Himachal Pradesh High Court
Kanta Devi vs Financial Commissioner (Appeals) And ... on 9 May, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 3079 of 2015
Date of Decision: 9.5.2016.
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______________________________ _________________________
[
Kanta Devi ......Petitioner.
Versus
Financial Commissioner (Appeals) and Ors ....Respondents.
Coram
of
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes
For the petitioner: Mr. Naveen K. Bhardwaj,
rt Advocate.
For the respondents: Mr. Rupinder Singh Thakur,
Additional Advocate General with
Mr. Rajat Chauhan, Law Officer, for
respondents No. 1 and 2.
Mr. Bimal Gupta, Senior Advocate
with Ms. Kusum Chaudhary,
Advocate, for respondent No. 3.
_________________________________________________________
Sandeep Sharma, J (Oral)
The present petition is directed against the order dated 16.12.2014, passed by learned Financial Commissioner (Appeals) H.P. (Annexure P-1) and orders dated 24.9.2010 and 28.3.2014 passed by the learned Divisional Commissioner, Mandi, H.P. (Annexure P-4), whereby order dated 18.1.2012, passed by the learned District Collector, Whether reporters of the Local papers are allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:18:32 :::HCHP -2-holding petitioner Kanta Devi entitled to become Kardar of Devta Adi Brahma after the death of her husband Ramu @ .
Ram Singh, was assailed by respondent No.3-Uttam Ram.
2. Necessary facts for the proper adjudication of case, as emerge from the pleadings of the parties are that as per Shajra Nasab, one Shri Manglu became Kardar of Devta of Adi Brahma, Phati Shilihar, Kothi Khokhan, Tehsil and District Kullu Himachal Pradesh. He had two sons namely Janglu rt and Ramu alias Ram Singh. Janglu who was the eldest son of Manglu died in the year, 1948, during the life time of his father Manglu, who died in 1973. Since at the time of death of Manglu, respondent No. 3 Uttam Ram, who, the son of elder son of deceased Manglu was minor, second son Ramu @ Ram Singh of Manglu was appointed as Kardar in place of Manglu and he continued to perform duties as Kardar till 2009. Since respondent No. 3 Uttam Ram was minor at that time, he never objected to the selection of Ramu (husband of the present petitioner) as Kardar of Devta Adi Brahma.
However, record further reveals that appointment of Ramu was set aside vide order dated 11.10.1974 passed by the ::: Downloaded on - 15/04/2017 20:18:32 :::HCHP -3- Deputy Commissioner on the application of one Shri Ludar Singh, however, aforesaid order was challenged by Ramu by .
way of Civil Suit No. 41-1 of 75 in the Court of learned Sub Judge, Ist class, Kullu, H.P. The Court of learned Sub-Judge vide judgment dated 17.4.1978 decreed the suit of the Ramu (husband of the present petitioner) for declaration to the of effect that order of Collector Kullu dated 11.10.1974 appointing Ludar Chand as Kardar of Devta Adi Brahma is rt illegal and void and Ramu is not bound by the same and the defendants (Ludar Chand and State of H.P.) were restrained not to interfere with the working of the plaintiff as Kardar till the fresh appointment of Kardar and the Collector was directed to decide the matter de novo for the appointment of Kardar in which the plaintiff ( Ramu) among the other candidates were also to be given due and reasonable opportunity. It is also on record that aforesaid judgment passed by learned Sub-Judge Kullu passed through judicial scrutiny on two occasions, (1) when first appeal was preferred before the learned District Judge, Kullu and (2) thereafter, before the High Court of Himachal Pradesh by ::: Downloaded on - 15/04/2017 20:18:32 :::HCHP -4- way of regular second appeal. This Court vide judgment dated 11.1.1991 (Annexure P-2) upheld the order passed by .
learned Sub-Judge and passed following orders:-
" The courts below have found that the plaintiff had not incurred any disqualification envisaged in the aforesaid entry of the Wajib-u-Arz. They have also found that consequent upon the order of the of collector dated 11.10.1974, the defendant never started functioning as a Kardar. On the findings recorded by the two courts below, it cannot be said rt that the decree passed by them suffers from any error of the nature which may call for an interference with the decree under Section 41 of the Punjab Courts Act. A reading of the entry extracted above makes it clear beyond doubt that normally functions of a Kardar are to be performed on a hereditary basis and that the person, who claims the right to perform the functions as a Kardar on that basis can be removed for a default of the nature mentioned in the entry. Further, if a removal of that nature becomes necessary, the successor Kardar is to be appointed by majority of votes of the followers of the devta. The appeal lacks merit and is dismissed but the parties are left to bear their own costs."::: Downloaded on - 15/04/2017 20:18:32 :::HCHP -5-
3. Perusal of the operative part, as reproduced above, suggests that functions of the 'Kardar' are to be .
performed on a hereditary basis.
