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Prem Shankar Chaudhary v/s Special Officer, now President, Bihar State Board of Religious Trust

    Civil Revn. 1934 Of 2000

    Decided On, 30 August 2005

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE S.NAYER HUSSAIN

    For the Appearing Parties: B.N. Saxena, Sujata Jha, A.P. Jittu, Ranjan Kumar, Abbas Haider, Ajay Kumar, Mathu, Indu Bala Jha, Advocates.



Judgment Text

(1.) Heard learned counsel for the parties. The petitioner is plaintiff of Title Suit No. 370 of 1989 which was filed by Sarva Mangala Devi Trust (hereinafter referred to as 'the Trust' for the sake of brevity), through its Managing Trustee Prem Shankar Chaudhary alter serving notice under Section 28 of the Bihar Hindu Religious Trust Act, 1950 (hereinafter referred to as 'the Act' for the sake of brevity), against the Bihar State Board of Religious Trust (hereinafter referred to as 'the Board' for the sake of brevity) and its Special Officer (opposite parties Nos. 1 and 2) for declaration that the Trust is a private trust and is not a public charitable trust and the Board or its authorities had no jurisdiction to exercise superintendence or control over the Trust or to interfere with the management and administration thereof as the provisions of the Act had no application to private trusts.

(2.) The plaintiff-petitioner is aggrieved by the impugned order dated 4-7-2000 passed in the aforementioned Title Suit No. 370 of 1989, by which the learned Subordinate Judge-3, Patna City rejected his petition dated 30-10-1998 for directing the opposite parties to remove their locks put on the two wooden entrance gates of M/s. Gayatri Oil Mills located in the Dharamshala compound of the Trust.

(3.) Learned counsel for the petitioner has submitted that the Trust was a private trust managed by its trustees and the Board never interfered with the line of succession of the trustees, who were chosen from the descendants of the founder of the Trust from time to time. He has further stated that in 1946 some immovable properties of the Trust were given in lease for ten years by the trustees to the lessee which was extended for a further period of ten years as per the terms of the lease which finally expired in the year 1966, whereafter the trustees filed Title Suit No. 274 of 1966 for ejectment of the lessee, which was decreed by the trial Court on 13-11-1976 with damages etc. and thereafter the lessee lost in all the appeals filed by him against the said decree.

(4.) Learned counsel for the petitioner also averred that three of the then trustees of the Trust were won over by the said lessee and hence they acted against the interest of the Trust and encouraged

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the tenants to pay rent to the lessee even after the said decree and hence they were removed by the Trust and finally delivery of possession was affected in favour of the Trust in Ex. Case No. 24 of 1977, but the said removed trustees, being aggrieved by their removal as well as by the ejectment of the lessee, contacted the Board with frivolous assertions, on the basis of which the Board issued notice to the petitioner and the Minister Religious Trust called for the record of the Trust through the Department of Law for the purpose of changing the Managing Committee of the Trust, although they had no jurisdiction to interfere with the control and management of the private trust.

(5.) Learned counsel for the petitioner further stated that in the above circumstances he filed the said suit, namely, T. S. No. 370 of 1989, but the defendants, namely, the Board and its authority, did not file their written statement for several years and in the meantime the petitioner filed an injunction petition for restraining the said defendants from interfering with the functioning and management of the Trust, whereupon the Board although gave its undertaking on 13-8-1990 (Annexure-1) but did not file its show cause and hence the learned Court below by its order dated 28-8-1990 (Annexure-1/A) directed the defendants to maintain status quo till the disposal of the title suit. Learned counsel for the petitioner also stated that much later the defendants (the Board and its authority) filed their written statement and also filed show cause on 18- 9-1991 pressing it for rehearing the injunction matter, whereafter it was reheard and by order dated 17-2-1992 (Annexure-1/B) the Court below directed both the parties to maintain status quo, which was affirmed by order dated 4-4-1994 (Annexure-1/C), by which defendants' prayer for vacating the said order was rejected.

