1 ®

IN THE HIGH COURT OF AT

DATED THIS THE 2ND DAY OF SEPTEMBER 2014

BEFORE

THE HON’BLE MR. JUSTICE A S BOPANNA

WRIT PETITION Nos.27894-27898/2012 (GM-R/C)

BETWEEN:

B KEERTHIVARMA SHETTY AGED ABOUT 47 YEARS, S/O LATE SRI. B NAGKUMAR SHETTY, R/AT 6-98A, "YESHODA" BETKERI, PRANTHYA VILLAGE, -574 227 ... PETITIONER

(By Sri. K SANATH KUMAR SHETTY, ADV.)

AND:

1. THE STATE OF KARNATAKA REP. BY SECRETARY TO THE REVENUE DEPT., M.S.BUILDING, DR. AMBEDKAR VEEDHI, BANGALORE-01

2. SRI. D SAMPATH SAMRAJYA AGED ABOUT 54 YEARS, S/O LATE SRI. DHARMA SAMRAJYA, R/AT SHIMUNJE GUTHU, POST, TALUK, PIN-574124, D.K.

3. SRI. BHASKER S KATTEMAAR S/O LATE NAGASWAMY AGED ABOUT 72 YEARS, R/A KATTEMAAR, KELENJAR VILLAGE, POST , , PIN-574162 D.K. 2

4. DR. M. VIDYADHARA SHETTY AGED ABOUT 66 YEARS, S/O SRI. B K DHARMAPALA SHETTY, R/AT VIJAYA MAHAL, KADRI KAMBLA ROAD, MANGALORE, PIN-575004 D.K. DIST.

5. SRI. M SUNIL KEERTHI S/O LATE SRI JAGATHPAL AGED ABOUT 65 YEARS, CHOWTARA ARAMANE, MARPADY VILLAGE, POST MOODABIDRI-574 227, MANGALORE TALUK, D.K.

6. SRI. PUSHPARAJA JAIN S/O MUNIRAJ JAIN AGED ABOUT 40 YEARS, R/A 206, SAHARA RESIDENCY, BALMATTA ROAD, MANGALORE-575 001, D.K. DIST.

7. SRI. A RAJENDRA SHETTY AGED ABOUT 65 YEARS, S/O LATE SRI DHARMAPAL SHETTY, R/A "SARANG" BALLALBAGH, MANGALORE-575 003, D.K. DIST.

8. SRI. DINESH KUMAR S/O LATE A JEEVANDAR KUMAR AGED ABOUT 48 YEARS, R/AT ANADKA HOUSE, PUTHIGE VILLAGE, MUTHABAIL POST, MANGALORE TALUK, D.K.

9. MANGALORE TALUK JAIN MATHASTHAPANA COMMITTEE MOODABIDRI, D.K. REP. BY ITS SECRETARY

10. K KRISHNARAJA HEGDE S/O ANANTHAYYA HEGDE AGED ABOUT 56 YEARS PATEL HOUSE, KALLABETTU VILLAGE POST MOODABIDRI-574227 MANGALORE TALUK (D.K.DIST.) 3

11. B. RAJENDRA S/O LATE B CHANDRARAJA JAIN AGED ABOUT 53 YEARS R/A PATNA SHETTY HOUSE PERINJE, HOSANGADI VILLAGE POST PERINJE-574 227 BELTHANGADI TALUK ... RESPONDENTS

(By Sri. S V GIRIKUMAR, AGA. FOR R1 Sri K CHANDRANATH ARIGA, ADV. FOR R2, 4 & 6 Sri A KESHAV BHAT & Sri SHRIKRISHNA, ADVs. FOR R8 Sri BHASKER S KATTEMAAR (PARTY-IN PERSON) FOR R3 Sri K SHASHIKANTH PRASAD, ADV. FOR R10 & 11 R5, R7 & R9 ARE SERVED)

