IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE B.VEERAPPA WRIT PETITION NO.41159/2011(GM-R/C) BETWEEN:
Sri. M.Raghuram Rao, Aged about 61 years, S/o. late Madku Govinda Rao, Madku House, Belman - 576 111, Karkala Taluk, Udupi District.
Represented by GPA Holder, Sri. T.G.Ramesh Kumar, S/o. G. Girigowda,33, 17th Cross, 13th Main, Malleshwaram, Bengaluru – 560 055. ….Petitioner (By Sri. H.Ramachandra, Advocate.) AND:
1. Sri. Madku Raghuveera Rao, S/o. late Sri. Govindarao, Major, Belman village, Karkala Taluk, Udupi District.
2. The Deputy Commissioner, Udupi District, Udupi (Hindu Religious and Charitable Endowments).
3. The Religious & Charitable Endowments Commissioner, Chamarajpet, Bengaluru. …Respondents.
(By Sri. Nataraja Ballal, Advocate for R.1 and Sri. S.Chandrashekaraiah, HCGP for R.2 and R.3.) This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order passed by the 2nd respondent vide Annexure-D in Appeal dated 20/08/2011.
This petition coming on for hearing this day, the Court made the following;
ORDER The petitioner has filed the present petition to quash the order dated 02/04/2007 passed by respondent No.2 vide Annexure-D in case No.DOS:LAW:CR 31:2002-03 confirming the order 20/08/2011 passed by respondent No.3 in appeal No.ADM:7/RP 6/10-11 appointing the respondent No.1 as hereditary trustee (Moktesara) of Sri. Durga Parameshwari Temple, Sri.Sasthavu Brahmalingeshwara Temple and Padu Sri. Mahalingeshwara Temple, Karkala Taluk, Udupi District.
2. It is the case of the petitioner that the father of the petitioner namely, Madku Govinda Rao was functioning as hereditary trustee of the said temples. He died on 22/08/1997. Respondent No.1 filed an application to treat him as a hereditary trustee of the said temples. Petitioner being the eldest son appears to claim hereditary trusteeship under the provisions of the Madras Hindu Religious and Charitable Endowment Act, 1951 in place of his father. The Deputy Commissioner after holding enquiry, by an order dated 02/04/2007 appointed respondent No.1/ Madku Raghuveera Rao, as a hereditary trustee of the said temples. Against the said order, petitioner filed an appeal before respondent No.3, the Commissioner Hindu Religious and Charitable Endowment, Bengaluru in appeal No. ADM 7/RP 6/10-11. Respondent No.3 after considering the entire material on record, by the impugned order dated 20/08/2011, dismissed the appeal confirming the order passed by the Deputy Commissioner. Hence, the present writ petition.
3. The respondent/State has filed objections contending that the very writ petition filed by the petitioner is not maintainable and liable to be dismissed. It is further contended that the petitioner filed an application to treat him as an hereditary trustee of the said temples in place of his late father Madku Govinda Rao. On the basis of the order of the Deputy Commissioner, South Kanara dated 23/08/1961, petitioner claimed hereditary trusteeship of the said temples. After the death of Madku Govinda Rao, father of the petitioner, respondent No.1, who is the eldest son of the family was treated as heredity trustee in place of his father as per the Deputy Commissioner’s order dated 02/04/2007. It is further contended that there was a partition among Govinda Rao and his sons. Petitioner filed a suit for permanent injunction and a final decree was also passed. Therefore, the petitioner is not entitled to hereditary trusteeship under the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 and Rules, 2002. It is further contended that the present writ petition is filed only to remove respondent No.1 from the post of hereditary trustee of the said temples.
4. I have heard the learned counsel for the parties to the lis.
5. Sri. Ramachandra, learned counsel for the petitioner contended that the impugned order passed by respondent No.3 dismissing the appeal is in utter violation of principles of natural justice. He further contended that without issuing notice to the petitioner and no opportunity of being heard, the impugned order passed by the Deputy Commissioner confirming the order of the appellate authority is contrary to law. He would further contend that the finding of respondent No.3 that respondent No.1, eldest son should be considered as hereditary trustee is untenable. Therefore, he sought to allow the writ petition.
6. Learned HCGP supporting the impugned orders contended that the if the petitioner is aggrieved by the appointment of respondent No.1/Madku Raghuveera Rao, as hereditary trustee, the eldest son of Madku Govinda Rao, it is for him to establish how respondent No.1/Madku Raghuveera Rao, is not entitled to hereditary trusteeship. Hence, he sought to dismiss the writ petition.
7. Having heard the learned counsel for the parties, it is undisputed fact that the father of the petitioner and respondent No.1 by name, Madku Govinda Rao who was functioning as hereditary trustee of the said temples, Karkala Taluk, Udupi District, who died on 22/08/1997. The Deputy Commissioner after considering the entire material on record and exercising powers under the provisions of Section 47 (4) of the Madras Hindu Religious Institutions and Charitable Act, 1951, appointed respondent No.1/Madku Raghuveera Rao, the eldest son of Madku Govinda Rao, as hereditary trustee. It is also not in dispute that the order passed by the Deputy Commissioner dated 02/04/2007 was the subject matter of the appeal before respondent No.3. The respondent No.3 on considering the entire material on record categorically recorded a finding that the father of the petitioner and respondent No.1/Madku Raghuveera Rao, was a hereditary trustee (moktesar) who died on 22/8/1997. Since no objection was filed by any member of the family, the Deputy Commissioner proceeded to appoint respondent No.1/ Madku Raghuveera Rao, eldest son of the as Madku Govinda Rao, as hereditary trustee under Section 47 of the Act. The appellate authority has categorically recorded a finding as under;
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It is needless to observe, that it is always open to the petitioner to approach the competent Civil Court for the appropriate relief in accordance with law.
Sd/-
JUDGE Msu