Gujarat High Court
Sanjay S Patel vs Baroda Cricket Association & on 28 July, 2015
Author: Akil Kureshi
Bench: Akil Kureshi
C/AO/546/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL FROM ORDER NO. 546 of 2014
With
CIVIL APPLICATION NO. 14359 of 2014
In
APPEAL FROM ORDER NO. 546 of 2014
With
APPEAL FROM ORDER NO. 547 of 2014
With
CIVIL APPLICATION NO. 14362 of 2014
In
APPEAL FROM ORDER NO. 547 of 2014
==========================================================
SANJAY S PATEL....Appellant(s)
Versus
BARODA CRICKET ASSOCIATION & 1....Respondent(s)
==========================================================
Appearance:
MR PARTHIV B SHAH, ADVOCATE for the Appellant(s) No. 1
MR PR THAKKAR, ADVOCATE for the Respondent(s) No. 1
MS ARCHANA R ACHARYA, ADVOCATE for the Respondent(s) No. 2
==========================================================
CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
Date : 28/07/2015
COMMON ORAL ORDER
1. These proceedings arise in similar background. We may therefore refer to the records in Appeal from Order No. 546 of 2014 for the purpose of this judgment.
2. The Appellant - Original Plaintiff has challenged the order dated 24.9.2014 passed by the learned Additional Senior Civil Judge, Page 1 of 18 C/AO/546/2014 ORDER Vadodara in Regular Civil Suit No. 356 of 2014 as confirmed by the District Court in Regular Civil Appeal No. 91 of 2014 by a judgment dated 12.12.2014.
Brief facts are as under.
3. The Appellant is the Original Plaintiff. Defendant No.1 is the Baroda Cricket Association (hereinafter to be referred as "BCA"). Defendant No.2 is the President of Defendant No.1 - BCA. As averred by the Plaintiff in the suit, he was closely associated with the running of the said BCA since the year 2002. From time to time he was co-opted as a Secretary or its Vice President. The election for different elected posts of the BCA was completed on 15.12.2013 with declaration of the results, in which the Plaintiff was declared elected as the Honorary Secretary of the BCA and Defendant No.2 as its President. The Governing Body of the BCA was also duly constituted through elected members. On 21.3.2014 the Managing Committee of the BCA convened its meeting. A resolution was adopted to remove the Plaintiff from the position of the elected Honorary Secretary. As per the Plaintiff such action was wholly unauthorized and unlawful since the Governing body could remove a co-opted member but not an elected member. The Plaintiff therefore filed Regular Civil Suit No. 356 of 2014 before the Civil Court, Vadodara and prayed for a Page 2 of 18 C/AO/546/2014 ORDER declaration that the Defendants had no authority to prevent the Plaintiff from discharging his duties as a Secretary of the BCA nor had they any authority to remove him from such position. The Plaintiff further prayed for a declaration that the decision of the Managing Committee dated 27.4.2014 to remove him from the position of Secretary was illegal, unlawful and void. He prayed for a permanent injunction against the Defendants preventing him from discharging his duties in such capacity.
4. The Defendants appeared and opposed the suit. They filed Application Exhibit 10 seeking rejection of plaint in exercise of Order 7 Rule 11 of the Code of Civil Procedure ("CPC"). It was contended that the Defendant No.1-BCA is a Society registered under the Societies Registration Act and is also a Trust registered under the Bombay Public Trusts Act (hereinafter to be referred as "the Act"). It was contended that the present suit is one pertaining to a Public Trust and the reliefs sought pertain to administration of the Public Trust. Unless and until requirements of Section 50 of the Act are fulfilled, the suit would not be maintainable. It was further contended that in any case even if the procedure under Section 50 and 51 of the Act is followed, the court competent to entertain the suit would be the District Court and not the Civil Court. Reliance was also placed on Section 80 of the Act to Page 3 of 18 C/AO/546/2014 ORDER contend that there is total bar of jurisdiction of the Civil Court. The Defendants therefore pleaded that the plaint be rejected in exercise of powers under Order 7 Rule 11 of CPC.
