Bheekam Chandra vs State Of U.P. And Others
2012 Latest Caselaw 1409 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 
Reserved/Court No. 32
 

 
Case :- WRIT - C No. - 47993 of 2010
 

 
Petitioner :- Bheekam Chandra
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- M.K. Gupta,Ashok Trivedi
 
Respondent Counsel :- C.S.C.,Anil Kr. Shukla,B.B. Paul,D.D. Chauhan
 

 

 
Hon'ble Ashok Bhushan,J.

Hon'ble Prakash Krishna,J.

(Delivered by Prakash Krishna,J)

The petiioner Bheekam Chandra who has been in settled possession of the property in question for the last 50 years, earlier his father and after his death he came in possession has been dispossessed without recourse to any legal proceedings, by the Sub Divisional Magistrate (Sasni) who acted in the light of the order passed by the District Magistrate and the District Magistrate at the instance of a local MLA namely Shri Genda Lal Chaudhary, without recourse to any legal, quasi legal or to even summary proceedings, exparte, arbitrary and whimsical.

Khasra No. 40 situate in Bijahari Tehsil Sasni District Hathras (Mahamaya Nagar), later converted as Plot No.40/2 and 27 is the subject matter of the present writ petition. A temple, dharamshala and 20 shops are there on the said plot.

Indisputably, Smt. Kishani Kunwar, the then Zamindar established a temple of Jawala Ji Maharani on the said plot, owned by her. She maintained the temple during her life time. She died in the year 1950-51 without leaving any issue. Shri Devi Prasad father of the petitioner claimed himself as nephew of Smt.Kishani Kunwar started managing the temple after death of Smt. Kishani Kunwar. He also died in the month of May 2007. The petitioner claims that thereafter he is managing the temple, dharamshala and 20 shops after death of his father and claims to be in continuous possession of the temple, dharamshala and shops. Proceedings under section 122-B for

eviction of unauthorised occupation over Gaon Sabha property, under U.P.Zamindari Abolition & Land Reforms Act were initiated against Devi Prasad. The said proceeding was dropped by the order dated 29.9.1975 in favour of Devi Prasad. The order dated 29.9.1975 was passed by the Assistant Collector, Hathras. In paragraph-14 of the writ petition, it has been stated that against one of the tenants of the shop built on the land of the temple, Devi Prasad had initiated eviction proceedings, as Manager and Landlord. The said proceedings came up to this Court in writ petition no. 28314 of 1995 at the instance of tenant Ram Swaroop. This also shows, the possession of Devi Prasad over the property in dispute. According to the petitioner, the property was never vested in Gaon Sabha after abolition of Zamindari in the State of U.P.

The dispute giving rise to the present writ petition started on the basis of a letter dated 19.3.2010 (annexure-12 to the writ petition) written by one Shri Genda Lal Chaudhary, a sitting Member of Legislative Assembly of the ruling party, to the District Magistrate stating that Plot No. 27 is recorded as Gaon Sabha property on which son of Devi Prasad, the petitioner and daughter Geeta Devi are in unauthorised occupation and they have forged a Will in their favour. It was requested that the Criminal Case against the unauthorised occupants be registered and proceedings as permissible under law be initiated. The District Magistrate on 27.3.2010 forwarded the letter of the MLA to the Sub Divisional Officer with the remarks that after making necessary inquiry and after hearing the complainant and Raj Pal Singh Dishwar, Advocate necessary action be taken. On 13.4.2010 a FIR was lodged by the Lekh Pal of the area against the petitioner and Smt.Geeta Devi under section 3/5 of the Prevention of Damages to Public Property Act 1984 and Sections 406,409,420, 367 and 468 of I.P.C. It was registered as Case Crime No. 113 of 2010. A Criminal misc. writ petition being Writ Petition No. 6383 of 2010 was filed by the petitioner and another for staying the arrest of the petitioner in the aforesaid Case Crime No.113 of 2010 wherein this Court on 20.4.2010 stayed the arrest of the petitioner.

Thereafter, on 26.5.2010 an application was filed before the Sub Divisional Officer by the respondent no. 7 requesting that on Plot No.27 Adminstrator be appointed. The Sub Divisional Officer on the same day i.e on 26.5.2010 directed the Tahsildar/Station House Offcier to remove the petitioner by police force and possession be handed over to respondent no. 7.

The petitioner filed a suit in the Civil Court being Suit No. 353 of 2010 on 4th June 2010 praying for decree for declaration that he may be delcared owner of the property situate in Plot No. 27 (Old No.40/2) along with 20 shops and also prayed for a permanent injunction restraining the defendants from interfereing in possession of the petitioner. It appears that no temporary injunction order was passed in the suit which led the filing of the writ petition being Writ Petition No.36058 of 2010 before this Court. The court observed that the petitioner may seek his appropriate remedy against the order of the Trial Court refusing to grant the interim injunction before the civil court and the writ petition was dismissed on 21.6.2010.