(6.) It is further case of the petitioner that after loosing in injunction matter the defendants filed a petition for appointment of receiver for the Trust properties, but the learned Court below rejected the same by order dated 7-5-1994 (Annexure-2), which was challenged by them in M.A. 244 of 1994 and this Court by order dated 3-5-1996 (Annexure-2/A) dismissed the said appeal and directed the Court below to dispose of the defendants' application raising the question of maintainability as preliminary issue within six weeks of receipt of that order. The said application of the defendants dated 26-8-1994 challenging the maintainability of the suit was allowed and the suit Was dismissed on 24-7-1996 as not maintainable on the preliminary issue of res judicata. The said order of the learned Court below was challenged by the plaintiff-petitioner in C.R. No. 1421 of 1996, which was admitted on 27-8-1996.

(7.) Learned counsel for the petitioner submitted that taking advantage of the dismissal of the suit and without waiting for the final decision in the civil revision, the defendants (opposite party Nos. 1 and 2) issued letter dated 7-9-1996 (Annexure-3 series) superseding the petitioner's Managing Committee and appointed the Sub-divisional Magistrate, Patna City (opposite party No. 3) as temporary trustee of the Trust under Section 33 of the Act directing the petitioner to hand over the chatge of the Trust to him. The petitioner along with other trustees challenged the said order of the Board in CWJC No. 9194 of 1996 in which order of status quo was passed by this court on 18-9-1996, which was made absolute on 9-4-1997 {Ah-nexure-4) while admitting the writ case and directing it to be heard along with the aforesaid civil revision; Finally both the said cases were heard together and were allowed by this Court on 29-10-1997 (Annxre-5), by which the order of the; Court belt>w dated 24-7-1996 was set aside after "holding that the title suit was maintainable and was not hit by the principle of res judicata as in the previous eviction case (T.S. 274 of 1966) there was no finding of the Court that the Trust was not a private trust and was a public trust governed by the Act, which question was to be decided in the instant suit. This Court by the said order also quashed the order of the Board dated 7-9- 1996 superseding the petitioner's Committee as the power of supersession was exer - cised for the only reason that the petitioner had filed a suit before the competent civil Court for a declaration that it was a private trust and not a public trust in which the Board can interfere or in which the Act can be made applicable.

(8.) Against the aforesaid order passed in CWJC No. 9194 of 1996 the defendant- Board filed L.P.A. No. 1548 of 1997 in which an ex parte order was passed on 7-8-1998 staying the operation of the order dated 29-10-1997 passed in the writ case. Learned counsel for the petitioner also averred that immediately after the said order of stay the defendants-Board (opposite party Nos. 1 and 2) directed the Sub-Divisional Magistrate, Patna City on 8-8-1998 to take charge of the Trust in compliance of its earlier order dated 7-9-1996, whereafter the said S.D.M. on 10-8-1998 formed an Ad hoc Committee for the Trust and on 13-8-1998 forcibly broke the locks of the Trust premises, assaulted the watchman, ransacked the office and locked Gayatri Oil Mills situated on a piece of Trust land given on lease to the pe- titioner decadeis back by the then trustee. It is further stated that against the said action of the opposite parties the plaintiff-petitioner filed a petition on 8-9-1998, which was later numbered as Misc. Case No. 24 of 2000, for initiating a proceeding of contempt against the opposite parties for taking the aforesaid steps from 8-8-1998 to 13-8-1998 violating the order of status quo passed in the suit earlier, which became effective after revival of the suit by order of this Court dated 29-10-1997 passed in Civil Revision No. 1421 of 1996. The petitioner's learned counsel aso stated that the said contempt matter as well as the suit is still pending as [they arr delayed by the opposite parties who are filing frivolous petition in the Court below including transfer petition, thus making a mpckery of the order of status quo passed by the, Court below.

