Dr. Madav S/O Shankar Pandit Vs. the State of Karnataka R/P Its Chief Secretary, Govt. of Karnataka and Secretary to Government, Revenue Commissioner, Department of Revenue (Muzarai) Govt. of Karnataka Secretariat - Court Judgment

Excerpt:
- suspension; [cyriac joseph, cj & b. padmaraj, j] k.c.s. (classification, control & appeal) rules, 1957, rule 10 (1)(d) - held, administrative tribunal has no impediment to continue the interim order of stay of suspension simply because another man was substituted in the place of the petitioner. directions given to tribunal to consider afresh the prayer for stay of suspension order in the light of the counter affidavit filed by the respondent and the records produced by them. suspension order was stayed till the tribunal passes fresh order regarding stay. orderd.v. shylendra kumar, j.1. writ petition by a person who claims that he was functioning as a trustee of shree vinayaka dev temple at idagunji, a public charitable trust which had been registered under the bombay public trusts act, 1950 [for short '1950 act'].2. the bombay public trusts act, 1950 has been repealed in terms of the provisions of section 78(2)(a) of the hindu religious institutions and charitable endowment act, 1997 [for short '1997 act'].3. it appears every person who were the trustees and including the co-trustees of the very trust of which the petitioner claims to be a trustee had filed writ petitions challenging the constitutional validity of section 78(2)(a) of the hindu religious institutions and charitable endowment act, 1997, but failed in their attempt before a learned single judge of this court.4. undaunted, such petitioners have pursued their efforts by filing writ appeals and as submitted by sri venkataramana, learned counsel for the petitioner that such writ appeals are pending before the division bench of this court and the petitioner figures as respondent in one such writ appeal.5. in the interregnum, the writ petitioner has called in question the notification no. rd 104 met 2003 dated 23-11-2005 issued by the government of karnataka providing for the alternative forum in respect of the proceedings that were pending before the assistant charity commissioner and charity commissioner who were the functionaries under the 1950 act and in terms of this notification, such pending proceedings have been transferred to be completed by the courts of the civil judge [sr. dn.,] and district judges respectively to dispose of the pending matters as if the provisions of the 1950 act had continued to be in force. the notification recites that this is done even for the purpose of section 6(c) of the karnataka general clauses act, 1989. it is this notification that is questioned in this writ petition by the present petitioner.6. submission of sri. venkataramana, learned counsel for the petitioner is that the word 'court' had been defined under the provisions of the 1997 act which reads as under:'2(11) 'court' means in relation to a charitable endowment or hindu religious institution in any area, the district court having jurisdiction over such area7. it is also submitted that the word 'court' had been defined even under the 1950 act and the court was only the district court of the district. submission is when such is the definition of the word 'court under the act itself, the notification at annexure-b conferring powers on court including civil judge [sr. dn.,j is virtually ultra vires the provisions of the act; that it amounts to issue of a notification contrary to the provisions of the act and the petitioner having received a notice purporting to be issued by the court acting in terms of the notification at annexure-b dated 23-11-2005, the petitioner has approached this court questioning the validity of the notice and the notifications according to the learned counsel for the petitioner jurisdiction is sought to be conferred under the notification even on courts who otherwise do not have jurisdiction under the provisions of the 1997 act itself.8. learned counsel for the petitioner submits that the notice is in the context of such enquiries that were pending before the charity commissioner under the 1950 act which in terms of the present notification stands transferred to the court of the district judge.9. submission is that the proceedings cannot take place under the provisions of the 1997 act as the notification is one issued under section 78(2) of this act particularly when the validity of this very provision is questioned and this provision including some other provisions of the 1997 act are stayed by this court in pending writ appeals. one such interim order granted in the pending writ appeal is also placed before the court as annexure-a. the interim order reads as under.pending disposal of the aforesaid appeal the operation of the provisions of the karnataka hindu religious charitable institutions endowment act and rides, vix, sections 9 to 16, 17 to 19, 25, 37 and 78(2)(a) and rules 5 and 17, 8 to 20, 22 and 36 in so far as appellants are concerned be and the same are hereby stayed.10. a cursory glance at the order indicates that the stay granted is confined to the appellant therein and the provisions of the 1997 act are not stayed in general. but, be that as it may, i find no need or necessity to entertain the present writ petition at the instance of the petitioner to question the legality of an innocuous notification as at annexure-b, particularly as all that is achieved by this notification is providing the alternative forum which can now examine the causes that were pending either before the assistant charity commissioner or before the charity commissioner, in the context of such proceedings which were already pending before such authorities tinder the 1950 act, who were not admittedly the court, if an alternative forum is provided, assuming that it is conferred on any civil court as has been done under the present notification, such court does not become a court for the purpose of section 2(11) of the 1997 act the court of the civil judge (sr. dn.,] and the district judge for the purpose of the notification, act only in exercise of the powers that had been conferred on the assistant charity commissioner and the charity commissioner as the case may be and not the powers of the court as within the meaning of section 2(11) of the 1997 act. therefore, there is no merit in the contention.11. no need to interfere with the proceedings before the district court, karwar, referred to in the impugned notice under annexure-c nor the notification. no merit in the contentions urged on behalf of the petitioner. notification at annexure-b is not ultra vires the provisions of section 2(11) of the 1997 act.12. writ petition is rejected.

