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2013 DIGILAW 640 (HP)

Jiwanand Sharma v. State

2013-07-03

A.M.KHANWILKAR, KULDIP SINGH

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JUDGMENT A.M. Khanwilkar, Chief Justice (Oral): Heard counsel for the parties. 2. By this petition under Article 226 of the Constitution of India, in substance, the petitioners have challenged the notification, dated 3rd October, 2006. The said notification reads thus: “(Authorized-English Text of this Department Notification No.LCD-B(2)/2005 dated 3rd October, 2006 as required under article 348(3) of the Constitution of India) Government of Himachal Pradesh Language Art & Culture Department No.LCD-F(12)-2/2005 Dated Shimla-2, the 3rd October, 2006. “NOTIFICATION” Whereas the State Government is of the opinion that it is expedient and necessary in the public interest to take steps for the better administration, for the protection and preservation of properties appurtenant to “Shri Hanogi Mata Mandir, Aut Sub Tehsil, District Mandi, Himachal Pradesh”. Now therefore, in exercise of the powers conferred by the Sub-Section(1) of section 29 of the Himachal Pradesh Hindu Public Religious Institutions and Charitable Endowments Act 1984 (Act No.18 of 1984), the Governor, Himachal Pradesh is pleased to add the following temple at Sl.No.28 in Schedule-I of the aforesaid Act namely:- “Shri Hanogi Mata Mandir, Aut Sub Tehsil, District Mandi, Himachal Pradesh”. By Order Sd/- Principal Secretary (LAC) to the Government of Himachal Pradesh.” 3. Section 29 of the Himachal Pradesh Hindu Public Religious Institutions and Charitable Endowments Act, 1984 reads thus: “29. (1) The Government may, if it is of opinion that it is expedient or necessary in the public interest so to do, by notification in the official Gazette, add to, omit from, Schedule I any Hindu public religious institution and charitable endowment and on any such notification being issued, the Schedule-I shall be deemed to be amended accordingly. (2) Every such notification shall, as soon as possible after it is issued be laid before the Legislative Assembly of the State.” 4. The effect of issuing notification under Section 29 of the Act of 1984 is, essentially, to apply the provisions of the Act to such public religious institutions and charitable endowments covered under Schedule I. The ground on which that action is challenged, is that the notification, so issued by the State Government, was not laid before the Legislative Assembly of the State. No doubt, when the writ petition was filed, that requirement was not complied with. No doubt, when the writ petition was filed, that requirement was not complied with. However, it is indisputable that during the pendency of the writ petition, not only the notification pertaining to “Shri Hanogi Mata Mandir” was laid before the Legislative Assembly, but also of other Trusts, as is evident from the minutes of the Legislative Assembly, dated 10th August, 2009. In other words, the requirement of sub-section (2) of Section 29 of the Act has already been complied with in the present case. From the language of sub-section(2) of Section 29, we have no manner of doubt that it is a directory provision, as regards the requirement of time within which the notification issued by the State Government must be laid before the Legislative Assembly. The requirement to lay the notification before the Legislative Assembly of the State is, no doubt, indispensable, but no fixed time therefor has been provided in law. The expression used is “as soon as possible” after issuance of the notification. Indeed, the expression “as soon as possible” requires the authority to lay notification before the Legislative Assembly of the State at the earliest opportunity. In this case, it has been placed almost around 3 years from the issuance of the notification. That does not mean that the notification is rendered null and void or invalid. 5.The next ground urged before us is that before issuing such notification, opportunity of being heard ought to have been provided to the affected persons and, in particular, the persons, who were in the management of the Trust at the relevant time. In support of this submission, reliance is placed on the decision of the Apex Court in the case of Pavani Sridhara Rao v. Govt. of Andhra Pradesh and others1, and another decision in the case of Sri Kanyaka Parameswari Anna Satram Committee and others v. Commissioner, Hindu Religious & Charitable Endowments Deptt. and others2. Those decisions, however, in our opinion, deal with the situation of appointment of Executive Officer to take over the management of the Trust. 6.That, however, is not the purpose of issuing impugned notification under Section 29 of the Act of 1984. The effect of notification issued under Section 29 is only to apply the provisions of the Act of 1984 to the Trust, so notified by virtue of Section 1(3) of the Act. 6.That, however, is not the purpose of issuing impugned notification under Section 29 of the Act of 1984. The effect of notification issued under Section 29 is only to apply the provisions of the Act of 1984 to the Trust, so notified by virtue of Section 1(3) of the Act. It was open to the State Legislature to include the Trust, in question, in Schedule I, when the Act was passed in 1984 itself. However, that is being done by way of notification in exercise of power entrusted to the State Government under Section 29 of the Act; and the same has received approval of the Legislative Assembly after placing of the said notification before the Legislative Assembly, as per Section 29(2) of the Act. The counsel for the petitioners is not in a position to rely on any express provision in the Act of 1984, which mandates giving of prior notice or affording hearing to the Managers or Office Bearers of the Trust, in question, before including the Trust in Schedule I, so as to make the provision of the Act of 1984 applicable to such Trust. In the circumstances, the fact that the prior notice has not been given to the then Office Bearers of the Trust does not render the notification invalid. It is not a notification for appointment of Administrator or to supersede the Managing Committee of the Trust as such, which action can be resorted to in exercise of powers under provisions falling under Chapter V of the Act of 1984. If that action is resorted to, there is no manner of doubt that the principles of natural justice will have to be complied with and moreso, the procedure prescribed in Chapter V of the Act. 7. The next submission canvassed before us is that there was no material before the State Government to issue notification in question. The notification, in our opinion, on the face of it, mentions that it has been issued in public interest. There is nothing in the provisions of the Act of 1984 obliging the State Government to record reasons or factors, which weighed with the State Government, to issue such notification in public interest. The notification, in our opinion, on the face of it, mentions that it has been issued in public interest. There is nothing in the provisions of the Act of 1984 obliging the State Government to record reasons or factors, which weighed with the State Government, to issue such notification in public interest. Since the petitioners have raised that issue, the respondents have filed detailed affidavit placing on record the background on which the State Government was required to take the decision of inclusion of the Trust, in question, in Schedule I of the Act of 1984. It is not possible for this Court to do judicial review of the subjective satisfaction of the State Government on the factum of public interest. Entering into that thicket would require the Court to venture into whether the material before the State Government before issuing the notification was adequate and sufficient. That cannot be the scope of judicial review. 8. Taking any view of the matter, therefore, there is no merit in this petition. The same is dismissed, so also the pending application(s), if any.