Judgment :- 1. This appeal is by the aggrieved Writ Petitioners in W.P.No.17580/2006 which petition was short circuited by a overzealous government and its counsel, resulting in the following order by the learned Single Judge: “The learned Government Advocate submitted that the order dated 12.08.2006 by virtue of which the impugned notification dated 17.11.2006 in this writ petition has been withdrawn. The notification dated 12.08.2006 has superceded the earlier notification. TYhere4fore, this writ petition does not survive for consideration. The writ petition being infructuous, is accordingly dismissed.” The appellants have questioned not only the legality of the ordr4 passed by the learned Single Judge but also the method and manner in which the order has been brought into existence. 2. Appeal has not only generated considerable debate and leading to heated arguments many a times as the impugned orders obtained by the State by recourse to sharp practices for getting the writ petition dismissed as having become infructuous. 3. Appellants had, by filing the Writ Petition questioned the legality of a Government Notification dated 17.11.2006 issued by the State Government through the Department of Revenue (Mujarai) copy produced at Annexure-A to the Writ Petition as under the said order the State Government had sought to appoint an incharge Executive Officer to the vacant post of the Executive Officer at Sri.Mahabaleshwara Temple, Gokurna, and had asked the Assistant Commissioner, Kumta, to hold additional charge of this post and to function as the Executive officer of the temple as the post had remained vacant until passing of fresh orders. 4. 4. The first petitioner being Sri.Samstana Mahabaleshwara Devaru, a registered Trust under the Bombay Public Trust Act, represented by its Managing Trustee Sri.Balachandra Vigneshwara Dixit and the second petitioner being the very trustee, who have presented the writ petition contending interalia that the temple being one of the ancient temples situated in the coastal Karnataka region attracting thousands of devotees every day, that the temple was governed by the Bombay Public Trust Act; that the forefathers of the second petitioners had functioned as hereditary trustees of the Trust and the temple; that the father of the second petitioner had died on 03.11.2004 and at the time of his demise he was performing the duties as a Managing Trustee in his capacity as hereditary trustee; that the 2nd petitioner has continued to function in that capacity after the death of his father; that the State Government impleaded as 1st respondent in the writ petition had even recognized this position of the second petitioner’s father being the hereditary trustee and was functioning as Managing Trustee of the temple till his death on 03.11.2004; that in a writ petition that had been filed by the 1st petitioner before this Court in W.P.No.33012-15/2003 questioning the legality of the provisions of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997, (hereinafter referred to as the ‘Act’ for short) in the State Government had come up with an application seeking for permission to appoint an Administrator to the temple on the demise of the erstwhile Managing Trustee i.e., the father of the petitioner who9 died on 03.11.2004. While no orders had been passed on the application filed by the State Government, the 2nd petitioner had continued to discharge the functions of a Managing Trustee. While no orders had been passed on the application filed by the State Government, the 2nd petitioner had continued to discharge the functions of a Managing Trustee. The petitioners were taken by surprise by the issue of the impugned notification purporting to appoint the 2nd respondent-Assistant Commissioner of Kumta as the incharge Executive officer of the temple; that the notification is illegal, without jurisdiction and amounted to arbitrary interference with the rights of the petitioner, that it was in violation of the principles of natural justice, that the State Government nor the 2nd respondent had no right to interfere with the management of the temple nor had authority over the temple under the socalled order of appointing the Assistant Commissioner of the Sub-Division as the in charge Executive Officer of the temple to hold the additional charge of the post of Executive Officer and as the petitioners were aggrieved by this notification, had approached the court for quashing the notification, urging that the notification amounted to violation of the rights guaranteed in favour of the petitioners under Article 25 and 26 of the Constitution of India and is also violative of Article 14 of the Constitution of India. An interim prayer was also sought for to stay of the impugned notification. 5. The writ petition which had been presented on 05.12.2006 has come up for preliminary hearing on 08.12.2006 before the court and while the Government Advocate had been directed to take notice for the respondents and on 12.12.2006 this court noticed that the learned Government Advocate was seeking further time to seek instructions and to file objections etc., when the matter was directed to be posted to 18.12.2006 and at the instance of the petitioners, an interim order directing the parties to maintain statusquo as on day was passed. 6. The interim order passed on 12.12.2006 was extended until further orders in terms of the order passed on 18.12.2006. 