Neeta Bhardwaj & Ors. v. Kamlesh Sharma

Delhi High Court · 05 Feb 2021 · 2021:DHC:424

Prathiba M. Singh

FAO 36/2021

2021:DHC:424

civil appeal_allowed Significant

AI Summary

The Delhi High Court upheld a female heir’s right to temple puja sewa through a male nominee and appointed Receivers to ensure proper management and accounting of temple offerings amid disputes over control and misappropriation.

Full Text

FAO 36/2021
HIGH COURT OF DELHI
Date of Decision: 5th February, 2021

FAO 36/2021 and CM APPL. 2914/2021, 3573/2021
NEETA BHARDWAJ & ORS. ..... Appellants
Through: Mr. R.K. Bhardwaj, Mr. Neeraj Bhardwaj and Mr. Dheeraj Bhardwaj, Advocates (M: 9312710547, 9311351461).

VERSUS

KAMLESH SHARMA ..... Respondents
Through: Mr. Rohit K. Nagpal, Mr. Akash Bhardwaj and Mr. Dipanshu Gaba, Advocates for R-1,2,3,4,8 and 6 (M:
9873730191).

CORAM:

JUSTICE PRATHIBA M. SINGH Prathiba M. Singh, J. (Oral)

JUDGMENT

1. This hearing has been done through hybrid mode (physical and virtual hearing). CM APPL. 2915/2021(for exemption)

2. Exemption allowed, subject to all just exceptions.

3. Application is disposed of. CM APPL. 2916/2021 (for dispensing service to Respondents No. 2 to 6)

4. Considering the nature of the disputes, this Court deems it appropriate to issue notice to Respondents Nos. 2 to 6. Let notice be served through the counsel appearing for the said Respondents before the trial court. Application is disposed of. FAO 36/2021 and CM APPL. 2914/2021 (for stay), & CM APPL. 3573/2021 (for appointment of Receiver)

5. The dispute in the present case concerns the Kalkaji mandir wherein 2021:DHC:424 various factions claim rights for conducting the puja sewa, share in the offerings and revenues from other moveable/immoveable assets including teh- bazari rights.

6. The present appeal has been filed by the Appellants/ Defendants (hereinafter, “Defendants”) challenging the impugned order dated 16th January, 2021, passed by the Additional District Judge, South East District, Saket Courts, vide which Respondent No. 1/ Plaintiff (hereinafter, ‘Plaintiff’) has been given the bari for performing the puja sewa at Sh. Kalkaji Mandir. Vide the impugned order, the ld. Trial Court has held as under:

“39. It is an admitted fact that plaintiff is one of the legal heir of the deceased Sh. Kali Charan. It is also an admitted fact that Late Sh. Kali Charan is entitled for his share in thula Jasram to the extent of 3pies. On the basis of abovementioned judgment plaintiff is able to make out a prima facie case in her favour and balance of convenience also lies in her favour being a legal heir of deceased Sh. Kali Charan and if her application for this time / bari is not be allowed / adjudicated upon she would undoubtedly suffer a loss. Accordingly, she is entitled for her right in the Pooja Sewa, Tehbazari and other collections during this bari in the Temple Kalkaji for the period abovementioned, in the share of her father Late Sh. Kali Charan, to the extent of her l/6th share. However, I am not commenting upon the ceremonies of Kalkaji Temple that puja sewa is to be performed only by a male member if that is the case then the plaintiff can exercise her right by appointing any male on her behalf as initially also the same was done by Sh. Ajay Kumar @Ajay Bhardwaj.

7. From a perusal of the impugned order above, it is clear that there is no dispute that the Plaintiff is one of the legal heirs of Late Sh. Kali Charan Sharma, and is entitled to 1/6th share of her late father in the Kalkaji Temple. Even before this Court, the said facts are not disputed during submissions. It is also not disputed that the bari changes every month and the present bari, which is between 24th January, 2021 till 23rd February, 2021, is of the Plaintiff. Since as per the customs of Kalkaji Mandir, it was submitted to the ld. Trial Court that only a male member can conduct the puja sewa, the trial court permitted the Plaintiff to exercise her right by appointing a male member on her behalf.

