IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14307 of 2008 DHARMENDRA KUMAR YADAV s/o Sri Bisheshwar Yadav, resident of Bodh Gaya Bazar, Pachhati Bodh Gaya, P.O. & P.S.- Bodh Gaya, District- Gaya, Chairman Mine Haha Helping Free Educational Center Trust,Bodh Gaya. Versus 1. THE STATE OF BIHAR through the Chief Secretary,Govt. of Bihar, Patna. 2. The Divisional Commissioner, Magadh Division, Gaya. 3. The District Magistrate, Gaya. 4. The Circle Officer, Anchal- Bodh Gaya,Gaya. 5. The Block Development Officer, Anchal- Bodh Gaya,Gaya. ----------- For the Petitioner : Mr. Anil Kumar Sinha and Mr. Mritunjay Kumar For the respondent: S.C.X 7 5.11.2009 With the consent of the parties this application is taken up for final disposal. Counter affidavit and rejoinder have been filed. The facts of this case are shocking. We the people of India who profess to live by the Constitution in a democratic country governed by rule of law have to face such a violation of basic principle of rule of law at the hands of the State is shocking and that too after nearly 60 years of the Constitution. There are hardly any dispute so far as facts are concerned. One Mine Haha, a renowned singer of Japan had been on pilgrimage to Bodh Gaya. When she came across Indian children begging on the street much to her dismay . Shocked on seeing begging prevalent in the State she agreed to donate substantial money so that a residential school could be started where such destitute children would be brought, fed, educated and looked after. Being shocked, she agreed to do what otherwise was the State sovereign 2 function and duty and the State had failed in it. This has apparently became an eye sore in the bureaucracy . With due permission, she transferred equivalent Rs. 50 lakhs to India for establishing Mine Haha Helping Free Educational Centre. She got registered a public charitable trust by the said name and the petitioner was made the Chairman of the said trust. Petitioner was able to find a land with a building thereon in which earlier Mandela Welfare Trust was running a school, which was lying vacant. He traced out the owner of the said land , who happens to be one Bindeshwari Giri as per zamabandi. He approached Bindeshwari Giri, who agreed to give the said land ad measuring 2.70 acres to the said registered trust. A gift deed accordingly was executed and the trust was put in possession of the said building.Since January, 2007 the trust started the school for destitute children and at the relevant time about 260 destitute children were staying there. The children were being given best food and other facilities . They were being given education at par if not much better than most of the private institutions in the State what to talk of government institutions. Additional constructions were also made, which included infirmity and computer training institute as well. All this was within the knowledge and eye sight of the government and the government authority. All of a sudden without any prior notice on 30.6.2008 the State officials unmindful of the destitute children staying therein put locks on the premises after using of brute force , threw out the children., the instructors and took possession of the building and the properties lying therein. The reason was not long to be found thereafter. Immediately Board and Banner of Mahadalit 3 Residential School, Katorwa was set up under the State aegis using the facilitiy and property established by the petitioner for the said charitable trust. One wonders to impress whom? Representation was made but as by now after forceful dispossession of the petitioner and the destitute children in furtherance of State programme for Mahadalit cause which had been sought to be established no help come and as such the petitioner has come to this Court. State has filed a counter affidavit . In the counter affidavit the fact that the petitioner was in peaceful possession of the property since long is not denied. The fact that the school of destitute children , namely, Mine Haha Helping Free Educational Centre was being run there is not denied. The fact that there was additional construction done and over 260 children were residing there and studying is not denied. Use of brute force to dispossess the petitioner and throw every body out is not denied. What is said is that the land appertain to cadrestral khata no. 713, plot no. 260,Revisional Survey khata no. 589, plot no. 481, which had a total area of about 13.92 acres. This land belongs to Bodhgaya Math. This land was declared as ceiling surplus land and by the government notification no. 698 of the year 1989. It vested in the State Government. The further case is that after the acquisition of this 13.92 acres of land, the same was distributed in landless persons vide Land Distribution case no. 1/1989. It is stated that nine beneficiaries who were so given parchas either died issueless or migrated and did not take possession. Thus, an area of about 1.64 acres remained vacant for last several years ( if not decades). 4 Petitioner being a land grabber tried to grab the land in the name of the school aforesaid without any legal or valid document and when this land grabbing came to the knowledge of the respondents they grabbed the land back from the petitioner . It is not in dispute that a zamabandi was running in the name of Bindeshwari Giri in respect of the said land . On the date when the government grabbed the land back forcibly the said zamabandi still stood in the name of Bindeshwari Giri, who, as noted above, had gifted the land to the charitable trust. It is now in the year 2009, almost after one year of government grabbing the land that zamabandi is being cancelled which again establishes that to the knowledge of the government, the zamabandi was not in their name at present. On these grounds State has justified its action of forcibly grabbing back the land and establishing a Mahadalit School. The first word of caution that this Court would like to make is however, benevolent object