ORDER
H.V.G. Ramesh, J.
1. The petitioner in WP 38148/2000, claiming to be the Sajjada of Hazrath Dada Hayath Meer Khalendar Sree Guru Dattatreya Baba Buden Swamy's Dargha has filed this petition seeking for issuance of a writ of certiorari or any other relief to quash the order dated 29.11.2000 passed by the Deputy Commissioner, Chikmagalur District and the order of the Divisional Commissioner, Mysore dated 17.11.2000 and, to quash annexures N & O - the proceedings of the Government and to issue a writ of mandamus to direct respondents 2 and 3 from interfering with the peaceful management and administration of the said Dargha and Peetha and for such other orders.
2. According to the petitioner, Guru Dattatreya Baba Budan Swamy's Dargha situate at Bababudangiri Hills at Chikmagalur District is an ancient important institution held in high esteem by Hindus and Mohammedans and is worshiped by large number of pilgrims all over India. According to him, it is presided by the Sajjaada or Matadhipathi and the said religious office of Sajjadanashin is a hereditary office. The history of the shrine was published in the year 1930 in V:5 of the Mysore Gazette. It is averred in the petition that the annual Urs of all the saints will be conducted along with the Urs of Dada Hayath Khalender Dattatreya Swamy. There are buildings like Langer Khana, Chilla Khana, Musafir Khana, Fakir Chowk and Office. There is a Mujawar appointed by the Sajjada to perform daily rites inside the cave and he is the one who enters the sanctum sanctorum of the institution and distributes Thirtha to devotees of both the communities and he also lights the Nandadeepa and puts flowers to the Paduka. The recognised Hindu Gurus of different mutts are also taken inside the cave gate to offer their respects to the paduka. The Mujawar takes Sambrani and performs religious rituals inside the main shrine between 7.00 and 8.00 pan. daily. According to this petitioner, Sajjada performs the Urs of Dada and all other saints as per the prevailing customs and offers Fateha and no other functions apart from the Urs is conducted from the said Dargah. It is a hereditary seat and the Sajjada appointed by management of Dada Hayath is conducting the daily rituals from tune immemorial and only Syeds can be the Swamis of the Mattas.
3. The grandfather and father or the petitioner were recognised as Sajjada as per annexure B dated 4.6.1945. The deceased Syed Peer Mohammed Shah Khadri had sent letters to the Tahsildar, Chikmagalur Taluk on 20.1.1995 and 22.9.1999 informing about the nomination of the petitioner as Sajjada and similar letter was sent to the Commissioner for Religious & Charitable Endowments on 21.10.1999, at Bangalore regarding his nomination as Sajjada which are at annexures C, D and E. The petitioner is officiating as Sajjada from the date or death of his father.
4. According to the petitioner, on 29.11.2000 annexure F, he received a letter to the effect that he was nominated as a Member of the Executive Committee of Guru Dattatreya Swamy Bababudan Dargha and also the proceedings of the Government wherein he was recognised as a Shah Khadri and not as Sajjada and that he has to perform religious rituals and the management and administration is taken over by the Muzrai Department and that Urs and Datta Jayanthi will be performed by the Committee appointed by the Muzrai Department. The said order has been passed as per the provisions of Chapter VIII Rule 1 of the Mysore Muzrai Manual. The said Manual has no statutory powers under which annexure F was passed. The Manual is only an instruction by the then government of the Maharaja of Mysore in the form of administrative instructions. The Karnataka Religious & Charitable Institutions Act of 1927 came into force on 1.4.1927 whereas as per Rule 11 of the Mysore Muzrai Manual, the Rules were issued on 11th February 1852 by the then Commissioner for Management of the affairs of the Devasthanams and Chatrams. The Committee can be appointed under the Karnataka Religious & Charitable Institutions Act, 1927 ('Act' for short), there is an elaborate procedure under the Act for appointment of the Committee and to take over the management and the properties of the institution. The respondent authorities have failed to consider the provisions of the said Act. It is stated that Chapter XI of the Muzrai Manual applies to Mohammadan institutions and not Chapter VIII. Further, it is stated that the institution is not receiving any government grants since 1980 as such, the respondents have no control over the institution and the Government has acted totally without jurisdiction. Rather, the petitioner is managing the affairs of the institution according to the Rules of Succession and the petitioner had become the Sajjada by virtue of succession. By passing an order at annexure F, the Government is trying to circumvent the decree of the High Court in RFA 119/1980 which had recognised the line of Sajjada and the line of succession, it is also stated that when the Karnataka Board of Wakfs by notification dated 19.10.1964 proposed to take over the institution, a civil suit was filed against the Board of Wakf and also the Commissioner for Religious & Charitable Endowments and also against the then Sajjadanashin of the Peetha in OS 25/1978 before the Civil Judge, Chikmagalur and on 29.2.1980 the said suit was decreed. According to the petitioner, the status of the Sajjada had been confirmed in the said suit. Against the said order, the Wakf Board preferred an appeal in RFA 119/1980 which came to be dismissed while confirming the order of the Trial Court, against which, SLP was preferred before the Apex Court in No. 17046/1991 and the said SLP came to be dismissed confirming the order of the Trial Court. It is further stated, in pursuance of the same, the Commissioner for Religious & Charitable Endowments passed an order dated 25.2.1989. As such, the management and affairs of the institution has to be continued as it was prior to 1975. Accordingly, his position as Sajjada has to be continued in so far as rituals and management of the institution is concerned.
