Sri Chennabasaveswaradeva of Ulvi v. the State of Karnataka

Karnataka HC20 Nov 2018WA/331/2008

Case brief

AI extract

What is this about?

The High Court of Karnataka disposed of an appeal against a single judge's order that quashed a government order deleting a temple from the list of notified institutions. The Court modified the impugned order to set aside the portion quashing the deletion, citing a fresh government order from 2016 reiterating the deletion, and reserved liberty for respondents to challenge the latest order.

What did the court decide?

The impugned order was modified to set aside the portion quashing the government order dated 20.02.2004 deleting the temple. Liberty reserved to respondents to assail the latest Government Order dated

Sri Chennabasaveswaradeva of Ulvi Vs the… — Pension and Retirement Benefits | Karnataka HC (2018)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 20^TH DAY OF NOVEMBER, 2018

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PRESENT

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THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA

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AND

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THE HON’BLE MR. JUSTICE BELLUNKE A.S.

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W.A.NO.331/2008 (GM/RC)

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BETWEEN :

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SRI CHENNABASAVESWARADEVA OF ULVI PO.KUMBARWAD PET, SUPA TALUK (JOIDA), UTTARA KANNADA DISTRICT, REPRESENTED BY ITS TRUSTEES,

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BASAVARAJ ADIVEPPA KITTUR, AGED ABOUT 72 YEARS, CHAIRMAN, SRI CHENNABASAVESHWARADEVA OF ULVI.

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GANGADHAR CHANNAPPA KITTUR, AGED ABOUT 45 YEARS, TRUSTEE, SRI CHENNABASAVESWARADEVA OF ULVI,

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... APPELLANTS

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(BY SRI JAYAKUMAR S PATIL, SENIOR COUNSEL FOR SRI MAHANTESH C KOTTURSHETTAR ADVOCATE)

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AND :

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THE STATE OF KARNATAKA BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE (MUJRAI), M.S.BUILDING, BANGALORE-560001.

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2.	THE DEPUTY COMMISSIONER, UTTARA KANNADA DISTRICT, KARWAR, DIST: UTTARA KANNADA.
3.	THE ASSISTANT COMMISSIONER, KARWAD SUB DIVISION, KARWAR, UTTARA KANNADA DISTRICT.
4.	THE TAHSILDAR SUPA (JOIDA)TALUK, UTTARA KANNADA DISTRICT.
5.	M. JAYAKUMR S/O MALLAPPA, AGED ABOUT 52 YEARS, R/AT JAYADEVA CIRCLE, DAVANAGERE.
6.	P VEERENDRA KUMAR, S/O PARAMASHIVAN, AGED ABOUT 39 YEARS, R/AT OMKARA NILAYA, CHURCH BADAVANE, CHITRADURGA-577501.
7.	G S KUMARAGOWDA S/O P.M.SIDDEGOWDA, AGED ABOUT 32 YEARS, R/AT BASAVA MANTAPA ROAD, CHITRADURGA-577501. ...RESPONDENTS

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(BY SRI RAVI V.HOSMANI, AGA FOR R1-R4) (BY SRI R.M.KULKARNI, ADVOCATE FOR R6) (BY SRI SUNIL DESAI, ADVOCATE FOR R5 & 7)

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THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NO.34690/ 2004 DATED 21.01.2008.

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THIS APPEAL COMING ON FOR ORDERS THIS DAY, NAGARATHNA, J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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Though this appeal is listed for orders to ascertain the present status of the case before the Hon’ble Supreme Court, with the consent of learned Senior Counsel appearing for the appellant, learned Additional Government Advocate appearing for respondent Nos.1 to 4 and learned counsel appearing for respondent No.5 to 7, the writ appeal is heard finally.

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The legality and correctness of order dated 21.01.2008 passed in W.P.No.34690/2004 is assailed in this appeal.

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Learned Senior Counsel appearing for the appellants has filed a memo stating that subsequent to the interim order passed by this Court on 13.06.2008, the respondents/authorities have reconsidered the matter and have passed a fresh order on 09.08.2016 reiterating the

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deletion of the appellant Temple i.e., Channabasaveshwara Devaru, Ulavi, from the list of Notified Institutions under Section 23 of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 (hereinafter referred to as ‘the Act’, for the sake of brevity) as well as the Karnataka Hindu Religious Institutions and Charitable Endowments Rules, 2002 (hereinafter referred to as ‘the Rules, 2002’ for the sake of convenience) made thereunder on the recommendation made by the Rajya Dharmika Prarishath. Therefore, learned Senior Counsel submitted that the writ appeal could be disposed of in view of the subsequent developments in the matter.

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The memo is taken on record.

