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PETITIONER: BISHAN DAS AND OTHERS

       Vs.

RESPONDENT: THE STATE OF PUNJAB AND OTHERS

DATE OF JUDGMENT: 19/04/1961

BENCH: DAS, S.K. BENCH: DAS, S.K. SINHA, BHUVNESHWAR P.(CJ) SARKAR, A.K. AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.

CITATION:  1961 AIR 1570            1962 SCR  (2)  69  CITATOR INFO :  RF         1976 SC1207  (183,543)  R          1982 SC  33  (41)  D          1986 SC 872  (82,84)  F          1989 SC 997  (15)

ACT: Fundamental  Rights, infringement of-Dharmasala  constructed with joint family funds on Government land with Government’s permission--Joint family members bona fide in possession and management-Eviction  by  executive  action-Constitutionality Constitution of India, Arts. 14,19, 31.

HEADNOTE: One  Ramjidas  built  a  dharmasala,  a  temple  and   shops appurtenant   thereto  with  the  joint  family   funds   on Government  land  with  the permission  of  the  Government. After his death the other members who were in management and possession  of  those properties were  dispossessed  by  the State, its officers and the local Municipality which was put in  possession.  The petitioners applied to the Punjab  High Court  for the issue of appropriate writs under Art. 226  of the  Constitution,  but the petition was dismissed  on  the, preliminary,  ground  that  the  matter  involved   disputed questions  of fact.  An appeal against that order  was  also dismissed  on the same ground.  The petitioners  then  moved this  court under Art. 32 of the Constitution.   Their  case was that they had been evicted without authority of law  and in violation of the Constitution.  It was urged on behalf of the  State that the property being trust property  built  on Government  land,  the  petitioners  were  mere  trespassers liable  to be ejected with the minimum amount of  force  and relying  on the decision of this Court in Sohal Lal  v.  The Union of India, it was further urged that redress by way  of writs  was wholly inappropriate in disputes on questions  of fact and title. Held, that on the admitted facts of the case the petitioners could  not  be  trespassers in respect  of  the  dharmasala, temple  and shops, nor the State the owner of the  property, irrespective of whether it was a trust, public or private.

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The  maxim, that what is annexed to the soil goes  with  the soil, is not an absolute rule of law in this country, and if the  State wanted to remove the constructions or resume  the land, it should have taken appropriate legal action for  the purpose. Thakoor Chunder Parmanick v. Ramdhone Bhuttacharjee,  (1866) 6  W. R. 228, Lala Beni Ram v. Kundan Lall, (1899)  L.R.  26 I.A.  58,  and Narayan Das Khettry v.  jatindranath,  (1927) L.R. 45 I.A. 218, referred to. Even if Ramjidas was no more than a trustee, that would  not give  the  State or its officers the right to take  the  law into their 70 own  hands and the argument that the petitioners were  tres- passers  and could be removed by an executive order must  be rejected not merely as specious but highly dangerous in  its implication. It  was  not necessary in this case  to  determine  disputed questions of fact, nor as regards the precise rights of  the petitioners.   It  was enough that they were  bona  fide  in possession  of the property and could not be removed  except by authority of law. The  executive  action  taken in the present  case  must  be deprecated  as being destructive of the basic principles  of the  rule  of  law;  it  was  a  highly  discriminatory  and autocratic act which deprived a person of the possession  of property without reference to any law or legal authority.

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 24 of 1960. Petition under Art. 32 of the Constitution of India for  the enforcement of Fundamental Rights. C.   B. Aggarwala and K. P. Gupta, for the petitioners. N.   S.  Bindra and D. Gupta, for respondents Nos. 1, 2  and 4. K.   L. Mehta and K. L. Hathi, for respondent No. 3. 1961.  April 19.  The Judgment of the Court was delivered by S.   K. DAS, J.-This is a writ petition under Art. 32 of the Constitution in respect of a dharmasala, an adjoining temple and some appurtenant shops, standing on a piece of land near the  railway  station at Barnala, district Sangrur,  in  the State  of Punjab.  The petitioners are sons, grand-sons  and daughter of one Lala Ramji Das, and widow of one Tara Chand, a predeceased son of Lala Ramji Das. The case of the petitioners in short is that Lala Ramji Das, who died in 1957, had built the dharmasala, temple and shops out  of the funds of the joint family consisting of  himself and the petitioners near about the year 1909 and during  his life-time  managed the  dharmasala, temple  and  shops  on behalf  of the joint family.  The dharmasala was  built  for the  benefit of the traveling public and was used as a  rest house by travelers; three deities were installed in the                              71 temple  and members of the public offered  worship  therein, though  there was no formal dedication; and the  shops  were let out on rent for the upkeep of the dharmasala and temple. They allege that after the Sri death of Ramji Das they  came into  possession  of  the  properties  in  question  but  in January, 1958, the respondents, namely, the State of Punjab, some of its officials’ and the Municipal Committee, Barnala, by force and without any authority of law dispossessed  them from the dharmasala in question and further deprived them of the control and management of the said dharmasala and temple

