Uttarakhand High Court
Akhilesh Kumar Singhal And Others vs Naveen Porwal And Others on 27 June, 2016
Author: Servesh Kumar Gupta
Bench: Servesh Kumar Gupta
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Appeal from Order No. 208/2016
Akhilesh Kumar Singhal & Others ........Appellants
Versus
Naveen Porwal & Others ....Respondents
Mr. Piyush Garg, Advocate, for the plaintiffs/appellants.
Mr. Arvind Vashistha, Sr. Advocate, assisted by Mr. Vivek Pathak,
Advocate for the defendants/respondents.
Mr. Siddhartha Singh, Advocate, for the respondents 6, 7, 8 and 14.
With
Civil Revision No. 55/2016
Akhilesh Kumar Singhal & Others ........Revisionists
Versus
Naveen Porwal & Others ....Respondents
Mr. Piyush Garg, Advocate, for the plaintiffs/revisionists.
Mr. Arvind Vashistha, Sr. Advocate, assisted by Mr. Vivek Pathak,
Advocate for the defendants/respondents.
Mr. Siddhartha Singh, Advocate, for the respondents 6, 7, 8 and 14.
Appeal from Order No. 294/2016
Naveen Porwal & Others ........Appellants
Versus
Akhilesh Kumar Singhal & Others ....Respondents
Mr. Arvind Vashistha, Sr. Advocate, assisted by Mr. Vivek Pathak,
Advocate for the defendants/appellants.
Mr. Piyush Garg, Advocate, for the plaintiffs/respondents.
Mr. Siddhartha Singh, Advocate, for the respondents 6, 7, 8 and 14.
Judgement reserved on : 09.6.2016
Judgement delivered on : 27.6.2016
Hon'ble Servesh Kumar Gupta, J.
At the outset, it would be pertinent to mention that since both the appeals and the revision, titled above, have arisen out of the same order dated 16.4.2016 2 rendered by the District Judge, Dehradun, hence are being taken up together for adjudication.
By the impugned judgment, the Court below rejected the application 136C seeking appointment of the receiver on the property of the Suit No. 11/2014 and disposed of the application 6C in terms of laying down as many as 12 sanctions for the management of the trust, but did not like to intervene in the functioning of Naveen Porwal and his four other associates representing themselves to be the trustees and running the administration thereof. These associates are Daya Ram Rayal, Krishan Avtar Gupta, Anil Kumar Gupta and Rangi Lal Sharma. So feeling aggrieved, the plaintiffs Akhilesh Kumar Singhal and his other associates, who are none but in some way or the other are the near or distant relatives of deceased equipoised saint Swami Dayanand Saraswati, who founded the trust popularly known as Kailashanand Mission Trust for many a public charitable and religious purposes including opening and running of the schools, hospitals, etc. for the good of the general public.
A preliminary objection was raised by the learned Sr. Counsel of Mr. Naveen Porwal that against the order rejecting the application for the appointment of receiver, not a revision but an appeal should have been filed. On such an objection, Mr. Piyush Garg moved an application CLMA No. 5728/2016 on behalf of the revisionists Akhilesh Kumar Singhal & others. It was prayed in this application that in case, if it is found that the revision is not maintainable, then the memo of revision be treated as an appeal. Learned Counsel has relied upon the judgment of Hon'ble Apex Court rendered in Nawab Shaqafath Ali Khan v. Nawab Imdad Jah Bahadur & Ohers, and other connected matters, (2009) 5 SCC 162, wherein it 3 was held that if the High Court had the jurisdiction to entertain either an appeal or a revision application or a writ petition under Articles 226 and 227 of the Constitution of India, in a given case it, subject to fulfilment of other conditions, could even convert a revision application or a writ petition into an appeal or vice versa in exercise of its inherent power. Indisputably, however, for the said purpose, an appropriate case for exercise of such jurisdiction must be made out.
I allow the aforementioned application and treat this civil revision as an appeal.
