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Swami Indradevanand Guru Swami Shri Parmanandji Vs. the State of M.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 173 of 1974
Judge
Reported inAIR1977MP102
ActsMadhya Pradesh Public Trusts Act, 1951 - Sections 5(1), 6, 7, 8, 25, 26 and 27; Code of Civil Procedure (CPC) , 1908 - Sections 92; Constitution of India - Article 226
AppellantSwami Indradevanand Guru Swami Shri Parmanandji
RespondentThe State of M.P. and ors.
Appellant AdvocateS.K. Agarwal, Adv.
Respondent AdvocateM.L. Agarwal, Adv. (for No. 6) and ;S.L. Garg, Adv. (for Nos. 4, 5, 7, 10, 11 to 13 and 15)
DispositionWrit petition dismissed
Cases ReferredHasan Nurani Malak v. S. M. Ismail
Excerpt:
.....under section 6 to the effect that the institution is a public trust and the properties are trust properties and there is ample material in support of this conclusion and the revenue records and other materials support his conclusion and the registrar is justified in framing the scheme for the management of the trust properties as such scheme is in the interests of the institution as well as the general public. the act has been enacted to regulate and to make better provisions for the administration of public, religious and charitable trusts in madhya pradesh. if the registrar is satisfied that tine object of the trust has failed and the trust property is not being properly managed or administered and the direction of the court is necessary for the administration of the public..........act for holding an inquiry as to whether the properties mentioned therein are or are not public trust properties. the aforesaid notice annexure 'd' was published in the gazette of madhya pradesh on 4-4-1969. the registrar directed the sub-divisional officer to enquire into the matter and submit a report. the report of the sub-divisional officer was to the effect that the temple in question was not a public trust. this report was dated 15-7-1970. the registrar remitted the matter back for further report on the question whether there is a public trust or not and in case there is a public trust, who could be made the trustees. on further inquiry the sub-divisional officer submitted his report on march 22, 1971, to the effect that the temple and the properties in question constitute a.....
Judgment:

Kondaiah, J.

1. The petitioner claims to be the mahant of Shitaleshwar Mahadeo Temple situated at Karnalpura Indore. His mahantship descended on him according to guru-shishya parampara, a custom and usage recognized by the then Holkar State. In that capacity as mahant he is holding the properties exclusively to himself. The Registrar of Public Trusts, Indore, had issued a notice to him on 29-1-1969 under Section 5 (1) of the Madhya Pradesh Public Trusts Act, 1951 (hereinafter called 'the Act'), calling upon him to show cause why he should not be proceeded against under the Act for not getting the trust registered under Section 4 as public trust. The petitioner made representations to the Registrar in writing to the effect that there was no public trust and the temple and the properties belong to him personally. Thereafter the Registrar issued a notice under Section 5 (2) of the Act for holding an inquiry as to whether the properties mentioned therein are or are not public trust properties. The aforesaid notice Annexure 'D' was published in the gazette of Madhya Pradesh on 4-4-1969. The Registrar directed the Sub-Divisional Officer to enquire into the matter and submit a report. The report of the Sub-Divisional Officer was to the effect that the temple in question was not a public trust. This report was dated 15-7-1970. The Registrar remitted the matter back for further report on the question whether there is a public trust or not and in case there is a public trust, who could be made the trustees. On further inquiry the Sub-Divisional Officer submitted his report on March 22, 1971, to the effect that the temple and the properties in question constitute a public trust and gave a list of persons to be appointed as trustees. The Registrar by his order dated May 31, 1974 (Annexure 'E') declared the Shitaleshwar Mahadeo Mandir as a public trust and the petitioner only a manager and pujari of the institution and that the properties in question belong to the aforesaid public trust He has further framed a scheme for the management of the public trust and the properties belonging to it and declared the petitioner and 13 others as trustees after removing the petitioner from exclusive management of the properties of the institution. In the aforesaid order the Registrar has given definite findings that the institution in question is a public trust and the properties are trust properties and the petitioner is not the exclusive owner of the properties and the institution and is only a manager or pujari of this temple and the properties. Aggrieved by the decision and the findings given by the Registrar the petitioner has approached this Court to have this impugned order quashed and for issuance of appropriate writ or direction for the management of the properties and to continue him in the management of the properties and the temple,

2. The petitioner filed Annexures A, A-1, A-2 (the original gift deed), B, B-1, B-2 (the original sanad), C and D (the notices under Section 5 of the Act) and the other records in support of his case. Respondents 1 to 3 filed a return to the effect that the petitioner's claim that the institution and the properties belong to him personally is not true and it is a public trust and the properties are trust properties and the petitioner is only a manager or pujari of the temple and the lands in question have been described as entered 'Shri Mahadev Inam Devas-than Manager Vidhtanand Guru Vivekanand' in the Jild-Bandobast (settlement records) of the year 1925-26 and the ownership of the land vested in the Mahadey Devsthan and Shri Indradevanand the petitioner was described as the manager, the petitioner has an alternative effective remedy by a suit under Section 8 of the Act and the writ petition must be dismissed.

