Jatindra Nath Singha vs Assam Board of Revenue and Others

B.L. Hansaria, J.—Swami Abhayananda Tirtha claimed by the Petitioner to be a great religious saint had come from pilgrimage to the Holy temple of Kamakhya at the turn of this century. The solemn atmosphere and religious sanctuary of the temple deeply impressed the saint. He ultimately decided to make Kamakhya as his permanent abode and established an ashram to use the same as a centre of meditation and religious studies and worship. It is a pity that the disciples of this Ashram are at loggerheads, and that too for claiming mutation for 10B of odd land covered by Khatian No. 20 of dag No. 513 (old), 210 (new). There cannot be two opinions that private interest has to yield to the interest of the institution.

There is no dispute that during 1923-28 Settlement names of (1) Abhayananda Swami, (2) Jogendra Nath Panda and (3) Lakshi Kanta Mahanta were recorded as under raiyats desting all of them as disciples of Kailashnanda Swami. During simple-settlement operation of 1944-46 names of Jogendra and (sic) continued, but in place of Abhayananda Swami, we find (sic) of Upendra Nath Brahamachari who, as per the Petitioner, (sic) succeded swami Abhayananda as per the last will and desire of Swamiji as the Guru of the Ashram. Be it mentioned that (sic) these three names had found place as raiyats on behalf of the Abhayanda Ashram.

The trouble maker is what happened during last re-settlement operation which found names of (1) Debendra and (2) Dhirendra, both sons of Jogendra and of (3) Golok son of Lakshi Kanta as raiyats along with Upendra Nath Brahmachari of course, all of them were said to have held the land (sic) behalf of the Abhayananda Ashram. This was some time in also (sic). In 1968 the present Petitioner who, according to him (sic) been elected as the sole in-charge and Guru of the Ashram following the death of Upendra Nath Brahmechari, filed a action before the learned Settlement Officer for cancellation of name of the aforesaid three persons Deben, Dhiren and Golok. The learned Officer allowed the same by an order passed on 29.1.69 ordering at the same time that names of Upendra, Jogendra and Lakshi could continue in the Khatian register as (sic) on behalf of the Abhayananda Ashram.

Feeling aggrieved at this order, Dhiren and heirs of (sic) and Golok preferred an appeal before the learned Assam Board of Revenue who by impugned order has set aside the order of Settlement Officer. The learned Board has held that (sic) Settlement Officer had no jurisdiction to entertain the petition filed on 28.5.68 either u/s 151 of the 151 of the Assam (sic) and Revenue Regulation (for short the Regulation) or under Rule 82H of the Settlement Rules. It also accepted the case Respondent 6 to 14 (hereinafter, the Respondents) that the (sic) Deben, Dhireadra and Golok has been recorded in tendency Khatiant by virtue of "right of inheritance" from Jogendra and Lakshi. The learned Board has has also set aside ex-parte order passed by the Sub-Deputy Collector (S.D.C.) 10.6.69 to K.P. case No. 421 of 1968-69 by which the name of the Petitioner was entered in the khatian by "right of inheritance" in place of others on behalf of the Abhayan.

It has, first submmitted by Shri Battacharjee for the Petitioner that the learned Board had no jurisdiction to upset the order dated 10.6.69 passed by the S.D.C. inasmuch as the same was not the subject matter of appeal before the Board, who had been approached only against the order of Settlement Officer dated 24.1.69, Sri Sarma for the Respondents urge that the learned Board had ample powers u/s 151 of the Regulation in undoing "an incompetent and wrong order". We have been referred to an order dated 18.3.70 passed by the learned Board calling for the original record of this case. It is contended on behalf of the Respondents that as this, record was before the Board and as it was found that the order, by the S.D.C. had been passed by suppressing the notice, the learned Board was perfectly justified and was within its jurisdiction in setting aside the order. As to the width and ambit of the power u/s 151 we have been referred to a Full Bench decision of this Court in Satyaranjan v. Assam Board of Reveue, AIR 1977 Gau 83. Our pointed attention invited to what was stated by Sadapanda Swamy, J. in para 11 the same being:

The powers of the Board u/s 151 have been conferred in the widest terms. These powers can be exercised suo moto or on application filed before it. There is no period of limitation prescribed under the regulation for such an application.

Similar views were expressed by Islam, J. (as he then was) in para 33. Shri Bhattacharjee has also relied on this decision to contend that the learned Board could not have exercised power u/s 151 in view of the fact that an appeal against the order of S.D.C. was pending before the learned Additional Deputy Commissioner (A.D.C.). In para 10 of the aforesaid judgment, it has been field that power u/s 151 can be exercised even in cases where there is a right of appeal and has not been availed of. This would imply, submits Shri Bhattacharjee that once the right of appeal has been availed of, provisional power u/s 151 cannot be excised.

