Madhya Pradesh High Court
Mohandas Chela Of Amardas,Mahant vs State Of M.P. on 23 August, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 23rd OF AUGUST, 2022
WRIT PETITION No. 4120 of 2010
Between:-
MOHANDAS CHELA OF AMARDAS,
MAHANT NARSINGH TILA MANDIR,
AGED 47 YEARS, OCCUPATION -
WORSHIP RESIDENT OF NARSINGH
TEELA, DATIA (MADHYA PRADESH).
........PETITIONER
(BY SHRI VINOD KUMAR BHARDWAJ - SENIOR
ADVOCATE WITH SHRI VIJAY SUNDARAM -
ADVOCATE)
AND
1. STATE OF MADHYA PRADESH
THROUGH - THE PRINCIPAL
SECRETARY, DEPARTMENT OF
REVENUE, GOVERNMENT OF
MADHYA PRADESH,
MANTRALAYA, VALLABH BHAVAN,
BHOPAL.
2. THE COLLECTOR DISTRICT
DATIA.
3. THE SUPERINTENDENT OF
POLICE, DATIA.
4. THE SUB DIVISIONAL OFFICER
(REVENUE) DATIA.
5. THE TEHSILDAR, TEHSIL &
2
DISTRICT DATIA.
6. THE SUB DIVISIONAL OFFICER-
CUM-ADDITIONAL TEHSILDAR,
PUBLIC WORKS DEPARTMENT,
DATIA.
7. THE CHIEF MUNICIPAL OFFICER,
MUNICIPAL COUNCIL, DATIA.
......RESPONDENTS
(SHRI DEEPAK KHOT - GOVERNMENT ADVOCATE
FOR RESPONDENTS NO. 1 TO 6)
SHRI RINKU SHAKYA, ADVOCATE FOR RESPONDENT
NO. 7)
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Reserved on : 17th of August, 2022
Delivered on : 23rd of August, 2022
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This petition coming on for hearing this day, the Court passed the
following:
ORDER
1. This writ petition under Articles 226/227 of the Constitution of India has been filed seeking the following relief(s) :
In view of the facts mentioned hereinabove, the petitioner prays that this Hon'ble High Court may be pleased to allow the petition and issue a writ of mandamus or any other writ, order or direction in the nature of writ -
(i) quash notice dated 9-7-2010 and proceeding initiated against petitioner by respondents under Section 248 of M.P. Land Revenue Code.
(ii) respondents be restrained from dismantling any of shop situated on spot on Survey No. 2613 of petitioner.
(iii) respondents be directed to re-deliver possession of 14 shops dismantled by them on 18-7-2010 duly constructed on spot;
- Alternatively they may be directed to compensation of Rs. 40.00 lakhs for damage caused to them to 14 shops of 3 petitioner ;
(iv) respondents be restrained from constructing road on the land of dismantled shops and misusing of blank signed papers obtained by them from petitioner on 18-7-2010 and be restrained from initiating any false proceeding under Dacoity Act or any other Act for which they have threatened.
(v) Issue any other writ, order or direction in the nature of writ under Article 226/227 of the Constitution of India, as this Hon'ble Court may deem fit in facts and circumstances of case;
(vi) Cost of the petition may also be allowed.
2. The necessary facts for disposal of present petition in short are that the petitioner claims himself to be the owner and in possession of property situated on Survey No. 2613 at Datia being Chela of Mahant Amardas of Shri Narsingh Temple. Earlier proceedings were initiated by the revenue authorities thrice against Mahant Amardas on the allegation of encroachment on Survey No. 2255, but it was held that there is no encroachment on 2255, but construction has taken place on Survey no. 2613. Inspite of that, the respondent no.6 issued notice dated 9-7-2010 on the allegation that the petitioner has encroached upon Survey No. 2255 and sought his explanation till 16-7-2010. The respondent no. 6 fixed the next date for 28-7-2010. However, without awaiting for the conclusion of proceedings initiated under Section 248 of M.P.L.R. Code, the respondents demolished 14 shops on 18 th July 2010 and caused a loss of Rs.40.00 lakhs to the petitioner. It was also alleged that the respondents are bent upon to demolish other shops also.
