wp3454-09.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3454 OF 2009 Yusuf Ahmed Baig & Ors. .. Petitioners Versus Yakub Baig Trust, Panvel & Ors. .. Respondents Mr.M.S.Karnik for petitioners Mr.Rajiv Patil & Sachin Pande for respondent No.1 Mr.Leena Patil for respondent Nos. 18 to 20, 28 to 33 and 35 Mr.Sameer Singh for respondent Nos. 2 to 5, 12, 17, 21 to 27. CORAM : S.C.DHARMADHIKARI, J. DATE : 29th July 2011. ORAL ORDER: Rule. Respondents appearing through Advocates waive service. By consent Rule made returnable forthwith. 1] By this petition under Article 227 of the Constitution of India, the petitioner is challenging the order dated 3rd February 2009 passed by the Dist. Judge, Raigad in Civil Miscellaneous Application No.64 of 2004. wp3454-09.doc 2 2] The petitioners are beneficiaries of a Wakf made by their forefather Yakub Baig for religious purpose of maintainance of Mosque constructed by him on his land and for maintainance of his sons and descendants and for their residence under a regular Wakfnama made and registered by him on 19th February 1909. This wakfnama is in respect of properties belonging to Yakub Baig consisting of several buildings and lands situate at Panvel and other villages in Panvel taluka. Ultimately, this was registered as a Trust and its name is Mominpada Masjid Yakub Baig Trust. 3] After referring to the acquisition of properties by the said Yakub Baig, it has been stated in the petition that the Wakf provided for maintainance of three sons and widow and their descendants from generation to generation. After referring to Wakf deed, it has been stated in the petition that the Wakf was being managed during his life time but disputes arose between his sons who are Mutawallis with him. After his death in 1911, one Ahmed Baig Yakub Baig took over the said Wakf in his wp3454-09.doc 3 hand and was managing the same to the exclusion of other trustees. After the death of other trustees, ultimately, the trust came to be registered and the litigation in that behalf is referred to in the memo of petition. It is stated that, a suit had to be filed for removal of Mutawallis and for accounts and framing of scheme of the said Wakf. The proceedings culminated in making of scheme in pursuance of the orders passed by this Court. Therefore, a scheme, a copy of which is at Annexure F was framed on 23rd February 1953. The petitioners have referred to the events thereafter and have contended that the Chief Trustee entered into several agreements to sell the Wakf properties. He was resisting any opposition to his authority in doing so. Therefore, he made an application to the Dist. Judge, Raigad for amendment of the scheme by adding sub-clause (a- i) to clause 14(a), regarding payment of beneficiaries towards their maintainance. This amendment was sought by filing civil Miscellaneous Application No.16 of 2004. That application was allowed by the Dist. Judge on 15th July 2004. The scheme was amended and that order was challenged by the petitioners by wp3454-09.doc 4 filing a writ petition in this Court being Writ Petition No.5345 of 2005. A Division Bench of this Court heard the said petition and by an order dated 20th February 2006 directed the Dist. Judge to hear the parties again and pass a fresh order on the Civil Misc. Application. Pursuant to the orders passed by the Division Bench, the petitioners appeared and filed their reply opposing amendments. It was submitted that the amendment is contrary to the Wakfnama itself so also it is nothing but an attempt to harass the beneficiaries. This application is ultimately allowed by the final order dated 3rd February 2009 and that is how the present petition is filed. 4] Mr.Karnik appearing for petitioners submitted that if the Wakf was settled for the purpose of beneficiaries who are referred to in the Wakfnama, then, its object would be defeated if the application is allowed. If the scheme is amended in terms of the prayers in the miscellaneous application, that would give uncontrolled and unregulated authority to the Trustees to decide for themselves as to whether any beneficiary is acting wp3454-09.doc 5 contrary to the interest of the Trust or not. Such a course can never be adopted and that too when the affairs of a registered public trust, which is subject to the jurisdiction and authority of the Charity Commissioner and others under the Bombay Public Trust Act, 1950 are involved. Further, even if the affairs of the Trust had to be administered in accordance with the scheme that is settled, it is for the court to decide as to whether any beneficiary could be deprived of the benefits in his favour because he is acting contrary to the interest of the Trust or has adopted a position in conflict with the interest of Trust. This decision cannot be left to be taken by the Trustees and their absolute authority would mean that the jurisdiction of the competent court is taken away and the adjudication would, then, be done by the trustees themselves. Therefore, he submits that once the powers are concentrated in the hands of the trustees exclusively and that is the intent and purpose of seeking amendments, then, this Court should not countenance any pleas in that behalf and proceed to quash and set aside the order. Mr.Karnik has invited my attention to sections 55 and 56 wp3454-09.doc 6 of the Bombay Public Trust Act in this behalf. 