Madhya Pradesh High Court
Shri Jain Shwetamber Ajeetnath Ji ... vs The Registrar Public Trust on 9 July, 2018
THE HIGH COURT OF MADHYA PRADESH
W.P. No. 14746/2018
1 Shri Jain Shwetamber Ajeetnath Ji Mandir Trust
V/s. The Registrar, Public Trust & others.
Indore, dated : 09.07.2018
Shri R.S. Chhabra, learned counsel for the petitioner.
Heard on the question of admission.
ORDER
The petitioner has filed the present petition being aggrieved by order dated 15.11.2017 passed by the Registrar, Public Trusts, Indore, by which, the application filed u/s. 9(1) of the M.P. Public Trusts Act, 1951 (hereinafter, for short, "the Act of 1951") has been rejected.
2. The petitioner is a Trust registered under the Act of 1951 bearing Registration No. 4/1968. Prakash Chandra Bhandari is the President of the Trust who is duly authorised by the trustees of the Trust to file the present petition. The petitioner filed an application before the respondent No.1 seeking entry of the following properties in the Register of Trust maintained under Rule 3 of M.P. Public Trust Rules, 1962 (hereinafter, for short, "the Rules of 1962") :
(i) Shri Shwetamber Ajit Nath Ji Mandir (Lal Mandir), 13, Peepli Bazar, Bhagwan Mahavir Marg, Indore (not in dispute);
(ii) Jain Mandir, Dharmshala and 10 shops situated at Gram Budhiyana Panth, Chandrawati Ganj, Tehsil Sanwer, Indore on Land Survey No. 18, Rakba 0.283 hectare.
3. According to the petitioner, there are 10 shops constructed in the premises of Jain Mandir Dharmshana, Chandrawati Ganj. On 21.6.1936, the said Dharmashala and the sops were given/transferred to Jain Swayam Sevak Mandal Trust. Later on, same property was transferred to the petitioner Trust on THE HIGH COURT OF MADHYA PRADESH W.P. No. 14746/2018 2 Shri Jain Shwetamber Ajeetnath Ji Mandir Trust V/s. The Registrar, Public Trust & others.
10.5.1986 and a registered deed was also executed on 8.3.1996. According to the petitioner, by virtue of the aforesaid registered deed, the Trust had started receiving the rent from the tenants of the shops. The Gram Panchayat has also issued the certificate that the said Dharmashala property is registered under the name of the petitioner Trust.
4. In view of the above, the petitioner Trust filed an application u/s. 9 of the Act of 1951 before the respondent No.1 on 29.9.2015, seeking entry of the Dharmashala properties in the Register maintained in Form II under Rule 3 of the Rules of 1962.
5. Respondents No.2 to 4 filed objection to the aforesaid application on 22.2.2017 before the respondent No.1 stating that the said Dharmashala property is Government property and the same is being managed by the residents of Chandrawati Ganj village. The petitioner Trust filed a detailed parawise reply to the aforesaid objection.
6. The respondent No.1 vide order dated 15.11.2017 has rejected the application of the petitioner Trust on the ground that the Dharmashala property is situated at Survey No.18 area 0.283 Hect. which is a Government land as recorded in Khasra Paanch Sala. Being aggrieved by the aforesaid order, the petitioner has filed the present petition before this Court.
7. Shri R.S. Chhabra, learned counsel appearing for the petitioner, submitted that the Registrar has travelled beyond its jurisdiction while deciding the title of the property. U/s. 9 of the Act of 1951, he was required to conduct only an summery enquiry in respect of the properties. The finding recorded by the Registrar in THE HIGH COURT OF MADHYA PRADESH W.P. No. 14746/2018 3 Shri Jain Shwetamber Ajeetnath Ji Mandir Trust V/s. The Registrar, Public Trust & others.
respect of Survey No.18 is perverse as the petitioner has filed all the documents as mentioned in Para 10 of the writ petition in respect of ownership of the petitioner Trust. In the revenue records, the said land is recorded as 'Abadi land', that does not mean that it is a Government land. In respect of his contention, he has placed reliance over the judgment of apex Court in the case of Abdul Karim Khan V/s. Municipal Committee : AIR 1965 SC 1744 on the point that respondent No.2 to 4 have no locus to file an objection before the Registrar.
8. I have heard Shri Chhabra, learned counsel for the petitioner at length and perused the material available on record.
9. The present petition is filed against the order dated 15.11.2017 passed u/s. 9 of the Act of 1951. The issue under consideration before this Court is whether the writ petition is maintainable in respect of challenge to the order passed by the Registrar or the petitioner is having remedy to file a civil suit u/s. 8 of the Act of 1951.
