- (1.) WANCHOO, C. J. 1. This is an application under Article 226 of the Constitution by Prem Ballabh against the State of Rajasthan and others, and the applicant prays for on appropriate writ, direction or order in the nature of a writ of certiorari against the State of Rajasthan, and the Minister in charge Devasthan Department in connection with an order passed by the State of Rajasthan, and communicated to the applicant on 10-1-1953.
(2.) THE case of the applicant is briefly this. THEre is a temple of Shri Vijay Gopalji in the City of Jaipur in johri Bazar. This temple is possessed of certain properties, and was founded by Shri Krishna whom the applicant claims to be his ancestor. It further appears that the temple was granted certain lands by the former State of Jaipur, and the former State of Alwar. THE applicant, however, contends that the temple itself is not a Stats temple, and that the descendants of Shri Krishna are its shebaits. In the year 1925, there was some dispute as to shebaitship, and the then Government of Jaipur passed an order fixing terms for the management of the temple. One of the persons, in whose favour terms were fixed, was Radha Ballabh who is dead. THE others were Suraj Ballabh, Kalyan Ballabh and Durga Ballabh who are all parties to this application. Radha Ballabh died in 1950. THE applicant Prem Ballabh claims to be his adopted son, and therefore entitled to his share in the shebaitship which was half. THE adoption of the applicant by Radha Ballabh is being disputed by Suraj Ballabh. It may be mentioned that proceedings are going on under the Matmi Rules of the former State of Jaipur as to the succession to the estate grant given to the temple by the former Jaipur State. Mutation proceedings are also going on as to the estate grant by the former Alwar State, and we understand that Suraj Ballabh is contesting those proceedings. While these proceedings were going on under the Jaipur Matmi Rules, and the Alwar Revenue Laws, which are in force in the respective areas, Suraj Ballabh applied to the Devasthan Department, Jaipur, and prayed that as Radha Ballabh was dead, his terms of Shebaitship be divided between the remaining three persons. THE applicant objected to this petition. His case was that the said temple was not a State temple, and the question of succession to Radha Ballabh could only be decided by the courts. THE Assistant Commissioner, Devasthan Department, who dealt with this matter, was of the opinion that no executive orders could be passed by Government in this matter, and that the question would be decided in proceedings under the Matmi Rules, which were going on. He thus refused to pass any orders on the application of Suraj Ballabh. THEreupon Suraj Ballabh who was dissatisfied with this order appealed to the Commissioner. No provision of law has been pointed out in support of such an appeal, taut we take it that as the Commissioner was the superior authority, Suraj Ballabh approached him in the hope that he might set aside the order of his Assistant. THE Commissioner, however, thought that the order of the Assistant Commissioner was correct, and refused to interfere. Thereupon, it seems that Suraj Ballabh approached the Government. Here again, no provision of the law has been pointed out under which Suraj Ballabh could have filed an appeal to the Government. In any case, the applicant was informed on 10-1-1953, that the appeal of Suraj Ballabh had been considered, and the Government was pleased to order that the Osra of Shebaitship of Radha Ballabh, who had died issueless, be divided amongst the surviving osredars. There were other consequential orders based on this order. It is against this order of Government that the applicant has filed the present application. It is obvious that the order in question, when it states that Radha Ballabh had died issueless and order division of his Osra among the rest, decides the question of the adoption of the applicant by Radha Ballabh, though that question is in dispute before the proper authorities in proper proceedings under the Matmi Rules of the former State of Jaipur, and the Revenue laws of the former State of Alwar, which are still in force. The applicant contends that as this is not a State temple it was not for the State by an executive order to decide any thing about the management of the temple by various Shebaits by turns. No reply has been filed on behalf of the State, though we have heard learned Deputy Government Advocate on the points involved. The application has been contested by Suraj Ballabh, and two main points have been urged on his behalf. It is first contended that this is a State temple, and it was open to the State to pass any orders with respect to its management. Secondly, it is contended that