IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 205 of 2000 with CWPs No. 275 of 2001 & 787 of 2004. Judgment reserved on: 20.5.2009 Date of Decision: June 4, 2009 1. RFA No. 205 of 2000. Deputy Commissioner Bilaspur & ors. …Appellants Versus Jai Prakash Bhojki & Ors. …Respondents. For the Appellant(s): Mr. K.D.Sood, Advocate. Ms. Jyotsna Rewal Dua, Advocate, for D.C.Chamba. For Respondent(s): Mr. Bhupender Gupta, Sr. Advocate with Mr. Anand Sharma, Advocate, for respondents 1,2,9,29, 35(a) and 35(b). Mr. P.K Sharma, Addl. A.G. with Mr. P.M.Negi, Dy.A.G. and Mr. R.P.Singh, Asstt. A.G. for Respondents 3 to 5. M/s Bimal Gupta and Karan Singh, Advocates, for respondents 13 & 14. M/s Ramakant Sharma & Bhuvnesh Sharma, Advocate for objectors/applicants/proposed Respondents No.41 to 47 in CMP No.8/2008. 2. CWP No. 275 of 2001. Amar Nath Sharma & ors. … Petitioners. Versus. State of H.P. & ors. ..Respondents. For the Petitioner(s): Mr. Manohar Lal Sharma, Sr.Advocate with Mr. Dharamvir Sharma, and Mr. Vijay Verma, Advocates. For the Respondent(s): Mr. P.K Sharma, Addl. A.G. with Mr. P.M.Negi, - 2 - Dy.A.G. and Mr. R.P.Singh, Asstt. A.G. for Respondent No.1. Mr. K.D.Sood, Advocate with Mr. Sanjiv Sood, Advocate, for respondents 2 & 3. Mr. Vinod Gupta, Advocate, vice counsel for applicants in CMPs No. 1665 to 1667 of 2006. Mr. Ramakant Sharma, Advocate, for applicants In CMPs No. 1662 to 1664 of 2006. 3. CWP No. 787 of 2004 Surender Sharma ..Petitioner Versus. State of H.P. & ors. ..Respondents. For the Petitioner(s): Mr.Paresh Sharma, Advocate. For the Respondent(s) Mr. P.K Sharma, Addl. A.G. with Mr. P.M.Negi, Dy.A.G. and Mr. R.P.Singh, Asstt. A.G. for Respondent No.1. Mr. K.D.Sood, Advocate with Mr. Sanjiv Sood, Advocate, for respondents 2 to 8. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Per- Surjit Singh, J. The present Regular First Appeal and two writ petitions are being disposed of by a common judgment, even though the issues raised therein are not similar nor even closely related. The reason is that by order dated 22.5.2007, passed in RFA No. 205 of 2000, a Committee was constituted to suggest ways and Whether reporters of the local papers may be allowed to see the judgment? - 3 - means for reducing the expenditure of temples, included in Schedule-I to the Himachal Pradesh Hindu Public Religious Institutions and Charitable Endowments Act, 1984, and the said Committee submitted the report in respect of each and every temple, included in the said Schedule and only three of such temples are party to the present RFA and the two writ petitions. After the report was submitted, it was felt that the management of each and every temple affected by the report needed to be heard and, therefore, notices were issued to all the temples, some of whom have filed their responses/objections to the report of the Committee. An order was passed by the Hon’ble Chief Justice on 12.11.2007, in RFA 205 of 2000, that all these three matters be heard by a Division Bench, keeping in view the importance of the issues involved. As already noticed, facts of the three cases are different and so, we proceed to summarize them individually. 1. RFA No. 205 of 2000. In the year 1987, respondents No. 1 and 2, Jai Prakash Bhojki and Pawan Kumar Bhojki, filed a suit in this Court for a declaratory decree that Section 18 of the H.P. Hindu Public Religious Institutions and Charitable Endowments Act, 1984 was ultra vires of the Constitution of India and that order dated 10.12.1985, passed by the Divisional Commissioner, impleaded - 4 - as one of the defendants, appointing new trustees of Shree Naina Devi shrine, in place of existing hereditary trustees, was illegal and that order dated 15.5.1987, passed by the Deputy Commissioner, Bilaspur, also impleaded as defendant, affecting the rights of the Bhojkis to share the income of the shrine, was also illegal. During the pendency of the suit in this Court, pecuniary jurisdiction of the District Judges was enhanced to a limit higher than the value of the suit. So, the suit was transferred to the District Judge. Learned District Judge recorded the evidence and also heard the arguments in the matter and reserved the judgment. Pending pronouncement of the judgment, parties approached the Court of District Judge that they had entered into a compromise and requested for recording the compromise. Learned District Judge then recorded the statements of the parties and passed a consent decree apportioning the income of the shrine, between the trust and the Baridars, who had filed the suit. It may be stated that the suit was filed in a representative capacity, by respondents Jai Prakash Bhojki and Pawan Kumar Bhojki and, therefore, as per requirement of Order 1 Rule 8 CPC, notices had been issued to all those, who were sought to be represented