IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 4441 of 1995 WITH SPECIAl CIVIL APPLICATION NO.6827 of 1998 WITH CIVIL APPLICATION NOs. 404 OF 2000 & 3208 OF 2002 For Approval and Signature: Hon'ble MR.JUSTICE JAYANT PATEL ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO @ THAKAR KANAIYALAL RASIKLAL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance:- 1. Special Civil Application No. 4441 of 1995 M/S TRIVEDI & GUPTA for Petitioner No. 1 MR PK JANI for Petitioner No. 1 MR RC JANI for Petitioner No. 1 GOVERNMENT PLEADER for Respondent No. 1 MR PK JANI for Respondent No. 2 MR RC JANI for Respondent No. 2 NOTICE SERVED for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE JAYANT PATEL C.A.V. JUDGEMENT Date of pronouncement:17/06/2002 In both these petitions and connected civil applications common questions are raised by the respective petitioners asserting their right to perform puja as popularly known as "Bhattaji Pujari" at the temple of Arasuri Ambaji(popularly known as Ambaji temple) situated at Ambaji, taluka Danta, Dist.Banaskantha, Gujarat State. 2. The short facts by way of historical background are that about more than 1000 years back the temple of Arasuri Ambaji Mataji set up during the period of King of Danta State and installation (pratisthapan) of Godess Arasuri Ambaji was made at the said temple during the life of time of said king of Danta with a pious hope that the grace of the Godess may shower upon the king and other worshipers of Ambaji Mataji. It is stated that the King of Danta had given the worship rights to Audichya brahmins of Sidhpur who were well-versed in holly pronunciation of mantras and rituals of vidhi and these brahmins were known as Bhattaji Pujaris. It is stated that because of blessings of Ambaji Mataji there are lacs of people not only from Gujarat but also from neighbouring States of the country as well as from different parts of the country and these people are visiting the temple for offering their pujas and for having darshan of Ambaji Mataji and as a result thereof Ambaji Mataji temple became important from the point of view of religious sentiments as well as from the point of view of its revenue to be distributed for the public at large including the beneficiaries thereof. 3. The State Govt wanted to regulate the administration of the temple and also wanted to develop the temple and one of the important placees of Indian culture and therefore a resolution was passed by the State of Gujarat dated 17.3.60 whereby the administration of Ambaji Mataji temple was continued with the State Govt and a scheme was framed for its administration which interalia included clause 39 for appointment of Pujaris. The said Clause 39 of the said scheme provided as under: "39.Appointment of pujaris: The contract of the present pujari should be terminated as soon as possible, and a learned religious minded brahmin who can help in setting up a centre of Sanskrit learning and Bharatiya Culture at Ambaji, should be appointed. He would be the chief Pujari and the assistance given to him in the puja work should also be sufficiently qualified. Applications for the appointment of the pujari and his assistants should therefore be invited after prescribing suitable qualifications. The qualifications for a pujari should as for a possible among others are: (i) Good knowledge of Sanskrit and scriptures, preferably a degree of Sanskrit or Acharya of a recognised institution; (ii) proficiency in Pourchitya and ability to perform Yagnas, particularly Shatachandi and Maharudra according to Vedic and Shastric rites; (iii) initiated into navrans and [panchdeshi and acquainted with Dakshina Achara Shakti Pujana. (iv) ability to recite vedas, particularly, Shukla Yajurveda and/or rigveda. This procedure should be followed whenever the post of pujari becomes vacant. His assistants in puja should also be properly qualified." 4. Since the contract of the present pujari was to be terminated and the appointment of pujari as per clause 39 of the scheme was to be made at that stage Ramshankar Mangalji Thaker and two others preferred Civil Suit No.77/67 in the court of Civil Judge (SD) at Palanpur for establishing their hereditary vested right to perform puja of Ambaji Mataji and also prayed for injunction. In the said suit, ultimately, on 18.2.69 a written purshis by way of compromise was submitted by Madhavlal Lallubhai Pandya, Ramshankar Maganlji Thaker and Kantilal Mohanlal Thaker and Kannaiyalal Rasiklal Thaker whereby it was declared, interalia, that they are abandoning their so called rights and are unconditionally withdrawing the suit on account of their request for their appointment as Bhattji Pujari of Mataji Ambaji temple for