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2002 DIGILAW 619 (MP)

Madanlal Soni v. State Of M. P.

2002-07-03

BHAWANI SINGH, S.L.JAIN

body2002
JUDGMENT : S. L. JAIN, J. Being aggrieved by the order dated 11-4-2002, passed by the learned Single Judge in Writ Petition No. 1443/02, appellants have filed this appeal under Clause 10 of Letters Patent. 2. Facts shorn of details and necessary for disposal of the appeal are that Shri Durga Ustav Committee, Hoshangabad is a registered Public Trust bearing No. 259/55. It was registered as such in the office of the respondent No. 2. Initially Sarvashri Ramlal Sharma, Shriram Lohiya, Dulare Prasad and Narain Prasad Dubey were the trustees of the Trust. Three of them died. Sole surviving trustee Shri Ram Lohiya moved an application in the year 1982 for addition of five trustees. During the pendency of this application, Shriram Lohiya died. Despite the death of the sole surviving trustee, Registrar, Public Trust allowed the application and appointed Sarvashri Kanchedilal Lohiya, Rishiraj Gupta, Kishore Kumar Jarathe, Keshavrao Antarkar and Madanlal Soni as trustees. This order was passed on the assumption that on the date of the order Shriram Lohiya was alive. By this order dated 11-5-1983 the Registrar held that the trustees shall be appointed by election. 3. Challenging the validity of the order of Registrar dated 11-5-1983, Girja Shanker Sharma and Bhawani Shankar filed a Civil Suit No. 3-A/84 before First Civil Judge Class-II, Hoshangabad, which was later on registered as Civil Suit No. 87-A/1989. 4. Girja Shanker Sharma also filed an application before the Registrar, Public Trust on 26-7-1983 to the effect that the order dated 11-5-1983 was illegal and invalid because on the date of the order applicant Shriram Lohiya was not alive and his legal representatives were not brought on record. It was also alleged in this application that the interested persons were not noticed, proclaimation was not issued and the provisions of Section 25 of the M. P. Public Trust Act were not followed. This application was kept pending owing to the pendency of Civil Suit. 5. On 21-1-1999 an application was moved by Girja Shanker Sharma before the Registrar, Public Trust for early hearing of the application on the ground that the civil Suit No. 5-A/88 had been disposed of though in fact, this suit No. 5-A/88 was other than Civil Suit No. 87-A/89 whereby order dated 11-5-1983 was challenged in the civil suit. 6. 5. On 21-1-1999 an application was moved by Girja Shanker Sharma before the Registrar, Public Trust for early hearing of the application on the ground that the civil Suit No. 5-A/88 had been disposed of though in fact, this suit No. 5-A/88 was other than Civil Suit No. 87-A/89 whereby order dated 11-5-1983 was challenged in the civil suit. 6. However, the fact remains that application dated 26-7-1983 filed by Girja Shanker Sharma before the Registrar, Public Trust was allowed by an order dated 3-1-2000 on the grounds that - (i) issuance of the proclamation was doubtful; it was not published on the notice board; and (ii) because of the death of Shriram Lohiya prior to the passing of the order dated 11-5-1983, there was automatic abatement of the proceedings and therefore, order dated 11-5-1983 was illegal and void. 7. This order of Registrar dated 3-1-2000 was challenged before the High Court by filing Writ Petition No. 1443 of 2002, on the ground that the proceedings were stayed vide order Annexure-4 till the disposal of civil suit and before the disposal of the suit application dated 26-7-1983 filed by Girja Shanker Sharma before the Registrar, Public Trust could not have been allowed. 8. Learned single Judge accepted the contention of the petitioners and held that it was not open to the Registrar to review the order dated 11-5-1983 but accepting the contention of respondent No. 3 also held that the order dated 11-5-1983 itself was not passed in the proper manner as the sole surviving trustee Shriram Lohiya was not alive on the date of passing of the order and the fact of death of Shriram Lohiya was not brought to the notice of the Court. It was also held that the proclamation was not properly issued and the order dated 11-5-1983 was passed in the mechanical manner. It was further held that the order of appointment of trustees by election was not envisaged by the document creating the trust. Thus, not only the impugned order dated 3-1-2000 but also the order dated 11-5-1983 was set aside and the Registrar, Public Trust was directed to issue fresh proclamation for appointment of trustees and after hearing the interested persons pass fresh order in the matter of appointment of trustees. Learned Single Judge also directed that the exercise be completed within three months from the date of appearance of parties. Learned Single Judge also directed that the exercise be completed within three months from the date of appearance of parties. It is against this order, the appellants have filed this letters patent appeal. 