IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 292 of 2005 and CWP No. 621 of 2005. Judgment reserved on : 16.6.2009 Date of decision : July 3, 2009. [ For title, please see over-leaf. ] _____________________________________________________________ Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioner [ See : overleaf ) For the Respondents Kuldip Singh , Judge This judgment shall dispose of CWP No. 292 of 2005 and CWP No. 621 of 2005 in which the dispute is concerning Mohatmim , Pujari of Mandir Lakshmi Narain, Channour, Tehsil Dehra, District Kangra, H.P. (for short ‘temple’). Both the writ petitions are taken up together for decision. CWP No. 292 of 2005 2. The petitioner in CWP No. 292 of 2005 has prayed mainly the following reliefs:- (i) quash the order Annexure P-1 and P-1/1 (sic, P-1/2) passed by Dy. Commissioner, Kangra and S.D.O.(C ), Dehra on 18.12.2002 and 28.12.2004, 1 Whether reporters of Local Papers may be allowed to see the Judgment ? .Yes 2 (ii) direct the respondents No.3 and 4 to forthwith remove respondent No.1 as Mohtamim / Pujari of Mandir Lakshmi Narain, Channour, Tehsil Dehra, District Kangra, 3. The facts, in brief, in CWP No. 292 of 2005 are that petitioner has claimed himself to be the Mohatmim of temple. The petitioner has claimed that he is entitled to perform puja in the temple. It has been pleaded that at one point of time Kirpa Ram was the Mohatmim of the temple and on his death, his daughter Kesri was appointed Mohatmim. On the death of Kesri her grand-daughter Smt. Suresh Kumari respondent No.1 was appointed as Mohatmim by Collector, Kangra vide Annexure P-2 dated 4.7.1972. Smt. Suresh Kumari got married and she started living at Bombay and was not qualified to become Mohatmim. A civil suit No.23/1981 was filed in the court of Sub Judge, 1st Class, Dehra which was compromised on 27.2.1986. The Civil Appeal No.47 of 1986 was dismissed by lower appellate court. The matter came in this court in the form of RSA No. 185 of 1991 in which on 30.9.1991, Annexure P-3 interim order was passed regarding the performance of puja. RSA No.185 of 1991 was compromised and was disposed of on 18.12.1996 vide Annexure P-4. 4. The further grievance of the petitioner is that since Smt. Suresh Kumari respondent No.1 had started living at Bombay, she did not attend to puja herself and appointed her step brother Ashwani Kumar to perform the duties despite the fact that she was to perform the puja herself and only in rare cases Ashwani Kumar could perform puja. Smt. Suresh Kumari never attended puja after 1.5.1996. This fact was brought to the notice of District Judge, Kangra vide 3 application, Annexure P-5 for directions either Smt. Suresh Kumari should perform puja herself or remove her as Mohatmim. The District Judge vide order dated 1.9.1999, Annexure P-6 observed that there is no necessity for change of the person performing the puja. It was also observed that Smt. Suresh Kumari would continue to perform the puja personally in the light of the order of the High Court. 5. Smt. Suresh Kumari did not perform puja and other duties assigned to Mohatmim after 1.5.1996, petitioner and respondent No.2 filed an application dated 24.6.1999 before the Deputy Commissioner, Kangra for removal of Smt. Suresh Kumari as Mohatmim of the temple. The Deputy Commissioner, Kangra vide order dated 18.12.2001, Annexure P-1 held that role of Deputy Commissioner with respect to affairs of the temple is restricted to fill up the vacancy when it arises in the office of Mohatmim. The Judgment of the High Court is only to consider the matter by the Committee constituted by it which can take cognizance of such directives / complaints and if the petitioner / complainant had any grudge, they could approach the Committee. The matter was carried in revision before the Divisional Commissioner, who dismissed the revision on 17.7.2002 by holding that it was not maintainable. 6. The petitioner thereafter filed CMP No. 202 of 2002, Annexure P-9 in RSA No. 185 of 1991 which was rejected by the learned Single Judge on 2.4.2002 vide Annexure P-10. It was observed that the petitioner was at liberty to seek appropriate remedy before the appropriate forum. 4 7. The petitioner thereafter filed CWP No. 492 of 2002 which was disposed of by a Division Bench of this Court on 13.10.2003 Annexure P-1/1. The Division Bench while disposing of the CWP No. 492 of 2002 on 13.10.2003 has observed as follows:- “ In view of the above, the right person to be approached was S.D.O.