Gujarat High Court
Saiyed Sirajhusen Fatehali vs Joint Charity Commissioner on 22 April, 2024
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.17235 of 2023
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR. JUSTICE NIRZAR S. DESAI Sd/-
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1. Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2. To be referred to the Reporter or not ? YES
3. Whether their Lordships wish to see the fair NO
copy of the judgment ?
4. Whether this case involves a substantial NO
question of law as to the interpretation of the
constitution of India, 1950 or any order made
thereunder ?
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SAIYED SIRAJHUSEN FATEHALI & ORS.
Versus
JOINT CHARITY COMMISSIONER & ORS.
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Appearance :
MR MIHIR JOSHI, SENIOR COUNSEL ASSISTED BY MR MRUGEN K PUROHIT
for the Petitioners.
MS DHWANI TRIPATHI, AGP for the Respondent No.1
MR P.K. JANI, SENIOR COUNSEL ASSISTED BY MR S. K. PATEL AND MR
ADITYA S PATEL for the Respondent Nos.3,4,5,6,7,8,9
MR. AKASH R PATEL for the Respondent No.2.
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 22/04/2024
CAV JUDGMENT
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NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined
1. By way of this petition, the petitioners have prayed for quashing and setting aside the order dated 8.8.2023 passed by learned Joint Charity Commissioner, Ahmedabad in Application No.51/1/2023 whereby the learned Joint Charity Commissioner, Ahmedabad has granted consent to the respondent Nos.2 to 9 who are the original applicants before the Joint Charity Commissioner, to institute a civil suit under Section 50 read with Rule 27 of the Bombay Public Trusts Act and Rules framed thereunder.
2. The matter was heard at length on 10.10.2023 and this Court had passed the following order :-
"Heard learned Senior Advocate Mr. Mihir Joshi with learned advocate Mr. Mrugen K. Purohit appearing for the petitioners, learned Senior Advocate Mr. Prakash K. Jani with learned advocate Mr. S.K. Patel appearing for the respondents No. 3 to 9, learned advocate Mr. Aakash Patel appearing for the respondent No.2 and learned Assistant Government Pleader Ms. Dhwani Tripathi appearing for the respondent No.1 - Joint Charity Commissioner, Ahmedabad.
At the outset, learned advocate Mr. Aakash Patel and learned advocate Mr. S.K. Patel submitted that they may be permitted to file their Vakilatnama in the registry for the respective respondents.
Permission as prayed for is granted. Registry is directed to accept the Vakilatnama of learned advocate Mr. Aakash Patel and learned advocate Page 2 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024 NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined Mr. S.K. Patel appearing for the respective respondents. Matter was heard at length.
Arguments are concluded. Reserved for Orders."
3. Thereafter, the petitioner and private respondents had given their written submissions along with the decisions relied upon by them and those written submissions are on record and the contents of the written submissions are considered while considering the submissions made by learned counsel for the parties.
4. Hence, Rule. Learned Senior Advocate Mr. Prakash K. Jani with learned advocate Mr. S.K. Patel waives service of rule for respondents Nos.3 to 9, learned advocate Mr. Aakash Patel waives service of rule for respondent No.2 and learned Assistant Government Pleader Ms. Dhwani Tripathi waives service of rule for respondent No.1 - Joint Charity Commissioner, Ahmedabad.
5. The brief facts giving rise to filing of the present petition are as under :-
5.1 The dispute pertains to Pir Imamsha Bava Dargah or Roza Pirana in the south Daskroi Taluka, Ahmedabad District was founded before 600 years ago by Imam Bava, whose followers are saiyed and satsangi and his tomb (dargah or roza) is held a great venerations by his followers and worship by saiyed and satsangi of the sect.
5.2 The saiyed community is considered to be direct descendants of Imamsha and according to the petitioner, due to that reason, in every scheme, their rights are recognized. Before the Bombay Page 3 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024 NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined Public Trusts Act, 1950 came into force, in the year 1931, a Civil Suit No.168 of 1931 was instituted under Section 92 of the CPC for the purpose of settlement and framing of the scheme. The scheme for the purpose of administration and management was framed by the first class subordinate Judge in the aforesaid suit vide order dated 26.9.1939.
5.3 According to the petitioners, there were very important Clauses in the Original Scheme, namely, Clause Nos.3, 6 and 7 as according to the petitioners, those were Clauses of the Scheme recognizes rights of Saiyeds.
5.4 In the year 1968, a Civil Suit No.47 of 1968 was filed before the District Court, Ahmedabad Rural for modification of the scheme and prayed to enhance the tenure of the committee from 3 years to 5 years.
The aforesaid application was allowed vide order dated 17.12.1969. Thereafter in the year 1973, Trust Suit No.1 of 1973 was filed by Jasvantbhai Chhaganlal and others for increasing the amount which is to be paid to the saiyed under the scheme and the said suit was disposed of. In the year 1999, First Appeal No.6353 of 1999 was filed before this Court. Those facts, though are not relevant for the purpose of the present petition, but according to the petitioners, the same reveals that the original scheme of 1939 was modified twice thereafter.
5.5 Thereafter, between 2002 to 2020, there was a dispute with regard to appointment of one Nanjikaka as Gadiwala Kaka and in respect of change report which was decided upto the District Court, it was confirmed that he was not validly appointed as Gadiwala Kaka and, therefore, his appointment was challenged. However, upon his death, two groups appointed two different persons as Gadiwala Kaka and filed the change reports in respect of their respective appointments before the Charity Commissioner.