Further it has been avered (in the writ petition) that on 18.6.2010, the petitioner received a caveat appilcation from respondent no. 7 making the reference of order dated 26.5.2010 and taking possession on 11.6.2010. The petitioner was not aware about any such order or taking of possesson and therefore, he filed an application under the Right to Information Act, 2005 praying for giving copies of the order and the proceedings. He could get the relevant documents from the Sub Divisional Officer on the direction of the District Magistrate only. The petitioner came to know that the Sub Divisional Officer had issued notice dated 10.5.2010 which was never served on him. He also came to know about the order dated 26.5.2010 and of the possession memo dated 11.6.2010. These documents were made available to him on 6.7.2010. Thereafter he filed the present writ pettion stating that he had no knowledge about the proceedings if any, before the Sub Divisional Officer and has sought the following reliefs in the present writ petition.

"1. To issue a writ, order or direction in the nature of Certiorari to quash the Impugned order dated 26.5.2010 (Anenxure No. 18) passed by Sub Divisional Magistrate, Tahsil Sasni, District Mahamaya Nagar along with Impugned Possession Report dt.11.6.2010 (Annexure No.19) submitted by Lekhpal to the S.D.M and the Impugned Possession Report dt.14.6.2010 (Annexure no.20) submitted by Tahsildar to the S.D.M.

ii) To issue a writ, order or direction in the nature of mandamus directing the respondents to maintain status quo in respect of the above mentioned entire temple property including the shops by removing the Locks of Respondent No. 7 or of any other authority or Respondents and removing all effect showing symbolic possesson of any of the Respondent in respect of the Temple and its entire property including the 20 shops of it.

iii) To issue a writ, order or direction in the nature of Mandamus directing the respondents to pay compenston/damages for his deliberate illegal activity of dispossessing the petitioner without any authority of law under the sole aim and conspiracy by the private Respondents with the help of Govt.Officials to grab the valuable property in question."

Disputing the allegations made in the writ petition, the respondents have filed counter affidavits separately. They have also filed supplementary counter affidavits. The respondent nos. 2, 3 & 4 have filed separate counter affidavit. The respondent no. 5 has also filed a separate counter affidavit. In the counter affidavits similar pleas have been raised. The case is that after the death of Devi Prasad on 13.5.2007, no new Manager was appointed. The petitioner started claiming his right on the basis of a Will in his favour and prevented the villagers to perform puja etc. Then the Pradhan filed an application before the District Magistrate on 27.3.2010 for taking action in the matter. It has been further pleaded that the property in dispute is Gaon Sabha property. It is part of the abadi and the temple, dharamshaal and shops situate on the disputed plot belongs to the Gaon Sabha. The said temple is public temple wherein the villagers used to perform puja etc. Smt. Kishani Kunwar was Zamindar who died issueless on October 1950 and after her death, the property vested in Gaon Sabha. Shri Devi Prasad was orally appointed as Pujari by the Gaon Sabha. After his death, another pujari has been appointed. The land in dispute was brought under consolidation operation in the year 1962 and in the consolidation operation, it was recorded in the name of the Temple. Reference has been made to Civil Suit being Suit No. 36/80 wherein Shri Devi Prasad, the Late pujari was examined as D.W.1 who has admitted the family settlement among the family members of Smt.Kishani Kunwar wherein he has got Kothi of Bijahari. It has been further stated that the Plaintiff Om Prakash Paliwal in the above suit has admitted that the Mandir and Dharamshala is property of the trust. Pujari Devi Prasad was appointed as Manager by the Land Management Committee. He had filed a Civil Suit being Suit No. 154 of 1981 in the Court of Munsif Hathras (Mahamaya Nagar) as manager of Jwala Ji Maharani Virajman Mandir Bijahari. The further allegation is that after death of pujari Devi Prasad on 13.5.2007, no new Manager was appointed by Land Management Committee. Some application was filed by the Petitioner for appointment as Pujari but he was not appointed as pujari on behalf of the Land Managment Committee. Now the Land Management Committee has appointed one Rajesh Sharma as Pujari and the Temple is in the control of the Land Management Committee.

The petitioner has filed rejoinder affidavit denying the allegations made in the counter affidavit and has come out with the case that the property in dispute never vested in the Gaon Sabha. It is not a public Temple and the Gaon Sabha or any of the respondents has nothing to do with it. The shops were constructed by Shri Devi Prasad and the tenants used to pay the rent to Shri Devi Prasad. Certain other allegations have been made which will be considered at the appropriate stage.

Shri M.K.Gupta, learned counsel for the petitioner submtis that the pettioner was in settled possession over the property in dispute earlier through his father Devi Prasad pujari and after his death he was in possession thereof. The respondents have illegaly dispossessed him without taking recourse to any procedure known to law. The proceedings were set to motion against him through the letter dated 19.3.2010 written by Shri Genda Lal Chaudhary to the District Magistrate. The said letter was forwarded by the District Magistrate to the Sub Divisional Officer for doing the needful. The Sub Divisional Magistrate allegedly issued a notice dated 10.5.2010 which was never served on the petitioner. The Sub Divisional Manager without there being any pending proceedings before him, on the application dated 26.5.2010 filed by Smt. Chandrawati, Pradhan for appointment of Administrator in a high handed manner ordered the Tahsildar and the Station House Officer, Sasni to evict the petitoiner with police force and hand over the possession of the property in question to Smt. Chandrawati, Pradhan. Consequently the petitioner was evicted, but without due course of law, abritrarily. The above proceedings were taken against him behind his back and such a procedure is not known to law. A person even if is trespasser who is in settled possession cannot be evicted in the manner in which the petitioner has been evicted. No case to adjudicate the rights of the parties was registered before any judicial quasi judicial authority against him. The petitioner has been in continued settled possession from the life time his father, for last more than 50 years over the property in question and has been receiving the rent from 20 shops situate in the Temple premises. The submisison is that the petitioner came to know of all these facts on 6.7.2010 when he received copies of the documents applied for under Right to Information Act.

