Gujarat High Court
Gondaliya Himatramji Hariramji vs Charity Commissioner on 13 October, 2020
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/12200/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12200 of 2020
================================================================
GONDALIYA HIMATRAMJI HARIRAMJI
Versus
CHARITY COMMISSIONER
================================================================
Appearance:
MS SANGEETA PAHWA FOR THAKKAR AND PAHWA ADVOCATES(1357)
for the Petitioner(s) No. 1,2,3,4,5
MR SOAHAM JOSHI, AGP FOR THE RESPONDENT(S)-STATE
for the Respondent(s) No. 1,2,3
================================================================
CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 13/10/2020
ORAL ORDER
1. Heard learned advocate Ms.Sangeeta Pahwa appearing for Thakkar And Pahwa Advocates for the petitioners and learned Assistant Government Pleader Mr. Soaham Joshi for the respondent State through video conference.
2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioners have prayed for the following reliefs:
"(A) YOUR LORDSHIPS may be pleased to issue a writ of certiorari, or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 17.05.2019 passed respondent no. 1 and order dated 17.07.2019 passed by respondent no. 3 as being arbitrary, illegal, null and void.Page 1 of 11 Downloaded on : Mon Mar 01 14:03:23 IST 2021 C/SCA/12200/2020 ORDER
(A) YOUR LORDSHIPS may be pleased to stay the implementation, operation and execution of order dated 17.05.2019 passed respondent no. 1 and order dated 17.07.2019 passed by respondent no. 3,pending the admission, hearing and final disposal of this petition;
(B) YOUR LORDSHIPS may be pleased to direct the respondents to appoint manager/pujari in the Mahadev Ni Jagya Trust, pending the admission, hearing and final disposal of this petition;
(D) YOUR LORDSHIPS be pleased to grant such other and further reliefs as may be deemed fit by this Hon'ble Court, in the interest of justice;"
3. The brief facts of the case are as under : 3.1 The Petitioners have filed Scheme Application No.2 of 2019 for framing Trust Scheme and to appoint the trustee in the "Mahadev Ni jagya" to manage the Mahadev ni jagya (Known as Nilkanth Mahadev Trust, Shetrunjay Hill, Palitana) under the provisions of section 50A of the Bombay Public Trust Act,1950 (for short 'the Trust Act').
3.2 It is the case of the petitioner that on 13.8.1953, Government of Saurashtra passed an order delegating powers to Assistant/Dy. Collector to appoint Pujari of village temple in consultation with the village people and vide order dated 3.8.1958, Assistant Collector Officer appointed Page 2 of 11 Downloaded on : Mon Mar 01 14:03:23 IST 2021 C/SCA/12200/2020 ORDER Trikambharti Gopalbhartison of Gopalbharti Rambharti as Pujari of Mahadev ni jagya (Known as Nilkanth Mahadev).
3.3 It is the case of the petitioners that thereafter one Shri Hirapuri Ganeshpuri made an application on 31.5.1958 for registration of "Mahadev ni jagya" Shetrunjay Hill, Palitanaas as a public Trust. On 17.5.1965 trust was registered vide registration no.1176 as "Mahadev ni jagya"
Shetrunjay Hill, Palitana. Shri Hirapuri Ganeshpuri was appointed as manager and Pujari of the trust.
3.4 Thereafter on 16.2.1975, Pujari Shri Hirapuri Ganeshpuri expired. Thereafter respondent no.2 has not made any appointment of Pujari and Manager in the Mahadev ni Jagya Trust and therefore in the year 2015,Sadhu Samaj has appointed one Shri Kalubharti Guru Shri Vitthal bharti as Mahant/Pujari at Mahadev ni Jagya(Known as Nilkanth Mahadev Temple).
3.5 It is the case of the petitioners that said Shri Kalubharti Guru Shri Vitthalbharti made an application to the respondent no.2 for appointing him as Pujari and Manager of Nilkanth Mahadev Temple.
3.6 Respondent no.2 on 26.6.2015 forwarded the said application to the respondent no.3 i.e. Mamlatdar stating that the respondent no.3 has powers to Page 3 of 11 Downloaded on : Mon Mar 01 14:03:23 IST 2021 C/SCA/12200/2020 ORDER appoint Pujari.
3.7 On 23.7.2015, respondent no.3 wrote a letter to Shri Kalubharti Guru Shri Vitthalbharti to submit relevant documents.
3.8 Thereafter on 30.10.2015, Assistant Charity Commissioner wrote a letter to Mamlatdar stating that the power to appoint pujari and manager in temple is with the State and therefore, State has to appoint pujari and manager in the Nilkantha Mahadev Temple and therefore, Assistant Charity Commissioner has no role. It was also stated that as per sec.22 of the Trust Act after the appointment of the trustees, the Assistant Charity Commissioner has to only approve the change report.
