1 ® IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 2ND DAY OF JANUARY 2013 BEFORE THE HON'BLE MR. JUSTICE DILIP B BHOSALE WRIT PETITION NOs. 17370 & 17391 OF 2012 (GM-R/C) IN W.P. NO. 17370/2012 BETWEEN SRI. VIDYA MANOHARA TEERTHA SWAMIGALU PEETHADIPATHY, VYASARAJA MUTT (SOSALE) T'NARASIPURA MYSORE DISTRICT ...PETITIONER (BY SRI. JAYAKUMAR S. PATIL, SR. ADV., FOR SRI. B.K. NAGARAJA & MURTHY D.L. ADV., ) AND 1. THE STATE OF KARNATAKA REPRESENTED BY ITS CHIEF SECRETARY VIDHANA SOUDHA DR. AMBEDKAR VEEDHI BANGALORE - 560 001. 2. THE ADDITIONAL CHIEF SECRETARY GOVERNMENT OF KARNATAKA, VIDHANASOUDHA, BANGALORE 3. UNDER SECRETARY TO GOVERNMENT OF KARNATAKA REVENUE DEPARTMENT (MUZARAI) M. S. BUILDING, DR. AMBEDKAR VEEDHI BANGALORE 4. THE ENDOWMENT COMMISSIONER UNDER KARNATAKA RELIGIOUS AND CHARITABLE ENDOWMENTS ACT TIPPU SULTAN PALACE ROAD, BANGALORE 2 5. VYASARAJA SEVA SAMITHI ® NO. 23, 1ST CROSS, RAMARAO LAYOUT KATHRIGUPPE, BSK III STAGE BANGALORE - 560 085 REPRESENTED BY ITS PRESIDENT D. RAMACHANDRACHAR AND SECRETARY N. VENKATESH RAO 6. THE ADMINISTRATOR VYASARAJA MUTT (SOSALE) T NARASIPURA MYSORE DISTRICT 7. SRI. JAYARAJ IAS (IMPLEADED AS PER COURT ORDER) S/O. SRI. K. PADMANABHA RAO AGED ABOUT 62 YEARS R/A. R.T. NAGAR BANGALORE ....RESPONDENTS (BY SRI. S. VIJAYA SHANKAR, ADV., GENERAL A/W SRI. RAVINDRANATH P.V. AGA FOR R1-R4, SRI. UDAYA HOLLA, SR. ADV., FOR SRI. RAJESWARA P.N. ADV., FOR R5, SRI. ASHOK HARANAHALLI, SR. ADV., FOR SRI. P.S. DINESH KUMAR, ADV., FOR R6) THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER OF ANNX-K DT: 26.05.2012 OF THE R1 TO 4 APPOINTING THE R6 AS THE ADMINISTRATOR OF THE PETITIONER MUTT. 3 IN W.P. 17391/2012 BETWEEN VYASARAJA MUTT (SOSALE) T. NARASIPURA TALUK MYSORE DISTRICT HAVING A BRANCH AT NO.3, OLD NO.1 BENNE GOVINDAPPA ROAD BASAVANAGUDI BANGALORE - 560 004 REPRESENTED BY ITS ADMINISTRATOR SRI. SOSALE N. PRAKASH ..PETITIONER (BY SRI. JAYAKUMAR S. PATIL, SR. ADVOCATE FOR SRI. SHYAM KOUNDINYA A.S. AND SRI. S.R. KRISHNAKUMAR, ADV., ) AND 1. STATE GOVERNMENT OF KARNATAKA DEPARTMENT OF RELIGIOUS INSTITUTIONS AND ENDOWMENT M.S. BUILDING BANGALORE - 560001 ALSO AT CHAMRAJPET, BANGALORE REPRESENTED BY ITS CHIEF SECRETARY 2. THE ADMINISTRATOR SOSALE VYASARAJA MUTT APPOINTED BY STATE GOVERNMENT VIDE ORDER DATED 26.05.2012 ..RESPONDENTS (BY SRI. S. VIJAYA SHANKAR, ADV., GENERAL A/W SRI. RAVINDRANATH P.V. AGA FOR R1, SRI. ASHOK HARANAHALLI, SR. ADV., FOR SRI. P.S. DINESH KUMAR, ADV. FOR R2, SRI. SRINIVASA RAGHAVAN, ADV., FOR M/S. INDUS LAW FOR IMPLEADING APPLICANT) 4 THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DTD: 26.5.2012 CONTAINED IN ANNEX-C AND D PASSED BY R1 BY ISSUING A WRIT OF CERTIORARI OR SUCH OTHER WRIT ORDER OR DIRECTION AS THE CASE MAY BE. THESE WRIT PETITIONS COMING ON FOR PRONOUNCEMENT, THIS DAY THE COURT MADE THE FOLLOWING: JUDGMENT (DILIP B. BHOSALE J.)
These two writ petitions are directed against the orders / notifications, both dated 26.5.2012, appointing an administrator for Sri. Sosale Vyasaraja Mutt (for short `the Mutt) and constituting a Committee to guide him. The petitioners are also seeking implementation of the endorsement dated 15.10.2004 issued by the Commissioner of the Hindu Religious Charitable Endowments Office, representing the Government, stating that the provisions of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 (for short `the new Act') would not apply to the Mutt. The first writ petition (W.P. No.17370/2012) is filed by 5 Mathadhipathi of the Mutt, whereas the second writ petition (W.P. No.17391/2012) is filed by Mr. Sosale N. Prakash, duly appointed by the Mathadhipathi, as an Administrator / Manager of the properties of the Mutt.
2. The reliefs sought in both the petitions are similar, and in view thereof without entering into an issue/question whether the second petition filed by the Manager/Administrator is maintainable, or whether he has locus to file the petition, they are being disposed of by this common judgment.
3. It would be necessary to give brief history of the Mutt and the relevant facts leading to these petitions, which may be necessary for dealing with the questions raised in the petitions.
3.1 The Mutt is a religious institution which propagates the Dwaitha philosophy founded by St.Sri. Madhawacharya (1238 - 1317). The Mutt has been in existence for several centuries having large number of followers in the States of Karnataka, Andhra Pradesh and Tamil Nadu besides other parts of the country. The history 6 of the Mutt replete with scholarly expositions of Dwaitha philosophy for the enlightenment of shishyas in addition to promoting Madhwas and others subscribing to the Dwaitha philosophy. The Mutt is named after St. Sri. Vyasa (1460
- 1639) who was the then spiritual guru of Vijayanagar Empire.
3.2 The Mutt has, over the years acquired several moveable and immovable properties not only in the States mentioned above but all over the country.
3.3 The petitioner - Sri. Vidya Manohara Theertha Swamiji (for short "the Mathadhipathi") was nominated / appointed as Mathadhipathi of the Mutt by his predecessor Sri. Vidya Vachaspathy Theertharu in 2004. Since then, he is managing the affairs of the Mutt. Insofar as the petitioner Sri. Sosale N. Prakash (for short "the Manager") is concerned, it appears that he has been appointed as an administrator by the mathadhipathi to administer /manage the properties of the Mutt.
3.4 In 1991 a writ petition was filed in this Court by one B.R.G.K. Achar bearing W.P. NO.7264/1991 against the State of Karnataka. The grievance of Achar was 7 related to the failure on the part of the respondents in disposing of the application made by him seeking action under section 26 of the Mysore Religious and Charitable Institutions Act, 1927 (for short `the old Act'). This Court, while disposing of the said writ petition by order dated 19th July, 1996, having regard to the provisions contained in section 26 of the old Act, issued a writ of mandamus, directing the respondents to consider and dispose of by a proper order the application made by Achar seeking initiation of action under the said provision. Mr. Achar in the writ petition as well as in the application under section 26 was seeking an enquiry into disposal / alienation of the properties of Mutt by the matadipati. In pursuance of the order passed by this Court on 19.7.1996 the State Government vide order dated 24.8.1998 constituted an enquiry Committee, in terms of section 26 of the old Act, consisting of four members, headed by the Deputy Commissioner, Mysore District to enquire into the allegations made by Achar. The Committee however, expressed its inability to conduct an enquiry as the Mutt properties were located in neighbouring States, viz. Andhra 8 Pradesh and Tamil Nadu. The Government therefore, constituted another Committee consisting of six members presided over by the Commissioner of Religious and Charitable Endowments.
3.5 It appears, when the new Committee was Constituted, Mr. Achar was no more. It has also come on record that after the first Committee was constituted vide order dated 24.8.1998 a further order was issued on 17.1.2001 appointing the Endowment Commissioner as Enquiring Officer. It is not clear from the record nor was it cleared by learned senior counsel for the petitioner, who invited my attention to the appointment of an Enquiry Officer, as to under which provision of law, the Endowment Commissioner alone was made Enquiry Officer. The petitioners contend that the Commissioner submitted a report on 4.1.2002 and on the basis thereof on 28.3.2002 the Government passed an order, closing the case of the complainant by imposing two conditions - that in case the properties of the Mutt are to be sold, a prior permission of the Government should be taken and that in case if any transaction pertaining to the properties of Mutt are 9 mismanaged, the General Power of Attorney Holders would be held responsible. Neither the order dated 28.3.2002 nor the report dated 4.1.2002 is a part of the record.
3.6 After the death of Achar, some of the devotees came together and constituted a Samithi called `Vyasaraja Seva Samithi' which is respondent No.5 in the first petition (for short `the Samithi). The Samithi submitted a representation to the Enquiry Committee that was constituted earlier, requesting to implead them in the enquiry proceedings. The grievance of the Committee was against the matadhipathi who, according to them, started mis-appropriating the contributions/donations made by devotees and properties of the Mutt.
