Writ Petition No. 158 of 1996

22nd February, 1999

Petitioner Counsel: Shri. M. B. D'COSTA
Respondent Counsel: Shri. H. R. BHARNE,Shri. L. V. TALAULIKAR

JUDGMENT

KHANDEPARKAR, J.:- In the present Petition, the following points arise for determination :-

(1) Whether the 'Regulamento das Mazanias', i.e. Devasthan Regulations, empower the Government to appoint a Managing Committee to frame bye-laws for a Devasthan when such a Devasthan has already bye-laws approved by the Government ?

(2) Whether the Government has powers to dissolve an elected Managing Committee of a Devasthan without hearing the Committee ?

(3) Whether the Government can appoint strangers in the Managing Committee of a Devasthan in exercise of powers under article 45 of the Devasthan Regulations ?

(4) Whether the provisions of Article 428 of the Devasthan Regulations can be invoked in relation to Devasthans which had already bye-laws approved by the Government ?

2. The facts, in brief, relevant for the decision are that the petitioner is the Mahajan of the Temple of Shree Maya Kelbai and its affiliates. The bye-laws of Shree Maya Kelbai and its affiliates were approved by the Government by Order dated 22-10-1965 published in the Government Gazette dated 18th November 1965, Series I, No. 34. On 2nd November 1995, the Government by its Order published in the Official Gazette dated 6th November 1995, Series II, No. 31 dissolved the existing elected Committee of the said Temple and its affiliates and appointed a new Managing Committee till fresh elections are held, comprising of the respondents nos. 3 to 10. By the same Order dated 2nd November 1995, the said newly appointed Committee was directed to frame fresh bye-laws of the said Temple and its affiliates as per the model form of bye-laws of Devasthan circulated vide Memorandum No. CAB/TEMPLE-Bye-laws/POLICY-40/1985 dated 21st October 1978 and submit the same for the Government's approval within 90 days in terms of Article 428 of the Devasthan Regulations. Thereafter, extraordinary General Body meetings of the Mahajans of the said Temple were held on 25th January, 18th February, 3rd March and 17th March of the year 1996. However, the notices convening the said meetings were not published in the Government gazette. The first three extraordinary General Body meetings were convened specifically to amend the bye-laws. In the last extraordinary meeting held on 17th March resolution was passed approving new bye-laws and the same were submitted to the Government for its approval. Thereafter, the Government issued fresh Notification dated 2nd August 1996 published in Official Gazette of 2nd August 1996, Series II, No. 18whereby the last paragraph of the Notification dated 2nd November 1995 was sought to be substituted by a new paragraph. By the said substitution, the direction to frame fresh bye-laws in terms of Article 428 of the Devasthan Regulations was substituted with the direction to the Managing Committee to amend the existing bye-laws of the said Devasthan and perform all functions as per the Devasthan Regulations and the instructions issued by the Government from time to time.

3. The petitioner complaining that the orders of the government directing to frame fresh bye-laws as well as to amend the existing bye-laws to be beyond competence of the Government and therefore, illegal and void and the dissolution of the elected Committee for such purpose to be bad for being without authority as well as the failure to give opportunity of being heard, prays for setting aside the said orders dated 2nd November 1995 and 2nd August 1996, for declaring all the four extraordinary meetings held from January till March 1996 to be illegal, null and void and, consequently, the resolutions passed therein also to be void and, further, to prohibit the respondents from acting in furtherance or in pursuance of the said orders dated 2-11-1995 and 2-8-1996 as well as to restrain the respondent no.1 from approving the newly framed bye-laws approved in the meeting held on 17-3-1996 as well as for direction to hold fresh elections of the Managing Committee for the said Devasthan forthwith.

