IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF FEBRUARY 2019 Before The Hon’ble mr. Justice B.M. Shyam Prasad Miscellaneous First Appeal No.7470 Of 2018 (res) Between:
DR. M. SUNIL HEGDE SON OF LATE SRI M. BALAKRISHNA HEGDE AGED ABOUT 63 YEARS MOMBETTU POST, HIRIYADKA UDUPI TALUK AND DISTRICT – 576 101.
... APPELLANT (BY SRI. ASHOK HARANAHALLI, SENIOR ADVOCATE FOR SRI. SUBRAMANYA R., ADVOCATE) And:
1. STATE OF KARNATAKA MUZARAI DEPARTMENT DR. B.R. AMBEDKAR VEEDHI BENGALURU – 560 001 REPRESENTED BY ITS PRINCIPAL SECRETARY.
2. RAJYA DHARMIKA PARISHATH HINDU RELIGIOUS INSTITUTIONS & CHARITABLE ENDOWMENTS 2ND FLOOR, SRI. MINTO ANJENYA BAHVAN ALURU VENKATA RAO ROAD CHAMARAJPETE BENGALURU – 560 019 REPRESENTED BY ITS SECRETARY.
3. THE COMMISSIONER HINDU RELIGIOUS INSTITUTIONS & CHARITABLE ENDOWMENTS 2ND FLOOR, SRI. MINTO ANJENYA BHAVAN ALURU VENKATA RAO ROAD CHAMARAJPETE BENGALURU – 560 019.
4. THE DEPUTY COMMISSIONER UDUPI DISTRICT UDUPI – 576 104.
5. THE ASSISTANT COMMISSIONER UDUPI SUB-DIVISION UDUPI DISTRICT UDUPI – 576 104.
6. SRI VEERABHADRA TEMPLE HIRIYADKA BOMMARABETTU VILALGE UDUPI TALUK AND DISTRICT – 576 101 REPRESENTED BY ITS EXECUTIVE OFFICER/ADMINISTRATOR.
7. SRI M. GOVARDHAN DAS HEGDE SON OF B. VITTAL HEGDE AGED ABOUT 79 YEARS RESIDING AT MOMBETTU HOUSE HIRIYADKA POST UDUPI TALUK AND DISTRICT – 576 101.
8. SRI. HARSHAVARDHAN HEGDE SON OF NARAYANA HEGDE AGED MAJOR RESIDENT OF CHERKADI VILLAGE UDUPI TALUK AND DISTRICT – 576 101.
... RESPONDENTS (BY SRI. H. SUBRAMANYA JOIS, SENIOR ADVOCATE FOR SRI. K.C. SANTHAKUMAR, ADVOCATE FOR C/R-7 AND R-8) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 63-A(1) OF THE KARNATAKA HINDU RELIGIOUS CHARITABLE ENDOWMENTS ACT, 1997 PRAYING TO SET ASIDE THE PROCEEDINGS OF THE 2ND RESPONDENT - RAJYA DHARMIKA PARISHATH HELD IN ITS 14TH MEETING DATED 23.03.2018 AND CONSEQUENTLY SET – ASIDE THE ORDER PASSED BY THE 3RD RESPONDENT – COMMISSIONER, RAJYA DHARMIKA PARISHATH, BENGALURU, DATED 26.03.2018 IN IMPLEMENTING THE DECISION OF THE RAJYA DHARMIKA PARISHATH.
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD AND RESERVED ON 06.12.2018 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment The appellant has impugned the decision taken by the Rajya Dharmika Parishat – an authority constituted under the provisions of Section 20 of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 (for short, 'Act of 1997') and hereinafter referred to as the 'Dharmika Parishat' - on 23.3.2018 in its 14th Meeting, and the consequential Order dated 26.3.2018 by the Commissioner, Hindu Religious Institutions & Charitable Endowments (for short, the 'Commissioner for HRI & CE). By these impugned decision/order the respondent No.7 is appointed as the Hereditary Trustee and the respondent No.8 is appointed as the successor to the office of the Hereditary Trustee of the Temple, Sri. Mahatobara Veerabhadra Temple situated at Hiriyadaka, Bommarabettu Village, Udupi Taluk – respondent No. 6.
.
2. The appeal arises in the background of the following facts and circumstances as pleaded and canvassed in this appeal:
2.1 Sri Mahatobara Veerabhadreshwara Temple was declared as an 'Excepted Temple' (hereafter referred to as the ‘Temple’] under the provisions of the Madras Hindu Religious Endowments Act, 1927 (for short, 'Act of 1927'). The Temple was managed by the hereditary trustees, and these trustees were from ‘Alva Hegde’ and ‘Kurla Hegde’ families. The "Kurla Hegde" family has three branches viz., (i) Vonthibettu, (ii) Anjaru Beedu and (iii) Mombettu, and the ‘Alva Hegde’ family has four branches viz., (i) Padambeedu Padupalu, (ii) Padambeedu Mudupalu, (iii) Padambeedu Kallubettu and (iv) Padambeedu Kapyadi. The respondent No. 7 is from the Mombettu branch of the ‘Kurla Hegde’ family, and the respondent No.8 is from the Padambeedu Padupalu branch of the ‘Alva Hegde’ family.