10. That, u/s. 5, the Registrar makes an enquiry on receipt of an application u/s. 4 or upon an application made by any person having interest in a public trust or on his own motion for the purposes of ascertaining whether the trust is a public trust; whether any property is the property of the trust; etc. On completion of the enquiry, the Registrar records his finding with reasons u/s. 6 of the Act of 1951. U/s. 7 of the Act of 1951, the Registrar shall cause entries to be made in the register in accordance with the findings recorded by him u/s. 6. The entries so made shall be subject to the provisions of the Act of 1951 and liable to be changed under the THE HIGH COURT OF MADHYA PRADESH W.P. No. 14746/2018 4 Shri Jain Shwetamber Ajeetnath Ji Mandir Trust V/s. The Registrar, Public Trust & others.
provisions of the act or rule made thereunder, be final and conclusive. U/s. 8 of the Act of 1951, any working trustee or person having interest in a public trust or any property found to be trust property, aggrieved by any finding of the Registrar u/s. 6, may institute a suit in a civil court to have such finding set aside or modified. Under Sub Section (2) of Section 8, in every such suit, the civil court shall give notice to the State Government. Under Sub Section (3) of Section 8, on final decision of the suit, the Registrar shall, if necessary, correct the entries made in the register in accordance with such decision. Section 4, 5, 6, 7 and 8 of the Act of 1951 are reproduced below :
"4. Registration of public trusts. - (1) Within three months from the date on which this section comes into force in any area or from the date on which a public trust is created, whichever is later, the working trustee of every public trust shall, apply to the Registrar having jurisdiction for the registration of the public trust.
(2) Such application shall be accompanied by such fees, if any, not exceeding five rupees as may be prescribed.
(3) The application shall be in such form as may be prescribed and shall among other things contain the following particulars, namely,-
(i) the origin, nature and object of the public trust;
(ii) the place where the principal office or the principal place of business of the public trust is situate;
(iii) the names and addresses of the working trustee and the manager;
(iv) the mode of succession to the office of the trustees;
(v) the list of the movable and immovable trust property in the [State] and such description and particulars as may be sufficient for the identification thereof;
(vi) the approximate value of the movable and immovable property;
(vii) the income derived from movable and immovable property and from any other source, if any, based on the gross annual income during the three years immediately preceding the date on which the application is made or of the period which has lapsed since the creation of trust whichever period THE HIGH COURT OF MADHYA PRADESH W.P. No. 14746/2018 5 Shri Jain Shwetamber Ajeetnath Ji Mandir Trust V/s. The Registrar, Public Trust & others.
is shorter and in the case of a newly created public trust the estimated income from such sources;
(viii) amount of the average annual expenditure in connection with such public trust estimated on the expenditure incurred within the period to which the particulars under clause (vi) relate;
(ix) the address to which any communication to the working trustee or manager in connection with the public trust may be sent; and
(x) such other particulars as may be prescribed:
Provided that the rules may provide that in the case of any or all public trusts it shall not be necessary to give the particulars of the trust property of such value and such kind as may be specified therein.
(4) No Registrar shall proceed with any application for the registration of a public trust in respect of which an application for registration has been filed previously before any other Registrar and the Registrar before whom the application was filed first shall decide which Registrar shall have jurisdiction to register the public trust.
(5) Any appeal against the order of the Registrar under sub-section (4) may be filed within thirty days of the order before such officer as the State Government may, by notification, appoint, and subject to the decision in such appeal the order of the Registrar under sub-section (4) shall be final.
(6) Every application made under sub-section (1) shall be signed and verified in accordance with the manner, laid down in the Code of Civil Procedure, 1908 (V of 1908), for signing and verifying plaints. It shall be accompanied by a copy of an instrument of trust if such instrument had been executed and in existence and where the trust property includes immovable property, about which record is kept, a copy of the entries relating to such property in such record of rights.
5. Inquiry for registration. - (1) On receipt of an application under Section 4 or upon, an application made by any person having interest in a public trust or on his own motion the Registrar shall make an inquiry in the prescribed manner for the purpose of ascertaining, -
(i) whether the trust is a public trust;
(ii) whether any property is the property of such trust;
(iii) whether the whole or any substantial portion of the subject-matter of the trust is situated within his jurisdiction;
(iv) the names and the addresses of the trustees and the manager of such trust;
THE HIGH COURT OF MADHYA PRADESH W.P. No. 14746/2018 6 Shri Jain Shwetamber Ajeetnath Ji Mandir Trust V/s. The Registrar, Public Trust & others.
(v) the mode of succession to the office of the trustee of such trust;
(vi) the origin, nature and object of such trust;
(vii) the amount of gross average annual income and the expenditure of such trust; and
(viii) the correctness or otherwise of any other particulars furnished under sub-section (3) of Section 4.
(2) The Registrar shall give in the prescribed manner public notice of the enquiry proposed to be made under sub- section (1) and invite all persons interested in the public trust under inquiry to prefer objections, if any, in respect of such trust.
6. Findings of the Registrar. - 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.
7. Registrar to make entries in the register. - (1) The Registrar shall cause entries to be made in the register in accordance with the findings recorded by him under Section 6 and shall publish on the notice board of his office the entries made in the register.
(2) The entries so made shall, subject to the provisions of this Act and subject to any change recorded under any provision of this Act or a rule made thereunder, be final and conclusive.
8. Civil suit against the finding of the Registrar. - (1) Any working trustee or person having interest in a public trust or any property found to be trust property, 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.
