Madhya Pradesh High Court
Prahalad Kushwaha vs Rani Deomati on 9 May, 2012
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR.
First Appeal No.138/2008
Prahlad Kushwaha and another.
-Versus-
Rani Devmati & others.
PRESENT : Hon'ble Shri Justice K.K. Trivedi.
Shri Ajay Kumar Jain, learned counsel for the
appellants.
Smt. Vandana Shroti, learned counsel for the
respondent No.2.
Shri G.S. Ahluwalia Advocate and Shri Arun Shukla,
learned counsel for the respondent No.3.
JUDGMENT
(09.05.2012) 1: This appeal is directed against the order dated 26.11.2007 passed in Misc. Judicial Case No.17/2007, by the Addl. District Judge Gadarwara, dismissing the claim made by the appellants, on an objection raised by respondents under Order 7 Rule 11 read with Section 151 of C.P.C..
2: Facts giving rise to filing of this appeal are that there was a public trust registered under the name and style of 'Dev Laxmi Narayan Ram Mandir Trust, Gangai , District Narsinghpur' (hereinafter referred to as Public Trust for short). It is contended that an application jointly was filed by the respondents No. 1 to 7, purporting to be made under Section 2 14 of Madhya Pradesh PublicTrust Act, 1951 (hereinafter referred to as the Act for short) before the Sub Divisional Officer (Revenue) Gadarwara, District Narsinghpur-cum- Registrar Public Trust for grant of sanction to exchange the land of the Trust with the private land of the aforesaid respondents. It was contended that already a decision was taken to exchange the land and such a decision was already given effect to, therefore, such a permission may be granted. It is contended that on the basis of such an application, permission was granted by the Registrar Public Trust, which order was sought to be challenged in suo motu revision by the Collector, who passed an order on 7.12.1995 and by the said order, the order of the Registrar Public Trust was set aside. An appeal was filed before the Additional Commissioner, Jabalpur, but the same was dismissed. The order was challenged before the Board of Revenue in revision and the Board of Revenue by its order dated 28.3.2002 set aside the order of the Collector and confirmed the order of exchange passed by the Registrar Public Trust. Challenging the order of the Board of Revenue, a Writ Petition No.2671/2002 was filed before this Court, but the said writ petition was dismissed as not maintainable, but a liberty was granted to the appellants to approach the Civil Court by instituting a Civil Suit, if so advised. The said order was challenged in a Writ Appeal before this Court and the writ appellate Court modified the order passed by the writ Court and instead of granting liberty to file a suit, it was held that the appellants may approach the authorities by making an application under Sections 26 and 27 of the Act within the parameters of law. It is contended that since such a provision was not applicable before the Registrar Public Trust, the suit itself was filed before the Court below under the aforesaid provisions and since objection with respect to the maintainability of the suit filed under Sections 26 and 27 of the Act was raised by the respondents, the Court below has 3 allowed the objection and has dismissed such application of the appellants by the impugned order. Therefore, this appeal is required to be filed.
3: Learned counsel for appellants, vehemently, contended that a bare perusal of the provisions of Sections 26 and 27 of the Act will make it clear that no application could have been filed by the appellants before the Registrar Public Trust against the order passed by the Registrar Public Trust. Such an order was to be called in question only by way of filing a suit. It is contended that provisions of Section 27 of the Act prescribes the power of the Courts to hear the application and in exercise of this power, the Court below was required to hear the objection of the appellants with respect to the order passed by the Registrar Public Trust. It is further contended that a suit is barred under Section 32 of the Act and, thus, the Civil Suit was not to be filed by the appellants. Only an application under Sections 26 and 27 of the Act could have been filed by the appellants. However, instead of considering such provisions of law, since the application aforesaid has been rejected, which constitutes a decree, the appeal has been filed.