2.2 The members of these family have been agitating over the years inter alia as regards the questions who should be the Hereditary Trustee/s, who, as a 'Fit Person', should be managing the affairs of the Temple until the declaration of Hereditary Trustee/s, whether only “Kurla Hegde” family is entitled to the office of the ‘Hereditary Managing Trustee/Trustee” and whether the members of the ‘Alva Hegde’ family have abandoned or lost their right to be appointed to the office of the ‘Hereditary Trustee’. The multiple litigations amongst the members of these families could broadly be classified as (a) disputes ensuing from the declaration of Sri. Vittal Hegde from the 'Alva Hegde' family as a Hereditary Trustee and (b) disputes resulting from the appointment of a ‘Fit Person’ after the demise of Sri. Balakrishna Hegde from the 'Kurla Hegde' in the year 2009. A 'Fit Person' is appointed as a temporary measure until the declaration/ appointment to the office of the Hereditary Trustee is made.
2.3 Sri Vittal Hegde from the 'Alva Hegde' family was declared as the ‘Hereditary Trustee’ vide the Order dated 02.7.1990. Sri Balakrishna Hegde from the 'Kurla Hegde' family disputed such appointment in an appeal before the Commissioner for HRI & CE. This appeal was dismissed by the Commissioner for HRI & CE by his order dated 4.2.1991. Sri Balakrishna Hegde impugned these two orders before the Karnataka Appellate Tribunal in a revision petition. The Karnataka Appellate Tribunal allowed the revision petition and quashed the order dated 2.7.1990. Sri Vittal Hegde impugned the order of the Karnataka Appellate Tribunal before the High Court of Karnataka in a writ petition in W.P.No.41041/1995. This writ petition was disposed of by the writ court holding that the revision petition could not have been entertained by the Karnataka Appellate Tribunal, and any person aggrieved by the order of the Commissioner for HRI & CE ought to have approached the appropriate Civil Court.
2.4 Sri Balakrishna Hegde commenced the suit in O.S.No.101/1996 seeking inter alia declaration that he was entitled to function as Hereditary Managing Trustee/Trustee of the Temple and for declaration that Alva Hegde family represented by Sri Vittal Hegde had no right to function as Hereditary Trustee/s. After the demise of Sri. Balakrishna Hegde, his legal representatives, including the appellant, came on record as plaintiffs. However, these legal representatives filed separate applications to be transposed as defendants.
These applications were allowed, and later the suit in O.S.No.101/1996 was dismissed on 14.12.2016.
2.5 Insofar as the appellant, who is one of the sons of Sri. Balakrishna Hegde from the 'Kurla Hegde' family and who was on record as plaintiff 1(b), an application (I.A.18) was filed for transposition as one of the defendants. This application was not supported by the appellant's affidavit but was supported by a memorandum of facts filed by the appellant's counsel. It was stated in such memorandum of facts that there was conflict of interest between the appellant and the other plaintiff/s, and because of such conflict of interest, the appellant must be permitted to transpose himself as one of the defendants1. This application was allowed by the learned Civil Court by its order dated 2.1.2016. Later the appellant filed an application (I.A.
1 There is some confusion about the date of the order. The learned Civil in the first part of the order has referred to the date as 2.1.2016 and in the latter part of the order has referred the date of order as 2.1.2015. However, from the sequence of events as 20) seeking review of the earlier order. The appellant contended that the application for his transposition was filed by his counsel without his instructions, the appellant had not entered into any compromise and because of the subsequent dismissal of the suit as a consequence of transposition of even his younger brother as a defendant, the questions raised about the entitlement to the hereditary trusteeship had remained without adjudication. The questions relating to appointment under hereditary trusteeship was to be decided only by the Civil Court. The learned Civil Court dismissed such application I.A. No. 20 in its order dated 10.11.2016 on the ground that it was filed beyond the prescribed limitation period as well as on the ground that the order did not suffer from any error apparent on the face of the record. Further, the learned Civil Court concluded that the application (I.A.20) was not obviously discernable from the order sheet, the orders on I.A. No. 18 appears to be on 2.1.2016.
maintainable as the suit itself was disposed of. The appellant did not call in question this order on I.A. No.20.
2.6 The appellant, however, has instituted the later suit in O.S. No. 297/2018 on the file of the principal civil judge (junior division) and JMFC, at Udupi. The appellant has inter alia sought for declaration of the appellant as the Hereditary Managing Trustee/Trustee of the Temple and for declaration that the members of the 'Alva Hegde' family, who have lost such right by abandonment, have no right to function as Hereditary Managing Trustee/Trustee of the Temple. This suit in O.S. No. 297/2018 is filed on 7.4.2018. But, the impugned proceedings and order are prior to the date of the institution of the suit.
2.7 The appellant's father, Sri Balakrishna Hegde (from the 'Kurla Hegde' family), who was appointed a ‘Fit Person’ vide the order dated 16.2.1971 after the demise of Sri. Jagjeevan Alva (from the Anjaru Beedu branch of the ‘Kurla Hegde‘ family), continued to function as a ‘Fit Person’ looking after the affairs of the Temple until his demise on 28.3.2009. However, after his demise, because of counter claims even as regards the appointment of the 'Fit Person', the Executive Officer of Sri Mookambika Temple was appointed as the Administrator vide the order dated 3.6.2009, and the Executive Officer of Mookambika Temple is continuing to function as the administrator of the Temple.
2.8 After the demise of Sri Balakrishna Hegde on 28.3.2009, the appellant was appointed as the 'Fit Person'. However, his appointment was revoked and therefore, the appellant preferred Writ petition in W.P. No. 28727/2009 impugning the revocation of his appointment as the ‘Fit Person’. This writ petition was accepted, and the Commissioner for HRI & CE was called upon to reconsider the appellant's claim.
