2018 Supreme(Kar) 348

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
B.V. NAGARATHNA, ARAVIND KUMAR, JJ.
Sri Samsthana Mahabaleshwara Devaru & Ors. - Petitioners
Versus
Secretary, Revenue Department (Endowment) Government of Karnataka & Ors. -Respondents
Writ Petition No.30609 of 2008 (GM-R/C) C/W W.A.Nos.1477 of 2008 & 1286-1310 of 2011 (GM-R/C), W.P.Nos.11734 of 2008 (GM-R/C-PIL), 12612 of 2008 (GM-R/C-PIL), 14097 of 2008 (GM-R/C-PIL), 31026 of 2008 (GM-R/C), W.A.No.6121 of 2010 (GM-R/C), W.P.No.60096/2010 (GM-R/C)
Decided On : 10-08-2018

Headnote:

LEGAL DOCTRINES & MAXIMS - "Unius est exclusio alterius - which means-"expression of one thing is an exclusion of another". Therefore, when one thing is expressly stated, then by implication what has not been stated is excluded from the scope of expression. Further, there is another legal principle, which is applicable in the present case. It is, where a power is given to do a certain thing in a certain way, things must be done in that way or not at all and that other methods of performance are necessarily forbidden. When a statute required a particular thing to be done in a particular manner, it must be done in that manner or not at all and that other method of performance are necessarily forbidden.

       CONSTITUTION OF INDIA - Article 226 - Competency of the Government to exclude Gokarna Temple form the List of Notified Institutions - Applicability of Doctrine of "parens patriae"- Held, (a) The doctrine of parens patriae does not apply in the instant case for myriad reasons. Firstly, the controversy in the instant case revolves on the power of the State Government Order dated 12/8/2008 under the provisions of the Karnataka General Clauses Act, 1899 - In the absence of there being any express power under the statute and Section 21 of the General Clauses Act not being applicable, the inherent power of the State could not have been relied upon to issue such Government Orders. This is because, in the instant case, the State was purporting to act under the statute i.e., pursuant to the Hindu Religious Institutions and Charitable Endowments Act, 1997 and when no express or implied powers are available under the provisions of the Act or under Section 21 of the General Clauses Act.

        (b) The doctrine of parens patriae cannot be invoked as if the State is acting for persons under legal disability or for the benefit of persons who are not in a position to exercise therie rights in law on account of mental and physical infirmity and or physical disabilities. Further, this is not a case where there is a vacuum in law, which could enable the State to exercise its inherent power under the parens patriae jurisdiction. On the other hand, exercise of such a power is forbidden under the stature as it does not empower the State to transfer a Notified Institution to a Mutt.

        (c) The State Government could not have, in exercise of its parens ptriae power deleted Gokarna Temple from the List of Notified Institutions. It could not have done so for the purpose of handing over the same to the respondent/Mutt, which itself is not in public interest.- The doctrine of parens patriae cannot be relied upon to act contrary to public interest and against the law.- The State Government had no power or competence to delete Gokaran Temple from the List of Notified Institutions by the impugned Government Order and handover the same to the respondent/Mutt, in favour of petitioners.

        Further, In the absence of any power to delete the Temple form the List of Notified Institutions, the deletion of the same and handing over of the Temple to the respondent/Mutt is an instance of improper exercise of power and is arbitrary and hit by Article 14 of the Constitution of India.-The action of the State Government is tainted as it is not for a bona fide purpose, but to confer a benefit on respondent/Mutt.- Government Order dated 12/8/2008 is hence quashed.- On quashing of Government Order dated 12/8/2008, Gokarna Temple shall continue to be included in the list of Notified Institutions as per Section 23 of the Act.

