Gujarat High Court
Shri Dhansukhbhai Lallubhai Patel vs Shri Nitinbhai Gunvantbhai Patel on 6 April, 2018
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/18696/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18696 of 2015
With
R/SPECIAL CIVIL APPLICATION NO. 18699 of 2015
With
R/SPECIAL CIVIL APPLICATION NO. 18704 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI
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1 Whether Reporters of Local Papers may be allowed to NO see the judgment ?
2 To be referred to the Reporter or not ? NO 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 ?
========================================================== SHRI DHANSUKHBHAI LALLUBHAI PATEL Versus SHRI NITINBHAI GUNVANTBHAI PATEL ========================================================== Appearance in SPECIAL CIVIL APPLICATION NO. 18696 of 2015 MR DHAVAL D VYAS(3225) for the PETITIONER(s) No. 1 MR. N.D. NANAVATY, SENIOR ADVOCTE FOR NANAVATY ADVOCATES(1373) for the RESPONDENT(s) No. 1, 3, 6 GOVERNMENT PLEADER(1) for the RESPONDENT(s) No. 7 MR ASIT B JOSHI(2567) for the RESPONDENT(s) No. 9 NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2 - 4, 5, 9 Appearance in SPECIAL CIVIL APPLICATION NO. 18699 of 2015 MR. MIHIR THAKORE, SENIOR ADVOCATE WITH MR ARPIT A KAPADIA, ADVOCATE for the Petitioner(s) No. 1 - 2 MR ASIT B JOSHI, ADVOCATE for the Respondent(s) No. 2, 6, 8 MR. N.D. NANAVATY, SENIOR ADVOCATE FOR NANAVATY ADVOCATES(1373) for the RESPONDENT(s) No. 3, 5, 7 Page 1 of 10 C/SCA/18696/2015 CAV JUDGMENT GOVERNMENT PLEADER for the Respondent(s) No. 9 NOTICE SERVED BY DS for the Respondent(s) No. 2, 4, 6 - 9, 10 UNSERVED-EXPIRED (N) for the Respondent(s) No. 1 Appearance in SPECIAL CIVIL APPLICATION NO. 18704 of 2015 MR. MIHIR THAKORE, SENIOR ADVOCATE WITH MR ARPIT A KAPADIA, ADVOCATE for the Petitioner(s) No. 1 - 2 MR ASIT B JOSHI, ADVOCATE for the Respondent(s) No. 2, 6, 8 MR. N.D. NANAVATY, SENIOR ADVOCATE FOR NANAVATY ADVOCATES(1373) for the RESPONDENT(s) No. 3, 5, 7 GOVERNMENT PLEADER for the Respondent(s) No. 9 NOTICE SERVED BY DS for the Respondent(s) No. 2, 4, 6, 8, 10 UNSERVED-EXPIRED (N) for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI Date : 06/04/2018 COMMON CAV JUDGMENT
1. All the three petitions are arising out of the common order dated 14.10.2015 passed by the In-charge Joint Charity Commissioner, Surat, Camp at Vadodara, in Judicial Misc. Application Nos. 21 of 2010 (13 of 2013), 5 of 2013 (9 of 2013) and 6 of 2012 (10 of 2013), whereby he had rejected all the three applications.
2. The Special Civil Application No. 18696 of 2015 has been preferred by the petitioner - Dhansukhbhai Lallubhai Patel, the applicant in Judicial Misc. Application No. 21 of 2010 filed under Section 41 of the Bombay Public Trust Act, 1950 (hereinafter referred to as 'the said Act') claiming to be one of the trustees of the Kosmada Gam Gaushala Trust (hereinafter referred to as 'the said trust'). In the said Page 2 of 10 C/SCA/18696/2015 CAV JUDGMENT application, the applicant had sought injunction against the co-trustees of the said trust for restraining them from alienating or parting with the trust properties without following the procedure under the said Act.
