Gujarat High Court
Shashil Patric Daniel vs Charity Commissioner on 10 August, 2023
Bench: Vaibhavi D. Nanavati
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
Page 1 of 17
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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
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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
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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
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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
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'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
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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
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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
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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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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
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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
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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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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
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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
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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."
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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
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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
