Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2607 OF 2013
Janardan Dagdu Khomane and Another ... Appellants
versus
Eknath Bhiku Yadav & Ors. ... Respondents
J U D G M E N T
Indira Banerjee, J.
1. This appeal is against a final judgment and order
th
dated 6 February, 2006, whereby a Division Bench of
Bombay High Court allowed Writ Petition No.1442 of 1987
filed by the Respondent Nos.1,2 and 3, and directed the
concerned authorities to hold proceedings under Section
32(G) of the Bombay Tenancy and Agricultural Lands Act,
1948 [hereinafter referred to as “the 1948 Act” to fix
Signature Not Verified
the purchase price of 6 acres and 19 gunthas of lands
Digitally signed by
SANJAY KUMAR
Date: 2019.09.18
17:08:26 IST
Reason:
at Pimpli Village in the Baramati Taluk in Pune
district, hereinafter referred to as the “said land”.
2
2. The appellants are the trustees of Shree Maruti Deo
Trust Pimpli Limtek, registered as a public trust under
the Bombay Public Trusts Act, 1950, hereinafter referred
to as the “Public Trusts Act”. By amendment in 2012,
the Public Trusts Act was renamed as “The Maharashtra
Public Trusts Act, 1950”. It is the case of the
appellants that, since time immemorial, the said land
has belonged to the Maruti Dev Temple. The said land is
classified in the revenue records as Class III Devasthan
Inam land belonging to the deity Maruti Dev. The suit
property, according to the appellants, belongs to an
institution of public religious worship.
3. There cannot be any dispute that the suit land
belonged to the Devasthan. According to the appellants,
initially in 1922, one Sitram Narayan Deshpande was put
in possession of the suit land in view of the service
rendered by him to the temple. Later, the land was let
out to the forefathers of respondent nos. 1 to 4.
4. The respondent nos. 1 to 4, claim to be the tenants
of the respondent nos. 5 and 6. The respondent nos. 1
to 4 claim to have been in possession of the said land
on 1.4.1957 i.e. the “Tillers Day” under the 1948 Act,
now known as the Maharashtra Tenancy and Agricultural
Lands Act. The proforma respondents in this appeal,
3
being the trustees of the Trust, were deleted from the
array of parties by an order of this Court dated
13.2.2013.
5. The 1948 Act was amended by Bombay Act No. 15 of
1957, Bombay Act No. 38 of 1957 and Bombay Act No. 63 of
1958. The relevant amended sections provide:
“32. Tenants deemed to have purchased land
on tillers’ day
(1) On the first day of April 1957 (hereinafter
referred to as "the tillers day") every tenant
shall, [subject to the other provisions of this
section and the provisions of] the next succeeding
sections, be deemed to have purchased from his
landlord, free of all encumbrances subsisting
thereon on the said day, the land held by him as
tenant, if:
(a) such tenant is a permanent tenant thereof and
cultivates land personally;
(b) such tenant is not a permanent tenant but
cultivates land leased personally; and
(i) the landlord has not given notice of
termination of his tenancy under section 31; or
(ii) notice has been given under section 31, but
the landlord has not applied to the Mamlatdar on
or before the 31st day of March 1957 under
section 29 for obtaining possession of the land;
or
(iii) the landlord has not terminated his tenancy
on any of the grounds specified in section 14, or
has so terminated the tenancy but has not applied
to the Mamlatdar on or before the 31st day of
March, 1957 under section 29 for obtaining
possession of the lands:
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32G. Tribunal to issue notices and determine price
of land to be paid by tenants. (1) As soon as may
be after the tillers’ day the Tribunal shall publish
or cause to be published a public notice in the
prescribed form in each village within its
jurisdiction calling upon:
(a) all tenants who under section 32 are deemed to
have purchased the lands,
(b) all landlords of such lands, and
(c) all other possession interested therein,
to appear it on the date specified in the notice.
The tribunal shall issue a notice individually to
each such tenant, landlord and also, as far as
practicable, other persons calling upon each other
to appear before it on the date specified in the
public notice.
