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Risabh Ruia v/s Nirmal Mukherjee & Others


Company & Directors' Information:- P N MUKHERJEE AND COMPANY PVT LTD [Active] CIN = U22219WB1993PTC059560

Company & Directors' Information:- RUIA AND RUIA PRIVATE LIMITED [Active] CIN = U51900MH1969PTC014329

Company & Directors' Information:- B. MUKHERJEE & COMPANY PVT. LTD. [Strike Off] CIN = U25209WB1992PTC055755

Company & Directors' Information:- A MUKHERJEE & CO PVT LTD [Active] CIN = U22219WB1940PTC013674

Company & Directors' Information:- A K MUKHERJEE & CO PVT LTD [Strike Off] CIN = U51505WB1957PTC023546

Company & Directors' Information:- RUIA AND COMPANY PRIVATE LIMITED [Active] CIN = U74999MH1960PTC011837

Company & Directors' Information:- B K MUKHERJEE CO PVT LTD [Strike Off] CIN = U70109WB1921PTC004278

Company & Directors' Information:- J N MUKHERJEE & CO PVT LTD [Active] CIN = U51909WB1943PTC011346

Company & Directors' Information:- S N MUKHERJEE PVT LTD [Active] CIN = U74940WB1941PTC014185

Company & Directors' Information:- P K MUKHERJEE & CO PVT LTD [Strike Off] CIN = U51420WB1939PTC009657

Company & Directors' Information:- A N MUKHERJEE PVT LTD [Strike Off] CIN = U36992WB1949PTC017824

Company & Directors' Information:- MUKHERJEE & MUKHERJEE PVT LTD [Strike Off] CIN = U70101WB1960PTC024754

Company & Directors' Information:- H D MUKHERJEE & CO PVT LTD [Strike Off] CIN = U51109WB1947PTC015631

Company & Directors' Information:- N R MUKHERJEE PVT LTD [Strike Off] CIN = U27106WB1957PTC023649

Company & Directors' Information:- P MUKHERJEE AND CO PVT LTD [Strike Off] CIN = U99999DL1922PTC000090

    CO. No. 759 of 2017

    Decided On, 04 July 2019

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE BIBEK CHAUDHURI

    For the Petitioner: Aniruddha Chatterjee, Surya Prasad Chattopadhyay, Debabrata Roy, Advocates. For the Opposite Parties: Susenjit Banik, Loknath Ghosh, Kaushik Chatterjee, Suparno Ghosh, Advocates.



Judgment Text

1. The petitioner has invoked the jurisdiction of this court under Article 227 of the Constitution of India to challenge legality, validity and propriety of an order being order No.36 dated 11th January, 2007 passed by the learned Additional District Judge, South 24 Parganas at Alipore in Misc Case No.933 of 2010.

2. Reasons for filing the instant application are as follows:-

3. The Shebaits of Sree Sree Laxmi Narayan Jew and Sree Sree Anandamoyee Kalimata established and installed at premises No.43, Akhil Mistry Lane filed an application under Section 34 of the Indian Trusts Act praying permission to sale the property of the deity measuring about 3 khatas of land with pucca asbestos shed structure situated at premises No.23 Badan Ray Lane within PS Baleghata before the learned District Judge, South 24 Parganas at Alipore. The said application was registered as Misc Case No.933 of 2010. By an order dated 5th September, 2011, the learned District Judge allowed the said Misc Case No.933 of 2010. The petitioners/shebaits were permitted to sale out the above mentioned property in favour of the intending purchaser, petitioner herein, at a consideration price of not below Rs. 44,87,850/-.

4. The petitioners were directed to deposit the entire sale proceeds in term deposit scheme of any nationalised bank in the name of the deity represented by shebaits. The shebaits were also permitted to withdraw the interest accrued on such deposit on half yearly basis for seba puja of their family deities.

5. It is pertinent to mention here that though the said order was passed by the learned District Judge, South 24 Parganas on 5th September, 2011, till date the petitioner has not deposited the consideration money for purchasing the above mentioned property of the deity.

6. In the mean time, three other persons made an application in the said Misc Case No.933 of 2010 impleading the shebaits and the present petitioner as parties alleging, inter alia, that the present petitioner did not take any attempt to purchase the said property which the shebaits intended to sell to him in terms of order dated 5th September, 2011, passed by the learned District Judge, South 24 Parganas at a consideration price of Rs. 44,87,850/- (Rupees Forty Four Lakh Eighty Seven Thousand Eight Hundred Fifty) only. It is contended by the said petitioners that in the mean time almost nine years have elapsed and present market price of the said property is increased to Rs.90,00,000/-. The petitioners therefore wanted to purchase the said property at Rs. 90,00,000/- and prayed for modification of the order dated 5th September, 2011.

7. The learned District Judge, South 24 Parganas at Alipore took up the said application for hearing on 11th January, 2007 and altogether dismissed Misc Case No.933 of 2010 as not maintainable.

8. The petitioner being the intending purchaser of the said property of the deity from the shebaits at a consideration price of Rs. 44,87,850/- in terms of the order dated 5th September, 2011 has challenged the legality, validity and propriety of the said order.

9. Mr. Aniruddha Chatterjee, learned Advocate for the petitioner at the outset draws my attention to the order impugned. It is found from the said order that the learned District Judge, South 24 Parganas was of the view that as per the savings clause of Section 1 of Indian Trusts Act, a private debottor estate is excluded from the domain of Indian Trusts Act. Therefore an application under Section 34 of the said Act is not at all maintainable under the facts and circumstances of the case. The shebaits as manager of a private debottor estate is empowered to do whatever may be required for the benefit of the deities and debottor property. For the aforesaid purpose, permission of the principal Civil Court of the District under Section 34 of the Indian Trusts Act is not necessary.

