Bombay High Court
Mr. Vijay Raghurama Shetty vs Baun Foundation Trust And Others on 26 September, 2011
Author: R. M. Borde
Bench: R. M. Borde
MP 1 CRA530_11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 530 OF 2011
Mr. Vijay Raghurama Shetty ... Applicant
Versus
Baun Foundation Trust and others ... Respondents
Mr. Navroz Seervai, Senior Counsel with Mr. Ashutosh Kumbhkoni, Senior
Counsel and Mr. Z. Andhyaruzina, Advocate with Mr. Amit Vyas, Advocate and
Mr. Sanjay Israni, Advocate with Mr. S. Singh and Ms. Nikita Ajwani with Mr.
Melvyn Fernandes, Advocates i/b. M/s. Rajani Associates for the Applicant.
Mr. D. D. Madon, Senior Counsel with Mr. Ravi Gandhi, Advocate i/b. M/s.
Kanga & Co. for Respondents.
CORAM : R. M. BORDE, J.
MONDAY, SEPTEMBER 26, 2011 ORAL JUDGEMENT:
Rule. Rule made returnable forthwith.
2. The revision petitioner - original defendant is taking exception to the order passed by the Judge, City Civil Court, Bombay on 01.07.2011 in Suit No. 1210 of 2011 holding that the Court does have jurisdiction to try and entertain the Suit.
3. The instant revision petition is presented by the original defendant in Suit No. 1210 of 2011. The original plaintiff No. 1 is Baun Foundation Trust ("said Trust" for short) which is a Public Charitable Trust registered under the provisions of the Bombay Public Trust Act, 1950 ("BPT Act" for short). It is not disputed that the original plaintiff No.2 is the founder trustee of the said Trust as also the original plaintiff Nos. 3 to 5 are the trustees of the said Trust. According to the plaintiffs, the defendant was also the trustee of the said Trust ::: Downloaded on - 09/06/2013 17:46:15 ::: MP 2 CRA530_11 until his term came to an end. The said Trust was formed in 1964 with an object to establish and run a hospital. The plaintiff No.2 and his wife late Smt. Shalini Shetty are amongst the founders of the said Trust. In the year 1990, additional trustees were taken in by the said Trust and those trustees are petitioner (defendant) and the plaintiff No.3 / respondent No.3. The defendant is son of plaintiff No.2 and Smt. Shalini Shetty. After inclusion of the additional trustees, a change was reported to the Charity Commissioner on 21.03.1990. According to the plaintiffs, as per the provisions contained in the Constitution of the said Trust, the trustees are to be appointed for the period of three years. It is also contended that there arose some dispute between the defendant and the other trustees and it is alleged that the defendant started interfering in the day-to-day affairs of the said Trust. It is also averred in the plaint that the term of the defendant came to an end on 21.03.2011, and thereupon, the remaining trustees of Trust recorded a decision not to renew the term of the defendant. Since, it is alleged, that the defendant was interfering in the administration of the said Trust, the Suit was presented by plaintiff Nos. 1 to 5 claiming decree of injunction against him. It is also contended in the plaint itself that Suit is entertainable in the absence of prior sanction of Charity Commissioner as provided under Sections 50 and 51 of the BPT Act. The prayers made in the plaint, and more specifically, prayer clauses (a) and (b) are quoted below:
a. That the Defendant, his servants, agents, or any person or persons claiming by, under or through him be restrained by a permanent order and injunction of this Hon'ble Court from threatening the Plaintiffs in any manner and be further restrained from entering upon and remaining in the premises situated at the Plaintiff No. 1's premises at Cumballa Hill Hospital 93-95, August Kranti Marg, Mumbai 400 036, the Plaintiff No.2 at his office at Cumballa Hill Hospital 93-95, August Kranti Marg, Mumbai 400 036 and his residence at 1-B, Manek, 11, L.D. Ruparel Marg, Mumbai- 400 006, the Plaintiff No.3 at her residence at Asha Mahal, 1st Floor, Flat No.6, Nowrojee Gamadia Road, Mumbai-400 026, her office at 107-109, Konark Shram, 156, M. M. Malviya Road, Tardeo, Mumbai 400 034 and also at her office at Messrs. Shalini Enterprises, Block No.5, Ground Floor, Mishree Mansion, August Kranti Marg, Mumbai 400 036, the Plaintiff No.4 at his residence at 33, Tenerife, Little Gibbs Road, Malabar Hill, Mumbai 400 014 and the Plaintiff No.5 at his residence at 403/3 Radhakrishna Nagar, Malpa Hill No.3, Andheri (East), Mumbai 400 093;::: Downloaded on - 09/06/2013 17:46:15 :::
