- (1.) RAJEEV Gupta, C. J. Mr. R. K. Raizada, Advocate for the petitioners. Mr. Subhash Upadhyaya, Brief Holder for respondents Nos. 1 to 3. Mr. Pankaj Miglani, Advocate for re spondent No. 4 Mr. Rajendra Dobhal, Advocate for respondent No. 5. They are heard.
(2.) PETITIONERS Maharaj Chatendev Abdhoot Ji Ashram Association and Sri Bihari D. Chhabria have filed this writ petition for the following relief's : " (A) Issue an order, direction or writ in the nature of appropriate writ holding the entire proceedings before the Respondent No:4 in respect of mutation of the name of Respondent No:5 in place of name of Chetan Dev Kutia, hav ing the import of conveying the impression of ownership of Re spondent No:5 in any manner or for any purpose what-so-ever, as null and void and writ of certiorari quashing the entire proceed ings before the Respondent No:4 in respect of mutation of the name of Respondent No:5 and/ or. (B) Issue an order, direction or writ. in the nature of writ of Mandamus commanding the Re spondent No: 4 and 2 to record the name of the Public Trust i. e. Maharaj Chetan Dev Avadhut Ji Ashram Association in the mu nicipal records; (C) Issue an order, direction or writ in the nature of writ of Quo Warranto removing the Respond ent No; 5 from the office of Mahant of Chetan Dev Kutia and/or (D) Issue an order, direction or writ in the nature of writ of Mandamus commanding the Re spondent No: 1, 2 and 3 to en sure handing over the possession of the trust property by the Re spondent No:5 to the Board of Trustees of the Association or the Mahant to be appointed by the Board of Trustees and/or (E) Issue an order, direction com manding the Respondent No: 5 to furnish the account to the Board of Trustees of Petitioner No: 1 and/or (F) Issue an interim order or direc tion during the pendency of the writ petition, restraining the Re spondent No: 5 from dealing in any manner with the trust prop erty i. e. Chetan Dev Kutia and commanding the Respondent No: 1, 2 and 3 to ensure hand ing over the possession of the trust property by the Respondent No: 5, to the Board of Trustees of the petitioner no :01 or to some responsible person to be appointed as administrator of the trust property, under the su pervision and administration of the Petitioner Association and/or (G) Issue an order or direction or writ as the Hon'ble Court deems fit and appropriate in the cir cumstances of the case. " From the writ petition, it is ap parent that the writ petition has been filed under Section 7 of The Charitable and Religious Trusts Act, 1920 (herein after referred to as the 'act') read with Article 226 and 227 of the Constitution of India. The matter relates to the man agement of the affairs of the Trust "maharaj Chatendev Abdhoot Ji Ashram Association, Kankhal," District Haridwar". Mr. Rajendra Dobhal, the learned counsel for respondent No. 5 has raised. preliminary objection about the maintainability of the writ petition on the following grounds : (i) The petition under Section 7 of the Act is required to be filed before the court of District Judge and the petition before the High Court is not maintainable, as the High Court of Uttarakhand does not have ordinary original civil jurisdiction; (ii) The writ petition filed under Ar ticle 226/227 of the Constitution of India involves serious disputed questions of fact, which cannot be resolved in a writ petition; (iii) The prayer for issuance of a writ of quo-warranto is a miscon ceived one, as the office of Mahant of an Ashram is not a 'public office'; and (iv) For the other reliefs, such as furnishing of the account etc. , the petitioners have alternative statu tory remedy and can also file a civil suit for these reliefs.
(3.) 1 The petitioners' case is that ini tially the property in question was pur chased by Maharaj Chatendev Abdhoot Ji vide a registered sale deed in the year 1887. Maharaj Chatendev Abdhoot Ji, in his life time, executed a Will, wherein arrangement was made for the manage ment of the property after his death. In the aforesaid Will, it was provided that the management of the property will be carried out by a Board of trustees. Af ter the death of Maharaj Ghatendev Abdhoot Ji, the Trust property in ques tion vested in the Board of Trustees as per the said Will. The Trustees took over the charge of the property and the Trust was registered with the Registrar of So cieties. The Memorandum of Association of Society required the Board of Trus tees to appoint a Mahant to look after the day-to-day business of the Associa tion. The Board of Trustees appointed Mahants of the Ashram from time to time. According to the petitioners, one Swami Brahm Hari was appointed Mahant of the Ashram. After sometime, he tendered his resignation to the Chair man of the Ashram, which was accepted with immediate effect. However, Swanii Brahm Hari was requested to continue till the formal handing over of the charge to the representative of the Trust. 5. 2 The petitioners' case further is that on 14. 08. 1996, respondent No. 5 Mahant Mohan Dass moved an appli cation alongwith No objection letter of Swami Brahm Hari and the Will ex ecuted by Swami Brahm Hari in favour of respondent No. 5 to Nagar Palika, Haridwar seeking mutation of his name as owner/mahant of the Ashram and his name was so recorded in the municipal records. As soon as the petitioners came to know about it, they preferred an ap peal before Chief Judicial Magistrate, Haridwar under Section 160 of the Mu nicipalities Act. Chief judicial Magis trate, Haridwar dismissed the appeal and the dismissal of the appeal was challenged by the petitioners in Writ Pe tition No, 7064 (MIS) of 2001 before the High Court. In the said Writ Petition, the order of Chief Judicial Magistrate, Haridwar, dismissing the petitioners' ap peal, was set aside and the matter was remanded back to the court of Chief Ju dicial Magistrate, Haridwar with a fur ther direction to decide the appeal afresh in accordance with law. Chief Judicial Magistrate, Haridwar, in compliance of the above direction passed by the High Court, heard the appeal afresh and re manded the matter to the Executive Of ficer of respondent No. 4 Nagar Palika, Haridwar for rehearing. The petitioners filed their objections before respondent No. 4 Nagar Palika, Haridwar and these proceedings are still pending before Nagar Palika, Haridwar. Mr. Rajendra Dobhal, the learned counsel for respondent No. 5, referring to Section 7 of the Act, submitted that the jurisdiction to entertain a petition under Section 7 of the Act is conferred on the court of District Judge and, as such, the present writ petition, so far as it is under Section 7 of the Act before the High Court, is not maintainable.;