Karnataka High Court
Sarvajanik Vachanalaya Mudhol vs B.V.V.Sangha on 10 January, 2014
Author: N.Kumar
Bench: N.Kumar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10 T H DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR.JUSTICE N.KUMAR
WRIT PETI TION NO.60866 of 2010 (GM-RES)
C/w
WRIT PETI TION NOS.65455 & 65456 of 2009(GM-RES)
In W.P.NO.60866 of 2010
BETWEEN
SARVAJANIK VACHANALAYA
MUDHOL
BY ITS PRESIDENT
TAMANNA
S/O PARAPPA BUDHI
AGE 76 YEARS
CHINCHAVADI
K.D.MUDHOL TALUK
BAGALKOT DIST ...PETITIONER
(BY SRI V P KULKARNI, ADVOCATE)
AND
1. B.V.V.SANGHA
BY ITS CHAIRMAN
BAGALKOT-587101
2
2. THE STATE OF KARNATAKA
REP. BY ITS DEPUTY COMMISSIONER
BIJAPUR-587101 ...RESPONDENTS
(BY SRI V R DATAR, ADVOCATE, FOR R1;
SRI ANAND K. NAVALGIMATH, HCGP FOR R2)
THIS WRI T PETI TION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTI TUTION OF INDIA PRAYING
TO DECLARE THE ORDER PASSED ON 12/1/2010 PASSED BY
THE PRINCIPAL CIVIL JUDGE (JR.DN) MUDHOL AT MUDHOL ON
I.A.NO.1 DATED 26/2/1998 IN F.D.P.NO.8/1993 VIDE
ANNEXURE-E.
IN W.P. NOS.65455 & 65456 OF 2009
BETWEEN
SRI BASAVESHWARA VIDYA
VARDAKA SANGHA
REP. BY ITS PRESIDENT & AUTHORISED
REPRESENTATIVE OF THE
GOVERNING COUNCIL
BAGALKOT 587 101 ...PETITIONER
(BY SRI V R DATAR, ADVOCATE)
AND
1. STATE OF KARNATAKA
DEPARTMENT OF WAKF AND MUZARAI
M.S.BUILDING
BANGALORE
2. THE OFFICE OF THE ASST.
CHARITY COMMISSIONER
BELGAUM
3
3. THE DEPUTY COMMISSIONER,
BAGALKOT
REPRESENTED BY STATE OF KARNATAKA
DEPT. OF LIBRARY
4. SARVAJANIKA VACHANALAYA MUDHOL
MUDHOL TALUK & DISTRICT
REPRESENTED BY
SRI.TAMMANNA PARAPPA BUDNI
MUDHOL TALUK & DISTRICT
BEING THE LEGAL REPRESENTATIVE OF
DECEASED JAGANNATH BHIMARAO
TANKASALI
SOLE SURVIVING TRUSTEE
5. SHANKAR
S/O UTTUR
AGE 65 YEAS, OCC:BUSINES
R/O SARVODAYA PUSTAKALAYA
MAIN ROAD
MUDHOL-587303
6. SHRI MOHAN
S/O DESHPANDE
AGE 70 YEAS, OCC:BUSINES
R/O INDIAN PETROL PUMP
NEAR DATTATRAYA TEMPLE
MUDHOL-587313
7. SHRI M.B.TANKASALI
S/O B.TANKASALI
AGE 70 YEAS, OCC:ADVOCATE
R/O NEAR OLD COURT BUILDING
MUDHOL-587313
8. DR.M.G.GALAGALI
S/O G.GALAGALI
AGE 71 YEAS, OCC:DOCTOR
4
R/O NEAR BALAJI TEMPLE
MUDHOL-587313
9. SHRI K.G.DESHPANDE
AGE 71 YEAS,
OCC:RETITED PERSON
R/O RUKMINI COMPLEX
MUDHOL-587313
10. SHRI G.C.CHINIVAL
S/O C.CHINIVAL
AGE 71 YEAS
OCC:AGRIL,
R/O POST UTTUR
MUDHOL-587313
11. SHRI R.G.BAJI
S/O G.BAJI
AGE 84 YEARS
OCC:RETIRED PERSON
R/O WARD NO.10,
MUDHOL-587313
12. SHRI S.G.DIDDI
S/O G.DIDDI
AGE 40 YEARS
OCC:SERVICE
F.D.C. AT KULALI
GOVERMENT HIGH SCHOOL
TQ:MUDHOL-587313 ... RESPONDENTS
(BY ANAND K. NAVALGIMATH, HCGP FOR R1-R3;
SRI V. P.KULKARNI FOR R4 - R8, R10 AND R12;
R9-PETITION DISMISSED;
R11-DELETED)
5
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 & 227 OF THE CONSTI TUTION OF INDIA
PRAYING TO CALL FOR RECORDS ON THE FILE OF THE 3RD
RESPONDENT PERTAINING TO THE SARVAJANIKA
VACHANALAYA, MUDHOL AND ON PERUSAL OF THE SAME BE
PLEASED TO QUASH THE ENTRY MADE BY AN ORDER
NO.432/2003 DATED 19/05/2003 VIDE ANNEXURE-D
WHEREBY THE NAMES OF TAMANNA P.BUDNI AND 8 OTHERS
IS ENTERED IN THE REGISTER OF PUBLIC TRUST PERTAINING
TO SARVAJANIKA VACHANALAYA MUDHOL BY ISSUING WRIT OF
CERTIORARI OR WRIT ORDER OR DIRECTION IN THE NATURE
OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT ORDER OR
