Gujarat High Court
Vishwa Hindu Parishad vs Collector on 19 August, 2021
Author: Vineet Kothari
Bench: Vineet Kothari, Umesh A. Trivedi
C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021
VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/WRIT PETITION (PIL) NO. 180 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
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1 Whether Reporters of Local Papers may be allowed to see the Yes
judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the Yes
judgment ?
4 Whether this case involves a substantial question of law as to Yes
the interpretation of the Constitution of India or any order made
thereunder ?
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VISHWA HINDU PARISHAD
Versus
1. COLLECTOR, PALITANA
2. DEPUTY COLLECTOR
3. MAMLATDAR, PALITANA
4. KALUBHARTI GURU VITTHALBHARTI
5. SHETH ANANDJI KALYANJI TRUST
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Appearance:
MS SANGEETA PAHWA, Counsel
for THAKKAR AND PAHWA ADVOCATES(1357) for the Applicant(s) No. 1
MR KM ANTANI, Asst. Government Pleader for the Opponent(s) No. 1,2,3
MR MIHIR JOSHI, SR. Counsel
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C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021
VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
for MR ANIP A GANDHI(2268) for the Opponent(s) No. 5 Trust
MR MB PARIKH(576) for the Opponent(s) No. 4
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CORAM:HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 19/08/2021
CAV JUDGMENT
(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)
1. Vishwa Hindu Parishad through its District Vice President Shri Bharatbhai Madhubhai Rathod, Palitana has filed this Public Interest Litigation under Article 226 of the Constitution of India.
2. Upon issuance of notice to the Respondents including the later on added Respondent Nos. 4 and 5, reply Affidavit has been filed by Respondent No.5 - Sheth Anandji Kalyanji Trust to which a Rejoinder has been filed by the Petitioner. Reply has been filed with the Affidavit of Shri Shripal Rasiklal Shah, Trustee of Respondent No.5 - Trust and Rejoinder of the Petitioner with the Affidavit of Bharatbhai Madhubhai Rathod.
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3. The dispute revolves round the Management of Nilkanth Mahadev Temple (recorded as Mahadev ni Jaggya in Government records) situated at Palitana Hills/ Shetrunjay Hills which is considered to be the most pious and divine Hills by Jain community since times immemorial and besides several (about 800 plus) Jain Temples on those Hills, the said Temple of Lord Shiva (Mahadev) in question constructed by Jain Community only is within the "Gadh"
(Fort) Wall limits of the said Hills and the Respondent No.4 -
Kalubharti Guru Vitthalbharti claims himself to be a "Mahant" and he now claims to be appointed as Pujari, stay overnight there and manage the said Mahadev Temple on the Shetrunjay Hills.
4. Though this PIL Petition has been filed by Vishwa Hindu Parishad but it appears to be directed for the personal gain of Respondent No.4 - Kalubharti Guru Vitthalbharti who appears to be a self assumed Mahant/Pujari belonging to Junagadh but who seems to be interested in capturing and managing the said Nilkanth Mahadev Temple on the Shetrunjay Hills, quite contrary to Jain Page 3 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
tenets.
5. The Respondent No.5 - Sheth Anandji Kalyanji Trust is a registered Trust and was added as Respondent No.5 in this PIL Petition under the order of the court dated 22.11.2017 in Civil Application No.11578 of 2017. While Mr. Kalubharti Guru Vitthalbharti was added as Respondent No.4 vide Order dated 4.10.2017 in Civil Application No.12905 of 2017 besides the Respondent Nos. 1, 2 and 3 the Government authorities.
6. Ms. Sangeeta Pahwa, learned counsel appearing for the Petitioner has submitted before us that the said Nilkanth Mahadev Temple is outside the limit of the said Gadh and under the Agreement dated 16.3.1877 between the Palitana State as it then was represented by Thakur Saheb and Sheth Anandji Kaliyanji Pedi representing Swetamber Murti Pujak Jain Community of India, Vide Clause 9 and 10 of the said Agreement, the Temple of Mahadev was excluded from the control and management of Jain Community through its Trust and therefore, the Petitioner had Page 4 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
approached the State Government for appointment of a Mahant for the management of the said Temple on Shetrunjay Hills and also to allow the Pujari and other persons necessary to secure and maintain the said Temple to stay overnight in the said Nilkanth Mahadev Temple. The learned counsel has submitted that vide Annexure H a letter dated 22.6.2016, the Dy. Collector, Palitana had informed the Respondent No.4 - Kalubharti Guru Vitthalbharti that there was no Government Circular for appointment of any "Mahant" for the said Temple, therefore, his Application dated 18.6.2015 in this regard could not be accepted. She has further drawn the attention of the Court towards the Communication dated 25.7.2017 Annexure J written by Dy. Collector, Palitana to the Manager/Pujari of Nilkanth Mahadev Trust for not allowing the night stay by any Pujari or other persons of the said Nilkanth Temple.
7. The averments made in this PIL Petition are quoted below for ready reference in the form of scanned reproduction:
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As per the Court's order dated 4.10.2017, passed in Civil Application (for joining party) No.12905 of 2017, the Respondent No.4 is added as party Respondent :
"Kalubharti Guru Vitthalbharti Male, Aged- 28 years Residing at : Nilkanth Mahadev Temple Shetrunjay Hill, Palitana"
As per the Court's order dated 22.11.2017, passed in Civil Application (for joining party) No.11578 of 2017, the Respondent No.5 is added as party Respondent :
"Sheth Anandji Kalyanji Trust A Registered Religious Trust Through its Authorized Trustee Shri Shripal Rasiklal Shah Office at : 25, Vasant Kunj, New Sharda Mandir Road, Paldi, Ahmedabad-380 007"Page 7 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021
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8. Aggrieved by these communications, the Petitioner Vishwa Hindu Parishad, at District level has approached this Court by way of this Public Interest Litigation Petition with the aforesaid prayers.
However, it appears to be a local office bearer's petition. The Central body or the State level office of VHP has authorised him or not to file such a PIL in this Court is not established by the Petitioner and it is highly doubtful that he has any such authorisation on behalf of the VHP India level Hindu Organisation to file this PIL Petition to actually serve the cause of an individual Respondent No.4 -
Kalubharti Vittalbharti.
9. Mr. M.B.Parikh, learned counsel for Respondent No.4 Mr. Kalubharti Guru Vitthalbharti has submitted that the said Mahant Kalubharti Guru Vitthalbharti could be appointed as Mahant for managing the said Temple of Lord Shiva. He has also drawn attention of the Court towards the Letter dated 6.3.2017 Annexure-I of Dy. Collector, Palitana in reference for appointment of Manager and Pujari of Mahant Shri Kalubharti Guru Vitthalbharti. The said letter was addressed to Mr. Shailesh Mehta, Advocate of Mr. Page 19 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
Kalubharti Guru Vitthalbharti. Respondent No.4 has not filed any Reply or Affidavit in support of Writ Petition in this PIL Petition.
10. On the other hand, learned senior counsel for the Respondent No.5 - Sheth Anandji Kalyanji Trust Mr. Mihir Joshi has vehemently opposed all the submissions made on behalf of the petitioner and also Respondent No.4 and submitted that since times immemorial besides several Jain Temples on the said entire Hill known as Shetrunjay Hill or Palitana Hills from its Talheti (Bottom) to Top which belongs to Jain Community as would be clear from Documentary evidence discussed herein after and even though some Non-Jain Temples including the said Mahadev Temple also existed on the said Hills from those times including one Ingarshah Pir but there is no dispute about the ownership of the Hills and overarching rights of the Jain Community represented by Respondent No.5 -
Trust to manage all these Temples including non-Jain Temples under the Agreement between the State of Palitana and Jain Community dated 16.3.1877 which Document is not in dispute from either side.
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11. Drawing the attention of the Court towards the all Clauses of the said Agreement dated 16.3.1877, particularly, Clause 2, 4, 9 and 10 of the said Agreement, Mr. Mihir Joshi, learned senior counsel submitted that there is no doubt that the said Mahadev Temple is situated within the Gadh Wall and Clause 9 of the said Agreement clearly stipulates that the Jains will have control and management of even the Non-Jain Shrines mentioned in Mr.Candy's Report including the shrine of Ingarshah Pir and excluding the Temple of Mahadev. He submitted that only the management part of the Mahadev Temple was not vested with the Jain Community and it was to be managed by the State who will appoint the Pujari of such Mahadev Temple with the concurrence of Jain Trust and whose salary will be paid by the Jain Trust only, to maintain the compliance with the Jain Tenets on the entire Hill and the Jain Community will have the overarching right to prescribe all reasonable Rules and Regulations of conduct of visitors to the Gadh, the Temples and the Tunks therein as well as the other shrines on the Hill but such Rules and Regulations as regard the non-Jain shrines shall not interfere their due and proper worship there at.
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12. He submitted that nobody has been ever prohibited by the Jain community or by Respondent No.5 - Trust to worship at the Mahadev Temple in question and ever since 1877 the said Temple has been managed by the Pujari appointed by the State in consultation with Respondent No.5 - Trust and paid by it and Jain community only had constructed this Mahadev Temple for Hindu Karigars and Labours at the time of construction of Jain Temples and Respondent No.5 - Trust only has been managing the said Mahadev Temple also ever since till now and it is only in the year 2016-2017 when the said Respondent No.4, the self assumed Mahant Kalubharti Guru Vitthalbharti cropped up to seek for himself to be appointed as Mahant/Pujari for the said Mahadev Temple and is using all platforms to assert his right to manage the said Temple and stay there overnight, that such an issue has arisen. He submitted that the said person and his associates have caused nuisance and are damaging the Divinity of said Shatrunjay Hills which from times immemorial is being worshipped by Jain community from all nooks and corners of the world and in large numbers from within the Country and each stone or pebble and Page 22 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
every inch of the entire Hill is worshipped by believers of Jain community ever since and therefore, nobody individual or any other Trust can be allowed to disturb that sanctity or dignity of the entire Shatrunjay Hills in any manner. The pilgrims of Jain community have great and immense faith in this entire pious Hill and all Jain Temples therein. They generally go bare foot all the way up, do not even attend to the nature's call up Hill there, do not eat or drink anything or spit there and maintain absolute celibacy during such pilgrim. He submitted that only bare minimum security staff and a few of administrative staff but no Pujaris are allowed to stay overnight uphill in Jain Temple for security of valuables, ornaments and 'Murtis' of Gods for their great value for their antiquity and divine significance and to avoid any theft or desecration.
13. Mr. Mihir Joshi, learned senior counsel emphatically submitted that the said Respondent No.4 has his personal interest in the matter and therefore, this public interest Litigation is not a bonafide one, though filed on the platform of an apparently independent body viz. Vishwa Hindu Parishad through its District Page 23 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
Office bearer only.
14. He submitted that vide Register of Bombay Public Trust Act maintained for Public Trusts vide Annexure B (Page 22) of paper book, in somewhat surreptitious manner, a Trust was registered in 1965 as No.A-1176 was known as "Mahadev Ni Jagya Shatrunjay Dungar Upper Palitana" and at relevant point of time the Trustee/managers name was shown as "Hirapuri Ganeshpuri" who was only a Pujari appointed by the State Government. He submitted that the State could only appoint the Pujari for doing worship at the said Mahadev Temple situated within the 'Gadh' of the Shatrunjay Hills and this fact has been admitted in the representation of the Petitioner - Vishwa Hindu Parishad itself made by the same person viz. District Vice President Shri Bharatbhai Madhubhai Rathod in the communication dated 26.7.2017 Annexure (Page 63-64 of the paper book) addressed to the District Collector and other authorities of Palitana. Therefore, contention raised on behalf of the Petitioner by Ms. Sangeeta Pahwa in this regard is not correct.
15. The Reply Affidavit filed by Respondent No.5 - Trust is Page 24 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
quoted below in extenso as it raises various Preliminary objections to the maintainability of this PIL Petition itself and also throws light on the various historical and important facts and Documents relevant for the purpose. The same is quoted below in the scanned reproduction below:
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16. He also drew the attention of this Court towards the Maps produced with the reply and the various other Documents including the Documents Anneuxre R-4 issued by the Collector of District Bhavnagar and Annexure R-5, a Resolution No.1641 dated 16.3.1877 as stated above and on the basis of which the Agreement between the State of Palitana and the Shwetambar Murti Pujak Jain community represented by Sheth Anandji Kalyanji representing the Shwetambar Murti Pujak Jain Community of India comprising of various sects of Jains, as it then existed also prior to Independence of India was entered into on 26.5.1928. Both these Documents is of 1877 and 1928 are being reproduced as scanned Documents with there English Transcripts also (for facilitating the clear reading) are quoted herein-below in extenso.
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Typed Version (for easy readability) AGREEMENT with PALITANA STATE re: Shatrunjay Hill dated 26-5-1928 with Bombay Govt. Resolution No.1641 dated 16-3-1877.
"Agreement arrived at between His Highness the Thakore Saheb of Palitana as representing the Palitana Durbar, and Sheth Anandji Kalianji as representing the Swetamber Murti Pujak Jain Community of India.