Facts of the case, in brief, are that the deceased Swami was basically a Kanpur based lawyer, but at some later point of time, he renounced the worldly affairs and became a Sanyasi and thus entered in the transcendental life. Sawmiji, by the dint of his prowess and adroitness, collected huge funds in the United States of America inasmuch as he was awarded the status of Non-resident Indian and most of the time, he lived there. By the funds so collected, he founded the said Kailashanand Mission Trust in Rishikesh. This trust (mission) has many a multi- storied buildings in Rishikesh and Mussorriee towns. He used to visit India to look after the management and functions of the trust and, in fact, as is revealed from the testimonials, all the aforenamed persons, viz. Naveen Porwal and his associates, were in the services of the trust either as a clerk or cook or accountant or even as manager to look after and make all the arrangements of the properties of the trust. Swamiji breathed his last on 6.5.2011 at the age of 97 years, because in O.S. No. 44/1996, his statement was recorded on 7.8.2005, wherein he had disclosed his age as 91 years. So, obviously he should not be less than 97 years when he 4 passed away in the year 2011. After his demise, since all these persons used to look after the whole mission as and when Swamiji resided in U.S.A., the circumstances became more suitable and favourable for them to declare themselves to be the absolute controller of the whole affairs of the mission. In order to justify their position of such control over the trust, they have produced not one or two deeds, but several trust deeds, which were purportedly written by late Swamiji in their favour. On the other hand, Akhilesh Kumar Singhal and others, since are near or distant relatives of Swamiji or few of them may be in the tenancy of the various shops within the precincts of such mission trust buildings, also came forward seeking their control over the whole mission. The reason is obvious i.e. because such mission is the owner of massive wealth to the tune of hundreds of crores of rupees besides the buildings, land, shops, guesthouses. Among Mr. Akhilesh Kumar Singh and others, though many of them resided in foreign countries, but still manifesting their local addresses, they produced several deeds in their favour which were purportedly written in the presence and under the signatures of late Swamiji making them the trustees.
Mr. Porwal has also filed A.O. No. 294/2016 challenging the sanction no. (ix), which is the part of the impugned order dated 16.4.2016, whereby it was directed that Mr. Porwal and others will not be able to draw rupees two lakhs or more at a time without the permission of the court and 6C application was disposed of by the learned court below imposing this restriction along with other barriers to prevent the misuse/abuse of the properties of the trust.
Learned Counsel of Mr. Singhal has urged that since such trust is having several crores of rupees either in 5 the form of TDRs or the cash in the bank accounts, so imposing this much condition will not be sufficient to put the check on Mr. Porwal and his associates from abusing the cash money owned by the trust because under the garb of this clause, they may withdraw a little less than rupees two lakhs as many times as they wish in a day or two or in a week or month and no upper cap has been fixed by the court below in this regard. That apart, there are several donation boxes which are kept in the multi- storeyed buildings wherefor the money cannot be accounted without an independent and honest person.
Learned Counsel of Mr. Porwal has resisted both the appeals by way of filing the counter affidavit, which runs in thousands of pages covered in four volumes and, at the same time, has moved an application that additional evidence so produced by him should be taken on the record. With the consent of both the parties, it was observed by this Court that such an application shall be considered at the time of writing the judgment in the present controversy.
I feel that since most of the papers, which have been enclosed with the counter affidavit, were never brought before the trial judge prior to hearing and passing the impugned order, so it would not be appropriate for this Court to apply its judicious mind on the veracity and genuineness of such papers. It is for yet another reason that these appeals revolve basically on the question of appointment of receiver. Therefore, here in the High Court, a mini trial cannot be permitted between the parties within the trial which is in the shape of Original Suit No. 11/2014, wherein both the parties shall have full opportunity to lead their evidence and make the cross- examination on each and every point from the witnesses 6 produced by either sides. Without testing all such papers on the anvil of cross-examination, these cannot be relied upon. At the most, these can be looked into prima facie. So, I dispose of the application moved by Mr. Porwal and his associates in the aforesaid terms.
Learned Sr. Counsel on behalf of Mr. Porwal submitted during the course of arguments that if the Court so pleases, the sanctions imposed by the District Judge in the impugned order may be made more stringent, but in any case the receiver should not be appointed.
I feel it difficult to understand that if the intentions of Mr. Porwal and his associates are so honest and clear, then why they are resisting so tooth and nail for the appointment of receiver. It is evident that Section 92 CPC permission to launch the Original Suit was also resisted and the judgment and order dated 2.6.2014, passed by the learned District Judge granting such permission, was vehemently opposed by filing the Civil Revision No. 81/2014 before this Court and vide order dated 17.11.2014, such revision was dismissed. The order passed by this Court in Civil Revision remained maintained by the Hon'ble Apex Court and no infirmity in such order was found and it was affirmed. However, certain interim reliefs granted by this Court in order to protect the property were set aside leaving it open for the parties to agitate the said matter before the learned Trial Court and, the said interim reliefs/restrictions were allowed to remain in force for two weeks only.