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and  are  seeking  to interfere with  their  management  and control  of  the shops appurtenant thereto.   The  Municipal Committee,  it  is  stated, was put  in  possession  of  the dharmasala and has opened its office in its main room.   The petitioners  first  asked  for  a  copy  of  the  orders  in pursuance  of  which  these acts were  committed,  but  were unable  to  obtain the same.  The petitioners then  made  an application under Art. 226 of the Constitution in the Punjab High  Court,  which was rejected on the  preliminary  ground that  the  matter involved disputed questions of  fact.   An appeal was also dismissed on the same ground. The petitioners then filed the present petition and  contend that   the  orders  in  pursuance  of  which  the  acts   of dispossession  have  been  committed as  well  as  the  acts themselves, constitute a flagrant infringement by the  State and   its  officials  of  the  fundamental  right   of   the petitioners  to hold and possess the properties in  question unless and until they are evicted in due course of law,  and accordingly they have prayed that:               (i)   a  suitable writ, order or direction  be               issued  quashing  the illegal  orders  of  the               State  Government,  the  Deputy  Commissioner,               Sangrur,  and the Sub  Divisional  Magistrate,               Sangrur,  if any, culminating in  the  handing               over  of  possession, management  and  control               over the dharmasala, the temple and the  shops               to the Municipal Committee, Barnala,  district               Sangrur;               (ii)  a  suitable writ, order or direction  be               issued               72               prohibiting the respondents from   interfering               with   the  management  and  control  of   the               petitioners over the temple and the shops  and               with  the realization of rent of the shops  by               the petitioners;               (iii)  a suitable writ, order or direction  be               issued  to the respondents to  withdraw  their               possession,  control and management  over  the               dharmasala and other properties and to put the               petitioners in possession over the same; and               (iv)  such  other and further writ,  order  or               direction be issued which this Court may  deem               fit  and  proper  in  the  interests  of   the               petitioners. It is necessary at this stage to recite briefly some of  the earlier  history  relating  to the  dharmasala,  temple  and shops,  so  far  as  such  history  is  available  from  the undisputed  documents filed before us.  It is  not  disputed that  the  land on which the dharmasala,  temple  and  shops stand  was  "nazul" property of the then State  of  Patiala. Sometime in 1909 Lala Ramji Das who was carrying on a  joint family  business  in  the name and  style  of  Faquir  Chand Bhagwan  Das asked for permission to construct a  dharmasala on  the  land  in question which was  near  Barnala  railway station and therefore convenient, to travellers who come  to that place.  At first, permission to build a dharmasala  was granted  by  the then Patiala Government in favour,  of  the Choudhuris of Barnala bazar, who. were unable however to get together  adequate  funds for the purpose.  Ramji  Das  then asked  for sanction to construct the dharmasala in the  name of  the  firm  Faquir Chand Bhagwan Das and  at  the  firm’s expense  sometime in May, 1909.  This sanction  was  granted and  communicated  to  Ramji Das by  the  Assistant  Surgeon inching of Barnala hospital, who was presumably in-charge of

