Himachal Pradesh High Court
Raj Nand vs State Of H.P. & Others on 28 June, 2016
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
CWP No.1606 of 2013
Date of decision: 28.06.2016
.
Raj Nand ..Petitioner
Versus
State of H.P. & others . Respondents
Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge
of
Whether approved for reporting?
For the petitioner: Mr.G.K. Nadda, Advocate vice Mr.Ajay Kumar
rt Dhiman, Advocate.
For the respondents: Mr.Shrawan Dogra, Advocate General, with
Mr.Anup Rattan & Mr. Romesh Verma, Additional
Advocate Generals and Mr.Kush Sharma, Deputy
Advocate General, for respondents No.1 to 4.
Mr.J.L. Bhardwaj, Advocate, for respondent No.5.
________________________________________________________________________
Mansoor Ahmad Mir, Chief Justice (oral)
Delinked from CWP No.1382 of 2008.
2. Mr.Romesh Verma, learned Additional Advocate General, stated that the petitioner has questioned the notification dated 31st August, 2012, on the grounds taken in the writ petition and the petitioner has no locus standi to challenge the said notification, by the medium of the writ petition. It is apt to reproduce the notification herein:
"Government of Himachal Pradesh Language Arts & Culture Department No.LCD-F(1)-15/2011 Dated Shimla-2, the 31-08-2012 Notification In partial modification of this Department notification of even number dated 11-04-2012, the Governor, Himachal Pradesh is pleased to re-insert "Dei Shahiba Thakurdwara Mandir," Paonta Sahib, District Sirmour in Schedule-I of Himachal Pradesh Hindu ::: Downloaded on - 15/04/2017 20:42:22 :::HCHP 2 Public Religious Institutions and Charitable Endowments Act, 1984, with immediate effect in the public interest.
By order
Manisha Nanda
Chief Commissioner (Temples)-cum-
Principal Secretary (LAC) to the Govt. of
.
Himachal Pradesh."
3. Respondents have filed the reply and have stated that the writ petition is not maintainable. It is profitable to reproduce para 1 of the reply on preliminary submissions and of paras 4, 6 and 12 of the reply on merits herein.
"1. That the Civil writ petition challenging the notification dated 31.08.2012 is not maintainable in view of various orders passed by rt this Hon'ble Court in CWP No.1382 of 2008 titled as Sirmaur Vichar Manch Versus State of HP & others which is still pending adjudication before this Hon'ble Court. The Hon'ble Court is seized of the matter pertaining to the property owned by Thakurdwara Dei Ji Sahiba Temple, Paonta Sahib in the aforesaid writ petition and therefore, the prayer pertaining to quashing the notification dated 31.08.2012 deserves to be rejected for which the replying respondents humbly pray.
4. That the contents of this para of the writ petition so far managing the property by the father of the petitioner till his death is concerned is not disputed. It is also not disputed that the petitioner succeeded as Pujari. However, it is wrong to submit by the petitioner that the Deputy Commissioner, District Sirmour acted under his undefended executive powers to appoint a committee of certain local persons to manage the properties of the temple. The contention of the petitioner that he was appointed as a paid pujari of the temple is wrong. In this connection it is submitted that petitioner was a temple trustee and was entitled to 25% of the offering income of the temple only. It is true that the petitioner had filed the suit in the court of Ld. Sub-Judge, Paonta Sahib, District Sirmour, HP, therein claiming the relief for passing decree of declaration that the petitioner is entitled Seva Pooja and manage the affairs of Mandir Dei Ji Sahiba, Paonta Sahib and its property and the state of Himachal Pradesh has no right to form the committee to manage the affairs and resume the superintendence ::: Downloaded on - 15/04/2017 20:42:22 :::HCHP 3 of the Mandir Dei Ji Sahiba and that the committee and its decision consisting of the defendants Nos. 4 to 12 in the said suit are nullity and void and not binding on the petitioner who is the Mahant of the temple. However, it is wrong to aver by the petitioner that the said suit was decreed to the extent that the Deputy Commissioner had .
no powers or authority to take over the management of the temple from the petitioner and it was ordered that the management of the temple should be handed over to the petitioner. Whereas the relief granted to the petitioner was to the effect that the defendants, some of them are the respondents in the present proceedings, were restrained from dispossessing the petitioner who is held to be of a Sehbait and Pujari with limited powers to possess the property. It is submitted that the property of the temple was encroached only for the reason that it was not properly fenced and now as per the rt orders passed by this Hon'ble Court from time to time in the writ petition, the reference of which has been given in the preliminary objections, the entire property of the temple has been demarcated and the eviction orders have been passed by the competent authority exercising the powers under the Himachal Pradesh Public Premises (Eviction and Land Recovery) Act, 1971. Total 192 cases of encroachments were filed against the encroachers out of which in 44 cases the encroachments have been removed and land has been taken into the possession of Temple Trust.
