Mandir Shri Jagannathji Trust vs State of M.P.

Petitioner, a Public Trust under the Madhya Pradesh

Public Trust, 1951 (for brevity ''1951 Act'') being aggrieved by

the order-dated 5.1.2011 and order-dated 31.1.2011 passed

by the Registrar, Public Trust, has filed this petition under

Article 227 of the Constitution of India.

Vide impugned order-dated 5.1.2011, the application

filed by petitioner under Section 14 of 1951 Act seeking

permission to sell 4.60 hectares of land, has been rejected.

Whereas, by order-dated 31.1.2011, the Registrar, Public

Trust has declined to entertain review petition filed by

petitioner seeking review of order-dated 5.1.2011.

Vide said application, petitioner had sought permission

to sell the land admeasuring 4.60 hectares situated at Village

Tikariya to meet out the expenses for construction/

reconstruction of 200 years-old temple which stood in a

dilapidated condition wherefor the cost of construction was

estimated to Rs.29 Lakhs. The application was dismissed by

the Register, Public Trust on a finding that if permission is

granted, the same will be prejudicial to the interest of the

trust and the same is impermissible as per decision of the

State Government vide its Circular No.F-7/11/2007/N%/1432

dated 13.11.2007.

The impugned order-dated 5.1.2011 reveals that the

Registrar on receiving the application for permission to sell the

land had forwarded the same to the Additional Tahsildar and

the Sub-Divisional Officer for causing an enquiry, whereon, the

report was filed by these officers stating therein that the trust

owns 27.930 hectares of land and that resolution was passed

by the trust on 12.1.2010 to sell off 4.60 hectares of land. It

further notes that on enquiry, it was informed by one of the

trustees, viz. Bharat Lal Tiwari that the income from land and

assets of the trust is not sufficient to meet out the expenses of

the construction of the temple in question. It was informed in

an audit report ending on 31.10.2010 that total asset value of

the petitioner-trust was Rs.1246490.48, of which Rs.708322/-

was to be spent on the construction/reconstruction of the

temple. It was urged that only Rs.483817/- remains in the

accounts of the trust and since was not enough to meet out

the cost of construction, the application was filed to sell off

4.60 hectares of land.

The Registrar, Public Trust on the basis of enquiry

caused through Additional Tahsildar and Sub-Divisional Officer

and taking into consideration that there was a ban imposed by

the Government not to permit the sale of agricultural land

attached to the temple, dismissed the application filed by

petitioner vide impugned order dated 5.1.2011.

Review sought thereof was also rejected vide order-

dated 31.1.2011.

As regard to challenge to review order, this Court does

not find any illegality in the conclusions arrived at by the

Registrar, Public Trust that there is no error apparent on the

face of record as would warrant review. Accordingly, the

challenge to order-dated 31.1.2011 is negatived.

As regard to challenge to order-dated 5.1.2011, it is

contended by learned counsel for the petitioner that the

Registrar, Public Trust has mechanically dismissed the

application without appreciating the fact that the trust is

unable to meet out Rs.29 Lakhs for construction/

reconstruction of the temple in question. It is urged that the

Registrar, Public Trust has glossed over the fact that the public

trust is having 27.930 hectares of land and even after sale of

4.60 hectares of land, the trust still remain in possession over

above 23 hectares of land.

On these grounds, the petitioner seeks quashment of

the impugned order.

Respondents-State of M.P. and its functionaries, on their

turn, has to submit that as the land attached to the temple

owned by the Public Trust was set apart for a public service

i.e. for upkeep of the temple, it being not the land said to be

set apart for a special purpose under clause (i) of sub-section

(1) of Section 237 of the Madhya Pradesh Land Revenue

Code, 1959, petitioner was rightly denied the permission to

sell off the same as the land had the character of unoccupied

land being carved out as a service land. The said submission is

on the basis of observations made by the Supreme Court in

Mst. Kanchaniya vs Shiv Ram : Civil Appeal

No.4010/1983 wherein it is held :

