Gujarat High Court
Shri Gopinathji Dev Mandir And Its ... vs Janakbhai Mohanbhai Patel on 27 August, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/FA/765/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 765 of 2018
With
CIVIL APPLICATION NO. 1 of 2018
With
R/FIRST APPEAL NO. 771 of 2018
With
CIVIL APPLICATION NO. 1 of 2018
With
R/FIRST APPEAL NO. 773 of 2018
With
CIVIL APPLICATION NO. 1 of 2018
With
R/FIRST APPEAL NO. 780 of 2018
With
CIVIL APPLICATION NO.1 of 2018
With
R/FIRST APPEAL NO. 807 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
Circulate this judgement in the subordinate judiciary.
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SHRI GOPINATHJI DEV MANDIR AND ITS SUBORDINATE TEMPLES
PUBLIC TRUST GADHADA
Versus
JANAKBHAI MOHANBHAI PATEL
==========================================================
Page 1 of 107
C/FA/765/2018 CAV JUDGMENT
Appearance:
F.A. No. 765 OF 2018:-
MR. SHALIN MEHTA & MR. N.D. NANAVATI, LD. SR. COUNSEL with MR
HARSHADRAY A DAVE(3461) for the APPELLANTS;
F.A. No.771 of 2018:-
MR. B.S. PATEL, LD. COUNSEL WITH MR. SHREY H. DAVE, LD.
COUNSEL for the APPELLANTS;
F.A. NO.773 OF 2018:-
MR. MEHUL S. SHAH, LD. SR. COUNSEL with MR. VIRAL K. SHAH, LD.
COUNSEL for the APPELLANTS;
F.A. NO.780 OF 2018;
MR. B.M. MANGUKIYA, LD. COUNSEL for the APPELLANTS;
F.A. NO.807 OF 2018:-
MR. B. M. MANGUKIYA, LD COUNSEL for the APPELLANTS;
DS AFF.NOT FILED (N)(11) for the RESPONDENT(s) No.
100,101,102,103,104,105,106,107,108,109,110,111,112,113,114,115,116,11
7,118,119,12,120,121,122,123,124,125,126,127,128,129,130,15,16,17,18,2,2
0,21,22,23,24,25,26,27,28,29,3,30,31,32,33,34,35,36,37,38,39,4,40,41,42,43,
44,45,46,47,48,49,5,50,51,52,53,54,55,56,57,58,59,60,61,62,63,64,65,66,67,
68,69,7,70,71,72,73,74,75,76,77,78,79,80,81,82,83,84,85,86,87,88,89,9,90,9
1,92,93,94,95,96,97,98,99
MR. N. K. PAHWA, LD. SR. COUNSEL with MR MI MERCHANT(479) for the
RESPONDENT(s) No. 13,14,19,6 & MRS SANGEETA N PAHWA(527) for the
RESPONDENT(s) No. 1,10,11,8
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 27/08/2018
CAV JUDGMENT
1. As the issues raised in all the captioned first appeals are Page 2 of 107 C/FA/765/2018 CAV JUDGMENT the same and the challenge is also to a selfsame order passed by the Addl. District Judge, Bhavnagar, those were heard analogously and are being disposed of by this common judgment and order.
2. For the sake of convenience, the First Appeal No.765 of 2018 is treated as the lead matter.
3. This first appeal under section 76 of the Bombay Public Trusts Act, 1950 (for short "the Act, 1950) read with section 96 of the Civil Procedure Code is at the instance of the original respondents Nos.1 to 9 before the court below and is directed against the judgment and order dated 17th February, 2018 passed by the Addl. District Judge, Bhavnagar in the Civil Misc. Application No.140 of 2011.
4. The Civil Misc. Application No.140 of 2011 came to be filed by the respondents Nos.1 and 6 herein respectively for the necessary directions and modifications in the Election Rules framed under the scheme, invoking Clause-48 of the scheme framed by the District Judge, Bhavnagar, referred to above.
Scheme framed by the District Judge, Bhavnagar:-
5. Let me give a fair idea about the scheme which was framed by the District Judge, Bhavnagar dated 7th October, 1978.
6. The scheme framed is for the management of the properties pertaining to the temple of Shri Gopinathdeo, Page 3 of 107 C/FA/765/2018 CAV JUDGMENT Gadhada and the temples subordinate thereto. A Public Trust came to be designated as and know by the name of "The Trust of the Temples of Shri Gopinathdeo at Gadhada and its Subordinate Temples".
7. Few salient features of the scheme may be summarized as under;
(i) The Acharya is the supreme religious and spiritual authority. The trust property is being held by the Acharya as a custodian trustee without any rights of management and administration thereon.
(ii) The management of the trust properties and the exercise of all powers are vested in the trustees. To put it in other words, the management and administration of the trust is with the members of the Board. The members of the Board are the managing trustees. The management of the trust is undertaken in the name of the Acharya. However, the Acharya has to seek the advise of the Board of the Managing Trustees.
(iii) The Constitution of the Board of the Managing Trustees is provided in Clause-19 of the Scheme. The same is as under;
"19. Constitution of Board of Managing Trustees;
(a) The Board of Managing Trustees shall consist of 7 members;
(b) The Board shall be constituted as under:-
(I) Four representatives to be elected from amongst Grahasthis.Page 4 of 107 C/FA/765/2018 CAV JUDGMENT
(ii) Three representatives to be elected from amongst ascetics so as to have one representative each from Brahmachris, Sadhus and Palas.
(iii) The Board shall elect one of its members as Chairman at the beginning of each year and the Chairman so elected will hold office for one year unless a new Chairman is elected. The same chairman may be elected as often as the managing trustees may choose, but not for more than three years in succession.
PROVIDED that in the case of tie between the member of the Board in matter of election of the Chairman the same shall be decided by casting oflot.
(c ) The election of first Board of Managing trustees shall take place on or before 1.1.1979, but not later than 9.4.1979 and the subsequent elections shall take place on 12th day of the month of chaitra of every fifth year after such election.
(d) Every election shall be held at Gadhada and such other centers as may be fixed from time to time under the rules pertaining to election.
(e) Subject to the rules that may be framed in behalf of the election, every adult male Grahasthi, Brahmachari, Sadhu and Pala whose names may be included in the voters list to be prepared by the Board shall respectively elect their representatives on the Board.
(f) The members retiring on expiry of the term shall be eligible for re-election only twice.
(g) Such Rules framed by the Board as may be sanctioned by the District Court with or without modification may provide that no Grahasthi may vote unless he has subscribed sum to the fund of the trust in specified preceding years. Provided that the Grahasthi member may not be in arrears in matters of prescribed subscription for the previous five years."
(iv) The qualifications for being a member on the Board of the Managing Trustees are prescribed in Clause-20 of the Scheme, Page 5 of 107 C/FA/765/2018 CAV JUDGMENT which read as under;
"20. QUALIFICATION FOR BEING A MEMBER ON THE BOARD OF MANAGING TRUSTEES:-
No person shall be eligible as member of the Board.
(a) If he is not an adult male.
(b) if he is convicted of an offence involving moral turpitude.
(c ) If he is an undischarged insolvent;
(d) if a tyagi is below the age of 21 years and has not completed ten years as a Tyagi;
(e) A Tyagi who belongs to any school of Swaminarayan Sampradaya other than one followed at Gadhada.
(f) A Tyagi who belongs to subordinate temples of Junagadh, Vadtal or for which a separate scheme as sanctioned by a competent court may be in force.
(v) Chapter-V of the Scheme provides for the Office Bearers.
The same is as under;
"V-OFFICE BEARERS 22(a) The Chairman elected from its members as per clause 19(b) shall preside over the meetings of the Board. In absence of the Chairman at any meeting the members present shall appoint one from amongst themselves to be the chairman of that particular meeting.
(b) Evey resolution submitted to the meeting shall be decided by a majority of the members present at the meeting and voting on the resolution or question. Each member shall have one vote but the Chairman shall have a second or casting vote, in case of tie, even if he Page 6 of 107 C/FA/765/2018 CAV JUDGMENT has voted previously one on the question or the resolution.
23. The Board shall elect one member from amongst themselves to act as a Secretary. The Chief Kothari or manager shall all act as Joint Secretary."
(vi) Chapter-X of the Scheme is with regard to the Powers of the Board. Clause-33 of Chapter-X of the Scheme is as under;
"X-POWERS OF BOARD:-
33.(i) The Board shall be in exclusive and sole charge of the day to day management of the temporal affairs of the trust Institution.
(II) Without prejudice to the generality of power of management and administration under sub-clause (I) above, the Board shall have powers in the following matters:-
(a) Appointment of Kothari or manager at Gadhada or Kotharis of subordinate temples from amongst Tyagis or satsangis, prescribing their qualifications, conditions of service, powers and duties, including their dismissal, removal, suspension, discharge and transfer. But in case of appointment of Kothari or manager. Board shall send the name to Acharya for his concurrence, Acharya may differ with the Board and may suggest other name but if Board of trustees does not agree with Acharya Board of Trustees' decision shall be final. Acharya shall concur or very in his decision within period of fifteen days from the receipt of the letter from Board of Managing trustees.
(b) Appointment of staff for the administration and management including manager-cum-Secretary, servants, drivers, cook, etc., and to determine the pay-
scales and conditions of service including their removal, discharge, dismissal or suspension and transfer.
(c ) Allotment of residential accomodation to Tyagis and extending them essential services such as water- supply, electricity, drainage, etc. Page 7 of 107 C/FA/765/2018 CAV JUDGMENT
(d) Preparation of annual inventories of all immovable and movable properties of whatsoever kind and description including the gold and silver ornaments, utensils, jewellery, shares and securities, vehicles, furnitures, fixtures, dead-stock live stocks, etc.
(e) Framing of Rules in respect of election of the Board of Managing trustees and preparing voters' list accordingly.
(f ) Appointment of Committee from amongst the members of followers for purpose of supervision and guidance and assistance of the Chief Kothari or the Kotharis of subordinate temples particularly in matters of purchase of stores, disposal and sale of agricultural produce, management of kitchen and distribution of eatables and attendance of guests and visitors, etc. to the temple.
(g) Appointment of advisers on the Board, Committee or otherwise with no right to vote, to advise and assist the members thereof.
(h) Investment of surplus funds in approved shares and securities and conversion thereof.
(I) Sale and disposal of agricultural produce, deed stock as well as live stock of the trust.
(j) Purchase of stores of all kinds, necessary for the management and administration of the trust.
(k) Sale and purchase of motor cars, tractors, station- wagons, etc.
(l) Filing and/or defending suits, appeals, revisions and, taking all necessary legal proceedings in civil, criminal or revenue courts."
(vii) Chapter-XI of the Scheme is with regard to the Kotharis or the Managers. The relevant clauses are from 37 to 41. The same are as under;
Page 8 of 107 C/FA/765/2018 CAV JUDGMENT"XI-KOTHARIS OR MANAGERS:-
37. There shall be a post of Chief Kothari at Gopinathdeo Temple at Gadhada and a post of Kothari or manger for every subordinate temple.
38. There shall be a post of Chief Kothari at Gadhada temple and Kotharis or Managers at subordinate temples, as the case may be, would be that of Chief Executive officer-cum-Treasurer and shall be always subordinate to Board of Managing Trustees.
39. The Kotharis or managers will exercise such powers as may be entrusted to them and discharge such functions as may be specified by the Board from time to time under its control and supervision.
40. The appointment, dismissal, removal, suspension or discharge of the incumbents of the posts of Kotharis or Managers including Chief Kothari at Gadhada temple shall be made by the Board.
41. The Chief Kothari or Manager at Gadhada temple and the Kotharis or Managers at subordinate temples will be in custody of the ornaments for daily use of the Acharya and or daily and they shall be kept in the treasury of the temples concerned."
(viii) Chapter-XIV is miscellaneous. Clause-46 therein reads as under;
"XIV:- MISCELLANEOUS
46. The Board shall have power from time to time to make such Rules and Regulations as it may think fit and proper for the administration, and carrying into effect all the provisions of this scheme and to provide for the management of the trust properties and also from time to time alter any such Rules or Regulations or to repeal any of them and substitute other place.
PROVIDED ALWAYS THAT no such Rules or Regulations framed or subsequently amended shall in any manner be inconsistent with any of the clauses of this scheme or of Page 9 of 107 C/FA/765/2018 CAV JUDGMENT the Act or the Rules thereunder.
PROVIDED further that the Rules in respect of the election of the Board shall not be effected without the sanction of the District Court.' (IX) What is important for the purpose of deciding this first appeal is the effect of clause-48 of the Scheme. Clause-48 falls within Chapter-XIV of the scheme, i.e, the miscellaneous.
