HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No. 1052 of 1998 Between: Nagabelli Lakshmi Narsaiah. ..... PETITIONER AND The Executive Officer, Mallikarjuna Swamy Vari Devasthanam, Inovolu, Warangal District & another. .....RESPONDENT(S) HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No. 1052 of 1998 ORDER: A memo dated 03.12.1997 was issued by the Executive Officer, Mallikarjuna Swamy Devasthanam, Inavolu, Warangal District, to the petitioner informing that Sri Nagabelli Sadaiah S/o. Komaraiah, the second respondent herein, had been doing hair dripping in the Devasthanam for the last few years and, since the petitioner though in Government service was also receiving emoluments due from the Devasthanam, he should explain, within one week from the date of the memo, why the emoluments on hair dripping and other services should not be paid to the second respondent. In the affidavit, filed in support of the writ petition, the petitioner would assert that his forefathers were the hereditary office holders for rendering barber services in the first respondent- temple; his family was entitled to 1/6th share of the emoluments payable by the first respondent-temple towards hair dripping and other services; out of 1/6th share, there were two branches, one represented by his father, Sri Nagabelli Komaraiah, and another by his brother Lakshmi Narayana, who were the successors-in- interest after the demise of his grandfather; his father died during the year 1975 leaving behind six sons of whom he was the eldest; for the last 22 years, his family was receiving their share; even after partition of their properties they were distributing the amounts received from the Devasthanam among themselves; in the year 1995, the second respondent had complained that the petitioner was not giving him his share; as per the partition deed he and another brother viz. Sampath were entitled to receive the remuneration towards hereditary right; a memo was issued on 12.06.1995 asking him to submit his explanation why the amount already paid to him, on behalf of the other brothers, should not be recovered from him and paid to the second respondent; he had submitted his explanation stating that the movable and immovable properties were partitioned; the right to receive remuneration or emoluments, towards hereditary rights in respect of hair dripping, was not partitioned and still continued as per custom; after receiving the said emoluments from the first respondent-temple they distributed the amounts received among the six brothers equally; the first respondent had directed him to submit further details by his memo dated 12.07.1995 to which he had submitted the statement of elders and relevant documents; the first respondent had, thereafter, issued the present memo dated 03.12.1997 informing him that he had received another letter from the second respondent stating that the petitioner was employed as an Excise Constable in the Government service and as it was he who was rendering the services of hair dripping, he should receive the payments for which he had got issued a legal notice through his advocate. In the counter affidavit filed on behalf of the first respondent- temple, it is stated that the petitioner was working as an Excise Constable; he had not rendered any services of hair dripping; the petitioner had not obtained any declaration to the effect that he was the hereditary office holder for rendering tonsure services; after Act 30 of 1987 came into force on 28.05.1987, all hereditary rights stood abolished; the second respondent was regularly rendering service; he made a representation on 29.11.1997 stating that even though he was rendering tonsure services, the petitioner highhandedly received the emoluments; and on the basis of the representation of the second respondent, the impugned memo was issued to the petitioner calling for his explanation. The subsequent events, including the order of status quo passed on 12.01.1998, are also detailed in the counter affidavit. Sri S. Lakshma Reddy, learned counsel for the petitioner, would contend that the impugned memo calling for the petitioner’s explanation was without jurisdiction; it is only the Deputy Commissioner/Endowments Tribunal which had jurisdiction to adjudicate this question under Section 87(1)(e) of Act 30 of 1987; while hereditary rights stood abolished under Section 34(1)(b) of the Act, the petitioner’s services were protected in view of Section 34(2) of the Act; the petitioner was rendering tonsure services, in the first respondent-temple, ever since his father died in the year 1975; in such circumstances, the Executive Officer had no jurisdiction to issue the impugned memo; and in view of his being employed as Excise Constable, it was his son who was rendering tonsure services