Kailashanand vs Rewaram Girdharilal and others

P.V. Dixit, C.J.

This is an application under Article 226 of the Constitution of India for the issue of a writ of certiorari for quashing an order passed by the Registrar of Public Trusts, Hoshangabad, on 18th July 1963 holding that an application hide by the opponents Nos. 1 to 5, u/s 26 of the Madhya Pradesh Public Trusts Act, 1951 (hereinafter referred to as the Act), was maintainable, and fixing a date for a hearing of the submissions of the parties on that application.

The material facts are that in 1952 the Petitioner, claiming himself to be the trustee and manager of "Gokarneshwar Mahadeo" temple situated in Kharkhedi, made an application for registration of the temple as a public trust under the Act. This application was sent by the Registrar to the Sub-Divisional Officer for enquiry and report, but no order of any kind was made thereon after an enquiry in conformity with Sections 5 and 6 of the Act. On 24th August 1"59 the non-applicant8 Nos. 1 to 5 made an application u/s 26 of the Act before the Registrar for removal of the Petitioner from the managership and trusteeship of the temple. This application was sent by the Registrar to the Sub-Divisional Officer for enquiry and report. The Sub-Divisional Officer reported that there was no entry in the register of public trusts as regards the temple in question having been declared and registered as a public trust. When the matter was taken up for hearing by the Registrar on receipt of the report of the Sub-Divisional Officer, the Petitioner raised the objection that the Registrar had no jurisdiction to entertain any application u/s 26 of the Act unless and until the temple was first found a public trust after an enquiry in accordance with Sections 5 and 6 of the Act, and then registered as a public trust under the Act. The Registrar also found that there was no entry in the register of public trusts about the temple having been declared, and registered, as a public trust.

He, however, came to the conclusion that on the report of the Sub-Divisional Officer it was evident that the temple was a public trust, that the non-registration of the temple as a public trust did not alter its character as a public trust, and that the registration of the temple as a public trust was a mere formality which could be completed at any time. After making these observations, he accepted the recommendation of the Sub-Divisional Officer that the temple should be registered as a public trust. On this view the Registrar held that the aforesaid non-applicants'' application u/s 26 of the Act was maintainable.

This application must be granted. It is plain from what has been stated above that on the application, which the Petitioner filed in 1952 for registration of the temple as a public trust, no enquiry at all was held in conformity with Sections 5 and 6 of the Act for determining whether the temple is or is not a public trust and no order of any kind was passed on that application. It has been held by this Court in numerous cases that the provisions contained in Sections 5, 6 and 7 of the Act are mandatory and if the Registrar makes an order with regard to the registration of a trust as a public trust without holding any enquiry u/s 5(1) and without recording any findings with reasons therefor in regard to the matters enumerated therein, then the order declaring the trust to be a public trust is illegal and invalid. See Khemchand v. Registrar of Pub. Trusts 1963 M P L J 196 (MP No. 367 of 1962 decided on the 5th April 1963.), Sunderbai v. D.C. Hoshangabad 1961 M P L J 103 (MP 455/85 decided on the 30th September 1957.), Rewaram v. Registrar, P.T. 1961 M P L J 1081 and Bhaiyalal Godre and Others Vs. Smt. Rajrani and Others, (MP No. 136 /59 decided on the 10th March 1960.). In this case, the Registrar himself has said in the impugned order that no enquiry u/s 5 of the Act was at all held. But his view that the registration of a trust as a public trust is only a procedural formality is clearly contrary to the decisions of this Court referred to above. It is true that when the non-applicants'' application u/s 26 was sent to the Sub-Divisional Officer for enquiry and report, the Sub-Divisional Officer found that it was a public trust and recommended that the trust should be registered as a public trust. But this enquiry was not any enquiry into the question of the registration of the temple as a public trust in conformity with Sections 5, 6 and 7 of the Act. Nor is the statement of the Registrar accepting the recommendation of the Sub-Divisional Officer that the temple should be registered as a public trust a valid order declaring and registering the temple as a public trust in accordance with Sections 5, 6 and 7 of the Act.

If the temple has not been declared as a public trust, and registered as a public trust under the Act, then clearly the Registrar had no jurisdiction to entertain any application u/s 26 of the Act. The scheme of the Act is to regulate and make better provisions for the administration of public religious and charitable trusts in the State of Madhya Pradesh. The Registrar cannot exercise the powers under the provisions contained in Chapters III, IV and v. of the Act in regard to any trust unless and until the trust is first declared to be and registered as a public trust under Chapter II of the Act. It has been held by this Court in Laxmanrao v. Narayanrao 1956 N L J. 121 (MP No. 521 /54 decided on the 18th October 1955.) that Section 26 of the Act gives jurisdiction to the Registrar only if there is a public trust. The enquiry as to whether the trust is a public trust is covered by Section 5 and unless this enquiry is completed and the trust is found to be a public trust, the Registrar''s jurisdiction u/s 26 cannot be invoked. Here, as the temple in question had not been found to be and declared and registered as a public trust under the Act, the Registrar had no jurisdiction to entertain and deal with the application u/s 26 filed by the Respondents Nos. 1 to 5. The order dated 18th July 1963 of the Registrar cannot, therefore, be sustained.

For these reasons, this petition is allowed and the order passed on 18th July 1963 by the Registrar holding that the said non-applicants'' petition u/s 26 of the Act was maintainable is quashed. It is needless to add that as the application filed in 1952 by the Petitioner for registration of the trust still remains undisposed of, the Registrar must enquire into that application and decide it in conformity with Sections 5, 6 and 7 of the Act. The Petitioner''s stand now is that the temple is not a public trust. Whether this position is tenable or untenable can be decided only by the Registrar in an enquiry that may be held u/s 5 of the Act. The Petitioner shall have costs of this application from the Respondents Nos. 1 to 5. Counsel''s fee is fixed at Rs. 75. The outstanding amount of security deposit shall be refunded to the Petitioner.