Judgment reserved on 06.8.2018 Judgment delivered on 31.8.2018
Case :- MATTERS UNDER ARTICLE 227 No.1637 of 2018 Petitioner :- Ram Kumar Pandey Respondent :- Narain Prasad Pandey Counsel for Petitioner :- Kshitij Shailendra Counsel for Respondent :- Ravi Shanker Pathak,S.C.
Hon'ble Mahesh Chandra Tripathi,J.
1. Heard Shri Kshitij Shailendra, learned counsel for the defendant-petitioner and Ms. Nandani Sharma, learned counsel for the plaintiff-respondent.
2. The present writ petition has been filed under Article 227 of Constitution of India, assailing the validity of the order dated 9.1.2018 passed by the Additional District and Sessions Judge, Court No.5, Mathura, whereby the application (326-C) filed by the respondent Narain Prasad Pandey was allowed and the previous order dated 6.10.1994 passed in R.M. Case No.34 of 2014 relating to Original Suit No.94 of 1923 (Nootan Prakash vs. Khushi Ram and others) was set aside.
3. Brief background of the case, as is reflected from the record, is that the Original Suit No.94 of 1923 was filed by Nootan Prakash relating to the services of 'Thakur Shri Dauji Maharaj Virajman Mandir, Baldeo, Tehsil Mahawan, District Mathura' (in short, the temple). In the aforesaid suit proceedings, the then parties entered into a compromise on 10.10.1924, whereby the right of management of the temple was also accorded upon and it was also resolved that the Court would have right to appoint the manager in consultation with the parties. Accordingly, the suit was decided in terms of the said compromise and as per agreed terms of the compromise, the parties were serving at the temple to the extent they had been assigned their services.
4. It appears that the father of the respondent late Shri Purushottam Lal Pandey was trustee of the temple trust and died on 2.6.1978. After his death, the respondent was born on 17.7.1978 and as per customs and usage (customary law) practiced at the temple, the title of the trusteeship is inherited by the son (elder) of the deceased trustee. Late Deen Dayal, who was the father of the petitioner and uncle of the respondent, moved an application on 7.2.1981 for impleadment/substitution in place of late Shri Purushottam Lal Pandey on the pretext that the respondent was minor aged about four years and paralytic and his mother late Smt. Kripo Devi had given no objection for his impleadment/substitution in place of late Shri Purushottam Lal Pandey. It is claimed that on the basis of no objection so accorded by the parties, the application (6C) was allowed by the trial court vide its order dated 16.8.1983.
5. The respondent is living outside District Mathura since his childhood and he could not make frequent visits to Mathura on account of paralysis in his right lower limb. An application was moved for substitution of the petitioner in place of his father Shri Deen Dayal and his brother had also submitted no objection vide his application dated 5.10.1994. When the petitioner visited Mathura in the month of September, 2007, he had filed an application dated 22.9.2017 (326-C) stating therein that his father, who was trustee of the temple, died on 2.6.1978 and after his death, he was born on 17.7.1978. The substitution of Shri Deen Dayal was fraudulently obtained in the year 1983 and the petitioner had been impleaded/substituted in place of his father late Deen Dayal. The respondent remained outside from Mathura for education and that his mother Smt. Kripo Devi had also died in the year 2000. Some elder persons advised him that instead of his uncle and his cousin (the petitioner), he is entitled for receiving the offerings (Sewa) and only after receiving the relevant information, he had moved the present application dated 22.9.2017 (326-C) for recalling the orders dated 16.8.1983 and 6.10.1994 and for direction for his substitution in place of his father late Shri Purushottam. The said application had been objected by the petitioner through an objection (357-C) on 23.10.2017 to the effect that the substitution of the father of the petitioner was allowed way back in the year 1983 and even after his death, the petitioner has also been substituted 24 years' back in the year 1994. Moreover, the mother, who was the natural guardian of the respondent, had given no objection certificate and at this belated stage, the said application was liable to be rejected. By the impugned order dated 9.1.2018, learned Additional District and Sessions Judge, Court No.5, Mathura has allowed the substitution application (326-C).
6. Shri Kshitij Shailendra, learned counsel for the petitioner vehemently contended that the uncle of the petitioner namely Shri Purushottam died on 2.6.1978. Thereafter, an application was moved by the father of the petitioner on 7.2.1981 for his impleadment/substitution in place of late Shri Purushottam on the ground that the respondent is minor and unable to manage himself and his mother namely Smt. Kripo Devi had also given no objection in this regard. Only thereafter the substitution application of the petitioner was allowed and at no point of time, the father of the petitioner had made any concealment of material fact. At the relevant point of time, admittedly the respondent was minor and paralytic and the other trustees had also given no objection in the matter. Accordingly, the impleadment/substitution was allowed by the trial court on 16.8.1983. Later on, the petitioner has also been substituted in place of his father late Deen Dayal on 6.10.1994.