5] On the other hand, Mr.Patil appearing on behalf of the contesting respondents supported the impugned order. He submits that the affidavit of Chief Trustee points out as to why the decision was taken to go in for amendment of the scheme. He refers to the resolution passed on 5th June 2004 by the Trustees. He submits that the respondent No.1 is a registered charitable trust. He submits that the very intent of the settled scheme will be defeated if benefits are given to those who are not acting in the interest of the Trust but rather defeating it by their misdeeds. It is contended that the amendment was necessitated because the Trust property had to be protected and the benefits should not be snatched away by those who are not entitled to the same or there is no case made out in that behalf. He submits that ultimately clause 14 of the scheme which provides for application of net income must be read in its entirety. If so read, it is clear that existing clause (a) permits as to how the income has to be applied. In these circumstances, wp3454-09.doc 7 mere addition of clause (a-i) cannot cause any prejudice and the order passed by the Principal Dist. Judge, Raigad should not be disturbed. Thus, it is prayed that the petition be dismissed. 6] With the assistance of the learned Counsel appearing for parties, I have perused the petition and the annexures thereto so also the affidavit in reply. 7] By the application seeking amendments what is sought to be introduced is clause (a-i) after sub-clause (a) in clause 14. The proposed amendment reads thus:- “(a-1) That the beneficiaries i.e. Descendants of the family of settler Yakub Baig who are acting against the object and interest of the applicant trust and who are committing breach of the terms and conditions of the original trust deed shall not be entitled for any amount payable to them as per clause 14(a) of the Scheme and the amount of such beneficiaries be kept in the separate bank account in the name of trust and said amount be utilised for the poor persons of all the communities and caste by serving a food to them on every 11th day of each Urdu month as per customs of the wp3454-09.doc 8 “Hanifi Sunni Branch” and such beneficiaries shall not be entitled to participate in day to day affairs of the trust.” 8] A perusal of the same would indicate that what the Trust is proposing is to introduce in the scheme provisions by which it can take care of acts of omission and commission of those beneficiaries who are acting against the object and interest of the Trust. When this application was made what has been contended in support of the proposed amendment is that some of the beneficiaries, that is descendants of the settlor's family, are acting against the object and interest of the applicant trust and they are not obeying the terms and conditions of Vasihatnama. Therefore, there is every likelihood of frustration of objects of the applicant Trust. Considering the situation as the beneficiaries are acting against the object and interest of the trust and are committing the breach of terms and conditions of the original trust deed they should not be entitled to any benefit as per the trust deed and the scheme framed by this Court. wp3454-09.doc 9 9] It is in these circumstances that the Trustees met and passed a resolution intending to move an amendment to the scheme and till such time as the interest of the Trust are required to be protected as against the Act of the beneficiaries, and the amendments proposed are allowed, that they would not be deprived of their benefits totally but the proceeds which should go to them towards maintainance shall be kept in a separate bank account. 10] This application was opposed by the petitioners and they pointed out that the application is not bonafide and deserves to be dismissed. In reply, it was contended that the Trust properties are being dealt with by the Chief Trustee for his own benefits and in his own interest and the said acts are causing loss to the Trust. It has been pointed out that the Trust has been registered and is subject to the provisions of the Bombay Public Trust Act, 1950. The Chief Trustee ignoring and brushing aside the legal provisions has taken upon himself the sole and exclusive authority to deal with the Trust property and wp3454-09.doc 10 to manage and administer its affairs. He is not acting in a democratic manner. He has harassed the beneficiaries. He has also filed several civil and criminal cases against the beneficiaries. Ultimately, he wants to perpetuate his own illegal acts and deprive the beneficiaries of the benefits and that is how the application is made. The same, therefore, does not deserve to be granted. The applicants therefore are not entitled to make any application and in any event the application made should not be granted. 