IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. : 326/1994 Decided on: 21.7.2010 ________________________________________________ Shri Badri Parshad Temple Bahian Attarian through Mahant Govind Dass. …Appellant. Versus State of Himachal Pradesh and others. … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Ramakant Sharma, Advocate. For the Respondents: Mr. Vikas Rathore, Dy. A.G. with Mr. R.P. Singh, Asstt. A.G. for respondents No. 1 and 2. Mr. Rajnish K. Lal, Advocate vice Mr. K.D. Sood, Advocate for respondents No. 3 to 5. ________________________________________________________ Justice Rajiv Sharma, Judge. 1. This Regular Second Appeal has been directed against the judgment and decree dated 9.6.1994 passed by the learned Additional District Judge, Kangra at Dharamshala in Civil Appeal No.46/1992. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the predecessor-in-interest of 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 the present appellant-plaintiff (hereinafter referred to as ‘plaintiff’ for convenience sake) claimed in the suit that the land was purchased by the plaintiff through registered sale deeds dated 26.4.1976, 4.1.1978 and 30.1.1978 for the construction of the temple Badri Parshad Bahian Attarian, which is still under construction and the temple is a private temple of the plaintiff, which is not institution envisaged by the Himachal Pradesh Hindu Religious Institution and Charitable Endowments Act, 1984 (hereinafter referred to as ‘the Act’ for brevity sake). Plaintiff’s temple does not figure in the appended Schedule of the Act, as it has never been used for the benefit of the community. Temple is situated on private property purchased and as such the temple is small and funds for the purchase of land and construction of temple were raised by utilizing compensation payable to deity Thakur Badri Parshad Temple at Bathu which has submerged in Pong Dam Lake and the compensation was payable through Parshotam Chand Mohtami of deity Thakur Badri Parshad, Bathu. Respondents-Defendants (hereinafter referred to as ‘defendants’ for convenience sake) were interfering with the management of the temple on assertion that it vests with them and sought injunction prohibiting defendants from taking action in pursuance of notice issued by defendant No.2 vide letters dated 19.1.1989 and 3 23.1.1989. Defendants contested the suit on objections of jurisdiction and cause of action. It was claimed on merit that the temple was built, land was purchased out of the compensation awarded to Mandir Bathu and the temple is complete, which is fully covered within the provisions of the Act. The temple is frequently visited by public at large since many years and order dated 2.4.1986 is legal and valid. Plaintiff in the replication has stated that preliminary objections taken are wrong and it has been submitted that the land for construction of temple has been purchased from the compensation received in the Bathu Mandir, which was submerged in the Pong Dam. On the pleading of the parties, following issues were framed by the trial court on 11.2.1991: 1. Whether the plaintiff Mandir is under construction and the provision of H.P. Hindu Public Religious Institutions and Charitable Endowments Act are not applicable as alleged? OPP 2. Whether the temple in question is private temple if so whether the provision of the Act are not applicable to such type of Mandir as alleged? OPP 3. Whether the defendants/State is competent to manage the affairs of the Mandir as alleged? OPD 4. Whether this court has got no jurisdiction as alleged? OPD. 5. Relief. 3. The trial court dismissed the suit. Plaintiff preferred an appeal before the Learned Additional District Judge, Kangra 4 at Dharamshala. He dismissed the same on 9.6.1994. Hence, this Regular Second Appeal. The same was admitted on the following substantial questions of law: 1. “What is the effect of non-compliance with the provisions of section 29 (2) of the Himachal Pradesh Hindu Public Religious Institutions and Charitable Endowments Act, 1984 inasmuch as the notification has not been laid before the Himachal Pradesh Legislative Assembly to date? 2. Whether there were any circumstances justifying the issuance of impugned letter thereby including the plaintiff Temple in the Schedule attached with the Act?” 4. Learned counsel for the appellant submitted before the Court on 22.5.2004 that the person through whom the temple had sued the appeal, had died, therefore, appropriate steps for representation of the appellant were required to be taken for which four weeks’ time was allowed. However, steps for bringing on record the legal representatives of the deceased sole appellant were not taken and vide order dated 8.9.2004, appeal stood abated for want of bringing on record the legal representatives and the same was dismissed accordingly. However, order dated 8.9.2004 was recalled by this Court vide order dated 20.7.2010 and the appeal was directed to be heard today. 