the period of 20 years and not more being accepted by the State Government. In the said purshis it was agreed by the aforesaid four persons that every one of them will be entitled to perform puja for a period of five years each. The said compromise in any case has come to an end at the expiry of period of twenty years which in the present case would be in the year 1989. Therefore, the said aspect would not be of much relevance save and except that there was abandonment of right to perform puja unconditionally and the right to claim was only for 20 years and not more. It appears that pursuant to said compromise purshis, the aforesaid four persons including their legal heirs, subject to conditions of compromise, continued to perform puja as Bhattji Pujaris. 5. Thereafter, on 18.4.94 Thaker Bhanuprasad Ramshankar, Pandya Bharatkumar Madhavlal and Thaker Mahendrakumar Kantilal made a representation to the Chairman of the Ambaji Mataji Devasthan Trust stating that the present contract is to expire on 18.5.94 and therefore from 19.4.94 onwards they may be granted contract for performance of puja claiming that Pandya Madhavlal Lallubhai, who was the father of Thaker Bhanuprasad Ramshankar and Thaker Kantilal Mohanlal who was the father of Thaker Mahendra Kantilal were performing puja and therefore their heirs, namely, Bharatkumar, Bhanuprasad and Mahendra may be continued to perform puja by way of new contract. On 16.5.94 the Government took decision to continue performance of puja by Bhattji Kannaiyalal Rasiklal Thaker upto 16.6.94 by way of temporary arrangement and thereafter on 15.6.94 an order was passed by the State Govt to continue Kannaiyalal Rasiklal Thaker as Bhattji Pujari from 16.6.94 to 15.6.95. As an outcome of the aforesaid order it appears that the compromise which was for a period of 20 years came to be continued upto 1994 and thereafter said Kannaiyalal Rasiklal Thaker has continued for a further period of one year as Bhattji pujari. At stage, of the expiry of period of the contract for performance of puja which was upto 15.6.95 said Thaker Kannaiyal Rasiklal preferred Special Civil Application No.4441/95 before this court on 2.6.95 for direction to the State Govt to recognise the petitioners' hereditary right of worship coupled with the right to offerings to Mataji Ambaji and also for quashing the action of the State Govt to deny the exercise of right of worship to the petitioners. Said petition was admitted but no interim order was passed. 6. It appears that on 4.3.95 the State Govt passed order for appointment of five persons in rotation as pujari for one year each and the said period was to start from 16.6.94 onwards, i.e. for the year 1994-95 Kannaiyalal Rasiklal Thaker, for the year 1995-96 Madhavlal Lallubhai, for the year 1996-97 Ramshankar Mangalji, for the year 1997-98 Kantilal Mohanlal Thaker and for the year 1998-99 Krishnalal Vithalji Thaker. An important aspect which is required to be noted is that the name of Krishnalal Vithalji Thaker came to be inducted for the first time by the aforesaid order dated 4.3.95. Various terms and conditions for appointment are provided. One of such condition is that if during the period of appointment the persons concerned expires then the State Govt.can make appointment of one of the competent legal heirs of the deceased, but the legal heirs will not be entitled to claim any right of appointment after the death of the Bhattji pujari. Condition No.18 provides that the appointment is for a period of one year but if the Govt. finds it proper it can terminate the appointment without any notice. The order dated 4.3.95 for appointment of aforesaid five persons as Bhattji pujari by rotation for one year each continued to operate upto the turn of Kantilal Mohanlal Thaker and not only that but even Krishnalal Vithalji Thaker's turn was to begin from 16.6.98 and no effective steps were taken by the State Govt. to see that Krishnalal Vithaji Thaker is assigned with the work of performance of puja from 16.6.98 and said Krishnalal Vithalji Thaker had made a representation to the State Govt on 5.6.98 and in the said representation it was requested that the attempts are made to see that the present pujaris, namely, legal heir of Kantilal Mohanlal Thaker is continued. Though Krishnalal Vithalji Thaker had legitimate right to perform puja as per order dated 4.3.95 it appears that on 15.6.98 the State Govt passed order to continue Mahendrakumar Kantilal Thaker as Bhattji Pujari until further orders. However, ultimately, on 13.8.98 order came to be passed by the State Govt whereby the continuation of Mahendrakumar Kantilal Thaker as pujari was ended and it was ordered to give charge to Krishnalal Vithalji