State Of Madhya Pradesh vs Vishnu Bharti

The appellants have filed the present appeal being aggrieved by the judgement and decree dated 17.04.1999, passed by the Additional District Judge, Sardarpur in Civil Appeal No.8-A/1998 whereby the judgement and decree dated 10.01.1998, passed by the Civil Judge, Class-II, Sardarpur has been partly allowed.

The respondent/plaintiff filed the suit for declaration and permanent injunction in respect of the land bearing Survey No.165, 167, 170, 400, 424 & 426 and a temple in the name of Shri Baijnath Mahadev Gufa Mandir, Amjhera. According to the plaintiff, he is performing as a Pujari in the Temple and in possession of the land as mentioned above. His ancestors were also Pujari of the Temple. The aforesaid land of Gram Chalni was belonging to Mandloi family of Amjhera which was given to a temple. The aforesaid land is recorded in the revenue records in the name of temple and Pujari. The land and the temple is a private property of the plaintiff. The name of the Collector has wrongly been mutated and the land has wrongly been put to auction on 15.06.1994. Hence, the plaintiff filed the suit for declaration of title that the temple and the land attached be declared as his private property and defendant be restrained to auction the same and the name of Collector recorded as Manager be removed. The defendant filed the written statement by submitting that the temple is a public temple and plaintiff is only a Pujari of the said temple and the name of the Collector has rightly been mutated in the revenue referred in light of the circular dated 21.03.1994 in place of Pujari. On the basis of pleading, the trial Court framed 5 issues for adjudication. Both the parties examined their witnesses. While answering issue No.1, learned trial Court has held that the plaintiff has failed to prove his title that temple and land is private property. So far as mutation of name of Collector is concerned it is for the plaintiff to challenge the circular dated 21.03.1994. While answering the issue No.3 & 4, learned Civil Judge has held that plaintiff is in possession and he cannot be removed without following the due process of law.

Being aggrieved by the aforesaid judgement and decree the plaintiff preferred the first appeal. Vide judgement dated 17.04.1999, learned Additional District Judge has partly allowed the appeal by holding that the name of plaintiff has been illegally removed from the revenue record without giving him notice and opportunity of hearing, hence, directed for recording his name. So far as the decree of permanent injunction is concerned, the first appellate Court has affirmed it. Being aggrieved by the aforesaid order, the defendants have filed the present appeal. Vide order order dated 27.09.2018, this Court has admitted the appeal on following substantial questions of law:

"1. Whether, the Court below has erred in restoring the Pujari in records as the Pujari is appointed by the State Government and property belong to Government?

Whether, the order of injunction is contrary to law as lands and its income is spent on maintenance of temple?

Whether such injunction can be issued in favour of Pujari when the property is in his possession by the permission of Government?"

Vide order dated 27.09.2018, this Court has framed Additional question of law which are as under:

"Whether, the first appellate Court has committed an error of law in examining the correctness and legality of the order dated 21.03.1994 and considering the issue of deletion of name of the respondent as Pujari from the revenue record without opportunity of hearing, through no such plea was raised in the plaint nor any relief to that effect was prayed?"

I have heard Shri Akshat Pahadia, learned GA for the appellants/State.

The respondent/plaintiff filed the suit seeking declaration that he be declared owner of temple as well as of the land. He has also sought relief that the defendant be restrained to auction and the notice dated 15.06.1994 be declared as illegal and defendant be restrained by way of permanent injunction to auction the suit property.

Learned trial Court vide judgement dated 10.01.1998 has held that the plaintiff has failed to prove the title over the temple as well as land. The said issue has attained finality as the same has been affirmed by the first appellate Court and no second appeal has been filed by the plaintiff. The only issue which has been decided by the trial Court in favour of plaintiff is that he cannot be dispossessed without following due process of law as he is in possession since the period of his forefathers. Even that relief has not been challenged by the defendants before the first appellate Court by filing first appeal.

The plaintiff filed the F.A.No.8-A/1998 in which the first appellate Court has held that name of Collector has been wrongly mutated in terms of circular dated 21.03.1994 without giving opportunity of hearing to the plaintiff, hence, directed for recording the name of the plaintiff.

