- (1.) These two appeals were heard together, one after the other, as those arise out of the same proceeding under Section 34 of the Indian Trusts Act ( Act ) and to some extent, are interlinked.
(2.) APOT no. 263 of 2010 is at the instance of a third party in a proceeding under Section 34 of the Act who has been admittedly dispossessed by the Special Officer appointed by the Court in the proceedings, and is directed against order dated August 16 & 17, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of two applications filed by the appellant, being GA no.1469 of 2006 and GA no.2478 of 2009, by giving leave to the appellant to approach appropriate forum for establishing his legal right in the property and also giving him liberty to file appropriate application seeking leave to sue the Special Officer, if necessary. The learned Single Judge, however, directed return of the machineries belonging to the appellant to him which were lying in the symbolic possession of the Special Officer and physical possession of the Applicant under Section 34 of the Act after making inventory of those articles. The other appeal being APOT no.163 of 2011 is at the instance of a promoter whose bid to promote the property which is the subject-matter of the application under Section 34 of the Act was found to be the highest and consequently, was selected by the court in the past for development, and is directed against order dated March 3, 2011 passed by the selfsame learned Single Judge by which His Lordship refused prayer (b) of the application being GA no. 3752 of 2006 filed by the applicant under Section 34 of the Act by which he prayed for direction upon the Special Officer to deliver possession of the entire premises in question to the appellant after acceptance of his offer with police help. His Lordship while refusing such prayer restrained the appellant and the applicant under Section 34 of the Act as well as the Special Officer from transferring or alienating any portion of the building and land appertained thereto to anyone without the leave of the Court until the Kolkata Municipal Corporation decided the question as to whether the developer constructed the building in accordance with the sanctioned plan. The Kolkata Municipal Corporation was directed to report within six months on the said question.
(3.) The facts giving rise to filing of these appeals may be summed up thus: a) One Sri Sri Radha Banshidhari Thakur, a Hindu deity being represented by its next friend and shebait, viz. Krishna Chandra Adhikary, filed an application under Section 34 of the Indian Trust Act before this Court being A.T.A. no 1 of 2006 and prayed for the following reliefs: i) The petitioner be discharged from and/or allowed to retire from the office of shebait and trustee of the debutter estate of the deity Sri Sri Radha Bankshi Dhari Thakur created through the will dated 10-1-1932 of Smt. Mann Kumar Dassi, deceased and the said 4th son of the petitioner being Gopal Adhikari be appointed as the shebait and managing trustee in place and stead of the petitioner on the same terms and conditions, and further to that to appoint your petitioners younger son Chinmoy Adhikary to act as a trustee; ii) Liberty to given to the shebait of the aforesaid debuttar estate to deal with the present occupiers of 11, Mathur Sen Garden Lane, Calcutta and to evict the trespassers therefrom with the help of the local police of the Jorabagan P.S. and if necessary a special officer be appointed for the purpose with a direction to the local Jorabagan P.S. to render all possible assistance to him; iii) Liberty be given to the aforesaid debutte estate to have the property at 11, Mathur Sen Garden Lane to be developed by a suitable developer so that a proper abode and mandir be constructed to house the said deity; iv) Liberty to be given to the shebait to shift the said deity from Brindaban to the newly constructed mandir after development of all, Mathur Sen Garden Lane, Calcutta, if both the trustees are in agreement for the same; v) Liberty be given to the shebait and trustee to sell the said Brindaban property at the best available price after the shifting of the deity, or in the alternative to construct an Asram to house pilgrims for proper and better utilization of the said property; vi) Direction be given to the shebait and trustee to invest the sale proceeds of the Brindaban property and the income form the development of 11, Mathur Sen Garden Lane, Calcutta, be deposited in maximum interest yielding deposits so that the purposes for creating the debutter and the direction and desires of the settler be property, implemented; vii) Any other suitable direction be given or orders passed as to this Hon ble Court deem fit and proper; viii) Costs of this application do come out of the funds of the estate. b) According to the averments made in the said application, one Mann Kumari Dassi was the original owner of the property which is the subject-matter of the application and she installed the deity, being the applicant, by creation of a Debottar Estate and fixing the line of succession of the Shebaits. According to the petitioner, the said Mann Kumari by way of a testamentary disposition created a trust by way of Debattor and such Will has been duly probated by this Court. c) In paragraph 19 of the application before this court under Section 34 of the Act, it is admitted by the applicant that the property in question was in occupation of the trespassers or unauthorised occupants without disclosing their identity. d) On March 29, 2006, the learned Single Judge, before whom the matter was moved, after going through a supplementary affidavit filed by the applicant, was satisfied that the amount of expenditure of the Debottar estate far exceeded the amount of income thereof and that there was no way out to solve the problem of maintaining the proper seva-puja of the deity who was then installed in Brindban and the temple at Brindaban was in possession of the third parties. In such a situation, as suggested to His Lordship, the property in question in Kolkata should be developed and the deity should be shifted to the Kolkata in a portion by construction of a temple which would be equivalent to the space then occupied by the deity in Brindaban. Consequently, His Lordship directed the shebaits to advertise in two newspapers inviting the intending developers to submit their proposals. By the selfsame order, His Lordship permitted the applicant shebait to retire as prayed for and appointed two of his sons as joint shebaits in his place. By the said order, His Lordship also appointed Mr. Biswajyoti