Jammu & Kashmir High Court
Vimal Mishra vs State Of Jammu & Kashmir on 4 September, 2023
Author: Rahul Bharti
Bench: Rahul Bharti
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 03.03.2023.
Pronounced on : 04.09.2023.
OWP No. 763/2011
IA nos. 1419/2011, 1452/2012,
2190/2013, 1/2017, 720/2014,
2262/2012, 1302/2011,
1969/2012, 1952/2012
CM no. 1104/2019 [1/2019]
IA no. 99001/2013 [D-1465/2013]
IA no. 1/2015.
Vimal Mishra,
S/o Late Sh. Nishi Kant Mishra
R/o Vinayak Bazar, Jammu.
.....Petitioner
Through: Mr. Shubam Sharma, Advocate.
Vs
1. State of Jammu & Kashmir
Through its Commissioner/Secretary
Department of Revenue
J&K Govt., Civil Secretariat,
Srinagar.
2. The Deputy Commissioner,
Wazarat Road, Jammu.
3. The Assistant Commissioner,
Nazool (Estate Officer)
Wazarat Road, Jammu.
4. Tarun Dogra,
S/o Late Sh. Vijay Kumar Dogra,
R/o Kachi Chawani, Jammu.
5. Varun Dogra,
S/o Late Sh. Vijay Kumar Dogra,
R/o Kachi Chawani, Jammu.
6. Raju S/o Late Sh. Chhaju Ram
R/o Vinayak Bazar, Jammu.
..... Respondents
Through: Mrs. Monika Kohli, Sr. AAG for 1-3.
Mr. Rameshwar Singh Jamwal, Advocate for 4 & 5.
Mr. L.K. Sharma, Sr. Advocate with
2 OWP No. 763/2011
Mr. Mohit Sharma, Advocate for 6.
Mr. Sahil Sharma, Advocate.
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
ORDER
1. This court is constrained to take an overall stock of the case and the proceedings so far having taken place on the file of this case so as to set a correct perspective to further course of proceedings in the case which otherwise seems to be lost in crowd of applications and interim orders of one kind of other without attending to the main matter.
2. From the pleadings and the documents on record of this writ petition a state of facts is gatherable that one Shri Vinaik Misar had come to be granted, vide a purported Council Resolution no. 1 dated 28.06.1904, land measuring 41 kanal 04 marlas located in Vinayak Bazar, Jammu town free from all charges for the purpose of erection of Dharamsala there at. The construction of Dharamsala had taken place with a garden and a pucca wall. The income derived from the garden was meant to be utilized towards public good.
3. Later on in the course of revenue settlement, the total area of 41 kanals 4 marlas was found to be left 27 kanals 7 marlas assessed to land revenue which was remitted as Muafi tenable during the existence of Dharamsala Vinaik Misar. 3 OWP No. 763/2011
4. This grant is purportedly evidenced by a Memorandum no.
34/88 dated 15.12.1927.
5. From one of the documents on record of this writ petition it is gatherable that said Vinaik Misar, who actually identified his name spelling as Binayak Misra was son of late Sewprasad Misra resident of House no. 54, Burtolla Street, Burra Bazar, Calcutta. Binayak Misra was a tradesman and a money lender who had executed and left a written will qua his estate including with respect to the interest in the said Dharamsala property in terms whereof said testator Binayak Misra had appointed his wife Mst. Sohan Devi and her brother Chhatoo Lal Misra as executors of his said Will.
6. This Will seems to be of the year 1906 and he demised later on.
7. Said Binayak Misra was survived by his widow Mst. Sohan Devi, his widowed daughter-in-law Mst. Raj Devi and two grand-daughters Mst. Sham Devi and Mst. Bhagwan Devi. Binayak Misra‟s son Madan Mohan had predeceased him. In his said Will, Binayak Misra had made provision for his said family.
8. For the purpose of construction of Dharamsala one in Haridwar and one in Jammu, Binayak Misra had reserved a ceiling of Rs. 25,000/- each out of his estate for construction of two Dharamsalas upon completion of which free 4 OWP No. 763/2011 distribution of food was mandated to take place at the respective two Dharamsalas. The expenses of daily charities in said two Dharamsalas was meant to be defrayed out of the income of Govt. Paper for One lac of rupees belonging to his estate.
9. From the record it is gatherable that the testator Binayak Misra‟s widow Mst. Sohan Devi and his brother-in-law Chhaotoo Lal Misra had obtained probate with respect to the will so executed by the testator Binayak Misra from the High Court of Calcutta. As mentioned above the testator Binayak Misra was survived by his widow Mst. Sohan Devi, his predeceased son‟s widow Mst. Raj Devi and Mst. Sham Devi and Mst. Thakar Devi as being grand-daughters, both of them had been married during the lifetime of testator Binayak Misra but both later on became widow. Mst. Sham Devi had two daughters namely Mst. Thakar Devi and Mst. Rup Devi.