5. The trial court passed its impugned order dated 24.9.2014 on such application of the Defendants and rejected the plaint holding that the suit was filed before the Civil Court instead of District Court and was therefore barred under Section 80 of the Act. To this aspect of the matter, I may revert back at a later stage. To complete a narration, the Plaintiff there upon filed appeal before the District Court. The District Court substantially agreed with the view of the trial court but was of the opinion that instead of rejection of the plaint the same ought to have been returned to the Plaintiff for presentation before the competent court in terms of Order 7 Rule 10 of CPC. In the result, the appeal of the Plaintiff was partially allowed, the order passed by the trial court was set aside and the trial court was directed to return the plaint to the Plaintiff for presentation to the proper court having jurisdiction after following due process. Appellate Court seems to have accepted the contention of the Plaintiff that even if the procedure laid down in Section 50 and 51 of the Act is not followed, plaint cannot be rejected under Order 7 Rule 11 of CPC.
6. It is this judgment which the Plaintiff has challenged in the present Page 4 of 18 C/AO/546/2014 ORDER Appeal from Order. Appearing for the Appellant - Original Plaintiff, learned Senior Advocate Shri Mihir Thakore submitted that neither Section 50 nor Section 51 of the Act bar the suit in question. He contended that the Plaintiff's suit was for enforcement of his personal rights, it would not fall under the provisions of Section 50 of the Act. Any other view would deprive the Plaintiff of any legal remedy. He further contended that Section 80 of the Act pertaining to bar of jurisdiction to the Civil Court must be construed strictly and would apply only to classes of cases specified under the said Section. Counsel relied on the following decisions:
(i) (2003) 6 SCC 151 - Sahebgouda (Dead) by Lrs. and ors.
v. Ogeppa and ors. in which of course the facts were somewhat different. The suit was filed by the Plaintiffs claiming to have been continuously exercising their right of puja without any objection. The followers of the temple had taken steps to get the temple and the land attached to it registered as public trust with the Assistant Charity Commissioner. Inquiry in respect of such an application was pending. At that time the Plaintiffs filed the suit with a prayer for a declaration that the Plaintiffs are the ancestral pujaris and thus have the right of performing puja at all times in the temple. They also prayed for permanent prohibitory injunction against the Page 5 of 18 C/AO/546/2014 ORDER Defendants restraining them from exercising such rights. The suit was resisted by the Defendants inter alia on the ground that the Civil Court had no jurisdiction to entertain the same in view of the bar contained in Section 80 of the Act. The Supreme Court observing that the Bombay Public Trust Act has been enacted to regulate and to make better provisions for the administration of the public religious charitable trust went on to examine the bar of jurisdiction contained in Section 80 of the Act. It was observed:
"8. The question whether the suit filed by the appellants is barred by the provisions of Section 80 of the Act has to be examined in the light of the provisions referred to above. Section 9 of Code of Civil Procedure clearly lays down that the Civil Court shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. It is well settled that the Civil Court has jurisdiction to try all suits of civil nature and the exclusion of jurisdiction of the Civil Court is not to be rightly inferred. Such exclusion must be either explicitly expressed or clearly implied. In Musamia Imam Haider Bax Razvi v. Rabri Govindbhai Ratrabhai and others, AIR 1969 SC 439 (Para 7) this Court observed that it is necessary to bear in mind the important principle of construction which is that if a statute purports to exclude the ordinary jurisdiction of a civil Court it must do so either by express terms or by the use of such terms as would necessarily lead to the inference of such exclusion. This principle was reiterated in Dewaji v. Ganpatlal, AIR 1969 SC 560.
11.The allegations made in the plaint show that the only right claimed by the appellants is that of being ancestral Pujaris of the temple. The appellants do not claim themselves to be the trustees of any trust as defined under Section 2(18) of the Act. No declaration regarding the existence or otherwise of a trust or that any particular property is the property of such trust which comes within the purview of the Deputy or Assistant Charity Commissioner under Section 79 of the Act has been claimed. The only relief claimed is a declaration regarding the right of the Page 6 of 18 C/AO/546/2014 ORDER appellants to function as hereditary Pujaris or their Pujariki rights of performing Puja in the temple and a consequential decree for injunction for restraining the respondents from interfering with the aforesaid rights of the appellants. The reliefs so claimed do not at all come within the ambit of Section 19 or Section 79 of the Act on which the Deputy or Assistant Charity Commissioner has the jurisdiction to hold an inquiry and give a decision. Therefore, the bar of Section 80 of the Act which by the express language used is confined to "any question which is by or under this Act 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" would not apply."
