Bombay High Court
Shri Deorao Bhuraji Wasule vs Smt. Ragini on 12 October, 2010
Bench: B. P. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 6184 OF 2004
1. Shri Deorao Bhuraji Wasule,
aged about 62 years,
occupation - Agriculturist,
r/o Division No. 1, Narkhed,
Tahsil - Narkhed,
District - Nagpur.
2. Shri Vishwanath s/o Ramaji Waghe
aged about 72 years, occupation -
Teacher and Agriculturist, r/o
Narkhed, Tahsil - Narkhed,
District - Nagpur. ... PETITIONERS
Versus
1. Smt. Ragini w/o Ramesh Gupta,
aged about 56 years,
occupation - Nil, r/o c/o Shri
Ramesh Gupta, Ex- MLC Narkhed,
Tahsil - Narkhed, Dist. Nagpur.
2. Shri Ramesh s/o Balmukund Gupta,
aged about 61 years, occupation -
Agriculturist, r/o Narkhed, Tahsil -
Narkhed, District - Nagpur.
3. Nagar Parishad, Narkhed,
through its Chief Officer,
Narkhed, District - Nagpur.
4. Joint Charity Commissioner,
::: Downloaded on - 09/06/2013 16:31:51 :::
2
Public Trust Office, Civil Lines,
Nagpur.
5. State of Maharashtra,
through Secretary Law Department,
Mantralaya, Mumbai - 32. ... RESPONDENTS
Shri A. Shelat, Advocate for the petitioners.
Shri P. C. Madkholkar, Advocate for respondents No. 1 & 2.
Shri Thakare, Advocate for respondent No. 3.
Shri A.M. Joshi, AGP for respondents No. 4 & 5.
.....
CORAM : B.P. DHARMADHIKARI, J.
OCTOBER 11, 2010.
ORAL JUDGMENT :
By this petition filed under Article 226 of Constitution
of India, the petitioners challenge the order dated 25.08.1983
passed in Change Report Inquiry No. 612 of 1983 in the matter
of a Public Trust. By said orders, the Deputy Charity
Commissioner, Nagpur Region, Nagpur, working under
Respondent No. 4 herein has held that property shown as
property of Public Trust by name Gupta Dharamshala deserved
to be deleted from the Register of Public Trust maintained by the
office of Respondent No. 4 and has further observed that as there
is no property of Trust, the Trust comes to an end. The entries of
the Trust made in the Public Trust register were also directed to
be deleted. This order was challenged initially before the
Division Bench and the petition was entertained as Public
Interest Litigation. On 28.12.2004, this Court granted interim
relief and restrained present Respondents No. 1 & 2 from
carrying on any construction activities on the site of Gupta
Dharamshala. This interim order continues to operate even
today. On 07.07.2010, Division Bench of this Court found that
the litigation was liable to be tried under the provisions of
Bombay Public Trust Act, 1950 (hereinafter referred to as the
Act) and, therefore, it was not inclined to continue to treat it as
Public Interest Litigation. Accordingly, the matter was directed
to be placed before the Single Judge.
2. In this background, I have heard Shri Shelat, learned
counsel for the petitioners, Shri Madkholkar, learned counsel for
respondents No. 1 & 2, Shri Thakare, learned counsel for
respondent No. 3 and Shri Joshi, learned AGP for respondent
No. 4 & 5.
3. The contention of Shri Shelat, learned counsel is,
after Trust was registered in the light of dedication effected vide
written document dated 16.04.1961, the persons executing that
document viz., Gauri Dullayabai and Shamabai did not remain
its owner. The trust was registered on 05.12.1961 and Shamabai
expired on 28.10.1962. The other lady viz. Gauri Dullayabai
expired on 10.05.1971. The present Respondent No. 2 moved
Deputy Charity Commissioner by filing an application under
Section 22-A of the Act and contended that Gauri Dullayabai
executed a Will in relation to property of Public Trust on
10.03.1970 and same was bequeathed to Respondent No. 2,
hence, the property needed to be deleted from Public Trust
register. Without issuing any notice or public advertisement or
public enquiry, Deputy Charity Commissioner mechanically
granted that request and thereby ordered de-registration of the
Trust.
