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HATHIYA RAM MATH V/S BHAWANI NANDAN YATI, decided on Friday, December 17, 1999.
[ In the High Court of Allahabad, C.M. Writ Petition Appeal No. 50699 of 1999. ] 17/12/1999
Judge(s) : S.K. PHAUJDAR
Advocate(s) :
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  "2000 (1) AWC 403"   ==   "2000 (2) CCC 113"   ==   "2000 (1) JCLR 684"  







judgment - S.K. PHAUJDAR J.(1) THE present writ petition is directed against an order dated 26. 11. 1999 (as per Annexure 6 to the writ petition) recorded by the District Judge. Ghazipur with a prayer for a writ of certiorari to quash the same.(2) THE present petitioner No. 2 filed a suit on behalf of petitioner No. 1 which a math on an assertion that the math was an ancient one of Dasnami ascetics and was an autonomous institution bound by its age-old traditions. The petitioner No. 2 was the mahant of the math appointment in the year 1954 by the erstwhile head of the math. In the suit against the present respondent a relief of permanent injunction was sought to restrain him from interfering in the functioning of the petitioner No. 2 as the mahant of the concerned math and not to interfere in the movable and immovable properties of the math in any manner. The trial Judge recorded an order of injunction after recording findings in favour of the plaintiff on the questions of a prima facie case balance of convenience as also irreparable loss. An appeal was preferred by the respondent before the District Judge in misc. Appeal No. 22 of 1997 and the impugned order was passed setting aside the order of the trial Court granting ad-interim injunction.(3) IT appears from the averments made in the plaint that the respondent was appointed the mahant by petitioner No. 2 who was the then head of the math on 23. 2. 1996 and he was put on the gaddi on that date itself. There was a subsequent deed of Will dated 21. 3. 1996 executed by petitioner No. 2 incorporating certain conditions under which the respondent would work and this paper also indicated when and how the respondent could be removed from the post of mahant. It was the case in the plaint that due to his action detrimental to the interest of the math and against the tenents of the age-old traditions thereof the respondent was removed from the rest of mahant of the math by petitioner No. 2 and subsequently the Sadhu Samaj the brotherhood of the ascetics had appointed the erstwhile mahant only as the mahant for the math.(4) THE trial Judge had held that in terms of the papers dated 21. 3. 1996 it was within the competence of the mahant to remove the respondent and to take charge of the affairs of the math and as such the injunction order was passed. The District Judge however was of the view that once the erstwhile mahant had relinquished the post he could not have revoked the order appointing respondent No. 1. which could have been done only by a Court or by custom or usage practised or followed in the math. Prior to the order under challenge the District Judge had recorded an order disallowing the prayer for injunction and the order was challenged in the High Court The High court had set aside the order of the District judge with certain comments on the questions decided by him and directed him to rehear the matter. The respondent took the matter to the supreme Court and the Supreme Court recorded an order in a Civil Appeal arising out of an SLP No. 7705 of 1998 holding that in the interest of justice the District Judge must be left free to decide the appeal afresh untrammelled by any observation made by the High court in the impugned order. The parties were directed to maintain status quo as on the date of the order of the Supreme Court. Under these circumstances the effect of the order of the high Court in the earlier writ petition has been kept out of consideration and this Court is to look to the contentions afresh not affected by the earlier decisions of this Court in W. P. No. 41536 of 1997. The real contention between the parties is on the point of right of revocation as was exercised by the erstwhile mahant and there was a further plea on behalf of the petitioners on the extent of interference by an appellate Court in an interim order.(5) ON the second mentioned point it was submitted that the Appellate Court could not have interfered with the discretionary order of temporary injunction by imposing his own finding. It is true that an Appellate Court may not normally interfere with such an order but at all a relevant question of law comes up for decision the Appellate Court cannot escape resolving that question on the ground of apprehended interference with the discretion of the lower Court. The Appellate Court must be deemed to be clothed with all those powers which the lower Court had in deciding an appeal whether against a judgment or a decree or against an interim order.(6) AS regards the first mentioned point the bare facts may be reiterated. In 1996 precisely on 23. 2. 1996 the respondent was appointed the mahant of the math by none else than the erstwhile mahant (the present petitioner No 2). The respondent was also put to the gaddi as per traditional rites. The document that had been given any right to the erstwhile mahant was created on 21. 3. 