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Himachal Pradesh High Court · body

1981 DIGILAW 54 (HP)

RAJ KUMAR v. PREM SINGH

1981-09-30

ANANG PAL

body1981
ORDER This is an appeal against the order of the learned Divisional Commissioner dated 22-5-198 lf accepting the appeal of the respondent Sh. Prem Singh and setting aside the order of the Collector, Kulu, dated 27-4-1979. appointing the present appellant as Kardar through his mother of Devta Gehri (Birnath) of Dhalpur, Tehsil and District Kulu. 2. The facts leading to the present appeal, in brief, are that Sh. Ram Dass, Kardar of Devta Gehri (Birnath) Tehsil and District Kulu, died on 10-10-1977. The Tehsildar Kulu, invited applications from the followers and worshippers of the Devta for the appointment of a new Kardar on 11-11-1977. Four applications including those of the present appellant and respondent were received. On 7-11-1978, the Tehsildar, Kulu, recorded the statements of the followers and worshippers so as to know their opinion about the candidates. 136 followers/worshippers favored the appointment of Sh. Prem Singh while 98 supported Sh. Raj Kumar, the present appellant. The other two candidates Sh. Manual Chand and Sh. Daya Ram withdrew from the contest. The Collector, Kulu, after giving opportunity of presenting their cases to Shri Prem Singh and Raj Kumar, appointed the present appellant Sh. Raj Kumar through his mother as Kardar of the Devta. Sh. Prem Singh, the present respondent, submitted an appeal before Commissioner against the order of the Collector on the following grounds : (i) That, according to the Wajub-ul-arj, the Kardar :is appointed with the majority votes of the worshippers of the deity and that hereditary claim is also taken into consideration. The appellant (Prem Singh) had obtained more votes and that he had preferential hereditary claim also as the office of the Kardar had been held by the appellants grandfather and father ; and (ii) That a minor cannot be appointed as the Kardar. The position of the deity is that of a minor and, as such the affairs of the deity could not be entrusted to a person who is cot legally competent to perform the same. 3. The learned Commissioner held that the respondent (Raj Kumar) being a minor would not be able to manage the affairs of the deity. He also took into account the fact that previously the office of the Kardar had been held by the family of the appellant (Sh. Prem Singh). On these grounds, the learned Commissioner accepted the appeal and appointed Sh. He also took into account the fact that previously the office of the Kardar had been held by the family of the appellant (Sh. Prem Singh). On these grounds, the learned Commissioner accepted the appeal and appointed Sh. Prem Singh, respondent before me, as Kardar of the Devta. 4. The present appeal before me of Sh. Raj Kumar has been preferred on the following grounds : (1) That the learned Divisional Commissioner did not consider that when once line of the succession of Kardar has been broken, the succession was to follow the new line ; (2) That it had been held previously by the Financial Commissioner that minority was not a bar to the appointment of the office of the Kardar; and (3) That the appeal before the Divisional Commissioner was not competent as under the Wajub-ul-arj it is the Collector, who is to appoint the Kardar. 5. The case came up for hearing before me on 26-9-1981. The learned Counsel for the appellant aid emphasis on the grounds—first, that the appeal before the learned Commissioner was not maintainable ; and secondly, that the office of the Kardar was hereditary. He further argued that minority was not a bar for appointment to this office. The learned Counsel for the respondent advanced the arguments to rebut the grounds of appeal saying that the appeal against the orders of the Deputy Commissioner had been entertained in the past and was maintainable because according to the Wajub-ul-arj the final authority vested in the Government. He further referred to the decision taken in M. S. A. No. 70 of 1969, Sh. Mandir Shhji Maharaj Durla v. Sh. Negi and others, decided on July 29, 1971, by Mr. Justice D. B. Lai, [ILR 1971 100] holding that the position of the idol is that of a minor and that under Section 10 of the Hindu Minority and Guardianship Act, 1956, a minor was not competent to act as guardian of the property of any minor. On these grounds, he argued that the appointment of Sh. Raj Kumar, minor, as Kardar was not maintainable. 6. On these grounds, he argued that the appointment of Sh. Raj Kumar, minor, as Kardar was not maintainable. 6. On the basis of the arguments advanced by the learned counsels for both the parties, the points which arise for determination in the appeal are: (a) Whether the order of the Deputy Commissioner regarding the appointment of Kardar is final; (b) Whether Kardar is the guardian of the deity and if so whether a minor can be appointed as Kardar of the deity. 7. The relevant Wajub-ul-arj pertaining to this deity is as follows : The Wajub-ul-arj lays down that the Kardar will be appointed with the sanction of the Government. The powers of the State Government under the Wajub-ul-arj have not been delegated to the Deputy Commissioner. I, therefore, hold that the orders of the Deputy Commissioner are not final and can definitely be examined and reviewed in appeal by the higher officers. The second point for determination arising out of the appeal is whether Kardar is a guardian and if so whether a minor can be appointed as a Kardar. Since the appointment of the Kardar is made in accordance with the provisions of Wajub-ul-arj, we have to see the relevant portion of the Wajub-ul-arj to determine the status of the Kardar. The relevant portion reads as follows : 8. The Wajub-ul-arj lays down that the employees of the Devta are of two categories. Kardar falls in the first category of the employees. The Wajub-ul-arj also lays down that the employees have no right to dispose of the property of the Devta. A careful perusal of the Wajub-ul-arj will, thus, establish that Kardar is an employee and not guardian of the Devta. I, therefore, hold that the provisions of Section 10 of the Hindu Minority and Guardianship Act, 1956, are not attracted in the appointment of the Kardar. The third and last point for determination, therefore, is as who of the two—the appellant and the respondent—has a better claim to the office of the Kardar on the ground of hereditary and the wishes of the people. It is not disputed by either party that prior to the present Kardar his father was working as Kardar. It is correct that the grand-father and father of the respondent had been working as Kardars but that line of succession ceased with the appointment of the father of the present appellant as Kardar. It is not disputed by either party that prior to the present Kardar his father was working as Kardar. It is correct that the grand-father and father of the respondent had been working as Kardars but that line of succession ceased with the appointment of the father of the present appellant as Kardar. According to the Wajub-ul-arj, the majority opinion is to be taken into consideration only when the appointment is to be made after the removal of the previous Kardar. The present case is one of succession and not of appointment after removal. 9. I, therefore, accept the appeal and set aside the orders of the learned Commissioner. 10. To be communicated. Appeal allowed.