A three-judge Bench of CJI Bobde, Justice Bopanna and Justice Ramasubramanian clarified that it will only pass interim orders in the present case at the present stage.
During the hearing today, Sr Adv Vikas Singh on behalf of intervenors submitted that there is an IA for intervention with regards to constitutional validity of vires of the main act, the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997.
While referring to an appeal filed by State of Karnataka, Singh stated that that plea ideally should be decided first.
Singh, appearing for the devotees stated that the Act itself has been set aside by the High Court, and the Supreme Court had earlier granted a stay on that order. The Act is therefore surviving on an interim order, and if act itself goes nothing will remain.
The Bench observed that it sees the point in Singh's argument, as it is deciding the present matter based on principle of presumption of constitutional validity of a statute. But since the Bench has gone so far in this matter with the arguments, it is not appropriate to wait for other matters to be connected.
"The dispute that the High Court has highlighted is whether the Math is attached to the Temple, and if the Temple belongs to the math, and it is a basic fact that it is not a matter that can be decided by civil court and by authority under the Karnataka Act. This is what has been held by the High Court and they are inclined to hear it", the Bench observed
The Bench observed that if submissions made by Senior Counsel Vikas Singh and others are correct, it may pass an interim order instead. Senior Advocate AM Singhvi however opined that passing an interim order, when an interim order has already been issued, may not be the right thing to do.
Singhvi then made submission regarding the Analysis of Act, and the clear threshold exclusionary ambit of 1(4) of the Act. He stated that when an Act says nothing shall apply, the idea is to have a threshold exclusion, and the anchor of that act is 1(4). Clearly this was an act intended certain classes to be per se excluded.
His second submission was that it was an extraordinary case as the High Court in PIL and private petitions filed, where all persons involved were relatives of present respondent Mr Dixit.
"We'd not like to decide this matter based on personal character of people involved" CJI said.
Singhvi further said that he is making a legal submission, that impugned order could not passed and it is jurisdictionally impermissible. One of this court's most hallowed principles is that, PIL cannot be based on personal, political and private interest, and in the case he also said 'paisa vasool' interest.
'The impugned order could not have been passed in the so called PIL' Singhvi said.
He further submitted that apart from this Act, Section 23 the General clauses Act of Karnataka, allows to notify to de notify. The notification under Section 23 was on 30th April 2003, and Act came into force on 1st May 2003.
The Bench then asked Dr Singhvi, whether this was a public temple under Bombay trust act for 50-60 years at least and Entry under the Bombay act was adopted under Karnataka Act when it was first notified. What was the change in facts that caused reversal in entry, the bench sought to know.
"Was it not a Temple under Bombay Public Trust Act?" the Bench asked
"It was notified as an institution" Dr Singhvi answered
"No you are not correct. It was Notified as public temple under Bombay Public Trust Act, those entries remained when Karnataka act came into force, it was notified as a Public temple. We are asking you about the change that took place in the facts, and not law that the Temple was denotified." CJI said
Singhvi responded and stated that whatever it was under Bombay Trust Act, now there is a notification under a statute whose opening provision says that there shall be an exclusion.
Dr Singhvi stated "My question to myself is how can you apply statutory mandate of an Act which doesn't have a similar or remotely similar exclusion. Its an important jurisdictional point, there is no equivalence between Bombay act and the 1997 act."
The 1997 Act being referred to here is the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997.
He added that there are established historical facts showing that there is a math with a temple and the State's counter in High Court gives in great detail the historical facts again.
Singhvi remarked that how can it be denied Math and Temple are not together even if its established historically. He stated that there is an inquiry, even though not a civil inquiry in judicial sense.
Bench stated that they are not averse to have an inquiry conducted by an authority under the Act provided that basic semblance of fairness is there, that someone is allowed to give evidence, question that evidence and is decided on that basis."There has been an inquiry with application of mind. Today if there's an interim thing operating and the Court has any doubt on the inquiry, and if the Court was to kept it at abeyance and ask State government to conduct a proper judicial inquiry and get a report how will that not be against any public interest?" Singhvi said
Singhvi concluded his argument stating that Court is entitled to have an inquiry but without changing the status quo.
Singhvi stated that prima facie there is history to a math. There are so many maths and temples in the country, and we don't have civil court decrees to show their prima facie authenticity.
The Bench then referred to the dispute regarding the Chidambaram temple, stating that there dispute was between priest and the government.
"In present case dispute is not if priest should have it or Government should have it. Here dispute is who in non-government sector should have it", CJI said.
"We are quite conscious and we have discussed that this should not be precedent for other temples like Kanchi Maths, etc as their dispute is between government and priest. This is a different situation." Bench observed.
"An inquiry was conducted but it may not be in concept of inquiry like a judicial or quasi judicial inquiry. Mind was applied and facts were gone into. It was confirmed that the temple was under control of Maths. Prima facie, It is undeniable that its a math and a temple of antiquity." Singhvi stated regarding the Tehsildar's report.
In response to Court's query if he agrees with an inquiry being conducted, Singhvi clarified that his submissions are that there has been a proper application of mind and the act doesn't apply, and it is his alternative argument that an inquiry can be done still.
Singhvi concluded his arguments by making the following submissions:
- There is a statutory exclusion and it should be given effect to in letter and spirit and not just in formality.
- There's an inquiry with application of mind and genuine consideration
- Assuming there is deficiency in that it should be cured by a more comprehensive inquiry, in a peremptory time bound manner.
- There is no warrant to change the interim status quo.
Sr Adv Ranjit Kumar appearing for the State submitted that the State has taken an Informed decision when it deleted 16000 other temples from notified list, and not just one Temple from notified list. That informed decision was based on all inputs given to the government and was subject matter of challenge.
"We would have liked the inputs to have been in form of an inquiry." Bench responded.
Kumar added that the Inquiry in form of tehsildar, deputy tehsildar, Assistant and deputy commissioner and Advocate general, etc went into consideration when the government made the decision.
"However high an officer the Advocate General may be, he is not a part of the enquiry" CJI remarked.
Sr Adv Vikas Singh appearing for intervenor submitted that the Bombay Act applies to a Math, but the 1997 act does not. The fact that it belonged to a Math was acknowledged in 1953, and therefore no enquiry is required now.
Singh further stated that Bombay Public trust act applies to Math, 97 didn't. Even in 1953 when rules framed it was held if Trust is deferred it will go back to Math. So if it belonged to Math doesn't have to be inquired into.
The Bench then asked what problem the State government has with Committee headed by a Supreme Court Judge, as has been ordered by the High Court
Dr Subramanian Swamy then informed the Court that a Supreme Court Judge is not chairman of the Committee.
"He is an Advisor. My brother here corrected me. We have self regulatory mechanism here." CJI said.
The Bench further clarified that it will only pass interim orders at moment.
The present matter involves questions of law relating to the exclusion of a Math and the temples attached, from State regulation and the protection given to religious denominations under Article 25 and 26 of the Constitution.
The pleas challenged the impugned final judgment and order of the High Court of Karnataka dated 10.08.2018 whereby it had quashed the Government Order dated 12.08.2008 by which the Gokarna Mahabaleshwara Temple was de-notified from the purview of Section 23 of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997
The Karnataka High Court had in August 2018 quashed government's 2008 order handing over the management of the Mahabaleshwara temple to Sree Ramachandrapura Mutt.
The court had also constituted a overseeing committee, headed by the Uttara Kannada Deputy Commissioner (DC), to monitor the daily affairs of the Mahabaleshwara and other allied temples, and had appointed B.N. Srikrishna, a former judge of the Supreme Court, as adviser to the committee.