Thaker from13.8.98 and he was authorised to work as pujari upto 12.8.99 for a period of one year and said Krishnalal Vithalji Thaker had taken over the charge and started performing puja pursuant to said order. However, it appears that on 20.8.98 the State Govt passed an order and terminated the appointment of Krishnalal Vithalji Thaker and appointed Kanaiyalal Rasiklal Thaker as Bhattji pujari from 20.8.98 to 19.8.99 and the said order of terminating the appointment of Krishnalal Vithalji Thaker as pujari is challenged in Special Civil Application No.6827/98. Pending said special civil application on 21.8.98 order came to be passed by this court (Coram: M.S.Parikh,J) which reads as under: "Leave to delete respondent No.3. Rule. Service of rule is waived by Mr.K.T.Dave, Ld.AGP appearing for respondent Nos 1 & 2 and Mr.Kamal Trivedi, learned advocate appearing for respondent No.4. By consent following direction is issued: Respondent No.1 will appoint any one out of Shri Madhavbhai Lallubhai, Ramshankar Thaker or Kantilal Mohanlal Thaker to work as Bhattji Pujari till this petition is finally heard and disposed of. It is, however, clarified that neither the petitioner nor respondent No.4 will be so appointed till the final disposal of this petition. Office to place this petition for final hearing along with special civil application No.4441/95 on 19th September, 1998. It is made clear that the parties will file their respective affidavits at least one week before the date of final hearing and complete their pleadings. It is also made clear that the aforesaid arrangement is only ad hoc arrangement and will not be treated as conferring any right to any of the parties." 7. The said Krishnalal Vithalji Thaker, pending the petition, expired on 27.9.01 and in his place his legal heirs Vishnuprasad K.Thakar is brought on record as the legal heir of the petitioner. Bharatkumar M.Padia, Mahendrakumar Kantilal Thaker and Bhanuprasad Ramshankar Thaker who were ordered to be appointed as Bhattji Pujaris pending Special Civil Application No.6827/98 pursuant to order dated 21.8.98 of this court have preferred Civil Application No.9542/01 in Special Civil Application No.6827/98 praying that they may be allowed to perform puja till the final disposal of the petition. One Rohitkumar Vishnuprasad Thakar who is claiming that his father was performing puja of Ambaji Mataji for last 40 years has filed Regular Civil Suit No.180/01 together with his brother and the said suit is pending and therefore he may be implemented as party to the proceedings of the Special Civil Application No.6287/98 and for the said purpose Civil Application No.404/02 is preferred. 8. Civil Application No.3208/02 is also preferred by Bharatkumar M.Padhya, Mahendrakumar Kantilal Thakar and Bhanuprasad Ramshankar Thakar who are appointed to perform puja by interim order dated 21.8.98 of this court have joined themselves as party in the proceedings of Special Civil Application No.6827/98. 9. I have heard Mr.Thakar for the petitioners in Special Civil Application No.4441/95, Mr.P.K.Jani for the petitioners in Special Civil Application No.6827/98 and Mr.Nanavaty appearing with Mr.Hasurkar for applicants in Civil Application Nos.9542/01 and 3208/02 and Mr.Bipin Mehta for Mr.A.R.Lakhia for applicants in Civil Application No.404/02 and Mr.S.N.Shelat, Ld.AG with Mr.A.D.Oza, Ld.GP for respective respondents of the Civil Applications and all addressed the court on merits as Special C.A.Nos 4441/95 and 6827/98 and C.A.s are finally heard. 10. Mr.Thakkar the Ld. Counsel, appearing for the petitioners of Special C.A.No.4441/95 submitted that the right to perform puja is a hereditary right and he submitted that such right is recognised by the private Hindu Law. Mr.Thakkar relied upon the judgment of Apex Court in the matter of Mst.Raj Kali Keur vs Ram Rattan Pandey reported in AIR 1955 SC 493 to contend that the right to perform puja is customary Hindu right which also inherits to Hindu female. Mr.Thakkar therefore submitted that since the forefathers of the petitioners of Special Civil Application No.4441/95 were performing puja since the establishment of the temple and since the State Govt also continued with the recognition of such rights, more particularly, when the settlement was arrived at in the proceedings of Civil Suit No.77/61 he submitted that the State Govt is bound to recognise the petitioner's hereditary right of worship at the temple and the action of denying such rights should be quashed. Mr.Thakkar submitted that though his prayer is for recognition of rights of the petitioner only, but the petitioners have no objection if such right is also recognised as the right of the legal heirs of other pujaris who were parties to the settlement in the proceedings of Civil Suit No.77/61, namely, Madhavlal Lallubhai Padhya, Ramshankar Mangalji Thaker and Kantilal Mohanlal Thaker in addition to the rights of the petitioner. 