Punjab-Haryana High Court
Budh Singh Dhahan vs Malkiat Singh And Another on 28 January, 2009
Author: Rajesh Bindal
Bench: Rajesh Bindal
C.R. No. 4507 of 2008 [1]
In the High Court of Punjab & Haryana at Chandigarh
Civil Revision No. 4507 of 2008 (O&M)
Date of decision : January 28, 2009
Budh Singh Dhahan ..... Petitioner
vs
Malkiat Singh and another ..... Respondents
Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Arun Jain, Senior Advocate with Mr. Vishal Goel, Advocate, for the petitioner.
Mr. Arun Palli, Senior Advocate with Mr. Sunil Garg, Advocate for respondent No. 1.
Mr. Alok Jain, Advocate for respondent No. 2.
Mr. Sumeet Goel, Advocate for respondents No. 3 to 10.
Rajesh Bindal J.
The present petition is filed by the President of Guru Nanak Mission Medical & Educational Trust, Dhahan-Kaleran, Tehsil and District Nawanshahr (for short, "the Trust"). The challenge in the petition is to the order dated 12.6.2008 (Annexure P-10), passed by the learned Additional District Judge, Nawanshahr, whereby the application filed by the petitioner for dismissal of the petition filed by respondent no. 1 under Section 7 of the Charitable and Religious Trusts Act, 1920 (for short, "the Charitable Trust Act"), was dismissed. Further challenge is to the separate order of even date (Annexure P-11) passed in the petition filed by respondent no. 1 under section 7 of the Charitable Trust Act seeking a direction to the petitioner to hold meeting of the Trust.
Briefly, the facts are that the petitioner as well as the respondents are the trustees of the Trust. On account of certain disputes amongst the trustees in the functioning of the Trust, respondent no. 1 filed a petition before the Additional District Judge-I, Nawanshahr under Section 7 of the Charitable Trust Act seeking a direction to the petitioner to hold elections of the General Body of the Trust. After receipt of notice, the petitioner filed application for dismissal of the petition under Section 7 of the Charitable Trust Act. However, the learned court below finding the same to be misconceived, dismissed the application filed by the petitioner and on the other hand accepted the petition filed by respondent no. 1 for direction to the petitioner, being President of the Trust, to hold meeting of the General House C.R. No. 4507 of 2008 [2] of the Trust. Both the orders were passed on 12.6.2008 and have been impugned in the present petition.
Learned counsel for the petitioner submitted that a perusal of Section 7 read with Section 2 of the Charitable Trust Act shows that the petition under Section 7 of the Charitable Trust Act could be filed only before the District Judge and the present petition having been filed before Additional District Judge-I, Nawanshahr, was totally incompetent. He further submitted that the Additional District Judge-I was not empowered to further entrust the same to other Additional District Judge as it was to be decided by the District Judge to whom it was entrusted. In the present case, the petition having been further entrusted by the Additional District Judge-I after filing to another Additional District Judge, the impugned orders passed by him are totally without jurisdiction. Further, relying upon (Mirza) Husain Yar Beg v. (Sahu) Radha Kishan and others, AIR 1935 Allahabad 134, it was submitted that the learned court below could not issue any direction finally without affording reasonable opportunity to the parties to lead their evidence and in the present case the impugned order directing the petitioner to hold election of the Trust having been passed without any evidence on record, the same is illegal.
On merits, it was submitted that in fact, the petition filed by respondent no. 1 even on the date it was filed was infructuous as the meetings of the Trust were being held regularly and there was no occasion for respondent no. 1 to have filed petition. In fact, it is a dispute between various trustees on account of which a lot of litigation was going on. On one hand, respondent no. 1 filed a petition at Nawanshahr, whereas one of the other trustees filed a petition at Jalandhar. Another suit filed by Amarjit Singh Cashier of the Trust challenging his removal is also pending. In fact, the efforts of some of the trustees is to stall charitable work being carried on in the form of hospital which should not be stopped as the public at large will be affected.
On the other hand, learned counsel for respondent no. 1 submitted that Nawanshahr is a district and Additional District Judge-I posted there is incharge of the district. It is only because it is not a Sessions Division, the District Judge has not been posted there. Section 21-A of the Punjab Courts Act, 1918 (for short, "the Courts Act"), provides that the High Court or the District Judge may assign to an Additional District Judge any of the functions of the District Judge, including the functions of receiving and registering cases and appeals which could be instituted in the court of District Judge, and in discharge of those functions, the Additional District Judge exercises the same powers as the District Judge. He C.R. No. 4507 of 2008 [3] further submitted that as far as entrustment of the petition to another Additional District Judge by the Additional District Judge-I, incharge of the District, is concerned, no violation has been committed as such as Section 21-A of the Court Act takes care of such a situation and authorises the Additional District Judge-I exercising the power of District Judge to entrust any case to another Additional District Judge. Accordingly, there was no illegality or irregularity in filing and entertainment of the petition.