(2) The Tribunal shall record in the prescribed
manner the statement of the tenant whether he
is or is not willing to purchase the land held
by him as tenant
(3) Where any tenant fails to appear or makes a
statement that he is not willing to purchase
the land, the Tribunal shall by an order in writing
declare that such tenant is not willing to purchase
the land and that the purchase is ineffective:
Provided that, if such order is passed in
default of the appearance of any party, the
Tribunal shall communicate such order to the parties
and any party on whose default the order was passed
may within 60 days from the date on which the
order was communicated to him apply for the review
of the same.
(4) If a tenant is willing to purchase, the
Tribunal shall, after giving an opportunity to the
tenant and the landlord and all other persons
interested in such land to be heard and after
holding an inquiry, determine the purchase price of
such land in accordance with the provisions of
section 32H and of subsection (3) of section 63A:
Provided that, where the purchase price in
accordance with the provisions of section 32H is
mutually agreed upon by the landlord and the tenant,
the Tribunal after satisfying itself in such manner
as may be prescribed that the tenants consent to the
5
agreement is voluntary may make an order determining
the purchase price and providing for its payment in
accordance with such agreement.
(5) In the case of a tenant who is deemed to have
purchased the land on the postponed date the
Tribunal shall, as soon as may be, after such date
determine the price of the land”.
6. It is the case of the appellants, that Section 88B,
inserted by amendment in the 1948 Act by Bombay Act
No.38 of 1957, exempts land which is the property of a
trust for, inter alia, educational purposes or an
institution for public religious worship, from certain
provisions of the 1948 Act including Section 32 and sub
Sections 32A to 32 R of the said Act, provided that such
trust is or is deemed to be registered under the Public
Trusts Act, and the entire income of such lands is
appropriated for the purposes of such Trust.
7. The appellants contend that Section 32 has no
application to land held by a Public Trust. Therefore,
a tenant on land held by a Public Trust does not become
purchaser either on “Tillers day” or on any subsequent
date. Counsel appearing on behalf of the appellants has
emphatically argued that the Maruti Dev Temple Devasthan
has, all along been a Public Trust.
8. On 18.9.1983, the Gram Sabha decided to get the
Trust registered as a Public Trust. Accordingly, an
6
application no. 1484/83 was filed before the Deputy
Charity Commissioner by one of the trustees, for
registration of Shri Maruti Dev Trust, Pimpli, Limtek,
under Section 19 of the Public Trusts Act. On 8.8.1984,
the Trust came to be registered under PTR No. A/1656
(Pune) after necessary enquiry.
9. Questioning the registration of the Trust, the
respondent no.1, father of the respondent nos. 2 to 4,
filed a Revisional Application No. 21 of 1985 before the
Joint Charity Commissioner, Pune, who remanded the
matter back to the Deputy Charity Commissioner, on the
ground that no personal notice had been given to the
concerned respondents.
10. On or about 9.7.1986, after registration of the
Trust, the Trustee in Charge of the Trust, filed an
application under Rule 52(1) of the Bombay Tenancy and
Agriculture Land Rules, 1956 before the Collector for
exemption of the said land under Section 88B of the 1948
Act. It appears that the Pune Archives recorded the
land in question as Class III Devasthan Inam Land of the
Village Pimpli, belonging to the Maruti Dev Trust,
managed by Shri Narayan Deshpande, as per decision no.
196 dated 3.7.1858.
11. The Additional Collector, after holding enquiry
7
under Section 88B (2) of the 1948 Act, issued a
certificate dated 21.1.1987, certifying that the Trust
is “an institution of public religious worship
registered under the Bombay Public Trust Act”. The
certificate further certified that the Trust was
eligible for exemption under Section 88B of the 1948 Act
in respect of the land in question. The appellants
assert that the certificate was issued after notice of
inquiry to the respondents who were given the
opportunity of crossexamining the Trustees.
12. On or about 13.3.1987, the respondent no.1 and
father of respondent nos. 2 to 4, filed the above
mentioned writ petition being WP No. 1442 of 1987 in
the Bombay High Court, challenging the validity of the
exemption certificate.
13. Sometime in 1997, the respondent no.2 filed an
Inquiry Application No. 2008 of 1997 for registration of
a Trust consisting of new Trustees in the name of Shri
Maruti Dev Trust.