3. It is the claim of the petitioner that Mahant Amardas was the exclusive owner of Shri Narsingh Temple as well as property attached to temple situated and constructed on Survey No.2613 having an area of 0.129 hectares situated in Tahsil and District Datia. After the demise of 4 Mahant Amardas, the petitioner was declared as his successor under "Guru Parampara". Govt. Land bearing Survey No. 2255 is adjoining to Survey No. 2613 and a public road is constructed over Survey No. 2255. It is also claimed that some of the land forming part of Survey No. 2613 was given by the Petitioner, about 50 years back for widening of road. Earlier notice under Section 248 of M.P.L.R. Code was issued claiming that Petitioner has encroached upon Survey No. 2255 and after spot inspection, it was found that the petitioner has not encroached upon any part of Survey No. 2255.
4. In the year 1967, after obtaining permission from Nazul Department, S.D.O. and Municipal Council, Datia, shops were constructed on Survey No. 2613. In all 24 shops have been constructed by the Petitioner. The High Court by order dated 20-8-2009 passed in W.P. No.310 of 2004 had categorically held that there is nothing to show that State of M.P. was the owner of the property and on the contrary it was held that temple is a private property. Inspite of above mentioned facts, show cause notice was issued by respondent no. 6 on 9-7-2010. Written reply was submitted and the next date was fixed as 28-7-2010. But without awaiting for outcome of said proceedings, 14 shops were dismantled on 18-7-2010. The Petitioner has claimed that from Khasra Panchsala filed as Annexure P.4, it is clear that the Petitioner is the owner of Survey No. 2613. It is submitted that if the respondents were in need of additional land for widening of road, then they could have acquired the land, but they cannot forcibly demolish the shops constructed over Survey No. 2613.
5. The respondents No. 1 to 6 filed their return and submitted that the 5 petitioner has sought mandatory injunction which can only be granted in civil suit. Location of structure is a subject matter of demarcation which is possible only in a regular civil suit. Earlier proceedings under Section 248 of M.P.L.R. Code are not relevant in the light of the fact that encroachment was found in the present proceedings. The burden is on the petitioner to prove that he had validly constructed shops. If any permission was taken by the petitioner, then it was only for raising construction over survey No.2613 and therefore, the permissions granted by different departments are irrelevant to justify the encroachment done by the Petitioner. It is further submitted that a show cause notice was given to the petitioner, and the respondents have removed the construction which was found on Survey No. 2255.
6. I.A. No.3096 of 2022 has been filed for a direction to the respondents to restore the status quo ante and to comply the order dated 21-7-2010.
7. So far I.A. No.3096 of 2022 is concerned, the same cannot be decided unless and until the merits of the case are considered, accordingly, instead of deciding I.A. No.3096 of 2022, the matter was heard finally.
8. During the course of arguments, it was submitted by the Counsel for the Petitioner that the respondent no.6 was not competent to issue show cause notice. There was nothing on record to suggest that any demarcation was ever done by the respondents to find out as to whether the Shops were constructed over Survey No.2613 or Survey No.2255. The Counsel for the Petitioner, also relied upon the judgment passed by Supreme Court in the case of Kalynai (Dead) through L.R.s and others 6 Vs. The Sulthan Bathery Municipality and others reported in AIR 2022 SC 2073, Prabin Ram Phukan and another Vs. State of Assam and others reported in (2015) 3 SCC 605, Vidya Devi Vs. State of Himachal Pradesh and others reported in AIR 2020 SC 4708, Bajranga Vs. State of M.P. reported in 2021 SCC Online 27, The South Central Railway, Secundarabad and others Vs. The Special Deputy Collector, and Acquisition (General), Hyderabad and others reported in AIR 2015 Hyderabad 54.
9. Per contra, it is submitted by the Counsel for the Respondents that as per Section 24 of M.P.L.R. Code, powers were delegated to Asstt. Engineer, P.W.D. Further, the petitioner is not the owner of even Survey No.2613, therefore, has no authority or competence to file the writ petition. The Counsel for the State has relied upon the judgment passed by the Supreme Court in the case of Siemens Ltd. Vs. State of Maharashtra and Others reported in (2006) 12 SCC 33.
