2013 Supreme(Kar) 8

High Court of Karnataka
DILIP B. BHOSALE, J.
Vidya Manohara Teertha Swamigalu Peethadipathy & Another
Versus
The State of Karnataka represented by its Chief Secretary Vidhana Soudha & Others
Writ Petition Nos.17370 of 2012 & 17391 of 2012 (GM-R/C)
Decided on : 02-01-2013

Headnote:INTERPRETATION OF STATUTES - Repeal of an enactment: [Dilip B. Bhosale, J] Held, It is well settled that a distinction exists between a repeal simpliciter and a repeal by an Act which is substituted by another Act. Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the Karnataka General Clauses Act will follow unless, as the Section itself says, a different intention appears. In the case of a simple repeal, there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject, one would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention.

       KARNATAKA HINDU RELIGIOUS INSTITUTIONS AND CHARITABLE ENDOWMENTS ACT, 1997 - Section 2(16): [Dilip B. Bhosale, J] Right of matadhipathi to administer mutt properties - Held, The rights which are conferred upon Mutt/denomination cannot be termed as a fundamental right of matadhipathi, who is the head of spiritual fraternity, Article 26 of the Constitution clearly provides that every "religious denomination" or "any section thereof shall have the right to establish and maintain institution for religious and charitable purpose to manage its own affairs in the matter of religion; to own and acquire moveable and immoveable property; and to administer such property in accordance with law. The word "denomination" as defined in clause 16 of the new Act means a collection of Hindu individuals or devotees classed together under the same name, a Hindu religious sect or sub-sect or body or a section thereof or a spiritual fraternity represented by it having a common faith, rituals, observances, ceremonies and mode of which is designated by a distinctive name. Mathadipati/Peethadiati could be, at the most, a part of the religious denomination or their representative. Even if it is accepted that he has the right to administer the mutt properties, his right is as custodian or as the manager or as administrator for the benefit of devotees/denomination and it cannot be regarded as the right to property or his fundamental right under the Constitution.

       KARNATAKA HINDU RELIGIOUS INSTITUTIONS AND CHARITABLE ENDOWMENTS ACT, 1997 - Sections 26 & 27: [Dilip B. Bhosale, J] Powers of State Government to appoint Administrator to Vyasaraya Mutt (Sosale), T. Narasipur - Held, A conjoint reading of sub-section (4) of Section 1 of the new Act and the definitions of "Hindu religious denomination" [(2(16)] and "Mutt", [2 (19A)] it is clear that the legislature excluded Mutts from application of the provisions contained in the new Act. The action/proceedings initiated for holding an enquiry in pursuance of the order passed by this Court under the old Act and taking over the management of the Mutt on the basis of the report of the committee can be said to be saved under Section 78 of the new Act. Having examined the provisions contained under Section 78 in the light of the other provisions of the new Act, it was not an intention of the legislature to terminate even the proceedings which were initiated before the repeal pursuant to the provisions contained in the old Act, in particular Sections 26 and 27 thereof. Matadipathi/Peetadipathi could be, at the most, a part of the religious denomination or their representative. Even if it is accepted that he has the right to administer the mutt properties, his right is as custodian or as the manager or as administrator for the benefit of devotees/denomination and it cannot be regarded as the right to property or his fundamental right under the Constitution. In the present case even if it is accepted that some right, by the impugned action, has been contravened, it is the right of Matadipathi and not of denomination. The rights conferred under Articles 26 and 300-A can be claimed by religious denomination or any section thereof and not by any individual, such as matadhipathi, who at the most, is only a part of the denomination or who is supposed to be only the head of spiritual fraternity and supposed to perform the duties of a religious teacher. His duty is to practice and propagate the religious tenets of which he is an adherent. The matadipathi at the most occupies the position of a trustee with regard to Mutt, which is a public institution. Undoubtedly, some amount of control or supervision over the due administration of the Mutt and due appropriation of its funds is certainly necessary in the interest of public. An appointment of administrator to manage the properties of Mutts, therefore, would not offend any fundamental right of the matadipathi. In other words the matadipathi, though has some amount of control or supervision over the due administration of the Mutt, he does not become owner of the properties of Mutts and therefore, the question of deprivation of property by merely appointing an administrator at the request of the devotees/denomination does not arise and it would not amount to taking away the fundamental rights guaranteed under Article 26 of the Constitution. Suggestion made to Government to consider whether Mutts could be brought within the purview of new Act and/or to bring some enactment so as to keep control over non-religious functions of the Mutt and to avoid mismanagement of properties and misappropriation of its funds.

