Skip to content


B.M. Sukumar Shetty, Managing Trustee, Kollur Mookambika Temple and ors. Vs. State by Its Secretary, Revenue Department and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 31937 of 2003 connected with Writ Petition Nos. 30675, 31517, 31928, 31951, 32
Judge
Reported inILR2005KAR5241; 2005(5)KarLJ481
ActsReligious Endowments Act, 1863; Charitable Endowments Act, 1890; Charitable and Religious Trusts Act, 1920; Bombay Public Trusts Act, 1950; Madras Hindu Religious and Charitable Endowments Act, 1951 - Sections 76(1); Coorg Temple Funds Management Regulations, 1892; Mysore Religious and Charitable Institutions Act, 1927; Hyderabad Endowments Regulations - Regulation 1349F; Coorg Temple Funds Management Act, 1956; Renuka Yellamma Devasthana (Administration) Act, 1974; States Reorganisation Act, 1956; Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 - Sections 1, 2(16), 3, 8, 9, 16, 17, 19, 20, 22, 23, 24, 34, 35, 37, 39, 40, 41, 42, 48, 49, 50, 52, 58, 60, 62, 63, 68, 69, 78 and 79; Karnataka Hindu Religious Institutions and Charitable Endowments Rules
AppellantB.M. Sukumar Shetty, Managing Trustee, Kollur Mookambika Temple and ors.
RespondentState by Its Secretary, Revenue Department and anr.
Appellant AdvocateA.G. Holla, Sr. Counsel and K. Shashikiran Shetty, Adv. in W.P. Nos. 31937 and 32349 of 2003, Padubidri Raghavendra Rao, Adv. in W.P. Nos. 30675, 34677, 3
Respondent AdvocateB.M. Krishna Bhat, Adv. in Respondent-3 in W.P. No. 52221 of 2003, K.N. Phanindra and Vaishali Hegde, Advs. for Respondent-2 in W.P. No. 15827 of 2005,
DispositionPetition dismissed
Excerpt:
- contempt of courts act, 1971 -- sections 15(1)(b) & 23 & high court of karnataka (contempt of court proceedings) rules, 1981, clause (v) of rule 5; [dr.k. bhakthavatsala, j] whether the consent of the advocate general is mandatory to initiate proceedings for criminal contempt of subordinate courts? held, as per clause (b) of sub-section (1) of section 15 of the act in the case of a criminal contempt, other than a contempt referred to in section 14, the supreme court or the high court may take action on its own motion or on a motion made by any other person, with a written consent of the advocate general. the high court of karnataka, in the exercise of powers conferred under article 215 of the constitution of india and section 23 of the act, and all other powers enabling in that.....h.n. nagamohan das, j.1. india is a land of religious and temples. the anthropological survey of india published the series 'peoples of india' describing the indian society, culture and traditions. some of the main conclusions of the survey is as under:(i) ours is one of the most diverse countries in the world. there are 4,635 ethnic communities in our country, each with its own hereditary features, language, dress, religious, customs, food habits, family relations and marriage rites. the basic lifestyles of these communities comprise the mainstream of the lives of our country's people;(ii) the people of india have emerged from miscegenation of several races like proto-australoid, paleo-mediterranean, caucasoid, negroid and mongoloid. various nationalities involved are: aryans, persians,.....
Judgment:

H.N. Nagamohan Das, J.

1. India is a land of religious and temples. The Anthropological Survey of India published the series 'Peoples of India' describing the Indian society, culture and traditions. Some of the main conclusions of the survey is as under:

(i) Ours is one of the most diverse countries in the World. There are 4,635 ethnic communities in our country, each with its own hereditary features, language, dress, religious, customs, food habits, family relations and marriage rites. The basic lifestyles of these communities comprise the mainstream of the lives of our country's people;

(ii) The people of India have emerged from miscegenation of several races like Proto-Australoid, Paleo-Mediterranean, Caucasoid, Negroid and Mongoloid. Various nationalities involved are: Aryans, Persians, Greek, Huns, Arabs, Turks, Africans, Mongolians and Europeans. There has been so much intermingling that nowhere can one find a 'pure' specimen of any nationality;

(iii) It has been observed that difference in colour, height and build and other hereditary features are much more pronounced between members of the same community, as compared to those between members of different community;

(iv) One of the biggest sources of our diversity and unity is language. There are about 325 languages and 25 scripts in India. These have emerged from different language families like the Indo-Aryan, Tibeto-Burmese, Indo-European, Dravidian, Austro-Asiatic, And amanese and Indo-Iranian. Over 65% of our people are bilingual and practically all tribal people are trilingual. The use of two languages on a vide has led to better contact among different peoples, enhancing social and cultural intercourse;

(v) The people of India have not lived in isolation from each other. They had a close connection with their natural and social environs, and for centuries they have participated in each other's lives and struggles. It is this historical mutuality and collective struggles that have moulded the shape of our diversity as well as our unity.

2. Jawahar Lal Nehru wrote in his 'Discovery of India' -- Despite racial, religious and linguistic differences or diversity, the life of Indian people is connected to a single cultural spirit. The whole population of North India despite some limitations arising from differences in caste or religion, believes in similar moral values and social customs, speaks the same language, has a common behavioural nature which has been nurtured by a long history of their collective labour, suffering and common struggle for a better life, their drudgery in the source of their culture and strength.

3. Keeping in mind these realities of this land, we have to examine what is religion and temple to an Indian. India is a land of many religions like Hinduism, Jainism, Buddhism, Shaivism, Vishnavism, Sikhism, Islam, Zoroastrianism, Christianity and several cults. History of man reveals one truth that is all religions at their commencement were born to address various issues affecting the very foundation of Human existence and progress. Every religion had at the commencement a noble object to emancipate the human suffering and religion became the voice of voiceless masses. The history of religion, in one sense is also a reflection of the history of human evolution. At times religion by becoming undemocratic and at times by mixing with politics caused harm to the human society. Therefore one should not forget the positive and negative role played by religion in human history.

4. Temples are religious centres and are places of public worship. Every town and every village has its own Gods and Goddesses. Every temple had been a centre of artistic activity as the temple itself was a beautiful building decorated with sculptures and paintings. It was provided with an Orchestra and dancing girls or devadas is for the Ranga bhoga of the temple. It was the place where village panchayats were held. It sheltered travellers and students. It provided facilities for the education of adults by arranging the recitation of puranas and other such programmes. It maintained stud bulls (Basava) and helped animal husbandry. It provided warehouse for the excess grain of every village. A temple was a centre where science and literature was patronized. A temple was a great employer as it required administrators, priests, dancing girls, players of music, sweepers, cooks, flower garden, keepers, garland makers, storekeepers, masons, sculptors etc. It was a centre of social and cultural activity. The annual fairs and festivals not only provided gay moments to the people by their pomp and pageant, but also served as occasions for the marketing of various goods as merchants from far and near flocked there with their wares. Special livestock markets were also organised on such occasions. Even to this day the temples continue to dominate people's life whether in villages or in cities. It is unfortunate to note that day by day temples are being commercialised and politicalised.