4. Shri Shelat, learned counsel has pointed out that
Respondent No. 2 moved Deputy Charity Commissioner in 1983
and thereafter impugned order has been passed on 25.08.1983.
His contention is, after registration of Trust on 05.12.1961,
Deputy Charity Commissioner had no such jurisdiction and
power. He has contended that recourse to Section 22A of the Act
for said purpose is arbitrary and "particulars" required to be
looked into there must be shown to be in existence at the time
when Trust was registered. He has further contended that
particulars relevant under said provision are the particulars in
favour of the cause of Public Trust and a person claiming
adversely to such Trust is not entitled to invoke that jurisdiction.
In support of his contention, he has relied upon Full Bench
judgment of this Court in the case of K.P. Jamadar vs. K.M. Irani,
reported at AIR 1973 Bom. 130. In the alternative, without
prejudice to his contentions, he has pointed out that Trust was
created by two widows together and one widow i.e. Shamabai
expired on 28.10.1962 itself. The alleged Will has been executed
by surviving widow on 10.03.1970. The said Will, therefore,
cannot have any effect insofar as dedication of property to Public
Trust by Shamabai is concerned. It is his further contention that
on 10.03.1970 Gauri Dullayabai was also not an owner and
competent to execute any such Will.
5. To point out to this Court the obligations of the
Trustees, learned counsel has placed reliance upon the judgment
in the case of A.A. Gopalakrishnana vs. Cochin Devaswom Board,
reported at (2007) 7 SCC 482. To show that alternate remedy
cannot be a bar in such a situation, he has relied upon the
judgment in the case of Collector of Customs, Cochin vs. A.S. Bava,
reported at AIR 1968 SC 13, Nusli vs. New India Assurance Co.
Ltd., reported at 2010 (2) Mh.L.J. 978, M.P. State Agro Industries
Development Corporation Ltd. vs. Jahan Khan, reported at (2007)
10 SCC 88, Maharashtra State Judicial Service Association vs.
High Court of Judicature at Bombay, reported at (2002) 3 SCC
244 and Hirday Narain vs. L.T. Officer, Bareilly, reported at AIR
1971 SC 33. To urge that Public Trust cannot fail and at the
most doctrine of Cyprus can be applied, he has relied upon the
judgment in the case of Trustees of HEH the Nizam's Pilgrimage
Money Trust vs. I.T. Commissioner, reported at AIR 2000 SC 1802.
6. Because of the objections on account of delay and
laches, the learned counsel has invited attention to contents of
writ petition particularly paras 1, 11 and 14. He argues that the
moment impugned order came to the notice of the petitioners,
present writ petition has been filed.
7. Shri Thakare, learned counsel for respondent No. 3 -
Municipal Council has relied upon reply affidavit as filed to show
that though Respondent No. 1 claims that on the strength of
Will, the property came to be mutated in her name, there are no
records with the Municipal Council.
8. Shri Madkholkar, learned counsel for respondents No.
1 & 2 has raised preliminary objection about tenability of present
writ petition. He points out that the order passed in 1983 has
been questioned 21 years thereafter. Writ Petition was initially
entertained as PIL and after order dated 07.07.2010, treating it
as an individual grievance, there are no amendments made in it.
The petitioners do not have any status and locus to challenge the
impugned order as they have not shown themselves to be
interested persons. He has further urged that there is no
allegation of any deceit or fraud in the matter and hence in such
writ petition, this Court should not interfere after expiry of more
than 27 years.
9. He has also invited attention to subsequent events.
He points out that the structure standing on plot and to be
utilized as Dharamshala is burnt completely and is no longer
available after 1993. He has further stated that Petitioner No. 2
before this Court is signatory to resolution passed by Respondent
No. 3 - Municipal Council approving mutation of property in
dispute in the name of Respondent No. 1. He has further
contended that property was never used as Dharamshala and
was always seen as her private property by Gauri Dullayabai and
Shamabai. Therefore only a Will was executed by Gauri
Dullayabai. The rent from tenants was also collected by Gauri
Dullayabai and there was no dedication to charity at all. He has
further pointed out that alleged document constituting Trust
required a Scheme to be framed by Trustees but no such Scheme
was framed by them. The petitioners had a remedy of filing
revision before the Joint Charity Commissioner (Respondent No.
