Karnataka High Court
Sri Samsthana Mahabaleshwara Devaru vs Secretary on 10 August, 2018
Bench: B.V.Nagarathna, Aravind Kumar
-1-
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF AUGUST, 2018
PRESENT
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
WRIT PETITION No.30609/2008 (GM-R/C) C/W W.A.Nos.1477/2008 &
1286-1310/2011 (GM-R/C), W.P.Nos.11734/2008 (GM-R/C-PIL),
12612/2008 (GM-R/C-PIL), 14097/2008 (GM-R/C-PIL),
31026/2008 (GM-R/C), W.A.No.6121/2010 (GM-R/C),
W.P.No.60096/2010 (GM-R/C)
IN W.P.No.30609/2008
BETWEEN:
1. SRI SAMSTHANA MAHABALESHWARA DEVARU,
(A REGISTERED TRUST UNDER
THE BOMBAY PUBLIC TRUST ACT, 1950
GOKARNA, UTTARA KANNADA DISTRICT,
REPRESENTED BY ITS TRUSTEE
SRI BALACHANDRA VIGNESHWARA DIXIT.
2. SRI BALACHANDRA VIGNESHWARA DIXIT,
S/O. LATE VIGNESHWARA DIXIT,
AGE: 57 YEARS, R/O. GOKARNA,
UTTARA KANNADA DISTRICT. ... PETITIONERS
(BY SRI S.S. NAGANAND, SENIOR ADVOCATE A/W SRI ARJUN RAO,
AND MS. MAITHREYI BHAT, ADVOCATE)
AND:
1. SECRETARY,
REVENUE DEPARTMENT (ENDOWMENT)
GOVERNMENT OF KARNATAKA,
M.S. BUILDING, BANGALORE.
2. THE STATE OF KARNATAKA,
BY ITS CHIEF SECRETARY,
VIDHANA SOUDHA,
BANGALORE.
-2-
3. COMMISSIONER FOR RELIGIOUS AND
CHARITABLE ENDOWMENT
MALE MAHADESHWARA BHAVAN,
CHAMARAJA PETE, BANGALORE.
4. DEPUTY COMMISSIONER,
KARWAR,
DISTRICT: UTTARA KANNADA.
5. THE ASSISTANT COMMISSIONER,
KUMTA SUB-DIVISION,
KUMTA,
DISTRICT: UTTARA KANNADA.
6. SRI RAMACHNADRAPURA MUTT,
HOSANAGAR, SHIMOGGA DISTRICT,
REPRESENTED BY ITS PRESENT SWAMIJEE
SRI RAGHAVESHWARA
BHARATI SWAMIJEE.
7. SRIKSHETRA GOKARNA UPADIVANT
MANDAL (REGD.)
GOKARNA - 581 326,
TALUK: KUMTA,
DISTRICT: UTTARA KANNADA,
REP. BY ITS SECRETARY.
(AMENDED V.C.O. DATED
12/01/2009 AS RESPONDENT NO.7)
8. KOOTA MAHAJAGGATHU (R) SALIGRAMA,
KUNDAPURA TALUK,
UDUPI DISTRICT,
REPRESENTED BY ITS SECRETARY,
SRI SADANANDA RAMAKRISHNA UPADHYA,
MAJOR,
R/O. GOKARNA, KUMTA TALUK,
UTTARA KANNADA DISTRICT.
(IMPLEADED V.C.O. DATED
17/02/2009 AS RESPONDENT NO.8) ... RESPONDENTS
(BY MR. MADHUSUDHAN R. NAIK, ADVOCATE GENERAL A/W MR.
VIVEK HOLLA, GOVT. PLEADER FOR R-1 TO R-5; SRI A.G.HOLLA
SENIOR ADVOCATE, MR. K.G. RAGHAVAN, SENIOR ADVOCATE A/W
MR. GANAPATHI HEGDE, MR. P.N.MANMOHAN, MR. K. GOVINDA RAJ,
MR. ARUN SHYAM, MR. DINESH MURALIDHAR BHAT AND MS. A.R.
-3-
LAXMI, ADVOCATES FOR R-6; SRI G.N. NARASAMMANNAVAR,
ADVOCATE FOR R-7; SRI SHAMSUNDAR S. KARANTH, ADVOCATE FOR
R-8)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
GOVERNMENT ORDER NO.KAM.E.56 MU.A.B. 2008, BANGALORE
DATED 12/08/2008 ISSUED BY RESPONDENT NO.1 AT ANNEXURE-A
AND GRANT ANY OTHER RELIEF IN FAVOUR OF THE PETITIONER.
*****
IN W.A.Nos.1477/2008 & 1286-1310/2011
BETWEEN:
1. SRI VISHWANATH PHANIRAJ BHAT GOPI,
AGED 35 YEARS,
S/O. SRI PHANIRAJ BHAT GOPI,
LANDLORD AND ARCHAK,
RESIDING NEAR MAHABALESHWAR
TEMPLE, GOKARNA - 581 326
UTTARA KANNADA DISTRICT.
2. SRI GANAPATHI G. HIRE
AGED 30 YEARS,
S/O. SRI G. HIRE,
ARCHAK, GOKARNA - 581 326
KUMTA TALUK,
UTTARA KANNADA DISTRICT.
3. SRI PRASANNA KRISHNA JOGBHAT
S/O. KRISHNA JOGBHAT,
AGED 29 YEARS,
UPADHIVANTHA, VAMADEVA TEMPLE,
NAGABEEDI, GOKARNA - 581 326
UTTARA KANNADA DISTRICT.
4. SRI GAJANAN SAMBA DIXIT, MAJOR,
S/O. SRI SAMBA DIXIT,
UPADHIVANTHA,
R/O. AGNI SHARANAM,
GOKARNA - 581 326
UTTARA KANNADA DISTRICT.
5. SRI GANESH V. JOGLEKAR, MAJOR,
S/O. SRI V. JOGLEKAR,
ARCHAK,
-4-
RESIDING NEAR TEMPLE,
GOKARNA - 581 326.
6. SRI KRISHNAPPA,
AGED 38 YEARS,
S/O. NANJUNDE GOWDA,
THE BANGALORE BUSINESS CENTRE,
CF-2, NO.3/5, ARYA PLAZA,
BULL TEMPLE ROAD, CHAMARAJPET,
BANGALORE - 560 018.
7. SRI M. SUBRAMANIAN,
AGED 39 YEARS,
S/O. MUNISWAMY,
R/O. 2ND CROSS ROAD,
PRAGATHIPURA,
BANGALORE - 560 085.
8. SRI MUDDURAJA .M
AGED 30 YEARS,
S/O. SRI M. MUDDAIAH,
R/O. NO.100, C.T. BED,
III MAIN, 8TH CROSS,
B.S.K. III STAGE,
BANGALORE - 560 085.
9. SRI K.A. DINESH,
AGED 29 YEARS,
S/O. SRI ASHWATH,
R/O. NO.669, 5TH CROSS,
P.P. LAYOUT, BSK III STAGE,
BANGALORE - 560 085.
10. SRI R. RANGARAMA,
AGED 35 YEARS,
S/O. SRI RANGAPPA,
C/O. MASTI RANGA MANDIRA,
SHANKARMUTT ROAD,
SHANKARPURAM,
BANGALORE - 560 004.
11. SRI L.P. PADMANABHA,
AGED 67 YEARS,
S/O. SRI L.N. PUTTAIAH,
R/O. NO.7/8, SHANKARMUTT ROAD,
SHANKARAPURAM,
BANGALORE - 560 004.
-5-
12. SRI LAKSHMANA GOWDA,
AGED 65 YEARS,
S/O. SRI K.N. NEELAIAH,
R/O. NO.804, 7TH CROSS, 1ST A MAIN,
BSK 3RD STAGE, III BLOCK,
BANGALORE - 560 085.
13. SRI G. RANGAIAH SHETTY,
AGED 76 YEARS,
R/O. CHIKKANNA GARDEN,
SHANKARPURAM,
BANGALORE - 560 004.
14. SRI B. SURESH,
AGED 27 YEARS,
R/O. NO.19, CHIKKANNA GARDEN,
P.M.K. ROAD,
BANGALORE - 560 004.
15. SRI MANICKYAM,
AGED 49 YEARS,
S/O. SRI KUNHU,
R/O. J.P. NAGAR, 6TH PHASE,
PUTTENAHALLI MAIN ROAD,
BANGALORE - 560 078.
16. SRI JAGADISH GILDA,
AGED 52 YEARS,
R/O. BULL TEMPLE ROAD,
BANGALORE - 560 019.
17. SRI R. THIMMAIAH
AGED 39 YEARS,
S/O. SRI HANUMAIAH,
R/O. D.NO.23, 2ND CROSS,
WILSON GARDEN,
BANGALORE - 560 027.
18. SRI EASWAR,
AGED 45 YEARS,
S/O. SRI PUTTAPPA,
R/O. NO.71/2, JNANODAYA SCHOOL ROAD,
S.M. ROAD, SHANKARPURAM,
BANGALORE - 560 004.
19. SRI RAMANNA,
AGED 43 YEARS,
S/O. NINGANNA,
-6-
R/O. NO.814, 9TH 'A' MAIN,
SRINAGAR,
BANGALORE - 560 050.
20. SRI BELIAPPA,
AGED 45 YEARS,
S/O. NINGAIAH
R/O. NO.19, CHIKKANA GARDEN,
P.M.K. ROAD, SHANKAR GURU,
BANGALORE - 560 004.
21. SRI MAHADEVA,
AGED 50 YEARS,
S/O. LATE CHANNE GOWDA,
CHIKKANNA GARDEN,
R/O. P.M.K. ROAD, SHANKARPURAM,
BANGALORE - 560 004.
22. SRI VENKATARAM S.,
AGED 48 YEARS,
S/O. T.C. SOMA NAIDU,
NO.339, SINDHUNADI ROAD,
VRINDAVAN NAGAR,
PIPE LINE, SRINAGAR,
BANGALORE - 560 050.
23. SRI MAHADEVA M., MAJOR,
S/O. MADE GOWDA,
D.NO.23, 2ND CROSS,
2ND MAIN, AJAD NAGAR,
MYSORE ROAD,
BANGALORE - 560 026.
24. SRI K. SURESH,
AGED 40 YEARS,
S/O. KRISHNA NAIDU
NO.2, LAKSHMI LAYOUT,
RBI LAYOUT, 7TH PHASE,
J.P. NAGAR,
BANGALORE - 560 078.
25. SRI G.S. NAGARAJ,
AGED 40 YEARS,
S/O. SRI SUBRAMANI,
C/O. K. SURESH, NO.2,
LAKSHMI LAYOUT, OPP. RBI LAYOUT,
J.P. NAGAR 7TH PHASE,
-7-
BANGALORE - 560 078.
26. SRI G.S. SURYANARAYANA,
AGED 59 YEARS,
S/O. G. SRINIVASAMURTHY,
NO.5, III CROSS, VIT COLLEGE ROAD,
K.R. LAYOUT, J.P. NAGARA,
BANGALORE - 560 078. ... APPELLANTS
(BY SRI H. SUBRAMANYA JOIS, SENIOR ADVOCATE A/W MRS. B.S.
VIJAYALAKSHMI AND MR. K.C. SHANTHA KUMAR, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA,
REP. BY ITS PRINCIPAL SECRETARY,
REVENUE DEPARTMENT,
M.S. BUILDING, VIDHANA VEEDHI,
BANGALORE - 560 001.
2. THE COMMISSIONER FOR RELIGIOUS &
CHARITABLE ENDOWMENTS IN KARNATAKA,
ALUR VENKAT RAO ROAD,
CHAMRAJPET BANGALORE - 560 018.
3. THE DEPUTY COMMISSIONER,
UTTARA KANNADA DISTRICT,
KARWAR.
4. THE ASSISTANT COMMISSIONER,
RELIGIOUS & CHARITABLE ENDOWMENTS
DEPARTMENT, KUMTA,
UTTARA KANNADA DISTRICT.
5. THE TAHSILDAR,
KUMTA TALUK,
UTTARA KANNADA DISTRICT.
6. SRIKSHETRA GOKARNA UPADHIVANTHA
MANDALA (REGD.),
GOKARNA - 581 326,
KUMTA TALUK, UTTARA KANNADA DISTRICT,
REP. BY ITS SECRETARY/PRESIDENT.
7. SRI RAMACHANDRAPURA MUTT,
HANIYA POST, HOSANAGAR TALUK,
SHIMOGA DISTRICT AND HAVING ITS
ADMINISTRATIVE OFFICE AT
-8-
NO.2 A, J.P. ROAD, 1ST PHASE,
GIRINAGAR, BANGALORE - 560 085,
REP. BY ITS ADMINISTRATOR AND
THE G.P.A. HOLDER OF THE PONTIFF. ... RESPONDENTS
(BY SRI MADHUSUDHAN R. NAIK, ADVOCATE GENERAL A/W MR.
VIVEK HOLLA, GOVT. PLEADER FOR R-1 TO R-5; SRI
RAJANIKANT KULKARNI, ADVOCATE FOR R-6; MR.
A.G.HOLLA, SENIOR ADVOCATE, MR. K.G. RAGHAVAN, SENIOR
ADVOCATE A/W MR. GANAPATHI HEGDE, MR.
P.N.MANMOHAN, MR. K. GOVINDA RAJ, MR. ARUN SHYAM, MR.
DINESH MURALIDHAR BHAT AND MS. A.R. LAXMI, ADVOCATES FOR R-
6; MR. K.V. NARASIMHAN, ADVOCATE FOR IMPLEADING APPLICANT
IN I.A.NO.1/14)
THESE WRIT APPEALS ARE FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT, 1961 PRAYING TO SET ASIDE THE ORDER PASSED
IN THE WRIT PETITION NO.11656/08 DATED 05/09/2008.
*****
IN W.P.No.11734/2008
BETWEEN:
1. VIDHWAN SAMBA DIXIT
S/O. LATE DAMODAR UPADHYA,
AGED 72 YEARS,
NEAR KOTI TEERTHA,
GOKARNA, KUMTA TALUK,
UTTARA KANNADA DISTRICT.
2. SRI NAGABHUSHAN UPADHYA,
S/O. NARAYAN,
AGED 30 YEARS,
OCCUPATION - DEALER IN RELIGIOUS BOOKS,
RATHABEEDI, GOKARNA.
BOTH ARE RESIDENTS OF GOKARNA,
TALUK - KUMTA,
DISTRICT - UTTARA KANNADA. ... PETITIONERS
(BY SRI GOWTHAM CHAND, SRI P.N. RAJESHWAR AND
SRI H.R.NARAYANA RAO, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA
REP. BY THE CHIEF SECRETARY,
VIDHANA SOUDHA,
-9-
BANGALORE - 1.
2. COMMISSIONER (PEETHADHIKARI)
REVENUE DEPARTMENT - MUZARAI,
GOVERNMENT OF KARNATAKA,
M.S. BUILDING,
BANGALORE - 1.
3. REVENUE DEPARTMENT,
GOVERNMENT OF KARNATAKA,
REP. BY THE SECRETARY,
ROOM NO.546-547, 5TH FLOOR
2ND STATE, M.S. BUILDING,
BANGALORE - 1.
4. THE COMMISSIONER FOR HINDU RELIGIOUS INSTITUTIONS &
CHARITABLE ENDOWMENTS,
HAVING OFFICE AT ALBERT VICTOR ROAD,
CHAMRAJPET, BANGALORE - 18.
5. DEPUTY COMMISSIONER,
UTTARA KANNADA DISTRICT,
KARWAR.
6. DEPUTY COMMISSIONER,
KUMTA DIVISION, KARWAR
UTTARA KANNADA DISTRICT.
7. TAHSILDAR,
KUMTA TALUK,
UTTARA KARNATAKA DISTRICT,
KARWAR.
8. SHREE RAMACHANDRAPUR MATH
AT HOSANAGAR,
TALUK - HOSANAGAR,
DISTRICT - SHIMOGA,
REPRESENTED BY HEAD OF THE MATH
OFFICE AT - 2A, J.P. ROAD,
GIRINAGAR, 1ST PHASE,
BANGALORE - 560 085.
9. SHRI RAGHAVESHWAR BHARATI SWAMIJI,
AGED ABOUT 35 YEARS,
AT SAID ADDRESS, AT GIRINAGAR.
10. UPADHIVANT MANDAL OF
- 10 -
SHRI KSHETRA GOKARNA,
REP. BY THE PRESIDENT
AT RATHABEEDI, GOKARNA,
TALUK - KUMTA,
DISTRICT - UTTARA KANNADA.
11. SHRI SHAM BHAT, IAS.,
COMMISSIONER,
RELIGIOUS ENDOWMENTS ILAKHE,
CHAMARAJPET,
BANGALORE.
12. SHREE MAHABALESHWARA DEVASTHAN,
GOKARNA, TALUK - KUMTA,
DISTRICT - UTTARA KANNADA,
DIETY REP. BY BOARD OF TRUSTEES,
DULY RECOGNIZED BY
ASST. CHARITY COMMISSIONER,
BELGAUM, TO BE SERVED AT RATHA BEEDI,
GOKARNA, TALUK - KUMTA,
DISTRICT - UTTARA KANNADA.
13. SHRI BALACHANDRA DIXIT,
S/O. LATE VIGNESWAR DIXIT,
AGED 32 YEARS, TRUSTEE OF
SHRI MAHABALESHWARA TEMPLE, GOKARNA,
TALUK - KUMTA,
DISTRICT - UTTARA KANNADA. ... RESPONDENTS
(BY SRI MADHUSUDHAN R. NAIK, ADVOCATE GENERAL A/W MR.
VIVEK HOLLA, GOVT. PLEADER FOR R-1 TO R-7; SRI
A.G.HOLLA, SENIOR ADVOCATE, MR. K.G. RAGHAVAN, SENIOR
ADVOCATE A/W MR. GANAPATHI HEGDE, SRI P.N.
MANMOHAN, SRI K. GOVINDA RAJ, SRI ARUN SHYAM, MR. DINESH
MURALIDHAR BHAT AND MS. A.R. LAXMI, ADVOCATES FOR R-8; SRI
P.N. MANMOHAN, ADVOCATE FOR R-9; SRI RAJANIKANTH KULKARNI,
ADVOCATE FOR R-10; SRI G. LAKSHMEESH RAO, ADVOCATE FOR
R-11; R-12 SERVED; SRI YASHODARA RAO, PARTY-IN-PERSON
APPLICANT IN MISC.W.NO.8520/11; SRI M.S. MOHAN, PARTY-IN-
PERSON APPLICANT IN MISC.W.NO.295/11)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ANNEXURE - B,
THE ORDER NO.RD 56 MUAABI 2008, DATED 12.08.2008 ISSUED IN
THE NAME OF AND UNDER THE ORDER OF THE GOVERNOR AND DULY
SIGNED BY PEETHADIKARI, REVENUE DEPARTMENT (MUZARAI) AND
GRANT CONSEQUENTIAL RELIEFS THAT THE ADMINISTRATION OF
THE TEMPLE AND THE PROPERTIES OF THE TEMPLE - SRI
- 11 -
MAHABALESHWARA DEVASTHANA AT GOKARNA IS TAKEN BACK FROM
THE CUSTODY OF SRI RAMCHANDRAPUR MUTT, AND HANDED OVER
BACK TO THE PREVIOUS ADMINISTRATION, THE BOARD OF TRUSTEES
PRESENTLY TO SAID SRI BALACHANDRA (R13) ALONG WITH OTHER
EMINENT PERSONS AND INITIATE ACTION FOR THE ILLEGALITIES
COMMITTED BY THE STATE AND THE CONCERNED OFFICIALS AND
ALSO AGAINST SRI RAMCHANDRAPUR MUTT AND ITS HEAD AND THE
UPADIVANTA MANDALA FOR DELIBERATELY SUPPRESSING THE REAL
FACTS AND PLACING TOTALLY INCORRECT AND FALSE ASPECTS
WHICH HAS RESULTED IN A GREAT HAVOC.
*****
IN W.P.No.12612/2008
BETWEEN:
1. SRI M.S. MURALIDHAR
AGED ABOUT 36 YEARS,
S/O. SATHYANARAYANA RAO,
NO.13/1, 3RD CROSS, 6TH "A" MAIN,
TYAGARAJANAGAR, 3RD BLOCK,
BANGALORE - 560 028.
2. SRI N.G. PRAKASH
AGED ABOUT 38 YEARS,
S/O. N.S. GUNDU RAO,
NO.4, 8TH MAIN,
ANANDANAGAR, HOSAKEREHALLI,
BANASHANKARI III STAGE,
BANGALORE. ... PETITIONERS
(BY SRI ABHINAV RAMANAND, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REVENUE DEPARTMENT,
M.S. BUILDINGS,
VIDHANA VEEDHI,
BANGALORE - 560 001.
REP. BY ITS PRINCIPAL SECRETARY.
2. THE COMMISSIONER FOR RELIGIOUS
AND CHARITABLE ENDOWMENTS IN KARNATAKA,
ALUR VENKATARAO ROAD,
CHAMARAJPET,
BANGALORE - 560 019.
- 12 -
3. THE DEPUTY COMMISSIONER,
UTTARA KANNADA DISTRICT,
KARWAR - 581 018.
4. THE ASSISTANT COMMISSIONER
KUMTA SUB-DIVISION,
UTTARA KANNADA DISTRICT,
KARWAR - 581 326.
5. SRI KSHETRA GOKARNA
UPADIVANTHA MANDALA (R)
KUMTA TALUK, GOKARNA,
UTTARA KANNADA DISTRICT - 581 326.
REP. BY ITS SECRETARY/PRESIDENT.
6. SRI RAMACHANDRAPURA MUTT,
HANIYA POST, HOSANAGAR TALUK,
SHIMOGA DISTRICT, HAVING ITS
ADMINISTRATIVE OFFICE AT NO.2A,
J.P. ROAD, I PHASE, GIRINAGAR,
BANGALORE - 560 085,
REP. BY ITS ADMINISTRATOR. ... RESPONDENTS
(BY SRI MADHUSUDHAN R. NAIK, ADVOCATE GENERAL A/W SRI
VIVEK HOLLA, GOVT. PLEADER FOR R-1 TO R-4; SRI S. VIJAY
SHANKAR, SENIOR ADVOCATE A/W SRI M.V. VEDACHALA, ADVOCATE
FOR R-5; SRI A.G. HOLLA, SENIOR ADVOCATE, SRI K.G. RAGHAVAN,
SENIOR ADVOCATE A/W SRI GANAPATHI HEGDE, SRI P.N.
MANMOHAN, SRI K. GOVINDA RAJ, SRI ARUN SHYAM, MR. DINESH
MURALIDHAR BHAT AND MS. A.R. LAXMI, ADVOCATES FOR R-6; SRI
SUBRAMANYA JOIS SENIOR ADVOCATE A/W MRS. B.S.
VIJAYALAKSHMI AND SRI K.C.SHANTHA KUMAR,
ADVOCATE FOR IMPLEADING APPLICANT ON I.A.II/08, SRI V.
LAKSHMINARAYANA, SENIOR ADVOCATE FOR IMPLEADING APPLICANT
IN I.A.III/08)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE GOVERNMENT
ORDER NO.KUM.EE.56.MU.AA.BE.2008, DATED 12.08.2008 AT
ANNEXURE - A IN PURSUANCE OF WHICH SRI MAHABALESHWARA
TEMPLE AT GOKARNA, ITS AFFAIRS, PROPERTIES AND ALLIED
INSTITUTIONS HAVE BEEN HANDED OVER TO RESPONDENT NO.6 -
MUTT AND ISSUE APPROPRIATE DIRECTIONS TO RESPONDENT NOS.1
TO 4 TO RECOVER BACK GOKARNA MAHABALESHWARA TEMPLE, ITS
CONNECTED INSTITUTIONS, ASSETS, PROPERTIES ETC., BY
RETRIEVING THE SAME FROM THE RESPONDENT NO.6 - MUTT AND
ITS PONTIFF AND SEEK ACCOUNTS AND DIRECT A HIGH LEVEL
INVESTIGATION / CBI ENQUIRY TO INVESTIGATE THE ENTIRE
- 13 -
MATTER OF HANDING OVER OF GOKARNA MAHABALESHWARA TEMPLE
TO RESPONDENT NO.6 - MUTT AND TO SUBMIT A REPORT TO THIS
HON'BLE COURT FOR TAKING FURTHER ACTION AS AGAINST ERRING
OFFICIALS.
*****
IN W.P.No.14097/2008
BETWEEN:
SRI L.P. MUTAGUPPI, (ADV.,)
PARTY-IN-PERSON,
AGED ABOUT 38 YEARS,
BANNIKOPPA BUILDING, 3RD CROSS,
LAXMI NAGAR, VIDYAGIRI,
DHARWAD - 4. ... PETITIONER
(BY SRI L.P. MUTAGUPPI, PARTY-IN-PERSON)
AND:
1. THE STATE OF KARNATAKA,
BY ITS SECRETARY TO GOVERNMENT,
DEPARTMENT OF REVENUE (MUZARAI),
M.S. BUILDING,
BANGALORE - 560 001.
2. THE STATE OF KARNATAKA,
BY ITS CHIEF SECRETARY,
VIDHANA SOUDHA,
BANGALORE - 560 001.
3. THE COMMISSIONER FOR RELIGIOUS AND
CHARITABLE ENDOWMENTS,
MALE MAHADESHWARA BHAVAN,
CHAMARAJ PETE,
BANGALORE - 590 019.
4. THE DEPUTY COMMISSIONER,
UTTARA KANNADA DISTRICT AT KARWAR,
PIN CODE - 581 301.
5. THE ASST. COMMISSIONER,
KUMTA SUB-DIVISION AT AND TALUK - KUMTA,
DISTRICT UTTARA KANNADA,
PIN CODE - 581 343.
6. SRI RAMACHANDRAPUR MUTT,
- 14 -
POST: HANIYA, TALUK - HOSANAGAR,
SHIMOGA, REP. BY ITS PRESENT SWAMIJEE,
SRI RAGHAVESHWAR
BHARATI SWAMIJEE. ... RESPONDENTS
(BY SRI MADHUSUDHAN R. NAIK, ADVOCATE GENERAL A/W SRI
VIVEK HOLLA, GOVT. PLEADER FOR R-1 TO R-5; SRI A.G.
HOLLA, SENIOR ADVOCATE, SRI K.G. RAGHAVAN, SENIOR ADVOCATE
A/W SRI GANAPATHI HEGDE, SRI P.N.MANMOHAN, SRI K.
GOVINDA RAJ, SRI ARUN SHYAM, SRI MURALIDHAR BHAT AND MS.
A.R. LAXMI, ADVOCATES FOR R-6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 12.08.2008, PASSED BY RESPONDENT NO.1 IN
KAM.E.56.MU.AB.2008 VIDE ANNEX-A AND DIRECT RESPONDENT
NO.1 TO INCLUDE THE NAME OF THE TEMPLE IN THE LIST.
*****
IN W.P.No.31026/2008
BETWEEN:
1. SRI NARAHARI KRISHNA HEGDE,
AGED 44 YEARS,
S/O. SRI KRISHNA HEGDE,
MERCHANT,
R/O. MULKINA KOPPA VILLAGE,
ARASAPUR POST, SIRSI TALUK,
NORTH CANARA DISTRICT,
PRESENTLY RESIDING AT NO.1307,
4TH B CROSS, 2ND PHASE,
GIRINAGAR, BANGALORE - 560 085.
2. SRI VINAYAKA JANARDHANA HEGDE,
AGED 25 YEARS,
S/O. SRI JANARDHANA HEGDE,
AUDIT ASSISTANT,
R/O. CHIPGERI VILLAGE AND POST,
MUNDGOD TALUK,
NORTH CANARA DISTRICT. ... PETITIONERS
(BY SRI S.S. NAGANAND, SENIOR ADVOCATE A/W SRI ARJUN RAO,
AND MS. MAITHREYI BHAT, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY,
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REVENUE DEPARTMENT,
M.S. BUILDING, VIDHANA VEEDHI,
BANGALORE - 560 001.
2. THE COMMISSIONER FOR RELIGIOUS AND
CHARITABLE ENDOWMENTS IN KARNATAKA,
ALUR VENKAT RAO ROAD,
CHAMRAJPET,
BANGALORE - 560 018.
3. THE DEPUTY COMMISSIONER,
UTTARA KANNADA DISTRICT,
KARWAR.
4. THE ASSISTANT COMMISSIONER,
RELIGIOUS AND CHARITABLE
ENDOWMENTS DEPARTMENT, KUMTA,
UTTARA KANNADA DISTRICT.
5. THE TAHSILDAR
KUMTA TALUK,
UTTARA KANNADA DISTRICT.
6. SRIKSHETRA GOKARNA UPADHIVANTHA
MANDALA (REGD.),
GOKARNA - 581 326.
KUMTA TALUK, UTTARA KANNADA DISTRICT,
REP. BY ITS SECRETARY/PRESIDENT.
7. SRI RAMACHANDRAPURA MUTT,
HANIYA POST, HOSANAGAR TALUK,
SHIMOGA DISTRICT AND HAVING ITS
ADMINISTRATIVE OFFICE AT
NO.2 A, J.P. ROAD, 1ST PHASE,
GIRINAGAR, BANGALORE - 560 085,
REP. BY ITS ADMINISTRATOR AND THE
G.P.A. HOLDER OF THE PONTIFF.
8. SRI MUGALI THIRUMALESHWARA BHAT
S/O. RAMAKRISHNA BHAT,
AGED 50 YEARS,
RESIDING AT MUGULI HOUSE,
KARAPADY POST, TALUK - BANTWAL,
DISTRICT - D.K.
REP. BY SPECIAL POWER OF ATTORNEY
HOLDER - PARPAJE VENKATARAMAN BHAT
S/O. P. GOVIND BHAT, AGED 59 YEARS,
RESIDING AT MALARANDA, MANI POST,
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TALUK - BANTWAL, DISTRICT - D.K.
9. SRI C. RAJESHWARA SHASTRY
S/O. SHAMBHU SHASTRY,
AGED 35 YEARS,
RESIDING AT MOODAMBILU HOUSE,
POST MOODAMBILU VIA
ADYANADKA, TALUK - BANTWAL,
DISTRICT D.K. - 574 260.
(AMENDMENT V.C.O. DATED 17/02/2009
AS RESPONDENT NO.8 & 9) ... RESPONDENTS
(BY SRI MADHUSUDHAN R. NAIK, ADVOCATE GENERAL A/W SRI
VIVEK HOLLA, GOVT. PLEADER FOR R-1 TO R-5; SRI G.N.
NARASAMMANNAVAR, ADVOCATE FOR R-6; SRI A.G. HOLLA,
SENIOR ADVOCATE, SRI K.G. RAGHAVAN, SENIOR ADVOCATE A/W
SRI GANAPATHI HEGDE, SRI P.N. MANMOHAN, SRI K.
GOVINDA RAJ, SRI ARUN SHYAM, SRI MURALIDHAR BHAT AND MS.
A.R. LAXMI, ADVOCATES FOR R-7; SRI G. BALAKRISHNA SHASTRY,
ADVOCATE FOR R-8 & R-9)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE
RECORDS AND FILES RELATING TO IMPUGNED GOVERNMENT ORDER
NO.KUM.EE.56.MU.AA.BE.2008, DATED 12.08.2008 VIDE ANNEXURE -
A AND QUASH THE SAID ORDER AND TO ISSUE DIRECTION TO
RESPONDENT NOS.1 AND 2 TO FORBEAR FROM MEDDLING WITH THE
AFFAIRS, MANAGEMENT, ADMINISTRATION AND CONTROL OF SRI
GOKARNA MAHABALESHWARA TEMPLE, GOKARNA, KUMTA TALUK,
U.K. DIST. AND PARIVARA DEVARUGALA DEVASTHANAGALU
MENTIONED IN THE IMPUGNED ORDER, IN ANY MANNER AFFECTING
IMPINGING OR ENCROACHING UPON THE RELIGIOUS RIGHTS OF THE
PETITIONERS, AND ALSO REFRAINING THE SAID RESPONDENTS
FROM BATERING AWAY ANY OF THE SAID PUBLIC TEMPLES TO ANY
PRIVATE BODY, INDIVIDUAL MUTT, ORGANISAITON, ASSOCIATION,
SOCIETY OR THE LIKE, BUT TO CONTINUE THE SAME AS PUBLIC
HINDU RELIGIOUS INSTITUTIONS FOR RELIGIOUS PURPOSE AND TO
DIRECT RESPONDENT NO.7 TO RESTORE BACK TO THE CONTROL OF
THE RESPONDENT NOS.1 TO 4 IN GENERAL AND RESPONDENT NO.1
IN PARTICULAR, THE TEMPLES AND THE PROPERTIES THEREOF,
NAMED IN THE IMPUGNED ORDER DATED 12.08.2008 (ANNEXURE -
A), AND RENDER TRUE AND PROPER ACCOUNTS OF THE INCOME
THAT THE SAID RESPONDENT HAS DERIVED AND WOULD BE
DERIVING FROM THE SAID TEMPLES FROM 17.08.2008 TILL THE DATE
OF SUCH A RESTORATION AND TO DECLARE AND QUASH THE
MUTATION EFFECTED VIDE ANNEXURE - Z4 COLLECTIVELY IN
M.R.NO.69/ 2008-2009, DATED 29.08.2008 AND THE RECORD OF
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RIGHTS VIDE ANNEXUREZ5 BEARING NO.NIL AS VOID,
UNAUTHORISED, ARBITRARY AND WITHOUT THE AUTHORITY OF LAW.