________________ l. The Shatrunjaya hill is situate within & forms a portion of the Palitana State, subject to the limitation laid down and the rights of the Jains defined in Resolution No. 1641, dated the 16th March 1877.
2. The Jains are entitled to use, for religious purposes and purposes incidental thereto, all lands, trees, buildings and structures within the Gudh walls, and manage the said religious properties without any control or interference on the part of the Durbar, except Page 53 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
for Police purposes.
3. The Jains shall be at liberty, without any permission, to rebuild (when necessary) repair and maintain the Gadh walls, provided that in so doing they do not alter the present dimensions or situation thereof. They will however, be at liberty to raise such portion of the Gadh wall as forms part of any of the existing temples while raising the height of any such temple to the extent necessary to make the same, one of the walls of the said temple. They will further be at liberty to raise other portion of the said Gadh wall up to a maximum height of 25 feet.
4. The Jains shall manage the temples on the hill and outside the Gudh walls without any interference on the part of the Durbar.
5. The Paglas, Debris and Chhatris on the hill outside the said Gadh walls belong to the Jains as well as the Kunds. and the Visamas, subject as to the last two to the user thereof by the public and the Jains can repair them without permission.
6. The Palitana Durbar will also maintain and repair the channels (natural courses) feeding the said Kunds.
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Rasta' leading to the said Gadh from the foot of the hill, subject to the user of tho said road by the public.
8. The Palitana Durbar will maintain and repair at their cost the paths mentioned below :-
1. Mota Rasta stretching to Sripuja Tunk
2. Gehti Payag
3. Rohishala Kedi
4. Ohha Gau Rasta
5. Shetrunji river kedi.
6. Dodh gau rasta.
7. Branob Roads joining the Ohha Gau Rasta and other commencing from Rohishala road and meeting the Ohha gau Road and the Jains will have free access thereto and thereon,
9. The Jains will have control and management of the Non-Jain shrines mentioned in Mr.Candy's report including the shrine of Ingarshah Pir and excluding the temple of Mahadev. The said temple of Mahadev shall be enclosed by a wall separating it from the Gadh Wall and an independent access from outside the Gadh wall will be provided thereto. In so doing, the Bhim and Suraj Kunds will be left outside the Mahadev limits.
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rules and regulations as regards the non-Jain shrines shall not interfere with their due and proper worship thereat.
11. The line of the said Mota Rasta and the situation of the said temples, paglas, dehris, chhatris, visamas and the kunds on the hill and outside the Gadh will be marked on a map which will form part of this Agreement. The said map shall be duly identified.
12. The Palitana Durbar will not levy any duties or taxes on ornaments and jewels brought by Sheth Annndji Kalianji for the decoration of the images in the Jain temples, and this exemption will be granted on a declaration made by the Munim of Sheth Anandji Kalianji.
13. That in the case of any dispute arising out of or relating to the rights of the Jains in this Agreement mentioned and in carrying out the terms of this Agreement the ruling Prince of Palitana State would in his executive capacity on the application of the Jains in that behalf decide the matter and if the Jains feel aggrieved by any such decision, they will be entitled to approach the Agent to the Governor General who after hearing the parties will give his decision and either party will have the right to appeal therefrom to the higher authorities in due course.
14. The Palitana Durbar agrees to receive and the Jains agree to pay a fixed annual sum of Rs.sixty thousand for 35 years. This obligation will have effect from 1st of June 1928 and the first payment will be made on the 1st of June 1929 and on corresponding dates in subsequent years Page 56 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
during the said period of 35 years. In consideration of the above payment and the subsequent annual payments the Durbur agrees not to levy any further dues of any kind from the Jains on account of pilgrimage taxes. This payment includes protection malnu & c.
15. At the expiration of the said period of 35 years, either party shall be at liberty to ask for a modification of said fixed annual sum and it will rest with the British Government after hearing the parties to grant or withhold such modification. The amount of the fixed annual sum and the period during which the same shall remain in force shall be determined by the British Government at the expiration of each such period.
16. In the event of the said annual payment not being made within a month from the due date thereof the Agent to the Governor General will determine the course to be followed by the Palitana Durbar.
17. The orders of the Government of Bombay contained in their Resolution No. 183-T. Political Department dated the 5th of July 1922 and No.8, 44-1-6, Political Department, dated 25th of May 1928 and those of the Secretary of State for India conveyed as per letter No. 1281- B. dated the 9th of October 1924 from the said Government are superseded in so far as they are any part thereof are contrary to or inconsistent with this Agreement.
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this agreement.
19. The expression Durbar Means and includes the Palitana State and expression 'Jains' means and includes the Swetamber Murtipujak Jain Community of India represented by Sheth Anandji Kalianji and their successors.
20. This Agreement is produced by the parties and ratified by the Government of India.
Ratified by the Government of India this 26th day of May 1928 at Simla .
IRVIN Viceroy and Governor General, 26-5-28 Dated this 26th Day of May One Thousand nine hundred and twenty eight Simla.
Singed in our Kikabhai Premcband. Bahadursing.
presence Kastoorbhai M. Nagarsheth Thakor Saheb of Palitana C.H.Setalvad Maneklal Mansukhbbhai
Bhulabhai J. Desai. Sarabhai Dahyabhai Sheth Amratial Kalidus Pratapsinh Moholnibhai *Accredited representatives: of:.
The Jain Community of India.
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17. Mr. Mihir Joshi also submitted that vide Order dated 13.9.2017, the Dy. Collector, Palitana has already appointed one Shri Atulbhai Durlabhbhai Rathod as Pujari for the said Nilkanth Mahadev Temple and which order on record as Annexure R-16 passed on 13.9.2017 has never been challenged by the Petitioner or anybody else. He however drew our attention towards a recent order passed by learned Single Judge of this Court (Hon'ble Mr. Justice Bhargav D. Karia) on 13.10.2020 in Special Civil Application No. 12200 of 2020 Gondaliya Himatramji Hariramji versus Charity Commissioner in which inter alia prayer B was made before learned Single Judge of this Court to direct the Respondent Government authorities to appoint the same person Shri Kalubharti Guru Shri Vitthalbharti as Pujari and Manager for the said Nilkanth Mahadev Temple, which petition has however been disposed of by learned Single Judge without interfering on the merits on the ground of availability of alternative remedy to the Petitioner against the order under Section 50A of the Trust Act by way of further Appeal under Section 72 of the Trust Act. In the said Writ Petition a Scheme for management of the said Temple was also produced Page 59 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
seeking sanction of the same which has not been accepted by the learned Single Judge, relegating the Petitioner to the alternative remedy under the Act.
The order of learned Single Judge dated 13.10.2020 is also quoted below for ready reference:
"1. Heard learned advocate Ms.Sangeeta Pahwa appearing for Thakkar And Pahwa Advocates for the petitioners and learned Assistant Government Pleader Mr. Soaham Joshi for the respondent State through video conference.
2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioners have prayed for the following reliefs:
"(A) YOUR LORDSHIPS may be pleased to issue a writ of certiorari, or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 17.05.2019 passed respondent no. 1 and order dated 17.07.2019 passed by respondent no. 3 as being arbitrary, illegal, null and void. (A) YOUR LORDSHIPS may be pleased to stay the Page 60 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
implementation, operation and execution of order dated 17.05.2019 passed respondent no. 1 and order dated 17.07.2019 passed by respondent no. 3,pending the admission, hearing and final disposal of this petition;
(B) YOUR LORDSHIPS may be pleased to direct the respondents to appoint manager/pujari in the Mahadev Ni Jagya Trust, pending the admission, hearing and final disposal of this petition; (D) YOUR LORDSHIPS be pleased to grant such other and further reliefs as may be deemed fit by this Hon'ble Court, in the interest of justice;"
3. The brief facts of the case are as under :
3.1 The Petitioners have filed Scheme Application No.2 of 2019 for framing Trust Scheme and to appoint the trustee in the "Mahadev Ni jagya" to manage the Mahadev ni jagya (Known as Nilkanth Mahadev Trust, Shetrunjay Hill, Palitana) under the provisions of section 50A of the Bombay Public Trust Act,1950 (for short 'the Trust Act').
3.2 It is the case of the petitioner that on 13.8.1953, Government of Saurashtra passed an order Page 61 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
delegating powers to Assistant/Dy. Collector to appoint Pujari of village temple in consultation with the village people and vide order dated 3.8.1958, Assistant Collector Officer appointed Trikambharti Gopalbhartison of Gopalbharti Rambharti as Pujari of Mahadev ni jagya (Known as Nilkanth Mahadev).
3.3 It is the case of the petitioners that thereafter one Shri Hirapuri Ganeshpuri made an application on 31.5.1958 for registration of "Mahadev ni jagya"
Shetrunjay Hill, Palitanaas as a public Trust. On 17.5.1965 trust was registered vide registration no.1176 as "Mahadev ni jagya" Shetrunjay Hill, Palitana. Shri Hirapuri Ganeshpuri was appointed as manager and Pujari of the trust.
3.4 Thereafter on 16.2.1975, Pujari Shri Hirapuri Ganeshpuri expired. Thereafter respondent no.2 has not made any appointment of Pujari and Manager in the Mahadev ni Jagya Trust and therefore in the year 2015,Sadhu Samaj has appointed one Shri Kalubharti Guru Shri Vitthal bharti as Mahant/Pujari at Mahadev ni Jagya(Known as Nilkanth Mahadev Temple).
3.5 It is the case of the petitioners that said Shri Kalubharti Page 62 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
Guru Shri Vitthalbharti made an application to the respondent no.2 for appointing him as Pujari and Manager of Nilkanth Mahadev Temple.
3.6 Respondent no.2 on 26.6.2015 forwarded the said application to the respondent no.3 i.e. Mamlatdar stating that the respondent no.3 has powers to appoint Pujari.
3.7 On 23.7.2015, respondent no.3 wrote a letter to Shri Kalubharti Guru Shri Vitthalbharti to submit relevant documents.
3.8 Thereafter on 30.10.2015, Assistant Charity Commissioner wrote a letter to Mamlatdar stating that the power to appoint pujari and manager in temple is with the State and therefore, State has to appoint pujari and manager in the Nilkantha Mahadev Temple and therefore, Assistant Charity Commissioner has no role. It was also stated that as per sec.22 of the Trust Act after the appointment of the trustees, the Assistant Charity Commissioner has to only approve the change report.
3.9 Vide order dated 16.2.2016 Vishwa Hindu Page 63 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
Parishad requested respondent no.2 to appoint Shri Kalubharti Guru Shri Vitthalbharti as Pujari/Mahant in the Nilkantha Mahadev Temple.
3.10 On 29.2.2016, respondent no.2 wrote a letter to respondent no.3 stating that after appointment of Trikambharti no order was made and therefore he asked respondent no.3 to give certain details regarding the appointment of Mahant in the Shiv Temple.
3.11 Vide letter dated 26.4.2016 respondent no.3 informed respondent no.2 that earlier, office of respondent no.2 had made appointment of Trikambharti Gopalbharti on 3.8.1958 and thereafter no appointment is made.
3.12 Thereafter on 22.6.2016 respondent no.2 rejected the application made by the Mahant Kalubharti Vitthalbharti on 18.6.2015 observing that the State has not given any power to Deputy Collector for appointment of pujari at Nilkanth Mahadev Temple.
3.13 The respondent no.3 vide letter dated 17.9.2016 Page 64 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
informed Collector that the power of appointing Pujari is with respondent no.2 and therefore respondent no.2 may be directed to pass suitable orders.
3.14 Vide letter dated 6.3.2017, the respondent no.2 informed Kalubharti Vithalbharti that respondent no.2 i.e. Deputy Collector has no power to manage the temple situated at Shetrunjay Hill and also informed that the application to appoint Kalubharti Vithalbharti as Pujari at Mahadev Ni Jagya Trust could not be considered for appointment as Pujari since it is made on the basis of family succession. 3.15 It is the case of the petitioners that since no pujari was being appointed by respondents, a Public Interest Litigation was filed by Vishwa Hindu Parishad inter alia seeking direction to appoint pujari by filing PIL no. 180 of 2017 wherein this Court issued notice. During the pendency of the PIL, respondent no.2 herein vide order dated 13.09.2017 appointed one Shree Atulbhai Rathod as Pujari on temporary basis till the trustees are being appointed in Mahedav Ni Jagya Trust.
3.16 On 25.12.2018 scheme application no.2/2019 was Page 65 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
filed by the present petitioners before the respondent no.1 i.e. Joint Charity Commissioner.
3.17 On 17.5.2019 respondent no.1 has rejected the scheme application No.2/19 for appointment of trustees in Mahadev Ni Jagya, Shetrunjay Hill, Palitana.
3.18 It is the case of the petitioners that despite the direction given by the respondent no.1 to respondent no.3 to appoint manager in the Temple, the respondent no.3 has not taken any steps and therefore on 8.7.2019 petitioner no.1 made an application to respondent no.3 to comply the direction given by the respondent no.1.
