JUDGMENT
Prakash Krishna, J.
1. These two writ petitions were heard together and are being disposed of by a common judgment, as jointly agreed upon by the learned Counsel for the parties. The fate of Writ Petition No. 2403 of 2007 is dependant on the success of the leading writ petition, i.e., Writ Petition No. 13237 of 2001.
2. The background facts of the case are as follows:
Gulab Das, the respondent No. 2 claiming himself owner and landlord on the basis of the sale deed executed in his favour with respect to the property in question which according to the petitioner was one of the trust properties initiated proceedings for declaration of vacancy and release in respect of the disputed properties being house No. K-46/197, Mohalla Hartirath under Section 16(1)(b) of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act No. 13 of 1972 (hereinafter referred to as the Act) on 1st of August, 1995. The Rent Control and Eviction Officer by the order dated 24th of February, 1999 declared the vacancy and subsequently it was released by the order dated 15th of May, 1999 in favour of the respondent No. 2, Gulab Das. Gulab Nabi Azad, the alleged unauthorised occupant (hereinafter referred to as tenant) filed a review application before the Rent Control and Eviction Officer under Section 16(1)(b) of the Act to recall the order dated 24th of February, 1999 declaring the vacancy. The said review application was dismissed by the order dated 3rd of January, 2001. Gulab Nabi Azad, respondent No. 6 herein was found as unauthorised occupant, and his eviction from the disputed property was ordered. He challenged the aforestated orders unsuccessfully before this Court in Writ Petition No. 2152 of 2001.
3. The petitioner filed the aforesaid two petitions claiming that it is a public religious trust which enshrines in house No. K- 46/197, Mohalla Hartirath, police station Kotwali, district Varanasi. One Gaya Prasad son of Mathura Prasad created a trust in respect of the property in question alongwith other properties by executing registered trust deed dated 28th of October, 1949. He had appointed six trustees including one Mukundi Lal. Mukundi Lal who was one of the original trustees managed to get a Will deed dated 4th of August, 1950 from the author of the trust and he sold the property by playing fraud on 17.12.1974. Suit No. 111 of 1977 for cancellation of the Will deed dated 4th of August, 1950 and sale deed dated 17.12.1974 is pending before the civil court. Shri Raja Singh son of late Badri Prasad through whom the present writ petition has been filed claiming himself as chief trustee claims that he has been subsequently appointed by the remaining trustees. There was proceedings under Section 145, Cr.P.C. in between Raja Singh and Mohd. Kalim and Gulab Nabi Azad, respondent No. 6 in this writ petition. Therefore, the order dated 24.2.1999 declaring vacancy and the release order dated 15.5.1999 releasing the disputed property in favour of respondent No. 2, Gulab Das, be quashed, as the trust is the owner of the disputed property.
4. The present writ petition has been filed with the following reliefs:
(i) issue a writ, order or direction in the nature of writ of certiorari quashing the orders dated 24.2.1999, 15.5.1999 and 3.1.2001 (Annexures-7, 8 and 10 to this writ petition).
(ii) issue a writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case, and
(iii) award the cost of the petition to the petitioner.
5. The petitioner has sought quashing of the order declaring the vacancy as also the release order releasing the disputed accommodation in favour of Gulab Das, the respondent No. 2 and the order passed on the review application rejecting it filed by the tenant (respondent No. 6).
6. In the counter-affidavit filed on behalf of the respondent No. 2, Gulab Das, it has been stated that the present writ petition is not maintainable as Shri Raja Singh who claims himself as chief trustee has got no locus standi to file the present petition as he has not been appointed as chief trustee by any authority or court. In other words, he is a self styled chief trustee and filed the present writ petition with oblique motive to protect the tenant (respondent No. 6) from the release proceedings who has lost up to the High Court in Writ Petition No. 2152 of 2001.
