Gujarat High Court
Zainulabudin Riazhusen Saiyed vs Nanjikaka Guru Karshankaka (De Facto ... on 24 January, 2020
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/13309/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13309 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 13313 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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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 ?
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ZAINULABUDIN RIAZHUSEN SAIYED
Versus
NANJIKAKA GURU KARSHANKAKA (DE FACTO TRUSTEE)
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Appearance:
LEARNED SENIOR ADVOCATE MR. SHALIN MEHTA for MS MAMTA R VYAS(994) for the
Petitioner(s) No. 1
DECEASED LITIGANT(100) for the Respondent(s) No. 1
LEARNED SENIOR ADVOCATE MR. P.K. JANI with MR AKASH R. PATEL for the
Respondent(s) No. 10,9
LEARNED SENIOR ADVOCATE MR.S.N. SHELAT for MR SK PATEL(654) for the
Respondent(s) No. 2,3,4,5,6,7,8
NOTICE SERVED BY DS(5) for the Respondent(s) No. 11
LEARNED SENIOR ADVOCATE MR. ANSHIN DESAI for VAIBHAV V GOSWAMY(9019) for
the Respondent(s) No. 12
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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 10, 15 and 24/01/2020
COMMON ORAL JUDGMENT
1. These petitions are arising out of the two orders, one being Miscellaneous Application No.19 of 2019 and another being Miscellaneous Page 1 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT Application No.23 of 2019 disposed of by the Joint Charity Commissioner, Ahmedabad vide orders dated 06.07.2019.
2. Since the issues raised in the captioned petitions are the same, those were heard analogously and are being disposed of by this common judgment and order.
3. The brief facts giving rise to these petitions are summarized as under :
(i) The petitioners are trustee of the Trust viz. "The Imamsha Bava, Roja Sanstha Committee"
(for short "the Trust"). The Trust was formed by an order dated 21.05.1939 passed in Civil Suit No.168 of 1931 by framing the scheme of administration. The composition of the Committee as provided in the scheme is that the Committee shall consist of 11 members out of which one will be "Gadiwala Kakasaheb", three elected Saiyeds by the Saiyed Constituencies and seven elected Satpanths from the seven Constituencies of Satpanths.
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C/SCA/13309/2019 JUDGMENT
(ii) It is the case of the petitioners that in 2002, due to demise of the erstwhile Gadiwalakaka, the Original-respondent No.1 Nanjikaka and one late Shri Pachhankaka staked their claim to be Gadiwalakaka. Change reports were filed by both late Shri Nanjikaka and late Shri Pachhankaka before the Office of Deputy Charity Commissioner. The Change Report No.1002 of 2002 was filed by one Patel Bhimjibhai Karshanbhai for original-respondent No.1 to be Gadiwalakaka and the Change Report No.1013 of 2002 was filed by one Saiyed Nuruddin Badamiya for late Pachhankaka to be Gadiwalakaka.
(iii) The Deputy Charity Commissioner by an order dated 3rd March 2006, rejected the Change Report No.1013 of 2002 for late Pachhankaka to be Gadiwalakaka and by an order dated 3rd June 2006, allowed the Change Report No.1002 of 2002 for original respondent No.1 for late Nanjikaka.
(iv) The Deputy Charity Commissioner, allowed the change Report No.1002 of 2002 by ordering to Page 3 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT delete the name of late Karshankaka as Gadiwalakaka and by including the name of original-respondent No.1- late Nanjikaka as de facto Trustee in the Public Trust Register (for short 'PTR'). The Deputy Charity Commissioner further issued direction to the trustees of the Trust to hold election in a democratic manner and to appoint Gadiwalakaka from the Petakakas as per procedure laid down in the Trust Deed within 90 days from the date of order and to submit the change report after 90 days. It was further ordered that if such procedure is not followed then after 90 days name of the de facto trustee would be deleted from the PTR.
(v) One Bhimjibhai Karshanbhai Patel filed an Appeal No.20 of 2006, challenging the aforesaid order passed by the Deputy Charity Commissioner before the Charity Commissioner. The Charity Commissioner by order dated 30th January 2010, rejected the appeal and confirmed the order passed by the Deputy Charity Commissioner. Page 4 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020
C/SCA/13309/2019 JUDGMENT (vi) The order of the Charity Commissioner was
again challenged by Bhimjibhai Karshanbhai Patel by filing Civil Misc. Application No.24 of 2010 before the District Court. The District Court vide order dated 26th February 2019 rejected the Civil Misc. Application No. 24 of 2010 under Section 72 of the Bombay Public Trust Act, 1950 (hereinafter referred to as the " the Act"), confirming the order passed by the Deputy Charity Commissioner as well as the Charity Commissioner.
(vii) It is the case of the petitioners that a meeting was called on 3rd March 2019, wherein one of the agenda item was to accept the order passed by the District Court and another was to appoint original-respondent No.1 as Gadiwalakaka.
