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2013 DIGILAW 1119 (MP)

Shri Digamber Jain Neminath Jinalaya Trust, Chhattarpur v. Shri 1008 Choudhary Digamber Jain Mandir Trust, Chhattarpur

2013-09-16

K.K.LAHOTI, SUBHASH KAKADE

body2013
ORDER Lahoti, Ag. C.J. -- 1. An important question of law has been placed for our consideration in this appeal that a subsequent application filed for registration of the Public Trust, during the pendency of the earlier application, under section 4 of the Madhya Pradesh Public Trusts Act, whether it can be entertained or decided by the same Registrar, Public Trusts Act along with the earlier application or it should be kept pending till the decision on the earlier application, in the light of sub-section (4) of section 4 of the M.P. Public Trusts Act, 1951 (hereinafter referred to as ‘the Act’). 2. The facts of the case are that the appellant Komal Chand Jain had filed an application for registration of the appellant Trust namely Digamber Jain Neminath Jinalaya Trust, Chhatarpur under section 4 of the Act. The aforesaid Trust relates to certain properties situated at Chhatarpur along with Jain Temple. (a) The application filed by the appellant was to the effect that a Trust be registered in the name of Shri Digamber Jain neminath Jinalaya Trust, Chhatarpur. The application was filed before the Registrar, Public Trust for which powers were delegated to him, at the relevant time, by the Collector, Chhatarpur. The Sub-Divisional Officer-cum-Registrar, Public Trusts, vide order dated 19.7.2002 directed for registration of the Public Trust. Against this order, respondent No.1 Sukumaal Jain had filed a civil suit before the District Judge, Chhatarpur which was registered as Civil Suit No.45-A/2006. Vide judgment and decree dated 20.5.2006, the suit was dismissed. A first appeal bearing No.576/2006 was filed before the High Court. Vide judgment and decree dated 14.5.2011, the appeal was allowed and the order of District Judge was set aside. The suit was decreed, the order of Registrar registering the Trust dated 19.7.2002 was set aside, the matter was remanded to the Registrar, Public Trusts, Chhatarpur directing him to proceed in the matter under section 5 of the Act and to decide the application afresh, in accordance with law. (b) When the appellant’s application was pending, respondent No.1 claiming himself to the working trustee of Shri 1008 Choudhary Digambar Jain Mandir Trust, Chhatarpur filed another application for registration of a Public Trust in respect of the same property, for which the earlier application filed by appellant, was pending. (c) Both the applications were filed and pending before the same Sub-Divisional Officer-cum-Registrar, Public Trust, Chhatarpur. (c) Both the applications were filed and pending before the same Sub-Divisional Officer-cum-Registrar, Public Trust, Chhatarpur. The Registrar had entertained the subsequent application and issued a public notice as is required under sub-section (2) of section 5 of the Act for inviting objections. The appellant had filed a revision before the Collector against entertaining the application filed by the respondent No.1 on the ground that in view of sub-section (4) of section 4 of the Act, the application filed by the respondent No.1, could not be entertained or proceeded with and, therefore, it should be dismissed. (d) The Collector, Chhatarpur exercising the powers of revision, by order dated 31.1.2012 held that in view of sub-section (4) of section 4 of the Act, the second application filed by the respondent No.1 was not maintainable, directed that the proceedings in the said application cannot be continued and the order of Sub-Divisional Officer was set aside. (e) Against the order of the Collector dated 31.1.2012, the respondent No.1 had filed a writ petition before the Single Bench, who by impugned order dated 7.2.2013, in Writ Petition No.18169/2012 disposed of the writ petition. The relevant operative part of the order reads thus : “In the present case the original application filed by the respondents was at an earlier point of time and the subsequent application which was filed by the petitioner herein is after remand by the High Court in the First Appeal No.576/2006. Therefore, factually the application filed by the respondents was pending before the Registrar of Trust and it is only after a period of more than 8 years that the petitioner herein filed the application. It is also a common ground that both the applications are pending before the same authority namely the Sub-Divisional Officer/Registrar, Public Trust, Chhatarpur. If the mandate of sub-section (4) of section 4 as reproduced herein above is taken note of, it provides that no Registrar shall proceed with an application for registration of a Trust in respect of which an application for registration has been filed previously before any other Registrar and the Registrar before whom the first application was filed shall decide the same. The words “any other Registrar” and the “Registrar before whom the application was filed first” clearly goes to show that the intention of the lelgislature was to avoid multiple applications being filed before various authorities. The words “any other Registrar” and the “Registrar