MP 3 CRA530_11
b. That the Defendant be directed by a permanent mandatory
order of injunction from interfering with and / or causing disturbance in day to day affairs of the Plaintiffs business and / or causing any harassment to the Plaintiffs and / or their staff members in the premises situated at the Plaintiff No. 1's premises at Cumballa Hill Hospital 93-95, August Kranti Marg, Mumbai 400 036, the Plaintiff No.2 at his office at Cumballa Hill Hospital 93-95, August Kranti Marg, Mumbai 400 036 and his residence at 1-B, Manek, 11, L.D. Ruparel Marg, Mumbai- 400 006, the Plaintiff No.3 at her residence at Asha Mahal, 1st Floor, Flat No.6, Nowrojee Gamadia Road, Mumbai-400 026, her office at 107-109, Konark Shram, 156, M. M. Malviya Road, Tardeo, Mumbai 400 034 and also at her office at Messrs. Shalini Enterprises, Block No.5, Ground Floor, Mishree Mansion, August Kranti Marg, Mumbai 400 036, the Plaintiff No.4 at his residence at 33, Tenerife, Little Gibbs Road, Malabar Hill, Mumbai 400 014 and the Plaintiff No.5 at his residence at 403/3 Radhakrishna Nagar, Malpa Hill No.3, Andheri (East), Mumbai 400 093;
4. Defendant objected to the jurisdiction of the Civil Court by presenting an application. According to the defendant, the issues involved in the Suit are required to be dealt with by the authorities constituted under the BPT Act. It is also the contention of the defendant that the Suit claiming an order of injunction against him is not maintainable without securing prior sanction of the Charity Commissioner as required under Section 51 of the BPT Act. The objection tendered by the defendant was considered by the learned Judge of the City Civil Court. In the absence of there being any evidence led by the parties in support of the respective contentions raised by them, the Trial Court recorded the finding that the Court has jurisdiction to entertain the Suit while considering Exhibit-2, which order is impugned in this Civil Revision Application.
5. Section 80 of the BPT Act relates to bar of jurisdiction on the Civil Court which provides thus:
"Section 80 : Bar of jurisdiction Save as expressly provided in this Act, no Civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealt with by any officer or authority under this Act, and in respect of which the decision or order of such officer or authority has been made final and conclusive."::: Downloaded on - 09/06/2013 17:46:15 :::
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6. Section 50 of the Act relates to presentation of Suits by or against or relating to public trusts or trustees or others. If the Suit is 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 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 reliefs:
(a) to (o) ...
(p) declaration 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) ...
Clause (p) is relevant for consideration which relates to 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.
7. Section 50 further provides 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. Thus, the suit as contemplated by Section 50(iv)(p) can be instituted after securing consent in writing of the Charity Commissioner by one or more of such persons. It is contended that for institution of the suit prior permission of the Charity Commissioner is essential and unless such permission is secured, the suit is not entertainable.
