Andhra HC (Pre-Telangana)
State Of A.P. And Anr. vs Desodharaka Kasinadhuni Nageswara Rao ... on 18 November, 2002
Equivalent citations: 2003(1)ALD232, 2003(3)ALT770
JUDGMENT V.V.S. Rao, J.
1. The miscellaneous application filed by the respondent in the Civil Miscellaneous Appeal is listed for hearing. Learned Counsel for the appellants and the learned Counsel for the respondent requested this Court to dispose of the main appeal itself finally and hence, arguments were heard. The matter was taken up for final disposal.
2. The State of Andhra Pradesh represented by the District Collector, Krishna and the Principal, Government Manila Polytechnic College, Nandigama are the appellants. They filed this appeal under Order XLIII, Rule 1 of the Code of Civil Procedure, 1908 impugning the order dated 27-6-2002 in I.A. No. 223 of 2002 in OS No. 30 of 2002 on the file of the Court of Senior Civil Judge, Nandigama. By the impugned order, the appellants herein, their men and agents have been restrained from interfering with Item-Ill of plaint schedule property including making any constructions thereon.
3. The respondent - Desodharaka Kasinadhuni Nageswar Rao Thota, a Trust represented by its present President Sri Vasanta Nageswara Rao filed a suit alleging that in the year 1942 Sri Iyyadevara Kaleswararao, a native of Nandigama, created a Trust and gifted an extent of Acs.4.00 in Sy. No. 545 of Nandigama naming the Trust as Desodharaka Kasinadhuni Nageswara Rao Thota. The trust deed dated 2-4-1942 was registered. The Settlor also nominated five persons as Trustees duly indicating the method and manner of appointing trustees in future within three months from the date of falling of vacancy, failing which, the President of the Andhra State Congress Committee can appoint any Congressman as a Trustee. The income out of the trust property is to be used for the activities of Nandigama Taluk Congress Committee and West Krishna Congress Committee, for Khadi and Cottage Industries, welfare of Harijans, development of Telugu Literature, adult literacy, social co-operation and also for other constructive activities for the welfare of the society. It was alleged that on 12-3-1993 defendant No. 5-Marreddi Rama Reddy and Kasthala Uma Maheswara Rao (not a party to the suit) executed a registered gift deed in respect of an extent of Acs.0.15 out of the trust property in favour of the Superintendent of Police, Krishna District, Machilipatnam -second defendant in the suit - which is against trust deed. Defendants 6 and 7, namely Turlapati Mahabaleswara Rao and Turiapati Venkata Sasikaladhara Rao respectively, executed a registered gift deed dated 27-9-2001 donating an extent of Acs.0.50 to the Government of Andhra Pradesh. The two properties, which were gifted in the years 1993 and 2001, were shown as Items II and III of the plaint schedule property. It was alleged that defendants 5 to 7 acted without any authority or right to donate the property contrary to the objects of the trust. It was also alleged that the appellants/defendants 3 and 4 are commencing construction work in Item III of the plaint schedule property and if the construction is permitted, it will lead to several consequences and multiplicity of proceedings. Therefore, they have sought for a declaration that the gift deed executed on 12-3-1993 by the fifth defendant and the gift deed dated 27-9-2001 executed by defendants 6 and 7 are not binding on the plaintiff-Trust and for recovery of possession of Items II and III of the plaint schedule property by evicting defendants 1 to 4 therefrom. Along with the suit an application under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, 1908 was filed praying for ad interim injunction restraining defendants 3 and 4 from making any further constructions.