Clause-48 reads as under;
"48. Any two members of the Board, the Acharya or any two Satsangis, two Tyagis or the Charity Commissioner shall be entitled to apply to the District Court for directions and/or modification, alteration or variation of the scheme."
8. Let me now give a fair idea about the religious sect.
8.1 In the early part of the 19th Century, the great Saint Swami Sahajanandji had founded the Swaminarayan Sect and had established a number of temples in India, most of which are located in the State of Gujarat and the nearby areas. For the purpose of administration of these temples, he had divided India into two parts and had styled those two parts as the Northern Diocese or Vibhagh and Southern Diocese. A line was drawn joining Jamnagar in the West with Calcutta in the East and the Northern portion of this line was known as the Northern Vibhagh and Southern portion was known as the Southern Vibhagh. For the Northern Vibhagh, the Swaminarayan Temple at Ahmedabad was designated by him as the main Deity or God and for the Southern Vibhagh, he had designated the main Swaminarayan Temple at village Vadtal as the Principal Seat. He had prepared treaties known as the Page 10 of 107 C/FA/765/2018 CAV JUDGMENT Deshvibhag-no-lekh, wherein he had laid down the scheme for management of these temples. Southern Vibagh was placed by him in the charge of one nephew with the Principal Seat at Vadtal and Northern Vibhagh was left by him under the charge of another nephew. Both these nephews as the Acharyas of the Sect were permitted to marry and lead life of a house-holder and for all practical purpose, he had made each of the nephews the de facto Managing Trustee in charge of the temples and religious affairs in both these Divisions. The Founder Swami Sahajanandji at Vadtal asked his followers to pay tax known as Dharmada being a personal contribution of income and to pay Namvero being an impost in the nature of a poll tax. He had also exhorted his followers to make voluntary offerings to the Acharya on special occasions in order to provide for the upkeep and maintenance of the institutions.
8.2 In 1922, the High Court of Bombay framed a scheme for the Vadtal Temple. The parties to the present proceedings are concerned with the scheme for the Gopinathdeo Temple. Based on the scheme framed for the Vadtal Temple, Azam Sir, Nyayadhish, directed framing of the scheme following the decision of the High Court of Bombay for the Gopinathdeo Temple.
8.3 In 1925, the "Hazur Court" of the Bhavnagar State confirmed the scheme in Appeal which continued to operate until the scheme dated 7th October, 1978 came to be sanctioned by the District Court, Bhavnagar.
8.4 On 7th October, 1978, the present scheme came to be sanctioned by the judgment and order of the District Court, Page 11 of 107 C/FA/765/2018 CAV JUDGMENT Bhavnagar passed in the Trust Suit No.01 of 1975. This scheme was framed for the better management and administration of Shri Gopinathdeo Mandir and the other temples falling within its jurisdiction.
8.5 Pursuant to the scheme, which came to be sanctioned by the District Court, Bhavnagar, the election rules were framed thereunder.
8.6 On 9th March, 1994, the District Judge approved the election rules in the Civil Misc. Application No.57 of 1993. The order of the District Judge, approving the election rules, is on record.
8.7 Sometime in the year 2003, the elections to elect the Board of Managing Trustees were held and the term of the said Body came to an end on 19th April, 2008.
8.8 The last election to elect the Board of Managing Trustees was held on 20th April, 2008. The term of the said Board of Managing Trustees came to an end on 25th April, 2013.
8.9 In 2011, the respondents Nos.1 and 6 herein preferred the Civil Misc. Application No.140 of 2011 under Clause-48 of the scheme, seeking various modifications in the election rules of the scheme sanctioned by the District Court, Bhavnagar in the Suit No.01 of 1975.
8.10 The District Judge, upon receiving the Civil Misc. Application No.140 of 2011, directed publication of a public notice under the provisions of Order-1 Rule-8 of the CPC, Page 12 of 107 C/FA/765/2018 CAV JUDGMENT inviting suggestions and/or objections.
8.11 In response to the public notice issued by the District Court, various Satsangis preferred applications for being heard and/or for being impleaded as the party respondents in the Civil Misc. Application No.140 of 2011 as well as in the Civil Misc. Application No.116 of 2011 filed by the other side.
8.12. Between 5th August, 2011 and 3rd December, 2011, various applications came to be filed by the Satsangis for the purpose of verification of the records with regard to the Register of Dharmada as well as for the inspection of other records. It is the case of the respondents herein that the trust neither replied nor permitted inspection of the records of the trust.
8.13 On 5th August, 2011, the Satsangis preferred an application under section 41-A of the Act, 1950 before the Joint Charity Commissioner, Rajkot, seeking various directions with regard to the administration of the trust including the directions for the production of the documents with regard to the Dharmada so as to verify the sanctity and genuineness of the various acts and also to look into the omissions in relation to the preparation of the list of the donors and maintaining of the accounts with regard to the accounting of the Dharmada.
8.14 On 22nd July, 2011, the Joint Charity Commissioner passed an ad-interim order, directing the trust to produce the documents in relation to the receipts of the Dharmada paid by the devotees of the trust. According to the respondents, this order has not been complied with.
Page 13 of 107 C/FA/765/2018 CAV JUDGMENT8.15 On 8th November, 2011, the District Judge passed an order in the Civil Misc. Application No.116 of 2011 filed by the appellants, revising the amount of Dharmada from Rs.25/- to Rs.250/-.
8.16. On 24th August, 2012, the Joint Charity Commissioner passed a bipartite order in the Application No.41/18/2011, directing the trust to produce the original records including the receipts issued as against the payment of donation/Dharmada so as to check the veracity of the acts and omissions in regard to the preparation of the voters list. This order also, according to the respondents, has not been complied with.
8.17 The trust, along with its Office Bearers, preferred the Special Civil Application No.11706 of 2012 before this Court, challenging the order dated 24th August, 2011 passed by the Joint Charity Commissioner in the Application No.41/18/2011. The Trust questioned the jurisdiction of the Charity Commissioner under section 41-A of the Act.
8.18 By the judgment and order dated 11th March, 2013 passed by this Court, the Special Civil Application No.11706 of 2012, referred to above, came to be rejected. This Court took the view that the Charity Commissioner have the power and jurisdiction to issue necessary directions under section 41-A of the Act, 1950. This Court took the view that the Satsangis have the locus to maintain an application under section 41-A of the Act, 1950 in view of the provisions contained in section 2(10) of the Act, 1950.
Page 14 of 107 C/FA/765/2018 CAV JUDGMENT8.19 The Trust without complying with the directions issued by the Charity Commissioner on the application No.41/18/2011 and without any modification of the scheme with regard to the election programme, published a provisional list in the local daily "Saurashtra Samachar" dated 13th March, 2013.
8.20 On 14th March, 2013, the Satsangis preferred an application Exh.78 before the Joint Charity Commissioner against the publication of the provisional list in the Local Daily "Saurashtra Samachar". The Joint Charity Commissioner stayed the public notice and asked the trust to prefer an appropriate application for modification of the scheme before the District Judge, Bhavnagar.
8.21 In the meantime, being aggrieved and dissatisfied with the judgment and order dated 11th March, 2013 passed by this Court in the Special Civil Application No.11706 of 2012, the trust preferred the Letters Patent Appeal No.479 of 2013.
8.22 The Trust, thereafter, preferred the Civil Misc. Application No.38 of 2013 before the Principal District Judge, Bhavnagar, seeking directions for publication of the list of the voters, without joining the Joint Charity Commissioner and also without complying with the directions issued by the Joint Charity Commissioner in the Application No.41/18/2011 as affirmed by the judgment and order of this Court.
8.23 The Principal District Judge, vide order dated 16 th March, 2013, issued ad-interim directions without notice to the Joint Charity Commissioner and to all the concerned persons Page 15 of 107 C/FA/765/2018 CAV JUDGMENT permitting the trust to receive objections on the preliminary list of the voters.
8.24 Being aggrieved by the order dated 16th March, 2013 passed by the District Judge in the Civil Misc. Application No.38 of 2013, one Bharatbhai Lavjibhai Gabhu along with one another Satsangi, preferred the Special Civil Application No.3278 of 2013 and the Special Civil Application No.3556 of 2013 before this Court. A learned Single Judge of this Court, by a common judgment and order dated 12th April, 2013 quashed and set aside the order dated 16th March, 2013 passed by the Principal District Judge in the Civil Misc. Application No.38 of 2013. This Court took the view that without seeking appropriate modification of the scheme from the District Judge, it was not open for the trust to publish any programme.
8.25 Being aggrieved by the judgment and order passed by a learned Single Judge of this Court dated 12th April, 2013, the trust preferred the Letters Patent Appeal No.608 of 2013 and the Letters Patent Appeal No.609 of 2013 respectively.
8.26 On 25th April, 2013, the term of the Office Bearers of the trust expired as provided in Clause-19(f) of the scheme.
8.27 The two letters patent appeals, referred to above, came to be dismissed vide judgment and order dated 2nd May, 2014.
8.28. Being aggrieved and dissatisfied with the judgment and order passed by the Division Bench of this Court, dismissing the two appeals, the matter was carried before the Supreme Page 16 of 107 C/FA/765/2018 CAV JUDGMENT Court.
8.29 The Supreme Court, vide order dated 11th August, 2017, was pleased to dispose of the SLP (Civil) Nos. 22298 and 22299 of 2015 respectively and also the SLP (Civil) No.22307 of 2015 filed by the trust without disturbing the judgment and orders passed by this Court. The Hon'ble Supreme Court directed the Charity Commissioner to decide the dispute at the earliest.
8.30. The Special Civil Application No.22862 of 2017 filed by Mavjibhai Devjibhai Gadhiya and another before this Court, inter alia, challenging the order of the Charity Commissioner, State of Gujarat, passed in November, 2017 in the Application No.41/18/2011 has been heard and I am informed that the judgment is reserved.
8.31 Thereafter, the impugned order came to be passed by the District Judge, Bhavnagar, giving rise to these First Appeals.
Submissions on behalf of the appellants;
9. Mr. N.D. Nanavati and Mr. Shalin Mehta, the learned senior counsel appearing with Mr. Harshad A Dave, the learned counsel for the appellants of First Appeal No.765 of 2018 made the following submissions;
"1. CMA 140 of 2011 seeking amendment in the election rules of 1994 is not maintainable at the instance of two Satsangis. Under Clause 46 of the Scheme dated 07.01.1978 framed by the district court for Shri Gopinathji Dev Mandir, only the temple board is Page 17 of 107 C/FA/765/2018 CAV JUDGMENT empowered to bring about an amendment in the election rules. Therefore, CMA 140 of 2011 was required to be dismissed on this sole ground without adjudicating anything on merits. The only remedy available for the appellants of the CMA 140 of 2011 was to file a suit under section 50 of the Act, 1950.
2. CMA 140 of 2011, though filed under clause 48 of the Scheme, does not seek any variation in the Scheme. Prayer clause of CMA 140 of 2011 at pages 81-82 unequivocally reveals that the applicants are seeking an amendment in the election rules. Thus, clause 48 of the Scheme is wrongly invoked and so the applicants are not entitled to any relief in CMA 140 of 2011.
3. At more than one place in the Scheme, there is clear indication that the Scheme and the election rules are distinct. In fact, the election rules are subordinate to the Scheme. Clause 46 provides that no rules including election rules can be inconsistent or incompatible with the Scheme. The foundation of election rules is the Scheme but the converse is not true. Also the terms "Scheme" and "election rules" are not used interchangeably in the Scheme. Therefore, it is not permissible to read in the word "election rules" in clause 48 of the Scheme.
4. The impugned order dates 17.02.2018 passed by the District Court results in an amendment of the election rules which amendment is inconsistent with the Scheme. Clause 19(e) of the Scheme provides that the four constituencies, viz.,Grahasthi, Brahmachari, Sadhu and Pala shall respectively elect their representatives on the board. Direction 3(F) of the impugned order allows the Brahmacharis, Sadhus and Palas to vote for each other and across constituencies. In other words, Brahmacharis can now vote for Sadhus and Palas, Sadhus for Brahmacharis and Palas, Palas for Brahmacharis and Sadhus. Such direction runs smack into Clause 19(e) of the Scheme.
