Gujarat High Court
Shri R Tanikaselvam vs Shri K Shanmugam on 20 August, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/FA/3268/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3268 of 2018
With
CIVIL APPLICATION NO. 1 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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SHRI R TANIKASELVAM
Versus
SHRI K SHANMUGAM
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Appearance:
MANASVI THAPAR(8198) for the PETITIONER(s) No. 1,2
MR VISHAL T. PATEL(6518) for the RESPONDENT(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 20/08/2018
ORAL JUDGMENT
1. This First Appeal under Section 72(4) of the Bombay Public Trusts Act, 1950 (for short, 'the Act, 1950') is at the instance of a public charitable trust and is directed against the judgment and order dated 19th June 2017 passed by the City Civil Judge, City Civil Court No.20, Ahmedabad, in Civil Misc. Application No.575 Page 1 of 44 C/FA/3268/2018 JUDGMENT of 2012 arising from the order dated 30th May 2012 passed by the Charity Commissioner, State of Gujarat, in Scheme Application No.3 of 2009 filed under Section 50A of the Act, 1950.
2. The case of the appellants in their own words as pleaded in the First Appeal is as under :
"3.1 The appellants respectfully submit that the appellant- Krishna Tamil Vidyalay Trust is a public trust registered under the provisions of the Bombay Public Trust Act and is engaged in providing Tamil knowledge and Tamil culture to those living in Ahmedabad city by running a Tamil Public Library. The appellant- Trust was registered vide registration No. F/64/ Ahmedabad on 2nd April, 1957.
3.2 The appellants respectfully submit that the pursuant to the aforesaid registration, the Trust was established and is administrating, managing and running High School on the land bearing Survey No. 97/1, Final Plot No. 107 (TP Scheme No.7) and put up library on the land bearing final plot No., 83. In the aforesaid high school the Trust has given their part of building to run Tamil medium High School for minimum rent to Ahmedabad Tamil Higher Secondary School.
3.3 The appellants respectfully submit that the appellant is a public charitable trust registered under the provisions of the Bombay Public Trusts Act, 1950 and it was granted registration No.F/64/Ahmedabad. It is submitted that the Page 2 of 44 C/FA/3268/2018 JUDGMENT immovable properties held by the Trust are registered in the requisite register maintained by the office of the Charity Commissioner in Public Trust Register. The appellants further respectfully submit that the activities of the Trust are supposed to being carried out by the Board of Trustees, duly constituted, as provided under the constitution of the Trust. It is respectfully submitted that the Trust being the public trust, its management vests only in its duly elected and constituted Board of Trustees and the Executive Committee including that of General Body, as provided in the constitution of the Trust. The appellants respectfully submit that any change either in the Board of Trustees or in the Executive Committee is required to be notified before the Deputy/Assistant Charity Commissioner as provided under the provisions of the Bombay Public Trusts Act, 1950.
3.4 The appellants respectfully submit that though the appellants are maintaining and running the Library activity in a proper and efficient manner, the respondents herein, with a view to take over the management and usurp the valuable piece of land owned by the Trust, with a mala - fide intention filed Scheme Application No. 3 of 2009 before the Charity Commissioner, Gujarat State at Ahmedabad under Section 50A of the Bombay Public Trust Act, 1950 for framing a scheme for the effective management, administration and running of the Trust.
3.5 The appellants respectfully submit that the Charity Commissioner, Ahmedabad issued notices to the respondents on 14th May, 2009. Upon receipt of the notice Page 3 of 44 C/FA/3268/2018 JUDGMENT the appellants have entered their appearance and filed their written reply vide Exhibit 18 denying and disputing the averments made in the application. It was specifically contended in the written submissions that the applicants have no right or authority to file application under Section 50A of the Bombay Public Trusts Act. It was contended that the applicants have filed the aforesaid application with a mala fide intention and by suppressing the real facts. The applicants were neither Trustees nor the Members and therefore they have no right, power or authority to move such an application.
3.6 It is respectfully submitted that despite that aforesaid contentions raised by the appellants, the Charity Commissioner, Gujarat State vide his order dated 30th May, 2012 allowed the aforesaid application and framed a scheme with respect to the management and administration of Shri Krishna Tamil Vidyalay Trust.
3.7 It is respectfully submitted that the aforesaid order dated 30th May, 2012 was challenged by the appellants herein before the City Civil Court, Ahmedabad by way of filing Civil Misc. Application No. 575 of 2012. It is respectfully submitted that without considering the submissions of the counsel for the appellants, the learned Civil Judge by the impugned judgment and order dated 19 th June, 2017 dismissed the Civil Misc. Application and confirmed the order dated 16th May, 2012 passed by the Charity Commissioner, Gujarat State in Scheme Application No. 3 of 2009."
Page 4 of 44C/FA/3268/2018 JUDGMENT
3. Thus, the appellants, being dissatisfied with the judgment and order passed by the City Civil Court, Ahmedabad, has come up with this Appeal under Section 72(4) of the Act, 1950.
4. Mr.Thapar, the learned counsel appearing for the appellants, submitted that the court below committed a serious error in rejecting the Civil Misc. Application filed by the appellants herein questioning the order passed by the Charity Commissioner framing a scheme in exercise of his powers under Section 50A of the Act, 1950. He would submit that the application filed by the opponents herein before the Charity Commissioner for the purpose of framing of scheme was not maintainable. The Charity Commissioner could not have exercised his powers under Section 50A of the Act, 1950. The learned counsel would submit that the appellant - Trust is registered under the provisions of the Societies Registration Act, 1860 and the Trust is governed by its own memorandum of rules and regulations. The power to amend or modify the rules and regulations vests with the members of the society, and in such circumstances, the Charity Commissioner had no power to frame the scheme under Section 50A of the Act, 1950. The learned counsel further submitted that the power under Section 50A of the Act, 1950 can be exercised by the Charity Commissioner in respect of such trusts which are registered under Rule 8 of the Bombay Public Trusts Rules and not otherwise.
5. In the last, the learned counsel submitted that the appellant - Trust is a minority linguistic trust and it imparts education in the language of Tamil by running a library. Only Page 5 of 44 C/FA/3268/2018 JUDGMENT Tamil speaking students are imparted education.
6. In such circumstances referred to above, the learned counsel prays that there being merit in this First Appeal, the same may be allowed and the impugned order be quashed.
7. On the other hand, this First Appeal has been vehemently opposed by Mr.Vishal T.Patel, the learned counsel appearing for the respondents. Mr.Patel would submit that no error, not to speak of any error of law, could be said to have been committed by the court below in rejecting the application filed by the appellants herein and affirming the order passed by the Charity Commissioner framing the scheme under Section 50A of the Act, 1950.
8. In such circumstances referred to above, Mr.Patel, the learned counsel prays that there being no merit in this First Appeal, the same may be dismissed.
9. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the court below committed any error in passing the impugned order.