may be illegality in achieving that object , specially when such illegality is committed by the State cannot be justified on any ground whatsoever. More so, in a civilized democratic society governed by rule of law as we profess. From the facts stated above, what is clear by admitted and not in dispute is that a charitable institution was running a school for destitute children and were in peaceful possession of the property. Without any proceeding, without any notice and without recourse of any law prescribed under rule of law , the children over 260 in number and the management were thrown on the street. Petitioner and the trust dispossessed forcibly from the land. The only justification being that 5 the petitioner was in illegal possession of the land and the premises which justifies the State in dispossession them illegally. I am afraid the stand of the government is anti constitutional. There cannot be anything more destructive of the basic principle of rule by law. What has been followed is not rule of law but the rule of Jungle. That is unauthorized. The Apex Court in the case of Bishan Das & ors –v- State of Punjab & ors. since reported in AIR 1961 SC 1570 had occasioned to consider an identical situation and the anguish of the Court in the manner in which State proceeded and the law in that regard is fully discussed to be found in para 14 of the said report which is quoted with emphasis supplied by me. “ (14) Before we part with this case , we feel it our duty to say that the executive action taken in this case by the State and its officers is destructive of the basic principle of the rule of law . The facts and the position in law thus clearly are (1) that the buildings constructed on this piece of Government land did not belong to Government, (2) that the petitioners were in possession and occupation of the buildings and (3) that by virtue of enactments binding on the Government , the petitioners could be dispossessed , if at all, only in pursuance of a decree of a Civil Court obtained in proceedings properly initiated. In these circumstances the action of the Government in taking the law into their hands and dispossessing the petitioners by the display of force, exhibits a callous disregard of the normal requirements of the rule of law apart from what might legitimately and reasonably be expected from a Government functioning in a society governed by a 6 Constitution which guarantees to its citizens against arbitrary invasion by the executive of peaceful possession of property . As pointed out by this Court in Wazie Chand –v- State of Himachal Pradesh, 1955-1 SCR 408: (AIR 1954 SC 415), the State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts. In Ram Prasad Narayan Sahi –v- Sate of Bihar, 1953 SCR 1129 : (AIR 1953 SC 215), this Court said that nothing is more likely to drain the vitality from the rule of law than legislation which singles out a particular individual from his fellow subjects and visits him with a disability which is not imposed upon the others. We have here a highly discriminatory and autocratic act which deprives a person of the possession of property without reference to any law or legal authority .Even if the property was trust property it is difficult to see how the Municipal Committee, Barnala, can step in as trustee on an executive determination only. The reasons given for this extra ordinary action are, to quote what we said in Sahi’s case (supra), remarkable for their disturbing implications.” It is well settled that where even a rank trespasser is in possession over a piece of property, the owner can only get back his possession in accordance with the procedure established by law and not by using brute force, for, that would be destructive of a civilized society governed by rule of law. If that was proper then it would be rule of Jungle and not rule of law that would permit every body to decide their right, title and interest own their own and obtain it by brute force which I am sure no one will dispute that it is antithesis of 7 the constitutional set up of which we profess. Similar matter had come up before this Court in the case of M/s Hindustan Petroleum Corporation Ltd. –v- The State of Bihar & ors. since reported in AIR 1996 Patna 163. His Lordship Justice A.K.Ganguly (as His Lordship was then) delivered the judgment after elaborate discussion of law in this regard. His Lordship also noted various judgments where in such reckless manner State had dispossessed persons of their peaceful possession. Courts directed immediate restoration of possession and imposed heavy cost. I need not refer to all those judgments as they have been discussed in detail in the said judgments which was not interfered with in appeal or by the Apex Court where respondents’ S.L.P. was dismissed. In view of the facts, as aforesaid I have no option but to do what the justice demand and duty commands, I direct the respondents including the respondent- Divisional Commissioner and the District Magistrate –cum- Collector, Gaya to restore the possession of the land and of the building along with all properties therein to the petitioner within 48 hours from the date of production of a copy of this order before the Circle Officer and/or the District Magistrate –cum-Collector, Gaya. They are also directed to ensure that all traces of State occupation of the said premises and uses thereof is obliterated . I direct Superintendent of Police,Gaya and the Inspector General of Police, Magadh Range to ensure proper and effective compliance of the order of this Court within the stipulated period as noted above. For the shameful manner in which this episode took place . I further direct the respondent- State to ensure that a 8 compensation of Rs. 5 lakhs is paid to the charitable institution aforesaid, payment of which shall be ensured by the District Magistrate-cum-Collector,Gaya within a period of fifteen days from today. With the above observations and directions this application stands disposed of. Singh (Navaniti Prasad Singh, J.)