Karnataka High Court DR M Sunil Hegde Vs State of Karnataka On 22 February, 2019 Author: B.M.Shyam Prasad

Dr M Sunil Hegde vs State Of Karnataka on 22 February, 2019
Karnataka High Court

Author: B.M.Shyam Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY 2019
BEFORE
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO.7470 OF 2018 (RES)
BETWEEN:
DR. M. SUNIL HEGDE

SON OF LATE SRI M. BALAKRISHNA HEGDE
AGED ABOUT 63 YEARS
MOMBETTU POST, HIRIYADKA
UDUPI TALUK AND DISTRICT - 576 101.
... APPELLANT
(BY SRI. ASHOK HARANAHALLI, SENIOR ADVOCATE FOR
SRI. SUBRAMANYA R., ADVOCATE)
AND:
1. STATE OF KARNATAKA
MUZARAI DEPARTMENT
DR. B.R. AMBEDKAR VEEDHI
BENGALURU - 560 001
REPRESENTED BY ITS
PRINCIPAL SECRETARY.
2. RAJYA DHARMIKA PARISHATH

HINDU RELIGIOUS INSTITUTIONS &
CHARITABLE ENDOWMENTS
2ND FLOOR, SRI. MINTO ANJENYA BAHVAN
ALURU VENKATA RAO ROAD
CHAMARAJPETE
BENGALURU - 560 019
REPRESENTED BY ITS
SECRETARY.
2
3. THE COMMISSIONER
HINDU RELIGIOUS INSTITUTIONS &
Indian Kanoon - http://indiankanoon.org/doc/100377488/ 1

CHARITABLE ENDOWMENTS
2ND FLOOR, SRI. MINTO ANJENYA BHAVAN
ALURU VENKATA RAO ROAD
CHAMARAJPETE
BENGALURU - 560 019.
4. THE DEPUTY COMMISSIONER

UDUPI DISTRICT
UDUPI - 576 104.
5. THE ASSISTANT COMMISSIONER

UDUPI SUB-DIVISION
UDUPI DISTRICT
UDUPI - 576 104.
6. SRI VEERABHADRA TEMPLE HIRIYADKA

BOMMARABETTU VILALGE
UDUPI TALUK AND DISTRICT - 576 101
REPRESENTED BY ITS
EXECUTIVE OFFICER/ADMINISTRATOR.
7. SRI M. GOVARDHAN DAS HEGDE

SON OF B. VITTAL HEGDE
AGED ABOUT 79 YEARS
RESIDING AT MOMBETTU HOUSE
HIRIYADKA POST
8. SRI. HARSHAVARDHAN HEGDE

SON OF NARAYANA HEGDE
AGED MAJOR
RESIDENT OF CHERKADI VILLAGE
... RESPONDENTS
(BY SRI. H. SUBRAMANYA JOIS, SENIOR ADVOCATE FOR

SRI. K.C. SANTHAKUMAR, ADVOCATE FOR C/R-7 AND R-8)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER

SECTION 63-A(1) OF THE KARNATAKA HINDU RELIGIOUS
3
CHARITABLE ENDOWMENTS ACT, 1997 PRAYING TO SET ASIDE

THE PROCEEDINGS OF THE 2ND RESPONDENT - RAJYA
DHARMIKA PARISHATH HELD IN ITS 14TH MEETING DATED
23.03.2018 AND CONSEQUENTLY SET - ASIDE THE ORDER
PASSED BY THE 3RD RESPONDENT - COMMISSIONER, RAJYA
DHARMIKA PARISHATH, BENGALURU, DATED 26.03.2018 IN
IMPLEMENTING THE DECISION OF THE RAJYA DHARMIKA
PARISHATH.
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN

HEARD AND RESERVED ON 06.12.2018 AND COMING ON FOR

PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
The appellant has impugned the decision taken by the Rajya Dharmika Parishat - an authority
constituted under the provisions of Section 20 of the Karnataka Hindu Religious Institutions and
Charitable Endowments Act, 1997 (for short, 'Act of 1997') and hereinafter referred to as the
'Dharmika Parishat' - on 23.3.2018 in its 14th Meeting, and the consequential Order dated
26.3.2018 by the Commissioner, Hindu Religious Institutions & Charitable Endowments (for short,
the 'Commissioner for HRI & CE). By these impugned decision/order the respondent No.7 is
appointed as the Hereditary Trustee and the respondent No.8 is appointed as the successor to the
office of the Hereditary Trustee of the Temple, Sri. Mahatobara Veerabhadra Temple situated at
Hiriyadaka, Bommarabettu Village, Udupi Taluk - respondent No. 6. .
2. The appeal arises in the background of the following facts and circumstances as pleaded and
canvassed in this appeal:
2.1 Sri Mahatobara Veerabhadreshwara Temple was declared as an 'Excepted Temple' (hereafter
referred to as the 'Temple'] under the provisions of the Madras Hindu Religious Endowments Act,
1927 (for short, 'Act of 1927'). The Temple was managed by the hereditary trustees, and these
trustees were from 'Alva Hegde' and 'Kurla Hegde' families. The "Kurla Hegde" family has three
branches viz., (i) Vonthibettu, (ii) Anjaru Beedu and (iii) Mombettu, and the 'Alva Hegde' family has
four branches viz., (i) Padambeedu Padupalu, (ii) Padambeedu Mudupalu, (iii) Padambeedu
Kallubettu and (iv) Padambeedu Kapyadi. The respondent No. 7 is from the Mombettu branch of the
'Kurla Hegde' family, and the respondent No.8 is from the Padambeedu Padupalu branch of the
'Alva Hegde' family.
2.2 The members of these family have been agitating over the years inter alia as regards the
questions who should be the Hereditary Trustee/s, who, as a 'Fit Person', should be managing the
affairs of the Temple until the declaration of Hereditary Trustee/s, whether only "Kurla Hegde"
family is entitled to the office of the 'Hereditary Managing Trustee/Trustee" and whether the
members of the 'Alva Hegde' family have abandoned or lost their right to be appointed to the office
of the 'Hereditary Trustee'. The multiple litigations amongst the members of these families could
broadly be classified as (a) disputes ensuing from the declaration of Sri. Vittal Hegde from the 'Alva
Hegde' family as a Hereditary Trustee and (b) disputes resulting from the appointment of a 'Fit
Person' after the demise of Sri. Balakrishna Hegde from the 'Kurla Hegde' in the year 2009. A 'Fit
Person' is appointed as a temporary measure until the declaration/ appointment to the office of the
Hereditary Trustee is made.
2.3 Sri Vittal Hegde from the 'Alva Hegde' family was declared as the 'Hereditary Trustee' vide the
Order dated 02.7.1990. Sri Balakrishna Hegde from the 'Kurla Hegde' family disputed such
appointment in an appeal before the Commissioner for HRI & CE. This appeal was dismissed by the
Commissioner for HRI & CE by his order dated 4.2.1991. Sri Balakrishna Hegde impugned these two

