Chand Shah Raheman Shah vs Pavan Shamsundar Sharma And Others on 1 February, 2019

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Bombay High Court

Chand Shah Raheman Shah vs Pavan Shamsundar Sharma And Others on 1 February, 2019

By this Writ Petition, the petitioner has challenged order dated 15-07-2016, passed by the Assistant Charity Commissioner, whereby respondent no.1 has been granted permission to institute a Civil Suit against the petitioner and the other non-applicants before the aforesaid authority. The respondent no.1 had moved an application under Section 51 of the Maharashtra Public Trusts Act, 1951 [for short, 'the aforesaid Act'], for permission to file Civil Suit, claiming that he belongs to a particular community and he was beneficiary of a trust called Shri Laxmibai Laxminarayan Bhatra Dharamshala Trust, Telhara. It was claimed that since the petitioner had been illegally put in possession of the land belonging to the said trust, of which the respondent no.1 was a beneficiary, he was entitled to grant permission to file Civil Suit against the petitioner and the other non-applicant i.e. the alleged sole surviving trustee of the aforesaid trust before the Assistant Charity Commissioner. By the impugned order, permission as sought by respondent no.1 is granted and aggrieved by the same the petitioner has filed this Writ Petition.

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2. Mr. S.M. Agrawal, learned Counsel appearing for the petitioner, submitted that the impugned order deserves to be set aside, because the Assistant Charity Commissioner had failed to notice that the conditions specified in Section 50 of the aforesaid Act, were not satisfied by application moved by respondent no.1 and further that the requirements of Rule 27 of the Rules framed under the said Act, were also not satisfied. As a result, the application itself was rendered defective. It is further submitted that a perusal of the impugned order would show that enquiry contemplated under Section 51 of the aforesaid Act, was not conducted by the Assistant Charity Commissioner, while granting permission to respondent no.1 to file the Civil Suit.

3. Mr. A.B. Mirza, learned Counsel appearing for respondent no.1, submitted that there were documents on record to show that respondent no.1 along with another person had moved the Assistant Charity Commissioner for framing a scheme in respect of the aforesaid trust and that therefore, he was certainly an interested person, who could seek permission for filing the aforesaid Civil Suit. It was submitted that the petitioner was in possession of the land belonging to the said trust, of which respondent no.1 was beneficiary and that therefore, the impugned order passed by the Assistant Charity Commissioner was justified.

4. Heard Counsel for the parties. In order to examine, whether the impugned order can be sustained, it would be necessary to refer to the relevant portion of Section 50 of the said Act :-

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3 wp 5551.16.odt "Section 50. Suit by or against or relating to public trusts or trustees or others In any case,-

(i) where it is alleged that there is a breach of a public trust, negligence, mis-application or misconduct on the part of a trustee or trustees,

(ii) where a direction or decree is required to recover the possession of or to follow a property belonging or alleged to be belonging to a public trust or the proceeds thereof or for an account of such property or proceeds from a trustee, ex-trustee, alienee, trespasser or any other person including a person holding adversely to the public trust but not a tenant or licensee,

(iii) where the direction of the Court is deemed necessary for the administration of any public trust, or

(iv) for any declaration or injunction in favour of or against a public trust or trustee or trustees or beneficiary thereof, the Charity Commissioner after making such enquiry as he thinks necessary, or two or more persons having an interest in case the suit is under sub-

clauses (i) to (iii), or one or more such persons in case the suit is under sub-clause (iv) having obtained the consent in writing of the Charity Commissioner as provided in section 51 may institute a suit whether contentious 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 reliefs."