8. The grievance of the Defendants was that the Defendants’ being the male legal heirs ought to be permitted to continue to perform the puja sewa and they would give the 1/6th share to the Plaintiff, who being a female ought not be given the right to nominate anyone on her behalf.

9. On 1st February, 2021, when the matter was listed before this Court, detailed submissions were heard on behalf of both the sides. It is not in dispute that the Plaintiff and the Defendants belong to the same family and are the legal heirs of Late Sh. Kali Charan Sharma. The bari prior to 24th January, 2021 is stated to have been that of other members of the family, and as per the Plaintiff some persons authorised by the Defendants were performing the puja sewa in an unauthorised manner as the Defendants have in fact sold the bari to the said individuals. Ld. Counsel for the Defendants disputed the said position.

10. In view of the contesting claims made by the parties, in order to ascertain the prevalent position at the Mandir, a Local Commissioner was appointed to visit the Kalkaji Mandir and to submit a report on the following aspects:

5. It is submitted that the Bari of the heirs of Late Sh. Kali Charan begins from 23rd January, 2021. Let a copy of order dated 25th January, 2021 passed by the Trial Court be placed on record. In the meantime, as there is a dispute as to who is currently conducting the pooja sewa in the Kalkaji Mandir, it is deemed appropriate to appoint a Local Commissioner. Accordingly, Ms. Manmeet Arora, Advocate (M:9811333871, Email: manmeet.p.arora@gmail.com), who is present in Court today, is appointed as the Local Commissioner to visit the Kalkaji Mandir today itself to ascertain the following: i) Who has been conducting the pooja sewa and collecting the Dakshina/offerings for the following periods: a) prior to 16th January, 2021; b) since 16th January, 2021 to 23rd January, 2021; and c) from 23rd January, 2021 onwards. ii) For the above periods, the Local Commissioner is to ascertain as to who is in control and holding custody of the donation boxes located in the precincts of the Kalkaji Mandir; iii) If there are any account books maintained, the same shall be inspected by the Local Commissioner; iv) Details of the donations received in the Mandir shall also be ascertained by the Local Commissioner; v) Average number of devotees who visit the Mandir daily.

6. The Local Commissioner is permitted to speak to the local shop keepers and other occupants of the temple complex to ascertain the above facts. The Local Commissioner is permitted to take photographs, if needed. The SHO of the concerned area shall provide security to the Local Commissioner. The fee of the Local Commissioner is fixed at Rs.50,000/-, to be shared equally between the parties. Parties, along with their respective counsels, are also permitted to accompany the Local Commissioner during the visit.