DIRECTION UNDER ARTICLE 226 AND 227 OF THE
CONSTITUTION OF INDIA.
THESE PETI TIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE
THE FOLLOWING:
O R D E R
These three proceedings are inter-related as the subject matter of the parties are all one and the same. Therefore, they are clubbed together and taken up for consideration and disposed of by this common order.
2. The subject matter of the proceedings is property bearing Municipal No.246 situated in municipal ward No.1 at Mudhol Municipality bounded on the south by Public road and beyond it, King George High School, West by Municipal lane and beyond it 6 Shahi Masjid, east by Municipal open space and beyond it Dr.Kathawate's house and north by municipal land and beyond it Dr.Kathavate's Dispensary. This was the description given in the year 1966, when the Original Suit No.62/1966 is filed. The averments in the said plaint discloses that the plaintiff in the said suit is a Sarvajanik Vachanalay, Mudhol, a public institution run by the public of Mudhol. The origin of the said institution dates back to the year 1869, when a part of the construction of the building was completed. The public of the Mudhol started a library therein on a modest scale for the benefit of public. It was then known as Native General Library, Mudhol. It continued to bear that name till the year 1929 in which year, this name was changed to Sarvajanik Wachanalaya, Mudhol. The entire building as on the date of suit was owned by the plaintiff. The building was completed in or about the year 1891 and entire expenses were met mainly by the public contribution. The opening ceremony was conducted on 28.03.1981. In the year 1894, the then State Government of Mudhol, which was a princely state requested the Managing Committee of the plaintiff to spare a part of the suit 7 building for conducting some classes of its English School as the State school was found to be insufficient to accommodate the students. Accordingly, the plaintiff agreed to the State's proposal and permitted the State to hold some of the English school classes in a part of the suit building. On or about 01.06.1920, the State Government of Mudhol requested the Managing Committee of the plaintiff to shift the Wachanalaya to the State owned building nearby in which the State was then running Girls' School so that the former Government old English school, which, by then, had developed into the full-pledged High School, which occupied the entire building and house in its high school there. The plaintiff graciously acceded to the request of the State Government and without determining to their proprietary right over the suit building, they shifted Wachanalaya to the State building, in which, Girls' School was being housed till then. This was purely a temporary arrangement by consent, till the Government would own a building shortly thereafter and located its High School there and immediately thereafter to vacate and hand over the possession of suit building to run a public Wachanalaya there. The Mudhol 8 Darbar, however, did not make any attempt for construction of new building for its High School. Thereafter, the State of Mudhol merged and formed the part of the then Bombay State, which is now forms part of Mysore State.
