Madhya Pradesh High Court
Kada Manikpuri Jijhotia Brahman Trust ... vs The Registrar on 17 August, 2017
HIGH COURT OF MADHYA PRADESH JABALPUR
WRIT PETITION NO. 170 of 2015
Kada Manikpuri Jijhotia Brahman Trust.
Vs.
Registrar, Public Trusts & another
For Petitioner : Mr. Pranay Verma, Advocate.
For Respondent No.1/State : Mr. Vishal Dhagat, Govt. Advocate.
For Respondent No.2 : Mr. Avinash Zargar, Advocate.
Order posted for: 17.08.2017.
(SUJOY PAUL)
JUDGE
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W.P. No. 170 of 2015
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No. W.P. No.170/2015
Parties Name Kada Manikpuri Jijhotia Brahman Trust.
Vs.
Registrar, Public Trusts & another
Date of Judgment 17/08/17
Bench Constituted Single Bench
Judgment delivered by Justice Sujoy Paul
Whether approved for reporting YES
Name of counsels for parties Petitioner: Mr. Pranay Verma, Advocate
Respondent No.1/State: Mr. Vishal
Dhagat, Govt. Advocate
Respondent No.2: Mr. Avinash Zargar,
Advocate.
Law laid down The Registrar Public Trust can exercise
power under S.9 of the act only in the
manner provided in the said provision. He
can act on the report of the managing trustee
and make appropriate change. If law
prescribes a thing to be done in a particular
manner,it has to be done in the same manner
and other methods are forbidden.'Change'
under Section 9 can be made on the report
of the managing trustee alone. Respondent
no. 2 has a remedy to file a civil suit as per
S.8 of the act.
Significant paragraph numbers Paras 11,12 and 15
(Order)
17.08.2017
This petitioner filed under Article 226/227 of the Constitution of India impugns the order dated 03.12.2014 (Annexure-P/8), whereby the Registrar, Public Trusts, Hoshangabad has entertained and allowed the application of respondent No.1 (Annexure-P/5) filed under Section 9 of the MP Public Trusts Act, 1951 (hereinafter called as "the Act").
2. The petitioner Kada Manikpuri Jijhotia Brahman Trust is a Public Trust registered under the provisions of the Act bearing Registration No.565/2013. The
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W.P. No. 170 of 2015case of the petitioner is that by registered gift deed dated 07.07.2001 (Annexure- P/1) the erstwhile owner Badri Prasad Dubey and Bhagwti Prasad Dubey gifted the land bearing Khasra No.116 area 0.101 hectare, Mauja Jalalabad, Patwari Halka No.17, Ward No.16, Tehsil and District Hoshangabad in favour of the M.P. Kada Manikpuri Jijhotia Brahman Samaj, City Branch Hoshangabad. The gift is followed by delivery of possession. In due course, the said Samaj came to be created as a public trust. On 03.03.2013, a meeting of the said Trust was held, wherein a resolution was passed by the members of the Trust resolving to get the Trust registered as a public trust under the provisions of the Act. In pursuance to such resolution, an application under Section 4 of the Act was preferred by the Working Trustee before the Registrar for registration of the said Trust as a public trust.
3. Mr. Pranay Verma, learned counsel for the petitioner contends that after making necessary inquiry as per Section 5 of the Act, the Registrar decided to register the Trust as a public trust and consequently by order dated 12.08.2013 (Annexure-P/3) directed for registration of petitioner's Trust as a public trust . It is urged that during the course of inquiry as per Section 5 of the Act, despite publishing notice in the official gazette inviting objections, no objector turned up and raised any objection. Accordingly, the Trust was registered and relevant entry was made in the statutory register (Annexure-P/4). The findings so recorded by the Registrar in the register were published on the notice board of his office as required under Section 7(1) of the Act. No civil suit was instituted against such findings by any person within a period of six months from the date of publication of notice under Sub-section (1) of Section 7 or Section 8 of the Act.
4. The respondent No.2 on 23.07.2014 filed an application (Annexure-P/5) under Section 9 of the Act for deletion of the immovable property of the Public Trust bearing Khasra No.116, area 0.101 hectare with a double story house constructed thereupon on the ground that the aforesaid property does not belongs to the petitioner Trust, but the same belongs to the respondent No.2. It is wrongly recorded as property of petitioner's Trust. The Respondent No.1/Registrar issued notice to the petitioner on the said application and in turn, the petitioner filed its
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W.P. No. 170 of 2015reply-cum-application under Order 7 Rule 11 r/w Section 151 of the Code of Civil Procedure (Annexure-P/6).
5. Mr. Verma, learned counsel for the petitioner submits that the respondent No.1 has committed an error in entertaining and deciding the application dated 27.07.2014 (Annexure-P/5) in favour of the respondent No.2. He strenuously contended that the application preffered under Section 9 of the Act was not maintainable. The appropriate remedy for the respondent No.2 was to file a civil suit. In support of this contention, he drew the attention of this Court on various provisions of the Act. He also relied on 1969 MPLJ 74, [Temple of Shri Jagannathji Publi Trust Champa & another vs. Salharu Prasad & another], 1976 MPLJ 722, [Swami Indredevanand vs. State of M.P. & others], and 2010 (1) MPLJ 659, [Julious Prasad vs. State of M.P.].