11. The report of the Local Commissioner has been received, and is taken on record. The said report is comprehensive and gives a detailed account of the position prevalent at the Kalkaji Mandir. The findings of the Local Commissioner, inter alia, are as under: i. As per the persons who were present in the Mandir, the current “bari” commenced on 24th January 2021 at 12 AM and shall end on 22nd February 2021 at 11:59 PM. ii. The number and inflow of the devotees is almost back to the volume as in pre-COVID-19 days. On an average number of visitors on weekdays is 10,000 and on weekends the number of visitors could be 20,000, even by conservative estimates. iii. The Sh. Kalkaji Mandir Prabhandak Sudhar Committee (SKMPSC) is the representative body of office bearers and is in charge of all arrangements and maintenance of the temple. iv. There are 38 donation boxes in the temple area which are locked with padlocks. The donation boxes are under the direct supervision of the pujari performing the puja sewa. The Defendants as well as the SKMPSC representatives have stated that no account books are maintained qua donations. No one is stated to have any estimate of the donations and offerings received in the past 9 days. v. From 25th December 2020 to 23rd January 2021, puja sewa was performed by Mr. Tanmay Bhardwaj along with Mr. Sanjay Bhardwaj and his nephew Mr. Himanshu Bhardwaj – who had paid the highest bid of Rs. 1.37 crores in the auction. vi. Large posters of Mr. Sanjay Bhardwaj, Mr. Himanshu Satish Bhardwaj, Mr. Sukhlal Bhardwaj and Mr. Praveen Bhardwaj are prominently affixed on the donation boxes as well as various points in the temple describing them as mukhya pujaris. Hoardings state that devotees can ‘only’ contact Mr. Sanjay Bhardwaj for donations and offerings. vii. As ascertained from the YouTube videos put by Sh. Kalkaji Mandir Official, daily aarti is being conducted by Mr. Sanjay Bhardwaj every day since 25/12/2020. The photograph of the Defendants with the pujari and participating in the snan is annexed. viii. The pujari room, supposed to be occupied by the family which carries out the puja sewa is still occupied by Mr. Sanjay Bhardwaj and Mr. Himanshu Satish Bhardwaj, even after the bari ended on 23rd January. ix. Hoardings with the images of the Defendants are also put below the hoardings of Mr. Sanjay Bharadwaj. x. There are 10 donation boxes in the main room with the deity and 28 more donation boxes encircling the Bhawan. The key to the said donation boxes is with the Defendants’, however the Defendants’ claim to not have opened the donation boxes since 24th January 2021. Upon request from the LC, and after some difficulty in opening the boxes, it was discovered by the LC that there were negligible offerings in the donation boxes, in spite of it being claimed to have not been opened since 24th January 2021. 1 donation box was empty, and 4 boxes had some donations (1/3rd of their capacity). xi. The Plaintiff’s authorized nominee Mr. Rakesh Bharadwaj is stated to have visited once, but was not seen in the last 4 days before the inspection. xii. 8 CCTV cameras are installed in the Mandir. Only 5 of these are working. Upon requesting to retrieve footage, only the footage of one date i.e 11th September 2020 has been retrieved from the Digital Video Recorder. xiii. The offerings are to the tune of approximately Rs. 10 lakhs on every weekday and could go up to Rs. 20 lakhs on weekends. xiv. Rents from the shops were yet to be paid to the Pujari who was in charge.

12. A perusal of the Local Commissioner’s report shows that Sh. Kalkaji Mandir appears to have come under the control of one faction who is running it like a commercial enterprise. It is quite disconcerting that the rights to perform puja at a Mandir are being put to auction and third parties are conducting the puja ceremonies. There are various hoardings which have been put up at the site of Sh. Kalkaji Mandir and commercial advertisements of businesses, for example M/s Anand Traders & Co., J&J Buildcon etc., are also shown therein. The nature of these businesses and as to who is running them is not known. The hoardings are extremely prominent and one hoarding is at the entrance of the temple itself. The photographs on the said advertisements depict four individuals- one Mr. Sanjay Bhardwaj, one Mr. Himanshu Bhardwaj, one Mr. Anand Choudhary and one Mr. Sagar.

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13. The report of the Local Commissioner also clearly shows that around 10,000 visitors visit the Mandir on weekdays and around 20,000 visitors visit on weekends. This finding of the Local Commissioner is disputed by ld. counsel for the Defendants. The photographs of the donation boxes, annexed with the said report, also show that some of the donation boxes are empty and some of the donation boxes have some cash which are lying there. According to the local commissioner, there are a total of more than 38 donation boxes in the temple and it is not clear as to who controls these donation boxes. As per paragraph 39 of the report, one of the Defendants, Mr. Vishal Bhardwaj, has informed the Local Commissioner that the donation boxes were received by him on 24th January, 2021 and are in his custody. The said paragraph of the Commissioner’s report is extracted herein below:-

