Madhya Pradesh High Court
Avdhesh vs The State Of Madhya Pradesh on 27 February, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
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W.P. No.27460/2021
IN THE HIGH COURTOF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 27th OF FEBRUARY, 2024
WRIT PETITION No. 27460 of 2021
BETWEEN:-
AVDHESH S/O SHRI KAILASHCHANDRA KANUNGO, AGED ABOUT 44
YEARS, OCCUPATION: BUSINESS SUKHVILAS COLONY (MADHYA
PRADESH)
.....PETITIONER
(SHRI AJAY JAIN, LEARNED COUNSEL FOR THE PETITIONER.)
AND
THE STATE OF MADHYA PRADESH PRINCIPAL SECRETARY
1.
VALLABH BHAWAN BHOPAL (MADHYA PRADESH)
REGISTRAR OF PUBLIC TRUST AND SUB DIVISIONAL OFFICER
2.
(REVENUE) BADWANI (MADHYA PRADESH)
SUDHIR CHOUREY S/O SHRI SUKHDEV CHOUREY NEW HOUSING
3.
BOARD COLONY BADWANI (MADHYA PRADESH)
RAJIV S/O SHRI HARIVALLABH SHARMA 54/1 RUKMANI NAGAR
4.
(MADHYA PRADESH)
PRAVEEN S/O BHAVNASHANKAR PANDEYA JAMBU GALI BADWANI
5.
(MADHYA PRADESH)
SHAILENDRA S/O KRISHNACHANDRA PARASHAR SUBHASH MARG
6.
RANIPURA (MADHYA PRADESH)
.....RESPONDENTS
(SHRI DEVDEEP SINGH, LEARNED PANEL LAWYER FOR THE
RESPONDENTS/STATE.)
(SHRI NITIN PHADKE, LEARNED COUNSEL FOR THE RESPONDENT NOS.
3 TO 6.)
This petition coming on for hearing this day, the court passed the
following:
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W.P. No.27460/2021
ORDER
1. The petitioner has filed the present petition being aggrieved by order
dated 17.11.2021 (Annexure P/6) passed by respondent No.2 whereby
order dated 23.8.2021 has been cancelled.
2. Facts of the case, in short, are as under :
2.1 The petitioner along with 11 others filed an application before
respondent No.2 under Rule 4(2) of the M.P. Public Trust Rules, 1962 for
registration of the trust in the name of "Narmadiya Brahmin Samaj
Samajik Nyas Barwani, District Barwani". Vide notice dated 23.6.2021,
the SDO, Revenue who is also Registrar of Public Trust invited objections
and thereafter vide order dated 23.8.2021 registered the Trust in the
aforesaid name u/s. 6 of the M.P. Public Trust Act.
2.2 Being aggrieved by the aforesaid order of registration of the Trust,
four members of Narmadiya Brahmin Samaj filed an application u/s. 114
of the C.P.C. seeking cancellation of order dated 23.8.2021 on the ground
that no publication of notice was made in the newspaper, therefore, no
objection could be submitted by other members of the society; no details of
movable and immovable properties were given and now the trusts of the
said Trust are misusing their position and working in violation of the
bylaws, therefore, the registration of the Trust be cancelled.
2.3 Notices of the aforesaid application were issued to the trustees of the
Trust. The present petitioner being non-applicant No.2 submitted an
objection about maintainability of the review petition in the form of
application. Vide order dated 17.11.2021, the Registrar/SDO has cancelled
the order dated 23.8.2021 on the ground that violation of aims and object
of the Trust has been found. Hence, the present petition before this Court.
3. The petitioner being one of the trustees has filed the present petition
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challenging the order dt. 17.11.2021 inter alia on the ground that in the
M.P. Public Trust Act, there is no provision for review of the order by
which the Trust was registered. The only remedy available to the person to
challenge the registration of the Trust by way of civil suit u/s. 8 of the M.P.
Public Trust Act within a period of six months from the date of publication
of notice under sub-section (1) of Section 7 of the Act.
4. Learned counsel for the petitioner has placed reliance over the
judgment passed by Division Bench of this Court in case of Julious
Prasad V/s. State of M.P. : 2010(1) MPLJ 659 in which it has been held
that quasi judicial authority cannot review its own order, unless the power
of review is expressly conferred on it by the statute under which it derives
its jurisdiction. It has further been held that it is not in dispute that the
provisions of the Pubic Trusts Act, 1951 and the Rules made thereunder do
not confer any power of review on the Registrar and accordingly order of
review dt. 13.2.2007 was quashed by the Division Bench.
5. Learned counsel appearing for respondents No.3 - 6 submits that the
order which has been obtained by fraud can be recalled at any stage upon
discovery of fraud by the same authority and that power is an inherent
power with the authority. The petitioner has got the Trust registered
without following the procedure prescribed under the law. All the
properties of the society have been included in the Trust. In support of his
contention, he has placed reliance on the order passed by the Single Bench
in case of Smt. Birdibai V/s. Registrar of Public Trust (W.P.No.3647/2014
decided on 29.6.2017) which has been upheld by the Division Bench of
this Court in W.A. No.418/2017 vide order dt. 29.8.2017. Hence, in view
of the above submission, Shri Phadke, learned counsel prays for dismissal
of the writ petition.
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Heard the learned counsel for the parties and perused the material
available on record.
6. In the case of Birdibai (supra), finding has been given by this Court
that the trustees in order to grab the house property which is in possession
of respondent No.3 therein and the same is situated in a prime location of
Indore got the Trust registered by filing false affidavit before the Registrar.
The Special Judge, CBI has also registered a criminal case against the
trustees u/s. 193 of the IPC for filing a false affidavit. Therefore, in the
given facts and circumstances the cancellation of the Trust was warranted
to protect the properties. But, in the present case, the cancellation of
registration of the is being was sought on other grounds that the properties
are not being managed properly; one of the properties has been given on
rent illegally; proper publication of notice was not given before registration
of the Trust; etc. Therefore, on these grounds, remedy would be to file a
suit u/s. 7 of the M.P. Public Trust Act in view of the law laid down by the
Division Bench in the case of Julious Prasad (supra). Even otherwise, the
judgment passed in the case of Julious Prasad (supra) is prior to the
judgment passed in the case of Birdibai (supra) which will prevail in view
of the judgment passed by the Five Judges Bench in the case of Jabalpur
Bus Operators Association V/s. State of M.P. : 2003(1) MPLJ 513.
6. In view of the foregoing discussion, this petition deserves to be and
is hereby allowed. The impugned order dated 17.11.2021 is hereby set
aside. However, respondents No.3 to 6 shall be at liberty to approach the
Civil Court, if so advised. The petition stands allowed.
( VIVEK RUSIA )
JUDGE
Alok/-
Date: 2024.02.29 15:28:17 +05'30'
