MUAFI AND DERA LANDS

1. Definition : Lands which were given to certain persons mostly religious in the areas of old princely states by the Maharajas. The land is recorded in the ownership of either the Provincial Government (Kapurthala District) or the Deras (Patiala and Sangrur District). The Muafidars and Mohtmims are recorded in the cultivation column. 2. Rules/Instructions : Instruction dated 13/12/82 , 7/8/87, 31/1/92

Para 164 to 167, Para 176 to 182 Punjab Land Administration Manual.

FCR’s Standing Order No. 7

• Important points : The following important points should be kept in view while dealing with Dera and Muafi Lands :

• The Dera / Muafi lands can not be alienated by the Mohtmim.
• The income can be used only for the upkeep of Dera.
• The Muafinama and provisions of Punjab Land Administration Manual determine the terms of Muafi.
• If any conditions are violated or the Dera property is misutilized the Mohtmim is liable to be removed and the Muafi of the Dera is liable to be resumed as per FCR’s Standing Order No. 7.
• The Muafis / Deras are not hereditary and therefore, after the death of Mohtmim a fresh proposal has to be initiated by the DC and a new Mohtmim has to be appointed by the FCR. There is practice at some places of sanctioning a mutation of inheritance of Mohtmims. This is not legal and the heirs of Mohtmim have no right to the Muafi till they are formally appointed by the FCR.
• The instructions , provisions of PLAM and FCR SO 7, High Court Orders and orders passed by FCR have been discussed in the following paragraphs. The readers are requested to go through the following paragraphs for greater details.

• Instructions
• Provisions of Punjab Land Administration Manual : Lease/Sale and Resumption of Muafis
• FCR’s Standing Order No. 7 : Appointment of Mohtmims and Resumption of Muafis
• Shahi Farman and Roznamcha Report
• Deodhi Mualla
• Court Orders
• Conclusion
• Suggestions
• Detailed Court Orders

Instructions

4. Lease and Sale : The Govt. of Punjab, Department of Revenue vide its instructions dated 13/12/82 , dated 7/8/1987 , dated 31/1/1992 asked the Sub Registrars not to register any sale or lease deed in respect of Dera property. It was explained that Mahants and Mohtmims were not competent to dispose of the land attached to the Deras as per the Shahi Farman. The Farman and the terms of Muafi did not permit any alienation of the Dera property. The Revenue Officers were directed to enter a remark in the remarks column of the jamabandi that this property could not be transferred and alienated

Punjab Land Administration Manual

5. Lease and Sale: The provisions of Land Administration Manual explicitly state that no alienation of Dera property in any form whatsoever is permissible.

a. Para 164 - Alienation to relations or strangers should not be recognized or

recorded.

b. Para 165 - Jagirdars and Muafidars have no power of sale, mortgage, gift or sub lease of revenue assignment except under special circumstances, which must be proved.

c. Para 166 - If the manager mortgaged the income on account of his private debts, then the conditions of Muafi are broken.

d. Para 167 - Grants to institutions are not liable for the personal debts of the

manager .

6. Resumption of Muafis : Para 176 to 182 (Page/9) deal with the subject of resumption of Muafis.

a. Para 176 - Muafi can be resumed when the conditions of the Muafinama are broken.

b. Para 177 - The Muafis are liable to be resumed if the income of the Muafi is misused and the property is not properly maintained. The misuse of property for other purposes would also invite resumption.

c. Para 178 - The grants are by their terms expressly conditional on loyalty and good conduct. The grant is held on the above conditions during the pleasure of the government.

d. Para 179 - Misbehavior on the part of Mohtmims would justify resumption of the Muafis.

e. Para 180 -The title of any person to hold or to inherit a Jagir or a share in a Jagir is forfeited with he is convicted of a crime involving a death sentence. If he is in possession, the Jagir will lapse entirely. If his interest in the Jagir is contingent, it will cease as regards himself, but survive as regards his children or other heirs.

