Prem Jay Mishra v. State of Jammu and Kashmir

Judgment

3. State of Jammu and Kashmir through CommissionerSecretary, Revenue Department, Srinagar/Jammu. Financial Commissioner of Revenue, J&K, Srinagar/Jammu Divisional Commissioner, Kashmir, J&K Deputy Commissioner, Srinagar. Deputy Commissioner, Budgam, District Budgam Additional Deputy Commissioner, Srinagar. Assistant Commissioner, Revenue, Srinagar. Tehsildar South, Srinagar. Tehsildar Khanyar, Srinagar.

4. 5. 6. 7. 8. 9. 10. Senior Superintendent of Police, Srinagar. 11. S.H.O., P/S Khanyar, Srinagar. 12. Mahant Subhas Shah, Sole Trustee of Shree Baba Dharam Dass Ram Jeevan Dass Trust, Sathu Barbar Shah, Srinagar. …Respondent(s) Through:-Mr. Mohsin Qadri, Sr. AAG with

Ms. Maha Majeed, Advocate for R-1 to 11 Mr. M.Y.Bhat, Sr. Advocate with Mr. Hamza Prince, Advocate for R-12 Mr. Rakesh Khajuria, Advocate Mr. T.M.Shamsi, Advocate with Ms. Yasmeen Jan, Advocate in CM No.5314/2023 CORAM:HON’BLE MR. JUSTICE SANJEEV KUMAR,JUDGE HON’BLE MR JUSTICE M.A.CHOWDHARY, JUDGE JUDGMENT Sanjeev J

1. The petitioner claims to be the Mahant of Shree Bajrang Dev Dharam Dass Ji Mandir, Sathu Barbar Shah (temple property) and has filed this petition throw challenge communication of the District Magistrate, Srinagar bearing No.DMS/RD-5245-11/Mig/1169-73 dated 22.12.2017, whereby the District Magistrate has, inter alia, withdrawn the order allowing Dr. Jai Ram Dass to perform puja in the temple in question and entrusted the daily affairs of the temple to Baba Dharam Dass Ram Jevan Dass Trust. The petitioner claims that the pujari of the temple Mahant Jai Ram Dass has appointed him as Mohatamim of the temple property by virtue of a declaration executed on 01.12.2015. The petitioner, therefore, stakes claim over the right to perform puja and other religious rituals in the temple.

2. Mr. Qureshi, learned senior counsel appearing for the petitioner, however, conceded that the petitioner is not entitled to nor is he interested to manage the temple property. The petitioner has, 2OWP No.25/2018 thus, restricted his petition only to his right to perform puja in the temple.

3. The writ petition is opposed by the official respondents. In the reply affidavit filed on behalf of the respondent Nos. 1 to 4 and 6 to 9, it is submitted that appointment of Mahant in the Hindu temples in Jammu & Kashmir is governed by the procedure enumerated in Ailan No.13 dated 3 Asooj 1964 Bikrami notified during Maharaja times. As per the report of the Tehsildar, Srinagar submitted by him vide his letter No.TSS/OQ/2283/22 dated 30.09.2022, the land falling in khasra No.48 measuring 19 marlas under survey No.2191 is recorded in the name of temple Ba-Ahitmam Shri Kankar Dass Chella Pandit Shatrugan Dass Pujaari. The land exclusively belongs to the temple and has been recorded as such. It is submitted that on spot the Tehsildar has found three buildings erected on the premises which are occupied by the security forces and some by the purported office bearers of the Temple. The petitioner, too, was found putting up in one of the rooms. It is, thus, stand of the respondents that as per the revenue record, the petitioner or for that matter Baba Jai Ram Dass are not recorded Mohatmim/Manager of the temple and its property.

4. Respondent No.12 claiming to be the sole trustee of the property has also jumped in the fray and has staked his claim on the 3OWP No.25/2018 ground that he is trustee of Shree Baba Dharam Dass Ram Jiwan Dass Trust and, therefore, entitled to manage its affairs.

