Madhya Pradesh High Court
Sudip Gupta vs Shri Kheadapti Hanuman Mandir, Trust ... on 20 February, 2013
Writ Petition No : 2559 / 2013
Sudip Gupta & anr Vs. Shri Khedapati Hanuman Mandir Trust & others
20.02.2013.
Shri K.S. Wadhwa for the petitioners.
Challenging an order passed by the learned District
Judge, Bhopal rejecting a prayer made by the petitioner seeking
leave for instituting a suit under the provisions of Section 92 of
the Code of Criminal Procedure, this writ petition has been
filed.
Shri Kheadapti Hanuman Mandir Trust, New Market, TT
Nagar, Bhopal is a Trust registered under the MP Public Trust
Act, 1951 (hereinafter known as the 'Act of 1951'). A Temple,
known as Kheadapti Hanuman Mandir, is functioning under the
control of the said Trust. The bye-laws of the Trust have been
filed as Annexure P/1 and the bye-laws contemplate a provision
for filling up various vacancies that may be created in the Trust.
According to the petitioners, during the functioning of the Trust
as various vacancies arose with regard to certain Trustees, a
meeting of the Trust was held on 12.10.2011, and as a
resolution was passed to appoint three Trustees against the
vacancies so created. Accordingly, respondents 5 to 7 were
appointed as Trustees and based on the resolution dated 12.10.2011, the matter was referred to the Registrar for change of the entries in the record of the Registrar under section 9 of the Act of 1951, and as the change has been permitted and the name of the new Trustees entered in the register, the petitioners approached the court below namely the Court of District Judge, seeking leave for institution of the suit mainly on the ground that induction of the three Trustees is contrary to the statutory 2 Writ Petition No : 2559 / 2013 Sudip Gupta & anr Vs. Shri Khedapati Hanuman Mandir Trust & others provisions, namely the bye-laws of the Act of 1951, and, therefore, petitioners wanted to challenge the resolution and the change made in the register for inducting three new Trustees. This application has been rejected by the learned District Judge and, therefore, petitioners are before this Court.
Shri K.S. Wadhwa, learned counsel for the petitioners, took me through the provisions of sections 8 and 9 of the Act of 1951, and by referring to sub-section (3) of Section 9, argued that if any change in the entries recorded in the register is made by exercising the powers under section 9, then all the provisions of section 8 are made applicable and in the present case the learned District Judge without taking note of the requirement of sub-section (3) of section 9, has rejected the prayer only on the ground that change of name of three Trustees and their induction is not covered under section 8 or section 7 and, therefore, permission cannot be granted.
Having heard learned counsel for the petitioners, I find much force in his objection.
Admittedly, a Trust is registered after conducting the procedure contemplated under Chapter II, from section 3 to section 7 onwards, and once the registration is permitted the Registrar is to make entries in the register with regard to registration of the Trust under section 7. Any entry made under section 7 and the finding recorded by the Registrar is subject to the provisions of filing of civil suit under section 8.
In the present case, after the Trust has been registered due to certain vacancies that arose, a resolution was passed on 3 Writ Petition No : 2559 / 2013 Sudip Gupta & anr Vs. Shri Khedapati Hanuman Mandir Trust & others 12.10.2011 and three more Trustees were inducted. After they were inducted, the change as required under section 9 of the Act of 1951, was sought for and this change was permitted and petitioners sought leave for challenging this change made under section 9. The learned District Judge has rejected it on the ground that a change with regard to induction of three Trustees is not covered under the provisions of section 8 and, therefore, permission cannot be granted.
However, while doing so, the learned District Judge has not taken note of the requirement of sub-section (3) of section
9. A civil suit against the finding of a Registrar recorded in a proceeding held for registration under section 6 and the entry made under section 7, is subject to a suit being filed under section 8 and, therefore, the learned District Judge may be right in contending that if an entry is not made under section 7 and when the induction of only three Trustees is not covered under section 6, the provisions of section 8 is not attracted. A bare reading of section 8 may give such an impression, but if a change is made in the constitution of a Trust and the entries in the Register are changed by exercising the powers conferred under section 9(1) and 9(2), then the change made under this section namely section 9 is further subject to applicability of the provisions of section 8, by virtue of sub-section (3) of section 9.
Sub-section (3) of Section 9 reads as under:
"(3) The provisions of section 8 shall apply to any finding under this section as they apply to a finding under section 6."4
Writ Petition No : 2559 / 2013 Sudip Gupta & anr Vs. Shri Khedapati Hanuman Mandir Trust & others This clearly shows that even if any change is made in the register or working of the Trust by virtue of exercise of powers under section 9, then in the light of sub-section (3) of section 9, the provisions of section 6 are made applicable to any finding under section 9, as they apply to a finding under section 6 of the Act of 1951.
That being so, learned District Judge having rejected the application without taking note of the aforesaid statutory provision i.e... sub-section (3) of section 9, the matter is remanded back to the learned District Judge for reconsideration in accordance to the requirement of law as indicated hereinabove.
Accordingly, the petition is allowed and disposed of with the aforesaid directions.
Certified copy as per rules.
(RAJENDRA MENON) JUDGE Aks/-