Madhya Pradesh High Court
Shri Dev Mahadevji Mandir,Sarrvajanik ... vs Rajesh Kumar Judgement Given By: ... on 21 August, 2012
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
(1)
M.A. No.2170/2009
HIGH COURT OF M. P. JUDICATURE AT JABALPUR
Single Bench :
Hon'ble Shri Justice A.K. Shrivastava
Misc. Appeal No.2170 / 2009
Appellant : Shri Dev Mahadevji Mandir,
Sarvajanik Nyas No.2/Ra Village
Rehli, Tehsil Rehli, District Sagar
Through Alok Tiwari, S/o. Late
Kanchhedilal Tiwari, Computer
Operator, Block Rakai Damoh, Tehsil
and District Damoh (M.P.)
Vs.
Respondents: 1. Rajesh Kumar, S/o. Late Krishnanand
Tiwari, Occupation Shiksha Karmi,
Baleh School, R/o. Ward No.9, RAhli,
District Sagar.
2. Shriman Panjiyak Sarvajanik
Nyas/Sub Divisional Officer Rehli,
District Sagar (M.P.)
_________________________________________________________
Shri B.P. Sharma, Advocate for appellant.
Shri Priyank Choubey, Advocate for respondent No.1.
Shri Akhilesh Shukla, Deputy Government Advocate for
respondent No.2.
_________________________________________________________
ORDER
(Passed on this 21st day of August, 2012) This is an appeal under Section 27 of the M.P. Public Trusts Act, 1951 (In short "Act 1951") has been filed by the Deity Shri Dev Mahadevji Mandir through trustee Kanchhedilal against the order dated 30.03.2009 passed by learned Additional District Judge, Rehli District (2) M.A. No.2170/2009 Sagar in M.J.C. No.1/2008 and simultaneously also deciding M.J.C. No.2/2008.
2. In pursuance to the order dated 08.10.2007 passed by the Registrar under the Act 1951 an application under section 26 was filed by Deity Shri Dev Mahadevji Mandir through trustee Kanchhedilal. Similarly another application which was registered as MJC No.2/2008 was filed by the Deity Shri Dev Mahadevji Mandir through Managing Trustee Rajesh Kumar for the appointment of trustee. Both the applications were clubbed and consolidated and by a common order learned Court below has disposed of both the applications and passed the following order:-
18- vr% mijksDr vk/kkjksa ij nksuksa ,e-ts-lh- esa izLrqr vkosnu i=ksa dk fujkdj.k djrs gq;s ;g vkns'k fn;k tkrk gS fd %& ¼1½ Jh nsot egknsoth eafnj VªLV dz- 2@j ds VªLVh dUNsnhyky dks gVkrs gq;s mlds LFkku ij jftLVªkj ifCyd VªLV ,oa VªLVh jkts'k dh lgefr ls uohu VªLVh fu;qDr fd;k tk;s ,oa nksuksa VªfLV;ksa esa ls dksbZ ,d eafnj esa gksus okys nksuksa le; dh iwtk vkjk/kuk vkSj le; le; ij gksus okys /kkfeZd dk;Zdze vkfn Hkh lEiUu djk;sA ¼2½ iwtk vpZuk djus okys VªLVh] tks Hkh gks] ds jftLVªkj ifCyd VªLV] VªLVh jkts'k vkSj uohu VªLVh dh lgefr ls VªLV ds fgrksa dks ns[krs gq;s ,d ekuns; r; djrs gq;s fn;k tk;sA ¼3½ nksuksa VfªLV;ksa dh lgefr ls VªLV vius lkekU; dk;Zdze djrk jgs] fdUrq VªfLV;ksa dh vkilh lgefr ugha gksus ij] bls jftLVªkj ifCyd VªLV vFkok mlds }kjk vf/kd`r O;fDr tSls dh rglhynkj vkfn ls fujkd``r djk;k tk;sa ¼4½ VªLV dh d`f"k Hkwfe dh lkykuk uhykeh vkSj VªLV dh lkykuk vk; ds 25 izfr'kr ls vf/kd [kpZ ds ckjs esa jftLVªkj ifCyd VªLV vFkok muds }kjk vf/kd`r O;fDr ls] iwokZuqefr yh tk;s vkSj foxr o"kZ ds lkykuk [kpZ dk vkfMV@voyksdu Hkh uhykeh ds le; djk fy;k tk;sA jftLVªkj ifCyd VªLV vFkok mudh vksj ls vf/kd`r O;fDr] Hkwfe dh okf"kZd uhykeh dh izLrkfor jkf' ls de ls de nl izfr'kr vf/kd fnyok;s tk ldus dh fLFkfr esa izLrko dks jnn djrs gq;s Lor% uhyke dj ldsaxs vFkok VªLV dks blds ckjs esa izLrko Hkst ldsaxsA jftLVªkj ifCyd VªLV vFkok mlds }kjk vf/kd`r O;fDr dks vkns'k@lykg VªfLV;ksa ij cU/kudkjh gksxh vkSj ,slk ugha djus ij bls VªLV ds fgrksa ds foijhr dk;Z ekuk tk;sxkA**
3. The contention of Shri Sharma learned counsel for appellant is that the judicial function to appoint new trustees should have been discharged by the Court itself and it should not have been directed to (3) M.A. No.2170/2009 the Registrar to discharge this function. In this context learned counsel has invited my attention to Section 27 of the Act of 1951 wherein powers of the Court have been described and also placed reliance on the decisions of this Court in Shri Deo Janki Raman Mandir Trust, Gora Khurd vs. State of M.P. and others 2003(2) MPLJ 448 and Trust, Gora Khurd, District Sagar vs. State of M.P. and others 2003(5) MPLJ SN 41. Hence, it has been prayed that by allowing this appeal the impugned order be set aside and the District Judge be directed to decide the matter by appointing new trustees.
