IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1908 of 2009 DRIGONMESHWAR, Son of Late Vaidya Sita Ram Resident of Harding Road, at present Kaushalnagar, P.S. Sachivalya Town and District Patna ….. Petitioner Versus 1. THE STATE OF BIHAR 2. The Collector, Patna District Patna …… Opposite Parties ----------- For the Petitioner : In Person For the State : Mr. Lalit Kishore, A.A.G. III ------- 21 17.9.2010 This civil revision is directed against the order dated 3.8.2009 passed by the District Judge, Patna, in Misc. Case No. 144 of 2009, whereby the miscellaneous petition filed by the petitioner under Section 151 of the Code of Civil Procedure read with Rules 459, XV(a) of the Civil Court Rules for issuance of an order for construction of the temple standing on plot nos. 1099 and 1098, which was earlier demolished by the District Magistrate, Patna, by forcibly removing the petitioner therefrom on 15.3.2006, has been dismissed as not maintainable. Heard the petitioner in person and Mr. Lalit Kishore, learned Additional Advocate General III, for the State. 2 Petitioner has stated in his revision application that the plot nos. 1098 and 1099 appertaining to khata nos. 48 and 49, respectively, Tauzi no. 5140, situated at Mauza Dhirechak, P.S. Phulwari, District Patna, were recorded in the name of Chulhan son of Guru Deyal in the cadastral survey khatian. On 25.8.1911 the grandfather of the petitioner, namely, Sri Jugal Sao purchased the aforesaid property from the recorded tenant and came in possession. Since Jugal Sao was man of religious nature, he had constructed a temple over the aforesaid plots and during his life time Jugal Sao worshiped in the said temple along with other people of the locality. Petitioner after death of said Jugal Sao was coming in the peaceful possession of the aforesaid temple as Pujari and Sevait of the said temple, which is private temple of his family. It was contended by the petitioner during the course of hearing that the State of Bihar has illegally claimed the aforesaid plots without any document of title and possession in their favour and illegally by force demolished the temple on 15.3.2006 for which a writ petition bearing C.W.J.C. No. 6444 of 2005 was filed 3 by the elder brother of the petitioner, namely, Gowardhan Pujari. In the said writ petition a report was called for from the District and Sessions Judge, Patna, which was submitted before the Court. However the said petition was ultimately withdrawn. Thereafter, the petitioner again filed C.W.J.C. No. 4987 of 2006. In the aforesaid writ petition, it was noticed by a Bench of this Court that the report of the District and Sessions Judge reflects that the demolished temple was on plot nos. 1099 and 1098 and so far as plot nos. 1195 and 1196 are concerned, there existed a Government Bungalow for over seventy years and there was no sign of any demolition. In that context, it was noticed that only difference in the writ petition from the earlier one that it had been filed by the younger brother whereas the earlier one was filed by elder brother. However, it appears that when he was confronted with those reports, the writ petitioner withdrew the writ petition to take appropriate steps before the appropriate forum. The petitioner then filed the miscellaneous case as aforesaid. The petitioner has described himself as the 4 priest of Drigonmeshwar Math in the Miscellaneous Case no. 144 of 2009 filed before the District and Sessions Judge. However, before this Court a stand had been taken by the petitioner that in view of the statutory provisions under the Place of Worship (Special Provisions) Act, 1991 (hereinafter referred to as “the Act”) the religious character of places of worship was bound to be maintained, which was existing on 15th Day of August, 1947 as per the provisions under Section 4. It was also submitted that according to the provisions of the Act, any suit, appeal or other proceedings with respect to conversion of the religious character of any place of worship existing on the 15th Day of August, 1947, if pending before any court, tribunal or other authorities, would abate, and no suit , appeal or other proceeding with respect to any such matter would lie on or after the date of commencement of the Act, before any court, tribunal or other authority. It was contended that the act of the State Government would be covered under the definition of Section 2 (b) of the Act as it includes alteration or change of whatever nature of the religious place, thus, 5 the religious character of the temple was bound to be maintained. However, the same had been demolished by the State in complete violation of the provisions as contained in Sections 3 and 4 of the Act. Since Section 4(2) of the Act bars filing of any suit or proceeding with respect to conversion of religious character of any place of present, and the writ petition had been withdrawn for taking any other recourse, the only remedy available to this petitioner was by filing miscellaneous petition under Section 151 of the Code of Civil Procedure otherwise the petitioner would remain remediless as under the Act there is no provision for any remedy if there has been violation of the provisions as contained in Sections 3 and 4 of the Act, though there is provision for punishment for contravention of the provisions