(9.) Learned counsel for the petitioner submitted that in the aforesaid circumstances, he filed a petition in the Court below on 30-10-1998 for directing the opposite parties (the defendants, the then S.D.M. and the members of the Ad-hoc Committee formed by him) to remove the locks put by them on the gate of M/s Gayatri Oil Mills during the period when the order of status quo passed by the Court below was fully effective. To the said petition of the plaintiff, the defendants-opposite parties filed a rejoinder stating that the said petition was not maintainable and was fit to be dismissed. Learned counsel for the petitioner submits that without considering the aforesaid facts and circumstances of the case the learned Court below passed the impugned order rejecting the petition filed by the plaintiff-petitioner and hence the said order was illegal, arbitrary and perverse.

(10.) On the other hand, learned counsel for the opposite party Nos. 1 and 2, namely, the Board and its Executive Officer stated that opposite party Nos. 3 to 11 were not defendants in the suit but the plaintiff-peti tioner wrongly included them in the petition filed in the Court below for contempt of Court and also in the petition dated 30-10-1998 filed for removal of the locks and only on its basis the petitioner has impleaded them in this civil revision also, hence no order can be validly passed against them. He further submitted that the suit was not maintainable as it has already been held by this Court in the case of Rai Mathura Prasad v Special Officer, Bihar Hindu Religious Trust Board reported in AIR 1984 Patna 227 that the Trust in question was a public trust and also because the said trust was registered in the Board in 1956 under Section 34 of the Act and the then trustees submitted return and paid contributions till 1988.

(11.) Learned counsel for opposite party Nos. 1 and 2 further averred that L.P.A. No. 1548 of 1997 was not dismissed on merit rather it was dismissed on 18-5-2000 (An-nexure 12) only because the said letters patent appeal and the writ, out of which it had arisen, was with respect to a temporary arrangement, whereas a permanent scheme dated 22-9-1999 had come into force which governed all the trusts under the Board including the petitioner's trust. He further claimed that the said scheme was challenged by the petitioner before the District Judge, Patna in Misc. Case No. 211 of 1999, but the same was rejected and the said permanent scheme was affirmed. He also stated that the Board and its functionaries never disobeyed any order of the trial Court and have been acting as per the orders passed by the trial Court as well as the High Court and the Ad hoc Committee was appointed and took possession of the Trust only when the suit was dismissed and no order was passed in the civil revision by then. He also stated that the Oil Mill in question was completely vacant and locks were put only to keep the properties safe as the articles kept in the campus were not verified. He further referred to paragraph 6 of the counter affidavit in which details of the formation of the Trust and its functioning at various stages were described and details of the suits and proceedings were also given. He also averred that after the Amendment of 2002 in the Code of Civil Procedure this civil revision is not maintainable, specially in view of the decision of the Hon'ble Apex Court in the case of Shiv Shakti Co-op. Housing Society, Nagpur v. Swaraj Developers reported in (2003) 6 SCC 659 : (AIR 2003 SC 2434). Hence, he submitted that the impugned order of the learned Court below is legal, proper and requires no interference.

(12.) Learned counsel for opposite party Nos. 3 to 5 and 7 to 9 have submitted that opposite party Nos. 3 to 11 are the members of the Ad-hoc Committee appointed at the instance of the Board vide its order dated 8-8-1998 and they have supported the claim of opposite party Nos. 1 and 2 and justified its action and steps taken with respect to the trust and also averred that they had never disobeyed any order of either the lower Court or of this Court and hence there was no occasion for the Court below to allow the frivolous petition of the plaintiff-petitioner.

(13.) After hearing the learned counsel for the parties and after perusing the materials on record, it is not in dispute that the defendants had lost in the matter of receivership as well as in the matter of injunction and that order had been passed_ by the learned Court below directing both the parties to maintain status quo in 1992 and 1994. It is also not in dispute that the opposite parties took the possession of the Trust properties and put their locks on the Oil Mill premises in September, 1998 only due to the dismissal of the suit on 24th July, 1996 and temporary arrangement made by the Board on 7th September, 1996. It is also not in dispute that temporary arrangement made by the Board on 7-9-1996 also automatically came to an end in September, 1999 when a permanent scheme was adopted. It is also not in dispute that C.R. No. 1421/ 1996 filed by the plaintiff-petitioner against the order of dismissal of the suit was allowed on 29-10-1997, whereafter the suit and the orders passed therein had revived and the said order of this Court was never challenged and had become final.