orders before the Karnataka Appellate Tribunal in a revision petition. The Karnataka Appellate
Tribunal allowed the revision petition and quashed the order dated 2.7.1990. Sri Vittal Hegde
impugned the order of the Karnataka Appellate Tribunal before the High Court of Karnataka in a
writ petition in W.P.No.41041/1995. This writ petition was disposed of by the writ court holding that
the revision petition could not have been entertained by the Karnataka Appellate Tribunal, and any
person aggrieved by the order of the Commissioner for HRI & CE ought to have approached the
appropriate Civil Court.
2.4 Sri Balakrishna Hegde commenced the suit in O.S.No.101/1996 seeking inter alia declaration
that he was entitled to function as Hereditary Managing Trustee/Trustee of the Temple and for
declaration that Alva Hegde family represented by Sri Vittal Hegde had no right to function as
Hereditary Trustee/s. After the demise of Sri. Balakrishna Hegde, his legal representatives,
including the appellant, came on record as plaintiffs. However, these legal representatives filed
separate applications to be transposed as defendants. These applications were allowed, and later the
suit in O.S.No.101/1996 was dismissed on 14.12.2016.
2.5 Insofar as the appellant, who is one of the sons of Sri. Balakrishna Hegde from the 'Kurla Hegde'
family and who was on record as plaintiff 1(b), an application (I.A.18) was filed for transposition as
one of the defendants. This application was not supported by the appellant's affidavit but was
supported by a memorandum of facts filed by the appellant's counsel. It was stated in such
memorandum of facts that there was conflict of interest between the appellant and the other
plaintiff/s, and because of such conflict of interest, the appellant must be permitted to transpose
himself as one of the defendants1. This application was allowed by the learned Civil Court by its
order dated 2.1.2016. Later the appellant filed an application (I.A. There is some confusion about the
date of the order. The learned Civil in the first part of the order has referred to the date as 2.1.2016
and in the latter part of the order has referred the date of order as 2.1.2015. However, from the
sequence of events as
20) seeking review of the earlier order. The appellant contended that the application for his
transposition was filed by his counsel without his instructions, the appellant had not entered into
any compromise and because of the subsequent dismissal of the suit as a consequence of
transposition of even his younger brother as a defendant, the questions raised about the entitlement
to the hereditary trusteeship had remained without adjudication. The questions relating to
appointment under hereditary trusteeship was to be decided only by the Civil Court. The learned
Civil Court dismissed such application I.A. No. 20 in its order dated 10.11.2016 on the ground that it
was filed beyond the prescribed limitation period as well as on the ground that the order did not
suffer from any error apparent on the face of the record. Further, the learned Civil Court concluded
that the application (I.A.20) was not obviously discernable from the order sheet, the orders on I.A.
No. 18 appears to be on 2.1.2016.
maintainable as the suit itself was disposed of. The appellant did not call in question this order on
I.A. No.20.

2.6 The appellant, however, has instituted the later suit in O.S. No. 297/2018 on the file of the
principal civil judge (junior division) and JMFC, at Udupi. The appellant has inter alia sought for
declaration of the appellant as the Hereditary Managing Trustee/Trustee of the Temple and for
declaration that the members of the 'Alva Hegde' family, who have lost such right by abandonment,
have no right to function as Hereditary Managing Trustee/Trustee of the Temple. This suit in O.S.
No. 297/2018 is filed on 7.4.2018. But, the impugned proceedings and order are prior to the date of
the institution of the suit.
2.7 The appellant's father, Sri Balakrishna Hegde (from the 'Kurla Hegde' family), who was
appointed a 'Fit Person' vide the order dated 16.2.1971 after the demise of Sri. Jagjeevan Alva (from
the Anjaru Beedu branch of the 'Kurla Hegde' family), continued to function as a 'Fit Person' looking
after the affairs of the Temple until his demise on 28.3.2009. However, after his demise, because of
counter claims even as regards the appointment of the 'Fit Person', the Executive Officer of Sri
Mookambika Temple was appointed as the Administrator vide the order dated 3.6.2009, and the
Executive Officer of Mookambika Temple is continuing to function as the administrator of the
Temple.
2.8 After the demise of Sri Balakrishna Hegde on 28.3.2009, the appellant was appointed as the 'Fit
Person'. However, his appointment was revoked and therefore, the appellant preferred Writ petition
in W.P. No. 28727/2009 impugning the revocation of his appointment as the 'Fit Person'. This writ
petition was accepted, and the Commissioner for HRI & CE was called upon to reconsider the
appellant's claim. Thereafter, notice of enquiry was caused. Sri M. Chitharanjandas Hegde, a
member of the appellant's branch impugned such initiation in W.P. No. 30998/2009. This writ
petition was also accepted, the proceedings before the Commissioner for HRI & CE were quashed
and the parties were directed to have their asserted rights regarding Hereditary Trusteeship
adjudicated in a civil court.
2.9 This order in W.P. No. 30998/2009 was carried in writ appeal in W.A. No.2642/2010 by
Division Bench of this Court. The Division Bench concluded inter alia that the Commissioner for
HRI & CE had power to make entry as regards the Hereditary Trustee when there were no dispute.
However, the Commissioner for HRI & CE could not exercise such power when there was a dispute.
In the event of a dispute, the Commissioner for HRI & CE will have to perforce direct the parties to
the Civil Court for adjudication of the dispute. The Division Bench restored the enquiry leaving open
all contentions, including the question as to the jurisdiction of the Commissioner for HRI & CE, to
appoint/ declare a trustee, for adjudication.
2.10 However, this enquiry was continued by the Rajya Dharmika Parishat Tribunal (for short,
'Parishat Tribunal') as the Act of 1997 was brought into force and Tribunal was constituted by the
Dharmika Parishat. The Parishat Tribunal concluded the proceedings by its reasoned order dated
8.2.2013. The Parishat Tribunal formulated the following two questions for its decision:
"1) Whether Rajya Dharmika Parishat and its subsidiary Tribunal enjoys jurisdiction,
in appointing a Hereditary Trustee to the private religious institution?