Thereafter, by a notice dated 7th March 2019 agenda was issued seeking approval of the Resolution No.11 passed by Committee members by which the respondent No.1 was sought to be appointed as Gadiwalakaka and the meeting was convened on 12th March 2019. However, the petitioners as well as the respondent Nos.9 and Page 5 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT 11 lodged their protest in the meeting and therefore, the meeting was adjourned to 19th March 2019.
(viii) It is the case of the petitioners that since the original-respondent No.1 and respondent Nos.2 to 8 were proceeding further to appoint respondent No.1 late Nanjikaka as "Gadiwalakaka" and as the entire proceedings were in violation of the bye-laws of the Trust, Misc. Application No.19 of 2019 was filed by the petitioners on 18th March 2019 before the Joint Charity Commissioner under Section 41 A of the Act with a request that the meeting called on 19th March 2019 may be quashed and set aside. It was further requested that for the appointment of "Gadiwalakaka", independent Election Officer and Election Examiner may be appointed so that election may be held independently as per the bye-laws of the Trust. It was also requested that respondent No.1 may be restrained from holding the post of Gadiwalakaka as he was only de facto Trustee. Page 6 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020
C/SCA/13309/2019 JUDGMENT
(ix) The petitioners also filed an application for stay wherein the Charity Commissioner by order dated 18.03.2019 granted interim relief to the effect that resolution appointing the "Gadiwalakaka" in the meeting dated 19th March 2019 may not be effected during pendency of the proceedings.
(x) It is the case of the petitioners that in spite of the aforesaid orders being served, the respondent Nos.1 to 8 in violation of the order, passed resolution appointing respondent No.1 as "Gadiwalakaka" and was also circulated it by Whatsapp messages to all the Committee members as well as the Trustees. The petitioners, therefore filed an application below Exh.8 on 10th April 2019 for taking action under the provisions of Contempt of Courts Act before the Charity Commissioner.
The main grievance of the petitioners raised before the Charity Commissioner in the application filed under Section 41A of the Act was that the original-respondent No.1 could not Page 7 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT have been appointed as "Gadiwalakaka" as he was not fulfilling the criteria of "Petakaka". As per the provisions of Trust deed, the "Gadiwalakaka" can be appointed only from amongst "Petakaka" and therefore, since, he was not fulfilling the criteria, his appointment would be bad in law. It was further pointed out that the procedure, which was followed for appointment of respondent No.1 was in the violation of the by- laws of the Trust as the election of "Petakaka" can be held amongst Satpanths and Saiyad Haqkdars, which are more than 1000 and who can elect the "Petakaka" and therefore, the appointment of Nanjikaka was in violation of bye- laws of the Trust. It was further contended that respondent No.1 to 8 have illegally tried to comply with the order of the Deputy Charity Commissioner and Charity Commissioner as well as the District Court.
(xi) Thereafter, Bhimjibhai Karshanbhai Patel filed First Appeal No.1505 of 2019 before this Page 8 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT Court challenging the order dated 26th February 2019 passed by the District Court. The said First Appeal was withdrawn on 29th April 2019.
(xii) It appears that thereafter, the petitioners filed an application below Exh.15, which is numbered as Misc. Application No.23 of 2019 and challenged the Notification/Resolution dated 19th March 2019 with a prayer to hold that such resolution passed by the respondent Nos.2 to 8 was bad in law and illegal.
(xiii) The Charity Commissioner by order dated 06th July 2019 rejected both the Misc. Application No.19 of 2019 and also vacated the interim order passed below Exh.4 on 18th March 2019 as well as the Misc. Application No.23 of 2019. The petitioners therefore, have preferred both these petitions challenging the orders passed by the Charity Commissioner.
(xiv) As the respondent No.5 has filed a caveat, the learned advocate Mr. S.K. Patel Page 9 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT
appeared on behalf of respondent No.5. A formal notice to all other respondents was issued vide order dated 20th November 2019, though the petitions were filed in May, 2019. At that point of time, it was pointed out that respondent No.1 has expired on 30th October 2019 and accordingly, it was ordered to delete the name of respondent No.1 from the proceedings.
(xv) It appears that thereafter, the petitions were amended by moving a draft amendment to place on record subsequent events which took place during pendency of these petitions. (xvi) The Affidavit-in-reply was filed on behalf of the respondents. Affidavit-in-rejoinder and sur-rejoinder were also filed. Additional affidavit of the petitioners was filed pointing out subsequent development pending the petition. The petitioners also filed an affidavit in sur- sur-rejoinder in reply to additional affidavit. The respondent No.5 also filed an affidavit-in-
reply. The respondent Nos.9 and 10 were joined Page 10 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT
as they staked their claim to be appointed as Gadiwalakaka and they also submitted affidavit- in-reply, wherein subsequent events after filing of the petitions are described.
4. Learned senior advocate Mr.Shalin Mehta appearing on behalf of the petitioners submitted that due to death of original-respondent No.1 viz. Nanjikaka, the petition has not become infructuous as respondents have failed to carry out the direction issued by the Deputy Charity Commissioner to conduct the election for appointment of Gadiwalakaka from the Petakakas in a democratic manner. The learned senior counsel, Mr. Mehta, therefore submitted that the petitions would survive for compliance of the order passed by the Deputy Charity Commissioner, which has achieved finality as the same is confirmed by the Charity Commissioner as well as the District Court and the First Appeal filed before this Court is already withdrawn.