5. The father of the petitioner filed a WP 2294/1984 against the Commissioner for Religious & Charitable Endowments and the Assistant Commissioner/Tahsildar for Chikmagalur Taluk. By order dated 1.3.1985 - annexure L, the writ petition came to be disposed of with a direction to hold an enquiry through the Muzrai Officer regarding the practice that was being following prior to 1975 in respect of the management and affairs of the Sree Guru Dattatreya Baba Budan Swamy Dargha including the conducting of the Urs, its property and also all other matters pertaining to the institution. Stating that issuance of annexure F is without authority of law on the part of the respondents to take over the administration of the institution without an opportunity to the petitioner, the present petition is filed on various grounds.
6. WP 4262/2002 is filed by the petitioner seeking for issuance of a writ of certiorari to quash the Government Order dated 25.11.2000 in so far as it relates to the appointment of the 4th respondent as Shah Khadri i.e., petitioner in WP 318148/2000 for Sri Guru Dattatreya Swamy Baba Budan Dargha and also to quash annexure K dated 10.10.2001 issued by the 3rd respondent.
7. This petitioner claiming to be the descendant of one Ismail Sha through one Syed Sha to hold the post of Shah Khadri on the basis that his predecessors were appointed by the then Mysore Government. According to the petitioner, during the regime of Hyder Ali, Ismail Sha who was the Fakir of Srirangapatna was appointed as Daroji (Manager) to look after the affairs and management of Dargah at Janardhana Nagar. At that time, the cave temple was also sanctioned to be looked alter as there was no person to look alter the affairs and management of the same. The said Ismail Shah died during 1737 and he had two sons - one Syed Budan Sha and another Syed Sab. This petitioner claims to be the descendant of Syed Budan Sha who became the Daroji and Syed Budan Sha is called as Baba Budan Sab and thereafter, Daroji was called as Sajjadanashin, successor to the Dargha. According to him, since the institutions were granted by the Government, the same is governed by the Act and the succession to the post of Sajjadanashin will be with the family of Shah Khadri which is by way of appointment and not by hereditary succession. During the lifetime of Sajjadanashin, he will nominate the successor. As per annexure E, one Syed Peer Mohammad Shah Khadri was appointed and he expired on 25.10.1999 and after his death, no person was recognised as Sajjadanashin. The appointment of the 4th respondent was made by order 25.11.2000 - annexure F but, the petitioner had been elected as Sajjadanashin of Baba Budan Dargha in the meeting held on 31.7.2001 - annexure G. Further, according to the petitioner, Ismail Shah was appointed by Hyder Ali who had two sons (adopted). For the succession to Sajjada office there was a dispute between them and Tippu Sultan had decided the dispute and held that the right belongs to both the lines and issued a Sannad. A fatwa was subsequently issued in this regard on 3.1.1820 recognising the right to management in favour of both the parties. Thereafter, Mohaddeen Shah Khadri s/o Mera Shah Khadri obtained exclusive possession of the office during the minority of Syed Razar Hussainee s/o Attaulla Hussainee who on attainment of majority, had filed a suit against the former before the Saddar Principal Munsiff Court of Ashtagram Division in OS 200/1837 and obtained a decree for a third share. In appeal No. 23/1839, parties entered into a Razianama accordingly, there was a decree that the opponent should be paid an annuity of Rs. 200/- per year in perpetuity by the party in possession of the Dargha. In default the management of Dargha has to be delivered to the opponent or his heirs. The petitioner is the descendant of Syed Raja Husainee who was a parry to the decree. After the decree, the party in possession of the management of the Dargha made payments as such the petitioner became entitled to receive payments. After 1980 onwards, no payments were made despite the demand. In the meantime, the then Sajjadanashin died on 25.10.1990 at that time, petitioner was ill and taking advantage of the same one Firoze Mohammed Khan approached the petitioner seeking for authorisation to manage the affaire of Baba Budan Dargha and also took important documents pertaining to the Dargha. Thereafter, petitioner learnt that the 4th respondent was appointed as Shah Khadri. On coming to know that, Firoze Mohammed Khan is acting against the interest of the petitioner in connivance with the 4th respondent, the petitioner has withdrawn the power of attorney executed in favour of Firoze by notice dated 1.8.2001 and has also asked to return the documents. Later, this petitioner requested respondents 1 to 3 to recognise him as the Sajjadanashin. The same was rejected. According to the petitioner, one Firoze Mohammed had filed WP 37878/2000 for a direction to the respondents against the interest of the petitioner. One more petition is filed by Mohammed Hayeli Peer in WP 5280/2001 challenging annexure F apart from the 4th respondent who filed WP 38148/2001. Hence, this writ petition being aggrieved by the order at annexure F appointing the 4th respondent as the Shah Khadri.