in the first respondent-temple on his behalf. Ordinarily this Court would not entertain a writ petition filed questioning a show cause notice. Where, however, the challenge to the show cause notice is on the ground of inherent lack of jurisdiction a writ petition is maintainable. The short question which would, therefore, necessitate examination is whether a case of inherent lack of jurisdiction, in the Executive Officer to pass the impugned order, has been made out by the petitioner warranting interference in writ proceedings under Article 226 of the Constitution of India. It is not in dispute that the petitioner was working as an Excise Constable and was an employee of the State Government. While it is his case that it was his son who was rendering tonsure services, the impugned memo records that it was the second respondent who was rendering tonsuring services in the first respondent-temple. Section 34 of Act 30 of 1987 reads as under: 34. Abolition of hereditary rights in Mirasidars, Archakas and other office holders and servants:- (1)(a) Notwithstanding anything in any compromise or agreement entered into or scheme framed or sanad or grant made or judgment, decree or order passed by any Court, Tribunal or other authorities prior to the commencement of this Act and in force on such commencement, all rights, whether, hereditary, contractual or otherwise of a person holding any office of the Pedda Jeeyangar, Chinna Jeeyanga, a Mirasidar or an Archaka or Pujari or any other office or service or post by whatever name it is called in any religious institution or endowment shall on the commencement of this Act stand abolished. (b) Any usage or practice relating to the succession to any office or service or post mentioned in Clause (a) shall be void; (c) All rights and emoluments of any nature in cash or kind or both accrued to an appertaining to any office or service or post mentioned in Clause (a) and subsisting on the date of commencement of this Act shall on such commencement stand extinguished. (2) Every office holder and servant mentioned in Clause (a) of sub-section (1) holding office as such on the date of commencement of this Act shall, notwithstanding the abolition of the hereditary rights, continue to hold such office or post on payment of only such emoluments and subject to such conditions of service referred to in sub- sections (3) and (4) of Section 35. (3) Notwithstanding anything contained in sub-sections (1) and (2) of this section, the qualified members of those Archaka families which were continuing in archakatvam service under the provisions of the repealed the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 and recognized as such by the competent authority shall continue to have the right to archakatvam without having any right to emoluments such families used to receive earlier under Act 17 of 1966. However they shall receive emoluments in accordance with the scheme under Section 144. Section 34(1)(b) provides that any usage or practice relating to the succession to any office or service or post, mentioned in Clause (a), shall be void. By virtue of Section 34(1)(b), the practice relating to succession of rendering tonsure services in the first respondent-temple also stood abolished, on Act 30 of 1987 coming into force on 28.05.1987. Section 34(2) enables such office holders and servants, mentioned in Section 34(1), who were holding office on the date of commencement of the Act, to hold such office on payment of emoluments and subject to such conditions of service referred to in Section 35(3) and (4). Section 35(3) provides that every office holder or servant holding office as such, on the date of commencement of the Act, shall continue as such office holder or servant and shall be paid only such emoluments as may be prescribed. The proviso to Section 35(3) enables the Government to direct such office holders and servants, as they may consider necessary, to acquire such qualifications and to undergo training in such manner for such period and on such terms as may be prescribed. Section 35(4) provides that the fixation of cadre strength, the qualifications, method of recruitment, pay and allowances, discipline and conduct and other conditions of service for the office holders and servants of Religious charitable institutions and Endowments shall be such as may be prescribed. The protection conferred, under Section 34(2), on office holders or servants is circumscribed by the conditions of service referred to in Section 35(3) and (4) or the rules made thereunder. The petitioner herein is, admittedly, an Excise Constable. Whether the petitioner can, despite being an Excise Constable, continue to render tonsure services in the first respondent-temple; whether his son could have carried out such services on