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF , WITH A PRAYER TO DECLARE THAT THE ORDER AT ANNEXURE-A PASSED IN W.P. 26788/2005 ON THE FILE OF THIS COURT AS IT IS ONE WITHOUT JURISDICTION DOES NOT BIND THE PETITIONER AND QUASH THE ORDER DATED 8.10.2010 PASSED IN MISC. CASE NOS.37, 54, 70/2008, MISC. CASE NO.8/2009 AND 2/10 ON THE FILE OF I ADDL. DISTRICT JUDGE, D.K. MANGALORE & THE MOKTHESARI SANNAD DATED 24.1.2012 ISSUED BY THE RESPONDENT NO.9 VIDE ANNEXURES-B & C RESPECTIVELY.

THESE WRIT PETITIONS HAVING BEEN RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING :

ORDER

The petitioner herein is seeking review of the order dated 04.02.2008 passed by this Court in

W.P.No.26788/2005 and declare that the said order does not bind the petitioner. The petitioner is also seeking that the order dated 08.10.2010 passed in 4

Misc. Case Nos.37, 54, 70/2008, 08/2009 and 02/2010 on the file of the Addl. District Judge, Da.Ka.,

Mangalore and the Mokthesari Sannad dated

24.01.2012 issued by the eighth respondent be quashed.

2. The concise facts leading to the present situation is that the Jain Basadis situate in Dakshina

Kannada District is administered by a Committee of

Management, known as the ‘Jaina Mathasthapana

Committee’ (‘Committee’ for short) which is headed by the ‘ Mokthesar ’. The relevant Act that is applicable and the procedure to be followed for appointment of members to the Committee is the contentious issue.

This Court had the occasion to examine this aspect in

W.P.No.26788/2005 when the second respondent herein having impleaded himself as the petitioner after the death of the original petitioner was before this

Court. The petitioner herein was the first respondent to that petition, but he did not choose to appear. This

Court on examining the relevant provision has held that 5

the repeal as made by The Madras Hindu Religious

Endowments Act, 1926 ( ‘Act No. II of 1927’ for short) will apply only in so far as Hindu Religious

Endowments. Hence it was held that Religious

Endowments Act, 1863 (‘Act, 1863’ for short) is applicable to Jains of Dakshina . Under Sec.

10 of Act, 1863, if the vacancy occurring in the

Committee is not filled by election, the Civil Court is vested with the power to fill up the vacancy from among the persons making the application.

3. The said W.P.No.26788/2005 had arisen before this Court in the circumstance that learned District

Judge while considering Misc. Case No.88/2000 filed by the petitioner herein and two other applicants who had filed the applications under Sec.10 of Act, 1863 had held the same to be not maintainable. Though the applicants therein had not assailed, the respondent in that proceedings had assailed the order. As noticed, this Court had declared the legal position holding such applications to be maintainable under Sec.10 of Act, 6

1863. However, since the applicants before the Court below had not assailed the order, no further direction was necessary nor was it made.

4. The petitioner herein whose application had been dismissed as not maintainable, taking benefit of the order of this Court thereafter made a fresh application before the learned District Judge in Misc. C.

No. 68/2008. The said application was clubbed along with eight other similar applications under Sec.10 of

Act, 1863 and considered on its merits. The learned

District Judge, by the common order dated 08.10.2010, while considering five other applicants to be appointed as the members of the Committee has among others rejected the application of the petitioner herein who was the applicant in Misc.C.No.68/2008. Subsequent to the

Committee being constituted, the Mokthesari Sannad was issued to the Mokthesar on 24.01.2012. The petitioner feeling enlightened at this stage has filed this petition on 10.08.2012. 7

5. The third respondent who has been an unsuccessful applicant at an earlier point having made the application under the same provision is seeking to support the case of the petitioner through his objection statement. The second respondent who was the petitioner in the earlier petition and also the applicant in Misc. C.No.37/2008 has filed his objection statement referring to the legal provisions and also contending that the petition is liable to be dismissed on the ground of laches and that the issue cannot be examined at the instance of the person who has made the application taking advantage of the same provision regarding which this Court had pronounced at the earlier instance.

