Shri Ramjanki Mandir vs State of M.P. and another

SB: Hon''ble Shri Justice Sujoy Paul

The brief facts necessary for adjudication of this matter are as under:

The petitioner is aggrieved by order dated 27.10.2005 (Annexure P-1), where by the registration of Trust dated 17.8.1999 (Annexure P-3) was cancelled. Shri Anil Mishra, learned counsel for the petitioner submits that the order Annexure P-1 is bad in law and cannot sustain if tested on the anvil of M.P. Public Trust Act, 1951 (hereinafter called as the Act). To assail Annexure P-1, Shri Anil Mishra has raised following points:

(1) The complainants who preferred the complaint Annexure P-4 dated 21.9.2005 were tenants and not aggrieved persons.

(2) The Registrar has no authority and jurisdiction to review or cancel his own order passed on 17.8.1991 registering the trust.

(3) As per Section 8, once the entry is made in the register, it can be altered or cancelled only by Civil Court and not by the Registrar.

(4) No opportunity of hearing is given to the petitioner before passing Annexure P-1.

To elaborate, the learned counsel for the petitioner submits that the order dated 17.8.1999 itself shows that it was issued strictly in consonance with the provisions of the said Act. He submits that a notification was issued in the M.P. Gazette dated 15.1.1999 and thereafter an enquiry as envisaged u/s 5 of the said Act was conducted and in absence of any objection by aggrieved persons, the Trust was duly registered by the competent authority on 17.8.1999. The learned counsel for the petitioner further submits that the methodology to correct the entry is specifically mentioned in Section 8 and 9 of the said Act. In fact, the learned counsel submits that if something is provided under the Act to be done in a particular manner, it has to be done in the same manner or not at all. The learned counsel further submits that the persons who are intervenors/complainants have no locus to raise their eye brows against Anenxure P-3. The said persons are tenants and did not raise any complaint when the proceedings were going on before registering the Trust. He submits that once the Trust is registered, the said persons cannot invoke Section 5 or any other provision to get the registration set aside. The learned counsel submits that the note sheets filed with the intervention application dated 19.9.2005 and 17.10.2005 clearly show that on the first date the record was summoned from the Court below by the Registrar and on the next date the finding was recorded that the notices were affixed on Shri Ramjanki Mandir Trust and, therefore, he presumed service of notice and decided the matter. The learned counsel submits that as per Section 28, 29 and 30 of the said Act, the provisions of C.P.C. are applicable and, therefore, first ordinary notices should have been issued followed by registered notices, then only the provision of "chaspa"/affixing should have been applied. He submits that there is no material to show that notice was served to the petitioner and, therefore, cancelling the registration of the Trust is illegal and unsustainable.

Per contra, Shri Anand Bharadwaj, learned counsel for the intervenor submits that the petitioner has not approached this Court with clean hands against the impugned order Annexure P-1. The petitioner filed an application under Order 47 Rule 1 C.P.C. which is filed with the State Government''s return as Annexure R-1. The petitioner has suppressed this fact in the petition and, therefore, in view of judgment reported in Rajaram Patel Vs. State of M.P. and Others, the petitioner is not entitled to get any relief on this score alone. Shri Bharadwaj further submits that the order sheets Annexure R/3-2 shows that no enquiry as required under Sction 5 of the Act was, infact, conducted by the Registrar and in a mechanical manner he registered the said Trust. He submits that survey No.2522 and 2524 are shown as road and Kabristan respectively but it is included in the Trust without applying the mind and without conducting any enquiry, the Trust was registered.

Shri Bharadwaj further submits that it is settled in law that if an order is obtained by fraud or misrepresentation same authority can recall that order despite non availability of an enabling provision. This inherent power is vested with every authority and the Courts to recall an order which is obtained by fraud or misrepresentation.

On the strength of this, Shri Bharadwaj submits that the arguments of petitioner is like a house of cards wherein the petitioner submits that once the Trust is registered, the Registrar has no power to cancel the said registration and the only power is vested with the Civil Court. He submits that the aforesaid judgment of Apex Court clearly lays down the law that the order can very well be recalled by the Registrar itself. Shri Bharadwaj further submits that as per Section 9, it is for the petitioner to approach the Civil Court to get the entry in order. He relied on Shri Ramjanki Mandir Trust and Another Vs. State of Madhya Pradesh and Others, which is reproduced as under:

According to Section 26(1), "If the Registrar on the application of any person interested in the public trust or otherwise is satisfied" in respect to matters enumerated in Clauses (a), (b) and (c) thereof, "he may after giving the working trustee an opportunity to be heard, direct such trustee to apply to court for directions within the time specified by the Registrar". As per sub-Section (2), if no application is made by the Trustee, as directed, and the Registrar himself "considers it expedient to do so", he can make such an application to the Court. What is to be noted importantly is the scope of jurisdiction of the Registrar to act u/s 26 as that is circumscribed by twin requirements. Firstly, there has to be an application for him to act thereunder made by any person "interested in the public trust" and in the absence of such an application, he has to be "satisfied" himself about matters in respect of which grievance can be made in the application, as enumerated in Clauses (a), (b) and (c). Obviously, according to those Clauses, action u/s 26 can be taken when the complaint is that the object of the public trust has failed or that the trust property is not being properly managed or administered or that direction of the Court is necessary for administration of the public trust. It is true, according to Section 27(2), the Civil Court is vested with the jurisdiction, inter alia, of removing any Trustee or appointing a new Trustee. But, that power can only be exercised when the Civil Court is able to take seisin of the matter on reference being made to it by the Registrar u/s 26 of the Act. We have not doubt that the provisions of Sections 26 and 27 are not in derogation of other provisions of the Act to which we shall presently refer. These provisions, in our opinion, do not impinge on the competence of the Registrar to act otherwise, in accordance with Section 9 of the Act. Truly speaking, the special provisions of the Act being in derogation of the general provisions contained in Section 92 of the Code of Civil Procedure, the primacy of the other provisions of the Act vesting jurisdiction under the Act in the Registrar to make any change in the constitution of the Trust, in our opinion, can be overlooked and ignored only at the risk of incurring the disapproval of Legislature and acting without jurisdiction. Sections 26 and 27 operate only when there is a validly constituted "public trust" under the Act and the Registrar is satisfied that the trust has become non-functional or that the trust property is not properly managed or administered so that for those matters, Civil Court''s direction is necessary as, in regard to those matters, he is unable to act under the other provisions of the Act. He cannot act under other provisions, when jurisdiction was exercised by him validly under Ss. 5, 6 and 7 (infra).

Reliance by Shri Tomar on decisions cited may be tested now. In Phoolchand Jain and Others Vs. Registrar, Public Trusts, Satna, M.P. and Others, , what is held is that when the trust-deed does not provide for automatic termination of office on completion of term of trustees, the Registrar cannot remove the existing trustees and nominate new trustees in their place though that power can still be exercised by the Civil Court u/s 25(3) of the Act. In the case of Sheoprasad Dubey, 1972 Jab LJ (SN) 6 Page 5(2), the lis, similarly, was of a different complexion. It was held that the Registrar had no jurisdiction to make even "interim management" when action had already been taken by him u/s 26(1) of the Act and decision was taken for referring the matter to the Civil Court. If Mahant Narayandas, 1962 MPLJ (SN) 97 Page 46(1) serves any useful purpose, it supports the view taken by us. It was held that Registrar had power u/s 9 to direct changes to be made in the register maintained under the Act in respect to the office of Sarbarahkar. In that case, one part of the Registrar''s order was held illegal because he had made a further direction for property belonging to the temple to be placed in possession of the Sarbarahkar so recorded. It was held that such a direction can always be made by Civil Court acting u/s 26 of the Act. In the case of Dalludas, 1971 Jab LJ (SN) 135 Page 108(1), the view expressed is that Registrar cannot act suo motu u/s 26 to remove an existing trustee because that power can only be exercised thereunder by the Civil Court. Evidently, in that case, there was no application u/s 9 of the Act by the Working Trustee for any change to be made with regard to any entry concerning the Manager which the Registrar had made in that case. As a matter of fact, the trust in that case did not have any "Manager" so recorded in the Register maintained under the Act. The decisions cited by Shri Tomar are evidently distinguishable on facts and indeed, in not a single case, the question which confronts us came up for consideration of the Court. We have already indicated that Registrar''s power to act u/s 9 and of Civil Court to act under Sections 26 and 27 are of different shades and complexions and are mutually exclusive. The Registrar becomes functus officio when a "Public Trust" is validly constituted under the Act in accordance with the provisions of the Act. That, apart, his power to act u/s 9 or for that matter, even u/s 25 to meet exigencies contemplated under those provisions, suffer no derogation on account of the jurisdiction vested in the Civil Court to act in accordance with the provisions of Sections 26 and 27. While Section 9 is wide enough to enable the Registrar to make any change in the entries recorded in the Register "in the interest of administration of a Public Trust". Section 25 specifically provides the Registrar with jurisdiction to make direction to the Working Trustees and also act himself for filling up of interim vacancy in the Board of Trustees in such manner as is not inconsistent to the instrument of the trust or the mode of succession specified in the Register. Those powers are not touched by Sections 26 and 27 as the Act vests in the Registrar jurisdiction in the matter of registration and constitution of a public trust under the Act and empowers him to act in incidental matters to make meaningful his supervision on such institutions.

He also relied on 1962 JLJ SN 95 (Bismilla Vs. Habib) and 1962 JLJ SN 345 (Bhagwandas Vs. Registrar Public Trusts) in this regard.

In turn, Mrs. Nidhi Patankar, learned G.A. submits that there is no illegality or infirmity in the impugned order. Since there was an illegality in registering the said Trust, the authority has rightly exercised its powers and cancelled the said registration. She submits that as per Annexure R-1 and R-3 it is clear that the petitioner has not only suppressed the facts, but the Trust was incorrectly registered and, therefore, corrective measures were rightly taken as per Annexure R-1.

