Karnataka High Court

Sri Guru Dattatreya Peeta ... vs The State Of Karnataka on 28 September, 2021

Author: P.S.Dinesh Kumar

                                         W.P No.18752/2018

                             1

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 28TH DAY OF SEPTEMBER, 2021

                         BEFORE                                R
     THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR

      WRIT PETITION No.18752 OF 2018 (GM-R/C)

BETWEEN :

SRI GURU DATTATREYA PEETA DEVASTHANA
SAMVARDHANA SAMITHI
DHARMASHREE, NO.91
SHANKARAPURA
BENGALURU-560 004
REPRESENTED BY ITS TRUSTEE
SRI. YOGISH RAJ ARUS
S/O SRI. NAGARAJ ARUS
AGED ABOUT 45 YEARS
RESIDENT OF KARTHIKERE
CHIKKAMAGALURU-577 101                        ... PETITIONER

(BY SHRI. ASHOK HARANAHALLI, SENIOR ADVOCATE FOR
    SHRI. N. JAGADISH BALIGA, ADVOCATE)

AND :

1.    THE STATE OF KARNATAKA
      REPRESENTED BY ITS SECRETARY
      REVENUE DEPARTMENT
      M.S.BUILDING
      BENGALURU-560 001

2.    THE COMMISSIONER OF RELIGIOUS
      AND CHARITABLE ENDOWMENTS
      IN KARNATAKA
      MAHADESHWARA BHAVANA
      ALUR VENKATARAO ROAD
      CHAMARAJAPETE
      BENGALURU-560 018
                                           W.P No.18752/2018

                              2


3.   THE DEPUTY COMMISSIONER
     CHIKKAMAGALURU DISTRICT
     CHIKKAMAGALURU-577 101

4.   THE TAHSILDAR
     CHIKKAMAGALURU TALUK
     CHIKKAMAGALURU-577 101

5.   SRI. SYED GHOUSE MOHIUDDIN
     SHAH KHADRI
     S/O LATE PEER MOHAMMED SHAH KHADRI
     AGED ABOUT 48 YEARS
     SAJJADA NASHEEN
     HAZRATH DADA HAYETH
     MEER KAHALANDAR
     RESIDENT OF JAMIA MASJID ROAD
     CHIKKAMAGALURU-577 101                 ... RESPONDENTS

(BY SHRI. PRABHULING K. NAVADAGI, AG A/W
    SHRI. R. SUBRAMANYA, AAG A/W
    SMT. RASHMI PATEL, HCGP FOR R1 TO R4-THROUGH
    VIDEO CONFERENCE;
    SMT. NEELA GOKHALE, ADVOCATE FOR R5- THROUGH
    VIDEO CONFERENCE)
                          . . . .


      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS FROM THE 1ST RESPONDENT IN PROCEEDINGS NO.RD 14
MUZARAI 2009 BENGALURU AND QUASH ANNEXURE-A DATED
19.03.2018 PASSED BY THE 1ST RESPONDENT NO.RD 14 MUZARAI
2009 BENGALURU AND THEREBY DIRECT THE 1ST RESPONDENT TO
IMPLEMENT THE REPORT DATED 10.03.2010 SUBMITTED BY THE 2ND
RESPONDENT VIDE ANNEXURE-P.


     THIS WRIT PETITION, HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 17.08.2021, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:-
                                                  W.P No.18752/2018

                                   3

                              ORDER

Shri Guru Dattatreya Peetha Samvardhana Samithi1

has presented this writ petition with a prayer inter alia to

issue a writ of certiorari and to quash the impugned

Government Order2; and to direct the State Government to

implement Endowment Commissioner's Report dated

10.03.2010.

FACTS OF THE CASE

2. As per petition averments, petitioner is a

religious and charitable Trust registered under the

provisions of the Indian Trust Act inter alia with aims and

objectives to protect and develop Shri. Guru Dattatreya

Peetha Devasthana, the Cave Temple at Inam Dattatreya

Peetha village in Chandradrona Parvatha, Chickmagaluru.

3. The 'Peetha' is a major Muzarai Temple under

Mysore Religious and Charitable Institutions Act, 1927. On

06.04.1973, the Karnataka State Board of Wakf took over

the management of the Peetha. Two devotees namely

Petitioner - Trust

W.P No.18752/2018

Sriyuths. B.C. Nagaraja Rao and C. Chandra Shekar filed a

suit before the learned Civil Judge, Chickmagaluru for a

declaration that plaint schedule Institution is a holy place of

worship belonging to Hindus and Mohammedans and upon

transfer to the Court of learned District Judge, it was

registered as O.S. No.25/1978; and decreed on

29.02.1980. The Karnataka State Board of Wakf challenged

the judgment and decree in RFA No.119/1980 before this

Court and it stood dismissed vide judgment dated

07.01.1991. The SLP (Civil) No. 17040/1991 filed thereon,

also stood dismissed on 01.11.1991.

