Uttarakhand High Court
Sri Ganga Mandir And Others. ... vs State Of Uttarakhand And Others on 5 August, 2019
Equivalent citations: AIRONLINE 2019 UTR 591, (2019) 3 UC 1947
Author: Alok Kumar Verma
Bench: Ramesh Ranganathan, Alok Kumar Verma
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
WRIT PETITION (CRL) No. 1245 of 2013
Sri Ganga Mandir and others. ...Petitioners
Vs.
State of Uttarakhand and others. ...Respondents
Sri B.P. Nautiyal, learned Senior Counsel assisted by Sri D.K. Joshi, learned counsel for
the petitioners.
Mr. Pratiroop Pandey, learned AGA for the State of Uttarakhand.
Sri Piyush Garg and Sri Nikhil Singh, learned counsel for respondent no. 4.
Sri Mahavir Singh Tyagi, learned counsel for respondent no. 5.
Ms. Puja Banga, learned counsel for the HDA.
Judgment Reserved : 19.06.2019
Judgment Delivered : 05. 08.2019
Chronological list of cases referred :
1. AIR 1997 SC 1125
2. AIR 1954 SC 207
3. AIR 1952 SC 12
4. AIR 1962 SC 1044
5. (1999) 4 SCC 526
6. (2005) 3 ALD 233 (LB)
7. AIR 1971 AP 394
8. AIR 1997 AP 179
9. AIR 1954 SC 440
10. AIR 1971 AP 53
11. (1968) 1 ALL ER 763
12. (1969) 2 Mad LJ 1
13. Judgment in Writ Petition No. 11191 of 2014 dated 19.12.2014
14. (2006) 4 SCC 501
15. Judg. of A.P. High Court (DB) in Writ Petition No. 10602 of 2015
16. AIR 1962 SC 527
17. Judg. of the Supreme Court in C.A. No. 5460 of 2004 dated 04.04.2007
18. AIR 2004 Bom. 225
19. 2004 (5) ALD 180 (DB)
20. (1997) 1 SCC 134
21. (2005) 6 SCC 138
22. (2000) 2 SCC 617
23. (1994) 2 SCC 481
24. (1987) 4 SCC 391
25. (1989) 4 SCC 635
26. AIR 1955 SC 425
27. AIR 1988 AP 144
2
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble Alok Kumar Verma, J.
Ramesh Ranganathan, C.J.
This writ petition is filed seeking a writ of mandamus directing the Senior Superintendent of Police, Haridwar, and the Station House Officer, Police Station Kotwali, Haridwar, to provide protection to the petitioners in case of any threat or interference being caused, by the 4th respondent-Ganga Sabha - a registered society at Har Ki Pauri, Haridwar, to the life and property of the petitioners; and for a writ of mandamus directing the Ganga Sabha not to extend any threat to the life and property of the petitioners.
2. After the writ petition was filed, the Teerth Purohit Samaj filed an application to implead themselves as a respondent in the Writ Petition and, by order dated 06.03.2014, they stood impleaded as the 5th respondent. Thereafter, an application (CLMA No. 14378 of 2018) was filed by the petitioner to implead the Haridwar Development Authority as the 6th respondent in the writ petition, and the impleadment application was ordered by a Division Bench of this Court by its order dated 19.09.2018.
3. This case has a checkered history. The dispute in this writ petition revolves around a temple situated at Har Ki Pauri in Haridwar called the 'Ganga Mandir'. Even according to the petitioners themselves, as has been stated in the writ affidavit, the said temple was built by Raja Man Singh of Ajmer, Jaipur in the 16th Century, wherein the idols of Sri Ram Chandra Ji, Sita Ji, Laxman Ji, Hanuman Ji and Radha Krishna Ji were installed. The main idol is that of Ganga Ji. This temple is situated in the stream of the River 'Ganges' which forms the Har Ki Pauri.
4. The father, of the second and third petitioners, made an application in the early 1980s seeking permission, from the Executive Engineer, Uttarakhand Gang Nahar, Roorkee, for 3 renovation; and the Executive Engineer, by his proceedings dated 17.10.1985, granted his No Objection for renovation of the temple, and to strengthen its base, subject to the condition that it did not affect the flow of water in the River 'Ganges'. No further action was, however, taken pursuant thereto. The father of the second and the third petitioners, thereafter, moved an application dated 29.09.1997 before the Haridwar Development Authority (the 'HDA' for short), seeking permission for renovation of the said temple. The HDA, by its proceedings dated 22.10.1997, granted permission for renovation of the temple in terms of the application dated 29.09.1997. The petitioner was informed that no new construction should be raised at the place where the temple was constructed; the original shape of the temple should not be changed; and, before undertaking renovation work, prior permission of the Irrigation Department should be obtained. After grant of permission on 22.10.1997, the HDA issued a notice on 03.02.1998 calling upon the petitioners to show cause why the unauthorized construction being raised by them should not be stopped. On the very same day, yet another order came to be passed by the HDA under Section 27 of the U.P. Urban Planning and Development Act, 1973 directing the petitioners to stop construction on the ground that they were raising construction without permission from the HDA.
5. Thereafter, by proceedings dated 07.03.1998, the HDA called upon the father of the second and the third petitioners to show cause why the new construction raised by them should not be demolished. Aggrieved by these three orders, the first petitioner and his father invoked the jurisdiction of the Allahabad High Court by filing Civil Writ Petition No. 10219 of 1998, wherein they sought a writ of certiorari to quash the three orders; and for a writ of mandamus directing the respondents not to interfere in the completion of the renovation work of the temple, which was being carried out by the second petitioner. This writ petition came to be heard by a Division Bench of the Allahabad High Court on 23.03.1998.
46. Since the rival contentions put forth in the present case, by learned Senior Counsel and learned counsel on either side, is founded primarily on the order of the Division Bench of the Allahabad High Court, it is useful to extract the said order to the extent relevant.
".....The dispute relates to a temple which is said to have been built in the 16th century by Raja Man Singh who was a high dignitary and general in the court of the Mughal Emperor Akbar. The said temple is a national heritage of our country and hence has to be properly preserved. The allegations against the petitioners are that they are seeking to build a new temple in place of the original one, and this is destroying the very architecture of the original temple. If this is so obviously it cannot be permitted. The petitioners were granted permission to renovate the same by order dated 22-10-97 vide annexure no. 2 to the writ petition and not to build a new temple. Learned counsel for the petitioners states that he only want to renovate it and not destroy the original temple.
In the circumstances this petition is disposed of with the direction that any work done in the temple by the petitioners will be under the supervision of the archeological survey of India which shall be informed about this order within three days, and the archeological survey of India will depute some officer for this purpose. The archeological survey of India will see to it that the basic structure of the original temple shall not be destroyed by the petitioners....." (emphasis supplied)
7. In compliance with the order of the Allahabad High Court, the Deputy Superintending Archaeological Engineer and the Superintending Archaeologist, Agra Circle, Agra (employed with the Archaeological Survey of India), inspected the temple and, in the inspection report dated 10.09.1998, stated that the second petitioner had, along with his letter dated 26.03.1998, enclosed a copy of the order of the Allahabad High Court stating that the temple was not a national monument, and was in the personal management and control of the petitioners from time to time; it was their ancestral personal property, and they did not intend to change the basic temple, its utility and its usage; inspection of the temple 5 was carried out by the said team on 17.05.1998; the temple, known as Shri Ganga Mandir, was situated in the midst of the bathing ghats in the mid-stream of Brahma Kund at the celebrated Har Ki Pauri which was on the right bank of the holy River 'Ganga' in Haridwar; the said temple was not listed as a centrally protected monument; during the course of inspection, it was observed that the old style of the structure of Shri Ganga Temple had been totally concealed, and an RCC structure had been raised, over and above the temple, piercing the skyline; the temple in question, which originally was a low-height graceful structure with a domical roof and projected arched shaped balcony all around, and standing on a raised column or pier of solid stone-masonry, had now been covered with a high- rise RCC structure; and the present status of the renovation had left no scope where the Archaeological Survey of India was, in any position, to supervise and provide guidance, in accordance with the directions of the High Court, as it was now a modern structure.