6. The interim order passed on 12.12.2006 was extended until further orders in terms of the order passed on 18.12.2006. Statement of objections were filed on behalf of the respondents to the writ petition averments as on 18.12.2007 and it was interalia averred in the objection statement that the temple which was being managed under the provisions of the Bombay Public Trust Act, 1950 and for the purpose of smooth administration of the temple one post of Executive Officer was created by the Government in the year 1988 by its order dated 18.07.1988 in G.O.No. RD 93 Musevi 88, for a period of one year from the date of issue of the order and that the post was being continued every year as per Appendix-B to the budget of the State and even on day the post was being continued in the State budget. While the averments in the writ petition was sought to be denied, the claim of the petitioner as a Trustee or hereditary trustee and managing the affairs of the temple was disputed and it was pleaded that petitioner had no right to manage the affairs of the temple in any capacity. While the averments in the writ petition was sought to be denied, the claim of the petitioner as a Trustee or hereditary trustee and managing the affairs of the temple was disputed and it was pleaded that petitioner had no right to manage the affairs of the temple in any capacity. The earlier W.P.No.33012/2003 filed by the father of the 2nd petitioner was, while not disputed and the developments with regard to the validity of the act initially upheld by the single bench and later on found fault by the division bench and the appeal by the State Government against the order of the Division Bench were all narrated and the dismissal of W.P.No.50846/2004 which had been filed by the 2nd petitioner as per order dated 17.10.2006 was relied upon to plead that this writ petition is also not tenable and to be dismissed, it was also pleaded that the 2nd petitioner was unauthorisedly managing the affairs of the temple; that the 2nd petitioner had no right to continue in the management of the temple and the other averments in the writ petition was neither correct nor proper but on the other hand misleading; that the status claimed by the writ petitioners is not recognised in law; that subsequent to the demise of the 2nd petitioner’s father in the year 2004 as the management of the temple was not satisfactory and there being no proper management of the accounts and revenue to the temple and the temple hundis being not opened, and as they were over flowing and there being no proper facilities to the devotees visiting the temple, there was need for filling up the post of Executive Officer of the temple for proper management; that the 2nd petitioner had without the authority of law retained the jewels and other properties and the records of the temple belonging to the temple and therefore had been directed to hand over them to the Executive Officer and the appointment being purely an administrative order within the executive powers of the State Government in terms of Article 162 of the Constitution of India, the order was a valid order, no interference was called for in exercise of the writ jurisdiction and therefore pleaded for dismissal of the writ petition. 7. When the matter stood thus for some time suddenly the State Government became active by passing a series of orders. 7. When the matter stood thus for some time suddenly the State Government became active by passing a series of orders. It appears the State Government had issued a notification on 12.08.2008 purporting to be, in exercise of its powers u/s 23 of the Act, withdrawing the earlier notification dated 01.05.2003 which was also notified u/s 23 of the Act notifying the 1st petitioner temple, in the list of temples notified for the purpose of Section 23 of the Act. 8. It is the version of the State Government that close on the heels of the Notification dated 12.08.2008 withstanding the earlier notification of 01.05.2003, another notification dated 16.08.2008 was passed withdrawing the earlier4 order dated 17.11.2006 which had been issued by the government and impugned in the writ petition, i.e., by the notification dated 16.08.2008 the Government had withdrawn the earlier notification dated 17.11.2006 with effect from 14.08.2008. 9. It is in the wake of this development the State Government filed a memo dated 18.08.2000 but filed before this Court, in the court hall on 19.08.2008, for disposal of the writ petition. The memo reads as under: “In the above writ petition, the petitioner has challenged the Notification No.Kam E 103 Mu Se Vi 2006 dated 17.11.2006. The said Notification has been withdrawn by the Notification dated 16.08.2008. Consequently, the above writ petition has become infructuous. Therefore, it is prayed that this Hon’ble Court be pleased to dismiss the above writ petition as having become infructuous, in the interest of justice and equity.” 10. It is purporting to taking note of the development as indicated in the memo for disposal filed by the Government Advocate on behalf of the State Government, the learned single Judge passed the order dismissing the writ petition as having become infructuous. 11. It is this order of the learned single Judge dismissing the writ petition as having become infructuous which has given cause for filing the above writ appeal. 