(Civil), Dehra, with a request to carry out the directions of the Hon’ble court issued in the aforesaid RSA by bringing all the facts in his notice. Faced with this situation, Mr. Sood stated that his client will file a detailed representation before the Sub Divisional Officer (Civil), Dehra to carry out the directions issued by this Court in RSA No. 185 of 1991, lying before 31.10.2003. In case the such a representation is made, the S.D.O.(Civil), Dehra, is directed to ensure that he deals with the same keeping in view the decision of this court and all other relevant facts which may be brought to his notice by the petitioner. In such a situation, he is directed to further deal with the matter and take final decision by a reasoned and speaking order by or before 31.10.2003. It is further clarified that in case the said decision goes against the petitioner, he will be at liberty to approach this court in accordance with law. The writ petition stands disposed of”. 8. The petitioner thereafter filed an application before Sub Divisional Officer (Civil), Dehra, Annexure P-11. The respondent No.1 Smt. Suresh Kumari contested the application. The Sub Divisional Officer (Civil ) vide order dated 28.12.2004, Annexure P-1/2 has observed that if any Mohatmim would not abide by the orders of the High Court in toto and fail to do his / her duty faithfully and properly, the Committee would recommend the case of her removal to Deputy Commissioner as he is the competent authority to remove Mohatmim as per para 7 of the judgment of the High Court dated 18.12.1996, Annexure P-4. 5 9. It was alleged that respondent No.1 Smt. Suresh Kumari is not a fit person to act as Mohatmim more particularly when she had not come from Bombay to Channour after 1.5.1996. She has not performed puja herself. She earlier deputed her father Roshan Lal and now Ashwani Kumar her step brother to perform puja in her place which is wholly against the letter and spirit of the judgment of the High Court and her appointment. A direction was sought against respondents 3 and 4 to remove respondent No.1 as Mohatmim of the temple by quashing Annexure P-1 and directing him to decide the question of Mohatmim in place of respondent No.1. 10. The respondent No.1 Suresh Kumari has not filed any reply. At the time of hearing of CWP No. 292 of 2005 and CWP No.621 of 2005 Mr. Ajay Sharma, Advocate, learned counsel for petitioner in CWP No. 621 of 2005 has submitted that CWP No.621 of 2005 may be treated as reply on behalf of respondent No.1 in CWP No. 292 of 2005. The respondent No.2 has been proceeded exparte. Respondents No.3 & 4 have filed common reply. It was submitted that respondent No.3 had passed the order dated 18.12.2001, Annexure P-1 in true spirit. It was also stated that Smt. Suresh Kumari respondent No.1 was not performing puja regularly herself. She, however, had attended puja after 1.5.1996 many times. The respondents No.3 & 4 prayed for dismissal of the petition. CWP No. 621 of 2005 11. The petitioner in CWP No. 621 of 2005 has prayed mainly the following relief:- 6 That directions may very kindly be issued especially in view of the judgment of this Hon’ble Court and judgments of Hon’ble the Apex Court that Poojari in fact, being the servant of the Mohatmim and petitioner having been appointed as Mohatmim can engage the services of duly qualified Poojari to perform the rituals in the interest of law and justice. 12. The petitioner has pleaded the circumstances leading to the filing of earlier suit, first appeal, RSA No.185 of 1991 and the judgment dated 18.12.1996 passed by a learned Single Judge of this Court in RSA No.185 of 1991. She has also pleaded that the application of respondent No.4 was dismissed by District Judge on 1.9.1999. The application filed before the Deputy Commissioner was decided on 18.12.2001. The respondent No.4 filed CMP No.202 of 2002 in RSA No. 185 of 1991 which was rejected on 2.4.2002. The petitioner has also pleaded filing of CWP No. 492 of 2002 by respondent No.4 which was decided on 13.10.2003. She has also pleaded that respondent No.4 had filed another application before Sub Divisional Officer (Civil), Dehra who passed the order on that application on 18.12.2004. 13. The further case of the petitioner is that her father Roshan Lal had died and even her husband has also died. The S.D.O. (Civil), Dehra has ignored that mohatmimship is a post for managing the affairs of the religious temple. Mohatmim either herself or through qualified person is at liberty to perform puja in the temple. There is no irregularity or illegality in managing the affairs of the temple by the petitioner. Pujari and Mohatmim are two different capacities. The Mohatmim can appoint a Pujari. The petitioner is a Mohatmim by 7 virtue of succession. Mohatmim is not disqualified to engage a Pujari. The order dated 28.12.2004 of S.D.O.