8. The petitioners, thereafter, filed Civil Misc. Application No. 32587 of 1999 in Civil Writ Petition No. 10219 of 1998 requesting the Allahabad High Court to modify its order dated 23.03.1998, and permit them to complete renovation of the temple by themselves without obstruction from any external agency. While this application was still pending on the file of the Allahabad High court, the State of Uttarakhand was created on 09.11.2000 and since Haridwar, where the subject temple is located, also fell within the territorial limits of the State of Uttarakhand, Civil Misc. Application No.32587 of 1999 was transferred to the Uttarakhand High Court, and was re-numbered as Writ Petition (M/B) No. 134 of 2001. The 5th respondent herein filed Writ Petition (M/B) No. 1012 of 2003 seeking a writ of mandamus directing the respondent authorities to demolish the illegal construction made by the petitioners herein over the Raja Man Singh Ki Chhatri situated over Brahm Kund in Har Ki Pauri at Haridwar, and to put the same in its original shape and style.
69. Both Writ Petition (M/B) Nos. 134 of 2001 and 1012 of 2003 were heard together by a Division Bench of this Court, and, in its order dated 24.10.2003, the Division Bench observed that the structure in question was about 400 years old; certain work had been carried out by the petitioner; and it was not clear whether the work constituted repairs or renovation. The Division Bench directed the HDA to visit the site, ascertain whether the work done by the petitioner was a repair or a renovation, and instruct the petitioners to take steps to restore the original structure. Liberty was given to the petitioners to submit a technical report of experts to the HDA. The Division Bench observed that, if the HDA came to the conclusion that steps were required to be taken by the petitioners to restore the structure, then they were permitted to restore the structure as per the directions given by the Engineers / Experts appointed by the HDA. The Division Bench further opined that this order was being passed as the structure was 400 years old, and it might get damaged if work was done without seeking the opinion of the experts. The entire cost of restoring the structure, to its original position, was required to be borne by the petitioners; and, in case the experts appointed by the HDA were of the considered opinion that it was not possible to restore the structure, then liberty was given to the petitioners to move the Court after notice to the respondents. Both the writ petitions were, accordingly, disposed of.
10. At the petitioners request Dr. S. Mittal, Assistant Professor of the Indian Institute of Technology, Roorkee, along with Dr. K.K. Singh-Professor, Structural Engineering, Department of Civil Engineering, IIT, Roorkee, and Ms. Neeta Mittal, Architect and Assistant Director, Central Building Research Institute, Roorkee, submitted a report, in November, 2003, of the site visit to Shri Ganga Mandir, Brahmkund, Har Ki Pauri, Haridwar. The said report records that the project was sponsored by the second petitioner; the temple authorities (the petitioners), by their letter 7 dated 17.11.2003, had requested the Civil Engineering Department of IIT Roorkee to advise on the renovation work being conducted by the temple authorities, and to also suggest whether it was possible to restore the old shape of the structure; the renovation work was started by the temple authorities, prior to the 1998 Kumbh Mela, so that the structure would be safe to bear the crowd in general, and particularly during the mela; and a team, duly approved by the Dean (SRIC), IIT Roorkee, and comprising of these three officers, had thoroughly studied the old structure and the new construction work done at the site.
11. The said report further records that the walls and Shikhar of the old structure, along with the idols, were encased within the new structure; the old Shikhar was made of irregular stones set in lime mortar with stone facing; lime mortar had deteriorated as the structure was continuously damp as it was situated in the water; the Shikhar had a large irregular hole where portions had already collapsed; the supporting walls were in a worse condition than the Shikhar, and may possibly have collapsed along with the Shikhar if they were not provided support by the new construction; during the period of inspection, a number of devotees came to the temple to offer prayers; they were not allowed inside, as the old structure was not safe; they were not permitted to take a round of the Parikrama because it was unfinished, and did not have a railing; with time, all structures needed to be renovated; the structure, in question, was quite old and had deteriorated; it could have collapsed at any time, possibly causing loss of life; renovation was urgently needed before the Kumbh Mela, during which the structure would have been subjected to an even higher risk of collapse due to the lakhs of visitors to Haridwar; the temple authorities had come up with the ingenious solution of constructing a new structure to encase the old one so that the sanctity of the temple and idols was preserved, and continuity of prayers was maintained with minimum hindrance during construction; the new construction was larger in diameter 8 from the base; the Shikhar was elongated, and of a slightly bigger height than the old Shikhar which was round; the change in the size and shape of the Shikhar was unavoidable, as it was not possible to construct a new round Shikhar without demolishing the old Shikhar as its shuttering and centering could not have been provided; for renovation of the temple, strengthening of the base was necessary, as it had been underwater for many years and had become weak; this was done by enlarging the foundation base marginally, and enclosing the base of the structure within a 20 cm. thick reinforced concrete octagonal wall; this process was continued right upto the top, bearing in mind certain principles of civil engineering and architecture; and, after detailed examination of the site, it was concluded that restoration of the old structure was not possible, and the old shape could not be restored.
12. The report also states that the following points needed consideration before deciding on the further course of action, which was covered by the recommendation i.e. demolition of the new RCC construction was not possible without causing collapse of the Shikhar, and the walls of the old construction; it would also cause damage to the base of the structure; prayers at the nearby Gangadhar Mahadev Mandir would be disrupted, and there could be some damage to it also; thus, demolition stood ruled out, and the old construction and shape could not be restored; in its present state, the new structure maintained the basic elements of the old i.e. the prayer chamber (Garbha Grih) was in the original location, and its shape was the same with very minor difference in size; the Parikrama was of the same size and shape, and was in the same basic location; only the Shikhar had been elongated, instead of being circular, due to unavoidable reasons; however, this Shikhar was in the traditional shape of a majority of Shikhars of temples in various parts of the country; and it also matched well with the Shikhar of 3 or 4 temples in its immediate vicinity.
913. The three member committee recommended that, since restoration of the old structure was not possible, the exterior finishing of Sri Ganga Mandir should be completed, the material of the old deteriorated structure should be removed from inside the temple with great care; and it should be finished from inside so that there was minimum disturbance to worship. It was advised that the renovation work be completed at the earliest.
14. In terms of the order passed by the Division Bench, as afore- noted, the HDA had addressed a letter to the Central Building Research Institute, Roorkee (the "CBRI" for short) on 28.11.2003, pursuant to which an inspection was caused by the CBRI (a constituent establishment of the Central Scientific and Industrial Research Institute of the Government of India), and a report dated 18.11.2003 was submitted based on the site visits, and examination of the incomplete temple structure. The covering letter of the report states that full restoration upto foundation level (below water) was not possible; however partial restoration, maintaining the history and heritage value of the monument, could be done; and two schemes were proposed in the report.
15. The said report of the CBRI records that the new construction had been made starting right from the foundation level, and in a manner so as to provide a reinforced jacket around the old temple; eight columns, one each at the octagon, had been provided; these columns were originating from the jacket and were going upto the top level of the Chhatri; they were also having a projected chhajja of approximately 1.25m all around; the chhajja was supported on two beam elements originating from two adjacent sides of the octagon and meeting at a point; an RCC slab had also been provided at the level of the projection; and the building was reported to be in the same condition since 1998.