4. On the other hand Shri Choubey, learned counsel for respondent No.1 argued in support of the impugned order and also raised a preliminary objection that this appeal is not maintainable for two reasons. Firstly by the impugned order the working trustee Kanchhedilal was directed to be removed from his office and hence he was not having any locus standi to file appeal by assailing the impugned order. Secondly, during the pendency of this appeal, said Kanchhedilal had also died and his son Alok Tiwari is not having any locus standi to continue this appeal. Thus, it has been prayed that this appeal be dismissed on the ground of maintainability as well as on merits.
5. Having heard learned counsel for the parties I am of the view that this appeal deserves to be allowed and the case is required to be sent back to learned District Judge.
6. So far as preliminary objection raised by learned counsel for respondent No.1 in regard to maintainability of appeal is concerned, (4) M.A. No.2170/2009 suffice it to say that although Kanchhedilal has been directed to be removed from the post of working trustee by the impugned order but since the application under Section 26 was filed by Kanchhedilal for Deity Shri Dev Mahadevji Mandir through trustee and further because the impugned order has been passed against him, therefore, for the purpose of this appeal he can assail the order in the name of deity since the original application was filed by him in the name of deity. Even otherwise, now said Kanchhedilal is no more in the world. So far as the another objection that after the death of Kanchhedilal his son Alok Tiwari cannot be brought on record is concerned, suffice it to say that only for the purpose of continuing this appeal he can file necessary application so as to challenge the impugned order. At-present he is not at all a trustee and thus he is only permitted to continue this appeal. Thus, this appeal cannot be dismissed on the preliminary objections raised by learned counsel for respondent No.1 and they are hereby overruled.
7. Now coming to the merits of the case, on bare perusal of the impugned order, which I have quoted hereinabove, it is gathered that the Court below has directed the Registrar to appoint new trustee of trust namely Shri Dev Mahadevji Mandir, which according to me he cannot do for the reasons stated hereinafter.
8. Section 25 of the Act 1951 is in regard to filling of vacancies and under this section where the public trust is under the management of a Board of Trustees, the working trustee shall, as soon as a vacancy occurs in the Board, inform the Registrar of such vacancy and the time (5) M.A. No.2170/2009 within and the manner in which he proposes to fill the same. On receipt of such information the Registrar may, if he considers if necessary, issue any directions to the working trustee regarding the filling of such vacancy not inconsistent with any instrument of trust or the mode of succession specified in the register and the working trustee shall comply with any such direction. However, if the working trustee fails to give any such information or to fill the vacancy within the time specified by him or comply with any direction issued by the Registrar, the Registrar may, by order passed in writing, till the vacancy and any person having interest in the public trust who may be aggrieved by the order of the Registrar, may apply to the Court for setting aside the order of the Registrar within the thirty days from the date of such order. But this section would not be applicable in the present case for the simple reason that no such application was ever filed by working trustee of the Management of Trustee.
9. Section 26 of Act 1951 speaks about application to Court for directions and under this provision if the Registrar on the application of any person interested in the public trust or otherwise is satisfied that (a) the original objection of the public trust has failed; (b) the trust property is not being properly managed or administered; or (c) the direction of the Court is necessary for the administration of the public trust; he may, after giving, the working trustee an opportunity of hearing, direct such trustee to apply to Court for direction within the time specified by the Registrar. Under sub-section (2) of Section 26 if the trustee so directed (6) M.A. No.2170/2009 fails to make an application as required or if there is no trustee of the public or if for any other reason, the Registrar considers it expedient to do so, he shall himself make an application to the Court. In the present case, since there is an order dated 08.10.2007 of Registrar, Public Trust directing the parties before him to file necessary application under Section 26 to the Court, both the parties filed applications under the said provision before the Court.
10. On bare perusal of Section 27 of the Act of 1951 it is gathered that it speaks about Court's power to hear application and on its bare perusal it is luminously clear like a noon day that while exercising to decide the application under Section 26 of the Act 1951 the Court is required to hold an inquiry and thereafter the Court may pass appropriate order. Under sub-section (2) of Section 27 while exercising power under sub-section (1), the Court shall among other powers, have power to make an order for :-
(a) removing any trustee;
(b) appointing a new trustee;
(c) declaring what portion of the trust property or of the interest there in shall be allocated to any particular object of the trust;
(d) providing a scheme of management of the trust property;
(e) directing how the funds of a public trust whose original object has failed, shall be spent, having the regard to the original intention of the auditor of the trust or the object for which the trust was created;
(f) issuing any directions as the nature of the case may require.
By putting emphasis to sub-clause (b) of the aforesaid provision, no argument is required to decide that appointment of a new trustee is to (7) M.A. No.2170/2009 be made by the Court and not by the Registrar. Since learned Court below has totally deviated from the procedure and has passed the impugned order de hors to the aforesaid provision, on this short term, the impugned order is liable to be set aside.
11. Learned counsel for appellant has rightly placed reliance on the aforesaid two decisions of this Court Shri Deo Janki Raman Mandir Trust, Gora Khurd and Trust, Gora Khurd, District Sagar (supra) wherein it has been categorically held that while passing an order upon the application under Section 26 of the Act of 1951, the appointment of a trustee is to be made by the Court and this power should not be confined to the Registrar.
12. The Division Bench of this Court in Dalludas v. Registrar of Public Trusts, Hoshangabad 1971 JLJ SN 135 has categorically held that the Registrar has no power to remove the existing trustee and appoint another by his own order and this power vests in the Civil Court only. At the most the Registrar can refer the matter to the Civil Court. There is another decision of Division Bench in Sheoprasad Dubey v. Registrar, Public Trusts, Sagar & others 1972 JLJ SN 6 wherein it has been categorically held that Registrar has no jurisdiction to appoint any committee to take charge of trust property. The powers given to the Registrar are enumerated by Clauses (a), (b) and (c) of Section 26 of the Act 1951. The intention of legislature is that whenever the Registrar considers it necessary that some arrangement should be made to manage the trust property, he should apply to the District Judge who (8) M.A. No.2170/2009 has power to make suitable arrangement for the management of the trust property. Thus, according to me, the impugned order passed by learned Court below directing Registrar to appoint new trustees is without jurisdiction and indeed this power should have been exercised by the Court.
13. The term "Court" has also been defined in Section 2(1) of the Act of 1951, according to which it means the principal Civil Court of Original jurisdiction in the district. Thus, the appointment of new trustees should have been made only by the Court and not the Registrar.
14. For the aforesaid reasons, the impugned order cannot be allowed to remain stand and the same is hereby set aside. Learned Court below is hereby directed to appoint new trustees looking to the facts and circumstances of the case to benefit the trust and its property.
15. This appeal is allowed and disposed of. No costs.
(A.K. Shrivastava) Judge 21.08.2012 SS