Gujarat High Court
Rameshbhai Mohanbhai Pipaliya vs Joint Charity Commissioner, Rajkot on 17 February, 2020
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/4230/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4230 of 2020
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RAMESHBHAI MOHANBHAI PIPALIYA
Versus
JOINT CHARITY COMMISSIONER, RAJKOT
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Appearance:
MR BHARAT T RAO(697) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2
MR MRUGEN K PUROHIT(1224) for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 17/02/2020
ORAL ORDER
1. This petition is filed under Article-226 of the Constitution of India, seeking writ of prohibition, direction to the respondent No.1-Joint Charity Commissioner, Rajkot, from not entertaining and proceedings further with Misc. Application No.22 of 2019 filed by the respondent No.2 under Section-26 on the ground that the respondent No.1 has no authority or jurisdiction to entertain such application.
2. Learned Advocate for the petitioner claims to be Satsangi of Swaminarayan and disciple of Swaminarayan Gurukul, Rajkot and has studied between 1983 to 1984 as student of Swaminarayan Gurukul. The subject matter, which is at the root of litigation is the property being Survey No.37/1 ad-measuring 4 acres of Village-Kangashiyali, which was gifted by one Shri Navinbhai Dave of Swaminarayan Gurukul, Rajkot. It is the say of the petitioner that the property which is now to be treated as the property of the Trust, has sought to be given back to said Shri Navinbhai Dave by adopting procedure not known of law and the Page 1 of 9 Downloaded on : Sun Jun 14 23:12:38 IST 2020 C/SCA/4230/2020 ORDER application under Section-26 is one such attempt. He drew attention of this Court to previous round of litigation with regard to same subject property, which came to be concluded by order dated 14-07-2009 passed in Misc. Civil Application No.1563 of 2009, where this Court had made observation regarding settlement and declarations made between the parties and to effect of such settlement through known process of law. According to the petitioner, known process of law is to seek permission of the Charity Commissioner under Section-36, where the Trust or the Trustees are to deal with any property belonging to the Trust. It is further submitted that application under Section-26 is filed after long period of ten years to register the settlement in the register maintained under Section-17. Anther prayer made in an application under Section-26 is to amend the Clause-9(C). It is submitted that for any amendment in the scheme, application under Section-50A is provided, but the intention of the respondents are to by-pass the provision of law and directly cause the amendment in Clause-9(C) of the Constitution of the Trust. Hence, also, application is not maintainable.
3. It is further submitted that the proceedings, which are reached to the High Court in previous round of litigation, were on account of dispute inter-say between the Trustees and therefore, it cannot be said that the Trust was party to the litigation and hence, the order passed by this Court cannot be registered in Register maintained under Section-17.
4. Learned Advocate by drawing attention to the Court to the order of this Court mentioned herein above, also submitted that the High Court has not given its stamp of approval to Page 2 of 9 Downloaded on : Sun Jun 14 23:12:38 IST 2020 C/SCA/4230/2020 ORDER such settlement. The High Court had only directed to give effect to the settlement by process known to law. Hence, also settlement order cannot be entered in the Register.
5. As against this, learned Advocate for the Caveator opposes the petition and submitted that the petitioner has no lcous to file the present petition except for being the student of Swaminarayan Gurukul in the year 1983-84. The petitioner has no other interest in the administration of the Trust and appears to be busy body to create nuisance value in the functioning of the Trust. It is submitted that application under Section-26 is in the direction of implementing settlement with this Court, has not only approved, but has also directed the same to be given effect to. It is submitted that objection of the petitioner is only with regard to one - Trust which is an Educational Trust, but has not raised objections with regard to same settlement qua the other Trust for which the settlement is being effected. It is submitted that in fact, in the year 2009 itself, the settlement has been 27 terms of settlement have been given effect, to which till date, no objection has been raised by the petitioner. But for some oblique motive or this specific settlement with regard to the property belonging to one Navinbhai Dave, in which the petitioner has shown interest. The petition contested therefore, on the basis of locus of the petitioner to challenge.
6. In rejoinder, learned Advocate for the petitioner submitted that the petitioner had made an application for joining party in the proceedings under Section-26. However, by separate order dated 04-02-2020, said application is rejected and therefore, the petitioner proposes to move Draft amendment to bring that order on record and challenge the same.
Page 3 of 9 Downloaded on : Sun Jun 14 23:12:38 IST 2020 C/SCA/4230/2020 ORDER7. The main stay of the argument for the petitioner is based on earlier order dated 14-07-2009 passed by this Court in Misc. Civil Application No.1563 of 2009 in Misc. Civil Application No.1086 of 2008 in Special Civil Application No.3892 of 2008. In para-2 of the order recognizing the settlement between the parties. Para-2, which is as under:
"2. In view of the aforesaid settlement and the declaration, no orders except observing that the settlement may be effected through the process known to law."