3. The Mudhol High School referred to above, was a Government institution. The said High School was handed over to the Basaveshwara Vidhyavardhaka Sangha, Bagalkot. The said Sangha constructed a new building of its own at Mudhol, to which, the High School located till then in the suit building was shifted. In the year 1965, in spite of handing over the possession of the suit building to the plaintiff, the second defendant located its Girls' High School in the suit building. The reason being the Government transferred the Girls' High School in favour of defendant No.2 along with existing movable and immovable properties including the suit building. The Government had no right over the suit building and therefore they could not have transferred the suit building to the said Sangha. When questioned about this act, the Government issued a show cause notice to the plaintiff to show cause as to why the said building should not be 9 treated as theirs. The reply was sent. When the Government started to assert that the building in the possession of the second defendant is theirs as well as Sangha the plaintiff was constrained to file the suit for possession, future mesne profits etc. The suit was contested. After trial the suit came to be decreed on 17.04.1971. Aggrieved by the said judgment and decree, the Sangha/the second defendant preferred an appeal in R.A.No.37/1971, which also came to be dismissed, after contest on 18.07.1975. The Sangha/ the second defendant in the said suit preferred an appeal to the High Court in R.S.A.No.642/1975, which came to be dismissed on 21.09.1982 for non-prosecution. Subsequently, applications were filed to recall the said order, which also came to be dismissed on 19.03.1994. Thereafter, the plaintiff filed Execution Petition No.6/1994 for execution of the decree on 19.09.1984. As the second appeal was not restored, the second defendant in the said suit preferred a Special Leave Petition before the Hon'ble Supreme Court which also came to be rejected in the year 1995. In order to stall the execution of the decree for possession, O.S.No.42/1996 came to be filed before the Civil Judge 10 (Jr.Dn.), Mudhol by parents of the children studying in the Girls' School seeking a declaration that the decree passed in O.S.No.62/1966 is null and void. They sought for an order of temporary injunction. Temporary injunction was granted. However, subsequently, the suit after contest came to be dismissed. Throughout the plaintiff was represented by one Jagannath Tankasali, the trustee. The sole trustee died on 27.11.1997. After his death, on 28.12.1997, a meeting of all the members was held and one Sri Tammanna S/o. Parappa Budani was unanimously elected as President. In fact, all of them filed an application under Section 47 of the Bombay Public Trust Act, 1950 as amended by the Maharastra Legislature requesting to appoint those persons as trustees. On consideration of the said request, the Charity Commissioner passed an order on 19.05.2003. The said Tammanna as such trustee filed an application - I.A.No.5 in the execution case No.6/1994 to come on record in place of deceased trustee. The judgment debtor, the second defendant in the suit filed his objections contesting the said application. However, the executing court allowed the application by an order 11 dated 29.09.2006. Aggrieved by the said order, the judgment debtor/second defendant in the suit preferred the C.R.P. No.749/2006 before this Court. A similar application was filed in the Final Decree Proceedings, where request made for enquiry under Order 20 Rule 12 for mesne profits came to be dismissed by an order dated 12.01.2010.
4. Aggrieved by the said order, the said trustee has preferred W.P.No.60866/2010 challenging the order of the Charity Commissioner, dated 19.05.2003 and consequent entries made in the register. The second defendant/judgment debtor has preferred Writ Petition Nos.65455 and 65456/2009. Thus, all of these three matters are heard together.
5. Sri V. R. Datar, learned counsel for second defendant/judgment debtor contended that, by resolution dated 27.10.1976 as per Annexure-H, the plaintiff has transferred the entire building with library to the Government and therefore, the trust ceased to have any interest in the property and therefore, question of anybody coming on record to represent trust which has 12 lost interest in the subject matter of the proceedings would not arise. Therefore, the Final Decree Court rightly dismissed the application but executing Court committed an error in allowing the application. The person who has come on record as trustee to represent the trust is claiming status of the trustee by virtue of an order passed by the Charity Commissioner, on 19.05.2003. That day, the Bombay Public Trust Act, 1950 had been repealed with effect from 01.05.2003 and therefore, the said order is void-ab- initio and he could not be recognized as trustee. Secondly he contended, in fact, in the second proceedings an application was filed even before the order of the Commissioner claiming status on the basis of a resolution passed by the governing body immediately after the death of sole surviving trustee as his legal heirs. He further submitted under Section 47 of Bombay Public Trust Act, any person interested in the trust or the Charity Commissioner, could file an application to come on record. Admittedly, no such application is filed to the Court. The application is filed to the Charity Commissioner relying on the amended provisions of Section 47 which amendment is carried out by the Maharashtra 13 State Legislature, which is not applicable to the State of Karnataka. Therefore, he submits that seen from any angle, the trustee, who has now come on record representing the trust either as the legal representative of the sole surviving deceased of trust or as a trustee has no locus-standi to prosecute any of these matters and the said order of the Charity Commissioner is one without authority is liable to be set aside.
