W.P. No. 1704/2011 -1- HIGH COURT OF MADHYA PRADESH JABALPUR SINGLE BENCH: Hon’ble Shri Justice A.K. Shrivastava W.P. No. 1704/2011 ....PETITIONER: Shri Ram Mandir Trust, Registration No.43/1953-54 Ward No.20, Balaghat, Through its Secretary, Pramod Tiwari, s/o Shri Durga Prasad Tiwari, Aged- about 60 years, R/o Ward No.20, Balaghat (M.P.) -Versus- ....RESPONDENTS : 1. State of Madhya Pradesh Through the Secretary, Revenue Department, Government of M.P., Vallabh Bhawan, Mantralaya, Bhopal (M.P.) 2. Registrar, Public Trust (Joint Collector), Balaghat (M.P.) 3. Shri Hanuman Mandir Trust, Registration No.01/2009-10, Balaghat, Through its President, Ajay Mishra, s/o Shri Narendra Mishra, Aged about 48 years, R/o Near Sujan Dharmshala, Shivaji Path, Balaghat (M.P.) ------------------------------------------------------------------------------------- Shri Umesh Trivedi, learned counsel for the petitioner. Shri Kapil Patwardhan, learned counsel for the respondents 1 and 2. Shri A.P. Shroti, learned counsel for the respondent No.3. ------------------------------------------------------------------------------------- Date of Hearing : 08.03.2011 Date of Order : 17.03.2011 O R D E R { 17.03.2011 } By this petition under Article 226 of the Constitution of India the petitioner has sought following reliefs: W.P. No. 1704/2011 -2- (I) To quash the orders in Annexures P-9, P-7 and P-5. (II) To restrain the respondents from taking the possession of the disputed properties from the petitioner and from giving it to the respondent No.3. (III) Issue any other writ/writs, order/orders and direction/ directions as this Hon'ble Court may deems fit and proper in the facts and circumstances of this case. (IV) Award the cost of this petition.” 2. The petitioner Shri Ram Mandir Trust (hereinafter referred to as “the Trust”) is a registered Public Trust registered under the M.P. Public Trusts Act, 1951 (hereinafter referred to as “the Act of 1951”) . Before registering the Trust an application was submitted by the petitioner on 31.8.1953 for its registration (Annexure P-1) and the properties which are mentioned in the application include one “Hanuman Mandir”. The said Trust was registered under the Act of 1951 vide order dated 10.1.1955. Much prior to its registration the properties were subject matter of the Civil Suit No.42/1930 which was decided by a compromise judgment and decree dated 15.10.1931 and since then those properties are in possession of petitioner-Trust. In the year 1990, five shops have been constructed near the “Hanuman Mandir”. The Municipality and Nazul Office has given the permission to the petitioner for construction of the shops. 3. According to the petitioner, some persons having adverse interest and having prejudice with the Trust activities filed an application under Section 27 of the Act of 1951 before the W.P. No. 1704/2011 -3- Registrar who issued notice to the petitioner to file reply and accordingly the petitioner filed the same. The Registrar after hearing the matter has referred the case vide its order dated 13.7.2010 (Annexure P-5) by exercising the powers conferred to it under Section 26 of the said Act to District Judge, Balaghat. The Registrar in its order also found that petitioner- Trust has no title, documents of the “Hanuman Mandir” and the permission granted to construct the shops to petitioner by Municipality and Nazul Office would not confer any title in it. 4. The Registrar further held that the construction has been raised on the Government land. Further it has been held by the Registrar that the petitioner is not having any Patta of any competent authority and thus according to the Registrar the “Hanuman Mandir” and the properties attached to it are on Nazul land and the petitioner-Trust has no title on these properties. Thus, according to the Registrar, a new Trust can be constituted for the “Hanuman Mandir” and its properties and further held that for interim measure present Committee will continue to work and after receipt of any direction from the District Court, new Committee in terms of the order of District Judge will function. On receiving the reference the District Judge registered it as Reference Case No.25/2010 in which an application under Section 27 of the Act read with Section 151 CPC has also been filed on 22.6.2010 (Annexure P-6). W.P. No. 1704/2011 -4- 5. According to the petitioner, despite the pendency of the reference case before the District Court at Balaghat an application has been filed for registration of new Trust by respondent No.3 “Shri Hanuman Mandir Trust” through Shri Ajay Mishra before the Registrar, Public Trust in which petitioner submitted a reply and stated that “Hanuman Mandir” and the disputed properties are part of the property of petitioner-Trust and therefore, no new Trust can be created. The Registrar has not only created a new Trust namely “Shri Hanuman Mandir Trust” vide another impugned order dated 18.1.2011 (Annexure P-7), but, has also issued a certificate of registration (Annexure P-8). Further the Registrar has held that the disputed properties i.e. Sheet No.17-A (New Sheet No.306), Plot No.36 (New Plot No.292) area 1612 square meter (9592 square feet) is the Government land. According to the petitioner, this order is ex-facie illegal and without jurisdiction. 