3.19 In response to the application made by the petitioner no.1, respondent no.3 vide letter dated 17.7.2019 informed the petitioner no.1 that Pujari Hirapuri Ganeshpuri who was the registered Pujari in P.T.R has died and there are no trustees and therefore the Deputy Collector, Palitana has appointed Atulbhai Durlabhabhai Rathod as Pujari on 19.9.2017. It is also informed that as the appointment Atulbhai Durlabhabhai Rathod is already Page 66 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
made by the respondent no.2, now no action is required to be taken to comply the order passed by the Joint Charity Commissioner.
3.20 Though the respondent no.1 clearly directed the respondent no.3 to appoint manager in the Temple and though the reminder is sent by the petitioner no.1, the respondent no.3 was not taking any steps to comply the direction. The petitioners therefore on 19.8.2019 made a representation before respondent no.1 stating that respondent no.3 is not taking any steps to appoint Manager as directed and therefore prays to take action against respondent no.3 Mamlatdar to comply with direction given in the order dated 17.5.2019.
3.21 It is the case of the petitioners that despite several reminders and representation, respondent no.3 has not taken any steps to comply with the direction given by the respondent no.1 vide order dated 17.5.2019 till 22.1.2020 i.e. around 6 months. Therefore, on 22.1.2020, one Shri Bharatbhai Rathod has made an application before the respondent no.3 to comply the order dated 17.5.2019.Page 67 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021
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3.22 On 6.2.2020, respondent no.3 sent reply to application dated 22.1.2020 stating that power to appoint pujari is with the Deputy Collector and therefore respondent no.3 Mamlatdar has no jurisdiction to entertain the application.
3.23 Respondent no.3 wrote a letter to respondent no.2 that power to appointment of pujari in Nilkanth Mahadev Temple situated the Shterunjay Hill is with the office of Deputy Collector and further requested the respondent no.2 to take further action for the same.
3.24 Thereafter respondent no.2 wrote a letter to Shri Bharatbhai Rathod stating that respondent no.1 has not given any direction to the respondent no.2 in the order dated 16/17.5.2019. It is also stated that power to appoint pujari in the temple is with respondent no.2 and under the same respondent no.2 has already made appointment of pujari in the Shiv temple vide order dated 13.9.2017.
3.25 It is the case of the petitioners that on one hand respondent no.2 in the letter dated 6.3.2017 stated that respondent no.2 has no power to manage temples situated in the Shetrunjay Hill, on the other hand vide order dated 13.9.2017 the very same authority passed Page 68 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
an order appointing Atulbhai Rathod pujari of Shiv temple situated at Shetrunjay Hill and vide communication dated 28.2.2020 informed that respondent no.2 has power to appoint pujari and therefore he had already made an appointment on 13.9.2017. Being aggrieved by such action on part of the respondents, the petitioners have preferred this petition.
4. Learned advocate Ms.Pahwa for the petitioners submitted that the respondent Charity Commissioner has rejected the Scheme Application preferred by the petitioners only on the ground that the provisions of Section 56T of the Trust Act is applicable and therefore, no scheme can be framed as the same is prohibited. She referred to the provisions of Section 56T of the Trust Act to pointout to submit that the same would not be applicable in the facts of the case.
5. On the other hand, learned AGP Mr.Joshi for the respondent, who appears on advance copy submitted that there is an alternative efficacious remedy available under Section 72 of the Trust Act to challenge the order passed by the Charity Commissioner and therefore, the petitioners should file an appeal challenging the impugned order.Page 69 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021
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6. In response to such preliminary objection raised by the AGP, Ms. Pahwa submitted that section 72 of the Trust Act would not be applicable when the Scheme under section 50A of the Trust Act is rejected by the Charity Commissioner.
7. Having considered the rival submissions, and having gone through the materials on record, in order to decide preliminary objection raised by the AGP with regard to alternative and efficacious remedy, it would be necessary to refer to Section 72 of the Trust Act which reads as under:
"SECTION 72 : Application from Charity Commissioner's decision under section 40, 41, 50A, 70 or 70A] etc (1) Any person aggrieved by the decision of the Charity Commissioner under section 40, 41, 50A, 70 or 70A] or on the questions whether a trust exists and whether such trust is a public trust or whether any property is the property of such trust may, within sixty days from the date of the decision, apply to the court to set aside the said decision.
(1A) No party to such application shall be entitled to produce additional evidence, whether oral or documentary, before the Court, unless the Deputy or Page 70 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
Assistant Charity Commissioner or the Charity Commissioner has refused to admit evidence which ought to have been admitted or the Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause to court thinks it necessary to allow such additional evidence :
Provided that whenever additional evidence is allowed to be produced by the Court, the Court shall record the reason for its admission.
(2) The Court after taking evidence if any, may confirm, revoke or modify the decision or remit the amount of the surcharge and make such orders as to costs as it thinks proper in the circumstances.
(3) Pending the disposal of an application under sub-
section (2) all proceedings for surcharge shall be stayed if the person aggrieved makes out a Prima facie case for a stay order, (4) An appeal shall lie to the High Court against the decision of the court under sub-section (2) as if such decision was a decree from which an appeal ordinarily lies.
Explanation.-In this section, the expression "decision" shall include a scheme framed or modified under section 50A."
8. In view of the above provisions of Section 72 of the Trust Act, there is an alternative efficacious remedy available to the petitioners to challenge the order passed by the Charity Commissioner under Section 50A of the Page 71 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
Trust Act as it is a decision of the Charity Commissioner which may be wither approving or rejecting the scheme under section 50A of the Trust Act. Therefore, without entering into the merits of the matter the petitioners are relegated to file appeal under section 72 of the Trust Act in view of such alternative efficacious remedy. The petitioners may file such appeal at the earliest and when such appeal is filed, the Competent Authority shall deal with the same without raising any issue of limitation in accordance with law.
9. Special Civil Application stands disposed of accordingly with no order as to cost.
sd/-
(Bhargav D. Karia, J.)"
18. Thus, Mr. Mihir Joshi submitted that Respondent No.4 -
Kalubharti Guru Vitthalbharti intends to grab the control and management of the said Mahadev Temple contrary to the Documents of 1877 and 1928 and all Government orders somehow or the other and even this Public Interest Litigation is filed at his behest and therefore the same deserves to be dismissed.Page 72 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021
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19. Mr. K.M.Antani, learned Assistant Government Pleader also supported the arguments of Mr.Mihir Joshi and submitted that the State has already appointed the said Shri Atulbhai Durlabhbhai Rathod as the Pujari of the said Mahadev Temple on Shetrunjay Hills vide order dated 13.9.2017 and the said order has not been challenged by the Petitioner or anybody else. He also relied upon the Documents of 1877 and Agreement between the State and Jain community of 1928 as aforesaid and submitted that though the right of management of Mahadev Temple was not kept with the Jain community while for all other Temples including the Jain Temples and Non-Jain Temples on Shetrunjay Hills was vested with the Jain community, the management of the said Mahadev Temple was kept with the State who would appoint Pujari from time to time for that Temple and who was paid by the Jain Trust only and manage the Mahadev Temple in accordance with the tenets of Jain community, like not to food etc. to be consumed there, maintaining hygiene, peace and decorum and no overnight stay permitted in said Mahadev Temple.Page 73 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021
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20. The Petitioner has filed a Rejoinder Affidavit dated 28 th March 2019 which is also quoted below in the form of scanned reproduction.Page 74 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021
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21. We have heard learned counsel at length and perused the record and material placed on record.
22. Before pronouncing upon the prayers made in the present Public Interest Litigation filed by the Vishwa Hindu Parishad which locus is also under challenge, a few words about the importance of Palitana Hills/ Shetrunjay Hills for the Jain community since times immemorial will be in order.
Historical Background of Shantrujay/Palitana Hills:
23. According to Shetrunjay Mahatmya, an ancient and authentic literature, the first Tirthankara Rishabhadev sanctified the said Hills where he delivered his several sermons after achieving "Kevalgyan" lakhs and crores of years before now. It was his grandson Pundarika who also achieved salvation at Shetrunjay, hence the Hills was originally known as Pundarikgiri. Bharata Chakravartin, the father of Pundarik and half brother of Bahubali Page 86 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
also came to Shetrunjay many times. He is also credited with building Temples in honour of father Rishabha or Lord Adinath.
The Palitana Jain Temples were built over a period of 900 years starting from 11th Century and one Kumarpal built the earliest of the Jain Temples on Shetrunjay Hills. Most of the Temples which are now present on the said Hills date back to 16 th Century. In 1656 Shah Jahan's son Murad Baksh (the then Governor of Gujarat) granted the village of Palitana to the prominent Jain merchant Shantidas Jhaveri, a Swetamber Jain in 1656 and it is said that subsequently when all taxes were also exempted that the said Temple town further prospered. It was brought under the control of Anandji Kalyanji Trust in 1730 on behalf of all sects of Jains to manage not only Palitana Temples from Taleti to Top but also other many Temples of Swetamber Jain since the Mughal period all over these Centuries.
24. The Palitana Temples are considered to be the most scared Tirthas (Pilgrimage place) by the Jain community. There are Hundreds of Jain Temples ranging from 863 to 1008 in numbers.
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They are situated in separate enclosures surrounded by high fortified walls. They are grouped in 9 separate wings or Tunks, each wing having a separate central shrines or minor shrines surrounding it.
25. The Adinath Temple is the main Temple in the apex of northern ridge of the complex and is dated to the 16 th century having Lord Adinath or Rishabha as the main idol. The Chaumuk Temple built in 1616 has a four-faced Adinatha image deified on a white pedestal, each face turned towards the cardinal directions.
26. Besides this brief history it is also worth while to refer to copyrighted Legal Documents issued by the Collectorate of District Bhavnagar, which is produced at Annexure R-4 on record with its copyright registered in 2017 with the Collectorate District Bhavnagar which describes Palitana Temples in the following terms:-
English Transcript "The Palitana temples of Jainism are located on Shatrunjaya by the city of Palitana in Bhavnagar district, Gujarat, India. The city of the same name, known previously as Padliptapur, has Page 88 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
been nicknamed "City of Temples". Along with Shikharji in the State of Jharkhand, the two sites are considered the holiest of all pilgrimage places by the Jain community. As the temple-city was built to be an abode for the divine, no one is allowed to stay overnight, including the priests. Every Jain believes that a visit to this group of temples is essential as a once in a life time chance to achieve nirvana or salvation.
This site on Shatrunjaya hill is considered sacred by Jains and have hundreds of temples. There are approximately 863 marble-carved temples on the hills. The main temple is reached by stepping up 3500 steps. It is said that 23 tirthankaras (a human being who helps in achieving liberation and enlightenment), except Neminatha (a liberated soul which has destroyed all of its karma), sanctified the hill by their visits. The main temple is dedicated to Rishabha, the first tirthankara; it is the holiest shrine for the Svetambara Murtipujaka sect. Digambara Jain have only one temple here."
27. In the same document, the Guidelines about the things to do at Shatrunjaya Hills are also incorporated which are also narrated herein below:
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English Transcript "Things to do The climb up Shatrunjaya is no doubt the primary activity of a Palitana visit, for Jains and non-Jains alike. The hill is 3 kms from Palitana proper, and the 600 m. climb over 3000 m. stairs to the top of the mountain is an unforgettable experience. Beginning at dawn is recommended, to avoid the mid-day heat. Frequent rest stops to visit temples along the way also help avoid overheating. Many devotees even gather at the highest temples before sunrise, having climbed in the predawn twilight. Be sure to carry enough water and leave a few hours to explore the mountain. Idols are bathed around 9.30 a.m, and pujas tend to be performed around noon. If climbing in the afternoon, be sure to descend with enough time to arrive at the bottom before dark.
The construction of temples of Palitana spanned over a period of 900 years and was structured in two phases. From the 11th to 12th centuries AD as a part of the resurgence of temple building all over India, the first phase of temple architecture was constructed. The second phase followed later, from the 16th century AD onwards. Muslim invaders destroyed some of the earliest temples built in the 11th century AD during the 14th and 15th centuries AD. No one person can be attributed for the construction of these magnificent temples rather it was the effort of the wealthy businessmen who were followers of Jainism.
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Jainism, no leather products (wallets, belts, etc.) should be carried on the mountain. Dress appropriately; shorts and sleeveless shirts are considered disrespectful. Women should avoid tight-fitting clothing. When entering temples, remove your shoes and leave any food outside. Inside the shrines, you should not talk, laugh or smoke. Permission must be obtained from temple attendants for photography. There is no entry fee for any part of the mountain. No one, not even the priests, may remain on the mountain at night, as it is an abode of the gods and they are not to be disturbed."