Page 4 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined 5.6 According to the petitioner, thereafter satpanthi have taken steps for framing fresh scheme as the scheme is almost 80 years old. First Appeal No.6357 of 1999 which was pending before this Court was disposed of with a direction that the chairman shall file fresh scheme before appropriate forum within 8 weeks from the date of the order.
5.7 Thereafter, as per the case of the petitioners, the respondent Nos.2 to 9 preferred an application under Section 51 being Application No.51/1/2023 before the learned Charity Commissioner, Ahmedabad seeking permission to file a suit. Though by way of the aforesaid application, they sought permission to modify the scheme of the year 1939, they did not point out the fact that the scheme has been modified twice and at present, the Scheme of 1999 is in force. Along with the aforesaid application, the respondent Nos.2 to 9 also filed the plaint and the proposed scheme and the resolution of the Trust for framing of the new scheme and the aforesaid application was opposed by the present petitioners by filing reply.
5.8 The petitioners also raised preliminary objection by filing application below Exh.16 and also an application below Exh.21 for stay of the proceedings before the Charity Commissioner. However, the said application was rejected on the very same day i.e. 6.7.2023.
5.9 In the meantime, the petitioners Nos.2 and 3 filed Misc. Civil Application No.3 of 2023 for modification of order dated 23.12.2022 passed in First Appeal No. 6357 of 1999, during the pendency of the proceedings before the Joint Charity Commissioner on 21.7.2023 and the same was disposed of on 7.8.2023. On 8.8.2023, the impugned order was passed by the learned Joint Charity Commissioner granting permission to the respondent Nos.2 to 8 to file civil suit as per the plaint Page 5 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024 NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined provided under Section 50 and permission was granted under Section 51 read with Rule 27 of the Rules.
5.10 Being aggrieved by the aforesaid order dated 8.8.2023, the present petition is preferred.
6. Learned Senior Advocate Mr. Mihir Joshi assisted by learned advocate Mr. Mrugen Purohit appearing for the petitioners has made the following submissions :-
6.1 That Section 50 (iii) and 50(g) of the Gujarat Public Trust Act, 1950, provides that in any case, where the direction of the court is deemed necessary for the administration of any public trust, the Charity commissioner after making such inquiry as he thinks necessary, or two or more persons having interest in the trust and having obtained the consent of the Charity commissioner in writing as provided u/s 51 may institute a suit, to obtain a decree for the settlement of a scheme or variation or alteration in a scheme already settled. That Section 51 of the Gujrat Public Trust Act, 1950, provides that, a person having interest in any public trust, intends to file a suit of a nature specified in section 50, he shall apply to the Charity Commissioner in writing for his consent.
The charity Commissioner, after hearing the parties and after making such inquiry as he thinks fit, may grant or refuse his consent to the institution of the suit. The order of the charity commissioner refusing his consent shall be in writing and shall state the reasons for the refusal. Therefore, it is clear that, firstly, as far as the locus is concerned the person who intends to file a suit, must be a person having interest in the Trust.
Page 6 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined 6.2 That secondly, an applicant can apply for permission for variation or alteration of the scheme of a trust and not complete substitution of the scheme of the Trust. Further, it has to be adjudicated by the Charity Commissioner that a direction is necessary for the better administration of the Public Trust concerned and only in such circumstances, a suit for variation or alteration or settlement of the scheme can be filed. That in the present case, a person is seeking permission to file a suit for directions to substitute the entire scheme, which is contrary to the provisions of law. The entire essence of the Trust is that it is nor a Hindu Trust nor a Muslim Trust, it a faith which has been jointly followed and worshiped by people of both the religions. It was never a Hindu or a Muslim faith, in its conventional sense. Therefore, a person trying to completely oust the representation of one religion from the trust and completely changing the essence and basic structure of the trust, cannot be said to be a person working in the interest of the trust and no permission for institution of suit can be granted which as the same is against the interest of the trust. The rights of the saiyads have been recognised from inception and particularly from the first scheme which was framed in the year 1939 which is subsequently modified in 1969 and also in 1999. All these schemes have accepted their rights which can not be oust by the propose scheme.
6.3 That now, contrary to the original scheme and the essence and basic structure of the Trust, the proposed change in the name to "Niskalanki Narayan" and excluding the representation of the Saiyeds would be changing the entire nature and essence of the trust. The proposed change would change the basic structure or the basic nature and character of the Trust as it Page 7 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024 NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined is evident from right away changing the name of the Trust. The variation or alternation of the name of the Trust is not something that is envisaged u/s.50(g) of the Gujarat Public Trust Act, 1950. In the present case, the two fundamentals i.e. the name of the Trust and the object of the Trust are sought to be changed. This aspect is overlooked and no reasons assigned for granting permission to institute suit and therefore, the impugned order is bad in law.
6.4 That there is no ambiguity about it as the applicants themselves are saying that they want to change the name and object of the Trust and also suggesting substituting new scheme in place of the 1939 schem. Therefore the Ld. Jt. Charity Commissioner had to see whether the direction sought for is for the proper administration of the Trust or whether it is an attempt to change the entire nature of the Trust. For deciding the same, the Ld. Jt. Charity Commissioner will have to keep in mind what is the earlier scheme and what is proposed now.
