Rajasthan High Court

Shri Ajay Jain S/O Shri Manakraj ... vs Commissioner, Devasthan Vibhaag ... on 13 January, 2022

Bench: Sameer Jain

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 14871/2019

Shri Ajay Jain S/o Shri Manakraj Munoth
                                                                   ----Petitioner
                                    Versus
Commissioner, Devasthan Vibhaag Rajasthan
                                                                 ----Respondent

Connected With S.B. Civil Writ Petition No. 14860/2019 Shri Ajay Jain S/o Shri Manakraj Munoth

----Petitioner Versus Commissioner, Devasthan Vibhaag Rajasthan

----Respondent

For Petitioner(s) : Mr. Rajendra Prasad Sr. Adv through VC assisted by Mr. Deepak Sharma.

For Respondent(s) : Mr. Shailesh Sharma, AGC through VC Mr. Ravi Kant Sharma through VC Mr. R.K Daga through VC

HON'BLE MR. JUSTICE SAMEER JAIN

Order

13/01/2022

1. Learned Sr. Counsel appearing for the petitioner Shri

Rajendra Prasad, submits that vide interim order dated

06.08.2021, reproduced below:-

"Due to paucity of time, the case could not be heard finally. List these cases for final arguments on 08.09.2021.

In the meanwhile, the properties of the trust shall not be alienated and no third party rights shall be created."

2. A restraining order was passed whereby it was directed that

the properties of the trust shall not be alienated and no third party

rights shall be created. The said order was passed in presence of

petitioner's as well as respondent's counsel.

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3. Counsel for the respondent submits that vide one compromise

agreement, respondent No.3 Manju Kothari in S.B Civil Writ Petition

No. 14871/2019 inspite of knowledge of the said order has alienated

and created third party rights over the property of trust. He further

submits that a Civil Suit for specific performance and permanent

injunction was filed bearing No. 33/2019 titled Smt. Anubha

Prabhune Vs. Rajasthan Welfare Trust and Others. The said Smt.

Manju Kothari on behalf of the trust has entered into compromise with

the plaintiff- Smt. Anubha Prabhune and has filed the said compromise

settlement dated 06.12.2021 before the ADJ No.4 Jaipur Metropolitan-

I. The said compromise states that plaintiff shall deposit Rs. 4.50 Crores

to the trust within one month and the sale deed of the property of the

trust as described in the writ petition/ Civil Suit shall be registered. In

this regard, decree of the Court dated 06.12.2021 was also filed along

with second stay application. He further submits that plaintiff and

defendant in the suit have in collusion committed breach of trust and

flouted the order of the Court dated 06.08.2021 by consciously entering

into the said compromise deed.

4. As per him, in the light of the Hon'ble Apex Court judgments, the

said compromise decree is in breach of trust and he relied upon

judgment of Prithvichand Ramchand Sablok Vs. S.Y Shinde AIR

1993 SC 929 (Para 4) reiterated below:-

"4. The Act was enacted to amend and consolidate the law relating to the control of rents and of evictions from demised premises. It imposes certain restrictions on the right of the landlord from recovering possession so long as the tenant pays or is ready and willing to pay standard rent and permitted increases and observes and performs the other conditions of the tenancy which are consistent with the provisions of the Act. If the tenant has failed to pay the rent and permitted increases due from him he can be evicted for that neglect in the matter set out in Section 12 of the Act. The other provision which confers a right of eviction is Section 13 of the Act with which we are not concerned in this case. The facts of the case clearly reveal that the landlord had sought eviction

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under Section 12 of the Act as the tenant had committed a breach of Sub-section (1) thereof, in that, he had failed to pay the rent to the landlord. To comply with the requirement of Sub-section (2) of that provision the landlord had served the tenant with a notice prior to the institution of the suit seeking eviction under Section 12(3) of the Act. This Sub-section is in two parts and may be extracted for ready reference:

12(3)(a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of the month after notice referred to in Sub- section (2), the court may pass a decree for eviction in any such suit for recovery of possession. 12(3)(b) In any other case no decree for eviction shall be passed in any such suit if on the day of hearing of the suit or on or before such other date as the court may fix, the tenant pays or tenders in court the standard rent and permitted increases then due and thereafter continues to pay or tender in court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the court.