6. Per-contra, Mr. Avinash Zargar, learned counsel for the respondent No.2 urged that the respondent No.2 is a Society registered under the M.P. Society Registrikaran Adhiniyam 1973. Its registration number is 6841/1999. He submits that Shri Badri Prasad Dubey and Bhagwati Prasad Dubey gifted their property for organizing and carrying out the activities of Kadha Manikpuri Jijhotia Brahman Samaj, Bhopal through Shri Narendra Tiwari on 07.07.2001. The gift deed is already filed by the respondent No.2 in this case. Mr. Zargar has taken pains to contend that the respondent No.2 built a two story building on the said land from the money (about Rs.50 Lakhs) collected from the members of the Society and the activities of the Society is reflected from the letter dated 21.06.2010 (Annexure-R/2-3). The respondent No.2-Society used to publish its yearly souvenir. The relevant pages of the said souvenir are filed as Annexure- R/2-4. Mr. Zargar submits that the petitioner has committed fraud which vitiates everything. The petitioner has a remedy under Section 24 of the M.P. Public Trusts Act. The property of the respondent No.2-Society has been illegally included by creating a trust by one Udit Kumar Dwivedi and five other persons. No notices of any nature were given to the Society. The order of the respondent No.1 whereby property of respondent no 2 was included in the register is wholly illegal.
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W.P. No. 170 of 20157. No other point has been pressed by the learned counsel for the parties.
8. I have heard the parties at length and perused the record.
9. Before examining the rival contentions raised by the learned counsel for the parties, it will be convenient to take note of few provisions of the Act.
Section 4 provides that within three months from the date of coming into force of the section, the working trustees of every public trust shall apply to the Registrar having jurisdiction for the registration of the public trust. Sub-section (3) of the Section 4 lays down that the application shall be in such form as may be prescribed and shall contain the particulars enumerated in this sub section. Sub- section (5) of Section 4 provides an appeal against the decision made by the Registrar regarding registration of a public trust and it also lays down that the order of the Appellate Authority shall be final. Section 5 enjoins the Registrar to make inquiry in the prescribed manner for the purposes of ascertaining whether the trust is a public trust; whether any property is the property of the trust; the names and addresses of the trustees and mangers and the mode of succession to the office of the trustee of such trust; the amount of gross average annual income and expenditure etc. Section 6 lays down that on completion of the inquiry provided for under Section 5, the Registrar shall record his findings with reasons therefor as to the matters mentioned in the said section. Section 8 lays down that any working trustee or person having interest in a public trust or any property found to be trust property, feeling aggrieved by any finding of the Registrar under Section 6 may, within six months from the date of the publication of the notice under sub-section (1) of Section 7, institute a suit in a civil court to have such finding set aside or modified.(see 2003 vol 5 SCC 399 Seth Chand RatanV.Pd.Durga Pd.)
10.The respondent No.2 filed application (annexure P/5) under Section 9 of the Act. This provision reads as under:
"9. Change.- (1) Where any change, occurs in any of the entries recorded in the register the working trustee shall within ninety days from the date of the occurrence of such change or where any change is desired is such entries in the interest of the administration of such
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public trust, report in the prescribed manner such change or proposed change to the Registrar.
(2) If on receipt of such report and after making such inquiry as the Registrar may consider necessary, the Registrar is satisfied that a change has occurred or its necessary in any of the entries recorded in the register in regard to a particular public trust, he shall record a finding with the reasons therefor and subject to the provisions contained in sub-section (3) amend the entries in the said register in accordance with such findings.
(3) The provisions of section 8 shall apply to any finding under this section as they apply to a finding under section 6."
[Emphasis Supplied]
11. The respondent No.1 in his order dated 03.12.2014 (Annexure-P/8) opined that the respondent No.2 raised an objection in the application filed under Section 9 of the Act regarding inclusion of certain property by the petitioner in their trust, whereas the said property belongs to the respondent No.2. Thus, the respondent No.2 made a request for deleting the description of said entry relating to said property from the statutory register. Learned Registrar opined that the respondent No.2 has not raised any objection regarding registration of petitioner's Trust. The respondent No.2 is aggrieved by inclusion of its property as the Trust's property of the petitioner. Thereafter, the learned Registrar examined the relevant documents and decided to delete the name/description of certain properties from the relevant register. The pivotal question is whether in exercise of power under Section 9 of the Act the respondent No.1 was justified in passing the said order. Section 9 of the Act talks about "change".As per the plain reading pf this section the Working Trustee can within 90 days from the date of occurrence of such change or where any change is desired in any entry, can report in the prescribed manner or propose change to the Registrar. On receipt of such report, the Registrar can conduct necessary inquiry and after due satisfaction, can record the finding with reasons therefor and can amend the entry in the relevant register. A careful reading of Section 9 makes it clear that the whole exercise of "change" can be done on the report of the Working Trustee. Section 9 does not permit the Registrar to entertain any other application from any other person or exercise this power suo-motu. Thus, I find force in the argument of Shri Verma, that the application filed on behalf of the respondent No.2 under Section 9 of the Act was not maintainable. This is trite law that if meaning of statute is plain and unambiguous, effect must be given to it
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W.P. No. 170 of 2015irrespective of consequences. (See: Nelson Motis vs. Union of India reported in 1992 (4) SCC 711).
