Karnataka High Court
Sri Prasanna Veeranjaneya Swamy Trust vs The Secretary To Government on 28 March, 2013
Author: Mohan .M. Shantanagoudar
Bench: Mohan .M. Shantanagoudar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28TH DAY OF MARCH 2013
BEFORE
THE HON'BLE MR. JUSTICE MOHAN .M. SHANTANAGOUDAR
WRIT PETITION Nos.14251-53 OF 2012 (GM-R/C)
BETWEEN:
Sri Prasanna Veeranjaneya
Swamy Trust, duly constituted
under the Indian Trusts Act
Having its Office at
4th Main Road, Mahalakshmi
Layout, Bangalore-560 086
Rep by its Secretary
Sri S.V. Krishna Murthy Rao
S/o late S. Venkata Rao
Aged 75 years
Residing at No.55, III Cross
II Stage, Gruhalakshmi Layout
Kamalanagar
Bangalore-560 079. ..Petitioner
(By Sri N. Ravindranath Kamath, Adv.,)
AND :
1. The Secretary to Government
Revenue Department (Mujarai)
Government of Karnataka
M.S. Building
2
Dr. Ambedkar Veedhi
Bangalore-560 001.
2. The Commissioner for
Hindu Religious & Charitable
Endowments in Karnataka
Mahadeshwar Bhavan
Chamarajpet
Bangalore-560 018.
3. The Deputy Commissioner
Bangalore Urban District
Visweswaraiah Towers
Bangalore-560 001.
4. The Special Deputy Commissioner
Bangalore Urban District &
Administrator of
Sri Prasanna Veeranjaneya Temple
Trust, Bangalore having his office
at K.G. Road, Bangalore.
5. Sri H.S. Puttakempanna
S/o late K.H. Shamegowda
Aged 75 years
R/a No.28/15, V Main
Mahalakshmi Layout
Bangalore-560 086.
6. Sri V. Gangadhara Rao
S/o V. Narayan
Aged 58 years
R/a No.830/95, 13th Cross
Mahalakshmi Layout
Bangalore-560 086.
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7. Sri H.M. Mallikarjuna Swamy
S/o late H.P. Mallanna
Aged 63 years
R/a No.255, III Main Road
Mahalakshmi Layout
Bangalore-560 086.
8. Sri A. Bylappa
S/o late Anjanappa K
Aged 69 years
R/a No.575, 3rd Cross
Mahalakshmi Layout
Bangalore-560 086.
9. The Executive Officer
Veeranjaneya Temple
Bangalore. ..Respondents
(By Sri E.S. Indiresh, HCGP., for R1, R2, R3, R9;
Sri N. Shankaranarayan Bhat, Adv., for R4;
Sri T. Seshagiri Rao, Adv., for R5 to R8)
These Writ Petitions are filed under Articles 226 and
227 of the Constitution of India praying to quash the order
of Government Notification dated 11.4.2012 issued by the
R1 vide Annexure-A and quash the Notification dated
13.4.2012 issued by R2 vide Annexure-B.
These Writ Petitions having been heard and reserved
for orders this day, the Court made the following :
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ORDER
Petitioner has sought for quashing the notification Annexure-A dated 11.4.2012 issued by the State Government under Sections 42 and 43 of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 ('the Act' for short). Further, direction is also sought for quashing the order/direction Annexure-B dated 13.4.2012 by which the Commissioner for Hindu Religious & Charitable Endowments in Karnataka has directed the jurisdictional Deputy Commissioner, Bangalore to take over the management of the petitioner - institution with immediate effect.
2. Sri Prasanna Veeranjaneya Swamy Temple was established in the year 1970 at Mahalakshmi lay-out, Bangalore. The idol of Lord Anjaneya is carved out on a single natural stone. Large number of devotees are worshipping the deity. The temple is situated at a height of 5 about 30 feet above from the ground level. The idols of Lord Ganesha, Lord Rama, Goddess Sita, Goddess Lakshmi are also installed in Sri Prasanna Veeranjaneya Swamy temple premises and they are also being worshipped by the devotees. According to the petitioner, Sri Prasanna Veeranjaneya Swamy Trust is registered in the year 1981 and there are no allegations as to the mismanagement of the temple.
