IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 297 of 1977 with FIRST APPEAL Nos. 298 to 300 of 1977 For Approval and Signature: Hon'ble MR.JUSTICE M.S.SHAH ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? -------------------------------------------------------------- ABDULRAHIM AFAZALBHAI KADIAWALA, Versus CHARITY COMMISSIONER GUJARAT STATE -------------------------------------------------------------- Appearance: 1. First Appeal No. 297 of 1977 MR KH KAJI for Petitioners MR V.M.Pancholi AGP for Charity Commissioner Respondent No. 1 MS MANISHA LAVKUMAR for Respondent No. 3 MR MC SHAH for Respondent No. 8 2. First Appeal No 298 of 1977 MR KH KAJI for Petitioners MR AT THAKORE for Respondent No. 1 DELETED for Respondent No. 2 MS MANISHA LAVKUMAR for Respondent No. 5 NOTICE NOT RECD BACK for Respondent No. 10 -------------------------------------------------------------- CORAM : MR.JUSTICE M.S.SHAH Date of decision: 06/04/99 and 31/08/99 ORAL JUDGEMENT These four appeals raise common questions of law and facts regarding sanction of the Scheme dated 17-9-1973 framed by the learned Joint Charity Commissioner, Ahmedabad, in respect of the public trust known as Hazrat Pir Mohmad Shah Darga Sharif Trust, Ahmedabad (hereinafter referred to as the Trust ) as modified by the City Civil Court, Ahmedabad by its judgement and order dated 17-1-1977 in Misc. Application Nos. 660, 679, 699 and 478 of 1973. 2. Hazarat Pir Mohammad Shah Darga Sharif popularly known as "Piramshah Roza" is a famous and ancient dargah situate at Pankornaka in the city of Ahmedabad. The Trust, designated and known by the name of Hazarat Pir Mohmad Shah, is registered under the Bombay Public Trusts Act, 1950. The trust has properties both movable and immovable. Hazarat Pir Mahmad Shah was a renowned Muslim saint who lived in Ahmedabad in the first half of the 18th century. He died in 1750 A.D. After his death his disciples constructed a Roza at the place where Pir Mohmad Shaheb was burried . The Dargah had modest income and with passage of time it acquired prestige and at present has a very large number of devotees and also immovable properties which are managed by a committee called the General Committee consisting of 22 persons at present. The composition of the trustees was decided by Written Constitution framed in 1888 A.D. by a body of persons known as Murids. Pir Shaheb had a large following during his life time and out of his followers he initiated about 100 persons as his disciples and those initiated by him during his life time came to be known as the Murids. After his death children of original Murids also became Murids by a simple ceremony resorted to by the Murids by taking their children after 40 days and within a year of their birth, to Pir Shaheb Dargah and placing them at the feet of the Dargah. The doors of the Dargah are then closed for 2 to 3 minutes. The last available list of Murids was prepared in 1960 showing that there were about 560 families of Murids and most of them have settled in Ahmedabad, Kadi and Viramgam. 3. The General Committee of 23 members, under the Constitution of 1888, consisted of the President, 10 members out of Ahmedabad Murids,. 10 members out of Kadi Murids and 2 members from Viramgam Murids. It is stated that the aforesaid practice is being followed since 1888. The trustees are appointed for their life time and in case of vacancies arising, new members are appointed by the General Committee from amongst the murids of the concerned constituency i.e. from Ahmedabad, Kadi or Viramgam, as the case may be. One of the Murids would be elected as a President. Earlier the practice was that upon election of the President, one more Murid would be appointed on the Committee making it a total of 23 members including the President. It is stated at the Bar that the said practice is discontinued and only 22 members remain in the Committee including the President. 4. On the Wakf Act, 1923 coming into force, the Deputy Charity Commissioner, initiated suo motu inquiry under section 19 of the Act. In the said inquiry the President of the Committee showed his willingness to be registered as a public trust and therefore, it came to be registered as a public trust. In the prescribed form the objects of the Trust were shown as under: " In accordance with the prevalent convention to run the Dargah, Masjid, Kutubkhana and Madressas and to manage properties of the Dargah and to perform all ceremonies and to do corelated work and to celebrate festivals and to spend for religious and secular education." In the application form it was stated that the mode of succession