10. I would like to first consider, whether an appeal filed under Section 72(4) of the Act, 1950, like the present one, is subject to the restrictions and limitations imposed on a 'Second Appeal' as prescribed under Section 100 CPC ? In other words, whether such an appeal, though registered in this Court as a 'First Appeal' is maintainable even on questions of fact or whether it Page 6 of 44 C/FA/3268/2018 JUDGMENT can be entertained only by the High Court if satisfied that the case involves a substantial question of law, within the meaning of sub-section (1) of Section 100 CPC. I propose to deal with this question before dealing with the merits of this Appeal.
11. Section 2(13) of the Bombay Public Trusts Act, defines a 'public trust' to mean an express or constructive trust for either a public religious or charitable purpose or both and includes a temple, a math, a wakf, church, synagogue, agiary or other place of public religious worship, a dharmaday or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the Societies Registration Act, 1860. Section 18 of the said Act deals with registration of public trusts and sub-section (1) stipulates that it shall be the duty of the trustee of a public trust to make an application for the registration of the Public Trust. Section 19 deals with the inquiry for registration which is to be made by the Deputy or Assistant Charity Commissioner in the manner prescribed for ascertaining the relevant factors for determining whether a trust exists and whether such trust is a public trust. On completion of the enquiry, the Deputy or Assistant Charity Commissioner has to record his findings, with reasons, as provided in Section 20 and Section 21 deals with the entries to be made in the register.
12. Section 70 deals with an appeal against the order of the Deputy or Assistant Charity Commissioner to the Charity Commissioner in respect of a finding under Section 20 and some other provisions with which we are not concerned. Section 72(1) provides that any person aggrieved by the decision of the Charity Page 7 of 44 C/FA/3268/2018 JUDGMENT Commissioner under various sections, including Section 70, on the question as to whether a trust is a public trust or not, may, within 60 days from the date of the decision, apply to the Court to set aside the said decision. Section 2(4) defines 'Court' to mean, in Greater Bombay, the City Civil Court and elsewhere, the District Court.
13. It is thus clear that the Civil Misc. Application No.575 of 2012 filed by the appellants herein in the City Civil Court, Ahmedabad, was an application under Section 72(1) against the judgment and order dated 30th May 2012 passed by the Charity Commissioner, State of Gujarat.
14. Sub-section (2) of Section 72 empowers the Court, after taking evidence if any, to either confirm, or revoke or modify the decision or remit the amount of the surcharge and make such orders as to costs as it thinks proper in the circumstances.
15. In effect, the application to the City Civil Court in this case was an appeal against the order passed by the Charity Commissioner in exercise of his powers under Section 50A of the Act, 1950.
16. The short question of law is whether the appeal before me should be treated as a 'First Appeal' as understood under Section 96 of the Civil Procedure Code which deals with appeals from original decree or whether this appeal, though styled as 'First Appeal' in this Court, is in substance and effect a Second Appeal, subject to the limitations of Section 100 of the Civil Procedure Code where an appeal can be entertained only if the Page 8 of 44 C/FA/3268/2018 JUDGMENT High Court is satisfied that the case involves a substantial question of law. Let me consider the law on the subject.
17. In D.R.Pradhan v. The Bombay State Federation of Goshalas and Panjarapoles, 1956 (58) BLR 894, though the question arose in a different context while deciding the issue of limitation for making an application for setting aside the decision of the Charity Commissioner under Section 72(1) of the Act, Chief Justice Chagla observed at page 896 as under-
"Now, although S.72(1) confers a right upon a person aggrieved by the decision of the Charity Commissioner to apply to the City Civil Court, we must look at and consider the real nature of the right that is conferred by this sub- section. In substance, if not in form, the right is in the nature of an appeal. The application is intended to set aside the decision of the Charity Commissioner and the City Civil Court must consider that decision, and if satisfied that the decision is erroneous, must set it aside and give the necessary relief to the party aggrieved by that decision. Therefore, in substance there is very little difference between an application contemplated by Section 72(1) and a right of appeal against the order of the Charity Commissioner."
18. The above observations make it clear that, in substance, the application made under Section 72(1) to the District Court in the case before me was in the nature of an appeal. In fact, it was an appeal against the order passed under Section 50A of the said Act.
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19. A Division Bench of the Bombay High Court in the case of Shivprasad Shankarlal Pardeshi v. Leelabai Badrinarayan Kalwar, reported in AIR 1998 Bom 131, had the occasion to consider this issue in details. After an exhaustive review of various provisions of the Act and case-law on the subject, the Division Bench ruled that an appeal under Section 72(4) of the Act before the High Court will be subject to the same limitations as are prescribed under Section 100 CPC since there is nothing in Section 72(4) of the Act, 1950, which confers a wider jurisdiction upon the High Court while hearing such an appeal, though styled as a 'First Appeal'. I may quote the relevant observations thus :
"14. The question arose directly before the Apex Court in Ramchandra Govind Pandit v. Charity Commissioner, State of Gujarat, AIR 1987 SC 1598, wherein the Deputy Charity Commissioner had started a suo motu enquiry with regard to the nature of the properties in dispute. He held that the properties were of a public trust. Appeal against the said order was dismissed by the Charity Commissioner. Application to the City Civil Court was also dismissed. First Appeal filed in the High Court of Gujarat was dismissed by the High Court. The appellant then filed Letters Patent Appeal. It was also dismissed, holding that the appeal was not maintainable since the requisite certificate under clause 15 of the Letters Patent was not obtained by the appellant. It was against the dismissal of the Letters Patent Appeal, that the appellant moved the Apex Court. The Division Bench had dismissed the Letters Patent Appeal relying upon an earlier Page 10 of 44 C/FA/3268/2018 JUDGMENT judgment rendered by another Division Bench in Hiragar Dayagar v. Ratanlal, (1972) 13 Guj LR 181 : (AIR 1973 Guj
15). The raio of the decision of Hiragar's case is that the single Judge who disposed of the appeal under Section 72(4) was hearing an appeal in respect of an order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court and that, therefore, it was necessary for the appellant to obtain a certificate from the single Judge that the case was a fit one for appeal to the Division Bench under clause 15 of the Letters Patent Appeal.
The Apex Court considered the contrary view expressed by the Division Bench of this Court in Khivaraj Chhagniram Zavar v. Shivshanker Basappa Lingashetty, AIR 1974 Bom
40. This Court had held that Section 72(1) of the Act provides a remedy by way of an application only. Though the functions of the District Judge under this section are similar to the functions performed by an appellate Court, the decision of the District Judge is not one in an appellate jurisdiction. Hence, where a single Judge hears an appeal from the decision of the District Judge under Section 72, he does not hear an appeal from the decision of an appellate Court within the meaning of clause 15 of the Letters Patent and an appeal against the decision of the single Judge in such a case can be filed without obtaining leave from him. In arriving at this conclusion in Khivraj's case, the Division Bench had distinguished the ratio of D. R. Pradhan's case which we have discussed above. The Apex Court case considered the conflicting views of this Court in D. R. Pradhan's case and in Khivaraj's case as also the views expressed by Gujarat High Court in Hiragar Dayagar's case.