before whom the application was filed first” clearly goes to show that the intention of the lelgislature was to avoid multiple applications being filed before various authorities. What is prohibited under sub-section (4) is filing of application for registration of Trust before two different Registrars. It does not contemplate a provision where the applications are filed before the same authority namely the same Registrar. It is therefore clear from a plain reading of sub-section (4) that the prohibition under this section is with regard to filing of different applications before different Registrars and if the applications are pending before the same Registrar, proceedings in the enquiry before the authority can be proceeded with. If that is the meaning of the statutory provision, the objection of Shri R.P. Agrawal, learned senior counsel has much force and it is a case where Collector has committed material and grave error in holding that the application filed by the petitioner was not maintainable in view of sub-section (4) of section 4. This finding recorded by the Collector is contrary to law and is unsustainable. If an order passed by a authority is found to be wholly unsustainable being contrary to lalw and if by virtue of the rights available to the parties the parties can again file writ petition before this Court, I am of the considered view that by dismissing the writ petition no useful purpose would be served because on the same ground Sukumaal Jain and any other person can again file petition and entire exercise as already undertaken will have be dealt with by this Court again and the final result will be the same. Accordingly, exercising the powers available to this Court under Article 226 of the Constitution and with a view to do full and substantial justice to the parties and to bring a finality to the legal question involved, it is held that without going into the technicalities as raised by Shri Anubhav Jain, that the order passed by the Collector and the Sub-Division Officer holding that the application filed by the petitioner is not maintainable by virtue of sub-section (4) of section 4 is not proper. It is an illegal order and, therefore, the same is quashed. It is an illegal order and, therefore, the same is quashed. However, the Registrar, Public Trust before whom the applications are pending is directed to proceed in the matter after taking note of the objections of respondent No.1 with regard to the mala fides of the petitioner in filing the application after more than a particular period of time and after taking note of all the objections as may be raised by the parties, the appliation be decided in accordance with law within a reasonable time.” This order is under challenge in this appeal. 3. Learned counsel for the appellant has submitted that in view of sub-section (4) of section 4 of the Act such second application cannot be entertained until and unless the first application for registration is finally decided by the Registrar, Public Trust and in this regard the order passed by the writ Court is contrary to law. 4. The respondent No.1 has supported the order. It was submitted by him that the application preferred by the respondent No.1 was an application under section 4 of the Act and sub-section (4) was not applicable as it relates to the different Registrars before whom the separate application for registration of the Public Trust was pending. That the order passed by the Registrar, entertaining the application could not have been challenged before the Collector as there is no provision of revision in the matter and only an appeal could have been filed under sub-section (5) of section 4 of the Act before the specified officer as the State Government may by notification appoints. It is also submitted that the order passed by the writ Court is in accordance with the law and this appeal may be dismissed. 5. To appreciate the rival contentions of the parties, it would be appropriate, if sections 4, 5 and 6 of the Act may be referred, thus : “4. Registration of Public Trusts. -- (1) Within three months from the date of which this section comes into force in any area or from the date on which a public trust is created, which never is later, the working trustee of every public trust shall apply to the Registrar having jurisdiction for the registration of the public trust. (2) Such application shall be accompanied by such fees, if any, not exceeding five rupees as may be prescribed. (2) Such application shall be accompanied by such fees, if any, not exceeding five rupees as may be prescribed. (3) The application shall be in such form as may be prescribed and shall among other things contain the following particulars, namely: (i) The origin, nature and object of the public trust; (ii) The place where the principal office or the principal place of business of the public trust is situated; (iii) The names and address of the working trustee and the Manager; (iv) The mode of succession to the officer of the trustee; (v) The list of movable and immovable trust property in the (State) and such description and particulars as may be sufficient for the identification thereof; (vi) The approximate value of the movable and immovable property; (vii) The income derived from movable