SCA/14367/2008 1/25 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 14367 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SEVANTILAL JASKARANBHAI AJBANI & 3 - Petitioner(s) Versus SHREE RUPVIJAYJI MAHARAJ DELLANO UPASHRAYA TRUST & 5 - Respondent(s) ========================================================= Appearance : MR MG NAGARKAR for Petitioner(s) : 1 - 4. MR RAVINDRA SHAH for Respondent(s) : 1 - 4. UNSERVED-REFUSED (N) for Respondent(s) : 5, NOTICE SERVED BY DS for Respondent(s) : 6, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 23/12/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, the petitioners – original defendant Nos.1 to 4 have prayed for appropriate writ, order and/or SCA/14367/2008 2/25 JUDGMENT directions quashing and setting aside the impugned order dtd. 24/9/2008 passed by the learned Chamber Judge, City Civil Court, Ahmedabad below application Ex.15 in Civil Suit No. 1399 of 2008, by which the learned Chamber Judge has rejected the said application submitted by the petitioners – original defendant Nos.1 to 4 to reject the plaint under Order 7 Rule 11 of the Code of Civil Procedure. 2. That the respondent Nos.1 to 4 herein – original plaintiffs have instituted Civil Suit No. 1399 of 2008 in the City Civil Court at Ahmedabad for the following main reliefs:- 12(A). Permanent injunction may be granted against the defendant Nos.1 to 4 restraining the defendant Nos.1 to 4 not being general or life time members or legally elected trustees of the plaintiff trust, from entering into the property of the plaintiff trust being 312, Doshiwadani Pol, Kalupur, Ahmedabad and holding and declaring that they are not entitled to take possession of the properties of the trust unauthorisedly entering into the properties of the plaintiff trust and restraining SCA/14367/2008 3/25 JUDGMENT them from creating obstruction in possession of the property of the plaintiff trust. (B) to hold and declare that the defendant Nos.1 to 4 not being annual or life time members of the plaintiff trust and they have appointed themselves as so-called trustee or member of the administrative committee and grant permanent injunction restraining the defendant Nos.1 to 4 of the plaintiff trust from administering the properties of the trust properties and from managing the properties of the plaintiff trust or entering into financial transaction in the name of the plaintiff trust, restraining them from operating bank accounts and collecting rents from tenants of the plaintiff trust etc., by passing illegal resolutions, on the basis of their illegal appointment and restraining them from restraining the plaintiff trust from legal administration; and restraining them from making any communication with the third party on behalf of the plaintiff trust and SCA/14367/2008 4/25 JUDGMENT restraining them from taking possession of the movable and immovable properties of the plaintiff trust, directly or indirectly in any manner whatsoever. 3. In the said suit, the petitioners – defendant Nos.1 to 4 have taken out Chamber Summons at Ex.15 requesting the Court to reject the plaint under the provisions of Order 7 Rule 11 of the Code of Civil Procedure mainly on the following grounds:- (I) Since the plaintiff No.1 is a registered Public Trust, the Charity Commissioner is necessary party in view of the provisions of Section 56(b) read with Section 42 of the Bombay Public Trust Act and the Charity Commissioner has not been made party, this suit is not maintainable. (II)The Change Report Nos.638 of 2008 and 639 of 2008 with regard to dispute as to whether the defendant Nos.1 to 4 are the trustees and lifetime members of the plaintiff No.1 Trust are pending before the Deputy Charity SCA/14367/2008 5/25 JUDGMENT Commissioner for adjudication and therefore, this Court has no jurisdiction. (III)The Change Report No.731 of 2007 with regard to election of plaintiff Nos.2 to 4 as trustees, is also pending before the deputy Charity Commissioner for adjudication as to whether they are legal trustees. Therefore also, the suit is not maintainable in view of Section 80 of the Bombay Public Trust Act. (IV)As the plaintiffs have not obtained prior permission from Charity Commissioner as provided in Section 51 of the Bombay Public Trust Act for filing this suit, the suit is not maintainable. (V)In view of provisions of Section 41(A) of the Bombay Public Trust Act, only the Charity Commissioner has jurisdiction to deal with and determine the subject matter in issue and therefore, this Court has no jurisdiction. 4. The said application came to be rejected by the learned Chamber Judge by the impugned order and hence the petitioners – original defendant nos.1 to 4 have preferred SCA/14367/2008 6/25 JUDGMENT present Special Civil Application under Article 227 of the Constitution of India. 