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IN THE HIGH COURT OF ALLAHABAD
D. K. Seth, J.
TRUST, SWAMI SUKDEWA NAND ASHRAM TRUST, MURDHAVA, RENUKOOT, MIRZAPUR AND - Appellant
Versus
DISTRICT JUDGE, MIRZAPUR AND OTHERS - Respondents
C. M. W. P. 11659 Of 1987
Decided On : 04/28/1998
U. P. HINDU PUBLIC RELIGIOUS INSTITUTIONS (PREVENTION OF DISSIPATION OF PROPERTIES) ACT, 1962 - SECTION 4(2) - RES JUDICATA - CONSTRUCTIVE RES JUDICATA - DELEGATION OF POWER - APPOINTMENT OF INVESTIGATING OFFICER - VALIDITY - CHALLENGE TO APPOINTMENT - MAINTAINABILITY OF APPEAL - JURISDICTION OF COMMISSIONER - HINDU RELIGION - PROFESSION OF SIKH RELIGION - VALIDITY OF ORDERS - WRIT PETITION - DISMISSAL - APPEAL - ALLOWANCE - QUASHING OF ORDERS - WRIT OF CERTIORARI - ISSUANCE.
Fact of the Case:
The Commissioner under Section 4(2) of the U. P. Hindu Public Religious Institutions (Prevention of Dissipation of Properties) Act, 1962, appointed the Sub-Divisional Officer, Mirzapur as Investigating Officer in respect of the trust-Swami Sukdewa nand Ashram Trust. The respondent challenged the appointment and the orders passed by the Commissioner. The District Judge allowed the appeal and held that the Investigating Officer had no jurisdiction to proceed with the enquiry. The petitioners challenged the order of the District Judge.
Finding of the Court:
The court held that the respondent had misled the appellate court by not disclosing the fact that the issues involved in the appeal had already been decided by a Division Bench of the High Court in a writ petition. The court also held that the issue of delegation of power to the Commissioner was ancillary to the orders challenged in the appeal and was, therefore, also barred by the principle of constructive res judicata. The court further held that the Commissioner, being a Sikh, was not a Hindu within the meaning of the Act and, therefore, could not be appointed as Commissioner under the Act.
Issues: 1. Whether the respondent had misled the appellate court by not disclosing the fact that the issues involved in the appeal had already been decided by a Division Bench of the High Court in a writ petition? 2. Whether the issue of delegation of power to the Commissioner was ancillary to the orders challenged in the appeal and was, therefore, also barred by the principle of constructive res judicata? 3. Whether the Commissioner, being a Sikh, was not a Hindu within the meaning of the Act and, therefore, could not be appointed as Commissioner under the Act?
Ratio Decidendi: 1. The court held that the respondent had misled the appellate court by not disclosing the fact that the issues involved in the appeal had already been decided by a Division Bench of the High Court in a writ petition. The court relied on the principle of res judicata and held that the decision of the Division Bench was binding on the parties and could not be challenged again. 2. The court held that the issue of delegation of power to the Commissioner was ancillary to the orders challenged in the appeal and was, therefore, also barred by the principle of constructive res judicata. The court held that the respondent ought to have raised the issue of delegation of power in the writ petition, but had failed to do so. 3. The court held that the Commissioner, being a Sikh, was not a Hindu within the meaning of the Act and, therefore, could not be appointed as Commissioner under the Act. The court relied on the definition of "Hindu" in the Act and held that the Commissioner did not satisfy the definition.
Final Decision: The court quashed the order of the District Judge and issued a writ of certiorari to set aside the orders passed by the Commissioner.
( 1 ) BY an order dated 27. 12. 1986, the Commissioner under Section 4 (2) of the U. P. Hindu public Religious Institutions (Prevention of Dissipation of Properties) Act, 1962, appointed the sub-Divisional Officer, Mirzapur as Investigating Officer in respect of the trust-Swami Sukdewa nand Ashram Trust. Against the said appointment, the respondent No. 5 had made an application for not holding enquiry which was dismissed by an order dated 14. 3. 1987. Against the said order, the respondent No. 5 herein had filed Misc. Appeal No. 43 of 1987 before the District judge, Mirzapur, who by an order dated 4. 5. 1987 allowed the appeal and held that the investigating Officer Sub-Divisional Officer, Dudhhi had no Jurisdiction to proceed with the enquiry into the affairs of the said trust. It is this order which has since been challenged by the petitioners.
( 2 ) MR. S. K. Singh, learned counsel for the petitioner, relies on the decision in the case of krishna. Nand Slngh v. Commissioner, - Varanasi Division, Varanasi and others, 1987 AWC 1207, and contends that the respondent No. 5 had challenged the said orders dated 27. 12. 1986 and order dated 14. 3. 1987 in Writ Petition No. 2559 of 1987 which has since been decided on 9. 4. 1987 and the same has been reported in the Journal as cited above. In addition, in the said wnt petition the notification dated 6. 12. 1983, by which one Sri D. S. Bagga was appointed commissioner, Varanasi Division, Varanasi as Commissioner under Section 4 of the said Act, was also challenged.
( 3 ) IN the appeal, a point was taken that said Sri Bagga admittedly professing Sikh religion was not a Hindu within the meaning of Section 4 (2) and that he was not empowered to appoint the sub-Divisional Officer as Investigating Officer in the absence of any notification empowering the Commissioner to delegate his power for appointing Investigating Officer.
( 4 ) WHILE deciding the said appeal on 4. 5. 1987, the appellate authority had come to a finding that the Commissioner, admittedly a Sikh, could not be appointed as Commissioner under the said act because he did not profess Hindu religion. He also held that in the absence of anything to indicate that the Commissioner was empowered to delegate his power by appointing an investigating Officer under the said Act. He also had dealt with the question as to the maintainability of the appeal which was filed under Section 12 of the said Act since originally the appeal lay before the Commissioner, but on facts he had distinguished the same and held the appeal to be maintainable. For our present purpose, it is not necessary to go into the said question and i, therefore, refrain from making any observation with regard to the said question of maintainability of the appeal.
( 5 ) NO where from the order passed in the appeal, it appears that the appellant had disclosed about the decision dated 9. 4. 1987 passed in the case of Krishna IV and Singh (supra) before the appellate court though decision in the said case was given on 9. 4. 1987 and the appeal court decided the appeal on 4. 5. 1987. Even in the counter-affidavit filed before this Court by the said krishna Nand Singh, who is respondent No. 5, affirmed on 18th August. 1988, he has not disclosed anything about the said decision dated 9. 4. 1987. It is apparent that the question involved in the appeal, namely, the validity of the order dated 27. 12. 1986 and 14. 3. 1987 were very much challenged in the writ petition which has been decided on merits by the said order dated 9. 4. 1987, before the appeal was taken up for hearing. The said order was obtained at the initiation of respondent No. 5, herein, who had persued two parallel proceedings, one before this court in Lucknow Bench and the other before the appellate court. Once an issue has been decided. It was incumbent upon the appellant-respondent No. 5 herein who was appellant in the said appeal to disclose the fact that the issue has already been decided by
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