THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY AND …judgmenthck.kar.nic.in/judgmentsdsp/bitstream/...1...

1

® IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 17TH

DAY OF NOVEMBER, 2015

PRESENT

THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY

AND

THE HONOURABLE MRS.JUSTICE S.SUJATHA

WRIT PETITION Nos.64805-64868 OF 2011 (GM-R/C)

CONNECTED WITH

WRIT PETITION Nos.65648-65680 OF 2011 (GM-R/C)

WRIT PETITION Nos.72157 OF 2012 AND 80796-80822 OF

2013 (GM-R/C)

WRIT PETITION No.65539 OF 2012 (GM-R/C)

IN W.P.Nos.64805-64868/2011

BETWEEN:

1. Shri Maha Ganapati Shankara

Devasthana, Sirsi,

U.K.District,

Represented by its Sole Trustee,

Shri Gajanan S Hegde.

2. Shri Bhuvararah Narasimh

Devasthan, Halashi,

2

Khanapur, Belgaum District,

Represented by its sole Trustee,

Shri V.V.Paripatyadar.

3. Shri Ganapati Devasthan,

College Road,

Belgaum,

Represented by its Trustee,

Shri Prabhakar B Chopade.

4. Shri Shanishawar Dev.

Patil Galli, Belgaum,

Represented by its Poojari and

Trustee, Shri Anand V Adhyapak.

5. Shri Paramarth Niketan Trust,

Shri Hari Mandir,

Angol Road, Belgaum,

Represented by its President,

Shri Chaitanya Kamalakar Mallapur.

6. Shri Parati Nagalingeshwar Trust,

Ankali Road, Chikkodi,

Belgaum District,

Represented by its Chairman,

Shri R.M.Musandi.

7. Shri Maruti Dev,

Karward, U.K.District,


Shri Dattatray R Swar.

8. Shri Marikamba Temple,

Sirsi, U.K.District,

Represented by its President.

3

Shri Rajaram M Hegde.

9. Shri Ramanath Devasthan,

Majali, Karwar, U.K.District.

Represented by its sole Trustee,

Shri Raveendra N Powar.

10. Shri Siddivinayak Dev,

Chandaguli, Yellapur,

U.K.District,


Shri Venkatraman S Bhat.

11. Shri Gramadevi Devasthan,

Yellapur, U.K.District,


Shri Rajaram B Bhat.

12. Shri Shivanath Dev Temple,

Mudgeri, Karwar,

U.K.District,

represented by its Trustee,

Shri Shiva V Naik.

13. Shri Ramaling Dev,

Idgundi, Yellapur,

U.K.District,

represented by its Trustee,

Shri Krishna T Gaonkar.

14. Shri Shanta Durga Devi Temple,

Ankola, U.K.District,


Shri Sheshagiri V Nadakarni.

4

15. Shri Aryadurga Devi Samsthan,



Shri Krishna D Shetty.

16. Shri Ravalanath Devasthan,

Bangarpet, Khanapur,

Belgaum District,


Shri B.R. Chitragar.

17. Shri Bankanatheshwara and

Kashivishweshvar Temples,

Bankikodla, Kumta,

U.K.District,

Represented by its Secretary,

Shri Atmaram S Balavalli.

18. Shri Seeta Rameshwar Dev,

Bankikodla, Kumata,

U.K.District,


Shri Shreedhar R Murudeshwar.

19. Shri Hanumanta Dev Temple,

Chandavar, Kumata,

U.K.District,


Shri A.R.Naik.

20. Shri Shantika Parameshwari Devasthana,

Nadumaskeri, Kumata,

U.K.District,

Represented by its Trustee.

Shri V.G.Gaonkar.

5

21. Shri Bobbar Dev,

Vannalli, Kumata,

U.K.District,


Shri Goli Annappa Naik.

22. Shri Durgadevi Devasthan,

Devikhan, Manki,

Honnavar, U.K.District,


Shri Narayan R Bhat.

23. Shri Laxminarayan Devasthan,

Durgakeri, Honnavar,

U.K.District,


Shri K.N.Hegdekar.

24. Shri Subramanya Dev,

Mugwa, Honnavar,

U.K.District,


Shri Subray T Hegde.

25. Shri Mariyamma @ Dandin Durga Devi,

Honnavar, U.K.District,


Shri A.N.Mesta.

26. Shri Ramanath Grama Purush Devasthan,

Hankon, Karwar,

U.K.District,


Shri Narayan R Naik.

6

27. Shri Durga Parameshwari Temple,

Alvekodi, Bhatkal,

U.K.District,


Shri Ramanath V Pai.

28. Shri Mallikarjun Devasthan,

Haliyal, U.K.District,


Shri Anil K. Bacholkar.

29. Shri Grama Devasthana,

Amdalli, Karwar,

U.K.District,


Shri Dinkar S Gaonkar.

30. Shri Shivanath Ravalanath Devasthan,

Baad, Karward, U.K.District,

Represented by its Trustee.

Shri S.V.Shirodkar.

31. Shri Shanta Durga Mahamaya @

Mahamaya Temple, Sadashivgada,

Karwar, U.K.District,

Represented by its Treasurer,

Shri Shivanand G Rane.

32. Shri Keshava Narayana Mahadev,

BhuDevi Trust Committee,

Chendiya, Karwar,

U.K.District,


Shri C.B.Naik.

7

33. Shri Mahadeva Vinayaka Devasthan,

Baad, Karwar,

U.K.District,


Shri Shivanand D Kadam.

34. Shri Vinayaka Dev,

Madguni, Kumata,

U.K.District,


Shri R.V.Bhat.

35. Shri Vishveshwar Dev Trust,

Antravalli, Kumata,

U.K.District,


Shri R.V.Bhat.

36. Shri Maruti Devasthan Trust,

Havagi, Haliyal,

U.K.District,


Shri Devaraj R Patil.

37. Shri Vinayak Dev,

Uppinapattan,

Kumata, U.K.District,


Shri V.G.Bhat.

38. Shri Sharadamba Devi Devasthan,

Rathabeedi, Honnavar,

U.K.District,


8

Shri R.J.Mesta.

39. Shri Ganapati Devasthan,

Rathabeedi, Honnavar,

U.K.District,


Shri Tulasidas S Shet.

40. Shri Ganapati Dev,

Hunasekoppa, Sirsi,

U.K.District,


Shri C.N.Hegde.

41. Shri Shanata Durga Devi,

Grama Devi, Bommayya Dev,

Veera Dev, Hichakada,



Shri Vithoba B Nayak.

Note: Trust not having its seal.

42. Shri Dharanath Dev,

Dhareshvar, Kumata,

U.K.District,


Shri Laxman M Prabhu.

43. Shri Shri Kshetra Sogal Jeernodhar Samiti,

Savadatti, Belgaum District,


Shri D.V.Sangannavar.

44. Shri Ramalingeshvara Devasthana,

Mavinamane, Yellapur,

9

U.K.District,


Shri Ganesh Hebbar.

45. Shri Shantika Parameshvari Devi,

Hegade, Kumata,

U.K.District,


Shri Nagesh B Shanbhag.

46. Shri Kumbheshvara Devasthan,

Kumata, U.K.District,


Shri V.G.Bhat.

47. Shri Shantika Parameshvari Devasthana,

Heravatta, Kumta, U.K.District,

Represented by its Presidetn.

Shri Shirinivas G Shanbhag.

48. Shri Venkatraman Devasthana,



Shri K.I.Naik.

49. Shri Maha Ganapati Devalaya,

Kondi, Siddapur,

U.K.District,

Represnted by its Trustee,

Shri L.G.Bhat.

50. Shri Gangadhareshvara Devalaya,

Kondi, Siddapur,

U.K.District,


10

Shri L.G.Bhat.

51. Shri Suryanarayana Devaru,

Bisalakoppa, Sirsi,

U.K.District,


Shri Subray S Bhat.

52. Shri Ganapati Dev,

Sannalli, Sirsi,

U.K.District,


Shri Shripad G Hegde.

53. Shri Satyanatheshvara Devasthana,

Bakkala, Sirsi,

U.K.District,


Shri Gajanan N Bhat.

54. Shri Laxmi Narasimha Devaru,

Benli-Onikeri, Sirsi,

U.K.District,


Shri Ganapati D Hegde.

55. Shri Madhukeshvara Devasthana,

Banavasi, Sirsi,

U.K.District,


Shri T.G. Nadiger.

56. Shri Laxmi Devi,

Basawan Galli,

Belgaum,

11


Smt. Pushpalata B Kammar.

57. Shri Gopalkrishna Dev,

Kulkod, Honnavar,

U.K.District,


Shri Tulasidas H Shet.

58. Havyaka Grama Samsthe,

Shri Durga Parameshvari,

Shri Sarpakarneshvar Dev,

Shri Chenna Keshava Dev,

Shri Mood Ganapati Dev,

Karki, Honnavar,

U.K.District,

Represented by its Sole Trustee,

Shri H.T.Bhagvat.

59. Shri Ishvara Dev,

Hasvante, Siddapur,

U.K.District,


Shri Holiyappa B Gouda.

60. Shri Kote Vinayaka Devasthana

Guddetota, Siddapur,

U.K.District,


Shri Ganapati H Bhat.

61. Shri Maha Ganapati Devasthana,

Itaguli, Sirsi,

U.K.District,


12

Shri Ramachandra R Hegde.

62. Shri Ganapati Devaru,

Shivalli Matha,

Sirsi, U.K.District,


Shri Venkataraman T Hegde.

63. Shri Laxminarayana Devasthana,

Kanabargi, Belgaum,


Shri Laxmikanth K Deshpande.

64. Shri Datta Sansthan,

Balekundri, Belgaum,

Represented by its Vice President,

Shri Pratap S Kulakarni.

… PETITIONERS

(By Shri Subramanya Jois, Senior Advocate for Shri A.P.Hegde

Janmane, Advocate)

AND:

1. State of Karnataka,

Represented by Chief Secretary,

Government of Karnataka,

Vidhana Soudha,

Bangalore.

2. Secretary to Government,

Department of Endowment and

Charitable Institutions,

M.S.Building,

Bangalore.

13

3. Commissioner,

Hindu Religious Institutions and

Charitable Endowments,

K.G.Road,

Bangalore.

4. Deputy Commissioner,

Uttara Kannada District,

Karwar.


Belgaum District,

Belgaum.

… RESPONDENTS

(By Shri M.N.Rao, Senior Advocate for Shri C.S.Patil,

Government Advocate)

These petitions are filed under Articles 226 and 227 of the

Constitution of India praying to declare that the Karnataka Hindu

Religious Institutions and Charitable Endowments (Amendment)

Act, 2011 (Karnataka Act No.27 of 2011) as discriminatory,

violative of constitutional rights, unconstitutional and strike down

the same in its entirety and etc;

IN W.P.Nos.65648-65680/2011

BETWEEN:

1. Shri Mhatobar Murudeshwar Temple,

Murudeshwar, Taluk Bhatkal,

U.K.District,

Represented by its Managing Trustee,

Shri R.N.Shetty.

14

2. Shree Hanumanth Devaru,

Nadig Galli, Sirsi,

U.K.District,


Shri L.G.Raykar.

3. Shree Venkatraman Dev.

Shree Kshetra Manjaguni,

Sirsi Taluk, U.K.District,

Represented by its Administrator,

Shri Shrinivas A Bhat.

4. Shree Ashwath Ganapati Devasthan,

Tadadi, Kumta Taluk,

U.K.District,


Shree Dattatraya S Chodankar.

5. Shree Shankar Narayan Dev.

Tenkankeri, Tal-Ankola,

U.K.District,


Shree Venkatraman G Naik.

6. Shree Kogre Gram Dev Trust,

Kogre, Tal-Ankola,

U.K.District,


Shree Govindray R Nayak.

7. Shree Maruti Devasthan Anesalu,

Bilagi, Tal-Siddapur,

U.K.District,


15

Shree Shantaram G Gouda.

8. Shree Sadashiv Dev Aghanashini,

Kumta Taluk, U.K.District,


Shree Narayan V Sabhahit.

9. Shree Jaganmata Durga Parameshwari Temple,

Kadavinakatta,

Bhatkal Taluk, U.K.District,


Shree Shankar V Acharya.

10. Shree Vanadevate and Chennakeshav

Devasthan, Yafadimath,

Tal-Sirsi, U.K.District,


Shree Dinesh G Hegde.

11. Shree Channapattan Hanumant Temple,

Rathabeedi, Bhatkal,

U.K.District,


Shree Surendra H Shanbhag.

12. Shree Rameshwar Dev.

Ramateertha, Tal-Honnavar,

U.K.District,


Shree Vithal S bhat.

13. Shree Siddhalingeshwar Devasthan

Siddheshwar,

Tal-Kumta, U.K.District,


16

Shree Subray M Bhat.

14. Shreee Channeshwar Ramalinga Dev,

Arabail, Tal-Yellapur,

U.K.District,


Shree Bhaskar S Bhat.

15. Shree Gopalkrishna Temple,

Analgar, Tal-Yellapur,

U.K.District,


Shree Gopalkrishna T Bhat.

16. Shree Kanchika Parameshwari Dev.

Baad, Gudengadi,

Tal-Kumta, U.K.District,


Shree Gajanan M Pavaskar.

17. Shree Laxmidevi and Shree Dyamavva,

Gokak, Belgaum Dsitrict,


Shree Ravindra R Maldinni.

18. Shree Kalmeshwar Devasthan,

Halur, Mundgod,

U.K.District,


Shree K.B.Kollanavar.

19. Shree Kalmeshwar,

Shree Maruti,

Shree Marevva and

Durgavva Temple Trust,

17


Shree M.C.Patil.

20. Shree Basavanna Devasthan,

Mundgod, U.K.District,


Shree K.b.Kollanavar.

21. Shree Mahaganapati Devasthan,

Hale Bazar, Ankola,

U.K.District,


Shree Ganapati Shetty.

22. Shree Shanta Durga Devi,

Gramadevi, Bommayya Dev and

Beera Dev. Hichakada,



Shree Vithoba B Naik.

23. Shree Bhatte Vinayak Devasthan

Hosamath, Tal-Siddapur,

U.K.District,


Shree L.V.Hegde.

