Research › Search › Judgment

Gujarat High Court · body

2008 DIGILAW 441 (GUJ)

MAHENDRA KANTILAL THAKAR v. VISHNUPRASAD K THAKAR

2008-09-30

R.M.DOSHIT, SHARAD D.DAVE

body2008
R. M. DOSHIT, J. ( 1 ) THIS group of four Appeals preferred under clause 15 of the Letters Patent arise from the judgment and order dated 19th september, 2006 passed by the learned single Judge in above Special Civil application No. 16200/2004. ( 2 ) THE subject matter of dispute in this group of Appeals is the right to appointment as Bhattji Pujari in the Ambaji Temple situated at Ambaji, Taluka Danta, District banaskantha. The Ambaji Temple (hereinafter referred to as, "the Temple")was, for centuries, the property of the erstwhile State of Danta. The then Ruler of danta State used to appoint Saraswat audichya Brahmins of Siddhpur as Bhattji pujari to perform Puja at the Temple. Since independence and on ceding of the State of danta in the Union of India, the Temple became of the ownership of the then State of Bombay. On 17th March, 1960, the State of Bombay framed a scheme for administration of the Temple. Under the said scheme, the Audichya Brahmins of siddhpur who possessed the qualification mentioned in the said scheme like knowledge of reciting vedas, mantras, etc. were made eligible for appointment as bhattji Pujari. Under the said scheme, three of the appellants in the present Appeals and predecessor of one of the appellants, kaushk Kanaiyalal Thakar and the predecessor of Shri Vishnuprasad Thakar [hereinafter referred to as, "the writ petitioner"], the writ petitioner in the above special Civil Application No. 16200/2004, were appointed to be the Bhattji Pujari. Each of the five Pujaris had to take turn of one year of performing Puja. Under the said scheme, the Bhattji Pujaris were entitled to, amongst other things, 25% of the donation received by the Temple. The said scheme was challenged by the appellants/their predecessors before the Court of learned civil Judge, Palanpur in Civil Suit No. 73/ 1961. In the said suit, one Shri Maharajshri prathisinhj, Diwan of the then State of danta made affidait. It was stated that the king of the Danta State employed members of the family of one Ranchhodji shivshankar, Audichya Sahastra Brahmin of Sidhpur as Pujari and Bhattji of Ambaji mata Temple for a period of four years in turn. The members of the said family were well versed with the pooja, archna, shangar and religious ceremonies of Mataji. They were appointed by virtue of hereditary right. The members of the said family were well versed with the pooja, archna, shangar and religious ceremonies of Mataji. They were appointed by virtue of hereditary right. For around 100 years, except the members of the said family, no other person was appointed as Bhattji Pujari. The said suit was settled out of the Court. On 18th february, 1969, the suit was disposed of in terms of the consent terms. According to the consent terms, the plaintiffs of the said suit, the present appellants, were continued us Bhattji Pujaris in rotation for a period of 20 years. It may be noted that the aforesaid scheme dated I7th March, 1960 was also challenged by the erstwhile Maharaja of danta before this Court in a writ petition. In view of the interim order made in the writ petition, the above referred consent terms were not implemented. After the disposal of the writ petition in the year 1974, the said consent terms became effective and remained operative for next 20 years i. e. until 1994. In the year 1994, the Collector proposed that one Kanaiyalal Thakar, the father of one of the appellant Kaushik kanaiyalal, be continued as Bhattji Pujari after expiry of his term as Bhattji Pujari on 18th May. 1994. Pursuant to the said proposal, by order dated 16th June, 1994, the said Kanaiyalal Thakar was appointed as Bhattji Pujari for the period from 16th june, 1994 to 15th June, 1995. On 4th march. 1995 the Government passed a resolution to appoint five persons as Bhattji pujari in rotation including one Krashnalal vitthalji Thakar, the father of the writ petitioner. Feeling aggrieved, the aforesaid kanaiyalal Thakar preferred Special Civil application No. 4441/1995 and claimed right to appointment as Bhattji Pujari by heredity. Pending the said petition, the State government, by Resolution dated 13th august, 1998, appointed the aforesaid krashnalal Thakar as Bhattji Pujari for a period of one year commencing from 13th august, 1998 to 12th August, 1999. The said appointment was cancelled by subsequent Resolution dated 20th August, 1998. Feeling aggrieved, the said Krashnalal thakar preferred Special Civil Application no. 6827/1998 before this Court. Pending the said petition, under interim order made by this Court (Coram: M. S. Parikh, J.), three of the other claimants were permitted to function as Bhattji Pujari by rotation except the above mentioned Krashnalal Thakar and : Kanaiyalal Thakar. Feeling aggrieved, the said Krashnalal thakar preferred Special Civil Application no. 6827/1998 before this Court. Pending the said