[Eminent Domain] HP HC | Can a writ in the instant nature be allowed to direct Temple authorities to spend the amount collected through donations for construction of parking sites

Himachal Pradesh High Court

Himachal Pradesh High Court: A Division Bench of Tarlok Singh Chauhan and Chander Bhusan Barowalia, JJ. dismissed the petition being non-maintainable.

The petitioner claiming himself to be a ‘social and public-spirited person’ has filed the instant petition for the grant of writ in the nature of writ of mandamus or any other appropriate writ, order or direction directing the respondents to identify the land in and around Shri Mata Chintpurni Ji Temple for construction of parking facility to the devotees, who used to come there to pay obeisance throughout the country.

Counsel representing the petition submitted that Mata Shri Chintpurni Temple which has been taken over by the Government under the Himachal Pradesh Hindu Public Religious Institution and Charitable Endowments Act, 1984, has miserably failed to provide parking for devotees in and around the temple resulting in haphazard parking as also fleecing of devotees. It was further submitted that in recent times, even the local people in and around the temple made offer of their land to be gifted to the temple for the purpose of construction of parking, but the respondents did not pay any heed to accede to such request.

It was further submitted that one Sanjay Kumar S/o Babli Ram was ready and willing to offer his 4 Kanals land for the construction of parking free of costs, but the terms and conditions on which he was offering the said land i.e. one month time for operation of parking from the offered land was found to be unreasonable and the temple trust resolved to vide resolution not to accept any conditional gift and only accept unconditional gifts.

On intervening the matter, one Kewal Krishan, ExPresident, Gram Panchayat submitted that ample amount for parking facilities has been provided by the Temple trust as during Navratras and melas because of rush all traffic is stopped at Bharwain and worshipers and visitors walk upto the Temple except small taxies which are used for taking old and other people who cannot walk. Therefore, the parking site proposed by the petitioner also cannot be used in the melas and Navratra days. He further submitted that however, if someone is willing to donate the land for construction of the parking facilities, there can be no objection in providing open ground for parking without much cost of the Trust at those sites.

The Court observed that realm of policy is exclusive to the domain of the executive which may comprise both formulation of policy as well its execution and in absence of any policy, the Court cannot direct its formulation.

The Court relied on a judgment Parkash Chand v. State of H.P., AIR 2015 H.P. 42 and observed that it is the State which has power to deprive any person of property in terms of Article 300 A. The deprivation of property as observed earlier shall be only by authority of law, be it an Act of Parliament or State Legislature, but not by executive feat or order and must take place for public purpose or public interest.

The concept of eminent domain, which applies when a person is deprived of his property postulates that the purpose must be primarily public and not primarily of private interest and merely incidentally beneficial to the public.

The Court also observed that an act or law, which deprives a person of his private property for private interest, will be unlawful and unfair and undermines the rule of law and can be subjected to judicial review. Article 300A would be violated if the provisions of the law authorizing deprivation of property have not been complied with in letter and spirit. The law has to be reasonable and must comply with other provisions of the Constitution failing which it will be subject to judicial review.

The Court held the petition to be non-maintainable.[Anant Sharma v. Ashok Sharma, CWP No. 2570 of 2019, decided on 16-03-2021]

Arunima Bose, Editorial Assistant has reported this brief.

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