5. Gifts for religion and temples have always been considered in India as the most sacred duty of man. Almost every Indian makes some kind of gift, small or great during his lifetime in the hope of securing a better state of existence in the life to come. This devotion to religion impels even the half starving Indians of today to make the beggar at his door a partner in his scanty means earned with hard toil. Under the Hindu system, Religious and Charitable Acts fall under two heads by name Ishta and Purtha. Ishta acts, are gifts offered to priests. Purtha acts are, construction of wells, tanks, Dharma salas, Rest houses, planting of trees etc. The most sacred of purtha acts are construction of temples for gods, offerings to God and creating endowments for due performance of their daily rites and ceremonies. In this way landed properties, buildings, cattle, gold jewels, cash, grain were either endowed or gifted to temples.

6. The richer the endowment, the greater the temptation to swallow the same. When it comes to accounting for its income, the persons in the temple started claiming exclusive rights of ownership not only over the income but over the idol, the deity of the temple too. Such instances justified the intervention of local Government. The proper maintenance of the temples and the administration of their endowments have always been considered in India as one of the primary function of the State. Under Hindu Rule, the Rajas by issuing farmans and through their officers exercised control over the religious institutions and endowments. Except during periods when religious intolerance was at its worst, the Mohammadan Rulers of India considered it expedient to make some provisions against the deterioration or decay of Hindu temples and in some instances even added to their endowments. Under British Rule, for many years there were no enactment or regulations concerning the management of Hindu temples. But, the religious institutions, with large revenues were often dealt with by the trustees without due sense of responsibility and that mismanagement prevailed without check or restraint and misappropriation of temple funds became a thing of frequent occurrence. The evil grew from bad to worse. This necessitated enactment of several Acts governing the management of temples and its endowments. In 1947 when India became independent the Central Acts, like, (i) The Religious Endowments Act, 1863; (ii) The Charitable Endowments Act, 1890; (iii) The Charitable and Religious Trusts Act, 1920, were in force in different regions of Karnataka. In addition to these Central Acts there were provincial Acts, governing different parts of Karnataka State like.--

(i) The Bombay Public Trusts Act, 1950;

(ii) The Madras Hindu Religious and Charitable Endowments Act, 1951;

(iii) The Coorg Temple Funds Management Regulations, 1892;

(iv) The Mysore Religious and Charitable Institutions Act, 1927;

(v) The Hyderabad Endowments Regulations, 1349-F;

(vi) The Coorg Temple Funds Management Act, 1956;

(vii) The Renuka Yellamma Devasthana (Administration) Act, 1974.

7. Even after the States Reorganisation Act, 1956 (37 of 1956) came into force the above mentioned enactments were in force in different parts of State of Karnataka. This situation led to certain legal complications and inequalities in the matter of religious institution. In this connection the Supreme Court of India in Shri Swamiji of Shri Admar Mutt v. The Commissioner, Hindu Religious and Charitable Endowments Department and Ors., : [1980]1SCR368 observed as under:

'31. But that is how the matter stands today. Twenty-three years have gone by since the States Reorganisation Act was passed by unhappily, no serious effort has been made by the State Legislature to introduce any legislation -- apart from two abortive attempts in 1963 and 1977 -- to remove the inequality between the temples and Mutts situated in the South Kanara District and those situated in other areas of Karnataka. Inequality is so clearly writ large on the face of the impugned statute in its application to the District of South Kanara only, that it is perilously near the periphery of unconstitutionality. We have restrained ourselves from declaring the law as inapplicable to the District of South Kanara from today but we would like to make it clear that if the Karnataka Legislature does not act promptly and remove the inequality arising out of the application of the Madras Act of 1951 to the District of South Kanara only, the Act will have to suffer a serious and successful challenge in the not distant future. We do hope that the Government of Karnataka will act promptly and move an appropriate legislation, say within a year or so. A comprehensive legislation which will apply to all temples and Mutts in Karnataka, which are equally situated in the context of the levy of fee, may perhaps afford a satisfactory solution to the problem. This, however, is a tentative view-point because we have. not investigated whether the Madras Act of 1951, particularly Section 76(1) thereof, is a piece of hostile legislation of the kind that would involve the violation of Article 14. Facts in regard there to may have to be explored, if and when occasion arises'.

(emphasis supplied)

8. Seventeen years after the above observation of Supreme Court the Government of Karnataka enacted the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 by Act 33 of 2001 and the Karnataka Hindu Religious Institutions and Charitable Endowments Rules, 2002 which came into force with effect from 1-5-2003 (for short, 'the Act'). The validity of this Act and the Rules made therein are called in question in these writ petitions and also to quash the notification issued by the respondents under Section 23 of the Act. In the alternative it is prayed to declare certain provisions in the impugned Act, as unconstitutional.

9. It is necessary to refer briefly the salient provisions of the impugned Act. The preamble of the Act, states that to make better provisions for the management and administration of the Hindu Religious Institutions and Charitable Endowments in the State of Karnataka a comprehensive Act is enacted by the Karnataka State Legislature. There are XI Chapters and 79 Sections in the Act. Section 1 states that the Act is extended to the entire State of Karnataka and to the Hindu Religious Institutions and Charitable Endowments notified by the State Government. The Act shall not apply to Mutt or a temple attached thereto and the institutions run or managed by Hindu Religious Denominations. For the purpose of application of Act, the word 'Hindu' does not include a Buddhist, Jain or Sikh as defined under Section 2(16) of the Act.

10. Sections 3 to 8 in Chapter II of the Act deals with the appointment and eligibility of authorities like Commissioner, Deputy Commissioners, Assistant Commissioners and Subordinate Officers. Section 8 of the Act, deals with delegation of power by State Government to the Commissioner. Sections 9 to 16 in Chapter III of the Act, deals with appointment of Archakas and Temple servants, their qualifications, emoluments, service condition, misconduct, penalty, termination, retirement etc.

11. Sections 17 to 19 in Chapter IV of the Act, deals with creation of common pool fund. The notified institution under the Act has to contribute five per cent of its gross annul income after permissible deductions. The Commissioner is empowered to administer the common pool fund for the purposes of aiding poor and needy institutions, propagation of religious tenets, establishment of schools for training the Archakas and to study the ancient scripts. To establish and maintenance of University or College the object of which is to study Hindu Religion, Philosophy or Sastras or Hindu Temple Architecture. Maintenance of Orphanages of Hindu Children etc.

