Case: Secretary, Home (Endowments), Andhra Pradesh Vs. Digyadarsam Rajindra Ram Dasjee

Vaidialingam, J. 1. 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. 2. 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 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 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 Chetam 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 Chetam Doss succeeded as Mahant. The respondent filed O. S. 84 of 1958, in the Subordinate Judges Court, Chittoor, for a declaration that he is entitled to succeed to the office of Mahant. The suit was resisted by Chetam Doss, 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 Doss, entered into a compromise, by virtue of an agreement, dated July 15, 1961. Both of them agreed that Chetam Doss was entitled to continue as Mahant, and that after his death, the respondent was to succeed as Mahant. In view of this agreement, the respondent got dismissed, as settled, O. S. 84 of 1958. 3. Chetam Doss 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. and C. E., Andhra Pradesh, received telegram stating that there was a dispute about the person who was to succeed as Mahant. The Assistant Commissioner, H. R. and C. E., took action, under Section 53 of the Madras Hindu Religious and Charitable Endowments Act, 1951 (Act 19 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, O. S. 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, H. R. and C. E., 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, O. S. 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 Doss, 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 interim Mahant, subject to the various conditions, laid down therein. Devendra Doss 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 Doss, 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 Mahant, on the death of Chetam Doss. In the first suit he was represented, by one Mukund Doss, as next friend, and in the second suit he was represented by one Bhagwant Doss, as the next friend. When Devandra Doss attained majority, later on, he preferred to continue O. S. 50 of 1962, and therefore O. S. 57 of 1962 was dismissed, as unnecessary. 4. On August 22, 1964, the Government passed an order, directing 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. 5. 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 Doss, 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, 1966. 6. In the meanwhile, Bhagwant Doss, who had originally instituted O. S. No. 57 of 1962, as the next friend of Devendra Doss, and which suit was got dismissed by the minor, after attaining majority, instituted another suit, O. S. 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 pending. But O. S. 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, A. S. No. 476 of 1966, has been filed, on November 17, 1966 against this decree, and, it is still pending. 7. The main contention, taken by the respondent, in writ petition 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 said 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. and C. E., to take action, under Section 53 of the Act. The respondent also relied upon the circumstance that the suit filed by Devendra Doss, O. S. 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 Doss. The respondent also relied upon the circumstance that his assumption of office, as Mahant, on the death of Chetam Doss has been approved on March 18, 1962, by the supreme authority namely, the Akada Panchayat. 8. The appellant resisted the claim of the respondent, on the ground 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 Math, 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, H. R. and 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, 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. 9. The learned Judges of the High Court have held that the respondent has succeeded as Mahant, on March 18, 1962, on the death of Chetam Doss by virtue of the Panchayat Agreement, of October 29, 1947, and the compromise agreement, dated July 15, 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 Judges Court, in favour of the respondent, in O. S. 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 appellants 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 Courts decision will be conclusive and final, regarding 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 petitioner, under suspension. 10. 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 decision, in 0. S. 50 of 1962, has not become final, inasmuch as Devendra 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 Government, the writ petition, No. 602 of 1962, 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 Doss, 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.11. Mr. V. Rangacharya, learned counsel for the respondent, 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. 12. The short question, that arises, for consideration, is as to whether the Assistant Commissioner, H. R. and C. E. 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, 1965. The answer to the above question is to be decided, by reference to Section 53 of the Act. Section 52 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 clauses (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. (4) Nothing in this Section shall be deemed to affect anything contained in the Madras Court of Wards Act, 1902. Section 53 (1) 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 sub-section. 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 Dass, and the litigations referred to, above, that there was a dispute respecting the right of succession to the office of the Mahant. But, in order to give jurisdiction to the appellant to take action, under the first contingency, referred to in sub-sec. (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 Chetam Doss died. On the other hand, according to the respondent, there was no vacancy in the office of the Mahant, at that time because on the death of Chetam Doss, 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 l8, 1962.That there must be an actual vacancy, unfilled, is clear, from the wording of Section 53 (1) 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 under Section 53 (1), 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 a fact in the sense that nobody with any legal right has assumed office of the trustee of a Math. 13. 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 Oct. 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 Chetam Doss. The supreme authority, according to the High Court, the Akada Panchayat, has also 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 1962, 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 Bhagwan Doss, in O. S. 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 58 (1), can he accepted as correct, for the other reasons, mentioned by us, earlier. 14. 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 Government, on June 5, l962, 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 invited 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 as interim Mahant. Therefore, the stand taken by the respondent in the said writ petition, must be understood in the said context. 15. No doubt, normally, if it is established that the respondents 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 Doss, on March 18, 1962, in his own right, the mere circumstance that the Government also passes an order appointing him as interim Mahant, or Manager, later, will (sic, not) take away the right of the respondent to function as trustee, on the basis of his original right. Once it is held that 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 a 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 under suspension is not valid, is correct.

Decision:
0[ds]That there must be an actual vacancy, unfilled, is clear, from the wording of Section 53 (1) 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 under Section 53 (1), 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 a fact in the sense that nobody with any legal right has assumed office of the trustee of a Math13. 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 Oct. 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 Chetam Doss. The supreme authority, according to the High Court, the Akada Panchayat, has also 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 1962, 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 Bhagwan Doss, in O. S. 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 58 (1), can he accepted as correct, for the other reasons, mentioned by us, earlierThe 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 as interim Mahant. Therefore, the stand taken by the respondent in the said writ petition, must be understood in the said context15. No doubt, normally, if it is established that the respondents 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 Doss, on March 18, 1962, in his own right, the mere circumstance that the Government also passes an order appointing him as interim Mahant, or Manager, later, will (sic, not) take away the right of the respondent to function as trustee, on the basis of his original right. Once it is held that 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 a 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 under suspension is not valid, is correctThe answer to the above question is to be decided, by reference to Section 53 of the Act. Section 52 of the Act occurs in Chapter IV, relating to Maths.n (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 clauses (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, orwhen 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, orwhen 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(4) Nothing in this Section shall be deemed to affect anything contained in the Madras Court of Wards Act, 1902Section 53 (1) 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. 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 Dass, and the litigations referred to, above, that there was a dispute respecting the right of succession to the office of the Mahant. But, in order to give jurisdiction to the appellant to take action, under the first contingency, referred to in. (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 Chetam Doss died. On the other hand, according to the respondent, there was no vacancy in the office of the Mahant, at that time because on the death of Chetam Doss, the respondent succeeded to the office of the Mahant. Therefore, the point to be considered is, as to whethera vacancy, has occurred, in the office of the trustee of the Math, on March l8,t there must be an actual vacancy, unfilled, is clear, from the wording of Section 53 (1) 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 under Section 53 (1), 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 a fact in the sense that nobody with any legal right has assumed office of the trustee of a