# 2 S.C.R. SUPREME COURT REPORTS BISHAN DAS AND OTHERS v. THE STATE OF PUNJAB AND OTHERS

- **Citation:** [1962] 2 S.C.R. 69
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Writ Petition No. 24 of 1960
- **Bench:** B. P. Sinha, s. K. DAS, A. K. Sarkar, N. Rajagopala Ayyangar, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2-s-c-r-supreme-court-reports-bishan-das-and-others-v-the-state-of-punjab-and-2286
- **Pages:** 13

## Headnote

69
Fundamental Rights, Infringement of-Dharmasala constrnct·
ed with Joint family funds on Government land with Government's
permissio .. -]oint family members bona fide in possession and
management-Evictio" by executive action-Constitutiona/ityConstitution of India, Arts. r4, 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 !or the issue of appropriate writs under Ar.t. 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 Jaw 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 Bhuttacharfee,
(1866) 6 W.R. 228, Lala Beni Ram v. Kundan Lall, (1899) L.R.
26 LA. 58, and Narayan Das Khettry v. ]atindranath, (1927) L.R.
45 LA. 218, referred to.
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
April r9.
Bishan Das
v.
State of Punjab
70
SUPREME COURT REPORTS
[1962]
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 authority.
ORIGINAL JURISDICTION: Writ Petition No. 24 of
1960.
Petition under Art. 32 of the Constitution of India
for the enforcement of Fundamental Rights.
C. B. Aggarwala and K. P. Gupta, for the petitioners.
N. S. Bindra and D. Gupta, for respondents Nos. I, 2
and 4.
K. L. Mehta and K. L. Hathi, for respondent No. 3.
1961.
April 19.
The Judgment of the Court was
delivered by
s. K. Das J.
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 rail way 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, te