4. The Tahasildar, Chickmagaluru called upon fifth

respondent's father to submit accounts with regard to the

rents collected during the festivals. Fifth respondent's father

challenged the same in W.P. No.2294/1984 contending

inter alia that he was the Sajjada Nasheen of

Shri Guru Dattatreya Bababudan Swamy Darga and the

direction issued by the Tahasildar, infringed his right of

management of the Institution. This Court noticed that the W.P No.18752/2018

decree passed in suit was not challenged by the State

Government, but the RFA filed by the Wakf Board was

pending consideration in this Court. It also noted that the

State Government and the Muzarai Officers were required

to act in terms of the decree and as such, the State

Government had directed on more than one occasion that

the Institution be restored to the Sajjada Nasheen to be

administered as per practice prevailing prior to 1975, but

no enquiry was made with regard to practices prevailing

prior to June 1975. On 01.03.1985, this Court has disposed

of the writ petition with following directions:

"The Commissioner for Religious and Charitable Endowments in Karnataka shall have the matter enquired into through the Muzrai Officer and report made to him, regarding the practice that was being followed or prevailing prior to June, 1975 in respect of management of the affairs of "Sri Guru Dattathreya Swamy Peeta" otherwise known as "Sree Gurudattathreya Bababudnaswamy Dargha" including conducting of Urs or festival, its property and all other matters pertaining to the institution. The Petitioner and devotees of the institution shall be afforded an opportunity in the course of the enquiry. A Public Notice shall also be issued in this regard. The commissioner shall on receipt of the report, take a decision after affording an opportunity of hearing to the Petitioner and other persons concerned, if any.

W.P No.18752/2018

On such decision being taken by the Commissioner, it is open to the Petitioner to challenge the same in accordance with law. The enquiry shall be completed and the decision shall be taken on or before the end of August 1985."

5. Pursuant to the above directions, the

Endowment Commissioner, submitted a Report dated

25.02.1989 codifying the religious practice prior to 1975.

6. Petitioner filed a public interest writ petition

registered as W.P. No.31580/2000 with a payer inter alia

for a direction against the Deputy Commissioner,

Chickmagaluru to handover the management of the Temple

to the petitioners. This Court, while disposing of the said

petition, has observed that steps were taken by

the authorities to appoint the Managing

Committee and the same had been challenged in Writ

Petitions No.52801 & 38148/2000, and it was open for the

petitioner to implead itself in the said proceedings.

Petitioner got itself impleaded in W.P. No.38148/2000 and

also filed a separate writ petition registered

as W.P.No.43621/2003 challenging Endowment W.P No.18752/2018

Commissioner's order dated 25.02.1989. It was considered

along with W.P. No.38148/2000 and W.P. No.4262/2002;

and disposed of by common order dated 14.02.2007. The

order passed by the Endowment Commissioner was

quashed. The matter was remitted to the Endowment

Commissioner to pass fresh orders. The State Government

challenged the said order in Writ Appeal No.886/2007 and

the same stood dismissed vide order dated 04.08.2008.

7. An organization by name 'Citizens for Justice and

Peace' challenged the order passed by the Division Bench in

SLP. No.29429/2008. The Hon'ble Supreme Court of India

passed an interim order on 01.12.2008 and directed the

Endowment Commissioner to submit his Report and

directed to maintain status-quo as per earlier report of the

Endowment Commissioner dated 25.02.1989.

8. The Endowment Commissioner submitted his

Report dated 10.03.2010 before the Apex Court suggesting

inter alia that a Hindu Archak be appointed by the W.P No.18752/2018

Management Committee for performing daily pooja. The

Sajjada Nasheen and some contesting respondents raised

objections to the said Report. The State Government took

a stand before the Apex Court that in view of the sensitive

nature of the issues involved in the case, it was required to

be considered by the State Cabinet and a decision would be

taken thereafter. The Civil Appeal No.2685/2010

(SLP No.29429/2008) and Civil Appeal No.2686/2010 were

disposed of on 03.09.2015 with the following order:

"2. Objections to the said Report have been raised by the appellant in C.A No.2686 of 2010 who claim to be Sajjada Nashin and also by some of the contesting respondents in the present appeal i.e. C.A No.2685 of 2010.

3. Shri Basava Prabhu S. Patil, learned senior counsel appearing on behalf of the State has submitted that in view of the sensitive nature of the issues involved the Report of the Commissioner is required to be considered by the State Cabinet and a decision thereon will be taken after considering the various pros and cons of the matter. Having regard to the issues involved and the stand taken by Shri. Patil on behalf of the State, we are of the view that, at this stage, the State should be left free to take its decision on the result of the Enquiry of the Commissioner as indicated in his Report. The State Government will naturally be duty bound to take into account all objections that may be raised against the said Report including the objections raised by the parties to the present appeals, as indicated above. Thereafter, the State W.P No.18752/2018

Government will decide the matter. In case any of the contesting parties have any grievance against such decision that the State Government may take, it will be open for them to seek recourse to the legal remedies as may be available.