This Court has framed the additional issue in respect of circular dated 21.03.1994 as the first appellate Court has examined the said circular without there being any challenge by the plaintiff. The validity of the circular dated 21.03.1994 came up for consideration before this Court in case of Ghyanshyam Das & Others Vs. State of M.P. reported in 1999 RN 235 in which by order dated 17.02.1995, this Court has quashed the circular by allowing the petition. The aforesaid order was challenged by the State of Madhya Pradesh by filing LPA 21/1996 (decided on 03.11.1998) (State M.P. Vs. Ghanshyam Das and Others, reported in 1999 RN 25). However, the Division Bench has also held that the Pujaris have no right to alineate the property of the temple. They have right to either cultivate the land or get it cultivated through servant. Thereafter, the State of M.P. came up with another circular dated 07.06.2008. The said circular was challenged by the Association of Pujaris before the writ Court. Vide order dated 07.06.2008, W.P.No.9043/2013 was allowed. The State of M.P. Preferred the Writ Appeal No.617/2014 (State of M.P. & Others Vs. Pujari Utthan Avam Kalyan Samiti, repor ted in (2017) 3 MPLJ 377). Vide order dated 14.06.2016, the writ appeal has also been dismissed. Relevant portion of the aforesaid judgement is reproduced below

"6. The State Government again issued memo / order dated 12.11.1992. The same was the subject matter in Letters Patent Appeal No.34/1994 (Shrikrishna v. State of Madhya Pradesh) reported in 2013 RN 215; a Division Bench of this Court by order dated 27.07.1995 quashed the circular by holding that by executive instructions, name of Pujari cannot be deleted from the revenue records and name of Collector of the District as Manager of the temple cannot be added. It is also held that as per Section 95 of the Indore Land Revenue & Tenancy Act, 1931, provisions of Section 64 of Land Revenue Code, 1950 (Madhya Bharat) and Section 158 (1) (b) of the Madhya Pradesh Land Revenue Code, 1959, Pujari of the temple has been recognized as Inamdar for rendering religious services and long possession and recorded name in revenue records as Bhoomiswami or Manager has definitely created as a right, but without notice, inquiry and providing hearing opportunity, by executive instructions, deletion of name of Pujari and adding name of Collector as Manager of temple is arbitrary. Paragraphs 5 -A and 7 of the judgment in the case of Shrikrishna v. State of Madhya Pradesh (2013 RN 215) are relevant; which read, as under: -

"5-A.From the discussion above, it is evident that all those persons who were granted land or were recognised as Inamdar (in the erstwhile Indore State) for the religious services rendered by them as Pujari of the Temple have been recognised to be a Bhoomiswami under the Code and their names appeared as such in Revenue Records. Since they were holding land for rendering religious services as Pujari of the Temple and the land was granted specifically for that purpose, the name of the Collector as Manager along with these pujaris was directed to be shown. This long possession and recording of their names in revenue records as Bhoomiswami or Managers has definitely created a right in their favour. It is an established principle of law that if any right has been vested in a person by certain statutory provisions, the same cannot be withdrawn by an executive instruction. Even if a person is required to be deprived of his vested right in a property, a legal procedure for the same will have to be adopted. If the State Government of MP feels that the recording of name of such persons as Bhoomiswami is non-est, then too it will have to give a notice to the person and an opportunity of hearing and after making due enquiry followed by a reasoned order (if it is found as such), the order for modification, corrections and change in the record can be done.

As a result, all these appeals succeed. The Executive Order Annexure P/5 dated 18.11.1992 whereby a direction for removal of names of Pujaris from revenue records has been issued, is quashed. In the facts and circumstances of the case, parties shall bear their own costs."

After quashment of 1992 circular, third circular was issued by the State Government on 21.03.1994 (Annexure P/14). This was also challenged before the learned Writ Court in the case of Ghanshyamdas & others v. State of MP & others and learned Writ Court by order dated 17.02.1995 WA No.617/2014 quashed the aforesaid circular by allowing miscellaneous petition (see 1995 RN 235). The aforesaid order of the learned Writ Court was challenged by the State of Madhya Pradesh by filing Letters Patent Appeal No.21/1996 before the Division Bench. A Division Bench of this Court by order dated 03.11.1998 reported in 1999 RN 25 dismissed the LPA filed by the State of Madhya Pradesh and upheld the order of the learned Writ Court by giving following reasons; paragraphs No.8, 13 and 22 to 28 are relevant, which read, as under: -

"8. In the Regulations, there are two types of Muafis, namely, 'Sanad-Kamil' and 'Sanad-Nakis'. "Sanad Kamil" is the grant by the ex-ruler of Gwalior State for religious purpose, and "Sanad Nakis" is treated to be a defective grant and not granted by the Government of Scindia. Muafi was of five types, namely, Dharmada, Nankar, Bagat, Devsthani and Chakrana. Regulation No.12 relates to Devsthani Muafi of "Sanad Kamil'. The condition was that Muafi will be recorded in the name of Devsthan or Peersthan i.e. in the name of temple or its deity. The Pujari's name will be recorded as Muafidar on the condition that he is competent to perform the functions of Pujari, his nearest heir who is competent to perform the functions of Pujari shall be nominated as Pujari. If on the death of Pujari his heir is minor then till he attains majority and is competent to perform the functions of Pujari, and other competent person shall be appointed to perform the functions of Pujari.