4) and as that remedy has not been exhausted, present writ
petition should not be entertained.
10. In his brief reply, Shri Shelat, learned counsel has
again invited attention to paras 1, 11, 12 and 14 to show the
status and locus of the petitioners. He has further urged that as
grievance is being made against an order which is without
jurisdiction and Trust still exists as Public Trust, there is no
question of any delay or laches in the matter. He has invited
attention to rejoinder as filed to show that petitioner No. 2 was
never associated with any resolution allegedly passed by the
Municipal Council. He has pointed out that petitioner No. 1 was
never a member of Standing Committee.
11. The perusal of Trust deed executed by Gauri
Dullayabai and Shamabai shows a dedication in presenti for
Dharamshala. The execution or contents of this document dated
16.04.1961 are not in dispute between the parties. The
registration of Gupta Dharamshala as desired therein vide Public
Trust registration No.P-47(A) on 05.12.1961 is also not in
dispute. The death of Shamabai on 28.10.1962 and death of
Gauri Dullayabai on 10.05.1971 is also not being questioned by
anybody. The fact that Respondent No.1 sought deletion of said
property as trust property from the register maintained by the
office of Respondent No. 4 in 1983 is also not in dispute.
Respondent No. 1 sought that deletion on the strength of a Will
executed by Gauri Dullayabai on 10.03.1970. The perusal of
impugned order dated 25.08.1983 shows that Change Report
Inquiry No. 612 of 1983 under Section 22A of the Bombay Public
Trusts Act, 1950, was registered after Respondent No. 1 sought
deletion of said property. The authority has found that there
were no opponents before it. It noted that in 1971 there were
seven persons as Trustees and out of them only trustees at Sr.
Nos. 3, 4 and 6 were alive. It appears that said authority
recorded their statements and there trustees deposed that they
were not in possession of Trust property at all and they never
acted as trustees and property in question was never used as
Dharamshala. The authority thereafter has found that Trust is
not complete until and unless Trust property vests in trustees for
the purpose for which Trust is constituted. In view of this
position, it has considered some judgments delivered under the
provisions of Indian Trust Act and then recorded a finding that
property registered as property belonging to registered Trust in
fact does not belong to Public trust in question. Because of this
finding, it has passed the impugned order. By the impugned
order, it deleted that property as property of public trust and
simultaneously as the purpose of trust could not have been
achieved, it also declared that Trust has come to an end.
12. The perusal of judgment of Full Bench of this Court in
the case of K.P. Jamadar vs. K.M. Irani (supra), is important here.
In para 6, three questions which fell for determination before the
Hon'ble Full Bench are noted and the important observations are
contained in paras 18, 24, 27, 28 and 29. In para 18, the
Hon'ble Full Bench has found that provisions of Section 79 of the
Bombay Public Trust Act are too clear to admit any doubt or
difficulty as regards the description of questions which the
Assistant Charity Commissioner has to decide or deal with under
the Act. A little later, it is observed that authorities under the
said Act have to decide whether the Trust is valid and lawful and
can, therefore, be said to exist. A deed of Trust is held to be
normally enough proof of existence of such Trust. In para 22,
Full Bench has found that provisions under Bombay Public Trust
Act were too summary for appropriate adjudication of title
disputes. It is also noticed in para 24 that it is no part of their
function under Section 19 of the Bombay Public Trust Act to
decide the claims which are adverse to the trust. In para 25, the
same findings are again recorded more emphatically. In para 28,
the provisions of Section 22-A of the Act are looked into. Pre-
condition for its exercise is found to be that a particular relating
to a public trust must have remained to be inquired into. The
Hon'ble Full Bench found that it takes one back to Section 19. If
the Act and the Rules contemplated in terms that the inquiry
must be limited to the contentions of persons interested in the
trust, there is no place in that inquiry for a person who wants to
set up a title which is hostile to the trust. Such a claim is not a
"particular relating to" public trust nor can it be said that "has
remained to be inquired into". In para 29, again it is noted that
facts pertaining to history of title to public trust do not find a
place in the provisions of Section 18(5) and Rule 6 as they do
not constitute particulars in sense in which the word is used
therein.