5. Mr.Prakash Jani, learned advocate appearing on behalf of the petitioners – original defendant Nos.1 to 4 have submitted that the learned Judge has materially erred in dismissing the Chamber Summons Ex.15 and in not dismissing the plaint as the reliefs sought in the plaint can only be granted by the Charity Commissioner under the provisions of the Bombay Public Trust Act and therefore, the Civil Court has no jurisdiction to grant the reliefs prayed in the plaint. It is further submitted that the Change Report Nos.638 and 693 of 2008 with respect to the dispute as to whether the petitioners – defendant Nos.1 to 4 are trustees and life time members of the plaintiff No.1 trust, is pending before the Dy.Charity Commissioner for adjudication and therefore, the Civil Court has no jurisdiction. It is also further submitted that even the Change Report No.731 of 2007 with respect to the election of the plaintiff Nos.2 to 4 as trustees, is also pending before the Dy.Charity Commissioner for adjudication as to whether they are trustees and therefore also considering the provisions of Sec.80 of the Bombay Public Trust Act, the suit is not maintainable. It is SCA/14367/2008 7/25 JUDGMENT further submitted that even otherwise as the original plaintiffs have not obtained prior permission from the Charity Commissioner as provided under sec.51 of the Bombay Public Trust Act for filing the suit, the suit itself is not maintainable. It is further submitted that in view of the provisions of sec.41-A of the Bombay Public Trust Act only the Charity Commissioner is competent to deal with, decide the issue and therefore, the Civil Court has no jurisdiction. It is submitted that the learned Chamber Judge has materially erred in not properly appreciating the reliefs sought in the plaint and the dispute in the suit. It is submitted that the learned Chamber Judge has materially erred in considering the suit only for possession and/or restricting the defendants from forcibly dispossessing the plaintiff Nos.2 to 4. It is submitted that the learned Judge has not properly appreciated the main dispute in the suit. It is submitted that the main contention / submission on behalf of the plaintiffs is that the petitioners – defendant Nos.1 to 4 are not general or life time members of the trust and they are not legal trustees duly elected and thereby they have no right to enter into the disputed properties of the trust and they have no right to retain the possession. It is also SCA/14367/2008 8/25 JUDGMENT further submitted that even the reliefs sought in para 12(b) of the plaint is with respect to the administration and management of the trust and trust properties and the Bank Accounts of the trust etc. for which only Charity Commissioner has jurisdiction under sec.41A of the Bombay Public Trust Act. 6. Mr.Jani learned advocate appearing on behalf of the petitioners has relied upon the following decisions in support of his prayer and submission to allow present Special Civil Application and allow the Judges Summons Ex.15 and reject the plaint under Order 7 Rule 11 of the Code of Civil Procedure:- (i) AIR 1973 Bombay 130 (Full Bench) (Keki Pestonji Jamadar & another Vs. Khodadad Merwan Irani & Others). (ii)AIR 1983 Bombay 104 (Dinanath Ajabrao Ingole & another Vs. Shetkari Shikshan Prasarka Mandal, Wardha & Others). (iii)1985 GLH 889 (Vileshkumar Shantilal Acharya Vs. Dhansukhlal J.Gajjar & others). (iv)2000(2) GLH 327 (Swami Satyaprakashdasji Gurughanshyam Prasad Swami & Another Vs. Joint Charity Commissioner, Rajkot & Another). (v)AIR 2005 SC 2544 (Church of North India Vs. Lavajibhai Ratanjibhai & others). SCA/14367/2008 9/25 JUDGMENT Making above submissions and relying upon the decisions aforesaid, it is requested to allow present Special Civil Application and to reject the plaint. 7. The petition is opposed by Mr.Ravindra Shah, learned advocate appearing on behalf of the respondent Nos.1 to 4 herein – original plaintiffs. It is submitted that in the facts and circumstances of the case, more particularly when the suit filed by the plaintiffs is for protecting the possession of the trust properties and to remove the encroachment by the petitioners, the learned the learned Chamber Judge has rightly held that it cannot be said that the suit for the aforesaid relief is barred. It is further submitted that in fact, the petitioners are not trustees. The petitioners are neither members/life members of the trust, nor they are duly elected trustees of the trust and therefore, they have no right to retain the possession of the trust property and/or to administer and manage the trust properties and the bank accounts of the trust etc. Therefore, it is submitted