14. The appellants contend that the Inquiry Application
was misconceived and not maintainable since the
respondent nos. 1 to 4, who claim to be the tenants in
the suit property, could not seek registration of the
Trust, as such a claim would be contrary to and
8
inconsistent with their earlier claim of tenancy.
15. The Deputy Charity Commissioner, after considering
the allegations and counter allegations of the
respective parties in the Inquiry Application No. 1484
of 1983 and 2008 of 1997, passed an order dated
15.9.2001 holding that Maruti Dev Trust was already in
existence and it was a Public Trust under the Public
Trusts Act. Accordingly, Application no. 2008 of 1997,
filed by the respondent was rejected. The Application
No. 1484/1983 stood allowed.
16. Aggrieved by the order dated 15.9.2001, the
respondent no. 1, father of respondent nos. 2 to 4,
filed an Appeal No. 101/2001 before the Joint Charity
Commissioner, Pune. The appeal was dismissed by the
Joint Charity Commissioner by an order dated 5.7.2005,
holding that the claim of the respondent to be the owner
of the Trust property was adverse to the interest of the
Trust. The existing Trustees were directed to take
necessary steps for getting a scheme framed by the
Competent Authority for proper administration of the
Trust.
17. By the Judgment and order dated 6.2.2006 under
appeal, the Division Bench of the Bombay High Court
allowed writ Petition, being W.P. No. 1442 of 1987
9
filed by the respondent no.1, father of the respondent
Nos. 2 to 4, challenging the validity of the Exemption
Certificate dated 21.1.1987 issued by the Collector, and
quashed the impugned Exemption Certificate. The High
Court held that it was not open to the Collector to
grant a certificate of Exemption to the Trust as the
land had vested in the writ petitioners on 1.04.1957.
The High Court directed the authorities concerned to
hold proceedings under Section 32 G of the 1948 Act to
fix the purchase price at an early date.
18. The short question in this appeal is, whether the
High Court was justified in quashing the Exemption
Certificate issued by the Collector in terms of Section
88B of the 1948 Act in favour of the Trust,
notwithstanding the fact that the suit property belonged
to “an institution of public religious worship”.
19. The High Court has allowed the writ petition, on
the ground that the Trust was registered for the first
time on 8.8.1984. The High Court held that as the Trust
was not registered on 1.04.1957, i.e., Tillers’ Day the
tenants who were in possession of the said land on that
day became deemed purchasers, and once the tenant became
a deemed purchaser, the ownership of the land vested in
him. The holders could not be divested of their
10
ownership by subsequent registration of the Trust.
20. In allowing the writ petition, the High Court has
relied upon two earlier decisions of the Bombay High
1
Court, and
Laxminarayan Temple vs. L.M. Chandore
Chhatrapati Charitable Devasthan Trust vs. Parisa Appa
2
Bhoske and others .
21. The High Court found that the 1948 Act, as
initially enacted, granted protection against eviction
to tenants of agricultural lands. It did not provide
for any automatic purchase of the lands in occupation of
tenants. Upon insertion of Section 32 to 32 R along
with some other Sections by amendment of the 1948 Act by
Bombay Act No.XIII of 1957, subject to certain
exceptions, tenants who remained in possession on
Tillers day i.e., 1.04.1957 became owners of the land in
their possession.
22. The relevant provisions of Section 88B inserted by
amendment of the 1948 Act in the same year, that is,
1957, is set out hereinbelow for convenience:
“88B. Exemption from certain provisions to land of
local authorities, universities and trusts.
(1) [(1) Nothing in foregoing provisions except
sections 3, 4B, 8, 9, 9A, 9B, 9C, 10, 10A, 11, 13
and 27 and the provisions of Chapters VI and VIII
in so far as the provisions of the said Chapters
1 AIR 1970 Bom 23
2 1979 Mh.L.J.163
11
are applicable to any of the matters referred to in
the sections mentioned above shall apply,
(a) to lands held or leased by a local
authority, or University established by law in
the [2] [Bombay area of the State of
Maharashtra]; and
(b) to lands which are the property of a trust
for an educational purpose, [3] [a hospital,
Panjarapole, Gaushala] or an institution for
public religious worship;
Provided that,
(i) such trust is or is deemed to be registered
under the Bombay Public Trust Act, and
(ii) the entire income of such lands is
appropriated for the purposes of such trust;”
23. Section 88B provides for exemption of land being
the property of a Trust, for inter alia public
religious worship and/or educational and/or social
purpose from the vesting provisions. The High Court
noted that while the petitioners were tenants on Tillers
day i.e. 1.04.1957, the Trust was registered for the
th
first time on 8 August, 1984.
