Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6639 OF 2003

Trambakeshwar Devasthan Trust & Anr. … Appellants

Versus

President, Purohit Sangh & Ors. …

Respondents

WITH

CIVIL APPEAL NOs.6640 OF 2003, 6641 OF 2003

AND 6642 OF 2003

J U D G M E N T

A. K. PATNAIK, J.

These are four appeals against the common

judgment dated 5

th

of August, 2002 of the Bombay High

Court in First Appeal Nos. 1252 of 1996, 1325 of 1996, 142

of 1997 and 1322 of 1996 and relate to the ancient Shiva

temple situated at Trambakeshwar near Nashik (for short

‘the temple’).

Page 2 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 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 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 Gokhale as interim sole trustee and

directed an inspection. After inspection, the Deputy

Charity Commissioner submitted 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

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Page 3 for hundreds of years. The Charity Commissioner

considered the report and by order dated 30.11.1981

modified 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 dated 30.11.1981 of the Charity Commissioner

under Section 72 of the Act before the District Judge,

Nashik. After hearing the parties the 5

th

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 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 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

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Page 4 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, 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

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 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 trust. The High

Court held in the impugned order that the trust will have a

maximum of 7 members namely, one nominee of the

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Page 5 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 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 collected the offerings

made by the devotees to the idol and Purohits perform

pujas for the devotees and earn money from the devotees.

He submitted that the interest of Tungars and Purohits

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Page 6 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 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 the installation of cash-

box before the idol. He submitted that the Additional

District Judge, Nashik was therefore right in 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 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

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Page 7 is the devotees of the temple who have got maximum

interest in the temple whereas Tungars and Purohits have

their 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 the Tungars, Purohits and Pujaris

at the temple 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 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 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

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Page 8 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. 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 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.

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 –

(a) 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 thereof,

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Page 9 (b) in the case of a math, a disciple of the

math or a person of the religious persuasion

to which the math belongs,

(c) in the case of wakf, a person who is

entitled to receive any pecuniary or other

benefit from the wakf and includes a person

who has right to worship or to perform any

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 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, 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;

(b) to the wishes of the persons, if

any, empowered to appoint a new

trustee;

(c) to the question whether the

appointment will promote or impede

the execution of the trust;

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Page 10 (d) to the interest of the public or

the section of the 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(10)(a) of the Act

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 quoted above provides that the Charity

Commissioner shall have regard to 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 the public or

section of the public who have interest in the trust as

mentioned in clause (d).

8.We find 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,

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Page 11 Purohits and Pujaris need to be represented in the Board

of Trustees. Paragraphs 15 and 16 of the impugned

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

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

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 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

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 values or principles. To put it

differently, it is public trust “for the

community, by the community and of the

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Page 12 community” or any section thereof. If such

is the purport of the Trust then diversified

representation and involvement of all

concerned or the section of the pubic who

have interest in the Trust 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.

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 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

devasthan and is hostile to the affairs of

the Trust and his 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 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

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Page 13 Garbhagriha in a plate or 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 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

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 the interest of the

public but 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 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

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Page 14 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 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 need to be 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. The Charity Commissioner, Bombay and Ors.

(supra) has held in para 35:

“It is well settled that 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 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 been

created……..”

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Page 15 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 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 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.

.……………………… .J.

(R. V. Raveendran)

……………………… ..J.

(A. K. Patnaik)

New Delhi,

October 13, 2011.

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