5. The impugned order travels beyond the prayers made in CMA 140 of 2011. One of the amendments sought by the applicants of CMA 140 of 2011 in the election rules was to have an independent person like a district judge Page 18 of 107 C/FA/765/2018 CAV JUDGMENT as an election officer for holding elections of the temple board. No one had prayed that the district collector be appointed as election officer. The impugned order makes the district collector, Botad, election officer. This is neither contemplated in the Scheme nor in the election rules. At the hearing of CMA 140 of 2011, no party was put to notice that the district collector could be appointed as election officer. Clause 33(f) of the Scheme empowers the temple board to prepare voters' list. The replacement of the temple board by the district collector, Botad, under the impugned order results in a variation of the Scheme by the back hand.
6. The next election was due in 2018. The appellants announced the same by issuing public notice on 1.02.2018. The impugned order dated 17.02.2018 modifies the election rules not with retrospective effect. As the election has already commenced with its announcement, the impugned order cannot be made applicable to this election at any rate."
10. Mr. B.S. Patel, the learned counsel appearing for the appellants in the First Appeal No.771 of 2018 has filed his written submissions. The same are as under;
(2) The learned lower court has passed the order impugned in the appeal on 17th February, 2018. In Appeal, at page No.63, paragraph 3F reads as under;
"To fill up the 4 seats of the Gruhasth in the Temple Board, 4 votes can be given to the candidate in Gruhasth sect, but no one shall give more than one vote to each candidate, similarly in the Sadhu i.e., Tyagi Sect to f:ill up the 3 post of Sadhu, Parshad and Brahmchari, they shall have. right to give 3 votes to the candidates in any of the sect, , but no one shall be entitled to give more than one vote in each sect. Of Tyagi i.e. Sadhu, Parshad and Bhramchari.
The above order is not sustainable and required to be called upon on the following grounds.Page 19 of 107 C/FA/765/2018 CAV JUDGMENT
(a) Miscellaneous Civil Application No.140 of 2011 starts from Page No.54. At Page No.76 the applicants of the application have disclosed at the bottom of clause 14 as under.
"No change is sought".
Hence, the prayer granted by the learned lower court is beyond the prayers of the applicants, for which no notice had been passed.
(b) The learned lower court though observed in paragraph 17 where first four lines reads as under (page 60 of appeal file).
"An application has been filed on record vide Exh.129 wherein a Sadhu had urged to give three voting rights as also, prior to formation of Rules, however no contrary submissions are found on record on behalf of the Temple Board."
(1) In paper book at Page No.355, the objections have been submitted on 14th April, 2015 (2) Reply is filed by Shri Gopinathji Dev Mandir Trust which is at Page No.418 of the paper book?
The order is not sustainable on the following two grounds.
(i) The order is based on the ground that Trust has not objected while the Trust has objected, hence the observations made by the learned lower court is against the record.
(ii) No evidence have been led in support of Exh.129 and referring earlier practice, the same was changed by the Scheme itself Without considering 'the necessity of change and assigning any reason, application is allowed. Hence, qua the order in clause (F) itself is a non-speaking order beyond the record.
(3) Exh.129 has been submitted in Miscellaneous Civil Page 20 of 107 C/FA/765/2018 CAV JUDGMENT Application No.140 of 2011 which cannot give a substantial clause and in absence of public notice, other could not file objection.
(4) The order is .passed on the basis of transparent election, democratic system. Even though the right under the Trust has been considered to be constitutional law, but the two judgments on which I am putting reliance, clearly negative the contention of voting by the electorate outside the constituency and held that with such method if anyone is elected, he cannot be termed as a representative of the constituency.
(i) AIR 1972 SC 758 -- [Zileysingh & Ors. Vs. The Registrar, Can Co- operative Society (Can Commissioner) Lucknow] and I rely on paragraph 11 which reads as under;
"11. As to the power of the Registrar to interpret Rule 409 it will appear that the rule does not confer any power on the Registrar to interpret or to express views to guide the rights of members to vote at the annual general meeting for the purposes of election of the committee of management. On the contrary, under Rule 409 the Co- operative Society may with the previous sanction of the Registrar (I) divide its membership into different groups on territorial or any other rational basis and (ii) also specify the number of proportion of the members of the committee of management in such a manner that different areas or interests, as the case may be, in the society may, as far as may be, get suitable representation on the committee of management. Therefore, under Rule 409 a co-operative society can divide its membership into different groups on territorial or any other rational basis for the purposes of election of the members of the committee. The rule also empowers the society to apportion the membership of the committee of management amongst different groups into which the membership is divided. The number or proportion of members of the committee of management will have to be apportioned in such a manner that the different areas or interests into which the membership of the society are divided may obtain suitable representation on the committee of management. The entire purpose of division of membership into different Page 21 of 107 C/FA/765/2018 CAV JUDGMENT groups and specifying suitable representation of such group on the committee of management is to emphasise the right of the particular group to send its representative to the committee. To illustrate if a society is divided into 14 separate groups on a territorial basis and one member of the committee of management is allotted to each group and if delegates of one group have the right to case 14 votes two consequences will follow. First, the right of choosing a representative of the constituency will not be confined to that constituency but will be enlarged to outsiders in other constituencies. Secondly, a member of the committee from one constituency may be elected by' a majority of votes from delegates of other constituencies. If delegates residing outside a territorial constituency take part at the election for member of a committee from territorial constituency within which he is not a resident it will not only amount to enlarging the right of representation beyond one's territorial basis but also deny the delegates within the constituency the right of electing their own representative."
(ii) 2012 (1) GLH 245 -- Khanodar (Old) Milk Producers' Co.op. Society Ltd. & Ors. Vs. State of Gujarat & Ors. - in paragraph 18 the Hon'ble Division Bench as held as under.
"18. The last contention is that in the bye-law it is provided that every member affiliated society of the respondent Union has a right to vote for electing 16 representatives, meaning thereby the member affiliated society has to cast 16 votes for electing 16 representatives in 10 constituencies. To illustrate, in Vav constituency there are 82 member affiliated societies and all the 82 members affiliated societies vote for 16 representatives in 10 different constituencies for election to the respondent Union. If there are 2 to 3 different representatives called by different member affiliated societies, then in the elections the votes are to be counted from all 1128 members of Banaskantha District and not of that particular constituency. This would. definitely' impact the result of election and even if one of the representatives of a member affiliated society has majority of votes in that particular constituency, there are chances that the said representative may not be elected for the reason that he would have to get majority of votes from all the constituencies i.e. from the total Page 22 of 107 C/FA/765/2018 CAV JUDGMENT 1128 member affiliated societies. This would have artificial impacting result of the election inasmuch as the area where there are maximum number of affiliated societies would impact result of the constituency where there are less number of member affiliated societies meaning thereby this would give advantage to the society of larger constituency which would have more voting power than the member affiliated societies in similar constituencies. This is demonstrated by the result of the Deodar and Kankrej constituencies in the election of 2008 where despite securing more votes from the members of all the constituencies the candidate is lost in view of the fact that he has secured less votes than the returned candidate on the basis of votes cast by all the members from 10 different constituencies. Apart from that 5 or 6 constituencies having large number of members can dominate other constituencies which is not:
the democratic principle."
In view of the above two judgments, it is established under the law that voting outside the constituency is against democratic and it is possible that other Constituency will prevail and other person in majority may lose.
In Appeal file at Page No.26, clause l9(b)(II) reads as under.
"Three representatives to be elected from amongst ascetics so as to .have a representative from Brahmachris, Sadhus and Palas."
It is settled legal position that election rules framed. cannot override the scheme.
(c ) In the judgment of the lower court, at Page No.64, in the Appeal Memo in operative order, paragraph 3(D) reads as under which is at Page No.65.
"The Election Officer with the assistance of Assistant Charity Commissioner, Botad and the Chairman of the existing Temple Board shall have all the rights and powers to consider the objection against the preliminary voters' list, which shall be prepared by the existing Trust Board, alongwith the photographs and other allied details Page 23 of 107 C/FA/765/2018 CAV JUDGMENT of the voters and the final voters' list shall be prepared as per the direction and order of the Election Officer."
The above direction amending the election rules has been made without considering the fact that it runs counter to the Scheme. In Scheme at Page 40 and 42, clause 33(1)(c) reads as under;
"Framing' of rules in respect of election of the Board of Managing Trustee and preparing voters' list accordingly."
The framer of the Scheme has used the word 'and' and therefore clause 33(1)(c) should: be read disjunctively. In that event, 'preparing voters' list accordingly' is the powers of the Trust. Said clause is not amended and. there was no prayer for amending clause but by amending the clause, by framing election rules conforming powers of preparation of voters' list on the authority other than Managing Board of the Trust is against the Scheme. I reiterate that Scheme is not at all amended. In that event, election rules which are framed by the Board of Trustee and approved by the District Court being subordinate framing under the rules, cannot override the parent scheme. Hence also, 3(1)(T) is also required to be quashed and set aside."
11. Mr. Mehul S. Shah, the learned senior counsel appearing for the appellants of the First Appeal No.773 of 2018 submitted that the entire procedure adopted by the court below in adjudicating the application filed by the respondents herein was illegal. According to Mr. Shah, if the respondents herein wanted any modification in the election rules, then the only legal remedy available for them was to file a suit under section 50 of the Act. Without filing a suit under section 50 of the Act, the court below could not have adjudicated the application by merely relying on clause-48 of the scheme. Mr. Shah would Page 24 of 107 C/FA/765/2018 CAV JUDGMENT submit that even after the application was filed, the court below could have treated the same to be one under section 50 of the Act and should have asked the original applicants to fulfill the conditions necessary for maintaining a suit under section 50 of the Act.
12. In such circumstances, referred to above, all the learned senior counsel appearing for the respective appellants submitted that there being merit in the first appeals, those be allowed and the impugned order be quashed. It was also prayed that the court may remit the matter to the court below for fresh consideration of all the issues in accordance with law.
Submissions on behalf of the respondents;
13. On the other hand, all the first appeals have been vehemently opposed by Mr. R.R. Marshall and Mr. Navin K. Pahwa, the learned senior counsel, assisted by Mr. M.I. Merchant, the learned counsel appearing for the respondents.
14. The submissions canvassed on behalf of the respondents, while defending the impugned order passed by the District Court may broadly be stated as under;
14.1 Clause 48 of the scheme gives liberty to (a) any two members of the trust board ; (b) the Acharya of the trust board (c ) any two Satsangis (d) any two Tyagis or (e) the Charity Commissioner to apply to the District Court for directions or modification, alteration or variation of the scheme.
Page 25 of 107 C/FA/765/2018 CAV JUDGMENT14.2 According to the learned counsel appearing for the respondents, for any directions to be sought by the Trust Board or the Charity Commissioner or the Satsangis, the only remedy available is under clause-48 of the Scheme.
14.3 It is submitted that clause-46 contains an enabling power in favour of the trust board. The trust board, under clause 46, has the liberty to frame rules including the election rules, which can be effected only after the sanction by the District Court. The application by the Trust Board for approval of such rules is also to be made under clause-48. In such circumstances, it has been vehemently submitted that for any modification even in the rules, the remedy is to invoke clause- 48 of the scheme.
14.4 It is submitted that the Trust Board has the liberty to frame/alter the rules subject to the sanction by the District Court. The other persons described in clause-48 can move the District Court directly and propose the modifications in the scheme or the rules.
14.5 It is further submitted that the words "and/or", used in clause-48 between the words "directions" and "modification.... scheme" should be read disjunctively. It is submitted that the persons included in clause-48 can apply to the District Court for the necessary directions. They can also apply for the necessary modification or variation in the scheme as well as the rules framed thereunder.
Page 26 of 107 C/FA/765/2018 CAV JUDGMENT14.6 It is vehemently submitted that the Court should read the rules as a part of the scheme and within the ambit of the scheme. The non-consideration or exclusion of the rules from the ambit of the scheme would make the rules nugatory. The scheme and the rules have been approved by the District Judge. It is in the nature of a decree. The scheme and the rules framed thereunder are necessary for the administration of the trust and it is necessary to read both the instruments within the ambit of clause-48.
14.7 it is submitted in the alternative that assuming without admitting that the rules are not part of the scheme, an application seeking modification of the scheme would fall within the ambit of "directions" under clause-48.
14.8 It is submitted that it is not permissible for the appellants to contend that the Civil Misc. Application No.140 of 2011 could not have been entertained by the District Judge under clause-48 because the Civil Misc. Application No.116 of 2011 filed by the appellants is also shown to be under clause- 48 of the scheme.
14.9 It is submitted that even otherwise, the Civil Misc. Application No.140 of 2011, filed on behalf of the Satsangis, is not only for the modification of the rules, but it is also for the purpose of guidance and clarification of the District Court in respect of fair and transparent election.