12. Sections 20 to 22 in Chapter V of the Act, deals with the constitution of Advisory Committee, consisting of Minister in-charge of Endowments, the Commissioner and non-official members not exceeding nine nominated by the State Government. Its function is to tender advise in case of disputes relating to observance of religious practices, adoption of smaller institution by larger institutions etc. The function of advisory committee is only to tender advise and the same is not binding in nature. A notified institution may seek the advise of advisory committee or may not. Sections 23 to 34 in Chapter VI of the Act, deals with the power of the State Government to notify the institutions to be brought under the umbrella of the Act. Constitution of the Committee of Management to each institution, its term, its composition and its functions. The power to dissolve a committee under certain circumstances, to appoint administrator in place of committee of management dissolved or suspended etc..

13. Sections 35 to 41 in Chapter VII of the Act, deals with Budget, and audited accounting. It specifies that this Chapter is applicable to the notified institutions whose gross annual income exceeds twenty-five thousand rupees. A notified institution whose annual income is more than Rs. 25,000/- shall file in the prescribed form a budget showing the probable receipts and disbursements before the Assistant Commissioner. Every budget shall make provision for the due pursuance of the object of the institution or endowment, the due discharge of liabilities, the arrangement made for securing the health, safety or convenience of the pilgrims, the construction, repair and maintenance of institution etc.. Provision to be made for contribution to common pool fund and for payment of audit fee. It specifies the maintenance of accounts and auditing of the same etc.

14. Sections 42 to 48 in Chapter VIII of the Act deals with the power of State Government to declare and to subject any Hindu Religious Institution when it is being mismanaged to the regulation of this Chapter. This is to be done by issuing a show-cause notice to such institution and after holding an enquiry. Once such declaration is_ issued, the management or such institution vest in the State Government and the Commissioner is empowered to appoint an Executive Officer. Sections 49 to 62 in Chapter IX of the Act, deals with the powers and functions of the Commissioner and other officers under the Act. The Commissioner shall have the power to issue directions to the institutions to ensure the proper administration and to account the income. The Commissioner or Deputy Commissioner or Assistant Commissioner either suo motu or on receipt of complaint are empowered to institute and to hold enquiries with regard to the institutions generally or any particular purpose. To take action against persons and to protect the property of institution from being wasted, damaged, alienated, removed or disposed off. The Commissioner has the power to suspend the remove or dismiss a Chairman, Manager, or any other person responsible for managing the affairs of institutions under certain circumstance and after following the procedure.

15. Sections 63 to 68 in Chapter X of the Act, deals with the Revisional Powers of the Commissioner, and the procedure to hold enquiries. Sections 69 to 79 in the Miscellaneous Chapter XI of the Act, deals with removal of discrimination in the distribution of Prasada or Theertha. Immunity from prosecution against the State Government or any authority or officer in respect of anything done in good faith under this Act. The power to make Rules to carry out the provisions of the Act. Several earlier Central Acts are declared as not applicable and the Acts which were in operation in different parts of Karnataka State are repealed.

16. Sri A.G. Holla, Sri S.P. Shankar, Sri Udaya Holla, Sri M.R. Achar, learned Senior Counsels and Sri Padubidri Raghavendra Rao, Sri Krishna Bhat, Sri Gopala Hegde, Sri P.M. Jalisatgi, Sri Paneendra, Sri Suman, Sri KM. Natarai, Sri Subash B. Adi, Sri Chandrakanth Ariga, Sri Keshava Bhat and Sri Malla Reddy, learned Counsels for the petitioners addressed the arguments and other Counsels adopted the same. The arguments on the side of petitioners in brief are that the impugned Act, is in violation of Articles 14, 19, 25 and 26 of the Constitution of India. It is contended that under Article 26 every religious denomination shall have the right to establish, maintain manage religious institution. But under the impugned Act, this right is taken away. Supreme Court of India in Shri Admar Mutt's case directed the State Government to enact a comprehensive legislation for temples and Mutts in Karnataka. But under the impugned Act in Section 1 of the Mutts, temples attached to Mutts and other religious institution run by Hindu Religious denomination are excluded from the application of the Act and as such the impugned Act is contrary to the directions of the Supreme Court in Shri Admar Mutt's case.

17. The secular activity of any temple, Mutt or any other religious or charitable institution are same. Under the impugned Act, certain religious institutions are excluded and therefore the impugned Act is, arbitrary, discriminatory and violative of Article 14 of the Constitution of India and seems to be for extraneous considerations. It is contended that by legislating the impugned Act, the State is dividing the Hindu Community. The definition of Hindu under the impugned Act in Section 2(16) does not include a Buddhist, Jain or Sikh. Under Article 25 Explanation II of the Constitution says Hindu shall be construed as including Sikh, Jaina or Budhist. Therefore, it is contended that the impugned Act is violative of Article 25 of the Constitution.

18. It is contended that in Sections 9 to 16 of the impugned Act, the power to appoint, suspend and dismiss an Archak is specified. In further prescribes, qualification, age limit for appointment and retirement etc., and the same is not practicable. The Archakas are treated as public servants for the above mentioned purposes but they are not provided with monetary and other benefits that are enjoyed by a public or civil servant. Without abolishing the hereditary rights of Archakas the impugned Act, is arbitrary and illegal. It is contended that under Section 17 of the Act, a common pool fund is created and it is made compulsory that the notified institution shall contribute five per cent of their gross annual income and the same is tax and not fee. The State Government cannot impose tax. Alternatively, it is contended that if the contribution is taken as fee then there is no correlation to the fee contributed to the common pool fund and the services rendered to the notified institutions. Hence the creation of common pool fund and contribution to it is opposed to doctrine of quid pro quo.

19. It is further contended that under Section 20 of the Act, an Advisory Committee is constituted. One of the functions of this Advisory Committee is to tender advise to the Committee of management of a temple on the disputes relating to observance of religious practices and therefore the same is violative of Article 25 of the Constitution. It is contended that under Section 23 of the Act, the petitioners' institutions are notified without hearing them and in violation of principles of natural justice. Some of the petitioners contend that the provisions of the Act, are not applicable to them, but then the Government had notified them under Section 23. Few petitioners contend that under the previous enactments their temples are not included but arbitrarily the Government notified their temples under the impugned notifications. Under Section 25 of the Act, the Government has the power to constitute the Committee of Management to a temple and the same is undemocratic and arbitrary. Further, it is contended that these committees are unworkable and the qualification fixed for a member to be on the committee of management are vague and unreasonable. It is contended that without abolishing the Hereditary trusteeship the Government cannot appoint the committee of management. Some of the petitioners-temples are governed according to the scheme framed under the Madras Hindu Religious and Charitable Endowments Act, 1951 and under the present Act no provision is made to frame or modify the existing schemes and the Act is unworkable and it is vague.