to trusteeship is that whenever a vacancy occurs the General Committee appoints from amongst the Murids a fit and suitable person. In the said proceedings some Muslim-institutions appeared and contended that the Trust could not be said to be for the benefit of the Murids alone and could not be managed by the Murids alone. The learned Charity Commissioner, however, observed that he was only registering public trust and if the parties were aggrieved about the mode of succession to the trusteeship and various other practices followed by the Committee or as regards the question of beneficiaries, they should take appropriate legal steps. The Committee which had prior to 1954 taken up a stand that it was a trust for the benefit of Murids only took the stand at the aforesaid inquiry that the public trust was for the benefit of all Muslims but still stuck to their stand that this was a public trust in which only the Murids had the right to manage and administer the trust and the trust properties. There were certain disputes amongst Murids also and ultimately in the year 1961 the Committee moved the Charity Commissioner to frame Scheme under Section 50 of the Bombay Public Trusts Act for the aforesaid Trust. 5. The learned Charity Commissioner after issuing public notice and after hearing a large number of individual Muslims, framed the Scheme on 17-9-1973. The main features of the Scheme, so far as they are relevant for the present appeals, are as under: Clause 6 of the Scheme provides for the objects of the trust as under:- "(i) To maintain and run the Dargah and the Masjid of the Trust. (ii) To perform religions ceremonies in the Roza and to celebrate "Uras" and other festival according to prevalent religious practice. (iii) To maintain and run the Kutubkhana of the trust. (iv) To establish, maintain and run Madressas for imparting knowledge of Arabic and teaching of Kuran and other religious scriptures. (v) to spend for (a) religious education and (b) secular education, that is to maintain and run the primary school at Kadi and to give scholarships and books to the poor and deserving students." Clause 7 provides for vesting of trust properties. Clause 8 provides for number of Trustees, qualifications for trusteeship and the Board of Trustees as under: 8. Number of trustees, qualifications for trusteeship and Board of Trustees: (a) The number of trustees shall be not less than 16 and not more than 32. (b). Any Muslim who is otherwise a fit and suitable person for being appointed as trustee of a public trust and is not less than 26 years of age shall be qualified for appointment as a trustee of this trust. (c). There shall be a Board of Trustees consisting of not less than 16 and not more than 32 trustees for the management and administration of this trust. If fit and suitable persons from amongst the Murids are available, not less than 3/4th of the total number of trustees on the Board of Trustees shall be from the Murids and as far as possible the trustees from the Murids of Ahmedabad, Kadi and Viramgam shall be in the ratio of 3:3:1. Clause 9 provides for the First Board of Trustees comprising of 22 persons - 10 out of Ahmedabad Murids, 10 out of Kadi Murids and 2 out of Viramgam Murids. Clause 9(b) provides that the Charity Commissioner may at any time appoint additional trustees on the first Board of Trustees (but the total number of trustees should not exceed 32) if he considers it necessary and expedient to do so. Clause 10 provides for the term of the Board of Trustees and reads as under: 10. Term of the Board of Trustees: The term of the first Board of Trustees under this Scheme shall be upto 31-12-1976 . The term of every subsequent Board of Trustees constituted hereafter shall be for six years. Since the term of the Board of Trustees is fixed as 6 years, clause (11) empowers the Charity Commissioner to appoint a new Board of Trustees prior to the expiry of the term of the outgoing Board of Trustees. While the outgoing trustees were eligible for re-appointment, all the persons offering themselves for trusteeship had to give their application in writing . The Charity Commissioner shall, on receipt of such applications or on his own motion, after hearing the trustees and after making such inquiry as he thinks fit, appoint a new Board of Trustees subject to the provisions contained in clause (8) of the Scheme. Clause (12) provides for appointment of new trustees when casual vacancies arise. The said clause provides that any vacancy could be filled in by the existing trustees by a unanimous vote subject to the provisions contained in clause (8) and if