The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 173 of 2006 Baidyanath Grih Nirman Sahyog Samity Limited, a Housing Co- operative Society registered under the Bihar and Orissa Societies Registration Act bearing registration No.- 36 Deo dated 11/6/1981 through its Honorary Secretary Sri Abhay Kumar Shroff son of late Hanuman Prasad Shroff resident of Deoghar Town, P.S. and P.O. Deoghar, Sub-Division Deoghar, District Deoghar. … … Petitioner Versus 1. The State of Jharkhand 2. The Deputy Commissioner, Deoghar 3. The Sub-Division Officer, Deoghar 4. The Circle Officer, Deoghar 5. Sushil Sharma aged about 83 years, S/o Late Mevalal Sharma, R/o Jasidih Chakai More, PO- Jasidih, P.S.- Jasidih, District-Deoghar … Respondents … CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Petitioner --- : Mr. Rahul Kumar Gupta, Advocate Mr. Arvind Kr. Choudhary, Advocate For the Resp. Nos. 1 to 4 : Mr. Pankaj Kr. Choudhary, Advocate For the Respondent No. 5: Mr. Kundan Kr. Ambastha, Advocate Mr. Sudhanshu Kr. Deo, Advocate --- 15/27.02.2023 Heard the learned counsels appearing on behalf of the parties. 2. This writ petition has been filed for the following reliefs: and whereunder “For quashing the order dated 24/6/05 passed by the Deputy Commissioner, Deoghar (Respondent No.2) in Misc. Case No. 15/2001-2002 whereby the Deputy Commissioner, Deoghar declared Plot No. 693 having J.B. No. 6/3535 and 50/84 at Jasidih within Deoghar District, as public property and directed the Circle Officer, Deoghar to take immediate steps for taking charge of the aforesaid land and for any other relief/reliefs which the petitioner is entitled for in the facts and circumstances of the present case.” At the outset, the learned counsel appearing on behalf of the 3. respondent no. 5 has submitted that respondent no. 5 is representing Jasidih Mission Aspataal Ki Zameen Bachao Sangharsh Samiti having its office at Jasidih, District – Deoghar (Jharkhand) and Sushil Sharma is the president of the said Samiti. However, it is not in dispute that the said Samiti is not a registered body and number of persons were concerned with the manner in which the property involved in this case has been dealt with, therefore, they formed a Samiti and they were fighting with regard to the legality of the sale-deed by which the 2 property was transferred in favour of the petitioner or their predecessor-in-interest. Arguments on behalf of the Petitioner 4. It is submitted that the land having an area of 4.92 acres in Plot No. 693, JB No. 50 / 84, 6 / 3535 originally belonged to Bhagalpur Diocesan Trust Association (BDTA) which is a registered company. On 14.02.1989, the said company resolved and sold the property in question to E.T. Mandal vide registered Sale deed no. 1584 dated 14.02.1989, who in turn, transferred the said property vide registered deed dated 13.03.1989 in favour of the present petitioner. 5.
Legal Reasoning
The learned counsel submits that the legality and validity of the transfer made in favour of the present petitioner as well as the transfer made in favour of the predecessor in-interest was subject matter of challenge in Suit which was registered as Title Suit No. 3 of 1992. Initially, the sale deeds were declared to be void ab initio, however, subsequently, the judgement and decree passed by the learned trial court was set-aside by the appellate authority, and the sale-deeds were held to be legal and valid. The learned counsel for the petitioner further submits that a second appeal was also filed in the said case which was ultimately dismissed as not pressed. 6. The learned counsel for the petitioner submits that the said property was also subject matter of a public interest litigation being W.P.(PIL) No. 357 of 2002 and the same was dismissed on 15.01.2002 against which SLP (Civil) No. 10127 of 2002 was also dismissed by the Hon’ble Supreme Court vide order dated 08.07.2002. 7. The learned counsel submits that the legality and validity of the sale-deeds having already been decided, there was no scope for the learned Deputy Commissioner to enter into the legality and validity of the sale-deeds at the instance of the Jasidih Mission Aspataal Ki Zameen Bachao Sangharsh Samiti. He submits that a petition was filed by the aforesaid Sangharsh Samiti before the learned Deputy Commissioner, who after hearing the present petitioner, has passed the impugned order in Revenue Miscellaneous Case No. 15 of 2001-02 and has commented upon the suit which was decided by the court concerned. 3 8. The learned counsel submits that the learned Deputy Commissioner was of the view that the property should be recorded as a public property. He also submits that the Deputy Commissioner held that some fraud was played before the Court. The learned counsel submits that the suit was a contested suit and if any fraud was played, the Deputy Commissioner had no jurisdiction to declare any fraud which was alleged to have been committed in the title suit or in the proceedings before the title suit. The learned counsel submits that the Deputy Commissioner had no jurisdiction to comment upon the legality and validity of the decree passed in the title suit. He also submits that the property involved in this case was belonging to a company and not to a trust and it was purely a private dealing between the company and the persons who had bought the property and ultimately, it stood transferred to the present petitioner. He has also submitted that the property involved in this case has been transferred to 3rd parties vide registered sale-deeds. The learned counsel also submits that one such property has also been transferred in the name of wife of Sushil Sharma (Respondent no.5). 