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Judgment
L. Narayana Swamy, J.—The petitioner has challenged the order passed by the Special Deputy Commissioner, Bangalore in LND(DA)CR. 159/2006-07 as per Annexure-L1 seeking to quash the same and further direction to the respondents to consider the application filed by the petitioner as per Annexure-C dated 12/15-5-2000.
The petitioner submits that he is the Mathadhipathi and Peethadhikari of Omkar Ashrama situated at Srinivasapura, Kengeri Hobli. Bangalore South Taluk. He submits that he was incarnated as a Mathadhipathi of the Ashrama on 9/8/2007. Previous to his incarnation the earlier Swamiji of the Math made an application in the year 2008-09 to the Government of Karnataka for grant of 22 acres of land in Sy. No. 14 of Ganakal village, Kengeri Hobli, Bangalore South Taluk for religious and charitable purpose. Considering his application, the Deputy Commissioner has granted 8 acres of land for a period of 30 years as per the G O No. KA42 LGB 89 dated 12/1/2000. Pursuant to the said order, the Special Deputy Commissioner by proceedings dated 5/8/2000 granted 8 acres of land in Sy. No. 40 to Sri Sri Swamiji of Omkar Ashrama. Being not satisfied with the grant of 8 acres of land, he made one more representation dated 15/5/2000 requesting the Revenue Minister for grant of 22 acres more.
In the representation given by the previous Swamiji wherein he has stated that he wanted to install Om Emblem which is a unique structure which would radiate and vibrate the city of Bangalore. The aim of the structure was to propagate, unity, integrity and universal brotherhood. The construction of Jyothirlinga Complex with 12 temples in the same shape and structure. The structure also consists of meditation hall for uninterrupted dhyana and visual presentation of the after effects of good and evil deeds done by the humanity so as to encourage good deeds and discourage evil deeds, maintenance of a Sanskrit Patashala and a Goshala etc., It is stated that unless a total extent of land is granted and with what has been granted would disturb the tourist attraction. Omkar Hill is one of the tourist interest in Bangalore.
After considering the said representation, the Deputy Commissioner has written letter to the Principal Secretary, Revenue Department about the further demand of 12 acres by the Ashrama as per Annexure-D. The Ashrama also made representation to former Chief Minister as per Annexure-E dated 8/9/2004 who by the letter dated 28/9/2004 referred the matter to the Special Deputy Commissioner to take appropriate action. In the meanwhile the State Government wanted to auction the remaining property in Sy. No. 14. At the instance of the petitioner the same was stayed by office of the Chief Minister. He submits that he also made representation to the former Irrigation Minister who in turn also recommended for grant of the land.
The petitioner has submitted that the previous Swamiji took up construction of temple that is, Jyothirlinga Temple in the month of October, 2004 with a fond hope that the Government would grant at least full extent of land and expecting the same, he has invested crores of rupees for construction of Jyothirlinga Temple. On 16/6/2007 the Deputy Secretary, Department of Revenue Department had written letter to the Special Deputy Commissioner to send a proposal to grant further extent of land to the petitioner. The petitioner submits in view of the above said proceedings, it is manifest that the Government had taken note of granting further extent of land and the total construction of Jyothirlinga Temple which is unique in the mind of the whole country at the cost of more than Rs. 8 crores and it is in the final stage. When all these things were going on, unfortunately the earlier Swamiji died, in the result the present petitioner is incarnated.
The 4th respondent was granted 5 acres and 9 acres of land together measuring 14 acres in Sy. No. 14 of Ganakal village vide Annexure-L1 and L2 dated 28/3/2007 and 2/7/2007 respectively which are sought to be quashed in the present writ petition.
I have heard the learned Counsel for the petitioner, learned HCGP for respondents 1 to 3 and learned Counsel for the respondent No. 4.
It is submitted on behalf of the petitioner that when two applications are pending for grant, it is the duty on the part of the Government to consider both the applications together. Though the application made by the petitioner was earlier one, the Government has granted the land in favour of the 4th respondent which is impermissible, unjust and improper it is submitted that the petitioner is a religious institution involved in religious and charitable activities whereas the respondent No. 4 is only an educational institution in fine arts and petitioner would outweigh the case of the respondent No. 4. Therefore, it is the contention of the petitioner that the grant made in favour of the 4th respondent is liable to be quashed.
The respondent No. 4 has filed statement of objections. It is submitted on behalf of fee 4th respondent that the petitioner Ashrama has no locus standi to maintain the writ petition since Omkar Ashrama is not a registered Trust under the Indian Trust Act nor incorporated under any provisions of law. Hence Ashrama is not a juridical person. It is submitted that the petitioner is not a religious and charitable institution nor it is registered as such and approved by the Endowment Commission and not entitled for grant of land under Rule 21 of the Karnataka Land Grant Rules, 1969.
