Karnataka High Court

Shree 1008 Mahaveer Bhagwan vs Shri.Mahavir Jain Chaitalya Of ... on 31 March, 2022

Bench: Suraj Govindaraj

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                                                             WP No. 145233 of 2020


                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                DATED THIS THE 31ST DAY OF MARCH, 2022

                                                 BEFORE
                              THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
                               WRIT PETITION NO. 145233 OF 2020 (GM-R/C)
                      BETWEEN:

                      1.    SHREE 1008 MAHAVEER BHAGWAN
                            DIGAMBAR JAIN BASTI,
                            VYAVASTHAPAK SANGH
                            (PATIL BHANDU), BASTI GALLI, MACHHE,
                            TQ and DIST: BELAGAVI.

                            REPRESENTED BY ITS PRESIDENT
                            DR.PADMARAJ S/O PRAKASH PATIL,
                            AGE: 36 YEARS, OCC: DOCTOR,
                            R/O: BASTI GALLI, MACHHE,
                            TQ and DIST: BELAGAVI,
                            PIN CODE: 590014.

                      2.    SHREE 1008 MAHAVEER BHAGWAN
                            DIGAMBAR JAIN BASTI,
                            VYAVASTHAPAK SANGH
                            (PATIL BHANDU), BASTI GALLI, MACHHE,
                            TQ and DIST: BELAGAVI.
SAROJA                      REPRESENTED BY SECRETARY,
HANGARAKI
                            SHRI.SANTOSH S/O DADA PATIL,
Digitally signed by         AGE: 49 YEARS, OCC: PVT. SERVICE,
SAROJA HANGARAKI
Location: Dharwad
                            R/O: BASTI GALLI, MACHHE,
Date: 2022.04.04
14:35:22 +0530
                            TQ and DIST BELAGAVI,
                            PIN CODE: 590014.

                      3.    SHRI.GUNDU S/O PAYANNA PATIL
                            AGE: 97 YEARS, OCC: EARLIER TRUSTEE,
                            R/O: BASTI GALLI, MACHHE,
                            TQ and DIST BELAGAVI, PIN CODE: 590014.

                                                                      ...PETITIONERS
                      (BY SRI. SANJAY S KATAGERI, ADVOCATE)
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                                   WP No. 145233 of 2020


AND:

1.   SHRI.MAHAVIR JAIN CHAITALYA OF MACHHE
     TQ and DIST: BELAGAVI,
     REPRESENTED BY ITS PRESIDENT,
     SHRI.MAHAVIR S/O JAYPAL PATIL
     AGE: 51 YEARS, OCC: PRIVATE WORK,
     R/O: BASTI GALLI, MACHHE,
     TQ and DIST BELAGAVI,
     PIN CODE: 590014.

2.   SHRI.KALLAPPA S/O TAVANAPPA TIGADOLLI
     AGE: 55 YEARS,
     OCC: BUSINESS and SECRETARY OF
     THE SAID TRUST MAHAVIR JAIN
     CHAITLYA OF MACHHE,
     BASTI GALLI, MACHHE,
     TQ and DIST: BELAGAVI-590014.

3.   SHRI.ANIL KUMAR S/O BASVANT ANGOLKAR
     AGE: 50 YEARS,
     OCC: AGRICULTURE AND VICE-PRESIDENT
     OF THE SAID TRUST,
     R/O: BASTI GALLI, MACHHE,
     TQ and DIST BELAGAVI,
     PIN CODE: 590014.

4.   SHRI.RAVI S/O DHANAPAL SUROSHI
     AGE: 50 YEARS,
     OCC: AGRICULTURE and TRUSTEE OF SAID TRUST,
     R/O: BASTI GALLI, MACHHE,
     TQ and DIST BELAGAVI,
     PIN CODE: 590014.

5.   SHRI.JEETENDRA S/O AJIT CHOUGULA
     AGE: 50 YEARS,
     OCC: AGRICULTURE and TRUSTEE OF SAID TRUST,
     R/O: GANAPAT GALLI, MACHHE,
     TQ and DIST BELAGAVI,
     PIN CODE: 590014.

