Gujarat High Court
Shri Maninagar Swaminarayan Gaadi ... vs Rameshbhai Mangalbhai Prajapati on 3 November, 2020
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/18070/2019 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR MODIFICATION OF ORDER) NO. 1 of
2020
In R/SPECIAL CIVIL APPLICATION NO. 18070 of 2019
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SHRI MANINAGAR SWAMINARAYAN GAADI SANSTHAN SHREEJI SANKALP MURTY AADHYA ACHARY PRAVAR Versus RAMESHBHAI MANGALBHAI PRAJAPATI ================================================================ Appearance:
for the PETITIONER(s) No. MS UTPALA S BORA for the PETITIONER(s) No. MR SOAHAM JOSHI, AGP for the RESPONDENT(s) No. MR JV VAGHELA for the RESPONDENT(s) No. NOTICE SERVED BY DS for the RESPONDENT(s) No. ================================================================ CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA Date : 03/11/2020 IA ORDER
1. Heard learned Senior Advocate Mr. M.C. Bhatt assisted by learned advocate Mr.Robin Prasad with learned advocate Ms. Utpala S. Bora for the applicant, learned advocate Ms. Mamta Vyas for the respondent no.2 ,learned advocate Mr. J.V. Vaghela for the respondent no.3 and learned Assistant Government Pleader Mr. Soaham Joshi for the respondent Charity Commissioner through video conference.
2. By way of this application, the applicant has prayed for modification/clarification of the order Page 1 of 9 Downloaded on : Sun Feb 28 05:16:25 IST 2021 C/SCA/18070/2019 IA ORDER dated 17th December, 2019 passed in Special Civil Application no.18070 of 2019. This Court passed the following order on 17th December, 2019.
"Learned advocate Mr.M.C.Bhatt for the petitioner, under instructions, seeks permission to withdraw these petitions. However, he makes a request that the amount of Rs.7,51,00,000/ deposited by the petitioner, be refunded with accrued interest thereon.
Permission, as prayed for is granted.
Petitions are disposed of as withdrawn. The petitioner may make an application before the Charity Commissioner for refund of amount, deposited by the petitioner, to be refunded with accrued interest thereon and the Charity Commissioner shall pass appropriate order for refund of the amount to the petitioner, with accrued interest thereon, within a period of four weeks from the date of receipt of the application."
3. It appears that pursuant to the aforesaid order, an application was preferred before the Charity Commissioner for refund of the amount of Rs.7,51,00,000/ with interest accrued thereon. However, the Charity Commissioner, passed an order only to refund the principle amount of Rs.7,51,00,000/ and did not grant the interest accrued on the amount deposited by the applicant original petitioner before the respondent no.2 Trust. The Charity Commissioner has passed the following order denying the grant of accrued interest to the Page 2 of 9 Downloaded on : Sun Feb 28 05:16:25 IST 2021 C/SCA/18070/2019 IA ORDER applicantoriginal petitioner:
"3. For the purpose of withdrawal of the amount, an application has been preferred as per the direction of the Hon'ble High Court. It is not in dispute that whatever the amount of Rs. 7,51,00,000/, as such it was not deposited but it was an amount of donation to the Ramji Mandir, Sargasan. As the receipt on the record speaks that it is not an amount of sale consideration but Shri Maninagar Swaminarrayan Gadi Sanstthan Shreeji Sankalp Murty Aadhya Acharyapravar Dharmdhurandhar 1008 Shree Muktajivan Swamibapa Suvarnajayanti Mahotsav Smarak Trust donated the said amount and that donation has been returned by the Ramji Mandir to Shri Maninagar Swaminarrayan Gadi Sansthan Shreeji Sankalp Murty Aadhya Acharyapravar Dharmdhurandhar 1008 Shree Muktajivan Swamibapa Suvarnajayanti Mahotsav Smarak Trust.
4. Now, the Shri Maninagar Swaminarayan Gadi Sansthan Shreeji Sankalp Murty Aadhya Acharyapravar Dharmdhurandhar 1008 Shree Muktajivan Swamibapa Suvarnajayanti Mahotsav Smarak Trust lodged the present application that whatever the amount of interest has accrued may be awarded by the Charity Commissioner, and for that purpose, the applicant is at liberty to approach to the Charity Commissioner. Now, the question will arise that whether that amount was to be treated fas an amount of sale transaction ? The reply to that is "No". But the Shri Maninagar Swaminarayan Gadi Sansthan Shreeji Sankalp Murty Aadhya Accharyapravar Dharmdhurandhar 1008 Shree Muktajivan Swamibapa Suvarnajayanti Mahotsav Smaraks Trust had donated that amount and the necessary resolution also speaks that Page 3 of 9 Downloaded on : Sun Feb 28 05:16:25 IST 2021 C/SCA/18070/2019 IA ORDER they are donating the said amount to the Ramji Mandir, Sargasan. Both of the trusts were pleased to pass the necessary resolutions. The trustees of the Ramji Mandir, Sargasan were insisting that it was agreed that in the land of the trust, a temple was to be erected and that land is not to be alienated for any commercial activities.