Page 11 of 44C/FA/3268/2018 JUDGMENT The Apex Court considered the scheme of the provisions of the Bombay Public Trusts Act and found it difficult to agree with the view expressed in Khivaraj's case. The Apex Court specifically agreed with the reasoning expressed by Chief Justice Chagla in D. R. Pradhan's case as also the view expressed in Hiragar's case. We find it convenient to reproduce the observations of the Apex Court in paragraphs 8 and 9 in Ramchandra Pandit's case at page 1600 and 1601 :
"8. We have considered the reasoning in the three judgments referred above. With respect, we find it difficult to agree with the reasoning in AIR 1974 Bom
40. We agree with the reasoning in the other two cases. The slender thread on which the appellant's arguments rest is the absence of the word "appeal" in S. 72(1). That alone cannot decide the issue. If the well-known word "appeal" had been used in this section that would have clinched the issue. It is the absence of this word that has necessitated a closer scrutiny of the nature, extent and content of the power under S.72(1).
9. The power of the District Court in exercising jurisdiction under S. 72 is a plenary power. It is true that the Commissioner is not subordinate to the District Court but the District Court has powers to correct, modify, review or set aside the order passed by the Commissioner. All the characteristics of an appeal and all the powers of an appellate Court are available to Page 12 of 44 C/FA/3268/2018 JUDGMENT the District Court while deciding an application under S. 72. To decide this case we must be guided not only by the nomenclature used by the section for the proceedings but by the essence and content of the proceedings. That being so, we have no hesitation to hold that the proceedings before the District Court under S. 72(1) are in the nature of an appeal and that District Court exercises appellate jurisdiction while disposing of a matter under S. 72(1). Consequently, the single Judge of the High Court while deciding the appeal from the order of the District Court deals with a matter made by the District Judge in the exercise of an appellate jurisdiction by a Court subject to the superintendence of the High Court and hence Cl. 15 of the Letters Patent is directly attracted."
The ratio of the decision of Ramchandra Pandit's case leaves no doubt in our mind that all the powers of an appellate Court are available to the District Court while deciding an "application" under S. 72 and we must not decide these issues only by the nomenclature used by the section but by the essence and content of the power conferred upon the District Court or City Civil Court under Section 72 of the Act. That being the position, it would follow that the proceedings before the District Court under Section 72(1) are undoubtedly in the nature of an appeal and what the District Court does is to exercise appellate jurisdiction while disposing of the 'application' under Section 72(1). In Ramchandra Pandit's case the Apex Court dismissed the appeal on the ground that the High Court was right in coming to the conclusion that no Page 13 of 44 C/FA/3268/2018 JUDGMENT Letters Patent Appeal was maintainable in the absence of a certificate under clause 15.
15. Since the question has been referred to us in the light of an apparent conflict between the judgments of some of the single Judges of this Court, we feel it necessary to make a brief reference to them.
16. In Govindrao Devabasappa Manthalkar v. Apparao Devabasappa Manthalkar, 1987 (3) Bom CR 493, A. C. Agarwal, J. was dealing with an identical question as to the nature of the proceedings before the District Court under Section 72(1) of the Act. The other question was as to whether the appeal filed against the order of the District Court, though styled in this Court as a 'First Appeal', should be treated as a 'Second Appeal' subject to the limitations imposed by Section 100 of the Civil Procedure Code. On construction of the relevant provisions of the Act and relying upon the decision of the Apex Court in Ramchandra Pandit's case, Agarwal, J. held that, if one considered the scope, ambit and content of the proceedings before the District Court it will have to be held that the District Court would be exercising appellate jurisdiction. The District Court while dealing with an application under Section 72(1) was given the power to confirm, revoke or modify a decision of the Charity Commissioner. In substance the application is intended to set aside the decision of the Charity Commissioner and one must consider the real nature of the right that is conferred by the sub-section. Consequently it was held that the appeal though styled as 'First Appeal' Page 14 of 44 C/FA/3268/2018 JUDGMENT arises out of an order passed by the District Court in appeal and hence the same shall be treated as a second appeal which has to satisfy the requirements of Section 100 of the Code of Civil Procedure.
17. Maqbul Ahmed Miya Girav v. Hidayatulla Baldi, 1992 Mah LJ 1526, decided by one of us (Savant, J.), dealt with a similar question and relying upon the decision of the Apex Court in Ramchandra Pandit's case, AIR 1987 SC 1598 (supra) and of this Court in D. R. Pradhan's case, 1956 (58) BLR 894, it was held that the appeal under Section 72(4) of the Act to this Court, though styled as 'First Appeal' was in the nature of a 'Second Appeal' and will have to satisfy the requirements of Section 100, C.P.C.
18. In Godawaribai w/o. Manilal Trivedi v. Rambhau Madhaorao Fating, 1992 Mah LJ 230, M. S. Deshpande, J. while dealing with a similar question expressed a contrary view relying upon the judgment of a learned single Judge of the Gujarat High Court (A. M. Ahmadi, J., as His Lordship then was) in Miya Mohamed Abdul Karim v. Collector of Surat, 1977 (18) GLR 488. However, since the counsel agreed that the matter should be disposed of on the basis of the evidence and they would have no objection to the evidence being considered, as if it was a First Appeal, Deshpande, J. did not think it necessary to make a reference to a larger Bench.
19. Recently, R. G. Vaidyanatha, J. while disposing of a group of First Appeals (F.A. 1587 of 1996 and other Page 15 of 44 C/FA/3268/2018 JUDGMENT Companion Appeals) on 13th March, 1997 held that though an appeal under Section 72(4) may be a second appeal under the Act, it does not come within the meaning of a Second Appeal under Section 100, C.P.C. Vaidyanatha, J. referred to the views expressed by other single Judges of this Court and though he agreed that the appeal was a second appeal, he came to the conclusion that, there were no words of limitation in sub-section (4) of Section 72 so as to restrict the powers of this Court as if it were a second appeal under Section 100, C.P.C.
20. At this stage, it is necessry to mention that the view expressed by the Apex Court in Ramchandra Pandit's case (supra) has been recently reiterated by the Apex Court n Nanabhai Dayabhai Patel v. Suleman Isubji Dadabhai, AIR 1996 SC 1184. The Apex Court was dealing with an appeal by Special Leave from the judgment of the Gujarat High Court in L.P.A. No. 10/76 decided on July 27, 1979. In that case the initial enquiry was before the Assistant Charity Commissioner under Section 18 of the Act. Against the order of registration the matter was carried in Appeal under Section 70 of the Act, which appeal was dismissed by the Charity Commissioner. The First Appeal to the High Court was allowed and a further Letters Patent Appeal was allowed by the Division Bench. On an Appeal by Special Leave to the Apex Court, the question arose as to whether the Letters Patent Appeal against the decision of the single Judge would lie, without obtaining the requisite leave under clause 15. In paragraph 4 of the judgment at page 1186, the Apex Court referred to its earlier decision in Ramchandra Page 16 of 44 C/FA/3268/2018 JUDGMENT Pandit's case (supra), summarized the facts and the ratio in that case and concluded thus in para 5 of the judgment at page 1186 :
"5. Consequently, this Court had held that the Letters Patent Appeal against the decision of the learned single Judge did not lie. The same ratio applies to the facts in this case. Leave of the learned single Judge was admittedly not obtained for filing the appeal. Consequently, since the appeal of the learned single Judge arises under the Act by virtue of the statutory conferment of supervisory jurisdiction, by operation of earlier part of clause 15 of the Letters Patent Act would vest in him. The Letters Patent Appeal would not lie to the Division Bench unless the certificate of the learned single Judge has been granted for leave to appeal. In that view, the appeal to the Division Bench was incompetent and is accordingly set aside."