It has been argued by the learned Counsel of Mr. Singhal that taking advantage of the above order, after the lapse of two weeks, Mr. Porwal and his associates withdrew huge funds from the savings bank accounts and the TDRs of the mission because such matter could not be 7 got decided within two weeks from 21.8.2015, the day when the order was passed by the Hon'ble Apex Court in Civil Appeal No. 6530 of 2015 (SLP No. 209/2015) and they remained free to misuse/abuse all those funds till the impugned order dated 16.4.2016 was passed by the Court below, but in such order, too, since there was no upper cap in the sanction no. (ix), hence they are still abusing/misusing the funds of the trust by withdrawing a little less than rupees two lakhs as many times as they wish to withdraw in a day or two days or a week and so on.
Learned Counsel of Mr. Singhal has also produced several papers including the photographs
showing the residential houses and hotels of Mr. Porwal and his associates which they personally own in Rishikesh. I have glanced all such photographs, which are Annexure No. 18, showing the residential house of Mr. Ratnesh Gupta, Mr. Arvind Rathore, Mr. Navin Porwal and the hotel owned by Mr. Rangi Lal Sharma in the name and title of Orien Residency. In fact, all these buildings are very palatial and it is difficult for even a mediocre businessman, much less for a serviceman, to erect such palatial, sprawling buildings and hotels from the accounted income. It was submitted on behalf of the defendants that all these buildings are in the name of their wives and brother and the hotel is in the name of brother of Rangi Lal Sharma. This contention prima facie does not satisfy the Court for the reason that no independent income has been shown enabling any person to erect such palatial buildings of the residential houses. Mr. Porwal and his associates are consuming their whole time in the services of the trust, so it can be discerned that they must not be running any big business to earn the crores of rupees, which are required to erect such buildings. Therefore, prima facie, it gives the 8 impression that the money which was used in purchasing the vast land and erecting these palatial buildings and the hotels thereon in the posh areas of town Rishikesh (as it seems to be) cannot otherwise be made out except than the siphoning of the funds from the properties of the trust.
This Court is not supposed to scrupulously analyse, like a Chartered Accountant, to each and every donation received from the abroad through electronic media as well as the donations given by the persons who visit the temples under the management of the trust, much less the cash which is donated by lakhs of visitors in the donation boxes which remain under the lock and key and under the control of Mr. Porwal and his associates. So, there is every chance of misusing and squandering of such funds for their personal gains and benefits.
On the other hand, the character of Mr. Singhal and his associates is also not transparent and beyond doubt. The paper brought on the record show that they have been involved in several litigations with the deceased Swamiji during his lifetime on the question of properties of his trust. So, their claim that they are the trustees of such mission is also unfounded and is not beyond the dishonest intentions but which are certainly to grab the properties. Grabbing even a little chunk of such property can make them billionaire.
In the above circumstances, I feel that the appointment of the receiver is indispensable in order to protect the whole mission and the huge properties of this charitable and religious public trust, which was founded for the benevolent purposes and for the good of the public at large and the society. But instead of achieving its true goal, the entire properties of such trust have imminently become vulnerable to easy excess and 9 abuse/misuse/squander at the hands of Mr. Porwal and his associates Looking to the magnitude of the whole mission and its properties, I feel that the appointment of one receiver will not serve the purpose. Therefore, a panel of receivers should be there, which should not include any of the persons either Mr. Porwal and his associates or Mr. Singhal and his associates or any of the respondents.
Accordingly, I appoint the panel of three receivers as under:
(i) Prof. Ajeet Singhal, Principal, Government P.G. College, Rishikesh/Director, Higher Education, Uttarakhand (retired), presently R/o 104/43, Dehradun Road, Behind Petrol Pump, Rishikesh (Mobile No. +91 9560130404, 9412012425, 9958130687).
(ii) Mr. Prakash Chandra Dimri, Advocate, Practising at Rishikesh itself (Mobile No. +91 9411113821).
(iii) Mr. Rameshwar Gaur, Journalist, R/o Balaji Enclave, near Sai Wedding Point, Prem Vihar Colony, Haripur Kalan, Haridwar (Uttarakhand) [Mobile No. +91 9319027529, 9411111962].
The terms and conditions shall be as under:
(i) Prof. Ajeet Singhal will be the Receiver. He shall visit the trust at least on every alternate day and will look after the whole arrangements of the mission and its properties (movable and immovable including the cash, TDRs, donation boxes, etc.). He shall be entitled to take rupees thirty thousand per month as his honorarium from the mission.