5. Otherwise, there were so many offerers and they were ready to offer more amount, but the purpose of the trustees of Shri Ramji Mandir was only that they are ready to alienate the property to those who are ready tto built a temple in the said land. Shri Maninagar Swaminarayan Gadi Sansthan Shreeji Sankalp Murty Aadhya Acharyapravar Dharmdhurandhar 1008 Shree Muktajivan Swamibapa Suvarnajayanti Mahotsav Smarak Trust was agreed and both of the trusts passed a necessary resolution and therefore, the amount for payment tto alienate the property of the trust "Shri Ramji Mandir, Sargasan" by way of gift to "Shri Maninagar Swaminarayan Gadi Sansthan Shreeji Sankalp Murty Aadhya Acharyapravar Dharmdhurandhar 1008 Shree Muktajivan Swamibapa Suvarnajayanti Mahotsav Smarak Trust". But I don't know that such proceeding was treated as the sale but it was not for sale, it was a gift. What has been done is done.
6. Now, the question arises whether the Charity Commissioner can compel Shri Ramji Mandir, Sargasan to hand it over the amount of donation to Shri Maninagar Swaminarayan Gadi Sansthan Shreeji Sankalp Murty Aadhya Acharyapravar Dharmdhurandhar 1008 Shree Muktajivan Swamibapa Suvarnajayanti Mahotsav Smarak Trust. For that reason, I am of the view that the entire proceeding was treated as Page 4 of 9 Downloaded on : Sun Feb 28 05:16:25 IST 2021 C/SCA/18070/2019 IA ORDER the alienation of the trust property by sway of gift and that amount of Rs. 7,51,00,000/ was not an amount of sale consideration. The gift amount of Rs. 7,51,00,000/ has already given back by the Ramji Mandir to Shri Maninagar Swaminarayan Gadi Sansthan Shreeji Sankalp Murty Aadhya Acharyapravar Dharmdhurandhar 1008 Shree Muktajivan Swamibapa Suvarnajayanti Mahotsav Smarak Trust and that is not the dispute between the parties. Now, the parties are insisting that whatever the amount of interest accrued by depositing that amount of Rs. 7,51,00,000/ in the bank, that amountmust also be returned to Shri Maninagar Swaminarayan Gadi Sansthan Shreeji Sankalp Murty Aadhya Acharyapravar Dharmdhurandhar 1008 Shree Muktajivan Swamibapa Suvarnajayanti Mahotsav Smarak Trust.
7. I am failed to understand that power does not come within the power wasted to the Charity Commissioner under the Bombay Public Trust Act, 1950. If Shri Maninagar Swaminarayan Gadi Sansthan Shreeji Sankalp Murty Aadhya Acharyapravar Dharmdhurandhar 1008 Shree Muktajivan Swamibapa Suvarnajayanti Mahotsav Smarak Trust has to get the amount of interest back they are at liberty tto approach to the appropriate Forum, as the entire amount of Rs. 7,51,00,000/ was an amount of donation and not the sale transaction. However, both the parties are at liberty to approach to the appropriate Forum for the purpose of recovery of the interest amount by filing a suit, if they are desirous so. As far as the powers of the Charity Commissioner are concerned, the present application is not tenable before the Charity Commissioner hence stands disposed of accordingly."Page 5 of 9 Downloaded on : Sun Feb 28 05:16:25 IST 2021
C/SCA/18070/2019 IA ORDER 4. It appears that the Charity Commissioner has
considered the earlier order passed for not utilizing any amount which was deposited by the applicant - petitioner by the respondent trust. From the perusal of the aforesaid order passed by the Charity Commissioner, it appears that the Charity Commissioner has failed to consider the direction given by this Court to pass appropriate order to refund the amount of Rs.7,51,00,000/ with interest accrued thereon. The Charity Commissioner has misinterpreted the order passed by this Court by observing that he has no power to pass an order for the interest accrued and if the Trust wants to get the amount of interest, then they have to approach the appropriate forum, as the amount of Rs.7,51,00,000/ was amount of donation and not the sale transaction. He therefore, raised his hands in helplessness for not implementing the order passed by this Court to refund the amount of Rs.7,51,00,000/ with accrued interest thereon.
