Himachal Pradesh High Court
Mandir Committee (Adhoc) vs Chain Sukh & Others on 24 December, 2015
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
.
CWP No. 4824 of 2009
Date of Decision : December 24 , 2015
Mandir Committee (Adhoc),
Mata Bhuvneshwari Jagannathi Temple Bekhali,
Tehsil & Distt. Kullu, H.P. ...Petitioner
of
Versus
Chain Sukh & others ... Respondents
Coram:
rt
The Hon'ble Mr. Justice Sanjay Karol, Judge.
Whether approved for reporting? Yes. 1
For the petitioner : Mr. Ajay Mohan Goel, Advocate, for the
petitioner.
For the respondent : Mr. O. P. Sharma, Senior Advocate with Mr.
Naveen K. Dass, Advocate, for respondent
No. 1.
Mr. R. S. Verma, Addl. Advocate General
for respondents No. 2 to 4.
Sanjay Karol, J. (Oral)
It is not in dispute that the Management and affairs of Mata Bhuvneshwari Jagannathi Temple Bekhali, are governed and regulated in terms of Wajib-ul-arz (Annexure P-3) which reads as under:-
Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 19:35:39 :::HCHP 2
"Copy of Bajibularj of Kothi Sari, Tehsil Kullu, District Kangra, Masmula Missal Hakimat 1948-49:
.
1. Mujarian Devta: Malkan deity has been declared owner of the land and itself act as Mujanima. Mujarian of deity are of two types. Firstly Mujarian on self service i.e. Kardar, Pujari-Prohit, Musician. They are given some land at concessional rent in lieu of their service to the of deity. Kardar is appointed after giving due preference to their heredity. Pujari have normally their ancestral right. If they do some misconduct in their work, they can be rt terminated and other person from their family who is able to work, is appointed as Pujari. If it is not possible then the person is appointed on the concusses of the people to whom the deity belongs. Gur-Chala is not a ancestral post and is appointed by the deity itself or who can work properly. His work is to play deity. In case of misconduct he can be terminated. Musicians are normally servants and time to play the music is fixed. If deity goes out of the temple, these people have to follow the deity. Persons who offer flower to the deity daily or on function are also there. In our Kothi Devi Bhekhali is the deity of the whole Kothi. The above mentioned persons i.e. Kardar, Pujari, Gur-Chela can be terminated on above stated misconduct and public has a right to do so. From their side an application is moved. New persons is to be appointed on consensus basis and it is to be on the heredity basis if he is ::: Downloaded on - 15/04/2017 19:35:39 :::HCHP 3 eligible. The Kardar is appointed by the state. These servants are to be given land in lieu of their services, .
which is they can mortgage and they cannot sell.
Second type of Mujarian are those who gives Lagan in cash or as Gala to the deity in the temple these Mujarian are for few or many years. Till they pay Lagan, they cannot be evicted from the land according to of custom their Mujarian is on heredity basis. And the land can be mortgage for many years as per custom. As per general custom the Mujarian loose to work on voluntary rt basis. When the new house of repair of old house is to be made, it is their duty they are given food in Dhar. All the persons who works, the food is provided. When deity is to brought outside the temple these people use to follow in and food is provided for them."
[Emphasis supplied]
2. That the private parties; followers of the deity and the local residents (Mujarian) are governed by Wajib-ul-
arz is not in dispute. Though rebuttable, there is presumption with regard to the entries made in the Wajib-ul-arz. This question is no longer res interga in view of law laid down by the apex Court in Raja Rajinder Chand vs. Mst. Sukhi & others, AIR 1957 SC 286 as also this Court in Khekh Ram vs. Yub Raj, 1998(2) Shim. L.C. 472 and RSA No. 81 of 1979, titled as Ludar Chand vs. Ramu & another, decided on 11.01.1991.
::: Downloaded on - 15/04/2017 19:35:39 :::HCHP 43. It is so provided in the Wajib-ul-arz, that services of the Kardar can be terminated on the ground of misconduct. Public has .
right to do so. However, they are required to initiate the process by way of an application. New Kardar can be appointed only on the basis of consensus and subject to eligibility, on hereditary basis.
However, appointment of the Kardar is to be done by the State.
of Wajib-ul-arz prescribes the advantages and the benefits attached to the office of the Kardar.
rt
4. Though it is contended by the petitioner that there are more, however, it is not in dispute that at least one of the Hariyans i.e. the followers, made out a grievance of misconduct against the sitting Kardar (respondent No. 1) of the temple. As per inquiry report (Annexure P-5), the Sub Divisional Officer (C), Kullu found the allegations of misappropriation of property to be well founded.
