Madhya Pradesh High Court
Heeralal Patel vs Registrar Public Trust And Sub ... on 9 January, 2017
WA-986-2016
(HEERALAL PATEL Vs REGISTRAR PUBLIC TRUST AND SUB DIVISIONAL OFFICER)
09-01-2017
Shri Ashish Shroti, learned counsel for the appellant.
Shri Swapnil Ganguly, learned Govt. Adv., for respondent No.1 on
advance notice.
Shri Sameer Seth, learned counsel for respondents No.2 and 3. Seeking exception to an order dated 8.12.2016 passed by the learned Writ Court in W.P. No.11157/2016, this appeal has been filed under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005.
An order was passed by the Registrar, Public Trust, Khandwa, in the matter of a dispute with regard to holding of office by the working trustee and President of the Trustee. It seems that the proceedings were held according to the appellant herein by the Registrar under Section 5 of the M.P. Trust Act, 1951 and the findings were recorded by the Registrar under Section 6 of the Act and thereafter, notification under Section 7 was not issued and as the finding recorded under Section 6 was without grant of proper opportunity of hearing and notice and without following the due process, the writ petition was filed challenging the action.
Initially, stay was granted by the writ Court but when the matter came up for hearing before the learned Writ Court on 8.12.2016, the learned Writ Court finding there to be a statutory alternate remedy available under Section 26 of the Trust Act, dismissed the writ petition. Shri Ashish Shroti, learned counsel for the appellant invites our attention to Section 26 of the M.P. Trust Act and points out that the provisions of Section 26 would be applicable only when the dispute pertains to trust property and its management and administration and in the matter of change of office bearers or right of an office bearer to hold office when a finding is recorded under Section 6 read with after an enquiry under Section 5 of the Act, a Civil suit has to be filed under Section 8 and for that right accrues to the aggrieved party only when a notification is issued under Section 7(1). He argues that in this case right to file Civil suit u/s 8 has not accrued as no notification under Section 7 of the Act was issued. That apart, as inquiry conducted and finding recorded u/s 5 read with Section 6 was without following principles of natural justice, it was a case where the writ Court should have interfered into the matter.
Either way Shri Ashish Shroti points out that the provisions of Section 26 was not applicable in the present case and therefore, the Writ Court committed an error in dismissing the writ petition by relegating the petitioner to take recourse to the remedy available under Section 26. Shri Sameer Seth refuted the aforesaid and argued that this was a case where the change was ordered in accordance to the provision of Section 9 of M.P. Trust Act and as change was ordered under Section 9 a suit under Section 8 should have been filed. However, Shri Shroti points out that until and unless a notification is not issued under section 7, even a suit under Section 8 is not maintainable. Even if for argument sake the contention of Shri Seth to say that the change was ordered Under section 9 is accepted.
Having heard learned counsel for the parties, we find that submissions as are cavassed before us in the matter of taking action after inquiry under Section 5 and finding recorded under Section 6 or the change as is contemplated under Section 9 have not at all being referred to by the learned Writ Court. The learned Writ Court has merely dismissed the writ petition on account of the fact that a Civil Suit could be filed under Section 26. However, a perusal of Section 26 goes to show that suit can be filed on reference made by the Registrar or permission granted by the Registrar with regard to the property of the trust or in the matter of managing and administrating a trust property. The question as to whether the dispute in the writ petition pertains to property of the trust or the right of a trustee to hold office has not been adverted to by learned Writ Court.
Keeping in view the aforesaid, we allow this appeal, quash the order passed by the learned Writ Court and request the learned Writ Court to take note of the objections as are canvassed by the parties before us and as indicated herein above and to proceed to decide the writ petition afresh in accordance with law.
With the aforesaid, this appeal stands allowed and disposed of.
(RAJENDRA MENON) (SMT. ANJULI PALO) ACTING CHIEF JUSTICE JUDGE mrs. mishra