In so far as the contention raised by the learned counsel for the petitioner regarding disposal of the petition filed by respondent no. 1 in a summary manner is concerned, it was submitted that Section 7 of the Charitable Trust Act itself provides for that. There is no need to record evidence as such. The direction in certain matters could even be given ex-parte. It is only if a petition is filed under Section 3 of the Charitable Trust Act that a procedure is provided for issuance of notice and inquiring the matter in detail and not under Section 7 of the Charitable Trust Act. A petition under Section 7 of the Charitable Trust Act has been filed in the present case for the simple reason that in spite of earlier meeting of the General House held on 15.2.2006 for taking steps for the amendment of trust-deed, no meeting of the Trust was held thereafter because of the stubborn attitude of the petitioner who was trying to become a dictator. After filing of the petition, though certain meetings were held but those were totally ineffective as only formal business was transacted. He further submitted that the direction given by the learned court below for holding the meeting is innocuous and cannot be impugned as such for the simple reason that even the trust-deed provides for a meeting of the General House to be held every quarter and the direction given by the learned court below is only for holding meeting of the General House. He further submitted that the procedure under Section 92 CPC is quite lengthy and the relief prayed for by respondent no.1 in the present case was of an urgent nature, it is only for this reason that a petition under Section 7 of the Charitable Trust Act was filed where it could be decided in a summary manner. It was submitted that the petition filed by respondent no. 1 was neither incompetent nor any irregular procedure was followed by the learned court below in disposing of the same. The prayer is for dismissal of the petition.
Heard learned counsel for the parties and perused the record. Before I proceed to deal with the respective contentions of the parties, it would be appropriate to notice relevant provisions of various statutes referred to here. Sections 2, 3, 4, 5 and 7 of the Charitable Trust Act are as under:-
"2. Interpretation.- In this Act, unless there is C.R. No. 4507 of 2008 [4] anything repugnant in the subject or context, "the Court"
means the Court of the District Judge [or any other Court empowered in that behalf by the State Government] and includes the High Court in the exercise of its ordinary original civil jurisdiction
3. Power to apply to the Court in respect of trusts of a charitable or religious nature.- Save as hereinafter provided in this Act, any person having an interest in any express or constructive trust created or existing for a public purpose of a charitable or religious nature may apply by petition to the court within the local limits of whose jurisdiction any substantial part of the subject-matter of the trust is situate to obtain an order embodying all or any of the following directions namely:-
(1) directing the trustee to furnish the petitioner through the court with particulars as to the nature and objects of the trust, and of the value, condition, management and application of the subject-matter of the trust, and of the income belonging thereto, or as to any of these matters, and (2) directing that the accounts of the trust shall be examined and audited.
Provided that no person shall apply for any such direction in respect of accounts relating to a period more than three years prior to the date of the petition.
4. Contents and verification of petition.- (1) The petition shall show in what way the petitioner claims to be interested in the trust, and shall specify as far as may be, the particulars and the audit which he seeks to obtain.
(2) The petition shall be in writing and shall be signed and verified in the manner prescribed by the Code of Civil Procedure, 1908, for signing and verifying plaints.
5. Procedure on petition. - (1) If the Court on receipt of a petition under Section 3, after taking such evidence and making such inquiry, if any, as it may C.R. No. 4507 of 2008 [5] consider necessary, is of opinion that the trust to which the petition relates is a trust to which this Act applies, and that the petitioner has an interest therein, it shall fix a date for the hearing of the petition, and shall cause a copy thereof, together with notice of the date so fixed, to be served on the trustee and upon any other person to whom in its opinion notice of the petition should be given.
(2) On the date fixed for the hearing of the petition, or on any subsequent date to which the hearing may be adjourned, the court shall proceed to hear the petitioner and the trustee, if he appears, and any other person who has appeared in consequence of the notice, or who it considers ought to be heard, and shall make such further inquiries, if any, as it thinks fit. The trustee may and, if so required by the court, shall, at the time of the first hearing or within such time as the court may permit, present a written statement of his case. If he does present a written statement, the statement shall be signed and verified in the manner prescribed by the Code of Civil Procedure, 1908, for signing and verifying pleadings.
(3) If any person appears at the hearing of the petition and either denies the existence of the trust or denies that it is a trust to which this Act applies, and undertakes to institute within three months a suit for a declaration to that effect and for any other appropriate relief, the court shall order a stay of the proceedings and, if such suit is so instituted shall continue the stay, until the suit is finally decided.
(4) If no such undertaking is given, or if after the expiry of the three months no such suit has been instituted, the court shall itself decide the petition.
(5) On completion of the inquiry provided for in sub-section (2), the court shall either dismiss the petition or pass thereon such other order as it thinks fit;
Provided that, where a suit has been instituted in accordance with the provisions of sub-section (3), no order shall be passed by the court which conflicts with C.R. No. 4507 of 2008 [6] the final decision therein.
(6) Save as provided in this section, the court shall not try or determine any question of title between the petitioner and any person claiming title adversely to the trust.
xxx xxx xxx
7. Powers of trustee to apply for directions.- (1) Save as hereinafter provided in this Act, any trustee of an express or constructive trust created or existing for public purpose of a charitable or religious nature may apply by petition to the court, within the local limits of whose jurisdiction any substantial part of the subject-matter of the trust is situate, for the opinion, advice or direction of the court on any question affecting the management or administration of the trust property, and the Court shall give its opinion, advice or direction, as the case may be, thereon:
Provided that the court shall not be bound to give such opinion, advice or direction on any question which it considers to be a question not proper for summary disposal.
(2) The court on a petition under sub-section (1), may either give its opinion, advice or direction thereon forthwith, or fix a date for the hearing of the petition, and may direct a copy thereof, together with notice of the date so fixed, to be served on such of the persons interested in the trust, or to be published for information in such manner, as it thinks fit.
(3) On any date fixed under sub-section (2) or any subsequent date to which the hearing may be adjourned, the court, before giving any opinion, advice or direction, shall afford a reasonable opportunity of being heard to all persons appearing in connection with the petition.
(4) A trustee stating in good faith the facts of any matter relating to the trust in a petition under sub-section (1), and acting upon the opinion, advice or direction of the court given thereon, shall be deemed, as far as his C.R. No. 4507 of 2008 [7] own responsibility is concerned, to have discharged his duty as such trustee in the matter in respect of which the petition was made. "
Sections 21, 21-A and 24 of the Punjab Courts Act, 1918, are reproduced as under:-
"21. Additional District Judge.- (1) The State Government, in consultation with the High Court, may also appoint Additional District Judges to exercise jurisdiction in one or more courts of the District Judges.
(2) Additional District Judges shall have jurisdiction to deal with and dispose of such cases only as the High Court, by general or special order, may direct them to deal with and dispose of or as the District Judge of the District may make over to them for being dealt with and disposed of:
Provided that the cases pending with the Additional District Judges immediately before the 28th day of June, 1963, shall be deemed to be cases so directed to be dealt with or disposed of by the High Court or so made over to them by the District Judge of the District as the case may be.
(3) While dealing with the disposing of the cases referred to in sub-section (2), an Additional District Judge shall be deemed to be the Court of the District Judge.
21-A. Assignment of functions of District Judge to Additional District Judge.- The High Court or the District Judge may assign to an Additional District Judge any of the functions of the District Judge, including the functions of receiving and registering cases and appeals, which but for such assignment of functions could be instituted in the Court of the District Judge, and in the discharge of those functions the Additional District Judge shall, notwithstanding anything contained in the Act, exercise the same powers as the District Judge.
xxx xxx xxx
24. District Court to be principal Civil Court of original jurisdiction.- The Court of the District Judge C.R. No. 4507 of 2008 [8] shall be deemed to be the District Court or principal Civil Court of original jurisdiction in the District."
The scheme of the Charitable Trust Act is that under Section 3 'any person' having interest in any express or constructive trust created or existing for a public purpose of a charitable or religious nature may apply by filing a petition to the court within the local jurisdiction of whose substantial part of the subject matter of the trust is situated for providing the applicant therein the nature and objects of the trust etc. or seeking a direction for audit of accounts. The petition is required to be signed and verified as a plaint in the manner prescribed by the CPC. The court on receipt of the petition under Section 3 of the Charitable Trust Act after taking such evidence and making such inquiry, as it may consider necessary, if is of the opinion that the Charitable Trust Act is applicable to the trust against which the application has been filed and the applicant is interested therein, may issue notice to the opposite party after fixing the date of hearing. Thereafter, the opposite party is entitled to file written statement. After that the court is to decide the claim made in the petition after hearing the parties.