3.7 It appears that some of the members of the new Committee, consisting of six members, presided over by the Commissioner of Religious and Charitable Endowments did not co-operate and hence the Committee could not make any progress. As a result thereof, the State Government re-constituted the Committee on 13.10.2006 of the five members headed by the Endowment Commissioner. This five members Committee, 10 indubitably followed the due procedure, viz. issuance of show cause notice inviting reply of the Mutt; allowing them to place evidence on record in support of their claim; granting an opportunity of being heard, after framing 11 charges / allegations against the mathadhipathi. The charges are mainly in respect of mal-administration and misappropriation of Mutt properties and squandering of resources. The charges / allegations formulated by the Enquiry Committee, as reflected in their report, dated 3.9.2011 read thus:
1. After handing over possession of the Old Choultry, belonging to the Mutt, the TTD authorities sanctioned a site for construction of the New Choultry and the Peethadhipathi of the Mutt collected huge funds from the devotees and constructed a building at a cost of Rs.1.85 crores and leased out the 1st and 2nd floors of the building to Shri N.C. Hari by collecting an advance of Rs.1.27 crores and thereby the poor devotees of the Mutt are deprived of the benefit of this Choultry.
2. Though there is an injunction by the Civil Court, the house situated in No. 4/220 Survey No.2043 at Govindarajapattanam of Tirupathi has been leased out for Rs.15.00 lakhs.
3. Though there is a written direction by the former peethadhipathi that no property be alienated, the house situated in G.K. Temple street, Bangalore measuring 15 x 30 sq. ft. has been mortgaged for a 11 period of 5 years for Rs.75,000/- on 15.12.2006 by entering into an agreement.
4. The GPA entered in August 2010 for the sale of land measuring 559.29 acres situated in Survey No.1 in Pattemvenlapalli of Chittur district of Andhrapradesh in favour of Sri. Papurajareddy has been cancelled and the new GPA has been executed in favour of Shri Balaji.
5. Violation of the Government directions and the violation of Civil Court injunction by donating 1 acre of land of the Mutt as found in the publication made in the Mysore Mithra news paper dated 1.09.2010.
6. Leasing of 3 properties in survey number 1520/3,520/2A door no.205, T.S. No.1050/1, 2-B1 and property No.60 situated in Annamandapam Road, Srirangam, Tamilnadu for a period fo 29 years for less rent than the market rate without obtaining permission under Section 34 of the Madras Hindu Religious and Charitable Endowments Act, 1957.
7. Sale of land measuring 79,000 sq. ft. in survey no.1208 /22/2 situated in Madurai in Tamilnadu in favour of K. Ramalingam and Sri. P. Pandy for Rs.79 lakhs.
8. The flat No.2 measuring 5,959 sq. ft. at Kolaigunta, Tirumala was earlier leased out for 30 years in favour of N.C. Hari and brothers. Subsequently, the same property was again leased out in favour of Sampathkumar Jain and Jaganlala for a period of 25 years for Rs. 2.60 crores and accepted an advance of Rs.35.00 lakhs hiding the earlier lease transaction. As the earlier lessee did not handover possession of the property, the 2nd advance received was returned with a penalty of Rs.35.00 lakhs to be 2nd lessee and the said cheque of Ras.70.00 lakhs came to be bounced resulting in prosecution of the 12 mathadhipathi and misappropriation of the fund of the Mutt.
9. A loan of Rs.25.00 lakhs is received by mortgaging the Vidya Payonidhi Mandir at Mysore in favour of B.M. Soumya w/o Manjunath and Smt. M.P.
Sandhya Rani and the said amount was credited to the personal account of the Mathadhipathi leading to misappropriation.
10. Though there is a direction by the Government in order No. Kum.E.49 Muabi 1999, dated 28.3.2002 that the prior permission of the Government should be obtained for the sale of the property of the Mutt, the Peethadhipathi has sold the property of the Mutt by violating the Government Order.
11. Misappropriation of loan amount of Rs.97,000/- from Agasthya Credit Co-operative Society, Mysore by pledging silver articles of the Mutt without crediting the loan amount to the Mutt account.
4. The Enquiry Committee held that all the allegations/charges, except the allegations / charges at serial nos.5 & 10, have been proved. In other words, the allegations at serial nos. 5 & 10 were not proved. Based on the report of the Enquiry Committee, consisting of 5 members constituted on 13.10.2006, and taking note of the allegations against the Mutt and / or the matadpathi including the contempt proceedings pending in the Supreme Court, the State Government on 26.5.2012, in exercise of the powers under 13 sections 26 & 27 of the Act and so also Article 162 r/w Art. 31-A of the Constitution of India passed the following order:
"After careful examination of records and in view of the circumstances explained in the preceding paras, the State Government in public interest hereby order the take over of the Management and properties with all the assets, both moveable and immovable, records, accounts, funds of Sri Sosale Vyasaraja Mutt, and all its attendant brances and properties located in various parts of the country with immediate effect for an initial period of two years by an Administrator appointed by the Government for the purpose.2. The powers and functions of the Administrator are in the Annexure-I to this order.3. The terms and conditions of the Administrator are in the Annexure-II to this order."
5. There is no dispute that so far as the religious functions of the Mutt including the daily pooja and rituals to the deities are concerned, they were allowed to be conducted by the matadhipathi. Thus, for the management of the secular functions of the Mutt, namely management and administration of the property, the administrator came to be appointed for a period of two years. The Government also issued two annexures to the 14 order dated 26.5.2012 making the powers and functions of the Administrator and the terms and conditions of appointment of the Administrator clear. The Administrator, vide the first annexure was given power to get the accounts of Mutt audited by a qualified Chartered Accountant.
6. The Govt. on 26.5.2012 itself issued another notification (Annexure C) appointing Sri. K. Jairaj, IAS as an Administrator of the Mutt with immediate effect allowing him to take charge of the management and affairs of the Mutt and function as per the guidelines issued vide the order dated 26.5.2012 (Annexure E), impugned in the writ petition. The Government then constituted a Committee to guide the Administrator in the management of the affairs of the Mutt headed by Hon'ble Sri. Justice Sri. M.N. Venkatachalaiah - former Chief Justice of India. The other four members of the Committee are Justice S.R. Venkatesh Murthy, Prof.S.Jayasimha, Dr.R.V. Jayatheertha and Prof.D. Prahladachar. There is no dispute that all the five members of this committee are highly respectable 15 residents of the State of Karnataka. The petitioners, in the present petition, have challenged these two orders / notifications dated 26.5.2012 appointing the Administrator and constituting the Committee to guide the Administrator.
7. I have heard learned counsel for the parties at considerable length and with their assistance gone through the entire material placed before the court. The grounds of challenge, urged on behalf of the petitioner, are that the order / notification dated 26.5.2012 issued by the Government, appointing an administrator, is without authority of law / jurisdiction and that it has been issued in breach of the principle of natural justice. Thus, only two questions fall for my consideration, namely whether the Government has authority of law to issue impugned notification / order, and whether the principle of natural justice was followed / observed while issuing the same. I would like to consider the second question first.
7.1 Mr. Jayakumar S. Patil - learned senior counsel for the petitioner at the outset submitted that the 16 impugned order / notification dated 26.5.2012 is issued in gross violation of the principle of natural justice. He submitted that after submission of the report dated 29.8.2011 of the Enquiry Committee, a copy thereof had not been served on the matadhipathi / the Mutt and the Government while issuing the impugned order, did not issue any show cause notice as to why an Administrator should not be appointed for the Mutt. In short, it was submitted that no opportunity of being heard was afforded before passing the impugned order, which according to the petition affected the fundamental rights guaranteed under Article 26 r/w Article 300-A of the Constitution of India. It was further submitted that the impugned order / notification makes reference to several representations about the illegalities allegedly committed by the matadhipathi including sale of moveable / immoveable properties of the Mutt and misappropriation of its funds. Copies of the representations were not served on the Mutt / matadhipathi and as a result thereof, they could not offer any explanation about the allegations made therein. Lastly, it was submitted that the impugned action is in the 17 nature of deprivation of the unfettered proprietary right to hold and administer properties by a religious denomination guaranteed under Article 26 of the Constitution and hence deserves to be set aside. In support of his contentions, on the point of breach of principles of natural justice, Mr. Patil placed heavy reliance upon the Judgment of the Supreme Court in MANEKA GANDHI vs. UNION OF INDIA - AIR 1978 SC 597.
7.2 On the other hand, Mr.S. Vijaya Shankar - learned Advocate General made leading arguments on behalf of the respondents. Insofar as the alleged breach of the principle of natural justice is concerned, he submitted that report of the Enquiry Committee, which is the basis for passing the impugned order, was submitted after giving an opportunity of being heard to the Mutt / matadhipathi and therefore, it cannot be stated that the principle of natural justice was not observed. In support of his contentions, he placed reliance upon the judgments of the Supreme Court in KESAVA MILLS COMPANY vs. UNION OF INDIA - AIR 1973 SC 389; MANAGING DIRECTOR, ECIL vs. KARUNAKAR - AIR 1994 SC 1074; and 18 UNION OF INDIA vs. ALOK KUMAR - (2010) 5 SCC
349. 7.3 Mr. Udaya Holla - learned senior advocate appearing for respondent no. 5 - Samithi submitted that Section 27 of the old Act empowers the Government to act on the report of the Enquiry Committee and take over the management of the institution or pass such other order as may be deemed fit. The act of appointing the Administrator does not in any way impair the rights of the Mutt or its denomination. On the contrary, he submitted it seeks to protect and promote that right. The rules of natural justice, therefore, he submitted can be said to be applied when any action has civil consequences and when some right is sought to be taken away. The mandate of section 27 of the old Act does not contemplate personal hearing. In support of his contentions, he placed reliance upon the judgments of the Supreme Court in THE CHAIRMAN, BOARD OF MINING EXAMINATION AND CHIEF INSPECTOR OF MINES AND ANOTHER v.