8. In WP 43621/2003, the petitioner has sought for to call for the records on the file of the 1st respondent in No. ADM 7 PTN 9 1984-85 and to issue a writ of certiorari quashing the order passed by the 1st respondent at annexure B dated 25.2.1989 and the order at annexure C dated 7.7.2003. In the alternative a direction is sought for to respondents 1, 3 and 4 to conduct fresh enquiry by giving sufficient opportunity to the concerned persons and for such other relief.
9. The petitioners are said to be religious and charitable trust with aims and objectives to safeguard, protect and develop Sri Dattatreya Peeta Devasthana, the cave temple at Inam Dattatreya Peetha village of Chikmagalur Taluk at Chandradrona Parvatha and to maintain its sanctity as a place of worship for the devotees of Sri Guru Dattatreya Devaru in particular and the public in general. It has also sought to preserve, protect and develop the property such as lands, structures acquired from time to time by the Devasthanam. According to the petitioners, Guru Dattatreya Peetha Devasthanam is a cave temple and is an ancient one in which Guru Dattatreya Swamy a hindu saint is believed to be an incarnation of Lord Vishnu performed penance, resided, practised and preached vedantha philosophy to his devotees and his four Shishyas. The place where Sree Guru Dattatreya was sitting for penance is revered as Peetha of Guru Dattatreya. The disciples and followers during his life time, the followers of Natha pantha from North India are main disciples and residents of local area have started visiting the Devasthanam to offer pooja to Guru Dattatreya. Before his disappearance from the Cave Temple, he had left the Padukas and nandadeepa in the peetha for which pooja is performed and also to offer Bhakthi. From time immemorial, every year on Margashira Poornima the day on which Sree Gurudattatreya was born, is being celebrated as Datta Jayanthi along with any other hindu festival in the Peetha. The followers of the Devasthanam donated extensive cultivable land, jewellery and large sums of money. Since the said Devasthanam became a place of worship, the governing body has realised that for maintenance of the Peetha, adequate provisions for income has to be made and persuaded philanthropic individuals and institutions to make grants of villages and also financial grants to the Devasthanam. And accordingly, thousands of acres of land stood in the name of the Devasthanam. The management of the Devasthanam was with the Poojaries and Devotees. Since the Rulers and Governments had extended grants, it is a major muzrai institution which is governed by the Mysore Religious & Charitable Institutions Act, 1927 and as such, the ultimate control of the management of the Devasthanam is with the 1st, 3rd and 4th respondent. There is also a mention in the Gazetteers, Ephigraphia of Karnataka and Mysore Archaeological Report regarding the grants made by the King of Anegondi and Kekadi. According to the petitioners, in course of time during the regime of Hyder Ali the management of the Devasthanam slipped into the hands of persons following the Islamic religion and he appointed one Ismail Sha Khadri, a Fakir from Srinrangapatnam to look alter the affairs of the Devasthaam and to collect the huge revenue of the Peetha. Since then, the muslims have managed the Devasthana and the Manager is called as Sajjada Nashin. In the year 1976, a suit in OS 75/1976 before the Civil Judge, Chikmagalur came to be filed by one B.C. Nagaraja Rao and Chandrashekar claiming to be hindu devotees representing hindu community against the Wakf Board and the respondents herein. The said case was transferred to the District Judge, Chikmagalur and was renumbered as OS 25/1978. The suit came to be decreed by judgment dated 29.12.1980 and the said order was confirmed in RFA 119/1980 on 7.1.1991 which was also farmer confirmed by the Supreme Court. However, the 2nd respondent herein approached