Indira Sharma vs State and Others

Ajay Rastogi, J.—Instant appeal is directed against order of the ld. Single Judge dt. 16.5.2014.

Brief facts of the case culled out from record are that in District Ajmer, there are Hindu temples which are governed and managed by the Devsthan Department, Govt. of Raj. as well as temples which are managed by Pujaries. The State Government issued gazette notification dt. 25.6.1981 by which it was notified that if the property or part thereof of the temple is transferred by any person falling under the control of Devsthan Department, that transfer will be void. The Temples which are not falling under the management of Devsthan Department directly, they will be managed by a Committee constituted at Tehsil level.

One of the temple of Shri Mataji Maharaj is situated in village Sawar, Tehsil Kekri, District Ajmer. It is not notified, therefore, it shall be managed by a Committee constituted at Tehsil level, under the order dt. 18.6.1992 which came to be further modified by second committee constituted vide order dt. 27.5.2002 for transacting its business obviously with the object for development and management of temple and its property and the committee was also empowered to transact business to allot agriculture land of the temple from time to time for cultivation and for any other appropriate use and whatever money is received that will be used in Sewa Puja and maintenance of the temple and its property.

That earlier in the year 1996, no objection certificate dt. 6.6.1996 was issued by the Sub Divisional Officer, Kekri in the case of Ashok Gupta and Babita Gupta but that was kept in abeyance by the Distt. Collector, Ajmer vide order dt. 10.6.1996 and that dispute came before this Court initially in CWP-3173/1996 at the instance of Ashok Gupta and Babita Gupta and the ld. Single Judge of this Court vide order dt. 1.10.1997 allowed the writ petition and the order passed by the District Collector, Ajmer dt. 10.6.1996 for keeping No Objection Certificate dt. 6.6.1996 in respect of three plots of agriculture land in the name of deity for the purpose of mining operations allotted by the committee in abeyance was quashed and set aside and the Distt. Collector was further restrained not to interfere in the matter between the writ petitioners and the committee.

The order of the ld. Single Judge dt. 1.10.1997 came to be challenged in DBSAW-679/98 at the instance of State of Rajasthan that also came to be dismissed vide order dt. 10.7.2003. It appears that during the course of arguments it was brought to the notice of the Division Bench that the temple is in bad condition and it needs urgent repair and for development and maintenance and some orders are required to be passed and accordingly the Division Bench constituted committee of two Advocates of this Court, Shri Sanjay Tyagi and Shri Dharmendra Agarwal to submit the fact finding report of the temple and the report of the committee revealed that boundary walls of the temple needs to be constructed and apart from it other repairs is also needed and the Division Bench was of the view that whatever lease rent is received supposed to go to the temple account and fund are not being properly managed and keeping the paramount consideration for the management, control, administration and maintenance etc. of the temple Mataji Maharaj, the Division Bench constituted a committee of four persons with a rider to what extent the money can be spent and if that exceeds a particular limit provided for its renovation etc., permission is to be obtained form the Court and yearly returns for the expenses incurred should also be furnished.

It is brought to our notice that more than 20 lacs are lying in the account of the Deity but not a single penny has been drawn from the bank for repair/renovation till date in the past 13 years and not a single meeting of the committee has taken place and not a single repair work has been undertaken and no accounts have been submitted despite direction of the Division Bench which is subject to verification from the records but role assigned to the committee by the Division Bench under the garb of its order, as informed to this Court has not been properly taken care of.

By dismissal of SAW-679/98, No Objection Certificate issued by the committee constituted under the orders of the Devsthan Department dt. 18.6.1992 were restored back and mining lease granted (supra) on 13.11.1997 to each of them measuring 146.10 hectares are operating without interruption for the last 16 years.

The present appellant, (respondent-5 before the ld. Single Judge) in CWP-9626/2011 made an application for issuance of mining lease before the respondent-2 Mining Engineer, Department of Mines and Geology, Ajmer. The respondent-2 vide its letter dt. 20.11.2009 wrote to the Commissioner, Devsthan Department to submit NOC. In response thereto, the Commissioner, Devsthan Department, sent reply vide letter dt. 7.12.2009 that the State Govt. had constituted a second committee on 27.5.2002 which is authorized to issue NOC. In response thereto, respondent-2, wrote to the Naib Tehsidar, Kekri to issue NOC vide its letter dt. 9.12.2009.