The above ratio of the Apex Court decision leaves no doubt in our mind that the appeal under Section 72(4) is in the nature of a second appeal against which alone, leave under clause 15 of the Letters Patent is required for a further appeal to the Division Bench. It is obvious that if the appeal under Section 72(4) to the High Court was, in substance, a 'First Appeal' and was not a 'Second Appeal', there was no question of insisting upon leave under clause 15 being obtained before filing a Letters Patent Appeal to the Division Bench.
21. There is yet another aspect of the matter which has not Page 17 of 44 C/FA/3268/2018 JUDGMENT been considered in any of the judgments of this Court and we think it necessary to make a reference to the same. Sub- section (1) of Section 4 of the C.P.C. provides that, in the absence of any specific provisions to the contrary, nothing in the C.P.C. shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed by or under any other law for the time being in force. Sub- section (1) of Section 100 of C.P.C. provides that save as otherwise expressly provided in the body of the C.P.C. or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. In our view, therefore, if a special law does not otherwise widen the scope of a 'second appeal', such a second appeal must conform to the limits imposed by Section 100 of the C.P.C. There may be cases where a special statute provides for the remedy of a second appeal and specifically confers power wider than those contemplated by Section 100, C.P.C. In such a case, it may be possible to contend that having regard to the opening words of sub-section (1) of Section 100, C.P.C., a second appeal on ground wider than those provided in Section 100, C.P.C., could be entertained if the special law so provides.
22. In Chunilal Vithaldas v. Mohanlal Motilal Patel, AIR 1967 SC 226, the question arose in the context of the provision for a second appeal under Section 28 of the Saurashtra Rent Control Act, 1951. The question was whether the appellate Page 18 of 44 C/FA/3268/2018 JUDGMENT Court dealing with the second appeal was bound by the same restrictions as are imposed by Section 100, C.P.C. It was argued before the Apex Court that a second appeal under Section 28(1) of the Saurashtra Rent Control Act, 1951 meant an appeal from an appellate decree but the restrictions imposed by Section 100, C.P.C., upon the power of the High Court were not attracted to a "second appeal"
under Section 28 of the Saurashtra Act. The Apex Court considered the scheme of the provisions of the Saurashtra Act, 1951 and of the C.P.C., and concluded in para 9 of the judgment that the Saurashtra Act had merely declared that the second appeal will lie to the High Court against the decrees or orders passed by the Courts exercising jurisdiction under Section 27, but thereby the essential character of a second appeal under the C.P.C. was not altered. There was nothing in the Special Act to conclude that the Legislature had intended to confer upon litigants a right of second appeal unhampered by the restrictions imposed by Section 100, C.P.C. The Apex Court concluded that in a second appeal under Section 28 of the Saurashtra Act, questions which cannot be raised in an appeal under Section 100, C.P.C., could not be raised. It was, therefore, held that a second appeal under Section 28 of the said Act may be entertained by the High Court within the limits prescribed by S. 100, C.P.C. and it is not open to the parties to demand reappraisal of the evidence by the High Court. Observations to this effect are also to be found in paras 10 and 12 of the said decision at page 228.
23. We find the same principle enunciated by the Apex Court Page 19 of 44 C/FA/3268/2018 JUDGMENT in State of Himachal Pradesh v. Maharani Kam Sundri, AIR 1993 SC 1162. This was a case where the special law gave wider powers to the High Court and by virtue of Section 104 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953, the High Court was entitled to reappraise the evidence and come to its own findings even in a Second Appeal. Since the special law viz. the said Himachal Pradesh Act conferred wider powers by virtue of Section 104 on the High Court, it was held that the limitations imposed by Section 100, C.P.C. on the powers of the High Court to interfere with the findings of fact were not applicable and, hence, the High Court was entitled to reappraise the evidence and come to its own findings in view of the wider scope of Section 104 of the Special Act. These observations are to be found in para 3 of the judgment.
24. We may also refer to a Full Bench decision of the Punjab and Haryana High Court in Ganpat v. Smt. Ram Devi, AIR 1978 P and H 137. S. S. Sandhawalia, J. (as he then was) dealt with the provisions of Section 41 of the Punjab Courts Act, 1918 which were no way affected or curtailed by the amended provisions of Section 100, C.P.C. The provisions of Section 41 of the Punjab Courts Act were virtually in pari materia with the unamended provisions of Section 100, C.P.C. But, though provisions of Section 100, C.P.C. were amended by the Amending Act of 1976, there was no corresponding amendment to Section 41 of the Punjab Courts Act, under which the second appeal was entertained. Relying upon the provisions of sub-section (1) of Section 4 as also sub-section (1) of Section 100, C.P.C. the Full Bench Page 20 of 44 C/FA/3268/2018 JUDGMENT came to the conclusion that if the special law had conferred wider jurisdiction on the High Court while dealing with the Second Appeal under Section 41 of the Special Law, the limits imposed by Section 100, C.P.C. could not curtail such powers. These conclusions are to be found in paras 11 to 14 of the judgment at page 140 of the report.
25. In view of the law laid down by the Apex Court in the two cases discussed in paras 22 and 23 above (Chunilal Vithaldas's case and Maharani Kam Sundri's case (supra)) as also the view expressed by the Full Bench of the Punjab and Haryana High Court in Ganpat's case (para 24 above) coupled with the fact that the ratio of the Apex Court decision in Ramchandra Pandit's case (supra) has been reiterated in Nanabhai Dayabhai Patel's case (supra) and having regard to the fact that Section 72(4) of the Bombay Public Trusts Act, does not confer any powers wider than those conferred by Section 100, C.P.C. while dealing with a second appeal, we are clearly of the view that the answer to the first part of first question referred by the learned single Judge must be in the affirmative. We, therefore, hold that an appeal filed under Section 72(4) of the Bombay Public Trusts Act, is subject to the restrictions and limitations imposed under Section 100, C.P.C. while entertaining a Second Appeal. Consequently it would follow that an appeal under Section 72(4) would lie to this Court only if the High Court is satisfied that the case involves a substantial question of law. In substance, such an appeal will be subject to the same limitations as are prescribed under Section 100, C.P.C. since there is nothing in Section 72(4) of the Bombay Public Trusts Act which Page 21 of 44 C/FA/3268/2018 JUDGMENT confers a wider jurisdiction upon this Court while hearing such an appeal, though styled as a First Appeal."