6. It is the further case of the petitioner that after passing the aforesaid illegal orders, totally in derogation to the powers conferred to the Registrar under the Act of 1951, the Registrar vide third impugned order dated 19.1.2011 (Annexure P-9) has directed the petitioner-Trust to hand over the possession of the properties of “Hanuman Mandir” to the newly constituted “Shri Hanuman Mandir Trust”-respondent No.3 by 25.1.2011. Although later on, the Registrar on 22.1.2011 passed an order to maintain status quo (Annexure P-10) till 25.1.2011. W.P. No. 1704/2011 -5- 7. In para 5.5 of the memorandum of petition it has been pleaded that some of the persons who are trying to raise construction near “Hanuman Mandir” and are trying to take possession of the properties of “Hanuman Mandir”, have filed a representative suit on 24.5.2010 (copy of plaint Annexure P-11) for declaration that disputed properties i.e. “Hanuman Mandir” and the properties are Government properties and petitioner Trust and others have no title on it. They have also prayed a decree of permanent injunction restraining the petitioner-Trust and others from interfering with the properties of “Shri Hanuman Mandir Trust” and from worshiping etc. and have also prayed for relief of possession of “Hanuman Mandir” and have further prayed that possession of “Hanuman Mandir” and disputed properties be immediately taken from the petitioner and others and the same be given to Registrar Public Trust and some other reliefs have also been claimed. This representative suit has been filed in the Court of Fourth Civil Judge, Class-II, Balaghat. According to the petitioner, the same dispute is being prosecuted before the Registrar, before the District Judge in Reference Case and also before Fourth Civil Judge, Class-II Balaghat in Representative Suit No.46-A/2010. 8. Hence, this petition has been filed praying to quash the impugned orders dated 13.7.2010 (Annexure P-5), 18.1.2011 W.P. No. 1704/2011 -6- (Annexure P-7) and order dated 19.1.2011 (Annexure P-9) passed by the Registrar. 9. The return has been filed on behalf of “Shri Hanuman Mandir Trust” (respondent No.3). A preliminary objection has been raised that the petitioner is having an alternative remedy under Section 27 of the Act of 1951 against the impugned orders which indeed has been pleaded by the petitioners in the reply to the application filed under Section 27(2) of the Act of 1951 (Annexure R/3-1) and also by moving an application under Section 151 CPC (Annexure R/3-2) praying for the stay of the order dated 18.1.2011 (Annexure P-7) and seeking maintenance of the status quo and hence this petition be dismissed on the ground of availability of alternative remedy. It has also been pleaded in the preliminary objection that petitioner can challenge the order of the Registrar dated 18.1.2011 (Annexure P-7) in Civil Suit under Section 8 of the Act of 1951. 10. According to the respondent No.3, its President submitted a complaint to the Registrar against the functioning of the petitioner-Trust and claimed for various reliefs (copy of application under Section 26 is Annexure R/3-3) and rightly it was held by the Registrar vide its order dated 13.7.2010 (Annexure P-5) that petitioner did not have title over the “Hanuman Mandir” and further found that a separate Trust may be constituted for the said Temple. Accordingly, respondent W.P. No. 1704/2011 -7- No.3 Trust has been registered vide order dated 18.1.2011 (Annexure P-7) and if the petitioner is aggrieved by the said order dated 18.1.2011 (Annexure P-7) and any of the findings rendered in it, the same can be challenged only by filing a civil suit under Section 8 of the Act of 1951. 11. Further it has been pleaded in the return that property of “Hanuman Mandir” is not the part of the property of the petitioner-Trust. The factum of the property of “Hanuman Mandir” being part of the petitioner-Trust is also denied. 12. On the basis of these pleadings it has been prayed in the return that petition be dismissed. 