Nirvanappa N.M. vs Krat and Others

This petition is concerned with the validity of an enquiry directed under S. 17 of the Mysore Religious and Charitable Institutions Act, 1927 (shortly called as "the Act") against the management of a Mutt called "Sri Nirwanaswamy Mutt" ("the Mutt").

The matter arises in this way:

The petitioner and respondent-4 are closely related to each other and equally interested in the renovation and improvement of the Mutt. They wanted to provide a face lift to the Institution by constructing a "Gopuram" and a "Mahadwara". The petitioner is the Vahivatdar of the Mutt and so managing its affairs. Respondent-4 in turn contributed in cash to meet the construction costs and also gave his consent for the sale of a property of the Mutt.

When the construction was in progress on one side, Respondent-4 started suspecting the bonafides of the petitioner, which gradually led to bickering between the parties and culminated in a complaint before the Commissioner for Religious and charitable Endowments. The complaint was filed on April 25, 1973 by Respondent-4 under Ss. 14, 17, 18 and 26 of the Act alleging inter alia, that the petitioner has not constructed the "Gopuram" and "Mahadwara" and misappropriated the amount earmarked for that purpose. He also requested the Commissioner to hold an enquiry into the mismanagement of the Mutt and to call upon the petitioner either to complete the construction or to deposit the sum entrusted to him.

The abovesaid complaint was transmitted to the Assistant commissioner, Chickmagalur for enquiry. In an enquiry which followed thereon, the petitioner while denying the allegations made against him, contended that it is a private Mutt over which the statutory authorities have no jurisdiction to hold an enquiry into its affairs. The Assistant Commissioner accepted the objection and made an order dated April 30, 1974 rejecting the complaint.

Respondent-4 evidently was not satisfied with the order of the Asst. Commissioner. He appealed to the Deputy Commissioner under S. 38(1) of the Act. The Deputy Commissioner altogether took a different view and I will refer to its detail in a moment later. He accepted the appeal and directed the Assistant Commissioner to hold an enquiry on the complaint of respondent-4. The petitioner then challenged the order of the Deputy Commmissioner in a revision petition before the Karnataka Revenue Appellate Tribunal. The Tribunal just agreed with the view of the Deputy Commissioner without contributing to the reasons thereof and dismissed the revision.

The order of the Deputy Commissioner as affirmed by the Tribunal has been called into question in this writ petition.

Upon the arguments addressed by Sri Thilaka Hegde, counsel for the petitioner and the Government pleader for respondents 2 and 3, the primary question that arises for decision is whether S. 17 of the Act could be invoked to hold an enquiry against the management of the Mutt and if not, whether any other provision under the Act is attracted to the case.

I may now refer to the reasons given by the Deputy Commissioner for allowing the appeal of respondent-4. The reasons may briefly be summarised as follows:

That the Mutt is a religious and charitable institution. It was dedicated for the benefit of a section of the public. Respondent-4 has contributed Rs. 23,000 for constructing the "Mahadwara" and "Gopuram". That contribution was an endowment for carrying out a religious object. A bouse property was also endowed to the Mutt by the members of the petitioner''s family. The "religious and charitable institution" as defined under S. 2(1) of the Act includes "an endowment for carrying out any religious or charitable object" and since the contribution and gifts made are endowments, the Mutt is a religious institution.

The entire approach of the Deputy Commissioner as rightly contended by learned counsel for the petitioner appears to be one-sided and perhaps misconceived too. Respondent 4 might have contributed his mite towards the construction of the "Gopuram" and "Mahadwara", but his contribution alone or as a matter of fact any other contribution by any other person is not relevant for determining the nature and character of the institution. The nature and character of an institution depends upon the nature of the trust created or the dedication made. I will go over this aspect again. For the present it may be sufficient to state that the petitioner''s case throughout has been that the institution in question is a Mutt and that too a private Mutt belonging to his family and the Assistant Commissioner has no jurisdiction to hold an enquiry into its affairs. Respondent-4 also accepts the institution as a Mutt, but he says that it is a religious and charitable institution. Both the parties have thus accepted the institution as a Mutt. But they seem to be not very much aware of the difference between private and public mutts. Equally that appears to be the case with the Deputy Commissioner and the Assistant Commissioner who have given divergent findings on the character of the Mutt.

I may just refer to the line of distinction between private and public Mutt for guidance of the parties and authorities. Whether a particular Mutt is private or public, would depend upon the construction of the grant, if there was one, and if there was no grant by which it was founded, then on the custom and usage of the institution. This vital distinction is succinctly set out in a passage in B.K. Mukherjea''s Hindu Law of Religious and Charitable Trusts, 4th Edn. page 386.

"A debutter endowment, as has been said already, can be either private or public. Does such distinction exist in the case of Mutt? As a matter of law, there is no reason why Mutts also could not be classified as public and private. A public trust is created for the benefit of the public generally or of a section thereof, which consists of. an uncertain and indeterminate body of persons. In a private trust the beneficiaries are a defined body of persons such as members of the family and the like. The formalities for the dedication of a Mutt which I have dealt with in the introductory lecture go to show that Mutts may be dedicated for the use of ascetics generally. If that is the case, such Mutts would be regarded as public institutions. Mutts have generally Sadavrats or arrangements for feeding and giving shelter to wayfarers and ascetics attached to them. They may also have temples to which the public is allowed access. Such circumstances might indicate the public character of the endowment, but nevertheless it is not impossible to have a private Mutt where the endowment is not intended to confer benefit upon the public generally, or even upon the members of a particular religious sect or order. Examples occur where the founder may grant property to his spiritual preceptor and his disciples in succession with a view to maintaining one particular spiritual family and for perpetuation of certain rites and ceremonies which are deemed to be conducive to the spiritual welfare of the founder and his family. In such cases, the original grantor and his descendants are the only persons interested in seeing that the institution in kept up for their benefit. In cases like these, even if a few ascetics are fed occassionally or a water pandal is erected during the hot season to supply drinking water to thirsty pilgrims, they are not to be regarded as independent charities in which any class of public can claim any direct interest. Such charities appertain to a private debutter as well."

I leave it at that and turn now to examine the validity of the enquiry ordered under S. 17 of the Act. I make it clear that I express no opinion as to whether the Mutt is private or public. It is not necessary to determine that question in view of the limited contention urged before me.

S. 2(1) defines "religious or charitable institution" to include ''an endowment for carrying out of any religious or charitable object''.

S. 2(2) defines "Muzrai Institution" to mean ''every Matha, temple, mosque, or other place of worship or religious service, every chatra or house of feeding or rest for travellers with or without charge, or other institution of a religious or charitable nature, etc., etc.,"

S. 2(3) defines "Muzrai officer" to mean ''the Deputy Commissioner of the District in which any religious or charitable institution or the whole or any part of the property thereof is situate''.

It may be seen from these definitions that Mutt is a Muzrai instituion.

Section 17 reads:

"When it is brought to the notice of the Muzrai officer that any religious or charitable institution dedicated for the benefit of the public or a defined section of the public or any property pertaining thereto is being grossly mismanaged, he may institute an enquiry into the truth of the allegations against the persons in possession and management of the property or the Institution."

Section 26 reads:

When on complaint made or information furnished in writing by disciples or other persons interested in any Matha or other similar institution, the Government has reason to believe that the Mathadipathi or the head of such other institution has been grossly mismanaging the property of the institution or has alienated or is attempting to alienate the whole or any part of such property for improper purposes, the Government may order an enquiry by a committee of not less than three persons, one at least of whom shall, whenever possible be a disciple of or a person interested in, the Matha, or other institution as the case may be, provided he is not a whole-time servant of the Government.

S. 17 is in Chapter III and S. 26 is in Chapter IV. S. 24 provides that the provisions of Chapters II and III are not applicable to Mutts and other institutions of a similar nature or to the property belonging to them which are in the possession of the Mathadipathies or other persons entitled by law or by general or particular usage to exercise powers of management or owner-ship. S. 17 thus stands excluded in its applicability to Mutts. The Act provides separate machinery under S. 26 in regard to Mutts or other similar institutions. S. 26 confers power on the Government to order an enquiry by a committee of not less than three persons, one at least of whom shall be a disciple of or a person interested in the Mutt. This mode of enquiry is quite different from the one prescribed under Section 17 of the Act. There is no uncertainty or ambiguity in this aspect. It calls for an application of the correct provision which the Legislature has provided and does not involve any interpretation. We cannot therefore, by any canon of construction bring into operation S. 17 by treating the Mutt as a religious or charitable institution, when the Mutt is expressly covered by S. 26 of the Act. It must logically follow that the enquiry directed by the Deputy Commissioner and upheld by the Tribunal cannot be sustained when the parties accept the institution in question as a Mutt.

In the result, the rule is made absolute; the order of the Deputy Commissioner and the Tribunal are quashed, with no order as to costs.