(14.) It further appears from the record of the case that in L.P.A. 1548/1997 only the order passed in CWJC No. 9194/1996 was temporarily stayed on 7-8-1998 but no order was passed for stay of the order passed in C.R. No. 1421/1996 regarding revival of the suit. Hence the suit having revived on 29-10-1997 and the orders passed in the suit earlier having become effective, the Board was clearly not justified in passing any order or taking any steps on 8/10-8-1998 or thereafter with respect thereto. Even the above mentioned letters patent appeal filed against the writ case was dismissed on 18-5-2000 as infructuous on the ground that the Board had framed a permanent scheme on 22-9-1999 taking back the earlier scheme, hence neither interlocutory order nor the final order passed in the said letters patent appeal had any effect on the proceeding or orders in the title suit and the Board had clearly took undue advantage of the said orders passed in the letters patent appeal and took steps which it was not entitled to in View of the specific orders passed in the title suit and consequently the staps taken by the Ad hoc Committee consisting of opposite party Nos. 3 to 11 cannot be held to be legal and valid. In the said circumstances, all the aforesaid steps taken by the opposite parties have to be retraced, specially when the order of status quo passed by the civil Court of competent jurisdiction was in operation on the date when those steps were taken by the opposite parties or the orderswere passed by the Board and its authorities.

(15.) So far the new permanent scheme framed by the Board 6n 22-9-1999 is concerned, the Board can take fresh steps in accordance thereof after the question regarding the status of the Trust is decided in the suit. So far the question of maintainability of the suit is concerned, it has already been held by this Court in its order dated 29-10-1997, while allowing Civil Revision No. 1421 /1996, that in the case of Rai Mathura Prasad (supra) reported in AIR 1984 Patna 227 the judgment debtor had questioned the authority of the Special Officer of the Trust to pursue the execution case after the original decree-holder had left taking interest and in those circumstances this Court had held that the Special Officer should continue the execution case and was rightly added as party in the execution case but in the said suit or appeal there was no finding that the Trust in question was a public trust governed by the Hindu Religious Trust Act and not a private trust. Hence when this matter had not been decided earlier and has been raised for the first time before this Court by the plaintiff-petitioner, this Court vide its order passed in the aforesaid C.R. No. 1421/ 1996 directed the learned trial Court to decide the suit on merit expeditiously. Hence, in my view, there is no occasion now for this Court to again go into the questions of maintainability as the suit has to be decided on its merit in accordance with the earlier order of this Court.

(16.) So far the dispute between the parties with respect to the question as to whether the Trust in question is a private trust and as to whether the provision of the Act is attracted in the facts and circumstances of this case is concerned, in my view they are mixed questions of fact and law and in order to decide the nature of the Trust, both oral and documentary evidence will be required from both the sides before the Court comes to a definite finding on such questions of fact. Hence the Board before invoking its jurisdiction and authority under various provisions of the Act has to prima facie decide as to whether the Trust is a public trust, but all such decisions and acts of the Board will always be subject to the decision of a civil Court of competent jurisdiction. This view finds support from a decision of this Court in the c'ase of Mahanth Ram Shankar Das v. Bihar State Religious Trusts Board reported in (1998) 3 Pat LJR 218 : (AIR 1999 Patna 55). Hence when the matter regarding the nature of the Trust was pending before the civil Court of competent jurisdiction, which had already passed orders of status quo, there was no occasion for the Board or its authorities or its appointees to take such steps and violate the orders passed by such Court, nor can such steps or actions be legally allowed to continue.

