CWP No. 1611 of 1999 ::-1-:: IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 1611 of 1999. [O&M] Date of Decision: 7th February, 2011. Pran Nath & Ors. Petitioners through Mr. D.S.Bali, Sr. Advocate with Ms. Shweta Bawa and Mr. Salil Bali, Advocates. Versus State of Punjab & Ors. Respondents through Ms. Sudeepti Sharma, DAG, Punjab for respondents No. 1 to 3. Mr. Harminder Singh, Advocate, for respondent No.4. CORAM: HON'BLE MR. JUSTICE SURYA KANT. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? SURYA KANT, J. [ORAL] The petitioners seek quashing of the order dated 31st July, 1995 [Annexure -4] passed by the Collector, Gurdaspur which has been further upheld in appeal and revision by the Commissioner, Jalandhar Division, Jalandhar and the Financial Commissioner, Punjab vide their respective orders dated 10th July, 1997 and 20th April, 1998. The controversy pertains to the management of Shivala Shivji Maharaj Temple and the land the title of which vests in the deity, situated in village Kalanur, Tehsil & District Gurdaspur. [2]. The undisputed facts are that agricultural land measuring more than 66 kanals 6 marlas plus 37 kanals 11 marlas is owned by Shivala Shivji Maharaj, out of which land measuring 37 kanals 11 marlas was given by the Gram Panchayat of the village whereas the land measuring 66 kanals 6 marlas was released as a Muafi during CWP No. 1611 of 1999 ::-2-:: the Mughal regime vide IS No. 5044 dated 30th September, 1856. The Muafi [Annexure P-1] was conditional as it was granted to Shri Thakar Nath who as the then Mahant of the temple 'for maintenance of the temple', and 'subject to good behaviour and payment of 1/4th revenue to Butty Nath and Gulab Nath, who were his co-sharers'. The temple and its properties have been 'heredited' by the legal heirs of Thakar Nath, Butty Nath and Gulab Nath, some of whom are the petitioners herein. The share of a Muafidar as and when he died has gone into the hands of his legal heirs but without effecting the title or ownership of the Shivala Ji Maharaj, namely, the deity. [3]. Some of the villagers are said to have formed the Shivala Prabandhak Committee – respondent No. 4 who approached the District Collector, Gurdaspur for appointment of a new Mohtmim, inter-alia, alleging mismanagement of the temple affairs by the petitioners. It was after one or two contentious rounds of litigation at the Collector's level only that the impugned order dated 31st May, 1995 [Annexure P-4] came to be passed by the Collector, Gurdaspur holding that the petitioners have already 'wasted' and 'misused' the Shivala properties for their personal benefits completely neglecting the maintenance of Shivala. The Collector found that the members of the so-called Managing Committee including the Sarpanch of the Gram Panchayat were also amongst the “grabbers of the temple properties” and were “in illegal occupation of the Shivala properties”. The Collector accordingly directed that the land given by the Gram Panchayat to the temple shall revert back to the land given for the benefit of the residents of the village and the remaining land measuring 66 kanals 6 marlas granted to the deity for its CWP No. 1611 of 1999 ::-3-:: maintenance should be resumed by the Government. He further recommended the grant of `50,000/- per annum for the maintenance and up-keep of the Shivala. [4]. The petitioners as well as respondent No. 4 felt aggrieved and preferred their respective appeals to the Commissioner, Jalandhar Division, Jalandhar who vide his order dated 10th July, 1997 [Annexure P-5] substantially modified the order of the Collector and held that since the Shivala is a temple visited by lacs of devotees, it should be maintained by a Committee to be elected by the Sub Divisional Magistrate, Gurdaspur with the concurrence of the Deputy Commissioner and the unauthorized occupants should be expelled from such a Committee. He, however, allowed the properties to be retained by the temple but the same were directed to be maintained by a 11 Member Committee to be constituted in the manner, noticed above. [5]. Aggrieved, the petitioners preferred a revision petition before the Financial Commissioner, Punjab, who vide the impugned order dated 02nd September, 1998 [Annexure P-7] took yet another view and relying upon certain provisions of the Punjab Land Administration Manual, 1972 observed that the temple and its properties were in the hands of the persons with 'bad character' and while modifying the order of the Commissioner directed that the temple affairs were to be managed by a Mohtmim only who shall be appointed by the Collector. It was further directed that firstly the Collector shall consider the legal heirs of the Muafidars and if none of them is found suitable, then the Collector may appoint an outsider. [6]. It would thus be seen that the Collector, Commissioner CWP No. 1611 of 1999 ::-4-:: and the Financial Commissioner, all three gave drastically different verdicts in relation to the mode and manner of management and up- keep of the properties of the Shivala. [7]. The question that arises for consideration is as to who is the Competent Authority to resolve the disputes regarding the management and affairs of the properties vested in a religious deity and what shall be the procedure to be followed for such adjudicatory process? [8]. I have heard learned counsel for the parties and perused the records. [9]. With reference to the questions posed herein above, it may be noticed that the Financial Commissioner, Punjab has referred to Clauses 176 to 179 of the Punjab Land Administration Manual, 1972 which find mention in the Chapter pertaining to 'Assignment of Land Revenue” of the said Manual which was compiled by Sir James McC. Douie, an ICS Officer in the pre-independence era and has been later on re-printed by the Punjab Government in the year 1972. There is indeed no dispute that the Land Administration Manual is only a compilation of the administrative instructions issued to the Revenue Officers from time to time and is not statutory in character. [10]. The Chapter 'Assignment of Land Revenue' deals with the registration of the heirs; succession to small 'grants' for service; succession to