TRAMBAKESHWAR DEVASTHAN TRUST AND ANR.versusPRESIDENT, PUROHIT SANGH AND ORS.

                         [2011] 12 S.C.R. 992


A      TRAMBAKESHWAR DEVASTHAN TRUST AND ANR.
                                    v.
             PRESIDENT, PUROHIT SANGH AND ORS.
                 (Civil Appeal No. 6639 of 2003)
                         OCTOBER 13, 2011
B
          [R.V. RAVEENDRAN AND A.K. PATNAIK, JJ:l .

         Bombay Public Trusts Act, 1950:

C         ss. 2(1 O)(a), 47(3) - Religious public trust - Temple -
    Appointment of Board of Trustees - Relevant considerations
     for - Held: Charity Commissioner must have regard to the
     question whether the appointment of a particular person would
    promote or impede the execution of the trust and would be in
D    the interest of the public or section of the public who have
     interest in the trust - In the instant case, while deciding the
     composition of trust, High Court considered the provisions of
     ss.2(10) and 47(3) and held that the Tungars, Purohits and
    Pujaris need to be represented in the Board of Trustees of
E   the Temple :_ High Court not only kept in mind the interest of
    the public but also interest of the temple and took a view that
    the appointment of representatives of the Tungars, Purohits
    or Pujaris in the trust would not be in conflict with the interest
    of the trust just because they have interest in the cash
F   offerings or the consideration for the pujas or performance of
    the official puja in the temple - The impugned order of the
    High Court insofar as it held that Tungars, Purohits and
    Pujaris need to be represented in the Board of Trustees by
    one member from each of these classes is upheld - However,
    to ensure that the interest of the public is protected and
G   safeguarded in all the decisions of the Board of Trustees, it
    is directed that, instead of two persons, four persons would be
    appointed by the Charity Commissioner from amongst male/
    female, adult Hindu devotees preferably residents of
    Trimbakeshwar, who would be representing the public in the
H                                 992
     TRAMBAKESHWAR DEVASTHAN TRUST v.                  993
         PRESIDENT, PUROHIT SANGH

Board of Trustees - This would ensure that in a composition   A
of maximum of nine members, four members at least would
represent the public or the devotees of the temple and the
decisions of the Board of Trustees would be in the larger
interest of temple and the public or the devotees - The
impugned judgment of the High Court is modified accordingly   B
- Trust.

     Appellant, a public trust under the Bombay Public
Trusts Act, 1950 was registered in respect of the temple
in 1952. The Charity Commissioner modified the existing       C
scheme for management of the said trust and appointed
5 trustees, one from the Tungars, one from the Purohits
and appointment of remaining 3 was to be done by the
Charity Commissioner himself. The order of the Charity
Commissioner was challenged before the Additional
District Judge who set aside the appointment of the           D
Tungars and the Purohits as trustees and directed that
instead a Civil Judge would be nominated by the District
Judge and the Chief Officer of the Trambakeshwar
Municipality would be appointed as Ex-officio trustee and
the Civil Judge so appointed by the District Judge would      E
be the Chairman of the Board of Trustees. On appeals,
the High Court modified the composition of the trust. It
held that the trust would have a maximum of 7 members
namely, one nominee of the District Judge who would be
the Ex-officio Trustee and Chairman of the Board, the         F
Chief Executive Officer of the Trimbakeshwar Municipal
Council who would be the Ex-officio Trustee and in his
absence, his immediate subordinate nominated by the
Municipal Council, one representative to be nominated by
the Tungar Public Trust, one representative to be             G
nominated by the Purohit Sangh (registered society), one
person to be nominated from amongst the three Pujari
families; and two persons to be appointed by the Charity
Commissioner from amongst male/female, adult Hindu
devotees preferably residents of Trimbakeshwar.               H
    994      SUPREME COURT REPORTS              [2011] 12 S.C.R.

