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2013 DIGILAW 1027 (PAT)

Birmani Upadhyay v. State of Bihar

2013-08-21

AJAY KUMAR TRIPATHI

body2013
ORDER The two petitioners before this High Court are said to be the President and Secretary of what is known as Rajgir Tapoban Tirth Raksharth Panda Samiti. They have not only approached this Court in individual capacity but also in representative capacity and are aggrieved by the decision of respondent Board of Religious Trust since a scheme has been formulated in relation to Rajgir Tapoban Hot-spring Kunds contrary to their interest, right, as well as a historical endowment and right conferred upon them centuries ago and recognized so by every regime or government. 2. At the very outset it is required to be noticed that the scheme contained in Annexure-12 dated 19/09/2008, which is under challenge, had a validity of 5 years. That 5 years is going to expire in less than a month now. No purpose therefore would be served by quashing the scheme at such a belated stage but non-interference with the scheme contained in Annexure-12 does not amount to judicial approval of the scheme or validity thereof for many a reasons which will follow. 3. As per the assertion in the writ application Rajgir, now situated in the district of Nalanda, has been historically and archeologically recognized as an important place of pilgrimage not only for the Hindus but even Budhist, Jains and maybe Mohammedans as well. Rajgir has acquired significant position in history over a period of time. The historical importance of religious significance for the Hindus is well recorded and documented. The present petitioners are supposed to be part and chain of Pandas who were invited many-many centuries ago from Maharashtra to perform religious rituals for the Hindus. This was on an invitation and conferment of such right by one of the ancient Kings known as Raja Basu. The 14 gotras of Brahmins from Maharashtra who were invited initially have multiplied over a period of time and the present petitioners and those they represent are the descendants of the original 14 gotras from Maharashtra. They continued to perform the rituals and the duties which are expected out of them. The above facts have been duly recorded in various writings as well as gazettes published by people of significance belonging to the Mughal as well as the British period. Reading of all those materials surely brings out the importance of the role which the community have played for centuries. 4. The above facts have been duly recorded in various writings as well as gazettes published by people of significance belonging to the Mughal as well as the British period. Reading of all those materials surely brings out the importance of the role which the community have played for centuries. 4. What is of significance which has emerged from the pleadings and the annexures annexed with the writ application is that some time in the year 1929 a Title Suit No. 28 of 1929 was instituted in the court of Sub Judge-II, at Patna by one Md. Waliul Haque for a declaration that Mohammedan Community had an absolute right on the water of the Saptkund as well as its use because the said property was part and parcel of a settlement made in favour of the community during Mughal period. 5. Petitioners have annexed the judgment dated 9th July, 1932 as Annexure-1 to the writ application. The judgment runs into almost 140 pages and this Court must give credit to the learned Sub Judge who had taken pains to decide the issue after a lot of hard-work which is evident from the adjudication. The suit ultimately was dismissed holding the right of the Hindus over the hot-springs having religious significance for them, except for one Kund which is known as Makdumpur Kund. 6. The learned Sub Judge had taken note of various materials including historical treatise and commentaries which were produced on behalf of the contesting parties. They have been meticulously taken note of, analyzed and then opinion rendered in several paragraphs. The Court would like to quote one of the paragraphs of the judgment contained on page 60.– “Like other place of Hindu pilgrimage there are Pandas at Rajgir whose function is to look to the comfort and convenience of the pilgrims and to help them in performing all the religious rites at the Tirtha. The existence of Pandas at Rajgir is definitely referred to in the note of Mr. Francis Buchanan reproduced in the East India Gazetter Vol.11 page 443, and in the note of Mr. M A Stein, referred to above it is stated:- “Even now a considerable portion of the population of Rajgir consists of Brahmins Purohits living on the pilgrims attracted to the place”. Francis Buchanan reproduced in the East India Gazetter Vol.11 page 443, and in the note of Mr. M A Stein, referred to above it is stated:- “Even now a considerable portion of the population of Rajgir consists of Brahmins Purohits living on the pilgrims attracted to the place”. There is abundance of reliable evidence on the side of the defendants which proves that Pandas remain in attendance at the Kund and that the Pandas make the pilgrims perform Sankalp, help them in taking bath and in performing worship in the kunds at Rajgir particularly in the Brahmkund and in the Saptdhara Kund. Shamshul Ulema Nawab Syed Imdad Imam (P.W.19) and Mr. Justice Fazl Ali (P.W.20) have testified to the attendance of Pandas at the Saptdhara Kund. PW-4 has also spoken about the presence of Pandas at the Saptdhara Kund.” 7. Another significant finding which has been recorded is that there is ample evidence to come to a finding that the Pandas are in full possession and in control of the Kunds. The survey records of right have clearly proved and established that the Pandas are in possession and in control of the Kunds. The Pandas of Rajgir have historic right to realize Dakshina from pilgrims to the kunds and they are ones who take care of the over-all upkeep, cleanliness and repairs etc. 8. There