9. The learned counsel for the petitioner has relied upon a judgement passed by the Hon’ble Supreme Court reported in (1996) 3 SCC 149 (Singhai Lal Chand Jain (Dead) Vs. Rashtriya Swayam Sewak Sangh, Panna and Others) to submit that in cases where the suits are filed in representative capacity and merely because the procedure prescribed under Order I Rule 8 has not been followed, the same by itself cannot be said to be a nullity and it would bind the persons concerned. The learned counsel submits that this is over and above the fact that the learned Deputy Commissioner had no jurisdiction to comment upon the legality and validity of the sale- deeds and direct that the property involved in this case be treated as public property. 10. Learned counsel appearing on behalf of the petitioner has also relied upon a judgement passed by the Hon’ble Supreme Court reported in (2009) 6 SCC 194 (Sneh Gupta Vs. Devi Sarup and Others) wherein it has been held that even if an order is void or voidable, the same must be set-aside. Thus, a compromise/consent 4 decree which is as good as a contested decree, even if void, was required to be set-aside. 11. Learned counsel for the petitioner has also relied upon para 8 the judgement reported in AIR 2022 SC 1031 (Ms. Sree Surya Developers and Promoters Vs. N. Sailesh Prasad and Ors.). Arguments on behalf of the Respondents 12. Though the respondent no. 5 has been made party in the present case in his individual capacity, but the learned counsel for the respondent no. 5 has submitted that he is representing the Sangharsh Samiti, at whose instance the proceeding was initiated by the Deputy Commissioner. The learned counsel has relied upon the counter- affidavit filed on behalf of the respondent no. 5 who has filed the counter-affidavit by stating that he is the president of Jasidih Mission Aspataal Ki Zameen Bachao Sangharsh Samiti. He has referred to paragraph 11 to 15 and 22 of the counter-affidavit to submit that the sale-deed was not executed in accordance with law and there was connivance and fraud. 13. Learned counsel appearing on behalf of the respondent- State, on the other hand, has submitted that the impugned order has been rightly passed by the learned Deputy Commissioner, which does not call for any interference. Findings of this Court 14. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that the sale-deed involved in this case was subject matter of Title Suit No. 3 of 1992 which was filed by one Clement Bachman who was representing the community and vide judgement passed in the title suit, the sale-deed was declared to be void. The appeals filed against the judgement of the title suit were allowed by the learned District Judge. The appellate judgement has been annexed along with this writ petition. The following issues were framed for consideration in the aforesaid title appeals: “(I) Whether the sale deeds being no. 1584 dated 14.2.1989 executed by J.P. Lall in favour of E.T. Mandal and sale deed no. 885 dated 13.3.1989 in favour of appellant Shri Baidyanath 5 Griha Nirman Sahakari Samiti by E.T. mandal are legal, valid and genuine or not; (II) Whether J.P. Lall was entitled to transfer the suit property in favour of E.T. Mandal or not; (III) Whether the suit is barred under the provision of Order-1, Rule 8 C.P.C.; & (IV) Whether the suit is maintainable in the Civil Court or not.” 15. From the perusal of the appellate court’s judgement, it appears that the point of maintainability of the suit which was raised by the present petitioner, was decided against the present petitioner and rest of the three issues were decided in favour of the present petitioner. Specific issues were framed with regard to the validity of the sale- deed bearing no.1584 dated 14.02.1989 executed by J.P. Lall in favour of E.T. Mandal and sale deed no. 885 dated 13.3.1989 in favour of the present petitioner and a specific issue was also framed as to whether J.P. Lall was entitled to transfer the suit property in favour of E.T. Mandal. Specific issue with regard to Order I Rule 8 CPC was also framed. The issue nos. I and II were clearly decided in favour of the present petitioner. So far as issue no. III is concerned it was held as follows: - “31. The specific case of the defendant in the written statement since from the very beginning is that the suit is hit under Order-I, Rule-8 of the Civil Code. The plaintiff has filed the suit being a member of the Christian Community on the representative basis and therefore, he has filed an application under Order-I, Rule- 8 C.P.C. though