Prestige Education Society vs State Of M.P. And 2 Ors.
2024 Latest Caselaw 5850 MP

Madhya Pradesh High Court

Prestige Education Society vs State Of M.P. And 2 Ors. on 27 February, 2024

Author: Vivek Rusia

Bench: Vivek Rusia

                                                                -1-

                                  IN THE HIGH COURT OF MADHYA PRADESH
                                               AT I N D O R E
                                                           BEFORE
                                         HON'BLE SHRI JUSTICE VIVEK RUSIA


                                              WRIT PETITION No. 1940 of 2012

                           BETWEEN:-
                           PRESTIGE EDUCATION SOCIETY THRU.JT.SECRETARY,DR.MANMATH
                           PATNI,17B/3,OLD PALASIA,INDORE (MADHYA PRADESH)
                                                                                    .....PETITIONER
                           (BY SHRI SUMEET SAMVATSAR, ADVOCATE)

                           AND
                                STATE OF M.P. AND 2 ORS. GOVT. THRU.SDO & REGISTRAR,PUBLIC
                           1.
                                TRUST,DEWAS DIVISION (MADHYA PRADESH)
                                SUB DIVISIONAL OFFICER & REGISTRAR PUBLIC TRUST,DEWAS
                           2.
                                (MADHYA PRADESH)
                              SHRI BHARAT KUMAR S/O LATE LAXMINARAYAN JHAVERI 2ND
                           3. FLOOR JHAVERI BUILDING 1 KUMHAAR TUKDA, BHULESHWAR
                              (MAHARASHTRA)
                                                                                 .....RESPONDENTS
                           (STATE BY SHRI VAIBHAV BHAGWAT, GOVERNMENT ADVOCATE)
                           (RESPONDENT NO.3 BY SHRI AYUSHYAMAN CHOUDHARY, ADVOCATE)


                                    Reserved on           :      06th February, 2024
                                    Delivered on          :      27th February, 2024
                                    This petition having been heard and reserved for order coming on
                           for pronouncement this day, the court pronounced the following:
                                                           ORDER

The petitioner has filed the present petition under Article 226 of the Constitution of India being aggrieved by the order dated 31.01.2012 passed by the Sub Divisional Officer & Registrar, Public Trust, Dewas.

02. Facts of the case in short are as under:-

2.1. The petitioner is an Educational Society registered under the provisions of M.P. Society Registrikaran Adhiniyam, 1973. Shri Javeri Ram Mandir Trust is a Public Trust registered under Setion 5 of M.P. Public Trust Act, 1951 (in short the Act of 1951). According to the petitioner, one of the trustees Shri Laxminarayan Javeri submitted an application under Section 14 of the Act of 1951 before the Registrar seeking permission to sale the trust's property situated at Surveys No.56 to 60 situated at Village - Bawadiya, District - Dewas. Vide order dated 18.12.1979, the sanction was granted by respondent No.2 to sale the property.

2.2. Vide registered sale deed No.1A/3184 dated 21.01.1982, the Trust sold the land to one Narendra Kumar S/o Banshidhar Singhal.

Thereafter, the same land was further sold to Lakshmi Griha Nirman Sahkari Sanstha Maryadit, Dewas. The Tehsildar passed the order dated 30.05.1985 mutating the name of Lakshmi Griha Nirman Sahkari Sanstha Maryadit.

2.3. The petitioner purchased the same part of the land admesuring 1.012 hectare situated at Village - Bawadia from Lakshmi Girha Nirman Sahkari Sanstha Maryadit vide registered sale deed Nos.2630 & 2631 dated 16.11.2006, thereafter, the name of the petitioner was also mutated in the revenue record in compliance of the order dated 12.12.2000 passed by Tehsildar. In order to use the land by establishing a Management Institute, the petitioner applied to the Sub Divisional Officer for diversion of the land from 'agricultural' to 'educational' purpose. Vide order dated 24.02.2001, the Sub Divisional Officer diverted the land for educational purpose. Before diverting the land, the Sub Divisional Officer sought 'No Objection Certificate' (NOC) from

the office of Town & Country Planning Department (TNCP), Dewas. Chief Executive Officer, Dewas Development Authority & Commissioner, Dewas Municipal Corporation.

2.5. Thereafter, the petitioner applied to the Deputy Director, TNCP, Dewas for approval of construction of Management Institute / Hostel & Staff Quarters. An application was also filed before the Dewas Municipal Corporation for sanctioning the map. After obtaining the necessary sanction and permission, Management Institution was established in the year 2001 - 02.

2.6. After almost 10 years, the petitioner received summon from respondent No.2 calling upon to submit title deed of the land bearing Survey Nos.56/3, 57/2, 59/3, 59/4 and 60/2, Patwari Halka No.24 Bawadia, Dewas. The petitioner appeared along with the registered sale deed. Vide impugned order dated 31.01.2012, respondent No.2 cancelled the registration of Shri Javeri Ram Mandir Trust and directed the Tehsildar to take the charge of all the movable and immovable properties. According to the petitioner, respondent No.2 passed the impugned order in exercise of power conferred under Section 36(1) of the Act of 1951 without giving any opportunity of hearing to them. According to the petitioner the order dated 22.12.1976, by which the Trust was registered was challenged before the District Judge, Dewas and High Court by way of First Appeal No.1 of 1980, therefore, the status of Trust had been upheld by this Court.

2.7. According to the petitioner, Gopal Vyas & two thers. filed a complaint before respondent No.2 about the mismanagement in the Trust. Vide order dated 28.06.2002, the matter was referred to the District Court for adjudication. The petitioner has filed the present petition challenging the order dated 31.01.2012 solely on the ground

that the order passed by the Sub Divisional Officer is beyond the scope and purview of Section 36(1) of the Act of 1951. The Sub Divisional Officer has no authority to recall the order dated 18.12.1979 as there is no such provision under the Act of 1951.

03. After notice, the respondents / State filed a reply by submitting that Shrimant Sarkar Maharaja Saheb Dewas Junior gave 25 bigha land to Shri Javeri Ram Mandir. The name of Shri Javeri Ram Mandir was mutated in the revenue record which continued up to 1978. Thereafter, the temple and properties run by the State Government was wrongly included by establishing a Public Trust. Thereafter, permission was illegally obtained to sale the land, therefore, the power has rightly been exercised under Section 36 of the Act of 1951 to cancel the registration.

04. The petitioner filed a rejoinder to the return by submitting that Section 36 of the Act of 1951 nowhere empowers respondent No.2 to revoke the registration of registered Trust or to revoke the permission granted earlier Under Section 14 of the said Act. It is further submitted that Rajender Kumar & others filed W.P. No.2214 of 2012 challenging the same impugned order and the said petition was allowed and the order of Sub Divisional Officer was set aside.

05. Respondent No.3 has filed an application i.e. I.A. No.6084/2023 stating that during pendency of the petition, the Managing Trustee of the Trust passed away on 26.07.2021 and as per the covenant of deed and bylaws, a new Managing Trustee Shri Bharat Javeri has been appointed vide order dated 26.05.2023 in compliance of the order passed in W.P. No.788 of 2018.

06. In view of the order dated 26.05.2023, it is clear that the registration of the Trust is still alive and the trustees are running the Trust. The impugned order had already been quashed in W.P. No.2214 of

2012 by Coordinate Bench of this Court. The order dated 31.01.2012 passed by the Sub Divisional Officer recalling the sale permission granted in the matter of Trust's properties has been set aside by this Court vide order dated 09.02.2017. However, the petitioner was not party in W.P. No.2214 of 2012 to protect his sale deed. The petitioner is the bonafide purchaser of the property which was initially sold after obtaining the permission from the Sub-registrar. Thereafter, various Government authorities examined the sale deed, thereafter, granted permission for diversion, construction etc.

07. Even otherwise under Section 36 of the Act of 1951, the power of Sub-registrar is very limited. Section 36 only speaks about exemption of certain trust by the State Government. This section nowhere gives power to the Registrar to revoke the registration of the Trust or recall / review any order passed under Section 14 of the Act of 1951. The power of review has not been given under the Act of 1951. At the most, the Registrar could have passed the order under Section 26 by referring the dispute to District Court if the trustees were not managing the properties properly.

08. This Court way back in the year 1962 in the case of Laxmi Chand Modi v/s B.R. Mandal, Registrar of Public Trusts, Sagar reported in 1962 SCC OnLine MP 169 : ILR 1963 MP 1004, had held that Registrar giving sanction to the proposed sale, he has not power to recall or review the sanction subsequently.