RANJEE - AIR 1977 SC 965; OLGA TELLIS AND OTHERS v. BOMBAY MUNICIPAL CORPORATION AND 19 OTHERS - AIR 1986 SC 180; and H.C. SARIN v. UNION OF INDIA AN DOTHERS - AIR 1976 SC 1686.
7.4 Mr. Ashok Haranahalli - learned senior counsel appearing for the respondent - Administrator submitted that the petitioner was given show cause notice and in response thereto, he participated in the proceedings before the Enquiry Committee consisting of five members through his advocate and therefore, it cannot be stated that the principle of natural justice was not followed while passing the impugned order. He submitted that no notice is contemplated by section 27 of the old Act. In support of his contentions, he placed reliance upon the judgments of the Supreme Court in RAMJEE; OLGA TELLIS (supra) and H.C. SARIN v. UNION OF INDIA AND OTHERS - AIR 1976 SC 1686.
7.5 Mr. Srinivas Raghavan - learned counsel for the impleading applicant submitted that the devotees or other interested persons were not heard before appointment of an administrator and thereby the principle of natural justice has been breached and on this ground alone the impugned order deserves to be set aside. 20
8. I would like to make brief reference to the Judgments of the Supreme Court relied upon by learned counsel for the parties. The Supreme Court in MANEKA GANDHI (supra) while dealing with the principle of audi alteram partem - that no one shall be condemned unheard, observed that it is a part of the rule of natural justice. It was further observed that although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. In paragraph 59 of the judgment on which a heavy reliance was placed on behalf of the petitioner the Supreme Court observed that "if this be the test of applicability of the doctrine of natural justice, there can be no distinction between a quasi judicial function and administrative function for this purpose. The aim of both administrative enquiry as well as quasi judicial enquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively to prevent miscarriage of justice, it is difficult to see why it should be applicable to quasi judicial enquiry 21 and not to administrative enquiry. It must radically apply to both".
8.1 Further, the Supreme Court observed that whenever a complaint is made before a Court that some principle of natural justice had been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of the case.
8.2 The Supreme Court in B. KARUNAKAR (supra) after dealing with the principle of natural justice observed that non-furnishing of copy of the Enquiry report to the dismissed employee cannot ipso facto result in setting aside the dismissal order. The Court can set aside order of punishment only after it comes to the conclusion that furnishing of the report would have made a difference in the result of the case.
8.3 In ALOK KUMAR (supra), Supreme Court in paragraph 85 observed thus:"85. The doctrine of de facto prejudice has been applied both in English as well as in Indian law. To frustrate departmental enquiries on a hyper-technical approach has not found favour with the courts in the recent times. In S.L.Kapoor v. Jagmohan a three- Judge Bench of this Court while following the 22 principle in Ridge v. Baldwin stated that if upon admitted or indisputable facts only one conclusion was possible, then in such a case that principle of natural justice was in itself prejudice would not apply. Thus, every case would have to be examined on its own merits."(emphasis supplied) 8.4 In K.L. TRIPATHI vs. STATE BANK OF INDIA - (1984) 1 SCC 43 in paragraph 31 the Supreme Court observed thus:"Wade in his Administrative Law, Fifth Edition at pages 472-475 has observed that it is not possible to lay down rigid rules as to when the principles of natural justice are to apply : nor as to their scope and extent. Everything depends on the subject-matter, the application of principles of natural justice, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject-matter of the case. In the application of the concept of fair play there must be real flexibility. There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth."8.5 In H.C. SAREEN (supra) the Supreme Court observed that "the rules of natural justice must not be stretched too far. Only too often, the people who have 23 done wrong seek to invoke the rules of natural justice so as to avoid the consequences. The Supreme Court in that case after having appreciated facts and circumstances of the case, came to the conclusion that no principle of natural justice was violated in not making available to the appellant the services of other revenue officer stationed in India for the conduct of his defence.
8.6 In RAMJEE (supra) Supreme court observed as under:"Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt - that is the conscience of the matter.
(emphasis supplied) 8.7 In OLGA TELIS (supra) while dealing with the grievance regarding breach of principles of natural justice, the Supreme Court gave full opportunity in the Court and 24 in paragraph 51 of the judgment observed that "the opportunity which was denied by the Commissioner was granted by us in an ample measure, both sides having made their contentions elaborately on facts as well as on law. Having considered those contentions, we are of the opinion that the Commissioner was justified in directing the removal of the encroachments committed by the petitioners on pavements, footpaths or accessory roads".
- AIR 1975 SC 596 the Supreme Court observed that "it is only where there is nothing in the statute to actually prohibit the giving of opportunity to be heard, but, on the other hand, the nature of statutory duty must itself necessarily employ application to hear before the audi alteram partem rule could be employed.
- (1980) 4 SCC 379 the Supreme Court observed that "we do not suggest that the opportunity need be a "double opportunity" i.e. one opportunity on the factual allegation and another on the proposed penalty. Both may be rolled into one".25
9. The principle that no one shall be condemned unheard is a part of the rule of natural justice. If the rule is to be applied, there can be no distinction between a judicial / quasi judicial function and administrative function. The aim is to arrive at a just decision. The Courts can set aside orders passed without issuing show cause notice, only if it comes to the conclusion that issuance of the show cause notice would have made a difference in the result of the case before it.
9.1 The person / litigant should not be allowed to invoke the rule of natural justice so as to avoid the consequences of the order. If the Court after having appreciated all facts and circumstances of the case, comes to the conclusion that no prejudice whatsoever has been caused by not issuing show cause notice or issuance thereof would not have made a difference in the result, then in such a case the rule of natural justice would not apply. Thus, every case would have to be examined on its own merits. The Courts can neither be finical nor fanatical, but should be flexible yet firm while considering the rule of natural justice.26
10. Having regard to the guidelines / principles laid down by the Supreme Court, to be borne in mind while applying the rule of natural justice, I would now like to consider whether issuance of a show cause notice while passing the order under section 27 of the old Act was necessary for a just decision on facts of the case. Thus, what needs to be considered is whether there was a breach of the principle of natural justice in the present case.
11. The orders / notifications, impugned in the present writ petitions are issued by the Government in exercise of the powers under sections 26 & 27 of the old Act and so also Article 31-A r/w 162 of the Constitution. Sections 26 & 27 of the old Act deal with the enquiry by a Committee into allegations of mismanagement and report of the Committee and order of Government thereon. It would be relevant to re-produce these two sections to appreciate whether the Government while exercising the powers under these provisions, committed any breach of the principle of natural justice.27
Section 26 and 27 of the Old Act reads thus:"26. When on complaint made or information furnished in writing by disciples or other persons interested in any Matha or other similar institution, the Government has reason to believe that the Mathadipathi or the head of such other institution has been grossly mismanaging the property of the institution or has alienated or is attempting to alienate the whole or any part of such property for improper purposes, the Government may order an enquiry by a Committee of not less than three persons, one at least of whom shall, whenever possible, be a disciple of or a person interested in, the Matha or other institution as the case may be, provided he is not a whole- time servant of the Government.27. On the completion of the said enquiry the Committee shall submit a report of the result thereof to the Government; and the Government may thereupon take over the management of the institution or pass such orders as may be deemed fit concerning the management of the affairs and property of the institution."
12. Section 26 provides the circumstances in which the Government can order an enquiry by a Committee of not less than three persons, whereas Section 27 provides that on completion of the enquiry and on the basis of report thereof, the Government can take over the management of the institution or pass such orders as may 28 be deemed fit concerning the management of the affairs and property of the institution. Though none of these provisions, expressly provide for an opportunity of being heard, insofar as enquiry under Section 26 is concerned, it contemplates an opportunity of being heard in the course of enquiry. Section 27 simply empowers the Government to take over the management of the institution or pass such orders as may be deemed fit concerning the management of the affairs and property of the institution on the basis of a report of the committee constituted under section 26.
13. From bare perusal of sections 26 & 27 it is clear that though they are technically separate sections, they both are interlinked. No independent action, under section 27, of taking over the management of the institution, can be initiated without there being an enquiry contemplated by section 26. In other words, unless there is an enquiry under section 26 by a committee into the allegation of mismanagement, there cannot be any order of taking over the management of the institution under section 27. Thus, 29 the provisions of sections 26 & 27 do not provide for or suggest an opportunity needs to be a double opportunity, i.e at the stage of an enquiry contemplated by section 26 of the Act and again while taking over the management of the institution as contemplated by section 27 of the Act. Looking at these provisions from any angle, in my opinion, fresh opportunity for taking over the management as contemplated by section 27 is not necessary and the principles of natural justice stand satisfied / fulfilled if the opportunity was given during the enquiry contemplated by section 26 of the Act.
14. Admittedly, in the present case, the Enquiry Committee, constituted by the Government and which conducted the enquiry, had issued show cause notice to the petitioner; the petitioner replied to the show cause notice and was allowed to produce evidence in support of his case; and after hearing the Advocate on their behalf submitted its report to the Government. As a matter of fact, the petitioner did not make any grievance of whatsoever nature of any breach of the rule of natural 30 justice being committed by the Enquiry Committee in the course of enquiry contemplated under Section 26 of the old Act. The grievance of the breach of natural justice made before this Court is only in respect of the order / notification that was passed/issued under Section 27 of the Act. From perusal of the impugned order it is clear that it is based on the report of the Enquiry Committee. From plain reading of Section 27 clearly shows that the Government is empowered to take over the management of the institution on the basis of the enquiry report submitted by the Enquiry Committee constituted under Section 26 of the old Act. The impugned order shows that the action has been taken on the basis of the report of the committee and not any other material, though a passing reference was made to some representations.
