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CIVIL APPEAL NO. 4003 OF 2019
(Arising out of SLP (C) No. 24177 of 2017)
SHREE SHREE RAM JANKI JI …….APPELLANTS
ASTHAN TAPOVAN MANDIR & ANR.
JUDGMENT
The present appeal is directed against an order passed by the High Court of Jharkhand at Ranchi on 07.06.2017 directing the Central Bureau of
Investigation to investigate and to take appropriate action at the earliest and conclude the investigations preferably within six months. The High Court held as under:-
“……This Court is of prima facie view that land of the deity could not have been transferred in any case. This large scale illegality needs to be enquired into. Now the question is, who will do so? The land and trust which is involved in this case is of Ranchi. Allegation is against the
Government and the Board. Board consists of
2019 INSC 609 Government functionaries. In this case, another issue is illegally sanctioning of map by Government Officials. We find, as submitted by the petitioner that in one Public Interest Litigation being WP(PIL) No. 1531 of 2011 (Har Narain Lakhotia Vs. State of Jharkhand and Others) this Court directed the CBI to enquire/investigate the criminality part in giving such sanction in respect of many buildings of Ranchi. The said order has been upheld by the Hon'ble Supreme Court. This is also one of such case, which needs investigation.
16. On this background, this Court feels that this matter be also entrusted to the Central Bureau of Investigation for investigating the criminality part. This would also include the aspects and the intent involved in creation of Trust Deed dated 20.9.2005, transfer/conversion of land, permission of maps and all other incidental issues involved.”
2. The said directions were issued finding that the property of Deity Shree Shree Ram Janki Ji Asthan Tapowan Mandir[1] at Ranchi has been transferred against the mandate of the Trust Deed created by the author of the Trust to establish Shree Ram Janki Tapowan Mandir Trust[2] on 25.02.1948. The said Trust was reconstituted on 12.05.1987 by virtue of registered deed. Still further, by another deed dated 20.09.2005, there was again reconstitution of the Trust.
3. The High Court entertained the Public Interest Litigation preferred by Respondent No. 8, and held that there is no provision in the original Trust Deed to transfer/sale of the property of the Deity but with ulterior motive, new Trust Deed was prepared in the year 2005 to usurp the property of the Deity and to facilitate illegal transfer of land of the Deity.
4. The directions issued by the High Court are subject matter of challenge before this Court by the Trust and by Pujari of the Mandir. The argument is that there is provision to develop and transfer the property of the Deity. Some of the
2 Trust properties of the Trust were being illegally encroached by local inhabitants and for better return and to increase the funds, the properties were transferred. The appropriate approvals have been obtained from Bihar State Board of Religious Trust and that the learned Judicial Commissioner has granted approval of transfer of immovable property.
5. The High Court found that properties were endowed to the Deity by the Trust Deed of 1948 and that the Trustees became custodian of the same. The subsequent Trust Deed of 1987 again prohibits the Trustees from selling or transferring or settling a land of the Mandir or Deity. The Trust Deed of 1948 and that of 1987 were authored by Mahant Shri Janki Jiwan Sharan but subsequently on 20.09.2005 a new Trust Deed has been created. Mahant Shri Ram Sharan Dass registered the said Trust Deed though the founder was Late Janki Jiwan Sharan. The said Trust Deed has a clause by which landed property can be sold.
6. The High Court found that the permission of Jharkhand State Hindu Religious Trust Board granted in the year 2006 was based upon permission granted by Bihar State Board of Religious Trust in the year 1994 which was obtained by misrepresentation and fraud.
7. The writ petitioner has invoked the Public Interest Jurisdiction of the High Court, inter-alia claiming the following reliefs:- “(i) For issuance of an appropriate writ(s)/order (s)/ direction(s) or a writ in nature of mandamus commanding upon the respondents to conduct an inquiry preferably by an Agency other than the Agency of the State in the matter of illegal transfer of property belonging to Sri Ram Janki Tapowan Mandir Trust since the substantial properties of the trust has been misappropriated by the members of the Trust in connivance with the government officials for sale of land belonging to the Trust as well as for construction of building over the land considering the fact that the valuable property of the Trust has been illegally transferred to the private persons who have the support of the most of the higher authorities of the State.”
8. The Public Interest Litigation was filed by Respondent No. 8 projecting himself as a responsible and vigilant citizen of the Country and being a Hindu by faith, therefore, as under pious responsibility to protect the interest of the Deity as per his faith. The Respondent No. 8 has not lodged any report before the concerned police station making grievance of any one of the facts stated in the writ petition so as to initiate the process of investigations under the Code of Criminal Procedure, 1973[3]. The writ petitioner has not made any grievance to any public authority in respect of the alleged transfers by the Trustees as well.
9. The High Court has passed an order directing investigation by Central Bureau of Investigation by casually returning a finding that permission was obtained by the Trust by misrepresentation and fraud. The High Court was again not careful to return findings on the disputed questions of fact and that too in a public interest writ petition.
10. The vesting of the property in Deity is a religious endowment but has no public element in it, the grievance of which can be made in a writ petition filed in the public interest. We do not say any more than the fact that the High Court should have refrained from entertaining such Public Interest Litigation in respect of alleged wrongful sale of property of the religious bodies.
11. Section 44 of the Bihar Hindu Religious Trust Act, 1950[4] gives power of transfer of immovable property of a religious trust after taking previous sanction from the Board. Such permission is to convert any property of the Trust after approval of the District Judge as provided by Section 28 (j) of the Act. The stand
4 Act of the appellants is that they have obtained approval as contemplated by the Act and such approval has been sought as an act of prudent management. Therefore, the High Court was not justified in creating a suspicion on an act of transferring the land of the Deity.