6.   SHRI.SAMUDRAVIJAY S/O CHANDAPPA CHOUGULA
     AGE: 60 YEARS,
     OCC: PRIVATE WORK and TRUSTEE OF SAID TRUST,
     R/O: BELGAONKAR GALLI,
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                                   WP No. 145233 of 2020


     WAGHWADE CROSS, MACHHE,
     TQ and DIST BELAGAVI,
     PIN CODE: 590014.

7.   SHRI.VRASHABHNATH S/O DHARMU HIRAKKI
     AGE: 60 YEARS,
     OCC: AGRICULTURE and TRUSTEE OF SAID TRUST,
     R/O: BASTI GALLI, MACHHE,
     TQ and DIST BELAGAVI,
     PIN CODE: 590014.

8.   SHRI.SHANTINATH S/O BASVANT PUJARI
     AGE: 58 YEARS,
     OCC: AGRICULTURE and TRUSTEE OF SAID TRUST,
     R/O: PUJARI COMPLEX,
     KHANAPUR ROAD, MACHHE,
     TQ and DIST BELAGAVI,
     PIN CODE: 590014.

9.   SHRI.PRAMOD S/O GUNDU SAROSHI
     AGE: 46 YEARS,
     OCC: AGRICULTURE and TRUSTEE OF SAID TRUST,
     R/O: GANAPAT GALLI, MACHHE,
     TQ and DIST BELAGAVI,
     PIN CODE: 590014.

10. SHRI.RAJU S/O CHAMU HUDED
    AGE: 52 YEARS,
    OCC: AGRICULTURE and TRUSTEE OF SAID TRUST,
    R/O: TIPU SULTAN NAGAR,
    JAMBOTI ROAD, MACHHE,
    TQ and DIST BELAGAVI,
    PIN CODE: 590014.

11. SHRI.BHARATESH S/O MAHAVEER PUJARI
    AGE: 32 YEARS,
    OCC: AGRICULTURE and TRUSTEE OF SAID TRUST,
    R/O: RAM NAGAR,
    KHANAPUR ROAD, MACHHE,
    TQ and DIST BELAGAVI,
    PIN CODE: 590014.

12. SHRI.ANANT S/O SHANTINATH PATIL
    AGE: 30 YEARS,
    OCC: AGRICULTURE and TRUSTEE OF SAID TRUST,
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                                  WP No. 145233 of 2020


   R/O: WAGHWADE ROAD,
   NEAR ARIHANT TEA STALL, MACHHE,
   TQ and DIST BELAGAVI,
   PIN CODE: 590014.

13. SHRI.NAGESH S/O TAVANAPPA MAJGAONKAR
    AGE: 46 YEARS,
    OCC: AGRICULTURE and TRUSTEE OF SAID TRUST,
    R/O: KHANAPUR ROAD,
    BEHIND LOTUS BAR, MACHHE,
    TQ and DIST BELAGAVI,
    PIN CODE: 590014.

14. SHRI.ASHOK S/O MAHAVEER PUJARI
    AGE: 44 YEARS,
    OCC: AGRICULTURE and TRUSTEE OF SAID TRUST,
    R/O: PUJARI COMPLEX,
    KHANAPUR ROAD, MACHHE,
    TQ and DIST BELAGAVI,
    PIN CODE: 590014.

15. SHRI.CHANDRAHAS S/O DHARMARAJ UPADHYE
    AGE: 44 YEARS,
    OCC: PRIVATE WORK and TRUSTEE OF SAID TRUST,
    R/O: GANAPAL GALLI, MACHHE,
    TQ and DIST BELAGAVI,
    PIN CODE: 590014.

                                       ...RESPONDENTS
(BY SRI. SHREEVATSA HEGDE, ADVOCATE)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY
OTHER APPROPRIATE WRIT OR ORDER OR DIRECTION, BY
QUASHING THE IMPUGNED ORDER DATED 27.01.2020
PASSED IN MISCELLANEOUS APPLICATION NO.280/2019 BY
THE LEARNED II ADDL. DISTRICT JUDGE,BELAGAVI AS PER
ANNEXURE-Q HEREIN BY ALLOWING THIS WRIT PETITION
AND    CONSEQUENTIALLY      DISMISSING  THE    SIAD
MISCELLANEOUS APPLICATION NO.280/2019 AS FILED BY
THE RESPONDENTS HEREIN.
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                                         WP No. 145233 of 2020


     THIS PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:

                             ORDER

1. Sri. Sanjay Katageri, learned counsel for the petitioners

submits that petitioner No.3 has expired on 07.02.2022 and

since he is on record in his official capacity, there are no

legal representatives of petitioner No.3 required to be

brought on record. His submission is taken on record.

