Case: JANARDAN DAGDU KHOMANE  Vs. EKNATH BHIKU YADAV

2. The appellants are the trustees of Shree Maruti Deo Trust Pimpli Limtek, registered as a public trust under the Bombay Public Trusts Act, 1950, hereinafter referred to as the ?Public Trusts Act?. By amendment in 2012, the Public Trusts Act was renamed as ?The Maharashtra Public Trusts Act, 1950?. It is the case of the appellants that, since time immemorial, the said land has belonged to the Maruti Dev Temple. The said land is classified in the revenue records as Class III Devasthan Inam land belonging to the deity Maruti Dev. The suit property, according to the appellants, belongs to an institution of public religious worship.There cannot be any dispute that the suit land belonged to the Devasthan. According to the appellants, initially in 1922, one Sitram Narayan Deshpande was put in possession of the suit land in view of the service rendered by him to the temple. Later, the land was let out to the forefathers of respondent nos. 1 to 4.The respondent nos. 1 to 4, claim to be the tenants of the respondent nos. 5 and 6. The respondent nos. 1 to 4 claim to have been in possession of the said land on 1.4.1957 i.e. the ?Tillers Day? under the 1948 Act, now known as the Maharashtra Tenancy and Agricultural Lands Act. The proforma respondents in this appeal, being the trustees of the Trust, were deleted from the array of parties by an order of this Court dated 13.2.2013.The 1948 Act was amended by Bombay Act No. 15 of 1957, Bombay Act No. 38 of 1957 and Bombay Act No. 63 of 1958. The relevant amended sectionsTenants deemed to have purchased land on tillers?On the first day of April 1957 (hereinafter referred to as "the tillers day") every tenant shall, [subject to the other provisions of this section and the provisions of] the next succeeding sections, be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon on the said day, the land held by him as tenant,such tenant is a permanent tenant thereof and cultivates landsuch tenant is not a permanent tenant but cultivates land leased personally;the landlord has not given notice of termination of his tenancy under section 31;notice has been given under section 31, but the landlord has not applied to the Mamlatdar on or before the 31st day of March 1957 under section 29 for obtaining possession of the land;the landlord has not terminated his tenancy on any of the grounds specified in section 14, or has so terminated the tenancy but has not applied to the Mamlatdar on or before the 31st day of March, 1957 under section 29 for obtaining possession of theTribunal to issue notices and determine price of land to be paid byAs soon as may be after the tillers? day the Tribunal shall publish or cause to be published a public notice in the prescribed form in each village within its jurisdiction callingall tenants who under section 32 are deemed to have purchased theall landlords of such lands,all other possession interestedappear it on the date specified in the notice. The tribunal shall issue a notice individually to each such tenant, landlord and also, as far as practicable, other persons calling upon each other to appear before it on the date specified in the publicThe Tribunal shall record in the prescribed manner the statement of the tenant whether he is or is not willing to purchase the land held by him asWhere any tenant fails to appear or makes a statement that he is not willing to purchase the land, the Tribunal shall by an order in writing declare that such tenant is not willing to purchase the land and that the purchase isthat, if such order is passed in default of the appearance of any party, the Tribunal shall communicate such order to the parties and any party on whose default the order was passed may within 60 days from the date on which the order was communicated to him apply for the review of theIf a tenant is willing to purchase, the Tribunal shall, after giving an opportunity to the tenant and the landlord and all other persons interested in such land to be heard and after holding an inquiry, determine the purchase price of such land in accordance with the provisions of section 32H and of sub¬section (3) of sectionthat, where the purchase price in accordance with the provisions of section 32H is mutually agreed upon by the landlord and the tenant, the Tribunal after satisfying itself in such manner as may be prescribed that the tenants consent to the agreement is voluntary may make an order determining the purchase price and providing for its payment in accordance with suchIn the case of a tenant who is deemed to have purchased the land on the postponed date the Tribunal shall, as soon as may be, after such date determine the price of theOn 18.9.1983, the Gram Sabha decided to get the Trust registered as a Public Trust. Accordingly, an application no. 1484/83 was filed before the Deputy Charity Commissioner by one of the trustees, for registration of Shri Maruti Dev Trust, Pimpli, Limtek, under Section 19 of the Public Trusts Act. On 8.8.1984, the Trust came to be registered under PTR No. A/1656 (Pune) after necessary enquiry.Questioning the registration of the Trust, the respondent no.1, father of the respondent nos. 2 to 4, filed a Revisional Application No. 21 of 1985 before the Joint Charity Commissioner, Pune, who remanded the matter back to the Deputy Charity Commissioner, on the ground that no personal notice had been given to the concerned respondents.On or about 