It is submitted by the learned Counsel for the 4th respondent that the petition is liable to be dismissed on the ground that the petitioner has mislead this Court about its identity as religious and charitable institution though it is not. The petitioner has also not disclosed its vast extent of land at Bangalore and elsewhere while seeking for grant of land. It is alleged by the 4th respondent that the petitioner Sri Madhusudanandapuri allegedly created will in his name vesting absolute power in him to deal and dispose of ail the properties of Omkar Ashrama. The petitioner is also facing charge for assassination of previous Swamiji namely Shivapuri Swamiji.
It is submitted by the 4th respondent that the Government is the Chief Controlling Authority in revenue matters u/s 3 of the Karnataka Land Revenue Act. Having realized the large public interest has granted lease of land to the 4th respondent. The 4th respondent is a College of Fine Arts which is a public service oriented institution. The Government has also granted Rs. 2 crores to the 4th respondent institution and granted the land. It is submitted that the fencing work is going on. It is submitted that the 4th respondent serves larger interest of the public. Accordingly, the land has been granted. There is no illegality in grant of the land in favour of the 4th respondent and therefore prays for dismissal of the writ petition. The learned Counsel for the 4th respondent has relied upon two decisions reported in AIR 1990 Kar 176 paragraph - 14 and submitted that unincorporated associations are not legal persons and as such the writ petitions are not maintainable and an association could be formed to protect the interest of consumers and another judgment 1991(1) KCCR 801 (Mallegowda v. Special Deputy Commissioner and Ors.) to the effect that successive grant cannot be made to an individual arid prays for dismissal of the writ petition.
The petitioner has not stated in the petition as to whether petitioner is a registered Trust under the Indian Trust Act or the society registered under the Societies Act. It has obtained the land to an extent of 8 acres from the Government by making an application u/s 21 of the Land Grant Rules. Rule 21 provides that "notwithstanding anything contained in the said Rules, the Deputy Commissioner with the prior approval of the State Government can grant any extent of land to any religious and charitable institution." Therefore, it is all the necessary for the Deputy Commissioner to satisfy himself that the applicant is a religious and charitable institution. In the instant case, the petitioner is not shown to be registered trust or a society or an institution under the provisions of Religious and Charitable Endowment Act. There is no reference made in the grant order as to whether the petitioner is a registered trust or Mahant of the Mutt governed by any of the provisions of law or bye-laws or nature of the activities of the petitioner etc.,
The petitioner has stated in the petition that it has already spent crores of rupees on it and in total requires Rs. 8 crores. The petitioner has not stated as to what is the source for this huge sum of money the petitioner is able to accumulate and spend on the construction activity. As to how it accounts these funds, what type of people it has associated with and what activities it is involved in are not made clear. Object of the grant and the construction of various structures as stated earlier are not religious and charitable in nature. Article 25 & 26 of the Constitution provides religious freedom to all the persons. But in number of judgments of this Court and Supreme Court, propagating unity, integrity, meditation and universal brotherhood is not a matter of religion. Sanskrit Pathashala and maintaining a Goshala may be a part of an individual if any person involved in it though it is not a part of religious activity. If this is construed as a religious activity, most of the educational institutions where Sanskrit was the language and meditation was a part of education would have become religious centers. The petitioner has stated in the petition that if the land is not granted, it would disturb the tourist attraction which shows that the construction is going on not for the religious denomination but it is only to attract tourists. In para 6 at the end the petitioner has stated that Omkar Hill is one of the place of tourist interest in Bangalore. Om Emblem is a unique structure which would radiate and vibrate City of Bangalore which demonstrate that the grant of land sought and put up a huge building is not for religious activities but it is for purely to attract tourists to make money which could be made out from the petition itself. An individual wanted ail these things by obtaining the government land for his personal use. As it is stated by the petitioner himself in para 2 that there were criminal cases filed against Swamiji, they were decided in favour of Swamiji itself is sufficient to show that there is personal interest in it.
It is the contention of the 4th respondent that Ashrama has vast extent of land in Bangalore and elsewhere, petitioner has misled this Court about its identity as religious and charitable institution and is guilty of suppression of material facts. It is further stated that Swamiji is facing criminal charges for assassination of previous Swamiji. These statements in the statement of objections are not repudiated by the petitioner. Therefore, it is clear that the petitioner has suppressed the material facts in not disclosing vast extent of land and not disclosing whether the petitioner is a registered trust or religious and charitable endowment.