7. It is not disputed that a trust was created by Shri Gaya Prasad by registered deed dated 28th of October, 1949 whereby and whereunder he appointed certain persons as trustees including Mukundi Lal. Subsequently, by a registered Will the settler of trust entrusted the power to manage the trust exclusively to Shri Mukundi Lal. It is also not in dispute that Gaya Prasad died on 17.11.1950 leaving behind his widow Smt. Sudesra Devi who also died on 30th of January, 1954. Shri Mukundi Lal managed the trust exclusively during his life time. He executed registered Will dated 21st of April, 1966 in favour of his son Shri Ram and Smt. Urmila Devi to manage the trust property. These persons applied for permission to the District Judge in Misc. Case No. 19 of 1972 to sell the disputed property as the same was considered unprofitable to the trust and to utilize the fund in some constructive work. The District Judge by the order dated 19th of February, 1972 granted permission. In the meantime, the Urban Land Ceiling Act came into operation and therefore permission to sell was applied for and was granted by the District Magistrate, Varanasi vide order dated 19th of July, 1974. The house was divided in four parts and was sold to four persons. The property in question was purchased by the respondent Nos. 2, 3, 4 and 5 namely Gulab Das, Shyam Sunder, Panna Lal and Mangroo Ram. Thus, they all have become owner and landlord of it. It was further stated in the counter-affidavit that the tenant (respondent No. 6) was permitted to occupy the disputed premises for a period of two months as his house was under construction but subsequently, he became dishonest and refused to vacate the premises in question which led to the filing of an application that the premises in question is deemed vacant under Sections 12 and 16 of the Act and its release was sought for. The accommodation in question was declared vacant by the order dated 24th of February, 1999 and it was released on 15th of May, 1999. An application to recall the order declaring the vacancy was filed on the allegation that the tenant (respondent No. 6) on a monthly rent of Rs. 150. In the said application the tenant claimed that he is in possession of the disputed property since 1989. The recall application was dismissed by the order dated 10th of August, 1999. Challenging the aforesaid orders a Writ Petition No. 2152 of 2001 Gulab Nabi Azad v. Rent Control and Eviction Officer, was filed before this Court which has been dismissed by the judgment dated 19th of January, 2001. The tenant failed to vacate the premises inspite of time granted by this Court and thereafter the present petitioner came in the scene and filed the present Writ Petition No. 132237 of 2001 challenging those very orders which were subject matter of the earlier writ petition filed by the tenant Gulab Nabi in the Writ Petition No. 2152 of 2001.
8. From the narration of the facts as stated above, it is clear that the leading Writ Petition No. 132237 of 2001, as a matter of fact, is a second writ petition challenging the orders dated 24.2.1999, 15.5.1999 and 3.1.2001. The validity of the judgment and order has already been upheld by this Court in the Writ Petition No. 2152 of 2001 filed by the tenant.
9. The contention of the learned Counsel for the petitioner is that the property in question is a trust property and belongs to the petitioner and that Raja Singh through whom the present writ petition has been filed being chief trustee is entitled to challenge those very orders. It was further submitted that in pursuance of the orders obtained by the respondent No. 2, Gulab Das against the respondent No. 6 Gulab Nabi Azad, the petitioner is being evicted, therefore, the writ petition is maintainable. Contention is that the litigation between Gulab Das and others on one hand and Gulab Nabi Azad on the other hand was a fake litigation. The petitioners came to know about these litigations on 5th of March, 2001, hence the present writ petition. Elaborating the argument, emphasis was laid on the fact that the petitioner has already filed a Suit No. 111 of 1977 for cancellation of Will deed dated 4th of August, 1950 and the sale deed dated 17.12.1974.
10. I have given careful consideration to the aforesaid submissions of the learned Counsel for the petitioner and arrive at the conclusion that this writ petition is frivolous writ petition and the petitioner has not come to this Court with clean hands. The present petition is in the nature of proxy litigation so that the respondent No. 6, Gulab Nabi Azad, who has been held to be unauthorised occupant of the premises in question up to the High Court stage may continue and remain in possession of the disputed property.
