Harriet Ezikile And Ors. vs Municipal Corporation Of Delhi ...
1995 Latest Caselaw 12 Del

JUDGMENT

Usha Mehra, J.

(1) Plaintiffs I and 2 are stated to be the active members of the Methodist Church of India. They have been regularly participating and attending each and every religious function organized by the Methodist Church of India, (defendant No.3 herein), which was established for the advancement of religious and charitable purposes. Defendant No.1 is the Municipal Corporation of Delhi. Defendant No.2 is the competent authority. Defendant No.4 is the Chavan Rishi International Ltd. Defendant No.5 is M/s Cosmos Builders & Promoters Ltd.

(2) It is the case of the plaintiffs that defendant No.3 has committed the breach of the express or constructive clauses of the Trust created for public purposes which are of charitable and religious nature. The said defendant has also mis administered the Trust property for their personal gain. Plaintiffs having interest in the affairs of the Trust filed this suit.

(3) It is further the case of the plaintiffs that defendant No.3 is possessed of land admeasuring 12,558 sq.yds. comprising in Municipal No.4'-A, 4-B and 4-C, Battery Lane, Civil Lines, Delhi-110054. The said property was purchased by the Board of Foreign Missions of the Methodist episcopal Church in the year 1916 and since then that p

(4) This application has been contested by defendant No.3, inter alia, on the ground that the present relief sought in representative capacity of Christian community under Section 92 of the Code of Civil Procedure (in short Civil Procedure Code .) and Order I Rule 8, Cpc, is barred by the principle of constructive resjudicata. Some other Christian namely Northern India Christian Association, S/Shri Issac Bhatti, S.M.Lal and Shamshad George/had filed a suit bearing No.1034/92 in representative capacity seeking same relief as sought in this case.. Their application was dismissed. Therefore, the present suit by these plaintiffs in representative capacity is barred by the principle of constructive resjudicata. Moreover, the plaintiffs have no locus standi. The allegations of misappropriation, cheating etc. are vague, uncertain and general in nature. In the absence of any specific allegation, the application under Section 92, Cpc, is liable to be dismissed. The suit against defendant No.5 who is neither a public charitable .trust nor a religious institution is also not maintainable. Rev.Father Issac P.Mann and Sh.V.K. Singh vacated the bungalows in favor of defendant No.3 and so did Maj-Michel. Defendant No.3 had filed a suit in the High Court bearing Suit No-1810/91, which has since been settled. The defendant No.5 had to pay Rs.4 crores in terms of the said settlement. Pursuance to the said settlement vacant possession of the entire property including bungalows, servant quarters was given to defendant No.5. There upon defendant No.5 erected the entire project. The construction of the entire project has already been completed. Completion certificate has also been obtained. Defendant No.3 was not in a position to manage the property as this property was not yielding any income nor defendant No.3 was able to earn anything out of the same. It is in this background that this property was given to defendant No.5 for a consideration which is for the benefit of the Trust.

(5) I have heard the learned counsel for the parties and perused the record. In order to appreciate their contention, the provisions of Section 92, Civil Procedure Code ., have to be gone into. The same is reproduced as under:- "92.Public Charities - (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust the Advocate General or two or more persons having an interest in the trust and having obtained the (leave of the Court) may institute a suit whether contentious or not, in the principle Civil Court of original jurisdiction or in any other court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject matter of the trust is suitable to obtain a decree- (a) removing any trustee, (b) appointing a new trustee, (c) vesting any property in a trustee (cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property, (d) directing accounts and enquiries, (e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust, (f) authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged, (g) settling a scheme, or (h) granting such further or other relief as the nature of the case may require."

(6) In the plaint most of the grievances expressed by the plaintiffs are that the defendant No.3 has collected huge amount and in violation of the sanctioned lay out plan is constructing housing complex. According to the plaintiffs the defendant No. 1 while sanctioning the lay out plan had imposed condition No.9 indicating that the flats were to be used 'for advancement of religious and charitable activities. Once the property vests with defendant No.3 and was to be used as per plaintiff's own showing, for advancement of religious and charitable activities, then it was for the plaintiffs to allege specifically as to how by selling these flats to the general public it has committed breach of the trust. Condition No.9 as pointed out by plaintiffs was modified by defendant No.1 in July,1993 when it allowed the defendants to part with possession of these plots and flats to the general public. But the sale proceeds received from the same were to be utilised for religious and charitable purposes. It is not the case of the plaintiffs that from the sale proceeds of these flats defendant No.3 is not utilising the amount for religious or charitable purposes. Purina facie, the plaintiffs have also not been able to prove that it is a Church property. The only purpose for which the property was acquired by defendant No.3, as per plaintiffs' own showing, was for religious and charitable activities. It does not mean that the land could not be sold. It only means that the sale proceeds of the same or any earning made from this land has to be utilised for religious and charitable activities. To this extent affidavit has already been filed by defendant No.3 before defendant No.1. It was also incorporated in its resolution that the sale proceeds of these flats, constructed on this land acquired by defendant No.3, shall be utilised for religious and charitable activities. Therefore, apparently it cannot be said that any breach has been committed by defendant No.3 nor any such breach has been alleged specifically in the plaint. In the absence of any specific allegation it can be said that provisions of Section 92 have not been complied with.

