Place of Worship

Management lies under the control of descendant of the founder

04 January 2020


High Court Division :
(Special Original Jurisdiction)
Mohammad Ullah J Gobinda Chandra Tagore J
Judgment
April 30th, 2019
Nirmal Chandra Nath.........Petitioner
vs
Government of People's Republic of Bangladesh represented by the Secretary, Ministry of Religious Affairs, Bangladesh Dhaka and 14 (fourteen) others. ........Respondents
Constitution of Bangladesh,1972
Article 102(2)
The control and management of the Mandir /Temple/Biggrah i.e. the place of worship shall be retained with the descendant of the founder. The properties dedicated to the purpose of management of the Mandir also belongs to the deity/deities.
If someone or somebody or a group of people intends to show that the Mandir is a public debottor/trust, he/she or they may take recourse to law under Section 92 read with Section 93 of the Code of Civil Procedure before an appropriate forum. Usually, a Mandir, whether it is private or public debottor, is opened for Hindu devotees irrespective of caste and creed so that they can offer puja therein. Fact remains that the Mandir was established long back and the devotees are attending therein on different religious occasions and the Sebaet is entertaining them and for that reason it has not transformed into a public debottor. . ..... (19)
Radhakanta Deb vs The Commissioner of Hindu Religious Endowments Orissa, AIR 1981 SC 798; Panchkari Roy V5 Amodr LaI Burman, 41 and  CWN 1349; Deoki Nandan vs Murlidhar, 1957 AIR SC 133 ref.
Moteen Uddin Anwar with Md Tashadduk Hasan, Advocates-For the Petitioner.
Probir Neogi with Anil Chandra Debnath, Advocates-For the Respondents Nos.5-15.
Judgment
Mohammad Ullah J : On an application under Article 102 of the Constitution of the People's Republic of Bangladesh, the Rule Nisi was issued calling upon the respondents to show cause as to why the impugned letter bearing Memo No. aweg/g/wcGm/wewea-2017/161 dated 25-4-2017 issued under the signature of the respondent No.2, Personal Secretary (Deputy Secretary), to the then Minister, Ministry of Religious Affairs requesting the Deputy Commissioner, Faridpur to constitute a committee purportedly protecting for the debottor property of Sree Sree Madan Gopal Biggrah and Sree Sree Shib Biggrah Mandir (hereinafter referred to as "the Mandir") located at Faridpur Sadar Upazila under District Faridpur (as contained in Annexure-F) should not be declared to have been issued without lawful authority and is of no legal effect and or why such other or further order or orders as to this Court may seem fit and proper shall not be passed.
2- At the time of issuance of the Rule on 22-5-2017, the operation of the impugned letter dated 25-4-2017 was stayed initially for a period of 3 (three) months and subsequently from time to time the period of stay was extended.
3. Shortly stated the relevant facts necessary for disposal of the Rule are as follows:
4. In order to establish the Mandir in Faridpur Sadar Upazila late Chandra Kanta Nath transferred 1.27 acre of land through a registered Orpannama dated 20-5-1941 in favour of the deity. From the recital of the said Orpannama, it would be seen that the Mandir is a private charity. The petitioner being the adopted son of the testator has been performing, maintaining and running the religious ritual and affairs of the Mandir as Sebaet. According to the said Orpannama, the petitioner shall continue to carry on the affairs of the Mandir as Sebaet until his death. It has further been stated in the petition that said Chandra Kanta Nath had no issue and during his life time, on 10-3-1976, he executed a will (Charampatra) authorizing his second wife, namely, Sneaholata Nath to adopt a son. Subsequently, after the death of the testator, Sneaholata filed Probate Suit No. 2 of 1975 in the Court of District Judge, Faridpur under Section 289 of the Succession Act, 1925. Subsequently, the said suit was transferred to the Additional District Judge, Faridpur for disposal. By the order dated 22-5-1976, the said will of the testator was granted to Sneaholata. According to the will of the testator, Sneaholata through a registered deed dated 28-3-1989 adopted the petitioner as their son upon observing the ritual. After the death of Sneaholata, the petitioner being the adopted son took over the responsibility and management of the affairs of the Mandir as Sebaet and still he has been discharging his J religious duties towards the deities. The petitioner came to know that some vested) quarters made a complaint to the Deputy Commissioner, Faridpur alleging that the affairs of the Mandir was not running as per the Orpannama made by the testator and some persons had been misappropriating the fund earned from the debottor property. Thereafter, on 24-4-2017, the Deputy Commissioner issued a letter to the Upazila Nirbahi Officer, Faridpur Sadar to enquire into the matter and to submit a report within 7 (seven) working days. Beside, the respondent No. 2 being the Personal Secretary to the then Minister, Ministry of Religious Affairs issued the impugned letter dated 25-4-2017 requesting the Deputy Commissioner, Faridpur to form a committee with the respondents No. 5-15 along with him to run the affairs of the Mandir. Thereafter, the petitioner having been aggrieved by such activities of the respondents served a notice demanding justice upon the respondents No. 1-4 requesting them to cancel, withdraw and rescind the said impugned letter dated 25-4-2017 but resulted in vain. In such facts and circumstances, the petitioner filed the instant Writ Petition and obtained the Rule and the order of stay as stated above.