A       In the instant appeals, it was contended for the
    appellants that the High Court was not justified in giving
    representation in the Board of Trustees to the Tungars,
    Purohits and Pujaris, particularly since Tungars and
    Purohits had direct pecuniary interest in the temple.
B
          Disposing of the appeals, the Court
          HELD: 1.1. It will be clear from a reading of Section
     2(10)(a) of the Bombay Public Trusts Act, 1950 that in the
     case of a temple, person who is entitled to attend at or is
:::: in the habit of attending the performance of worship or
     service in the temple, or who is entitled to partake or is
     in the habit of partaking in the distribution of gifts of the
     temple is a person having interest. Section 47(3) of the
     Act provides that the Charity Commissioner shall have
D regard to the factors mentioned in clauses (a), (b), (c), (d)
     and (e) while appointing a trustee. The Charity
     Commissioner, therefore, r.iust have regard to the
     question whether the appointment will promote or
     impede the execution of the trust as mentioned in clause
E (c) and to the interest of the public or section of the public
     who have interest in the trust as mentioned in clause (d).
     The High Court had considered the provisions of
     Sections 2(10) and 47(3) of the Act in the impugned
     judgment and had held that the Tungars, Purohits and
F Pujaris need to be represented in the Board of Trustees.
     A reading of the impugned judgment of the High Court
     would show that the High Court has not only kept in mind
     the interest of the public but also interest of the temple
     and had taken a view that the appointment of
G representatives of the Tungars, Purohits or Pujaris in the
     trust would not be in conflict with the interest of the trust
     only because they have interest in the cash offerings, the
     consideration for the pujas or performance of the official
     puja in the temple. The High Court rightly held that
     Tungars, Purohits and Pujaris have interest in the trust
H
     TRAMBAKESHWAR DEVASTHAN TRUST v.                       995
         PRESIDENT, PUROHIT SANGH

but not necessarily an interest which is in. conflict with         A
the interest of the trust. In most of the decisions of the
Board of Trustees, there would not be a conflict of interest
between that of the trust and that of the Tungars,
Purohits and Pujaris. Rather, representation of Tungars,
Purohits and Pujaris in the Board of Trustees may be               B
necessary to ensure the smooth functioning of the
temple. The impugned order of the High Court in so far
as it held that Tungars, Purohits and Pujaris need to be
represented in the Board of Trustees by one member
from each of these classes is upheld. [Para 8, 9] [1001-           c
C-E-F; 1003-F-H; 1004-A-B]
   Fakir Mohamed Abdul Razak v. The Charity
Commissioner, Bombayand Ors. AIR 1976 Bom.304 -
approved.
     1.2. It is well settled law that the interest of the public   D
is paramount in any religious public trust. To ensure that
the interest of the public is protected and safeguarded in
all the decisions of the Board of Trustees, it is directed
that, instead of two persons, four persons would be
appointed by the Charity Commissioner from amongst                 E
male/female, adult Hindu devotees preferably residents of
Trimbakeshwar, who would be representing the public in
the Board of Trustees. This would ensure that in a
composition of maximum of nine members, four
members at least would represent the public or the                 F
devotees of the temple and the decisions of the Board
of Trustees will be in the larger interest of temple and the
public or the devotees. The impugned judgment of the
High Court is modified accordingly. [Para 10, 11] [1004-
C-E-H]                                                             G
                      Case Law Reference:
    AIR 1976 Bom.304             approved             Para 6
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6639 of 2003.                                                      H
    996       SUPREME COURT REPORTS             [2011] 12 S.C.R.


A        From the Judgment and Order dated 05.08.2002 of the
    High Court of Judicature at Bombay in First Appeal No. 1252
    of 1996.
                                  WITH
B Civil Appeal Nos. 6640, 6641 and 6642 of 2003.

        Jayant Bhushan, Shivaji M. Jadhav and S.K. Jain for the
    Appellants.

          Shekhar Naphade, R.P. Bhatt, Ravindra Keshavrao
c Adsure, Shridhar Y. Chitale, Abhijat P. Medh, Aniruddha P.
    Mayee, Charudatta Mohindrakar, Rucha Mayee, Asha G. Nair
    and J.P. Dhanda for the Respondents.