In the meanwhile, third committee came to be constituted vide order dt. 7.12.2009. The respondent-2 again wrote a letter to the SDO, Kekri on 15.12.2009 to issue NOC. The third committee constituted vide order dt. 7.12.2009, after considering the case in detail finally resolved to grant NOC vide order dt. 17.2.2010. In furtherance thereof, respondent-2 wrote to the Director, Mines and Geology for approval of the mining lease vide order dt. 25.2.2010 and the mining lease was sanctioned by respondent-2 in favour of the appellant vide order dt. 4.10.2010 and the lease deed was executed and registered on 5.10.2010 after due formalities and as per requirement of law. At this stage no objection certificate granted in favour of appellant by the committee constituted vide order dt. 7.12.2009 came to be challenged at the instance of two members of the committee who are practicing advocates constituted under the Division Bench order of this Court without any resolution filed writ petition No. 9626/2011 questioning NOC and mining lease granted in favour of the appellant vide orders dt. 17.2.2010 and 4.10.2010 respectively.

Reply was filed by the respondent state and the present appellant and the State of Rajasthan after taking note of complete narration of facts, in para (viii) of their reply averred that no objection certificate was granted by the Sub Divisional Officer, Kekri on 17.2.2010 and in furtherance thereto grant of mining lease in favour of the appellant vide order dt. 4.10.2010 are valid and in accordance with law.

In the reply filed by the present appellant, it was pointed out that the committee constituted by the state govt. vide order dt. 7.12.2009 apart from business which was to be transacted by the committee, the Devsthan Department was appointed as Administrative Department of the committee and what kind of business is to be transacted by the committee which might not initially in detail mentioned in its order dt. 7.12.2009 but by the UO note dt. 29.1.2010 Ann.AA3 which has been supplied to the appellant under right to information, it was specifically made clear that apart from the business to be transacted by the committee constituted vide order dt. 7.12.2009 for allotment of land for agriculture purpose, it is also specified that under the Chairmanship of Sub Divisional Officer, NOC can also be issued for mining purposes. At the same time, further UO note of the Devsthan Department dt. 7.9.2010 was also placed on record filed by the appellant along with reply as Ann.R/8 before the ld. Single Judge.

After the matter being examined, the ld. Single Judge arrived to a conclusion that the third committee headed by the Sub Divisional Officer dt. 7.12.2009 was not holding competence to issue no objection certificate dt. 17.2.2010 for mining lease of the land belonging to the temple although such authority was earlier existed at the time of constituting of first and second committee vide orders dt. 18.6.1992 and 27.5.2002 and the ld. Single Judge finally held that grant of NOC by the third committee is without competence and as a consequence whereof mining lease sanctioned by the respondent-2 dt. 4.10.2010 and all action in furtherance thereof could not sustain and declared to be illegal and the order of the ld. Single Judge is the subject matter of challenge in the instant intra court appeal.

Main thrust of submission of the counsel for appellant is that two earlier committees constituted by the state govt. vide orders dt. 18.6.1992 and dt. 27.5.2002 were specifically assigned to transact business apart from to manage the temple land by letting out for agriculture or other appropriate purposes but what should be other appropriate purpose, it was no where defined and by the judgment of this Court committee was constituted for the limited purposes for maintenance of the temple and keeping in view the paramount interest of the temple, Devsthan Department was appointed as Administrative Department of the committee and when question came up for consideration regarding other business to be transacted by the third committee constituted vide order dt. 7.12.2009, it was made clear by the Devsthan Department vide its UO note dt. 29.1.2010 and in furtherance thereof, vide UO note dt. 7.9.2010, it was clarified that the committee apart from managing the temple land for letting out for agriculture purpose can also function for other appropriate purpose as well and even in the UO note dt. 29.1.2010 clarification was made by the Devsthan Department and it was specifically mentioned that the committee headed by the Sub Divisional Officer can certainly consider to grant NOC for use of mining purpose and all decisions have been left to be undertaken by the committee headed by the SDO vide its letter dt. 7.9.2010 and in the light thereof observation of ld. Single Judge that the committee constituted vide order dt. 7.12.2009 was not holding its competence to grant NOC for mining lease is not legally sustainable and that deserves to be quashed.