such an unanimous resolution was not passed within three months from the date of occurance of the vacancy, it would be lawful for the Charity Commissioner to make appointment subject to the other provisions of the Scheme. Clause (19) provides for quorum of at least 1/3rd of the total strength of trustees at any meeting of the trustees. Clause (20) provides that every resolution submitted to the meeting of the Board of Trustees (other than the appointment of a new trustee) shall be decided by a majority of votes of the members present at such meeting and voting on such resolution or question. Every member shall have one vote but in the event of an equality of votes, the President of such meeting shall have a second or casting vote. Clauses 24 and 25 provide for appointment of the Managing Committee and its powers to look after and supervise day to day management of the trust ; to give trust properties on rent and arrange to collect rents, etc. and to keep the trust properties in proper repairs; to make necessary arrangements for celebration of Uras and other festivals, to look after management of schools and other institutions run by the Trust. The managing Committee is also empowered to employ the necessary staff and to fix their pay and salaries with requirement to obtain sanction of the Board of Trustees in respect of certain employees. Clause (32) empowers the Board of Trustees to frame rules and regulations for the administration and management of the trust and trust properties and also to amend such rules and regulations provided that such rules and regulations shall not be inconsistent with any of the provisions of the Scheme or the provisions of the Public Trust Act, 1950 or the rules framed thereunder. Clause (33) provides for amendment of the scheme. The Board of Trustees or any two or more persons interested in the trust have right to apply to the Charity Commissioner for amending the Scheme. The Charity Commissioner may also suo motu amend the Scheme after giving notice to the Board of Trustees. 6. For challenging the aforesaid Scheme or certain clauses thereof the above-numbered four Applications came to be filed before the City Civil Court, Ahmemdabad, by (i) 4 Murids of Ahmedabad including the President of the Trust; (ii) 2 Murids of Kadi; (iii) 2 Murids of Viramgam and (iv) a few Muslim persons who are not Murids, respectively. 7. At the hearing of the aforesaid Applications the following major contentions were raised before the City Civil Court, Ahmedabad, especially on behalf of the Murids : (1). Non-murids should not have been associated with the management of the Trust. (2). No one except Murids have any right over the 100 rooms situated within the compound of the Roza. (3). The object referring to imparting secular education should not have been confined to running of primary school at Kadi only. The grant of medical aid and giving of assistance to the educational institutions should also have been covered under the objects of the Trust. (4). The power to appoint the subsequent Board of Trustees and the virtual power to fill up the vacancies occurring on the Board of Trustees should not have been given to the Charity Commissioner. 8. The City Civil Court, Ahmedabad rejected the first, second and fourth contentions and partly accepted the third contention by observing that imparting of secular education need not be confined to running of primary school at Kadi and the relevant object clause was accordingly modified as under: "To spend for (a) religious education and (b) secular education i.e. running and maintaining of schools, colleges and hostels at all levels and to give scholarships and books to the poor and deserving students." The other provisions of the Scheme at Ex.338 were confirmed by the judgment and order dated 17-1-1977. It is against the aforesaid common judgment that the present four First Appeals have been filed. 9. At the hearing of these appeals Mr.K.H.Kazi, learned Senior Counsel has appeared for the appellants and Ms.Manisha Lavkumar, learned counsel has appeared for the supporting respondents challenging the judgment and order of the City Civil Court, Ahmedabad, in so far as the first and fourth contentions were rejected by the City Civil Court. They have also pressed that the objects clause should also include medical aid and grant to educational institutions but have not pressed the second contention except in the modified form referred to hereinafter. It is also brought to the notice of the Court that under the Wakf Act, 1995, Wakf Board is appointed for the State of Gujarat, but the Wakf Board is dissolved and