Dharam Chand Chaudhary, J.�The writ petition is filed with the following prayers:
i) That writ in the nature of certiorari may kindly be issued and the impugned order dated 17.6.2011 (Annexure P-12), impugned order dated 27.6.2011 (Annexure P-13) and impugned order dated 8.8.2011 (Annexure P-15) may kindly be quashed and set aside.
ii) That writ in the nature of mandamus may kindly be issued upholding the appointment order made by respondent No. 3 dated 24.2.2010 (Annexure P-2) and order dated 27.1.2011 (Annexure P-9), affirming the order of appointment in favour of the petitioner.
iii) That writ in the nature of mandamus may kindly be issued directing respondents No. 5 and 6 to immediately hand over the charge to the petitioner regarding the post of Bhandari of Deity Bijjat Ji Maharaj."
2. The complaint is that the 4th respondent has no legal right to be appointed as Bhandari of the Deity Bijjat Ji Maharaj. The temple of the Deity is situated at Sarain, Tehsil Chopal, District Shimla. Initially its affairs were being managed under the direction of erstwhile Ruler of Jubbal, however, later on the temple was taken over by the respondent-State on 5.7.2005, (Annexure A/R-3 to the reply filed on behalf of respondent No. 4), consequent upon the judgment passed by a Division Bench of this Court in CWP No. 1699 of 2002 on 6.1.2005. Annexure A/R-3 reveals that the 4th respondent was Bhandari of the temple and vide endorsement of the order ibid, he was asked to hand over the property of the temple including temporary and permanent fixtures, structures, devices, stocks, stores and cash including books of accounts etc. to Tehsildar Chopal. The property of the temple was accordingly handed over to the Temple Officer-cum-Tehsildar, Chopal as is apparent from the proceedings dated 6.7.2005 Annexure A/R-4 (Colly.), signed by the then SDO (Civil), Chopal and also 4th respondent in the capacity of Bhandari of the temple as well as other respectables. Documents Annexure A/R-4(Colly.), particularly the endorsement made on 30.11.2005 by SDO (Civil), Chopal-cum-Chairman Bijjat Maharaj Temple (page 169) amply demonstrates that the management of the temple accepted the 4th respondent as Bhandari on taking over the temple together with all assets and allowed him to continue as such. There is only one post of Bhandari as is apparent from the information (page 174) Annexure A/R-4 (Colly.).
3. The petitioner though claims that on the death of his brother Sant Ram in the year 1989, who was Bhandari of the temple, he being Up-Bhandari, was appointed as Bhandari by the Ruler of Jubbal. After taking over the temple, he, however, was one of the applicants for the post of Bhandari. The applications for the same seemed to be invited before taking over the temple as is apparent from Annexure A/R-4 (Colly.). On an application dated 4.1.2010 Annexure A/R-5 and dated 17.2.2010, Annexure A/R-6, the petitioner seems to be appointed as Bhandari, vide order dated 24th February, 2010, Annexure P-2 by the 3rd respondent. Though he submitted the joining report Annexure P-3 to the 5th respondent, however, not allowed to join as such. This has led in making the representation Annexure P-4 to the 3rd respondent requesting thereby issuance of directions to the 5th respondent and also to the Temple Officer-cum-Tehsildar, the 6th respondents to accept his joining report and also hand over complete charge.
4. Not only this, but the petitioner even preferred CWP No. 1092 of 2010, seeking a direction to the respondents to hand over the charge of the temple and allow him to function as Bhandari, consequent upon his appointment as such by the 3rd respondent, however, a Division Bench of this Court has disposed of the same with the following directions:-
"3. There will be direction to the Divisional Commissioner, Shimla to dispose of the appeal filed by the additional sixth respondent with notice to the petitioner and additional sixth respondent within a period of two weeks from the date of production of a copy of this Judgment. In order to enable the Divisional Commissioner to pass orders within the stipulated time, there will be direction to the petitioner and additional sixth respondent to be present before the Divisional Commission on 5th June, 2010 at 11.00 a.m."
5. Consequent upon the direction supra, the 2nd respondent decided the appeal preferred by the 4th respondent against the appointment of the petitioner as Bhandari vide order Annexure P-6. The appointment of the petitioner as Bhandari vide order Annexure P-2 was quashed.
6. Aggrieved by the order Annexure P-6, the petitioner approached this Court again by filing CWP No. 3438 of 2010 with the prayer to quash the order Annexure P-6 and as the 4th respondent had assailed the order Annexure P-6, before the Commissioner of Temples i.e. 3rd respondent, the writ petition was disposed of with a direction to the Commissioner to decide the matter on merits. The judgments rendered by a Division Bench of this Court in the above said writ petition is Annexure P-7. The 3rd respondent directed the additional District Magistrate Shimla to hold an inquiry into the matter and submit the report that the appointment of the petitioner as Bhandari is justifiable or not.