2) Whether Rajya Dharmika Parishat/Tribunal could direct the parties to go to civil

court in getting the issue concerning appointment of Hereditary Trustee
adjudicated?"
Insofar as the first question, the Parishat tribunal, referring to the provisions of section 20-A(2)(vii)
of the Act of 1997, concluded that if there is a dispute with regard to which member of a family, or
which family, is entitled to succeed to the office of the Hereditary Trustee, the Rajya Dharmika
Parishat will have no jurisdiction to entertain the dispute. The Parishat Tribunal concluded that
because the provisions of section 20-A(2)(vii) of the Act of 1997 employ the word 'and', the Rajya
Dharmika Parishat could record the name of a member of the family, who is entitled to succeed to
the office of Hereditary Trustee only if there were no disputes in that regard. As regards the second
question, the Parishat Tribunal, referring to the provisions of section 68 of the Act of 1997,
concluded that the jurisdiction of a civil court is excluded only with regard to those questions that
could be decided by the Rajya Dharmika Parishat, and because the Rajya Dharmika Parishat is not
conferred with the power to adjudicate on the questions relating to appointment of a person as the
Hereditary Trustee - particularly in case of a dispute, the competent civil would have to decide all
questions relating to the appointment of Hereditary Trustee/S. The Parishat Tribunal concluded
that the disputes should be referred to Civil Court for adjudication 'in a properly constituted suit' in
that regard leaving all the contentions of the parties open. The Parishat Tribunal's order dated
8.2.2013 has remained unchallenged.
2.11 When the matter stood thus, the respondent Nos. 7 and 8 submitted on 5.3.2018/7.3.2018,
separate applications with the Deputy Commissioner Udupi District/the Assistant Commissioner,
Udupi Sub- division (respondent numbers 4 and 5) for their appointment as Hereditary Managing
Trustee/Trustee and successor Hereditary Trustee respectively. They relied upon the agreements
dated 23.6.2007 and 8.2.2018. As it appears from a cursory perusal of these agreements, a certain
set of members of the branches of the Alva Hegde family have entered into agreement dated
23.6.2007, and also sworn to respective affidavits, inter alia agreeing to the appointment of
respondent No. 8 as the successor Hereditary Trustee on behalf of the Alva Hegde family. Similarly,
a certain set of the members of the branches of the Kurla Hegde family have also entered in to
agreement dated 08.02.2018, and have sworn to affidavits, inter alia agreeing to the appointment of
respondent No. 7 as the successor Hereditary Managing Trustee/Trustee of the Temple.
2.12 The respondent No. 3, acting upon such applications, forwarded a proposal to the Dharmik
Parishat for the appointment of respondent Nos. 7 and 8 to the office of the Hereditary Managing
Trustee/ Trustee. It is in consideration of such proposal, the Dharmika Parishat, in its meeting
dated 23.3.2018, decided to declare respondent No. 7 as the Hereditary Managing Trustee/Trustee
and the respondent No. 8 as the successor Hereditary Trustee in exercise of the powers under
section 20-A(2)(vii) of the Act of 1997. Thereafter the impugned order dated 26.3.2018 is issued by
the Commissioner for HRI & CE.
3. Sri Ashok Haranahalli, the learned senior counsel for the appellant canvassed multifold
submissions which are as follows. The dispute as regards the appointment of a member from the
Alva Hegde family as a Hereditary Trustee, and the appointment of Hereditary Managing

