Research › Browse › Judgment

Himachal Pradesh High Court · body

1978 DIGILAW 41 (HP)

GEKH RAM v. OM PRAKASH

1978-08-23

H.S.DUBEY

body1978
JUDGMENT H. S. Dnbey, I. A. S.—This is an appeal filed by Shri Gekh Ram, against the orders of the learned Commissioner, dated 20-9-67, whereby he accepted the appeal of the present respondent and set aside the orders of the Collector, Kulu, appointing Shri Gekh Ram as Kardar of Devta Jawanu Mahadev, Tehsil and District Kulu. 2. The material facts giving rise to the present case before me are that Shri Rewat Ram, Kardar of DevtaJawanu Mahadevdied on 5-10-1962. In order to fill in the vacancy of Kardar, the Tehsildar, Kulu invited applications from interested persons. Although a number of applications were received, only two candidates viz. S/Shri Om Parkash and Gekh Ram ultimately remained in the field. On the recommendations of the Tehsildar, Kulu, the Deputy Commissioner appointed Shri Om Parkash, minor son of the deceased Kardar Sh. Rewat Ram, as Kardar vide his orders dated 11-5-1964. Shri Hari Chand, the real uncle of Shri Om Parkash was appointed as Sarbrah during the minority of the latter. This order was agitated in an appeal by Shri Gekh Ram before the Commissioner, Ambala and Jullundur Divisions, who vide orders dated 26-3-1965 remanded the case to the Collector, Kulu. In compliance with the remand order, the Collector conducted an enquiry into the matter though the General Assistant to the Deputy Commissioner, Kulu and appointed the present appellant, Shri Gekh Ram as Kardar vide orders dated 31-12-1966. Against this order, Shri Om Parkash filed an appeal before the Commissioner, Himachal Pradesh who reversed the order of the Collector, Kulu dated 31-12-1966 and appointed Shri Om Parkash as Kardar of the Devta. It is against this order of the learned Commissioner that the present proceedings have arisen before me. 3. This case was fixed for arguments on 25-3-1977 on which date the learned counsel for the appellant argued his case. The learned counsel for the respondent made a request for short adjournment to study certain points raised by the counsel for the appellant. The request was allowed and the case was adjourned. Ultimately the case up for further arguments on 26-8-1977. On this date neither the respondent nor his counsel appeared in the court inspite of service of summons upon the respondent. In the circum stance;,, the case against the respondent was proceeded against ex pane and the judgment was reserved. The request was allowed and the case was adjourned. Ultimately the case up for further arguments on 26-8-1977. On this date neither the respondent nor his counsel appeared in the court inspite of service of summons upon the respondent. In the circum stance;,, the case against the respondent was proceeded against ex pane and the judgment was reserved. In the meantime, the learned counsel filed an application on 20-9-77 praying for the ex parte proceedings being set aside. The ground on which this request was made was that the respondent though served could not reach Simla due to the closure of roads in Kulu district as a result of heavy rains in August, 1977. This application was duly supported by an affidavit. It was further prayed that in case, it would not be possible to fix the case for arguments again, the written arguments which were enclosed with the application be considered before deciding the case. 4. I have considered the above application and am convinced that the reason advanced by the respondent is quite plausible as in rainy season the roads in Kulu district generally do get blocked due to landslides etc. I, there fore, set aside the ex parte proceedings against the respondent in the interest of justice and allow the written arguments on his behalf. 5. The learned counsel for the appellant assailed the order of the Commissioner on the ground that the officer of the Kardar of the Devta was not a hereditary one. He stated that the learned Commissioner had erred in giving weightage to the entry in the Wajib-ul-Arz and basing his findings on this document. In support of his case, he cited RLR (Punj & Hr.) 1973-P-727 and tried to establish that the office of the Kardar was not hereditary and an appointment made on the basis of heredity was violative of Articles 14, 15 and 16 of the Constitution. He also cited AIR-1967- Supreme Court-P-1044 and urged that Devta was a minor and the person to be appointed as its Kardar should be one who could properly look after the affairs of the Devta. He further stated that the appointment of the respon dent as Kardar’ was bad in law in view of the fact that his father had been negligent enough in not receiving compensation from the occupancy tenants to whom considerable area belonging to the Devta was transferred. He further stated that the appointment of the respon dent as Kardar’ was bad in law in view of the fact that his father had been negligent enough in not receiving compensation from the occupancy tenants to whom considerable area belonging to the Devta was transferred. It was also urged that the Collector, Kulu had passed orders appointing the appellant as a Kardar after ascertaining the wishes of the worshippers on the basis of voting. 