4. Aforesaid decision rendered by Civil Court has been annexed by respondent No. 3-Uttam Ram in his reply to the writ petition. Later on, as per records, Ramu expired of leaving behind Kanta Devi being present petitioner, three daughters and son Gularo. Subsequently, on 27.2.2009 the, rt post of Kardar fell vacant after the death of Ramu @ Ram Singh, second son of Manglu. On being so, the present parties applied for further appointment of Kardar before the learned Sub Divisional collector Kullu on 20.7.2009. The learned Collector vide order 7.9.2009 on the basis of reports regarding credentials of the applicant appointed respondent No.3-Uttam Ram as Kardar of Devta. However, the petitioner challenged the same by way of appeal under Section 14 of HP Land Revenue Act, 1954 specifically challenging order dated 7.9.2009 rendered by the Collector.
The learned Divisional Commissioner Mandi vide order dated 24.9.2010 remanded the matter back to the learned District ::: Downloaded on - 15/04/2017 20:18:32 :::HCHP -6- Collector with a direction to decide the same afresh after examining the by-laws meant for appointment of Kardar.
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5. The learned Collector in terms of directions as aforesaid, decided the matter afresh vide order dated 18.1.2012, whereby petitioner was found entitled for the appointment of Kardar. Respondent No. 3, Uttam Ram, by of way of appeal under Section 14 of HP Land Revenue Act, assailed the order of the learned District Collector dated rt 18.1.2012 before the learned Divisional Commissioner, on the ground that he was the only competent person to be appointed as Kardar of the Devta as all the worshipers/haryan have full faith upon him and earlier he was appointed as Kardar by the learned Deputy Commissioner vide dated 7.9.2009. He further alleged that the deceased Kardar had misappropriated income of Devta and against whom, proceedings before SDM Kullu were initiated. He further stated that present petitioner is an old, illiterate and rustic villager and is not able to perform the duties of Devta neither in the temple nor in the area when the Devta goes outside the temple. He specifically stated before the learned ::: Downloaded on - 15/04/2017 20:18:32 :::HCHP -7- Divisional Commissioner that previously his grandfather Manglu was duly appointed as Kardar of the Devta. Janglu .
being an elder son of Manglu, was to be appointed as a Kardar after his death but since his father Janglu predeceased Ramu and at that time, he was minor, Ramu was appointed as acting Kardar to hold the post till of respondent No.3 attains majority. Respondent No. 3-Uttam Ram pleaded that he never objected the appointment of rt Ramu as Kardar since his relations were cordial. But after the death of Ramu, he was to be appointed as Kardar being a son of Janglu (elder son of Manglu), as he had better right to be appointed as Kardar than the present petitioner who is weak and old lady, unable to perform her duty regularly and sincerely. It was also argued that it is settled law that the appointment of Kardar will go on hereditary basis.
6. Mr. Naveen K. Bhardwaj, learned counsel representing the petitioner prayed that post of Kardar of Devta is to be filled up as per inheritance and she being the (Legal heir) widow of deceased Kardar-Ram is entitled to be appointed as Kardar after his death. In this regard, attention ::: Downloaded on - 15/04/2017 20:18:32 :::HCHP -8- of the learned Divisional Commissioner was invited to the judgment passed by this Court in Khekh Ram v. Yub Raj, 1999 .
