Chandra Reddy, J. - (1.)These petitions are filed against the orders of different First Class Magistrates directing delivery of the properties to the trustees appointed by the Deputy Commissioner of the Board of Religious and Charitable Endowments under Section 87 of the Hindu Religious and Charitable Endowments Act (hereinafter to be called as the Act). A preliminary objection is taken to the maintainability of these petitions on the ground that the First Class Magistrate exercises only executive functions under Section 87 and does not act in a judicial capacity and that, at any rate, it was not as a Court that he exercises jurisdiction but as a persona designata. These arguments are based on a judgment of Justice Bhimasankaram in Anjayya v. Venkateswara Das, 1958-1 Andh WR 283.
(2.)To appreciate the points involved in these revision cases, it is useful to set out the relevant sections of the Act and of the Criminal Procedure Cede (hereinafter to be referred to as the Code). Section 87 of the Act (omitting the unnecessary portions) runs thus: "87. Where a person has been appointed -- (a) as trustee or executive officer of a religious institution, (b) to discharge the functions of a trustee of a religious institution in accordance with the provisions of this Act, or (c) as manager under Section 56 or in any scheme framed by the Board before the commencement of this Act, and such person is resisted in, or prevented from obtaining possession of the religious institution, or of the records, accounts and properties thereof, by a trustee, office-holder or servant of the religious institution who has been dismissed or suspended from his office or is otherwise not entitled to be in possession or by any person claiming or deriving title from such trustee, office-holder or servant not being a person, claiming in good faith to be in possession on his own account or on account of some person not being such trustee, office-holder or servant, any Magistrate of the first class in whose jurisdiction such institution or property is situated shall, on application by the persons so appointed, and on the production of the order of appointment and where the application is for possession of property, of a certificate by the Commissioner in the prescribed form setting forth that the property in question belongs to the religious institution, direct delivery to the person appointed as aforesaid of the possession of such religious institution, or the records, accounts and properties thereof as the case may be: Section 435 of the Code says (omitting the portions unnecessary for our purpose): "The High Court or any Sessions Judge or District Magistrate or any Sub-Divisional Magistrate empowered by the State Government in this behalf, may call for and examine the record of any proceeding before any inferior Criminal Court situated within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior court and may, when calling for such record, direct that the execution of any sentence or order be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation: All Magistrates, whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purpose of this sub-section and Section 437 Section 439 of the Code recites (omitting the unnecessary portions):-- 1. In the case of any proceeding the record of which has been called for by itself or which has been reported for orders or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 423, 426, 427 and 428 or on a Court by Section 338, and may enhance the sentence; and, when the Judges composing the court of revision are equally divided in opinion, the case shall be disposed of in manner provided by Section 429.
(3.)Where the sentence dealt with under this section has been passed by a Magistrate acting otherwise than under Section 34, etc. 3. It is clear from Section 87 of the Act, extracted above, that the Magistrate is required to direct delivery of the property from a dismissed or suspended trustee or office-holder or servant or from persons Otherwise not entitled to be in possession or from one not claiming in good faith to be in possession on his own account, or on account of some person not being such trustee etc. This involves a decision on the issue whether the persons who offer resistance to the trustee appointed by the Commissioner taking delivery of the property have tide of their own to continue in possession or whether the claim in that behalf is in good faith. The intendment of this section obviously is to save people who have not forward derivative titles from the dismissed trustees or employees of the institution or who claim them in good faith, from the operation of the section. Before reaching a conclusion in that behalf, the Magistrate has to hold an inquiry into the matter. In this situation, we fail to see how the Magistrate could be regarded not as a judicial functionary but as one discharging the duties of an executive officer. We are firmly of opinion that the proceedings before him are judicial in character.