11] It is this application which was placed before the learned Principal Dist. Judge and he framed necessary issues. He held that the applicant – first respondent before this Court has proved that the scheme is required to be amended as prayed in para 8A and further that the proposed amendment is not against the aims, objects and scheme of the Trust. The issues framed and the findings given theiragainst read thus:- “1) Is it provided by the applicant that the scheme is required to be amended as prayed in wp3454-09.doc 11 para No.8(A) in addition to para No.A-1 after clause No.14(A) in the scheme:- “IN THE AFFIRMATIVE” (2) Whether the proposed amendment is against the aim and object of the Scheme of the Trust:- “IN THE AFFIRMATIVE” (3) Whether there is no provision in the original scheme to take the action against the beneficiaries of the Trust who are acting against the interest of the Scheme of the Trust? - “IN THE AFFIRMATIVE” (4) Whether there is no provision in the original scheme to take the action against the beneficiaries of the Trust who are acting against the interest of the scheme of the trust. - “IN THE NEGATIVE” (5) What Order? “AS PER FINAL ORDER” 12] There was no oral evidence led. The documents being undisputed, he took them on record. While rendering his findings on Issue No.1 to 3 the learned Principal Dist. Judge held that although the proprietory rights came to an end but ultimately the Mohamedian Law will have to be taken into consideration. If it is taken into consideration, then, the wp3454-09.doc 12 scheme is required to be amended so that the aim and object of the Trust is not frustrated. He was of the opinion that if the Wakf or the Trust is formed for religious purpose and the properties of the Trust are in danger because of the misdeeds of the holders of the properties in their hands i.e. Opponent – beneficiaries and these misdeeds cannot be stopped in absence of clear provision to that effect in the scheme formulated for the management of the Wakf/ trust, then the amendment is the need of time and requirement for effective remedies for the redressal of grievance against such beneficiaries. Equally, he was aware that whether the acts committed by the beneficiaries amount to misdeeds defeating the objects of the trust is a question of fact to be decided on proper appreciation of evidence but since that is not the subject matter of the application, he has not dealt with the same. According to him, that there is no provision in the scheme providing for disqualification of beneficiaries who are acting against the interest of the Trust and in such circumstances, to take effective steps against the beneficiaries, it is necessary to wp3454-09.doc 13 amend the scheme. 13] If the scheme is perused as a whole, it is apparent that there are enough provisions which indicate that the Trustees cannot be said to be helpless to prevent the act of beneficiaries, if they are acting contrary to the interest of the trust or are defeating its purpose. If the order passed framing the scheme together with the scheme is perused, it is apparent that the scheme as framed empowers the Trustees to frame rules and regulations to take care of certain aspects, particularly to ensure that the benefits reach those needy beneficiaries who deserve the same. If certain clauses which are amended from time to time are perused, it is apparent that this is not a case where the rules and regulations cannot be framed. Clause 15 empowers the trustees from time to time to make, with the approval of the Charity Commissioner, such rules and regulations as they deem fit for due administration of several provisions of the scheme and of the trust deed so also to alter amend or repeal such rules and regulations. Rules and wp3454-09.doc 14 regulations should not be inconsistent with or repugnant to anything contained in the trust deed. The learned Principal Dist. Judge ought to have been aware of the fact that even if the amendment application can be considered by him, there is no power vested in him to grant an amendment to the scheme by which the decision with regard to the misconduct of the beneficiaries can be taken by Chief Trustee or the Trustees or the Trust exclusively. Ultimately, if the beneficiaries are acting against the object and interest of the Trust or are committing breach of the terms and conditions of the original trust deed, then, whether any amount should be paid to them as maintainance or not cannot be a decision taken by the Trustees on their own. They cannot be the adjudicators themselves. It is not for them to decide whether anything done by the beneficiaries amounts to defeating the objects and interest of the applicant trust. If they are of the opinion that their acts are contrary to the interest of the trust or that they are committing breach of the terms and conditions of the original trust deed, it is clear on their own showing that they can approach the wp3454-09.doc 15 competent authority or court to prevent the same. It is for the competent court or authority to do so. Whether the Trust can stop the benefits being extended is a matter for the Court or the appropriate authority, then, to decide. When there is no rule or regulation made, although, the scheme empowers the Trustees to do so, then, in the garb of an amendment to the scheme, the Trustees cannot assume power which takes away the authority and jurisdiction of a competent court to deal with the acts of omission and commission on the part of the beneficiaries. The real intent is that then, the Trustee or Chief Trustee would become a Judge in the cause. That would mean that Trustees of a Trust which is governed by the Bombay Public Trust Act and is subject to