          The Judgment of the Court was delivered by

D         A. K. PATNAIK, J. 1. These are four appeals against the
  common judgment dated 5th of August, 2002 of the Bombay
  High Court in First Appeal Nos. 1252 of 1996, 1325 of 1996,
  142of1997 and 1322of1996 and relate to the ancient Shiva
  temple situated at Trambakeshwar near Nashik (for short 'the
E temple').

       2. The facts very briefly are that a public trust under the
  Bombay Public Trusts Act, 1950 (for short 'the Act') was
  registered in respect of the temple in 1952 and one Jogalekar
F was appointed as its sole trustee with hereditary succession.
  In 1965, some of the devotees of the temple filed an application
  under Section 50A( 1) of the Act for settlement of a scheme for
  management of the trust. In 1967, a scheme for management
  of the trust was framed but the same was challenged by the
  sole trustee Jogalekar under Section 72 of the Act before the
G District Judge, Nashik. The District Judge, Nashik amended the
  scheme but the amendment was not to the liking of the sole
  trustee Jogalekar and Jogalekar resigned and none of his legal
  heirs were willing to be the trustee of the trust. In 1977, the
  Charity Commissioner modified the scheme and appointed one
H Gokhale as interim sole trustee and directed an inspection.
     TRAMBAKESHWAR DEVASTHAN TRUST v.                           997
   PRESIDENT, PUROHIT SANGH [A.K. PATNAIK, J.]

 After inspection, the Deputy Charity Commissioner submitted           A
 the inspection report narrating the entire history and activities
 of the temple. The inspection report gave the details of the
 traditional role played by Tungars, Purohits and Pujaris in the
 temple for hundreds of years. The Charity Commissioner
 considered the report and by order dated 30.11.1981 modified          B
 the scheme and appointed 5 trustees, one from the Tungars,
 one from the Purohits and remaining 3 to be appointed by the
 Charity Commissioner.

        3. The sole trustee Gokhale, however, challenged the order     C
  dated 30.11.1981 of the Charity Commissioner under Section
  72 of the Act before the District Judge, Nashik. After hearing
  the parties the 5th Additional District Judge, Nashik in his order
  dated 28.12.1993, held that Tungars get offerings made by the
  devotees in the plate situated before the idol and Purohits earn
  income from the devotees who visit the temple and therefore          D
  they have financial interest in the offerings and the devotees
  and their respective participation in the management of the trust
  is likely to be in conflict with the interest of the trust. The
  Additional District Judge held that the apprehension of the
  appellant before him that Tungars and Purohits, if appointed         E
  as trustees, are bound to look after their well being first and
  divert the attention of the devotees was well-founded and
  accordingly allowed the appeal and set aside the appointment
  of one of the Tungars and one of the Purohits as trustees. The
  Additional District Judge directed that instead a Civil Judge,       F
  Senior Division, be nominated by the District Judge, Nashik
  and the Chief Officer of Trambakeshwar Municipality or in his
  absence the next subordinate be appointed as Ex-officio
  trustee and that the Civil Judge, Senior Division, so appointed
  by the District Judge, Nashik shall be the Chairman of the           G
· Board of Trustees.

    4. Aggrieved by the judgment of the Additional District
Judge, Nashik, the President, Purohit Sangh filed First Appeal
No.1252 of 1996, the Tungars filed First Appeal No.1322 of
1996 and the Pujaris represented by Krushnaji Ramchandra
                                                                       H.
    998      SUPREME COURT REPORTS                 [2011] 12 S.C.R.


A       Ruikar and three others filed First Appeal No.1325 of 1996.
        After hearing the parties, the High Court in the impugned
        judgment dated 05.08.2002 has held that the Tungars, Purohits
        as well as Pujaris should get representation in the trust and
        allowed the appeal in part and modified the composition of the
B trust. The High Court held in the impugned order that the trust
        will have a maximum of 7 members namely, one nominee of
        the District Judge who would be the Ex-officio Trustee and
        Chairman of the Board, the Chief Executive Officer of the
        Trimbakeshwar Municipal Council who would be the Ex-officio
...,... Trustee and in his absence, his immediate subordinate
        nominated by the Municipal Council, one representative to be
        nominated by the Tungar Public Trust, one representative to be
        nominated by the Purohit Sangh (registered society), one
        person to be nominated from amongst the three Pujari families;
'.) and two persons to be appointed by the Charity Commissioner
        from amongst male/female, adult Hindu devotees preferably
        residents of Trimbakeshwar.