Trustee/Trustee is a long pending dispute. These disputes have not been decided by a civil court. In
fact, the Parishat Tribunal, while considering the respective claims in an earlier enquiry as per the
orders of Division Bench of this court in a writ appeal in W.A. No.2642/2010, has categorically
concluded that the aforesaid disputes cannot be decided by the Dharmika Parishat under the
provisions of the Act of 1997 and relegated the parties to an appropriate civil proceedings before the
competent civil court for adjudication. This dispute is pending adjudication in O.S. No. 297/2018.
As such, the impugned decision/order is without jurisdiction on two counts. The impugned
decision/order would tantamount to review of the decision of the Parishat tribunal on 8.2.2013, but
the provisions of Act of 1997 do not confer power of review on Dharmika Parishat. The provisions of
the Act of 1997 do not confer the necessary jurisdiction on the Dharmika Parishat to decide on
questions relating to appointment of Hereditary Managing Trustee/Hereditary Trustee.
3.1 The Dharmika Parishat under Section 20(A)(i)(d) of the Act of 1997 can resolve dispute as to
whether a trustee holds or held office as a Hereditary Trustee, and under Section 20(A)(2)(vii)
thereof, the Dharmika Parishat shall, when there is no dispute as to who is entitled to the office of
Hereditary Trustee upon the office of a Hereditary Trustee falling vacant, record the name of the
member of the family who is entitled to succeed to the office of the Hereditary Trustee. However,
when there is a dispute as to who would be entitled to succeed to the office of the Hereditary
Trustee, Dharmika Parishat would have no jurisdiction. In fact, as is obvious from the orders dated
8.2.2013 of the Dharmika Parishat in the earlier proceedings between the parties, the Dharmika
Parishat is aware that it is not enjoined with the powers under the Act of 1997 to adjudicate upon
disputes regarding the appointment of Hereditary Trustee, except in the circumstances under
Section 20(A)(1)(d) of the Act of 1997. The Dharmika Parishat vide its order dated 8.2.2013 has
concluded that the civil court's jurisdiction is excluded under Section 68 of the Act of 1997 only
insofar as those questions which are to be dealt by the Dharmika Parishat under provision of Act of
1997. Nevertheless, the respondent Nos.7 and 8 have been appointed as successor Hereditary
Managing Trustee/Trustee and successor Hereditary Trustee respectively.
3.2 The learned Senior counsel contended alternatively that, if it is held that the dispute between the
parties as regards the appointment of Hereditary Managing Trustee/Trustee would be within the
jurisdiction of Dharmika Parishat under Section 20- A(1)(d) or Section 20-A(2)(vii) of the Act 1997,
the impugned decisions/order is arbitrary inasmuch as the same is in violation of principles of
natural justice. The learned Senior counsel relying upon a catena of decisions including the
decisions of the Hon'ble Supreme Court in Canara Bank vs V.K. Avasthi2, State Government
Houseless Harijan Employees' Association vs State of Karnataka and others3 and Devadas vs Union
of India4, contended that adherence to the principles of natural justice is the minimum protection
available to an individual against arbitrary procedure that may be adopted by judicial, quasi judicial
or administrative authority while making orders affecting their rights. A statute must necessarily be
consistent with the principles of natural justice unless expressly or by necessary implication
excluded. If the relevant statute does not embody the requirement expressly, the requirement must
be inferred from the nature of the duty to be performed under the statute. The extent of compliance
with the principles of natural justice would depend on the facts and circumstances of a case and
(2005) 6 SCC 321 (2001) 1 SCC 610 the framework of the statute under which the right is decided.

3.3 The appellant has been agitating the dispute as regards the right to be appointed as a successor
Hereditary Managing Trustee/Trustee, and in fact, the appellant's application for his appointment
as 'fit Person' asserting a claim that he was entitled to be declared a successor Hereditary Managing
Trustee was pending consideration before the Commissioner for HRI & CE. The circumstances in
which the impugned decision/order is taken also establishes that the Dharmika Parishat is aware of
the pending dispute as regards the declaration of Hereditary Managing Trustee/Trustee. However,
the impugned decision/order is taken, without even notifying the appellant individually or
otherwise.
(2008) 8 SCC 725 3.4 If indeed the impugned decision/order is to be treated only as recording the
name of members of the family who are entitled to succeed to the office of Hereditary Managing
Trustee/trustee under Section 20- A(2)(vii), the Dharmika Parishat could have exercised such
powers only if it formulated an opinion that there was no dispute as regards such succession. The
provisions of section 20-A (2) (vii) empowers the Dharmika Parishat with the duty to record the
name of the members of the family who are entitle to succeed to the hereditary office, but the same
is predicated on the condition that there is no dispute as regards the same. Therefore, if there is any
dispute as regards who is to succeed to the hereditary office, the Dharmika Parishat would not have
jurisdiction. From the reading of the impugned decision/order, it is obvious that the Dharmika
Parishat did not formulate an opinion in that regard. As such, the impugned decisions/order is in
violation of Section 20-A(2)(vii).
4. Sri H. Subramanya Jois, the learned Senior counsel for the respondent Nos.7 and 8, as well as the
counsel for the respondents, canvassed in rebuttal the following. The appellant's case is on the
premise that there is a subsisting dispute as regards the declaration of the right to succeed to the
Hereditary Managing Trustee/Trustee, which could only be decided by a civil court, and because of
such pending dispute, the impugned decision/order is without jurisdiction. However, this is
incorrect. The appellant was impleaded as one of the plaintiffs in the suit in O.S. No.101/1996 on the
demise of his father. But, on an application filed on behalf of the appellant, the appellant was
transposed as one of the defendants, and later the suit itself was dismissed in the year 2015. The
appellant's subsequent application for review of the order permitting his transposition as defendant
is also dismissed by order dated 21.1.2016. The appellant did not challenge this order, and as such,
dismissal of the suit attained finality and the dispute as regards the declaration for Hereditary
Managing Trustee/Trustee attained quietus. The reliance upon subsequent suit in O.S.No.297/2018
is misdirecting inasmuch as the suit is filed subsequent to the impugned decision/order and the
filing is an afterthought. Therefore, the canvass on behalf of the appellant that there is an existing
dispute, which has to be decided only by civil court, and as such, the impugned order is without
jurisdiction, is untenable.
4.1 Though the requirement of compliance with principles of natural justice is inherent in the
provisions of Section 20-A(1)(d), and 20-A(2)(vii), in the facts and circumstances of the present
case, there was no violation of the principles of natural justice. The appellant with the abandonment
of the suit in O.S. No. 101/1996, had given up his right to seek declaration as a successor Hereditary
Managing Trustee/Trustee. The appellant's claim was only for appointment as a 'fit Person', a
temporary measure until the declaration of Hereditary Trustee from amongst the members of 'Kurla