6.5 That in the impugned order, there is no satisfaction stated or described by the Ld. Jt. Charity Commissioner that a direction is necessary for the better administration of the Trust and permission is to be granted in the interest of the trust. It has been stated that the change is needed to meet with the new developments. However, it is pertinent to note that variation or alteration of a scheme of Public Charitable Trust cannot be of a nature which substitutes the Trust or the scheme of the Trust, essentially, changing the entire essence/basic structure of the original trust.
6.6 That the Ld. Jt. Charity Commissioner had to consider Page 8 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024 NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined that is the suit of such a nature permissible under the provisions of the Act or not. The Ld. Jt. Chairty Commissioner would have to draw that line whether the basis of the entire Trust would change or not and if yes, then, it would not be in the best interest of the Trust and therefore, in the present case, the impugned order is bad in law.
6.7 That the original applicants-the respondents herein are getting their disputes settled, which are otherwise pending in various change report proceedings and other proceedings before various forums and circumventing all those proceedings, the application is filed to seek permission to institute suit which is improper and contrary to the circular no 3 of 2022 @ page 336. The learned Joint Charity Commissioner has not consider the said circular while passing the order under challenge.
6.8 That on a bare perusal of the impugned order, it is clear that none of the key parameters of section-50 & 51 are reflected in the findings by the Ld. Jt. Charity Commissioner. There is no objective finding by the learned Joint Charity Commissioner that directions are necessary for administration of the Trust nor there is a finding that institution of the suit for framing the scheme is in the interest of the Trust.
6.9 That there was no consent given by the Petitioners or Saiyads before this Court in First Appeal No 6357 of 1999 and the order of this Court in the First Appeal would not condone the requirement of a permission under the Act. The scope would be open for the authority to test the application filed under section 51 of the act on its own merit and the law would take its own course.
Page 9 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined The order of this Court would not conclude the stage of the provisions under Section 51. The right of the present petitioners to object to the Section 51 application cannot be taken away by the order of this Court especially when the Court never had an occasion to express its view on the nature of the proposed scheme or the nature of the variation. In the present case, the nature of the change sought is objectionable. According to the information of the Petitioners the learned Joint Charity Commissioner has not considered the order date 07//08/2023 passed in I.A No .3 of 2023 in F.A No 6357 of 1999. That the learned Joint Charity Commissioner has not dealt with the objections raised by the present petitioners. There is no discussion with regard to the objections of the petitioner. Even according to the law laid down by this Honourable Court in the matter of Hargovindbhai.D.Patel vs Prabhudas. R. Sanghani reported in 2000(2) GLR Page 1003, the Charity Commissioner has to satisfy himself that (i) it is a public charitable trust, registered under the Act, (ii) there is a prima facie good ground to file a suit and (iii) whether the proposed suit is not frivolous or vexatious. The Ld. Jt. Charity Commissioner had to adopt the judicial procedure for deciding this question while granting or rejecting the application. However, in the present case, the objections of the petitioners are not considered at all. These aspects have been not consider while passing impugned order.
6.10 That the 1939 scheme was twice modified by the appropriate Court therefore original applicants could not have sough modification of 1939 scheme. That the contentions of maintainability, vexatious nature of the suit and no requirement to alter scheme, may be considered as concluded against the Petitioner and not available, once permission is granted and Page 10 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024 NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined therefore also reasons for granting permission are necessary. That provision for order in writing and reasons are out of abundant caution since simply denying grant of permission, the cause of the proposed plaintiff could be defeated. Such provision does not exempt authority from giving reasons in case of consent specifically provide looking to scheme of the provision which require the charity commissioner to grant or refuse the permission after making inquiry as he think fit. It is settled law that the necessity of giving reasons by the authority when such decision is subject to supervisory jurisdiction of the Hon'ble High Court irrespective of the fact that whether it confined to decision which are subject to appeal. For this proposition the petitioners rely the judgement of the Hon'ble Supreme Court in the matter of S.N.Mukherjee vs Union Of India reported in (1990) 4 SCC 594 Para 9,20 and 35 to
40.
7. Opposing the petition, learned Senior Advocate Mr. Prakash Jani assisted by learned advocate Mr. S. K. Patel and learned advocate Mr. Aakash Patel appearing for the respondent made following submissions :-
7.1 That for the reasons as set out in Application No.51/1/2023 filed on 18th April, 2023, the necessity and need had arisen to prepare the new scheme for the administration of public Trust and for obtaining a decree for relief of settlement of a scheme under section 50(III)(g) of the Gujarat Public Trust Act, 1950. That, previously, the scheme was framed before 85 years by the learned First Class Sub-Judge on 21 st May, 1939. That, in First Appeal No.6357 of 1999, this Court directed the respondent Nos.2 and 15 to 21 Trustees and the Chairman shall file fresh scheme Page 11 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024 NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined before the appropriate forum within a period of 8 weeks.
Thereafter, petitioner No.2 filed Miscellaneous Civil Application for recall of the order passed in the above First Appeal. That, on 21 st July, 2023, Miscellaneous Civil Application was not pressed with a liberty to move an appropriate application or modification of order. That the petitioners Nos.2 and 3 preferred Miscellaneous Civil Application for modification of the order and this Court vide order dated 7.8.2023 directed the respondent No.2, 15 to 21 - Trustees and the Chairman shall file a fresh scheme before the appropriate forum within a period of 8 weeks. In view of the aforesaid, the impugned order may not be interfered with as the impugned order does not infringe or violate any rights of the petitioners.
