Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 320 of 2008 (M/S) Shri Badrinath Shri Kedarnath Mandir Samiti, Joshimath, District Chamoli, through its President Anusuya Prasad Maikhuri and another. …… Petitioners. Versus State of Uttarakhand, through Secretary, Paryatan Evam Dharmaswa Anubhag, Civil Secretariat, Dehradun and another. … Respondents. Sri Alok Singh Senior Advocate with Sri R.P.Nautiyal, learned counsel for the petitioners. Sri L.P.Naithani, learned Advocate General with Sri J.P.Joshi, Chief Standing Counsel for the State-respondents. Date October 03, 2008 Hon’ble B.S.Verma, J. Learned counsel for both the parties have agreed that this writ petition may be disposed of finally at the admission stage. This writ petition has been filed for quashing the impugned notification dated 6.2.2008 (Annexure No. 15 to the writ petition), issued by Secretary, Paryatan Evam Dharmaswa Anubhag, Uttarakhand, Dehradun-respondent no.2. Brief facts, giving rise to the present writ petition, according to the petitioners, are that Shri Badrinath Shri Kedarnath Mandir Samiti, Joshimath, District Chamoli is a committee (hereinafter referred to as the Committee), duly constituted by the Government under the provisions of U.P. Shri Badrinath and Shri Kedarnath Temples Act, 1939 (hereinafter referred to as the Act) and the petitioner no. 2 is duly appointed President of petitioner no. 1 vide Government Notification dated 26-11-2005. The petitioner no. 1 consists of a President, a Vice President and members and the appointments are made by the Government under the provisions of the Act. The Vice President and other members were also appointed by the Government by different Notifications and these 2 appointments were made for a period of three years from the date of taking charge as per provision of Section 8 of the Act. Copies of Government Notifications dated 26.11.2005, 22.3.2006. 2.5.2006, 26.7.2006 and 23.5.2006 have been annexed as Annexure Nos. 1 to 5 to this writ petition respectively. According to the petitioners, these appointments were made when the government formed by the Congress Party was in power in the State, which was replaced by the Bhartiya Janta Party government but after 2007 elections and since then political pressures was put for dissolution of the committee. It has been stated in paragraph no. 4 of the writ petition that an agitation was made by the B.J.P. workers at the time of Janta Darbar of the Chief Minister and thereafter the Principal Secretary to the Chief Minister by his letter dated 7.5.2007 requested the Secretary, Paryatan and Dharmaswa to make a report about the status of present committee. Consequently, on 18-5-2007 the Secretary, Uttarakhand Government Dehradun issued a show cause notice to the Chief Executive Officer of the committee, directing him to file his explanation as to why action be not taken for irregularities in purchase of sandalwood worth Rs. 75 Lacs within a period of 15 days . Explanation of the President of the Committee was also called for. The Chief Executive Officer of the committee sent reply on 31.5.2007 explaining all the facts and circumstances of the matter and therein it was categorically stated that there was no irregularity in purchase of sandalwood. A copy of explanation submitted by him has been annexed as Annexure NO. 8 to the writ petition. On 3-1-2008 the Secretary, Government of Uttarakhand again issued a show cause notice to the petitioner no.2, directing him to file his explanation as to why action be not taken for irregularities in the functioning of the committee on several points, upto 18-1-2008, as detailed in Annexure No. 9. The Chief Executive Officer of the committee by his reply dated 11-1-2008 explained all relevant facts and circumstances and categorically stated that there is no irregularity in functioning of the committee 3 vide Annexure No. 10. The petitioner no. 2 also filed his explanation on 18-1-2008 before the Secretary, Government of Uttarakhand, Dehradun, wherein he categorically stated that the proceeding was initiated on account of political rivalry and false and concocted charges have been framed upon the petitioner no.2. An acknowledgement has been obtained thereof on 18-1-2008 vide Annexure No. 12. Ultimately, on 21-1-2008, the Secretary, Paryatan Evam Dgharmaswa Anubhag, Uttarakhand, issued a notification, by which he dissolved the committee and also entrusted the powers of committee to the District Magistrate Chamoli. It was also directed that the constitution of the committee shall be made within six months. The ground mentioned for issuance of notification is that no explanation/reply has been submitted by petitioner nos. 1 and 2 within the stipulated time. The petitioners challenged the notification-dated 21.1.2008 before this Court in Writ Petition No. 206 of 2008 (M/S) Shri Badrinath Shri Kedarnath Mandir Samiti and another Vs. State of Uttarakhand and another. An interim order-dated 31.1.2008 was passed