5. Mr. Ramakant Sharma has strenuously argued that the judgments and decrees passed by both the courts below are 5 contrary to principles of law. According to him, defendants have not complied with the mandatory provisions of sub-section (2) of section 29 of the Act inasmuch as the notification has not been laid before the Himachal Pradesh Legislative Assembly. He then contended that the temple in question is a private temple and the same could not be included in Schedule-1 of the Himachal Pradesh Hindu Public Religious Institutions and Charitable Endowment Act, 1984. 6. Mr. Vikas Rathore, learned Deputy Advocate General and Mr. Rajnish K. Lal appearing for the respondents have strenuously argued that the temple in question, i.e. Shri Badri Parshad Temple Bahian Attarian, has been included in the 1st Schedule vide notification dated 29.12.1988 published in the Gazette dated 24.4.1989. They further contended that this temple is a public temple and not private. They lastly contended that since the temple has been included in Schedule-I, the notices have been legally issued to the plaintiff by defendant No.2 on 19.1.1989 and 23.1.1989. 7. I have heard the learned counsel for the parties and have perused the record carefully. 8. Since both the substantial questions of law are interconnected and interlinked, therefore, the same are taken up 6 together for determination to avoid repetition of discussion of evidence. 9. Plaintiff has relied on various documents, including jamabandis Ex.A-1 to A-6 from 1868 to 1972-73. It is borne out from Ex.A-1, i.e. copy of Khewat Tarmim Bandobast 1868 that the temple Thakurdawara Bathu, Raja had been performing Pooja through Brahmans. He invited Mahant Ram Dass Mauz to perform Pooja. The land was gifted to Mandir Thakurdawara Bathu. Ex.A-2 jamabandi for the year 1981-82 reveals that Graha and Gelu are in possession of the property owned by Mandir Badri Vishal. In jamabandi Ex.A-3 for the year 1911-12 entries have been made whereby Thakur Badri Parshad has been shown in possession of the property. Similar are the entries in Ex.A-4, jamabandi for the year 1942-43, Ex.A-5 jamabandi for the year 1967-68 and Ex. A-6 jamabandi for the year 1972-73. Raja Sahib gifted certain land to Thakurdwara Bathu. The land was specifically gifted to temple and not to Ram Dass Mahant. The temple got submerged in Pong Dam. The compensation was awarded in the name of temple. The committee was also constituted as per Ex. PD for the purpose of reconstruction of the temple and for purchasing the land. The land for the temple was purchased vide sale deeds Ex.P-2 dated 30.3.1978, Ex.P-3 dated 30.3.1978 and Ex.P-4 dated 4.1.1978, respectively. 7 10. PW-2 Mahant Gobind Dass has testified that the temple is private and Bathu temple which is submerged in Pong Dam was also a private temple. He has obtained this information from Parshotam Maharaj, but Parshotam Maharaj was not examined. PW-5 Onkar Nath claimed the temple to be private but at the same time says that Langar is arranged in the temple for saints. He also admitted that after the installation of idol of Badri Parshad in the temple, people started visiting it. DW-2 Bhagwan Singh deposed that it is a public temple frequented by the public at large without obstruction. 11. It will be apt at this stage to go through the scheme of the Himachal Pradesh Hindu Public Religious Institutions and Charitable Endowment Act, 1984. The purpose of enactment is to provide better administration of Hindu Public Religious Intuitions and Charitable Endowments and for the protection and preservation of properties appertaining to such institutions and endowments. Sub-section (a) of section 2 of the Act defines “Charitable Endowments”. Expression “Hindu Public Religious Institution” is defined under sub-section (f) of section 2. Chapter-II of the Act provides for preparation and maintenance of registers by religious institutions. The Act applies to all the Hindu Public Religious Institutions and Charitable Endowments mentioned in the Schedule- 1, as per sub-section (3) of section 8 1. The Government has the power under section 29 of the Act, if it is of opinion that it is expedient or necessary in the public interest so to do, by notification in the official Gazette, add to, omit from the Schedule-1 any Hindu Public Religious Institution and Charitable Endowment and on any such notification being issued, the Schedule-1 shall be deemed to be amended accordingly. Sub section (2) of section 29 provides that every such notification shall, as soon as possible after it is issued, be laid before the Legislative Assembly of the State. Section 29 reads thus: “29. Power to amend Schedule-1.