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Judgment
Anand Byrareddy, J.—1. Heard the learned counsel for the petitioners, Respondents 3 to 6 and the learned Government Pleader.
The first petitioner claims to be the Dharmadarshi of a registered Trust known as Shree Chowdeshwari Temple Seva Samithi Trust. The second and the third petitioners claim to be office bearers. It is claimed that the Trust had been created to manage the affairs of ''Shree Chowdeshwari Temple'' situated at Manniganahalli Village, Kudur Hobli, Magadi Taluk. The said Trust has come into existence in the year 2005 and it is under a registered deed. The petitioners have jointly filed this writ petition challenging the order passed by the first respondent, as there is no conflict of interest between the petitioners.
The respondents 3, 5 and 6 are the sons of late Mari Channaiah and Respondent No. 4 is the son of late Chikka Gangaiah. The said Chikka Gangaiah had died about 8 years prior to the petition. Shree Chowdeshwari Temple is said to be a private temple which has been in existence for over 150 years. The temple is said to be ancient and famous in the entire Magadi taluk. It is stated that the temple conducts annual rituals during Ugadi, Deepavali and Dasara festivals. On 20.02.1925, one late Patel Byrappa who was a resident of the said village, had executed a registered sale deed in favour of the Temple to an extent of 3 acres 21 guntas of land in Sy. No. 102 of Manniganahalli Village, pursuant to which the Temple had become the owner of the said land. This is evident from the pahanis and Record of Rights for the relevant period, namely 1970-71 to 1975-76, showing the name of the Temple in Column No. 9.
It is claimed that after the petitioners took over the affairs of the Temple, the petitioners as trustees, sought to effect change of khata, which stood in the name of the Temple, into the name of the Trust. It was then that they were informed that the khatha had already been transferred in favour of Respondents 3 and 4 and the father of Respondents 5 and 6. The petitioners then made enquiries and investigation. It was then found that the father of Respondent No. 4 and grandfather of Respondents 3, 5 and 6 had approached the first respondent by filing an application under Section 4 of the Mysore (Religious & Charitable) Inams Abolition Act, 1955 (hereinafter referred to as ''the Mysore Act'', for brevity) and Chikka Gangaiah had tendered evidence before the first respondent and had examined a witness Gangappa to support his claim. It transpires that the first respondent, without following the procedure contemplated under the Land Reforms Act, 1961, had passed an order dated 27.09.1987 granting occupancy rights in favour of late Chikka Gangaiah. It is claimed that though the first respondent had passed an order confirming occupancy rights in favour of late Chikka Gangaiah in the year 1987, his name did not find a place in the pahanis and it is only in the 1993-94 when Chikka Gangaiah was still alive, the name of Shri Chowdeshwari Devaru has been rounded off in Column No. 9 and the names of Respondents 3 and 4 and the father of Respondents 5 and 6 have been inserted. The petitioners claim that though the order impugned in the petition has been passed in the year 1987, the petitioners were totally unaware of the said proceedings and had learnt about such changes only in the year 2005 and secondly, the impugned order had been passed without following the procedure contemplated and hence, the petitioners claim that the petition cannot be rejected on the ground of delay and laches. Even assuming that there was delay, the same would have to be construed liberally, for otherwise, the land would fall into the hands of the respondents illegally and therefore, the petitioners are before this Court.
The learned counsel for the petitioners would submit that from an examination of the record, it would be evident that the respondents or their predecessors could not have claimed the land as tenanted under the provisions of the Mysore Act, since under Section 4, it is necessary that the respondents or the occupants demonstrate that they had been holding the land immediately prior to the vesting of the land in the State with the coming into force of the Act and the date of vesting as notified is 1.7.1970. And even as per the records maintained which are made available by the learned Government Pleader, it is seen that Respondent Nos. 3 and 4 and the father of Respondents 5 and 6 are shown as occupants only after the vesting of the land as on 1.7.1970. Therefore, the primary requirement of demonstrating that the occupants were holding the land as on the appointed date, is not forthcoming and on that ground alone, the petition would have to be allowed, as the Tribunal was in error in holding that the respondents had demonstrated their possession and occupation of the land as on the date and further, the temple was never represented before the Tribunal and in the absence of any representation on behalf of the temple, the proceedings having been allowed in favour of the respondents, is unilateral and wholly illegal. The temple was a private temple and was endowed to the deity and could not have been claimed by the respondents unilaterally without establishing the tenancy and more particularly, on the ground that the respondents were holding the land as on the date of vesting. When these basic requirements had not been demonstrated, the Tribunal was not justified in granting valuable land belonging to the deity, in favour of the respondents.
