IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 4945 of 2015 --- Sidu Kanu Siksha Niketan Trust, Dimna Nagar, Jamshedpur through its Chairman Mangal Murmu --- ---- Petitioner Versus 1. The State of Jharkhand 2. Deputy Commissioner, East Singhbhum, Jamshedpur 3. The Additional District Magistrate, Law and Order, East Singhbhum, Jamshedpur 4. Sub Divisional Magistrate, Dhalbhum, Jamshedpur 5. District Superintendent of Education – cum – Incharge Magistrate, East Singhbhum, Jamshedpur 6. Sonaram Majhi 7. The Additional Deputy Commissioner, East Singhbhum, Jamshedpur --- --- Respondents --- CORAM:The Hon’ble Mr. Justice Aparesh Kumar Singh For the Petitioner: M/s Sanjay Kumar, Rajeev Lochan, Advocates For the Resp – State: Mr. Sharad Kaushal, JC to A.A.G. For the Resp No. 6: Mr. Indrajit Sinha, Advocate --- 07/ 22.03.2017 Heard counsel for the parties.
2. Petitioner aggrieved by an office order dated 14.09.2015 issued by the Respondent No. 4 - Sub Divisional Magistrate, Dhalbhum, Jamshedpur bearing Memo No. 3260 (Annexure-13), has approached this Court. By the impugned order, District Superintendent of Education, East Singhbhum, Jamshedpur was deputed as Executive Magistrate to maintain law and order with the assistance of police force in the matter of removal of unauthorized occupation of certain rooms of hostel and office of Sidu Kanu Siksha Niketan Trust, Baliguma, Mango, Jamshedpur, acting on the report of the Additional Collector, East Singhhbum, Jamshedpur vide letter dated 4570 dated 24.08.2013 and also letter of the Respondent No. 4 itself dated 18.07.2014. The impugned order refers to some dispute between the petitioner and their associates in trying to disrupt the functioning of the school. It conveys the intent to maintain law and order and educational environment in the school. The Respondent No. 6 is the person with whom there is a subsisting dispute over the trust created on 24.05.1984 over which, school is said to be existing.
3. Petitioner contends that the deponent of the writ petition is the chairman of the said Trust which runs Sidu Kanu Siksha Niketan Middle and High School, Dimna, Mango, Jamshedpur. It is the contention of the petitioner that by 2. Resolution dated 12.06.2011 and 04.12.2011, Board of Trustees was extended by inclusion of the deponent Mangal Murmu, Kshetra Mohan Tudu, Sandhya Kumari and Mona Tudu as Treasurer. Two of the Trustees were authorized to operate the bank account. Petitioner contends that after the death of Ganesh Sao, appointment of one Sandhya Sao was made as the President of the Trust by Resolution dated 20.02.2012. There are certain issues in relation to the suit property with M/s Tata Steel, referred to in the averment of the writ petition. Petitioner alleges interference of Respondent No. 6 in the Trust fund. It also alleges that inclusion of Respondent No. 6 in the Board of Trustees was illegal. On such knowledge, the United Bank of India was also requested to stop the transaction by any Member of the Trust. Petitioner contends that the Board was reconstituted on 07.08.2013 and registered. A Title Suit No. 95/2013 was preferred before the Learned Civil Judge, Junior Division, Jamshedpur, praying for permanent injunction against the defendant from operating the bank account of the Trust or to do any detrimental act against the welfare of the Trust. According to the petitioner, said suit is still pending. Petitioner also contends that another suit was filed by Kshetra Mohan Tudu against the Respondent No. 6, seeking permanent injunction upon the Respondent No. 6 from interfering with the possession of the plaintiff and reconstitution of the body of the Trust. That Title Suit No. 161/2013 is also pending for adjudication before the Learned Civil Judge, Senior Division-6, Jamshedpur. He also contends that the Title Suit No. 125/2013 has been filed by the petitioner for declaring reconstitution of the Trust dated 30.10.2012 as null and void and that, no right, title and interest over the Trust property, could accrue on the basis of such Trust Deed. They also prayed for restraint by way of injunction against the Respondent from managing the immovable properties of the Trust from its income. That suit is still pending before the Learned Civil Judge, Junior Division-I, Jamshedpur. Petitioner is also aware of Title Suit No. 21/2015 filed by the Respondent No. 6 against the petitioner and another person seeking cancellation of Trust Deed No. IV1114dated 07.08.2013 as being illegal.