1016. The CBRI report, thereafter, records that the space between the eight columns above the projection level, and the next ring beam level, had been filled with brickwork; above that a thin cement concrete diaphragm cladding had been provided; there were door kind openings in this brick work; the construction stage appeared to be at the final level waiting only for finishing; and there were few reinforcement bars projected on the top of the Shikhar, the purpose of which was not known. The CBRI report concludes with the opinion that only partial restoration, upto roof projection level, was possible; and going below this level may endanger the safety of the structure. They proposed two alternatives (1) dismantling of the upper part upto projection level including the RCC slab. This would enable the old historical Chhatri (roof) to be exposed. The top surface of the Chhatri may then be repaired and provided with waterproofing treatment. (2) The pyramidical form, only upto RCC slab level, could be dismantled. Thereafter a new Chhatri parallel to the existing old Chhatri may be constructed, and dismantling upto the slab level should be relatively easier and economic also. The report opines that the second alternative appeared to be a reasonable and safe approach, which would ensure the safety of the old structure as well as maintaining the heritage value of this 400 year old monument.
17. After receipt of this CBRI report from the HDA, the petitioners forwarded a copy thereof to the three member Committee, from whom they had obtained a report earlier. In its subsequent reports dated 12.08.2004 and 11.10.2004, the very same three member Committee opined that they differed with the two proposals made in the HDA Expert's report, and were reconfirming the recommendations made by them. The original report offered the only feasible solution considering religious sanctity, the present state of the temple, and the surroundings; and they were of the opinion that the proposals of the CBRI had the following shortcomings (1) dismantling of the upper portion of temple may 11 cause damage to the lower portion, and possibly to the foundation also; (2) dismantling may cause hurt to the religious sentiments of the devotees, and affect the sanctity of the temple; (3) if any one of the proposals were implemented, then the resulting temple would be a peculiar architectural hybrid with no aesthetic appeal, and following no norms of temple architecture; and, further more, it would mar the ambience of the surroundings. The three member Committee recommended completion of the renovation of the temple at the earliest, and opined that any further delay in finishing may cause corrosion of the reinforcement and result in permanent weakness.
18. The petitioners, thereafter, filed Writ Petition (M/B) No. 1003 of 2004 before this Court seeking a writ of mandamus commanding the respondents to permit the petitioners to complete the finishing work of Ganga Temple, Har Ki Pauri, Haridar in the light of the Expert's Reports dated 17.11.2003 and 12.08.2004. While they, no doubt, referred both to the CBRI report, and the subsequent report of the three member Committee dated 12.08.2004, to contend that the CBRI report did not merit acceptance, a Division Bench of this Court, in its interim order in Writ Petition (M/B) No. 1003 of 2004 dated 30.10.2006, observed that the controversy in the writ petition involved some disputed facts regarding the nature of the structure; the dispute, according to the respondents, was that earlier there was a canopy of Raja Maan Singh; according to the petitioners, it was a temple known as Ganga Temple which had been repaired by them; and it was contended that, in the garb of repair of the temple, the petitioners had covered the old structure which could not have been covered by them. The Registrar-General of the High Court was directed to visit the temple in dispute, record the statements of the people of the locality in the presence of the learned counsel for the parties or their representatives, and give a clear cut report as to whether the temple and the old structure were independent and separate ones, or it was only an old structure which had been 12 covered in the name of a temple. The Division Bench noted that there were two separate reports of Experts; and a certified copy of both the reports should be given to the Registrar-General.
19. In compliance with the aforesaid order of the Division Bench, the Registrar-General of this High Court visited the spot on 11.11.2006 after engaging a photographer to take photographs and prepare a CD of the spot. He also recorded the statements of witnesses. He, thereafter, noted that the disputed structures were situated in the course of the water at the Har Ki Pauri; the way to the disputed structure passed through a temple known as Kora Devi temple; the old structure (Chhatri) had been covered by a new structure, and the old structure i.e. Chhatri had not been demolished; rather a new structure, in the shape of a temple, had been raised above the roof (Chhatri) of the old structure; the roof of the old structure was visible from inside the temple; at present there was only one structure in the shape of a temple which was evident from the photographs; there was a hole in the roof of the old structure which was visible from the photographs; it was not in dispute that the structure was in the possession of the petitioners; the inspection, and the statements of witnesses, made it clear that the disputed structure was only one, and the old structure and the new structure were not independent; and the old structure was covered inside the new structure. After the report was submitted by the Registrar General of this Court, Writ Petition (M/B) No. 1003 of 2004 was renumbered as Writ Petition (M/S) No. 1003 of 2007 and was, thereafter, listed before a learned Single Judge.
20. In his elaborate counter affidavit, filed therein, the Secretary, HDA stated that, in view of the order of this Court dated 06.02.2012, a spot inspection of the subject temple was made on 11.10.2012 by the Assistant Engineer and Junior Engineer of the HDA; they had submitted a report with regards the current status of the temple in which they had stated that, on inspection of the 13 temple, it was found that no construction work was being carried on; there was a room and a dome over the old temple structure on which no finishing work had been done; the petitioners had wrongly stated that the experts, appointed by the petitioners, also represented the Central Building Research Institute, Roorkee; no such information was available on record; the team of experts of the petitioners had never been authorized by the departmental Head of the IIT, Roorkee to make a spot inspection of the subject temple, and to submit any technical report; it was, therefore, not liable to be taken into consideration by the HDA; they were not aware of the expert team appointed by the petitioners which had come to their knowledge only subsequent to the filing of the present writ petition; as no technical report was received from the petitioners, pursuant to the order dated 24.10.2003 in the previous writ petition, the HDA had, by its letter dated 10.11.2003, requested the Director, Central Building Research Institute, Roorkee (CBRI) that a technical report was required with regards the ancient Ganga temple, with the historical Chhatri of Raja Man Singh, situated at Brahmkund, Har Ki Pauri, and the construction being carried out therein; they had requested him to have an inspection of the site caused by experts, so that restoration and renovation of the temple could be made; the Director, CBRI had appointed and authorized the Joint Director of CBRI-Sri B.S. Gupta to make an inspection of the temple, and give his expert and scientific opinion on the question of renovation and restoration of the temple; till that time no technical report had been submitted by the petitioners to them; HDA had sent a letter to the petitioners on 15.11.2003 informing them that the CBRI expert would be making a spot inspection of the temple, and they should be present at the site when the inspection was made; the petitioners had, by letter dated 17.11.2003, expressed their willingness to be present at the site at the time of inspection; the temple and Raja Man Singh's Chhatri were inspected in the presence of the Mela Adhikari, the Engineer of the Development Authority, and the 14 petitioners on 18.11.2003 and 25.11.2003; and Sri B.S. Gupta gave his expert opinion by way of a report thereafter.
21. After referring to the two alternatives suggested in the CBRI expert's report, it is stated, in the counter affidavit of the HDA, that a copy thereof was sent to the petitioner; prior to the said report, the petitioner had not appointed any expert, nor had taken any technical or scientific opinion from any other expert; he had concealed this material fact, and had tried to mislead this Court; the report of the CBRI, and the opinion therein, was liable to be adhered to, and the renovation and restoration of the temple should be carried out in accordance with the report; the HDA, by its letter dated 19.06.2004, had apprised the petitioners to commence the work of restoration and renovation of the said temple in accordance with the CBRI expert report; the opinion of the experts of the petitioner could not be accepted, as they were not authorized by the IIT, Rookee to give the same; the expert opinion of the CBRI was given, after making a detailed inspection of the spot, and having observed the same at some length; and the said report was also binding on the petitioner.