5. After issuance of the Rule, the respondents Nos. 5-15 got themselves added in the Writ Petition vide order dated 2,4-7-2017 who have contested the Rule by filing an affidavit-in-opposition denying the material allegations made in the writ petition contending, inter alia, that the petitioner has been misappropriating the fund of debottor property and enjoying the same as his own property which is against 'the will of the testator and the Mandir is a public debottor and, as such, they had filed an application to the then Minister, Ministry of Religious Affairs for preventing the misappropriation and embezzlement of the fund earned from the debottor property. Accordingly, the respondent No.2 issued the impugned letter requesting the Deputy Commissioner, Faridpur to form a committee with the respondents No. 5-15 along with him for running and managing the affairs of the Mandir and, as such, the respondent No. 2 committed no illegality in issuing the impugned letter and thus the Rule is liable to be discharged.
6. Mr Moteen Uddin Anwar, learned Advocate appearing for the petitioner submits that the impugned letter is nothing but a DO letter issued by the respondent No.2 while he was performing the duty as the Personal Secretary to the then Minister, Ministry of Religious Affairs and thus the impugned letter has no binding effect on the recipient thereof and, as such" the same is liable to be declared to have been issued without lawful authority and beyond the jurisdiction of the respondent Number 2.
7. The learned Advocate submits further that the petitioner has been running, managing, and maintaining; the affairs of the Mandir from long time according to the will of the testator made in the Orpannama dated 20-5-1941 inasmuch as from the recital of the said Orpannama the Mandir is a privet debottor and therefore the respondents have no legal authority to interfere into the affairs of the Mandir in any way.
8. To substantiate  his submissions, the learned Advocate  has referred to the decisions in the cases of:
(1)     Sree Dallim Kumar Saha vs. Bangladesh represented by Deputy Commissioner, Feni Office of the Deputy Commissioner, Feni an unreported decision in Writ Petition No. 8149 of 2006 which was upheld vide judgment and order dated 24-3-2009 passed in Civil Petition For Leave To Appeal No. 1249 of 2008.
(2) Radhakanta Deb vs The Commissioner of Hindu Religious Endowments Orissa, reported in AIR 1981 SC 798 and,
(3) Panchkari Roy vs Amodr Lal Burman, reported in 41 CWN 1349.
9. On the other hand, Mr. Probir Neogi, learned Advocate appearing for the respondents No. 5-15 submits that the Mandir in question is a public debottor and the people should have free access to offer Puja to the deity as and when they desire.
10. The learned Advocate submits further that according to the Orpannama and will of the testator, the Mandlr is a public charity and, as such, the Government or the People at large should have the right to interfere into the affairs of the Mandir for ensuring its safety and security so that the devotees can offer Puja as and when they desire.
11. The learned Advocate for the respondents No. 5-15 seeks to' rely on the decision in the case of Deoki Nandan vs Murlidhar, reported in 1957 AIR SC 133.
12. We have considered the submissions of the learned Advocates for the contending parties and perused the materials on record.
13. Admittedly, the property involved in the instant Writ Petition is a debottor property. It is also undisputed that, Chandra Kanta Nath established the Mandir in question upon executing an Orpannama dated 20-5-1941. The petitioner claims that the Mandir is a private debottor property; on the other hand, the respondents No. 5-15 claim that it is a public debottor property.
14. The relevant' recital of the said Orpannama with regard to appointment of the Sebaet and management of the debottor property runs as follows:
“???? ?????????? ???? ??????????? ????? ?????? ??????????? ?????????? ??????? ??? ????? ????????? ????? ?? ?????? ???? ????? ??????? ?????? ??????????? ?????????? ??????? ??? ? ??????? ???????? ?????????? ????? ?? ?????? ???? ????????? ?????? ??????????? ?????????? ??????? ?? ???? ??? ?? ????? ??????? ????? ???? ???????? ?????? ???????”