(17.) From perusal of the impugned order it is quite apparent that the learned Court below has not considered the aforesaid facts and circumstances and has failed in its jurisdiction to make the parties comply the order passed by the Court, specially when neither opposite party Nos. 1 and 2, nor opposite party Nos. 3 to 11 could show any valid justification for continuing their locks on the Oil Mill in question when the Trust is under the control of the plaintiff-petitioner. It is also apparent that the plaintiff- petitioner did not want to establish a new state of things differing from the state which existed on the date when either the suit was instituted or the order of status quo was passed, rather the plaintiff wanted only to restore the status quo as on the date on which the order of status quo was passed and to thwart the effort of the opposite parties tending to discredit the order of status quo passed by the Court.

(18.) Furthermore, when once an order has been passed by a competent civil Court which has jurisdiction to pass such order, it is the duty of all persons bound by it to obey the order so long as it stands and if parties are allowed to disobey such orders with impunity, as has been done in the instant case, it would consequently tend to the subversion of orderly administration of the judicial system. The duty to obey the orders of the civil Court of competent jurisdiction is not only cast upon the private parties, but the duty to obey is all the more imperative in the case of the authorities of the State. Corporations and Boards etc. otherwise there is bound to be a conflict between one branch of the polity or the organised society, namely, the Executive, and another branch, namely the Judiciary. Furthermore, if such cases of disobedience are left unchecked, then consequently the orders of the Courts of Law would cease to have any meaning and effect and the judicial power itself would become a mockery. This view also finds support from a decision of the Hon'ble Apex Court in the case of State of Bihar v. Rani Sonabati Kumari reported in AIR 1961 SC 221. Hence, it was a duty of the learned Court below to see that the orders passed by the trial Court is put to effect and nobody is permitted to violate any such order or to continue such violation.

(19.) So far the question of maintainability of this civil revision is concerned, the Hon'ble Apex Court has specifically held in the case of Neelakantan v. Mallika Begum, reported in (2002) 2 SCC 440 : (AIR 2002 SC 827) that in cases where finding is recorded by Courts below without any legal evidence on the record or on misreading the evidence or suffers from any legal infirmity which materially prejudices the case of one of the parties or the finding is perverse, it would be open for the High Court to set aside such finding and to take a different view. In another decision of a Bench of three Hon'ble Judges, the Hon'ble Supreme Court in the case of Sadhana Lodha v. National Insurance Company Limited, reported in (2003) 3 SCC 524 : (AIR 2003 SC 1561) has also held that only in such cases where remedy for filing civil revision is expressly barred by State enactment a petition under Article 227 of the Constitution would lie. Hence where there are such perversities in the findings and such legal infirmities in the impugned order which materially prejudices the case and leads to clear violation oflaw and abuse of the process of the Court, the High Court has to interfere under its revisional jurisdiction to uphold the dignity of legal procedure and proper functioning of the judicial system. Furthermore, Section 115 of the Code of Civil Procedure specifically provides that where the subordinate Court fails to exercise a jurisdiction vested in it or where it has acted in exercise of its jurisdiction illegally or with material irregularity, this Court can interfere in its revisional jurisdiction. Here in the instant case the lower Court has not only failed to exercise the jurisdiction vested in it but has also failed in its basic duty to uphold the dignity, respectability and effectiveness of the orders and proceeding of the Court of Law. Hence, this civil revision is maintainable.

(20.) In the aforesaid facts and circumstances, the impugned order is set aside and the claim of the plaintiff-petitioner raised in his petition dated 30-10-1998 is allowed and the learned Court below is directed to take steps in that regard immediately. So far opposite parties Nos. 3 to 11 are concerned, they admittedly have no personal claim over the Mill and are mere creatures of the Board and its authority, namely, opposite parties Nos. 1 and 2 and hence order can very well be given to the Board and its authority to comply with the specific order of this Court, failing which appropriate steps can also be taken in that regard.

(21.) With the aforesaid directions, this civil revision is allowed. Revision allowed
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