of the Mahant of Sri Swami Hathiramji Math,
Tirumalai, Tirupati, in 1947, an agreement was arrived at on
October 29, 1947 resolving certain disputes regarding the
succession to the office of Mahant and laying down a
procedure for choosing a successor when a vacancy arose.
Furthermore, the Akada Panchayat was constituted the supreme
authority in such matters. One C.D. became the Mahant in
1958. The respondent challenged the succession by a
declaratory suit but eventually there was a compromise and
in an agreement dated .July 15, 1961, it was agreed that
C.D. was entitled to continue as Mahant, and that after his
death the respondent would succeed him.
On the death of C.D. on March 18, 1962, the respondent
claimed to have succeeded as Mahant in his own right and the
Akada Panchayat approved the succession by a resolution on
the same date. However, the Commissioner Hindu Religious
and Charitable Endowments Andhra pradesh, having received a
telegram disputing the respondent’s claim, took- action
under s. 53 of the Madras Hindu Religious and Charitable
Endowments Act XIX of 1959 and assumed charge of the Math
and its property on March 24, 1964. The respondent
thereafter filed a suit for a declaration that he was the
rightful successor. He also filed a revision before the
Government challenging the action taken under S. 53
whereupon the Government stayed further proceedings and the
respondent therefore withdrew his suit. On June 5, 1962 the
Government issued an order stating that as there were
disputes about who was the rightful successor, until the
Civil Court decided this question, it was necessary to make
suitable arrangements for the proper administration of the
Math and its endowments; it therefore appointed the
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respondent as interim Mahant subject to various conditions
laid down in the order. in view of the respondent’s attitude
in the discharge of certain of his duties, on August 22,
1964, the Government passed an order directing him to show
cause why the previous order of June 5, 1962, should not he
cancelled. The respondent filed a Writ Petition against
this order claiming that he had succeeded to the office of
Mahant in his own right and that no action could be taken by
the Government under s. 53 other appointing him as interim
Mahant or cancelling such appointment-, the High Court
thereupon stayed further proceedings in pursuance of the
notice pending the disposal of the writ petition. The State
Government then passed a further order on September 9, 1965,
framing certain charge-, against the respondent, calling for
his explanations to them ’.Ind. at the same time, placing
him under suspension. The respondent filed a second writ
petition challenging this new order whereupon the earlier
writ petition was dismissed as infructious. The High Court
allowed the second writ petition.
892
It was condendcd on behalf of the appellant that (i) on
the death of C D. on March 18,1962, a vacancy occurred in
the of]fire of Mahant and there was a dispute between the
respondent and two other persons each of whom claimed the
right of succession; suits had been filed by each of those
two persons to establish their claims and ,tithough these
had been dismissed, an appeal was pending in respect of one
of them; view of this the necessary conditions existed for
invoking the power under s. 53 for the proper management of
the Math; furthermore, that inasmuch as the respondent had
been appointed to manage the institution by the department
under s. 53 of the Act, and, as he, was continuing in such
management by virtue of that appointment, the State had
ample jurisdiction to pass orders either of suspending or
even dismissing the respondent.
HELD: Dismissing the appeal;
The High Court had rightly held that ’there was no
jurisdiction for the exercise of the power under s. 53 of
the Act. (i) Before s. 53 can be invoked. two conditions are
necessary viz., (a) a vacancy must have occurred in the
office of the trustee of a Math; and (b) there must be a
dispute respecting the right of succession to such office.
In the present case although it. was possible to say that
there was a dispute resperting the right of succession to
the office of Mahant, the further condition that there must
be a vacancy could not be said to have existed and the High
Court had rightly accepted the claim of the respondent that
by virtue of the Panchayat agreement of October 29, 1947,
the compromise agreement of Julv 15, 1961, and the approval
given to his succeession by the Akada Panchayat. he had
succeeded as Mahant March 18, 1962, on the death of C.D.
1898 B-D. H]
(ii) If the respondent had succeeded as Mahant on the
death of C.D., in his own right. the mere circumsta’nce that
the Government also passed an order appointing him as
interim Mahant, later would not take away the right of the
respondent to function as Mahant. Once it is held that he
was not holding the office exclusively on the basis of the
order of the Government of June 5, 1962. it follows that the
appellant had no jurisdiction to. pass an order, placing the
respondent under suspension, as that virtually amounted 10.
a removal of the trustee of a Math which could only be done
in accordance with the provisions of s. 52 of the Act. [899
G-900 A]
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2586 of
966.
Appeals from the judgment dated November 17, 1966 of the
Andhra Pradesh High Court in Writ Petition No. 1589 of 1965.