4. In view of the aforesaid directions, we do not consider it necessary to keep the civil appeals pending any longer. Both the civil appeals and the contempt petition shall stand disposed of in terms of the above.

5. Status quo granted by this Court on 1st December, 2008 will continue until the State Government decides the matter in accordance with the present directions."

(Emphasis supplied)

9. The State Government appointed a High level

Committee consisting of a former Judge of this Court and

two others, to consider among other things, the

recommendation made by the Endowment Commissioner in

his order dated 10.03.2010. The High Level Committee

submitted its Report on 03.12.2017 with a recommendation

to continue the nature and character of religious practices,

which were prevailing as on 15th August 1947. Pursuant

thereto, State Government have issued the impugned

order.

W.P No.18752/2018

10. Shri. Ashok Haranahalli, learned Senior Advocate

for the petitioner submitted that:

Having undertaken before the Apex Court that the

cabinet would take appropriate action,

the State Government have appointed the High Level

Committee to examine the Report and such delegation

is bad in law and therefore constitution of the High

Level Committee is illegal;

The Hon'ble Supreme Court of India has directed that

the State Government was duty bound to take into

account all objections raised by the parties against the

report submitted by the Endowment Commissioner

and thereafter take decision in the matter.

The State Government have not issued notice to the

petitioner before passing the impugned order;

As per the terms of reference, the High level

Committee was required to examine the Report and to

consider the objections submitted by the parties;

W.P No.18752/2018

The Endowment Commissioner has considered the

statements of as many as 1,015 persons/associations.

He has also considered the book 'Kalandar E Barak

Hazarath Dada Hiyath Meer Kalandar Shri Guru

Dattatreya Baba Bundan Swami' written by Shri

S.A.Jabbar and published by Shri Shah Khadri. The

High level Committee has discarded the statements of

individuals as 'oral statements and hear say' and the

book as 'hear say evidence and myth'.

The High level Committee has, on one hand recorded

a finding that legal and factual aspects relating to the

Institution have attained finality and the findings of

the Courts are binding on all persons; and on the

other hand applying the provisions of 'The Places of

Worship (Special Provisions) Act, 1991' has held that

the practices prevailing as on 15th August, 1947 must

continue. Therefore, the report is untenable in law;

One of the members of the High level Committee is a

memorialist, who has filed his affidavit on 17.01.2009 W.P No.18752/2018

before the Endowment Commissioner in the enquiry

ordered by this Court in W.P.No.43621/2003. Being a

memorialist, he has favoured the interest of a

particular community and hence, the report of the

High level Committee suffers from the vice of bias.

11. Thus in substance, Shri Haranahalli argued that

appointment of the High Level Committee is contrary to the

stand taken by the State Government before the Hon'ble

Supreme Court of India and the impugned order has been

passed without hearing the petitioner which is also contrary

to the directions of the Apex Court. Further, the State

Government have simply accepted the High Level

Committee without independently considering Endowment

Commissioner's report.

12. State Government have filed their statement of

objections contending inter alia that the judgment and

decree in O.S.No.25/1978 and RFA.No.119/1980 could be

true; that after disposal of the matter in the Apex Court, W.P No.18752/2018

the State Government have constituted a cabinet

sub-committee comprising of Law Minister, Home Minister,

Minister for WAKF and Minister for Primary and Higher

Education. The said Sub-Committee decided that an expert

body was required to examine the Endowment

Commissioner's report and accordingly the High level

Committee was constituted. The Cabinet Sub-Committee

has considered the report of the High Level Committee and

thereafter, the Cabinet has met and taken an independent

decision as per the directions of the Apex Court.

13. Shri Prabhuling K. Navadagi, learned Advocate

General, argued in support of the impugned order. He

submitted that there are two distinct aspects in this case

namely, the secular and the religious. The State

Government have very carefully handled this matter by

appointing a High Level Committee to examine the report

of the Endowment Commissioner. In reply to

Shri. Haranahalli's argument that petitioners were not

heard by the State Government before passing the W.P No.18752/2018

impugned order, it was conceded by him that the original

file does not contain any evidence that notices were issued

to the petitioner.

14. Smt.Neela Ghokhale, learned advocate for fifth

respondent submitted that, in its order dated 06.04.2018,

the Apex Court has recorded the statement made on behalf

of the State Government that impugned order would be

notified in the Official Gazette and in that view of the

matter, the orders of the Apex Court dated 22.09.2017 and

27.03.2017 had stood complied with. Therefore, the only

remedy for the petitioner is to seek review of the said

order. She further submitted that petitioners' Trust Deed is

not on record and therefore, it does not have locus standi

to prosecute this Writ Petition.

15. I have carefully considered rival contentions and

perused the records.