20. I have to my advantage a Division Bench decision of this Court in the case of Parvez Rustamji Bharda v. Navrojji Sorabji Tamboly and others, AIR 2001 Gujarat 160. A Division Bench of this Court, in the above referred case, has taken the view that when a Single Judge of a High Court renders a judgment in exercise of jurisdiction under Section 72 of the Act, 1950, he exercises appellate jurisdiction against a decree passed or order made in exercise of an appellate jurisdiction. To put it differently, he exercises jurisdiction as a second appellate court and not as a first appellate court. Let me clarify that although the Division Bench decision of this Court was in a different context, i.e. with regard to right to file an intra court appeal to a Division Bench, yet the observations fortify the view taken by the Division Bench of the Bombay High Court, referred to above. I may quote the relevant observations thus :
"5. The question, therefore, before us is as to whether LPA against the order passed by the learned single Judge in FA under Section 72 of the Act would be competent. In our opinion, such appeal would not lie and the point is no more res-integra as it is covered by the Division Bench of this Court in Hiragar Dayagar (AIR 1973 Guj 15). In Hiragar Dayagar , almost in identical situation, the Court was called upon to consider the provisions of Sections 70 to 76 of the Act read with Clause 15 of the Letters Patent and maintainability of LPA.Page 22 of 44
C/FA/3268/2018 JUDGMENT Clause 15 of the Letters Patent of Bombay as applicable to this Court, reads thus :
"15. And we further ordain that an appeal shall lie to the said High Court of Judicature at Fort William in Bengal from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of power of superintendence under the provisions of Sec. 107 of the Government of India Act or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Sec. 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Sec. 108 of the Government of India Act made (on or after the first day of February, 1929) in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to us. Our heirs or Page 23 of 44 C/FA/3268/2018 JUDGMENT successors in Our or Their Privy Council, as thereafter provided."
6. In Hiragar Dayagar (AIR 1973 Guj 15), this Court observed that Clause 15 provides a right of appeal from a judgment of one Judge of the High Court to a Division Bench of the High Court. It, however, states that an appeal shall lie from "a judgment of one Judge of the High Court in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court where the Judge who passed the judgment declares that the case is a fit one for appeal". In other words, if a single Judge of the High Court exercises appellate jurisdiction against a decree passed in exercise of appellate jurisdiction and renders a judgment, no appeal as of right would lie against such judgment.
7. In Hiragar Dayagar (AIR 1973 Guj 15), ambit and scope of the expression 'appellate jurisdiction' was considered by the Division Bench. Referring to the relevant provisions of the Act, Bhagwati, C. J. (as he then was) observed (Para 3) :
"The argument of the appellants was that Sec. 72 sub- sec. (1) speaks only of an application to the Court to set aside the decision of the Charity Commissioner and it does not provide for an appeal against the decision of the Charity Commissioner. It is significant, pointed out the appellants, that though the legislature has used the word "appeal" in Secs. 70 and 71, it has departed from Page 24 of 44 C/FA/3268/2018 JUDGMENT this nomenclature in Sec. 72 and while dealing with the proceedings under Sec. 72, it has deliberately and advisedly omitted to use the word "appeal" and characterised that proceeding as an application. The proceeding under Sec. 72 cannot, therefore, be regarded as an appeal to the District Court against the decision of the Charity Commissioner and when the District Court exercises its jurisdiction in relation to an application under Sec. 72, it does not exercise appellate jurisdiction but it exercises a special jurisdiction conferred upon it by Sec. 72. If, contended the appellants, the legislature intended to confer appellate jurisdiction on the District Court, the legislature would have used the well known and familiar expression "appeal" which it has used in Secs. 70 and 71 but the legislature not having used this expression, the inference must be inevitably raised that the jurisdiction which the legislature intended to confer on the District Court under Sec. 72 was not appellate jurisdiction but jurisdiction of a special nature. The Charity Commissiner who is the fourth respondent before us supported this line of argument advanced on behalf of appellants. Respondents Nos. 1 to 3, however, urged that the nomenclature used by the legislature in Sec. 72 was immaterial. What was required to be considered was as to what was the real nature and character of the jurisdiction conferred on the District Court and this could be determined only on a proper consideration of the scope and ambit of the powers exercisable by the District Court in an Page 25 of 44 C/FA/3268/2018 JUDGMENT application under Sec. 72. Respondents Nos. 1 to 3 pointed out that the powers conferred on the District Court while dealing with an application under Sec. 72 were, clearly appellate powers and though the words "appeal" was not used by the legislature, it was really appellate jurisdiction which was being exercised by the District Court while dealing with an application under Section 72. These were the rival contentions of the parties which we shall now proceed to consider."
8. Considering earlier decisions, the Court proceeded to state (Para 5) :
"Now, it may be noticed that the District Court in an application under Sec. 72 is given the power to confirm, revoke or modify the decision of the Charity Commissioner and there are no limits or fetters upon this power. The entire matter which was before the Charity Commissioner is at large before the District Court and the District Court has full and complete power to review the decision of the Charity Commissioner, either on law or on fact, in such manner as it thinks proper. If this be not an appellate power, it is difficult to see what else it can be. It is true that the Charity Commissioner is not subordinate to the District Court in the sense that the District Court has no power of superintendence over the Charity Commissioner but there can be no doubt that inter alia in the matter of his decisions under Sec. 70, the Charity Commissioner is inferior to the District Court in that the District Court Page 26 of 44 C/FA/3268/2018 JUDGMENT has power to revoke or modify his decisions. What is of the essence of an appeal is that a superior Tribunal should have the power to review the decisions of the inferior Tribunal and that power of the District Court certainly has under Sec. 72. The District Court, as we have already pointed out, may confirm, revoke or modify the decisions of the Charity Commissioner on an application under Sec. 72. The District Court may also, in the exercise of its inherent power under Section 76 read with Sec. 151 of the Code of Civil Procedure, make an order of remand to the Charity Commissioner, if the District Court thinks it necessary to do so in a proper case. Vide Chandrakant v. Charity Commissioner, (1965) 6 Guj LR 649. We may point out that sub-section (1A) of Sec. 72 also reinforces the view that the power conferred on the District Court under Sec. 72 is an appellate power. The provision enacted in Sec. (1A) of Sec. 72 is in identical terms as Order 41, Rule 27 of the Code of Civil Procedure and it emphasizes that what the District Court is called upon to do under Sec. 72 is to review the correctness of the decision of the Charity Commissioner on the evidence which was before him and this is clearly a characteristic of appellate power. There can, therefore, be no doubt that though the word "appeal" is not used by the Legislature and the proceedings under Sec. 72 is designated as an application, the jurisdiction conferred on the District Court while dealing with such proceeding is appellate jurisdiction.Page 27 of 44
C/FA/3268/2018 JUDGMENT
9. The Court thus concluded that when the District Court dealt with an application under Section 72 of the Act, it exercised appellate jurisdiction and when the learned single Judge heard an appeal against that order, he can be said to have exercised appellate jurisdiction against a decree passed in exercise of appellate jurisdiction and consequently, no LPA would lie without getting a certificate of fitness from the learned single Judge who decided the matter. Since in that case, no such certificate of fitness was obtained, LPA was held not maintainable.