         5. Learned counsel for the appellant in the three appeals
    submitted that the High Court was not right and justified in giving
E   representation in the Board of Trustees to the Tungars, Purohits
    and Pujaris, particularly when Tungars and Purohits have direct
    pecuniary interest in the temple. He explained that Tungars
    collecteq the offerings made by the devotees to the idol and
    Purohits perform pujas for the devotees and earn money from
F   the devotees. He submitted that the interest of Tungars and
    Purohits were in direct conflict with the interest of the trust and
    they should not have been given the representation in the Board
    of Trustees. By way of illustration, learned counsel for the
    appellant submitted that if the Board of Trustees was to decide
G   to place a cash-box in which the devotees would contribute
    money for the benefit of the temple, the Tungars and Purohits
    or their representatives would not like this decision to come
    through because such a decision would affect their earnings.
    He submitted that in fact in 1997, the Tungars had opposed
H   the installation of cash-box before the idol. He submitted that
     TRAMBAKESHWAR DEVASTHAN TRUST v.                          999 · ·
   PRESIDENT, PUROHIT SANGH [A.K. PATNAIK, J.]

the Additional District Judge, Nashik was therefore right in             A
 coming to the conclusion that Tungars 'and Purohits have
financial interest in the offerings and the devotees and their
appointment as trustees will not be in the interest of the trust.
He referred to the provisions of Section 47(3) of the Act to show
that the Charity Commissioner shall have regard to the question       B
whether the appointment of a trustee will promote or impede
the execution of the trust and to the interest of the public or the
section of the public who have interest in the trust. He submitted
that it is the devotees of the temple who have got maximum
interest in the temple whereas Tungars and Purohits have their        c
own interest as against the interest of the temple and should
not have been appointed as trustees.
       6. Learned counsel appearing for the respondents referred
 to the inspection report to show the important functions
 performed by theTungars, Pi.Jrohits and Pujaris at the temple        D
 for the last hundred of years. They also referred to the reasons
 given by the Joint-Charity Commissioner in his· order dated
 30.11.1981 for giving representations to the Tungars, Purohits
 and Pujaris in the Board of Trustees. They submitted that the
 High Court has given good reasons in the impugned judgment           E
 to show that there is no conflict between the interest of the
 Tungars, Purohits and Pujaris and the interest of the trust.
 Learned counsel for the respondents submitted that in the Fakir
 Mohamed Abdul Razak vs. The Charity Commissioner,
Bombay and Ors~ (AIR 1976 Bom.304) a Division Bench of                F
the High Court while deciding a matter under the Act has held
in paragraph 37 that the court has to consider while settling the
Scheme the past history of the institution and the way in which
the management of the trust has been carried on till the
settlement of the scheme and the appointment of the trustees.         G
They submitted that the Joint-Charity Commissioner and. the
High Court have taken into consideration the past history of the
trust and in particular the role played by the Tungars, Purohits
and Pujaris and held that they should be given representations
in the Board of Trustees. They submitted that the appointment         H
    1000    SUPREME COURT REPORTS                  [2011] 12 S.C.R.

