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Madhya Pradesh High Court · body

2011 DIGILAW 759 (MP)

Ashok Kumar Panchratan v. Registrar, Public Trust

2011-07-12

RAJENDRA MENON

body2011
JUDGMENT : The dispute in question pertains to the handing over of charge on the post of President of the Trust in question and the petitioner and respondent no. 2 are making rival contentions. It is the case of the petitioner that on 25-02-2010 on the directions of the respondent No.1 one B.B.Singh, Naib Tehsldar, Nazul City Circle, Bhopal conducted the process of handing over and taking over of charge vide Annexure P-3 and in this process respondent Pankaj Jain was also present the charge was given and communication of Pankaj Jain in this regard is Annexure P-4 dated 25-02-2010. Thereafter records indicate that various proceedings were held not only before the Registrar, Public Trust but also before the District Court at Bhopal and before this court and finally orders were passed by the Registrar, Public Trust, directing for handing over of charge by the petitioner to the respondent no.2. However, on the ground that the petitioner despite of these directions is not handing over charge and is keeping the keys and other valuable of the Trust, application was filed before the Registrar and on the ground that the petitioner is avoiding appearance before the Registrar and is not complying with the order of the Registrar, the impugned action is taken., The respondent no.2 has filed detailed a reply and during the course of hearing of the writ petition, Shri Kishore Shrivastava, learned Senior Advocate, took me through the various documents available on record, particularly the manner in which the petitioner has tried to avoid handing over of charge. The affidavit filed by the petitioner and certain orders passed by this court in the proceedings on 14-09-2010 to indicate that the conduct of the petitioner disentitles him from claiming any discretionary relief from this Hon'ble Court. It was the case of the respondent no.2 that the petitioner is a person who has come to this court by suppressing material facts and his conduct of non handing over charge inspite the orders passed by the statutory authorities indicate that he is not acting in a legal manner, once he has lost election and therefore, the discretionary jurisdiction of this Hon'ble Court under Article 226 of the Constitution of India should not be exercised in favour of such person. Placing reliance on judgments of the Supreme Court in the cases of K.D.Sharma Vs. Placing reliance on judgments of the Supreme Court in the cases of K.D.Sharma Vs. Steel Authority of India Ltd. and others, (2008)12 SCC 481, Dalip Singh Vs. State of Uttar Pradesh and others (2010) 2 SCC 114 and 1996(1) SCC 435 (State of Kerala Vs. M.K.Kunhikannan Nambiar Manjeri Manikoth, Naduvil (Dead) and others) Even though in the order impugned the section is mentioned as Section 28 sub section 10(3) but in the return filed by the respondent no.2 it is stated that he has exercised the powers under Section 28 read with Order 16 Rule 10(3). As far as Section 28 is concerned, it empowers Registrar holding inquiry under the Act to exercise some powers as are vested in a court for the purpose of requiring proof of facts by affidavits, summoning and enforcing attendanpe of any person and examining him on oath, compelling the production of documents and issuing of commissions. In the present case admittedly the powers exercised by the Registrar was not in any proceedings pending before him under the M.P. Public Trust Act. The proceedings were already concluded and it was the case where the direction issued by the Registrar, Public Trust was not being complied with by the petitioner. According to the petitioner he had complied with the direction but as he was not responding to the notice of Registrar, the impugned action is taken. Be that as it may be the power conferred under section 28 can be exercised by the Registrar only if any proceeding was pending before him. For the purpose of complying with the directions aeulready issued, the provisions of section 28 cannot be made use of. The open words of that section clearly indicate that it is applicable when the Registrar is holding an inquiry under the Act. In the present case, non bailable warrant of arrest is issued even though no inquiry under the Act was pending. That apart non bailable warrant of arrest can be issued only if the person to whom summon was issued and whose attendance was required for the purpose of examining him on oath was not appearing or has not produced some document. In the present case neither any inquiry was pending in which the petitioner's attendance was required nor he was required to produce any document in the pending proceedings. In the present case neither any inquiry was pending in which the petitioner's attendance was required nor he was required to produce any document in the pending proceedings. If the petitioner was not complying with the directions of giving charge of the trust inspite of the orders passed, the Registrar could have initiated proceedings against him for breach of orders and contempt by making a reference in this regard under the Contempt of Court Act or the aggrieved person of the trust through the