Secretary, Home (Endowments), Andhra Pradesh v. Digyadarsam Rajindra Ram Dasjee

Vaidialingam, J. This appeal, by certificate, is directed against the order of the Anclhra. Pradesh High Court, allowing a writ petition, filed by the respondent, under Art. 226 of the Constitu-tion.

The facts leading up to the filing of the Writ Petition, by the respondent, may be briefly indicated. In respect of Sri Sw~m i Hathiramji Math. Tirumalai, Tirupati, disputes arose regardm!! the succession to the office of the Mahan't of the Math, after the death, in 1947, of the then Mahan!, Prayag Dossji. An agree~ ment seems to have been arrived at, on October 29, 1947, laying down 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. lhe 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 Maha:nt. 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 them agreed that Chetam Das was entitled to' continue as Mahan!, and tllat, after his death, the respondent was to succeed as Mahant. In view of this agreement, the respondent got dismissed, as settled, 0.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 It about the person who was to succeed as Mahant. The Assistant

Commissioner, H.R. & C.E., took action, under s. 53 of the Mad-ras Hindu Religious & Charitable Endowments Act, 195 l (Act XIX of 1951), (hereinafter called the Act), which is applicable to the State of Andhra Pradesh, and assumed charge, on March 2-4, 1962, of the Math and its properties. The respondent filed. oil March 26, 1962, 0.S. 24 of 1962, for a declaration that he is the rightful successor to the office of the Mahant of the Insti-tution, in questioi_i. 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 a1suminir charge. o~ the Math, under s. 53 of the Act, by the Assistant Com'!J.1Ss10ner. The o.s. Government stayed further proceedings: and, m consequence, 24 of 1962, was withdrawn, by the res-pondent, on April 24, 1962. The Government also passed an ord.er, on Jun~ 5, 1962, stating that it was necessary to take act1?n, for makmg suitable arrangements for the proper adminis-tratmn of the Math and its endowments, till the civil court decided as to "'.ho should succeed to the office of the Mahan!. Tn this connection, the State Government referred to an objection, receiv-ed, .from one Devendra Dass, stating that he is the proper person entitl~ to succeed to the office of the Mahant. Ultimately, by the S3Jd order, the Government appointed the respondent, as an 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, Devendrn 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 Mahan!, on the death of Chetam Dass. In the first suit he was represented, by one Mukundd Doss, as next friend, an\i in the second suit he was represented by one Bhagwant Doss, as the next friend. When Devendra Doss attain-ed majority, later on, he preferred to continue 0.S. 50 of 1962, and therefore 0.S. 57 of 1962 was dismissed, as unnecessary.

Ou 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 ka'1ikkas received by him. In the said order, the Government also proceed-ed, on the basis that it has no jurisdiction to appoint an interim Mahan! when action is taken, under s. 53 of the Act.

On receipt of this ,.notice, the respondent filed writ petitio11 No. 1534 of 1964, challenging the said order. His claim appear; to have been. tha.t he had succeeded to· the office of Mahan!. 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, aJ!GI; .. 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 sus-pension. In view of this writ petition, the earlier writ petition no. 1534 of 1964, was dismissed, as infructuous, on. April 14. 1966.

In the meanwhile, Bhagwant Doss, who had originally institut-ed O.S. no, 57' of 1962, as the next friend of Devendra Dass, and which suit was;got dismissed by the minor, after attaining majo-Tity, instituted•another suit, O.S. n9. 69 of 1965 on S~ptember 29 1965 clainiing in his own right to be the person en!ltled to sue-ceed 1to the office of Mahant. This suit appears to be still pend-

SECRETARY v. RAJINDRA RAM (Vaidialingam, !.) 895 Ing. But O.S. 50 of 1962, which was decided to be continued, by Devendra Doss, was contested by the respondent and, ulti-mately, 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 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 cir-cumstance that the suit filed by Devendra Doss, 0.S. 50 of 1962, had been dismissed and the Court had accepted his title to hold the office of the Mahan!, on the basis of the Panchayat Agree-ment, dated October 29, 1947, as well as the agreement, dated July 15, 1961, entered into between him and the then Mahan!, 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 ground that when Chetam Doss died, and the respondent attempt-ed 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 math, and there is also a dispute, between the respondent amt 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 assumptiQn 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 claimino in himself th,!! right to succeed, as a trustee, was still pe~ding and that also shows there is a dispute, regarding succession to the office <;>f the trustee. The appellant has also urged, that in any event, masmuch as the respondent has been appointed to manaoe the institution, by the department, under s. 53 of the Act, and, ~s he was continuing in such m~na.gei:iie?t by virtue of such appoint-ment, the State had ample 1unsd1ct10n 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' Agree:nent of October 29, 1947, and the compromise agreement, dated July 'ls, l 961. Therefore, it cannot be said that there was any vacancy in the oflice of the trustee of the Math, so as to enable the appel-lant 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 suc-ceeded 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 placinl( 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 their order, dated June 5, 1962, whereit~ they had categorically stated that the civil Court's decision will be conclusive and final, regard-ing 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 0.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. Ram 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 deci· sion, in O.S. 50 of 1962, has not become final, inasmuch as Dc-vendra 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 of the Math, before the Gover.nment, the writ petition, No. 602 of I 962, filed by the said party, as 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 functionin!! as Manager of the institution, by virtue of his appoint-ment, on June 5, 1962, by the Government, subject to the condi-tions mentioned therein, the Government was competent to take disciplinary action, as against the respondent, for breach of those conditions.