24. Relying on Laxminarayan Temple (supra) the High
Court held that in order for the Trust to claim an
exemption under Section 88B of the 1948 Act, the Trust
had to be registered before 1.04.1957, for if the trust
was not registered on 1.04.1957, a tenant would become a
deemed purchaser on that date and once the tenant became
12
a deemed purchaser the ownership of the land which
vested in the tenant would not be divested by subsequent
registration of the Trust.
25. In Laxminarayan Temple (supra), a Division Bench of
the Bombay High Court held that the word “trust” in
Clause B of Section 88B(1) of the 1948 Act is not
confined to a trust for an educational purpose but it
covers trusts for other purposes mentioned in Clause (b)
including a trust for an institution for public
religious worship. However, a Trust is not entitled to
the exemption till it fulfills two requirements
mentioned in the proviso, that is, (i) the trust must
either be registered, or (ii) deemed to be registered
under the Bombay Public Trusts Act.
26. The High Court also relied upon Chhatrapati
Charitable Devasthan Trust (supra). In the aforesaid
case, a Bench of coordinate strength of the same High
Court held that even where an application for
registration of a Trust had been made before 1957, but
the registration had not actually been effected before
1.04.1957, the tenant would become the deemed owner of
the land and, therefore, a certificate under Section 88B
of the 1948 Act could not be granted, rejecting the
argument that registration relates back to the date of
13
the application.
27. The High Court rejected the submission that the
decisions of Bombay High Court in Laxminarayan Temple
(supra) and Chhatrapati Charitable Devasthan Trust
(supra) required reconsideration and should therefore be
referred to a larger Bench.
28. The Bombay Public Trusts Act was enacted to make
provisions for the better administration of public
religious and charitable trusts in the State of Bombay.
Before the Public Trusts Act was passed, public trusts
in the Bombay State were governed by various acts
including the Mussalman Wakf (Bombay Amendment) Act of
1935, the Parsi Trusts Registration Act, 1936, the
Religious Endowments Act, 1863 and the Charitable and
Religious Trusts Act, 1920.
29. The Public Trusts Act, as stated in its preamble,
was enacted to regulate and to make better provisions
for public trusts within the State of Bombay. Before
the Public Trusts Act was enacted, numerous ‘Mahants’,
‘Pujaris’, ‘Acharya’ etc. thrived and flourished on the
income of temples and/or deities. Donations/offerings
made by innumerable devotees visiting the temples were
seldom accounted for by the ‘Mahants’, ‘Pujaris’, etc.
who exercised the rights of ownership over the temples
14
and/or their properties.
30. The Public Trusts Act, which, as stated
hereinbefore, is intended to regulate the administration
of public religious and charitable trusts in the
erstwhile State of Bombay, now the States of Maharashtra
and Gujarat, creates for the first time a unified
special organization to deal with charity matters.
Trusts, long in existence, came to be regulated by the
the Public Trusts Act. The Mahants, pujaris etc. who
administer properties of the deity as trustees, were
brought within the ambit of the Public Trusts Act.
31. Section 2 (13) of the Public Trusts Act defines a
public trust as follows:
“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”
32. Counsel appearing on behalf of the appellant has
very rightly argued, that in view of the definition of
‘Public Trust’ in the Public Trusts Act, which also
includes constructive trust either for a public
religious or charitable purpose, the absence of a deed
15
of trust would not make any difference to the position
of the Trust as a “public trust”.
33. A constructive trust arises by operation of law,
without regard to the intention of the parties to create
a trust. It does not require a deed signifying the
institution of trust. Under a constructive trust, the
trust arises by operation of law as from the date of the
circumstances which give rise to it. The function of
the court is only to declare that such a trust has
arisen in the past.