Thereafter, notice of enquiry was caused. Sri M. Chitharanjandas Hegde, a member of the appellant's branch impugned such initiation in W.P. No. 30998/2009. This writ petition was also accepted, the proceedings before the Commissioner for HRI & CE were quashed and the parties were directed to have their asserted rights regarding Hereditary Trusteeship adjudicated in a civil court.
2.9 This order in W.P. No. 30998/2009 was carried in writ appeal in W.A. No.2642/2010 by Division Bench of this Court. The Division Bench concluded inter alia that the Commissioner for HRI & CE had power to make entry as regards the Hereditary Trustee when there were no dispute. However, the Commissioner for HRI & CE could not exercise such power when there was a dispute. In the event of a dispute, the Commissioner for HRI & CE will have to perforce direct the parties to the Civil Court for adjudication of the dispute. The Division Bench restored the enquiry leaving open all contentions, including the question as to the jurisdiction of the Commissioner for HRI & CE, to appoint/ declare a trustee, for adjudication.
2.10 However, this enquiry was continued by the Rajya Dharmika Parishat Tribunal (for short, ‘Parishat Tribunal’) as the Act of 1997 was brought into force and Tribunal was constituted by the Dharmika Parishat. The Parishat Tribunal concluded the proceedings by its reasoned order dated 8.2.2013. The Parishat Tribunal formulated the following two questions for its decision:
"1) Whether Rajya Dharmika Parishat and its subsidiary Tribunal enjoys jurisdiction, in appointing a Hereditary Trustee to the private religious institution?
2) Whether Rajya Dharmika Parishat/Tribunal could direct the parties to go to civil court in getting the issue concerning appointment of Hereditary Trustee adjudicated?"
Insofar as the first question, the Parishat tribunal, referring to the provisions of section 20-A(2)(vii) of the Act of 1997, concluded that if there is a dispute with regard to which member of a family, or which family, is entitled to succeed to the office of the Hereditary Trustee, the Rajya Dharmika Parishat will have no jurisdiction to entertain the dispute. The Parishat Tribunal concluded that because the provisions of section 20-A(2)(vii) of the Act of 1997 employ the word 'and', the Rajya Dharmika Parishat could record the name of a member of the family, who is entitled to succeed to the office of Hereditary Trustee only if there were no disputes in that regard. As regards the second question, the Parishat Tribunal, referring to the provisions of section 68 of the Act of 1997, concluded that the jurisdiction of a civil court is excluded only with regard to those questions that could be decided by the Rajya Dharmika Parishat, and because the Rajya Dharmika Parishat is not conferred with the power to adjudicate on the questions relating to appointment of a person as the Hereditary Trustee - particularly in case of a dispute, the competent civil would have to decide all questions relating to the appointment of Hereditary Trustee/S. The Parishat Tribunal concluded that the disputes should be referred to Civil Court for adjudication 'in a properly constituted suit' in that regard leaving all the contentions of the parties open. The Parishat Tribunal's order dated 8.2.2013 has remained unchallenged.
2.11 When the matter stood thus, the respondent Nos. 7 and 8 submitted on 5.3.2018/7.3.2018, separate applications with the Deputy Commissioner Udupi District/the Assistant Commissioner, Udupi Sub- division (respondent numbers 4 and 5) for their appointment as Hereditary Managing Trustee/Trustee and successor Hereditary Trustee respectively. They relied upon the agreements dated 23.6.2007 and 8.2.2018. As it appears from a cursory perusal of these agreements, a certain set of members of the branches of the Alva Hegde family have entered into agreement dated 23.6.2007, and also sworn to respective affidavits, inter alia agreeing to the appointment of respondent No. 8 as the successor Hereditary Trustee on behalf of the Alva Hegde family. Similarly, a certain set of the members of the branches of the Kurla Hegde family have also entered in to agreement dated 08.02.2018, and have sworn to affidavits, inter alia agreeing to the appointment of respondent No. 7 as the successor Hereditary Managing Trustee/Trustee of the Temple.
2.12 The respondent No. 3, acting upon such applications, forwarded a proposal to the Dharmik Parishat for the appointment of respondent Nos. 7 and 8 to the office of the Hereditary Managing Trustee/ Trustee. It is in consideration of such proposal, the Dharmika Parishat, in its meeting dated 23.3.2018, decided to declare respondent No. 7 as the Hereditary Managing Trustee/Trustee and the respondent No. 8 as the successor Hereditary Trustee in exercise of the powers under section 20-A(2)(vii) of the Act of 1997. Thereafter the impugned order dated 26.3.2018 is issued by the Commissioner for HRI & CE.
3. Sri Ashok Haranahalli, the learned senior counsel for the appellant canvassed multifold submissions which are as follows. The dispute as regards the appointment of a member from the Alva Hegde family as a Hereditary Trustee, and the appointment of Hereditary Managing Trustee/Trustee is a long pending dispute. These disputes have not been decided by a civil court. In fact, the Parishat Tribunal, while considering the respective claims in an earlier enquiry as per the orders of Division Bench of this court in a writ appeal in W.A. No.2642/2010, has categorically concluded that the aforesaid disputes cannot be decided by the Dharmika Parishat under the provisions of the Act of 1997 and relegated the parties to an appropriate civil proceedings before the competent civil court for adjudication. This dispute is pending adjudication in O.S. No. 297/2018. As such, the impugned decision/order is without jurisdiction on two counts. The impugned decision/order would tantamount to review of the decision of the Parishat tribunal on 8.2.2013, but the provisions of Act of 1997 do not confer power of review on Dharmika Parishat. The provisions of the Act of 1997 do not confer the necessary jurisdiction on the Dharmika Parishat to decide on questions relating to appointment of Hereditary Managing Trustee/Hereditary Trustee.
