Vipin Kumar vs State Of U.P. And 5 Others
2023 Latest Caselaw 21293 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?AFR
 
Neutral Citation No. - 2023:AHC:160377
 
Court No. - 51
 

 
Case :- WRIT - C No. - 18937 of 2023
 
Petitioner :- Vipin Kumar
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Arun Kumar Srivastava,Priyanka Srivastava
 
Counsel for Respondent :- C.S.C.,Avinash Chandra Srivastava
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. Arun Kumar Srivastava, learned counsel for the petitioner, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents and Mr. Avinash Chandra Srivastava, learned counsel for the respondent no.4- Gaon Sabha.

2. The instant petition has been filed for the following reliefs:

"i. issue a writ, order or direction in the nature of mandamus commanding the District Magistrate, Firozabad to take appropriate action upon the representation dated 1.4.2023.

ii. issue a writ, order or direction in the nature of mandamus commanding the respondent authorities to ensure the compliance of the order dated 9.6.1993 passed by the Tahsildar in Case No.213 /90 of 1993 (Vijay Pral Vs. Maya Devi) under Section 34 of Land Revenue Act and hand over the management and control of temple Thakur Ramchandraji Maharaj Virajman Mandir, Pachokhara, Tahsil- Tundala, District- Firozabad.

iii. issue a writ, order or direction in the nature of mandamus commanding the respondent authorities to evict the respondent nos.5 & 6 from unauthorized possession of the temple Thakur Ramchandraji Maharaj Virajman Mandir and hand over the management of the temple to the Gram Panchayat, Pachokhara, Tahsil- Tundala, District- Firozabad.

iv. issue any other writ, order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the present case.

v. award the cost of the petition in favour of the petitioner."

3. Learned counsel for the petitioner submitted that the Tahsildar vide order dated 9.6.1993 decided the mutation matter and ordered that the parties should approach competent Court for appointment of sarvarakar and further made certain arrangement in respect to the temple in dispute. He further submitted that subsequently civil suit under Section 92 of Code of Civil Procedure has been file and the suit was decreed vide judgment dated 15.4.2014. He next submitted that the decree of civil suit was challenged in appeal and the appellate Court has allowed the appeal setting aside the judgment and decree passed in the civil suit dated 15.4.2014 and restored the suit No.1 of 2012 under section 92 CPC to its original number. He also submitted that since the civil Suit No.1 of 2012 has been restored to its original number, as such, the order passed by the Tahsildar dated 9.6.1993 be implemented. He further submitted that the petitioner has filed the representation to this effect before respondent-authorities, which is pending, as such, necessary direction be issued for deciding the petitioner's representation in accordance with law.

4. On the other hand, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents submitted that since the suit, under Section 92 of C.P.C. is pending before civil court, as such, the petitioner should approach the civil Court for proper relief as claimed by the petitioner in the instant petition. He further submitted that Section 92(1)(cc) of C.P.C. provides for grant of relief during pendency of the suit under Section 92 of C.P.C., as such, representation filed by the petitioner cannot be maintained in the eye of law.

5. I have considered the argument advanced by learned counsel for the parties and perused the record.

6. There is no dispute about the fact that suit under Section 92 of C.P.C. has been filed which is pending before the civil Court.

7. In order to appreciate the controversy the perusal of section 92 of Civil Procedure Code will be relevant which is as under:-

"92. Public Charities?(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the [leave of the Court,] may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree?

(a) removing any trustee;

(b) appointing a new trustee;

(c) vesting any property in a trustee;

[(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;]

(d) directing accounts and inquiries;

(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

(f) authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged;

(g) settling a scheme; or

(h) granting such further or other relief as the nature of the case may require.

(2) Save as provided by the Religious Endowments Act, 1863 (20 of 1863), [or by any corresponding law in force in [the territories which, immediately before the 1st November, 1956, were comprised in Part B States]], no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section.

[(3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be appliedcypresin one or more of the following circumstances, namely:?

(a) where the original purposes of the trust, in whole or in part,?

(i) have been, as far as may be, fulfilled; or

(ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or

(b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or

(c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or

(d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or

(e) where the original purposes, in whole or in part, have, since they were laid down,?

(i) been adequately provided for by other means, or

(ii) ceased, as being useless or harmful to the community, or

(iii) ceased to be, in law, charitable, or

(iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.]"

8. The order which was passed by Tahsildar on 9.6.1993 in the proceeding under section 34 of U.P. Land Revenue Act is also necessary for perusal which is as under:-

"???????? ???????? ????? ? ???? ????????? ????? ???????? ???????

??? ??? 213/90 ??? 1993?

??????? ???? ????????

????-34 ????? ????

????? ??????