11. Mr.Nanavaty, the Ld. Counsel, appearing for Bharatkumar M.Padhya, Mahendrakumar Kantilal Thaker and Bhanuprasad Ramshankar Thaker, applicants of Civil Application No.3208/02 supported the contention of the petitioner and he further submitted that after the expiry of period of settlement which was made in the proceedings of Civil Suit No.77/61 since the Govt had continued the petitioner as well as applicants being the legal heirs of other pujaris as Bhattji pujaris the declaration made for unconditional abandonment or withdrawal of the so called rights of performing puja can not be enforced against the petitioner and his clients, since the State Govt had by implied conduct subsequently continued to recognise said hereditary right of performance of puja and therefore Mr.Nanavaty submitted that the State Govt is bound to recognise the hereditary right of the petitioner and his clients of performing puja at Ambaji Mataji temple. 12. On behalf of State Govt Mr.S.N.Shelat, Ld.AG appearing with Mr.A.D.Oza, Ld.GP submitted that after framing of the scheme there was no right whatsoever of the petitioners, i.e. Thakar Kannaiyalal Rasiklal or any other person and he further submitted that the Govt had a right to make the appointment of pujaris as per Clause 39 of the Scheme. However, on account of compromise in the proceedings of civil suit the Govt did not enforce and acted upon the clause 39 of the Scheme and continued the plaintiffs and their legal heirs of Civil Suit No.77/61 as pujaris. Mr.Shelat submitted that, as a matter of fact, there is an unconditional abandonment of any right of performing puja and therefore the petitioner and other similarly situated persons having taken benefit of settlement now can not contend that even after the expiry of period of 20 years they will continue to assert their right of performance of puja. Mr.Shelat also submitted that, in any case, it does not lie in the mouth of the petitioner to contend that after expiry of period of more than 20 years that they have traditional/customary right to perform puja which can not be taken away or curtailed. 13. It is true that the Apex Court in the matter of Mst.Raj Kali Kuer (supra) held that that the right to perform puja is recognised under Hindu Law, but such right, if at all, was there with the petitioners, the same was asserted by the petitioners while preferring Civil Suit No.77/61. However, in the proceedings of Civil Suit No.77/61 there is an unequivocal and unconditional abandonment of any such right to perform puja upon the decision of the Govt having accepted the request of the plaintiffs of the said suit to perform puja for 20 years and no more. It can not be said that the said right continued beyond expiry of period of 20 years and thereafter all rights which the petitioners and the clients of Mr.Nanavaty had come to an end on expiry of period of 20 years, i.e. after the expiry of period of settlement arrived at in Civil Suit No.77/61. Once the plaintiffs of Civil Suit No.77/61 have accepted the abandonment of their right to perform puja on account of settlement incorporated in the purshis, no such hereditary right to perform puja can be legitimately claimed by the petitioner, more particularly, in view of the fact that the petitioners and the plaintiffs of Civil Suit No.77/61 have not only acted upon the settlement but have enjoyed the benefit of such settlement all throughout i.e. upto expiry of 20 years, from 18.2.69. Not only that but from 18.10.94 onwards the appointment of the petitioner was only for one year and the said appointment is an independent appointment which was accepted by the petitioner and various terms and if conditions of said appointment order dated 15.6.94 are seen it becomes clear that it was not on account of recognition of hereditary right of the petitioner to perform puja but was by way of contractual appointment for performance of puja for a period of one year. When the said period of one year was to expire on 15.6.1995 it appears that on 2.6.95 by way of ingenuity the petitioner has approached this court claiming hereditary right of performance of puja apprehending that somebody else may be appointed by the Govt as pujari and therefore right which was abandoned as back as 20 years is sought to be reagitated though asseertion of such right was barred. The claim made by the petitioner, in view of the above, is barred by the provisions of Order 23 Rule 1 of C.P.Code and analogous principles thereto the petition is also