4. On the other hand, it is the case of the respondents that inspite of the Court orders directing the dissolved Committee of the said Devasthan to enroll various decree-holders in different civil suits to be the Mahajans of the said Devasthan, the dissolved Committee intended to proceed further with the election process by passing the rights of those decree-holders and without including their names in the list of Mahajans and illegally prohibiting them from participating in the election in total disobedience to the Court orders as well as direction issued by the authorities and, therefore, the Government was compelled to take necessary action in terms of provisions contained in Article 44(2) read with Article 45 of the said Devasthan Regulations. It is the contention of the respondents that after issuing the Order dated 2nd November 1995, the Mamlatdar issued notices dated 13th December 1995 to the president of the dissolved Committee as well as the newly appointed Committee to remain present in the office of the Mamlatdar to handover the management of the Office records, but the dissolved Committee failed to comply with the directions of the Mamlatdar. According to the respondents, the amendment can be made to the bye-laws in terms of the provisions contained in Section I in Chapter II of the Devasthan Regulations.

5. It is undisputed that the constitutional management of the Bodies of Mahajans of the Temples belonging to Hindu communities in Goa are governed by the provisions contained in the Diploma No. 645 dated 30th march 1933, hereinafter called 'the Devasthan Regulations'. According to article 1 of the said Devasthan regulations, the Body of members of a Temple belonging to Hindu community is called "Mazanias" and the members thereof are called "Mahajans". In terms of the Devasthan regulations and, particularly, Article 44 thereof, the Government is empowered to dissolve an elected managing Committee of a Devasthan i.e. a Temple subject to prior hearing of the Committee to be dissolved. The dissolution is permissible on four different counts as specified in the said Article and it includes the ground of disobedience to the legal warnings and lawful orders issued by authorities to the Committee. The Committee can also be dissolved if its management is prejudicial to Devasthan or it fails to render accounts in conformity with the provisions of law. Article 45 of the Devasthan Regulations makes it incumbent upon the Government to appoint, on recommendation of the Administrator of the concerned taluka, a new Committee to replace the dissolved Committee till the elections of the new Managing Committee in terms of the Devasthan Regulations are held. The proposal of the Administrator as far as possible has to be of the able Mahajan. Moreover, the Administrator may also recommend a person who is not able Mahajan but with proper justification for the same.

6. Perusal of Articles 44 and 45 of the Devasthan regulations makes it abundantly clear that the Government is sufficiently empowered to dissolve an elected Committee of a Devasthan when the management of the Temple by such Committee become prejudicial to the Devasthan or when the Committee disobeys the lawful orders issued by the authorities. Moreover, such dissolution has to be preceded by a proper opportunity of being heard to the Committee to be dissolved. Article 44 of the Devasthan Regulations does not exclude principles of natural justice and, on the contrary, makes it incumbent for the Government to give a fair opportunity of being heard to the Committee to be dissolved before taking any decision for the dissolution of the Committee.

7. Once a Committee is dissolved, Article 45 of the Devasthan Regulations makes it compulsory for the Government to appoint another Managing Committee for such Temple till the new election for the regular Managing Committee is held in terms of the Devasthan Regulations. Moreover, the proviso to the said Article clearly provides that such committee shall comprise of the able Mahajans of the concerned Devasthan and only in justifiable cases the Administrator may propose the names of the strangers to be appointed on such Committee of the Devasthan. In other words, in case the Administrator proposes any name of a person who is not a Mahajan of a Devasthan to be appointed as a member of a Committee to be constituted in terms of Article 45, then the Administrator has to give reasons for proposing such a stranger to be appointed on the Managing Committee. Appointment of a stranger on such Committee cannot be a matter of course. The justification should necessarily disclose why the Administrator proposes to exclude the able Mahajan of the Devasthan from being appointed on such Committee.