in the writ petition whereby the operation of notification dated 21-1-2008 was stayed till the next date of listing. It was observed that the impugned order was passed without considering the explanation/reply filed by the petitioners. It was left open to the authority concerned to pass fresh orders after considering the reply submitted by the petitioners. The respondent no.2, again, issued a notification dated 6.2.2008 by which the committee was dissolved only to make the writ petition of the petitioners infructuous. A copy of the Notification has been annexed as Annexure No. 15 to the writ petition. After issuance of the notification dated 6.2.2008, the petitioners withdrew the said writ petition no. 206 (M/S) of 2008 with liberty to file a fresh petition and consequently, the present writ petition has been filed. The notifications under challenge are contrary to each other because in the earlier notification dated 4 21.1.2008 it was stated that the petitioners did not submit any explanation against show cause notice whereas in the subsequent Notification grounds have been mentioned. According to the petitioners, the respondent authorities were politically prejudiced with them and there had been no application of mind before issuing the impugned notification against the petitioners. As per provisions of the Act, the petitioners were appointed for a term of three years and the respondent authorites have misused the powers by dissolving the committee before expiry of its term. The allegations levelled in the show cause notice against the petitioners are vague, baseless and unproved and they could not be the basis of dissolution of the statutory body. It has been alleged that the respondent authorities deliberately concealed the explanations filed by the petitioners earlier and the respondent authorities could not have issued the subsequent notification without issuing fresh show cause notice to the petitioners. The notification-dated 6.2.2008 is against the provisions of law. The petitioner no. 2 was a Member of the Legislative Assembly of the State at the time of his appointment as President of the committee and he had won the election from the Congress Party, while the B.J.P. government has come into power from March 2007, the proceeding and the order passed against the petitioners is a result of political rivalry, which is not permissible under the law. There are provisions for dissolution and super session of the committee under Section 11 of the Act. The enquiry made by the State Government and all enquiry reports are in favour of the Committee, therefore, the impugned notification/order passed by the respondents is illegal, arbitrary and against the provisions of law. The impugned notification is against the provisions of sub- section (2-A) of Section 11 of the Act. The petitioners have also filed supplementary affidavit and it has been stated that in the Writ Petition No. 206 of 2008 (M/S), the respondent authorities filed a counter affidavit wherein 5 they stated that the respondent authorities vide Notification dated 6.2.2008 also cancelled the appointment of new President Anusuya Prasad Bhatt and Vice President Smt. Darshani Rawat of the committee, but the news-item dated 6.3.2008 published in Hindi Daily “Amar Ujala” shows that both of them have been reappointed by the committee, while the writ petition was pending for disposal before the Court. By another supplementary affidavit, the petitioners have filed as many as 36 Annexures, which were filed by them along with their reply dated 11-1-2008. These Annexures are the documents, which were supplied by the petitioners in support of their explanation submitted to the State Government in reply to the notice dated 3-1-2008. The respondents have filed counter affidavit. The affidavit has been duly sworn in by Sri Suman Singh Waldia, Deputy Secretary, Department of Religious Affairs, Government of Uttarakhand, Dehradun. It has been stated therein that the committee has been dissolved by notification dated 6-2-2008 and till the constitution of new committee the District Magistrate Chamoli has been appointed as Administrator thereof. It has also been stated that the notification dated 6-2-2008 was issued after considering the reply submitted by the petitioners in pursuance to show cause notice. It has also been stated that by order dated 5-3- 2008 one Sri Ansuya Prasad Bhatt has been appointed as Chairman of the committee for a period of three years. It has been stated that an enquiry was conducted and adequate opportunity of hearing was given to the petitioners before passing the order dated 6-2-2008. It has also been stated that various complaints were received for a number of irregularities in the duty as chairman of the committee and report was asked for from the Chairman and he was again granted further 15 days time therefor. The reply was submitted at a belated stage to the Secretary, Tourism. The order dated 21-1-2008 was withdrawn and