4.1. It was submitted that the Charity Page 11 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT
Commissioner has rejected the application filed by the petitioners under Section 41 A of the Act without considering the factual aspects to the effect that admittedly, the election as directed by the Deputy Charity Commissioner was never held. It was submitted that the Charity Commissioner has wrongly come to the conclusion that dispute with regard to the appointment of Gadiwalakaka requires evidence.
4.2. The learned senior advocate further relied upon the bye-law No.6 of the Trust deed/scheme of the administration and submitted that the clause No.6 provides that if the Gadiwalakaka dies or cease to hold the office, the committee shall call joint meeting of the Saiyad Hakdar and of the Satpanthies at Pirana for which at least 15 days notice shall be given to various constituencies but the joint meeting must be called within two months of the vacancy, and the joint meeting shall elect a person to be the Kaka Saheb's successor as Gadiwalakaka out of the Petakakas. After a person is elected as Page 12 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT Gadiwalakaka, he shall go through the usual ceremonies according to established practice at the hands of the Saiyads.
4.3. It was therefore submitted that the procedure prescribed under Clause 6 of the Trust deed was not followed and accordingly, the Deputy Charity Commissioner directed by disposing of the Change Report No.1002 of 2002 to hold the election for appointment of Gadiwalakaka amongst "Petakakas" in a democratic manner. Such direction was never followed by the respondents and accordingly the respondents should be directed to comply with the direction given by the Deputy Charity Commissioner.
4.4. In support of his arguments, learned senior counsel Mr.Mehta relied upon the decision dated 12.09.2013 of the co-ordinate Bench of this Court rendered in the case of Pavankumar Jain & 5 Vs. Priyavadan Ambalal Patel & 4, passed in SCA No.7662 of 2013 and the order passed by the Division Bench of this Court dated 31.07.2015 in Page 13 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT the case of Pavankumar Jain & 5 Vs. Priyavadan Ambalal Patel & 4, in LPA No.1132 of 2013 in SCA No.7662 of 2013, arising out of aforesaid judgment passed by the learned Single Judge. Relying upon the aforesaid decisions, it was submitted that the while deciding application under section 41A of the Act, the contention that Charity Commissioner can issue directions only in respect of matters falling under Sections 32 to 41 of the Act cannot be accepted. It was therefore, submitted that this Court has categorically held that the Legislature has never intended to confer such narrow powers to the Charity Commissioner. The Charity Commissioner can issue the directions in exercise of powers under Section 41A of the Act with respect to proper administration of a public trust, proper accounting of its income as well as due appropriation and application of the income to the objects and for the purpose of the trust. It was pointed out that this Court has considered the scope of exercise of powers under Section 41A Page 14 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT of the Act by the Charity Commissioner and accordingly the Charity Commissioner ought to have exercise the powers under Section 41A of the Act and could not have rejected the applications filed by the petitioners for the prayers made in the application for issuing direction to the respondents to hold the election in compliance of the order passed by the Deputy Charity Commissioner while disposing of the Change Report No.1002 of 2002, which has achieved finality. It was submitted that the Charity Commissioner ought to have considered that the respondents have committed breach of the order dated 18th March 2019 by which the stay was granted by the Charity Commissioner, but the Charity Commissioner without giving any cogent reason has also dismissed the application for taking action for contempt of such orders. It was further submitted that the Resolution dated 19th March 2019 was also in violation of the order of the Charity Commissioner as well as challenging such resolution definitely come within the purview of Page 15 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT Section 41 A of the Trust Act.
4.5. Learned senior advocate further submitted that adjudication of the application filed by the petitioners under section 41A of the Act, does not require any evidence to be led as held by the Charity Commissioner. The petitioners have only prayed that the order passed by the Deputy Charity Commissioner while disposing of Change Report No.1002 of 2002 be implemented by holding election to elect Gadiwalakaka from the Petakakas as per the bye-laws No.6 of the trust deed/scheme of administration. It was submitted that the Charity Commissioner could not have rejected the application filed by the petitioners by denying to exercise powers conferred upon Charity Commissioner under Section 41A of the Act. It was therefore submitted that this is a fit case, wherein the Charity Commissioner ought to have exercised the powers under Section 41A of the Act.
4.6. With regard to the subsequent development, Page 16 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT it was pointed by the respondents in the affidavit-in-reply as well as the further additional affidavit filed in Special Civil Application No. 13313 of 2009 is concerned, respondent No.9 is not at all eligible to be Gadiwalakaka since he is not Petakaka. It was submitted that only Petakaka can be appointed as Gadiwalakaka. It was submitted that respondent No.9 has not devoted his life by leaving social relations and connections and as he has not undergone the procedure for becoming a Sadhu, he cannot be a Petakaka and therefore he cannot be a Gadiwalakaka. It was further submitted that the entire procedure for appointment of Gadiwalakaka as claimed by the respondents is not performed as per the bye-laws and as per the directions of the Deputy Charity Commissioner. It was therefore submitted that the claim made on behalf of the respondents cannot be entertained and the respondent No.9 or any other person cannot be appointed as Gadiwalakaka and the entire procedure is required to be quashed and set Page 17 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT aside.
