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2016 DIGILAW 445 (JK)

Ram Murti v. Financial Commissioner

2016-09-01

TASHI RABSTAN

body2016
JUDGMENT : Tashi Rabstan, J. 1. Through the medium of this writ petition, the petitioner is seeking quashment of order dated 28.05.2002 passed by the Financial Commissioner, Revenue, J&K, Jammu, Respondent No. 1 herein, in File No. 740/AP-FC, whereby the revision petition filed by the petitioner came to be dismissed and the order dated 09.07.1998 passed by the Divisional Commissioner, Jammu, Respondent No. 2 herein, came to be upheld. Vide order dated 09.07.1998 the Divisional Commissioner upheld the order dated 09.08.1995 passed by the Deputy Commissioner, Kathua, Respondent No. 3 herein, whereby the petitioner herein was removed from the Managership of Shri Narsingh Ji Maharaj Temple at Village Meerth and a Pujari was appointed and Committee was constituted for management of the affairs of the temple. The facts-in-brief, as averred in the writ petition, are that the petitioner's forefathers were the Muhatamims/Managers of Shri Narsingh Ji Maharaj Temple at Village Meerth from time to time and the same legacy passed on to his father. It is averred that after the death of his father, he inherited the said rights and an entry to this effect has also been entered in the concerned revenue records. It is averred that in the year 1994 Respondents 5 to 10 with an intention to ouster the petitioner from the position of Muhatamim/Manager of the Temple started interfering into the affairs of the temple with an intention to ouster the petitioner. It is averred that compelled by the circumstances the petitioner filed a Civil Suit in the Court of learned Munsiff, Kathua on 03.09.1994 against the said respondents and the learned trial Court directed for maintenance of status-quo with respect to the affairs of the Temple till the disposal of the suit. It is averred that during the pendency of the suit, Respondents 5 to 10 herein preferred an application before the Deputy Commissioner, Kathua in the year 1995 for removal of petitioner from the Muhatamimship/Managership of the temple property. It is averred that Respondent No. 3 on the recommendations of Tehsildar Kathua passed order dated 09.08.1995 removing the petitioner from the position of Muhatamim/Manager of the Temple. Further, it is averred that against the said order, the petitioner filed an appeal before the Divisional Commissioner, Jammu, but the same too come to be dismissed on 09.07.1998. It is further averred that the petitioner preferred a revision petition before the Financial Commissioner, Revenue on 05.08.1998. Further, it is averred that against the said order, the petitioner filed an appeal before the Divisional Commissioner, Jammu, but the same too come to be dismissed on 09.07.1998. It is further averred that the petitioner preferred a revision petition before the Financial Commissioner, Revenue on 05.08.1998. It is averred that the Financial Commissioner too dismissed the revision petition filed by the petitioner. Hence, the present writ petition. 2. The contention of learned counsel for petitioner is that Respondent No. 3 without conducting proper inquiry or applying proper application of mind has removed the petitioner from the position of Muhatamim/Manager of the Temple. He further contended that Respondent No. 3 had no jurisdiction to remove the petitioner from the position of Muhatamim/Manager when the matter was already pending disposal before the Civil Court. The next contention of learned counsel for petitioner is that it is the Civil Court alone which has the jurisdiction to decide the civil rights of petitioner with regard to Muhatamim/Manager of the Temple in terms of Section 92 of the Code of Civil Procedure and the J&K Religious Endowments Act. He, thus, argued that the order impugned has been passed arbitrarily and in violation of the basic law and the procedure; therefore, the same is not maintainable and deserves to be set aside. 3. Objections have been filed on behalf of Respondents 4 to 10 denying that the forefathers of petitioner were managing the affairs of the temple. It is averred that the father of petitioner, namely, Hari Dass was given the responsibility to perform pooja in the temple. It is averred that the land measuring 1 kanal and 9 marlas was given to father of petitioner on donation by two persons, namely, Haria and Ram Chand for residential purposes as well as for performing pooja in the said temple. It is averred that the petitioner while acting as Muhatamim/Manager misused his position and was neither performing the pooja nor allowing the devotees to enter into the temple, which compelled inhabitants of the area to approach the Deputy Commissioner, Kathua, who after inquiry removed the petitioner from the position of Muhatamim/Manager. Further, it is averred that the suit filed by the petitioner pertained to 4 marlas of land only in Survey No. 539, which had been illegally occupied by him. Further, it is averred that the suit filed by the petitioner pertained to 4 marlas of land only in Survey No. 539, which had been illegally occupied by him. Further it is averred that the petitioner had also illegally occupied 4 marlas of land out of the land of temple falling under Survey No. 539 and now he has also been evicted from the said land by the Tehsildar Kathua vide Order No. OQ/101, dated 14.06.1994. 4. This writ petition for the first time came to be listed on 10.02.2003 when notice was issued to the respondents. The writ petition was admitting to hearing on 30.04.2004 and came to be reserved on 06.(sic).2016. However, the official respondents did not opt to file objections/counter during these more than thirteen years despite granting of several opportunities. 