“39. The Appellant Mr. Vishal Bhardwaj stated that the keys to the donation boxes were received by him on 24th January 2021, and are in his custody. He further informed me that he has not opened the donation boxes since 24th January 2021. Thus, as on 01st February 2021 it was the 9th day of the Bari and as per the Appellants, the donation boxes had remained unopened since 24th January 2021. 40. I requested the Appellant to open the ten (10) donation boxes kept in the main room of the Bhawan to inspect the collection of the offerings of the past nine (9) days. The Appellant Mr. Vishal Bhardwaj attempted to open the donation boxes kept in the main room of the Bhawan with the keys in his possession. He had difficulty in identifying the keys for the locks. He was assisted by Mr. Sonu Bhardwaj in identifying the keys and opening the locks. There were admittedly negligible offerings in the donation boxes, and one (1) done1tion box was empty. The small-sized donation

boxes marked no. 2, 3, 4 and 5 purported to contain nine (9) days of offerings were only 1/3rd full. Photographs of the ten (10) donation boxes and the offerings kept in the main room are annexed herewith as Annexure F (colly).”

14. In response to a query put by the Court to ld. counsel appearing for the Defendants, Mr. R.K. Bharadwaj, ld. counsel categorically submits that Sanjay Bhardwaj and Himanshu Bhardwaj are the pujaris in the temple appointed by other members of the family, and not the Defendants. Mr. Nagpal, ld. counsel for the Plaintiff, on the other hand, submits that the Plaintiff has not appointed them as well, and if the Defendants have not appointed them, it is not clear as to how they are performing puja sewa in the Mandir.

15. Insofar as the conduct of the puja sewa is concerned, for 13 days i.e. from 24th January, 2021 till today i.e. 5th February, 2021, the pujaris i.e. Mr. Sanjay Bhardwaj and Mr. Himanshu Bhardwaj have been conducting the puja sewa. It is not clear that who has nominated them to conduct the puja sewa.

16. Considering the fact that the Defendants’ currently do not have their bari, and it is the Plaintiff’s bari, under whose authority the pujaris continue to perform the puja and collect all the offerings and how the same will be paid to the Plaintiff is unclear. The defendants clearly cannot control the donation boxes.

17. While the court was dictating the order, at this stage, ld. counsel for the Defendants submits that the Defendants have appointed Mr. Sanjay Bhardwaj and Mr. Himanshu Bhardwaj.

18. The Defendants, whose authorized persons are in control of the Mandir, have clearly made misleading statements before this court. The Defendants, under the garb of being the male heirs have managed to retain control over the running of the temple and are also currently appropriating all the offerings. Ld. Counsel for the Defendants submits that the Plaintiff would be given her 1/6th share, but in reality no share has been given to the Plaintiff. The offerings at the temple are substantial and there needs to be an account of the collections. The giving of share to the Plaintiff cannot be at the whims of the Defendants, merely on the ground that they are male heirs and the Plaintiff is a female. The Trial Court has maintained a balance in its order. However, considering the prevalent position, certain further directions are needed to ensure proper accountability and smooth functioning of the Sh. Kalkaji Mandir, during the bari of the Plaintiff.

19. In order to ensure that the bari of the Plaintiff as also the donations at the temple is not completely usurped by the Defendants who are clearly in control of the Mandir, this Court deems it appropriate to appoint the following persons as Receivers: i. Mr. H.S.Sharma, Retd District & Sessions Judge (M:

9910384647) ii. Mr. Anurag Ahluwalia, Advocate (M: 9811418995)