(2) SLJ 1081, whereby it is held as under:-
"It is true that the provisions as contained in the Himachal Pradesh Hindu Public Religious and Charitable Endowments Act, 1984 are hardly relevant for the purposes of deciding the present of controversy involved in the suit as this case is to be governed under the terms as contained in the 'wajab-ul-Arz', yet for the purposes of clarification or rt drawing aid, the provisions can certainly be taken notice of. The Act prescribes two types of offices, one "hereditary trustee" and the other "non- hereditary trustee". Whenever a permanent vacancy occurs in the office of a hereditary trustee, it is the person next in the line of succession who is entitled to succeed to that office and provision in this respect has been made in Section 21 of the said Act. When this definition is read with the provisions contained in the 'Wajab-ul-Arz', it can safely be held that the State and its functionaries have no role to play even remotely. The continuation of defendant No. 2 as 'kardar', at best, can be accepted as "Sarbarah' during the minority of the plaintiff. By no stretch of imagination, he can claim any title to that office."::: Downloaded on - 15/04/2017 20:18:32 :::HCHP -9-
7. The learned Divisional Commissioner, Mandi while concluding/allowing the appeal held respondent No.3 .
herein entitled to become Kardar on hereditary basis as per provisions of Wajab-ul-arz., and in consonance with the clear interpretation of such a situation arrived at by the Hon'ble High Court of HP.
of
8. However, being not satisfied with the order of Divisional Commissioner dated 28.3.2014, petitioner preferred a Revenue rt Revision No. 73/2014 before Financial commissioner (appeals) HP at Shimla, whereby he while rejecting the appeal of the petitioner, observed as under:-
" I am in agreement with the reasoning and decision of the ld. Divisional Commissioner, Mandi, who has correctly based his findings on the wazib-ul-
Arz and shazra nasab, and rightly concluded that respondent has a hereditary claim on the appointment of kardar, as his uncle was only a 'sarbrah kardar' (acting), in view of respondents minority and also the fact that respondents; father predeceased Sh. Manglu, and respondents father being the eldest son of Manglu, enjoyed a hereditary right, which right was not extinguished."::: Downloaded on - 15/04/2017 20:18:32 :::HCHP
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9. In the aforesaid background, present petition has been filed for quashing of orders passed by the learned .
Financial Commissioner as well as Divisional Commissioner, Mandi, whereby it has been held that respondent No. 3 can be appointed as a Kardar in place of Ramu who was only 'Sarwarah Kardar' during the period when respondent No. of 3 was minor. Respondent No. 3 Uttam Ram filed detailed reply to the petition and submitted that as per provisions of rt Wazib-Ul-Arz, Devta is the ultimate owner of the properties and the same is to be managed and maintained by two types of persons namely Kardar, Pujara, Purohit, Nawazan which further provides/clarifies that post of Kardar is hereditary and Kardar person is responsible for managing and maintaining the day today affairs of the Devta. At this stage, it would be apt to refer to the judgment rendered by this Court in Khekh Ram v. Yub Raj, 1999 (2) SLJ 1081 which leaves no scope that for the appointment of Kardar, one needs to refer to Wajib-Ul-Arj and state and its functionaries have no role to play with the appointment of Kardar. In the case referred herein above, this Court has come to the ::: Downloaded on - 15/04/2017 20:18:32 :::HCHP
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conclusion that as far as appointment of Kardar is concerned, the provisions as contained in HP Public .
Religious and Charitable Endowment Act, 1984, are hardly relevant and case is to be governed under the terms and conditions of Wazib-ul-arj. It leaves no doubt for interpretation other than this that Kardar, if any, is to be of appointed on hereditary basis. In the present case, if the facts and circumstances are perused, it is undisputed that rt Manglu was the Kardar having two sons Janglu and Ramu.
Janglu who was eldest son of Manglu had one son (respondent No. 3-Uttam Ram). Admittedly, as per record, Janglu died in the year, 1948 during the life time of Manglu and Manglu died in 1972. Admittedly, at that time since respondent No. 3 was minor, another son of Manglu Ramu was appointed as Sarwara Kardar (Acting Kardar). Record also reveals that Deputy Commissioner on the application of one Ludar Chand details whereof, has already been given above, appointed Ludar Chand as Kardar of Devta, which appointment was subsequently challenged by the Ramu and Ludar was removed from the Kardar post. Even ::: Downloaded on - 15/04/2017 20:18:32 :::HCHP
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perusal of the judgment passed by learned Sub-Judge (Annexure-R3/B) suggests that it was the case set up by .