as contained in Section 3 of the Act which stands provided under Section 6 of the Act. It had also been submitted that as per Section 7, this Act has overriding effect upon other enactment. Mr. Lalit Kishore, learned A.A.G. III, submitted that the District Judge has not decided the case on its merit rather the case has been dismissed on 6 account of the same being not maintainable. It had been contended that there is no flaw in the order passed by the District Jude as the word “other proceedings” as described under the Act would also include any proceeding before the District Judge. That apart, it had been submitted that though filing of suit is barred under Section 4(2) of the Act, however, a declaratory suit for declaration of right, title and interest of the petitioner upon plot nos. 1098 and 1099 would not be barred. Learned counsel had placed reliance upon a decision of the Bombay High Court in Yusuf Ajit Shaikh v. Spl. Land Acquisition Officer, AIR 1994 Bombay 327. In this regard, reliance had also been placed upon a decision of the Apex Court rendered in Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma, 1995 Supp (4) Supreme Court Cases 286. Now the question for determination in this case would be : “Whether a proceeding before the District Judge in Miscellaneous Case No. 144/2009 was maintainable or not ?” The District Judge, Patna in the impugned 7 order dated 3.8.2009 has held that the petitioner wants that the temple situated on the plots in question before its alleged illegal demolition by the Collector, Patna on 15.3.2006, be restored in its earlier form but filing of a petition under Section 151 of the Code of Civil Procedure read with Rules 459, XV(a) of the Civil Procedure would not a proper forum for redressal of such grievance of the petitioner. A copy of the petition filed before the court below has been brought on record as Annexure 4. However, there is no averment in the aforesaid petition regarding applicability of this Act in relation to the temple in question. The petitioner has not shown as to how the provisions mentioned in his present application (in the supplementary affidavit) would be applicable in that instant case. Even if it is assumed that the provision of the Act has got some application in this case, in that case also petitioner has not been able to demonstrate as to how a bar created under Section 4 of the Act for filing any suit or proceeding in this matter would not bar the jurisdiction of the District Judge also. If the submissions made on 8 behalf of the State is accepted to the extent that a provisions as contained under Section 4 of the Act cannot be read in a manner so that it will create a bar of filing of even a declaratory suit, in that case also a remedy would be by filing a civil suit not by filing a miscellaneous case before the District Judge under Section 151 of the Code of Civil Procedure. Under Section 2(C) of the Act definition of places of worship has been provided. It would be useful to quote the same as under: “2 (c) “places of worship” means a temple mosque, gurudwara, church, monastery or any other place of public religious worship of any religious denomination or any section thereof, by whatever name called.” From perusal of the aforesaid provision it appears that this Act has got application on places of worship, temple, mosque gurudwara, church, monastery or any other place of „public religious worship only‟. In the opinion of this Court, the legislature has not intended to include private temple or properties into the ambit of this Act. Having said so now it would be 9 pertinent to examine the case of the petitioner as to whether his case is regarding a private temple or a public trust or temple or religious places. From the averments made in this application as well as miscellaneous case (Annexure 4), it appears that the case of the petitioner is that the concerned temple was private temple and he was serving therein as sewait. Though in paragraph 5, it has been stated that the family of the petitioner used to worship in the said temple along with other people of the locality, however, in paragraph 6, it has been specifically mentioned that the petitioner has become sewait of the temple, which is a Private Hindu Religious Temple. This is not the case of the petitioner that the temple is a public trust registered under Bihar Hindu Religious Trust Board. In above view of the matter, as has been held as aforesaid, this Act being applicable in the case of places to public religious worship only, in the opinion of this Court, the same would have no application with regard to the temple of the petitioner which is admittedly a private temple. Once it is held as such, 10 the bar created either by section 9 of the Code of Civil Procedure or by Section 4(2) o the Act would not operate and the petitioner would definitely have a remedy of filing a regular suit before the Court of competent jurisdiction. In above view of the matter, this Court is of the opinion that the petitioner could not show as to how the District Judge could have entertained the miscellaneous judicial application and should have proceeded to dispose of the case on its own merit. The petitioner could not point out any error in the order impugned. As a result, this civil revision is dismissed. Spd/- ( Dr. Ravi Ranjan, J.)