10. Mst. Sohan Devi is reported to have executed a Will dated 25th Day of January, 1921 in which she had come to appoint her brother Pandit Chhatoo Lal Misra, Pandit Vishwanath Padha, her widowed daughter-in-law Mst. Raj Devi and her said two grand-daughters Mst. Sham Devi and Mst. Bhagwan Devi as the executors and executrixes and trustees of her said will, entrusting, inter alia, the responsibility of maintenance of Dharamsala at Jammu from time to time with the expenses to be drawn from the income of her estate.
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11. In her said Will, Mst. Sohan Devi had said that in the event of executors/trustees so named by her were to expire or desired to be discharged or refused or become unfit or incapable to act in the said trust then in every such case it shall be lawful for the surviving or continuing trustee or trustees or for the heirs or executors or administration of the last surviving or continuing trustee to appoint a new trustee or trustees in place of trustee or trustees so dying or desiring to be discharged or refusing or becoming unfit or capable to act as trustees and that at no point of time the number of trustees shall be less than two.
12. Mst. Sohan Devi had also declared in her said Will the manner in which Dharamsala in Jammu was to be administered and managed and the duties attached therewith to be discharged.
13. Mst. Sohan Devi had come to execute a Codicil dated 04.06.1921 wherein beside other things Mst. Sohan Devi came to declare that if any of the trustees appointed by her in terms of her will dated 25.01.1921 were to die or desired to be discharged or refused or become unfit or incapable to act in the said trust then it was to be lawful for the surviving or continuing trustee or trustees or for the heirs or executors or administrators of the last surviving or continuing trustee to appoint a new trustee or trustees in the place of the trustee or trustees so dying or desiring to be discharged or refusing or 6 OWP No. 763/2011 becoming unfit or incapable to act as such trustees, then the eldest male heir of the trustee or trustees for the time being so dying or retiring or becoming unfit or incapable was to become the trustee in the place of the deceased or retiring trustee.
14. Upon the demise of Mst. Sohan Devi and her daughter-in-law Mst. Raj Devi, a litigation had come to take place before the then High Court of Judicature at Fort William in Bengal on its ordinary original civil jurisdiction side involving (1) Mst. Sham Devi, (2) Mst. Bhagwan Devi in their individual capacity as executrixes and trustees of estate of Mst. Sohan Devi, (3) Mst. Rupeswari Devi, (4) Sh. Ram Kant Misser as parties of first part against (5) Biswa Nath Misser in his individual capacity as well as executor and trustee to Mst. Sohan Devi and legal representative of Mst. Raj Devi, (6) Sh Chhatoo Lal Misser also in his individual capacity as also an executor and trustee of estate of Vinayak Misser and Mst. Sohan Devi and (7) the Mercantile firm Vinayak Misser as parties of other part.
15. This litigation seems to have resulted in a purported written court settlement dated 20.11.1933 covering all aspects of issues relatable to the estate of Vinayak Misser, his widow Mst. Sohan Devi and his widowed daughter-in-law Mst. Raj Devi by virtue of compromise judgment dated 22.11.1933. 7 OWP No. 763/2011
16. In terms of this settlement with respect to Dharamsala at Jammu it was settled that for the sake of better management, maintenance and upkeep to be undertaken by the parties above named to the said litigation in the manner that the management of Dharamsala at Jammu and was to be exclusively in the hands of Biswanath Misser and every income derived there from including the shops existing, the garden therewith and open land appurtenant thereto to be utilized for upkeep and maintenance of said Dharamsala.
17. Said Biswanth Misser was given the exclusive management of the Dharamsalas without admitting any interference from other trustees.
18. As per this settlement it was declared that each and every trustee of the estate of Mst. Sohan Devi was/were to mutate their respective names as trustees to the said estate in the Collectorate and the Municipality and that on the death of each and every trustee, his heirs or legal representatives were to be seized of with same rights and powers as were being given by the said settlement deed.
19. As provided in clause (q) to the Schedule to the Settlement deed dated 20.11.1933, the trustees, to whom the management of the respective Dharamsalas was entrusted, were entitled to nominate one or more persons to be the 8 OWP No. 763/2011 trustee/trustees in his/their place after his/their respective death or resignation.
20. As mentioned in the said settlement judgment, Dharamsalas at Haridwara and Jammu were to have sign-board containing inscription "Vinayak Mishra Dharamsala" prominently affixed.
21. It appears that the said Biswanath Misser, purportedly acting in his capacity as trustee entrusted with exclusive authority to manage Dharamsala and its property in Jammu, during his life time came to appoint his son Nishikant Mishra, the petitioner‟s father, as co-trustee along with one Dina Nath Dogra who was his son-in-law. Nishikant Mishra is reported to have expired in 1980 leaving behind Dina Nath from being a co-trustee to sole trustee. There is no document on record evidencing this nomination of two trustees for this Court to take it as verified fact but nevertheless the fact has been acted upon as such.
