IN THE HON'BLE HIGH COURT QF CHHATTISGARH AT BILASPUR M.A.NO, 5 \ of 20io SingleBench APPELLANT 3licant ,^' ^' RESPONDENTS XON-APPLICANTS Tejram Dewangan, aged about 51 years, son of Late Heerasingh Dewangan, Pujari & Manager/Sarvarakar, Ma Maharaaya Mandir, Kunihari, R/o. Patel Para, Durga Chowk Kunihari, Tahsil Dharadha, District Durg (C.G.) Versus U-) State of C.G. through Collector, Durg (C.G.) ^2) Registrar, Public Trust and Sub Divisional Officer, Durg, DistrictDurg (C.G.) ^—:3pRajuSahu, aged about 45 years, son of Shri Babulal Sahu, R/o. Shantinagar, Kumhari, Tahsil Dhamdha, District Durg (C.G.) Alleged Secretary, Public Trust, Ma Mahamaya Mandir, Kurahari, Tahsil Dhamdha, District Durg (C.G.j, APPEAL UNDER ORDER 43 RULE l(rl OF CODE OF CIVIL PROCEDURE HIGH COURT OF CHHATTISGARH AT BILASPUR MAN0.910F2010 Tejram Dewangan Vs. State ofC.G. & others ^ Post for pronouncement ofjudgment on .3 /03/2011. Sd/- N.K. Agrawal Judge 1 f ^ HIGH COURT OF CHHATTISGARH AT BILASPUR MAN0.910F2010 <© APPELLANT APPLICANT RESPONDENTS Tejram Dewangan VERSUS StateofC.G.&others NON-APPLICANTS Appeal under section 43 ofRule l(r) ofCode ofCivil Procedure fSB: Hon'ble Mr. N.K. Aearwal, J.) Present : Shri HB Agrawal, Sr. Advocate with Smt. Meera Jaiswal, Advocate for the appellant. Shri Rajendra Tripathi, Panel Lawyer for the State. Shri BP Sharma, Advocate for the respondent No. 3. JUDGMENT (Passedon^' /03/2011) 1. Vide order dated 12.11.2010, IXth Additional District Judge (FTC), Durg, dismissed the application filed by the appellant under. Order 39 Rule 1 & 2 ofCPC. Hence this appeal. 2. The 3 respondent applied for registration of tmst as public trust before the 2 respondent under Section 4 ofthe CG Public Tmst Act, 1951 (for short 'the Act') mentioning the suit property as property ofpublic trust. 3. The 2nd respondent vide order dated 03.05.2010 allowed the application filed by the 3 respondent for registration of tmst as public tmst. Vide memo dated 08.06.2010, the 2 respondent directed the appellant to hand over possession of temple property to 3rd respondent. The above memo was sent by the 2" respondent through Station Officer, PS Kumhari. 4. The appellant assailed the above order by filing a writ petition being W.P.(C) No. 2474/10 before this court. This court vide its 1N ^.-«-.-^-^., ^ M ^K''y'^\ • -' "^':^"<^^ ^ N i "T'wyj ^,, '^^y '^^s?^'" order dated 14.06.2010 granted interim relief of status quo with respect to possession ofthe temple property. By notice 05.07.2010, the appellant called in question the order passed by 2nd respondent. By reply dated 20.07.2010, the 3rd respondent denied the sole ownership and management of appellant over temple property. The Writ Petition filed by the appellant was withdrawn on 27.08.2010 with liberty to avail appropriate remedy. This court extended interim relief granted earlier for a further period of two weeks. The appellant preferred a Civil Suit against the respondents claiming relief of declaration and injunction; also filed an application for temporary injunction. According to the appellant, he is in possession and management of temple property which is a private trust; his parents had established the temple 70 years ago and since then appellant's family is continuously in possession/management of the temple and temple property, and are its owner. The source of maintenance of appellant's family is offerings received during Puja. The State authorities have never raised any objection regarding maintenance/ possession/construction of the temple by appellant's family, therefore, the order of 2 respondent registering the temple as public tmst is illegal; has no right or authority to direct appellant to hand over possession of temple property to 3 respondent. The respondents are putting pressure upon him with the help ofpolice administration. ^"%,. '^'f.,./ 9. The trial court found prima-facie case in appellant's favour, but dismissed the application. The trial court held: on the basis of alleged agreement between the appellant and 3 respondent in presence of 2 respondent in Police Station, Kumhari, wherein it has been mentioned, "appellant and 3 respondent both willjointly manage the affairs oftemple property till decision of suif\ on the date of suit the appellant alone was not in possession of the property m question. 10. Shri HB Agrawal, leamed senior counsel appearing for the appellant would submit : the appellant and his family is in possession ofthe property since 70 years; the respondents have no right or title over it; the order of 2 respondent registering the tmst as public trust is without jurisdiction; direction given by 2nd respondent to appellant to hand over possession oftemple property to 3 respondent is without authority of law; this court, by way of interim relief, saved the appellant's possession and compromise obtained in the Police Station in presence of State authorities is of no consequence; the appellant is still in peaceful possession and management of the temple property, and in view of above circumstances, the court below has erred in dismissing the appellant's application for grant of temporary mjunction and therefore the appeal deserves to be allowed. 