## Text

l
I
2 S.C.R. SUPREME COURT REPORTS
BISHAN DAS AND OTHERS
v.
THE STATE OF PUNJAB AND OTHERS
(B. P. SINHA, c. J., s. K. DAS, A. K. SARKAR,
N. RAJAGOPALA AYYANGAR and J. R.
MUDHOLKAR, JJ.)
69
Fundamental Rights, Infringement of-Dharmasala constrnct·
ed with Joint family funds on Government land with Government's
permissio .. -]oint family members bona fide in possession and
management-Evictio" by executive action-Constitutiona/ityConstitution of India, Arts. r4, 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 !or the issue of appropriate writs under Ar.t. 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 Jaw 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 Bhuttacharfee,
(1866) 6 W.R. 228, Lala Beni Ram v. Kundan Lall, (1899) L.R.
26 LA. 58, and Narayan Das Khettry v. ]atindranath, (1927) L.R.
45 LA. 218, referred to.
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
April r9.
Bishan Das
v.
State of Punjab
70
SUPREME COURT REPORTS
[1962]
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 authority.
ORIGINAL JURISDICTION: Writ Petition No. 24 of
1960.
Petition under Art. 32 of the Constitution of India
for the enforcement of Fundamental Rights.
C. B. Aggarwala and K. P. Gupta, for the petitioners.
N. S. Bindra and D. Gupta, for respondents Nos. I, 2
and 4.
K. L. Mehta and K. L. Hathi, for respondent No. 3.
1961.
April 19.
The Judgment of the Court was
delivered by
s. K. Das J.
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 rail way 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 tra veiling public and was used as a rest
house by travellers; three deities were installed in the
t
t
2 S.C.R. StJPR'ffiM-re COURT RKPORTS
71
temple and members of the public offered worship
r96r
therein, though there was no formal dedication; and
Bishan Das·
the shops were let out on rent for the upkeep of the
v.
dharmasala and temple. They allege that after the State of Punjab
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, Bafnala, by
force and without any authority of law dispossessed
them from the dharmasala in question and further
deprived them of the control and mll.nagement 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 SubDivisional Magistrate, Sangrur, if any, culminating
in the handing over of possession, management and
control over the dharmasala, the tern pie and the
shops to the Municipal Committee, Barnala, dist.riot
Sangrur;
(ii) a suitable writ, order or direction be issued
S. K. Das].
Bishan Das
v.
Slate of Punjab
S. K. Das ],
72
SUPREME COURT REPORTS
(1962]
prohibiting the respondents from interfering with
the management and control of the petitioners over
the temple and the shops and wiLh the realization
of rent of the shops by the petitioners;
(iii) a suitable writ, order or direction be issued to
the repondents to wi~hdraw 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 in-charge 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) :
"(l) 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 maintain it.
'
t
1
I
I
I
...
2 S.C.R. SUPREME COURT REPORTS
73
(3) Plans of the building which they want to construct should at first be presented before me (Assistant Surgeon in-charge).
(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, Barna.la, 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 moPth. I have appointed one man as
inn-keeper at the rate of Rs. 11 per month out of
10
1961
Bishan Das
v.
State of Punjab
S. K. Das].
Bishan Das
v.
State of Punjab
S. [{. Das ].
74
SUPREME COURT REPORTS
(1962]
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
escheat 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
Sana.tan Dharma Sabha, Barna.la. Again, an enquiry
was held and it was found by the Nazim, district
Barna.la, that the dharmasala and temple were constructed by Ramji Das; that he employed three employees-one pandit for worship etc., one for looking
after the travellers, 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
.J..
•
2 S.C.R. SUPREME COURT REPORTS
75
obtained further perrni~sion to make a raised platform
and other extensions, details whereof are not necessary for our purpose.
We then come to 1954. On Scptcmbc1· 10, 1954,
one Go pal Das, Secretary, Congress Committee, Barna la, filed a petition to Lhe Revenue Minister, l'atiala,
in whinh vario1rn allegations were made 11,gaiust
Ramji Das n,nrl it was prayed that Ramji Das be susp0nded and the management of the d harmn,sala etc.
be taken over by the State. This petition was enquired into by the Tahsildar, who again found that
the dharmasala was constructed by Rn,mji Das on
Government land, that the dharmas?.la was for public
benefit and that H,amji 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 Remembrancer
of the State Government. This officer referred to the
earlier order of the Revenue ~inister and pointed out
that the dharmasala and temple, though built on
Government htnd, were not Government propert,y and
even th1mgh R::1mji Das w::1s 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 t)lere was a direction th:i,t a deed of trust
should be executed appointing ltamji Das and two
other persons as trustees. 1\o 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, templn anJ the shops appurtenn,nt thereto. This
was not seriously disputed before us.
The petitioners
Bishan Das
v.
Stale of Punjab
S. 11.·. Das].
Biskan Das
v.
Slate of Punjttb
S. K. Das ].
76
SUPREME COURT REPORTS
(1962]
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
public. 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 respnndents has