Hegde' family and he had never set up a claim for declaration as a Hereditary Managing
Trustee/Trustee. This is obvious from the appellant's application as referred to in the Official
Memorandum dated 8.5.2009 and the appointment of the appellant vide the Official Memorandum
dated 10.7.2009. As such, the appellant had no right to seek declaration/appointment as Hereditary
Managing Trustee/Trustee, and if he did not have such a right, the appellant cannot complain of
violation of the principles of natural justice.
4.2 The learned civil court in O.S. No. 101/1996 rejected the appellant's application for review of the
earlier order. The appellant did not challenge this order of refusal to review. The appellant's present
effort to distance himself from the application viz., I.A. No. 18 on the ground that the application
was not supported by his affidavit is contrived, and is intended to bolster the canvass that there is
pending dispute and therefore, the Dharmika Parishat has no jurisdiction. The proviso to Rule 18 of
the Karnataka Civil Rules of Practice, 1967 stipulates the requirement of an affidavit by a party in
support of an application, as against memorandum of facts by an advocate, only in respect of
applications filed for temporary injunction, attachment, arrest, appointment of Guardian or the
appointment of receiver or amendment of pleadings, and in all other applications, memorandum of
facts of an advocate would be permissible and sufficient.
4.3 The proposition that the Dharmik Parishat could exercise its jurisdiction under section
20-A(2)(vii) only if the Dharmika Parishat could formulate an opinion that there was no dispute as
regards who would be entitled to succeed to the office of Hereditary Managing Trustee/Trustee, is
reading a rigour into the provisions, and the same would be impermissible as it would be in
contravention of the golden rule of interpretation of statutes that a statutory provision should be
read in its plain language without any additions or interpolations.
5. Sri Ashok Haranahalli, the learned senior counsel for the appellant, in rejoinder, submitted that
the contention on behalf of the respondent Nos. 7 and 8 that the appellant had abandoned his
rights/claim to appointment of the office of the Hereditary Trustee because his application viz.,
I.A.No. 18 in O.S. No.101/1996 and the later application for review of the orders on IA No.18 are
rejected, and suit is also dismissed is specious. The reading of the provisions of Rule 18 of the
Karnataka Civil Rules of Practice, 1967 is wholly erroneous. The proviso to Rule 18(2) should be
read harmoniously with Rule 18(2). The correct reading of Rule 18(2) and the proviso there to would
be that under Rule 18(2) an advocate may be permitted to file memorandum of facts in support of an
application, in lieu of an affidavit by a party, when the application is based on facts that appear from
the records of the case in the court or relate to the advocates' own act or conduct. However, insofar
as the applications that are mentioned in the proviso to Rule 18(2), these applications shall be
accompanied by an affidavit by the party. In the memorandum of facts accompanying application
I.A. No.18, the advocate on record has not stated that he is swearing to his own conduct/act or facts
based on records from the case. In fact, the advocate on record has filed memorandum of facts on
the ground that there is conflict of interest between the appellant and the other plaintiffs and
therefore, the appellant should be transposed as a defendant without noticing that the other
plaintiffs were already transposed as defendants. Therefore, the rejection of neither I.A. No.18 nor
I.A. No.20 for review could be held against the appellant at this stage, especially with the initiation
of the later suit in O.S. No. 297/2018.

6. The learned senior counsels for both the appellant and the respondents submitted that the Act of
1997, as well as the Karnataka Hindu Religious Institutions And Charitable Endowments
(Amendment) Act, 2011, has been struck down as being unconstitutional by separate Division
Benches of this Court, and the challenge thereto is presently pending before the Hon'ble Supreme
Court. But, the consideration of the submissions made would not be impeded by the proceedings
before the Hon'ble Supreme Court.
7. Insofar as the bar of the Civil Court's jurisdiction under the provisions of the Act of 1997 prior to
the Karnataka Hindu Religious Institutions and Charitable Endowments (Amendment) Act 2011, a
Division Bench of this court in Subash Chandra Naik vs State of Karnataka and others5 has held that
though the office of the Hereditary Trustee is recognised under the Act of 1997, the question as to
who should succeed to such an office is a question should be decided by civil courts. In view of this
decision, the amendments to the Act of 1997 by the Karnataka Hindu Religious Institutions And
Charitable Endowments (Amendment) Act, 2011 and the respective canvass on behalf of the
appellant and the respondents, the questions that arise for consideration are:
(1) Whether the ordinary jurisdiction of Civil Courts under Section 9 of the Code of
Civil Procedure to decide questions relating to the rights to the office of Hereditary
Trustee of a Family Temple stand absolutely excluded under section 68 of the
Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 even
after the Karnataka 2011 (3) Kar.L.J. 261 Hindu Religious Institutions and Charitable
Endowments (Amendment) Act 2011, and consequentially, the jurisdiction to decide
all questions relating to the office of Hereditary Trustee of a Family Temple is vested
with the Rajya Dharmika Parishat/ Zilla Dharmika Parishat, statutory bodies
constituted under the Karnataka Hindu Religious Institutions and Charitable
Endowments (Amendment) Act, 2011, (2) Whether the Rajya Dharmika Parishat,
while exercising its jurisdiction under section 20-A (1) (d) and section 20-A (2)
(vii) of the Karnataka Hindu Religious Institutions and Charitable Endowments Act,
1997, is required to comply with the principles of natural justice, and if so, in what
manner, (3) Whether the impugned order by the Dharmika Parishat and the
consequential order by the Commissioner, Hindu Religious Institutions & Charitable
Endowments, are irregular and perverse, (4) What order?
8. The Constitution Bench in the celebrated decision of Dhulabai vs. State of Madhya Pradesh6 has
declared that it is a settled law that the jurisdiction of the civil courts is all embracing except to the
extent it is excluded by an express provision of law or by clear intendment arising from such law and
this would be the purport of section 9 of the Code of Civil Procedure, and has further elucidated that
where there is no express exclusion of the jurisdiction, the examination of the remedies and the
scheme of the particular Act in order to find out the intendment becomes necessary and the result of
the enquiry may be decisive. If there is no express bar, it would be necessary to see if the statute
creates a special right or liability, and whether the (2014) 16 SCC 51 statute lays down that all
questions about the said right and liability shall be determined by the tribunal constituted under the
Act. The Hon'ble Supreme Court in Banwar Lal v. Rajasthan Board of Muslim Wakf7 has declared