Historical Documents reg. Shatrunjay/Siddhachal Hills
28. Even though the question of ownership of Swetamber Jain community of this Shatrunjaya Hills was never in doubt nor it is in dispute here, but there are some Documents placed on record by the Respondent No.5 - Trust and some reference materials which are found to be very interesting and are of a very old period. One is a Sanad of the Moghal Emperors giving certain Hills in the State of Gujarat and State of Bengal (now Jharkhand) to the famous Jain Tirths. This Persian Document was translated on 10th December, 1867 for one Baboo Poorun Chand Golacha by Shama Churn Sircar, Chief Interpreter and Translator, High Court Original Jurisdiction, Registrar, Bengal Secretariat, of which the scanned Page 91 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
copy, as it is reproduced below for ready reference.
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English Transcript Appendix "C"
Sanads of the Moghal Emperors.
ACCOMPANIMENT GOD ALMIGHTY
FIRMAN OF JELAULOODEEN The glory of relgion and world, Akbur
MAHOMAD, AKBUR Badsha, the son of Humayoon Badshal,
BADHA, THE the son of Baber Badshah the son of Sik
HERO Omer Mirza, the son of Sooltan Aboo
Sayeed, the son of Sooltan Mohamed
Mirza, the son of Meerunshah, the son of
tymoor, the August
HERO
Be it known to the Officers of the present and future times, the Governors, Kurrorees, Jaegheerdars of the Soobahs (Provinces) of Malwali and shah Jehanabad, (Delhi) Akburabad, (Agra) the seat of Government, Lahore: (another) seat of Government, Mooltan the place of protection, Ahmedabad, Ajmeer the auspicious, Meerut and Goozrat, and the Province of Bengal, as well as other countries in (our) dominion.
Whereas the whole attention of the high-minded is directed to comply with the wishes, and the entire design of (this) well wisher is directed to govern in the hearts of Page 94 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
the hosts of ryots and people, who are the noblest of the creatures of the master of blessings; more especially as our mind, which is concerned with angels, is devoted to seek the pleasure of, and to render auspicious, the pure-minded and persons of pure thoughts, whose hearts are devoted to the contemplation of God and nothing else, therefore whenever we hear of a body or of persons of any religion or persuasion whose heart is full of God, and who pass their lives in the remembrance and contemplation of Almighty the just; and being, as we are, extremely and justly desirous of knowing their real virtues and intrinsic merits, without minding what religion or doctrine they may follow, we, by the despatch of honorific letter, and in honorable manners, bring them (to our presence from distant journeys, and enjoy their company, therefore, having heard, on several occasion, of the godliness and austere devotion of Heer Bijoy Soor, an Acharj (preceptor) of the Jain Setambari religion or doctrine, and his disciples and followers, who live at the ports of Goozrat, we had sent for him, and when, after the interview which made me very happy, he intended to return to the usual place of his residence, he requested that with the view of doing honor to him an order be made that the heaven reaching mountains Siddhachul-Jee, Ginar-Jee, Tarunga-Jee, Kessurianauth-Jee and Abhoo-Jee, situate in the country Page 95 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
of Goozrat, the live mountains Raj-giree-Jee, the Somed Sekhur-Jee, alias Parus-nauth Jee, situate in the country of Bengal, and all the Kooties and temples below the mountains and all the places of worship and pilgrimage of the Jain Setambari religion or doctrine throughout our empire and dominion, wherever the same may be, be in their possession; that no one can kill an animal on those mountains and temples or below or about them. As he came from a long distance, and his request was really a just and reasonable one, and we do not find it contrary to law, (it being the rule of the worshippers of God to preserve all religions), and as it appeared to us upon enquiry and we are satisfied that those mountains and places of worship appertain to the religion of Jain Setambari, therefore, in compliance with his request, we grant, and bestow upon, Heer BijorSoor, Acharj of the Jain Setambari religion, the mountain Siddhachul, the mountain Girnar, the mountain Tarunga, the mountain Kessuria-nath, and the mountain Abhoo, lying in the country of Goozrat, the five mountains of Rajgiree, and the mountain Somed Sekhur alias Parus- nauth, lying in the country of Bengal, together with all the places of worship and pilgrimage below the mountains, wherever those places of worship and pilgrimage below the montains, wherever those places of Page 96 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
worship be within our empire and dominion. It is proper that the perform devotion with composure of heart. Futhermore, althoug these mountains and the palces of worship and pilgrimage, which are the places of the (followers of the) Jain Setambari religion, are given to Heer Bijoy Soor, yet in reality they are of the followers of the Jain setambari religion. May this Firman Shine like the sun and moon amongst the followers of the Jain Setambari religion, as long as the sun may shine in the day with his resplendent rays, and the moon make the night delightful by her light. Let, no one offer an opposition or make objection to the same; let no one kill an animal, on, below, or about the mountains and places of worship and pilgrimage; let the orders contained in (this)Firman, which commands obedience, by (inhabitants of) the world, be acted upon and carried out, and let none depart from the same, and require a new Sunnud (Grant) date, the 7th day of the month of Ardee Beghisht, corresponding with the month of Rubee-ula-wol, of the thirty-seventh year of the reign of the exalted (Emperor).
A true translation of the annexed Persian document for BABOO POORUN CHAND GOLACHA, the 10th December 1867.
(Sd.) SHAMA CHURN SIRCAR, Page 97 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
Chief Interpreter and Translator, High Court Original Jurisdiction, Registrar, Bengal Secretariat.
29. Equally interesting extracts of Akbar's respect for Jains are found extracted in Hinsa Virodhak Sangh versus Mirzapur Moti Kuresh Jamat and Ors. (2008) 5 SCC 33 in which Hon'ble Supreme Court upholding the ban on slaughtering during the period of 'Paryushan' for 9 days considered as most pious festival by Jain Community. The Hon'ble Court referred to the historical events during Mughal Emperor Akbar in 1582 in paras 50 to 57 as under:
"50. Thus, as stated in the Cambridge History of India (Vol.IV The Mughal Period) Emperor Akbar conceived the idea of becoming the father of all his subjects, rather than the leader of only the Muslims, and he was far ahead of his times. As mentioned by Pt. Jawahar Lal Nehru in `The Discovery of India, Akbars success is astonishing, for he created a sense of oneness among the diverse elements of India.
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Bhanuchandra Upadhyaya and Vijayasena Suri. Jainism, with its doctrine of non-violence, made a profound impression on him and influenced his personal life. He curtailed his food and drink and ultimately abstained from flesh diet altogether for several months in the year. He renounced hunting which was his favourite pastime, restricted the practice of fishing and released prisoners and caged birds. Slaughter of animals was prohibited on certain days and ultimately in 1587 for about half the days in the year.
52. Akbars contact with Jains began as early as 1568, when Padma Sunder who belonged to the Nagpuri Tapagaccha was honoured by him.
53. As mentioned in Dr. Ishwari Prasads `The Mughal Empire, the Jains had a great influence on the Emperor. A disputation was held in Akbars court between the Jain monks Buddhisagar of Tapgaccha and Suddha Kirti of Khartargaccha on the subject of Jain religious ceremony called Pansadha in which the winner was given the title Jagatguru by Akbar. Having heard of the virtues and learning of Hir Vijaya Suri in 1582 the Emperor sent an invitation to him through the Mughal Viceroy at Page 99 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
Ahmedabad. He accepted it in the interests of his religion. He was offered money by the Viceroy to defray the expenses of the journey but he refused. The delegation consisting of Hir Vijaya Suri, Bhanu Chandra Upadhyaya and Vijaya Sen Suri started on their journey and walked on foot to Fatehpur Sikri and were received with great honour befitting imperial guests. Hir Vijaya Suri had discussion with Abul Fazl. He propounded the doctrine of Karma and an impersonal God. When he was introduced to the Emperor he defended true religion and told him that the foundation of faith should be daya (compassion) and that God is one though he is differently named by different faiths.
54. The Emperor received instruction in Dharma from Suri who explained the Jain doctrines to him. He discussed the existence of God and the qualities of a true Guru and recommended non-killing (Ahinsa). The Emperor was persuaded to forbid the slaughter of animals for six months in Gujarat and to abolish the confiscation of the property of deceased persons, the Sujija Tax (Jeziya) and a Sulka (possibly a tax on pilgrims) and to free caged birds and prisoners. He Page 100 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
stayed for four years at Akbars court and left for Gujarat in 1586. He imparted a knowledge of Jainism to Akbar and obtained various concessions to his religion. The Emperor is said to have taken a vow to refrain from hunting and expressed a desire to leave off meat- eating for ever as it had become repulsive. The Emperor presented to him Padma Sundar scriptures which were preserved in his palace. He offered them to Suri as a gift and he was pressed by the Emperor to accept them. The killing of animals was forbidden for certain days.
55. If the Emperor Akbar could forbid meat eating for six months in a year in Gujarat, is it unreasonable to abstain from meat for nine days in a year in Ahmedabad today?
56. Emperor Akbar was a propagator of Suleh-i-Kul (universal toleration) at a time when Europeans were indulging in religious massacres e.g. the St. Bartholomew Day massacre in 1572 of Protestants, (called Huguenots) in France by the Catholics, the burning at the stake of Protestants by Queen Mary of England, the massacre by the Duke of Alva of millions of people for their resistance to Rome and the burning at Page 101 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
the stake of Jews during the Spanish Inquisition. We may also mention the subsequent massacre of the Catholics in Ireland by Cromwell, and the mutual massacre of Catholics and Protestants in Germany during the thirty year war from 1618 to 1648 in which the population of Germany was reduced from 18 million to 12 million. Thus, Emperor Akbar was far ahead of even the Europeans of his times.
57. Emperor Akbar himself abstained from eating meat on Fridays and Sundays and on some other days, as has been mentioned in the Ain-I-Akbari by Abul Fazl.
30. Another historical record with regard to Mughal Firman in favour of Jains in Gujarat are found in Journal of the University of Bombay in (1940) Vol. IX Part 1 in which in the Article "Imperial Mughal Farmans in Gujarat" (Being Farmans mainly issued in favour of Shantidas Jawahari of Ahmadabad by the Mughal Emperors) by Khan Bahadur, M.S. Commissariat, M.A., I.E.S (Ret.) It is given as under herein scanned form:
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31. The R/5 document Appendix H viz. the Resolution No.1614 of Political Department in English Rule times dated 16.3.1877 is also quoted herein below on which the reliance was placed by the learned senior counsel Mr.Mihir Joshi appearing for Respondent No.5 - Trust is also reproduced below in the scanned copy form for ready reference. Pg.130-131 Page 128 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
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English Transcript APPENDIX "H"
No.1641 POLITICAL DEPARTMENT BOMBAY CASTLE, 16th March, 1877.
Read Resolution No.2-747, dated 11th May, 1876. Read also letter from the Political Agent, Kattywar, No. 303, dated 13th August 1876 - Forwarding a petition from the Shrawuk community appealing against the decision of that Agency on their claim to exclusive possession of the Shatrunjay Hill.
Letter from the Political Agent, Kattywar, No. 307, dated 1st September, 1876-Forwarding two copies of a letter from the Thakore Sahib of Palitana, dated 26th August 1876, appealing against the decision of that Agency in the matter of claim of the Shrawuks to the Shatrunjay Hill.
Petition from Anandji Kallianjee, Representative of the Shrawuks, Ahmedabad, dated 7th February 1877 - Reiterating his prayer that the Thakore Sahib of Palitana may be restrained from encroaching upon their rights and privileges on the Shatrunjay Hill.
Report by the Political Agent, Kattywar, No. 76, dated 26th February 1877 -Stating that the above memorial of the Shrawuks appears to be supplementary to their appeal forwarded to Government with No. 303 of 1876, and may be filed along with it.
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RESOLUTION.-The settlement between the Thakore of Palitana and the Shrawuks made by Colonel Keatinge in 1863, confirmed by this Government in 1866 and the Secretary of State in 1867, was afterwards. held not to have included the question of the Thakore's right to levy a price for the ground taken for any new temple which the Shrawuk community might wish to build on the Shatrunjay Hill, and this point, under date February 24th, 1875, referred to Mr.Peile, the Political Agent in Kattywar, for enquiry and decision. Finding that the matter would take a long time to settle, and that an intricate enquiry would be necessary. Mr. Peile referred the matter to his Judicial Assistant, Mr.Candy, who decided under date 28th December 1875. This decision was forwarded to Government with a letter of suggestions by Mr. Peile under date 6th January 1876. Government resolved that Mr.Candy's decision together with Mr. Peile's proposals, should be printed and copies furnished to both sides, who should be permitted to frame such objections to the decision as they might think fit, and that then the matter would come before Government in appeal in a manner in which it was hoped the question might be satisfactorily settled. The objections of the Shrawuks dated 26th August, and of the Thakore dated idem have been received, and the matter now comes before Government for decision.
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Thakore Sahib and the Shrawuks respectively in land on the Shatrunjay Hill available for temple sites?" and in forwarding it to his Judicial Assistant, the Political Agent laid down that "as the ownership of the land is by presumption with the lord of the Taluka, the Shrawuk petitioners will appear as Plaintiffs at the trial of this issue and the Thakore Sahib of Palitana as Defendant."
3. Mr.Candy after a very lengthy inquiry in an elaborate judgment, recorded his finding thus:--
"(1) I find that the Thakore is not entitled to demand payment of any land that may be required for the site of a new temple on Shatrunjay Hill.