6. Heard Sri. Sanath Kumar Shetty, learned

Counsel for the petitioner. Sri. Bhasker S.Kattemar, the second respondent-in-person, Sriyuths.K.Chandranath

Ariga, A.Keshava Bhat, K.Shashikanth Prasad, learned

Counsel for the respective respondents and Sri.

S.V.Girikumar, learned Government Advocate were also heard. Perused the petition papers including the 8

records of the earlier W.P.No.26788/2005 which has been placed below.

7. In urging that the earlier order dated

04.02.2008 passed in W.P.No. 26788/2005 be declared as not binding on the petitioner, though contentions have been urged on behalf of the petitioner herein about the petition having abated and the order being non-est, while the learned Counsel for the contesting respondent has sought to dispute the said position and in that regard several decisions have been cited, I am of the opinion that it is not necessary to overburden this order by referring to contentions and the decisions at this stage. That issue would arise only if this Court arrives at the conclusion that a different view than the one taken earlier with regard to the applicability of the Act,

1863 is to taken at present. Hence, it would be appropriate to consider and answer the contentions in that regard.

9

8. Before adverting to the provisions which arise for consideration, it is necessary to notice the decision relied on by the third respondent-in-person, in the case of Union of India & Anr. –vs- Deoki Nandan

Aggarwal (1992 Supp(1) SCC 323 wherein it is held that it is not the duty of the court either to enlarge the scope of legislation or the intention of the legislature, when the language of the provision is plain and the court cannot rewrite the legislation or add words to a statute and read what is not there. It is further held that the courts have to decide what the law is and not what it should be. Having perused the decision, there can be no quarrel whatsoever with the said settled legal position nor is this court under any illusion to the contrary. On that premise it is necessary to notice the issue with regard to the applicability of the relevant provision.

9. The learned counsel for the petitioner at the outset sought to contend that the Act, 1863 at first instance itself was not applicable to Jains. In that 10

regard it is contended that the preamble to that Act does not refer to Jains while it specifically refers to

Mosques, Hindu Temples and Colleges or other purposes, but no mention is made with regard to Jain religious institutions or Basadis. The said contention cannot be accepted for more than one reason. Firstly, no other Act specifically applicable to Jains as on that date so as to exclude the Act, 1863 is pointed out.

Secondly, though the word Jain is not mentioned in Act,

1863 and the preamble provides for Mosques or Hindu

Temples; it also contains the phrase “and for other religious uses” which would include all other religious uses including Jain Basadi which certainly is for religious use. Further, while providing for the jurisdiction of the Civil Court in Sec. 2 of that Act, it has been stated, within the local limits of the jurisdiction of which the mosque, temple or religious establishment is situate and in the subsequent provisions also the words

“or other religious establishment” is contained, which will encompass all other religious establishments and the same in my opinion, without doubt will include Jain 11

Basadi as well. Thirdly, that being the understanding, the applications were being filed under the said Act until the question has been raised in the context of the

Act, 1863 being repealed by Act II of 1927. In fact, even prior to the order dated 04.02.2008 passed by this

Court, the petitioner himself was the applicant in

Misc.Case No. 88/2000 and the third respondent herein who is supporting the case of the petitioner was the applicant as far back in the year 1972 in Misc. Case

No.38/1972 which was decided on 19.01.1976. Above all, the very contention on behalf of the petitioner that by Act II of 1927, the Act 1863 has been repealed in respect of Jain religious institutions will belie all other contentions to the effect that Act, 1863 did not apply at all.

10. Thus, when it is clear that the Act, 1863 was applicable to Jains at the first instance, the question is as to whether the contention of the learned counsel for the petitioner that it has been repealed by Act II of 1927 can be accepted. To put the issue in perspective, it 12

would be appropriate to notice the relevant provisions of

Act II of 1927 which reads as hereunder; “ WHEREAS it is expedient to provide for the better administration and governance of certain Hindu religious endowments described hereunder :

“CHAPTER I

1. xxx xxx xxx

2. This Act extends to the whole of the Presidency of Madras except the Presidency town and applies, save as hereinafter provided, to all Hindu public religious endowments .

