Jharkhand High Court
Atish Kumar Singh vs Urban Development Department on 7 June, 2017
Author: Pradip Kumar Mohanty
Bench: Chief Justice, Ananda Sen
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (PIL). No. 1590 of 2017
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Atish Kumar Singh son of Sri Kapildeo Singh, resident of Kanke, P.O. and P.S.-Kanke, District- Ranchi, Jharkhand.
.... Petitioner.
Versus
1. The State of Jharkhand through the Chief Secretary, Govt. of Jharkhand, Ranchi, Project Building, Dhurwa, P.O. and P.S. Dhurwa, District- Ranchi.
2. The Principal Secretary, Urban Development and Housing Department, Govt. of Jharkhand, having its office at Ground Floor, Engineer Hostel No. 1, Near Gol Chakkar, Dhurwa, P.O. and P.S. Dhurwa, District- Ranchi.
3. The Principal Secretary, Home Jail and Disaster Management Department, Govt. of Jharkhand, having its office at Ground Floor, Engineer Hostel No. 1, Near Gol Chakkar, Dhurwa, P.O. and P.S. Dhurwa, District- Ranchi.
4. The Principal Secretary, Revenue, Registration and Land reforms Department, Govt. of Jharkhand, having its office at Ground Floor, Engineer Hostel No. 1, Near Gol Chakkar, Dhurwa, P.O. and P.S. Dhurwa, District- Ranchi.
5. The District Sub-Registrar, Kutchary Road, P.O. GPO, P.S. Sadar, District- Ranchi.
6. The Municipal Commissioner, Ranchi, Municipal Commission, Kutchary Road,, P.O- GPO, P.S.- Sadar, District- Ranchi.
7. The Superintendent of Police, Anti Corruption Wing, Central Bureau of Investigation, Ranchi, having its office at Kutchary Road, P.O.- GPO, P.S.- Sadar, District- Ranchi.
.... Respondents.
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CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE ANANDA SEN.
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For the Petitioner :M/s Rajendra Krishna, Amit Sinha,
Advocates.
For the Respondents :M/s P.K. Sinha, K.P.Deo, Manish
Kumar, Advocates.
For the State : Mr. Jai Prakash, A.A.G.
For the intervenor : Mr. Rajiv Ranjan, Sr. Advocate.
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ORDER
Reserved on:27/04/2017 Delivered on: 07/06/2017
Order No. 08; Dated: 07 /06/2017: The petitioner, by filing this Public Interest
Litigation, has prayed for an enquiry by an agency, other than the agency of the 2 State, in the matter of alleged illegal transfer of property belongs to Shree Ram Janki Tapowan Mandir Trust and all other co-related actions of the Trust.
2. The case of the petitioner as it appears from the petition and the submission made, is that Shree Ram Janki Tapowan Mandir Trust is a Hindu Religious Trust and the deity is Sri Ram Jankiji. On 25.2.1948 a trust deed was executed by forming a trust for the purpose of maintaining the deity Shree Ram Jankiji and to manage the properties of the deity and the said Trust was known as "Shree Ram Janki Tapowan Mandir Trust" (hereinafter referred to as 'the Trust'). Schedule A of the said Trust contains the details and the description of the several properties, which belongs to the said Trust. The aforesaid trust deed was a registered trust deed. On12.5.1987, the trust deed was re-constituted by cancelling the earlier deed and a fresh deed was registered. Again the said trust deed was reconstituted vide registered deed dated 20.9.2005 by cancelling the earlier trust deed dated 12.5.1987.
It is further case of the petitioner that by cancelling the earlier trust deeds and by executing a fresh deed on 20.9.2005, grave illegalities have been committed with a mala fide intention and the property of the deity is being squandered, misappropriated and was sold/transferred for personal benefits of few persons. As per the petitioner, the property belong to the deity and for managing and maintaining the same, the trust was formed and there was no provision in the original trust deed to transfer/sale the property of the deity. It is further case of the petitioner that with ulterior motive, the deed of 1987 has been cancelled and new deed of 2005 has been prepared only for the purpose of usurping the properties of the deity to facilitate illegal transfer of the land. He further submits that for private interest, the immovable properties of the religious trust are being sold and 3 transferred by hatching a great conspiracy just to take away the properties of the deity.