22. As noted hereinabove, Writ Petition (M/B) No. 1003 of 2004 was renumbered as Writ Petition (M/S) No. 1554 of 2007. Though an elaborate counter affidavit had been filed by the HDA, along with several enclosures thereto, Writ Petition (M/S) No.1554 of 2007 was disposed of by a cryptic order of the learned Single Judge dated 10.12.2012. In the said order, the learned Single Judge recorded that the petitioners had approached the Court seeking protection so that they could continue with the repair work of the pucca structure called 'Ganga Temple' at Har Ki Pauri, Haridwar; and the structure was an old one. The learned Single Judge directed the HDA to examine the nature of the works undertaken by the petitioners and held that, if the nature of the work did not require any permission, the petitioners could continue and complete the work in terms of the three-Member Expert Committee's report; if 15 the nature of the work undertaken by the petitioners was to be examined by the HDA requiring any permission, such a request should be considered taking note of the Expert Committee's report; this should, ordinarily, not be withheld; this should be concluded within a period of two months from the date; and, in the event, no action was taken by the HDA, it would be open to the petitioners to complete the finishing work in terms of the Expert Committee's report.
23. While the appellant-writ petitioner had, no doubt, placed two reports of the three-Member Committee consisting of two Professors of the IIT, Roorkee and one Assistant Director, Central Building Research Institute, Roorkee, dated 17.11.2003 and 12.08.2004, the HDA had also placed on record, along with their counter affidavit, the report of the CBRI dated 18.12.2003. The learned Single Judge, however, has not referred to the contents of the report of the CBRI, or to the specific averments made in the counter affidavit filed by the HDA. While the order, no doubt, refers to the report of the three-Member Expert Committee, it does not disclose why the three-Member Expert Committee, whose report the petitioners had secured, should be accepted though the CBRI report obtained by the HDA provided to the contrary. The fact, however, remains that the said order of the learned Single Judge continues to remain in force as on date.
24. The 4th respondent herein preferred a review petition against the aforesaid order passed by the learned Single Judge by way of MCC No. 46 of 2013 in CLMA No. 1538 of 2013 in Writ Petition (M/S) No. 1554 of 2007; and both the review application, and the application to condone the delay in filing the review application, were dismissed, for non-prosecution, by order dated 03.05.2013. The 4th respondent herein, thereafter, filed Special Appeal No. 518 of 2013 against the order passed by the learned Single Judge dated 10.12.2012.
1625. Pursuant to the aforesaid order passed by the learned Single Judge, the Secretary, HDA, by his letter dated 04.02.2013, informed the petitioners that, in compliance with the order of the High Court in Writ Petition (M/S) No. 1554 of 2007 dated 10.12.2012, they should carry on necessary work pursuant to the three-Member Expert Committee's report dated 17.11.2003; and, if they executed the work contrary to the report, it would amount to contempt of court, and they should act accordingly.
26. The petitioners herein, thereafter, filed the present writ petition i.e. Writ Petition (Criminal) No. 1245 of 2013. Both Writ Petition (Criminal) No.1245 of 2013 and Special Appeal No. 518 of 2013 were heard by a Division Bench on the same day, and separate orders were passed on the same day, i.e. on 13.07.2017.
27. In its order, in Writ Petition (Criminal No. 1245 of 2013 dated 13.07.2017, the Division Bench observed that it had come out in the reply that the petitioners had been served with a demolition order dated 03.02.1998; thereafter, a show cause notice was also issued on 09.03.1998; the petitioners had concealed this fact from the Court by filing the present writ petition; the writ petition suffered from the vice of suppressio veri; the petitioners had not come before the Court with clean hands; a very vital fact, that the statutory authority had already ordered for demolition of the structure, had not been disclosed in the writ petition; and it had also come on record that till date neither the order dated 03.02.1998, nor the order dated 09.03.1998, had been assailed. The Division Bench expressed displeasure on the manner in which the writ petition was filed, and the affidavit was sworn. Holding that the remedy under Article 226 of the Constitution of India was discretionary, the Division Bench dismissed the writ petition with costs of Rs. 25,000/-.
28. In its order in Special Appeal No. 518 of 2013 dated 13.07.2017, the Division Bench observed that it had come on record 17 that the statutory authority i.e. the HDA had accorded permission to the Raja Man Singh Ki Chhatri on 04.02.2013; and, in view thereof, the appellant was permitted to assail the permission order dated 04.02.2013 in accordance with law. In other words, the appellant was relegated to avail the alternative statutory remedy under the U.P. Urban Planning and Development Act, 1973. With these observations, the Special Appeal was disposed of.
29. Aggrieved by the order passed by the Division Bench, in Writ Petition (Criminal) No. 1245 of 2013 dated 13.07.2017, the petitioners preferred Criminal Appeal No. 1981 of 2017 and, in its order dated 17.11.2017, the Supreme Court noted that the Division Bench of this Court had, by its order dated 13.07.2017, dismissed the writ petition on the ground of suppression of material information concerning the demolition order dated 03.02.1998, and the show cause notice issued on 09.03.1998; the High Court had also observed that, till date, neither the demolition order dated 03.02.1998, nor the show cause notice dated 09.03.1998, issued by the HDA had been assailed by the petitioners; it was brought to their notice that the petitioners' had pleaded before the High Court, and had placed certain court orders and other material to show their bonafides, and had negated the contention of suppression before the High Court; it was clear that the show cause notice dated 03.02.1998 was challenged before the Allahabad High Court in Civil Writ Petition No. 10219 of 1998; and, taking into consideration the said facts and circumstances, the High Court had erred in dismissing the writ petition without taking into consideration the pleadings, and the orders, placed before it by the petitioners. The order passed by the Division Bench was set aside, and the matter was remanded to this Court for appropriate adjudication of the case on merits. It is pursuant thereto that the present writ petition is now listed before us.
1830. To complete the narration of facts, it must also be noted that the 4th respondent had filed Review Application (MCC No. 441 of 2019) seeking review of the order passed by the Division Bench in Special Appeal No. 518 of 2013 dated 13.07.2017, along with an application to condone the delay of 648 days in preferring the review application. Since the review application is required to be listed before a Division Bench, of which Justice Sharad Sharma is a Member, it has not been listed before us.
31. Sri B.P. Nautiyal, learned Senior Counsel appearing on behalf of the petitioners, would submit that since the Division Bench had, by its order in Special Appeal No. 518 of 2013 dated 13.07.2017, permitted the 4th respondent herein to assail the order passed by the HDA dated 04.02.2013 in appropriate legal proceedings, it was always open to them to question the said order; without questioning the validity of the order of the HDA dated 04.02.2013 in appropriate legal proceedings, the 4th respondent had, instead, sought to prevent the petitioners from proceeding with the construction; since the petitioners intend to carry out construction strictly in terms of the letter of the HDA dated 04.02.2013, and it is respondents 4 & 5 who are seeking to prevent them from doing so, they are entitled for police protection to enable them to raise construction strictly in terms of the letter of the HDA dated 04.02.2013; and since respondents 2 and 3 were not providing them police protection, they had necessarily to invoke the jurisdiction of this Court seeking a mandamus to respondents 2 and 3 to do so.
32. Sri B.P. Nautiyal, learned Senior Counsel, would submit that, since the order of the learned Single Judge in Writ Petition (M/S) No. 1554 of 2007 dated 10.12.2012 has attained finality, and the Special Appeal preferred against the said order of the learned Single Judge was disposed of by the Division Bench relegating the 4th respondent herein to question the letter of the HDA dated 04.02.2013, the said order of the learned Single Judge dated 19 10.12.2012 is binding on the 4th respondent also; in preventing the petitioners from making construction, in terms of the order of the HDA dated 04.02.2013 and in compliance with the order of this Court in Writ Petition (M/S) No. 1554 of 2007 dated 10.12.2012, respondents 4 and 5 had, in fact, violated the order of this Court; their action may well amount to Contempt of Court; and the petitioners should be granted police protection to enable them to raise construction strictly in accordance with the order passed by the Secretary, HDA dated 04.02.2013.