7. The inquiry was conducted and the report submitted in the matter is Annexure P-8. It is seen that the Additional District Magistrate has recommended the petitioner to be a fit person for being appointed as Bhandari of the temple. The 3rd respondent has taken into consideration the report Annexure P-8 and vide order dated 27.1.2011, Annexure P-9, upheld the appointment of the petitioner as Bhandari ordered vide order dated 24.2.2010 by the Commissioner Temples-cum-Deputy Commissioner, Shimla.
8. Consequently, vide order Annexure P-10, the 6th respondent was directed by the Additional District Magistrate, Shimla to allow the petitioner to join duties as Bhandari. The 4th respondent has challenged the order before learned Divisional Commissioner, Shimla in an appeal and also filed an application under Section 73 of the Indian Evidence Act, Annexure P-11, with the prayer to send the signatures of the person associated by Additional District Magistrate during the course of the inquiry proceedings and also for comparison from hand writing expert. The evidence of few of such persons that they never made any statement before Additional District Magistrate nor signed the same was also brought on record of the appeal. This has led in passing the interim order in the appeal Annexure P-12 whereby the operation of the order passed by learned Commissioner, the 3rd respondent Annexure P-9, was ordered to be stayed. In the appeal vide order Annexure P-13, a direction was also issued to the 3rd respondent by the 2nd respondent to conduct inquiry with respect to the facts highlighted by respondent No. 4 in Annexure P-11, the application under Section 73, and submit a report. The petitioner, however, assailed the order so passed before this Court in CWP No. 5197 of 2011, which, keeping in view the pendency of the appeal before the 2nd respondent, was disposed of with the following directions:-
"3. It is seen that an appeal filed by the fourth respondent is pending before the second respondent. There will be a direction to second respondent to dispose of the appeal within a period of one month from today. It is further made clear that while taking any decision in the matter, the second respondent shall take into consideration the observations/findings contained in Annexure P-13. The Divisional Commissioner shall also conduct the inquiry, if any, by that time."
9. Consequent upon the directions of this Court in its judgment Annexure P-14 supra, the 2nd respondent has considered the appeal preferred by the 4th respondent and disposed of the same with the following observations:-
"11. In view of the above, there is more than sufficient documentary proofs as also the contentions of the respondent No. 1, 2 & 4 to prove that Shri Arun Kumar Bhandari has been working as the Bhandari of the deity for the last more than 20 years and, therefore, respondent No. 1, 2 & 4 are estopped from rejecting his claim to continue as Bhandari by their own omissions and commissions. As admitted by the ADM, FIR has been registered against Shri Liaq Ram son of Shri Mehar Chand and, therefore, the report and findings of ADM itself stand vitiated and such findings do not carry weight so as to be relied upon in Toto to give strength to the impugned order. There is no proof in support of Shri Mehar Chand except his own conflicting claims and version of Shri Yoginder Chandra erstwhile Raja of Jubbal which are no answer to deny the claims of Shri Sant Ram and Arun Kumar as Bhandari of the deity in question. As such neither the impugned orders of Temple Commissioner are sustainable on facts nor legally and, therefore, the impugned order dated 24.2.2010 and 27.01.2011 cannot be allowed to sustain. Accordingly, appeal is accepted and I proceed to set aside the impugned orders with the directions to the Temple Commissioner that he should take action as per provisions of HP Hindu Public Religious Institution and Charitable Endowments Act, 1984. The appellant will continue as Bhandari of the Temple. However, it is open for Temple Commissioner to take action against Shri Arun Kumar Bhandari as per the provisions of the said Act if the facts warrant so and appoint a fit person as Bhandari after following the procedure prescribed under the Act ibid."
10. It is seen from the order ibid that the 2nd respondent after taking into consideration all pros and cons and also the material available on record had deemed it appropriate to allow respondent No. 4 to continue as Bhandari of the temple with further observations that it is open for the 3rd respondent to take action against the 4th respondent as per the provisions of the HP Hindu Public Religious Institution and Charitable Endowments Act, 1984, hereinafter referred to as ''the Act'', if the facts so warrant and appoint a fit person as Bhandari after following the procedure prescribed under the Act.
11. It is the order Annexure P-15 supra and interim order Annexure P-12 and also order Annexure P-13 whereby the 3rd respondent was directed to conduct an inquiry into the allegations of forgery, made by 4th respondent in the application under Section 73 of the Evidence Act filed along with the appeal against which the petitioner has approached this Court again in the present writ petition with the prayer that the same be quashed and set aside.