(Civil) is contrary to the order passed by the Deputy Commissioner and District Judge as well as judgment of this Court in the RSA. 14. The respondents No.1 and 2 have not filed any reply. However, respondents No. 3 and 4 have filed common reply. The stand of the respondents No.3 and 4 is almost the same as taken by the petitioner in CWP No. 292 of 2005. The respondents No. 3 and 4 along with their reply have filed copy of order dated 30.4.1982 passed in C.R. No 203 of 1981. The order dated 30.4.1982 was passed on interim relief application. 15. Heard and perused the record. 16. In CWP No. 292 of 2005 the grievance of Kushal Chand petitioner is against order dated 18.12.2001 of Deputy Commissioner and order dated 28.12.2004 of S.D.O.(Civil), Dehra. It has also been prayed that Deputy Commissioner and S.D.O.(Civil), Dehra be directed to remove Smt. Suresh Kumari as Mohatmim / Pujari of the temple. In CWP No. 621 of 2005 the order dated 28.12.2004 of S.D.O. (Civil) has been assailed but prayer has been made to the effect that since Smt. Suresh Kumari has been appointed as Mohatmim, she can engage the services of duly qualified Pujari to perform the rituals in the interest of law and justice. 17. The Collector (Deputy Commissioner), District Kangra is the authority to appoint Mohatmim of the temple. In fact Smt. Suresh Kumari was appointed Mohatmim of the temple on 4.7.1972 by the Collector, District Kangra. Smt. Suresh Kumari petitioner in CWP 8 No. 621 of 2005 as well as Kushal Chand petitioner in CWP No. 292 of 2005 are aggrieved against the order dated 28.12.2004 passed by the S.D.O. (Civil), Dehra inasmuch as both of them in their respective petitions have assailed the said order. 18. It is clear from the order dated 18.12.1996 in RSA No. 185 of 1991 that Smt. Suresh Kumari, Rajinder Kumar and Kushal Chand were held to be Mohatmims of the temple. It was also held that Smt. Suresh Kumari is living in Bombay and some times it is difficult for her to personally perform rituals and other ceremonies with respect to performance of puja. In such a situation, she was permitted to take the assistance of her father Roshan Lal and brother Ashwani Kumar but that would however not confer any right on either of those two persons. It was also observed in the judgment dated 18.12.1996 that as and when vacancies arises in the office of Mohatmim , it will be filled up by the concerned Deputy Commissioner under the well established custom. A committee consisting of S.D.O. (Civil), Dehra, Sh. Ram Gopal, Advocate and Sh. K.K. Sharmi, Advocate was appointed for over all supervision and control for the management of the temple and its properties. This committee was authorized to look into the functioning of Mohatmim. The provision was also made in the order that in case Mohatmim or Committee needs further direction or guidelines in the spirit of the judgment, they would be at liberty to file appropriate application before the learned District Judge and same shall be disposed of expeditiously keeping in view the best interest of the institution and its property and management. In the order dated 18.12.1996 it was made clear that interim arrangement dated 9 30.9.1991 shall be read as part of the judgment and three Mohatmims would continue to work by rotation on the terms fixed in that order. In the order dated 30.9.1991 it was observed that Smt. Suresh Kumari may take the assistance of her father Roshan Lal and her brother Ashwani Kumar. So far as puja is concerned, it will be performed by Smt. Suresh Kumari herself. 19. Mr. Ajay Sharma, Advocate learned counsel for Smt. Suresh Kumari has submitted that Mohatmim and Pujari are two different capacities. Smt. Suresh Kumari, Mohatmim is within her rights to get puja ceremonies performed in the temple through some Pujari who is otherwise duly qualified. He has submitted that in the order dated 18.12.1996, the learned Single Judge has also given liberty to Smt. Suresh Kumari to perform puja in the temple with the assistance of her father Roshan Lal and brother Ashwani Kumar. It has been submitted that Roshan Lal has died but Ashwani Kumar is very much available for performing puja in the temple. 