13. The Full Bench, therefore, leaves no manner of doubt
that a person who wants a declaration or direction to the
prejudice of Public Trust cannot approach the authorities under
Section 22A of the Bombay Public Trust Act. Here, as already
noted above, the registration of Trust has already taken place on
05.12.1961. Respondent No. 1 in her application for deleting
the property has not pointed out any "particular" as required by
Section 22-A of the Act. On the contrary, she has relied upon a
subsequent event which has taken place on 10.03.1970 i.e. a Will
executed by Gauri Dullayabai in her favour. The effort before the
Deputy Charity Commissioner was to show that though Trust
was registered and property was recorded against its name, Trust
never came into being. It is apparent that such subsequent
events cannot form a subject matter of enquiry under Section 22-
A of the Act at all. Thus, Respondent No. 1 who wanted a
finding adverse to public trust could not have taken recourse to
Section 22-A of the Act and in any case the material which she
pressed into service as "particular" was not a legal and valid
material under the said provision. As already noted above, the
entire consideration of controversy by Deputy Charity
Commissioner runs counter to scheme of Section 22-A of the Act
as explained by the Hon'ble Full Bench and his application of
mind as also approach, therefore, is unsustainable. It appears
that the position in law as prevailing and explained by the
Hon'ble Full Bench was not pointed out to Deputy Charity
Commissioner when he passed the impugned order.
14. The Trust had already come into existence on
05.12.1961. It was registered only under the Bombay Public
Trust Act. In view of this position, Gauri Dullayabai as also
Shamabai ceased to have any title to the property dedicated to
charitable purpose. Shamabai the other party to document
settling trust expired shortly thereafter i.e. on 28.10.1962. Thus,
when two persons had created a public trust and it was
accordingly registered, one fails to understand how because of
Will executed by only one of them, the property has been held to
devolve upon present respondent No.1. It is apparent that in
view of the limited scope of enquiry available under Section 22-A
of the Act and also the finding that Deputy Charity
Commissioner has exercised jurisdiction not available to him in
the matter, this issue cannot be answered conclusively in present
matter. However, this fact again has material bearing if the
alleged claim of Respondent No. 1 is to enquired into.
15. Shri Shelat, learned counsel has relied upon the
judgment of the learned Single Judge of this Court in the case of
Ignatius Louis vs. The C.B.E. and Trustees Co. Ltd., reported at
1986 (1) Bom. C.R. 377, where this Court has found that a Will
subsequently executed insofar as it bequeathed the property
subjected to Trust to plaintiff before it, cannot confer any benefit
on him since the settler of trust had lost power to bequeath it by
Will. The observations apply with full force even in present
circumstances.