4: In response, it is contended by learned counsel appearing for the respondent No.3 that in fact no such application was maintainable under Sections 26 or 27 of the Act. The Registrar Public Trust is required to pass an order under Section 14 of the Act with respect to the exchange of the land. Once such an order is passed, the finding is again to be given by the Registrar Public Trust with respect to the registration of the trust property and such a finding is required to be recorded under Section 9 of the Act. If any person having interest in the public trust is aggrieved by such a finding given by the Registrar Public Trust, he can file a Civil Suit under Section 8 of the Act withn six months from the date 4 of giving such a finding, and in that way the challenge can be made to such a finding of the Registrar Public Trust. No other way is available to challenge such a finding in the entire Scheme of the Act and, therefore, a person interested in the affairs of the trust, could have approached the Court challenging the order passed by the Registrar Public Trust in a suit and not otherwise. It is contended that all this has not been done, on the other hand, firstly, the complaint was made before the Collector, who exercised his suo motu power, set aside the order of the Registrar Public Trust though was not required to exercise any power under the Act against the order of the Registrar Public Trust. Such an order of the Collector was ultimately set aside by the Board of Revenue and the appellants thereafter approached this Court challenging the order of the Board of Revenue, without even disclosing their locus standi. In view of this, since findings have already been recorded by this Court, it was not open to the appellants to approach the Civil Court under Section 26 or 27 of the Act. At any rate, such an application was not maintainable and, therefore, the same has rightly been rejected. Learned counsel for the respondent No.2 has also supported such contentions.
5: Heard learned counsel for the parties at length and examined the record.
6: Undisputedly, there was a public trust registered. If a trust is registered, it is required to be governed by the provisions of the Act. After the registration of public trust, a finding is required to be given as is provided under Section 6 of the Act and the entries are required to be made in the register of public trust under Section 7 of the Act. It is that provision which is required to be looked into carefully. If an application is made under Section 14 of the Act before the 5 Registrar Public Trust seeking previous sanction of the Registrar in case of sale etc. of property belonging to public trust and if such a permission is granted, and if such a sale or transfer has taken place, there would be a change in the entries recorded in the register of public trust. Such an information of change is required to be given to the Registrar Public Trust under Section 9 of the Act. A further enquiry is required to be made by the Registrar Public Trust with respect to such a change and then he is required to amend the entries in the said register in accordance with such findings. Sub- section (3) of Section 9 of the Act prescribes that the provisions of Section 8 shall apply to any finding under this Section as they apply to a finding under Section 6 of the Act.
7: Thus, if a sanction was granted under Section 14 of the Act by the Registrar Public Trust for exchange of the land belonging to the public trust on an application made by the respondents, and if the exchange had taken place, the change was required to be recorded under Section 9 of the Act. After recording the said change, again the procedure as prescribed under Section 8 of the Act could have been resorted to by a person, who was aggrieved by such a change. In fact, the order passed on the application of the respondents for exchange of land with the land of the public trust, granted by the Registrar Public Trust could have been challenged within a period of six months from the date of order before the Civil Court. No other remedy was available to the person interested in affairs of the trust to challenge the order passed by the Registrar Public Trust. Since a specific remedy was available, it was required to be resorted to. The same was not done.
8: It is contended by the appellants that the order was passed by the Registrar Public Trust even when the exchange had already taken place and since a prior approval or the 6 permission of the Registrar Public Trust was needed before acting on the exchange of the land of the public trust, a serious misconduct was committed. This being so, it is contended that as per the law laid down by this Court in the case of Laxmi Chand Modi Vs. B.R. Mandal (1964 JLJ
313), the act of the Registrar Public Trust was per se illegal. If such a fact was brought to the notice of Civil Court, it was necessary on the part of Civil Court to adjudicate on the said issue. With great respect, it is submitted that Division Bench of this Court was never considering a situation where a change was recorded or had taken place in the trust property and the suit was not filed under the provisions of Section 8 of the Act. In the case of Laxmi Chand Modi (supra) , the orders of Registrar Public Trust said to be issued on some complaint, were sought to be challenged. It was the case where the orders were already issued under Section 14 of the Act by the Registrar Public Trust and, thereafter, on some complaint, orders were passed not to carry out the sanction granted by the Registrar Public Trust under Section 14 of the Act. This Court has categorically considered that once the order is passed under Section 14 of the Act by the Registrar Public Trust, he becomes functious officio and had no jurisdiction either to recall or review the sanction granted by him under Section 14 of the Act. The only remedy was available to file a suit under Section 8 of the Act.