Ramu (petitioner's husband) that after death of Manglu, he has assumed the charge of the Kardar in the capacity of the de-facto Kardar, meaning thereby he was aware of the factum that his appointment as a Kardar after the death of of his father Manglu is going to be only of acting Kardar (Sarwara Kardar) because as per Wajib-Ul-Arz, Kardar was rt to be appointed on hereditary basis. As has been discussed above, post of Kardar is hereditary and as such respondent No. 3 being son of Janglu was to be appointed as Kardar after his attaining majority. Perusal of the judgment i.e. Annexure R-3/B also suggests that while decreeing the suite of the husband of the petitioner-Ramu whereby appointment of Ludar as Kardar was set-aside, the learned Collector was directed to initiate fresh proceedings to appoint Kardar but it appears that no proceedings in terms of the judgment of learned sub Judge, which was further affirmed by the Hon'ble High Court, were undertaken by the learned Collector and petitioner being ::: Downloaded on - 15/04/2017 20:18:32 :::HCHP
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wife of Ramu continued to work as Kardar after obtaining order of the ld. Deputy Commissioner, which was .
subsequently set-aside by the Court of Divisional Commissioner. Perusal of the record as well as reply filed by respondent No. 3 nowhere suggests that at any point of time, trial Court as well as the Hon'ble High Court held of Ramu eligible to be declared as Kardar, rather, in Civil Suit, order dated 11.10.1974 passed by learned Collector rt appointing Ludar Chand was set-aside with further direction to initiate fresh proceedings for the appointment of Kardar.
As has been held above, by the Hon'ble High Court that State and its functionaries have no role to play in the appointment of Kardar as given in Khekh Ram v. Yub Raj, 1999 (2) SLJ 1081. It is only Wajib-Ul-Arj which would be referred to solve the dispute of appointment of Kardar.
Perusal of Annexure-R-3/A Wajib-Ul-Arj in the Hindi Translation is also available on record which clearly provides that post of Kardar is hereditary and Kardar is to be appointed from the family of Kardar only. In the present case, admittedly, Manglu was the Kardar and after his ::: Downloaded on - 15/04/2017 20:18:32 :::HCHP
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death Janglu was competent to become Kardar but he died before the death of Manglu. However, fact remained .
that at the time of death of Janglu, respondent No. 3, Uttam Ram was minor, another son of Manglu namely Ramu was appointed as an acting Kardar to look after the affairs of Devta till the time respondent No. 3 attains of majority. As per Wazib-Ul-Arj, only respondent No. 3 being eldest Son of Janglu is required to be appointed as a rt Kardar, however, petitioner-wife of Ramu was appointed as Kardar on her filing application before the learned Collector completely ignoring the provisions of Wazib-Ul-Arj, which is the only valid document to be referred by the learned Collector at the time of appointment of Kardar but aforesaid action appointing petitioner as a Kardar of the Devta was set-aside by the ld. Divisional commissioner, whereby he specifically mentioned that the Learned Collector has not examined the provisions of Wazib-Ul-Arj.
He specifically stated that as per conditions mentioned in Para-9 (D) of Wazib-Ul-Arj, post of Kardar is of Marusiat in ::: Downloaded on - 15/04/2017 20:18:32 :::HCHP
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nature and as such post is required to be filed by the person next in the line of succession.
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10. The learned Collector again re-examined the order in terms of order dated 24.9.2010 and vide order 8.1.2012 held that respondent No. 3 being the LR of Janglu was entitled to become Kardar in view of the provisions of contained in Wajib-Ul-Arj. He also drew strength from the judgment passed in Khekh Ram v. Yub Raj, 1999 (2) SLJ rt 1081, wherein it was held that if a minor is entitled to become as Kardar as per hereditary, then officiating Kardar during his minority can at best be accepted as "Sarwara Kardar".
11. Above referred judgment leaves no doubt that in case, if a minor is entitled to become a Kardar as per hereditary then officiating Kardar during his minority can at best be accepted as Sarwara Kardar. It also emerges from the aforesaid judgment passed by this Court that for the purpose of deciding the controversy with regard to appointment of Kardar only relevant provision would be Waji-Ul-Arj however, for the purpose of clarification, ::: Downloaded on - 15/04/2017 20:18:32 :::HCHP
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provisions of Hindu Public Religious and Charitable Endowment Act, 1984 can be taken into consideration.
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Even the aforesaid Act provides that for two types of offices, one hereditary trustee and non hereditary trustee when a permanent vacancy occurs in the office of a hereditary trustee, it is the person next in line of succession of who is entitled to succeed to that office.