leave was granted but notice was neither published nor any step was taken for publication of notice as required under the law. The learned counsel for the appellant, therefore, submitted that the suit is also barred by provision of Order-I, Rule- 8 C.P.C. The learned counsel in support of his contention has cited the case-law reported in A.I.R. 1983 Orissa, page-50 and A.I.R. 86 Orissa, page-100 that if the notice published as required under Order-I, Rule-8 C.P.C., the suit is not maintainable. I have gone through the said case-law but it does not exactly say that the suit is not maintainable. In my view, if the provision of Order-I, Rule-8 C.P.C. has not been complied with, then it is an irregularity and the suit should not be dismissed on that ground rather opportunity should be given to the plaintiff to regularize and in such a case appeal are remanded to the lower court for giving a fresh decision after due publication of the notice. In this case I find it is useless to remand since I have held above that the 6 basic prayer of the plaintiff for declaration of the sale deeds as void, is not maintainable and the plaintiff’s said relief has been rejected by this court by setting aside the finding of the learned lower court.” 16. Ultimately, it was held in para 32 of the judgment passed in title appeal that the sale-deeds of the suit property executed by J.P. Lall in favour of E.T. Mandal and subsequently by E.T. Mandal in favour of the present petitioner are valid, genuine and have got legal force. 17. The appellate judgement was also subject matter of Second Appeal No. 267 of 2000 which was ultimately dismissed as not pressed and the intervention application was also rejected. It is further not in dispute that even the Public Interest Litigation in connection with the property involved in this case was dismissed, against which the SLP was also dismissed. 18. Thereafter, the members of the aforesaid Jasidih Mission Aspataal Ki Zameen Bachao Sangharsh Samiti represented by the respondent no. 5 filed a petition before the Deputy Commissioner who after hearing the petitioner considered the judgements passed in the title suit and observed that, indirectly, not following order I Rule 8 of CPC, amounted to fraudulent intention of Mr. Bachman and collusion with opposite parties in obtaining court’s order in their favour and , inter alia, recorded the following findings with regards the title suits :- “As regards the various title suits, appeal and the second appeal it was argued on behalf of the petitioner’s Advocate that it was nothing but a mere collusion to obtained the court’s order in their favour by playing ‘fraud’. All the suits ended up either in withdrawal or compromise. In the appeal case no.13/92 and 16/92 the Learned ADJ passed the order on 25.04.2000 setting aside the order of the Learned Subordinate Judge. From the perusal of the order of Learned ADJ, Deoghar it appears that the judgment has been based on the finding that B.D.T.A. is a company. However, from the judgment it no where appears that how the ‘trust property’ can be transferred to a ‘Company’ without observing a settled law decided by the Hon’ble Apex court. The Order of Learned ADJ has been obtained by hiding this fact that originally the property was a trust property which has also been mentioned in sale deed no. 1584, dated 14.02.1989 at page no. 14. It has been referred in the sale deed as property of ‘Trust’. In the 7 order of Learned ADJ as well as Hon’ble High Court it has been clearly observed that order-I, Rule-8 of the CPC has not been followed. In the order of Learned ADJ, the issues of maintainability of the suit was not decided as the basic prayer of the plaintiff itself was rejected. However indirectly not following order-I Rule-8 of the C.P.C., amounts to fraudulent intentions of Mr. Bachmann and collusion with Opposite parties in obtaining court’s order in their favour. From the perusal of documents and also the report of the Circle Officer, Deoghar it is very clear that though the Addl. Collector permitted mutation of property but realising the disputed nature of the transfer no mutation order has been so far passed by the C.O. Deoghar. From the Copy of the Register II it is clear that the land is still in the name of Rev. RKT Mission @ Hospital. Further the property in question is not in the possession of the Opposite party. The report of C.O., Deoghar very clearly shows that in the proceeding u/s 145 Crpc. C.O. Deoghar was made the Receiver by SDM, Deoghar and since then it is continuing in the possession of the state.” 