Explanation.- For the purposes of this Act, Hindu public religious endowments do not include Jain religious endowments .

3. (a) xxx xxx xxx

(b) The (Provincial Government) may, by notification, extend to Jain religious endowments the provisions of this Act and of any rules framed thereunder, and may declare such extension to be subject to such restrictions and modifications as they think fit;

Provided…….xxx 13

6. The Madras Hindu Religious Endowments Act,1923 (hereinafter referred to as ‘the said Act’) is hereby repealed.

7. xxx xxx xxx

8. The Religious Endowments Act, 1863, and the Madras Endowments and Escheats Regulation, 1817, so far as they apply to Hindu religious endowments to which this Act applies, are hereby repealed .”

(emphasis supplied)

11. A plain reading of the above noticed provision with the emphasis as supplied will in no uncertain terms indicate that Act II of 1927 is enacted with specific reference to Hindu religious endowments alone and not in respect of any other endowments which were governed under Act, 1863. In fact the explanation to

Sec.2 of Act II of 1927 makes it clear that the Hindu public religious endowments do not include Jain religious endowments. In that light if the repeal made under Sec.8 is perused, it is seen that The Religious

Endowments Act, 1863 and the Madras Endowments and Escheats Regulation, 1817, only so far as the said 14

Acts applied to Hindu religious endowments to which

Act II of 1927 is made applicable are repealed. If the said repeal provision is read in juxtaposition with the explanation to Sec 2 of Act II of 1927, it will be abundantly clear that the Jain religious endowments are not brought within the sweep of Act II of 1927 nor has it been taken out of the Act, 1863. If that be so, the

Jain religious endowments will continue to be governed under the provisions of the Act, 1863.

12. The provision contained in Sec. 3(b) of Act II of 1927 though referred by the learned Counsel for the petitioner to contend to the contrary is of no assistance.

The fact that the legislature has allowed the executive to extend the provisions of Act II of 1927 to Jain religious endowments subject to such restrictions and modifications will indicate that only if such notification to that effect is issued, the provision of Act No.II of 1927 will get extended and not otherwise. It is brought to the notice of this Court that such power has been exercised in one instance and The Sravanabelagola Digamber Jain 15

Muzrai Institutions Management Rules, 1967 has been notified. The same is made applicable to the Muzrai

Institutions at Sravanabelagola specified in the schedule. There is no such notification in respect of

Jain religious endowments in and therefore the appointment of members to the Committee would continue to be done in the manner as specified under Sec.10 of the Act, 1863.

13. In that view of the matter, the decision in the case of Bal Patil and another –vs- Union of India and others (AIR 2005 SC 3172) relied upon by the third respondent is not of any assistance. In the said decision it is no doubt held that ‘’ can be called a general religion and common faith of India whereas

‘’ is a special religion formed on the basis of quintessence of Hindu religion and the difference between them being only the practices and principles.

By relying upon the same though it is contended that the repeal in respect of Hindu religious endowments would also apply to Jain religious endowments, the 16

same cannot be acceded to, because the said consideration was being made in the context of deciding the minority status, but in the instant case as already noticed the Act II of 1927 itself in its explanation to

Sec.2 excludes Jain religious endowments. When the contents of the Act is explicit it is not necessary to resort to any other aid for construction.

