Himachal Pradesh High Court
Maheshwar Singh And Another vs State Of Himachal Pradesh And Others on 31 August, 2017
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
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CWP No. 1978 of 2016 .
Judgment reserved on: 7.7.2017 Date of Decision : 31.08. 2017.
Maheshwar Singh and another . ...Petitioners Versus State of Himachal Pradesh and others ....Respondents.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr.Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting ? Yes For the Petitioners : Mr. Bhupender Gupta, Senior Advocate, with Mr. Neeraj Gupta and Mr. Janesh Gupta, Advocates.
Mr. Shrawan Dogra, Advocate General, with Mr. V.S. Chauhan, Mr. Mr. Anup Rattan, Addl. Advocate Generals and Mr. J.S. Guleria, Asstt.
Advocate General, for respondents No. 1 & 2.
Mr. Dilip Sharma, Senior Advocate, with Mr. Om Pal and Mr. Deven Khanna, Advocates, for respondent No. 3.
Mr. Satyen Vaidya, Senior Advocate, with Mr. Vivek Sharma, Advocate, for legal representatives 4(a) and 4(b).
________________________________________________________ Tarlok Singh Chauhan, Judge In the instant writ petition, the petitioners have assailed notification issued by the State Government under Section 29 of the Himachal Pradesh Hindu Public Religious Institutions and Charitable Endowments Act, 1984 (hereinafter referred to as the 'Act') whereby the ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes ::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 2 Raghunathji temple has been included in Schedule I of the Act.
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2. The petitioner No.1 claims himself to be the owner in possession of land comprised in Khasra No. 994 entered at Khewat No. 1626 min, Khatauni No. 2106 min situated at Phati Dhalpur, Mauja Maharaja, Pargana Lag Maharaja, Tehsil and District Kullu and in support of such contention placed reliance upon the jamabandi for the year 2006-2007 wherein the suit land is recorded as 'Abadi Patti'. It is averred that :-
(i) r The palaces of the petitioners as well as temple of Shri Raghunathji is also situate over the aforesaid land.
The petitioners are residing in the palace which is commonly known as 'Rupi Palace Sultanpur', Phati Dhalpur, Tehsil and District Kullu, H.P. The temple of Shri Raghunathji was built and established by late Raja Jagat Singh, who during the years 1637 to 1672 AD was reigning the Kingdom at Kullu and the reasons for constructing and establishing the temple and installing the idol of Shri Raghunathji (Rama) along with idol of Sita Mata, Hanumanji, Narsinghji, Saligramji is contained in the history of Punjab Hill States and the relevant extract thereof has been annexed as Annexure P-2 with the petition. The temple is very ancient one and from the very beginning i.e. at the time of construction of the temple and installing of the idols of the aforesaid Gods, the temple is being maintained by the Raja and his successors. As per the traditions maintained by the Rajas of Kullu, the eldest son ::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 3 of the Raja is designated as 'Chharibardar' (Vice Regent) .
of Lord Raghunathji without any interference or interruption.
(ii) Kullu was earlier part of Kangra District which formed part of Punjab and during the year 1865 to 1872 was under
settlement. Mr. J.B. Lyall made a report of the settlement wherein he traced the history of establishing the temple and installing of idols which according to the petitioners clearly establishes that it was the Raja, who had constructed the private temple for his own use to get rid of the curse which was pronounced upon him by one Brahmin named Durga Dutt, resident of Village Tipri (Madoli) while Raja was going towards Manikaran. It is averred that the Raja ran from pillar to post for his cure and get rid of the sin of 'Brahm Hatya' and ultimately fell on the feet of Mahatama Krishan Dass Paihari, who was residing in Village Jhiri near Naggar. Mahatama directed the Raja to fetch the idol from Shri Tretanath Temple Ayodhaya where these idols were made during Tretayug when Lord Rama performed Ashamedha Yagya while Sita Mata was in exile.
Idol of Sita Mata was made on the direction of Guru Vishwamitter for performing the said Yagya. Mahatama also directed Raja to declare Raghunathji as chief deity and Raja of Kullu and the Raja was to become first servant of Lord Raghunathji and designated as 'Chharibardar' and serve the public and in future the eldest son of Raja would ::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 4 also serve as 'Chharibardar' of Lord Raghunathji. A copy of .
the relevant extract of the settlement has been annexed as Annexure P-3 with the petition.
(iii) Similarly, Forest Settlement was undertaken in Kullu during the period 1868 to 1874. As per the then prevailing Forest Act, the Forest Settlement was carried out wherein the rights of Rai, who in fact was the Raja of Kullu have been mentioned. Records also mention the existence of the temple of Raghunathji at Sultanpur and it is clearly mentioned that the temple is in reality a part of the Mahal (Palace) of Rai of Rupi, the then Raja. It is also recorded therein that it was Rai's private chapel. The copy of the relevant extract has been annexed as Annexure P-4 with the petition.
(iv) As per the traditions when Rai Bhagwant Singh of Rupi was managing the temple as well as properties attached thereto, some disgruntled people of Kullu, who wanted to unnecessarily interfere in the affair of the temple of Raghunathji, approached the learned District Judge, Hoshiarpur at Dharamshala by a petition under Section 3 of Local Boards Act XIV of 1920 claiming therein that the entire Hindu population of Kullu pay homage to Lord Raghunathji in Sultanpur Kullu and one of the main grounds raised therein was that the donation from the public was though being taken but there was mismanagement and misappropriation of the funds of the ::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 5 temple. Accordingly, a direction against Damodar Dass .
owner of Laxmi Narain Temple in Sultanpur and Rai Bhagwant Singh owner of the temple for rendition of accounts of income and expenditure for the last three years was sought. The said petition after due contest came to be decided by the learned District Judge Hoshiarpur at Kangra vide his judgment dated 25.2.1942 in which it was held that the temple of Lord Raghunathji as well as temple of idol Laxmi Narainji are private temples and rejected the application with costs. The copy of the judgment has been annexed with the petition as Annexure P-5.
(v) Lord Raghunathji installed in the temple at Sultanpur is considered from time immemorial to be the chief deity of Kullu District and traditional Dussehra festival is celebrated every year. During this festival, the owner of the temple, who is also 'Chharibardar' takes out religious procession of the chief deity alongwith other idols installed in the temple and heads the procession from Sultanpur to Rath Ground in Dhalpur for the purpose of Rath Yatra. About 360 Gods and Goddesses come to pay homage to Lord Raghunathji in Sultanpur Temple. They also participate in the traditional religious ceremonies for seven days including Rath Yatra. The Pooja in the sanctum sanctoram (garbh grih) is carried out by Pujaris appointed by the owner, who manages the temple through Kardars. Except 'Chharibardar' and Pujaris, no person is permitted to enter ::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 6 garbh grih and performed Pooja therein. Even the other .
family members including his wife and children of 'Chharibardar' are not permitted to enter the garbh grih.
The obeisance to the idol is only from the outside.
(vi) The aforesaid temple is being managed by the petitioner No.1 exclusively as a private temple as he is owner thereof and even Kardars have been appointed by him. The same at present is being managed by petitioner No.2, who is the son of petitioner No.1 and has been appointed as a Kardar by him.
(vii) In the Dussehra festival held in the month of October, 1971 the traditional religious procession which was being headed by Raja Mohinder Singh Kullu was intercepted by the police at the behest of the Government and other politicians and then firing took place which resulted in the arrest of Raja Mohinder Singh. Petitioner No.1 and his father Mohinder Singh were arrested by the police and ultimately the Government appointed Hon'ble Mr. Justice D.B. Lal, Judge of this Court as a Single Man Inquiry Commission to enquire into the episode. After making due inquiry and examination of many witnesses and considering the documents produced, it was found that the temple was the private property of Raja and Government had no right to interfere with the same.
(viii) It is thereafter averred that on 19.2.2015 Hon'ble Chief Minister visited Kullu on the occasion of laying of ::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 7 foundation stone in Kullu Town of 24 x 7 drinking water .
supply scheme and during the course of his visit, one Uttam Sharma, President, Block Congress Committee, Kullu submitted a complaint that makes mention of some resolution regarding creating a Trust for Raghunath Mandir, Kullu. The reason mentioned therein was that some thefts had taken place in the temple during 2014 and, therefore, in order to maintain the security of temple, a Trust should be created. It is averred that Uttam Sharma had his own axe to grind against the petitioners as he is the grandson of Sh. Hukam Ram alias Hukami, resident of Village Puid, Kothi Kais, Tehsil and District Kullu. Shri Hukami at one point of time had been appointed as Kardar by the great grandfather of petitioner No.1 and had abandoned the post of Kardar when it was found that he was acting against the interest of the owner of the temple. It is further averred that one Nanak Chand son of Shri Hukam Ram alias Hukami i.e. uncle of Shri Uttam Sharma was in fact one of the applicants in the application filed before the learned District Judge, Hoshiarpur, who had also sought the similar relief, but was denied the same.
(ix) The aforesaid representation so submitted by Sh. Uttam Sharma was actuated with malice and ill-will towards the petitioners keeping in view the old enmity.
Similarly one representation/complaint was submitted by Om Prakash Sharma, who claimed to be the managing ::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 8 trustee of one Dev Sanskriti Charitable Trust, Kullu and .
was on the similar lines as the one submitted by Uttam Sharma (supra). Om Prakash Sharma was an active worker of the Congress Party and making false complaints against petitioner No.1. He had also filed a Public Interest Litigation against petitioner No.1, which was dismissed by this Court. Sh. Om Prakash Sharma misused the signatures of the persons which have been annexed with the representation/complaint. The signatures were not meant for the purpose of the subject mentioned in the representation/complaint.
(x) On similar grounds, third representation was submitted by one Dinesh Sain, the then Member of Zila Parishad, Kullu dated 8.6.2015, which too, contained the false assertions.
(xi) On 26.7.2016, the Deputy Commissioner, Kullu was designated as Commissioner of Temple under the Act wherein the name of Shri Raghunath Temple Trust has been mentioned and the said notice in turn based upon another notification on the same date i.e. 26.7.2016 by the Government of Himachal Pradesh through Secretary (LAC) wherein Shri Raghunath Temple has been entered in Schedule-I of the aforesaid Act. The copies of notice and notification dated 26.7.2016 have been annexed with the petition as Annexures P-8 and P-9, respectively.
::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 93. The said notice and notification have been assailed by the .
petitioners on the ground that the same are without jurisdiction, arbitrary, illegal, unconstitutional, violative of principles of natural justice, politically motivated and actuated with malice.
4. The respondents-State has filed its reply wherein it is averred:-
(i) That the purpose of the Act is to provide for better administration of Hindu Public Institution and Charitable Endowment and for the protection and preservation of properties pertaining to such institutions and endowments.
The underlying object of the applicability of the Act is the interest of people involved in such Public Religious Institutions. The present temple is squarely covered by the definition of Temple and Public Religious Institution and there is enormous element of interest or public involvement, therefore, it cannot be said that the Act is not applicable. There is conscious policy decision taken by the government to add this temple, invoking powers under Section 29 of the Act, in the Schedule attached to the Act to provide for better administration and for the protection and preservation of Shri Raghunath Ji Temple and its properties. There is no question either acquiring or taking over the temple or its properties, therefore, the apprehension of the petitioners is ill-founded and baseless.
(ii) As per the history which is even relied upon by the petitioners themselves that Shri Raghunath Ji is the Chief ::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 10 Deity of entire Kullu District since 1868 and, therefore, can .
by no stretch of imagination be termed as private temple of the petitioners. Shri Raghunath Ji is Chief Deity amongst more than 298 local Devi-Devtas, who in turn, have their own followings of masses within their respective local boundaries. All such Devi-Devtas mostly participate in Kullu Dussehra accompanied by their respective followers ranging between 200 to 600 each in number.
(iii) r Kullu District comprises of four Sub Divisions, five Tehsils consisting of an area of 5503 sq. k.m. and as per 2011 census has population of 4,37,903, out of which Hindu population is 4,15,669. Virtually, all Hindus of Kullu District have deep faith in Shri Raghunath Ji and they are frequent visitors to the Temple without any restriction except some sacrosanct place like 'Garbh Griha' where only particular person in a particular manner can enter.
