Chattisgarh High Court
Tejram Dewangan vs State Of Cg & Others on 5 March, 2011
HIGH COURT OF CHATTISGARH AT BILASPUR
MA No 91 OF 2010
Tejram Dewangan
...Petitioners
Versus
State of CG & others
...Respondents
! Shri H B Agrawal Sr Advocate with Smt Meera Jaiswal Advocate for the appellant
^ Shri Rajendra Tripathi Panel Lawyer for the State and Shri B P Sharma Advocate for the respondent No 3
CORAM : Honble Mr N K Agarwal J
Dated : 05/03/2011
: Judgement
Appeal under section 43 of Rule 1(r) of Code of Civil
Procedure
JUDGMENT
(Passed on 05/03/2011)
1. Vide order dated 12.11.2010, IXth Additional District Judge (FTC), Durg, dismissed the application filed by the appellant under Order 39 Rule 1 & 2 of CPC. Hence this appeal.
2. The 3rd respondent applied for registration of trust as public trust before the 2nd respondent under Section 4 of the CG Public Trust Act, 1951 (for short `the Act') mentioning the suit property as property of public trust.
3. The 2nd respondent vide order dated 03.05.2010 allowed the application filed by the 3rd respondent for registration of trust as public trust. Vide memo dated 08.06.2010, the 2nd respondent directed the appellant to hand over possession of temple property to 3rd respondent. The above memo was sent by the 2nd respondent through Station Officer, PS Kumhari.
4. The appellant assailed the above order by filing a writ petition being W.P.(C) No. 2474/10 before this court. This court vide its order dated 14.06.2010 granted interim relief of status quo with respect to possession of the temple property.
5. By notice 05.07.2010, the appellant called in question the order passed by 2nd respondent. By reply dated 20.07.2010, the 3rd respondent denied the sole ownership and management of appellant over temple property.
6. The Writ Petition filed by the appellant was withdrawn on 27.08.2010 with liberty to avail appropriate remedy. This court extended interim relief granted earlier for a further period of two weeks.
7. The appellant preferred a Civil Suit against the respondents claiming relief of declaration and injunction; also filed an application for temporary injunction.
8. According to the appellant, he is in possession and management of temple property which is a private trust; his parents had established the temple 70 years ago and since then appellant's family is continuously in possession/management of the temple and temple property, and are its owner. The source of maintenance of appellant's family is offerings received during Puja. The State authorities have never raised any objection regarding maintenance/ possession/construction of the temple by appellant's family, therefore, the order of 2nd respondent registering the temple as public trust is illegal; has no right or authority to direct appellant to hand over possession of temple property to 3rd respondent. The respondents are putting pressure upon him with the help of police administration.
9. The trial court found prima-facie case in appellant's favour, but dismissed the application. The trial court held: on the basis of alleged agreement between the appellant and 3rd respondent in presence of 2nd respondent in Police Station, Kumhari, wherein it has been mentioned, "appellant and 3rd respondent both will jointly manage the affairs of temple property till decision of suit", on the date of suit the appellant alone was not in possession of the property in question.
10. Shri HB Agrawal, learned senior counsel appearing for the appellant would submit : the appellant and his family is in possession of the property since 70 years; the respondents have no right or title over it; the order of 2nd respondent registering the trust as public trust is without jurisdiction; direction given by 2nd respondent to appellant to hand over possession of temple property to 3rd respondent is without authority of law; this court, by way of interim relief, saved the appellant's possession and compromise obtained in the Police Station in presence of State authorities is of no consequence; the appellant is still in peaceful possession and management of the temple property, and in view of above circumstances, the court below has erred in dismissing the appellant's application for grant of temporary injunction and therefore the appeal deserves to be allowed.
11. On the other hand, Shri BP Sharma, learned counsel appearing for 3rd respondent, by referring the order of 2nd respondent and evidence adduced before him, would submit: by no stretch of imagination it can be said that the nature of trust is private trust. Evidence recorded before the 2nd respondent would reveal the temple was constructed with the aid and help of public, the public at large have been regularly worshiping in the temple as a matter of course and they can also take part in festivals and ceremonies continuously in the temple as a matter of right and the offerings are being made by the public in the usual course. In the above circumstances, it is also safe to presume that temple in question is a public temple. In support of his contention reliance has been placed upon the judgment of Supreme Court in case of Goswami Shri Mahalaxmi Vahuji v. Ranchhoddas Kalidas and others1.
12. Shri Sharma further submits that vide compromise dated 06.10.2010, both the parties are in possession and management of the property; receipt of Jyoti Kalash are being issued in the name of public trust registered by 2nd respondent; 3rd respondent is properly maintaining the accounts; the appellant is as usual working as a Pujari; Donation Slips are being issued by 3rd respondent and in such circumstances, the appellant alone not being in possession of the temple property, the trial court has rightly dismissed the application filed by the appellant and has rightly refused to grant temporary injunction in appellant's favour.
He would further submit, to avoid mismanagement of temple property, it is necessary it be managed by a registered body, inasmuch as, registered body can manage the temple more effectively and in a better way.
13. I have heard the counsel appearing for the parties, peruse the order impugned and records of court below.
14. It is not in dispute, before registration of public trust vide order dated 03.05.10 passed by the 2nd respondent, the appellant was in management and possession of the temple property. During registration proceedings, the appellant raised objections; filed a writ petition and obtained status quo order and then filed instant suit.
15. Undisputedly, the appellant is not a trespasser. The respondents have not taken any legal steps in order to obtain possession of temple property or for removal of appellant from its management. Merely a new trust is registered as public trust with respect to property in question, the respondents have no right to interfere in appellant's possession.
16. Even if the respondent proceeded on the footing that the trust was a public trust, it should have been taken appropriate legal action for getting its possession. Merely registration of trust as public trust will not authorize 2nd respondent to direct appellant to hand over possession in favour of such trust. The State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorizes their acts. The executive action taken in this case by the State and its officers was destructive of the basic principle of rule of law.
17. In almost similar situation, the Supreme Court in case of Bishan Das & others v. State of Punjab & others2 has held : the State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorizes their acts, and further observed in paras 11,13 & 14 as under:
"11. We consider that both these contentions are unsound and the petitioners have made out a clear case of the violation of their fundamental rights. There has been some argument before us as to the true legal effect of the sanction granted in 1909 to Ramji Das subject to the conditions adverted to earlier: whether it was a lease in favour of the firm Faquir Chand Bhagwan Das; whether it was a licence coupled with a grant or an irrevocable licence within the meaning of Section 60(b) of the Easements Act, 1882. These are disputed questions which we do not think that we are called upon to decide in the present proceeding. The admitted position, so far as the present proceeding is concerned, is that the land belonged to the State; with the permission of the State Ramji Das, on behalf of the joint family firm of Faquir Chand Bhagwan Das, built the dharmasala, temple and shops and managed the same during his life time. After his death the petitioners, other members of the joint family, continued the management. On this admitted position the petitioners cannot be held to be trespassers in respect of the dharmasala, temple and shops; nor can it be held that the dharmasala, temple and shops belonged to the State, irrespective of the question whether the trust created was of a public or private nature. A trustee even of a public trust can be removed only by procedure known to law. He cannot be removed by an executive, fiat. It is by now well settled that the maxim, what is annexed to the soil goes with the soil, has not been accepted as an absolute rule of law of this country; see Thakoor Chunder Parmanick v. Ramdhone Bhuttacharjee; Beni Ram v. Kundan Lall and Narayan Das Khettry v. Jatindranath. These decisions show that a person who bona fide puts up constructions on land belonging to others with their permission would not be a trespasser, nor would the buildings so constructed vest in the owner of the land by the application of the maxim quicquid plantatur solo, solo cedit. It is, therefore, impossible to hold that in respect of the dharmasala, temples and shops, the State has acquired any rights whatsoever merely by reason of their being on the land belonging to the State. If the State thought that the constructions should be removed or that the condition as to resumption of the land should he invoked, it was open to the State to take appropriate legal action for the purpose. Even if the State proceeded on the footing that the trust was a public trust it should have taken appropriate legal action for the removal of the trustee as was opined by the State's Legal Remembrancer. It is well recognised that a suit under Section 92 of the Civil Procedure Code, may be brought against persons in possession of the trust property even if they claim adversely to the trust, that is, claim to be owners of the property, or against persons who deny the validity of the trust.
13. As to the second argument, it is enough to say that it is unnecessary in this case to determine any disputed questions of fact or even to determine what precise right the petitioners obtained by the sanction granted to their firm in 1909. It is enough to say that they are bona fide in possession of the constructions in question and could not be removed except under authority of law. The respondents clearly violated their fundamental rights by depriving them of possession of the dharmasala by executive orders. Those orders must be quashed and the respondents must now be restrained from interfering with the petitioners in the management of the dharmasala, temple and shops. A writ will now issue accordingly.
14. Before we part with this case, we feel it our duty to say that the executive action taken in this case by the State and its officers is destructive of the basic principle of the rule of law. The facts and the position in law thus clearly are (1) that the buildings constructed on this piece of Government land did not belong to Government, (2) that the petitioners were in possession and occupation of the buildings and (3) that by virtue of enactments binding on the Government, the petitioners could be dispossessed, if at all, only in pursuance of a decree of a Civil Court obtained in proceedings properly initiated. In these circumstances the action of the Government in taking the law into their hands and dispossessing the petitioners by the display of force, exhibits a callous disregard of the normal requirements of the rule of law apart from what might legitimately and reasonably be expected from a Government functioning in a society governed by a Constitution which guarantees to its citizens against arbitrary invasion by the executive of peaceful possession of property. As pointed out by this Court in Wazir Chand v. State of Himachal Pradesh, the State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts. In Ram Prasad Narayan Sahi v.
State of Bihar this Court said that nothing is more likely to drain the vitality from the rule of law than legislation which singles out a particular individual from his fellow subjects and visits him with a disability which is not imposed upon the others. We have here a highly discriminatory and autocratic act which deprives a person of the possession of property without reference to any law or legal authority. Even if the property was trust property it is difficult to see how the Municipal Committee, Barnala, can step in as trustee on an executive determination only. The reasons given for this extraordinary action are, to quote what we said in Sahi5 case, remarkable for their disturbing implications.
18. The Supreme Court has further held in case of Meghmala and others v. G. Narasimha Reddy and others3 :
illegal forcible eviction from land even by Government by executive order is not permissible.
19. The trial court itself found prima-facie case in appellant's favour. The respondents cannot be permitted to interfere in his possession without taking recourse of law.
20. Considering the above facts and the fact that this court in W.P.(C) No. 2474/10 had granted status quo order in appellant's favor and also this court vide its order dated 23.11.2010 granted status quo order in respect of possession of temple property in appellant's favour, in the considered opinion of this court, the appeal deserves to be and is hereby allowed.
21. The parties are directed to maintain status quo with regard to possession of the suit property as it obtains on 14.06.2010. However, in the interest of justice, the appellant is directed to maintain proper accounts of receipts of offerings and gifts and sent a copy of same to the 2nd respondent once in a month till decision of the suit.
22. Looking to the controversy, it is expected that the trial court shall decide the suit expeditiously without being influenced by any of the observations made hereinabove. No order asto costs.
] Judge