*****
IN W.A.No.6121/2010
BETWEEN:
1. SREE SAMSTHANA MAHABALESHWARA DEVARU
(A REGISTERED TRUST UNDER THE
BOMBAY PUBLIC TRUST ACT, 1950)
REP. BY ITS MANAGING TRUSTEE,
SRI BALACHANDRA VIGNESWARA DIXIT,
MAJOR, R/O. GOKARNA.
2. SRI BALACHANDRA VIGNESWARA DIXIT,
S/O. LATE VIGNESWARA DIXIT,
AGED 57 YEARS,
MUKTHESAR AND MANAGING TRUSTEE,
SRI GOKARNA MAHABALESHWARA
TEMPLE, GOKARNA.
(NOTE: APPELLANT NO.1 IS
REPRESENTED BY APPELLANT NO.2) ... APPELLANTS
(BY SRI S.S. NAGANAND, SENIOR ADVOCATE A/W. SRI ARJUN RAO,
AND MS. MAITHREYI BHAT, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA,
REVENUE DEPARTMENT,
M.S. BUILDING, AMBEDKAR VEEDHI,
BY ITS SECRETARY,
BANGALORE - 560 001.
2. THE ASSISTANT COMMISSIONER
KUMTA SUB-DIVISION, KUMTA,
UTTARA KANNADA DISTRICT. ... RESPONDENTS
(BY SRI MADHUSUDHAN R. NAIK, ADVOCATE GENERAL A/W SRI
VIVEK HOLLA, GOVT. PLEADER)
THIS WRIT APPEAL IS FILED U/S 4 OF KARNATAKA HIGH
COURT ACT, 1961 PRAYING TO CALL FOR THE RECORDS RELATING TO
THE WRIT PETITION IN W.P.NO.17580/2006 (GM-RC), PERUSE THE
SAME AND SET ASIDE THE FINAL ORDER DATED 08.03.2010
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RENDERED IN THE SAID PETITION AS UNSUSTAINABLE IN LAW AND
ALLOW THE SAID WRIT PETITION WITH COSTS THROUGHOUT.
*****
IN W.P.No.60096/2010
BETWEEN:
1. SRI GAJANANA KRISHNA HIRE,
AGED 63 YEARS,
S/O. SRI KRISHNA RAMACHANDRA HIRE,
VYDIKA VIDWAN,
KOTHI THIRTHA ROAD, GOKARNA,
KUMTA TALUK, U.K. DISTRICT.
2. SRI DATTATREYA SHYAM BHAT GOPI,
AGED 48 YEARS,
S/O. SHAMA BHAT GANAPAIAH GOPI,
VYDIKA VIDWAN,
KOTHI THIRTHA ROAD, GOKARNA,
KUMTA TALUK, U.K. DISTRICT. ... PETITIONERS
(BY SRI S.S. NAGANAND, SENIOR ADVOCATE A/W. SRI ARJUN RAO,
AND MS. MAITHREYI BHAT, ADVOCATES FOR PETITIONER NO.1; SRI
V.G. BHAT, ADVOCATE FOR PETITIONER NO.2)
AND:
1. STATE OF KARNATAKA,
REP. BY ITS PRINCIPAL SECRETARY,
REVENUE DEPARTMENT,
M.S. BUILDINGS, VIDHANA VEEDHI,
BANGALORE - 560 001.
2. THE COMMISSIONER FOR RELIGIOUS AND
CHARITABLE ENDOWMENTS IN KARNATAKA,
MALAI MAHADESHWARA BUILDING,
ALUR VENKATA RAO ROAD,
CHAMARAJAPET,
BANGALORE - 560 018.
3. THE DEPUTY COMMISSIONER,
UTTARA KANNADA DISTRICT,
KARWAR.
4. THE ASSISTANT COMMISSIONER,
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RELIGIOUS AND ENDOWMENTS DEPARTMENT,
KUMTA SUB-DIVISION, KUMTA,
UTTARA KANNADA DISTRICT.
5. THE TAHSILDAR,
KUMTA TALUK, KUMTA,
UTTARA KANNADA DISTRICT.
6. SRI RAMACHANDRAPURA MUTT,
HANIYA VILLAGE, HUMCHA HOBLI,
HOSANAGAR TALUK, SHIMOGA DISTRICT,
REP. BY ITS PONTIFF
SRI RAGHAVESHWARA BHARATHI,
MAJOR, R/O. DOOR NO.2A, J.P. ROAD,
GIRINAGAR I PHASE,
BANGALORE - 560 085. ... RESPONDENTS
(BY SRI MADHUSUDHAN R. NAIK, ADVOCATE GENERAL A/W SRI
VIVEK HOLLA, GOVT. PLEADER FOR R-1 TO R-5; SRI
A.G.HOLLA, SENIOR ADVOCATE, SRI K.G. RAGHAVAN, SENIOR
ADVOCATE A/W SRI GANAPATHI HEGDE, SRI P.N.
MANMOHAN, SRI K. GOVINDA RAJ, SRI ARUN SHYAM, SRI
MURALIDHAR BHAT AND MS. A.R. LAXMI, ADVOCATES FOR R-6)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE
RECORDS RELATING TO CONCERNING AND CONNECTED WITH THE
IMPUGNED ORDER NO.KUM.EE.56.MUAABE.2008, DATED 12.08.2008
VIDE ANNEXURE - K, PERUSE THE SAME AND DECLARE AND QUASH
THE SAID ORDER AS VOID, A CAMOUFLAGE AND A FRAUD ON THE
ASSUMED POWERS OF THE GOVERNMENT AND THUS, HAVING NO
LEGAL EFFICACY AND ISSUE DIRECTION TO RESPONDENT NOS.1 AND
2 TO FORBEAR FROM MEDDLING WITH THE AFFAIRS AND THE
MANAGEMENT, ADMINISTRATION AND CONTROL OF SRI GOKARNA
MAHABALESHWARA TEMPLE, GOKARNA, KUMTA TALUK, U.K. DIST.,
AND THE PARIVARA DEVARUGALA DEVASTHANA MENTIONED IN THE
IMPUGNED ORDER VIDE ANNEXURE - K (IBID), IN ANY MANNER
AFFECTING, IMPINGING OR ENCROACHING UPON, THE RELIGIOUS
RIGHTS OF THE PETITIONERS AND ALSO REFRAINING THE SAID
RESPONDENTS FROM BARTERING AWAY ANY OF THE SAID PUBLIC
TEMPLES TO ANY PRIVATE BODY, INDIVIDUAL, MUTT,
ORGANISATION, ASSOCIATION, SOCIETY OR THE LIKE, BUT
CONTINUE THE SAME UNDER THEIR ADMINISTRATION AS PUBLIC
HINDU RELIGIOUS INSTITUTION FOR RELIGIOUS PURPOSE AND
DIRECT RESPONDENT NO.1 TO FORTHWITH IMPLEMENT, WITHOUT
BROOKING ANY FURTHER DELAY, THE RECOMMENDATIONS
CONTAINED IN THE REPORT DATED 13/09/2007 OF HIGH POWER
COMMITTEE VIDE ANNEXURE - G, IN LETTER AND SPIRIT AND
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DIRECT RESPONDENT NO.6 TO RESTORE BACK FORTHWITH THE
CONTROL OF RESPONDENT NOS.L1 TO 4 IN GENERAL, AND
RESPONDENT NO.1 IN PARTICULAR, THE TEMPLES AND THE
PROPERTIES THEREOF NAMED IN THE IMPUGNED ORDER DATED
12.08.2008 VIDE ANNEXURE - K, AND RENDER TRUE AND PROPER
ACCOUNTS OF THE INCOME THAT THE SAID RESPONDENT HAS
DERIVED AND WOULD BE DERIVING FROM THE SAID TEMPLES FROM
14.08.2008 TILL THE DATE OF SUCH A RESTORATION.
THE ORDERS IN THESE PETITIONS AND APPEALS HAVING BEEN
RESERVED ON 05/04/2018 AND THEY BEING LISTED FOR
PRONOUNCEMENT TODAY, NAGARATHNA J., PRONOUNCED THE
FOLLOWING:
ORDER
These writ petitions and writ appeals have been clubbed and heard together as they mainly concern the controversy arising from the issuance of Government Order dated 12/08/2008 under which Gokarna Mahabaleshwara Temple along with its allied Temples (hereinafter referred to as "Temple" or "Gokarna Temple" for the sake of convenience) has been deleted from Notification dated 30/04/2003 with effect from 01/05/2003 and Gokarna Temple and its connected institutions have been handed over to respondent Sri Ramachandrapura Mutt, (hereinafter referred to as "Mutt" (also known as "Matha") respondent No.6 in W.P.No.30609/2008 and arrayed as respondent in connected writ petitions, which is headed by a Pontiff (also
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known as "Swamiji") and in some cases, represented by its Administrator and/or General Power of Attorney Holder. Bird's eye view of the controversy:
2. As already stated, this bunch of writ petitions revolve around Government Order dated 12/08/2008.
Certain writ petitions are filed in public interest assailing the said Government Order, while W.P.No.30609/2008 is in private interest challenging the very same Government Order. W.P.No.30609/2008 is filed on behalf of the deity and by Balachandra Vigneshwara Dixit, assailing the Government Order dated 12/08/2008 (Annexure-A to the writ petition). W.P.No.60096/2010 has been filed by Sri Gajanana Krishna Hire and Sri Dattatreya Shyam Bhat Gopi, who are stated to be Vydika Vidwans, permanent residents of Gokarna and ardent devotees of Sri Mahabaleshwara deity of Gokarna Kshetra. They have also assailed Government Order dated 12/08/2008 (Annexure - K to the writ petition) and they have sought a direction against respondent Nos.1 and 2 to forbear with meddling of the affairs and management, administration and control of
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Gokarna Temple and Parivara Devarugala Devasthana mentioned in impugned order vide Annexure - K. They have also sought a direction for implementation of the recommendations contained in the Report dated 13/09/2007 of the High Power Committee, headed by Dr. Justice M Rama Jois, Former Judge and former Chief Justice of Punjab and Haryana High Court.
W.P.Nos.11734/2008, 12612/2008 and 14097/2008 are public interest litigations. They have all assailed impugned Government Order dated 12/08/2008. The second relief in W.P.No.11734/2008 is sought to be deleted by filing Misc.W.No.9772/2010. W.P.No.12612/2018 is filed by two petitioners assailing Government Order dated 12/08/2008 (Annexure-A). They have also sought for certain other reliefs. They have also sought for appropriate directions to be issued to respondent Nos.1 to 4 therein to recover the Temple and its connected Institutions, assets, properties etc., from respondent No.6 - Mutt and Pontiff and to seek accounts and to direct a high level investigation/CBI enquiry to investigate into the entire
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matter for handing over the Temple to respondent No.6 - Mutt and to submit a report to this Court.
W.P.No.31026/2008 has been filed by two petitioners assailing Government Order dated 12/08/2008 (Annexure - A) as being void, inoperative, unauthorized, etc., and to issue consequential directions to respondent Nos.1 and 2 to forbear with the meddling of the management, administration and control of the Temple and the Parivara Devarugala Devasthanagalu (allied Temples). They have further sought a direction to respondent No.7 to restore to the control of respondent Nos.1 to 4 in general and respondent No.1 in particular, the Temples and the properties named in the impugned order dated 12/08/2008 and to render true and proper accounts of the income that the said respondent has derived from the said Temples from 17/08/2008 till such restoration. They have also sought a declaration and quash the mutation effected vide Annexure - Z4 collectively in M.R.No.69/2008-2009, dated 29/08/2008 and record of rights vide Annexure - Z5 as void, unauthorized, arbitrary and without authority of law.
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Apart from the writ petitions, W.A.No.6121/2010 has been filed seeking setting aside of order dated 08/03/2010 passed in W.P.No.17580/2006 dismissing the said writ petition. The said writ petition was filed by raising a challenge to Notification dated 17/11/2006 issued by the State through the Department of Revenue appointing an Executive Officer to the Gokarna Temple. It is stated by learned senior counsel on behalf of the appellants in the said appeal that the said writ appeal would not survive for further consideration in view of the enforcement of the impugned Government Order dated 12/08/2008.
CCC No.2020/2009 has been filed by the second petitioner in W.P.No.30609/2008 contending that there is violation of interim order dated 12/12/2006, passed in W.P.No.17580/2006, by which, the parties were directed to maintain status quo and which was extended by order dated 19/12/2006, until further orders. It is contended that during the operation of the aforesaid interim order of status quo, the Department of Revenue on 12/08/2008 deleted Gokarna Temple from the List of Notified Institutions issued
- 25 -
by the State Government and handed it over to the respondent - Mutt, which action is assailed in some of these writ petitions.
3. We have perused the memorandum of writ petitions, statement of objections and other pleadings filed in each of the cases as well as the material placed on record.
Background Facts:
4. The Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 (hereinafter referred to as "the Act" for the sake of brevity), received assent of the President of India on 25/10/2001 and was enforced in the State from 01/05/2003. Under Section 78 of the said Act, the Religious Endowments Act, 1863; The Charitable Endowments Act, 1890 and the Charitable and Religious Trusts Act, 1920 are not applied to Charitable Endowments and Hindu Religious Institutions governed under the Act. Under sub-section (2) of Section 78, the following enactments namely, the Bombay Public Trust Act, 1950; the Madras Hindu Religious and Charitable Endowments
- 26 -
Act, 1951; the Coorg Temple Funds Management Regulations, 1892; the Mysore Religious and Charitable Institutions Act, 1927; the Hyderabad Endowment Regulations, 1349-F; the Renuka Yellamma Devasthana (Administration) Act, 1974; the Coorg Temples Fund Management Act, 1956 have been repealed. However, Section 6 of the Karnataka General Clauses Act, 1899 (hereinafter referred to as "General Clauses Act", for the sake of brevity) has been made applicable in respect of the repeal of the said enactments and Sections 8 and 24 of the General Clauses Act have also been made applicable as if the said enactments are repealed and re-enacted under the Act.
5. Under Section 23 of the Act, the State Government has to publish a Notification in respect of each revenue district containing a list of (a) all charitable institutions and Hindu religious institutions, which on the date of commencement of the Act were in the sole charge of the State Government or for the benefit of which,- (i) any monthly or annual grant in perpetuity is made from
- 27 -
public revenues; or (ii) tasdik allowance under section 19 of Mysore Religious and Charitable Inams Abolition Act, 1955 is paid; (b) all institutions registered under the Book of Endowments under the Hyderabad Endowment Regulations, 1349F; (c) all institutions governed by the then Madras Hindu Religious and Charitable Endowments Act, 1951;
(d) all institutions in Kodagu District which are governed by the Coorg Temple Funds Management Act, 1956; (e) all Hindu religious institutions registered under the Bombay Public Trust Act, 1950, which are in receipt of any monthly or annual grant from public revenue or any amount under the Karnataka Certain Inams (Abolition) Act, 1977; (f) Sri Renuka Yellamma Temple, Saundatti, governed under the Renuka Yellamma Devasthana (Administration) Act, 1974.
The State Government by Notification dated 30/04/2003 notified as many as 34,245 Temples under Section 23 of the Act. The said Notification was published in the Official Gazette on 30/04/2003, later on made effective from 01/05/2003. Under the said Notification, as far as Uttara Kannada District (U.K.District) is concerned, in
- 28 -
Kumta Taluk, Gokarna Temple was notified at Sl.No.92. The place, Gokarna in Uttara Kannada District was part of erstwhile Bombay Presidency and later, after re- organisation of States was merged with State of Mysore, now known as Karnataka.
6. According to the petitioners, Gokarna is a great religious centre of the entire Hindu Community. It is also known as Dakshina Kashi. The petitioners have adverted to Hindu mythology. The history of the Gokarna Temple containing the Athmalinga dates back to Threthayuga and mythology relates the said Lingam at Gokarna to Ravana, who is stated to be an ardent devotee of Lord Shiva and being pleased by Ravana's arduous penance gave away his Athmalinga, a priceless possession to Ravana. It is believed that Ravana had entrusted the Athmalinga in the hands of Lord Ganesha, who had appeared before Ravana near the seashore (Arabian sea) during the sunset of the eventful day, requesting Lord Ganesha to keep it in His hands till he returned after offering his prayers to the Sun God in the evening and by warning that, if the Athmalinga
- 29 -
touches the ground, it would become immovable and attached to the earth and therefore, He should carefully hold in His hands. It is further believed that Lord Ganesha also imposed a counter condition to Ravana that if the latter had to return early and that after calling out his name thrice consecutively, he would place the Athmalinga on the earth and he would not be responsible for consequences thereof. It is believed in Hindu mythology that even though Lord Ganesha cried out the name of Ravana thrice consecutively, since Ravana was deep in meditation, did not respond immediately and Lord Ganesha placed the Athmalinga on the ground, on which, it has been existing since then, and Threthayuga was succeeded by Dwaparayuga and thereafter Kaliyuga. It is believed that Ravana on his return used all his physical prowess to remove the Athmalinga from the ground into which it had gone deeply embedded and in a fit of fury, Ravana twisted the Athmalinga, but in vain. He could take out four pieces, which were flung in different directions and are at Murudeshwara, Gunavantheshwara, Dhareshwara and Sarvareshwara, which are all historical places of religious
- 30 -
importance in Honnavar and Kumta Taluks, but the major portion of Athmalinga is in the pilgrim centre of Gokarna and it has been worshipped by Hindus as Mahabaleshwara. Further, according to the petitioners, the expression "Gokarna" is a composite word meaning "Go" (cow) and "Karna" (ear) i.e., cow's ear. According to Hindu mythology, Ravana made serious attempts to remove the Athmalinga from Gokarna so as to take it to his kingdom, but he was unsuccessful. Hence, Gokarna is stated to be a punyakshetra.
7. The Temple was governed under the provisions of the Bombay Public Trust Act, 1950 (hereinafter referred to as "BPT Act") as it was a Public Institution or a Temple. It was registered under the said Act on 07/04/1953. The Temple was managed by hereditary Trustees, who constituted themselves into a Board or Committee. The provisions of the BPT Act recognized hereditary rights of the Trustees and Archakas functioning in the Temple. The hereditary rights of Trustees were recognized by the Charity Commissioner appointed under the BPT Act. The Charity
- 31 -
Commissioner was usually a Judicial Officer of the rank of District Judge. As the Temple was a Hindu Religious Institution registered under the BPT Act, it became a Notified Institution under Section 23 of the Act.
8. Without elaborating on the aspect concerning the striking down of the Act and the orders passed thereon, at this stage as it shall be discussed separately, the background facts (as verified from the original records) leading upto the issuance of the impugned Government Order dated 12/08/2008, could be narrated from the documents annexed to the writ petitions.
9. The President of the Upadivanta Mandala submitted a letter dated 01/02/2008 to His Excellency Governor of Karnataka (as the State was under President's Rule then) with a copy to the Commissioner, Religious and Charitable Endowments ("Commissioner, Endowments", for short) seeking dropping of all proceeding initiated by the State Government regarding the Temple and handing over the administration etc., of the same to Sri Ramachandrapura Mutt (respondent - Mutt). On receipt of
- 32 -
the said letter, the Commissioner, Endowments by his communication dated 20/02/2008 sent to the Deputy Commissioner, sought a report from the latter, after examination of all aspects regarding handing over of the Temple to the respondent - Mutt. In fact, a copy of the letter of the President of Upadivanta Mandala was also enclosed to the Deputy Commissioner. On 26/02/2008, Tahsildar, Kumta, wrote to the Assistant Commissioner, Kumta, stating that on the basis of the available documents, it was found that the Temple's administration was earlier with the Mutt and therefore, he recommended handing over of the Temple to the Mutt. On the very same day, the Assistant Commissioner, wrote to the Deputy Commissioner, Uttara Kannada District enclosing the view of the Tahsildar. Subsequently, the Deputy Commissioner, Uttara Kannada District, by his communication dated 01/04/2008 made to the Commissioner, Endowments stated that since the Mutt belonged to a particular sect and since the Act did not specifically provide for handing over of a Temple to a Mutt, it was not proper for handing over of Temple to the respondent - Mutt.
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10. Thereafter, on 12/04/2008, respondent - Mutt itself made a representation seeking deletion of the Temple from the List of Notified Institutions and handing over the Temple to the Mutt.
11. Subsequently, the Principal Secretary, Revenue Department wrote to the Commissioner, Endowments on 25/04/2008 enclosing the letters from the Governor's Office and the Upadivanta Mandala seeking a report from the Commissioner, Endowments.
12. The respondent - Mutt by its letter dated 08/05/2008, written to the Commissioner, Endowments sought to demonstrate that Gokarna Temple was attached to the said Mutt. Subsequently, on 14/05/2008, Commissioner, Endowments wrote to the State Government to the effect that opinion of learned Advocate General for the State of Karnataka had to be taken with regard to the deletion or denotification of the Temple from the List of Notified Institutions issued vide Government Notification dated 30/04/2003 (01/05/2003). On the very same day
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i.e., on 14/05/2008, the Secretary, Revenue Department, wrote to the Commissioner, Endowments to the effect that since the Law Department had opined that no Temple should be deleted from the List of Notified Institutions, no proposal for denotification be sent by the Commissioner. In fact, on 15/05/2008, the Deputy Commissioner, Uttara Kannada District, wrote to the Commissioner, Endowments bringing to his notice, objections received from devotees with regard to handing over of the Temple to the respondent - Mutt and for taking suitable action thereon. In the circumstances, the Secretary, Revenue Department, by his letter dated 27/05/2008, wrote to the Commissioner, Endowments that the proposal dated 14/05/2008 had been rejected on the basis of the opinion of the Law Department.
13. In the meanwhile, one more memorandum dated 17/05/2008 was submitted to His Excellency Government of Karnataka by the Upadivanta Mandala seeking deletion of the Temple from the List of Notified Institutions and its administration and management be restored to the respondent - Mutt. The said Memorandum was forwarded
- 35 -
to the Secretary, Revenue Department by the Special Secretary to the Governor vide communication dated 28/05/2008.
When the aforesaid communications and correspondences were being made, there was President's Rule in the State of Karnataka from 20/11/2007 and the elected Government assumed office on 30/05/2008.
14. Subsequently, on 21/06/2008, Commissioner, Endowments wrote to Chief Minister's Principal Secretary with a Note on the entire matter seeking deletion of Temple from the List of Notified Institutions. The Note also refers to the letters of the Secretary, Revenue, regarding dropping of proposal for deletion of Temple from List of Notified Institutions and also for rejecting the proposal of Commissioner, Endowments made earlier. In the said letter, the Commissioner also suggested that opinion of the learned Advocate General would be taken in the matter. On 22/07/2008, Secretary, Revenue sought an opinion from the learned Advocate General for the State of Karnataka on the "legality of deletion of Temple from the List of
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Notified Institutions". Learned Advocate General gave his opinion on 24/07/2008 on the basis of Section 21 of the General Clauses Act to the effect that it was open to the State Government to delete the Temple from the List of Notified Institutions provided there was no order of any Court restraining the same.
15. Thereafter, the impugned Order dated 12/08/2008 was issued by the State Government. The said order states that on the basis of the representation of the Upadivanta Mandala and the request made by the respondent - Mutt and on the material placed before it as well as the reports of the Commissioner, Endowments, the Temple had been deleted from Government Notification dated 30/04/2003 (01/05/2003) as a Notified Institution. Further, the Government Order also states that the Management and Administration of the Temple was being handed over to the Mutt. The said Government Order dated 12/08/2008 is impugned in these writ petitions while seeking certain other ancillary and incidental prayers.
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History of the Act & BPT Act:
16. Before proceeding further, it would be useful to briefly touch upon the checkered history of the Act and BPT Act, which have a bearing on the controversy in question so as to bring out the contextual background to the impugned Government Order dated 12/08/2008.
The Act (which is of the year 1997) was enforced with effect from 30/04/2003. The object of the Act is to make better management and administration of Hindu Religious Institutions and Charitable Endowments in the State of Karnataka. Under sub-section (4) of Section 1 of the Act, it is stated that the Act does not apply (i) to a Mutt or a Temple attached thereto; (ii) to any Hindu Religious Charitable Endowment founded, organised, run or managed by Hindu Religious denomination. The Explanation states that for the purposes of the Act, a 'Mutt' means a religious institution presided over by a person whose principal duty is to engage himself in the teaching and propagation of religion, teachings and philosophy of the denomination, sect or sampradaya to which the Mutt belongs and in imparting religious instruction and training and rendering spiritual
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service or who exercises or claims to exercise spiritual headship over a body of disciples; and includes any place or places of religious worship, instruction or training, which are pertinent to the institution. As already noted, Section 23 deals with Notified Institutions. The Temple in question was included as one of the Notified Institutions.
17. Being aggrieved by the provisions of the Act, the vires of the Act was challenged by several persons including various Temples/Trustees/Archakas by filing writ petitions before this Court questioning the constitutional validity of the Act. Some petitioners also challenged the Notification issued under the Act with regard to Notification of the Temples as Notified Institutions. The matter was heard by a learned single Judge of this Court and by order dated 09/09/2005, the Act was held to be valid and constitutional. Learned single Judge, however, reserved liberty to the petitioners, who were aggrieved by their inclusion in the notification, to approach the authorities under the Act, if so advised. That if any such complaint was to be filed, the authorities were to hold an enquiry after giving an
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opportunity and thereafter, to pass orders in accordance with law. Being aggrieved by the order of the learned single Judge, W.A.No.3440/2005 and connected matters were filed. The Division Bench by its judgment dated 08/09/2006 struck down the entire Act as well as notifications made thereunder as unconstitutional. The said judgment is reported as in Sri Sahasra Lingeswara Temple and others vs. State of Karnataka and another [ILR 2006 KAR 4386]. The Division Bench considered the case on the touchstone of objects/history of the Act, scheme of the Act, constitutional validity of the Act with reference to Articles 14, 25 and 26 of the Constitution and gave its findings and conclusions. The Division Bench held that the Act was in violation of Articles 14, 25 and 26 of the Constitution and struck down the entire Act as well as Notification issued under the Act as unconstitutional.
18. The State of Karnataka preferred Special Leave Petition in Civil Appeal No.5924/2008 before the Hon'ble Supreme Court assailing the judgment of the Division Bench in the aforesaid case. By its order dated 24/03/2015, the
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Hon'ble Supreme Court held that by earlier interim order dated 02/04/2007, the operation of the judgment of the Division Bench had been stayed. The effect of the said interim order was that the aforesaid Act continued to be in force. In the meanwhile, there has been amendments made to the Act, the validity of which was also considered before this Court. In the circumstances, the Hon'ble Supreme Court has deferred the hearing of the Civil Appeal arising out of the Division Bench of this Court referred to above, until this Court renders a decision on the validity of the amendments made to the Act. A direction has also been issued to this Court to expedite hearing and to conclude the same as soon as possible so that the Hon'ble Supreme Court would have the benefit of the views of this Court. A Division Bench of this Court (Dharwar Bench) has considered the matter and has allowed the writ petitions. The judgment of the Division Bench is reported in Maha Ganpati Shankara Devasthana, Sirsi and others vs. State of Karnataka and others [2016 (1) AKR 503] (Maha Ganpati Shankara Devasthana, Sirsi). Therefore, the Act continues to be in force while the validity of the
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amendment made to the Act is pending consideration before this Court.
19. It is noted that the impugned Government Order dated 12/08/2008 has been passed by the State Government after the first interim order passed by the Hon'ble Supreme Court, staying the operation of the judgment of the Division Bench of this Court, as a result of which, the Act continued to remain in force. During the pendency of the matter before the Hon'ble Supreme Court, when the representation was made by Upadivanta Mandala to His Excellency the Governor of Karnataka, President's Rule was in force in the State, as also when the representation was made by Mutt on 12/04/2008. After the elected Government assumed office on 30/05/2008, the impugned Government Order dated 12/08/2008 has been issued.
20. As already noted, the BPT Act was inter alia applicable to the areas under the present Uttara Kannada District which was a part of erstwhile Bombay State. The
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said Act was made to regulate and make better provision for the administration of the Public Religious and Charitable Trusts in the erstwhile State of Bombay. The said Act continued to apply to those districts of the State, which were formerly part of erstwhile Bombay State.
21. The vires of the said Act was also challenged before this Court in the case of Sri Sringeri Nelamau Samsthanam, Heror, Siddapur Taluk, Uttara Kannada vs. State of Karnataka and Others [ILR 1998 Kar 1532] (Sri Sringeri Nelamau Samsthanam, Heror, Siddapur Taluk, Uttara Kannada). The precise question was whether the BPT Act was in its application to what are known as Bombay - Karnatak Areas of the present day State of Karnataka was unconstitutional, being discriminatory and offensive of Article 14 of the Constitution. The matter was heard and decided by Hon'ble Thakur J., as His Lordship then was in this Court. After analysing the scheme of the BPT Act, in paragraph Nos.16 and 17 of the judgment, His Lordship examined as to whether the BPT Act satisfied the requirement of a valid classification and observed that after
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re-organisation of the State of Karnataka, BPT Act has continued as if the same was enacted by the State of Karnataka. That, if for historical reasons there was existence of different laws in different regions of the State, after re-organisation of the State, the continued application of such diverse laws shall have to be justified on some other rational basis. In other words, the classification of Maths (Mutts) and other charitable institutions in the Bombay - Karnatak Areas, for the purpose of applying to them, a legal scheme, which is materially different from the ones prevalent in any other part of the State, must not only be based on a rational differentia between institutions established in Bombay - Karnataka Areas, as against those established in other parts of the State, but such a classification must bear a rational nexus with the object sought to be achieved by the impugned enactment. After observing so, His Lordship observed as under:
"20. Now if the object of the Bombay Act is to provide for better administration of the trusts in the State, as indeed is the position even with the other four enactments applicable to other regions, then there is no reason why Maths and similar other
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institutions established and functioning in the Bombay Karnataka area alone should be subjected to the type of regulatory and other controls, while similar institutions for instance in old Mysore areas of the State, do not suffer such control. It is nobody's case that maths in Bombay Karnataka areas are in any way different from those that are established in the other part of the State. The concept of maths owes its origin to 8th Century A.D. when the great Hindu thinker and reformer Adi Shankaracharya established four maths in the four corners of the Indian Peninsula, namely, Kalika Math at Dwarka in the West, the Joytir math at Badrinath in the North, the Goverdhan math at Jagannath in the East and the Sarda Math at Sringeri (Mysore) in the South. These maths were meant to inculcate knowledge of the Shastras and the Vedas from generation to generation. They were centres of learning established to perpetuate Vedanta and strengthen the Doctrine of Non-dualistic Philosophy which Shankara preached. In due course, similar other maths and institutions were established in other parts of country also which have flourished, from one generation of gurus to the other. The purpose and the philosophy underlying these institutions continues to be to impart religious education and train scholars for preparation of the tenets of Hindu religion. It is not therefore possible to distinguish one math from the other on the basis of any rational
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or intelligible differentia. They are all religious centres with no philosophical or functional difference, capable of providing a sound basis for a valid classification distinguishing one group from the other. Except the historical reasons, by which maths in Bombay Karnataka areas were treated differently by the law, there is no other reason why that differential treatment should continue qua similar institutions in other parts of the State, historical reasons could but temporarily justify such treatment. That justification has, worn out with passage of time, without a uniform law having been brought to remove the inequalities. The Bombay Act in the above backdrop violates the equal protection clause contained in Article 14, and is therefore unconstitutional in its application to the State of Karnataka.