10. It is no doubt true that the Division Bench of the High Court of Bombay in Khivaraj Chhagniram, (AIR 1974 Bombay 40) had taken a contrary view. But apart from the fact that the said judgment is not binding to this Court and Hiragar Dayagar (AIR 1973 Guj 15) is binding to us, reading Khivaraj Chhagniram, it is obvious that attention of the Court was not invited to the decision of this Court in Hiragar Dayagar. Moreover, the Division Bench of the Bombay High Court in Khivaraj Chhagniram did not consider relevant provisions of the Act. It was also of the view that Clause 15 of the Letters Patent must be construed in the light of the words and expressions used therein by giving natural meaning and one should not go beyond the express language of the said clause.
The Court stated :
"14. It may be remembered that a remedy like an appeal is a creature of law. Unless an appeal is so Page 28 of 44 C/FA/3268/2018 JUDGMENT provided, there does not seem any right in a litigant to approach some higher Court or tribunal by way of an appeal. The expression "appeal" is also a term of an art. The legislature which is fully aware of the difference between the various remedies has chosen in the circumstances of this case, the expression may. . . apply' under Section 72 as against the expression 'an appeal' under Sections 70 and 71. Ordinarily, it is true that when original jurisdiction is being exercised the litigating parties have a right to lead evidence. It is a fundamental right of a party of being heard. The hearing which denies the right of leading evidence could hardly be described as hearing. However, we do not think how the legislature could not divide the right of being heard into different parts and provide a particular tribunal for leading evidence and another tribunal having a higher experience and position to re- examine the entire evidence recorded, by way of an independent remedy. Whether this remedy could be an appeal must depend upon the language used by the legislature. It may be that the functions performed by the Court under this remedy may have similarity with the functions performed otherwise by the appellate Courts. It may be that the legislature has resorted to this time saving device by directing evidence to be recorded before the Deputy or Assistant Charity Commissioner and a further examination of that evidence by way of an appellate remedy by a higher departmental officer viz. Charity Commissioner. However, when the first remedy to approach to a civil Page 29 of 44 C/FA/3268/2018 JUDGMENT Court is made available the legislature has in terms provided an application and not an appeal. It would not be therefore proper to confuse the nature and the functions of the Court under Section 72 with the technical remedy of an appeal which has to be so provided by the legislature ."
11. The Court, therefore, concluded :
"16. In the present case, the narrow question is, whether the Letters Patent Appeal could be filed, as the language goes, as of right or must be filed only with the leave of the learned single Judge? Undoubtedly both are rights of appeal. In one case the party can directly approach a Division Bench and try its luck. In the other case, he has first to obtain leave of that Judge who had decided the matter and then file the appeal. Undoubtedly, the second remedy is more onerous and seeks to curtail the right of appeal to some extent. If it could be held in the present case that the Court under Section 72 was itself exercising the appellate jurisdiction, then undoubtedly, the present appeals filed without the leave of the learned single Judge are incompetent. Such appeals lie only with his leave and not otherwise. If otherwise it could be held, as the natural meaning of the expression suggests, that Section 72 provides a remedy by way of an application only, and though the inquiry held by the District Court seems to have some semblance of an appellate jurisdiction, it is not a jurisdiction created by Page 30 of 44 C/FA/3268/2018 JUDGMENT the legislature as an appellate jurisdiction. It is only where the jurisdiction is appellate and a decision in exercise of such jurisdiction is given, and the High Court has also exercised the appellate jurisdiction, that the bar contemplated by Clause 15 of the Letters Patent of obtaining leave of the Court seems to come in."
12. On the basis of the above reasoning, the Court negatived the preliminary objection raised on behalf of the respondent and held that LPA was maintainable.
13. We may, however, state that after Hiragar Dayagar (AIR 1973 Guj 15) and Khivaraj Chhagniram (AIR 1974 Bombay
40), the point came up for consideration before the Supreme Court in Ramchandra Govardhan Pandit v. Charity Commissioner, State of Gujarat, AIR 1987 SC1598. The Apex Court was called upon to consider correctness or otherwise of two conflicting views - one of the High Court of Gujarat in Hiragar Dayagar and other of the High Court of Bombay in Khivaraj Chhagniram. Approving the view of the High Court of Gujarat and overruling the view of the High Court of Bombay, the Supreme Court observed :
"8. We have considered the reasoning in the three judgments referred above. With respect, we find it difficult to agree with the reasoning in AIR 1974 Bombay 40. We agree with the reasoning in the other two cases. The slender thread on which the appellants' arguments rest is the absence of the word "appeal" in Page 31 of 44 C/FA/3268/2018 JUDGMENT S. 72(1). That alone cannot decide the issue. If the well known word "appeal" had been used in this section that would have clinched the issue. It is the absence of this word that has necessitated a closer scrutiny of the nature, extent and content of the power under S. 72(1).
9. The power of the District Court in exercising jurisdiction under S. 72 is a plenary power. It is true that the Commissioner is not subordinate to the District Court but the District Court has power to correct, modify, review or set aside the order passed by the Commissioner. All the characteristics of an appeal and all the powers of an appellate Court are available to the District Court while deciding an application under S. 72. To decide this case, we must be guided not only by the nomenclature used by the section for the proceedings but by the essence and content of the proceedings. That being so, we have no hesitation to hold that the proceedings before the District Court under S. 72(1) are in the nature of an appeal and that District Court exercises appellate jurisdiction while disposing case and hence Cl. 15 of the Letters Patent is directly attracted ."
14. The above view was reiterated by the Supreme Court in Naranbhai Dayabhai Patel v. Suleman Isubji Dadabhai, AIR 1996 SC 1184.
From the above discussion, in our judgment, the legal position is fairly well settled and it is that when a single Page 32 of 44 C/FA/3268/2018 JUDGMENT Judge of a High Court renders a judgment in exercise of jurisdiction under Section 72 of the Bombay Public Trusts Act, 1950, he exercises appellate jurisdiction against a decree passed or order made in exercise of appellate jurisdiction. To put it differently, he exercises jurisdiction as a second appellate Court and not as a first appellate Court and hence, a party aggrieved by a 'judgment' rendered by the single Judge cannot, as of right, file an intra-Court appeal to a Division Bench of the same High Court without obtaining certificate of fitness from the single Judge who decided the matter."
21. Bearing in mind the scope of the present appeal, I shall now look into the two orders. The Charity Commissioner, State of Gujarat, in the Scheme Application No.3 of 2009, held as under :
"(5) Having concluded the said matter, an advertisement for framing the said Scheme has been given on 20th January 2012 in Sandesh Daily.
