Rajasthan High Court - Jaipur
Mehta Charitable Trust, Pali vs The Commissioner, Devasthan Vibhag, ... on 18 April, 1994
Equivalent citations: AIR1994RAJ207, 1994(2)WLN39
Author: P.K. Palli
Bench: P.K. Palli
JUDGMENT P.K. Palli, J.
1. The appellant has laid challenge to the order passed by the learned single Judge dated 21-9-1984, whereby the writ petition was dismissed.
2. In sequence of the application for registration of a public trust, the Assistant Commissioner invited objections and 15th September, 1975 was fixed as the date of hearing for that purpose. Surprisingly by the order dated 12-9-1975 i.e. three days before the case had been fixed for hearing of the objections, the Assistant Commissioner passed the order ordering registration of the trust. An appeal is said to have been filed by the legal representatives of one Noor Mohd, which was dismissed on 27-9-1976.
3. Respondent No. 4 Mst. Mariyam moved the Assistant Commissioner on 9-10-1975 laying challenge to the order of registration, which application remained pending and in the meantime the legal representatives of Noor Mohd. since deceased and Mst. Mariyam filed a suit in the Civil Court claiming right, titie and interest in the property.
4. Since, the application moved by Mst. Mariyam for rehearing the matter had not been disposed of a prayer was made to decide that application and the Assistant Commissioner vide order dated 22-2-1983 recalled the order passed by him jarlier thereby giving an opportunity to her to contest the application for registration of the trust. This order is Annexure 4 on the record. A challenge was laid to this order before the Commissioner, Devasthan Department and vide the order dated 18-4-1983 Ex, 5 on the record the same was dismissed. These two orders were challenged by the appellant by way of writ petition under Article 226 of the Constitution of India which came to be decided by the learned single Judge of this Court vide the impugned order.
5. We have heard the learned counsel for the parties.
6. It is undisputed that the order of registration of the trust was passed by the Assistant Commissioner on 12-9-1975, whereas actually the matter was fixed for 15-9-1975 for hearing of the objections". This on the face of it was illegal and the order was rightly recalled by him later and the respondent No. 4 was rightly granted an opportunity to contest on the principles of natural justice and equity. This order was later confirmed by the Commissioner.
7. The learned single Judge examined the matter and the impugned orders and after appreciation and perusal of the impugned orders the writ petition was dismissed. The impugned orders have not decided the right, title or interest of either of the parties and the matter was left open after affording proper opportunity to respondent No. 4 to contest the registration. Since the respondent No. 4 in the meantime had filed a suit under Section 22 of the Act for cancellation of the entry recording registry of the trust, which was hardly a ground to uphold the order of registration passed by the Assistant Commissioner which on the face of it on the admitted position was illegal, unjust and against the principles of natural justice and equity.
8. The learned counsel for the appellant has argued that Mst. Mariyam cannot be heard to contest the application since she has no locus standi. It is urged by him that she had claimed her interest adverse to the trust and thus, cannot be permitted to lay such a claim in the proceedings which are for the limited purpose of registration.
9. Our attention was invited to Mehta Charitable Trust, Pali v. Gulam Rasool, (1986 (2) WLN 433). This civil revision had arisen out of the suit filed by Mst. Mariyam for cancellation of the entry recording registration. The suit was held maintainable by the learned District Judge, against which the revision petition had arisen. It is observed in this judgment that no suit by a person claiming a title adverse to the trust could be maintained under Section 22 of the Rajasthan Public Trust Act, 1959 (referred to hereinafter as 'the Act') for canceliation of the entries. Since such a suit presupposes the existence of public trust and property attached to it. The suit was held not to be maintainable and a further observation was made that in such a situation the suit for declaration would lie. A request is stated to have been made to withdraw the suit with permission to file fresh and upon this the learned Judge observed that in the present case there was no necessity to grant any such permission to the plaintiffs for filing a fresh suit in respect of the subject-matter, since the suit was being dismissed as not maintainable in view of the provisions of Section 22 of the aforesaid Act and it was further held that the plaintiffs may, if they so like, file a separate suit if such a suit is permissible under law.
10. Laying emphasis on the aforesaid observation made in this case, the learned counsel has tried to make cut that Mst. Mariyam could not be permitted to contest the registration of the trust.
11. We are afraid no such contention can be entertained since nothing as such has been observed in this judgment and moreover, the matter having been left open, the appellant, would in the situation, be permitted to raise all such arguments before the authority granting registration. It appears to us that this exercise of filing the writ petition and thereafter this special appeal was in futility and so were the proceedings in the suit. The order granting registration was recalled, the appellant should have contested the matter and the things would have been got settled many years back. There was no fun in prosecuting the suit by Mst. Mariyam in view of the changed situation. Once the order granting registration was recalled there was hardly anything left in the suit which should have been withdrawn at that stage. Be that, as it may, there is no force in the contention of the learned counsel for the appellant nor this matter can be examined by us in the limited scope of the present appeal before us.