(ii) Mr. Prakash Chandra Dimri shall be the Associate Receiver. He will have control over the day-to-day affairs of the mission and its entire properties. Since he will be the new incumbent, hence he may (if so desires, but 10 not necessarily) take the assistance of Mr. Porwal and his associates, wherefor they or any of them may be paid appropriately at the discretion and under the permission of the Receiver. Associate Receiver will visit the head office of the mission in Rishikesh everyday and shall stay there at least for an hour and, if it is suitable to him, he may spent any period of time in all the working days or in the holidays at his convenience. He will be entitled to receive rupees forty thousand every month as remuneration from the mission.
(iii) Mr. Rameshwar Gaur shall be Assistant Receiver, who will have at least two visits in a week and will play the active role in controlling the affairs and management of the mission in coordination and under the guidance of Receiver. He will be paid rupees thirty-five thousand per month.
(iv) Mr. J.P. Joshi, Senior Advocate, High Court of Uttarakhand, Nainital, shall be the Patron. He shall render his advice/assistance/aid in every legal matters/disputes of the mission. He shall visit the mission at Rishikesh at least once in every fortnight. He shall be entitled for reimbursed of taxi fair and the rail tickets up to the AC Fist Class, as is suited to him, besides rupees twenty thousand every month as honorarium/retainership from the mission.
(v) All the cash, TDRs will be dealt with under the joint signatures of any two receivers.
(vi) For day-to-day functioning, if cash is needed, then up to rupees two lakhs can be withdrawn under the joint signatures of any two receivers.11
(vii) All the sanctions imposed by the learned District Judge in the impugned order shall remain in force for these receivers as well.
(viii) All the cash in the donation boxes shall be opened periodically in the presence of at least two receivers aforenamed and the proper accounts shall be maintained for all the cash found in such boxes and the same will be put for assessment by a Chartered Accountant, who shall be appointed after the mutual consultations of any two receivers.
(ix) Any of the two aforenamed receivers with the joint signature and consensus (of any two receivers) will be at liberty to appoint any new person or terminate the service of any existing employee, whose fidelity to the institution they feel doubtful or work evading, or replace him from one assignment to another or reward or punish him in any manner within legitimate manners.
(x) If the receivers feel to do some act beyond the conditions laid down in the impugned order dated 16.4.2016, they will be free to do so after obtaining permission of the District Judge, Dehradun, before whom the Original Suit is pending.
(xi) Till the charge is finally handed over to the receivers appointed by this Court, SDM, Rishikesh shall put his seal on the locks of all the donation boxes in order to ensure that these may not be henceforth opened by Mr. Naveen Porwal and his associates.
(xii) Since there may be danger to the life and liberty of the receivers appointed by this Court on account of taking charge of the huge properties of the mission, hence, SSP, Dehradun shall provide the adequate Security to every receiver, if they apply for the same. Cost thereof shall be borne from the funds of the trust.
12It may be discerned that since the trust is the owner of several crores of cash as well as many a buildings, as indicated above, hence there may be every possibility that Mr. Porwal and his associates may create any type of hindrance and impediment in handing over the charge to the receivers. In that eventuality, I direct the District Magistrate and the Senior Superintendent of Police, Dehradun, to issue the necessary directions to the concerned SDM and the Circle Officer for maintaining the law and order at the spot and to also make it certain that charge of whole mission is handed over in the hands of receivers amicably.
Since Mr. Porwal and his associates may take some time in making the compliance of the directions of this Court, hence I prohibit them henceforth not to open even a single donation box and not to withdraw any amount from the bank accounts of the mission. Nay, they shall also remain restrained to make expenses for litigation henceforth from the funds of the mission.
In view of what has been set forth above, I dismiss the AO No. 294/2016 filed by Mr. Naveen Porwal & others, and allow the AO No. 208/2016 and the CLR No. 55/2016 (now converted as an appeal) filed by Akhilesh Kumar Singhal & others in the above terms.
Impugned order dated 16.4.2016 stands modified accordingly.
Registry will immediately send the certified copy of this judgment to the District Magistrate and SSP, Dehradun and the SDM, Rishikesh through Chief Judicial Magistrate concerned who will ensure its compliance and will inform to this Court by return FAX.
13Certified copy be sent to all the receivers by the Registry through special messenger.
Certified copy of this judgment shall be issued to learned Counsel for the parties today itself, if they so desire, on their expenses.
Registry will also provide certified copy of this judgment to each of the aforenamed receivers and the patron free of cost.
(Servesh Kumar Gupta, J.) Prabodh