FCR's Standing Order No.7

7. Appointment of Mohtmims : Para 14 to 18 of the FCR's Standing Order No.7 deal with the question of succession in respect of Muafis.

a. Para 14 - The succession is not hereditary and the terms of the Muafi indicate clearly who the successor or successors must be.

b. Para 15 - The Deputy Commissioners may sanction the succession of heirs in accordance with the terms of the grant.

c. Para 17 - In the case of assignments of land revenue released during the pleasure of the government, the Financial Commissioner, Revenue is empowered to sanction the succession of heirs to grants of the annual value of Rs.50 or less. For the grants above Rs. 50/-, proposals should be submitted through the Financial Commissioner to the government. The cases of appointment of Mohtmims are sent to the FCR by the DC for approval under this Para. The Mohtmim of Bir Kheri Gujran Dera was appointed by the FCR under this Para in 1989.

8. Resumption of Muafis : Para 23,24 of the Standing Order No. 7 deal with the resumption of Muafis.

a. Para 23 - Paragraphs 176 to 182 of the Land Administration Manual, which should be consulted explain the circumstances under which land revenue assignments are to be resumed. Special attention is invited to the provisions regarding assignments for the support of religious institutions, and to the breaches of the condition of loyalty and good conduct.

b. Para 24 - Financial Commissioner, Revenue has powers to resume any grant of the annual value of Rs. 50/- and less at any time if he is of the opinion that the conditions of which the grant was made are not substantially fulfilled. The proposal for resumption of any grant of which the annual value exceeds Rs. 50/- is to be submitted through the FCR for the orders of government.

Shahi Farman and Roznamcha Report

9. Shahi Farman dated 18/4/1921- A Shahi Farman was issued on 18/4/1921. The courts have held that it has force of law. The English translation of the Farman is reproduced below:

"Approved. Direction should be given heretofore that unless and until any Mahant is appointed through Deodhi Mualla duly approved by Ijlas Khaas till then no land or Muafi should be entered in the name of any Mahant who is entitled to receive Dastar (Turban), Doshalla or any usage or Muafi etc. from the Sandharwala.

And it should also be entered that land concerning any Dera should not be considered as ownership of any Mahant and the ownership of any Mahant should not be entered in government record, instead it should be entered as ownership of Dera under the Management of Mahant. The Mahants shall not be entitled to sell or mortgage the land belonging to Dera. "

Dated 18/4/1921

10. Roznamcha report dated 26/10/1943: This report reproduces the order of Deodhi Mualla. It reads as follows :

" It has come to notice that Mohtmims of Gurdwaras, Mahants of Deras, Pujaris of Temples and Mutbalis of Mosques are leasing out the properties of the institutions at nominal amount for their own benefit for a period ranging from 10 years to 20 years. Their action is detrimental to the progress of the institutions and is deplorable. It is decided that for the proper maintenance of Deras-

a.The properties, which have been leased out for more than 3 years, should bereturned to the institutions.

• In future the Mohtmims and Mahants will not lease out the property for any purpose without the permission of Deodhi Mualla.

Sd/-Pritam Singh

Sardar Sahib Deodhi Mualla "

11. These two orders governed the Muafis in the state of Patiala. The Deodhi Mualla was given the powers to appoint Mohtmims and grant permission for leasing out the properties. There is complete ban on sale and mortgage of Dera properties. Lease with the prior approval of Deodhi Mualla is permitted.

Deodhi Mualla

12. Vide circular dated 13/02/1948 (13/02/2006 BK), the Deodhi Mualla and Karor Department amalgamated into one department viz Deodhi Mualla Department. As a consequence of this one section of the hitherto Deodhi Mualla comprising of Punjab Ragis, Granthis, Pujaris, Annual Holders payable from the State Exchequer has been transferred to the Home Department Pepsu. For the control of another section i.e. management of religious institutions, such as Gurdwaras, Deras and Dharamshalas etc. formerly managed by either Deodhi Mualla or Gurdwara Interim Board, a Dharmarth Board comprising of the following members has been appointed under Roznamcha command.

13. Vide circular No.11 dated 19/07/1949 (04/11/2006 BK), it was clarified that Dharmarth Board had been formed under Roznamcha Commands for controlling the property and administration of the Gurdwaras, Deras and other religious institutions of Sikh Sampardais only, it has no control over the religious institutions of Non-Sikh Sampardais.

