1 HIGH COURT OF MADHYA PRADESH : JABALPUR SINGLE BENCH: J.K. MAHESHWARI, J. FIRST APPEAL NO.437 OF 2011 Bharat Kumar Patel vs Shri Ram Janki Hanuman Mandir PRESENT : For appellant : Shri A.K.Jain, Advocate For respondent No.1 : Shri Umesh Tripathi, Advocate For respondent No.2 : Shri S.P.Rai, Panel Lawyer O R D E R (10/10/2011) Challenging the order dated 6.7.2010 passed by II Additional District Judge, Jabalpur in M.J.C. No.57/2004 on a reference made by the Registrar, Public Trust, Jabalpur under Section 26(2) of the M.P. Public Trusts Act, 1951 (in short 'the Act'), the appellant has filed this appeal. 2. The facts in brief are that Shri Ram Janki Hanuman Mandir Purena Kaladumar is a registered Public Trust as per order dated 29.9.1998. The original trustee of the said Trust were Harsh Kumar Pateriya (Managing Trustee), Chandra Prabha Pateriya, Surendra Kumar Choudhary and Rajendra Tiwari. The object of the said Trust is religious, social and educational and to expand all the said fields. The land having area 12.01 hectare situated in village Kaladumar, 2 2.77 hectare in village Purena and 0.21 hectare in village Jaitana is the immovable property of the Trust along with the shop situated in the premises of Hanuman Mandir. Before the Registrar, Public Trust an application was filed by the Mahant Shyamdas to join his name and to delete the name of Harsh Kumar Pateriya, Chandra Prabha Pateriya, Surendra Kumar Choudhary and Rajendra Tiwari on the ground that some of them have died and some have resigned. It is said that the earlier trustees have appointed Mahant Shyam Das to join as Managing Trustee and Jagat Guru Ramanand Acharya Swami Ram Naresh Acharya, Shri Shyam Sunder Tiwari and Narmada Prasad Pandey as trustees on 12.2.2002 and 19.1.2003 respectively. On such application the notice was issued whereupon the appellant filed objection on the ground that the trustees were not looking after the properties of the trust. He has also submitted an application under Section 26 of the Act for direction to manage or administer the properties of the Trust, however requested till decision on his application, the application filed by Mahant Shyam Das should not be decided. In the application filed before the Registrar, Public Trust by Bharat Kumar Patel, it was contended that trustees are the residents of Jabalpur while the temple and the land is situated in the village area where they are not residing, the Gram Panchayat has also passed a resolution to that effect, however they may be removed. It is also stated that the Gram Panchayat has prepared a Committee and intimation to that effect has been given to the Sub-Registrar, however reference may be made to the Court. 3. On filing objection to the said application, the Managing and Founder Trustee Harsh Kumar Pateriya has submitted the objection and stated that the 3 Trust is performing their duties well and managing the affairs. The application filed by Bharat Kumar Patel is only to grab the property of the Trust. It is also stated that earlier he has filed the application which was rejected on 27.1.2011, however subsequent application on the same ground is not maintainable. It is further stated that the appellant is in illegal possession of the land and getting benefit therefrom without giving the accounts of earning since 1999. It is further stated that the Gram Panchayat is having no right to prepare a Committee to manage the affairs of the Trust. As per the deed of the Trust, the appointment of the trustees is by the majority of the opinion, however the application may be dismissed. The applications filed by Mahant Shyam Das and Bharat Kumar Patel have been considered simultaneously by the Registrar Public Trust and while holding enquiry he also made a spot inspection on 12.12.2003 and prepared a Panchanama. It was found that since 1999 the land attached to the temple has been given for cultivation by Bharat Patel as Chairman of the Samiti prepared by the Gram Panchayat and getting money from them. The accounts are not being maintained by him. It was also found that in the year 2003 the account of the Trust was opened in Mahakaushal Kshetriya Gramin Bank wherein an amount of Rs.72,474/- was found as balance which is still in the account and Rs.98,000/- is in fixed deposit. As per the villagers, the said Trust was under the control of Chandra Prabha Pateriya up to 1997. It is also alleged that the Pateriya family is not looking forward to the affairs of the Trust, however the appropriate action may be taken. 