"(2) I find also, as arising from the above issue, that the Shrawuks are entitled to the exclusive possession of all inside the Gudh. The Thakore is not entitled to levy any tax or to station sepoys therein; but of course free ingress and egress should be permitted to the Thakore and his servants. "(3) That the Thakore is entitled to demand a nazerana, or royalty on all temples, etc. built on the Shatrunjay Hill outside the Gudh."
4. Mr.Peile, in forwarding this decision, observes: "If these views of the rights of the parties and the requirements of public expediency are accepted" (alluding to the summary he had given of Mr.Candy's judgment)" some such ruling as the following may serve to end the dispute and regulaté future dealings;-
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(a) The Shatrunjay Hill in the Palitana Taluka is within the jurisdiction of the Thakore of Palitana.
(b) The ownership of the fortification or Gudh in all land within it and of the sites of all buildings hitherto erected by Jains or Shrawuks on the hill outside the Gudh is vested in the Shrawuk community as a religious trust. All Shrawuks and Jains shall have the right of way on the hill to the said Gudh and buildings: The Shrawuk community is not hereby authorised to alienate any property declared to be vested in them by this ruling, nor to interfere with any religious property or rights belonging to other sects which may now exist on the hill.
(c) The Shrawuks are not to place any armed force in the Gudh or any building on the hill but they may entertain private servants sufficient to watch their property.
(d) The Thakore shall place no guard, post, or thana on the hill or at its foot; but the hill and the Gudh shall be open to the police of the Palitana State when in execution of their ordinary duty.
(e) The Thakore of Palitana shall not interfere with the Strawak community in its possession of the Gudh and buildings within it, or of the other Jain buildings on the hill, or the right of way to the said Gudh or buildings nor shall he levy any payment from the Shrawak community on account of new buildings or land taken up for building within the Gudh.
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take new land on the hill without the Gudh for buildings for religious uses, the land shall be given, but the Thakore shall be entitled to receive from the applicant for such land a moderate nazerana in recognition of his rights as lord.
(g) The entire area of the hill lying within the limits of the Taluka of Palitana to be considered land reserved for religions uses, and to be put to no purpose reasonably objected to as repugnant to the Hindu religion or incompatible with its reservation for religious uses.
(h) Any disputes arising under the preceding five rules to be decided by the Political Agent."
5. It is here necessary to allude to the peculiar state of the relations between the Shrawuks and the Thakore and the causes which have led to it, because from it may be gathered the extreme hopelessness of expecting anything like an amicable feeling to exist between them.
In about A.D 1809, the then Thakore Kandaji was unable to manage his affairs and leased the entire Taluka to one Wakhutchand, a member of the Shrawuk community, and a leading Ahmedabad merchant, head of the firm at present presided over by Sett Premabhai Hemabhai (formerly a member of the legislative Council of this Presidency). Wakhutchand held the lease under two subsequent renewals upto 1843, when Noghanji, the father and predecessor of the present ruler, was on the Gadi. The sum paid by Wakhutchand was about Rs.47,000 a year. He also under deeds of mortgage obtained Page 136 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
possession of some of the Mulgrassia's rights and thus became the principal authority in the Taluka, and could, and indeed did, do what he pleased. Now the cancelment of this lease and the taking of the Taluka into the Thakore's own management has been a sore subject with Wakhutchand's firm who are also the leading people among the Shrawuks, as the gains to them under its provisions were very great, and this loss has doubtless caused a deep seated feeling of rancour to exist against the Thakore, more especially against the present Thakore who by his intelligence and general strict management has raised the revenue to nearly three lacs of rupees. While the Shrawuks are thus as it were brooding over their loss, the Thakore on the other hand looks on them as the persons who had for years fattened on his estate, and been the recipients of large sums which he might otherwise have found in the Treasury when he received the "Gadi."
6. These reciprocal feelings undoubtedly exist and to such as extent as not only to prevent the possibility of any amicable arrangement between the parties, but to render any evidence given in their disputes open to the gravest suspicion. The peace and good order of the place. However, require Government to interfere and authoritatively decided the question now at issue and after a careful perusal of Mr. Candy's proceeding it appears to His Excellency in Council that in coming to decision it will be impossible not to be guided by that political expediency which is so theory and intimately connected with the case.
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7. The evidence recorded is not of that nature to amount to judicial proof of the rights of the parties, and Government cannot refrain from giving greater weight, than otherwise would have been required, to the state of things which history shows to have existed for centuries even before the Thakore had his capital at Palitana, viz., that the Shrawuks, or followers of the Jain religion, had their temples and one of their most sacred places of pilgrimage on the Shatrunjay Hill, that spot was one peculiarly venerated by them; while on the other hand it is equally clear that the hill is situated within and forms a portion of the Thakore's principality. But when the proofs are examined it does not appear to Government that there is that direct proof regarding the nature of the rights of either party to the sacred hill that would give either a clear and indisputable claim to it, much less to authorize the Thakore to interfere regarding it in the same manner as he would do with reference to other portions of his estate. Little more is established on the part of the Shrawuks beyond the fact that they have had possession of that part of the hill situated within the Gudh or fortified enclosure for centuries; that they have from time to time erected shrines outside that Gudh; that at times they have paid fees to the Thakore - appparently for protection - (but this is no part of the present quarrel, the amount to be paid having been settled by Colonel Keatinge,) and at times, but many years ago, also some sort of royalty to him for new space for new Page 138 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
temples, though no recent payment of this nature was established. While as regards the Thakore's case it is clear that the claims which the present Thakore has put forward to this hill are not such as any of his predecessors have made, and the experience of the past few years shows that their exercise would only tend to constant quarrels and accusations by the one party or the other, tending to breaches of the peace.
8. Upon a consideration of the whole case therefore His Excellency in Council directs that the dispute between the Thakore of Palitana and the Shrawuks be settled on the following terms;-
1. Within the Gudh the control of the Thakore shall be recognised only for purposes of Police. No money payment shall be claimed by him on account of the erection of a new temple in a Tunk within the Gudh.
2. Without prejudice to the rights of those interested in any existing building, the use of any part of the hill in a manner opposed to the tenets of the Shrawuk community is prohibited.
3. No money payment shall be claimed on account of any temple already in existence, either outside or within the Gudh.
4. In the event of the Shrawuk community desiring to erect a new temple outside of the Gudh, permission shall be given by the Thakore on receipt of one rupee per square yard for the land.
5. No molestation shall be offered to the members of the Page 139 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
Strawuk community resorting to the hill; nor shall any permanent Police post be established at the Gudh or within 500 yards of the road leading up the hill to the Gudh.
32. The said Agreement dated 26.5.1928 was ratified by the Government of Saurashtra also as would appear from another Agreement dated 4.5.1950 after the Independence of India from British Rule between State of Saurashtra and Saheb Shri Kasturbhai Lalbhai the President of Sheth Anandji Kalyanji Trust representing the Jain Swetamber Murtipujak Community of India. The same must have been ratified further upon formation of the State of Gujarat carved out of Presidency of Bombay upon reorganisation of States but such later documents are not placed on record. The said Agreement of 4.5.1950 placed on record is also scanned and reproduced below:
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English Transcript "GOVERNMENT OF SAURASHTRA AGREEMENT This Agreement made this 4th day of May 1950, between the Government of the State of Saurashtra (hereinafter referred to as the Government) and Saheb Shri Kasturbhai Lalbhai the President of the Firm of Sheth Anandji Kalyanji, representing the Jain wetamber Murtipujan Community of India (hereinafter referred to as Jains) witnesseth as follows:
Whereas there has been an agreement made between the then His Highness of Palitana representing the Palitana Darbar and Sheth Anandji Kalyanji representing the Shwetamber Murtipujan Jain Community of India with respect to the Shatrunjaya Hills at Palitana on the 26th May, 1928 and ratified by the Government of India on the same day.
And whereas seven different path as mentioned in the 8 th clause of the said agreement of 1928 to be maintained and repaired by the then Palitana Darbar and represented by Government.
And whereas the first of those seven paths from "Hasta stretching Tunk" by this time formed part of the deviation of the said Mota Rasta sanctioned by the Government so as to Page 143 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
transform it into a part of the said Mota Rasta in the 7 th clause of the said agreement of 26.5.1928.
And whereas these paths are mostly used by Jain Pilgrims and therefore, it is desired to be maintained and repaired by the Jains.
Now, therefore, it is hereby declared and agreed by the parties that:-
(1) The following paths on the Shatrunjaya Hill shall be maintained and repaired by Jains but the ownership of the said paths shall remain with the Government as hereto (1) Cheti Prayag, (2) Rohishala Kedi, (3) Chhagau Rasta, (4) Shatranjuya River Kedi, (5) Dodhgau Rasta, (6) Branch Roads joining Chhagau Rasta and meeting the Chhagau Rasta.
(2) The agreement shall continue for such time as the Government desire.
(3) When the Government wish to end this agreement, they shall inform the Jains of their intention to do so twelve months in advance.
(4) The Government shall give the Jains any land on either side of or within 25 yards of the said paths free of charge Page 144 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
if they require it for the bonafide purpose of constructing Visamas or Kunds for the use of the general public. The management and the control of the said Visamas and Kunda shall rest with the Jains and continue to rest with them in the event of the Government's decision to take upon themselves the task of maintaining and repairing those roads in future as suggested above.
In testimony whereof the Chief Secretary to the Government of the State of Saurashtra on behalf of the Government and Sheth Shri Kasturbhai Lalbhai President of the Firm of Sheth Anandji Kalyanji of Ahmedabad on behalf of Jain Shwetamber Murtipujak Community of India, have hereunto set their hands and seals this 4th day of May, 1950, and this 18 th day of May 1950 respectively.
Witnesses:
Sd/- Illegible Sd/- Illegible Sd/- Katurbhai Lalbhai Sd/- Illegible"Page 145 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021
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Private interest of Shri Kalubharti, Respondent No.4 involved in this PIL.
33. Besides, the aforesaid Documents which are undisputed, let us now have a look at the letters and communications, which reflect the private interest of the Respondent No.4 Kalubharti Guru Vitthalbharti, the self assumed 'Mahant'. The first communication dated 22.6.2016 addressed by Dy. Collector, Palitana to said Respondent No.4 addressing as a Mahant Kalubharti Guru Vitthalbharti in response to his own letter dated 18.6.2015 is reproduced below:
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Typed Transcript in Gujarati Language
G\P V[0LV[DqJXLq!$$q!&
GFIA S,[SZ8Z
SR[ZL4
JCLJ8L XFBF4
5F,LTF6FP
TFP ZZq_&q!&
5|lT4
DC\TzL SF/]EFZTL lJõ,EFZTL4
GL,S\9 DCFN[J D\lNZ4 X[+]\HI 0]\UZ p5Z4
5F,LTF6FP
lJQFI o zL GL,S\9 DCFN[J 8=:8 ZHL:8=[XG G\P V[q!!*&4 5F,LTF6F X[+]\HI 5J"T p5Z D[G[HZ TYF 5]HFZLGL lGD6}\S SZJF AFATP ;\NE" o VF5GL TFP !(q_&q!5 GF ZMHGL VZHLP p5I]"ST lJQFI VgJI[GL ;\NE" VZHLYL zL GL,S\9 DCFN[J 8=:8 ZHL:8=[XG G\P V[q!!*&4 5F,LTF6FGF X[+]\HI 5J"T p5Z D[G[HZ TYF 5]HFZL TZLS[ VF5GL lGD6}\S SZJF ZH}VFT SZ[, K[P H[ VgJI[ H6FJJFG]\ S[4 ;ZSFZzLGF SM. 5ZL5+MYL zL lG,S\9 DCFN[J D\NLZGF 5]HFZLGL lGD6}\S SZJFGL ;¿F V+[G[ CMJFGL HMUJF. SZJFDF\ VFJ[, G CMI4 VF5GL ;\ NE" VZHL CF, NOTZ[ SZJFDF\ VFJ[ K[P H[GL HF6 YJF lJG\TL K[P ;CLqv GFIA S,[S8Z 5F,LTF6F GS, ZJFGF ov DFD,TNFZzL4 DFD,TNFZ SR[ZL4 5F,LTF6FP Page 147 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
English Translation (By Authorized Translator in Gujarat High Court) No.ADM/Vashi/144/16 Office of the Deputy Collector Administrative Branch, Palitana Date: 22/06/2016 To, Mahant Shri Kalubharti Vitthalbharti Nilkanth Mahadev Mandir, On Shetrunjay Hill, Palitana Sub.: For appointment as Manager and Priest in Shri Nilkanth Mahadev Trust, Registration No.A/1176, on Shetrunjay Hill, Palitana.
Ref.: Your application dated 18/06/2015.
With reference to your Application under Reference, you have prayed to be appointed as the Manager and Priest in Shri Nilkanth Mahadev Trust bearing Registration No.A/1176, on Shetrunjay Hill, Palitana.