Petitioner alleges that the temple is taken over by the State Government by notifying the said institution under the provisions of Sections 42 and 43 of the Act without notice to the petitioner. The notification dated 11.4.2012 vide Annexure-A is issued under Section-23 read with Sections 42 and 43 of the Act. Consequently, the 2nd respondent issued direction as per Annexure-B dated 13.4.2012 to the Deputy Commissioner to take over the administration of the temple under Sections 42 and 43 of the Act. Accordingly, the 2nd respondent as per the order 6 dated 18.4.2012 has appointed Special Deputy Commissioner, Bangalore as Administrator to the temple. According to the petitioner, the entire act of the State Government is contrary to the provisions of the Act and the Rules framed thereunder.
4. Sri Kamath, learned advocate appearing on behalf of the petitioner submits that action of the 1st and 2nd respondents in taking action under Sections 42 and 43 of the Act pending approval of Rajya Dharmika Parishat is contrary to the provisions of the Act ; the procedure as contemplated under Section-43 of the Act is not followed by Respondents 1 and 2; Section 20-A of the Act deals with powers and functions of Rajya Dharmika Parishat and as per Section 20-A(2)(v), the State Government shall issue notification only on the recommendation and approval of the Rajya Dharmika Parishat; in the matter on hand, the State Government has exercised powers pending approval of the Rajya Dharmika Parishat; therefore the action taken 7 by the State Government is liable to be quashed; Though there is no misappropriation and though the temple is properly administered; its income and expenditure is duly appropriated, the 1st respondent without giving an opportunity to the petitioner issued the impugned notification. The sum and substance of the case of the petitioner is that the impugned notification and order are not sustainable and the principles of natural justice is not followed and the same are issued without giving adequate opportunity to the petitioner. According to Sri Kamath, notices are issued only either by the Deputy Commissioner or by the Assistant Commissioner Mujarai Department calling upon the petitioner to file the statement of objections; that the Commissioner (2nd respondent) who is the jurisdictional authority has not issued notice to the petitioner and consequently has not given opportunity to the petitioner to file statement of objections; no enquiry is conducted pursuant to the direction of the Commissioner as 8 contemplated under Section-43(6) of the Act, prior to submitting of the report by the Commissioner to the State Government; Rajya Dharmika Parishat is ceased with the matter and during the subsistence of the matter before the Rajya Dharmika Parishat, the impugned notifications are passed by Respondents 1 and 2; that the matter should have been referred to Nyadhikarana as contemplated under Section 20-A(2)(iv) of the Act.
The writ petition is opposed by the learned Government Advocate as well as the advocates appearing on behalf of private respondents. Learned counsel for the respondents support the impugned order. Learned Government Advocate has made available the file maintained by the State Government - Commissioner for Hindu Religious & Charitable Endowments (2nd respondent).
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5. It is relevant to note that the land in which the temple is situated belongs to Bangalore Development Authority. The land is not allotted as per law in favour of the petitioner - trust for construction of the temple. However, the records reveal that the permission is accorded by the officials of the City Corporation to construct the temple over the premises in question. Thus the property in law continues with the BDA/Corporation.
6. The submission of Sri Kamath, learned advocate appearing on behalf of the petitioner that the matter should have been referred to Nyadhikarana cannot be accepted. Provisions of Section 20-A of the Act deal with the powers and functions of the Rajya Dharmika Parishat. Under Section 20-A(2)(iv) the Rajya Dharmika Parishat for the purpose of resolving any dispute as provided under section 20-A, may constitute Nyayadhikarana with the Judicial Member of the Parishat and the Commissioner as its members. In the matter on hand, there is no dispute which 10 arises under Section 20-A of the Act and consequently, there is no need to constitute Nyayadhikarana at all.
7. Chapter-VIII of the Act deals with declared institutions. Under Section-42 of the Act, the State Government may, where it is satisfied on a report of the Commissioner under Section 43 of the Act or otherwise that any Hindu Religious Institution, whether or not governed by a settled scheme, is being mismanaged, declare such institution to be subject to the regulation of Chapter-VIII of the Act. It also specifies that no such declaration shall be made without following the due procedure specified under Section-43 of the Act.