and immovabole property and from any other source, if any, based on the gross annual income during the three years immediately preceding the date on which the application is made or of the period of which has lapsed since the creation of trust whichever period is shorter and in the case of newly created public trust the estimated income from such sources; (viii) Amount of the average annual expenditure in connection with such public trust estimated on the expenditure incurred within the period to which the particulars under clause (vi) relate; (ix) The address to which any communication to the working trustee or Manager in connection with the public trust may be sent; and (x) Such other particulars as may be prescribed : Provided that the rules may provide that in the case of any or all public trusts it shall not be necessary to give the particulars of the trust property of such value and such kind as may be specified therein. (4) No Registrar shall proceed with any application for the registration of a public trust in respect of which an application for registration has been filed previously before any other Registrar and the Registrar before whom the application was filed first shall decide which Registrar shall have jurisdiction register the public trust. (5) An appeal against the order of the Registrar under sub-section (4) maybe filed within thirty days of the order before such officer as the State Government may, by notification, appoint and, subject to the decision in such appeal, the order of the Registrar under sub-section (4) shall be final. (5) An appeal against the order of the Registrar under sub-section (4) maybe filed within thirty days of the order before such officer as the State Government may, by notification, appoint and, subject to the decision in such appeal, the order of the Registrar under sub-section (4) shall be final. (6) Every application made under sub-section (1) shall be signed and verified in accordance with the manner laid down in the Code of Civil Procedure, 1908 (V of 1908), for signing and verifying plaints. It shall be accompanied by a copy of an instrument of trust if such instrument had been executed and in existence and where the trust property includes immovable propery, about which record is kept, a copy of the entires relating to such property in such record of rights. 5. Inquiry for registration. -- (1) On receipt of an application under section 4 or upon an application made by any person having interest in a public trust or on his own motion, the Registrar shall make an inquiry in the prescribed manner for the purpose of ascertaining. -- (i) Whether the trust is a public trust; (ii) Whether any property is the property of such trust; (iii) Whether the whole or any substantial portion of the subject-matter of the trust is situated within his jurisdiction; (iv) The names and addresses of the trustee and the Manager of such trust; (v) The mode of succession to the office of the trustee of such trust; (vi) The origin, nature and object of such trust; (vii) The amount of gross average annual income and the expenditure of such trusts; and (viii) The correctness or otherwise of any particulars furnished under sub-section (3) of section 4. (2) The Registrar shall give in the prescribed manner public notice of the enquiry proposed to be made under sub-section (1) of invite all persons interested in the public trust under inquiry to prefer objections, if any, in respect of such trust. 6. Findings of the Registrar. -- On completion of the inquiry provided for under section 5, the Registrar shall record his findings with reasons therefor as to the matters mentioned in the said section.” 6. Section 4 of the Act provides for filing of the application with various particulars as are provided in sub-section (3) of section 4 of the Act. Findings of the Registrar. -- On completion of the inquiry provided for under section 5, the Registrar shall record his findings with reasons therefor as to the matters mentioned in the said section.” 6. Section 4 of the Act provides for filing of the application with various particulars as are provided in sub-section (3) of section 4 of the Act. Sub-section (4) provides that no Registrar shall proceed with any application for the registration of the public trust in respect of which an application for registration has been filed previously before any other Registrar and the Registrar before whom the application was filed first shall decide which Registrar shall have jurisdiction to register the public trust. Meaning thereby that sub-section (4) prohibits for proceeding with a subsequent application by another Registrar and the Registrar before whom first application is pending would hear and decide which Registrar has jurisdiction to register the public trust. Meaning thereby, any subsequent application filed before any other Registrar, shall not proceed with and the question in respect of jurisdiction shall be decided by the Registrar before whom first such application was filed. In respect of such decision on the question of jurisdiction, appeal is provided under sub-section (5) of section 4 of the Act. But in the present case, the question is different. The subsequent application was filed by the respondent No.1 for registration