Bombay High Court
Shamlal vs Smt. Shantidevi on 3 October, 2012
Bench: S.V. Gangapurwala
1 fa 3061.09
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 3061 OF 2009
Seth Kasturmal Dalsukh Dharmashala
P.T.R. No. A-235, Dhule,
Station Area, Dondaicha,
Tq. Sindkheda, Dist. Dhule,
Through its Trustees namely;
1. Shamlal S/o Jankilal Agrawal,
Age : 70 Years, Occu. : Business,
R/o Near Agrawal Dharmashala,
Dondaicha, Tq. Sindkheda,
Dist. Dhule.
2. Gopal S/o Jagdish Agrawal,
Age : 50 Years, Occu. : Business,
R/o Ghat Road, Chalisgaon,
Tq. Chalisgaon, Dist. Jalgaon. .. Appellants
Versus
1. Smt. Shantidevi W/o Laxminarayan Agrawal,
Age : 60 Years, Occu. : Household,
2. Jagdish S/o Laxminarayan Agrawal,
Age : 43 Years, Occu. : Medical Practitioner,
3. Mahendra S/o Laxminarayan Agrawal,
Age : 43 Years, Occu. : Business,
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2 fa 3061.09
4. Krushnachandra S/o Laxminarayan Agrawal,
Age : 36 Years, Occu. : Business,
Nos. 1 to 4 R/o Koli Galli,
Jain Mandir, Pachora, Tq. Pachora,
Dist. Jalgaon.
5. Rajshree W/o Anil Agrawal,
Age : 34 Years, Occu. : Household,
C/o Anil Agrawal, 1, Bansilal Nagar,
Station Road, Aurangabad.
6. The Collector,
Dhule, Dist. Dhule.
7. The State of Maharashtra.
8. The Charity Commissioner,
Dwarka Circle, Nasik. .. Respondents
Shri S. P. Shah, Advocate for Appellants.
Shri P. B. Pawar, Advocate for Respondent Nos. 1 to 5.
Smt. R. K. Ladda, A.G.P. for Respondent Nos. 6 to 8.
CORAM : S. V. GANGAPURWALA, J.
RESERVED FOR JUDGMENT ON : 13/09/2012.
JUDGMENT PRONOUNCED ON : 03/10/2012
JUDGMENT :
. The present appeal is heard finally at the stage of
3 fa 3061.09
admission with the consent of learned counsel. The record and
proceedings are also received.
2. The only issue involved in the present appeal is about the
jurisdiction of the District Court, to try and entertain the suit for
declaration of ownership and recovery of possession in view of
Sec. 79 and 80 of the Bombay Public Trust Act (hereinafter
referred to as the "B. P. T. Act" for the sake of brevity).
3. The plaintiff a public trust registered under the provisions
of the B. P. T. Act has filed a suit for declaration of ownership
and possession. The District Court dismissed the suit for want of
jurisdiction holding that, in view of Sec. 80 read with Sec. 79 of
the B. P. T. Act, the Civil Court does not have the jurisdiction to
try and entertain the suit.
4. Shri S. P. Shah, the learned counsel for the
plaintiffs/appellants submits that the suit was filed for
possession and declaration of ownership after seeking necessary
sanction from the Charity Commissioner U/Sec. 51 of the B. P. T.
Act. The said suit was perfectly maintainable within the
meaning of Sec. 50 of the B. P. T. Act. According to the learned
4 fa 3061.09
counsel, suit was instituted before the District Court as is
contemplated U/Sec. 2(4) of the B. P. T. Act. The suit of the
plaintiffs was perfectly maintainable as per Sec. 50 (iv) (a), (p)
and (q).
5. The learned counsel relies on the judgment of Full Bench of
this Court in a case of Keki Pestonji Jamadar Vs. Rodabai
Khodadad Merwan Irani reported in 1972 Mh. L. J. 427.
6. Shri Pawar, the learned counsel for respondents submits
that the office of the Charity Commissioner has held that the
suit property is not a trust property. Now again the Civil Court
cannot go into the said question. In view of Sec. 79, 80 and 19 of
the B. P. T. Act the jurisdiction of the Civil Court is barred from
deciding the issue of ownership. The learned counsel relies on
the judgment of the Apex Court in a case of Church of North
India Vs. Lavjibhai Ratanjibhai and others reported in
(2005) 10 S.C.C. 760.
7. The learned counsel further submits that, even if it is
assumed that the Civil Court has got right to grant relief of
possession, still first the issue of ownership will have to be
5 fa 3061.09
adjudicated by the Charity Commissioner and then only the suit
for possession can be filed before Civil Court. The learned
counsel relies on the judgment of the learned Single Judge of this
Court in a case of Dev Chavta and another Vs. Ganesh
Mahadeo Deshpande and another reported in 1970 AIR
(Bom.) 412.