Resultantly certain recommendations were made for the management of the affairs of the temple. It is not in dispute that the inquiry report stood supplied to the private respondent who also filed response thereto (Annexure P-6) and after hearing the parties/all concerned, the District Collector-cum-Deputy Commissioner Kullu, District Kullu vide order dated 24.8.2009 (Annexure P-7) removed him as the Kardar and directed initiation of ::: Downloaded on - 15/04/2017 19:35:39 :::HCHP 5 process for the selection of new Kardar in accordance with the procedure laid down in the Wajib-ul-arz.
.
5. Order dated 24.8.2009 came to be appealed by the private respondent under Section 14 of the H.P. Land Revenue Act, 1954 (hereinafter referred to as the Act) and the Divisional Commissioner, Mandi Division, Mandi, H.P., vide impugned order of dated 30.10.2009 (Annexure P-9), by reversing the order passed by the District Collector, Kullu, remanded the matter back for rt consideration afresh.
6. The question which needs to be considered is as to whether the Divisional Commissioner had the authority/jurisdiction to decide the appeal filed by the private respondent.
7. Section 14 of the Act reads as under:
"14. Appeals. - Save as otherwise provided by this Act, an appeal shall lie from original or appellate order of a Revenue Officer as follows, namely: -
(a) to the collector when the order is made by an Assistant Collector of either grade;
(b) to the Commissioner when the order is made by a Collector;
(c) to the Financial Commissioner when the order is made by a Commissioner;
(i) when an original order is confirmed on first appeal, a further appeal shall not lie;::: Downloaded on - 15/04/2017 19:35:39 :::HCHP 6
(ii) when any such order is modified or reversed on appeal by the Collector, the order made by the Commissioner on .
further appeal, if any, to him shall be final."
[Emphasis supplied]
8. What needs to be considered is as to whether the order passed by the District Collector was in the capacity of a Revenue Officer or not.
of
9. The Act was enacted to amend and declare the Land Revenue Law of the State of Himachal Pradesh.
rt
10. Sub-section (17) of Section 4 of the Act defines the "Revenue Officer" to mean a person having authority to act under the Act and discharge functions that of a Revenue Officer. Since the Deputy Commissioner had no jurisdiction or authority, nor was he exercising his powers under the Act, no appeal against his order could have lied under the provisions of Section 14 of the Act.
11. The nomenclature, be it Deputy Commissioner or District Collector would not make any difference for the order was certainly not passed under the provisions of the Act.
12. Noticeably the management of the affairs of the temple are not governed under the provisions of the Act. Hence impugned order, being without any authority or jurisdiction cannot be said to be legal.
::: Downloaded on - 15/04/2017 19:35:39 :::HCHP 713. In this view of the matter, impugned order dated 30.10.2009 (Annexure P-9) is quashed and set aside.
.
14. At this stage it is contended that the right of the private respondent to assail the order dated 24.8.2009 (Annexure P-7) cannot be foreclosed; grievance made out in CMP No. 12263 of 2015 requires adjudication before the appropriate forum; and in any of event, Committee set up on adhoc basis cannot be allowed to continue to discharge functions of the Kardar in perpetuity. To this rt extent grievance made is genuine.
15. As such, present petition is disposed of in the following terms:-
(i) Impugned order dated 30.10.2009 (Annexure P-9) passed by Divisional Commissioner, Mandi Division, Mandi, H.P. in Case No. 171/09, titled as Chain Sukh vs. The President Adhoc Mandir Committee, Mata Bhuvneshwari, Jagarnathi Mandir Bhekhli, is quashed and set aside;
(ii) The State is directed to forthwith initiate steps for appointing a new Kardar in accordance with law. It stands clarified that the appointment shall be made strictly in terms of the Wajib-ul-arz of the area, which ::: Downloaded on - 15/04/2017 19:35:39 :::HCHP 8 undisputedly binds the parties and the followers of the deity/Hariyans; and .
(iii) Liberty is reserved to Sh. Chain Sukh (private respondent No. 1) to assail order dated 24.8.2009 (Annexure P-7) passed by the District Collector-cum-
Deputy Commissioner Kullu District at Kullu in Case No. of 1 of 2009, as also the issues raised in CMP No. 12263 of 2015, before the appropriate forum, in accordance with rt law, if so required and desired.
Petition stands disposed of accordingly, so also the pending applications, if any.
Copy dasti.
(Sanjay Karol), Judge.
December 24 , 2015 (PK)
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