Admittedly, the aforementioned application was moved by the respondent after 34 years of impleadment/substitution of late Shri Deen Dayal and 24 years of substitution of the petitioner. There was no justification for moving such belated application. Learned Court below erred in law in allowing the application in question as there was no justification to set aside the earlier order dated 6.10.1994 on the application moved after 23 years without any application for condonation of delay.
7. It has been further submitted that at the time of death of late Shri Purushottam, the respondent was minor aged about four years and his mother late Smt. Kripo Devi had given consent in favour of substitution of the petitioner's father. At this belated stage, no contrary view could be taken particularly when Smt. Kripo Devi died in the year 2000. The petitioner is continuously providing services to the temple. Even in the matter of appointment of the receiver, objections and applications were filed on his behalf and the same were also considered. In pursuance of the impugned order the name of the petitioner would be scored out from the record and in case the order impugned is not set aside, the petitioner shall suffer irreparable loss and injury.
8. On the other hand, Ms. Nandani Sharma, learned counsel for the defendant has vehemently opposed the writ petition and submitted that the father of the respondent late Shri Purushottam Lal Pandey was trustee of the temple and he died on 2.6.1978. Later on, the respondent was born on 17.7.1978. As per customs and usage (customary law) practiced at the temple since immemorial time and without any interruption, the title of the trusteeship is non- transferable. In fact, it was inherited by the son (elder) of the deceased trustee. As such, she had contended that the respondent is only son of the deceased trustee late Sri Purushottam Lal Pandey and he has only right to inherit trusteeship title in succession from his deceased father. She has also argued with vehemence that the father of the petitioner was also well-conversant with the customary law, and even he had also relied on the same customary law as well as precedence prevailing in the temple, while moving the substitution/impleadment application.
9. Learned counsel for the defendant further submitted that the letter dated 13.2.1981 (Annexure CA-3 to the counter affidavit), which was allegedly procured by the petitioner's father from the other temple trustees, is unsustainable in the eyes of law. In fact, the trustees have no role to play in the appointment of another trustee according to the customary law, hence their consent in support of the petitioner's father had no legal value. As per customs and usage practiced at the temple, there are 14 trustees in the temple trust since immemorial time, without any interruption and each trustee inherited title in succession from his deceased father (trustee). She has also drawn attention of the Court on the letter dated 13.2.1981, which certified that the widow of the deceased trustee late Shri Purushottam Lal Pandey had also consented for the same, whereas the forged consent letter/affidavit in the name of the mother of the respondent exhibited later date i.e. 16.2.1981, which amply proved that the said letter had been obtained under influence of the petitioner's father and the same cannot be relied upon. At no point of time, the mother had ever consented and the defendant is the only son of the deceased trustee and his rightful claim, which is based upon inheritance, cannot be denied and as such, the rightful order has been passed and no interference is required in the matter.
10. She has further submitted that the father of the petitioner used fraudulent means to get himself substituted as acting trustee (agent) as reflected from his application dated 23.8.1994 and represented the respondent, who was minor, without any knowledge. After the death of his father, the petitioner was appointed as acting trustee. The aforesaid appointments were against the customary law taken by fraudulent means and were against beneficial to the rights and interest of the respondent. At no point of time, the mother of the defendant late Kripo Devi had given any consent whatsoever in this regard and the alleged letter (NOC) was also forged. Learned Additional Civil Judge, Mathura had also erred in law inadvertently while allowing the initial substitution application without seeing the legal implication of the matter and without taking into account the customs and usage that the title of the trusteeship is non-transferable but inherited in succession by the elder son of the deceased trustee. Once it had been brought into the notice that the respondent is the only son of the deceased trustee, and he could only inherit the trusteeship title from his deceased father, then taking into account the entire scenario, the rightful order has been passed. There is no grave infirmity or illegality in the impugned order and the writ petition is liable to be dismissed.
11. Having regard to the aforesaid submissions and having scrutinized the record in question, the Court finds that the father of the respondent late Purushottam Lal Pandey was trustee of the temple trust and died on 2.6.1978. After the death of his father, the respondent was born on 17.7.1978. Both the parties are also with an agreement that as per customs and usage of the temple trust the title of the trusteeship is non-transferable and the same is inherited by the son of the deceased trustee. Admittedly, the respondent is the only son of the deceased trustee late Purushottam Lal Pandey and he can inherit the trusteeship in succession from his father. He was minor at the time of appointment of late Sri Deen Dayal Pandey as acting trustee in the year 1983 and thereafter at the time of appointment of the petitioner Ram Kumar Pandey in the year 1994. These appointments were made against the customary law. The respondent is living outside Mathura since his childhood for education and on account of paralysis in his right lower limb, he also could not make frequent visits to Mathura. It is alleged that the father of the petitioner submitted the forged document dated 16.2.1981 in the name of mother of the respondent Smt. Kripo Devi stating therein that the respondent is mentally unsound and she had no objection for the appointment of the father of the petitioner as trustee. The respondent is not of unsound mind and he passed MBBS Course in the year 2002 from S.N. Medical College, Agra and M.D. Course from AIIMS, New Delhi. At present, he is serving in Ministry of Health & Family Welfare and posted at New Delhi. The aforesaid consent letter was allegedly prepared without any knowledge of the mother of the respondent. The said fraud came to the knowledge of the petitioner in the month of September, 2017. Thereafter, he had moved the present application (326C) on 22.9.2017 for recalling the orders dated 16.8.1983 and 6.10.1994.