       CONSTITUTION OF INDIA - Article 226 - Public Interest Litigation - Government Order deleting Gokarana Temple from the List of Notified Institutions under the Hindu Religious Institutions and Charitable Endowments Act, 1997 and handing over the Temple to respondent/Sri Ramachanadrapura mutt-Maintainability of Public Interest Litigation - Held, What has been assailed in the Public Interest Litigations is Government Order dated 12-08-2008. The Notification has been issued by the State Government for the purpose of deleting Gokarana Temple from the List of Notified Institutions under the Hindu Religious Institutions and Charitable Endowments Act, 1997 and also handing over the Temple to the respondent/Mutt. Serious issues and contentions have been raised in the Public Interest Litigations. There are also other litigations, which have been filed in private interest. They all seek to achieve the same end, namely, a challenge being made to Government Order dated 12-08-2008 and the action of the Government in deletion of Gokarna Temple from the List of Notified Institutions and handing over the same to the respondent/ they assail administrative action on various grounds touching upon Gokarna Temple, which is a public Temple, which has been handed over to a private Mutt. Held, The State Government did not have the power or competence to exclude or delete Gokarna Temple form the List of Notified Institutions vide Government Notification dated 30\4\2003 (01/05/2003)_- The deletion of Gokarna Temple could not have been by way of a Government Order but by way of a Notification - The State Government could not have deleted Gokarna Temple from the List of Notified Institutions by placing reliance on Section 21 of the General Clauses Act. Moreover, the State Government could not have exercised its parens patriae powers so as to issue the impugned Government Order dated 12/8/2008. Section 21 of General Clauses Act mandated that when a power is exercised to add to, amend, vary of rescind a notification, order, rule bye-law etc., it must be exercised in the like manner and subject to like sanction and conditions, if any. It is noted that the list of Notified Institutions have been published by the State Government by way of Notification dated 30/4/2003 (1/5/2003). If any excluding or including any Temple as a notified institution, then it must be done by issuance of another Notification as per the mandate of Section 21 of General Clauses Act. The same cannot be done in any other way or manner. But in the instant case, it is by issuance of a Government Order. The requirement of Section 21 is clear and mandatory in nature. Can amendment to a Notification issues under Section 23 of the Hindu Religious Institutions and Charitable Endowments Act, 1997 be by way of issuance of a Government Order? It cannot be so. This can be explained by way of legal maxim, expression unius est exclusio alterius, which means-"expression of one thing is an exclusion of another". Therefore, when one thing is expressly stated, then by implication what has not been stated is excluded from the scope of expression. Further, there is another legal principle, which is applicable in the present case. It is, where a power is given to do a certain thing in a certain way, things must be done in that way or not at all and that other methods of performance are necessarily forbidden. When a statute required a particular thing to be done in a particular manner, it must be done in that manner or not at all and that other method of performance are necessarily forbidden. Thus, the Temple in question could not have been deleted by issuance of a Government Order, but by issuance of another Notification. In fact, Section 21 of General Clauses Act also envisages exercise of power in the same manner in which power is exercised to issue a Notification in the first instance. This is not a matter of form, but of substance inasmuch as Section 21 of General Clauses Act stipulated that any amendment to a Notification already issued must be in the like manner and subject to the like conditions and sanctions that is, by means of issuance of another Notification by invoking the relevant provisions of law in respect of which the prior/earlier Notification was issued and which is sought to be amended and not in the form of an order, as in the instant case. Therefore, it is held that the deletion of Gokarna Temple from the List of Notified Institutions could not have been by Government Order dated 12/8/2008, but it could have been by issuance of a Notification, in the same manner the Temple was included in the List of Notified Institutions under Section 23 of the Act. The State Government could not have either included a Temple to the List of Notified Institutions or excluded a Temple from the said List on the touchstone of Section 21 of the General Clauses Act, if the Temple was rightly not included in the List of Notified Institutions or rightly excluded from the List of Notified Institutions, as the case may be. However, if a Temple, which ought to have been included in the List of Notified Institution and not having been done so or, if a Temple was erroneously included in the List of Notified Institutions and therefore, has to be excluded, then even in the absence of there being an express provision under the Act, Section 21 of the General Clauses Act could be relied upon. But while doing so, it is incumbent upon the State to amend or vary the List of Notified Institutions in the same manner of form in which the List has been issued i.e., by issuance or a notification and not by a Government Order.

        Thus, a Temple which was rightly included in the List of Notified Institutions could not be deleted from the List or it a Temple which has rightly been excluded in the said List could be included on the basis of Section 21 of General Clauses Act. Hence, it is held that the issuance of the impugned Government Order dated 12/8/2008 as the Temple was rightly included in the List of Notified Institutions by Notification dated 30/4/2003 (01/5/2003). When once a Temple was rightly included in the List of Notified institutions, it cannot be excluded on the application of some other criterion, namely that is a Temple attached to a Mutt. If indeed a Temple is attached to the Mutt, then the Act does not apply to such a Temple. But exercise of power on the basis of Section 21 of General Clauses Act to delete a Temple rightly notified from the List of Notified Institutions for the purpose of handing it over to a Mutt, as in the instant case is not envisaged. This is because the Act does not envisage deletion of a Notified Temple to be handed over to a private Mutt. The Act in fact does not envisage any deletion or inclusion of a Temple which ought to have been included or was rightly excluded in the List of Notified Institutions, as the case may be.

        Therefore, exercise of power for the purpose of deletion of the Temple from the List of Notified Institutions in order to handover the same to the respondent/Mutt was without any basis and contrary to the provisions of the Act and therefore, illegal and wholly unwarranted. Section 21 of the General Clauses Act also does not empower the State Government or Authority to act or exercise discretion contrary to the provisions and scheme of the Act. Thus, reliance placed on Section 21 of the General Clauses Act is wholly misplaced.

       INDIAN EVIDENCE ACT, 1872 [C.A. NO. 1/1872] - Section 103 - Burden of proof as to any particular fact - Burden of proof lies on the person who wishes the Court to believe in its existence - Finding that Gokarna Temple is attached to the respondent/ Sri Ramachandrapura Mutt, is a mixed question of law and facts, could only be given by a Competent Civil Court and not in a writ petition under Article 226 of Constitution.