Counsel for appellant further submits that even when such of the business could be transacted by the committee earlier constituted vide order dt. 18.6.1992 and 27.5.2002 still when the NOC was granted by the committee headed by the SDO earlier in the case of Ashok Gupta and Babita Gupta vide its order dt. 6.6.1996, the District Collector, Ajmer vide its order dt. 10.6.1996 stayed the operation of NOC dt. 6.6.1996 and that matter traveled upto Division Bench of this Court and it was finally held that action of the District Collector was uncalled for and even the District Collector was directed not to interfere in the matter of the writ petitioners and submits that three respective lease in the name of Ashok Gupta and Babita Gupta are operating without interruption for the last 16 years and under these circumstances two out of four members of the committee constituted by the Division Bench of this Court in DBSAW-679/98 vide its order dt. 10.7.2003 questioning the NOC without there being any resolution of the committee and their locus standi certainly requires consideration by this Court.

Counsel for appellant further submits that whatever money is paid by the mining lease holder towards grant of NOC and yearly lease rent and period for which the appellant was operating mining lease, sufficient amount has been deposited in the account of deity but the present committee which is so vigilant and has approached this Court by filing instant writ petition, not a single penny has been withdrawn from the bank for repair/renovation for the last 13 years and no meeting of the committee has taken place, not a single repair work as directed by the Division Bench has been undertaken and accounts have not been submitted and apart from it once the Devsthan Department who has been appointed as administrative department of the committee made it clear vide UO note dt. 29.1.2010 followed by UO note dt. 7.9.2010 that the committee constituted on 7.12.2009 holds competence. The UO note dt. 29.1.2010 was not placed before the ld. Single Judge and was withheld which has been obtained by the appellant under right to information indicates that the committee holds competence and in view thereof the order of the ld. Single Judge certainly requires interference of this Court.

Mr. R.P. Garg, Advocate appearing for writ petitioners and also Shri Anurag Sharma, Additional Advocate General opposed the submissions made by the counsel for appellant but the categorical stand of the State of Rajasthan in the reply filed before the Ld. Single Judge was that NOC has been granted by the committee headed by Sub Divisional Officer who holds its competence under order dt. 7.12.2009 and mining lease has rightly been granted by the Department of Mines and Geology vide order dt. 4.10.2010 and in the appeal preferred at the instance of respondent-5 whose rights as alleged are adversely affected, the state is opposing grant of NOC which before the ld. Single Judge has supported in upholding NOC and mining lease issued by the authorities and the state govt. took summer salt and is opposing its action and at the appellate stage their justification is that after the judgment was passed by the ld. Single Judge dt. 16.5.2014, the state govt. has given a re-look to the matter in the light of findings recorded and revealed that the committee constituted vide order dt. 7.12.2009 headed by the Sub Divisional Officer was not authorized by the state govt. to issue NOC and mining lease granted by the SDO, Kekri was not valid and sustainable and has been rightly canceled vide order dt. 19.5.2014 by order of ld. Single Judge and possession of the lease area has been taken over by the department and state has not chosen to file appeal, however, no comments have been made as to what would be the effect of UO note dt. 29.1.2010 followed with 7.9.2010 placed on record and obtained by the appellant under right to information which support competence of the committee headed by the Sub Divisional Officer, Kekri to transact business for issuance of NOC for grant of mining lease but still 13 supports the order of the ld. Single Judge and submits that after finding has been recorded by the ld. Single Judge holding that committee constituted vide order dt. 7.12.2009 was not authorized for issuance of NOC to transact business for non agriculture purposes no error has been committed by the ld. Single Judge.

Mr. Garg, original writ petitioner submits that the committee earlier constituted on 18.6.1992 and 27.5.2002 certainly holds authority to consider for issue of NOC to transact business other than agriculture purposes but that stands deleted while third committee was constituted vide order dt. 7.12.2000 and Devsthan Department might be appointed as administrative department of the committee, NOC for mining purposes could not have been granted by the committee constituted vide its order dt. 17.2.2010 and mining lease sanctioned in furtherance thereof vide order dt. 4.10.2010 does not hold good and this what the ld. Single Judge has observed in its order impugned and does not call for interference.