21. In the result, this petition succeeds and is hereby allowed, and the Bombay Public Trusts Act, 1950, in its application to the State of Karnataka is struck down as unconstitutional. The respondents shall stand restrained from taking any steps or action against the petitioner trust on the strength of the provisions of the said Act. The parties are however left to bear their own costs."
Thus, the application of the BPT Act in the State was struck down as unconstitutional. The State was restrained
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from taking any stay order against the petitioner - Trust therein on the strength of provision of the BPT Act. The aforesaid judgment has attained finality. Subsequently, Notification has been issued by the State Government on 19/03/2004 to the effect that the provisions of the Charitable and Religious Trusts Act, 1920 shall be applicable to the Bombay-Karnataka Areas where the BPT Act was applied.
22. As already stated, it is an admitted fact that the Temple in question was registered under the provisions of the BPT Act and therefore, became a Notified Institution under Section 23 of the Act. The deletion of the Temple from the List of Notified Institutions and subsequent handing over the same to the respondent - Mutt is the pivot of controversy in these writ petitions.
Submissions:
23. We have heard learned senior counsel, Sri S.S.Naganand and Sri Subramanya Jois for some of the petitioners, party-in-person Sri L.P.Mutaguppi and other counsel for the petitioners, learned Advocate General along
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with High Court Government Pleader, appearing for the State, and learned senior counsel Sri A.G.Holla and Sri K.G.Raghavan along with instructing counsel for respondents. We have perused the material on record as well as the original record.
Submission on behalf of petitioners:
24. Learned senior counsel, Sri S.S.Naganand, appearing for the petitioners in W.P.No.30609/2008 submitted in detail the facts leading up to the issuance of Government Order dated 12/08/2008 and also made submissions as to why the said order is not in accordance with law. According to him, the Temple was registered under the provisions of BPT Act and it is on that basis, it was notified as a Notified Institution under Section 23 of the Act. That in fact, the father of the second petitioner was appointed as a Trustee - Muktesar on the basis of heredity, way back in the year 1957. That even after the Act was enforced on 30/04/2003, father of the second petitioner continued as a hereditary Managing Trustee of the Temple. He died on 03/11/2004 and that the second petitioner has
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assumed the role of hereditary Managing Trustee while the first petitioner is the deity represented by the hereditary Managing Trustee. That in fact, the second petitioner had challenged the vires of the Act in W.P.No.50846/2004. The said writ petition was dismissed by order dated 17/10/2005. The Upadivanta Mandala had also filed a suit against the second petitioner admitting that he was the hereditary Trustee in the management and administration of the Temple. Therefore, petitioners have sought reliefs on the aforesaid basis in the writ petitions filed by them.
25. Learned senior counsel submitted that the pontiff of the respondent - Mutt had also challenged notification issued under the Act in W.P.No.20961/2005 and that there was also a challenge made to the Act itself before this Court and while the learned single Judge held it to be intra vires, the Division Bench held the same to be ultra vires the Constitution and struck it down including the notifications issued under the said Act by judgment dated 08/09/2006. Subsequently, the State Government by order dated 17/11/2006 appointed the Assistant Commissioner, Kumta
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Sub-Division, Kumta, as an Executive Officer of the Temple. The petitioners herein challenged the said appointment and this Court, having regard to the administration of the Temple by the second petitioner, granted an interim order of status quo on 12/12/2006. By order dated 19/12/2006, the said interim order was extended until further orders. He submitted that when the matter stood thus, S.L.P.No.5398/2007 was filed by the State challenging the judgment of the Division Bench dated 08/09/2006 and initially the Hon'ble Supreme Court stayed the judgment of the Division Bench of this Court and the Act was enforced. Thereafter, on 12/07/2007, the interim stay was modified to the effect that Section 25 of the Act only would remain stayed. Subsequently, there has been an order of the Hon'ble Supreme Court dated 24/03/2015 clarifying that by virtue of the order of stay granted by it, the Act is in force.
26. Learned senior counsel submitted that in the meanwhile, Justice Rama Jois, Former Judge of this Court submitted a Report on 13/09/2007 on the amendments required to be made to the Act.
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27. Thereafter, the Upadivanta Mandala made a representation to the State Government seeking handing over of the Temple to the respondent - Mutt. The said representation is dated 01/02/2008. The Deputy Commissioner, Uttara Kannada District, by his letter dated 01/04/2008 addressed to the Commissioner, Endowments opined that the Temple being a public Temple could not be handed over to a private Mutt situated at Shimoga District, as the Act did not provide for the same. On 12/04/2008, respondent - Mutt made a representation seeking handing over of the Temple to it, but the Legal Cell of Government of Karnataka (Revenue Department) opined that as the matter was seized by the Hon'ble Supreme Court and hence, no denotification could take place. In fact, on 14/05/2008, the Secretary Revenue Department addressed a letter to Commissioner, Endowments rejecting his representation for deletion of the Temple from Government Notification dated 30/04/2003 (01/05/2003) stating that the Legal Cell of the Government had opined that Temples could not be denotified and that the matter had been
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considered by the Government. On 27/05/2008, Secretary, Revenue Department of the State, again addressed a letter to the Commissioner, Endowments requesting him not to denotify any Temple. Consequently, the Commissioner, Endowments addressed a letter to the Deputy Commissioner, Uttara Kannada District that in view of the opinions expressed, no recommendation should be sent for denotification of the Temple.
28. Learned senior counsel further submitted that after the end of President's Rule in the State and the elected Government assuming office, opinion was taken from learned Advocate General for the State of Karnataka as to whether it was permissible to denotify the Temple. Learned Advocate General by his opinion dated 24/07/2008, advised that it could be done so. Thereafter, on 12/08/2008, the order denotifying the Temple and handing over the management and administration to the respondent - Mutt was issued which is impugned in these writ petitions. In fact, there was a further communication between the Deputy Commissioner, Uttara Kannada District
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and Commissioner, Endowments on the effect of Government Order dated 12/08/2008 vis-à-vis the order of status quo passed by this Court on 12/12/2006 and continued thereafter and as to whether the order of this Court would come in the way of handing over the Temple to the Mutt. Consequently, the State Government on 16/08/2008 withdrew order dated 17/11/2006 appointing the Assistant Commissioner as Executive Officer of the Temple and on that basis W.P.No.17580/2006 filed by the petitioners was dismissed as withdrawn. In fact, this order is challenged in W.A.No.6083/2009.
29. Learned senior counsel further submitted that subsequently, respondent - Mutt by its letter dated 19/08/2008, written to the Tahsildar, Kumta, requested that as the pahani in respect of the Temple stood in the name of the second petitioner's father as the earlier hereditary Moktesara (Trustee), the revenue records be mutated in the name of respondent - Pontiff of the Mutt pursuant to Government Order dated 12/08/2008. But this Court by interim order passed in W.P.No.31026/2008
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stayed further proceeding regarding mutation of the revenue records in the name of the Pontiff of the Mutt (in W.P.No.31026/2008) holding that the Temple was a public Temple under the BPT Act.
30. Learned senior counsel also submitted that CCC No.2020/2009 has been filed by the second petitioner initiating contempt of Court proceedings against certain officers of the State with regard to passing of impugned Government Order dated 12/08/2008 in violation of the interim orders dated 12/12/2006 and 19/12/2006 passed in W.P.No.17580/2006.
31. Subsequently, State Government issued Notification dated 29/09/2012 re-notifying the Temple with effect from 01/05/2003, wherein the Temple was once again noted at Sl.No.92. Subsequently, on 16/03/2013, another Notification has been issued by the State Government making an amendment to the Notification by which the Temple has been deleted pursuant to Order dated 12/08/2008 impugned in these writ petitions.
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32. After referring to the aforesaid facts, learned senior counsel submitted that the State had no power to delete the Temple from the List of Notified Institutions. According to him, under Section 23 of the Act, the State Government has published a Notification in respect of each revenue district, a List of inter alia, all Hindu Religious Institutions registered under the BPT Act, which are in receipt of monthly or annual grant from public revenue or any amount under the Karnataka Certain Inams (Abolition) Act, 1977. That the Temple being a Hindu Religious Institution registered under the BPT Act was rightly notified as a Notified Institution under Section 23 of the Act. According to him, there is no provision under the Act for deletion of a Temple once it is notified under Section 23 of the Act, as a Notified Institution. Further, when the State Government had rightly notified Gokarna Temple as a Notified Institution under Section 23(e) of the Act, there was no reason for deletion of the said Temple from the said Notification. The Temple was never attached to the respondent - Mutt, the latter being outside the purview of the Act. In fact, there was no challenge made by any
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person to the inclusion of the Temple as a Notified Institution as per Government Notification dated 30/04/2003 effective form 01/05/2003. When that being the position, there was no rationale or reason for deletion of the Temple from Government Notification dated 30/04/2003. Further, learned counsel submitted that the real reason for deleting the Temple from Government Notification dated 30/04/2003 was to hand over the same to the management and administration of the respondent - Mutt on the premise that the Temple was attached to the Mutt, which is an erroneous premise.
33. Learned senior counsel, Sri Naganand further submitted that the impugned Government Order was issued even in the absence of power on the part of the State Government to delete the Notified Institution from the Government Notification issued under the provisions of Section 23 of the Act. Further, the State Government has no power to handover a Notified Institution to the management of a private Mutt. He submitted that the impugned Government order dated 12/08/2008 was issued
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at the instance of representations made by Upadivanta Mandala and the respondent - Pontiff of the respondent - Mutt and that, for a mere asking the Temple was handed over to the respondent - Mutt without any application of mind on the legal front and in the absence of there being any power to do so.
34. In this context, learned senior counsel has placed reliance on pleadings in W.P.No.20961/2005 filed by the respondent - Pontiff, through his General Power of Attorney Holder, challenging Government Notification dated 30/04/2003 (01/05/2003) issued by the State Government in so far it related to certain Institutions mentioned in paragraph No.3 of the said writ petition. That the respondent - Pontiff had categorically stated that (a) Sri Ramadeva Bankuli Matha, Siddapura, Uttara Kannada; (b) Sri Raghottama Matha, Gokarna, Kumata Taluk, Uttara Kannada; (c) Sri Narasimhadeva Matha, Apsarakonda, Honnavar, Uttara Kannada; (d)Sri Ramakrishna Kalika Matha, Ambagiri, Sirsi, Uttara Kannada; (e) Sri Swayambhu Devalaya, Kadatoka, Honnavara, Siddapura; (f) Sri Batte
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Vinayaka Devalaya Kekkaru, Honnavar, Uttara Kannada, are attached to the Mutt right from time immemorial. Further, (g) Sri Durgadevi Devalaya, Devimane, Sirsi, Uttara Kannada; (h) Sri Mahalingeshwara Devalaya, Uppale, Kadle village, Honnavara, Uttara Kannada; (i) Sri Siddivinayaka Temple, Karva and (j) Sri Devi Mane Temple, Kitre, Bhatkal, are Institutions under the management of the Mutt for a long time with the approval of the authority under the BPT Act. But the Gokarna Temple in question does not find a place in the list of Temples attached to the respondent - Mutt or under the management of the said Mutt so as to seek deletion from the Notification dated 30/04/2003 (01/05/2003) as a Temple attached to the Mutt. When the respondent - Pontiff representing the Mutt did not include the Temple in question in the pleadings in W.P.No.20961/2005 by seeking deletion of the same from Notification dated 30/04/2003 (01/05/2003), the State Government could not have handed over the Temple in question to the respondent - Mutt on the premise that it was a Temple attached to the Mutt. He submitted that W.P.No.20961/2005 has been
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disposed off by this Court on 26/09/2006, in view of the Division Bench striking down the Act. According to learned senior counsel, in view of the clear admission emerging from the pleadings in W.P.No.20961/2005, by the impugned Government Order dated 12/08/2008, the State Government could not have handed over the Temple in question to the Mutt on the premise that it was a Temple attached to the Mutt.
35. He further submitted that the impugned order dated 12/08/2008 being issued on the strength of the opinion of the learned Advocate General is of no assistance to the respondents as the opinion of the learned Advocate General was obtained without bringing to his notice three important aspects: firstly, the fact that an affidavit was submitted before the Hon'ble Supreme Court in the SLP (thereafter converted as Civil Appeal) filed by the State Government that it would not delete any Temple from Government Order dated 30/04/2003 (01/05/2003); secondly, the learned Advocate General was not informed of the fact that the object of seeking deletion of Temple from
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aforesaid Government Notification pertaining to Notified Institutions was for the purpose of handing over the same to the respondent - Mutt as if it is a Temple attached to the Mutt; thirdly, interim order of status quo dated 12/12/2006, subsequently extended on 19/12/2006 until further orders, passed in W.P.No.17580/2006 was also not brought to the notice of the learned Advocate General. Learned senior counsel argued that had the aforesaid three aspects were brought to the notice of the learned Advocate General, his opinion would have been different.
36. He submitted that when the State Government had filed an affidavit before the Hon'ble Supreme Court that it will not delete any Temple from the List of Notified Institutions, the Temple in question could not have been deleted. Further, without there being any enquiry held as to whether the Gokarna Temple was indeed attached to the respondent - Mutt, the same has been handed over to the Mutt. Also Government Order dated 12/08/2008 is in violation of the order of status quo granted by this Court in W.P.No.17580/2006 which was in force on 12/08/2008.
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37. He submitted that while the Officers in the Uttara Kannada District were conscious of these orders, and they advised against deletion of Temple from the List of Notified Institutions, but the officers at Bengaluru, took a contrary decision by issuing the impugned order, which was at the bidding of the then Chief Minister, by drawing our attention to the File Notings.
38. He thus argued that the impugned order would have to be struck down on the ground of lack of competence in the State Government to delete a Temple from the List of Notified Institutions under Government Order dated 30/04/2003 (01/05/2003) for the purpose of handing over to the respondent-Mutt and further, that the Government Order was issued by non-application of mind to the provisions of the Act and by ignoring the order of status quo passed by this Court and the undertaking given to the Hon'ble Supreme Court. Even if for a moment, it is to be presumed that the State Government has competence to denotify a Temple for valid reasons, in the present case, the Temple has been notified only for the purpose of handing
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over the same to the respondent - Mutt, which is an illegal act, according to learned senior counsel for the petitioners.
39. Relying on certain decisions of the Hon'ble Supreme Court, learned senior counsel submitted that the writ petitions and writ appeals namely, W.P. No.30609/2008, W.P.No.11734/2008, W.P.No.12612/2008, W.P.No.14097/2008, W.P.No.21206/2008, be allowed by quashing the impugned Government Order dated 12/08/2008 and by granting the reliefs sought for by the petitioners.
40. Learned senior counsel Sri Subramanya Jois appearing for the petitioner in W.P. No.31026/2008 while reiterating the facts and contentions, submitted that Gokarna Temple being governed by the provisions of BPT Act became a Notified Institution on the enforcement of the Act as per Section 23 (e) of the Act. Once the Temple was notified by the State Government by Notification dated 30/04/2003 (01/05/2003), the State Government became functus officio vis-à-vis its powers under Section 23 of the
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Act. Hence, it had no power to denotify or delete the Temple from the List of Notified Institutions. That insofar as Notified Institutions are concerned, under Section 24 of the Act, provision is made for appointment of the Chief Controlling Authority, who is none other than the Commissioner, Endowments and the Deputy Commissioner is the immediate controlling authority. Further, under Section 25 of the Act, subject to any general or special order of the State Government, a Committee of Management has to be constituted comprising of nine members in respect of one or more Notified Institutions as may be prescribed and different authorities may be prescribed in respect of different class or classes of Notified Institutions. But in the case of Gokarna Temple, a Committee of Management has not been constituted as the Temple was governed under the provisions of BPT Act and thereafter, interim order of status quo was passed by this Court on 12/12/2006 in Writ Petition No.17580/2006, which was continued thereafter till it was dismissed. Therefore, according to learned senior counsel, the Temple in question
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could not have been deleted by the State Government from the List of Notified Institutions.
41. Learned senior counsel further pointed out the lacuna in the advice given by the Advocate General appearing for the State by contending that there is no provision under the Act for deletion of the Temple from the List of Notified Institutions. Hence, there was no competence with the State Government to delete the Temple from the said List. He further submitted that the Temple has never been managed by the respondent - Mutt nor is it a Temple attached to the Mutt. That the exercise of power in the instant case has been at the behest of the representation made by Upadivanta Mandala as well as by respondent - Mutt and that the exercise of power in the instant case resulting in the impugned order dated 12/08/2008 is arbitrary and illegal as the State Government could neither delete the Temple from the List of Notified Institutions nor could it handover the management of respondent - Mutt.
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42. Learned senior counsel submitted that the State of Karnataka was under President's Rule and on 30/05/2008, the elected Government assumed office and President's Rule was revoked. Thereafter, the matter was taken up in a quick pace and the impugned order dated 12/08/2008 was issued, although earlier, His Excellency the Governor of the State had rejected the representation made by the Upadivanta Mandala. Later, the very same representation was entertained at the instance of the then Chief Minister.
43. He also referred to the writ petition filed by the Mutt in W.P.No.20961/2005 assailing Notification dated 30/04/2003 (01/05/2003) in which the respondent - Mutt did not mention about Gokarna Temple being attached to the Mutt and therefore, did not seek deletion of the Temple from the List of Notified Institutions. Learned senior counsel further submitted that in the absence of there being any reason for deletion of the Temple from the List of Notified Institutions, the State Government could not have reviewed nor modified its own order dated 30/04/2003
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(01/05/2003). Further, he submitted that if there was any mismanagement of the Temple, the State Government on being satisfied on a report of the Commissioner, Endowments could have declared such institution to be subject to the regulation under Chapter VIII of the Act by notifying it as a Declared Institution under Section 42 of the Act and then the administration of the Temple would have vested in the State Government to be regulated in the manner provided under the Act. Relying on certain decisions, he submitted that the impugned order dated 12/08/2008 may be quashed and the writ petition be allowed. Learned senior counsel relied upon certain decisions, which shall be discussed later.
44. Sri Narayana Rao, learned counsel appearing for the petitioner in W.P.No.11734/2008 also supported the contentions of other learned senior counsel appearing for the petitioners and contended that impugned order dated 12/08/2008 is in violation of the status quo order passed by this Court on 12/12/2006 and subsequently extended by this Court. He further submitted that the impugned
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Government Order is an arbitrary and illegal exercise of power for an improper purpose.
45. Sri L.P.Mutaguppi, an advocate practicing at Dharwad Bench of this Court has filed W.P.No.14097/2008 as a Public Interest Petition and has argued as party-in- person by adopting the arguments of other learned senior counsel for the petitioners. He has submitted that impugned order dated 12/08/2008 is illegal as it is not in accordance with law and the same may be quashed.
46. Sri Abhinav Ramanand, learned counsel appearing in W.P.No.12612/2008 submitted that, under the Act there is no power to delete a Temple from the List of Notified Institutions. Hence, such a power of denotification of the Temple could not have been exercised by the State Government. He submitted that the issuance of Notification under Section 23 of the Act is only a ministerial act and purely statutory in nature as under the said Section, the State Government has to notify in respect of each revenue districts a List of Charitable Institutions and Hindu Religious Institutions and other institutions governed under various
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enactments in different parts of the State. He submitted that the object of the Act is to apply an uniform law throughout the State of Karnataka vis-à-vis Hindu Charitable Institutions and Religious Institutions, which were hitherto being governed by various enactments as applicable to the respective parts of the State which was re- organized on 01/11/1956 under the provisions of the States Re-organization Act, 1956. That the State Legislature enacted the Act so as to notify all Temples which were being governed by the respective enactments in order to uniformly apply the Act to them.
47. He further submitted that Government Notification dated 30/04/2003 (01/05/2003) has been issued under Section 23 of the Act notifying the Institutions, which has been gazetted, but the impugned order dated 12/08/2008, which deletes Gokarna Temple from the Notified Institutions has not been gazetted and also it is not in the form of a Notification. He submitted that the form in which the Notified Institutions are notified
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and the manner of exercise of power under Section 23 of the Act are equally important.
48. Also, in the absence of there being any power to delete or denotify a Temple from the List of Notified Institutions under the Act, the State Government has also not referred to Section 21 of the General Clauses Act for exercising power in the instant case. He submitted that if the power has been exercised under Section 21 of the General Clauses Act, then there is no compliance with Section 30 of the said Act as the impugned notification has not been gazetted in the manner notification dated 30/04/2003 (01/05/2003) has been notified.
49. He further submitted that the State Government could not have, without there being any basis, handed over the Temple to the Mutt as there is no power under the Act to do so and in the absence of there being any power, the State Government did not have the competence to do so. He submitted that if the State Government was satisfied that there was mismanagement in the Temple, then Chapter VIII of the Act could have been enforced and the
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Temple could have been declared as a Declared Institution under Section 42 of the Act and the effect of such a declaration as envisaged under Section 44 of the Act could have been enforced and the administration of the Temple could have vested in the State Government to be regulated in accordance with the Act.
50. Learned counsel, Sri Abhinav Ramanand also drew our attention to the earlier writ petition filed by the respondent - Pontiff in W.P.No.20961/2005, wherein there was no prayer sought for denotification or deletion of the Gokarna Temple from the List of Notified Institutions. Hence, the principles of estoppel would apply in the instant case and the respondent - Pontiff could not have made representation to seek handing over of the Temple to the Mutt as if it was Temple attached to the Mutt. Learned counsel submitted that transfer of the Gokarna Temple to the respondent - Mutt on the basis of the representations made by Upadivanta Mandala and the respondent - Pontiff is without basis and without holding an enquiry and is an instance of arbitrary exercise of power. Drawing our
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attention to various correspondences in this regard, he submitted that His Excellency the Governor of the State had rejected the proposal, but once President's Rule in the State was revoked on 30/05/2008, then soon thereafter, impugned order dated 12/08/2008 has been issued.
51. He further submitted that, in substance, the impugned order declares that the Gokarna Temple was attached to the Mutt. That such a declaration could not have been given under the impugned order. That such a declaration could have been sought by the respondent - Mutt only under the provisions of Section 34 of the Specific Relief Act by filing a civil suit, which has also been observed by the Division Bench of this Court in W.A.No.5131/2008. Learned counsel submitted that in the instant case there being colourable exercise of power in violation of salutary principles of Administrative Law, the impugned order may be quashed.
Submission on behalf of respondents:
52. Per contra, Sri A.G. Holla, learned senior counsel appearing for respondent - Mutt submitted that
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W.P.No.30609/2008 and connected writ petitions which are filed as public interest litigations are devoid of any public interest in them. That petitioner No.1, in W.P. No.30609/2008 is stated to be a Public Trust, which has the petition filed through the deity and represented by petitioner No.2 stated to be hereditary Trustee, although he has not been appointed as a hereditary Trustee at all under the provisions of BPT Act. He submitted that this Court, in the case of Sri Sringeri Nelamau Samsthanam, Heror, Siddapur Taluk, Uttara Kannada, has struck down the applicability of the said Act in the State of Karnataka. Therefore, petitioner No.2 can no longer claim to be a hereditary trustee so as to be appointed under the provisions of the BPT Act. He submitted that father of petitioner No.2 was appointed as a Managing Trustee under Section 47 of the BPT Act, but now that BPT Act is no longer applicable in the State and the Act being enforced with effect from 01/05/2003, petitioner No.2 cannot claim to be a Managing Trustee of the Temple.
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53. He further submitted that even the Act was struck down by the Division Bench of this Court and pursuant to the interim order passed by the Hon'ble Supreme Court, the provisions of the Act are in force. Therefore, learned senior counsel for the respondent emphasized the fact that petitioner No.2 cannot claim himself to be a hereditary trustee. That a total misrepresentation has been made by petitioner No.2 and on the sole ground of misrepresentation being made to this Court, the writ petition ought to be dismissed by not exercising any discretion in favour of the petitioners. He submitted that when petitioner No.2 is not a hereditary trustee appointed under the provisions of the BPT Act, which in any case does not apply to the State of Karnataka, he could not have maintained the writ petition on that basis or status. That the writ petition is fraught with suggestio falsi and suppression veri and filed with an intention to play fraud on this Court by misleading it and such petitions must be dismissed in limine.
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54. He further submitted that the contention of the petitioners that impugned order dated 12/08/2008 was issued by the State Government during the operation of interim order dated 12/12/2006 in W.P.No.17580/2006 is also not a valid argument as the said interim order is a nullity, as petitioner No.2 herein could not have maintained the aforesaid petition also.
55. Learned senior counsel further submitted that Gokarna Temple was erroneously included in the List of Notified Institutions. That it was not receiving any monthly or annual grant from public revenue and therefore, only those institutions, which were receiving grant, were notified under Section 23 of the Act. That as the Temple was wrongly notified in the Government Notification dated 30/04/2003 (01/05/2003), the order dated 12/08/2008 has been issued by the State Government and hence, the State Government was justified in deleting the Gokarna Temple from the List of Notified Institutions.
56. Drawing our attention to letter dated 01/02/2008, learned senior counsel submitted that the said
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letter highlights the nexus and connection between the Gokarna Temple and the Mutt and it is on that basis that the State Government decided to handover the Temple to the Mutt after deletion of the Temple from the List of Notified Institutions.
57. Learned senior counsel also referred to the exchange of correspondence between the Secretary, Department of Revenue with the Commissioner, Endowments and other Revenue Authorities in the District and submitted that the said correspondence in file Notings have no significance as they have not been communicated to any person and so long as the decision is not communicated to any person, it is not a decision in law. He submitted that every decision must be communicated to the concerned person, otherwise the decision does not get crystallized into an executive action or an order in the eye of law. Learned senior counsel emphasized that the initial file Notings, which have not been culminated into an order and which are not communicated to the person concerned would have no effect. Therefore, any thinking on the part
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of the Government not to denotify the Temple and hand it over to the respondent - Mutt can have no significance at all after passing of order dated 12/08/2008.
58. He further submitted that Gokarna Temple is a Temple attached to the Mutt and hence, the State Government by deleting the Temple from the List of Notified Institutions restored its status quo ante and there can be no challenge to the said order. He submitted that though the Temple may have been handed over to the respondent - Mutt, its property is with the deity and not with the Mutt. The properties of the Temple are not vested in the Mutt, it is only the management of the Temple, which is now under the control of the Mutt. Learned senior counsel contended that although the question as to whether the Gokarna Temple is a Temple attached to the Mutt has not been determined and the Division Bench in W.A.No.5131/2008 has opined that the said question would have to be determined by a civil Court, but when the State Government has decided that the Temple is attached to the Mutt and on that basis has deleted the Temple from the List
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of Notified Institutions and handed it over to the Mutt, then the view of the State Government must be approved by Courts. In this regard, learned counsel submitted that when two views are possible, the one in favour of the Government must be approved by Courts.
59. Learned senior counsel also submitted that when there is no express provision conferred on the State Government or any statutory authority under a specific Act, then Section 21 of a General Clauses Act would apply and therefore, the State Government has rightly acted on the strength of the said Section while deleting Gokarna Temple from the List of Notified Institutions and handed over the Temple to the respondent - Mutt as the Temple was always attached to the Mutt. He submitted that there can be no vacuum in exercise of power by the State Government and assuming that Section 21 of the General Clauses Act also does not apply, then under the parens patriae power, the State has rightly exercised its discretion, which cannot be adjudicated upon by this Court by relying on certain decisions of the Hon'ble Supreme Court. Learned senior
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counsel sought for dismissal of the writ petitions challenging Government Order dated 12/08/2008 and consequential reliefs.
60. Replying to the contention of learned senior counsel for the petitioners that the State had no power or competence to delete the Temple from the List of Notified Institutions under the provisions of the Act, learned senior counsel contended that the State has exercised its parens patriae power in order to protect the interest of the Temple by deleting the Temple from Notification dated 30/04/2003 (01/05/2003). In other words, the State Government has inherent power to take action whenever the need arises.
61. He also submitted that whenever there are disputed questions of fact, the matter would have to be adjudicated before the Civil Court and in the instant case, the petitioners have disputed the fact that the Temple is attached to the respondent - Mutt and therefore, they would have had to approach the Civil Court and not file these writ petitions by challenging the impugned order dated 12/08/2008 as the State Government by issuing the
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said order has accepted the position that the Temple was attached to the Mutt.
62. Learned senior counsel further emphasized the fact that petitioner No.2 in W.P.No.30609/2008 cannot claim to be a hereditary Trustee as no person can hold office on the basis of heredity as Article 15(1) of the Constitution expressly bars any right conferred by birth. Therefore, petitioner cannot claim to be a hereditary trustee on the basis of Section 47 of the BPT Act. If at all he could be a trustee, who could be appointed under the provisions of the said Act, now as the said Act has no application in Karnataka, petitioner No.2 cannot even claim to be a trustee of the Temple.
63. Respondent No.5 - pontiff has been represented by learned senior advocate, Sri Raghavan. He, at the outset submitted, whether the entire gamut of writ petitions filed by various petitioners is in public or in private interest has to be adjudicated upon. That these writ petitions have been filed only to advance the case of petitioner No.2 - B.V. Dixit. That the public interest litigations are devoid of any
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public interest and they have been filed only with a private and oblique interest. That on the basis of the prayer sought for by the petitioners, who have filed the writ petitions apparently in public interest, Government Order dated 12/08/2008 cannot be quashed by this Court. He further submitted that many a times, the High Court would not interfere in a public interest litigation despite there being an illegality in exercise of power by the State Government if, over the years, there has been an improvement in the situation. In this regard, learned senior counsel pointed to the fact that in the last ten years the Mutt has taken control of the Temple and has improved the Temple in myriad ways. Therefore, the status of the Temple has now improved. He further submitted that what the State Government has done by the impugned order dated 12/08/2008 was to restore the status quo ante. He submitted that the Gokarna Temple was always under the control and management of respondent - Mutt. Somehow, it got notified under Section 23 of the Act. That the State Government was right in handing over the management of the Temple to the Mutt. Even otherwise, the question as to
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whether the Temple is a Temple attached to the Mutt or not is a disputed question of fact. The Division Bench of this Court in W.A.No.5131/2008, has stated that such disputed questions of fact would have to be adjudicated before the Civil Court. Therefore, if the petitioners are challenging the fact that Gokarna Temple is not a Temple attached to respondent - Mutt, they would have had to approach the Civil Court and get a declaration to that effect.
64. Learned senior counsel further contended that the litigations before this Court have been engineered by petitioner No.2 and his acquaintances. He drew our attention to the close relationship between B.V.Dixit and other petitioners. He contended that the petitioners have an axe to grind against respondent Nos.5 and 6 and these writ petitions have been filed to promote their own vested interest. That public interest is conspicuous by its absence in the public interest litigations. In fact, it is a basket of conflicting rights. This Court ought to identify the larger public interest involved in these cases in handing over the Temple to the respondent - Mutt rather than looking at the
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illegality in the order. He submitted that the larger public interest in these cases is that the interest of the Gokarna Temple has been better served pursuant to Government Order dated 12/08/2008 and that the respondent - Mutt on taking control of the Temple has put in place several systems for improving the status of the Temple for the benefit of the devotees. That this Court may not exercise discretion in favour of the petitioners. That under Article 226 of the Constitution, every illegality would not call for interference or issuance of writ of certiorari, was the submission of learned senior counsel.
65. Learned senior counsel further submitted that there are two components to Government Order dated 12/08/2008. The first is, rectification of Notification dated 30/04/2003 (01/05/2003). The reasons are found in the order itself as Gokarna Temple was erroneously included as a Notified Temple under Section 23 of the Act. Therefore, it became necessary to denotify or delete it from the List of Notified Institutions. Secondly, since the Temple has always been attached to the Mutt, the Government thought
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it fit to restore the status quo ante and handover the Temple to the control of respondent - Mutt. That there have been several Temples, which have been denotified and that the deletion of Gokarna Temple from the List of Notified Institutions is not an isolated case. He submitted that Section 23 of the Act would not apply to a case where the Temple is attached to a Mutt. This is having regard to Section 1 (4) of the Act, which is now rephrased as proviso to Section 1 of the Act.