4. The suit was filed initially on the file of the Vacation Judge, Krishna District as O.S. No. 11 of 2002. In LA. No. 32 of 2002 the learned Vacation Judge ordered status quo on 13-5-2002. Later, the matter was transferred to the Court of Senior Civil Judge, Nandigama. The suit was renumbered as O.S.30 of 2002 and the LA. was re-numbered as I.A.223 of 2002. Defendant No. 4/respondent No. 2 in the LA., who is the appellant No. 2 herein, filed a counter-affidavit, which was adopted by the third defendant/respondent No. 1. in the LA. and appellant No. 1 herein. The allegation that the Trustees have no manner of right to gift the property was also denied. It was further alleged that the present body came into existence on 21-3-2002 and the gift deeds were executed on 12-3-1993 and 27-9-2001 and that the President of the Trust was never in possession of the property. It was stated that after the execution of the gift deed, the appellants took possession of the land and cleared the land with proclainer as it was full of thorny bushes and thickets incurring huge expenditure. The State Government took possession of the land under a gift deed for construction of a Polytechnic College to impart training to rural youth under the Community Polytechnic Scheme of the Government of India in the Ministry of Human Resources. The total estimated cost of construction of permanent building is Rs. 25.00 lakhs. The District Collector, Krishna, released Rs. 21.00 lakhs and Rs. 4.00 lakhs were released by the Government of India. After obtaining the administrative sanction from the Commissioner of Technical Education, Government of Andhra Pradesh, tenders were called for on 17-3-2002 and they were opened on 4-4-2002. The work for construction of permanent buildings was entrusted to the approved Contractor and the work is in progress. It was also stated that the aim of the scheme is to impart training to improve the skill among the rural youth for improving their standard of living and making them self-employed and therefore, the activity undertaken on the gifted property would satisfy the wish and desire of the original donor. It was also alleged that the gift deed was challenged in W.P. No. 7350 of 2002 and this Court disposed of the same giving liberty to the petitioner therein to approach the registering authorities and pursue the matter. It was also alleged that the construction work is in progress and if it is stopped it will cause dislocation to the schedule of training for the year.
5. The plaintiff-petitioner (respondent herein) marked Exs.A1 to A6 and defendants 3 and 4 (appellants herein) marked Exs.B1 to B15. Ex.A1 is the certified copy of the registered Trust deed dated 2-4-1942 and Exs.A2 and A3 are gift deeds in favour of the Superintendent of Police, Krishna District and Government of Andhra Pradesh respectively, Ex.A4 is the copy of the letter issued by the Andhra Pradesh Congress Committee to the President of Krishna District Congress Committee informing the appointment of Trust Board to look after the property comprised in Sy. No. 545 of Nandigama. The defendants 3 and 4 filed the relevant correspondence between various departments and authorities, which were marked as Exs.B8 to B11, B14 and B15 to show that pursuant to the gift deed Ex.A3, the Government has proceeded with the construction of buildings for starting Community Polytechnic Scheme. The learned trial Judge came to the conclusion that the validity of Exs.A2 and A3 executed by the Trustees at the relevant time cannot be gone into in the interlocutory proceedings. However, the learned Judge recorded a finding that there is no clause in the trust deed - Ex.A1 - permitting the Trustees to alienate the property and, therefore, the respondent-plaintiff has a strong prima facie case. The trial Judge also came to a conclusion that if the interim injunction is not granted and the appellants are allowed to make constructions in the schedule premises, the same will cause irreparable loss to the petitioner-Trust (respondent herein) and, therefore, granted ad interim injunction in favour of plaintiff.
6. In this appeal, Sri Ramesh Ranganathan, the learned Additional Advocate General, appearing for the appellants contends that though the trust was created in the year 1942 for certain objectives inter alia taking up the adult education programmes and constructive programmes, the land was kept vacant and no activities were taken. In 1993 when the fifth defendant and another trustee executed Ex.A2 gift deed, a Police Station was constructed by the Superintendent of Police, Krishna District. An extent of Acs.0.50 was gifted to the Government by defendants 6 and 7 to enable the Government to take up the Community Polytechnic Scheme, which is a public purpose. When the land is gifted for a public purpose to the Government, the same is not rendered void or nullity as per the terms of the trust deed-Ex.A1. He further submits that defendants 6 and 7, the donors under Ex.A3 gift deed were not made parties to LA. No. 223 of 2002 and, therefore, the learned trial Judge went wrong in observing that defendants 6 and 7 have not filed any documents showing that they were the members of the trust. Referring to Ex.A1 trust deed, he submits that it is always permissible for trustees to utilise the land for any public purpose and taking up the Community Polytechnic Scheme/College is a public purpose. On the point of balance of convenience, the learned Additional Advocate General submits that under Ex.A3, the land was gifted on 27-9-2001 and after completing all the necessary administrative formalities, the appellants started construction and the same is in advanced stage. The respondent-plaintiff was allegedly appointed as a Trustee on 21-3-2002 and, therefore, the balance of convenience is not in favour of the respondent. He also submits that a Polytechnic College is coming up on the disputed land and it was always open to the Government to acquire the land in case the suit is decreed. If the appellants are restrained from proceeding further, it would lead to hardship, in that, the very schedule of starting training under Community Polytechnic Scheme would be defeated.
