Saldanha, J.@mdashA rather interesting situation has arisen in this Writ Appeal wherein, the appellant before us who claims to be an Archaka performing the pooja in the Vinayak Dev Temple at Arasgud village and also claiming to be a person who maintains the temple has been granted occupancy rights by the tribunal by order dated 26.9.1994. The appellant had filed Form No. 1A under the provisions of the Karnataka Certain Inams Abolition Act, 1977. The tribunal granted occupancy rights in his favour in respect of the three Survey Numbers in question and it is this decision which was challenged before the learned Single Judge by his sister-in-law, i.e. the wife of his late brother. The learned Single Judge set aside the order on the ground that the lands effectively vest in the deity and that therefore the grant of occupancy rights in such situation is something unthinkable and furthermore that the entries in the revenue records show the name of the deity as the owner of the lands and that consequently, there was absolutely no justification for the tribunal to have allowed the application in question. The tribunal''s order was accordingly set aside and it is against this decision of the learned Single Judge that the appeal had been preferred.
2. As far as the point of law is concerned, Mr. Hegde, learned Counsel who represents the appellant submitted that as regards the view expressed by the learned Single Judge with regard to the main issue namely the question as to whether a Pujari of a temple can claim tenancy rights on the ground of deemed tenancy is concerned, that the law is well settled in so far as even in the decisions reported in
3. While on this point, we need to record that the learned Govt. Advocate submitted that prima facie, it appears that the present appellant who undoubtedly applied on Form 1A did so after the prescribed deadline had elapsed and that therefore, the High Court at stage III (after the tribunal and the learned Single Judge have both disposed of the proceeding) must suo motu intervene on this ground and set aside the tribunal''s order. In the first instance, the tribunal which could have dismissed the application assuming there was a legal impediment or bar had not done so and it is not all that clear to us as to what the reason for this is. Secondly, assuming the tribunal was wrong in entertaining the application the State ought to have challenged that order which it has not done and where the grantee has come in appeal against the learned Single Judge''s order it is too late in the day for us to entertain a challenge from the State to the legality or competence of the original order. Again, we say this not because of any technicalities but because there is a procedure prescribed by law and even under the Code of Criminal Procedure where an order is not challenged in appeal or through cross-objections the doctrine of finality would apply and that it would certainly not be open long after the period of limitation is over and in the course of a third party litigation for the State to raise pleas which the High Court would be required to examine. There is some ambiguity with regard to the question as to when the deadline has elapsed because the State itself had issued extensions from time to time and in view of the ambiguous position, we refuse to go into this question principally because it was not raised by the State at any time before the original order became final.
4. As far as the main ground of challenge is concerned, the appellant''s learned Counsel submits that the law is clear and unambiguous that it is well settled and absolutely crystallised to the extent that where the tribunal grant occupancy rights it may be open to the aggrieved party namely the land owner provided that party has contested the proceeding before the tribunal, to present a challenge. In the present instance where the temple authorities have neither appeared nor resisted the grant of occupancy rights, where they have not challenged the order passed by the tribunal, Mr. Hegde submits that the High Court was in error in having entertained a challenge from the sister-in-law. Mr. Hegde is quick to point out that had the late brother who is now represented by his wife being an applicant or a rival claimant before the tribunal, then alone could he or his wife who is his legal representative / could have challenged that order but in the absence of any such application by way of a rival claimant that the petitioner before the learned Single Judge had no locus standi to challenge the tribunal''s order. We do not need to seriously delve into the aspects of the law as far as locus is concerned because it is abundantly clear that a party to the proceeding alone or at the highest a party who ought to have been cited as a respondent to the proceeding and was wrongly left out and who, but for this situation would have been a party to the proceeding, can alone present a challenge. The fact remains that this aspect of the law was neither pointed out to the learned Single Judge nor was it argued before him nor did it come to the notice of the learned Single Judge and that is why, it has gone totally by default. In our considered view, the Writ Petition ought to have been summarily dismissed on the ground of want of locus and on this ground alone, the order passed by the learned Single Judge will have to be set aside.
5. Elaborating here, we need to point out that even on facts we are more than fully fortified by the references in the tribunal''s order to the fact that as early as in the year 1957 a family partition had taken place between the brothers and that the right to perform the pooja, to look after the temple and cultivate these three lands went to the share of the present appellant and this position is totally destructive of the subsistence of any rights that could have been claimed by the late brother or his wife. It appears that some devious attempt was made before the learned Single Judge, as emerges from the order, to put forward a position that the brother''s wife represented the temple. That contentions cannot come to the assistance of the third respondent for the reason that we do not have before us any indication of who is effectively managing the temple because going by the position that normally obtains, there is invariably a Board of Trustees or a Board of Administrators in whom the affairs of the temple virtually vests, and this function is distinct from that of the pujari who may look after the day-today maintenance and upkeeping. Invariably, the temple administration vests in a Trust registered under the Bombay public Trust Act but in the absence of any material to that effect we restrict ourselves to pointing out that the plea put forward by the learned Single Judge which seems to have been wrongly accepted by him that the petitioner who is the third respondent before us represented the temple is factually erroneous and legally unsustainable.
6. Viewed at from any angle, the interference with the tribunal''s order in this case was totally unjustified. We also have on record the earlier order passed in favour of the late brother in respect of certain other lands which is indicative of the fact that even from the angle of fairness, certain lands have gone to that brother and there could be really no objection to the present three lands, the occupancy right of which has been granted to the present appellant.
7. In the result, the appeal succeeds. The order passed by the learned Single Judge is set aside and the order of the tribunal stands restored. No order as to costs.