20. The following arrangement shall accordingly operate w.e.f. 6th February 2021: a. In so far as the performance of the puja sewa w.e.f. 6th February, 2021 to 24th February, 2021 is concerned, the same shall now be performed by Mr. Rakesh Bhardwaj, who is the authorized nominee of the Plaintiff. The Plaintiff is permitted to appoint any other persons along with Mr. Rakesh Bhardwaj for the performance of puja sewa in accordance with the customs and traditions in the Kalkaji Mandir; b. The pujari room shall be vacated by Mr. Sanjay Bhardwaj and Mr. Himanshu Bhardwaj with immediate effect. The said room shall be occupied by Mr. Rakesh Bhardwaj, during the Plaintiff’s bari; c. The hoardings in the temple precincts and on the donation boxes shall be immediately removed, under the supervision of the Court Receivers. d. All the donation boxes shall now be locked by the Court Receivers and the keys shall be retained with them. For the purposes of identifying and properly securing the donation boxes, Ms. Manmeet Arora, the Local Commissioner shall assist the Receivers. e. The donation boxes shall be opened only once everyday at the time fixed by the Receiver/s either late evening or in the morning. f. The donation boxes shall only be opened in front of the Court Receivers, in the presence of two representatives of the Plaintiff and the Defendants. The amount shall be counted as directed by the Court Receivers and 1/6th share shall be handed over to the Plaintiff’s representative. The remaining amount shall be deposited in the bank account of the Registrar General, Delhi High Court, maintained at the UCO Bank, Delhi High Court branch. The Receivers are free to finalise the modalities for counting of the offerings, and seek the assistance of any persons as they may deem fit for the said purpose. g. A full account of all the offerings being received until 24th February 2021, shall be filed before this Court. h. All the CCTV cameras shall be made operational and the footage shall be in the custody of the Receivers. The CDs containing the CCTV footage shall be handed over by the technician to the Receivers on a daily basis, without tampering the same in any manner.

21. At this stage, ld. counsel for the Defendants requests that even their representatives should be allowed to be present during the puja sewa ceremonies. Considering the fact that from 24th January, 2021 till today, the Defendants have had exclusive control over the entire Mandir, inspite of it being the bari of the Plaintiff, and further keeping in mind their conduct, the request of the Defendants is rejected.

22. Since for the last 12 to 13 days, Defendants have been in control of the performance of puja sewa in the temple, as well as the donation boxes, it is directed that the Defendants shall file an affidavit, within one week, stating the amount of the total collections in the donation boxes, on a per day basis, from 24th January, 2021 till 5th February, 2021.

23. Mr. Sanjay Bhardwaj and Mr. Himanshu Bhardwaj are impleaded in this matter as Respondent Nos. 7 and 8. The Sh. Kalkaji Mandir Prabhandak Sudhar Committee (SKMPSC) is impleaded as Respondent no. 9. They shall file an affidavit on record, explaining as to in what manner they came into control of the puja sewa ceremonies which are being performed in the Mandir, and as to what is the quantum of offerings and thali dakshina that they have been receiving on a daily basis.

24. Upon the Defendants filing the accounts for last 13 days with this court, further orders for adjustment of accounts between the Plaintiff and the Defendants shall be passed.

25. The fees of the Receivers at this stage, is fixed at Rs. 5 lakhs and Rs. 3 lakhs, lump sum, respectively. In order to ensure that the directions are effectively implemented, the Local Commissioner Ms. Manmeet Arora would accompany the Receivers tomorrow i.e., 6th February 2021. The LC’s fee is fixed at Rs. 50,000/-.

26. The directions given above shall be carried out w.e.f. 4 P.M. tomorrow. The fees of the receivers and the LC along with any other expenses which they may incur shall be paid by the Registrar General.

27. The SHO P.S. Kalkaji shall render all assistance to the Receivers and the Local Commissioner to comply with this order and also to maintain law and order.

28. The above arrangement shall be in operation till the next date. List on 25th February 2021 for directions. The Receivers may file an interim report by the said date. List on 12th April, 2021 for further hearing.

PRATHIBA M. SINGH JUDGE FEBRUARY 5, 2021 MR/Ak

Neeta Bhardwaj & Ors. v. Kamlesh Sharma

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