Gujarat High Court
Laljibhai vs Trust on 26 February, 2010
Author: Bhagwati Prasad
Bench: Bhagwati Prasad
Gujarat High Court Case Information System
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MCA/3154/2009 13/ 13 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION - FOR ORDERS No. 3154 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
=========================================================
LALJIBHAI
BHIKHABHAI DHADUK & 2 - Applicant(s)
Versus
TRUST
OF THE TEMPLE OF SHREE LAXMINARAYAN DEV TEMPLE & 10 - Opponent(s)
=========================================================
Appearance
:
MR.
NIRUPAM D. NANAVATI, LD. SR. ADVOCATE ASSISTED BY MR. B.M. MANGUKIYA
for
the Applicants
NOTICE SERVED BY DS for Opponent(s) : 1,
MR
S.N. SHELAT, LD. SR. ADVOCATE ASSISTED BY MR. C.B. UPADHYAYA for
Opponent(s) : 2 - 3.
MR S.N. SHELAT, LD. SR. ADVOCTE ASSISTED BY
MR. MRUGEN K PUROHIT for Opponent(s) : 4, 6,8 - 11.
MR. P.M.
THAKKER, LD. SR. ADVOCATE ASSISTED BY MR. ASHISH H SHAH for
Opponent(s) : 5,
MR. PRASHANT G. DESAI, SR. ADV. WITH MR. UTPAL A
JOSHI for Opponent(s) :
7,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 26th /02/2010
CAV
ORDER
(Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present Civil Miscellaneous Application has been filed by the applicants in Letters Patent Appeal No. 183 of 1973 whereby this Court had formulated a Scheme pursuant to the proceedings undertaken under the provisions of the Bombay Public Trust Act, 1950 (hereinafter referred to as "the Act") pertaining to temple of Shri Laxminarayan Dev. Temple at Vadtal and subordinate thereto. The case of the applicants is that Clause 47 of the Final Scheme by this Court reads as under:
"Cl.
47 - Any two members of the Board, the Acharya or any, two Satsangis, two Tyagis or the Charity Commissioner shall be entitled to apply to the High Court of Gujarat for directions and/or modification, alteration or verification of the Scheme"
2. Thus the applicants being one of the categories of the persons mentioned in this Clause who can ask for modification, alteration or verification of the Scheme, have applied to this Court for the following relief:
"(A) This Court may be pleased to direct to amend the Scheme as provided in paragraph No. 27 above Amendment made as per order passed by this Court dated February 11, 2010:
(AA) Be pleased to direct that the election process be conducted from the stage of preparation of list of voters by independent persons so appointed by this Court, may be a retired Judge of this Court;
(BB) Be pleased to direct that no election process will commence further and no step in furtherance of deciding and/or determining objections received by the respondents be stayed till further orders.
(B) Pending admission and final disposal of this application be pleased to direct that the next ensuing election of the Board of Managing Trustees of the Trust be held and conducted by an officer of this Court who shall not be below the rank of Dy. Registrar and the said Election shall be conducted following general guidelines issued by the Election Commission of India for holding of the legislative and parliamentary elections.
(C) Be pleased to grant such other and further reliefs as may be deemed fit in the facts and circumstances of the case."
3. The major plea of the applicants is that the Scheme be amended. The case of the applicants is that when the Scheme makes a provision for amendment then it is for this Court only that amendment has to be granted pursuant to the Scheme sanctioned by this Act . In this regard Section 50 of the Act is reproduced as under:
"Sec.
50 - Suits relating to public trusts - In any case -
(i) Where it is alleged that there is a branch of a public trust,
(ii) Where a direction is required to recover possession of a property belonging to a public trust or the proceeds thereof or for an account of such property or proceeds from any person including a person holding adversely to the public trust, or
(iii) Where the direction of the Court is deemed necessary for the administration of any public trust, the Charity Commissioner after making such enquiry as he thinks necessary or two or more persons having an interest in the trust and having obtained the consent in writing of the Charity commissioner as provided in Section 51 may institute a suit whether contentions or not in the Court within the local limits of whose jurisdiction the whole or part of the subject matter of the trust is situate, to obtain a decree for any of the following relief:-
(a) an order for the recovery of the possession of such property or proceeds thereof,
(b) the removal of any trustee or manager,
(c) the appointment of a new trustee or manager, (cc) vesting any property in a trustee,
(d) a direction for taking accounts and making certain inquiries,
(e) a declaration as to what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust,
(f) a direction authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged,
(g) the settlement of a scheme or variations or alterations in a scheme already settled, or
(h) granting such further or other relief as the nature of the case may require:
Provided that no suit claiming any of the reliefs specified in this Section shall be instituted in respect of any public trust except in conformity with the provisions thereof:
Provided further that the Charity Commissioner may, instead of instituting a suit, make an application to the Court for a variation or alteration in a scheme already settled."