Registrar could make complaint and initiate proceedings under the common law for the act of the petitioner in not handing over the charge. The act of the petitioner may amount to usurping power of the trust without any authority, the act of the petitioner may be a criminal offence or civil offence but for compelling the petitioner to hand over charge only such proceedings can be initiated as is permissible under law., Issuance of non bailable of arrest has the effect of violating the Fundamental right to life and liberty of a person and the Registrar or any other statutory authority can exercise these powers only if the statutory provisions so permit. No provision, statutory in nature is brought to the notice of this court on the basis of which the Registrar is empowered to issue non bailable warrant of arrest for production of a person before him, the only provision is contemplated under sub section a, b, c & d of section 28 and in the present case none of these provision are applicable. That being so it is a case where the fundamental right to life and liberty of the petitioner is taken away by directing for his arrest and restraining his movement by the authority who is not empowered under law to so. Having held so the question canvassed by Shri Kishore Shrivastave with regard to entitlement of the petitioner to seek discretionary and equity relief from this court has to be taken note. Admittedly, the petitioner has lost the election and should have gracefully handed over charge of the trust and its property to the newly elected president. Having held so the question canvassed by Shri Kishore Shrivastave with regard to entitlement of the petitioner to seek discretionary and equity relief from this court has to be taken note. Admittedly, the petitioner has lost the election and should have gracefully handed over charge of the trust and its property to the newly elected president. Even though Shri R.N.Singh learned Senior Counsel for the petitioner by referring to certain documents particularly the panchanama Annexure P-4 and the order of the Registrar, Public Trust dated 25-03-2010 tried to emphasize that the petitioner had handed over charge to respondent no.2 Pankaj Jain, the proceedings of this court which was held on 14-09-2010 indicate that the petitioner was directed to clarify as to how and in what manner the entire charge of the temples coming under the trust, the Daan Petis, the keys of the store and the keys of other properties were handed over. Even though the petitioner was directed to file affidavit, the petitioner has filed contradictory affidavits and the same are vague and it is still not clear as to whether he has in fact handed over the entire charge or not. That being so if the charge is not being handed over by the petitioner, this court having taken note of these facts cannot permit the petitioner to get a way and enjoy the properties of the trust in an illegal manner. Under such circumstances, it is a fit case where prima facie on being satisfied that the petitioner may not have handed over charge of the trust property, consequential direction can be given by this Court by exercising suo motu power under Article 226 of the Constitution of India so as to do complete justice to all concerned and to uphold the rule of law. Accordingly, even though this court finds that the order impugned passed by the Registrar, Public Trust is wholly unsustainable and cannot be upheld and even though the petition to the extent of quashing the aforesaid order is allowed, the following directions are required to be issued in the facts and circumstances of the case to protect the interest of justice, to uphold the rule of law and to resolve the dispute. Accordingly, respondent no.2 is granted liberty to file a certified copy of this order alongwith detailed compliant/representation to the Superintendent of Police Bhopal giving particulars of the property of the trust and other documents and records etc. which according to the said respondent is still with the petitioner. On the same being done, the Superintendent of Police, Bhopal shall appoint a senior police official working under him to conduct an inquiry into the matter and after holding such procedure that may be permissible under law shall ensure that the charge of the entire trust (i.e. all the property, record and documents etc.) is handed over to the office bearers of the trust and if on such inquiry it is found that the petitioner or any of his associates has illegally retained the trust property and such act of the petitioner or his associates amounts to a criminal offence the Superintendent of Police shall register criminal case against the petitioner or any other person found responsible and prosecute the petitioner for the same in accordance with law. The Registrar, Public Trust is also granted liberty to take note of the activities of the petitioner and in case it is found that the petitioner has disobeyed the lawful order passed by the Registrar, Public Trust in the discharge of his statutory quasi judicial function, as per the M.P. Public Trust Act, the Registrar, Public Trust is granted liberty to initiate proceedings for contempt against the petitioner under the Contempt of Courts Act by making reference in this regard to the appropriate court.