Mr. r. V. Rangacharya, learned counsel for the respondeni, fully supports the reasons, given by the learned Judges of the High Court, for accepting the claim made by his client. in the writ petition.

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 writ-ing, 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 els. (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,

the Assistant Commissioner may take such steps and pass such order as he thinks proper for the tempo-rary 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 Commis-- sioner.

. (2) Upon the receipt of such report, if the Commis-s1one~. aft71" makinl! such inquiry as he deems neces-s_ary. 1s satisfied that an arrangement for the administra-tion of the math and its endowments or of the specific· endowment, as the case may be, is necessary. he shall m~~e such arrangement as he thinks fit until the dis-abzhty of the trustee ceases or another trustee succeeds to the office, as the case may be.

. (3) In making any such arrangement, the Commis-sz~n~r shall have due regard to the claims of the-d1sc1ples of the math, if any.

( 4) Nothing in this section shall be deemed to affect anything contained in the Madras Court of Wards Act, 1902."

Section 5 3 (! ) contemplates four contingencies, under which the Assistant Commissioner may talce 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 sub-section. Before that provision can be invoked, two conditions arc necessary, vi:.., (a) a vacancy must have occurred, in the office of the trustee of a math; and (b) there must be a dispute, re'- pccting the right of succession to such office. In this case, it is possible to say, in view of the claim made by Devendra Dass. and the litigations referred to, above, that there was a dispute respecting the right of succession to the office of the Mahan!. But in order to give jurisdiction to the appellant to take action, under the first contingency, referred to in sub-s. ( l) 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 th~ otlicc of the trustee of tht"> Math, on March 18, 1962, when Chctam Dass died. On the other hand, according to the res-pondent, there was no vacancy in the office cif the Mahant, at that time. because, on the death of Chetam Dass, the respondent succeeded· to the office of the Mahan!. Therefore, the point t<1 he considered is, as to whether a vacancy has occurred, in the ofiice of the trustee of the Math, on March 18, 1962. That 1here must be an actual vacancy, un-filled, is clear, from the word-ing of s. 53.( l), 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 suc-cession to such office. That is, the office has not been filled in. by anybody having a prima facie legal, right to assume manage-ment. Similarly, the second contingency, contemplated under '· 53 (1). when assumption of management can be made by th~ Department, is when a vacancy· occurs in the office of a trustee of a Math and when such vacancy cannot be filled up imme-diately. This clearly shows that there must be a vacancy, as a fact, in the sense that nobody with any legal right has assumed ,1fficc of the trustee of a Math.

In this case, as we have pointed out earlier, the High Courl has accepted the claim of the respondent that by virtue of the Panchayat agreement dated October 29, 1947, and the compro-mise agreement, dated July 15, 1961, the respondent has suc-ceeded to the office of the trustee of the Math, on March 18. 1962, on the death of Chetam Dass. The supreme authority . . according to the High Court, the Akada Panchayat, has also

SECRETARY l'. RAJINDRA RAM ( Vaidia/ingam, J.) 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 l 962, 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 litiga-tions, the view of the High Court that there j_s no vacancy in the office of the trustee of the Math which alone will give jurisdiction to the appellant to take action under s. 5 3 ( 1), can be accepted as 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 of the Math, by virtue of the appointment made, by the State Gov-ernment, on June 5, 1962, and therefore tile State Government is entitled to take disciplinary action against him for breach of conditions, under which he was holding that ofllce. Counsel also invited our attention to the averments made by the respondent himself, in Writ Petition No. 602 of 1962, that the State Gov-ernment has appoin'ted him as interim Mahan!. 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 hi' right to function, as Mahant, cannot be disturbed, as the State Government has appointed him as 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\ o.nty nght to fu~ction as Manager of this institution, is cxclu- "vely o.n the basis of the Government order, dated June 5, 1962. there will be considerable force in the contention of learned coun-sel for th~ app7llant th~t the State Govemment has got jurisdiction to ta~e d1sc1phnary action, against the respondent. But the fact> m this ca.se show that the position is entirely different. If tile ;cspondent, as held by the High Court-with which view we nrc m agreement-has succeeded to the office of the trustee of th~ Math .. on the death ~f Chetam Dass, on March 18, 1962, in hi' own right, the !11e.re c1r~umstance that the Government also passc< ar:i order appomtmg him as interim Mahant or Manager ht,,. will not take away the right of the respondent to functlo1; "a~ trustee, on the basis of his original right. Once it is held that t~c respondent i~ not holding the office of the Mahant. exclu-II " vely ~n the basis of the order of the Government, dated June 5.

1962, 11 fo!lows that the appellant has no jurisdiction to pass an order, placing the respondent under suspension, as that \irtually a111ounts to a removal of the trustee of a Math. The removal of a trustee of a Math can be done only in the manner, and in the A circumstances, mentioned in s. 52 of the Act. Therefore, the • view of the High Court that the order of the Government, placing the respondent under 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. 8

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2586 of 1966.

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. Nair, for the appellants.

l. V. Rangacharya, B. Parthasarathy and P. C. B/wrtari. for the respondent.