22. It seems that during the life time of Dina Nath, a civil suit no.
250/1986 under section 92 of the Code of Civil Procedure, Svt. 1977 had come to be filed against him and others in the year 1986 before this Court by three persons, namely, Dr. Gouri Shanker, Mohan Lal Gupta and Durga Dass Dogra against Dina Nath and others with respect to state of affairs of the Trust in reference under the management of Dina Nath as surviving one of two co-trustees.
9 OWP No. 763/2011
23. Dina Nath is said to have executed a Will dated 17.11.1986 purportedly nominating his son-Vijay Kumar Dogra and one Chajju Ram to be the two trustees in his place after his demise.
24. The civil suit so filed in the year 1986 against Dina Nath and others before this Court came to be dismissed vide an order dated 31.03.1989 on account of the fact that upon death of said Dina Nath on 04.01.1987, the suit has been rendered infructuous. It seems that during the pendency of this suit, this court had appointed the Deputy Registrar of this Court as receiver vide an order dated 01.05.1986 with respect to the Trust property of Vinayak Dharamshala Jammu and said receiver was allowd to continue as receiver with direction to manage the property of the Trust on terms and conditions spelled out in an order dated 01.05.1986. The dismissal of the suit has come to take place vide an order dated 31.03.1989 and the receivership of Deputy Registrar of this Court was to remain for a further period of three months from the date of dismissal of the civil suit.
25. Against this order dated 31.03.1989 of dismissal of civil suit, a LPA no. 8 of 1989 had come to preferred by the said three plaintiffs above named in which Chhaju Ram and Vijay Kumar sought their impleadment as respondents along with three other persons figuring as respondents before the 10 OWP No. 763/2011 Hon‟ble Division Bench of this Court which resulted in its disposal vide a judgment dated 29.09.1992.
26. Upon the institution of the LPA, the Division Bench came to direct continuation of receivership of the trust property by the Deputy Registrar of this Court on the terms and conditions as directed during the pendency of the civil suit.
27. In its said judgment, the Hon‟ble Division Bench came to observe the fact that the Trust property has been under the management of court appointed receiver for the last more than fifteen years and that Dina Nath appointed two co- trustees namely Vijay Kumar (son) and Chhaju Ram had not functioned as such because of presence of the court appointed receiver.
28. The Hon‟ble Division Bench came to dispose of said LPA by allowing Vijay Kumar and Chhaju Ram, as being nominated trustees, to act as trustees to manage the properties in right perspective taking into consideration the spirit and purpose behind the creation of the Trust. Said two trustees were obliged to maintain proper accounts and not to act in a manner to decrease the rent of the properties or the income. The said two trustees were empowered to utilize the income of the property for improving and maintaining all the property of the Trust with immediately steps to be taken to get the property get in good 11 OWP No. 763/2011 condition in all respects. The money of the trust then lying with the then receiver was to be kept in a fixed deposit in some nationalized bank not to be withdrawn without permission of the Court and only interest accruing thereon to be utilized by the two trustees for the improvement of the property. The accounts were to be got audited annually through a recognized chartered accountant.
29. The most important direction which came to be given by the Hon‟ble Division Bench in its judgment dated 29.11.1992 was that in order to have check over the management of the property by the two trustees, the District and Sessions Judge, Jammu was to check the accounts once in a month for which purpose payment of an amount of Rs. 300/- as monthly fee was prescribed.
30. This is how Vijay Kumar (son) and Chhaju Ram came into scene in their purported status to act as trustees qua the „Vinayak Misher Dharamshala Trust‟.
31. Following the direction given in judgment dated 19.0.1992 by the Hon‟ble Division Bench of this court in LPA no. 08 0f 1989 entrusting the authority with respect to operation and checking of accounts of the Trust in the District and Sessions Judge, Jammu, an application had come to be filed by Chhaju Ram before the District Judge, Jammu objecting to the fact that his co-trustee Vijay Kumar had appointed his son Varun 12 OWP No. 763/2011 Kumar Dogra to manage the Trust property and also to operate the bank account of the trust then maintained with Citizen‟s Cooperative Bank, Vinayak bazaar Jammu. This objection of Chhaju Ram came to be disposed of by the District Judge, Jammu in terms of an order dated 16.04.2002 thereby declaring that Vijay Kumar had no authority to appoint his son-Varun Dogra as his attorney holder to manage the trust properties and operate the accounts of the trust.
32. Chhaju Ram came to expire on 27.02.2004 which brought his son Raju into scene as claimant to the position of trustee in place of his father by virtue of a purported Will dated 17.10.2003 alleged to have been executed by Chhaju Ram in favour of said Raju.
33. Vijay Kumar Dogra came to expire on 27.03.2011 having left a Will dated 23.03.2002 registered before the Sub Registrar, City Judge, Jammu thereby appointing his two sons, namely, Tarun Dogra and Varun Dogra to be the trustees in his place qua the aforesaid Trust.