by the respondents- plaintiffs. Some of the - 5 - persons sought to be represented, applied for being impleaded as proforma - respondents. Others, numbering about eighty, did not appear and were represented by the aforesaid two respondents- plaintiffs. This appeal has been filed by the Deputy Commissioner, Sub Divisional Magistrate, Tehsildar and Naina Devi Trust, who were party to the compromise. They have challenged the consent decree on the grounds that provision of Order 1 Rule 8 CPC had not been complied with, in as much as, notice of the compromise had not been given to the persons represented by the respondents-plaintiffs, as per requirement of sub-rule (4) of Rule 8 of Order 1 CPC. Another ground, on which the decree is assailed, is that the leave of the Court having not been obtained, the compromise on which the decree is based, is void as per provisions of Rule 3B of Order 23 of the Civil Procedure Code. 2. CWP No. 275 of 2001. This writ petition has been filed by some of the Shamlat holders of village Chakmoh, on a portion of whose Shamlat land, temple of Baba Balak Nath in village Deoth Sidh, Tehsil Barsar, District Hamirpur, stands. The temple stands on a piece of land measuring 3 kanals 6 marlas, bearing khasra No. 918, Tikka Chakmoh. The petitioners have sought issuance of the following directions:- - 6 - (i) “Directing the respondents 1 to 3 to determine and calculate the share of the share-holders of Baba Balak Nath Temple Trust on the basis of the share provided in Wazib-Ul-Urj which has been entered in the Revenue Record and has been accepted by the State Government vide its letter dated 19.1.1998. (ii) Directing the Respondents No.1 to 3 to calculate and pay the arrears of the shares to the share holders as provided under the Wazib-Ul-Urj. (iii) Directing the respondents to give more representation to the share holders of Baba Balak Nath Temple Trust while appointing the trustees of the BBNT, so that they may take proper participation in the decision making process for the better management of the Baba Balak Nath Temple and acts of malfeasance and mismanagement can be stopped. (iv) Directing the respondents 1 & 2 to appoint non official trustees out of share holders. (v) Directing the respondents 1 to 3 not to spend the funds of Baba Balak Nath temple for other purposes which are not meant for the better management of the temple. - 7 - (vi) Directing the State Government to appoint an Inquiry Commission to find out management of the funds of the Baba Balak Nath Temple. (vii) Entire relevant record of the case may kindly be ordered to be summoned from the respondents for the kind perusal of this Hon’ble Court. (viii) Cost of the writ petition may also kindly be awarded in favour of the petitioners and against the respondents 1 to 3. (ix) Any other writ, order or direction as this Hon’ble Court may deem fit and proper in view of the facts and circumstances of the case may also kindly be passed in favour of the petitioners and against the respondents.” Factual matrix as stated in the petition, is as follows. Initially, there was only a cave of Baba Balak Nath in Tikka Chakmoh. Sometime in the year 1911, a temple was raised on khasra No.918, which was part of Shamlat land. There is an entry in the Wazib Ul Urj, prepared during in the settlement of 1912-1913, with regard to apportionment of income from offerings made at the temple. According to the entry, income is to be shared by the following as per share mentioned against their names:- - 8 - Sr. No. Name of the shareholder Share of the income. 1. Mahant Balram Giri 6 Annas 6 pies 2. Bhandari 3 Annas 3. Gussain 2 Annas 2 pies 4. Estate holders/ Shamlat holders 4 Annas 4 pies. After the enforcement of H.P. Public Religious Institutions and Charitable Endowments Act, 1984, (hereinafter referred to as the Act), Deputy Commissioner, appointed twenty two trustees by notification dated 23.1.1987, for a period of five years. On the expiry of the term of those trustees, another notification dated 22.1.1992, again appointing 22 persons was issued, but in this notification only nine hereditary trustees were included. Estate holders of Tikka Chakmoh were aggrieved by this notification as the members of hereditary trustees were reduced to minority. They challenged the notification by filing a writ petition in this Court. That was dismissed by this Court. Estate holders filed SLP in the Hon’ble Supreme Court. When the SLP came up for hearing, it was stated by the counsel for the petitioners that fresh notification appointing the trustees has been issued. So, the SLP was dismissed. - 9 - On April 10, 1997, a notification appointing 20 trustees was issued and representation was given to the estate holders. Later on, thirteen more trustees were appointed in the year 1999, at the instance of Shri