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2024 DIGILAW 643 (CHH)

Durga Carriers Pvt. Ltd. v. Dinesh Chandra Khare S/o Shri Virendra Prasad Khare

2024-09-10

RAKESH MOHAN PANDEY

body2024
JUDGMENT RAKESH MOHAN PANDEY, J. 1) In both these civil revisions, common questions of facts and law are involved, therefore, they are heard together and disposed of by this common order. 2) The facts of the case are as under:- (i) Non-applicant No.1/plaintiff i.e. Dinesh Chandra Khare, Special Power of Attorney of S.R.M. Foundation of India, registered Office A-14, Mohan Co-operative Industrial State, Mathura Road, New Delhi filed two Civil Suits bearing C.S. No.51A/2015 and C.S. No.52A/2015 seeking declaration of title, permanent injunction and possession, inter alia on the ground that the land bearing Survey Nos. 16/2 x, 18/2 x, 19/2 x, 20/3 x and 21/1 x, total ad-measuring 2.023 hectares situated at Village - Pangaon, Patwari Halka No.20, Block and Tehsil - Balodabazar, Bhatapara are the exclusive property of S.R.M. Foundation of India but in both the cases, defendant No.1/Shri G. Ramchandra Mohan executed registered sale deeds of the remaining area i.e. 0.250 & 1.773 hectares, respectively, in favour of defendant No.2/Shri A.K. Ratnakar. Defendant No.3/the applicant moved an application under Order 7 Rule 11 of the CPC read with Section 32 of the Chhattisgarh Public Trusts Act, 1951 (for short ’the Act of 1951’) for rejection of plaints on the ground that the suits are barred by the provisions of Section 32 of the Act of 1951 as the plaintiff Foundation squarely falls within the scope and ambit of the provisions contained in the Act of 1951 and it is not registered under the Act of 1951 within the State of Chhattisgarh. Non-applicant No.1/plaintiff filed a reply to the application and specifically stated that the plaintiff Foundation is a Society registered under the Societies Registration Act, XXI of 1860 and therefore, there was no requirement to get registered under the provisions of the Act of 1951. Thereafter, the written statements were filed in both the civil suits. Learned Trial Court vide order dated 29.06.2019 rejected the application moved by the applicant/defendant No.3 in both the suits on the ground that the plaintiff is registered as a Society under the provisions of the Act, 1860. 3) Mr. Bajaj, the learned counsel appearing for the applicant/defendant No. 3 argued that as per Section 32 of the Act of 1951, no suit to enforce a right on behalf of a public trust which has not been registered under this Act shall be heard or decided in any Court. 3) Mr. Bajaj, the learned counsel appearing for the applicant/defendant No. 3 argued that as per Section 32 of the Act of 1951, no suit to enforce a right on behalf of a public trust which has not been registered under this Act shall be heard or decided in any Court. He further argued that the plaintiff has not disputed the fact that it is a society defined under Section 2(4) of the Act of 1951 and comes within the purview of Public Trust. He also argued that the learned Trial Court failed to appreciate the object of Section 32 of the Act of 1951 and in the absence of registration within the State of Chhattisgarh, there would be no control over such society or trust. He submitted that there is a similar provision in the Maharashtra Public Trusts Act, 1950 (for short the ‘Act of 1950’) under Section 31 which creates a bar to hear or decide suits. He further submitted that Section 31(1) of the Act of 1950 says that no suit to enforce a right on behalf of a public trust which has not been registered under this Act shall be heard or decided [in any court]. He referred to the judgment passed by the High Court of Bombay in the matter of Shri Dnyaneshwar Madhuradwait Sampradayik Mandal, Amravati Vs. Charity Commissioner, Bombay and another, 1980 SCC Online Bom 120 wherein the definition of ‘public trust’ was considered and it was held that the “public trust” means an express or constructive trust for either a public, religious or charitable purpose or both and includes a temple, a math, a wakf, church, synagogue, agiary or other places of public religious worship, a dharmada or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the Societies Registration Act, 1860. It is further held that in the case of a society registered under the Societies Registration Act if its object is either religious or charitable or both will itself render such a society a ‘public trust’ within the meaning of the definition. He stated that from a bare perusal of the memorandum of the Association of Plaintiff Society, it is apparent that it is a religious and charitable trust registered as a society. He stated that from a bare perusal of the memorandum of the Association of Plaintiff Society, it is apparent that it is a religious and charitable trust registered as a