24. Shree Shantika Parameshwari Devasthan,

Holegadde, Tal-Kumta,

U.K.District,


Shree Ram S bhat.

25. Shree Chavateppa Devasthan,

Guttigeri, Haliyal,

18

U.K.District,


Shree Sajjan Shivappa.

26. Shree Sooryanarayan Devasthan,

Mundaki, Tal-Haliyal,

U.K.District,


Shree Rudrappa D Dhepi.

27. Shree Temples Trust Committee,

Tergaon, Tal-Haliyal,

U.K.District,


Shree N.G.Patankar.

28. Shree Venkatraman Devasthan,



Shree Aravind Hallikeri.

29. Shree Maruti Devasthan,

Horagina Guttigeri,



Shree Maruti Patil.

30. Shree Bakambika Trust Committee,

Antrolli, Tal-Haliyal,

U.K.District,


Shree Subhas Bhovi.

31. Shree Pete Basaveshwara Devasthan,


19


Shree Shivanand Shettar.

32. Shree Durgadevi Trust Committee,

Kusur, Tal-Mundgod,

Represented by President,

Shree L.D.Ratod.

33. Shree Udachavva Devi,

Laxmi Devi Trust,

Gramadevi Galli,



Shree Mangesh R Deshapande.

…PETITIONERS


Janmane, Advocate)

AND:




Vidhana Soudha,

Bangalore.


Endowment Department,

M.S.Building,

Bangalore.

3. Commissioner,


20


K.G.Road,

Bangalore.


Uttara Kannada,

Karwar.


Belgaum District,

Belgaum.

… RESPONDENTS









IN W.P.Nos.72157/2012 AND 80796-80822/ 2013

BETWEEN:

1. Shri Durgadevi Temple Trust Committee,

Hirekerur, Haveri District.

Represented by its Chairman

Shri Jagdish B. Tambakad.

2. Shri Kokkeshwar Shambhuling Dev

Manki, Tal- Honaavar,

U.K. District,

21

Represented by its Managing Trustee

Nagraj Ganapati Naik.

3. Shri Channabasaveshwar Trust Committee,

Ulavi, Taluk: Joida, U.K. District,

Represented by its Vice Chairman

Sanjay B. Kittur.

4. Shri Laxmi Narasimha Adi Keshav Dev

Kaginelli, Taluk: Byadagi, Haveri District,

Represented by its President

Krishna G. Kulkarni.

5. Shri Bommayya Devaru

Tenkankeri, Taluk: Ankola,

U.K. District, Represented by its

Defacto Trustee Govindray V. Naik.

6. Shri Mahaganapati Devasthan,

Heepanalli, Taluk: Sirsi, U.K. District,


Manjunath M. Hegde.

7. Shri Shanta Durga Devi Temple Trust

Committee, Ankola, U.K. District,

Represented by its Managing Trustee

S.V. Nadkarni.

8. Shri Laxminarayan Dev,

Honnavar, U.K. District,


K.N. Hegdekar.

9. Shri Ganapat Dev,

Vaishya Vani Samaj,

Rathbeedi, Honaavar, U.K. District,

22

Represented by its Trustee

Tulsidas Shet.

10. Shri Chennakeshav Devaru,

Shigehalli, Taluk: Sirsi, U.K. District,


Shantaram V. Hegde.

11. Shri Vithal Rukumayi Devasthan,

Honnavar, Represented by its Trustee

Madhav Keshav Shet.

12. Shri Shambhuling Dev,

Ram Kshatriya Samithi,

Kokkeshwar, Manki, Taluk: Honnavar, U.K. District,


Hanumant Manjunath Naik.

13. Shri Shambhuling Dev,

Gunavanthe, Taluk: Honnavar, U.K. District,


Narayan Rama Pandit.

14. Shri Rameshwar Dev,

Ramatirtha, Taluk: Honnavar, U.K. District,


Vithal S. Bhat.

15. Shri Gopalkrishna Dev,

Kulkod, Taluk: Honnavar, U.K. District,

Reprseented by its Trustee

Tulsidas Hari Shet.

16. Shri Mallikarjun Devastan,

Haliyal, U.K. District,

23


A.K. Bacholkar.

17. Shri Durgadevi Devikan,

Manki, Taluk: Honnavar, U.K. District,


Narayan R. Bhat.

18. Shri Holevatar Dev,

Vandige, Taluk: Ankola, U.K. District,


Harish Devanna Naik.

19. Shri Bommayya Dev & Biligiri Amma Dev,

Bole-Hoskeri, Taluk: Ankola, U.K. District,


Chandrahas Krishna Naik.

20. Shri Bobrudev Development Committee,

Bobruwada, Taluk: Ankola, U.K. District,


Pratap Naik.

21. Shri Gramadev & Parivar Devaru,

Alageri, Taluk: Ankola, U.K. District,


Sheshagiri Mahadev Naik.

22. Shri Dattatraya Devasthan,

Avarsa, Tal-Ankola,

U.K.District,


Vasant Dattaram Shet.

23. Shri Ramanath Dev.

24

Asnoti, Tal-Karwar,

U.K.District,


Prabhakar Salunke.

24. Shri Kshetra Sogala Jeernodhara

Samithi, Sogala,

Tal-Savadatti,

Belgaum District,


D.V.Sangannavar.

25. Shri Laxmi Narasimha Devaru,

Onikeri, Tal-Sirsi,

U.K.District,


Ganapati Dattatraya Hegde.

26. Shri Shantika Parameshwari and

Parivar Devaru,

Aggargon, Tal-Honnavar,

U.K.District,


Dayanand Narayan Nayak.

27. Shri Choleshwar Devasthan,

Nehru Road, Bhatkal,

U.K.District,

Represented by its Vahivatdar,

Prakash R Adiga.

28. Shri Kasmudi Hanumant Temple,

Chouthani, Bhatkal,

U.K.District,

Represented by its Vahivatdar,

25

Prakash R Adiga.

…PETITIONERS


Janmane, Advocate)

AND:




Vidhana Soudha,

Bangalore.



M.S.Building,

Bangalore.

3. Commissioner,



K.G.Road,

Bangalore.


Uttara Kannada,

Karwar.


Belgaum District,

Belgaum.

… RESPONDENTS

26









IN W.P.No.65539/2012

BETWEEN:

Shri Mahakali (Mayakka) Devi Trust,

Chinchali, Tal-Raybag,

Belgaum District,


Jeetendra Rachoji Rao Jadhav,

Aged about 50 years,

President,

Shri Mahakali (Mayakka) Devi Trust,

Chinchali, Tal-Raybag,

Belgaum District.

…PETITIONER


Janmane, Advocate)

AND:




Vidhana Soudha,

27

Bangalore.


Secretary to Government,


M.S.Building,

Bangalore.

3. Commissioner,



K.G.Road,

Bangalore.


Belgaum District,

Belgaum.

5. Assistant Commissioner,

Chikkodi Sub-Division,

Chikkodi, District Belgaum.

…RESPONDENTS



This petition is filed under Articles 226 and 227 of the






28

These petitions having been heard and reserved on

05.10.2015 at Dharwad Bench, Dharwad and coming on for

pronouncement of Orders at the Principal Bench, Bengaluru, this

day, Anand Byrareddy J., delivered the following:-

ORDER

These petitions are heard and disposed of by this common

order.

2. The petitions in WP 65648-680/2011 and WP 64805-

868/2011, which are filed challenging the constitutional validity

of the Karnataka Hindu Religious Institutions and Charitable

Endowments (Amendment) Act, 2011 (Act no.22/2011), were by

an order dated 9.2.2012, directed by a learned single judge to be

placed before a division bench - for disposal, with an intention

that one stage of appeal be avoided and having regard to the need

for an expeditious decision by this court.

3. The background to the legislation in controversy is

stated to be as follows :-

29

The State of Mysore, which stood reorganized by the

States Re-organisation Act, 1956, (Hereinafter referred to as the

‘SR Act’, for brevity) with effect from 1.11.1956 and which stood

re-christened as the State of Karnataka, with effect from

1.11.1973, is composed of the erstwhile princely State of Mysore,

the erstwhile province of Coorg and parts of the erstwhile States

of Bombay, Hyderabad and Madras.

In each of the above States and province, there were

separate enactments governing temples and other religious

institutions situate within those regions. With the coming into

force of the SR Act, it became obligatory for the State of Mysore

to enact a uniform law, which would govern all the temples,

religious institutions, denominations, maths etcetera. In this

regard, there were said to be two abortive attempts in the year

1963 and in 1977, respectively, to remove the inequality between

temples and the maths situated in South Kanara District and those

situated in other parts of the State. The Apex Court had thus been

prompted to observe in the case of Shri Swamiji of Admar Math v.

30

The Commissioner, HR & C Endowment Department, AIR 1980

SC 1; that the State did not make any effort to bring a uniform

law which would be applicable to the entire State, in the matter of

governance of Hindu Religious denominational temples etc.

It was only in the year 1997 that the Karnataka Hindu

Religious and Charitable Endowments Bill was said to have been

introduced, which had received the assent of the President of India

as on 25.10.2001. Pursuant to which, it was enacted as Karnataka

Act no.33 of 2001. It was brought into force vide notification

dated 1.5.2003.

However, by a notification dated 30.4.2003, a day before

the Act was brought into force, 34000 temples were declared as

notified temples for purposes of Section 23 of the Act. This was

promptly challenged by the Devalaganagapur

Narasimhasaraswathi Math, Ganagapura, before the Gulbarga

Bench of this court. A learned single judge had quashed the said

notification, which was affirmed by a division bench in appeal.

The matter is said to be pending before the Apex Court.

31

The Karnataka Act no.33/2001 itself having been assailed

in a large number of writ petitions before this court, a learned

single judge had dismissed the same. In appeals before a Division

bench, it was held that the enactment was ultra vires Articles 14,

25 and 26 of the Constitution of India. That verdict is the subject

matter of appeals before the Apex Court. There was an interim

order granted by the Apex Court dated 2.4.2007 to the following

effect :-

" Issue notice.

Interim stay in the meantime.

Ms.Kiran Suri, Mr.S.N.Bhat and Mr.P.P.Singh,

Advocates takes notice on behalf of the

respondents."

By a further Order dated 31.7.2009, the same was modified

as follows :-

"Interim Order dated 02.04.2007 is vacated in so

far as Section 25 of the Act is concerned."

This was possibly on account of the complaint of the

respondents therein that the State was seeking to arbitrarily

32

exercise power under Section 25 of the Act, by virtue of the Order

of stay.

Further, even during the pendency of the appeals before the

Apex Court, the State Government is said to have constituted a

High Level Committee, headed by Justice M. Rama Jois (Retired),

to give suggestions for better administration of temples in the

State and to make recommendations for amendment to the

Karnataka Hindu Religious Institutions and Charitable

Endowments Act, 1997 (Hereinafter referred to as the ‘KHRICE

Act’, for brevity). The said Committee having submitted its

report, the State Government is said to have enacted Act no. 27 of

20ll, (Hereinafter referred to as the ‘2011 Amendment Act’, for

brevity) purportedly making comprehensive amendments to the

principal Act. The amendments were said to have been given

effect to from 4.5.2011.

The State had hence filed an application seeking permission

to enforce the amended Section 25 of the Act as amended by the

2011 Amendment Act. The said application was disposed of by

33

the Apex Court, by an order dated 10.10.2011, in the following

terms :

"The State has filed an application (I.A.no.17)

seeking permission to give effect to the amended Section

25 of the Act.

The interim Order granted was with reference to

the then existing Section 25. Amended Section 25 is not

the subject matter of the said interim order. Therefore

the application is redundant. It is open to the writ

petitioners who have challenged the amended Section 25

to seek interim relief before the High Court.

I A no.17 is disposed of accordingly. "

Now during the pendency of these petitions, challenging the

constitutional validity of the 2011 Amendment Act, which

primarily centres around Section 25 of the principal Act (Act

no.33/2001), the said section which was inserted in the Principal

Act with the amendments brought about by the 20ll Amendment

Act has now been "omitted" from the statute book by the

Karnataka Act no.12/2012, (Hereinafter referred to as the "2012

Amendment Act" ) and a new Section is "inserted" in its place.

34

The Apex Court having been moved for further directions

in the wake of the above development. The Apex Court has made

the following Order dated 24.3.2015 :-

“The validity of Karnataka Hindu Religious

Institutions and Charitable Endowments Act, 1977 has

been struck down by the High Court by the impugned

order dated 8th

September, 2006 of the High Court. By

interim order dated 2nd

April, 2007 passed in the Civil

Appeal No.5924 of 2008 (Arising out of Special Leave

Petition (Civil) No.5398 of 2007), operation of the order of

the High Court has been stayed. The effect of the interim

order dated 2nd

April, 2007 is that the aforesaid Act of 1997

continues to be in force. In the meantime, the aforesaid Act

of 1997 has been amended and we are told that the validity

of the said amendment is pending consideration in the Writ

Petition (s) before the High Court.

In the circumstances, we defer the hearing of these

appeals until decision of the Karnataka High Court is

rendered in the Writ Petition (s) challenging the validity of

the amendment to the aforesaid Act of 1997. We request

the Karnataka High Court to expedite the hearing of the

Writ Petition(s) and conclude the same as early as possible

and let this Court have the benefit of its views in the matter.

Let this order be brought to the notice of the

Karnataka High Court by the respective parties.”

35

4. At the hearing of these petitions, when it was pointed out

by the learned Senior Advocate, Shri M.N.Rao appearing for the

State - that Section 25 of the Principal Act as amended by the

2011 Amendment Act was no longer on the statute book, an

application was filed in the petition in WP 64805 - 868 of 2011,

seeking to include an additional prayer specifically challenging

Act 12/2012 on the same grounds on which the 2011 Amendment

Act is challenged, as follows :

"To declare and strike down Karnataka Act

no.12/2012 also which professes to further amend a still

born and void Karnataka Act no.33/2001, as void,

inoperative and unenforceable."

