IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION REVIEW REVIEW REVIEW PETITION NO.11 OF 2005 PETITION NO.11 OF 2005 PETITION NO.11 OF 2005 IN IN IN SECOND SECOND SECOND APPEAL NO.521 OF 1983 APPEAL NO.521 OF 1983 APPEAL NO.521 OF 1983 Bheemacharya Balacharya Varakhedakar & Anr. .. Petitioners Versus State of Maharashtra & Ors. .. Respondents Mr.B.B. Varakhedakar, petitioner no.1 appearing in person. Mr.A.R. Patil, A.G.P for the State. Mr.S.M.Mhamane for the respondent no.2 (iv). CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 24th October 2008. : 24th October 2008. : 24th October 2008. P.C.: . The review petition was fixed from time to time for admission. Initially, the 1st petitioner appearing in person had raised a contention that the review petition should be heard by some other Court and infact he had stated that he was desirous of applying for transfer of the review petition to some other Court. In view of the said submission, this Court directed the registry to place the papers of the review petition before the Hon’ble the Chief Justice for passing 2 appropriate directions. It appears that an administrative order was passed by the Hon’ble the Chief Justice directing that the review petition shall be placed before this Court as the Appellate Side Rules require that a review petition has to be heard by a Judge who has passed the order which is sought to be reviewed. The review petition was thereafter adjourned from time to time. The 1st petitioner appearing in person has made detailed submissions. He has also filed written submissions. 2. It will be necessary to refer to the facts of the case in brief. The review petitioners are the appellants in the Second Appeal and the original plaintiffs. For the sake of convenience, the review petitioners are hereinafter referred to as the appellants. The second appeal arose out of Regular Civil Suit No.969 of 1981 filed by the appellants. The said suit was filed by invoking provisions of Rule 8 of Order 1 of the Code of Civil Procedure, 1908. The main subject matter of the suit is certain rights claimed by the appellants in respect of the ancient temple of Vitthal Rukhmini at Pandharpur. 3. The case of the appellants is based on the 3 decree passed in Regular Civil Suit No.562 of 1980. Therefore, with a view to understand the controversy between the parties it will be necessary to refer to the plaint in Regular Civil Suit No.562 of 1980. The prayer in the said suit was that as a citizen of India and as a member of the ancient Vedic religion and Vaishnav Sampradaya (sect), the appellant no.1 has a right to perform Pooja in the Vitthal Rukhmini temple. The prayer further says that the appellant no.1 has right to demand ‘Dakshina’ (monetary gift to a Brahmin) for performing religious ceremonies in the said temple. The first appellant also claimed to be the leader of the ancient Vedic Dharma and vaishnava Sampradaya. He prayed that non-hindus should be prevented from entering the said temple. A specific prayer is made that the appellant no.1 had right to manage the said temple in view of the rights conferred by Articles 25, 26 and 29 of the Constitution of India and especially Article 26 of the Constitution of India. The appellant no.1 claimed the said rights as his fundamental rights. The consequential prayer for perpetual injunction was incorporated in the said suit. In the said suit reference is made to the provisions of the Pandharpur Temples Act, 1973 (hereinafter referred to as the said Act of 1973). The appellant no.1 contended in the said 4 suit that the provisions of the said act have been partially implemented by abolishing the rights of Badves, Sevadharis and Utpats. As regards performance of Pooja, the management of the said Vitthal temple has been entrusted to Vitthal Mandir committee. The Deputy Collector, Pandharpur was impleaded in the said suit as the executive officer of the Vitthal Mandir Committee and as the representative of the State of Maharashtra. he stated in the plaint that the Badves, Sevadharis and Utpats have filed civil suits for protection of their alleged rights and the said suits are pending. A reference is made in the plaint to the earlier Civil Suit No.296 of 1970 filed by the 1st appellant. The said suit was initially filed in the Court of Civil Judge, Junior Division and was transferred to the Court of Civil Judge, Senior Division and was renumbered as Regular Civil Suit No.1092 of 1974. A contention is raised that though the suit is dismissed, issue no.6 as regards the right of the appellant no.1 under Articles 25, 26 and 29 of the Constitution of India was decided in the favour of the appellant no.1. An appeal filed against the judgment and decree passed in the said suit was also dismissed and the Appellate Court held that the suit was not maintainable on account of failure to serve the notice under section 80 of the said Code. A 5 contention is raised that finding on issue no.6 in the said suit has been confirmed by the District Court. 