8.
Before I advert to the submissions canvassed by the
learned counsel, it would be relevant to refer to the relevant
clauses of Sec. 50 of the B. P. T. Act which reads as follows :
50. Suit by or against or relating to
public trusts or trustees or others In any case,
(i) ...........
(ii) where a direction or decree is required to
recover the possession of or to follow a
property belonging or alleged to be
belonging to a public trust or the
proceeds thereof or for an account of
such property or proceeds from a
trustee, ex-trustee, alienee, trespasser
or any other person including a person
holding adversely to the public trust but
not a tenant or licensee,
(iii) ...........
(iv) for any declaration or injunction in favour
of or against a public trust or trustee or
6 fa 3061.09
trustees or beneficiary thereof,
the Charity Commissioner after making such
enquiry as he thinks necessary, or two or more
persons having an interest in case the
suit is under subclauses ( i) to (iii), or one or
more such persons in case the suit is under
sub clause (iv) having obtained the consent in
writing of the Charity Commissioner as
provided in section 51 may institute a suit
whether contentious or not in the Court within
the local limits of whose jurisdiction the whole
or part of the subject matter of the trust is
situate, to obtain a decree for any of the
following relief's :
(a) an order for the recovery of the possession of such
property or proceeds thereof;
(b) .............
(c) .............
(d) .............
(e) .............
(f) .............
(p) declaring or denying any right in favour of
or against, a public trust or trustee or
trustees or beneficiary thereof an issuing
injunctions in appropriate cases; or
(q) granting any other relief as the nature of the
case may require which would be a condition
precedent to or consequential to any of the afores
aid relief's or is necessary in the interest of
7 fa 3061.09
the trust:
9. It is an admitted fact that, the Charity Commissioner has
accorded sanction to the plaintiffs to institute the suit in the
Court as per Sec. 51 of the B. P. T. Act and it is only after
obtaining sanction from the Charity Commissioner, the suit has
been instituted in the District Court.
10.
The suit filed is not the one invoking the general Civil
Jurisdiction of the Court within the meaning of Sec. 9 of the
Code of Civil Procedure, but is a suit filed before the District
Court i. e. the Court as contemplated U/Sec. 2(4) r/w Sec. 50 of
the B. P. T. Act.
11. Perusal of Sec. 50 of the B. P. T. Act it is manifest that the
trust or two or more persons having obtained the sanction in the
writing of the Charity Commissioner as provided in Sec. 51 can
institute the suit in the Court within the local limits of whose
jurisdiction the whole or part of the subject matter of the trust is
situated for the purpose of a decree for recovery of possession or
even for any relief as the nature of the case may require which
would be a condition precedent to or consequential to any of the
aforesaid relief or is necessary in the interest of the trust.
8 fa 3061.09
12. U/Sec. 50 (iv) of the B. P. T. Act a suit can be filed in the
Court even for relief of declaration and injunction in favour or
against a public trust. Section 50 also explicitly provides that a
suit for possession can be filed in the Court. Sub-Clause (q) of
Sec. 50(iv) further empowers the Court to grant any other relief
which would be a condition precedent or consequential to any of
the relief provided in Sec. 50. For claiming relief of possession, a
decision on question of ownership would be relevant. Unless the
plaintiff proves his ownership or any other status as regards the
property of which possession is sought, he would not be entitled
for relief of possession. As such, relief of declaration as to the
status of plaintiff qua the property would be condition precedent
for grant of relief of possession.
13. In the instant case, the plaintiff has sought possession of
the property on the ground that property is owned by it. The
enquiry into the title and relief of declaration of ownership would
be pre-requirement for relief of possession. In the light of said
fact also the relief claimed would be within the realm of the
District Court.
14. In the present case, as observed supra the sanction of the
9 fa 3061.09
Charity Commissioner has been obtained by the plaintiffs before
filing the suit. The suit is also not a suit filed U/Sec. 9 of the C. P.
C. invoking ordinary civil jurisdiction, but is a suit filed invoking
provisions of Sec. 50 of the B. P. T. Act i. e. the special statute
before the District Court i. e. a Court contemplated and defined
under Sec. 2(4) of the B. P. T. Act. The distinction will have to be
made in respect of suit filed in the Civil Court in its ordinary
civil jurisdiction invoking Sec. 9 of the C. P. C. and a suit filed
U/Sec. 50 of the B. P. T. Act before the District Court i. e. the
Court as defined U/Sec. 2(4) of the B. P. T. Act.
