ORDER
Ramabhadran, J.C.
1. The facts giving rise to this petition under Article 226 of the Constitution are, briefly, as follows:- On 26-6-1950, Mahant Bal Krishan Das of the Jagannath ji Temple at Nahan died. The Temple Committee of Nahan, under the chairmanship of Mr. Baldev Ram, then Deputy Commissioner, Sirmur, appointed the petitioner as Mahant of the said temple on 19-8-1950. This appointment was confirmed by the Himachal Pradesh Government in October, 1950. The petitioner's contention is that he has been performing his duties and managing the temple properties satisfactorily up to 23-9-1955, when he was relieved of his charge, by an order passed by the Collector of Sirmur district (respondent No. 4), purporting to be on behalf of the Himachal Pradesh Government, respondent No. 3.
Sant Ramanand, respondent No. 2, has been appointed by respondent No. 3 as interim manager, pending the appointment of a new Mahant. Dharam Das, respondent No. 1, along with Sant Ramanand, respondent No. 2, had made a bid to oust the petitioner from his office by means of a suit for declaration and possession, which, how. ever, was dismissed by the Senior Subordinate Judge, Nahan, on 7-7-1954. That decision was confirmed, in appeal, by the District Judge of Sirmur on 28-6-1955. While non-suiting the plaintiffs, both the Senior Subordinate Judge as well as the District Judge, Nahan, had, however, made certain observations in their judgments, which went against the petitioner.
2. Under these circumstances, the petitioner claimed that he could not be evicted by an executive order passed by respondents 3 and 4. Ha contended that respondents 3 and 4 Had not even given him an opportunity to show cause, before he was removed from his office. The petitioner complains that his rights to property, granted by the Constitution, have been arbitrarily and summarily infringed. Hence, this petition under Article 220 of the Constitution, wherein I am requested to issue a writ to respondents 3 and 4, directing them to restore the petitioner to the office of Mahant and remove the interim manager.
3. The petition has been opposed by respondents 2, 3 and 4 on various grounds. The respondents' case is that the Senior Subordinate Judge, as well as the District Judge had held, on specific issues, that the appointment of the petitioner, as Mahant, was ab initio void and improper, since the power of appointment vested in the Central Government and not in the Himachal Pradesh Government. In removing the petitioner from the office of Mahant, respondents 3 and 4 only gave effect to the findings of the civil Courts.
Pending the appointment of a new Mahant, in accordance with the findings of the Courts, the Collector of Sirmur district had taken the administration of the temple under his direct supervision. It was, categorically, denied that the petitioner had any 'fundamental right' to the office of Mahant. Consequently, there was no question of such right having been infringed. The appointment of a Mahant was within the discretion of the Central Government.
Since the appointment of the petitioner by the Himachal Pradesh Government had been, found to be invalid by the civil Courts, it was considered expedient to remove him from that office. By means of a subsequent application dated 27-12-1956, on behalf of respondents 3 and 4, it was brought to the notice of this Court that in September, 1956, the President has delegated to the Lieutenant-Governor of Himachal Pradesh, powers to appoint a Mahant to the temple in question.
It was, urged that the power of appointmentwould necessarily include the power of removaland, therefore, respondents 3 and 4 were wellwithin their rights in removing the petitionerfrom his office, in pursuance to the findings ofthe Civil Courts. I was, therefore, requested toreject the petition.
4. Arguments of the learned counsel for the parties were heard at Nahan on the 27th ultimo. For reasons to be stated shortly, I am of the opinion that this petition cannot succeed. I shall refer to the arguments advanced, on either side, seriatim.
5. Mr. Tek Chand for the petitioner argued that the position of a Mahant is a special one. He is more than a mere trustee Reliance was placed on Sri Lakshmindra Theertha Swamiar v. Commissioner, Hindu Religious Endowments, Madras, AIR 1952 Mad. 613 (A), where a Division Bench of that High Court observed that:
'The head of a mutt is not a bare trustee but occupies a peculiar position and has beneficial interest in the mutt property and its income. The headship of a mutt can, therefore, be considered as property within Article 19 (1) (f)'.
