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Judgment
The petitioner has filed the present petition challenging the order dated 29.04.2016 passed by respondent No. 2.
Brief facts of the case are that the petitioner is a society registered under the M.P. Co-operative Societies Act, 1960. The petitioner society has
framed its by laws under the provisions of Section 9K(1) of the Act. The present petition has been filed by the petitioner challenging the order dated
29.04.2016 wherein the Sub Divisional Officer has been directed by the Collector, District Seoni that the donation box which is kept in the temple of
Mother Goddess (Maa Kali) situated in the Village Barghat, Tehsil and District Seoni be removed as collection of money in the form of donation from
the general public is against the rules and thus, a direction was given to stopped the said activity immediately. The said order has been challenged by
the petitioner on the ground that the petitioner being a co-operative society, the Collector has no power to issue such an order for removal of donation
box from the temple premises. The petitioner has further alleged that the impugned order has been passed in violation of principles of natural justice
wherein, no opportunity of hearing was given go the petitioner. Being aggrieved by that order, the petitioner has filed the present petition.
Learned counsel for the petitioner argues that the amount obtained by the Samiti from the donation is being audited every year having cash book
ledger. He further submits that the impugned order is based on colourable exercise of powers and is fully politically motivated. No irregularities have
been committed by the petitioner-society. He further submits that in case any complaint against any kind of illegalities or irregularity is found against
the petitioner's-society, then enquiry should have been held under the provisions of Adhinium 1960 by respondent Nos. 4 & 5 but without following the
provisions of law order Annexure-P/1 has been passed. The amount which is received by the society has been incurred for the welfare of religious
work and other public spirit works.
The respondent/State has filed their reply and has stated that a complaint was received that the donation box kept in the temple premises has been
thrown by the Caretaker of the temple. Thus, the Collector has directed to conduct an enquiry into the matter and it was brought to his knowledge that
the report has already been submitted way back in the year 2011 by the Dy. Commissioner, Cooperative, Seoni, in which it was mentioned that the
petitioner-society is a registered co-operative society and has been registered on 17.10.2007 and donation box which has been kept in the temple
premises is against the rules and the donation which is collected from the general public is against the rules and it was recommended that the said
collection of donation and keeping of the donation box in the temple premises should be stopped immediately. The Collector by taking into
consideration the report dated 11.08.2011 passed the impugned order whereby the Sub Divisional Officer was directed to immediately remove the
donation box and stop the collection of money in the donation box by the petitioner society.
This Court vide order dated 19.03.2017 has directed the Collector to take action in accordance with law. In compliance of the direction issued by
this Court, the Collector, Seoni has instructed the Sub Divisional Officer, Barghat, District Seoni to take appropriate action.
On the instructions of the Collector, District Seoni, the Sub Divisional Officer, Barghat, District Seoni has removed the belongings kept by the
petitioner-society in the Maa Kali Temple which is an ancient monument. The Sub Divisional Officer has removed the donation box as well as the
other belongings of the society from the temple premises and the same has been handed over to the members of the petitioner's-society and
panchnama has been prepared. The donation box is not kept within the temple premises and is kept outside the temple premises for the general public
so that if the devotees want to offer any donation in honour of Mother Goddess (Maa Kali), then they can do so. The Deputy Commissioner, Co-
operative Society has conducted an enquiry and has submitted his report on 17.10.2017, wherein, it has been stated that the activities carried out by
the petitioner-society are not in accordance with bye-laws framed by the society. Thus, in light of the aforesaid, learned Government Advocate
submits that the petition deserves to be dismissed.
Archaeological Survey of India has filed an application of intervener which was allowed by this Court and Archaeological Department was
permitted to implead as respondent in the said writ petition. The Archaeological Department has submitted his reply and has stated that the said temple
is declared as an ancient monument way back on 25th December, 1920 by the then British Government and it is said to be a monument which is built
by Raja Yadurai. One social activist Kishori Lal Bhalavi representing the cause of Gond and Tribal time to time made agitation regarding handing over
the possession and protection of monuments which are said to be built by Gond Rajas like Madan Mahal Fort at Jabalpur and Ramnagar, Mandla and
other small monuments which are in possession of the State Archaeological Department. The petitioner-society illegally encroached upon the
prohibited and regulated area and minting the money by putting a donation box and put the sign boards to exploit the feelings of the persons having
religious faith. They are also charging the fees for Manyata of certain ambitions like birth of child, success in court cases and befooling the public.
There is no Pujari/Priest for performing the pooja appointed by Archaeological Survey of India or State Government. Simply the people visit the
monument, take darshan of deities strictly as per the provisions and rules framed under the 1958 Act as amended by Validation Act of 2010. Under
Section 20A of the Act, the prohibited area has been defined which is 100 meters from the outer limit of the monument and under Section 20-B
regulated area has been defined which is further 200 meters from the outer limit of prohibited area. Section 18 provides that public shall have right to
access the protected monument subject to any rule made under this Act. But there is a specific provision under Section 30A for penalty in case any
damage or destroy or injury is caused to the monument and under Section 30B the punishment for imprisonment for 2 years or fine which may be
extend to Rs. 1 Lac or both is provided. The petitioner's-society has framed the bye-laws which are totally against the enactment of Parliament. The
bye-laws cannot prevail over the Act of 1958 and the Rules made thereunder. The Rule 38 and 39 provide for removal of unauthorized building or
construction in the prohibited and regulated area and penalty and imprisonment for the same. In the said premises, the temple being old, the pilgrims
and devotees take the darshan of deities but they cannot perform any religious rituals like Jal Abhishek or any other Abhishek which is detrimental to
the historical importance of the deities. Under Rule 38, the District Magistrate has been under a statutory obligation to remove encroachment and
illegal occupation in the prohibited and regulated area. In light of the aforesaid, learned counsel for respondent No. 6 submits that the petition deserves
to be dismissed.