(6) In the instant case, an advocate for the Opponents Shri B.K.Gosai has objection against framing of the Scheme and in the cross examination at Exh.36 of the Applicant, in relation to the question that this trust is made for the education of Southern Indians, the Applicant has given an answer in the affirmative. The Applicant has no information with regards to the accounts of the Trust. He does not know as to how many trustees are there in this Trust and gave an answer that when this application was made there were two Page 33 of 44 C/FA/3268/2018 JUDGMENT trustees viz. Meghnathan and Shriram. The Applicant has answered that Library runs in this building of the Trust and library has been closed for 10-15 years. He states that he does not have any evidence to suggest that there is mismanagement in the Trust. Therefore, in view of the cross-
examination of the. Applicant, it does not make it clear as to what objection he has against the framing of the Scheme of the Trust.
(7) The Opponent has tendered his affidavit vide Exh.4l and in the same also he has mentioned the facts giving support to his reply. He has stated that the immovable properties, library building of this institution is situated at Khokhra, Mahemdabad at Survey No.97/l, Final Plot No.107, T.P. Scheme No.7, Varied Scheme and which has been given Final Plot No.83 and library building is situated thereat and has stated that Tamil High School carries on the educational activities for the South Indian children. It does not appear that the Applicant has any dispute to the same. However, he has submitted that some portions of this building have been rented to the Tamil High School and there are other tenants as well. It has also been submitted by the Opponent that, these Applicants are not the members of the Trust nor are they interested persons. However, it is mentioned in the application of the Applicant that this organization is essentially established for the educational development of South Indians and, therefore, the Applicants being South Indians, they are interested persons ('Hitopobhogi') and as such they are beneficiaries and in this regard, advocate Shri Gosai does not have any other objection except for technical Page 34 of 44 C/FA/3268/2018 JUDGMENT objection.
(8) In the instant case, the Opponent has been cross- examined by Shri D.R. Shah, advocate of the Applicant and he has asked questions with regards to the facts of his application. The questions have been asked to the effect that this property is sold to some individuals and applications were also made in past with regards to the sell this property and which was settled. By asking these questions, no conclusion with respect to the facts of application can be arrived at. in the instant case, it has been stated by the Applicant that the main activity is to run the library, which meant. for students and an expenditure of Rs.5 to 6 thousand is being incurred towards the books. It has also been stated that monthly rent of the institutions comes to Rs.1500/-. An approximate amount of Rs.48,000/- towards the rent for two to three years is outstanding. The opponent has admitted the said fact and has also admitted that the previous recoveries which" should have been mentioned in the books of accounts have also not been mentioned. It is also admitted that the same has not even been recorded in the Audit Report and only the expenditure incurred towards magazines and newspapers has been shown in the accounts which were presented. That is to say, as mentioned earlier, the expenses of Rs.5 to 6 thousand which are incurred annually towards the books have not been included in any account and the said fact is proved indirectly. Further, salaries, building repairs and taxation expenses are shown, but it is not revealed as to whether or the actual repairs have been done. On seeing the accounts, two rooms appear to Page 35 of 44 C/FA/3268/2018 JUDGMENT have been given on rent to Jupiter Classes by taking deposit of Rs.58,000/-, however, this Opponent does not have any knowledge about the same. According to his statement, this amount might have been deposited four-five years ago. He has not initiated any legal proceeding in this regard. Therefore, from these facts, one fact is clear that the accounts of this Trust do not borneput to be true and legal. This Opponent admits that he has been suspended from the place where he was employed and the said suspension was cancelled during the inquiry. If the suspension of the applicant is cancelled, then he cannot be held disqualified and, therefore, in order to make the accounts of this trust appropriate and proper and to run the administration of this trust, there arises a definite need for the scheme.
(9) In the instant case, the constitution of the Trust has been submitted by the Applicant. It is the same constitution which was registered on the P.T.R. in the year 1946, and, therefore, as many years have passed since 1946 to 2012, it would be just and reasonable, if the scheme is framed. In the circumstances, it would be fair and reasonable if the scheme is framed and some changes are made in the Constitution. In the circumstances, by allowing the proposed scheme with some modifications it is deemed just and reasonable to pass an order for framing a Scheme.
- ORDER -
The Application of the Applicants is allowed.
The Scheme, in accordance with the Schedule hereto, is framed fer the smooth administration and management of Page 36 of 44 C/FA/3268/2018 JUDGMENT Shri Krishna Tamil Vidhyalaya Trust, bearing Registration No.F/64/Ahmedabad.
It is further ordered that the Scheme should be implemented upon within one month from the date of order.
Further, the Trustees are directed to immediately file the change report in this regard and to act in accordance with the provisions of the Constitution mentioned in the Schedule hereto."
22. The court below, while rejecting the application filed by the appellants herein, observed as under :
"4. In the aforesaid circumstances, taking into consideration the entire facts of this application, the arguments made by learned advocates for both the sides, all the documentary evidences produced on the record and especially upon examining the order below Exh.46 passed by learned Charity Commissioner, Gujarat State, Ahmedabad in Scheme Application No.3/2009 in the context of submissions made by both the parties, it emerges the fact that the Applicants herein had filed the an application for framing the Scheme under Section 50(A) of the Bombay Public Trusts Act, 1950 for proper administration and management of Shri Krishna Tamil Vidhyalaya Trust bearing Registration No.F/64/Ahmedabad. Applicants are permanent residents of the city of Ahmedabad and that the Deputy Charity Commissioner, Ahmedabad has registered Shri Krishna Tamil Vidhyalaya Trust as education institution Page 37 of 44 C/FA/3268/2018 JUDGMENT for South Indians by passing an order dated 23.04.57 below Application No.18, 19 and 20. It has also transpired from the record that, the said Shri Krishna Tamil Vidhyalaya Trust is an immovable property at Maninagar. Ahmedabad Dakshin Tamil carries on the educational activities for South Indian children. There are also tenants in the Trust property. Tamil Welfare Education Trust is the Tamil School at Ahmedabad, In this context, with a bonafide intention to make development of the Trust and to ensure that the Trust functions actively, the present Applicants have filed the application for framing a Scheme before the learned Charity Commissioner and it was also contended before the learned Charity Commissioner that the founder trustees were inactive and were not carrying on any objective based activity and have privately held unauthorized and illegal transactions with the builders and thereby frittered away the property of Shri Krishna Tamil Vidhyalaya and hence, and this prompted framing of the Scheme. On perusing the records and especially on seeking the impugned order and considering the submissions made by both the parties, it appears that the Applicant herein i.e. Opponents in the original Scheme Application were issued a notice by the Charity Commissioner on 14.05.09 and even the advocate had also appeared on behalf of the Opponents and even written statement was also filed vide Exh.18 and it has find reference to the fact that the facts which are mentioned in the present Civil Miscellaneous Application were also mentioned in the reply filed in the "form of objection before the Charity Commissioner. On seeing the record, it also appears that in order to frame the Scheme, an