the honourable mr.justice anand byrareddy and …...shri prabhakar b chopade. 4. shri shanishawar...

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:

1. State of Karnataka,

Represented by Chief Secretary,


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

the honourable mr.justice anand byrareddy and …...shri prabhakar b chopade. 4. shri shanishawar...

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