10. The Counsel for respondent no.7 has stated that Municipal Council Datia is not a necessary party and has been unnecessarily impleaded. The Counsel for the respondent no.7 has relied upon the judgment passed by the Supreme Court in the case of Chief Conservator of Forests, Govt. of A.P. Vs. Collector and Others reported in (2003) 3 SCC 472.
11. Heard the learned Counsel for the Parties.
12. The Counsel for the respondents, has questioned the competency of the petitioner to file the present petition by submitting that he is not the owner of Survey No.2613 and in fact Narsingh Temple is recorded in the Revenue Record as Bhumiswami. Thus, it is claimed that the petitioner has no locus standi to file the present petition.
713. In reply, it is submitted by the Counsel for the Petitioner, that since, this preliminary objection has not been raised in the return, therefore, the Counsel for the respondents cannot raise this question during the course of arguments. It is further submitted that even otherwise, the Petitioner has succeeded Mahant Amardas as per "Guru Parampara". The mis-description of petitioner has taken place because of some confusion due to order dated 20-8-2009 passed in W.P. No.310 of 2004. The Petition may be treated as a writ petition filed on behalf of Narsingh Temple.
14. Heard the learned Counsel for the Parties on the question of title.
15. The petitioner has claimed himself to be the owner of the Survey No.2613 and in order to show his ownership, the petitioner has relied upon Khasra of the year 1994-95 (Annexure P.4) which reads as under :
dzekad {ks=Qy dCtsnkj dk uke] mlds firk ;k ifr dk uke rFkk fuokl (vkSj ;fn LFkku] vf/kdkj ftlds varxZr Hkwfe /kkj.k dh xbZ gks vkSj Hkwfe [kkrksa ns; jktLo dk yxku es lfEefyr u gks rks mldk o.kZu) 1 2 3 2613 0]129 Eafnj izkbZosV ujflagth egar Jh eksgunkl psyk vejnkl tkfr cSjkxh irk fu%LFkkbZ Hkwfe Lokeh 2613 Eafnj izkbZosV ujflagth egar Jh eksgunkl psyk vejnkl tkfr cSjkxh irk fu%LFkkbZ Hkwfe Lokeh Thus, it is clear that Narsingh Temple is the owner of Survey No. 2613 and the name of the petitioner is simply mentioned as Mahant being Chela of Mahant Amardas.
16. Since, the petitioner himself has filed this document to show his ownership, therefore, any submission with regard to the title and 8 competence of the petitioner to file this petition, would not take the petitioner by surprise. Thus, this Court can always decide the question of title on the basis of documents filed by the Petitioner himself.
17. Therefore, the objection by the Petitioner, that since, his title has not been questioned by the respondents No.1 to 6 in their return, therefore, Shri Khot cannot raise the same in his arguments is misconceived and is hereby rejected.
18. Now the moot question for consideration is that whether, the petitioner is the owner of Survey No. 2613 or not?
19. The petitioner has claimed that he has succeeded Mahant Amardas under "Guru Parampara" and is Pujari. Now the question is that whether the Petitioner would become the owner of the property or the property would that of deity?
20. The Supreme Court in the case of M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, reported in (2020) 1 SCC 1 has held as under :
156. The recognition of the Hindu idol as a legal or "juristic"
person is therefore based on two premises employed by courts. The first is to recognise the pious purpose of the testator as a legal entity capable of holding property in an ideal sense absent the creation of a trust. The second is the merging of the pious purpose itself and the idol which embodies the pious purpose to ensure the fulfilment of the pious purpose. So conceived, the Hindu idol is a legal person. The property endowed to the pious purpose is owned by the idol as a legal person in an ideal sense. The reason why the court created such legal fictions was to provide a comprehensible legal framework to protect the properties dedicated to the pious purpose from external threats as well as internal maladministration. Where the pious purpose necessitated a public trust for the benefit of all devotees, conferring legal personality allowed courts to protect the pious 9 purpose for the benefit of the devotees.