11. A copy of the trust deed has been filed as Annexure-1 to the writ petition wherein it has been provided that it shall be open to the trustees to sell or dispose of a property if the same is in a dilapidated condition and may purchase another property. It may be pointed out that after the execution of the aforesaid registered trust deed appointing certain persons including Mukundi Lal as trustee, Gaya Prasad, the settler of the trust, executed a registered Will dated 21st of August, 1950. A perusal of the said Will clearly shows that due to indifferent attitude of other trustees, Gaya Prasad, the settler of the trust, appointed Mukundi Lal as the sole trustee to manage the trust property. Shri Gaya Prasad expired on 17th of November, 1950 leaving behind him his widow Smt. Sudhesra Devi who also died on 30th of January, 1954. Mukundi Lal continued to manage the trust property all these years without there being any objection by any person including Smt. Sudhesra Devi, which is a relevant circumstance and goes against the petitioner. Subsequently, Mukundi Lal on 21st of April, 1966 executed a registered Will in favour of his son Shri Ram and daughter in-law Smt. Urmila Devi from whom the contesting respondents purchased the property in question. Shri Ram and Urmila Devi applied for permission to sell the property to the District Judge, Varanasi who granted the same by the order dated 19th of February, 1972 passed in Misc. Case No. 19 of 1972. The District Magistrate, Varanasi also granted permission to sell it by the order dated 9th of July, 1974 vide permission No. 1531/7-10-2-72-75 Ceiling. There is, thus, presently voluminous evidence in the shape of registered documents, i.e., Wills dated 21.8.1950 and 21.4.1966, permission granted by the District Judge dated 19.2.1972 and by District Magistrate dated 9.7.1974 to show that the property in question was validly purchased by the contesting respondent Nos. 2 to 5. On the other hand, except making a bald statement that Mukundi Lal was not the sole trustee, there is no evidence to show on the record (1) that there were other trustees other than Mukundi Lal and (2) the property in dispute was unauthorisedly transferred to the contesting respondent Nos. 2 to 6.
12. Besides, the documentary evidence, the circumstances do not also support the petitioner’s case that the respondent Nos. 2 to 6 have not become the owners of the property in question. It may be noted here that indisputably Gaya Prasad, the settler of the trust expired on 17th November, 1950 leaving behind his widow. The widow Smt. Sudhesra Devi did not raise any objection against the working of Mukundi Lal as sole trustee who died on 30.1.1954. It is not at all understandable as to why the original trustees who were appointed under the trust deed dated 28th of October, 1949 failed to question the authority of the settler to execute the registered Will dated 21st of August, 1950 and waited for about 27 years to institute the Civil Suit No. 111 of 1977. This is also a very strong factor which cannot be overlooked lightly. Moreover, Smt. Sudhesra Devi who succeeded after death of her husband Gaya Prasad also did not object about the registered Will dated 21st of August, 1950. Also in the municipal record the trust property has been mutated in the name of trust through Mukundi Lal, resident of Khajuwa.
13. The fact remains that till date neither the registered Will dated 21st of August, 1950 executed by Gaya Prasad appointing Mukundi Lal as sole trustee nor the registered Will deed executed by Mukundi Lal dated 31.4.1966 appointing Shri Ram and Smt. Urmila Devi have been cancelled so far. These documents are registered documents and there is a presumption of notice to every one. In this view of the matter, this Court is of the view that there are sufficient materials on record to show that the contesting respondent Nos. 2 to 5 rightly purchased the property in question and have become owner thereof in pursuance of the sale deed in their favour executed with the permission of the learned District Judge and the District Magistrate. The title of the petitioners shall be adjudicated upon in the Suit No. 111 of 1977 and presently in the presence of documentary evidence in favour of the respondents it cannot be said that there is any defect in their title.
14. Gulab Nabi Azad, the respondent No. 6, the tenant filed a Civil Suit No. 691 of 1989 against the contesting respondents alleging himself as the tenant of the property in question and treating the contesting respondents as owners and landlord and obtained an injunction order. According to the petitioner, the said suit is collusive suit in between the respondent Nos. 2 to 5 and respondent No. 6. There is nothing on record to show to come to the conclusion even prima facie that the said proceedings is collusive one.
15. It was vehemently argued that the proceedings initiated by the respondent Nos. 2 to 5 against the respondent No. 6 for declaration of vacancy and release were collusive proceedings and as such is not binding on the petitioner. Except saying so, no material has been placed on record to show as to how the proceedings were collusive. On the other hand, the collusion of the petitioner (Raja Singh who is self styled chief trustee) with the respondent No. 6, is apparent. Gulab Nabi Azad contested the vacancy proceedings and the release proceedings tooth and nail before the Rent Control and Eviction Officer, revisional court as well as in the High Court, unsuccessfully. This Court while dismissing the Writ Petition No. 2152 of 2001 filed by Gulab Nabi Azad granted him time to vacate the premises in question by 30th of April, 2001. Before the said date, the present writ petition was got reported from the Stamp Reporter on 4th of April, 2001 and was presented on 9th of April, 2001 and stay order was obtained on 12th of April, 2001 the writ petition has been very clearly drafted. There is no allegation that the petitioners are in any way in occupation of the disputed premises. Only this much has been stated in para 14 of the writ petition that if the release order is executed “in favour of the forged landlord then it will badly affect the civil litigation which is pending before the Civil Judge (Senior Division), Varanasi”.
