Uttarakhand High Court
Narendra Kumar vs State Of Uttarakhand And Others on 30 May, 2019
Equivalent citations: AIRONLINE 2019 UTR 98
Author: N.S. Dhanik
Bench: Ramesh Ranganathan, N.S. Dhanik
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (PIL) No. 68 of 2019
Narendra Kumar ...Petitioner
Vs.
State of Uttarakhand and others ...Respondents
Mr. Ayush Negi and Mr. Amit Kapri, learned counsel for the petitioner.
Mr. Pradeep Joshi, learned Standing Counsel for the State of Uttarakhand-
respondents 1 to 3.
Dated: 30th May, 2019
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble N.S. Dhanik, J.
Ramesh Ranganathan, C.J. (Oral) Heard Mr. Ayush Negi, learned counsel for the petitioner and Mr. Pradeep Joshi, learned Standing Counsel for the State Government and, with their consent, the Writ Petition is disposed of at the stage of admission.
2. The petitioner has invoked the public interest jurisdiction of this Court seeking a mandamus directing the first respondent to constitute a committee for management/trust of the affairs of the Purnagiri Temple; a mandamus directing the first respondent to prepare a list of important temples in terms of the order passed in Writ Petition (PIL) No. 151 of 2015 dated 20.06.2018; and a mandamus directing the first respondent to appoint Commissioners in such important temples, where till date no management committee is appointed by the first respondent.
3. Reliance is placed by the petitioner on three judgments. The first is that of a Division Bench of this Court in, In Re In the matter of 'Constituting a Trust / Board at the Jageshwar Dham, (Jyotirlinga) Almora Vs. State of Uttarakhand and others (order in Writ Petition (PIL) No. 64 of 2012 dated 12.07.2013), whereby certain directions were issued regarding constitution of a Committee of 2 Management for the Jageshwar Dham (Jyotirlinga) at Almora. The second judgment, on which reliance is placed by the petitioner, is that of another Division Bench of this Court, in Anjali Bhargava Vs. State of Uttarakhand and others (order in Writ Petition (PIL) No. 151 of 2015 dated 20.06.2018), whereby the Division Bench had made suggestions/recommendations to the State Government to frame suitable legislation for proper functioning of Hindu Public Religious Institutions and Charitable Endowments; and had directed the State Government to prepare a list of all the public temples throughout the State of Uttarakhand to bring them within the Schedule. The Division Bench had opined that the State Government was expected to give respect and honor to the suggestions made by the Court.
4. The third order, on which reliance is placed by the petitioner, is the interlocutory order passed by the Supreme Court, in Mrinalini Padhi Vs. Union of India (order in Writ Petition (Civil) No. 649 of 2018 dated 05.07.2018), whereby certain interim directions were issued to Shri Jagannath Temple (Puri). In the said interlocutory order the Supreme Court referred to Section 92 of the Code of Civil Procedure as also to Entry 28 of List III of the Seventh Schedule. Entry 28 of the concurrent list relates to charities and charitable institutions, charitable and religious endowments and religious institutions.
5. Power is conferred, both on Parliament and the State Legislatures, under Article 246 of the Constitution of India read with Entry 28 of List III of the Seventh Schedule, to make laws with respect to religious endowments and religious institutions. In the absence of any legislation (plenary or subordinate), power is also conferred on the Executive, under Article 162 of the Constitution of India, to issue administrative/executive instructions. Under our Constitutional scheme, Parliament and the State Legislatures exercise sovereign power to enact laws, and no outside power or authority can issue a direction to enact a particular piece of legislation. (State of J & K Vs. 3 A.R. Zakki : 1992 (1) SCC 548; Suresh Seth Vs. Commr., Indore Municipal Corporation : (2005) 13 SCC 287; Supreme Court Employees Welfare Association Vs. Union of India : AIR 1990 SC 334 and Mangalam Organics Ltd. Vs. Union of India : (2017) 7 SCC 221). The judiciary, one among the three branches of the State, is co-equal to the other two branches i.e. the executive and the legislature. Each has specified and enumerated constitutional powers. The judiciary is assigned the function of ensuring that executive actions accord with the law, and that laws and executive decisions accord with the Constitution. (State of Himachal Pradesh and Ors. Vs. Satpal Saini : (2017) 11 SCC 195).