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425. Courts recognise a Hindu idol as the material embodiment of a testator's pious purpose. Juristic personality can also be conferred on a Swayambhu deity which is a self-manifestation in nature. An idol is a juristic person in which title to the endowed property vests. The idol does not enjoy possession of the property in the same manner as do natural persons. The property vests in the idol only in an ideal sense. The idol must act through some human agency which will manage its properties, arrange for the performance of ceremonies associated with worship and take steps to protect the endowment, inter alia by bringing proceedings on behalf of the idol. The shebait is the human person who discharges this role.
**** Pujaris
435. A final point may be made with respect to shebaits. A pujari who conducts worship at a temple is not merely, by offering worship to the idol, elevated to the status of a shebait. A pujari is a servant or appointee of a shebait and gains no independent right as a shebait despite having conducted the ceremonies for a long period of time. Thus, the mere presence of pujaris does not vest in them any right to be shebaits. In Gauri Shankar v. Ambika Dutt, the plaintiff was the descendant of a person appointed as a pujari on property dedicated for the worship of an idol. A suit was instituted for claiming partition of the right to worship in the temple and a division of the offerings. A Division Bench of the Patna High Court held that the relevant question is whether the debutter appointed the pujari as a shebait. Ramaswami, J. held : (SCC OnLine Pat para
7) "7. ... It is important to state that a pujari or archak is not a shebait. A pujari is appointed by the Shebait as the purohit to conduct the worship. But that does not transfer the rights and obligations of the Shebait to the purohit. He is not entitled to be continued as a matter of right in his office as pujari. He is merely a servant appointed by the Shebait for the performance of ceremonies. Where the appointment of a purohit has 10 been at the will of the founder the mere fact that the appointees have performed the worship for several generations, will not confer an independent right upon the members of the family so appointed and will not entitle them as of right to be continued in office as priest."
436. A shebait is vested with the authority to manage the properties of the deity and ensure the fulfilment of the purpose for which the property was dedicated. As a necessary adjunct of this managerial role, a shebait may hire pujaris for the performance of worship. This does not confer upon the appointed pujaris the status of a shebait. As appointees of the shebait, they are liable to be removed from office and cannot claim a right to continue in office. The distinction between a shebait and a pujari was recognised by this Court in Sree Sree Kalimata Thakurani of Kalighat v. Jibandhan Mukherjee. A suit was instituted under Section 92 of the Code of Civil Procedure, 1908 for the framing of a scheme for the proper management of the seva-puja of the Sree Sree Kali Mata Thakurani and her associated deities. A Constitution Bench of this Court, speaking through J.R. Mudholkar, J. held : (AIR p. 1333, para 10) "10. ... It is wrong to call shebaits mere pujaris or archakas. A shebait as has been pointed out by Mukherjea, J. (as he then was), in his Tagore Law Lectures on Hindu Law of Religious and Charitable Trusts, is a human ministrant of the deity while a pujari is appointed by the founder or the shebait to conduct worship. Pujari thus is a servant of the shebait. Shebaitship is not mere office, it is property as well."
437. A pujari is appointed by the founder or by a shebait to conduct worship. This appointment does not confer upon the pujari the status of a shebait. They are liable to be removed for any act of mismanagement or indiscipline which is inconsistent with the performance of their duties. Further, where the appointment of a pujari has been at the will of the testator, the fact that appointees have performed the worship for several generations does not confer an independent right upon the appointee or members of their family and will not entitle them 11 as of right to be continued in office as priests. Nor does the mere performance of the work of a pujari in and of itself render a person a shebait.
An exclusive right to sue?