5. The learned Senior Advocate, Shri Subramanya Jois,

appearing for the learned counsel for the petitioners would

contend that the Apex Court in the case of Shri Swamiji of Admar

Math, supra, had indicated that Section 119 of the SR Act was

intended to serve a temporary purpose. In that, it was to enable

the new units to consider the special circumstances on the diverse

36

units before launching upon a process of adaptation of laws so as

to make them reasonably uniform having regard to the special

needs of the various regions. And that - Acts, Rules and

Regulations whose constitutional validity is upheld and could be

upheld only on the ground that no violation, per se, of Article 14

is involved in the application of different laws to different

components of a State, if the area to which unequal laws are

applied has become a part of the State as a result of the States Re-

organisation, it cannot continue to apply to such area, indefinitely.

Further, that inequality was writ large on the face of the Madras

Hindu Religious and Charitable Endowments Act, 1951, in its

application to the District of South Kanara and "perilously near

the periphery of unconstitutionality", that the Apex court had

restrained itself from declaring the law as inapplicable to the said

region, in the hope that the State Government would act promptly

and move an appropriate legislation, possibly with in a year from

the date of pronouncement of its judgment, namely, 27.8.1979.

37

It is contended, that lamentably the State Legislature has

only embarked on further confounding the situation as is evident

from the above sequence of events.

It is pointed out by Shri Jois that in the Civil Appeals before

the Apex Court, by the State, challenging the judgment of a

division bench of this court in the case of Shri Sahasra

Lingeshwara temple v. State of Karnataka, 2007(1) Kar.LJ 1,

wherein there was an interim order of stay, dated 2.4.2007, it was

the fervent plea of the State to the following effect :

“ It is submitted that, considering the grievance urged

by the respondents petitioners the State is proposing to make

necessary amendment to the Act to include under the purview

of the Act and Mutts, the Temples attached to Mutts,

denomination temples and to include the Religious and

Charitable Institutions of Jains, Buddhists and Sikhs under

the purview of the Act. Hence, on this ground also the

judgment of the Division Bench of the High Court of

Karnataka required to be reversed by recording the

submissions of the State to carry out necessary amendments

to the Act.”

38

It is contended that it has been held in Sahasra

Lingeshwara's case that the legislation in its entirety was struck

down. But the State was proceeding on a mistaken impression

that the interim order of the Apex Court dated 2.4.2007, as having

revived the Karnataka Act no.33/2001, enabling it to "amend" the

said enactment vide the 2011 Amendment Act. The same is under

challenge in these petitions on grounds and contentions fully

covered in their favour by the pronouncement rendered, albeit in

the context of Karnataka Act no. 33/2001, in Sahasra

Lingeshwara's case.

Attention is drawn to the "Statement of Objects and

Reasons" preceding the 2011 Amendment Act, to contend that the

same illegalities, discrimination and unconstitutionality,

graphically elucidated in Sahasra Lingeshwara's case have been

contumaciously reintroduced. As for instance, keeping out of the

purview of the legislation maths and temples attached to maths,

having been found fault with in Sahasra Lingeshwara; And

further, the Report of the Committee headed by Justice Rama Jois

39

also having concluded that such an exclusion is violative of

Articles 14,25 and 26 of the Constitution of India, the State has

proceeded to literally overturn the verdict of this Court.

It is urged that the Amending Act of 2012 only seeks to

reintroduce the very same unconstitutional provisions - with

cosmetic changes - and is therefore a repeated affront to this

Court.

It is emphasized that neither the Amending Act of 2011 nor

the Amending Act of 2012 claim to be in the nature of validating

legislation, but are clearly Acts amending and further amending

the Principal Act, which, at best, is in suspended animation by

virtue of the interim order of stay granted by the Apex Court.

Shri Jois would thus contend that Karnataka Act

No.33/2001 having been struck down as being unconstitutional,

the purported amendments thereto do not constitute either a

validation or a fresh enactment, particularly because far from

addressing and removing the anomalies pointed out by this court

in Sahasra Lingeshwara’s case, the same have been reintroduced

40

arbitrarily, contumaciously, and for the reasons mentioned in the

respective Statements of Objects and Reasons, published for

introducing the respective Bills. The same being impermissible in

law, as laid down by the Supreme Court, inter alia in the case of

Sri Prithvi Cotton Mills Limited vs. Broach Borough Municipality

and others, AIR 1970 SC 192. While the legislature has

competence under the Constitution to pass a law and also to pass a

validating law. A validation must necessarily remove the defect

which the courts had found in the “existing law”, and adequate

provisions for validating the existing law should be made. The

said ruling having been followed in several later rulings of the

apex court and in particular in the case of State of Tamilnadu vs.

State of Kerala, AIR 2014 SC 2407, in which it has been laid

down that “in exercising legislative power, the legislature, by

mere declaration, without anything more, cannot directly over-

rule, revise or overwrite a judicial decision, but it can render a

judicial decision by enacting valid law on the topic within its

legislative field fundamentally altering or changing its character

41

retrospectively. The changes or altered condition are such that the

previous decision would not have been rendered by the court if

those conditions had existed at the time of declaring the law as

invalid….. The consistent thread that runs through all the

decisions of this Court is that the legislature cannot directly

overrule the decision or make a direction as not binding on it, but

has power to make the decision ineffective by removing the base

on which the decision was rendered; consistent with the law of the

constitution, and the legislature must have the competence to do

the same.” In Paragraph 79 of the said decision, quoting

Thomas Cooley as noticed by Scelia J, in the case of Paul Tetal

vs. Spend Thrift Farm incorporated (1995)514 US 211, the

Supreme Court has stated thus:

“If the legislature cannot indirectly control

the action of the courts by requiring them a

construction of the law according to its own views, it

is very plain that it cannot do so directly by setting

aside their judgments, compelling to grant new trials

ordering the discharge of offenders or directing what

particular steps shall be taken in the progress of a

42

judicial inquiry …. Having achieved finality,

however, a judicial decision becomes the last word

of the judicial department with regard to a

particular case or controversy and congress may not

declare by retroactive legislation that the law

applicable to that very case was something other

than what the court said it was.”

It is contended that Paragraphs 82,84,85,96 in particular are

quite apt and relevant in the context and fully support the above

contention of the petitioners.

It is emphasized that the interim order staying the judgment

in Sahasra Lingeshwara’s case cannot and has not revived the

Karnataka Act No.33/2001 nor can the effect of the said order be a

revival or a restoration of a void legislation. Reliance, for this

proposition, is placed by the petitioners, inter alia, on the

following rulings:

(i) Bhram Kurshid Pesikaka vs. The State of Bombay, AIR

1955 SC 123,

(ii) Saghir Ahmed vs. State of U.P., AIR 1954 SC 728

43

(iii) Deepchand vs. The State of UP and others, AIR 1959

SC 648,

(iv) Mahendralal Jaini vs. The State of U.P. and others,

AIR 1963 SC 1019,

(v) P.L.Mehra vs. D.R.Khanna and others, AIR 1971 Delhi

Page 1,

(vi) M/s Sree Chamundi Mopeds Limited vs. Church of

South India Trust Association, Madras, AIR 1992 SC 1439

(vii) Rudragowda vs. Angadi Chikanna, 1972(1) Mys.LJ

310.

The contention of the respondents that the impugned

enactments have been made in exercise of the State Legislative

power is untenable. Deepchand’s case supra is a direct answer.

The further contention of the State that the stay of the

judgment has given rebirth to or has brought back the still-born

Karnataka Act No.33/2001 is equally untenable, not only for the

reasons stated supra but also for the reason that the stay order does

44

not at all reflect a reasoned order, which is a necessity, according

to Shri Jois. Reliance in this regard is placed on Smt.Swaranlatha

Ghosh vs. Harindra Kumar Banerjee, AIR 1969 SC 1167, Ravi

Yashwanth Boir vs. The District Collector, Raigad, 2012(4) SCC

407).

The contention that the order dated 10.10.2011 holding IA

No.17 filed by the State as redundant, would lead to an inference

that the amendment holds the field or that Karnataka No.33/2001

would revive is also equally untenable for it is not the ratio

decidendi nor even obiter dicta. It is not either a declaration of

law or a precedent. In this regard, reliance is placed on Oriental

Insurance Company Limited vs. Rajkumari, 2007(12) SCC 768,

Padmasunder Rao vs. State of Tamilnadu, 2002(3) SCC 533,

Punjab National Bank vs. R.L.Vaid, 2004(7) SCC 698.

It is contended that the contentions of the respondents

regarding the absence of pleadings is untenable. It is emphasized

that the pleadings of the petitioners are clear and specific. It is not

the length of the petition, but the substance thereof which would

45

be relevant in the context. There is nothing wanting in the same.

Rulings which support their contentions, the backdrop of the case

and the chronology of events preceding the filing of the writ

petitions have all been candidly and specifically pleaded in the

petition. To pick holes in it, would be not only untenable, but

also unreasonable for the State which has not even filed any

pleading or statement of objections opposing the petitions, but has

sought to raise several contentions at the hearing which are not

founded on the pleadings.

As regards the formal amendments sought by the

petitioners, it had been specifically stated in the application filed

in that regard that the necessity to file the said application arose

only in view of the hyper-technical contention raised at the bar, in

the arguments of the respondents, and that on the very grounds on

which Karnataka Act No.27/2011 would commend being declared

void, Karnataka Act No.12/2012 would also meet the same fate.

Further that the petitioners have relied upon a relatively recent

ruling of the Supreme Court in the case of Rameshkumar Agarwal

46

vs. Rajmala Exports Private Limited and others, 2012(5) SCC

337, paragraphs 19 to 21 thereof, in particular, supporting the case

of the petitioners that the formal amendment sought is bona fide,

and legitimate. Particularly to avoid a multiplicity of litigation. It

is stated that the respondents have not come up with any statement

of objections for the last three years having contended that

Karnataka Act No.12/2012, which has been enacted later in point

of time is not specifically challenged, have filed their objections to

the amendment, however not attributing, any malice to the

petitioners in seeking the amendment.

The impugned enactments being void, and their invalidity

and unconstitutionality can conveniently be declared so for the

weighty reasons contained in the well-considered ruling in

Sahasra Lingeshwara’s case.

6. Shri M. N. Rao, on the other hand, would point out

that except the writ petitions in WP 65539/2011, the entire batch

of Writ Petitions, in WP 64805-868/2011, WP 72157/2012 and

47

WP 80796-80822/2013 and WP 64648/2011 are identical in

nature and prayers made are also identical. The petitioners in all

the writ petitions are Public Religious Charitable Trusts registered

under the erstwhile Bombay Trusts Act, 1950, which was repealed

by the Hindu Religious Institutions and Charitable Endowments

Act 1997 (Hereafter referred to as ‘Act No.33 of 2001’, ). The

prayers in the three Writ Petitions are identical.

Insofar as the writ petition is WP 65539 of 2011 is

concerned, the additional prayer is for quashing of the order

passed by the Commissioner, Hindu Religious Institutions and

Charitable Endowments on 4.7.2012 appointing an administrator

in respect of the petitioner - trust.

In so far as the additional prayer in writ petition in WP

65539/2011 is concerned, the same is governed by the orders

passed on 23.9.2015 by this court in WP 70822-824/2012.

The following are the identical prayers in WP 84805-

868/2011, WP 72157/2012 and WP 80796-80822/2013 and WP

65648/2011:-

48

a) To declare that the Karnataka Hindu Religious

Institutions and Charitable Endowments (Amendment) Act 2011

(Karnataka Act No.27 of 2011) as discriminatory, violative of

Constitutional rights, unconstitutional and strike down the same in

its entirety;

b) Alternatively, to declare that Hindus as a religious

denomination within the meaning of Article 26 of Constitution of

India and accordingly to declare that Karnataka Hindu Religious

Institutions and Charitable Endowments (amendment) Act 2011

(Karnataka Act 27 of 2011) and Rules 2002, can have no

application to Hindus and their right to establish, manage and

administer their own Religious and charitable Institutions;

c) To issue directions to the State Government to enact

a legislation on the lines of Bombay Public Trusts Act 1950 with

respect to Hindu Religious and Charitable Institutions.

(i) It is contended that as regards the prayer for

declaration of Hindus as a religious denomination is concerned, it

deserves to be dismissed in view of the Constitution Bench

49

judgment of the Supreme Court in Shastri Yagnapurushasji and

others v. Muldas (AIR 1966 SC 1119), in which it was held that

Hinduism is a religion. (vide paras 26,27, 32). There are several

denominations within the fold of the Hindu religion and the same

is stated authoritatively by the 7 judge bench of the Supreme

Court in Commissioner, Hindu Religious Endowments, Madras v.

Shri Lakshmindra Thirtha Swamiar AIR 1954 SC 282 (Shirur

Matt case – para 15)

As Hindus are not a religious denomination the

consequential prayer in B above does not arise.

(ii) The prayer C is totally misconceived. There cannot

be a direction to the State Government to enact a legislation

similar to the Bombay Public Trusts Act in respect of Hindu

Religious and Charitable Institutions. The legal principle in this

regard is well settled. In Supreme Court Employees Welfare

Association v. Union of India and another (1989) 4 SCC 187,

wherein it was held that Courts cannot direct government to make

law.

50

(iii) The prayer A relates to challenge to the

constitutionality of Karnataka Act 27/2011 (hereinafter referred to

as 2011 Amendment Act). Although the 2011 Amendment Act in

toto was challenged, the submissions made on behalf of the

petitioners by Shri Jois, Senior Advocate centred around Section

25 of the principal Act (Act No.33/2001). This Section 25 in the

principal Act has undergone amendments twice. Section 25 as

inserted in the principal Act with the amendments brought about

by the 2011 amendment Act was “omitted” from the statute book

by Karnataka Act No.13/2012 by which a new section was

“inserted” vide Section 12 of Act No.13/2012. When it was

pointed out to the Court that Section 25 of the principal Act as

amended by the 2011Amendment Act is no longer on the statute

book, the learned counsel appearing for the petitioners had, on

13.9.2015, filed an application in W.P.No.64805-868 praying for

raising an additional prayer specifically challenging Act 12/2012

on the same grounds on which the 2011 Amendment Act is

51

challenged in the batch of Writ Petitions. The specific prayer

sought is:-

“To declare and strike down Karnataka Act

No.12/2012 also which professes to further amend a still born and

void Karnataka Act No.33/2001 as void in operative and

unenforceable.”