20. Petitioner's next attack is in respect of auditing of accounts of notified institutions by the State Accounts Department under Section 37 of the Act. Petitioners contend that they are not against the auditing of accounts, but they are opposed to audit by the State Accounts Department. It is contended that this imposition of State Accounts Department on the petitioners will affect their right to get the accounts audited at the hands of an auditor of their choice. It is contended that by imposing State Accounts Department the petitioners are forced to pay the audit fee as prescribed under Rule 36 of the Rules on percentage basis of annual income. Again this audit fee fixed under the Rules has no co-relation to the services rendered and therefore the same is liable to be quashed.

21. It is urged that under Sections 49 to 62 in Chapter IX of the Act, unguided and absolute powers are vested with the Commissioner. The power so vested in the hands of Commissioner will result in arbitrariness and the same is opposed to the object of the Act. It is contended that under Section 68 of the Act, the jurisdiction of Civil Court to decide or deal with any question arising under the Act is taken away. But proper machinery is not provided under the Act to deal with the disputes that arise under the Act.

22. Per contra, Sri B.T. Parthasarathy, learned Advocate General for respondents sought to sustain the validity of the Act. He submits that secularism as enshrined in the Constitution is not anti-God or anti-religion while the State has no official religion. The State guarantees freedom to profess, practice and propagation of religion to every citizen, subject to certain conditions like public order, morality and health. He contends that the administration of Religious Institutions and Charitable Endowment is a secular activity and therefore the Legislature is competent to enact law relating to the administration and governance of a temple. It is contended the State do not directly involve in the administration, but only supervises and regulates. The State has taken care of staying away from any sort of interference in religious practices of the temple. Section 58 of the Act, specifies that the authorities exercising powers or performing functions under the Act shall not interfere with religious practices of the notified institutions.

23. The Mutt and the temple attached to it and the denominational temples are a class by themselves and their exclusion from the applicability of the Act cannot be assailed as being discriminatory. The State with an intention to safeguard the rich tradition of temples, the qualification and the age limit are prescribed for appointment of Archakas. An humble attempt is made to provide emoluments and other benefits to Archakas when they are getting nothing at present. Provision is also made to increase the emoluments from time to time depending upon the circumstances. An Archak of a temple shall be ex officio member of the committee of management.

24. It is contended that under the Act, a common pool fund is created and the levy of 5% of the income as contribution by the temples having income is constitutional. The object of creating common pool fund is to aid poor and needy Hindu Religious Institutions and to promote religious and charitable purposes. The audit of accounts of institutions has been made compulsory in the larger public interest. It is contended that temples which were already governed under the previous repealed enactments have been now included in the list of notified temples under Section 23 of the new Act. Therefore, the question of hearing the petitioners do not arise and the principles of natural justice have no application to a legislative action. Under Section 50 of the Act, 1997 the authorities under the Act are having the power to hold enquiry with regard to the institutions either generally or for any particular purpose. If any notified institution is aggrieved of its inclusion in the notification, a machinery is provided under the Act for redressal of such a grievance.

25. The auditing of accounts of institutions has been made compulsory in the larger public interest. There should be check and control of finance so that the public money is not wasted or diverted or misappropriated. The levy of a graded audit fee is fixed considering the service rendered. Though the hereditary rights of trusteeship and Archakas are not abolished, the State is entitled to regulate these rights. It is contended that the measure of regulation of notified institutions in the larger public interest is both desirable and permissible.

26. Heard the arguments on both the sides and perused the entire writ papers.

27. In the course of arguments both sides invited any attention to several provisions in the Act and Rules and to a number of decisions. I think it is sufficient if reference is made to the relevant provisions and decisions necessary.

28. At this stage itself it is important to note the scope of Review power of this Court under Article 226 of our Constitution. In our constitutional system the spheres of legislative powers are distributed between the Central Legislature and State Legislatures. A machinery is provided through Courts vesting with the powers of judicial review to determine the validity of the Acts passed by the Legislatures. The power of judicial review is to decide whether in making the laws the Central or State Legislatures have acted within the four corners of the legislative lists and such laws are made in conformity with and not in violation of the other provisions of the Constitution. As long as some fundamental rights exist and are a part of the Constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by those rights are not contravened. Dr. Ambedkar speaking in the Constituent Assembly on the question of right of citizens to move the Supreme Court for enforcement of the Fundamental Rights (Article 32) observed:

'If I was asked to name any particular Article in this Constitution as the most important, an Article without which this Constitution would be a nullity. I could not refer to any other Article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realised its importance'.

29. Judicial review has thus become an integral part of our constitutional system. If the law enacted by the Legislature are found to be violative of any Article of the Constitution, the Supreme Court and High Courts are empowered to strike down the said laws. In exercising the power of judicial review the Courts do not and cannot go into the question of wisdom behind a legislative measure. It is for the Legislature to decide as to what laws they should enact. The task of Courts is to interpret the laws and to adjudicate about their validity. The Supreme Court of India developed common law jurisprudence and declared the legislative Act, as void when it is found that the legislation against right and reason, or repugnant, or impossible to be performed.

30. Keeping in my mind the power of judicial review and its limitation it is required to examine the legislative competency in enacting the impugned Act. In Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, : [1964]1SCR561 P.B. Gajendragadkar, J., speaking for the Bench ruled that when the validity of any legislative enactment is impugned on the ground that its material provisions contravene one or the other of the fundamental rights guaranteed by the Constitution, the primary rule of construction is that if the impugned provisions of the Statute are reasonably capable of construction which does not involve the infringement of any fundamental rights, that construction must be preferred though it may reasonably be possible to adopt another construction which leads to the infringement of the said fundamental rights.

31. In D.S. Nakara and Ors. v. Union of India, : (1983)ILLJ104SC , D.A. Desai, J., speaking for the Bench observed that the preamble of our Constitution directs the centres of power legislative, executive and judiciary to strive to set up a socialist society which the preamble of our Constitution directs. From a wholly feudal exploited slave society to a vibrant, throbbing socialist welfare society is a long march but during this journey to the fulfillment of goal every State action (illegible) taken must be direct and must be so interpreted as to take the society one step towards the goal.