3. Shri S. K. Agrawal, learned counsel appearing for the petitioner, contended that the Registrar has no power and jurisdiction, to pass the impugned order in so far as it relates to the removal of his client from exclusive management and declaring 13 others along with him as trustees of the institution, that Shitaleshwar Mahadev Mandir is not a public trust but a private institution exclusively owned by the petitioner and the properties belong to him and the Registrar should have recourse to Sections 25, 26 and 27 of the Act for the appointment of the trustees, that in any event, there is no proper inquiry and the inquiry was defective and there was no notice nor notification as contemplated by Rule 5 and consequently the entire proceedings are illegal, erroneous and liable to be quashed. This claim of the petitioner is resisted by the learned Deputy Government Advocate contending inter alia, that the writ petition is liable to be dismissed in limine on the ground that the petitioner has effective and efficacious alternative remedy by way of suit under Section 8 of the Act and even on merits the inquiry by the Registrar under Section 5 is just, proper and valid and the Registrar has recorded his findings after due and proper inquiry under Section 6 to the effect that the institution is a public trust and the properties are trust properties and there is ample material in support of this conclusion and the revenue records and other materials support his conclusion and the Registrar is justified in framing the scheme for the management of the trust properties as such scheme is in the interests of the institution as well as the general public. Shri S. L. Garg learned counsel appearing for the other trustees, respondents Nos. 5, 7, 10 to 13 and 15, reiterated the stand taken by the Deputy Government Advocate and laid much stress on the availability of the alternative remedy to the petitioner. In reply, Shri S. K. Agrawal maintained that the alternative remedy by way of suit under Section 8 is not available to him in view of the fact that the Registrar has not made entries of the findings under Section 7 (1) and no publication of the same has been made under that section, that the suit is not an effective remedy as the Registrar has not recorded findings on all the matters specified in Section 5, and the impugned order is illegal and without jurisdiction.

4. Upon the respective contentions of the parties the following questions arise for decision.

(i) Whether on the facts and circumstances the petitioner has art effective alternative remedy by way of a suit under Section 8 of the Act ?

(ii) Whether Shitaleshwar Mahadev Mandir is or is not a public trust and whether the (properties, in question are or are not trust properties but the private properties of the petitioner