The Madras decision, referred to above, was confirmed by the Supreme Court in Commr. Hindu Religious Endowments Madras v. Laksmindra Theertha Swamiar AIR 1954 S. C. 282. (B). Their Lordships indicated that:
'In the conception of Mahantship, as in Shebaitship, both the elements of office and property, of duties and personal interest, are blended together and neither can be detached from the other. The personal or beneficial interest of the Mahant in the endowments, attached to an institution is manifested in his large powers of disposal and administration and his right to create derivative tenures in respect of endowed properties; and these and other rights of a similar character invest in the office of the Mahant with the character of proprietary right which, though anomalous to some extent, is still a genuine legal right. However, the Mahantship is not heritable like ordinary property.'
'The word 'property' as used'in Article 19(1) (f) of the Constitution, should be given a liberal and wide connotation and so interpreted, should be extended to those well recognized types of interest, which have the insignia or characteristics of proprietary right. Thus, Article 19 (1) (f) applies equally to concrete as well as abstract rights of property. The ingredient of both office and property, of duties and personal interest are blended together in the rights of a Mahant. The Mahant has the right to enjoy this property or beneficial interest so long as he in entitled to hold his office. To take away this beneficial interest and leave him merely to the discharge of his duties, will be to destroy his character as a Mahant altogether.'
6. Mr. Tek Chand then referred me to various passages from Mayne's Hindu Law, Mulla's Hindu Law and contended that in case it was desired to oust the petitioner from Ms office, action should have been taken against him in the manner laid down by Section 92, Civil Procedure Code.
7. Mr. Tek Chand further pointed out that respondents 3 and 4 had supported the cause of the petitioner throughout the litigation in the Courts of the Senior Subordinate Judge and District Judge of Sirmur. My attention was also invited to the objection, lodged by respondents 3 and 4 to an application under Order 40, Rule 1, Civil P. C., made by Dharam Das and Sant Ramanand (then plaintiffs-appellants) in the Court of the District Judge, Sirmur, wherein they had supported the petitioner.
8. Learned counsel for the petitioner stressed that respondents 3 and 4 should not have taken as somersault on the basis of certain remarks made by the Senior Subordinate Judge and the District Judge in their judgments. It was contended that these remarks were in the nature of obiter dicta, i. e. they were unnecessary for the decision of the cause and, therefore, no notice should have been taken of them. Mr. Tek Chand also complained that despite the fact, that the petitioner's appointment had been confirmed by respondent No. 3 and he had functioned, as Mahant, for nearly five years, he was abruptly turned out, without being given a chance of showing cause against the action taken against him. Mr. Tek Chand submitted that such a procedure ran counter to the natural principles of justice.
9. Mr. Tek Chand cited the following authorities:- Nathabhai Devidas v. Vaghjibhai Jhaverbhai, AIR 1928 Bombay 20(C). There, the facts were that the District Judge of Kaira, on a petition under the Indian Trusts Act 1882, removed from their office, the trustees, appointted by a will of the author of the trust Under those circumstances, a Division Bench of the Bombay High Court held that:
'A Court has no jurisdiction, to remove the trustees of a trust, who have been appointed by a will of the author of the trust, on the application of a person, who is not a beneficiary.'
'Applications for the removal of a trustee should undoubtedly be brought by a suit, and where it is alleged that the trustees have committed a breach of trust, that suit should ask for the delinquent trustees to make good the breach of trust. Further, the suit should normally ask for the administration of the trust estate by the Court.'
As learned counsel for the respondents rightly pointed out, this decision has no application to the facts of the present case. It is nobody's case that the petitioner was appointed trustee by a will of the last Mahant, or the founder of the temple. On the other hand, he was appointed by the State Government under the erroneous impression that it was competent to do so. When the error was pointed out by the Civil Courts, the position was rectified. Therefore, this ruling will not be applicable.