32. In view the above declaration of Apex Court it is required to examine whether the impugned Act is a step forward to achieve the constitutional goal. The State Legislature is competent to enact a law on the subject of religion and charitable endowments which is covered under Entry 28, List III of Concurrent List of Seventh Schedule of our Constitution. It is not in dispute that after reorganisation of States in 1956 as many as ten enactments were governing the field in different parts of the Karnataka State. The Supreme Court in Shri Admar Mutt's case warned the Karnataka State to legislate a comprehensive legislation governing the field of temples and mutts. Now in the preamble of present impugned Act, it is stated that to make better provision for the management and administration of the Hindu Religious Institutions and Charitable Endowments in. the State of Karnataka the present Act is legislated. The present impugned Act, is a comprehensive legislation in place of previous ten enactments governing the field in the State of Karnataka. Therefore, the impugned Act is a step forward in the present situation in the State of Karnataka in the field of Hindu Religious and Charitable Endowments.

33. This ancient country is inhabited by people practicing diverse religions castes, sub-castes, speaking diverse languages with diverse scripts and having diverse cultural and sub-cultural heritage. Each of them have made their contribution in their own way to this great India. These people united fought against the colonial rule in the long drawn liberation struggle of this country. It was the Philosophy of secularism which guided our freedom movement. Though it is fractured, the independence we won little more than half a century back from prolonged colonial bondage is with aim to march forward to build a new India. Our elders and visionaries had the forethought and guts to incorporate the values of a secular State in our Constitution. The hallmark of our Constitutional mandate is to build a society to attain justice and erase inequities flowing from religious, gender, caste and privileges flowing from muscle and money power. It is in this background Articles 25 to 30 are embodied in the Indian Constitution. Articles 25 and 26 of the Constitution relevant for our purpose reads as under:

'25. Freedom of conscience and free profession, practice and propagation of religion.--(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or present the State from making any law.--

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu Religious Institutions of a public character to all classes and sections of Hindus.

Explanation I.--The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

Explanation II.--In Sub-clause (b) of Clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

26. Freedom to manage religious affairs.--Subject to public order, morality and health, very religious denomination or any section thereof shall have the right.--

(a) to establish and maintain institutions for religious and charitable purposes;

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with law'.

34. Article 25(1) of the Constitution guarantees the freedom of conscience and the right freely to profess, practice and propagate religion subject to public order, morality and health. That under this article there is no undeterred or absolute right to propagate religion. The State in the interest of morality, public order and health can enact laws and put restrictions on the right to religion. Article 25(2) declares that the State can make laws regulating or restricting an economic, financial, political or other secular activity which may be associated with religious practice. Article 26 confers the right to establish institution for religious or charitable purpose and to maintain its own affairs in the matters of religion, on every religious denomination, subject to public order, morality and health.

35. The Supreme Court in Sri Adi Visheshwara of Kashi Vishwanath Temple and Ors. v. State of Uttar Pradesh and Ors., : [1997]2SCR1086 held that:

'It is well-settled law that secularism is the basic features of the Constitution. The Constitution seeks to establish an egalitarian social order in which any discrimination on grounds of religion, race, caste, sect or sex alone is violative of equality enshrined in Articles 14, 15 and 16 etc. of the Constitution. All religions are equally entitled to constitutional protection under Articles 25 and 26.

The religious freedom guaranteed by Articles 25 and 26, therefore, is intended to be a guide to a community life and ordain every religion to act according to its cultural and social demands to establish an egalitarian social order. Articles 25 and 26, therefore, strike a balance between the rigidity of right to religious belief and faith and their intrinsic restrictions in matters of religion, religious beliefs and religious practices and guaranteed freedom of conscience to commune with his Cosmos/creator and realise his spiritual self.

It is not every aspect of the religion that requires protection of Articles 25 and 26 nor has the Constitution provided that every religious activity would not be interfered with. Every mundane and human activity is not intended to be protected under the Constitution in the garb of religion. Articles 25 and 26 must be viewed with pragmatism. By the very nature of things it would be extremely difficult, if not impossible, to define the expression 'religion' or 'matter of religion' or 'religious beliefs or practice'. Right to religion guaranteed by Articles 25 and 26 is not absolute or unfettered right to propagate religion which is subject to legislation by the State limiting or regulating every non-religious activity. The right to observe and practise rituals and right to manage in matters of religion are protected under these articles. But right to manage the temple or endowment is not integral to religion or religious practice or religion as such which is amenable to statutory control. These secular activities are subject to State regulation but the religion and religious practices which are integral part of religion are protected. It is well-settled law that administration, management and governance of the religious institution or endowment are secular activities and the State could regulate them by appropriate legislation'.

36. There were as many as ten different statutes governing the various' kinds of religious and charitable institutions in the State of Karnataka. This situation resulted in disparity in the application of the law to the institutions differently for similarly situated institutions. By repealing all the earlier enactments and in its place a comprehensive Act, is brought in with an object to make better provisions for the management and administration of Hindu Religious Institutions and Charitable Endowments in the State of Karnataka. In Section 58 of the impugned Act the authorities under the Act, are restrained from interfering with religious customs, usages, ceremonies and practices of a notified institution. Under the impugned Act, provisions are made relating to age, qualification and service conditions of Archakas, creation of common pool fund, Budget, Accounts and Audit of notified institutions, constitution of the committee of management etc. Therefore, the provisions under the impugned Act are all relating to economic and secular activities and not violative of Articles 25 and 26 of the Constitution.

37. The petitioners contend that the exclusion of a Mutt or a temple attached thereto and Hindu Religious Institutions run by Hindu Religious denomination from the application of the impugned Act is violative of Article 14 of the Constitution. The secular and economic activities of all the temples and Mutts are same and as such the exclusion of Mutts and Temples run by Hindu Religious denomination is discriminative and opposed to dictum of the Apex Court in Shri Admar Mutt's case. The Supreme Court in Shri Admar Mutt's case observed that a comprehensive legislation which will apply to all temples and Mutts in Karnataka, which are equally situated in the context of the levy of fee, may perhaps afford a satisfactory solution to the problems. The Supreme Court further observed that this is a tentative view point. The observation of Apex Court in Shri Admar Mutt's case is not a law declared nor a binding precedent on the State of Karnataka. Therefore, there is no substance and merit in the contention of the petitioners that the impugned Act is in violation of the dictum of Apex Court in Shri Admar Mutt's case.

38. The Supreme Court in Pannalal Bansilal Patil and Ors. v. State of Andhra Pradesh and Anr., : [1996]1SCR603 observed that a uniform law though is highly desirable, enactment thereof in one go perhaps may be counter productive to unity and integrity of the nation. In a democracy governed by rule of law, gradual progressive change and order should be brought about. Making law or amendment to a law is a slow process and the legislative attempt to remedy where the need is felt most acute. It would, therefore, be inexpedient and incorrect to think that all laws have to be made uniformly applicable to all people in one go. The mischief or defect which is most acute can be remedied by process of law at stages.