7. Per contra, the learned Counsel for the respondent-plaintiff Sri B. Narasimha Sarma, submits that Ex.A1 trust deed prohibits alienation of land by the trustees and, therefore, Ex.A2 and A3 gift deeds executed by defendants 5 to 7 in favour of defendants 3 and 4 are void. The construction of a Polytechnic Institute/College under a Central Government Scheme is not and does not fall within the objects for which the trust deed was executed. The respondent-plaintiff has a strong prima facie case. The learned Counsel further submits that the land was gifted to the Trust under Ex.A1 by late lyyadevara Kaleswara Rao for conducting public meetings and taking up other activities and if the construction is allowed, that will curtail the activities of the trust. Placing reliance on the judgment of the Supreme Court in Sri Agasthyar Trust v. C.I.T. , he submits that any activity taken up by the trustees or others contrary to the object of the Trust would be illegal. He also refers to Sections 11 to 15 of the Indian Trusts Act, 1882 in support of the submission that the trustees are required to protect the property of the trust and no trustee can act contrary to the intention of settlor.
8. In view of the rival submissions, the point that arises for consideration is whether the respondent/plaintiff has any prima facie case and balance of convenience to grant ad interim injunction under Order XXXIX Rules 1 and 2 of the Civil Procedure Code. 1908?
9. Late Sri lyyadevara Kaleswara Rao executed a registered gift deed dated 2-4-1942. He was a staunch Congressman and, therefore, he created a trust in memory of Desodharaka Kasinadhuni Nageswara Rao and desired a Trust to be called Nageswara Rao Thota. He wished that the property in an extent of Acs.4.00 comprised in Sy. No. 545 of Nandigama be used for the purpose of various activities of Nandigama Taluk Congress Committee and West Krishna District Congress Committee and other such activities, for the purpose of Khadi and Village Industries, Harijan seva activities, improvement of Telugu Literature, adult literacy and other constructive activities. The settlor under Ex.A1 also ordained that the property cannot be transferred to others. Ex.A1 nowhere prohibits utilising the land for other constructive activities. It is the admitted case that since 1942 the trustees did not utilise the land for any other purpose nor did they derive any money by utilising the land. It was only when the 5th defendant executed a registered gift deed acting on behalf of the Trust that a Police Station was constructed. Nobody objected at that time. Even when Ex.A3 gift deed was executed in favour of the third defendant i.e., State of Andhra Pradesh nobody raised any objection. Purportedly acting under Ex.A1 trust deed, Andhra Pradesh Congress Committee appointed a new Trust Board on 21-3-2002 under Ex.A4. It is only after the new trustees came into existence, objections were raised regarding the gift deeds executed by trustees. At this juncture, it is necessary to refer to Ex.A3 gift deed executed by defendants 6 and 7, who are not made parties to I.A. No. 223 of 2002.