The offerings made to the deity by general public are accepted without any reservation in temple. There is uninterrupted participation of all the people in all religious activities and festivals in the temple premises or any other place identified for the occasion where the deity Shri Raghunath Ji is present. Public donations are accepted in temple. After declaration of Kullu Dussehra as 'International Fair', there is international following of Shri Raghunath Ji.
::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 11(iv) In view of the international character of celebrating .
Kullu Dussehra, it requires all kind of arrangements in terms of deployment of Police personnel and Home Guards to maintain Law & Order during Dussehra Festival.
Officers/Officials from Police and Administration are deployed for effective execution of Dussehra.
Arrangements in themselves show that there is element of huge interest of general public in the temple of Shri Raghunath Ji.
(v) In addition to the aforesaid, there are many more festivals associated with Shri Raghunath Ji and examples of 28 such celebrations and festivals are as under:
1) Nav Samvatsar:- In Kulvi culture all traditions of the year starts from Nav Samvatsar i.e. Chaiter Shukal Pratipada (March). This is the first festival of Raghunath Ji. In this, Doorva grass to Raghunath Ji is offered by general public.
2) Garud Dwitya:- On the second day of Chaiter
Shukal (March) Garud Dwitya ceremony is
celebrated. This ceremony happens in the evening in which general public participate.
3) Pawan Tritya:- On the third day of Chaiter Shukal (March) Pawan Tritya is celebrated. It is also celebrated in the evening like Garud Dwitya where general public participates.::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 12
4) Vaisakhi:- On the Skranti of Vaisakh (April) big .
pooja is held in the Temple of Shri Raghunath Ji and general public offer Bhog of Satu to Shri Raghunath Ji and Prasad is distributed to the worshipers present in the Temple.
5) Ram Navami:- On the ninth day of Chaiter Shukal (March) Ram Navami is celebrated at twelve noon.
Priest takes fast and then decorate the statue of r Lord Raghunath Ji with new clothes, general public participate in the function held in Temple with great zeal and enthusiasm.
6) Kesar Dol Utsav:- On third day evening of Ram Navami Kesar Dol Utsav is celebrated in which general public participate and celebrate.
7) Akshaya Tritya:- This is celebrated in the evening of Vaisakh Shukal Paksha. This time Jhula is juggled. General public participates.
8) Van Vihar:- On twelfth day of Vaisakh Shukal Paksha (April) Van Vihar ceremony is held at garden of Shri Raghunath Ji Temple at 3:00 PM.
The Deity sits in the Jhula and general public participate in the festival.
9) Nrisingh Chaudas:- On fourteenth day of Vaisakh Shukal Paksha advent of Lord Vishnoo (Nrisingh) as appeared to kill the Hirenyakashyap. This folk drama is held in the Temple of Shri Raghunath Ji.
::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 13Prohit tells the story of Nrisingh to general public .
and celebrations are also there.
10) Bramha Raas:- This ceremony is also celebrated on Nrising Chaudas at 4:00 PM in the garden near Tulsi flower. This time Shri Raghunath Ji sits on his traditional seat. Prohit and priest enchants Veda Mantras at this time and general public participate in the function.
11) r Jal Vihar:- On the Ekadshi of Jestha Shukal Paksha Raghunath takes bath alongwith Sita, Nrisingh, Saligram and Hanuman Ji. After that all these deities are decorated and jiggled in the Jhula on one side of the garden where the holy pond is situated.
The water of pond becomes sacred after bath taken by idol of Shri Raghunath Ji and same is sprinkled on general public gathered in the Temple.
12) Jagannath Dwitya:- On the second day of Ashad Shukal Paksha the idol of Raghunath is placed on the Kamla Aasan. After that holy Aarti is sung by people present in the Temple. The campus of Temple is believed as a Janak Puri on this day where Shri Ramchandra had his in-laws-house.
13) Devshayani Ekadashi:- On the Ekadashi of Aashad Shukal Paksha in the evening the sleeping ceremony of Raghunath Ji is held. Public participates.
::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 1414) Raksha Bandan:- On Sharavan Purnima big Pooja .
is held and Yagyopaveet gold beared to Raghunath Ji and Yagyopaveet is also scotted and Rakhi is also offered to Raghunath Ji by general Public of area and devotees.
15) Janamashatmi:- Janamashatmi is celebrated with enthusiasm in the mid night of Ashatmi of Krishan Paksha of Bhado and general public participate in r the function.
16) Pahalna:- On the ninth day of Krishan Paksha of Bhado Pahalna ceremony is also celebrated in the morning which remains continue till next day evening. Public participates.
17) Sayari Sajja:- On the first day of Asauj the pooja is held of green crop and fruits. Durva grass of silver is offered to Shri Raghunath Ji by general Public on this day.
18) Ang Komodhani Ekadashi:- This ceremony is celebrated on the Ekadashi Shukal Paksha of Bhado month in the evening. The idol of Shri Raghunath put to sleep. Public participates.
19) Vaman Dwadashi:- On the twelfth day of Shukal Paksha of Bhado month after big pooja, the pooja of advent of Vaman is celebrated and general public participate in the function.
::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 1520) Basant Panchami:- On the Panchami of Magh .
Shukal Paksha Basant Utsab is celebrated. On this day the idol of Shri Raghunath Ji is brought to Dhalpur ground with the tunes of Dhol, Nagara, Karnal, Shehnai etc. There the younger brother of Ram Chandra Ji Bharat meets with Hanuman Ji. A person of Bairagi Community portrays as Hanuman.
Raghunath Yatra is held in Dhalpur from Rath r ground to place of Raghunath Ji in the middle of the Dhalpur ground. There pooja is held. Gulal is thrown upon the Raghunath Ji and after that sitting on the big rath. Raghunath returns to the Rath ground after that sitting on the palanquin Raghunath returns to Sultanpur to the Temple. This day the songs of Basant are sung by the Vairagies and general public.
21) Hola Asthak:- On the Ashatmi of Falgun Shukal Paksha Vairagi people come to the Temple of Shri Raghunath Ji in the evening and sings the holy songs.
22) Kamalaasan:- On the tenth day of Falgun Shukal Paksha the seat of kamal is decorated where Raghunath Ji sits. Only Vairagi's can see this seat of Raghunath Ji.
23) Navratra:- From the Shukal Patipada of Ashwin month nine days Navratra ceremony are celebrated.
::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 16On the ninth day Dol of Chaumasa is established.
.
This time Devi Pooja is held.
24. Dussehra:- On the tenth day of Ashwin Shukal Paksha Veer Pooja and Ghor (House) Pooja is held in the Temple in the morning. After that Devi Hadimba comes from Manali and is greeted by Raja family. This time the Devi Devtas also come to greet Raghunath Ji. About 3:00 PM Raghunath Ji comes r to Dhalpur ground where big rath is already decorated and rath Yatra starts from Rath ground to the camp of Raghunath Ji. All Devi Devtas joins with Raghunath Ji. Dussehra is celebrated for seven days in the Dahalpur Ground with great enthusiasm.
Prior to one day of Dussehra, Gold smiths of Kullu District, repair the ornaments, utensils etc. made of gold and silver of Shri Raghunath Ji.
25) Ram Ras:- Ram Ras is held on the Pratipada of Kartik Krishan Paksha in the Temple of Raghunath Ji. Many Devi-Devta congratulate Raghunath Ji on reaching Temple on this day.
26) Dhan Triyodash:- On the thirteenth day of Kartik Shukal Paksha festival of lights are celebrated. Holy lamps are established which are lighted till Diwali in the evening. Public participate.
27) Diwali:- On the Amavasya of Kartik month Diwali is celebrated in the Temple. General public participate.
::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 1728) Ann Koot:- On the Pratipada of Kartik Shukal .
Paksha the pooja of new grain is held. Goverdhan mountain is made of rice and Raghunath Ji is seated on this mountain of rice. Cow worship is also held on this day. Aarti is done and food of new rice prepared and served to the public present. People make offerings of new grain to God.
(vi) There have been two major thefts in Shri Raghunath Ji Temple. The first being in January, 2014 when valuables amounting to `23,81,000/- were taken away and FIR No. 28, dated 22.1.2014 was registered at Police Station, Kullu. However, till date the culprits have not been apprehended. The second theft took place in the intervening night of 8th and 9th December, 2014, when Idols of Shri Raghunath Ji alongwith other Idols and valuables were stolen and FIR No. 378, dated 9.12.2014 was registered at Police Station, Kullu.
(vii) After the repeated thefts in the temple, there is resentment among the people of Kullu. As a mark of disappointment even the commercial establishments or private shops remained closed in Kullu. There was huge pressure on the government for tracing the Idols and valuable. The government even announced an award of `10,00,000/- (Rupees ten lacs) for the person giving clue.
Many police teams were constituted. Finally, the culprits were apprehended. The theft was result of poor security ::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 18 arrangement of Shri Raghunath Ji Temple and poor .
condition of building where Idols and valuable were kept as accused made entrance of the temple after climbing on the slate-roofed Temple with the help of the rope. The accused had taken valuable worth `32,00,000/- (Rupees thirty two lacs) approximately besides Idol of Shri Raghunath Ji and other deities, the value of which cannot be estimated in terms of money.
(viii) After the theft several statements in local press were made by the people wherein they urged the State Government to take over the management of Temple and constitute a Trust to look-after the same.
(ix) In addition, the government also received three representations dated 25.5.2015 from Constituency Congress Committee, 23 Kullu (Sardar), on dated 13.5.2015 from Sanskriti Charitable Trust, Kullu signed by as many as 208 persons of Anni Sub Division and on 8.6.2015 one Dinesh Sen, a public representative.
(x) There is no revenue record to show that the petitioners are owners of the land over which Shri Raghunath Ji Temple is existing. In fact, the temple is situated at a distance of approximately 100 meters from the Rupi Palace, which is also located on 'abadi deh' and is in possession of the petitioners. Total 'abadi deh' is about 20 bighas and Temple is on one bigha. Alongwith Temple of Shri Raghunath Ji, many other persons ::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 19 including the petitioners are in possession of 'abadi deh' .
land. There are about 30-40 families residing there.
Therefore, the petitioners by no stretch of imagination can claim exclusive ownership of the land.
(xi) The Missal Hakiyat for the year 1868 shows that in fact, the predecessors of the petitioners declared themselves as 'Charibardar' which meant the first servant of God. The properties of the Deity were managed through the caretaker known as 'Kardar'. Shri Raghunath Ji is the owner of properties of Temple as well as other landed property. There is no revenue entry specially showing anybody as owner of the land over which the temple is existing except that such land is shown as 'abadi deh'.
(xii) The petitioners are setting up title adverse to title of Deity, who is recognized in law as perpetual minor. Shri Raghunath Ji possesses not only land over which temple is situated within 'abadi deh' at Sultanpur, but also owns landed properties in other part of Kullu District as have been described in paragraphs 9(A) to 9(G) of the reply.
(xiii) As regards the judgment, Annexure P-5, it is averred that the same is not binding on the respondents and general public of District Kullu inasmuch the matter was a judgment in personam which binds only the parties to the litigation.
(xiv) In the Missal Hakiar 1868-69 of Phati Kharahal, the family of Raja Jagat Singh is mentioned at Sr. No. 59 as ::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 20 "KHANDAN" and it is described therein that the then .
owner divided his entire property of Phati into three portions; one portion was donated to Shri Raghunath Ji and he declared him as the servant of God Raghunathji called as 'Chharibardar', which meant as First Servant of Raghunath Ji. The First Kardar was Isharu s/o Aittu as is evident in Missal Hakiat where entry qua "Bahetmam" has occurred. The office of Kardar is hereditary. Till 22.11.1995, Shri Devi Ram was the Kardar who resigned from the office. Thereafter, Deputy Commissioner, kangra (as Kullu at that time was part of District Kangra) on 30.11.1995 vide mutation No. 993 appointed Shri Durga Singh s/o Shri Megh Singh as Kardar. After the death of Shri Durga Singh on 5.9.1989, his son Shri Surender Singh should have become the hereditary Kardar by operation of law, but revenue records do not show entry to this effect. Shri Surender Singh also expired in the year 1999 whereas again his son respondent No. 3 should have become Kardar by operation of law and there was no occasion for entertaining any application for the appointment of Kardar in the year 1999 when petitioner No. 2 was appointed as Kardar on the recommendation of petitioner No.1 by the Tehsildar. Issue in this regard about review of mutation is still sub judice before the Deputy Commissioner.