5. On the other hand the learned senior advocate Mr. S.N. Shelat assisted by learned advocate Mr. S.K. Patel appearing on behalf of respondent Nos.2 to 8 submitted that the petitions have become infructuous in view of the death of original-respondent No.1-Nanjikaka. He submitted that the Change Report No.1002 of 2002 was filed before the Deputy Charity Commissioner for replacing name of Late Karshankaka as Gadiwalakaka and inserting the name of Nanjikaka as Gadiwalakaka and as Nanjikaka has already expired, the appointment of Gadiwalakaka was at large and the direction given by the Deputy Charity Commissioner in Change Report No.1002 of 2002 for which application was preferred by the petitioners under Section 41A of the Act would not survive in view of subsequent development of appointment of respondent no.9 as Gadiwalakaka by the respondent nos. 2 to 8 and on the other hand appointment of respondent no.10 as Gadiwalakaka by the petitioners and again two change reports Page 18 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT filed under section 22 of the Act are pending for adjudication.
5.1. It was further submitted that there are disputed questions of fact arising in the petition in view of the subsequent developments, which have taken place and therefore, the same cannot be adjudicated by this Court while exercising powers under Articles 226 and 227 of the Constitution of India. It was pointed out that after the death of Nanjikaka, the subsequent developments have taken place by appointing the respondent No.9 as Gadiwalakaka, which is disputed by the petitioners and therefore, there are disputed questions of fact so far as the appointment of Gadiwalakaka is concerned. 5.2. Reference was made to the impugned order, wherein the Charity Commissioner has considered that the appointment of Gadiwalakaka by the Resolution dated 19th March 2019 was a matter of evidence and therefore no direction can be given while exercising powers under Section 41A of the Page 19 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT Act.
5.3. Learned senior advocate, Mr. Shelat further submitted that the Charity Commissioner has rightly not exercised the powers under Section 41A of the Act as the question of appointment of Trustee comes within the purview of Section 22 of the Act and no direction could have been issued under Section 41A of the Act as the said provisions pertain to giving a direction for the purpose of administration of the members and/or for maintaining proper accounts of the trusts. 5.4. It was therefore submitted that the Charity Commissioner has rightly rejected the applications filed by the petitioners under Section 41A of the Act.
5.5. It was submitted that no petition would lie in the facts of the case under Article 227 of the Constitution of India. Reliance was placed on decision of the Supreme Court in case of Syedna Taher Saifuddin Saheb Vs. State of Bombay reported in AIR 1958 SC 253 and more particularly Page 20 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT the Paragraph Nos.6 and 7 of the aforesaid decision, which read as under:
"6. Pending the appeal, the plaintiff died on 11.3.1953, and his daughter applied on 22.5.1953, to be substituted in his place. But eventually she did not press the application, and that was dismissed on 5.10.1953. In this Court by an order dated 21.11.1955, the cause title was amended by deleting the name of the plaintiff. Thus, the only parties who are now before the Court are the defendant and the State of Bombay.
7. The question is whether in the events which have happened, the appeal can proceed. We are of opinion that it cannot. It should be remembered in this connection that no decree had been passed in the suit. Only a finding has been given on a preliminary point, and it is that finding that has been the subject of 1011 appeal to the High Court of Bombay and thereafter to this Court. There are other issues still to be tried, and the action is thus undetermined. Now, the claim with which the plaintiff came to Court was that he was wrongly excommunicated, and that was an action personal to him. On the principle, actio personalis moritur cum persona when he died the suit should abate. As a matter of fact, his legal representative applied to be brought on record, but the application was not pressed. The result is that the suit has abated. This would ordinarily entail the dismissal of this appeal."
5.6. Relying upon the aforesaid paragraphs, it was Page 21 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT submitted that election of trustee of a trust is not the management of the trust and therefore, the Charity Commissioner has rightly not exercised the powers conferred upon him under Section 41A of the Act.