14. On the other hand, the decision rendered by a

Hon’ble Division Bench of this Court relating to the same enactment, relied on by the learned counsel for the second respondent, in the case of Commissioner under the Madras Hindu Religious and Charitable

Endowments Act –vs- Ratnavarma Hegde (1969 (2)

Mys.L.J 23) fortifies the conclusion reached by me. In the said case while considering the correctness of the order passed by the learned District Judge, South

Kanara setting aside the decision of the HRE Board,

Madras which had held the ‘Sri Manjunatha Temple’ as a ‘temple’ under Act II of 1927 and in considering the applicability of Act II of 1927, the Hon’ble Division 17

Bench noticed the contention of the learned Advocate

General and rejected the same for the reasons assigned, which reads as hereunder:

The learned Advocate General argued that if the deity is a Hindu deity and the performed are in accordance with the Hindu Shastras, the mere fact that some Jains also worship at the temple would not take it out of the purview of the Act. He argued that if the fact is established that the deity is a Hindu deity, the rituals performed are in accordance with the Hindu Shastras and that the Hindu public used the place as of right for religious worship, the proper inference to be drawn is that the place is used as a place of Hindu public religious worship and it is used as of right by the Hindu community notwithstanding the fact that Jains also worship at the temple. According to the learned Advocate General, the definition of the term ‘temple’ under the Act does not warrant the test of `exclusiveness’ laid down in the decisions referred to earlier.

In the matter of interpretation of the term `temple’ the object of the Act as stated in 18

its preamble, its application as stated in S.2 and the scheme of the Act are relevant. The Act expressly excludes Jains from the Hindu public. It requires that the trustees of Hindu temples should be Hindus only. S.25 bars any person who does not profess the Hindu religion from succeeding to the office of trustee of a temple or to be appointed to such office. The Commissioner and other officials appointed under the Act for administration of Hindu Religious Endowments should be Hindus only. In other words, a Jain is precluded from succeeding to the office of a trustee of a temple as defined under the Act. A right to the office of hereditary trusteeship is `property’ within the scope of Art 19(1) (f) of the Constitution and therefore protected as a fundamental right guaranteed by the Constitution. Art.26 of the Constitution guarantees to every religious denomination the right to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to own and acquire moveable and immoveable property and to administer such property in accordance with law. The right to administer its religious institutions in accordance with law is a 19

fundamental right guaranteed to every religious denomination by the Constitution. The Act therefore is concerned only with the Hindu public religious endowments established or belonging to Hindus; Jain religious institutions or institutions of a composite character are not intended to be governed by the Act. In our judgment, the submission made by the learned Advocate General is clearly untenable.

(emphasis supplied)

15. The above noticed judgment was carried in appeal and the Hon’ble Supreme Court while dismissing the appeal in the case of The Commissioner for Hindu

Religious and Charitable Endowments, Mysore –vs-

Ratnavarma Heggade (deceased) by his L.Rs.,

(AIR 1977 SC 1848 ) has held as hereunder:

10. The preamble of the Act states, inter alia, that it is meant to provide for the better administration and governance of “certain Hindu religious endowments” described in it. Section 2 makes it clear that the Act applies “to all Hindu public religious endowments”. Private religious endowments are therefore 20

outside its scope. Then there is an Explanation to the following effect,-

“Explanation.- for the purpose of this Act, Hindu Public religious endowments do not include Jain religious endowments.”

The effect of the section therefore is to exclude not only private religious endowments, but also Jain religious endowments and it is around the provisions of Section 2 that the controversy in this case has centered. The exclusion of Jain religious endowments has been emphasized by Section 3(b) which empowers the Local Government to remove the exclusion and extend the provisions of the Act, and the Rules framed thereunder, to Jain religious endowments, subject to such restrictions and modifications as may be considered proper. As no such extension has been notified, the Act does not cover Jain religious endowments. It is confined to Hindu religious “endowments” and will not be applicable where there is no such endowment at all.

(emphasis supplied)

16. In addition, the learned counsel for the second respondent has sought to demonstrate that the 21

Act, 1863 was not repealed in so far as Jain religious institutions even by subsequent enactments by referring to Sec.1(2), its explanation, Sec.2 and Sec.5(3) of The

Madras Hindu Religious and Charitable Endowments

Act,1951 (‘Act, 1951’ for short). The contents therein is similar to the above extracted portion of Act II of 1927 to exclude the Jain religious institutions and the power of notifying is given to the Government.