3.9 Vide order dated 16.2.2016 Vishwa Hindu Parishad requested respondent no.2 to appoint Shri Kalubharti Guru Shri Vitthalbharti as Pujari/Mahant in the Nilkantha Mahadev Temple.
3.10 On 29.2.2016, respondent no.2 wrote a letter to respondent no.3 stating that after appointment of Trikambharti no order was made and therefore he asked respondent no.3 to give certain details regarding the appointment of Mahant in the Shiv Temple.
3.11 Vide letter dated 26.4.2016 respondent no.3 informed respondent no.2 that earlier, office of Page 4 of 11 Downloaded on : Mon Mar 01 14:03:23 IST 2021 C/SCA/12200/2020 ORDER respondent no.2 had made appointment of Trikambharti Gopalbharti on 3.8.1958 and thereafter no appointment is made.
3.12 Thereafter on 22.6.2016 respondent no.2 rejected the application made by the Mahant Kalubharti Vitthalbharti on 18.6.2015 observing that the State has not given any power to Deputy Collector for appointment of pujari at Nilkanth Mahadev Temple.
3.13 The respondent no.3 vide letter dated 17.9.2016 informed Collector that the power of appointing Pujari is with respondent no.2 and therefore respondent no.2 may be directed to pass suitable orders.
3.14 Vide letter dated 6.3.2017, the respondent no.2 informed Kalubharti Vithalbharti that respondent no.2 i.e. Deputy Collector has no power to manage the temple situated at Shetrunjay Hill and also informed that the application to appoint Kalubharti Vithalbharti as Pujari at Mahadev Ni Jagya Trust could not be considered for appointment as Pujari since it is made on the basis of family succession.
3.15 It is the case of the petitioners that since no puraji was being appointed by respondents, a Public Interest Litigation was filed by Vishwa Hindu Parishad inter alia seeking direction to appoint pujari by filing PIL no. 180 of 2017 wherein this Page 5 of 11 Downloaded on : Mon Mar 01 14:03:23 IST 2021 C/SCA/12200/2020 ORDER Court issued notice. During the pendency of the PIL, respondent no.2 herein vide order dated 13.09.2017 appointed one Shree Atulbhai Rathod as Pujari on temporary basis till the trustees are being appointed in Mahedav Ni Jagya Trust.
3.16 On 25.12.2018 scheme application no.2/2019 was filed by the present petitioners before the respondent no.1 i.e. Joint Charity Commissioner.
3.17 On 17.5.2019 respondent no.1 has rejected the scheme application No.2/19 for appointment of trustees in Mahadev Ni Jagya, Shetrunjay Hill, Palitana.
3.18 It is the case of the petitioners that despite the direction given by the respondent no.1 to respondent no.3 to appoint manager in the Temple, the respondent no.3 has not taken any steps and therefore on 8.7.2019 petitioner no.1 made an application to respondent no.3 to comply the direction given by the respondent no.1.
3.19 In response to the application made by the petitioner no.1, respondent no.3 vide letter dated 17.7.2019 informed the petitioner no.1 that Pujari Hirapuri Ganeshpuri who was the registered Pujari in P.T.R has died and there are no trustees and therefore the Deputy Collector, Palitana has appointed Atulbhai Durlabhabhai Rathod as Pujari on 19.9.2017. It is also informed that as the Page 6 of 11 Downloaded on : Mon Mar 01 14:03:23 IST 2021 C/SCA/12200/2020 ORDER appointment Atulbhai Durlabhabhai Rathod is already made by the respondent no.2, now no action is required to be taken to comply the order passed by the Joint Charity Commissioner.
3.20 Though the respondent no.1 clearly directed the respondent no.3 to appoint manager in the Temple and though the reminder is sent by the petitioner no.1, the respondent no.3 was not taking any steps to comply the direction. The petitioners therefore on 19.8.2019 made a representation before respondent no.1 stating that respondent no.3 is not taking any steps to appoint Manager as directed and therefore prays to take action against respondent no.3 Mamlatdar to comply with direction given in the order dated 17.5.2019.
3.21 It is the case of the petitioners that despite several reminders and representation, respondent no.3 has not taken any steps to comply with the direction given by the respondent no.1 vide order dated 17.5.2019 till 22.1.2020 i.e. around 6 months. Therefore, on 22.1.2020, one Shri Bharatbhai Rathod has made an application before the respondent no.3 to comply the order dated 17.5.2019.
3.22 On 6.2.2020, respondent no.3 sent reply to application dated 22.1.2020 stating that power to appoint pujari is with the Deputy Collector and therefore respondent no.3 Mamlatdar has no jurisdiction to entertain the application.Page 7 of 11 Downloaded on : Mon Mar 01 14:03:23 IST 2021 C/SCA/12200/2020 ORDER
3.23 Respondent no.3 wrote a letter to respondent no.2 that power to appointment of pujari in Nilkanth Mahadev Temple situated the Shterunjay Hill is with the office of Deputy Collector and further requested the respondent no.2 to take further action for the same.
