Temple Thakurdwara vs Sihanu Ram

This second appeal u/s 104 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 arises out of proceedings upon an application u/s 11(1) of that Act.

The respondent, who is the tenant of the appellant, applied u/s 11(1) of the aforesaid Act for the acquisition of the rights of the landowner in the land held by him as tenant. The application was rejected by the Compensation Officer. On appeal, the learned District Judge, Bilaspur, set aside the order of the Compensation Officer and held the respondent entitled to the grant of proprietary rights. The learned District Judge took the view that the Appellant, a Hindu idol, must be treated to be a perpetual minor, but as it had not been shown that it was not without other means of livelihood and also because the plea that it had no other means of livelihood had not been taken in the objections before the Compensation Officer, he held that the benefit of Section 11(2) was not available to the Appellant. It was also contended before the learned District Judge that Section 11 of the Act was invalid inasmuch as property dedicated to a Hindu idol could not be alienated. The learned District Judge held that no question of alienation arose under the provisions of Section 11 of the Act. He also referred to the decision in Sri Namdhari Gurudwara v. Nakbinoo 1969 P.L.R. 71 3431, where Dua C.J., has observed that Section 11 of the Act does not contravene Article 26 of the Constitution.

In this appeal, it was urged by the Appellant that the conditions set out in Section 11(2) of the Act are satisfied inasmuch as a Hindu idol is a minor or a person suffering from physical or mental disability incapable of earning his livelihood and that it has no other means of livelihood. This appeal was heard along with Negi Ram v. Mandir Shivji Maharaj Letters Patent Appeal No. 30 of 19712, and learned Counsel for the Appellant stated that he adopted the submissions raised on behalf of the Respondent in that case. For the reasons on which I have held in that case that a Hindu idol cannot be said to be a minor or a person suffering from physical or mental disability incapable of earning his livelihood within the terms of Section 11(2) of the Act, the contention raised on behalf of the Appellant in this case also must be rejected. For the same reason as in that case, I consider it un-necessary to enter into the question whether the Appellant has any other means of livelihood besides the income from the land in dispute.

An attempt was made on behalf of the Appellant to show that Section 11 contravenes Article 26 of the Constitution which guarantees to all religious denominations the right to own and acquire property. The very point urged before us was 1. 1969 71 P.L.R. 343. considered in Sri Namdhari Gurudwara v. Nakbinoo (supra). It was held that Article 26(c) did not confer upon a religious denomination any greater right in property than was possessed by a citizen in respect of similar property, and that Section 11 of the Hiamchal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 could not be said to contravene Article 26(c) of the Constitution. In Laxminarayan Temple, Kothure v. Laxman Mahadu Chandore AIR 1970 Bom. 233, the Bombay High Court pointed out that Article 26(c) only meant that every religious denomination would have the same rights in respect of the ownership and acquisition of movable and immovable property as were available to other members of the public. The learned Judges held that Article 26(c) is not violated by those provisions of law which are of general application and which do not specifically relate to the property rights of religious denominations. It was held by a Full Bench of the Kerala High Court in Narayanan Nair v. State of Kerala ILR 1970 (2) Ker 3154 that the right guaranteed by Article 26(c) was subject to the ordinary laws. It seems to me that the contention is without force and must be rejected.

It is pointed out by learned Counsel for the Appellant that a part of the land mentioned in the Respondents application u/s 11(1) of the Act had been acquired by the Government, and therefore, the decree under appeal should be modified accordingly. That matter has now been resolved by an affidavit of the Respondent filed in this Court wherein he states:

That out of the land in dispute, Khasra No. 203, measuring 9 biswas, Khasra No. 203/2 min. measuring 3 bighas and 10 biswas, Khasra No. 205 measuring 4 bighas and 6 biswas, Khasra No. 255 measuring 2 bighas and 15 biswas and Khasra No. 255/2 measuring 9 bighas and 1 biswa has been acquired by the Government for the construction of Police line and road.

That the acquisition proceedings with regard to the land referred to above have been concluded.

That I do not press my application for acquiring of proprietary rights to the extent of land acquired. Rest of the land is in my possession and I am the owner of the same.

In the circumstances the Respondent is entitled to a decree in respect of that part of the land only which has not been acquired by the Government.

The appeal is allowed in part. The Respondent is entitled to the grant of proprietary rights in respect of the land in dispute except that comprised in Khasra No. 203, measuring 9 biswas, Khasra No. 203/2 min. measuring 3 bighas and 10 biswas, Khasra No. 205 measuring 4 bighas and 6 biswas, Khasra No. 255 measuring 2 bighas and 15 biswas and Khasra No. 255/2 measuring 9 bighas and 1 biswa acquired by the Government for the construction of Police lines and road. The decree of the lower appellate court is modified accordingly. In the circumstances, there is no order as to costs.

Chet Ram Thakur, J.

I agree.