33. Sri B.P. Nautiyal, learned Senior Counsel, would further state that respondents 4 & 5 were seeking to confuse the issue by bringing extraneous matters into the picture; it is the petitioners who have invoked the jurisdiction of this Court by way of the present writ petition, and not respondents 4 &5; and the scope of inquiry, in such a writ petition, should therefore be confined only to the question whether or not the petitioners are entitled for police protection, and nothing more.
34. On the other hand Sri M.S. Tyagi, learned counsel appearing for the 5th respondent and Sri Piyush Garg, learned counsel appearing for the 4th respondent, would submit that the proceedings of the HDA dated 04.02.2013 is not in compliance with the order passed by the learned Single Judge in Writ Petition (M/S) No. 1554 of 2007 dated 10.12.2012, whereby the Secretary, HDA was required to examine the nature of the works undertaken by the petitioners; it is only if the nature of the work did not require any permission, was the petitioner entitled to continue and complete the work in terms of the three-Member Committee's report; if, on the other hand, the nature of work undertaken by the petitioners was to be examined by the HDA requiring any permission, the same should have been considered taking note of the Expert Committee's report; the order of the Secretary, HDA dated 04.02.2013, on which the petitioners place reliance upon, does not even state whether or not 20 the petitioner required permission to complete the works; the said order dated 04.02.2013 of the HDA proceeds on the erroneous premise that the Secretary, HDA was only required to permit the petitioners to complete the work in terms of the three-Member expert Committee report; reliance placed by the petitioners, on the letter of the Secretary, HDA dated 04.02.2013, in seeking police protection from this Court, is wholly misplaced; while it is no doubt true that it is the petitioners who have invoked the jurisdiction of this Court, and not respondents 4 & 5 herein, the jurisdiction exercised by this Court is discretionary; the petitioners have abused the process of the Court and have violated its earlier orders; no indulgence should, therefore, be shown to the petitioners, since, instead of renovating the temple and retaining its original form, they have raised a new structure giving a complete go-by to the external original form of the old structure; this Court should, therefore, refrain from interference, and not come to the aid of the petitioners; the earlier orders, passed by both the Division Bench of the Allahabad High Court and the Division Bench of this Court, required the petitioners only to renovate the existing temple, as it was a 400 year old structure constructed by Raja Man Singh; the dome of the temple is popularly known as 'Raja Man Singh Ji Ki Chhatri'; the earlier orders of the Allahabad High Court, and of this Court, had taken note of these facts, and had held that the structure should be preserved by renovation or by construction; the petitioners have, on the other hand, raised a structure all around the previous structure except at the entry point of the Garbh Grih; they had also raised a structure above the Chhatri (dome) by constructing another dome which is spiral in shape; as a result 'Raja Man Singh Ji Ki Chhatri' is no longer visible from outside; no specific permission has been granted by the HDA to raise such a construction though any new construction, even that of a temple, requires permission from them; the petitioners are not entitled to renovate or raise construction on their own, without obtaining 21 approval from the HDA to raise such a construction; and since the proceedings dated 04.02.2013, passed by the Secretary, HDA, does not speak of any permission having been granted, no reliance can be placed thereupon by the petitioners herein in seeking protection from this Court.
35. Learned counsel for respondents 4 and 5 would further state that the order of the learned Single Judge, in Writ Petition (M/S) No. 1554 of 2007 dated 10.12.2012, has not attained finality for two reasons. Firstly because the 4th respondent has already filed a petition seeking review of the said order; secondly the said order has been modified by the order of the Division Bench, in Special Appeal No. 518 of 2013 dated 13.07.2017, permitting respondents 4 and 5 herein to question the subsequent order passed by the Secretary, HDA dated 04.02.2013 under the Urban Planning and Development Act, 1973; even otherwise, the 5th respondent herein was not a party to Writ Petition (M/S) No. 1554 of 2007; consequently the order passed therein on 10.12.2012 would not bind the 5th respondent; the petitioners cannot, in any event, seek any protection against the 5th respondent; since no remedy is available to them under the U.P. Urban Planning and Development Act, 1973, the Division Bench, in its order in Special Appeal No. 518 of 2013 dated 13.07.2017, had erred in relegating them to avail the remedy under the said Act; and it is in this context that the 4th respondent had sought review of the order passed in Special Appeal No. 518 of 2013 dated 13.07.2017.
36. Article 226 is a part of the basic structure of the Constitution of India (L. Chandra Kumar Vs. Union of India[1]), and the power conferred on the High Court thereunder cannot be negated or circumscribed even by an amendment to the Constitution, much less by legislation - plenary or subordinate. Article 226 of the Constitution confers on the High Court wide powers in issuing writs for the enforcement of any of the rights conferred by Part III of the 22 Constitution, and for any other purpose. Under the first part of Article 226 of the Constitution, a writ would be issued only after holding that the aggrieved party has a fundamental right, and that it has been infringed. Under the second part, a writ may be issued only after finding that the aggrieved party has a legal right, and that such a right has been infringed. (K.S. Rashid Vs. Income-tax Investigation Commissioner[2]; State of Orissa Vs. Madan Gopal Rungta[3]; The Calcutta Gas Co. (Proprietary) Ltd Vs. State of West Bengal and others[4]; K. Venkatachalam Vs. A. Swamickan and another[5];
B.A. Bhavani Vs. LAO, Yeluru Reservoir Project,
Peddapuram[6]).
37. The words "any other purpose" in Article 226 brings within its ambit the enforcement of any legally enforceable right. (Satyanarayana Tiwari Vs. S.H.O.P.S. Santoshanagar, Hyderabad and Others[7]). Article 226 of the Constitution is a storehouse or a reservoir of justice, equity and good conscience which are meant, within the discretionary power of the Court vested by that Article, to render justice. (Hon'ble Secretary and Correspondent, Badruka College of Commerce and Arts (Day), Hyderabad Vs. State of Andhra Pradesh and another[8]). The High Court, in issuing directions, orders and writs under Article 226, can travel beyond the contents of the writs which are normally issued, provided the broad and fundamental principles that regulate the exercise of jurisdiction, in the grant of such writs, are not transgressed. Article 226 empowers the High Court to grant appropriate relief, and also to modify the form of the relief according to the exigencies of each case, without being obsessed by the limitations of prerogative writs. There can be no higher purpose than the enforcement of orders of the High Court whereby the rights of a party are either confirmed or recognized. The power of the High Court under Article 226 of the Constitution of India, to enforce its own orders, cannot be curtailed. (Satyanarayana Tiwari[7]; The Calcutta Gas Company (Prop) Ltd.[4]; T.C. Basappa Vs. T. Nagappa[9]).
2338. In the absence of an express provision for enforcement of its orders, it is not only proper but also necessary that Courts should render all aid to the aggrieved party to enable him to derive the full benefits of the order. While the aggrieved party can himself approach the police authorities seeking their assistance for enforcement of the order, there is no reason why, when the same person brings to the notice of the Court that enforcement of the order is sought to be prevented or obstructed, the Court should not exercise its inherent power and direct the police authorities to render all aid to the aggrieved party in the implementation of the court order. The court has ample jurisdiction to exercise such powers, and pass such orders as are necessary to meet the ends of justice and to prevent abuse of its process, and the police officers are bound to obey such directions, (Rayapati Audemma Vs. Pothineni Narasimham[10];
Satyanarayana Tiwari[7]), as it is their duty to ensure that the orders of the High Court are not only faithfully enforced but also that all persons, seeking enforcement of such orders, are given the required assistance and protection. (Satyanarayana Tiwari[7]). The law enforcement officers owe a legal duty to the public to perform those functions which are the raison d'être of their existence. These legal duties include the duty to enforce the law. In these matters, they are not the servant of anyone, save of the law itself. The responsibility for law enforcement lies on them, and they are answerable to the law and to the law alone. (Rayapati Audemma[10]; R. Vs. Commissioner of Police of the Metropolis Ex P. Blackburn (No.1)[11]; Varadachariar Vs. Commr. of Police[12]).