4. The Registrar Public Trust vide order dated 12.2.2004 made a reference in exercise of the powers under Section 26(2) of the Act on three issues to the 4 District & Sessions Judge whereupon the order impugned has been passed and it was directed that Mahant Shyam Das, Shri Shyam Sunder Tiwari and Narmada Prasad Pandey along with Panch of Gram Panchayat Kaladumar and Purena and the Sarpanch of village Kaladumar and one nominee of the Registrar Public Trust shall be the trustees and accordingly the Registrar shall constitute a Trust and assign all the work to Manage and administer the property of the Trust. It has further been directed that the Registrar Public Trust shall take over all the movable and immovable properties from both the parties and till constitution of the Trust, the Registrar shall manage the affairs. The immovable property be registered in the name of the Trust in Government record. The immovable property shall be kept in the current or saving accounts and the FDR be renewed in the name of the Trust. After assigning the work the Trustees shall make the audit by every year and irregularity, if any, is found then action be taken in accordance to law. It has further been observed that if any of the parties is not co-operating or dis-obeying the order, the action be taken in accordance to law thereby the property of the Trust should not be misutilized. 5. Shri Jain, learned counsel for the appellant contends that the order passed by the learned Additional District Judge while answering the reference is beyond the scope of reference appointing the trustees and also giving right of nomination to the Registrar Public Trust which is in violation to Section 22 of the Act. It is further contended that the direction as issued of election of the trustees while constituting the Trust is contrary to the spirit of the Trust deed, however such directions are unsustainable in law. Lastly it is contended that the property of the Trust cannot be taken away from the appellant under the orders 5 of the Court without following due process of law. It is said that the appellant is in possession of the immovable property which can only be taken by following the procedure as prescribed under Section 248 of the M.P. Land Revenue Code (in short 'the Code'). In support of the said contention, reliance has been placed on a judgment of the Apex Court in the case of Bishan Das and others Vs. State of Punjab and others, AIR 1961 SC 1570. It is submitted by him that relying upon the said judgment and also the judgment in the case of Meghmala and others Vs. G. Narasimha Reddy and others, (2010) 8 SCC 383, the Chhattisgarh High Court in the case of Tejram Dewangan Vs. State of C.G. and others, 2011 (3) M.P. H.T. 4 (CG) issued the directions that the possession on the property of the Trust cannot be taken without following due process of law, however the direction as issued to the Registrar Public Trust to take over the property from the parties is not in conformity to law. On the analogy that the Court cannot direct the Registrar Public Trust to appoint one nominee on his behalf, reliance has been placed on a judgment of this Court in the case of Shri Deo Janki Raman Mandir Trust, Gora Khurd Vs. State of M.P. and others, 2003(2) MPLJ 448, it is submitted by him that the appointment of the trustee may be made by the Court and not by the Registrar. In view of the foregoing, prayer is made to allow the appeal and to set aside the order impugned. 6. Per contra Shri Umesh Tripathi, learned counsel appearing on behalf of respondent No.1 contends that the order impugned has rightly been passed in reply to reference made by the Registrar Public Trust. By filing various documents, it is submitted by him that the Registrar Public Trust has acted upon 6 the direction as issued by the Trial Court and the Trust has been constituted as per order dated 18.04.2011 and the Naib Tehsildar has been directed to take over the possession of the properties. As per sub-clause (f) of Section 27 of the Act, the direction of the Court to take over the property is in compliance to the order of the Court, however it cannot be said that the action taken by the S.D.M. through the Naib Tehsildar to take over the possession of the property from the appellant is not in accordance to law. In addition to such argument, he has argued in support of the finding as recorded by the Trial Court. 