ivil Appeal No 2586 of 966
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 AVV Nab  for the appellants
1 V Rangacharya B Parthasarathy and PC Bhartari
for the respondent
The Judgment of the Court was delivered by Vaidialingam J
This appeal by certificate is directed against the order of the Andhra Pradesh High Court allowing a writ petition filed by the respondent under article 226 of the Constitution
The facts leading up to the filing of the Writ Petition by the respondent may be briefly indicated
In respect of Sri Swami Hathiramji Math
Tirumalai Tirupati disputes arose regarding 89 3 the succession to the office of the Mahant of the Math after the death in 1947 of the then Mahant Prayag Dossji
An agreement seems to have been arrived at on October 29 1947 laying town 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
The respondent filed O section 84 of 1958 in the Subordinate Judge s Court Chittoor for a declaration that he is entitled to succeed to the office of Mahant
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 theta agreed that Chetam Das was entitled to continue as Mahant and that after his death the respondent was to succeed as Mahant
III view of this agreement the respondent got dismissed as settled OS 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 HR  CE Andhra Pradesh received telegram stating that there was a dispute about the person who was to succeed as Mahant
The Assistant Commissioner HR  CE took action under section 53 of the Madras Hindu Religious  Charitable Endowments Act 1951 Act XIX of 1951
hereinafter called the Act which is applicable to the State of Andhra Pradesh and assumed charge on March 24
1962 of the Math and its properties
The respondent filed
on March 26 1962 OS 24 of 1962 for a declaration that he is the rightful successor to the office of the Mahant of the Institution in question
The Commissioner HR  CE was made a party to the suit
The respondent also filed a revision before the Government on April 18 1962 challenging the assuming charge of the Math under section 53 of the Act by the Assistant Commissioner
The Government stayed further proceedings and in consequence OS 24 of 1962 was withdrawn by the respondent on April 24 1962
The Government also passed an order on June 5 1962 stating that it was necessary to take action for making suitable arrangements for the proper administration of the Math and its endowments till the civil court decided as to who should succeed to the office of the Mahant
In this connection the State Government referred to an objection received from one Devendra Dass stating that he is the proper person entitled to succeed to the office of the Mahant
Ultimately by the said order the Government appointed the respondent as an 894 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 Devendra Dass who was a minor had instituted two suits OS Nos 50 of 1962 and 57 of 1962 to declare him as the person entitled to succeed to the office of the Mahant on the death of Chetam Dass
In the first suit he was represented by one Mukundd Dos as next friend and in the second suit he was represented by one Bhagwant Doss as the next friend
When Devendra Doss attained majority later on he preferred to continue OS 50 of 1962
and therefore OS 57 of 1962 was dismissed as unnecessary
On 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 kanikkas received by him
In the said order the Government also proceeded on the basis that it has no jurisdiction to appoint an interim Mahant when action is taken under section 53 of the Act
On receipt of this notice the respondent filed writ petition No 1534 of 1964 challenging the said order
His claim appears to have been that he had succeeded to the office of Mahant
in his own right after the death of Chetam Dass and that no action can be taken under section 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 and 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 suspension
In view of this writ petition the earlier writ petition
No 1534 of 1964 was dismissed as infructuous on April 14
In the meanwhile Bhagwant Doss who had originally instituted OS No 57 of 1962 as the next friend of Devendra Dass and which suit was got dismissed by the minor after attaining majority instituted another suit OS No 69 of 1965 on September 29
1965 claiming in his own right to be the person entitled to succeed to the office of Mahant
This suit appears to be still pend 89 5 ing
But OS 50 of 1962 which was decided to be continued by Devendra Doss was contested by the respondent and ultimately dismissed on April 28 1966
It is stated that an appeal AS 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 HR  CE to take action under section 53 of the Act
The respondent also relied upon the circumstance that the suit filed by Devendra Doss OS 50 of 1962 had been dismissed and the Court had accepted his title to hold the office of the Mahant on the basis of the Panchayat Agreement dated October 29 1947 as well as the agreement dated July 15 1961 entered into between him and the then Mahant 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 round that when Chetam Doss died and the respondent attempted 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 nath and there is also a dispute between the respondent and Devendra Doss regarding the right of succession to such office
In view of the fact that the necessary conditions for invoking section 53 exist the assumption of management of the Math was taken over by the Assistant Commissioner HR  CE for the proper management of the institution
It was also pointed out that the suit instituted by Bhagwant Doss OS No 69 of 1965 claiming in himself the right to succeed as a trustee was still pending and that also shows there is a dispute regarding succession to the office of the trustee
The appellant has also urged that in any event inasmuch as the respondent has been appointed to manage the institution by the department under section 53 of the Act and
as he was continuing in such management by virtue of such appointment the State had ample jurisdiction 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 Agreement of October 29
1947 and the compromise agreement dated July 15 896 1961
Therefore it Cannot be said that there was any vacancy in the office of the trustee of the Math so as to enable the appellant to take action under section 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 OS 50 of 1962
The mere circumstance that after a person has succeeded 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 section 53 of the Act
The High Court is further of the view that the appellant s action in placing 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 wherein they had categorically stated that the civil Court s decision will be conclusive and final regardin 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 OS 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 Rain 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 decision in OS 50 of 1962 has not become final inasmuch as Devendra Doss who lost that litigation has filed AS 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 or the Math before the Government the writ petition No 602 of 1962 filed by the said party Lis 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 functioning as Manager of the institution by virtue of his appointment on June 5 1962 by the Government subject to the conditions mentioned therein the Government was competent to take disciplinary action as against the respondent for breach of those conditions
Mr 1
V Rangacharya learned counsel for the respondent of Lilly supports the reasons given by the learned Judges of the High Court for accepting the claim made by his client in the writ petition
897 The short question that arises for consideration is as to whether the Assistant Commissioner HR  CE had jurisdiction to assume management of the Math in question under section 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
The answer to the above question is to be decided by reference to section 53 of the Act
Section 53 of the Act
occurs in Chapter IV relating to Maths
Sub section
1 of that Section enables the commissioner or any two or more  persons having interest and having obtained the consent in writing 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 cls
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 temporary 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 Commissioner
2 Upon the receipt of such report if the Commissioner after making such inquiry as he deems necessary
is satisfied that an arrangement for the administration of the math and its endowments or of the specific  endowment as the case may be is necessary he shall make such arrangement as he thinks fit until the disability of the trustee ceases or another trustee succeeds to the office as the case may be
3 In making any such arrangement the Commissioner shall have due regard to the claims of the  disciples of the math if any 898 4 Nothing in this section shall be deemed to affect anything contained in the Madras Court of Wards Act 1902
 Section 531 contemplates four contingencies under which the Assistant Commissioner may take 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 subsection
Before that provision can be invoked two conditions are necessary viz a a vacancy must have occurred in the office of the trustee of a math and b there must be a dispute respecting the right of succession to such office
In this case it is possible to say in view of the claim made by Devendra Das
and the litigations referred to above that there was a dispute Tespecting the right of succession to the office of the Mahant
But in order to give jurisdiction to the appellant to take action tinder the first contingency referred to in sub section
1 of section 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 the office of the trustee of the Math on March 18 1962 when Chetan Das died
On the other hand according to the resPondent there was no vacancy in the office of the Mahant it that time because on the death of Chetan Das the respondent succeeded to the office of the Mahant
Therefore the point to be considered is as to whether a vacancy has occurred in the office of the trustee of the Math on March 18 1962
That there must be an actual vacancy unfilled is clear from the wording of section 531 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 succession to such office
That is the office has not been filled in
by anybody having a prima facie legal right to assume management
Similarly the second contingency contemplated unders
531 when assumption of management can be made by the Department is when a vacancy occurs in the office of a trustee of a Math and when such vacancy cannot be filled up immediately
This clearly shows that there must be a vacancy as I fact in the sense that nobody with any legal right has assumed Office of the trustee of a Math
In this case as we have pointed out earlier the High Court has accepted the claim of the respondent that by virtue of the Panchayat agreement dated October 29 1947 and the compromise agreement dated July 15 1961 the respondent has succeeded to the office of the trustee of the Math on March 18 1962 on the death of Chetan Das
The supreme authority
according to the High Court the Akada Panchayat has also 899 approved of the said appointment by resolution of the same date
We do not propose to consider the findings recorded in OS 50 of 1962 which are no doubt in favour of the respondent because that decision is the subject of an appeal in AS No 476 of 1966
Nor do we propose to consider the claim of Bhagwant Doss in OS 69 of 1965 which is still pending adjudication at the hands of the Court
But even without reference to those litigations the view of the High Court that there is no vacancy in the office of the trustee of the Math which alone will give jurisdiction to the appellant to take action under section 531 can be accepted its 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 or the Math by virtue of the appointment made by the State Government on June 5 1962 and therefore the State Government is entitled to take disciplinary action against him for breach of conditions under which he was holding that office
Counsel also united our attention to the averments made by the respondent himself in Writ Petition No 602 of 1962 that the State Government has appointed him as interim Mahant
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 his right to function as Mahant cannot be disturbed as the State Government has appointed him a  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 s only right to function as Manager of this institution is exclusively on the basis of the Government order dated June 5 1962 there will be considerable force in the contention of learned counsel for the appellant that the State Government has got jurisdiction to take disciplinary action against the respondent