66. Sri Raghavan, learned senior counsel further submitted that religious rights are recognized under the Constitution and they have to be protected by the State. The State has to discharge its constitutional duty in handing over Temples attached to the Mutts. That there is no illegality or mala fides in exercise of power by the State Government by issuance of Government Order dated 12/08/2008. That the State Government is fully justified in handing over Gokarna Temple to respondent - Mutt. In fact, although Gokarna Temple was registered under the provisions of BPT Act, nevertheless, the respondent - Mutt
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was always in constant touch with father of petitioner No.2 in W.P.No.30609/2008 (B.V.Dixit). That Damodar Dixit, father of B.V.Dixit was authorized to manage the Temple by the respondent - Mutt. That Damodar Dixit was appointed as a hereditary Trustee after the demise of his father i.e., grandfather of B.V.Dixit, which was by order dated 31/03/1960. That B.V. Dixit's father, Damodar Dixit was qualified to succeed to the trusteeship on the death of B.V.Dixit's grandfather. In fact, B.V.Dixit's grand-father used to write to the respondent - Mutt with regard to managing of affairs of the Temple. According to learned senior counsel, the Temple has always been under the management of respondent - Mutt is not at all in dispute.
67. Drawing our attention to the order passed by the Hon'ble Supreme Court in the special leave petition, challenging the maintainability of the public interest litigations before this Court, learned senior counsel submitted that the Hon'ble Supreme Court has kept open the question of maintainability of the petitions and also all contentions arising from the judgment passed in
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W.A.No.5131/2008 are also kept open. He further submitted that the challenge made to Government Order dated 12/08/2008 is not for the first time in these cases. That earlier, the said Government Order had been challenged and this Court has not interfered in the matter. Therefore, the writ petitions filed in the form of public interest litigation, which in any case lack bona fides as they are motivated and filed with a vendetta, cannot be the basis for reconsidering the validity of Government Order dated 12/08/2008. Learned senior counsel drew our attention to the fact that series of litigations before this Court have been engineered by various vested interests. That, writ petitions have been filed before this Court as well as before Dharwad Bench of this Court and that they are all based on identical pleadings, all emanating from a group of individuals who are behind these cases and hence, the writ petitions would have to be dismissed en masse as having no basis at all. Relying on certain decisions of the Hon'ble Supreme Court, learned senior counsel appearing for respondent - Pontiff sought dismissal of the writ petitions.
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68. At this stage itself, it may be noted that public interest litigations had to be filed only before the Principal Bench of the High Court i.e., at Bengaluru and not before the Dharwad Bench, while private interest litigations had to be filed in accordance with the Notification issued by the Hon'ble Chief Justice identifying territorial jurisdiction of the two Benches and therefore, before the Dharwad Bench of the High Court.
69. Learned Advocate General appearing for the State submitted that records pertaining to the issuance of the impugned Government Order dated 12/08/2008 are original records being filed before this Court and that this Court may on perusal of the same, consider the rival contentions and pass appropriate orders in the matter. Of course, objection was taken by learned senior counsel for the petitioners, Sri Naganand, with regard to the stand now taken by the learned Advocate General representing the State by now distancing itself from Government Order dated 12/08/2008 without expressly saying so, but on the other hand, the other Government had supported the same
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in the statement of objections filed on behalf of the State. Learned senior counsel, Sri Naganand, submitted that the State ought to be frank in making submissions before this Court vis-à-vis the validity of Government Order dated 12/08/2008 impugned in these writ petitions, by not having an attitude of "sitting on the fence".
70. Learned senior counsel, Sri S.Vijay Shankar, appearing for Upadivant Mandala - respondent No.1 in W.P.No.12612/2008 contended that the Upadivant Mandala had made a representation for transfer of the Temple to the Mutt and by Government Order dated 12/08/2008, it has been done, which is by legal and valid exercise of power. He has also sought to add a new angle to the case by contending that the Act was enforced with effect from 01/05/2003 and that State Government could not have issued Notification under Section 23 of the Act prior to that date i.e., on 30/04/2003 and hence, the said Notification cannot be construed to be a valid Notification. But this aspect was clarified by learned senior counsel, Sri Jois by drawing our attention to Notification dated 29/09/2012 by
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which the Notification dated 30/04/2003 has been given effect to, from 01/05/2003. He further submitted that on 16/03/2013, another Notification has been issued deleting the Temple from the earlier Notification dated 30/04/2003 (01/05/2003), vide Government Order dated 12/08/2008 impugned in these writ petitions. Therefore, the controversy as to whether Government Order dated 30/04/2003 could have been issued prior to the enforcement of the Act would no longer survive for further consideration.
71. Learned senior counsel appearing for Upadivanta Mandala next contended that the validity of Government Order dated 12/08/2008 has been upheld in earlier orders passed by this Court and that these writ petitions would have to be dismissed on the ground of res judicata by placing reliance on Explanations 3 and 4 to Section 11 of the Code of Civil Procedure, 1908 (CPC).
72. Prior to commencement of reply arguments by petitioners' counsel, learned senior counsel, Sri A.G. Holla, appearing for respondent - Mutt sought our permission to
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make further submissions in the matter and we permitted him to do so. He reiterated that petitioner No.2 in W.P.No.30609/2008 has through-out made false averments and that the writ petitions filed by him or filed by others for his benefit are liable to be dismissed. He further submitted that the State Government has considered handing over of the Temple to the respondent - Mutt. The said decision must be sustained by this Court as there is now a vacuum in the operation of BPT Act as far as State of Karnataka is concerned, pursuant to the judgment of learned single Judge of this Court to the effect that the said Act, being discriminatory, cannot be applied to the erstwhile Bombay - Karnatak Areas of the State. Therefore, B.V. Dixit cannot claim to be a hereditary trustee under the provisions of the BPT Act and hence, the Temple cannot be run by any hereditary Trustee.
73. By way of reply, learned senior counsel, Sri Naganand submitted that B.V. Dixit's family has been looking after the affairs of the Temple as they have been hereditary trustees. That B.V.Dixit - petitioner No.2 in
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W.P.No.30609/2008 is an interested person and that his father, Vigneshwara Damodar Dixit and his grand-father, Damodar Dixit, were hereditary Trustees appointed under the provisions of the BPT Act. That petitioner No.1 - deity is represented by petitioner No.2 - B.V. Dixit; even if it is to be assumed that he is not a Trustee of the Gokarna Temple, he could represent the deity. This is because, even respondent - Mutt has accepted the ancestors of petitioner No.2 as hereditary trustees and therefore, irrespective of petitioner No.2 being appointed as hereditary Trustee, he could continue to represent the deity. He further submitted that Section 26 of the Act has been amended. Therefore, if the Government Order dated 12/08/2008 is struck down, the status quo ante would be restored, the Temple would become a Notified Institution and all the provisions of the Act would apply including those relating to hereditary Trustees.
74. He submitted that the judgment passed by the Division Bench in W.A.No.5131/2008 was in a case filed by two Upadivantas. That writ petition was a collusive in
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nature. The said writ petition was filed at the instance of the respondent - Mutt and Pontiff. That the observations of the Division Bench in W.A.No.5131/2008 holding that it is for the Civil Court to determine as to whether the Gokarna Temple is attached to the Mutt or not has not been disturbed in W.P.Nos.62831-62833/2010, which were filed subsequently, challenging the judgment passed in W.A.No.5131/2008. He stated that the respondent - Mutt took a stand that the Temple is attached to the Mutt and that it was for the said Mutt to establish the said fact. The State Government, without ascertaining the same or in the absence of there being a finding given by a competent Court of law, could not have deleted the Temple from the List of Notified Institutions and simultaneously handed over the same to the respondent - Mutt by the impugned order dated 12/08/2008. That the State Government has not considered any material whatsoever to come to a conclusion that Temple was attached to the Mutt and therefore, the same must be handed over to the Mutt. He submitted that correspondence with Sri Gunda Jois is not credible and could not be the basis for holding that Gokarna
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Temple was attached to the Mutt in the absence of the same being tested before any Court of law. That the State Government has completely by-passed His Excellency Governor's decision in the matter and simply handed over Gokarna Temple to the Mutt without there being any Cabinet decision to that effect. That the said decision is at the instance of the then Chief Minister who assumed office on 30/05/2008 and the matter which had attained a quietus was resurrected and started gaining momentum thereafter. He drew out attention to the correspondence between various authorities, which took place in May 2008 and the thinking of the authorities then and as to how the same took a volte face leading to the issuance of the impugned order dated 12/08/2008 by placing reliance on the file Notings.
75. Learned senior counsel contended that the impugned order has been passed by the State Government in total violation of the interim order granted by this Court on 12/12/2006 in W.P.No.17850/2006 and in fact, the concerned officers, who were responsible for issuing the impugned order have tendered their unconditional apology
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to this Court by way of affidavits in the contempt of Court cases filed, which have been delinked from this batch of cases.
76. Learned senior counsel further submitted that any Government Order must speak for itself and cannot be supported by subsequent affidavits and submissions, especially when the file Notings are contrary to the Government order dated 12/08/2008. Learned senior counsel submitted that the State Government cannot act as if it was distributing largesse by handing over the Temple in question to respondent No.6 - Mutt i.e., from a public domain to a private domain and as a consequence of the Government Order dated 12/08/2008, the Act would not apply to the Temple. He submitted that even if the contentions of the learned senior counsel for the respondents are to the effect that these public interest litigations have been got up or set up before this Court, this Court would have to examine what is the real and substantial public interest involved in the petitions and thereafter, consider the same in accordance with law
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irrespective of who has filed the petitions. That once this Court identifies the public interest which have to be addressed in a public interest litigation, the petitioners would no longer be significant. What is significant is the aspect of public interest in the writ petitions and not the petitioners. He submitted that public interest writ petitions can only be filed before the Principal Bench at Bengaluru and therefore, these public interest writ petitions have been filed in Bengaluru. Learned senior counsel, relying on certain judgments, sought for allowing the writ petitions by quashing the impugned order dated 12/08/2008.
77. Learned senior counsel, Sri Jois, in his reply submitted that the Hon'ble Supreme Court has not set aside the order passed by the Division Bench of this Court holding that the writ petitions filed by way of public interest were maintainable. In fact, it has observed in the affirmative, on the question of maintainability of the writ petitions by dismissing the special leave petitions. He submitted that the writ petitions are maintainable and that they are in public interest. Further, pursuant to the order passed by the
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Hon'ble Supreme Court, in W.P.No.11734/2008, Misc.W.9772/2010 has been filed on 05/10/2010 seeking deletion of the prayer for handing over the Temple to B.V.Dixit and that no order has been passed on the said application. That the public interest litigations are confined to only the other prayer namely, on the validity of Government Order dated 12/08/2008. In view of exclusion of the second prayer in the public interest litigation, as observed by the Hon'ble Supreme Court, the same may be excluded or eschewed and the validity of the Government Order dated 12/08/2008 may only be considered.
78. Learned senior counsel, Sri Jois, further submitted that W.P.No.30609/2008 filed by two upadivantas was a collusive one and a tailor-made petition, which had been engineered by respondent - Mutt and its Pontiff. That the said writ petition was dismissed without issuance of notice to the respondent - Mutt. Even then, in W.A.No.5131/2008 filed against the dismissal of the said writ petition, the Mutt sought to produce voluminous documents in an attempt to establish that Gokarna Temple
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was attached to the Mutt. That did not impress the Division Bench and it held that the same could be agitated only before a Civil Court as it is a disputed question of fact and hence, did not give any finding on that aspect of the matter. That the respondent - Mutt has not filed any suit till date seeking such a declaration and therefore, presently, there is no finding in favour of the respondent - Mutt to the effect that Gokarna Temple is attached to the said Mutt. Learned senior counsel submitted that in such circumstances, the State Government could not, by the impugned order dated 12/08/2008, have transferred the said Temple to the Mutt on the premise that it was attached to the Mutt. He also submitted that the writ petitions may be allowed.
79. Sri Abhinav R., also submitted that the judgment in W.A.No.5131/2008 passed by the Division Bench of this Court is binding on the respondent - Mutt and reiterating his earlier contentions he sought for allowing of the writ petitions.
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80. Sri Mutaguppi, party-in-person in W.P.No.14097/2008 drew our attention to the fact that under Section 78 of the Act, BPT Act has been repealed and re-enacted by virtue of Sections 8 and 24 of the General Clauses Act, which is a relevant aspect of the matter in the instant case. That even after the repeal of the BPT Act under Section 78 of the Act, there is no vacuum as it has been re-enacted under the provisions of the Act. Of course, the question remains to be answered with regard to the striking down of the provisions of the BPT Act vis-à-vis its applicability to Karnataka State and the implication of proviso to Section 78 of the Act. He also sought for allowing of his writ petition.
Points for consideration:
81. Having heard learned senior counsel and learned counsel for the respective parties as well as learned Advocate General and learned Government Pleader for the State, the following points would arise for our consideration:-
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1. Whether Writ Petition Nos.11734/2008, 14097/2008 and 12612/2008 filed as Public Interest Litigations (PIL) are maintainable? If so, whether the said writ petitions could be considered on merits?
2. Whether the State Government had power or competence to delete Gokarna Temple from the List of Notified Institutions vide Government Notification dated 30/04/2003 (01/05/2003) issued under Section 23 of the Act?
3. Assuming that the State Government had power/competence to issue Government Order dated 12/08/2008 by deleting Gokarna Temple from Notification dated 30/04/2003 (01/05/2003), could it have exercised its power for handing over the same to the respondent - Mutt on the premise that the Temple was attached to the Mutt? Whether the said order is legal and valid?
4. If the answer to point No.3 is in the negative, what follows?
5. What order?
Before answering the aforesaid points, it would be necessary to recapitulate certain undisputed facts. That, under Section 23 of the Act, the Temple was included in the List of Notified Institutions in the Notification dated
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30/04/2003 issued by the State Government. The reason as to why the Temple was notified under Section 23 of the Act was on account of the fact that any Hindu Religious Institution registered under the BPT Act, which is in receipt of any monthly or annual grant from public revenue had to be included as a Notified Institution. There is no dispute about the inclusion of Gokarna Temple as a Notified Institution on the basis of Section 23(e) of the Act as there is no challenge to the same.
82. The vires of the Act as well as the Notification dated 30/04/2003 were challenged before this Court and a learned single Judge of this Court dismissed the writ petitions. The same was assailed before the Division Bench which, by its judgment dated 08/09/2006 struck down the Act holding it to be unconstitutional. In the special leave petition filed by the State against the said judgment, the Hon'ble Supreme Court has stayed the judgment of the Division Bench of this Court by order dated 08/09/2006. Subsequently, by another order dated 24/03/2015, the Hon'ble Supreme Court has observed that despite the judgment of the Division Bench by virtue of its interim order
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dated 02/04/2007, the Act is in force. It was on 12/08/2008, that the impugned Government order was passed. It is in Kannada language and it reads as under:
"PÀ£ÁðlPÀ ¸ÀPÁðgÀzÀ £ÀqÀªÀ½UÀ¼ÀÄ «µÀAiÀÄ B GvÀÛgÀ PÀ£ÀßqÀ f¯ÉèAiÀÄ PÀĪÀÄmÁ vÁ®ÆèPÀÄ, UÉÆÃPÀtð ²æà ªÀĺÁ§¯ÉñÀégÀ zÉêÀ¸ÁÜ£ÀªÀ£ÀÄß C¢ü¸ÀÆavÀ ¸ÀA¸ÉÜUÀ¼À ¥ÀnÖ¬ÄAzÀ ºÉÇgÀvÀÄ¥Àr¹ ²æà gÁªÀÄZÀAzÁæ¥ÀÅgÀ ªÀÄoÀzÀ ¦ÃoÁ¢ü¥ÀwUÀ½UÉ ªÀ»¹PÉÆqÀĪÀ §UÉÎ.
G¯ÉèÃR B 1. ¸ÀPÁðgÀzÀ C¢ü¸ÀÆZÀ£É ¸ÀASÉåB PÀAE 77 ªÀÄĸÉë 2003 ¢£ÁAPÀB 30.4.2003.
2. zsÁ«ÄðPÀ zÀwÛ DAiÀÄÄPÀÛgÀªÀgÀ ¥ÀvÀæ ¸ÀASÉåB KPÀgÀÆ¥À ±Á¸À£À/¹Dgï 45/07-08 ¢£ÁAPÀB14.5.2008 ºÁUÀÆ 21.06.2008. ¥Àæ¸ÁÛªÀ£ÉB ªÉÄÃ¯É NzÀ¯ÁzÀ PÀæªÀÄ ¸ÀASÉåB(1)gÀ C¢ü¸ÀÆZÀ£ÉAiÀÄ°è gÁdåzÀ°è£À 34,245 zÉêÀ¸ÁÜ£ÀUÀ¼À£ÀÄß C¢ü¸ÀÆavÀ ¸ÀA¸ÉÜUÀ¼À£ÁßV ¸ÀPÁðgÀªÀÅ ¥ÀæPÀn¹gÀÄvÀÛzÉ.
GvÀÛgÀ PÀ£ÀßqÀ f¯Éè, PÀĪÀÄmÁ vÁ®ÆèPÀÄ, UÉÆÃPÀtð ²æà ªÀĺÁ§¯ÉñÀégÀ zÉêÀ¸ÁÜ£À ªÀÄvÀÄÛ CzÀgÀ ¥ÀjªÁgÀ zÉêÀgÀÄUÀ¼À zÉêÁ®AiÀÄzÀ DqÀ½vÀªÀ£ÀÄß ¥ÀgÀA¥ÀgÁUÀvÀªÁV £ÀqÉzÀÄ §AzÀ ¥ÀzÀÞwAiÀÄAvÉ ²æà gÁªÀÄZÀAzÁæ¥ÀÅgÀzÀ ¦ÃoÁ¢ü¥ÀwUÀ¼À ªÀiÁUÀðzÀ±Àð£À DzÉñÀUÀ½UÉ C£ÀÄUÀÄtªÁV PÁ¯Á£ÀÄPÁ®PÉÌ £ÀqɸÀ®Ä ºÁUÀÆ ²æà PÉëÃvÀæzÀ ¸ÀªÀðvÉÆêÀÄÄRzÀ C©üªÀÈ¢ÞUÁV ¸ÀzÀj zÉêÀ¸ÁÜ£ÀªÀ£ÀÄß ²æà gÁªÀÄZÀAzÁæ¥ÀÅgÀ ªÀÄoÀPÉÌ ªÀ»¹PÉÆqÀ®Ä ²æà PÉëÃvÀæ UÉÆÃPÀtð G¥Á¢üªÀAvÀ ªÀÄAqÀ¼ÀzÀ CzsÀåPÀëgÀÄ ¢£ÁAPÀB 1.2.2008gÀ ªÀÄ£À«AiÀÄ°è PÉÆÃjgÀÄvÁÛgÉ ªÀÄvÀÄÛ ²æà gÁªÀÄZÀAzÁæ¥ÀÅgÀ ªÀÄoÀzÀ DqÀ½vÁ¢üPÁjUÀ¼ÀÄ ¸ÀºÀ ¢£ÁAPÀB 12.4.2008 ºÁUÀÆ 8.5.2008gÀ°è ªÀÄ£À«UÀ¼À£ÀÄß ¸À°è¹, ¸ÀzÀj zÉêÀ¸ÁÜ£ÀzÀ DqÀ½vÀ ¤ªÀðºÀuÉAiÀÄ£ÀÄß ²æêÀÄoÀPÉÌ
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¸ÀA¥ÀÇtðªÁV ªÀ»¹PÉÆlÄÖ vÀ£ÀÆä®PÀ ²æà PÉëÃvÀæ UÉÆÃPÀtðzÀ ¸ÀªÀðvÉÆêÀÄÄR C©üªÀÈ¢ÞUÉ ²æà ªÀÄoÀªÀÅ ±Àæ«Ä¸À®Ä C£ÀĪÀÅ ªÀiÁrPÉÆqÀ®Ä PÉÆÃjgÀÄvÁÛgÉ.
zsÁ«ÄðPÀ zÀwÛ DAiÀÄÄPÀÛgÀÄ F §UÉÎ PÀĪÀÄmÁ vÀºÀ¹Ã¯ÁÝgï, PÀĪÀÄmÁ G¥À«¨sÁUÁ¢üPÁjUÀ¼ÀÄ ºÁUÀÆ GvÀÛgÀ PÀ£ÀßqÀ f¯Áè¢üPÁjUÀ½AzÀ ªÀgÀ¢UÀ¼À£ÀÄß ¥ÀqÉzÀÄ ¸ÀPÁðgÀPÉÌ ¥Àæ¸ÁÛªÀ£ÉAiÀÄ£ÀÄß ¸À°è¹gÀÄvÁÛgÉ.
F zÉêÀ¸ÁÜ£ÀªÀÅ GvÀÛgÀ PÀ£ÀßqÀ f¯ÉèAiÀÄ°èzÀÄÝ, F »AzÉ F ¥ÀæzÉñÀzÀ°è£À zÉêÀ¸ÁÜ£ÀUÀ¼À DqÀ½vÀªÀ£ÀÄß ¨ÁA¨É ¸ÁªÀðd¤PÀ fªÉÄäU¼ À À PÁAiÉÄÝ 1950 gÀ£ÀéAiÀÄ ¤ªÀð»¸À¯ÁUÀÄwÛzÀÄÝ, F PÁAiÉÄÝAiÀÄ£ÀéAiÀÄ J¯Áè zÉêÀ¸ÁÜ£ÀUÀ½UÉ £ÉÆÃAzÀt ªÀiÁr¸ÀĪÀÅzÀÄ PÀqÁØAiÀĪÁzÀÝjAzÀ CzÀgÀAvÉ ²æà ªÀĺÁ§¯ÉñÀégÀ zÉêÀ¸ÁÜ£ÀªÀ£ÀÄß ¸ÀºÀ £ÉÆÃAzÀt ªÀiÁrgÀĪÀÅzÀÄ PÀAqÀħgÀÄvÀÛzÉ. ¢£ÁAPÀB 1.5.2003 jAzÀ eÁjUÉ §AzÀ PÀ£ÁðlPÀ »AzÀÆ zsÁ«ÄðPÀ ¸ÀA¸ÉÜUÀ¼ÀÄ ªÀÄvÀÄÛ zsÀªÀiÁðzÁAiÀÄ zÀwÛUÀ¼À PÁAiÉÄÝ 1997 ¸ÉPÀë£ï 23 (E) gÀ£ÀéAiÀÄ F »AzÉ £ÉÆÃAzÀtÂAiÀiÁVzÀÝ J¯Áè ¸ÀA¸ÉÜUÀ¼À£ÀÄß C¢ü¸ÀÆavÀ ¸ÀA¸ÉÜUÀ¼À°è ¥ÀæPÀn¸À¨ÉÃPÉA¢zÀÝjAzÀ ²æà ªÀĺÁ§¯ÉñÀégÀ zÉêÀ¸ÁÜ£ÀªÀ£ÀÄß ¸ÀºÀ C¢ü¸ÀÆavÀ ¸ÀA¸ÉÜUÀ¼À ¥ÀnÖAiÀÄ°è ¸ÉÃj¸À¯ÁVgÀÄvÀÛzÉ.
DzÀgÉ PÁAiÉÄÝAiÀÄ ¸ÉPÀë£ï 1(4) (i)gÀ ¥ÀæPÁgÀ MAzÀÄ ªÀÄoÀPÉÌ CxÀªÁ CzÀPÉÌ ¸ÉÃjzÀ MAzÀÄ zÉêÀ¸ÁÜ£ÀPÉÌ F PÁAiÉÄÝAiÀÄÄ C£Àé¬Ä¸ÀvÀPÀÌzÀÝ®è JA¢gÀÄvÀÛzÉ. UÉÆÃPÀtð ²æà ªÀĺÁ§¯ÉñÀégÀ zÉêÀ¸ÁÜ£ÀªÀÅ »AzÉ ²æà gÁªÀÄZÀAzÁæ¥ÀÅgÀ ªÀÄoÀzÀ DqÀ½vÀ ªÁå¦ÛUÉ M¼À¥l À Ö ¸ÀA¸ÉÜ JA§ ªÀÄ£À«AiÀÄ »£É߯ÉAiÀÄ°è zÉêÀ¸ÁÜ£ÀªÀ£ÀÄß C¢ü¸ÀÆavÀ ¸ÀA¸ÉÜUÀ¼À ¥ÀnÖ¬ÄAzÀ PÉÊ ©qÀ§ºÀÅzÉ JA§ §UÉÎ gÁdåzÀ CqÉÆéÃPÉÃmï d£ÀgÀ¯ïgÀªÀgÀ C©ü¥ÁæAiÀÄ ¥ÀqÉAiÀįÁV, F zÉêÀ¸ÁÜ£ÀªÀ£ÀÄß C¢ü¸ÀÆavÀ ¸ÀA¸ÉÜUÀ¼À ¥ÀnÖ¬ÄAzÀ ºÉÇgÀvÀÄ¥Àr¸À§ºÀÅzÉAzÀÄ C©ü¥ÁæAiÀÄ ¤ÃrgÀÄvÁÛgÉ ªÀÄvÀÄÛ PÁ£ÀÆ£ÀÄ E¯ÁSÉAiÀÄÄ ¸ÀºÀ CqÉÆéÃPÉÃmï d£ÀgÀ¯ïgÀªÀgÀ C©ü¥ÁæAiÀÄPÉÌ ¸ÀºÀªÀÄvÀ ªÀåPÀÛ¥Àr¹gÀÄvÀÛzÉ.
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gÁdå CqÉÆéÃPÉÃmï d£ÀgÀ¯ï gÀªÀgÀ C©ü¥ÁæAiÀÄ ºÁUÀÆ PÁ£ÀÆ£ÀÄ E¯ÁSÉAiÀÄ C©ü¥ÁæAiÀĪÀ£ÀÄß ¸ÀPÁðgÀzÀ ºÀAvÀzÀ°è ¥Àj²Ã°¹ F PɼÀPÀAqÀAvÉ DzÉò¹zÉ.
¸ÀPÁðgÀzÀ DzÉñÀ ¸ÀASÉåB PÀAE 56 ªÀÄÄD© 2008, ¨ÉAUÀ¼ÀÆgÀÄ, ¢£ÁAPÀB 12.08.2008 PÀ£ÁðlPÀ »AzÀÆ zsÁ«ÄðPÀ ¸ÀA¸ÉÜUÀ¼ÀÄ ªÀÄvÀÄÛ zsÀªÀiÁðzÁAiÀÄ zÀwÛUÀ¼À C¢ü¤AiÀĪÀÄ 1997gÀ ¸ÉPÀë£ï 1(4) (i) gÀ ¥ÀæPÁgÀ "MAzÀMAzÀÄ ªÀÄoÀPÉÌ CxÀªÁ CzÀPÉÌ ¸ÉÃjzÀ MAzÀÄ zÉêÀ¸ÁÜ£ÀPÉÌ F PÁAiÉÄÝAiÀÄÄ C£Àé¬Ä¸ÀvÀPÀÌzÀÝ®"è JA¢gÀĪÀÅzÀjAzÀ ¸ÀPÁðgÀzÀ C¢ü¸ÀÆZÀ£É ¸ÀASÉåB PÀAE 77 ªÀÄĸÉë 2003 ¢£ÁAPÀB 30.4.2003 gÀ°è£À GvÀÛgÀ PÀ£ÀßqÀ f¯Éè, PÀĪÀÄmÁ vÁ®ÆèQ£À C¢ü¸ÀÆavÀ ¸ÀA¸ÉÜUÀ¼À ¥ÀnÖAiÀÄ ¥ÀÅl ¸ÀASÉå 734 PÀæªÀÄ ¸ÀASÉå 92 gÀ°è£À GvÀÛgÀ PÀ£ÀßqÀ f¯Éè, PÀĪÀÄmÁ vÁ®ÆèPÀÄ, UÉÆÃPÀtð ²æà ªÀĺÁ§¯ÉñÀégÀ zÉêÀ¸ÁÜ£À ªÀÄvÀÄÛ CzÀgÀ ¥ÀjªÁgÀ zÉêÀgÀÄUÀ¼À zÉêÀ¸ÁÜ£ÀUÀ¼À£ÀÄß C¢ü¸ÀÆavÀ ¸ÀA¸ÉÜUÀ¼À ¥ÀnÖ¬ÄAzÀ ºÉÇgÀvÀÄ¥Àr¹ DzÉò¹zÉ.
¸ÀzÀj zÉêÀ¸ÁÜ£ÀzÀ ¸ÀA¥ÀÇtð DqÀ½vÀªÀ£ÀÄß ²ªÀªÉÆUÀÎ f¯Éè ºÉǸÀ£ÀUÀgÀ ²æà gÁªÀÄZÀAzÁæ¥ÀÅgÀ ªÀÄoÀPÉÌ ºÀ¸ÁÛAvÀj¸À®Ä GvÀÛgÀ PÀ£ÀßqÀ f¯Áè¢üPÁjUÀ½UÉ ¸ÀÆa¸À¯ÁVzÉ.
PÀ£ÁðlPÀ gÁdå¥Á®gÀ DeÁÕ£ÀĸÁgÀ ªÀÄvÀÄÛ CªÀgÀ ºÉ¸Àj£À°è (J¯ï.J¸ï. ²æÃPÀAoÀ¨Á§Ä) ¦ÃoÁ¢üPÁj PÀAzÁAiÀÄ E¯ÁSÉ (ªÀÄÄdgÁ¬Ä)"
The same is in challenge in these writ petitions. As the English translation of the same has not been brought to our notice, the same does not find a place in this order.
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83. Subsequently, Notification dated 29/09/2012 was issued re-notifying the Notified Institutions for the purpose of Section 23 of the Act with retrospective effect from 01/05/2003. The reason being, that when the Act was enforced from 01/05/2003, the Notification issued under Section 23 of the Act could not have been with effect from 30/04/2003 i.e., prior to the enforcement of the Act. In fact, in the case of Devalaganagapur Narasimhasaraswathi Math, Ganagapura, before the Kalaburagi Bench of this Court, a learned single Judge quashed the Notification, which order was affirmed by a Division Bench in appeal. Subsequent to the disposal of the said writ petition, Notification dated 29/09/2012 was issued by the State Government having retrospective effect from 01/05/2003. The said matter is said to be pending before the Apex Court.
84. As already noted, the Act was struck down by the Division Bench of this Court on 08/09/2006. By interim order dated 02/04/2007, the Hon'ble Supreme Court has stayed the operation of the order of the High Court. The
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effect of the interim order is that, the Act continues to be in force. The State Legislature, thereafter, amended certain provisions of the Act by 2011 Amendment Act and by Act No.12/2012. The said amendments were assailed before the Dharwad Bench of this Court. By judgment dated 17/11/2015 in Maha Ganpati Shankara Devasthana, Sirsi, (supra), the Division Bench struck down the Karnataka Hindu Religious Institutions and Charitable Endowments (Amendment) Act, 2011 and Act No.12/2012 by the same name as being discriminatory and in violation of constitutional rights.
85. Further, on 16/03/2013 in exercise of the powers conferred by Section 23 of the Act read with Section 21 of the General Clauses Act, the State Government has amended Notification dated 29/09/2012, inter alia, in respect of Gokarna Temple, by referring to Government Order dated 12/08/2008, which is the subject matter of challenge in these writ petitions.
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Also, impugned Government Order dated 12/08/2008 has been issued during the operation of interim order dated 12/12/2006 passed in W.P.No.17580/2006.
86. We shall now consider the points for consideration in seriatim.
Re: Point No.1:
(1) Whether Writ Petition Nos.11734/2008, 14097/2008 and 12612/2008 filed as Public Interest Litigations (PIL) are maintainable? If so, whether the said writ petitions could be considered on merits?
