Karnataka High Court
Havyak Vidyavardhak Sangha vs The State Of Karnataka on 25 November, 2023
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NC: 2023:KHC-D:13766-DB
WA No. 100208 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
WRIT APPEAL NO. 100208 OF 2021 (GM-RES)
Between:
Havyak Vidyavardhaka Sangha
Murur Road, Kumta ®,
Uttar Kannada District-581332,
Represented by its Secretary.
...Appellant
(By Sri. A.P.Hegde Janmane, Advocate)
And:
1. The State of Karnataka
Represented by Revenue Secretary,
Vikasa Soudha,
Digitally
signed by
JAGADISH Bengaluru-560001.
JAGADISH T R
TR Date:
2023.12.12
14:33:24
+0530 2. The Deputy Commissioner
Uttar Kannada, Karwar-581301.
3. The District Registrar and Registrar of Societies
M.G. Road, Karwar,
Uttar Kannada District-581301.
4. Ganapati Manjunath Hegde
Aged about 50 years,
Agriculturist,
R/o. Murur Cross, Kumta,
Uttar Kannada District-581332.
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NC: 2023:KHC-D:13766-DB
WA No. 100208 of 2021
5. Subrahmanya Ramachandra Hegde
Aged about 57 years,
Occ: Agriculturist,
At: Kandavalli, Post: Kallabbe,
Taluk Kumta, U.K.District-581362.
6. Timmanna Vishweshwar Hegde
Aged about 65 years,
Agriculturist,
At: Hollimane, Post: Kallabbe,
Taluk: Kumta, U.K. District-581362.
...Respondents
(By Smt. Kirtilata P.Patil, HCGP for R1-R3;
Sri. Ganapati Hegde, Senior Counsel for
Sri. S.V.Yaji, Advocate for C/R4 and R6;
Sri. G.K.Hiregoudar for R4, R5 and R6)
This Writ Appeal is filed under section 4 of Karnataka
High Court Act, 1961, praying to set-aside the order of the
Learned Single Judge dated 03.08.2021 in WP.
No.100358/2016(GM-RES) and to dismiss the writ petition by
allowing this appeal with costs and etc.
This Writ Appeal pertaining to Dharwad Bench having
been heard & reserved on 05.10.2023, and coming on for
pronouncement through video conferencing this day,
Sreenivas Harish Kumar J., sitting at Principal Bench,
Bengaluru pronounced the following:
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NC: 2023:KHC-D:13766-DB
WA No. 100208 of 2021
JUDGMENT
The order dated 03.08.2021 in W.P.No.100358/2016 is challenged in this writ appeal. The events that lead to this writ appeal being filed are as below :
2. The appellant is Havyak Vidya Vardhaka Sangha ('Sangha' for short), the fourth respondent in the writ petition. Respondents 4 to 6 are the writ petitioners ('the petitioners' for short). The petitioners are the members of the Sangha, a charitable institution at Kumta, Uttara Kannada District. The Sangha came into existence on 15.08.1942 obtaining registration under the Registration Act, 1860. Since Kumta was in erstwhile Bombay province, after coming into force of Bombay Public Trust Act, 1950 ('the Act' for short), the Sangha ceased to be a society and became a trust. In accordance with the provisions of the Act, the Sangha started submitting the report about its activities, accounts and Annual General Body to the Assistant Charity Commissioner at Belagavi. -4-
NC: 2023:KHC-D:13766-DB WA No. 100208 of 2021 With effect from 01.05.2003, the Karnataka Hindu Religious Institutions and Charitable Endowments Act ('Endowments Act' for short) was given into force, and as a consequence, the Act stood repealed. The writ petitioners stated that after the repeal of the Act, the Sangha was to be considered as a society as it stood earlier before the Act came into force, and therefore it should have obtained registration under the Societies Registration Act, 1960.
