NEUTRAL CITATION
C/SCA/5804/2008 JUDGMENT DATED: 10/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5804 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair NO
copy of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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SHASHIL PATRIC DANIEL
Versus
CHARITY COMMISSIONER & 5 other(s)
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Appearance:
MR DEEP D VYAS(3869) for the Petitioner(s) No. 1
for the Respondent(s) No. 3.1,3.2
DECEASED LITIGANT for the Respondent(s) No. 3
MS. DHARITRI PANCHOLI, AGP for the Respondent(s) No. 1
MR C B UPADHYAYA(3508) for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 4,5,6
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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NEUTRAL CITATION
C/SCA/5804/2008 JUDGMENT DATED: 10/08/2023
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Date : 10/08/2023
ORAL JUDGMENT
1. By way of the present petition, the petitioner herein has prayed for the following reliefs:
"(A) THAT THE HON'BLE COURT MAY BE PLEASED TO issue a writ of mandamus or certiorari or writ, direction or order in the nature of mandamus or certiorari directing the respondent Nos.1 and 2 to take immediate appropriate action for preservation of trust properties of the respondent No.3 trust including evicting the respondent Nos.4 to 6 and any other person who are found to be in unauthorized possession and be further pleased to pass appropriate directions to have the trust properties being utilized for the objectives of the trust;
(B) THAT THE HON'BLE COURT MAY BE PLEASED TO issue a writ of mandamus or certiorari or writ, direction or order in the nature of mandamus or certiorari quashing and setting aside the order dated 21.8.07 passed by the in-charge Joint Charity Commissioner in Misc. Application No.26/6 and be further pleased to allow the Misc. Application No.26/6 filed by the present petitioner with consequential directions;
(C) Pending hearing and final disposal of the present petition the Hon'ble Court may be pleased to pass appropriate directions and/or orders directing the respondent Nos. 1 and 2 to take appropriate action against erring office holders of the respondent No.3 trust and to evict them from the trust property;
(D) THAT THE HON'BLE COURT MAY BE PLEASED TO grant exparte ad interim relief in terms of prayer (C) aforesaid; (E) THAT THE HON'BLE COURT MAY BE PLEASED TO pass any such other and further orders deemed fit and expedient in the interest of justice;
(F) THAT THE HON'BLE COURT MAY BE PLEASED TO award the costs of the petition."
2. Heard Mr. Deep D. Vyas, learned advocate appearing Page 2 of 17 Downloaded on : Sun Sep 17 01:04:00 IST 2023 NEUTRAL CITATION C/SCA/5804/2008 JUDGMENT DATED: 10/08/2023 undefined for the petitioner and Ms. Dharitri Pancholi, learned Assistant Government Pleader appearing for the respondent- State.
3. The petitioner herein has challenged the order passed by the In-charge Joint Charity Commissioner, Vadodara in Misc. Application No. 26 of 2006 dated 21.08.2007 under the provision of Section 41-A of the Bombay Public Trusts Act, 1950, wherein, the petitioner herein in the said application being Misc. Civil Application No. 26 of 2006 duly produced at Page.105-A. That one another Civil Misc. Application No. 8 of 2006 also came to be filed by the tenant of the said property in question.
4. That the In-charge Joint Charity Commissioner, Vadodara decided both the applications being Misc. Application No. 26 of 2006 filed by the petitioner herein and Misc. Application No. 8 of 2006 filed by the tenant of the property below Exh.29 and passed the order dated 21.08.2007, whereby, the respondent no.2 rejected the said applications, which is the impugned in the present petition.
5.1. Mr. Deep D. Vyas, learned advocate submitted that Page 3 of 17 Downloaded on : Sun Sep 17 01:04:00 IST 2023 NEUTRAL CITATION C/SCA/5804/2008 JUDGMENT DATED: 10/08/2023 undefined the petitioner herein is a Member of the Church of North India (C.N.I.), a registered public Trust. That the petitioner herein has been blessed with 'Baptism' in the aforesaid Church and the petitioner was the member of 'Pastoret Committee' of the C.N.I. from 2001 to 2007, which manages the disputed property. That during the petitioner's tenure with the Committee, the petitioner was Treasurer for the year 2005-2006 and Secretary for the year 2006-2007. It was submitted that the petitioner herein by virtue of the Rules, completed two terms of the Committee membership. The petitioner rendered honorary services with the churches and the institutions, managed by the C.N.I., including the properties of the entitlement and the ownership of the respondent no.3 Trust.