the 1st respondent with a grievance that he has been aggrieved by the orders passed by the 3rd and 4th respondents acting under Section 39 of the Mysore Religious & Charitable Institutions Act, 1927. The 1st respondent is said to have dismissed the revision confirming the orders passed by the 3rd and 4th respondent. The 2nd respondent challenged the said order before this Court in WP 2294/1984. The writ petition came to be disposed of on 1.3.1985 with certain directions as at annexure A. Further, the 1st respondent, as per the direction of this Court, has called for the report of the 3rd and 4th respondent. A public notice was issued calling for information and the 3rd and 4th respondents thereafter are said to have submitted their reports and 2nd respondent also has been inquired and he gave his statement. Subsequently, the 1st respondent passed on order dated 25.2.1989 in ADM 7 PTM 9-84-85 codifying the several customs and practices prevailing before 1975 in the Devasthanam as per annexure B. In the meantime, the petitioner is said to have filed WP 31580/2000 and the said writ petition came to be disposed of on 15.3.2001. The 2nd respondent is also said to have filed WP 38148/2001 claiming certain relief and another WP 42621/2002 is filed by one Syed Bandagi Hussaini Shakadri the rival claimant for the Sajjada Nashin post. Further, according to the petitioner some other devotees of the Dargha have also filed WP 37878/2000 and WP 5280/2001 by way of public interest litigation which were dismissed by order dated 10.6.2002. In the said petitions, according to the petitioner, the 3rd and 4th respondents have contended that the practices and customs were codified and the hindu devotees cannot be permitted to offer their prayer through Archaka. On coming to know of the said order, review petition was filed on 21.4.2003 as per Section 39 of the Mysore Religious & Charitable Institutions Act, 1927 before the 1st respondent and the said review petition came to he rejected by order dated 7.7.2003 in No. ADM 7 RP 5/2003-4 as per annexure C. As such, petitioners have filed this petition being aggrieved by the order passed by the 1st respondent as per annexures B and C dated 25.2.1989 and 7.7.2003 respectively.
10. On behalf of the respondents in WP 38148/2000 statement of objections have been filed. While resisting the petition as frivolous and vexatious, it is stated that the contention of the petitioner that he is the Sajjada of Hazrath Dada Khalander Guru Dattratreye Baba Budan Dargha is not correct and the petitioner is appointed as Shah Khadri by the Government very recently. The Bababudangiri is a religious place consisting of Datta Peetha and Paduka which is sacred for Hindus and it is also denied that the Sajjada performs the Urs and also pooja to Dattatreya Swamy. But, the petitioner only performs Urs to the Dargha and it is not a hereditary seat. The management was looked after by the predecessor of the petitioner. The petitioner is officiating as Shah Khadri under the control of the State Government at present and it is also denied that petitioner is a direct descendant and successor of Bababudan. The Karnataka Religious & Charitable Institutions Act, 1927 is still in force. The institution is a major muzrai institution. As such the provisions of Muzrai Manual are applicable. The Committee has been appointed under the provisions of 1927 Act. Chapter XI of the Muzrai Manual is very much applicable to mohammedan institutions and the institution belongs to both muslim and hindu devotees. This aspect has been clearly spelt out in the judgment of this Court. The institutions was getting a sum of Rs. 1,800/- as cash grant from the Government and the payment was received by the Shah Khadri up to 1995 as such the Government has control over the said Institution. It is also stated that the respondent authorities are not trying the circumvent the decree of the Court in RFA 119/1980. Further, on enquiry, it was found that during the tenure of the previous Shah Khadri, there was gross misuse of property of the institution and accordingly, the respondent have taken a decision in the interest of the smooth administration of the muzrai institution and maintenance of communal harmony. It is further stated that the post of Sajjadanashin is not hereditary and in such a situation, the Government has appointed the petitioner as Shah Khadri to take over the religious aspect of the institution keeping for itself, administrative functions and also the management of property in the committee constituted under the Chairmanship of the Deputy Commissioner and the Muzrai Officer.