7.2 That in Civil Suit No. 136 of 1931, learned Civil Judge has recorded that Satpanthis have religious interests in the institutions and the income of the institution is derived solely from the voluntary contributions from Satpanthis. That as per the say of the respondents nos.2 to 9, there is no financial contribution of Saiyads in any manner. That in the judgment of Civil Suit No.168 of 1931, it is recorded that Satpanthis are Hindus and are following the Pirana Atharya Vedi Dharma. That in the old scheme as framed as per the judgment of Civil Suit No. 168 of 1931, the rights of Saiyads are to the extent of as referred to in Appendix A to the Schedule, which are now converted into cash which they are getting every year. That the Trust is for the religious faith of Satpathis and Saiyads are only beneficiaries. Saiyads are not followers of Satpath. They are only monetary beneficiaries.
7.3 That the learned Joint Charity Commissioner before passing the impugned order has taken into consideration the Page 12 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024 NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined application submitted by the respondent dated 18 th April, 2023, the decision in Civil Suit No. 163 of 31 passed by learned Civil Judge, Ahmedabad, draft of the scheme, draft of the proposed plaint, reply submitted by the petitioners dated 29 th May, 2023 and all other records including Charity Commissioner's communication dated 11th January, 2022 and after affording an opportunity of hearing to all parties, given detailed reasons as to why application seeking permission to file suit is required to be granted.
7.4 That under the scheme of the Gujarat Public Trust Act, 1950, while granting consent under section 51 of the Gujarat Public Trust Act, 1950, the Charity Commissioner is required to give reasons only when the Charity Commissioner refuses to give consent to the institution of such suit. That in a situation where charity commissioner grants sanction to file suit, no reasons are required to be recorded. In the instant case, the Joint Charity Commissioner, though not legally obliged to give reasons has provided detailed reasons while passing the impugned order. That the parameters of granting the consent to file civil suit are fully complied with by the Joint Charity Commissioner and there is no deviation in any manner in the facts of the present case.
7.5 That on the strength of the impugned order dated 8.8.2023 passed by the Joint Charity Commissioner granting consent to file the suit, a suit/application no. 248 of 2023 is filed by some of the respondents before the court of learned Additional District Judge, Ahmedabad (Rural). That in the said proceedings, order came to be passed on 9 th October, 2023 of issuance of public notice on the application filed by the respondents. Some of the persons interested have already appeared in the said proceedings.
Page 13 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined 7.6 That for the foregoing submissions, it is humbly prayed that this Court may not exercise extra-ordinary writ jurisdiction under Articles 226 and 227 of the Constitution of India as prayed by the petitioners in this Special Civil Application. That reliance placed by the petitioner on the judgment reported in 1990 (4) SCC 594 between S N Mukherjee Versus Union of India has no application to the facts of the present case. That point of consideration before the Hon'ble Supreme Court was whether there is requirement in law to give reasons while confirming the finding or sentence by the court martial by the confirming authority. There was no similarity of the provisions like the one with which the present subject matter is involved. It is submitted that under the Gujarat Public Trust Act, 1950, section 51(1) clearly spells out that the Charity Commissioner is required to give the reasons when he refuses to give the consent to file the suit. That a scheme like the one which is there under section 51(1) of the Gujarat Public Trust Act, 1950 was not under consideration before the Hon'ble Supreme Court. That there is no similarity of factual situation to apply the principle laid down by the Hon'ble Supreme Court in the aforesaid case to the facts of the present case. That for applying the said principle, there has to be similarity of facts and similarity of the provisions of the law. It is submitted that neither of the situation exists.
7.7 In view of the aforesaid submission, it was prayed to dismiss the petition.
8. I have heard learned counsels appearing for the Page 14 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024 NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined respective parties and perused the record. AS can be seen from the petition and more particularly, prayers made in the petition, what is sought to be challenged by way of this petition is the impugned judgment and order dated 8.8.2023 passed by the learned Joint Charity Commissioner, Ahmedabad in Application No.51/1/2023 whereby the Charity Commissioner has given consent to institute a civil suit. The petitioners have further prayed for declaring the aforesaid order to be unjust and improper and, therefore, the entire controversy is required to be seen in light of the above.