3. The Special Civil Application No. 18699 of 2015 and Special Civil Application No. 18704 of 2015 have been preferred by the petitioners Hareshbhai Zinabhai Desai and Nikunj Dolatbhai Ahir, the applicants of Judicial Misc. Application Nos. 6 of 2012 and Judicial Misc. Application No. 5 of 2013 respectively filed under Section 41-A of the said Act claiming to be the beneficiaries of the said trust. In the Judicial Misc. Application No. 6 of 2012, the applicants had sought permanent injunction restraining the trustees of the said trust from creating any third party rights in the lands in question. In the Judicial Misc. Application No. 5 of 2013, the said applicants had challenged the alleged lease agreement dated 09.06.2010 executed by the trustees in favour of the respondent Rameshbhai Sakaria, and sought declaration and permanent injunction for restraining the respondents from creating third party interest in the lands in question.
4. As stated hereinabove, all the three Judicial Misc. Applications were dismissed by the In-charge Joint Charity Commissioner vide Page 3 of 10 C/SCA/18696/2015 CAV JUDGMENT the impugned order 14.10.2015.
5. It may be noted that the petitioners Hareshbhai Zinabhai Desai and Nikunj Dolatbhai Ahir had also filed two petitions being Special Civil Application No. 10593 of 2016 and 10594 of 2016, which were dismissed by the Court as having become infructuous vide the order dated 31.01.2018 :
"Learned Senior Advocate Mr. Nanavati appearing for Mr. Mrugen K. Purohit, learned advocate for some of the respondents states that the concerned respondents have already filed the pursish before the Assistant Charity Commissioner for withdrawal of the change report as the registration of the Kosmada Gaam Gaushala Trust, Surat has already been cancelled, and therefore the present petitions would not survive at this juncture. The learned advocate Mr. Thakore, for the petitioners does not dispute the said position.
In view of the above, the petitions are dismissed as do not survive. Notice is discharged. Interim relief granted earlier stands vacated forthwith."
6. Another Special Civil Application being No. 14898 of 2012 arising out of an interim order passed in Judicial Misc. Application No. 6 of 2012 filed by the said two petitioners was withdrawn by them as per the order dated 24.06.2013.
7. Now, as transpiring from the record of these petitions, one trust namely Kosmada Charan Trust Page 4 of 10 C/SCA/18696/2015 CAV JUDGMENT was registered with the office of Charity Commissioner under the said Act bearing registration No. E/821/Surat. The said trust owned the lands bearing Survey Nos. 26, 27, 28, 29, 156, 166, 172, 174, 175, 177, 178, 205, 206, 207 and 305 of village Kosmada, District Surat. One another trust was established and registered in the name of Kosmada Gam Gaushala Trust, which was registered at No. E/1563/Surat. The lands which were originally owned by the Kosmada Charan Trust were transferred to the other trust i.e. Kosmada Gam Gaushala Trust as per the change report No. 661/1976, approved by the then Assistant Charity Commissioner, Surat vide the order dated 25.11.1976. Since it was alleged that some of the co-trustees of Kosmada Gam Gaushala Trust were trying to induct the other persons as trustees, and alienate and transfer the said lands, the applications, as aforesaid, were filed by the respective petitioners, which have been dismissed by the In-charge Joint Charity Commissioner vide the impugned order.
8. At the outset, the learned Senior Advocate Mr. N.D. Nanavaty appearing for the respondent Nos. 1, 3 and 6 in Special Civil Application No. 18696 of 2015 and for the respondent Nos. 3, 5 and 7 in Special Civil Application No. 18699 of 2015 and 18704 of 2015, submitted that the very registration of the Kosmada Gam Gaushala Trust has been cancelled by the Chairty Commissioner Page 5 of 10 C/SCA/18696/2015 CAV JUDGMENT and the concerned respondents have also withdrawn the change report submitted to the Charity Commissioner adding new trustees. The term of the alleged lease agreement executed by some of the trustees of the said trust has also come to an end. The criminal proceedings with regard to the execution of the said alleged lease agreement are pending in the concerned Court, which shall be separately dealt with by the said Court. He further submitted that apart from the fact that the petitioners of the petitions being Special Civil Application Nos. 18699 of 2015 and 18704 of 2015 have no locus standi to file the petitions, all the three petitions as such have become infructuous. However, the learned Senior Advocate Mr. Mihir Thakore appearing for the petitioners in Special Civil Application No. 18699 of 2015 and 18704 of 2015 vehemently submitted that the impugned order passed by the Incharge Joint Charity Commissioner was without any application of mind, arbitrary and illegal. According to him, having regard to the seriousness of the issues involved in the applications filed by the petitioners, the Joint Charity Commissioner was excepted to make proper inquiry as regard to the alleged irregularities and illegalities committed by the trustees of the said trust, and should have issued necessary directions for the proper administration of the trust in question. Mr. Thakore had relied upon the decision of the Page 6 of 10 C/SCA/18696/2015 CAV JUDGMENT Division bench in the case of Pavankumar Jain and Others versus Priyavadan Ambalal Patel and Others reported in 2016(1) GLR 242, to submit that the powers of the Charity Commissioner under Section 41-A were not restricted to the matters falling under Section 32 to 41 of the said Act. Mr. Dhaval D. Vyas appearing for the petitioner in Special Civil Application No. 18696 of 2015 has requested the Court to pass appropriate order in the facts and circumstance of the case.