the regulatory and supervisory powers of authorities like the Charity Commissioner thereunder, would to the exclusion of all of them, deal with such matters. It is well settled that the jurisdiction and authority of competent civil court cannot be taken away and vested in a private party which has no power to adjudicate on disputes and render definite and final so also conclusive findings. In a decision reported in A.I.R. wp3454-09.doc 16 1965 SC 166 (Onseph Poulo Vs.Catholic Union Bank of Ltd.), the Hon'ble Supreme Court held that no court of law can allow a private party to take the administration of law in its own hands and settle the question as to whether a particular offence has been committed or not for itself. The view taken also overlooks sections 50, 50A, 51 and 55 and 56 of the Bombay Public Trusts Act, 1950. Therefore, the remedy to adjudicate and decide upon the acts of the beneficiaries must be best left to the competent bodies. The scheme even otherwise empowers the Trustees to frame rules and regulations and subject to powers conferred in the Charity Commissioner to issue such directions and render such assistance as is required, they can do so. Therefore, with the intervention of the Charity Commissioner, the Trustees could have framed appropriate rules so that the beneficiaries by their acts do not cause any loss to the Trust or defeat the object of the Trust so also violate the terms and conditions of the original trust deed. In that event, the amount payable to them can be withheld and subject of course to the powers of the competent court to deal with and wp3454-09.doc 17 decide the disputes in that behalf. That is the plain intent of the scheme as framed under the orders and directions of this Court. Therefore, no scheme or any stipulations thereunder which take away the power of competent authorities under the Public Trust Act or the jurisdiction of the Civil and Criminal Court can be permitted. The Principal Dist. Judge has ignored this vital aspect while allowing the amendment to the scheme. 14] Having perused his orders I find that the only reason assigned by him is not tenable in law. The reason assigned is that there is nothing in the Trust Deed which would enable the trustees to take care of the wrongful acts of the beneficiaries and, therefore, they may be helpless in dealing with a situation of that nature. To my mind, the reasoning in para 26 of the impugned judgement ignores the aforementioned elementary and basic aspects. The misdeeds cannot be stopped in the absence of any clear provision to that effect in the scheme, is an assumption on which the learned Judge based his final conclusion. That assumption being fallacious and not borne wp3454-09.doc 18 out from the factual materials is clear because there is no denial of the fact that civil and criminal proceedings have been initiated at the instance of the Trust and the Trustees and the same are pending. They are primarily alleging that the beneficiaries have misconducted themselves. Therefore, even in the absence of any rules and regulations or amendments to the scheme, the Trustees have proceeded against such beneficiaries in the competent courts. If that aspect had been noted by the learned Principal Dist. Judge, possibly, he would never have rendered a finding and conclusion as has been rendered in para 26. 15] Finding that the same is clearly contrary to law so also overlooks the underlying controversy, the impugned order cannot be sustained. Thus, the order passed by the learned Principal Dist. Judge Alibaug dated 3rd February 2009 in Civil Miscellaneous Application No.64 of 2004 deserves to be and is hereby quashed and set aside. The application made by the first respondent before the Principal Dist. Judge for amendment wp3454-09.doc 19 to the scheme and particularly to introduce the clause 14(a-1) stands dismissed. However, there will be no order as to costs. The writ petition succeeds in these terms. Rule is made absolute accordingly. There will be no order as to costs. 16] It is clarified that this order does not prevent first respondent Trust or trustees to make a appropriate rule, regulation in terms of powers conferred by the scheme and subject to the superintendence and authority of the Charity Commissioner, to regulate the acts of the beneficiaries. It is further clarified that dismissal of the application and reversal of the order of the Principal Dist. Judge shall not prevent the Trust and Trustees from making appropriate rules in accordance with the scheme. All pleas of both sides in that behalf are kept open. 17] Equally, needless to clarify that by this order it shall not be construed that this Court has expressed any opinion as far as the allegations against the beneficiaries. None of them wp3454-09.doc 20 can be said to be absolved or exonerated, if they have committed any acts which are prohibited by law, by the refusal of this Court to permit the trustees to amend the scheme and of course, criminal and civil proceedings against beneficiaries to proceed and be decided on their own merits and in accordance with law. Equally, the beneficiaries are entitled to initiate such proceedings or defend them. All contentions in that behalf are also kept open. Petition is allowed with such clarifications. (S.C.DHARMADHIKARI, J)