3. In this background, it is stated that the members of the Sangha raised objection with regard to its status and legality of its functions. But the president of the Sangha did not care for the objection; he formed his own group and started mismanaging the funds of the Sangha. Some people belonging to Havyak Community and who were eligible to become members of the Sangha made applications seeking membership, but their applications were not considered. The members of the community therefore submitted a representation to the Deputy -5- NC: 2023:KHC-D:13766-DB WA No. 100208 of 2021 Commissioner and the District Registrar as per Annexures- E and E1 respectively, seeking enquiry into irregularities in the administration of the Sangha and appointment of an Administrator. Alleging that the Deputy Commissioner and the District Registrar failed to initiate action, the writ petitioners filed writ petition and sought a writ of mandamus to the Deputy Commissioner and the District Registrar to initiate legal action pursuant to representations at Annexures-E and E1, and appoint an administrator or a receiver for the Sangha.
4. In the statement of objections filed by the Sangha to the writ petition, it was mainly contended that after repeal of the Act, some of the trusts registered under the Act sought clarification from the Government as to their status and thereafter the Government issued a gazette notification dated 26.03.2004 clarifying that such trusts were governed by Public and Religious Charitable Trust Act, 1920. The Sangha also contended that when the District Registrar issued a notice to it, a suitable reply was -6- NC: 2023:KHC-D:13766-DB WA No. 100208 of 2021 given objecting to the jurisdiction of the Deputy Commissioner and the District Registrar to initiate any enquiry pursuant to representations given by some of the members of the Sangha. Of course, the Sangha refuted the allegations of mismanagement and misappropriations of the funds.
5. The writ court disposed of the writ petition giving a direction to respondents 1 to 3 in the writ petition to consider the representations at Annexures-E and E1. Aggrieved by this order, the Sangha has preferred this writ appeal.
6. We have heard the argument of Sri. A.P.Hegde Janmane, learned counsel for the appellant-Sangha, Sri. Ganapati Hegde, learned senior counsel appearing for respondents 4 and 6 and Smt. Kirtilata P Patil, HCGP, for respondents 1 to 3/state.
7. The argument of Sri. A.P.Hegde was that a writ of mandamus can be issued to an authority who is obligated to perform a statutory duty or function. If an authority to -7- NC: 2023:KHC-D:13766-DB WA No. 100208 of 2021 whom a writ of mandamus is sought has no obligation under a statute or law to do something, no purpose would be served even if mandamus is issued. He further submitted that the Sangha was registered under the Societies Registration Act, 1860, and it became a trust after coming into being of the Bombay Public Trust Act. After the repeal of the Act, since the Sangha is only a charitable institution, by virtue of Government Order dated 19.03.2004 published in Karnataka Special Gazette dated 26.03.2004 the provisions of Charitable and Religious Trust Act, 1920 were made applicable. For this reason the District Registrar has no control over the Sangha. If at all the writ petitioners have any grievance in regard to management of Sangha, they must approach the District Court in accordance with sections 3 to 7 of Charitable and Religious Trust Act, 1920. This being the legal position, the impugned order is not sustainable.
8. Sri. Ganapati Hegde, learned senior counsel, countered the argument of A.P.Hegde Janmane by -8- NC: 2023:KHC-D:13766-DB WA No. 100208 of 2021 submitting that, in Writ Petition No.26221/1991, this court struck down the Bombay Public Trust Act as it applied to the State of Karnataka. The order in writ petition was questioned in Writ Appeal Nos.429 and 489/1998. The writ appeals were dismissed by the Division Bench by judgment dated 30.07.2003. But while dismissing the writ appeals, the Division Bench made an observation that the striking down would have prospective effect. This observation could not have been made in as much as the Act was enacted after the Constitution of India came into force. Since the Act was struck down as violative of Article 14 of the Constitution, the striking down order had retrospective operation. Therefore the provisions of the Act never applied to Sangha, and it continued as an institution registered under the Societies Registration Act, and thereby the Deputy Commissioner and the District Registrar are the competent authorities to whom writ of mandamus can be issued. He argued that the impugned order is therefore sustainable.
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9. We have considered the points of arguments raised by learned counsel. We are of the following opinion :
There is no denial of the proposition that the public or statutory authority against whom mandamus is sought must have an obligation to perform something under law or a statute. The question here is whether the Deputy Commissioner and the District Registrar are the proper authorities who can be compelled under law applicable to Sangha to consider the representations at Annexures-E and E1 made by the writ petitioners.