8. The Counsel appearing for the original defendant - revision petitioner contends that the name of the defendant appears in the Schedule 1 which is maintained as provided under Section 17 of the BPT Act read with ::: Downloaded on - 09/06/2013 17:46:15 ::: MP 5 CRA530_11 Rule 5 of the Rules framed thereunder. It is thus contended that until the name of the defendant appears in the said Schedule, he shall be deemed to be a trustee of the Trust. It is also contended that considering the averments noted in the plaint, it is evident that the defendant was adopted as a trustee of the said Trust since 21.03.1990 and he continued until the year 2009. In paragraph 3 of the plaint, it is stated that the defendant was inducted as a trustee in the year 1990, and it is further noted in paragraph 5 of the plaint that in the year 2009, dispute had arisen between plaintiff No. 2 and the defendant whereby the defendant had started interfering in the day to day affairs of the said Trust thereby acting contrary to the objects of the said Trust. Thus, it is evident that the defendant has continued to be a trustee since the year 1990 till the year 2009. In para 7 of the plaint it is recited that since the harassment, obstructions and interference had continued and also since the same had reached beyond limits in March, 2011 and as the term of the defendant had ended, the then trustees had unanimously decided not to renew the term of the defendant. Accordingly, a resolution came to be passed in the meeting of the Trustees held on 24.03.2011, wherein the term of the defendant as a trustee came to an end since the same was not renewed by the then trustees. It is also informed that the change report has been tendered with the Charity Commissioner in respect of the occurrence of the change i.e. cessation of the trusteeship of defendant.
9. Section 22 of the BPT Act deals with the aspect of the occurrence of change and it is the Charity Authorities established under the BPT Act are empowered to hold an inquiry in respect of the occurrence of the change and render a decision in that regard. It is stated that the change in respect of the Constitution of the trustees of the said Trust is reported to the Charity Commissioner and the defendant has also raised an objection with the Charity Commissioner objecting to the change. It is the contention of the defendant that it is only the Charity Authorities who are authorised to decide the aspect as regards whether a person continues to be a trustee of the Trust and whether change report is worthy of acceptance or not. It is the exclusive jurisdiction of ::: Downloaded on - 09/06/2013 17:46:15 ::: MP 6 CRA530_11 the Charity Commissioner to decide the related issue. The Counsel appearing for the revision petitioner invited my attention to the pleading in the plaint and contended that considering the pleadings and the provisions of Section 17 of the BPT Act read with Rule 5 of the Rules as also the entries in the Schedule 1, it is to be presumed that the defendant is a trustee of the trust until his name is removed from Schedule 1 and the issue as to whether he continues to be a trustee or not is required to be dealt with by the Charity Authorities having jurisdiction to deal with the issues. It is contended that in order to determine the controversy involved in the suit, and with a view to consider the objection raised by the defendant as regards the jurisdiction of the Civil Court to entertain the dispute, a finding needs to be recorded as to whether the defendant is a trustee of the trust or not. It is contended that whether the defendant is a trustee of the trust, is a jurisdictional fact and this jurisdictional fact has to be considered by the Court only after receiving the evidence. In the instant matter, there was no evidence placed on record on jurisdictional aspect of the matter and the decision rendered by the Trial Court in the absence of determination on the jurisdictional fact is unsustainable. Reliance is placed on the judgment in the matter of Carona Limited Vs. Parvathy Swaminathan and Sons reported in (2007) 8 SCC 559. In paragraph Nos. 26 to 28 of the judgment, the Apex Court has observed thus:
"Jurisdictional fact
26. The learned counsel for the appellant company submitted that the fact as to "paid-up share capital" of rupees one crore or more of a company is a "jurisdictional fact" and in absence of such fact, the court has no jurisdiction to proceed on the basis of the Rent Act is not applicable. The learned counsel is right. The fact as to "paid-up share capital" of a company can be said to be a "preliminary" or "jurisdictional fact" and said fact would confer jurisdiction on the court to consider the question whether the provisions of the Rent Act were applicable. The question, however, is whether in the present case, the learned counsel for the appellant tenant is right in submitting that the "jurisdictional fact" did not exist and the Rent Act was, therefore, applicable.
27. Stated simply, the fact or facts upon which the jurisdiction of a court, a tribunal or an authority depends can be said to be a "jurisdictional fact". If the jurisdictional fact exists, a court, ::: Downloaded on - 09/06/2013 17:46:15 ::: MP 7 CRA530_11 tribunal or authority has jurisdiction to decide other issues. If such fact does not exist, a court, tribunal or authority cannot act. It is also well settled that a court or a tribunal cannot wrongly assume existence of jurisdictional fact and proceed to decide a matter. The underlying principle is that by erroneously assuming existence of a jurisdictional fact, a subordinate court or an inferior tribunal cannot confer upon itself jurisdiction which it otherwise does not posses.
