C ANJAYYA EXECUTIVE OFFICER SRI VENKATESWARASWAMI TEMPLE LALAPET GUNTUR Vs. AYODHYA VENKATESWARADAS BAVAJI

JUDGEMENT

(1.) The petitioners applied for possession of the temple of Sri Venkateswara Swamy at Lalapet, Guntur, under section 87 of theMadras Hindu Religious and Charitable Endowments Act (Madras Act XIX of 1951), hereinafter referred to as the Act, on the ground that the first petitioner was appointed Executive Officer and the second petitioner a trustee of that temple by the Deputy Commissioner for Hindu Religious and Charitable Endowments, Masulipatnam. In their petition, they alleged that there was obstruction by the respondent to their taking over the institution. The Sub-Divisional Magistrate, Guntur, dismissed the petition. In doing so, he considered a scheme which had been framed for the administration of this among other temples which was filed before him and exhibited as Exhibit A-3 and reached the conclusion that the scheme applied only to one Venkateswara- Swamy's temple at Kothapet and not to Sri Venkateswara Swamy's temple at Lalapet and that the orders of appointment whereby the petitioners claimed possession must be held to relate to Sri Venkateswara Swamy's temple at Kothapet. He therefore dismissed the application which was for delivery of possession of Lalapet temple while in his view, the orders of appointment related to Kothapet temple. He also appears to have made a local inspection and found a small shrine of Sri Venkateswara Swamy at Kothapet.

(2.) It appears to me that the Sub-Divisional Magistrate was not right in taking into consideration any material other than the orders of appointment. If the orders of appointment produced before him made it clear that they related to the Lalapet Temple, it was his duty under section 87 of the Act, as I read it, to direct delivery of the temple to the petitioners. If, on the other hand, the language of the orders of the appointment was incapable of being related to existing facts, then of course he should not pass an order for delivery. It was not permissible for him to take any other evidence or examine any other record. It is unfortunate that in this case the second order re-transfering the first petitioner as the Executive Officer of the temple in question does not mention its situation in Lalapet. The name only of the temple is mentioned without reference to the locality where it is situate. But an earlier order Exhibit A-4 makes it perfectly clear that he was to be the Executive Officer of Sri Venkateswara Swamy temple at Lalapet. In my view, therefore, Exhibit A-5 the later order interpreted in the light of Exhibit A-4 the earlier one, clearly shows that the order of appointment related to the temple in Lalapet. In this view, it seems to me that it was the duty of the learned Magistrate to have directed delivery. But in adopting the procedure which he has adopted, he is not, in my opinion, altogether to blame. The petitioners were certainly partly responsible. The orders of appointment Exhibits A-4 and A-5 were not found referred to in the application filed by them. Only one order of appointment was filed along with the application and probably that was Exhibit A-5- The order of appointment relating to the second petitioner was not filed in the first instance; nor was the other order Exhibit A-4, filed. The application contains a long narrative of the events antecedent to the appointment of an Executive Officer and the non-hereditary trustee- a narrative which should have found no place in such an application. Under section 87 of the Act, the application to be made for the possession of a religious institution is to be accompanied by the order of appointment and the only allegation of fact that is necessary is that the applicant was "resisted in, or prevented from , obtaining possession of the religious institution." The application indicated is a very simple one and does not require any allegation other than (1) relating to the order of appointment and (2) obstruction or resistence by the respondent to the petitioners obtaining possession. In the present case, there is no reference to the date of the appointment of the first petitioner as Executive Officer or of the appointment of the second petitioner as a non-hereditary trustee. A reference is made to the earlier scheme framed by the District Court relating to the temples and the scheme itself was produced by the petitioners. The petitioners also adduced oral evidence.

(3.) It is true that it has been held that notice is necessary to the party from whom possession is sought under section 87, But it appears to me that the only objection that the respondent could raise in such a case is one relating to the jurisdiction of the Magistrate to pass the order sought. He can show that the order of appointment does not relate either to the petitioner or to the temple or that it is not one passed by the appropriate authority. It is not open to him however to ask the Magistrate to go into other questions. The learned Magistrate, under section 87 of the Act, is not, strictly speaking, exercising a judicial function though the word "judicial" has been used in this connection by some learned Judges in describing the functions of a Magistrate acting under section 87. I rather think that he is acting like a Sheriff or any other Executive Officer of a Court. Of course, it is his duty to see that the order is executed in respect of the right property and as against the right person ; otherwise he acts at his peril. Therefore, to that end, he can always examine what may be described as facts relating to the exercise of his jurisdiction. If he is satisfied that the conditions precedent to the exercise of his jurisdiction exist, he must discharge his statutory duty. If, on the other hand, the conditions do not exist, he cannot exercise any power. Therefore, the enquiry that a Magistrate conducts after notice to the respondent is an enquiry confined to what may be called jurisdictional facts . The mere fact that notice is given to the respondent does not entitle him to raise questions which a Magistrate has no jurisdiction to consider. In this view, the Magistrate was not concerned with the question whether a scheme was framed with respect to this temple. His only duty was to ascertain whether the ist petitioner was appointed the Executive Officer and the and petitioner a non-hereditary trustee of the religious institution the delivery of which was sought by them and this ascertainment should have been confined to an examination of the orders of appointment. I, therefore, consider that the Magistrate should have directed delivery of Sri Venkateswara Swamy's temple, Lalapet, to the petitioners.