09. Recently, in the case of Khasgi (Devi Ahilyabai Holkar Charities) Trust, Indore & Another v/s Vipin Dhanitkar & Others reported in 2022 SCC OnLine SC 900, the Apex Court has held that under Section 26(2) of the Act of 1951, the Registrar can himself make an application to the Court seeking the exercise of power under Section

27 and the Court has the power to remove the trustees of the Trust to issue a direction as provided under Section 27. It has also been held that the Registrar while exercising the power under Section 22 of the Act 1951 may call for the record or report from the trustees. The Registrar can also call upon the trustees for explanation. In a given case, the Registrar has power of recovery from the trustees of an amount equivalent to the loss caused to the Trust due to the illegal alienation of the Trust's properties by the trustees. Paragraphs - 53 to 56 of the aforesaid judgment are as under:-

"53. The Registrar by exercising powers under Section 22 of the Public Trusts Act, can call for the record and report from the Trustees. If the report of the Auditor, submitted in accordance with Section 17, shows material defects in the administration of the Public Trust, the Registrar can always call upon the Trustees to submit an explanation. Under Sub-Section (2) of Section 23, the Registrar has power, after holding an inquiry in a prescribed manner, to decide whether Trustees have been guilty of any conduct which has resulted in any loss to the Public Trust. He is empowered to quantify the amount of loss caused to the Public Trust and also to decide the amount which any of the Trustees or any other person, is liable to pay to the Public Trust for compensating for such a loss. Section 24 provides for an appeal to the Court against an order made under Section 23. Section 31 of the Public Trusts Act provides that the amount determined in accordance with Sections 23 and 24, is recoverable as arrears of land revenue. In a given case, the Registrar can direct recovery from Trustees of an amount equivalent to the loss caused to the Trust due to illegal alienation of Trust property by the Trustees.

54. When a Trust property is transferred without prior sanction of the Registrar under Section 14 and/or without following a fair and transparent process, it can be always said that the Trust property is not being properly managed or administered. In such a case, apart from exercising the power under Section 23, the Registrar can make an application under sub-Section (1) of Section 26 inviting the attention of the Court to the mismanagement of the Trust. Sections 26 and 27 are material in this behalf, which read thus: -

"26. Application to for directions.-(1) If the Registrar on the application of any person interested in the public trust or

otherwise is satisfied that, -

(a) the original object of the public trust has failed:

(b) the trust property is not being properly managed or administered; or

(c) the direction of the court is necessary for the administration of the public trust; 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.

(2) If the trustee so directed fails to make an application as required, or if there is no trustee of the public trust or if for any other reason, the Registrar considers it expedient to do so, he shall himself make an application to the court.

27. Courts power to hear application- (1) On receipt of such application the court shall make or cause to be made such inquiry into the case as it deems fit and pass such orders thereon as it may consider appropriate.

(2) While exercising the power under sub-section (1) the court shall, among other powers, have power to make an order for:- (a) removing any trustee;

                              (b)       appointing a new trustee;
                              (c)      declaring what portion of the trust property or of

the interest therein shall be allocated to any particular object of the trust;

(d) providing a scheme of management of the trust property; (e) directing how the funds of a public trust whose original object has failed, shall be spent, having due regard to the original intention of the author of the trust or the object for which the trust was created;

(f) issuing any directions as the nature of the case may require.

(3) Any order passed by the court under sub-section (2) shall be deemed to be a decree of such court and an appeal shall lie therefrom to the High Court. (4) No suit relating to a public trust under section 92 of the Code of Civil Procedure, 1908 (V of 1908), shall be entertained by any court on any matter in respect of which an application can be made under section 26."

55. Under sub-Section (2) of Section 26, the Registrar can himself make an application to the Court seeking the exercise of powers under Section 27. On such an application being made and after holding an inquiry, the Court has the power to remove the Trustees of the Trust or to issue directions as provided in Section 27.

56. In the present case, all the alienations made by the Trustees of Khasgi Trust except alienation made in favour of the appellant in Civil Appeal arising out of Special Leave Petition (C) No.19063 of 2021, have been made without complying with the mandatory requirement of obtaining the previous sanction as

required by subSection (1) of Section 14."

[Emphasis Supplied]

10. In view of the above, the Sub Divisional Officer has wrongly exercised the power under Section 36 of the Act of 1951 in the matter. The impugned order is hereby set aside. The matter is remitted back to the Registrar to examine and conduct an inquiry under Sections 22 & 23 of the Act of 1951.

11. With the aforesaid, Writ Petition stands allowed and disposed of finally.

(VIVEK RUSIA) JUDGE Ravi