12. Shri Naveen K. Bhardwaj, also invited attention rt of his Court to the judgment passed by the High Court of HP in CWP No. 4824 of 2009 dated 24.12.2015 titled Mandir Committee (Adhoc) Mata Bhuvneshwari v. Chain Sukh and Ors., wherein, there was also dispute with regard to the management and affairs of Mata Bhuvneshwari Jagannathi Temple Bekhali, which was admittedly governed and regulated in terms of Wajib-ul-arz. The Hon'ble High Court while passing aforesaid judgment has reproduced herein below the provisions of wajib-ul-arz applicable in that case:-
"It is not in dispute that the Management and affairs of Mata Bhuvneshwari Jagannathi Temple Bekhali, ::: Downloaded on - 15/04/2017 20:18:32 :::HCHP
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are governed and regulated in terms of Wajib -ul - arz (Annexure P-3) which reads as under: -
"Copy of Bajibularj of Kothi Sari, Tehsil Kullu, .
District Kangra, Masmula Missal Hakimat 1948 -49:
1. Mujarian Devta: Malkan deity has been declared owner of the land and itself act as Mujanima. Mujarian of deity are of two types. Firstly Mujarian on self service i.e. Kardar, Pujari of
-Prohit, Musician. They are given some land at concessional rent in lieu of their service to the deity. Kardar is appointed after giving due rt preference to their heredity. Pujari have normally their ancestral right. If they do some misconduct in their work, they can be terminated and other person from their family who is able to work, is appointed as Pujari. If it is not possible then the person is appointed on the concusses of the people to whom the deity belongs. Gur -Chala is not a ancestral post and is appointed by the deity itself or who can work properly. His work is to play deity. In case of misconduct he can be terminated. Musicians are normally servants and time to play the music is fixed. If deity goes out of the temple, these people have to follow the deity. Persons who offer flower to the deity daily or on function are also there. In our Kothi Devi Bhekhali is the deity of the whole Kothi. The above mentioned persons ::: Downloaded on - 15/04/2017 20:18:32 :::HCHP
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i.e. Kardar, Pujari, Gur -Chela can be terminated on above stated misconduct and public has a right to do so. From their side an .
application is moved. New persons is to be appointed on consensus basis and it is to be on the heredity basis if he is eligible. The Kardar is appointed by the state. These servants are to be given land in lieu of their of services, which is they can mortgage and they cannot sell. Second type of Mujarian are those who gives Lagan in cash or as Gala to rt the deity in the temple these Mujarian are for few or many years. Till they pay Lagan, they cannot be evicted from the land according to custom their Mujarian is on heredity basis. And the land can be mortgage for many years as per custom. As per general custom the Mujarian loose to work on voluntary basis.
When the new house of repair of old house is to be made, it is their duty they are given food in Dhar. All the persons who works, the food is provided. When deity is to brought outside the temple these people use to follow in and food is provided for them."
[Emphasis supplied]
13. Perusal of the judgment referred above also suggests that Kardar is required to be appointed on ::: Downloaded on - 15/04/2017 20:18:32 :::HCHP
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hereditary basis. However, it appears that there was some dispute with regard to conduct of sitting Kardar, thereby .
directions were issued to take steps for appointing a new Kardar in accordance with law. However, it was made clear that appointment shall be made strictly in terms of wajib-ul-arz of area. Hence, aforesaid judgment is of no of help to the petitioner, rather, it supports the contention of the respondent that Kardar is required to be appointed as rt per wajib-ul-arz and he being the son of late Janglu was required to be appointed as Kardar after the death of Ramu alias Ram Singh, who was only Sarwara Kardar during his minority.
14. In view of the detailed discussion made hereinabove and after perusing the records, I do not see any illegality, infirmity or perversity in the order passed by the learned Financial Commissioner as well as Divisional Commissioner whereby they unequivocally held that appointment of Kardar is to be made on the basis of wajib-
ul-arj. This Court is in total agreement with the findings of the courts below with regard to the hereditary claim of ::: Downloaded on - 15/04/2017 20:18:32 :::HCHP
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appointment of respondent No. 3 as Kardar as his Uncle Ramu was only 'Sarwara Kardar'. Hence the present .
petition is dismissed, so also pending application(s), if any.
May 09, 2016 (Sandeep Sharma),
manjit Judge.
of
rt
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