34. Constructive trust can arise over a wide range of
situations. To quote Cardozo, J., “ a constructive trust
is a formula through which the conscience of equity
finds expression.”
35. Story on Equity Jurisprudence has explained
‘Constructive Trust” as:
"One of the most common cases in which a Court of
equity acts upon the ground of implied trusts in
invitum, is where a party has received money
which he cannot conscientiously withhold from
another party. It has been well remarked, that
the receiving of money which consistently with
conscience cannot be retained is, in equity,
sufficient to raise a trust in favour of the
party for whom or on whose account it was
received. This is the governing principle in all
such cases. And therefore, whenever any
controversy arises, the true question is, not
whether money has been received by a party of
16
which he could not have compelled the payment,
but whether he can now, with a safe conscience,
ex aequo et bono, retain it. Illustrations of
this doctrine are familiar in cases of money paid
by accident, or mistake, or fraud. And the
difference between the payment of money under a
mistake of fact, and a payment under a mistake of
law, in its operation upon the conscience of the
party, presents the equitable qualifications of
the doctrine in a striking manner. It is true
that Courts of Law now entertain jurisdiction in
many cases of this sort where formerly the remedy
was solely in Equity; as for example, in an
action of assumption for money had and received,
where the money cannot conscientiously be
withheld by the party; following out the rule of
the Civil Law; Quod condition in debiti non datur
uitra, quam locupletior factus est, qui accepit.
But this does not oust the general jurisdiction
of Courts of Equity over the subjectmatter,
which had for many ages before been in full
exercise, although it renders a resort to them
for relief less common, as well as less
necessary, than it formerly was. Still, however,
there are many cases of this sort where it is
indispensable to resort to Courts of Equity for
adequate relief and especially where the
transactions are complicated, and a discovery
from the defendant is requisite."
36. Section 90 of the Trusts Act states that if
there is a person in a fiduciary relation to another,
he cannot take advantage of that position so as to
gain something exclusively for himself, which he
otherwise would not have obtained, but for the
position which he held.
37. Section 94 of the Indian Trusts Act, 1882 has
17
allowed the creation of a constructive trust when
situations went beyond the confines of the Act.
Section 94 has later been repealed by the Benami
Transactions Prohibitions Act, 1988. Section 94 of
the Trusts Act read :
"94. Constructive trusts in case not expressly
provided for
In any case not coming within the scope of any of
the preceding sections, where there is no trust,
but the person having possession of property has
not the whole beneficial interest therein, he
must hold the property for the benefit of the
persons having such interest, or the residue
thereof (as the case may be), to the extent
necessary to satisfy their just demands."
3
38. In Gopal L. Raheja v. Vijay B. Raheja , the
Bombay High Court restrained itself from exercising
its equitable jurisdiction to apply the English
doctrine of constructive trust when the legislature
had specifically deleted it from the Indian Trusts
Act.
39. In our view, the repeal of Section 94 of the Act
does not put any fetter in declaring a trust, even if
the situation falls outside the purview of the Act.
Its jurisdiction can be derived from Section 151 of
CPC and Section 88 of the Indian Trusts Act.
40. There can be no doubt that the Trust was all
3 2007 (4) Bom CR 288
18
along a public trust within the meaning of Section
2(13) of the Bombay Public Trusts Act. The Trust has
rightly been registered under the Public Trusts Act,
after due enquiry. However, all public trusts are
not entitled, as of right, to the exemption under
Section 88B of the 1948 Act. The said section only
applies to lands which are property of a trust inter
alia for educational purpose or for public religious
purpose provided such trust is deemed to be
registered or is registered under the Public Trusts
Act.
41. Learned counsel appearing on behalf of the
appellant emphatically argued that the trust being a
‘public trust’ within the meaning of the Public
Trusts Act, the Trust is deemed to have been
registered as and when the Public Trusts Act came
into force, long before Tillers Day, i.e., 1.4.1957.
The Public Trusts Act recognizes even constructive
trusts.