16. In the conspectus of facts of this case, the point

that arises for consideration is whether the decision making W.P No.18752/2018

process adopted by the State Government while passing the

order dated 19.03.2018 suffers from any legal infirmity?

17. Undisputed facts of the case are, suit in

O.S.No.25/1978 has been decreed on 29.02.1980 in

following terms;

"This suit coming on for final disposal before Sri.P.Jayaram, B.A., LL.B., District Judge, Chikmagalur in the presence of Sri. D. Lakshmikanta Iyengar, Advocate for the plaintiffs and by Sri. K. Durgoji Rao, Government Pleader for D- 1 and D-3 and by Pleader Sri. M.D. Vasantha Kumar for D-4 and D-2 absent. It is ordered and decreed that not only in favour of plaintiffs, but also in favour of the Hindu Devotees or disciples of "Sri Guru Dathathreya Swamy Peeta" declaring that the plaint schedule Institution is a religious institution being a holy place of worship belonging to or of the Hindus and Mohammadans alike where they worship, it is not a Wakf property and therefore, the inclusion of the plaint schedule property in the list of wakfs by the second defendant is improper and illegal, and such inclusion will not affect the rights of the plaintiffs or the Hindus, and that the 2nd defendant has no right to control or manage the suit schedule institution, the administration, management and control of the said suit schedule property be retransferred from the control of the second defendant to the third defendant as it was being managed prior to June 1975, the 2nd defendant is hereby restrained by means of a permanent injunction not to interfere with the plaintiffs' or Hindus' rights in respect of the plaint schedule institution or property. Since it is a suit on behalf of the entire community of Hindus and it is against the order of W.P No.18752/2018

the Government in transferring the suit schedule property from its Muzrai Department to the Wakf board and as it is not the fault of the 2nd defendant in including the suit schedule property in the list of wakfs, I feel that in the circumstances to direct the parties to bear their own costs of the suit. Advocate fee of Rs.100/-

(Emphasis Supplied)

18. RFA No.119/1980 filed against the judgment and

decree in O.S. No.25/1978 has been dismissed with

following observation:

"......................... What is more heartening and commendable is the attitude of the 4th defendant Sajjada who is said to be a Muslim not to challenge the averments of his Hindu brotherin the plaintiffs that this shrine belongs to both Hindus and Muslims. Equally heartening is the spirit of Hindu plaintiffs in not claiming the shire as exclusively belonging to the Hindus for the reasons that there are "Paduka" and Nandadeepa" maintained and protected since ancient time and it is also known as "Guru Dathatreya Peeta". It is only the Wakf Board that wants to lay claim on it taking advantage of its own unilateral acts in 1964 without the very Muslim community people offering prayer since hundred of years making any claim on it as their exclusive shrine. The suit institution "the Guru Dathatreya Bababudan Swamy" stands aloft as a shining example of true secularism in this world divided so sharply on narrow caste, communal or religious considerations."

(Emphasis supplied)

19. Thus, the Civil Court has decreed Shri Guru

Dattatreya Swami Peetha as a religious institution being a W.P No.18752/2018

holy place of worship belonging to or of the Hindus and

Mohammadans and it is not a WAKF property. The said

judgment and decree has been affirmed by this Court3 and

the Apex Court4. The Civil Court has recorded that,

according to the plaintiff, during March 1976, the State

Board of WAKF had seized the Paduke of Shri Guru

Dattatreya Swami and the Nandadeepa kept for worship.

On a representation made by the leaders of

Chikkamagaluru town, the Deputy Commissioner of

Chikkamagaluru got back the Paduke and Nandadeepa.

After this incident, plaintiff learnt that Shri Guru Dattatreya

Swami Peetha and properties attached to it were published

in Gazette dated 16.10.1964 as 'WAKF' property and one

Ghouse Mohiddin was named as 'Mutawalli' of the said

WAKF.

20. Pursuant to direction in W.P. No.2294/1994, the

Endowment Commissioner submitted his Report dated

In RFA No.119/1980 disposed of on 07.01.1991

In SLP (Civil) No.17040/1991 disposed of on 01.11.1991 W.P No.18752/2018

25.02.1999 and it has been set-aside by this Court5. The

Writ Appeal filed thereon has been dismissed6. The Civil

Appeal has also been disposed of by recording the stand

taken by the State Government7.

21. The original file produced by the State

Government reveals that the Cabinet in its meeting held on

19.04.2017 decided to appoint a Sub-Committee to

examine the report. The Sub-Committee recommended for

appointment of a Committee consisting of an Hon'ble Judge

of the High Court or the Supreme Court of India. The

Cabinet in its meeting held on 30.05.2017 decided to

appoint a Committee of three members. Pursuant thereto,

the High Level Committee was constituted.

22. The High Level Committee has recorded that it

has noticed the sanad dated 24.05.1798 of Tippu Sultan,

the Archeological Survey of Mysore, 1916 and the decree in

Common order dated 14.02.2007 in W.Ps.No.38148/2000 c/w. 4262/2002 & 43621/2003

W.A No.886/2007 disposed of on 04.08.2008

C.A. No.2685/2010 W.P No.18752/2018

O.S.No.25/1978 and other material. In its concluding

remarks at para 39, the High Level Committee has held

that the Endowment Commissioner had failed to consider

the historic documents such as sanad and archeological

records. In para 40, it has held that no amount of oral

evidence shall dislodge the documentary evidence. In para

41, it has held the book 'Kalandar E Barak' by S.A.Jabbar as

an individual opinion based on hear say evidence and myth.

23. In the impugned order, after recording the facts

leading till the appointment of the High Level Committee

and its conclusions, the decision/recommendations of the

Cabinet Sub-Committee have been noticed and they read

as follows:

"Decision/Recommendation

1. As per the recommendations of the High Level Committee, the report of Endowment Commissioner dated 10.03.2010 to be rejected.

2. Having regard to the above it is decided to recommend that the same practices shall continue to be followed which would be in due compliance of the Hon'ble High court single Bench order dated:14.02.2007 in clubbing writ petition nos.38148/2000, 4262/2002 & 43621/2003 as noticed below:-

W.P No.18752/2018

(1) "There is a Muzwar appointed by the Shah Khadri to perform daily rites (Pooja) inside the cave and he alone enters inside the sanctum-sanctorum of the institutions and distributes Tabaru/Theertha to the devotees of both communities;

(2) He alone puts flowers to the Paduka/Khadave/lits the Nanda Deepa;

(3) The recognized Hindu Gurus of different mutts are also taken inside the cave gate to offer their respects to the Paduka/Khadava;

(4) Persons who do not take food prepared in the Langarakhana are given 'padi' i.e., the provisions like Rice, Dhal etc., for preparing their food' (5)the Muzawar takes Lobana (Sambrani) and perform religious rituals inside the main shrine between 7 pm and 8 pm daily;

(6) The above practices include certain practices which are found in Hindu temples also, such as;-

                    i.       offering of flowers to Padukas
                    ii.      lighting the Nanda Deepa
                    iii.     giving theerta to pilgrims
                    iv.      breaking of coconuts
                    v.       taking Hindu Gurus of religious mutts
                             with respect'
                    vi.      giving padi to the pilgrims."

24. The proceeding of the meeting of the Cabinet

Sub-Committee held on 20.01.2018 is found between pages

No.917 and 919 of the original file and the Report of the

Cabinet Sub-committee between pages No.920 and 937.

W.P No.18752/2018

The decision/recommendation of the Cabinet Sub-

Committee are between pages No. 921 and 922 of the file.

It is relevant to note that the recommendation of the

Cabinet Sub-Committee in the original file reads as follows:

"22. Having regard to the above, it is decided to recommend that the same practices shall continue to be followed which would be in due compliance with the direction of the Court which is noticed below."

25. Surprisingly, what is extracted in the impugned

order does not match with the original recommendation and

it reads as follows:

"2. Having regard to the above, it is decided to recommend that the same practices shall continue to be followed which would be in due compliance of the Hon'ble High Court Single Bench order dated 14.02.2007 in clubbing writ petition nos.38148/2000, 4262/2002 & 43621/2003 as noticed below."

(Emphasis Supplied)

26. Therefore, it leads to an irrefutable inference

that when the matter was discussed by the Cabinet, it was

under the incorrect impression that the recommendation is

in compliance with the order passed by this Court8. It is

Common order dated 14.02.2007 in W.Ps.No.38148/2000 c/w. 4262/2002 & 43621/2003 W.P No.18752/2018

also relevant to note that the recommendations of Sub-

Committee (at sub-paragraphs No. 1 to 6 of para 2 in the

impugned order), are precisely the same contained in the

first Report of the Endowment Commissioner dated

25.02.1989, which has been quashed by this Court9. The

impugned order gives an impression that it is in consonance

with the directions issued by this Court10, which is factually

incorrect. Therefore, the reasons recorded in the impugned

order are without proper application of mind.

27. It was argued by Shri. Ashok Haranahalli that

one of the members of High Level Committee,

Shri. Rahmath Tarikere, has deposed before the

Endowment Commissioner. Therefore, the Report is biased.

28. In his Report11, the Endowment Commissioner

has considered statements of as many as 1,015

persons/institutions. He has recorded at para 143(f) that

Common order dated 14.02.2007 in WPs No.38148/2000 c/w. 4262/2002 & 43621/2003

Common order dated 14.02.2007 in WPs No.38148/2000, c/w. 4262/2002 & 43621/2003

dated 10.03.2010 W.P No.18752/2018

as per the annual report of the Mysuru Archeological

Department, 1932, Shri Guru Dattatreya Swami Peetha is a

small cave in Baba Budangiri, which is sacred to both

Hindus and Mohammadans. He has rightly recorded that

Shri Dattatreya is well known as son of Sage Athri by his

virtuous wife Anasuya and embodiment of Hindu trinity, the

Gods, Brahma, Vishnu and Shiva.

