HIGH COURT OF CHHATTISGARH: BILASPUR W.P.(C)No.1298of2007 PETITIONER: RESPONDENTS: -Versus- Ramnarayan Agrawal State of Chhattisgarh and others POST FORORDER ON ^"AUGUST, 2010 .J?a^(a ^teSe"^ .•3?--' ,s*l*i<^ rf''^ ''%» HIGH COURT OF CHHATTISGARH AT BILASPUR W.P.(C) No.1298 of 2007 PETITIONER: RESPONDENTS: -Versus- 1. <N 2. 3. 4. 5. 6. 7. 8. 9. 10. Ramnarayan Agrawal, aged about 53 years, S/o Raghuvanshi Lal Agrawal, R/o Purani Basti, Raipur, District Raipur(CG) State of Chhattisgarh, Through the Secretary.Nagar Prashashan, DKS Bhawan, Mantralaya, Raipur, District Raipur (CG) Registrar, Public Trust (Collector) Raipur, District Raipur (CG) V.K. Singh, S/o Yuclhdavar Singh, R/o Om Vihar, VIP Road, Raipur (CG) Sub Divisional Officer (Revenue) Raipur, District Raipur (CG) Ramesh Modi, S/o late Chhagan Lai Modi, R/o Modi Chhaya, Sector-5, Devendra Nagar, District Raipur (CG) Rajendra Singh, S/o Dhanurdhari Lal Singh, R/o Jagriti Nagar, Govind Mandal, Raipur, District Raipur (CG) Sushil Malani, S/o Vikash Roy Malani, R/o Dungaji Colony, Raipur, DistrictRaipur (CG) Surendra Jain, S/o Satyanarayan Jain, R/o B-4, Anupam Nagar, Raipur, District Raipur (CG) Leeladhar Chandrakar, S/o Sarju Prasad Chandrakar, R/o New Rajendra Nagar, Samata Colony, House No.308, Raipur, Distriet Raipur (CG) Krishna Kumar Tomar, S/o Jaychand Tomar, R/o Khanij Nagar, M.P. Road, Raipur, District Raipur (CG) -y .i"..^*. "s ,y :!!i-»• '^^'^ <" >»- y. 11. Amarchand Agrawal, S/o Badri Prasad Agrawal, R/o House No.151, Samta Colony, Raipur, DistriGt Raipur (CG) 12. Harshad Seth, S/o late Harilal Seth, R/o Gurukripa, 34/127 Chhotapara, Fire Briged Chowk, Raipur, District Raipur (CG) 13. Anop Agrawal, S/o Ghanshyam Agrawal, R/o P- 3, Ravi Nagar, Raipur, District Raipur (CG) 14. Atmabodh Agrawal, S/o Lalchand Agrawal, R/o Yugbodh Prakashan, Samta Colony, Raipur, District Raipur (CG) Present and 4. Shri Prafull Bharat, counsel for the petitioner. Shri Vinay Harit, Deputy Advocate General for respondentsNo.1,2 Shri Yashwant Tiwari, counsel for respondents No.3 & 5 to 14. Sinale Bench: Hon'ble Shri Dhirendra Mishra, J. ORDER (Passed on ^V^ugust, 2010) 1. The petitioner by the instant petition under Article 227 of the Constitution of India has prayed for quashing of the orderdated 18-1-2007 (Annexure-P/3) passed by the 11 Additional District Judge,Raipur whereby the petitioner's application under Section 25(3) of the Trusts Act has been dismissed as not^maintainable. The petitioner has also prayed for quashing the order dafed 25-2-2006 (Annexure-P/1) passed by the SDO, Raipur, respondentl No.4 whereby non-applicantshave been appointed temporary trustees of the trust namely, 'Ramchandra Swami Trust". ! •? ..•s~< <? ^^•^•x ^. •^ 2. Case of the petitioner is that Thakur Ram Chandra Swami Dudhadhari Math is a public trust registered 1966. After the death ofl under the Public Trusts Act in the year its sole chief trustee Shri Ramdwarika L.al Agrawal, the Registrar made a reference to the civil court under Section 26 of the Public Trusts Act (for short 'the Act') on 27-7-1972 for appointment of trustee. During the pendency of the above reference, respondents No.3 and 5 fo| 14, moved anapplication under Section 9of the Act for appointment of trustee and the same was allowed and the Registrar appointed them temporary trustee. 3. Being aggrieved by the order of the Registrar, the petitioner preferred an application under Section 25 (3) of the Act before the civil Court and his application for temporary injunction was allowed by the civil Court. However, subsequently application under Order 7 Rule 11 CPC filed by the aforesaid respondentsiwasallowedand the petitioner's application under Section 25 oftheActlwas dismissed as not maintainable. 4.3hri Prafull Bharat, learned counsel for the petitioner argued that for exercising jurisdiction under sub-section (2) of Section 9 of the Act, it is necessary that the report is received from the working trustee expressing his desire to change and the Registrar, afterconducting enquiry, is satisfied that change is necessary in the entry. Thus in the absence of two basic ingredients of Section 9, the Registrar had nojurisdiction under Section 9oftheAct. 5. Sub-section (1) of Section intimate the Registrar of any empowers the Registrar regarding filling of such vacancy l^ 25 casts a duty on the working trustee to vacancy in thetrust whereas sub-section (2) to issue direction to the working trustee not inconsistent with any instrument of ',^^bi /y^ ^* trust or mode of succession specified in the register; whereas, sub- section (3) of Section 25 gives jyrisdiction to the Registrar Public Trust in case working trustee failsl to give information or appoinVfill vacancy. Sub-section (3) further prescribed that any person having interest in the public trust being aggrieved by the order of the Registrar may apply to the Court for setting aside the order of the Registrar. 