39. The Hindu temples which were governed under the earlier statutes are now brought under a comprehensive enactment under the impugned Act. The Legislature in their wisdom excluded Mutts and temples attached thereto and the temples run by a Hindu religious denomination from the application of the impugned Act. It is for the Legislature to decide as to what type of institutions are to be included and what type of institutions are to be excluded from the application of the Act. This Court in exercise of the power of judicial review cannot go into the question of wisdom behind a legislative measure. As ruled by the Apex Court it is incorrect to think that all laws have to be made uniformly applicable to all types of Hindu Religious and Charitable Institutions in the State of Karnataka. By exclusion of certain institutions under the impugned Act, no disadvantage is caused to the petitioners. Therefore, the contention of the petitioners that the impugned Act is discriminatory and violative of Article 14 of the Constitution is unacceptable.

40. The petitioners contend that under the impugned Act, the hereditary rights of Archakas are not abolished. But under the impugned Act the hereditary rights of Archakas are taken away. It is further contended by fixing age limit, qualification and by regulating the service conditions etc., the Archakas are treated as public servants without providing the benefits enjoyed by a civil servant. The hereditary rights of Archakas came up for consideration before the Supreme Court on more than one occasion and on every occasion the Supreme Court rejected the theory of hereditary rights as they are protected under Articles 25 and 26 of the Constitution. The Supreme Court in His Holiness Srimad Perarulala Ethiraja Ramanuja Jeeyar Swami v. State of Tamil Nadu, : [1972]3SCR815 held that the Archaka has never been regarded as a spiritual head of any institution. He may be an accomplished person, well-versed in the Agamas and rituals necessary to be performed in a temple but he does not have the status of a spiritual head. The Dharmakarta or the Shebait makes the appointment and the Archaka is a servant of the temple. The trustee can enquire into the conduct of such a servant and dismiss him for misconduct. That being the position of an Archakas the act of his appointment by the trustee is essentially secular. The fact that in some temples the hereditary principle is followed in making the appointment will not make the successive appointments anything but secular. That after his appointment the Archaka performs worship is no ground for concluding that the appointment is either a religious practice or a matter of religion.

In A.S. Narayana Deekshitulu v. State of Andhra Pradesh and Ors., : [1996]3SCR543 Justice K. Ramaswamy, speaking for the Bench observed:

'There is a distinction between religious service and the person who performs the service; performance of the religious service according to the tenets, Agamas, customs and usages prevalent in the temple etc., is an integral part of the religious faith and belief and to that extent the Legislature cannot intervene to regulate it. But the service of the priest (Archaka) is a secular part. The right to perform religious service has appointment by the owner of the temple or king as its source. The Legislature is competent to enact the law taking away the hereditary right to succeed to an office in the temple and equally to the office of the priest (Archaka). The hereditary right as such is not integral part of the religious practice but a source to secure the services of a priest independent of it. Though performance of the ritual ceremonies is an integral part of the religion, the person who performs it or associates himself with performance of ritual ceremonies, is not. Therefore, when the hereditary rights to perform service in the temple is terminated by an owner for bad conduct, its abolition by sovereign Legislature is equally valid and legal. Regulation of his service conditions is sequenced to the abolition of hereditary right of succession of the office of an Archaka. Though an Archaka integrity associates himself with the performance of ceremonies rituals and daily pooja to the deity, he is an holder of the office of priest (Archaka) in the temple. So are the other office holders or employees of the temple. Though Archaka is normally a well-versed and accomplished person in the Agamas and rituals necessary to be performed in a temple, he is the holder of an office in the temple. He is subject to the disciplinary power of a trustee or an appropriate authority prescribed in the regulations or rules of the Act. He owes his existence to an order of appointment -- be it in writing or otherwise. He is subject to the discipline at par with other members of the establishment. Though after appointment, as an integral part of the daily rituals, he performs worship in accordance with the Agamas Sastras, it is no ground to hold that his appointment is either a religious practice or a matter of religion. It is not an essential part of religion or matter of religion or religious practice. Therefore, abolition of the hereditary rights to appointment under Section 34 is not violative of either Article 25(1) or 26(b) of the Constitution'.

41. The question of appointment of a person, who is not a Malayala Brahmin as Santhikaran or Poojari (priest) of a Shiva temple in a village in the State of Kerala came up for consideration before the Supreme Court in N. Adithayan v. Travancore Devaswom Board and Ors., : [2002]SUPP3SCR76 and observed as under:

'17. Where a temple has been constructed and consecrated as per Agamas, it has considered necessary to perform the daily rituals, poojas and recitations as required to maintain the sanctity of the idol and it is not that in respect of any and every temple any such uniform rigour of rituals can be sought to be enforced, de hors its origin, the manner of construction or method of consecration. No doubt only a qualified person well-versed and properly trained for the purpose alone can perform poojas in the temple since he has not only to enter into the sanctum sanctorum but also touch the idol installed therein. It therefore goes without saying that what is required and expected of one to perform the rituals and conduct poojas is to know the rituals to be performed and mantras, as necessary, to be recited for the particular deity and the method of worship ordained or fixed therefor. For example, to Saivite Temples or Vaishnavite Temples, only a person who learnt the necessary rites and mantras conducive to be performed and recited in the respective temples and appropriate to the worship of the particular deity could be engaged as an Archaka. If traditionally or conventionally, in any temple, all along a Brahman alone was conducting poojas or performing the job of Santhikaran, it may not be because a person other than the Brahman is prohibited from doing so because he is not a Brahman, but those others were not in a position and, as a matter of fact, were prohibited from learning, reciting or mastering Vedic literature, rites or performance of rituals and wearing sacred thread by getting initiated into the order and thereby acquire the right to perform homa and ritualistic forms of worship in public or private temples. Consequently, there is no justification to insist that a Brahman or Malayala Brahman in this case, alone can perform the rites and rituals in the temple, as part of the rights and freedom guaranteed under Article 25 of the Constitution and further claim that any deviation would tantamount to violation of any such guarantee under the constitution. There can be no claim based upon Article 26 so far as the temple under our consideration is concerned. Apart from this principle enunciated above, as long any one well-versed and properly trained and qualified to perform the pooja in a manner conducive and appropriate to the worship of the particular deity, is appointed as Santhikaran de hors his pedigree based on caste, no valid or legally justifiable grievance can be made in a Court of law. There has been no proper plea or sufficient proof also in this case of any specific custom or usage specially created by the founder of the Temple or those who have the exclusive right to administer the affairs -- religious or secular of the temple in question, leave alone the legality, propriety and validity of the same in the changed legal position brought about by the Constitution and the law enacted by Parliament. The Temple also does not belong to any denominational category with any specialised form of worship peculiar to such denomination or to its credit. For the said reason, it becomes, in a sense, even unnecessary to pronounce upon the invalidity of any such practice being violative of the constitutional mandate contained in Articles 14 to 17 and 21 of the Constitution of India'.