5.7. Reliance was also placed upon the decision rendered in the case of Jaipur Shahar Hindu Vikas Samiti Vs. State of Rajsthan reported in (2014) 5 SCC 530, to point out that the appointment of Gadiwalakaka is not a public duty for which the powers can be exercised by the Charity Commissioner under Section 41A of the Act. It was therefore submitted that the appointment of trustee comes within purview of section 22 of the Act and complete procedure is prescribed under the Act for filing of Change Report and after giving opportunity of hearing to all the concerned persons, adjudication upon such Change Report is to be made by the Competent Authority. It was therefore submitted that this Court cannot go into the question of appointment of Trustee. Page 22 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020
C/SCA/13309/2019 JUDGMENT 5.8. Reliance was also placed on the judgment and order passed by the Division Bench of this court dated 09.01.2015 rendered in the case of Laljibhai Bhikhabhai Dhaduk & 2 Vs. Trust of the Temple of Shree Laxminarayan Dev Temple & 194,in MCA No.3154 of 2009 with CA No.13407 of 2014 and other cognate matters, more particularly on para 36, which reads as under :
"36. The aforesaid shows that even after the election when the change report is submitted if any manipulation has already taken place at the election of creation of artificial majority or artificial minority at the election of one trustee or all the trustees of the Board, the same can be inquired into by the Deputy or Assistant Charity Commissioner, as the case may be, and thereafter only the change report may be accepted or rejected. The consequence would be that the election of a particular trustee or all the trustees may be found invalid, if it is proved that in the inquiry that there was manipulation at the election of the Board. At this stage, we may usefully refer to the decision of this Court in the case of Shantilal Khimchand & Others Vs. Mulchand Dalichand & Ors., reported in 1962 GLR 117, wherein the Division Bench had an occasion to interpret the scope and ambit of Section 22 of the Act and after extracting the provisions of Section 22 of the Act, this Court observed, thus:-Page 23 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020
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10. Under Section 22(1) it is the
trustee who has to report the
occurrence of the change. Under
Section 22(2) the Deputy or
Assistant Charity Commissioner is authorised to hold an inquiry which relates to two matters-(1) verifying the correctness of the entries in the register and (2) ascertaining whether any change has occurred in any of the particulars recorded in the register. Sub-Section 3 of Section 22 requires the officer holding an inquiry to be satisfied that a change has occurred and is enjoined to record a finding with reasons therefor. The fundamental question before him would thus be whether a change has occurred and for that purpose it is obvious that he will have to enquire whether a change has occurred in the constitution of the be easy to manipulate the introduction of foreign elements outside the scope of the trust in the administration of the trust and vest the trust properties in them. To give any other construction or effect to the provisions of Section 22 would create great hardship and produce results not contemplated by the section. If the interpretation sought to be given by Mr. Surti were to be accepted any persons who might choose to pose themselves falsely as persons authorised to appoint trustees and who are really outsiders without any right would be able to interfere and inter-meddle with the affairs of a trust and be able to effect changes of their choice. The change contemplated by Section 22 postulates firstly a Page 24 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT lawful cessation of the old position and secondly thereafter a lawful creation of a new one. If the new state of affairs constituting the change cannot in law change or substitute the old order there is no change at all in fact and such a supposed change cannot be recorded. The change in other words must occur as contemplated above before it is recorded and an inquiry into such an occurrence must include all matters inter-related and closely connected with it and which enable the inquiry officer to come to a conclusion regarding its existence. Moreover the position of a trustee is a position of status and an inquiry into the fact of the appointment is really an inquiry into the fact whether the appointment to hold such a status has been made. The real question in such cases would he whether a change in fact has occurred in the legal status and therefore would fall within the field if inquiry under Section 22 and whenever questions or disputes such as are indicated above arise it would be necessary to inquire into such disputes and to decide them. In the present case the inquiry into the change in the constitution of the trustees must therefore include the question whether the persons who were appointed were in fact appointed as person to hold the status of trustees. Such persons could not be trustees or hold the status of trustees in they were so appointed by persons who had no power to appoint them and an inquiry into the question as was made by the Deputy Charity Commissioner and the Page 25 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT learned District Judge was therefore proper.
37. The above referred statutory provisions read with the relevant case laws show that if in any trust any scheme for administration is in operation, but any action is taken contrary to the scheme or if any action is taken by any or all of the trustees for taking any undue benefit or personal gain at the election by manipulating at the election, safeguards are already provided under the Act and there is also inbuilt mechanism under the Act for not only resolution of such dispute, but also to effect such persons are not accepted as trustees validly elected or removed as trustees and even during the course of election, mechanism has been provided to get the opinion of the Court, which would be normally District Court to finalize the issues for interpretation of any terms of the Scheme and also for appropriate implementation thereof."
5.9. It was therefore submitted that the Charity Commissioner has rightly not exercised the powers under Section 41A of the Act. In the facts of the case, both respondents no.9 and 10 claim to be Petakaka and therefore there is dispute which requires to be adjudicated and such dispute can be adjudicated under Section 22 of the Act. It was also pointed out that pursuant to the appointment of respondent No.9 as Gadiwalakaka, Page 26 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT the Change Report is filed before the Competent Authority, which is pending for adjudication and petitioners can agitate the appointment of respondent No.9 as Gadiwalakaka under Section 22 of the Act. Therefore, no direction or interference is required to be made in the present petitions.
5.10. Reliance was also placed on the decision dated 07.04.2008 of the Division Bench rendered in the case of Swami Bhaktiprasaddasji Guru Murli Manohardasji & 1 vs. P.P. Patel & 4 passed in LPA No.310 of 2008 and allied matters, to submit that merely because there is a delay in deciding the challenge to the election petition to be held under the bye-laws of the trust, no petition can be entertained only because the trust discharges public function.
5.11. It was therefore submitted that any adjudication to be made by this Court in view of the subsequent development after filing of the petition would be an academic exercise and Page 27 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT therefore, both the petitions are required to be rejected.