28. In Halsbary's Law of England (4th Edn.), Vol. 1, Para 55, p. 61; Reissue, Vol. 1(1), Para 68, pp. 114-15, it has been stated:
"Whether the jurisdiction of a tribunal is dependent on the existence of a particular state of affairs, that state of affairs may be described as preliminary to, or collateral to the merits of, the issue. If, at the inception of an inquiry by an inferior tribunal, a challenge is made to its jurisdiction, the tribunal has to make up its mind whether to act or not and can give a ruling on the preliminary or collateral issue; but that ruling is not conclusive."
The existence of a jurisdictional fact is thus a sine qua non or condition precedent to the assumption of jurisdiction by a court or tribunal."
10. In the instant matter, whether the defendant continues to be a trustee of the said Trust is a jurisdictional fact and determination of the said question is a sine qua non or condition precedent to arrive at findings as regards the jurisdiction of the Civil Court to entertain the dispute. Reliance is also placed on the judgment of the Division Bench in the matter of Satpuda Tapi Parisar Sahakari Sakhar Karkhana Limited Vs. Jagruti Industries and another reported in 2008 (5) Bom.C.R. page 284. In sub para 12 of paragraph No.9 , it is quoted thus:
12. We would, at this stage, refer to the precise principle laid down by this Court is the case of (Fazlehussein Vs. Yusufally), AIR 1995 Bom.55, wherein the Court has, after observing that the averments made in the plaint would be sufficient to decide the question of jurisdiction, held as under:-
"In considering the preliminary issue, the Court must look into the averments in the plaint and consider any objections which the defendant may choose to raise against the maintainability of the action on those averments. The question of jurisdiction which is raised by way of a demurrer has always to be decided on the allegations made in the plaint and not on the contentions that the defendant may raise. It is true that ::: Downloaded on - 09/06/2013 17:46:15 ::: MP 8 CRA530_11 if the jurisdiction of the Court depends upon the proof of a fact and the question as to the existence or otherwise of that fact is canvassed, the parties may lead evidence in support of their respective cases before the preliminary issue as to jurisdiction of the Court is decided."
The jurisdiction of the Court depends upon the proof of a fact or a question as to whether defendant is a trustee of the trust and unless the parties lead evidence in support of their respective contentions, any decision on preliminary issue cannot be arrived at. According to the revision petitioner, the decision arrived at by the Civil Court, without deciding the jurisdictional fact as to whether the defendant continues as a trustee of trust, is erroneous.
11. It is contended by the respondents-original plaintiffs that as per the provisions of the Constitution of the said Trust, there are two categories of members. The plaintiff No.2 is the founder trustee or the trustee of the 'other part' and continues to remain as a life time trustee. Whereas, the other trustees including the defendant can be categorized who can continue for a period of three years. Clause 9(b) of the Constitution of the Trust provides that save as expressly provided in sub-clause (a) above, all the trustees or trustee for the time being of the said Trust shall on the expiration of three years from the date of their or his appointment as trustees or trustee as hereinafter provided retire from the trust of these presents. Thus, it is contended that the term of the trustee i.e. the defendant has come to an end in March 2009 after expiration of the period of three years of his appointment.
12. It is a matter of record that while the issue of jurisdiction of the Court was taken up for consideration, the resolutions pertaining to continuation of defendant as a trustee of the trust at the interval of every three years were not placed on record. However, the same appears to have been placed on record, at a subsequent stage, after the Court rendered decision on the issue of jurisdiction. As stated above, there is an averment in paras 3 to 5 of the plaint that the ::: Downloaded on - 09/06/2013 17:46:15 ::: MP 9 CRA530_11 defendant was inducted as trustee of the trust in the year 1990 and the defendant continued until the year 2009. Thus, in order to determine the jurisdiction of the Court to deal with the issue as to whether the defendant discontinued as a trustee of the Trust on expiry of the period of three years or whether he continues by virtue of his inclusion of name in Schedule 1 maintained by the Charity Authorities and by virtue of provisions of Section 17 of the BPT Act read with Rule 5 of the Rules, is a matter required to be dealt with and decided by the Civil Court on recording evidence of the parties on jurisdictional fact. The issue as to whether the defendant continues to be a trustee of the trust is a matter required to be dealt with by the Court before arriving at the decision as to whether the Civil Court has jurisdiction to entertain and decide the dispute. It is the argument advanced by the original defendant (revision petitioner herein) that the reported change in respect of deletion of name of defendant from the list of trustees of the Trust is a matter pending adjudication before the Charity Authorities and the defendant has raised an objection before the appropriate Charity Authority for effecting change and so such question is required to be dealt with by Charity Authorities. The issue as to whether the change as occurred in the constitution of the Trust is required to be dealt with by the Charity Authorities as contemplated by Section 22 of the BPT Act. The Civil Court needs to apply mind to the facts of the case as well as relevant provisions of the BPT Act and then arrive at conclusion as to whether Civil Court can have jurisdiction to deal with issues involved in the Suit.