hast in the facts and circumstances of the case, the learned Chamber Judge has not erred in dismissing the Notice of Motion Ex.15. It is submitted that in the plaint there were necessary SCA/14367/2008 10/25 JUDGMENT averments making out a case that the Civil Court has jurisdiction to grant relief in the said suit. 8. It is further submitted that as such the plaintiff Nos.2 to 4 are legally appointed trustees of the plaintiff No.1 trust and functioning as such since 2005 as trustees, whose term will come to an end according to the scheme in the year 2010, therefore, it is submitted that being trustees they are legal owners of the trust properties and are entitled to bring the suit to vindicate their voice. 9. The learned advocate appearing on behalf of the respondent Nos.1 to 4 – original plaintiff has relied upon the following decisions in support of his prayer to dismiss the present Special Civil Application:- (i) AIR 2004 SC 1801 (Sopan Sukhdev Sable & others Vs. Assistant Charity Commissioner and others. (ii)1996(2) GLH 393 (Yuvraj Prithvirajsinhji Vs. Maharani Rajendrakuverba and others). (iii)(1961) 64 BLR 235 (Khemchand Gurumal Vs. Parmanand Dipchand Hinduja). (iv)1966 (69) BLR 472 (Rajgopal Raghunathdas Somani Vs. Ramchandra Hajarimal Jhavar). (v)1966 GLR 1011 (Malek Chittu Rasul Vs. Pathan Mahmadkhan Kalukhan). (vi)1980 GLR 792 (Nadiad Nagarpalika, Nadiad Vs. Vithalbhai Zaverbhai Patel & Ors.). (vii)1998 (2) GLR 434 (Trustees of Hareshwar Mahadev SCA/14367/2008 11/25 JUDGMENT Trust Vs. Trustees of Shri Jasvantsinhji Audichya Brahman Boarding Vidyarthi Bhavan). Relying upon the decision of the Hon'ble Supreme Court in the case of Popat and Kotecha Property Vs. State Bank of India Staff Association, reported in (2005) 7 SCC 510 it is submitted that as there are serious disputed questions between the parties to the civil suit and the same cannot be decided at the time of considering application Ex.15 under Order 7 Rule 11 of the Code of Civil Procedure, the learned Chamber Judge has rightly rejected the said application. It is submitted that only in those cases where statements made by the plaintiff in the plaint without any doubt or dispute show that the suit is barred by the provisions of the Bombay Public Trust Act, which is not the case here, power under Order 7 Rule 11 of the Code of Civil Procedure can be exercised. Submitting accordingly it is requested to dismiss the present Special Civil Application. 10.Heard the learned advocates appearing on behalf of the respective parties. 11.Before considering the controversy/dispute in the suit, few proceedings pending before the Dy.Charity Commissioner / Assistant Charity Commissioner and SCA/14367/2008 12/25 JUDGMENT Dy.Charity Commissioner are required to be referred to and considered:- (i) Change Report No.810 of 2007 filed by the respondent No.1 herein regarding appointment of the trustees in the meeting held on 3/7/2005 is pending. (ii)Change Report No.638 of 2008 filed by the petitioner No.1 herein regarding elevation of new trustees (present petitioners) in the meeting dtd.18/5/2008 is pending before the Dy.Charity Commissioner. (iii)Another Change Report by the petitioner to delete the name of the trustees who are dead and whose term has expired being Change Report No.693 of 29008 is also pending. (iv)Application by the petitioner No.2 to the Assistant Charity Commissioner to cancel Change Report No.731 of 2007 filed by the respondents on the ground that no Change Reports for 1986, 1991, 1996, 2001 and 2006 elections were ever filed and the said Change Report is also pending. SCA/14367/2008 13/25 JUDGMENT Thus, the aforesaid Change Reports with respect to the the issue as to who are the real trustees of the respondent No.1, are pending before the concerned Charity Commissioner. Now, in light of the above, the reliefs sought in the suit is required to be considered. 12.As stated hereinabove, the respondent Nos.1 to 4 herein – original plaintiffs have instituted the aforesaid suit praying that the petitioners – defendant Nos.1 to 4 are neither members nor lifetime members of the trust and they are not legally elected trustees of the trust; they are not entitled to retain possession of the trust property being 313, Doshiwala-Pol, Kalupur, Ahmedabad and permanent injunction is also sought restraining the defendant Nos.1 to 4 from interfering with their possession of the disputed trust property. It is also further prayed to declare the appointment made by the defendant Nos.1 to 4 of Managing Committee of the trust as illegal and permanent injunction is also sought restraining the defendant Nos.1 to 4 from administering and/or managing the affairs of the trust and restraining them from operating bank accounts of the trust and restraining them from recovering rent etc. from the SCA/14367/2008 14/25 JUDGMENT tenants of the trust property and further restraining them from entering into any transaction with third parties with respect to the trust properties. 