In reply Shri Arvind Srivastava, appeared on behalf of the private respondents and Shri S.P.Kesarwani, learned Additional Chief Additional Counsel for the rest, were heard.

Shri Arvind Srivastava, learned counsel for the private respondents submits that the petitioner was not in settled possession and he was a rank trespasser and therefore no fault can be found in the impugned order. A notice was issued by the Sub Divisional Officer which was served on the petitioner by affixation. The petitioner chose not to appear before the Sub Divisional Officer to prove his title, was rightly evicted on 11.6.2010. Elaborating the arguments he submtited that the temple in question is public temple which vests in Gaon Sabha and petitioner has failed to establish his title over the property in question. In any view of the matter, the petitioner has already filed a Civil Suit which is pending before Civil Court and as such proper remedy for him to obtain the necessary orders for restoration of the possession or for injunction as he may be advised from the Civil Court and this Court should not entertain the present writ petition. Shri S.P.Kesarwani, learned Additional Chief Standing Counsel reiterated the similar submissions in his reply

Considered the respective submissions of the learned counsel for the parties and perused the record. The first and foremost question which arises for determination in the present writ petition is as to manner in which the petitioner has been dispossessed from the property in question, is justifiable under law or not. In other words the impugned order dated 26.5.2010 of Sub Divisional Magistrate on the application of Smt.Chandrawati, directing the eviction of the petitioner with the help of police force is justified under law or not. It is not in dispute that the temple was established by Smt. Kishani Kunwar. It is also not in dispute after the death of Smt.Kishani Kunwar, temple and the above properties were being managed by Shri Devi Prasad, father of the petitioner. In the counter affidavit, a dispute has been sought to be raised by the respondents that Devi Prasad was orally appointed as pujari by the Land Managment Committee. But in support thereof, no document has been annexed. Had it been so, the Land Management Committee/Gaon Sabha could have placed on record some document to show that they appointed Devi Prasad as pujari after death of Smt.Kishani Kunwar. The said plea could not be substantiated by the contesting respondents. On the other hand, the record shows that Shri Devi Prasad was managing and controlling the property in dispute as Manager and was receiving the rents etc. Even the document filed by the respondents would further show that Shri Devi Prasad was one of the legal representatives of Smt.Kishani Kunwar as he suceeded to the property left by Smt.Kishani Kunwar and was receiving annuity etc.

In the counter affidavit filed by Tahsildar, a copy of the statement of Shri Devi Prasad given in Original Suit No. 36 of 1980 has been annexed for the purposes that there was a family partition after death of Smt.Kishani Kunwar among the family members. The said statement is indicative of fact that Shri Devi Prasad got a share in the properties left by Smt Kishani Kunwar. According to his statement, there was partition with respect to some properties and the other properties of Smt. Kishani Kunwar were left out of partition. It follows that Shri Devi Prasad was not a stranger to Smt. Kishani Kunwar.

It is a common case of the respondents that after death of Kishani Kunwar, Shri Devi Prasad was managing the temple and the property in dispute, without hinderence by anybody.

There is nothing on record to show that the respondents who alleges that Shri Devi Prasad was appointed as pujari by Land Managment Committee ever took any account of the offerings of the temple or exercised any kind of control or supervision in respect of the property in question. The existence of temple, dharamshala and shops is not a matter of dispute between the parties. The settled possession of Shri Devi Prasad is further established from the fact that he was receiving the rent from the shopkeepers. There is no dispute that Devi Prasad was in unobstructed occupation of the disputed property, indisputably. He had initiated eviction proceedings against one of the tenants which came up to this Court in writ petition being Writ Petition No. 28314 of 1995 wherein Shri Devi Prasad claimed himself as a landlord of the shop situate in the temple premises at Khasra No. 27.

The other factor which clinches the issue with regard to settled possession is the initiation of proceedings by Gaon Sabha under section 122-B of U.P.Z.A & L.R Act. Section 122-B of U.P.Z.A& L.R Act empowers Gaon Sabha to initiate summary proceedings for eviction of an unauthorised occupation over Gaon Sabha property. Indisputably the proceedings were terminated/dropped ultimately in favour of Shri Devi Prasad holding that Devi Prasad is not an unauthorised occupant of Gaon Sabha property.

After the death of Devi Prasad, the petitioner being his son naturally came into its possession.

At this juncture the contentions of the respondents that they appointed one Shri Rajesh Sharma merits rejection. The allegations of appointment besides being vague, it lacks necessary details such as date of appointment, appointment letter if any, resolution of Land Management Committee/Gaon Sabha, etc.