subsequent order dated 6-2-2008 was issued on 6 merits. It has been stated that the appointment to the post of Chief Executive Officer (Mukhya Karyadhikari) of the committee was to made through the Government, but the said appointment/promotion was made through the committee illegally without jurisdiction. It has been denied that the committee was dissolved on account of political rivalry. It has also been stated that the order dated 6-2- 2008 was passed only after considering the reply of the petitioner. It has also been stated that as per provision of sub-section (2-A) of Section 11 of the Act, if the State Government is satisfied that it is necessary in the interest of the temple and its efficient management, it is within the domain of the State Government to dissolve the committee and direct the reconstitution of another committee in accordance with the provisions of the Act. It has also been stated that the appointments to the post of Chairman and Vice Chairman have been made within a period of six months from the date of dissolution of the committee on 6-2-2008 as envisaged under Section 11 of the Act. Along with the counter affidavit, Annexure CA-1 has been filed, which is order dated 5-3-2008 passed by the State Government thereby one Sri Anusuya Prasad Bhatt has been appointed as Chairman of the committee. Annexure C.A.-2 is the copy of the notice dated 3-1-2008, whereby it has been intended to show that show cause notice was issued and opportunity of hearing was given to the Chairman of the committee. Annexure CA-3 has been filed to show that Additional Secretary of the State Government had directed the Mukhya Karyadhikari of the committee to submit his report in the matter of corruption crept in the working of committee within stipulated. Annexure CA-4 is the letter of the Principal Secretary, State Government addressed to Mukhya Karyadhikari of the committee dated 11-8-2006, wherein it has been mentioned that the approval of Sri Lokanand Sati to the post of Officer on Special Duty (Vishesh Karyadhikari) was cancelled by the Government on the ground that the promotion of Sri Sati was made by the committee beyond its jurisdiction. 7 Rejoinder Affidavit has been filed on behalf of the petitioners. The affidavit is duly sworn in by Sri Anusuya Prasad Maikhuri-the petitioner No.2. In paragraph no. 4 of the rejoinder affidavit, it has been stated that “it is wrong to say that the notification dt. 6.2.2008 has been issued after enquiring the complaints against the petitioners, in fact, the notification dt. 6.2.2008 has been issued by the respondents, only under political pressure and the notification dt. 6.2.2008 is politically motivated, which cannot be sustainable in the eye of law.” In paragraph no. 5, the following averments have been made:- “5. That the contents of paragraph no. 3(ii) of the counter affidavit are not admitted and are denied, in reply thereof, it is stated here that the notification dt. 6.2.2008 has been passed in furtherance of notification dt. 21.1.2008 and while issuing the notification dt. 6.2.2008, the respondents totally ignored the reply of petitioners. So far as the notification dt. 5.3.2008 is concerned, the same appears to have been passed by Gopan (Mantriparishad) Anubhag of Uttarakhand Government, whereas the Mantriparishad has no legal right or authority to appoint new Chairman, Vice Chairman and member of committee under the Act, 1939, which clearly shows that the impugned notification dt. 6.2.2008 is politically motivated, which has been issued only to make the earlier writ petition of petitioners infructuous. The intention of respondents is only to play with the orders of this Hon’ble Court and they, deliberately, issued the confusing order, which are against the provisions of Act, 1939.” In paragraph no. 7 of the rejoinder affidavit which has been filed in reply to the averments made in paragraph 5 of the counter affidavit, it has been inter alia stated that “it is further submitted here that after receiving the show cause notice dt. 3.1.2008, the petitioners submitted his reply dt. 18.1.2008 before 8 the respondents, but the same was not considered by the respondents and the notification dt. 21.1.2008 was issued by the respondents, dissolving the committee and removing the petitioner no.2 from the post of Chairman of committee. This notification was issued by the respondents, by saying that the reply of petitioners was not received by them within prescribed period, whereas the reply of petitioners was on the record of file concerned. The notification dt. 31.1.2008 was challenged by the petitioners in writ petition no. 206 (M/S) of 2008 before this Hon’ble Court and this Hon’ble Court, vide its order dt. 31.1.2008, stayed the operation of notification dt. 21.1.2008, but the respondents were given liberty to pass a fresh order, after going through the reply of petitioners and, thereafter, the respondents issued the notification dt. 6.2.2008, again removing the