5.2. In the aforesaid set of facts, Mr. Vyas, learned advocate submitted that it is the case of the petitioner that on the disputed property exists a Church, which was approximately 130 years old. That on the eve of celebrating the 125 th year of the Church, the Church was majorly renovated and the petitioner herein has been given honorary services contributing to the Page 4 of 17 Downloaded on : Sun Sep 17 01:04:00 IST 2023 NEUTRAL CITATION C/SCA/5804/2008 JUDGMENT DATED: 10/08/2023 undefined renovation of the Church.
5.3. It was submitted that the petitioner herein prepared the designs and the structural plans for the renovated property and had also supervised the site progress of the construction, on honorary basis. Mr. Vyas, learned advocate submitted that, as and when, there were funds needed for the aforesaid renovation on the disputed property, for which the petitioner had contributed/ secured donation, for the Trust. The petitioner regularly visited the Church on the said property and gave honorary services whenever required.
5.4. Mr. Vyas, learned advocate submitted that the petitioner is B.Sc. Chemistry Graduate and have done Civil Draftsman course from Methodist Technical Institute, Baroda. The petitioner was working as Designing Assistant and Site Supervisor with Shri Pradeep C. Shah, Consulting Engineer and Contractor since past 5 years.
5.5. Mr. Vyas, learned advocate submitted that the petitioner was also Committee Member, since last 5 years of the Page 5 of 17 Downloaded on : Sun Sep 17 01:04:00 IST 2023 NEUTRAL CITATION C/SCA/5804/2008 JUDGMENT DATED: 10/08/2023 undefined 'Bible Society of India' an international organization, for the Nadiad division and was also the Promotional Secretary since 4 years of 'The Helping Hand', a charitable trust, which are involved for financially, socially, educationally and religiously helping to the needy persons.
5.6. In the aforesaid background, the petitioner herein is aggrieved by the order impugned passed by the In-charge Joint Commissioner as referred above.
5.7. Mr. Vyas, learned advocate submitted that the property in question being Survey No. 4271/ admeasuring approximately 2213.19 sq.mtrs. of land in Ranibaug, Dist.: Nadiad, which came to be transferred in favour of the C.N.I. by the I.P. Mission Trust Association on 29.01.1970. In view thereof, the property in question belong to the Trust. It was submitted that the respondent no.5 was in unauthorized occupation of approximately 75.46 sq.mtrs. of land of the Trust and further encroached a portion of land 25 x 30.
5.8. Mr. Vyas, learned advocate submitted that the Page 6 of 17 Downloaded on : Sun Sep 17 01:04:00 IST 2023 NEUTRAL CITATION C/SCA/5804/2008 JUDGMENT DATED: 10/08/2023 undefined respondent no.6 was also in unauthorized occupation of approximately 57.72 sq.mtrs. of land of the trust and has now further encroached the portion of land admeasuring 10 x 10 and has constructed 3 varanda's of about 10 x 10 in properties of the respondent Trust. It was submitted that, though the petitioner had requested, no information was provided by the respondent, and hence, the petitioner bona-fidely believed that no resolutions for the aforesaid have been passed by the respondent Trust nor there has been any compliance under the law, by which the possession of the trust properties could be enjoyed by the said persons. It was submitted that respondent no.5 - Nilakshiben is the daughter-in-law of John Nanji Parmar, an Ex-trustee of the respondent no.3 trust and respondent no.6 is a close family friend of Johnbhai Patel, trustee of respondent no.3 Trust. That Johnbhai Patel, the respondent no.3/1 himself is in unauthorized occupation of 69.60 sq.mtrs. of land of the trust property. 5.9. It was also submitted that it was mandatory for the public trust and the trustees to have obtained the permission from the Charity Commissioner under the provisions of Section Page 7 of 17 Downloaded on : Sun Sep 17 01:04:00 IST 2023 NEUTRAL CITATION C/SCA/5804/2008 JUDGMENT DATED: 10/08/2023 undefined 36 of the Act, 1950, neither the Trust nor the aforesaid four persons ever applied to the Charity Commissioner and no details with regard to the nature of occupation of the aforesaid persons as also the resolution and / or transaction by which the possession is enjoyed by the aforesaid persons is supplied. 