Baldev Sharma, a local MLA. These appointments were contrary to the provisions of the Act. The trust started squandering the income of the temple by spending it on activities, unconnected with the management and affairs of the temple and wasteful expenditure. In the meeting held on 1.7.1999, money was sanctioned for installation of 15 hand- pumps in the villages of the trustees; Rs.1.6 lacs were sanctioned for making addition of two rooms to the school building in village Bahal; rupees ten lacs were sanctioned for financial relief to the friends and relatives of the trustees, appointed at the instance of the MLA; Rs.5,000/- were spent for raising a platform in village Tyala; rupees one lac were sanctioned for construction of rain shelter in Garh Chowk, Bijhar and rupees ten lacs were sanctioned for repair of Talai- Barsar Road. Sanction was also accorded for addition of six rooms to Government schools. Rs.40,000/- were sanctioned for Sub Tehsil, Bijhar. Several other instances of mis-utilization of funds to the tune of several lacs of rupees have also been listed in the petition. Also, it is alleged that funds are misappropriated by the employees of the trust and that the staff - 10 - in excess of the sanctioned strength and actual recruitment is being made at the instance of the MLA and his nominated trustees. In reply, the respondents have denied allegations of mismanagement of the temple and wasting of the income of temple. As regards the claim of the petitioners for their share in the income, on the basis of entry in the Wazib –Ul-urj, it is alleged that the Shamlat land, on which the temple stands, has vested in the State of H.P., by virtue of the provisions of Himachal Pradesh Village Common Lands (Vesting and Utilization) Act, 1974, and so, under the provisions of that Act, the right, title or interest of the petitioners and other estate holders in the land, on which the temple stands, has extinguished. 3. CWP No. 787 of 2004. This petition is in the nature of Public Interest Litigation (PIL). Reliefs claimed in the petition are as follows:- (i) “That the respondent-State may be directed to take over the Temples included in Schedule-I of the Himachal Pradesh Hindu Public Religious Institutions and Charitable Endowments Act, 1984 as well as other important Temples throughout the State of H.P. and to take effective steps for proper - 11 - management and administration of the same by constituting independent statutory Boards; (ii) That the respondent State may be directed to take effective steps for efficient and proper administration and management of the Hindu Public Religious Institutions and Charitable Endowments throughout the State of HP; (iii) That this Hon’ble Court may issue mandamus to the respondent State to comprehensively legislate for proper administration and management of Himachal Pradesh Hindu Public Religious Institutions and Charitable Endowments at the earliest; (iv) That the respondent State may be directed to frame a scheme for the rehabilitation of the Pujaris/Baridars and other staff working in all the Temples in the State of H.P. including the Temples, which have been included in Schedule-I of the Himachal Pradesh Hindu Public Religious Institutions and Charitable Endowments Act, 1984; (v) That this Hon’ble Court may abolish the hereditary offices of Pujaris/Baridars working in the Temples included in Schedule-I of the Himachal Pradesh Hindu Public Religious Institutions and - 12 - Charitable Endowments Act, 1984 through the State of H.P.; (vi) That the respondent State may be directed not to distribute any share to the Pujaris/Baridars out of the offerings made by the devotees in the Temples; (vii) That the respondent State may be directed to regulate appointment of Pujaris/Baridars and also to determine their terms and conditions of service including pay and salary; (viii) That the respondent State may further be directed to frame a scheme to provide the Pujaris/Baridars and other employees and their family members with suitable accommodation, education to their children etc; (ix) That this Hon’ble Court may constitute a Tribunal to be presided over by the retired Judge of the High Court for working out the modalities for payment of one time compensation to the Pujaris/Baridars of the Temples throughout the State of H.P.; (x) That any other relief as may be deemed just and proper keeping in view the facts and circumstances of the case may also be granted in favour of the petitioners.” Facts on which the aforesaid reliefs have been claimed, are that a major portion of income of the temples, included in - 13 - Schedule-I of the Act, is being appropriated by the hereditary Pujaris, Baridars and estate holders and that in fact income belongs to the temple and the devotees and whole of it should be spent on the affairs of