1996 and although the present respondent was the mahant by then his signature is not there. Once the mahant relinquished his office it remains a question whether he could as an ex tra-constitutional authority still retain any residual power According to the plaint he had nominated himself as the mahant again by another document made in 1997 on the grounds of misuse of the position of the mahant by the respondent. The goes counter to the averment in the document dated 21. 3. 1996 that the mahant (respondent) could be removed for acts of misconduct and a new mahant will be selected by the Sadhu Samaj. No doubt in the plaint there is a further claim that the petitioner No. 2 was so selected but the document relied upon by the petitioners goes against that claim. The decision of the supreme Court in the case of Sri Mahalinga thambiran Swamigal was relied upon by the petitioners to say that in connection with a religious endowment the head of the math who had nominated his successor by a Will cannot revoke his nomination except for a good cause and it was stated that there was good cause for such revocation. A reading of the judgment indicates that there had been a custom in the concerned math that the head of the math could nominate a successor from one amongst the Thambirans of Thirukuiiu of Dharampuran of Adhinam and the nomination was to be made by Will and was to be attended by certain religious ceremonies. Such nomination could not have been revoked at his sweet-Will and pleasure It was a case where the plaintiff claimed to have been nominated as the head of the math but he had not become the holder of the office by virtue of the nomination alone and there was a cancellation of his nomination. The suit and the appeal were dismissed. In the second appeal filed before the high court it was held that by nomination of the appellant as the Elavarasu he become the holder of the officer or at any rate he acquired the status and the defendant could terminate the office or status only for a good cause. The single Judge decreed the matter in favour of the appellant. An appeal was preferred before the Division Bench. The Division bench reversed the decree recorded by 1. AIR 1974 SC 199. the single Judge and only thereafter the supreme Court was approached. The dispute in the case under reference is different from the present one as it had simply been held that a Will making a nomination could have been revokedon good cause and there was a custorn for revocation of the nomination for a good cause. In paragraph 18 of the judgment the Supreme Court observed that the usage in the math with the power of the nomination was exercisable by Will was really a misnomer as a will cannot have effect in presenti.(7) IN the case at our hand there is no averment of any usage regarding removal and the appointment was not made by any paper be it Will or not. The appointment was made prior to the execution of the document dated 21. 3. 1996. The learned Counsel for the respondent had drawn my attention to the trea tise on THE HINDU LAW OF RELIGIOUS and CHARITABLE TRUST by Hon. B. K. Mukherjee J. which was a compilation of his tagore Law Lectures. In the chapter on Religious institutions or Maths : Administration of maths Legal Status Rights Duties and Powers of Mahants under the sub-head of-fice it was indicated with reference to deci-sions that it is frequently seen that the Mahant relinquishes the office after appointing his suc-cessor and putting him gn the Gaddi. If in such cases the appointment is held to be invalid the office does not revert to the retiring mohant. The result is that there would be a vacancy in the office and it would have to be filled up in accordance with the usages of the institution. Concerning subsequent disability-of the mohant after his valid appointment the learned Author had opined that such a mohant does not forfeit his right by reason of his subsequent disability although such disability macertainly be a ground for removal and whether it was such a ground or not would depend like all other matters relating to mutts upon the usage of the foundation.(8) RELIANCE was also placed by the respondent also on the decision of the Supreme court in Srimallnga Thambiran s case (supra)as also on the decision of the Allahabad High court in Ganga Sarans case. In this case the Allahabad High Court had held that a writ petition would lie against a Civil Courts decision only to an extent of violation of fundamental principles of law in recording the impugned order and only if such an order cause substantial injustice to the aggrieved party and the principle that ordinary interlocutory order passed by the Civil Courts was not amenable to the extra ordinary jurisdiction of the High court would preclude entertainment of such a writ petition.(9) CONSIDERING the case-laws and the factual background it is felt that the erstwhile mahant could not have retained the authority in him to recall or revoke his order of appointment in favour of respondent No. 1 and if at all there was any misconduct on the part of respondent No. 1 to the detriment of the religious tenets of the math he could be removed not by the erstwhile mahant but by the Court or under any usage in the math. This was precisely the approach of the District Court and there is no reason to interfere with such order. In the result the writ petition stands dismissed. Petition dismissed.