Supreme Court - Daily Orders
Acharya Tejendraprasadji ... vs The Charity Commissioner Commissioner on 20 September, 2021
Bench: Hemant Gupta, V. Ramasubramanian
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5909 OF 2021
(Arising out of SLP(C)No.15802 of 2015)
Acharya Tejendraprasadji Devendraprasadji & Anr. ... Appellants(s)
Versus
The Charity Commissioner & Ors. ... Respondent(s)
With
CIVIL APPEAL NO.5910 OF 2021
(Arising out of SLP(C)No.34662 of 2015)
ORDER
Leave granted.
2. Aggrieved by a detailed order passed by the High Court of Gujarat at Ahmedabad, refusing to terminate the proceedings in two first appeals arising out of a Scheme decree passed in respect of a temple governed by the Bombay Public Trusts Act, 1950, despite the appellants seeking to withdraw the appeals, the appellants before the High Court have come up with the present SLP.
3. We have heard the learned counsel appearing for the parties and the learned counsel appearing for the intervenors. Signature Not Verified
4. Digitally signed by R Natarajan The Charity Commissioner of the State of Gujarat filed a suit Date: 2021.09.22 17:26:59 IST Reason:
in Civil Suit No.533 of 1962 on the file of the Ahmedabad City Civil 2 Court praying inter alia, (i) for the removal of defendantstrustees;
(ii) for the appointment of new trustees in their place; (iii) for accounts; and (iv) for framing of a new scheme in the place of the existing one. The religious head of the Trust namely Swaminarayan Temple and its Acharya were arrayed as the 1st defendant and the members of the Scheme Committee appointed from time to time and the Mahants nominated as members of that Scheme Committee by the then Acharya were impleaded as the other defendants.
5. On 03.05.1978, the City Civil Court, Ahmedabad passed a preliminary decree, (i) setting aside the sale of certain lands by the Acharya; (ii) permitting the Trustees to take steps for restoration of possession of those properties; and (iii) directing the Charity Commissioner to submit a draft Scheme in the light of the observations contained in the judgment. The preliminary decree also permitted the defendants to submit their objections to the draft Scheme and directed the Scheme to be finalised after hearing both sides in due course.
6. It appears that the Charity Commissioner filed a draft Scheme to which the defendant no.1/2 filed objections. The other 3 defendants (numbering 42) did not file any objections to the proposed Scheme.
7. A preliminary objection was raised by defendant no.1/2 that since the preliminary decree is under appeal before the High Court, the Scheme cannot be finalised till the final disposal of the appeal.
8. But overruling those objections, the City Civil Court passed a final decree on 29.06.1979 framing a Scheme for the administration of the Temple and for the management of the properties pertaining to the temple.
9. Challenging the final decree and the scheme framed therein, two separate appeals in first appeal nos. 1090 & 1374 of 1979 were filed by the Acharya and his supporters. Later the appellants in those first appeals filed applications in the year 2012 for the withdrawal of the first appeals unconditionally. But the applications for withdrawal were dismissed by the High Court by an order dated 20.07.2012. It is relevant to note that the withdrawal was also opposed by intervenors who had filed applications for impleadment.
10. Challenging the order dated 20.07.2012 passed by the High Court refusing to allow the withdrawal of the first appeals, a SLP was filed in SLP(C)No.27929 of 2012. When the SLP came up for hearing, affidavits were filed by the appellants in the first appeals 4 before the High court, assuring that after the withdrawal of the first appeals, they will not apply for modification of the Scheme decree. On the basis of those affidavits, this Court was satisfied that the appellants before the High Court wanted to abide by the Scheme decree without pursuing the first appeals and without reserving liberty to seek modification of the Scheme before the Charity Commissioner. Therefore, by an order dated 22.11.2013, this Court set aside the order of the High Court dated 20.07.2012 and permitted withdrawal of the first appeals. It may be useful to extract the operative part of the order of this Court dated 22.11.2013 which reads as follows: “... ... ...
Therefore we permit the SLP to be withdrawn with this undertaking. The first appeal no.1090 of 1979 filed by Mr. K.P. Pandey and first appeal no.1374 of 1979 filed by Mr. K.C. Choudhary are permitted to be withdrawn. In view of the withdrawal of first appeal no.1090 of 1979 and first appeal no. 1374 of 1979, the judgment rendered by the High Court is also liable to be set aside and is accordingly set aside.
The SLP is dismissed as withdrawn.”
11. Despite the above order of this court, the High Court of Gujarat listed the appeals for hearing on 13.02.2014 along with the applications for withdrawal. On that date a note was filed by the learned counsel appearing for the appellants, submitting that the 5 proceedings stood terminated in view of the permission granted by this Court for the withdrawal of the appeals. But the High Court proceeded to hear arguments on the question of withdrawal and thereafter passed a detailed order dated 05.03.2015. By the said order, the High Court permitted the original appellants to withdraw the appeals, but decided to proceed with the hearing of the appeals on merits, on the ground that the rights of other parties are also involved. After holding so, the High Court directed the appeals to be listed for further hearing on 17.04.2015.
12. It is against the aforesaid order dated 05.03.2015 of the High Court refusing to terminate the proceedings on the basis of the withdrawal of the first appeals, that the appellants have come up with the above appeals.