Petition stands abated insofar as petitioner No.3 is

concerned as per the submission made by the learned

counsel Sri. Sanjay S. Katageri.

2. The petitioners are before this Court seeking for the following

reliefs:

a) Issue a writ in the nature of certiorari or any other appropriate writ or order or direction, by quashing the impugned order dated 27.01.2020 passed in Miscellaneous Application No.280/2019 by the learned II Addl. District Judge, Belagavi as per Annexure-Q herein by allowing this writ petition and consequentially dismissing the said Miscellaneous Application No.280/2019 as filed by the respondents herein.

b) Issue such any other order or writ or direction as this Hon'ble Court deems fit in the facts and circumstances of the case, in the interest of justice and equity.

WP No. 145233 of 2020

3. Misc. Application No.280/2019 had been filed by respondent

No.1 under Sections 3 and 7 of the Charitable and Religious

Trusts Act, 1920 (hereinafter referred to as 'the Act of 1920),

seeking a declaration that the bye-law prepared and

accepted as per resolution No.4 and Managing Committee

elected as per resolution No.5, in the General Body meeting

and the applicant (respondent No.1) as a lawful Managing

Committee and office bearers of the applicant Trust, as per

the Resolution No.5 dated 13.10.2019 from the period from

13.10.2019 to 12.10.2024 and the names of various persons

occupying various positions was given. The District Court

vide its order dated 27.01.2020 allowed the said application

and approved the Managing Committee members as sought

for in the application.

4. The petitioners claim that, earlier the trust namely Sri.

Mahavir Jain Chaitalya of Machhe had been registered under

the Bombay Public Trust Act, 1950 (hereinafter referred to as

'the BPT Act', for brevity), on 31.05.1952. Subsequent to

repeal of the BPT Act, the petitioner Society has been

formed by one of the trustees and certain others and

WP No. 145233 of 2020

subsequent to the registration of the Trust, petitioner No.1 is

running the activities. It is on that basis that the petitioners

are before this Court contending that the order passed by the

District Court could not have been passed without due notice

to the petitioners and that the District Court did not have

jurisdiction under Section 3 or 7 of the Act of 1920 to pass

such an order.

5. Sri. Sanjay S. Katageri, learned counsel for the petitioners

would submit that the petitioner Society is now seized all the

properties and activities and in fact the property never

belonged to Sri.Mahavir Jain Chaitalya of Machhe, but

belonged to certain Patil brothers. It is only the right to

maintain and perform pooja, which was vested in the Trust

and a Society is now formed for better administration of the

temple and the properties. As such, he submits that the

order passed by the District Court is required to be set aside.

6. Sri. Shreevatsa Hegde, learned counsel for the respondents

would however submit that the petitioners have no locus to

file the present petition inasmuch as the petitioner Society

cannot be said to have taken possession of or ownership of

WP No. 145233 of 2020

the properties of the Trust. The Trust was only registered

under the BPT Act for the purpose of better administration.

The Trust has never ceased its operation. The Trust

continues to be in existence and therefore, the trustees had

approached the District Court under Section 3 and 7 of the

Act of 1920, for an opinion and direction of the District Court

as regards the administration of the Trust. He submits that

the petitioners do not have any locus, the petition is required

to be dismissed and the order of the District Court, in terms

of Section 7 of the Act of 1920, being proper and correct,

does not require to be disturbed.

7. Heard Sri. Sanjay S. Katageri, learned counsel for the

petitioners, Sri. Shreevatsa Hegde, learned counsel for

respondents 1 to 15 and perused the papers.

8. This Court has dealt with the issues raised in the present

matter in W.P.No.101436/2018 and connected matters

disposed of on 01.12.2021, in the case of Paschim Vibhag

Shikshan Mandan Bijagari Vs. The Commissioner and

Appellate Authority, Department of Public Education and

Others. In the said judgment, this Court has categorically

WP No. 145233 of 2020

opined that, on the repeal of the BPT Act, the Trust would

not cease to be in existence but Trust would continue to be

in existence, only the governance thereof under the BPT Act

came to an end. The Trust could approach the District Court

under Sections 3 and 7 of the Act of 1920 for the limited

purpose as stated therein. The Trust or the Trustees cannot

approach the District Court for the purpose of repudiation of

the Managing Committee and/or approval of the Managing

Committee, since the same would not come within the

purview of either Section 3 or Section 7 of the Act of 1920.