15. From the language employed in section 27 of the old Act, it cannot be stated that even for taking over the management of the institution upon a report of the Enquiry Committee a show cause notice or an opportunity of hearing is necessary. It needs to be noticed that under 31 different situations and conditions, the requirement of compliance of principle of natural justice vary. A party to any proceeding cannot insist that under all circumstances, personal hearing has to be afforded. Where the principle of natural justice requires an opportunity to be heard before an adverse order is passed on any appeal or application, and if such an opportunity is given, it does not in all circumstances mean that a show cause notice is necessary even before passing final order. In the present case, in my opinion, the requirement of observance of principle of natural justice has been complied with by affording an opportunity to the petitioner to present their case before the Enquiry Committee. There is no dispute that the impugned order of appointing an Administrator is based on the report of the Enquiry Committee though in the order a passing reference is made to some other material also. The report of the enquiry Committee shows that out of eleven charges, nine charges have been proved. Therefore, it cannot be stated that while passing the order under Section 27 of the Act, the principle of audi alteram partem was not observed. In my opinion, Section 32 27, under which the order has been passed, does not contemplate a show cause notice and / or an opportunity of being heard. Thus, I hold that the impugned order/notification dated 26.5.12 was issued after following the principle of natural justice.
16. Next I would like to consider the first question whether the Government had authority of law to issue the impugned order / notification. While dealing with this question, I would also have to consider the question whether the order appointing Enquiry Committee under the old Act, can be said to be saved under section 78 (2) of the new Act.
17. Mr. Patil - learned senior counsel for the petitioners submitted that on an appointment of the Endowment Commissioner as an enquiry Officer vide order dated 17.1.2001 and his report dated 4.1.2002 by which he recommended to close the case and the order dated 28.2.2002, passed by the Government to that effect it was open to reopen the case in 2006, by appointing five member committee under the provisions of the old Act 33 after its repeal. In short he submitted that constitution of the Committee in October, 2006, after the report of the Endowment Commissioner dated 4.1.2002, exonerating the matadhipathi of the allegations leveled against him, was illegal and without any authority of law after repeal of the old Act w.e.f. 1.5.2003. Admittedly, the report of the Committee on the basis of which the impugned action has been taken was re-constituted on 13.10.2006, which, according to Mr. Patil, was much after commencement of the new Act and hence the constitution of new committee and proceedings before it were without jurisdiction /authority of law. He submitted that application of section 6 of the Karnataka General Clauses Act, 1899 (Karnataka Act -III of 1899) (for short `the KGC Act') to the instant case is misconceived since no different intention is reflected so as not to affect any right, privilege / obligation or liability, acquired, accrued or incurred under any enactment so repealed and affect any investigation, legal proceedings or remedy in respect of such right, privilege, obligation, liability, penalty, forfeiture or punishment. The powers therefore, he submitted, exercised under section 34 27 of the repealed Act were without any authority of law / jurisdiction as the new Act specifically excluded its application to the mutts. He then submitted that under Article 26 and Article 300-A of the Constitution, the mutts have been given the fundamental right to own, hold and administer properties and that they have been specifically excluded from the application of the provisions of any Act or any regulation or supervision by the Government. He submitted that matadhipathi's right to be the religious and secular head of the Mutt and right to hold and administer the properties of the Mutt are blended with each other, and therefore an appointment of Administrator for the secular affairs of the Mutt relating to administration of the properties of the Mutt by the impugned order is unconstitutional and illegal. Next he submitted, the powers exercised by the State in passing the impugned order under Article 162 of the Constitution is admittedly not traceable to any statute or not passed on any authority. In the absence of any law, the impugned notification cannot be treated as having force of law for the State to exercise powers under Article 162. In support of 35 his submissions, he placed reliance upon the Judgments of the Supreme Court in M.S. SHIVANAND vs. KSRTC -AIR 1980 SC 77; COMMISSIONER, HINDU RELIGIOUS ENDOWMENTS MADRAS vs. SRI
LAKSHMINDRA THIRTHA SWAMIAR - AIR 1954 SC 282; BISHAMBHAR DAYAL CHANDRAMOHAN AND OTHERS vs STATE OF UP & OTHERS - (1982) 1 SCC 39; A.K. GOPALAN vs STATE OF MADRAS - AIR 1950 SC 27; INDIAN BANK'S ASSOCIATION vs DEVAKALA CONSULTANCY - AIR 2004 SC 2615; COMMISSIONER OF INCOME TAX vs. MACDOWELL & CO. LTD. -
(2009) 10 SCC 755.
17.1 On the other hand, learned Advocate General submitted that Article 26 of the Constitution protects the freedom of every religious denomination to manage its religious affairs. He submitted the matadhipathi manages the properties and assets of a religious institution on behalf of the members of denomination as their representative. As the properties that he manages are not owned by him, the question of deprivation of property does not arise. He submitted, that temporary suspension of the 36 right to manage, which is intended to preserve, protect, facilitate and promote the right of religious denomination by corrective measures cannot be taken exception to. In support of this submission he also placed reliance upon the Judgment of the Supreme Court in L.T. SWAMIYAR (supra). Then he submitted that the old Act would apply to the facts of the present case in view of the fact that the action was initiated much before it was repealed by the new Act. It was submitted that section 26 of the old Act provides for an enquiry by a committee into the allegations of management and section 27 empowers the Government to take over the management of the institution. The enquiry under section 26 of the old Act, in the present case, he submitted, was commenced pursuant to the directions issued by this Court vide order dated 19.7.1996 in W.P. No.7264/1991. Insofar as the report of the Endowment Commissioner dated 4.1.2002 is concerned, he submitted that had nothing to do with the enquiry under section 26 of the old Act and it cannot be stated that by the said report, the enquiry / case was closed. There is no provision in the old Act which contemplates a single 37 member enquiry. The report dated 4.1.2002, he submitted, has nothing to do with the enquiry that was initiated in pursuance of the order of this court dated 19.07.1996. In short, it was submitted that the Enquiry Committee was re-constituted for the reasons and therefore, its re-constitution cannot be treated as a new committee and / or initiation of fresh action in 2006 under the provisions of the old Act. He then submitted that section 78 of the new Act which is the repealing and saving provision, makes section 6 of the KGC Act applicable. Under these provisions the proceedings which commenced under the old Act prior to coming into force of the new Act are saved, especially because a different intention does not appear from the new Act. Lastly, he submitted that the other source is the executive power of the State under Article 162 read with Article 31A of the Constitution. The impugned order / notification issued in exercise of the executive power under Article 162 of the Constitution, is law as contemplated under Article 13 of the Constitution. The reference to Article 31A(I) (b) of the Constitution in the impugned order, therefore, he submitted, is 38 unexceptionable. In support of his contentions he placed reliance upon the Judgments of the Supreme Court to which I would make reference in the latter part of the Judgment.
17.2 Mr. Udaya Holla - learned senior counsel appearing for the Samithi submitted that the provisions of section 6 of the KGC Act save all actions taken prior to the repeal of the old Act. He submitted that a plain reading of repealing section 6 and section 78 of the new Act makes it clear that section 6 of the KGC Act is made applicable. Therefore, the proceedings initiated under the old Act are saved and shall continue. He submitted that even if it is assumed that there are no statutory provisions which the Government can invoke to appoint an administrator to assist in the restoration of proper administration of the Mutt, the State has power under Article 162 of the Constitution to make executive order when the field is not covered by any law. He then submitted that the right under Article 26 (c) & (d) is that of the religious denomination and is not the personal right of matadhipathi, except as a part of the religious 39 denomination, and hence except the religious functions of the Mutt, its properties can be regulated by the State. In the present case, he submitted that the Government has not taken over the properties of the Mutt, or the administration permanently. The order appointing an Administrator has been passed merely to protect the properties of the Mutt. I would like make reference to the judgments of the Supreme Court upon which he placed reliance in the later part of this judgment.
18. At the out set I would like to consider the question whether the Government could have invoked the provisions contained in sections 26 & 27 of the old Act, which stood repealed w.e.f. 1.5.2003, appointing an Administrator to administer moveable and immoveable properties of the Mutt. In other words, whether the order appointing the Enquiry Committee under section 26 of the old Act and taking over the management of the Mutt on the basis of the report of the said Committee under section 27 thereof can be said to be saved under section 78 of the new Act.40
19. From bare perusal of the provisions contained in sections 26 & 27 of the old Act, before it was repealed, it is clear that the Government had power to appoint a committee to enquire into allegations of mismanagement / misappropriation/alienation of the properties of the institution and to take over management of the Mutt or to pass such orders as may be deemed fit concerning the management of the affairs and property of the institution.
20. The new Act though received the assent of the President on 25th of October, 2001 and was published in the Karnataka Gazette, Extraordinary, on 21st of November, 2001, it was brought into force w.e.f. 1.5.2003 vide notification No.RD/172/NUSEVI/2001 dated 30.4.2003. The new Act was amended by Karnataka Hindu Religious and Charitable Endowments (Amendment Act), 2001, (Act No.27/2011) (for short the "first Amendment Act") and it was published in the Karnataka Gazette, Extraordinary, on the 4th day of May 2011. The new Act was once again amended by The Karnataka Hindu Religious and Charitable Endowments (second 41 Amendment) Act, 2011 (Act No.12 of 2012) (for short the "second Amendment Act"). This was published in the Karntaka Gazette, Extraordinary on 5th of March, 2012.