34. Thus, from the end of Vijay Kumar his two sons, namely, Tarun Dogra and Varun Dogra came to be nominated as trustees and from the end of Chhaju Ram his son Raju came to be trustee post life time of their respective fathers. 13 OWP No. 763/2011
35. Chhaju Ram‟s son Raju came forward with filing of an application-CMP no. 35/2004 with reference to disposed of LPA no. 08 of 1989 for seeking approval of the Hon‟ble Division Bench for his appointment as co-trustee of the said „Vinayak Misher Dharamshala Trust‟, Jammu.
36. Filing of this application by Raju, another application-CMP no. 91/2004 came to be filed by the present petitioner also seeking his appointment as a trustee in place of his father- Nishi Kant Mishra.
37. The aforesaid two applications one by Raju and other by the petitioner came to be dismissed by an order dated 17.11.2004 by the Hon‟ble Division Bench of this Court by holding that it would not be proper exercise of jurisdiction to make any appointment much less appointment of Raju and the petitioner as trustees on miscellaneous applications and, as such, it was left to said two applicants i.e., the petitioner and the Raju to approach the civil court for their appointment as trustees/co-trustees of „Vinayak Misher Dharamshala Trust‟ which, at that relevant point of time, was being purportedly administered and managed by the surviving trustee-Vijay Kumar Dogra s/o Dina Nath Dogra against whom allegations of mismanagement had been registered.
38. The Hon‟ble Division Bench in its order dated 17.11.2004 provided that in the event of any suit being filed by any of the 14 OWP No. 763/2011 said two applicants, the parties to the suit were to suffer no prejudice by virtue of an order dated 29.09.1992 passed in LPA no. 08/1989 and the order dated 17.11.2004 dismissing the two applications no. 35/2004 & 91/2004.
39. Following this order dated 17.11.2004 of the Hon‟ble Division Bench of this Court, the petitioner herein came to file a civil suit no. 139 instituted on 10.12.2004 before the Court of learned City Judge, Jammu against the existing one of two co-trustees, namely, Vijay Kumar Dogra and Raju, the son of the deceased co-trustee Chhaju Ram.
40. Raju also came to institute a civil suit on file no. 26/Civil on 19.01.2005 before the Court of First Additional District Judge, Jammu against Vijay Kumar-the existing co-trustee as defendant no. 1 and the petitioner herein as defendant no. 2.
41. In the civil suit filed by the petitioner before the Court of learned City Judge, Jammu, an application for temporary injunction came to be dismissed vide an order dated 12.04.2005.
42. Similarly, in the civil suit filed by Raju before the Court of First Additional District Judge, Jammu, an application for temporary injunction also came to be dismissed vide an order dated 25.05.2005 by the trial court of First Additional District Judge, Jammu against which CIMA no. 101/2005 preferred 15 OWP No. 763/2011 before this Court also came to be dismissed vide an order dated 05.06.2008.
43. In the face of pendency of the said two civil suits, one filed by the petitioner and the other filed by Raju in which Vijay Kumar Dogra, the then existing co-trustee happened to be the defendant no. 1 in both the suits, said Vijay Kumar Dogra also came forward with an institution of a civil suit no. 47/Civil on 22.03.2011 titled „Vinayak Misher Dharamshala Trust vs. Vimal Mishra and others‟ before the court of Second Additional District Judge, Jammu.
44. Within five days of filing of said civil suit, Vijay Kumar Dogra came to expire on 27.03.2011 thereby bringing his two sons, namely, Varun Dogra and Tarun Dogra, acting purportedly as his legal heirs by virtue of reference to Will dated 23.02.2002 constituting them to be the trustees in their father‟s place, into the litigation scene.
45. Said Tarun Dogra and Varun Dogra came to make an application on 12.05.2011 for seeking their impleadment in place of their father Vijay Kumar Dogra as plaintiff in the civil suit on file no. 47 so filed by their father in the name of Vinayak Misher Dharamshala Trust before the Court of 2nd Additional District Judge, Jammu.
46. Said Varun Dogra and Tarun Dogra also came to make an application for seeking their impleadment in the civil suit filed 16 OWP No. 763/2011 by the petitioner before the Court of City Judge, Jammu in which their father Vijay Kumar Dogra was figuring as defendant no. 1.
47. The petitioner herein, while his first civil suit before the court of learned City Judge, Jammu was so pending, came forward with the institution of a second civil suit no. 2/COS filed on 09.04.2011 against Shri Vinayak Mishra Dharamshala Trust through Principal District Judge, Jammu and Sh. Raju Sharma S/o late Chhaju Ram Sharma as two defendants in the suit before the Court of Additional District Judge, Jammu. The suit was filed by taking recourse to Section 92 of the Code of Civil Procedure Svt. 1977.
48. Upon institution of the said second civil suit before the Court of Additional District Judge Jammu, the petitioner came to withdraw first civil suit from the Court of City Judge, Jammu and an order dated 14.05.2011 came to be passed to this effect.
