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Judgment
G. Narendra, J.—1. The appellant is before this Court being aggrieved by the Order of the learned Single Judge, dated 12.03.2013 rendered in W.P. No. 8695/2008 [GM-R/C].
The claim of the appellant is that he is a hereditary trustee and high priest and guru of Sri. Mylara Lingeshwara Swamy Devasthana, Mylara, Huvinahadagali Taluk, Bellary District. It is further averred that the appellant''s ancestors were being the spiritual heads of the aforesaid "Devasthana" which has a history of a 1000 years. It is further contended that the appellant is the present Peethadhipathi and sole trustee of the "Devasthana" and that the said "Devasthana" is being maintained and administered by the appellant along with the Executive Officer appointed by the 2nd respondent.
It is the case of the appellant that the "Devasthana" was earlier governed under the provisions of the Madras Hindu Religious and Charitable Endowments Act, Madras and the Rules and Bye-laws framed thereunder were made applicable to the appellant''s "Devasthana" and thereafter, a Scheme came to be settled vide proceedings dated 10.08.1926 and that the grandfather of the appellant was considered and admitted as the lawful sole trustee of the appellant''s "Devasthana" and by the said Scheme, certain religious powers, functions and duties were also conferred on the sole trustee.
It is contended that the Board of Commissioners for the Hindu Religious and Endowment, Madras proposed certain modifications to the Scheme stated supra and the said modifications came to be opposed by the hereditary trustee, which ended up in filing of the suit which was adjudicated in O.S. No. 20/1929. After considering the various documents, evidence adduced by the parties and considering all the relevant materials, the learned District Judge, Bellary, has passed the Judgment and Decree dated 12.08.1933, upholding the right of the trustee to perform certain religious functions, duties, etc., and the right to receive certain amounts from the devotees for performance of the said religious functions, duties, etc.
It is contended that vide Board Order promulgated on 13.05.1940 and in pursuance of the powers vested in the Board under Section 65-O(2)(3) of the Madras Act II 1927, the Board has defined the powers and duties to be exercised and performed respectively by the Executive Officer and the Trustees and one such function was that the trustee shall be joint custodian of all the movable and immovable properties of the "Devasthana" including jewels, gold and silver jewels should be kept in the iron safe with double locks and one key should be with the trustee or his agent and the other should be held by the Executive Officer.
It is also contended that again vide Board Order No. 67 dated 19.01.1953, the trustee and the Executive Officer has been given joint custody of the jewels, movables, etc., and it was also stipulated that the Executive Officer shall prepare the cheques in installments for the funds required and obtain the signature of the hereditary trustee and withdraw the amount from the bank and in consonance with this order, the practice was followed for the last several decades.
It is contended by the appellant that even after the State reorganization, the "Devasthana" in question was administered and managed as per the provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951 and the Scheme that has been framed thereunder. It is further contended that the application of the provisions of the Madras Act came to be repealed on coming into force of the Karnataka Hindu Religious and Charitable Endowment Act [hereinafter referred to as "the Act" for short] in the year 1997 and it is also contended that in the year 2011, Section 25-A of the Act came to be incorporated whereby the right and interest of the hereditary trustee have been protected.
It is contended by the appellant that though the hereditary trustee under Order 67 dated 19.01.1953 is a joint signatory of the cheques for withdrawal of the funds in the account of the "Devasthana", the 2nd respondent-Commissioner vide communication dated 09.08.2005 directed the Executive Commissioner to takeover and maintain the accounts of the petitioner''s "Devasthana" and in view of the same, the 2nd respondent got issued another communication to the bankers wherein the "Devasthana" Trust was holding and operating bank accounts. By the said impugned communication dated 08.05.2006, the Manager of Pragati Grameena Bank, Mylara was asked to terminate the joint operation of the accounts and that it was further intimated that the Executive Officer alone would be operating the accounts and that the hereditary trustee is no more joint signatory and by the said impugned communication, the 2nd and 3rd respondents had put an end to the tradition of more than 60 years and the same is contrary to the Scheme and the Order No. 67 of 1953 mandating hereditary trustee as the joint signatory to the cheques. He would submit that the impugned communication is bad in law as the institution is not a declared institution under the provisions of Section 42 of the Act. That being the case, the impugned communication is illegal and unsustainable. It is further contended that the Executive Officer of the "Devasthana" is not an entity under the Act, but a care taker under the Scheme settled under the Madras Hindu Religious and Charitable Endowments Act and he would submit that the Executive Officer is bound to act in accordance with the said Scheme and also in consonance with the Judgment and Decree rendered by the learned District Judge, Bellary in O.S. No. 20/1929. He would further asserts that the repealing of the Madras Hindu Religious and Charitable Endowments Act by the Karnataka Hindu Religious and Charitable Endowments Act is in no way detrimental to the efficacy or the legal sustenance of the settled Scheme or the Judgment and Decree rendered in O.S. No. 20/1929 as the Scheme is not repugnant to the objectives or the provisions of the "Act". He would strenuously contend that any Executive Officer of the "Devasthana" is strictly bound and is required to act in consonance with the settled Scheme and the Judgment and Decree in O.S. No. 20/1929 and it is not open for him to invoke the provisions of the Karnataka Hindu Religious Institutions and Charitable Endowments Act and he would submit that in the light of the same, the present communication by the respondents 2 and 3 is tainted with the illegality and is unsustainable in law.