P. Ram Reddy and A.V.V. Nab’, for the appellants.
1. V. Rangacharya, B. Parthasarathy and P.C. Bhartari.
for the respondent.
The Judgment of the Court was delivered by
Vaidialingam, J. This appeal, by certificate, is
directed against the order of the Andhra Pradesh High Court,
allowing a writ petition, filed by the respondent, under
Art. 226 of the Constitution.
The facts leading up to the filing of the Writ Petition,
by the respondent, may be briefly indicated. In respect of
Sri Swami Hathiramji Math. Tirumalai, Tirupati, disputes
arose regarding
89 3
the succession to the office of the Mahant of the Math,
after the death, in 1947, of the then Mahant, Prayag Dossji.
An agreement seems to have been arrived at, on October 29,
1947, laying ,town the procedure for choosing a successor to
the office of ’the Mahant, when a vacancy arises. The Akada
Panchayat appears to have been constituted the supreme
authority, in such matters. That agreement also provided,
as to who, among the respondent, and one Chetham Doss, was
to succeed to the office of the Mahant, on the death of one
Narayan Doss. Narayan Doss died on December 9, 1958, and
Chetham Doss succeeded as Mahant. The respondent filed O.
S. 84 of 1958, in the Subordinate Judge’s Court, Chittoor,
for a declaration that he is entitled to succeed to the
office of Mahant. The suit was resisted, by Chetam Dass, on
the basis that under the agreement of October 29, 1947, he
was legitimately entitled to succeed as Mahant. Sometime
later, the respondent and Chetam Dass, entered into a
compromise, by virtue of an agreement, dated July 15, 1961.
Both of theta agreed that Chetam Das was entitled to
continue as Mahant, and that, after his death, the
respondent was to succeed as Mahant. III view of this
agreement, the respondent got dismissed, as settled, O.S. 84
of 1958.
Chetam Dass died, on March 18, 1962, and the respondent
claims to have succeeded as Mahant, in his own right. But,
according to the appellant, the Commissioner H.R. & C.E.,
Andhra Pradesh, received telegram stating that there was a
dispute about the person who was to succeed as Mahant. The,
Assistant Commissioner, H.R. & C.E., took action, under s.
53 of the Madras Hindu Religious & Charitable Endowments
Act, 1951 (Act XIX of 1951). (hereinafter called the Act),
which is applicable to the State of Andhra Pradesh, and
assumed charge, on March 24. 1962, of the Math and its
properties. The respondent filed. on March 26, 1962, O.S.
24 of 1962, for a declaration that he is the rightful
successor to the office of the Mahant of the Institution, in
question. The Commissioner, H.R. & C.E., was made a party
to the suit. The respondent also filed a revision, before
the Government, on April 18, 1962, challenging the assuming
charge of the Math, under s. 53 of the Act, by the Assistant
Commissioner. The Government stayed further proceedings;
and, in consequence, O.S. 24 of 1962, was withdrawn, by the
respondent, on April 24, 1962. The Government also passed
an order, on June 5, 1962, stating that it was necessary to
take action, for making suitable arrangements for the proper
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administration of the Math and its endowments, till the
civil court decided as to who should succeed to the office
of the Mahant. In this connection, the State Government
referred to an objection, received, from one Devendra Dass,
stating that he is the proper person entitled to succeed to
the office of the Mahant. Ultimately, by the said order,
the Government appointed the respondent, as an
894
interim Mahant, subject to the various conditions, laid down
therein. Devendra Dass filed writ petition No. 602 of 1962,
on June 21, 1962, in the High Court, challenging this order
of the State Government dated June 5, 1962. That writ
petition was, dismissed on August 27, 1962. In the
meanwhile, Devendra Dass, who was a minor, had instituted
two suits, O.S. Nos. 50 of 1962 and 57 of 1962, to declare
him as the person entitled to succeed to the office of the
Mahant, on the death of Chetam Dass. In the first suit he
was represented, by one Mukundd Dos!,, as next friend, and
in the second suit he was represented by one Bhagwant Doss,
as the next friend. When Devendra Doss attained majority,
later on, he preferred to continue O.S. 50 of 1962. and
therefore O.S. 57 of 1962 was dismissed, as unnecessary.
On August 22, 1964, the Government passed an order, direct-
ing the respondent to show cause why its previous order,
dated June 5, 1962, appointing the respondent, as interim
Mahant, should not be cancelled. This appears to have been
issued, by the State Government, in view of the fact that
the respondent was taking a particular attitude regarding
the pada kanikkas received by him. In the said order, the
Government also proceeded, on the basis that it has no
jurisdiction to appoint an interim Mahant when action is
taken, under s. 53 of the Act.
