SRI SAMSTHANA MAHABALESHWAR DEVARU Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS writ petition is directed against the order dated 17.11.2006.

(2.) THE case of the petitioners is, that they had made an application before the District Judge, Canara, under Section 47 of the Bombay Public Trust Act on 19.2.1957 to appoint 2nd petitioner as trustee of the temple in exercise of power under Section 47 of the Bombay Public Trust Act, (hereinafter referred to as "the Trust Act"). THE learned District Judge by order dated 30.1.1960 appointed the 2nd petitioner's father as Trustee of the temple. THE father of the 2nd petitioner died on 3.11.2004. After his demise the 2nd petitioner has been performing the duties in the place of his father. In the meanwhile, the devotees of the 1st petitioner along with other trustees, acting under the Trust Act, filed writ petitions in W.P. No.33012/2003 to 33015/2003 challenging the validity of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 (hereinafter referred to as the 'Endowments Act') and also for a direction to restore the temple in favour of the petitioners therein. It is stated that the Endowments Act was held constitutional by this Court. However, the 1st respondent issued a notification appointing the 2" respondent as the Executive Officer of the 1st petitioner - temple, as an additional charge. It is this order of the 1st respondent is called in question.

(3.) SRI. Subramanya Jois, learned Senior Counsel appearing for the petitioners submitted that, when the Counsel for the petitioner was not present, the respondent-State in great hurry has filed a Memo dated 18.8.2008 and on 19.8.2008 got the writ petition dismissed. By notification dated 17.1 1.2006, the Assistant Commissioner was given additional charge of administration of the temple and this Court granted the interim order of status quo, by virtue of the same, petitioner continued as trustee. The notification dated 16.8.2006 not only is for withdrawing the notification dated 17.6.2006, but it based on the issue of another notification dated 12.8.2006. and by which the Government not only deleted the temple from the list of notified temples, but decided to entrust the temple to Ramachandrapur Mutt. The whole exercise of the government was to defeat the interim order and to defeat the rights of the petitioner. He submitted that the notification dated 16.8.2006 has an effect of denial of rights accrued to the petitioner. The State Government in order to over reach the interim order of this Court dated 12.12.2006, had adopted a very ingenious method of issuing notification dated 12.8.2008 to delete the temple from the notified list, and hand over the same to the Ramachandrapura Mutt and thereafter, by issuing the notification dated 16.8.2008 has withdrawn the impugned notification, with an intention of discontinuing the impugned notification, with an intention of discontinuing the petitioner as a trustee. He further submitted that, in view of the above circumstances this writ petition has not become infructuous. He strongly relied on the observations made by the Division Bench of this Court in W.A.No.6083/2009 and submitted that, the Division Bench categorically at para-34 of its order has observed, that the matter requires proper scrutiny and has expressed that it is desirable that the matter is examined in an adequate manner and to the satisfaction of the petitioners, to consider as to whether the writ petition has become infructuous or not. He submitted, that in view of the observations made by the Division Bench, the matter required to be considered on the question as to whether it has become infructuous and also as to the effect of the withdrawal of notification dated 16.8.2006. He further relied on two judgments of the Apex Court reported in (1998) 8 SCC 388 in the matter of Paramjeet Singh Vs. State of UP. & Others, and in (1998) 5 SCC 639, in the matter of Ashgar Khan Vs. Union of India and Others, and submitted that, even if the question involved in the dispute has become academic, writ petition will not become infructuous and the Apex Court. In the judgment referred to above has observed that the dismissal of writ petition as having become infructuous on the ground that the issue has become academic was held as not justified. He submitted that, the order of withdrawal of Impugned notification should ensure status quo ante, that is the position as on the date of granting of interim order by this Court, and mere withdrawal of notification will not render the writ petition infructuous.