There is no overt act on behalf of any respondents to show that after the death of Shri Devi Prasad, anyone of them exercised any right or resisted, or interfered, in the rights of the petitioner, who got the disputed plot through succession.

Now we consider the validity of the proceedings set to motion, which came into existence due to letter dated 19.3.2010 of Shri Genda Lal, M.L.A. The said letter is reproduced below:

fnukad %% 19-03-2010

ftykf/kdkjh

tuin egkek;k uxjA

d`0 layXu i= dk voyksdu djus dk d"V djs fd xzke iapk;r foJkgjh rglhy lkluh ds [kljk la[;k 27 {ks=Qy 0-058 gs0 fLFkfr xzke fotkgjh vfHkys[kks esa xzke lekt ntZ gS ftl ij nsoh izlkn iq= Hkhde pUnz o iq=h xhrk nsoh us voS/k dCtk dj j[kk o vius i{k esa QthZ olh;r Hkh djk j[kh gSA

vr% vkils vuqjks/k gS fd mDr voS/k dCtk /kkfj;ksa ds f[kykQ vfHk;ksx iathd`r djkdj dkuwuh dk;Zokgh djus dk d"V djsA

Hkonh;

xsnk yky

It follows from the above letter:

The letter is based on some application.

(i) stating plot no. 27 in the revenue record is recorded in the name of Gram Samaj.

(ii) Bheekam Chandra (petitioner) and his sister, are in unauthorised occupation thereof and

(iii)have set up a fabricated will in their favour.

The tone and tenor of the letter does not show that the petitioner is not in settled possession at least.

The District Magistrate very conveniently forwarded it to the Sub Divisional Magistrate who passed the order of eviction of the petitioner, on the mere asking of Smt.Chandrawati, respondent no.7. The impugned order dated 26.5.2010, reproduced below has been passed on the margin of the application.

Jheku miftykf/kdkjh egksn;k

rglhy lkluh

egksn;k fuosnu djuk gS fd izkfFkZ;k }kjk fnukad 27-03-2010 ,d izkFkZuk i= Jheku ftykf/kdkjh egksn; dks bl vk'k; dk fn;k x;k Fkk fd xzke iapk;r fctkgjh ds xkVk la0 27 jdck 0-058 gs0 ij HkhedpUnz ikyhoky o xhrk nsoh ikyhoky us voS/k :i ls dCtk dj j[kk gS ,oa mDr uEcj ij fLFkr 20 nqdkuks dh ,d jftLVMZ olh;r vius firk nsoh izlkn tks fd efUnj ds dfFkr iqtkjh Fks ls muds thoudky esa gh vius uke rgjhj djk yh gS ,oa mDr voS/k olh;r ds vk/kkj ij mDr yksx efUnj dh lEifRr dk fdjk;k olwy dj vius fuft gd esa iz;ksx dj jgs gSA mDr izkFkZuk i= dh tkWp ds ckn fnukad 13-04-2010 dks vkids vkns'kkuqlkj ys[kiky egksn; }kjk voS/k dCtk/kkfj;ksa ds fo:) Fkkuk lkluh esas vfHk;ksx iathd`r djkdj efUnj ifjlj ls voS/k dCtk/kkfj;ksa dks csn[ky dj fn;k x;k gSA xkVk la0 27 jdck 0-058 gs0 esa lkoZtfud efUnj] /keZ'kkyk LFkkfir gS ftldh lqj{kk laj{kk iwtk vpZuk] Hkksx izlkn ,oa j[kj[kko fd;k tkuk U;k;[email protected] esa ije vko';d gSA

vr% xkVk la0 27 jdck 0-058 gs0 fLFkr dksrokyh pkSjkgk fctkgjh ij LFkkfir lEifRr dk iz'kkld fu;qDr fd;s ls tkus dh d`ik djsa] ftlls dh efUnj esa iwtk ikB Hkksx vkfn dh O;oLFkk lqfuf'pr dh tk ldsA vki dh vfr d`ik gksxhA

izkfFkZ;k

fnukad& 26-05-2010

panzorh iz/kku

xzke lHkk fctkgjh

rglhy lkluh

tuin egkek;kuxj

The./SHO lk0

Police Force ysdj laifRr xzke lekt ls voS/k dCtk gVok,a o iz/kku tks fd insu Hkw0iz0la0 dk v/;{k gS] ds dCts esa nsuk lqfuf'pr djsa rkfd og laifRr xzke lekt dh ns[kjs[k dj lds rFkk xzke lekt laifRr dh lqj{kk dj ldsA

[email protected];

26-05-10

Impugned order dated 26.5.2010 is an ex parte order.

It is extra judicial order as no case was pending before the Sub Divisional Magistrate on judicial side.

Validity and legality of the order dated 26.5.2010 and consequent thereto the dispossesson of the petitioner on 11.6.2010 is the core issue for determination.

In other words, is it permissible in India, governed by rule of law, to evict a person by an executive order.

Here is a case where the petitioner has been dispossessed by the State authorities at the instance of respondent no. 7.