29. The Endowment Commissioner has further

recorded that 1,861 Acres of land was granted to

Shri Dattatreya Devaru and 111.25 Acres to Shri Baba

Budan Dharga separately by the then Maharaja of Mysore.

After the enactment of Karnataka Inams Abolition

(Religious and Charitable) Act, 1955, the inam lands of the

Institution have vested with the Government and upon such

vesting, the tastik amounts of Rs. 1,16,207/- and

Rs.69,360/- have been fixed in favour of Shri. Dattatreya

Devaru and Baba Budan Darga respectively.

W.P No.18752/2018

30. The Endowment Commissioner has further

recorded that in the book 'Kalandar E Barak Hazarath Dada

Hiyath Meer Kalandar Shri Guru Dattatreya Baba Bundan

Swami' written by Shri. S.A. Jabbar and published by Shri.

Shah Khadri contains a reference at page 113 that 'early in

the morning the next day, a Brahmin and a Jangama

entered the cave as per the custom to worship etc. He has

rejected the argument that there is no basis for the said

literature, as untenable, on the ground that the book has

been published by Shah Khadri himself and he has not

denied this aspect in the pleadings. Further, in pages 94

and 95 of that book, it is mentioned that there was a big

stone idol in the cave having three heads and it was being

worshipped as Brahma, Vishnu and Maheshwara.

31. The Endowment Commissioner has also

adverted to a literature, 'Karnataka Dattatreya Aradhane'

by Dr. Suryakantha Kamath.

W.P No.18752/2018

32. With regard to the rituals performed in the

Peetha/Darga, the Endowment Commissioner has recorded

that as per Mysore Gazetteer Volume V (pages 1134-1136),

Shri Dattatreya had resided here at the end of his life and

disappeared in this peetha. Further, as per the Macanzi

Chronicle, this peetha came into the possession of Muslims

for administration after the regime of Hyder Ali. There

were padukas with silver covering and Shri

Dattatreyaswamy with Deepasthambha.

33. The Endowment Commissioner has recorded the

versions contained in the statement of 1,015

persons/institutions. According to him, the members of the

Communal Harmony Front(deponent No. 143) have stated

that in Baba Budangiri, it is believed that Baba and Datta

are one and the same.

34. One Shri. Ramachandra Rao and others

(deponents No. 434 to 451) have stated in their Affidavits

that there were padukas, trishoola, danda kamandala, W.P No.18752/2018

deepastambha with nandadeepa and pooja was performed

as per Hindu customs.

35. It is further recorded that one Shri. M.N. Bhasha

(deponent No.809) has stated that he was working as

Mujawar incharge for the period between 1969 and 1975.

There are samadhis of his parents on right side of the

steps. The devotees were allowed to enter the cave and

proceed upto Peetha. Shri Gurudattatreya and his four

disciples were said to have performed meditation on this

Peetha. Dada Hayat Meer Khalander who came from

Mecca-Madeena had mediated here. Two Nandadeepas

were burning in front of the Peetha along with Hanathes.

(Deepa made out of mud). The water flowing from the

fountain was treated as theertha. The fountain was widened

with plastering during the time of Peer Mohammed Shah

Khadri and thereby the natural flow of water had stopped

and water was allowed to flow through a pipe connection

from outside.

W.P No.18752/2018

36. On the left side of the cave, Anasuya Devi was

said to be preparing Roti out of the mud which were

converted into Roti and the same were given to the

disciples. The Muslims believed that it is the Peetha of

Mama Jigni, who was the disciple of Dada Hayat. Hindu

devotees were performing the pooja with Arasina

Kumkuma, blouse piece and bangles. The burning of

camphor was in practice. The local people were bringing

the idols from their places in celebration and worshipping

the same on the peetha. Some of the devotees were

cleaning the idol and padukas out of the water brought

from Manikyadhara, Galikere and Dattapeetha. They were

worshipping as per Hindu customs and 'padi' was given to

them by Shah Khadri and the sweet prasada was

distributed to the devotees. The devotees were allowed to

worship the Padukas through Brahmin or Lingayat Archaks

according to their custom with Bhajans and offering of

flower, garland and udusticks and camphor. Shah Khadri

was taking the Mathadhipatis inside the cave and arranging W.P No.18752/2018

to worship peetha with honour and 'Swetha chathri'.

Everyday in the morning and evening Shah Khadri was

sanctifying the cave with Dhupa and lobana and offering

coconut.

37. The Audumbara tree outside the cave was also

worshipped by devotees after pradakshina. The peetha

found at Manikyadhara is said to be the place where

Dattatreya had mediated. The devotees were offering in

cash and in kind, such as gold articles, cow, buffalo and

cocks which were sold by Shah Khadri unauthorisedly.