As far as Section 7 of the Charitable Trust Act is concerned, it entitles any trustee of an express or constructive trust created or existing for public purpose of a charitable or religious nature to apply to the court of local jurisdiction for opinion, advice or direction of the court on any question affecting the management or administration of the trust property, and the Court is required to give its opinion, advice or direction, as the case may be, thereon. Proviso to sub- section (1) of Section 7 provides that the court is not bound to give such opinion, advice or direction on any question which it considers to be a question not proper for summary disposal. Section 7 (2) of the Charitable Trust Act further provides that the court is entitled to give its opinion, advice or direction thereon forthwith, or issue a notice to the opposite party and thereafter issue a direction after hearing the parties to the petition.
The word "court" used in Sections 3 and 7 of the Charitable Trust Act has been defined in Section 2 thereof. It means the court of District Judge or and other Court empowered in this behalf by the State Government and includes the High Court in the exercise of its ordinary original jurisdiction.
Now in the light of the aforesaid scheme of the Charitable Trust Act and the Courts Act, the contentions of the parties are to be considered.
In the present case, a petition under Section 7 of the Charitable Trust Act was filed by one of the trustees of the Trust before the Additional District Judge-I, Nawanshahr. The fact that respondent no.1 who had filed the petition is C.R. No. 4507 of 2008 [9] one of the trustees and having interest in trust created for a public purpose of a charitable nature is not in dispute. Meaning thereby that the application of the provisions of the Charitable Trust Act and the entitlement of respondent no. 1 to invoke jurisdiction of the Court under Section 7 thereof is not in dispute.
The issue sought to be raised by the learned counsel for the petitioner is that the petition under Section 7 of the Charitable Trust Act could not be filed before the learned Additional District Judge-I, Nawanshahr as Section 7 of the Charitable Trust Act provides for its filing before the District Judge. The fact that the property of the trust is situated in District Nawanshahr, is not in dispute. Nawanshahr was created as a new District on 6.8.1998. It is still part of Jalandhar Sessions Division. The filing of cases/appeals, which are to be made before the District Judge, are made before the Additional District Judge-I (Incharge) at Nawanshahr, who is exercising the powers of District Judge in that regard. Therefore, I do not find any illegality was committed by respondent no. 1 in filing the petition before him. Accordingly, the contention raised by learned counsel for the petitioner that the petition was presented to an incompetent authority is rejected being misconceived.
As far as the other contention raised by learned counsel for the petitioner regarding the entrustment of the petition by the Additional District Judge-I (Incharge) to other Additional District Judge for disposal is concerned, a perusal of Sections 3 and 7 of the Charitable Trust Act provides that 'any person' interested or 'the trustee' of a trust is entitled to 'apply' by a petition to the court. The word 'Court' is defined as the court of District Judge. The word 'apply' used in the proviso is significant which would mean only an act of filing a petition. Filing of petition is always before the District Judge or the Additional District Judge (Incharge) who has been assigned the powers of District Judge. This provision does not provide that the petition so filed before the District Judge is to be decided by the District Judge or the Additional District Judge-I (Incharge) himself. Learned counsel for the petitioner had not cited any judgment in support of his argument.
Section 21 of the Court Act provides for appointment of Additional District Judges to exercise jurisdiction in one or more courts of the District Judges. They have been further entrusted jurisdiction to deal with and dispose of cases which are assigned to them by the High Court by general or special order or are entrusted to them by the District Judge for disposal and while dealing with the cases so entrusted, an Additional District Judge shall be deemed to be the court of District Judge. In my considered opinion, the answer to the issue raised by the learned counsel for the petitioner is explicit in the provisions itself as in the present C.R. No. 4507 of 2008 [10] case Additional District Judge-I (Incharge), Nawanshar exercising the powers of District Judge had entrusted the petition filed by respondent no. 1 under Section 7 of the Charitable Trust Act to another Additional District Judge and the disposal of the petition by him is deemed to be disposal by the District Judge.