42. The expression “deemed to have been registered”
is neither defined in the Public Trusts Act nor
defined in the Indian Trusts Act, 1882. Section 28
of the Public Trusts Act provides:
“ 28. Public trust previously registered under the
enactment specified in Schedule
19
(1) All public trusts registered under the
provisions of any of the enactments specified in
Schedule A and Schedule AA shall be deemed to
have been registered under this Act from the date
on which this Act may be applied to them. The
Deputy or Assistant Charity Commissioner of the
region or subregion within the limits of which a
public trust had been registered under any of the
said enactments shall issue notice to the trustee
of such trust for the purpose of recording
entries relating to such trust in the register
kept under section 17 and shall after hearing the
trustee and making such inquiry, as may be
prescribed, record findings with the reason
therefor. Such findings shall be in accordance
with the entries in the registers already made
under the said enactment subject to such changes
as may be necessary or expedient.
(2) Any person aggrieved by any of the findings
recorded under subsection (1) may appeal to the
Charity Commissioner.
(3) The provisions of this Chapter shall, so
far as may be, apply to the making of entries in
the register kept under section 17 and the
entries so made shall be final and conclusive.”
Only those Trusts which were registered under
the enactments specified in Schedule A and Schedule
AA are to be deemed to have been registered under the
Public Trusts Act. There is no other provision in
the Public Trusts Act with regard to deemed
registration.
43. The legislature has, in its wisdom, very
consciously provided that all public trusts
registered under the provisions of the enactments
specified in Schedule ‘A’ & ‘AA’ to the Public Trusts
20
Act shall be deemed to have been registered under the
Public Trusts Act. If it were the intention of the
legislature that all public trusts should be deemed
to have been registered under the State Public Trusts
Act, the legislature would have made an express
provision to that effect. It is not for the Court to
read into statute words and/or expressions which are
not there in the statute.
44. The judgment of this Court in Mahant Ramswarup
Guru Chhote Balakdas vs. Motiram Khandu Patil and
4
Others , cited on behalf of the respondents is
clearly distinguishable since this Court considered
the expression “deemed to be registered” in Section
28 of the State Public Trusts Act in the context of a
trust situate in Burhanpur, Madhya Pradesh, outside
the State of Maharashtra.
45. This Court, in effect and substance, said that
the reorganization of States in 1956 and 1960,
consequential to which new areas which originally
formed part of the Madhya Pradesh State became part
of the Maharashtra State, necessitated amendments in
the Bombay Trusts Act to incorporate Schedule AA,
which, read with Section 28, inter alia, provided
that trusts registered under the Madhya Pradesh
4 AIR 1968 SC 422
21
Trusts Act, 1951 would be deemed to have been
registered under the Public Trusts Act. This was to
save trusts already registered under the Madhya
Pradesh Trusts Act, 1951, in areas which later became
part of Maharashtra, from the trouble of having to
once again get itself registered under the Bombay
Act.
46. This Court found that where the trust was
administered outside the State of Maharashtra, with
bulk of its properties except a few plots of land
situate outside Maharashtra, such trusts would not be
governed by the Public Trusts Act of the State of
Maharashtra and would not, therefore, fall within the
ambit of Section 28 of the said Act. Thus, such
trusts, though registered under the Madhya Pradesh
Public Trusts Act, 1951, would not be deemed to have
been registered under the Bombay Act.
47. As observed above, the Trust, being a public
trust, has rightly been registered on 8.8.1984, after
due enquiry. The registration of the Trust under the
Public Trusts Act cannot be questioned. However, the
registration is prospective, w.e.f. 8.8.1984. The
respondents became deemed purchasers on Tillers’ Day,
that is, 1.4.1957. The right under Section 32 of the
22
1948 Act accrued to the respondents on that day. The
respondents cannot be divested of such right upon
subsequent registration of the Trust. It may be true
that a Trust for a religious purpose has the right to
own and acquire property. However, such property may
be taken away by authority of law. The validity of
Section 32 of the Public Trusts Act is not in
question.
48. Accordingly, the judgment and order passed by
the High Court is affirmed and the appeal is
dismissed without any order as to costs.
...................J.
(R. BANUMATHI)
...................J.
(INDIRA BANERJEE)
SEPTEMBER 18, 2019
NEW DELHI