thus:
"The civil courts have the jurisdiction to try all suits of civil nature except those
entertainment whereof is expressly or impliedly barred. The jurisdiction of the civil
courts to try suits of civil nature is very expansive. Any statute which excludes such
jurisdiction is, therefore, an exception to the general rule that all disputes shall be
triable by a civil court. Any such exception cannot be readily inferred by the courts.
The court would lean in favour of a construction that would uphold the retention of
jurisdiction of the civil courts and shift the onus of proof to the party that asserts that
the civil court's jurisdiction is ousted. Even in cases where the statute accords finality
to the orders passed by the Tribunals, the court will have to see whether the Tribunal
has the power to grant the reliefs which the civil courts would normally grant in suits
filed before them. If the answer is in the (2014) 16 SCC 51 negative, exclusion of the
civil court's jurisdiction would not be ordinarily inferred."
9. Thus, from the above, it follows, firstly, that a court, while examining whether the jurisdiction of a
civil court is excluded under a statute, must not readily infer such exclusion. Secondly, the court
must examine whether there is an express exclusion of the jurisdiction under the statute. Thirdly, if
there is no express exclusion of the jurisdiction, whether any special right or liability is created
under the statute with provision for redressal thereunder. Fourthly, even where finality to the orders
of the tribunal is prescribed under the statute, the courts will have to examine whether the tribunal
could grant the reliefs which the courts could, and if the tribunals can grant the relief that the civil
courts can grant, the exclusion of jurisdiction should be inferred.
10. The bar under the Act of 1997 to the jurisdiction of the civil courts is under Section 68, which
reads as under:
"68. Bar of Jurisdiction.- Save as expressly provided in this Act, no civil Court shall
have jurisdiction to decide or deal with any question which is by or under this Act
required to be decided or dealt with by an officer or authority under the Act or in
respect of which the decision or order of such officer or authority is made final and
conclusive."
It is obvious from the provisions of this section that the bar of the jurisdiction of the civil courts is
not absolute, and the exclusion is confined to two categories viz., those questions which shall be
decided or dealt with by an officer or an authority under the Act of 1997, and in respect of those
decisions and orders of such officer or authority which is made final and conclusive. If there are
questions that do not come under these two categories, the jurisdiction of the civil courts with
respect to such questions is not excluded. Thus, Section 68 does not absolutely bar the jurisdiction
of civil courts, and this has also be so held by a Division Bench of this Court in Subash Chandra Naik
v. State of Karnataka and others8, while considering the provisions of section 2 (15) of the Act of
1997 and the powers of the Commissioner under section 3 of the Act of 1997, has held that:

"No doubt the hereditary office in the instant case is one falling within the provisions
of section 2 (15) of the Act which defines the hereditary officeholder and hereditary
trustee. The powers of the Commissioner under section 3 is the power of
superintendence and control for the purpose of carrying out the provisions of the Act
which includes the power to pass any order which will be necessary to ensure that the
institutions are properly administered and the income is duly appropriated for the
purpose they were found or exist. Section 68 speaks about the bar of jurisdiction viz a
viz the civil court. However the 2011 (3) Kar.L.J. 261 said section as a saving clause
and it says that no civil court shall have jurisdiction to decide the dispute in question
which is, by or under this Act, required to be decided or dealt by an officer or an
authority under the Act, unless it is expressly provided. On a conspectus reading of
the aforesaid provisions, what emerges is that civil court would have jurisdiction to
deal with an issue connected with the matter which would not come within the scope
of the Act. In other words, though the office of the hereditary trustee is recognised
under the Act, the question as to who should succeed to such an office is a question
which would not come within the scope of general superintendents and control for
the purposes of carrying out the provisions of the Act which powers can be exercised
by the Commissioner subject to general or special orders of the state government."
11. After this Division Bench decision, the Act of 1997 has been amended by the Karnataka Hindu
Religious Institutions and Charitable Endowments (Amendment) Act, 2011; by this amendment
inter alia the provisions of erstwhile Section 20 of the Act of 1997 are substituted. Further, the
provisions of Section 20A and 25A have also been included. This amendment is made because the
legislature considered necessary, amongst others, to constitute Dharmika Parishat at the State Level
and Zilla Dharmika Parishat at the District Level, with powers to administer the temples and to
settle the disputes for the better management of religious institutions, while protecting the
hereditary rights of the Trustees and to continue the management of such temples by the Hereditary
Trustees. The question that arises is whether the jurisdiction of the civil courts stands excluded after
these amendments. The provisions of section 20-A read as follows:
"20A. The powers and functions of the Dharmika Parishat.- The powers and
functions of the Dharmika Parishat shall be as follows, namely.- (1) The Dharmika
Parishat shall be empowered to resolve any dispute.-
(a) regarding religious practices, customs, usage, traditions and for that purpose it
may consult experts to assist in resolving such disputes;
(b) as to whether a temple is a public, private or denominational temple;
(c) as to whether an institutions is a religious institution or a composite institution;
(d) as to whether a trustee holds or held office as hereditary trustee of such

institution.