(ii) (2005) 6 SCC 641 - Vinayaka Dev, Idagunji and ors. v. Shivaram and ors. in which the suit was filed by the Plaintiffs as hereditary pujaris of the temple claiming the relief of injunction and restraining the Defendants from interfering with their right as pujaris. It was held that the suit was thus for enforcement of personal or private right and not of the public right in the public trust. It was therefore held that Section 50 of the Act was not attracted and the suit was therefore not barred. It was observed as under:
"13. What is to be seen is the relief the plaintiffs are seeking from the Court. First of all, they are seeking a declaration about their hereditary right as archaks of the temple. This right is claimed in their personal capacity as a family of archaks who have been performing the functions of archaks since the day the temple was established and the deity was consecrated. It is different matter whether ultimately the plaintiffs' contention is accepted by the Court or not. Surely, the plaintiffs are entitled to have their claim examined by the Court. If they fail to establish their claim, they will be out of the Court. However, if they succeed in establishing the claim they will be entitled to the declaration sought. They Page 7 of 18 C/AO/546/2014 ORDER cannot be non suited at the threshold unless the suit is expressly barred by any statute. We have seen the provisions of Section 50 of the Bombay Public Trusts Act relied upon by the appellants- defendants. The said section does not cover a suit of the present type. Analogy has been drawn of Section 92 of the Code of Civil Procedure while considering Section 50 of Bombay Public Trusts Act. Both provisions are in the nature of representative suits which pertain to public trusts and protection of public interest in the trusts. In the present case, there is no public interest involved. The only interest is that of the plaintiffs and their families. The right of archakship is claimed on the basis of inheritance. It is a hereditary personal right which they want to establish. The right is purely of a private nature. We are of the view that Section 50 of the Bombay Public Trusts Act is not attracted at all in the facts of the present case.
14. We have seen the object of the Bombay Public Trusts Act. Appropriately the Act seeks to regulate and make better provision for administration of public religious and charitable trusts. Such trusts cater to things of public interest, i.e .things which concern large sections of public. Unless such trusts are properly administered public interest will suffer. Therefore, matters affecting administration of such trusts are covered under Section 50 of the Bombay Public Trusts Act.This situation is somewhat similar to suits under Section 92 of the Code of Civil Procedure. These suits are suits in representative capacity and pertain to matters of public interest. In contrast the suit which has given rise to the present appeal is a suit to establish an individual right. The plaintiffs claim that they are hereditary archaks of the temple since time immemorial and are entitled to exercise this right which cannot be taken away from them.No public interest is involved. Public is not concerned whether A acts as an archak or B acts. Such a suit, therefore, cannot be covered by Section 50 of the Act. Law is settled on this aspect as per various judgments of this Court."
(iii) My attention was also drawn to the decision of the Supreme Court in case of Church of North India v. Lavajibhai Ratanjibhai and ors. reported in AIR 2005 SC 2544 in which the question before the Supreme Court was of the ownership of the Page 8 of 18 C/AO/546/2014 ORDER properties of different Churches registered as religious trusts upon unification of such trusts into one Church. The scheme of unification provided that the unified Church would become the successor of properties of the original Churches. The original Church disputed its dissolution. Civil Suit was therefore filed by the members of the unified Church claiming a declaration that the original Church has ceased to exist and the property would vest in the unified Church. It was in this background the Supreme Court held that the suit involved questions within the exclusive domain of the Charity Commissioner and that therefore jurisdiction of the Civil Court stood ousted. Counsel submitted that this decision rested on different facts and the ratio laid down therefore would not apply in the present case.
7. On the other hand learned Counsel Shri P.R.Thakkar for Defendant No.1 - Opponent No.1 herein opposed the Appeal from Order contending that the District Court has committed no error. The 'Court' is defined under the Act as 'District Court', the suit at all therefore would lie before the District Court and not the Civil Court. He drew my attention to Sections 50, 51 and 80 of the Act to contend that the judgment of the lower appellate court suffers from no irregularity. My attention was also drawn to the definition clause particularly defining the term 'Manager'. Counsel relied on Page 9 of 18 C/AO/546/2014 ORDER certain decisions to which I would refer to at a later stage.