petition, under interim order made by this Court (Coram: M. S. Parikh, J.), three of the other claimants were permitted to function as Bhattji Pujari by rotation except the above mentioned Krashnalal Thakar and : Kanaiyalal Thakar. The aforesaid Special civil Applications No. 4441/1995 and 6827/ 1998 came to be decided on 19th June, 2002 by the learned Single Judge (Coram: jayant Patel, J. ). The learned Single Judge held that the aforesaid Krashnalal had a right to act as Bhattji Pujari for a period of one year pursuant to his appointment made on 13th August, 1998. As by then the said krashnalal Thakar had passed away, his son, the writ petitioner, was permitted to complete one year of puja by allowing him to act as Bhattji Pujari for remaining 357 days. In compliance with the said direction, by Government Resolution dated 25th June, 2002 the writ petitioner was appointed as bhattji Pujari for 357 days. By Government resolution dated 16th June, 2003, until rules for appointment of Bhattji Pujari were made, by interim arrangement, three of the appellants before us and the aforesaid kanaiyalal Thaker were appointed as bhattji Pujari. The State Government has, by Resolution dated 17th September, 2004, modified the scheme especially clause 39 of i the scheme. The State Government decided that four appellants be appointed as Bhattji pujari in rotation for a period of one year. It is this modification of clause 39 and the consequent orders made on 17th September, 2004 which were subject matter of challenge before the learned Single Judge in the above Special Civil Application. ( 3 ) THE learned Single Judge was pleased to hold that the State Government had no reason to modify clause 39 of the scheme. The learned Single Judge accordingly set-aside the impugned government Resolution dated 17th september, 2004. The State Government was directed to take appropriate steps for appointment of new Bhattji Pujari on the basis of clause 39 of the scheme of 1960 by providing necessary qualifications in addition to those already prescribed under the said clause. Therefore, the present appeals. ( 4 ) IT is not in dispute that the present appellants are the heirs of the erstwhile bhattji Pujaris of Ambaji Temple. Mr. Thakor has appeared for the appellants. Therefore, the present appeals. ( 4 ) IT is not in dispute that the present appellants are the heirs of the erstwhile bhattji Pujaris of Ambaji Temple. Mr. Thakor has appeared for the appellants. He has submitted that the appellants do not claim hereditary right nor do they claim appointment as Bhattji Pujari on the basis of heredity. He has submitted that the challenge is to the order of the learned single Judge setting aside the Government resolution dated 17th September, 2004. He has submitted that it is true that the appointment of Bhattji Pujari can be made by selection from amongst the persons who are well-versed in reciting vedas, mantras, performing pooja and possess the required qualifications. But, at the same time, if the bhattji Pujaris are appointed by heredity, it is equally permissible. He has submitted that it has come on record that for centuries the Bhattji Pujaris in the Ambaji Temple were appointed by heredity. If the said convention is recognized and reaffirmed by the Government Resolution dated 17th september, 2004, the same cannot be said to be arbitrary. He has further submitted that under the impugned Resolution dated 17th September, 2004, the writ petitioner has not been totally ousted. He has been permitted to make representation and put forth his claim on the basis of heredity. If he can prove his claim on the basis of heredity, he can be appointed as Bhattji pujari along with the appellants by rotation. In support of his submissions, he has relied upon the judgments of the Hon'ble Supreme court in the matters of Chokalingaswami idol through its hereditary trustee R. N. Pillai v. Gnanapragasant (Dead) by Lrs. [ (2008)4 SCC 219 ]; of Ewanlangki-E-Rymbai v. Jaintia Hills District Council and others [ (2006)4 SCC 748 ]; of The commissioner, Hindu Religious endowments, Madras v. Sri Lakshmindra thirtha Swamiar of Sri Shirur Mutt [ air 1954 SC 282 ]; of Ratilal Panachand gandhi and Ors. v. State of Bombay and Ors. [ air 1954 SC 388 ]: of Sri Venkataramana devaru and Ors. v. State of Mysore and Ors. [ air 1958 SC 255 ]; of Seshammal and Ors. etc. v. State of Tamil Nadu [ (1972)2 SCC 11 ]; of Pannalal Bansilal Pitti and others v. State of A. P. and Anr. [ (1996)2 SCC 498 ]; of a. S. Narayana Deekshitulu v. State of A. P. and Ors. v. State of Mysore and Ors. [ air 1958 SC 255 ]; of Seshammal and Ors. etc. v. State of Tamil Nadu [ (1972)2 SCC 11 ]; of Pannalal Bansilal Pitti and others v. State of A. P. and Anr. [ (1996)2 SCC 498 ]; of a. S. Narayana Deekshitulu v. State of A. P. and Ors. [ (1996) 9 SCC 548 ] and of A. Ramaswamy Dikshitulu and Ors. v. Govt. of a. P. and Ors, [ (2004)4 SCC 661 ]. ( 5 ) LEARNED Advocate General Mr. Trivedi has appeared for the State. He has supported the Government Resolution dated 17th September, 