SRIPATHY GOVIND BHAT Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) A rather interesting situation has arisen in this Writ Appeal wherein, the appellant before us who claims to be an Archaka performing the pooja in the Vinayak Dev Temple at Arasgud village and also claiming to be a person who maintains the temple has been granted occupancy rights by the tribunal by order dated

(2.) 9. 1994. The appellant had filed Form No. 1a under the provisions of the Karnataka Certain Inams Abolition Act, 1977. The tribunal granted occupancy rights in his favour in respect of the three survey Numbers in question and it is this decision which was challenged before the learned Single Judge by his sister-in-law, i. e. the wife of his late brother. The learned Single Judge set aside the order on the ground that the lands effectively vest in the deity and that therefore the grant of occupancy rights in such situation is something unthinkabfe and furthermore that the entries in the revenue records show the name of the deity as the owner of the lands and that consequently, there was absolutely no justification for the tribunal to have allowed the application in question. The tribunal's order was accordingly set aside and it is against this decision of the learned Single Judge that the appeal had been preferred. 2. As far as the point of law is concerned, Mr. Hegde, learned counsel who represents the appellant submitted that as regards the view expressed by the learned Single Judge with regard to the main issue namely the question as to whether a Pujari of a temple can claim tenancy rights on the ground of deemed tenancy is concerned, that the law is well settled in so far as even in the decisions reported in A. I. R. 1987 S. C. 2429 under the Bombay tenancy and Agricultural Lands (Vidharba Region) Act that the supreme Court while dealing with a parallel statute accepted the position that a pujari can be construed as a deemed tenant. That decision has been followed by this Court subsequently in appropriate cases wherein this Court has accepted the position that if the requisite ingredients are present namely that the pujari is in occupation and cultivation as on the appointed date and furthermore if it is demonstrated that part of the produce is used for the deity and the maintenance of the temple which would be almost analogous to the tender of rent to a landlord and the residue is retained by the pujari which again is analogous to a situation wherein the agricultural tenant pays part of the produce as rent and retains the balance, that it would be correct in law to apply the concept of deemed tenancy. We really do not need to examine all of these issues in detail because there is another aspect of the law which we shall deal with presently on the basis of which the appellant is entitled to succeed namely on the ground that the person who presented a challenge before the learned Single Judge had no locus standi to do so and if this is the position, then the verdict of the tribunal ought to have been questioned by either the temple authorities on behalf of the deity or the State if the decision was wrong, and in the absence of a challenge from both quarters that it would be totally unnecessary for this Court to go into the niceties of the whole issue. We mention this not from the angle of, the technicalities involved but purely in order to illustrate that if in a given situation such as the present one, there is virtually no contest from the temple authorities at the initial stage and if the tribunal proceeds to pass an order in favour of the applicant whether it is at all necessary for the High Court to do a post mortem of that order in the absence of a challenge from the competent quarters. We are of the view that if the parties who are entitled to challenge the order do not do so and if the temple authorities had not even objected to the grant of occupancy rights before the tribunal that there is virtually no necessity for this Court to reopen that issue.

(3.) WHILE on this point, we need to record that the learned Govt. Advocate submitted that prima facie, it appears that the present appellant who undoubtedly applied on Form 1a did so after the prescribed deadline had elapsed and that therefore, the High Court at stage III (after the tribunal and the learned Single Judge have both disposed of the proceeding) must suo motu intervene on this ground and set aside the tribunal's order. In the first instance, the tribunal which could have dismissed the application assuming there was a legal impediment or bar had not done so and it is not all that clear to us as to what the reason for this is. Secondly, assuming the tribunal was wrong in entertaining the application the State ought to have challenged that order which it has not done and where the grantee has come in appeal against the learned Single Judge's order it is too late in the day for us to entertain a challenge from the State to the legality or competence of the original order. Again, we say this not because of any technicalities but because there is a procedure prescribed by law and even under the Code of Criminal procedure where an order is not challenged in appeal or through cross-objections the doctrine of finality would apply and that it would certainly not be open long after the period of limitation is over and in the course of a third party litigation for the State to raise pleas which the High Court would be required to examine. There is some ambiguity with regard to the question as to when the deadline has elapsed because the State itself had issued extensions from time to time and in view of the ambiguous position, we refuse to go into this question principally because it was not raised by the State at any time before the original order became final.