5.10. In view of the aforesaid illegal possession by the trustees and their relatives of the trust property, the petitioner herein was constrained to prefer an application before the Charity Commissioner under the provisions of Section 41-A of the Act being Misc. Civil Application No. 15/2. The said application came to be contested by the respondent no.3 trust by filing reply vide their application below Exh.12. The Charity Commissioner was pleased to allow the said application vide order dated 09.03.2005, which came to be challenged by the respondent no.3 trust and respondent no.4 - transferee by filing Special Civil Application No. 17168 of 2005 and Special Civil Application No. 21876 of 2005, which came to be disposed of by order dated 05.07.2006, copy of which is produced at Annexure-H. 5.11. It was submitted that, the application came to be Page 8 of 17 Downloaded on : Sun Sep 17 01:04:00 IST 2023 NEUTRAL CITATION C/SCA/5804/2008 JUDGMENT DATED: 10/08/2023 undefined filed for deletion of the aforesaid property from the records of the Charity Commissioner, as a trust property by filing Change Report No. 202 of 2003. It was also submitted that since the order passed by the Charity Commissioner was not complied with nor did it appear to the subordinate authorities, i.e. respondent no.2 had initiated action of illegal possession of the trust properties. It was submitted that, therefore, the petitioner was constrained to file Misc. Application Application No. 26 of 2006 with other persons with a request to direct the trustees to place on record the details of transactions which had been entered by the trust and it was also requested that since the alleged rights of the respondent nos. 4 to 6 have been held to be illegal, the properties being under injunction, for direction to remove the illegal possession of the trust and for utilizing the same for the purpose of the objectives of the trust. It was requested for recovery of market rent for the illegal occupation of the respondent nos. 4 to 6. The respondent no.4 had also filed Civil Misc. Application No. 8 of 2006, wherein, both the applications came to be dismissed by the impugned order dated 21.08.2007 passed below Exh.29, as referred above.
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NEUTRAL CITATION C/SCA/5804/2008 JUDGMENT DATED: 10/08/2023 undefined 5.12. Placing reliance on the aforesaid submissions, Mr. Vyas, learned advocate submitted that the petitioner herein being beneficiary of the trust is only concerned with the proper administration of the trust. It was submitted that, in view thereof, the application under Section 41-A of the Act, 1950 came to be preferred with the said relief, keeping the noble objective of welfare of the trust. However, because the Charity Commissioner have not considered the said applications filed by the petitioner herein under the provision of Section 41-A of the Act, 1950, the petitioner has constrained to approach this Court by way of the present petition.
6.1. Per contra, Ms. Dharitri Pancholi, learned Assistant Government Pleader appearing for the respondent- State submitted that the petitioner herein by the prayers as prayed for in the application below being Misc. Civil Application No. 26 prayed for the reliefs beyond the purview of Section 41-A of the Act, wherein, the petitioner herein has prayed for restoration of the possession of the property in question and for the said relief, the respondent- Charity Commissioner rightly rejected the Page 10 of 17 Downloaded on : Sun Sep 17 01:04:00 IST 2023 NEUTRAL CITATION C/SCA/5804/2008 JUDGMENT DATED: 10/08/2023 undefined application filed by the petitioner by impugned order. 6.2. It was submitted by Ms. Pancholi, learned AGP that for such relief, the petitioner ought to have taken recourse of Section 79 of the Act, 1950, wherein, the question with regard to the trust property can be adjudicated by the competent court and prayed to reject the present petition.
7. Considering the submissions advanced by the learned advocates appearing for the respective parties, on perusal of the prayers as prayed for, it appears that the petitioner herein has prayed for a direction to restore the possession of the subject matter property, that the encroachment be directed to be removed and the property which was given on rent and the loss which was incurred towards the rent be deposited in the account of the Trust.