that action is under challenge and that there is ad interim stay against the constitution of new Wakf Board. Hence, the communication from the Charity Commissioner that henceforth the trust should approach the Wakf Board cannot be acted upon. 10. Before proceeding to narrate and deal with the contentions urged on behalf of the appellants, it is necessary to state that during pendency of the Misc.Civil Applications, operation of the scheme was stayed by the City Civil Court and while admitting these appeals, this Court had also passed order dated 7-7-1977 in Civil Application No.1669 of 1977 granting interim stay of operation of the scheme framed by the learned Joint Charity Commissioner and modified by the City Civil Court, Ahmedabad subject to the following conditions: (1). not less than 50% of the funds earmarked for the purposes of education should be spent for non-Murids; (2) 100 rooms constructed in the premises of the trust properties should remain open to the entire body of beneficiaries and should not remain confined to the use of the Murids alone. While passing the aforesaid order this Court also recorded that there was no serious charge regarding misfeasance or nonfeasance against the trustees who were in management all these years. It is stated at the Bar that barring a few exceptions the same persons have continued as trustees of the Trust during this period of 22 years and no allegation of misfeasance, nonfeasance or malfeasance is made against them. It is further submitted by Mr.Kazi and Ms. Manisha Lavkumar learned Counsel for the appellants and supporting respondents that the aforesaid two conditions may be incorporated as a part of the Scheme but there should not be any interference with the rights of the trustees to administer and manage the trust and its properties and that is the gravamen of the challenge to the Scheme framed by the learned Charity Commissioner and sanctioned by the City Civil Court, Ahmedabad. 11 It is contended by Mr.Kazi that since the learned Joint Charity Commissioner as well as the learned Judge of the City Civil Court have accepted the case of the appellants that the Murids are descendants of the 100 followers of Pir Sahab (consisting of about 500 families) and each member of these families had also become Murids, that the place where Pir Saheb was buried and Dargah or the Roza was constructed was granted by a Murid; that since the death of Pir Saheb the Murids have been worshiping the Dargah and they by their honest and efficient management have expanded the properties of the Dargah from a small estate to a very big estate, the present income (in 1997-98) of which was Rs.14 lakhs approximately with a surplus of Rs.3.67 lakhs and also in view of the fact that all these years the management has remained with the Murids and no non-murids have ever been associated with the management of the Trust, the learned Charity Commissioner grossly erred in interfering with the rights of the Murids to manage the Trust and its properties by making inroads on two fronts - one by requiring the entry of non-murids by providing that 1/4th of the trustees shall be from amongst non-murids and secondly by assuming the power of appointment of the trustees on the Board of Trustees upon expiry of the term of the present trustees and also for appointing trustees when vacency occurs if the existing trustees do not unanimously fill up the vacancy within a period of three months from the date of occurrence of the vacancy. Mr.Kazi has seriously challenged the premise on which the learned Joint Charity Commissioner as well as the learned City Civil Judge proceeded that once it is conceded that Muslims at large are the beneficiaries, the right of the Muslimis at large to participate in the management cannot be denied. It is submitted that the right of management of the Murids cannot be whittled down only because the beneficiaries are a larger class of Muslimis including the non-murids also. Reliance is placed on the decisions in RAMKARAN SINGH V. PARBATI KUER AIR 1954 Patna 443; MD. ISMAIL V. AHMED MOOLLA, AIR 1916 PC 132; DHARAM DAS V. SADHO PRAKASH, AIR 1917 Allahabad 331, SWAMI PARAMATMANAND SARASWATI V. RAMJI TRIPATHI AIR 1974 SC 2141 and CHARITY COMMISSIONER V. STATE OF BOMBAY (NOW GUJARAT) 1993(1) GLH 94. The aforesaid decisions are relied upon in support of the contention of the appellants that in absence of any allegation of mismanagement or misappropriation the Charity Commissioner has no power to interfere with the internal management of the Trust so as to override the practice prevalent over last 100 years. It is submitted that the Scheme providing for inclusion of the non-murids on the Board of Trustees of the trust would destroy the present Board of Trustees which is one cohesive group attached to Pir Saheb in whose memory the Dargah was constructed. 