The evidence tendered through one Gangappa was also not proof of such occupation and cultivation by the respondents, as Gangappa is shown to be a close relative of late Chikka Gangaiah and therefore, was an interested person who was fielded by the respondents. And, the Tribunal having allowed the claim of so-called ''kadim'' tenants in terms of Section 4, is not justified.
It is noticed that the respondents have not chosen to file any statement of objections. Though the learned counsel appearing for Respondent No. 6 would make a weak attempt to justify the impugned order, in the absence of any statement of objections, the defence that is sought to be pleaded by the respondents cannot be countenanced.
On the other hand, the learned Government Pleader would submit that there is a stray reference to the temple in question being a Muzrai temple, as the temple is sought to be represented by the Tahsildar. Therefore, the learned Government Pleader was directed to ascertain the basis on which the temple was being treated as a Muzrai temple.
The learned Government Pleader would submit that she had sought instructions from the concerned Tahsildar and is awaiting such instructions. This is unfortunate. There is no warrant to await instructions from the Tahsildar if the record does not disclose that it is not a Muzrai temple. There is no material apart from this stray reference to the Tahsildar as representing the temple and therefore, it cannot be concluded that it is a Muzrai temple.
The explanation to sub-section (3) of Section 1 of the Mysore (Religious and Charitable) Inams Abolition Act, 1955 would lay down that ''religious inam'' or ''charitable inam'' would mean a grant of a village, portion of a village or land entered in the Register of Inams, quit-rent register, alienation register, or any revenue account maintained by or under the authority of Government as Devadaya inam or Dharmadaya inam, as the case may be.
In that view of the matter, in the absence of any material referred to in the explanation, it cannot be straightaway presumed that the land in question was a muzrai temple. Even if there is any such claim by the State, it would have to be established, in accordance with law. That exercise not having been carried out, it cannot be declared that the temple in question is a Muzrai temple. In any event, the grant of occupancy rights in favour of respondents in respect of a valuable land, is without addressing the basic requirements of ''kadim'' tenant establishing the claim in accordance with Section 4 of the Act. That is plain from an examination of the record. It is ambiguously also claimed that the respondents may have been Archaks at the temple.
This again would give rise to a claim under Section 6-A, in which event, it would make things worse for the applicants. In that, Section 6-A contemplates two classes of claimants. Under sub-clause (i), it contemplates the claim by an Archak. Whereas, under sub-clause (ii), it contemplates any other person holding and cultivating the land which also requires that such person should have been continuously cultivating the land three years prior to the date of vesting. There was a doubt as to whether the requirement of cultivation for three years prior to the vesting would apply to an applicant under sub-clause (i). That has been settled by a Division Bench judgment of this Court in the case of Shivappa M.N. v. State of Karnataka & ors. , 1986 (2) KLJ 146, where a Division Bench of this Court has opined that not only would the requirement apply in respect of the claimants under clause (i) of Section 6A of the Karnataka (Religious & Charitable) Inams Abolition Act, 1955, but under clause (ii) as well on the reasoning. For otherwise, the reasoning would lead to an incongruous result if any other construction is applied. In that, an illustration is referred to, to point out this incongruity namely, if Archak or poojari referred to in clause (i) is entitled to occupancy rights in respect of the erstwhile inam land belonging to a temple even though he was not cultivating the land, the following questions would arise:
"(1) if any other person was actually cultivating the land and further he happens to be either the Kadim tenant or protected tenant or permanent tenant, then should he be evicted and whether occupancy rights should be given to the Archak, and if so, what is the extent of land in respect of which he can claim occupancy rights?
2) Can he claim occupancy rights in respect of all the extents of Inam lands belonging to the religious institution concerned?"
The other provisions of the Act, namely Sections 4, 5 and 5A expressly provide that the persons cultivating the erstwhile religious Inam lands in those capacities are entitled to secure occupancy rights. Certainly Section 6A is not intended to deprive the occupancy rights in respect of the persons who have been actually cultivating the lands as protected tenants or permanent tenants or kadim tenants and confer the occupancy rights on the Archak/Poojari, who had never cultivated the lands.
This would clearly indicate that if the respondents were claiming as Archaks or poojaris, they would also have to establish that they were cultivating the lands continuously for a period of three years prior to the date of vesting. On that count also, the respondents would not be entitled to claim occupancy rights.
Consequently, the petition is allowed. The impugned orders are quashed notwithstanding the delay in challenging the proceedings.