87. W.P.No.11734/2008, W.P.No.12612/2008 and W.P.No.14097/2008 are stated to have been filed in public interest. They assail Government Order dated 12/08/2008. The maintainability of these writ petitions as public interest litigations was questioned by the respondent - Mutt. By order dated 22/03/2010, a Division Bench of this Court held that these writ petitions were maintainable in public interest after referring to several judgments of the Hon'ble Supreme Court. The said order was assailed by the State Government as well as by respondent - Mutt before the
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Hon'ble Supreme Court in SLP.Nos.13539-13541/2010 and connected matters and the Hon'ble Supreme Court has observed that the order of the Division Bench of this Court dated 22/03/2010 did not warrant any interference. Further, it opined that whatever observations may have been made in the said order by the Division Bench of this Court in the context of maintainability of public interest litigation, are not intended to be expression of any opinion or findings on the merits of the matter. Further, when it was pointed out to the Hon'ble Supreme Court that W.P.No.11734/2008 is in the nature of a private interest litigation, as one of the prayers (prayer No.2) in the said writ petition is for handing over of the Temple to respondent No.13, who is none other than petitioner No.2 in W.P.No.30609/2008 and that he and petitioner No.1 in W.P.No.11734/2008 are related, being nephew and uncle respectively, the Hon'ble Supreme Court opined, "if that is so, either the prayer that relates to private interest could be excluded or can be dismissed on that ground." Subsequent to the aforesaid observation made by the Hon'ble Supreme Court dated 01/10/2010, on 05/10/2010, Misc.W.
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No.9772/2010 has been filed in W.P.No.11734/2008 whereby, the prayer seeking handing over of the Temple to respondent No.13 in that writ petition on quashing of Government Order dated 12/08/2008 is sought to be deleted. There is no order passed as yet on the said application.
88. The contention of learned senior Counsel, Sri Subramanya Jois is, if prayer No.2 in the said writ petition is ordered to be deleted and the writ petition is confined only to prayer No.1, then the said writ petition would have to be construed as a public interest litigation.
89. In the circumstances, we direct prayer No.2 in W.P.No.11734/2008, which reads as, "The Administration of the Temple and the properties of the Temple - Sri Mahabaleshwara Devasthana at Gokarna is taken back from the custody of Sri Ramachandrapur Mutt and handed over back to the previous Administration, The Board of Trustees, presently to said Sri. Balachandra (R13) along with other eminent persons and direct the Math Respondent No.8 not to take over any other Temple on the basis of impugned
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Government Order" to be deleted. Accordingly, Misc. W.No.9772/2010 is allowed. The said writ petition is considered on par with W.P.No.12612/2008 and W.P.No.14097/2008.
90. As far as maintainability of the writ petitions as public interest litigations are concerned, this Court by order dated 22/03/2010 held that the writ petitions are maintainable. The said order has not been interfered with by the Hon'ble Supreme Court. In fact, the special leave petition filed by the State as well as the respondent - Mutt were dismissed by observing that any expression of opinion on findings on the merits of the Mutt given during the course of considering the question of maintainability of the public interest litigations would not have a bearing while considering the merits of the matter. The relevant portions of the order of the Hon'ble Supreme Court reads as under:
"The High Court has held that three petitions(W.P.Nos.11734/2008, 12612/2008 and 14097/2008 are maintainable as public interest
litigations. The said order is challenged by the State of
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Karnataka and by the Mutt which claims that Sri Gokarna Mahabaleshwara Temple is attached to it.
The limited issue that has been decided by the impugned order of the High Court is in regard to maintainability of public interest litigation in regard to the validity of the Government Order dated 12.8.2008, the order does not warrant any interference.
Lastly, it was pointed out that in one of the petitions, the prayer clearly showed that it was private interest litigation. If that is so, either the prayer that relates to private interest could be excluded or the writ petition can be dismissed on that ground.
We reiterate that as all issues are open for consideration, it is unnecessary to entertain the SLPs. Special leave petitions are dismissed."
91. The following judgments have been cited at the Bar on the maintainability of Public Interest Litigation:
(a) In Jaipur Shahar Hindu Vikas Samiti vs. State of Rajasthan and Others [2014 AIR SCW 3142], the challenge was to the constitution of a committee of management to administer the properties of a Math. The petition raised questions about properties of subject Math and mode of succession. The issue raised in the petition
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was also under enquiry before Assistant Commissioner, who had jurisdiction to adjudicate disputed questions of fact. In the circumstances, the Hon'ble Supreme Court held that a Public Interest Litigation was not maintainable and that in matters of religious institutions, particularly, public trusts and religious institutions which are governed by particular legislation which provide for a proper mechanism for adjudication of disputes relating to the properties of the trust and their management therefor, it not proper to entertain a Public Interest Litigation
(b) In D.N. Jeevaraj vs. Chief Secretary, Government of Karnataka and Others [(2016) 2 SCC 653], it has been observed that Public Interest Litigation directed against any particular organization or individual should be rarely entertained where other remedies are available and the petitioner should be encouraged to avail the same.
(c) After surveying the entire gamut of case law in State of Uttaranchal vs. Balwant Singh Chaufal and Others [(2010) 3 SCC 402], the Hon'ble Supreme Court
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issued several directions, in order to preserve the purity and sanctity of such litigation. In the said case, the Hon'ble Supreme Court has analyzed the origin and evolution of Public Interest Litigation in India and has opined Phase III of Evolution of Public Interest Litigation is with regard to maintaining probity, transparency and integrity in the governance of directions issued by the Courts. In that regard, the Hon'ble Supreme Court had discussed the cases of Vineet Narain and Others vs. Union of India and Another [AIR 1998 SC 889] ( Vineet Narain vs. Union of India); Rajiv Ranjan Singh "Lalan" (VIII) vs. Union of India [(2006) 6 SCC 613]; M. C. Mehta vs. Union of India [(2007) 1 SCC 110] and Centre for Public Interest Litigation vs. Union of India [(2003) 7 SCC 532]. The Hon'ble Supreme Court has further discussed about the abuse of process of Court in the name of Public Interest Litigation and it has held that, Court must encourage genuine and bona fide Public Interest Litigation and effectively discourage and curb Public Interest Litigation filed for extraneous considerations. It also held that the Courts should prima facie verify the credentials of
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the petitioner before entertaining a Public Interest Litigation and also be satisfied regarding the correctness of the contents of the petition before entertaining a Public Interest Litigation. Further the Court should also ensure that there is no personal gain, private motive or oblique motive behind a Public Interest Litigation.
(d) In M/s. Holicow Pictures Pvt. Ltd. vs. Prem Chandra Mishra and Ors [AIR 2008 SC 913], the Hon'ble Supreme Court has opined that public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. The Court must be careful to see that a body of persons or member of public, who approaches the Court is acting bona fide and not for personal gain or private motive or political motivation or other oblique considerations. Further, the Hon'ble Supreme Court has also stated that public interest litigation should not be "publicity interest litigation" or private interest
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litigation or "politics interest litigation" or the latest trend "paise income litigation."
In the said case, the challenge was to certain allotments of land made in favour of respondent No.4 therein by the State of Bihar for Industrial areas. The order notifying the said allotment, made by the Deputy Director of the Patna was set aside and the matter was remitted for fresh consideration.
92. One of the contentions raised by learned senior counsel for the respondent is that the instant Public Interest Litigations (PIL) are not maintainable. While normally Public Interest Litigations are social action litigations or for the benefit of/against administrative actions or for achieving certain affirmative actions, sometimes, public interest litigations are filed to redress a public wrong or injury arising out of a commission or omission on the part of the Administration i.e., the State or an Administrative authority, which is against law or the Constitution.
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93. Further, while exercising jurisdiction in public interest litigation, the constitutional Courts would exercise their powers only on proper persuasion that the issues raised in the petition are concerned with real and substantial interests of general public concern. Instances of the same are, when in such litigation, question would arise as to whether the authorities have acted in terms of nature and purpose of powers vested in them after due observance of due procedure; that powers granted to public authorities are not abused and/or exercised in frustration or derogation of the Constitution or the relevant statutes. These are all matters of public interest. Thus, constitutional and good governance is a matter of public interest, vide Vineet Narain vs. Union of India. Also, ventilation of grievances related to quality of governance are also facets of public interest litigations. Also, concerns raised in the petition must not be to further private interests in the guise of a public concern. Sometimes, where the cause of action is genuinely in the general public interest, the Court could relax the requirement of bona fides of the petitioner and appoint an amicus curiae to deal with the matter and keep the matter
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out of the power of original applicant. But public interest litigation cannot be a medium for settling disputes between individual parties or securing benefits to a particular section of people for furtherance of their personal rights. The Court would disapprove any attempt which projects a private concern as a PIL when no issue of Law or of public concern is traceable. Genuineness of the cause and its public interest espousal must both be shown. The litigation should not merely be a cloak for achieving private ends of a third party or the party bringing the petition. Thus, before taking any action in such litigations, the Court must be satisfied that its forum was not being misused by any person or persons or groups with a mala fide objective of vindication of their personal grievance or by resorting to blackmailing or considerations extraneous to public interest. Further, the cause or concern raised in the petition must be justiciable and capable of judicially redressed. The Court would intervene only when the executive is remiss in discharging its obligations under the Constitution or the law, as the essence of Rule of Law doctrine lies in the exercise of public power within constitutional limits by the
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executive. If the executive adopts a practice, which is in flagrant and systematic violation of constitutional limitations, then a member of public would have sufficient interest to challenge such practice, as the matter would fall within the correctional jurisdiction of the Court channeled by declaratory and certiorari remedies. [source:
Restatement of Indian Law: ROIL Public Interest Litigation §1.1 p4(2011)] (published by Supreme Court Project Committee on Restatement of Indian Law by The Indian Law Institute, New Delhi).
94. The following decisions are also apposite and could be relied upon in the instant case:
(a) In Chaitanya Kumar vs. State of Karnataka [AIR 1986 SC 825], the Hon'ble Supreme Court observed that the Court cannot close its eyes and persuade itself to uphold publicly mischievous executive actions which have been so exposed. When arbitrariness and perversion are writ large and brought out clearly, the Court cannot shirk its duty and refuse its writ. Advancement of the public interest and avoidance of the public mischief are the paramount
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considerations. As always the Court is concerned with the balancing of interests. Further, when arbitrariness, maladministration, mismanagement or other unbecoming conduct or act of the Government or a public authority comes to the notice of the Court, it is bound to take notice of it and issue appropriate directions in the matter.
(b) In Shiv Sagar Tiwari vs. Union of India [AIR 1997 SC 1483], exercise of discretion in a wholly illegal, mala fide and unconstitutional manner was quashed in a PIL.
(c) In D.Satyanarayana vs. N.T. Rama Rao [AIR 1988 AP 144], Andhra Pradesh High Court declared that the Chief Minister of the State had abused his official position in several matters. It was observed that PIL could be used for prevention of abuse of power and maintenance of rule of law and avoidance of public mischief, arbitrariness and advancement of public interest, which is a paramount consideration in judicial function. Thus, the concept of accountability of the executive to the public was emphasized in the said case.
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(d) In Padma vs. Hiralal Mohlal Desarda [AIR 2002 SC 3252], the Hon'ble Supreme Court observed that while hearing a public interest litigation the constitutional Court acts as the sentinel on the qui vive discharge its obligation as custodian of the constitutional morals, ethics and code of conduct, well defined by series of judicial pronouncements. The Court is obliged to see while scrutinizing the conduct and activities of a public body constituted with the avowed object of serving the society to see that its activities bear no colour except being transparent, are guided with the object of public good and are within the four corners of law governing the same. The holder of every public office holds a trust for public good and therefore, his actions should all be above board.
95. In the instant case, what has been assailed in the public interest litigations is Government Order dated 12/08/2008. The said Notification has been issued by the State Government for the purpose of deleting Gokarna Temple from the List of Notified Institutions under the Act and also handing over the Temple to the respondent - Mutt.
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Serious issues and contentions have been raised in the public interest litigations. There are also other litigations, which have been filed in private interest. They all seek to achieve the same end, namely, a challenge being made to Government Order dated 12/08/2008 and the action of the Government in deletion of Gokarna Temple from the List of Notified Institutions and handing over the same to the respondent - Mutt. We are of the view that the public interest litigations are maintainable as they assail administrative action on various grounds touching upon Gokarna Temple, which is a Public Temple, which has been handed over to a private Mutt.
96. In view of the above discussion, point No.1 is answered in the affirmative by holding that W.P.Nos.11734/2008, 12612/2008 and 14097/2008 are maintainable as Public Interest Litigations.
97. With regard to the other writ petitions, which have not been filed in public interest, submissions have been made on their maintainability also, and hence, we advert to the same herein at this stage itself.
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98. Learned senior counsel for respondent - Mutt submitted that petitioners in W.P.No.30609/2008 and connected writ petitions have made false representations before this Court and hence, they are not entitled to any relief, by placing reliance on a judgment of the Hon'ble Supreme Court in the case of Dr. Vijay Kumar Kathuria vs. State of Haryana and Others [AIR 1983 SC 622]. It was further contended that if a wrong or misleading statement is deliberately and willfully made by a party to a litigation with a view to obtain a favourable order, it would prejudice or interfere with due course of judicial proceeding and thus, amount to contempt of Court vide, B.Srinivasa Reddy vs. Karnataka Urban Water Supply & Drainage Board Employees' Assn. and Others [(2006) 11 SCC 731] (II). The dictum of the Hon'ble Supreme Court in the case of Union of India and Others vs. Ramesh Gandhi [(2012) 1 SCC 476], has been pressed into service to contend that judgments obtained by non- disclosure of all necessary facts tantamount, to judgment obtained by fraud. Such a judgment is null and void and it
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is to be treated as non est by every Court. In the said decision, reference has also been made to an earlier decision of the Hon'ble Supreme Court in the case of S.P. Chengalvaraya Naidu vs. Jagannath [(1994) 1 SCC 1].
99. We have already held that the public interest litigations are maintainable. We have also held and observed that writ petitions filed in public interest or in private interest, raise important issues in law as well as on facts. Further, the action initiated by the State Government under the Act culminating the issuance of the impugned Government Order dated 12/08/2008 have been questioned by the petitioners. We are of the considered view that, having regard to the issues raised in these writ petitions and the answer to be given to those issues, and the manner in which the reliefs sought for by the petitioners would be moulded, the writ petitions require to be considered on merits. This is bearing in mind the fact that, Gokarna Temple is a public Temple, a Notified Institution under the Act as it was being run as a public trust under the provisions of the BPT Act and further, the BPT Act not being
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applicable in the State of Karnataka, we find it necessary to consider the questions raised in those writ petitions by entertaining them also even though they are not filed in public interest, including W.P.No.30609/2008.
100. Having cleared the decks on the maintainability of the writ petitions, whether in public interest or private interest, we now proceed to consider the other points for consideration.
Re: Point No.2:
(2) Whether the State Government had power or competence to delete Gokarna Temple from the List of Notified Institutions vide Government Notification dated 30/04/2003 (01/05/2003) issued under Section 23 of the Act?
101. This point touches upon the competence of the State Government to issue Government Order dated 12/08/2008 impugned in these writ petitions. While considering the same, two questions require consideration:
the first is, with regard to power of the State Government to issue Government Order dated 12/08/2008; the second is, the form in which the deletion or exclusion of the Temple
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from the List of Notified Institutions has been made, namely, by issuance of impugned Government Order. On a reading of the said Government Order, two aspects become apparent: the first is the deletion of Gokarna Temple from Notification dated 30/04/2003 (01/05/2003), which has been issued under Section 23 of the Act. The second is, handing over the Temple to respondent - Mutt on the premise that the Temple is attached to the Mutt. Thus, the impugned Government Order is a composite order.
102. As already noted, Gokarna Temple was notified as item No.92 in the List of Temples in Kumta Taluk, Uttara Kannada District as a Notified Institution. Section 23, which deals with Notified Institutions reads as under:
"23. Notified Institutions.- The State Government shall as soon as may be after the commencement of this Act publish by notification in respect of each revenue district, a list of,-
(a) all charitable institutions and Hindu religious institutions which on the date of commencement of this Act are in the sole charge of the State Government or for the benefit of which,-
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(i) any monthly or annual grant in perpetuity is made from public revenues; or
(ii) tasdik allowance under section 19 of Mysore Religious and Charitable Inams Abolition Act, 1955 is paid;
(b) all institutions registered under the Book of Endowments under the Hyderabad Endowment Regulations, 1349F;
(c) all institutions governed by the then Madras Hindu Religious and Charitable Endowments Act, 1951;
(d) all institutions in Kodagu District which are governed by the Coorg Temple Funds Management Act, 1956;
(e) all Hindu religious Institutions registered under the Bombay Public Trust Act, 1950, which are in receipt of any monthly or annual grant from public revenue or any amount under the Karnataka Certain Inams (Abolition) Act, 1977;
(f) Sri Renuka Yellamma Temple, Saundatti, governed under the Renuka Yellamma Devasthana (Administration) Act, 1974." By virtue of Section 23 of the Act, Temples in respect of each revenue district falling under any of the Clauses (a) to (f) of the said Section have been notified as a Notified
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Institution. Thus, such a Temple becomes a Notified Institution by operation of law. For instance, if any institution/Temple has been governed by the Madras Hindu Religious and Charitable Endowments Act, 1951, or in Kodagu District, which is governed by the Coorg Temple Funds Management Act, 1956 or in the instant case, the Temple being registered under the BPT Act, receiving any monthly or annual grant from public revenue it would become a Notified Institution. On the basis of Section 23(e) of the Act, Gokarna Temple was included in the List of Notified Institutions, as the said Temple being a Hindu Religious Institution was registered under the BPT Act. Thus, the issuance of Notification under Section 23 of the Act is by virtue of operation of law i.e., the Act. The legislature has not given any discretion or leeway to the State Government in the matter of issuance of Notification with regard to Notified Institutions. If an institution falls under any of the clauses of (a) to (f), the State Government has to notify such an institution as a Notified Institution after the commencement of the Act by including the same in a Notification to be published by the State Government.
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Hence, by virtue of the Act, an institution becomes a Notified Institution under Section 23 of the Act. As already observed, there is no discretion with the State Government to exclude any institution, which falls under any of the clauses (a) to (f) of Section 23 of the Act at the time of issuance of such notification in exercise of powers under Section 23 of the Act. Conversely, there can also be no inclusion of a Temple as a Notified Institution, which is not coming within the purview of Section 23 of the Act.
103. However, by the impugned Government Order dated 12/08/2008, the Temple has been excluded from Government Notification dated 20/04/2003 (01/05/2003). The exclusion of the Temple from the aforesaid Government Notification is assailed by the petitioners on two counts:
firstly, that the State Government did not have the competence to do so. In other words, the first contention is, under Section 23 of the Act, the State does not have the power to exclude any Temple from the Notification pertaining to Notified Institutions. Secondly, that the exclusion of the Temple could not have been by a
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Government Order, as the inclusion was by virtue of a Notification issued under Section 23 of the Act.
104. Before answering the contentions, it would be useful to allude to the object and purpose of the Act. The object of the Act is to make better provision for the management and administration of Hindu Religious Institutions and Charitable Endowments in the State of Karnataka. The said Act has been made after repealing several enactments and re-enacting certain repealed enactments as if the said enactments are repealed and are enacted under the Act, by virtue of Sections 8 and 24 of the General Clauses Act, vide Section 78 of the Act. Be that as it may, in order to have a uniform law for the management and administration of the Hindu Religious Institutions and Charitable Endowments in the State, the Act has been enacted and for that purpose under Section 23 of the Act, those institutions which were governed under different enactments applicable to various parts of the State of Karnataka prior to its re-organisation have been notified by issuance of a Notification in respect of each revenue
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district and such Institutions are compendiously termed as a Notified Institutions. In fact, Chapter VI deals with the Notified Institutions and the provisions of the said Chapter pertain to the management of the Notified Institutions. Thus, Notification dated 30/04/2003 (01/05/2003) notifying the institutions under the Act is by virtue of the statute and not by exercise of discretion by the State Government. This is because, which Institutions have to be Notified Institutions has been determined by the State Legislature in the statute itself. Under clauses (a) to (f) of Section 23 of the Act, the State Government has no discretion to include any other institution as a Notified Institution except those, which fall within the scope of Clauses (a) to (f) of Section
23. By the same logic, it has no discretion to exclude any institution from the List of Notified Institutions. But the matter cannot be given a quietus by the aforesaid reasoning as in the instant case the State Government has deleted Gokarna Temple from the List of Notified Institutions issued under Section 23 of the Act by Government Notification dated 30/04/2003 (01/05/2003).
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105. Thus, the point to be considered herein is, whether, once the State Government has notified and has included an institution in the notification pertaining to Notified Institutions under Section 23 of the Act, it has power to delete or exclude such an Institution from the notification pertaining to Notified Institutions. The argument of learned senior counsel and learned counsel for the petitioners is that, the State Government does not have any such power, as the Act does not empower the State Government to do so. In this regard, it is also contended that the issuance of the Notification by the State Government is only a ministerial act in compliance with the statute and that the State Government is not empowered either to include or exclude any Institution once a Notification is published by it under the mandate of Section 23 of the Act. But the contention of learned senior counsel for the respondent - Mutt, Sri A.G. Holla is that, even if the Act does not contain any such provision, Section 21 of the General Clauses Act empowers the State Government to modify the List of Notified Institutions issued under Section 23 of the Act. Further, according to him, the State could
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also invoke its parens patriae power to issue the Government Order dated 12/08/2008.
106. Before answering these contentions, it would be necessary to reiterate that the categories of institutions which have to be notified as Notified Institutions under Section 23 of the Act are already determined by the State Legislature; any addition or deletion from the categories, which are in clauses (a) to (f) could only be made by an amendment to the Act by the State Legislature. Hence, the State Government cannot add to, or delete any category of Institution under Section 23 of the Act. But the pertinent point is, whether, within any category of Institutions mentioned in clauses (a) to (f) of Section 23 of the Act, the State Government has the power or competence to include any Institution as a Notified Institution on the premise that it falls within the category of clauses (a) to (f) and has not been included or, it could delete or exclude any institution from the Notification already issued dated 30/04/2003 (01/05/2003). In other words, whether, the State Government has the power to amend, vary or rescind the
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Notification issued pursuant to Section 23 of the Act. No doubt, under the provisions of the Act, no such express power is envisaged. But, can it be said that, the State Government is denuded of that power? It may be that the power of the State Government to amend, vary or rescind a Notification issued under Section 23 of the Act is conspicuous by its absence under the Act. In the circumstances, reliance has been placed on Section 21 of the General Clauses Act by the respondents to buttress their contention that the State Government is empowered to issue such a Notification. Thus, Section 21 of the General Clauses Act (Karnataka Act) would have to be considered in this context as has been submitted by learned senior counsel appearing for the respondent - Mutt.
107. Section 21 of the General Clauses Act in Karnataka is almost in pari materia with Section 21 of the Central Act. Section 21 reads as under:
"21. Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws.- Where, by any enactment, a power to issue notifications, orders, rules or bye-laws
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is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add, to amend, vary or rescind any notifications, orders, rules or bye- laws so issued."
108. In Shree Sidhbali Steels Limited and Others vs. State of Uttar Pradesh and Others [(2011) 3 SCC 193], it has been observed that by virtue of Sections 14 and 21 of the General Clauses Act, when a power is conferred on an authority to do a particular act, such power can be exercised from time to time and carries with it the power to withdraw, modify, amend or cancel the notifications earlier issued, to be exercised in the like manner and subject to like conditions, if any, attached with the exercise of the power.
Further, at Paragraph Nos.38, 39 and 40, it has been observed as under:-
"38. Section 21 is based on the principle that power to create includes the power to destroy and also the power to alter what is created. Section 21, amongst other things, specifically deals with power to add to,
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amend, vary or rescind the notifications. The power to rescind a notification is inherent in the power to issue the notification without any limitations or conditions. Section 21 embodies a rule of construction. The nature and extent of its application must be governed by the relevant statute which confers the power to issue the notification etc. However, there is no manner of doubt that the exercise of power to make subordinate legislation includes the power to rescind the same. This is made clear by Section 21. On that analogy an administrative decision is revocable while a judicial decision is not revocable except in special circumstances. Exercise of power of a subordinate legislation will be prospective and cannot be retrospective unless the statute authorises such an exercise expressly or by necessary implication.
39. The principle laid down in Section 21 is of general application. The power to rescind mentioned in Section 21 is without limitations or conditions. It is not a power so limited as to be exercised only once. The power can be exercised from time to time having regard to the exigency of time. When by a Central Act power is given to the State Government to give some relief by way of concession and/or rebate to newly- established industrial units by a notification, the same provision and such exercise of power cannot be faulted on the ground of promissory estoppel.
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40. It would be profitable to remember that the purpose of the General Clauses Act is to place in one single statute different provisions as regards interpretations of words and legal principles which would otherwise have to be specified separately in many different Acts and Regulations. Whatever the General Clauses Act says whether as regards the meaning of words or as regards legal principles, has to be read into every statute to which it applies....."
109. On a plain reading of Section 21, it could be inferred that the power to issue a Notification or order, rule etc., includes a power, to exercise in a like manner and subject to a like sanction and conditions (if any) to add, amend, vary or rescind any notification. If the aforesaid proposition is to be applied to the instant case, it would imply that if a Hindu Religious and Charitable Institution has been erroneously or inadvertently notified under Section 23 of the Act, although it does not fall under any of the categories mentioned in clause (a) to (f) of Section 23 of the Act, then the State Government has power to exclude such an Institution from the Notification containing List of Notified Institutions issued under Section 23 of the Act. The reason being that notifying institutions not falling
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under clauses (a) to (f) being inadvertent or erroneous, their exclusion may be permissible under Section 21 of the General Clauses Act in the absence of an express power under the Act. Therefore, the contention of learned senior counsel for respondents that on the strength of Section 21 of General Clauses Act, a Notified Institution could be deleted is valid and acceptable in the aforesaid limited context only. Similarly, if any institution/Temple has been erroneously excluded from the List of Notified Institutions, then, on the strength of Section 21 of the General Clauses Act, it could be included in the List of Notified Institutions so as to overcome the erroneous omission.
110. But if the inclusion of a Hindu Religious Institution as a Notified Institution by issuance of Notification under Section 23 of the Act was just and proper, whether, such an Institution could be excluded from the List of Notified Institutions? Applying the said question to the facts of the present case, when the Gokarna Temple was rightly included in the List of Notified Institutions by issuance of Notification dated 30/04/2003 (01/05/2003) as
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it is an Institution which was registered under the BPT Act, in respect of which there is no controversy at all, could the said Temple be deleted from the List of Notified Institutions on the touchstone of Section 21 of the General Clauses Act? Secondly, an incidental question would be, when once the Temple was included in the List of Notified Institutions by Notification dated 30/04/2013 (01/05/2013) issued under Section 23 of the Act, on the enforcement of the Act, could the exclusion of the Temple be in the form of a Government Order or only in the form of another Notification?
111. Before answering these questions, it would be relevant to reiterate that the State Government reissued Notification dated 30/04/2003 on 29/09/2012 to have retrospective effect from 01/05/2003. Thereafter, in exercise of powers conferred under Section 23 of the Act read with Section 21 of the General Clauses Act, Notification dated 16/03/2013 has been issued making certain amendments to the Notification dated 29/09/2012. In the Notification dated 16/03/2013, some Temples which
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were included in the Notification 29/09/2012 (having retrospective effect from 01/05/2012), have been deemed to have been omitted with effect from the dates specified against each of the Temple as per various Government Orders. The date specified in respect of Gokarna Temple is 12/08/2018 on which date, impugned Government Order was issued.
Thus, there is no controversy with regard to the Temple being included in the List of Notified Institutions under Section 23(e) of the Act as there is no challenge made to the same. However, the two contentions alluded to above would have to be answered.
112. Answering the second contention first, it is noted that Section 21 of General Clauses Act mandates that when a power is exercised to add to, amend, vary or rescind a notification, order, rule, bye-law etc., it must be exercised in the like manner and subject to like sanction and conditions, if any. It is noted that the List of Notified Institutions have been published by the State Government by way of Notification dated 30/04/2003 (01/05/2003). If
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any amendment to the said Notification is to be made for excluding or including any Temple as a notified institution, then it must be done by issuance of another Notification as per the mandate of Section 21 of General Clauses Act. The same cannot be done in any other way or manner. But in the instant case, it is by issuance of a Government Order. The requirement of Section 21 is clear and mandatory in nature. Thus, can an amendment to a notification issued under Section 23 of the Act be, by way of issuance of a Government Order? In our view, it cannot be so. This can be explained by way of legal maxim, expressio unius est exclusio alterius, which means - expression of one thing is an exclusion of another. Therefore, when one thing is expressly stated, then by implication what has not been stated is excluded from the scope of expression. Further, there is another legal principle, which is applicable in the present case. It is, where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden vide, Taylor vs. Taylor [(1875) 1 Ch D 426]. Hence, when a statute requires a particular
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thing to be done in a particular manner, it must be done in that manner or not at all and that other methods of performance are necessarily forbidden, vide Nazir Ahmed vs. King Emperor [(1936) L.R. 63 I.A. 372]. The Hon'ble Apex Court too, has adopted this maxim [vide:
Parbhani Transport Co-operative Society Ltd. vs. The Regional Transport Authority, Aurangabad & others [(1960) (3) S.C.R. 177: AIR 1960 SC 801]. This rule says that an expressly laid down a mode of doing something it necessarily implies a prohibition of doing it in any other way.
113. Thus, the Temple in question could not have been deleted by issuance of a Government Order, but by issuance of another Notification. In fact, Section 21 of General Clauses Act also envisages exercise of power in the same manner in which power is exercised to issue a Notification in the first instance. This is not a matter of form, but of substance inasmuch as Section 21 of General Clauses Act stipulates that any amendment to a Notification already issued must be in the like manner and subject to
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the like conditions and sanctions that is, by means of issuance of another Notification by invoking the relevant provision of law in respect of which the prior/earlier Notification was issued and which is sought to be amended and not in the form of an order, as in the instant case. Therefore, it is held that the deletion of Gokarna Temple from the List of Notified Institutions could not have been by Government Order dated 12/08/2008, but it could have been by issuance of a Notification, in the same manner the Temple was included in the List of Notified Institutions under Section 23 of the Act.
114. Reliance could be placed on Union of India vs. Charanjit S.Gill [(2000)5 SCC 742], wherein the Hon'ble Supreme Court while dealing with the Army Act, 1950 and Court Martial thereunder observed that "notes" had been issued by the authorities of the armed forces for the guidance of the officers connected with the implementation of the provisions of the Act and the Rules and not with the object of supplementing or superseding the statutory rules by administrative instructions. It was observed that
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issuance of an administrative order or a note pertaining to special type of weapon to bring it within the ambit of the Army Act, which was hitherto not being included therein could not be said to have been included in the manner as it was sought to have been so done. Section 27(3) of the Army Act prescribes a death penalty in the event the arm or weapon concerned stands out to be a prohibited arm, user of which results in a death, a rather stringent provision. That the statute therein required a notification in the Official Gazette for including an arm or a weapon as a prohibited arm or weapon. Therefore, an administrative note in relation to importation of a prohibited arm be termed to be sufficient so as to come within the ambit of the statutory requirement of a notification in the Official Gazette was negatived. That administrative instructions according to Hon'ble Supreme Court, could not possibly be a substitute for a notification which stands as a requirement of the statute. Further, the Hon'ble Supreme Court observed that the question of there being any notification even in the guise of an administrative order does not arise. According to the Hon'ble Supreme Court, the requirement of the
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statute is sacrosanct and since the issue had to be dealt with utmost care and caution, without the issuance of a notification, question of a conviction under Section 27(3) of the Army Act would not arise.
115. Reliance could also be placed on a decision of the Hon'ble Supreme Court in the case of Subhash Ramkumar Bind Alias Vakil and another vs. State of Maharashtra [(2003)1 SCC 506], wherein it has been observed that a notification in common English acceptation means and implies a formal announcement of a legally relevant fact and in the event of a statute speaking of a notification being published in the Official Gazette, the same cannot but mean a notification published by the authority of law in the Official Gazette. It is a formal declaration and publication of an order which shall have to be in accordance with the declared policies or requirement of the statute and in accordance therewith.
116. In view of the aforesaid discussion, we answer the second aspect on point No.1 by holding that the State Government could not have deleted Gokarna Temple from
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the List of Notified Institutions by issuing a Government Order when it had been included in the said List by issuance of a Notification under Section 23 of the Act, which was published in the Official Gazette. Therefore, if the State Government for any reason had to delete the Temple from the List of Notified Institutions, it had to be by issuance of a Government Notification and not by means of a Government Order i.e., Order dated 12/08/2008, which is impugned in these writ petitions. Thus, the second aspect is answered by holding that Government Order dated 12/08/2008 is not in accordance with the requirements of Section 21 of General Clauses Act and therefore, not valid in the eye of Law.