5. We shall first take up the question relating to alternative remedy of a suit under Section 8 of the Act. In order to appreciate the respective contentions of the parties in this regard it is not only profitable but necessary to refer to the scheme of the Act and, in particular, to the provisions pertaining to registration of public trust. The Act has been enacted to regulate and to make better provisions for the administration of public, religious and charitable trusts in Madhya Pradesh. The Act consists of six chapters having 38 sections. Chapter I refers to the short title, extent and operation of the Act and definitions. Section 2 (4) defines 'Public Trust' as an express or constructive trust for a public, religious or charitable purpose and includes a temple, a math, a mosque, a church, a wakf or any other religious or charitable endowment and a society formed for a religious or charitable purpose, 'Register' is defined in Sub-section (5) meaning a register maintained under Sub-section (2) of Section 3 of the Act, Sub-section (6) of Section 2 defines 'Registrar' as Registrar of Public Trusts, indicated under Section 3 (1) of the Act. Chapter II consisting of Sections 3 to 12 deals with registration of public trusts. Under Section 3 (1) the Collector shall be the Registrar of Public Trusts in respect of every public trust in his district. The Registrar has to maintain a register of public trusts under Sub-section (2) of Section 3. He has also to maintain such other books and registers and in such form as may be prescribed. The 'working trustee', who is defined in Section 2 (9) of the Act as a person who for the time being either alone or in association with some other person or persons administers the trust property, has a statutory duty under Section 4 (1) to apply to the Registrar having jurisdiction for the registration of the public trust, within three months from the date on which the section comes into force or from the date on which a public trust is created. The application shall be accompanied by such fee, if any, not exceeding five rupees as may be prescribed. The application shall also contain the particulars specified in Clauses (i) to (x) of Sub-section (3) of Section 4. The Registrar has to proceed with the application for registration of a public trust and decide about the registration of the public trust. The Registrar's decision under Sub-section (4) of Section 4 is appealable under Sub-section (5) to an officer as the State Government may appoint in this regard. The order of the Registrar under Sub-section (4), subject to the decision of appeal under Sub-section (5) shall be final in this regard. Sub-section (1) of Section 5 prescribes the inquiry to be conducted by the Registrar on an application under Section 4. The Registrar is bound to make an inquiry in the prescribed manner for the purpose of ascertaining whether the trust is a public trust, whether any property is the property of such trust, the origin, nature and object of such trust, the mode of succession to the- Office of the trustee of such trust, the names and addresses of the trustees and the manager of the trust and other particulars specified in Sub-section (1) of Section 5. The Registrar has to invite all persons interested in the inquiry to raise objections to such inquiry. He has to give a public notice of the inquiry proposed to be made under Sub-section (1) of Section 5. After completion of the inquiry under Section 5 the Registrar has to record his finding and his reasons therefor as to matters referred to in Section 5. This statutory duty of recording his findings with reasons is provided under Section 6. Section 7 requires the Registrar to cause entries to be made in the register in accordance with the findings recorded under Section 6 and publish on the notice board of his office the entries made in the register. Sub-section (2) of Section 7 makes it clear that the entries so made shall be final and conclusive. However, they are subject to the provisions of the Act and subject to any change under Section 9 of 'the Act or a rule made thereunder. Any person having interest in a public trust or in any property found to be trust property, if aggrieved by any finding of the Registrar under Section 6 is entitled to file a regular civil suit in a Civil Court under Section 8 (1) of the Act and have such finding set aside or modified. Any working trustee also can file a civil suit if he is aggrieved by any finding of the Registrar. The cause of action for filing a civil suit is the finding of the Registrar under Section 6. But, however six months' time from the date of publication of the notice under Sub-section (1) of Section 7 is provided for the purpose of limitation. The publication of the notice under Sub-section (1) of Section 7 would arise only when the Registrar had made entries in the register in accordance with the finding recorded by him under Section 6. Under Sub-section (2) of Section 8, in the civil suit provided under Section 8 (1) a Civil Court has to give notice to the State Government through the Registrar and the State Government shall be made a party to the suit if it so desires. Under Section 8 (3) the Registrar shall, if necessary, correct the entries made in the register in accordance with the final decision of the suit. Section 9 provides for occurrence of any change in the entries recorded in the register or the necessity to change the entries, if the working trustee or any one interested desires to have such entries changed in the interest of administration of such public trust. Where the working trustee desires to have any entries to be altered or changed in the interest of the administration of such public trust, the Registrar may, after due and proper inquiry, pass appropriate orders and change the entries if necessary after recording a finding with reasons therefor, and after following the prescribed procedure. Section 9 (3) makes the provisions of Section 8 to a finding under Section 6 (sic). A provision is made in Section 10 to intimate to all Collectors the entries recorded in the register in respect of properties situated in their district whereas Section 11 requires the executor of a will creating a public trust to make an application for registration of the trust in the manner provided in Section 4, within six months of the testator's death or within one month from the date on which probate of the will is granted. Section 12 requires the Civil Court or revenue officer to give notice to the Registrar when any document purporting to create a public trust is produced before them. Chapter III consisting of Sections 13 and 14 refers to the management of trust property whereas Chapter IV refers to maintenance of accounts, balancing and auditing of accounts, duties of the auditors to prepare balance sheet and to report irregularities, preparation of budget, its inspection, grant of certified copies of documents and returns and statements to be furnished to the Registrar. Chapter V refers to the powers of the Registrar and control of the Registrar over a public trust and provides for procedure to be followed after receipt of the report of the auditor and procedure for filling of vacancies. Section 22 of this Chapter provides for the powers of the Registrar with regard to the management of the trust properties whereas Section 23 prescribes the procedure after receipt of the report by the Registrar. Section 24 provides for an appeal by an aggrieved person from the decision of the Registrar under Section 23 to the Court to set aside the decision. Sections 25, 26 and 27 may be persued more carefully. Under Section 25, the working trustee has to inform the Registrar about any vacancy in the Board of Trustees and propose some names to fill the same. The language of the section makes it abundantly clear that the filling up of the vacancy in the Board of Trustees would arise only where a public trust is under the management of the Board of Trustees. On receipt of such information the Registrar may issue any directions to the working trustee regarding filling of vacancy and in case the working trustee fails to give information the Registrar may, by order passed in writing fill the vacancy and any person having interest in the public trust if aggrieved may apply to the Court for setting aside the order within thirty days from the date of such order. If the Registrar is satisfied that tine object of the trust has failed and the trust property is not being properly managed or administered and the direction of the Court is necessary for the administration of the public trust, he may after giving notice and opportunity to the working trustee, direct him to apply to the Court for direction under Section 26. Section 27 empowers the Court to make or cause to make such inquiry as it deems fit and pass such orders as it may consider appropriate on the application filed by the Registrar under Section 26. Any order passed by the Court under Sub-section (2) of Section 27 must be deemed to be a decree of such Court and appeal shall lie therefrom to the High Court under Sub-section (3) of that section. Sub-section (4) prohibits the filing of a suit relating to a public trust under Section 92 of the Code of Civil Procedure in respect of any matter where an application can be filed under Section 26. Chapter V consisting of Sections 22 to 27 would come into play only when there is a public trust and when there is a Board of Trustees in management but not otherwise. Sections 28 to 36 constitute Chapter VI which deals with miscellaneous matters. This in short is the scheme of the Act.