It is contended that the application does not contain any

specific pleadings in regard to the prayer made. Hence, the prayer

is utterly untenable. The reasons are:-

a) It proceeds on the wrong and untested assumption

that Act 12/2012 “professes to amend a still born and void”

principal Act i.e. Act 33/2001 and hence Act No.12/2012 is also

inoperative and unenforceable.

b) The principal Act 33/2001 is under appeal in the

Supreme Court and an order of stay has been granted by the

Supreme Court on 2.4.2007. The Supreme Court also held in its

order dated 24.3.2015 that the Act will be in force (till the disposal

of the appeal). When the premise on which the additional prayer

52

is based itself has no foundation, the prayer becomes

unsustainable.

c) There are absolutely no pleadings as to why and on

what grounds the Act 12/2012 is unconstitutional. The grounds

on which the 2011 amendment Act has been challenged so far as

Section 25 is concerned are of no avail in deciding the validity of

Act 12/2012.

d) Section 25 of the principal Act as inserted by Act

No.12/2012 in certain respects is different from what was enacted

by the 2011 Amendment Act, especially addition of clause (d) in

sub-Section 2 excluding office bearers of political parties from

temple management committees, thus totally obliterating the basis

for the allegation of politicization of Hindu religious institutions.

It is further contended that the amendment application is

filed only in W.P.No.64805-868/2011. In the other connected

Writ Petitions i.e. W.P.No.65539, W.P.Nos.72157/12 and 80796-

80822/13 and W.P.No.65648/2011, there are no applications

seeking permission to incorporate an additional prayer.

53

With reference to the pleading in the writ petitions that the

Amendment Act of 2011 takes away the jurisdiction and quasi

judicial powers of authorities such as the Charity Commissioner

and other posts held be judicial officers under the Bombay Public

Trusts Act, 1950, and that those powers have been conferred on

Executive Officers - untrained in law to decide complicated

questions of law and therefore the independence of the judiciary

has been affected, Shri Rao would contend that that the Bombay

Public Trusts Act was repealed by Section 78 of Act No.33/2001.

The petitioners have no semblance of a legal right to make a

prayer of this nature without focussing on any legal principle on

the basis of which such a pleading could be made. No facts are

stated, and no instances where the authorities under the principal

Act 2001 have failed to decide the alleged “complicated questions

of law”. How the independence of judiciary is affected, the

pleadings are silent. It is submitted that this grievance is purely

imaginary, unrelated to the realities.

54

It is pointed out that in so far as the contention that the

fundamental rights guaranteed under Articles 25 and 26 of the

Constitution of India have been taken away by the constitution of

the Rajya and Zilla Dharmik Parishads and that their constitution

amounts to politicisation of the Hindu Religious Institutions etc.,

that the pleadings are vague and it is not specified as to how such

rights , qua the petitioners, have been violated.

In so far as the binding nature of the decision in Shri

Sahasra Lingeshwara 's case is concerned, it is contended by Shri

Rao that The judgment of the division bench dated 8.9.2006 is in

appeal before the Supreme Court. The present question raised

relating to discrimination is one of the points which will arise for

adjudication or resolution before the Supreme Court. That the

alleged ground of discrimination has no legal foundation as maths

are distinct and different from temples. The two belong to

different categories and the classification differentiating the two

does not suffer from any legal infirmity. Attention is drawn to

Commissioner, Hindu Religious Endowments, Madras v. Shri

55

Lakshmindra Thirtha Swamiar AIR 1954 SC 282 (paras 15) and

Vishwothama Thritha v. State of Mysore AIR 1966 SC 1882 (para

21 and 22), in this regard.

In State of Gujarat v. Ambica Mills (1974) 4 SCC 656, the

Constitution Bench explained the concept of reasonable

classification (reference is drawn to paras 54 and 60, 61)

Another Constitution Bench in Shakawat Ali v. State of

Orissa, AIR 1955 SC 166 in para 10 held as follows:-

“The simple answer to this contention is that legislation

enacted for the achievement of a particular object or

purpose need not be all embracing. It is for the Legislature

to determine what categories it would embrace within the

scope of legislation and merely because certain categories

which would stand on the same footing as those which are

covered by the legislation are left out would not render

legislation which has been enacted in any manner

discriminatory and violative of the fundamental right

guaranteed by Article 14 of the Constitution.”

Further, the denominational temples have certain other

additional rights which they enjoy in contradistinction to the rights

and privileges of public temples. In this regard reference is made

56

to Venkataramana Devaru v. State of Mysore AIR 1958 SC 255

(paras 24 and 32).

As regards the contention that the impugned legislation is in

breach of the dictum of the Apex Court in Admar Mutt case,

where the need for a uniform legislation was emphasized.

Attention is drawn to the following passage therein :

“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 thereto may have to be explored, if and

when occasion arises.”

And it is contended that a “tentative viewpoint” which is

not the outcome of any investigation from the highest court cannot

be approximated to a direction or a mandamus giving rise to a

valid cause of action. The only question before the Supreme

57

Court was whether the continued application of the Madras Hindu

Religious and Charitable Endowments Act to South Kanara was

violative of Article 14. The Supreme Court infact dismissed the

appeal of the petitioners.

In regard to the primary contention of the petitioners that

when the Principal Act was struck down by a Division Bench of

this court the Act is dead, void ab initio , and that the order of stay

granted by the Apex Court also cannot breathe life into it, is

concerned , it is pointed out that the The Supreme Court itself

has said in its order dated 24.3.2015 that the consequence of the

stay is that the “Act will be in force”, hence there is no merit in

the present contention.

What is the effect of interim stay granted by the Supreme

Court cannot be subject matter of issue before this Court, when

the Supreme Court itself has said that the Act will be in force.

Even if the Supreme Court had not observed that the Act

will be in force because of the stay the decisions rendered by the

Supreme Court clearly point out the same.

58

In the case of Indira Nehru Gandhi vs. Raj Narain and

another , 1975 Supp SCC 1 the Supreme Court has held:

“The legal effect of that stay order was that

the trial court’s order……………………., “shall be deemed

never to have taken effect”… It did not matter if the stay

order, out of deference for existing precedents, had been

framed in the form of a “conditioned” stay that is to say, a

stay in law and effect with certain conditions annexed.”

“The operation of the judgment of the trial Court

and the consequential orders are stayed only on “sufficient

cause” shown on the facts of that case.”

Further in the judgment of Indira Nehru Gandhi (Smt.) vs.

Raj Narain 1975 SCC (2) 159 rendered by Justice Krishna Iyer, it

was held:

“the legal effect of an order of this Court

suspending the application of the judgment and order of the

High Court is that by sheer force of the first limb of this

court’s stay order, the judgment and order of the High

Court is nullified for the once i.e., till the appeal is

disposed of…… There is a plenary eclipse of the High

Court’s judgment and order during the pendency of the

appeal.”

59

As regards the contention that the Apex Court having

vacated the order of Stay, in so far as Section 25 of Act no. 33 of

2001, which was struck down by the Division Bench of this court,

it is contended that the Amendment Act of 2012 cannot be

characterized as a colourable legislation and that The legislature

had undoubted power to legislate by virtue of Entry 28 of List III

of Schedule 7 to the Constitution of India. When the Act is within

the legislative competence, no question of colorable exercise of

legislative power will arise. (Sri Ram Ram Narain Medhi vs. The

State of Bombay AIR 1959 SC 459 para 45).

It is also well settled that no motives could be attributed to

the legislature. The question as to bona fides or motives will not

arise in judging the constitutionality of enactments.

(K.C.Gajapati Narayan Deo and others vs. The State of Orissa,

AIR 1953 SC 375).

Therefore, it is contended that the writ petitions deserve to

be dismissed as the questions of the law raised are unsustainable

and the pleadings are vague and bereft of particulars. And no

60

religious practice was claimed to have been affected adversely. In

fact no mention of the religious practice is found in the writ

petitions. Not even an optional or let alone essential religious

practice is pleaded in the writ petition. The petitioners have no

manner of right to seek adjudication of constitutional questions in

vacuum.

7. In the light of the above rival contentions the points that

arise for consideration are :

i) Whether the State Legislature has merely amended and further

amended the provisions of Act No. 33 of 2001, by virtue of the

2011 Amendment Act and the 2012 Amendment Act, only to re-

introduce provisions of the said Act that are held to be ultra vires ,

Articles 14, 25 & 26 of the Constitution of India - by a Division

Bench of this court. ?

ii) Whether the amended provisions by virtue of the 2011

Amendment Act and the 2012 Amendment Act, suffer from the

same anomalies and unconstitutionalities which were found in the

61

Principal Act that was struck down on that count , in Shri Sahasra

Lingeshwara.?

iii) Whether the legislative power of the State under Entry 28 of

List III of Schedule VII, to the Constitution of India, would enable

the State to amend Act No.33 of 2001, repeatedly, even during

the pendency of the appeal before the Apex Court, against the

verdict of the Division Bench of this court in Shri Sahasra

Lingeshwara Temple case.?

iv) Whether Section 25 of the Principal Act was available on the

statute book to be subjected to amendment , when the Apex Court

had specifically vacated the Order of Stay in respect of the same. ?

To consider the first and second points for consideration as

framed above, it would be necessary to briefly take stock of the

findings on which the decision in Sahasra Lingeshwara Temple

case was rendered.

62

A batch of writ petitions were filed by Hindu temples,

Managing Trustees in the management of temples, archaks and

others, from various parts of Karnataka State, questioning the

constitutional validity of the several provisions of the Karnataka

Hindu Religious Institutions and Charitable Endowments Act,

1997 ( Act No. 33 of 2001). A learned single judge of this court

having heard the matters on merits had, by an order dated

9.9.2005, held that the Act was constitutionally valid.

The Order of the learned single judge was carried in appeal

before a Division Bench of this court. The Division Bench on

having heard extensive arguments had framed the following points

for its consideration :

“After hearing, we are of the view that the following

points require our consideration:

(1) Object/history of the Act;

(2) Scheme of the Act

(3) Constitutional validity of the Act with

Reference to Articles 14,25, and 26.

(4) Conclusions

(5) Relief.”

63

The Object of the Act, according to the Bench was two fold

- i) to make better provision for the management of Hindu

Religious Institutions; and ii) to have a uniform law, in the light

of a long standing public demand, to provide for regulation of all

Charitable Endowments and Hindu Religious Institutions in the

State of Karnataka.

The Scheme of the Act was apparent on a plain reading of

the same. It however, was evident that it did not apply to all

Hindu religious institutions. It was limited in its application to

particular religious institutions.

As regards the Constitutional validity of the Act with

reference to Articles 14, 25 and 26 of the Constitution of India,

was concerned, the contention as regards the provisions of the Act

being discriminatory and arbitrary in the matter of application of

the Act is concerned, essentially the exclusion of maths etcetera,

in terms of Section 1(4) and the exclusion of Buddhists, Jains or

Sikhs in terms of Section 2(16) being in violation of Article 14 of

64

the Constitution of India- the point was examined with reference

to the following cases :

(1) Ram Krishna Dalmia and others vs. S.R.Tendolkar and

others, AIR 1958 SC 538,

(2) Shri Swamiji of Shri Admar Mutt vs. Commissioner,

Hindu Religious and Charitable Endowments Department and

others, AIR 1980 SC 1,

(3) Dr.M.Ismail Faruqui and others vs. Union of India, AIR

1995 SC 605

(4) Shastri Yagnapurushdasji and others vs. Muldas

Bhundardas Vaishya and another, AIR 1966 SC 1119,

(5) Dr.Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath

Kunte , AIR 1966 SC 1113,

(6) Pannalal Bansilal vs. State of Andhra Pradesh, AIR

1996 SC 1023,

(7) Bal Patil and another vs. Union of India, AIR 2005 SC

3172, and

65

(8) M.P.Gopalakrishnan Nair vs. State of Kerala, AIR 2005

SC 3053.

The contention of the writ petitioners was accepted, in the

circumstance that the exclusion of maths, as being in violation of

Article 14 of the Constitution of India. That the legislation was

apparently not uniform in its application.

It was also found that the Act did not apply to Hindu

religious institutions or Charitable endowments - founded and

managed by Hindu religious denominations. It was held that

Hindu religious denomination temples were no different from

other Hindu temples. The judgments in Mukundaraya Shenoy v.

State of Mysore, AIR 1960 Mys.18 and K.Eranna v. Hindu

Religious and Charitable Endowments, 1970(1) Mys.LJ 170 (DB),

were cited with approval, to hold that the inapplicability of the Act

to the Hindu Religious institutions run by Hindu religious

denominations, as being violative of Article 14 of the Constitution

66

of India. And that the State had failed in its duty to justify such

exclusion.

As regards the definition of a 'Hindu' , contained in Section

2(16) of the Act, not to include a Buddhist, Jain or a Sikh, it was

held, while drawing reference to Explanation II appended to sub-

clause (b) of Clause (2) of Article 25 of the Constitution and while

distinguishing the judgments in Mahant Moti Das v. SP Sahi, AIR

1959 SC 942; Tilkayat Shri Govindlalji Maharaj v. State of

Rajasthan, AIR 1963 SC 1638; State of Gujurat v. Shri Ambica

Mills Limited, AIR 1974 SC 1300; The Division Bench disagreed

with the learned single judge that on the principle of limits of

judicial review, discrimination in a given circumstance could not

be addressed with reference to Article 14 of the Constitution of

India.

As regards the contentions regarding violation of Articles

25 and 26 of the Constitution of India is concerned - focus was

on the following provisions of the Act :

67

“Sections 3 to 8 in Chapter II deals with the powers

of the Commissioner.

Chapter III deals with the appointment of Archakas

and temple servants, emoluments, salary etc.

Common Pool Fund is created in terms of Chapter

IV. Advisory Committee is constituted in terms of Chapter

V.

Notifying institutions are referred in Chapter VII and

declared institutions are suggested in Chapter VIII.

Powers of the Commissioner are shown in Chapter

IX.”

It was found that the law was covered against the archaks in

the case of A.S. Narayana Deekshitulu v. State of Andhra Pradesh,

AIR 1996 SC 1765. Though the said judgment had been referred

to a larger bench in a later judgment in A. Ramaswamy Dikshitulu

v. Government of Andhra Pradesh, (2004 ) 4 SCC 661.