It is an acknowledged legal position that a person in settled possession is entitled for protection from forcible dispossession. Law is firmly settled in this regard.

In Bishan Das and others versus State of Punjab AIR 1961 SC 1570, one person with the permission of State constructed a dharamshala, temple and shops on the land belonging to the State and managed the same during his life time. The dharamshala was built for the benefit of travelling public and the members of the public offered worship in the temple. After the death of that person, a dispute arose with regard to management of the property. The petitioner who was successor of the person was evicted by an executive order passed by the Sub Divisional Officer. A writ petition under Article 32 of the Constitution of India was directly filed before the Apex Court. It has been held that the family members of the deceased who raised the constructions cannot be evicted by an executive order passed by the Sub Divisional Officer. A person in possession cannot be removed by an executive fiat. It has been laid down therein that the respondents deprived the fundamental right of the petitioners therein who were bonafide possession by depriving them the possesson of the properties by executive orders. The relevant extract is reproduced below:

"11. Learned Counsel for the respondents has drawn our attention to the statement of Ramji Das made in 1925, and the order of the Revenue Minister dated December 13, 1954, and has contended that Ramji Das himself admitted that he was a mere trustee. Be that so; but that does not give the State or its executive officers the right to take the law into their own hands and remove the trustee by an executive order. We must, therefore, repeal the argument based on the contention that the petitioners were trespassers and could be removed by an executive order. The argument is not only specious but highly dangerous by reason of its implications and impact on law and order.

12. 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."

In State of U.P & others versus Maharaja Dharmander Prasad Singh AIR 1989 SC 997, the Apex Court has laid down that the State Government, on the self-assumed and self-assessed validity of its own action of cancellation of lease, has no right to resume possession extrajudicially by use of force, it would cause great hardship and injustice. The Court held that the possession can be resumed by the Government only in a manner known to or recognised by law. It cannot resume possession otherwise that in due course of law.

In State of West Bengal versus Vishnunarayan and Associates (P) Ltd. And another AIR 2002 SC 1493 following the aforesaid decisions, it has been held that an action for eviction by force cannot be justified in law and for taking possession, action has to be taken in accordance with the law.

As said above, the action of the respondents in dispossessing the petitioner from the plot in question is patently arbitrary exercise of power by the Sub Divisional Magistrate and Tahsildar.

At this stage, the plea raised by the respondents that an opportunity of hearing was provided to the petitioer before passing of the eviction order needs consideration. Much emphasis was laid by him that before passing of the eviction order, a notice dated 10.5.2010 was issued to the petitioner by the Sub Divisional Magistrate, Sasni, Maha Maya Nagar. The said notice was served by affixation. The sending of the notice by the Sub Divisional Magistrate is nothing but an eye wash. It does not appear from the record that an attempt was made by him to serve the notice personally on the petitioner. There is no material to show that the petitioner ever refused to accept any notice tenered to him. Service of notice without tendering it to the notice, is no service in the eyes of law.

The contention of the petitioner that the service of notice by affixation is a fake one, deserves acceptance.

The petitioner has come with the case that no proceeding was registered as a case in the Court of Sub Divisional Magistrate. Requisite information in this regard was obtained by him under Right to Information Act which shows that no case for eviction of the petitioner was registered against him, before the Sub Divisional Magistrate. Therefore, the Sub Divisinal Magistrate could not order eviction of the petitioner.

Pointedly a querry was put to Shri Arvind Srivastava, Advocate appearing on behalf of the private respondents under which provision or principle of law or Act, the Sub Divisional Magistrate exercised the power by passing eviction order or had issued the notice dated 10.5.2010. He could not give any reply. Obviously, the Sub Divisional Magistrate was under the influence of the letter written by the sitting MLA addressed to the District Magistrate who forwarded it to the Sub Divisional Magistrate for doing the needful. The Sub Divisional Magistrate or the Tahsildar did not apply their judicial mind before ordering the eviction of the petitioner. They were acting at the behest of the respondent no. 7 who got the letter issued by the sitting MLA. In this fact situation as observed by the constitution Bench of Apex Court in the case of Bishan Das(Supra), the petitioner cannot be removed by an executive fiat, is fully applicable.

The learned counsel for the petitioner referred the following cases:

1. S.R.Ejaz versus The Tamil Nadu Handloom Weavers Co-operative Soceity Ltd. 2002 AIR SUPREME COURT 1152;

2. Commander N.P Kulshreshtha and others versus State of U.P and others 1997(1) ARC 357;

3. Ramchandra Deb and others versus State of Orissa AIR 1957 ORISSA 80;

4. State of Haryana versus Mohinder Pal 2000 AIR(SC)-0-3580;

5. Mohan Lal Mehra versus State of U.P & others 1995(1) ARC 553;

6. Saraswati Devi versus District magistrate, Azamgarh 1996-arc-1-434,

in support of his contention that a person who is in settled possession cannot be evicted by an executive order, otherwise in due course of law, irrespective of question of title. It has been held that possession in law is a substantive right which exists and has legal intent and advantages, apart from true owners title. This seems to be the principle on which the provisions of Section 9 of the Specific Relief Act and Section 145 Cr.P.C are based. Section 9 of the Specific Relief Act confers on a person who is dispossessed without his consent of immovable property otherwise then due course of law a right to recover possession there of notwithstanding any title that may be set up by the other side.