11. IA is filed for impleading by the petitioner in 43261/2003 in WP 38148/2000 stating that any order passed in respect of this petition will directly affect the interest of the petitioner and also stating that while disposing of WP 31580/2000 by order dated 15.3.2001, liberty was reserved for the petitioner/applicant to get itself impleaded in the above petition. The said IA is allowed.
12. Objections are also filed by respondents 4 to 21 in connection with WP 38148/2001. In their objections similar to the objections filed on behalf of the State, respondents have contended that it is not correct to state that the institution is presided over by the Sajjada or Mathadipathi and that it is a institution belonging to both religions undisputedly and it could neither be treated as a math or on par with a mohammedan institution. The institution is a muzrai institution which belong to Hindus as well as mohammedans. The administration of the institution is handed over to the Government by virtue of the Court order which has also been upheld by the Supreme Court. The Dargha/Peetha do possess all the characters of the hindu religious institution with respect to monumental structures and mode of worship. The said holy place comprise of Datta Peetha and Padukas of Dattatreya which have been believed to be sacred for Hindus. However, the rites and rituals within the sanctum sanctorum are being performed by a Mohammedan. However, since ancient times, the devotees belongings to both religions have been attending the Shrine and are offering their prayers peacefully without there being any dispute or differences. Only recently, differences emerged due to instigation by some vested interests. The annual Urs were performed only to the Saints buried in the Dargha but, it is misleading to state that the Urs is being performed to Dattatreya Swamy. Datta Jayanthi has been celebrated for Dattatreya Swamy every year. It is denied that no unmarried man can be a Swamy though the rituals inside the Dargha/Sanctorum have been performed by the Mujawar who is an unmarried man. It is further stated that the Sajjada was managing the affairs of the Dargha/Peetha only in respect of rites and rituals and he was so doing as a representative of the Government by utilising the annual grant which was being paid to him by the Government since ancient times. It is denied mat Hazrath Shah Jamal Allah Magarabi is the descendant of Bababudan and continued as Sajjada by succession and it is also denied that the petitioner is the direct descendant and successor of Bababudan. It is further denied that the grandfather of the petitioner was recognised as Sajjada. The deceased Syed Peer Mohammed Shah Khadri had no authority to nominate a Sajjada. The prevailing practice was to suggest a name of the person who is fit to manage the rituals, affairs of the Peetha/Dargha and it is for the Government to approve the appointment since ancient times. The said appointment was restricted only in respect to rites and rituals which he used to manage as a representative of the Government. These respondents have also denied that the petitioner was officiating as a Sajjada and rather contended that he was only officiating as a Shah Khadri. The petitioner could be nominated only as a Sajjada if the Institution exclusively belongs to Mohammedans. Accordingly it is stated that admittedly the institution belongs to the devotees from both the religions. There is no violation of the rights of the petitioner. Even the predecessor of the petitioner was managing the affairs under the control and supervision of the Government. In pursuance of the enquiry and findings in respect of the mismanagement of the funds of the institution, the Committee was constituted for the management of the affairs of the same. The impugned order passed is well within the jurisdiction of the respondent authority and since the devotees from both the religions are entitled to offer prayer to Peetha/Dargha, the same cannot be treated as a Math. It is also stated that the decision of this Court and the Apex Court that the institution is a Muzrai institution has been crystalized into finality and as such, the Muzrai Manual is applicable and the provisions of the Karnataka Religious & Charitable institutions Act is applicable. The management committee has been constituted acting under the provisions of the said Act and there is an alternative efficacious remedy available to the petitioner and without exhausting the same, petitioner cannot exercise his remedy under Article 226 of the Constitution. Even the decision in RFA 119/1980 no way recognises the line of Sayada by way of succession but rather, it confirms the position that the institution belongs to both the religions and it is a Muzrai Institution and thereby directed to transfer the management to the Government which order has been approved by he Apex Court. Further, it is specifically stated that after due enquiry, as per the order in OS 25/1978, the Assistant Commissioner, Chikmagalur after enquiry submitted a report dated 28.1.1988 in ADM 7 PTN 9/84-85. After due enquiry, he has recommended constitution of a committee for fair management of the Institution. Concealing the finding of the said Report, a 2nd report was called for by the Commissioner for Endowments vide letter dated 28.1.1988. The 2nd report was submitted on 7.9.1988 by the men Deputy Commissioner without considering the enquiry report made by the Assistant Commissioner on 28.1.1988. The said report of the Deputy Commissioner is solely based on the statement made by the then Shah Khadri whereas the report of the Assistant Commissioner was based on due enquiry of devotees belonging to both the religions. As such, the report of the Deputy Commissioner nor the decision of the Commissioner dated 25.2.1989 bears the sanctity of law. The decree of the Civil Court ordered that the institution shall be transferred to the Government since the devotees from both the religions are entitled to offer prayers at Dargha/Peetha.