Page 27 of 107 C/FA/765/2018 CAV JUDGMENT14.10 In the last, it was submitted that the issue with regard to the maintainability of the Civil Misc. Application No.140 of 2011 under clause-48 of the scheme was not raised before the Court below at any point of time. This contention is sought to be canvassed for the first time.
ANALYSIS
15. Having heard the learned counsel appearing for the parties and having considered the materials on record, the following issues fall for my consideration.
15.1 Whether the application filed before the court below, seeking appropriate directions and modifications in the scheme and election rules, invoking clause-48 of the scheme was maintainable in law?. To put it in other words, whether the original applicants before the court below could have invoked clause-48 for the purpose of seeking modifications in the election rules framed under the scheme?
15.2 Whether section 50 of the Act has any application in the present case?. To put it in other words, whether the only remedy for the original applicants was to file a suit under section 50 of the Act?
15.3 Whether I should read modification of election rules too in clause 48 of the scheme?
15.4 Whether the directions issued by the court below, more Page 28 of 107 C/FA/765/2018 CAV JUDGMENT particularly, as contained in clause-(F) of para-21 of the impugned order pursuant to the application filed by two Satsangis, Exh.129 are just, proper and tenable in law?
15.5 Whether the modification in the election rules, in any manner, is violative of Articles 25 and 26 of the Constitution of India?.
15.6 Whether the judgment and order passed by the court below is appealable under section 76 of the Act, 1950 read with section 96 of the CPC?. To put it in other words, is the impugned order, passed by the court below, a decree? It is an appealable order?
Maintainability of the Appeals:-
15.7 I would first like to consider whether these first appeals are maintainable or whether the impugned judgment and order should be challenged by filing the special civil application under Article 227 of the Constitution of India, invoking the supervisory jurisdiction of this Court.
15.8 These appeals have been filed, invoking section 76 of the Act, 1950. Section 76 of the Act, 1950 as under;
"76. Save in so far as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the court under this Act."Page 29 of 107 C/FA/765/2018 CAV JUDGMENT
15.9 Section 72(4) specifically provides for an appeal to the High Court against the decision of the court under sub-section (2), but section 72 talks about only decisions recorded under sections 40, 41, 50(A), 70 or 70(A). Of course, section 72(2) ends with "etc.". No other appeal has been provided under any of the provisions of the Act. Indisputably, the impugned judgement and order is not one falling within any of the sections referred to in section 72 of the Act. I find it difficult to take the view that only by virtue of section 76 of the Act, 1950, these first appeals cant be said to be maintainable in law. An appeal is a creation of statute. No one has a right to appeal unless specifically provided in the statute. Section 76 of the Act, 1950, merely clarifies that if any of the provisions of the Act is inconsistent or is in conflict, the Code of Civil Procedure shall apply to all the proceedings before the court under the Act. The Bombay High Court, in the case of Sadanand vs. Nasik Diocesan Covent, reported in 1997 (2) Mah. L.J. 786 and in the case of Krishankant Dattaram Pathare vs. Dy. C.C., 1990 Mah. L.J. 907, has taken the view that the civil procedure code is made applicable only to all the proceedings before the court under the Act. The court is defined in section 2(4) of the Act, meaning, either the City Civil Court or the District Court. Therefore, the civil procedure code is made applicable only to the proceedings before the City Civil Court or the District Court. The High Court has taken the view that it cannot apply to the appeals filed before the High Court. Section 76 does not say that the civil procedure code is applicable to the court and the High Court. In any view of the matter, section 76, by itself, will not make the impugned order passed by the District Court in the case on hand appealable.
Page 30 of 107 C/FA/765/2018 CAV JUDGMENTEven if I read High Court in section 76, that by itself, will not make the appeal maintainable. An appeal against a particular order would not lie because the civil procedure code is made applicable to the proceedings. Whether an appeal would lie would depend on the nature of the order. There are two types of orders. First, the order which could be termed by itself as a decree and secondly the orders which have the effect of being a decree. Therefore, it is the nature of the order that should be looked into by the court. Although, there has not been any debate as regards the maintainability of the first appeals, but having entertained some doubt in this regard, I tried to look into the position of law. I have a decision of the Calcutta High Court in the case of Srijib Nyayatirtha, Secretary & Ors. vs. Sreemant Dandy Swami Jagannath Ashram, Mohant Maharaj, Tarakeswar & Ors., reported in AIR 1941 Calcutta 618, on the subject wherein a Division Bench of the High Court held as under;
"6. It is a settled principle of law that the right of appeal is a creature of statute. When no such right is expressly given by the statute it does not exist. An order interpreting a scheme framed in a suit instituted under Section 92, Civil P. C, or giving directions for carrying out the provisions of the scheme cannot be regarded as an order passed in execution, that is under Section 47, Civil P.C.: Sevak Jeran Chod Bhogilal v. Dakore Temple Committee and Sivaram Dubai v. Raja-gopala Misra ('30) 17 AIR 1930 Mad 918. If the order in question is not a decree the appeal would be incompetent, as it is not an order made under Section 47 nor an order specified in Section 104 or Order 43 of the Code. The first argument only, therefore, requires consideration, and has to be decided on the special facts of this case which we have before us. There can be no doubt that the learned Judge had been asked to decide, and he has in fact decided points 1 and 2 mentioned in the mahant's application.Page 31 of 107 C/FA/765/2018 CAV JUDGMENT
Those points concern the respective rights of the mahant and the committee under the scheme. There has thus been an adjudication and a final adjudication so far as the learned District Judge is concerned, upon the rights of the mahant and the committee. We cannot accept the contention of the learned Counsel of respondent 1 that the learned Judge has merely expressed his opinion on those points. He did not, however, as his judgment clearly shows, give any direction upon the specific points (Nos. 3 to 8) mentioned in the mahant's petition, but has decided once for all, as he himself says, the general questions which concern the rights of the parties before him. His order thus complies with one part of the definition of a decree as given in Section 2, Civil P.C. His order would, however, be a decree if two further conditions are fulfilled, namely, (a) if the order had been passed in a suit and (b) if the mahant and the members of the committee can be regarded as parties to that suit.
7. That the order has been passed in a suit cannot be questioned, for suit No. 28 of 1922 was expressly kept pending for the purpose of enabling the mahant and the committee to apply for directions under para. 17 of the scheme and for the purpose of applying for modification of the scheme under para. 18. The cases cited by Mr. Ghose namely, Habibar Rahaman v. Saidannesaa Bibi , Minakshi Naidu v. Subramanya Sastri ('88) 11 Mad 26, Santhappa Sethuram v. Govindaswamy Kandiyar (18) 5 AIR 1918 Mad 1122 are therefore distinguishable, for the orders passed by the Court in those cases were not passed in suits, but on applications-in the first case on an application by mutwallis to the District Judge as chief kazi for permission to grant a lease, and in the last two cases on applications made under the Religious Endowments Act. The other case cited by him, namely Behari Lal v. Kedar Nath ('91) 18 Cal 469, has no bearing upon the point at issue before us. There an application for execution was made by the decree holder. To succeed he had to get rid of a compromise by which satisfaction of the decree had been entered. He attacked that compromise on the ground that it had been procured by fraud. The judgment-debtor urged that the validity of the said compromise could not be challenged in execution proceedings but could only be so done in a suit filed for the purpose. That contention was overruled by the trial Page 32 of 107 C/FA/765/2018 CAV JUDGMENT Court, which held that the compromise could be challenged in that execution proceeding. It is against that order that the appeal was filed and it was maintained by the judgment-debtor that the order was appealable as it came within the purview of Section 244, Civil P.C. of 1882. This Court held that the appeal was incompetent on the ground that the order was not a final order which had the effect of terminating the execution proceedings in the trial Court. That decision only recognizes what has been settled that any and every order made in the course of execution is not appealable but those only which finally determine so far as the trial Court is concerned the rights of the decree-holder and judgment- debtor: Srinivas Prosad Singh v. Kesho Prosad Singh ('11) 14 CLJ 489 at p. 497. The only other question that remains for consideration, so far as this part of the case is concerned, is whether the mahant and the members of the committee can be regarded as parties to Suit No. 28 of 1922, which was kept pending for the purposes mentioned in paras. 17 and 18 of the scheme.
8. The learned District Judge has rightly-observed that on the authority of precedents of this Court and some of the other High Courts that it was not beyond the power of the Court which framed the scheme to provide for the modification of the scheme by an application in the very suit itself in which the scheme was framed. It is conceded by Mr. Ghose that an order passed by the District Judge modifying the scheme on an application made under para. 18 would be a decree and in our opinion this concession has been rightly made. A new suit under Section 92, Civil P.C., would lie for the alteration of a scheme and an order altering the scheme in such a suit would be a decree. All that para. 18 does is to avoid as far as possible the formality of filing a new suit, by providing that the scheme could be altered at the instance of the persons named therein in Suit No. 28 of 1922 itself. The scope of that suit was thus enlarged in a sense. In a sense it was not, for the main object of that suit was proper administration of the Tarakeswar endowment. The Court can under O.1 Rule 10, Civil P. C, add parties and what para. 18 does is that as soon as an application is made by the mahant or the members of the committee he or they would, so to say, automatically become parties to Suit No. 28 of 1922, without the formality of an order under O.1 Rule 10. The language of Page 33 of 107 C/FA/765/2018 CAV JUDGMENT para. 17 closely follows the language of para. 18 and we think that the mahant and the members of the committee must be regarded as parties to Suit No. 28 of 1922 as soon as an application under the former paragraph is made by one with the other or others as opposite parties. This view of ours would not necessarily give all orders passed on applications made under that paragragh the effect of decrees. Only those orders would have that effect which would finally adjudicate the rights of the mahant and of the committee put in issue. We accordingly overrule this preliminary point and hold that the appeal is competent."
15.10 I am of the view that the modification is in the decree itself. The scheme framed by the District Court has the effect of being a decree. If any amendment or modification is carried out in the scheme or the rules framed under the scheme approved and sanctioned by the District Court, then the modification, variation or amendment will also have to be construed as a decree. If that be so, then an appeal is maintainable.
15.11 Having regard to the above, I hold that these first appeals are maintainable in law.
15.12 Before adverting to the various other rival submissions canvassed on either side, let me look into the provision of section 50 of the Act, on which strong reliance has been placed by the appellants. Section 50 of the Act reads as under;
" Section 50 :
In any case-
(i) where it is alleged that there is a breach of a public trust, Page 34 of 107 C/FA/765/2018 CAV JUDGMENT
(ii) where a declaration is necessary that a particular property is a property belonging to a public trust or where a direction is required to recover the possession of such property 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, the Charity Commissioner 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 contentious 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 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 authorizing 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."
15.13 Section 50 of the Act provides for the execution of the suits relating to a public trust. The section is based on the lines of section 92 CPC, but it enlarges its scope to include the suits for a direction to recover possession of a property Page 35 of 107 C/FA/765/2018 CAV JUDGMENT belonging to a public trust from any person. Such suits can be filed by the Charity Commissioner or two or more relators with the consent of the Charity Commissioner. This condition was imposed to prevent an indefinite number of reckless and harassing suits, being brought against the trustees by different persons interested in the trust. The object of this section is to protect not only the public rights but also the rights of the trustees and institutions. The underlying object of section 50 of the Act is to put an embargo on frivolous litigations and the consent of the Charity Commissioner is regarded as a safety valve for avoiding acrimonious litigations.
The object is that before the Charity Commissioner files a suit or gives his consent for filing a suit, he would satisfy himself that there is a prima facie case either of breach of trust or of the necessity for obtaining direction of the court. Section 50 of the Act, for all purposes, substitutes section 92 of the CPC and excludes the applicability of section 92 of the Code to the public trust. The question whether section 50 of the Act applies or not depends upon the prayer in the plaint. While determining the nature of the suit, one has to read the plaint as a whole and find out as to what in substance the plaintiff has claimed. Broadly, section 50 requires the following conditions for its application;
(I) existence of a public trust registered under the Act;
(II) alleged breach of public trust;
(III) whether the direction of the court is deemed necessary for the administration of any public trust;
(IV) the property, in respect of which, the suit is instituted must be a property belonging to a public trust;
Page 36 of 107 C/FA/765/2018 CAV JUDGMENT(V) the suit must be a representative suit on behalf of and in the interest of the public or in the interest of the trust itself, but not to remedy an infringement of an individual right or to vindicate private rights. The real test whether the suit falls within section 50 of the Act is to see whether the suit is fundamentally on behalf of the public for the vindication of a public right.
(VI) Suit may be instituted (a) by the Charity Commissioner after making such inquiry as he thinks necessary or (b) by two or more persons (I) having an interest in the trust; and (ii) having obtained the consent in righting of the Charity Commissioner.