No person can be allowed to become a judge in his own cause . Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hand and to dispossess a person without having a recourse to Court as said in the Full Bench of this Court in AIR 1959 ALL 1 A.R.Mohd.versus Laxmi Das.

In Krishna Ram Mahale versus Mrs.Shobha Venkat Rao in AIR 1989 Supreme Court 2097, a licensor was unlawfully dispossessed before expiry of license period by the lecensee. Restoring the possession to the licensee, even after the expiry of the license period, the Apex Court has made the following observations:

"It is well-settled law in this country that where a person is in settled possession of property, even on the assumption that he had not right to remain on the property, he cannot be dispossed by the owner of the property except by recourse to law."

Viewed as above, the action of the respondents particularly of Sub Divisional Magistrate and the Tahsildar Sasni, in passing the order of eviction and evicting the petitioner on the executive side without taking any recourse to law is nothing but an arbitrary exercise of power. Their action canot be justified.

The argument of the learned counsel for the respondent that the petitioner has admittedly filed a Civil Suit before the Trial Court which is pending and therefore, this Court should not exercise its extraordinary jurisdiction under Article 226 of the Consitutiton of India, has no merit, for the reasons more than one. The said suit was filed altogether on a different cause of action and on different allegations. In the suit, the petitioner has sought relief for declaration of his title and injunction in respect of plot in question on the allegation that there is error in the revenue entry. The cause of action for filing the present writ petition arose subsequently when the petitioner was dispossessed on 11.6.2010. The legality and validity of the dispossesson order dated 11.6.2010 was not in existence on the day when the suit was filed. As already demonstrated herein above, the petitioner was not associated with the executive action undertaken by the Sub Divisional Magistrate and the Tahsildar at the behest of the District Magistrate and the M.L.A. The petitioner was never made aware by any of these authorities that some administrative proceedings is going against him for his dispossession from the plot in question.

Alternatively, as laid down by the Apex Court in the case of Bishan Das(Supra), dispossession of the petitioner clearly violates his fundamental rights as he was in bonafide possession. Depriving a person of the possession of the properties by executive order, a writ under Article 226 is the only adequate and efficacious remedy to such person like petitioner. The relevant paragraph has been already extracted above. This being a case of violation of fundamental rights as observed the Apex Court in its constitution Bench decision given in the case of Bishan Das (Supra), the filing of the suit cannot be treated at any rate as is adequate and efficacious remedy.

Before parting with the case, it is necessary to observe that the learned counsel for the respondents all the time pressed that the property in dispute is a Gaon Sabha property as public has right of worship in the temple. Reference was made to show that the property in dispute was recorded in the revenue record in the name of the temple. No record could be placed to show that there was dedication of the temple by Smt. Kishani Kunwar to the public or it is a public temple. Nothing was shown to show that any public trust was created by Smt.Kishani Kunwar. The fact that villagers were permitted to worship in the temple is not by itself sufficient to hold in the absence of any material that temple is a public temple. The revenue entry is of temple and the temple was established by Smt. Kishani Kunwar who was the ancestor of the petitioner.

The learned counsel for the respondents could not refer or place any statutory provision to show the vesting of a temple in Gaon Sabha. What right the respondent no. 7 has got over the disputed property is difficult to understand. Even if as observed by the Apex Court in the case of Bishan Das(Supra), it was a public temple, it ought to have taken appropriate legal action for the removal of the petitioner. If the respondents have thought that the petitioner is in the occupation unauthorisedly, it was open to them to take appropriate legal steps. If the state would have thought that the temple, dharamshala and the shops are subject matter of public trust, they should have taken the recourse to Section 92 of C.P.C as has been pointed out by the Apex court in Bishan Das case's (Supra).

There is another aspect of the case. We are required to examine the legality and validity of the eviction order dated 26.5.2010, an executive order. Time and again the Apex Court has laid down that in such matters, the scope of judicial review is confined to the examination of the decision making process. The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reached on a matter which is authorised by law to decide for a conclusion in the eyes of law. Relevant portion of paragraph 28 of State of U.P and others versus Maharaja Dharmender Prasad Singh, AIR 1989 Supreme Court 997, is reproduced below:

"28. .........................................................................

.........................................................................

However, Judicial review under Article 226 cannot be converted into an appeal. Judicial review is directed, not against the decision, but is confined to the examination of the decision making-process. In Chief Constable of the North Wales Police v. Evans, [1982] 1 WLR 1155 refers to the merits-legality distinction in judicial review. Lord Hail- sham said:

"The purpose "of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court."

Lord Brightman observed:

" ..... Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made ..... "

And held that it would be an error to think:

" ..... that the Court sits in judgment not only on the correctness of the decision-making process but also on the correctness of the decision itself."

When the issue raised in judicial review is whether a decision is vitiated by taking into account irrelevant, or neglecting to take into account of relevant, factors or is so manifestly unreasonable that no reasonable authority, entrusted with the power in question could reasonably have made such a decision, the judicial review of the decision making process includes examination, as a matter of law, of the relevance of the factors. In the present case, it is, however, not necessary to go into the merits and relevance of the grounds having regard to the view we propose to take on the point on natural justice.