The petition is also silent as to after the completion of the construction whatever income the Ashrama derives how the said funds would be utilized and in whose account that money goes. The Supreme Court in The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., has held 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. It has been held that Mathadhpati is not a corporate body, he is the head of a spiritual fraternity and by virtue of his office has to perform the duties of a religious teacher. It is his duty to practise and propagate the religious tenets, of which he is an adherent and if any provision of law prevents him from propagating his doctrines, that would certainly affect the religious freedom which is guaranteed to every person under Article 25. Mathadhipathi though he is an individual to Mutt is a collection of individuals where the individuals call together under the same name. The religious sect or body having a common faith and organization and designated by a distinctive name. Therefore, it is clear that Mathadhipathi is an individual being the head of the institution and he is the ultimate supervisor of the activities and also the property. But denomination as it is defined as a collection of individuals. The duties and responsibilities are important factors in the Trusteeship. In the instant case, the petitioner has not stated as to whether what type of class of persons are associated with it what is his roles and duties, whether he is answerable or accountable all are not made clear either based on bye-laws or trust deed or provisions of Religious and Charitable Endowment Act.
The Supreme Court in (1996) 8 SCC 705 has held that the Mahant as head of the spiritual fraternity and by virtue of his office has to perform the duties of religious teacher, it is the duty of the Mahant to practice and propagate the religious tenets of which he is an adherent and if any provision of law prevents from propagating his doctrine that would certainly affects the religious freedom under Article 25 and a Mutt or a specific endowment per se cannot practice or propagate religion.
In the instant case, petitioner is not shown to be registered trust and existed on the basis of what class of persons, it is not preaching, practicing or propagating religion it is being done by an individual petitioner.
The impugned allotment made in favour of the 4th respondent has been challenged by the petitioner without there being any locus standi. The petitioner is also a grantee. The 4th respondent was also granted land since it is an educational institution. If the petitioner is entitled for grant under particular provision of law, 4th respondent is also entitled for grant of land. After assessing the requirement the Government has granted 8 acres of land to the petitioner. Likewise the Government also assessed the requirement and accordingly granted land to the 4th respondent. When such being the case, petitioner has no privilege to challenge the grant made in favour of the 4th respondent. The petitioner has no locus standi to challenge the grant made in favour of the 4th respondent.
The petitioner has stated that it is entitled for grant of land under Rule 21 of the Grant Rules. While granting the land the Deputy Commissioner ought to have ascertained as to what is the status of the petitioner and whether it is a religious and charitable institution. This subjective satisfaction by the Deputy Commissioner is not clear in the grant order made in favour of the petitioner. The petitioner is not an institution for the purpose of Rule 21 of Land Grant Rules. The Special Deputy Commissioner/Government also cannot exercise its power since the petitioner is not a religious and charitable institution. What the petitioner has stated in the petition about its activities such as construction of building, Sanskrit Pathashala, Om Symbol which radiates and vibrate the city of Bangalore, meditation hall I do not think would constitute religious and charitable activities. The property of unincorporated association is the property of its members but in case the property is granted to an incorporated association, then it will be governed by set of Rules.
In the circumstances, I am of the view that this writ petition is liable to be rejected. In addition, when the grant order in favour of the petitioner granting 8 acres of land is not clear as to its entitlement and the subjective satisfaction by the Deputy Commissioner, this Court exercising power under Article 226 of the Constitution cancels the grant in favour of the petitioner though the same is not challenged. In this regard, it is worthwhile to mention the ratio laid down by the Hon''ble Supreme Court in Babu Verghese and Others Vs. Bar Council of Kerala and Others, , in which paragraphs 30 & 31 read as follows:
We may point it out that the process for extension of the term of Kerala Bar Council was initiated under Rule 6. If Rule 16 is to be applied, it must be shown that all its requirements were fulfilled.
It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any Statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor (1875) 1 Ch D 426 which was followed by Lord Roche in AIR 1936 253 (Privy Council) who stated as under:
Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.
Therefore, it is the duty of the Deputy Commissioner before granting of any land to anybody to see that the requirements of Rule 21 of the Land Giant Rules are strictly fulfilled. In the instant case, as already stated, requirements of Rule 21 of the Land Grant Rules are not fulfilled by the petitioner.
In the result, writ petition is rejected. Grant in favour of the petitioner in No. LND(S)CR:298:91-92 dated 5/2/2000 produced at Annexure-B is hereby quashed. The respondent No 2 Special Deputy Commissioner, Bangalore Urban, Bangalore is directed to take possession of the land measuring 8 acres in Sy. No. 14 of Ganakallu village, Kengeri Hobli, Bangalore South Taluk forthwith.