- (1) The Government may, if it is of opinion that it is expedient or necessary in the public interest so to do, by notification in the Official Gazette, ad too, omit from, the Schedule-1 any Hindu Public Religious Institution and Charitable Endowment and on any such notification being issued, the Schedule-1 shall be deemed to be amended accordingly. (2) Every such notification shall, as soon as possible after it is issued, be laid before the Legislative Assemble of the State.” 12. It is not in dispute that notification under section 29 (1) of the Act has been issued whereby Shri Badri Parshad Temple Bhai Attarian has been included in Schedule-I. Vide mutation No. 51 (Ex.D-3), Temple Officer, Damtal was appointed by the Commissioner as Mohtmim of the temple. Ex. DX is the copy of Rapat No. 41 dated 30.4.1989 of the Patwari showing that management of the temple was taken by the Temple 9 Officer. The revenue entries have been supported by DW-1 Om Parkash, Temple Officer and DW-2 Bhagwan Singh. Defendant No.2 has also the necessary power under the Act to issue notices dated 19.1.1989 and 23.1.1989. 13. Now, the Court will advert to submission of Mr. Ramakant Sharma that provisions of section 29 (2) of the Act have not been complied with. The Court is of the considered view that the provisions of section 29 (2) of the Act are directory. 14. Their Lordships of the Hon’ble Supreme Court in M/s Atlas Cycle Industries Limited and others versus The State of Haryana, (1979) 2 SCC 196 have held that there are two considerations for regarding a provision as directory or mandatory: (i) absence of any provision for the contingency of a particular provision not being complied with or followed, and (ii) serious general inconvenience and prejudice that would result to the general public if the act of the Government or an instrumentality is declared invalid for non-compliance with the particular provision. 15. Their Lordships have further held that policy and object underlying the provisions relating to laying the delegated legislation made by the subordinate law making authorities or 10 orders passed by subordinate executive instrumentalities before both Houses of Parliament being to keep supervision and control over the aforesaid authorities and instrumentalities, the “laying clauses” assume different forms depending on the degree of control which the Legislature may like to exercise. The questions whether the direction to lay the rules before Parliament is mandatory or merely directory and whether laying is a condition precedent to their operation or may be neglected without prejudice to the effect of the rules, will depend upon circumstances of each case or wordings of the statute under which the orders or the rules are made. Their Lordships while interpreting section 3 (6) of the Essential Commodities Act, 1955 have held that the requirement as to laying can be said to be a “simple laying” and is directory and not mandatory. Their Lordships have further held that the Legislature never intended that non-compliance with the requirement of laying as envisaged by section 3 (6) of the Act should render the order void. Their Lordships have held as under: “19. Though sub-section (6) of S. 3 of the Act provides that every order made by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament as soon as may be after it is made, the important point to be considered in the absence of analoguous statutes like the Statutory Instruments Act, 1946 and the Laying of Documents Before Parliament (Interpretation) Act, 1948 prescribing the conditions, the 11 period and the legal effect of the laying of order before the Parliament is whether the provision is directory or mandatory. It is well to remember at the outset that the use of the word 'shall' is not conclusive and decisive of the matter and the Court has to ascertain the true intention of the Legislature which is the determining factor, and that must be done by looking carefully to the whole scope, nature and design of the statute. Reference in this connection may be made to the decision of this Court in State of U.P. v. Manbodhan Lal Srivastava 1958 SCR 533 : (AIR 1957 SC 912). Reference in this behalf may also be made with advantage to another decision of this Court in the State of Uttar Pradesh v. Babu Ram Upadhya (1961) 2 SCR 679 : (AIR 1961 SC 751) where Subba Rao, J. (as he then was) after quoting with approval the passage occurring at page 516 in Crawford "On the Construction of Statutes" as well as the passage occurring at page 242 in 'Craies on Statute Law', 5th Edition, observed as follows :- "The relevant rules of interpretation may be briefly stated thus : When a statute uses the word "shall", prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the Legislature, the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstances namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and above all, whether the object of the legislation will be defeated or furthered." 