13. It is further stated that WP 2294/1984 was with respect of conducting the annual Urs wherein this Court held that the practice followed prior to 1975 have to be continued as directed by the Civil Court. Since the Civil Court categorically held the institution belongs to both the religions and thus directed that the management of the Dargha/Peetha shall be retransferred to the government as being done prior to transferring the same to Wakf Hoard in 1975. The order of the Civil Court has been confirmed by the Apex Court. Further, it is stated that the Government found it necessary to take appropriate steps to prevent mismanagement and for the smooth running of the institution and constituted a committee of which Shah Khadri is one of the member who is free to put forth his requirements before the Committee with respect to rites and rituals. Since the post of Sajjada is not hereditary, the Government appointed the petitioner as Shah Khadri and his only right is to look after the rites and rituals and all the income is duly accounted by the management. Accordingly, it is submitted that there is no merit in the petition.
14. Heard the counsel for the respective parties and the learned Government Advocate.
15. On behalf of the petitioner in WP 38148/2000, it is argued the office of the Sajjadanashin is a hereditary office. The act of the Government in taking over the administration is illegal and arbitrary and without hearing the petitioner. Further, reducing the position of the petitioner to that of a Shah Khadri is virtually taking away the right which vested with the petitioner. Accordingly, it was argued that the petitioner was looking after the management as well as the performance of rituals in respect of the Dargha as well as the Paduka of Dattatreya Swamy and offering flowers and also was taking care of performance of the Urs regularly.
16. On behalf of the petitioner in WP 4262/2002, it is argued that the predecessors of the petitioner were appointed as Manager to look after the affairs of the management of the Dargha during the regime of Hyder Ali and one Ismail Sha was looking after the affairs and management of the Dargha on appointment by Hyder Ali. The said Ismail Sha had two adopted sons and one of them is Syed Budan Sha who has succeeded Ismail Sha as Daroji and is also called as Baba Budan Sab and was acting as Sajjadanashin. Since the succession to the post of Daroji is by way of appointment and not by hereditary succession and the family members of Baba Budan Sab alone could be nominated as his successor. The Sajjadanashin will select his successor and he is elected by the family members and must have qualifications as per annexure D, the order dated 24.11.1902. The person who fulfills all required qualification is entitled to be appointed as Sajjadanashin. As per annexure E, one Syed Peer Mohammed Shah Khadri had been appointed and he expired on 25.10.1999 and after his death, no person was recognised as Sajjadanashin. The petitioner is the descendant of Syed Rajar Hussainee who is a party to the decree in OS 200/1837 and he got a decree for a third share. As per the decree, the opponent should be paid an annuity of Rs. 200/- per year permanently and in default of payment, management of the Dargha has to be delivered to the opponent, his heirs and descendants. After the decree, the party in possession of the management of the Dargha made payments, and then the petitioner became entitled to receive payments. From 1980 onwards, no payments were made. Meanwhile, the petitioner fell ill and taking advantage of his illness, one Firoz Mohammed Khan approached with a power of attorney seeking to authorise him to manage the affairs and the said Firoze Khan acted against the interest of the petitioner and colluded with the opposite parties. Although petitioner has given a representation to appoint him as Sajjadanashin the same has not been considered rather, the petitioner in WP 38148/2000 has been appointed as Shah Khadri against the rules of recognition of Sajjadanashin. According to the petitioner, he should have been appointed to the post as a matter of right.