the temple and providing more facilities to the devotees/visitors and the right, title or interest, if any, of the estate holders, Baridars, etc. be abolished by enacting laws, as has been done by some other States, particularly the State of Andhra Pradesh, State of Jammu & Kashmir, State of Uttar Pradesh and State of Orissa. It is alleged that the Acts passed by the aforesaid States for taking over of the temples and abolition of the hereditary rights of Pujaris, Baridars, etc., to share the income of temples has been upheld by the Supreme Court. It has further been stated that this Court in CWP No. 603 of 2003, titled Kailash Chand versus State of H.P. & another, had directed the Deputy Commissioner to submit prospective plan for Chintpurni Temple and after the plan was submitted by the Deputy Commissioner, State Government was called upon to file its response. Chief Secretary, in the response expressed inability of the State Government to introduce a separate legislation for abolition of the rights of Baridars, Pujaris etc, by providing one time compensation - 14 - and/or providing rehabilitation package, as suggested by the Deputy Commissioner. In the reply filed by the State-respondent, it is stated that an Act called H.P. Hindu Public Religious Institutions and Charitable Endowments Act, 1984, already stands passed for better management and upkeep of the important temples in the State and separate management committees, headed by Deputy Commissioners have been appointed in respect of each temple and those committees are taking care of the needs and requirements of devotees and visitors and are providing all kind of facilities, including shelter and Langar. As regards apportionment of the income of the temple, it has been stated that Baridars and Pujaris of Jawala Ji, Mata Shree Naina Devi Ji, Chintpurni Ji, Sri Baba Balak Nath, Deothsidh, Sri Jawala Ji Sri Brijeshwari Devi temple at Nagrota (Kangra), are paid 50% of cash offerings, after deducting the primary expenditure on Puja Archana, Sanskrit College, Schools, Dispensaries, Langar etc, as per decision taken by the Deputy Commissioner in the meeting held on 10.8.1987, under the Chairmanship of Financial Commissioner-cum- Secretary (LAC), and that in the case of Baba Balak Nath temple, shares are being released in accordance with the entry in Wazib-ul urj - 15 - RFA was listed before the Hon’ble Chief Justice on 30.3.2007, when the appellants were directed to file replies supported by their affidavits to an application moved by respondents and it was specifically directed that besides replying to the averments made in the application, frequency of the meetings of the trust and the staffing pattern of the temple vis-à-vis requirements alongwith the salary structure of the staff would be indicated. Matter was ordered to be listed along with CWP No.787 of 2004 on 30.4.2007. Ultimately, on 22.5.2007 an order was passed in the said RFA, appointing a Committee of five named persons, one of whom was ex-Chief Secretary and four others serving IAS officers. In addition to that, Deputy Commissioner of the concerned District was made ex- officio member. Committee was required to submit its report about the ways and means to be adopted for better management of the temples, included in Schedule I of the Act and also to report about requirement of staff for each temple and the staff actually employed. The Committee submitted its report and thereafter notices were ordered to be issued to all the temples and their managements, seeking their response/replies/ objections to the report. Following temples have filed replies/ objections to the report:- 1. Baba Balak nath Mandir, Deoth Sidh Objections have been filed by the Deputy Commissioner, Hamirpur. - 16 - 2. Naina Devi Ji Mandir Objections have been filed separately by Baridars and Deputy Commissioner, Bilaspur. 3. Chintpurni Mata Mandir Objections have been filed separately by Pujari and the Deputy Commissioner, Una. 4. Mahamaya Balasundari Ji temple, Trilokpur. Objections have been filed by Deputy Commissioner, Nahan. 5. Mahashiv Mandir Ambota Objections have been filed by Deputy Commissioner, Una. 6. Shoolini Mata Mandir, Solan Objections have been filed by Deputy Commissioner, Solan. 7. Bhimakali Mata Mandir Sarahan Objections have been filed by Deputy Commissioner, Shimla. 8. Durga Mata Mandir, Hatkoti Objections have been filed by Deputy Commissioner, Shimla. 9. Tara Devi Mata Mandir, Tara Devi Objections have been filed by Deputy Commissioner, Shimla. 10. Sankat Mochan Mandir, Tara Devi Objections have been filed by Deputy Commissioner, Shimla. 11. Hanuman Mandir, Jakhu, Shimla Objections have been filed by Deputy Commissioner, Shimla. 12. Vijat Maharaj Mandir, Sarahan, Objections have been filed by Deputy Chopal. Commissioner, Shimla. 