9. The legality and validity of the impugned order is required to be tested by taking into consideration the provisions of Sections 50 and 51 of the Gujarat Public Trusts Act read with Rule 27 of the Gujarat Public Trust Rules which are reproduced as under:-
"Section 50. Suits relating to Public Trusts :-
In any case- (i) where it is alleged that there is a breach of a public trust,
(ii) [where a direction is required to recover possession of a property belonging to a public trust] 94[or the proceeds thereof or for an account of such property or proceeds] from any person including a person holding adversely to the public trust, or
(iii) where the direction of the court is deemed necessary for the administration of any public trust, Page 15 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024 NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined the Charity Commissioner 95[after making such enquiry as he thinks necessary] or two or more persons having an interest in the trust and having obtained the consent in writing of the Charity Commissioner as provided in section 51 may institute a suit whether contentions 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:-
(a) an order for the recovery of the possession of such property 96[or proceeds thereof],
(b) the removal of any trustee or manager,
(c) the appointment of a new trustee or manager, [(cc) vesting any property in a trustee,]
(d) a direction for taking accounts and making certain inquiries,
(e) a declaration as to what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust,
(f) a direction authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged,
(g) the settlement of a scheme or variations or alterations in a scheme already settled, or
(h) granting such further or other relief as the nature of the case may require: Provided that no suit claiming any of the reliefs specified in this section shall be instituted in respect of any public trust except in conformity with the provisions thereof: 98[Provided further that the Charity Commissioner may, instead of instituting a suit, make an Page 16 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024 NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined application to the Court for a variation or alteration in a scheme already settled.] Section 51. Consent of Charity Commissioner for institution of suit :-
(1) If the persons having an interest in any public trust intend to file a suit of the nature specified in section 50, they shall apply to the Charity Commissioner in writing for his consent. The Charity Commissioner, after hearing the parties and after making such inquiry as he thinks fit, may within a period of six months from the date on which the application is made, grant or refuse his consent to the institution of such suit. The order of the Charity Commissioner refusing his consent shall be in writing and shall state the reasons for the refusal. (2) If the Charity Commissioner refuses his consent to the institution of the suit under sub-section (1) the persons applying for such consent may file an appeal to the Bombay Revenue Tribunal constituted under the BombayBombay Revenue Tribunal constituted under the Bombay Revenue Tribunal Act, 1939, in the manner provided by this Act.
(3) In every suit filed by persons having interest in any trust under section 50, the Charity Commissioner shall be a necessary party.
(4) Subject to the decision of the Bombay Revenue Tribunal constituted under the BombayBombay Revenue Tribunal in appeal under section 71, the decision of the Page 17 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024 NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined Charity Commissioner under sub-section (1) shall be final and conclusive."
Rule 27. Application under Section 51 :-
(1) Every application to the Charity Commissioner by persons having 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 suport of it and nature of the relief sought in the proposed suit.
(j) List of documents relied on.
(k) How tha applicants proposed to meet the costs of the suit.
(1) Particulars of applications, if any, under section 92 of the Civil Procedure Code, 1908, in regard to the trust made earlier by the applicants or to their knowledge by other persons, and the result thereof. Page 18 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024
NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined (2) The application shall, as far as possible, 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) Where the Charity Commissioner decides to hold an inquiry or to hear the trustees under sub-rule(3), and directs notices to be served upon the trustees and such persons as he deems fit, the applicants shall pay into the office of the Charity Commissioner the costs of serving such notices at the prevalent rate of charges for a registered letter (acknowledgment due), and shall furnish as many copies of the application as are required for service upon the said persons.
(5) In the case where Charity Commissioner grant 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."
10. The submissions made by learned counsel appearing for the respective parties are required to be considered in light of the above provisions of the Act. As far as the first submission of learned Senior Counsel Mr. Mihir Joshi is concerned, it was submitted by him that Section 51 of the Act provides that a person Page 19 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024 NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined having an interest in any public Trust who intends to file a suit of the nature specified in Section 50, shall apply to the Charity Commissioner in writing for his consent and, therefore, the submission was that the person seeking consent must be a person having interest in the Trust and, therefore, his locus is required to be examined. Secondly, it was submitted by learned Senior Counsel that applicant can apply for permission for variation or alternation of the Scheme of a Trust and not complete substitution of the scheme of the Trust and that it has to be adjudicated by Charity Commissioner that a direction is necessary for better administration of public Trust and only in such circumstances, the suit for variation or alteration or settlement of the Scheme can be filed. In the instant case, the person is seeking permission to file suit seeking direction to substitute the entire Scheme which is contrary to the provisions of law and, therefore, the impugned order is bad.
11. As far as the aforesaid submission is concerned, on perusal of the impugned order dated 8.8.2023 passed by the Charity Commissioner, I found that while exercising powers conferred upon him under Section 51, as far as the nature of inquiry he is required to carry out is construed, the learned Charity Commissioner has taken into consideration the decision of this Court in the case of Bipinchandra Purshottamdas Patel and others v. Jashwant Lalbhai Naik and another, 1974 (15) GLR 411 and has considered that there are three kind of inquiries depending upon the nature of different procedure. The first category of inquiry is in respect of Section 19, 22-A and 39 wherein inquiry is required to be conducted in a prescribed manner as prescribed under Rule 7 of the Rules is required to be conducted by Page 20 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024 NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined hearing the parties because, there the question regarding property right of persons and personal rights are concerned or a person is to be vested with civil consequences.
12. The Charity Commissioner by considering the aforesaid judgment and more particularly, paragraph 16 of the impugned order took a view that the application under Section 51 of the Act provides for an inquiry in a manner the Charity Commissioner deems fit and he is not bound to hold an inquiry in the prescribed manner as it is required in respect of inquiry related to provisions of Section 19, 20-A and 39. In view of the above view taken by the learned Charity Commissioner, this Court on perusal of the decision in the case of Bipinchandra Purshottamdas Patel (supra) found that in paragraph 12 of the aforesaid judgment, the Court observed as under :-
"12. Another significant feature to be noted in this context is that the scheme of the Act clearly indicates that there are three categories of cases referred to. First category relates to cases wherein hearing of the Parties and holding an inquiry in the prescribed manner is contemplated. In the second category of cases, hearing of parties and holding an inquiry in the manner the Charity Commissioner deems fit, is contemplated, and in the third category of cases, due opportunity of being heard is contemplated."