16. During the course of the argument Shri M.A. Qadeer, the learned Counsel for the petitioner submitted that it is the petitioner who is in occupation of the disputed property and would be evicted therefrom but how, he could not tell. Obviously the present writ petition has been filed just to frustrate the release order obtained by the contesting respondents after fighting litigation over a period of more than 10 years.
17. Gulab Nabi Azad who is unauthorised occupant is enjoying the property in question without paying any rent or damages. He is guilty of committing contempt of court.
18. Shri C.K. Parekh, the learned Counsel for the respondents also submitted that the present writ petition besides a frivolous, is not maintainable as it has been filed by one Raja Singh, self styled principal trustee. He is not even a party in the suit allegedly filed on behalf of the trust being Suit No. 111 of 1977. He has not been appointed as trustee or chief trustee by any authority or court. The learned Counsel rightly submitted that Shri Raja Singh has to establish his locus first. It was not disputed by the learned Counsel for the petitioners that till date there is no order by any authority or court appointing Raja Singh as trustee of the trust in question. He could submit only this much that the other alleged trustees have appointed him through a registered document. Copy of the said document has been annexed alongwith the rejoinder-affidavit. Be that as it may, the appointment of Shri Raja Singh as Chief Trustee is very much doubtful. Unless and until it is established that he is one of the trustees, the contention that he cannot maintain a writ petition has got force and cannot be brushed aside lightly. No other point was pressed in the leading writ petition.
Writ Petition No. 2403 of 2007:
19. This writ petition is directed against the order dated 20.12.2006 passed by the respondent No. 1 ordering the issuance of Form D. The necessity to pass the said order arose on account of the fact that the lea ung writ petition was dismissed in default which was restored subsequently. But the stay order was not restored and the respondent No. 1 was of the view that in absence of any express order restoring the stay order, there is no stay order in operation. This writ petition was unnecessarily filed as it was open for the petitioner to have applied for grant of interim order in the leading writ petition. Evidently, the writ petition was filed for the sake of filing of the writ petition and to somehow obtain a stay order.
20. The upshot of the above discussion is as follows:
1. The registered Wills dated 21st of August, 1950, 21st of April, 1966, order of the learned District Judge granting permission dated 19th of February. 1972 and the order of the District Magistrate granting permission to sell dated 9th of July, 1974 clearly proves the title of the contesting respondent Nos. 2 to 5 for the time being unless these orders and documents are cancelled by a competent authority or court.
2. Question of title of the petitioner to the disputed property is subject matter of Suit No. 111 of 1977 and will be adjudicated upon in those proceedings. The petitioner has to establish his title first in the Suit No. 111 of 1977.
3. The collusion of the petitioner with the authorised occupant Gulab Nabi Azad, the respondent No. 6 is writ large and as such the petitioner is not entitled for any relief.
4. This is a second writ petition and is not maintainable as the validity of the impugned order has already been upheld by this Court in the Writ Petition No. 2152 of 2001 filed by Gulab Nabi Azad, the respondent No. 6, herein.
21. I have entered into the above discussion not to express an opinion, but to answer the main plank of the argument of the petitioner that the property in question is a trust property.
22. In view of the above discussion, there is no merit in either of the writ petitions and these petitions were filed with an oblique motive and the stay order was obtained for the benefit of respondent No. 6, who had already lost the case. Both the petitions are dismissed with cost of Rs. 10,000 in each petition. The cost shall be payable by Raja Singh, self styled chief trustee and the respondent No. 6, Gulab Nabi Azad jointly and severally. The District Magistrate/Rent Control and Eviction Officer shall recover the cost as arrears of land revenue from these persons and they are liable to pay jointly and severally to the contesting respondent No. 2 who shall receive it on his behalf and on behalf of the respondent No. 4 who filed the counter-affidavit. The District Magistrate, Varanasi and the Rent Control and Eviction Officer/ Additional District Judge (Civil Supplies), Varanasi are hereby directed to take immediate steps to evict the respondent No. 6, Gulab Nabi Azad including any person who may be found in occupation of the disputed property by force, if necessary, within a period of 15 days from the date of production of the certified copy of this order before them.