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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 5th 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’).

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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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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 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 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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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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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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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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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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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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(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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(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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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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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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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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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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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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