438. The position of a shebait is a substantive position in law that confers upon the person the exclusive right to manage the properties of the idol to the exclusion of all others. In addition to the exclusive right to manage an idol's properties, the shebait has a right to institute proceedings on behalf of the idol. Whether the right to sue on behalf of the idol can be exercised only by the shebait (in a situation where there is a shebait) or can also be exercised by the idol through a "next friend" has been the subject of controversy in the proceedings before us. The plaintiff in Suit No. 3, Nirmohi Akhara contends that the Nirmohis are the shebaits of the idols of Lord Ram at the disputed site. Mr S.K. Jain, learned Senior Counsel appearing on behalf of Nirmohi Akhara, urged that absent any allegation of maladministration or misdemeanour in the averments in the plaint in Suit No. 5, Devki Nandan Agarwal could not have maintained a suit on behalf of the idols as a next friend. Mr Jain placed significant reliance on the contention that the plaint in Suit No. 5 does not aver any mismanagement by the Nirmohis. Mr S.K. Jain urged that though the plaintiffs in Suit No. 5 (which was instituted in 1989) were aware of Suit No. 3 which was instituted by Nirmohi Akhara (in 1959) claiming as a shebait, the plaint in Suit No. 5 does not challenge the position of Nirmohi Akhara as a shebait. Consequently, Nirmohi Akhara urged that a suit by a next friend on behalf of the idol is not maintainable.
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483. The protection of the trust property is of paramount importance. It is for this reason that the right to institute proceedings is conceded to persons acting as managers though lacking a legal title of a manager. A person claiming to be a de facto shebait can never set up a claim adverse to that of the idol and claim a proprietary interest in the debutter property. Where a person claims to be the de facto shebait, the right is premised on the absence of a person with a better title i.e. a de jure manager. It must be shown that the de facto manager is in 12 exclusive possession of the trust property and exercises complete control over the right of management of the properties without any hindrance from any quarters. The person is, for all practical purposes, recognised as the person in charge of the trust properties. Recognition in public records as the manager would furnish evidence of being recognised as a manager.
484. Significantly, a single or stray act of management does not vest a person with the rights of a de facto shebait. The person must demonstrate long, uninterrupted and exclusive possession and management of the property. What period constitutes a sufficient amount is determined on a case-to-case basis. The performance of religious worship as a pujari is not the same as the exercise of the rights of management. A manager may appoint one or several pujaris to conduct the necessary ceremonies. In the ultimate analysis, the right of a person other than a de jure trustee to maintain a suit for possession of trust properties cannot be decided in the abstract and depends upon the facts of each case. The acts which form the basis of the rights claimed as a shebait must be the same as exercised by a de jure shebait. A de facto shebait is vested with the right to institute suits on behalf of the deity and bind its estate provided this right is exercised in a bona fide manner. For this reason, the court must carefully assess whether the acts of management are exclusive, uninterrupted and continuous over a sufficient period of time.
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508.....As held above, a stray or intermittent exercise of management rights does not confer upon a claimant the position in law of a de facto shebait.
21. The Supreme Court in the case of State of M.P. v. Pujari Utthan Avam Kalyan Samiti, reported in (2021) 10 SCC 222 has held as under :
23. This question has already been considered by the courts in Panchamsingh, which has further been affirmed by Kanchaniya. The law is clear on the distinction that the Pujari is not a Kashtkar Mourushi i.e. tenant in cultivation or a government lessee or an ordinary tenant of the muafi lands but 13 holds such land on behalf of the Aukaf Department for the purpose of management. The Pujari is only a grantee to manage the property of the deity and such grant can be reassumed if the Pujari fails to do the task assigned to him i.e. to offer prayers and manage the land. He cannot be thus treated as a Bhumiswami. The Kanchaniya further clarifies that the Pujari does not have any right in the land and his status is only that of a manager. Rights of pujari do not stand on the same footing as that of Kashtkar Mourushi in the ordinary sense who are entitled to all rights including the right to sell or mortgage.
24. In a judgment reported as Ramchand v. Janki Ballabhji Maharaj, it was held that if the Pujari claims proprietary rights over the property of the temple, it is an act of mismanagement and he is not fit to remain in possession or to continue as a Pujari.
25. The contrary view expressed by the High Court in Ghanshyamdas (1), Sadashiv Giri and Shrikrishna does not lay down good law in view of binding precedent of the Division Bench of the High Court in Panchamsingh as also of this Court in Kanchaniya. All these judgments presenting a contrasting view had not noticed the said binding precedents dealing with the rights of priest under the Gwalior Act.