We have heard counsel for parties and perused the material on record with their assistance.

It is not disputed between the parties that the first and second committee constituted vide order dt. 18.6.1992 and 27.5.2002 holds authority to transact business of managing temple land by letting it out for agriculture and for other appropriate purposes and which includes grant of NOC for mining purposes and this fact can be further supported by the judicial pronouncement of this Court when question was raised for consideration at the stage when no objection certificate issued by the committee headed by the SDO, Kekri dt. 6.6.1996 was kept in abeyance by the District Collector, Ajmer vide its order 10.6.1996 and its authority was questioned by the concerned lease holder Ashok Gupta and Babita Gupta by filing CWP-3173/1996 and that came to be decided vide order dt. 1.10.1997 and the ld. Single Judge initially observed as under-

"16. In view of the aforesaid undisputed facts find no justification in the direction of Collector in letter dt. 10.6.96 (Ann.10) whereby the operation of No Objection Certificate dt. 6.6.1996, issued by the Committee, has been stayed. The Collector has also sent a copy of the letter to Mining Engineer not to issue Patta in favour of petitioners.

In the result, the order/direction dt. 10.6.1996 (Ann.10) to Sub Divisional Officer, Kekri and Mining Engineer, Ajmer is quashed. The Collector Ajmer is also directed not to interfere in the matter between Committee and petitioners in respect of plot of land allotted to petitioners by the Committee".

And the appeal preferred by the State of Rajasthan against the judgment of the ld. Single Judge came to be dismissed and it was brought to the notice of the Division Bench that no one is taking care of the temple and it needs urgent repair and construction work and taking note thereof two members (Advocates) were appointed by the Division Bench to furnish fact finding report and based on report for managing, control, administration and maintenance of temple Mataji Maharaj four members committee was constituted and directed to follow the directions and how the funds to be spent for repair, maintenance, alteration etc., and put rider that if the expenditure exceeds Rs. 5,000/-, they have to take prior permission of the Court and yearly returns and expenses incurred shall also be submitted.

In the instant case, the writ petition came to be preferred by two advocates members of the Committee constituted by the Division Bench assailing no objection certificate granted to the appellant by the committee headed by the S.D.O. constituted vide order dt. 7.12.2009 and the fact to be noticed that two advocate members of the committee on their own without there being any resolution of the committee constituted under the order of Division Bench questioned NOC granted to the appellant vide order dt. 17.2.2010 followed with mining sanction lease vide order dt. 4.10.2100.

Three different committees vide orders dt. 18.6.1992, 27.5.2002 and 7.12.2009 came to be constituted and as regard nature of work to be transacted by the committee, it will be appropriate to quote as under-

It is pertinent to note that the first and second committee constituted vide order dt. 18.6.1992 and 27.5.2002, were limited to transact its business but by third committee constituted vide order dt. 7.12.2009 its scope was bit enlarged and Devsthan Department was appointed as Administrative Department of the committee and when question arose regarding nature of business to be transacted by the committee, Devsthan Department being the Administrative Department vide UO note dt. 29.1.2010 made a clarification after due consultation with the legal experts and keeping in view the paramount consideration of the temple and its property and the money which is being generated can be utilized for development and maintenance and could be in use of Sewa Puja of the temple and in furtherance thereof, the UO note dt. 7.9.2010 give complete jurisdiction to the committee headed by the Sub Divisional Officer dt. 7.12.2009.

It will be relevant to quote the UO note dt. 29.1.2010 Ann.AA3 and UO note dt. 7.9.2010 Ann.R/8 which reads ad infra-

It can be noticed from the record that UO note dt. 29.1.2010 which the appellant has obtained under right to information and placed on record as Ann.AA3 which must have been in possession of the State of Rajasthan but for good reasons was withheld and that makes it explicit clear in para 2 that the committee which has been constituted vide order dt. 7.12.2009 headed by the Sub Divisional Officer is competent to issue NOC for mining purposes and being Administrative Department of the Committee certainly such clarification could always be made and the committee could be authorized and authorization was in the interest of the temple, this Court find no error in such decision being taken by the Administrative Department of the committee and the counsel for the state has not raised any objection in respect of the administrative department making clarification in regard to the business to be transacted by the committee constituted vide its order dt. 7.12.2009 and in continuation of business which was earlier being transacted by the first and second committee constituted vide order dt. 18.6.1992 and dt. 27.5.2002, such authority was extended apart from management of temple land for letting out for agriculture and also for other appropriate purpose as well.