The further case of the petitioner is that the trust in question has been endowed with landed properties in various locality of the District-Ranchi and after creation of the State of Jharkhand, Ranchi became its capital. With sole intention of misappropriating the landed property of the deity, the earlier deed was cancelled and new trust deed dated 20.9.2005 was registered incorporating new clauses, which is absolutely impermissible and amounts to breach of trust. This was done with an ulterior motive and with criminal intention. It is also submitted that by way of conspiracy, the approval was obtained by the Board of Religious Trust for conversion of the landed property of the trust and subsequently, an approval was also obtained from the learned Judicial Commissioner, Ranchi by suppressing material facts. It is also submitted that one Panna Lal Modi out of his free Will, transferred the landed property of 03 Bighas, 05 Kathas and 06 Chhataks in favour of Shree Ram Janki Tapowan Mandir Trust, Niwaranpur, Ranchi with respect to Plot No. 1800, Ward No. 3, Village- Niwaranpur, Ranchi. The said property was mutated in the name of Shree Ram Janki Tapowan Mandir, Niwaranpur, Ranchi, and purposely the word 'Trust" was excluded. The Jharkhand State Hindu Religious Trust Board vide letter dated 13.6.2006 issued no objection in favour of Mahanth Ram Sharan Das, a Trustee of the said Trust for construction of Flats. Thereafter the plots and the properties were transferred to other persons, which is in utter violation of the trust deed and is against the wishes of the founder of the trust and by suppressing the original trust deed, approval was obtained from the learned Judicial Commissioner, Ranchi. It is also alleged that Mahanth Ram Sharan Das who is only one of the members of the Trust entered into various 4 development agreements with several persons and is selling the property of the deity. It is further alleged that maps are also being sanctioned by sanctioning authority without even going through the original Trust deeds and without taking into consideration the purpose of the trust and without considering the wishes of the founder of the Trust.
It is submitted that the property of the deity cannot be misappropriated and squandered in this manner and it is a very large conspiracy on the part of some influential persons. It is lastly submitted that since the entire property belongs to the deity, who is a perpetual minor, it is the duty of the Court to protect the property of the deity. Since a large scale conspiracy with a criminal intent has been hatched by several persons to usurp and misappropriate the property of the deity, it is necessary to investigate the conspiracy by an independent Investigating Agency and thereafter, take an appropriate action against the persons involved. The counsel for the petitioner, to strengthen his submission, has also referred to and relied upon the judgment reported in AIR 1998 Rajasthan 85 (Temple of Thakurji Vs. State of Rajasthan and Ors.).
3. An intervention application was filed on behalf of one Mahanth Ram Sharan Das, Pujari of the Tapowan Mandir on the ground to implead him as party respondent since the outcome of the writ petition is going to affect the right of the intervener. The intervener filed several documents and he was allowed to assist the court on all the issues basing on all documents filed by him to his satisfaction.
It was submitted by the intervener that as per the trust deed, there is a provision to develop and transfer the property of the deity. It is further submitted that some of the properties of the Trust were being illegally encroached by the local inhabitants and for better returns and to increase the fund, it was decided to 5 transfer the land. It is further submitted that several flats were constructed over the property belongs to the Trust and was thus the same was transferred. It has been brought to the notice to the Court that for better management, a fresh trust deed was executed, which was registered on 20.9.2005 and subsequently, appropriate approval was obtained from the Bihar State Board of Religious Trust and the learned Judicial Commissioner also gave approval for conversion of the land. It is submitted that Section 44 of the Bihar Hindu Religious Trust Act, 1950(now the Jharkhand Hindu Religious Trust Act (hereinafter to be referred as 'the Act') gives power to transfer immovable property of a religious trust after taking previous sanction from the Board and since the Board has already accorded sanction, therefore, there is no illegality in the entire process. It is further submitted by the intervener that Section 28(j) of the Act also gives power to the Board to permit conversion of any property of the trust with the approval of the District Judge and as that has been done in the instant case therefore, there is no illegality. It is further submitted that accounts are being maintained in a proper manner and this writ petition has been filed with mala fide intention and the same is liable to be dismissed.
4. We have heard the counsel for the petitioner, the intervener, the Jharkhand State Hindu Religious Trust Board, the State, the Ranchi Municipal Corporation, Ranchi and the Counsel for the CBI and we have also gone through the records of this case.
5. The intervener has brought on record true copy of the trust deed of 1948, photocopy of deed of 1987 and photocopy of deed of 2005. The deed of 1948 clearly mentions that the deity of Shree Ram Jankiji is established in Doranda, Tapowan, Ranchi and to look after the property of the deity and for the 6 management of the deity and its properties, the trust in the name and style of 'Shree Ram Janki Tapowan Mandir Trust" was constituted. The founder of the trust was Mahanth Shree Ram Saran Das. The said deed contains details of the several properties. Thus, it is clear that the properties were endowed to the deity and the custodian of the same is the Trust. The said trust deed does not provide for formation of a new trust after cancelling the same. In 1987, a fresh Trust deed was constituted by cancelling the deed of 1948. The said deed has also been produced by the intervener. The said trust deed of 1987 bears the reference of the trust deed of 1948. From the recital of the same, it is clear that it is an admitted fact that the properties were endowed to the deity i.e. Shree Ram Jankiji and the trust was formed in 1948 for the purpose of serving the deity and also for managing the properties of the deity. From recital of the trust deed, it is also quite clear that the property belongs to the deity, which has been mentioned in 1987 deed that since unwarranted elements have entered into the Committee and the properties are being mismanaged, it was felt necessary to cancel the earlier deed of trust and re- constitute a fresh one. This was the background of constituting and registering the fresh trust deed of 1987. Clause 9 of the trust deed of 1987 clearly prohibits the committee/sevayat or any one from selling or transferring or settling any land of the temple/deity. The Founder of the Trust deed of 1948 and that of 1987 was Mahanth Shree Janki Jivan Sharan, Chela-late Sri Ramdas Paramhans. Suddenly, on 20.9.2005, a separate deed was created and registered. From perusal of 2005 trust deed, one can understand that since some of the old trustees died or some of them are unable to perform the duty, it is necessary to reconstitute it. On this pretext, the trust deed of 1987 was cancelled and the fresh trust deed of 2005 was registered showing Mahanth Shreeram Sharan Das as the founder being Chela of 7 late Janki Jivan Sharan. This person was not the founder of the Trust. It is not known as to how this person became a "founder" when the trust was admittedly created by some one else. This new trust deed of 2005 incorporates a clause by which, the landed property can be converted and Flats can be constructed. Relying on this clause, admittedly the lands were given on conversion and Flats were constructed and sold. This means, transfer of the landed properties of the deity has been taken place.
6. Be it noted that the trust deeds of 1948 and 1987 have been executed by Mahanth Shree Janki Jivan Sharan who was, in fact, the 'founder' of the Trust. The intervener claims that their right to develop the property of the deity by converting the landed property of the deity for the purpose of construction of Flats is derived from the trust deed of 2005. He also submits that the permission was also accorded by the Religious Trust Board and thereafter the same was also approved by the learned Judicial Commissioner, Ranchi and thus their entire action is being legalized.
7. Section 2(d) of the Jharkhand Hindu Religious Trust Act defines "Founder", which means a person who creates a religious trust. Admittedly, the trust is a religious trust under Section 2(l) of the said Act. From the deed of 1948, it is quite clear that to maintain the property of the deity and to serve the deity, the trust was created and the founder of the said trust was Mahanth Shree Ram Janki Jivan Sharan. The said deed contains the details of several properties which are admittedly a trust property in terms of Section 2(p) of the Act. Section 28(j) of the act also gives power to the Board to sanction conversion of any property of such trust into another property, if the Board is satisfied that such conversion is beneficial for the said trust. The proviso of the said sub-Section itself fixes a rider 8 that no such conversion shall be sanctioned unless the Board so resolves by majority which includes at least three fourth of its members and resolution of the Board is approved by the District Judge. Thus from the aforementioned provision, we find that though the power is vested upon the Board to approve the conversion but the said conversion must be for the benefit of the Trust and must be resolved by a majority of the Board members which should include at least three fourth of its member and the said resolution of the Board must be approved by the District Judge. Section 28(g) of the Act is also an important provision which provides that the Board must give directions for the proper administration of a religious trust in accordance with the law governing such trust and as per the wishes of the founder in so far as such wishes can be ascertained and are not repugnant to such law. It means the wish of the founder is supreme, if it can be ascertained by the document.
8. From the trust deed 1987, it is quite clear that the wish of the founder of the trust was that the properties of the trust could not be sold. This wish was given go-by by subsequent trust deed of 2005. The deed of 2005, as mentioned earlier, shows that Mahanth Shreeram Sharan Das as a founder, who, in fact, was not the founder of the original trust. This is also not known how he became the founder of the Trust. Thus Mahanth Shree Ram Sharan Das who poses himself as a founder in the deed of 2005 was a mere nominated member of the trust along with six others, which is apparent form the trust deed of 1987. Thus, it is clear that one of the members of the Trust has got registered the trust deed by changing the clause of the original trust deed itself against the wish of the original founder. We are drawing this conclusion basing on a simple fact that Clause 9 of the trust deed of 1987 prohibits for selling/transferring of any land of the temple/deity which 9 was the pious wish of the founder. This wish has been given go-by by one of the members of the Committee for the reason best known and the deed was prepared in the year 2005 incorporating a clause to convert and transfer the properties of the trust by utilizing the trust deed of 2005 and the land of this Trust is now being sold/ transferred after constructing multi storied building and flats. Thus, this Court, prima facie, feels that with ulterior motive, the trust deed of 2005 was prepared only to squander the land, which belong to the deity.
9. The intervention petition was filed by one Mahanth Ram Sharam Das stating therein that his right will be affected if any order is passed in this writ petition. This Court fails to understand as to which right of his will be affected if an order is passed in this writ petition in terms of the prayer made by the petitioner. Being a simple member of the Trust, none of his right can be hampered. His only duty is to manage the trust properties for the benefit of the deity and as per the wish of the founder. He has got no personal right as a trustee in this case. As stated earlier, this person has himself become the founder of the existing trust by changing the deed itself, which, prima facie, suggests that the intention is not pious. Subsequent action of obtaining permission from the Board and also from the learned Judicial Commissioner, Ranchi floats from the deed of 2005, whose creation itself is murky.
10. The intervener claims that the permission was granted by the Board for conversion of the landed properties of the deity vide order dated 13.6.2016 and the said order was brought on record by Annexure-1 in this Public Interest Litigation and is not disputed by anyone. The said letter is of Jharkhand State Hindu Religious Trust Board. From perusal of the said letter, it appears that pursuant to a letter of Bihar State Hindu Religious Trust Board dated 4.12.1994, 10 the permission is granted to convert the land of the trust by constructing flats and buildings over the landed properties of the Trust. The letter of 13.6.2006 is signed by the President of the Jharkhand State Hindu Religious Trust Board. Nowhere in the said letter it is stated that the Jharkhand State Hindu Religious Trust Board has permitted for conversion of the land of the deity. Even if such order is there, the same derives the authority of 2005 Trust deed which itself is under cloud. The Jharkhand State Hindu Religious Trust Board relies upon a letter of 1994 of the Bihar State Hindu Religious Trust Board. It is appropriate to point out that in the year 1994, the trust deed which existed did not authorize the trust to sell/transfer the properties of the Trust. In the year 1994 the deed, which was in operation, was the deed of 1987. Paragraph 9 of the deed of 1987 clearly restricts and prohibits the transfer/mortgage of the land of the trust. That being so, it is highly suspicious as to how the Board has granted the permission to convert the lands when the trust deed specifically barred such act.
11. This Court, prima facie, feels that this permission of the Board obtained in the year 1994 is by misrepresentation/fraud. This permission became the basis of the order of the Judicial Commissioner. An act, which is prima facie, bad and fraudulent in nature, cannot get validation by the order of the Judicial Commissioner. Thus, prima facie, the order of the Judicial Commissioner, which may be based on misrepresentation and fraudulent act, cannot be relied upon. It is well settled principle that fraud vitiates everything. The Hon'ble Supreme Court in the case of Meghmala and Others Vs. G. Narasimha Reddy and Others reported in (2010) 8 SCC 383 had held that where an applicant gets an order/office by making misrepresentation or playing fraud upon the competent authority, such order cannot be sustained in the eye of law. It is further held that 11 no judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The Hon'ble Court further went on to hold that dishonesty should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation and in such circumstances, the Court should not perpetuate fraud.
12. This we are discussing on the basis of documents to come to a prima facie conclusion. As mentioned above, in the trust deed of 1987, there was a specific bar of transfer or sale of properties. If that be the situation, then how in the year 1994, a permission was obtained and subsequent connected action was taken by the trustees to transfer the properties. All these actions genuinely create a great doubt about the intention of the trustees and, prima facie, this Court feels that the deed of 2005 was prepared against the wishes of the founder of the trust with some ulterior motive. This finding is prima facie, basing on record, which has been placed before us by the intervener itself. Thus, this Court feels that all these allegations leveled by the petitioner and all the action needs a thorough investigation, as it is a very serious allegation that the properties of the deity are being squandered by some persons, whose prime duty was to safeguard the interest of the deity. It is also the allegation that the deed of 2005 was designed for benefit of some of the persons de hors the interest of the deity. It is also necessary to investigate whether there was actual fraud committed by any person or any member of the Committee or not.
13. Further comparing the schedule of properties/land of 1948 deed with the deed of 2005, we understand that the extent of land has diminished from 19 acres to 7 acres. This also suggests that the transfer of the land has taken place. Moreover, it is an admitted case that lands have been transferred. 12
14. From over all facts, we find that prima facie, the 2005 deed which was prepared by one of the Committee member posing him to be the founder, is not proper. On what real consideration the same was prepared needs to be found out. Was it only for the purpose of selling/transferring the lands? If so, then it is a criminal offence to squander the lands of the deity. Further the schedule of land, could not have been changed, unless some transfer had taken place. Here admittedly transfer had taken place. Then another question arises as to how the properties of the deity got transferred? Who were the persons behind this? This also needs to be found out.
Another aspect is how the State authorities sanctioned maps for construction of the multistoried building. Whether they were misrepresented or knowing fully that these properties are of the deity, they have illegally sanctioned the map and allowed constructions.
15. The intervenor claims that the Board had already permitted them to convert the lands. But this conversion is in terms of the 2005 deed. We, prima facie find out 2005 deed is against the provision of the Act and was created not by the founder of the trust and the clauses of the said deed was against the wishes of the founder of the trust (Ref.- Clause 9 of the deed of 1987). All these prima facie suggest that this action was initiated for some ulterior motive which is against the trust and against the wish of its founder. This Court is of prima facie, view that land of the deity could not have been transferred in any case. This large scale illegality needs to be enquired into. Now the question is, who will do so? The land and trust which is involved in this case is of Ranchi. Allegation is against the Government and the Board. Board consists of Government functionaries. In this case, another issue is illegally sanctioning of map by Government Officials. We 13 find, as submitted by the petitioner that in one Public Interest Litigation being WP(PIL) No. 1531 of 2011 (Har Narain Lakhotia Vs. State of Jharkhand and Others) this Court directed the CBI to enquire/investigate the criminality part in giving such sanction in respect of many buildings of Ranchi. The said order has been upheld by the Hon'ble Supreme Court. This is also one of such case, which needs investigation.
16. On this back ground, this Court feels that this matter be also entrusted to the Central Bureau of Investigation for investigating the criminality part. This would also include the aspects and the intent involved in creation of Trust deed dated 20.9.2005, transfer/conversion of land, permission of maps and all other incidental issues involved.
17. We direct the Central Bureau of Investigation (C.B.I.) to investigate and take appropriate action at the earliest and conclude the same, preferably within six months from today. All the parties will cooperate with the investigation. The State should take all consequent action for restoring the lands in favour of the deity, depending upon the final outcome of the C.B.I. investigation.
18. A copy of this order be handed over to Mr. K.P. Deo, Advocate appearing on behalf of Central Bureau of Investigation for doing needful to comply the order.
19. With the above observations and directions, this writ petition is allowed.
(Pradip Kumar Mohanty, C.J.) (Ananda Sen, J.) NAFR-Anu/-