8. At the outset I am slightly intrigued by the conclusion of the trial court and which was substantially upheld by the lower appellate court that in view of Section 80 of the Act the suit would lie before the District Court and not Civil Court. Section 80 of the Act pertains to bar of jurisdiction. It provides that;
"Save and 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, or in respect of which the decision or order of such officer or authority has been made final and exclusive."
Thus in plain terms Section 80 contains total bar of the jurisdiction of the Civil Court pertaining to the subject matters which fall within the parameters of the said Section. Through a circuitous route it cannot be argued that a suit is barred but only before the civil court and not before the District Court. Such interpretation is wholly untenable. The entire controversy therefore revolves around the applicability of Section 50 of the Act. If Section 50 of the Act does apply, the suit would be maintainable, of course subject to fulfillment of certain requirements. But in view of the definition of term 'Court' contained in Section 2(4) of the Act it would lie before the District Court and not the Civil Court. I would therefore focus my attention on such issue. Page 10 of 18 C/AO/546/2014 ORDER
9. The Bombay Public Trusts Act was enacted for better provision for the administration of the public religious charitable trust since it was expedient to regulate and to make better provisions for such purpose. Section 9 contains a definition of 'Charitable Purposes' for the purposes of the said Act and includes relief of poverty or distress, education, medical relief and advancement of any other object of, general public utility, but does not include a purpose which relates exclusively to sports or exclusively to religious teaching or worship. Chapter IV of the Act pertains to registration of public trusts. Chapter VI pertains to control over the public trust and contains various Sections granting various powers to the Charity Commissioner and his officers. In order to regulate the activities of the public trusts, Section 50 which is contained in Chapter VII pertaining to other functions and powers of the Charity Commissioner provides for suits relating to public trusts and reads as under:
"50. In any case;
(i) where it is alleged that there is a breach of a public trust,
(ii) where a direction or decree is required to recover the possession of a property belonging to a public trust or the proceeds thereof or for an account of such property or proceeds from any other person including a person holding adversely to the public trust, or
(iii) where the direction of the Court is deemed necessary for the Page 11 of 18 C/AO/546/2014 ORDER administration of any public trust, the Charity Commissioner after making such enquiry as he thinks necessary, or two or more persons having an interest in the trust and 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;
[(cc) vesting any property in a trustee.]
(d) a direction for taking accounts and making certain inquiries;
(e) a declaration as to what proportion of the trust or property or of the interest therein shall be allocated to any particular object of the trust;
(f) a direction authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged,
(g) the settlement of a scheme or variations or alterations in a scheme already settled, or
(h) granting such further or other relief as the nature of the case may require:
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."Page 12 of 18 C/AO/546/2014 ORDER
10.Section 51 of the Act pertains to consent of the Charity Commissioner for institution of suit and provides for a mechanism by which application for the consent of the Charity Commissioner to file a suit specified in Section 50 of the Act can be considered and decided.
11.In terms of Section 50 therefore, in any case, where it is alleged that it is a breach of public trust or where direction is required to recover possession of a property belonging to public trust or the proceeds thereof or for an account of such property or proceeds from any person including a person holding adversely to the public trust or where the direction of the court is deemed necessary for the administration of any public trust, a suit could be instituted only when the Charity Commissioner after making such inquiry if he thinks necessary or by two or more persons having an interest in the trust after obtaining consent in writing of the Charity Commissioner as provided in Section 51. The nature of reliefs which can be granted in such a suit have been specified in Clauses
(a) to (h) of Section 50 of the Act.
12.For the obvious reasons, the present case does not fall in Clause (i) or (ii) of Section 50. The only question whether it would fall under Clause (iii) pertaining to the direction of the court deemed necessary for the administration of a public trust. In this context Page 13 of 18 C/AO/546/2014 ORDER we may recall the nature and the reliefs claimed by the Plaintiff. The Plaintiff claims to be an elected Honorary Secretary of the Defendant No.1 - BCA. According to him though co-opted member can be removed by the Managing Committee but not an elected member, the Managing Committee therefore did not have any authority to remove the Plaintiff from the position of the Honorary Secretary, despite which on 27.4.2014 a Resolution was adopted removing him from such position. According to the Plaintiff therefore such Resolution was wholly unauthorized and illegal. He therefore prayed for various declarations and other reliefs including for a declaration that he continued to be the Honorary Secretary and that the Defendants had no authority to prevent him from discharging his functions as such.