(2) The Dharmika Parishat.-
(i) may constitute a Committee of Management to the notified institution having gross annual
income of rupees [twenty five lakhs] and above;
(ii) may approve scheme for adoption of temples having an income of rupees two lakhs or less and to
fix the terms of adoption;
(iii) shall act as appellate authority in respect of orders passed by the Zilla Dharmika Parishat;
(iv) for the purpose of resolving any dispute as provided under this section Nyayadhikarana may be
constituted with the judicial member of the Parishat and the Commissioner as its members. If there
is difference of opinion among the members the issue shall be decided by the Dharmika Parishat;
(v) may recommend to the State Government to issue notification and de-notification of the
institutions required to be notified or deleted under the provisions of the Act;
(vi) may dissolve Committee of Management of a notified institution having gross income of Rupees
[twenty five lakhs] and above as provided under Section 28 and to appoint administrator to the
notified institutions under Section 29;
(vii) shall record the name of the member of the family, who is entitled to succeed to the office of
hereditary trustee when a permanent vacancy occurs and if there is no dispute in the office of the
hereditary trustee.]"
12. The State Government may, on the recommendation of the Dharmika Parishat, constitute Zilla
Dharmika Parishat to discharge those functions at the district level as could be discharged by the
Dharmika Parishat at the state level. In addition, a reference to the provisions of section 25A would
also be relevant, and the same read as follows:
"25A. Provision relating to institution managed by Hereditary Trustee.-
(1) No committee of management shall be constituted in respect of the notified institutions managed
exclusively by hereditary trustees. The power of management shall vest in such hereditary trustee.
(2) If there is no legal heir to succeed the office of the hereditary trustee, the Dharmika Parishat or
the Zilla Dharmika Parishat, as the case may be, shall constitute the committee of management as
provided under Section 25. (3) When a temporary vacancy occurs in the office of a hereditary trustee
and if there is a dispute with regard to right of succession to such office and such vacancy cannot be
filled up immediately or when a successor is a minor and has no guardian fit and willing to act or
there is a dispute regard to as to who is entitled to succeed such office, the Dharmika Parishat may
appoint a fit person to discharge functions of the office of hereditary trustee until the disability
ceases or another successor succeeds to such office:

Provided that in making any appointment, the Dharmika Parishat shall have due regard to the
claims of members of the said family, if any entitled to the succession".
13. As held by the Division Bench of this court in Subash Chandar Naik's case supra, after an
overview of the provisions of the Act of 1997, the question as to who should succeed to the office of a
Hereditary Trustee is a question that could not have been decided by the Commissioner for HRI &
CE9, and could be decided only by a civil court. With these amendments vide the Act of 2011, which
is brought into effect with the clear intendment of protecting hereditary right of the Trustees and to
continue the management of such Family The Commissioner for HRI & CE was the prescribed
authority under the erstwhile provisions, but by virtue of the Act of 2011, this power is continued
with the Commissioner HRI & CE subject to the jurisdiction of the Rajya Dharmika Parshiat.
Temples by the Hereditary Trustees, the Dharmika Parishat is conferred with the adjudicatory
power "to resolve any dispute as to whether a Trustee holds or held office of Hereditary Trustee of
such institution" and "to record the name of the member of the family, who would be entitled to
succeed to the office of the hereditary trustee, whenever a permanent vacancy occurs and if there is
no dispute has to succeed to the office of the hereditary trustee''. When these powers are considered
in the light of the express stipulations in section 25-A, there would be no doubt that the power in the
Dharmika Parishat to adjudicate is confined to a narrow vertical of "resolving a dispute as to
whether a Trustee holds or held office as Hereditary Trustee" as against a larger jurisdiction to
decide who would be entitled to succeed to the office of Hereditary Trustee in terms of the personal
law applicable. The stipulations under Section 25-B are that (i) no Committee of Management shall
be constituted in respect of notified institutions managed by Hereditary Trustees unless there is no
legal heir to succeed to the office of the Hereditary Trustee, and (ii) the Dharmika Parishat could
only appoint a 'Fit Person' to discharge the functions of the office of Hereditary Trustee in the event
there being any dispute as regards who could succeed to the office of Hereditary Trustee.
14. As such, this court is the considered opinion that the jurisdiction of Civil Courts under Section 9
of the Code of Civil Procedure to decide questions relating to the rights to the office of Hereditary
Trustee of a Family Temple is not absolutely excluded under section 68 of the Karnataka Hindu
Religious Institutions And Charitable Endowments Act, 1997 even after the Karnataka Hindu
Religious Institutions and Charitable Endowments (Amendment) Act 2011, and the Dharmika
Parishat could only resolve a dispute, which is in the nature of an in praesenti dispute as to who
holds or held the office of the Hereditary Trustee as against the larger question as to who could
succeed to the office of the Hereditary Trustee in terms of the applicable personal law. This larger
question will have to be essentially decided by a civil court under its jurisdiction as per section 9 of
the Code of Civil Procedure.
15. The Dharmika Parishat, when it exercises its powers under section 20-A (1) (d) is essentially
resolving a dispute, which is a dispute in the nature of an in praesenti dispute, as to who holds or
held the office of the Hereditary Trustee, and it is trite that resolution of a dispute will have to be
after hearing all the parties to the dispute. As such, as accepted by the learned senior counsel for
both the parties, the requirement to comply with the principles of natural justice inheres in this
provision. The Dharmika Parishat under section 20- A(2)(vii) records the name of a family member