8. The fact that the Devasthan of Shree Maya Kelbai and its affiliates had duly approved bye-laws pursuant to the Order dated 22nd October 1965 published on 18th November 1965 is not in dispute. In fact, the petitioner has produced a copy of the Government Gazette wherein said bye-laws were published. The Order dated 22nd October 1965, which was published along with the said bye-laws in the said Government Gazette clearly states that necessary sanction had been accorded to the said Regulations of the said Devasthan by the Director of Civil Administration Services. The said sanction order was issued by the order and in the name of Lieutenant Governor of Goa, Daman and Diu as Goa was then an Union Territory along with Daman and Diu.

9. Undoubtedly the direction for framing of new bye-laws on the line of model bye-laws was issued in terms of Article 428 of the Devasthan Regulations. Article 428 is included in Chapter IV of the Devasthan Regulations which provides for "Transitory Provisions" in the said Devasthan Regulations. The English translation of Article 428 made available to us reads thus.

"Art. 428. - The bodies of members (mazanias) which are since long in the power of being considered to be constituted, even though they do not have bye-laws approved, should ask within an inextensible period of 90 days for the approval of their bye-laws, prepared according to the prescriptions under this regulation.

Para 1 - It shall be the duty of the Administrator to issue necessary instructions and measures for the execution of this article, reporting the matter to the Directorate of Civil Administration, after 90 days, for due purposes.

Para 2 - In the event of non-compliance of the provision under this article, these associations shall be declared dissolved and their properties shall be applied in benefit of public welfare, according as it is decided by Governor General, at the Permanent Section of Government Council."

On plain reading of the said Article 428 it is apparent that the provisions contained in this Article 428 were necessarily of transitory nature applicable to the Bodies which were yet to be registered and which were yet to have bye-laws at the time of commencement of Devasthan Regulations in the year 1933 and not thereafter. Article 428 clearly states that the Bodies of Mahajans which had been in existence since long but which did not have bye-laws already approved, should frame the bye-laws and submit the same for approval within 90 days. By no stretch of imagination, Article 428 can be said to be empowering the Government to invoke powers therein in the year 1995, more than 60 years after the enforcement of the said Regulations. Being so, on the face of provisions contained in Article 428, the order dated 2nd November 1995 directing the newly appointed Managing Committee to frame fresh bye-laws and to submit the same for the approval of the Government in respect of the Devasthan which already had the bye-laws duly approved by the Government, is totally illegal and ab initio void. The matter, however, does not rest there. The Government, by Order dated 2nd August 1996, sought to amend the Order dated 2nd November 1995 by excluding the said direction to frame new bye-laws and incorporating direction to amend the existing bye-laws.

10. It is the contention of the respondents that Section 1 of Chapter II of the said Regulations empowers the respondents to cause amendment to the exiting bye-laws. Section 1 of Chapter II comprises of Article 17 to 20 of the Devasthan Regulations. In terms of Article 17 a Body of Mahajans in order to have legal constitution is required to have its bye-laws duly approved by the Government. In terms of Article 18 approved bye-laws are to be prepared by Special Committee appointed by the Government and the proviso thereof requires that such draft should be placed for discussion and approval by the Body of Mahajans and such Body may introduce necessary alterations and amendments as they may consider just and convenient in such draft of bye-laws. It further provides that the draft so approved after deliberations by a majority of the Mahajans, should be forwarded to the Administrator of the Taluka and the Administrator thereupon shall submit the same to the Government along with his remarks thereon. Article 19 empowers the Body of Mahajans to deliberate and to approve further amendments to the bye-laws provided that such amendments shall not contradict the basic organization and the vested rights of the Mahajans. Article 20 provides that the bye-laws approved by the Government are to be published in the Government Gazette. In other words, there is no doubt that Article 19 empowers the Body of Mahajans to cause necessary amendment to the existing bye-laws of a Devasthan provided the same does not contradict the basic organization and the vested rights of the Mahajans. However, nowhere, either in Section 1 of Chapter II of the said Regulation or in any other Articles of the said Regulations there is any provision empowering the Government to direct the Body of Mahajans to amend the existing bye-laws either in terms of the model bye-laws or in any other particular manner. In fact, the Devasthan Regulations nowhere empower the Government to give any such direction to amend the existing bye-laws in a particular manner. The Order dated 2nd August 1986 clearly mandates the Managing Committee to amend the existing bye-laws and to perform all functions as per the Regulations and instructions issued by the Government from time to time. It cannot be disputed that the Managing Committee of the Devasthan is bound by the provisions contained in the Devasthan Regulations and the lawful instructions issued by the Government from time to time, but the provisions contained in the Devasthan Regulations nowhere empower the Managing Committee to cause any amendment in the existing bye-laws. The provisions empowering amendment to the existing bye-laws clearly specifies that such power is vested in the Body of Mahajans and not with the Managing Committee of a Devasthan. This is clear from the provisions contained in Article 19 of the Devasthan Regulations referred to above. Being so, the Order dated 2nd August 1996 requiring the Managing Committee to cause amendment to the existing bye-laws cannot be stated to be in consonance with the provisions of the Devasthan Regulations and, on the contrary, the same is contrary to the provisions contained therein and, therefore, cannot be held to be sustained and is liable to be quashed.