4. In the said Civil Suit NO.562 of 1980 a joint pursis signed by both the parties was filed. The said pursis is signed by the plaintiff and the District Government Pleader representing the defendant in the suit. In the said pursis, it is stated that a declaration be granted in favour of the plaintiff in the said suit as regards the rights conferred on the plaintiff by Articles 25, 26 and 29 of the Constitution of India. It was specifically recorded in the said pursis that plaintiff in the said suit (the appellant no.1 herein) has given up his prayer for injunction for time being and he will make the said prayer, if occasion arises. The said suit was ordered to be disposed of in terms of the said pursis and accordingly a decree was drawn in terms of the said pursis and a declaration was granted in favour of the appellant no.1 herein in his individual capacity as well as in his capacity as representative of ancient Hindu religion and vaishnav Sampradaya that he is entitled to rights under Articles 25, 26 and 29 of the Constitution of India as well as incidental rights under the said articles. It is to be noted here that the plaintiff in the said suit did not 6 seek leave of the Court to file a fresh suit for decree of injunction and the prayer for perpetual injunction was given up by stating that it was being given up for time being. In this behalf, it is necessary to refer to the order passed by the learned trial Judge on Exhibit 1 in the said suit. The learned Judge passed the following order: "The common pursis of the parties at exhibit 64 is recorded in pursuance of that common pursis, the plaintiffs suit for declaration deserves to be allowed and for perpetual injunction deserves to be dismissed, with no order as to costs. Hence I hereby allow the plaintiff’s suit partly with no order as to costs. It is hereby declared that the plaintiff in his individual capacity and as representative of Sanatan Vedic Dharma and vaishnava Sampradaya has fundamental rights guaranteed under Articles 25, 26 and 29 of the Constitution of India and other rights ancillary thereto. The plaintiff’s claim for perpetual injunction sought hereby stands dismissed." 5. This takes me to the facts of the present suit 7 from which the second appeal arose. In the present suit (Regular Civil Suit No.969 of 1981) the prayer of the appellants is based on decree passed in Regular Civil Suit No.562 of 1980. The case made out in the plaint will have to be also referred to. The appellant no.1 is the plaintiff no.1 who was the plaintiff in the earlier suit being Regular Civil Suit No.562 of 1980. It is stated in the plaint that for executing the decree passed in Regular Civil Suit No.562 of 1980, the execution proceedings in the form of Regular Darkhast No.125 of 1981 was filed by the 1st appellant. The said execution proceedings was filed when the Chief Executive Officer and the Sub-divisional Officer issued passes for entry in the Vitthal Rukhmini temple to those who have undergone a family planning surgery. It is stated in the plaint that though the Ganpati temple and other temples near the Vitthal temple are not a part of the Town Planning Scheme, Work of demolition of the said temples has been started. It is further stated in the plaint that there are houses and shops held by Badves, Sevadharia and Utpats for generations which are close to the Vitthal temple and the said houses and shops are also sought to be illegally demolished. A contention is raised that the said action of demolition offends the Constitutional rights of the appellants and it is the 8 duty of the State Government to protect the said houses and shops. Thereafter, a prayer was made in the suit on the basis of decree passed in Regular Civil Suit No.562 of 1980 that the other temples near the Vitthal temple and houses of Sevadharis, Badves and Utpats near the temple should not be demolished and without the consent of the appellants, the entry passes to the Vitthal Rukhmini temple shall not be issued to any person. Thus, the prayer in the suit is for decree of perpetual injunction on the basis of decree passed in earlier suit No.562 of 1980. 6. The trial Court dismissed the suit. Appeal preferred by the appellants was dismissed by the District Court. The second appeal was admitted by this Court on 11th October 1983 by passing following order: ". The question involved in this appeal relates to the interpretation of the decree passed by the Civil Court in a suit in which the Government was a party. By that decree the plaintiff’s rights for himself and for Sanathan Dharma under articles 25, 26 and 29 of the Constitution of India are specifically recognised and upheld by the Court. The 9 question is as to whether the plaintiff’s personal right to receive Dakshina from any devotee who wants to enter the temple can be said not to have been recognised by the said decree. The question is a substantial question of law and hence the appeal is admitted." 7. The contentions raised in the second appeal by the 1st appellant appearing in person have been summarised in paragraph 11 of the judgment and order dated 23rd July and 26th July 2004 in the second appeal of which review has been sought by filing the present petition. Paragraph 11 of the judgment under review reads thus: "11. Apart from making oral submissions, the appellant no.1(a) has filed written submissions on 15th July 2004 and during the course of dictation of the judgment, he has submitted additional written arguments. The contentions raised by the appellants are diverse. The main reliance is placed by the appellants on the decree passed in Regular Civil Suit No.562 of 10 1980. The contentions raised by the appellants can be summarised in nutshell as under: (a) The right to demand Dakshina from the devotees visiting the temple was already set out in Regular Civil Suit No.562 of 1980. The said right in the matter of Dakshina being religious matter is part of the rights conferred by article 26 of the Constitution of India and a declaration as regards the said right is already granted in earlier decree. (b) Every time the Dakshina is to be given and taken by chanting separate mantras and no religious activity is fulfilled unless Dakshina is paid and accepted. And unless Dakshina is paid and accepted, one cannot acquire "Punya" and work which is done with proper Dakshina is to be treated wrong or "Tamas" work. Reliance is placed on Bhagwad Gita in support of this contention. As Dakshina is unavoidable part of each religious activity, it is a part of the personal right conferred on the appellant no.1(a) under the article 25 of the Constitution of India. 