Per contra, learned Government advocate would vehemently refute the contentions on behalf of the appellant and he would submit that the said "Devasthana" has been notified as an institution in exercise of the powers conferred by Section 23 of the Act. That the Government has published the list vide notification No. RD 87 MUAABI 2012, Bangalore, dated 29th September, 2012 and that the petitioner''s "Devasthana" is found at Sl. No. 5. He has also placed a copy of the notification before this Court. A perusal of the same would demonstrate that the notification has been issued with retrospective effect from 01.05.2003. He would also place a copy of other notification bearing No. KumE 62 MuSeVi 2010, dated 25.08.2010 issued by the 2nd respondent, whereby the person at Sl. No. 2 has been posted as the Executive Officer of the shrines situate in Hoovinahadagali. The said notifications have been taken on record.
It is on these grounds the Principal Government Advocate would submit, that in the light of the notifications of the institution of the "Devasthana" as a notified institution, one of the powers vested in the Executive Officer is operation of the Bank account of the institution. In this regard, he would draw our attention to sub-Rule (12) of Rule 33-B of the Karnataka Hindu Religious Institution and Charitable Endowments Rules, 2002 [hereinafter referred to as "the Rules" for short]. The said Rule reads as follows:
"33-B. Powers and Functions of the Executive Officer.--
(12) The financial transaction and operation of the bank account of the institution shall be done by the Executive Officer."
Learned Government Advocate would also draw our attention to the provisions of Section 33 of the Rules, which empowers the respondents, particularly the 1st respondent to publish a list in respect of each Revenue Districts, a list of all charitable institutions and Hindu Religious Institutions including all institutions governed by the Madras Hindu Religious and Charitable Endowments Act [Section 23(c) of the Karnataka Act]. He would further draw the attention of the Court to the provisions of Section 24-A of the Act, which enables the 1st and the 2nd respondents to appoint any Officer to be the Executive Officer to a notified institution or to a group of notified institution. He would further submit that the impugned communication are legally tenable and sustainable on a conjunctive reading of the pleadings and the provisions of Section 23(c) and 24-A of the Act.
Learned counsel for the appellant would retort that appointment of the Executive Officer is illegal as it is not in consonance with the Order passed and the Scheme settled under the previous enactment.
We have bestowed our detailed consideration to the various contentions and submissions placed before this Court by the appellant and the respondent.
Learned single Judge after careful consideration has opined that the respondents, more particularly the 2nd and the 3rd respondents have acted in consonance with the provisions of the Act of 1997, more particularly Section 36 of the Act and Rule 33(1) of the Rules. The learned single Judge has concluded that the petitioner has not challenged the appointment of the Executive Officer. The learned single Judge has also relied on the provisions of Section 37 of the Act and Rule 33 of the Rules, which enable the Executive Officer alone to transact the accounts and get them audited annually and has opined and held that the respondents cannot be faulted for the order/letter dated 09.08.2005 and the consequential communication by the 3rd respondent dated 08.05.2006. We are in agreement with the findings of the learned single Judge as it is seen that though the petitioner has raised innumerable contentions, admittedly he has not laid any challenge to the posting of the Executive Officer.
As per the Scheme of the Act, Section 23 of the Act empowers the State Government to publish by notification the list of all Charitable Institutions and Hindu, Religious Institutions and Endowment within its territory. Even such institutions and temples which were governed by repealed enactment. In the instant case, Section 23(c) of the Act empowers the State Government to Publish by notification a list of all Institutions governed by then Madras Hindu Religious and Charitable Endowment Act, 1951 as a notified institution. Once such a notification is issued, the appointment of an Executive Officer is a consequential act and under the Scheme of the Act, Section 24-A vests in the State Government or the Commissioner to appoint any Officer to be the Executive Officer to a notified institution or to a group of notified institutions. Learned counsel for the appellant fairly admits that the appellant/petitioner neither challenged the inclusion of the "Devasthana" into the list of notified institutions, which has been published in the gazette notification nor challenged the order/proceedings relating posting of the Executive Officer. In the light of the said submission, we do not find any merit in the contentions of the appellant. The respondents have exercised the powers under Section 23 of the Act and the said exercise remains unchallenged even today. The appointment and posting of the Executive Officer is consequential to the act of listing the "Devasthana" as a notified institution. Neither the act of notifying the institution nor consequential act of appointment of the Executive Officer under the provisions of Section 24-A of the Act are called in question in the present proceeding. That being so, we do not find any good ground to invalidate an act of the Executive Officer in the light of the powers vested in him under sub-Rule (12) of Rule 33-B of the Rules.
In the light of the above findings, we do not find any good ground, which warrants interference at the hands of this Court. Accordingly, the appeal is dismissed as devoid of merits. There is no order as to costs.