20. The grievance of Kushal Chand in CWP No. 292 of 2005 is that the purpose of appointment of Smt. Suresh Kumari as Mohatmim of the temple has been defeated because after her marriage, she has settled at Bombay. It was never the intention that Smt. Suresh Kumari, Mohatmim of the temple should perform puja in the temple through remote control. Only in case of difficulty, such as illness or when she was not clean she was permitted to perform puja in the temple through someone else and for that reason her father Roshan Lal and brother Ashwani Kumar were permitted to perform puja in the temple vide order dated 18.12.1996. The purpose of order 10 dated 18.12.1996 was not to give a licence to Smt. Suresh Kumari to perform puja in the temple through someone else for all times to come while sitting at Bombay. 21. It has not been denied on behalf of Smt. Suresh Kumari that since after her marriage she is living at Bombay. The order dated 30.9.1991 also indicates that puja in the temple was to be performed by Smt. Suresh Kumari. It has come on record that Smt. Suresh Kumari is not performing puja personally in the temple regularly. Mr. Ajay Sharma, Advocate has relied The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt AIR 1954 S.C. 282, Mst. Raj Kali Kuer Vs. Ram Rattan Pandey AIR 1955 SC 493 and Gauri Shankar Vs. Ambika Dutt and others AIR 1954 Patna 196 in support of his submissions. 22. In Commissioner Hindu Religious Endowments, Madras (supra), the Supreme Court has held that in the conception of Mahantship, as in Shebaitship, both the elements of office and property, of duties and personal interest are blended together and neither can be detached from the other. The beneficial interest which a Mahant enjoys is appurtenant to his duties and as he is in charge of a public instition, reasonable restrictions can always be placed upon his rights in the interest of public. A Mahant’s duty is not simply to manage the temporalities of a Math. He is the head and superior of spiritual fraternity and the purpose of Math is to encourage and foster spiritual training by maintenance of a competent line of teachers who could impart religious instructions to the disciples and followers of the 11 Math and try to strengthen the doctrines of the particular school or order. In other words, the Mahant has not only the right but has some duties also. 23. Mr. Ajay Sharma, Advocate in view of Gauri Shankar (Supra) has submitted that Pujari is appointed by a Shebait as the purohit to conduct the worship. He is merely a servant appointed by the Shebait for the performance of ceremonies. He has submitted that Mohatmimship is a property and Smt. Suresh Kumari has every right to appoint a qualified Pujari to conduct puja in the temple and merely that somebody else is performing puja in the temple instead of Smt. Suresh Kumari even though that person has been authorized, appointed by Smt. Suresh Kumari to perform puja in the temple, it cannot be said that Smt. Suresh Kumari has violated any express provision of law or the judgment dated 18.12.1996 in RSA No. 185 of 1991. 24. In Mst. Raj Kali Kuer (Supra) , the Supreme Court has noticed AIR 1915 Mad 561 and AIR 1919 Mad 598 and held as follows:- “The only dissentient view against this current of authority in the Madras High Court was that of Justice Sadasiva Aiyar in AIR 1915 Mad 561 (A). He expressed a strong opinion that the practice of allowing the priestly office to be performed by a substitute excepting for merely temporary occasions or casual purposes, is wholly opposed to public policy and that it should not be recognized. In a later judgment in AIR 1919 Mad 598 (FB) (K), relating to the same topic he (justice Sadasiva Aiyar) stated as follows: ‘It is notorious that the deputy is usually chosen on the principle of a Dutch auction. The man who agrees to allow the widow to retain the largest portion of the emoluments of the 12 office and to receive the least as his own remuneration is given the place of the deputy.’ The learned Judge pointed out that “such a practice was mischievous and that even if it was sanctioned by usage it ought not to be recognized by courts.” There is certainly force in this comment. But in a matter of this kind where there is no express prohibition in the texts for the performance of the duties of the ‘Pujari’s’ office by the appointment of substitutes and where such an office has developed into a hereditary right of property, the consideration of public policy cannot be insisted on to the extent of negativing the right itself. In such a situation what has to be equally emphasized is the duty-aspect of the office and to insist, on the superior authorities in charge of the temple exercising vigilantly their responsibility by controlling the then incumbent of the priestly office in the exercise of his rights (or by other persons having interest taking appropriate steps through court), when it is found that the services are not being properly or efficiently performed. In view of the peculiar nature of such offices as combining in them both the element of property and the element of duty, it cannot be doubted that superior authorities in charge of the institutions or other persons interested have this right which may be enforced by appropriate legal means. In – ‘Peary Mohan Mukherji v. Monohar Mukherji’, AIR 1922 PC 235 (P), the Privy Council has recognized that nothwithstanding the personal interest of a ‘Shebait’ in respect of his office, the performance of the duties thereof has got to be safeguarded and that he can be removed where he has put himself in a position in which the obligation of his office can no longer be faithfully discharged.” 