Delhi District Court
Satish Kumar Oswal vs The Indian Association Of on 7 April, 2007
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IN THE COURT OF SH. J.P. NARAIN,
CIVIL JUDGE : DELHI
Suit No.1535/06
Satish Kumar Oswal
Plaintiff
Versus
The Indian Association of
The Experiment in International Living
Defendant
ORDER:
By this order, I shall decide an application U/o 7 Rule 11 CPC filed by the
applicant/defendant seeking rejection of the plaint on following grounds:
(a) That the plaint fails to disclose any cause of action.
(b) The suit filed by the plaintiff is expressly barred under the provisions of section 41 the Specific Relief Act.
(c) The suit is expressly barred under Section 50 of the Bombay Public Trusts Act, 1950
(d) The suit is barred under section 20 (b) of the CPC as the defendant is a permanent resident of Mumbai 2 and has no base in Delhi.
(e) The plaintiff has approached this Hon'ble Court with unclean hands by making statements on oath which are false to his knowledge.
2. I have perused the plaint. The plaintiff has sought the following relief by way of the present suit:
(a) pass a decree of permanent injunction in favour of the plaintiff and against the defendants thereby restraining the defendants, their employees, agents etc. from illegally appointing any person as Community Chairperson Delhi Centre.
(b) Pass a decree of permanent injunction in favour of the plaintiff and against the defendants thereby restraining the defendants, their employees, agents etc. from misappropriating the funds of the defendant No.1 for their own personal use for local as well as foreign trips.
3. Admittedly defendant No.1 in its meeting held on 13.8.06 has duly nominated Ms. Namita Singh as the community chairperson of Delhi centre and therefore the prayer made in para (a) of the prayer 3 clause has become infructuous. The present suit has been filed on 27.10.2006 i.e. much after the nomination.
4. As regards the injunction restraining the defendants from misappropriating the funds of defendant No.1 this court has no jurisdiction without express permission of the charity commissioner. Admittedly, defendant No.1 is a public charitable trust duly registered under the Bombay Public Trust Act, 1950 and is therefore governed by the provisions of the Act of 1950 Section 51 of the Bombay Public Trust Act. Section 51 of the said Act provides as follows:
51. Consent of charity commissioner for institution of suit-(1) if the persons having an interest in any public trust intend to file a suit of the nature specified in section 50, they shall apply to the charity commissioner in writing for his consent.
5. Section 50 of the Bombay Public Trust Act, 1950 provides as follows:
Under this section application can be made for the suspension, removal or discharge of trustees in the circumstances or on the grounds mentioned in 4 clause (a) to (i) of sub-section (1).
The charity commissioner may in accordance with the provisions of sub-section (2) by order appoint any person as a trustee or may also remove or discharge any trustee for any of the reasons specified in sub-section (1). But such order shall be deemed to be a decree of the Court and an appeal will lie to the High Court.
However, the provisions of the Act as applicable to Gujarat State are different in that in Gujarat the power to appoint trustees is vested in Court. But in Maharashtra the power has come to be vested in the Charity Commissioner as the Chairty Commissioner is generally of the rank of District Judge. The vesting of the power in Charity Commissioner facilitates quick action in interest of trust.
Formerly an application for removal of a trustees on the ground of breach of trust had to be made by a suit. (AIR 1923 Bom. 20). But under the provisions of the above section the Charity Commissioner is empowered to hear such application and to dispose of the same.
47AA. [Power of Charity Commissioner to apply to Court for appointment of new trustee where trustee 5 convicted under Act.] Deleted by Mah. 20 of 1971, s.
33.
47A. [Power to Court to vest property in new trustee.] Deleted by Mah. 20 of 1971, s. 33.
47B. [Court not to appoint Charity Commissioner as trustee of religious trust and Chairty Commissioner not to accept such trust if managemenr of religious affairs is involved.] Deleted by Mah. 20 of 1971, s. 33.
48.[Levy of administrative charges.] Deleted by Mah. 20 of 1971, s. 33.
49.[Transfer of property by Charity Commissioner]. Deleted by Mah. 20 of 1971, s. 33.
50.Suit by or against or relating to public trusts or trustees or others. In an case-
(i)where it is alleged that there is a breach of a public trust, negligence, mis-application or misconduct on the part of a trustee or trustees,
(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 6 not a tenant or licensee,
(iii)where the direction of the Court is deemed necessary for the administration of any public trust, or
(iv)for any declaration or injunction in favour of or against a public trust or trustee or 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 sub-clauses
(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 contentions 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 reliefs:-
(a) an order for the recovery of the possession of such property or proceeds thereof;
(b) the removal of any trustee or manager;
(c) the appointment of a new trustee or manager;
(d) vesting any property in a trustee;
(e) a direction for taking accounts and making certain 7 enquiries;
(f) an order directing the trustees or others to pay to the trust the loss caused to the same by their breach of trust, negligence, misapplication, misconduct or wilful default;
(g) a declaration as to what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(h) a direction to apply the trust property or its income cypres on the lines of section 56 if this relief is claimed alongwith any other relief mentioned in this section;
(i) a direction authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged or in any manner alienated on such terms and conditions as the court may deem necessary;
(j) the settlement of a scheme, or variations or alterations in a scheme already settled;
(k) an order for amalgamation of two or more trusts by framing a common scheme for the same;
(l)an order for winding up of any trust and applying the funds for other charitable purposes;
(m) an order for handing over of one trust to the trustees of some other trust and deregistering such trust;8
(n) an order exonerating the trustees from technical breaches, etc.;
(o) an order varying, altering, amending or superseding any instrument of trust;
(p) declaring or denying any right in favour of or against a public trust or trustee or trustees or beneficiary thereof and 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 aforesaid reliefs or is necessary in the interest of the trust:
Provided that no suit claiming any of the reliefs specified in this section shall be instituted in respect of any public trust, except in conformity with the provisions thereof;
Provided further that, the Charity Commissioner may instead of instituting a suit make an application to the Court for a variation or alteration in a scheme already settled:
Provided also that, the provisions of this section and other consequential provisions shall apply to all public trusts, whether registered or not or exempted from the provisions of this Act under sub-section (4) of section 1.] 9
6. From the bare perusal of section 50 and
51 of the aforesaid act it becomes clear that the present suit seeking an injunction restraining the defendants from misappropriating the funds of defendant No.1 cannot be filed without prior permission of the charity commissioner. Admittedly, in the present case no such permission has been obtained and therefore the present suit is hit by section 50 and 51 of the Bombay Public Trust Act and therefore plaint is liable to be rejected U/o 7 Rule 11 CPC and accordingly application U/o 7 rule 11 CPC is allowed and plaint is rejected.
(J.P. NARAIN) CIVIL JUDGE/DELHI.
ANNOUNCED IN OPEN COURT ON 07.04.2007.
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