Mitra, a learned Advocate, who was present in the courtroom, as a special officer without any remuneration for reporting the condition and the state of affairs of the property in question. The order dated March 29, 2006 is quoted below: The Court: - Supplementary affidavit has been filed indicating the income and expenditure of the debutter estate. It appears that the amount of the expenditure far exceeds the amount of the income. This puja always runs with deficit. There is no way out to solve the problem for maintaining the proper seva puja of the deity at present at Brindaban. However, it is difficult to manage and run and even to perform seva puja. The mandir at Brindaban is under the physical possession of third party who is appropriating the income, profits and issues therefrom and to the exclusion of the deity. Under these circumstances, the shebaits have suggested a scheme for proper utilisation and management of the assets and properties of the deity. It is suggested that an immovable property being premises no.11, Mathur Sen, Garden Lane, Calcutta- 700006 which is not the abode of the deity could be developed with the help of the intending developer with a condition a suitable space shall be provided for reinstallation or shifting of the deity and to make a small temple for performing seva puja. The space must be equivalent to the space now occupied by the deity in Brindaban. Accordingly, I grant permission to the shebaits concerned to advertise in the newspaper once in Sanmarg , once in Aajkal and once in The Statesman to invite the intending developer for the purpose of developing and constructing a suitable building keeping apart the space for construction the temple. This advertisement shall be done within a period of three weeks from date. On the receipt of the offers from the intending developers the same shall be placed before the Court. It is appropriate to have a valuation of this property which is sought to be given to the developer for development on such terms and conditions as may be negotiated by the shebaits with the intending developer and subject to approval of the Court. The petitioner is unable to carry out the function as the shebait. Therefore, he is discharged on his prayer and in his place and stead Mr. Gopal Adhikari and Chinmoy Adhikary be appointed shebaits trustees. Mr. Biswajoit Mitra, learned Advocate, who is present in Court is willing to act as Special Officer to make a report as to the condition and state of affairs of the property, without any remuneration and security for the aforementioned purpose. Let the Special Officer submit his report on Monday week. Matter is adjourned for six weeks from date. All parties concerned including the Special Officer are to act on a signed xerox copy of this order on the usual undertaking. e) Pursuant to such direction, the learned Special Officer inspected the premises and submitted his report showing that the same was under the lock and key and he not only could not enter inside for that reason but also was chased by outsiders when he tried to enter the premises. The said report is quoted below: On 7-4-2006 the signed copy of the minutes of the order passed herein by the Hon ble Justice Sengupta was served upon me by the Ld. Advocate of the petitioner. Due to paucity of time I gave verbal notice to the petitioner through his Ld. Advocate who also assured me that he would inform the newly appointed Shebaaits/Trustees as also to the respondent. I fixed Saturday 8-4-2006 at 9:00 a.m. to visit the premises no.11, Mathur Sen Garden Lane, Calcutta 700 006 to carry out the order of the Hon ble Court. Accordingly on 8-4-2006 at 9:00 a.m. I went to the said premises accompanied by Sri Gopal Adhikari and I was assured that all parties concerned were duly notified by Sri Gopal Adhikari and his Learned Advocate and that no one had any objection to my visit and carrying out the order of this Hon ble Court. The premises was identified to me by Sri Gopal Adhikari. Inside views of the premises was not possible from outside. On external inspection I found a one storied building one the Western side of the Lane which is about 8 ft. wide and runs parallel to B.K. Pal Advenue and is near the crossing of B.K. Pal Avenue with Nimtolla Ghat Street and the premises is at about 100 yards distance from Jorabagan police station. The said front side building was totally unoccupied but there were locks whose keys could not be produced by Gopal Adhikari. However, from external inspection I found the building to be dilapidated especially on the roof that it could fall down at any moment. I then attempted to go inside through the gate at the Northern end of the building. At this I was resisted from persons inside the premises and also from persons who were outside the building. None of the persons disclosed their names. The persons were very threatening and threatened to manhandle me and they also abused me. Thus I could not proceed further. I thereafter informed the local P.S. in writing and informed everybody in the same way that I would visit on the next day (9-4- 2006) at 11:00 a.m. On 9-4-2006 I first went to the local P.S. accompanied by the said Gopal Adhikary and the P.S. gave 2 police personnel for my protection. Thus on 9-4-2006 at around 11:30 a.m. again I visited the premises along with two police officers. The same persons again came out but on seeing the 2 police officers they did not obstruct me, and I could enter the premises. On entering the premises I found that there is a one storied structure in a dilapidated condition whose roofs are made of asbestos which is broken at different places. One room about 120 sq.ft. seems to be occupied by unknown persons but I could not ascertain as to what activity they were involved in. All other portions were under lock and key. More than half of the total area inside was open to sky with two large trees and full of thorn bushes. Apart from the room as above the rest is filled with garbage. The persons present did not disclose their names or identities or the purpose of their occupation. From local enquiry it has been found that during late night sometimes some people get in as they have a key to one door, otherwise the premises is absolutely vacant. This fact was reconfirmed by some persons who claimed to be members of Ankur a local Organisation involved in Social work. It appeared to me that the total area of the premises by estimation will be a little more than 4 Cottahs and no trace of any permanent residence was found by me. This report is prepared at my observation made on 8-4-2006 and 9-4- 2006 as aforesaid. ;