ORDER
A.S. Bopanna, J.
1. The petitioner is before this Court questioning the order dated 18-12-2004 passed by the 1st Additional District Judge, Dakshina Kannada, Mangalore, in Misc. case Nos. 88/2000, 21/2001 and 43/2004. By the said order, the learned District Judge has dismissed the said Misc. Petitions as not maintainable.
At the outset, what requires to be noticed is that the petitioner herein no doubt was a respondent in the said proceedings. Though the order passed is by holding that the applications filed therein were not maintainable, the petitioner is aggrieved by the finding of the learned District Judge that the Religious Endowment Act, 1863 (for short the ‘Act’) has been repealed and therefore an application filed under Section 10 of the said Act is not maintainable. The petitioner is therefore before this Court only on the said question of law seeking correction of the finding rendered by the learned District Judge. Hence, though the applications therein have been dismissed, noticing that the said question of law requires to be considered by this Court, the case put forth by the petitioner in this petition is considered in the petition filed by the respondent.
2. The brief facts relating to the present petition is that the petitioners had filed applications seeking for their appointment as members to the Mangalore Region Jaina Matha Sthapana Committee (for short the ‘Committee’), since the vacancy had arisen for appointment to the said committee. Insofar as the claim of the petitioners indicating their eligibility and merit to be considered for such appointment, the same does not arise for consideration in this petition. The Court below, on the pleadings which were available before it had raised two questions for its consideration:
i) Whether the petitions filed under Section 10 of the Religious Endowment Act, 1863 are maintainable?
ii) If so who amongst the petitioners and objector is the proper person to fill up the existing vacancy created by the death of M. Jagathpalayya?
3. At this juncture, only first of the above questions arise for consideration since the Court below has dismissed the petition as not maintainable under Section 10 of the said Act. While doing so, the Court below has placed reliance on the Division Bench ruling of the Madras High Court reported in AIR 1952 Madras 655 and the relevant portion of the judgment has been extracted by the Court below. On noticing the said decision, the Court below has come to the conclusion that the said Act has been repealed by Section 6 of the Madras Act II (2) of 1927 and therefore, it has held that the application filed under the repealed Act is not maintainable. The petitioner is questioning the said finding rendered by the Court below. The respondents though served have ramained un-represented.
4. Sri K. Chandranath Ariga, Learned Counsel for the petitioner on taking me through the impugned order dated 18-12-2004 would refer in detail to the extracted portion of the judgment rendered by the Division Bench of the Madras High Court reported in AIR 1952 Madras 655. The Learned Counsel would lay stress on the word “Hindu” which has been used by the Hon’ble Division Bench while rendering its decision. On pointing to this aspect of the matter, the Learned Counsel would also take me to the provisions of the Act where under Section 10 provides that an application is to be filed when a vacancy occurs among the members of the committee. Reference is also made to Annexure-A which is an order dated 19-1-1976 passed in Misc. Case No. 38/72, where the District Judge of South Kanara, Mangalore, had exercised the power under Section 10 of the said Act. The Learned Counsel would therefore contend that the insofar as the procedure contemplated for filling up the vacancy in respect of the committee, the District Judge would have the jurisdiction in terms of provisions of the said Act. Accordingly, in the present circumstances also, the application had been made.
It is further contended that the Court below has come to the conclusion that the application is not maintainable on a wrong understanding of the ruling rendered by the Division Bench of Madras High Court. In order to clarify this aspect of the matter, the Learned Counsel would also refer to the Madras Hindu Religious Endowments Act (II) of 1927. The explanation to Section 2 of the said Act would indicate that for the purpose of the said Act, Hindu Public Religious Endowments do not include Jain religious endowments. In addition, Section 6 no doubt repeals Madras Hindu Religious Endowments Act, 1863. However, Section 8 reads as follows:
8. The Religious Endowments Act, 1863, and the Madras Endowdments and Escheats Regulation, 1817, so far as they apply to Hindu religious endowments to which this Act applies, are hereby repealed.