In so far as the challenge to the 'Common Pool Fund', 'the

Advisory Committee' and 'Declared institutions'- was concerned,

the Division Bench had considered the law laid down by the Apex

Court with regard to the interpretation of Articles 25 and 26 of the

Constitution of India in the following decisions :

(1) Bal Patil and another vs. Union of India, AIR 2005 SC 3172,

68

(2) Dr.Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte,

AIR 1966 SC 1113,

(3) Commissioner of Wealth Tax, Madras and others vs. late

R.Sridharan by legal representatives, (1976)4 SCC 489,

(4) Commissioner, Hindu Religious and Charitable Endowments,

Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,

AIR 1954 SC 282,

(5) Ratilal Panachand Gandhi vs. State of Bombay, AIR 1954 SC

388,

(6) Sri Venkataramana Devaru vs. State of Mysore, AIR 1958 SC

255

(7) Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi

and others vs. State of Uttar Pradesh and others, (1997)4 SCC

606,

(8) N.Adithayan vs. Travancore Devaswom Board and others,

AIR 2002 SC 3538

(9) A.Ramaswamy Dikshitulu v. Government of Andhra Pradesh,

(2004 ) 4 SCC 661,

69

It was found with reference to the above that the founding

fathers of the Constitution had chosen to provide religious rights

in terms of Articles 25 and 26 of the Constitution of India. The

said rights were guaranteed to a citizen of India. The right is

subject to Article 26, which provides for a right to administer a

religious place.

In the light of the above, Chapter III was held not to be

violative of Articles 25 and 26 of the Constitution of India.

It was also found that in terms of Section 17 of Chapter IV,

a Common Pool Fund is created. And that out of contributions

made by the notified institutions at 5% of their gross annual

income after deduction of the donations made as contribution to

the temple property and amount received for specified services or

charges and the grant received from the State Government. That

the temples receive donations by way of kanike, harike, hundi

etc., depending on the name and fame of the temple, in addition to

the religious practices available at the temple. Hence it was held

70

that the gross annual income taken for the purposes calculating

the percentage was arbitrary. That the Common Pool Fund could

only be the surplus left over and not on the gross income. That if

5% of the gross annual turnover is taken away, it would not be

possible to manage the temple and meet the expenses involved.

That even the administration of the Fund was in the hands of a

Commissioner. It is held that though laudable objects are

provided in the matter of administration of the Common Pool

Fund, but a careful reading of certain purposes would show that

the said purpose seemed to be arbitrary in character.

It is in this context, the division bench has held thus:-

“It cannot be forgotten that money is taken out of

the Hindu temple. Money is poured by Hindus. It may be a

laudable object to provide to a poor institution of other

religions. But it cannot be only from the funds of Hindu

temple alone. The State has to provide such assistance as

is necessary to such institutions but there can be no

compulsion only from Hindu temple to provide assistance

to such institutions. It can be voluntary by Hindu temples,

but it cannot be compulsory, prima facie in terms of the

Act. In Section 19(1)(h) rightly, the Government has

chosen to say that the administration can be for

71

establishment and maintenance of Hindu children. But

those words are missing in Section 19(1)(i) and (j). This

Court is not for a moment suggesting that poor institutions

of other religions are not to be helped but who is to help is

the question and how to help those institutions. After all,

devotees of Hindu temples provide kanike or money to that

Hindu temple for temple purposes and it cannot be spent

for other non-Hindu causes without any relevance to the

Hindus. Though Hindu religion does not prohibit such

contribution prima facie, but still it is desirable that such

amount if spent only for Hindu Institutions. As otherwise,

there is every likelihood of the Hindu institutions asking for

assistance/ maintenance from other religious institutions

which ultimately may result in unwanted religious quarrels.

Further as regards the “Advisory Committees”, it was

opined thus:

“62. Insofar as Advisory Committee is concerned,

it is seen that it is headed by a Minister. The Committee is

only vested as advisory power in terms of Section 22 but

however what cannot be forgotten is that there is every

likelihood of political temple advise for political purposes

in the event of the Minister being a Chairman of the

Advisory Committee. Therefore, though the Chairmanship

at the hands of the Minister does not by itself be considered

to be un constitutional or illegal but still it would be a

72

desirable thing to have head of non-political persons to

avoid politics in religious institutions. “

As regards the management of “notified Institutions” being

taken over by the State, it was opined thus:-

“63. Lot of arguments are advanced with regard

to notified institutions. At this stage, we must notice that

this Act is enacted to have a uniform law for regulation of

Hindu Religious Institutions. Government certainly has

the power in terms of the Constitution to enact a law for

better temple administration. In fact, the preamble to the

Act itself would say that this Act is to make better provision

for the management and administration of Hindu Religious

Institution. There are several Muzrai temples which, as

on today are rendering fairly good service. Temples and

mutts, apart from providing religious services are also

providing several welfare measures including food, shelter

and education. If such temples are already better

managed/administered, then why should such institutions

are to be notified for the purpose of having a Committee in

terms of the Act. Merely providing some assistance by

Government to them should not be understood as a right

over the temple for the purpose of administration in terms

of Article 25 of the Constitution.

64. Article 26(b) provides for a law with regard to

regulating or restricting any political and other secular

73

activities and providing for social welfare etc. But taking

over and providing administration in respect of the

Government temples, despite their better management

certainly would be in violation of not only Article 14 but

also under Articles 25 and 26 of the Constitution of India.

The State Government would be well advised to take over

such temple only in the event of an adverse report after an

opportunity against that temple. Taking all temples and

administering them without any adverse order, as rightly

argued would be hit by Article 26 of the Constitution of

India.

65. But however, the power to take over the

administration in the vent of mal-administration

financial/mismanagement certainly cannot be termed as

violation of Article 26(b) of the Constitution of India.

Therefore, the Government cannot in the guise of better

administration take over even the best administered

temple for the purpose of managing the temple without

justification. That would be certainly, as rightly argued,

in violation of article 26(b) of the Constitution. Therefore,

application of Section 23 in all temples without adverse

report in our view, would be in violation of Article 26(b) of

the Constitution of India.”

74

As regards the constitution of the Committee of

Management and exclusion of members of the Scheduled Caste

and Scheduled Tribes, it was held as follows:-

“66. The Constitution of the Committee of

management is provided under Section 25 of the Act. The

Committee consists of pradana archak or archak. At least

one member among Scheduled Caste and Scheduled Tribe.

Of the other, at least five of whom, two are women from

among the persons in the vicinity of the temple. The 2nd

proviso to Section 25(3) would show that it would not

apply to Hindu Religious denomination. We have in the

earlier part of our judgment shown that this Court has

made no distinction between Hindu denomination and

Hindus and hence exclusion of Scheduled Caste and

Scheduled Tribe from the Committee of management

insofar as Hindu Religious denomination is concerned

would be again hit by Article 14 of the Constitution of

India. Moreover, the Scheduled Caste and Scheduled

Tribe are to be a part of the Committee in the larger

interest of Hindu Community. Their exclusion in the case

of Hindu Religious denomination temples in our opinion

would be an arbitrary, unjustifiable treatment thereby

violating Article 14 of the Constitution of India.

67. Similarly, Section 25(4) provides for

qualification to be a member of the Committee. Section

25(4)(a) would say that a member should have faith in

75

God. It cannot be forgotten that he has to manage

temples and that therefore he should have faith in Hindu

religion as well. Similarly, Section 25(4)(d) provides for

membership only to those who have donated or contributed

for temple development. Why should a poor devotee be

excluded us ununderstandable. Similarly if a lawyer

appears for or against an institution, he is disqualified.

Therefore, from a reading of this section, what is clear to

us is that at least some of the classes would appear to be

arbitrary.”

The Division Bench had concluded thus :

“69. We have repeatedly ruled that Hindu religion

is one of the oldest religions available in India. It has the

backing of centuries old scriptures, belief etc. Those

believes, rituals, practices etc., are to be protected, unless

the same is totally opposed to any part of the Constitution

of India. Therefore, while on one hand, the religious

rights in terms of article 26 are to be protected and on the

other hand, maladministration, financial irregularities by

any religious institution has to be taken serious note of in

the larger interest of temple discipline itself. The State has

to draw a balance in maintaining temple discipline/temple

administration in terms of the Constitution of India. The

State unfortunately in the case on hand in the guise of

having a uniform law has been chosen to divide the religion

76

itself in terms of our earlier discussion. Since the very Act

is held to be discriminatory in its application, it is not

possible to severe other parts and hence the entire Act has

to be struck down as unconstitutional and we do so in the

case on hand. We also deem it proper to observe that the

intention of the Legislature seems to be a uniform law for

all Hindu Religious institutions. If that is so, as has been

done in Andhra Pradesh in terms of the Supreme Court, the

Government would be well-advised to have a religious

leaders/matadipathis/religious experts/ social reformer’s

and other experts and thereafter proceed to pass a uniform

law in terms of the judgment of the Supreme Court in Shri

Swamiji of Shri Admar Mutt’s case. The Government can

also think of having different regulatory measures for

temples/mutts/Jains etc. depending upon their religious

belief etc. and of course, within the four-corners of the

Constitution. However, it is for the Legislature to decide

the religious reformative law in terms of this policy of

uniform law for Hindu religions. We would leave it to the

Legislature to take a legislative decision in terms of the

Constitution. However, we deem it proper to observe that

the Government would be doing a great service to the

Hindu society by eliminating all the evil and corrupt

practices, if at all prevailing in Hindu Institutions. That

would go a long way in Hindu temple reforms.

5. Relief:

70. We have already ruled that the Act is hit by

Articles 14 and 26 of the Constitution of India. We have

77

further ruled that it is not possible to severe them. Hence,

we deem it proper to strike down the entire act and

consequently strike down the notification as

unconstitutional. However, if any action is taken in terms

of the Act prior to the date of the order, the same are

protected and this judgment would operate prospectively

from the date of this order. “

Keeping in view the above opinion expressed by this court,

we may examine the unamended provisions in relation to the

amended provisions as brought about by the 2011 and the 2012

Amendment Acts.

Reproduced below are the provisions of the Act, which

came in for direct consideration by the Division bench of this

court in Shri Sahasra Lingeshwara case, in holding the same to

be unconstitutional, as found in their unamended form and as

amended by the 2011 and 2012 amendments, in column 1,2 and 3,

respectively, in a tabular form:

78

Section as under the

Karnataka Hindu Religious

Institutions and Charitable

Endowments Act, 1997

(Karnataka Act 33 of 2001)

Section as amended vide

Act No.27/2011

Section as amended vide

Act No.12/2012

Section 1(4) : It shall not

apply –

(i) to a mutt or a temple

attached, thereto;

(ii) to any Hindu Religious

Institution or Charitable

Endowment founded,

organized run or managed by

Hindu Religious

Denomination.

Substituted as:-

"Section 1(4) It shall not

apply to a math or temple

attached to or managed by

math."

Substituted as:-

Section 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.”

Section 2 clause (16):

“Hindu” does not include a

Buddhist, Jain or Sikh;

Section 2 clause (16),

substituted as under:-

“(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.”

79

Section 17: Creation of

Common Pool Fund. - It shall

be lawful for the

Commissioner to create a fund

to be called the Common Pool

Fund out of.-

a) contributions made by the

Notified Institutions at five

percentum of their gross

annual income arrived at after

deducting the following,

namely,-

i) donations made as

contribution to the capital;

ii) amounts realized by sale of

jewels or other movable or

immovable properties

belonging to the institution;

iii) amounts received for

specified services or charities

where the service or charity is

performed.

b) Grants received from the

State Government.

In Section 17 of the principal

Act,-

(i) for the word

“Commissioner” the words

“Rajya Dharmika Parishat”

shall be substituted;

(ii) for clause (a), the

following shall be substituted,

namely:-

“(a) contributions made by

the notified or declared

institutions at the following

rate:-

(1) ten percent of the net

income in respect of

institutions whose gross

annual income exceeds

rupees ten lakhs;

(2) five percent of the net

income in respect of

institutions whose gross

annual income exceed rupees

five lakhs but does not exceed

rupees ten lakhs”.

Section 19(1):

Administration of Common

Pool Fund.- 1) The

Commissioner shall

administer the Common Pool

Fund subject to the conditions

herein stated and for the

following purposes, namely.-

(a) the grant of aid to any

other religious institution

which is poor or in needy

In section 19 of the principal

Act,-

(i) in sub-section (1),-

(a) for the word

“Commissioner”, the words

“Rajya Dharmika Parishat”


80

circumstances;

(b) the grant of aid to any

religious purposes connected

with the Hindu Religion;

(c)the propagation of the

religious tenets of the

institution;

(d) the establishment and

maintenance of Veda

Patashalas, agama Patashalas

and schools for training the

archakas, and for the study of

ancient scripts and Indian

languages for that purpose;

(e) the establishment and

maintenance of a university or

college or other institution

having for its object the study

of Hindu Religion, Philosophy

or Sastras or for imparting

instructions in Hindu temple

architecture;

(f) the establishment and

maintenance of educational

institutions where instructions

in the Hindu religion is also

provided;

(g) promotion of temple arts

and architecture;

(h) the establishment and

maintenance of orphanages for

Hindu children;

[(i) the establishment and

for clause (i), the following

81

maintenance of asylums for

persons suffering from leprosy

or other incurable disease;

(j) the establishment and

maintenance of poor homes

for destitute, helpless and

physically disabled persons;

(k) the establishment and

maintenance of Hospitals and

Dispensaries for providing

facilities to pilgrims;

(l)any other charitable or

Hindu Religious purpose.

shall be substituted,

namely:-

“(i) payment of terminal

benefits to the Archaks and

temple servants where there

is no sufficient fund at the

credit of the institution;”

In Section 19 of the

Principal Act, in sub-

section (1), after clause (l),

the following shall be

inserted, namely.—

“(m) for establishment and

promotion of goshalas by

Hindu Religious

Institutions or any Hindu

Organisation;

(n) to meet the objects of

the Act”.