13. By giving reply to the preliminary objection raised by learned counsel for the respondent No.3 it has been put forth by Shri Umesh Trivedi, learned counsel for the petitioner that having an alternative remedy is not an absolute bar for filing a writ petition under Article 226 of the Constitution of India and in this regard learned counsel has placed heavy reliance on the two decisions of the Supreme Court Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, (1998) 8 SCC 1 and Committee of Management and another v. Vice Chancellor and others, AIR 2009 SC 1159 wherein the decision of Whirlpool Corporation (supra) has been placed reliance, and has submitted that if the authority has acted in flagrant violation of the principles of natural justice and the order is without jurisdiction, certainly this Court can pass W.P. No. 1704/2011 -8- necessary order by exercising powers under Article 226 of the Constitution of India. By placing reliance on another Division Bench decision of this Court in Rewaram Hiralal Sarbarkar and others v. Registrar, Public Trusts, Narsimhapur and others, 1961 M.P.L.J. 1081 which is in respect of the Act of 1951 it has been put forth by Shri Trivedi that if there is any manifest error, writ can be issued even if other remedy is open. 14. The contention of learned counsel for the petitioner is that before constituting a Trust there should be a settler and creator of the Trust and the property should be given to the Trust and obligation should be attached to the property which is given for making a Trust. Learned counsel by inviting my attention to Section 26 of the Act in its entirety has vehemently submitted that by exercising these powers a Registrar cannot create a new Trust. My attention has also been drawn to the definition of “Public Trust” envisaged under Section 2(4) as well as Section 2(10) wherein the legislature has clarified that the words and expressions used in the Act of 1951, but not defined in the said Act, shall have the same meaning as defined in the Indian Trusts Act, 1882 (hereinafter referred to as “the Act of 1882”). 15. Learned counsel has also invited my attention to Section 3 of the Act of 1882 wherein various clauses “Trust”, “author of the Trust”, “beneficiary”, “beneficiary of Trust” and “Instrument of the Trust” have been defined. By inviting my attention to the Division Bench decision of this Court in State of Madhya W.P. No. 1704/2011 -9- Pradesh v. Mother Superior Convent School, Sagar and another, 1958 M.P.L.J. 611, learned counsel has submitted that existence of Public Trust is sine qua non of action in respect of temples, maths, mosques, churches etc. and is having same meaning as defined in the Act of 1882. Learned counsel has also invited my attention to the decision of the Supreme Court in Allahabad Bank Ltd. v. Commr. of Income-tax, West Bengal, AIR 1953 SC 476. 16. By putting deep dent on one of the impugned order dated 19.1.2011 (Annexure P-9) it has been put forth by learned counsel for the petitioner that de hors to the powers conferred to the Registrar under the Act of 1951 he has directed to deliver the possession of the property and the property of “Hanuman Mandir” to respondent No.3. In this context, learned counsel has placed heavy reliance on Division Bench decision of this Court in Mahant Narayandas v. Registrar of Public Trusts, 1962 M.P.L.J. (N) 97. 17. It has also been put forth by him that without holding any inquiry said order has been passed which is also a manifest error and reliance has been placed on the Division Bench decision of this Court in Rewaram Hiralal Sarbarkar (supra) and in this regard learned counsel has also placed heavy reliance on other Division Bench decisions of this Court Khemchand v. Registrar of Public Trusts, 1963 M.P.L.J. W.P. No. 1704/2011 -10- NOTE 196 and Sunderbai v. D.C. Hoshangabad, 1961 M.P.L.J. NOTE 103. 18. By inviting my attention to the Division Bench decision of this Court in Madan Lal Soni and two others v. State of M.P. and four others, 2003 (1) M.P.J.R. SN 34 learned counsel submits that by considering the provisions of the Act of 1951 the Division Bench has held that the order was found to be illegal by the Civil Court and the appeal was also pending against the order, even then it was held that the writ Court can also quash that order in spite of the pendency of the appeal. 19. By inviting my attention to the finding of the Registrar in the impugned order dated 13.7.2010 (Annexure P-5) it has been put forth that the Trust of respondent No.3 which has been directed to be created by the Registrar, the property of the said Trust is situated on the Government land and if that is the position the immovable properties erected on the Government land, a Trust cannot be created for those properties and the said Trust cannot be registered as Public Trust under the Act of 1951. In support of his contention learned counsel has placed reliance on the decision of this Court in Kaushal Kishore (Mahant) v. State of M.P., 1998 (II) MPWN 80 and Vrindavandas (Mahant) v. State of M.P., 1998 (II) MPWN 81. 20. On the other hand, Shri A.P. Shroti, learned counsel for the respondent No.3 submits that against the impugned order dated 13.7.2010 (Annexure P-5) which is an order passed on W.P. No. 1704/2011 -11- the application filed under Section 26 of the Act of 1951 the petitioner is having an efficacious and alternative remedy under Section 8 of the said Act to challenge the finding in the Civil Court and therefore, this petition be dismissed. 21. Learned counsel for respondent No.3 further submits that on the basis of the impugned order dated 13.7.2010 (Annexure P-5) a new Trust can be created by exercising powers under Sections 6 and 7 of the Act and rightly a new Trust has been constituted by the Registrar and whatever the objections petitioner is raising in this petition can be raised in the Civil Court by challenging the finding and in this context learned counsel has placed heavy reliance on the decision of the Supreme Court in Seth Chand Ratan v. Pandit Durga Prasad (D) by LRs and others, (2003) 5 SCC 399. Learned counsel further submits that so far as relief claimed for granting possession of the immovable properties for newly constituted “Shri Hanuman Mandir Trust” is concerned, the impugned order dated 19.1.2011 (Annexure P-9) is in consequence to the earlier orders dated 13.7.2010 (Annexure P-5) and order dated 18.1.2011 (Annexure P-7) and therefore, if the said order has been passed by the Registrar to deliver possession of the property to the respondent No.3 which belongs to newly constituted Trust, no illegality has been committed by it. 22. On these premised submissions it has been submitted by learned counsel that this petition be dismissed. W.P. No. 1704/2011 -12- 23. Having heard learned counsel for the parties I am of the view that this petition deserves to be allowed in part. 24. Indeed, the impugned order dated 13.7.2010 (Annexure P-5) has been passed on the basis of application filed under Section 26 of the Act. This application has been filed by the respondent No.3 which is Annexure R/3-3. On going through the averments made in this application it is gathered that the election of the petitioner Trust was held five years ago and that period has expired on 20.6.2010. In the application it is gathered that allegation in respect of mismanagement of the Trust affairs by the Trustees as well as financial irregularities have been averred. The accounts are also not being kept regularly by the petitioner Trust and they are not being submitted to the Registrar for its perusal regularly which is incumbent upon the petitioner Trust to do so. 25. The Rules, namely, M.P. Public Trusts Rules, 1962 (hereinafter referred to as “the Rules”) have been framed and according to Rule 11, the Manager or Work Trustee of every Public Trust is obliged to get the account audited annually within six months of the date of balancing the accounts under Section 16(1). Other averments are also made in the application in respect of mismanagement of the Trust and the Trust has deviated from the original object of the Trust for which it was created. On bare perusal of the impugned order dated 13.7.2010 (Annexure P-5) (Internal page 3 of the order) this W.P. No. 1704/2011 -13- Court finds that reply was filed by the petitioner Trust through its Secretary Pramod Tiwari but reply pertains mainly in respect of procedure adopted in holding the election. In this petition the petitioner has not filed copy of the reply which the petitioner Trust submitted against the application filed under Section 26 of the Act of 1951. On bare perusal of the impugned order dated 13.7.2010 (Annexure P-5) this Court finds that in pursuance to the said application, the Registrar, Public Trust directed petitioner Trust to submit the documents which are stated at Item No.1 to 7 of its order (internal page-2). Thereafter, it has been mentioned in the said impugned order that Secretary of the Trust submitted the photocopies of the documents which were sought by the Registrar. On bare perusal of the impugned order this Court finds that Registrar accorded its satisfaction that the accounts are not being maintained properly by the Trust and the account has not yet been audited in terms of Rule 11. Certain irregularities in maintaining the account of the Trust were also found by the Registrar. Hence, according to me on recording its satisfaction, the Registrar by exercising its power under Section 26 of the Act of 1951 can refer the matter to the Civil Court. Hence, the remedy which is available to the petitioner against the said order of the Registrar is to submit objections under Section 27 of the Act of 1951. 26. On bare perusal of the impugned order dated 13.7.2010 (Annexure P-5) I am of the view that Registrar on the basis of W.P. No. 1704/2011 -14- material available to it recorded its satisfaction and therefore, this order dated 13.7.2010 (Annexure P-5) cannot be said to be either in violation of the principles of natural justice or being without jurisdiction, therefore, I am declined to quash the said order. The petitioner has already submitted objections in respect of Section 27 in the Civil Court which are pending for its adjudication. 27. However, the application which has been moved by respondent No.3 under Section 4 (Annexure R/3-4) to constitute a new Trust under Section 4 of the Act of 1951 on the basis of which one of the impugned order dated 18.1.2011 (Annexure P-7) has been passed, a reply was submitted by the Secretary of the present Trust Shri Pramod Tiwari denying the averments made in the application to constitute a new Trust “Hanuman Mandir”. In this regard reply which was submitted on 2.8.2010 (Annexure R/3-5) may be seen wherein specifically it has been averred by the petitioner that “Hanuman Mandir” is being managed by the petitioner Trust for last 60 years and is being managed properly and therefore, it is not necessary to create a new Trust. 28. According to me, if an application is submitted under Section 4 of the Act of 1951, an inquiry is contemplated under Section 5 of the Act. Indeed this has been so held by the Division Bench of this Court in Khemchand (supra), Sunderbai (supra) and Rewaram Hiralal Sarbarkar (supra). W.P. No. 1704/2011 -15- On bare perusal of the impugned order dated 18.1.2011 (Annexure P-7) this Court finds that although a new Trust has been directed to be registered by the Registrar, Public Trust without holding any inquiry and therefore, the order which has been passed without holding inquiry and without recording any evidence is contrary to the above said Division Bench decisions of this Court and therefore, this impugned order dated 18.1.2011 (Annexure P-7) is hereby set aside. 29. On going through the preamble; various provisions of the Act of 1951; its scheme, aims and objects, I have no hesitation to hold that the Registrar, Public Trust cannot direct to deliver possession to another person. There is no provision in the Act of 1951 empowering the Registrar who has directed to register any Trust to deliver possession of the property to that Trust and in this regard I may profitably place reliance on the Division Bench decision of this Court Mahant Narayandas (supra) and therefore, impugned order dated 19.1.2011 (Annexure P-9) of the Registrar is without jurisdiction. In Whirlpool Corporation (supra) and Committee of Management (supra) the Supreme Court has held that if the order is without jurisdiction and if it has been passed in violation of principles of natural justice the alternative remedy would not come in the way to decide the writ petition. 30. The decision of Seth Chand Ratan (supra) placed reliance by learned counsel for respondent No.3 would be W.P. No. 1704/2011 -16- relevant only if there would have been any inquiry on the application filed under Section 4 of the Act of 1951 by respondent No.3 for creating a new Trust. On conjoint reading of Sections 5 and 6 of the Act of 1951 this Court finds that on receiving application under Section 4 or upon an application made by any person having interest in a Public Trust or on his own motion the Registrar may make an inquiry in the prescribed manner for the purpose of ascertaining- (i)whether the trust is a public trust; (ii)whether any property is the property of such trust; (iii)whether the whole or any substantial portion of the subject-matter of the trust is situated within his jurisdiction; (iv)the names and addresses of the trustee and the manager of such trust; (v)the mode of succession to the office of the trustee of such trust; (vi)the origin, nature and object of such trust; (vii)the amount of gross average annual income and the expenditure of such trusts; and (viii)the correctness or otherwise of any other particulars furnished under sub-section (3) of Section 4.” Although the notice was given to the petitioner Trust to give reply but no inquiry has been conducted by the Registrar. According to me, the word inquiry used in Section 5 is having its own significance which would include recording of the evidence and because no inquiry has been done by the Registrar by recording the evidence, according to me, the Registrar has deviated from discharging his duties and obligations assigned to W.P. No. 1704/2011 -17- it under this Section which is also mandatory. On bare perusal of Section 6 of the Act of 1951 again it is gathered that this provision has directed Registrar to hold an inquiry because specifically this Section speaks that on completion of inquiry provided under Section 5, the Registrar shall record his findings with reasons therefor as to the matters mentioned in the said Section. According to me, the finding would depend upon the nature of the inquiry and I have