of the same properties in the name of another public trust, though after the remand order by the High Court in First Appeal No.576/2006. The High Court in first appeal, while remanding the matter, had directed to hold an inquiry under section 5 of the Act, which provides a complete procedure for an inquiry in a prescribed manner for deciding an application under section 4 of the Act. Apart from the other questions, the question No.1 which is to be decided is whether the Trust is a Public Trust and IVth question, to decide in respect of name and address of the trustees and the Manager of the said Trust. While deciding such question, the Registrar is bound to decide about the fact that which Trust is a Public Trust and who are trustees of the Trust. While deciding such question, the Registrar is bound to decide about the fact that which Trust is a Public Trust and who are trustees of the Trust. The sub-section (2) of section 5 of the Act provides for issuance of public notice of the inquiry to be made under sub-section (1) and invite all persons interested in the public trust under inquiry, to prefer objections, if any, in respect of such trust. Meaning thereby, any person after the public notice, can file objections in respect of correctness of the application before the Registrar, Public Trust and the Registrar is under an obligation to enquire into the matter in respect of objections filed by such person. 7. So far as the contention oif the respondent that the order passed by the Registrar could not have been challenged before the Collector as there is no provision of filing revision against an order under sub-section (4) of section 4 is concerned, the relevant provision sub-section (5) of section 4 specifically provides that against the order of the Registrar under sub-section (4), an appeal can be filed before such authority as the State Government may by notification appoint. In this case, the factual position is that there was no adjudication in respect of the jurisdiction by the Registrar so there was no question of filing of an appeal. Apart from this, there is no provision of filing of revision against such an order, in that circumstances, the Collector, Chhatarpur had erred in entertaining the revision and setting aside the order passed by the respondent No.3. 8. In the present case, it is not in dispute that the application filed by the appellant is pending before the respondent No.3. After the remand by the High Court in First Appeal No.576/2006, the matter is to be adjudciated by respondent No.3 in accordance with the provisions as contained in section 5 of the Act. On issuance of public notice as provided in sub-section (2) of section 5, all the persons interested in the public trust under inquiry, can prefer objections, if any, in respect of such trust. When an objection is filed, the Registrar is bound to decide the matter in accordance with the procedure prescribed in sub-section (1) of section 5 of the Act. 9. When an objection is filed, the Registrar is bound to decide the matter in accordance with the procedure prescribed in sub-section (1) of section 5 of the Act. 9. For arguments sake, if the respondent No.1, in place of filing another application prefers an objection stating the facts that in fact the respondent No.1 is the public trust and the trustees of respondent No.1 are the trustees and the Manager of such trust, then in the light of rival contentions the respondent No.3 is required to hold an inquiry and to record a specific finding about the fact that which is the public trust. The respondent No.3 after holding an inquiry can very well decide the matter that the appellant or respondent who is entitled to be registered and can reject the application of the appellant or the objection of the respondent No.1. Another eventually is that on the objection filed by the respondent No.1, a finding can be recorded that the respondent No.1 is the public trust and the application filed by the appellant can be rejected. In that circumstances, the respondent No.1 would be required to file another application seeking registration of the trust. As soon as the another application is filed, the Registrar, Public Trust is required to again follow the procedure as is envisaged under section 5 of the Act. Meaning thereby, another inquiry in respect of the same subject-matter would be required, which could have been decided in the first round of litigation. To avoid all these, if by way of objection, a prayer is made that in fact the objector is the real trust and is required to be registered as public trust then the Registrar can decide the issue in one proceedings. 