16. In my view, Clause 48 of the scheme framed by the District Court way back in the year 1978 is quiet clear. It is in the nature of a liberty to apply clause. Clause 48 of the scheme gives liberty to any two members of the trust board; the Acharya of the trust board; any two Satsangis; any two Tyagis; or the Charity Commissioner to apply to the District Court for directions or modification, alteration or variation of the scheme. I see no good reason to exclude the election rules approved and sanctioned by the District Court from Clause 48 of the scheme. The rules are framed under the scheme. The election rules particularly framed under the scheme should receive the sanction or approval of the District Court. The rules could be said to be part of the scheme and, therefore, if any modification is necessary in the election rules in the interest of the trust, more particularly, for fair and transparent election, then it is always open for the persons specifically referred to invoke clause 48 of the scheme. In my view, the Page 37 of 107 C/FA/765/2018 CAV JUDGMENT original applicants rightly invoked clause 48 of the scheme.
17 I am not impressed by the submission canvassed on behalf of the appellants that the election rules can be modified only by the trust board under clause 46 of the scheme. Clause 46 is an enabling power in favour of the trust board. The trust board, under this clause, has the power to make rules including the election rules, which can be effected only after the sanction by the District Court. Application by the trust board for approval to such rules has also to be made under clause 48 of the scheme. Therefore, in my view, for any modification even in the rules, it is permissible to invoke clause 48 of the scheme. The trust board has the liberty to frame/alter the rules subject to the sanction by the District Court. The other persons enumerated in clause 48 can move the District Court directly and propose the modification in the scheme or the rules. I am not impressed by the submission that the original applicants ought to have first approached the trust board, if, at all, they wanted to seek modifications in the election rules. When clause 48 of the scheme is very clear in this regard, in my opinion, there was no necessity, as such, or any legal obligation to first approach the trust board for seeking the necessary modifications in the election rules. It is preposterous to suggest that clause-48 of the scheme gives liberty to the persons enumerated therein to pray for necessary modification in the scheme in the interest of the administration of the trust, but clause-48 would not be applicable when it comes to seeking modification in the election rules.
Page 38 of 107 C/FA/765/2018 CAV JUDGMENT18. Section 50 of the Act, in my opinion, has no application in the present case. As noted above, section 50 contemplates invoking the jurisdiction of a court in one of the three contingencies; namely, (i) breach of a public trust; (ii) recovery of possession of property of public trust and (iii) where the direction of the court is deemed necessary for the administration of the new public trust. Admittedly, the conditions (I) and (ii) are not attracted. The learned counsel appearing for the appellants submitted that the condition No.3 is attracted because modification in the election rules has something to do with the administration of a public trust. In my view, the necessary modifications in the election rules is not always a necessary direction for administration of a public trust. The instrument of trust, i.e. the scheme which has the effect of a decree in the eyes of law itself provides the mode and method of seeking necessary directions or modifications.
19. The aforesaid view of mine is fortified by few precedents. A Division Bench of the Bombay High Court in the case of Chandraprasad Ramprasad vs. Jinabhrath Narayan Bharathi & Ors., reported in AIR 1931 Bom. 391 had the occasion to consider almost an identical issue. In the said case, a scheme in connection with a temple was framed by the District Court of Surat in a suit filed with the consent of the Collector under section 92 of the CPC. The rules framed under the scheme authorized the District Court to alter or amend the scheme upon an application of a party interested or on its own initiative after giving a public notice. On an application made to the Court for the removal of certain trustees and for the modification of the scheme, the District Judge rejected the Page 39 of 107 C/FA/765/2018 CAV JUDGMENT application on the ground that the proper remedy of the applicant was by a separate suit under section 92 of the CPC On the applicant, appealing to the High Court, Justice Patkar, in his separate but concurring judgement, held as under;
"With regard to the second point that so far as the relief mentioned in Section 92 of the Civil Procedure Code is concerned, the remedy is not by way of an application but by a suit with the consent of the Advocate General, it appears to me that the consent of the Advocate General is required under Section 92 for the settling of a scheme whore no scheme existed before, and not for the modification or alteration of the scheme. Though the provision for the consent of the Advocate General is salutary in so far as it would tend to prevent vexatious suits, I think that when once the Court has seizin of a case relating to charitable and religious trust involving the framing of a scheme, the more appropriate and speedy remedy would be by way of an application rather than the cumbrous procedure of a suit, in case a modification is required of the scheme owing to change of circumstances. In the mofussil instead of the Advocate General bringing a suit or giving consent to a suit by the relators, the powers of the Advocate General can be exercised by the Collector or such other officer as the local Government may appoint in that behalf under Section 93 of the Civil Procedure Code. It can scarcely be said that the Collector or such other officer appointed under Section 93 has the same legal knowledge or can exercise the powers in the same efficient manner as the Advocate General in the Presidency towns. Section 35A of the Civil Procedure Code is a sufficient safeguard against frivolous or vexatious applications. The Court which has already framed a scheme is in as good a position if not better than the Advocate General to consider the desirability of an amendment of the scheme, if necessary. In my opinion, the consent of the Advocate General is only required when a scheme has to be drawn for the first time and not when it is necessary to have an amendment or alteration or modification of the scheme.Page 40 of 107 C/FA/765/2018 CAV JUDGMENT
16. I am not, therefore, satisfied that the rule giving liberty to apply to the Court for alteration or modification of the scheme is ultra vires. As observed in Att.-Gen. v. Bishop of Worcester (1851) 9 Hare 328 (pages 356 and
361):--
"This Court is in the constant) habit of altering schemes which have been settled under its decrees, as the alterations of times and circumstances have-required; and it has frequently done so upon petition in the causes in which the decrees have been made; and I do not think that the power of the Court to make such alterations can depend upon the character in which the decree has been made by the Lord Chancellor."
" ...it is obvious, 1 think, that the Court must proceed upon such applications with the utmost possible caution; that what has been done by the Court must not be disturbed, except upon the most substantial grounds, and upon the clearest evidence, not only that the scheme does not operate beneficially, but that it can by alteration be made to do so consistently with the object of the foundation.
17. In Halsbury's Laws of England, Vol. IV, para. 328, page 188, it is observed as follows:-- A scheme settled by the court for the administration of a charily can be altered by the court if the lapse of time and change of circumstances render it for the interest of the charity that the alteration should be made. But schemes so settled are not altered except upon substantial grounds, and upon clear evidence not only that the existing scheme does not operate beneficially, but that it can be made to do so consistently with the object of the foundation.
18. Though the consent of the Advocate General may probably be necessary in England for an application for an alteration or modification of the scheme as laid down in para. 329 of Halsbury's Laws of England, Vol. IV, and the cases referred to by the Madras High Court in the full bench decision, Section 92, if strictly construed, requires the consent of the Advocate General to a suit praying for Page 41 of 107 C/FA/765/2018 CAV JUDGMENT settling a scheme and not for modification or alteration of the scheme after it is once settled.
19. I, therefore, regret my inability to agree with the conclusion arrived at by the full bench of the Madras High Court, and would prefer to follow the practice of this Court which has prevailed for a long time and has been approved by the Privy Council, until the point is settled by the legislature or by a higher tribunal.
20. I think, therefore, that the rules in the scheme giving liberty to apply are not ultra vires. One of the rules gives the District Court power to remove the trustees for strong reasons. The prayers, therefore, made in the application are covered by the rules in the scheme.
21. The next question is whether the order passed by the lower Court is an order passed in execution proceedings or an application in the suit. According to the decision of the Privy Council in Jeranchod v. Dakore Temple Committee , P.C., the order cannot fall as an order in execution proceedings under Section 47 of the Civil Procedure Code and an appeal would not be competent. I think that the order in such a case would be an order on an application in the suit under the liberty to apply reserved in the scheme. It is doubtful whether such an order passed is a decree against which an appeal would lie. The point whether such an order can be considered as passed in an application in the suit, or an application under the scheme relates to a matter of form rather than of substance. I would, however, treat the order passed by the lower Court as subject to revision by this Court under Section 115 of the Civil Procedure Code. The learned District Judge had jurisdiction to entertain the application and failed to exercise the jurisdiction vested in him by law."
20. Justice Broomfield, in his separate but concurring judgement, held as under;
Page 42 of 107 C/FA/765/2018 CAV JUDGMENT" The Court which frames the scheme appears to be the proper authority to decide whether modifications are necessary, and, in my opinion, if the Courts are permitted to make modifications on good cause shown and to remove unsatisfactory trustees on proper applications under the scheme, we shall not be sacrificing any safeguard which it is necessary to maintain either in the interests of the trustees or of the public. If this view implies that a suit in which a scheme is framed remains pending indefinitely, that may be anomalous, but it is not an insuperable objection. Moreover, speaking for myself, I am not satisfied that it is necessary to hold that the suit itself continues by reason of a clause in the scheme giving liberty to apply, It would seem to be permissible to hold that the suit is at an end and that any orders subsequently passed are passed under the scheme and not in the suit"
21. Thus, the ultimate findings of the Division Bench may be summarized as under;
"(1) That the District Court was competent to grant the relief asked by virtue of the powers conferred upon it under the rules of the scheme and that no separate suit under section 92 of the Civil Procedure Code was necessary.
(2) that the rule giving authority to the court which sanctioned the scheme to alter or modify it is not ultra vires.
(3) that the consent of the Advocate General is required under section 92 of the Civil Procedure Code for the setting of a scheme where no scheme existed before and not for the modification or alteration of the scheme.
(4) that the practice of the Bombay High Court to embody in the scheme a rule giving liberty to any person interested in the trust to apply for modification or alteration of the scheme is proper and has been Page 43 of 107 C/FA/765/2018 CAV JUDGMENT approved by the Privy Council."
22. The aforesaid decision of the Bombay High Court came to be, later, considered by the very same High Court in the case of Dhirajlal Veljibhai Gucka vs. Pratap Bhogilal & Ors. & Hasmukh Karsondas Mehta vs. Pratap Bhogilal & ors., (1986) 3 Bom. CR 120. In the said case, the petitioners had challenged the amendments in the scheme of management and administration of the trust by taking recourse to the chamber summons. The submission on behalf of the petitioners was that after coming into force of the Bombay Public Trusts Act, 1950, the provisions of section 92 of the CPC, 1908 are not applicable. It was argued that there was no scope for seeking amendment in the scheme by taking recourse to the chamber summons under the said Act. It was also argued that the amended clause 26 of the scheme had to operate within the parameters of section 50 of the Act On the other hand, on behalf of the respondents, it was contended that section 92 of the CPC also contemplates filing of a suit by persons having interest in the trust after obtaining the consent of the Advocate General in writing and the chamber summons can be resorted to for the purpose of carrying out the modifications in the scheme. The question that fell for the consideration of the Bombay High Court was whether the application filed by the trustees for amendment of the scheme by taking recourse to the chamber summons and the court granting the amendment was proper?. The Division Bench, in para-15, quoted its earlier Division Bench decision in the case of Chandraprasad Ramprasad (supra) , referred to above, and thereafter, proceeded to observe as under;
Page 44 of 107 C/FA/765/2018 CAV JUDGMENT"16. Therefore, even though, section 92 of the C.P. Code contemplates taking of prior permission in writing of the Advocate General before a suit is filed, taking of proceedings by way of chamber summons is not only permissible but also desirable. Further, the Supreme Court has held in paragraph 18 of its decision in the case of Ratilal Panachand Gandhi's case (supra) as under :
"We now come to section 50 and exception has been taken to Clauses (e) and (g) of that section. It is difficult to see how these provisions can at all be objected to. Section 50, as has been said above, is really a substitute for section 92 Civil P.C. and relates to suits in connection with public trusts Clause (e) of section 92, Civil P.C. and Clause (g) also reproduces substantially the provision of Clause (g) of section 92 Civil P.C. There is no question of infraction of any fundamental right by reason of these provisions."
