Bishan Das & Ors Vs. The State of
Punjab & Ors  INSC 169 (19 April 1961)
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)
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.
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.
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,
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 trespassers 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
ORIGINAL JURISDICTION: Writ Petition No. 24
Petition under Art. 32 of the Constitution of
India for the enforcement of Fundamental Rights.
C. B. Aggarwala and K. P. Gupta, for the
N. S. Bindra and D. Gupta, for respondents
Nos. 1, 2 and 4.
K. L. Mehta and K. L. Hathi, for respondent
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 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,
(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 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
73 (3) Plans of the building which they want
to construct should at first be presented before me (Assistant Surgeon
(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
Government 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 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 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
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 Constitution.
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 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 dharmasala. 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
therefore, proceedings by way of a writ are
not appropriate in this case inasmuch as the decision of the (1)  S.C.R.
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 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 interfere 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 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)  1 S.C.R. 408.
(2)  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.