3.1 The Dharmika Parishat under Section 20(A)(i)(d) of the Act of 1997 can resolve dispute as to whether a trustee holds or held office as a Hereditary Trustee, and under Section 20(A)(2)(vii) thereof, the Dharmika Parishat shall, when there is no dispute as to who is entitled to the office of Hereditary Trustee upon the office of a Hereditary Trustee falling vacant, record the name of the member of the family who is entitled to succeed to the office of the Hereditary Trustee. However, when there is a dispute as to who would be entitled to succeed to the office of the Hereditary Trustee, Dharmika Parishat would have no jurisdiction. In fact, as is obvious from the orders dated 8.2.2013 of the Dharmika Parishat in the earlier proceedings between the parties, the Dharmika Parishat is aware that it is not enjoined with the powers under the Act of 1997 to adjudicate upon disputes regarding the appointment of Hereditary Trustee, except in the circumstances under Section 20(A)(1)(d) of the Act of 1997. The Dharmika Parishat vide its order dated 8.2.2013 has concluded that the civil court’s jurisdiction is excluded under Section 68 of the Act of 1997 only insofar as those questions which are to be dealt by the Dharmika Parishat under provision of Act of 1997. Nevertheless, the respondent Nos.7 and 8 have been appointed as successor Hereditary Managing Trustee/Trustee and successor Hereditary Trustee respectively.
3.2 The learned Senior counsel contended alternatively that, if it is held that the dispute between the parties as regards the appointment of Hereditary Managing Trustee/Trustee would be within the jurisdiction of Dharmika Parishat under Section 20- A(1)(d) or Section 20-A(2)(vii) of the Act 1997, the impugned decisions/order is arbitrary inasmuch as the same is in violation of principles of natural justice. The learned Senior counsel relying upon a catena of decisions including the decisions of the Hon’ble Supreme Court in Canara Bank vs V.K. Avasthi2, State Government Houseless Harijan Employees’ Association vs State of Karnataka and others3 and Devadas vs Union of India4, contended that adherence to the principles of natural justice is the minimum protection available to an individual against arbitrary procedure that may be adopted by judicial, quasi judicial or administrative authority while making orders affecting their rights. A statute must necessarily be consistent with the principles of natural justice unless expressly or by necessary implication excluded. If the relevant statute does not embody the requirement expressly, the requirement must be inferred from the nature of the duty to be performed under the statute. The extent of compliance with the principles of natural justice would depend on the facts and circumstances of a case and 2 (2005) 6 SCC 321 3 (2001) 1 SCC 610 the framework of the statute under which the right is decided.
3.3 The appellant has been agitating the dispute as regards the right to be appointed as a successor Hereditary Managing Trustee/Trustee, and in fact, the appellant’s application for his appointment as 'fit Person' asserting a claim that he was entitled to be declared a successor Hereditary Managing Trustee was pending consideration before the Commissioner for HRI & CE. The circumstances in which the impugned decision/order is taken also establishes that the Dharmika Parishat is aware of the pending dispute as regards the declaration of Hereditary Managing Trustee/Trustee. However, the impugned decision/order is taken, without even notifying the appellant individually or otherwise.
4 (2008) 8 SCC 725 3.4 If indeed the impugned decision/order is to be treated only as recording the name of members of the family who are entitled to succeed to the office of Hereditary Managing Trustee/trustee under Section 20- A(2)(vii), the Dharmika Parishat could have exercised such powers only if it formulated an opinion that there was no dispute as regards such succession. The provisions of section 20-A (2) (vii) empowers the Dharmika Parishat with the duty to record the name of the members of the family who are entitle to succeed to the hereditary office, but the same is predicated on the condition that there is no dispute as regards the same. Therefore, if there is any dispute as regards who is to succeed to the hereditary office, the Dharmika Parishat would not have jurisdiction. From the reading of the impugned decision/order, it is obvious that the Dharmika Parishat did not formulate an opinion in that regard. As such, the impugned decisions/order is in violation of Section 20-A(2)(vii).
4. Sri H. Subramanya Jois, the learned Senior counsel for the respondent Nos.7 and 8, as well as the counsel for the respondents, canvassed in rebuttal the following. The appellant’s case is on the premise that there is a subsisting dispute as regards the declaration of the right to succeed to the Hereditary Managing Trustee/Trustee, which could only be decided by a civil court, and because of such pending dispute, the impugned decision/order is without jurisdiction. However, this is incorrect. The appellant was impleaded as one of the plaintiffs in the suit in O.S. No.101/1996 on the demise of his father. But, on an application filed on behalf of the appellant, the appellant was transposed as one of the defendants, and later the suit itself was dismissed in the year 2015. The appellant’s subsequent application for review of the order permitting his transposition as defendant is also dismissed by order dated 21.1.2016. The appellant did not challenge this order, and as such, dismissal of the suit attained finality and the dispute as regards the declaration for Hereditary Managing Trustee/Trustee attained quietus. The reliance upon subsequent suit in O.S.No.297/2018 is misdirecting inasmuch as the suit is filed subsequent to the impugned decision/order and the filing is an afterthought. Therefore, the canvass on behalf of the appellant that there is an existing dispute, which has to be decided only by civil court, and as such, the impugned order is without jurisdiction, is untenable.