11 (c) The decree passed in Regular Civil Suit No.562 of 1980 confers the personal right on the appellant no.1(a) to receive Dakshina as it is his personal rights. (d) It is stated that even assuming for the sake of arguments that the said right is not personally presently available to appellant no.1(a), it may be stated that the said right is available in his capacity as representative of the ancient Vedic religion. (e) It is submitted that whenever the devotees will seek to give Dakshina to the appellant no.1(a), he will be entitled to receive the same. It is submitted that the right to demand Dakshina could be restricted by fixing the mode of deciding the propriety of the quantity of Dakshina taking into consideration the capacity of the devotees and nature of religious activity. (f) The rights claimed by the appellants in the suit are already upheld in the earlier suit 12 as the appellant no.1(a) had not pressed for perpetual injunction in the earlier suit, this suit seeking decree of perpetual injunction on the basis of declaration of rights made in the earlier suit is maintainable. He submitted that as the decree for injunction is not passed in earlier suit, if any action is taken in contravention of the rights of the appellants which are already declared in the said suit, execution proceedings cannot be filed and the grievance will have to be made by filing a separate suit as done by the appellants. (g) It is submitted that the respondents have no right to demolish the said temples and houses and shops as referred to in the plaint. He submitted that section 149 the Maharashtra Regional and Town Planning Act, 1966 was not attracted. In the alternative, he submitted that a reference ought have been to made to this Court under section 113 of the said Code. (h) It is submitted that as prayer for perpetual injunction is given up by appellant no.1(a) in earlier suit, he is entitled to ask 13 for the same relief at the later stage by filing a separate suit. It is submitted that though permission to file a fresh suit is not specifically mentioned in the body of the order passed below Exhibit 1 in earlier suit, it is to be presumed that such permission is granted in view of the language used in joint pursis on the basis of which decree was passed in the said earlier suit. (i) A contention is raised that the provisions of the Pandharpur Temples Act, 1973 are void as per article 13(2) of the Constitution of India being violative of the appellants’ rights under Articles 25, 26 and 29 of the Constitution of India. It is pointed out that some of the important sections under the said Act of 1973 have not been brought into force. (j) The appellants relied upon the principle of estoppel on the ground that from the date of the filling of the pursis no objections has been raised to the decree passed in the earlier suit. The said objection was not raised in Regular 14 Darkhast No.125 of 1981 and infact in execution proceedings, police protection was ordered to be given for enforcing the rights of the appellants which were recognised by the earlier decree. (k) Reliance is placed on article 26 of the Constitution of India which gives the right to the religious institutions to manage its own affairs in the matter of religion. It is contended that the rights of the appellant no.1(a) of Darshan and Pooja are part of the right conferred by article 26 of the Constitution of India and the appellants have the right to manage and conduct the affairs of the Vitthal temple in the matter of religion." 8. What is held by this Court in second appeal can be summarised as under: (i) By decree passed in Regular Civil Suit No.562 of 1980, a declaration has been granted that the fundamental rights conferred by the Articles 25, 26 and 29 and ancillary rights are available to the 1st appellant in his individual 15 capacity as well as in his capacity as a representative of ancient Vedic religion and Vaishnava Sampradaya; (ii) There is no declaration granted in the earlier suit in favour of the appellants that the Vitthal Rukhmini temple is established and/or managed by either the ancient Vedic religion and/or by Vaishnava Sampradaya; (iii) The decree does not disturb the applicability of the provisions of the Pandharpur Temples Act, 1973 to the said temple; (iv) The subject matter of the earlier suit filed by the appellants was only the temple of Vitthal Rukhmini and the suit which is subject matter of the second appeal relates not only to the said temple but to the other temples in the vicinity of the Vitthal Rukhmini temple and houses and shops in the area; (v) The rights conferred on the 1st appellant under Article 25 of the Constitution of India are subject to reasonable restrictions 16 and therefore if reasonable restrictions on entry to the said temple are imposed by the Committee appointed under the said Act of 1973 for the purposes of securing public order, the same cannot offend the rights available to the appellants under Article 25 of the Constitution of India; (vi) As there is no declaration granted in favour of the appellants in the earlier suit that the institution of the Vitthal Rukhmini is established or managed either by the appellants or by the sects or Sampradaya which they allegedly represent, the appellants cannot claim the right to manage the affairs of the temple; (vii) Merely because Schedule A to the said Act of 1973 recognises a particular religious ceremony propounded by the vaishnava Sampradaya as a part of daily services in temple that by itself does not amount to said Act of 1973 recognising that the said temple belongs to vaishnava Sampradaya; (viii) The decree passed in earlier suit will 17 not give any sect or Sampradaya represented by the 1st appellant a right to administer or manage the temple; (ix) Article 29 of the Constitution of India does not confer any right on the appellants with reference to management and administration of the temple in question. 