small 'grants' assigned for institutions etc. It also provides resumption of such 'assignments' in the event of 'breach of conditions' [clause 176] as also 'breach in case of 'assignment' for the support of religious institutions' [Clause 177]. It also imposes a precondition of loyalty and good conduct [Clause 178] as well as the CWP No. 1611 of 1999 ::-5-:: power to forfeit the assignment for flagrant misconduct [Clause 179]. The contents of the executive orders compiled in the Manual might throw some light for regulating and to govern the properties given by way of 'assignment' or 'grant' but can not be appiled ipso-facto to those given by way of Muafi. A fine distinction between 'Muafi' and 'assignment' has been drawn by the Hon'ble Supreme Court in Begum Suriya Rashid & Ors. V State of Madhya Pradesh, [1969] SCR, 869 explaining that while the Muafi is a 'remission of land revenue', the latter also known as Jagir is an 'assignment' of the 'land revenue' of the grantee. In other words, in the case of Muafi the property is exempted for the purpose of levy or recovery of any land revenue; the latter is an authorization to recover and appropriate the 'land revenue'. The provisions of the Punjab Land Administration Manual could not be pressed into aid by the authorities to intermeddle into the affairs of the Shivala in the instant case. [11] There is nothing on record to suggest that the executive orders contained in the Manual were in existence in 1856 when the Muafi was granted or it was granted subject to these dictates. [12]. The impugned orders to the extent of reliance placed upon the Punjab Land Administration Manual can not be sustained. [13]. The only Statute referred to in the present context is the Religious Endowment Act, 1863 whereunder in the event of any dispute regarding the management of the Trust property, the only recourse available to an aggrieved person is to approach the Civil Court. [14]. There is indeed no dispute that in a case of alleged breach of an express or constructive Trust of religious nature, the CWP No. 1611 of 1999 ::-6-:: interested and aggrieved parties are entitled to approach the civil Court under Section 92 of the Code of Civil Procedure in a representative capacity seeking the reliefs like removal of any trustee, appointment of trustee, vesting of the property in a trustee or delivery of possession of any trust property as well as to direct accounts and inquiry etc. The provision enables the Civil Court even to alter the original trust and to allow such property or income or any portion thereof to be applied for the purposes other than for which the Trust was constituted, subject to the restrictions imposed in sub- Section [3] of the provision ibid. [15]. The Muafi granted in the case in hand on 30th September, 1856 [Annexure P-1] is also conditional and subject to good behaviour of the Mohtmim. The expression 'good behaviour' in the context of the management of an idol/deity is of wide amplitude and shall include varied activities including the personal conduct and character of the Mohtmim and his family, their behaviour towards the devotees, the manner of maintaining the deity, the proper management of the properties, accountability of the income drawn, the expenditure incurred on the development and welfare of the Trust and facilities being provided to the devotees etc. The good behaviour, as a pre-condition, must ensure that the immovable properties vested in the deity are maintained to the satisfaction of its devotees. Any abrasion or deviation shall be a breach of the constructive trust created for the public purposes within the meaning of Section 92 CPC and give rise to a 'cause of action' to the Advocate General or the public representatives, as the case may be, to initiate the civil suit in a representative capacity. Even if it is CWP No. 1611 of 1999 ::-7-:: assumed that the Punjab Land Administration Manual is applicable, its violation would be nothing but a misconduct of the Mohtmim and, in turn, the breach of an 'express' trust created for the public purposes enabling the aggrieved person[s] to invoke the remedy under Section 92 CPC. [16]. As a sequel to the above discussion, there can be no escape but to hold that the revenue authorities or the District Administration could not have assumed the role of a Civil Court in relation to the removal or appointment of a Trustee [Mohtmim] in the purported exercise of their executive powers under the Punjab Land Administration Manual. This shall, however, not be taken as disapproval of the allegations made by them against the petitioners. [17]. For the reasons afore-stated, the writ petition is allowed, the impugned orders dated 10th July, 1997, 20th April, 1998 and 02nd September, 1998 [Annexures P-5 to P-7] are hereby quashed. [18]. Learned State Counsel points out and rightly so that in the wake of the allegations of misappropriation of the properties and proceeds of the deity, these properties or other assets need to be safeguarded by this Court so as to meanwhile enable the aggrieved persons to approach the Civil Court. It is accordingly directed that no sale deed, transfer deed, gift/mortgage deed or any instrument encumbrating the properties of the Shivala in question shall be executed by the petitioners or any one else nor it shall be entertained or registered by the Revenue Authorities of District Gurdaspur and/or any where else till the decision of the Civil Court except with the leave of this Court or the Civil Court. Such a transaction if takes place shall tantamount to fraud on the Trust and shall be null and CWP No. 1611 of 1999 ::-8-:: void. If the petitioners have illegally transferred any property of the deity during the pendency of this writ petition, the interested persons shall be at liberty to challenge such transactions by way of civil suit that may be instituted in terms of the liberty already granted. If any interested person does not come forward, the District Administration is directed to take immediate steps and approach the Advocate General, Punjab to institute the civil suit under the provisions of Section 92 of the Code. [19]. Disposed of. Dasti. February 07, 2011. ( SURYA KANT ) dinesh JUDGE