10. There is no dispute about origination of Sangha on 15.08.1942 under the Societies Registration Act, 1860 and its obtaining registration as a trust under the Act which was the law applicable to Sangha till its repeal by virtue of the Endowments Act, which was given into effect from 01.05.2003. Even before the Endowments Act came into force, the Act was struck down by order dated 03.12.1997 in W.P.No.26221/1991. But in Writ Appeal
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NC: 2023:KHC-D:13766-DB WA No. 100208 of 2021 Nos.429 and 489/1998, the Co-ordinate Bench of this court made it clear that the stricking down of the Act in regard to its application to the State of Karnataka would have prospective effect. This clarification was given taking note of the fact that the Act was struck down not for the reason of legislative incompetence to make a law, but its continued application in the State of Karnataka violated Article 14 of the Constitution. Sri. Ganapati Hegde, learned senior counsel, has garnered support for his argument from two judgments of the Supreme Court in the cases of State of Manipur and Others Vs. Surjakumar Okram and Others [(2022 SCC Online SC
130)] and CBI Vs. R.R.Kishore [(2023 SCC Online SC 1146)]. In Surjakumar, it is held, "22. Where a statute is adjudged to be unconstitutional, it is as if it had never been. Rights cannot be built up under it; contracts which depend upon it for their consideration are void; it constitutes a protection to no one who has acted under it and no one can be punished for having refused obedience to it before the
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NC: 2023:KHC-D:13766-DB WA No. 100208 of 2021 decision was made. Field, J. in Norton v. Shelby County , observed that "an unconstitutional act is not law, it confers no rights, it imposes no duties, it affords no protection, it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed".
11. In R.R.Kishore, the ultimate conclusion is "96. From the above discussion, it is crystal clear that once a law is declared to be unconstitutional, being violative of Part-III of the Constitution, then it would be held to be void ab initio, still born, unenforceable and non est in view of Article 13(2) of the Constitution and its interpretation by authoritative pronouncements. Thus, the declaration made by the Constitution Bench in the case of Subramanian Swamy (supra) will have retrospective operation. Section 6A of the DSPE Act is held to be not in force from the date of its insertion i.e. 11.09.2003".
12. The authoritative pronouncements of the Supreme Court make it clear that the declaration of law as
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NC: 2023:KHC-D:13766-DB WA No. 100208 of 2021 unconstitutional for any reason for want of legislative competence or for being violative of fundamental right, has the effect of nullifying the law from its inception. But, if the actual reason for striking down the Act is seen, it was for the reason that the continued application of the Act in the State of Karnataka with passage of time was found to be unconstitutional in view of differential treatment to similarly placed institutions in other parts of Karnataka. And by virtue of section 78 of the Endowments Act, The Bombay Public Trust Act was repealed. Because of repeal, the legal status of the Sangha emerged, and this was clarified by the Government in its order dated 19.3.2004 gazetted on 26.3.2004. The order states that the institutions which were registered under the Act and to which the Endowments Act was not applicable would be governed by Charitable and Religious Trust Act, 1920. Applicability of Charitable and Religious Act, 1920 was not disputed by Sri. Ganapati Hegde while arguing. Since Sangha is only a charitable institution, the Endowments Act is not
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NC: 2023:KHC-D:13766-DB WA No. 100208 of 2021 applicable to it and therefore Charitable and Religious Act, 1920 was made applicable. According to section 3 of the said Act, the court gets jurisdiction to address the grievances like the one expressed by the writ petitioners. Neither the Deputy Commissioner nor the District Registrar has any statutory obligation. The writ court could have decided this legal issue instead of leaving it open to be decided by the Deputy Commissioner and the District Registrar who have no statutory obligation. In this view, writ appeal succeeds, the order impugned is set aside. Writ petition is dismissed. There is no order as to costs.
Sd/-
JUDGE Sd/-
JUDGE SD List No.: 19 Sl No.: 1