49. In the meanwhile, the second civil suit filed by the petitioner before the Court of Additional District Judge, Jammu too came to be dismissed for non-prosecution in terms of an order dated 29.04.2011.
Present writ petition 17 OWP No. 763/2011
50. It is in this backdrop of litigations so filed, dismissed and pending that the petitioner came forward with the institution of present writ petition filed on 31.05.2011 before this Court.
51. In this writ petition, the writ petitioner came to name three authorities as respondents, namely, (1) Commissioner/Secretary, Revenue Department the then State of J&K, (2) Deputy Commissioner, Jammu and (3) Assistant Commissioner, Nazool (Estate Officer), Jammu leaving unimpleaded Tarun Dogra and Varun Dogra sons of late Vijay Kumar Dogra and Raju son of Chhaju Ram in the present writ petition.
52. In this writ petition, the writ petitioner has asked for the reliefs unto the above named writ respondents. The reliefs sought for are as under:
"(a) Commanding the respondents to protect the Government land and its interest allotted to Shri Vinayak Mishra Dharamshala Trust for running of Dharamshala in view of death of sole trustee appointed by Hon'ble High Court;
(b) Commanding the respondents for appointment of Receive to manage the affairs with properties of Trust till trustee is appointed and assume charge of Shri Vinayak Mishra Dharamshala Trust;
(c) Commanding upon the respondent for appointing petitioner as trustee of Shri Vinayak Mishra Dharamshala Trust as per original Trust Deed being only lineal descendant of creator of Trust.18 OWP No. 763/2011
53. This Court, on the very first date of listing of this case for admission on 01.06.2011, while directing issuance of notice in the main writ petition as well as miscellaneous application no. 1064/2011 came to direct the Registrar Judicial, Jammu Wing of this Court to take over the Trust property and also take all steps permissible under law to protect the Trust property. This order is still in currency except change of receiver‟s name.
54. In the writ petition, the trust property so referred is Shri Vinayak Misher Dharamshala Trust having land 40.05 kanals (27.04 in standard measure) in Jammu city which presently is of high market value in a prime location. In this writ petition, the writ petitioner claims his entitlement qua the said Trust property of Dharamshala by reference to his grandfather-late Sh. Vishwanath Mishra and his father-late Sh. Nishi Kant Mishra.
55. In the writ petition, the writ petitioner has detailed the historical background of the Trust and Trust property related with it.
56. In terms of the direction as given in the order dated 01.06.2011 by this Court for the Registrar Judicial, Jammu Wing of this Court to take over the Trust property, the then Registrar Judicial, Jammu Wing of this Court-Sh. Kartar Singh is said to have taken the control of the Trust property 19 OWP No. 763/2011 as reflected vide his note dated 11.06.2011 on the office file. This fact is confirmed by the report dated 27.07.2011 submitted by the successor Registrar Judicial, Jammu Wing of this Court the then Mr. Jang Bahadur Singh Jamwal.
57. Through an application-CMA no. 1302/2011 filed on 17.07.2011, the writ petitioner came to seek an amendment in the direction given by this Court in terms of its order dated 01.06.2011 relating to the direction for the Registrar Judicial, Jammu Wing of this Court to take over the Trust property.
58. Through this fresh application-CMA no. 1302/2011, the writ petitioner sought the amendment in the order dated 01.06.2011 on the count that the Registrar Judicial, Jammu Wing of this Court, being over burdened, may not be able to discharge his duties as Receiver of the said Trust and considering the worth of the trust property running into crores, a full time Receiver needs to be appointed for the welfare, protection and care of the said Trust.
59. An application-CMA no. 1338/2011 came to be filed on behalf of Tarun Dogra and Varun Dogra, being sons of Vijay Kumar Dogra, on 19.07.2011 for seeking their impleadment as party respondents in the writ petition. This CMA was preferred by the applicants through Advocate Sh. C.S. Gupta. To this application, the petitioner came to submit his objections on 09.09.2011 objecting to the impleadment.
20 OWP No. 763/2011
60. An application-CMP no. 1402/2011 came to be filed on 29.07.2011 on behalf of six applicants, namely, Ashok Kumar, Dalip Kumar, Krishan Lal, Mohan Lal, Madhu Verma and Mangal Verma for seeking impleadment as party respondents. This application was preferred through Advocate-Anil Verma.
61. An application-CMP no. 1419/2011 came to be filed on 01.08.2011 under Order 1 Rule 10 CPC on behalf of applicant-Raju son of late Chhaju seeking his impleadment as party respondent in the writ petition acting upon the basis of his purported nomination by his father Chhaju Ram in terms of his Will dated 17.10.2003. This application was filed through Advocate Sh. L.K. Sharma. To this application, the petitioner came to submit his objections on 09.09.2011 objecting to his impleadment.