5. The Charity Commissioner has further filed an affidavit, wherein it is clarified by him with regard to the aforesaid order as under : "6. At the outset, it is respectfully submitted that the applicant herein filed Special Civil Application No. 18065 of 2019 with Special Civil Application No. 18070 of 2019 before this Hon'ble Court. It is submitted that vide order dated 17.12.2019 this Hon'ble Court was pleased to dispose of the petition with a direction to the Charity Commissioner that the applicant herein may make an application before the Charity Page 6 of 9 Downloaded on : Sun Feb 28 05:16:25 IST 2021 C/SCA/18070/2019 IA ORDER Commissioner for refund of amount, deposited by the petitioner, to be refunded with accrued interest thereon and the Charity Commissioner shall pass appropriate order for refund of the amount to the petitioner, with accrued interest thereon, within a period of four weeks from the date of receipt of the application.
7. It is respectfully submitted that one Mr. Vasantbhai Bhalabhai Patel filed application for refund of the interest of the amount on fixed deposit of Rs. 7 Crores 51 Lakhs. The said application was filed on 16.03.2020 Annexure G to the Memorandum of Application. It is submitted that the office of the Learned Charity Commissioner issued notice on 18.03.2020 making it returnable on 26.03.2020. Annexed hereto and marked as Annexure R I is a copy of the said notice.
8. It is respectfully submitted that thereafter, nationwide lockdown was implemented and the office of the Learned Charity Commissioner sent another notice dated 18.06.2020 making it returnable on 29.06.2020. Annexed hereto and marked as Annexure R II is a copy of the notice dated 18.06.2020.
9. It is respectfully submitted that the opponent no. 3 herein filed reply to the said application on 29.06.2020. Annexed hereto and marked as Annexure R III is a copy of the reply to the said application.
10. It is respectfully submitted that the Learned Charity Commissioner passed a order dated 29.06.2020 wherein it is observed that the amount of donation to Shri Maninagar Swaminarayan Gadi Sansthan Shreeji Sankalp Murty Aadhya Acharyaparavar Dharamdhurandar 1008 Shree Muktajivan Swamibapa Survaranajayanti Mahotsav Smarak Trust. The entire proceeding was treated as the alienation of the trust property by way of gift and that amount of Rs. 7,51,00,000 was not an amount of sale consideration. The gift amount of Rs. 7,51,00,000 has already given back by the Ramji mandir to Shri Maninagar Swaminarayan Gadi Sansthan Shreeji Sankalp Page 7 of 9 Downloaded on : Sun Feb 28 05:16:25 IST 2021 C/SCA/18070/2019 IA ORDER Murty Aadhya Acharyapravar Dharmdhurandhar 1008 and that is not in dispute between the parties.
11. It is respectfully submitted that the applicant herein filed one application dated 23.12.2019 and the order was passed by the Learned Charity Commissioner on 24.12.2019 stating that since this was a gift transaction Board of Trustees are at liberty to take appropriate decision to refund the donation amount. Annexed hereto and marked as Annexure R IV is a copy of the order dated 24.12.2019.
12. It is respectfully submitted that the applicant herein again preferred a application bearing application No. 36/Misc/6/2020 on 10.01.2020. Pursuant to the said application the Learned Charity Commissioner vide order dated 19.02.2020 ordered that the aggrieved party is at liberty to avail the necessary remedy before the appropriate forum. Annexed hereto and marked as Annexure R V is a copy of the order dated 19.02.2020. It is submitted that both the above orders have attained finality.
13. It is respectfully submitted that looking to the above facts and circumstances the present petition is devoid of any merits and is required to be dismissed in limine."
6. The aforesaid averments of the Charity Commissioner made on oath are in total disregard to the direction given by this Court to pass appropriate order to refund the amount of Rs.7,51,00,000/ with interest accrued thereon. The Charity Commissioner has tried to explain that the amount deposited by the applicant was for donation and therefore, once it is given back, the applicant is not entitled to any interest accrued thereon.
7. Learned advocate Ms. Vyas has relied upon the affidavitinreply filed on behalf of the respondent Page 8 of 9 Downloaded on : Sun Feb 28 05:16:25 IST 2021 C/SCA/18070/2019 IA ORDER no.2, which is as per what is stated by the Charity Commissioner in his reply and also stated that the amount of interest utilized by the Trust pursuant to the interim order passed by the Charity Commissioner.
8. Considering the aforesaid facts and circumstances, the order dated 17th December, 2019 is hereby modified to the effect that the applicant - petitioner Trust is entitled to the interest accrued on the amount of Rs.7,51,00,000/ from the date of the deposit till the date of its refund by the respondent no.1 - Trust. The amount of accrued interest, which is quantified by the applicant amounting to Rs.61,53,000/ is hereby ordered to be paid by the respondent no.2 - Trust to the applicant within the period of four weeks from the date of receipt of this order.
9. With the aforesaid modification and clarification, this application is disposed of.
(BHARGAV D. KARIA, J) AMAR RATHOD/PRADHYUMAN Page 9 of 9 Downloaded on : Sun Feb 28 05:16:25 IST 2021