8. It is based on this para-2 that the petitioner is arguing that when land in question namely Survey No.37/1, ad-measuring 4 acres of Village-Kangashiyali, when was running in the name of respondent- Swaminarayan Gurukul Trust, Rajkot having registration No. E/45/Rajkot, was to be transferred by way of gift deed in the name of Sahjanand Charitable Trust, Rajkot having registration No.E/7029/Rajkot, the procedure had prescribed under the provision of Bombay Public Trust Act is not followed.
9. Present petition is preceded by several earlier round of litigations between the various other parties. The broad settlement was arrived at between all concerned, pending the main petition being Special Civil Application No.3892 of 2008 with an object of maintaining the peace and harmony amongst the Sants and Disciples of entire Gurukul Parivar and with an object of overall development, an agreement came to be executed which consisted of 27 points includes all the activities of the Trust and all the properties of the Trust. One point of such agreement was listed at Item No.9, which reads as under:
"(9) The land at Kangshiyali with Survey No - 37/1, Area - 4 Acre, which has been gifted by Mr. Navinbhai Dave to the Page 4 of 9 Downloaded on : Sun Jun 14 23:12:38 IST 2020 C/SCA/4230/2020 ORDER Swaminarayan Gurukul, Rajkot, shall be transferred to "Shri Sahjanand Charitable Trust", Rajkot, Registration No - E-
7029, Rajkot."
10. So as broad consensus of all concerned, the entire dispute of any nature were sought to be put to end. Recognizing this settlement, the order dated 14-07-2009 came to be passed. In so far as the land in question is concerned by Executing Registered Gift Deed on 17-09-1999, the donor - Navinbhai Chandulal Dave had donated the land in question to Swaminarayan Gurukul Trust, Rajkot bearing registration No. E/45/Rajkot. By another Deed dated 14-09- 2009 registered wherein the land in question was gifted to Sahjanand Charitable Trust, Rajkot bearing registration No.E/7029/Rajkot by Swaminarayan Gurukul Trust, Rajkot bearing registration No. E/45/Rajkot. This was in the year 2009. Thereafter, it appears that an application under Section-36 was moved in the year 2011 for the said land and by pursis dated 20-12-2014, said application was not pressed. Application under Section-36 came to be disposed of accordingly on 23-12-2014. This land by the registered document in the year 2010, has been transacted between Sahjanand Charitable Trust, Rajkot bearing registration No.E/7029/Rajkot and Navinbhai Chandulal Dave through power of attorney -Dhaval Janakray Dave. This transaction was for a consideration. The sale-deed was registered on 24- 02-2010. On 16-09-2015, the petitioner filed an application no.41/20/2015 under Section-41. This application was against the both i.e. Swaminarayan Gurukul Trust, Rajkot bearing registration No. E/45/Rajkot and Sahjanand Charitable Trust, Rajkot bearing registration No.E/7029/Rajkot and Trustees of Page 5 of 9 Downloaded on : Sun Jun 14 23:12:38 IST 2020 C/SCA/4230/2020 ORDER both the Trusts. Prayer was with regard to the land in question and objection to Registered Sale-deed of 24-02-2010 and based on such transaction sought for direction to both the Trustees under Section-41. In the said application for direction under Section-41, an order came to be passed on 18-09-2015, wherein the directions were issue for maintaining status quo qua the land mentioned in Prayer Clause-11A, whereas in so far as other prayer particularly Prayer-11S of that application, which was for preparing the detail report, the same appears to have been rejected. The petitioner has thereafter made an application in the year 2015 to the Charity Commissioner for taking steps into grievance raised by the petitioner. The Joint Charity Commissioner has taken into consideration the grievance of the petitioner raised in two communications of the year 2015, has passed an order dated 29-09-2015. As the issue raised before this court, was the same issue which was also agitated in the year 2015, it would be appropriate to mention findings of fact given by the Charity Commissioner in this regard, which are as under:
"7) On 12/09/2015, a statement is received from all the trustees of Sahjanand Charitable Trust, Rajkot with reference to the notice issued to the concerned parties from the office of Charity Commissioner. I read the same. As per the statement, the original owner of the land, Navinbhai Chandulal Dave had purchased the land by paying the amount as per Jantri to register the agriculture land in his name. He has requested to close this chapter stating that applicant Rameshbhai Pipaliya has submitted all these application with an intention to blackmail. Moreover, Navinbhai Chandulal Dave has submitted a written Page 6 of 9 Downloaded on : Sun Jun 14 23:12:38 IST 2020 C/SCA/4230/2020 ORDER statement before me today on 19/09/2015. I read the same.