5. Heard learned counsel for the parties and perused the material on record.

6. Indisputably, the temple property in question vests in the Deity and, therefore, none of the parties to this petition or anybody else can stake claim over it. There is nothing on record on the basis of which, this Court can come to a conclusion as to how this property came to be dedicated to the temple. In the absence of any specific record, it has to be presumed that the Maharaja of the time built temples and dedicated landed properties to it so that the income earned out of such properties is used for the management and betterment of the temples and charitable purposes.Ailan No.13 dated 3 Asooj Bikrami throw some light on how the Mohatmim/Managers of such properties were appointed by the Maharajas.

7. Ordinarily, the temple properties are required to be managed as per the stipulation, if any, contained in the trust deed or dedication made for creating such temple or endowment. The office of Mohtmim/Manager is not a hereditary office and, therefore, the successor of a Mohatmim/Manager of a temple and its properties cannot, as a matter of right, succeed to be the next manager of the properties of the temple. 4OWP No.25/2018

8. In the instant case, the last recorded Mohatmim of the temple property is Kankar Dass Chella Pandit Shatrugan Dass Pujari. Thereafter neither any succession is recorded in the revenue record nor is there any person legitimately recorded to succeed Kankar Dass. There has been dispute between various sects of Sadhu Samaj, each claiming to succeed to Baba Kankar Dass with right to manage the properties of the temple.

9. It is in the absence of a proper written document governing management of the temple property, the vested interests have staked their claims over the temple properties. It has been brought to the notice of this Court that many such properties of temples, which came in the hands of different vested interests, were either sold/leased out or encumbered to the serious prejudice of the temples and their management. The loot of temples properties became rampant after 1990 when the Kashmir valley came under the onslaught of militancy. The minority community which was frequenting these temples and had interest in their management was made to flee from the valley to save their lives. Consequently, these temples came to be abandoned. Taking benefit of this chaotic situation, so called Mahants and Babas in connivance with locals encroached upon the properties of the temples. The Government of the day, which was battling with sudden splurge in militancy, remained oblivious to the situation of the temples and its properties. 5OWP No.25/2018

10. Since most of the temples and their properties were situated in urban areas, as such, due to their high value, the vested interests started litigating with each other, some staking their claims on the basis of recorded entries in the revenue record and others on the basis of trust deeds executed by them inter se without any authority of law.

11. The instant property, too, has become victim of the situation and to some extent apathy of the Government. We have carefully gone through the entire record placed before us and are prima facieconvinced that none of the parties have in their possession any legal document to substantiate their claim either to manage the temple and its properties or to offer puja and prayers in the temple. 12 In the aforesaid backdrop and with a view to ensure that no further damage is caused to the temple properties, we dispose of this petition by providing as under:- i) That the management of the temple and its properties in their entirety shall be taken over by the Deputy Commissioner, Srinagar, who shall manage the temple and its properties including making of arrangements for performance of daily puja and other religious rituals through a committee of officers of revenue and other departments, to be constituted by him. 6OWP No.25/2018 ii) The local police shall provide all assistance to the district administration and the committee so appointed to carry out its functions. iii) The committee shall open up an account in the name of the Deity/temple and deposit all the usufructs and the profits arising out of the properties of the temple. The committee shall, however, be entitled to utilize the amount so realized for better management and welfare of the temple. iv) The Deputy Commissioner/District Magistrate shall initiate appropriate steps to ensure that all encroachments over the temple properties are removed by following due process of law. v) That the party/parties claiming right to perform puja and receive offerings or to claim management of the properties shall be free to agitate their rights before the civil court. No such suit shall be entertained or continued by any civil Court unless the Deputy Commissioner/District Magistrate is arrayed as party defendant. vi) That in all pending civil suits regarding temple or temple properties in question, the civil court shall array the Deputy Commissioner/District Magistrate as party respondent so as to avoid collusion between the parties. vii) This position shall continue till the rights of the parties are conclusively determined by a civil court or 7OWP No.25/2018 Government of Union Territory of J&K comes up with an appropriate legislation for all the charitable and religious institutions and endowments, as suggested by this Court in its judgment dated 25th February, 2022 passed in PIL No.24/2018 titled Ajay Kumar Sharma v. State of J&K and others, whichever is earlier. (M.A.CHOWDHARY) (SANJEEV KUMAR) JUDGE JUDGE Srinagar 13.08.2024 Vinod Whether the order is speaking: Yes Whether the order is reportable:Yes 8OWP No.25/2018