5. Section 51 of the said Act provides that the consent of the Charity Commissioner would be necessary to institute a suit of the nature ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 03:24:53 ::: 4 wp 5551.16.odt specified in Section 50 of the aforesaid Act. An application under Section 51 of the aforesaid Act is to be moved in terms of Rule 27 of the Rules framed under the aforesaid Act. The said Rule reads as follows :

"27. Application under section 51 (1) Every application to the Charity Commissioner by persons having a interest for his consent to file a suit of the nature specified in section 50, shall set out concisely the material facts and contain inter alia the following particulars :-

(a) Names, occupation and addresses of the applicants;

(b) Name and description of the trust and its office address;

(c) Number of the trust on the Register of Public Trusts, if registered;

(d) Approximate value of the trust properties;

(e) Approximate annual income of the trust;

(f) Names and addresses of the trustees and managers;

            (g)     Objects of the trust;

            (h)     Nature of the applicant's interest in the trust;

(i) Cause of action and substance of evidence in support of it and nature of the relief sought in the proposes suit;

            (I)     List of documents relied on;




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(k) How the applicants propose to meet the cost of the suit;

(l) Particulars of applications, if any, under section 92 of the Civil Procedure Code, 1908, [or as the case may be, under section 51 of the Act] in regard to the trust made earlier by the applicants or to their knowledge by other persons, and the result thereof.

(2) The application shall, as far as possible, be accompanied by copies of all the relevant documents.

(3) The Charity Commissioner, after hearing the applicants and making such inquiry (if any) as he deems fit, may either summarily dismiss the application or grant the consent applied for :

Provided that no such consent shall be given unless the trustees have been given an opportunity of being heard.

            (4)     [ * * * *]

            (5)    In case the Charity Commissioner grants consent

to the filing of the suit, his consent shall be endorsed on the plaint before the same is filed in court.

(6) There shall be maintained in the office of the Charity Commissioner a register of applications made to the Charity Commissioner under section 51 in the form of Schedule XI hereto."

6. Section 50 of the aforesaid Act, quoted above, specifically provides that when a suit is to be filed relating to a public trust when reliefs specified in the said provision are sought, such an application is to be moved by at least two or more persons having an interest in respect of the reliefs claimed in a suit as specified in Section 50 of the aforesaid Act.

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6 wp 5551.16.odt Section 51 of the aforesaid Act specifically requires that consent of Charity Commissioner has to be obtained for filing a suit under Section 50 of the Act by two or more persons filing such application seeking consent. Apart from this, Rule 27 of the said Rules, quoted above, gives in detail the nature of information that is required to be placed on record in the application to be moved under Section 51 of the aforesaid Act. A perusal of the application filed in the present case on behalf of respondent no.1 shows that the said application has been moved by the said respondent only. Thus, the requirement of Section 50 of the said Act that an application must be moved by two or more persons was not satisfied by the said respondent. Although, the body of the application contains some information, it does not give all the detailed information required under Rule 27 of the Rules. Thus, for the said reasons, the application was clearly defective and it could not have been entertained by the Assistant Charity Commissioner.

7. Yet the Assistant Charity Commissioner not only entertained the said application, but also allowed the same by impugned order dated 15-07-2016. A perusal of the impugned order shows that an enquiry as contemplated under Section 51 read with Section 50 of the aforesaid Act was not conducted and the portion of the impugned order containing the reasons for allowing the application of respondent no.1 does not show that the requirements of Section 50 and 51 of the aforesaid Act stood satisfied. Therefore, it becomes clear that the impugned order is rendered unsustainable and that it deserves to be quashed and set aside.

8. In the light of the above, the Writ Petition is allowed. The impugned order passed by the Assistant Charity Commissioner dated ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 03:24:53 ::: 7 wp 5551.16.odt 15-07-2016, is quashed and set aside. Needless to say, any persons satisfying the requirement of Sections 50 and 51 of the aforesaid Act read with Rule 27 of the said Rules can move an application to seek consent of the Charity Commissioner to file a Civil Suit as contemplated under Section 50 of the aforesaid Act. Such an application, if moved by any persons shall be decided by the Assistant Charity Commissioner in accordance with law.

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Bombay High Court