11. As already observed above, the Government is empowered to dissolve the elected Committee. But such dissolution has to be preceded by a proper opportunity of being heard to the Committee which is sought to be dissolved. In the case in hand, undisputedly there was no prior hearing given to the dissolved Committee. Shri Bharne, the learned Government Advocate, sought to rely upon two letters, being letter dated 25-3-1994 by Deputy Collector addressed to Under Secretary (Revenue) and the other dated 23rd February 1993 by the Mamlatdar of Bicholim addressed to the Collector of North Goa, in support of his contention that the dissolved Committee was sufficiently heard in the matter before passing the Order dated 2nd November 1995. Perusal of letter dated 25-3-1994 by the Deputy Collector to the Under Secretary (Revenue) discloses that the Mamlatdar of Bicholim had issued show cause notices to the President and Attorney of the Managing Committee for not implementing the Court's Order dated 9-11-1990 and the same notices were duly replied by the Managing Committee. The Court's Order dated 9-11-1990 was directing the Managing Committee to include names of certain persons as the Mahajans of the Devasthan. The said letter also refers to a report by the Mamlatdar of Bicholim dated 23rd February 1993 with a proposal for dissolution of the existing Committee and the appointment of an ad-hoc Committee. The letter does not disclose the reason for such report by the Mamlatdar. The letter also discloses that the Managing Committee and representatives of four aggrieved families were also heard by the Collector on 26-2-1993 and a settlement was arrived at which was not honoured by the Managing Committee. Moreover, letter dated 23rd February 1993 by the Mamlatdar of Bicholim to the Collector of North Goa discloses that the election of the Managing Committee which was scheduled in February 1992 was stayed by the Civil Court by its Order dated 6th February 1992 and that the old Committee though its tenure had already elapsed and according to the Mamlatdar, in terms of Article 40, para 4 of the Devasthan Regulations, the old Committee could not have continued further and in view of Article 45, therefore, he proposed the names for the new Committee till the elections are held. It was those names which were accepted by the Government and the new Committee was accordingly appointed by Order dated 2nd November 1995. The affidavit filed by t he respondent no.5 who is the attorney in the newly appointed Committee also discloses that it was only after the Order dated 2nd November 1995 that a notice was issued dated 14th December 1995 by the Mamlatdar to the President of the dissolved Committee as well as that of the new Committee to remain present in the Office of the Mamlatdar. All these facts clearly disclose that the dissolved committee was never heard before invoking the powers under Article 44 of the Devasthan Regulations by the Government. Undisputedly, the dissolution of the old Committee was on the ground of Article 44(2) which says that the Committee can be dissolved in case of the disobedience to the legitimate warnings or lawful orders by the authorities to such Committee. The contention of the respondents is that the Committee was dissolved on account of failure on the part of the dissolved Committee to include the names of the various persons who were directed to be enrolled as the Mahajans of the Temple by the Civil Court. In other words, it was merely on account of failure to comply with the Order of the Civil Court that the action in terms of Article 44(2) of the Devasthan regulations was taken by the Government and before taking such action, the dissolved Committee was never heard though such hearing was mandatory in terms of provisions of the said Articles. When a provision in a Statute clearly makes it mandatory to comply with the basic principles of natural justice and the authority who is acting under such provision does not afford such opportunity to the affected party or parties, the action by the authority cannot be termed as the lawful and, on the contrary, it would be certainly void and bad in law. Considering this basic principle of law and there being clear violation on the part of the Government in complying with the basic principles of natural justice which were otherwise specifically required to be complied with under Article 44 before dissolving the elected Managing Committee of the Devasthan, the Order dated 2nd November 1995 and amended Order dated 2nd August 1996 cannot be sustained and are liable to be quashed and set aside.