9. Having regard to the submissions made by the learned advocates for the parties and more particularly, the submissions made by the learned Senior Advocate Mr. Nanavati appearing for the concerned respondents that the registration of the Kosmada Gam Gaushala Trust has already been cancelled, and the change report which was pending for approval seeking incorporation of some of the respondents as the trustees has already been withdrawn by the concerned respondents, the Court is of the opinion that the very cause of action for filing Judicial Misc. Applications before the Joint Charity Commissioner seeking directions for the proper administration of the said trust, does not survive, and therefore, the present petitions also do not survive. When the trust itself does not exist, the prayers seeking directions to the trustees for the proper Page 7 of 10 C/SCA/18696/2015 CAV JUDGMENT administration of the trust under Section 41-A do not survive.
10. The said position with regard to cancellation of the registration of the said trust, has not been disputed by the learned Senior Advocate Mr. Thakore. It is needless to say that the aggrieved parties may challenge the order of cancellation of registration before the appropriate Forum as may be permissible under the law, nonetheless, the present petitions arising out of the order passed by the Joint Charity Commissioner rejecting the applications filed under Section 41-A of the said Act for the proper administration of the said trust, whose registration itself under the said Act has been cancelled, would certainly not survive.
11. So far as the merits of the petitions are concerned, it cannot be gainsaid that the Charity Commissioner has powers under Section 41-A of the said Act to issue directions, subject to the provisions of the said Act to any trustee of the public trust or any person connected therewith to ensure that such trust is property administered and the income thereof is properly accounted for or duly appropriated and applied to the objects and for the purposes of the trust. As observed by the Division Bench of this Court in the case of Syedna Mohamed Burhanuddin versus Charity Commissioner reported Page 8 of 10 C/SCA/18696/2015 CAV JUDGMENT in (1992) 1 GLH 331, Section 41-A of the Trust Act is enabling provision intended to make implementation and enforcement of the provisions of Section 32 to 41 more effective. Of course, in case of Pavankumar Jain and Others versus Priyavadan Ambalal Patel and Others (supra), relied upon by the Mr. Thakore, it is observed inter alia that powers of Charity Commissioner under Section 41-A are not restricted to the matters contained in Section 32 to 41, and that the words 'subject to other provisions of this Act' contained in Section 41-A would mean that the Charity Commissioner cannot issue directions that may violate or run contrary to the other provisions of the Act.
12. In the instant cases, the Joint Charity Commissioner has rightly considered the scope and powers of Section 41-A of the said Act and rejected the Judicial Misc. Applications filed by the applicants holding inter alia that the prayers of declaration and permanent injunction in respect of the lands in question, which were adjudicating in nature could not be granted under Section 41-A and that the injunction of permanent nature as prayed for also could not be issued under Section 41-A of the said Act. Though, it was sought to be submitted by the learned Senior Advocate Mr. Thakore that the lease deed dated 09.06.2010 executed by the trustees in favour of the respondent Rameshbhai Page 9 of 10 C/SCA/18696/2015 CAV JUDGMENT Sakaria was in contravention of Section 36 of the Act and illegal, the said submission does not deserve any consideration at this stage when the registration of the trust itself has been cancelled, and the alleged trustees are no more the trustees in the said trust. Even otherwise, the petitions involving highly disputed questions of facts and that too at the instance of the petitioners whose own locus standi is doubtful, do not deserve any further consideration and deserve to be dismissed.
13. In that view of the matter, all the petitions are hereby dismissed. Notices are discharged in all the petitions.
(BELA M. TRIVEDI, J) AMAR SINGH Page 10 of 10