12.1 After making the aforesaid observations in paragraph 12, the Court in paragraphs 13 and 14 observed that the first category of cases falls under Section 19, 22A and 39 of the Act.
Page 21 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined Section 19 of the Act deals with the inquiry for registration of the Trust. Section 22A of the Act deals with further inquiry by the specified authority that any particular relating to any public trust which was not the subject matter of inquiry under Section 19 or sub-Section (3) of Section 22, as the case may be, and has remained to be inquired into Section 39 of the Act.
12.2 Thereafter, in paragraph 15 of the aforesaid judgment, the Court has considered that Rule 7 of the Rules is in respect of such formal inquiries which are required to be done in prescribed manner. The Court also held that the Act provides for separate procedure in respect of different Sections.
12.3 In paragraph 16 of the aforesaid judgment, the Court considered the provisions of Sections 28, 40, 51 and 54 and held that the Legislature has purposely made distinction in the procedure to be followed in the different inquiries to be made under the Special Act taking into account the nature of different proceedings.
13. Section 51 (1) reads as under :-
"Section 51. Consent of Charity Commissioner for institution of suit :-
(1) If the persons having an interest in any public trust intend to file a suit of the nature specified in section 50, they shall apply to the Charity Commissioner in writing for his consent. The Charity Commissioner, after hearing the parties and after making such inquiry as he thinks fit, Page 22 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024 NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined may within a period of six months from the date on which the application is made, grant or refuse his consent to the institution of such suit. The order of the Charity Commissioner refusing his consent shall be in writing and shall state the reasons for the refusal."
14. Rule 27 (3) of the Rules is reproduced as under :-
"(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."
15. If the aforesaid observations made by this Court in the case of Bipinchandra Purshottamdas Patel (supra) and relied upon by learned Charity Commissioner are considered in light of language of Section 51 (1) of the Act read with Rule 27 (3) of the Rules, even Section 51 (1) of the Act also provides that the Charity Commissioner after hearing the parties and after "making such inquiry as he thinks fit........" may within a period of six months from the date on which the application is made, grant or refuse his consent to institution of the suit. Further, if Rule 27 (3) is also considered, that provides that an absolute power is vested with the Charity Commissioner to decide the manner in which he wants to carry out inquiry as the words used are "as he deems fit" and not "in prescribed manner". Therefore, what is required to be considered and what not while carrying out an inquiry is completely left to the discretion and prudence of the Charity Page 23 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024 NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined Commissioner. However, a conjoint reading of Section 50, 51 of the Act and Rule 27 of the Rules provides that before granting consent, mandatory requirement is to hear the Trustee and in the instant case, that the requirement is fulfilled by the Charity Commissioner. Therefore, once the Charity Commissioner after holding the inquiry grants consent to institute the suit, for rest of the objections, the aggrieved party may raise before the Competent Court by raising objections and by defending / contesting the suit. Therefore, the aforesaid submission of learned Senior Counsel Mr. Mihir Joshi cannot be accepted and the same is rejected accordingly.
16. As far as the second submission of learned Senior Counsel Mr. Joshi is concerned, that there should be an adjudication by the Charity Commissioner to the effect that the direction is necessary for better administration of the Public Trust concerned and only in such circumstances, a suit for variation or alteration or settlement of the Scheme can be filed. So far as above submission is concerned, there also the plain reading of Section 51 (1) of the Act would indicate that what is sought from the Charity Commissioner is consent. The language of Section 51 of the Act provides that grant of consent to institute the Civil Suit after holding the inquiry is a natural consequences of Section 51. The Charity Commissioner is required to pass an order giving reasons only in case if he is refusing his consent. In that case only, he is obliged to give the reasons for refusal.
17. May be the legislative intent before the aforesaid Section 51 is that in case if the Charity Commissioner decides to refuse to grant the consent, in that case, that order can be Page 24 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024 NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined challenged before the Gujarat Revenue Tribunal by way of appeal under Section 71 of the Act. But the Act does not provide for any remedy against the grant of consent to institute the suit. I have the reason to believe that the Scheme of the Act is such because of the reason that in case if the Charity Commissioner grants permission to institute a suit, the aggrieved party will always get a chance to oppose the suit by contesting the suit. Further, Section 51 (3) also provides that in case if any suit is filed than the Charity Commissioner shall be a necessary party. The legislative intention behind that might be the fact that as Section 51 (1) does not provide that the Charity Commissioner must give reason for granting permission, the reasons for grant of permission can be put forward before the competent Court by the Charity Commissioner by filing reply in the suit or by appraising the Court about its stand, if required. As Section 50 or 51 does not give any power to the Charity Commissioner to adjudicate upon the issues mentioned in Section 50 and the competent authority to adjudicate upon the issues mentioned in Section 50 is a competent Civil Court, the Charity Commissioner is kept out of purview of Section 51 to give reasons for granting consent to institute the civil suit.