62. An application-CMA no. 2090/2011 came to be filed on 01.11.2011 by Mr. Sanjeev Gupta, the then Registrar Judicial Jammu Wing of this Court, acting as a Receiver. This application was for the purpose of seeking release of salary of the trust‟s employees.
63. In terms of an order dated 02.11.2011, this Court, in response to CMA no. 2090/2011 for seeking proper direction with regard to release of salary of the employees of the Dharamshala and miscellaneous expenses of said 21 OWP No. 763/2011 Dharamshala and also for engagement of an Advocate to contest the cases of Trust before various courts at Jammu, came to direct the Registrar Judicial, Jammu Wing of this Court, as being the Receiver, to examine the claim of the trust‟s employees and also the claim for meeting other expenses and on proper examination to release the salary as due to the employees. Liberty was also granted for engagement of an Advocate to ensure proper representation of the Trust in connection with the cases pending against the Trust.
64. This Court, in terms of an order dated 31.01.2012, came to allow CMPs no. 1338/2011 and 1419/2011 seeking impleadment of Varun Dogra, Tarun Dogra and Raju as party respondents. Thus, from original respondents no. 1 to 3, the writ petition came to have addition of three more respondents making it six respondents in the writ petition, three being official respondents and three being private respondents i.e., Tarun Dogra, Varun Dogra and Raju as respondents 4 to 6.
65. However, with respect to CMP no. 1402/2011, six applicants who were also seeking impleadment came to be allowed intervention only without right to file any pleading in the writ petition.
66. An application-CMA no. 1003/2012 came to be filed by the writ petitioner for placing on record a copy of the complaints 22 OWP No. 763/2011 and police report submitted to the Registrar Judicial, Jammu wing of this Court in his capacity as Receiver in reference to a complaint filed by one Sh. M.P. Sharma.
67. An application-CMA no. 1427/2012 came to be filed by the writ petitioner on 24.07.2012 for seeking withdrawal of the writ petition. This application so filed by the petitioner seeking withdrawal of his writ petition came to be conceded by the respondents no. 4 and 5 i.e., Varun Dogra and Tarun Dogra as is gatherable from the order dated 27.08.2012.
68. Confronted with the fact that the petitioner was seeking to withdraw his writ petition, an application-CM no. 1786/2012 came to be filed on 10.09.2012 by the respondent no. 6- namely, Raju seeking his transposition as writ petitioner. This application was filed on 10.09.2012. To this application, the respondents no. 4 and 5 came to submit their objections on 18.10.2012.
69. An application-CMA no. 1952/2012 came to be filed on 27.09.2012 by an applicant-Ram Lal seeking permission for renovation of a House no. 264.
70. An application-CMA no. 1969/2012 came to be filed on 03.10.2012 by an applicant-Parshotam Lal for seeking permission to carry out necessary repairs and renovations of rented shop belong to the Trust.
23 OWP No. 763/2011
71. On 21.11.2012, an application-CMA no. 2662/2012 came to be filed by the Registrar Judicial, Jammu Wing of this Court seeking to be relieved from the duty of receivership vested in terms of the order dated 01.06.2011. This application was filed by Sh. R.S. Jain the then Registrar Judicial, Jammu wing of this Court.
72. Reply-cum-Objections on behalf of the respondent no. 6-Raju to this writ petition came to be filed on 16.02.2012 through Advocate M/s Leela Karan Sharma and Associates.
73. Objections on behalf of respondents no. 4 and 5 i.e Tarun Dogra and Varun Dogra to CMA no. 1427/2012 of the petitioner seeking withdrawal of the writ petition came to be filed on 26.07.2012.
74. An application-CM no. 926/2013 came to be filed by an applicant-Sunil Jamwal, purportedly acting as Manager of Shri Vinayak Mishra Dharamshala Trust, for seeking release of salary of seven employees of the Trust. This application was filed on 13.05.2013.
75. An application-CMA no. 2662/2012 filed by the Registrar Judicial, Jammu Wing of this Court, the then Mr. R.S. Jain came to be allowed by this Court in terms of an order dated 27.11.2012 relieving the then Mr. R.S. Jain, Registrar Judicial, Jammu Wing of this Court from the office of Receiver qua the Trust in reference and the parties came to be directed 24 OWP No. 763/2011 to propose the name of an officer to replace the Registrar Judicial, Jammu Wing of this Court to act as Receiver of the Trust in reference.
76. The respondents 4 and 5 namely Tarun Dogra and Varun Dogra came to submit their reply-cum-objections to the writ petition 14.03.2012
77. An application-CMA no. 1427/2012 filed by the petitioner seeking withdrawal of the writ petition came to be withdrawn by the petitioner as is born out from the order dated 09.07.2013 resulting in dismissal of the said writ petition. Consequently, the application-CMP no. 1786/2012 filed by respondent no. 6-Raju for seeking his transposition as writ petition also came to be rejected.