(ii) Tara Chand v. Harnam Singh AIR 1928 Lah. 237(2) (D). There, the facts were that the beneficiary requested the Court, by a petition to order the trustee to deposit certain trust monies in the Imperial Bank of Amritsar, or otherwise invest it in some approved securities. Under those circumstances, Broadway, J., held that:
'The District Judge had no jurisdiction to interfere with the discretion of the trustee, except on a properly instituted suit.' Here, as already stated, the facts are altogether different. Therefore, this ruling will not help the petitioner.
(iii) Mohinder Singh v. State of Patiala and, East Punjab States' Union, Patiala AIR 1955 Pepsu 106 (E). There, Chopra, J., was considering the question of the reversion of a S. I. Police as a measure of penalty and not on administrative grounds. Under those circumstances, it was held that :
'The provision made by Article 311(2) is mandatory. If an order of reversion is likely to stand as a bar to the future promotion of the officer in the normal course, since it casts serious reflections on his efficiency, and is made by way of penalty, there appears to be no reason why he should not be given a reasonable opportunity to show cause against the proposed action. But in a case where the order is made in the ordinary course of events or for some such other administrative reason, there is no occasion or necessity for an explanation of the officer to be reverted to his substantive post.' As the learned counsel for the respondents pointed out, there is no question of reversion here. The petitioner was appointed as Mahant under the erroneous impression that the power of appointment vested in the State Government. When the error was discovered, consequent to the decisions of the civil Courts, the petitioner was relieved of his charge. The petitioner could not claim the Mahantship as a matter of right. The learned Government Advocate also relied on the provisions of Section 16 of the General Clauses Act, whereby the authority, having power to make the appointment, shall also have power to suspend or dismiss any person, appointed in exercise of that power. Mr. Sita Ram pointed out that in September, 1956, the President delegated powers to the Lieutenant-Governor to appoint a Mahant to the temple in question. It was, therefore, contended that it would be within the competence of respondent No. 3 to remove the petitioner from his office.
(iv) Madhi Ram Bansi Lal v. Divisional Forest Officer, Nabha, AIR 1955 Pepsu 172 (F). There, Chopra,. J., was considering the scope of Article 311(2) of the Constitution. In that connection His Lordship remarked that: 'The principles of natural justice, and so also the rules of procedure for Departmental inquiries, require that the evidence, on the basis of which a public servant is proposed to be penalised, must be given in his presence.'
Article 311 has no application here. The petitioner, no doubt, was aware of the findings recorded by the Senior Subordinate Judge as well as by the District Judge, on appeal, to the effect that his appointment as Mahant was invalid, i. e. because the power of appointment vested in the Central Government. The order issued by the Collector, Sirmur, on 21-9-1956 on behalf of the Himachal Pradesh Government makes it clear that the petitioner was removed from office, pursuant to the concurrent findings of the Senior Subordinate Judge, Nahan, and the District Judge Sirmur, in civil suit Dharam Das and Ramanand v. Ram Das and Himachal Pradesh Government. News of his removal could mot have come to the petitioner as a complete surprise--in view of the findings of the civil Courts--which had framed a specific issue as to whether the power of appointment vested in the Himachal Pradesh Government subsequent to the merger of Sirmur State in Himachal Pradesh, and found against the petitioner.
10. Mr. Sita Ram for respondents 3 and 4 submitted that no notice was necessary to the petitioner, under the circumstances. He relied upon the following authorities:- Jayantilal Laxmishanker v. State of Saurashtra, AIR 1952 Sau. 59 (G). There, a Special Bench of that High Court held that:
'It cannot be laid down as an inflexible rule that every law which gives authority to the executive to encroach on a fundamental right must necessarily give an opportunity to the person concerned to be heard before any order is made to his prejudice. The question will depend on the nature of the legislation and the extent to which the fundmental right is contravened.'
On the same analogy, Mr. Sita Ram submitted that since the power of appointment vested entirely in the Government and the petitioner's appointment had been held to be ab initio invalid, no show cause notice was necessary.