It would, however, be appropriate for the statutory authority, if it proposes to initiate action afresh, to classify the grounds pointing out which grounds, in its opinion, support the allegation of fraud or misrepresentation and which, in its view constitute subsequent violations of the terms and conditions of the grant. The grounds must be specific so as to afford the Lessees an effective opportunity of showing cause.

In essence the test is to see whether there is any infirmity in decision making process and not in the decision itself. (see Indian Railways Construction Co.Ltd. versus Ajay Kumar, 2003(4) SCC 579).

An order which is "illegal" or "irrational" can be judicially reviwed. Lord Diplock (as reproduced in Reliance Airport Developers Pvt.Ltd. Versus Airport Authority of India and others J.T 2006(10) S.C 424) explained "irrationality" as follows:

Lord Diplock explained "irrationality" as follows:

"By 'irrationality' I mean what can by now be succinctly referred to as Wednesbury unreasonableness'. It applies to a decision which is to outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."

Following the above, in Reliance Energy Ltd. Versus Maharashtra State Road Development Corporation Ltd. J.T 2007(11) Supreme Court 1, in paragraph 25, it has been laid down that the decision maker (here Sub Divisinal Magistrate) must understand correctly the law that regulates his decision making power and he must give effect to it otherwise it may result in illegality.

The Gaon Sabha could not succeed in the proceedings under section 122-B of U.P.Z.A & L.R Act undertaken by it, resorted to a short cut method, by filing an application for possession before Sub Divisional Magistrate. Such a course of acton cannot be approved.

We may just point out that in Kuldip Chand versus Advocate General AIR 2003 SC 1685, (para 23), where the right of the general public is not mentioned in the revenue record, only because as 'Sarai' or 'Parao' existed, would by itself not be sufficient to arrive at a conclusion that the same was a public trust. The tenants and lessees were paying rent to the owner as the case is here. The relevant paragraphs are reproduced below:

39. When the complete control is retained by the owner - be it be appointment of a Chowkidar; appropriation of rents, maintenance thereof from his personal funds dedication cannot be said to be complete. There is no evidence except oral statements of some witnesses to the effect that Raj Kumar Bir Singh became its first trustee. Evidence adduced in this behalf is presumptive in nature. How such trust was administered by Raj Kumar Bir Singh and upon his death by his successors in interest has not been disclosed. It appears that the family of the donor retained the control over the property and, therefore, a complete dedication cannot be inferred far less presumed. Furthermore, a trust which has been created may be a private trust or a public trust. The provisions of Section 92 of the Code of Civil Procedure would be attracted only when a public trust comes into being and not otherwise.

40. Undoubtedly, bequests for construction of a Dharamsala will be for a charitable purpose. It is not necessary that the properties must be dedicated to any particular deity but what is essential is complete dedication for a charitable purpose. Such dedication may be made to an object both religious and of public utility.

41. ...............................................................................

..............................................................................

42................................................................................

.................... ...........................................................

43................................................................................

.... ........................................................................

44. In the Bihar State Board Religious Trust, Patna vs. Mahant Sri Biseshwar Das (supra), this Court upon noticing the decision of the Privy Council in Babu Bhagwan Din vs. Gir Har Saroop [67, I.A., 1] observed :

"Thus, the mere fact of the public having been freely admitted to the temple cannot mean that Courts should readily infer therefrom dedication to the public. The value of such public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right. No such evidence of any reliable kind was available to the appellant-Board in the instant case."

45. ..............................................................................

...............................................................................

46. Yet again in Sri Radhakanta Deb and Another vs. Commissioner of Hindu Religious Endowments, Orissa (supra), upon taking into consideration a large number of decisions of the Privy Council as also of this Court, it was observed :

"It may thus be noticed that this Court has invariably held that the mere fact that the members of the public used to visit the temple for the purpose of worship without any hindrance or freely admitted therein would not be a clear indication of the nature of the endowment. It is manifest that whenever a dedication is made for religious purposes and a deity installed in a temple, the worship of the deity is a necessary concomitant of the installation of the deity, and therefore, the mere factum of worship would not determine the nature of the endowment. Indeed if it is proved that the worship by the members of the public is as of right that may be a circumstance which may in some cases conclusively establish that the endowment was of a public nature."

47.This Court laid down the following tests as sufficient guidelines to determine on the facts of each case whether an

endowment is of a public or private nature :

(1) Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right;

(2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large;

(3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature;

(4) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment.

The argument in the case was closed on 23.4.2012 and the judgment was reserved.

The delivery of judgment was notified in the cause list to be delivered on 7.5.2012.

Shri Arvind Srivastava, Advocate who had argued the matter on behalf of the contesting private respondents, on 4th of May 2012 relied on certain rulings which were submitted along with written submissions.