78. Vide the same very order dated 09.07.2013, Sh. Harbans Lal, former District and Sessions Judge came to be appointed as a receiver in place of Registrar Judicial, Jammu Wing of this Court.
79. An application-CMA no. 1465/2013 came to be filed on 24.07.2013 seeking fixation of terms and conditions of the Receiver who then was Mr. Harbans Lal, District and Sessions Judge (Retired) appointed as Receiver in terms of the order dated 09.07.2013.
80. In terms of an order dated 01.11.2013, this Court came to settle an amount of Rs. 5,000/- fee for the Receiver with a 25 OWP No. 763/2011 direction unto the Receiver who then was Mr. Harbans Lal, former District and Sessions Judge, to take over the Trust property and was given an authority to pursue and attend all litigation concerning the Trust pending in the civil courts below. In addition, an application-CMA no. 1826/2013 filed for the purpose of seeking direction to the SHO concerned also came to be disposed of with a direction to the SHO concerned to extend all cooperation to the Receiver.
81. An application-CMA no. 1826/2013 came to be filed directing the Registrar Judicial, Jammu Wing of this Court as being ex- receiver to handover the records maintained by him from the date of his appointment as a Receiver and further seeking direction in favour of the new Receiver, namely, Sh. Harbans Lal, District and Sessions Judge (Retired) to operate the bank accounts.
82. An application-CMA no. 2190/2013 came to be filed on 18.11.2013 by the then Receiver Mr. Harbans Lal, District and Sessions Judge (Retired) seeking his relievement from Receivership of the Trust.
83. This Court in terms of an order dated 03.12.2013 came to call upon the parties to suggest the name of an arbitrator to be appointed to replace Mr. Harbans Lal, former District and Sessions Judge in the office of Receiver.
26 OWP No. 763/2011
84. In the meanwhile, at this stage of the case, the pre-admission pleadings in the writ petition had come to be completed as is reflected from the order dated 03.12.2013.
85. In terms of an order dated 22.11.2014 this Court came to appoint, with the consent of the parties, Mr. Dev Raj Sharma, former District and Sessions Judge as new Receiver in place of Harbans Lal, District and Sessions Judge (Retired).
86. In terms of an order dated 05.02.2015, this Court came to direct Receiver-Sh. Dev Raj Sharma, District and Sessions Judge (Retired) to take care of repair and maintenance of the Trust property.
87. Direction as given in the order dated 05.02.2015 came to be followed by an order dated 02.03.2015 whereby the newly appointed Receiver Mr. Dev Raj Sharma, District and Sessions Judge (Retired), was directed to submit inventory of the Trust property in addition to the status report.
88. On 07.05.2015 this court came to admit this writ petition to final hearing when respective objections filed on behalf of respondents no, 4 to 6 came to be treated as counter and the petitioner given time to file rejoinder which has so far not been filed.
89. Application-MP no. 1/2015 came to be filed on 15.12.2015 on behalf of the Receiver-Sh. Dev Raj Sharma, District and Sessions Judge (Retired) seeking permission for renovation of 27 OWP No. 763/2011 the building and using of open space for parking area belonging to the Trust. This application was filed on 15.12.2015. To this application, petitioner came to submit his objections on 14.07.2017.
90. Reply to the writ petition on behalf of the respondent no. 2- the Deputy Commissioner, Jammu came to be filed on 17.12.2016.
91. This Court, in terms of an order 14.07.2017, came to take notice of the physical position obtaining with respect to trust property as reported by receiver Sh. Dev Raj Sharma and also with respect to a proposal mooted by him through his MP no. 1/2015 for using vacant area of 5 kanals for parking purposes to generate income, this court in terms of an order dated 14.07.2017 came to direct the receiver to approach JKPCC with a request for renovation and repair work qua the Dharmshala building which is said to be comprised of 23 rooms out of which 17 in a dilapidated condition requiring repair and renovation. This Court came to defer consideration of the request for permission to use open space for parking purposes as solicited by the receiver.
92. An application-CMA no. 1/2017 (4761/2017) came to be filed on 04.12.2017 by respondent nos. 4 and 5 namely Tarun Dogra and Varun Dogra thereby seeking removal of the current Receiver Mr. Dev Raj Sharma, District and Sessions 28 OWP No. 763/2011 Judge (Retired) qua the trust property. This application for seeking removal of the Receiver-Dev Raj Sharma, District and Sessions Judge (Retired) is based on allegations of misconduct of office of receiver by said Dev Raj Sharma.
93. This application came to be replied by the Receiver-Sh. Dev Raj Sharma, District and Sessions Judge (Retired) through his objections filed on 21.04.2018 through Advocate Sh M.L. Gupta.
94. This Court, in terms of an order dated 01.05.2018, came to direct the receiver not to enter into any compromise with any of the parties who are the tenants in the premises belonging to Vinayak Misher Dharamshala Trust or create any other encumbrance or right in favour of any of the parties.
