2003 Supreme(SC) 369

2003(3) Supreme 1
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
S. Rajendra Babu & G.P. Mathur, JJ.
Seth Chand Ratan -Appellant
versus
Pandit Durga Prasad (D) by Lrs. & Ors. -Respondents
Civil Appeal No. 5565 of 1995
Decided on 28-3-2003
Counsel for the Parties :
For the Appellant : V.A. Mohta, Sr. Advocate, Subrat Birla and Niraj Sharma, Advocates.
For the Respondent : D. Rama Krishna Reddy, Ms. D. Bharathi Reddy, Chandrasekhar Reddy, Praveen Kumar and R.C. Gubrele, Advocates.

IMPORTANT POINT
The High Court committed a manifest error of law in entertaining and allowing the writ petition filed by Pandit Durga Prasad (respondent). The contesting respondents were permitted to file rent in the Civil Court in accordance with Section 8 of M.P. Public Trust Act, 1951 within 3 months.

Headnote:M.P. Public Trust Act, 1951-Sections 4, 5, 7 and 8-Constitution of India-Articles 226, 227-Writ jurisdiction-Registrar under M.P. Public Trust Act, 1951 holding impugned temple and the shops in the precincts thereof to be property of appellant s public trust-High Court entertaining writ petition of respondent and held this order was passed on account of clerical mistake-Whether High Court was right?-(No)-Whether writ petition was maintainable? (No)-Proper remedy of respondent was suit under Section 8 of the M.P. Public Trust Act-Appeal allowed accordingly.

       Held : 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 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. (Paras 9 and 10)

       Held further : There is another ground on which the order passed by the High Court cannot be sustained. 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. (Para 11)

       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. (Paras 12 and 13)

       Held consequently : 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 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. (Paras 14, 15 and 16)