12. On the other hand Mr.M.C.Shah, learned Counsel for the Sunni Wakf Committee has contested the aforesaid cotentions and has submitted that the Charity Commissioner as well as the City Civil Court have found that on account of the exclusive management of Murids the benefit of the trust properties and the income derived therefrom have been given by and large to the Murids only. Since Muslims at large are the beneficiaries of the Trust, non-murids must also have a say in the management of the trust. It is submitted that Murids do not constitute a separate religious sect. From religious point of view there is no distinction between the Murids and non-murids. Still in matters of providing meals, Tabuk (prasad), scholarships, right to occupy the rooms appurtenant to the Dargah on the Urs days, such benefits and facilities have so far been given to the Murids and non-Murids have been excluded only on account of non-association of the non-murids with the affairs of the Trust and trust properties. 13 In rejoinder Mr.Kazi submitted that apart from the fact that there are no allegations of mismanagement and misappropriation against the present trustees, even during the period of last 22 years i.e. during pendency of these appeals the trustees have faithfully complied with the conditions imposed by this Court in the interim order dated 7-7-1977 and no non-murids have made any grievance about any discrimination in the matter of giving benefits by the Board of Trustees. 14. Before dealing with the contentions of the learned counsel for the parties, it is necesary to refer to the legal principles applicable in such cases. As held by the Privy Council in its decision in MD. ISMAIL V. AHMED MOOLLA, AIR 1916 PC 132 and as further enunciated by the Apex Court in the decision in SWAMI PARAMATMANAND SARASWATI V. RAMJI TRIPATHI AIR 1974 SC 2141 and also by this Court in CHARITY COMMISSIONER V. STATE OF BOMBAY (NOW STATE OF GUJARAT) 1993(1) GLH 99 where no mismanagement or embezzlement is shown the Court should so frame the scheme as to meet the exigencies of the case without unduly interfering with the powers of the committee, caste or the public or impairing the authority of a person carrying on the management. In settling a scheme, the Court or the Charity Commissioner, is entitled to take into consideration - (1) the wishes of the founder of the trust, (2) the past history of the institution, (3). the way in which the management has been carried out heretobefore, and (4). the other existing conventions that may have grown up since its foundation. In drawing up a scheme the Court must not encroach upon the rights and prerogatives of the existing management and the institutional trust must be respected subject to the safeguard that the sect and the body of the worshippers for whose benefit it was set up have the protection of the Court against their property being the subject of abuse, speculation and waste. 15. Having heard the learned Counsel for the parties it appears to the Court that in view of the fact that non-murid Muslims are also beneficiaries of the trust activities, some participation of the non-murids in the management of the trust affairs and its properties would not only be permissible but also be justified. At the same time applying the principles laid down in the aforesaid authorities, it appears that , the Scheme as framed by the Joint Charity Commissioner and sanctioned by the City Civil Court goes too far in not only providing 1/4th number of the trustees on the Board of trustees being appointed out of non-murids but also in conferring on the Charity Commissioner the power of appointment on the new Board of Trustees upon expiry of the term every six years. In view of the fact that no allegation of mismanagement or misappropriation has been made against the existing trustees or any one of them and that the only ground on which the non-murids are sought to be inducted into the Board of Trustees is that in the past most of the benefits were given to the Murids only and in view of the concession being made by the learned Counsel for the appellants that the conditions imposed by this Court in the interim order dated 7-7-1977 may be made a part of the Scheme, it appears to the Court that the power to make appointment of all the Trustees upon expiry of the term every six years need not be conferred upon the Charity Commissioner or any outside