95. On behalf of the respondents no. 4 and 5 i.e. Tarun Dogra and Varun Dogra, a response to the objections submitted by receiver Sh. Dev Raj Sharma with respect to his removal sought, came to be filed on 04.05.2018.
96. Receiver Mr. Dev Raj Sharma acting through Advocate Mr. M.L. Gupta came to file an application IA No. 1/2019 on 07.02.2019 before this Court thereby seeking amendment with respect to the order dated 14.07.2017 passed by this Court imparting instructions for the receiver to follow.
97. As per fact reference, Vinayak Misher Dharamshala Jammu is said to have property presently obtaining in the form of 50 29 OWP No. 763/2011 shops, 100 house premises, 30 dharamshala rooms and vacant land.
98. In the aforesaid state of proceedings in the case, the respondents no. 4 and 5 namely Tarun Dogra and Varun Dogra came to prefer on 18.11.2022 a time barred LPA aimed against order dated 01.06.2011 read with order dated 22.11.2014 of this court with respect to and relating to appointment of receiver in the case. For the sake of reference, it is mentioned that in terms of order dated 01.06.2011, this Court had appointed Registrar Judicial, Jammu Wing of this court to be receiver and in terms of order dated 22.11.2014 this Court had come to appoint in replacement by consent of all the parties Sh. Dev Raj Sharma former District Judge, to be receiver.
99. Since the appeal being time barred as such it was accompanied with an application for condonation of delay CM no. 6948/2022 which came to be disposed of by the Hon‟ble Division Bench vide its order dated 05.12.2022 with a direction for the Single Bench to consider the writ petition for its expeditious disposal.
100. In the overall facts and circumstances of the case, this Court has first to deal with the application CM no. 01/2017 (4761/2017) filed by respondents no. 4 and 5 i.e., Tarun Dogra and Varun Dogra for seeking removal of Mr. Dev Raj 30 OWP No. 763/2011 Sharma as receiver qua the trust properties. Given the fact that the appointment of Mr. Dev Raj Sharma as receiver had proceeded on the consent of all the parties concerned i.e., petitioner, the respondents no. 4 and 5 and respondent no. 6, as such, the petitioner as well as respondent no. 6 also need to reply to this application CM no. 01/2017 (4761/2017) filed by the respondents no. 4 and 5 for seeking removal of Mr. Dev Raj Sharma as receiver. Let the requisite response be filed by the petitioner as well as respondent no. 6 within a period of two weeks from the date of this order.
101. Till the disposal of this application with respect to removal of Mr. Dev Raj Sharma as receiver, the application IA no. 1/2019 filed by the Receiver-Mr. Dev Raj Sharma for seeking modification of the order dated 14.07.2017 shall stand deferred.
102. The petitioner is directed to place on record certified copies of plaints with respect to two civil suits filed by him i.e. civil suit no. 139/2004 filed before the court of learned City Judge, Jammu, withdrawn in terms of order dated 14.05.2011 and civil suit no. 02/COS of 2011 filed on 09.04.2011 before Additional District Judge, Jammu dismissed for non- prosecution on 29.04.2011.
103. The petitioner is further directed to disclose on affidavit as to whether there is any proceedings initiated by him pending 31 OWP No. 763/2011 before any civil court of law, be it in the form of a civil suit or restoration of civil suits.
104. The production of certified copies as directed above and placing on record of affidavit be done by the petitioner within a period of two weeks.
105. The respondents no. 4 and 5 namely Tarun Dogra and Varun Dogra are directed to place on record certified copy of civil suit no. 47 of 2011 titled "Vinayak Misser Dharamshala Trust vs. Vimal Mishra and ors" which was instituted before the court of 2nd Additional District Judge, Jammu. The respondents no. 4 and 5 shall also file an affidavit with respect to latest status of civil suit, be it in the form of its pendency or disposal. Needful be done on the part of respondents no. 4 and 5 within a period of two weeks.
106. Respondent no. 6-Raju is directed to file certified copy of civil suit no. 24/Civil of 2005 titled "Raju Vs. Vijay kumar and Vimal Mishra" along with an affidavit with respect to last/latest status of the said civil suit, be it in the form of its pendency or disposal. Needful be done within a period of two weeks.
107. Receiver Mr. Dev Raj Sharma is directed, by reference to order dated 02.03.2015, to produce the inventory of the property of the Trust. This direction has so far been not complied with till date by receiver Mr. Dev Raj Sharma as such he is requested 32 OWP No. 763/2011 to comply with the said direction by providing inventory of the trust property in whatever form it is obtaining, be it immoveable/moveable/bank accounts. In addition, receiver Mr. Dev Raj Sharma is also requested to place on record a list of all the pending or disposed of civil cases in the courts below, be it by or against the Trust. The list of cases to mention the title of the case, the name of the court and its last/latest status. Needful be done by the receiver within a period of two weeks.
108. List this case on 25.09.2023.
(Rahul Bharti) Judge JAMMU 25.08.2023 Naresh, Secy.