Judgment:
ORDER

D.V. Shylendra Kumar, J.

1. Writ petition by a person who claims that he was functioning as a Trustee of Shree Vinayaka Dev Temple at Idagunji, a public charitable Trust which had been registered under the Bombay Public Trusts Act, 1950 [for short '1950 Act'].

2. The Bombay Public Trusts Act, 1950 has been repealed in terms of the provisions of Section 78(2)(a) of the Hindu Religious Institutions and Charitable Endowment Act, 1997 [for short '1997 Act'].

3. It appears every person who were the trustees and including the co-trustees of the very Trust of which the petitioner claims to be a Trustee had filed writ petitions challenging the constitutional validity of Section 78(2)(a) of the Hindu Religious Institutions and Charitable Endowment Act, 1997, but failed in their attempt before a learned single Judge of this Court.

4. Undaunted, such petitioners have pursued their efforts by filing writ appeals and as submitted by Sri Venkataramana, learned Counsel for the petitioner that such writ appeals are pending before the division Bench of this Court and the petitioner figures as respondent in one such writ appeal.

5. In the interregnum, the writ petitioner has called in question the Notification No. RD 104 MET 2003 dated 23-11-2005 issued by the Government of Karnataka providing for the alternative forum in respect of the proceedings that were pending before the Assistant Charity Commissioner and Charity Commissioner who were the functionaries under the 1950 Act and in terms of this Notification, such pending proceedings have been transferred to be completed by the courts of the Civil Judge [Sr. Dn.,] and District Judges respectively to dispose of the pending matters as if the provisions of the 1950 Act had continued to be in force. The notification recites that this is done even for the purpose of Section 6(c) of the Karnataka General Clauses Act, 1989. It is this Notification that is questioned in this writ petition by the present petitioner.

6. Submission of Sri. Venkataramana, learned Counsel for the petitioner is that the word 'Court' had been defined under the provisions of the 1997 Act which reads as under:

'2(11) 'Court' means in relation to a Charitable Endowment or Hindu religious institution in any area, the District Court having Jurisdiction over such area

7. It is also submitted that the word 'court' had been defined even under the 1950 Act and the court was only the District Court of the District. Submission is when such is the definition of the word 'court under the Act itself, the Notification at Annexure-B conferring powers on court including Civil Judge [Sr. Dn.,J is virtually ultra vires the provisions of the Act; that it amounts to issue of a Notification contrary to the provisions of the Act and the petitioner having received a notice purporting to be issued by the court acting in terms of the Notification at Annexure-B dated 23-11-2005, the petitioner has approached this Court questioning the validity of the notice and the notifications according to the learned Counsel for the petitioner jurisdiction is sought to be conferred under the Notification even on courts who otherwise do not have jurisdiction under the provisions of the 1997 Act itself.

8. Learned Counsel for the petitioner submits that the notice is in the context of such enquiries that were pending before the Charity Commissioner under the 1950 Act which in terms of the present Notification stands transferred to the court of the District Judge.

9. Submission is that the proceedings cannot take place under the provisions of the 1997 Act as the Notification is one issued under Section 78(2) of this Act particularly when the validity of this very provision is questioned and this provision including some other provisions of the 1997 Act are stayed by this Court in pending writ appeals. One such interim order granted in the pending writ appeal is also placed before the court as Annexure-A. The interim order reads as under.

Pending disposal of the aforesaid appeal the operation of the provisions of the Karnataka Hindu Religious Charitable Institutions Endowment Act and Rides, vix, Sections 9 to 16, 17 to 19, 25, 37 and 78(2)(a) and Rules 5 and 17, 8 to 20, 22 and 36 in so far as appellants are concerned be and the same are hereby stayed.

10. A cursory glance at the order indicates that the stay granted is confined to the appellant therein and the provisions of the 1997 Act are not stayed in general. But, be that as it may, I find no need or necessity to entertain the present writ petition at the instance of the petitioner to question the legality of an innocuous Notification as at Annexure-B, particularly as all that is achieved by this Notification is providing the alternative forum which can now examine the causes that were pending either before the Assistant Charity Commissioner or before the Charity Commissioner, in the context of such proceedings which were already pending before such authorities tinder the 1950 Act, who were not admittedly the court, if an alternative forum is provided, assuming that it is conferred on any civil court as has been done under the present Notification, such court does not become a court for the purpose of Section 2(11) of the 1997 Act The Court of the civil Judge (Sr. Dn.,] and the District Judge for the purpose of the Notification, act only in exercise of the powers that had been conferred on the Assistant Charity Commissioner and the Charity Commissioner as the case may be and not the powers of the court as within the meaning of Section 2(11) of the 1997 Act. Therefore, there is no merit in the contention.

11. No need to interfere with the proceedings before the district court, Karwar, referred to in the impugned notice under Annexure-C nor the notification. No merit in the contentions urged on behalf of the petitioner. Notification at Annexure-B is not ultra vires the provisions of Section 2(11) of the 1997 Act.

12. Writ petition is rejected.