barred by constructive resjudicata and principles of public policy and therefore, there is no substance in the contention of the petitioner that there is hereditary right of the petitioner to perform puja as Bhattji pujari of Ambaji Mataji temple and the State Govt is bound to recognise such right and the action of denying such right can not be sustained in the eye of law. 14. It is also required to be noted that the aforesaid aspect is coupled with the fact that the property and the administration of the temple is vested with the State Govt and when the State Govt has in the larger public interest has framed the scheme which only could provide for appointment of pujari it can not be said that the existing pujari has any vested right to perform puja in a temple over the right of State. Even during the earlier period when the temple was under the control of ruler it is wellknown that the pujari had right to perform puja and therefore he could receive his maintenance from the State or by accepting the offerings made to the God/Godess at the time of performance of puja. It is true that religious sentiments of the worshipers and the followers are attached to performance of puja where pujari plays an important role, but, at the same time, it would be against the basic principles of Hindu religion if the rights of pujari to perform puja are read for all times to come. In the case before the Supreme Court, i.e. Mst. Raj Kali Keur (supra) the question was whether a female has a share in the right to perform puja or not, and there the Apex Court held that the female member can have share, but in the case before us, the socalled right to perform puja, in any case, is abandoned and not only that but it is allowed to let go because of settlement by way of contractual appointment for a limited period and therefore neither the plaintiffs of Civil Suit No.77/61 nor their legal heirs can assert as a matter of right that they have right to perform puja and the State is bound to allow them to perform puja. It appears that petitioner and others who were party to civil suit No. 77/61 accepted the right of the State for appointment of pujari and abandoned the right to perform puja as back as in 1969 and continued to enjoy the benefits of such settlement. Therefore, raising dispute for the first time after a period of 25 years, i.e. in the year 1995 shows that the petition lacks bonafides and is nothing but a ingenuine attempt to see that only the petitioners and the plaintiffs of Civil Suit No.77/61 and their legal heirs are allowed to perform puja and therefore, I am of the view that the Special C.A.No.4441/95 is thoroughly misconceived and is barred by resjudicata and the principles analogous to the same and also lacks bonafides and therefore the petitioners can not be entrusted with the writ of this court nor on merits the petitioners are entitled to any relief from this court. 15. Now the facts of the Special Civil Application 6827/98 preferred by Krishnalal Vithalji Thaker during his life time are required to be examined. So far as late Krishnalal Vithalji Thaker is concerned, it is true that he was not party to the suit or the settlement arrived at in Civil Suit No.77/61. However, his name was considered for the first time when the order dated 4.5.95 came to be passed by the State Govt for making appointment of pujaris by rotation for each year to everyone whose names are mentioned in the said order. The contents of the said order dated 4.5.95 and its effect is also discussed earlier and therefore it is not repeated. However, the representation shows that after the appointment of Kantilal Mohanlal Thaker, late Krishnalal Vithalji Thaker was to be appointed from 16.6.98, but for the reasons which are not disclosed, it appears that as stated above, the son of Mahendrakumar Kantilal Thaker was continued as pujari pursuant to the order dated 15.6.98 though his legitimate claim was for the period from 16.6.97 to 15.6.98 and the petitioner-Krishnalal Vithalji Thaker also made representation to the State Govt on 5.6.98, and in the said representation (copy is at annexure "D" to the petition) it has been stated that attempts are being made by four persons who have already enjoyed the rotation of one year to see that the petitioner may not be allowed to perform puja and therefore he had requested the State Govt to pass appropriate orders. It appears that ultimately on 13.8.98 the order was passed for the appointment of petitioner-Krishnalal Vithalji Thaker as pujari and it is the case of the petitioner that he had taken over the charge on the very day, i.e. 13.8.98 and as per said appointment order the petitioner had to continue to perform puja upto 12.8.99 and pending