Allahabad High Court
Baba Kinaram Aghorepith Ramshala vs State Of U.P. And Ors. on 29 March, 2007
Equivalent citations: 2007(78)AWC2445
Author: S.N. Srivastava
Bench: S.N. Srivastava
JUDGMENT S.N. Srivastava, J.
1. Relief sought in the petition in hand is for quashment of order dated 8.3.1994 (Annexure-14 to the writ petition) passed by Additional Commissioner, Varanasi Division, Varanasi arrayed as respondent No. 2 and also the order dated 20.12.1991 passed by Chief Revenue officer Varanasi (Annexure-12 to the writ petition) besides challenge to the vires of Section 2 and other relevant Section of Act No. 3 of 1986 in so far as it confers Judicial power of appeal on Commissioner (the executive Head) being ultra vires Article 50 of the Constitution of India.
2. Baba Kinaram Aghorepith Ramshala Ramgarh Pargana Barrah district Varanasi claims itself to be a religious and charitable endowment and the land forming part of the Math is also claimed to have been dedicated by several persons of the locality for public religious and charitable purposes. The holding consisting in the Math comprises school, its building, temple and Samadhi, residential cottage for disciples, and the place of religious and public importance like Tank, Mela, Lolarakchath and Bhuidhara. Upon receiving notice the text of which was that certain land of petitioner Math is liable to be declared as surplus, objections were filed by petitioner founded on the ground that since it was a religious and charitable endowment, it is fully covered by Section 6 of the Act and further that no land consisting in the Math could be declared as surplus. It would appear from the record that in the ultimate analysis, the Prescribed Authority vide its order dated 20.9.1991, pronounced the decision declaring certain land as surplus. Appeal preferred against the impugned order came to be transferred to 4th Additional District and Sessions Judge Varanasi and this appeal also culminated in being dismissed vide order dated 23.2.1977. Thereafter, the matter travelled to this Court by filing Writ Petition No. 3060 of 1977 and by means of order dated 22.1.1987, this Court allowed the writ petition, quashed the impugned judgments and relegated the matter to the prescribed authority directing to determine the claim of the petitioner strictly in accordance with law regard being had to observations embodied in the judgment. The order of the Court is annexed to the petition as Annexure-10. It would further appear from the record that in the second inning, the Prescribed Authority in the ultimate analysis declared 63.93 acres of land of the petitioner situated in villages Bairath, Khetarpala, Raiyya, Mehmoodpur, Palia, Auravan, Sonbarsa, Ramgarh, Taiyya falling within Tahsil Sakladiha district Varanasi as surplus. Against the said order, an appeal was preferred before the appellate authority, i.e., Commissioner as in the meantime, Section 13 of the U.P. Act No. 3 of 1986 by which judicial power of deciding the appeal vested in the District Judge was halved off from the District Judge and instead it was conferred on Commissioner. Upon appeal being instituted before the Commissioner, it came to be transferred to Additional Commissioner who dismissed the same holding that provisions of Section 6F were not attracted for application to the present case.
3. Learned Counsel for the petitioner argued at prolix length canvassing the intra vires of U.P. Act No. 3 of 1986 besides canvassing arguments on the validity of the impugned judgment and orders. I have also heard learned standing counsel at considerable length.
4. The first ground pressed into service by the learned Counsel for the petitioner is that the provisions of U.P. Act No. 3 of 1986 conferring Judicial power of appeal on Commissioner which earlier vested on the District Judge is ultra vires to the Constitution of India arguing further that Constitution of India postulates complete separation of judiciary from Executive and the judicial power which was earlier conferred by the Legislature on District Judge to exercise appellate power against the order passed by Prescribed Authority was erroneously taken away in flagrant antagonism of basic structure of the Constitution of India. He also argued that separation of judiciary from executive has been posited as one of the basic structure of the Constitution and by this reckoning, proceeds the submission, the subsequent enactment by enacting U.P. Act No. 3 of 1986 militates against the basic structure of the Constitution of India. The learned Counsel also canvassed that by this amendment, the petitioner was deprived of getting justice from the members of State Judiciary. He further canvassed that the case is fully covered by Section 6F of the Act and petitioner Math which is a public religious and charitable endowment, the income accruing from the land was utilized for public religious and charitable purposes on running the Math beneficiary of which is the public at large. The attention of the Court has also been drawn to the fact that the petitioner Math is also running a recognized Intermediate College and other schools which impart education to the children and thus subserving the public purpose. The learned Counsel also adverted attention to the fact that notices were issued to the petitioner Math under the Agricultural Income Tax Act and in the proceeding, verdict has already come that petitioner Math is a religious and charitable endowment and consequently, the notices were discharged. The learned Counsel also launched into a fierce polemic urging that oral as well as documentary evidence of the petitioner was not considered at all either by the Prescribed Authority or by the appellate authority attended with further submission that petitioner's objection was not accepted on the ground alone that in the statement of account, the statement was kept for income and expenditure from 1949 to 1977 and in all these years in one ledger book, deficit was shown for certain years. The other ground urged is that a part of the income was used for purchasing horses and elephants for Math, which according to the view of the authorities below, could not be treated to be religious and charitable purposes. Per contra, learned standing counsel contended that State Legislatures are competent to enact the U.P. Act No. 3 of 1986 and power was rightly taken away from the District Judge and conferred on the Commissioner citing the instance of meandering procedures and massive delay entailed in disposal of cases in the courts of law. He further justified the competence of the State Legislature to enact the law. The learned standing counsel also contended that Article 50 of the Constitution is a part of Chapter IV of the Constitution of India and thus it is not enforceable. Coming to finding recorded by the Prescribed Authority and also the appellate authority the learned standing counsel submitted that finding of the authorities that petitioner Math is not a religious and charitable endowment is persuasively correct and consistent with the weight of evidence on record. And thus the same are liable to be affirmed.