13. Hanogi Mata Mandir, Hanogi Objections have been filed by Deputy Commissioner, Mandi. 14. Navehai Mata Mandir, Objections have been filed by Deputy Sarkaghat, Commissioner, Mandi. In the replies, almost all the Deputy Commissioners – cum-Temple Commissioners, have though agreed with the recommendations of the Committee that the practice of sharing the income of the temples, by the Baridars, Pujaris and share- holders, be done away with, in a phased manner, they are not in favour of reduction of staff. Some of them have suggested that the Deputy Commissioners or Temple Managements should have the power to take decision, with regard to staffing pattern and increase/decrease in the staff strength, based on actual requirement. - 17 - Objections have also been filed by Bhojkis of Naina Devi Ji Temple, who are sharing the income through offerings. Their plea is that they have a vested right, which has been in existence for the last more than 100 years. Also, it is their plea that they were not heard by the Committee, while preparing its report and making recommendations. Pujaris of Chintpurni Temple, who too share the income from offerings of the temple, have also filed objections. Their plea is that the recommendations of the Committee do not bind them, as their rights are well recognized and they have been working as Pujaris since times immemorial. They have stated that the views expressed by the Committee or the Deputy Commissioners cannot take away their vested rights. One miscellaneous petition has been filed by a teacher of Baba Balak Nath, Post Graduate College, Chakmoh. He is aggrieved by the recommendations of the Committee regarding reduction of staff of the college he is employed in. Taking cue from the observations of this Court made in the order dated 22.5.2007, regarding constitution of Committee, the Committee has stated in para 1.5 of the report that the entire income of the temples has to be expended for public purpose. The Committee has spelt the following items of the expenditure, for public purpose: - 18 - i) Puja Archana. ii) Conduct of various religious ceremonies. iii) Preparing and distributing Prasad. iv) Publishing religious literature. v) Upkeep of the temple complex. vi) Creation of facilities for the benefit of the pilgrims such as Sarais, toilets, street lights, sewerage system, parkings, bathrooms, information centres, drinking water supplies etc. vii) Infrastructure for the benefit of the pilgrims like roads, paths etc. viii) Providing langar (free meal). ix) Supporting Gau Sadans/anath ashrams/old age homes. x) Providing grant to charitable and educational institutions, benefiting local people. xi) Scholarships to the students particularly for higher and professional colleges. xii) To support other small temples in the vicinity. Three items of expenditure have been stated to be not for public purpose. The same are as follows:- 1. The share being given to the Baridars. 2. Expenditure incurred on procuring vehicles not being used for temple activities. 3. The expenditure on surplus staff. The Committee has recommended that system of distributing part of the income among Baridars/estate holders etc. be done away with, in a phased manner, and no vehicle - 19 - should be purchased, for being used for a purpose not connected with the activities of the temples and the charitable institutions, run by the temples. The committee has also recommended for reducing the staff of some of the temples. Temple-wise detail of the staff presently employed for the purposes of temples and other institutions, run by the temples, and the actual requirement of the staff, in the estimation of the Committee, in respect of each temple, has been given in the report. Having heard the learned counsel for the parties to the RFA and the two writ petitions as also the counsel for Baridars and other persons, who have filed objections to the report, we are of the considered view that the matter regarding sharing of the income/offerings of the temples, etc., by the Baridars, estate holders, etc., cannot be the subject of judicial verdict. It is for the State to take a policy decision in the matter by enacting an appropriate law or formulating a scheme. Courts cannot direct the Executive wing of the State to take a policy decision nor can it direct the legislature to enact law on any particular subject. It is quite likely that in some cases, Baridars, Pujaris, estate holders and Bhojkis have acquired a right to share the income of the temple or they may be having any interest in the temple properties and because of that they may have to be - 20 - compensated, before their right or interest is put to an end. Therefore, we refrain from passing any order qua the suggestions/recommendations of the Committee for abolishing the practice of sharing the income/offerings of the