3.24 Thereafter respondent no.2 wrote a letter to Shri Bharatbhai Rathod stating that respondent no.1 has not given any direction to the respondent no.2 in the order dated 16/17.5.2019. It is also stated that power to appoint pujari in the temple is with respondent no.2 and under the same respondent no.2 has already made appointment of pujari in the Shiv temple vide order dated 13.9.2017.
3.25 It is the case of the petitioners that on one hand respondent no.2 in the letter dated 6.3.2017 stated that respondent no.2 has no power to manage temples situated in the Shetrunjay Hill, on the other hand vide order dated 13.9.2017 the very same authority passed an order appointing Atulbhai Rathod pujari of Shiv temple situated at Shetrunjay Hill and vide communication dated 28.2.2020 informed that respondent no.2 has power to appoint pujari and therefore he had already made an appointment on 13.9.2017. Being aggrieved by such action on part of the respondents, the petitioners have preferred this petition.Page 8 of 11 Downloaded on : Mon Mar 01 14:03:23 IST 2021 C/SCA/12200/2020 ORDER
4. Learned advocate Ms.Pahwa for the petitioners submitted that the respondent Charity Commissioner has rejected the Scheme Application preferred by the petitioners only on the ground that the provisions of Section 56T of the Trust Act is applicable and therefore, no scheme can be framed as the same is prohibited. She referred to the provisions of Section 56T of the Trust Act to pointout to submit that the same would not be applicable in the facts of the case.
5. On the other hand, learned AGP Mr.Joshi for the respondent, who appears on advance copy submitted that there is an alternative efficacious remedy available under Section 72 of the Trust Act to challenge the order passed by the Charity Commissioner and therefore, the petitioners should file an appeal challenging the impugned order.
6. In response to such preliminary objection raised by the AGP, Ms. Pahwa submitted that section 72 of the Trust Act would not be applicable when the Scheme under section 50A of the Trust Act is rejected by the Charity Commissioner.
7. Having considered the rival submissions, and having gone through the materials on record, in order to decide preliminary objection raised by the AGP with regard to alternative and Page 9 of 11 Downloaded on : Mon Mar 01 14:03:23 IST 2021 C/SCA/12200/2020 ORDER efficacious remedy, it would be necessary to refer to Section 72 of the Trust Act which reads as under: "SECTION 72 : Application from Charity Commissioner's decision under section 40, 41, 50A, 70 or 70A] etc (1) Any person aggrieved by the decision of the Charity Commissioner under section 40, 41, 50A, 70 or 70A] or on the questions whether a trust exists and whether such trust is a public trust or whether any property is the property of such trust may, within sixty days from the date of the decision, apply to the court to set aside the said decision.
(1A) No party to such application shall be entitled to produce additional evidence, whether oral or documentary, before the Court, unless the Deputy or Assistant Charity Commissioner or the Charity Commissioner has refused to admit evidence which ought to have been admitted or the Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause to court thinks it necessary to allow such additional evidence :
Provided that whenever additional evidence is allowed to be produced by the Court, the Court shall record the reason for its admission.
(2) The Court after taking evidence if any, may confirm, revoke or modify the decision or remit the amount of the surcharge and make such orders as to costs as it thinks proper in the circumstances.
(3) Pending the disposal of an application under sub-section (2) all proceedings for surcharge shall be stayed if the person aggrieved makes out a Prima facie case for a stay order, (4) An appeal shall lie to the High Court against the decision of the court under sub-section (2) as if such decision was a decree from which an appeal ordinarily lies.
Explanation.In this section, the expression "decision" shall include Page 10 of 11 Downloaded on : Mon Mar 01 14:03:23 IST 2021 C/SCA/12200/2020 ORDER a scheme framed or modified under section 50A."
8. In view of the above provisions of Section 72 of the Trust Act, there is an alternative efficacious remedy available to the petitioners to challenge the order passed by the Charity Commissioner under Section 50A of the Trust Act as it is a decision of the Charity Commisisoner which may be wither approving or rejecting the scheme under section 50A of the Trust Act. Therefore, without entering into the merits of the matter the petitioners are relegated to file appeal under section 72 of the Trust Act in view of such alternative efficacious remedy. The petitioners may file such appeal at the earliest and when such appeal is filed, the Competent Authority shall deal with the same without raising any issue of limitation in accordance with law.
9. Special Civil Application stands disposed of accordingly with no order as to cost.
(BHARGAV D. KARIA, J) AMAR RATHOD Page 11 of 11 Downloaded on : Mon Mar 01 14:03:23 IST 2021