In the light of UO note dt. 29.1.2010 which has been placed on record, in our considered view, the grant of NOC by the committee headed by Sub Divisional Officer constituted vide order dt. 7.12.2009 was well within its jurisdiction and competence and finding of the ld. Single as regard authority of the committee constituted vide order dt. 7.12.2009 for grant of NOC in the facts and circumstances does not hold good and is not legally sustainable in law.

As regard submission made by counsel for appellant in questioning the very authority of the two members of the committee suo moto in filing writ petition before the ld. Single Judge in the absence of any resolution of the Committee, in our considered view, certainly requires consideration for the reason that Division Bench of this Court constituted four members committee consisting of Shri Sanjay Tyagi, Adv. Dharmendra Agarwal, Adv., Shri Shalendra Jain Adv. and Shri Ladu Ram Choudhary. It is true that if any person aggrieved can assail action of the state or of its authority or if his rights are adversely affected but in the instant case we find that two practicing Advocates of this court as members of the Committee filed the writ petition on their own without any resolution of the four members committee constituted by the Division Bench while questioning the NOC granted by the Sub Divisional Officer, Kekri dt. 17.2.2010 followed with mining lease granted on 4.10.2010 and in absence of there being any resolution of the committee constituted under the orders of the Court dt. 10.7.2003, no individual member was authorized to take decision of its own in filing writ petition and member in individual capacity cannot be said to be aggrieved assailing action of the state authorities and even from the writ petition filed at the instance of two members of the committee, we do not find any pleadings or an averment as to how the rights of the present committee constituted for the welfare and in the interest of Mataji Maharaj in any manner going to be adversely affected more so when three mining lease are operating which were granted way back on 13.11.1997 without any interruption for the last 16 years.

It can be further noticed that even when the litigation initiated at the instance of two Advocate members of the committee constituted under the Division Bench of this Court questioning the NOC granted in favour of the present appellant dt. 17.2.2010 and mining lease dt. 4.10.2010, the state govt. was of the view that the committee constituted vide order dt. 7.12.2009 holds competence and NOC and mining lease in furtherance thereof has rightly been granted in accordance with law but the state govt. changed its view as stated after the judgment of the ld. Single Judge gave a fresh look to the matter and is of the view that third committee constituted vide order dt. 7.12.2009 was not holding competence to issue NOC. At this stage, this Court would like to note that the state cannot claim immunity in the manner it likes and after the document being obtained by the present appellant under right to information dt. 29.1.2010 Ann.(AA/3) and 7.9.2010, the State has not come out with any defence to justify its later action.

As regard submission made by Mr. Garg, suffice to say that the committee was constituted of four members under orders of the Division Bench of this Court and at least there should be a resolution of the committee for initiating action if in any manner it has adversely affecting their rights while grant of NOC or mining lease in favour of appellant and individual member of the Committee cannot be said to be aggrieved in assailing the order dt. 17.2.2010 passed by the Committee constituted by the state govt. vide its order dt. 7.12.2009.

This Court after going through the material on record is of the considered view that the committee constituted under the order dt. 7.12.2009 of which Devsthan Department was appointed Administrative Department of the Committee and after clarification made by UO note dt. 29.1.2010, the decision of the Committee for issuance of NOC dt. 17.2.2010 was well within its competence and in our considered view, the order of ld. Single Judge dt. 16.5.2014 in the facts and circumstances of the case, is not sustainable in law and deserves to be quashed and set aside.

Consequently, the special appeal succeeds and is hereby allowed. The order of ld. Single Judge dt. 16.5.2014 impugned is hereby quashed and set aside. The respondents are directed to restore the NOC dt. 17.2.2010 and consequential mining lease dt. 4.10.2010 granted to the appellant. No cost.