21. Sub-section (4) of section 1, as amended by the Second Amendment Act, of the new Act reads thus:1 (4) "It shall apply to, all religious institutions or charitable endowments notified under section 23. Section 53 and Chapter VIII shall apply to all religious institutions or charitable endowments other than those notified under section 23:Provided that it shall not apply to a math or temple attached to or managed by math."
Sub-section (4) explains a Mutt which 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 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. 42
22. Clause 16 of section 2 before the First Amendment Act defined the word "Hindu". By the First Amendment Act, the said clause was substituted by the following clause no.16 defining "Hindu Religious Denomination". The substituted clause no. 16 reads thus:16. "Hindu Religious Denomination" means a collection of Hindu individuals or devotees classed together under the same name, a Hindu religious section or sub-section or body or a section thereof or the spiritual fraternity represented by it having a common faith, rituals, observances, ceremonies and mode of worship which is designated by a distinctive name."
23. Though the new Act does not apply to a Mutt or temple attached to or managed by the Mutt, by the First Amendment Act, Clause (19-A) was inserted defining "Math". Clause No.(19-A), reads thus:19-A "Math" 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 Math belongs and in imparting religious instruction and training and rendering spiritual service 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 43 which are pertinent to the institution including religious institutions attached either religiously or administratively to the Maths."
A conjoint reading of sub-section (4) of section 1 of the new Act and the definitions of "Hindu religious denomination" [2 (16)] and "Mutt", [2 (19A)] it is clear that the legislature excluded Mutts from application of the provisions contained in the new Act.
24. Section 78 of the new Act speaks about repeal and savings. Sub-Section (2) of Section 78 repeals several enactments including the old Act. The proviso to sub-section (2) of section 78 however, provides that the KGC Act, shall be applicable in respect of the repeal of the said enactment and sections 8 & 24 of the said Act shall be applicable as if the said enactments are repealed and re- enacted by this Act. In view of the provisions contained in section 78, it was submitted that the action which was initiated by the State Government much before the new Act came into force was saved and the Government was therefore, justified in proceeding with the action that was initiated earlier even after 5.1.2003, and passing the 44 impugned orders / notifications invoking the provisions contained in sections 26 & 27 of the old Act. On the other hand, it was contended that the application of section 6 of the KGC Act to the instant case was misconceived and is not tenable.
25. The provisions contained in section 6 of the KGC Act and the provisions contained in section 6 of the General Clauses Act 1897, (for short "the GC Act") are pari materia. KGC Act is a State legislation. The old and the new Acts, therefore, need to be examined in the light of Section 6 of the KGC Act and Section 78 of the new Act.
26. It is well settled that a distinction exists between a repeal simplicitor and a repeal by an Act which is substituted by another Act. Whenever there is a repeal of an enactment, the consequences laid down in section 6 of the KGC Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal, there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject, one would undoubtedly 45 have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. (see STATE OF PUNJAB vs. MOHAR SINGH - AIR 1955 SC 84). The line of enquiry therefore, would be, not whether the new Act expressly keeps alive old rights or liabilities but whether it manifests an intention to destroy them. Thus, section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material. It is in the light of these principles, I would now proceed to examine the questions raised in this case.
27. In this connection reference to the Judgment of the Supreme Court in BALIAH (supra) would be useful. In that case, the question raised on behalf of the appellant was whether by reason of the repeal of the 1922 Act, by the 1961 Act, the prosecution in respect of the prior 46 proceedings under the 1922 Act were not saved and therefore, the prosecution under section 52 of the 1922 Act was not sustainable. The Acts to which the Supreme Court referred to in this judgment were the Income Tax Act (1922) and the Income Tax Act, (1961). Section 297 (1) of the 1961 Act had expressly repealed the 1922 Act. Clause (2) of section 297 provided that the matters expressly referred to in clause (a) to (m) were saved notwithstanding the repeal of the 1922 Act. In view thereof, it was contended on behalf of the appellant that under clauses (a) to (m) of section 297 (2) of the 1961 Act, the prosecution in respect of the proceedings pending at the commencement of the 1961 Act was not expressly saved and therefore, it must be presumed that Parliament had not intended to save prosecution in respect of proceedings pending at the commencement of the 1961 Act. The Supreme Court opined that there was no justification for this argument, in view of the provisions of section 6 of the G.C. Act. After considering the provisions of section 6, the Supreme Court observed thus: 47
"The principle of this section is that unless a different intention appears in the repealing Act, any legal proceeding can be instituted and continued in respect of any matter pending under the repealed Act as if that Act was in force at the time of repeal. In other words, whenever there is a repeal of an enactment the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says a different intention appears in the repealing statute. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject, the Court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The question is not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. Section 6 of the General Clauses Act therefore will be applicable unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new statute and the mere absence of a saving clause is by itself not material. In other words, the provisions of Section 6 of the General Clauses Act will apply to a case of repeal even if there is a simultaneous re- enactment unless a contrary intention can be gathered from the new statute. Having examined the provisions of Clause (2) of Section 297 of the 1961 Act we are of the opinion that it is not the intention of Parliament to take away the right of instituting prosecution in respect of proceedings which are pending at the commencement of the Act. 48
It is true that there is no express sub-clause in Section 297 (2) of the 1961 Act which provides for the continuation of such proceedings but our concluded opinion is that Parliament did not intend Section 297 (2) of the 1961 Act to be completely exhaustive and in regard to such matters as are not expressly saved by Section 297 (2) of the 1961 Act the provisions of Section 6 (e) of the General Clauses Act will apply. It follows therefore in the present case that under Section 6 of the General Clauses Act a legal proceeding in respect of an offence committed under the 1922 Act may be instituted even after the repeal of the 1922 Act by the 1961 Act and punishment may be imposed as if the repealing Act had not been passed."
27.1 The Supreme Court in M/S. P.V. MOHAMMAD BARMAY SONS (supra) was dealing with the submission that in view of section 81 (2) of the Foreign Exchange Regulation Act r/w section 6 of the G.C. Act, the power of the respondents to investigate and enforce the liability or penalty incurred under the repealed Act is saved, though the Act 7 of 1947 had been repealed under sub-section (2) of section 81 of the Act. The contention urged on behalf of the respondent in this case was that the repealed Act after the Act had come into force in 1973, is a dead corpse and no life into it could be blown with the aid of section 81 (2) of the Act or section 6 of the G.C. Act. The Supreme Court 49 did not find force in the contention. The Supreme Court observed that the effect of the repealed Act by operation of clause (e) of section 6 of the G.C. Act r/w sub-section (2) of section 81 is that, though the Act obliterates the operation of Act 7 of 1947, despite its repeal, the penalty, liability, forfeiture or prosecution for acts done while the repealed Act was in force were kept alive, though no action thereunder was taken when the repealed Act was in force. The Supreme Court further observed The Foreign Exchange Regulation Act (46 of 1973) did not evince any contrary intention. It merely reiterated the earlier law operating the field. Therefore, clause (d) of section 6 of the G.C. Act gets attracted to the acts done or the penalties incurred or forfeiture or punishment had already been committed before the repealed enactment, though no criminal proceedings have been actually initiated under repealed enactment before its repeal.
27.2 The Supreme Court in GAJRAJ SINGH AND OTHERS versus STATE TRANSPORT APPELLATE TRIBUNAL AND OTHERS - (1997) 1 SCC 650, in paragraph 25 while dealing with section 6 of the G.C. Act 50 made reference to the commentary of "Saving of rights acquired", in the Principles of Statutory Interpretation by G.P. Singh [(6th Edn.)] - 1996. The observation that was noted by the Supreme Court on page 413 of the commentary stated that the effect of clauses (c) to (e) of Section 6 of the GC Act is, speaking briefly, to prevent the obliteration of a statute in spite of its repeal to keep intact rights acquired or accrued and liabilities incurred during its operation and permit continuance or institution of any legal proceedings or recourse to any remedy which may have been available before the repeal for enforcement of such rights and liabilities.
27.3 Similarly, in GAMMON INDIA LTD. Versus SPECIAL CHIEF SECRETARY AND OTHERS - (2006) 3 SCC 354 the Supreme Court made reference to the book of Crawford on Interpretation of Laws which stated that an express repeal will operate to abrogate an existing law, unless there is some indication to the contrary, such as a saving clause. Even existing rights and pending litigations, both civil and criminal, may be affected although it is not 51 an uncommon practice to use the saving clause in order to preserve existing rights and to exempt pending litigation.
27.4 In IT COMMISSIONER versus SHAH SADIQ AND SONS - (1987) 3 SCC 516 the Supreme Court observed that whatever rights are expressly saved by the "saving" provision stand saved, but, that does not mean that rights which are not saved by the "savings" provisions are extinguished or stand ipso facto terminated by the mere fact that a new statute repealing the old statute is enacted. Rights which have accrued are saved unless they are taken away expressly. This is the principle behind section 6 (c) of G.C. Act.
28. I would like to consider the submission of learned Advocate General that since the enquiry had commenced under the old Act much before the new Act came into force, repealing the old Act, the proceedings before enquiry Committee and the action taken on the basis of the report thereof has been saved as contemplated by section 78 (2) of the new Act. The writ petition No. W.P.7264/1991, instituted by B.R.G.K. Achar 52 against the State was disposed of vide order dated 19th July, 1996. The grievance of the petitioner in the said writ petition related to failure on the part of the respondents in disposing of his application under section 26 of the old Act. The writ petition was disposed of with directions to the respondents to consider and dispose of the petitioner's representation / application seeking action under section 26 of the Act. In view thereof, the action was initiated and according to the respondents it ended in the order, impugned in the present writ petition. On the other hand, the enquiry that was initiated on the basis of the order of this Court dated 19th July, 1996 in W.P. No.7264/1991, according to the petitioners, ended in the report of the Endowment Commissioner who was appointed as enquiry officer by the State Government and therefore, constitution of the enquiry Committee in 2006 was illegal and cannot be stated to be the out come of the enquiry initiated in pursuance of the aforesaid order of the High Court. It was contended that the Endowment Commissioner submitted his report on 4.1.2002 and on the basis thereof on 28.3.2002 the order was passed closing 53 the case of the complainant (Achar) by imposing certain conditions for better administration of the Mutt. Learned counsel for the petitioner fairly admitted that report of the Endowment Commissioner was the report of a single member enquiry committee.