Clause (a) sets out the circumstances in which the tenant forfeits the protection of the statute and entitles the landlord to evict him. If the case does not fall within the scope of Clause (a) the question to be considered is whether eviction should be ordered under Clause (b). This is clear from the opening words, "in any other case". If, however, the tenant satisfies the conditions of the said clause, the law protects him from eviction as is clear from the words, "no decree of eviction shall be passed in any such suit". The suit in the present case was filed under Section 12(3) of the Act but before the court could adjudicate whether Clause (a) or Clause (b) was attracted the parties arrived at a settlement, the relevant terms whereof have been extracted hereinbefore. It is well- settled that a decree passed on the basis of a compromise by and between the parties is essentially a contract between the parties which derives sanctity by the court super adding its seal to the contract. But all the same the consent terms retain all-the elements of a contract to which the court's imprimatur is affixed to give it the sanctity of an executable court order. We must, however, point out that the court will not add its seal to the compromise terms unless the terms are consistent with the relevant law. But, if the laws vests exclusive jurisdiction in the court to adjudicate on any matter, e.g. fixation of standard rent, the court will not add its seal to the consent terms by which the parties have determined the standard rent unless it has applied its mind to the question and has satisfied itself that the rent proposed by consent is just and reasonable. In such a case it is the independent satisfaction of the court which changes the character of the document from a mere contract to a court's adjudication which will estop the tenant from contending otherwise in any subsequent proceedings and

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operate as res judicata. If the standard rent is fixed solely on the basis of agreement between the parties, such a decree in invitum will not preclude the tenant from contending in any subsequent proceeding that the rent is excessive and require the court to fix the standard rent. Therefore, the character of the consent decree will depend on the nature of the dispute resolved and the part played by the court while super adding its seal to it."

5. He further submits that if any order/ compromise/ action is

carried contrary to the orders of the Court, the same is nullity. Reliance

was placed upon judgment of Manohar Lal (dead) by LRS. Vs.

Ugrasen (dead) by LRS. And others. reported (2010) 11 SCC 557:

2010 AIR SC 2210 upon Para 13-28 reproduced below.

"13. In Bangalore Medical Trust v. B.S. Muddappa and Ors. MANU/SC/0426/1991 : AIR 1991 SC 1902, this Court considered the provisions of a similar Act, namely, Bangalore Development Authority Act, 1976 containing a similar provision and held that Government was competent only to give such directions to the authority as were in its opinion necessary or expedient and for carrying out the purposes of the Act. The Government could not have issued any other direction for the reason that Government had not been conferred upon unfettered powers in this regard. The object of the direction must be only to carry out the object of the Act and only such directions as were reasonably necessary or expedient for carrying out the object of the enactment were contemplated under the Act. Any other direction not covered by such powers was illegal.

14. In Poonam Verma and Ors. v. Delhi Development Authority MANU/SC/8225/2007 : AIR 2008 SC 870, a similar view has been re-iterated by this Court dealing with the provisions of Delhi Development Authority Act, 1957. In the said case, the Central Government had issued a direction to make allotment of flat out of turn.

The Court held as under:

...Section 41 of the Act, only envisages that the respondent would carry out such directions that may be issued by the Central Government from time to time for the efficient administration of the Act. The same does not take within its fold an order which can be passed by the Central Government in the matter of allotment of flats by the Authority. Section 41 speaks about policy decision. Any direction issued must have a nexus with the efficient administration of the Act. It has nothing to do with carrying out of the plans of the authority in respect of a particular scheme.... Evidently, the Central Government had no say in the matter either on its own or under the Act. In terms of the brochure, Section 41 of the Act does not clothe any jurisdiction upon the Central Government to issue such a direction.

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15. In State of U.P. v. Neeraj Awasthi and Ors.

MANU/SC/0358/2006 : (2006) 1 SCC 667, this Court held as follows in context of Government directions:

36. Such a decision on the part of the State Government must be taken in terms of the constitutional scheme, i.e., upon compliance of the requirement of Article 162 read with Article 166 of the Constitution of India. In the instant case, the directions were purported to have been issued by an officer of the State. Such directions were not shown to have been issued pursuant to any decision taken by a competent authority in terms of the Rules of Executive Business of the State framed under Article 166 of the Constitution of India.

16. In The Purtabpore Co., Ltd. v. Cane Commissioner of Bihar and Ors. MANU/SC/0016/1968 : AIR 1970 SC 1896, this Court has observed:

The power exercisable by the Cane Commissioner under Clause 6(1) is a statutory power. He alone could have exercised that power. While exercising that power he cannot abdicate his responsibility in favour of anyone - not even in favour of the State Government or the Chief Minister. It was not proper for the Chief Minister to have interfered with the functions of the Cane Commissioner. In this case what has happened is that the power of the Cane Commissioner has been exercised by the Chief Minister, an authority not recognised by Clause (6) read with Clause (11) but the responsibility for making those orders was asked to be taken by the Cane Commissioner.