his behalf; what are the conditions of service applicable to barbers in the first respondent-temple; whether any post of barber was sanctioned in the first respondent-temple and, if so, the qualifications and service conditions prescribed for the post; and whether it is the second respondent or the petitioner’s son who is entitled to continue to hold the post of a barber are all matters which are required to be examined before deciding whether or not the petitioner herein is entitled to protection under Section 34(2) of the Act. Questions whether or not the emoluments relating to tonsure services should be paid to the second respondent; is the petitioner or the 2nd respondent entitled to such emoluments etc are again factual aspects which the first respondent is required to examine. It is only on a clear case of protection under Section 34(2) being made out, would the petitioner be entitled to claim that the first respondent has no jurisdiction to issue the impugned memo. The fact or facts upon which the jurisdiction of a court, a tribunal or an authority depends can be said to be a “jurisdictional fact”. If the jurisdictional fact exists, a court, tribunal or authority has jurisdiction to decide other issues. If such fact does not exist, a court, tribunal or authority cannot act. It is also well settled that a court or a tribunal cannot wrongly assume existence of a jurisdictional fact and proceed to decide a matter. The underlying principle is that by erroneously assuming existence of a jurisdictional fact, a subordinate court or an inferior tribunal cannot confer upon itself jurisdiction which it otherwise does not possess. The existence of a jurisdictional fact is thus a sine qua non or condition precedent to the assumption of jurisdiction by a court or tribunal. Once such a jurisdictional fact is found to exist, the court or tribunal has the power to decide adjudicatory facts or facts in issue. (Carona Ltd. v. Parvathy Swaminathan & Sons,(2007) 8 SCC 559; Halsbury’s Laws of England (4th Edn.), Vol. 1, Para 55, p. 61; Reissue, Vol. 1(1), Para 68, pp. 114-15, Chaube Jagdish Prasad v. Ganga Prasad Chaturvedi(AIR 1959 SC 492, Arun Kumar v. Union of India(2007) 1 SCC 732). Where the jurisdiction of a tribunal is dependent on the existence of a particular state of affairs, that state of affairs may be described as preliminary to, or collateral to the merits of, the issue. If, at the inception of an inquiry by an inferior tribunal, a challenge is made to its jurisdiction, the tribunal has to make up its mind whether to act or not and can give a ruling on the preliminary or collateral issue; but that ruling is not conclusive. (Halsbury’s Laws of England (4th Edn.), Vol. 1, Para 55, p. 61; Reissue, Vol. 1(1), Para 68, pp. 114-15, Carona Ltd. v. Parvathy Swaminathan & Sons,(2007) 8 SCC 559). As jurisdictional facts, which go to the root of the matter, arise for consideration it cannot be said that the impugned memo suffers from inherent lack of jurisdiction. It is open to the petitioner herein to place all facts necessary in this regard before the first respondent in support of his contention that the 1st respondent has no jurisdiction to pass an order depriving the petitioner of the emoluments to which he claims entitlement for tonsure services rendered in the first respondent-temple. Under Section 87(1)(e), the Deputy Commissioner earlier, and now the Endowments Tribunal, are conferred the power to enquire into and decide any dispute as to the question whether any person is entitled by custom or otherwise to any honour, emoluments or perquisites in any charitable or religious institution or endowment and what the established usage of such institution or endowment is in regard to any other matter. Section 87(1)(e), no doubt, confers power on the Deputy Commissioner/Endowments Tribunal to go into the question whether any person is entitled by custom or otherwise to any honour, emoluments or perquisites in any charitable or religious institution or endowment and what is the established usage of such institution. As the petitioner has an alternative remedy under Section 87(1)(e) to invoke the jurisdiction of the Deputy Commissioner/Endowments Tribunal, it would justify this Court refraining from exercising its discretion to entertain the writ petition. In view of the interim order of status quo, I consider it appropriate to grant four (4) weeks time from today to the petitioner to submit his explanation to the impugned memo. The first respondent shall, on receipt of such objections, pass an order in accordance with law. Subject to the above observations, the writ petition fails and is, accordingly, dismissed. However, in the circumstances, without costs. RAMESH RANGANATHAN,J Date:23.02.2010 Note:Furnish copy within one week bo usd/mrkr