A of representatives of the Tungars, Purohits and Pujaris does
  not in any way impede the execution of the trust. They argued
  that Tungars, Purohits and Pujaris, all are persons who have
  interest in the trust within the meaning of Section 2(10) of the
  Act and they are entitled to be represented in the trust.
B      7. Section 2(10) of the Act and Section 47(3) of the Act
    which are relevant for deciding the issues raised before us are
    quoted hereinbelow:
        "Section 2(10) "Person having interest" includes -
c       (a) in the case of a temple, person who is entitled to attend
        at or is in the habit of atteQding the performance of worship
        or service in the temple, or who is entitled to partake or is
        in the habit of partaking in the distribution of gifts thereof,
        (b) in the case of a math, a disciple of the math or a person
D
        of the religious persuasion to which the math belongs,
        (c) in the case ofwakf, a person who is entitled to receive
        liny pecuniary or other benefit from the wakf and includes
        a person who has right to worship or to perform any
E       religious rite in a mosque, idgah, imambara, dargah,
        maqbara or other religious institution connected with the
        wakf or to participate in any religious or charitable
        institution under the wakf,
        (d) in the case of a society registered under the Societies
F       Registration Act, 1860, any member of such society, and
        (e) in the case of any other public trust, any trustee or
        beneficiary;
        47. Power of Charity Commissioner to appoint,
G       suspend, remove or discharge trustees and invest
        property to new trustees : (3) In appointing a trustee
        under sub-section (2), the Charity Commissioner shall
        have regard
               (a) to the wishes of the author of that trust;
H
     TRAMBAKESHWAR -OEVASTHAN TRUST v.        1001
   PRESIDENT, PUROHIT SANGH [AK. PATNAIK, J.]

             (b) to the wishes of the persons, if any, empowered        A
             to appoint a new trustee; . ·
             (c) to the question whether the appointment will
             promote or impede the execution of the trust;
             (d) to the interest of the public or the section of the    8
             public who have interest in the trust; and
             (e) to the custom and usage of the trust.
 It will be clear from a reading of Section 2(1 O)(a) of the Act that
 in the case of a temple, person who is entitled to attend at or        c
 is in the habit of attending the performance of worship or
 service in the temple, or who is entitled to partake or is in the
 habit of partaking in the distribution of gifts of the temple is a
 person having interest. Section 47(3) of the Act quoted above
 provides that the Charity Commissioner shall have regard to
                                                                        0
 the factors mentioned in clauses (a), (b), (c), (d) and (e) while
 appointing a trustee. The Charity Commissioner, therefore,
 must have _,  regard to the question
                                 .
                                      whether the appointment will
 promote or impede the execution of the trust as mentioned in
 clause (c) and to the interest of lhe public or section of the
.public who have interest in the trust as mentioned in clause (d).      E
    8. We fintl that the High Court has considered the
provisions of Sections 2(10) and 47(3) of the Act in the
impugned judgment and has held that the Tungars, Purohits and
Pujaris need to be represented in the Board of Trustees.                F
Paragraphs 15 and 16 of the imp.ugned judgment of the High
Court are quoted hereinbelow:
     "15. In a case of a religious public trust, undoubtedly, the
     Authority or the Court will have to keep in mind the'
     requirements of Section 47(3) of the Act and the interest          G
     of or the proper management and' administration of such
     trust. The persons to be appointed, by law, are required
     to be persons who have interest in the affairs of the trust
     which is real, substantive and an existing one, though not
     direct one. It is well settled that merely being resident of       H
     1002    SUPREME COURT REPORTS                     [2011] 12 S.C.R.

A       the area is not enough for being labeled as a suitable and
        fit person. At the same time the legislative scheme would
        suggest that the management and administration of a
        public religious trust such as the Trimbakeshwar
        Devasthan should be entrusted to such person so as to
B       preserve the interest of the public or the section of the
        public who have interest in the trust. Obviously, regard
        being had to the fact that the appointment will promote and
        not impede the execution of the trust or its policies. By the
        very nature of the activities in a place used as a place of
c       public religious worship and dedicated to or for the benefit
        of or used as of right by the Hindu community or any
        Section thereof, it is antithesis to a private and closed door
        management of its affairs. On the other hand there has to
        be complete openness and transparency in its
        administration and above all by observing democratic
D
        values or principles. To put it differently, it is public trust "for
        the community, by the community and of the community"
        or any section thereof. If such is tlie purport of the Trust then
        diversified representation and involvement of all concerned
        or the section o~ the pubic who have interest in the Trust
E
        and in particular associated with the day to day activities
        of the temple of the devasthan is inevitable - and the most
        appropriate step to further and promote the objectives of
        such a Trust.