4. The aforesaid provision of the Act in Clause (g) makes a provision that the Scheme can be amended in the manner provided in the Act. Such statutory provisions will have no bearing when the Scheme as sanctioned by the decree of this Court provides for moving this Court than any other mode getting the Scheme amended stands excluded. According to learned counsel, the provisions of Clause 47 of the Scheme and Section 50 of the Act will have to be read harmoniously to stand together and there is no conflict in these two provisions.
5. Per contra, learned counsel for the respondents submitted that as and when there is a conflict in between the orders of the Court and that of a statutory provision then it is settled law that the statute will override the orders of the Court. In this regard reliance was placed by the learned counsel for the respondents in a case decided by this Court in the matter of YASINMIAN AMIRMIAN VS. I.A. SHAIKH reported in 18 GLR 54. A Division Bench of this Court has held in paragraph No. 17 of the judgement as under:
"We may observe that what Sec. 50 has done is to provide to the persons interested in a public trust the same remedy which the scheme in question provided to him except to the extent that the person who seeks relief in respect of a public trust shall have to route his litigation through the Charity Commissioner instead of instituting it directly in a Civil Court. That, in our opinion, does not destroy his remedy. All that is sought to be introduced by the legislature is to route the litigation relating to public charities through the Charity Commissioner who is the custodian of all public charities and to streamline it. The introduction of this check makes a wholesome and salutary provision of saving the funds of charity from being squandered away in fruitless litigations. In case of every genuine litigation there will be no difficulty whatsoever in vindicating the grievance which the person interested in a public trust make because in every such case the Charity Commissioner will certainly give his consent to institute a suit. If he erroneously or wrongly refuses to give his consent, there is always an appellate remedy available to the aggrieved person. He can appeal to the Gujarat Revenue Tribunal against the order of the Charity Commissioner refusing his consent to him to institute the suit. To uphold the argument raised by Mr. Shah is to defeat the object and purpose of the Bombay Public Trust Act, 1950. If we uphold that argument, it will mean that in cases of all public trusts in which schemes were settled before the Bombay Public Trusts Act, 1950 came into force, the Charity Commissioner will have no control over the litigation whatsoever. The result will, therefore, be that all such public trusts will be placed beyond the control of the Charity Commissioner in so far as litigation relating to them is concerned. The second unwholesome result which it will produce is to destroy in relation to them the effect of sub-sec. (40 of Sec. 51 which imparts to the decision of the Charity Commissioner recorded under sub-sec. (1) of Sec. 51 the character of finality and conclusiveness. We cannot construe a statute or take a view which defeats its provisions in relation to a part of the subject matter with it deals. We are, therefore, unable to hold that the right which was conferred by the schemes in question on the persons interested in the public trusts under the relevant clauses in the scheme settled in suits instituted under Sec. 92 of the Code of Civil Procedure remains absolutely unaffected by the provisions of Sec. 50 read with Sec. 52 and 80 of the Bombay Public Trusts Act, 1950. In our opinion, therefore, the learned Single Judge was with respect in error in taking the view that the original proceedings out of which the Letters Patent Appeal has arisen were maintainable and could be tried on merits. Similarly also the learned Extra Assistant Judge was in error in holding that the original proceedings out of which the Civil Revision Application arises were, in absence of the consent of the Charity Commissioner, maintainable. "
6. Learned counsel for the respondents has further relied on the judgement in the matter of JAI RANCHHOD BHOGILAL SEVAK AND OTHERS VS. (SHRI) THAKORLAL PRANJIVANDAS JUMKHAWALA AND OTHERS reported in 1984 GLH 1134 in which this Court has held at paragraph No. 12 as follows:
"........
The Division Bench was concerned with the questions of removal of a trustee and modification of the scheme and on those two questions the Division Bench is right in holding that provisions of Section 50 got attracted."
7. Thus learned counsel for the respondents has urged that in the matter of modification of the Scheme, provisions of Section 50 are attracted. Learned counsel has further placed reliance on the decision of the Hon'ble Supreme Court in the matter of PREM CHAND VS. EXCISE COMMISSIONER U.P. reported in AIR 1963 SC 996 in which at paragraph No. 12 it is held as under:
"The powers of this Court are no doubt very wide and they are intended to be and will always be exercised in the interest of justice. But that is not to say that an order can be made by this Court which is inconsistent with the fundamental rights guaranteed by Part III of the Constitution. An order which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws."
8. Learned counsel for the respondents has further relied on the decision of the Hon'ble Supreme Court in the matter of SUPREME COURT BAR ASSOCIATION VS. UNION OF INDIA reported in AIR 1998 SC 1895. In this case the Hon'ble Supreme Court has held to the same effect as PREM CHAND VS. EXCISE COMMISSIONER, U.P. (supra) case. Learned counsel has also relied on the decision of the Hon'ble Supreme Court in the case of A.R. ANTULAY VS. R.S. NAYAK reported in AIR 1988 SC 1531 where also the Hon'ble Supreme Court has held to the same effect as PREM CHAND VS. EXCISE COMMISSIONER, U.P. (supra) case.
