Full Judgment Text
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CASE NO.:
Appeal (civil) 5565 of 1995
PETITIONER:
Seth Chand Ratan
RESPONDENT:
Pandit Durga Prasad (D) by Lrs. & Ors.
DATE OF JUDGMENT: 28/03/2003
BENCH:
S. Rajendra Babu & G.P. Mathur
JUDGMENT:
JUDGMENT
G.P. Mathur, J.
This appeal by special leave has been preferred against the judgment
and order dated 7.3.1995 of a Division Bench of High Court of Madhya
Pradesh by which the letters patent appeal preferred by the appellant was
dismissed and the judgment and order dated 2.9.1994 of the learned Single
Judge by which the writ petition filed by Pandit Durga Prasad, the
predecessor-in-interest of respondent nos.1 (a) to (e) had been allowed was
affirmed.
There is a temple known as Shri Madan Mohan Mandir in Jawahar
Nagar, Harda in the District of Hoshangabad. There are some shops in the
precincts of the temple which have been let out to different tenants.
According to the appellant, the temple and the shops are owned and
managed by a public trust known as Maheshwari Panchayati Mandir. While
according to Pandit Durga Prasad, the predecessor-in-interest of respondent
nos.1 (a) to (e), the temple and the shops are property of his family and they
do not belong to any public trust.
Pandit Kamta Prasad (brother of Pandit Durga Prasad) moved an
application on 29.8.1953 under Section 4 of the M.P. Public Trusts Act,
1951 (hereinafter referred to as "the Act") for registration of Shri Madan
Mohan Temple Trust and the application was registered as Case No.73. In
this application it was alleged that a public trust was established by His
Holiness Param Vaishnav Raghu Nath Ji Vyas and he himself along with his
two brothers, namely, Pandit Durga Prasad and Pandit Narayan Prasad were
the trustees thereof. Another application was moved by Seth Champalal
Sheonarayanji Rathi, Seth Laxminarayanji Rathi and some others on
30.8.1953 before the Registrar for registration of a trust known as
Maheshwari Panchayati Mandir, Harda and this application was registered
as case No.206. Seth Champalal Sheonarayanji Rathi was the father of the
appellant Seth Chand Ratan. Seth Chand Ratan moved an application on
7.2.1955 for amalgamation of application nos.73 and 206. It appears that
the Registrar held some inquiry in the application moved by Pandit Kamta
Prasad. Subsequently, Pandit Kamta Prasad moved an application on
20.1.1955 for withdrawal of the application moved by him earlier for
registration of the Trust. In this application, it was stated that the temple
had been constructed by the forefathers of the applicant and no property or
land, etc. had been given by anyone and it was the family of the applicant
which was maintaining and managing the temple with their own money and
consequently it was not a public trust. It was further stated that the
application for registration of the trust had been given under some
misconception about the provisions of the Act as it was thought that all
temples had got to be registered. The Registrar by his order dated
19.7.1955 allowed this application for withdrawal of case no.73, which had
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been registered on the application moved by Pandit Kamta Prasad.
However, before the said order was passed, the application moved by Seth
Champalal Sheonarayanji Rathi which had been registered as case no.206.
had been allowed on 7.2.1955 and Maheshwari Panchayati Mandir had been
registered as a public trust and Shri Madan Mohan Mandir and some other
property including the shops in precincts thereof were shown to be the
property of the aforesaid trust. Pandit Kamta Prasad thereafter moved an
application for correction of records and vide order dated 31.12.1956 the
Registrar directed that Shri Madan Mohan Mandir be recorded as private
trust of Pandit Kamta Prasad.
Nearly 20 years thereafter, the appellant Seth Chand Ratan moved an
application before the Registrar under Section 22 read with Sections 14 and
26 of the Act for issuing appropriate directions for proper management of
the trust property. In this application Pandit Durga Prasad and some tenants
of the shops were impleaded as opposite parties. Pandit Durga Prasad
opposed the prayer made in the application on the grounds, inter alia, that
Shri Madan Mohan Mandir and the properties in the precincts thereof were
not properties of a public trust but were his private properties. The
Registrar after hearing the parties passed an order on 13.12.1983 holding
that the order passed in case no.206 directing registration of the trust as a
public trust being of a binding nature, the validity of order dated
31.12.1956 has to be adjudicated upon by a Court under Section 26(1) (c) of
the Act at the instance of Pandit Durga Prasad within 15 days from the date
of the order and in case of his failure to do so, he shall make an application
to the Court under Section 26(2) of the Act. Since Pandit Durga Prasad did
not move an application to the Court, the Registrar himself made a reference
to the Court under Section 26(2) of the Act, which was registered as Misc.