On receipt of this notice, the respondent filed writ
petition No. 1534 of 1964, challenging the said order. His
claim appears to have been that he had succeeded to the
office of Mahant. in his own right, after the death of
Chetam Dass, and that no action can be taken, under s. 53 of
the Act, and therefore, the question of the Government,
either appointing him as interim Mahant. or taking any
action to cancel such an order, does not arise. It is seen
that further proceedings, in pursuance of the notice, issued
by the Government, were stayed, by the High Court, pending
the disposal of the writ petition. The State Government
passed an order, on September 9, 1965, framing certain
charges, as against the respondent, and directing him to
furnish his explanation. regarding the same, and, at the
same time, placed him under suspension. The respondent
filed, writ petition no. 1589 of 1965. challenging this
order of the Government, placing him under suspension. In
view of this writ petition, the earlier writ petition. no.
1534 of 1.964, was dismissed, as infructuous, on April 14.
1966.
In the meanwhile, Bhagwant Doss, who had originally
instituted O.S. no. 57 of 1962, as the next friend of
Devendra Dass, and which suit was got dismissed by the
minor, after attaining majority, instituted another suit,
O.S. no. 69 of 1965 on September 29. 1965, claiming in his
own right to be the person entitled to succeed to the office
of Mahant. This suit appears to be still pend-
89 5
ing. But O.S. 50 of 1962, which was decided to be
continued, by Devendra Doss, was contested by the respondent
and, ultimately, dismissed, on April 28, 1966. It is stated
that an appeal., A.S. No. 476 of 1966, has been filed, on
November 17, 1966. against this decree and it is still
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pending.
The main contention, taken by the respondent, in writ peti-
tion no. 1589 of 1965, was that he had already in law
succeeded as Mahant, on March 18, 1962, when the presiding
Mahant, Chetam Doss, died. Therefore, according to him,
there was no vacancy which can be aid to have occurred, in
the office of the trustee of the Math, so as to give
jurisdiction to the Assistant Commissioner, or the
Commissioner, H.R. & C.E., to take action, under S. 53 of
the Act. The respondent also relied upon the circumstance
that the suit filed by Devendra Doss, O.S. 50 of 1962, had
been dismissed and the Court had accepted his title to hold
the office of the Mahant, on the basis of the Panchayat
Agreement, dated October 29, 1947, as well as the agreement,
dated July 15, 1961, entered into between him and the then
Mahant, Chetam Dass. The respondent also relied upon the
circumstance that his assumption of office, as Mahant, on
the death of Chetam Dass, has been approved, on March 18,
1962, by the supreme authority, namely, the Akada Panchayat.
The appellant resisted the claim of the respondent., on the
,,round that when Chetam Doss died, and the respondent
attempted to take charge as Mahant, a claim was made, by one
Devendra Doss, that he was the person, lawfully entitled to
succeed to the office of the Mahant. On the death of Chetam
Doss, on March 18, 1962, a vacancy occurred, in the office
of the trustee of the nath, and there is also a dispute,
between the respondent and Devendra Doss, regarding the
right of succession to such office. In view of the fact
that the necessary conditions, for invoking s. 53 exist, the
assumption of management of the Math was taken over, by the
Assistant Commissioner, H.R. & C.E., for the proper
management of the institution. It was also pointed out that
the suit instituted, by Bhagwant Doss, O.S. no. 69 of 1965,
claiming in himself the right to succeed, as a trustee, was
still pending and that also shows there is a dispute,
regarding succession to the office of the- trustee. The
appellant has also urged, that in any event, inasmuch as the
respondent has been appointed, to manage the institution, by
the department, under s. 53 of the Act, and. as he was
continuing in such management by virtue of such appointment,
the State had ample jurisdiction to pass orders either of
suspending, or even dismissing the respondent.
The learned Judges of the High Court have held that the res-
pondent has succeeded as Mahant, on March 18, 1962, on the
death of Chetam Dass, by virtue of the Panchayat Agreement,
of October 29. 1947, and the compromise agreement, dated
July 15,
896
1961. Therefore, it Cannot be said that there was any
vacancy in the office of the trustee of the Math, so as to
enable the appellant to take action, under s. 53 of the Act.