6. On the other hand, the learned counsel for the respondent in his written arguments has stated that the authorities cited by the learned counsel for the appellant are not applicable in the present case as it was not an ap pointment to an office, much less to a public office. He stated that it was a case of succession to Kardarship under the customs enunciated in the Wajib-ul-Arz. He discarded the authorities cited by the learned counsel stating that they had no bearing on the present case. In support of his case, he cited AIR 1955 SC P. 493 and AIR 1963 AP P. 375- and sought to make out that this was a clear case of succession and that inheritance was the sole criterion. Kardarship being a private office was governed by the custom given in the Wajib-ul-Arz. 7. I have considered the above arguments of the learned counsels for the both the parties and have gone through the case carefully. The crux of the matter in the case before me is whether the office of Kardar is hereditary or not. Guidance in this behalf is available from the -Wajib-ul-Arz which is a part of the records of right and carries with it the presumption of tiuth. The relevant provision regarding appointment of Kardar as given in the Wajib-ul-Arz reads as follows :— 8. A plain reading of the above extract from the Wajib-ul-Arz leaves little room for doubt that the appointment of Kardar is made on the basis of heredity. It is only in the event of a breach of any of the conditions given in the Wajib-uI-Arz’ that the Kardar can be removed on an application to he moved by the worshippers of the Devta and another person appointed in his place with the consent of the worshippers. It is only in the event of a breach of any of the conditions given in the Wajib-uI-Arz’ that the Kardar can be removed on an application to he moved by the worshippers of the Devta and another person appointed in his place with the consent of the worshippers. Let it be reiterated here that this document is a part of the record of rights and carries with it a presumption of truth unless rebutted. There has been no attempt on the part of the appellant to discharge the onus to rebut the presumption. As Thomason has remarked, "the village administration paper is the most important of all the papers for it is intended to show the whole of the Constitution of the village". The contention of the learned counsel for the appellant that the appointment made on the basis of heredity is violative of Article 14 of the Constitution is not tenable inasmuch as the appellant was afforded the opportunity to establish his claim. Reference to Article 16 of the Constitution is equally out of place since Kardarship is not a public Office. This view finds support from the authority cited by the learned counsel for the respondent in case Manepalli Sattemma v. Manepalli Satyanarayana and another, AIR 1963 Andhra Pradesh P. 375, in which it has been held inter alia that "it is only when an element of discrimination is introduced in the matter of making selections to a post under the State that Article 16 of the Constitution is attracted. In the absence of any such ingredient it is difficult to premise that it falls within the purview of Article 16". Viewed in this light, the case of Karnail Singh v. The State of Haryana and others, RLR 1973 (Pb. & Hr.) c. 727 has no relevance to the present proceedings as it relates to the appointment of Lambardar which is a public office. Similarly, the case Vishwa Nath and another v. Sri Thakur Radha Ballabhji and others, AIR 1967 SC P. 1044 is also not relevant. & Hr.) c. 727 has no relevance to the present proceedings as it relates to the appointment of Lambardar which is a public office. Similarly, the case Vishwa Nath and another v. Sri Thakur Radha Ballabhji and others, AIR 1967 SC P. 1044 is also not relevant. The plea taken that the respondents lather had acted adversly to the interest of the Devta in not realizing the compensation due to theDevtaduring his life time cannot also be accepted inasmuch as according to the terms of the Wajib-ul-Arz, it was the duty of the worshippers including the appellant to have moved an application for the removal of the deceased Kardar, Shri Rewat Ram. Even assuming that the late Kardar was negligent in the discharge of his duties by not looking after the interests of the deity, I do not see by what logic his son can be visited with penalty for any acts of omission and commission by his father. Present day criminology does not subscribe to the theory, of transmission by heredity of minor delinquencies ; and in any case, Indian jurisprudence does not pass on culpability to the offspring for the mistakes of their progenitors. I, therefore, agree with the learned counsel for the respondent that this is a case of succession and the same is governed by the provisions of the "Wajib-ul-Arz". I can do no better than quote the well established principle from AIR 1955 SC P. 493, Smt, Raj Kali Kuer v. Ram Rattan Pandey, as follows:— "that religious offices can be hereditary and that the right to such an office is in the nature of property under the Hindu Law, is now well established." 9. In view of the above discussions, I hold that the office of the Kardar is not a public office and appointment thereto is governed under the provisions of the Wajib-ul-Arz. This being so, the order of the learned Commissioner which is well considered and fully merited is hereby upheld. In the result, the appeal which has no force is dismissed. Orders to be communicated. Appeal dismissed.