6. From a perusal of the various provisions of the Act we have no hesitation in holding that the cause of action for a civil suit contemplated under Section 8 is the finding recorded by the Registrar on completion of the inquiry provided for under Section 5. The cause of action being the recording of the finding by the Registrar notwithstanding the entries being made in the register under Section 7 (1) and the publishing of the same on the notice board of his office, a civil suit shall lie by any working trustee or person having interest in the trust property aggrieved by any finding of the Registrar under Section 6. The stress is not on the limitation. The period of limitation prescribed under Section 8 is six months from the date of the notice published under Section 7 (1). Where no entry or entries have been made in the register in accordance with the findings recorded by the Registrar under Section 6, the person or trustee aggrieved by such finding has cause of action to file a suit. The right to file a suit under Section 8 does not depend upon the Registrar's making the entries in the register or their publishing on the notice board in accordance with Section 7. The legislature has rightly thought fit and proper in their discretion to make the cause of action to |file a suit by an aggrieved party not to depend upon the unilateral act of the Registrar in causing the entry made under Section 7 (1). It is an independent cause of action which had accrued to the party under Section 8 (1). There may be cases, as in the present one, where the entries have not been made by the Registrar for some reason or other in the register in accordance with his findings recorded under Section 6 and no publication on the notice board of his office of the entries made by the Registrar. Still, the petitioner must be held to have a right to file a civil suit under Section 8 if he is aggrieved by any findings of the Registrar recorded under Section 6.

7. In the present case, the Registrar has found that the institution in question is a public trust and the properties in question are trust properties and rejected the petitioner's claim that the temple and the properties belong to him personally and he is entitled to be in exclusive management of the same. This right of the petitioner to institute a civil suit under Section 8 (1) has already accrued to him. The period of limitation prescribed under Section 8 is six months from the date of publication of the notice under Sub-section (1) of Section 7. As no such notice has been published by the Registrar the petitioner is amply within the period of limitation to institute a regular civil suit in the present case. As pointed out earlier, the question of publication of the notice under Section 7 (1) would arise only after the entries have been made in the register by the Registrar in accordance with his finding under Section 6. The petitioner can, without waiting for the Registrar making appropriate entries in the register, approach the Civil Court and institute a civil suit to redress his grievance.

8. The submission of Shri Agrawal that the procedure prescribed in Sections 25 to 27 for filling of vacancies of the trustees must be followed in the instant case cannot be acceded to. We are now on the question of the right of an aggrieved party to file a civil suit under Section 8 (1). The petitioner has not agreed or admitted that the institution in question is a public trust. The provisions of Sections 25 to 27 would come into play or operation at a later stage, that is, after the registration of the public trust and entries made to that effect, but not before or at the stage of registration of a public trust. The provisions of Section 25 itself would make it abundantly clear by reading the opening phrase 'Where a public trust is under the management of a Board of Trustees.........' The suit under Section 92 of the Code of Civil Procedure is not entertainable by any Court on any matter in respect of which an application can be made under Section 26, (See Section 27 (4)). This will not in any way come in conflict with a suit under Section 8. The cause of action for a civil suit under Section 8 is altogether different from the cause of action for a suit under Section 92 of the Code of Civil Procedure. The Act itself provides such a civil suit under Section 8. Hence, judged from any angle, we are satisfied that the petitioner has an effective, efficacious and speedy alternative remedy by a regular civil suit under Section 8. It is now well settled that where an equally efficacious and effective remedy of regular suit is open to a writ petitioner the High Court would not ordinarily entertain a petition under Article 226 of the Constitution of India (See Thansingh v. Superintendent of Taxes, AIR 1964 SC 1419, Tata Engineering and Locomotive Co. Ltd. v. Assistant Commissioner of Commercial Taxes, AIR 1967 SC 1401). The decision of a Division Bendh of this Court in Bhupendra Kumar Jain v. Y. S. Dharmadhikari, 1976 MPLJ 223 = (AIR 1976 Madh pra 110) on which strong reliance has been placed by Shri Agarwal is distinguishable on facts. Therein the petitioner was not challenging the valility of election of any particular candidate or candidates but the validity of the entire course of election and the alternative remedy of an election petition was held to be not appropriate or equally efficacious remedy as in the case on hand. This may be seen from the following passage of Raina J. who spoke for the Court at page 227 (of MPLJ) = (at p. 113 of AIR).