society. He further contended that as the plaintiff is a society/public trust within the meaning of Section 2 (4) of the Act of 1951 it requires registration as per the Act of 1951 and in the absence of registration, a suit would not be maintainable as per the provisions of Section 32 of the Act of 1951. With regard to Section 36(b) of the Act of 1951, he stated that the Societies Registration Act, 1860 is a Central Act and the same was repealed by the State of Madhya Pradesh in the year 1959. In the year 1973, the Societies Registrikaran Adhiniyam was enacted and the Act of 1959 was again repealed. He argued that the Plaintiff Society is registered under the provisions of the Societies Registration Act of 1860 (Punjab Amendment Act, 1957) as extended to the Union Territory of Delhi on 07.11.1963 whereas the Act of 1860 was repealed in the State of Madhya Pradesh in the year 1959 therefore, the registration of the Plaintiff Society under the Act of 1860 would not make the registration valid within the State of Madhya Pradesh or Chhattisgarh. He further argued that the Hon’ble Division Bench of this Court in the matter of Bhilai Education Trust Vs. Bhilai Steel, AIR Online 2022 CHH 1416 in para 10 held that Section 32 of the Act of 1951 creates a bar to hear or decide suits as it purports that no suit to enforce a right on behalf of a public trust which has not been registered under this Act shall be heard or decided in any Court and in the absence of such certificate, it cannot be said that the suit was properly filed before the Court. 4) With regard to the judgment relied on by the learned counsel appearing for the non-applicant/plaintiff rendered in Shankar Singh Thakur Kishansingh and others Vs. Sanstha Sonabai Sarvakshram, Khurai and others, MANU/MP/0149/1975, he contended that to avail the benefit of Section 36(1)(b) of the Act of 1951, the Public Trust or Society should be registered under any enactment other than the Public Trust Act prevailing in the State of Madhya Pradesh. Sanstha Sonabai Sarvakshram, Khurai and others, MANU/MP/0149/1975, he contended that to avail the benefit of Section 36(1)(b) of the Act of 1951, the Public Trust or Society should be registered under any enactment other than the Public Trust Act prevailing in the State of Madhya Pradesh. He submitted that the law cannot be said to be in force unless it is brought into operation by legislative enactment, or by the exercise of authority by a delegate empowered to bring it into operation. He also argued that though Section 36(1)(b) of the Act of 1951 is undoubtedly a law in force until the power is exercised by the State Government to issue an appropriate notification, the same could not be deemed to be law in force and the provisions of Section 32 of the Act of 1951 cannot be ignored which requires registration under the Act of 1951. Mr. Bajaj referred to Sections 8 & 10 of the General Clauses Act and Section 13 of the Chhattisgarh General Clauses Act. He also submitted that the judgment reported in 1960 JLJ (SN) 41 is a short note and the same does not give the full details of the case. 5) On the other hand, the learned counsels appearing for the Non-applicants would oppose the submissions made by Mr. Bajaj. It is argued that there was no need for registration of Society according to the provisions of the Act of 1951 as the plaintiff society is already registered as per the provisions of the Act of 1860, which is a Central Act and still in force. They referred to Section 36(1)(b) of the Act of 1951 which says that provisions of the Act of 1951 shall not attract if a public trust is administered under any enactment for the time being in force. They further submitted that the property of the plaintiff Society is situated within the State of Chhattisgarh and the plaintiff Society is registered under the provisions of the Society Registration Act, 1860 in Delhi. They argued that the Society which is registered in Delhi and if the properties of the Society are situated in many States, it would not be practicable to get registered in all States. They further argued that the learned Trial Court after taking into consideration the submissions made by defendant No.3/applicant rejected the applications in both the suits. They argued that the Society which is registered in Delhi and if the properties of the Society are situated in many States, it would not be practicable to get registered in all States. They further argued that the learned Trial Court after taking into consideration the submissions made by defendant No.3/applicant rejected the applications in both the suits. With regard to Power of Attorney, they argued that the plaintiff/Mr. Dinesh Chandra Khare is a Power of Attorney holder of SRM Foundation of India and the Power of Attorney was placed on record along with the plaint and this fact is stated in para 11(1) of the plaint. They also argued that the requirement of further registration according to the provisions of the Act of 1951 would make the provisions of Section 36(1)(b) of the Act of 1951 redundant. In support of their submissions, they placed reliance on the judgment passed by the High Court of Madhya Pradesh in the matter of Shankar Singh Thakur Kishansingh (supra), Dinesh Kumar Jaiswal and Others Vs. the Collector, Jabalpur and Ors, MANU/MP/0049/1990, and Prakashveer Sharma and others Vs. Murti Shri Dwarikadheesh Maharaj Virajman Mandir Thakur Dwarikadhieeshji and others, MANU/MP/0974/2023. 