The executive officers entrusted with statutory discretions may in some cases be obliged to take into account considerations of public policy and in some context the policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but this will not absolve them from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for them to be given binding instructions by a superior.

17. In Chandrika Jha v. State of Bihar and Ors. MANU/SC/0373/1983 : AIR 1984 SC 322, this Court while dealing with the provisions of Bihar and Orissa Co- operative Societies Act, 1935, held as under:

The action of the then Chief Minister cannot also be supported by the terms of Section 65A of the Act which essentially confers revisional power on the State Government. There was no proceeding pending before the Registrar in relation to any of the matters specified in Section 65A of the Act nor had the Registrar passed any order in respect thereto. In the absence of any such proceeding or such order, there was no occasion for the State Government to invoke its powers under Section 65A of the Act. In our opinion, the State Government cannot for itself exercise the statutory functions of the Registrar under the Act or the Rules.

18. In Anirudhsinhji Karansinghji Jadeja and Anr. v. State

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of Gujarat MANU/SC/0473/1995 : AIR 1995 SC 2390, it was observed:

This is a case of power conferred upon one authority being really exercised by another. If a statutory authority has been vested with jurisdiction, he has to exercise it according to its own discretion. If the discretion is exercised under the direction or in compliance with some higher authority's instruction, then it will be a case of failure to exercise discretion altogether.

(Emphasis added)

19. In K.K. Bhalla v. State of M.P. and Ors.

MANU/SC/0234/2006 : AIR 2006 SC 898, this Court has delineated the functions of the State Government and the Development Authority, observing that:

59. Both the State and the JDA have been assigned specific functions under the statute. The JDA was constituted for a specific purpose. It could not take action contrary to the scheme framed by it nor take any action which could defeat such purpose. The State could not have interfered with the day-to-day functioning of a statutory authority. Section 72 of the 1973 Act authorizes the State to exercise superintendence and control over the acts and proceedings of the officers appointed under Section 3 and the authorities constituted under the Act but thereby the State cannot usurp the jurisdiction of the Board itself. The Act does not contemplate any independent function by the State except as specifically provided therein...

the State in exercise of its executive power could not have directed that lands meant for use for commercial purposes may be used for industrial purposes...

the power of the State Government to issue direction to the officers appended under Section 3 and the authorities constituted under the Act is confined only to matters of policy and not any other. Such matters of policy yet again must be in relation to discharge of duties by the officers of the authority and not in derogation thereof.... The direction of the Chief Minister being dehors the provisions of the Act is void and of no effect.

20. In Indore Municipality v. Niyamatulla (Dead through L.Rs. ) AIR 1971 SC 97, this Court considered a case of dismissal of an employee by an authority other than the authority competent to pass such an order i.e. the Municipal Commissioner, the order was held to be without jurisdiction and thus could be termed to have been passed under the relevant Act. This Court held that "to such a case the Statute under which action was purported to be taken could afford no protection".

21. In Tarlochan Dev Sharma v. State of Punjab and Ors. MANU/SC/1466/2001 : (2001) 6 SCC 260, this Court, after placing reliance upon a large number of its earlier judgments, observed as under:

In the system of Indian democratic governance as

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contemplated by the Constitution, senior officers occupying key positions such as Secretaries are not supposed to mortgage their own discretion, volition and decision-making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a government servant. No government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior.

(Emphasis added)

22. Therefore, the law on the question can be summarised to the effect that no higher authority in the hierarchy or an appellate or revisional authority can exercise the power of the statutory authority nor the superior authority can mortgage its wisdom and direct the statutory authority to act in a particular manner. If the appellate or revisional Authority takes upon itself the task of the statutory authority and passes an order, it remains unenforceable for the reason that it cannot be termed to be an order passed under the Act.

23. In Mulraj v. Murti Raghunathji Maharaj MANU/SC/0338/1967 : AIR 1967 SC 1386, this Court considered the effect of action taken subsequent to passing of an interim order in its disobedience and held that any action taken in disobedience of the order passed by the Court would be illegal. Subsequent action would be a nullity.