Silver items such as horse, hasta and cradles were also

being offered.

38. According to the Endowment Commissioner, the

Mujawar has also stated that removal of stone threshold

and replacing it by steel door at the entrance has led to

erosion of cave. After 1975 disputes arose with regard to

rituals (pooja) among Hindus and Muslims and the old

practice must be restored.

W.P No.18752/2018

39. In substance, according to the Endowment

Commissioner both Hindus and Muslims have been visiting

Baba Budangiri and offering their pooja and prayers and it

was a centre of worship of Hindus prior to arrival of Dada

Hayath Meer Kalandhar.

40. It is recorded by the Endowment Commissioner

that Shri. Rahmath Tarikere, Professor, Kannada University,

Hampi (deponent No.433), has stated that Baba Budangiri

is a centre of Sufis. The non-vedic Datta pantha had

friendship with the Sufis and muslims and hindus of lower

caste jointly worshipped; and that there is no precedent of

upper caste Hindus having devotion to Baba Budan.

Admittedly, he is a Member of the High Level Committee.

41. It is settled principle of law that justice should

not only be done but be seen to be done. Nearly, a century

back, Lord Hewart, CJ, has stated that it is not merely of

some importance, but of fundamental importance that W.P No.18752/2018

justice should both be done and be manifestly seen to be

done12.

42. Shri. Haranahalli has imputed bias against the

Report of the Committee, which is not a judicial body.

Nonetheless, the recommendation contained in the Report

has influence upon the decision making process by the

State Government. The consequential orders emanating

therefrom impact the citizen with vigor of unmatched

Executive power. Therefore, a decision by the Executive

shall, without any exception, be free from even the risk of

bias. In this context, it may be apt to recall the following

words of Lord Esher noted13.

"The question is not, whether in fact he was or was not biased. The court cannot inquire into that. . . . In the administration of justice, whether by a recognised legal court or by persons who, although not a legal public court, are acting in a similar capacity, public policy requires that, in order that there should be no doubt about the purity of the administration, any person who is to take part in it should not be in such a position that he might be suspected of being biased."

R Vs. Sussex Justices (1923) All ER 233 at 234

Ranjit Thakur Vs. Union of India (1987)4 SCC 611 (para 18) W.P No.18752/2018

43. The recommendations of the High Level

Committee have been accepted. Though Shri. Rahmath

Tarikere, has stated before the Endowment Commissioner

that Hindus and Muslims were jointly worshipping, the

Committee has recommended for rejection of second

Report of the Endowment Commissioner. The Government

have permitted appointment of only a Mujawar. Therefore,

Shri. Haranahalli's argument that the Report of the High

Level Committee suffers from the vice of bias is well

founded.

44. The High Level Committee has recorded in

paragraph No.35 as follows:

"35. The institution in question, called as Sri Guru Dattatreya Baba Budan Swamy Dargah is in existence for several centuries. This institution Sri. Guru Dattatreya Baba Budan Swamy Dargah is an ancient place of pilgrimage venerated by both the Hindus and Muslims. This institution is managed by Shah Khadri and the prayers inside the cave are offered through the Muzavar appointed by Sajjada Nasheen. They Prayers offered in this institution are a mixture of both the Islamic and Hindu religious traditions. The Commissioner, in his report, ignored the constitutional protection guaranteed to these type of institutions and committed a grave error, while recommending the appointment of a Hindu Archak, to offer prayers in W.P No.18752/2018

accordance with the Agama and such other things. Therefore, the report of the Commissioner as recommended to be rejected as the same is unconstitutional."

(Emphasis supplied)

45. Thus, the High Level Committee has accepted

that the Institution has been in existence since several

centuries and it is an ancient place of pilgrimage and it has

been venerated by both Hindus and Muslims. In para 37 it

has observed that there is no scope to convert the place of

worship as per the provisions of 1991 Act14 and the

Endowment Commissioner has refused to abide by it. It is

further stated in the report that the Endowment

Commissioner's suggestion of appointment of Hindu Archak

to offer prayers as per agamas amounts to interfering with

the religious nature of the place of worship and its violation

is punishable under Section 6 of the 1991 Act15. It is

relevant to note that Sub-section (3) of Section 4 makes it

clear that nothing contained in Sub-section (1) & (2) shall

apply to any suit, appeal or other proceedings with respect

The Places of Worship (Special Provisions) Act, 1991

The Places of Worship (Special Provisions) Act, 1991 W.P No.18752/2018

to any matter referred to Sub-section (2) finally decided or

disposed of by a Court. The relevant provision reads as

follows:

"(3) Nothing contained in sub-section (1) and sub- section (2) shall apply to,--

(a) xxxxxxx

(b) any suit, appeal or other proceeding, with respect to any matter referred to in sub-section (2), finally decided, settled or disposed of by a court, tribunal or other authority before the commencement of this Act."