17. This view has been again taken by the Supreme Court in the case of Raje Anandrao v. Shamrao and others, . In the above view of the matter, it can be assumed that at least for limited purpose, section 50 of the Act is a substitute for section 92 of the C.P. Code and, therefore, Chamber Summons would be permissible under the Bombay Public Trusts Act also on parity of reasonings. If the scheme so provides. No doubt, the Supreme Court held in its decision in the case of Shree Gollaleshwar Dev and others v. Gangawwa Kom Shantayya Math and others, that the provisions of section 50 of the Bombay Public Trusts Act and section 92 of the C.P. Code were not in pari materia and reversed Mysore High Court's Full Bench decision in the case of Gollaleshwar Dev's case reported in A.I.R. 1972 Mysore 1. However, on carefully going through the decision particularly paragraph 15, it appears to us that Their Lordships held the provisions in two sections to be not in pari materia on account of some distinguishing feature which have nothing to do with the taking of proceedings by way of Chamber Summons. Therefore, we do not agree with the learned Counsel for the petitioners that there has been anything fundamentally wrong or improper in seeking amendment of the scheme by taking recourse to Chamber Summons or in Judge's passing an order in those proceedings. There is one more reason for our taking this view. It is an admitted position that the decree dated 12th September, 1962 passed by the Page 45 of 107 C/FA/765/2018 CAV JUDGMENT Bombay City Civil Court in Suit No. 1195 of 1962 was obtained by the trustees by taking proceedings in conformity with the provisions of section 50 of the Act. The decree dated 12th September, 1962 has not been challenged in these proceedings in these proceedings as such. Chamber Summons are taken as further step in those proceedings i.e. Suit No. 1195 of 1962. Moreover, we have not been able to appreciate what is so illegal about the procedure adopted in this behalf. Instead of obtaining the consent of the Charity Commissioner in writing before filing the suit under section 50 read with the section 51 of the Act, Charity Commissioner has been made a respondent. The Charity Commissioner has appeared before the Court through his Advocate. If he had any objections, he had ample opportunity to raise. Instead of raising any objection, he has instructed his advocate not to oppose the amendment as he did not find anything wrong with the amendment sought."
23. A learned Single Judge of the Calcutta High Court also had the occasion to consider the Division Bench decision of the Bombay High Court in the case of Chandraprasad Ramprasad (supra). In the case of Chameli Bibi vs. Kanhaiyalal Agarwalla & Ors, reported in AIR (1973) Calcutta 328, the Calcutta High Court held as under;
"14. It follows therefore that the scheme as framed in 1944 has to be looked into to find out whether Prem Kumari can apply under the scheme in terms thereof. It is argued by Mr. Jain, as indicated herein-above, that even though there is no such clause in the scheme itself providing for modification of the scheme yet such a clause should be deemed to be implied in every scheme which is for public religious and charitable purposes. In my opinion, while it is desirable that in every scheme such a clause should be provided so that as" and when the scheme has to be modified, on a proper case being made out, the same might be done by any person who would be interested in the scheme or in the trust itself by making an application under the scheme without taking recourse to a fresh suit, yet in the absence of such a clause, the scheme cannot be modified by means of an Page 46 of 107 C/FA/765/2018 CAV JUDGMENT application in the scheme itself. The fresh suit under such circumstances might mean following up the cumbrous procedure as is provided under Section 92 of the Code of Civil Procedure 1908 but when such a clause is not to be found in the scheme itself the Court should not, at this stage, insert such a clause for the purpose of giving the right to apply to any person interested in the scheme or in the said trust. At the time when the said scheme was framed the Court in its wisdom thought fit that such powers should not be conferred on the public in general so that every now and then no such applications could be made for modification of the scheme without taking recourse to a fresh suit under Section 92 of the Code of Civil Procedure, 1908.
20. In my opinion, if the Court passes a decree whereby a scheme is settled and f in the scheme the liberty to apply for modification is not provided, the suit comes to an end. The modification clause makes a scheme elastic. It reserves in it powers to make it elastic and to amend or modify it as and when occasion arises but if no such power is reserved at the time of the framing of the Scheme then nothing can be done under that scheme by an application and under such circumstances, a fresh suit is contemplated under Section 92 of the Code of Civil Procedure after complying with the formalities prescribed therein. The modification clause cannot be inserted at a later point of time by making an application to that effect, because that will be effect seek to revive the suit which has already come to an end. It comes to this that unless by the decree the power is reserved in the scheme itself at the time of the passing of the decree such power cannot be inserted in the scheme itself at any subsequent period of time. In such event, another scheme and another decree is necessary to provide the alteration or modification clause in the scheme. The Privy Council in the case reported in (1907) 34 Ind App 78 inserted such clauses in the scheme framed by their Lordships not at a subsequent stage but at a time when the suit under Section 92 came up before them on appeal.
21. I shall now examine the Supreme Court cases on this point cited to me from the bar. In the case of Raje Anandrao v. Shamrao, AIR 1961 SC 1026 the Supreme Court held that such modification could be made by an Page 47 of 107 C/FA/765/2018 CAV JUDGMENT application under the relevant clause of the scheme. In the case before the Supreme Court such a clause giving liberty, to apply for modification of the scheme already existed. It was not a ease where the question was whether such a clause could be inserted in the scheme at a later stage or not, as is the case before me. It is specifically made clear by their Lordships of the Supreme Court that the main question which arose before them was how far it was open to a Court to amend a scheme once framed under Section 92 of the Code of Civil Procedure, where a power to amend the scheme was reserved in the scheme itself. Accordingly, the question which has arisen before me has not been decided by the Supreme Court in that case. In deciding that case the Supreme Court has taken note of the fact that the Privy Council in several cases framed schemes by actually inserting such a clause giving liberty to any person interested to apply to the High Court for any modification of the scheme that might appear to be necessary or convenient without deciding whether such a clause could be legally inserted therein or not. The Supreme Court also took note of the Bombay case reported in AIR 1948 Bom 146 : ILR (1947) Bom. 466 which was decided under extreme circumstances to meet the ends of justice. In my opinion, this case also does not help Mr. Jain and the observations of the Supreme Court go to suggest that if such a clause would be found absent in the scheme itself then the only remedy left open is to file a suit under Section 92 of the Code of Civil Procedure and however cumbrous the procedure might be for instituting a suit under Section 92 of the Code of Civil Procedure, the same have got to be taken recourse to.
22. As to what is the effect of a decree for scheme passed in a suit under S. 92 has been considered by the Supreme Court in the above case in the following passage appearing at page 1210:
"A suit under Section 92 certainly comes to an end when a decree is passed therein, including the settlement of a scheme for the administration of the trust. But there is nothing in the fact that the Court can settle a scheme under Section 92 to prevent it from making the scheme elastic and provide for its modification in the scheme itself. That does not affect the finality of the decree; all that it provides is that where necessity arises a change may be made in the manner of administration by the Page 48 of 107 C/FA/765/2018 CAV JUDGMENT modification of the scheme. We cannot agree that if the scheme is amended in pursuance of such a clause in the scheme it will amount to amending the decree. The decree stands as it was, and all that happens is that a part of the decree which provides for management under the scheme is being given effect to. It seems to us both appropriate and convenient that a scheme should contain a provision for its modification, as that would provide a speedier remedy for modification of the manner of administration when circumstances arise calling for such modification than through the cumbrous procedure of a suit."
It follows from the above observation that unless such a clause reserving the right to apply for modification would be provided in the scheme itself the decree sanctioning the said scheme would be deemed to have attained finality. If without such a clause the scheme is sought to be amended that would amount to amending the decree which the Court is not competent to do at this stage. "
24. In A.D.K. Rangaswami Raju vs. The Municipal Chairman, Rajapalayam & Ors., reported in AIR 1977 Madras 287, a Division Bench of the Madras High Court held as under;
"4. The general law as set forth in Order XX Rule 3 of the C.P.C., is that, where a judgment has been pronounced and signed by the Judge, it shall not afterwards be altered or added to, save as provided by Section 152 or on review. We are not now concerned with S. 152 or an application for review. So far as this absolute prohibition for modification of a decree is concerned, some exceptions have been followed in practice. Regarding a decree passed under S. 92 of the C.P.C. admittedly there has been a practice to include a clause in the scheme itself reserving liberty to persons interested to apply from time to time, to the court for modification of the scheme. In Prayaga Doss Jee Varu v. Tirumala Anandam Pillai ((1907) 34 Ind App 78) (PC). The Privy Council itself framed a scheme and one of the terms in the scheme was that liberty was reserved to persons interested from time to time to apply to the High Court for any Page 49 of 107 C/FA/765/2018 CAV JUDGMENT modification of the scheme. Again in Kirpashanker v. Gopal Rao ((1913) 24 Mad LJ 199) the scheme which was framed by the Privy Council in that case contained a clause which provided that the provisions of the scheme might be altered, modified or added to by an application to the High Court of Bombay. The Supreme Court, in Anandrao v. Shamrao (AIR 1961 SC 1206) observed that the Privy Council had not considered whether such a clause could be legally inserted in a scheme, but the fact remained that in the two schemes the Privy Council did insert a clause in each authorising its modification by an application to the High Court. The Supreme Court considered the question whether there was anything in S. 92 of the C.P.C. which militated against providing a clause in the scheme framed thereunder for its modification by an application to the Court framing the scheme. The Supreme Court held that there was nothing in S. 92 which would make it illegal for the Court to provide a clause in the scheme itself for its future modification and that sub-sec. (1) of S. 92 did not bar an application for modification of a scheme in accordance with the provisions thereof provided that such a provision could be made in the scheme itself. After coming to the conclusion that, if there is a provision in the scheme itself providing for its modification an application can be made to the court for such modification. In explaining the nature of the modification, the Supreme Court proceeded to observe:
"A suit under S. 92 certainly comes to an end when a decree is passed therein, including the settlement of a scheme for the administration of the trust. But there is nothing in the fact that the Court can settle a scheme under S. 92(1) to prevent it from making the scheme elastic and provide for its modification in the scheme itself. That does not affect the finality of the decree; all that it provides is that where necessity arises a change may be made in the manner of administration by the modification of the scheme."
The Supreme Court generally agreed with the contention that, if the scheme was amended in pursuance of such a clause in the scheme, it would not amount to amending the decree, the result being that the decree stood as it was and that all that happened was that a part of the decree which Page 50 of 107 C/FA/765/2018 CAV JUDGMENT provided for management under the scheme was being given effect to. On a reading of the decision of the Supreme Court, it is clear that, if the scheme itself provides for its modification, the modification of the provisions of the scheme can be effected for the management of the trust, which does not result in the amendment of the decree. "
25. In Abdul Khair & Anr. vs. Nazir Hossain & Ors., reported in AIR 1960 Calcutta 631, a learned Single Judge of the Calcutta High Court held as under;
"7. A number of cases have been cited which may now be considered. In the case of Sarat Chandra v. Administrator-General of Bengal, reported in AIR 1937 Cal 382, an application was made in 1936 in a suit of 1876 wherein the Court passed a decree for administration of a debutter estate. The original parties were long dead but from time to time there has been substitution of the heirs of the deceased party even after the final decree. The applications were made in the suit pursuant to the "liberty to apply" clause in the decree. In 1936 after the death of Sarat, one of such substituted parties, an application was made by the heirs of Sarat for substitution and for direction on the Administrator- General to pay to the heirs of Sarat the amount payable to Sarat on account of his pala. Ameer Ali J. made the order which was expressed to be a provisional arrangement subject to the right of the heirs of Sarat which would have to be adjudicated in a competent suit. In making the order the learned Judge made the following observation at page 383:
"A suit, no doubt, is determined by a final decree, but according to our view a decree of the kind in question is not wholly rigid, or incapable of further adaptation. The phrase "working out the decree", is somewhat equivocal. If it means simply making the decree as passed effective as between parties to the suit existing of course at this stage in a suit like this the decree has long ago been 'worked out'. On the other view the decree theoretically is never worked out. But it is to be remembered that our Page 51 of 107 C/FA/765/2018 CAV JUDGMENT system cannot be precisely the same as the English system; suits of this nature do not happen in England. In other words I am not without further consideration going to lay down a rule that in such a case as this, after a decree has been perfected as regards the persons in existence there is no power under a liberty to apply to adapt it to supervening circumstances".
8. This is an authority for the proposition that even after the passing of the final decree in a suit for administration of debutter trust the suit cannot be said to be altogether dead and an application can be made thereafter under the "liberty to apply" clause. The tentative manner in which the opinion is expressed must, however, be noted. It however does not lay down or indicate that the Court can pass any order under this clause including the removal of a trustee or shebait or mutwalli or framing a totally new scheme after scrapping the old.
16. It seems to me that when in an administration suit the Court frames a scheme in the final decree and liberty to apply is reserved, the suit is not altogether dead. I respectfully agree with the view expressed by the Calcutta and Patna High Courts an the cases above noted. The Court while laying down the scheme having felt that it might be necessary to give directions and orders to work out the scheme, gave the parties liberty to apply in the suit itself, even after the final decree is passed. For the limited purpose of giving effect to the scheme the suit is pending, even though it has come to an end by the passing of a final decree. In Sadupadhya's case, reported in AIR 1918 Cal 530, Sir Asutosh Mukherjee held that the Court has further power than giving orders for working out the scheme. The Court is competent even to amend the scheme by adding a clause found to be necessary subsequently. But in my judgment, that is the limit."