"The only question which remains to be considered is whether the application filed by respondent No.1 under Section 248(1) of the Code was maintainable. In 1967, when the application was moved by respondent No.1, Section 248(1) empowered the Tehsildar to summarily eject any person who unauthorisedly takes or remains in possession of any occupied land, abadi, service land or any land which has been set apart for any special purpose under Section 237. The expression ''unoccupied land'' is defined in Section 2 (z-3) of the Code as under : "''unoccupied land means the land in a village other than the Abadi or service land or the land held by a Bhumiswami, a tenant or a Government lessee;" The land in dispute does not fall in any of the excepted categories mentioned in Section 2 (z-3). It must, therefore, be held to be unoccupied land. Since it was set apart for a public purpose viz., for the upkeep of temple, it can be said to be land set apart for a special purpose under clause (i) of sub-

s.(1) of s. 237 of the Code. ..."

It is further contended that though the permission was

sought by the petitioner to sell the land; however, no

instrument of trust or any direction given thereunder or any

other law, was commended at before seeking permission to

sell the same which being the condition as stipulated under

sub-section (1) of Section 14 of 1951 Act, denial of permission

by the Registrar, Public Trust cannot be faulted with.

Considered rival submissions.

Section 14 of 1951 Act envisages :

Previous sanction of Registrar, in cases of sale, etc., of property belonging to a public trust.- (1) Subject to the directions in the instrument of trust or any direction given under this or any other law by any Court- (a) no sale, mortgage, exchange of gift of any immovable property; and (b) no lease for a period exceeding seven years in the case of agricultural land or for a period exceeding three years in the case of non-agricultural land or building; belonging to a public trust, shall be valid without the previous sanction of the Registrar.

(2) The Registrar shall not refuse his sanction in

respect of any transaction specified in sub-section (1) unless such transaction will, in his opinion, be prejudicial to the interests of the public trust."

Thus, under sub-section (1) of Section 14, no sale,

mortgage, exchange of gift of any immovable property and no

lease for a period exceeding seven years in the case of

agricultural land or for a period exceeding three years in the

case of non-agricultural land or building belonging to public

trust, can be effected unless so permitted in the instrument of

trust or any direction given thereunder or any other law. And

even if it satisfies the condition, then also the sale, mortgage,

exchange or lease shall not be valid without the previous

sanction of the Registrar.

Even then, it shall be within the discretion of the

Registrar to refuse the sanction if, in his opinion, it will be

prejudicial to the interests of the public trust. Thus, incumbent

it was upon the petitioner trust to have brought on record the

instrument of trust or any direction given thereunder

empowering the trustee to sell the property in the event to

meet out the expenses for reconstruction of temple; nor any

provision in law was commended at by the petitioner as would

entitle him to sell off the property belonging to the trust.

As the Registrar, Public Trust had relied upon the

Circular of the State Government being No.7-11/2007/ N%/1432

dated 13.11.2007, learned Government Advocate was called

upon to produce the said circular, which has been filed by the

respondents on 10.2.2017 and the same is in the following

terms :

"VERNACULAR MATTER OMITTED"

Though a perusal of the Circular reflects that the same

pertains to encroachment of agricultural land attached to

temple or public trust; however, a close look whereof reveals

that the same is also made applicable in respect of transfer of

land belonging to such temple/public trust. Even if the

submissions made on behalf of petitioner is accepted that the

Registrar, Public Trust has misconstrued the Circular issued by

the State Government as it related only to prevent the

encroachment and transfer to other instruments, then also, it

was incumbent upon the petitioner to have fulfilled the

statutory stipulation contained under sub-section (1) of

Section 14 of 1951 Act which though the Registrar has glossed

over; yet, in the considered opinion of this Court, since the

matter relates to interests of public trust and permission to sell

off the land of the trust has to be adjudged to be non-

prejudicial to the interests of the public trust; in absence of

any such cogent material as would warrant indulgence under

sub-section (1) of Section 14, this Court is not inclined to

interfere with the order passed by the Registrar, Public Trust.

Instead, the petitioner is set at liberty to file fresh

application as per stipulation contained under sub-section (1)

of Section 14 which mandates existence of instrument of trust

having direction therein for sale, mortgage, exchange or

granting lease of the trust property. In case such an

application is filed, Registrar, Public Trust shall consider the

same and pass orders on its own merit within a period of

three months from the date of receiving such application.

The petition is disposed of finally in above terms. No

costs.