6) Heard learned counsel for the parties, considered their rival submissions made herein above and perused the documents placed on the record. 7) Section 31 of the Maharashtra Public Trusts Act, 1950 deals with the Bar to hear or decide suits. It reads as under:- “31. Bar to hear or decide suits- (1) No suit to enforce a right on behalf of a public trust which has not been registered under this Act shall be heard or decided [in any court]. (2) The provisions of sub-section (1) shall apply to a claim of set-off or other proceeding to enforce a right on behalf of such public trust.” 8) Section 2(13) of the Maharashtra Public Trusts Act, 1950 defines “public trust” as under:- S.2(13). “public trust” means an express or constructive trust for either a public religious or charitable purpose or both and includes a temple, a math, a wakf [church, synagogue, agiary or other place of public religious worship], [a dharmada] or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the Societies Registration Act, 1860 (XXI of 1860). 9) Sections 2(4), 32 and 36 of the Act of 1951 are relevant and are reproduced herein below for reference:- “S.2(4) "public trust" means an express or constructive trust for a public, religious or charitable purposes and includes a temple, a math, a mosque, a church, a wakf or any other religious or charitable endowment and a society formed for a religious or charitable purpose; S.32 Bar to hear or decide suits. (1) No suit to enforce a right on behalf of a public trust which has not been registered under this Act shall be heard or decided in any Court. (2) The provisions of sub-section (1) shall apply to claim or set off or other proceeding to enforce a right on behalf of such public trust. S.36. Exemption - (1) Nothing contained in this Act shall apply to,- (a) a public trust administered by any agency acting under the control of the State or by any local authority; (b) a public trust administered under any enactment for the time being in force, and (c) a public trust to which the Muslim Wakfs Act, 1954 (29 of 1954) applies]. (2) The State Government may exempt by notification, specifying the reasons for such exemptions in the said notification, any public trust or class of public trusts from all or any of the provisions of this Act subject to such conditions, if any, as the State Government may deem fit to impose.” 10) A bare reading of these provisions would make it clear that the Public Trusts including a temple, a math, a mosque, a church, a wakf or any other religious or charitable endowment and a society formed for a religious or charitable purpose will come within the definition of ‘Trust’. No suit can be heard or decided on behalf of public trust if it is not registered under the Public Trust Act, meaning thereby, a suit can be instituted but it cannot be heard or decided. It can be interpreted that after the institution of a civil suit on behalf of the public trust if such trust is not registered under this Act, such trust during the pendency of the civil suit may apply for registration. Section 36 of the Chhattisgarh Public Trusts Act, 1951 deals with ‘Exemption’. It can be interpreted that after the institution of a civil suit on behalf of the public trust if such trust is not registered under this Act, such trust during the pendency of the civil suit may apply for registration. Section 36 of the Chhattisgarh Public Trusts Act, 1951 deals with ‘Exemption’. It says that nothing contained in this Act shall apply to a public trust administered under any enactment for the time being in force. 11) In the matter of Shri Dnyaneshwar Madhuradwait (supra), the High Court of Bombay held that if the activities of a registered society are for the benefit of the public or a section of the public or its object is either religious or charitable or both would itself render such a society ‘a public trust within the meaning of the definition. 