39. Citizens are entitled to seek directions under Article 226 whereunder the High Court has ample jurisdiction, to issue a writ or direction to the authorities, including the police within the State, to enforce the order of Courts and maintain the rule of law. (Hindustan Petroleum Corporation Limited Vs. The Government of A.P.[13]; Satyanarayana Tiwari[7]; Commissioner of Police of the 24 Metropolis Ex P. Blackburn (No.1)[11]; Rayapati Audemma[10]; P.R. Muralidharan and others Vs. Swamy Dharmananda Theertha Padar and others[14]). Police officers are duty bound to render assistance in implementation of the orders of Court, and can be directed to discharge their legal duty of ensuring compliance with court orders. (Kotak Mahindra Bank Ltd. Vs. Station House Officer[15]).
40. The Court is under an obligation to accord police protection to ensure obedience of its orders. Unless this is done, the rule of law will not prevail and judicial orders would not be effectively implemented. (P.R. Muralidharan[14]). Courts have inherent powers to pass orders to meet the ends of justice or to prevent the abuse of the process of the Court. (Manohar Lal Chopra Vs. Seth Hiralal[16]; Kotak Mahindra Bank Ltd.[15]). When parties act in violation of the order, the Court can, by exercising its inherent power, give appropriate directions to the police authority to render aid to the aggrieved parties for the due and proper implementation of the orders passed by the Court. (Kotak Mahindra Bank Ltd.[15]).
41. The High Court can be approached for issuance of a writ on the plea that a party has not obeyed an order of injunction, or that he was deliberately flouting that order and, inspite of the petitioner applying for it, the police authorities were not giving him the needed protection in terms of the order passed by a court of competent jurisdiction. (P.R. Murlidharan[14]). In the event of the police failing or refusing to carry out their duty, the court would not be powerless to intervene, and an order of mandamus would issue. (Commissioner of Police of the Metropolis Ex P. Blackburn (No.1)[11]). Mandamus is a very wide remedy which is available against public officers to ensure that they discharge their public duty. Once the party, who applies for a mandamus, shows that he has sufficient interest to be protected, and there is no other equally convenient remedy, the remedy of a 25 mandamus is available. (Commissioner of Police of the Metropolis Ex P. Blackburn (No.1)[11]).
42. While an order, directing police aid, can always be passed to ensure compliance of orders of Court, the question which necessitates examination is whether the petitioners are merely seeking implementation of a Court order or, by way of this Writ Petition, want something more. In his order, in Writ Petition (M/S) No.1554 of 2007 dated 10.12.2012, (implementation of which is allegedly sought in the present writ proceedings), the learned Single Judge noted that the petitioners had approached the Court seeking protection so that they could continue with the repair work of the pucca structure called 'Ganga Temple' at Har Ki Pauri, Haridwar; and the structure was an old one. While directing the Haridwar Development Authority to examine the nature of the works undertaken by the petitioners, the learned Single Judge observed that, if the nature of the work did not require any permission, the petitioners could continue and complete the work in terms of the three- Member Expert Committee's report; and if the nature of the work, undertaken by the petitioners, was to be examined by the HDA requiring any permission, such a request should be considered taking note of the Expert Committee's report.
43. The HDA, no doubt, took action and passed an order dated 04.02.2013 informing the petitioners that they should carry on necessary work in compliance with the order of the High Court in Writ Petition (M/S) No.1554 of 2007 dated 10.12.2012, pursuant to the three- Member Expert Committee's report dated 17.11.2003. Though the order of the learned Single Judge, in Writ Petition (M/S) No.1554 of 2007 dated 10.12.2012, required them to examine the nature of the work undertaken by the petitioners, and whether the said work required permission or not, the said order of the HDA dated 04.02.2013 makes no reference to any such exercise having been undertaken by them before according permission.
2644. Yet another aspect which must be borne in mind, while examining the petitioners' claim for grant of police aid, is that both the order of the Division Bench of the Allahabad High Court in Civil Writ Petition Nos.10219 of 1998 dated 23.03.1998, and the order passed by a Division Bench of this Court in Writ Petition (M/S) Nos.134 of 2001 and 1012 of 2003 dated 24.10.2003, have attained finality. The Division Bench of the Allahabad High Court, in its order in Civil Writ Petition Nos.10219 of 1998 dated 23.03.1998, has taken note of the fact that the dispute related to a temple which is said to have been built in the 16th century by Raja Man Singh who was a high dignitary and a General in the Court of the Mughal Emperor Akbar; the temple was a national heritage, and had to be properly preserved; and if the allegations against the petitioners were true, that they were seeking to build a new temple in the place of the original one and were destroying the very architecture of the original temple, it could not be permitted. The petitioners were granted permission to renovate the temple and not to build a new temple. The petitioners' contention, that they only wanted to renovate it and not to destroy the original temple, was noted by the Division Bench while disposing of the Writ Petition.
45. The fact, however, remains that the petitioners had, even before institution and during the pendency of the said Writ Petition before the Allahabad High Court, raised a new structure completely encasing the old structure, and had thereby changed the entire architecture of the Ganga Mata temple. While the earlier structure had a dome shaped roof called the "Raja Man Singh Ki Chattri", the present structure is one which is described as a 'spire' in texts on temple architecture. While requesting the Archeological Survey of India to inspect the temple (in terms of the order of the Division Bench of the Allahabad High Court), the petitioners had, in their letter dated 26.03.1998, informed them that the temple was not a national monument, it was their ancestral property, and they did not intend to change the basic temple, its utility and its usage. A team of two officers, of the 27 Archaeological Survey of India, caused an inspection of the temple on 17.05.1998 and observed that the old type of the structure of Shri Ganga Temple had been totally concealed, and an RCC structure had been raised, over and above the temple, piercing the skyline; and the temple which originally was a low-height graceful structure with a domical roof, with a projected arched shaped balcony all around, and standing on a raised column or pier of solid stone-masonry, had now been covered with a high-rise RCC structure.
46. While the petitioners filed an application seeking permission to complete renovation of the temple by themselves, without obstruction from any external agency, the fifth respondent herein filed Writ Petition (M/B) No.1012 of 2003 seeking demolition of the illegal construction raised by the petitioners over the Raja Man Singh Ki Chhatri, and to put the same in its original shape and style. In its order, in Writ Petition (M/B) Nos.134 of 2001 and 1012 of 2003 dated 24.10.2003, a Division Bench of this Court had observed that the structure in question was about 400 year old. The HDA was directed to visit the site and ascertain whether the work done by the petitioners was a repair or a renovation, and to instruct the petitioners to take steps to restore the original structure. The Division Bench opined that the order passed by it was because the structure was 400 years old, and may get damaged if work was done without seeking the opinion of experts.
47. While reliance is placed by the petitioners on the report of a three-Member Committee to contend that the structure cannot be restored, the CBRI report dated 17.11.2003, submitted at the request of the HDA, had opined that partial restoration of the monument was possible. The CBRI report suggested dismantling of the upper part upto projection level including the RCC slab; the old historical Chhatri (roof) to be exposed; and the top surface of the Chhatri to then be repaired and provided with waterproofing treatment. The second alternative, suggested by the CBRI, was for dismantling the 28 pyramidical form upto the RCC slab level; and thereafter a new Chhatri, parallel to the existing old Chhatri, to be constructed as that would ensure the safety of the old structure as well as maintaining the heritage value of this 400 years old monument.