(2) In every such suit, the Civil Court shall give notice to the State Government through the Registrar, and the State Government, if it so desires, shall be made a party to the suit.
(3) On the final decision of the suit, the Registrar shall, if necessary, correct the entries made in the register in accordance with such decision.
11. In the present case, the petitioner filed an application u/s. 9 of the Act of 1951 seeking entry of certain properties in the register. Under Sub Section (2) of Section 9, on receipt of such THE HIGH COURT OF MADHYA PRADESH W.P. No. 14746/2018 7 Shri Jain Shwetamber Ajeetnath Ji Mandir Trust V/s. The Registrar, Public Trust & others.
report and after making such enquiry as the Registrar may consider necessary, he shall record a finding with the reasons therefor and subject to the provisions contained in sub-section (3). As per Sub Section (3) of Section 9, the provisions of Section 8 shall apply to any finding under this Section as they apply to a finding u/s. 6. Section 9 of the Act of 1951 is reproduced below :
"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 in such entries in the interest of the administration of the such 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 enquiry' as the Registrar may consider necessary, the Registrar is satisfied that a change has occurred or is necessary in any of the entries recorded in the register in regard to a particular public trust, he shall record a finding with the reason therefor and subject to the provisions contained in sub-section (3) amend the entries in the said register in accordance with such finding.
(3) The provisions of Section 8 shall apply to any finding under this section as they apply to a finding under Section 6."
12. In view of the above, any finding recorded u/s. 6 are liable to be challenged u/s. 8 by way of a civil suit. Likewise, the finding recorded u/s. 9 are also liable to be challenged by way of civil suit u/s. 8 by virtue of Sub Section (3) of Section 9. In the present case, the Registrar has recorded the finding that the land bearing Survey No.18 is a Government land and the same cannot be recorded in the register as a property of the petitioner Trust. Since the petitioner Trust is aggrieved by the aforesaid finding, therefore, the working trustees of the Trust are liable to challenge the said THE HIGH COURT OF MADHYA PRADESH W.P. No. 14746/2018 8 Shri Jain Shwetamber Ajeetnath Ji Mandir Trust V/s. The Registrar, Public Trust & others.
finding before the civil Court by way of a suit u/s. 8 of the Act of 1951.
13. In case of Hasan Nurani Malak V/s. S.M. Ismail : (SC) 1967 MPLJ 118, the apex Court has held that the cause of action for such a suit is the finding of the Registrar and not the entry. Para 4 of the aforesaid judgment is reproduced below :
"4. It is clear from the provisions of section 8 that though the entries made by the Registrar are final and conclusive that finality is subject to the decision of the Court in a suit challenging the findings of the Registrar. The cause of action for such a suit is thus the finding of the Registrar and not the entry. It is manifest that section 7 requires the making of the entry and its notification in order that the findings given by the Registrar are recorded and are given publicity so that an aggrieved party whether he is a working trustee or a person interested in the trust may file a suit within the prescribed time."
14. In case of Mahant Ramlaladas V/s. Registrar of Public Trusts : 1962 MPLJ SN 41, the Division Bench of this Court has held that an aggrieved party can seek his remedy of a suit u/s. 8 of the Act of 1951. Relevant paragraph of the aforesaid judgment is reproduced below :
"It is clear from the provisions of sections 5, 6 and 7 of the Act read together that the Registrar has to make an enquiry about all the matters mentioned in sub-section (v) of section 5 and to record his findings with reasons therefor on all these matters. Thereafter he has to cause entries to be made in the Register in accordance with the findings recorded by him and he must also publish on the notice board of his office the entries so made. These requirements are mandatory because when they are fully complied with, an THE HIGH COURT OF MADHYA PRADESH W.P. No. 14746/2018 9 Shri Jain Shwetamber Ajeetnath Ji Mandir Trust V/s. The Registrar, Public Trust & others.
aggrieved party can seek his remedy of a suit under section 8 of the Act."
15. In the case of Rajkumari V/s. State of M.P. : 1993 MPLJ 465, this Court has held that, whether the trust is a public trust and whether any property is the property of the public trust are subject matters of inquiry before a statutory authority. It is only when findings have been recorded by the Registrar, anyone aggrieved has the remedy of instituting a civil suit under section 8 of the Act. Para 6 of the aforesaid judgment is reproduced below :
"6. It is thus clear that whether the trust is a public trust and whether any property is the property of the public trust are subject-matters of inquiry before a statutory authority. That authority does have exclusive jurisdiction, though summary in nature, to adjudicate upon the points contemplated by section 5 of the Act. It is only when findings have been recorded by the Registrar anyone aggrieved has the remedy of instituting a civil suit under section 8 of the Act."
16. In view of the above, in the considered opinion of this Court, the present writ petition is not maintainable against the order passed by the Registrar u/s. 9 of the Act of 1951. The petitioner is having remedy to file the civil suit u/s. 8 of the Act of 1951.
17. Accordingly, this petition fails and is hereby dismissed in limine.
No order as to costs.
( VIVEK RUSIA ) JUDGE Alok/- Digitally signed by Alok Gargav Date: 2018.07.13 18:05:39 +05'30'