12. The question as to whether the High Court could direct CBI to take over investigation in the facts of the present case needs to be examined. The Constitution Bench in its judgment reported as State of West Bengal and Others v. Committee for Protection of Democratic Rights, West Bengal and Others[5] has examined the question as to the rights of CBI to investigate a criminal offence in a State without its consent. This Court examined Entry 2 of List II of VII Schedule of the Constitution. It was held that the legislative power of the Union to provide for the regular police force of one State to exercise power and jurisdiction in any area outside the State can only be exercised with the consent of the Government of that particular State in which such area is situated. The Court held that though the Court had wide powers conferred by Articles 32 and 226 of the Constitution, but it must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigation or where the incident may have national or international ramifications or where such an order is necessary for doing complete justice and enforcing fundamental rights. The relevant extract from the judgment reads as under:-
13. The Court approved earlier two Judge Bench Judgment reported as Secretary, Minor Irrigation & Rural Engineering Services, U.P. and Others v. Sahngoo Ram Arya and Another[6] wherein it was held that the High Court under Article 226 of the Constitution can direct inquiry to be conducted by CBI but such power can be exercised only in cases where there is sufficient material to come to a prima facie conclusion that there is need for such inquiry. It was held that it is not sufficient to have such material in the pleadings. The Court also held that the right to live under Article 21 include the right of a person to live without being hounded by the police or CBI to find out whether he has committed any offence or is living as a law-abiding citizen. The relevant extracts from the judgment read as under:-
6. It is seen from the above decision of this Court that the right to life under Article 21 includes the right of a person to live without being hounded by the police or CBI to find out whether he has committed any offence or is living as a law-abiding citizen. Therefore, it is clear that a decision to direct an inquiry by CBI against a person can only be done if the High Court after considering the material on record comes to a conclusion that such material does disclose a prima facie case calling for an investigation by CBI or any other similar agency, and the same cannot be done as a matter of routine or merely because a party makes some such allegations. In the instant case, we see that the High Court without coming to a definite conclusion that there is a prima facie case established to direct an inquiry has proceeded on the basis of “ifs” and “buts” and thought it appropriate that the inquiry should be made by CBI. With respect, we think that this is not what is required by the law as laid down by this Court in the case of Common Cause.”
14. It is the said findings, which were approved specifically by the Constitution Bench in State of West Bengal (supra) holding as under:-
15. A three Judge Bench Judgment reported as Sujatha Ravi Kiran v. State of Kerala and Others[8] held that the extraordinary power of the Constitutional Courts in directing CBI to conduct investigation in a case must be exercised rarely in exceptional circumstances, especially, when there is lack of confidence in the investigating agency or in the national interest. This Court held as under:-
16. In another three Judge Bench Judgment reported as K.V. Rajendran v. Superintendent of Police, CBCID South Zone, Chennai and Others12, it was held that the Court could exercise its constitutional powers for transferring an investigation from the State investigating agency to any other independent investigating agency only in rare and exceptional circumstances. The Court gave instances such as where high officials of State authorities are involved, or the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, and to instil confidence in the investigation.
17. In another two Judge Bench Judgment reported as Bimal Gurung v. Union of India13, this Court held that the power of transferring such investigation must be in rare and exceptional cases where the Court finds it necessary in order to do justice between the parties and to instil confidence in the public mind. It was held as under:-
18. In an earlier two Judge Bench Judgment reported as T.C. Thangaraj v. V. Engammal and Others14, this Court found that merely because complaint was against the police officer, the investigations should not be entrusted to Central Bureau of Investigation. The Court held as under:-
19. We find that the finding recorded by the High Court that the Deity could not transfer its land in any case is not tenable. The appellant relies upon statutory provisions in support of its stand to transfer of land. The sweeping remarks that the allegations are against the Government and the Board which consist of Government functionaries; therefore, the matter requires to be investigated by CBI are wholly untenable and such sweeping remarks against the Government and/or the Board should not have been made. The functioning in the Government is by different Officers and the working of the Executive has inbuilt checks and balances. Therefore, merely because, permission has been granted by a functionary of the State Government will not disclose a criminal offence. The High Court has thus travelled much beyond its jurisdiction in directing investigations by CBI in a matter of sale of property of the Deity. Still further, the High Court has issued directions without their being any complaint to the local police in respect of the property of the religious Trust.
20. It may be kept in mind that the public order (Entry 1) and the police (Entry
2) is a State subject falling in List II of the VII Schedule of the Constitution. It is a primary responsibility of the investigating agency of the State Police to investigate all offences which are committed within its jurisdiction. The investigations can be entrusted to Central Bureau of Investigation on satisfaction of the conditions as specified therein only in exceptional circumstances as laid down in State of West Bengal (supra) case. Such power cannot and should not be exercised in a routine manner without examining the complexities, nature of offence and some time the tardy progress in the investigations involving high officials of the State investigating agency itself.
21. We find that the High Court has completely misdirected itself in directing the Central Bureau of Investigation to take over investigation in a matter which relates to the rights of the trustees to sell property of a religious Trust or Deity, giving rise to civil dispute.
22. In view of the above, the appeal is allowed. The order of the High Court is set aside and the writ petition is thus dismissed...….…………………………………….J. [Dr. Dhananjaya Y. Chandrachud].…………………………………………J. [Hemant Gupta] New Delhi May 1, 2019.