??. ?? ??? ??????? ???? ?????? ?? ??? ???? ????????? ????:-
“??? ????? ???? ?????????? ???? ??????????? ????? ??? ?? ??? ?????? ?????? ? ??????????? ????????? ???? ???? ???? ???? ????????? ????? ??? ? ??????? ???????? ???? ?????? ???? ??? ???? ???????? ????? ???? ???? ?? ??? ???????? ???? ??????? ????? ?? ???? ?????? ???? ? ???? ???? ???? ??? ????? ???????? ????? ???? ???? ??? ??????? ??????????? ???, ??? ? ???? ??????? ?????? ???? ??? ???? ???? ??? ???????? ????? ???? ???? ??? ??????? ????????? ?????? ???? ??????? ???? ? ??????”
16. From the above recitals of the Orpannama, it appears that the Sebaet of the Mandir shall be the heir and successive heir of the testator and not any stranger. Accordingly, the management of the debottor property is devolved on the said heir or successive heir of the testator.
17. The respondent No.6, Sankar Kumar Saha, on 25-4-2017 filed an application to the then Minister, Ministry of the Religious Affairs to form a committee along with the Deputy Commissioner, Faridpur purportedly, for securing the debottor property. It appears from the Annexure-H to the Supplementary Affidavit filed by the petitioner that the respondent No.2 being the Personal Secretary to the then Minister, Ministry of the Religious Affairs made a recommendation on the said application in the following manner:
“???? ???????, ???????
???? ????? ???? ?????? (??????) ?? ????? ?????????? ????? ??? ???? ???? ???????????? ?????? ??? ????
????-???????
??-?-????
18. At the same time, the respondent No.2 issued the impugned letter dated 25-4-2017 as contained in Annexure-F to the Writ Petition requesting, the Deputy Commissioner in the 'similar manner. We, therefore, deem it necessary to deal with the legal consequence of such letter popularly known as DO letter. A DO Letter is an abbreviation of the term "demi official" letter, which is generally used in the correspondence between two entities, the issuing. .person or authority and the government or non-government officials for an interchange or communication of opinion or information without any formality of the prescribed procedure. This sort of communication has no legal consequence i.e. the recipient of a DO Letter is not lawfully bound to act on the basis of such a letter. However, a  Member of Parliament or any other person may issue a DO Letter with a specific request or recommendation without hampering, curtailing or infringing any statutory right of the other party or against public policy. Being a, Personal Secretary to the then Minister it was imprudent for him to demand or claim favour for any person or a particular group causing detriment to the right of others in violation of the prescribed laws of the land and against the interest of the people in general. There is no doubt that the impugned letter is nothing but a D Letter and not a formal order of the Ministry concerned. Being a Private Secretary, the respondent No.2 has no legal authority to issue such letter. However, we refrain from making any further comment on the conduct of the respondent No.2 inasmuch as it does not involve any question of law but of ethics. The recipient of the DO Letter may or may not honour the recommendation of the issuing person keeping in mind that the action or inaction would be in accordance with the prescribed law.
19. From the recitals of the Orpannama made by the testator, we have already found that the nature of the endowment is a private debottor. So, the control and management of the Mandir/Temple/Biggrah i.e. the place of worship shall be retained with the descendant of the founder. The properties dedicated to the purpose of management of the Mandir also belongs to the deity/deities. In spite of the fact that if someone or somebody or a group of people intends to show that the Mandir is a public debottor/ trust, he/ she or they may take recourse to law under Section 92 read with Section 93 of the Code of Civil Procedure before an appropriate forum. Usually, a Mandir, whether it is private or public debottor, is opened for Hindu devotees irrespective of caste and creed so that they can offer puja therein. Fact remains that the Mandir was established, long back and the devotees are attending therein on different religious occasions and the Sebaet is entertaining them and for that reason it has not transformed into a public debottor.
20. In the facts and circumstances involved in the instant Writ Petition, we have found that the respondent No. 2 had no legal authority to issue the impugned letter either to remove the Sebaet or to form any managing committee in place of the Sebaet. In such view of the matter, the respondent No. 2 having administrative dominance as an executive officer of the Government has no manner of authority to interfere with the management of the debottor property whether it is private or public.
21. The decision as referred to by the teamed Advocate for the respondent Nos. 5-15 does not favour their case; rather it favours the case of the petitioner and goes against them and, as such, the same is not discussed elaborately.
22. The learned Advocate for the respondents No. 5-15 though invited to elaborate his submission on the point of authority of the respondent No.2 in issuing the impugned letter but he did not make any submission on this point.
23. In such view of the facts and circumstances of the case, we find merit in the Rule.
24. Accordingly, the Rule is made absolute. The impugned letter bearing Memo No . aweg/g/wcGm/wewea-2017/161 dated 25-4-2017 issued under the signature of the respondent No.2 is hereby declared illegal, without jurisdiction and is of no legal effect.
However, there would be no order as to cost.

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