17.1 The same is because once based upon grant of consent by the Charity Commissioner, a suit is instituted the issues which are mentioned in Section 50 are required to be adjudicated by the competent Civil Court and therefore, while deciding an application under Section 51 of the Act, learned Charity Commissioner cannot form an opinion on the merits of the matter. Learned Charity Commissioner is required to consider the merit of the matter and give reasons only in case of refusal of consent because in that case, the Civil Court will not have an occasion to adjudicate upon the Page 25 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024 NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined subject matter of Section 50 and the order of the Charity Commissioner would be a subject matter of challenge before Gujarat Revenue Tribunal as per Section 71 of the Act. In the instant case, the Charity Commissioner has given cogent reasons as to why he is granting permission to institute the civil suit. The reasons given by the Charity Commissioner in the penultimate paragraph of the operative order is that as per Section 51 of the Act, all that is required to be seen by the Charity Commissioner is that whether the purpose for which the suit is being instituted and for which sanction is sought, falls within the subject matter of Section 50 or not. Therefore, the Charity Commissioner has considered the aforesaid aspect only. The learned Charity Commissioner has further specifically observed in the order that it is not within the purview of Charity Commissioner to go into the merits of the matter and to ascertain as to whether the relief sought in the plaint of the proposed civil suit can be granted or not as once he grants permission, the same would fall within the domain of a competent Civil Court as and when the suit is instituted. Therefore, even the second submission of learned Senior Counsel Mr. Mihir Joshi cannot be accepted.
18. As far as the rest of the submissions of learned Senior Counsel Mr. Mihir Joshi is concerned which are whether the subject matter of the suit is something which would fall within the purview of Section 50 of the Act or not or whether the perusal of the plaint would indicate that the same is aimed for substituting the Scheme, are all issues which would be looked into and adjudicated upon by the competent Civil Court once the suit is preferred once the suit is instituted but there also, it is always open for the petitioner to contest the suit and point out to the concerned Page 26 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024 NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined Court that the relief prayed for would not fall within the purview of Section 50 (g). It is for the competent Civil Court to decide whether to grant the relief in the suit or not and if yes, to what extent and, therefore, such aspects are rightly not considered by the Charity Commissioner while granting sanction under Section
51.
19. As far as the decision relied upon by the petitioner in the case of S. N. Mukherjee v. Union of India, (1990) 4 SCC 594 is concerned, the said decision is in respect of service jurisprudence. Therefore, the same is not applicable in the facts and circumstances of the case as the facts of the said case and the present case are entirely different. Further, the aforesaid decision is rendered in view of relevant provisions of Army Act, 1950 and the said Act is specially enacted for a disciplined army force i.e. Indian Army whereas the present case is in respect of Gujarat Public Trusts Act, 1950. When the purpose behind enacting both the Acts are entirely different, the interpretation of relevant provisions of different Sections of both the Acts are also required to be seen in light of the object of the Act and, therefore, decision rendered in respect of the provisions of the Army Act cannot be made applicable while interpreting Section 51 (1) of the Gujarat Public Trusts Act, 1950 which is a benevolent act whereas Army Act is an Act meant for disciplined force. Therefore, the aforesaid decision is not applicable in the facts and circumstances of the present case.
19.1 Further, though reliance is placed by learned Senior Counsel Mr. Mihir Joshi on the decision of this Court in the case of Hargovindbhai Dahyabhai Patel v. Prabhudas Raichand Page 27 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024 NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined Sanghani, 2000 (2) GLR 1003 (Supra), as according to Mr. Joshi, the Charity Commissioner has to satisfy himself that (i) it is a public charitable trust, registered under the Act, (ii) there is a prima facie good ground to file a suit and (iii) whether the proposed suit is not frivolous or vexatious. The Ld. Jt. Charity Commissioner had to adopt the judicial procedure for deciding this question while granting or rejecting the application is concerned, on perusal of the said decision in the case of Hargovindbhai D. Patel, this Court finds that the aforesaid petition was preferred against refusal to give consent to institute the suit. As the petitioner challenged the decision before the Gujarat Revenue Tribunal and as even Gujarat Revenue Tribunal also dismissed the appeal preferred by the petitioner, the aforesaid decision was challenged before this Court. In that decision, this Court had categorically observed that the function of Charity Commissioner in granting or refusing the permission is purely an administrative function and he may not go into the merits of the case as such except for the purpose of assessing the prima facie case.
19.2 In view of the above observation, when the function of the Charity Commissioner is purely administrative in nature, according to this Court, at the end of the inquiry that the Charity Commissioner may carry out, the Charity Commissioner is required to arrive at a subjective satisfaction to give consent for instituting a suit is in the interest of better administration of the Trust. He may not exactly use the word 'prima facie case' as the powers exercised by him are administrative in nature and, therefore, considering the aforesaid aspect in mind, that he is exercising administrative powers, the ratio of the decision in the case of Hargovindbhai D. Patel is required to be considered. In the instant case, I found that Page 28 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024 NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined learned Charity Commissioner has in the penultimate paragraph before the operative portion of the order has specifically stated that in view of the discussion made in the order, and more particularly, in paragraph 18 has categorically stated that the Scheme has been framed in the year 1939 and with passage of time for better administration of Trust, it is necessary to vary or alter the Scheme which is already settled which shows that he has arrived at a prima facie opinion that the consent as prayed for in institution of the suit is required to be granted. Therefore, reliance placed on the aforesaid judgment will not help the counsel for the petitioner.