6. Learned senior advocate Mr.P.K. Jani assisted by learned advocate Mr.Akash R. Patel for the respondent No.9 referred to the affidavit-in- reply and would submit that on death of Nanjikaka, both the petitions have become infructuous as the entire complexion of the matter has changed due to the subsequent development. It was pointed out that the respondent No.9 was appointed as Gadiwalakaka and Change Report No.1898 is also filed on 13.11.2019.
6.1. It was further pointed out that the Change Report No.1859 of 2019 is also filed on 07.11.2019 for appointment of respondent no.10
-Ravjikaka Gurusavjikaka as Gadiwalakaka, which is also pending. It was submitted that both the Change reports are filed under Section 22 of the Act are pending for adjudication before the Deputy Charity Commissioner. It was therefore, Page 28 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT submitted that the question of appointment of Gadiwalakaka is now at large to be adjudicated by the Competent Authority under Section 22 of the Act and all the concerned parties would have an opportunity to make representation either to support or to object such change reports by leading evidence. It was further submitted that any order or observation made by this Court in the present proceedings would affect the adjudication process. It was therefore urged that these petitions should not be entertained in view of the subsequent events after the filing of the petitions.
6.2. Reliance was placed on the decision of the Apex Court rendered in the case of Syedna Mohamed Burhanuddin the 52nd Dai-ul-Multaq and Head of the Dawoodi Bohra Community vs. Charity Commissioner, Gujarat State, Ahmedabad and Ors. reported in 1992 (1) GLH 331 to submit that the Charity Commissioner has rightly refrained on adjudication of dispute with respect to the Page 29 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT election of the trustee to be decided by the Assistant Charity Commissioner under Section 22 of the Act.
6.3. It was further submitted that in case of Acharyashree M. R. B. Mandir Trust and Ors. Vs. C.R. Chandulal and Ors. reported in 1997 (1) GLH 16, similar view is taken by this Court, wherein it is held that the Charity Commissioner has power to order that a trustee not legally terminated as trustee shall continue as a trustee and that a meeting of all the trustees registered in the PTR be called for as interim arrangement to ensure proper administration of the trust.
6.4. Reliance was placed on the decision of Navsari Taluka Halpati vs. Joint Charity Commissioner in Special Civil Application No.16051 of 2003, wherein this Court has held as under :
"Thus, the Charity Commissioner has wide supervisory powers over a public trust to issue any direction of remedial or preventive nature to perform duty in Page 30 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT certain manner or to refrain from performing one or other duty in certain compelling circumstances which calls for interference to secure objects of the public trust by a bonafide and efficient administration. The Charity Commissioner found that both the change reports of five years no. 18 of 1999 and 63 of 1999 are no more. Hence, on the complaint the opponent no. 2 cannot remain active as a member of the Executive or Managing Committee and both the change reports of the Executive Committee have already been dismissed. Therefore, the applicant is no more Joint Secretary. Then on the rejection of the change report no. 18 of 1999, the opponent no. 2 is not the Chairman or Vice Chairman, Secretary or any other post holder. This cannot be accepted that any of these two is holding any post. When the tenure of the Executive Committee is over as per change report nos. 18 of 1999 and 63 of 1999, both the change reports have already been rejected, then in that event, for the administration of the institution and financial interest and donation, an institution run by the trust and so that interest of the institution are not endangered. The Charity Commissioner has full authority under section 41-A of the Act. In view of the facts and circumstances of the present case, there is no post holder and both the reports have already been rejected, it was necessary and in the interest of justice for the Charity Commissioner to give a direction to hold election in a democratic way under the supervision of two officers of office of Charity Commissioner. This power cannot be outside the scope conferred by section 41-A of the Act. The impugned order therefore, does not suffer from Page 31 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT any illegality, impropriety. It is fully justified in the facts and circumstances of the case. Hence, I do not find any good reason calling for interference with the impugned order. Moreover, the learned counsel for the respondent no.2 pointed out that false statements have been made in paras 3.3 and 3.4. of the petition wherein it is mentioned that the change report which was submitted to the Charity Commissioner which is still pending as on the day. From the order itself, it appears that the change reports have already been disposed of and no change report is pending."
6.5. It was pointed out that LPA No.2 of 2004 in SCA No.16051 of 2003 came to be dismissed by the order dated 12.01.2004.
6.6. Reliance was also placed in the case of Devrushnadasji Guru Dharamadsji and Ors. Vs. (The) State of Gujarat and Ors. reported in 2008(1) GLH 427, to submit that Under Section 41A of the Act, the Charity Commissioner has power to issue directions to any trust, trustee or public trust or any property person connected to ensure that such trust is properly administered but it was pointed out that the Charity Commissioner has rightly not issued any directions while Page 32 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT exercising of the powers under Section 41A of the Act for the matters, which requires leading of evidence.
6.7. Reliance was also placed in the case of Gopinathji Dev Mandir Trust vs. State of Gujarat passed in SCA No.11706 of 2012, to buttress his submissions that though the Charity Commissioner can exercise suo moto powers to issue necessary direction as the regulatory authority to produce the record for the purpose of examining about the management of the affairs of the trust but the Charity Commissioner cannot exercise the powers which requires calling of evidence by the party for adjudication of any issue. It was submitted in the facts of the present case, the Charity Commissioner has rightly not exercised the powers under Section 41A of the Act as the same is on the ground that the issue involves leading of evidence. However, it was submitted in view of the subsequent development more particularly when change report is pending for adjudication no Page 33 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT interference is called for in the present petitions while exercising extraordinary powers under Article 226 and 227 of the Constitution of India.