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Briefly stated the facts are that respondent Nos.5 to 7 herein had assailed deletion of the appellantTemple from the list of Notified Institutions issued by Gazette Notification dated 30.04.2003 under Section 23 of the Act.

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Learned single Judge while considering the said controversy quashed the order dated 20.02.2004 by which the appellant-Temple was deleted from the list of Notified Institutions (Annexure-C), and having done so, directed the respondents/authorities to reconsider the correctness and legality of the deletion of the Temple from the list of Notified Institutions and thereafter to pass fresh orders.

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Being aggrieved by the quashing of the order dated 20.02.2004 (Annexure-C) by which the appellant Temple was deleted from the list of Notified Institutions, respondent Nos.5 to 7 had filed the writ petitions. But on account of the quashing of the said order resulting in the appellant Temple being re-included in the list of Notified Institutions, this appeal has been filed.

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Learned Senior Counsel appearing for the appellant has drawn our attention to the interim order passed by this Court dated 13.06.2018 and he submitted that since the said interim order as well as the other directions given in the impugned order has been given

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effect to by the respondents/authorities and by virtue of Government Order dated 09.08.2016, the deletion of the appellant-Temple from the list of Notified Institutions has been reiterated, the writ appeal could be disposed of by modifying the impugned order insofar as it quashed the earlier government order dated 20.02.2004 (Annexure-C).

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Learned counsel appearing for respondent Nos.5 to 7 on perusing the Government Order dated 09.08.2016 submitted that if it was to be construed that the said Government order is a reiteration of the earlier order dated 20.02.2004 which has been quashed by the learned Single Judge in the writ petition, then opportunity may be given to the said respondents to assail the correctness of the said order.

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Learned Additional Government Advocate appearing for the respondents/ authorities submits that in view of the latest Government Order dated 09.08.2016 being passed by the State Government, appropriate orders may be made in this writ appeal.

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The Act (which is of the year 1997) was

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enforced on 30.04.2003. The object of the Act is to make better management and administration of Hindu Religious Institutions and Charitable Endowments in the State of Karnataka. The vires of the Act was challenged by several persons including various Temples/Trustees/Archaks by filing writ petitions before this Court questioning the constitutional validity of the Act. Some petitioners also challenged the notification issued under the Act with regard to the notification of the temple as Notified Institutions. The matter was heard by a learned single Judge of this Court and by order dated 09.09.2005, the Act was held to be valid and constitutional. The learned single Judge, however, reserved liberty to the petitioners, who were aggrieved by their inclusion in the notification, to approach the authorities under the Act, if so advised. That is if any such complaint was to be filed, the authorities were to hold an enquiry after giving an opportunity and thereafter pass orders in accordance with law. Being aggrieved by the order of the learned single Judge, Writ

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Appeal No.3440/2005 and connected appeals were filed. The Division Bench, by its judgment dated 08.09.2006, struck down the entire Act as well as the notification made thereunder as unconstitutional. The said judgment is reported as Sri Sahasra Lingeswara Temple and Others vs. State of Karnataka and Another (ILR 2006 KAR 4386) referred above. The Division Bench considered the case on the touchstone of the objects/history of the Act, scheme of the Act, constitutional validity of the Act with reference to Articles 14, 25 and 26 of the Constitution of India and gave its findings and conclusion. The Division Bench held that the Act was in violation of Articles 14, 25 and 26 of the Constitution and struck down the entire Act and the notifications issued under the Act as unconstitutional.

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State of Karnataka preferred Special Leave Petition in Civil Appeal No.5924/2008 before the Hon’ble Supreme Court assailing the judgment of the Division Bench in the aforesaid case. By its order dated 24/03/2015, the Hon’ble Supreme Court held that by

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earlier interim order dated 02/04/2007, the operation of the judgment of the Division Bench had been stayed. The effect of the said interim order is that the aforesaid Act continues to be in force. In the meanwhile, there has been amendment made to the Act, the validity of which was also considered by this Court. In the circumstances, the Hon’ble Supreme Court has deferred the hearing of the Civil Appeal arising out of the Division Bench of this Court referred to above, until this Court renders a decision on the validity of the amendments made to the Act. A direction was issued to this Court to expedite hearing and to conclude the same as soon as possible so that the Hon’ble Supreme Court would have the benefit of the views of this Court. A Division Bench of this Court (Dharwar Bench) has considered the matter and has allowed the writ petitions. The judgment of the Division Bench is reported in Maha Ganpati Shankara Devasthana, Sirsi and others vs. State of Karnataka and others [2016 (1) AKR 503] (Maha Ganpati Shankara Devasthana, Sirsi). Therefore, the Act continues to be in force while the

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validity of the amendment made to the Act is pending consideration before the Hon’ble Supreme Court.