4.1 Though the requirement of compliance with principles of natural justice is inherent in the provisions of Section 20-A(1)(d), and 20-A(2)(vii), in the facts and circumstances of the present case, there was no violation of the principles of natural justice. The appellant with the abandonment of the suit in O.S. No. 101/1996, had given up his right to seek declaration as a successor Hereditary Managing Trustee/Trustee. The appellant's claim was only for appointment as a 'fit Person', a temporary measure until the declaration of Hereditary Trustee from amongst the members of ‘Kurla Hegde’ family and he had never set up a claim for declaration as a Hereditary Managing Trustee/Trustee. This is obvious from the appellant's application as referred to in the Official Memorandum dated 8.5.2009 and the appointment of the appellant vide the Official Memorandum dated 10.7.2009. As such, the appellant had no right to seek declaration/appointment as Hereditary Managing Trustee/Trustee, and if he did not have such a right, the appellant cannot complain of violation of the principles of natural justice.
4.2 The learned civil court in O.S. No. 101/1996 rejected the appellant's application for review of the earlier order. The appellant did not challenge this order of refusal to review. The appellant's present effort to distance himself from the application viz., I.A. No. 18 on the ground that the application was not supported by his affidavit is contrived, and is intended to bolster the canvass that there is pending dispute and therefore, the Dharmika Parishat has no jurisdiction. The proviso to Rule 18 of the Karnataka Civil Rules of Practice, 1967 stipulates the requirement of an affidavit by a party in support of an application, as against memorandum of facts by an advocate, only in respect of applications filed for temporary injunction, attachment, arrest, appointment of Guardian or the appointment of receiver or amendment of pleadings, and in all other applications, memorandum of facts of an advocate would be permissible and sufficient.
4.3 The proposition that the Dharmik Parishat could exercise its jurisdiction under section 20-A(2)(vii) only if the Dharmika Parishat could formulate an opinion that there was no dispute as regards who would be entitled to succeed to the office of Hereditary Managing Trustee/Trustee, is reading a rigour into the provisions, and the same would be impermissible as it would be in contravention of the golden rule of interpretation of statutes that a statutory provision should be read in its plain language without any additions or interpolations.
5. Sri Ashok Haranahalli, the learned senior counsel for the appellant, in rejoinder, submitted that the contention on behalf of the respondent Nos. 7 and 8 that the appellant had abandoned his rights/claim to appointment of the office of the Hereditary Trustee because his application viz., I.A.No. 18 in O.S. No.101/1996 and the later application for review of the orders on IA No.18 are rejected, and suit is also dismissed is specious. The reading of the provisions of Rule 18 of the Karnataka Civil Rules of Practice, 1967 is wholly erroneous. The proviso to Rule 18(2) should be read harmoniously with Rule 18(2). The correct reading of Rule 18(2) and the proviso there to would be that under Rule 18(2) an advocate may be permitted to file memorandum of facts in support of an application, in lieu of an affidavit by a party, when the application is based on facts that appear from the records of the case in the court or relate to the advocates' own act or conduct. However, insofar as the applications that are mentioned in the proviso to Rule 18(2), these applications shall be accompanied by an affidavit by the party. In the memorandum of facts accompanying application I.A. No.18, the advocate on record has not stated that he is swearing to his own conduct/act or facts based on records from the case. In fact, the advocate on record has filed memorandum of facts on the ground that there is conflict of interest between the appellant and the other plaintiffs and therefore, the appellant should be transposed as a defendant without noticing that the other plaintiffs were already transposed as defendants. Therefore, the rejection of neither I.A. No.18 nor I.A. No.20 for review could be held against the appellant at this stage, especially with the initiation of the later suit in O.S. No. 297/2018.
6. The learned senior counsels for both the appellant and the respondents submitted that the Act of 1997, as well as the Karnataka Hindu Religious Institutions And Charitable Endowments (Amendment) Act, 2011, has been struck down as being unconstitutional by separate Division Benches of this Court, and the challenge thereto is presently pending before the Hon'ble Supreme Court. But, the consideration of the submissions made would not be impeded by the proceedings before the Hon'ble Supreme Court.
7. Insofar as the bar of the Civil Court's jurisdiction under the provisions of the Act of 1997 prior to the Karnataka Hindu Religious Institutions and Charitable Endowments (Amendment) Act 2011, a Division Bench of this court in Subash Chandra Naik vs State of Karnataka and others5 has held that though the office of the Hereditary Trustee is recognised under the Act of 1997, the question as to who should succeed to such an office is a question should be decided by civil courts. In view of this decision, the amendments to the Act of 1997 by the Karnataka Hindu Religious Institutions And Charitable Endowments (Amendment) Act, 2011 and the respective canvass on behalf of the appellant and the respondents, the questions that arise for consideration are:
(1) Whether the ordinary jurisdiction of Civil Courts under Section 9 of the Code of Civil Procedure to decide questions relating to the rights to the office of Hereditary Trustee of a Family Temple stand absolutely excluded under section 68 of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 even after the Karnataka 5 2011 (3) Kar.L.J. 261 Hindu Religious Institutions and Charitable Endowments (Amendment) Act 2011, and consequentially, the jurisdiction to decide all questions relating to the office of Hereditary Trustee of a Family Temple is vested with the Rajya Dharmika Parishat/ Zilla Dharmika Parishat, statutory bodies constituted under the Karnataka Hindu Religious Institutions and Charitable Endowments (Amendment) Act, 2011, (2) Whether the Rajya Dharmika Parishat, while exercising its jurisdiction under section 20-A (1) (d) and section 20-A (2) (vii) of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997, is required to comply with the principles of natural justice, and if so, in what manner, (3) Whether the impugned order by the Dharmika Parishat and the consequential order by the Commissioner, Hindu Religious Institutions & Charitable Endowments, are irregular and perverse, (4) What order?