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public  health  arrangements at Barnala.  The  sanction  was made subject to the following conditions (see Ex.  A),               "(1) No tax be, taken for this land from them.                (2) The shopkeepers will arrange ’Piao’ (shed               for  the  arrangement for  supplying  drinking               water)  for the passengers and  will  maintain               it.               73               (3)   Plans of the building which they want to               construct should at first be presented  before               me (Assistant Surgeon in-charge).               (4)   They  will be responsible for  observing               cleanliness   and  sanitary  rules  and   will               construct good drains.               (5)   No permission to construct any shop will               be granted.  The building will be  constructed               only for the passengers.               (6)   If the abovementioned conditions are not               fulfilled,  the State will dispossess them  of               the land." In 1909 the  dharmasala was constructed with an  inscription on stone to the effect "Dharmasala Lala Faquir Chand Bhagwan Das,  mahajan,  1909."  It appears that though  one  of  the conditions was that permission to construct shops would  not be  granted, a number of shops were later  constructed  with the permission of the authorities concerned for meeting  the expenses  for the maintenance of the temple and  dharmasala. Soon  after, that is in 1911, there was a complaint  against Ramji  Das  (Ex.  B) in which allegations were made  to  the effect  that Ramji Das was utilising the dharmasala for  his private  purpose, etc.  Nothing appears to have come out  of this  complaint.   Sometime  in  January,  1925,  Ramji  Das himself  appears to have made a statement to the  Tahsildar, Barnala, in which he said:               "This inn land was given to me by the  Govern-               ment by way of wakf.  I invested money on  the               building  from  my own  funds  for  charitable               purpose.   I do not want to reap any  benefit.               The  Government will be within its  rights  to               keep  watch over it and maintain its  accounts               anyway  it likes but it may not be used  as  a               Government building and nor anyone be  allowed               to have a permanent abode therein.  It may  be               specifically  reserved for the convenience  of               incoming and outgoing passengers.  The  income               derived from the shops by way of rent be spent               over  its repairs.  The income of rent is  Rs.               15 to 16 per month.  I have appointed one  man               as inn-keeper at the rate of Rs. 11 per  month               out of               74               this  income  for its  supervision.   He  will               remain over there permanently." This  statement was made in the course of an  enquiry  which was  started  earlier,  the  exact  date  of  which  is  not ascertainable from the documents in this record but may have been  instituted  in 1920.  On April 7,  1928,  the  Revenue Minister,  Patiala  State, passed an order which  said  that though  the land on which the dharmasala had been built  was originally Government land (nazul property), it would not be proper  to  declare  it as such and  the  dharmasala  should continue to exist for the benefit of the public.  The  order concluded with the following direction:               "It  would be proper if the inn be kept as  it               is  for the public benefit, but it  is  hereby

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             ordered  that neither Ramji Das nor any  other               person will be competent to transfer it in any               manner.   Ramji Das will look after it in  the               capacity of a Manager and the income  accruing               therefrom  will  be spent on the inn  for  the               public benefit.  And if Ramji Das or any other               person  or Manager will transfer it, then  any               such transfer will be considered unlawful  and               invalid  and in such an event  the  Government               will  eschewer it but even then this inn  will               be used for the public benefit.  No Government               servant  will make therein a  permanent  abode               and nor would it be sold as Nazool property." The  trouble  did  not end however with  the  order  of  the Revenue  Minister.  A re-investigation appears to have  been ordered,  presumably at the instance of the  Sanatan  Dharma Sabha, Barnala.  Again, an enquiry was hold and it was found by  the  Nazim, district Barnala, that  the  dharmasala  and temple were constructed by Ramji Das; that he employed three employees-one bandit for worship etc., one for looking after the travelers, and a third to keep the premises clean;  that there was no order to take accounts from Ramji Das; and that repairs  etc. were carried out from the rents of the  shops. The  Nazim, however, said in his order that the ’Sarai’  was declared to be that of the State, and presumably he said  so on  the  ground that it stood on  Government  land.   Later, Ramji Das 75 obtained  further permission to make a raised  platform  and other extensions, details whereof are not necessary for  our purpose. We then come to 1954.  On September 10, 1954, one Gopal Das, Secretary, Congress Committee, Barnala, filed a petition  to the Revenue Minister, Patiala, in which various  allegations were made against Ramji Das and it was prayed that Ramji Das be  suspended and the management of the dharmasala  etc.  be taken over by the State.  This petition was enquired into by the  Tahsildar,  who  again found that  the  dharmasala  was constructed  by  Ramji  Das on  Government  land,  that  the dharmasala  was  for public benefit and that Ramji  Das  had been  managing  it all along.  He  reported,  however,  that Ramji Das was bound to render accounts and as he had  failed to  do  so  and considered the property to be  his  own,  he should be removed and past accounts called for.  The  matter was  then  referred to the Legal Remembrance  of  the  State Government.   This officer referred to the earlier order  of the Revenue Minister and pointed out that the dharmasala and temple, though built on Government land, were not Government property  and  even  though Ramji Das  was  repudiating  the existence of a public trust, he was working as trustee of  a trust  created  for  public  purposes  of  a  charitable  or religious nature and could be removed only as a result of  a suit under s. 92, Civil Procedure Code.  The matter  appears to have rested there and no further action was taken against Ramji Das on the petition of Gopal Das. We may refer here to a somewhat earlier order of the Revenue Minister  dated  December  13, 1954, in which  there  was  a direction that a deed of trust should be executed appointing Ramji Das and two other persons as trustees.  No such  trust deed appears to have been executed. We now come to the last part of the story.  After the  death of Ramji Das on December 10, 1957, the petitioners continued the  management  of  the dharmasala, temple  and  the  shops appurtenant thereto.  This was not seriously disputed before us.  The petitioners