The rights of Pujari have been considered in the case of Pancham Singh and Kanchaniya (supra) and a bare perusal of Regulations 12 and 13 of the Regulations indicates that the Pujaris have no right to alienate the properties of the temple. They have to cultivate the land or to get the land cultivated through their servants for the maintenance of temple and its deity rituals. They do not acquire any right to alienate the property of the temple.

A qualification was prescribed according to Circular No.2 of Samvat 1976 by the Legislative Department that Pujaris who passed the process for performing worship shall only be competent to become a Pujari. But those who have not passed such examination, then it was held that only Ved Pathi, Dashgranthi, Scholars possessed with the knowledge of Shastra and able to perform the rites of thread ceremony (Yaghyopaveet) and marriage are competent to perform the religious worship can only claim rights of inheritance.

From a bare reading of Regulations 12 and 13 of the Regulations, it is apparent that the Pujari's right of inheritance is subject to his qualification and is not automatic.

No Pujari or trustee or manager can claim the title of religious property. The property always belongs to the temple i.e. deity.

In the case of Rameshchandra v. Janki Ballabhji (AIR 1970 SC 532) it is held that the Pujari claiming proprietory rights amounts to mismanagement and is not fit to remain in possession or to continue as Pujari. Therefore, the persons claiming title over the property of the deity are not liable to continue as Pujari.

The executive instruction issued by the Government is in the interest of the deity and to avoid wastage or misuse of the property of the temple. Even if the name of Pujari is recorded in column No.12 of the Khasra it will not affect the rights of Pujari so long as he is performing his functions property and cultivating the land or getting the land cultivated through servants.

It is, therefore, held that placing the name of Pujari in column No.12 of the Khasra does not affect the rights of Pujari. As discussed above and held in the cases of Kanchaniya and Pancham Singh (supra), the Pujaris do not have any right in the property of temple. Therefore, recording of their name in column No.12 will not affect their rights since their rights are not affected as measures have been taken by the Government for the safety of the temple's property, which cannot be faulted with. The Government have always the right to issue directions or preparing norms for preserving the property of deity. The judgment of the learned single Bench is contrary to the judgment of Kanchaniya's case (supra).

However, the directions of the State Government that the name of Pujari be deleted from all the columns of Khasra and should not be recorded anywhere is quashed, as the learned Advocate General frankly conceded that direction is bad in law."

Division Bench has held that Pujaris have no right to alienate the properties of temple. They have either to cultivate the land or get it cultivated through servants. The right of inheritance of Pujari is subject to his competence to work as Pujari. This is not automatic. Pujari claiming right of proprietorship is not eligible to work as Pujari. A Division Bench of the High Court of Madhya Pradesh (Bench at Gwalior) relying on the decision of the Apex Court in the case of Kanchaniya v. Sheoram (AIR 1992 SC 1239) and decision of the Madhya Pradesh High Court in the case of Pancham Singh v. Ramkishandas (AIR 1972 MP 14) directed the State Government that name of Pujari be deleted from the columns of Khasra and should not be recorded anywhere, because the same is bad in law.

The State of Madhya Pradesh is not satisfied with the quashment of three circulars i.e. circulars dated 12.04.1974, 12.11.1992 and 21.03.1994, issued another circular dated 07.06.2008, which is subject matter of the present writ appeal.

The learned Writ Court relying on the decision of the cases of State of MP & others v. Ghanshyamdas & others v. (supra), Kanchaniya v. Sheoram (supra) and Pancham Singh v. Ramkishandas (supra) has held that right of Pujaris continued from their forefather, cannot be taken away by executive instructions. There was no justification on the part of the State Government to advice to Revenue Commissioner to follow circular dated 21.03.1994, when the same was quashed. It is not in dispute that as per Clause 5 of the Land Records Manual in Column No.3 of Khasra Entries deals with the name of occupier; Column No.4 deals with name of bhoomiswami or lessees or his representatives while Column No.12 deals with the remarks. Undisputedly, the land, which is owned by the temple or deity or the land owned by temple or by the trust, name of the deity / temple or trust, as the case may be, is required to be mentioned in Column No.3. If the temple is managed by the Pujari, then keeping in view the law laid down by this Court from time to time, his name is required to be mentioned as Pujari along with the name of deity.

Therefore, the circular dated 21.03.1994 had been quashed by this Court. Hence, recording of name of the Collector as Manager by virtue of circular dated 21.03.1994 cannot be upheld. The first appellate Court has rightly directed for recording the name of plaintiff as Pujari. In view of the aforesaid decision by the Division Bench in case of Ghyanshyam Das & Others Vs. State of M.P. reported in 1999 RN 235, all the questions of law in this appeal are hereby answered against the appellants.

Appeal is accordingly dismissed.

No order as to costs.