8. The Constitution Bench in the celebrated decision of Dhulabai vs. State of Madhya Pradesh6 has declared that it is a settled law that the jurisdiction of the civil courts is all embracing except to the extent it is excluded by an express provision of law or by clear intendment arising from such law and this would be the purport of section 9 of the Code of Civil Procedure, and has further elucidated that where there is no express exclusion of the jurisdiction, the examination of the remedies and the scheme of the particular Act in order to find out the intendment becomes necessary and the result of the enquiry may be decisive. If there is no express bar, it would be necessary to see if the statute creates a special right or liability, and whether the 6 (2014) 16 SCC 51 statute lays down that all questions about the said right and liability shall be determined by the tribunal constituted under the Act. The Hon'ble Supreme Court in Banwar Lal v. Rajasthan Board of Muslim Wakf7 has declared thus:
"The civil courts have the jurisdiction to try all suits of civil nature except those entertainment whereof is expressly or impliedly barred. The jurisdiction of the civil courts to try suits of civil nature is very expansive. Any statute which excludes such jurisdiction is, therefore, an exception to the general rule that all disputes shall be triable by a civil court. Any such exception cannot be readily inferred by the courts. The court would lean in favour of a construction that would uphold the retention of jurisdiction of the civil courts and shift the onus of proof to the party that asserts that the civil court's jurisdiction is ousted. Even in cases where the statute accords finality to the orders passed by the Tribunals, the court will have to see whether the Tribunal has the power to grant the reliefs which the civil courts would normally grant in suits filed before them. If the answer is in the 7 (2014) 16 SCC 51 negative, exclusion of the civil court's jurisdiction would not be ordinarily inferred."
9. Thus, from the above, it follows, firstly, that a court, while examining whether the jurisdiction of a civil court is excluded under a statute, must not readily infer such exclusion. Secondly, the court must examine whether there is an express exclusion of the jurisdiction under the statute. Thirdly, if there is no express exclusion of the jurisdiction, whether any special right or liability is created under the statute with provision for redressal thereunder. Fourthly, even where finality to the orders of the tribunal is prescribed under the statute, the courts will have to examine whether the tribunal could grant the reliefs which the courts could, and if the tribunals can grant the relief that the civil courts can grant, the exclusion of jurisdiction should be inferred.
10. The bar under the Act of 1997 to the jurisdiction of the civil courts is under Section 68, which reads as under:
"68. Bar of Jurisdiction.- Save as expressly provided in this Act, no civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act required to be decided or dealt with by an officer or authority under the Act or in respect of which the decision or order of such officer or authority is made final and conclusive."
It is obvious from the provisions of this section that the bar of the jurisdiction of the civil courts is not absolute, and the exclusion is confined to two categories viz., those questions which shall be decided or dealt with by an officer or an authority under the Act of 1997, and in respect of those decisions and orders of such officer or authority which is made final and conclusive. If there are questions that do not come under these two categories, the jurisdiction of the civil courts with respect to such questions is not excluded. Thus, Section 68 does not absolutely bar the jurisdiction of civil courts, and this has also be so held by a Division Bench of this Court in Subash Chandra Naik v. State of Karnataka and others8, while considering the provisions of section 2 (15) of the Act of 1997 and the powers of the Commissioner under section 3 of the Act of 1997, has held that:
"No doubt the hereditary office in the instant case is one falling within the provisions of section 2 (15) of the Act which defines the hereditary officeholder and hereditary trustee. The powers of the Commissioner under section 3 is the power of superintendence and control for the purpose of carrying out the provisions of the Act which includes the power to pass any order which will be necessary to ensure that the institutions are properly administered and the income is duly appropriated for the purpose they were found or exist. Section 68 speaks about the bar of jurisdiction viz a viz the civil court. However the 8 2011 (3) Kar.L.J. 261 said section as a saving clause and it says that no civil court shall have jurisdiction to decide the dispute in question which is, by or under this Act, required to be decided or dealt by an officer or an authority under the Act, unless it is expressly provided. On a conspectus reading of the aforesaid provisions, what emerges is that civil court would have jurisdiction to deal with an issue connected with the matter which would not come within the scope of the Act. In other words, though the office of the hereditary trustee is recognised under the Act, the question as to who should succeed to such an office is a question which would not come within the scope of general superintendents and control for the purposes of carrying out the provisions of the Act which powers can be exercised by the Commissioner subject to general or special orders of the state government."
11. After this Division Bench decision, the Act of 1997 has been amended by the Karnataka Hindu Religious Institutions and Charitable Endowments (Amendment) Act, 2011; by this amendment inter alia the provisions of erstwhile Section 20 of the Act of 1997 are substituted. Further, the provisions of Section 20A and 25A have also been included. This amendment is made because the legislature considered necessary, amongst others, to constitute Dharmika Parishat at the State Level and Zilla Dharmika Parishat at the District Level, with powers to administer the temples and to settle the disputes for the better management of religious institutions, while protecting the hereditary rights of the Trustees and to continue the management of such temples by the Hereditary Trustees. The question that arises is whether the jurisdiction of the civil courts stands excluded after these amendments. The provisions of section 20-A read as follows:
"20A. The powers and functions of the Dharmika Parishat.- The powers and functions of the Dharmika Parishat shall be as follows, namely.-
(1) The Dharmika Parishat shall be empowered to resolve any dispute.-
(a) regarding religious practices, customs, usage, traditions and for that purpose it may consult experts to assist in resolving such disputes;
(b) as to whether a temple is a public, private or denominational temple;
(c) as to whether an institutions is a religious institution or a composite institution;
(d) as to whether a trustee holds or held office as hereditary trustee of such institution.