46. The 1991 Act has come into force on 18th

September 1991. The suit in O.S. No.25/1978 has been

decreed on 29.02.1980. The RFA and the SLP have been

dismissed. Thus, the decree of the Civil Court has attained

finality. Parties are bound by the decree of the Court.

Therefore, Sub-sections (1) & (2) of Section 4 of 1991 Act

have no application.

47. The Endowment Commissioner's report

indubitably demonstrates that as many as 1,015

persons/institutions have been heard by him and the W.P No.18752/2018

common factor in their version is, both Hindus and Muslims

offer pooja and prayers.

48. Out of the persons who have deposed before

Endowment Commissioner, the statement of Shri. M.N.

Bhasha (Deponent No.809) is very relevant. He was the

Mujawar between 1969 and 1975. According to him, Hindus

were allowed to worship the Padukas through Brahmin or

Lingayat Priest as per their custom. He has also given

details of Pooja and Bhajans. He has expressed his opinion

that the old system must be restored. The Report also

shows that endowments and grants were given to the

Institution both in the name of Dattatreya Devaru and Shri.

Baba Budan Darga separately by the Maharaja of Mysore.

Upon abolition of Inams in the year 1995, the tastik

amounts have been separately fixed.

49. The impugned order permits only a Mujawar to

be appointed by Shah Khadri to enter the sanctum of the

cave and to distribute 'teertha' to both Hindus and Muslims.

W.P No.18752/2018

He is also required to offer flowers to the paduka and light

the nandadeepa. On the face of it, this portion of the order

runs counter to the practices adopted by the Muslim

community because, the idol worship is not recognized by

them.

50. Article 25 of the Constitution guarantees

Freedom of Conscience and free profession, practice and

propagation of religion. By the impugned order, firstly, the

State have infringed upon the right of Hindu Community to

have the pooja and archana done in the manner as per

their faith. Secondly, State have imposed upon the Mujawar

to perform 'paduka pooja' and to light 'nanda deepa'

contrary to his faith. Both these acts amount to flagrant

violation of rights of both communities guaranteed by

Article 25 of the Constitution of India.

51. Though the versions of large number of devotees

recorded by the Endowment Commissioner including that of

the Mujawar who was working during 1975, demonstrate W.P No.18752/2018

that both Hindus and Muslims were worshipping as per their

respective customs, the State Government have chosen to

accept the High Level Committee's recommendation to

reject Endowment Commissioner's Report. As recorded

hereinabove, the High Level Committee Report is not free

from the vice of bias.

52. The Constitution Bench of the Hon'ble Supreme

Court of India, in M.Siddique Vs. Mahanth Suresh Das, the

Ram Janma Bhumi Temple case16 has held that faith is a

matter for the individual believer. Once the Court has

intrinsic material to accept that the faith or belief is

genuine, it must defer to the belief of the worshipper. The

relevant portion in the passage reads thus:

"809. ....... Faith is a matter for the individual believer. Once the court has intrinsic material to accept that the faith or the belief is genuine and not a pretence, it must defer to the belief of the worshipper This, we must do well to recognise, applies across the spectrum of religious and their texts, Hinduism and Islam being among them. The value of a secular Constitution lies in a tradition of equal deference."

(Emphasis supplied)

(2020)1 SCC 1 (para 809) W.P No.18752/2018

53. Therefore, the impugned order is unsustainable

in law for more than one reason:

Firstly, because, contrary to the stand taken before the

Hon'ble Supreme Court of India that the Cabinet would

consider the pros and cons and take a decision, the

State Government have delegated the consideration to

a High Level Committee;

Secondly because, the recommendation of the Sub-

Committee, has been incorrectly extracted in the

impugned order. The recommendation extracted gives

an impression that the practices recommended are in

consonance with the order of this Court17, which is

factually incorrect because, the six recommendations

recorded in the impugned order are those contained in

the earlier Report of the Endowment Commissioner

dated 25.02.1989 which has been quashed by this

Court. Therefore, the decision arrived at, is on an

incorrect premise and hence vitiated;

Common order dated 14.02.2007 in W.Ps. No.38148/2000, 4262/2002 & 43621/2003 W.P No.18752/2018

Thirdly because, the High Level Committee has

mis-directed itself with regard to the 1991 Act, when

the issue in dispute has attained finality as per the

decree in O.S. No.25/1978;

Fourthly because, it is nobody's case that the place of

worship is being converted. On the other hand, it is the

common case of both communities that it is a place of

worship for both Hindus and Muslims;

Fifthly, because, the High Level Committee Report is

not free from bias, as Shri. Rehamat Tarikere, one of its

Members has deposed before the Endowment

Commissioner and the Committee has recommended

rejection of his Report;

Sixthly, because, the impugned order infringes the right

of both communities guaranteed under Article 25 of the

Constitution by preventing Hindus from performing