12. The Court has also occasion to peruse the impugned order dated 9.1.2018 wherein learned Additional District & Sessions Judge, Court No.5, Mathura has recorded categorical findings that learned Civil Judge (Senior Division) Mathura vide his orders dated 16.8.1983 and 6.10.1994 had directed for impleadment of Deendayal and Ramkumar respectively and during the said period, no application was received from the heirs of Purshottam for impleadment on account of which no decision was taken on the said issue.
But the respondent Narain Prasad Pandey, son of Purushottam Pandey filed the aforesaid application (Paper No.326-C) for his impleadment in the year 2017 enclosing therewith his mark-sheets and certificates of High School Examination-1993 & Intermediate Examination-1994, wherein his father's name is mentioned as Purushottam Lal Pandey and his date of birth is 17.7.1978. From the aforesaid, it is clearly reflected that the respondent is the son of Purushottam. In the said application, he had stated that his father had expired on 2.6.1978 and he was born on 17.7.1978. After the death of Purushottam, the respondent was legally entitled to be impleaded in the matter but at that time, since he was minor, Deendayal got himself substituted/impleaded in place of father of the respondent on the basis of the alleged affidavit of the mother of the respondent dated 18.8.1983. Meanwhile, the mother of the respondent had also died. After the death of his father, the petitioner was also impleaded on 6.10.1994. In the aforesaid circumstances, learned Additional District & Sessions Judge, Court No.5, Mathura set aside the order dated 6.10.1994 and held that the respondent is the only son and legal heir of the deceased trustee and he can only inherit the trusteeship title after the death of his father as per customs and usage of the temple trust.
13. The right as claimed by the respondent is his personal right which is an enforceable civil right. In Rajkali Kuer vs. Ram Rattan pandey reported in 1975 (2) SCR 186 it was observed by the Apex Court that religious offices can be hereditary and that the right to such an office is in the nature of property under the Hindu Law. In the said judgment, Hon'ble Apex Court had relied upon a Full Bench judgment of the Calcutta High Court in Manohar vs. Bhupendra AIR 1932 Calcutta 791 wherein it was held that the religious offices can be hereditary and that the right to such an office is in the nature of property under the Hindu Law is now well established. This view has been accepted by the Privy Council in two subsequent cases in Ganesh vs. Lal Behary [(1936) LR 63 IA 448] and Bhabatarini vs. Ashalata [(1943) LR 70 IA 57]. In the Commissioner, Hindu Religious Emdowments, Madras vs. Sri Lakshmindra Thirtha Swamiar [(1954) SCR 1005] this view has been reiterated and extended to the office of a Mahant. On the view that Shebaiti is property, the Apex Court has also recognized the right of a female to succeed to the religious office of Shebaitship in the case reported as Angurbala vs. Debabrata [(1951) SCR 1125], where the question as to the applicability of Hindu Women's Right to Property Act to the office of Shebaitship came up for consideration. On the same analogy as that of a Shebaiti right, the right of a hereditary priest or Pujari in a temple must also amount to property where emoluments are attached to such an office.
14. In the aforementioned facts and circumstances, the scope and ambit of this Court under Article 227 of Constitution of India is to be seen.
15. A Constitution Bench of Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and another Vs. Amarnath and another AIR 1954 SC 215 and made following observations at p. 571 :
"This power of superintendence conferred by article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee AIR 1951 Cal. 193, to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors".
16. The Constitution Bench of Apex Court in Nagendra Nath Bora and Another v. Commissioner of Hills Division and Appeals, Assam & Others AIR 1958 SC 398 settled that power under Article 227 is limited to seeing that the courts below function within the limit of its authority or jurisdiction.
17. Hon'ble Apex Court had an occasion to examine this aspect of the matter in the case of Mohd. Yunus v. Mohd. Mustaqim & Others (1983) 4 SCC 566 in which Hon'ble Apex Court observed that the supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority," and not to correct an error apparent on the face of the record, much less an error of law. For this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision."
