- (1.) THIS is a special appeal from a judgment of a single Judge of this Court in a case under Article 226 of the Constitution. The dispute relates to the succession to the mahantship of a math known as the Jotir Math. The Jotir Math is one of the four maths founded by the first Shankaracharya at the four corners of India, and is situated in Pauri Carhwal in this State. The other maths are at shringiri in Mysore, Gobardhan Peeth in Puri and Sharda Peeth in Gujerat. The Mahants of these maths are also called Shankaracharyas. The last Shankaracharya of jotir Math was swami brahmanand Saraswati who died on 20-5-1953. He was alleged to have executed a will, dated 18-12-1952, by which he had nominated as his successor to the mahantship of Jotir Math, as also to his personal properties, Swami Shantanand Saraswati, the appellant before us. Some persons, including respondents 3 to 6, were dissatisfied with the nomination of the appellant to the mahantship and they challenged the accession of the appellant to the mahantship of the math. The four respondents -- 3 to 6 -- as well as one Swami Sarupanand made an application to the advocate General on 25-11-1953, asking him to accord them permission to institute a suit under section 92, Civil P. C. for some of the reliefs mentioned in that section against the appellant in respect of the properties pertaining to Jotir Math. . On receipt of that application the Advocate general directed the Collector of Banaras to hold an enquiry and to submit his report to him. The collector thereupon issued notice to the appellant and held an enquiry in which both sides adduced evidence before him and he reported that Swami Sarupanand and others, who wanted the consent of the Advocate-General to the institution of a suit under Section 92, Civil P. C. , were not entitled to the permission sought. The Advocate General, however, came to a contrary decision and considered that permission should be granted to them and accordingly he granted the permission by an order, dated 29-1-1954. Later on, Sarupanand, who himself claimed to be the senior-most disciple of the late Swami brahmanand Saraswati and on that account to be entitled to succeed to the gaddi of Mahant, did not consider that he should himself be a party to that suit. The remaining four persons thereupon made a fresh application to the Advocate-General on 26-4-1954, for a fresh permission being granted to them. The Advocate-General granted them the required permission by an order, dated 29-4-1954. On this occasion no further enquiry was made by the Advocate-General as to whether he should grant the permission or not.
(2.) ARMED with the sanction of the Advocate-General respondents 3 to 6 filed a suit against the appellant under Section 92, Civil P. C. in the court of the District Judge of Banaras. The appellant thereupon made an application under Article 226 of the Constitution in this Court praying that the sanction granted by the Advocate-General to the opposite parties may be quashed as the opposite parties" had no "interest in the math and further because no enquiry had been made by the Advocate-General before he granted the sanction and no opportunity was given to the appellant to show cause why the permission should not be granted. It was alleged that the Advocate-General was bound to act in a quasi-judicial manner in giving his consent under Section 92, Civil P. C. and that he was bound to make on inquiry which he did not do. The learned single Judge before whom the matter came up for orders dismissed the application without issuing notice to the opposite parties. He based his decision on the ground that if the sanction granted by the Advocate-General was void the petitioner had a remedy of taking that plea in the suit which was pending in the court of the District Judge of Banaras and that, on the other hand, if the sanction of the Advocate General was not void and the plea relating to it could not be taken by him in the suit the order of the Advocate General could not be vacated by this court in exercise of the powers vested in this Court under Article 226 of the Constitution because this Court can issue a writ only if the order be void.
(3.) IN this appeal it has been urged that the reason given by the learned single Judge for rejecting the petition of the appellant was not sound in law. As we have, on hearing counsel, come to the conclusion that even on the merits, there is no force in the appeal, we have not considered it necessary to examine the validity of the reasoning of the learned single Judge. Two points have been urged before us, first that under Section 92, Civil P. C. the Advocate general in giving his consent acts quasi-judicially and is, therefore, bound to make an enquiry after giving an opportunity to the parties affected by his consent and is also bound to act upon the materials produced before him as a result of the enquiry; and secondly that, in the present case, the Advocate General's order was void, inasmuch as there was no material before him to show that the applicants asking for his consent had any interest in the trust in respect of which the suit was sought to be filed.;