17. Further, the Karnataka Hindu Religious

Institutions and Charitable Endowments Act, 1997

(‘Act, 1997’ for short) is referred by pointing to Sec.78 therein which provides for the Repeal and Savings of the earlier enactments. Though the learned counsel for the petitioner sought to refer to Sec.5 of the Act, 1951 to contend with regard to the repeal made therein, what is necessary to be noticed is that the repeal made is of Act,

1926 i.e., Act II of 1927 and Act, 1932, but, under sub-sec. (3) to Sec.5, the enactments stated there under which includes Act,1863 has been excluded from its applicability to only Hindu religious institutions and 22

endowments. Further, in Sec.78 of Act, 1997, the sub- sec.(2) thereto wherein the repeal of the enactments is listed, does not include Act,1863. On the other hand,

Act, 1863 is enlisted in sub-sec.(1) thereto indicating that it will not be applicable to the Charitable

Endowments and Hindu Religious Institutions governed under that Act. The institutions governed under that

Act are the institutions notified under Sec.23 which does not include Jain religious institutions.

18. Therefore when the cumulative effect of all the provisions under the different enactments relating to the subject is to the effect that initially the Jain religious institutions were governed under Act, 1863 and the applicability of that Act has been excluded only to the Hindu religious institutions by the subsequent enactments and when there is no other specific provision being made under any other enactment to

Jain religious institutions, the procedure contemplated under Sec.10 of the Act, 1863 will continue to apply, except in cases where the Government has exercised the 23

power granted to it to issue notifications in that regard.

Hence the applications filed in the instant case before the learned District Judge was maintainable.

19. In the backdrop of the above conclusion, it is not necessary for me to advert to the contentions relating to the maintainability or otherwise of the earlier writ petition after the death of the original petitioner therein as such examination would be futile. Hence I have thought it fit not to advert to the contentions and the decisions relied on that aspect. In so far as the order dated 08.10.2010 passed in Misc. Case Nos. 37, 54,

70/2008, 08/2009 and 02/2010 by the I Addl. District

Judge, Dakshina Kannada, the petitioner had not chosen to assail the same for nearly two years. In any event, no infirmity on merits with regard to the acceptance of the applications of the others and rejection of the application of the petitioner is pointed out. Hence, the said order does not call for interference.

In that view, the challenge to the Mokthesari Sannad dated 24.01.2012 is also not sustainable. 24

20. Before parting, I find it necessary to observe that though the petitioner has sought to file this petition on purportedly legal grounds relating to the validity of the order passed by this Court in the earlier petition, the conduct of the petitioner is reprehensible. This is for the reason that the said petition had arisen in a circumstance where the application filed by the petitioner herein also had been dismissed as not maintainable. Though he did not choose to assail the order, he was the first respondent to the said petition but he did not deem it fit to appear and put forth his contention. Even when this Court held that such applications will be maintainable and granted leave for filing fresh applications, the petitioner who was obviously aware of the said order did not seek recourse which is presently sought. Instead, the petitioner on the other hand took benefit of the order passed by this

Court and filed application before the District Court seeking his appointment to the Committee. The order dismissing his application was passed as far back as on 25

08.10.2010. The petitioner did not feel aggrieved even at that stage, but has belatedly filed this petition and that too after about eight months after the Sannad dated 24.01.2012 was issued raising all sorts of contentions. He chooses to approbate and reprobate at his whim. Such casual and cavalier attitude of filing luxury litigation to occupy the time of the Court which could otherwise be utilized for resolving the grievance of the genuine litigants should be curbed. Therefore, though this Court is very slow even to grant costs in normal circumstance , this is a fit case where punitive cost is to be levied.

21. For all the afore stated reasons, the following,

O R D E R

(i) The writ petitions are dismissed with costs

quantified at Rs.15,000/- (Rupees fifteen

thousand only).

(ii) The cost shall be deposited by the

petitioner in the Registry within four weeks. 26

(iii) On failure to deposit the cost, the

Registry shall place the matter before the Hon’ble

Division Bench for initiation of contempt

proceedings for non-compliance of the direction.

Sd/- JUDGE

hrp/bms