16. Once it is found that the order of Deputy Charity
Commissioner of Trust is without jurisdiction, the other
questions like locus and status of present petitioners and the
delay or laches on their part in approaching this Court need to be
looked into. Judgments shown by Shri Shelat, learned counsel
show that alternate remedy does not always bar the recourse
to extra ordinary jurisdiction under Article 226 of Constitution
of India. In some judgments, revision has been found to be
not an equally effective alternate remedy. Here, it is
important to note that initially this Court had entertained the
grievance of the petitioners as Public Interest Litigation. The
facts also show that the Deputy Charity Commissioner did not
issue any public notice before conducting enquiry under Section
22-A of the Act and on recording of statement of Trustees
produced before him, a finding that Trust never came into
existence has been recorded. The Hon'ble Apex Court has in the
case of A.A. Gopalakrishnan vs. Cochin Devaswom Board, reported
at (2007) 7 SCC 482, found that the properties of deities,
temples and Devaswom Boards are required to be protected and
safeguarded by their Trustees. It is also noticed that in many
circumstances, persons entrusted with the duty of managing and
safeguarding the properties have usurped and misappropriated
property by setting up false claims or ownership or tenancy, or
adverse possession. The Hon'ble Apex Court has found that this
has become possible only because of passive or active collusion
of the authorities concerned. Such acts of "fences eating the
crops" are directed to be dealt with sternly. The Hon'ble Apex
Court has expressed that the Government, members or trustees
of boards/ trusts and devotees have to be vigilant to prevent
such usurpation or encroachment. It is also held to be the duty
of the Courts to protect and safeguard the properties of religious
and charitable institutions from wrongful claims or
misappropriation. In this situation, I find that the argument that
remedy of filing revision was available to the petitioners is
misconceived and it cannot stop the petitioners from invoking
the jurisdiction of this Court. Said order dated 22/25.08.1983 in
Change Report Inquiry No. 612 of 1983 is, therefore, void and of
no legal consequences.
17. As already stated above, the petitioners were not
parties to proceedings before the Deputy Charity Commissioner.
They did not get any opportunity to oppose those proceedings
and they have submitted that they have approached this Court
after getting the knowledge.
18. The perusal of para 1 of the petition shows that the
petitioners have stated that they were approaching this Court in
general public interest to preserve and safeguard the properties
which are dedicated to the members of the general public and
specially to residents of Narkhed town. They have also alleged
that the property has been usurped by Respondent No. 1 with
active connivance of Respondent No. 2 and other respondents
who are public authorities, though duty bound to preserve the
public interest, have miserably failed to perform their duties. It
is stated that petitioner No. 1 is residing in Narkhed town, the
place where Dharamshala is there since his birth and forefathers
were also residing in that town. He is interested and concerned
in welfare of the Narkhed town. Petitioner No. 2 is also stated to
be residing there and similarly interested. It is urged that if
cheap accommodation is available for persons at Narkhed, the
business of the town can increase.
19. In para 21, the petitioners have stated that after
purported release of trust property by Deputy Charity
Commissioner a fire occurred, which destroyed it. The debris
and material on the plot was cleared and plot was made open.
The petitioners then noticed commencement of construction
activity on this open plot 15 days prior to filing of petition.
Hence, they made inquiries and learnt that property of public
trust was fraudulently being converted as private property. The
petitioners stated that they were applying for relevant
documents and same would be placed before this Court. In the
entire petition, the petitioners have not stated that the
establishment or public trust by name Gupta Dharamshala had
started working. The order of Deputy Charity Commissioner
shows a finding that such Dharamshala never came into being.
The surviving trustees also deposed accordingly. The petitioners
who claimed to be residents and challenge the said order,
therefore, could have been aware of the fact that the property is
dedicated to Dharamshala even before fire. Story pleaded by
them is, therefore, an eye wash and unsatisfactory. It is apparent
that they have not approached with clean hands to this Court.
The explanation for delay and laches given by them is not
acceptable.
20. However, the facts emerging show that public trust by
name Gupta Dharamshala still exists. Illegal and void order
passed under section 22A cannot have the effect of wiping it out.
There is no provision in the Bombay Public Trust Act, 1950, for its de-
registration. The trust has got open plot as its property. Same can be
put to appropriate charitable purpose. The law of the land records
Respondent No. 4 as custodian of the Trusts and trust properties.
When in 1983 Respondent No. 1 approached Deputy Charity
Commissioner with application for deletion of the property from
register of public trust, said authority was duty bound to take steps to
protect the interest of the trust and to protect the trust property.
Those steps have not been taken. Respondent No. 4 is now party
before this Court and he is aware of the controversy and also of the
orders passed. Respondent No. 4, therefore, can take appropriate
cognizance of the matter and act in accordance with law.
21. With these observations and findings, writ petition is
disposed of. Rule accordingly. However, in the facts and
circumstances of the case, there shall be no order as to costs.
JUDGE
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*GS.