14. The courts have interpreted the provisions and held that the powers of Deodhi Mualla as transferred to Dharmarth Board do not relate to non-Sikh institutions. The powers of Deodhi Mualla as relating to non-Sikh institutions have not been conferred on any officer by the State Government. The Deodhi Mualla is a very important institution with regard to non-Sikh Deras and Muafis and therefore the powers need to be given to some officer of the State government or to the Dharmarth Board.

Court Orders

15. The details of the court orders are enclosed herewith. The Shahi Farman, Roznamcha Report and other provisions have been interpreted by the courts.

• Lease: High Court in its order dated 18/2/86 in CWP No. 1706/1985 held that government could not issue instructions prohibiting the lease of Dera land. This judgment was upheld by the Division Bench vide its order dated 9/1/97 in LPA No. 231/1986. It was held that no ban on lease was imposed by the Shahi Farman. The court held that Shahi Farman had the force of law. The FCR in his order dated 4/5/98 permitted leasing out of Dera lands without any conditions. The LR whose opinion was obtained says that long time leases could not be permitted, because they amount to permanent alienation. The opinion of LR was based on High Court order in the case of Shiv Dayal V s Om Parkash reported in 1992 PLJ 249. The High Court had categorically held that 99-year-old lease of religious and charitable property is not permitted.

b. Sale: The High Court vide its order dated 20/12/93 in CWP No.7199/ 1993 held that government could not prohibit sale of Dera lands. This order was also upheld by the Division Bench vide its order dated 9/1/1997 in LPA No.409/ 1994. The first order is cryptic in nature. The court relied on the judgment delivered in CWP No. 1706/1985 and held that no instructions could be issued prohibiting registration of sale deeds. The fact that CWP No. 1706/1985 related to lease of Dera lands was not discussed.

c. Appointment: The Punjab and Haryana High Court in its order dated 14/1/1994 in CWP No. 7142/1992 held that Dharmarth Board and the DC have no power to make appointments of Mohtmims of Hindu religious institutions. Similar judgment was given on 18/1/1994 in CWP No.5388/ 1991 and on 1/2/1994 in CWP No.2940 / 1992. It was held that the institution of Deodhi Mualla merged with the Dharmarth Board and the Board did not have any jurisdiction with regard to Hindu religious institutions.

Conclusion

16. The Dera lands are not the personal property of Mohtmims. The lands are to be used for the purpose specified in the Muafinama. The purpose as per most of Muafinamas is for maintenance of the Dera and running of langar etc. Some of the Deras have big chunks of land. It is very difficult for the Revenue Officers to ensure that Dera lands are not misused and the income of Dera is properly utilized. The incomes of the Dera land has become the personal income of the Mohtmims for all practical purposes. In large number of the cases the Mohtmims have sold / leased out valuable Dera lands. The Deras and their buildings are not maintained properly. They have lost their utility and there are very few followers. The muafis should be resumed.

17. The other serious problem is in regard to Mohtmims. As per Shahi Farman the Bhekh has to recommended a person for appointment as Mohtmim and thereafter his appointed by the FCR. The Bhekh is not very well defined. The appointment of Mohtmims becomes very complicated and it creates litigation and law and order problems. Most of the time death of Mohtmim is not reported and there is no one to look after the property and lands.

18. The Dera lands are exempted from provisions of Punjab Land Reforms Act 1973. Section 14 of this Act stipulates that this Act will not apply to lands belonging to any religious or charitable institution including a temple, Gurdwara and any other religious place of public nature. This exemption was granted in view of public nature of the institutions. This makes it clear that Mohtmims are not the owners of the land and they can not be given powers to alienate the Dera lands.

19. The High Court has merely held that government could not issue general instructions prohibiting lease and sale of Dera lands. The Court has held number of times that the Shahi Farman dated 18/4/1921 is a law. The Farman categorically prohibits sale of Dera lands. It is silent about lease. The Roznamcha Report says that the property can be leased out with the permission of Deodhi Mualla and that too only upto 3 years. The Muafinama gives the details of the purpose of the Muafi and the manner in which the land is to be utilized. The legal position that emerges is that short-term leases can be allowed with the permission of the government. The Mahants are not the owners of the Dera lands and they cannot be permitted to dispose of the property which basically belongs to the community . The contention of the Mahants that they have unfettered right to lease out and sale the Dera property is not based on facts. Their request that the revenue authorities should register the transactions and sanction the mutations cannot be conceded.