117. Applying the aforesaid principles and judicial dicta to the facts of the present case, the first aspect of point No.2 needs to be answered i.e., whether Gokarna Temple could have been deleted from the List of Notified Institutions, under Section 21 of the General Clauses Act. Before answering the said question, it is necessary to first discuss about the inclusion of the Temple in the List of
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Notified Institutions as it was a Temple, which was registered under the provisions of BPT Act at the time when the Act was enforced and hence reference to the same is made.
Salient provisions of BPT Act:
118. It would be useful to discuss the salient provisions of the BPT Act, having a bearing on the controversy. The BPT Act was enacted to regulate and make better administration of the public and charitable trusts in the erstwhile State of Bombay. Prior to re- organization of State of Karnataka, Uttara Kannada District, and particularly, Gokarna was a part of the erstwhile Bombay State and hence, BPT Act was made applicable to the Temple in question. Section 2(13) of the said Act defines a "public trust" to mean an express or constructive trust for either a public religious or charitable purpose or both and includes a Temple, a Math, a Wakf, Church, Synagogue, Agiary or other place of public religious worship, a dharamada or any other religious or charitable endowment and a society formed either for a religious or
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charitable purpose or for both and registered under the Societies Registration Act, 1860. Section 2(18) defines the expression "trustee" as a person in whom, either alone or in association with other persons, the trust property is vested and includes a manager. Under Section 2(20), it is stated that words and expressions used, but not defined in the BPT Act and defined in Indian Trust Act, 1882 shall have the same meaning assigned to them in that Act.
Section 2(9) of BPT Act defines the expression "Math" to mean an institution for the promotion of Hindu religion presided over by a person whose duty is to engage himself in imparting religious instructions or rendering spiritual service to a body of disciples or who exercises or claims to exercise headship over such a body and includes places of religious worship or instruction which are appurtenant to the institution. Section 2(17) of BPT Act defines "Temple" to be a place by whatever designation known and used as a place of public religious worship and dedicated to or for the benefit of or used as of right by the Hindu community or any section thereof as a public religious worship.
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Thus, the expression "Math" and "Temple" have distinct meanings under the BPT Act. Further, both a Temple as well as a Math could be a public trust. Generally, the deity is installed at a Temple, but what is important is that it should be a place of public worship where Hindu or sections thereof can use it for religious worship as of right. Another aspect is that there should be a dedication. But, what is important is, the right of entry by public to the Temple, though such a right could be regulated in terms of timings of public visit etc., as also there could be restriction to particular parts of the Temple such as the sanctum sanctorum etc.
119. Under Hindu law, an idol is a juristic person capable of holding property endowed for the institution vested in it. The real purpose of gift of properties to the idol is not to confer any benefit on God, but to acquire spiritual benefit by providing facilities for those who desire to worship. In Deoki Nandan vs. Murlidhar [AIR 1957 SC 133], the Hon'ble Supreme Court has also identified several tests for determining whether the Temple is a public
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Temple or a private Temple. There is no dispute that the Gokarna Temple is a Public Temple.
120. It is also necessary to note the difference between a Temple and a Mutt (Math). Though both are Hindu Religious Institutions, a Mutt signifies an abode or residence of ascetics, which in legal terminology connotes a monastic institution, used for the benefit of ascetics belonging to a particular order and presided over by a superior. Hindu Maths were established by Adishankara or Shankaracharya. While the presiding element in a Math is a religious teacher, in a Temple it is the idol. The primary purpose of the Math is to encourage and foster spiritual learning. The religious teacher of a Math or Guru possesses high standards of spiritual knowledge with moral purity, for worship of God, is an essential part of the religious teachings of a particular Math. There could also be Math without an idol. The property of the Math does not vest in its spiritual head, the Mahanth or Guru, as in the case of a Temple, wherein it vests in the idol of the temple. The Hon'ble Supreme Court in the case of Krishna Singh vs.
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Mathura [AIR 1980 SC 707] and Charity Commissioner, Bombay vs. Administrator, Shringeri Mutt [1969 SC 566] has examined the primary purpose and characteristic of a Math. The rights and obligations of the Math also called a Mahantha have elaborately been discussed by the Supreme Court in the case of The Commissioner, Hindu Religious Endowment, Madras vs. Lakshmindra Thirtha Swamiji of Shirur Math (popularly known as Shirur Math Case) [AIR 1954 SC 284].
121. In the instant case, Gokarna Temple is an ancient public Temple, but later on registered under the provisions of BPT Act. Under Section 47 of the BPT Act, any person interested in a public trust could apply to the Charity Commissioner for appointment of a new trustee, where there is no trustee for such trust or, the trust cannot be administered until the vacancies are filled on account of suspension, removal, discharge of a trustee or when a trustee of such trust dies. The Charity Commissioner may, after hearing the parties and making such enquiry as he deems fit, by order, could appoint any person as a trustee
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or also remove or discharge any trustee for any of the reasons specified under sub-section (1) of Section 47. In appointing a trustee, the Charity Commissioner had to have regard to certain aspects such as, the interest of the public or section of the public who have interest in the trust and for the customs and usage of the trust. Upon making an order appointing a new trustee under sub-section (2) of Section 47, the Charity Commissioner either, by the same order or, by a subsequent order could direct that any property of the trust shall vest in the person so appointed and thereupon it shall so vest. The order of the Charity Commissioner under sub-section (2) of Section 47 is deemed to be a decree of the Court and an appeal would lie only to the concerned High Court.
122. Gokarna Temple, being registered as a public trust under the provisions of the BPT Act and being a public Temple, was being administered by three Mukthesars or (hereditary) trustees, which was by custom of the Temple. Damodar Dixit was one of the three Mukthesars till his death on 15/01/1957. On his demise, his son, Vigneshwara
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Damodara Dixit applied for appointment as a Mukhtesar of the Temple. In fact, from order dated 06/02/1957 passed by the District Judge, North Canara (Uttara Kannada District), it is noted that the grand-father of the Vigneshwara Damodara Dixit was also a Mukhtesar. That on the death of Damodar Dixit, Vigneshwara Damodara Dixit filed an application for being appointed as a Mukhtesar and by order dated 06/02/1957, he was appointed as a Mukhtesar of the Temple in the vacancy caused by the death of his father. The other two Mukthesars then were Mahabaleshwar Bhatta Hire of Gokarna and Umashankar Ananta Upadya, also of Gokarna. In fact, subsequently there was one more order passed by the learned District Judge, North Kanara, Kumta on 31/03/1960 appointing Vigneshwara Damodara Dixit as a Mukthesar or a trustee of the Temple. The said appointment was on the basis of a customary right claimed on hereditary basis. Vigneshwara Damodara Dixit died on 02/11/2004. By then the Act had already been enforced in the State and BPT Act was not in force in the State by virtue of the order passed in the case of Shringeri Nelamavu Samsthana, which struck down the
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applicability of the BPT Act in the State of Karnataka as being discriminatory and unconstitutional with effect from 03/12/1997 on which date the judgment was delivered. Thereafter, the State Government has issued Notification dated 19/03/2004 to the effect that Charitable and Religious Trusts Act, 1920 would be applicable to those areas where the BPT Act was applicable. Thus, Gokarna Temple being registered under the provisions of the BPT Act was rightly included in the List of Notified Institutions as per Section 23(e) of the Act referred to above.
123. But the more fundamental aspect of point No.2 is, whether the State Government had the competence to issue the Government Order dated 12/08/2008. As discussed above, the inclusion of the Temple in the List of Notified Institutions is just and proper. Further, the provisions of the Act does not provide for exclusion/deletion of a Notified Institution from the List of Notified Institutions. If that be so, whether Section 21 of the General Clauses Act empowered the State Government to issue Government Order dated 12/08/2000 so as to delete the Temple from
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the List of Notified Institutions. Here, we are not considering the controversy from the point of form of the order as the same has been dealt with above, but on the more important aspect of competence of the State Government to exclude a Notified Institution from the List of Notified Institutions on the basis of Section 21 of the General Clauses Act in the absence of an express power to do so under the Act. Before answering this question, it would be useful to refer to a judgment of the Hon'ble Supreme Court, which has dealt with a similar controversy.
124. In State of Madhya Pradesh vs. Ajay Singh and others [(1993)1 SCC 302] (Ajay Singh), while considering the applicability of Section 21 of the General Clauses Act in the matter of reconstitution of a Commission of Inquiry set up under the Commissions of Inquiry Act, 1952 by replacing its existing sole member by another person, it was held that it was not permissible under the scheme of the said Act nor could such power of reconstitution be read into the Act by invoking Section 21 of General Clauses Act. The Hon'ble Supreme Court observed
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that Section 21 of the General Clauses Act could be invoked only if, and to the extent, the context and the scheme of the Act permits. While discussing the provisions under the Commissions of Inquiry Act, 1952, the Hon'ble Supreme Court noted that in the context of reconstitution of the commission therein, the power to fill any vacancy in the office of the member of the Commission was expressly provided in sub-section (3) of Section 3 of the Commissions of Inquiry Act, 1952. Similarly, the power to discontinue the existence of any Commission when it becomes unnecessary could be exercised by issuance of a Notification in accordance with Section 7 of the said Act, which results in rescinding the notification issued under Section 3 constituting the Commission. The Hon'ble Supreme Court further observed that the power to rescind any notification conferred generally in Section 21 of the General Clauses Act was clearly inapplicable in the scheme of Commissions of Inquiry Act, 1952, which expressly provides for the exercise of this power in relation to a Commission constituted under Section 3 of the Act. The Hon'ble Supreme Court further observed that even the power to amend or vary any
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notification by filling any vacancy in the office of a member as provided in the Commissions of Inquiry Act, 1952, was also obviously excluded from the purview of Section 21 of the General Clauses Act and hence, the same could not be invoked for that purpose.
The further question considered in the said case was, whether there was power to reconstitute the Commission by replacement or substitution of the existing member, though not provided in the Commissions of Inquiry Act, 1952, by invoking the residuary power to amend or vary any notification under Section 21 of the General Clauses Act. After going through the scheme of the Commissions of Inquiry Act, the Hon'ble Supreme Court held that for the purpose of reconstitution of any Commission, the power to amend or vary any notification by virtue of Section 21 of the General Clauses Act must be taken as excluded by clear implication in the sphere of reconstitution of the Commission. Moreover, the power to amend or vary would include to replace or substitute the existing composition of the Commission with an entirely new composition. The
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Supreme Court held that the context as well as the scheme of the Commissions of Inquiry Act, 1952 clearly indicate that Section 21 of the General Clauses Act, 1897 (Central Act) could not be invoked to enlarge the power to reconstitute the Commission constituted under Section 3 of the Act in a manner other than that expressly provided in the Commissions of Inquiry Act. There being no express power given by the Commissions of Inquiry Act, 1952 to the appropriate Government to reconstitute the Commission of Inquiry constituted under Section 3 of the Act by replacement or substitution of its sole member and the existence of any such power being negatived by clear implication, no such power could be exercised by the appropriate Government. This was because, the scheme of the enactment envisaged that the appropriate Government should have no control over the Commission after its constitution under Section 3 of the Act except for the purpose of filling up of any vacancy, which may have arisen in the office of a member of the Commission apart from winding up the Commission by issuance of a notification under Section 7 of the Act, if the continued existence of the
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Commission was considered unnecessary. Thus, the Hon'ble Supreme Court applied Section 21 of the General Clauses Act, having regard to the subject matter, context and effect of provisions and as to whether application of Section 21 would become inconsistent to the said provisions. Similar observations have been made by the Hon'ble Supreme Court in State of Bihar vs. D.N. Ganguly [AIR 1958 SC 1018].
Relevant provisions of the Act:
125. The aforesaid dicta of the Hon'ble Supreme Court would have to be applied having regard to the scheme and context of the Act under consideration. As already noted, the Act applies to the whole of State of Karnataka. It, however, does not apply (i) to a Mutt or a Temple attached, thereto; (ii) to any Hindu religious institution or charitable endowment founded, organized, run or managed by Hindu religious denomination. The Explanation defines a "Mutt" to mean a religious institution presided over by a person whose principal duty is to engage himself in the teaching and propagation of religion, teaching
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and philosophy of the denomination, sect or sampradaya pertaining to the Institution vide Section 1(4) of the Act as it stood prior to its amendment. Section 2 of the Act is the definition clause. Section 2(20) defines "Notified Institution" to mean an institution notified under Section 23 of the Act. Section 2(15) defines 'Hereditary office-holder' to mean that an office-holder, and 'Hereditary Trustee' means a trustee, of a Hindu religious institution or a charitable endowment succession to whose office devolves according to the rule of succession laid down by the founder or according to usage or custom applicable to the institution or endowment or according to the law of succession for the time being in force as the case may be. "Temple" is defined under Section 2(27) to mean, a place by whatever designation known, used as a place of public religious worship having separate existence and dedicated to or for the benefit of or used as of right by the Hindu community or any section thereof as a place of public religious worship and includes a Mandira, Samadhi, Brindavana, Gaddige, Shrine, Sub-shrine, Utsava Mantapa, Tank or other necessary appurtenances, structures and land, but does not
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include a temple which is an inseparable and integral part of the composite institution consisting of institution other than a temple.
126. Chapter II of the Act deals with appointment of Commissioner for Hindu Religious Institutions and Charitable Endowments for the State of Karnataka as well as Deputy Commissioner for the aforesaid institutions. Chapter III deals with Archakas and Temple servants, while Chapter IV deals with common pool fund. Chapter V deals with constitution of Advisory Committee.
127. Chapter VI, which is relevant for the purpose of this case, deals with Notified Institutions. Gokarna Temple is a Notified Institution under Section 23(e) of the Act. Section 24 deals with Controlling Authorities in respect of matters connected with Notified Institutions. The Deputy Commissioner is the immediate Controlling Authority and the Assistant Commissioner acts subject to the authority of the Deputy Commissioner to perform such duties and exercise such powers as may be prescribed. Section 25 states that subject to any general or special order of the
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State Government, there shall be, constituted by the prescribed authority, a Committee of Management consisting of nine members in respect of one or more Notified Institutions and different authorities may be prescribed in respect of different class or classes of Notified Institutions. Section 26 deals with the term of office of the Committee of Management and election of its Chairman, while Section 27 deals with meeting of the Committee of Management and Section 28 deals with power to dissolve a Committee of Management. Section 29 deals with appointment of an Administrator in place of the Committee of Management dissolved or suspended under sub-section (1) or (3) of Section 28 or under the circumstances stated therein. Filling up of casual vacancies is envisaged under Section 30 of the Act. Section 31 prescribes the conditions for alienation or transfer of the land or other property granted to the Notified Institutions, while Section 32 deals with consequences of unauthorized alienation or transfer. Suits on behalf of Notified Institutions could be filed by the Deputy Commissioner or the Assistant Commissioner on the recommendation of the Committee of Management vide
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Section 33. Section 34 speaks about arrears of rent due to a Notified Institution.
128. Further, the Karnataka Hindu Religious Institutions and Charitable Endowments Rules, 2002 (hereinafter referred to as "the Rules" for the sake of convenience) deal, inter alia, with Notified Institutions. Rule 3 classifies them under the following three categories:
(a) those Notified Institutions, whose gross annual income exceeds rupees ten lakhs; (b) those Notified Institutions, whose gross annual income exceeds rupees one lakh, but does not exceed rupees ten lakhs; (c) those Notified Institutions, whose gross annual income exceeds rupees one lakh. The Commissioner, Deputy Commissioner and the Assistant Commissioner respectively are the prescribed authorities for (a), (b) and (c) categories of Notified Institutions. The State Government can also appoint an officer not below the rank of a first division assistant as inspector for one or more taluks, who could exercise powers and perform the duties and functions as may be directed by the Commissioner, the Deputy Commissioner or Assistant
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Commissioner as stated in Rule 4 of the Rules. Rule 22 deals with the procedure for constitution of the Committee of Management. Rule 23 prescribes quorum for meeting of the Committee of Management while Rule 24 envisages procedure for meetings of Committee of Management. Rules 25 to 32 deal with the manner in which the properties of Notified Institutions could be dealt with, alienated or transferred, leased, mortgaged, exchanged etc. The powers and functions of the Committee of Management are stipulated in Rule 33 of the Rules. Chapter VIII of the Act deals with budget of Notified Institutions, audit etc., which applies to Notified Institutions whose annual gross income exceeds twenty five thousand rupees. Section 38 deals with audit report, while Section 39 deals with rectification of defects disclosed in audit and orders of surcharge against Chairman or Executive Officer and Section 40 deals with rectification of defects detected by Commissioner. Section 41 deals with obligation of every Hindu religious institution and every charitable endowment to which the Act applies to file annual audited statements etc.
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129. Thus, insofar as all Notified Institutions are concerned, Chapters VI and VII of the Act read with the Rules made thereunder, form a complete code by themselves vis-à-vis Notified Institutions under the Act, their Controlling Authorities, constitution of the Committee of Management and also the power to dissolve the Committee of Management, appointment of Administrator, filling up of casual vacancies etc. Further, the said Chapters also deal with the manner in which property of a Notified Institution has to be dealt with as well as budget, accounts and audit of such institutions.
130. On a close reading of the aforesaid provisions, it becomes clear that the Act does not contemplate deletion of a Notified Institution from the List of Notified Institutions notified by the State under Section 23. It also, does not envisage inclusion of any institution as a Notified Institution except as envisaged under Clauses (a) to (f) of Section 23. If at all any Notified Institution has been erroneously included in the List of Notified Institutions and the same would have to be deleted then possibly resort could be
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made to Section 21 of the General Clauses Act. Such a power is exercised for the purpose of rectification of an error. Similarly, if any Temple which ought to have been notified or included in the List of Notified Institutions and has not been done so, then possibly Section 21 of the General Clauses Act could be relied upon to include such an institution in the List of Notified Institutions as it had been inadvertently excluded. Further, the State Government has no power to add to or delete any category of institutions to be included in the List of Notified Institutions or conversely exclude any category. That power is vested with the State Legislature, which has the power to amend or repeal Section 23 of the Act. In our view, the State Government, on its own, cannot include any Temple as a Notified Institution unless it comes within the scope of Clauses (a) to (f) of the Act; neither can any Institution, which falls within the scope of Clauses (a) to (f) be deleted, unless it has been erroneously so included. Thus, on a close reading of the scheme and context of the Act, it becomes clear that Section 21 of the General Clauses Act could not be adverted to or relied upon for deletion of a Temple from the List of
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Notified Institutions, when it has been rightly included in the said List.
131. In the above background, what becomes clear is the fact that Gokarna Temple being registered and governed under the provisions of the BPT Act was notified under Section 23(e) of the Act. After Notification as such, the reasons for its deletion from the List of Notified Institutions must be ascertained while considering the question, whether the deletion of the Temple from the List of Notified Institutions was right or not.
132. On a perusal of the impugned Government Order dated 12/08/2008, it becomes apparent that the basis for the said order was on the representation made by the Upadivanta Mandala as well as the respondent -Mutt. There is no whisper in the said Government Order to the effect that the Temple was erroneously notified under Section 23 of the Act. In fact, petitioners have contended that because the Temple was being governed under the provisions of the BPT Act under Section 23 of the Act, it was included in the List of Notified Institutions. The State also notified the
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Temple as a Notified Institution on the very same basis under Section 23(e) of the Act. The said fact is also noted in the impugned Government Order. Thus, the inclusion of the Temple in the List of Notified Institutions under Section 23 of the Act is an undisputed fact. In fact, respondent - Mutt or Pontiff have also not challenged the inclusion of the Temple in the List of Notified Institutions under Section 23(e) of the Act by Notification dated 30/04/2003 (01/05/2003).
133. More significantly, the respondent - Pontiff had filed W.P.No.20961/2005 before this Court seeking quashing of Notification dated 30/04/2003 (01/05/2003) issued by the State insofar as it related to institutions mentioned in paragraph Nos.3 and 4 of the said writ petition, which read as under:
"3. It is submitted that the petitioner has been managing the following Temples and institutions in Uttara Kannada District:
(a) Sri Ramadeva Bankuli Matha, Siddapura, Uttara Kannada.
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(b) Sri Raghothama Matha, Gokarna, Kumata Taluk, Uttara Kannada.
(c) Sri Narasimhadeva Matha, Apsarakonda, Honnavar, Uttara Kannada.
(d) Sri Ramakrishna Kalika Matha, Ambagiri, Sirsi, Uttara Kannada.
(e) Sri Swayambhu Devalaya, Kadatoka, Honnavara, Siddapura, Uttara Kannada.
(f) Sri Batte Vinayaka Devalaya Kekkaru, Honnavar, Uttara Kannada
(g) Sri Durgadevi Devalaya, Devimane, Sirsi, Uttara Kannada.
(h) Sri Mahalingeshwara Devalaya, Uppale, Madle village, Honnavara, Uttara Kannada.
(i) Sri Siddivinayaka Temple, Karva.
(j) Sri Devi Mane Temple, Kitre, Bhatjkal.
4. In so far as, the institution at (a), (b), (c), (d),
(e), (f) are concerned, they are attached to the Matha right from time immemorial, the institutions
(g), (h), (i) and (j) are concerned the management of the same which have been submitted to the petitioner long time back with approval of the authority under the repealed Bombay Public Trust Act, much before the introduction of the present Act. The documents like orders or Assistant Charity
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Commission Trust Deed and order of this Hon'ble Court in Trust Misc. Case No.20/2000 are produced herewith as ANNEXURE-A to B, H to J and K respectively."
A reading of the above would clearly indicate that insofar as Institutions at clauses (a) to (f) above are concerned, they are stated to be attached to the Mutt right from the time immemorial. Institutions at (g), (h) (i) and
(j) above are concerned, are stated to be under the management of the Mutt with the approval of the authority under the repealed BPT Act by the respondent - Mutt. Thus, Gokarna Temple was not sought to be deleted from Notification dated 30/04/2003 (01/05/2003) in the writ petition filed by the respondent - Pontiff, as the name of Gokarna Temple is conspicuous by its absence in the relief sought for by the respondent - Mutt in the aforesaid writ petition. The inference is, the said Temple was not considered to be a Temple attached to the respondent - Mutt nor was the Temple under the Management of the respondent - Mutt with the approval of the authority under the repealed BPT Act even according to respondent - Mutt
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at an undisputed point of time i.e., in the year 2005, when the aforesaid writ petition was filed. Thus, it is only pursuant to the impugned Government Order dated 12/08/2008 that the Temple in question has been deleted from the List of Notified Institutions on the premise that it was attached to the respondent- Mutt.
134. Then the reasons for deletion of the Temple from the List of Notified Institutions vide Notification dated 30/04/2003 (01/05/2003) assume importance. In the impugned Government Order dated 12/08/2008 what is stated is that the Temple had been notified under Section 23(e) of the Act, as it is a Temple, which was registered under the provisions of the BPT Act. But under Section 1(4) of the Act, there is an express bar in the application of the Act (i) to a Mutt or a Temple attached thereto; (ii) to any Hindu Religious Institution or Charitable Endowment founded, organised, run or managed by Hindu Religious denomination. The Explanation to the said Section states that for the purposes of the Act "Mutt" means a Religious Institution presided over by a person whose principal duty
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is to engage himself in the teaching and propagation of religion, teachings and philosophy of the denomination, sect or sampradaya to which the mutt belongs and in imparting religious instruction and training and rendering spiritual service or who exercises or claim to exercise spiritual headship over a body of disciples and includes any place or places of religious worship, instruction or training which are pertinent to the institution. The Government Order further states that Gokarna Temple is attached to the respondent - Mutt and in light of the representations made by respondent- Mutt, the Temple was being deleted from the List of Notified Institutions on the basis of the opinion of the learned Advocate General. But learned Advocate General's opinion proceeds on the basis that the State Government has every right to rectify any mistake which may have been made in relation to a matter even if it is pending before the Court, unless the Court has restrained the State Government from carrying out any such exercise. But the deletion of the Temple from the List of Notified Institutions in the instant case is firstly, based on the representation made by Upadivanta Mandala and the respondent - Mutt
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and secondly, on the basis of the opinion of the learned Advocate General dated 24/07/2008 on the premise that it is permissible to exclude a Temple from the List of Notified Institutions under Section 23 of the Act, if it is to rectify any mistake made while issuing the earlier Notification. The Government Order does not state that the Temple was erroneously included in the List of Notified Institutions and therefore, it had to be deleted. But the opinion of learned Advocate General proceeds on that basis. The said opinion does not at all touch upon the fact that because the Act does not apply to the Temple as it is attached to the Mutt, it was being deleted.
135. But as already noted, there is no controversy with regard to inclusion of Gokarna Temple in the List of Notified Institutions under Section 23 of the Act. In fact, it was rightly included in the said List. Therefore, there was no reason to rectify any mistake. Hence, the question of deletion of the said Temple from the Notification dated 30/04/2003 (01/05/2003) so as to rectify any mistake i.e., regarding its erroneous inclusion thereof, does not at all
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arise. Then what was the real reason for its deletion of the Temple from the List of Notified Institutions when there was no occasion to rectify any mistake in the inclusion of the Temple in the List of Notified Institutions. The reason set out in the impugned order dated 12/08/2008 is that the Upadivanta Mandala and the respondent - Mutt sought for transfer of the Temple to the Mutt as it was attached to the Mutt and that the Act was not applicable to the Temple. If that was the reason for deletion of the Temple from the List of Notified Institutions, then the same ought to have been made known to the learned Advocate General, on the basis of whose opinion, the impugned Government Order has been issued. In fact, the opinion of the learned Advocate General cannot be the basis for passing the impugned Government Order on account of three main reasons. Firstly, the affidavit filed before the Hon'ble Supreme Court by the State Government stating that it would not take any action under the Act such as, delete any Temple from the List of Notified Institutions was not brought to the notice of the learned Advocate General and the action of the State Government is contrary to the undertaking given to the
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Hon'ble Supreme Court. Reference to the Affidavit is found in File Notings dated 23/06/2008. Secondly, interim order of status quo passed by this court in W.P.No.17580/2006 dated 12/12/2006 and subsequently extended was also not brought to the notice of the learned Advocate General. In the aforesaid writ petition, challenge was made to the Government order dated 17/11/2006 under which the Assistant Commissioner was appointed the Executive Officer of the Temple in question and an order of status quo was passed thereon. Thirdly, and more significantly, the State Government did not inform nor refer to the learned Advocate General that the main object and purpose of the deletion of the Temple from the List of Notified Institutions was on the premise that the said Temple was attached to the respondent - Mutt and therefore, in view of Section 1(4)(i), the Act not being applicable to such a Temple, it was being deleted from the List of Notified Institutions to be handed over to the respondent - Mutt. Had the aforesaid three aspects been brought to the notice of the learned Advocate General, his opinion would have been different. But on the other hand, the impugned Government Order
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expressly refers to the opinion of the learned Advocate General and based on his opinion, the Temple has been deleted from the List of Notified Institutions and further the entire administration of the Temple has been handed over to the respondent-Mutt. Of course, learned Advocate General has stated that the power of the State to denotify any Notified Institution is traceable to Section 21 of the General Clauses Act and that the Temple could be deleted from the List of Notified Institutions under Section 23 of the Act, provided there is no order of restraint issued by any Court of law. But that is not so having regard to the scheme of the Act as discussed above.
136. The point is, as to, whether, the State Government has rightly exercised the said power on the touchstone of Section 21 of the General Clauses Act by issuance of Government Order dated 12/08/2008. As already stated, the said Government Order seeks to achieve a twin objective: firstly, to delete the Temple from the List of Notified Institutions and secondly, to hand over the entire administration of the Temple to the respondent -
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Mutt. The raison d'etre for the same being that the Temple, being attached to the Mutt, is not subjected to the provisions of the Act vide Section 1(4)(i). The issue is, whether the State Government was right in issuing the said order dated 12/08/2008 on the aforesaid basis. As already noted, the object was not to delete the Temple from the List of Notified Institutions for the reason that it was erroneously included in the said List. Whether, power under Section 21 of the General Clauses Act could have been exercised to achieve the aforesaid two ends. Equally significant is to note as to whether the power to delete the Temple from the List of Notified Institutions would have been exercised if it was not for the purpose of handing it over to the respondent - Mutt. In our view, the twin purposes are inexplicably interlinked and not separable from each other. In other words, the Temple would not have been deleted from the List of Notified Institutions, if it was not for the purpose of handing over the same to the respondent - Mutt. This is because, there is no controversy with regard to the Temple being included in the List of Notified Institutions. Further, in order to handover the
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Temple to the Mutt, it had to be deleted from the List of Notified Institutions. Hence, but for the latter purpose it would not have been deleted from the List of Notified Institutions as the inclusion of the Temple in the List of Notified Institutions was not questioned by anybody. Therefore, it was not to rectify any error that deletion of the Temple in question from the List of Notified Institutions vide Government Notification dated 30/04/2003 (01/05/2003) was made. If there was no reason to rectify any mistake in the inclusion of the Temple in the List of Notified Institutions, then the exercise of power under Section 21 of General Clauses Act was illegal as it was without competence, wholly unnecessary and in fact unwarranted. Therefore, the exercise of power under Section 21 of the General Clauses Act for deletion of the Temple from the List of Notified Institutions was illegal as it was without any competence. But the matter does not end. It is clear that the real purpose of deleting the Temple from the List of Notified Institutions was in order to handover the same to the respondent - Mutt headed by respondent - Pontiff. Further, the exercise of power by the State Government
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under Section 21 of General Clauses Act was also illegal, for the reason that the State Government had no power to handover the Notified Temple to the respondent - Mutt on the basis of Section 21 of the General Clauses Act.
137. Thus, answer to first aspect of point No.2 is, the State Government could not have either included a Temple to the List of Notified Institutions or excluded a Temple from the said List on the touchstone of Section 21 of the General Clauses Act, if the Temple was rightly not included in the List of Notified Institutions or rightly excluded from the List of Notified Institutions, as the case may be. However, if a Temple, which ought to have been included in the List of Notified Institutions and not having been done so or, if a Temple was erroneously included in the List of Notified Institutions and therefore, had to be excluded, then, even in the absence of there being an express provision under the Act, Section 21 of the General Clauses Act could be relied upon. But while doing so, it is incumbent upon the State to amend or vary the List of Notified Institutions in the same manner or form in which
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the List has been issued i.e., by issuance of a notification and not by a Government Order. Thus, a Temple which was rightly included in the List of Notified Institutions could not be deleted from the List or if a Temple which has rightly been excluded in the said List could be included on the basis of Section 21 of General Clauses Act. Hence, it is held that the issuance of the impugned Government Order dated 12/08/2008 on the touchstone of Section 21 of General Clauses Act by deleting the Temple from the List of Notified Institutions is not a valid deletion in the eye of law. Section 21 of General Clauses Act does not empower the State Government or any authority to do something which is prohibited under an enactment.
138. Having regard to the dictum of the Hon'ble Supreme Court in the case of Ajay Singh and on a close reading of the scheme of the Act and the Rules made thereunder, it is held that the State Government has no power to exclude a Temple from the List of Notified Institutions when it was rightly included in the said List. Thus, in the instant case, Gokarna Temple being rightly
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included in the said List by issuance of a Notification on 30/04/2003 (01/05/2003), it could not have been excluded from the said List. In the same vein, the State Government has no power to include an institution such as a Temple as part of the List of Notified Institutions if the said institution cannot be included having regard to the parameters set out in Section 23 of the Act. In other words, if any Temple falls within the categories of Institutions mentioned in Section 23 (a) to (f) of the Act, then it cannot be excluded on the touchstone of Section 21 of the General Clauses Act. In the absence of there being any expression or implied power under the Act, the State Government could not have relied upon Section 21 of the General Clauses Act for the aforesaid purpose. Therefore, reliance placed on Section 21 of the General Clauses Act, is without any legal basis. In the circumstances, the State Government did not have any competence to delete Gokarna Temple from the List of Notified Institutions vide Government Order dated 12/08/2008 as the Temple was rightly included in the List of Notified Institutions by Notification dated 30/04/2003 (01/05/2003).
