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2019 DIGILAW 1457 (HP)

Kiran v. Jai Jawala Langar Samiti Bathinda

2019-09-27

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present application under Section 151 of the Code of Civil Procedure has been maintained by the applicant-respondent for modification of order dated 2nd November, 2017, passed by this Court in CMP No. 9268 of 2017. As per the applicant, since the year 1987 the applicant is performing Bhandara/Langar during the Navratras and the next Navratras are going to commence from 29th September, 2019 and will last till 7th October, 2019. Further, the applicant has been conducting the Bhandara/Langar at the disputed place since the year 2000, but, since the disputed place has wooden pillars and slabs meant for the purposes of construction, which will hinder the holding of Navratras Bhandara/Langar held by the Langar Samiti, the present application may be allowed and order to allow the applicant to remove these wooden pillars and slabs, clean up the area and place carpets/rugs may be passed, so that the Bhandara/Langar can be conducted at the disputed place. Furthermore, the applicant may be allowed to place kitchen utensils for cooking etc. to be placed in the vicinity of the disputed place for the Bhandara/Langar to be conducted efficiently. The application is duly supported with an affidavit. Reply to the application has been filed (though differently numbered) and it is averred that the premises was not constructed in the year 1987 nor any Langar has been held in the same place and the applicant cannot be permitted to change the status quo position, as they have flouted the orders of this Hon'ble Court by raising the illegal and unauthorized construction. Further, the applicant wants to use the premises which they have no right, as such, the applicant cannot be permitted to run the Langar in the premises or alter and remove the existing situation and cannot permitted to conduct and hold Bhandara in the premises or use the premises for cooking or storing utensils etc. Lastly, a prayer for dismissal of the application has been made. In rejoinder to the reply, the contents of the application are reiterated and contents of the reply are denied. 2. This Court on 02.11.2017 has passed the following order:- "CMPMO No. 480/17 & CMP No. 9268/17 Notice to the respondent for 1st December, 2017, on taking steps within three days. In rejoinder to the reply, the contents of the application are reiterated and contents of the reply are denied. 2. This Court on 02.11.2017 has passed the following order:- "CMPMO No. 480/17 & CMP No. 9268/17 Notice to the respondent for 1st December, 2017, on taking steps within three days. In the given facts and circumstances and the submissions made by learned Counsel, the respondent-defendant, in the meanwhile, is restrained from raising any construction on the spot. Be issued on compliance of provisions contained under Order 39 Rule 3 of the Code of Civil Procedure ... ... ..." 3. As per the submission made in the application, the applicant/respondent wants to hold Bhandara/Langar at the disputed place during the Navratras. This Court finds that the place was earlier not owned by the present applicant and they had got this premises from the year 2016, after it was gifted to the present applicant i.e. Jai Jawala Langar Samiti Bathinda. As per the applicant, they are holding Bhandara/Langar during the Navratras for the pilgrims coming to Jawalaji Temple from the year 2000 every year. The non-applicants/petitioners, who are challenging the orders passed by learned Courts below before this Court, has a case that the present applicant is raising the construction not only on the old existing house which was donated to them, but, in addition to that, by blocking the path of the non-applicants/petitioners. 4. The record of the learned Court below was called for on the last date of hearing, i.e. 13.09.2019 and the matter was listed today, however, the record has not been received and as the Navratras are commencing from 29th September, 2019, this application was taken up for consideration as prayed for by learned Senior Counsel appearing on behalf of the applicant. 5. When the matter was being heard Mr. Ankush Dass Sood, learned Senior Counsel appearing on behalf of the applicant has categorically argued that now the applicant does not want to raise any construction, but the applicant only wants to clean the place and hold Langar and as far as the main petition is concerned that requires disposal on merits and at this moment, the present applicant may be allowed to hold Langar. 6. On the other hand, Mr. 6. On the other hand, Mr. K.D. Sood, learned Senior Counsel appearing on behalf of the non-applicants/petitioners has argued that the applicant has raised construction on portion more than the existing house, which was gifted to them and in these circumstances, they cannot move any application before they absolve them from the contempt they have committed. In support of his contentions learned Senior Counsel appearing on behalf of the non-applicants has placed reliance upon the decision rendered by a full Bench of this Court in Om Prakash and another vs. Board of School Education, 1974 ILR(HP) and argued that in case the applicant is allowed to hold Langar they will use the place, which is their intention from the very beginning, as such, the application deserves dismissal at this moment. Learned Senior counsel appearing on behalf of the non-applicants/petitioners has also invited the intention of this Court to the photographs of the spot from time to time and argued with regard to encroachment of the vacant portion by the present applicant, while raising construction. 7. In rebuttal, Mr. Ankush Dass Sood, learned Senior Counsel appearing on behalf of the applicant has argued that question with regard to construction whether made within the premises, which was gifted or beyond that, is still sub judice, so no question of contempt is made out. He has further argued that as the facts of the case are totally different, permission to hold the Bhandara/Langar may be accorded in favour of the applicant. 8. I have gone through the record available with this Court, including the photographs annexed with the case file. 9. At the very outset, the dispute with respect to the construction, whether it is carried out on the gifted house or in addition to the land which is vacant and which is used as a path, is a matter of consideration in the main petition and required to be adjudicated. The fact that the applicant is carrying Bhandara on the disputed place from the year 2000 is taken into consideration by this Court, coupled with the fact that for conducting the Bhandara/Langar no permanent structure is required to be raised neither nature of the land is required to be changed. 10. The fact that the applicant is carrying Bhandara on the disputed place from the year 2000 is taken into consideration by this Court, coupled with the fact that for conducting the Bhandara/Langar no permanent structure is required to be raised neither nature of the land is required to be changed. 10. This Court has also taken into consideration the urgency of considering the application, as the record of learned Court below has not come and the Navratras are starting from 29th of this month and the applicant has to arrange utensils and other necessary material, if they are permitted to hold the Bhandara, so the necessity of disposing of the application today, has arisen. 11. This Court after going through the photographs and the orders passed by the learned Courts below, finds that the learned Courts below have allowed the applicant to raise construction only on the old house, but, now the dispute has arisen as the applicant has raised construction on the open space also, which was being used by the non-applicants/petitioners for access to their house and was wide enough to pass the vehicle. The non-applicants/petitioners are also shareholders in the disputed premises, however, the house which was in exclusive possession of the donee was donated to the present applicant. This Court in the interest of justice finds that for holding Bhandara no permanent structure is required to be raised and the applicant can be put to terms and after taking into consideration the interest of the public, this Court deems it appropriate to allow the applicant to hold Bhandara during the Navratras on the disputed place and to make necessary arrangements which should be only temporary and for the purpose of holding Bhandara only. However, after completion of Bhandara everything put for the said purpose should be removed and the premises shall be kept neat and clean and no additional construction shall be raised. As far as the judgment cited by learned Senior Counsel appearing on behalf of the non-applicants/petitioners, the same is not applicable to the facts of the present case, for the reason that yet it is not clear that the applicant/respondent has committed disobedience of the orders passed by the learned Courts below, as still it is a matter of evidence. 12. 12. Accordingly, the present application is allowed and the applicant is permitted to hold Bhandara/Langar after cleaning the place, removing the construction material lying on the place and by putting temporary structures, which after completion of Bhandara shall be removed. The application stands disposed of. CMPMO No. 480 of 2017 Let record of the learned Court below be called for as ordered earlier and list for consideration on 17th October, 2019.