12. This case has chequered history because on being taken over the temple of the Deity Bijjat Ji Maharaj, village Sarain, Tehsil Chopal, District Shimla vide notification dated 5.7.2005, Annexure A/R-3 and appointment of the petitioner as Bhandari vide office order Annexure P-2 dated 24.2.2010, though later on quashed, while the petitioner has approached this Court thrice on different occasions by filing writ petitions for a direction to the respondents to allow him to take over the charge of the post of Bhandari and when the petitioner was allowed to join and take over the charge of the post of Bhandari, the 4th respondent assailed the order of his appointment as Bhandari before the statutory authorities i.e. Commissioner (Temples)-cum-Deputy Commissioner Shimla and also the Divisional Commissioner by way of filing statutory appeal(s). Ultimately learned Commissioner has quashed the appointment of the petitioner as Bhandari vide the impugned order Annexure P-15 in an appeal preferred by respondent No. 4 under Section 19 of the Act.
13. Section 21 of the Act, which reads as follows, deals with the appointment of Bhandari of the temple:-
21. Filling of vacancy in the office of hereditary trustee or pujari.
(1) When a permanent vacancy occurs in the office of the hereditary trustee or a pujari, as the case may be, of a Hindu public religious institution and a charitable endowment, the next in the line of succession shall be entitled to succeed to the office.
(2) When temporary vacancy occurs in such an office by reason of the suspension of hereditary trustee or pujari, as the case may be, under sub-section (i) of section 19 or by reason of his ceasing to hold office under the provisions of section 20, the next in the line of succession shall be appointed by the Commissioner to discharge the functions of the trustee, or as the case may be, of the pujari, until his disability ceases.
(3) When a permanent or temporary vacancy occurs in such an office and there is a dispute relating to the right of succession to the office, or when such vacancy cannot be filled up immediately or when there is a dispute relating to the person who is entitled to act as such, the Commissioner may appoint a fit person to discharge the functions of the trustee, or as the case may be, of the pujari, of the religious institution and endowment, until the disability of the hereditary trustee or pujari ceases or another hereditary trustee or pujari succeeds to the office or for such shorter term as the Commissioner may direct.
Explanation.-In making any appointment under this sub-section the Commissioner shall have due regard to the claims of the members of the family, if any, entitled to the succession.
14. As per the admitted case of the parties, there exists only one post of Bhandari in the temple of BijatJi Maharaj, Sarain. The Section ibid provides for the procedure for appointment of Bhandari. It is on the availability of vacancy, a person fit in all respect, can only be appointed as Bhandari. The petitioner, as per averments in para 19 of the reply filed to the writ petition, is 91 years of age. Disability certificate A/R-15 reveals that the date of birth of the petitioner is 1.1.1920 and he is suffering from Locomotor disability to the extent of 42%, permanent in nature. He in the year 2011, when the writ petition was filed, was therefore, 91 years of age. In the affidavit he, however, disclosed his age as 80 years. Otherwise also he being disabled to an extent of 42% cannot be believed to be a person fit in all respect in terms of the provisions quoted supra, which govern the appointment of Bhandari of the Temple. The photographs, Annexure A/R-4 annexed to reply filed to the writ petition reveal that the Deity while on tour in its area, the Bhandari is required to accompany the Deity all the way on foot and the journey arduous in nature in hilly terrain and snow bound area. A person aged 91 years having the disability to the extent of 42% permanent in nature cannot travel on foot with the Deity by any stretch of imagination.
15. Above all the post of Bhandari is not available for the reason that it is the 4th respondent, who is continuing as Bhandari right from the year 1989 on the death of Sant Ram, his predecessor in interest, who prior to his appointment was working as Bhandari. Admittedly, the post of Bhandari is hereditary. The 4th respondent as per the legal heir certificate Annexure A/R-18 being adopted son of late Shri Sant Ram is his only legal heir. As per the certificate Annexure A/R-18 (Colly.) mutation No. 19 on the death of Sant Ram has been attested and sanctioned on 28.1.2010 in favour of the 4th respondent. No doubt, the petitioner is the real brother of said Shri Sant Ram, however, he alone is not the brother of deceased Sant Ram as elder to the petitioner are S/Shri Ganga Ram and Shiv Ram, the other two brothers of said Shri Sant Ram. Therefore, the petitioner who is younger amongst all has no preferential right of being appointed as Bhandari in place of Sant Ram aforesaid as in that event such right could have been that of his elder brothers i.e. Ganga Ram and Shiv Ram. They both, however, have no grouse against the appointment of the 4th respondent as Bhandari perhaps knowing fully well that the appointment of Bhandari is hereditary and the 4th respondent being the only legal heir of deceased Sant Ram has every right of being appointed as such.