12. It is equally well settled that if a statue prescribes a thing to be done in a particular manner, it has to be done in the same manner or not at all. Putting it differently, if a particular procedure is prescribed in a statute to do a thing in a particular manner, the other methods are forbidden (See: AIR 1959 SC 93, [Baru Ram (Shri) vs. Shrimati Prasanni & others], 2001 (4) SCC 9, [Dhanajaya Reddy vs. State of Karnataka], 2002 (1) SCC 633, [Commissioner of Income Tax, Mumbai vs. M.H. Anjum Ghaswala & others] and judgment of this Court reported in 2011 (2) MPLJ 690, [Sabyanjay Tripathi & another vs. Banarsi Devi].
13. In the light of aforesaid, I have no scintilla of doubt that the respondent No.1 has erred in entertaining the application under Section 9 of the Act on behalf of the respondent No.2 who is admittedly not a Working Trustee pf the petitioner trust. No doubt, as per Sub-section (3) of Section 9 of the Act, the remedy of filing civil suit was available to the petitioner but this is trite law that despite availability of alternative remedy writ petition can be entertained if there is complete lack of jurisdiction with the officer or authority or tribunal to take action or there has been a contravention of fundamental rights or there has been a violation of rules of natural justice. In the present case, as noticed, the respondent No.1 passed the impugned order under section 9 of the act without authority of law. Thus, this petition can been entertained inspite of availability of alternative remedy under Sub-section (3) of Section 9 of the Act. (See: 2003 (5) SCC 399, [Seth Chand Ratan vs. Pandit Durga Prasad (D) by Lrs. & others]) .
14. So far as the objection of other side regarding remedy of appeal under Section 24 is concerned, a conjoint reading of Section 23 & 24 shows that the present controversy has nothing to do with the eventualities which may be subject matter of adjudication of appeal as per Section 23 & 24 of the Act. In the application (Annexure-P/5) filed under Section 9 of the Act, the respondent No.2 has not made any allegations of fraud against the petitioner. Thus, the argument
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W.P. No. 170 of 2015of Mr. Zargar that fraud vitiates everything and therefore no interference may be made in this petition, cannot be entertained.
15. This Court in the case of Swami Indredevanand (Supra) held that if a Working Trustee or other person is aggrieved by the order of Registrar, he may file civil suit before the Court of competent jurisdiction. Section 8 of the Act, in no uncertain terms makes it clear that it is very wide and permits (i) any Working Trustee; (ii) person having interest in the public trust and (iii) any aggrieved person by any finding of the Registrar to institute a suit in the Civil Court to have such finding set aside or modified. Sub-section (1) & (2) of Section 8 makes it clear that the appropriate remedy for the respondent No.2 was to file a civil suit against the findings of the Registrar which were recorded in the relevant register. The Act does not contain any provision which enables the Registrar/quasi judicial authority to review his own order. A Division Bench of this Court in Julious Prasad (Supra) held that in M.P. Public Trust Act and Rules, a quasi judicial authority cannot review its own order unless the power of review is conferred on it by the relevant statute from which he derives jurisdiction. In the case reported in 2012 (3) MPLJ 673, [Prahlad Kushwaha & another vs. Rani Devmati & others], this Court held that against the order passed by the Registrar under the Act, the only remedy to challenge the said order is to file a suit under Section 8 of the Act. The Apex Court in Seth Chand Ratan (Supra) poignantly held as under:
"The scheme of the Act shows that after holding an inquiry, as provided under Section 5, the Registrar has to record his findings with reasons therefor and Section 7 enjoins making of entries in the register in accordance with the findings recorded under Section 6. Sub-section (2) of Section 7 lays down that the entries so made shall, subject to the provisions of the Act, be final and conclusive. Section 8 confers a right upon a person who is aggrieved by any finding of the Registrar recorded under Section 6 to institute a suit in a civil court within six months to have such finding set aside or modified. In view of these provisions, the order passed by the Registrar in Case No. 206, by which it was held that Maheshwari Panchayati Mandir is a public trust and Shri Madan Mohan Mandir and the shops in the precincts thereof were the property of the Trust and were being managed by it, became final and conclusive. The only remedy available to Pandit Kamta Prasad was to institute a civil suit under Section 8 of the Act for setting aside the said finding "
[Emphasis Supplied]
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W.P. No. 170 of 201516. In the light of aforementioned discussion, it is crystal clear that the Registrar has clearly erred in entertaining the application filed by the respondent No.2 under Section 9 of the Act. Consequently, the order dated 03.12.2014 (Annexure-P/8) is set aside. However, for redressal of his grivance, liberty is reserved to the respondent No.2 to avail appropriate remedy in accordance with law. Petition is allowed to the extent indicated above.
(Sujoy Paul)
s@if Judge