the application should be dismissed on the ground that the applicant's right as adopted son of Radha Ballabh deceased, is a disputed matter and therefore the applicant has no locus standi to ask for any relief from this court. So far as the first point Is concerned, It is enough to say that the State does not claim that this is a State temple. The mere fact that some land was dedicated by the State to the temple will not make it a State temple; nor the fact that some orders were passed in 1925 by the State as to Osrabandi would make it a State temple, because these orders were passed at a time when the ruler of the Former State of Jaipur was a sovereign authority and could pass any orders As the State is not claiming that this is a State temple, we are not prepared to accept the contention of Suraj Ballabh, and must hold that there is no dispute as to the nature of this temple and the State cannot, therefore, interfere by mere executive order. Coming to the next point, it is now settled that if the applicant under Article 226 has no right, he cannot ask this Court to issue any writ, direction, or order in his favour. Reference in this connection may be made to -- 'the State of Orissa v. Madan Gopal', AIR 1952 SC 12 (A) and --'mohi Chandra v. Secy. Local Self Govt. , Assam', AIR 1953 Assam 12 (B ). The argument is that as the adoption of the applicant is disputed by Suraj Ballabh, he has no present right whatsoever in this temple, and therefore this Court should not interfere with the order passed by the State. The applicant, however, does not ask this Court to declare him the adopted son of Radha Ballabh. What the applicant contends is that he claims that he is the adopted son of Radha Ballabh, and that claim is being investigated before certain authorities under the Matmi rules of the former State of Jaipur, and under the Revenue Laws of the former State of Alwar. He also submits that, if necessary, he may have to bring a suit in a court of law to establish his claim, and that he has a right to do so. In these circumstances, the applicant has a right to say that his claim should be considered by the proper authorities or by the proper Court, and the State Government in its executive capacity should not intervene and decide the question of adoption in the manner in which the order of Government, dated 10-1-1953, seems to have done, as the Devasthan Department has no jurisdiction, either under the Matmi Rules, or under the Alwar State Revenue Laws, to pass such an order. Reference in this connection may be made to -- 'ameerunnissa Begum v. Mahboob Begum', AIR 1953 SC 91 (C ). In that case, there was a dispute about the property left by a certain Nawab in Hyderabad. There were proceedings between the various heirs before various authorities. In April 1950, a law was passed by the State of Hyderabad settling the dispute, and deciding the question of succession in favour of one of the contesting parties and against the others. The law was challenged as invalid, and it was held that it was invalid, as it was hit by Article 14 of the Constitution. Though in that case the question whether the applicant had any right was not raised, it is obvious that the Supreme Court, which had already decided in -- 'madan Copal's case, (A)', that no writ could' be issued unless an applicant had a right, would not have interfered unless the applicant of that case had a right. It is true that the right to succession was disputed in that case also. In that case the Supreme Court observed as follows at page 95: " Their claim to the estate of the late Nawab which they wanted to assert under the general law of the land is itself a valuable right, and the deprivation of that right by a piece of discriminatory legislation would be sufficient to bring the case within the purview of Article 14 of the Constitution. " The right which the applicant in the case before us had, is his claim to the estate of Radha Ballabh deceased, which he wants to assert under the general law of the land. If it was not possible for the State to interfere with that right by legislation, it is, in our opinion even less possible to interfere with it by a mere executive order passed under the authority of no law. In this view of the matter, we are of opinion that the order passed by the State, and contained in their letter No. P 1 (36) Kar/52, dated 10-1-1953, is illegal and must be set aside. We, therefore, allow the application, and setting aside the order in question leave it to the parties, who are contesting the claim to the share left by Radha Ballabh deceased, to fight it out before the proper Court or proper authorities under the various laws in force. The applicant will get his costs from Suraj Ballabh. We pass no order as to costs against the State. . ;