13. The entire suit thus was for the purpose of enforcing the Plaintiff's personal right. It had no element of any interest of the public trust. In plain terms the Plaintiff asserted his civil right to continue to hold an elected post till the term was over or till he was legally and validly removed from such position. His suit and the ultimate reliefs had no connection with the administration of the Public Trust. It may be that if any two or more beneficiaries under the Trust had also found it necessary to challenge such a decision of the Managing Committee having any element of administration Page 14 of 18 C/AO/546/2014 ORDER of the Public Trust, they after making out such a case should have applied to Charity Commissioner for his consent in writing in terms of Section 50 of the Act. This is however not the same thing as suggest that even when the Plaintiff questions such a decision before the Civil Court, it necessarily had an element of administration of the Public Trust. This would be for two reasons; firstly the challenge by any of the beneficiaries if they find that the removal of the Secretary had any effect on the administration of Trust and the grievance of the Secretary to his removal and his assertion of his own personal and civil right to continue to hold the said position till the term was over would not be mutually exclusive. Secondly if the Plaintiff's rights were to be examined only within the parameters of Section 50 of the Act, such right can be asserted only by the beneficiaries who must be minimum two in numbers. In other words therefore the Plaintiff would have no individual or independent right to question a decision palpably adverse to him and this would leave the Plaintiff without any remedy whatsoever, an interpretation court would as far as possible avoid.
14.The proposition that the Civil Court's jurisdiction under Section 9 of the CPC is the widest possible jurisdiction and exclusion of such jurisdiction must be construed strictly, needs no reference to any Page 15 of 18 C/AO/546/2014 ORDER authority. In the present case it is not even the case of the Defendants that the jurisdiction of the Civil Court is totally ousted. In this context I had referred to Section 80 of the Act which within certain area totally bars the jurisdiction of the Civil Court. The present is the case where the Defendants argue that the requirements of Section 50 of the Act are not fulfilled and that even if fulfilled the suit would lie before the District Court. When I hold that Section 50 of the Act does not apply at all to the present suit, any such objection of the Defendants must fail.
15.I may now deal with the decisions cited by Counsel for the Defendants.
(i) In case of Balvantrai @ Bhikhubhai Somabhai and anr. v. Ratilal D. Wadiwala and ors. reported in 2013 (1) GLH 287 the learned Single Judge was dealing with a case where the Plaintiff had filed a suit for declaration that certain property was the property of the Trust and the Defendants not being Trustees were not entitled to deal with the same. It was in this background held that such a suit before the Civil Court would be barred under Section 80 of the Act.
(ii) Reliance was placed on the judgment of the Supreme Court in case of Church of North India v. Lavajibhai Ratanjibhai and ors., which I have already referred to while recording contentions Page 16 of 18 C/AO/546/2014 ORDER of the Counsel for the Appellant and drew a distinction in facts.
(iii) The decision of the learned Single Judge in case of Thakkar Raghuram Ranchhodbhai v. Gohil Shivaji Gamarsinh reported in 2012 (0) GlHEL-HC 229499 involves the facts where the dispute before the Civil Court was regarding certain properties of the registered Public Trust. It was in this background held that the suit could not have been instituted without the consent of the Charity Commissioner and without joining him as a Defendant.
(iv) In case of Ambalal Okarlal Patel & Ors. v. Filoman Pathubhai Patel & Ors. reported in 2003 (3) GLH 306 where the learned Single Judge held that the decision whether Trust did not exist in view of dissolution of the Society will have to be arrived at by the Charity Commissioner and the Civil Court has no jurisdiction to decide the same.
(v) In case of Rajesh D. Darbar v. Narasingrao Krishnaji Kulkarni reported in (2003) 7 SCC 219 the Supreme Court was examining the facts where the question of membership and eligibility of 38 persons to participate in the election of the Managing Committee came up for consideration. It was in this background provided that the election to be held by the Committee under the direction and supervision of the appellate authority Page 17 of 18 C/AO/546/2014 ORDER provided under the Endowments Act. This decision does not lay down any ratio and at any rate not one which can be applied in the present case.
16.In the result, judgments of the courts below are set aside. Appeal from Orders are allowed. Civil Applications are disposed of as infructuous.
17.Now that the suit is restored it would be open for the Defendants to file written statement within reasonable time.
(AKIL KURESHI, J.) JNW Page 18 of 18