48. In its order in Writ Petition (M/B) Nos.134 of 2001 and 1012 of 2003 dated 24.10.2003, the Division Bench had granted liberty to the petitioners to move the Court only in case the experts appointed by the HDA were of the view that it was not possible to restore the structure. As the CBRI had, in its report to the HDA, suggested measures for restoration of the four hundred years old structure to its original shape, the petitioners were not even entitled to file a modification petition.
49. In its interim order in Writ Petition (M/B) No.1003 of 2004 dated 30.10.2006 (i.e. the modification application) a Division Bench of this Court had observed that the respondents had contended that, in the garb of repair of the temple, the petitioners had covered the old structure which could not have been covered by them. The Registrar General of the High Court wad directed to visit the subject temple, and give a report whether the temple and the old structure were independent and separate, or it was only the old structure which had been covered in the name of a temple. In his report, the Registrar General informed the Division Bench that the old structure (Chhatri) had been covered by a new structure; a new structure, in the shape of a temple, had been raised above the roof (Chhatri) of the old structure; and the old structure was covered inside the new structure.
50. Though the aforesaid order of the Division Bench of the Allahabad High Court in Civil Writ Petition No. 10219 of 1998 dated 23.03.1998, and the order passed by a Division Bench of this Court in Writ Petition (M/B) Nos.134 of 2001 and 1012 of 2003 dated 24.10.2003, required them to restore the original temple, the petitioners have, under the guise of seeking permission for restoration and to carry out repairs, built a new structure, thereby encasing the 29 famous Raja Man Singh Ki Chattri with a structure which can be called a spire. What the petitioners have done is to construct a structure all around the old temple except the Garbha Grih, to raise a spire above the earlier dome shaped root, and thereby completely hide the Raja Man Singh Ki Chattri i.e. "the dome" from public gaze. The erstwhile dome shaped roof of the temple is no longer visible from outside, as it is covered all around and a structure in the shape of a spire has been raised over the earlier dome shaped canopy.
51. The order of the learned Single Judge, in Writ Petition (M/S) No.1554 of 2007 dated 10.12.2012, makes no reference to the earlier orders of the Division Bench of the Allahabad High Court, and the Division Bench of this Court, or to the fact that both these orders had attained finality. While the petitioners had sought a mandamus, in Writ Petition (M/B) No.1003 of 2004 (renumbered as Writ Petition (M/S) No.1554 of 2007), to permit them to complete the finishing work of the temple in the light of the three-Member committee's report dated 17.11.2003 and 12.08.2004, which was at variance with the CBRI report dated 18.11.2003, the learned Single Judge has not dealt with the contents of any of the reports in his order dated 10.12.2012; and has merely passed a cryptic order directing the Haridwar Development Authority as aforementioned. Even worse is that the Haridwar Development Authority did not even abide by such directions.
52. While it is true that the order of the learned Single Judge in Writ Petition (M/S) No.1554 of 2007 dated 10.12.2012 has attained finality, the fact also remains that the said order of the learned Single Judge was passed in ignorance of the earlier two Division Bench judgments which have also attained finality. In examining the petitioners claim for police protection, we cannot, while referring to the order passed by the learned Single Judge in Writ Petition (M/S) No.1554 of 2007 dated 10.12.2012, ignore the orders passed by the Division Bench of the Allahabad High Court in Civil Writ Petition 30 No.10219 of 1998 dated 23.03.1998 and the order of the Division Bench of this Court in Writ Petition (M/B) Nos.134 of 2001 and 1012 of 2003 dated 24.10.2003, more so as the order of the learned Single Judge falls foul of both these orders.
53. As noted hereinabove, the objection of the Ganga Sabha and the fifth respondent is to the construction by the petitioners of a spire shaped structure above Ganga Mandir in the place of the earlier dome shaped roof which existed for more than 400 years, and was popularly known as the 'Raja Man Singh Ki Chhatri', While an order for police protection can always be granted to comply with orders of the Court, no such order should be passed where police protection is sought to complete construction contrary to the earlier orders of two Division Benches, one of the Allahabad High Court, and the other of this Court. The plenary powers of the High Court, under Article 226 of the Constitution, are subject to certain self-imposed limitations. Ordinarily, a writ of mandamus would be issued against public authorities discharging public functions or where the functions of the respondents are referable to a statute, which a fortiorari would mean that, save and except for good reasons, the High Court would, ordinarily, not entertain a writ petition for matters in the private law realm. (Mohan M. Baselois Marthoma Vs. State of Kerala[17]). A person may be entitled to police protection having regard to the threat perception to his life and liberty, or for protection of rights declared by an order passed by a Court, and if the Court is satisfied that the authorities have failed to perform their duties. There would be no such entitlement for protection of the petitioner's rights (to property or to an office or for discharging of certain functions) when his right is itself open to question. (P.R. Muralidharan[14]).
54. Proceedings seeking a writ of mandamus, directing the police authorities to give protection to the petitioner, cannot be made a forum for adjudicating civil rights. The temptation to grant relief, in cases where a writ of mandamus is sought for protection in respect of 31 property, status or right which remain to be adjudicated upon, should be resisted by the High Court. The wide jurisdiction, under Article 226 of the Constitution, would remain effective and meaningful only when it is exercised prudently and in appropriate situations. (P. R. Murlidharan[14]; Mohan M. Baselois Marthoma[17]).
55. It would be an abuse of the process of the Court for any person to approach the High Court, under Article 226 of the Constitution, seeking a writ of mandamus directing police officers to protect his property without first establishing his right in appropriate legal proceedings. (P.R. Murlidharan[14]). A writ for police protection, so- called, has limited application to cases where the Court is approached for protection of the rights declared by an order passed by the Court. It cannot be extended to cases where the rights have not yet been determined finally by the Court, and even then only in furtherance of the order. (P.R. Murlidharan[14]). While exercising jurisdiction under Article 226, the High Court would not, collaterally, determine disputed questions of fact. (P.R. Murlidharan[14]). This Court would not exercise jurisdiction, under Article 226 of the Constitution of India, save on a clear case, of a legal injury having been caused to the person who has invoked its jurisdiction, being made out requiring its interference. (Kotak Mahindra Bank Ltd.[15]). Though the power, which the High Court exercises under Article 226 of the Constitution, is discretionary and no limits can be placed upon the exercise of such discretion, the power must be exercised judiciously along recognised lines. (B.A. Bhavani[6]).
56. While the need for police officers to ensure compliance of, and to enforce, orders of Court cannot be over emphasised, the need for them to tread warily in such matters must also be recognised. If police officers are given a free hand, and are permitted to interpret court orders in the guise of implementing them, irreparable loss may ensue to the party which has suffered the order. While police officers are no doubt obligated to assist in implementation of orders of Court, any 32 bonafide dispute, regarding the scope and purport of the order, would require them to exercise restraint and leave it to the party, which seeks police assistance, to approach the Court and obtain necessary directions/orders in this regard. This safeguard is essential to ensure that police officers do not run amok. (Kotak Mahindra Bank Ltd.[15]). The grant of police aid is an extreme step, and therefore an order for grant of police help or police assistance cannot be made unless the Court is fully convinced about the existence of grave emergency such as apprehension of violence by the persons against whom the order has been passed. It is very difficult to give an exhaustive list of circumstances in which the Court can exercise the said power. However, the said power is to be exercised with caution and only after the Court is fully convinced of the existence of a grave situation warranting exercise of said power. (Smt. Nirabhai J. Patel Vs. Narayan D. Patil[18]).