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139. Further, in the instant case, the deletion of Gokarna Temple, from the List of Notified Institutions, was not a deletion simplicitor. The deletion was for the purpose of handing over the Temple to the respondent - Mutt on the premise that the Temple was attached to the Mutt. In our view, such a power is not envisaged at all under the Act. A public temple Notified under the Act cannot be handed over to a private mutt. Further, in the instant case, the inclusion of Temple as a Notified Institution was just and proper and in accordance with Section 23 of the Act. In other words, the inclusion is by virtue of the statute or by operation of law and therefore, when there was a statutory inclusion and the State Government had no discretion in the matter of inclusion of the Temple in the List of Notified Institutions, it could not have exercised discretion to exclude the Temple from the List of Notified Institutions, when the inclusion was just and proper. Thus, there was no reason or rationale for deletion of the Temple from the List of Notified Institutions. Therefore, the State Government could not have deleted the Gokarna Temple from the List of Notified Institutions for
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the purpose of handing over the same to the respondent - Mutt on the premise that it was a Temple attached to the Mutt. When the Temple in question was included on the basis of Section 23(e) of the Act, it is implied that it was not a Temple attached to the respondent - Mutt. Further, it is also not the case of the respondent-Mutt that Gokarna Temple could not have been included in the List of Notified Institutions on the basis of Section 23 of the Act. The inclusion of the Temple as a Notified Institution is on the basis of the criteria mentioned in Section 23 of the Act. If a Temple falls within one of the criteria mentioned in Section 23 of the Act, it is included by operation of Law; if it does not fall within the ambit of Section 23 of the Act, it cannot be so included. The above aspect is distinct from a Temple being attached to a Mutt. In the latter case, the Act does not apply. The two aspects are distinct. It cannot be as has been stated in the impugned Government order that because the Temple is attached to the respondent - Mutt, it cannot be included in the List of Notified Institutions under Section 23 of the Act. As already stated, there are specific criteria for inclusion of a Temple as a Notified Institution.
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Once a Temple fulfills one of the criteria and it is rightly included in the List of Notified Institutions, it cannot be said to be erroneously Notified so as to be excluded, on the touchstone of Section 21 of General Clauses Act. As already discussed, the applicability of Section 21 of the General Clauses Act is limited having regard to the ambit and scheme of the Act in question. Section 21 of General Clauses Act is not a residuary power or an omnibus provision to be relied upon in all circumstances, irrespective of the scheme of the enactment under which such a power is to be exercised as in the instant case. This is particularly so, when the exercise of power is not warranted and also does not arise having regard to the scheme of the particular enactment as in the instant case.
140. To conclude in a nutshell, when once a Temple was rightly included in the List of Notified institutions, it cannot be excluded on the application of some other criterion, namely that it is a Temple attached to a Mutt. If indeed a Temple is attached to the Mutt, then the Act does not apply to such a Temple. But exercise of power on the
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basis of Section 21 of General Clauses Act to delete a Temple rightly notified from the List of Notified Institutions for the purpose of handing it over to a Mutt, as in the instant case is not envisaged. This is because the Act does not envisage deletion of a Notified Temple to be handed over to a private Mutt. The Act in fact does not envisage any deletion or inclusion of a Temple which ought to have been included or was rightly excluded in the List of Notified Institutions, as the case may be. But, as already discussed, Section 21 of General Clauses Act could be relied upon for the limited purpose of deleting a Temple which was erroneously included or include a Temple which was erroneously excluded. Beyond that, Section 21 of the General Clauses Act does not confer any competence on the State Government to delete a Temple from the List of Notified Institutions so as to handover the same to a private Mutt. Such a power cannot be read into the Act when it is, firstly, conspicuous by its absence and secondly, such a power cannot be implied when the scheme of the Act does not take within fold such an exercise of power as in the instant case. Thus, by applying the dictum of the
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Hon'ble Supreme Court in Ajay Singh to the scheme of the Act under consideration, we hold that the exercise of power by the State Government by deleting the Temple from the List of Notified Institutions and handing it over to the respondent-Mutt was without jurisdiction. Such a power cannot be traceable to Section 21 of the General Clauses Act.
141. Therefore, exercise of power for the purpose of deletion of the Temple from the List of Notified Institutions in order to handover the same to the respondent - Mutt was without any basis and contrary to the provisions of the Act and therefore, illegal and wholly unwarranted. Section 21 of the General Clauses Act also does not empower the State Government or Authority to act or exercise discretion contrary to the provisions and scheme of the Act. Thus, reliance placed on Section 21 of the General Clauses Act is wholly misplaced. We, thus, answer the first aspect of point No.2 in the aforesaid terms.
142. Learned senior counsel, Sri A.G. Holla, appearing for the respondent - Mutt, next invoked the doctrine of
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parens patriae in support of his contention that, even if the provisions of the Act or Section 21 of General Clauses Act do not permit deletion of the Temple from the List of Notified Institutions and handing over the same to the respondent - Mutt, nevertheless, the State, in exercise of its parens patriae power, had issued the Government Order dated 12/08/2008 and the State Government had the competence to issue the same. Before answering the said contention, it is necessary to give a brief exposition of the parens patriae doctrine. Parens Patriae means "parent of the country", which "refers traditionally to the role of the State as sovereign and guardian of persons under legal disability". It has its roots in the common-law concept of the "royal prerogative," under which "the king could do no wrong; he could never die; he was the representative of the State in its dealings with foreign nations; he was part of the legislature, the head of the army, the fountain of justice, always present in all his Courts, the fountain of honor, the arbiter of commerce, the head of the Church." According to the Black's Law Dictionary, Ninth Edition, parens patriae means, the State regarded as a sovereign, the State in its
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capacity as provider of protection to those unable to care for themselves.
143. Parens patriae actions in United States represent an alternative and increasingly popular method of aggregate litigation, particularly in the fields of consumer, antitrust, environmental and health law. The basis for this power is essentially protective - the guardian-king has a duty to care for his subjects, and this duty becomes legal power over those who are legally unable to care for themselves, which includes children and persons with mental infirmities. Another less popular theory explains parens patriae authority originating from universal principles of sovereignty and what it means to be a functioning Government. According to this theory, parens patriae is an "ordinary power" - an inherent right of any "government, or sovereign, as parens patriae. However, in the United States, the parens patriae jurisprudence has revolved on the remedies in environmental, antitrust, healthcare and consumer protection injuries and in aggregate litigations.
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144. Insofar as exercise of power by Courts are concerned, "parens patriae jurisdiction" of the Court (as the Court's "inherent", "protective" or "wardship" jurisdiction over children is variously known) is vested in each Judge constituting the Court and is usually exercised in equity division. It is sometimes referred to as "supervisory jurisdiction". Such jurisdiction was initially exercised in England over infants and lunatics or those who were incapable of managing their affairs. In that sense, the protective jurisdiction has always borne the character of supervisory reserve power available to deal with "exceptional" or "unforeseen" cases. The protective jurisdiction could be exercised in the interest of a person in need of protection against prospective or present harm. The protective jurisdiction of the Court is not displaced by legislation, unless a clear legislative intent that it is so displaced is discernable. The parens patriae jurisdiction is generally reserved for dealing with uncontemplated or exceptional situations, where it appears necessary for the jurisdiction to be invoked for the protection of those who
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fall within its ambit. Upon an exercise of protective jurisdiction, the Court aims to give effect to a prudential regime for management of the affairs of the person in need of protection (managing risk prudentially), without strife, in the simplest and least expensive way, in the interests of that person.
145. In Executive Officer, Arthanareswarar Temple vs. R.Sathyamoorthy and Others [(1999) 3 SCC 115], while discussing on the jurisdiction of the Court in the context of religious and charitable endowments, the Hon'ble Supreme Court has held that Courts have a general "parens patriae" jurisdiction over trusts for religious and charitable purposes and a question of public interest was involved in that case because of the contentions raised therein. In Charan Lal Sahu vs. Union of India [AIR 1990 SC 1480], the concept of parens patriae has been referred to in the context of Union of India, entering into a settlement with Union Carbide (I) Ltd., in the matter of claims, rights and liabilities of the respective parties and thereafter, the enactment of Bhopal Gas Leak Disaster
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(Processing of Claims) Act, 1985. In the aforesaid case, the Hon'ble Supreme Court has recognised the doctrine of parens patriae as the State acting as a parent of the citizens. The said concept has been reiterated by various High Courts. It is stated that parens patriae is the inherent power and authority of a Legislature to provide protection to the person and property of persons non-sui juris, such as minor, insane, and incompetent persons. The concept originally attributed to the King and is used to designate the State referring to its sovereign power of guardianship over persons under disability. If the same is to be applied to our Constitution, then the preamble read with the Directive Principles, Articles 38, 39 and 39A enjoins the State to take up these responsibilities.
146. In view of the above discussion, we are of the view that the doctrine of parens patriae does not apply in the instant case for myriad reasons. Firstly, the controversy in the instant case revolves on the power of the State Government to issue the impugned Government Order dated 12/08/2008 under the provisions of the Act.
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We have held that such a power does not exist under the provisions of the Act. We have also held that having regard to the scheme of the Act, reliance cannot also be placed on Section 21 of the General Clauses Act. In the absence of there being any express power under the statute and Section 21 of the General Clauses Act not being applicable, the inherent power of the State could not have been relied upon to issue such Government Orders. This is because, in the instant case, the State was purporting to act under the statute i.e., pursuant to the Act and when no express or implied powers are available under the provisions of the Act or under Section 21 of the General Clauses Act; the doctrine of parens patriae cannot be invoked as if the State is acting for persons under legal disability or for the benefit of persons who are not in a position to exercise their rights in law on account of mental and physical infirmity and/or physical disabilities. Further, this is not a case where there is a vacuum in law, which could enable the State to exercise its inherent power under the parens patriae jurisdiction. On the other hand, exercise of such a power is forbidden under the statute as it does not empower the State to transfer a
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Notified Institution to a Mutt. Further, the State power is exercised within a protective or wardship jurisdiction over children, infirm and those who are legally unable to care for themselves. It is in the nature of a residuary power, which has to be used for enabling those citizens who are legally disabled on account of the circumstances in which they are placed. The said power cannot be used by the State contrary to statute or law. Even in United States of America parens patriae jurisdiction has been exercised by the State for enhancing public interest such as health of the people or at times of strive or calamities. It cannot be exercised for or on behalf of individual entities such as respondent - Mutt or Pontiff in the instant case. Further as already noted, despite striking down the Act by the Division Bench of this Court, the Hon'ble Supreme Court has by its interim orders categorically observed that the Act is enforce in the State on account of stay granted by it. Moreover, as a result of this Court holding that the provisions of the BPT Act would not be applicable to those parts of the State which were governed by the said Act, such as the Temple in question, the Charitable and Religious Trusts Act, 1920 is
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applicable. Also, no reasons or circumstances are stated by the State to justify the exercise of power under the parens patriae doctrine.
147. In light of the aforesaid discussion, in our considered view, the State Government could not have, in exercise of its parens patriae power deleted Gokarna Temple from the List of Notified Institutions. It could not have done so for the purpose of handing over the same to the respondent - Mutt, which itself is not in public interest and vitiated as would be discussed and found in point No.3. The said doctrine cannot be relied upon to act contrary to public interest and against the law.
148. In view of the aforesaid discussion, we answer point No.2 by holding that the State Government had no power or competence to delete Gokarna Temple from the List of Notified Institutions by the impugned Government Order and handover the same to the respondent - Mutt, in favour of petitioners.
Re: Point No.3:
(3) Assuming that the State Government had power/competence to issue Government Order dated 12/08/2008 by deleting Gokarna Temple from Notification dated 30/04/2003
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(01/05/2003) could it have exercised its power for handing over the same to the respondent - Mutt on the premise that the Temple was attached to the Mutt? Whether the said order is legal and valid?
149. Although we have answered point No.2 against the respondents, we nevertheless consider point No.3 separately as the controversy involved herein is quite distinct. This point is considered and answered by assuming that the State Government had the power/competence to issue Government Order dated 12/08/2008 impugned in these writ petitions. Then the question is, whether, the said power could have been exercised for handing over the Temple to the respondent - Mutt on the premise that it was attached to the Mutt.
150. Before answering the same, it would be useful to refer to following orders/judgments passed by this Court as well as Hon'ble Supreme Court, which have attained finality.
(a) W.P.No.30689/2008 was filed before the Circuit Bench at Dharwad by Shankaralinga, son of Vigneshwara
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Seetharama Shankaralinga of Gokarna and Gopala Krisha claiming to be working as archakas (poojari) of Gokarna Temple wherein they assailed Government Order dated 12/08/2008. The said writ petition was dismissed by a learned single Judge on 17/09/2008 at the stage of preliminary hearing without issuing notice to the respondent - Mutt or to Upadivanta Mandala. The relevant portion of the order reads as under:
"2. The petitioners' grievance, however, is an apprehension that by denotifying the Temple, the mutt may not maintain the Temple and further since they are performing poojas at the Temple, it is possible that they may be removed from their avocation as poojaris at the Temple. The petition, however, is not supported by any material to substantiate their case that they are the poojaris at the Temple. The petition coming on for preliminary hearing, this is a preliminary objection raised by the Government Advocate and in the wake of other petitions pending in relation to handing over the administration of the Temple, the Government Advocate would even contend that the present petition is one more in the batch of petitions seeking to challenge the order denotifying the Temple wherein the petitioners have no interest whatsoever
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in so far as the order is concerned. The fact that the petitioners have not produced any material in support of their contention would require that this Court should reject the petition at the threshold.
3. While it is true that the petitioners have not annexed any document to establish that they are working as poojaris at the concerned Temple, the petition would not merit consideration. However, it is open for the petitioners to challenge their removal at the appropriate time, if it is possible for the petitioners to establish their bonafides. The petition is rejected."
(underlining by us)
(b) Being aggrieved by the aforesaid order the petitioners preferred W.A.No.5131/2008 before the Division Bench at Dharwad Circuit Bench. In fact, the respondent - Mutt although not notified in the writ petition, however had filed a caveat petition expecting that a writ appeal would be filed by petitioners in W.P.No.30689/2008. Writ appeal was also dismissed by the Division Bench by judgment dated 15/12/2008. The relevant portion of the judgment reads as under:
"10. The contention that the Government has no power to de-notify the Temple after the
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notification U/s. 23 of the Act is an untenable contention. The power to issue notification includes incidental power of modification, cancellation and revocation etc., The learned Single Judge after hearing the appellants and respondents No.1 to 4 has dismissed the petition on the following grounds:
1. That the appellants have failed to produce any material to show that the first appellant has got right to conduct worship in the Temple.
2. The petitioners have no legal interest to challenge the impugned notification at Annexure-A, which declares that the Temple is one attached to the Math of the 5th respondent.
3. The appellant either at the time of filing the appeal nor at the time of hearing of the appeal, have produced documents to show that the first appellant right to worship in the Temple as 'Archak/Upadivant'.
11. The 5th respondent was not notified and heard in the writ petition. The 5th respondent for the first time in the appeal has filed objections along with 19 documents to substantiate the contention that the Temple is attached to the Math and that Temple has been under the supervision and management of the Math for over centuries.
12. The counsel for the 5th respondent referred to the registered by laws regarding management of the Temple at Annexure-R-14 dt:
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06/07/1953 to buttress the fact that the Temple is attached to the Math and that the management is supervised by the Math all through even after the advent of Bombay Public Trust Act. The counsel for the 5th respondent submitted that the Government after taking necessary legal opinion from the Advocate General has issued notification at Annexure-A.
13. After carefully going through the various documents produced by the 5th respondent, we refrain from expressing any judicial view on the correctness and legal implication of the documents.
The Government exercising executive powers U/s. 1(4) has issued notification at Annexure-A and also de-notified the Temple from the list published u/s
23. The question whether the Temple is attached to the Math is a mixed question of fact and law. The documents produced by the 5th respondent in this appeal cannot be considered as conclusive proof of the fact. The disputed questions of fact cannot be decided in writ jurisdiction. It is just and necessary that the disputed questions of fact have to be tried and decided by the competent Civil Court, where the parties will have the required opportunity to prove their contentions and to meet the case of each other.
15. The learned Single Judge has rightly found that the petitioners have not produced any iota of material to prove that the first appellant is a
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upadivanta having right of conducting worship in the Temple as Archak. It is also held that the appellants in the writ petition have not produced any documents to contradict the notification at Annexure-A that the Temple is not attached to the Math. Even in this appeal the appellants have not produced any documentary material to substantiate their contentions in the writ petition.
16. It is pertinent to note that the impugned notification at Annexure-A, makes it explicitly clear that the customs and traditions of the Temple that have been followed all through, would not be disturbed. The counsel for the 5th respondent submits that 5th respondent would not effect any change or disturb the traditions and customs of the Temple. It is also submitted that the 5th respondent has considered the cases of Upadivantas and recognised their right, which they have enjoyed as custom and tradition of the Temple. In the present case, it is submitted that the first appellant can apply to the 5th respondent and get his right registered as Upadivanta having a right to conduct worship in the Temple. If such request is made, the 5th respondent would fairly consider the request and would recognise the right. It is needless to say that if the 5th respondent overlooks the valid material produced by the first appellant and rejects the request, the first appellant is always entitled to invoke jurisdictions of the Civil Court to vindicate his right.
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In view of the above discussion and reasons the writ appeal is dismissed."
(underlining by us)
(c) Challenge to the judgment of the aforesaid Division Bench was made by the second petitioner in W.P.No.30609/2008 and one more petitioner by filing separate Writ Petition Nos.62831-62833/2010. The said writ petitions were dismissed by the Division Bench by order dated 19/04/2010 with the following observations:
"6. However, learned senior counsel appearing for the petitioners, would submit that notwithstanding the impression created by this judgment that the notification which was under question having been indirectly approved not only in the order passed by the learned single judge in the writ petitions, but also affirmed in the Judgment of the division bench which amounts to preemptive order against the petitioners even when they have not been given any opportunity to present their version. It is with this apprehension, the writ petitioners have come up before this court.
7. At our request, Sri Subramanya Jois, learned senior counsel appearing for the petitioners has taken us through the Judgment of the division Bench rendered in writ appeal No.5131 of 2008 and in an elaborate manner.
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8. We do not find anywhere any expression on the merits of the validity of the notification of the year 2008 and if so the relief sought for in the writ petitions definitely do not come squarely within the scope of the relief that can be sought for not only in terms of the Judgment of the Constitution Bench of the Supreme Court in SHIVDEO SINGH's case [supra], but also in the later Judgment of the Supreme Court wherein it is followed and applied i.e., in POHLA SINGH's case [supra].
9. In this view of the matter, while technically the writ petitions may not be tenable and office objections has to be upheld, apprehension of the writ petitioners is more imaginary than real. We have only to dismiss these writ petitions reserving liberty to the writ petitioners to pursue the relief in the writ petitions which is already pending before this court.
10. Without prejudice, these writ petitions are dismissed."
(underlining by us)
(d) Further, reference has been made to the judgment of the Division Bench of this Court in W.A.No.5131/2008 in the Special Leave Petitions challenging order of the Division Bench of this Court holding that the Public Interest Litigations were maintainable by order dated 01/10/2010. While dismissing the said special
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leave petitions, the Hon'ble Supreme Court inter alia opined as under;
"It was also submitted that another Bench had dismissed the Writ Appeal No.5131/2008 involving similar issue on the ground that the matter involved mixed question of fact and law on 15/12/2008 and that judgment has not been noticed in the impugned order. The issue whether the said decision in W.A.No.5131/2008 will be a ground for dismissal of the present writ petitions and whether the writ petitions have to be dismissed on that ground is also open to be urged before the High Court at the time of final hearing of the writ petitions. All questions including the question of maintainability with reference to the contention that the matters involve mixed question of fact and law can be urged before the High Court."
151. Learned senior counsel, Sri Raghavan, contended that having regard to the observations of the Hon'ble Supreme Court, it is for the petitioners to establish that Gokarna Temple is not attached to the Mutt, as it is the petitioners' case that even though the said Temple is not attached to the Mutt, the State Government handed over the Temple to the respondent - Mutt, which is impugned in
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these writ petitions. Thus, the contention is, petitioners must establish the negative, namely, that the Temple is not attached to the Mutt whereas the categorical contention of the respondent - Pontiff as well as the Mutt is that the Temple has always been attached to the Mutt and that the Act is not applicable to the Temple. Further, it is contended that the State Government rightly deleted the Temple from the said Notification by Government Order dated 12/08/2008 and handed it over to the respondent - Mutt.
152. A reading of the order of the Division Bench passed in W.A.No.5131/2008 clearly indicates that the party who asserts the fact that the Temple has been attached to the respondent - Mutt has to establish the same before the Civil Court, as it is a disputed question of fact. In fact, it is the case of the respondent-Pontiff as well as the Mutt that, Gokarna Temple was always attached to the Mutt and it is on that basis, the State Government deleted the Temple from the List of Notified Institutions and handed it over to the respondent - Mutt. This is however, disputed by the petitioners by contending that the Temple was
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rightly notified as it was registered under the provisions of BPT Act vide Section 23(e) of the Act and that it could not have been deleted and handed over to the respondent - Mutt.
153. Since the Division Bench of this Court in Writ Appeal No.5131/2008 has made pointed observations regarding proof of the fact that Gokarna Temple is attached to the respondent-Mutt before the competent civil Court and has not entered upon the said controversy to give its finding on the said fact despite voluminous documents produced before the Division Bench in the Writ Appeal which are also produced along with statement of objections, we think it is not proper to delineate on the said aspect of the matter in the instant case. It is a settled position in law that when there is a disputed question of fact, the burden of proof lies on whoever desires the Court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts and must prove that those facts exist. Thus, when a person is bound to prove the existence of any fact, the burden of proof lies on that person. This is
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evident from a reading of Section 101 of the Indian Evidence Act, 1872 ("Evidence Act" for short). Section 101 is based on the rule that the burden of proving the fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; This is expressed by a Latin maxim "ei incumbit probatio qui dicit, non quit negat" which means 'a negative is usually incapable of proof'. Further, Section 102 provides that the burden of proof in a suit or a proceeding lies on that person who would fail, if no evidence at all was tendered by either side. There are, however, exceptions to the general rule as to the burden of proof in Sections 101 and 102 on the burden of adducing evidence: (i) When a rebuttable presumption of law exists in favour of a party, the onus is on the other side to rebut it. In some cases presumption of fact also shifts the onus on the other side. (Section 114 of Evidence Act). (ii) When any fact is especially within the knowledge of any person, the burden of proving it is on him. Further, the onus is always on a person who asserts a proposition or fact which is not self-evident. Thus, in short the ordinary rule is that the burden of proof is also on a
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person making the affirmative allegation which, in the instant case is on the respondents, who have asserted that Gokarna Temple was attached to the respondent-Mutt. Further, when a negative fact has to be proved, a party asserting it can be expected to do nothing more than to substantiate his allegations prima facie.
154. As already stated, Section 102 of the aforesaid Act embodies a test for ascertaining on which side the burden of proof lies. It means that when the burden of proof lies on a party, that party must fail if he does not discharge the burden by giving evidence. In order to determine on which of two litigants the burden of proof lies, the test is "which party would be successful if no evidence at all were given."
155. The party on whom the burden of proof lies in the first instance, may shift it to the other by proving facts giving rise to a presumption in his favour. Thus, the elementary rule in Section 101 is inflexible and must apply to all cases. Section 102 makes it clear that the initial onus is always on the plaintiff and if he discharges that onus and
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makes out a case which entitles him to relief, the onus shifts on to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. The amount of evidence required to shift the burden of proof depends on the circumstances of each case.
156. Section 103 of the Evidence Act states that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any other person. This Section amplifies the general rule in Section 101 that the burden of proof lies on the person who asserts the affirmative of the issue. It lays down that if a person wishes the court to believe in the existence of a particular fact, the onus of proving that fact is on him, unless the burden of proving it is cast by any law on any particular person. For example, in probate cases the burden of proving the testamentary capacity of the testator, and that he was of sound mind, lies upon the party propounding the Will. Similarly, a person claiming the benefit under Section 14 of Limitation Act has the onus to prove that he
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acted in good faith in instituting earlier proceedings. Thus, the finding that Gokarna Temple is attached to the respondent-mutt need not be given in these batch of writ petitions. This is due to two reasons; firstly, because such a finding involves an answer to a mixed question of law and facts, which according to the Division Bench which disposed off W.A.No.5131/2008 could only be given a competent civil Court. Secondly, what is assailed in these writ petitions is the correctness of Government Order dated 12/08/2008 wherein, the controversy requires an adjudication in the realm of Administrative Law by exercising jurisdiction under Article 226 of the Constitution by way of judicial review.
157. In the realm of Administrative Law, ordinarily the general rule is that the onus of proving his case falls on the person who challenges an action of the administration. The reason is that there is a presumption that an administrative act is valid. Therefore, if a person says that a particular administrative decision or action is vitiated because of some flaw in the decision-making process, then
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it is for him to establish the flaw to the satisfaction of the Court.
158. In view of the above discussion and bearing in mind the judgment of the Division Bench of this Court in W.A.No.5131/2008, wherein it has been emphatically observed that the question whether, the Temple is attached to the respondent - Mutt is a mixed question of fact and law and that the documents produced by the Mutt in the said appeal was not conclusive proof of the fact, the said disputed question cannot be decided in writ jurisdiction, but by the competent Civil Court. The said judgment has attained finality. It is held that the respondent - Mutt and the Pontiff cannot contend that the State Government was right in stating in the impugned Government Order that Gokarna Temple is attached to the Mutt and therefore, had to be handed over to the Mutt by deleting it from the List of Notified Institutions. The question, as to whether, Gokarna Temple is attached to the Mutt or not is a disputed question of fact and is fraught with and wrangled in a controversy. Hence, no finding was given by the Division Bench in the
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aforesaid writ appeal in favour of the respondents herein. In the circumstances, we hold that the State Government could not have proceeded to handover Gokarna Temple to the respondent - Mutt on the ground that it is a Temple attached to the Mutt. Therefore, the State Government could not have issued the impugned Government Order dated 12/08/2008 by deleting the Temple from the List of Notified Institutions and handing over the same to the respondent - Mutt on the ground that the Temple was attached to the Mutt. The State Government has proceeded to issue the said order on the basis of assumptions, presumptions and conjectures being influenced by respondent - Mutt and its Pontiff in believing that the Temple was attached to the Mutt. The State Government did not conduct any independent enquiry before proceeding to handover Gokarna Temple to the respondent - Mutt after deleting the same from the List of Notified Institutions. Having regard to the judgment of the Division Bench in W.A.No.5131/2008, this Bench cannot also give a finding as to whether Gokarna Temple is a Temple attached to the Mutt on the basis of the voluminous
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documents produced by respondent - Mutt. These very documents were produced by the respondent - Mutt in W.A.No.5131/2008 by the respondent - Mutt, which refused to enter into the said controversy by giving a finding on the said disputed question of fact. Therefore, we also follow the set precedent and refrain from giving a finding as to whether Gokarna Temple is a Temple attached to the Mutt. The State Government could not have issued the impugned Government Order on the basis that Gokarna Temple was attached to the respondent - Mutt. Hence, we hold that petitioners have discharged their initial burden of proving that Gokarna Temple is not attached to respondent
- Mutt by placing reliance on the judgment of the Division Bench of this Court in W.A.No.5131/2008. Neither the State nor the private respondents have been successful in proving otherwise in the aforesaid matter.
159. The next limb of argument of learned senior counsel for the petitioners was that in the issuance of the impugned Notification, there was mala fides and that there has been colourable exercise of power. The aforesaid
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aspect of the matter could be considered by referring to certain decisions with regard to the manner of proof in the realm of Administrative Law in the first instance.
160. In Land Acquisition Collector vs. Durga Pada [AIR 1980 SC 1678], the Hon'ble Supreme Court has discussed on mala fide or colourable exercise of power, in the matter of issuing a declaration and notification for acquisition of land under Section 6 of the Land Acquisition Act, 1894 (hereinafter referred as "LA Act"). The Hon'ble Supreme Court held that the onus lay on the petitioner to satisfy the Court that there has been colourable exercise of power while issuing the aforesaid declaration. In the said case, it was opined that no material was produced by the petitioner to show that the assertion about the public purpose, as stated in the notification, was incorrect.
161. But in certain cases, the Court has shifted the onus of proof to the administrative authority to justify its order when under challenge. In Narayan vs. State of Maharashtra [AIR 1977 SC 183], the consideration was the applicability of the urgency clause
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under Section 17 of the LA Act when a Preliminary Notification was issued under Section 4 of the LA Act. The Bombay High Court had quashed the Notification issued under Section 17(4) of the said Act on the ground that the Government had not discharged its burden of showing facts constituting urgency, which impelled it to give directions under Section 17(4) by dispensing with the enquiry under Section 5-A. The Court insisted that the burden of proving such circumstances atleast prima facie was on the Commissioner therein, which he had failed to discharge. Before the Hon'ble Supreme Court, the Government stated that the question whether an urgency existed or not for exercising the power under Section 17 was a "matter solely for the determination" of the State Government or the Commissioner. The Hon'ble Supreme Court, however, observed that even when the formation of an opinion by an administrative authority is a subjective matter, the validity of the opinion would still be judged by applying the well established principles of Administrative Law in this area, such as,
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consideration of relevant material, absence of perversity or arbitrariness, non-application of mind, unreasonableness etc.
162. The main question decided in the aforesaid case was that of burden of proof, whether, the petitioner was required to bring the material before the Court to support his contention that no urgency existed, or whether once the petitioner denied that any urgency existed, it was incumbent on the Government to satisfy the Court that there was material upon which the respondents could reach the opinion as mentioned in Section 17(4) of the LA Act. The Hon'ble Supreme court referred to Sections 101, 102 and 103 of the Evidence Act, which we have referred to above, which embody the general rule that the parties who desire to move the Court must prove all facts necessary for that purpose; Section 106, which provides that when any fact is especially within the knowledge of any person, the burden of proving the fact is upon him; and that the petitioner could not invoke Section 106 to place the
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burden on the Government. The presumption could be displaced by circumstances indicating that the power lodged in an authority or official had not been exercised in accordance with law. It ruled that it was for the petitioner to substantiate the grounds of his challenge either by leading evidence or showing that some evidence had come from the respondent's side indicating that his challenge to an order was made good. If the petitioner failed to discharge that onus, his petition would fail. The original onus laid down under Sections 101 and 102 could not be shifted by using Section 106, although the particular onus of proving facts and circumstances lying especially within the knowledge of the official who formed the opinion resulting in Section 17(4) notification rested upon that official. If a recital in the order was defective, it could obviate the need to look further. But if the recital was defective as not indicating material or circumstances on which the order was based, Section 114, Illustration (e) presumption, would stand displaced and the petitioner could be said to have discharged his general onus. The
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Hon'ble Court stated the principle as to discharge of onus of proof in the following words:
"In the cases before us, if the total evidence, from whichever side any of it may have come, was insufficient to enable the petitioners to discharge their general or stable onus, their petitions could not succeed. On the other hand, if, in addition to the bare assertions made by the petitioners, that the urgency contemplated by Section 17(4) did not exist, there were other facts and circumstances including the failure of the state to indicate facts and circumstances which it could have easily disclosed if they existed, the petitioners could be held to have discharged their general onus."
The Apex Court further observed thus in the said case and held that:
"If it appears upon an examination of the totality of facts in the case, that the power conferred has been exercised for an extraneous or irrelevant purpose or that the mind has not been applied at all to the real object or purpose of a power, so that the result is that the exercise of power could only serve some other or collateral object, the Court will interfere."
In the aforesaid case, whether "the conditions precedent to exercise of power under Section 17(4) had
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been fulfilled or not" was the issue that the same could be decided rightly "after determining what was the nature of compliance with the conditions of Section 17(4) required by the Act."
163. The Apex Court further held that in some cases, facts might be involved, which would be within the knowledge of the authorities concerned. If the authorities did not discharge the special burden imposed by Section 106 of the Evidence Act, without even disclosing a sufficient reason for their abstention from disclosure, they must take the consequences flowing from the non-production of the best evidence which could be produced on behalf of the State if its stand was correct. In the said case, it was held that the recital in the notification being defective, the burden rested on the State to remove the defect if possible by evidence to show that some exceptional circumstance existed which necessitated the elimination of an inquiry under Section 5A of LA Act and that the Commissioner's mind was applied to that essential question. Therefore, the
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burden could correctly be placed, under Section 106 of the Evidence Act, upon the State to prove those special circumstances. The Hon'ble Supreme Court further observed that the failure of the State to produce the evidence of facts especially within the knowledge of the officials, which rested upon it under Section 106, taken together with the attendant facts and circumstances including the contents of the recitals, had enabled the petitioners to discharge their burden under Sections 101 and 102 of the Evidence Act. Thus, the aforesaid pronouncement of the Hon'ble Supreme Court compels the State/authority to reveal facts and circumstances on which it takes a particular objective action and not take shelter behind the statutory formula conferring discretion.