A Division Bench of this Court in The Oriental Insurance Company Ltd. v. Harvinder Kaur and others, (2007-1) 145 P.L.R. 199 was called upon to consider an issue as to whether the Additional District and Sessions Judges (Fast Track) on judicial side exercises the same power and perform the same function as the regular Additional District Judges being Presiding Officers of the Motor Accident Claims Tribunal in the State or a separate special notification was required to be issued. The question was answered in positive holding that even the Additional District & Sessions Judges (Fast Track) are same as Additional District and Sessions Judges and they can very well exercise the powers of Presiding Officers of Motor Accident Claims Tribunal without there being any separate special notification for them.
In Civil Revision No. 670 of 2005 -Raj Kumar v. Smt. Gunmala Jain, decided on 1.3.2005, the issue was exercise of power as appellate authority under the Rent Control legislation by the Additional District Judges (Fast Track). There also, this Court opined that there is no difference between Additional District and Sessions Judges appointed on regular cadre and Additional District and Sessions Judges (Fast Track) as both exercise the same powers.
Accordingly, even this issue raised by learned counsel for the petitioner is lacking merit and accordingly, rejected.
Another contention raised by the learned counsel for the petitioner was that before passing final order in a petition under Section 7 of the Charitable Trust Act, the court was bound to provide opportunity of leading evidence to the petitioner. However, even this contention of learned counsel for the petitioner is found to be misconceived. In fact, the answer thereto also is available on the plain reading of the provisions of the Charitable Trust Act itself. Section 3 thereof provides a right to any person having interest in the trust created or existing for a public purpose of a charitable or religious nature, whereas Section 7 enables a trustee to file a petition. In Section 3 of the Charitable Trust Act procedure is provided for filing and disposal of the petition, which is envisaged under Sections 4 and 5 thereof. It provide filing of the petition in the form of a plaint, satisfying the manner prescribed in CPC. On receipt of the petition, the court is to hold certain preliminary inquiry, may be after recording evidence and form a prima facie opinion that the petition satisfies two pre-conditions, namely, that the person C.R. No. 4507 of 2008 [11] who has filed the petition is an interested person and secondly the trust against which the petition has been filed is created or existing for a public purpose of a charitable or religious nature, then the notice is required to be issued to the respondents in the petition so filed. Thereafter, it is required to be dealt with after filing of the written statement in the manner provided in CPC.
Under Section 7 of the Charitable Trust Act, the scheme is altogether different. A trustee is entitled to file a petition for opinion, advice or direction affecting the management or administration of the trust property and the court has been authorised to give its opinion, advice or direction. Proviso to sub-section (1) of Section 7 provides that the court is not bound to give such opinion, advice or direction on any question which in the opinion of the court is not proper for summary disposal. Sub-section (2) entitles the court even to give its opinion, advice or direction immediately on filing of the petition or it can issue notice and fix a date of hearing and after hearing the parties can issue any direction. In all the cases it does not envisage recording of any evidence before a direction is issued. It depends on the prayer made in each case, which is to be examined in the facts and circumstances of each case independently. When the court is competent to issue directions even ex-parte or the scheme of the section provides for summary disposal of the petition filed, it cannot be said that evidence is required to be recorded in each case where relief prayed for can be granted without recording evidence keeping in view its urgency.
Similar view was expressed by a Division Bench of Allahabad High Court in Trilok Chandra v. Smt. Bhagwati Devi (deceased by L.R.), 1987 All. L.J. 1134.
Even on merits, I do not find any substance in the contentions raised by learned counsel for the petitioners as no ground was made out for rejection of the petition as such. Another petition, which was filed at Jalandhar and subsequently withdrawn was in fact filed by some other trustee. Further the same was withdrawn much prior to the disposal of the present petition. As far as maintainability of the petition under Section 7 of the Charitable Trust Act is concerned, the same also cannot be disputed for the reason that admittedly Guru Nanak Mission Medical & Educational Trust is a charitable trust created for public purpose and the petition was filed by one of the trustees. Section 7 of the Charitable Trust Act envisaged summary disposal of the petition so filed, meaning thereby for any relief, petition under Section 7 is maintainable where evidence or arguments in detail are not required and in the present petition, the prayer being only for a direction to the President of the Trust to call meeting of the General C.R. No. 4507 of 2008 [12] House, it could very well be disposed of by adopting summary procedure. Even otherwise, the relief granted by the learned court below is totally innocuous as a direction has been given to the petitioner for holding the meeting of the General House of the Trust which according to learned counsel for the respondents is otherwise to be called every quarter and no prejudice as such has been caused to the petitioner.
For the reasons mentioned above, I do not find any merit in the present revision petition. Accordingly, the same is dismissed.
(Rajesh Bindal) Judge January 28, 2009 (Refer to Reporter)