42. Keeping in view the observations and the law declared by the Apex Court in the decisions referred supra, it is required to examine the provisions under the impugned Act, relating to appointment of Archakas. Appointment of Archak is a secular activity and State can regulate the same. Though the hereditary rights of Archak is not abolished under the impugned Act, the State is not barred from enacting a law governing the appointment of Archak, his age limit, qualification, emoluments, termination etc. In order to keep and maintain the age old practice of performing poojas and the sanctity of the temple the power to appoint the Archakas is vested with Committee of management of that particular temple. The impugned Act prescribes the age, experience and qualification for appointment and retirement of Archakas. Care is also taken to regulate the service conditions and to remove unqualified Archakas. Though inadequate, the emoluments and other benefits are provided to Archakas at a time when they are not getting anything. An Archaka of the temple is made an ex officio member of the committee of management. Therefore, provisions under the impugned Act, relating to Archakas are secular activities and not violative of Articles 19, 25 and 26 of the Constitution.

43. The petitioners contend that under Section 17 of the impugned Act, they are compelled to pay 5% of their annual income to common pool fund is illegal, arbitrary and without any basis. This levy is not co-related to any service rendered and therefore this contribution of 5% is a tax and not fee and the state is not competent to levy tax. The common pool fund is created out of the contributions made by the notified institutions and the grants received from the State Government. The notified institutions after deducting donations made as contributions, any realisation by sale of jewels or movables or immovable properties and the amounts received for specified services, contribute 5% of the gross annual income to the common pool fund. Under Section 19 of the impugned Act, the Commissioner is empowered to administer the fund for the purposes of providing aid to the poor or needy institutions, any religious purposes connected with Hindu Religion, Establishment of Veda Patashala, Agama Patashala, Schools for training the Archakas and to study ancient scripts. Promotion of temple arts and architecture. Establishment of Orphanages and asylums etc.

44. The common pool fund will not go to general fund of the Government and the State will not spend for general purposes. Section 19 lays down the specific purposes for which the common pool fund is to be applied. The notified institutions under the impugned Act, who are having income are the contributors to the common pool fund. Every notified institution is entitled to seek aid from the common pool fund for the purposes specified under Section 19 of the impugned Act. The purposes for which the common pool fund is to be applied is laudable. The State Legislature is not competent to make laws levying tax on general public for the purpose of promoting a religion. The State has no religion of its own. But the State can make law regulating the economic and secular affairs of temples. Therefore, the State Legislature is competent to levy fee on the notified institution for their betterment and in larger public interest.

45. The traditional view about the doctrine of quid pro quo has undergone a radical change. The Supreme Court in Bombay Stock Exchange Brokers' Forum, Bombay and Ors. v. Securities and Exchange Board of India and Ors., : AIR2001SC1010 considered number of decisions on the subject of quid pro quo and held that it is not necessary to establish that those who pay the fee must receive direct or special benefit or advantage of the services rendered for which the fee is being paid. If the payer of fee receives general benefit from the authority levying the fee the element of service required for collecting fee is satisfied. It is further held that the requirement of quid pro quo need not be confined to contributors alone.

46. The notified institutions under the impugned Act having income are the contributors to the common pool fund. These contributors forms a class by themselves. Every contributor to the common pool fund is entitled to seek the aid of common pool fund for the purposes specified under Section 19 of the Act. The services to any member of the class of contributors co-relates the fee paid. The common pool fund will also be applied for the general purposes like propagation of religious tenets, establishment and maintenance of Veda Patashala, Agama Patashala and school for training Archakas, study of ancient scripts, development of temple architecture etc. The common pool fund spent for these purposes will enure to the general benefit of contributing institution. Therefore, there is no substance in the contention of petitioners that there is no co-relation to the services rendered and the contribution of 5% of gross annual income by the notified institutions to the common pool fund.

47. Hindu religion recognises the existence of life after death and it believes in the theory of karma according to which the good or bad deeds of a man produce corresponding results in the life to come. It is believed that he who makes Dhana (gift) will go to the heaven. Therefore, charity is regarded as part of religion. Devotees gift (dhana) landed properties, buildings, cattle, gold, jewels, cash, grain etc., to the temples. Gifts are also made or endowments are created for specified purposes and services. The persons in the temple who are in control of these gifts and endowments are expected to manage and administer for the purpose it is gifted or endowed and not for their own selfish motives. The person who makes gift or endowment is having a right to know as to how the gift made by him is utilised or spent. Since there exists no mechanism of its own in the temple relating to budgeting, accounting and auditing, the Legislature thought it fit to regulate the same by legislating Sections 35 to 41 under Chapter VII of the impugned Act.

48. Section 35 specifies that the notified institution having less than Rs. 25,000/- gross annual income are excluded from preparing annual budget and auditing of accounts. Section 36 specifies that the other notified institutions having the gross annual income of more than Rs. 25,000/- to prepare annual budget showing the probable receipts and disbursements and by making provision for salaries to the Archakas and temple servants discharge of liabilities to make arrangements for securing health, safety or convenience of pilgrims. Construction, repair, renovation and maintenance of temples, payment of audit fee, contribute to common pool fund etc. Section 37 specifies keeping of the accounts and audit of the same. Section 38 specifies that the audit report to encompass the financial audit, the management audit, detection and prevention of frauds and errors, purposeful suggestions etc. Section 39 of the Act specifies rectification of defects disclosed in audit report and on failure to order for surcharge. Section 40 of the Act empowers the Commissioner to take steps to rectify the defects relating to illegal expenditure, loss or waste of money or property of notified institutions. These regulatory measures are in the larger interest of notified institutions and to prevent the misuse or diversion or waste of temple money and they relate to economic activity of a notified institution which is permissible under Article 25 of the Constitution. Therefore, the contention of the petitioners that these provisions are arbitrary and unguided is unacceptable.

49. Rule 36 of the Rules specifies that the notified institutions whose gross annual income does not exceeds rupees twenty-five thousand may be audited and no audit fee shall be charged. The accounts of the institution whose annual income exceeds rupees twenty-five thousand and does not exceed rupees five lakhs shall be got audited through private auditor by paying audit fee of two per cent of the income. The accounts of the institutions whose annual income is rupees five lakhs and more shall be got audited by the State Accounts Department. The Rule further specifies that one per cent audit fee is payable on the income exceeding rupees five lakhs but below twenty-five lakhs, one and half per cent on the income exceeding twenty-five lakhs but below fifty lakhs and two per cent on the income above fifty lakhs. The contention of the petitioners that there is no co-relation to the service rendered and the audit fee levied is unacceptable. Similar question of enhancing audit fee on co-operative auditing came up for consideration before a Division Bench of this Court in the Banahatti Co-operative Mills Limited, Jamakhandi, Bagalkot District and Ors. v. State of Karnataka and Ors., : AIR2005Kant307 and held that element of quid pro quo is not always a sine qua non. Therefore, there is no merit in the contention that there is no co-relation to the services rendered and the audit fee levied.