6. In the instant case, the sole working trustee expired in the year 1972 and a reference was made by the Registrar to the civil Court in the year 1972, therefore, question 6f intimation by the workingtrustee regarding change does not arise and there was no question of making reportof desire to have change untfer sub-section (1) of Section 9. Since the working trustee had not intimated any change, sub-section (1) of Sectipn 9 was not applicable. In the absence of any report submitted by the working trustee, the Regis^rar had no jurisdiction to make any enquiry and amend entry as provided under Section 9(2) of th&Act. The only provision which could be invoked by the Registrar in the factsofthe present case wasunder Section 25 of the Act. Sinee there was no working trustee, sub-sections (1) & (2) of Section 25 were not applicable and the Registrar had jurisdiction under sub-section (3) of Section 25 to fill vaeancy which has been done in the instant case. Thus, the order of the Registrar (Annexure-P/1) was in exercise of the jurisdictionunder sub-section 25 (3) of the Act and the petitioner had remedy of moving an application under Section 25 (3) in the civil Court and conclusion that the order passed by the Registrar was under Section 9 of the Act and, therefore, the same could | be challenged by way of civil suit is wholly erroneous. ;? i| ii,.^vS&. 4 ";?alSSSSU"% •Sr'- //$) Reliance is placed in the matter of Phoolchand Jain and others Vs. Registrar, Public Trusts, Satna, hfl.P. and others {AIR 1974 Madhya Pradesh 55}. 7. On the other hand, Shri Vinay Harit, learned counsel for the respondent/ State would argue that the Collector vide its order dated 6-2-2006 (Annexure-R/1) delegated powers ofthe Registrar Publie Trust for Raipur to respondent No.4. Respondent No.4 in his capacity as Registrar ofthe Public Trust was authorized to pass any order.Sub-section (2)of Section 9 specifically confers powers on the Registrar to effectany change or amend any entry in the register of public trust in accordance with finding arrived at by him as a result of any enquiry. The Division Bench ofthe Madhya Pradesh High Gourt in the case of Shri Ramjanki MandirTrust and another Vs. State of Madhya Pradesh and others {AIR 1990 Madhya Pradesh41} has endorsedl theabove view. The petitioner's application under Section 25 (3) of the Act agairist the order of Annexure-P/1 was erroneously registered as civil suit. Learned Additional District Judge, vide Annexure-P/3, rejected the contention ofthe petitionerthattheorder was passed under Section 25 of the Act and it has been held that the Registrar Public Trusts has appointed temporary trustee in the exercise ofpowers underSection 9 of theAct and the provisions ofSection25 are attracted only where permanent appointments of trustees are made under Section 25 of the Act and, therefore, the instant petition is not maintainable. From perusal oforder of Annexure-P/T, it is evident that the same has been passed in exercise of powers under Section 9 of the Aet and, therefore, finding of the civil Court that the petitioner's application under Section ?5(3) is not maintainable as he had remedy of filing civilsuit is strictly in accordance with law. | ••^>. ^;; ^^> ^ s'^fi-^'^i ;x. ^y •«53as??"'' •\-'. •^•' 8. Shri Yashwant Tiwari, learnedcounsel appearing for private respondents advancing similar arguments contended that the impugned order of Annexure-P/1 was passed by the Registrar in a proceeding initiated underSection 9(1) of the Act. The Registrar has assigned reasons for appointment of temporary trustee as management and security of trust property was necessary during pendency of reference proceedings in civil Court. The order was interim in nature and for the period till appointment of trustee of tiust in a pending proceeding under Section 26 oftheAct. The remedy available to the petitioner, who is third party, is under Section 8 of the Public Trusts Act and the instant petition is not maintainable. The civil Coyrt has rejected petitioner's application under Section 25 of the Act and directed him to file civil suit before the competent civil Court. His application for appointing him as trustee in MJC No.23/2004 {Public Trusts Vs. Ramdwarika Lal Agrawal} and his separate application under iSection 25 ofthe Public Trusts Act in civilsuit No.19-A/2006was not m^intainable. A reference in MJC No.23/2004 under Section 26(2) ofthelActhasalso been rejected vide order dated 16-3-2009. . 9. Heard learned counsel forthe parties and perused the record. lO.From the pleadings of the respective parties, documents available on record and perusal of the impugned order, the undisputed facts are:- • Thetrust was registered in the year 1966 and Ram Kishore Sao was appointed Sarvarakar/Working Trustee. After his death, his son Ramdwarika Lal Agrawal was appointed as working trustee. It also appears that i after the death of Ram KishoreSao on 26-3-1969, his son Ramdwarika Lal Agrawal filed an application underSection 26(2) oftheAct for appointmentof trustee in the year 1972. During the pendency of the above JS- f •Sr'- application, the private respondentsfiled an application to appoint them as newtrustees under Section 9(1) of the Act on theground that ChiefTrustee Ramdwarika Lal Agrawal has diedwithout leavingany legal heir. Their appointment as trustees, to save the property from misuse and to achieve objects of the trust,is necessary. The Registrar after registerjng the case invited Qbjections/suggestions from the public at lange and after recording statements of the applicants, appointediV.K. Singh as chief trustee, Leeladhar Chandrakar as SecretaFy.AtmabodhAgrawal as treasurer and other respondents as members of the Board of Trustees on temporary basis and till decisions in MJC No.36/1972 pending in the Civil Court (Annexure-P/1). \ • The petitioner challenged the above order by filing an application under Section 25 (3) df the Act before the civil Court,which was registered as Civil Suit N0.19-A/2006 and order of temporary injunction was passedi by learned District Judge (Annexure-P/2) restraining the private respondents from encroaching upon the suit property or undertakinglany construction over the same. However, learned 11 Additional District Judge allowed the application preferred by the private respondents under Qrder 7 Rule 11 of the CPC and rejected the application Ipreferred by the petitioner with a finding that application under Section 25 of the Act is not maintainable. • Shri Ramchandra Swami Trust is a registered public trust having movable and immovable properties as mentioned in register of public trust. Though no mode of succession has been provided but succession to trusteeship is confined to the members of founder Deenna Nath Agrawal, \ • Late Ramdwarika Lal Agrawal was appointed as trustee by the District Judge vide his order dated 9-2-1973 due to death of his father late Shri Ram Kishori Lal. 11.From perusal of the order of Annexure-P/1 passed by the Registrar Public Trust, it is evident that the private respondents herein applied for their appointment as trustee of the public trust with averments that chief trustee Ramdwarika Lal Agrawal has died and at present posts of the t"': .<" '•^ 1 ^.'..'.''^^^'sK'^.., •• ra »- trust are vacant asthere isino trustee and no legal heirs and manager of the trust. They organized a meeting of the trust and elected office bearers and members of the Board of Trustee. The Registrartreating the above applicationof the respondents as application under Section 9(2) of the Act after inviting objections from the public at large by publication or proclamation and after conducting enquiry passed the impugned order of Annexure-P/1 and appointed the private respondents as office bearers of the trust temporarily as an alternative arrangement/interim management till decision inMJCNo.36/1972 with an observation that there is no-one to protect the jnterestof the registered public trust. i 12.Public trust is defined in Section2 (4). Sub-section (2) of Section 3 provides that the Registrar of public trust shall maintain a register of public trust and such other books and registers as may be prescribed. Section 4 prescribes the procedure of registration of public trust whereas Section 5 prescribes that Registrar shall make an enquiry for registration in the manner prescribed under this section. 13.Section 7 cast a duty upon the Registrar to make entries in the registerin accordance with the finding recorded by him after enquiry and sub- section (2) of Section 7 envisages that entries made under sub-section (1) of Section 7 are final and conclusive. The finding of the Registrar recordedunder Section 6 may be questioned by a working trustee or a person having interest in |the public trust or any property to be trust property by way of civil suitjin a civil Court. 14.Section 9 of the Act reads as under:- "9-Change.- (1) Where any change occurs in any of the entries recorded in the register, the working trustee shall, # ^. /" •-•^ ». »- within ninety days from the date of the occurrence of such change or where any change is desired in such entries in the ihterest of the administration ofthe such public trust, report |in the prescribed manner such change or proposed change to the Registrar. (2) If, no receipt of such report and after making such enquiry as the Registrar may consider necessary, the Registrar is satisfted that a change has occurred or is necessary in any of the entries recorded in the register in regard to a partieular public trust, he shall record a finding with the reason therefor and subject to the provisions contained in sub-section (3)amend the entries in the said register in accordance with such finding. I (3) The provisionsiofsection 8 shall apply to any finding under this section as they apply to a finding under section 6." i 15.GhapterV of the Actdeals with control of the public trust. Section 22 defines powers exercisable by the Registrar in the matter of public trust whereas Section 23 prescribes the procedure after the receiptof the auditor's report made under Section 17 oftheAct. Section 25 underthis chapter deals with filling lof vacancy and Section 26 empowers the Registrar to move suitable applieation to the Court for direGtion under certain contingencies. Seclions 25 and 26 of theAct are reproduced as under- i "25. Filling of vacancies.- (1) Where a public trust is under the management of a Board of Trustees, the working trustee shall, as soon as a vacancyoccurs in the Board, informthe Registrar ofsuch vacancy and the time within and the manner in which he proposes to fill the same. (2) On receipt of such information the Registrar may, if he considers it necessary, issue any directions to the 'vf^-^-' .."•f 10 working trustee regarding the filling of such vacancy not inconsistent with any instrument of trust or the mode of succession specified in the register and the working trusteeshall comply with any such direction. (3) If the working trustee fails to give any such information or to fill the vacancy within the time specified by him or to comply with any direction issued by the Registrar, the Registrar may, by order passed 'in, writing, fill the vacancy and any person having interest in the public trustwho may be aggrieved by the order of the Registrar, may apply to the court for setting aside the order ofthe Registrarwithin thirty days from the date of such order. 26. Application to Court for directions.- (1) If the Registrar on the application of any person interested in the public trust or otherwise is satisfied that - (a) the original object ofthe publictrust has failed; (b) the trust propenty is not being properly managed or administered;or (c) the direction |of the court is necessary for the administration of the public trust; he may, after giving the working trustee an opportunity to be heard direct such trustee to apply to court for directions within the time specified by the Registrar. (2) If the trustee sp directed fails to make an application as required, or if there is no trustee of the public trust or if for any other 1 reasoh, the Registrar considers it expedient to doso, he shall himself make an application totheCourt." | 16.From bare perusal ofthe scheme of the Act, it is manifestlyclear that there is no provision of appointmentof trustee by the Registrar Public Trust on temporary basis as an interim measure under Section 9 oftheAct. \ 17.Section 9(1) of the Act prcjvides Registrar about the change the register or whether he interest of administration of provides that where a Registrar he eonsiders necessary that of the entries in regard to| finding and amend entries (3) of Section 9 provides shall beopen to challenge party as provided underSection that working trustee shall reportto ttie that occurs in any of the entries recorded in desires such change in the entries in the the public trust. Sub-section (2) of the Act is satisfied after making such enquiry as change has occurred or is necessary inany 1 the public trust, he shall record a reasoned ;n accordance with such finding. Sub-section ithat any finding recorded under this section by way of filing civil suit by the aggrieved 8 of the Act. IS.Thus from provisions of Seetion all powers ofchange under working trustee and nototherwise »- the Act on application of ttie Section 9(2) of theAct. The office bearers and had trustees, as vacancy Ramdwarika Lal Agrawal. there is nolegal heir/manager trustee Ramdwarika Lal Section 26 (2) of the Act death of Ramdwarika Lal 11 9, it is clear that the Registrar can invoke Section 9 only on receipt 6f the report of the 19.1n the instant case, the Registrar initiated proceedings under Section 9 of private respondents purportedly filed under private respondents held a meeting, elected submitted an application for their appointment as arisen after the death of chief trustee |They also mentioned in their application that to manage the trust after the death of chief Agrawal. Indisputably, an application under for direction was filed in the Court after the Agrawal and the same was pending at the time of passing of order of Annexure-P/1 . ^^'^^S^s. ^^ ¥- 12 20.Seetion 25(1) of theAct cast a duty upon working trustee to inform the Registrar regarding any vacancy occurs in the Board of Trustees and time within and the manner in which he proposes to fill the same. Sub- section (2) empowers the iRegistrar that he may issue direction to the working trustee regarding filling ofvacancy. Sub-section (3) ofSection 25 empowers the Registrar that he may himselffill vacancy by passing an appropriate order in the event working trustee fails to giveany such jnformation or to fill vacancy within time specified by him or to comply with any direction issuedlby the Registrar. Sub-section (3) further provides that a person who is aggrieved by the order of the Registrar under sub-section (3) may|apply to the Court for setting aside the order ofthe Registrar within a period of30 days. 21.1n thefacts of thepresent|case,a vacancy arose in the tmst after the death of sole chief trustee Ramdwarika Lal AgrawaI.A proceeding under Section 26 was initiated in the year 1972 for supplying the vacancies. The private respondents approached the Registrar and requested for their appomtment as working trustee and the Registrar allowed their application by the order of Annexure-P/1. 22.1n the matter of Phoolchand Jain (Supra), the Division Bench of the Madhya Pradesh High Court, while considering the scope of fillingof vacancy under Section 25 of the Act, held thus:- "The clear implication of sub-section (3) is that in case the working trustee fails to fill the vacancy within the time specified by himor comply with any direction issued by the Registrar, the Registrar has the power to fill the vacancy and any person aggrieved by such order has the right to apply to the Court, namely, the District Court for settingaside the order of the "' ^P'^"; '"T'"'^.. >!»•••& ">. y%.s»y ^,'!iEassa.si'*' ^ 13 Registrar within thirfy days from the date of such order." 23.1n Shri Ramjanki Mandir Titust and another (Supra), the SDO exercising his power under the Act of 1951 constituted a trust in respectof the petitioner. In appeal preferred by the aggrieved party against such constitution, the Collectorltookaview that the lower Court had not addressed itself at all to th:e question of merit of respondent to hotd the office of Pujari. The matter was remanded to the court below to re- assessmerits ofthe respective candidates and to make fresh appointment of the Pujari of the temple on 15-1-1985. After the Qrder of remand trust was declaredl, as prayed, in respectof the tempte with an observation that no objection pursuant to the gazette notifieation was received and all the 12 persons named as trustees in the application were not recorded as trusteesand only 7 of them were recorded as trustees. However, the R^gistrar in exercise of powers ynder Section 9 of the Act made changes on 3-7-1986 in the register in respect of entries concerning the names of the trustees earlier appointed vide order dated 3 July 1986. The above lorderwas challenged on the ground that the Registrar had no power under the Act to pass the impugned order. As soon as the order was passed, the Registrar became functus officio. Negating the abovearguments,the Division Bench of the Madhya Pradesh High Court held that the Registrar becomes functus officio when a "Public Trust" is validly eonstituted under the Act in accordance with the provisions of theAct. iHis power to act under Section 9or for that matter even under Seetiori 25 to meet exigenciescontemplated under this provision, suffer no derogation on aocount of the jurisdiction vested in the civil Court to act in accordance with the provisions of Sections 26 ^^^^%- .¥»&- 14 ^ -, and 27. While Section 9 is any change in the entries administration of a Publicl Registrar with jurisdiction also act himself for filling insuch manner as is not i Iwide enough to enable the Registrar to make recorded in the register "in the interest of ITrust". Section 25 specifically provides the make direction to the Working Trustees and of interim vacancy in the Board of Trustees inconsistent to the instrument of the trust or the to up modeof succession specified in the Register. 24. However, in the instant case, the facts are entirely different, as vacancy of the chief trustee caused on account of death of solechief trustee from Ramdwarika Lal Agrawal the proceeding under absence of any report assumed jurisdiction under the private respondents Section 25 of the Act. was required to be filled during thependency of Seetion 26 pending in the civil court. In the chief trustee, the Registrar could not have Section 9(2) ofthe Act on the application of the vacahcy could be filled only under and the for 25. From bare reading of the order vacancy was filled in by private respondents that property and for protecting trustees. The only provision jurisdiction is under Sectipn Jurisdiction to fill in vacancy exercise of powers under opinion that learned Additional dismissing the suit registered Act bythe petitioner. of Annexure-P/1, it ismanifestly clearthat Registrar considering the contention of the proper care and management ofthe trust it from its misuse, they be appointed as underwhich the SDO could have exercised 25(3) of the Act and the SDO had no by appointing "Temporary Trustee" in Section9(2) of the Act. Therefore, 1 am of the District Judge was not justified in on application under Section 25 (3) of the -"./^^. Barve 26.1nthe result, thewrit petition is allowed. The order of Additional District Judge dismissing the appljcation aside and the matter is remanded decide the application hearing to the parties. under Section 25(3) of the Act is set back to the Additional District Judge to afresh on merits after affording opportunity of