9.7.1986, after registration of the Trust, the Trustee in Charge of the Trust, filed an application under Rule 52(1) of the Bombay Tenancy and Agriculture Land Rules, 1956 before the Collector for exemption of the said land under Section 88B of the 1948 Act. It appears that the Pune Archives recorded the land in question as Class III Devasthan Inam Land of the Village Pimpli, belonging to the Maruti Dev Trust, managed by Shri Narayan Deshpande, as per decision no. 196 dated 3.7.1858.The Additional Collector, after holding enquiry under Section 88B (2) of the 1948 Act, issued a certificate dated 21.1.1987, certifying that the Trust is ?an institution of public religious worship registered under the Bombay Public Trust Act? . The certificate further certified that the Trust was eligible for exemption under Section 88B of the 1948 Act in respect of the land in question. The appellants assert that the certificate was issued after notice of inquiry to the respondents who were given the opportunity of cross¬examining the Trustees.On or about 13.3.1987, the respondent no.1 and father of respondent nos. 2 to 4, filed the above¬ mentioned writ petition being WP No. 1442 of 1987 in the Bombay High Court, challenging the validity of the exemption certificate.The Deputy Charity Commissioner, after considering the allegations and counter allegations of the respective parties in the Inquiry Application No. 1484 of 1983 and 2008 of 1997, passed an order dated 15.9.2001 holding that Maruti Dev Trust was already in existence and it was a Public Trust under the Public Trusts Act. Accordingly, Application no. 2008 of 1997, filed by the respondent was rejected. The Application No. 1484/1983 stood allowed.Aggrieved by the order dated 15.9.2001, the respondent no. 1, father of respondent nos. 2 to 4, filed an Appeal No. 101/2001 before the Joint Charity Commissioner, Pune. The appeal was dismissed by the Joint Charity Commissioner by an order dated 5.7.2005, holding that the claim of the respondent to be the owner of the Trust property was adverse to the interest of the Trust. The existing Trustees were directed to take necessary steps for getting a scheme framed by the Competent Authority for proper administration of the Trust.By the Judgment and order dated 6.2.2006 under appeal, the Division Bench of the Bombay High Court allowed writ Petition, being W.P. No. 1442 of 1987 filed by the respondent no.1, father of the respondent Nos. 2 to 4, challenging the validity of the Exemption Certificate dated 21.1.1987 issued by the Collector, and quashed the impugned Exemption Certificate. The High Court held that it was not open to the Collector to grant a certificate of Exemption to the Trust as the land had vested in the writ petitioners on 1.04.1957. The High Court directed the authorities concerned to hold proceedings under Section 32 G of the 1948 Act to fix the purchase price at an early date.n 18.9.1983, the Gram Sabha decided to get the Trust registered as a Public Trust. Accordingly, an application no. 1484/83 was filed before the Deputy Charity Commissioner by one of the trustees, for registration of Shri Maruti Dev Trust, Pimpli, Limtek, under Section 19 of the Public Trusts Act. On 8.8.1984, the Trust came to be registered under PTR No. A/1656 (Pune) after necessary enquiry.g the registration of the Trust, the respondent no.1, father of the respondent nos. 2 to 4, filed a Revisional Application No. 21 of 1985 before the Joint Charity Commissioner, Pune, who remanded the matter back to the Deputy Charity Commissioner, on the ground that no personal notice had been given to the concerned respondents.n or about 9.7.1986, after registration of the Trust, the Trustee in Charge of the Trust, filed an application under Rule 52(1) of the Bombay Tenancy and Agriculture Land Rules, 1956 before the Collector for exemption of the said land under Section 88B of the 1948 Act. It appears that the Pune Archives recorded the land in question as Class III Devasthan Inam Land of the Village Pimpli, belonging to the Maruti Dev Trust, managed by Shri Narayan Deshpande, as per decision no. 196 dated 3.7.1858.e Additional Collector, after holding enquiry under Section 88B (2) of the 1948 Act, issued a certificate dated 21.1.1987, certifying that the Trust is ?an institution of public religious worship registered under the Bombay Public Trust Act? . The certificate further certified that the Trust was eligible for exemption under Section 88B of the 1948 Act in respect of the land in question. The appellants assert that the certificate was issued after notice of inquiry to the respondents who were given the opportunity of cross¬examining the Trustees.n or about 13.3.1987, the respondent no.1 and father of respondent nos. 2 to 4, filed the above¬ mentioned writ petition being WP No. 1442 of 1987 in the Bombay High Court, challenging the validity of the exemption certificate.Sometime in 1997, the respondent no.2 filed an Inquiry Application No. 2008 of 1997 for registration of a Trust consisting of new Trustees in the name of Shri Maruti Dev