2004. He has submitted that the scheme of 17th March, 1960 was framed by the then Government of Bombay. Clause 39 thereof provided for appointment of Bhattji Pujari. However, as seen above, the said clause 39 could not be implemented for various reasons. He has submitted that the power of the Slate Government to amend the scheme is not under challenge. In exercise of its power to frame the scheme, the State Government has, after due deliberation, decided to amend clause 39. By its Resolution dated 17th September, 2004, the State Government has recognized and accepted the centuries old practice of appointment of Bhattji Pujari by heredity. The action of the State Government cannot be said to be arbitrary or discriminatory. He has submitted that the learned Single Judge has erred in holding that there was no material before the State Government to modify clause 39 as has been done. He has submitted that there was material before the state Government. The sufficiency or otherwise of such material will not be the subject matter of scrutiny by the High Court in exercise of power conferred by Article 226 of the Constitution of India. In support of his submissions, Mr. Trivedi has relied upon the judgments of the Hon'ble Supreme court in the matters of BALCO Employees union v. Union of India and Ors. [ air 2002 sc 350 ] and of Basic Education Board, u. P. v. Upendra Rai and Ors. [ (2008)3 SCC 432 ]. He has also referred to the judgments in the matters of M/s. Kasturi Lal Lakshmi reddy, etc. [ air 2002 sc 350 ] and of Basic Education Board, u. P. v. Upendra Rai and Ors. [ (2008)3 SCC 432 ]. He has also referred to the judgments in the matters of M/s. Kasturi Lal Lakshmi reddy, etc. v. The State of Jammu and kashmir and another [ air 1980 SC 1992 ]: of State of M. P. and others Nandlai jaiswal and others [ air 1987 SC 251 ]; of shri Sachidanand Pandey and another v. The Stale of Went Bengal and others [ air 1987 SC 1109 ] and of Ashok Vora v. State of Gujarat and others [1998 (2) GLH 1027]. ( 6 ) THE Appeals are contested by Mr. Nanavati. He has appeared for the writ petitioner. He has submitted that the State government has not preferred appeal against the judgment of the learned Single judge. The State Government, therefore, has no right to support the present appellants. In absence of appeal preferred by the State Government, the present appeals by the other respondents are not sustainable. The contention is recorded with a view to rejecting the same out-right. The state Government having not challenged the judgment of the learned Single Judge, the present appellants have no locus standi to seek benefit of the Government resolution dated 17th September, 2004. He has relied upon the judgments in the matters of Chokalingaswami idol v. Gnanapragasam (Dead) by L Rs. [ (2008)4 scc 219 ]; of N. Adithayn v. Travancore devaswom Board and Ors. [ (2002)8 SCC 106 ] and of Seshammal and Ors. . etc. v. State of Tamil Nadu [ (1972)2 SCC 11 ). ( 7 ) THE questions that arise for our consideration are, whether the functions performed by Bhatlji Pujari at the Temple can be said to be secular or religious; and whether the appointment of Bhattji Pujari is the subject matter which affects the rights of the citizens conferred by Article 25 of the constitution of India. We have considered the principles laid down in the above referred judgments. ( 8 ) WE are of the opinion that the appointment of Bhattji Pujari is undoubtedly a secular function. However, the functions performed by Bhattji Pujari i. e. to offer puja approved by convention, is a religious function. We have considered the principles laid down in the above referred judgments. ( 8 ) WE are of the opinion that the appointment of Bhattji Pujari is undoubtedly a secular function. However, the functions performed by Bhattji Pujari i. e. to offer puja approved by convention, is a religious function. If keeping in view the centuries old convention the Slate Government has decided to appoint Bhattji Pujaris by heredity as has been done for last several centuries, we are of the opinion that there is nothing arbitrary about it. If the State government has power to frame the scheme, it also has the power to modify the same. In exercise of that power the State Government has recognized the age old practice and has altered the scheme of I960, which deviated from the age old practice and could not be implemented until the year 2008. We are unable to hold that the action of the State government is arbitrary or calls for interference in exercise of power of judicial review conferred by Article 226 of the constitution of India. ( 9 ) FOR the aforesaid reasons, we allow these Appeals. The judgment and order dated 19th September, 2006 passed by the learned Single Judge in above Special Civil application No. 16200/2004 is quashed and set-aside. The Special Civil Application no. 16200/2004 is dismissed. The parties will bear their own cost. Registry will maintain copy of this order in each Appeal. (AY) (Letters Patent Appeals Allowed) (Writ Petition Dismissed)