15. The B. P. T. Act is a special local Act. The suit U/Sec. 50 is
a special remedy before a special forum under the Act. The bar
as envisaged under Sec. 79 and 80 of the B. P. T. Act would not be
attracted in view of the provisions of Sec. 50 and 51 of the said
Act. Sec. 80 of the B. P. T. Act deals with Bar of jurisdiction of
Civil Court, but the said section proceeds and begins with the
phraseology "Save and expressly provided by this Act" connoting
thereby that other provisions of the Act are saved and shall not
be affected by the Bar engrafted in said sections. The suits or
applications as are expressly provided in Sec. 50, 51, 56A and 72
are saved and Court of competent jurisdiction can entertain it.
10 fa 3061.09
The Sections 50, 51, 79 and 80 of the B. P. T. Act will have to be
read in harmony. Attempt will have to be made to reconcile them
to avoid repugnancy. The provisions of the statute have to be
read in a manner they co-exists. Head on collusion of the
provisions of same statute has to be avoided. One provisions of
the statute cannot be read in a manner that would render other
provision superfluous or a dead letter.
16. The Full Bench of this Court in a case of Keki Pestonji
Jamadar Vs. Rodabai Khodadad Merwan Irani referred
supra has observed thus :
38. The decision of Chitale J. in Shri Adinath etc.
Mandir V. Shantappa that "a person who was not a
party to the proceedings under the Bombay Public
Trusts Act, 1950, but finds that his property is
registered as trust property pursuant to the said
proceedings, is not precluded under sections 79 and
80 of the Act from filing a suit for declaration of his
title to such property in a civil Court.", is, with
respect, correct, but we must add that the same result
would Follow whether the person who raises the
question regarding his title to the property was or was
not a party to the proceedings under section 19. The
question of ouster under section 80 has to be decided
by applying an objective test:"
11 fa 3061.09
17. In a case of Church of North India Vs. Lavajibhai
Ratanjibhai and others referred supra, the Apex Court was
also dealing with the aspect of the jurisdiction of the Civil Court
vis-a-vis the provisions of the B. P. T. Act. It appears that the
said case was arising out of the provisions of the Bombay Public
Trust Act as applicable to Gujrat. The relevant provisions as
contemplated in Clause (iv) (p) and (q) of Sec. 50 applicable to
Maharashtra is not available in Sec. 50 as applicable to Gujrat.
Moreover, the Apex Court in the said case of Church of North
India Vs. Lavajibhai Ratanjibhai and others referred supra
was considering the jurisdiction of the Civil Court and not the
Court as contemplated in Sec. 2(4) read with Sec. 50 of the B. P.
T. Act.
18. In para 76 of the said judgment, the Apex Court has
observed thus :
"Grant of prayer (c) for perpetual injunction would
also give rise to adjudication on the question as to
whether the Appellant herein had the legal right to
own the properties of the First District Church of
Brethren and administer or manage the same
although at the relevant time it was not registered
trust and although no amendment had been effected
in the registers and books maintained by the
12 fa 3061.09
Charity Commissioner in terms of Section 17 read
with Sections 21 and 22 of the Act. The plaintiffs
with a view to obtain an order of injunction
furthermore were required to establish that they
could file a suit for enforcement of right of the
Appellant as a religious trust and such a legal right
vests either in the plaintiff or in the Appellant
herein indirectly. Such a prayer, related to the
possession of the property, comes squarely within
the purview of the BPT Act. If the question as
regard recovery of possession of the property
belonging to a public trust squarely falls within the
purview of Section 50 of the Act, had such
application been filed before the Charity
Commissioner he was required to go into the
question as to whether the plaintiffs are persons
having interest in the trust and whether a consent
should be given to them to maintain a suit. Only
when, inter alia, such consent is granted, a suit
could have been filed in terms of Section 51 of the
Act. In the event of refusal to give consent, the
persons interested could have preferred an appeal."
19. Even in the said judgment, the Apex Court has held that, if
the Charity Commissioner grants sanction, a suit could have
been filed in terms of Sec. 51 of the B. P. T. Act.
20. In the light of the above discussion and so also as valid
sanction has been obtained by the plaintiff to file a suit for
13 fa 3061.09
possession and declaration of ownership, the suit was perfectly
maintainable U/Sec. 50 of the B. P. T. Act before the District
Court.
21. The defendants have raised a plea of res-judicata. The
Court would consider the same on its own merits.
22.
In view of the above, the impugned judgment and decree is
quashed and set aside. It is held that the District Court has
jurisdiction to try the instant suit. The parties shall appear
before the concerned District Court on 30.10.2012. Hearing of
the suit is expedited.
Sd/-
[ S. V. GANGAPURWALA, J. ]
bsb/Sept. 12