5. Heard learned counsel appearing for the parties and perused the file. 6. Admittedly, the suit came to be filed by the petitioner/plaintiff in September 1994 seeking an injunction order to the defendants therein from ousting him as Muhatamim of Mandir Narsingh Dev Ji Maharaj under Survey No. 539, measuring 15 marlas, situate at Village Merath, Kathua, and the learned Munsiff, Kathua vide order dated 03.09.1994 directed the parties to the suit to maintain status-quo. However, despite the operation of interim order issued by the learned Munsiff, the Deputy Commissioner, Kathua, vide order dated 09.08.1995 removed the petitioner from the Managership of Shri Narsingh Ji Maharaj Temple on the application filed by the people of the area. 7. Learned counsel appearing for official respondents, however, argued that in view of Proclamation (Ailan) No. 41, 23-Poh 1977, the Deputy Commissioner has the power/ authority and was very much competent to remove the petitioner from the Muhatamimship/Managership of the temple property. 8. After going through the relevant provisions and the pleadings of the parties, I do not find any force in the argument of learned counsel for official respondents simply for the reason that proclamations neither have any legal/constitutional base nor have any legal effect/force or any legal standing/justification; rather it is merely a public or official announcement dealing with a matter of great importance. Proclamations are just like executive orders. Executive orders are aimed at those inside government while proclamations are aimed at those outside government. Executive orders are generally directed to and govern actions by Government officials and agencies. They usually affect private individuals only indirectly. Proclamations are just like executive orders. Executive orders are aimed at those inside government while proclamations are aimed at those outside government. Executive orders are generally directed to and govern actions by Government officials and agencies. They usually affect private individuals only indirectly. Whereas, proclamations in most instances affect primarily the activities of private individuals. Thus, executive orders and proclamations are directives or actions by the Government, as such cannot be said to have any legal force. The only difference between executive orders and proclamations is more one of form than of substance. The proclamations, therefore, have no legally binding/sanctity and are at best hortatory. 9. Otherwise too, in terms of Section 92 of Code of Civil Procedure and Section 2 of the Religious Endowments Act, 1977, the Deputy Commissioner, Kathua had no authority to remove the petitioner from the position of Muhatamim/Manager of the temple. For facility of reference, it would be useful to reproduce Section 2 of the Religious Endowments Act, 1977 hereunder: "Person interested may singly sue in case of breach of trust, etc. Any person or persons interested in any mosque, temple or religious establishment, or in the performance of the worship or of the service thereof, or the trusts relating thereto, may, without joining as plaintiff any of the other persons interested therein, sue before the Civil Court the trustee, manager or superintendent of such mosque, temple or religious establishment, for any misfeasance, breach or trust or neglect of duty, committed by such trustee, manager or superintendent, in respect of the trusts vested in, or confined to them respectively; and the Civil Court may direct the specific performance of any act by such trustee, manager or superintendent, and may decree damages and costs against such trustee, manager or superintendent, and may also direct removal of such trustee, manager or superintendent." 10. Therefore, in view of the above legal position, it is clear that the Deputy Commissioner had acted beyond jurisdiction while making an order removing the petitioner from the position of Muhatamim of the temple. Such a power squarely lies with the civil court. The Deputy Commissioner had no authority to pass such an order, that too when learned Munsiff, Kathua had already directed for maintaining status-quo with regard to the property-in-question. Such a power squarely lies with the civil court. The Deputy Commissioner had no authority to pass such an order, that too when learned Munsiff, Kathua had already directed for maintaining status-quo with regard to the property-in-question. Further, the order of Deputy Commissioner reveals that no opportunity of hearing was ever provided to the petitioner before removing him from the position of Muhatamim of the temple. Not only this, this Court vide orders dated 25.02.2015 and 11.03.2015 had directed the official respondents to produce the relevant record pertaining to the inquiry conducted by the Deputy Commissioner, Kathua. However, the official respondents neither produced the record nor denied the claim of petitioner that his forefathers were the Muhatamims/Managers of Shri Narsingh Ji Maharaj Temple at Village Meerth from time to time and the same legacy has passed on to him and entries to this effect have also been entered in the concerned revenue records. Therefore, in absence of any stance on the part of official respondents, I have no reason to disbelieve the petitioner. Therefore, in view of the above discussion and the fact that the official respondents have neither filed the objections/counter for the last more than thirteen years nor produced the record as directed, I have no option but to allow the writ petition. Accordingly, the writ petition is allowed and the order dated 28.05.2002 passed by the Financial Commissioner, Revenue, J&K, Jammu, is hereby set aside. Consequently, the order dated order dated 09.07.1998 passed by the Divisional Commissioner, Jammu and order dated 09.08.1995 passed by the Deputy Commissioner, Kathua shall also stand set aside. Connected miscellaneous petition, if any, accordingly stands disposed of.