26. Taking into consideration the past precedents, and the fact that under the Gwalior Act, Pujari had been given the right to manage the property of the temple, it is clear that that does not elevate him to the status of Kashtkar Mourushi (tenant in cultivation).
27. The ancillary question which arises is whether the priest is Inamdar or Maufidar within the meaning of Section 158(1)(b) of the Code. Such provision contemplates that the rights of every person in respect of land held by him in the Madhya Bharat region i.e. area of erstwhile Gwalior and Holkar as a pakka tenant or as a Muafidar, Inamdar or concessional-holder shall be protected as Bhumiswami. The priest does not fall in any of the clauses as mentioned in Section 158(1)(b) of the Code. The muafi was granted to the property of temples from payment of land revenue. Such muafi was not granted to a manager. Even Inam granted by the Jagirdar or the ruler to a priest is only to manage the property of the temple and not 14 confer ownership right on the priest. Therefore, in view of the judgment in Panchamsingh and also of this Court in Kanchaniya, the priest cannot be treated to be either a Muafidar or Inamdar in terms of the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007 (Act 66 of 1950) or in terms of the Gwalior Act. Since the priest cannot be treated to be Bhumiswami, they have no right which could be protected under any of the provisions of the Code.
22. This Court in the case of Mandir Murti Shri Radha Vallabh Ji through its Pujari Bhawani Shankar Vs. State of M.P. by order dated 1-7-2020 passed in W.P. No. 7987 of 2020 has held as under :
Accordingly, it is held that Pujari has no locus standi or say in the management of the temple property and thus they have no right to file a writ petition on behalf of the public trust or on behalf of Deity. Further, there is nothing on record to suggest that the property belongs to a public trust. Further no authorization to file the writ petition by the Pujari on behalf of the said public trust has been placed on record.
23. Thus, it is held that since, the petitioner is claiming himself to be a Pujari of Narsingh Temple, therefore, he would not acquire any right or title in the property and only the deity shall be the owner of the property. Since, the petition has not been filed for and on behalf of the deity and the petitioner has claimed that he himself is the owner of the property, therefore, it cannot be held that the petition has been filed on behalf of deity. Even otherwise, since the petitioner has claimed himself to be the owner of the property, therefore, this claim of the petitioner, is also contrary to the interest of deity.
24. Further the question is that whether the filing of writ petition by the petitioner in his name can be held to be a mis-description of name of Petitioner and can be held to be a petition on or behalf of the Deity?
25. This Court has already held that by claiming that the Petitioner is 15 the owner of Survey No.2613, the Petitioner has acted contrary to the interest of deity. Under these circumstances, it cannot be held that filing of writ petition by the petitioner can be held to be a mis-description of names of parties. Thus, the present case is that of non-joinder of necessary party.
26. Order 1 Rule 10 C.P.C. reads as under :
10. Suit in name of wrong plaintiff.-- (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
(2) Court may strike out or add parties.-- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
(4) Where defendant added, plaint to be amended.-- Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.
(5) Subject to the provisions of the1 Indian Limitation Act, 1877 (15 of 1877), Section 22, the proceedings as against any 16 person added as defendant shall be deemed to have begun only on the service of the summons.
27. Order 1 Rule 10(2) CPC empowers the Court to add the name of any person who ought to have been joined whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. However, as already clarified, the petitioner has not claimed that deity Narsingh Temple is the owner, but has claimed that he is the owner of the property in dispute, which is contrary to the interest of deity, therefore, unless and until the entire claim with regard to ownership of property is amended, this Court cannot exercise its power under Order 1 Rule 10(2) CPC.
28. Accordingly, the question of locus standi to file the petition is answered against the Petitioner.
Whether S.D.O. (P.W.D.)/Additional Tahsildar has competence to issue show cause notice dated 9-7-2010 or not?
29. The next question for consideration is that whether the petition should be dismissed on the ground of locus standi only, or the competence of respondent no. 6 to issue show cause notice and pass final order can also be considered.