(7) Perusal of copy of Decision No.2317/STG dated 5th 0ctober,1993, shows that decision was taken by the authorities i.e. by Defendant Nos. 1 and 3 that the trust authorities shall submit an undertaking that the proceeds of this project shall not be used for any profit making purpose. The undertaking was to be in consonance with the basic object of the trust which is imparting education, giving treatment and is engaged in other charitable functions. Therefore, the basic purpose being educational and charitable, the sale proceeds of the same have to be utilised for the said purpose. It is not the case of the plaintiffs that the sale proceeds have been used for any other purpose than the one mentioned above, or that the same have been used for profit making. In the absence of any such allegation and averments, it cannot be said that any public interest has been violated or breach has been committed. None of the averments made in the suit involves any public interest. As already pointed out above, the grievance expressed by the plaintiffs is, primarily on the ground that there is violation of the condition of sanction of the lay out plan which provided that the houses were to be allotted only to the Church staff. Unfortunately for the plaintiffs this condition has been modified by defendant No.1. Therefore, there is apparently no violation. Moreover, grievance on this account cannot be attributed towards the breach of the trust.

(8) In fact, according to plaintiffs' own showing, defendant No.3, a public Trust, had acquired the land in question for the advancement of religious and charitable activities. The suit can only proceed if there are specific allegation that there is breach of this trust. It is not the case of the plaintiffs that as per trust deed, flats built on this land were to be allotted only to Church staff. This was a condition imposed by M.C.D. which condition No.9 subsequently stood modified. Hence so far as trust is concerned apparently no breach can be alleged nor pleaded. In this case as already referred to above, it is not the case of the plaintiffs that the sale proceeds are misused or that condition No.9 was term of the trust. In the absence of the same no case is made out. In fact no allegation of breach of trust qua the sale proceeds have been alleged. Therefore, in the absence of the same no permission can be granted. In this regard reference can be had to the decision of the Supreme Court in the case of Charan Singh & Anr. V. Darsitan Singh & Ors. . The plaintiffs have relied more on condition No.9 imposed by defendant No.1, rather than on the trust document. That condition No.9 cannot be the subject matter of the grant of permission under Section 92, CPC. If there is any Violation of any of the terms imposed by M.C.D., i.e. defendant No.1, the remedy is not by way of present suit. Remedy for the same lies somewhere else. Reference was also made by the plaintiffs to Division Nine, Chapter-1, dealing with "Trusteeship of Church Property". Para 1002 Article Ii under the head "The Trust Association of the Methodist Church in India" reads as under:- "1002.Art.II. The Trust Association of the Methodist Church in India. 1. The Trust Association appointed by the General Conference or by its Executive Council shall hold, acquire, buy, sell, lease and mortgage movable and immovable properties as trustees for the Methodist Church in India and its connectional organizations. 2. It shall promote and safeguard the financial interests of the Church and its connectional organizations in accordance with the objects of the Methodist Church in India and its Discipline."

(9) The bare reading of this para shows that it is not in any way curtailing the power of defendant No.3 from selling the acquired land and building upon it flats and selling the same. The only condition imposed is that it should be in the financial interest of the Church. Counsel for defendant No.3 rightly pointed out that this land was not yielding any income nor defendant No.3 was in a position to achieve the object of the Trust i.e. for carrying out religious and charitable activities. Therefore, in order to have financial interest of the Trust to achieve the advancement of religious and charitable activities this project was entered into. Sale proceeds of the same would be utilised for this object. Therefore, apparently, I see no reason to conclude that breach has been committed by defendant No.3. In fact, according to plaintiffs' own showing the land was acquired by defendant No.3, therefore, it belongs to defendant No.3 and that defendant No.3 has entered into agreement with defendant No.5 which agreement has already been approved by this Court in Suit No-1810/91. Moreover, it has been pointed out by counsel for defendant No.3 that similar application was filed in representative capacity by others which has already been dismissed.

(10) For the reasons stated above, I find that it is not a fit case for grant of permission to sue in representative capacity. The application is accordingly dismissed.