But the facts in this case show that the position is entirely different
If the respondent as held by the High Court with which view we are in agreement has succeeded to the office of the trustee of the Math on the death of Chetam Dass on March 18 1962 in hi  own right the mere circumstance that the Government also passe an order appointing him as interim Mahant or Manager later will not take away the right of the respondent to function as trustee
on the basis of his original right
Once it is held that the respondent is not holding the office of the Mahant exclusively on the basis of the order of the Government dated June 5
1962 it follows that the appellant has no jurisdiction to pass an order placing the respondent under suspension as that virtually amounts to a removal of the trustee of a Math
The removal of 900 trustee of a Math can be done only in the manner and in the circumstances mentioned in section 52 of the Act
Therefore the view of the High Court that the order of the Government placing the respondent Linder 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


Summary:
After the death of the Mahant of Sri Swami Hathiramji Math Tirumalai Tirupati in 1947 an agreement was arrived at on October 29 1947 resolving certain disputes regarding the succession to the office of Mahant and laying down a procedure for choosing a successor when a vacancy arose
Furthermore the Akada Panchayat was constituted the supreme authority in such matters
One CD became the Mahant in 1958
The respondent challenged the succession by a declaratory suit but eventually there was a compromise and in an agreement dated July 15 1961 it was agreed that CD was entitled to continue as Mahant and that after his death the respondent would succeed him
On the death of CD on March 18 1962 the respondent claimed to have succeeded as Mahant in his own right and the Akada Panchayat approved the succession by a resolution on the same date
However the Commissioner Hindu Religious and Charitable Endowments Andhra pradesh having received a telegram disputing the respondent s claim took action under section 53 of the Madras Hindu Religious and Charitable Endowments Act XIX of 1959 and assumed charge of the Math and its property on March 24 1964
The respondent thereafter filed a suit for a declaration that he was the rightful successor
He also filed a revision before the Government challenging the action taken under section 53 whereupon the Government stayed further proceedings and the respondent therefore withdrew his suit
On June 5 1962 the Government issued an order stating that as there were disputes about who was the rightful successor until the Civil Court decided this question it was necessary to make suitable arrangements for the proper administration of the Math and its endowments it therefore appointed the respondent as interim Mahant subject to various conditions laid down in the order
in view of the respondent s attitude in the discharge of certain of his duties on August 22 1964 the Government passed an order directing him to show cause why the previous order of June 5 1962 should not he cancelled
The respondent filed a Writ Petition against this order claiming that he had succeeded to the office of Mahant in his own right and that no action could be taken by the Government under section 53 other appointing him as interim Mahant or cancelling such appointment  the High Court thereupon stayed further proceedings in pursuance of the notice pending the disposal of the writ petition
The State Government then passed a further order on September 9 1965 framing certain charge  against the respondent calling for his explanations to them Ind
at the same time placing him under suspension
The respondent filed a second writ petition challenging this new order whereupon the earlier writ petition was dismissed as infructious
The High Court allowed the second writ petition
892 It was condendcd on behalf of the appellant that i on the death of C D on March 181962 a vacancy occurred in the offire of Mahant and there was a dispute between the respondent and two other persons each of whom claimed the right of succession suits had been filed by each of those two persons to establish their claims and tithough these had been dismissed an appeal was pending in respect of one of them view of this the necessary conditions existed for invoking the power under section 53 for the proper management of the Math furthermore that inasmuch as the respondent had been appointed to manage the institution by the department under section 53 of the Act and as he was continuing in such management by virtue of that appointment the State had ample jurisdiction to pass orders either of suspending or even dismissing the respondent
HELD Dismissing the appeal The High Court had rightly held that there was no jurisdiction for the exercise of the power under section 53 of the Act
i Before section 53 can be invoked
two conditions are necessary viz a a vacancy must have occurred in the office of the trustee of a Math and b there must be a dispute respecting the right of succession to such office
In the present case although it was possible to say that there was a dispute resperting the right of succession to the office of Mahant the further condition that there must be a vacancy could not be said to have existed and the High Court had rightly accepted the claim of the respondent that by virtue of the Panchayat agreement of October 29 1947 the compromise agreement of Julv 15 1961 and the approval given to his succeession by the Akada Panchayat
he had succeeded as Mahant March 18 1962 on the death of CD 1898 B D H ii If the respondent had succeeded as Mahant on the death of CD in his own right
the mere circumsta nce that the Government also passed an order appointing him as interim Mahant later would not take away the right of the respondent to function as Mahant
Once it is held that he was not holding the office exclusively on the basis of the order of the Government of June 5 1962
it follows that the appellant had no jurisdiction to
pass an order placing the respondent under suspension as that virtually amounted 10
a removal of the trustee of a Math which could only be done in accordance with the provisions of section 52 of the Act
899 G 900 A