11. On the other hand, Shri BP Sharma, leamed counsel appearing for 3rd respondent, by referring the order of 2nd respondent and evidence adduced before him, would submit: by no stretch of imagination it can be said that the nature of tmst is private tmst. Evidence recorded before the 2 respondent would reveal the temple was constmcted with the aid and help ofpublic, the public at large have been regularly worshiping in the temple as a matter of course and they can also take part in festivals and ceremonies continuously in the temple as a matter ofright and the offerings are being made by the public in the usual course. In the above circumstances, it is also safe to presume that temple in question is a public temple, In support of his contention reliance has been placed upon the judgment of Supreme Court in case of Goswami Shri Mahalaxmi Vahuji v. Ranchhoddas Kalidas and others1. 12. Shri Sharma further submits that vide compromise dated 06.10.2010, both the parties are in possession and management of the property; receipt of Jyoti Kalash are being issued in the name of public tmst registered by 2 respondent; 3 respondent is properly maintaining the accounts; the appellant is as usual working as a Pujari; Donation Slips are being issued by 3 respondent and in such circumstances, the appellant alone not being in possession of the temple property, the trial court has rightly dismissed the application filed by the appellant and has rightly refused to grant temporary injunction in appellant's favour. He would further submit, to avoid mismanagement of temple property, it is necessary it be managed by a registered body, inasmuch as, registered body can manage the temple more effectively and in a better way. 13. I have heard the counsel appearing for the parties, peruse the order impugned and records ofcourt below. 1969 (2) SCC 853 rA^ 14. It is not in dispute, before registration ofpublic tmst vide order dated 03.05.10 passed by the 2nd respondent, the appellant was in management and possession of the temple property. During registration proceedings, the appellant raised objections; filed a writ petition and obtained status quo order and then filed instant suit. 15. Undisputedly, the appellant is not a trespasser. The respondents have not taken any legal steps in order to obtain possession of temple property or for removal of appellant from its management. Merely a new trust is registered as public trust with respect to property in question, the respondents have no right to interfere in appellanfs possession. 16. Even ifthe respondent proceeded on the footing that the trust was a public trust, it should have been taken appropriate legal action for getting its possession. Merely registration of trust as public trust will not authorize 2 respondent to direct appellant to hand over possession in favour of such tmst. The State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorizes their acts. The executive actiontaken in this case by the State and its officers was destructive ofthe basic principle ofrule oflaw. 17. In almost similar situation, the Supreme Court in case ofBishan Das & others v. State ofPunjab & others2 has held : the State or its executive officers cannot interfere with the rights ofothers unless ' AIR 1961 SC 1570 •-...^ they can point to some specific rule of law which authorizes their acts, and further obser^ed in paras llj3&14as under: 11. We consider that both these contentions are unsound and the petitioners have made out a clear case of the violation of their fundamental rights. There has been some argument before us as to the true legal effect of the sanction granted in 1909 to Raniji Das subject to the conditions adverted to earlier: whether it was a lease in favour of the firm Faquir Chand Bhagwan Das; whether it was a licence coupled with a grant or an irrevocable licence within the meaning of Section 60(6) of the Easements Act, 1882. These are disputed questions which we do not think that we are called upon to decide in the present proceeding. The admitted position, so far as the present proceeding is concemed, is that the land belonged to the State; with the permission ofthe State Ranyi Das, on behalf of the joint family firm of Faquir Chand Bhagwan Das, built the dhannasala, temple and shops and managed the same during his life time. After his death the petitioners, other members ofthe joint family, continued the management. On this admitted position the petitioners cannot be held to be trespassers in respect of the