2015 Supreme(P&H) 211

IN THE HIGH COURT OF PUNJAB & HARYANA
[DIVISION BENCH]
Before
The Hon’ble Mr. Justice Surya Kant
The Hon’ble Mr. Justice Raj Mohan Singh
LPA No. 541 of 1994 (O&M)
State of Punjab & Ors.
v.
Mahant Jatinder Dass Chela
{Decided on 10/04/2015}

Headnote:Allotment of Land--To religious institutions by Princely States in pre-Constitutional period—All transaction of immovable properties of Dera-cum-Religious Institutions of Non-Sikh Sampardaya, entered into so for by Mahant-cum-Mohtmims are declared to be acts of fraud and collusion and are declared null and void and having no binding effect on concerned Deras.

       (A) Allotment of Land--To religious institutions by Princely States in pre-Constitutional period through Farman-i-Shahi--(i) Farman-i-Shahi is held to be Constitutionally valid and has force of law;

       (ii) Through Farman-i-Shahi property/land was never gifted/donated to any Mahant in his individual capacity--Land was given to Deras under management of Mahant;

       (iii) As per Farhman-i-Shahi Mahant shall not be competent to sell or mortgage the land of Deras and the Revenue Department has to be initiated so as to make such an entry in the record.

       (iv) Therefore, any transaction of immovable properties of Dera-cum-Religious Institutions of Non-Sikh Sampardaya which are subject matter of present cases, entered into so for by Mahant-cum-Mohtmims are prima facie declared to be acts of fraud and collusion and are declared null and void and having no binding effect on concerned Deras.

       (v) However, the effected person can approach the Special Civil Court constituted herein after and to establish that the transaction was free from any fatal legal infirmity and further that such transaction was beneficial for Deras-cum-Religious institutions.

       Further Directions issued as follows:-

       (i). All those sale deeds, exchange deeds, lease deeds or any other Instrument of transfer of immovable property executed by the Mahant-cum-Mohtmims of the deras in transgression of their powers and authority, are hereby declared null and void having no binding effect on the Dera-cum-Religious Institution(s) subject to, however, the conditions mentioned in para-186(vii) of this order read with direction No.(viii) below;

       (ii). The State of Punjab and the District Administration at Patiala or the other Districts where the subject Deras-cum-Religious Institutions are located, are directed to restore forthwith the mutation of all immovable properties in favour of the Religious Institutions, irrespective of any decree passed by the Civil Court or any Instrument of Alienation duly executed and registered in accordance with law but subject to the final determination of the validity of such transaction by the Special Civil Court-cum-Tribunal constituted hereinafter.

       (iii). The State of Punjab and the District Administration is further directed to restore possession of the immovable properties which are still owned by a deracum-religious institution but are not in its possession due to the lease, mortgage or any other similar kind of instrument executed by the Mahant-cum- Mohtmim, within a period of three months from the date of receipt of a copy of this order--If the Deputy Commissioner is satisfied, owing to the past conduct of the alleged Mahant-cum-Mohtmim, that the possession of the property is likely to again exchange hands to the detriment of the Religious Institution’s interest, the Deputy Commissioner shall appoint the Tehsildar of the area concerned as a Receiver of such property in accordance with law and then he shall manage such property till the final orders are passed by the Special Civil Court.

       (iv). Wherever there is an inter se dispute on the appointment of a Mahant-cum-Mohtmim of a dera, the immovable property and assets of such Dera-cum-Religious Institutions shall be taken over by the Deputy Commissioner concerned as a Receiver until the dispute regarding such appointment is resolved by the Special Civil Court-cum-Tribunal in accordance with the directions laid down in this order.

       (v). Any person, company, society or a juristic body who is affected by the declaration given in para 186(vii) and/or the directions numbered at (iv) to (vii) above, shall be at liberty to establish the validity of his/its right, title or interest in the property once owned by a dera-cum-religious institution, by lodging a claim to that effect before the Special Civil Court-cum-Tribunal constituted hereinafter. Such aggrieved person, company or society etc. shall submit his/its claim in the Court of the District Judge, having territorial jurisdiction within a period of three months which shall commence from the date the property in dispute is restored back to the Dera-cum-Religious Institution by the district administration or the prescribed authority.

       (vi). There shall be a Special Civil Court-cum-Tribunal presided over by a Member of Punjab Superior Judicial Service, to be nominated by the District & Sessions Judges, Patiala, Barnala and/or other places within whose territorial jurisdiction, the disputed property of a Dera-cum-Religious Institution is located--Depending upon the volume of claims that may be lodged, the learned District & Sessions Judge concerned shall assign one or two members of Punjab Subordinate Judicial Services for the simultaneous recording of evidence and completion of record and paper-books of each claim-case so as to enable the Presiding Judge of the Special Civil Court to decide the questions like those illustratively raised in para 174 of this order or other related, relevant and allied issues raised in a claim-case.