12. Our attention has further been invited to a decision of the Apex Court reported in Abdul Karim Khan v. Municipal Committee, Raipur (AIR 1965 SC 1744). In this case, it has been held that only persons interested in public trust and not persons disputing its existence can file objections in the proceedings for registration of the trust, There can hardly be any dispute to this proposition of law. But the case is hardly relevant to the matter in issue. Their Lordships were examining the provisions of the Madhya Pradesh Public Trust Act in the said case. In the present case, we are concerned with the interpretation which has to be given to the language used in Section 18 of the Rajasthan Public Trust Act, 1959.
13. Mst. Mariyam has not even entered to contest the registration. Only a permission has been granted to her to file objections. She cannot be estopped or thrown out on the question of locus standi even before her objections are actually heard and disposed of by the concerned authority. It would be open to the appellant to raise all these contentions there.
14. Looking from another angle, the application for registration of a public trust is made under Section 17 of the Rajasthan Public Trust Act, 1959 to the Assistant Commissioner having jurisdiction and under Section 18 an enquiry is to be held by him in the prescribed manner. For a proper understanding Section 18 of the said Act is reproduced hereunder: --
"18. Inquiry of registration. -- (1) On receipt of an application under Section 17 or upon an application made by any person having interest in a public trust or on his own motion, the Assistant Commissioner shall make an inquiry in the prescribed manner for the purpose of ascertaining-
(i) whether a trust exists and whether such trust is a public trust;
(ii) whether any property is the property of such trust;
(iii) whether the whole of any substantial portion of the subject matter of the trust is situate within his jurisdiction;
(iv) the names and addresses of the working 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 expenditure of such trust; and
(viii) the correctness or otherwise of any other particulars furnished under Sub-section (4) of Section 17. (2) The Assistant Commissioner shall give in the prescribed manner public notice of the inquiry proposed to be made under Subsection (1) and invite all persons having interest in the public trust under inquiry 10 refer within sixty days objections, if any, in respect of such trust."
15. On a bare look at the aforesaid provision the Assistant Commissioner while making the enquiry has to find out whether a trust exists and whether such a trust is a public trust and again whether the property claimed as trust property wholly or substantial portion belongs to the said trust.
16. Sub-section (2) makes it obligatory on the authority to issue a public notice of the proposed enquiry to be made under Subsection (1) and invite objections which by necessary implication would mean a decision on the objections and a firm finding that there exists a public trust and the property claimed as trust property belongs to the said Institution. It would, thus, appear that though the power appears to be administrative in nature but if one has look to the nature of the power conferred on the authority it makes out that the power to be exercised under Section 18 is quasi judicial. The phraseology used in the section and its various clauses is aimed at to achieve the object on the principles of natural justice or to put in the other way to prevent miscarriage of justice. Assuming if the property or an institution private in, nature is sought to be got registered by some unscrupulous persons and the person having right, title or interest in the said property or institution is not notified and the institution and the property is registered under the provisions of Section 18 of the Act and thereafter the person affected would be driven to file a suit under Section 22 or a suit for declaration of title. It is for that purpose that the Sub-section (2) appears to have been framed so that the public notice of the enquiry is made inviting objections from the persons having interest in the public trust under enquiry. Under Sub-clause (i) of Sub-section (1) of Section 18 the Assistant Commissioner has to find out whet her there does exist a trust of public nature or not and if on enquiry it is held that no such trust exists, the question of applicability of the other provision thus does not arise.
17. In the present case, the date that was fixed for inviting objections was 15-9-1975 and the order for registration of the trust was made on 12-5-1975. The order apparently on the face of it appears to be totally destructive of the very provision under which it was made and was, thus, rightly recalled by the Assistant Commissioner.
18. Mst. Mariyam after recalling of the order has been granted an opportunity of hearing and unless and until the objections filed by her against the proposed registration are heard and decided, there cannot be any registration of such a trust.
19. The use of the word 'inquiry' in Sub-clause (ii) and inviting objections thus invests in the authority the power to examine the locus standi of the parties, the name of the trust and other connected matters which are referred to in Sub-section (1) of Section 18 and it would be only after the authority has gone into the matter deeply and after scanning the material brought on the record by the parties. Thus, a finding has to be recorded disposing of the objections by giving valid reasons in support of the order. On the analysis and on the phraseology of Section 18 above the arguments raised by the learned counsel for the appellant looses all its force and in our opinion, the learned single Judge has rightly dismissed the writ petition and the impugned order docs not suffer from any illegality or infirmity. The Assistant Commissioner shall now examine the matter afresh by allowing the parties proper opportunity to be heard and place before it the relevant material in support of their contentions and whereafter an order would be passed for the registration or non-registration of the trust as the situation so warrants in the light of the observations made in this judgment.
20. The appeal is devoid of any merit and is consequently dismissed with costs.