M SRIPATHI SAMPIGETHAYA Vs. P SEETHARAM BHAT

JUDGEMENT

(1.) PETITIONER has challenged the order of the Commissioner for religious and Charitable Endowments on the ground of maintainability of appeal in this petition under Article 226 of the constitution of India.

(2.) FACTS of the case: the writ petitioners? father Sri Harishchandra Sampigethaya was appointed as a hereditary trustee of the temple Ballamanja Sri anantheshwara Temple" situate at Belthangady Taluk, D. K. District, in the year 1955. Harishchandra Sampigethaya died in the year 1970. Since the Temple was governed by the provisions of the madras Hindu Religious and Charitable Endowments Act, 1951 (hereinafter referred to as the Act for brevity), proceedings were initiated under the provisions of the said Act for appointing the next hereditary trustee and by an order dated 4. 8. 1970, the Deputy commissioner appointed the petitioner as the ?hereditary trustee? vide Annexure D. While the petitioner was so functioning the 1st respondent to this Writ Petition also made a rival claim for the hereditary trusteeship by making an application. The application was treated as one filed under Section 57 (b) of the Act, and the Deputy commissioner allowed the application by his order dated 13. 7. 1998- Annexure E. Petitioner, aggrieved by the said order, preferred an appeal before the Commissioner for Religious and Charitable endowments - 2nd respondent herein. The appeal came to be allowed by the order dated 23. 6. 2001 - Annexure F, by setting aside the appointment of the 1st respondent as the hereditary trustee; meanwhile, petitioner had sought for issuing a copy of the original order dated 4. 8. 1970 appointing him as hereditary trustee. This application by mistake was treated as an application filed under section 47 (1) of the Act, and the Deputy Commissioner invited objections from all the family members to inquest in to the claim of the petitioner. The 1st respondent herein got impleaded before the deputy Commissioner, while the matter was being inquired into. The Deputy Commissioner by his order dated 22. 1. 2001, - Annexure k, confirmed his earlier order dated 19. 7. 2000, by holding petitioner as the hereditary trustee. Against the said order, the 1st respondent preferred an appeal before the 2nd respondent herein -Commissioner for Endowments. Though the petitioner had questioned the maintainability of appeal filed by the 1st respondent, the 2nd respondent over ruling the said objection has allowed the appeal and has appointed a Committee of Management by removing the petitioner from the post of hereditary trustee - Annexure A. This order is questioned in this Writ Petition.

(3.) THE main contention of the writ petitioner is that the appeal filed by 1st respondent was not maintainable in as much as the commissioner could not have entertained the appeal filed by 1st respondent. He has therefore prayed for setting aside the order. The 1st respondent has filed a detailed statement of objection stating that the petitioner is having an alternative remedy of filing a civil Suit against the order appointing the Committee of management, that the appeal before the Commissioner was perfectly competent having regard to the fact that the Deputy commissioner has made an enquiry and passed orders under section 57 (b) of the Act. Besides, 1st respondent has already filed a Civil Suit in OS 115/2001 against the orders passed by 2nd respondent.