7. Learned senior advocate Mr.Anshin Desai assisted by Mr.Vaibhav v. Goswami for respondent No.10 supported the case of the petitioners. Relying upon the averments made in the affidavit- in-reply filed on behalf of respondent No.10, it was submitted that vide resolution dated 20.07.1986, pursuant to the death of erstwhile Gadiwalakaka namely Savjikaka, Five Petakakas came to be appointed namely 1. Karsankaka Guru Savjikaka 2.Nanjikaka Guru Savjikaka 3. Ravjikaka Guru Savjikaka 4. Kanjikaka Guru Savjikaka 5. Pachhankaka Guru Savjikaka. It was submitted that after the demise of Karsankaka Guru Savjikaka, two change reports were filed before the Deputy Charity Commissioner and by the order dated 3rd July 2006, the Deputy Charity Commissioner allowed change report no.1002 of 2002. It was therefore, pointed out that as per the order of Page 34 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT the Deputy Charity Commissioner, the original respondent No.1 till his death on 30th October 2019 was only acting as a de facto trustee and was not elected by the Committee of trust as per the Trust deed. It was therefore submitted that respondent Nos.2 to 8 could not have appointed respondent No.9 as Gadiwalakaka by passing Resolution on 09.11.2019, which is in violation of the provisions of the Clause No.6 of the trust deed. It was therefore submitted that the petitions are required to be allowed by directing the respondents to hold the election to elect Gadiwalakaka from Petakaka as per the Bye-laws No.6 of the Trust Deed.
7.1. It was submitted that it is not in dispute that as per the resolution dated 20th July 1986, Five Petakakas were in existence and accordingly Gadiwalakaka out of such Petakakas can be appointed. It was therefore submitted that respondent No.9, who is not a Petakaka as per the aforesaid resolution, could not have been appointed as Gadiwalakaka by the respondent Nos.2 Page 35 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT to 8.
7.2. It was further submitted that respondent No.09 could not have been appointed as Gadiwalakaka contrary to the Bye-laws No.6 of the Trust Deed as the Gadiwalakaka has to be unmarried and has to be a celibate. It was further submitted that as respondent No.9 was married at the time when he was appointed as Gadiwalakaka and therefore the said appointment is contrary to the provisions of the Trust deed. 7.3. It was further submitted in para 16 to 19 of the reply of the respondent No.10, which reads as under :
"16. It is also submitted that Ravjikaka Guru Savjikaka is the only surviving petakaka, and therefore ought to have been elected as the Gadiwala Kaka. I state and submit that vide resolution dated 09.11.2019, merely with a view to tarnish the image of Respondent No.10 and to oust him from becoming Gadiwala Kaka, the Respondent No.2 to 9 in connivance have stated that the deponent herein is not interested in the trust Page 36 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT affairs and is irregular and therefore is removed as Petakaka.
17. I State and submit that as per the scheme of the trust, A Gadiwala kaka has to be unmarried and has to be a celibate. It is submitted that the Respondent No.9 herein could not have been appointed as Gadiwala kaka, for the sole reason that he was married in at the time he was appointed to the said post i.e. on 06.04.2019 and therefore the said appointment is illegal.
18. I also state and submit that the deponent herein is very much interest in the trust affairs and is also a regular attended of the committee, in fact, vide an affidavit dated 02.07.2019, the deponent herein has stated that he is ready and willing to contest the election for the post of Gadiwala Kaka and is being pressurized to withdraw the same.
19. I further state and submit that the deponent herein vide an affidavit dated 12.09.2019 has also stated that he was being threatened and assaulted by the Page 37 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT respondent nos.2 to 9 committee members and was not allowed to enter the Darga Premises."
8. Having heard rival submissions canvassed by the learned advocates for the respective parties, the following facts which are not in dispute, emerge from the documents on record :
(i) that the trust deed, which is in existence since 1939 provides for appointment of "Gadiwalakaka" in clause No.6, which reads as under :
"6. If the Gadivala Kaka Siheb dies or ceases to hold the office, the committee shall call a joint meeting of the Saiyad Hakdar and of the Satpanthies at Pirana of which at least 15 days notice shall be given to the various constituencies but the joint meeting must be called within two months of the vacancy, the joint meeting shall elect another to be the Kaka Saheb's successor. He should be elected out of the Petta Kakas.
After he is elected, he shall go through the usual ceremonies according to established practice at the hands of the Saiyads."
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(ii) On death of Gadiwalakaka i.e. Karshankaka in the year 2002, two Change Reports were filed by which the persons claiming to be Gadiwalakaka one on behalf of Shri Nanjikaka and other Shri Pachhankaka being Change Report Nos.1002 of 2002 and 1013 of 2002 respectively.
