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Place Of Worship Act: Uttarakhand High Court Dismisses Appeal Against Refusal To Stay Construction Of Crematoria Over Ancient Pilgrimage

LIVELAW NEWS NETWORK
6 Jan 2021 5:05 AM GMT
Place Of Worship Act: Uttarakhand High Court Dismisses Appeal Against Refusal To Stay Construction Of Crematoria Over Ancient Pilgrimage
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The Uttarakhand High Court recently dismissed an appeal challenging an order denying interim relief against construction of a crematoria over alleged land of ancient temple pilgrimage. The Appellant in this case had stated that construction of a Crematoria on an ancient pilgrimage, which is a site of worship for the appellant, is being done without any authority of law and is "in...

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The Uttarakhand High Court recently dismissed an appeal challenging an order denying interim relief against construction of a crematoria over alleged land of ancient temple pilgrimage.

The Appellant in this case had stated that construction of a Crematoria on an ancient pilgrimage, which is a site of worship for the appellant, is being done without any authority of law and is "in blatant disregard of the Constitutional Rights as also in ignorance of bar of Section 3 of The Place of Worship (Special Provisions) Act, 1991."

The Division Bench in appeal comprising of Acting Chief Justice Ravi Malimath and Justice Alok Kumar Verma however did not find substance in any of the contentions and it held that the Single Judge was justified in rejecting the plea for interim relief.

"We do not find any merit in this appeal. The work of construction for crematorium need not be reagitated by us. Building of a crematorium in the site chosen prima facie does not appear to be false. On considering the contentions, we are also of the view that there is no substance in any of the contentions urged by the learned counsel for the appellant. However, it is for the learned Single Judge to decide the said writ petition. For the present it is suffice to hold that the learned Single Judge was justified in rejecting the plea for interim relief. Hence, the writ appeal is dismissed," the Bench ruled.

Background

The appellant, Rajmata Jiya Katyuri Samaj, had filed a writ petition before a single bench of the High Court, challenging the construction of a Crematoria at Ranibagh, Haldwani. The Petitioner had stated that a part of the construction site was a customary land and conversion of land use from an ancient pilgrimage to purely a crematorium site is in the teeth of Section 3 (bar of conversion of places of worship) of the Places of Worship (Special Provisions) Act, 1991.

In essence, she had prayed for modification or alteration of the site plan for the proposed crematorium.

The matter was listed before a Single bench of Justice Manoj K. Tiwari that denied any interim relief and stated "Haldwani is one of the important cities of State of Uttarakhand and its population is increasing day by day. Need for construction of electric Crematoria was felt for a long time and now, pursuant to the funds provided by the State Government, tenders were invited and it is reported that construction has begun. Petitioner claims some customary right over part of the land over which Crematoria is proposed, however, it is an admitted position that petitioner does not have any title over the said land." Moreover, the Court observed that passing an interim order would be against public interest.

Arguments

Following this, the appellant had filed the present appeal, for setting aside the aforementioned order. In the prayer, the appellant had pointed out multiple factual errors in the impugned order, viz.:

The first contention made by the appellant was that she has not challenged the construction of Crematoria as recorded in the impugned order but had only prayed for an alteration of the site plan where the Crematoria is being constructed. The appellant claimed that the impugned construction is being carried out "without any authority of law or bona fide transaction relating to transfer of property of the ancient temple" and that this was in flagrant violation of Section 3 of the Place of Worship (Special Provisions) Act, 1991.

The second contention made by the appellant was that the single bench had observed that the Crematoria was to be constructed in terms of a judicial order given by the Division Bench of Uttarakhand High Court on 17.05.2014. But the appellant claimed that the single Judge had wrongly interpreted that order inasmuch as the division bench had directed the State Government to consider the Detailed Project Report (DPR) submitted by the Municipal Corporation for the construction of an electric crematoria furnace.

The appellant stated, "The aforementioned order nowhere talks of the land of ancient temple- pilgrimage and place of worship be transferred and converted of its religious character to purely crematoria purpose, thereby changing the fundamental religious character of the present place of worship (or as it existed on 15th day of August, 1947), a protection granted under The Place of Worship (Special Provisions), Act, 1991 to the places of worship of the instant kind."

She further added that the correct course for the State Government as also Nagar Palika Haldwani, in the guiding light of order of Division Bench, ought to have been to conduct a land survey/audit and to fact-find whether there is any bar to construction of Crematoria over the ancient pilgrimage and place of worship, particularly in the light of bar of Section 3 of the Act of 1991.

However, the plea stated, "no such report or land audit to the best knowledge of the Appellant/ Petitioner and neither did Ld. Single Judge inquire into that aspect."

The impugned order also found that the appellant had claimed a customary right over the land where the Crematoria was being constructed, when she in fact had no title over the land. The appellant vehemently opposed this finding and stated that the respondents (the Nagar Palika of Haldwani) had claimed ownership of the land as they had insisted that this land belonged to a Late Mahant Shri Ratnagiri. But, it was further expressed by the appellant that the Late Mahant's role was limited to the superintendence of a public place of worship. In this context, the plea stated,

"That a public place of worship and pilgrimage of ancient repute, cannot be held by a single man privately, to be unilaterally decided the fate of (by agreeing to give away the piece of land such that it permanently changes its character from a place of worship to purely crematoria purposes). That no man can transfer better title over the property than what he possesses, is no longer res integra."

The appellant, to support her arguments, cited the report of the Ld. Court Commissioner dated 04.11.2020, which stated that "On the basis of the aforesaid it is humbly reported before this Hon'ble Court that the stripe of land nearly 40 to 50 Feet wide adjacent in southern side of Dharamshala has come within the boundary of proposed Crematoria Complex resulting in encroachment over land over which petitioner claims traditional rights of Jagar."

The appellant asserted that the Single Bench of Justice Manoj K. Tiwari had quoted "public interest" as the only reason for rejecting the claim, while failing to consider the aforementioned report. This, she claimed, was wrong in both, fact and law as "no arm of the State can operate without the authority of law how so noble a purpose it may have."

The prayer further stated, "the appellant only seeks redressal of its grievance to the extent that the small portion of Mela Ground that has been incorporated in the crematoria project may be ousted from the plan and the believers like the Petitioner Society may have continued and unimpeded access to the said plot of land and right to worship and performance of jagar puja thereon, as it has been happening since time immemorial. The appellant is also not staking claim in the plot of land in issue, which continues and shall continue to be a public place of worship. The area concerned is a vast stretch of land and little modification in the development plan can help facilitate harmonious coexistence of modern day developments and ancient religious-cum-cultural rituals and practices.

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