20. As explained above the courts have held that Dharmarth Board has no jurisdiction with regard to appointment of Mohtmims. It has also been held that the powers of Deodhi Mualla have not been conferred on any officer. But the provisions of Standing Order No 7 with regard to appointment of Mohtmims have not been questioned or set aside by any court. The state government is, therefore, fully competent to appoint and remove the Mohtmims. The contention of Mohtmims that the government should not interfere with the management of Deras is also without any basis.

21. The powers of the government to resume Muafis in case the conditions attached to them are breached has also not been challenged or set aside by any court. The state government is, therefore, fully competent to examine if any conditions have been violated and resume the Muafis if there are sufficient grounds for doing so. The plea of the Mohtmims that the state government should not interfere with the Dera property is again without any basis.

22. Revenue Department is seized of the problem of Bir Kheri Gujran Dera and the matter will be decided shortly. Once the Muafi is resumed the unauthorized occupants can be evicted by initiating proceedings under the pp Act

Suggestions

23. There are large number of Deras and Muafis in the state especially in the districts of Patiala, Sangrur, Bathinda and Kapurthala. The lands attached to these institutions runs into thousands of acres. ( As per report of DC Sangrur, the total land attached to the Deras in Sangrur district is about 9700 Acres. In Patiala it is said to be 6500 acre.) The land is not only valuable but it also belongs to the community and not to individual Mahants. Besides the Dera properties are source of law and order problem on a number of times. The hands off approach advocated by the Mohtmims cannot be accepted by the state government. We have to be vigilant and take adequate measures to safeguard the valuable properties. Some of the measures suggested are administrative while others are legislative in nature.

24. Administrative Measures: The following steps should be taken to ensure the protection of the properties attached to the Deras/Muafis :

• No alienation of Dera properties in whatsoever form including lease, sale and mortgage is to be permitted.
• The Deputy Commissioners should be asked to compile an inventory of Dera and Muafi lands. The Muafinamas should be examined.

c. The DCs should ensure that Mahants have been appointed where necessary after the death of previous Mahants.

d. If the Mahants have misused the Dera property or failed to protect the lands attached to the Deras, then they are liable to be removed and the Muafi resumed.

e. It should be ensured that income of the Dera is properly utilized and the property is properly maintained. If there has been any violation of any condition then the Muafi should be resumed. Once the Muafi is resumed the state government becomes the owner and the Mahants and their lessees become unauthorized occupants and they can be removed under PP Act.

25. Legislative Measures : As explained above the appointment of Mahants and resumption of Muafi are governed by Shahi Farman, Standing Order of the FCR and the provisions of Punjab Land Administration Manual. They have been interpreted in different ways. It is, therefore, necessary that the position should be clarified and clearly stated. Some of the suggestions are :

a. As argued above the Dera lands have been grossly misused and muafis granted to them do not serve the purpose for which they were granted. It will be better if all such muafis are resumed by enacting a special act on the lines of The Punjab Resumption of Jagirs Act, 1957. The Haryana Government has also taken control of two religious properties, Mansa Devi in Panchkula and Sheetla Mata in Gurgaon. The Deras having sizable population can be managed by a Management Committee of the area headed by some Revenue Officer.

b. The High Court has held that Shahi Farman does not prohibit lease of Dera lands. It could be amended so as to specifically prohibit the lease of the Dera properties.

c. As per Shahi Farman and Roznamcha Report the Deodhi Mualla has been given the powers to appoint the Mohtmims and grant permission for leasing out the Dera properties. The court has held that no officer of the state government has been conferred the powers of Deodhi Mualla. Such powers could be conferred to the FCR.

d. We should enact a comprehensive act governing the Deras and Muafis. The provisions of Shahi Farman, Standing Order and the Land Administration Manual could be consolidated and given a legal back up. The act should cover the appointment and removal of Mohtmims; the procedure regarding lease of Dera properties; the procedure regarding resumption of the Muafis; powers of various officers; the manner in which the income is to be utilized etc.

Special Secretary Revenue

18/1/2001