57. The petitioner can claim to suffer a legal injury if police protection is not extended, only if they have a right to construct a spire shaped structure over the temple instead of the dome sized roof which was, admittedly, in existence for more than four hundred years. An order for police aid is not to be granted for the mere asking. Grant of such a relief, in the present case, would result in the petitioners completing construction of a spire shaped structure over the temple, instead of repairing the earlier dome shaped canopy, in violation of the two Division Bench judgments referred to hereinabove. In the guise of seeking implementation of the order passed by the learned Single Judge in Writ Petition (M/S) No.1554 of 2007 dated 10.12.2007, the petitioner cannot be permitted to flout the earlier order of the Division Bench of the Allahabad High Court in Writ Petition No.10219 of 1998 dated 23.03.1998, or of the Division Bench of this Court in Writ Petition (M/B) No. 134 of 2001 and 1012 of 2003 dated 24.10.2003.
3358. In this context it must be borne in mind that exercise of jurisdiction under Article 226 of the Constitution of India is discretionary and a Writ is not issued as of right or as a matter of course. (C.R. Reddy Law College Employees' Association, Eluru W.G. District Vs. Bar Council of India, New Delhi[19]). The discretionary jurisdiction of this Court, under Article 226 of the Constitution of India, is exercised only in furtherance of the interest of justice and in larger public interest, and not merely on a legal point being made out. The interest of justice and the public interest coalesce. They are very often one and the same. The High Court would weigh public interest vis-à-vis private interest while exercising its discretionary powers (Ramniklal N. Bhutta Vs. State of Maharashtra[20]; Manohar Lal Chopra[16]; Master Marine Services Pvt. Ltd Vs. Metcalfe and Hodgkinson Pvt Ltd[21]; Air India Ltd. Vs. Cochin International Airport Ltd.[22]), and would refrain from interference save in larger public interest. One of the principles inherent is that discretionary power should be exercised for the sake of justice and, if interference would result in greater harm to society, then this Court may refrain from exercising the power. (State of Maharashtra and others Vs. Prabhu[23]).
59. The discretionary jurisdiction, under Article 226 of the Constitution of India, must be exercised with great caution, and larger public interest must be kept in mind. (Master Marine Services Pvt. Ltd.[21]; Air India Ltd.[22]). This Court would, ordinarily, not interfere save where manifest injustice is caused (Rashpal Malhotra Vs. Mrs. Satya Rajput[24]; Council of Scientific and Industrial Research Vs. K.G.S. Bhatt[25]), even if a legal flaw might be electronically detected. (Rashpal Malhotra[24]; K.G.S. Bhatt[25]).
60. The discretionary power, under Article 226 of the Constitution of India, need not be exercised in every case where there is an error of law. One of the limitations imposed by this Court, on itself, is that it would not exercise jurisdiction unless substantial injustice has ensued 34 or is likely to ensue. It would not allow itself to be turned into a court of appeal to set right mere errors of law which do not occasion injustice. (Sangram Singh Vs. Election Tribunal, Kotah[26]). This Court will exercise its discretionary power, under Article 226 of the Constitution of India, with great caution and only in furtherance of public interest and not merely on the making out of a legal point. This Court is required to keep larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to the conclusion that overwhelming public interest requires interference, would it intervene in the matter. (Air India Limited[22]). Larger public interest would only be served if the directions issued in the earlier two Division Bench judgments are complied with; and, instead of the spiral shaped structure raised by the petitioners, the four hundred year old Raja Man Singh Ki Chhatri is restored. The petitioners seek police aid only for them to finish the spire shaped structure, and thereby completely encase the dome shaped canopy which would, in turn, result in the exterior of the Raja Man Singh Ki Chhatri not being exposed to public gaze. We see no reason, therefore, to come to the petitioners aid in completing construction of a spire shaped structure over the Ganga Mata temple or to pass an order to provide police protection only to enable them to flout the two Division Bench judgments referred to hereinabove.
61. While the matter should have, normally, ended with this Court refusing to grant the relief sought for in the Writ Petition, larger public interest would require restoration of the 'Raja Man Singh Ki Chhatri', (the four hundred years old dome shaped canopy over the Ganga Mata temple), to its architectural glory. As noted hereinabove a three member Committee, in its report submitted to the petitioners in November, 2003, had opined that restoration of the old structure was not possible. Contrary thereto the CBRI had, in its report submitted to the Haridwar Development Authority, proposed two alternatives. The first involved dismantling the upper part, upto the projection level 35 including the RCC slab, which would then have resulted in the historical "Chhatri" of the temple being exposed to public gaze; and the top surface of the Chhatri then being repaired and provided waterproofing treatment. The second alternative suggested by the CBRI was for dismantling the pyramidical tower upto the RCC slab level; and, thereafter, for a new chhatri, parallel to the existing old Chhatri, to be constructed.
62. The justification put forth by the three member Committee (from whom the petitioners had sought a report), for differing with the proposal made by the CBRI, is that of religious sanctity, the present state of the temple, and the surroundings; dismantling of the upper portion of temple may cause damage to the lower portion, and possibly to the foundation also; such dismantling may cause hurt to the religious sentiments of the devotees, and affect the sanctity of the temple; implementation of the proposals would result in the temple being rendered a peculiar architectural hybrid with no aesthetic appeal, and following no norms of temple architecture; and it would mar the ambience of the surroundings.
63. The very fact that respondent nos.4 and 5 also seek restoration of the famous 'Raja Man Singh Ki Chhatri' would belie the opinion of the three member Committee that the alternatives suggested by the CBRI would hurt religious sentiments. The alternatives suggested by the CBRI in its report would enable the dome shaped roof of the temple to be preserved, and the architectural grandeur of the 'Raja Man Singh Ki Chhatri' to be restored. As the dome shaped roof has been in existence for over four hundred years, it is difficult to accept the opinion of the three member Committee that it would mar the ambience of its surroundings. Adhering to the CBRI report would also ensure compliance with the earlier two Division Bench judgments of the Allahabad High Court and this Court, which only permitted the petitioners to renovate the temple protecting its architectural grandeur.
3664. Both the reports of the three member Expert Committee and that of the CBRI, were prepared more than 15 years ago. It may not be appropriate for us, therefore, to now rely on the said reports without ascertaining the condition of the structure as at present. The High Court, while exercising jurisdiction under Article 226 of the Constitution, has the power to mould the relief taking into account the totality of the circumstances and the exigencies of the situation. (Dhronamraju Satyanarayana Vs. N.T. Rama Rao and others[27]; Kotak Mahindra Bank Ltd.[15]). Since larger public interest would be served only if the architectural grandeur of the four hundred years old 'Raja Man Singh Ki Chhatri' is restored, preserved and protected, we consider it appropriate to mould the relief sought for in the Writ Petition.
65. We, accordingly, direct the Haridwar Development Authority, in consultation with the Archeological Survey of India, the CBRI and the Director, IIT, Roorkee, to constitute an expert committee to determine the stability of the structure, and examine the feasibility of restoration of the historical 'Raja Man Singh Ki Chhatri' or, in the alternative, for construction of a new dome shaped roof, largely, identical to the historic 'Raja Man Singh Ki Chhatri' of the Ganga Mata Temple.
66. Since the objections of respondent nos.4 and 5 is only regarding the change in the shape of the shikar of the temple, and they also desire that the ancient and historical dome shaped roof of the Ganga Mata Temple, called the 'Raja Man Singh Ki Chhatri', be restored, suffice it to make it clear that in case the petitioners, on the basis of the report of the expert-Committee to be constituted by the HDA, are willing to restore the dome shaped roof of the temple, to the form in which it existed earlier, the respondents police officials shall then provide the petitioners necessary protection to ensure that no hindrance is caused for the restoration of the temple Shikar, to its 37 original dome shape, after dismantling the spire shaped structure raised by the petitioners over it.
67. The Writ Petition is, accordingly, disposed of. However, in the circumstances, without costs.
(Alok Kumar Verma, J.) (Ramesh Ranganathan, C.J.) 05.08.2019 05.08.2019 Rahul