9. The grounds of review have been set out in the review petition. There are detailed written submissions filed by the 1st appellant appearing in person in support of the review petition. His first submission was that this Court has committed an error by observing that there is no challenge to the validity of the said Act of 1973 either in the present suit or in the previous suit. He submitted that in the earlier suit i.e Regular Civil Suit No.562 of 1980 a specific averment was incorporated that the provisions of the said Act of 1973 were ultra vires of the Constitution of India. He submitted that the present suit is based on fundamental rights available to the appellants under the Constitution of India and as the provisions of the said Act of 1973 are in violation of the said fundamental 18 rights, but provisions of the said Act of 1973 are null and void in view of Article 13(2) of the Constitution of India. He submitted that this Court has committed an error by observing that the earlier suit was only relating to temple of Vitthal Rukhmini and infact the said suit related to all temples or institutions coming under the Vedic Sampradaya. He submitted that by filing a joint pursis in the earlier suit, the respondents admitted the challenge by the appellants to the validity of the said Act of 1973 and therefore there is a decree passed relating to the said Act of 1973. He submitted that the observation made in paragraph 15 of the judgment in second appeal that a decree passed against the appellants in Regular Civil Suit No.1092 of 1974 was against the defendants is erroneous. He submitted that a clear error has been committed on the face of the record by this Court by observing that there is no objection to the management of the temple made by the respondent no.2(iii). He submitted that this Court has not properly considered the meaning and interpretation of the decree passed on the basis of joint pursis at Exhibit 65 in the earlier suit. He submitted that this Court has committed an error by observing that the disputed rights of the appellants are not governed by the decree passed in the earlier suit. He submitted 19 that the important words "relating to the subject matter of the suit" have been completely ignored by this Court while interpreting the decree passed in the earlier suit on the basis of pursis at Exhibit 64. He submitted that the Schedule A of the said Act of 1973 accepts that the temple belongs to Vaishnav Bhagwat Sampradaya. He submitted that the judgment of this Court in second appeal is against the principles of natural justice in as much as the grounds mentioned in the memorandum of second appeal have not been considered and the 1st appellant was not heard on the grounds on which the second appeal has been dismissed. He submitted that the main contention of the appellants is that on the basis of the decree passed in the earlier suit, fundamental right of management available to the appellants of Darshan and Pooja and religious activities in the ancient temples of Vitthal Rukhmini and other temples have been accepted and the said rights cannot be regulated or curtailed by the provisions of the said Act of 1973. He submitted that the alleged restrictions referred to in the judgment in second appeal are not restrictions on the rights of the appellants but the same completely destroy the fundamental rights available to the appellants under Article 25 and 26. He submitted that there was a specific challenge to the provisions of 20 the Pandharpur Town Planning Scheme No.1 as is revealed from written arguments filed before the trial Court. 10. He relied upon various decisions in support of his submissions and submitted that this was a case where there is an error apparent on the face of the record. He also pointed out that he was not allowed to intervene when Second Appeal No.46 of 1985 and other connected appeals were decided by this Court. 11. I have carefully considered the submissions. Though the 1st appellant has taken pains to make very lengthy submissions and has filed detailed written submissions, what has been ignored by him is that a second appeal can be decided only on the substantial question of law framed while admitting the same. It is true that by exercising power under proviso to sub-section 5 of section 100 of the Code of Civil Procedure 1908, at any stage this Court can frame addition substantial questions of law, in the present case the appellants never applied for framing any additional substantial questions of law. The only substantial question of law framed by this Court on 11th October 1983 is Whether the decree passed in the earlier suit recognises the appellants’ personal right to 21 receive Dakshina from any devotee who wants to enter the temple? The decree passed in the earlier suit was required to be interpreted in the light of the said substantial question of law framed. In the circumstances, most of the submissions made by the 1st appellant appearing in person in this review petition are irrelevant. On plain reading of the pursis at Exhibit 64 filed in the earlier suit and the decree passed on the basis of the said pursis, it is obvious that the said decree does not recognise any right to receive Dakshina (offerings) in favour of the appellants. In the circumstances, it is not