28.1 Neither the report of Endowment Commissioner nor any order passed by the Government on the basis thereof is placed on record except some passing reference made thereto in the order impugned in the present writ petition. Even if it is assumed that such enquiry was conducted by the Endowment Commissioner, it cannot be stated to be an outcome of the enquiry under section 26 of the old Act that was initiated on the basis of the directions issued by the Court in the earlier writ petition.
29. In the earlier writ petition, a specific direction was issued to consider the application filed by Achar for initiation of an enquiry under section 26 of the old Act. Section 26 of the old Act provided an enquiry into alleged mismanagement / misappropriation of Mutt and the Mutt 54 properties by a committee of not less than three persons. In other words, section 26 provides that for holding an enquiry into the mismanagement of Mutt and Mutt properties, the Government had power to constitute a committee to hold enquiry of not less than three persons. In view thereof, the enquiry conducted by the Endowment Commissioner cannot be connected with the enquiry that was initiated in pursuance of the order passed by this Court much before the new Act came into force. A report of the Committee comprising of five members, in my opinion, is the report that was submitted on the basis of the enquiry, initiated in pursuance of the order passed by this Court dated 19.7.1996 in W.P.7264/1991.
30. The next question therefore, falls for my consideration is whether the action initiated was saved. In other words, the action / proceedings initiated for holding an enquiry in pursuance of the order passed by this Court under the old Act and taking over the management of the Mutt on the basis of the report of the committee can be said to be saved under section 78 of the new Act. 55
30.1 Sub-section (2) of section 78 of the new Act repeal about seven enactments including the old Act. However, they were repealed subject to the provisions contained in section 6 of the KGC Act. The proviso to sub- section (2) provides that section 6 of the KGC Act shall be applicable in respect of the repeal of the old Act and sections 8 & 24 of the KGC Act shall be applicable as if the old Act is repealed and re-enacted by this Act. Section 6 of the KGC Act and section 6 of the GC Act are pari materia.
Section 6 of the KGC Act reads as follows:
Effect of repeal - Where this Act or (any Mysore Act of Karnataka Act) made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-
a) revive anything not in force or existing at the time at which the repeal takes effect; or
b) affect the previous operation of any enactment so appealed or anything duly done or suffered thereunder; or
c) affect any right, privilege, obligation or liability required, accured or incurred under any enactment so appealed; or
d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any treatment so repealed; or 56
e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the appealing Act had not been passed.
Insofar as the expression employed in section 6 that "unless a different intention appears" is concerned, learned counsel for the petitioner vehemently submitted that different intention is clearly reflected in the new Act and therefore, the provisions contained in section 6 are not attracted. In support of this contention he invited my attention to Chapter VIII, in particular section 42 therein to contend that similar chapter also finds place covering the Mutts in Chapter IV of the old Act. I have perused both the chapters, and in my opinion, it cannot be stated that insertion of Chapter VIII in the new Act even remotely suggests different intention. In other words, no different intention on the basis of Chapter VIII of the new Act appears so as to exclude application of section 6 to the KGC Act.57
30.2 Sub-section (4) of section 1 of the new Act was amended twice and sub-section (4) after the last amendment provides that the new Act shall not apply to a Mutt or temple attached to or managed by Mutt. In order to make it further clear, by way of the first amendment Act the definitions of `Mutt' and `Hindu Religious Denomination' were introduced. These definitions were introduced in order to make it clear as to what "Mutt" would mean for the purposes of the new Act. Thus, the Mutts were excluded from the application of the new Act. It would be relevant to re-produce section 2 of the second Amendment Act amending sub-section (4) of section 1, which reads as follows:"2. Amendment of section 1: In the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 (Karnataka Act 33 of 2001) (hereinafter referred to as the Principal Act), in section 1, - for sub-section (4), the following shall be substituted, namely:-"(4) It shall apply to, all religious institutions or charitable endowments notified under section 23, Section 53 and Chapter VIII shall apply to all religious institutions or charitable endowments other than those notified under section 23:58Provided that it shall not apply to a math or temple attached to or managed by math."
In order to see whether any different intention appears in the new Act, it would be useful to make a reference to similar provisions in the Karnataka Rent Act, 1999. In the Rent Act, 1999 the following section was inserted:"70. Repeal and Savings:- (1) The Karnataka Rent Control Act 1961 (Karnataka Act 22 of 1961) is hereby repealed.(2) Notwithstanding such repeal and subject to the provisions of Section 69:
(a) all proceedings in execution of any decree or order passed under the replaced Act and pending at the commencement of this Act, in any Court shall be continued and disposed off by such ?Court as if the said enactment had not been repealed:
(b) all cases and proceedings other than those referred to in clause (a) pending at the commencement of this Act before the Controller, Deputy Commissioner, Divisional Commissioner, Court District Judge or the High Court of other authority, as the case, may be in respect of the premises to which this Act applied shall be continued and disposed off by such Controller, Deputy Commissioner, Divisional Commissioner, Court, District Judge or the High court or other authority in accordance with the provisions of this Act.
(c) All other cases and proceedings pending in respect of premises to which this Act does not apply shall as from the date of commencement of the Act stand abated.59
By the Rent Act, 1999 the Karnataka Rent Control Act, 1961 was repealed. Clause (c ) of sub-section 2 of section 70, of the Rent Control Act, 1999 clearly expresses different intention. All proceedings in execution of all or any decree or order passed under the repeal Act were saved by clause (a) of sub-section (2) of section 70. Similarly, all cases and proceedings pending at the commencement of the Rent Act, 1999 were saved and allowed to be continued in accordance with the provisions of the said Act. Insofar as the cases of remaining category and the proceedings pending in respect of the premises to which the rent Act of 1999 does not apply shall, as from the date of commencement of the Act stand abated. In other words, all other cases and proceedings stood dismissed as abated from the date of commencement of the Rent Act, 1999. Such intention does not find place in section 78 r/w section 1 of the new Act.
31. It is now well settled that whenever there is a repeal of an enactment, the consequences laid down in section 6 of the KGC Act would follow unless, as the 60 section itself says, a different intention appears in the repealing statute. The question is not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. Section 6 of the KGC Act, therefore, would be applicable unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. In other words, the provisions of section 6 of the KGC Act would apply to a case of repeal even if there is a simultaneous re- enactment unless contrary intention can be gathered from the new enactment. Having examined the provisions contained under section 78 in the light of the other provisions of the new Act, I am of the opinion that it was not an intention of the legislature to terminate even the proceedings which were initiated before the repeal pursuant to the provisions contained in the old Act, in particular sections 26 & 27 thereof. It is true that there is no express provision in section 78 of the new Act for continuance of such proceedings but as observed earlier, I did not find different intention of the legislature appearing either in section 78 or any other provision of the Act. It 61 therefore, follows in the present case, that under section 6 of the KGC Act, the proceedings (enquiry) that were initiated on the basis of the order passed by this Court dated 19.7.1996 in W.P. No. 7264/91 was rightly proceeded with and taken to its logical conclusion. In other words, the provisions contained in section 6 of the KGC Act get attracted in respect of the proceedings which had commenced before repeal of the old Act.
32. The impugned order was passed by the Government also in exercise of the powers vested in it under Article 162 R/w 31A of the Constitution. In this connection, I would now like to consider the submission of the learned counsel for the petitioner that the Mutts have been conferred with the fundamental right to own, hold and administer properties and they have been specifically excluded from the application of the provisions of the Act or any regulation or supervision by the Government under Article 26 of the Constitution. It was submitted that the mathadipathi's right to be the religious and secular head of a Mutt and the proprietory right to hold and administer the 62 properties of the Mutt are blended with each other, and therefore, the appointment of an administrator for the secular affairs of the Mutt relating to administration of the properties of the Mutt by the impugned order is unconstitutional and illegal.
33. Before I deal with the submissions advanced by learned counsel for the parties, I would like to make brief reference to the Judgments relied upon by learned counsel for the parties.
33.1 The Supreme Court in BISHAMBHAR DAYAL CHANDRA MOHAN (supra) dealt with Articles 300-A and162 of the Constitution. The short question that fell for the consideration was whether the action of the State Government in setting up check-posts on its border and the stoppage and seizure of wheat in transit through the State of Uttar Pradesh during the course of inter-state trade and commerce to various destinations in the states of Madhya Pradesh and Maharashtra at the check-post at Saiyan on the border between the States of Uttar Pradesh and Madhya Pradesh on the strength of its instructions 63 conveyed by its teleprinter message was in violation of Article 301 of the Constitution. The relevant observations to which my attention was drawn in paragraph 41 read thus:"The State Government cannot while taking recourse to the executive power of the State under Article 162, deprive a person of his property. Such power can be exercised only by authority of law and not by a mere executive fiat or order. Article 162, as is clear from the opening words, is subject to other provisions of the Constitution. It is, therefore, necessarily subject to Article 300-A. The word "law" in the context of Article 300-A must mean an Act of Parliament or of a State legislature, a rule, or a statutory order, having the force of law, that is positive or State-made law. The decision is Wazir Chand v. State of H.P. and Bishan Das v. State of Punjab are an authority for the proposition that an illegal seizure amounts to deprivation of property without the authority of law. In Wazir Chand case the police in India seized goods in possession of the petitioner in India at the instance of the police of the State of Jammu and Kashmir. The seizure was admittedly not under the authority of law, inasmuch as it was not under the orders of any magistrate' nor was it under Sections 51,96 98 and 165 of the Code of Criminal Procedure, 1898, since no report of any offence committed by the petitioner was made to the police in India, and the Indian police were not authorized to make any investigation. In those circumstances, the Court held that the seizure was not with the authority of law and amounted to an 64 infringement of the fundamental right under Artile 31(1). The view was reaffirmed in Bishan Das Case".