13. The learned Counsel appearing for the respondents vehemently contended that it is not the case of the continuation or discontinuation of the defendant as a trustee of the Trust. However, the defendant ceases to be a trustee by virtue of operation of the provisions of the said Constitution on the expiry of period of three years from the date of his appointment. Once he ceases to be a trustee of the Trust, his status is rendered as 'trespasser', and as such, the Suit is entertainable. As stated above, the jurisdictional fact as to whether the defendant continues to be a trustee of the Trust or not is required to ::: Downloaded on - 09/06/2013 17:46:15 ::: MP 10 CRA530_11 be dealt with by the Civil Court after receiving evidence that will be led by the parties in that behalf. As stated above, the resolutions indicating that during the period of last twenty years, the defendant was continued as a trustee of the Trust by the adopting resolutions from time to time, were not before the Court when the decision was rendered on the issue. In these circumstances, it would not be proper for me to comment upon the authenticity or otherwise of the resolutions placed on record before the Trial Court after the decision was rendered. It would be open for the learned Judge of the City Civil Court to deal with the documentary and other evidence that would be placed before him for determination of the jurisdictional fact as to whether the defendant continues to be a trustee of the Trust.
14. In view of the discussion as above, I am of the view that the matter is required to be remitted back to the Civil Court for rendering a decision in the matter afresh and for recording findings on the jurisdictional fact as regards the trusteeship of the defendant.
15. It is the contention of the respondent that merely because the change report is presented, it does not mean that the change has not occurred. The change in the Constitution of the Trust takes place on the date of adoption of resolution. In this regard, a reliance is placed on the judgment in the matter of Vijay K. Mehta and another Vs. Charu K. Mehta and others reported in 2008 (5) ALL MR page 366 so also in the matter of Madanrao s/o. Nanasaheb Chavan Vs. State of Maharashtra and others reported in 2002(4)Mh.L.J. Page
872. There can be no dual opinion about the proposition that the change takes place once the resolution is adopted. However, in the instant matter, for the reasons recorded above, I am of the opinion that the jurisdictional fact as to whether the defendant ceases to be a trustee of the Trust is to be determined by the Civil Court after taking into consideration various aspects and the questions of fact on the basis of interpretation of the provisions of the BPT Act need to be determined by Civil Court. The matter, therefore, needs to be remitted back to ::: Downloaded on - 09/06/2013 17:46:15 ::: MP 11 CRA530_11 the Civil Court for determination of the questions raised in matter and for rendering decision afresh on the point of jurisdiction of Civil Court to entertain Suit.
16. For the reasons recorded above, the Civil Revision Application needs to be allowed and same is accordingly allowed. The order passed by the Judge, City Civil Court, Bombay on 01.07.2011 in Suit No. 1210 of 2011 below Exhibit-2 is quashed and set aside and the matter is remitted back to the Trial Court for rendering decision afresh in accordance with law. The learned Trial Court shall decide the issue afresh as expeditiously as possible, preferably within a period of eight weeks from today. Rule is accordingly made absolute. No costs.
17. The learned Judge of the Trial Court, while rendering decision in the matter, shall not be influenced by view adopted by him earlier while deciding Exhibit-2 and the observations made by this Court touching the merits of the controversy.
18. All pending Civil Applications, if any, stand disposed of accordingly.
(R.M. BORDE, J) ::: Downloaded on - 09/06/2013 17:46:15 :::