164. Further, administrative decisions based on discretionary power could also be quashed because no reasons were adduced at any stage by the concerned authority for taking a particular action. That mere abstract justification replete with conjectures would not
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be enough to satisfy the Court. Further, when an order is based on certain grounds, its validity must be judged with reference to the reasons mentioned therein. Further, these reasons cannot be supplemented by fresh reasons in the shape of an affidavit or otherwise to justify the order, vide Mohinder Singh Gill vs. Chief Election Commissioner [AIR 1978 SC 851]; Commissioner of Police vs. Gordhandas [AIR 1952 SC 16]. The Courts have generally shown reluctance to go beyond the order communicated to the individual and the affidavits, documents and other papers filed by the Government, and to examine the Government record to find out the real reasons for the administrative action in question. This is a self-imposed limitation, but there is nothing to prevent the Court from examining the record in the interest of doing justice if it so desires. The Court, however, has the undoubted power, subject to any privilege or claim that may be made by the State, to send for the relevant confidential file of the Government and peruse it for its own satisfaction without using it as evidence. Though in recent years,
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Courts have called for the relevant record from the concerned authority to satisfy themselves that there were materials on the basis of which the authority could have been satisfied to take the action impugned. Thus, the Court can consider the Government files to satisfy themselves that the power has not been exercised without any reason or material. Thus, it is a settled position that whenever an authority has to form an opinion on a question, it does not mean that it has to be formed in a subjective or casual manner. That opinion must be formed objectively on relevant considerations, vide Union of India vs. Jesus Sales Corporation [AIR 1996 SC 1509] (Source:Principles of Administrative Law, 7th Enlarged Edition 2011, M.P.Jain and S.N.Jain).
165. Thus, the answer to the question, as to, whether, the State Government could have deleted Gokarna Temple from the List of Notified Institutions on the premise that it is a Temple attached to the Mutt is, in the negative. This is because of two reasons: firstly, it is nobody's case
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that, it was erroneously included in the List of Notified Institutions by Government Notification dated 30/04/2003 (01/05/2003) as it was so included by virtue of Section 23(e) of the Act. Secondly, it has not been established that the Temple was attached to the Mutt and hence, had to be deleted from the List of Notified Institutions to be handed over to the respondent - Mutt. Further, the same is a disputed question of law and fact as held and observed by the Division Bench of this Court in W.A.No.5131/2008. The claim of the respondents that the Temple is attached to the Mutt, which is seriously disputed by the petitioners has not been established before any Court of Law.
166. The argument of the respondent - Mutt that the petitioners must establish that the Temple is not attached to the Mutt is incorrect as the existence of an affirmative fact that Gokarna Temple is attached to the Mutt must be proved by a party who asserts the said fact, which is the respondents in the instant case and not by the petitioners who have asserted that the Temple is not attached to the respondent - Mutt. This is having regard to the provisions
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of Sections 101 to 106 of the Evidence Act and the judgments referred to above.
167. When the Division Bench of this Court in W.A.No.5131/2008 has categorically held that Gokarna Temple, being a Temple attached to the respondent - Mutt is a disputed question of law and fact, which could be established only before a Civil Court, in our view, the State Government could not have deleted the Temple from the List of Notified Institutions on the assumption that it is attached to the respondent - Mutt and thereby handover the same to the said Mutt. Therefore, the foundation or basis of the impugned Government Order dated 12/08/2008 proceeds on twin conjectures and assumptions:
the first, being that the Temple is attached to the respondent - Mutt and the second, that it must be excluded from the List of Notified Institutions as it was erroneously included therein and therefore, to rectify the same, Section 21 of the General Clauses Act has been resorted to.
Whereas, the State Government has sought to achieve the aforesaid twin purposes on a wholly erroneous foundation
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that the Temple was attached to the respondent - Mutt when it was not so. The substratum of the Government Order is without any basis and hence, the issuance of the Government Order, in our view, was unwarranted, illegal and arbitrary.
168. Then the question would remain as to why and how the State Government took the initiative to issue the impugned Government Order. To answer the same, the background facts, already narrated, would not require a detailed reiteration except highlighting a few facts. That the State Government by Notification dated 30/04/2003 (01/05/2003) notified the Temple in question under Section 23 of the Act. This is because the Temple was governed under the provisions of the BPT Act and it is a Public Temple. There is also no dispute about this fact. Thereafter, the State Government issued Notification dated 17/11/2000, appointing an Executive Officer to the Temple. The same was challenged in W.P.No.17580/2006 by the petitioners in W.P.No.30609/2008. A learned single Judge of this Court granted an order of status quo on 12/12/2006
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and the said order was continued till the disposal of the said writ petition. During the operation of the interim order of status quo, the President of the Upadivanta Mandala submitted letter dated 01/02/2008 to His Excellency Governor of Karnataka, as the State was under President's Rule then, with a copy to the Commissioner, Endowments seeking dropping of all proceedings initiated by the State regarding the Temple and handing over the administration etc., of the same to the respondent - Mutt. There was considerable correspondence between the Commissioner, Endowments, Deputy Commissioner, Uttara Kannada District and Tahsildar, Kumta, on the question of handing over of the Temple to the respondent - Mutt. In fact, there were divergent views expressed by various authorities. In this background, the Commissioner, Endowments wrote to the State Government to the effect that the opinion of the learned Advocate General for the State of Karnataka be taken with regard to the deletion of the Temple from the List of Notified Institutions vide Government Notification dated 30/04/2003 (01/05/2003). This communication is dated 14/05/2008 bearing No.CR 45/2007-08. On the very
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same day i.e., on 14/05/2008, the Secretary, Revenue Department wrote to the Commissioner, Endowments by letter No.KUM.E.42.MU.AA.BE/2008, dated 14/05/2008 to the effect that the Law Department had already opined that no Temple should be deleted from the List of Notified Institutions and therefore, no such proposal for such deletion be sent and another letter No.EKAROOPA SHAASANA.CR.45/2007-08, DATED 14/05/2008. In fact, on 15/05/2008, the Deputy Commissioner, Uttara Kannada District wrote to the Commissioner, Endowments stating that objections had been received from devotees with regard to handing over of the Temple to the respondent - Mutt and to take suitable action thereon.
169. When the matter stood thus, one more Memorandum dated 17/05/2008 was submitted by the Upadivanta Mandala to His Excellency, Governor of Karnataka, seeking deletion of the Temple from the List of Notified Institutions/Temples and its administration and management be vested with and bestowed upon the Mutt. As already noted, during this period there was President's
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Rule in the State i.e., from 20/11/2007 till 30/05/2008. In fact, on 27/05/2008, the Secretary, Revenue Department by his letter addressed to the Commissioner, Endowments stated that the latter's proposal had been rejected. Therefore, on the basis of the opinion of the Law Department there was a quietus given to the request made by Upadivanta Mandala seeking deletion of the Temple from the List of Notified Institutions and handing over the Temple to the respondent - Mutt.
170. The elected Government assumed Office on 30/05/2008 and the requests of the Upadivanta Mandala as well as that of the respondent - Mutt dated 12/04/2008 seeking deletion of the Temple from the List of Notified Institutions and handing over the same to the Mutt were resurrected as it were. In that context, on 21/06/2008, Commissioner, Endowments wrote to the then Chief Minister's Principal Secretary along with a "Note" on the entire matter seeking deletion of the Temple from the List of Notified Institutions. At whose instance or what was the catalyst for the communication is not unknown. We have
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closely perused the record. The "Note" also refers to the letters of the Secretary, Revenue regarding dropping of the proposal and in fact rejecting the proposal of the Commissioner, Endowments made earlier. The said letter is dated 27/05/2008. But letter of the Commissioner, Endowments reiterated that the opinion of the learned Advocate General must be obtained in the matter.
171. Subsequently, on 26/07/2008, the Secretary, Revenue Department sought opinion from the learned Advocate General for the State of Karnataka on the "legality of deletion of the Temple from the List of Notified Institutions". Thus, a truncated reference was made to the learned Advocate General and his opinion was sought only on the legality of the deletion of the Temple from the List of Notified Institutions. Learned Advocate General was not appraised of the proposal nor any opinion was sought on the legality of handing over the Temple to the respondent - Mutt. Learned Advocate General gave his opinion on 24/07/2008 by placing reliance on Section 21 of the General Clauses Act with regard to deletion of the
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Temple from the List of Notified Institutions so as to rectify a "mistake", which may have occurred by including the Temple in question in the List of Notified Institutions. However, that was not the reason at all for seeking learned Advocate General's opinion. The real reason was to delete the Temple from the List of Notified Institutions because it was to be handed over to the respondent - Mutt. This purpose/reason was not made known to the learned Advocate General. Thus, in our view, the opinion of learned Advocate General cannot be relied upon by the respondent
- State, Mutt or Pontiff in support of their case. It is of no assistance to them as the said opinion proceeds altogether on a different basis or premise. In fact, the contentions of the learned senior counsel for the petitioners that the opinion of learned Advocate General is not without any flaw, has considerable force and has to be accepted.
172. Thus, the opinion of learned Advocate General does not give any credence to the Government Order dated 12/08/2008 impugned herein. On the other hand, the said opinion being truncated and incomplete on account of the
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nature of reference made to him in a constricted manner, by actually withholding from him the real purpose, facts and reasons behind the proposed impugned action of the State Government, the same cannot be the basis of the impugned Government Order. It is devoid of any legal sanctity, because the said opinion has been obtained without placing before the learned Advocate General the top Law Officer of the State, the true intent/purpose of the proposed Government action i.e., the deletion of the Temple from the List of Notified Institutions was being sought in order to handover the same to the respondent - Mutt. If the State Government thought that the opinion of learned Advocate General would lend a semblance of legality to the impugned Government action, it is not so. The said opinion as referred to in the impugned order dated 12/08/2008 could not be the basis for the State Government issuing the same. The real reason being to confer a benefit to respondent - Mutt, presently headed by respondent No.6 - Pontiff, the State Government issued the impugned order dated 12/08/2008.
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173. The File Notings in this regard culminating in the following relevant portion, which is in Kannada is extracted as under along with its English translation:
"PSCM/1212/08 6/8/08
38) ªÀiÁ£Àå ªÀÄÄRåªÀÄAwæUÀ¼ÀÄ, PÀArPÉ 36 gÀ£ÀÄß C£ÀĪÉÆâ¸À§ºÀÅzÀÄ, ºÁUÀÄ F zÉêÀ¸ÁÜ£À ºÁUÀÄ ¥ÀjªÁgÀ zÉêÀ¸ÁÜ£ÀUÀ¼À£ÀÄß F »AzÉ ²æà ¸ÀA¸ÁÜ£À C¢Ã£ÀzÀ°ègÀĪÀÅzÀjAzÀ FUÀ CªÀgÀ ²æà gÁªÀÄZÀAzÀæ¥ÀÅgÀ ªÀÄoÀzÀ ^ C¢üãÀPÉ ªÀ»¹ (gÁªÀÄZÀAzÀæ¥ÀÅgÀ ªÀÄoÀzÀ C¢üãÀPÉÌ) PÉÆqÀ®Ä C£ÀĪÉÆâ¸À§ºÀÅzÀÄ.
Sd/-
Secretary to CM 7/8/08 SCM-379-08 7/8/08
39) ªÀiÁ£Àå ªÀÄÄRåªÀÄAwæAiÀĪÀgÀÄ C£ÀĪÉÆâ¸À¯ÁVzÉ Sd/-
©.J¸ï. AiÀÄrAiÀÄÆgÀ¥Àà ªÀÄÄRåªÀÄAwæ 7/8/08"
"PSCM/1212/08 6/8/08
38) Hon'ble Chief Minister, Para 36 may be approved, as this Temple as well as allied Temples (earlier under the control of Sri Samsthana Sri Ramachandrapura Mutt) now, handing over the same to the control of (Sri Ramachandrapura Mutt), may be approved.
Sd/-
Secretary to CM 7/8/08
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SCM-379-08 7/8/08
39) Hon'ble Chief Minister, Approved.
Sd/-
(B.S. Yeddyurappa) Chief Minister 7/8/08."
(Words in brackets are the interpolated portion.) A perusal of the same would clearly indicate that in the file Notings put-up for the signature of the then Chief Minister, there is a clear interpolation to the effect that the Temple was attached to the Mutt. The same is not forthcoming in the decision making process as such. This is contrary to what has been stated by the Division Bench of this Court in W.A.No.5131/2008 as it is a disputed question of fact. Further, insertion of the same clearly reveals that it was sought to be asserted by the State Government that the Temple was attached to the Mutt even in the absence of the same having been ever established before a competent Court of law as it is a disputed fact. Further, the State Government not having brought to the notice of the learned Advocate General the said aspect of the matter, sought an opinion from him. In fact, the State Government kept the learned Advocate General in the dark
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about its intention to transfer the Temple to the respondent
- Mutt while obtaining an opinion only as to whether the Temple in question could be deleted from the List of Notified Institutions.
174. It is in this background, learned senior counsel and learned counsel appearing for the petitioners have raised arguments about the impugned Government Order dated 12/08/2008 being an instance of colourable as well as arbitrary exercise of power and that the Government Order being fraught with legal malice as the State Government had no competence at all to delete the Temple from the List of Notified Institutions for being handed over to the respondent - Mutt.
175. In light of the above discussion, the exercise of discretion could be delineated upon in the present context. As already noted, the submissions made by learned senior counsel for petitioners are in the realm of mala fides, improper purpose, ignoring relevant considerations, colourable exercise of power, undue haste, and authority exercising discretion without maintaining
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independence and impartiality i.e., discretion influenced by improper motive or improper purpose. Further, exercise of discretion has to be within certain basic parameters so as to promote the object of the particular statute, which means that discretionary power should not be used to achieve a purpose not contemplated by a particular statute that confers power. In other words, power must not be abused and should not be exercised arbitrarily and dishonestly.
176. More specifically speaking, the expression mala fide is frequently used to denote improper exercise of power or abuse of discretion or exercise of power for improper purpose. If the exercise of power is for an extraneous, irrelevant or non-germane consideration, it could be charged with legal mala fides. Thus, mala fides in narrow sense means bad faith, in the exercise of power, or a deliberately malicious or fraudulent purpose, on the part of the decision-maker. Mala fide exercise of power is an abuse of power and hence invalid. Pratap Singh vs. State of Punjab [AIR 1964 SC 72] deals with the concept of mala fides stemming from a private or personal grudge of
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authority. But, where action is taken with political motives, it may also be characterized as mala fide and hence, vitiated, vide Rowjee vs. State of Andhra Pradesh [AIR 1964 SC 962].
177. Further, when the purpose in respect of which an action is taken is not expressly stated in the statute, Courts have to construe the statute to ascertain the purposes for which power has been conferred. Improper purpose is an important tool to control exercise of discretionary powers. The said principle will apply when an authority while professing to exercise its power for the statutory purpose, really employs in furtherance of some other purpose or object, then it amounts to a bad exercise of power. In such a case, it may be necessary to go into the motives and real reasons, which the administrative action has been taken. The order of a statutory authority must be judged on the basis of the contents thereof and not as explained in the affidavit. It has been held that the actions of the statutory authority should not defeat the specific purposes for which it was constituted. Even if the
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action of the authority is motivated by public interest (as distinguished from private interest), but it may be different from what is contemplated by the statute under which the action has been taken. The test is not to see whether the authority has acted in good faith or not, but what is relevant is to assess whether the purpose in view is one sanctioned by the statute which confers power on the authority concerned.
178. Moreover, if discretionary power has been exercised for an unauthorized purpose, it would not be really material whether the exercise of power was in good faith or in bad faith. Padfield vs. Minister of Agriculture & Fisheries [(1968)1 All ER 694] is a locus classicus on the concept of improper purpose in the realm of Administrative Law. The said case demonstrates that a minister is subject to judicial control for the exercise of his discretionary power in addition to his constitutional responsibility to the Legislature or Parliament as the case may be. In Collector, Allahabad vs. Raja Ram [AIR 1985 SC 1622], the Hon'ble Supreme Court has observed
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that "where power is conferred to achieve a certain purpose, the power can be exercised only for achieving that purpose" and the Court has emphasized that "where power is conferred to achieve a purpose it has been repeatedly reiterated that the power must be exercised reasonably and in good faith to effectuate the purpose". Good faith would mean "for legitimate reasons". Thus, if power is used to achieve an objective other than the one authorized by the law, the action of the authority is invalid.
In some cases, the Courts have used the expression colourable exercise of power. In one sense, colourable exercise means that under the colour or guise of power conferred for one purpose, the authority is seeking to achieve some other purpose, which he is not authorized to do under the law in question. Thus, the exercise of power is illegal, but has been given the guise of legality. Further, in Collector, Allahabad vs. Raja Ram (supra), Supreme Court has also stated that where power is exercised for extraneous or irrelevant considerations or reasons, it is unquestionably a colourable exercise of power or fraud on
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power and the exercise of power is vitiated. Sometimes the expression "colourable" has also been used at time when there is no rational material on the basis of which the authority could have come to the necessary satisfaction as required by law in question, or the ground of its satisfaction are such that no reasonable person could have possibly arrived at his satisfaction. This could also be called as unreasonableness.
179. Many a time, discretionary action is taken by an authority even when there is no material on record for taking action in question. Rothas Industries vs. S.D. Agarwal [AIR 1969 SC 707] is a significant ruling on this aspect where there is no material upon which the authority could form the requisite subjective opinion, the Court may infer that the authority passed order without applying its mind, and so the order will be invalid. Such an action would be arbitrary and capricious and sometimes also termed as unreasonable. When an action is unreasonable, then it is in violation of Article 14 of the Constitution. Hon'ble Bhagawati J., in Maneka Gandhi vs. Union of
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India [AIR 1978 SC 597], has observed that the principle of reasonableness "which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence". Similarly, in Express Newspaper Pvt. Ltd. vs. Union of India [AIR 1986 SC 872], the Hon'ble Supreme Court has reiterated that arbitrariness is the anti thesis of Article 14 of the Constitution. Thus, arbitrary exercise of its power by the Government is the negation of the equality clause under Article 14 and thus would have to be struck down. Article 14 is a great source of power to control discretionary action on the part of Government and other instrumentalities of the State.
180. In view of the above discussion, by assuming that the State Government had the power or competence to issue Government Order dated 12/08/2008, we answer point No.3 by holding that the said power was not exercised in accordance with law for two very vital reasons: firstly, the substratum of the impugned Government Order proceeds on the basis that the Gokarna Temple was attached to the Mutt and therefore, it could not have been a
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Notified Institution and that the provisions of the Act did not apply to it. The said foundational basis on which the impugned Government Order proceeds is erroneous and hence, on that score, the impugned Government Order is vitiated. Secondly, having regard to the aforesaid discussion, we also hold that the exercise of power by the State Government is not for a bona fide purpose and further, it is not strictly a case of colourable exercise of power, but on the other hand, in the absence of there being any power vested with the State Government to delete a Temple from the List of Notified Institutions for the purpose of handing it over to a private Mutt, which the impugned Government Order sought to do, is, in fact, an abuse of discretion. That the State Government did not have any competence to issue such a Government Order. The action of the State Government is tainted as it is arbitrary, which is evident from the file Notings extracted above. In fact, the discretion exercised by the State Government is influenced by an improper motive and for an improper purpose and although it is issued on the basis of the opinion of the learned Advocate General, there has
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been misrepresentation and suppression of facts while obtaining such an opinion from the top Law Officer of the State and hence, the action of the State Government culminating in the issuance of the impugned Government Order dated 12/08/2008 is vitiated. Therefore, the impugned Government Order dated 12/08/2008 is liable to be quashed and is quashed. Accordingly, point No.3 is answered.
Re: Point No.4:
(4) If the answer to point No.3 is in the negative, what follows?
181. Learned senior counsel for respondent - Pontiff, Sri Raghavan, contended that even if this Court is to come to the conclusion that the impugned Government Order is vitiated as it is not in accordance with law, such a conclusion may not lead to striking down of the illegal order although it is lawful to do so. In support of his submission, he relied upon two judgments. The case of Chandra Singh and Others vs. State of Rajasthan and Another [(2003) 6 SCC 545] has been pressed into service to
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contend that issuance of a writ of certiorari is a discretionary remedy and that the High Court, exercising its extra-ordinary jurisdiction under Article 226 of the Constitution, may not strike down an illegal order, although it would be lawful to do so. By placing reliance on Krishnadevi Malchand Kamathia and Others vs. Bombay Environmental Action Group and Others [(2011) 3 SCC 363] it was contended that even if an order/notification is void or voidable, it requires to be declared so by a competent forum and it is not permissible to ignore the said order merely because in his opinion, the order is void. Whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum. Further it has been observed that, even if the invalidity of an order is challenged before the Court in a given circumstance, the Court may refuse to quash the same on various grounds including, the standing of the petitioner or on the ground of delay or on the doctrine of waiver or for any other legal reason.
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182. It is also contended that this Court in exercise of its jurisdiction under Article 226 of the Constitution may not allow the writ petitions, but mould the relief appropriately. Learned senior counsel further submitted that in the last decade, since the issuance of the impugned Government Order, the respondent - Mutt, under the leadership of the respondent - Pontiff, has been successfully managing the affairs of Gokarna Temple. That several steps have been taken for catering to the needs of the general public and devotees who visit the Temple. Innumerable arrangements have been made for the convenience of the devotees of the Temple; that cleanliness in the Temple has been improved and that the management of the Temple by the respondent - Mutt for the last decade has not been disturbed. However, we are not impressed by such arrangements or the affidavits and other material filed by the respondent - Mutt or on behalf of the Pontiff in support of the aforesaid submissions. This Court while exercising its jurisdiction under Article 226 is bound by rule of law. Although its discretionary power under the said article is expansive and wide, one of the important
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principles in law is that the ends cannot justify the means. Even if for a moment this Court is to accept the submissions of the learned senior counsel for the respondents that, there have been many reforms and improvements introduced in Gokarna Temple in the last decade, which is controverted by petitioners' counsel, the same would not justify the issuance of the impugned Government Order dated 12/08/2008, which is inherently vitiated, per se illegal and beyond the competence of the State Government. This Court cannot be blind to the fact that it has held that the State Government has acted illegally and has handed over Gokarna Temple to a private Mutt and therefore, has quashed the said order. Hence, all submissions of learned senior counsel for the respondent - Pontiff to the effect that this Court may not interfere in the matter cannot be accepted rather, we strongly believe that any non-interference in the matter would be an infraction of rule of law and a dereliction.
183. Reliance could be placed in the case of State of Punjab and Others vs. G.S. Gill and Another
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[(1997) 6 SCC 129] wherein it is observed by the Hon'ble Supreme Court that Article 261 of the Constitution accords full faith and credit to the acts done by the executive and connects the Union and the States to further the goals set down in the Constitution (provided they are legally valid). The primary responsibility of an administrator is to perform his functions in the service of the nation as an enlightened citizen to strengthen a new democratic State. A dynamic bureaucracy is one which discharges the functions to enrich the integration of the social structure by wise decisions. That in public administration, responsibility is of highly personal and moral quality and is not necessarily related to formal status or power, although it is probably true that greater power ought to bring greater responsibility. Further it has been observed that the Departmental head is responsible for the actions of his subordinates, although in actual fact, he is not responsible for their use of power which, he must, of necessity, delegate to them. Legitimacy is primarily a feature of constitutional system. The bureaucracy shares the collective responsibility with political executive to effectuate the constitutional philosophy and
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public justice. Administrative responsibility lies in giving shape and content not only to the policies laid down in the Constitution and by the political executive but also applies them in given set of facts particularly when decisions of an administrative nature are taken as in the instant case.
In A.A.Gopalakrishnan vs. Cochin Devaswom Board and Others [(2007) 7 SCC 482], it has been observed that the properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their trustees/archaks/shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of "Fences eating the crops" should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and
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safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation.
184. It is further observed that Gokarna Temple being governed under the provisions of the BPT Act was notified under Section 23(e) of the Act. By the impugned Notification dated 12.08.2008, it has been deleted. The said Notification is liable to be struck down. As a result, the Temple continues to be a Notified Institution. Further, the provisions of BPT Act have been struck down and inapplicable as far as the State of Karnataka is concerned. Subsequently, the Charitable and Religious Trust Act, 1920, has been made applicable in its place by issuance of Notification by the State Government, possibly for that reason, the State Government did not constitute a Committee of Management for the Temple under the Act. The fact also remains that no hereditary trustee has been appointed for the Temple on the demise of Vighneshwara Damodara Dixit on 02/11/2004 under the provisions of any enactment. Further, no person has applied under the provisions of the Charitable and Religious Trusts Act, 1920,
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under which, any person could be appointed as a trustee of the Temple in question.
185. The power of the High Court under Article 226 is discretionary, but the Court's discretion to give relief must be exercised in a sound and reasonable manner and not in an arbitrary manner. The High Court can suitably grant the relief to a petitioner in order to achieve justice and to remedy injustice. Thus, a writ Court may not merely quash the decision, but it could act constructively and beyond the traditional limits woven around high prerogativeness. Acting as a sentinel on the qui vive and on the extensive and purposive object of Article 226, we arrive at the following summary of conclusions and issue the following directions:
Summary of conclusions:
(1) It is held that W.P.Nos.11734/2008, 12612/2008 and 14097/2008 filed as public interest litigations (PIL) are maintainable. It is also held that the said public interest litigations required consideration on merits and have been considered on merits.
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(2) Those writ petitions which have not been filed in public interest have also been considered on merits and while considering the prayers sought for by the petitioners therein, we have moulded the reliefs accordingly.
(3) It is held that the State Government did not have the power or competence to exclude or delete Gokarna Temple from the List of Notified Institutions vide Government Notification dated 30/04/2003 (01/05/2003). It is also held that the deletion of Gokarna Temple could not have been by way of a Government Order (dated 12/08/2008 impugned in these writ petitions), but by way of a Notification. It is further held that the State Government could not have deleted Gokarna Temple from the List of Notified Institutions by placing reliance on Section 21 of the General Clauses Act. Moreover, the State Government could not have exercised its parens patriae powers so as to issue the impugned Government Order dated 12/08/2008.
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(4) In view of the observations made by the Division Bench of this Court in W.A.No.5131/2008, it is held that the question whether Gokarna Temple is attached to the respondent - Mutt, is a mixed question of fact and law. The documents produced by the respondent - Mutt in these writ petitions cannot be considered as conclusive proof of the said fact. The disputed question of fact cannot be decided in these writ petitions by exercising jurisdiction under Article 226 of the Constitution of India, but would have to be tried and decided by a competent Civil Court. Hence, the respondent -
State could not have issued the impugned
Government Order dated 12/08/2008 on the
assumption that the said Temple was attached to the Mutt. Hence, the impugned Government Order dated 12/08/2008 is illegal and not valid in the eye of law.
(5) In the absence of any power to delete the Temple from the List of Notified Institutions, the deletion of the same and handing over of the Temple to the
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respondent - Mutt is an instance of improper exercise of power and is arbitrary and hit by Article 14 of the Constitution of India.
The action of the State Government is tainted as it is not for a bona fide purpose, but to confer a benefit on respondent - Mutt.
Government Order dated 12/08/2008 is hence quashed.
(6) In view of the above, the following directions are issued:
(a) On quashing of Government Order dated 12/08/2008, Gokarna Temple shall continue to be included in the List of Notified Institutions as per Section 23 of the Act.
(b) We observe that the State Government had not taken any step to constitute a Committee of Management for the Temple under the provisions of the Act. In the absence of constitution of Committee of
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Management and the provisions of BPT Act being struck down by this Court in the case of Sri Sringeri Nelamau Samsthanam, Heror, Siddapur Taluk, Uttara Kannada, by virtue of the Notification issued by the State Government, the Charitable and Religious Trusts Act, 1920 may apply. But no action has been taken as yet under the said enactment. The validity of the Act is also pending consideration before the Hon'ble Supreme Court. Having regard to the controversy revolving around Gokarna Temple and the questions raised in these writ petitions and bearing in mind its historical importance and glory, we think that following arrangement ought to be made forthwith:
186. We hereby constitute a Committee to be known as "Overseeing Committee" under the Chairmanship of the Deputy Commissioner, Uttara
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Kannada District, and having the following persons as its members namely,
(i)Deputy Commissioner, Uttara Kannada District Chairman;
(ii)Superintendent of Police, Uttara Kannada District
- Member;
iii)Assistant Commissioner, Kumta Sub-Division, Kumta - Member;
(iv)Two eminent persons/scholars, capable of discharging their functions as members of the Committee, to be nominated by the State Government - Members;
(v)Two Upadivantas of Gokarna Temple to be
nominated by the Deputy Commissioner in
consultation with the State Government -
Members.
The Overseeing Committee shall ensure that the traditions of the Temple are maintained, amenities and facilities are provided to the devotees and the Upadivantas/Archaks are accredited.
Hon'ble Shri. Justice B.N. Srikrishna, Former Judge, Supreme Court of India is requested to be the advisor of the said Committee.
We request him to accept the assignment.
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187. In the result, we pass the following order:
(i) W.P.No.30609/2008 is allowed.
In view of disposal of the said writ petition,
I.A.No.1/2015 seeking early hearing and I.A.No.2/2008 for interim relief stand disposed off.
(ii) W.P.No.60096/2010 is allowed in part. As Misc.W. 60678/2010 for stay is not pressed by the counsel for petitioners, the same is dismissed as not pressed.
(iii) The public interest litigations namely, W.P.Nos.11734/2008 and 14097/2008 are allowed.
Misc.W.No.9772/2010 is allowed.
Misc.W.Nos.295/2011 and 8508/2011 are disposed off.
(iv) Another public interest litigation namely, W.P.No.12612/2018 is allowed in part.
(v) W.P.No.31026/2008 is allowed in part. In view of disposal of the said writ petition, Misc.W.Nos.61354/2009 and 61415/2009 are disposed off.
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(vi) Learned senior counsel appearing for appellants in W.A.No.6121/2010 has submitted that the said writ appeal would not survive for consideration on account of the impugned order dated 12/08/2008.
The submission of learned senior counsel is placed on record. W.A.No.6121/2010 is dismissed as not pressed.
(vii) Learned counsel for the appellants in W.A.Nos.1477/2008 and 1286-1310/2011 has filed a memo stating that the appellants do not press these appeals. The said appeals are filed against the order of the learned single Judge, dated 05/09/2008, passed in W.P.No.11656/2008, in which impugned Government Order dated 12/08/2008 was assailed. The said writ petition was disposed off by a learned single Judge at Bangalore, reserving liberty to the petitioners therein to redress their grievances before the Circuit Bench at Dharwad, if they are so advised or need arises.
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In view of the memo filed by learned counsel for the appellants, W.A.Nos.1477/2008 and 1286-1310/2011 are dismissed as not pressed.
(viii) CCC No.2020/2009 is delinked and shall be heard separately.
Parties to bear their respective costs.
Registry of this Court to forward a copy of this order to Hon'ble Shri. Justice B.N. Srikrishna, Former Judge, Supreme Court of India.
Sd/-
JUDGE Sd/-
JUDGE s/msu/mv/mvs/ST
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BVNJ & AKJ: WRIT PETITION No.30609/2008 10/08/2018 & connected matters
After pronouncement of order, learned senior counsel appearing for respondents sought stay of the order passed by this Court.
The same has, however, been opposed by learned senior counsel as well as other counsel appearing for the petitioners.
Although we have directed that the arrangement by way of constitution of a Committee known as "Overseeing Committee" be made forthwith, having regard to the submissions made by learned senior counsel for the respondents as well as learned senior counsel for the petitioners, we direct that the arrangement with regard to constitution of Overseeing Committee would take effect from 10th September, 2018.
Further, learned senior counsel appearing for the respondents has very fairly submitted that respondents may be put to terms during the said period.
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In the circumstances, we direct the Deputy Commissioner, Uttara Kannada District, to make an inventory of all the movable and immovable assets of the Temple as well as the bank accounts and submit a report to this Court within a period of two weeks from today.
The original records shall be returned to learned Addl. Government Advocate on obtaining an acknowledgement from him.
Sd/-
JUDGE Sd/-
JUDGE S*