Remaining 148 encroachment cases, the aggrieved parties have approached the appellate authority i.e. Divisional Commissioner, Shimla Division Shimla, HP and the stay in all 148 cases has been granted by the Appellate authority. The proper action as per due course of law is being taken by the authority. Therefore, it is wrong to aver that the Deputy Commissioner did not take any action to stop encroachments.
6. That the contents of this para of the writ petition are wrong, incorrect and hence denied. It is without any basis to aver by the petitioner that the temple in question was included in the Schedule just to frustrate the judgment passed by the Ld. Civil Court. The temple in question was included in the schedule after adopting al the necessary formalities required in that behalf. The official and non-official members have been appointed to look after the management of the temple as per the provisions of the Himachal Pradesh Hindu Public Religious Institutions and Charitable Endowments Act, 1984. It is however, wrong to submit by the ::: Downloaded on - 15/04/2017 20:42:22 :::HCHP 4 petitioner that non-official trustees always belonged mostly to the political parties which control the government of the day and the trust for all practical purpose becomes a political arena. It is wrong to submit by the petitioner that the trustees have continued to be appointed on political considerations and connections and the main .
purpose of including the temple in the schedule of the Act, stands frustrated. It is true that the petitioner was held entitled to 25% of the gross income of the temple as per decision of the Temple Trust taken in its meeting held on 23-01-1990. However, it was also decided in the meeting of the Trust held on 20-08-1990 that sale proceeds of any moveable and immovable property of the Temple of would not be included in the income of the Temple. However, it is submitted that the petitioner never raised demand for the said 25% of the share of the income only for the reason that he knew that the rt income of the temple is very meager. In some of the years, the total offering to the deity is in few thousands and after 05-05-2008 when the offerings were counted on 19-09-2011, total offerings were counted Rs.7,195/-, and thereafter when offerings were counted on 24-01-2012 and 21-12-2013, the offerings were counted Rs.4270/- and Rs.725/- respectively. The petitioner himself admitted that the income of the temple by way of offerings by the devotees is very small. Where as the petitioner is claiming that he is entitled for 25% of the total offerings of the Temple, it is pertinent to mention here that the petitioner has already been paid Rs.2,00,000/- as advance out of the above mentioned share vide Cheque No.0021681 dated 11-8-1990 and Cheque No.02963 dated 27-02-1991. Meaning thereby the petitioner has already been paid excess to his share owing to the meager income of the Temple.
12. That the contents of this para of the writ petition are admitted being matter of record. From the perusal of the order, it is crystal clear that the court was of the view that once the matter was pending adjudication before this Hon'ble Court, the least which was required to bring the facts to the notice of the Cabinet as well as the Cabinet sub-committee by the concerned officials and after receipt of the orders passed by the Hon'ble Court on 2.8.2012, the respondents No.1 with all promptitude has issued the notification, thereby re-inserting the temple in the schedule after perusal of all the records including the orders passed by the Hon'ble Court in the writ petition bearing CWP No.1382 of 2008."::: Downloaded on - 15/04/2017 20:42:22 :::HCHP 5
4. We have gone through the notification supra. It appears that the notification has been issued by the .
Government, in terms of the order passed by this Court on 2.8.2012 in CWP No. 1382 of 2008. It is the prerogative of the Government to place any temple in the Schedule. The Government has examined the record and other attending of circumstances read with the orders passed by this Court. Thus, the petitioner has no locus to challenge the notification. The rt petitioner has also not questioned the order dated 2.8.2012 passed in CWP No. 1382 of 2008, which has attained the finality.
5. Keeping in view the discussion made hereinabove and the reply filed by the respondents, the writ petition merits to be dismissed and is accordingly dismissed as such alongwith pending applications, if any.
( Mansoor Ahmad Mir )
Chief Justice
June 28, 2016. ( Tarlok Singh Chauhan )
(cm Thakur) Judge
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