The High Court has, in this connection, referred to the
findings recorded, by the Subordinate Judge’s Court, in
favour of the respondent, in O.S. 50 of 1962. The mere
circumstance that after a person has succeeded to the office
of the trustee, other people lay claims to that office, and
institute litigation for that purpose, will not, according
to the High Court, give jurisdiction to the appellants to
take action, under s. 53 of the Act. The High Court is
further of the view that the appellant’s action, in placing
the respondent under suspension, is contrary to the
directions given by the High Court, on April 9, 1965,
pending the disposal of the writ petition. The High Court
is further of the view that the stand, taken by the
appellants, is quite contrary to the earlier stand, taken in
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their order, dated June 5, 1962, wherein they had
categorically stated that the civil Court’s decision will be
conclusive and final, regardin- the succession to the office
of the Mahant. This reason, is given by the High Court, as
it was of the view that the appellant should give due
respect to the decision, in O.S. 50 of 1962. On these
grounds the High Court quashed the order passed, by the
State Government, dated September 9, 1966, placing the peti-
tioner, under suspension.
Mr. Rain Reddy, learned counsel appearing for the
appellants. has raised the same contentions that were taken,
before the High Court. In addition, counsel has also
pointed out that the decision, in O.S. 50 of 1962, has not
become final, inasmuch as Devendra Doss, who lost that
litigation, has filed A.S. No. 476 of 1966, which is still
pending. Counsel further points out that, in view of the
dispute raised, by Devendra Doss, by making a claim for the
trusteeship or the Math, before the Government the writ
petition, No. 602 of 1962, filed by the said party, Lis well
as the various suits, referred to above, will clearly show
that there is a dispute regarding the succession to the
office of the trustee of the Math. when a vacancy occurred,
on the death of Chetam Dass, on March 18, 1962. Therefore,
action taken by the appellant, in the interests of the
institution, was perfectly valid. Counsel also urged that
inasmuch as the respondent is functioning as Manager of the
institution, by virtue of his appointment, on June 5, 1962,
by the Government, subject to the conditions mentioned
therein, the Government was competent to take disciplinary
action, as against the respondent, for breach of those
conditions.
Mr. 1. V. Rangacharya, learned counsel for the respondent,
of Lilly supports the reasons, given by the learned Judges
of the High Court, for accepting the claim made by his
client, in the writ petition.
897
The short question, that arises, for .consideration, is
as to whether the Assistant Commissioner, H.R. & C.E., had
jurisdiction to assume management of the Math, in question,
under s. 53 of the Act. That will depend on the further
question as to whether the State Government had jurisdiction
to place the respondent, under suspension, as they have
purported to do, ’by their order. dated September 9. 1965.
The answer to the above question is to be decided, by
reference to s. 53 of the Act. Section 53 of the Act.
occurs in ’Chapter IV, relating to Maths. Sub-s. (1) of
that Section enables the commissioner or any two or more’
persons having interest and having obtained the consent, in
writing, of the Commissioner, to institute a suit to obtain
a decree for removing the trustee of ,a math or a
specific endowment attached to a math, for any one or more
of the grounds mentioned in cls. (a) to (f) therein.
Section 53, which is the material section, and which relates
to filling of vacancies, is as follows:
"53. (1) When a vacancy occurs in the office of the
trustee of a math or specific endowment attached to a math
and there is a dispute respecting the right of succession to
such office or,
when such vacancy cannot be filled up immediately or
when the 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 the trustee is by reason of unsoundness of mind
or other mental or physical defect or infirmity unable to
discharge the functions of the trustee,
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the Assistant Commissioner may take such steps and pass
such order as he thinks proper for the temporary custody and
protection of the endowments of the’ math or of the specific
endowment, as the case may be, and shall report the matter
forthwith to the Commissioner.
(2) Upon the receipt of such report, if the
Commissioner, after making such inquiry as he deems
necessary. is satisfied that an arrangement for the
administration of the math and its endowments or of the
specific’ endowment, as ’the case may be, is necessary, he
shall make such arrangement as he thinks fit until the
disability of the trustee ceases or another trustee succeeds
to the office, as the case may be.
(3) In making any such arrangement, the Commissioner
shall have due regard to the claims of the’ disciples of
the math, if any.
898
(4) Nothing in this section shall be deemed to affect
anything contained in the Madras Court of Wards Act, 1902."