24. In Surjit Singh v. Harbans Singh MANU/SC/0032/1996 : AIR 1996 SC 135, this Court while dealing with the similar issue held as under:

In defiance of the restraint order, the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prevalent public policy. When the Court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes.

25. In All Bengal Excise Licensees Association v. Raghabendra Singh and Ors. MANU/SC/1328/2007 : AIR 2007 SC 1386, this Court held as under:

A party to the litigation cannot be allowed to take an unfair advantage by committing breach of an interim order and escape the consequences thereof...the wrong perpetrated by the respondents in utter disregard of the order of the High Court should not be permitted to hold

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good.

26. In Delhi Development Authority v. Skipper Construction Co. (P) Ltd. and Anr. MANU/SC/0497/1996 : AIR 1996 SC 2005, this Court after making reference to many of the earlier judgments held:

On principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them.

27. In Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund MANU/SC/8191/2007 : AIR 2008 SC 901, this Court while dealing with the similar issues held that even a Court in exercise of its inherent jurisdiction under Section 151 of the Code of Civil Procedure, 1908, in the event of coming to the conclusion that a breach to an order of restraint had taken place, may bring back the parties to the same position as if the order of injunction has not been violated.

28. In view of the above, it is evident that any order passed by any authority in spite of the knowledge of the interim order of the court is of no consequence as it remains a nullity."

6. Per contra, learned counsel for respondents representing

Devasthan Vibhag submits that as per Section 31 of the Public Trust

Act, 1959, if there is any sale exchange or gift of any immovable

property more than Rs. 5000/-, previous sanction of Assistant

Commissioner is must. The said section is not complied with. It is

apposite to reproduce the said section below:-

"Sec. 31 - Previous sanction to be obtained for certain transfers:

1. Subject to the directions in the instrument of trust or any directions givenunder this Act or any other law by any court:

(a) no sale, exchange or gift of any immovable property or of movable property exceeding five thousand rupees in value, and (b) no lease, for a period exceeding five years in the case of agricultural land orfor a period exceeding three years in the case of non-agricultural land or a building. belonging to a public trust shall be valid without the previous sanction of the Assistant Commissioner.

2. An application for the sanction of the Assistant Commissioner, under sub-section (1) shall be made in the prescribed manner and form.

3. Where, on the application duly made for sanction in respect of any transaction specified in sub-section(1), the Assistant Commissioner does not, within two months of the receipt thereof, pass final orders, it shall be

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presumed that he has accorded sanction in respect of that transaction, provided that the application described the transaction, with sufficient accuracy.

4. The Assistant Commissioner shall not refuse to accord sanction in respect of any transaction specified in sub- section (1) unless such transaction is, in this opinion, likely to be prejudicial to the interests of the public trust, and no order refusing to accord sanction shall be passed unless the working trustee of such public trust has had a reasonable opportunity of being heard. "

7. Counsel for the respondent No. 3 Shri Ravi Kant Sharma in the

instant matter submitted that disputed question of facts are involved

and that one criminal proceeding was initiated against the petitioner on

account of creation of forged will. He further submits that as per trust

deed condition No. 11, the trustees have all the powers to enter into

compromise or combine any action, suit or proceedings. Provisions of

the recital of the trust deed more particularly, Sr. No 11 is reproduced

below:-

"It shall be lawful for the Trustees to compromise or compound any action suit or proceedings differences or demand relating to the Trust Funds as they may think proper and to refer any such differences or demand to arbitration and to execute all documents expedient for such purposes and in all cases in which any question of law or equality shall arise relating to the Trust Funds or any of them to settle and arrange the same in such manner as they may be advised by their Solicitor or Counsel and abandon any claim as they may be so advised and to adjust, settle and approve all matter relating to the Trust Funds and to execute and to do all releases and things relating to the Trust Funds as fully and effectually as the Trustees could do if they were the absolute owners of the Trust Fund and without being answerable for any loss which may be occasioned thereby"

8. He submits that in the facts and circumstances he needs to file

appropriate reply to bring out correct facts to the knowledge of Court.

Counsel for the respondent No.3 further submits that petitioner by way

of one order of Division Bench was also held to be alienating the

properties of the trust.

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9. I have heard the contentions raised by respective counsels for the

petitioners as well as respondents. The anxiety and urgency shown by

learned Sr. Counsel Shri-Rajendra Prasad is that in the light of the

decree in compromise dated 06.12.2021, there is an apprehension that

third party rights will be created and property of the trust can be

alienated at any point of time.