8. The petitioner herein in the said application being Misc. Civil Application No. 26 of 2006 duly produced at Page- 105-A, prayed for the following reliefs:
"(11) Therefore it is prayed that:
(1) In view of all the aforesaid facts, be pleased to grant the Page 11 of 17 Downloaded on : Sun Sep 17 01:04:00 IST 2023 NEUTRAL CITATION C/SCA/5804/2008 JUDGMENT DATED: 10/08/2023 undefined application of the applicant and to direct the respondents to produce without delay all the original transactions pertaining to the handing over of the possession of the immovable property belonging to the trust as mentioned in the application. (2) As the respondents are relatives and friends, be pleased to issue directions to vacate the possession of the property belonging to trust as mentioned in the application for the purpose of objects registered in the P.T.R. (3) Be pleased to issue directions to the respondents to deposit into the bank account of the trust damages as assessed on the basis of rents prevailing for such period during which they have used property described in the application. (4) Be pleased to give any direction to protect the Immovable property of the trust."
9. That one other application being No. 8 of 2006 came to be filed by the tenant of the said property in question.
10. That the In-charge Joint Charity Commissioner, Vadodara decided both the applications being Misc. Application No. 26 of 2006 filed by the petitioner herein and Misc. application No. 8 of 2006 filed by the tenant of the property below Exh.29 and passed the order dated 21.08.2007, which is the impugned in the present petition. The respondent no.2 rejected the application considering the following:
"In view of aforesaid provision, the power to decide as to whether the property belongs to any Trust or not lies with Assistant Charity Commissioner/ Deputy Charity Commissioner.
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NEUTRAL CITATION C/SCA/5804/2008 JUDGMENT DATED: 10/08/2023 undefined The power only to appeal against the same order lies with Assistant Charity Commissioner/ Deputy Charity Commissioner. It is true that the disputed property is registered as property of trust by change report in P.T.R.. Such properties are registered by mistake not belongs to trust. Therefore, dispute to delete the same is pending with Assistant Charity Commissioner. In this condition, no decision may be taken with subject to the possession of the trust in section 41 (1) as mentioned in Section 79 in the Bombay Public Trust Act-1950. Further, Ld. Advocate Shri H.M.Shah had relied upon decision taken in J.G.L.R.-2003 (1) 392 Naveenchandra Jasani Vs. Pravinchandra Jasani for the Respondent no. 3 to 5 of Miscellaneous Application No. 08/2006. He had relied on 'if there is a question of judicial order then Joint Charity Commissioner can not give notice.' No decision of the property under Section 41/A may be taken but the said property is registered as property belonging to trust as on today. When the properties registered as trust property, the power to issue directions lies with Joint Charity Commissioner under Section 41/A. Therefore the question for reconsideration of directions in connection with Misc. Application no. 15/2002 does not arise. The evidences to be led in respect of the fact as to whether properties belong to trust or not, are to be considered when produced in the dispute pending before Assistant Charity Commissioner. But such dispute is pending therefore it can not be say that the disputed properties do not belong to Trust. When the properties of trust registered in P.T.R., the power to give instructions lies to Charity Commissioner/ Joint Charity Commissioner. Therefore, the order passed therein Judicial Misc. Application No. 15/02, no question arise to reconsider the matter. Hence, the Misc. Application no.8/06 is liable to be rejected.
(13) Looking to the Judicial Misc. Application no. 26/2006, the Applicants have only made representations about the said properties and have prayed to pass the instructions to produce the (details of) transactions without delay which have been made regarding the immovable properties of the Trust. But the entire details about the property regarding its status, renters, ownership have been mentioned in the representation of the Applicants vide exhibit-1. In such circumstances, it is not clear as to about which transactions the Applicant is demanding for. Also there is no any clarification as to which type of relief does he has sought about such transactions. Also such an opinion could not be accepted that after seeking the relief about Page 13 of 17 Downloaded on : Sun Sep 17 01:04:00 IST 2023 NEUTRAL CITATION C/SCA/5804/2008 JUDGMENT DATED: 10/08/2023 undefined producing the information and by using that relief, the new relief have been sought. Also if on considering other reliefs of the application, then the applicant is aware about the fact that the properties of Trust have been given on rent. Despite that, the relief is sought to vacate its possession. Such type of relief could not be granted by this Office. As such relief is of Civil type, hence it could not be included in Section 41/A and when such Civil relief according to para-11(2) is not permissible, then there is no any question to permit the relief as per para-11(3) also. Hence, the said application is liable to be rejected, the Final Order is pronounced as below."