petitioner no.2 from the post of Chairman of committee and dissolving the committee, which was challenged by the petitioners in the instant writ petition. The only aim and object of respondents is to remove the petitioner no.2 from the post of Chairman of committee, due to political pressure, therefore, the notification dt. 6.2.2008 was also passed by the respondents in very illegal and arbitrary manner.” While denying the averments made in the counter affidavit, the averments made in the writ petition has been reiterated in the rejoinder affidavit by the petitioners. I have heard learned counsel for the parties and perused the averments made in the writ petition, supplementary affidavit, short counter affidavit, counter affidavit and rejoinder affidavit along with its annexures. Learned counsel for the petitioners vehemently contended that the impugned Government Notification dated 6-2- 2008 (Annexure No. 15 to the writ petition) is not tenable in the eye of law for the simple reason because there is no independent enquiry report conducted by the Government, on record against the 9 petitioners. Learned counsel has contended that the Secretary of the State Government had directed the Mukhya Karyadhikari of the committee to obtain the explanation of the Chairman of the committee in the matter of alleged irregularities in the functioning of the committee by letter dated 18-5-2007. The report was submitted by the Officer concerned by his letter dated 31-5-2007 (copy Annexure No. 8). There is no reliable and concrete material on record to substantiate the charges levelled against the committee. It is also argued by learned counsel for the petitioners that from a bare perusal of the impugned Notification dated 6-2- 2008, it is amply clear that neither any independent enquiry was conducted against the petitioners by appointing Enquiry Officer into the matter, nor proper opportunity was given to the petitioners to put forth their defence inasmuch as the State Government has recorded its prima facie satisfaction in respect of the complaints against petitioners for the first time by the impugned notification, but no show cause notice was given to the petitioners to put forth their defence and adverse order had been passed illegally and in an arbitrary manner. On the other hand, the learned Advocate General Sri L.P.Naithani, appearing for the respondents has contended that the State Government was well within its competence to pick and choose the adverse portions from the report submitted by the Chief Executive Officer (Mukhya Karyadhikari) of the Committee and the impugned notification is perfectly legal. A reference to Section 11 of the Act appears to be relevant, which deals with Dissolution and super session of Committee. Section 11 reads as under:- “11. Dissolution and super session of Committee.- (1) If in the opinion of the State Government the Committee is not 10 competent to perform, or persistently makes default in performing the duties imposed on it under this Act, or exceeds or abuses its powers, the State Government may, after due enquiry, by notification dissolve or supersede the Committee and direct the constitution of another Committee, in accordance with the provisions of this Act. (2) Before issuing a notification under sub-section (1) the State Government shall communicate to the Committee the grounds on which they ‘propose to do so, fix a reasonable time for the Committee to show cause against the proposal, and consider its explanation or objections, if any. (2-A) Without prejudice to the power of the State Government under sub-section (1) the State Government may, on being satisfied that it is necessary in the interest of the Temple and its efficient management, by a notification dissolve, the Committee and direct the reconstitution of another Committee in accordance with the provisions of this Act. (3) Where a Committee is dissolved or superseded under this section the State Government shall appoint a person to perform the functions and exercise the powers of the Committee until the constitution of another Committee. Provided that so far as may be, the other Committee shall be constituted within a period of six months from the date of such dissolution or super session: Provided further that consequent upon the dissolution of the Committee by the State Government on June 3, 1986, the other Committee may be constituted by December 31, 1991. (4) The State Government may fix a remuneration for such officer, and the same shall be paid from the temple fund.” From a careful reading of the provisions of Section 11 of the Act, it is crystal clear that the State Government is empowered to dissolve or supersede the Committee. Under sub- section (1) of Section 11 of the Act, if in the opinion of the State Government the Committee is not competent to perform, or 11 persistently makes default in performing the duties imposed on it or exceeds or abuses its powers, it is incumbent upon the State Government that