20. Further, one of the issue that is required to be considered by this Court while considering an order passed upon an application under Section 51 of the Act read with Rule 27 is to what extent the Court can interfere with such order and under what circumstances. Keeping in mind the fact that the petition is preferred under Articles 226 and 227 of the Constitution of India, the aforesaid issue is required to be considered by keeping the aforesaid aspect in mind.
21. As stated above, in the foregoing paragraph, a conjoint reading of Sections 50 and 51 with Rule 27 would lead this Court to following conclusion :-
(i) In case if the consent to institute a suit is refused, it is mandatory for the Charity Commissioner to give reasons for such refusal. Such order shall be subject matter of challenge before the Gujarat Revenue Tribunal by way of appeal under Section 71 of the Act.Page 29 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024
NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined
(ii) In case if the Charity Commissioner grants consent to institute the suit, considering the fact that the Charity Commissioner would be a party to the aforesaid suit as it is a mandatory requirement in Section 51 (3) and also considering the fact that the application under Section 51 seeking consent to institute a suit can be granted only in respect of issues stated in Section 50 only and as Rule 27 also provides for giving hearing to the Trustees as well, the aggrieved party which is aggrieved by grant of consent to institute a suit can always contest the suit and oppose the relief prayed for before the competent Civil Court.
22. In both the eventualities, the Tribunal and concerned Civil Court as the case may be, is empowered to consider the merits of the matter and, therefore, looking to the provisions of the Act and more particularly, the provisions of Sections 50, 51 and Rule 27 of the Rules, in a writ petition the Court has a very limited power to interfere with the decision of the Charity Commissioner.
22.1 I am saying so because Section 51 read with Rule 27 provides for an inquiry by the Charity Commissioner as he deems fit and does not prescribe for any procedure. A proviso to Sub-Rule (3) of Rule 27 also provides that before granting such consent to institute the suit, he must give the Trustees an opportunity of being heard and, therefore, a conjoint reading of Section 51 and Rule 27 would provide for an inquiry by the Charity Commissioner in a manner in which he deems appropriate and give an opportunity to the Trustees in respect of such application and then only he can decide whether to grant consent to institute the suit or not. That the nature of inquiry is not "in a prescribed manner", the same would be based on the discretion of the Charity Commissioner and, Page 30 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024 NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined therefore, upon carrying out such inquiry and upon hearing the Trustees, it is a matter of subjective satisfaction of the Charity Commissioner to grant consent to institute Civil Suit or to refuse it by giving reasons. Therefore, considering the fact that in both the eventualities, one in case if the consent is granted, second in case if the consent is refused by giving reasons, the aggrieved party will have an opportunity to challenge the order under Section 71 before the Gujarat Revenue Tribunal or to oppose the suit before the Civil Court and, therefore, all that is required to be seen by this Court is to see that whether the procedure prescribed under Section 51 read with Rule 27 is followed by the Charity Commissioner or not as his decision is based on subjective satisfaction. Further, what the Court can examine under Article 226 is that whether the Charity Commissioner has examined or not the fact that whether the subject for which the consent to institute the suit is sought, pertains to the issues stated in Section 50 or not.
23. Despite having wide powers under Article 226 of the Constitution of India, this Court is not required to consider merits of the matter simply for the reason that in both the eventualities of grant or refusal of the consent, it is for the competent Forum to consider the merits of the matter after providing opportunity to all the parties and, therefore, if this Court enters into the merits of the matter and discusses the same, the same may influence the proceedings before either forum and, therefore, all that is required to be considered in this petition or in a petition challenging the order giving consent to institute the suit by this Court under Article 226 are the following aspects :-
(i) Whether the Charity Commissioner has examined as to Page 31 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024 NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined whether the issue for which the suit is sought to be instituted pertains to subject matter of Section 50 or not ?
(ii) Whether the Charity Commissioner has carried out any inquiry as he deems fit or not ?
(iii) Whether he has based upon the inquiry considered that he has to form a prima facie opinion at the inquiry that in case if the consent is granted to institute the suit, is in the interest of the better administration of the Trust or not ?
(iv) Whether the Trustees of the Trust were heard by the Charity Commissioner or not ?
24. In the instant case, as the Charity Commissioner has fulfilled all these procedural requirements, I do not deem it appropriate to interfere with the impugned order passed by the Charity Commissioner. It is clarified that this Court has not gone into the merits of the matter though submissions were made on merits of the matter by both the sides and, therefore, all the rights and contentions of the sides are kept open to agitate all the grounds before the Civil Court as and when the suit is instituted and it is further clarified that the Civil Court shall not be influenced by any of the observations made on merits either by the Charity Commissioner or by this Court.
25. In view of the above as well as on perusal of the impugned order, I do not see that the learned Charity Commissioner has committed any error while passing the impugned order dated 8.8.2023 and thereby granting consent Page 32 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024 NEUTRAL CITATION C/SCA/17235/2023 JUDGMENT DATED: 22/04/2024 undefined under Section 51 of the Act read with Rule 27 of the Rules to the present respondents for instituting the civil suit. Accordingly, the present petition is required to be dismissed and the same is dismissed. Rule is discharged. There shall be no order as to costs.
Sd/-
(NIRZAR S. DESAI,J) SAVARIYA Page 33 of 33 Downloaded on : Wed Apr 24 01:02:29 IST 2024