The basic contention of Shri Anil Mishra, learned counsel for the petitioner is that once the trust is registered, the remedy lies elsewhere and the Registrar himself cannot cancel or recall the registration already made. His reliance is basically on Seth Chand Ratan Vs. Pandit Durga Prasad (D) by Lrs. and Others, In Para 10 of the judgment, the Apex Court held as under:

....... Section 8 confers a right upon a person who is aggrieved by any finding of the Registrar recorded u/s 6 to institute a suit in a civil court within six months to have such finding set aside or modified. In view of these provisions, the order passed by the Registrar in Case No. 206, by which it was held that Maheshwari Panchayati Mandir is a public trust and Shri Madan Mohan Mandir and the shops in the precincts thereof were the property of the Trust and were being managed by it, became final and conclusive. The only remedy available to Pandit Kamta Prasad was to institute a civil suit u/s 8 of the Act for setting aside the said finding. In these circumstance, it was not open to the Registrar to entertain a correction application and to record that Shri Madan Mohan Mandir is a private trust of Pandit Kamta Prasad which he did by his order dated 31/12/1956. The High Court was, therefore, wrong in holding that the order dated 07/02/1955 in Case No. 206 was passed on account of clerical mistake.

On the basis of this authority, Shri Mishra submits that the order impugned passed by the Registrar canceling the registration of the Trust is per se illegal. In the case of Seth Chand Ratan (supra), one Pandit Kamta Prasad made a request to the Registrar for changing the entries. The Apex Court held that once the entries are made, it became final and conclusive and the only remedy available to Pandit Kamta Prasad was to institute a civil suit u/s 8 of the Act. However, in United India Insurance Co. Ltd. Vs. Rajendra Singh and Others, the Apex Court held as under:-

Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly-discovered facts amounting to fraud of high decree, cannot be foreclosed in such a situation. No court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim.

(Emphasis Supplied)

The ratio decidendi of this judgment is that in cases of misrepresentation or fraud, the Courts and authorities have an inherent power to recall their own orders.

True it is that in Seth Chand Ratan (supra), the Apex Court has laid down the law by considering the scheme of M.P. Public Trust Act, 1951, however, that was not a case of alleged misrepresentation or fraud by the party. Reverting back to the facts of this case would show the application Annexure-P/4 dated 21/09/2005 is preferred, wherein serious allegations of fraud and misrepresentation were made. It is mentioned in the said application that certain survey numbers are Government land and by misrepresentation and fraud has shown as land of the trust. It is alleged that even land mentioned in the revenue record as "road" and "kabristan" (Grave Yard) is also shows as a trust land. It is further mentioned that the entire trust is formed by family members and relatives by adopting incorrect method. Thus, it is clear that there are serious allegations of fraud and misrepresentation. Accordingly, I am unable to hold even in the cases of fraud and misrepresentation, the authority has no jurisdiction to initiate the proceedings.

For the reasons stated above, the judgment of Supreme Court in Seth Chand Ratan Vs. Pandit Durga Prasad (D) by Lrs. and Others, has no application and the judgment of Apex Court which deals with fraud and misrepresentation will apply here with full force. Thus, the points No. 2 & 3 raised by Shri Mishra are hereby rejected.

Since, the pleadings of interveners that they were only tenants is denied and there is no rebuttal to it, by the petitioner, the point No.1 is also decided against the petitioner. Even otherwise, in case of Government land if such authority has taken cognizance and passed the impugned order, it cannot be interfered with on hyper-technical ground, more so, when the land involved is public/ Government land allegedly of a "kabristan" and "road". So far point No.4 is concerned, I find force in the arguments of Shri Mishra that adequate opportunity of hearing is not given to the petitioner before passing Annexure-P/1. The order sheets dated 29/09/2005 and 17/10/2005 are filed by the interveners as Annexure-I/A, a perusal of the proceedings aforesaid show that on the first date i.e. on 29/09/2005, the record was summoned. On 17/10/2005, it is recorded that notices were affixed on the trust and then authority proceeded exparte and passed the final order on 27/10/2005. This shows that no notices by ordinary or registered post were ever issued. No efforts of publication, dasti service or other modes of service were adopted. The affidavits of Process Server, who allegedly affixed the notice is also not taken on record. Thus, there is no conclusive material to show that petitioners were severed with the notices of the proceedings in question. In the result, I have no hesitation to hold that the impugned order Annexure-P/1 is passed without affording opportunity to the petitioner. For this reason, the order dated 27/10/2005 is quashed and set aside. The matter is remitted back to the Registrar, Public Trust to proceed further. Since, parties are represented before this Court, they are directed to remain present before the Registrar on 15/12/2011. After hearing and giving adequate opportunity to the petitioners, the said authority will proceed further and decide the matter in accordance with law. It be noted that this Court has not expressed any opinion on the merits of the case. The Government Advocate is directed to furnish a copy of this order forthwith to the said Registrar to enable him to initiate the proceedings from the date mentioned above.

With the aforesaid, petition stands disposed of.