::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 21(xv) On 5.10.1999, petitioner No.2 moved an application .
requesting respondent No. 2 to declare him as Kardar of Shri Raghunath Ji of area existing in Phati Kiyar, which was marked to the Tehsildar for enquiry. He, in turn, submitted his report on 8.10.1999 to respondent No. 2 vide mutation No. 4063 attested on 15.10.1999. Petitioner No. 2 was ordered to be appointed as Kardar only of Phati Diyar. There is no order of respondent No. 2 appointing the petitioner No. 2 as Kardar of Shri Raghunath Ji Kullu.
(xvi) The petitioners are setting up title adverse to minor deity by claiming themselves to be the owner in possession of the temple whereas it is Shri Raghunath Ji, who is in actual possession of properties of Temple and there is no question of ownership in 'abadi deh'.
(xvii) Nazarana is being paid to all the deities including Shri Raghunath Ji, who participate in Dussehra festival for daily expenses. In addition to that security arrangements, electricity and essential commodities are also being provided to all the deities by the administration including Shri Raghunath Ji since 1968.
(xviii) The experience of the government after inclusion of different temples where interest of public was involved, in Schedule-I of the Act has resulted in better administration of such temples and the income of such temples have gone up tremendously. A large number of persons have benefitted in view of employment provided to them in ::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 22 these temples. There have been provisions for better .
facilities for pilgrims, security of such temples, construction of shrine, beautification of temples, proper paths, security of devotees, proper lightings etc.
5. Respondent No.3, the first cousin of petitioner No.1, had moved an application seeking his impleadment as a party-respondent and the same was allowed. Thereafter, respondent No.3 filed his reply, wherein he has specifically stated as under:
(i) r The petitioner No.1 is only one of the co-sharers of the property in the Rupi palace alongwith Raghunathji Temple. Raghunathji Temple is not the property of petitioner No.1 and is being put to common use of the members of the royal family. The property is jointly owned and possessed by the co-sharers and the petitioner has only 1/16 share in the said property.
(ii) The temple of Raghunathji is separate and not a part of Rupi palace. The public at large visit the said temple as a matter of right as Lord Raghunathji is chief deity of whole Kullu valley.
(iii) The term "Chhari Bardar" does not appear to have been used in old records. The meaning of "Chhari" is stick, "Bardar" is one who lifts the same and, therefore, "Chhari Bardar" would mean, who lifts the stick and cannot be equated with the owner of the property. Hence, the claim of petitioner No.1 that the temple of Lord Raghunath is his private property is not correct. With the passage of time, ::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 23 Lord Raghunath has been accepted by the general public .
as chief deity and devtas and general public pay obeisance to Lord Raghunathji and visit the temple as a matter of right and, therefore, the petitioners cannot claim the temple of Raghunathji as their personal property.
(iv) The grandfather of petitioner, Shri Durga Singh was "Kardar" of Lord Raghunathji, who was appointed by the Collector of District Kangra vide order dated 30.11.1955 when previous "Kardar" Devi Singh resigned on 22.11.1955. On the basis of such orders, mutation No.963 was attested and sanctioned in the name of Shri Durga Singh, who continued to discharge his duties as "Kardar" till his death on 05.09.1989. After the death of Shri Durga Singh, no "Kardar" was formally appointed and all the members of royal family used to perform the duties.
(v) In Kullu Valley "Kardar" is appointed on hereditary basis by the Collector, hence after the death of Shri Durga Singh, Kanwar Surinder Singh father of respondent inherited "Kardari". During 2011, petitioners started claiming exclusive ownership of Rupi palace and temple property compelling the respondent to obtain information under Right to Information Act. The information so received revealed that petitioner No.2 was appointed as "Kardar" by the Deputy Commissioner, Kullu, vide order dated 08.10.1999. An application was submitted by petitioner No. 2 on 05.10.1999 for changing the entries of "Kasht" with ::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 24 respect to Khasra Nos. 2039 and 2146 in "phati diar kothi .
kot kandi" Tehsil and District, Kullu, measuring 3-0 bighas and 5-6 bighas, respectively, which were entered in the name of Lord Raghunathji through "Kardar" Shri Durga Singh. On 08.10.1999, the statement of petitioner No.2 was recorded by the Tehsildar, Kullu, wherein he claimed to perform the duties of "Kardar" after the death of Shri Durga Singh and petitioner No.1 had certified that petitioner No.2 had been performing the duties of "Kardar" and also made recommendations to Deputy Commissioner to appoint petitioner No.2 as "Kardar" and that petitioner No.1 has no objection in case petitioner No.2 is appointed as "Kardar".
(vi) Thereafter, an order was passed on the same date i.e. 08.10.1999 by the Deputy Commissioner in the office file without passing any separate order. Later vide order dated 11.10.1999, Tehsildar, Kullu directed the change of entries in the revenue records in favour of petitioner No.2.
It is claimed that this entire exercise was done by petitioner No.1 with a view to put the property of Lord Raghunath Ji to personal use by exchanging 5-6 bighas of land comprised in Khasra No.2146 with Narain Singh and others as the land of Narain Singh was adjoining to the stone crusher of one of the sons of petitioner No.1 and was causing damage to the land of Narain Singh, who was given this land in exchange so as to facilitate the working of his crusher.
::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 25(vii). After the death of Shri Durga Singh, though a proper .
and fair procedure was required to be followed for appointment of "Kardar" as the replying respondent had also a claim for "Kardar" being the eldest grand son of Shri Durga Singh. However, the petitioners in a hush-hush manner put petitioner No.2 as "Kardar" without putting to notice of replying respondent and other stakeholders of the royal family obviously with a view to facilitate misuse of the property and funds of Lord Raghunathji. The respondent had already staked his claim for appointment of "Kardar" of Lord Raghunathji vide application dated 23.02.2012.
(viii). There are 40 festivals as detailed in Annexure R-3/12, which according to the respondent are celebrated with Lord Raghunathji during the year, out of which 11 are main festivals including "Holika Dehan", "Basant Panchmi"
and "Vijaydashmi" which infact is celebrated for 7 days in Dhalpur ground. Besides, "Van Vihar" and "Jal Vihar" are celebrated in the ground outside Raghunathji temple. Other festivals are celebrated in the temple. Besides this, the newly wedded couples of the valley come to pay obeisance to Lord Raghunathji. General public also visits this temple on occasion of birth of a child in their family and other auspicious occasion. Hence, it is clear that the general public has an interest in the temple and, therefore, it is not a private temple. There are some other temples in Rupi Palace, which are not main parts of the main Raghunathji ::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 26 temple, however, they are accessible to all the members of .
royal family and their invitees only.
(ix). With the passage of time, the nature and character of the temple of Lord Raghunathji has undergone a great change and on account of involvement of the general public and local deities, it cannot be claimed at this distance of time that it is a private temple. The "Kardar" of the temple is appointed by the Deputy Commissioner, which goes to show that it is not a private affair. The grandfather of the replying respondent was appointed as "Kardar" by the Deputy Commissioner, Kangra, in the year 1955 and continued as such till his death in the year 1989.
(x). Similarly, on the strength of being "Chhari Bardar", petitioner No.1 enters "Garbh Grih" of the temple and that does not lead to the conclusion that he is the owner of the temple. There are many public temples where entries are restricted only to "Pujaris" and public pay obeisance from a particular distance and are not allowed to enter the defined area. Offerings are made by the Devtas of the Kullu Valley from time to time, who in turn, get the funds and gold/silver from general public. For re-construction of temple, for performing Yajnas/Kathas and for organizing other religious activities, funds/gold/silver etc. have been offered to Lord Raghunathji, from time to time, by the general public and also by Devtas of Kullu Valley. Therefore, the petitioners cannot claim to be the owners of such funds, ::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 27 which infact have been offered to Lord Raghunathji by the .
general public and Devtas of Kullu Valley. In addition thereto, permanent "Dan Patras" are placed in the temple and during Dussehra, "Dan Patras" are installed in Dhalpur maidan (ground) on behalf of Lord Raghunathji and huge funds are collected on account of offerings made by the general public and Devtas of the valley and such funds are required to be utilized in a transparent and fair manner for the management of the affairs of Lord Raghunathji and therefore, the temple cannot be put to private use by anybody.
6. The brother of the petitioner i.e. respondent No.4 moved an application for impleading him as a party, which was allowed and he was impleaded as respondent No.4. However, during the pendency of the petition, he unfortunately died and his legal representatives were then ordered to be brought on record.
7. Respondent No.4 (since deceased), who was real brother of the petitioner had opposed the petition by filing a reply wherein it is averred that :
(i). He is residing in a specific portion of the palace in his possession and same is being used for his personal residence. There is a common entrance in the shape of main gate (Prawal) to the palace which includes the portion in possession of petitioner No.1, replying respondent, besides other stake holders in the vicinity. It has been specifically denied that the temple of Shri Raghunathji is a ::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 28 part of the palace as alleged. Rather it is stated that Shri .
Raghunathji is the principal deity of the people of Kullu District and the fact of the matter is that the predecessors of the petitioners and replying respondent had dedicated their rule, over the erstwhile State in the name of Shri Raghunathji. People of Kullu have been worshipping Shri Raghunathji since time immemorial. Indisputably, all local deities have their allegiance to Shri Raghunathji and consequently the tradition of Shri Raghunathji being the principal deity of the area has been accepted as an integral part of cultural ethos of the valley. Therefore, the petitioners' claim of ownership of Raghunathji Temple and other properties is not only incorrect, but is also smeared with malafides.
(ii) There is mass participation of the people in religious rituals and ceremonies related with Shri Raghunathji and the same is not confined to the celebration of Dussehra festival alone. The people in general have access to the temple and various festivals and occasions are celebrated with Shri Raghunathji in the temple and elsewhere throughout the year with mass participation of general public. Therefore, the temple of Shri Raghunathji cannot be claimed to be a private temple by the petitioners. The traditional practice of "Charibardar" cannot be a legal impediment in inclusion of Shri Raghunathji temple in the schedule attached to the Act.
::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 29(iii) Shri Raghunathji temple was established with .
religious object for public purpose and hence the applicabilities of the provisions of the Act have to be judged strictly in accordance with the provisions thereof. There is no malafide on the part of the Government of Himachal Pradesh or any individual in taking the decision to include Shri Raghunathji temple within the ambit of the Act. Lastly, it is denied that the temple is a private temple and, therefore, the provisions of the Act have been rightly applied to the same.
8. The petitioners have filed separate rejoinder to the reply of respondents No.1 and 2 wherein the plea as raised in the writ petition have been reiterated. It has been specifically stated that the temple in question is neither a charitable endowment nor is a public religious institution. It is averred that the action of the government is against the principle of natural justice as the petitioners have not been associated at any point of time and the orders impugned herein have been passed behind their back without affording proper opportunity to them to explain their rights and put up their claims. In such circumstances, the entire action of the respondents smacks malafides and the same is nothing but a politically motivated move to injure the interest of petitioner No.1, who belongs to the political party other than the ruling political party.
9. It has once again been stated that even in the Dussehra ceremonies, there is no mass public participation insofar as Lord Raghunathji is concerned, which is a private affair of petitioner No.1 carried through petitioner No.2 being Kardar. In addition thereto, ::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 30 specific allegations have been levelled against the representationist .
Sh. Om Prakash Sharma, who has filed representations for creation of the trust and details of such averments are contained in para 3 of the rejoinder.
10. The petitioners have filed rejoinder to the reply of respondent No.3, wherein in the preliminary submissions, it is averred that respondent No.3 is neither owner nor has any right, title or interest as owner of Abadi Phati, Sultanpur and, therefore, cannot be heard in the matter. It is further averred that respondent No.3 had been in various civil and criminal litigation with the petitioner No.1 and his family members and on account of such inimical attitude has approached this Court by concealing true and material facts while seeking his impleadment. On merits, it has been stated that respondent No.3 or his predecessors never owned any land at Sultanpur, Phati Dhalpur and that is why the names of respondent No.3 or his predecessors do not find mention in the revenue record. They in fact have no right, title or interest of any nature either in abadi Phati or temple or the out houses attached to the temple.
11. The petitioners have filed rejoinder to the reply of respondent No.4, wherein it has been averred that respondent No.4 has different motive to oppose the claim of the petitioner. It is denied that the temple of Shri Raghunathji is not part of Rupi Palace. It is also submitted that there are various local deities in respect of villages and phatis of Kullu District and their followers worship their respective deities. It is only during Dussehra festival that all the Devi-Devtas who are invited to Dussehra festival pay their obeisance to Lord ::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 31 Raghunathji. Even during Dussehra festivals the worshipper and .
villagers who accompany their respective deity or devta perform their respective poojas and other ceremonies. It has been denied that the people in general have access to the temple of Lord Raghunathji as a matter of right and even though, there are various religious festivals that are performed in the temple but participation of general public is not a matter of right in such religious ceremonies or festivals. The birthday of Raja as per tradition is celebrated in the temple with all traditional ceremonies and even the marriage of Raja is performed in the temple and in the marriage of the eldest son of Raja, Lord Narsinghji accompanies the Barat and all the rituals of marriage are performed in his presence. The traditional ceremony of coronation the eldest son of Raja and declaring him to be the successor of Raja as well as Chharibardar (vice regent) are performed traditionally within the temple with all rituals. Even in the daily pooja performed in the temple, the Sankalp is always in the name of petitioner No.1 and whenever any Yagya or Anusthan, repair or construction takes place in the temple, it is the petitioners who are required to compulsorily to stay within the temple throughout even during night in the rooms which are earmarked for such purpose. Even after any demise of any family members or near relations takes place, the petitioner No.1 is not permitted to mourn the demise and has to perform his duties by staying separately from other family members during the festivals or any Utsav of Lord Raghunathji.
Such facts are clearly evident from one instance when the real sister of petitioner No.1 and respondent No.4 namely Rani Kiran Kumari of Mandi expired on very first day of Dussehra festival, petitioner No.1 had ::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 32 to compulsorily stay back and could not mourn the deimise and had .
attended the funeral which took place on the next day, being the Chharibardar.
12. It is vehemently contended by Mr. Bhupender Gupta, Senior Advocate, assisted by Mr. Neeraj Gupta, counsel for the petitioners that the Lord Raghunathji temple being a private temple and the properties appurtenant thereto being private properties in the ownership and possession of petitioner No.1 are not amenable to the provisions of the Act and, therefore, any action purported to be taken thereunder is without jurisdiction, arbitrary, illegal, unconstitutional and violative of the principles of natural justice and malafide and hence is liable to be quashed. It is further argued that the notification issued under Section 29 of the Act is liable to be quashed as the same has been issued in violation of the principles of natural justice as the petitioners have not at all been associated at any stage and even otherwise the entire action is actuated by the political motivation and thus cannot withstand the judicial scrutiny.
13. On the other hand, learned Advocate General would argue that by way of notification impugned herein, there is no acquisition or taking over of the properties of the petitioners and the same has been issued only for the purpose of administration. The legislature never intended the principles of natural justice or recording of reasons before initiating proceedings under the same, more particularly, while issuing notification under Section 29 of the Act when it is established on record that the public has interest in the temple. The private respondents have towed the line of arguments of the learned Advocate General.
::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 33We have heard learned counsel for the parties and have .
gone through the material placed on record carefully.
14. At the outset, certain salient features of the Act need to be noticed. As per sub section 3 of Section (1) of the Act, it applies to all Hindu and Charitable Endowment mentioned in Schedule-1. "Hindu Public Religious Institution", as per Section 2 (f) of the Amended Act, 2007 reads thus:
"(f) "Hindu public religious institution" means a math, temple, r smadh, smadhi, dera and endowment attached thereto or a specified endowment, established with a religious object for a public purpose and includes, -
(i) All property movable or immovable belonging to or given or endowed for worship in, maintenance or improvement of, additions to, a math, temple, smadh, smadhi or dera for the performance of any service of charity connected therewith:
(ii) The idols installed in the math, temple, smadh, smadhi or dera, cloths, ornaments and things, for decoration etc.; and
(iii) Religious institution under the direct control of the State Government; but does not include such private religious math, temple, smadh, smadhi or dera, in which the public are not interested:
Provided that any offering, whether in kind or in cash, made by any pilgrim or by any other person in any Himachal Pradesh Public Religious Institutions shall be deemed to be the property of such religious institution."
15. "Temple" defined in Section 2 (l) means a place, by whatever designation known, used as place of public religious worship, ::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 34 and dedicated to, for the benefit of, or used as of right by, the Hindu .
community or any section thereof as a place of public religious worship.
16. Section 29 confers power upon the State Government to amend Schedule-1 and reads thus:
"29. Power to amend schedule-I.-
(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 r 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."
17. There is no dispute that in the case in hand what is sought to be termed to be a Religious Institution within the meaning of Hindu Public Religious Institution in sub section 3 of Section (1) is a temple and it is the claim of the respondents that the same is a temple within the meaning of Section 2 (l), therefore, the respondents No. 1 and 2 would have the right to administer the same.
18. Whereas, learned counsel for the petitioners would contend that the temple in question cannot be termed as a public religious institution and in proof of dedication, user as of right, as a place of public religious worship by the Hindu Community or of any section thereof, the Raghunathji Temple cannot be said to be a temple within the definition of Section 2 (l) of the Act.
19. According to the petitioners, one of the essential requirements as seen from the definition of "temple" is that it should be a place of public religious worship and the Hindu Community or any ::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 35 Section thereof should have used the premises as a place of Public .
Religious Worship as of right, so as to be called or termed as a public temple. If the essential ingredient, namely, worship by the public as of right is not satisfied, then it becomes a private temple.
20. Therefore, the first and foremost question to be determined is as to whether the Raghunathji Temple is a public temple or a private temple.
21. As early as in 1924, the Hon'ble Privy Council in Pujari Lakshmana Goundan and Anr. v. Subramania Ayyar and Ors., AIR (1924) PC 44, took the view that even in a case where at the initial stage the temple is a private one by reason of the founder holding it out by representing to the Hindu public that the temple was a public temple at which all Hindus have right to worship, then the inference will be that he had dedicated the temple to the public.
22. In Babu Bhagwan Din v. Gir Har Swaroop, AIR 1940 PC, 7 the Hon'ble Privy Counsel while dealing with the grant that was made to one Daryao Gir and his heirs in perpetuity and the evidence showed that the temple and the properties attached thereto had throughout been treated by the members of the family as their private property appropriating to themselves the rents and profits thereof, held that the fact that the grant was made to an individual and his heirs in perpetuity was not reconcilable with the view that the grantor was in effect making a wakf for a Hindu religious purpose.
While distinguishing the case of Pujari Lakshmana Goundan's the Hon'ble Privy Council observed as follows:
::: Downloaded on - 01/09/2017 23:26:34 :::HCHP 36'In these circumstances, it is not enough in their Lordships 'opinion' to deprive the family of their private property to show .
that Hindus willing to worship have never been turned away or even that the deity has acquired considerable popularity among Hindus of the locality or among persons resorting to the annual mela. Worshippers are naturally welcome at a temple because of the offerings they bring and the repute they give to the idol;
they do not have to be turned away on pain of forfeiture of the temple property as having become property belonging to a public trust.
Facts and circumstances, in order to be accepted as sufficient proof of dedication of a temple as, a public temple, must be considered in their historical setting in such a case as the present; and dedication to the public is not to be readily A inferred when it is known that the temple property was acquired by grant to an individual or family. Such an inference if made from the fact of user by the public is hazardous, since it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away; and as worship generally implies offerings of some kind it is not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity. Thus, in 61 I A 405, the Board expressed itself as being shown to act on the mere fact of the public having been freely admitted to a temple. The value of public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right. Their Lordships do not consider that the case before them is in general outline the same as the case of the Madras temple 29 C W N 112, in which it was held that the founder who had enlarged the house in which the idol had been installed by him, constructed circular roads for processions, built a rest house in the village for worshippers, and so forth, had held out and represented to the Hindu public that it was a public temple.'
23. In Deoki Nandan v. Murlidhar, 1956 SCR 756: (AIR 1957 SC 133), is a leading judgment on the subject by a Bench of four Hon'ble Judges of the Hon'ble Supreme Court. Therein the facts found were that one Sheo Ghulam, a pious childless Hindu, constructed Thakurdwara of Sri Radhakrishnaji in Balasia village of District Sitapur.
He was in management of the temple till his death. He executed a 'Will' bequeathing all his properties to the temple and made provisions for its proper management. The question arose whether the temple was dedicated to the public and whether the temple was a public or private temple. The Hon'ble Supreme Court laid down that the issue whether ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 37 the religious endowment is a public or a private is a mixed question of .
law and facts, the decision of which must be taken on the application of the legal concepts of public and private endowment to the facts found. It was held that the distinction between a private or a public endowment is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. It was further held that an idol is a juristic person capable of holding properties. The properties endowed for the temple vest in it, but the idol has no beneficial interest in the endowment. The true beneficiaries are its worshipers. On facts it was found that the temple was a public temple and it was held that the true test whether a temple is a private or a public temple, depends on whether the public at large or a section thereof has an unrestricted right of worship and it was observed:
'When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of worshippers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any 'specified portion thereof.
The learned Judge distinguished the decision of the Privy Council in Babu Bhagwan Din v. Gir Har Saroop, (supra) on the ground that properties in that case were granted not in favour of an idol or temple but in favour of the founder who was maintaining the temple and to his heirs in perpetuity, and said:
'But, in the present case, the endowment was in favour of the idol itself, and the point for decision is whether it was private or public endowment. And in such circumstances, proof of user by the public without interference would be cogent evidence that the dedication was in favour of the public.' It was also observed while distinguishing the Privy Council decision in Babu Bhagwan Din's case that it was unusual for rulers to make grant to a family idol. In Deoki Nandan's case the Court referred to several factors as an indicia of the temple being a public one viz the fact that the idol is installed not within ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 38 the precincts of residential quarters but in a separate building constructed for that purpose on a vacant site, the installation of .
the idols within the temple precincts, the performance of pooja by an archaka appointed from time to time for the purpose, the construction of the temple by public contribution, user of the temple by the public without interference, etc.'
24. In Ram Saroop Dasji v. S. P. Sahi, Special Officer-in-
Charge of the Hindu Religious Trusts, (1959)Suppl (2) SCR 583:
(AIR 1959 SC 951), another Constitution Bench of the Hon'ble Supreme Court reiterated the distinction between the public and private trust. In the former the beneficial interest is vested in an uncertain and fluctuating body of persons, either the public at large or some considerable portion of it, answering a particular description. In the latter, the beneficiaries are definite and ascertained individuals or who within a time can be definitely ascertained. The facts that the uncertain and fluctuating body of persons is a section of the public following a particular religious faith or is only a sect of persons of a certain religious persuasion would not make any difference on the matter and would not make the trust a private trust. It was held that Sri Thakur Laxmi Narainji was a public trust within the meaning of S.2(e) of the Bihar Hindu Religious Trusts Act, 1950
25. In Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayhak Gosavi, (1960) 1 SCR 773:(AIR 1960 SC 100) a Bench of three Hon'ble Judges of the Hon'ble Supreme Court held that the long user by the public as of right and grant of land and cash by the rulers, taken along with other relevant facts were consistent only with the public nature of the endowment. It was held that Sri Balaji Venkatesh at Nasik and its Sansthan constituted charitable and religious trusts within the meaning of the Charitable and Religious Trusts Act, 1920. In ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 39 that context this Court also considered the question of burden of proof .
and held that it would mean of two things, namely, (1) that a party has to prove an allegation before it is entitled to a judgment in its favour;
and (2) that the one or the other of the two contending parties has to introduce evidence on a contested issue. The question of onus is material only where the party on which it is placed would eventually lose if it failed to discharge the same. Where issues are, however, joined, evidence is led and such evidence can be weighed in order to determine the issues, the question of burden becomes academic.
26. In The Poohari Fakir Sadavarthy of Bondilipuram vs. The Commissioner, Hindu Religious and. Charitable Endowments, AIR 1963 SC 510, a Bench of Hon'ble three Judges of the Hon'ble Supreme Court, laid down the following tests to find out whether a particular temple is a private or a public one:-
'That an institution would be a public temple within the Hindu Religious Endowments Act, 1926, if two conditions are satisfied; firstly, that it was a place of public religious worship and secondly, that it was dedicated to, or was for the benefit of, or was used as of right p by the Hindu Community, or any section thereof, as a place of religious worship.When there be good evidence about the temple being a private one, the mere fact that a number of people worship at the temple, is not sufficient to come to the conclusion that the temple must be a public temple to which those people go as a matter of right as it is not usual for the owner of the temple to disallow visitors to the temple even if it be a private one.'
27. In Tilkayat Shri Govindalalji Maharaj v. State of Rajasthan, (1964) 1 SCR 561: (AIR 1963 SC 1638) the Constitution Bench of the Hon'ble Supreme Court held, on construction of evidence, that Nathdwara temple of Udaipur is a public temple with management of the trustee of the property belonging to the temple.
::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 4028. In Goswami Shri Mahalaxmi Vahuji v. Rannchhoddas .
Kalidas and Ors., [1970] 2 SCR 275 , the Hon'ble Supreme Court, after considering the earlier decisions on this aspect, held as follows:-
'Though most of the present day Hindu public temples have been found as public temples, there are instances of private temples becoming public temples in course of time. Some of the private temples have acquired great deal of religious reputation either because of the eminence of its founder or because of other circumstances. They have attracted large number of devotees. Gradually in course of time they have become public temples. Public temples are generally built or r raised by the public and the deity installed to enable the members of the public or a section thereof to offer worship. In such a case the temple would clearly be a public temple. If a temple is proved to have originated as a public temple, nothing more is necessary to be proved to show that it is a public temple but if a temple is proved to have originated as a private temple or its origin is unknown or lost in antiquity then there must be proof to show that it is being used as a public temple. In such cases the true character of the particular temple is decided on the basis of various circumstances. In those cases the courts have to address themselves to various questions such as:-
(1) Is the temple built in such imposing manner that it may prima facie appear to be a public temple?
(2) Are the members of the public entitled to worship in that temple as of right?
(3) Are the temple expenses met from the contributions made by the public?
(4) Whether the sevas end utsavas conducted in the temple are those usually conducted in public temples?
(5) Have the management as well as the devotees been treating that temple as a public temple? Though the appearance of a temple is a relevant circumstance, it is by no means a decisive one. The architecture of temples differs from place to place. The circumstance that the public or a section thereof have been regularly worshipping in the temple as a matter of course and they can take part in the festivals and ceremonies conducted in that temple apparently as a matter of right is a strong piece of evidence to establish the public character of the temple. If votive offerings are being made by the public in the usual course and if the expenses of the temple are met by public contribution, it is safe to presume that the temple in question is a public temple. In brief the origin ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 41 of the temple, the manner in which its affairs are managed, the nature and extent of gifts received by it, .
rights exercised by the devotees in regard to worship therein, the consciousness of the manager and the consciousness of the devotees themselves as to the public character of the temple are factors that go to establish whether a temple is a public temple or a private temple. In Lakshmana v. Subramania, the Judicial Committee was dealing with a temple which was initially a private temple. The Mahant of this temple opened it on certain days in each week to the Hindu public free to worship in the greater part of the temple, and on payment 'of fees in one part only. The income thus received by the Mahant was utilised by him primarily to meet the expenses of the temple and the balance went to support the Mahant and his family. The Privy Council held that the conduct of the Mahant showed that the had held out and represented to the Hindu public that the temple was a public temple at which all Hindus might worship and the inference was, therefore, that he had dedicated it to the public. In Mundancheri Koman v. Achutan Nair, the Judicial Committee again observed that the decision of the case would depend on the inferences to be derived from the evidence as to the way in which the temple endowments had been dealt with and from the evidence as to the public user of the temples. Their Lordships were satisfied that the documentary evidence in the case conclusively showed that the properties standing in the name of the temples belonged to the temples and that the position of the manager of the temples was that of a trustee. Their Lordships further, added that if it had been shown that F the temples had originally been private temples they would have been slow to hold that the admission of the public in later times possibly owing to altered conditions would affect the private character of the trusts. In Deoki Nandan v. Murlidar, this Court observed that the issue whether a religious endowment is a public or a private one is a mixed question of law and fact, the decision of which must depend on the application of legal concepts of a public and private endowment to the facts found. Therein it was further observed that the distinction between a public and private endowment is that whereas in the former the beneficiaries, which means the worshippers are specific individuals and in the later the general public or class thereof. In that case the plaintiff sought to establish the true scope of the dedication from the user of the temple by the public. In Narayan Bhagwant Rao Gosavi Balajiwale v. Gopal. Vinayak Gosavi and Ors., this Court held that the vastness of the temple, the mode of its construction, the long user of the public as of right, grant of land and cash by the Rulers taken along with other relevant factors in that case were consistent only with the public nature of the temple."
::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 4229. In Bihar State Board of Religious Trust v. Palat Lall .
and Ann, [1971] 2 SCR 650, the Hon'ble Supreme Court, inter alia, observed that the fact that the worshippers from the public were admitted to the temple was not a decisive fact, because worshippers would not be turned away as they brought in offerings, and the popularity of the idol among the public was not indicative of the fact that the dedication of the properties was for public.
30. In Bihar State Board Religious Trust, Patna v. Mahant Sri Biseshwar Das, [1971] 3 SCR 680, the Hon'ble Supreme Court held that the evidence that Sadhus and other persons visiting the temple were given food and shelter was not by itself indicative of the temple being a public temple or its properties being subject to a public trust; that the mere fact of the public having been freely admitted to the temple cannot mean that courts should readily infer there from dedication to the public; that the value of such public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right; that the fact that idols were installed permanently on a pedestal and the temple was constructed on grounds separate from the residential quarters of the mahant could not lead to inference of dedication to the public.
31. In T.D. Gopalan v. The Commissioner of Hindu Religious and Charitable Endowments, Madras, [1973] 1 SCR 584:
(AIR 1972 SC 1716), the facts were that the Mandapam was constructed on their own land. The Garbha Griha in front of the mandapam, stone idols called Dwarabalakas on either side and ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 43 implements necessary for offering puja in the mandapam existed. The .
Commissioner declared it to be a public temple but in the suit the trial Court declared it to be a private temple. On appeal, the High Court reversed the decree of the trial Court and held that the temple was a public temple on the ground that members of the public had been worshipping at the shrine without let or hindrance, and that the temple was being run by contributions and by benefactions obtained from members of the public. The Hon'ble Supreme Court considered the nature of the temple, place of worship attaching importance to the origin of the temple, the management thereof by the members of the family and absence of any endowed property etc., declared it to be private temple and confirmed the decree of the trial Court. While considering those facts, the Hon'ble Supreme Court held that the origin of the temple, the manner in which its affairs were managed, the nature and extent of the gifts received by it, the rights exercised by devotees in regard to worship therein, the consciousness of the Manager or devotees themselves as to the public character of the temple are facts which go to establish whether a temple is public or private. In the absence of Dwajasthamba or Nagara bell or Hundial in the temple were considered to be factors to declare the temple to be a private temple and it was observed as under:
'Moreover, if the origin of the temple had been proved to be private then according to the law laid down by the Privy Council itself in Babu Bhagwan Din's case dedication to the public was not to be readily inferred. Such an inference, if made, from the fact of user by the public was hazardous since it should not, in general, be consonant with Hindu sentiment or practice that worshippers should be turned away; and, as worship generally implied offerings of some kind, it was not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity. It was further emphasised by ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 44 their Lordships that the value of public user as evidence of dedication depends on the circumstances which give strength .
to the inference that the user was as of right. In Goswami Shri Mahalaxmi Vahuji v. Rannchoddas Kalidas and Ors., it was pointed out that the appearance though a relevant circumstance was by no means decisive. The circumstance that the public or a section thereof had been regularly worshipping in the temple as a matter of course and they could take part in the festivals and ceremonies conducted in that temple apparently as a matter of right was a strong piece of evidence to establish its public character. If votive offerings were being made by the public and the expenses were being met by public contribution, it would be A safe to presume that the temple was public. In short the origin of the temple the manner in which its affairs were managed the nature and extent of the gifts received by it, rights exercised by devotees in regard to worship therein, the consciousness of the manager and the consciousness of the devotees themselves as to the public character of the temple were factors that went to establish whether a temple was public or private.'
32. In Dhaneshwarbuwa Guru Purshottambuwa v. Charity Commissioner, (1976) 3 SCR 518: (AIR 1976 SC 871), while reiterating the well-settled distinction between private trust or public trust, the Hon'ble Supreme Court emphasised that the deity installed in the temple was intended by the founder to be continually worshiped by an indeterminate multitude of the Hindu public without any hindrance or restriction in the matter of worship by the public extending over a long period. Receipt of the Royal grant, gifts of the land by members of the public, absence of any evidence in the long history of the Sansthan to warrant that it had any appearance of, or that it was ever treated as, a private property are some of the features to lead to an inescapable conclusion that Shri Vithal Rukhamai Sansthan was to be public trust within the meaning of S. 2(13) of the Act.
33. In Bala Shankar Maha Shanker Bhattjee and others vs. Charity Commissioner, Gujarat State 1995 Supp (1) SCC 48, the Hon'ble Supreme Court after placing reliance on the earlier judgments, ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 45 some of which have been noticed above, laid down the following .
principles to determine a private or public temple:
"19. A place in order to be a temple, must be a place for public religious worship used as such place and must be either dedicated to the community at large or any section thereof as a place of public religious worship. The distinction between a private temple and public temple is now well settled. In the case of former the beneficiaries are specific individuals; in the latter they are indeterminate or fluctuating general public or a class thereof. Burden of proof would mean that a party has to prove an allegation before he is entitled to a judgment in his favour.
The one or the other of the contending parties has to introduce evidence on a contested issue. The question of onus is material only where the party on which it is placed would eventually lose if he failed to discharge the same. Where, however, parties joined the issue, led evidence, such evidence can be weighed in order to determine the issue. The question of burden becomes academic.
20. An idol is a juristic person capable of holding property. The property endowed to it vests in it but the idol has no beneficial interest in the endowment. The beneficiaries are the worshippers. Dedication may be made orally or can be inferred from the conduct or from a given set of facts and circumstances. There need not be a document to evidence dedication to the public. The consciousness of the manager of the temple or the devotees as to the public character of the temple; gift of properties by the public or grant by the ruler or Government; and long use by the public as of right to worship in the temple are relevant facts drawing a presumption strongly in favour of the view that the temple is a public temple. The true character of the temple may be decided by taking into consideration diverse circumstances. Though the management of a temple by the members of the family for a long time, is a factor in favour of the view that the temple is a private temple, it is not conclusive. It requires to be considered in the light of other facts or circumstances. Internal management of the temple is a mode of orderly discipline or the devotees are ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 46 allowed to enter into the temple to worship at particular time or after some duration or after the headman leaves the temple are .
not conclusive. The nature of the temple and its location are also relevant facts. The right of the public to worship in the temple is a matter of inference.
21. Dedication to the public may be proved by evidence or circumstances obtainable in given facts and circumstances. In given set of facts, it is not possible to prove actual dedication which may be inferred on the proved facts that place of public religious worship has been used as of right by the general public or a section thereof as such place without let or hindrance. In a public debuttar or endowment, the dedication is for the use or benefit of the public. But in a private endowment when property is set apart for the worship of the family idol, the public are not interested. The mere fact that the management has been in the hands of the members of the family itself is not a circumstance to conclude that the temple is a private trust. In a given case management by the members of the family may give rise to an inference that the temple is impressed with the character of a private temple and assumes importance in the absence of an express dedication through a document. As stated earlier, consciousness of the manager or the devotees in the user by the public must be as of right. If the general public have always made use of the temple for the public worship and devotion in the same way as they do in other temples, it is a strong circumstance in favour of the conclusiveness of public temple. The origin of the temple, when lost in antiquity, it is difficult to prove dedication to public worship. It must be inferred only from the proved facts and circumstances of a given case. No set of general principles could be laid."
34. The Hon'ble Supreme Court in Smt. Marua Dei vs. Muralidhar Nanda, 1999 AIR (SC) 329, was dealing with the proceedings which were initiated under Section 41 of the Orissa Hindu Religious Endowments Act, 1951 for a declaration that the temple in question is neither a public temple nor a math as defined in the Act and ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 47 that it was a private spiritual institution for the worship by the applicants .
family members only. The Additional Assistant Commissioner of Endowments held that the institution was neither a public temple nor a math but is a private institution of the applicants. The appellate authority dismissed the appeal. In an appeal filed before the High Court, the institution was held to be a public temple. The judgment of the High Court was affirmed by the Hon'ble Supreme Court and the principles as laid in Bala Shankar's case (supra) were reiterated.
35. In r Teki Venkata Ratnam and others vs. Dy.
Commissioner, Endowments and others, (2001) 7 SCC 106, the Hon'ble Supreme Court reiterated that a private temple can also in due course of time become a public temple and it was observed:
"9. The second submission based on the decision of the District Court made in O.P. No. 1 of 1940 declaring the temple as private, as rightly held by the High Court, has no merit or force. It must be remembered that a private temple in course of time depending on various factors and developments may gradually acquire the nature of a public temple. The Division Bench of the High Court in this regard relied on the decision of this Court in Goswami Shri Mahalaximi v. Shah Ranchhoddas (AIR 1970 SC 2025), para 15 of the said judgment reads :-
''Though most of the present day Hindu public temples have been founded as public temples, there are instances of private temples becoming public temples in course of time. Some of the private temples have acquired great deal of religious reputation either because of the eminence of its founder or because of other circumstances. They have attracted large number of devotees. Gradually in course of time they have become public temples. . . . . . . ."
36. In S. Pitchai Ganapathy and others vs. Commissioner, Hindu Religious and Charitable Endowments Department and others, (2001) 8 SCC 460, the Hon'ble Supreme Court held that a ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 48 party seeking declaration that the temple is a private one must rebut .
presumption that temple whose origins are unknown is a public temple.
37. In Kuldip Chand and another vs. Advocate General to Government of H.P. and others, (2003) 5 SCC 46, the Hon'ble Supreme Court has laid down the guidelines to determine whether the endowment is a public or private in nature in the following manner:
"40. Undoubtedly, bequests for construction of a Dharamsala will be for a charitable purpose. It is not necessary that the properties must be dedicated to any particular deity but what is essential is complete dedication for a charitable purpose. Such dedication may be made to an object both religious and of public utility."
38. Similarly, in State of W.B. and others versus Sri Sri Lakshmi Janardan Thakur and others, (2006) 7 SCC 490, the Hon'ble Supreme Court have culled out the following factors to determine whether the trust is private or public:
"15. In order to ascertain whether a trust is a private, following factors are relevant:
(1) If the beneficiaries are ascertained individuals; (2) If the grantor has been made in favour of an individual and not in favour of a deity;
(3) The temple is situated within the campus of the residence of the donor;
(4) If the revenue records or entries suggest the land being in possession of an individual and not in the deity. On the other hand an inference can be drawn that the temple along with the properties attached to it is a public trust:
(1) If the public visit the temple as of right (2) If the endowment is the name of the deity. (3) The beneficiaries are the public.
(4) If the management is made through the agency of the public or the accounts of the temple are being scrutinized by the public."::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 49
39. In Parasamaya Kolerinatha Madam, Tirunelveli vs. P. .
Natesa Achari (dead) through LRs and others (2011) 13 SCC 431, while setting out the two necessary ingredients for a structure or place to be described as a temple under the Act, observed as under:
"12. The distinction between maths and temples, stated in several judicial pronouncement has found statutory recognition in the aforesaid definitions. There are two necessary ingredients for a structure or place to be described as a temple under the Act. First is its use as a place of public religious worship. Second is dedication of the structure or place to, or for the benefit of, or use as of right by, the Hindu community or a section thereof, as a place of public religious worship. The mere fact that members of the public are allowed to worship at a place, will not make it a public temple. The Hindu sentiments and the tenets of Hinduism do not normally exclude worshippers from a place of worship, even when it is private or part of a Math. Therefore, the crucial test is not whether the members of the public are permitted to worship, but whether the worship by the members of the public is as of right by the Hindu community or any section thereof, or whether a place has been dedicated a place of public religious worship. [See :
the decision of the Privy Council in Koman Nair v. Achuthan Nair ILR (1935) 58 Mad 91, the decisions of the Madras High Court in Madras Hindu Religious Endowments Board vs.V.N. Deivanai Ammal (1953) 2 MLJ 688; Bodendraswami Mutt vs. Board of Commissioners for Hindu Religious Endowments (1955) 1 MLJ 60, and The Commissioner, Hindu Religious & Charitable Endowment (Admn.) Department vs. Tirukoilur Adhinam Tirupappuliyur Srimath Gnaniar Madalayam (2003) 1 MLJ 726]."
40. Thereafter earlier judgments rendered in Goswami Shri Mahalaxmi Vahuji vs. Ranchhoddas Kalidas (1969) 2 SCC 853, T.D. Gopalan vs. Commr. of Hindu Religious and Charitable ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 50 Endowments (1972) 2 SCC 329 and Radhakanta Deb. Vs. Commr.
.
of Hindu Religious Endowments (1981) 2 SCC 226 were relied upon and it was observed as under:
"16. Therefore, the fact that there are some idols installed in a Math and members of the public offer worship to such idol will not make it a place of public religious worship, that is, a temple, if the other ingredients of a math exist or if it is established to be a premises belonging to a math and used by the math for its purposes. If the property in its origin was a math property, it cannot be treated as a temple merely because the math had installed idols and permitted worship by the members of the community and the premises is used for rendering charitable and religious services. The Division Bench has proceeded on the erroneous impression that existence of an idol in a math property, when worshipped by the members of the community, would convert the math property into a temple."
41. In Sree Panimoola Devi Temple and others vs. Bhuvanachandran Pillai and others (2015) 12 SCC 698, the Hon'ble Supreme Court negated the contentions of the appellant therein that temple which is initially a private temple had acquired the status of a public temple with passage of time due to the visits of large number of persons and offerings made by the general public, including their participation in the religious rites. The judgment rendered by the Hon'ble Privy Council in Babu Bhagwan Din case (supra) was relied upon and it was observed as under:
"5. The case of the plaintiffs all along and also in the counter- affidavit filed before this Court has been that the temple was initially a private temple, but the same acquired the status of a public temple with passage of time due to the visits of large number of persons and offerings made by the general public, including their participation in the religious rites performed therein. Even if we are to accept the aforesaid position, the said ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 51 fact by itself would not be sufficient to enable a determination in favour of the plaintiffs.
.
6. In this regard, following observation of the Privy Counsel in Babu Bhagwan Din, AIR 1940 PC 7 may be extracted with profit:
".....In these circumstances it is not enough, in their Lordships' opinion, to deprive the family of their private property to show that Hindus willing to worship have never been turned away or even that the deity has acquired considerable popularity among Hindus of the r locality or among persons resorting to the annual mela.
Worshippers are naturally welcome at a temple because of the offerings they bring and the repute they give to the idol : they do not have to be turned away on pain of forfeiture, of the temple property as having become property belonging to a public trust. Facts and circumstances, in order to be accepted as sufficient proof of dedication of a temple as a public temple, must be considered in their historical setting in such a case as the present ; and dedication to the public is not to be readily inferred when it is known that the temple property was acquired by grant to an individual or family. Such an inference if made from the fact of user by the public is hazardous, since it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away ; and as worship generally implies offerings of some kind it is not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity."
7. Reliance has been placed by the learned counsel for the respondent-plaintiffs on a decision of this Court in Bala Shankar Maha Shanker Bhatjee vs. State of Gujarat 1995 Supp (1) SCC 485 to contend that worship by thegeneral public for long and offerings made by the public would give a private temple a status of a public temple.
8. A reading of the opinion of this Court in Bala Shankar, makes it clear that the worship by the members ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 52 of the public and offerings made was one of the several circumstances considered relevant by this Court for .
determination of the question, namely, whether the temple in question - Kalika Mataji Temple - is a public temple. There were several other relevant aspects that were taken into account by the Court to answer the said question, namely, cash allowance paid from the State treasury to maintain the deity from time to time; fixed grants given by the Rulers i.e. Scindia and British Rulers; the Temple and its properties being shown in government r records as belonging to Mataji and the respondents being shown as Pujaris. The reliance placed on Bala Shankar, therefore, is of no consequence."
42. From a conspectus of law as laid down in the aforesaid judgments, it is abundantly clear that the question whether the temple is a public or private one cannot be decided on any straightjacket formula and would depend on various factors wherein the Court will have to examine atleast some of these aspects:
(i) Historical origin of the temple;
(ii) Manner in which the affairs of the temple have been managed;
(iii) Whether the temple expenses are met from the contribution made by the public;
(iv) Whether the devotees offer worship as a matter of right;
(v) Dedication of the temple for the benefit of the public;
(vi) Whether devotees have been treating the temple as a public temple;
(vii) Location of the temple etc.etc.
43. It would be noticed that in all the judgments referred to hereinabove that the proceedings therein emanated from civil suits wherein the parties had led evidence and had also cross-examined ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 53 witnesses and it is on the basis of the pleadings and evidence so led .
that adjudication was made. However, in the present case, the parties have only relied upon the petition, replies and rejoinders, on the basis of which the questions of complex nature as we are faced with the instant petition cannot be answered without affording either of the parties a chance of cross-examination.
44. Even otherwise, the aforesaid question is only one out of the multiple complex questions that are required to be adjudicated and same can only be adjudicated on the basis of the evidence. Some of the other questions that arise for adjudication are enumerated below:-
(i) What is the status of petitioner No.1 vis-à-vis Shri Raghunathji Temple, particularly, after his ancestor Raja Jagat Singh abdicated his throne to the will of Shri Raghunathji and became its Chharibardar i.e. Vice Regent?
(ii) What is the mode of appointment of Kardar of the temple? Is it by the Chharibardar as alleged by the petitioners or by the State?
(iii) Whether the petitioners are claiming any adverse interest to that of the idol of Raghunathji by claiming himself to be the owner in possession of the temple, whereas it is Shri Raghunathji, who is in actual possession of the temple?
(iv) Whether the meaning assigned to word 'Chharibardar' by the petitioners is correct?
(v) What is the effect of the land and the temple situated thereupon being classified as Abadi Deh?
(vi) What is the effect of revenue records which only show Shri Raghunathji to be in possession of the property, whereas the petitioner No.1 is shown as Manager thereof?::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 54
45. In view of the firm stand taken by the petitioners on the .
one hand and the respondents on the other hand tangled and intricate dispute of facts going to the very core of the issue, is manifest herein. It is well settled that the writ Court is loathe to enter the thicket of disputed facts.
46. In Sohan Lal vs. Union of India and another AIR 1957 SC 529, a Constitution Bench of the Hon'ble Supreme Court while dealing with a writ wherein rival claims of title to the property had been raised held that civil suit is a proper remedy rather than approaching the Court under Article 226 of the Constitution of India for exercising the prerogative of issuing writs. It is apt to reproduce paragraphs 5 and 6 of the judgment as under:
"5. We do not propose to enquire into the merits of the rival claims of title to the property in dispute set up by the appellant and Jagan Nath. If we were to do so, we would be entering into a field of investigation which is more appropriate for a Civil Court in a properly constituted suit to do rather than for a Court the prerogative of issuing writs. There are questions of fact and law which is in dispute requiring determination before the respective claims of the parties to this appeal can be decided. Before the property in dispute can be restored to Jagan Nath it will be necessary to declare that he had title in that property and was entitled to recover possession of it. This would in effect amount to passing a decree in his favour. In the circumstances to be mentioned hereafter, it is a matter for serious consideration whether in proceedings under Art. 226 of the Constitution such a declaration ought to be made and restoration of the property to Jagan Nath be ordered.
6. Jagan Nath had entered into a transaction with the Union of India upto a certain stage with respect to the property in dispute, but no letter of allotment had been issued him. Indeed, he had been informed, when certain facts became known, that the property in question could not be allotted to him as he was a displaced person who had been allotted land in East Punjab. As between Jagan Nath ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 55 and the Union of India it will be necessary to decide what rights were acquired by the former in the property upto the stage when the latter .
informed Jagan Nath that the property would not be allotted to him.
Another question for decision will be whether Jagan Nath was allowed to enter into possession of the property because it was allotted to him or under a misapprehension as the Union of India was misled by the contents of his application. The case of the Union of India is that under the scheme Jagan Nath was not eligible for allotment of a house in West Patel Nagar, as it was subsequently discovered that he had been allotted, previous to his application, agricultural land in the District of Hissar. Being satisfied that Jagan Nath was not eligible for allotment, the Union of India refused to allot to him the tenement No. 35, West Patel Nagar and allotment of that house was made to the appellant who was found to be eligible in every way. The appellant was accordingly given possession of the property after Jagan Nath's eviction. The appellant had complied with all the conditions imposed by the Union of India and a letter of allotment was actually issued to him and he entered into possession of the property in dispute under the authority of the Union of India. Did the appellant thereby acquire a legal right to hold the property as against Jagan Nath? In our opinion, all these questions should be decided in a properly constituted suit in a Civil Court rather than in proceedings under Art. 226 of the Constitution."
47. A constitution Bench of the Hon'ble Supreme Court in Thansingh vs. Superintendent of Taxes, Dhubri and others AIR 1964 SC 1419 explained the nature of jurisdiction exercised by the High Court under Article 226 and it was held:
"7..... "The jurisdiction of the High Court under Art. 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restric- tions which are expressly provided in the Article. But the exercise of the jurisdiction is discretionary; it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 56 to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be .
obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Art. 226, where the petitioner has an alternative remedy which, without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed."
48. In New Satgram Engineering Workers and another vs. Union of India and others AIR 1981 SC 124, three Hon'ble Judges Bench of the Hon'ble Supreme Court held that whether a workshop or director's bungalow was a mine or not a mine was to be decided in a civil suit being a civil dispute and not in a petition under Article 226 of the Constitution and held as under:
"23. The question whether the engineering unit was 'situate in, or adjacent to', the New Satgram Coal Mine and was 'substantially' used for purposes of the mine as well as the question whether the Technical Director's Bungalow and the Guest House were 'solely' used for the residence of officers and staff of the mine and, therefore, fall within the definition of 'mine' as contained in Section 2 (h) of the Nationalisation Act, cannot obviously be decided in proceedings under Article 226 of the Constitution. The proper remedy is by way of a suit, as rightly observed by the High Court.
49. In Ghan Shyam Das Gupta and another vs. Anant Kumar Sinha and others AIR 1991 SC 2251 the Hon'ble Supreme Court held that the remedy under Article 226 was not intended to supercede the modes of obtaining the relief before a civil Court or to deny defences legitimately open in such actions and it was only in ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 57 exceptional cases where provisions are rendered incapable of giving .
relief to an aggrieved party that a writ would be maintainable. It is apt to reproduce paras 7 and 8 of the judgment, which read thus:
" 7. It has been contended, and in our view correctly, that if the claim of the writ petitioners of being in pos- session of the premises as tenants in their own right is rejected and they are held to have been inducted by Prabhas Kumar Sinha or his father Dr. K.C. Sinha, they are liable to be evicted in execution of the present decree. It was, therefore, necessary to adjudicate upon the dispute between the parties and record a finding on the character of possession of the writ petitioners, before proceeding to consider whether the decree is executable or not against them, and having not done so, the High Court has seriously erred in law in allowing the writ petition by the impugned judgment. The decision on the disputed issue was dependent on the consideration of the evidence to be led by the parties, and while exercising the writ jurisdiction the High Court was not expected to go into that question. In the circumstances, the Court ought to have refused to dispose of the writ petition on merits, leaving the writ petitioners to avail of the remedy before the civil court. The error in the judgment as pointed out earlier was the consequence of the initial mistake in entertaining the petition.
8. The principle as to when the High Court should exercise its special jurisdiction under Article 226 and when to refuse to do so on the ground of availability of an alternative remedy has been settled by a long line of cases. The remedy provided under Article 226 is not intended to supersede the modes of obtaining relief before a civil court or to deny defences legitimately open in such actions. As was observed in State of Andhra Pradesh v. Chitra Venkata Rao [1976] 1 SCR 521 the jurisdiction to issue a writ of certiorari is supervisory in nature and is not meant for correcting errors like an appellate court. In Thansingh Nathmal and Ors. v.A. Mazid: [1964] 6 SCR 654 a case dealing with liability to pay sales tax, the appellants ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 58 without following the statutory remedy under the Sales Tax Act, moved the High Court under Article 226 on the ground that the .
Act was ultra vires. The challenge was rejected. Another contention, namely, that the finding of the Commissioner that the goods were actually within the State at the time of the contract was based on no evidence and was purely specu- lative, was also raised. This ground also failed before the High Court and the writ petition was dismissed. Approving the decision, this Court observed that if the appellants had persued the statutory remedy under the Act and the question had been referred to the High Court, the Court could have appropriately advised the Commissioner, but not having done so the High Court could not be asked to assume the role of an appellate court over the decision of the Commissioner either on a question of fact or even of law. Again when a learned Single Judge of the High Court and on appeal a Division Bench proceeded to examine the correctness of an order in relation to grant of a permit to ply a vehicle under the Motor Vehi- cles Act, it was observed by this Court in M. Naina Mohammed v. K.A. Natarajan & Ors., [1976] 1 SCR 102, that the power under Article 226 is supervisory in nature and the Judges at both the tiers had unwittingly slipped into the subtle but, fatal, error of exercising a kind of appellate review. So far the question of executability of a decree is concerned, the Civil Procedure Code contains elaborate and exhaustive provisions for dealing with it in all its aspects. The numerous rules of order XXI of the Code take care of differ- ent situations, providing effective remedies not only to judgment-debtors and decree-holders but also to claimant objectors as the case may be. In an exceptional case, where provisions are rendered incapable of giving relief to an aggrieved party in adequate measure and appropriate time, the answer is a regular suit in the civil court. The remedy under the Civil Procedure Code is of superior judicial quality than what is generally available under other stat- utes, and the Judge being entrusted exclusively with admin- istration of justice, is expected to do better. It will be, therefore, difficult to find a case where interference in writ jurisdiction for granting relief to a judgment-debtor or a claimant objector can ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 59 be justified. The rules 97 to 106 of order XXI envisage questions as in the present appeal to be determined on the .
basis of evidence to be led by the parties and after the 1976 Amendment, the decision has been made appealable like a decree. The High Court, in the present case, therefore, ought not to have embarked upon a decision of the writ petition on merits, and should have refused to exercise its special jurisdiction on the ground of alternative remedy before the civil court."
50. In Smt. Parvatibai Subhanrao Nalawade vs. Anwarali Hasanali Makani and others, AIR 1992 SC 1780, the Hon'ble three Judges Bench of the Hon'ble Supreme Court observed as under:
"10.......Before closing this judgment, we would, like to emphasise that in cases relating to immoveable properties which are governed by the ordinary civil law the High Court should not exercise its special jurisdiction under the Constitution unless the circumstances are exceptional. This aspect has been discussed by this Court earlier on several occasions."
51. In State of Rajasthan vs. Bhawani Singh, AIR 1992 SC 1018 the Hon'ble Supreme Court while considering the jurisdiction as well as disputed question of title in the title and cannot go into disputed question appurtenant to title of the property and it was observed:
"7. Having heard the counsel for the parties, we are of the opinion that the writ petition was misconceived insofar as it asked for, in effect; a declaration of writ petitioner's title to the said plot. It is evidence from the facts stated hereinabove that the title of the writ petitioner is very much in dispute. Disputed question relating to title cannot be satisfactorily gone into or adjudicated in a writ petition."
52. In Mohan Pandey and another vs. Smt. Usha Rani Rajgaria and others AIR 1993 SC 1225 the Hon'ble Supreme Court ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 60 considered the question whether the jurisdiction of the High Court .
under Article 226 of the Constitution could be invoked for enforcement of a private right to immoveable property claimed by and against a private individual. The Hon'ble Supreme Court observed as under:
" 6......There is no doubt that the dispute is between two private persons with respect to an immovable property. Further, a suit covering either directly a portion of the house-property which is in dispute in the present case or in any event some other parts of the same property is already pending in the civil court. The respondent justifies the step of her moving the High Court with a writ petition on the ground of some complaint made by the appellants and the action by the police taken thereon. We do not agree that on account of this development, the respondent was entitled to maintain a writ petition before the High Court. It has repeatedly been held by this court as also by various High Courts that a regular suit is the appropriate remedy for settlement of disputes relating to property rights between private persons and that the remedy under Article 226 of the constitution shall not be available except where violation of some statutory duty on the part of a statutory authority is alleged. And in such a case, the court will issue appropriate direction to the authority concerned. If the grievance of the respondent is against the initiation of criminal proceedings, and the orders passed and steps taken thereon, she must avail of the remedy under the general law constitutional jurisdiction to be used for deciding disputes, for which remedies, under the general law, civil or criminal, are available. It is not intended to replace the ordinary remedies by way of a suit or application available to a litigant. The jurisdiction is special and extra- ordinary and should not be exercised casually or lightly. We, therefore, hold that the High Court was in error in issuing the impugned direction against the appellants..."
53. It is thus well settled that the principle of law that a regular suit is the appropriate remedy for settlement of disputes relating to ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 61 property rights between private parties. The remedy under Article 226 .
of the Constitution is not available except where violation of some statutory duty on the part of the statutory authority is alleged and in such a case, the court will issue appropriate direction to the authorities concerned. The High Court cannot allow the constitutional jurisdiction to be used for deciding disputes for which remedies lie under the general law, civil or criminal are available. It is not intended to replace the oridinary remedies by way of a suit or application available to a litigant. The jurisdiction is special and extraordinary should not be exercised casually or lightly. The writ petition is filed in public law remedy. The High Court while exercising a power of judicial review is concerned with illegality, irrationality and procedural in propriety of an order passed by the State or a statutory authority etc. Remedy under Article 226 of the Constitution cannot be invoked for resolution of a private law dispute as contra-distinguished from a dispute involving public law character. It is also well settled that a writ remedy is not available for resolution of a property or title dispute.
54. The following principles emerge from the aforesaid decisions:
(i) Writ Petition is a public law remedy and cannot be invoked for resolution of private law disputes. Therefore, a writ petition is not maintainable for resolution of a property dispute or for declaration of title.
(ii) Where there is an alternative effective and effacious remedy available under law the High Court wil not exercise its jurisdiction under Article 226. But, rule of such exclusion is a rule of discretion and where the matter involves enforcement of fundamental right or ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 62 failure to follow principles of natural justice discretion may be exercised to entertain petition under Article 226.
.
(iii A Writ Petition is not intended to replace ordinary remedies by way of suit or application. Where an alternative remedy was available, a petitioner cannot allow that remedy to be time barred or allow it to be dismissed and then apply under Article 226 contending that he has no other remedy.
(iv)
r to
A writ petition is not an appropriate remedy where the matter requires determination of disputed questions of fact involving elaborate examination of evidence. But, where fundamental rights are infringed, writ petition may, in appropriate cases, be entertained, even if the matter involves determination of disputed questions of fact.
55. It is contended by Mr. Bhupender Gupta, learned Senior Counsel for the petitioners that the petitioners are not seeking declaration of title, however, in our considered opinion, while praying for a writ of certiorari to quash the impugnd orders, they are, in effect, seeking declaration of title to the properties of Mandir Shri Raghunathji.
At the same time, petitioner No.1 is seeking declaration to the properties of Shri Raghunathji as being his private properties to the exclusion not only against the general public but also to the exclusion of respondent No.4, who is none other than the real brother of petitioner No.1 and even respondent No.3, who is first cousin of petitioner No.1 and respondent No.4. No doubt, the petitioners are also seeking quashing of the impugned orders, but those orders can only be quashed in case this Court on the basis of the material is in a position to come to a definite conclusion that the property is a private temple as is alleged by the petitioners and not public temple as contested by the ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 63 respondents. It is only then and then alone that this Court would .
proceed to issue a writ of certriorari to quash the impugned orders.
56. At this stage, learned counsel for the petitioners would then contend that there is already an adjudication in their favour by the District Judge, Hoshiarpur in case titled Nanak Chand and others vs. Damodar Dass wherein it has been categorically found that the temple was built by the ancestors of Damodar Dass and as it was damaged in the earthquake of 1905, it was rebuilt by Damodar Dass at his own expenses about seven years back, as admitted by Nanak Chand petitioner himself. The Kardar of this idol was appointed by Rai Bhagwant Singh who admitted that the idol in this temple is the private property of the family of Damodar Dass. This idol is also not mentioned in the village Wajib-ul-arz which deals with public trusts.
57. In addition to the above, learned counsel for the petitioner would contend that even in the inquiry conducted by the Single Man Inquiry Commission of Hon'ble Mr. Justice D.B. Lal, Judge of this Court and it was found after a detailed inquiry that the temple was the private property of Raja and Government had no right to interfere with the same.
58. On the other hand, the learned Advocate General would contend that the decision rendered by the learned District Judge, Hoshiarpur is in 'rem' because it was a case between the two private individuals wherein the Government was not a party.
59. Similar issue came up before a Division Bench of this Court in Mahant Bal Dass vs. State of Himachal Pradesh and another 1988 (1) Sim. L.C. 226 wherein not only the vires of the Act ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 64 were challenged but even the action of the respondents-State including .
temple within Schedule-1 was assailed. In addition thereto, the reliance like in the instant case was also placed therein upon the judgment rendered by the District Judge, Hoshiarpur in an earlier litigation which was between the two private individuals. Indisputably therein also, the petitioner had claimed that he was entitled to own, use and manage as he likes to the exclusion of the general public, the temple in question and the properties appertaining thereto, whereas the State had claimed that the trust was established and dedicated for a public purpose of a charitable or religious nature of which the petitioner is merely a Mohtmim (Manager) in his capacity as the Gaddi Nashin Mahant for the time being.
60. This Court after carefully analyzing the pleadings held that such disputed questions of title were apparently incapable of being decided without evidence being led and without an adjudication of rights based on such evidence. It was further held that a just and proper determination of the controversy, was not possible without affording to the parties an opportunity to establish their respective case by leading documentary and oral evidence, which can be tested by cross-examination and appreciated in light of all the relevant considerations.
61. It was further held that even though the name of the temple i.e. Mandir Damtal had been included in Schedule-I of the Act and because there was a legislative determination, however, such determination was neither final nor conclusive and the parties were entitled to challenge such notification in the Court of law on the ground ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 65 that it does not fall within the cover of the definition of charitable .
endowment or Hindu Public Religious Institution. It is apposite to reproduce the relevant observations which read thus:
"17. The petition is resisted by the Respondents, inter alia, on the ground that the Gaddi Nashn Mahant is only a Mohtmim (Manager) and not the owner of the temple and its properties. The settlement of 1868 and the entries in the revenue records as a statement made by the Petitioner himself on July 24, 1978, is relied upon in support of this plea. The Respondents contend that the decision rendered by the district judge Hoshiarpur and kangra District in rem because it was a case between two private individuals and the Government was not a party. Besides, in the said Judgment itself it is recorded that the then Mahant had admitted in the plaint that the large property attached to the Thakurdwara was for religious and charitable purposes. The Muaffis were to continue till the existence of Thakurdwara subject to the condition of good behaviour of the incumbent(s). The assertion of the Petitioner that the temple as well as the property attached thereto are his private properties and that the temple is not a public religious institution is emphatically denied. It is also asserted that a Mohtmira (Manager) cannot claim to be the owner of the property of the temple and that the owner is the temple itself. According to the Respondents, the inclusion of the name of the Mandir Damtal in Schedule-I of the Act was done after proper survey and such inclusion is neither ultra vires the Act nor violative of the Petitioner's fundamental rights.
18. Against the background of the aforesaid controversy in the pending suit and the present writ petition, it is manifest that a question directly and substantially in issue, broadly stated, is whether Mandir Damtal and the properties appertaining thereto are the private property of the Petitioner which he is entitled to own, use and manage as he likes to the exclusion of the general public, as alleged by him, or whether the said Mandir and the properties appertaining thereto constitute a trust established and dedicated for a public purpose of a charitable ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 66 or religious nature of which the Petitioner is merely a Mohtmim (Manager) in his capacity as the Gaddi-Nashin Mahant for the .
time being, as alleged by the State/Advocate-General. Such a seriously disputed question of title, in our considered opinion, is apparently incapable of being decided without evidence being led and without an adjudication of rights based on such evidence. A just and proper determination of the controversy, in our judgment, is not possible without affording to the parties an opportunity to establish their respective case by leading documentary and oral evidence, which can be tested by cross- examination and appreciated in light of all the relevant considerations.
19. It is true that by the inclusion of the name of Mandir Damtal in Schedule I of the Act, there is a legislative determination, as it were, that the said temple is a charitable endowment and/or a Hindu Public Religious Institution and/or a place of public religious worship dedicated to or for the benefit or use as of right by the Hindu community or any section thereof, as the case may be. However, such a legislative judgment is neither final nor conclusive. This proposition is incontrovertible.
20. In Panipat Woollen and General Mills Co. Ltd. and Anr. v. Union of India and Ors., 1986 4 SCC 368, a similar question arose for consideration. The Sick Textile Undertakings (Taking Over of Management) Act, 1972, provides in Section 4(1) that on or before the appointed day, the management of the sick textile undertakings specified in the First Schedule shall vest in the Central Government. The expression "sick textile undertaking" is duly defined in the said Act. One of the submissions in support of the challenge to the constitutionality of the said Act was that the Legislature having itself decided the question whether an undertaking is a sick textile undertaking or not, without giving any opportunity to the owner of such undertaking to make a representation, had damaged the basic structure of the Constitution. The submission was repelled in the following words:::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 67
By including certain textile undertakings as sick textile undertakings in the First Schedule to the Takeover Act, .
the legislature has not made any judicial or quasi-judicial determination, nor has the legislature given any judgment, as contended on behalf of the Petitioners, although such inclusion is sometimes loosely expressed as 'legislative judgment'. In Section 2(d), the legislature has laid down the criteria for a sick undertaking. The sick textile undertakings have been specified in First Schedule on the basis of the tests laid down in Section r 2(d). In including the sick textile undertakings in the First Schedule, the legislature has not acted arbitrarily, for, it has also laid down the criteria or tests for such inclusion. If any undertaking which has been so specified in the First Schedule does not satisfy the tests under Section 2(d) of the Takeover Act, the owner of it is entitled to challenge such inclusion or takeover in a Court of law although such challenge has to be founded on a strong ground. Thus, there is no finality or conclusiveness in the legislative determination of a undertaking as a sick textile undertaking. Such determination is neither judicial nor quasi-judicial. Therefore, the question of damaging or altering the basic structure of the Constitution, namely, separation of powers among the Legislature, the Executive and the Judiciary, does not at all arise.
21. In the present case also, for the self-same reasons, the mere inclusion of specification of the name of Mandir Damtal in Schedule I of the Act, which purports to specify Hindu Public Religious Institutions or Charitable Endowment, does not attach any finality or conclusiveness to the legislative determination accordingly made. The Petitioner is entitled to challenge such inclusion in a court of law (including in a writ petition under Article 226 of the Constitution) on the ground, inter alia, that the temple does not fall within the coverage of the definition of the expression "Charitable endowment" or "Hindu public religious institution" given in Section 2(a) and 2(f) respectively of the Act.
There cannot be any dispute on that point and he has in fact ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 68 done so in this writ petition. The real question, as earlier pointed out, however, is whether having regard to the nature .
and character of questions raised and required to be determined in the writ nation the Petitioner should, in the exercise of our judicial discretion and in the interest of justice, be relegated to the remedy of canvassing those points in the pending suit, since they require evidence to be led to adjudicate upon a disputed question of title which is already issue the said it Having given an anxious consideration to the matter from all the relevant angles we think we should do so on the facts and in the circumstances of the case. Needless to add that having considered all the rival pleas we are not satisfied also that the matter in controversy is capable of being resolved purely on legal points or issues. We say no more lest any of the parties be prejudiced.
22. There are other reasons also which justify the relegation of the Petitioner to the pending suit for the determination of the controversy. The Advocate-General, who has instituted the is not a party in the present petition. It is difficult to appreciate how the controversy as to the tide herein raised can be determined in his absence since any decision on the issue will have a direct impact on the suit. One of the pleas advanced in the is that the suit under Section 92 of the Code of Civil Procedure not competent and not maintainable at all. A plea of that nature can properly be raised only in the suit itself and not in a collateral feeding and it cannot be decided by any other Court in the absence of the Plaintiff. Besides, a petition under Article 226 cannot be used and is not intended to be used as a medium or means to obtain declaratory orders or declaratory reliefs so as to make them a foundation for defeating claims which are pending adjudication in a previously instituted suit in a court of competent jurisdiction, especially when the grant of such reliefs involves the decision of the controversial issues pending adjudication in such a suit. The fact that the suit is pending on the original side of this High Court itself is not a factor which to our mind con solve these problems, even if both ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 69 are heard together, apart from the other difficulties involved in the process.
.
23. Shri D.R. Gupta urged that the suit is not a remedy at all for the adjudication of the dispute in view of the fact teat by virtue of the legislative determination purported to have been made as aforesaid on account of the inclusion of the temple in Schedule-I of the Act, the Petitioner will not be able to urge that the said temple and the not properties attached thereto are his private property and that they do constitute a trust created for a public purpose of charitable or religious nature. The contention has been advanced merely to be rejected. In the first place it has already been pointed out above that such a legislative determination or judgment so-called is not final and conclusive and that it is subject to challenge in a court of law. In the next place, there is no reason why the question as to the validity of the inclusion of the name of the temple in Schedule I and the purported legislative determination that it is a Hindu Public religious institution or charitable endowment, as the case may be cannot be challenged in the pending suit by seeking an amendment in the written statement and why the learned single Judge cannot determine the controversy by going into all the factual and legal aspects on the basis of evidence including the question of title. Be it stated that the learned Advocate-General was specifically asked by the Court as to whether he would oppose any application for amendment of the written statement incorporating the pleas raised in the present petition, if and when moved by the Petitioner in the pending suit. He expressly stated that such an application, if and when presented, will not be opposed by him.
62. The aforesaid judgment squarely applies to the facts of the instant case and we otherwise see no reason to take a different view.
63. Even otherwise, it is more than settled that the High Court in exercise of its writ jurisdiction under Article 226 should not interfere with the matters, which are in the realm of private laws and it can ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 70 otherwise be taken to be well settled that where there is disputed .
questions of fact, which require evidence before the same can be established, then as a matter of practice, the Court would not entertain such writ petition.
64. It is equally settled law that when an alternative and equally efficacious remedy is open to the litigant, he should be required to pursue that remedy and not invoke the writ jurisdiction of the High Court. Equally, the existence of alternative remedy does not affect the jurisdiction of the Court to issue writ, but ordinarily that would be a good ground for refusing to exercise the discretion under Article 226.
65. This petition involves seriously disputed questions of fact and even otherwise the rival claims of the parties are such, which can only be investigated and determined on the basis of evidence, which may be led by the parties in a properly instituted civil suit rather than by a court exercising prerogative of issuing writs.
66. For the foregoing reasons, after having given an anxious consideration to the issue under examination, the writ petition is rejected without entering into the merits of the dispute and subject to the rights of the parties to be regulated in accordance with law. It goes without saying that in the event of the suit being filed within a period of 30 days, the State shall not be entitled to raise either the question of limitation or the question of non-service of statutory notice under Section 80 CPC and the Court shall proceed to determine the lis and also consider any prayer made for interim relief strictly in accordance with law without being influenced by anything stated/observed hereinabove. It is made clear that none of the aforesaid observation ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP 71 shall be taken to be an expression of opinion on the merits much less .
operate as resjudicata. It further goes without saying that even though by virtue of legislative determination, Shri Raghunathji Temple has been included in the Schedule-1 of the Act. However, it is made clear that such a legislative determination or judgment so called is not final or conclusive and will be subject to challenge in a court of law as has already been held by this Court in Mahant Bal Dass case (supra).
67. In light of the aforesaid observations, the petition is disposed of, leaving the parties to bear their own costs. Pending application (s) if any, also stands disposed of. Interim order dated 1.8.2016 is vacated.
(Tarlok Singh Chauhan) Judge (Chander Bhusan Barowalia) August 31, 2017. Judge (GR) ::: Downloaded on - 01/09/2017 23:26:35 :::HCHP