13.Considering the averments in the plaint it appears that it is the case on behalf of the original plaintiffs that the petitioners – original defendant Nos.1 to 4 are wrongly posing themselves as trustees and also posing 9 others as members of the Managing Committee and are trying to snatch away the administration of the trust and trust properties from the members of the trust. It is also averred in the plaint that the defendant Nos.1 to 4 are not qualified to become member of the trust much less trustees of the Committee Member. It is also the case on behalf of the plaintiff Nos.2 to 4 and defendant Nos.5 and 6 that they are appointed as trustees in 2005 and their term expires in 2010 and therefore, they are entitled to administer the management of the trust and the trust properties till end / expiry of the term. As stated above, the aforesaid three Change Reports with respect to the issue as to who are the trustees of the trust, are pending before the respective Charity Commissioner. Proceedings under sec.41A of the Bombay Public Trust Act are also SCA/14367/2008 15/25 JUDGMENT pending before the Charity Commissioner. Now, the dispute with respect to the properties of the trust is to be resolved by the concerned Charity Commissioner in the respective Change Reports. Even the dispute with respect to the management and administration of the trust is also required to be resolved and/or decided by the Charity Commissioner, more particularly u/s.41A of the Bombay Public Trust Act. Looking to the aforesaid prayers, it appears that there is a dispute between the plaintiff Nos.1 to 4 and defendants with respect to the the issue as to who are the trustees of the trust and secondly who has right to administer and manage the affairs of the trust properties and the trust. 14.The relevant provisions of the Bombay Public Trust Act are as under:- “Sec.22. Change.-- (1) Where any change occurs in any of the entries recorded in the register kept under Section 17, the trustee shall, within 90 days from the date of th occurrence of such change, or within 90 days from the date of the occurrence of such change, or where any change is desired in such entries in the interest SCA/14367/2008 16/25 JUDGMENT of the administration of such public interest, report such change or proposed change to the Deputy or Assistant Charity Commissioner in charge of the Public Trusts Registration Office where the register is kept. Such report shall be made in the prescribed form. (1A) Where the change to be reported under sub-section(1) relates to any immovable property,...... (2) For the purpose of verifying the correctness of the entries..... (3) If the Deputy or Assistant Charity Commissioner..... (4) Whenever an entry is amended or the trust is removed....” “Sec.41.A. Power of Commissioner to issue directions for the proper administration of the trust.-- (1) Subject to the provisions of this Act, the Charity Commissioner may from time to time issue directions to any trustees of a public trust or any person connected therewith, to SCA/14367/2008 17/25 JUDGMENT ensure that the trust is properly administered, and the income thereof is properly accounted for or duly appointed and applied to the subjects and for the purpose of the trust; and the Charity Commissioner may give directions to the trustees or such person if he finds that any property of the trust is in danger of being wasted, damaged, alienated or wrongfully sold, removed, removed or disposed of. (2) It shall be the duty of every trustee or of such person to comply with directions issued under sub-section (1).” “Sec.51. Consent of Charity Commissioner for institution of suit. (1) if the persons having an interest in any public interest intend to file a suit of the nature specified in Section 50, they shall apply to the Charity Commissioner in writing for his consent. If the Charity Commissioner after hearing the parties and making such inquiries (if any) as he thinks fit is satisfied that there is a prima facie case, he may within a period of SCA/14367/2008 18/25 JUDGMENT six months from the date on which the application is made, grant or refuse his consent to the institution of such suit. The order of the Charity Commissioner refusing his consent shall be in writing and shall state the reasons for the refusal. (2). If the Charity Commissioner refuses his consent to the institution of the suit under sub-section (1) the persons applying for such consent may file an appeal to the Maharashtra Revenue Tribunal constituted under the Bombay Revenue Tribunal Act, 1957 (XXXI of 1958), in the manner provided by this Act. (3). In every suit filed by persons having interest in any trust under Section 50, the Charity Commissioner shall be a necessary party. (4). Subject to the decision of the SCA/14367/2008 19/25 JUDGMENT Maharashtra Revenue Tribunal in appeal under Section 71, the decision of the Charity Commissioner under sub-section (1) shall be final and conclusive.” “Sec.56.B. Proceedings involving question affecting public charitable or religious purpose.