(2) The Dharmika Parishat.-
(i) may constitute a Committee of Management to the notified institution having gross annual income of rupees [twenty five lakhs] and above;
(ii) may approve scheme for adoption of temples having an income of rupees two lakhs or less and to fix the terms of adoption;
(iii) shall act as appellate authority in respect of orders passed by the Zilla Dharmika Parishat;
(iv) for the purpose of resolving any dispute as provided under this section Nyayadhikarana may be constituted with the judicial member of the Parishat and the Commissioner as its members. If there is difference of opinion among the members the issue shall be decided by the Dharmika Parishat;
(v) may recommend to the State Government to issue notification and de-notification of the institutions required to be notified or deleted under the provisions of the Act;
(vi) may dissolve Committee of Management of a notified institution having gross income of Rupees [twenty five lakhs] and above as provided under Section 28 and to appoint administrator to the notified institutions under Section 29;
(vii) shall record the name of the member of the family, who is entitled to succeed to the office of hereditary trustee when a permanent vacancy occurs and if there is no dispute in the office of the hereditary trustee.]"
12. The State Government may, on the recommendation of the Dharmika Parishat, constitute Zilla Dharmika Parishat to discharge those functions at the district level as could be discharged by the Dharmika Parishat at the state level. In addition, a reference to the provisions of section 25A would also be relevant, and the same read as follows:
"25A. Provision relating to institution managed by Hereditary Trustee.-
(1) No committee of management shall be constituted in respect of the notified institutions managed exclusively by hereditary trustees. The power of management shall vest in such hereditary trustee.
(2) If there is no legal heir to succeed the office of the hereditary trustee, the Dharmika Parishat or the Zilla Dharmika Parishat, as the case may be, shall constitute the committee of management as provided under Section 25.
(3) When a temporary vacancy occurs in the office of a hereditary trustee and if there is a dispute with regard to right of succession to such office and such vacancy cannot be filled up immediately or when a successor is a minor and has no guardian fit and willing to act or there is a dispute regard to as to who is entitled to succeed such office, the Dharmika Parishat may appoint a fit person to discharge functions of the office of hereditary trustee until the disability ceases or another successor succeeds to such office:
Provided that in making any appointment, the Dharmika Parishat shall have due regard to the claims of members of the said family, if any entitled to the succession".
13. As held by the Division Bench of this court in Subash Chandar Naik's case supra, after an overview of the provisions of the Act of 1997, the question as to who should succeed to the office of a Hereditary Trustee is a question that could not have been decided by the Commissioner for HRI & CE9, and could be decided only by a civil court. With these amendments vide the Act of 2011, which is brought into effect with the clear intendment of protecting hereditary right of the Trustees and to continue the management of such Family 9 The Commissioner for HRI & CE was the prescribed authority under the erstwhile provisions, but by virtue of the Act of 2011, this power is continued with the Commissioner HRI & CE subject to the jurisdiction of the Rajya Dharmika Parshiat.
Temples by the Hereditary Trustees, the Dharmika Parishat is conferred with the adjudicatory power "to resolve any dispute as to whether a Trustee holds or held office of Hereditary Trustee of such institution" and "to record the name of the member of the family, who would be entitled to succeed to the office of the hereditary trustee, whenever a permanent vacancy occurs and if there is no dispute has to succeed to the office of the hereditary trustee''. When these powers are considered in the light of the express stipulations in section 25-A, there would be no doubt that the power in the Dharmika Parishat to adjudicate is confined to a narrow vertical of "resolving a dispute as to whether a Trustee holds or held office as Hereditary Trustee" as against a larger jurisdiction to decide who would be entitled to succeed to the office of Hereditary Trustee in terms of the personal law applicable. The stipulations under Section 25-B are that (i) no Committee of Management shall be constituted in respect of notified institutions managed by Hereditary Trustees unless there is no legal heir to succeed to the office of the Hereditary Trustee, and (ii) the Dharmika Parishat could only appoint a 'Fit Person' to discharge the functions of the office of Hereditary Trustee in the event there being any dispute as regards who could succeed to the office of Hereditary Trustee.
14. As such, this court is the considered opinion that the jurisdiction of Civil Courts under Section 9 of the Code of Civil Procedure to decide questions relating to the rights to the office of Hereditary Trustee of a Family Temple is not absolutely excluded under section 68 of the Karnataka Hindu Religious Institutions And Charitable Endowments Act, 1997 even after the Karnataka Hindu Religious Institutions and Charitable Endowments (Amendment) Act 2011, and the Dharmika Parishat could only resolve a dispute, which is in the nature of an in praesenti dispute as to who holds or held the office of the Hereditary Trustee as against the larger question as to who could succeed to the office of the Hereditary Trustee in terms of the applicable personal law. This larger question will have to be essentially decided by a civil court under its jurisdiction as per section 9 of the Code of Civil Procedure.