dharmasala, temple and shops; nor can it be held that the dharmasala, temple and shops belonged to the State, in'espective of the question whether the trust created was ofa public or private nature. A tmstee even of a public trust can be removed only by procedure known to law. He cannot be removed by an executive, fiat. It is by now well settled that the maxim, what is annexed to the soil goes with the soil, has not been accepted as an absolute mle of law of this country; see Thakoor Chunder Parmanick v. Ramdhone Bhuttacharjee; Beni Ram v. Kundan Za//-and Narayan Das Khettry v. Jatindranath. ThesG decisions show that a person who bona fide puts up constmctions on land belonging to others with their permission would not be a trespasser, nor would the buildings so constmcted vest in the owner of the land by the application ofthe maxim quicquid plantatur solo, solo cedit. It is, therefore, impossible to hold that in respect of the dharmasala, temples and shops, the State has acquired any rights whatsoever merely by reason oftheir being on the land belonging to the State. If the State thought that the constructions should be removed or that the condition as to resumption ofthe land should he invoked, it was open to the State to take appropriate legal action for the purpose. Even if the State proceeded on the footing that the tmst was a public tmst it should have taken appropriate legal action for the removal of the tmstee as was opined by the State's Legal Remembrancer. It is well recognised that a suit under Section 92 of the Civil Procedure Code, may be brought against persons in possession ofthe tmst property even ifthey claim adversely to the tmst, that is, claim to be owners of the property, or against persons who deny the validity of the tmst. 13. As to the second argument, it is enough to say that it is unnecessary in this case to determine any disputed questions i %&. '••~i..,.A^.l: ^.^ '%,.. ~^y' ^^.^•^ of fact or even to detennine what precise right the petitioners obtained by the sanction granted to their finn in 1909. It is enough to say that they are bona fide in possession of the constmctions 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. 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 ofthe basic principle ofthe rule oflaw. The facts and the position in law thus clearly are (7) that the buildings constmcted on this piece of Govemment land did not belong to Govemment, (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 l^e dispossessed, if at all, only in pursuance ofa decree ofa Civil Court obtained in proceedings properly initiated. In these circumstances the action of the Govemment 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 mle of law apart from what might legitimately and reasonably be expected from a Goveniment fiinctioning in a society govemed by a Constitution which guarantees to its citizens against arbitrary invasion by the executive of peaceful possession ofproperty. As pointed out by this Court in Wazir Chand v. State of Himachal Pradesh, 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. State of Bihar-this Court said that nothing is more likely to drain the vitality from the rule oflaw 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 tmst property it is difficult to see how the Municipal Committee, Bamala, can step in as tmstee on an executive determination only. The reasons given for this extraordinary aetion are, to quote what we said in Sahi5 case, remarkable for their disturbing implications. 18. The Supreme Court has further held in case of Meghmala and others v. G. Narasimha Reddy and others : illegal forcible eviction ' 2010 (8) SCC 383 ^^^'' ..'" ^^.. ^"^' T^~ from land even by Govemment by executive order is not permissible. 19. The trial court itself found prima-facie case in appellant's favour. The respondents cannot be permitted to interfere in his possession without taking recourse of law. 20. Considering the above facts and the fact that this court in W.P.(C) No. 2474/10 had granted status quo order in appellant's favor and also this court vide its order dated 23.11.2010 granted status quo order in respect of possession of temple property in appellant's favour, in the considered opinion ofthis court, the appeal deserves to be and is hereby allowed. 21. The parties are directed to maintain status quo with regard to possession of the suit property as it obtains on 14.06.2010. However, in the interest of justice, the appellant is directed to maintain proper accounts ofreceipts ofofferings and gifts and sent a copy of same to the 2 respondent once in a month till decision ofthe suit. 22. Looking to the controversy, it is expected that the trial court shall decide the suit expeditiously without being influenced by any of the obser/ations made hereinabove. No order asto costs. Sd/- N.K. Agrawal Judge Sahu