30. In the present writ petition, the respondents no.1 to 6 have filed their return in a most casual manner. No proper pleadings have been taken. Even the respondents no.1 to 6 did not take a defence that demolition was done after final order was passed by the Asstt. Tahsildar/S.D.O. Whether the post of S.D.O., P.W.D. is equivalent to the post of Asstt. Engineer, P.W.D. has also not been clarified. How the S.D.O. (P.W.D.) can exercise the powers of Tahsildar under Section 248 17 of M.P.L.R. Code have also not been clarified.
31. However, it appears that after some time, other shops were also demolished by the respondents, therefore, W.P. No.7667 of 2010 was also filed by the Petitioner. The said writ petition is also listed along with this petition and has also been heard analogously.
32. In W.P. No.7667 of 2010, the respondents no.1 to 6 have relied upon the notification issued under Section 24 of M.P.L.R. Code and have also relied upon order dated 16-7-2010 passed by Additional Tahsildar cum S.D.O. (P.W.D.) on the basis of which 14 shops were demolished on 18-7-2010.
33. The present writ petition was filed on 21-7-2010, i.e., after order dated 16-7-2010 was passed. Neither the petitioner has made any reference of the said order, nor the respondents disclosed the same in their return filed in this writ petition. After 12 years of pendency of this writ petition, this Court does not think it proper to enquire into as to whether the O.I.C. had deliberately suppressed material facts or not?
34. So far as the question of competence of S.D.O. (P.W.D.) to issue the impugned show cause notice dated 9-7-2010 is concerned, Section 24 of M.P.L.R. Code reads as under :
Conferral by State Government of Powers of Revenue Officers on Officials and other persons :
(1) The State Government may confer on any person the powers conferred by or under this Code on any Revenue Officer.
(2) The State Government may confer on any Assistant Collector, Tahsildar or Naib-Tahsildar the powers conferred by this Code on a Revenue Officer of a higher grade.
35. The respondents have relied upon notification no.10-7-sa-1 seven dated 26-5-1975 published in M.P. Official Gazette on 25-7-1975 by 18 which the powers of Tahsildar under Section 248 of M.P.L.R. Code were also conferred on Asstt. Engineer having charge of Sub-Division of P.W.D. and Junior Engineer, PWD in respect of land falling within his jurisdiction.
36. Thus, it is clear that Asstt. Engineer having charge of Sub-Division of P.W.D. was conferred the powers of Section 248 of M.P.L.R. Code.
37. Now, the only question for consideration is that whether S.D.O. (P.W.D.) Datia was having powers/jurisdiction to exercise powers under Section 248 of M.P.L.R. Code or not?
38. It is submitted by the Counsel for the respondents that when an Asstt. Engineer exercises his powers in the field, then he is known as S.D.O. and the post of Asstt. Engineer and S.D.O. is one and the same.
39. As per the Madhya Pradesh Public Works Engineering (Gazetted) Service Recruitment Rules, 1969 (In short "Rules") [Rules which were in force in the year 2010], the post of Asstt. Engineer is a feeder post for promotion to the post of Executive Engineer. As per Madhya Pradesh Public Works Department Manual, the Administrative Structure is as under :
Section 4.- Administrative Structure 1.011. Engineer-in-Chief.-The Engineer-in-Chief is the professional adviser to the Government and is responsible for the overall working of the department. He will also be the coordinating authority amongst the Chief Engineers. 1.012. Chief Engineer.-The Chief Engineer is the Head of Department in respect of administration and control of staff within his jurisdiction.19
1.013. Circle.-The administrative unit of the department is the Circle in charge of a S.E., who is responsible for execution and management of works, within his Circle.
1.14. Division.- (a) The executive unit of the Department is the Division in charge of an E.E., who is responsible for execution and management of works, within his Division. (b) The Divisional Officer, as a primary disbursing officer of the Division, shall be responsible for all financial transactions of the whole Division and for the proper maintenance of accounts.
He is further required to submit his accounts to the Accountant General every month by a fixed date for audit and incorporation in the general accounts. He is also responsible to ensure that the accounts of his Division are not allowed to fall into arrears.