15. The Dharmika Parishat, when it exercises its powers under section 20-A (1) (d) is essentially resolving a dispute, which is a dispute in the nature of an in praesenti dispute, as to who holds or held the office of the Hereditary Trustee, and it is trite that resolution of a dispute will have to be after hearing all the parties to the dispute. As such, as accepted by the learned senior counsel for both the parties, the requirement to comply with the principles of natural justice inheres in this provision. The Dharmika Parishat under section 20- A(2)(vii) records the name of a family member who is entitled to succeed to the office of the Hereditary Trustee, when such office falls vacant permanently, and there is no dispute as to who could succeed to the office of the Hereditary Trustee. Therefore, the Dharmika Parishat's power under section 20-A(2)(vii) is not unfettered. The Dharmika Parishat is obliged under the provisions of section 20-A(2)(vii) to formulate an opinion as regards there being no dispute about recording the name of a family member as Hereditary Trustee. The condition in Section 20-A(2) (vii) that the Dharmika Parishat should formulate an opinion about there being no dispute before it proceeds to record the name of a family member as provided therein is not a condition that is being read into or an interpolation of a non- existent requirement. The argument that the stipulation that Dharmika Parishat should formulate an opinion about there being no dispute before it could record the name of a family member under Section 20-A (2) (viii) would be an interpolation and contrary to the established principles of interpretation of statutes is rather misconceived.
16. The Dharmika Parishat cannot formulate its opinion as regards there being no dispute merely on the basis of the information provided by an applicant, and the Dharmika Parishat has to ascertain whether there is indeed a dispute or not. Otherwise, the Dharmika Parishat could record the name of an applicant despite a possible dispute from the other members of the family. It is settled law that the requirement of compliance with the principles of natural justice will have to be read into the provisions of a statute, unless a contrary intendment is obvious from the provisions of the statute. There is no provision in the Act of 1997 which contains an expression of intendment to exclude the application of the principles of natural justice. On the other hand, under the Karnataka Hindu Religious Institutions and Charitable Endowments Rules, 2002, framed in exercise of power under section 76 of the Act of 1997, the Dharmika Parishat, while inviting nominations to fill up vacancies in the "Committee of Management", Dharmika Parishat is required to notify in the prescribed Form the vacancies by affixing on the Notice Board of the institution concerned and the Notice Board of the concerned Gram Panchayat/Taluk Panchayat. This process could be followed when Dharmika Parishat exercises its power under section 20-A (2) (vii), and this would afford an opportunity to the concerned to appear before the Dharmika Parishat and bring it to its notice that there is a dispute as regards who could succeed to the office of the Hereditary Trustee. It is incumbent that the Dharmika Parishat should not only form an opinion as aforesaid while exercising its power under section 20-A(2)(viii), it should also comply with the principles of natural justice, and there would be such compliance if the Dharmika Parishat could notify, on the Notice Board of concerned Family Temple and Notice Board of the concerned Grama/ Taluk Panchayat, its intent to record the name of a family member as contemplated if there is no dispute in that regard.
17. It is obvious from a plain reading of the impugned proceedings dated 23.3.2018, and the order dated 26.3.2018 that they are in exercise of the powers under section 20-A(2)(vii) and not Section 20-A(1)(d). These proceedings and order are pursuant to the application submitted by the respondent Nos. 7 and 8 along with the copies of the different agreements and affidavits sworn to by certain members of both the families. Prime facie, the appellant does not appear to be a party to the agreements or the affidavits. Similarly, there is nothing to indicate that the appellant was aware of the proceedings before the Dharmika Parishat or that the appellant was notified of the proceedings before it was decided that the respondent Nos. 7 and 8 are to be declared as the Hereditary Trustee and the successor Trustee respectively. Further, there is nothing on record to indicate that the Dharmika Parishat has been able to formulate an opinion that there is no dispute amongst the members of the different branches of these two families as regards recording the names of respondent Nos. 7 and 8 as the Hereditary Trustees and the Successor Trustee respectively. As held above, it was incumbent upon the Dharmika Parishat, in terms of section 20-A(2)(vii), especially when it has referred to earlier proceedings, to formulate an opinion that there was no dispute. Furthermore, the Dharmika Parishat has also not considered its own order dated 8.2.2013 in the earlier proceedings where it concluded that the proceedings before it was summary in nature and the questions raised ought to be decided in a regularly constituted suit in a competent court of law. The Dharmika Parishat, in the considered opinion of this court, should consider the above circumstances as well as the other grounds urged herein and formulate an opinion about the existence of a dispute between the appellant and the concerned respondents before recording the name of the respondent Nos. 7 and 8 in terms of the agreements/affidavits submitted by the appellant. As such, the impugned proceedings dated 23.3.2018 and order dated 26.3.2018 are not in accordance with the requirements of the provisions of section 20-A(2)(vii) and are liable to be set-aside. Further, this court is also of the considered opinion that, it would be just and reasonable, for this court to remit the matter back to the Dharmika Parishat for re-consideration clarifying that no opinion is expressed on any of the respective contentions except considering such contentions for the purposes of answering the questions formulated. As such, the following order:
a) The appeal is allowed in part, and the impugned proceedings dated on 23.3.2018 of the Dharmika Parishat in its 14th Meeting, and the consequential order dated 26.3.2018 by the Commissioner for Hindu Religious Institutions and Charitable Endowments are set aside.
b) The matter is remitted back to the Dharmika Parishat to consider the application filed by the respondent Nos. 7 and 8 after affording an opportunity to the appellant to file his objections thereto, in accordance with law.
c) No costs.
Sd/- Judge nv ct:sr BMSPJ:
22.2.2019 MFA NO.7470/2018 ORDER After the judgment is pronounced, the learned counsel for the appellant and the counsel for the respondents submit that a date may be fixed for the appearance of the appellant and the concerned respondents in the present proceedings before the Rajya Dharmika Parishat. Accordingly, it is directed that the appellant and the concerned respondents shall appear before the Rajya Dharmika Parishat on 18.3.2019 at 3p.m.
Sd/- Judge nv