26. In Shrinivas R. Acharya & Ors. vs. Purshottam Chaturbhuj & Ors., reported in AIR 1953 Bombay 393, a learned Single Judge Judge of the Bombay High Court held as under;
Page 52 of 107 C/FA/765/2018 CAV JUDGMENT"14. It is well established that all orders of the Court carry with them 'in gremio' liberty to apply, in case of judgments in certain matters it- is usual where the necessity for such subsequent application is foreseen to insert in the judgments words especially reserving liberty to any party to apply to the Court. Now, In such cases it may become necessary to approach the Court either to get some directions for properly working out the judgment or it may become necessary to seek adjudication on questions which may subsequently arise. In case of a scheme framed by the Court in a charity suit question may arise of working out the rights declared by the judgment. Or the question may be of some ordinary modification in the scheme rendered necessary to enable the scheme to operate more beneficially. The effect of the liberty to apply in such a case would be to enable the Court to deal with the matter in a summary manner. On the other hand vital and important questions may arise requiring substantial alterations in the scheme. This may also necessitate going into lengthy evidence. It cannot be laid down as a general rule that merely because there is available the procedure by way of any application a substantive suit is necessarily barred. I fail to see how it can be said that asking for alteration of every nature in a scheme at some future date is to reagitate a matter already disposed of in a previous suit. To hold in such a case that the suit would be barred by 'res judicata' would be departing from the reason of the rule. I am unable to subscribe to any such doctrinaire technicality.
Now, it is a well established principle that a scheme once settled by the Court cannot be altered even by the Court except only on substantial grounds. It is true that changes in times and circumstances may 'ex debito justitiae' require that alterations should be made in the scheme to carry out the objects of the endowment and to see that the scheme operates beneficially. At the same time the Court has always to exercise caution in this matter and to see that what has been done by the Court is not disturbed except when there are substantial grounds for doing so and where satisfactory evidence to sustain those grounds is brought before the Court. The paramount consideration must, of course, be the interest Page 53 of 107 C/FA/765/2018 CAV JUDGMENT of the charity."
27. A Full Bench of this High Court in the case of Jai Ranchhod Bhogilal Sevak & etc. vs. Thakorelal Pranjivandas Jumkhawalal & Ors., reported in AIR 1985 Guj. 1, was called upon to decide a question whether the power of appointment of trustee in accordance with the instrument of trust is subject to the provisions of section 50 of the Act, 1950 when such power is conferred on the District Court. A Division Bench of this Court, in the case of Yasinmian Amirmian Faroqui vs. I.A. Shaikh, (1977) 18 GLR 54, held that in view of the provisions of section 50 of the Act, the provision in the scheme already settled would be overridden and would have to be adjusted and reshaped subject to the provisions of section 50 of the Act. The Division Bench took the view that no suit or proceeding for any of the reliefs mentioned therein (including the appointment of a new trustee) would be maintainable without the consent of the Charity Commissioner. A learned Single Judge of this Court was not able to agree with the reasonings of the Division Bench in Yasinmian's case (supra) and, therefore, directed that the matters be placed before the learned Chief Justice. In such circumstances, the Full Bench was constituted. The observations of the Full Bench also throws a considerable light on the issue in question. I may refer to the relevant observations;
"8. From the above relevant provisions. it is clear that S. 92 of the C. P.C. has ceased to apply to the public trusts after the commencement of the Bombay Public Trusts Act. The question is what is the effect thereof coupled with the enactment of a corresponding provision in S. 50 Page 54 of 107 C/FA/765/2018 CAV JUDGMENT of the Act. The Division Bench in Yasinmian's case, ((1977) 18 Guj LR 54) in paras 10 and 11 observed as under:
"In view of the provisions of S. 50 which is a special legislation on the subject we are of the opinion that to the extent to which S. 50 is repugnant to or in conflict with S. 92 of the Civil P. C. it must override the general provisions contained in S. 92 of the Civil P. C. If S. 50 has the capacity, as we hold, to override the provisions of S. 92 of the Civil P. C. it must necessarily have the capacity to override the relevant clause in any scheme settled in a suit filed under S. 92, C. P.C. A scheme settled in a suit filed under S. 92 C.P.C. is not independent of that section nor can it be placed above it. The rights or remedies which have been conferred upon the parties by a scheme settled in a suit under S. 92, C.P.C. can only survive in their fullest form if S. 92 survives. If it does not survive, they have got to be adjusted and reshaped in the light of the provisions of S. 50 of the Bombay Public Trusts Act, 1950.
11. Section 52 of the Bombay Public Trusts Act, 1950 goes a step further and enables us to take this view with greater force. Sub-section (1) of S. 52 provides as follows: 'Notwithstanding anything contained in the Civil P. C. 1908, the provisions of Ss. 92and 93 of the said Code shall not apply to public trusts'.
It is, therefore, clear that so far as the public trusts to which the Bombay Public Trusts Act, 1950 applies are concerned, S. 92 and the rights and remedies provided there under have been repealed. There from resort by anyone can be had to S. 92 in order to invoke his remedy there under. Therefore, it is not merely by virtue of the fact that there is a special legislation in the shape of S. 50 which overrides the general legislation in the shape of S. 92 of the Civil P. C. but also on account of the provision of sub-section (1) of S. 52 which in terms repeals or renders inoperative S. 92 of the Civil P. C. in relation to the public trusts that we say that the remedy provided under. S. 92 of the Civil P. C. cannot be resorted to in respect of matters concerning public trusts governed by the provisions of the Bombay Public Trusts Act, 1950. If the remedy of filing a suit under S. 92 of the Civil P. C. has been repealed in relation to public trusts by virtue of sub- section (1) of S. 52, it is clear that any remedy provided Page 55 of 107 C/FA/765/2018 CAV JUDGMENT by any clause in a scheme settled in a suit filed under S. 92 of the Code of Civil P. C. must also give way to the provisions of S. 50 of the Bombay Public Trusts Act, 1950. If the remedy provided under S. 92 does not survive by virtue of the provisions of Ss. 50 and 52 of the Bombay Public Trusts Act, 1950, the relevant clause of a scheme which provides a remedy either for the removal of a trustee or for the modification of a scheme or for any other purpose concerning a public trust and falling under the provisions of the Bombay Public Trusts Act, 1950 cannot, be given the super legislative status so as to override the provisions of Ss. 50 and 52 of the Bombay Public Trusts Act, 1950."
Thus the Division Bench took the view that the relevant clause of the scheme which provides a remedy either for the removal of a trustee or for modification of a scheme or for any other purpose concerning a public trust and falling under the provisions of the Bombay Public Trusts Act cannot override the provisions of S. 50. The facts in that judgment show that the Division Bench was concerned with two-cases, which were disposed of by common judgment. One case related to removal of a trustee (vide para 2) and another case related to modification of a scheme (vide para 6) and in para 1, the Court has framed the question which had arisen for its consideration as follows:
"Whether an application either for removal of trustees or for modification of the scheme filed under the relevant clause or in the scheme settled in a suit filed under S. 92 of the Code of Civil Procedure before the Bombay Public Trusts Act, 1950 came into force is maintainable in view of the provisions of S. 50 of the Bombay Public Trusts Act, 1950?"
It is thus clear that the Division Bench was called upon to decide the question regarding the procedure to be followed for removal of a trustee and modification of a scheme. Section 50 provides for both these reliefs in CL
(b) and (g). The Division Bench is right in holding that as far as these questions of removal of trustees and modification of the scheme are concerned, the rights and remedies have got to be adjusted and reshaped in the light of provisions of S. 50 of the Act. However the further and wider observation extending it "for any other purpose concerning a public trust- was not necessary for the Page 56 of 107 C/FA/765/2018 CAV JUDGMENT Division Bench to refer to and the Division Bench has, in fact, not considered any other purpose in respect of which the remedy is required to be adjusted or reshaped in the light of provisions of S. 50 of the Act.
9. The present question of appointment of a trustee in accordance with the scheme (instrument of trust) was not before, the Division Bench and, in fact, the Division Bench has not considered the question of appointment of new trustee as per the existing scheme in a vacancy arising in ordinary course by death or resignation and not by removal.
10. The learned counsel far the appellant in First Appeal and the respondents in the Revision Application, has submitted that the District Court under Clause (7) of the Scheme is a Court of law as held by P. N. Bhagwati, J. (as he then was in this court) and not a persona designate in the case of Jagmohandas v. Jamnadas. 6 Guj LR 49: (AIR 1965 Guj 181). It was also a case regarding Dakar Temple, and the learned counsel has submitted that under Clause 7 when the District Court is given power to appoint trustee and no procedure is prescribed, the District Court has to follow the procedure of S. 50 and if the requirements of S. 50 (consent of the Charity Commissioner) is not fulfilled, the application is not maintainable and the District Court has no jurisdiction to entertain that application.
11. However the question is whether S. 50 has any application when an application is made under Clause 7 of the instrument of trust. It is not an application for removal of a trustee and appointment of a new trustee in that place. Every instrument of trust, whether created by author of the trust or under a scheme, has to provide for mode of succession to the office of the trustee. The author or the scheme may provide for succession of trustee and filling in the vacancy in the office of the trustee in numerous us diverse ways, some of which may be, election, cooption, nomination, appointment and the power of nomination or appointment may be located in specified authorities. In a given case it could be the Collector, it could be the Government it could be a Court or a District Court. There are thousands of public trusts register under the Act having different modes of succession and filling in the vacancies raiser", in ordinary and natural course by death and resumption and the Page 57 of 107 C/FA/765/2018 CAV JUDGMENT instrument of trust is required to make provision for the same and the Charity Commissioner after due inquiry under S. 19 is required to record his findings with reasons as to the mode of succession to the office of the trustee and that finding is required to be entered into the public trust register. Such entries are final and conclusive under S. 21(2) of the Act. In the present case the instrument of trust provides for filling in vacancies by the District Court. Therefore, in accordance with the instrument of trust, the District Court is called upon to fill in the vacancy by appointment of a new trustee. Such an application to the District Court cannot be said to be in the nature of a suit because, the instrument of trust itself provides for a specified number of trustees and for mode of succession in the office of the trustees and filling in the vacancies arising in the office of the trustees. If the instrument of trust had provided for any other authority than the District Court for filling in the vacancies. no question would have arisen of obtaining permission of the Charity Commissioner under S. 50 of the Act or making an application to such specified authority. It would not make any difference whatsoever when such specified authority in the present case happens to be the District Court. The District Court is not called upon to fill in the vacancy under S. 50 of the Act. Appointment of trustees and the mode of succession are ordinarily the matters for the author of the trust and these are the matters pertaining- to its constitution and in giving effect to the same, if the authority specified in the instrument of trust is approached in accordance with the constitution of a trust (the instrument of a trust) no question arises of a Court under the Bombay Public Trusts Act exercising any power of appointment of a trustee under S. 50. Section 50 contemplates invoking the jurisdiction of a Court in one of the three contingencies; namely, 0 breach of a public trust~ ( ii) recovery of possession of property of public trust and (iii) where the permission of the Court is deemed necessary for the administration of the new public trust. Admittedly conditions Q and (ii) are not attracted. The learned counsel for the appellant submits that condition No. (iii) is attracted that the permission of the Court is deemed necessary for the administration of a public trust, by seeking a relief of appointment of a new trustee. Appointment of a new trustee is not always a necessary direction for administration of a public trust. The instrument of trust provides for the mode of Page 58 of 107 C/FA/765/2018 CAV JUDGMENT succession to the office of a trustee. It is only then independent of the instrument of trust or as a consequence of a removal of any trustee by Court if any direction becomes necessary f or appointment of a new trustee for the administration of public trust that third condition would be attracted. In case of ordinary and natural vacancies mode of succession provided by the instrument of trust has to be followed and the authority specified in the instrument of trust has to be approached and merely because that authority happens to be District Court in the present case it cannot be held that condition No. (iii) is attracted. The order of the Court is necessary for appointment of a new trustee, in this case because the District Court happens to be the authority under the instrument of trust for filling in the vacancy. Therefore, the District Court is invited to fill in the vacancy under CL 7 of the instrument of trust and not under S. 50 and it is not necessary to move the Court under S. 50 of the Act in the present case. As pointed out earlier instead of the District Court if any other authority was specified to fill in the vacancy, no question would have arisen of applicability of S. 50 of the Act and the authority specified in the trust would have and could have made valid appointments and filled in the vacancy. Here the District Court is exercising the same power 'under the instrument of trust. If independent of CL (7) any direction was necessary for appointment of a trustee then third condition would have been attracted and the consent of the Charity Commissioner under S. 50 would have been necessary. However. in the present case such consent is not necessary because, the application does not attract the applicability of S. 50 of the Act. "
28. A learned Single Judge of the Bombay High Court in the case of Minod Rustomji Shroff vs. Charity Commissioner, 2005(2) MhLJ 1135, had the occasion to consider the Full Bench decision of this Court, referred to above. I may quote the relevant observations;
'6. The learned counsel Mr..Sethna appearing for the respondent no.2 has interalia contended that this court has no jurisdiction to entertain the petition. He has taken me through the various provisions of Bombay Public Page 59 of 107 C/FA/765/2018 CAV JUDGMENT Trusts Act, 1950 particularly the definition of the word "Court" under s.2(4), the provision of s.50, s.50(A), s.52, s.85 and s.86 of the Bombay Public Trust Act, 1950. It has been interalia contended that the word court defined by the provisions of s.2(a) means in the Greater Bombay, the City Civil Court and elsewhere, the District Court. It has been further contended that the application by way of Miscellaneous Petition would not lie in this court because for framing of a scheme or variation or alteration therein an application should be made to the Charity Commissioner u.s.50 clause (iv)(j) of the Bombay Port Trusts Act, 1950 and thus, he alone would have jurisdiction to alter, amend, verify or form a new scheme for the election of trustees of Parsee Panchayat. It has been contended that u/sec.52 the provision of s.92 and 93 of Civil Procedure Code has been repealed and they cease to apply to the Public Trusts and therefore the present proceedings initiated in this court is totally beyond the jurisdiction of this court and cannot be entertained. This issue of jurisdiction has also been supported by other intervenors.