(emphasis supplied) 33.2 In SWAMIAR (supra) the Supreme Court was dealing with an appeal against the judgment of the Division Bench by which the petition presented by respondents under Article 226 of the Constitution was allowed and directed writ of prohibition to issue in his favour prohibiting the appellant from proceeding with the settlement of a scheme in connection with a Mutt known as Shirur Mutt to which the petitioner was head / superior. The Mutt was governed by Madras Hindu Religious Endowment Act (Act 2 of 1927). For the reasons the Hindu Religious Endowment Board functioning under the said Act had intervened and in exercise of its powers under section 61-A of the said Act called upon the swami to appoint a competent manager to manage the affairs of the institution. The petitioner's case was that the action of the Board was instigated by one Lakshminarayana Rao of Udupi who wanted to have control over the affairs of the Mutt. It appears that in pursuance of the directions of the 65 Board, one Sripath Achar was appointed an agent and a power of attorney was executed in favour on 24.12.1948. The agent, it was alleged by the petitioner wanted to have his own way in all the affairs of the Mutt and was paying no regard whatsoever to the wishes of the Mahant. He did not even submit accounts to the Mahant and deliberately flouted his authority. In this state of affairs, the Swami had served a notice upon the agent terminating his agency and calling upon him to hand over to the matadhipathi all account papers and vouchers relating to the institution together with the cash in hand. Far from complying with this demand, the agent who was supported by the aforesaid Lakshminarayana Rao questioned the authority of Swami to cancel his agency and threatened that he would refer the matter for action to the Board. It is in this backdrop the proceedings were initiated. The relevant observations to which my attention was specifically drawn read thus:"17. It will be seen that besides the right to manage its own affairs in matters of religion, which is given by cl. (b) the next two clauses of Art.26 guarantee to a religious denomination the right to acquire and own 66 property and to administer such property in accordance with law. The administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in matters of religion. The letter is a fundamental right which no Legislature can take away, where as the former can be regulated by laws which the Legislature can validly impose. It is clear, therefore, that questions merely relating to administration of properties belonging to a religious group or institution are nor matters of religion to which cl. (b) of the Article applies.
18. Restrictions by the State upon Arts.25 and 26 on grounds of public order, morality and health. Clause (2)(a) of Art. 25 reserves the right of the State to regulate or restrict any economic, financial, political and other secular activities which may be associates with religious practice and there is a further right given to the State by sub-cl. (b) under which the State can legislate for social welfare and reform even though by so doing it might interfere with religious practices. The learned Attorney-General lays stress upon cl.(2)(a) of the Article and has contention is that all secular activities, which may be associated with religion but do not really constitute an essential part of it, are amenable to State regulation.
19. ..........what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the 67 day, then periodical ceremonies should be performed in certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character all of them are religious practices and should be regarded as matters of religion within the meaning of Art. 26(b).
22. Our Constitution-makers, however, have embodies the limitations which have been evolved by judicial pronouncements in America or Australia in the Constitution itself and the language of Arts. 25 and 26 is sufficiently clear to enable us to determine without the aid of foreign authorities as to what matters come within the purview of religion and what do not. As we have already indicated, freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well subject to the restrictions which the Constitution itself has laid down Under Art. 26(b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.
Of course, the scale of expenses to be incurred in connection with these religious observances would be a matter of 68 administration of property belonging to the religious denomination and can be controlled by secular authorities in accordance with any law laid down by a competent Legislature: for it could not be the injunction of any religion to destroy the institution and its endowments by incurring wasteful expenditure on rites and ceremonies. It should be noticed, however, that under Art. 26(d), it is fundamental right of a religious denomination or its representative to administer its properties in accordance with law; and the law, therefore, must leave the right of administration to the religious denomination itself subject to such restrictions and regulations as it might choose to impose".
(emphasis supplied) 33.3 The Supreme Court in BISHAMBHAR DAYAL CHANDRA MOHAN (supra) after referring to its judgment in RAM JAWAYA KAPUR v. STATE OF PUNJAB - AIR 1955 SC 549 which dealt with Article 73 & 162 of the Constitution observed that the State in exercise of its executive power indulged with the duty and the responsibility of carrying on the general administration of the State. So long as the State does not go against the provisions of the Constitution or any law, the width and multitude of his executive power cannot be circumscribed. If there is no enactment covering a particular aspect, 69 certainly the Government can carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf. Otherwise, the administration would come to a standstill. Similarly, in paragraph 22 the Supreme Court observed that "executive power" of the State being co-extensive with its legislative power under Entry 33, List III it relates to all matters covered by the subject `foodstuffs', trade and commerce in, and the production, supply and distribution thereof. This is, of course, subject to the limitation contained in proviso to Article 162 which directs that in any matter with respect to which the legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to and limited by the executive power expressly conferred by the Constitution or by any law made by parliament upon the Union or authorities thereof".
33.4 In KRISHNA SINGH v. MATHURA AHIR AND OTHERS - AIR 1980 SC 707 the Supreme Court in paragraphs 20 & 21 observed thus:70
" 20. The property belonging to a math is in fact attached to the office of the mahant, and passed by inheritance to no one who does not fill the office. The head of a math, as such, is not a trustee in the sense in which that term is generally understood, but in legal contemplation he has an estate for life in its permanent endowments and an absolute property in the income derived from the offerings of his followers, subject only to the burden of maintaining the institution. He is bound to spend a large part of the income derived from the offerings of his followers on charitable or religious objects. The words `the burden of maintaining the institution' must be understood to include the maintenance of the math, the support of its head and his disciples and the performance of religious and other charities in connection with it, in accordance with usage.21. From these principles, it will be sufficiently clear that a math is an institutional sanctum presided over by a superior who combines in himself the dual office of being the religious or spiritual head of the particular cult or religious fraternity, and of the manager of the secular properties of the institution of the math."(emphasis supplied) 33.5 In TILKAYAT SHRI GOVINDLALJI MAHARAJ etc. v. STATE OF RAJASTHAN AND OTHERS - AIR 1963 SC 1638 the Supreme Court observed thus:"There can be no doubt that the right to have the custody of the property such as the Custodian has, or the right to manage the 71 property such as the Manger possesses, or the right to administer the trust property for the benefit of the beneficiary which the Trustee can do, cannot be regarded as a right to property under Art. 19 (1)(f) and for the same reason, it does not constitute property under Art. 31(2). If it is held that the Tilkayat was no more than a Custodian, Manager and Trustee properly so called, there can be no doubt that he is not entitled to rely either on Art. 19(1)(f) or on Art.
31(2). Therefore, on this construction of clause 1 of the Firman, the short answer to the pleas raised by the Tilkayat under Arts. 19(1)(f) and 31(2) is that the rights such as he possesses under the said clause cannot attract Art. 19(1)(f) or Art. 31(2)".
Let us then enquire what is the right which has been contravened by the relevant provisions of the Act. The only right which according to the denomination, has been contravened is the right of the Tilkayat to manage the property belonging to the temple. It is urged that throughout the history of this temple, its properties have been managed by the Tilkayat and so, such management by the Tilkayat amounts to a religious practice under Art. 25(1) and constitutes the denomination's right to manage the affairs of its religion under Art. 26(b). We have no hesitation in rejecting this argument. The right to manage the properties of the temple is a purely secular matter and it cannot, in our opinion be regarded as a religious practice so as to fall under Art. 25(1) or as amounting to affairs in matters of religion".
33.6 In REV. SIDHRAJBHAI SABBAI AND OTHERS v. STATE OF GUJARAT AND ANOTHER - AIR 1963 SC 450 the Supreme Court observed that 72 interference with the right of bare management of an educational institution does not amount to infringement of the right to property under Article 19 (1) (f).
33.7 In RATILAL vs. STATE OF BOMBAY - AIR 1954 SC 388 the Supreme Court while dealing with Article 26 in paragraph 11 held thus:
"So far as article 26 is concerned, it deals with a particular aspect of the subject of religious freedom. Under this article, any religious denomination or a section of it has the guaranteed right to establish and maintain institutions for religious and charitable purposes and to manage in its own way all affairs in matters of religion. Rights are also given to such denomination or a section of it to acquire and own movable and immovable properties and to administer such properties in accordance with law. The language of the two clauses (b) and (d) of article 26 would at once bring out the difference between the two. In regard to affairs in matters of religion, the right of management given to a religious body is a guaranteed fundamental right which no legislation can take away. On the other hand, as regards administration of property which a religious denomination is entitled to own and acquire, it has undoubtedly the right to administer such property but only in accordance with law. This means that the State can regulate the administration of trust properties by means of laws validly enacted but here again it should be remembered that under article 26 (d), it is the religious denomination itself which has been given the right to administer its property in accordance 73 with any law which the State may validly impose. A law, which takes away the right of administration altogether from the religious denomination and vests it in any other or secular authority, would amount to violation of the right which is guaranteed by article 26 (d) of the Constitution".