Section 20: Constitution of the

Advisory Committee.-

1) The State Government shall

constitute for the State of

Karnataka a Committee to be

called the Advisory

Committee consisting of the

following Members, namely.-

Section 20 of the principal

Act, the following shall be

substituted, namely:-

“20. Rajya Dharmika

Parishat.-

(1) The State Government

may, by notification in the

official Gazette constitute the

Rajya Dharmika Parishat

consisting of the following

82

a) the Minister in charge of

Endowments who shall be the

Chairman, ex officio;

b) the Commissioner, who

shall be Member Secretary ex

officio, and

c) such number of non-official

members not exceeding nine,

nominated by the State

Government, from among the

religious leaders drawn from

various classes of Hindu

thought, both vedic and non-

vedic, of whom atleast one

each shall be from among the

Scheduled Castes or the

Scheduled Tribes and atleast

two shall be women.

2) The term of office of the

non-official members shall be

three years, and other matters

relating to the conduct of the

affairs of the Advisory

Committee shall be such as

may be prescribed.

members, namely:-

(a) Minister in Charge of

Hindu Religious, Institutions

and

Charitable Endowments

Chairman

(b) Secretary to Government

in charge of Hindu Religious

Institutions and Charitable,

Endowments - Vice

Chairman

(c) Commissioner, Hindu

Religious Institutions and

Charitable

Endowments - Ex-officio

Secretary

(d) Members to be nominated

by Government for a period

of three years

(i) One Retired District Judge

- Member

(ii) One Agama scholar -

Member

(iii) one vedic scholar -

Member

(iv) one person belong to SC

or ST - Member

(v) one person belonging to

backward classes - Member

(vi) one woman -Member

(vii) two others - Member

(2) The members nominated

by Government under sub-

section (1), except a retired

district

Judge, shall hold office

subject to the pleasure of

Government.



section (1), in clause (d),

for the words “three

years”, the words “four

years” shall be substituted.

83

(3) The member nominated

by Government shall be a

person who has contributed to

the Hindu Religious field but

shall not be an office bearer

of any political party in any

level.

(4) In the event of any

vacancy due to death,

resignation or otherwise, the

Government may

appoint a member for the

remaining period of the term

of such member.

(5) The Rajya Dharmika

Parishat may, for the purpose

of consultation, invite any

person having experience and

specialized knowledge or

expert

in any subject to attend its

meeting and every such

person is entitled to such

allowances as may be

prescribed.

(6) The Government may

delegate any of its powers

and functions other than the

power to make rules under

the provisions of the Act to

the Rajya Dharmika Parishat.

(7) In the absence of

Chairman, the Vice Chairman

shall preside over the meeting

of the

Rajya Dharmika Parishad.

84

(8) In the absence of

nominated member the

remaining members

constitute the Rajya

Dharmika Parishat.

(9) All the correspondence in

respect of or to the Rajya

Dharmika Parishat shall be

made by

or to the Secretary, Rajya

Dharmika Parishat including

the power to sue or be sued.

Section 22:

Functions of the Advisory

Committee.- It shall be the

function of the Advisory

Committee.-

a) to tender advise to the

Committees of Management

in case of disputes relating to-

i) observance of religious

practices;

ii) any other matter that may

be prescribed;

b) to approve proposals for

adoption of a Hindu Religious

Institution or Charitable

Endowment, whose annual

income is not more than five

thousand rupees, by a larger

Hindu Religious Institution,

Charitable Endowment or

Trust; and

c) to perform such other

Section 22 of the Principal

Act shall be omitted

85

functions as the State

Government may from time to

time specify.

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;

(a): all Charitable Institutions

and Hindu Religious

Institutions which on the date

of commencement of this Act

are in the sole charge of the

State Government or for the

benefit of which –

i) any monthly or annual

grant in perpetuity is made

from public revenues; or

ii) tasdik allowance under

section 19 of Mysore

Religious and Charitable

Inams Abolition Act, 1955 is

paid;

Section 23(e) All Hindu

Religious Institutions

registered under the Bombay

Public Trust Act, 1950, which

are in receipt of any monthly

or annual grant from public

revenues or any amount under

the Karnataka Certain Inams

(Abolition)Act, 1977;


Act,-

Clause (a), after the words

“State Government” the

words “under the

provisions of Mysore


Institutions Act, 1927” shall

be inserted;

(ii) for clause (e), the

following shall be


“(e) All Hindu Religious

Institutions registered under

the Bombay Public Trust Act,

1950;

(ee) All Hindu Religious

Institutions which are in

86

receipt of any monthly or

annual grant from public

revenue or any amount under

the Karnataka Certain Inams

(Abolition) Act, 1977.”

Section 24: Controlling

Authorities: 1) The

Commissioner shall be the

Chief Controlling Authority in

respect of all matters

connected with notified

institutions and he shall

perform such duties and

exercise such powers of

superintendence and control as

the State Government may by

rules impose or as the case

may be confer on him in

respect of all or any class of

notified institutions.

2) The Deputy Commissioner

shall subject to such terms and

conditions as may be

prescribed, be the immediate

controlling authority in respect

of notified institutions within

his jurisdiction.

3) The Assistant

Commissioner shall subject to

the authority of the Deputy

Commissioner perform such

duties and exercise such

powers as may be prescribed.


Act, in sub-section (1), for the

words “the Commissioner

shall be the Chief Controlling

Authority”, the words

“subject to the powers

and jurisdiction of the Rajya

Dharmika Parishat the

Commissioner shall be the

Chief Controlling

Authority” shall be

substituted.

After section 24 of the

principal Act, the following

shall be

inserted, namely:-

87

“24A. Appointment of

Executive Officer and term of

office.-

(1) The State Government or

the Commissioner as the case

may be, may appoint any

officer to be the Executive

Officer to a

notified institution or to a

group of notified institutions.

(2) The cadre of the

Executive Officer to be

appointed to the notified

institution may be, based

on the income of such

institution.

(3) The executive Officer

shall hold office for such term

as may be fixed by the State

Government and he shall

exercise such power and

perform such duties as may

be prescribed.

(4) The executive Officer

shall be deemed to

be a public servant within the

meaning of Section 21 of the

Indian Penal Code 1860.

Section 25: Constitution of

the Committee of

Management – (1) Subject to

any general or special order of

the State Government there

shall be constituted by the

prescribed authority a

committee of management


Act,-

(i) for sub-section (1), the

following shall be


“(1) There shall be

constituted by Rajya

Dharmika Parishat or Zilla

Section 25 of the Principal

Act shall be omitted and

after Section 25 so

omitted, the following

shall be inserted,

namely.—

“25. Constitution of the

88

consisting of nine members in

respect of one or more notified

institutions and different

authorities may be prescribed

in respect of different class or

classes of notified institutions.

(2)(a) The prescribed authority

shall while constituting the

Committee of Management

under sub-section (1) have

due regard to the religious

denomination to which the

institution or any section

thereof belongs.

(b) The procedure for

appointment of members to

the Committee of

Management, verification of

antecedents and other matters

shall be such as may be

prescribed.

(c) No person shall be eligible

to be appointed as a member

in more than one Committee

or Management, at one time.

Dharmika parishat a

committee of Management

consisting of nine members:

Provided that the committee

of management in respect of

notified institutions belonging

to religious denomination be

constituted by themselves

according to the usage and

practice prevailing therein as

on the date of commencement

of the Karnataka Hindu

religious

institutions and Charitable

endowments

Amendment)Act, 2011 and

the same shall be recognized

by the Rajya Dharmika

Parishat or the Zilla

Dharmika Parishat as the case

may be:

Provided further that every

Committee of Management or

Pancha Committee or

Dharmadarshi Committee or

Non-hereditary Trustees

constituted or appointed

under the repealed Acts who

were lawfully holding office

shall cease to hold office

from the date of the

commencement of the

Karnataka Hindu Religious

Institutions and Charitable

Endowments

(Amendment) Act, 2011.”

Committee of

Management.—

(1) There shall be

constituted, in respect of

one or more notified

institutions by the Rajya

Dharmika Parishat, if the

gross annual income of the

notified institutions

exceeds rupees twenty five

lakhs and the Zilla

Dharmika Parishat if the

annual income does not

exceed rupees twenty five

lakhs, a committee of

Management consisting of

not more than nine

members

from among the devotees

and followers of Hindu

Religious Institutions and

beneficiaries of the

charitable

institutions and it shall

consist of,-

(i) in the case of a temple

the Pradhan Archak or

Archak;

(ii) at least one among the

Scheduled Castes or

Scheduled Tribes;

(iii) two women;

(iv) at least one from

among the persons living

in the locality where the

institution situated:

Provided that in case of

composite institution

members from both Hindu

and other religion may be

89

appointed:

Provided further that the

Committee of

Management in respect of

notified institution be

constituted

according to the usage and

practice prevailing therein:

Provided also that every

committee of Management

or Pancha Committee or

Dharmadarshi

Committee or non

hereditary trustees

constituted or appointed

under the repealed Acts

who were lawfully

holding office shall cease

to hold such office from

the date of commencement

of the Karnataka Hindu


Endowment (Second

Amendment) Act, 2011.

(2) (a) The Rajya

Dharmika Parishat and

Zilla Dharmika Parishat,

while constituting the

Committee of

Management under sub-

section (1), shall have due

regard to the religious

denomination to

which the institution or

any section thereof

belongs.

(b) The procedure for the

constitution of Committee

90

(3) The prescribed authority

shall constitute the Committee

of Management from among

the devotees, donors and

followers of the Hindu

Religious Institutions or as

the case may be, the endowers

and the beneficiaries of the

Charitable Endowment in

such manner that it consists

of –

(i) in the case of a temple the

Pradhana Archaka or

Archaka;

(ii) atleast one member from

among the Scheduled Castes

or the Scheduled Tribes; and

in sub-section (3),-

(a) for the words “prescribed

authority”, the words “the

Rajya Dharmika Parishat or

the Zilla Dharmika Parishat

as the case may be” shall be

substituted;

of Management,

verification of

antecedents and other

matter if any, of the

member shall be done in

such manner as may be

prescribed;

(c) No person shall be

eligible to become a

member in more than one

Committee of

Management at

a time;

(d) No person, who is an

office bearer of any

political party at any level,

shall become a member of

the Committee of

Management.

(3) No person shall be

qualified for being

appointed as member of

the Committee of

Management of a notified

institution unless,-

(i) he has faith in God;

(ii) he has attained the age

of twenty five years;

(iii) he possesses good

conduct and reputation and

commands respect in the

locality in which

the institution is situated.

(4) A person shall be

disqualified for being

appointed or continuing as

a member of the

91

(iii) of the others, atleast five

of whom two are women,

from among persons living in

the vicinity of the temple:

Provided that the State

Government may relax the

condition of clause (iii) in

respect of any Notified

Institution or class of such

Institutions, so however that

the representation of women

members is not affected:

Provided further that the

condition of clause (ii) shall

not apply to Institutions

belonging to Hindu Religious

Denominations or sections

thereof.

(4) No person shall be

qualified for being appointed

as a member of the

Committee of Management of

a Notified Institution unless –

(a) he has faith in God;

(b) he has attained the age of

twenty-five years;

(c) he possesses good conduct

and reputation and commands

respect in the locality in which

the Institution is situate.

(d) he has donated or

for clause (iii), the following

shall be substituted, namely:-

“(iii) of the other, two are

women and at least one

member from among the

persons living in the locality

of the temple”.

in sub-clause (iii), for the

second proviso, the following

shall be


“Provided further that in case

of composite institution

members from

both Hindu and other religion

may be appointed”.

(iii) in sub-section (4), sub-

Committee of

Management of any

notified institution,-

(i) if he is declared as an

undischarged insolvent by

a competent court; or

(ii) if he is of unsound

mind and stands so

declared by a competent

court of law or if he is a

deaf or mute or is suffering

from virulent form of

leprosy or contagious

disease; or

(iii) if he has an interest

direct or indirect in

any subsisting lease of any

property or of any

contract made with, or is

in arrears of any kind due

by him to such institution;

or

(iv) if he is appearing as a

legal practitioner for or

against the institution; or

(v) if he has been

sentenced by a criminal

court for an offence

involving moral turpitude;

such

sentence not having been

reversed or offence

pardoned; or

(vi) if he has at any time

acted adverse to the

interest of the institution;

or

92

contributed for construction,

repairs, renovation or

development of any Hindu

Religious Institution or

Charitable Institution or for

the performance of utsavam or

any charitable cause in the

institution.

(5) A person shall be

disqualified for being

appointed or continuing as a

member of the Committee of

Management of any Notified

Institution -

(i) If he is declared as

undischarged insolvent by a

competent Court; or

(ii) if he is of unsound mind

and stands so declared by a

competent Court or if he is a

deaf or mute or is suffering

from leprosy or any virulent or

contagious disease; or

(iii) if he has an interest, direct

or indirect in any subsisting

lease of any property or of

any contract made with, or

any work being done for, the

institution, or is in arrears of

any kind due by him to such

institution; or

(iv) if he is appearing as a

legal practitioner on behalf of

or against the institution; or

(v) if he has been sentenced

by a Criminal Court for an

offence involving moral

turpitude, such sentence not

having been reversed or

offence pardoned;

(vi) if he has at any time

clause (d) shall be omitted.

(vii) if he is an office

holder other than Archaka

or a servant attached to or

a person in receipt of

any emolument or

perquisite from such

institution; or

(viii) if he is addicted to

intoxication, liquor or

drugs; or

(ix) if he is not a Hindu, or

having been a Hindu has

converted to any other

religion.

(5) If a member of the

committee of management

is or becomes subject to

any disqualification

under sub-section (4), he

shall automatically cease

to be such member.

(6) If any question arises

whether a member is

or has become subject to

any disqualification

under sub-section (4), the

Dharmika Parishat may

either suo-moto or on a

report made to it and after

giving an opportunity, of

being heard to the person

concerned decide the

question."

93

conducted adverse to the

interests of the institution;

(vii) if he is an office-holder

other than Archaka, or a

servant attached to or a person

in receipt of any emolument or

perquisite from such

institution; or

(viii) if he is addicted to

intoxication, liquor or drugs;

or

(ix) if he is not a Hindu; or

having been a Hindu has

converted to any other

religion.

(6) If a member of the

Committee is, or becomes

subject to any disqualification

under sub-section (5) he shall

automatically ceased to be

such member.

(7) If any question arises

whether a member is or has

become subject to any

disqualification under sub-

section (5) the prescribed

authority may either suo motu

or on a report made to it and,

after giving an opportunity of

being heard to the person

concerned, decide that

question.