10. Under Ex.A3 an extent of Ac.0.50 was donated to the Stale Government. Defendants 6 and 7 acting for and on behalf of the Trust gifted the property without any consideration and handed over possession on the same day i.e., 27-9-2001. It is interesting to note that under Ex.A3, defendants 6 and 7 stated that Nageswara Rao Thota Trust has no other property and that there is no annual income or there is no opportunity of getting any income out of the said land and, therefore, the land is being gifted to the State of Andhra Pradesh for Community Polytechnic Scheme under which buildings would be constructed for the purpose of adult literacy, Technical Education and other activities of public interest permanently. Reading Exs.A1 and A3 together, I am not able to agree with the submissions of the learned Counsel for the respondent-plaintiff that the land is being utilised for a purpose, which is totally for a different purpose not intended under Ex.A1 trust deed. The decision in Sri Agasthyar Trust case (supra) does not assist the learned Counsel for the respondent-plaintiff. In that case, the Apex Court observed as under:
".................No power was given to the trustee to amend, alter, vary or change in any manner the objects of the Trust as created in 1941. The result of this is that neither the trustee nor the founders could bring about any change in the objects of the Trust as set out in their partnership deed dated 28-11-1941. This being so, the document dated 1-7-1944 executed by the trustee was clearly without any authority and was non-est. He had no right or jurisdiction to execute the document on 1-7-1944 which in effect changed the objects of the Trust radically and in fact converted what was meant to be a public charitable trust to a non-charitable trust as held by this Court in East India Industries case Ex.A3 gift deed prima facie does not in any way offend the objectives for which Ex.A1 trust deed was executed and it can be said, Ex.A3 is meant for a private and uncharitable purpose. As held by the Supreme Court in Unnikrishnan v. State of Andhra Pradesh, , any activity of education is a charitable purpose.
11. On the questions whether Exs.A2 and A3 are validly executed and whether the trustees had any such power to donate the property for others, the learned trial Judge rightly came to the conclusion that the validity or otherwise of Exs.A2 and A3 cannot be gone into at interlocutory stage and the decision thereon has to await the trial of the suit. Therefore, the submission of the learned Counsel for the respondent-plaintiff that Exs.A2 and A3 were null and void does not commend itself to this Court in the interlocutory proceedings. Prima facie also having regard to the trust deed-Ex.A1 - I am not able to agree with the submission of the learned Counsel for the respondent.
12. The law regarding ad interim injunctions is well settled. It is not necessary to refer to copious case law. In Dalpat Kumar v. Prahlad Singh, , the Supreme Court considered this aspect of the matter. It was held:
"Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is "a prima facie case" in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima fade case is not to be confused with prima fade title which has to be established, on evidence at the trial. Only prima fade case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that noninterference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.
It was further observed thus:
........ The High Court without adverting to any of these material circumstances held that balance of convenience lies in favour of granting injunction with the following observations "keeping in mind the history, various facts which have been brought to my notice, and looking to the balance of convenience and irreparable loss, I think it will be in the interest of justice to allow these appeals and grant temporary injunction that the appellants may not be dispossessed from the suit property". The phrases "prima facie case"; "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. ...
13. In a recent judgment reported in Hindustan Petroleum Corporation Limited v. Sriman Narayan, , the Supreme Court reiterated the principles as follows:
"It is elementary that grant of an interlocutory injunction during the pendency of the legal proceeding is a matter requiring the exercise of discretion of the Court. While exercising the discretion the Court normally applies the following tests:
(i) whether the plaintiff has a prima facie case;
(ii) whether the balance of convenience is in favour of the plaintiff; and
(iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed.....
The decision whether or not to grant an interlocutory injunction has to be taken at a time when the exercise of the legal right asserted by the plaintiff and its alleged violation are both contested and remain uncertain till they are established on evidence at the trial. The relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before which that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such projection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine where the 'balance of convenience' lies."
14. The plaintiff must plead and prove prima facie case, balance of convenience and hardship - the conditions precedent for grant of ad interim injunction. The mere satisfaction of existence of prima facie case is not sufficient to grant ad interim injunction. In the instant case, it is strenuously contended that Exs.A2 and A3 gift deeds executed by defendants 5 to 7 are beyond the authority of the trustees and are not binding on the plaintiff-Trust. The trial Court rightly observed that the validity of Exs.A2 and A3 cannot be gone into at the interlocutory stage. Except making an observation that Ex.A1 trust deed admits interpretations more than one, this Court also declines to record any finding on the question raised by Sri B. Narasimha Sarma, the learned Counsel for the respondents that defendants 5 to 7, who are not parties to the Interlocutory Application or this appeal do not have any power or authority to alienate the property. Further, it is also doubtful whether a gift by the trustees in favour of the Government or any other philanthropic organisation for undertaking charitable, philanthropic and/or social welfare activities in tune with the policies of the welfare Government is also prohibited under the terms of the trust deed. This aspect of the lis has to be considered at the trial.