50. The petitioners contend that under the impugned Act, the hereditary rights of trustees are not abolished. But by constituting a committee of management under Section 25 of the impugned Act, destroys the religious institutions and the hereditary rights of trustees. It is further contended that constitution, composition and the power of Committee of management are arbitrary, unguided and totally ignores the rights of devotees. The Supreme Court in A.S. Narayana's case, held that abolition of the hereditary rights is not violative of Article 25 or Article 26 of the Constitution. In Sri Adi Visheshwara of Kashi Vishwanath Temple's case, the Supreme Court held that right to manage the temple or endowment is not integral to religion or religious practice. It is well-settled law that administration, management and governance of the religious institution or endowments are secular activities and State could regulate them by appropriate legislation. The Supreme Court in Pannalal Bansilal Patil's case upheld the constitutional validity of Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, which regulated the Management of religious institutions and endowments and abolition of hereditary rights of trustees. The Supreme Court in M.P. Gopalakrishnan Nair and Anr. v. State of Kerala and Ors., AIR 2005 SC 3053 : 2005 AIR SCW 2292 held that although State cannot interfere with the freedom of a person to profess, practice and propagate his religion, the secular matters connected therewith can be subject-matter of control by the State. The management of the temple primarily is a secular act.

51. Keeping in view the law declared by the Supreme Court in the above referred decisions, we have to examine Sections 23 to 34 in Chapter VI of the impugned Act. The committee of management consists of nine members. Due importance is given to founder of institution or any member of his family by nominating him as Chairman of the committee of management, unless he is otherwise disqualified. Due representation is given in the committee of management to the Archak, women, devotees, donors, Scheduled Caste and Scheduled Tribe persons. A person who possess good conduct, reputation and command respect of the locality and having faith in God are eligible to be nominated as members of committee of management. The composition of committee of management is secular in character and its functioning is democratic in nature. In no way the constitution of the committee and its functioning will interfere with the religious practices of a notified institution. The Rules specifies in clear terms the powers and the functions of committee. Necessary control and check is also provided over the functioning of committee of management. Therefore, the contention of the petitioners that without abolishing the hereditary rights of trustees the constitution of committee of management is illegal, deserves to be rejected. When the State has the power to abolish the hereditary trusteeship, it cannot be contended that the State cannot regulate the management of a notified institution. The State under the impugned Act, by giving due importance to the founder of an institution regulated the management of a temple and therefore the same is not violative of Articles 19, 25 and 26 of the Constitution.

52. The petitioners contend that the Commissioner under the Act, is vested with absolute powers to issue directions to the Committee of management, to issue orders, injunctions, to suspend, to remove the Chairman, Manager or any other person connected with the management of a notified institution, to initiate enquiries etc. These powers given to Commissioner are unguided and uncanalised and the chances of abuse of power and arbitrary exercise of power are more. This apprehension of petitioners is unfounded and unacceptable. Section 3 empowers the State Government to appoint an officer of the cadre of Indian Administrative Service as the Commissioner. Under Sections 49 to 52 and 60 in Chapter IX of the impugned Act, and the relevant Rules therein are clear and specific guidelines are given to the Commissioner as to how he has to exercise his powers. Care is taken under Section 58 of the Act in directing the Commissioner and other authorities under the Act, while exercising the powers under the Act, not to interfere with the customs, usages, ceremonies and practices of a notified institution and further mandates them to observe the custom, usage and practice. Thereby the guidelines are inbuilt in the provisions themselves. The Commissioner who is a high ranking IAS Officer with wide administrative experience is expected and would act fairly, reasonably and in accordance with the provisions of the Act. If for any reason the Commissioner commits any excess or acts unreasonably the individual acts are liable to be questioned and dealt with appropriately in accordance with law. A provision of law cannot be held to be unreasonable or arbitrary merely because the authority vested with the power may abuse his authority.

53. The petitioners contend that their inclusion in the notification issued under Section 23 of the Act, is not preceded by any enquiry or by providing opportunity to make representation to the persons concerned and therefore the notification is arbitrary and opposed to principles of natural justice. Some of the petitioners contended that their inclusion in the notification is contrary to the guidelines contained in Section 23 of the Act. It is contended that some of the petitioners are not governed under the previous enactments and yet they are now included in the present notification under Section 23 of the Act and therefore the same is illegal. Under Section 78 of the Act, as many as previous ten enactments are either made inapplicable or repealed. Proviso to Section 78 of the Act, specifies that Sections 8 and 24 of the Mysore General Clauses Act, 1899 shall be applicable as if the said enactments are repealed and re-enacted by the present Act. Section 23 of the Act, specifies that Hindu Religious Institutions which are in sole charge of State Government, institutions which are getting grants or Tasdik allowance and the institutions which were already under the purview of repealed enactments are notified by revenue district wise in the present Act. The institutions which are governed under the previous enactments are not entitled to invoke the principles of natural justice, at the time of their inclusion in the notification under the present Act. The petitioners cannot insist on right to be heard before the making of legislation, whether primary or delegated, unless it is provided by statute itself. The petitioners who are governed under the repealed enactments are not adversely affected when they are included in the notification under the present Act. Section 50 of the Act, provides any person having interest in any notified institution to complain in writing to hold enquiry with regard to the institutions either generally or for any particular purpose. The respondents placed material to demonstrate that on complaints from some interested persons, the authorities under the Act, enquired into the matter and the Government denotified the institutions wrongly included in the notification issued under Section 23 of the Act. The petitioners who are aggrieved by their inclusion in the notifications may complain in writing under Section 50 of the Act, to hold an enquiry and on such complaints the authorities under the Act shall take suitable action in accordance with law. It is needless to say that the authorities under the Act while enquiring under Section 50 of the Act, have to follow the principles of natural justice and hold enquiry in accordance with law.

For the reasons stated above the following order.-

(i) All the writ petitions are hereby dismissed;

(ii) I hold that the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 and the Karnataka Hindu Religious Institutions and Charitable Endowments Rules, 2002, as valid and constitutional;

(iii) Liberty is reserved to the petitioners who are aggrieved by their inclusion in the notifications issued under Section 23 of the Act, to approach the authorities under the Act, if they are so advised. If such written complaints are filed, the authorities under the Act, shall hold enquiries in accordance with law by providing opportunity of hearing;

(iv) No order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //