Himachal Pradesh High Court
Pardeep Kumar vs State Of H.P. And Others on 13 June, 2023
Author: Satyen Vaidya
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 250 of 2019 Reserved on: 31.05.2023 Decided on: 13.06.2023
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Pardeep Kumar ......Petitioner
Versus
State of H.P. and others .......Respondents
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Coram The Hon'ble Mr. Satyen Vaidya, Judge Whether approved for reporting?1 Yes For the Petitioner : Mr. G.C. Gupta, Senior Advocate, with Ms. Meera Devi, Advocate.
For the Respondents : Mr. Mohinder Zharaick, Additional Advocate General, for the respondents- State.
r Mr. K.D. Sood, Senior Advocate, with Mr. Sanjeev Sood, Advocate, for respondents No. 2 and 3.
Mr. R.K. Bawa, Senior Advocate with Mr. Ajay Kumar Sharma, Advocate, for respondents No. 4, 8, 9, 11, 28 (i), 29 (i), 29 (iv) and 30 to 77.
Mr. T.S. Chauhan, Advocate, for respondents No. 21, 78(i), 78 (ii), 80, 83, 85, 87, 88 (i), 88 (iv), 89, 90, 92, 94, 95 and 96.
Names of Respondents No. 5, 36, 37, 78(iii), 79(i) to 79 (iii), 84, 91 and 93 stand deleted by the order of the Court.
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Satyen Vaidya, Judge The order dated 11.4.2019 passed by learned Civil Judge, Bilaspur, District Bilaspur, H.P. in CMA No. 1 Whether reporters of print and electronic media may be allowed to see the order?
::: Downloaded on - 13/06/2023 20:31:54 :::CIS 275-6 of 2019 in Civil Suit No.146-01 of 2015/1987, is the subject matter of challenge in the instant petition.
2. Brief facts necessary for adjudication of the .
petition are that Civil Suit No. 85 of 1987 was filed by the predecessor-in-interest of petitioner with another seeking relief in the following terms:
1. A decree for declaration that Section 18 of the Himachal Pradesh Hindu Public Religious Institutions and Charitable Endowments Act, 1984 is ultra vires of the Articles 14, 25 and 26 of the r Constitution of India.
2. A decree for declaration that the order dated 10th December, 1985, passed by the Divisional Commissioner, exercising the powers of Commissioner under the Himachal Pradesh Hindu Public Religious Institutions and Charitable Endowment Act, 1984 appointing defendants Nos. 3 to 13 as new trustees/committee is illegal and ultra vires and as such void with consequential relief of injunction restraining defendants 1 to 13 not to interfere with the management and the functions of the hereditary trustees of Shri Naina Devi shrine.
3. A decree for declaration that only Bhojkies of Shri Naina Devi shrine are entitled to continue as Trustees of Shri Naina Devi Shrine and no other person has any right to be a trustee under the Himachal Pradesh Hindu Public Religious Institutions and Charitable Endowments Act, 1984.
4. A decree for declaration that the order dated 15th May, 1987 of the Deputy Commissioner, Bilaspur ::: Downloaded on - 13/06/2023 20:31:54 :::CIS 3 exercising the powers of Commissioner under the Himachal Pradesh Hindu Public Religious Institutions and Charitable Endowment Act, 1984 are illegal, ultra vires and void with consequential relief restraining the defendants from interfering .
with the rights of the Bhojkies of Shri Naina Deviji Shrine in maintenance of Shrine and for distribution of the share of the profits in accordance with the Rules of Samvat 2005 Bikram in the share as determined in the latest revenue records".
3. Alongwith Civil Suit No. 85 of 1987, OMP No. 392 of 1987 was also preferred for interim injunction under Order 39 Rules 1 & 2 of the Code of Civil Procedure (for short, 'the Code'). On 27.10.1987, OMP No. 392 of 1987 was disposed of in terms of agreement arrived at between the parties and it was held as under:
"In view of the aforesaid agreement arrived at between the parties, it is ordered that the amounts be paid to all the Bhojkis/plaintiffs who may be interested in receiving the amount in accordance with the scheme formulated by the Deputy Commissioner, Bilaspur. The Bhojkis /persons entitled to receive the amounts can receive these amounts under protest and defendant No.1 shall have no objection in making the payments to these persons under protest. It is clarified that receiving of the payments by such persons shall not at all prejudice their rights to the merits of the case and these payments shall be subject to the final adjudication of the case.
It is further ordered that defendant No.1 shall maintain a record about the names of the various ::: Downloaded on - 13/06/2023 20:31:54 :::CIS 4 Pujaris/Bhojkis who act in the temple on specified periods so that the amounts payable to them or to any other Bhojki/Pujari may be adjusted subject to the result of the suit. The amounts shall be disbursed to the various persons within a period of one week from today. The .
present application is disposed of accordingly."
4. The Civil Suit No. 85 of 1987 was dismissed in default on 4.7.2011 and was restored to its original number on 19.5.2015. In the meanwhile, respondent No.2 on 3.8.2013 issued an office order making arrangement for apportionment of shares of Baridars/Pujaris from the amount collected by Shri Naina Devi Ji Temple Trust as offerings. It was clarified by respondent No.2 that the order so issued was subject to final outcome of the decision of the civil suit titled as Jai Parkash vs. State pending before the learned Civil Judge (Junior Division), Bilaspur. At this stage, it is relevant to notice that as a consequence of amendment in the pecuniary jurisdiction of Civil Courts in Himachal Pradesh, Civil Suit No. 85 of 1987 was transferred from this Court to the Court of learned Civil Judge (Jr. Division), Bilaspur.
5. The Office order dated 3.8.2013 passed by respondent No.2 was assailed in CWP No.9136 of 2013 ::: Downloaded on - 13/06/2023 20:31:54 :::CIS 5 before this Court. Vide order dated 27.5.2014 passed in CWP No. 9136 of 2013, this Court directed respondent No.2 to pass appropriate orders in the matter afresh in the light .
of the observations made by this Court. Direction was issued to respondent No.2 to decide the matter within one month from 6.6.2014. In compliance, respondent No.2 again issued office order dated 16.7.2014 and re-affirmed his earlier order dated 3.8.2013.
6. On restoration of Civil Suit before learned Civil Judge (Jr. Division) Bilaspur, an application was filed seeking direction to the Deputy Commissioner to comply with order dated 27.10.1987 passed in OMP No.392 of 1987. The application being CMA No. 194/6 of 2015 was decided by learned Civil Judge (Jr. Division), Bilaspur on 26.3.2016 in the following terms:
"After hearing both the parties, I am of the considered view that order dated 27.10.1987 of Hon'ble High Court will remain operative until the case is decided on merits. I have perused the order dated 27.10.1987 of Hon'ble High Court in consonance with the scheme formulated by D.C. on dated 15.5.1987. Perusal of scheme dated 15.5.1987 shows that it was operative only for 15 years and vide order dated 27.10.1987 it was ordered by Hon'ble High Court that amount will be paid to the bhojkis in accordance with the scheme formulated by the D.C. It is argued by the ::: Downloaded on - 13/06/2023 20:31:54 :::CIS 6 respondent No.2 that since 15 years have already been elapsed after the formulation of scheme dated 15.5.1987, therefore, it is no more operative now. Though, vide order dated 27.10.1987 the Hon'ble High Court ordered that amount will be paid to the bhojkis as per the scheme .
formulated by the D.C. dated 15.5.1987 but no specific period has been mentioned by Hon'ble High Court for which the scheme formulated will be operative. Further, it is mentioned in order dated 27.10.1987 that payment shall be subject to the final adjudication of the case which simply means that the bhojkis will be paid the offerings as per the scheme formulated by D.C. on dated 15.5.1987 until the case is finally decided.
The intention of Hon'ble High Court in passing the order dated 27.10.1987 on interim application was that the parties should obey that order till the case is finally decided. The Hon'ble High Court was not knowing at the time of passing order that case will remain pending for the period beyond 15 years. Hence, no time limit has been fixed for which the order dated 27.10.1987 shall remain in force. Moreover, ordinarily the interim orders remain in force until it is set aside or the case is finally decided.
Since neither order dated 27.10.1987 has been set aside till date nor the case is finally decided, therefore, the time limit i.e. 15 years mentioned in order dated 15.5.1987 is irrelevant and as it is mentioned in order dated
27.10.1987 that the payment shall be subject to final adjudication of the case, therefore, order will stand until the case is finally decided and the payment will still be made as per scheme dated 15.5.1987.
Order of D.C. dated 3.8.2013 is not operative as it has been passed interregnum i.e. period between the dismissal of the suit and its restoration. It is also argued in ::: Downloaded on - 13/06/2023 20:31:54 :::CIS 7 the contempt petition by the Counsel of respondent No.2 that the order dated 3.8.2013 has been passed in interregnum which shows that the respondent also admits that the order dated 3.8.2013 will not be operative after the restoration of the suit.
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It is also argued that contempt petition against respondent No.2 is still pending. Therefore, the present application is not maintainable. In this regard, it is to say that the present case is targeted and oldest case of the Court. Hence, the case cannot be adjourned until the contempt petition is decided. Obviously this order will be subject to order of Hon'ble High Court in the contempt petition. But till then the respondent No.1 is bound to make the payment of offerings as per the order dated 27.10.1987 in OMP No. 392 of 1987. Therefore, respondent No.1 Commissioner Temple Trust Shri Naina Devi Ji is directed to comply order dated 27.10.1987 of Hon'ble High Court. The application stands disposed of accordingly. It be tagged with the main case file".
7. The above noted order passed by learned Civil Judge (Jr. Divn.) Bilaspur was assailed before this Court in CMPMO No. 143 of 2016, which was decided on 10.4.2018 by a co-ordinate Bench of this Court. The order dated 26.3.2016 passed by learned Civil Judge (Jr. Divn.), Bilaspur was set-aside in following terms:
"5. Since, for all the aforesaid reasons, the learned trial Court has rendered a fallacious conclusion(s), conclusions whereof are grooved upon an erroneous interpretation of an order recorded by this Court upon OMP No. 392 of ::: Downloaded on - 13/06/2023 20:31:54 :::CIS 8 1987, rather when it was enjoined to withhold making of the orders impugned before this Court, (i) and, was enjoined to elicit from the Deputy Commissioner concerned, (ii) given the apparent termination, of the longevity of the apposite scheme, an apt consensual .
scheme, whereafter upon considering the respective contentions of the litigating parties, it was enjoined to re- enliven the manner of apposite distribution of funds.
However, the learned Civil Judge, Junior Division, Bilaspur, has, despite the apposite scheme surviving only upto 15 years, termination whereof occurred in the month of May, 2002, has made a gross mis-interpretation, of, orders pronounced, by this Court in OMP NO. 392 of 1987, also made an erroneous interpretation, of the pronouncement recorded, by this Court in CWP No. 6819 of 2014, than, as aforestated, its, seeking an appropriate application, from, the defendants accompanied by a consensual scheme, for hence validating besides enabling the manner of distribution of funds, amongst, the Bhojakis. Consequently, the impugned order is set-aside and the learned Civil Judge, Junior Division, Bilaspur is directed to for facilitating the distribution of funds amongst the Bhojakis, hence seek, from, the contesting parties, appropriate applications accompanied by appropriate scheme(s), whereafter, he shall pass order(s), in accordance with law".
8. The efficacy of the order dated 27.10.1987 passed in OMP No. 392 of 1987 was, thus, held to be co-
terminus with the scheme dated 15.5.1987 formulated by the District Collector and accordingly it was held that said order had lost relevance in May 2002. Learned Civil Judge ::: Downloaded on - 13/06/2023 20:31:54 :::CIS 9 (Junior Division), Bilaspur was directed to pass orders afresh for facilitating the distribution of funds amongst the Bhojkis after seeking from the contesting parties, .
appropriate applications accompanied by appropriate scheme(s). Order dated 10.4.2018 passed in CMPMO No. 143 of 2016 was accepted by all concerned.
9. It is thereafter that the impugned order came to be passed by learned Civil Judge, Bilaspur on 11.4.2019.
The learned Civil Judge, Bilaspur approved the scheme filed by respondents No. 1 to 3 and ordered that all eligible shareholders Pujari/Bhojkis would be given livelihood amount at the rate of Rs.269.17 per day i.e. Rs.8,075/- per month. The notification dated 7.8.2018 issued by the Government of Himachal Pradesh was made basis for the order. Being dis-satisfied with the order passed by learned Civil Judge, Bilaspur, petitioner has approached this Court by way of instant petition.
10. I have heard learned counsel for the parties and have also gone through the records of the case carefully.
11. Learned Senior counsel representing the petitioner has challenged the impugned order primarily on ::: Downloaded on - 13/06/2023 20:31:54 :::CIS 10 the ground that the same is non-speaking and hence is reflective of non-application of mind. He further contended that learned Civil Judge, Bilaspur has passed the impugned .
order in a slipshod manner without even going through the records. There was more than one application before learned trial Court filed by the contesting parties proposing their respective schemes. The petitioner had also filed an application alongwith proposed scheme, but learned Civil Judge, Bilaspur without considering all such material on record has simply followed the interim scheme/criteria proposed by respondents No. 1 to 3 and has passed the impugned order.
12. In Sant Lal Gupta and others vs. Modern Cooperative Group Housing Society Limited and others (2010) 13 SCC 336, the Hon'ble Supreme Court has expounded the necessity, importance and requirement of recording of reasons in judicial orders as under:
"27. It is a settled legal proposition that not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the ::: Downloaded on - 13/06/2023 20:31:54 :::CIS 11 fundamentals of sound administration of the justice - delivery system, to make it known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the principles of natural justice.
"3. ... The giving of reasons for a decision is .
an essential attribute of judicial and judicious disposal of a matter before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind."
The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected. [Vide: State of Orissa v. Dhaniram Luhar (2004) 5 SCC 568; State of Rajasthan v. Sohan Lal & Ors. (2004) 5 SCC 573; Vishnu Dev Sharma v. State of Uttar Pradesh & Ors. (2008) 3 SCC 172; Steel Authority of India Ltd. v. Sales Tax Officer, Rourkela I Circle & Ors. (2008) 9 SCC 407; State of Uttaranchal & Anr. v. Sunil Kumar Singh Negi (2008) 11 SCC 205; U.P.S.R.T.C. v. Jagdish Prasad Gupta (2009) 12 SCC 609; Ram Phal v. State of Haryana & Ors.
(2009) 3 SCC 258; State of Himachal Pradesh v. Sada Ram & Anr. (2009) 4 SCC 422; and The Secretary & Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity & Ors., (2010) 3 SCC 732).
13. Analysing the impugned order at the touchstone of above noted exposition, it cannot be sustained for the reasons that in the impugned order learned Civil Judge, Bilaspur has not given any reasons for accepting the interim scheme proposed on behalf of respondents No. 1 to ::: Downloaded on - 13/06/2023 20:31:54 :::CIS 12 3 except that the fund/cash was the only source of livelihood for Pujaris/Bhojkis and no other interim scheme had been filed by any other party.
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14. The findings in respect of non-availability of any other scheme on record appears to be fallacious. Alongwith the instant petition, petitioner has annexed copies of pleadings filed before the learned trial Court as Annexures P-16 to P-20 to show that there were other applications with proposed scheme(s) filed before the trial Court after passing of judgment dated 10.4.2018 by this Court in CMPMO No. 143 of 2016. One of such application was on behalf of the petitioner, which finds place at page 180 of the paper book. Such factual position has not been denied on behalf of the respondents. Thus, the impugned order appears to have been passed by learned Civil Judge, Bilaspur without consideration of the entire material available before the court and its finding to the effect that no other scheme was filed are also rendered erroneous.
15. Viewed from another angle, though, the learned Civil Judge, Bilaspur in the impugned order has recorded the submissions of learned counsel for the plaintiff ::: Downloaded on - 13/06/2023 20:31:54 :::CIS 13 (petitioner herein) whereby opposition was made to the scheme proposed by respondents No. 1 to 3 and submission was made for releasing of funds to the parties .
as per scheme dated 16.7.2014 prepared by respondent No.2, yet there is no discussion or reason as to why the submission so made on behalf of the plaintiff/petitioner did not find favour with the learned trial Court or why the scheme proposed by respondents No. 1 to 3 was considered in preference to the proposal made on behalf of the plaintiff and for that matter by other parties also.
16. The reasons, in nature of controversy before the court, ought to have been objective indicators and relevant factors, since the effect of order proposed to be passed by learned Civil Judge, Bilaspur was to have civil and evil consequences, on the rights of the parties. Even in the case of acceptance of the scheme proposed by respondents 1 to 3, the Court was required to record its satisfaction as to sufficiency and relevance of the scheme for the purpose of serving the interest of justice. Learned Civil Judge, Bilaspur was called upon to adjudicate upon the rival claims of the parties insofar as these pertained to their respective rights of shares in the income of Shri Naina Devi Ji Temple Trust.
::: Downloaded on - 13/06/2023 20:31:54 :::CIS 14In fact, it was to be an order to maintain the balance of rights and equities between the parties during the pendency of suit. The rival claims of the parties, even for any other .
purpose, could not have been decided in a cursory manner, without recording any reason as to why the scheme proposed by respondents No. 1 to 3 would be satisfying the factual as well as legal requirements.
17. In view of above discussion, the petition is allowed, impugned order dated 11.4.2019 passed by learned Civil Judge, Bilaspur, District Bilaspur, H.P. in CMA No.75-6 of 2019, is set-aside with direction to learned Civil Judge, Bilaspur, District Bilaspur, H.P. to pass the orders afresh strictly in terms of directions issued by a co-
ordinate Bench of this Court vide judgment dated 10.4.2018 in CMPMO No. 143 of 2016.
The petition stands disposed of in the aforesaid terms, so also the pending miscellaneous application(s), if any.
(Satyen Vaidya)
13th June, 2023 Judge
(GR)
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