15. The power to grant or not to grant ad interim injunction is purely within the discretion of the Court. Even if the prima facie case is made out, but still as held by the Apex Court in Dalpat Kumar case (supra) and Hindustan Petroleum Corporation Limited case (supra), the Court must weigh the need of the plaintiff against the need of the defendants/respondents and if the injury suffered by the plaintiff by violation of its right can be adequately compensated in damages by awarding the money, the need of the plaintiff would be outweighed by the corresponding need of the defendant to be protected against the injury, hardship and prejudice, which results, if the defendant is prevented from exercising his own legal rights, which cannot be compensated.
16. It is not denied that defendants 6 and 7 executed registered gift deed - Ex.A3 -in favour of the appellants for construction of a building for Community Polytechnic Scheme of the Government of India. It is also not denied that the construction is in advanced stage. Indeed in paragraph 9 of the plaint, the plaintiff admitted that the defendants 3 and 4/appellants herein are commencing construction work in Item III of the plaint schedule property. Therefore, the need of the appellants to proceed with the construction for undertaking Community Polytechnic Scheme outweighs the need of the plaintiff to protect the land. Further, as disclosed in the counter-affidavit filed in I.A. No. 223 of 2002 it is stated that after obtaining the necessary administrative sanction tenders were called for, that the work is entrusted to the approved Contractor and that if the construction is stopped, it would derail the schedule of training programme. These were not denied either before the trial Court or before this Court. Be it also noted that the gift in favour of the Superintendent of Police - 5th defendant -under Ex.A2 was only challenged after a period of about a decade and there is no denial of the fact that since 1942 the trustees never put the land to any use. The learned Counsel for the respondent-plaintiff is not able to say that at any time during the last 60 years, the respondent-plaintiff carried on any activities on Acs. 4.00 of land nor any money was earned by putting the land to use. As already noticed, in Ex.A3 defendants 6 and 7 stated that the land has been kept barren and no income was derived therefrom. Now the State Government has come forward for construction of a building to undertake Community Polytechnic Scheme of Government of India. Therefore, these factors must tilt to the balance of convenience in favour of the appellants/defendants 3 and 4.
17. Learned Counsel for the respondent submits that the suit was filed before the Vacation Judge on 13-5-2002 and since that date till 27-6-2002 there was status quo order and thereafter by reason of the impugned order, there was ad interim injunction subsisting in favour of the plaintiff, which was suspended by this Court on 10-10-2002. Therefore, he would urge that the appellants may maintain status quo and the trial Court may be directed to complete the trial and dispose of the suit expeditiously. He also submits that the principle of denying the ad interim injunction if the plaintiff can be compensated by way of damages has no application when the trust property is involved. I am afraid, I cannot accept these submissions. The concession made by the plaintiff that he is willing to proceed with the expeditious disposal of the suit is no ground for ordering ad interim injunction or status quo, if the same does not satisfy the principles of granting ad interim injunction. Likewise, his submission that when the trust property is involved, the adequate compensation by way of damages is not appropriate, cannot be accepted.
18. Learned Additional Advocate-1 General rightly submits that an extent of Acs.0.50 has been utilised for construction of the building for Community Polytechnic Scheme/College and in the event of the suit being decreed, it is always open to the State to acquire the land in exercise of its sovereign power of eminent domain. There is force in this submission. There is no law, which prohibits the State from acquiring the land belonging to the Trusts. Therefore, even in the event of the plaintiff succeeding, it is always open to the Government to acquire the land. On the other hand, if the construction is restrained by granting an injunction, it would certainly cause prejudice and hardship to the State Government, who have drawn funds from the Central Government. If the construction is not completed as per the schedule, the funds are likely to lapse and the Scheme itself would be shelved.
19. In the result and for the above reasons, the Civil Miscellaneous Appeal is allowed and the order and decretal order dated 27-6-2002 passed in I.A. No. 223 of 2002 in O.S. No. 30 of 2002 on the file of the Court of Senior Civil Judge, Nandigama are set aside and LA. No. 223 of 2002 stands dismissed. There shall be no order as to costs.