It is to state that your application has been filed as there is no provision through any circular of the Government granting powers to this office to make the appointment of the Priest in Shri Nilkanth Mahadev Mandir.
Sd/- (Illegible) The Deputy Collector Palitana Copy to :
The Mamlatdar, Mamlatdar Office, Palitana Page 148 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
34. The letter dated 6.3.2017 of Dy. Collector to Mr. Shailesh V. Mehta, Advocate by Respondent No.4.
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Typed Transcript in Gujarati Language G\P V[0LV[DqJXLq!$$q!& GFIA S,[SZ8Z SR[ZL4 JCLJ8L XFBF4 5F,LTF6FP TFP _&q_#q!*
5|lT4 X{,[QFEF. JLP DC[TF4 V[0ŸJMS[84 HXMGFY RMS4 HXMGFY D\NLZGL V\NZ4 .gSD8[1F ;FD[4 D]P EFJGUZP lJQFI o 5F,LTF6F X[+]\HI 5J"T 5ZGF DCFN[J D\NLZDF\ D[G[HZ TYF 5]HFZLGL lGD6}\S SZJF AFATP ;\NE" o !f VF5GL TFP _(q_)q!& GF ZMHGL ZLDF.g0Z GM8L;P Zf S,[S8Z SR[ZL4 EFJGUZGF 5+ G\P V[SFqZqJXLq$Z$!&q!&4 TFP !$q_)q!&P #f DC[;}, lJEFUGF C]SD G\P VFZ0LqJLq0LV[Rq!*&4 TFP !#q(q!)5#P p5I]"ST lJQFI VgJI[GL VF5GL ;\NE" s!fGL ZLDF.g0Z GM8L;YL 5F,LTF6F BFT[GF X[+]\HI 5J"T p5ZGF zL GL,S\9 DCFN[J D\NLZDF\ D[G[HZ TYF 5]HFZL TZLS[ DC\TzL SF/]EFZYL lJõ,EFZYLGL lGD6}\S SZJF ZH}VFT SZ[, K[P S,[S8Z SR[ZL4 EFJGUZGF ;\NE" sZfGF 5+ D]HA S,[S8Z SR[ZL C[9/ H[ N[J:YFGMGM JCLJ8 SZJFDF\ VFJ[ K[ T[DF\ X[+]\HI 5J"T 5Z VFJ[, DCFN[J D\ NLZGM ;DFJ[X YTM GYLP T[DH ;\NE" s#f D]HA UFD0FVMGF D\NLZMDF\ UFD,MSMGF 5ZFDX"DF\ ZCL VF;L:8g8 q GFIA S,[S8ZzLG[ 5]HFZLGL lGD6}\S SZJFGF VlWSFZ VF5JFDF\ VFJ[, K[P HIFZ[ ;JF,JF/]\ D\NLZ 5F,LTF6FGF XC[ZL lJ:TFZDF\ VFJ[,]\ K[P DC[;}, lJEFUGF 5+ G\P Z[Jv5vWDF"NFv&5#4 TFP !&q!!q)# D]HA DC\TGL GLD6}\S SZJFGM 5|`G p5l:YT YFI tIFZ[ S[J/ J\X 5Z\5ZFG[ JX Y. DC\TGL lGD6}\S Page 150 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
SZJFGL ZC[TL GYLP H[YL CF, VF5GL ;\NE"s!fGL DF\U6L VZHL NOTZ[ SZJFDF\ VFJ[ K[P H[YL HF6 YJF lJG\TL K[P ;CLqv GFIA S,[S8Z 5F,LTF6F GS, ZJFGF ov PPP VJFrI PPPP English Translation (By Authorized Translator in Gujarat High Court) " No.ADM/Vashi/144/16 Office of the Deputy Collector Administrative Branch, Palitana Date: 06/03/2017 To, Mr. Shaileshbhai V. Mehta, Advocate Jashonath Chowk, I/s. Jashonath Mandir, Opp. Income-tax, Bhavnagar Sub.: For appointment as Manager and Priest in Shri Nilkanth Mahadev Trust, Registration No.A/1176, on Shetrunjay Hill, Palitana.
Ref.: 1) Your reminder notice dated 08/09/2016
2) Letter No.EKA/2/Vashi/42416/16 dated 14/09/2016 of the Collector Office, Bhavnagar.
3) Order No.RD/V/DH/176 dated 13/08/1953 of the Revenue Department.
With reference to the subject above, by reminder Notice referred at Sr.(1) above, you have requested to appoint Page 151 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
Mahantshri Kalubharthi Vitthalbharthi as the Manager and Priest in Shri Nilkanth Mahadev Mandir on Shetrunjay Hill, Palitana.
As per the letter referred at Sr.(2) above of the Collector office, Bhavnagar, the administration of the temples does not include Mahadev Mandir situated on Shetrunjay hills. Moreover, as per order referred at Sr.(3) above, the Assistant/Deputy Collector is granted powers to appoint Priest in consultation with the villagers in the temples of the villages, whereas the temple in question is situated within urban limit of Palitana.
As per letter No.Rev-5-Dharmada-653 dated 16/11/1993 of the Revenue Department, when the occasion to appoint the Mahant arises, Mahant is not required to be appointed on the basis of ancestral tradition only and, therefore, your application referred at Sr.(1) above is filed, which may be noted.
Sd/- (Illegible) The Deputy Collector Palitana Copy to:
The Mamlatdar, Mamlatdar Office, Palitana"Page 152 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021
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35. Resolution of Bharat Sadhu Samaj :
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Typed Transcript in Gujarati Language
EFZT ;FW] ;DFH
vo D\+LzL ov vo VwI1F ov
zL J{Q6JNF;HL zL DC\T UM5F,FG\NHL A|ïRFZL
ZFHSM8 lA,BF4
OMG G\P _Z(!vZ$&5(Z_ OMG G\P _Z(5vZ&(#_(*
XFBF SFIF",I o lA,GFY DCFN[J D\NLZ4 J\Y,L CF.J[ ZM04 H]GFU-P OMG os_Z(5f Z&*!$ZZ ;CQF" ;FY H6FJJFG]\ S[ 5F,LTF6F XC[ZDF\ X[+]\HI 0]\UZ p5Z zL lG,S\9 DCFN[JG]\ D\lNZ VFJ[, K[4 T[GF DC\T zL SF/]EFZTL U]~ zL lJõ,EFZTL DCFZFHzL 5\R NXGFD H}GF VBF0FGF VG]IFIL CMJFYL VBL, EFZTLI ;FW] ;DFH TYF lUZGFZ D\ 0/ ;J["GL ;CDTLYL DC\T zL SF/] EFZTL U]~ DC\TzL lJõ,EFZTL DCFZFHGF lXQIG[ X[+]\HI 0]\UZ p5ZGF zL lG,S\9 DCFN[JGF SM. JFZ;NFZ G CMJFG[ SFZ6[ VDM ;FW] ;DFH DC\T zL SF/]EFZTL U]~ zL lJõ,EFZTL DCFZFHG[ lGD6]\S SZLV[ KLV[4 VG[ D\ lNZGF CÞ lC:;F T[VMG[ ;M\5JFDF\ VFJ[ K[P D\lNZGL TYF HuIFGL SM.56 DF, lD<STGF CÞNFZ DC\TzL SF/]EFZTL U]~zL lJõ,EFZTL DCFZFH ZC[X[4 T[ AN, lUZGFZ ;FW] ;DFHGL CFHZLDF\ DC\TzL SF/]EFZTL U]~zL lJõ,EFZTL DCFZFHGF lXQIG[ VDM ;FW] ;DFH X[+]\HI 0]\UZ p5ZGF zL lG,S\9 DCFN[JGF DC\T TZLS[GL lGD6]\S SZLV[ KLV[4 ;FW] ;DFHGL CFHZLDF\ RFNZ lJWL ;\5gG SZJFDF\ VFJ[, K[P CF,DF\ T[VM lG,S\9 DCFN[J D\lNZDF\ ZC[ K[ TYF ;\5}6" JlCJ8 ;\EF/[ K[4 T[ ;tI BFTZL5}J"S ,BL VF5LV[ KLV[P Page 154 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
English Translation (By Authorized Translator in Gujarat High Court) Bharat Sadhu Samaj :Secretary: :President:
Shri Vaishnavdasji Shri Mahant
Rajkot Gopalanandji
0281-2465820 Brahmchari
Bilkha
0285-2683087
Branch office: Bilnath Mahadev temple, Vanthli Highway road, Junagadh. Phone: 0285-2671422 It is to be stated that Nilkanth Mahadev temple is situated on Shatrunjay hill in Palitana city. Shri Kalubharati, disciple of Shri Vitthalbharati Maharajshri is the Mahant of the temple and follower of the Panch Dashnam Juna Akhada. Since there is no heir to the temple of Nilkanth Mahadev, situated on Shatrunjay hill, we Sadhu Samaj, appoint Shri Kalubharati disciple of Guru Shri Vitthalbharati Maharajshri as Mahant of the temple, with the consent of Akhil Bharatiya Sadhu Samaj and Girnar Mandal and the rights of the temple are conferred to him. Shri Kalubharati, disciple of Guru Shri Vitthalbharati Maharajshri shall have right on any asset/ property of the temple and place. In presence of Girnar Sadhu Samaj, we Sadhu Samaj, appoint Shri Kalubharati, disciple of Guru Shri Vitthalbharati Maharajshri as Mahant of the Nilkanth Mahadev temple located on Shatrunjay hill. Chadar ceremony is completed in presence of Sadhu Samaj. We affirm that he is residing at Nilkanth Mahadev temple at Page 155 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
present and manages complete administration of the temple.
36. The letter dated 25.7.2017 of Dy. Collector to Manager/Pujari through Nilkanth Mahadev Trust.
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Typed Transcript in Gujarati Language GFIA S,[S8Z VG[ ;A 0LJLhG, D[HL:8=[8GL SR[ZL4 T/[8L ZM04 5F,LTF6F v #&$Z*_P OMG sOS;f G\P _Z($( v Z$##5_ [email protected] vv U]HZFT ;ZSFZ vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv ================================= G\P V[0LV[Dq JXLq!Z*&qZ_!* TFP Z5q_*qZ_!*
5|lT4 D[G[HZ q 5]HFZLzL4 lG,S\9 DCFN[J 8=:84 9[ov T/FHF ZM04 lJHI CG]DFG4 5F,LTF6FP lJQFI o X[+]\HI 5J"T 5Z VFJ[, 5|FRLG XLJ D\lNZzL GL,S\9 DCFN[J D\lNZ s8=:8f GF :YFG 5Z zFJ6 DF;DF\ WFlD"S VG]Q9FG SFI" SZJF AFATP DCFXI4 p5ZMST lJQFI 5ZtJ[GL VF5GL TFP Z_q_*qZ_!*GL VZHL 5ZtJ[ H6FJJFG]\ S[4 VF5GF äFZF X[+]\HI 5J"T p5Z VFJ[, 5|FRLG XLJ D\NLZ zL GL,S\9 DCFN[JGF :Y/[ zFJ6 DF;GF ;\NE"[ VG]Q9FG SZJF DF8[ H. ZC[, CMJFG]\ H6FJ[, K[P H[ AFAT[ VF5G[ H6FJJFG]\ S[ zFJ6 DF; NZdIFG NX"G lJU[Z[ SFDULZL 5]6" SZL ;F\HGF 5ZT OZJFG]\ ZC[X[P H[GL BF; GM\W ,[XMP JW]DF\ VF 5lJ+ TLY"WFD AFAT[ VFPSP 5[-LP 5F,LTF6F TYF ;F{ZFQ8= ;ZSFZ ;FY[ TFP Z&q_5q!)Z( GF SZFZGL GS, HF6 VY[" ;FD[, ZFBL DMS,[, K[P H[ SZFZ VG];FZ VF5[ VG];ZJFG]\ ZC[X[ H[ lJlNT YFIP ;CLqv
5|F\T VlWSFZL s0[%I]8L S, [S8Zf 5F,LTF6F Page 157 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
GS, ;lJGI ZJFGF ov s!f DFGP WFZF;eIzL4 5|lJ6EF. H[P ZF9M04 !_Zv5F,LTF6F lJWFG;EF DTNFZ lJEFU4 9[P 5_v;]lJWF XM5L\U ;[g8Z4 E{ZJ5ZF4 5F,LTF6FP sZf zL EZTEF. V[DP ZF9M04 VwI1F4 lJ`J lCgN] 5ZLQFNv AHZ\UN/v UF{Z1FF 5|B\04 5F,LTF6FP 9[P ov VFZL;F E]JG 5F;[4 T/[8L ZM04 5F,LTF6FP s#f PPPPPPPPPPPPPPPPP VJFrI PPPPPPPPPPPPPPPPP English Translation (By Authorized Translator in Gujarat High Court) Office of Deputy Collector and Sub Divisional Magistrate, Taleti Road. Palitana-364270.