The Deputy Charity Commissioner by order dated 3rd June 2006, rejected the Change Report No.1013 of 2002 and partly allowed the Change Report No.1002 of 2002 appointing Nanjikaka as a de facto trustee with a direction to conduct the election for appointment of Gadiwalakaka from the Petakakas in a democratic manner.
(iii) It appears from the records that the order passed by the Deputy Charity Commissioner was confirmed by the Charity Commissioner as well as the District Court and the First Appeal filed before this Court was withdrawn. Meaning thereby, the order passed by the Deputy Charity Commissioner in Change Report No.1002 of 2002 has become final.
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(iv) After the District Court rejected the Misc. Application No.24/2010 vide order dated 26th February 2019, the respondent Nos.2 to 8 convened a meeting on 3rd March 2019, wherein one of the agenda items was to accept the order passed by the District Court and another was to appoint original-respondent No.1 viz. Nanjikaka as Gadiwalakaka.
(v) It appears that the notice dated 7th March 2019 agenda was issued, seeking approval of the Resolution No.11 passed by the Committee members by which the respondent No.1 was sought to be appointed as Gadiwalakaka.
(vi) It appears that the petitioners filed Miscellaneous Application no.19 of 2019 under Section 41A of the Trust Act for appropriate direction from the Charity Commissioner for appointment of the independent Election Officer and Election Examiner to hold the election as per the direction of the Deputy Charity Commissioner, which has become final. The Charity Commissioner Page 40 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT granted interim relief vide order dated 18th March 2019 to the effect that any resolution, appointing Gadiwalakaka in the meeting, which was to be convened on 19th March 2019, may not be given effect to. However, in the said meeting, the respondent No.1 - late Nanjikaka was appointed as Gadiwalakaka.
The petitioners, therefore filed an application below Exh.8 for violation of the order dated 18th March 2019 passed by the Charity Commissioner being Contempt of Court. Another application being Misc. Application No. 23 of 2019 was filed under section 41A of the Act against appointment of respondent no.1 as Gadiwalakaka.
(vii) Thereafter, the Charity Commissioner by order dated 6th July 2019 rejected the applications filed by the petitioners on the ground that adjudication of such applications would require leading of evidence by both the sides, and therefore the applications filed by the petitioners would not fall within the purview Page 41 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT of Section 41A of the Trust Act.
(viii) During the pendency of the petition, the respondent No.1-Nanjikaka expired on 30th October 2019. Thereafter, it appears that respondent No.9 was appointed as Gadiwalakaka by the respondent nos. 2 to 6 whereas respondent No.10 was also appointed as Gadiwalakaka by the petitioners and again the same situation as prevailing in the year 2002 has cropped up in the year 2019.
(ix) Two Change Reports are filed being Change Report No.1859 of 2019 is filed on 07.11.2019 with regard to the appointment of respondent No.10 and second Change Report No.1898 of 2019 is filed on 14.11.2019 with regard to the appointment of respondent No.9.
9. In view of the above facts, as on today, two Change reports being Change Report Nos.1859 of 2019 and 1898 of 2019 are pending for adjudication before Deputy Charity Commissioner, Ahmedabad under Section 22 of the Act. Page 42 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020
C/SCA/13309/2019 JUDGMENT Therefore, if any observation is made by this Court on merits of the matter, it would prejudice the adjudication process pending before the Deputy Charity Commissioner.
10. In view of subsequent development having taken place due to demise of respondent no.1 Nanjikaka, the order passed by the Charity Commissioner in Change Report No. 1002 of 2002 entering his name in PTR as de facto trustee "Gadiwala Kakasaheb" is not required to be implemented. Therefore, the applications filed by the petitioner under section 41A of the Act for implementation of order dated 3rd June, 2006 passed by the Deputy Charity Commissioner which has become final are not required to be adjudicated as it would be an academic exercise.
11. In view of the above, there is no need to decide larger issue as to whether the Charity Commissioner has exercised the powers under Section 41A of the Act properly or not in view of the various judgments cited by both the sides. Page 43 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020
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12. I have therefore not gone into legality and propriety of exercise of powers exercised under Section 41A of the Act by the Charity Commissioner while passing the impugned orders.
13. As the Deputy Charity Commissioner is again required to adjudicate upon rival change reports filed on behalf of the respondent Nos.2 to 8 and on behalf of the petitioners, it would be in the interest of justice to direct the Deputy Charity Commissioner to decide both the change reports after giving an opportunity of hearing and to lead evidence in support of their respective change reports and after taking into consideration all the contentions to be raised by both the sides. The said exercise shall be completed as early as possible and preferably within a period of three months from the date of receipt of copy of this order.
14. It is further clarified that the Deputy Charity Commissioner shall decide both the pending change reports afresh denovo without Page 44 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020 C/SCA/13309/2019 JUDGMENT being influenced by the orders passed in earlier litigation between the parties.
15. In view of the above directions, these petitions are disposed of accordingly with no order as to costs. Rule is discharged.
(BHARGAV D. KARIA, J) KUMAR ALOK Page 45 of 45 Downloaded on : Mon Jun 15 06:31:36 IST 2020