advertisement was published Page 38 of 44 C/FA/3268/2018 JUDGMENT in Sandesh daily on 20.01.12, wherein objection was raised through an advocate and even necessary representations were also made. Therefore, after hearing both the parties and particularly after taking cross-examination by recording the evidence, since the Charity Commissioner was fully satisfied with the fact that several activities carried on by the Trust were not only illegal but the accounts of the Trust were also not proper and were not being maintained in a proper and systematic manner, passed an order for framing the Scheme. In the circumstances, the argument advanced by the learned advocate for the Applicant appears to have been contrary to the record from the very beginning and upon perusing the written statement, affidavit and objections produced by the learned advocate for the Opponent and particularly upon perusing the document produced at Exh.26 it also appears that the legal procedure has been followed in the Scheme Application No.3/2009 filed before the learned Charity Commissioner and no illegalities appears to have been committed. It also transpires from the record that the Applicant has filed affidavit of examination-in -chief before the Charity Commissioner on 04.04.12 and the cross- examination in the same was also completed on 30.04.12 and a copy thereof has also been produced in the present matter vide Mark 26/2. In addition to this, a copy of the Rojnama prepared in respect of the said Scheme Application in the Office of learned Charity Commissioner is produced vide Mark 26/1 and a copy of cross examination of the Trustees/Administrator of the Trust was produced during the hearing in said Scheme Application vide Mark 26/3. On careful consideration of all these documents, it becomes Page 39 of 44 C/FA/3268/2018 JUDGMENT clear that in fact the allegations levelled in that context by the Applicant in their rejoinder affidavit against the Charity Commissioner are inappropriate and in support of such allegations, they could not produced any strong fact before the Court. Moreover, the order passed by the Charity Commissioner also appears to have been legal and appears to have been passed in an appropriate manner. On seeing the entire record, the Scheme has been framed in the interest of all the beneficiaries of the Trust. On seeing the impugned order of the Charity Commissioner, no inappropriate proceeding appears to have been done and, therefore, only the Applicants could not establish any ground which warrants interference in the said order. Further, it is also worth taking into consideration that the Scheme has been implemented upon within one month from the order of learned Charity Commissioner and even when the said fact is also worth considering, the submission made by the Applicant that the said order is illegal and that the Applicants were not being heard appears to have been far from the truth.
5. On perusing the facts of the case of 1974 G.L.R. Page No.411 cited by the learned advocate for the Opponent, it clearly appears that the learned Charity Commissioner has passed an order for framing the Scheme by taking into consideration the evidence lying before him and, therefore, also even when the order is passed after providing adequate opportunity to the applicant, there appears to have been no reason for interfering with the same. When this Trust has been registered under the Societies Registration Act, 1960 in Page 40 of 44 C/FA/3268/2018 JUDGMENT the year 1944 and thereafter, when it was registered under the Trust Act, the same also makes it clear that the 'Charity Commissioner has the power, authority and jurisdiction to frame the Scheme in accordance with the provisions of the Trust Act. In these circumstances also the disputes raised by the Applicants with regards to the jurisdiction of the Charity Commissioner is not believable. It is worth pertinent to note at this stage that, the above referred judgments which were cited by the Applicants in para - 8 of their original Application do not appear to have been applicable to the case on hand because on seeing the essence of the said judgments, the facts of said judgments are made applicable to the Applicant only when an order is passed without giving opportunity of being heard to anyone and is passed without any authority or jurisdiction. In the case on hand, adequate opportunity has been given to the Applicant, evidences have been obtained, examination-in-chief and cross-examination of the concerned parties have been done and even the Charity Commissioner has also provided an opportunity of making representation by issuing notice in Scheme Application No.3/2009. In view of the same also the facts mentioned in the present Application and the submissions made in that regards appears to be uncalled for. Therefore, since there have been no reason to believe the submissions or contentions raised by the Applicants in respect of the reliefs prayed for by them and taking into consideration the submissions made by the learned advocate for the opponents and the fact: available on the record and true copies of documents available on the record before the learned Charity Commissioner, the present Civil Misc.Page 41 of 44
C/FA/3268/2018 JUDGMENT Application appears to have been filed only for creating hurdles and therefore, following final order is passed.
ORDER
1. The present Civil Misc. Application is hereby rejected.
2. The Applicant shall pay costs of Rs. 5000/- (Rupees Five Thousand Only) to the Opponent and shall bear his own costs.
Order is pronounced in the open Court on this 19th day of June, 2017."
23. The provisions of Section 50A of the Act, 1950, came into force in the State of Gujarat from 1st July 1961. In order to approve the working of the public trusts, the Charity Commissioner has been empowered by the Legislature to frame a scheme. The power is given to the Charity Commissioner to frame a scheme, when a suit being filed. Before this provision was made in the Act, 1950, if a scheme was required to be framed, and there were and are many religious trusts which run without any constitution, rules, regulations or scheme, a suit had to be filed. It took years before a scheme to be framed and nobody would be prepared to file such suits, with the result that a number of trusts were run at random, arbitrarily by 'Mahants' who invariably are the sole trustees. Now scheme could be framed speedily and at a much lesser cost. There is no doubt that the functions to be discharged by the Charity Commissioner in a proceeding under Section 50A of the Act are of a quasi- judicial character. The powers under this scheme are to be Page 42 of 44 C/FA/3268/2018 JUDGMENT exercised by the concerned officer on subjective satisfaction. This is a power conferred under an Act under special contingency when it is necessary or expedient to frame a scheme in the interest of a public trust. The term 'necessary' means 'what is indispensable, needful, essential'. The term 'expedient' has no doubt a wide ambit and gives a large scope to the exercise of power.
24. The Charity Commissioner, in his order, has given more than a fair idea about the entire background of the trust and its activities. It has also noted the various irregularities in the conduct and administration of the trust as pointed out by the respondents herein. A public advertisement was also issued dated 20th January 2012 in 'Sandesh' daily. Ultimately, the Charity Commissioner, being satisfied as regards the need to frame a scheme, proceeded to allow the application. The appellants herein, being dissatisfied with the order passed by the Charity Commissioner, appealed before the City Civil Court. The City Civil Court also looked into all the relevant aspects of the matter and ultimately thought fit to affirm the order passed by the Charity Commissioner framing the scheme.
25. In such circumstances referred to above and more particularly having regard to the scope of the present appeal as discussed above, I see no good reason to disturb the order passed by the City Civil Court affirming the scheme framed by the Charity Commissioner. The findings recorded by the court below cannot be termed as perverse. There is no jurisdictional error or infirmity in the order, warranting any interference in the present Appeal.
Page 43 of 44C/FA/3268/2018 JUDGMENT
26. In the result, this Appeal fails and is hereby dismissed. As the First Appeal has been dismissed, the connected Civil Application would not survive and the same is disposed of accordingly.
(J.B.PARDIWALA, J.) /MOINUDDIN Page 44 of 44