25. The puja and mohatmimship of the temple is regulated vide order dated 30.9.1991 and judgment dated 18.12.1996 to which Smt. Suresh Kumari is a party. In the judgment dated 18.12.1996 indication has been given when other person instead of Smt. Suresh Kumari can perform puja in the temple. In these circumstances the submission of Mr. Ajay Sharma, Advocate that Mohatmim and Pujari are two different capacities and puja can be performed in the temple on 13 behalf of Mohatmim through someone else duly qualified has no substance in view of order dated 30.9.1991 and judgment dated 18.12.1996.. 26. The question with respect to removal of mohatmimship has been raised by Kushal Chand in CWP No. 292 of 2005. The Division Bench in the order dated 13.10.2003 had observed that right person to be approached is S.D.O.(Civil), Dehra with a request to carry out the directions of the court issued in RSA No. 185 of 1991. The para 7 of the judgment dated 18.12.1996 provides how the Mohatmim of the temple is to be removed. 27. The committee constituted by judgment dated 18.12.1996 is to look into the functioning of the mohatmims of the temple. The committee has been authorized to bring to the notice of the Deputy Commissioner concerned regarding the working of the mohatmims and the Deputy Commissioner after holding summary inquiry would remove the Mohatmim and appoint another Mohatmim in his/her place. It is not the intention of judgment dated 18.12.1996 that Deputy Commissioner would exercise the jurisdiction to consider the removal of Mohatmim only if recommendation from committee would come. The Deputy Commissioner has independent power to remove Mohatmim of the temple and that power can be exercised on the basis of recommendation of committee also. It is thus clear that Deputy Commissioner has the authority to remove any Mohatmim of the temple. The Deputy Commissioner in the order dated 18.12.2001 has not properly understood the directions of this Court which were given in judgment dated 18.12.1996. In these circumstances, order dated 14 18.12.2001, Annexure P-1 passed by the Deputy Commissioner, Kangra is not sustainable. The S.D.O.(Civil), Dehra is one of the member of the committee but the order dated 28.12.2004, Annexure P-1/2 has been passed by S.D.O.(Civil), Dehra and not by committee. In view of order dated 13.10.2003 of Division Bench read with judgment dated 18.12.1996 in RSA No.185 of 1991 SDO (Civil), Dehra should have placed the matter before committee and decision of committee regarding mohatmimship of Smt. Suresh Kumari, if required, should have been placed before Deputy Commissioner, Kangra but S.D.O.(Civil), Dehra himself decided the application, therefore, order dated 28.12.2004, Annexure P-1/2 is liable to be set-aside. 28. In light of above discussion, CWP No. 621 of 2005 is dismissed. CWP No. 292 of 2005 is allowed. Order dated 18.12.2001, Annexure P-1 and order dated 28.12.2004, Annexure P-1/2 in CWP No. 292 of 2005 are set-aside. The petitioner Kushal Chand in CWP No. 292 of 2005 is at liberty to approach the Deputy Commissioner, Kangra for removal of Smt. Suresh Kumari as Mohatmim of Lakshmi Narain temple, village Channour, Tehsil Dehra, District Kangra on such grounds as available to him in law by filing a petition within a period of four weeks from today and in case such petition is filed, then Deputy Commissioner, Kangra shall decide such petition in accordance with law within a further period of four months after giving opportunity of hearing to the parties concerned. Both the petitions are accordingly disposed of. No costs. July 3, 2009 (Kuldip Singh) (GR) Judge. 15 1. CWP No. 292 of 2005 Kushal Chand .…Petitioner. Versus Suresh Kumari and others .. ..Respondents. For the Petitioner : Mr. K.D.Sood, Advocate. For Respondent No.1 : Mr. Ajay Sharma, Advocate. Respondent No. 2 : Ex-parte. For respondents No. 3 & 4 : Mr. A.K.Bansal, Addl. A.G. with Mr. R.P.Singh Asstt.A.G. 2. CWP No. 621 of 2005 Suresh Kumari …Petitioner Versus State