9: It is not the case of the appellants that they approached the Registrar Public Trust, who did not recall the order, on the other hand, on some complaint suo motu action was taken by the Collector and he passed the order cancelling the order of the Registrar Public Trust, whereas, he was having no such power to do so. This was considered by the Board of Revenue and that is why the order of the Collector was set aside. It is no where pointed out by the appellants that they have 7 approached the Civil Court within six months from the date of order passed by the Registrar Public Trust granting sanction to exchange the land of the Public Trust. If some order was passed by the Registrar Public Trust according to the appellants themselves on 4.1.1994, any suit could have been filed by 3.7.1994, but no such suit was ever filed by anybody having any interest in the Public Trust. This being so, there was no occasion to interfere in the order of the Registrar Public Trust. In view of the law laid down by this Court, as is suggested, the appellants could not have approached the Registrar Public Trust under the provisions of Section 26 of the Act, but since a specific remedy is available which was not resorted to, the application under Section 26 read with Section 27 of the Act was not maintainable before the lower Court.
10 : It is contended by learned counsel for the appellants that in fact the suit should have been treated as one under Section 8 of the Act by the Court below and merely because wrong provision was quoted in the suit, the jurisdiction and authority of the Court below was not taken away. Placing reliance in the case of State of Karnataka Vs. Krishnaji Shriniwas Kulkarni and others [(1994) 2 SCC 558], it is contended by learned counsel for appellants that merely because Section 26 of the Act was not applicable, the suit itself was not to be dismissed under Order 7 Rule 11 of C.P.C., and it was required to be seen that the suit was maintainable under Section 8 of the Act. Further placing reliance in the case of Union of India Vs. Khajan Singh (AIR 1992 SC 1535), it is contended that once a remand is made by the High Court giving liberty to the appellants to approach the Court, it was to be seen that the suit was required to be decided on merit. Further placing reliance in the case of M.T. Khan and others Vs. Government of Andhra Pradesh and others (AIR 2004 SC 2934), it is contended that the similar law is 8 reiterated by the Apex Court and, therefore, the suit of the appellants was not to be dismissed on this count only.
11 : Such submissions of learned counsel for the appellants are considered. If it is accepted that the suit filed by the appellants was one under Section 8 of the Act, it was to be seen as to how the cause of action for filing of such a suit was available to the appellants or whether the suit was filed within the limitation prescribed under the Act. The order of exchange issued by the Registrar Public Trust on 4.1.1994, was challenged by the appellants. The cause of action was said to be available after grant of liberty by this Court. The writ petition of the appellants was decided on 7.1.2007. The appeal against the said order of the writ Court was decided on 5.4.2007. The suit itself was filed by the appellants on 23.4.2007. The writ appellate Court has modified the order passed by the writ Court, where the liberty was granted to file a suit, if permissible under the law. Similar order was passed by the writ appellate Court and it was said that the appellants may approach the authorities within the parameters of law. The meaning of within the parameter is that there should not be any violation of provisions of law under which a claim is made. Section 8 of the Act specifically prescribes that any person having interest in the Public Trust, if aggrieved by any finding of the Registrar, may within six months from the date of publication of the notice, institute a suit in a Civil Court to have such finding set aside or modified. There is no provision for enlargement of limitation prescribed in the Act as per the wordings of Section 8 of the Act. This was the intention of the legislature that frivolous complaints may not be made before the Registrar Public Trust by any person claiming interest in the Public Trust and, therefore, a specific period of limitation is prescribed. If such a restriction is there, the provisions of the Limitation Act would not be applicable for 9 condonation of delay in filing the suit. Apart from this, from the date of order passed by this Court, the limitation is not to be counted as the limitation already started running the day the order was passed by the Registrar Public Trust under Section 14 of the Act. This being so, the suit filed by the appellants was hopelessly barred by limitation. Thus, there is no force in such submission of the learned counsel for appellants.
12 : Consequently, this appeal fails and is hereby dismissed. However, there shall be no order as to costs.
(K.K.Trivedi) Judge 08 /05/2012 A.Praj.
10