The reading of Section 8 would clearly indicate that the repeal of religious endowments Act would apply only insofar as Hindu Religious Endowments to which the Act applies. Therefore, insofar as the Jain Religious Endowments, the repeal by Act (II) of 1927 is not applicable and the power under Section 10 of the said Act would still be available to the Additional District Judge. The learned Counsel would state that the Court below without noticing this aspect of the matter has rejected the petitions filed by the petitioners. The learned Counsel would also clarify that though at present, the rejection of the petitions cannot effect the petitioner herein, the vacancy in the committee has remained un-filled and as such, the very functioning of the Jain Religious Institution would suffer. Therefore, this aspect of the matter requires to be clarified so that the eligible persons can make appropriate applications before the Court below in terms of Section 10 of the Act.
5. Having heard the learned Counsel for the petitioner, I have perused the common order passed by the Court below. Insofar as the merits of the application which has been filed before the Court below, the same does not arise for consideration as already noticed above since if this Court comes to the conclusion that the Additional District Judge has the jurisdiction to consider the application filed under Section 10 of the Act, the application would have to be considered on its merits by the District Court. Therefore, I do not deem it proper to state anything with regard to the merits of the claim made for appointment against the vacancy arising in the committee.
6. Insofar as the question as to whether the petition under Section 10 of the Act is maintainable, the perusal of the extracted portion of the judgment rendered by the Division Bench of the Madras High Court reported in AIR 1952 Madras 655 no doubt would refer to the repeal of the Hindu Religious Endowments Act I (1) of 1925. As rightly pointed out by the learned Counsel for the petitioner, the Hon’ble Division Bench of the Madras High Court was considering the repeal relating to the Hindu Religious Endowments and the question as in the present case did not arise for consideration therein. In that view of the matter, the Hon’ble Division Bench had come to the conclusion that the Madras Act (II) of 1927 had repealed the applicability of the Act insofar as the Hindu Religious Endowments are concerned with reference to Section 6 of the said Act. If this observation of the Division Bench of the Madras High Court is kept in view and if the provisions of the said two acts are considered, more particularly, keeping in view Section 8 of Madras Act II(2) 1927, Section 10 of the Act would provide for filing application for filing up the vacancy which would occur among the members of the committee before District Judge as contemplated under the provisions of the Act, since the same would remain in force insofar as the Jain Religious Endowments are concerned. Therefore, similar procedure would have to be followed. It is also demonstrated by the fact that Misc. Case No. 38/72 was disposed of on 19-1-1976 (Annexure-A to the petition) wherein such power was exercised when the vacancies had arisen in the committee and the same been filled up.
7. At this juncture, it is also required to notice that there is no other similar provision available in any one of the other enactments for filling up the vacancy of the committee and the said provision in Section 10 is the only provision on which the applicants would have to fallback upon to seek for filling of the vacancy that arises in the committee. This aspect of the matter also assumes importance since while considering the question of maintainability of the applications, if there is no other provision and if the repeal is also clear that this has been saved, the authority which exercised such power earlier will have to continue to exercise such power.
7.1 To sum up, a perusal of Section 6 of the Act II of 1927 would indicate the repeal of the Madras Hindu Religious Endowments Act 1863. In this regard, the reference made by the Hon’ble Division Bench is with regard to the Hindu Religious Endowments alone. In this background, if Section 8 of the Act is perused as extracted during the course of this order, it is clear that the Religious Endowments Act 1863 has been repealed only insofar so it applies to Hindu Religious Endowments and therefore, the repeal is specific to that extent. Therefore, the applicability of the Act to the Jain Religious Endowments has not been repealed. As already noticed since there is no other provision which is pari materia, the provision in Section 10 of the Act is the only provision available. Hence, in the case of appointment or filing up of vacancies to the committee, the District Judge would have the jurisdiction, since the filling up of vacancy is sought to the Mangalore Region Jaina Matha Sthapana Committee.
8. That being so, the 1 Addl. District Judge, Dakshina Kannada was not justified in dismissing the petitions in Misc. Case Nos. 88/00, 2.1/02,43/04 as not maintainable by its order dated: 18-12-2004. Hence, to the said extent, the order is set aside. In a normal circumstance, it would have been appropriate to remand the matter, but in the instant case, the applicants have neither questioned the order nor have they appeared before this Court. Since the legal position is now clarified, it would be open to the applicants or any other applicants to file fresh petitions.
With the above observations and directions, the petition stands disposed of with no order as to costs.