12 20. Thus two considerations for regarding a provision as directory are : (1) absence of any provision for the contingency of a particular provision not being complied with or followed and (2) serious general inconvenience and prejudice that would result to the general public if the act of the Government or an instrumentality is declared invalid for non-compliance with the particular provision. 21. Now the policy and object underlying the provisions relating to laying the delegated legislation made by the subordinate law making authorities or orders passed by subordinate executive instrumentalities before both Houses of Parliament being to keep supervision and control over the aforesaid authorities and instrumentalities, the "laying clauses" assume different forms depending on the degree of control which the Legislature may like to exercise. As evident from the observations made at pages 305 to 307 of the 7th Edition of Craies on Statute Law and noticed with approval in Hukam Chand v. Union of India, (1973) 1 SCR 896 : (AIR 1972 SC 2427) there are three kinds of laying which are generally used by the legislature. These three kinds of laying are described and dealt with in Craies on Statute Law (supra) as under :- "(i) Laying without further procedure, (ii) Laying subject to negative resolution, (iii) Laying subject to affirmative resolution. (i) Simple laying. The most obvious example is in Section 10(2) of the 1946 Act. In earlier days, before the idea of laying in draft had been introduced, there was provision for laying rules etc., for a period during which time they were not in operation and could be thrown out without ever having come into operation (compare Merchant Shipping Act, 1894, Section 417; Inebriates Act 1898, Section 21) but this is not used now. (ii) Negative resolution. Instruments so laid have immediate operative effect but are subject to annulment within forty days without prejudice to a 13 new instrument being made. The phraseology generally used is "subject to annulment in pursuance of a resolution of either House of Parliament." This is by far the commonest form of laying. It acts mostly as a deterrent and sometimes forces a Minister (in Sir Cecil Carr's phrase) to "buy off opposition" by proposing some modification. (iii) Affirmative resolution. The phraseology here is normally "no order shall be made unless a draft has been laid before Parliament and has been approved by a resolution of each House of Parliament. Normally, no time limit is fixed for obtaining approval - none is necessary because the Government will naturally take the earliest opportunity of bringing it up for approval - but Section 16 (3) of the Housing (Financial and Miscellaneous Provisions) Act 1946 did impose a limit of forty days. An old form (not much used nowadays) provided for an order to be made but not to become operative until a resolution of both Houses of Parliament had been obtained. This form was used in S. 10 (4) of the Road Traffic Act. 1930 (cf. Road Traffic Act 1960, S. 19 (3).)..........The affirmative resolution procedure necessitates a debate in every case. This means that one object of delegation of legislation (viz. saving the time of Parliament) is to some extent defeated. The procedure therefore is sparingly used and is more or less reserved to cases where the order almost amounts to an Act, by effecting changes which approximate to true legislation (e.g. where the order is the meat of the matter, the enabling Act merely outlining the general purpose) or where the order replaces local Acts or provisional orders and, most important of all, where the spending, etc. of public money is affected. Sometimes where speedy or secret action is required (e.g. the imposition of import duties), the order is laid with immediate operation but has to be confirmed within a certain period (cf. Import Duties Act 1958, S. 13 (4)). This process of acting first and getting approved after has also been adopted in the 14 Emergency Powers Act 1920 under which a state of emergency can be proclaimed and regulations made. The proclamation must be immediately communicated to Parliament and does not have effect for longer than a month; but it can be replaced by another proclamation. Any regulations made under the proclamation are to be laid before Parliament immediately and do not continue in force after the expiration of seven days from the time when they are so laid unless a resolution is passed by both Houses providing for their continuance." 22. Now at page 317 of the aforesaid Edition of Craies on Statute Law, the questions whether the direction to lay the rules before Parliament is mandatory or merely directory and whether laying is a condition precedent to their operation or may be neglected without prejudice to the effect of the rules are answered by saying that "each case must depend on its own circumstances or the wording of the statute under which the rules are made." In the instant case, it would be noticed that sub-section (6) of Section 3 of the Act merely provides that every order made under S. 3 by the Central Govt. or by any officer or authority of the Central Govt. shall be laid before both Houses of Parliament, as soon as may be, after it is made. It does not provide that it shall be subject to the negative or the affirmative resolution by either House of Parliament. It also does not provide that it shall be open to the Parliament to approve or disapprove the order made under Section 3 of the Act. It does not even say that it shall be subject to any modification which either House of Parliament may in its wisdom think it necessary to provide. It does not even specify the period for which the order is to be laid before both Houses of Parliament nor does it provide any penalty for non-observance of or non- compliance with the direction as to the laying of the order before both Houses of Parliament. It would also be noticed that the requirement as to the laying of the order before both Houses of Parliament is not a condition precedent but 15 subsequent to the making of the order. In other words, there is no prohibition to the making of the orders without the approval of both Houses of Parliament. In these circumstances, we are clearly of the view that the requirement as to laying contained in sub-section (6) of Section 3 of the Act falls within the first category i.e. "simple laying" and is directory not mandatory. We are fortified in this view by a catena of decision, both English and Indian. In Bailey v. Williamson (1873) 8 QB 118) whereby S. 9 of the Parks Regulations Act, 1872 passed on June 27, 1872 "to protect the royal parks from injury, and to protect the public in the enjoyment of those royal parks and other royal possessions for the purpose of innocent recreation and exercise" it provided that any rules made in pursuance of the first schedule to the Act shall be forthwith laid before both Houses of Parliament, if Parliament be sitting, or if not, then within three weeks after the beginning of the then next ensuing session of Parliament; and if any such rules shall be disapproved by either House of Parliament within one month of the laying, such rules, or such parts thereof as shall be disapproved shall not be enforced and Rules for Hyde Park were made and published on September 30, 1872 when Parliament was not sitting and in November 18, 1872, the appellant was convicted under Section 4 of the Act for that he did unlawfully act in contravention of Regulation 8 contained in the first Schedule annexed thereto by delivering a public address not in accordance with the rules of the said Park but contrary to the statute, and it was inter alia contended on his behalf that in the absence of distinct words in the statute stating that the rules would be operative in the interval from the time they were made to the time when Parliament should meet next or if Parliament was sitting then during the month during which Parliament had an opportunity of expressing its opinion upon them, no rule made as supplementing the schedule could be operative so as to render a person liable to be convicted for infraction thereof unless the same had been laid before the Parliament, 16 it was held overruling the contention that the Rules became effective from the time they were made and it could not be the intention of the Legislature that the laying of the rules before Parliament should be made a condition precedent to their acquiring validity and that they should not take effect until they are laid before and approved by Parliament. If the Legislature had intended the same thing as in S. 4, that the rules should not take effect until they had the sanction