	1. Swetambar Sthanakwasi Jain Samiti and another versus Alleged 			Committee of Management (1996) 3 SCC II;
 
2. Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational & Charitable Trust versus State of Tamil Nadu & others (1996) 3 SCC 15;
 
3. Jai Singh versus Union of India & others  (1977) 1 SCC 1;
 
4. Inder Singh and Another versus State of Madhya Pradesh (1977) 1 SCC 2; 
 
5. Kusum Ingots & Alloys Ltd. Versus Union of India and another (2004) 6 SCC 254;
 
6. Usha Mehta and others  versus State of Maharashtra and others (2004) 6 SCC 264; 
 
7. Sopan Sukhdeo Sable and others versus Assistant Charity Commissioner and others (2004) 3 SCC 137 ;
 
8. State of U.P and another versus U.P Rajya Khanij Vikas Nigam Sangharsh Samiti and others (2008) 12 SCC 675; 
 
9. Orissa Agro Industries Corpn. Ltd. and others versus Bharati Industries and others (2005) 12 SCC 725; 
 
10. Western India Plywoods Ltd. Versus Collector of Customs (2005) 12 SCC 731; 
 
11. City and Industrial Development Corporation versus Dosu Aardeshir Bhiwandiwala and others (2009) 1 SCC 168
 
	In substance,  they are to the effect that when a suit is pending in Civil Court, the High Court should not entertain a writ petition and a party cannot be permitted to pursue parallel remedies in respect of same matter at the same time. 
 

As discussed above, the suit is not in respect of the orders impugned in the present writ petition. As noticed in the earlier part of the judgment, the suit was filed when the petitioner was not aware about the ex-parte order dated 26.5.2010 passed by the District Magistrate and the delivery of possession memo dated 11.6.2010. The cause of action in the writ petition is entirely different i.e illegal dispossession of the petitioner by an executive order without recourse to legal proceeding.

As said by the Apex Court in the judgment of Bishan Das's case (Supra), the impugned order violates the fundamental rights of the petitioner to legally possess the property in dispute.

In view of the above finding, the decisions relied upon by the counsel for the private respondent in his written submission have no application to the facts of the present case and are distinguishable.

Before parting with the case, it may be placed on record that we are not required to and not gone into the question of title of the parties with respect to plot in dispute. It shall be gone into in an appropriate proceeding before appropriate forum. It requires evidence and resolution of disputed questions of fact as also question relating to trust public or private. Our observation made in this judgment are confined to deciding this writ which shall not be treated as expression of any concluded opinion on merits of the respective claim. The parties are free to get their title adjudicated in a competent court.

In view of above, we are of the definite opinion that the manner in which the petitioner was dispossessed on 11.6.2010, is wholly illegal. The petitioner could not have been dispossessed by an executive action without taking recourse to procedure known to law. It is a case where the administration including the State authorities have acted in the manner not befitted to the power conferred on them.

After hearing the counsel for the parties, on 28.8.2010 a detailed interim mandamus was issued by a Division Bench of this Court staying the operation of the orders dated 26.5.2010 and reports dated 11.6.2010 and 14.6.2010 and directing the respondent nos. 2, 3 4 & 5 to restore the possession of the temple properties in qeustion (plot no. 27) Village Bijahari Pargana & Tehsil Sasni, District Mahamaya Nagar withing one week from the date of production of certified copy of this order before them or to show cause within the said period.

Shri M.K.Gupta, learned counsel for the petitioner pointed out that in pursuance of the aforesaid interim order, a letter was given by the Tahsildar asking the pettioner to come and take the possession. In pursuance thereof, the petitioner appraoched the Tahsildar for taking the possession but the Tahsildar refused to deliver the actual possession and he wanted that the petitioner may sign the possession delivery memo without actually delivering the possession. The petitioner did not agree. The said conduct of the Tahsildar cannot be approved. He was required to give actual possession on the spot.

We are restraining ourselves to make any further observation with regard to the conduct of the Sub Divisional Magistrate and of the Tahsildar for the time being in view of the final order by giving them one opportunity to correct themselves.

Viewed as above, the petitioner is entitled for the reliefs claimed in the writ petition. The writ petition therefore, suceeds and is allowed with costs. The impugned order dated 26.5.2010 (annexure-18 to the writ petition) directing the Tahsildar and the Station House Officer to evict the petitioner with police force and delivere the property to Gram Sabha Samaj is hereby quashed. The delivery of possession vide possession report dated 11.6.2010 submitted by Lekhpal to the Sub Divisional Magistrate is also quashed. All the respondents including Sub Divisional Magistrate and Tahsildar in particular are directed to put the petitioner in possession over property in dispute which consist of Temple, Dharamshala and 20 shops by removing the respondent no. 7 or any other person (except the tenants of 20 shops) from the aforesaid property within ten days. The Additional Chief Standing Counsel is required to send a copy of this order to the District Magistrate who shall be duty bound to see that the order is complied with in its letter and spirit forthwith, and shall submit a compliance report.

The petitioenr shall be entitled to get Rs.25,000/- as costs of the litigation as also for illegal deprivation of the disputed property for about 1 year and 11 months, from the respondent Smt. Chandrawati, who shall pay it within one month.

(Prakash Krishna,J)                 (Ashok Bhushan,J)
 
Order Date: 7.5.2012
 
IB