12) In the present case, Non-applicant No.1/ plaintiff has not disputed the fact that it would not fall within the definition of ‘public trust’, therefore, there is no need to discuss the issue of whether the plaintiff Society would fall within the definition of the Public Trust or not? 13) The property of the plaintiff Society is situated within the territory of the State of Chhattisgarh. The Society is registered under the Societies Registration Act, 1860 (Punjab Amendment) Act, 1957. The Society filed the civil suits for the declaration to nullify the sale deeds executed by defendant No.2 in favour of defendant No.3 and also sought reliefs of declaration of title and permanent injunction. Defendant No.3 moved an application under Section 32 of the Chhattisgarh Public Trusts Act, 1951 read with Order 7 Rule 11 of the CPC inter alia on the ground that the plaintiff is a charitable trust and the same is not registered under the Chhattisgarh Public Trusts Act, 1951 therefore, the civil suits are not maintainable. It is also stated in the applications that no registration certificate has been produced by the plaintiff. 14) The plaintiff filed a reply and stated that the plaintiff Society is registered under the Societies Registration Act, XXI of 1860 dated 07.11.1963 in the office of Registrar of Societies, Delhi. It is further stated that the plaintiff has challenged the sale deeds dated 20.09.2013 and also sought relief of possession and permanent injunction and therefore, the provisions of Section 32 of the Act of 1951 would not attract. It is further stated that the plaintiff has challenged the sale deeds dated 20.09.2013 and also sought relief of possession and permanent injunction and therefore, the provisions of Section 32 of the Act of 1951 would not attract. It is also stated that the property of the plaintiff is situated in many States and there is no need for registration under the Act in the State of Chhattisgarh. 15) Learned Trial Court vide order dated 29.06.2019 rejected the application on the ground that the plaintiff Society was registered under the Societies Registration Act, XXI of 1860 in Delhi. It is further held that since the plaintiff Society is registered with the Registrar of Societies, Delhi, there is no need for registration in the State of Chhattisgarh. Learned Trial Court placed reliance on the judgment passed in the matter of Hariram Vs. Mahant Raghunathdas, 1960 Jabalpur Law Journal Short Note 41 where it is held that if a trust is registered outside the Madhya Pradesh and the property is situated within the State of Madhya Pradesh, there would be no need for registration under the Madhya Pradesh Public Trusts Act. 16) In the matter of Bhilai Education Trust (supra), the Hon’ble Division Bench of this Court in para 10 held that Section 32 of the Act, 1951 creates a bar to hear or decide suits. It is further held that no suit to enforce a right on behalf of a public trust which has not been registered under this Act shall be heard or decided in any Court. Para 10 is reproduced herein below:- “10. Reading of Section 32 of the Act, 1951 purports that it creates a bar to hear or decide suits. It purports that no suit to enforce a right on behalf of a public trust which has not been registered under this Act shall be heard or decided in any Court. Therefore, if the plaintiff is in hold of the document in the backdrop of the fact that entire existence of the fact was denied in the written -statement and on enquiry it was found that no such trust is registered, it was necessary on part of plaintiff to prove the existence of registered trust and the plaintiff Surendra Gupta has been authorized to file a suit on behalf of the trust. In absence thereof it cannot be said that the suit was properly filed before the Court.” It was a case where a suit was filed under the caption Bhilai Education Trust, through Surendra Gupta being the Secretary and Trustee of the said Trust. The defendant of that case in reply denied the existence of such trust. The plaintiff averred that a trust deed was executed in the year 1978 but no certificate of registration was placed before the Court and a specific issue was framed as to whether the plaintiff was competent to bring the suit when it was not registered as per the provisions of Section 32 of the Act of 1951. The facts of the case of Bhilai Education Trust (supra) and the present case are different. In the case of Bhilai Education Trust (supra), the registration certificate was not placed on record by the plaintiff whereas according to Section 32 of the Act, 1951, no suit can be heard and decided on behalf of the trust in the absence of registration under the Act of 1951 whereas in the present case, the registration certificate is on the record and the plaintiff society is registered according to provisions of the Act of, 1860. 