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76 paid the necessary taxes and electric charges for which they obtained receipts; they also realised the rent of the shops. On  or  about December 23, 1957, Gopal Das and  some  others describing  themselves  as members of the  public,  Barnala, made  an  application  that since Ramji Das  was  dead,  new arrangements should be made for the proper management of the dharmasala  which  is used for the benefit  of  the  public. This  led to fresh researches into the old papers, and  this time  the Sub-Divisional Officer, Barnala, recommended  that in the interest of Government (sometime before this  Barnala come  into  the  Punjab  State)  the  Municipal   Committee, Barnala,  should take immediate charge of the management  of the  dharmasala.   This recommendation was affirmed  by  the Deputy  Commissioner,  Sangrur,  who  wrote  to  the  Punjab Government  for  necessary sanction of  the  recommendation. The  sanction has not been produced before us,  but  learned Counsel  for  the  respondents has produced  before  us  the letter  which  the Deputy Commissioner wrote.   This  letter says:                         "Subject:Management of ’Sarai’ near                          Railway Station, Barnala. Memo.               One  Shri Ramji Das was appointed  as  Manager               vide  order  of the Revenue  Minister  of  the               erstwhile State of Patiala dated  26-12-1987Bk               of  the  property,  as  cited  subject.    The               Manager  was only to look after  the  property               and to utilize the income of the property  for                             the  improvement  of  the  ’Sarai’  for  publi c               welfare.  Shri Ramji Das, manager is  reported               to have died and there is none else to  manage               ’Sarai’.    The   S.  D.  O.,   Barnala,   has               recommended  that  in  the  interest  of   the               Government, the management of the ’Sarai’  may               immediately   be  entrusted  to  the  M.   C.,               Barnala.  I also fully agree with the views of               the  S.  D. O., Barnala, who  has  accordingly               been  directed to hand over the management  to               the  M. C. in anticipation of approval of  the               Government." In   pursuance  of  the  direction  given  by   the   Deputy Commissioner, the Kanungo presumably in accordance 77 with  the  orders of the  Sub-Divisional  Officer,  Barnala, dispossessed the petitioners from part of the dharmasala  on January  7,  1958, and made over charge of the same  to  the Municipal Committee, Barnala. The  petitioners  challenge these orders  as  being  without authority of law and complain that these orders and the acts committed  in  pursuance  thereof,  amount  to  a   flagrant violation of their fundamental rights under Arts. 14, 19 and 31  of  the  Constitution.  They say  that  they  have  been deprived  of  property  by the State  and  its  officers  in pursuance of executive orders without authority of law; they have  been  denied equal protection of the laws;  and  their fundamental right to hold property has been violated in  the most  arbitrary  manner which is destructive  of  the  basic principles  of  the  rule  of law  guaranteed  by  the  Con- stitution. On  behalf of the respondents an affidavit has been made  by the  Sub-Divisional Officer, Barnala, in which it  has  been stated, inter alia, that "the property is trust property  of a  public and charitable character and the  petitioners  are