12. The matter had come up for orders on a couple of occasions earlier and the learned Government Advocate had been directed to take notice for the respondents. 11. It is this order of the learned single Judge dismissing the writ petition as having become infructuous which has given cause for filing the above writ appeal. 12. The matter had come up for orders on a couple of occasions earlier and the learned Government Advocate had been directed to take notice for the respondents. The appeal itself was admitted as on 09.06.2009 and was directed to be listed on 22.06.2009 with the understanding that the appeal can be disposed of on that day as agreed to by the learned Additional Advocate General appearing for the State and Shri H.Subramanya Jois, learned senior counsel appearing for the appellants. As hearing could not take place on 22.06.2009, the matter was adjourned to 29.06.2009 and was heard on 29.06.2009 and continued today. 13. As hearing could not take place on 22.06.2009, the matter was adjourned to 29.06.2009 and was heard on 29.06.2009 and continued today. 13. The principle contentions urged on behalf of the appellant-writ petitioners by Shri H.Subramanya Jois, learned senior counsel is that the manner in which the State Government caused the passing of the orders to get the writ petition dismissed as having become infructuous was an action without bona fides; that the memo filed before the Court was not within the knowledge of the writ petitioners; that the writ petition had been got dismissed even before the petitioners could realize what was happening; that the orders and the action of the State Government was more pre-emptive of the rights of the petitioner and more in the nature of avoiding a proper scrutiny into the action of the State Government by this Court in the writ petition filed by the petitioners; that the writ petition, in fact, had not become infructuous and that the cause of action did survive for examination particularly as not only the issue of notification dated 17.11.2006 by the State Government which was challenged in the writ petition had affected the rights and interest of the writ petitioners but the State Government had gone ahead by passing orders and taking subsequent actions; that in spite of a clear and categorical interim order passed by this Court to maintain status quo in respect of the developments under the notification dated 17.11.2006, the State Government has, nevertheless, contravened the order passed by the Court and had taken action and passed orders in contravention of the court orders; that the action taken and the order passed in derogation and in contravention of the interim order passed by this Court had been made use of to project before this Court that the writ petition has become infructuous and had sought for dismissal of the writ petition; that the writ petitioners did not get genuine opportunity to oppose the same leave alone understanding the nature and the contents of the memo filed before this Court and the effect of the so-called subsequent notification dated 16.08.2008 withdrawing the earlier notification dated 17.11.2006 and the entire manner in which the order had been obtained at the hands of the learned single Judge reflected the anxiety and the mala fide intentions of the respondents; that the order is not tenable on the face of it and warrants interference by setting aside the same. 14. It is also submitted that it is the stand of the writ petitioners that the State Government had no competence to issue the original notification dated 17.11.2006 itself and, therefore, another subsequent notification is of no consequence so far as the writ petitioners are concerned and the subsequent notification has been issued only after the State Government had indulged in certain high-handed acts vis-à-vis the petitioners and it is to avoid the scrutiny of such highhanded action taken by the State Government and its Officers, the subsequent notification had been issued in a hurried, mala fide manner and the writ petition was got dismissed with the sole object of pre-empting scrutiny by this Court; that the very order passed by the State Government subsequently is not tenable in law and lacks jurisdiction hit by mala fide exercise of power and therefore, the order passed by the learned single Judge gets vitiated because of the manner in which it had been obtained by the State Government and the orders passed by the State Government be quashed and directions be issued to the State Government to restore the status prior to the issue of notification dated 17.11.2006. 15. The learned Advocate General appearing on behalf of the State Government has sought to support the order passed by the learned single Judge and submitted that there was no mala fide action on the part of the State Government. 