19. The Deputy Commissioner ultimately, issued the following directions: “In view of the facts discussed above, I am of the considered view that the property in question is a public property as all the claimants are fictitious in nature and are claiming the property on the basis of fraudulent transaction. Even if B.D.T.A. can be assumed to be a ‘company’ yet the attempt to dispose of the ‘Trust’ property in the guise of a company clearly tantamounts to a fraudulent activity. The various transfers made by different persons is not in accordance with law. Since the property in question was endowed for public cause which is not being properly safeguarded by its trustees and is every likelihood of being disposed of in a manner prejudiced to the public interest, it appears proper to take over the land in favour of the State as per the recommendations of the Circle Officer, in the public interest at large. It is an established fact that endowment land is a public property. The Circle Officer, Deoghar is accordingly directed to take immediate steps to take charge of the proceeding land i.e. Jamabandi No. 6/3535 and 50/84 appertaining to the plot no. 693 having an area of about 4.92 acres at Jasidih recorded in the name of Reverend R.KT CMS Mission alias Hospital as Public Property and report compliance. The SDO, Deoghar shall ensure the compliance of this order.” 20. This court is of the considered view that the Deputy Commissioner had no jurisdiction to declare that the suit or the 8 proceeding was itself collusive/fraudulent in nature and further declare the property as public property and consequently direct the Circle Officer to do the needful to get the property recorded in the name of government. The learned deputy commissioner had no jurisdiction to hold that, indirectly, not following order-I Rule-8 of the C.P.C., amounted to fraudulent intentions of Mr. Bachmann and collusion with Opposite parties in obtaining court’s order in their favour in the title suit. This court also finds that it has been recorded in the judgement passed in the title appeal that the plaintiff has filed the suit being a member of the Christian Community on the representative basis and therefore, he has filed an application under Order-I, Rule- 8 C.P.C. It has also been recorded that though leave was granted but notice was neither published nor any step was taken for publication of notice as required under the law. It was held that if the provision of Order-I, Rule-8 C.P.C. having not been complied with, then it was an irregularity and the suit should not be dismissed on that ground, rather opportunity to regularize should be given to the plaintiff by way of remand for giving a fresh decision after due publication of the notice. However, the appellate authority found that it was useless to remand as it was already held that the basic prayer of the plaintiff for declaration of the sale deeds as void, was not maintainable and the plaintiff’s said relief was rejected. The appellate court held that the sale deeds were valid, genuine and had legal force. 21. Admittedly, earlier Title Suit No. 3 of 1992 was filed by one Clement Bachman and others seeking a declaration that the sale-deed executed in favour of the petitioner’s vendor dated 14.02.1989 and the sale-deed executed in favour of the petitioner on 13.03.1989 were illegal and invalid. The title suit was decided against the petitioner in terms of the judgement dated 30.08.1997. Arising out of the judgment passed in the title suit, two appeals were filed; Title Appeal No. 13 of 1997 (filed by the present petitioner) and Title Appeal No. 16 of 1997 and ultimately, vide judgement passed in the title appeals, the trial court’s judgement was set-aside and the sale -deed executed by J.P. Lall in favour of E.T. Mandal and executed by E.T. Mandal in favour of the present petitioner were declared as valid, genuine and having the force of law. 9 22. The proceeding in the instant case was initiated before the learned Deputy Commissioner by Jasidih Mission Aspataal Ki Zameen Bachao Sangharsh Samiti through its president alleging that the property involved in the present case is known as Jasidih Mission Hospital with a prayer to restore the hospital building to original building site which was public property and the State had the statutory obligation to protect the same. The impugned order also reflects that the additional collector had permitted mutation of property but the circle officer realizing the disputed nature of transfer, no mutation order was passed. 23. The suit having been decided in favour of the petitioner, wherein the appellate court, upon contest, held the registered sale deeds as valid, genuine and having the force of law, there was no occasion for the learned Deputy Commissioner to hold by the impugned order that the proceedings or the decision in the final judgement arising out of the suit was collusive or fraudulent and further hold that the property recorded in the name of Reverend R.K.T CMS Mission alias Hospital is a ‘public property’. This court is of the considered view that intricate question of right, title etc. are involved in this case. Since the state is claiming title over the property, it is certainly open to the State also to get their right, title etc. declared through a competent court of civil jurisdiction. 24. In view of the aforesaid facts and circumstances, the impugned order dated 24.06.2005 passed by the learned Deputy Commissioner cannot be sustained in the eyes of law, which is accordingly set-aside. 25. This writ petition is accordingly allowed. 26. Pending interlocutory application, if any, is closed. Pankaj (Anubha Rawat Choudhary, J.)