Section 53(1) contemplates four contingencies, under which
the Assistant Commissioner may take steps for the temporary
,custody and protection of the math. We are concerned, in
this case, only with the first contingency, referred to in
that subsection. Before that provision can be invoked, two
conditions are necessary, viz., (a) a vacancy must have
occurred, in the office of the trustee of a math; and (b)
there must be a dispute, respecting the right of succession,
to such office. In this case, it is possible to say, in
view of the claim made by Devendra Das. and the litigations
referred to, above, that there was a dispute Tespecting the
right of succession to the office of the Mahant. But in
order to give jurisdiction to the appellant to take action,
tinder the first contingency, referred to in sub-s. (1) of
s. 53, the two conditions adverted to above, will have to
exist. In this case, it is the claim of the appellant that
there was a vacancy, in the -office of the trustee of the
Math, on March 18, 1962, when Chetan Das died. On the other
hand, according to the resPondent, there was no vacancy in
the office of the Mahant, it that time, because, on the
death of Chetan Das, the respondent succeeded to the office
of the Mahant. Therefore, the point to be considered is, as
to whether a vacancy has occurred, in the office of the
trustee of the Math, on March 18, 1962. That there must be
an actual vacancy, unfilled, is clear, from the wording of
s. 53(1), when it deals with two different contingencies.
providing for the assumption of management. Under the first
contingency, a vacancy should have occurred in the office of
a trustee of a Math, and there is a dispute in respect of
the succession to such office. That is, the office has not
been filled in. by anybody having a prima facie legal, right
to assume management. Similarly, the second contingency,
contemplated unders. 53(1), when assumption of management
can be made by the Department, is when a vacancy occurs in
the office of a trustee of a Math and when such vacancy
cannot be filled up immediately. This clearly shows that
there must be a vacancy, as I fact, in the sense that nobody
with any legal right has assumed Office of the trustee of a
Math.
In this case, as we have pointed out earlier, the High Court
has accepted the claim of the respondent that by virtue of
the Panchayat agreement dated October 29, 1947, and the
compromise agreement, dated July 1.5, 1961, the respondent
has succeeded to the office of the trustee of the Math, on
March 18, 1962, on the death of Chetan Das. The supreme
authority. according to the High Court, the Akada Panchayat,
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has also
899
approved of the said appointment, by resolution of the same
date. We do not propose to consider the findings recorded
in O.S. 50 of 1962, which are no doubt in favour of the
respondent, because that decision is the subject of an
appeal, in A.S. no. 476 of 1966. Nor do we propose to
consider the claim of Bhagwant Doss in O.S. 69 of 1965,
which is still pending adjudication, at the hands of the
Court. But even without reference to those litigations, the
view of the High Court that there is no vacancy in the
office of the trustee of the Math which alone will give
jurisdiction to the appellant to take action under s. 53(1),
can be accepted its correct, for the other reasons,
mentioned by us, earlier.
Mr. Ram Reddy, learned counsel for the appellants, further
points out that, in this case, the respondent is in
management or the Math, by virtue of the appointment made,
by the State Government, on June 5, 1962, and therefore the
State Government is entitled to take disciplinary action
against him for breach of conditions, under which he was
holding that office. Counsel also united our attention to
the averments made by the respondent himself, in Writ
Petition No. 602 of 1962, that the State Government has
appointed him as interim Mahant. The stand taken by the
respondent, in writ petition no. 602 of 1962, cannot assist
the appellant, because he was interested then in fighting
the claim made by Devendra Dass, in the said writ petition.
In resisting such claim, he has, no doubt, made reference to
the fact that his right to function, as Mahant, cannot be
disturbed, as the State Government has appointed him a-,;
interim mahant. Therefore, the stand taken by the
respondent, in the said writ petition, must be understood in
the said context.
No doubt, normally, if it is established that the
respondent’s only right to function as Manager of this
institution, is exclusively on the basis of the Government
order, dated June 5, 1962, there will be considerable force
in the contention of learned counsel for the appellant that
the State Government has got jurisdiction to take
disciplinary action, against the respondent. But ’the facts
in this case show that the position is entirely different.
If the respondent, as held by the High Court-with which view
we are in agreement has succeeded to the office of the
trustee of the Math, on the death of Chetam Dass, on March
18, 1962, in hi,-; own right, the mere circumstance that the
Government also passe,; an order appointing him as interim
Mahant, or Manager, later, will not take away the right of
the respondent to function as trustee. on the basis of his
original right. Once it is held that the respondent is not
holding the office of the Mahant, exclusively on the basis
of the order of the Government, dated June 5. 1962, it
follows that the appellant has no jurisdiction to pass an
order, placing the respondent under suspension, as that
virtually amounts to a removal of the trustee of a Math.
The removal of
900
trustee of a Math can be done only in the manner, and in the
circumstances, mentioned in S. 52 of the Act. Therefore,
the view of the High Court that the order of the Government,
placing the respondent Linder suspension, is not valid, is
correct.
The result is, that the appeal fails, and is dismissed. In
the Circumstances of the case, there will be no order as to
costs.
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R.K.P.S.
Appeal dismissed
901