9. Section 3 of the Act of 1920 deals only with furnishing of

particulars as regards the nature and objects of the trust,

value condition of management and application of the

subject matter of the trust and the income belonging thereto,

as also for direction that the accounts of the trust shall be

examined and audited. Section 3 only provides for

information to be furnished on an application being made.

Section 3 does not provide for approval or repudiation of the

Managing Committee.

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WP No. 145233 of 2020

10. Similarly, in respect of Section 7 of the Act of 1920, this

Court has held that a Trustee can approach the Court

seeking for opinion, advise or direction on any question

affecting the Management or administration of the trust

property and the District Court exercising its powers can

provide such information, advice or direction.

11. In the present case, what was sought for as referred to supra

by the respondent No.1 is for approval of the Managing

Committee said to have been elected and resolutions having

already been passed. What the applicant had sought for is

an approval by the District Court and there is no opinion,

advise or direction, which had been sought for in the said

proceedings. The District Court allowed the application and

approved the resolutions without giving any opinion or

advice. Such approval of a resolution already passed by so

called Managing Committee in my considered opinion would

not come within the purview of opinion, advice or direction

under Section 7 of the Act of 1920, the purport and scope of

Section 7 being restricted to providing of an opinion and

advice or direction and nothing more.

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WP No. 145233 of 2020

12. In view of the above, I am of the considered opinion that the

District Court could not have approved the resolutions

already passed by the Managing Committee of respondent

No.1 and therefore, the said order is required to be quashed.

13. As regards the claim of the petitioners regarding the

ownership of the property, the right vested in the trust and

formation of a Society whether the Society is property formed

and whether in fact the Society could be formed, would have

to be adjudicated in a properly constituted proceedings.

Apart there from, whenever there are any issues relating to

management of a trust and/or connected matters, the Code

of Civil Procedure, 1980 provides for an adequate remedy

under Section 92 thereof.

14. Section 92 of the Code of Civil Procedure, 1980 reads as

under:

Section 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 principal Civil Court of original jurisdiction or in any other

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WP No. 145233 of 2020

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 situate to obtain a decree,-

(a) removing any trustee;

(b) appointing a new trustee;

(bb) for delivery of possession of any trust property against a person who has ceased to be trustee or has been removed."

(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 inquires;

(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

(f) authorizing 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.

(2) Save as provided by the Religious Endowments Act, 1863 (20 of 1863) 4[or by any corresponding law in force in 5[the territories which, immediately before the 1st November, 1956, were comprised in Part B States]], no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with provisions of that sub-section.

(3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion

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WP No. 145233 of 2020

thereof to be applied cy pres in one or more the following circumstances, namely :-

(a) where the original purposes of the trust, in whole or in part,-

(i) have been, as far as may be, fulfilled; or

(ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust;

(b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or

(c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or

(d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or

(e) where the original purposes, in whole or in part, have, since they were laid down,-

(i) been adequately provided for by other means, or

(ii) ceased, as being useless or harmful to the community, or

(iii) ceased to be, in law, charitable, or

(iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.

15. This Court vide its order dated 17.12.2021 passed in

W.P.No.111276/2019, in the case of Shri Chandrahas &

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WP No. 145233 of 2020

Another Vs. Shri. Rohan Anil Salve and Another, while

dealing with a similar issue set aside the order of the District

Court and the contentions of the petitioners and contesting

respondents therein to initiate appropriate proceedings

before the appropriate forum and to establish their rights in

respect of the affairs was kept open.

16. In view thereof, I am of the considered opinion that the said

order dated 01.12.2021 passed in W.P.No.101436/2018 and

the order dated 17.12.2021 passed in W.P.No.111276/2019

are applicable to the present case also. Hence I pass the

following:

ORDER

a. Writ petition is allowed.

b. Certiorari is issued. The order dated

27.01.2020 passed in Misc. Application

No.280/2019 by the II Addl. District Judge,

Belagavi, is hereby quashed.