Along with that, I read the necessary documents concerned to this land regarding the payment of Rs. 41 lakh as per the value of Jantri. I also read his application dated 31/08/2015 and Settlement dated 14/07/2009 of Gujarat High Court and MOU executed thereof.
(8) Now, the question arises that the entire accusation is against Navinbhai Chandulal Dave. If he wanted to commit fraud then why would he transfer the land owned by him to Swaminarayan Gurukul? He has previously taken permission of Collector as per the Revenue Act. The title of the land can not be provided until the due process as per the Revenue Act is not completed even if the land is registered in the name of Gurukul as per the Revenue record. The trust can not get the rights of the farmer. In such case, the property could not be transferred. Ultimately in this matter, he had decided to provide this land to Sahjanand Charitable Trust and following the litigation in the High Court, settlement was arrived at. Sahjanand Charitable Trust was not in condition to develop this land since the land was in industrial zone. In these circumstances, Shri Navinbhai Dave has received the land back by paying the stamp duty. This does not seem as fraud or scam. As per the provision of Revenue Act, compliance was not met with so transfer note is not filled as per the section-22 of Bombay Public Trust Act. The property can not be registered in the name of Trust if the transfer is not filled. There is no question of permission as per section-36 if the property is not registered in the name of Trust. Taking into consideration all these facts, I opine that because of irregularity followed by the intricacies of the Revenue Act, Page 7 of 9 Downloaded on : Sun Jun 14 23:12:38 IST 2020 C/SCA/4230/2020 ORDER the title is not in the name of Trust and it is not admitted in the P.T.R. Hence, there is no possibility of any scam."
11. The prayer sought for before this Court to prevent the proceedings in connection with Misc. Application No.22 of 2019 where the prayer clause is as under:
"8.1) In respect of this Trust, the settlement on 27 points has been finalized between this Trust and Rajkot Gurukul Trust and other trusts. The said settlement has been registered pursuant to the order of Hon'ble Gujarat High Court passed by Hon'ble Justice Jayant Patel in Special C.A. No.3894/2008. Hence, it is humbly prayed to direct the entry of this settlement and order to be made in P.T.R. of the Trust.
(8.2) It is further humbly prayed to Your Honour to pass necessary orders directing Assistant Charity Commissioner, Rajkot to make necessary entry in P.T.R. of this Trust as settled in respect of section-9(a) of the Trust Deed of this Organization in para No.2 of this settlement deed to the effect that, "...The persons shall be the Managing Trustee/President of this Trust who will be appointed as Managing Trustee/President by the Trustees of Shree Swaminarayan Gurukul Sarvajiv Hitavaha Trust as per section-9(a) of the Trust Deed of Shree Swaminarayan Gurukul Sarvajiv Hitavaha Trust regarding the Managing Trustee/President or both...", and to provide the P.T.R. to us alongwith the necessary changes.
(8.3) To grant any other relief which may deem fit to Your Honour (9) Necessary court fee stamp is affixed on this application."
12. The petitioner has filed an Misc. Application No.22 of Page 8 of 9 Downloaded on : Sun Jun 14 23:12:38 IST 2020 C/SCA/4230/2020 ORDER 2019 for joining as opponent in ongoing proceedings. It appears that by a separate order dated 04-02-2020, such application has been rejected with reasoned order. The petitioner has sought to include the aforesaid order to challenge in this petition by proposing Draft Amendment. However, it is pertinent to note that the matter was filed before this Court on 03-02-2020. Office objections were removed on 14-02-2020 and the petition was registered on 14-02-2020. Order below Exh-10 sought to be challenged by way of amendment is dated 04-02-2020 and the petitioner has not bothered to put up the order before this Court when the petition was filed. Draft amendment which is under signature of the Advocate for the petitioner is of 17-02-2020. This chronology is indicative of the fact that prima facie the petitioner by hook or by crook is inter-middle in the affairs of the Trust and had the petitioner been bonafide challenger, the petitioner would have included order at the first instance and that not preferred an amendment at the time of hearing of the petition. Moreover, order of the Joint Charity Commissioner can be subject matter of challenge by way of alternative remedy and hence, amendment is not allowed.
13. In view of the aforesaid reasons, the Court does not find any reasons for interfering in the ongoing proceedings. Hence, the petition deserves to and hereby dismissed.
Direct service is permitted.
(A.Y. KOGJE, J) PARESH SOMPURA Page 9 of 9 Downloaded on : Sun Jun 14 23:12:38 IST 2020