17. It is argued on behalf of the petitioner in WP 43621/2003, the order at annexure B is passed without jurisdiction in violation of the direction of this Court wherein this Court, while disposing of the earlier writ petition, had directed the 1st respondent to conduct an enquiry after obtaining reports from the 3rd and 4th respondents. Instead of holding an enquiry, the 1st respondent has codified the practice of the institution which is beyond the scope of the enquiry. Annexure B i.e., the order passed by the 1st respondent on 25.2.1989 codifying the several customs and practices is without looking into the report submitted by the 3rd respondent wherein the 3rd respondent has clearly explained the practice relating to the Urs and festivals and 3rd respondent had recommended to appoint the Archaka to perform the prayer on behalf of the Hindus at large. The affidavits and statements filed by the hindu devotees were ignored and only acting upon the statement of the 2nd respondent, 1st respondent has passed the order at annexure B as such, annexure B has to be quashed. The prime issue for enquiry was whether the 2nd respondent mismanaged and misappropriated the funds of the institution and whether he has failed to provide basic facilities to the devotees. Rather, ignoring these aspects at the instance of the 2nd respondent, the 1st respondent codified the practice followed which is not permissible under Section 39 of the Act Accordingly, he has sought for quashing annexure B and in the alternative, he has sought for a direction to conduct fresh enquiry by the 1st, 3rd and 4th respondent by giving sufficient opportunity to the concerned.
18. In the light of the arguments advanced, let me consider whether the appointment of Shah Khadri in place of Sajjadanashin as per the contention of the petitioner in WP 38148/2000 is illegal and whether the petitioner in WP 4262/2002 is entitled to be appointed as Sajjadanashin or Shah Khadri and whether the petitioner in WP 43621/2003 are entitled to the relief as sought for and to quash the order passed at annexure B passed by the 1st respondent.
19. In WP 31580/2001 a public interest litigation disposed of by this Court in Division Bench, wherein the petitioner sought for a mandamus to take over the management of the Devasthana as proposed in annexures C and D therein and to hand over the management of the Devasthana to the petitioners and also a direction to the respondents to allow the petitioners and Hindus at large to perform pujas and bhajans and other festivals and rituals in the Devasthana and, for a further direction to the respondents to take action against the misappropriation of funds and alienation of the land, the Division Bench of this Court directed the petitioners in WP 31580/2000 to implead themselves in the Writ Petitions filed in 38148/2001 and also 52801/2001. Regarding handing over management to the petitioner based on the trust deed, this Court has held that essentially it is a civil dispute which needs investigation into both factual and legal position and as such, it did not give any finding on that aspect. In so tar as allowing the petitioners therein to perform poojas and bhajans, it is held that whether the petitioner can claim such a right cannot be agitated in a public interest litigation and it has also noted therein, as per the decree of the civil court in OS 25/1978, both muslims and Hindus are allowed to enter the Dargha and they are permitted to perform pujas and that whatever rights and obligations are there they will have to be given effect to as per the Decree. As regards misappropriation alleged, the Division Bench has opined that the appointment of a managing committee seems to be a step taken in that direction. It is also noted that whether the said step is in accordance with law or not will be decided in the other writ petitions and that it is premature to say that no action will be taken against erring persons.
20. The prayer of the petitioner in WP 38148/2001 and also in WP 4262/2002, have to be considered together. In these two petitions, the grievance of the petitioners is regarding the post of Sajjadanashin. Of course, acting under the provisions of the Karnataka Religious & Charitable Institutions Act, 1927 the respondent authority have taken action to appoint the petitioner in WP 38148/2000 as Shah Khadri. Admittedly, the institution is declared as a major muzrai institution. This institution is a charitable institution even as observed by this Court. In exercise of its power and also looking into the some misappropriations and allegations made and alter an enquiry, the petitioner was said to be appointed as a Shah khadri to perform the rituals and rather the administration is to be looked after by the Committee constituted by the Government in this regard wherein petitioner is also said to be one of the member of the Managing Committee headed by the Chairmanship of the Deputy Commissioner and the District Muzrai Officer. Under the circumstances, acting under the provisions of the Act, if the Government has taken steps to appoint the committee to administer the affairs regarding management of the property and financial position alter due enquiry, the same cannot be held to be illegal.
21. As it is clear from the order of this Court and the Civil Court, the place being a holy place devotees from both Hindus and Mohammedans come in large numbers and when admittedly it is declared as a charitable institution exercising power under the provisions of the Act, if the Government has taken a decision to appoint the Committee to look after the administration and management of the property and finance, the same is well within the purview of the Government although it is claimed by the petitioner that he was also looking alter the management in addition to looking after the religious aspect.