the decision of dissolution or super session of the committee shall be taken only after ‘due enquiry’. It is further incumbent upon the State Government under sub-section (2) of Section 11 that the State Government shall communicate to the Committee the grounds on which they propose to take action and fix a reasonable time for the Committee to show cause against the proposal, and consider its explanation or objections, if any. Thus, it is amply clear that it is obligatory upon the State Government to issue a show cause notice to the Committee mentioning therein the intention of the State Government to dissolve or supersede the Committee on the particular grounds and the decision shall be taken after considering the explanation/objection of the Committee, if any. The State-respondents have taken the stand in their counter affidavit that various complaints were received for various irregularities in functioning the duty as Chairman of the Committee and report was asked from the Chairman by issuing the notice dated 3-1-2008 and earlier notices dated 17-5-2007, 18-5-2007 and 20-6- 2007 were issued to Temple Committee through Chief Executive Officer. These notices have been filed as Annexure CA-2 and Annexure CA-3 to the writ petition, meaning thereby that by these notices, the respondents contended that compliance of statutory provision of Section 11 of the Act had been made in the matter. In the notice dated 3-1-2008 issued to the Chairman of the Committee, it is mentioned that letter/notice dated 18-5-2007 was addressed to Chief Executive Officer whereby the pointwise report/explanation was called for by the State Government. The report was made available by the said Officer by his letter dated 31-5-2007 and dated 2-7-2007 and also by the Chairman by his letter dated 1-6-2007. After examination of the matter, the reports were not found satisfactory. However, it is mentioned in the notice that on the following points arising out of complaint [as detailed in the notice 12 points (1) to (5)] point-wise explanation was called for from the Chairman. It is very strange that in paragraph 2 of the said notice, it was mentioned that prima facie, it appeared to the Government that certain irregularities were committed by the Committee in the functioning of the Temple and the Government proposes to dissolve the Committee and the notice was being issued under Section 11(2) of the Act. Annexure No. C.A.-3 contains three letters- 1. first is the letter dated 17-5-2007 addressed to the Chief Executive Officer whereby factual report was called for on nine points by the Government; second is the letter dated 18-5-2007 whereby report was called on four points detailed in the letter which included irregularity in respect of purchase of sandalwood, regarding fraud in the entries of donation received in Kedarnath Dham, allotment of residential rooms to the devotees on arbitrary rates etc. etc. The explanation was required to be obtained from the Chairman within a period of 15 days. Again by letter dated 20-7-2007, the Chief Executive Officer was asked to submit report on a complaint from the public. Admittedly Mukhya Karyadhikari (the Chief Executive Officer of the Committee) is the Officer under the superintendence and control of the State Government and reports were called for from him. The reports submitted by the Officer concerned are admittedly not favarouble to the respondents. Learned Advocate General appearing on behalf of the State has vehemently urged that the legal requirement of Section 11(2) of the Act had been complied with by the respondents by issuance of notice dated 3-1-2008 (copy Annexure C.A.-2 to the counter affidavit) thereby the intention of the State Government to dissolve the Committee was communicated to the petitioners and they were required to put forth their defence by 18-1-2008, 13 therefore, there was no need to issue a second show cause notice to the petitioners. So far as the contention that the requirement of Section 11 of the Act has not been complied with in letter and spirit, it is admitted to both the parties that this Court passed an interim order in Writ Petition No. 206 of 2008 (M/S) Sri Badrinath & Sri Kedarnath Mandir Samiti and another Vs. State of Uttarakhand and another. In paragraph no. 10, this Court has observed as under:- “10. In the above circumstances, operation of the impugned order dated 21.01.2008 is stayed till the next date of listing keeping it open to the authority concerned to pass fresh orders after considering the reply submitted by the petitioners.” It is pertinent to note that the powers of the State Government under Section 11 of the Act are quasi judicial in nature and such powers are subject to judicial review. The learned counsel for the petitioners has vehemently contended that even if it may be presumed that compliance of mandatory provisions of Section 11 of the Act has been adhered to, the impugned notification dated 6-2-2008 cannot be sustained in the