F      16. Once we reach at this position, the next question that
       needs to be examined is; whether persons belonging to a
       particular Section can be generally disqualified on the
       ground of "conflict of interest" with the affairs of the trust of
       fact attached to an individual? I have no hesitation to hold
       that disqualification is essentially of an individual and
G
       cannot be because of the fact that the person belongs to
       the family of "Tungar'', "Pujari" or "Purohit" as such, as the
       case may be. A person can be said to be disqualified or
       would render himself unfit for being appointed as the
       trustees only when he has direct interest in the trust or the
:H
    TRAMBAKESHWAR DEVASTHAN TRUST v.          1003
  PRESIDENT, PUROHIT SANGH [A.K. PATNAIK, J.]

     devasthan and is hostile to the affairs of the Trust and his   A
     object is to see that the Trust is destroyed. To put it
     differently, there is a perceptible difference between
     "person having interest in the trust" and "person having
     conflict of interest". The former is the quintessence for
     being eligible to be considered or for being appointed as      B
    the trustee. This mandate flows from the provisions of
     Section 47 read with Section 2(1) of the Act. Therefore,
     merely because the ''Tungars" have the right to take away
    the entire cash offerings in the form of notes or coins near
    the idol or the threshold of the Garbhagriha in a plate or      c
    that the "Purohits" entertain the Yajmans or offer their
    services for consideration or the "Pujaris" are engaged in
    the performance of the official puja in the temple, cannot
    be said to be hostile to the affairs of the Trust or having
    direct interest so as to conflict with the administration and
                                                                    0
    management of the Trust. As observed earlier Section
    2( 10) of the Act would envelope even the beneficiary of the
    Trust. Understood thus, it is incomprehensible that the
    ''Tungars", "Purohits" or the "Pujaris" in the devasthan can
    be singled out as a class from the administration and
    management of the Trust. This view would answer point           E
    number (iii) and (iv) above."
      9. A reading of paragraphs 15 and 16 of the impugned
judgment of the High Court quoted above shows that the High
Court has not only kept in mind ihe interest of the public but F
also interest of the temple and has taken a view that the
appointment of representatives of the Tungars, Purohits or
Pujaris in the trust would not be in conflict with the interest of
the trust only because they have interest in the cash offerings,
the consideration for the pujas or performance of the official G
puja in the temple. The High Court has rightly held that Tungars,
Purohits and Pujaris have interest in the trust and not .
necessarily an interest which is in conflict with the interest of
the trust. We are also of the view that in most of the decisions
of the Board of Trustees, there would not be a conflict of interest
between that of the trust and that of the Tungars, Purohits and H
    1004     SUPREME COURT REPORTS                    [2011] 12 S.C.R.


A. Pujaris. Rather, representation of Tungars, Purohits and Pujaris
   in the Board of Trustees may be necessary to ensure the
   smooth functioning of the temple. We are, therefore, not inclined
   to set aside the impugned order of the High Court in so far as
   it has held that Tungars, Purohits and Pujaris Aeed to be
B represented in the Board of Trustees by one member from each
   of these classes.
       10. Law is however well settled that the interest of the
  public is paramount in any religious public trust. The Division
  Bench of the High Court in Fakir Mohamed Abdul Razak vs.
C The Charity Commissioner, Bombay and Ors. (supra) has
  held in para 35:
         "It is well settled ~hat in suits like the suits for settling the
         Scheme, the Court has a duty once it is found that it is a
         Trust for public purposes, to consider what is best in the
D        interests of public. Settling a scheme is one of the most
         important relieves relating to the administration of public
         trust. The primary duty of the Court is to consider the
         interest of the public for whose benefit the trust has bee'n
         created ........ "
E
  To ensure that the interest of the public is protected and
  safeguarded in all the decisions of the Board of Trustees, we
  hold that, instead of two persons, four persons will be appointed
  by the Charity Commissioner from amongst male/female, adult
F Hindu devotees preferably residents of Trimbakeshwar, who will
  represent the public in the Board of Trustees. This will ensure
  that in a composition of maximum of nine members, four
  members at least will represent the public or the devotees of
  the temple and the decisions of the Board of Trustees will be
G in the larger interest of temple and the public or the devotees.
        11. The impugned judgment of the High Court is modified
    accordingly and the appeals stand disposed of. There shall be
    no order as to costs.

H D.G.                                          Appeals disposed of.