22. It appears there is a dispute between the petitioner in WP 38148/2000 and in WP 4262/2002 as to the post of Sajjadanashin/Shahkhadri. Since I have held that to look alter the administration of the charitable institution which is being worshipped by both Hindus and mohammedans, when the management is taken over by the Committee appointed by the Government, question of petitioners claiming management of the institution does not arise. However, as to the appointment of Shah Khadri to perform the religious rituals, it would be considered by the Committee appointed as there are rival claimants both claiming to be the descendants and also entitled to be continued as the Sajjadanashin. At the most, the interest of the petitioners would be considered only to appoint either of them as Shah Khadri based on the enquiry to be held and on such receipt of the application by the Committee from these petitioner. Since already the petitioner in WP 38148/2000 is performing as Shah Khadri, his grievance as to the continuation of the post as well as the grievance of the petitioner in WP 4262/2002 has to be considered by the Committee by holding an enquiry and to identify who is eligible to be appointed as Shah Khadri. Accordingly, both the petitions are disposed of.
23. The grievance of the petitioner in WP 43621/2003 is that the 1st respondent has only taken note of the report of one Syed Peer Mohammed Shah Khadri and not considered the report submitted by the Assistant Commissioner and the Deputy Commissioner as to the prevailing practice that was in existence even prior to 1975 regarding the performance of religious rites and the practice followed. Of course this Court in WP 2294/1984 by order dated 1.3.1985 has directed the Commissioner for Religious & Charitable Endowments to enquire regarding the practice that was being followed or prevailing prior to June 1975 in respect of the management of the Institution after affording an opportunity to the petitioner and the devotees after public notice. Thereafter it was directed that the Commissioner on receipt of the report, shall take a decision. It appears as per the submission made, the Commissioner is shown to have taken a decision ignoring the report submitted by the then Assistant Commissioner of Chikmagalur District and also without hearing the public at large as to the prevailing practice prior to June 1975. It appears on perusal of the impugned order at annexure B, the 1st respondent made a reference to the enquiry conducted by the Deputy Commissioner but, however, he failed to take note of the report submitted by the Assistant Commissioner. It is the grievance of the petitioner that the Deputy Commissioner and the Commissioner have only heard the petitioner in WP 38148/2000 without giving opportunity to the petitioner and others in the instant case and also without taking into consideration the report of the Assistant Commissioner. However, relying upon the enquiry report of the Deputy Commissioner rather the 1st respondent had set aside the order of the Assistant Commissioner and also it appears he has not analysed as to why the order of the Assistant Commissioner has to he set aside while accepting the report of the Deputy Commissioner. Even without hearing the general public, such an order came to be passed. Under the circumstances, me impugned order passed by the 1st respondent at annexure B dated 25.2.1989 has to be quashed with a direction to the Commissioner to consider the enquiry report submitted by the Assistant Commissioner and also to hear the grievance of the petitioner and the general public in addition to the report of the Deputy Commissioner and pass orders in accordance with law.
24. Further, Article 25(1) of the Constitution reads thus:
Freedom of conscience & free profession, Practice & propagation of religion:
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
25. In the decision in the case of Gulam v. State of UP AIR 1981 SC 2199, the Supreme Court has held that the right to perform a religious practice may be acquired also by custom. When so acquired, it would have the protection of Article 25, with respect to all the religious rites, practices, observances, ceremonies and functions which are being customarily performed by the members of the petitioner community and not according to the version of the person who opposes.
26. Therefore, the Commissioner/1st respondent is directed to consider the grievance of the petitioners in 43621/03 as to the practice which was prevailing from time immemorial as to offering their prayer in accordance with the religious customs and practices and to recognise their rights regarding the offering of pooja to Paduka of the Swamy Dattatreya as per the religious customs of hindu devotees if it was so practiced, and to take into consideration the report submitted by the then Assistant Commissioner and take necessary steps to appoint Archaka if need be and also consider to allow to perform the religious customs and ceremonies following the hindu way of worship if such practice was in vogue prior to 1975 or even prior to the taking over of the administration by Hyder Ali and entrustment to one Ismail Shah a Mohammadan fakir in respect of management of the Datta Peetha and Dargha during his regime.
27. In the result, I pass the following order:
While quashing annexure B, WP 43621/2003 is allowed in part and matter is remanded back to the 1st respondent to consider and to pass orders in accordance with law after holding due enquiry as indicated above.
WP 38148/2000 and 4262/2002 are disposed of in terms of the above order.