R SIVABALA DEVI Vs. D PAUL WIEBE PRINCIPAL

JUDGEMENT

(1.) This Crl.R.C. has been filed by the petitioners against the order of the Sub Divisional Magistrate and Revenue Divisional Officer, Kodaikanal made in M.C.No.1/91-(4) RoC.No.6084/92/A5 dated 24.7.1998.

(2.) The brief facts of the case that emerges from the materials available on record are as follows: The property known as Loch End at Kodaikanal consisting an extent of 6.48 acres is the subject matter and bone of contention between the petitioners and the respondents who are A parties and B parties in the proceedings before the Sub Divisional Magistrate and Revenue Divisional Officer, Kodaikanal . The said property was purchased by the Missouri Evangelical Lutheran India Mission on 28.11.1912. It consists of 15 buildings which include a Church, Class Rooms for Grade I&II of Kodaikanal International School,class room for Kinder Garden of School, residence of the school staff and also a place for worship. The Missionaries themselves ran Nursery and classes I to V for the education of their children. In 1930, the Missionaries handed over the school to the Kodaikanal International School. In 1947 when the Missionaries moved out of the country, the cottages were handed over to the school for their use and occupation and the Chapel was given to the I.E.L. Church. In 1975, the Missouri Evangelical Lutheran India Mission (MELIM) created a Trust for the properties owned by them in Tamil Nadu. The MELIM and Indian Evangelical Lutheran Church Trust Association (IELCTA) named as Trustee entered into agreement dated 20.09.1975 with regard to in what manner the Trust properties should be administered. O.P.No.101 of 1975 was filed in the District Court, Madurai under Section-7 of Charitable and Religious Trust Act,1920 by the above bodies seeking a decree of declaration that the Trust was created for the above properties and to appoint Indian Evangelical Lutheran Church Trust Association as the trustee to administer and manage the trust properties wherein it was mentioned that as per the agreement it was specifically stipulated that the Loch End Property at Kodaikanal would remain with Kodaikanal International School so long the School requires the Loch End for educational purposes. A decree was granted as prayed for on 26.11.1975 in the said O.P. On 26.04.1991 Rev.A.Sundaram, Secretary of IELCTA contrary to the decree in O.P.No.101/75 signed a sale agreement with R.Sivabala Devi-A Party, the revision petitioner herein to sell the Loch End property to her. It is alleged that when the school closed for summer vacation from 15.05.1991 to 15.07.1991, in the guise of breakdown of electricity and putting the Kodaikanal town and its suburban areas in darkness at the mid night of 30th June and 1st July the henchmen of the agree ment holder Siva Bala Devi trespassed into the Loch End compound and locked the gates. It is also further alleged that Thiru.A.N.Dyaneswaran IAS, a close relative of the first petitioner remained in the Loch End and warned the law enforcing agencies that the close associate of the Chief Executive of the State had purchased the property and effectively prevented the police from taking any action against the trespassers. All the representations submitted by the School to the Chief Secretary, the Home Secretary , the Director General of Police, D.I.G., S.P., D.S.P., and Inspector of Police and the Revenue Officials were not cared for. The Kodaikanal International School filed W.P.No.9551 of 1991 before the High Court seeking for a direction to the Authorities to discharge their duties in accordance with law. On 12.07.1991 Notice of Motion was ordered to the respondents returnable in one week and directed the Government Pleader to get necessary instructions. Immediately the District Authorities in the afternoon of 12th July 1991, directed the Armed Reserve Police to enter Loch End and to remove the trespassers and the school authorities were directed to come and take possession of Loch End and accordingly, the school took possession. By the intervention of the State Administration, in the morning of 13.07.1991 the police authorities directed the school authorities to leave Loch End forthwith as they could not give protection. Once again, the trespassers and their hooligans merrily entered Loch End and the insecurity made the school authorities to leave the property and the developments were reported to the Chief Secretary by telegram. On 13.07.1991, the Revenue Divisional Officer, Kodaikanal issued notice under section 145 Cr.P.C., to the petitioners herein arraying them as "A" Party and the respondents 1 to 4 as "B" Party directed them to appear before the R.D.O. for enquiry on 19.7.1991 to ascertain the possession of Loch End Property. On 19.7.1991 the "A" Party and their counsel were absent and therefore, the "B" Party was asked to state their case and accordingly they filed affidavits of 20 local residents and the