??? ???? ?????? 9-6-93

?? ??? ?????????? ???? ?????? ?????? ???????? ???????? ??? ?????? ???? ?????? ????? ????????? ? ???? ???????? ? ????????? ?????? ??????? ?????? ? ?????? ?????????? ?????? ?????? ???? ???? ????? ????? ?? ??????? ?? ???????? ??? ?? ??? ??? ?????? ??????? ???? ???? ??? ?? ?? ??? ????? ???? ??? ??? ??????? ??? ?? ????? ????? ??????? ??? ???? ???????? ? ????????? ? ???????? ?? ?????? ?????? ???? ?????? ???????? ?? ?? ?? ?????????? ?????? ???? ??? ??? ?????? ???? ?? ??? ?? ?????????? ?????? ???? ?????? ?? ???? ??? 170 ???? ???- 1251 ???? 3-4-1 ?? ???????? ??? ?? ?????? ??????? ???? ?? ???? ?? ????????? ???? ??? ?? ??? ???????? ? ???????? ?????? ???? ?? ???? ?? ???? ???? ??? ????? ????? ?? ????????? ?? ???? ???? ??? ?? ??????? ??? ??????? ? ?????????? ? ????????? ? ??????? ????? ?? ???? ????? ????? ????? ?? ??????? ???? ?? ???? ????? ??? ??????? ?? ???? ????? ?? ????? ?? ??? ???? ?? ????? ????? ???????? ???????? ?????? ?? ???? ????? ?? ????? ??? ??????? ?? ???? ????? ?? ??? ?? ?? ??? ?? ?? ?? ???? ??????? ?? ????? ????? ???????????? ???? ?? ???????? ?? ???? ????? ?? ??? ??????? ?? ??????? ???? ???? ???? ??? ??? ?? ?? ????????? ?? ??? ?? ?? ?????? ?? ???? ????? ?????????????? ?? ??? ???? ???? ?? ???? ????? ?? ?? ???? ?? ?????? ?? ??? ???? ?? ?? ????? ???? ?? ??????? ??? ?? ?? ??? ??????? ???? ?? ???? ?????? ?? ?? ??? ??? ???? ??? ???? ????? ?? ???? ???? ???? ???? ???????? ?????? ?????? ???? ?? ?????? ?? ??? ??? ???? ?? ??? ????? ???????? ?? ?????? ????????? ?? ?????? ???? ?? ??????? ?????????? ?? ???? ???? ?? ??????????? ?? ???????? ?? ??? ?? ?? ?????? ?? ???? ????? ??? ??? ?? ?? ???? ?? ????? ??? ???? ?????? ?? ???? ???? ?? ???????? ?? ?????? ????? ?? ??????? ??? 130/82-83 ????? ?????? ????? ???? ????????????? ?? ??????? ?? ????????? ???????? ???? ??? ?? ???? ???? ?? ?? ?? ?? ????? ???????? ?????? ????? ??? ??? ??? ???????? ???????? ? ???? ??? ?? ?? ??? ??? ??? ???????? ?? ???????? ????? ???????? ?????? ?? ?? ?? ??????? ???????? ??? ?? ???????? ?? ???? ?? ?????? ??? ??? ???? ?????? ?? ?????? ?? ???? ?? ??? ???????? ?? ?????? ??? ?? ???????? ??? ??? ??? ??????? ?????? ???? ?? ????? ?? ?????? ?? ??? ?? ????? ???????? ?????? ??? ???????? ?? ???? ???????? ???? ??? ?? ??? ??? ??? ?? ????? ?? ???????? ?? ?????? ??????? ?? ???? ?? ?? ?? ????? ???????? ?? ???????? ???????? ???? ?? ???? ?? ?? ??????? ????????? ????????? ?? ?????? ??????? ?????? ??????? ???? ???? ????? ??? ?????? ?? ?????? ??? ???? ?? ???????? ???? ???? ???? ???? ?? ?? ??????? ????? ??? ?????? ???? ???? ???? ?? ?????? ?? ???? ?????? ???? ??? ???? ?? ?????? ???? ???? ?? ?????? ??? ?? ????? ?? ?? ????????? ???? ???? ?? ?? ?????? ?? ??? ???? ?? ???? ???? ?? ?? ?????? ????? ??? ?? ??????? ?? ?? ???? ????? ????? ?????? ???????? ???? ?? ?????? ??????? ???? ???? ???? ??? ???? ???????? ?? ???????? ?? ????? ?? ??? ????? ???????? ??? ??? ???????? ??? ????????? ????????? ???? ???? ???????? ?? ??????? ??????? ??, ????????, ???????? ?????? ???? ???? ??? ???????? ??? ?????? ????????? ???? ????? ?? ??????

??????

????????"

9. Considering the fact of pendency of the suit under section 92 of Civil Procedure Code as well as the provisions contained under section 92 of Civil Procedure Code there is no question for implementation of the order of Tahsildar dated 9.6.1993 passed under section 34 of U.P. Land Revenue Act as complete procedure has been provided in respect to the suit under section 92 of Civil Procedure Code for maintenance of the property during pendency of the suit.

10. Since the suit under section 92 of Civil Procedure Code is pending, as such, appropriate application can be filed in the pending suit, under Section 92 of C.P.C. rather implementation of the direction passed in summary proceeding under section 34 of U.P. Land Revenue Act.

11. No interference is required in the matter.

12. The writ petition is dismissed, accordingly.

Order Date :- 9.8.2023

Rameez