       (vii). The Special Civil Court-cum-Tribunal shall be constituted initially for a period of one year--The Special Civil Court-cum-Tribunal shall be competent to hold the Court proceedings at a place other than the Sessions headquarters, if need be, for expeditious disposal of the claim-cases preferably within a period of one year from the date of filing of such claims;

       (viii). The District & Sessions Judges concerned shall ensure that the Presiding Judge of the Special Civil Court or the Member of the Punjab Subordinate Judicial Services associated with him are not assigned any other judicial work until the claim cases arising out of this order are decided;

       (ix). The State of Punjab is directed to sanction the requisite temporary posts in the cadre of Punjab Superior Judicial Services as well as in the Punjab Subordinate Judicial Services equal to the strength of the officers to whom exclusive work of Special Civil Court-cum-Tribunal will be assigned, as directed above. The Presiding Judge or the associate Member(s) of the Special Civil Court-cum-Tribunal shall not be entitled to any Special Pay or Deputation Allowance but they shall continue to have full facilities and the complete infrastructure to which they are entitled to--They shall be further provided full strategic assistance by the Government of Punjab, as may be required by them for effective performance of the special duties assigned under this order;

       (x). The State of Punjab as well as the Deputy Commissioners of the concerned Revenue districts are further directed to - (a) appoint a team of senior Law Officers, to be headed by a District or Deputy District Attorney to assist the Special Civil Court; (b) to produce all the original and relevant records for the Court’s scrutiny in respect of the immovable property of every dera-cum-religious institution; (c) take physical control of the dera properties, if need be, and/or lease out such properties on yearly basis subject to the prior approval of the Special Civil Court; (d) constitute a team of Officers including an Accounts Officer to scrutinize the record of every dera in respect of utilization of the income or other assets of such deras; and (e) to provide any other assistance as may be asked for by the Special Civil Court.

       (xi). The Special Civil Court-cum-Tribunal is directed not to entertain any claim of a Gram Panchayat, Municipality or any local body or of the village proprietary body, in respect of their so-called entitlement to the dera properties as shamlat deh or in any other form--The title or ownership rights of the Dera-cum-Religious Institution to the extent of land or immovable properties given to it by erstwhile Rulers or which came otherwise, shall not be allowed to be questioned by anyone--The Special Civil Court, however, shall be required to determine and identify the land and immovable property of every Dera-cum- Religious Institution on the basis of original records to be produced by the District Administration.

       (xii). The Special Civil Court-cum-Tribunal shall act and adjudicate every claim by exercising the powers under Section 92 of the Code of Civil Procedure and shall follow the principles and broad parameters laid down in this order while deciding the individual claims.

       (B) Constitution of India, 1950, Art. 13(1) & Art.372--Pre-Constitutional Laws--Validity of--Held; Article 13 of the Constitution declares that all ‘laws’ in force in the territory of India immediately before the commencement of this Constitution which are inconsistent with the provisions of Part-III of the Constitution, shall be void to the extent of such inconsistency--The ‘law’ within the meaning of Article 13 includes any Ordinance, Order, Bye-law, Rule, Regulation, Notification, Custom or Usage having in the territory of India the force of law--It is mandatory that the pre-Constitutional law shall be void if it runs contrary to the Fundamental Rights guaranteed under Part-III of the Constitution though only to the extent of such in consistency--The complete Code therefore will not be rendered void and if the inconsistent part is also amended subsequently, so as to remove the repugnancy, then the entire law shall become free from all blemishes. (Para 109)

       (C) Constitution of India, 1950, Art.13 & Art.372--Pre-Constitutional Law--Farman-i-Shahi--It is Constitutionally valid and enforceable law--Held;

       (i) That Farman-i-Shahi dated 18.04.1921 AD was formulated by Ijlas-i-Khas, who was equivalent in status with the present day State Government. The Farman-i-Shahi was issued under the command of the Ruler, who too enjoyed the status and rank of Raj Pramukh or Governor of a State in the post- Constitution regime.

       (ii) Farman-i-Shahi was neither amended or repealed nor superseded by any subsequent dictate of equal or superior legal force till the Princely State of Patiala along with other Princely States integrated into the post-Independent State of PEPSU in May 1948.

       (iii) When the Constitution of India, as the fountain-head of all Statutes, came into force on 26.01.1950, the Farman-i-Shahi dated 18.04.1921 AD read with Sections 3(1) & 5(1) of PEPSU Ordinance No.XVI of 2005 BK unequivocally fell in the category of ‘laws’ as defined under Article 13(3)(a)&(b) of the Constitution and was in force within the territory of India.

       (iv) that since Farman-i-Shahi does not violate any of the Fundamental Rights guaranteed under Part-III of the Constitution, it is not a void law and continues in force until altered, repealed or amended by the competent Legislature.

       (D) Allocation of Business Rules, 1994--Jagirs and Muafis--Appointment of--Mahant and Mohtmim--Held;

       (i) Farman-i-Shahi is applicable and continues to regulate the appointment of a Mahant or Mohtmim of such a Religious Institution of Non-Sikh Sampardaya to whom land or any other immovable property was given by the erstwhile Rulers of Patiala State or any other Princely State which later merged into PEPSU.

       (ii) Farman-i-Shahi neither prescribes the mode of selection of a Mahant or Mohtmim nor is it attracted till the stage of approval for appointment of a chosen Mahant or Mohtmim reaches--The Mahant-cum-Mohtmim of a Non-Sikh Religious denomination shall be chosen only as per the customs, practices and conventions followed by such Sect, continuously and consistently.

       (iii) Dharmarth Board does not have any administrative control in the matter of regulating the affairs of Deras or other Religious Institutions of Non-Sikh Sampardaya.

       (iv) State of Punjab or its authorities are not empowered to select Mahant-cum-Mohtmim of a Religious Sectcum-Dera of Non-Sikh Sampardaya at their own but the approval of the Competent Authority in the State Government shall be required for such. (Para 186)