3. Consequential relief have also been prayed for in the said suit, which is enclosed as Annexure-12.
4. In these factual background, the impugned order has been assailed by the petitioner alleging lack of jurisdiction of the Respondent No. 4 in appointing Executive Magistrate for the purposes of vacating the illegal possession of the petitioner from the school room, hostel and office with the help of police force.
5. Respondent No. 6 has appeared on notice and contested the prayer made herein with the preliminary objection that the prayer for restoration of possession is not maintainable in the writ jurisdiction of this Court. It lies within the domain of section 6 of the Specific Relief Act. The claim of the petitioner as the Chairman of the Trust, has also been questioned as false. Respondent No. 6 contends that the Trust whose object was to provide higher education to young boys and girls of Mouza Baliguma, was reconstituted after death of the President Ganesh Shaw and his granddaughter Sandhya Kumari Shaw was appointed as the President and Sona Ram Majhi (Respondent No.
6) as the Secretary. The said Trust Deed was registered on 30.10.2012. Five persons were included in the Trust as co-opted Members which include the deponent of the petitioner, but due to anti-Trust activity, they were expelled on 08.06.2013 (Anexure-A). They have formed a parallel Trust in order to capture the property of the original Trust constituted on 23.02.1984. These persons started filing one after another criminal cases against the Respondent No. 6 and other Members of Trust enumerated at para-15 being G.R. Case No. 3212/2013 under sections 448, 427, 504 and 34 of the Indian Penal Code, G.R. Case No. 3214/2013 under section 406, 379 and 34 of the Indian Penal Code, G.R. Case No. 3213/2013 under sections 406 and 420 of the Indian Penal Code, G.R. Case No. 1512/2014 under sections 341, 323, 427, 506, 379 and 34 of the Indian Penal Code, G.R. Case No. 2045/2014 under section 379, 420, 406, 408, 437, 477, 120B, 506, 109 and 34 of the Indian Penal Code, G.R. Case No. 2095/2014 under sections 406, 419, 420, 467, 468, 471, 379, 506, 109, 323 and 34 of the Indian Penal Code and 4. G.R. Case No. 2402/2013 under sections 406, 420, 506 and 34 of the Indian Penal Code. All the criminal cases have however been found to be false during the investigation and final report has also been submitted. According to him, injunction prayed for in Title Suit No. 95/2013 against the Respondent No. 6, has been rejected by the Learned Trial Court and the suit is still pending. One Misc. Case No. 06/2014 preferred by the deponent of the petitioner Mangal Murmu for transfer of different suits to one Court, is pending before the Principal District Judge, Jamshedpur. Respondent No. 6 contends that the deponent of the writ petition Mangal Murmu has forcibly occupied the school premises and the matter was reported to Ulidih Police. Upon representation of the Respondent No. 6, the matter was inquired through Additional Deputy Commissioner, Jamshedpur who came to the conclusion that reconstituted Trust dated 30.10.2012 by the Respondent No. 6, is genuine and protection need be granted to the original Trustee. That has formed the basis for deputation of police force on the direction of the Respondent No. 4 to maintain law and order in the school. According to the Respondent No. 6, the order was acted upon on 18.07.2014 when illegal occupation of the petitioner was removed from the classroom of the school. This is the background in which Respondent No. 6 has defended the impugned action. Respondent No. 6 has also relied upon a judgment rendered by the Hon'ble Supreme Court in the case of M/s Hindustan Steel Limited, Rourkela Versus Smt. Kalyani Banerjee and others [(1973) 1 SCC273 para-16 thereof] in support of his contention that the proceedings by way of a writ were not appropriate in a case where the decision of the Court would amount to a decree declaring a party's title and ordering restoration of possession. The proper remedy in such a case is by way of a title suit in a Civil Court and the alternative remedy of obtaining relief by a writ of mandamus or an order in the nature of mandamus could only be had if the facts were not in dispute and the title of the property in dispute was clear. Counsel for the Respondent No. 6 has therefore sought to sustain the preliminary objection on the maintainability of the prayer made in the 5. instant writ petition.