Reasoning: 32. Counsel appearing on behalf of the appellant has very rightly argued, that in view of the definition of ‘Public Trust? in the Public Trusts Act, which also includes constructive trust either for a public religious or charitable purpose, the absence of a deed of trust would not make any difference to the position of the Trust as a ?public trust?.A constructive trust arises by operation of law, without regard to the intention of the parties to create a trust. It does not require a deed signifying the institution of trust. Under a constructive trust, the trust arises by operation of law as from the date of the circumstances which give rise to it. The function of the court is only to declare that such a trust has arisen in the past.Constructive trust can arise over a wide range of situations. To quote Cardozo, J.,? a constructive trust is a formula through which the conscience of equity finds expression.Section 90 of the Trusts Act states that if there is a person in a fiduciary relation to another, he cannot take advantage of that position so as to gain something exclusively for himself, which he otherwise would not have obtained, but for the position which he held.Section 94 of the Indian Trusts Act, 1882 has allowed the creation of a constructive trust when situations went beyond the confines of the Act. Section 94 has later been repealed by the Benami Transactions Prohibitions Act, 1988.In our view, the repeal of Section 94 of the Act does not put any fetter in declaring a trust, even if the situation falls outside the purview of the Act. Its jurisdiction can be derived from Section 151 of CPC and Section 88 of the Indian Trusts Act.There can be no doubt that the Trust was all along a public trust within the meaning of Section 2(13) of the Bombay Public Trusts Act. The Trust has rightly been registered under the Public Trusts Act, after due enquiry. However, all public trusts are not entitled, as of right, to the exemption under Section 88B of the 1948 Act. The said section only applies to lands which are property of a trust inter alia for educational purpose or for public religious purpose provided such trust is deemed to be registered or is registered under the Public Truststhose Trusts which were registered under the enactments specified in Schedule A and Schedule AA are to be deemed to have been registered under the Public Trusts Act. There is no other provision in the Public Trusts Act with regard to deemed registration.The legislature has, in its wisdom, very consciously provided that all public trusts registered under the provisions of the enactments specified in Schedule ‘A? & ‘AA? to the Public Trusts Act shall be deemed to have been registered under the Public Trusts Act. If it were the intention of the legislature that all public trusts should be deemed to have been registered under the State Public Trusts Act, the legislature would have made an express provision to that effect. It is not for the Court to read into statute words and/or expressions which are not there in the statute.The judgment of this Court in Mahant Ramswarup Guru Chhote Balakdas vs. Motiram Khandu Patil and Others AIR 1968 SC 422  , cited on behalf of the respondents is clearly distinguishable since this Court considered the expression ?deemed to be registered? in Section 28 of the State Public Trusts Act in the context of a trust situate in Burhanpur, Madhya Pradesh, outside the State of Maharashtra.This Court, in effect and substance, said that the re¬organization of States in 1956 and 1960, consequential to which new areas which originally formed part of the Madhya Pradesh State became part of the Maharashtra State, necessitated amendments in the Bombay Trusts Act to incorporate Schedule AA, which, read with Section 28, inter alia, provided that trusts registered under the Madhya PradeshTrusts Act, 1951 would be deemed to have been registered under the Public Trusts Act. This was to save trusts already registered under the Madhya Pradesh Trusts Act, 1951, in areas which later became part of Maharashtra, from the trouble of having to once again get itself registered under the Bombay Act.This Court found that where the trust was administered outside the State of Maharashtra, with bulk of its properties except a few plots of land situate outside Maharashtra, such trusts would not be governed by the Public Trusts Act of the State of Maharashtra and would not, therefore, fall within the ambit of Section 28 of the said Act. Thus, such trusts, though registered under the Madhya Pradesh Public Trusts Act, 1951, would not be deemed to have been registered under the Bombay Act.As observed above, the Trust, being a public trust, has rightly been registered on 8.8.1984, after due enquiry. The registration of the Trust under the Public Trusts Act cannot be questioned. However, the registration is prospective, w.e.f. 8.8.1984. The respondents became deemed purchasers on Tillers? Day, that is, 1.4.1957. The right under Section 32 of the 1948 Act accrued to the respondents on that day. The respondents cannot be divested of such right upon subsequent registration of the Trust. It may be true that a Trust for a religious purpose has the right to own and acquire property. However, such property may be taken away by authority of law. The validity of Section 32 of the Public Trusts Act is not in question.The High Court has allowed the writ petition, on the ground that the Trust was registered for the first time on 8.8.1984. The High Court held that as the Trust was not registered on 1.04.1957, i.e., Tillers? Day the tenants who were in possession of the said land on that day became deemed purchasers, and once the tenant became a deemed purchaser, the ownership of the land vested in him. The holders could not be divested of their ownership by subsequent registration of the Trust.