9. We have heard learned counsel for the parties and have given our thoughtful consideration. To appreciate the question as to when a statute gives jurisdiction to the Court can such jurisdiction be taken away by any Court may be a superior jurisdiction or by passing a decree? If a reference is made to the Craiies on Statute Law 7th Edition, page 266 wherein this is oberved:
"As a general rule, statutes which enable persons to take legal proceedings under certain specified circumstances must be accurately obeyed notwithstanding the fact that their provisions may be expressed in merely affirmative language. Thus, under Section 2 of the Summary Jurisdiction Act, 1857, after the hearing by a justice of the peace of any summary information, either party could, if dissatisfied ..... apply in writing within three days .... to the said justice to state and sign a case setting forth the facts. In Edwards V. Roberts (1891) 1 Q.B. 301 the appellant neglected to get the case stated within the three days prescribed, and it was held, in consequence, that the Court had no jurisdiction to hear the appeal. This rule may also be expressed thus
- that when a statute confers jurisdiction upon a tribunal of limited authority and statutory origin, the conditions and qualifications annexed to the grant must be strictly complied with. It has frequently been decided, even on Acts by which the writ of certiorari is taken away, that no justice of the peace can increase his limited jurisdiction by finding facts which do not exist."
10. The principles of statutory interpretation as enunciated hereinabove are in conformity with the law laid down by the Hon'ble Supreme Court. The powers of the Court are circumscribed by the principle that any order passed by it cannot be inconsistent with the subsisting provisions of the statutory law. In Clause 47 while the Scheme was sanctioned by this Court it ordered that for any amendment in the Scheme, concerned parties will be at liberty to approach this Court but we see that in Section 50 Clause (g) of the Act a clear provision is made for variation or alteration of a Scheme which is already settled. Clause 47 is part of a settled Scheme. Before any amendment is sought in this Scheme, effect is requried to be given to the provisions made in Section 50 of the Act and the course as provided in this Section has to be adopted. This Section requires that any Suit in this regard has to be instituted in a Court within the local limits of the jurisdiction - the matter of trust is situated with the permission of the Charity Commissioner for variation or alteration in the Scheme already settled. In view of expressed provisions of Section 50 of the Act it can safely be concluded that in view of the statutory providence, the course adopted by the applicants to move a Miscellaneous Application before this Court with the allegations of bias against the trustees in the matter of conduct of election, exercise of jurisdiction by this Court would not be a proper course more particularly in light of the findings of the Division Bench of this Court in the matter of YASINMIAN AMIRMIAN VS. I.A. SHAIKH (supra) wherein this Court has held that Clause of the Scheme cannot be given superior legislative status to the sanctioned Scheme overriding the provisions of Section 50 of the Act. It is no doubt true that the Court of superior jurisdiction has settled the Scheme in the instant case but that by itself would not be sufficient to hold that any application in the face of Section 50 of the Act can be maintained. The remedy has to be reshaped in light of the provisions of Section 50 of the Act.
11. In view of the aforesaid, we are of the considered view that the application, though is in terms of Clause 47 of the settled Scheme but such settled Scheme can only be amended according to the statutory provisions as contained in Section 50 of the Act. In any case the allegation of bias will be required to be established by leading evidence and that cannot be the scope of Miscellaneous Application before this Court because the question of fact cannot be gone into in Miscellaneous Application and before arriving at the findings of bias an exercise of scrutiny of evidence would be required which is beyond the scope of Miscellaneous Application. In that view of the matter the Miscellaneous Application appears to be misconceived remedy.
12. In view of the aforesaid, this is to be seen that if we examine the prayers in the application prayer (A) is asking for amendment of the Scheme in the background that there is an allegation of bias against the members of the Board of Managing Trustees. The fact of bias can only be examined by leading evidence. It simply cannot be decided on an application or affidavit. In that background extending the scope of this application in a proceeding which requires leading of evidence and examining the evidence would be a procedure akin to try a Suit in the High Court which appears to be a proposition which is unjustifiable. As regards prayers (AA), (BB) and (B), holding of election in a manner which is not in consonance with the already settled procedure for election appears to be a misplaced prayer because election is not a common law right. It is a right flowing from statutory provisions and the statutory provisions, without being lawfully altered, cannot be, by an interlocutory order, made to hold elections. Because such an election would be in accordance with the provisions which are not the statutory provisions under which an election can be held and therefore such election would not be proper election because right to get elected is a right which is conferred under a statute. In that view of the matter, granting of the aforesaid prayers is also a proposition which appears to be not justifiable. In that view of the matter, we hold that this application cannot be entertained and the same is accordingly dismissed.
(BHAGWATI PRASAD, J) (BANKIM N. MEHTA, J) (pkn) Top