16. It is worth mentioning here that when vide notification 5.7.2005, Annexure A/R-3, the temple was taken over, the 4th respondent was already working as Bhandari of the temple since 1989 as is apparent from the perusal of Annexure A/R-4. The possession of the assets of the temple on taking over its management by the respondent-State has been taken from the 4th respondent as is apparent from the perusal of Annexure A/R-3. The Government even conducted audit also after taking over the temple; however, no irregularity was detected in the account. The applications dated 4.1.2010 and 17.2.2010 made by the petitioner for the appointment of Bhandari reveal that he has claimed therein that he was working as Bhandari for the last 40 years, however, removed from this post by the government at the time when the management of the temple was taken over. However, surprisingly enough in the subsequent application Annexure A/R-6, he claims himself to be working as Up-Bhandari of the temple for the last 35 years and requested that he may be appointed now as Bhandari on the death of his elder brother Sant Ram. The post of Bhandari, however, is not vacant as the overwhelming evidence produced by respondent No. 4 reveals that it is he who is working as Bhandari.
17. No doubt, the petitioner was appointed as Bhandari by the 3rd respondent in the capacity of Commissioner (Temples) vide office order dated 24.2.2010 Annexure P-2. The 5th respondent in the capacity of Chairman of the temple trust, however, not allowed him to join the duties as such nor handed over the charge and rightly so because respondent No. 4 was working as Bhandari right from the year 1989. In an appeal preferred by respondent No. 4 against the order Annexure P-2 dated 24.2.2010, the 2nd respondent while arriving at a conclusion that the said order, passed without holding proper inquiry and affording the 4th respondent, who was already working as Bhandari, an opportunity of being heard as required under Chapter 5 of the Act, was quashed and set aside vide order Annexure P-6, leaving it open to respondent No. 2 (petitioner herein) to approach the 3rd respondent again for his appointment as Bhandari with a direction to the said respondent to inquire into the matter and take decision after affording due opportunity of being heard to all concerned as per the requirement of the Act.
18. Consequently, the 3rd respondent got the matter inquired into from Additional District Magistrate, Shimla, who has submitted the report Annexure P-8 and recommended thereby the appointment of the petitioner as Bhandari of the temple. On the basis of inquiry report Annexure P-8, the 3rd respondent has upheld the order of appointment Annexure P-2 of the petitioner as Bhandari as legal and valid vide order dated 27.1.2011 Annexure P-9. In an appeal preferred by the 4th respondent before the 2nd respondent, the execution of the order Annexure P-9 was ordered to be stayed vide interim order passed on 17.6.2011 Annexure P-12. Not only this but the 2nd respondent vide order dated 27.6.2011, Annexure P-13 passed in an application under Section 73 of the Evidence Act directed the 3rd respondent to hold inquiry and submit the report.
19. The inquiry was conducted and it transpired that the petitioner secured order of appointment as Bhandari on the basis of forged and fictitious documents as the devotees of Deity, who allegedly recommended his appointment, when associated during the course of inquiry resiled from their version, as according to them, they never sworn in any affidavits under their signatures recommending thereby the appointment of the petitioner as Bhandari. They rather came forward with the version that the appointment of 4th respondent as Bhandari has approval of all concerned and that it is he who is working as Bhandari of the Deity. This has led in passing the order Annexure P-15 by the 2nd respondent whereby the appeal preferred by 4th respondent was allowed and the appointment of the petitioner as Bhandari quashed and set aside.
20. It is seen from this order that the appointment of the petitioner as Bhandari no doubt has been quashed and set aside, however, it is left open to the 3rd respondent to take action, if any, warranted against the 4th respondent, as per the provisions of the Act, in the given facts and circumstances including appointment of anyone else fit to be appointed as Bhandari, after following the procedure prescribed under the Act.
21. Impending action, if any warranted, against 4th respondent, he however, has been allowed to continue as Bhandari of the temple. In view of this part of the impugned order Annexure P-15, I fail to understand as to what prejudice has been caused thereby to the petitioner for the reason that in case there are allegations against the 4th respondent and any action is warranted against him, it has been left open for the 3rd respondent to look into the matter and take appropriate action as warranted including the appointment of anyone else fit to be appointed as Bhandari. The petitioner, therefore, is at liberty to satisfy the 3rd respondent, in case 4th respondent is not a fit person to continue as Bhandari and so far as this petition is concerned, the same being devoid of any merit, in all fairness and in the ends of justice deserves dismissal.
22. For all the reasons recorded hereinabove, this petition fails and the same is accordingly dismissed. Pending application(s), if any shall also stand disposed of.