We would think that the submission of Shri Bhattacharjee merits acceptance because no provision of the Regulation can be to read as to denude an authority clothed with some power by the same Regulation, more so when a party has already approached that authority. We do not think if invocation of revisional power has been visualised even during pendency of an appeal. To be fair to the Board let it be said that it was perhaps not brought to its notice that an appeal against the S.D.C.''s order was pending before the learned A.D.C. We feel that if this fact would have been brought to the notice of the learned Members of the Board, they would have parhaps allowed the Appellants before it, who were also the Appellants before the learned A.D.C. to see to the fate of their appeal there. To allow invocation of provisional power in a pending appeal would being clash of clash of power of authorities which has to be avoided. A party who has already chosen a forum to seek redress of his grievance cannot be allowed to sidetrack it. Of course, if the Board would have called for the records from the learned A.D.C. also, the matter would have been differrent. But that was not done. The only record summoned were of case No. K.P. 421/68-69.

In view of all these, we would hold chat the learned Hoard did not act within its jurisdiction in setting aside the order of the S.D.C. passed on 10.6.69. At one stage, we had brought to allow the parties to still pursue the appeal filed before the learned A.D.C. but we are refraining from doing so for reasons which would become clear as we proceed.

Coming to the order of the Settlement Officer passed on 21.4.69, it may first be stated that the entire controversy has changed its colour and context in view of the acquisition of the land in question some lime in 1970 under the provisions of the Assam State Acquisition of Lands belonging to Religious or Charitable Institution of Public Nature Act, 1959 (Assam Act No. IX of 1961), because by (sic) of Section 4(1) of this Act the land has vested absolutely in the State free from all encumbrances. From Annexure IX of the petition, we find that Annual Patta as required by Section 15 of this Act has already been issued. The name of pattadar has been shown thus: "For and on behalf of the Abhayananda Ashram, Shri Jatindra Nath Singha, son of Molek". According to Shri Sarma the name of Jatindra Nath has found place in this document because of the order of the S.D.C. passed on in 10.6.69, and if that order goes, consequential amendment would automatically be made in Annexure IX. It may be stated that u/s 15 of the aforesaid Act a raiyat in actual occupation is alone entitled to get the settlement as stated by a Division Bench of this Court in Rajendra Nath v. Jogeswar 1977 ALR 136.

We have been addressed at length by the counsel of the parties regarding the competing claim to the land in question. The history of record-of-rights already adverted to leaves no doubts that it was the Abhayananda Ashram which had been treated as the raiyat under the Temple. The 1923-28 settlement had described the predecessors-in-interest of the Respondents as disciples of Kailashnanda Swami. So they were there not so much as Jogendra or Lakshi in their personal capacities, but as disciples of Kailashnanda. From materials before us, we do not know much who Swami Kailashnanda was, be that as it may, the years to come clearly indicated that the land was meant for the Abhayananda Ashram. This fact finds clear mention both in the temple settlement of 1944-46 as well as what happened in the last resettlement operation.

At this stage we may deal with the legal status of a body like an ashram. It may first be stated that an ashram belongs to those categories of institutions which are known or called Math, as distinguished from Debutter. Though a Math and a Debutter both have their existence to benefactions or grants of property by pious benefiactors, in one case (Debutter) the grantee is an idial for whose ministration or service the Dubutter is created, in the other (Math) the object of the benefaction is the creation of an institution for the benefit of a fraternity of religious men at the head of which stands the superior or Mahant. (see Dr. Bijon Kumar Mukherjee''s Tagore law Lectures on ''Hindu Law of Religious and Charitable Endowment'' 4th Edition p. 329). The Abhayananda Ashram has been described by us as a Math because it signifies in ordinary language an abode or residence of ascetics. In legal parlance it connotes a monastic institution presided over by a superior and established for the use and benefit of ascetics belonging to a particular order who generally are disciples or co-disciples of the superior (Supra, P. 321, which has been referred with approval in Krishna Singh v. Mathura Ahir AIR 1980 SC 707). The history of the Ashram as (sic) by the Petitioner its in with the above conception. The assertion of the Respondent that there is a ''Dharamsala'' on the land does not alter the character as a math (sic) abede or residence of ascetics, as already noted.