Section-43 of the Act deals with the procedure to be followed before passing the final order in respect of declaration of the institution under the Act.
Sub-section (1) of section-43 discloses that where the Commissioner has reason to believe that a Hindu Religious 11 Institution whether or not governed by a settled scheme is being mismanaged and he is satisfied that in the interest of its administration, it is necessary to take proceedings under Chapter-VIII, he may, by notice published in the prescribed manner, call upon the Manager and all other persons having interest, to show cause why such institution should not be declared to be subject to the provisions of Chapter-VIII.
Sub-section (2) of Section-43 of the Act mandates that such notice shall state the reasons for the action proposed and shall give minimum of one month time from the date of issue of the notice, for showing such cause. The Manager of the institution or any person having interest may file his statement of objections, if any under sub- section (3) of Section-43 of the Act. Where no objections are received within the time specified or extended (time may be extended for filing objections up to 45 days under sub-section (4) of Section-43), the State Government may, on receipt of the report from the Commissioner declare the 12 Hindu Religious Institution to be subject to the provisions of Chapter-VIII of the Act by issuing the notification published in the official gazette as per sub-section (5) of Section-43 of the Act. However, if objections are received within the time specified, the Commissioner may authorize any officer subordinate to him to hold an enquiry into the objections under sub-section (6) of Section-43 of the Act. Such officer, after giving the Manager or any person having interest in the institution, an opportunity of being heard submit his enquiry report to the Commissioner as to whether or not the institution should be declared to be subject to the provisions of Chapter-VIII of the Act. Under sub-section (7) of section-43 of the Act, if the Commissioner decides that the institution should be declared to be subject to the provisions of Chapter-VIII, he shall make a report to that effect to the State Government. Thereafter the State Government may by issuing 13 notification declare such Hindu Religious Institution to be subject to the provisions of Chapter-VIII.
8. From the aforementioned provisions, it is clear that the Commissioner shall call upon the Manager of the Institution or any person interested in the institution to prefer the statement of objections. If the objections are received within the time, the Commissioner may authorize any officer subordinate to him to hold enquiry into the objections in the prescribed manner. After considering the enquiry report submitted by the Enquiry Officer so appointed, if the Commissioner decides that the institution should be declared, he will report to that effect to the State Government, which may by notification declare such Hindu Religious Institution to be subject to the provisions of Chapter-VIII.
9. According to Mr. Kamath, learned advocate appearing on behalf of the petitioner, the aforementioned 14 procedure is not followed. In that regard, I perused the records maintained by the department.
The records reveal that number of allegations are made by the public and devotees at large before the Commissioner for Hindu Religious & Charitable Endowments against the management of the petitioner - trust. Serious allegations such as misappropriation, misuse of funds, non- maintaining of accounts in proper manner, misutilization of the property meant for the temple etc., are made. In that regard, number of notices were issued from 11.10.2004 onwards. Notice came to be issued by the Deputy Commissioner, Bangalore as far back as on 1.12.2005 itself calling upon the petitioner to have his say in the matter before the officer appointed by the Deputy Commissioner to conduct enquiry relating to accounts etc., Such notices were issued repeatedly on 29.6.2007, 16.7.2007, 25.4.2009, 19.6.2009 and 15.7.2009 either by the Deputy Commissioner or by the Assistant Commissioner 15 and number of enquiries were held from time to time at the level of Assistant Commissioner and Deputy Commissioner. Ultimately, a report dated 22.6.2010 came to be submitted by the Assistant Commissioner of Charitable Endowments to the Commissioner recommending for taking over the management of the temple. In the said report, number of illegalities committed by the management of the trust are mentioned. The Deputy Commissioner after enquiry has also submitted one more report on 18.11.2010 to the Commissioner recommending for declaring the petitioner institution to be subject to the provisions of Chapter-VIII.