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not entitled to claim any property rights in respect of  the same".  Assuming that the property is trust property of  the nature suggested, no attempt has been made in the  affidavit to  show  under  what  authority of law  the  State  or  its executive officers were justified in taking the action  that was  taken against the petitioners in respect of  the  dhar- masala.   Learned Counsel for the respondents has sought  to justify that action on the ground that the petitioners  were mere  trespassers  and as the land on which  the  dharmasala stood  belonged to the State, the respondents were  entitled to  use  the  minimum of force  to  eject  the  trespassers. Secondly  be has contended, on the strength of the  decision of  this Court in Sohan Lal v. The Union of India (1),  that there is a serious dispute on questions of fact between  the parties  in this case and also whether the petitioners  have any  right  or  title  to the  subject  matter  of  dispute; therefore, proceedings by way of a writ are not  appropriate in this case inasmuch as the decision of the (1)  [1957] S.C.R. 738. 78 Court would amount to a decree declaring a party’s title and ordering restoration of possession. 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 Ramji 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 s. 60(b) 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 concerned,  is that the land belonged to the State; with the permission  of the  State Ramji Das, on behalf of the joint family firm  of Faquir  Chand Bhagwan Das, built the dharmasala, temple  and shops and managed the same during his life time.  After  his death  the petitioners, other members of the  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, irrespective  of the question whether the trust created  was of  a public or private nature.  A trustee 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 rule  of law  of  this  country; see  Thakoor  Chunder  Parmanick  v. Ramdhone Bhuttacharjee (1); Lala Beni Ram v. Kundan Lall (2) and   Narayan  Das  Khettry  v.  Jatindranath  (3).    These decisions  show  that  a  person  who  bona  fide  puts   up constructions  on  land  belonging  to  others  with   their permission  would  not  be  a  trespasser,  nor  would   the buildings  so constructed vest in the owner of the  land  by the  application of the maxim quicquid plantatur solo,  solo cedit.  It is, therefore, impossible to hold (1) (1866) 6 W.R. 228. (2) (1899) L. R. 26 I.A. 58. (3) (1927) L.R 54 I.A. 218. 79 that  in respect of the dharmasala, temples and  shops,  the State has acquired any rights whatsoever merely by reason of their  being  on the land belonging to the  State.   If  the

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State  thought that the constructions should be  removed  or that  the condition as to resumption of the land  should  be 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 trust was a public trust it  should  have taken  appropriate  legal  action for  the  removal  of  the trustee as was opined by the State’s Legal Remembrancer.  It is well recognised that a suit under s. 92, Civil  Procedure Code,  may be brought against persons in possession  of  the trust  property even if they claim adversely to  the  trust, that  is,  claim to be owners of the  property,  or  against persons who deny the validity of the trust. Learned Counsel for the respondents has drawn our  attention to the statement of Ramji Das made ill 1925 and the order of the  Revenue  Minister  dated December  13,  1954,  and  has contended that Ramji Das himself admitted that he was a more trustee.   Be that so; but that does not give the  State  or its executive officers the right to take the law into  their own hands and remove the trustee by an executive order.   We must, therefore, repel the argument based on the  contention that  the petitioners were trespassers and could be  removed by  an executive order.  The argument is not  only  specious but  highly  dangerous  by reason of  its  implications  and impact on law and order. As  to the second argument, it is enough to say that  it  is unnecessary in this case to determine any disputed questions of  fact  or  even  to  determine  what  precise  right  the petitioners  obtained by the sanction granted to their  firm in  1909.   It is enough to say that they are bona  fide  in possession of the constructions 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 80 petitioners in the management of the dharmasala, temple  and shops.  A writ will now issue accordingly. 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  Constitution  which guarantees to its citizens against arbitrary invasion by the executive  of peaceful possession of property.   As  pointed out  by this Court in Wazir Chand v. The State  of  Himachal Pradesh (1), the State or its executive officers cannot  in- terfere  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. The State of Bihar (2) 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

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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 extraordinary action are, to (1)  [1955] 1 S.C.R. 408. (2)  [1953] S.C.R. 1129. 81 quote  what we said in Sahi’s case (supra),  remarkable  for their disturbing implications. For these reasons, we allow the application with costs and a writ will now issue as directed. Petition allowed.