(b). Jogendra Raj Kishore v. University of Allahabad, (S) AIR 1956 All. 503 (H). There, a Division Bench of that High Court observed that:
'In cases where an authority acts administratively, unless the order affects the fundamental rights of a person, it is not necessary in every case to give an opportunity to the person affected by the order of the authority to explain his conduct, particularly in cases where an order has been passed by an authority for the purpose of maintaining the discipline of an institution.' On the same analogy, it was urged thatsince the petitioner could not claim the officeof Mahantship, as a matter of right and sincehis appointment had been found by the civilCourts to be ab initio invalid, no burden wascast, upon respondents 3 and 4 to give anopportunity to the petitioner to show cause before taking action against him. I find considerable force in this argument.
(c) The State of Orissa v. Madan Gopal AIR 1952 S. C. 12 (I). There, their Lordships of the Supreme Court pointed out that:
'The issuing of writs or directions by the High Court is founded only on its decision that a right of the aggrieved party under Part III of the Constitution (Fundamental Rights) has been infringed. It can also issue writs or give similar directions for any other purpose. The concluding words of Article 226 have to be read in the context, of what precedes the same. Therefore, the existence of the right is the foundation of the exercise of jurisdiction of the Court under this Article.' Since it has been found that the petitioner cannot claim the office of Mahantship as a matter of right, the mere fact, that he was appointed thereto under an erroneous impression, cannot justify the presumption that the petitioner has any right, which would justify the issue of a writ.
(d) A similar view was taken in Gurcharan Singh Jodh Singh v. Chairman Delhi Improvement Trust, New Delhi, (S) AIR 1955 Punj 34 (J), where a Division Bench of that High Court indicated that: 'Proceedings under Article 226 of the Constitution can be invoked when there is a legal right which has been infringed or is about to be infringed or there is a legal wrong which has been inflicted or is about to be inflicted. If the petitioners were trespassers ab initio, had continued to he trespassers all along and were in unauthorised possession of the property it is not open to them to complain that they should not be evicted therefrom. The petitioners had no locus standi to invoke the help of the High Court.'
On the same analogy, it was argued that the petitioner has no locus standi to apply for a writ, since his appointment has been held to be ab initio invalid by the civil Courts.
11. To sum up, therefore, the petitioner has not established that he has any fundamental right to the office of Mahant. On the other hand, the civil Courts have found that his appointment was ab initio invalid. Therefore, there was no question of his having been 'deprived' of property. In Gajjanmal Mohanlal v. State of Himachal Prndesh, AIR 1957 H. P. 1 (K), I had referred to Dwarkadesh Shrinivas v. Sholapur. Spinning and Weaving Co. Ltd., AIR 1054 S. C. 119 (L), where Bose, J., had observed as follows :
'By substantial deprivation, I mean the Sort of deprivation, that substantially robs a man of those attributes of enjoyment, which normally accompany rights to, or an interest in, property.'
In the present case, I have shown that the petitioner could not claim the office of Mahant, as a matter of right. Therefore, there could be no question of his having been 'deprived' of something, which he did not possess.
12. In conclusion, the learned Government Advocate submitted that even if this Court were to set aside the order dated 21-9 1956, (removing the petitioner from Mahantship) on the score, either (a) that no opportunity, was given to him to show cause against it, or (b) that such an order could have been passed only by the Central Government, still a writ, under the circumstances, would become futile, because a fresh order, in similar terms could now be passed against the petitioner, by the Lieutenant-Governor, to whom powers of appointment (and necessarily of removal) also have since been delegated by the President. Reliance was placed on an earlier decision of this Court, reported in R.L. Gupta v. State of Himachal Pradesh, AIR 1954 H. P. 1 (M), where my learned predecessor held that :--
'A mandamus will not go when it appears that it would be futile in its result. Accordingly, it will not be granted if the party complained of has powers which would enable him to make the writ inoperative.'
13. In view of all that has been said above, this petition must fail.
14. There remains only the question of costs. Although the petition fails, the fact still remains that the petitioner was appointed by respondent No. 4 as Mahant and that appointment was confirmed by respondent No. 3 and the petitioner functioned as Mahant for about five years. The appointment was, obviously, made under a misconception as to the powers of the State Government in this regard--the true position, coming to light, as a result of civil litigation. Consequently, I think it would only be proper, if parties are left to bear their respective costs of this petition.