5. I have considered the arguments advanced across the bar by the learned Counsel for the parties.
6. Petitioner is a Math and has staked claim to exemption under Section 6(1)(f) of the Act. A glance through the provision of Section 6(1)(f) of the Act would manifest that the Legislature has envisaged certain exemptions. Section 6(1)(f) being germane to the controversy involved in this petition is quoted below:
(f) land held from before the first day of May, 1959. by or under a public religious or charitable waqf, trust, endowment, or institution, the income from which is wholly utilized for religious or charitable purposes, and not being a waqf, trust or endowment of which the beneficiaries wholly or partly are settlers or members of his family or his descendants.
7. It is envisaged in the aforesaid provision that the land held from before the 1st date of May, 1959 by or under a Public Religious or Charitable waqf, trust endowments or institution, the income from which is wholly utilized for religious and charitable purposes and not being the wakf trust or endowment which the beneficiary wholly or partly are settlers or members of his family or his descendants. The petitioner has adverted attention to number of documents with a view to bring home the point that Math Babu Kina Ram is a Math of Aghorepeeth sect. It is further clear rather brooks no dispute that beneficiaries of this Math are not the settlers or members of the family or descendants who donated their property for the Math. The only ground set out for rejection of the case of the petitioner is that the account maintained by the Math is for a period spanning 29 years running into 29 pages and further deficit has been shown for a period spanning 22 years and in the year 1957, certain amount was invested for purchasing elephants and horses. In this connection it is worthy of notice that neither the Prescribed Authority nor the appellate authority have bestowed their attention on the fact that the land in dispute vested in the Math was being used for public purposes or charitable purposes. It was brought to the notice of the Court by various annexures filed in the writ petition that it was proved from the oral and documentary evidence that the entire land and its income is used for religious and charitable purposes, i.e., for the services of faqeers and Saints and for service of the cattle and other religious functions and for imparting instructions to the disciples and students through a number of educational institutions. Annexures-3, 4, 5 and 6 are the oral statements of the witnesses in which it was deposed that the income out of which expenditure was incurred was derived from the land and on this basis, submission was advanced that all these oral evidence was altogether eschewed from consideration. It is further clear that initially the prescribed authority issued notices for declaring the land under Agricultural Income Tax Act but ultimately exemption was granted under Section 8 of the said Act reckoning the Math as charitable and religious institution. Again attention was drawn to Annexure 9, which is a report of Naib Tahsildar and forms part of the record. It shows that the land in dispute consists of samadhi, temple, wall, dharamshala. Inter College etc. from which it is also clear that Math in dispute is established for charitable and religious purposes. It is further clear that this Court while remanding the matter to the Prescribed Authority directed to determine the claim of the petitioner strictly in accordance with law in view of observations embodied in the judgment. The judgment of this Court passed in Writ Petition No. 3060 of 1997 directing to re-determine the surplus area of the Math made certain observations and directed the Prescribed Authority to consider the materials on record. From a perusal of the order of the Prescribed Authority it is further clear that the Prescribed Authority has not reckoned with any of the materials and instead rejected the accounts solely on the ground that elephants and horses were purchased in 1957 and expenditure incurred in the last 22 years excludes the income. It is worthy of notice that Kumbh is organized at Allahabad every 12 years and most of the akharas converge to Allahabad with all panoply attended with elephants and horses and thus it forms part of their tradition/religious rights to maintain elephants and horses, to hold various functions and to look after and maintain Math and its property which is the old tradition of Math of Aghor Panth and a part of the religious rights and the only ground on which the entire claim of the petitioner as religious and charitable establishment was rejected is unsustainable in law.
8. In view of discussions, it leaves no manner of doubt that the authorities below should not have rejected the claims of the petitioner without considering the relevant materials on record including oral and documentary evidence. This Court having considered the materials on record and the controversy involved in the petitioner details of which have been discussed above, converges to the view that the petitioner is a religious and charitable trust of Aghor panth, one of the sects of Hinduism and the finding that the Math was not charitable and religious trust and thus is not entitled to get benefit flowing from Section 6(1)(f) of the U.P. Imposition of Ceiling on Land Holdings Act is unsustainable in law and it is held that the Math is a religious and charitable trust entitled to get benefits flowing from Section 6(1)(f) of the Act. Thus, the above judgment passed by the Prescribed Authority and also the appellate authorities are unsustainable in law.
9. In so far as vires of U.P. Act No. 3 of 1986 is concerned, the petitioner has relied upon a decision of this Court in 2006 RD 268 and urged that the said amendment was against the basic structure of Constitution and is thus violative of Article 50 of the Constitution. Since a special appeal has been filed against the said decision which is still pending, this Court is not inclined to decide this question in this case and the same shall be decided in appropriate case.
10. In view of discussions made above, the writ petition is allowed and the impugned orders passed by the Prescribed Authority dated 20.12.1991 as well as the appellate authority dated 8.3.1994 being unsustainable are accordingly quashed. The notices issued declaring surplus land shall stand discharged.