Case No.2 of 1984. The First Additional District Judge, Hoshangabad, after
hearing the parties decided the reference by his order dated 28.3.1985 and
held that the order dated 31.12.1956 of the Registrar was not in accordance
with law and was not binding. He accordingly directed that the trustees and
managers of Maheshwari Panchayati Mandir, Harda, shall be handed over
the management of Shri Madan Mohan Mandir and the tenants in the shops
of the temple shall pay rent to them. It was further directed that the
Registrar shall make inquiries from time to time and see that proper accounts
of the income arising out of the temple are kept and the same is used for the
purpose shown in the trust.
Pandit Durga Prasad then filed a writ petition under Articles 226 and
227 of the Constitution for quashing the order dated 13.12.1983 of the
Registrar and the order dated 28.3.1985 passed by the First Additional
District Judge, Hoshangabad in Misc. Case No.2 of 1984. Pandit Durga
Prasad also filed Misc. First Appeal No.384 of 1987 under Section 27(3) of
the Act before the High Court of Madhya Pradesh challenging the same
judgment and order dated 28.3.1985 of First Additional District Judge,
Hoshangabad in Misc. Case no.2 of 1984. The appeal was filed long after
the expiry of period of limitation and accordingly an application under
Section 5 of the Limitation Act for condonation of delay was filed. This
application was rejected and consequently the appeal was also dismissed by
the High Court on 26.11.1988. The writ petition filed by Pandit Durga
Prasad was, however, allowed by a learned Single Judge by the judgment
and order dated 2.9.1994 and the order dated 13.12.1983 of the Registrar and
also the order dated 28.3.1985 passed by the First Additional District Judge,
Hoshangabad were quashed. Seth Chand Ratan thereafter filed a letters
patent appeal against the aforesaid decision of the learned Single Judge, but
the same was dismissed by the impugned judgment and order dated
7.3.1995.
Learned counsel for the appellant has submitted that the Registrar
having registered Maheshwari Panchayati Mandir as a public trust by the
order dated 7.2.1955 and the said order having became final and conclusive
in view of sub-section (2) of Section 7 of the Act, the only remedy
available to Pandit Kamta Prasad was to file a civil suit under Section 8 of
the Act. However, instead of pursuing the aforesaid remedy, he moved an
application for correction of record, which was allowed by the Registrar on
31.12.1956. Learned counsel has submitted that the Registrar had
absolutely no jurisdiction to entertain the aforesaid application and
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consequently the order passed by him on 31.12.1956 directing correction of
record is wholly illegal and without jurisdiction and is a nullity in the eyes
of law. Learned counsel has further urged that the temple and the shops in
the precincts thereof were properties of Maheshwari Panchayati Mandir,
which was a public trust and, therefore, the application moved by the
appellant, Seth Chand Ratan under Section 22 read with Section 26 of the
Act was fully maintainable and the Registrar had rightly passed an order on
31.12.1983 directing Pandit Durga Prasad to seek appropriate directions
from the Court and on his failure to do so, he rightly referred the matter to
the Court. The First Additional District Judge, Hoshangabad, it is urged,
was fully competent to enter upon the reference and the order passed by him
to the effect that the order dated 31.12.1956 of the Registrar was not in
accordance with the provisions of the Act and was not binding and that the
management of Shri Madan Mohan Mandir and the shops in precincts
thereof shall be handed over to the trustees and manager of Maheshwari
Panchayati Mandir is perfectly correct. Learned counsel has further
submitted that the order passed by the First Additional District Judge is
deemed to be a decree of the Court under Sub-section (3) of Section 27 of
the Act against which an appeal lies to the High Court. The appeal preferred
by Durga Prasad having been dismissed by the High Court on 26.11.1988,
the order passed by the First Additional District Judge became final and
binding between the parties and it was not at all open to the High Court to
quash the very same order in a writ petition under Article 226/227 of the
Constitution. It has thus been submitted that the impugned orders dated
2.9.1994 of the leaned Single Judge and also the order dated 7.3.1995 of the
Division Bench in letters patent appeal are wholly illegal and deserve to be
set aside.
Learned counsel for the contesting respondents (legal representatives
of Pandit Durga Prasad) has submitted that Pandit Kamta Prasad had moved
the application for registration of Shri Madan Mohan Mandir as a public
trust under a mistake of law as M.P. Public Trusts Act 1951 had come into
force in the year 1951 and he acted under a misconception that every temple
has got to be registered under the said Act. It was under these
circumstances that he moved an application for withdrawal of case no.73
which was allowed by the Registrar on 19.7.1955. Learned counsel has
further submitted that the order passed by the Registrar on 7.2.1955 for
registration of Maheshwari Panchayati Mandir as a public trust was illegal as
Seth Champalal Sheonarayanji Rathi had also moved an application for
amalgamation of case no.73 and case no.206 and the aforesaid order was in
fact an ex-parte order against Pandit Kamta Prasad. When he came to know
of the aforesaid order, he applied for correction of records which was
allowed by the Registrar vide order dated 31.12.1956 and Shri Madan
Mohan Mandir was recorded as a private trust of the family of Pandit Kamta
Prasad. Since the Registrar had committed a mistake while passing the order
dated 7.2.1955 by which Maheshwari Panchayati Mandir was registered as a
public trust, the said mistake was rightly corrected by him. The further
argument of the learned counsel is that the order passed by the Registrar on
31.12.1983 by which he made a reference to the Court was illegal inasmuch
as such a direction could only be issued in the case of a public trust but as
the temple and the shops were not the property of a public trust, no such
reference could be made and the order passed by the First Additional District
Judge is also illegal and the same was rightly quashed in the writ petition
preferred by Pandit Durga Prasad.
Before examining the contentions raised by the learned counsel for the
parties, it will be convenient to take note of few provisions of the Act.
Section 2(4) defines "public trust" and it means an express or constructive
trust for a public, religious or charitable purpose 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.
Section 3 provides that the Collector shall be the Registrar of Public Trusts
and he shall maintain the register of public trusts and such other books and
registers and in such form as may be prescribed. Section 4 provides that
within three months from the date of coming into force of the Section, the
working trustees of every public trust shall apply to the Registrar having
jurisdiction for the registration of the public trust. Sub-section (3) of
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Section 4 lays down that the application shall be in such form as may be
prescribed and shall contain the particulars enumerated in this sub-section.
Sub-section (5) of Section 4, provides an appeal against the decision made
by the Registrar regarding registration of a public trust and it also lays down
that the order of the appellate authority shall be final. Section 5 enjoins the
Registrar to make inquiry in the prescribed manner for the purposes of
ascertaining whether the trust is a public trust; whether any property is the
property of the trust; the names and addresses of the trustees and managers
and the mode of succession to the office of the trustee of such trust; the
amount of gross average annual income and expenditure, etc. Section 6
lays down that 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. Section 8 lays down that any working trustee
or person having interest in a public trust or any property found to be trust
property, feeling aggrieved by any finding of the Registrar under Section 6
may, within six months from the date of the publication of the notice under
sub-section (1) of Section 7, institute a suit in a civil court to have such
finding set aside or modified. Section 26 lays down that if the Registrar is
satisfied on the application of any person interested in the public trust or
otherwise that the original object of the trust has failed; or the trust property
is not being properly managed or administered; or 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 a specified time. Where the trustee so directed
fails to make an application as required and the Registrar considers it
expedient to do so, he shall himself make an application to the Court. Sub-
section (1) of Section 27 lays down that 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 order thereon as it may consider appropriate. The powers
which can be exercised by the Court have been enumerated in Sub-section
(2) of this Section. Sub-section (3) of Section 27 is important and it lays
down that 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. Sub-section (4) provides that no suit relating to public trust
under Section 92 of the Code of Civil Procedure shall be entertained by any
Court on any matter in respect of which an application can be made under
Section 26.
The reason which weighed with the learned Single Judge for allowing
the writ petition was that in case no.73, which was initiated by Pandit Kamta
Prasad, a detailed inquiry was made by SDO, Harda and after recording
statement of some witnesses he had come to the conclusion that Shri Madan
Mohan Mandir and the shops in the precincts thereof were the personal
property of Pandit Kamta Prasad not that of Maheshwari Panchayati Samaj.
The order passed by the Registrar on 7.2.1955 in case no.206 directing that
the aforesaid property belonged to and was being managed by a public trust,
namely, Maheshwari Panchayati Samaj had been passed on account of a
clerical mistake. Thus, it was held that there was no occasion for the
Registrar to make a reference to the Court under Section 26 of the Act and
consequently the order dated 31.12.1983 making the reference and the order
passed by the Court (First Additional District Judge) on 28.3.1985 were
illegal. The Division Bench has also concurred with the aforesaid reasoning
of the learned Single Judge.
In our opinion, the view taken by the High Court is not supported by
the provisions of the Act. Pandit Kamta Prasad had himself moved an
application under Section 4 of the Act on 29.8.1953 for registration of Shri
Madan Mohan Mandir as a public trust and this application was registered as
Case No.73. However, subsequently he moved an application on 20.1.1955
for withdrawal of the aforesaid application. This application was opposed
by Seth Champalal Sheonarayanji Rathi (father of the appellant) by filing a
detailed objection on 6.4.1955. The Registrar by his order dated 19.7.1955
allowed the application for withdrawal moved by Pandit Kamta Prasad and it
was mentioned in the order that this was being permitted at his own risk.
The proceedings initiated by Pandit Kamta Prasad having been withdrawn,
the result was that no final order, one way or the other, was passed in case
no.73 and, therefore, any report submitted by the SDO in the said case could
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not form the basis for holding that the order passed in case no.206 initiated
on the application of Maheshwari Panchayati Samaj had been passed on
account of any clerical mistake. The scheme of the Act shows that after
holding an inquiry, as provided under Section 5, the Registrar has to record
his findings with reasons therefor and Section 7 enjoins making of entries in
the register in accordance with the findings recorded under Section 6. Sub-
section (2) of Section 7 lays down that the entries so made shall, subject to
the provisions of the Act, be final and conclusive. Section 8 confers a right
upon a person who is aggrieved by any finding of the Registrar recorded
under Section 6 to institute a suit in a Civil Court within six months to have
such finding set aside or modified. In view of these provisions, the order
passed by the Registrar in case no.206, by which it was held that
Maheshwari Panchayati Mandir is a public trust and Shri Madan Mohan
Mandir and the shops in the precincts thereof were the property of the trust
and were being managed by it, became final and conclusive. The only
remedy available to Pandit Kamta Prasad was to institute a civil suit under
Section 8 of the Act for setting aside the said finding. In these
circumstances, it was not open to the Registrar to entertain a correction
application and to record that Shri Madan Mohan Mandir is a private trust of
Pandit Kamta Prasad which he did by his order dated 31.12.1956. The High
Court was, therefore, wrong in holding that the order dated 7.2.1955 in case
no.206 was passed on account of clerical mistake.
There is another ground on which the order passed by the High Court
cannot be sustained. As mentioned earlier, the Registrar made a reference
to the Court on 31.12.1983 under Section 26(2) of the Act, which was
registered as Misc. Case No.2 of 1984. The First Additional District Judge,
Hoshangabad decided the said reference by the judgment and order dated
28.3.1985 and held that the order passed by the Registrar on 31.12.1956 is
not in accordance with law and is not binding upon him. He further issued
directions that the trustees and managers of Maheshwari Panchayati Mandir,
Harda shall be handed over the management of Shri Madan Mohan Mandir
and the tenants shall pay rent to them. This order, which is deemed to be a
decree under Sub-section (3) of Section 27 of the Act was challenged by
Pandit Durga Prasad by filing Misc. First Appeal No.384 of 1987 before the
High Court but the same was dismissed by the order dated 26.11.1988. In
this appeal, Seth Chand Ratan and the Registrar of Public Trust were arrayed
as respondent nos.1 and 2 and the nine tenants of the property were arrayed
as respondent nos.3 to 11. The result of the dismissal of the appeal was that
as between the parties the order passed by the First Additional District
Judge, Hoshangabad in Misc. Case No.2 of 1984 became final. It is
noteworthy that the writ petition has been decided on 2.9.1994 long time
after the dismissal of the first appeal. The learned Single Judge did not at
all advert to the fact that against the judgment and decree dated 28.3.1985 of
the First Additional District Judge, Hoshangabad, an appeal had been
preferred in the High Court by Pandit Durga Prasad and the same had been
dismissed on 26.11.1988. It was argued on behalf of the appellant in the
letters patent appeal that in view of the statutory provision of the appeal, the
writ petition ought not to have been entertained. The Division Bench
brushed aside the argument by merely observing that existence of an
alternative remedy does not divest the High Court of its jurisdiction to
entertain a petition under Articles 226 and 227 of the Constitution. In our
opinion, the Division Bench failed to notice that the Statute itself provided a
regular appeal to the High Court against the judgment and order of the Court
(First Additional District Judge) which was deemed to be a decree and the
said remedy had already been availed of by the writ petitioner by filing an
appeal which had been dismissed, and the result whereof was that the
judgment and order of the Court attained finality between the parties. In
almost similar circumstances in Shankar Ramchandra Abhyankar v.
Krishnaji Dattatreya Bapat, 1969 (2) SCC 74, this Court had examined the
propriety of the High Court in entertaining a writ petition. In this case, a
suit for eviction had been filed by a landlord which was decreed by the trial
court and the decree had been confirmed in appeal by the District Judge.
Thereafter, the tenant preferred a revision before the High Court which was
dismissed by a learned Single Judge. The tenant then filed a writ petition
under Articles 226 and 227 of the Constitution challenging the same order of
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the Appellate Court (District Judge), which was allowed by the Division
Bench of the High Court. In appeal this Court set aside the judgment of the
Division Bench of the High Court with the following observations :
". In Chandi Prasad Chokhani v. The State of
Bihar 1962 (2) SCR 276, it was said that save in exceptional
and special circumstances this court would not exercise its
power under Article 136 in such a way as to bypass the High
Court and ignore the latter’s decision which had become final
and binding by entertaining an appeal directly from orders of a
Tribunal. Such exercise of power would be particularly
inadvisable in a case where the result might lead to a conflict of
decisions of two courts of competent jurisdiction. In our
opinion the course which was followed by the High Court, in
the present case, is certainly one which leads to a conflict of
decisions of the same court.
Even on the assumption that the order of the appellate
court had not merged in the order of the single Judge who had
disposed of the revision petition we are of the view that a writ
petition ought not to have been entertained by the High Court
when the respondent had already chosen the remedy under
Section 115 of the Code of Civil Procedure. If there are two
modes of invoking the jurisdiction of the High Court and one of
those modes has been chosen and exhausted it would not be a
proper and sound exercise of discretion to grant relief in the
other set of proceedings in respect of the same order of the
subordinate court. The refusal to grant relief in such
circumstances would be in consonance with the anxiety of the
court to prevent abuse of process as also to respect and accord
finality to its own decisions.
This being the legal position, the writ petition filed by Pandit Durga
Prasad was not maintainable and the High Court committed manifest error of
law in entertaining and allowing the same.
Even otherwise, the view taken by the Division Bench of the High
Court for repelling the objection of the appellant regarding the
maintainability of the writ petition that an alternative remedy does not divest
the High Court of its powers to entertain petitions under Article 226 and 227
of the Constitution, has hardly any application on the facts of the present
case. It has been settled by a long catena of decisions that when a right or
liability is created by a statute, which itself prescribes the remedy or
procedure for enforcing the right or liability, resort must be had to that
particular statutory remedy before seeking the discretionary remedy under
Article 226 of the Constitution. This rule of exhaustion of statutory
remedies is no doubt a rule of policy, convenience and discretion and the
Court may in exceptional cases issue a discretionary writ of certiorari.
Where there is complete lack of jurisdiction for the officer or authority or
Tribunal to take the action or there has been a contravention of fundamental
rights or there has been a violation of rules of natural justice or where the
Tribunal acted under a provision of law, which is ultra vires, then
notwithstanding the existence of an alternative remedy, the High court can
exercise its jurisdiction to grant relief. In the present case, the alternative
remedy of challenging the judgment of the Court was not before some other
forum or Tribunal. On the contrary, by virtue of Sub-section (3) of Section
27 of the Act, the order passed by the Court amounted to a decree against
which an appeal lay to the High Court. When the party had statutory
remedy of assailing the order passed by the District Court by filing an appeal
to the High Court itself, he could not bypass the said remedy and take
recourse to proceedings under Articles 226 and 227 of the Constitution.
Such a course of action may enable a litigant to defeat the provisions of the
Statute which may provide for certain conditions for filing the appeal, like
limitation, payment of court fee or deposit of some amount or fulfilment of
some othre conditions for entertaining the appeal.
For the reasons stated, we are clearly of the opinion that the High
Court committed manifest error of law in entertaining and allowing the writ
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petition filed by Pandit Durga Prasad and, therefore, orders passed by the
learned Single Judge on 2.9.1994 and by the Division Bench in letters patent
appeal on 7.3.1995 are liable to be set aside.
In view of Section 8 of the Act, a person feeling aggrieved by any
finding of the Registrar recorded under Section 6 of the Act, can institute a
civil suit within six months of publication of notice under Sub-section (1) of
Section 7 of the Act to have such finding set aside or modified. Since the
Registrar had passed an order on 31.12.1956 for recording Shri Madan
Mohan Mandir as a private trust of Pandit Kamta Prasad, there was no
occasion for him to file a civil suit to establish his right. Having regard to
the peculiar facts of the present case, we consider it in the interest of justice
that an opportunity be given to the contesting respondents to establish their
right by instituting a civil suit, which they may do within three months from
today.
The appeal is accordingly allowed and the judgment and orders dated
2.9.1994 of the learned Single Judge and that of the Division Bench dated
7.3.1995 are set aside. It will, however, be open to the contesting
respondents to file a suit in the Civil Court in accordance with Section 8 of
the Act within three months from today. The appellants will be entitled to
their costs.