12. Once the Orders dated 2-11-1995 and 2-8-1996 are quashed and set aside, needless to say that all the decisions and actions taken pursuant to the said orders are rendered illegal and null and void and, therefore, the proceedings of meetings held in January to March 1996 and the resolutions passed therein including framing of new bye-laws and/or amendment to existing bye-laws are to be quashed and set aside.

13. Consequently, the points for determination formulated hereinabove are to be answered as under :-

(1) The Devasthan Regulations do not empower the Government to appoint a Committee to frame bye-laws for a Devasthan when such Devasthan has already bye-laws approved by the Government;

(2) Any order dissolving an elected Committee of a Devasthan without hearing such Committee is bad in law being not permissible under the said Regulation;

(3) In exercise of powers under Article 45 of the Devasthan Regulations, a stranger cannot be appointed on the Managing Committee by the Government, unless either no Mahajan is available for such appointment or the Mahajans available cannot be so appointed for valid and sound lawful reasons and that there are justifiable lawful reasons for appointing stranger on such Managing Committee.

(4) Provisions contained in Article 428 of those Regulations are of transitory nature and do not apply to the Devasthans which have already approved bye-laws.

14. Before we conclude, it is pertinent to note that inspite of the fact that already there were 90 Mahajans of the Devasthan, the Government thought it proper not to appoint any of those members on the Managing Committee and all the 8 members were appointed from those who are directed to be enrolled by the Court's Order. In other words, the Committee constituted by the Government is of the persons who were not the enrolled Mahajans of the Devasthan at the time the said Committee was constituted. One fails to understand the logic behind constituting a Committee of the persons otherwise than the already enrolled Mahajans of the Devasthan. Such an action ex facie discloses arbitrariness on the part of the authority constituting the Committee.

15. In the result, therefore, the Petition succeeds. The impugned Orders dated 2nd November 1995 and 2nd August 1996 are hereby quashed and set aside. Consequently, the Committee constituted by the said Orders also is forthwith dissolved. The proceedings in the meetings held on 25th January, 18th February, 3rd and 17th March of the year 1996 are declared to be illegal, null and void and, consequently, resolutions passed therein as well as the bye-laws approved therein are declared to be illegal, null and void. The respondents are restrained from acting in furtherance or in pursuance of the impugned Orders. the respondent no.1 is further prohibited from approving the bye-laws which are stated to have been approved in the meeting held on 17-3-1996. The respondents nos. 1 and 2 are further directed to take immediate steps for the election of the new Committee for the said Devasthan and in any case to hold such election within a period of three months from today and to file the necessary compliance report to that effect within thirty days from the date such election is held. The respondents nos. 1 and 2 are further directed to take steps forthwith to appoint a new Committee in exercise of powers under article 45 of the Devasthan Regulations for the purpose of management of the Devasthan till the newly elected Committee takes charge of the same. The steps in this regard should be taken by the respondents nos. 1 and 2 at the earliest possible and, in any case, within two weeks from today. No order as to costs.

Petition allowed.