16. It is submitted with reference to the provisions of the Act that the 1st petitioner-temple, in fact, comes within the definition of Hindu Religious Institution & Charitable Endowment Act, as per Section 2, within the meaning of sub-section 17 of Section 2 of the Act; that notification under Section 23 had been rightly issued by the State Government earlier, but noticing that the institution may be one coming within the scope of sub-section 4 of Section 1 of the Act, the State Government had decided to withdraw the earlier notification issued under Section 23 of the Act by deleting the institution from the list of notified institutions under Section 23 of the Act and, therefore, there was no mala fide or illegal action on the part of the State Government. It is also submitted that the notification impugned in the writ petition appointing an Executive Officer to the temple is a power, well within the jurisdiction of the State Government in terms of Section 45 of the Act; that it is part of the executive powers of the State Government as was contented in the writ petition itself, and therefore, there was nothing wrong in the issue of the notification dated 17.112006 and with the issue of notification 12.08.2008 deleting the name of the 1st petitioner-temple from the list of temples notified under Section 23 of the Act, it was realized that there was no occasion for the State Government to exercise powers in respect of the 1st petitioner temple and consequently, the Government had issued the notification dated 16.08.2008 for giving effect to the withdrawal of the appointment of the Executive Officer but with retrospective effect from 14.08.2008, neither there is any illegality nor any mala fide intention in the action and the powers exercised by the State Government, and if, the State Government has the power to issue the notifications dated 16.08.2008 and even the earlier notification dated 12.08.2008, no illegality is committed by the State Government and if such is the development, the earlier notification, which was questioned in the writ petition, having been withdrawn, nothing remained for examination or scrutiny by this Court and, therefore, writ petition having been dismissed, by the learned Single Judge, as having become infructuous, no further scrutiny was warranted in the writ petition and urged for dismissal of the writ appeal. 17. 17. While this is the position highlighted by the learned counsel for the appellants and the respondents, Shri J.S.Shetty, learned counsel appearing for the appellants has also drawn our attention to Section 45 of the Act and points out that the State Government could not have issued the earlier notification appointing the Executive Officer to the temple without following the procedure as contemplated under Sections 42 and 43 of the Act as the temple in question was not a declared institution and, therefore, the reliance placed on the availability of powers under Section 45 to the State Government to issue the earlier notification dated 17.11.2006 was not justified; that the notification dated 17.11.2006 was bad in law since inception and that the State Government having committed further illegalities on the strength of the notification dated 17.11.2006, the writ petition does not become infructuous, unless the State Government reverses it entire action which it had taken purporting to be based on and as a sequel to the notification dated 17.11.2006, and therefore, urged that the appeal should necessarily be allowed and the orders quashed inclusive of the subsequent action taken by the State Government purporting to be in continuation of the notification dated 17.11.2006. 18. We have bestowed our attention to the submissions made at the Bar. 19. The statutory provisions very clearly indicate that the State Government can take any action only in terms of the provisions of the Act whereunder it performs as a statutory functionary within the limits of the law as indicted in the statute. 20. Though reference has been made in terms of power available to the State Government under Article 162 of the Constitution of India, we do not find any sovereign executive power of the State being exercised in the present case, but only the statutory power of the State Government available under the Act. But that apart, when once an area is covered by a legislation and the statutes regulates the exercise of power under the enactment, even the power under article 162 of the Constitution of India, cannot be exercised, either at variance or in the contravention of the statute. 21. But that apart, when once an area is covered by a legislation and the statutes regulates the exercise of power under the enactment, even the power under article 162 of the Constitution of India, cannot be exercised, either at variance or in the contravention of the statute. 21. While we find that the State Government has acted in a hurried manner, in a manner which can raise or create suspicion about the bona fides of its actions, particularly, for issuing notifications dated 12.08.2008 and 16.08.2008 which all appears to be oriented towards pre-emptying the challenge to its notification dated 17.11.2008, which was the subject matter of Writ Petition No. 17580/2006, and this suspicion gets confirmed when we notice that the writ petition was got disposed of by filing a memo before the Court on 19.08.2008 and even when the petitioners had not been made known about the same, and moreso, when an interim order passed in the writ petition was very much in operation and was binding on the State Government, the entire action appears to be hit by not only mala fides but tainted with ulterior motive, and we are not even sure that even in law, the entire action of the State Government can be justified, particularly, if the State Government pleads ignorance or silence in respect of it sections following the issue of notification dated 17.11.2006. 22. Be that as it may. We find that the manner in which the State Government acted for getting the writ petition dismissed as having become infructuous leaves much to be desired. 