After section 25 of principal

Act the following shall be

inserted, namely:-

“25A. Provision relating to

institution managed by

Hereditary Trustee.-

94

(1) No committee of

management shall be

constituted in respect of

the notified institutions

managed exclusively by

hereditary trustees. The

power of management shall

vest in such hereditary

trustee.

(2) If there is no legal heir to

succeed the office of the

hereditary trustee, the Rajya

Dharmika

Parishat or the Zilla

Dharmika Parishat, as the

case may be, shall constitute

the committee of

management as provided

under section 25.

(3) When a temporary

vacancy occurs in the office

of a hereditary trustee and if

there is a

dispute with regard to right of

succession to such office and

such vacancy cannot be filled

up immediately or when a

successor is a minor and has

no guardian fit and willing to

act or there is a

dispute regard to as to who is

entitled to succeed such

office, the Rajya Dharmika

Parishat may

appoint a fit person to

discharge functions of the

office of hereditary trustee

until the disability ceases

or another successor succeeds

95

to such office:

Provided that in making any

appointment, the Rajya

Dharmika Parishat shall have

due regard

to the claims of members of

the said family, if any entitled

to the succession.

25B. Power of the Deputy

Commissioner to settle

scheme for the administration

of

Charitable endowments and

to decide certain other

disputes.-

(1) When the Deputy

Commissioner has reason to

believe that in the interest of

the proper administration of

Charitable endowments

or a endowment attached to

any notified institution or

declared institution, a scheme

shall be settled for such

endowment or when not less

than five persons having

interest make an

application in writing stating

that in the interest of the

proper administration of the

endowment, a scheme shall

be settled for it, the Deputy

Commissioner shall on

consultation with the Trustee

or the Committee of

Management or the persons

having interest and if, after

such consultation he is

96

satisfied that is it necessary or

desirable to do so, he shall by

order, settle a scheme of

administration of such

Charitable endowment or

endowment.

(2) The scheme settled under

this section for the

administration of Charitable

endowments

may include certain provision

for,-

(i) constitution of a body for

the purpose of assisting in the

administration of such

Charitable endowments;

(ii) the method of selection of

members for such committee

from the persons having

interest in such endowments;

(iii) defining the powers and

duties of the committee;

(3) The Deputy

Commissioner may determine

the properties of the

endowment and the list of

such properties shall be

appended to the scheme as a

schedule.

(4) The Deputy

Commissioner may at

anytime after consulting

trustees or committee by

order modify or cancel any

scheme in respect of

97

an endowment which is in

force and settled under sub-

section (1) or any scheme in

force settled or modified by

any courts or any earlier

enactments:

Provided that such

cancellation or modification

of a scheme in force settled or

modified earlier shall be

made only subject to such

conditions and restrictions as

may be imposed by the

Deputy

Commissioner.

(5) If the Deputy

Commissioner is satisfied that

any such scheme referred to

in sub-section

(1) is inconsistent with the

provisions of this Act and

rules made thereunder he

may, at anytime modify it in

such a manner as may be

necessary to bring it into

conformity with the

provisions of this Act and

rules made there under.

(6) Whenever any question

arises as to,-

(i) whether a particular

property is the property of a

notified institution or

declared institution under the

Act; or

(ii) whether any property or

money is either a religious

98

endowment or specific

endowment; or

(iii) whether any Archak or

temple servant holds or held

an office in any notified

institution or declared

institution on the basis of a

hereditary right; or

(iv) whether any person is

entitled by custom or

otherwise to any honour,

emolument or perquisite in

any religious institution; and

what is the existing usage of a

notified or declared

institution; or

(v) whether any institution or

endowment is wholly or

partly of a religious or of

secular character and whether

any property

or money has been given

wholly or partly for religious

or secular purpose; or

(vi) where any property or

money has been given for the

support of an institution

which is partly of a religious

and partly of a secular

character or the

performance of any service or

charity connected with such

an institution or the

performance of a charity

which is partly of a religious

and partly of a secular

character

99

or where any property or

money given is appropriated

partly to religious and partly

to secular purposes, as to

what portion of such property

or money shall be allocated to

religious purpose; or

(vii) to accord sanction of

dittam and seva list in respect

of notified institutions having

gross annual income of

rupees one lakh and above

but below Rupees ten lakhs;

or

(viii) any dispute between the

servant of a notified

institution and the committee

of management. - the Deputy

Commissioner after hearing

the parties concerned shall by

order decide it.

(7) Any person aggrieved by

any order passed by the

Deputy Commissioner under

any of the foregoing

provisions, shall appeal

within one month of the date

of receipt of the order to the

Commissioner.

(8) The Commissioner may

after hearing the aggrieved

person and other contending

parties,

pass appropriate order in

accordance with law.”

Section 26: Term of office of

the Committee of


Act,-

100

Management and Election of

Chairman – (1) Subject to the

pleasure of the prescribed

authority, members shall hold

office for a term of three years

unless in the meanwhile the

Committee is dissolved or has

ceased to function.

(2) Where the Committee of

Management is constituted

under Section 25, the

members shall at the first

meeting of the Committee

elect a Chairman from among

themselves.

(3) The State Government

may nominate the Executive

Officer as exofficio Secretary

of the Committee of

Management in respect of

notified institution or

institutions, without voting

rights.

(4) Notwithstanding anything

to the contrary contained in

sub-sections (1), (2) and (3)

above, where any Charitable

Institution or Hindu Religious

Institution was, immediately

before it is included in the list

of Notified Institution under

Section 23, managed by the

founder of such institution or

any member of his family,

such founder and in his

absence any member of his

family shall, unless he is

otherwise disqualified under

Sub-section (1), for the words

"prescribed authority", the

words "Rajya Dharmika

Parishat or Zilla Dharmika

Parishat as the case may be"


(2) for sub-section (4), the

following shall be


“(4) in case of notified

institutions managed by more

than one hereditary

trustee or founder trustee, the

chairman shall be elected in

accordance with such

procedure as may be

prescribed.”



section (3), after the words

“the State Government”,

the words “or the

prescribed authority” shall

be inserted.

101

Section 25, be nominated as

Chairman of the Committee of

Management of such Notified

Institution.

Section 27: Meeting of the

Committee of Management-

The Committee of

Management shall meet at

such intervals and follow such

procedure in conducting its

meetings, as may be

prescribed.

Section 28. Power to dissolve

the Committee of

Management – (1) the

prescribed authority shall

have power to dissolve a

Committee of Management if

after holding an inquiry in

accordance with sub-section

(2), it is satisfied that the

committee has, -

(a) failed to discharge the

duties or perform the

functions in accordance with

the provisions of this Act or

the rules made thereunder, or

(b) disobeyed any lawful

orders issued under the

provisions of this Act or the

rules made thereunder by the

State Government or the

Commissioner, Deputy

Commissioner or Assistant

Commissioner; or

(c)committed any malfeasance

in section 28 of the principal

Act,-

Sub-section (1),-

for the words "prescribed

Authority", the words "Rajya



may be” shall be substituted;

and

after the words "committee of

Management", the words

"including a member or

hereditary trustee" shall be

inserted;

102

or misfeasance or is guilty of

breach of trust or

misappropriation in respect of

the properties of the institution

or endowments;

(2) Where the prescribed

authority proposes to take

action under sub-section (1) it

shall frame the charge against

the Chairman and give him an

opportunity of meeting such

charge or testing the evidence

adduced against the charge

and of adducing evidence in

favour of the Committee; and

the order of dissolution shall

state every charge framed

against the Committee,

explanation offered by the

Committee and the finding on

such charge together with the

reasons therefor.

(3) Pending enquiry under

sub-section (2) the prescribed

authority may suspend the

Committee and appoint an

administrator in accordance

with Section 29.

(4) Any person aggrieved by

an order under this section

Sub-section (2),-


Authority", the words "the



as the case may be" shall be

substituted; and

after the words "committee"

wherever they occur, the

words "including a member

or hereditary trustee" shall be

inserted;

(3) in sub-section (3),-


Authority", the words "Rajya



may be" shall be substituted;

and

after the words, "committee"

the words "including a

member or hereditary trustee"

shall be inserted;

(4) sub-section (4) shall be

omitted.

103

may, within thirty days from

the date of communication of

the order appeal .-

(a) to the Karnataka Appellate

Tribunal constituted under the

Karnataka Appellate Tribunal

Act, 1976 (Karnataka Act 10

of 1976), where the prescribed

Authority is the

Commissioner;

(b) to the Commissioner, if the

order passed is of the Deputy

Commissioner; and

(c) to the Deputy

Commissioner, if the order

passed is of the Assistant

Commissioner.

(5) The Appellate Authority

may after holding an enquiry

and so far as possible within

six months from the date of

appeal pass such order as it

deems fit, and such order shall

be final.


Principal Act, sub-section

(5) shall be omitted.

Section 29. Appointment of

Administrator – The

prescribed authority shall

appoint an officer of the State

Government as Administrator

in place of the Committee of

Management dissolved or

suspended under sub-section

(1) or (3) of Section 28 or

after the expiry of the term of

office of the Committee under

Section 26 and till a new

Committee of Management

is constituted or for a period

of six months whichever is


Act,-

(a) for the words "prescribed

Authority", the words "the


the Zilla Dharmika Parishat"

shall be substituted; and


Principal Act, after the

words

and figures “after the

expiry of the term of office

of the Committee under

Section 26”, the words “or

for any other reasons”

shall be inserted.

104

earlier.

(b) the following proviso

shall be inserted at the end,

namely:-

"Provided that for the reasons

to be recorded in writing the

Rajya Dharmika

Parishat or Zilla Dharmika

Parishat, by order extend the

said period by any further

period, not exceeding six

months at a time. So

however, the said period shall

not exceed one year in total."

Section 30 Filling up of

casual vacancies.- When a

vacancy occurs, either by

removal, resignation or

otherwise, of a member of the


a notified institution, the

prescribed authority shall,

subject to the provisions of

section 25 fill up the vacancy

by appointing a new member

to the Committee. Such

member of the Committee

appointed shall hold office

only so long as a member in

whose place he is appointed

would have been entitled to

hold office in the vacancy had

not occurred.


Act, for the words

“prescribed

authority”, the words “the



as the case may

be” shall be substituted.

Section 42: Declared

Institutions:- The State

Government may, where it is

satisfied on a report of the

Commissioner under Section

43 or otherwise that any

Hindu Religious Institution,

105

whether or not governed by a

settled scheme, is being

mismanaged, declare such

institution to be subject to the

regulation of this chapter.

Provided no such

declaration shall be made

without following the

procedure hereinafter

specified.

Section 43: Notice to show

cause:- 1) Where the

Commissioner has reason to

believe that a Hindu Religious

Institution whether or not

governed by a settled scheme

is being mismanaged and he is

satisfied that in the interest of

its administration, it is

necessary to take proceedings

under this chapter, he may, by

notice published in the

prescribed manner, call upon

the Manager and all other

persons having interest, to

show cause why such

institution should not be

declared to be subject to the

provisions of this Chapter.

2) Such notice shall state the

reasons for the action

proposed and specify a

reasonable time, not being less

than one month from the date

of issue of the notice, for

showing such cause.

3) The Manager or any

person having interest may

106

thereupon prefer his

objections, if any, to the issue

of a declaration under this

chapter.

4) Such objections shall be

in writing and shall reach the

Commissioner before the

expiry of the time specified in

the notice aforesaid or within

such further time not

exceeding forty five days on

the whole as may be extended

by the Commissioner.

5) Where no objections are

received within the time so

specified or extended, the

State Government may, on

receipt of a report from the

Commissioner to that effect,

by a notification published in

the official Gazette declare

such Hindu Religious

Institution to be subject to the


6) Where objections are

received within the time so

specified or extended, the

Commissioner may authorize

any officer subordinate to him

to hold an enquiry into the

objections in the manner

prescribed who shall after

giving the Manger or any

person having interest an

opportunity of being heard

submit his enquiry report to

the Commissioner as to

whether or not the institution

107

should be declared to be

subject to the provisions of

this chapter.

7) After considering the

enquiry report referred to in

sub-section (6), if the

Commissioner decides that the

Institution should be declared

as aforesaid, he shall make a

report to that effect to the

State Government, which

may, by notification declare

such Hindu religious

Institution to be subject to the


8) Every Notification issued

under sub-section (5) or (7)

shall remain in force for such

period as may be specified

therein and which may be

extended further, so however

that the total period shall not

exceed five years from the

date of the first notification, or

till a new Committee of

Management is formed to the

satisfaction of the State

Government whichever is

earlier.

9) Where a new Committee

is formed to the satisfaction of

the State Government, the

State Government may on its

own or on the report of the

Commissioner direct the

Executive Officer appointed

for the institution to handover

the management of the

108

Institution to the new

committee of Management.

Section 44: Effect of

Declaration: Where any Hindu

Religious Institution is

declared under Section 42, the


the Institution by whatever

name called shall from the

date of such declaration stand

dissolved and its

administration shall vest in the

State Government to be

regulated in the manner

hereinafter provided.

Section 45: Appointment of

Salaried Executive Officer:-

For every Institution declared

under this Chapter, the

Commissioner shall, as soon

as may be after the declaration

is issued appoint a salaried

Executive Officer for the

proper administration of the

Institution.

Section 46: Term of office and

duties of Executive Officer:-

1) The Executive Officer shall

hold office for such term as

may be fixed by the

Commissioner and he shall

exercise such power and

perform such duties as are

assigned to him by the

Commissioner:

Provided that only such

powers and duties as relate to

109

the administration of the

properties of the religious

institution shall be assigned to

the Executive Officer.

2) The Executive Officer

shall be deemed to be a public

servant within the meaning of

section 21 of the Indian Penal

Code, 1860.

Section 47: Action against

Executive Officer:- The

Commissioner, may for good

and sufficient cause, suspend

an executive officer or initiate

disciplinary proceedings

against him for any

misconduct in accordance

with the Karnataka Civil

Services (Classification,

Control and Appeal Rules)

1957.