13. The view taken by the High Court in its order dated 05.03.2015 is that the proceedings in the appeals cannot be terminated merely because of the withdrawal of the appeals by the appellants, since the rights of 3rd parties are also involved. But such a view may not be correct due to the following reasons:
(i) This Court, by its order dated 22.11.2013, which we have extracted above, has permitted in no uncertain terms, the 6 withdrawal of the appeals. Thereafter it is not open to the High Court to proceed with the hearing of the appeals.
(ii) The procedure sought to be adopted by the High court, namely to hear the appeals in the interest of third parties, despite the appellants seeking to withdraw them, is possible only in two circumstances namely, (a) when there are cross objections, which can independently proceed in terms of Order XLI Rule 22(4) CPC; or
(b) when a transposition takes place in terms of Order XXIII Rule 1A CPC. In this case, there were no cross objections and hence Order XLI Rule 22(4) has no application. There was also no transposition and hence 3rd parties cannot seek to continue the appeals;
(iii) Proceedings for the framing of a Scheme for the administration of a Trust are no doubt proceedings in rem. Therefore, up to the stage of passing of the final decree approving a Scheme, even 3rd parties are entitled to intervene and object to the whole or part of the Scheme. But once the final decree approving the Scheme is passed, any person objecting to the final decree should independently file an appeal and cannot ride piggyback on the appellants’ shoulders. If they choose to do so they have to fall once the appellants withdraw the appeals;
(iv) In any case it was the appellants before the High Court who have given an undertaking to this Court at the time of hearing of SLP(C)No.27929 of 2012 that they shall not move the Charity Commissioner for modification or variation of the Scheme. Such an undertaking is not binding on third parties. Therefore, it is not as though the rights of 3rd party intervenors are completely obliterated. They always have their own remedies in law and they cannot insist 7 upon their grievances being addressed to in the appeals filed by the appellants herein.
14. In view of the above, the appeals are allowed. The impugned order of the High Court dated 05.03.2015 is set aside. The appeals in First Appeal nos. 1090 and 1374 of 1979 on the file of the High Court of Gujarat at Ahmedabad shall be treated as having been dismissed as withdrawn, terminating thereby the entire proceedings before the High Court. With a view to clear the air of doubt we declare that first appeal nos. 1090 and 1374 of 1979 on the file of the High Court of Gujarat at Ahmedabad, are no longer pending before the High Court to be listed for hearing or for any other purpose.
15. All applications, including intervention application, are dismissed.
16. There will be no order as to costs.
...................................J. (Hemant Gupta) ....................................J. (V. Ramasubramanian) New Delhi September 20, 2021 8 ITEM NO.37 Court 11 (Video Conferencing) SECTION III S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) No(s). 15802/2015 (Arising out of impugned final judgment and order dated 05-03-2015 in FA No. 1090/1979 30-11-2013 in FA No. 1090/1979 passed by the High Court of Gujarat at Ahmedabad) ACHARYA TEJENDRAPRASADJI DEVENDRAPRASADJI & ANR. Petitioner(s) VERSUS THE CHARITY COMMISSIONER & ORS. Respondent(s) (IA No. 4/2016 - Application for impleadment/intervention, IA No. 2/2015 - EXEMPTION FROM FILING STATEMENT OF CASE, IA No. 3/2016 - PERMISSION TO FILE ANNEXURES) WITH SLP(C) No. 34662/2015 (III) Date : 20-09-2021 These matters were called on for hearing today. CORAM :
HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE V. RAMASUBRAMANIAN For Petitioner(s) Mr. Mukul Rohatgi, Sr. Adv.
Mr. SN Shelat, Sr. Adv.
Mr. Mahesh Agarwal, Adv.
Mr. Mitul Shelat, Adv.
Mr. Ankur Saigal, Adv.
Mr. Rishabh Parikh, Adv.
Mr. Abhinav Garg, Adv.
Mr. E.C. Agrawala, AOR Dr. Abhishek Manu Singhvi, Sr. Adv. Mr. Huzefa Ahmadi, Sr. Adv.
Mr. Mahesh Agarwal, Adv Mr. Ankur Saigal, Adv.
Mr. Rishabh Parikh, Adv.
Mr. Abhinav Garg, Adv Mr. E.C. Agrawala, AOR For Respondent(s) Ms. Hemantika Wahi, AOR Mr. Mehul Shah, Sr.Adv.
Mr. Haresh Raichura, AOR Saroj Raichura, Adv.
Mr.Kalp Raichura, Adv.9
Mr. Ram Bhadauria, Adv.
Mr. H.M Parikh, Sr. Adv.
Mr. Bhargava V Desai, AOR
Mr. Hemang parikh, Adv.
Mr. Rasesh Parikh, Adv.
Ms. Aditi Diwan, Adv.
Mr. Shivam Jasra, Adv.
Mr. Shyam Divan, Sr. Adv.
Mr. Pradhuman Gohil, Adv.
Ms. Taruna Singh Gohil, AOR
Ms. Ranu Purohit, Adv.
Ms. Tanya Srivastava, Adv.
Ms. Jasleen Bindra, Adv.
Mr. Tushar Mehta, SGI
Mr. A P Mayee, AOR
UPON hearing the counsel the Court made the following O R D E R Leave granted.
The appeals are allowed in terms of the signed order. All applications, including intervention application, are dismissed.
(SWETA BALODI) (RENU BALA GAMBHIR)
COURT MASTER (SH) COURT MASTER (NSH)
(Signed order is placed on the file)