who is entitled to succeed to the office of the Hereditary Trustee, when such office falls vacant
permanently, and there is no dispute as to who could succeed to the office of the Hereditary Trustee.
Therefore, the Dharmika Parishat's power under section 20-A(2)(vii) is not unfettered. The
Dharmika Parishat is obliged under the provisions of section 20-A(2)(vii) to formulate an opinion as
regards there being no dispute about recording the name of a family member as Hereditary Trustee.
The condition in Section 20-A(2) (vii) that the Dharmika Parishat should formulate an opinion
about there being no dispute before it proceeds to record the name of a family member as provided
therein is not a condition that is being read into or an interpolation of a non- existent requirement.
The argument that the stipulation that Dharmika Parishat should formulate an opinion about there
being no dispute before it could record the name of a family member under Section 20-A (2) (viii)
would be an interpolation and contrary to the established principles of interpretation of statutes is
rather misconceived.
16. The Dharmika Parishat cannot formulate its opinion as regards there being no dispute merely on
the basis of the information provided by an applicant, and the Dharmika Parishat has to ascertain
whether there is indeed a dispute or not. Otherwise, the Dharmika Parishat could record the name
of an applicant despite a possible dispute from the other members of the family. It is settled law that
the requirement of compliance with the principles of natural justice will have to be read into the
provisions of a statute, unless a contrary intendment is obvious from the provisions of the statute.
There is no provision in the Act of 1997 which contains an expression of intendment to exclude the
application of the principles of natural justice. On the other hand, under the Karnataka Hindu
Religious Institutions and Charitable Endowments Rules, 2002, framed in exercise of power under
section 76 of the Act of 1997, the Dharmika Parishat, while inviting nominations to fill up vacancies
in the "Committee of Management", Dharmika Parishat is required to notify in the prescribed Form
the vacancies by affixing on the Notice Board of the institution concerned and the Notice Board of
the concerned Gram Panchayat/Taluk Panchayat. This process could be followed when Dharmika
Parishat exercises its power under section 20-A (2) (vii), and this would afford an opportunity to the
concerned to appear before the Dharmika Parishat and bring it to its notice that there is a dispute as
regards who could succeed to the office of the Hereditary Trustee. It is incumbent that the Dharmika
Parishat should not only form an opinion as aforesaid while exercising its power under section
20-A(2)(viii), it should also comply with the principles of natural justice, and there would be such
compliance if the Dharmika Parishat could notify, on the Notice Board of concerned Family Temple
and Notice Board of the concerned Grama/ Taluk Panchayat, its intent to record the name of a
family member as contemplated if there is no dispute in that regard.
17. It is obvious from a plain reading of the impugned proceedings dated 23.3.2018, and the order
dated 26.3.2018 that they are in exercise of the powers under section 20-A(2)(vii) and not Section
20-A(1)(d). These proceedings and order are pursuant to the application submitted by the
respondent Nos. 7 and 8 along with the copies of the different agreements and affidavits sworn to by
certain members of both the families. Prime facie, the appellant does not appear to be a party to the
agreements or the affidavits. Similarly, there is nothing to indicate that the appellant was aware of
the proceedings before the Dharmika Parishat or that the appellant was notified of the proceedings
before it was decided that the respondent Nos. 7 and 8 are to be declared as the Hereditary Trustee
and the successor Trustee respectively. Further, there is nothing on record to indicate that the

Dharmika Parishat has been able to formulate an opinion that there is no dispute amongst the
members of the different branches of these two families as regards recording the names of
respondent Nos. 7 and 8 as the Hereditary Trustees and the Successor Trustee respectively. As held
above, it was incumbent upon the Dharmika Parishat, in terms of section 20-A(2)(vii), especially
when it has referred to earlier proceedings, to formulate an opinion that there was no dispute.
Furthermore, the Dharmika Parishat has also not considered its own order dated 8.2.2013 in the
earlier proceedings where it concluded that the proceedings before it was summary in nature and
the questions raised ought to be decided in a regularly constituted suit in a competent court of law.
The Dharmika Parishat, in the considered opinion of this court, should consider the above
circumstances as well as the other grounds urged herein and formulate an opinion about the
existence of a dispute between the appellant and the concerned respondents before recording the
name of the respondent Nos. 7 and 8 in terms of the agreements/affidavits submitted by the
appellant. As such, the impugned proceedings dated 23.3.2018 and order dated 26.3.2018 are not in
accordance with the requirements of the provisions of section 20-A(2)(vii) and are liable to be
set-aside. Further, this court is also of the considered opinion that, it would be just and reasonable,
for this court to remit the matter back to the Dharmika Parishat for re-consideration clarifying that
no opinion is expressed on any of the respective contentions except considering such contentions for
the purposes of answering the questions formulated. As such, the following order:
a) The appeal is allowed in part, and the impugned proceedings dated on 23.3.2018
of the Dharmika Parishat in its 14th Meeting, and the consequential order dated
26.3.2018 by the Commissioner for Hindu Religious Institutions and Charitable
Endowments are set aside.
b) The matter is remitted back to the

Dharmika Parishat to consider the
and 8 after affording an opportunity to the appellant to file his objections thereto, in
accordance with law.
c) No costs.
SD/-
JUDGE nv ct:sr BMSPJ:
22.2.2019 MFA NO.7470/2018
ORDER
After the judgment is pronounced, the learned counsel for the appellant and the counsel for the
respondents submit that a date may be fixed for the appearance of the appellant and the concerned
respondents in the present proceedings before the Rajya Dharmika Parishat. Accordingly, it is
directed that the appellant and the concerned respondents shall appear before the Rajya Dharmika
Parishat on 18.3.2019 at 3p.m.
SD/-
JUDGE nv

Karnataka High Court DR M Sunil Hegde Vs State of Karnataka On 22 February, 2019 Author: B.M.Shyam Prasad

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Karnataka High Court DR M Sunil Hegde Vs State of Karnataka On 22 February, 2019 Author: B.M.Shyam Prasad

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Dr M Sunil Hegde vs State Of Karnataka on 22 February, 2019

Karnataka High Court

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 22ND DAY OF FEBRUARY 2019

THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD

MISCELLANEOUS FIRST APPEAL NO.7470 OF 2018 (RES)

DR. M. SUNIL HEGDE

2. RAJYA DHARMIKA PARISHATH

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4. THE DEPUTY COMMISSIONER

5. THE ASSISTANT COMMISSIONER

6. SRI VEERABHADRA TEMPLE HIRIYADKA

7. SRI M. GOVARDHAN DAS HEGDE

8. SRI. HARSHAVARDHAN HEGDE

(BY SRI. H. SUBRAMANYA JOIS, SENIOR ADVOCATE FOR

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER

CHARITABLE ENDOWMENTS ACT, 1997 PRAYING TO SET ASIDE

THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN

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HEARD AND RESERVED ON 06.12.2018 AND COMING ON FOR

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2) Whether Rajya Dharmika Parishat/Tribunal could direct the parties to go to civil

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(b) as to whether a temple is a public, private or denominational temple;

(c) as to whether an institutions is a religious institution or a composite institution;

(d) as to whether a trustee holds or held office as hereditary trustee of such

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(2) The Dharmika Parishat.-

"25A. Provision relating to institution managed by Hereditary Trustee.-

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b) The matter is remitted back to the

JUDGE nv ct:sr BMSPJ:

22.2.2019 MFA NO.7470/2018

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