Section 48: Application of the

Provisions of Chapters VI and

VII in certain cases:-

Notwithstanding anything

contained in sub-section (8) of

section 43, the State

Government may while

passing orders under sub-

section (7) or during currency

of the notification issued

under sub-section (5) or (7)

thereof declare, for reasons to

be recorded in writing, that in

respect of any Declared

Institution, the provisions of

Chapter VI and VII shall

apply as if the institution is a

110

notified institution under

section 23:

Provided that no such

declaration shall be made

except after further notice is

issued for the purpose, to the

Institution concerned.

Section 49: Power of

Commissioner to issue

directions:- 1) Without

prejudice to the generality of

powers granted under Section

3 and subject to other

provisions of this Act, the

Commissioner shall have

power to issue general or

special directions to the

Chairman or Executive

Officer or any person

connected with the

Management of a Notified

Institution or a Declared

Institution to ensure that the

Institution is properly

administered and the income

thereof is properly accounted

for or duly appropriated and

applied towards the objects

and purposes of the institution

and the Commissioner may

also give appropriate

directions to such person if he

finds that any property of the

Institution is in danger of

being wasted, damaged,

alienated or wrongfully sold,

removed or disposed off.

2) It shall be the duty of

111

every person to whom such

directions are issued to

comply with the directions

issued under sub-section (1).

It may be noticed that the Division bench of this court has

categorically opined that the exclusion of maths, from the purview

of the Act, is in violation of Article 14 of the Constitution of

India. The object of the Act was to bring in a uniform law for all

Hindu religious institutions in the State and hence the exclusion

of a math, and temples managed by maths, from the purview of

the Act being discriminatory was emphasized. It is however, seen

that in both Act no.27/2011 or Act no.13 of 2012, maths and

temples attached to or managed by maths, remain excluded from

the purview of the Act.

And in spite of an assurance by the State in its appeal

pending before the Supreme Court, as to a proposal to bring

maths and temples managed by maths, within the purview of the

Act, the State has religiously ensured that the same are kept out of

112

the purview of the Act by repeated amendments as is seen from

the tenor of Section 1( 4), as it originally stood and as amended .

The non - application of the Act to a Hindu Religious

institution or charitable endowment founded, organized, run or

managed by Hindu religious denomination was held to be contrary

to the settled position, by the judgment of the Division Bench. It

was held that all sections of Hindus constitute a religious

denomination within the meaning of Articles 25 and 26 of the

Constitution of India and that in matters concerning temple

administration, the State could not discriminate between temples

managed by a Hindu religious denomination vis-a-vis, a temple

managed by a Hindu religious institution.

Though the State has now chosen to delete the offending

clause (ii) of sub-section (4) of Section 1 of Act 33 of 2001, which

expressly indicated the non- application of the Act to any Hindu

Religious Institution or Charitable Endowment managed by a

Hindu Religious Denomination,- the State has chosen to define a

Hindu Religious Denomination under Section 2(16) of Act no. 3

113

of 2012, by adopting the definition of a religious denomination as

contained in the Oxford Dictionary, without indicating whether

the Act would apply to such a denomination or not. According to

the contention put forth by Shri M.N.Rao, there are several

denominations within the fold of the Hindu religion and this,

according to him is stated by the Apex court in the Shirur Math

case, AIR 1954 SC 282. And by implication it is sought to be

contended that an institution managed by a Hindu Religious

Denomination is distinct and different from an institution

managed by a Hindu Religious institution.

In the said case referred to above, however, it is seen that

the court was answering a contention that a math does not come

within the description of a religious denomination as provided for

in Article 26 of the Constitution of India and even if it does, what

cannot be interfered with was its right to manage its own affairs in

matters of religion. The same is answered thus by the Apex

Court:

114

“15. As regards Article 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

same name : a religious sect or body having a common

faith and organisation and designated by a distinctive

name." It is well know that the practice of setting up Maths

as centers 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. Each one of such sects or sub-sects can

certainly be called a religious denomination, as it is

designated by a distinctive name, - in many cases it is the

name of the founder, - and has a common faith and

common spiritual organization. The followers of

Ramanuja, who are known by the name of Shri Vaishnabas,

undoubtedly constitute a religious denomination; and so do

the followers of Madhwacharya and other religious

teachers. It is a fact well established by tradition that the

Udupi Maths were founded by Madhwacharya himself and

the trustees and the beneficiaries of these Maths profess to

be followers of that teacher. The High Court has found that

the Math in question is in charge of the Sivalli Brahmins

who constitute a section of the followers of Madhwacharya.

115

As Article 26 contemplates not merely a religious

denomination but also a section thereof, the Math or the

spiritual fraternity represented by it can legitimately come

within the purview of this Article.

It is therefore not evident that a Hindu Religious

denomination would not fall with in the fold of a Hindu Religious

institution. To wit , a math would be a Hindu religious institution

, albeit that a spiritual fraternity represented by it is regarded as a

Hindu religious denomination, as in the above case. The assertion

that Hindus are not a religious denomination is untenable.

Further, the said sub-section (16) of Section 2, seeks to

substitute the same. It originally read as follows :

" Section 2(16): "Hindu" does not include a Buddhist,

Jain or Sikh; "

It was held by the Division Bench that such exclusion of

Buddhists, Jains and Sikhs , from the definition of the expression

"Hindu",suffers from violation of Article 14 of the Constitution of

India

116

There is no indication of including Buddhists, Jains or

Sikhs under the definition of "Hindus", by the subsequent

amendments.

In so far as the creation of a Common Pool Fund and the

contributions to be compulsorily made from the same at a

prescribed percentage for the purposes which were spelt out, the

Division Bench has held that though the Hindu religion does not

prohibit such contribution, it would still be desirable that such

amount is spent exclusively for the Hindu institutions. Except for

minor tinkering which does not address the concern of this Court,

as expressed therein, there are no significant changes in the

provision.

The Division Bench has held that though the Chairmanship

of the Advisory Committee, in terms of Section 20 of the Act,

could not by itself be unconstitutional or illegal it was expressed

that it would be desirable to have a head without any political

affiliations to avoid politics in religious institutions. But there is

no change in the constitution of the Committee in that regard.

117

As regards Notified institutions contemplated under the Act,

the view expressed by the Division bench was to the effect that

though the State government would have the power to enact a law

for the better administration of temples. When it is apparent that

there are several temples and institutions which, apart from

providing religious services, were also providing laudable social

welfare measures, and were being managed in an efficient and

transparent manner - the wisdom of notifying such institutions to

be governed by a Committee was held to be inexplicable. It was

held to be violative of Article 14 and Articles 25 and 26 of the

Constitution of India. However, there is no change to the said

scheme.

As regards the constitution of the Committee of

Management as provided under Section 25, the Division bench

has noticed that the second proviso to Section 25(3) of the

unamended Act showed that it did not apply to Hindu Religious

Denominations, or in other words members of the Scheduled

Castes and Scheduled Tribes were excluded from the membership

118

of the Committee of management of a Hindu Religious

Denomination. This was held to be violative of Article 14 of the

constitution of India. And that there was no distinction between a

Hindu denomination and Hindus. Act no.13 of 2012, which omits

Section 25 and inserts a new Section 25, suffers from the same

infirmity. In that, the second proviso to Sub- section (1) of

Section 25 provides thus :

"Provided further that the Committee of

Management in respect of notified institution be

constituted according to the usage and practice prevailing

therein"

By reference to an alleged usage or practice in a notified

institution a member of a Scheduled caste or a Scheduled Tribe,

can be indefinitely denied membership.

And more particularly, it is categorically spelt out thus in

Section 2 (a) of Section 25, thus :

“The Rajya Dharmika Parishat and Zilla

Dharmika Parishat, while constituting the Committee

of Management under sub-section (1), shall have due

119

regard to the religious denomination to which the

institution or any section thereof belongs.”

Hence, the same mischief is perpetrated in denying

membership to members of the Scheduled Castes and Scheduled

Tribes , if the usages and practices of an institution managed by a

Hindu Religious Denomination - did not permit such persons from

becoming members of their committee of management.

In the light of the above picture that emerges, in the

amended provisions of the Act, being more or less of the same

tenor as were the unamended provisions - which were held to be

unconstitutional by this Court in Shri Shasara Lingeshwara, point

nos.1 & iii are answered in the affirmative.

In so far as points nos.(iii) and (iv) are concerned, if the

law passed by a Legislature is struck down by the Courts as

being invalid for one or the other reason, it would be competent

for the appropriate Legislature to cure the said infirmity and pass

a validating law so as to make the provisions of the said earlier

law effective from the date when it was passed. (See: Rai

120

Ramakrishna vs. State of Bihar, AIR 1963 SC 1667). The

Legislature can pass a retrospectively validating action taken

under a law which was void because it contravened fundamental

rights. If the legislature can by retrospective legislation, cure the

invalidity of action taken in pursuance of laws which are void for

want of legislative competence and can validate such action by

appropriate provisions, the same power can be effectively

exercised by the Legislature for validating action taken under laws

which are void for the reason that they contravened fundamental

rights. (See: West Ramnad Electric Distributioon Co. Ltd. vs.

State of Madras, AIR 1962 SC 1753). It was held that Legislature

can change the basis on which a decision is given by the Court,

and thus change the law in general, which will affect a class of

persons and events at large. The Legislature can render judicial

decisions ineffective by enacting a valid law on the topic within

its legislative field fundamentally altering or changing its

character retrospectively. The changed or altered conditions

should be such that the previous decision would not have been

121

rendered by the Court; if those conditions had existed at the time

of declaring the law as invalid. It is also empowered to give effect

to retrospective legislation with a deeming date or with effect

from a particular date. (See: Indian Aluminium Company vs. State

of Kerala, AIR 1996 SC 1431).

And it is also laid down by the Apex court in Grand

Kakatiya Sheraton Hotel and Towers Employees and Workers

Union vs. Srinivasa Resorts Limited and others, (2009) 5 SCC

342, in a situation where in circumstances that a statute is held to

be unconstitutional, the offending provisions are sought to be

reintroduced with cosmetic changes, as in the present case on

hand, thus:

“62. Section 40(3) is clearly comparable to

Section 47(3) and also Section 47(4), as the last part

of that section is identical with the wording in

Section 47(4). The only difference which we find is

that instead of the word “gratuity”, the terminology

of “service compensation” is substituted. In our

opinion, the High Court was right in opining that a

mere cosmetic amendment could not have been made

122

by way of introduction of Sections 47(3) and 47(4). It

was tried to be argued before us that in the present

1988 Act, the mischief pointed out by the High Court

in the earlier Section 40 (3) of the 1966 Act has been

remedied. We are unable to agree with such an

argument. We do not see as to how and in what

manner, the mischief has been remedied.

xxx

64. The High Court also noted that the

provisions of Sections 47(3) and 47(4) were nothing,

but a cosmetic amendment to the earlier Section

40(3). It is, therefore, clear that no attempt has been

made, whatsoever, to point out (sic remedy) the

mischief found by the High Court in Section 40(3) of

the 1966 Act.

xxx

70. The High Court found that instead of

remedying the defects point out in Suryapet Coop.

Mktg. Society Ltd. v. Munsif Magistrate, (1972) 2 An

LT 163 a cosmetic change was made by raising the

period of six months to one year. We are, therefore,

unable to accept the submission of the learned

counsel for the appellant that the High Court

proceeded on to decide the constitutionality on the

basis of a comparison. We do not, therefore, see

how the aforementioned judgment in State of M.P. v.

G.C.Mandawar, AIR 1954 SC 493, can be of any

application and help to the present case.”

123

Thus, it can be safely said that not only was the amendment,

brought about by Act no.13 of 2012, bad in law for the above

reason but also for the reason that the Supreme court having

granted an interim Order of Stay of the judgment of the Division

bench of this court by an Order dated 2.4.2007 and again having

modified the same, thereby vacating the interim order in so far as

Section 25 of the Act, was concerned. The Section could not have

been reintroduced in its avatar as contained in Act no.27 of 2011,

which came into force with effect from 04.05.2011 or as contained

in Act no.13 of 2012, which came into force with effect from

05.03.2012, at least in so far as Section 25 of the Act was

concerned.

It is noticed that the specific challenge to Act no.13 of 2012

is only in the form of an application filed in the petition in WP

64805-868, seeking to raise an additional prayer - to declare and

strike down the said Act as void and inoperative- on the footing

that the very grounds on which the 2011 Amendment Act is

124

challenged in the batch of petitions would equally apply to the

said Act.

The said application is formally allowed, as it is found by us

that the above said broad assertion is indeed acceptable, as already

found by us herinabove.

The fact that the Apex Court has expressed in its order

dated 24.3.2015 that the Act would be in force , till the disposal of

the appeal pending before it - is not with reference to the 2011 or

the 2012 Amendment Acts, but is with reference to Act 33 of

2001. Since we are in agreement with the views expressed by the

Division Bench of this court in Shri Sahasra Lingeshwara case,

our work was cut out to only address whether the legislative

exercise by the State to repeatedly amend the Act has only

resulted in reiterating the very provisions which were held to be

unconstitutional, the need for elaborate pleadings in that regard

was hardly necessary. There is essentially little difference

between the unamended Act and the amended Acts in so far as the

offending provisions are concerned. The incidental contention

125

that sub- Section 2(d) of Section 25 excludes office-bearers of

political parties and hence the Section is completely altered, for

instance, is not at all a convincing claim. To introduce and thrust

a political 'big-wig' on a cash rich and influential religious

institution could be achieved with ease by calling upon him to

resign as an office bearer, temporarily.

In so far as the other contentions on merits are concerned,

given the limited challenge to the amendment Acts being on the

limited aspect as aforesaid, it would be unnecessary to address the

same on merits. Accordingly, the writ petition in WP 65648-

680/2011 is allowed along with the application for amendment,

seeking an amendment in the main prayer, to include a challenge

to Act no. 13 of 2012.

Accordingly, it is declared that the Karnataka Religious

Institutions and Charitable Endowments (Amendment ) Act, 2011

and the Karnataka Religious Institutions and Charitable

Endowments (Amendment) Act, 2012, as being discriminatory,

violative of Constitutional rights and are accordingly struck down

126

in entirety. The other reliefs sought for by the petitioner are

irrelevant.

In the result, the petitions in WP 64805-64868/2011,

WP 72157/2012, WP 80796-80822/2013 and WP 65539/2012 are

disposed of in the light of the decision in WP 65648- 680/2011.

Sd/-

JUDGE

Sd/-

JUDGE

nv*

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