10. One more reason is that if the second application is kept pending till the first application is adjudicated then only in case of dismissal of first application, second application can be considered. If the application of respondent No.1 is kept pending claiming registration of public trust of the respondent, then if the first application is allowed, the second application would naturally render infructuous without adjudication. If the application of respondent No.1 is kept pending claiming registration of public trust of the respondent, then if the first application is allowed, the second application would naturally render infructuous without adjudication. If both the applications are decided simultaneously, then it will meet the requirement of section 5 of the Act and after the inquiry the Registrar, Public Trust can decide that which of the applications deserves to be allowed and the trust can be registered as a public trust, including the trustees and Manager of the trust. Apart from this is the respondent files its objection raising the same issue then the Registrar is bound to decide all the issues including the Trust, Trustees and the Manager. Only question would remain whether the respondent can be registered as public trust in the proceedings filed by the appellant or not. Reply is very simple. While deciding the issues, the Registrar is required to decide the issues, which will have binding effect between the parties, subject to challenge in the civil suit under section 8 of the Act. When all the issues are decided then the Registrar can very well direct which Trust is to be registered or who are the trustees and Manager of the Trust. 11. The apex Court in Abdul Karim Khan v. Municipal Committee, Raipur [1965 JLJ 1112 (SC)], held that the only persons who are required to file their objections in responce to a notice issued by the Registrar on receiving an application made under section 4(1), are persons interested in the public trust. It is only persons interested in the public trust, such as beneficiaries or others who claim a right to manage the trust, can file objections and the objections of this character can be considered by the Registrar. 12. The Registrar while considering the application can suo motu direct registration of public trust if after the inquiry the Registrar arrives to a conclusion that the application was not entitled to make the application under section 4. 12. The Registrar while considering the application can suo motu direct registration of public trust if after the inquiry the Registrar arrives to a conclusion that the application was not entitled to make the application under section 4. This question, that the Registrar can suo motu proceed to register the public trust, has been decided by a Division Bench of this Court in Umedi Bhai and others v. Collector Sihore and others [ 1969 JLJ 873 ], in which the Division Bench held thus : “Moreover, under section 5 of the Act the Registrar could suo motu start proceedings for registration of a public trust and if after the enquiry the Registrar comes to the conclusion that the applicant was not entitled to make the application under section 4 but that the facts were such that the Registrar would suo motu proceed to Registrar (sic register) the public trust, he would be entitled to do so. Therefore, the mere objection that the person who had made the application purporting to be under section 4 was not entitled to file the same does not take away the jurisdiction of the Registrar to proceed with the enquiry and to order registration, if necessary.” 13. In the light of the aforesaid, if respondent No.1 had preferred an application for the registration of the public trust, before the same Registrar, before whom earlier application is pending, then such an application can be treated by way of objection as already there is an application pending for the registration of the same trust and while holding an inquiry the Registrar can very well decide that which of the parties, the applicant or the objector is entitled for registration of the public trust. In that circumstances, no further inquiry or the application would be required on behalf of the objector in case the objection is sustained and it is found that the objector is the real trust. 14. In view of the aforesaid, if the respondent No.3 had entertained the application filed by the respondent and had directed to proceed with both the applications simultaneously, the order passed by the respondent No.3 is within jurisdiction. 15. 14. In view of the aforesaid, if the respondent No.3 had entertained the application filed by the respondent and had directed to proceed with both the applications simultaneously, the order passed by the respondent No.3 is within jurisdiction. 15. In view of the aforesaid, we find that the learned Single Judge has rightly considered the matter and with little different reasons, we are of the opinion that the application filed by the respondent No.1 deserves to be inquired into in the same proceedings and it is not necessary for the Registrar to keep the aforesaid application pending. 16. In view of the aforesaid, this appeal is finally disposed of with following directions : 1. The Registrar, Public Trust is directed to decide both the applications simultaneously after hearing both the parties. 2. Appellant herein may submit his objections to the application filed by the respondent No.1 and respondent No.1 may also file its objections to the application filed by appellant or both the parties may submit before the Registrar that their application may be treated as objections to the application filed by the other. 3. The Registrar shall conduct an inquiry under section 5 of the Act and decide the matter finally. Any aggrieved party can challenge the finding of Registrar by filing a civil suit under section 8 of the Act. No order as to costs.