'There is a clear distinction between challenging the validity of the election of a particular candidate on certain grounds and challenging the validity of the election itself whereby certain candidates at the election were declared elected. We are of the view that where the entire election is challenged, an election petition would not be an appropriate remedy. In any case, it cannot be considered as an equally efficacious remedy.'

Hence this decision would not assist the petitioner in any way.

9. We are of the view that the petitioner can institute a regular civil suit under Section 8 of the Act. This view of ours gains support from a decision of the Supreme Court in Hasan Nurani Malak v. S. M. Ismail, AIR 1967 SC 1742. Therein an inquiry under Section 5 of the Act had been conducted by the Registrar in respect of a trust known as Mehdibaug founded in Nagpur in 1891 and its properties which were in possession of the appellant therein and he found that it was not a public trust. No entry had been made by the Registrar under Section 7 (1) about the findings recorded by him under Section 6 nor was there any publication under Section 7 (1). On November 1, 1'956 as a result of the reorganisation of States Vidarbha was merged in the Bombay State. The respondents therein filed a fresh application before the Registrar under the Bombay Act for making an inquiry. The appellants aggrieved by the initiation of the inquiry by the Assistant Charity Commissioner Bombay filed a writ petition in the Bombay High Court to quash the proceedings. The High Court of Bombay held that the inquiry was permissible and the writ petition was dismissed. In appeal to the Supreme Court it was held that though the entries made by the Registrar are final and conclusive such finality is subject to the decision of a Court in a suit under Section 8 challenging finding of the Registrar and the cause of action for such a suit is the finding of the Registrar and not the entry Shelat J. speaking for the Court observed at p. 1745.

'The cause of action for such a suit thus is the finding and not the entry which is merely consequential. It is therefore not right to say that a suit cannot be filed unless the Registrar has made the entry. The legislature besides, could not have left the right to file a suit on the mercy of the Registrar who may or may not make the entry. It is equally not correct to say that the Registrar has not to make an entry if his finding is in the negative ... ... ... ... ... In our view reading Sections 5, 6, 7 and 8 of the M. P. Act it is clear that the Registrar is enjoined upon to make an entry in the register of public trusts irrespective of whether his finding is in the affirmative or in the negative. For the entry he has to make is, the entry 'in accordance with his finding' whatever that finding is.'

Again, at page 1747 the learned Judge proceeded to observe :

'The contention that that inquiry was completed is not correct because the Registrar had yet to make the entry of his finding which he was bound to make under Section 7 of that Act. That being the position, the inquiry is saved by Sub- Clause (a) of Section 86 (3) and it is still pending and is governed by the M. P. Act In the result a fresh inquiry under the Bombay Act while the proceeding under the M. P. Act Ss still pending was not competent and the Assistant Charity Commissioner was precluded from entertaining it.'

10. For all these reasons stated above, we answer question No. (1) in the affirmative to the effect that the petitioner has a right to file a suit under Section 8 of the Act, In view of our finding on the petitioner's right to institute a regular civil suit we do not propose to examine the merits of the question No. (ii). That apart, the question whether a particular institution is a public trust and the properties are trust properties is a disputed question of fact which can be more conveniently decided after due and proper inquiry and full opportunity to the parties in a regular civil suit. In this view we do not propose to express any opinion on merits lest it may affect the interests of any party. The petitioner is at liberty to raise all the questions of fact as well as law, including the method and the manner of inquiry by the Registrar and the right and power of the Registrar to frame a scheme and appoint new trustees and the removal of the petitioner from sole and exclusive management of the trust properties, in a regular civil suit which can be filed by him as provided under Section 8 of the Act and therefore he can have no grievance even if no decision is given on merits.

11. The writ petition is therefore dismissed with costs payable to the Deputy Government Advocate. Counsel fee Rs. 250/- (two hundred fifty) payable to the Deputy Government Advocate only.


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