Phone(Fax) No. :02848-243350 [email protected] Government of Gujarat
--------------------------------------------------------------------------------------------- No.ADM/vashi/1276/2017 Date : 25/07/2017 To, Manager/ Priest, Nilkanth Mahadev Trust, At Talaja Road, Vijay Hanuman, Palitana Sub: Regarding performing religious ceremony at the ancient Lord Shiva Temple - Shri Nilkanth Mahadev Temple Page 158 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
(Trust), situated on the Shatrunjaya hill. Sir, With reference to your application dated 20/07/2017, it is to state that, as stated by you, you are planning to conduct a religious ceremony at the ancient Shiva Temple Shri Nilkanth Mahadev Temple, situated on the Shatrunjaya hill, on the occasion of the Shravan month. In this connection, it is to inform you that, you will have to return back in the evening after offering prayers to the God etc. Please take note of the same. Further, copies of the agreement regarding this holy place, executed with A. K. Pedhi Palitana and Government of Saurashtra dated 25/05/1928 are enclosed herewith for information, with a request to comply with the same as per the agreement.
Sd/- Illegible Prant Officer Palitana Copies send to:-
(1) Pravinbhai J. Rathod, M.L.A. 102-Palitana Legislative constituency, at 50- Suvidha Shopping Center, Bhairavpara, Palitana (2) Shri Bharatbhai M. Rathod, President, Vishwa Hindu Parishad- Bajarangdal-
Gauraksha Prakhand -Palitana at - near Arisa Bhuvan, Taleti Road, Palitana.
(3) Illegible... Page 159 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021
VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
37. Letter dated 26.7.2017 Annexure - P of Bharatbhai Madhubhai Rathod, Vice President of Petitioner - Vishwa Hindu Parishad, in which, the said Nilkanth Mahadev Temple within the "Gadh" is admitted.
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5|FRLG V,U V,U WD"v;DFHv ;D]NFIGF WFlD"S N[J :YFGM VFJ[,F K[4 tIFZ[ VF TDFD N[Jv:YFGM 5Z zwWF/]v NX"GFYL"VM HTF CMI K[4 tIFZ[ VF X[+]\HI 5J"T 5Z HJF DF+ RF,LG[ VYJF 0M/L DFZOT[ HF+F YFI K[P VF 5lJ+ 5J"T 5Z VG[S 5|FRLG D\NLZM VFJ[,F K[4 H[GM XF:+Mv5]ZF6MDF\ 56 p<,[BGLI K[P tIFZ[ V[DFYL V[S V[JF zL lG,S\9 DCFN[J D\NLZG]\ 5ZL;Zv .`JZ S]\0 v ELD S]\0 VG[ ;]ZH S]\0 ;\I]ST 5ZL;ZDF\ VFJ[,]\ K[P VF lG,S\9 DCFN[J D\NLZ 5Z ,MSJFISF VG[ H]GF J0L,M £FZF H6FJTF VlC Page 163 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
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lA0F6 ov E]TSF/ AFATMGL TDFD 5[5ZMGL OF., 5+GL GS, ;CLqv ZF9M0 EZT DFW]EF.
s EZTDF. DFW]EF. ZF9M0f p5FwI1F lJPlCP5P EFJGUZ lH<,F GS, ZJFGF ov TDFD HJFANFZ VlWSFZLzLVM4 ;D:T 5+SFZ lD+M v 5F,LTF6FP English Translation (By Authorized Translator in Gujarat High Court) Bharatbhai Madhubhai Rathod Vice Chairman, VIHIP Bhavnagar District.
Residing at Sarvodaya Society, Bharwad Street, Palitana.
Mob.9712907755 Date:-26-7-2017 (1) To The Collector, Bhavnagar District.
(2) To The Deputy Collector, Palitana.
(3) To The Police Superintendent, Palitana. (4) To The Mamlatdar, Palitana.
Subject:- Regarding worshiping of the Hindu temples located on the Palitana Shetrunjay mountain.
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Respected Sir, With reference to the above subject, I beg to submit as below, I have been residing at the above mentioned address with my family since years and have been doing activities for the Hindu Community in various organizations for many years.
Further, it is to state that many ancient religious places of various religion-community are located on the Palitana Shetrunjay mountain. Therefore, visitors are visiting all the temples. This Shetrunjay mountain can be visited for pilgrimage only by walking and through palanquin.
Many ancient temples are located on this holy mountain. Mention is made in scriptures-Puranas also.
One Shri Nilkanth Mahadev temple's campus, Ishwar-Kund-Bhim- Kund and SurajKund are located in the common campus.
According to the folklore and ancestors say, Maharaja Thakor Saheb of Palitana used to come here to worship Shiv at the Nilkanth Mahadev temple and was fulfilling all the responsibilities of the Hindu temple. After the passage of time, as the Country became independent, the Mahadev Temple Trust A/1176 was registered under the Charity Trust and the Government has appointed a priest and worship of this temple was being done daily and for the same the priest was being paid salary by the government.
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Currently, as the priest died due to old age, worship is not being carried out at this temple.
Therefore, the applicant has made an application to appoint as a priest in this trust but keeping political grudge and under political pressure, the file of appointment has been done away.
It is to state further that the worshipers from Palitana city and surrounding country side visit this place in large numbers every year on the day of Chaitra Sud- Punam for worshiping the temples. The attempts were made to break the custom and tradition and misbehaving with the believers and by explaining the innocent believers in the name of religious ignorance, attempts were made to stop from visiting.
You have informed me through letter No.AD/VASHI/1276/2017 dated 25/7/2017 that as per the contract deed of dated 26/5/1928 of the holy pilgrimage, a talk was made regarding contract deed with firm A.K. Pedhi Palitana and Saurashtra government.
As far as, I understand, I state that before the country became independent, in the era of monarchy, huge compound walls were being constructed surrounding the town-village-temples for safety and in this premises, complete town/village and the people residing in it had their respective temples-monastery.
Similarly, there are temples, shrines etc. places of worship belonging to various faiths and communities situated in this Page 168 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
Shatrunjaya Hill Fort. If we talk about present time after the independence of the country, there are various places of worship belonging to different communities such as Digambar Samaj Motisukhiya's Pedhi, Sheth A.K. Pedhi, Angar Shah Peer Shrine, Nilkanth Mahadev Temple Trust, situated in the fort complex on this hill. They run their administration on their own and also make arrangements for the worshiping and security.
As per my knowledge, workers, security personnel, priests are living at this place at present. They are earning their livelihood there and they also cook their food there.
Therefore, we request you not to mislead any religion by falsely explaining and interpreting laws established before the independence and pleasing a particular community thereby.
We too, respect all religions and communities.
Therefore, it is to submit for your kind information that, attempts of ransacking, coloring and destroying Hindu temples by making construction over them by a certain class of people having peculiar mentality to create friction between religions were seen in the past. At those instances, religious harmony was maintained between communities. At present, we are pained by your attitude on the issue of worshiping, sighting of god and religious ceremony. As we are expecting justice from a responsible officer like you, we hope that, this matter will be taken Page 169 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
seriously by you and you will take justified action. Otherwise, we will be compelled to conduct protest to get justice and you will be fully responsible for the same.
As I, am a public representative, people come to me and I have come to know that, there is anger in the public regarding above subject, therefore, kindly take note of the same.
Enclosed :-
Copy of file letters of all the past matters.
Sd/- Illegible (Bharatbhai Madhubhai Rathod) Vice President, V.H.P. Bhavnagar District.
Copies sent:-
All the responsible Officers All the Journalist from Palitana
38. It is also considered appropriate to produce the scanned copies of Maps produced by Respondent No.5 - Trust with its reply Affidavit at page 93-94 and similarly the scanned copy of Google map produced by the Petitioner's side during the course of arguments is also scanned and produced below:
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Map produced by R.5- Trust Page 171 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
Map produced by Respondent NO.5 Trust.
This clearly shows "Mahadev ni Jagya to be within the Gudh (Fort) wall near Bhim Kund and Suraj Kund.Page 172 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021
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Reasons and Findings
39. From the above Documents, materials, correspondence all placed on record and after hearing the learned counsel at length, we are of the considered opinion that the present Public Interest Litigation has been filed with a tangent purpose to serve the personal interest of Respondent No.4 - Kalubharti Guru Vitthalbharti, a person who claims himself to be a Mahant having right to manage the said Temple of Mahadev Temple on the Shetrunjay Hills within the Gadh limits.
40. Though the existence of the said Temple on the Shetrunjay Hills is not even disputed by Respondent No.5 - Trust or the State Government but the management of the said Temple cannot be given to the said Respondent No.4 who does not seem to have any such right whatsoever or anybody and only a Pujari appointed by the State Government in accordance with the Documents of 1877 and 1928 quoted above and practice followed hitherto ever since then can do seva puja in the said Mahadev Temple. The said Mahadev Temple has ever since been managed by the 'Pujari' appointed by the State Page 174 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
Government in terms of Clause 9 and 10 of the Agreement dated 26.5.1928. It is only in the year 2016-2017 this Respondent No.4 cropped up and coming from a distant place Junagadh, where another famous Jain shrine of Lord Neminath known a Girinar Tirth is situated. The said person seems to have used the forum of Vishwa Hindu Parishad, a Hindu Organisation for his private interest in the present matter. The old Documents on record like the Resolution No.1641 dated 16.3.1877 and Agreement between the Palitana State and Jain community Trust dated 26.5.1928 which are undisputed Documents on record clearly stipulate that the Jains are entitled to use the said Shetrunjay Hills for religious purposes and purposes incidental thereo and all lands/trees/buildings and structures within the Gadh walls belong to them and they will manage the said religious properties without any control or interference on the part of Durbar except the police purposes.
41. The Jains represented by Respondent No.5 - Sheth Anandji Kalyanji Trust only will be at liberty without any permission to rebuild and undertake necessary repairs and maintain Gadh wall Page 175 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
provided that in so doing they will not alter the present dimensions and situations thereof. No other new construction by any person or Trust of any Temple or shrine can be permitted except with the express written consent of the Respondent No.5 - Trust and encroachments if any made illegally anywhere on the said pious Hill from Talheti to Top deserves to be removed by the Police force of the State, which Police power only is with the State with regard to the said Shetrunjay Hills under 1928 Agreement.
42. Clause 4 of the said Agreement of 1928 also stipulates that Jain Trust shall manage the Temples of the Hills and outside the Gadh walls also without interference on the part of the Durbar. They shall also maintain and repair path and roads of the said Hills vide Clause 8. Clause 9 and 10 which was the bone of contention between the parties also are very clear in this regard.
43. Clause 9 clearly stipulates that the Jains will have control and management of the Non-Jain shrines mentioned in Mr.Candy's report including the shrine of Ingarshah Pir but however the Page 176 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
management of Temple of Mahadev was kept with the State. The exclusion of Mahadev Temple is only qua management and nothing else, and that too is to be done in conformity with the Jain Tenets.
Thus the Jain community represented by Respondent No.5 now not only has the control and management of Jain Temples on the entire Hill of Shetrunjay and even the Non-Jain shrines as mentioned in the Candy's report. It was further agreed in clause 9 that the said Temple of Mahadev shall be enclosed by a wall separating it from the Gadh wall and an independent access from outside the Gadh wall will be provided thereto and in doing so, the Bhim and Suraj Kunds will be left outside the Mahadev limits. Thus, a wall within the Gadh wall (Fort) was to be created for separately enclosing the said Mahadev Temple within the Gadh and it was also given that a separate access from outside the Gadh wall will be provided.
However, it is not in dispute before us that no such separate wall has ever been constructed nor any independent access has been created for such Mahadev Temple, as it was contended, so as to avoid any threat to any tenets of Jains and for security reasons and this position has never been objected by anybody and all the pilgrims or Page 177 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
worshippers of said Mahadev Temple have the same access way as the persons of Jain community have for the Jain Temples on the said entire Hill. Thus, there is no merit in the contention raised on behalf of the learned counsel for the Petitioner that the Mahadev Temple in question is outside the Gadh wall and the management of the same has to be separately done. It is true that the said Mahadev Temple will be managed by Pujari to be appointed by the State in consultation with Jain community to ensure compliance with the tenets of Jain religion as stated in Clause 4, 9 and 10 of the Agreement of 1928 and such Pujari will also be paid salary by the Respondent No.5 - Trust as has been done for all these years since 1928.
44. The rider on the management of the Mahadev Temple is provided in Clause 10 of the Agreement of 1928 that the Jains will have a right to prescribe all reasonable Rules and Regulations for the conduct of visitors to the Gadh, the Temples and Tunks therein as well as the other shrines on the Hill (including the Mahadev Temple in question) but such Rules and Regulations as regards the non-Jain Page 178 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
shrines shall not interfere with their due and proper worship thereat.
There is no conflict in the two faiths. Had it been so, Ingarshah Pir and Mahadev Temple would not have been constructed out of Funds of Jain Community in such old times and there is no dispute before us that worship rights at Mahadev Temple have never been interfered with by the Jain community in any manner.
45. But a pervasive and overarching control of Rules and Regulations about the conduct of visitors in the entire Gadh area is with the Jain community represented by Respondent No.5 - Trust undoubtedly as per this Agreement and only the management of Puja of the said Mahadev Temple in question has to be done by the State Government within the parameters of Agreement dated 26.5.1928.
46. Similar is the effect of the Resolution No. 1641 of 16th March, 1877 in which vide para 8.2 quoted above, which clearly stipulates that without prejudice the right of those interested in any existing building, the use of any part of the Hill in a manner opposed to the tenets of the Shrawuk community is prohibited. This Page 179 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
Resolution No.1641 of 16.3.1877 was passed upon a dispute between the Thakore of Palitana and the Shrawuks of Jain community which was settled in the terms as stipulated in the Resolution dated 16.3.1877, quoted above.
47. The State has been exercising its right to manage the said Mahadev Temple right from the beginning in consultation with the Jain community only who even bear the salary of such Pujari appointed by the State Government ever since. The latest order dated 13.9.2017 passed by the District Collector appointing Shri Atulbhai Durlabhbhai Rathod as the Pujari for the said Mahadev Temple has already been passed in this regard and the said Pujari Shri Atulbhai Durlabhbhai Rathod is also being paid the salary by the Respondent No.5 - Trust. The said order of the District Collector has not been challenged either by the Petitioner or anybody else . Therefore, merely because a separate Trust has been created for managing the said Mahadev Temple or persons like Respondent No.4 claims any right to manage the said Temple they cannot be vested with any such right in the face of the Documents of Page 180 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
1877 and 1928 referred to above which are binding on all.
48. It was also brought to our notice that the order dated 9.2.2018 passed a Co-ordinate Bench of this Court in Civil Application (For Direction) No.1979 of 2018 negativing any claim for night stay of Pujari etc. in Mahadev Temple and which interim order we make absolute now. In the said order of the Court the order dated 13.9.2017 passed by the Dy. Collector appointing Shri Atulbhai Durlabhbhai Rathod, as Pujari was also noted and in which the Co-
ordinate Bench, allowed seva puja in the said Mahadev Temple on the festival days of Shivratri during day time only. The said order dated 9.2.2018 of Division Bench affirmed by us now is also quoted below for ready reference.
"1. This application is filed by the respondent No.4 - Mr. Kalubharti Guru Vitthalbharti in petition being Writ Petition (PIL) No. 180 of 2017, seeking following main relief:
"(A) Your Lordships may kindly be pleased to permit the Page 181 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
applicant herein to perform Seva Puja on the Auspicious day of "Mahashivratri" falling on 13.02.2018 for entire day and night as per Hindu rituals and further Your Lordships be pleased to suspend the order dated 25.07.2017 passed by the ori. Respondent no.2 for a limited period of two(2) days i.e. from 12.02.2018 and 13.02.2018."
2. We have heard learned counsel for the applicant and also learned Senior Counsel, Mr. Mihir Joshi for the 5th respondent - Trust.
3. It is not in dispute that, there is an order dated 13.9.2017 passed by Deputy Collector, appointing Pujari for the Temple in question. Though the applicant herein claims as an heir of the original Punari and is entitled to perform seva puja in the Temple in question, but said issue is to be decided in the main petition. However, it is to be noticed from the reply affidavit filed on behalf of the 5th respondent in the present Civil Application that they have no objection for performing seva puja by the applicant as a devotee during the day time of Shivratri. It is also brought to our notice by learned Senior Counsel, Mr. Mihir Joshi that, there is no electricity at all in the Temple and surrounding place of the Temple so as to Page 182 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
allow the applicant to perform seva puja during night hours of Shivratri festival. Further, it is not in dispute that as the Temple is a Shiva Temple, the devotees including the applicant are entitled to perform Shiv Pujas, during the day hours of Shivratri festival. As such, we deem it appropriate to dispose of this application, placing on record the statement made by the learned Senior Counsel, Mr. Mihir Joshi appearing for the 5th respondent that they have no objection for performing Seva Puja during the festival days of Shivratri. It is made clear that, not only the applicant, if any of the devotees wish to perform seva puja during the day time, the respondents shall not interfere with such performing of puja by the devotees. This order is passed without prejudice to the rights of the parties in the main petition.
4. Subject to the above, Civil Application stands disposed of.
Sd/- sd/-
(R.SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.)"
49. The learned Government Counsel also produced the copy of a Notification dated 27.9.2017 issued by District Collector, Bhavnagar, Mr. Harshad Patel prohibiting the night stay on the said Shetrunjay Hills for police purposes.
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Page 184 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
Typed Transcript in Gujarati Language G\P 0LP V[DP q 5F,LPHFPGFP q ZFl+ZMSF6 q !* S,[S8Z VG[ lH<,F D[lH:8=[8GL SR[ZL4 0L[PV[DP XFBF4 EFJGUZP TFP Z*q_)qZ_!* oo HFC[ZGFD] oo 5F,LTF6FGF XF`JT DCFTLY" lUlZZFH v 5lJ+ IF+FWFD K[P T[DF\ H{G4 lCgN]4 D]:,LD lJU[Z[GF WFlD"S :Y/M VFJ[,F K[P T[DH VF 5J"T 5Z H\U, lJ:TFZ 56 VFJ[, K[ T[DH lC\;S 5X]VM 56 VF H\U, lJ:TFZDF\ K[P DCFTLY" lUlZZFH 5|l;wW IF+FWFD CM.4 N[XvlJN[XDF\YL V;\:I IFl+SM VF :Y/GL D],FSFT[ VFJTF CM.4 H[YL WFlD"S :Y/M T[DH IFl+SM4 ;\TM4 DH]ZM lJU[Z[GL ;]Z1FF VG[ ;,FDlT VG[ HMBDM 8F/JF T[DH VFT\ SLVMGF HMBD 8F/JF VY[" VF lUlZZFH 5Z ZFl+ZMSF6 VG[ ZFl+5|J[X 5Z 5|lTA\W OZDFJJM H~ZL H6FI K[P ;AA4 U]HZFT 5M,L; V[S8 v !)5! GL S,D v ## s!f s0A<I]f C[9/ DG[ D/[, ;¿FGL ~.V[ C]\ CQF"N 58[, sVF.PV[PV[;Pf4 S,[S8Z VG[ lH<,F D[lH:8=[84 EFJGUZ lH<,M4 EFJGUZ4 VFYL 5F,LTF6F XC[ZDF\ X[+]\HI lUlZZFH p5Z ZF+LZMSF6 T[DH ZFl+5|J[X SZJF 5Z 5|lTA\W OZDFJ] K]\P ;ZSFZL SFDULZL ;AA T[DH OZH 5ZGF VG[ GFID S,[S8Z VG[ ;A 0LJLhG, D[HL:8=[8zL4 5F,LTF6F £FZF VlWS'T SZ[, jIlST q jIlSTVMq SD"RFZLVMG[ lGIT SZ[, ;DI DF8[ VF HFC[ZGFDFGL HMUJF.DF\YL D]lST VF5JFDF\ VFJ[ K[P VF C]SDGM E\U SZGFZ jIlST EFZTLI N\0 ;\lCTFGL S,Dv!(( D]HA lX1FFG[ 5F+ YX[P cc HFC[ZGFDFGF VD, TYF T[GF E\U ANM 5U,F ,[JF C[0 SMg:8[A,YL GLR[GF G CMI T[JF 5M,L; VlWSFZLzLG[ VlWS'T SZJFDF\ VFJ[ K[Pcc Page 185 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
VF C]SD p5Z lGlN"Q8 SZ[, lJ:TFZDF\ ;C[,F.YL N[BL XSFI T[JL ZLT[ ,UFJLG[4 HFC[ZGFDFGL GS, RM\8F0LG[ T[DH :YFlGS JT"DFG5+MDF\ ACM/L 5|l;wWL SZJFG]\ VFYL C]\ OZDFJ]\ K]\P VFH TFP Z*q_)qZ_!* GF ZMH DFZL ;CL TYF SR[ZLGM l;ÞM SZL HFC[ZGFD]\ ACFZ 5F0[, K[P l;ÞM ;CLqv sCQF"N 58[,f S,[S8Z VG[ lH<,F D[lH:8=[84 EFJGUZP English Translation (By Authorized Translator in Gujarat High Court) No.D.M.-1/PLJN/Nightstay/17 Office of the Collector and District Magistrate, D.M. Branch, Bhavnagar.
Date:27/09/2017
-:Notification:-
Shashvat Mahatirth Giriraj is a holy place of Palitana.
Places of pilgrimage belonging to Jain, Hindu, Muslim and others are located at the said holy place. This mountain is covered with forest area as well and wild animals are also found in the said forest area. Mahatirth Giriraj, being a famous holy Page 186 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
place, many national-international pilgrims visit the place.
Hence, in order to prevent the risk of terrorists and for the safety and security of the holy places, pilgrims, saints, laborers etc, it appears necessary to prohibit night stay and night entry to this mountain.
Therefore, I, Harshad Patel (IAS), Collector and District Magistrate, Bhavnagar District, Bhavnagar, by the authority assigned to me u/s-33(1)(w) of the Gujarat Police Act, 1951, prohibit night stay and night entry to the Shatrunjay Giriraj in the city of Palitana.
The on duty person/ persons/ employees authorized by Deputy Collector and SDM, Palitana are exempted from the provision of this Notification for the stipulated time duration for the Government work.
A person violating this order is liable to be punished u/s-
188 of IPC.
"Police officer, not below the rank of Head constable, is authorized for the implementation of this notification and to take action in case of its violation."Page 187 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021
C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
I hereby order to affix copy of this Notification at conspicuous places in the aforementioned areas and publish advertisement in the local newspapers for its publicity.
The Notification is declared today, on 27/09/2017 with my signature and seal of office.
Sd/- (illegible) (Harshad Patel) Collector and District Magistrate, Bhavnagar
50. Thus there is no question of allowing any night stay of Pujari or anybody else or distribution of any Prasad or eatables or drinks etc. at the said Mahadev Temple on Shetrunjay Hills. As a matter of fact in view of the extremely divine and pious character of this Hill maintained by Jain community since times immemorial, no other new structure or construction of any other Temple or any other religion can be permitted on the said entire Shetrunjay Hills from Talheti to Top except with the express written consent of Respondent No.5 - Trust and State shall ensure the same and no encroachment or violation of Jain Tenets on this pious Hill can be Page 188 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
permitted in any manner and if any such encroachments are already done as may be pointed out by Respondent No.5 - Trust, the State authorities will take immediate steps to remove the same forthwith.
51. One of the contentions raised about the said order dated 13.9.2017 before us by the learned counsel for the Petitioner was that only a person belonging to a Brahmin community should have been appointed as Pujari of the said Mahadev Temple and not Shri Atulbhai Durlabhbhai Rathod who is said to be a non-Brahmin.
We are not aware about the exact community to which the said person belongs nor any such material has been placed before us that only a Brahmin can be so appointed as a Pujari and in the absence of any challenge to the said order passed by the Dy. Collector on 13.9.2017, we are not inclined to make any comment on the same.
However, if this has been the tradition to appoint only a Brahmin as a 'Pujari' of the said Mahadev Temple by the State Government so far, it is open to the State authorities to consider the said aspect of the matter and appoint some person from that community as the 'Pujari' of the said Mahadev Temple in consultation with Page 189 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
Respondent No.5 - Trust. However, we are of the clear opinion that Respondent No.4 Kalubharti Guru Vitthalbharti or anybody else have no such right to be so appointed as Pujari or Mahant (as said Mahadev Temple is not a 'Muth') for the said Mahadev Temple on the Shetrunjay Hill. On the other hand, the manner in which he is asserting his so called self assumed right and is litigating through various forums, indicates that he is not at all a suitable person to be allowed to manage the said Temple of the Mahadev Temple on Shetrunjay Hills, which management has to be kept under the overarching and supervening Rules and Regulations for the conduct of pilgrims in view of the sanctity and high divinity of entire Shetrunjay Hills for the Jain community as stipulated in various Historical evidences and in the Documents of 1877 and 1928 as aforesaid. Since these Documents are of very old period, their sanctity and validity, letter and spirit has to be maintained by the concerned State authorities also even now and in times to come.
52. Therefore, not finding any merit in the present Public Interest Litigation filed by the Petitioner - Vishwa Hindu Parishad, which Page 190 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021 C/WPPIL/180/2017 CAV JUDGMENT DATED: 19/08/2021 VISHWA HINDU PARISHAD Versus COLLECTOR, PALITANA & Ors,.
we also find to have been filed to serve the private and personal cause of Respondent No.4 - Kalubharti Guru Vitthalbharti, who is misusing the litigation forums of courts of law, for his private purposes, cannot be entertained and allowed. Therefore, the present Public Interest Litigation Petition is liable to be dismissed the same is accordingly dismissed. No costs.
(DR. VINEET KOTHARI, J) (UMESH A. TRIVEDI, J) VIPUL SATWARA/NAIR SMITA V. Page 191 of 191 Downloaded on : Fri Aug 20 00:59:35 IST 2021