6. Per contra, learned counsel appearing for the decree holder/plaintiff contends the title of the schedule property continues with the members. In a portion of the building they were running a library. When the trust was unable to maintain and run the library, they requested the Government to take over the library building, where the library was located. They have not transferred the building owned by the trust. The facts set out above, clearly demonstrates that at the request by the Government to start a Girls' High School, the building was made available to the Government, on the understanding, that when the Government puts up a new building and shift the High School to that place, to hand over the possession. On the State of Mudhol becoming the 14 part of State of Bombay it did not materialize. In the meanwhile, the Government handed over the building to the judgment debtor to run a school. The judgment debtor after putting up a new construction, shifted the High School to that new building but they did not vacate but continued to run Girls' School in that building. In that background, when dispute arose it became necessary for the trust to file suit and they have succeeded in the suit. A decree for possession is passed which has the seal of approval of the Apex Court but still unfortunately by raising technical objections, the judgment debtor is refusing to deliver possession. After the death of sole surviving trustee, the persons who are interested in the trust passed resolution and requested the Charity Commissioner to recognize them as trustees and make necessary entries. But in the meanwhile, the present trustee, who is elected as the President has filed an application to prosecute the execution case. It is in these background, the schedule property continued with the trust, it is not transferred to the Government. When the decree passed in favour of the trust is intact and the beneficiaries of the trust are none other than the public, they are entitled to possession. Under 15 the aforesaid circumstances, the application filed to come on record by a beneficiary in the fist instance, who is now elected as a trustee was competent to come on record and prosecute the execution proceedings. Though the executing Court allowed the application, the Final Decree Court has refused to entertain the said application. The order passed by the Charity Commissioner on 19.05.2003, though on that day, the Bombay Public Trust Act had been repealed, is saved by Section 6 of the Karnataka General Clauses Act as a legal proceedings for such appointment had already been initiated under the old Act. He submits though Karnataka State Legislature has not amended Section 47, the amendment carried out to Section 47 of the amended Act by the Maharashtra State Legislature, as it is not inconsistent with any action of the Karnataka State Legislature is applicable and only on such an understanding, an application is filed to the Charity Commissioner for appointment of trustee and therefore, he submits in the background of this case, an educational institution, which has suffered a decree for possession as far back as 1971 has successfully dodging the decree holder for more than 40 long years 16 by raising these technical pleas. It should not be entertained. They have constructed the building and honorably they should vacate. The decree of the possession has the seal of the approval of the Hon'ble Supreme Court. Under these circumstances, he submits the writ petition and CRP filed by them is liable to be dismissed and the writ petition filed by the trust is liable to be dismissed with exemplary cost.
7. In the light of the aforesaid facts and rival contentions, the point that arise for my consideration is:
"Whether the trustee who is now brought on record in execution case is entitled to prosecute the matters on behalf of the trust?"
8. From the aforesaid material, it is clear that the schedule property is a property belonging to a public trust. Though the law governing public trust in the country is not fortified, Section 92 of the C.P.C. applies. It provides that, in the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the 17 administration of any such trust, the Advocate General or two or more persons having an interest in the trust and having obtained the leave of the Court, may institute a suit whether contentious or not in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject matter of the trust is situate to obtain a decree which are set out in the Section 92 of C.P.C. Order 31 of the C.P.C. provides for suits by or against trustees, executors and administrators. It provides that, in all suits concerning property vested in a trustee, executor or administrator, where the contention is between the persons beneficially interested in such property and a third person, the trustee, executor or administrator shall represent the persons so interested, and it shall not ordinarily be necessary to make them parties to the suit. But the Court may, if it thinks fit, order them or any of them to be made parties.