other documents to prove their possession for more than 60 years and their evidence was also recorded. At 12.00pm the "A" Party appeared before the R.D.O. and represented that their senior counsel is on his way and in the afternoon, the counsel for the "A" Party reported that time should be given to file the statement of "A" Party and hence hearing was adjourned to the next day i.e., 20.07.1991. On the same evening "A" Party filed Suit O.S.No.66 of 1991 before the District Munsif, Kodaikanal for permanent injunction to restrain the school and the IELCTA from interfering with their possession of Loch End from 1.07.91 and the Tahsildar who was in-charge and functioning as District Munsif of Kodaikanal granted exparte interim injunction in the night. On 5.7.1991 Rev.Isaac Moon, the president of IELCTA sent a letter dated 05.07.1991 to the Police repudiating the agreement of sale as the same was void, since the Loch End Trust Property could not be sold. He also gave 2 more statements dated 13.07.1991 and 14.07.1991 to the Authorities with regard to the real state of affairs. The "B" Party school authorities instituted C.R.P.No.1846 of 1991 before the High Court against the exparte order of interim injunction and in the said C.R.P. the exparte interim injunction was stayed. By resolution dated 21.07.1991 the Committee of Management repudiated the agreement of sale dated 26.4.1991 in favour of the first petitioner and also suspended Rev.Sundaram who signed the agreement, from the post of Secretary. On 17.09.1991, the IELCTA issued a Legal Notice to the petitioners "A" Party recording that the agreement of sale executed by Rev. Sundaram was void and the said document was executed without the concurrence of the management of IELCTA and therefore, the cheque and the draft for Rs.10/- lakhs given as advance was returned. The notice so sent by R.P.A.D.was received by the first petitioner. The then R.D.O. by name Antony Raj was transferred and one Gomathinayagam was posted as the R.D.O.Kodaikanal. The new R.D.O., according to the respondents, wilfully delayed the pronouncement of the final orders and a new theory of partial possession to overcome Section 145 (4) Cr.P.C., was conceived and the Inspector of Police, Kodaikanal and the Deputy Superintendent of Police were forced to file petitions mentioning partial possession. Since the final order was delayed, respondents 1 to 4 filed Crl.M.P.No.5587 of 1991 before the High Court praying for appropriate direction and the High Court directed the R.D.O. to pronounce Final Order within the time fixed by the High Court. On 9.12.1991, the R.D.O. passed orders holding that the possession of Loch End was lawfully with the petitioners and it would remain undisturbed. Against the said order, the respondents 1 to 4 filed Cr.R.C.No.113 of 1992 before the High Court. On 11.7.1997 Crl.R.C.113/92, C.R.P.1845 of 1991 were allowed by a common order. On 23.7.97 pursuant to the order of the High Court, the Sub Divisional Magistrate R.D.O., Kodaikanal passed order in M.C.No.1(2)/1991 dated 23.07.1997 directing the delivery of possession of the Loch End property to the Kodaikanal International School and accordingly, on 24.7.1997 the Kodaikanal International School took possession of the above compound. Against the said order of the High Court and the order dated 23.07.1997 of the R.D.O., the petitioners preferred S.L.P(Crl.) Nos.2037 to 2039 of 1997 and S.L.P.(Civil)No.13958 of 1997 and S.L.P.(Crl.) No.2992 of 1997. On 24.3.1997 the above S.L.Ps were disposed of by the Supreme Court by making the following observations in S.L.P.(Crl.)Nos.2037 to 2039 of 1997:

(3.) On 24.7.1998, the Sub Divisional Magistrate R.D.O. Kodaikanal passed an order holding that the buildings in the property were forcibly opened and the household articles of the inmates and the belongings of the students were removed without their knowledge, resulting in many complaints by the "A" Party and that the Kodaikanal International School was forced to dispossess from the Loch End compound and invoking provisions of Section 145(4) of Cr.P.C., the learned R.D.O. has held that the school was retaining possession of the property is entitled to retain possession of the restored property till the contrary is decided in the appropriate proceedings of the court. Thereafter, on 23.9.98, the "A" Party- the petitioners herein filed S.L.P.No.3791 of 1998 against the order of the R.D.O.to set aside the impugned order as it was passed without affording opportunity to them and to direct re-hearing. They also filed Crl.M.P.Nos.6752 to 6754 of 1998 in S.L.P.No.2037 to 2039 of 1997 to clarify the order dated 24.03.1998 and to direct the Sub Divisional Magistrate to pass fresh orders under section-145 of Cr.P.C., after following the due process and after giving hearing to the parties. On 4.1.1999, the Supreme Court passed the following common order in SLP.No.3791 of 1998 and Crl.M.P.No.6752 to 6754 of 1998: