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Madhya Pradesh High Court

Dr. Rajkumar Agrawal vs Anand Agrawal on 29 September, 2014

                             1     C.R.No. 59/2014

29/09/2014
      Shri Deepak Chandana, Advocate for he petitioner.
      Shri K.S.Tomar, Sr. Advocate with Shri J.S.Kaurav,
Advocate for the respondents.

By this Civil Revision petition, by defendant, challenge is made to the order dated 7/5/2014 passed by 3rd Additional District Judge, Vidisha inCivil Suit No. 26-A/2013. Defendant's application under Order VII Rule 11 CPC has been rejected.

Plaintiffs have filed a suit for declaration and permanent injunction with the following reliefs:-

**v& ;g ?kksf"kr fd;k tkos fd izfroknh dza + 1 }kjk izfroknh dza + 09 ds le{k izLrqr vkosnu fnukad 03 +04 +2012 vf/kdkfjrk foghu Fkk ,oa izfroknh dza + 1 dh vksj ls iqLrqqr vkoasnu fnukad 03 +04 +2012 ftlesa izfroknh dzekad 01 Lo;a ds }kjk izfroknh dza + 2 yxk;r 8 dks VªLVh fu;qDr djuk ,oa izfroknh dza + 2 dks v/;{k fu;qDr djuk cryk;k gS ] dks vey esa ykrs gq, izfroknh dza + 02 yxk;r 8 dks VªLVh fu;qDr djus ,oa izfroknh dza + 2 dks v/;{k fu;qDr djusa dk ikfjr vkns'k fnukad 15 +5 + 12 iw.kZr% voS/kkfud gS] vkSj mDr vk/kkj ij izfroknh dza + 02 yxk;r 8] oknh dza + 03 laLFkk ds U;klh ,oa izfroknh dza + 02 v/;{k ugha gS A c& ;g ?kksf"kr fd;k tkos fd izfroknh dza + 01 (Co- Trustee) Lo;aa ds }kjk izfroknh dza + 02 yxk;r 8 dks U;klh fu;qDr djus ,oa ifroknh dza + 02 dks v/;{k fu;qDr djusa dk oS/kkfud :Ik ls dksbZ vf/kdkj ugha Fkk ,oa mDr fu;qfDr;kW voS/kkfud gS A l& ;g ?kksf"kr fd;k tkos fd oknh dza 1 izfroknh dza + 01 ls lkFk izfroknh dza + 9 }kjk iz0 dza0 01ch@113@1999&2000 esa ikfjr vkns'k fnukad 30 +09 +03 ds vuqlkj Joint - Trustee gS] ,oa izfroknh dza + 01 dks Co-Trustee Lo;a ds }kjk fcuk fdlh vf/kdkj ds izfroknh 2 C.R.No. 59/2014 dza + 02 yxk;r 08 dks voS/k :i ls U;klh fu;qDr dj ,oa izfroknh dza + 02 dks v/;{k fu;qDr dj U;kl dh laifRr dks fodz; dj [kqnZ cqnZ djusa ls jksdusa ds fy, oknh dza + 01 oS/ kkfud :i ls l{ke gS A n& oknh dza + 01 izfroknh x.k ds fo:) bl vk'k; dh LFkkbZ fu"ks/kkKk izkIr djusa dk vf/kdkjh gS fd izfroknh dza + 01 yxk;r 08 oknh dza 03 ds LoRo] LokfeRo ,oa vkf/kiR;

dh fdlh Hkh laifRr dks fodz; u djsa vkSj u gh vU;Fkk Hkkj mRiUu djsa A b& izfroknh dza + 09 ds fo:) bl vk'k; dh LFkkbZ fu"ks/kkKk tkjh fd tkos fd izfr0 dza + 01 9 izdj.k dza0 01ch@113@1999&2000 esa fnukad 15 +05 +12 dks ikfjr vkns'k ds vk/kkj ij izfroknh dza0 01 yxkk;r 08 dks VªLV dh Hkwfe dks fodz; djus dh vuqefr iznku u djsa A** Averments in the plaint are to the effect that plaintiff No. 3 is a public trust registered under Public Trust Act vide order dated 27/2/1993. By the order of Registrar dated 30/9/2003 passed under Section 7 the entries as regard the founder trustees have been made consequent upon the enquiry under Section 6 of the Act namely 1. Shri Malchand Ji Agrawal, 2. Dr. Rajkumar Agrawal,, 03, Shri Laxmi Chand Ji Agrawal, 04 Shri Rameshwar Dayal Bansal, 05 Shri Anand Kumar Agrawal and 06 Shri Satya Narayan Agrawal. As per the entries made, plaintiff No. 1 is the founder and working trustee. The President of the Trust Shri Malchand Agrawal passed away on 27/8/2009. During his lifetime he did not appoint any President and after his death plaintiff No. 1 is looking after the trust properties as founder and working trustee. Defendant No. 1 without authority and competence, 3 C.R.No. 59/2014 illegally submitted an application on 3/4/2012 before the defendant No. 9 styling himself to be the trustee of aforesaid registered public trust and that he has appointed defendants No. 2 to 8 as new trustees and therefore, aforesaid 7 trustees be taken on record. Besides defendant No. 2 Shri Jaiprakash Agrawal be treated as the President of the Trust. It is submitted that neither there was any proposal nor resolution of the trust for the aforesaid alleged act of appointment of trustees and election of President of Trust, therefore, aforesaid application dated 3/4/12 was contrary to the bylaws of the trust; however, the Registrar, Public Trust, defendant No. 9 acting upon the aforesaid application passed the order dated 15/5/2012.

Plaintiff No. 2 is described as son of Late Shri Malchand Agrawal, the ex-president and therefore, it is averred that order passed by Registrar dated 15/5/2012 is without authority and jurisdiction and also contrary to the bylaws of trust besides facts on record among other ground. In para 11, 12 and 13 of the plaint it is averred that due to the order passed by the Registrar on 15/5/2012, defendants are making attempts to sale the trust properties treating the same as their private properties denying the legal status of the plaintiffs and are also changing the nature of properties. It is further averred that defendants No. 2 to 8 have no authority to 4 C.R.No. 59/2014 interfere with the management of the trust property or deal with the same.

Defendants No. 1,5,6,7 and 8 filed an application under Order VII Rule 11 of CPC inter alia contending that defendant No. 1 has created a public trust in the name of Shri Agrawal (Shri Harnandrai Ji Badrinarayan Ji) Dharmik evam Parmarthik Trust Vidisha in respect of agricultural land of his ownership and possession and the same was registered as Public Trust. There were 15 trustees at the time of its constitution. As per the registered bylaws of trust number of trustees were 15 however 5 trustees with late Shri Malchand Ji Agrawal as President were nominated. After death of Shri Malchand Ji Agrawal, the post of President was vacated. Defendant No. 1, who is the trustee of the trust had made appointment of 6 trustees and one president sent the information about the same to the Registrar for necessary action, consequent whereupon the Registrar, Public Trust has passed the order dated 15/5/2012, therefore, appointment of new trustees and the President was legal, duly recorded in the register maintained by the Registrar. The aforesaid order having been passed under Section 25 of the Public Trust Act, Trial Court had no jurisdiction to interfere with the same, therefore, instant suit cannot be protected under Section 8 of the Public Trust Act as power exercised by the Registrar is 5 C.R.No. 59/2014 under Section 25 of the Public Trust Act cannot be construed to be under Section 7 whereunder Registrar can made entries in the register in accordance with the findings recorded by him under Section 6 on completion of enquiry provided for under Section 5 of the Public Trust Act in the matter of registration of a trust. The similar suit vide No. 11-A/2013 has already been dismissed for want of service of notice under Section 80 of CPC, therefore, this suit is also barred by res judicata.

The trial Court has held that earlier suit was not decided on merits and the same was rejected on technical ground for want of notice under Section 80 of CPC to the State Government,therefore, the principle of res judicata cannot be applied to the instant suit, accordingly rejected the application. That apart, trial Court has further observed that instant suit has been filed seeking a declaration that the order passed by Registrar under Section 25 of M.P. Public Trust Act illegal and permanent injunction in relation to the trust properties. The nature of jurisdiction exercised by the Registrar is not that of Civil Court in absolute sense and is limited to the extend as provided for under Section 28 of the Public Trust Act. The jurisdiction of the Registrar is well defined under various provisions of the Public Trust Act. With aforesaid reasoning, the trial Court rejected the 6 C.R.No. 59/2014 application under Order VII Rule 11 of CPC.

Before adverting to submissions advanced by learned counsel for the parties, it is considered apposite to refer to relevant provisions of the Act.

Section 25 of the Public Trust Act reads as under:-

"25.Filling of Vacancies.-(1) Where a 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 within and the manner in which he proposes to fill the same.

(2) On receipt of such information the Registrar may, if he considers it 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.

(3) 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, fill 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."

To appreciate the scope, ambit, extend, limit and dimensions of the special powers of the Court in the context 7 C.R.No. 59/2014 of Section 25 of the Act, it is found relevant to consider the jurisdiction of the Court in the context of Sections 26 and 27 of the M.P. Public Trust Act as these provisions give special jurisdiction to the Court different from the original jurisdiction as contemplated under Section 92 of the CPC.

Sections 26 and 27 of the M.P. Public Trust Act are quoted herein below:-

"26. Application to Court for directions.-(1) If the Registrar on the application of any person interested in the public trust or otherwise is satisfied that-

(a) the original object of the public trust has failed;

(b) the trust property is not being properly managed or administered; or

(c) the directions of the Court is necessary for the administration of the public trust;

he may, after giving the working trustee an opportunity to be heard, direct such trustee to apply to Court for directions within the time specified by the Registrar.

(2) If the trustee so directed 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.

27. Court's power to hear application.-(1) On receipt of such application the Court shall make or cause to be made such inquiry into case as it deems fit and pass such order thereon as it may consider appropriate.

(2) While exercising the power under sub- section (1) the Court shall among other powers, 8 C.R.No. 59/2014 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 due 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.

(3) Any order passed by the Court under sub- section (2) shall be deemed to be a decree of such Court and an appeal shall lie therefrom to the High Court.

(4) No suit relating to a public trust under section 92 of the Code of Civil Procedure, 1908 (V of 1908), shall be entertained by any Court on any matter in respect of which an application can be made under Section 26. "

A Division Bench of this Court in the matter of Temple Achaleshwar through Pujari Ramadhar & Ors. Vs. Achaleshwar Public Trust and Ors. 1998 (II) MPJR 335 has held in para 8 and 10 as under:-

"8.There is no dispute between the parties that a Public Trust named Achaleshwar Mahadev Mandir Gwalior, Sanatandharm Mandir Road, Lashkar was registered under the provisions; of the M.P. Public Trust Act. In this connection reference may be made to the averments made in 9 C.R.No. 59/2014 para 3 of the plaint and para 1 of the special pleas of the written statement. If we peruse the provisions of the M.P. Public Trusts Act we find that it is self contained statute. Section 26 of the Act makes a provision for an application to Court for directions. It is important to mention the provisions of this section here. They are as follows:

"26. Application to Court for directions.-(1) If the Registrar on the application of any person interested in the public trust or otherwise is satisfied that-

(a) the original object of the public trust has failed;

(b) the trust property is not being properly managed or administered; or

(c) the directions of the Court is necessary for the administration of the public trust;

he may, after giving the working trustee an opportunity to be heard, direct such trustee to apply to Court for directions within the time specified by the Registrar.

(2) If the trustee so directed 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. Thus, an application has to be presented to the Registrar by any person interested in the public trust if he is satisfied with respect of the facts mentioned in clause (1). This section is very comprehensive. Of Course, no specific relief as such has been mentioned in the section but it provides three circumstances in which an application has to be made by the person interested in the public trust to the Registrar.

Clauses (a), (b) and (c) of the section are wide enough to embrace within its fold nearly all the reliefs which can be sought with respect to a public trust. Under clause (a) provision has been made to move the Registrar in a case where the original object of the public trust has failed, meaning thereby that any person interested in the public trust has to move an application before the Registrar if the object of the public trust has failed. Secondly, under clause (b) the Registrar has to be moved if the trust property is not properly managed or administered. This is too comprehensive and covers every thing relating to the management and administration of the public trust. Lastly, provision has been made in clause © with respect to any direction which the interest person may desire to seek from the court for the administration of the public trust. Thus, it is crystal clear that the provisions of Section 26 are self sufficient and they embrace within its fold all matters relating to the public trust. It has to be kept in mind that the provisions operate only when there is validly constitution public trust under the Act and there must be a satisfaction of the Registrar as provided under this Section. If we peruse section 27 of the M.P. Public Trust Act we find that it makes provision for Court's power to hear the application. Before referring to this Section it is necessary to revert back to the provisions of Section 26 where a provision has been made to the effect that the Registrar on being satisfied may direct the trustee to apply to Court for directions within the time specified by the Registrar as is evident from the provisions quoted above. After the receipt of the 11 C.R.No. 59/2014 application the powers of the Court have been enumerated in s. 27 of the Act. Sub-section (3) of this section makes a provision that an order passed by the Court under sub-section (2) shall be deemed to be a decree of such Court and an appeal shall lie therefrom to the High Court. Sub-section (4) is very important. Under this clause finality has been given to the order and a bar has been provided with respect to a suit relating to a public trust u/s 92 of C.P.C. on any matter with respect of which an application can be made u/s 26. We have already said above, that s.26 is wide enough to embrace all matters relating to a public trust. Thus, in the teeth of these two provisions no suit can be filed with respect to a public trust u/s 92 C.P.C. on a matter with respect to which an application can be made u/s 26.

10. The next point that needs consideration is as to what should have been done by the learned trial Court when once it was found by the learned trial Court that the suit was not maintainable in view of the provisions of s. 27 (4) of the Act. The learned trial Court has rejected the plaint under O.7, R.11 C.P.C. The contention of the learned counsel for the appellants is that the plaint should have been returned under O.7, R.10-A and in not doing so the learned trial Court committed an error which was also not remedied by the learned Single Judge. We have considered this aspect as well. First of all we make a reference of the provisions of O7, R.11 C.P.C. which provides for rejection of plaints. Clause (d) of O.7, R.11 C.P.C. shows that the plaint shall be rejected where the suit appears from the statement in the 12 C.R.No. 59/2014 plaint to be barred by any law. We have already shown above that the suit was itself barred by the provisions of s.27(4) of the M.P. Public Trust Act and as such it cannot be argued that the plaint could not be rejected. The order passed by the learned trial Court rejecting the plaint under this provision was, therefore, perfectly justified.

Section 25 of the Act on the other hand deals with filling of vacancy and provides procedure therefor which requires the working trustee of a public trust to inform the Registrar as soon as vacancy occurs in the Board of Trustees with the statement, the time within which and the manner in which the working trustee proposed to fill the same. The Registrar is empowered to issue directions to the working trustees in that behalf, if he considers it necessary has to ensure that the working trustee fills up the vacancy consistent with the instrument of trust or mode of succession specified in the register (bye laws). The Registrar is also empowered to fill up the vacancy if the working trustee either fails to give information as regards vacancy or does not fill up the vacancy within the time specified by him or comply with the directions issued by the Registrar.

The person having interest in the public trust if is aggrieved by the order of the Registrar appointing trustee may apply to the Court for setting aside the order of the Registrar within thirty days from the date of such order.

As such, the section 25 of the Act engrafted and provided for under the Act by itself is a Code in the matter of filling up vacancy in a public trust and is not subject to the provisions as contained in section 26 of the Act. The legislature has been conscious while specifying the subject matters with reference to which directions may be sought from the Court under section 26, viz., section 26(1)(a), (b) &

(c) of the Act , none of these clauses cover the subject-matter of filling up the vacancy. As such, the remedy provided for under section 25 of the Act to approach the Court against the order of the Registrar filling up the vacancy of Board of Trustees is not covered by section 26 of the Act. Therefore, the right of a person having interest in public trust to seek remedy in the Court against the order of the Registrar in the matter of filling up the vacancy in the Board of Trustees is not subjected to section 27(4) of the Act.

As such, sections 25 and 26 of the Act operate in different fields with special procedure. To keep both the provisions operational without the risk of overlapping, it is necessary to interpret the provisions contained thereunder strictly.

A person having interested in public trust while seeking relief in the Court against the order of the Registrar for filling up the vacancy in Board of Trustees cannot stretch 14 C.R.No. 59/2014 the remedies beyond the same under the garb of consequential relief as regards activities of the trustees or management of the trustees which shall be within the scope of section 26 of the Act and not under section 25 of the Act.

Now turning to the facts of the case, admittedly, the vacancy has been filled up by the orders of Registrar. The plaintiff is aggrieved by the aforesaid order and therefore, filed the instant suit. Under Section 25 (3) of the Public Trust Act, Civil Court has to address upon the limited question as to whether the order of Registrar appointing trustees was in accordance with the provisions of law or not. The Court has no other authority under Section 25 of the Public Trust Act. Accordingly, the relevant claim made in the plaint other then the relief (v), (c) and (l), cannot be looked into by the Court for which the petitioner has to approach the Registrar under Section 26 of the Act.

With the aforesaid observation, civil revision stands disposed of.

(Rohit Arya) Judge jps/-