The petitioner has also filed rejoinder and denying the allegations made in the reply.
Heard learned counsel for the parties and perused the record. From perusal of the record, the petitioner is a society registered under the Co-
operative Societies Act. At Barghat, District Seoni a temple of Maa Goddest (Maa Kali) is situated. The said temple was declared as a monument by
the British Government in the year 1932. Under Section 18 of the Rules regarding protection of the monument has been framed. The Rule 3, 4 and 5
of Rules of 1959 states that the monument shall be open after the Sunrise and closed at the Sunset for access to the public in general and after that
period the no general public can have access to the monument except the officers of the ASI and their subordinates and staff. The Rule 7 of the Rules
prohibits the meeting in the monument and Rule 8 provides the prohibition of certain Acts in the monument.
The Rule 8 is reproduced as under:-
“8. Prohibition of certain acts within monuments.-No person shall within a protected monument,-
(a) do any act which causes or is likely to cause damage or injury to any part of the monument; or
(b) discharge any fire-arms; or
(c) cook or consume food except in areas, if any, permitted to be used for that purpose; or
(d) hawk or sell any goods or wares or canvass any custom for such goods or wares or display any advertisement in any form or show a visitor round
for monetary consideration except under the authority of, or under and in accordance with the conditions of a licence granted by, an archaeological
officer; or
(e) beg for alms; or
(f) violate any practice, usage or custom applicable to or observed in the monument; or
(g) bring, for any purpose other than the maintenance of the monument,-
(i) any animal or,
(ii) any vehicle except in areas reserved for the parking thereof.
Under Section 20A, comprising of 100 meters from all corners of the monuments is prohibited area and under Section 20B of the Act thereofÂ
from prohibited area, 200 meters in all corners are regulated area and no one can make any construction, encroachment in such prohibited and
regulated area. Under Section 19 of the Act, the subject monument is not a living monument where any religious activity or rituals are allowed. The
religious prayers/rituals are allowed only with the permission of the Director General or the Central Government. The relevant portion of Section 19 is
reproduced as under:-
“19. Restrictions on enjoyment of property rights in protected areas;-
(1) No person, including the owner or occupier of a protected area, shall construct any building within the protected area or carry on any mining
quarrying, excavating, blasting or any operation of a like nature in such area, or utilize such area or any part thereof in any other manner without the
permission of the Central Government.
Provided that nothing in this subsection shall be deemed to prohibit the use of any such area or part thereof for purposes of cultivation if such
cultivation does not involve the digging of not more than one foot of soil from the surface.
(2) The Central Government may, by order, direct that any building constructed by any person within a protected area in contravention of the
provisions of sub-section (1) shall be removed within a specified period and, if the person refuses or fails to comply with the order, the CollectorÂ
may cause the building to be removed and the person shall be liable to pay the cost of such removal.
Any sculpture or platform adjacent to the monument constructed at the time of construction of monument also includes as a monument and no
damage can be caused to any part of the monument for which Section 30 and 38 provides the penalty.
In the present case the respondent No. 6 has filed the photographs which shows that the petitioner society has erected the temporary construction
for which they have dug holes on the platform of the monument within the prohibited area and inserted iron poles as a result of which the platform is
cracked and badly damaged. For the said Act, an FIR has also been lodged. The monument is a glorious past of the country and an example of
architect and art of carving on stone. Once it is damaged it cannot be repaired and brought to original form on any cost and precious and valuable
monument and sculpture and deity in the monument is at stake.
The members of the petitioner's-society has put a donation box in the premises of the temple which is prohibited under the Act. Therefore, a
complaint was received that the donation box kept in the temple premises has been thrown by the Caretaker of the temple. The Collector, therefore,
directed to conduct an inquiry into the matter and it was brought to his knowledge that the report has already been submitted way back in the year
2011 by the Dy. Commissioner, Co-operative Society, Seoni in which it was mentioned that the petitioner's-society is a registered co-operative society
and donation box which has been kept in the temple premises is against the rules and the donation which is collected from the general public is against
the Rules and it was recommended that the said collection of donation and keeping of the donation box in the temple premises should be stopped
immediately. The Collector after taking into consideration the report of the Dy. Commissioner has passed the impugned order thereby directing the
petitioner society to remove the donation box. 15. Earlier, this Court has directed the Collector to take action in accordance with law. In pursuance of
the direction issued by this Court, the Collector, District Seoni has instructed the Sub Divisional Officer, Barghat, District Seoni to take appropriate
action. On the instructions of the Collector, District Seoni, the Sub Divisional Officer has removed the belongings kept by the petitioner-society in the
Maa Kali Temple which is an ancient monument. The Sub Divisional Officer has removed the donation box as well as other belongings of the society
from the temple premises and the same has been handed over to the members of the petitioner-society and the panchnama has been prepared and
now the donation box has been kept out side the premises of the temple.
The contention of learned counsel for the petitioner is that the petitioner being cooperative society, the Collector has no jurisdiction to pass the
impugned order cannot be accepted, as in the present case, the Collector has passed the impugned order on the basis of the report submitted by the
Deputy Commissioner of the Cooperative Society. So far as, no opportunity of hearing was given to the petitioner is concerned, the act committed by
the petitioner is not in accordance with law. The petitioner-society has failed to show any law under which they are entitled to keep the donation box
in the premises of the temple, therefore, the issuance of notice would be merely formality.
Thus, the temple being a ancient monument and as per the provisions of law any activity is prohibited in the premised of the said temple, therefore,
the Collector has rightly passed the impugned order. Thus, in light of the aforesaid, I do not find any reason to interfere into the said writ petition.
Accordingly, the writ petition is dismissed.