-- (1) In any suit or legal proceedings in which any question affecting a public religious or charitable purpose is involved, the court shall not proceed to determine such question until after notice has been given to the Charity Commissioner. (2). If upon the receipt of such notice or otherwise the Charity Commissioner makes any application in that behalf, he shall be added as a party at any stage of such suit or proceedings. (3). In this section “Court” shall mean any Civil Court of competent jurisdiction in SCA/14367/2008 20/25 JUDGMENT the State of Maharashtra.” “Sec.68. Duties, functions and powers of Deputy or Assistant Charity Commissioner.-- for the purpose of this Act, the following shall be the duties and functions to be performed and powers to be exercised by the Deputy or Assistant Charity Commissioner for the region or sub-religion for which he is appointed, namely:- (a) to keep and maintain such books, entries and other documents as may be prescribed under Section 17; (b) to hold an inquiry under Section 19 or 22 for any of the purposes mentioned in the said section; (c) to record entries in the register kept under Section 17 and to make amendments in the said entries or the cancellation of the entries under Section 22; SCA/14367/2008 21/25 JUDGMENT (cc) to send a memorandum under Section 28-A; (d) to enter on and aspect any trust property, to call and inspect any proceedings of a trustee and to call for any return, statement, account or report from trustees or any person connected with a public trust under Section 37; (f) ..... (g) to exercise such other powers and to perform such other duties and functions as may be prescribed.” “Sec.80. Bar of jurisdiction.-- Save as expressly provided in this Act, no Civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealt with by any officer or authority under this Act and in respect of which the decision or order of such officer or authority has been made final and conclusive.” Now, considering sec.80 of the Bombay Public Trust Act, SCA/14367/2008 22/25 JUDGMENT no Civil Court shall have jurisdiction to decide or deal with any issue which is under the Bombay Public Trust Act to be decided or dealt with by any officer / authority under the said Act and in respect of which the decision or order of such officer or authority has been made final and conclusive. Even as per sec.51 of the Bombay Public Trust Act, if the persons having an interest in any public trust intend to file a suit of the nature specified in sec.50, they shall first apply to the Charity Commissioner in writing for his consent. Thus, before filing the suit with respect to the trust property and/or relief mentioned in sec.50 of the Act, prior consent of the Charity Commissioner is must. 15. Considering the above and nature of controversies and the issues in the suit and the reliefs sought in the aforesaid suit and considering the aforesaid provisions of the Bombay Public Trust Act, the suit in question is barred and not maintainable. Under the circumstances, the learned Chamber Judge ought to have allowed application Ex.15 and ought to have rejected the plaint in exercise of powers under Order 7 Rule 11 of the Code of Civil Procedure. 16.The view being taken by this Court is fortified by the SCA/14367/2008 23/25 JUDGMENT decision in the case of Keki Pestonji Jamadar (supra), Vileshkumar Shantilal Acharya (supra) and Swami Satyaprakashdasji Gurughanshyam Prasad Swami (supra) and the decision of the Hon'ble Supreme Court in the case of Lavjibhai Ratanjibhai (supra). As held in the aforesaid decisions whenever any dispute is to be resolved and decided by the officers under the Bombay Public Trust Act, Civil Court has no jurisdiction to entertain the suit with respect to such issue/ relief. 17.So far as the decision relied upon by the learned advocate appearing on behalf of the respondent Nos.1 to 4 – original plaintiffs are concerned, the same are not applicable and/or of any assistance to the respondents – plaintiffs on the facts of the case. In the case of Trustees of Hareshwar Mahadev Trust (supra), the dispute was with respect to the suit by trustees of one trust praying for removal of encroachment over its property by another trust