6. Legislative power is exercised by the legislature directly or, subject to certain conditions, may be exercised by some other authority on such a power being delegated to them. But exercise of that power, whether by the legislature or by its delegate, is an exercise of a legislative power. The fact that the power was delegated to the executive does not convert that power into an executive or administrative power. No court can issue a mandate to a legislature to enact a particular law. Similarly no court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact. (Supreme Court Employees' Welfare Association Vs. Union of India : AIR 1990 SC 334; State of J & K Vs. A.R. Zakki : 1992 (1) SCC 548; State of Andhra Pradesh Vs. T. Gopalakrishna Murthi and Ors. : (1976) 1 SCR 1008; Mangalam Organics Ltd. Vs. Union of India : (2017) 7 SCC 221 and Narinder Chand Hem Raj Vs. Lt. Governor, Administrator, Union Territory Himachal Pradesh : (1972) 1 SCR 940). While it has the power to strike down a law on the ground of want of authority, this Court would not sit in appeal over the policy of Parliament or the State Legislature in enacting a law. (Rusom Cavasiee Cooper Vs. Union of India : (1970) 1 SCC 248). Just as it cannot direct a legislature to enact a particular law, (Supreme Court Employees' Welfare Association Vs. Union of India : AIR 1990 SC 334), the High Court, 4 under Article 226 of the Constitution of India, cannot direct the Executive to exercise power by way of subordinate Legislation, pursuant to the power delegated by the Legislature to enact a law, in a particular manner. (Indian Soaps and Toiletries Makers Association Vs. Ozair Husain and Ors. : (2013) 3 SCC 641).
7. The executive authority of the State must be held to be within its competence to frame a policy for the administration of the State. (M.P. Oil Extraction and anr. Vs. State of M.P. and Ors. : (1997) 7 SCC
592). As the duty to formulate policies is entrusted to the executive, which is accountable to the legislature, the Court would not direct the executive to adopt a particular policy or the legislature to convert it into enacted law. (State of Himachal Pradesh and Ors. Vs. Satpal Saini : (2017) 11 SCC 195). The exercise of making policy must be left to the discretion of the executive and legislative authorities. The court is called upon to consider the validity of a public policy only when a challenge is made that such policy decision infringes the fundamental rights guaranteed by the Constitution of India or any other statutory right. (Premium Granites Vs. State of Tamil Nadu : (1994) 2 SCC 691 and Census Commissioner and Ors. Vs. R. Krishnamurthy : (2015) 2 SCC 796).
8. It is not within the domain of the Court to legislate. The Courts interpret the law, and have the jurisdiction to declare the law unconstitutional. But, the courts are not to plunge into policy making by adding something to the policy by issuing a writ of mandamus. (Census Commissioner and Ors. v. R. Krishnamurthy : . (2015) 2 SCC 796 and Mangalam Organics Ltd. Vs. Union of India : (2017) 7 SCC 221). Just as this Court would not issue a mandamus to the Legislature to make a law, or to the Rule making authority to frame Rules, it would also be loathe to issue a mandamus to the Executive to exercise its executive powers in a particular manner.
59. The suggestions given by the Division Bench of this Court, in Anjali Bhargava Vs. State of Uttarakhand and others (order in Writ Petition (PIL) No. 151 of 2015 dated 20.06.2018), for the Legislature to make a law, is contrary to the law declared by the Supreme Court, in the judgments referred to hereinabove, that no mandamus can be issued to the Legislature to make a law. The power conferred on the Supreme Court, under Article 142 of the Constitution of India to do complete justice, is not available to be exercised by the High Court under Article 226 of the Constitution of India. The interim directions issued by the Supreme Court, with respect to Shri Jagannath Temple (Puri), is not a declaration of law binding on the High Court under Article 141 of the Constitution of India. Reliance placed on the interlocutory order of the Supreme Court, to seek a mandamus from this Court to the Legislature to legislate or to the Executive to pass executive orders, is misplaced.
10. While the power conferred on the High Court, under Article 226 of the Constitution of India, is part of the basic structure of the Constitution (L. Chandra Kumar Vs. Union of India : AIR 1997 SC 1125), and cannot be circumscribed or negated even by a constitutional amendment, let alone by legislation-plenary or subordinate, there are certain self-imposed limitations which the High Court adheres to in the exercise of such a power, which would include not issuing a mandamus to the Legislature to make laws, or to the Executive to frame an executive policy. That does not, however, mean that the State Government should not act in case a religious institution is found to be mis-managed. What sort of directions should be issued, to ensure that the secular activities of religious institutions are effectively discharged in larger public interest, is for the State Government to examine, and to take necessary action in accordance with law.
11. As the petitioner has already submitted a representation highlighting various illegalities in the manner in which the subject temple is being managed, to the first respondent on 30.04.2019, we 6 consider it appropriate to request the first respondent to examine the specific allegations made in the said representation, and take a considered decision in this regard, within a specified time frame. Mr. Pradeep Joshi, learned Standing Counsel for the State Government, would fairly state that a decision, on the representation of the petitioner, will be taken within a period of three months from the date of production of a certified copy of this order
12. Recording the submission of Mr. Pradeep Joshi, learned Standing Counsel, the writ petition is disposed of. No costs.
(N.S. Dhanik, J.) (Ramesh Ranganathan, C.J.)
30.05.2019 30.05.2019
Rahul