18. The said view has also been reiterated by the Apex Court in Laxmikant Revchand Bhojwani & Another v. Pratapsing Mohansingh Pardeshi (1995) 6 SCC 576 and the Apex Court had again cautioned that the High Court under Article 227 of the Constitution cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes.
19. A three-Judge Bench of Hon'ble Apex Court in Rena Drego (Mrs.) v. Lalchand Soni & Others (1998) 3 SCC 341 again abundantly made it clear that the High Court cannot interfere with the findings of fact recorded by the subordinate court or the tribunal while exercising its jurisdiction under Article 227. Its function is limited to seeing that the subordinate court or the tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and re-appreciating it.
20. In Virendra Kashinath Ravat & Another v. Vinayak N. Joshi & Others (1999) 1 SCC 47 Hon'ble Apex Court held that the limited power under Article 227 cannot be invoked except for ensuring that the subordinate courts function within its limits. The High Court cannot, while exercising jurisdiction under Article 227, interfere with findings of fact recorded by the subordinate Court or Tribunal. Its function is limited to seeing that the subordinate Court or Tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and re-appreciating it.
21. It is well settled that power under Article 227 is of the judicial superintendence which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. (See: Chandra Bhushan Vs. Beni Prasad & ors., (1999) 1 SCC 70; Savitrabai Bhausaheb Kevate & ors. Vs. Raichand Dhanraj Lunja, (1999) 2 SCC 171; and Savita Chemical (P) Ltd. Vs. Dyes & Chemical Workers' Union & Anr.,(1999) 2 SCC 143).
22. Power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-
appreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence. (See: Union of India & ors. Vs. Himmat Singh Chahar, (1999) 4 SCC 521).
23. In Ajaib Singh Vs. Sirhind Co-opeative Marketing cum Processing Service Society Ltd., (1999) 6 SCC 82, the Apex Court has held that there is no justification for the High Court to substitute its view for the opinion of the Authorities/ Courts below as the same is not permissible in proceedings under Articles 226/227 of the Constitution.
24. In Mohan Amba Prasad Agnihotri Vs. Bhaskar Balwant Aheer, AIR 2000 SC 931, the Court said that jurisdiction of High Court under Article 227 of the Constitution is not appealable but supervisory. Therefore, it cannot interfere with the findings of fact recorded by Courts below unless there is no evidence to support findings or the findings are totally perverse.
25. In Indian Overseas Bank Vs. Indian Overseas Bank Staff Canteen Workers' Union (2000) 4 SCC 245, the Court observed that it is impermissible for the Writ Court to reappreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court can not interfere.
26. In Union of India Vs. Rajendra Prabhu, (2001) 4 SCC 472, the Apex Court observed that the High Court, in exercise of its extraordinary powers under Article 227 of the Constitution, cannot re-appreciate the evidence nor it can substitute its subjective opinion in place of the findings of Authorities below. Similar view has been reiterated in State of Maharashtra Vs. Milind & ors., (2001) 1 SCC 4; Extrella Rubber Vs. Dass Estate (P) Ltd., (2001) 8 SCC 97; and Omeph Mathai & ors. Vs. M. Abdul Khader, (2002) 1 SCC 319.
27. In Surya Dev Rai Vs. Ram Chander Rai and others (2003) 6 SCC 675, it was held by the Apex Court that in exercise of supervisory power under Article 227, High Court can correct errors of jurisdiction committed by subordinate Courts. It also held that when subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has occasioned, the Court may step in to exercise its supervisory jurisdiction. However, it also said that be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law unless error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law; or, a grave injustice or gross failure of justice has occasioned thereby.
28. In Jasbir Singh Vs. State of Punjab (2006 ) 8 SCC 294, the Apex Court said:
"...while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial functions."
29. In Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil (2010) 8 SCC 329, the Apex Court said that power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. The above authority has been cited and followed in Kokkanda B. Poondacha and others Vs. K.D. Ganapathi and another AIR 2011 SC 1353 and Bandaru Satyanarayana Vs. Imandi Anasuya (2011) 12 SCC 650.
30. In Abdul Razak (D) through Lrs. & others Vs. Mangesh Rajaram Wagle and others (2010) 2 SCC 432, Apex Court reminded that while exercising jurisdiction under Article 226 or 227, High Courts should not act as if they are exercising an appellate jurisdiction.
31. In T.G.N. Kumar Vs. State of Kerala and others (2011) 2 SCC 772, the Court said that power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority.
32. In Commandant, 22nd Battalion, CRPF and others Vs. Surinder Kumar (2011) 10 SCC 244, Apex Court referring to its earlier decision in Union of India Vs. R.K. Sharma (2001) 9 SCC 592 observed that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Articles 226 or 227.
33. In the facts and circumstances, this Court does not find any error in the impugned order.
34. The writ petition sans merit and it is, accordingly, dismissed.
Order Date :- 31.8.2018 RKP