1.015. Sub-Division.-The Division is divided into Sub- Divisions. Each Sub-Division shall be in charge of an Assistant Engineer, who has cleared the prescribed accounts examination. The Sub-Divisional Officer is responsible to the E.E. for management and execution of works, within his Sub- Division.
1.016. Section.-A Sub-Division is divided into Sections under charge of Sub-Engineers, who shall be responsible for the management and execution of works, in their respective Sections. The Sections, their limits and headquarters will be fixed by the E.E. No Sub-Engineer shall be given charge of a Section unless he has undergone the prescribed training 20 programme or has cleared the Accounts examination.
40. As per the Public Works Department Manual Appendix 1.26 and 1.27, it is clear that when an Asstt. Engineer works in the office and discharges the work of Survey and investigation of projects/schemes, expenditure on any work to check ground levels and layout before start of work check measurements and classification of soils, proper quality control in all items of work, arrangement of men and material, inspect and ensure that necessary action/repairs are carried out, maintain site order book, prepare final bills of contractors, submits monthly accounts to Division Office, keep control and watch over departmental labour, maintain accounts and other registers, see the muster rolls, keep stock of materials, take due precautions for care, custody and upkeep of stores in his charge, to ensure that material at site are properly cared, carries out the physical verification of stores, machinery tools and plants etc. carry out surprise checks of important items of stores etc. Whereas when Asstt. Engineer works in the field and discharges his duties as per Appendix 1.27 of P.W.D. Manual, then he is known as Sub-Division Officer. Furthermore, as per the Rules, there is no separate post like Sub- Divisional Officer and in fact Asstt. Engineer is also known as S.D.O. depending on the nature of work to be discharged by him.
41. Thus, it is clear that Asstt. Engineer (P.W.D.) and Sub-Divisional Officer is one and the same post.
42. The impugned show cause notice dated 9-7-2010 was issued by S.D.O. (P.W.D.) who was Asstt. Engineer also. Merely because instead of mentioning the designation as Asstt. Engineer, the designation S.D.O. (P.W.D.) was mentioned, this Court is of the considered opinion that the 21 officer shall not be stripped off his powers under Section 248 of M.P.L.R. Code, which were conferred by a notification issued under Section 24 of M.P.L.R. Code.
43. Thus, the impugned show cause notice dated 9-7-2010 was issued by a competent authority. Therefore, this question is also answered against the Petitioner.
Whether order dated 16-7-2010 was passed in accordance with law or not?
44. As already pointed out, the Petitioner has not challenged the order dated 16-7-2010 passed by respondent no.6. It was claimed by the Counsel for the Petitioner, that at the time of filing of the writ petition, the petitioner was not aware of the order dated 16-7-2010, however, in connected W.P. No.7667 of 2010, the respondents had filed the copy of the order dated 16-7-2010 along with their return. The return was filed on 22-6-2011 and the copy of the return was received by the Counsel for the Petitioner on 21-6-2011. The Counsel for the Petitioner in both the cases is same. Thus, it is clear that the Petitioner had come to know about the order dated 16-7-2010, when he received the copy of the same along with the return filed in W.P. No.7667 of 2010, but still the petitioner did not amend the writ petition, and did not seek quashment of the said order.
45. Furthermore, when this Court has already come to a conclusion that neither the petitioner has locus standi to file the writ petition, nor the show cause notice dated 9-7-2010 was issued by an incompetent authority, then in absence of any challenge to order dated 16-7-2010, this Court cannot look into the correctness of the order dated 16-7-2010.
46. Since, the deity is the owner of the Survey No.2613, and the 22 petitioner has no locus standi to file the petition, therefore, this Court is of the considered opinion, that deity through its next friend can always challenge the order dated 16-7-2010 by filing an appeal. This liberty can always be extended in the light of Order 1 Rule 10(2) CPC.
47. Therefore, by extending the liberty to the deity to challenge the action of the respondents, the present petition is dismissed as not maintainable.
(G.S. AHLUWALIA) JUDGE ARUN KUMAR MISHRA 2022.08.23 15:00:20 +05'30'