6. Counsel for the Respondent State has harped upon the averments in their counter affidavit which also discloses serious civil and criminal cases between the parties. It refers to the report of Additional Deputy Commissioner, Jamshedpur, as per which, reconstituted Trust dated 30.10.2012 is genuine and is the basis for according protection to the original Trustees. According to them, the inquiry conducted through the Police also reveals that the deponent of the writ petition and his associates after their expulsion from the Trust, forcibly occupied the rooms of the ground floor of the school. Accordingly, Executive Magistrate was deputed to remove the illegal possession of Mangal Murmu and to maintain law and order. According to them, in compliance of the order dated 18.07.2014 (Annexure-C), illegal occupation of Mangal Murmu was removed from the office room of the school and he did not raise any objection, rather silently accepted the removal. However, on representation made by the Respondent No. 6 to provide sufficient protection in the school, the impugned order dated 14.09.2015 was passed. Counsel for the State Respondent submits that the parties are litigating in several suits in respect of Trust property as well.
7. Learned counsel for the petitioner, in reply, submits that the impugned action of the Respondent No. 4 is without jurisdiction and cannot be sustained in the eye of law. He submits that the petitioner has been forcibly dispossessed without any authority of law and without any adjudication by any competent Court on the illegality or validity of his occupation in the Trust property i.e. school in question. Therefore, if the order is without jurisdiction, it may be set aside and consequent relief may be granted. Counsel for the petitioner has also relied upon a judgment rendered by the Patna High Court in the case of Dharmendra Kumar Yadav Versus state of Bihar through the Chief Secretary, Govt. of Bihar, Patna [2010 (1) PLJR681, wherein without any proceeding, student and Management of one charitable Institution, running a school for destitute children by the efforts of one 6. Mine Haha, a renowned Singer of Japan and others, were thrown on the street by the State Officials on the plea that the petitioner was the land grabber running the Institution on the grabbed land in the name of the school without any legal or valid document. When it came to the knowledge of the authorities that such action were being undertaken without any legal or valid document, the impugned action of removal of encroachment was justified.
8. I have considered the submissions of the counsel for the parties and their contentions, as borne on record.
9. The fact of the matter is that the deponent of the writ petition and the Respondent No. 6 are litigating amongst themselves over the same Trust property in different civil suits. There were criminal cases instituted by the deponent of the writ petition Mangal Murmu and his associates against the Respondent No. 6 which are said to have been closed on finding no incriminating acts on the part of the said person. In any case, there was no justification on the part of the Respondent No. 4 to intervene in the matter of removal of alleged unauthorized occupation of one or the other person on the basis of administrative inquiry. At best, the deputation of Magistrate and police force could have been made to maintain law and order leaving the party to seek relief over their respective claims from the competent Court of law. The conflicting contentions of the parties however, do not lead to any clear impression about the rightful claim of one or the other person to the Trust and its property in question. They themselves are evidently in serious litigation over the claim of the Trust property. While action of the Respondent no. 4 cannot be justified on any count as being backed by the authority of law, but this Court in the circumstances discussed herein-above, does not consider it proper to direct restoration of possession to the petitioner, as prayed for, when the very basis of the claim, title, interest and possession of the Trust property is the subject matter of Title suits instituted by them and are still pending before the competent Court of law in 7. East Singhbhum.
10. The opinion of the Hon'ble Supreme Court, as relied upon by the counsel for the Respondent No. 6, is apposite to be applied in the facts of the present case, as parties are already fighting on the claim of the Trust property in the competent Court of law at East Singhbum, Jamsehdpur. In the judgment relied upon by the petitioner in the case of Dharmendra Kumar Yadav (Supra), it is evident that there were no proceedings or suit pending in the competent Court of Civil jurisdiction relating to the claim of title, ownership and possession of the property. Even then, officials of the Respondent State had taken upon themselves to adjudicate over the possession of the petitioner therein and resort to force to remove them from possession thereof. Such act of the Respondent State authorities were held to be unconstitutional. Accordingly, the District magistrate cum Collector, Gaya was directed to restore the possession of the land and the building along with all properties to the petitioner.
11. Since the petitioner is pursuing a legal battle with the private Respondent in the competent Court, it is open for him to seek appropriate amendment in the pending suit, if so advised, to seek restoration of possession upon adjudication of title, ownership, possession of the property and validity of the Trust Deed in question. However, this Court is of the firm opinion that the impugned action being without jurisdiction, cannot be sustained in the eye of law. Accordingly, the impugned order dated 14.09.2015 is quashed. Cost of Rs. 50,000/- is imposed on the Respondent State to be paid to the petitioner within a period of four weeks from the date of receipt of a copy of this order. However, it would be open for the State to recover the cost from the erring officials in accordance with law after due notice.
12. Writ petition is allowed in the manner and to the extent indicated herein- above. (Aparesh Kumar Singh, J) Ranjeet/