10. It is submitted by Mr. Chatterjee that the impugned order is blatantly illegal and perverse. Misc Case No.933 of 2010 was finally disposed by the learned District Judge, South 24 Parganas permitting the shebaits to sale out a specific property of the deities to the petitioner by an order dated 5th September, 2011, and his successor in office cannot pass an order holding the entire proceeding of the said miscellaneous case as not maintainable. According to Mr. Chatterjee the learned District Judge, South 24 Parganas has no authority to pass any order on a disposed of case because on delivery of a final order, the court is not in sesion over the matter. According to Mr. Chatterjee, the impugned order is absolutely illegal and perverse and liable to be set aside.

11. Mr. Susenjit Banik, learned Advocate for the opposite party No.1-3, on the other hand submits that Section 1 of the Indian Trusts Act itself provides that nothing contained therein applies to public or private religious or charitable endowments. When the endowment was for a religious purpose and shebaits were entrusted to perform seba puja of the deities and manage the properties of the deities, they were trustees in respect of private religious trust or endowment. Therefore, the provision of Indian Trusts Act and more particularly, Section 34 of the said Act is not maintainable in such case. The shebaits are entitled to take independent decision with regard to management of the property including sale of the property of the deities for performance of sheba puja and overall benefit of the deities. In support of his contention, learned Advocate for the petitioner refers to a judgment of the Division Bench of the Court in the case of Moloy Kumar Das vs. Krishna Chandra Adhikari & Anr. reported in 2011 (3) CLJ (Cal) 201.

12. Mr. Kaushik Chatterjee, learned Advocate for the opposite party Nos.8 and 9, on the other hand submits that in the year 2010 all the shebaits were ad idem to sell the property to the petitioner at a consideration price of Rs. 45,870,850/-. On the prayer of all the shebaits, principal Civil Court of original jurisdiction in the District passed the order on 5th September, 2011 permitting the shebaits to sell out the property to the present petitioner. Thereafter about nine years have elapsed, but the petitioner did not take any step to comply with the said order dated 5th September, 2011. In the mean time, market price of the said property has been enhanced. Three persons of the locality have expressed their willingness to purchase the said property at a consideration price of Rs. 90,00,000/-. The Shebaits wanted to sale the property for the benefit of the deities. Though an order was passed on 5th September, 2011, the said order did not come to the benefit of the deities. In the mean time, some intending purchasers have expressed their desire to purchase the said property at a consideration price of Rs. 90,00,000/-. In a proceeding under Section 34 of the Indian Trusts Act, primary consideration of the court is to take care of the benefit of the deities. If the property which shebaits wanted to transfer by sale for augmentation of the income of the deities, it should be sold out at the highest bid quoted by subsequent intending purchasers.

13. In view of the savings clause contained in Section 1 of the Indian Trust Act, a private debottor trust is not governed under the said Act. therefore, Section 34 of the said Act has no manner of application and the shebaits cannot invoke the said provision seeking for opinion of the principal Civil Court of original jurisdiction in respect of the management of trust property. It is needless to say, that if an order is passed by a court of law without jurisdiction, such order is void-ab-initio. Such an order is not executable and a party cannot claim relief on the basis of such order. The settled principle of law in the matter of management of private debottor trust is that the shebaits as managers can take independent decision without referring a dispute for the opinion of the principal Court of Civil Jurisdiction.

14. However, while dealing with an application under Article 227 of the Constitution, this Court exercises supervisory jurisdiction over the subordinate courts, both in administrative and judicial matters. The Hon'ble Supreme Court in the case of State, Through Special Cell, New Delhi vs. Navjot Sandhu @ Afshan Guru & Ors reported in JT 2003(4) SC 605 detailed out the scope and ambit of the Supreme Court's power under Article 227 of the Constitution of India. It is stated below:-

i) The jurisdiction under Article 227 of the Constitution of India cannot be limited or fettered by any act of the State Legislature.

ii) The power must be exercised sparingly, only to move subordinate courts and Tribunals within bounds of their authority to see that they obey the law. The power is not available to be exercised to correct mere errors (whether on the facts or laws) and also cannot be exercised "as the cloak of an appeal in disguise".

15. Though the order dated 5th September, 2011 was passed by the learned District Judge, South 24 Parganas without jurisdiction, the present petitioner was allowed to purchase a portion of debottor property on the prayer of all the shebaits at a consideration price of Rs.44,87,850/-. It is also a matter of fact that since 2011, till date, the petitioner has not deposited any amount towards consideration money to purchase the said property as determined by the court. No explanation is provided by the p

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etitioner in this regard. It is needless to say that if in any order no time limit is prescribed, parties are duty bound to comply with the said order within the reasonable period of time. After a lapse of nine years, the petitioner cannot seek for benefit of the order and thereby try to enforce the order dated 5th September, 2011, which is held to be otherwise illegal, by invoking supervisory jurisdiction of this Court. 16. However, in the interest of justice, the petitioner is allowed to offer his rate of consideration price to the shebaits at prevailing market rate of the property. If the said rate is higher than what has been quoted by opposite party Nos.1-3, the shebaits will consider whether the petitioner deserves any preemptory right to purchase the said property over opposite party Nos.1-3. 17. The instant revision is accordingly disposed of on contest, without cost. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
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