9. The sole object of these provisions is to protect the interest of the beneficiaries of the trust and the Court has an 18 ample power to pass such orders. The tenor of Rule 1 Order 33 of C.P.C. makes it clear, in a dispute to protect beneficiary's interest in the property a third person or the trustee/executor or administrator shall represent so interested as a rule. But it is also made it clear that it shall not ordinarily be necessary to make them parties to the suit. The Court has been given the discretion to order whether they or any of them to be made as parties. Section 47 of the Bombay Public Trust Act, 1950 speaks about the power of the Court to appoint any trustee of trust, as the case may be. It provides that, any person interested in a public trust may apply to the Charity Commissioner for the appointment of a new trustee, when a trustee of such trust dies. Therefore, the power is conferred on the Court under the said Act to appoint any person interested in the trust as trustee when the trustee dies and hold the property and to protect beneficiary's interest.
10. The said provision has undergone substantial change in the year 1971 when the Maharasthra State Legislature substituted Section 47 to the old Section 47. Under the substituted Section any person interested in a public trust may 19 apply to the Charity Commissioner for the appointment of a new trustee, where there is no trustee for the said trust or the trust cannot be administered until the vacancy is filled, or for the suspension, removal or discharge of a trustee, when trustee of the trust disclaims or dies. The power, which was vested with the Court earlier, now has been conferred on the Charity Commissioner. In the instant case, we are dealing with the right of the trustee to prosecute the legal proceedings, which was validly initiated by the trust. The dispute is between a person who is enjoying the trust property notwithstanding passing of the decree for possession nearly about 40 years back, which has the seal of the approval of the Apex Court. Taking advantage of the fact that the sole surviving trustee died coupled with the fact that the government extending its support the judgment debtor is squatting on the said property by raising objections thus successfully preventing the execution of the decree for possession which is validly passed. Further he is enjoying the property without paying rent or damages. When an application is filed to recover rent fee or damages to avoid the liability the locus standi of the person who 20 has come on record to prosecute the matter on behalf of trust is questioned. Similarly when the Charity Commissioner has passed an order and made necessary entries and they having allowed the same to stand for years now they have preferred the writ petition challenging the said order. Without going to the legal question involved, suffice it to say the plaintiff is a public trust, decree is passed in favour of the public trust. The judgment debtor should not be permitted to squat on the property. Though the sole surviving trustee dies, the trust continues for the benefit of the general public under the scheme of aforesaid Act. Under the provisions of C.P.C. any person interested in the trust can take charge of the trust to protect the same. Therefore, the person who has now come forward to prosecute this matter to protect the interest of the trust has locus standi to prosecute the matter. That should suffice as far as these proceedings are concerned.
11. In that view of the matter, the order passed by the Final Decree Court dismissing the application where his request to come on record has been dismissed is hereby set aside. The 21 application to come on record is allowed. He shall be permitted to prosecute the Final Decree Proceedings.
12. The executing Court rightly allowed the application and therefore, that order is sustained.
13. As far as the order of appointing these trustees by the Charity Commissioner is concerned, the judgment debtor, who is a total stranger, has no locus standi to challenge the same. Therefore, the said writ petition is also dismissed as merit less.
14. The judgment debtor/society after taking over the suit property from the Government is running a school. Admittedly, they have constructed another building where they shifted their High School. Now it is submitted that second defendant is also running a school in the schedule property. Under these circumstances, having regard to the fact that a decree which is passed about 40 years back has been stalled which has the seal of approval of the Apex Court, I deem it proper to impose a cost of Rs.1,00,000/-. However, it is made clear in obedience of the decree passed, if they are ready to hand over the possession of the 22 property within a month from the date of before the academic year commences, their liability to pay this cost of Rs.1,00,000/- by the end of 31.04.2014, is waived.
15. If the possession is not delivered both the executing Court and the final decree Court shall proceed with the matter on day to day basis, on top priority and show to the general public that we have a sound judicial dispensation which can deliver the relief, if they mind by putting the decree holder in possession of the property within a period of two months after re-opening of the Courts after summer vacation of 2014.
SD/-
JUDGE Naa