produced before us the letter which the Deputy Commissioner wrote. This letter says:
.
Me.mo.
"Subject: Management of 'Sarai' near
Railway Station, Barnala.
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 pro-
•
perty, 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
public welfare. Shri Ra.mji Das, manager is reported to have died and there iq none else to manage
;.
'Sarai'. The S. D. 0., Barnala, has recommended
that in the interest of the Government, tho i:nanagcment of the 'Sarai' m::ty immediately be entrusted
to the ll'L C., Barn::tla.
I also fully agree with the
views of tho S. D. 0., 1hrnala, who has accordingly
been directed to hand over the mana.gement to
the M. C. in anticipation of nppl'Oval of the Government."
In pursuance of the direction given hy the Deputy
Commissioner, the Kanungo presumably in accordance
J
2 s.c.R. SUPREME COURT REPORTS
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!aw; 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 he has contended, on the strength of the decision of this Court in
Bohan Lal v. The Union of India('), 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 dispute;
therefore, proceedings by way of a writ are not appropriate in· this case inasmuch as the decision of the
(r) [1957] S.C.R. 738.
Bishan Das
v.
State of Punjab
S. K. Das J.
Bishan Das
v.
78
SUPREME COURT REPORTS
{1962]
Court would amount to a decree declaring a party's
title and ordering restoration of possession.
State of Punjab
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 Iicenc~upled with a grant or
an irrevocable licence within the meaning of s. 60(0)
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, 011 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 (');Lala Beni Ram v. Kundan
Lall(') 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 appliu1ttion of the maxim quicquid plantatur solo, solo cedit. It is, therefore, impossible to hold·
S. K. Das].
(1) (1866) 6 W,R. 228.
(2) (1899) L,R. 26 I.A. 58.
(3) (1927) L.R. 54 I.A. 218.
•
2 S.C.R. SUPREME COURT REPORTS
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 vali-
. dity of the trust.
Learned Counsel for the respondents has drawn our
attention to the statement of Ramji Das made in 1925
and the order of the Revenue Minister dated Decem.
her 13, 1954, and bas contended that Ramji Das him.
self admitted that he was a mere 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 nmst,
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 viola.
ted 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
.>"'.;
Bishan Das
v.
State of Punjab
S. K. Das],
80
BUPREME COURT REPORTS
[1962]
z96z
petitioners in the management of the dharmasala,
temple and shops. A writ will now issue accordingly.
Bishan Das
Before we part with this case, we feel it our duty
state 0j' Punjab to say that the executive action taken in this case by
--
the State and its officers is destructive of the basic
s. K. Das J.
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 aud dispossessing the petitioners
by the display of force, exhibits a callous disregard of
the normal requirements of the rule oflaw 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('), 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 (') 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, Barna.la, can step in as
trustee on an executive determination only. The
reasons given for this extraordinary action are, to
(1) [1955] 1 S.C.R. 408.
(2) [1953] S.C.R. 1129.
I
\
t
2 S.C.R. SUPR:ffiME COURT Rll:POR1'S
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.
Petition allowed.
CARL STILL G. m. b. H. & ANOTHER
v.
THE STATE OF BIHAR AND OTHERS
(S. K. DAS, J. L. KAPUR, M. HIDAYATULLAH,
J.C. SHAH and T. L. VENKATARAMA ArYAR, JJ.)
Sales Tax-Construction works-Interpretation of contractSupply of materials-Legality of tax thereon-SaZ.s Tax authoritieJ;
taking proceedings to levy tax-Writ petition to
~uash proceedings
-Maintainability-Bihar Sales Tax Act, r947 (Bihar I9 of r947),
s. 2-Constitution of India, Arts. 226, 227.
On December 19, 1953, the appellant, a company registered
in West Germany, entered into a contract with a company in
India to set up a complete coke oven battery ready for production as well as by-products plants at Sindri in the State of
Bihar, agreeing to erect and construct buildings, plants and
machinery and deliver and supply accessories and articles from
Germany and also locally from India, an.d render services fully
described in the First Schedule, for an all inclusive price of
Rs. 2,31,50,000. The contract provided that in case the contractor failed to complete the works within the period specified
therein the Indian company might take possession of the works
and the materials which would become its property and complete the works and deduct from the agreed price the expenses
incurred in such completion. Under cl. l5(ii) of the contract
all materials brought by the contractor upon the site shall immediately b.ecome the company's property, hut such of them as
during the progress of the works were rejected by the company
ceased to be Company's property, and after the coke oven and byproducts plants had been constructed the contractor was entitled
to remove the surplus materials. The clause further provided that
the company shall not be liable for any loss if the materials were
destroyed by fire or otherwise. Under the Bihar Sales Tax Act,
1947, in a contract for execution of works, the materials used
11
Bishan Das
v.
State of Punjab
S. K. Das j.