23. While we do have a adversary system of litigation, an assertion by one party can be countered and defended by the other party, in writ jurisdiction where action questioned is that of the State and the complaint is by the citizen, the litigation does not necessarily be in the nature of adversary litigation but it is essentially of judicial review of the administrative action – a mandate on the Courts under the Constitution. 24. 24. What is examined in writ jurisdiction is the quality of the orders passed by the State Government; the manner in which the power is exercised by the State Government even when the power is available to it on the touchstone of the constitutional provisions and relevant statutory provisions; that any action taken by the State Government questioned before the Court, if, has to be sustained, it has to necessarily pass the twin tests of conformity to provisions of law and exercise of power in a proper and bona fide manner. 25. In the present case, we are not at all satisfied that the State Government has acted in a bona fide manner for bringing about the order passed by the learned single Judge. Assuming for argument’s sake that the State Government can exercise such powers, the question is as to in what manner the order dismissing the writ petition was obtained. 26. It is rather difficult to understand as to why the State Government was in such a great hurry to get the writ petition dismissed on a given date as a consequent to issue of the two Government Orders dated 12.08.2008 and 16.08.2008 while the writ petition was pending before the Court for more than two years. 27. The great hurry showed by the State Government for getting the writ petition dismissed that too as having become become infructuous is one which really causes concern for us and, we, strongly, deprecate such methods adopted by the State Government for pre-empting the cause of citizen before this Court and without proper scrutiny, by this court. 28. In a litigation between the subject and the State, it is expected that the State will always act in a fair, in a bona fide and dignified manner and shall not, at any rate, resort to cheap petty tactics, cheap methods and pre-emptive schemes. 29. An order obtained in a proper manner and on the merits of the contentions urged, not only ensures that the citizen goes back with the satisfaction that the cause has been examined and has received due attention but also vindicates the stand taken by the State Government for passing such order and for taking action challenged before the Court and the State Government out with a clean chit. 30. This course of action should never be sought to be avoided by the state Government. 31. 30. This course of action should never be sought to be avoided by the state Government. 31. We are of the clear opinion that in the present case that has not happened as the writ petition was got dismissed in a hurried manner by the memo filed by the learned Government Advocate before the Court and in the course of hearing of the case. 32. It is a salient requirement of law that a proper opportunity is always given to the other side before taking any adverse action. We notice that the State Government by its conduct and by filing the memo was getting the writ petition filed by the petitioners dismissed and that too as having become infructuous. The conduct of the State Government is neither fair nor proper. This is not the conduct and method we expect from the highest governance in the State and the Executive organ of the State. 33. It is not necessary to go into the legality or the merits of the orders though the learned Additional Advocate General has sought to defend the same contending that the action taken and the orders passed by the State Government is fair and proper. 34. We are of the view that the action taken by the State Government, requires proper scrutiny by this Court and it is also desirable that the matter is examined in an adequate manner and to the satisfaction of the petitioners and also as to whether the writ petition had become infructuous. 35. It is for this reason that without going into the further aspects of the order and actions of the State Government, we deem it proper to allow this appeal, set aside the order passed by the learned single Judge, and the writ petition is restored, so that the matter deserves the attention it demands before the learned single Judge and the writ petitioners have full opportunity to present their version both on the legality of the orders passed any also on the effect brought about by the orders passed by the State Government by issue of the subsequent notification and as to whether it, in fact, renders writ petition infructuous. 36. We direct the Registry to re-list the writ petition before the single Bench of this Court. 37. Accordingly, appeal is allowed. 38. 36. We direct the Registry to re-list the writ petition before the single Bench of this Court. 37. Accordingly, appeal is allowed. 38. Shri K.B.Adhyapak, learned Government Advocate hands over a demand draft bearing No.480493 dated 25.06.2009, drawn on Reserve Bank of India for Rs.25,000/-, being the cost levied by this Court in this proceedings in terms of the order dated 22.06.2009. Shri J.S.Shetty, learned counsel, receives the draft on behalf of the petitioners and acknowledges the receipt of the same.