17) In the matter of State of Orissa V. Chandrashekhar Singh Bhoi ETC, AIR 1970 SC 398 , the Hon’ble Supreme Court while dealing with the Tenancy Laws particularly the provisions regarding ceiling and disposal of excess land in Ch. IV inserted by the Amending Act held that Section 1(3) of the Act 16 of 1960 is undoubtedly a law in force, but until the power is exercised by the State Government to issue an appropriate notification, the provisions could not be deemed to be law in force. In para 5, the Hon’ble Supreme Court has held that “we are unable to accept this process of reasoning, the right to compensation which is not less than the market value under any law providing for the acquisition by the State of any land in an estate in the personal cultivation of a person is guaranteed by the second Proviso only where the land is within the ceiling limit applicable to him under any law for the time being in force. A law cannot be said to be in force unless it is brought into operation by legislative enactment, or by the exercise of authority by a delegate empowered to bring it into operation.” 18) It is contended by Mr. Bajaj that the Societies Registration Act, 1860 was repealed in the year 1959. In the year 1973, the Societies Registrikaran Adhiniyam was enacted and the Act of 1959 was repealed. He further contended that the plaintiff Society was registered in the year 1963 and at that time, the Act of 1860 was not in force in the State of Madhya Pradesh and the plaintiff society is not registered according to the provisions of Registrikaran Adhiniyam, 1973 or the Act of 1951, therefore, the plaintiff is not competent to file a civil suit in the State of Chhattisgarh in the absence of registration under any law for the time being in force. 19) The contention made by Mr. Bajaj, in the opinion of this Court, can not be accepted. The Act of 1860 is the Central Act and is still in force in the State of Delhi. The plaintiff Society was registered on 07.11.1963 according to the Societies Registration Act, XXI of 1860. The Registration Certificate of the plaintiff is valid and operative as the same has not been modified or canceled by any competent authority. 20) Section 36(1)(b) of the Act, 1951 clearly says that the Public Trust Act shall not apply to the public trust administered under any enactment for the time being in force. As the plaintiff Society is registered in Delhi as per the Societies Registration Act, 1860, therefore there was no need for registration under the Act of 1951. 21) In the matter of Shankar Singh Thakur (supra), the High Court of Madhya Pradesh while dealing with the provisions of Section 36(1)(b) held that the language of Section 36(1)(b) which is quite general cannot be limited in the manner submitted by the learned counsel. The enquiry to be made for applying the exemption is whether the Public Trust concerned is administered under any enactment, other than the Public Trusts Act, for the time being in force. The enquiry to be made for applying the exemption is whether the Public Trust concerned is administered under any enactment, other than the Public Trusts Act, for the time being in force. If there is any enactment which provides for the management and control over affairs of a public trust, the public trust would come within the exemption irrespective of the fact that the same enactment covers management and control of other public trusts of the same nature. In the case of Shankar Singh Thakur (supra), the Society was not registered under the Societies Registration Act, 1973 rather it was registered under the Societies Registration Act, 1860. The Court emphasized on to the provisions of Section 6(2) of the Madhya Pradesh Societies Registration Act, 1959 which says that a Society registered before the commencement of this Act under any of the enactments repealed shall be deemed to have been registered under this Act. It is further held that a certificate of registration issued under the Societies Registration Act, 1860 will amount to an instrument within the meaning of Section 13 of the Madhya Pradesh General Clauses Act and it would be deemed that the certificate of registration of Society was issued under the Act of 1973 and the Society must be deemed to have been registered under this Act. 22) In the matter of Dinesh Kumar Jaiswal (supra), the High Court of Madhya Pradesh placed reliance on the judgment passed in the matter of Hari Ram (supra), wherein it was held that a trust having a principal office or principal place of business outside the State of M.P. is not liable to be registered under the Act even though some of its property is situated within the State of Madhya Pradesh. Though the learned Trial Court placed reliance on the Short Note of the case of Hari Ram (supra), it clarifies the issue involved in both civil revisions. The Short Note is reproduced herein below:- “A trust having the principal office or principal place of business outside the State of Madhya Pradesh is not liable to be registered under the Madhya Pradesh Public Trusts Act even though some of its property is situated within the State of Madhya Pradesh.” 23) In the matter of Prakashveer Sharma (supra), the Hon’ble High Court of Madhya Pradesh in para 4 held as under:- “4. The plaintiff further pleaded that looking to the management of the temple, the committee was registered under the Societies registration Act on 26.04.1980. The defendants by suppressing materiel facts, executed one forged and fabricated Trust on 24.07.1981 (hereinafter referred to as the Trust) and got the same registered under Public Trust Act. It is further pleaded by the plaintiff that the creator of Trust was Gulab Bai who herself was not the owner and therefore, was incompetent to create a Trust under Section 5 & 6 of Indian Trust Act. It is further pleaded that since the temple has already been registered under Societies Act, 1973, therefore, the same could not have been again registered under the provisions of M.P. Public Trust Act. It is further pleaded that no notice was served under on the plaintiff society regarding registration of Trust. Therefore, it is clear that the Trust has been fraudulently created. Consequently, the suit was filed by the plaintiff seeking the decree to the effect that the plaintiff committee may be declared to manage the affairs of the temple and the defendant may be restrained from interfering the management of the temple.” 24) The plaintiff society is registered in Delhi and it is under the control of the Registering Authority. If the plaintiff society commits any mistake or violates any of the provisions of the Act of 1951, a complaint can be made before the competent authority in Delhi in accordance with law. The apprehension of the applicant/defendant no. 3 is misconceived. 25) Section 8 of the General Clauses Act, 1897 (for short ‘the Act of 1897’) deals with the Construction of references to repealed enactments. Sub-section 1 says if any Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, then references in any other enactment to the provision so repealed shall be construed as references to the provision so re-enacted. This Section makes it clear that repealed new law subsequently made, will have effect unless its operation is saved by the relevant provision. This Section makes it clear that repealed new law subsequently made, will have effect unless its operation is saved by the relevant provision. In the case in hand, the plaintiff society was registered according to the provisions of the Act, 1860 and enactment is still in force whereas, the same has been repealed in the State of Madhya Pradesh in 1959 but there is no provision to the effect that any Society or Trust registered under the Act of 1860 in any other State has to be registered according to the new amendment law, thus the validity of the plaintiff society registered in Delhi would remain unaffected. 26) Section 10 of the Act of 1897 deals with Computation of time. According to this Section, any Central Act or Regulation made after the commencement of this Act will come into force on a certain day or within a prescribed period, particularly on which the Court or office is open. The Act of 1860 is still in force in Delhi whereas the same has been repealed in the State of Madhya Pradesh thus, the Act of 1860 would not be operative in the State of Madhya Pradesh but in other States, its position will remain unaffected in the absence of any amendment or modification and the State of Madhya Pradesh has no authority of law to make the provisions of any law inoperative in other States or at Central level. 27) Section 13 of the Chhattisgarh General Clauses Act, 1957 deals with the ‘Construction of references to repealed enactment. After repeal or re-enactment, the provisions so repealed would be applicable. This Section is of no help as the Act of 1860 applicable in Delhi has not been repealed and it was in force even in the year 1959. Further, the Society registered under the Act of 1860 in Delhi and the provisions of the Act of 1860 applicable in Delhi have not been touched either by the Madhya Pradesh General Clauses Act, 1957 or the Madhya Pradesh Societies Registration Act. Further, the Society registered under the Act of 1860 in Delhi and the provisions of the Act of 1860 applicable in Delhi have not been touched either by the Madhya Pradesh General Clauses Act, 1957 or the Madhya Pradesh Societies Registration Act. 28) Taking into consideration the provisions of Section 32 and Section 36(1)b) of the Act of 1951 it is apparent that the plaintiff Society was registered under the Societies Registration Act, XXI of 1860 and also considering the law laid down by the High Court of Madhya Pradesh, particularly while dealing with Section 36(1) of the Act of 1951, this Court has no hesitation to hold that the learned Trial Court has not committed any error of law in rejecting the applications moved by defendant No.3/applicant. Consequently, both revisions fail and are hereby dismissed. No order as to cost(s) 29) The interim order granted earlier in both cases shall stand vacated.