10. Finally the notice came to be issued by the 2nd respondent on 10.12.2010 to the petitioner calling upon the petitioner to show cause as to why petitioner Trust should not be declared to be subject to the provisions of Chapter- VIII. The said notice testifies the irregularities/illegalities committed by the management of the petitioner - trust. Thus it is clear that the notice came to issued as per 16 Section 43(1) of the Act. As aforementioned, such notice states the reasons as well as the action proposed also. One month time was granted to the petitioner as required under sub-section (2) of Section-43 of the Act. The petitioner has filed statement of objections on 29.12.2010 i.e. within the time stipulated by the 2nd respondent. Thereafter one more notice was issued by the 2nd respondent on 5.3.2011 calling upon the petitioner to appear before the Commissioner with all relevant records. Notices of similar nature were issued on 17.3.2011, 25.3.2011 and 8.4.2011 fixing the dates of hearing. The petitioner has submitted one more reply on 11.4.2011 denying all the allegations. Thus it is clear that the petitioner is given adequate opportunity to furnish its reply.
11. Under sub-section (6) of Section-43 as aforementioned, if the objections are received within the time stipulated, the Commissioner may authorize any officer subordinate to him to enquire into the allegations. 17 But in the matter on hand, neither Commissioner has conducted enquiry nor has he appointed any officer subordinate to him to conduct enquiry after receipt of the objections.
12. On getting instructions from the concerned, and on verification of the records, the learned Government Advocate fairly submits that there is nothing on record to show that the 2nd respondent - Commissioner has either himself enquired or has he authorized any officer subordinate to him to hold enquiry into the objections filed by the petitioner - trust as contemplated under Section 43(6) of the Act.
However, the records reveal that the enquiry is conducted by the Special Deputy Commissioner based on the direction of the Commissioner in different context and not strictly under Section-43(6) of the Act. In my 18 considered opinion, the 2nd respondent - Commissioner should have either appointed Enquiry Officer subordinate to him to conduct enquiry or he himself should have conducted enquiry as contemplated under Section-43(6) of the Act and only after getting the enquiry report duly submitted by such Enquiry Officer, further proceedings should have taken place under sub-sections (7) and (8) of Section-43 of the Act. In the matter on hand, such procedure is not followed. No officer subordinate to the 2nd respondent - Commissioner was duly appointed by the 2nd respondent for holding enquiry as contemplated under section-43(6) of the Act and therefore the petitioner did not have opportunity to contest his case before the Enquiry Officer. The Commissioner merely on the basis of other enquiry reports conducted by either the Deputy Commissioner or the Assistant Commissioner based on the letter of the State Government or based on the representations of the public at large, has proceeded to 19 pass the impugned order of taking over the management of the temple. Since the mandatory procedure prescribed under Section 43(6) of the Act is not followed by the Commissioner, further proceedings subsequent to stage of Section-43(5) of the Act are vitiated. Thus now, the only course open for the Commissioner is to follow the procedure as contemplated under Section-43(6) of the Act. Accordingly, impugned orders Annexures - A and B are quashed.
13. Since the Administrator is appointed after passing the Notification and the order as per Annexures-A and B respectively and as the Administrator is already managing the affairs of the temple since about eight to nine months, this Court does not wish to disturb the said position during the interregnum. Interest of justice will be met if the Administrator continues to function till the Respondent Nos.1 and 2 take final decision in the matter after following 20 due procedure. Hence, it is expedient to direct Respondent Nos.1 and 2 to take action at an early date.
14. In view of the above, Respondent Nos.1 and 2 are directed to take action as per law and on merits, on or before 31st August 2013. Till then, the Administrator shall continue to manage the affairs of the temple.
Since the Court Commissioner and Assistant Court Commissioner have already carried out the works assigned to them by the Court, they need not continue as Court Commissioners and are discharged.
The Administrator in-charge of management of temple shall take decision depending on facts and circumstances to open hundis, as and when they become full. He shall get the hundi amount/offerings counted and deposited in transparent manner with due notice to the petitioner and private respondents. The Administrator shall maintain 21 accounts as per law. The staff of the temple including the Archaks shall not be disturbed until final orders of Respondent Nos.1 and 2.
The Writ Petitions are disposed of accordingly.
Sd/-
JUDGE Gss/nk-