       KARNATAKA HINDU RELIGIOUS INSTITUTIONS AND CHARITABLE ENDOWMENTS ACT, 1997 - Section 78: [Dilip B. Bhosale, J] Scope - Enquiry Proceedings commenced under Sections 26 & 27 of Mysore Hindu Religious Institutions & Charitable Endowments Act, 1927 (old Act) - No express provision in Section 78 of new Act for continuance of such proceedings after repeal of old Act -However, no different intention of legislature appearing either in Section 78 or any other provision of new Act - Held, Therefore, Section 6 of Karnataka General Clauses Act gets attracted. Proceedings under Old Act are saved under Section 78(2) of new Act.

       MYSORE HINDU RELIGIOUS INSTITUTIONS & CHARITABLE ENDOWMENTS ACT, 1927 (SINCE REPEALED) - Sections 26 & 27: [Dilip B. Bhosale, J] Order of taking over of management of institution or appointment of administrator - Held, The provisions of Sections 26 & 27 do not provide for or suggest an opportunity needs to be a double opportunity, i.e., at the stage of an enquiry contemplated by Section 26 and again while taking over the management of the institution as contemplated by Section 27. Looking at these provisions from any angle, fresh opportunity for taking over the management as contemplated by Section 27 is not necessary and the principles of natural justice stand satisfied/ fulfilled if the opportunity was given during the enquiry contemplated by Section 26.

        Thus, where the Enquiry Committee, constituted by the Government and which conducted the enquiry, had issued show cause notice to the petitioner; the petitioner replied to the show cause notice and was allowed to produce evidence in support of his case; and after hearing the advocate on their behalf submitted its report to the Government and the petitioner did not make any grievance of whatsoever of nature of any breach of the rule of natural justice being committed by the Enquiry Committee in the course of enquiry contemplated under Section 26 of the old Act and the order of appointing an Administrator was based on the report of the Enquiry Committee though in the order of the Enquiry Committee as passing reference is made to some other material also, the requirement of observance of principles of natural justice were complied with by affording an opportunity to the petitioner to present their case before the Enquiry Committee, and the order was not invalid on the ground of non-observance of principles of natural justice.

       CONSTITUTION OF INDIA - Articles 162, 13 & 26: [Dilip B. Bhosale, J] Power of State - Order/Notification appointing Administrator for Mutts in public interest, if matadhipathi or persons in helm of affairs of Mutt are found to be mismanaging affairs of mutt and/or misappropriating Mutt properties - Held, Order/Notification appointing Administrator for Mutts in public interest, if matadhipathi or persons in helm of affairs of Mutt are found to be mismanaging affairs of mutt and/ or misappropriating Mutt properties, can be issued by State in exercise under Article 162.

        It cannot be said in such a case, that executive order is not law and any right to property can only be taken away by way of law. Under Article 26 of the Constitution religious denomination or any section thereof, have the right to own and acquire moveable and immoveable properties and to administer such property in accordance with law. Right to manage the properties of a temple or Mutt which represents the secular or temporal aspect is not being a "matter of religion or religious practices" can be regulated by the State by "law". the law within the meaning of Article 13 of the Constitution.

        Moreover, in instant case while appointing administrator of Mutt the Government had no intention to take away the powers of Mutt/denomination to manage/administer their properties permanently as the appointment was temporary which would help in restoring good health of mutt. In any case, the temporary exercise of a corrective process indeed, promotes and protects rights of the religious denomination under Article 26(C) and (d) and it is the duty of the State and so also of religious denomination to protect the Mutt from mal-administration. It is well settled that any regulation which facilitates and promotes enjoyment of the right is not an infringement of such right. Even where the rights are conferred in absolute terms, they are subject to regulatory laws.

       CONSTITUTION OF INDIA - Article 226: [Dilip B. Bhosale, J] Jurisdiction under - New Act of Karnataka Hindu Religious Institutions and Charitable Endowments Act of 1977 came into force repealing old Act - New Act was not made applicable to Mutt - High Court requested Government, in larger interest of not only denomination/devotees of Mutts but people at large for that matter, to re-visit issue/question and consider whether Mutts, could be brought within the purview of new Act and/or to bring some enactment so as to keep control over non-religious functions of the Mutt and to avoid mismanagement of properties and misappropriation of its funds.