9. Three points have been urged by Shri Imtiaz Hussain, learned counsel appearing for the appellants. Firstly, that the order dated 11-5-1983 issued by the Registrar, Public Trust was not challenged in writ petition and, therefore, the learned single Judge erred in setting aside the order dated 11-5-1983. Secondly, that the validity of the order dated 11-5-1983 was challenged in civil suit and the appeal, against the judgment and decree passed by the Civil Judge dismissing the suit, was pending. Thus, when the alternative remedy was available and pending it was not open to the learned single Judge to interfere in the matter and the order dated 11-5-1983 could not have been set aside. Thirdly, that the learned single Judge did not see that the appellants were holding charge of the trustees and were performing their duties for about 19 years. 10. We have carefully read the impugned order of the learned Single Judge and perused the record and we feel that the above contentions raised by the learned counsel for the appellants are devoid of merit. 11. With regard to the first contention, the learned Single Judge found that the order dated 11-5-1983 was not a legal order as the same was passed under wrong assumption that Shriram Lohiya was alive, the proclamation was not properly issued, the order was passed in mechanical manner; and the directions regarding appointment of trustees by election was not envisaged in the terms recorded in the register of Public Trusts, therefore, it could not have been restored by allowing the writ petition and as such, the learned single Judge was certainly justified in directing issuance of fresh proclamation for appointment of trustees and passing fresh order in the matter of appointment of trustees. 12. If the order which would have come in force on setting aside the order impugned by the single Judge was violative of principles of justice and fair play and a patent or flagrant error in procedure or law crept in and the order would have resulted in manifest in justice, the learned single Judge was justified in intervening. 13. 12. If the order which would have come in force on setting aside the order impugned by the single Judge was violative of principles of justice and fair play and a patent or flagrant error in procedure or law crept in and the order would have resulted in manifest in justice, the learned single Judge was justified in intervening. 13. Though the order dated 11-5-1983 was not challenged in the writ petition, but the power under Article 227 of the Constitution can be exercised even suo motu. To prevent violation of justice the High Court, while exercising writ jurisdiction, has power to do complete justice. In view of the above, there is no force in the first contention raised by learned counsel for the appellant. 14. The second contention of the learned counsel for the appellant has also to be rejected. Merely because an appeal against the judgment and decree passed in Civil Suit No. 87-A/89 was pending, it was not a reason to deter learned Single Judge from passing the order impugned. When the learned Single Judge came to the conclusion that the order dated 11-5-1983 passed by the Registrar, Public Trust was not legal, merely because an appeal was pending before the subordinate Court, it would not have been fruitful to wait till the decision of the appeal. It would have been futile to relegate the parties to first seek redressal before the appellate Court which would have only resulted in the postponement of the grant of the relief prolonging the continuance of an order which was found to be illegal by the learned single Judge. 15. The High Court, in exercise of its jurisdiction under Article 227 of the Constitution of India can take cognizance of the entire facts and circumstances and pass appropriate orders to give the parties complete and substantial justice. 16. We also do not find any force in the third contention of the learned counsel appearing for the appellants. Merely because the appellants were holding charge of the trustees and had been performing their duties for about 19 years, they cannot support their claim and cannot continue in office, if the order appointing them in the office was found to be illegal. 17. We, therefore, find no merit in this appeal and consequently, the same is dismissed in limine.