11. The operative part of the said order reads thus:
"Miscellaneous Application no. 8/2006 is been rejected. Judicial Misc. Application no. 26/2006 is rejected. No any order as to cost. The parties to be informed about the part of Order which is to be complied. The entire copy of the Order is to be forwarded to The Charity Commissioner, Gujarat State, Ahmedabad and to The Assistant Charity Commissioner, Vadodara.
This Order is pronounced today on 21/08/2007 at 15:30 hours.
Vadodara sd/-illegible
(K. R. Chaudhri)
Date : 21/08/2007 I/C. Joint Charity Commissioner,
Vadodara - Section, at Vadodara"
12. The Charity Commissioner while considering the said prayer, rejected the said application on the ground that the prayers as prayed for, would not fall within the domain of Joint Charity Commissioner. The dispute with regard to the title of the property would be taken care of in the proceedings pending before the Charity Commissioner. Further, it was held that the respondent authority under Section 41-A of the Act is required Page 14 of 17 Downloaded on : Sun Sep 17 01:04:00 IST 2023 NEUTRAL CITATION C/SCA/5804/2008 JUDGMENT DATED: 10/08/2023 undefined to consider with regard to the welfare of the trust and give directions with regard to the proper administration of the trust and that the objects of the Trust are complied with in true spirit.
13. At this stage, it is apposite to refer to Section 41-A of the Bombay Public Trusts Act, 1950 reads thus:
"41A. Power of Charity Commissioner to issue directions to trustees and other persons.
(1) Subject to the provisions of this Act, the Charity Commissioner may, from time to time, issue directions to any trustee of a public trust or any person connected therewith to ensure that such trust is properly administered and the income thereof is properly accounted for or duly appropriated and applied to the objects and for the purposes of the trust. (2) It shall be the duty of every such trustee and person to comply with a direction issued to him under sub-section (1)."
13.1. Section 79 of the Bombay Public Trusts Act, 1950 reads thus:
"79. Decision of property as Public trust property: (1) Any question, [whether or not a trust exists and such trust is a public trust] or particular property is the property of such trust, shall be decided by the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal as provided by this Act.
(2) The decision of the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal, as the case may be, shall, unless set aside by the decision of the court [on application] or of the High Court in [***] appeal be final and conclusive."Page 15 of 17 Downloaded on : Sun Sep 17 01:04:00 IST 2023
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14. Considering the aforesaid findings arrived at by the competent authority, in the opinion of this Court, no interference is called for in the impugned order, wherein, the prayers were mainly with regard to the trust property which has been considered by the respondent authority and while considering the said application, it was also considered that the proceeding with respect to the title of the trust property, are pending before the office of the Joint Charity Commissioner and that the same would be considered in accordance with law. Further, the proceedings are at large and pending before the office of the Joint Charity Commissioner, the Charity Commissioner thought it fit to not to interfere in the proceedings under Section 41-A of the Act, 1950. On the aforesaid short point, the said application filed by the petitioner under Section 41-A of the Act, 1950 came to be rejected.
15. Considering the prayers as prayed for by the petitioner herein and the impugned order passed by the respondent no.1, no error could be said to have been committed by the respondent - In-charge Joint Charity Commissioner in Page 16 of 17 Downloaded on : Sun Sep 17 01:04:00 IST 2023 NEUTRAL CITATION C/SCA/5804/2008 JUDGMENT DATED: 10/08/2023 undefined passing the impugned order dated 21.08.2007 and hence no interference is called for in the said order. It is however, expected that the Charity Commissioner being loco-parentis of the trust, would take care of the interest of the trust. So far as the prayer-A is concerned, the petitioner herein has prayed for a direction that the Charity Commissioner may take appropriate action for preservation of the trust properties. In the opinion of this Court, since the proceedings at large are pending between the parties qua title, the same would be taken care by the Assistant Charity Commissioner, in accordance with law. In view thereof, no interference is called for in the order impugned dated 21.08.2007 passed by the respondent- In-Charge Joint Charity Commissioner.
16. For the foregoing reasons, the petition stands dismissed. Interim relief, if any, stands vacated. Rule is discharged.
(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 17 of 17 Downloaded on : Sun Sep 17 01:04:00 IST 2023