34. The old Act did not define "Mutt". The new Act in the explanation to sub-section (4) of section 1 explains, for the purpose of the new Act, what does Mutt mean. By the first amendment it also provided a definition of `Mutt' and `Hindu Religious Denomination'. Neither the old Act nor the new Act defines `matadhipathi' or `peetadhipathi'. The Supreme Court in SWAMIAR while dealing with the terms `matadhipathi' observed that it is certainly not a corporate body. In paragraph 14 of SWAMIAR the Supreme Court observed that "he is the head of spiritual fraternity and by virtue of his office has to perform the duties of religious teacher. It is his duty to practice and propagate the religious tenets, of which he is an adherent and Supreme Court further observes that if any provision of law prevents him from propagating his doctrines, that would certainly affect the religious freedom which is guaranteed to every person under Article 25. The new Act 74 defines Mutt. In the definition of Mutt, it also demonstrates the duties/functions of Matadhipathi. Section (19-A) of section 2 of the new Act reads thus:
"Mutt" means a religious institution presided over by a person whose principal duty is to engage himself, in teaching and propagation of religion, teachings and philosophy of the denomination, sect or sampradaya to which the Math belongs and in imparting religious instruction and training and rendering spiritual service who exercise 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 including religious institutions attached either religiously or administratively to the Mutts."
34.1 The Supreme Court while dealing with the expression "religious denomination" in the light of the provisions contained in Article 26 in paragraph 15 of SWAMIYAR observed thus:
"As regards Act 26 the first question is, what is the precise meaning or connotation of the expression "religious denomination" and whether a Math could come within this expression. The word "denomination" has been defined in the Oxford Dictionary to mean "a collection of individuals classed together under the same name: a religious sect or body 75 having a common faith and organization and designated by a distinctive name". It is well known that the practice of setting up Maths as centres of theological teaching was started by Shri Sankaracharya and was followed by various teachers since then. After Sankara, came a galaxy of religious teachers and philosophers who founded the different sects and sub-sects of the Hindu religion that we find in India at the present day."
35. The question therefore falls for my consideration is whether appointing an administrator to administer moveable and immoveable properties of the Mutt by the State Government exercising its powers under the old Act (sections 26 & 27) or under Article 162 r/w Article 31-A of the Constitution would amount to depriving the Mutt / denomination of its properties which is a fundamental right. Undoubtedly, religious denomination are conferred with fundamental rights guaranteed under Article 26 and also the rights under Article 300-A of the Constitution of India. The Mutts / religious denomination have a right to own, hold and administer properties.
36. The rights which are conferred upon Mutt / denomination whether could be termed as a fundamental right of matadhipathi, who is the head of spiritual fraternity, is the question and answer to this question in my opinion is in the negative. Article 26 of the Constitution clearly provides that every "religious denomination" or "any section thereof" shall have the right to establish and maintain institutions for religious and charitable purposes to manage its own affairs in the matter of religion; to own and acquire moveable and immoveable property; and to administer such property in accordance with law. The word "denomination" as defined in clause 16 of the new Act means a collection of Hindu individuals or devotees classed together under the same name, a Hindu religious sect or sub-sect or body or a section thereof or a spiritual fraternity represented by it having a common faith, rituals, observances, ceremonies and mode of worship which is designated by a distinctive name. Mathadipati/Peethadipati could be, at the most, a part of the religious denomination or their representative. Even if it is accepted that he has the right to administer 77 the mutt properties, his right is as custodian or as the manager or as administrator for the benefit of devotees/denomination and it cannot be regarded as the right to property or his fundamental right under the constitution. In the present case even if it is accepted that some right, by the impugned action, has been contravened, it is the right of Mathadipati and not of denomination. The Supreme Court in SWAMIAR, as observed earlier, considered the word `denomination' to mean `collection of individuals classed together under the same name; a religious sect or body having common faith and organization and designated by a distinctive name". The Supreme Court in SRI.
ADIVISHWESHWARA OF KASHI VENKATESHWARA TEMPLE, VARANASI - (1997) 4 SCC 606 in paragraph 26 observed that the denominational sect is also bound by the constitutional goals and they too are required to abide by law.
37.The rights conferred under Article 26, and 300-A in my opinion, can be claimed by religious denomination 78 or any section thereof and not by any individual, such as Matadhipathi, who at the most, is only a part of the denomination or who is supposed to be only the head of spiritual fraternity and supposed to perform the duties of a religious teacher. His duty is to practice and propagate the religious tenets of which he is an adherent. The matadhipathi at the most occupies the position of a trustee with regard to Mutt, which is a public institution. Undoubtedly, some amount of control or supervision over the due administration of the Mutt and due appropriation of its funds is certainly necessary in the interest of public. An appointment of administrator to manage the properties of Mutts therefore, in my opinion, would not offend any fundamental right of the matadhipathi. In other words the matadhipathi, though has some amount of control or supervision over the due administration of the Mutt, he does not become owner of the properties of Mutts and therefore, the question of deprivation of property by merely appointing an administrator at the request of devotees/denomination does not arise and it 79 would not amount to taking away the fundamental rights guaranteed under Article 26 of the Constitution.
38. The State has power under Article 162 of the Constitution of India to make executive orders when the field is not covered by any law. In the present case even if it is assumed that the provisions of the old Act in view of its repeal by the new Act are not attracted and the provisions of the new Act do not apply to Mutts, the State Government certainly can exercise its powers under Article 162 of the Constitution. The contention that an executive order is not law and any right to property can only be taken away by way of law is of no avail to the petitioners in view of the provisions contained in Article 13 of the Constitution of India, which clearly defines what is law and that it includes any statutory order/notification. Thus, State in exercise of its executive power can certainly issue an order / notification appointing an Administrator for the Mutts in public interest, if matadhipathi or persons in the helm of affairs 80 of the Mutt are found to be mismanaging the affairs of mutt and / or misappropriating Mutt properties.
38.1 Under Article 26 of the Constitution religious denomination or any section thereof, have the right to own and acquire moveable and immoveable properties and to administer such property in accordance with law. Right to manage the properties of a temple or Mutt which represents the secular or temporal aspect is not a matter of religion or religious practices. This aspect not being a "matter of religion or religious practices" can be regulated by the State by "law", the law within the meaning of Article 13 of the Constitution. In the present case, having regard to the nature of order / notification under challenge, it cannot be stated that the Government has any intention to take away the powers of Mutt / denomination to manage / administer their properties permanently or the power of administration permanently. I am satisfied that the backdrop against which the order appointing Administrator has been issued / passed would definitely help in restoring good health of the Mutt. In any case, the temporary exercise of a corrective process 81 indeed, promotes and protects rights of the religious denomination under Article 26 (c) and (d). I am also satisfied that it is the duty of the State and so also of religious denomination to protect the Mutt from mal- administration. It is well settled that any regulation which facilitates and promotes enjoyment of the right is not an infringement of such right. Even where the rights are conferred in absolute terms, they are subject to regulatory laws. The analogy of Article 30 (1) of the Constitution is on the point. Though the right under Article 30 (1) is in terms absolute, regulatory laws can be made in respect of those rights because such laws do not impair or destroy the substance of the rights to enable it to be enjoyed more effectively. [See SIDHRAJBHAI SABBAI & ORS. (supra) ]
39. The Administrator in the present case is not appointed permanently. He is appointed only for a period of two years. In any case, the Administrator is not a substitute for matadhipathi and his management is only to facilitate better administration of the Mutt. None of the 82 religious rights of the matadhipathi are either touched or taken away by the impugned order. The Act of appointing the Administrator does not in any way impair the right of the matadhipathi or the rights guaranteed under Article 26 of the Constitution of India. On the contrary, it seeks to protect and promote that right. The rights guaranteed under Article 26, in other words, are protected from abuse, exploitation and mal-administration by the impugned order. In the circumstances, I do not find any merit in the writ petition and hence the petitions are dismissed.
40. Before I part, I would like to add few more words. After 1.5.2003 neither the old Act nor the new Act would apply to Mutts. In this part (South) of the country, there are lot of Mutts having huge moveable and immoveable properties including priceless articles of gold and silver having antique value. Having regard to the provisions of the Constitution of India it is true that the Government can exercise its powers under Article 162 r/w Article 31-A of the Constitution of India to take corrective measures against the Mutts, indulging in mismanagement, 83 mal-administration and misappropriation of its properties. But having regard to practical difficulties, it would not be proper to expect the Government to keep watch on such institutions and to take action in every such situation. In view of the repeal of old Act and in view of the provisions contained in sub-section (4) of section 1 of the Act which excludes its application to the Mutts, it would be difficult even for the devotees / denomination to approach either the Government or even the Court against the matadhipathi, and the persons who are at the helm of affairs, if they are indulging in mismanagement of the Mutt and misappropriation of its properties. Neither the learned Advocate General nor any other advocate appearing in these petitions could offer any explanation/grounds for excluding Mutts from the purview of new Act. I therefore, feel it necessary to request the Government, in the larger interest of not only denomination / devotees of Mutts but the people at large for that matter, to re-visit the issue/question and consider whether Mutts, could be brought within the purview of new Act and / or to bring some enactment so as to keep control 84 over non-religious functions of the Mutt and to avoid mismanagement of properties and misappropriation of its funds. The learned Advocate General is requested to bring this judgment to the notice of the Government for its consideration.
JUDGE SAK 85 DBBJ 2.01.13 PC:
At this stage learned counsel for the petitioner prays for continuation of the order of status-quo granted on 19.6.2012 for a period of four weeks. Though the prayer was strongly opposed by learned counsel for the respondents, I am inclined to continue the order of status- quo in terms of the order dated 19.6.2012 for a period of three weeks from today. Order accordingly. It is made clear to learned counsel for the parties, that the order of status-quo shall not be extended further.