Let it next stated that in case of a Math, the endowed property vests in the Math as a juristic person and not in the mahant or superior either as a life tenant or otherwise (supra) P. 310 and Lakshmi Narayan v. State AIR 1978 Pat. 303). The property belonging to a main (sic) in fact however attached to the office of the mahant. Thus:

a Math in an institutional sanctum presided over by a superior who combines in himself the dual office of being the religious of (sic) head or the particular cult or religious fraternity, and of the manager of the secular properties of the constitution of the Math.

as stated in para 21 of the Krishna Singh (supra). So a math or an Ashram can be clothed with bundle of rights constituting ownership of a property. If that can be done, there is no bar in law in vesting in it lesser than that of owner, say of a lessee or sub-lessee, a raiyat or under raiyat. But then it has to be managed by the mahant or guru.

The real objection of Shri Sarma lies in acceptance of the Petitioner as the guru or in charge of the Ashram, as the Petitioner is said to be a railway employee in Grade IV. According to Shri Bhattacharjee the material standing or status of the Petitioner cannot be a bar in his attaining spiritual heights. He refers us to Annexure III by which this Petitioner was recognised in a meeting held on 7.1.62 as "the man in-charge of the Ashram" as he was the "main and favourite disciple". Shri Sharma would not take any cognizance of this. We do not propose to express any opinion on this aspect as it would be clear from what is being stated later, we are leaving this matter to be decided by an appropriate civil court if and when approached by the parties.

To clear the ground, we have to revert back to the order of the learned Board. The Respondents had claimed their (sic) before the Board as she baits of the Kamakhya Temple, (sic) by (sic) mutation in their favour by "right of inheritance" the learned Board virtually accepted the same. In doing so, the Board has undoubtedly committed a manifest error. The claim as shebait of the temple was advanced for the first time before the Board and the same has, absolutely no foundation. There is not a scrap of paper on record so sustain this plea, even prima facie. The history of record of right mentioned earlier makes it crystal clear that it was the Ashram, and Ashram alone, which was the raiyat or under raiyat of the Temple. So allowing of mutation in favour of the Respondents by admitting their independent right is a perversity which can be, and has to be, undone by this Court even in its writ power. Public interest in an institution cannot be allowed to be sacrificed at the altar of private interest. Futher, the controversy or dispute about claiming mutation has become more or less academic or futile, as the land has since vested in the State u/s 4(1) of the 1961 Act, and as the only right of getting settlement as raiyat in occupation has been rightly conferred on the Ashram vide Annexure IX.

So the order of the Board has do set aside which we hereby do. But this does not conclude the controversy, the Respondents have objection to the inclusion of name of the Petitioner in Annexure IX to act for and on behalf of the Ashram. This has happened according to Shri Sarma due to the exparte order of the S.D.C. passed on 10.6.69. Shri Bhattacharjee contends that this was founded on Annexure III. But law of succession to mahantship is not that simple. we may only indicate broadly what it is. Succession to mahantship is different from devolution of shebaltship inasmuch as the latter being property is inherited like any other species of heritable property, vide Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, whereas per well settled law is regulated by custom or usage of the particular institution, except where the founder himself, who created the endowment had, laid down a rule of succession as stated in para 30 of the Krishna Singh AIR 1980 SC 707. Three important point are to be borne in mind while determining the question of succession to the office of a mahant as stated at p. 347 of Dr. Mukherjee''s above work. These are (1) if the grantor has laid down any particular rule, that has to be given effect to be given effect to; (2) in the absence of the same, the usage of the particular institution has to be followed, and (3) the party who says claim to the office of mahant on the strength of any usage must establish it affirmatively. This apart, as the presiding element in a math or s(sic) is an ascetic or religious teacher who together with his disciples forms a spiritual family a nomination may be void (sic) pointed out in Ram Parkash v. Anand AIR 1916 PC 256 (sic) the person chosen suffers from bodily infirmity or disease, or (sic) a life which is immoral or is inconsistent with the religious rows of the brotherhood. Further, as per Dr. B.K. Mukherjee, conditions like celibacy are also necessary. All these aspects are to be borne in mind while deciding the question of succession to a guru of an ashram. There is nothing before us to show if these were considered while virtually recognising the Petitioner as the guru of the Ashram. The points involved are however complicated and can be takes care of only by a Civil Courts. It is because of this that we have not ultimately favoured relegation of the parties to the learned A.D.C. but instead feet that they should approach competent civil court if deemed fit by them.

The result is that the petition is allowed and the impunged order is set aside. The patta of the land in question will remain, under the existing circumstances, in the name of the Ashram and the Petitioner shall have the only right qua (sic) property to pay the necessary rent/revenue to the Government till such time a civil court passes any order regarding succession to the office of the guru of the Ashram on being approached by the parties, whereafter that person who is declared as guru will manage the property on behalf of the Ashram. The name of such a person alone shall be recorded in the patta to act for and on behalf on the Ashram.