7. After having heard learned counsel for the parties and on perusal of the record, it is apparent that Shri Shri Ram Janki Hanuman Mandir Public Trust Purena Kaladumar was established on an application submitted by Chandra Prabha Pateriya, Harsh Kumar Pateriya, Surendra Kumar Choudhary and Rajendra Tiwari. The temple and the property was belonging to the Pateriaya family and initially it was a private Trust. On their application it was registered as a Public Trust and Harsh Kumar Pateriya became the Managing Trustee and the number of trustees are seven which is required to be filled up with the majority or by common consensus. In the facts of the present case, it is apparent that Mahant Shyam Das who was appointed by Harsh Kumar Pateriya has applied before the Registrar Public Trust to declare him managing trustee along with three others. At the same time, it is further clear that the appellant has applied before the Registrar Public Trust to declare him the trustee and to allow him to manage the affairs of the Trust. On receiving two applications, the Registrar found that the Trust property is not being properly managed or administered, however in exercise of the power under sub-section (2) of Section 26 of the Act 7 reference was made to the District Court to answer three questions. While passing the reference order an enquiry was conducted on the spot by the Registrar Public Trust. In the reference order, it was mentioned that Bharat Kumar Patel made various allegations showing mis-management of the Trust and the trustees are not residents of the local areas. While Mahant Shyam Das stated that Chandra Prabha Pateriya, Harsh Kumar Pateriya, and Rajendra Tiwari have submitted their resignation while Surendra Kumar Choudhary has died. As per the meeting held on 6.1.2002 in place of Surendra Kumar Choudhary, Mahant Shyam Das Premanand Ashram Jilehari Ghat, Jabalpur as appointed as trustee which was approved in the meeting dated 12.5.2002. In the meeting dated 18.8.2002 and 24.11.2002 Acharya Ram Naresh Jagad Guru Ramanandacharya Swami Shri Ram Naresharya, Shri Narmada Prasad Pandey and Shyam Sunder Tiwari were proposed which was approved as per meeting dated 9.1.2003. In the meeting dated 9.3.2002 Harsh Kumar Pateriya submitted his resignation and Mahant Shyam Das has been appointed as a Managing trustee. It was also found that the accounts are not being maintained properly by the Samiti of the chairmanship of Bharat Patel, who is giving the land on lease and earning money therefrom, however the reference was made on three questions which are as under:- ¼1½ U;kl dh dgh tkus okyh Hkwfe 'kkldh; vfHkys[kksa esa loZjkgdkj izca/kad dysDVj ntZ gS bl LFkku ij e0iz0yksd U;kl vf/kfu;e varxZr fdlh VªLVh dk uke ntZ djus dk dksbZ izko?kku ugha gS vr% bl laifRr dk izca/ku fdl izdkj djk;k tk; ? 8 ¼2½ U;kl dks l`tu djus okys lHkh VªLVh;ksa }kjk bfLrQk ,d ,d dj fn;k ,oa mu O;fDr;ksa dks U;kl dk U;klh fu;qDr dj fn;k x;k gS tks fd U;kl ds eafnj ,oa Hkwfe ij dkfct ugha gS vFkok fu;a=.k ugha gS A nksuksa gh i{kksa ds ikl U;kl dh jkf'k gksuk ikbZ tkrh gS ,oa U;kl dk lapkyu U;kl ds ikl u gksdj vU; fufeZr viathÑr laLFkk ds ikl gksuk ik;k x;k gS vr% uohu U;kl eaMy dk uke U;kl iath esa fdl gSfl;r ls ntZ fd;k tkos ? ¼3½ U;kl dh py vpy laifr ,d viathÑr lfefr ds ikl gS vr% U;kl dh py vpy laifr dk mfpr izca/ku fdl izdkj fd;k tkos A 8. The reference court has recorded the statement of Mahant Shyam Das, Saryu Prasad Sachan, Kashi Giri, Maiyadeen Tiwari, Bharat Patel, Rajendra Prasad, Mahendra Kumar Tiwari, Ramcharan Soni and perused the record filed by both the parties and found that there is mis-management of the Trust and the property is not being administered, however the direction is necessary for the administration of the Public Trust. In furtherance thereto it was also found that the Committee of the Chairmanship of Bharat Patel is improper, however Mahant Shyam Das appointed by the original trustee along with three others who are the residents of local area, namely, Shyamsunder Tiwari and Narmada Prasad Pandey, Panch and Sarpanch of Kaladumar and the Panch of Purena and one one person nominated by the Registrar Public Trust shall be the trustees. The constitution of the Trust by the Court is as per the provisions contained 9 under Section 27 of the Act. Section 27 of the Act specifies the powers of the Court whereby it is clear that the Court may pass an order as it may consider appropriate or as it deems fit for appointment of new trustee. It is further clear that the Court while passing such order may remove any trustee, may pass an order in the interest of the trust looking to its object, the scheme for management of the trust property and to utilize the funds of public by issuing appropriate directions. Thus, in the opinion of this Court the direction issued by the Court to appoint seven trustees which has been executed by the Registrar Public Trust vide order dated 18.4.2011 appointing Mahant Shyam Das Premanand Ashram Jilehari Ghat Jabalpur, Shri Shyam Sunder Tiwari Garha, Jabalpur, Narmada Prasad Pandey, Gorakhpur Jabalpur, Sarpanch Kaladumar Smt. Sushila Bai ex-officio, Panch Kaladumar Smt. Meera Gaund ex officio, Panch of Purena Hanuman Mandir area Smt. Pyari Bai ex officio and nominated person Radheyshyam Choubey by the Registrar Public Trust appears to be in accordance to the spirit of the said provision and as per the law laid down by this Court in the case of Shri Deo Janki Raman Mandir Trust, Gora Khurd (supra). The contention as advanced by Shri Jain that the issuance of the direction to nominate one person by the Registrar Public Trust in the trust is contrary to the spirit of Section 22 of the Act and which may amount to appointment of the trustee by the Registrar in the light of the Division Bench decision of this Court in the case of Phoolchand Jain and others Vs. Registrar, Public Trusts, Satna, Madhya Pradeshand others, 1973 MPLJ 659 is of no help to him because Section 22 confers powers to the Registrar to enter on and inspect or cause to be entered on and inspected any property 10 belonging to a Public Trust; to call for or inspect may inspect extract from and proceedings of the trustees of any public trust or any book or account in the possession of or under the control of the trustee; and to call for any return, statement, account or report which he may think fit from the trustee or any person connected with a public trust. Such powers are supervisory for the smooth functioning of the Trust. As per Section 25 the vacancies may be filled up by the Registrar Public Trust not in consistent with the instrument of trust. In the present case, on finding mis-management of the Trust and having no administration of the property of the Trust, a reference was made by the Registrar thereupon in exercise of the power under Section 27 of the Act, the Court directed for appointment of a trustee whereby a nominee of the Public Trust has been appointed as one of the trustee, such direction is akin to the provisions of sub-section 2(b) of Section 27 of the Act. Thus the argument as advanced by Shri Jain is liable to be repelled. 9. Now coming to the issue regarding taking over of the possession by the Registrar Public Trust in lieu of the direction issued in the order impugned without following the procedure as prescribed under Section 248 of the Code is concerned, it is seen that as per the direction issued by the reference court the Trustees have been appointed and in furtherance to the subsequent direction to take over the property in the light of the judgment of the Apex Court in the case of Bishan Das and others (supra), the Apex Court Court held as thus : “that the petitioners could not be held to be trespassers in respect of the dharamsala, temple and shops; nor could it be held that the dharamsala, temple and shops belonged to the State, irrespective of the question whether the 11 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. 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 application of the maxim quicquid plantatur solo, solo cedit. Hence, in respect of the dharamsala, temples and shops the State had not 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. 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 validity of the trust. 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. The executive action taken in this case by the State and its officers was destructive of the basic principle of the rule of law. “ 10. In the judgment of the Apex Court in the case of Meghmala and others (supra) referring various judgment of the Apex Court it is held that even the trespasser cannot be evicted forcibly without following due process of law. In such circumstances the direction issued by the reference court is modified to the extent that the Registrar Public Trust shall initiate the action against the appellant under Section 248 of the Code and take over the possession of the 12 immovable property by affording an opportunity. The direction issued by the reference court shall be applicable in the case of movable property and it be implemented by the Registrar Public Trust in favour of the newly constituted Trust. After following the procedure as per Section 248 of the Code the possession of the immovable property be taken over and delivered to the newly constituted trustees who may act upon to manage the affairs of the Trust and to administer the property attached to the Trust. The action under Section 248 of the Code shall be expedited by the Registrar Public Trust and the appellant shall not make unnecessary delay causing mis-management of the administration of the Trust and its properties during pendency to such proceedings. 11. Accordingly the order passed by the reference court is hereby upheld to the extent indicated herein above to the modification that the possession of the immovable property shall be taken by the Registrar Public Trust in accordance with the provisions contemplated under Section 248 of the M.P. Land Revenue Code expediting the same not later than three months and be delivered to the newly appointed trustees. In the facts and circumstances of the case, there is no order as to costs. (J.K. Maheshwari) Judge DV