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Under Section 23 of the Act a Temple could be

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notified as a Notified Institutions, if it falls under one of the parameters of the said section which reads as under:

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Section 23. Notified Institutions.- The State Government shall as soon as may be after the commencement of this Act publish by notification in respect of each revenue district, a list of.-

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(a) all Charitable Institutions and Hindu Religious Institutions which on the date of commencement of this Act are in the sole charge of the State Government under the provisions of Mysore Religious and Charitable Institutions Act, 1927 or for the benefit of which-

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(i) any monthly or annual grant in perpetuity is made from public revenues; or.

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(ii) tasdik allowance under section 19 of Mysore Religious and Charitable Inams Abolition Act, 1955 is paid;

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(b) all institutions registered under the Book of Endowments under the Hyderabad Endowment Regulations, 1349-F,

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(d) all institutions in Kodagu District which are governed by the Coorg Temple Funds Management Act, 1956;

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(e) All Hindu Religious Institutions registered under the Bombay Public Trust Act, 1950.

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(ee) All Hindu Religious Institutions which are in receipt of any monthly or annual grant from public revenue or any amount under the Karnataka Certain Inams (Abolition) Act, 1977.

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(f) Sri Renuka Yellamma Temple Saundatti, governed under the Renuka Yellamma Devasthana (Administration) Act, 1974.

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The inclusion of a Temple as a Notified Institution is

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by operation of law and the state Government has no discretion in the matter. But if a Temple has been wrongly

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included in the list of Notified Institutions or if a Temple ought to have been included in the list of Notified Institutions and has been excluded then the State Government has the power and competence to either delete a Temple which has been wrongly included in the list of Notified Institutions or include a Temple which has not been included or has been wrongly excluded from the list of Notified Institutions.

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In the instant case, by order dated 20.02.2004 (Annexure-C), the State Government excluded the appellant - Temple from the list of Notified Institutions. The same was challenged by respondent Nos.5 to 7 in the writ petition. When the learned single Judge directed that the matter may be reconsidered having regard to the submissions made by the learned Additional Government Advocate appearing for respondents/ authorities and to pass a fresh order as to whether the deletion of the Temple from the list of Notified Institutions was correct or not, then, in our view, the quashing of the order of deletion of the appellant Temple

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from the List of Notified Institutions that is order dated 20.02.2004 (Annexure-C) was unnecessary. It could have been kept in abeyance. Therefore, we modify the impugned order by setting aside that portion of the impugned order by which earlier order dated 20.02.2004 (Annexure-C) assailed in the writ petition was quashed.

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Pursuant to the directions issued by the learned Single Judge in impugned order and by interim order dated 13.06.2008, the respondents/ authorities have reconsidered the matter and have passed a fresh order bearing No.KamE 40 MuAaBi 2016, Bengaluru, dated 09.08.2016 by which, the appellant Temple has been once again deleted from the List of Notified Institutions and thereby they have affirmed and reiterated the earlier order dated 20.02.2004 (Annexure-C) which was assailed in the writ petition. The interim order passed on 13.06.2008 reads as under:

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“The operation of the impugned order dated 21.01.2008 passed by the learned Single Judge

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in W.P.No.34690/2004 is stayed only to the extent it quashed the order dated 20.02.2004 of the Government. It is made clear that the stay order will not operate against the reconsideration of the issue by the Government on the basis of the report of the Endowment Commissioner.”

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In view of the latest order dated 09.08.2016 reiterating the earlier order dated 20.02.2004 (Annexure-C) deleting the appellant Temple from the list of Notified Institutions, we find it just and proper to set aside that portion of the impugned order passed by the learned single Judge by which, order dated 20.02.2004 (AnnexureC) was quashed. Since the other directions issued by the learned Single Judge as well as interim order passed in this appeal has been complied with by the respondents/authorities and fresh order 09.08.2016 has been passed, there is nothing further to be considered in this appeal.

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In the circumstances, the writ appeal is disposed of in the aforesaid terms. Liberty is reserved to respondent

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Nos.5 to 7 to assail the latest Government Order dated 09.08.2016 if so advised.

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It is further clarified that this judgment has been passed on the premise that the Act as well as the Rules are in force having regard to the interim order passed by the Hon’ble Court as discussed above as a result of which the Act and the Rules are in operation.

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Sd/JUDGE

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Sd/JUDGE

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Kms/EM

Sri Chennabasaveswaradeva of Ulvi v. the State of Karnataka

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Sri Chennabasaveswaradeva of Ulvi v. the State of Karnataka

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