are many other significant findings which have been recorded by the learned Sub Judge in the said judgment. It is an important piece of judgment in support of what has been asserted by the petitioners in the writ application. The judgment of the learned Sub Judge has been affirmed in appeal by Patna High Court. A copy of the said decision of the High Court is also on record as Anneuxre-2, which reiterates the position and finding given by the trial court. These judgments are also interesting to read since traces the history as well as the role which the community of Pandas have played for centuries and recognized so. 9. No doubt after India gained independence, an enactment known as Bihar Hindu Religious Trust Act, 1950 was enacted with the object of providing better administration of Hindu Religious Trusts and for preservation of properties appertaining to such trusts. That was the prime objective for which Bihar Hindu Religious Trust Act, 1950 was enacted. 10. 9. No doubt after India gained independence, an enactment known as Bihar Hindu Religious Trust Act, 1950 was enacted with the object of providing better administration of Hindu Religious Trusts and for preservation of properties appertaining to such trusts. That was the prime objective for which Bihar Hindu Religious Trust Act, 1950 was enacted. 10. The power and duties of the trust board are laid down in Chapter V, especially section 28 of the said Act. The validity of the Act as such is not an issue and the Court would also not go to the extent of holding that the Board has no role to play in affairs of Hindu Religious Trusts with the object of better administration and protection, including preservation of such properties. 11. A reading of the various provisions would indicate that the role of the Board for intervention applies only to trusts which are public in nature and not private trusts. 12. The power which has been conferred upon the Hindu Religious Trust Board by virtue of the Enactment does not mean that the Act will over-ride all other declarations, adjudications, as well as proclamation which may have been made by a court of law, in relation to a religious place of significance, including the present case of the Rajgir Kunds. If there were no judicial pronouncements on the issue at any point of time, maybe the Religious Trust Board could have started with a clean slate. 13. A right which has been coming upon a group of people for centuries and recognized so from generation to generation coupled with a seal of judicial finding, cannot be brushed aside or ignored lightly in the name of enforcement or implementation of the objects of Hindu Religious Trust Act. 14. The Board has an obligation to ensure that the rights which have been conferred upon this section of persons and duly recognized and declared also by a court of law does not become inoperative or ineffective merely because a long time had passed since such findings and declaration was made by a court. Judicial declarations are not like perishable commodity with a limited shelf life. If such a view is permitted to be taken, sanctity of judicial adjudications and declarations would have no meaning for some. They cannot be permitted to be flouted merely because such adjudications had been made a century ago or so. Judicial declarations are not like perishable commodity with a limited shelf life. If such a view is permitted to be taken, sanctity of judicial adjudications and declarations would have no meaning for some. They cannot be permitted to be flouted merely because such adjudications had been made a century ago or so. Since the judgment of the learned Sub Judge, contained in Annexure-1, is not only a judicial declaration but a piece of significant findings based on important evidence, this Court cannot ignore the same or be unmindful of their right whose safeguard the petitioners are looking for through the present writ application. 15. Prima facie the Court is of the opinion that the respondents have violated as well as transgressed the right of the petitioners by constitution of a committee unilaterally and ignoring their historical right as well as judicial right which has been noticed in the earlier part of the order. 16. There is obligation upon the Board therefore to maintain the harmony between right of such individuals as a class vis-à-vis objectives which are required to be achieved through the enactment of 1950. The two have to be harmoniously applied and it cannot be a case of the Hindu Religious Trust Board that all the rights, duties and obligations created in favour of a class of people can be over-looked or ignored in administration of such religious places. 17. In fact this Court has certain reservation whether in absence of a public trust, as such, in place, the intervention of such kind could be made by creating a committee, as has been done by Annexure-12. 18. The writ application stands allowed with a clear observation that in case the Bihar State Board of Religious Trust decides to go for formulating a fresh scheme relating to Rajgir Tapoban they will keep in mind what has already been briefly taken note of in the earlier part of the order. I am sure the President of the Board who has a reputation of being a scholar of sorts will look into the historical background emanating from the judgments which have been annexed with the writ application, to enlighten himself with regard to the historical right which the present petitioners have acquired over centuries. I am sure the President of the Board who has a reputation of being a scholar of sorts will look into the historical background emanating from the judgments which have been annexed with the writ application, to enlighten himself with regard to the historical right which the present petitioners have acquired over centuries. Any decision which may also be by way of formulation of a scheme, cannot be in derogation of their customary right, which is well protected historically and judicially.