7. Mr.Sethna has relied upon the Judgment of the Gujarat High Court in the case of Jai Ranchhod Bhogilal Sevan and etc. v. Thakorelal Pranjivandas Jumkhawalal and Ors. etc. reported in AIR 1985 Gujarat 1 Full Bench Pg.1 as well as the Judgment in the case of Yasinmian Amirmian Faroqui & Ors v. I.A.Shaikh & Ors. reported in Gujarat Law Reporter 1977 Pg.54 and has contended that the provision of s.92 and 93 of the Civil Procedure Code would not applicable once the provision of s.52 of Bombay Public Trusts Act 1950 is enacted specifically lays down that the provision of said Civil Procedure Code shall not apply in the case of the public trust and the trusts which are governed by the provision of Bombay Public Trusts Act, 1950.
8. The learned counsel Mr.Dada appearing for the petitioner has on the other hand drawn my attention to the provisions of s.92 and 93 of Civil Procedure Code, 1908. Mr.Dada the learned counsel for the petitioner has also drawn my attention to the Judgment of the Apex Court in the case of Raje Anandrao v. Shamrao and Ors., AIR 1961 SC 1206 particularly para 6 to 10 of the said judgment and has interalia contended that this court will have a power to modify the scheme if the same is settled in a suit by passing a decree reserving thereunder right Page 60 of 107 C/FA/765/2018 CAV JUDGMENT to apply for alterations and modifications of the scheme much prior to the provision of Bombay Public Trusts Act 1950 are enacted. It has been contended that the provision of s.52 of the Bombay Public Trusts Act, 1950 would only apply if the suit is filed for settlement of the scheme subsequent to the amendment of the Act but in a case where the scheme is already settled u.s.92 and 93 of the Civil Procedure Code and the scheme reserves its power to further act or modify the scheme in such cases the provision of s. 92 and 93 will continue to govern the situation and provision of s.52 of the Bombay Public Trusts Act, 1950 r.w s.50 (4) would not be applicable. Though the aforesaid judgment of the Apex Court do not consider the provisions of Bombay Public Trusts Act. The said judgment of the Apex Court has been followed by the learned Single Judge of this Court in the case of Petitioner itself and the learned single Judge has in his judgment delivered in Miscellaneous Petition No.270 of 1969 decided on 2.4.1970 has held as under:
"Mr. Zaiwala on behalf of Mr.B.K.Karanjia has raised a preliminary contention to the hearing of this petition. He urged that this Court has no jurisdiction to entertain and dispose of this petition. He submitted that the proper remedy for the Trustees is to file a suit in accordance with the provisions of section 50 of the Bombay Public Trusts Act, 1950. He also opposed the amendments suggests by the Trustees on the ground that they did not give much wider franchise to the members of the Parsee Committee. He said that the members of the Anjuman Committee should be elected on the basis of adult franchise by the members of the Parsee Committee. However, he suggested that such an amendment would be a substantial alteration f the scheme sanctioned by this court and the proper remedy of his client would be to adopt appropriate legal proceedings as may be permitted by law. So far as the Charity commissioner is concerned, he has submitted to the orders of the Court and he has no objection to the petition being allowed. The first question that has to be considered is whether this court has jurisdiction to entertain this petition. Clauses 88, 90, 91, 94 and 95 of the Scheme sanctioned by this Court provide for the procedure to be adopted for modification or alteration of the Scheme. Under clause 88 it is competent to a majority of the Trustees at any time, to submit to a judge of the High Court in chambers for Page 61 of 107 C/FA/765/2018 CAV JUDGMENT sanction any proposals for alteration in or additions to the provisions of this scheme. This clause further provides that the trustees shall give notice to the Advocate General, which having regard to the provisions of the Bombay Public trust Act has to be given to the charity Commissioner. Clause 90 provides for the manner in which such an application has to be made. Clause 91 provides for publication of such an application in the newspapers. Clause 94 gives liberty to the Judge in chambers to permit any members of the Parsee Committee to appear in person or through Counsel or attorney. Clause 95 is a consequential clause and it says that any alteration or modification that is sanctioned by the Judge in chambers shall form part of the scheme. Thus, under the scheme as framed by this Court, the High Court has jurisdiction to entertain a petition for alteration or addition to the provisions of the scheme."
9. In the aforesaid Judgment the Single Judge of this court has followed the judgment of the Apex Court and has held that the provision of s.50 of Bombay Public Trusts Act, do not apply to the cases of a kind where the scheme is sought to be altered by virtue of the power reserved under the scheme while passing a decree prior to the enactment of Bombay Public Trust Act, 1950. It has been held that irrespective of the provisions of the said Bombay Public Trust Act this court alone shall have jurisdiction to modify the scheme which is settled by it while passing a decree.
10. In my opinion in the view of the Judgment of the Apex Court where the provision of s.92 and 93 has been considered and the Judgment of the Single Judge of this court which has been decided following the apex court judgment in the case of Raje Anandrao (Supra) I am of the opinion that the issue of jurisdiction to entertain the present Misc. Petition and decide the same is squarely and directly covered and therefore, I am required to hold that notwithstanding the provisions of s.52 of the Bombay Public Trust Act, 1950 in respect of the scheme settled by this court under the decree prior to enactment of the said Act if it reserves a right to alter or modify the scheme then this court shall continue to have jurisdiction to alter, modify or verify the scheme but shall have no jurisdiction to replace and/or substitute the scheme in its Page 62 of 107 C/FA/765/2018 CAV JUDGMENT entirety.
11. In the present petition admittedly the scheme was framed on 18.6.1910 in Suit No.689 of 1906 which has been amended from time to time by virtue of the power reserved under the said scheme. In view thereto this court has reserved power to amend by virtue of the provisions of the scheme itself by way of an application for amendment the scheme and not by a separate suit . Thus, I am in agreement with the view taken by the learned single Judge in Misc.Petition No. 270 of 69 and accordingly I hold that this court has jurisdiction to entertain the present petition. "
29. I also derive support to fortify my view from one order of the Hon'ble Supreme Court in this regard. The subject matter of challenge before the Supreme Court was a judgment and order delivered by a Division Bench of this Court in the case of Laljibhai Bhikhabhai Dhaduk vs. Trust of the Temple of Shree Laxminarayan Dev Temple & Ors., Misc. Civil Application No.3154 of 2009. The civil misc. application was filed by the applicants in the Letters Patent Appeal No.183 of 1973, whereby this Court had formulated a scheme pursuant to the proceedings undertaken under the provisions of the Bombay Public Trusts Act, 1950. In the said case, clause 47 of the final scheme framed by this Court, reads as under;
"Cl. 47 - Any two members of the Board, the Acharya or any, two Satsangis, two Tyagis or the Charity Commissioner shall be entitled to apply to the High Court of Gujarat for directions and/or modification, alteration or verification of the Scheme"
30. The applicants, being one of the categories of the persons mentioned in clause-47, referred to above, applied to this Court for the following reliefs;
Page 63 of 107 C/FA/765/2018 CAV JUDGMENT"(A) This Court may be pleased to direct to amend the Scheme as provided in paragraph No. 27 above Amendment made as per order passed by this Court dated February 11, 2010:
(AA) Be pleased to direct that the election process be conducted from the stage of preparation of list of voters by independent persons so appointed by this Court, may be a retired Judge of this Court;
(BB) Be pleased to direct that no election process will commence further and no step in furtherance of deciding and/or determining objections received by the respondents be stayed till further orders.
(B) Pending admission and final disposal of this application be pleased to direct that the next ensuing election of the Board of Managing Trustees of the Trust be held and conducted by an officer of this Court who shall not be below the rank of Dy. Registrar and the said Election shall be conducted following general guidelines issued by the Election Commission of India for holding of the legislative and parliamentary elections.
(C) Be pleased to grant such other and further reliefs as may be deemed fit in the facts and circumstances of the case."
31. The principal contention of the applicants before the Division Bench was that when the scheme makes a provision for amendment, and as the scheme has been framed by the High Court, then it is the High Court only that can effect the necessary amendments to the scheme and not the District Court. The contention came to be negatived by the Division Bench and it was ruled that the remedy for the applicants was to file a suit under section 50 of the Act. I may quote the observations of the Division Bench in this regard.
Page 64 of 107 C/FA/765/2018 CAV JUDGMENT"10. The principles of statutory interpretation as enunciated hereinabove are in conformity with the law laid down by the Hon'ble Supreme Court. The powers of the Court are circumscribed by the principle that any order passed by it cannot be inconsistent with the subsisting provisions of the statutory law. In Clause 47 while the Scheme was sanctioned by this Court it ordered that for any amendment in the Scheme, concerned parties will be at liberty to approach this Court but we see that in Section 50 Clause (g) of the Act a clear provision is made for variation or alteration of a Scheme which is already settled. Clause 47 is part of a settled Scheme. Before any amendment is sought in this Scheme, effect is requried to be given to the provisions made in Section 50 of the Act and the course as provided in this Section has to be adopted. This Section requires that any Suit in this regard has to be instituted in a Court within the local limits of the jurisdiction - the matter of trust is situated with the permission of the Charity Commissioner for variation or alteration in the Scheme already settled. In view of expressed provisions of Section 50 of the Act it can safely be concluded that in view of the statutory providence, the course adopted by the applicants to move a Miscellaneous Application before this Court with the allegations of bias against the trustees in the matter of conduct of election, exercise of jurisdiction by this Court would not be a proper course more particularly in light of the findings of the Division Bench of this Court in the matter of YASINMIAN AMIRMIAN VS. I.A. SHAIKH (supra) wherein this Court has held that Clause of the Scheme cannot be given superior legislative status to the sanctioned Scheme overriding the provisions of Section 50 of the Act. It is no doubt true that the Court of superior jurisdiction has settled the Scheme in the instant case but that by itself would not be sufficient to hold that any application in the face of Section 50 of the Act can be maintained. The remedy has to be reshaped in light of the provisions of Section 50 of the Act.
11. In view of the aforesaid, we are of the considered view that the application, though is in terms of Clause 47 of the settled Scheme but such settled Scheme can only be amended according to the statutory provisions as contained in Section 50 of the Act. In any case the Page 65 of 107 C/FA/765/2018 CAV JUDGMENT allegation of bias will be required to be established by leading evidence and that cannot be the scope of Miscellaneous Application before this Court because the question of fact cannot be gone into in Miscellaneous Application and before arriving at the findings of bias an exercise of scrutiny of evidence would be required which is beyond the scope of Miscellaneous Application. In that view of the matter the Miscellaneous Application appears to be misconceived remedy."
32. The Supreme Court, while allowing the appeal filed by the original applicants, held as under;
'Leave granted.
This appeal has been filed against the impugned judgment and order dated 26th February, 2010 passed by the High Court of Gujarat at Ahmedabad in Misc. Civil Application No.3154 of 2009 in LPA No.183 of 1973 in FA No.543 of 1970.
The facts have been set out in the impugned judgment and hence we are not repeating the same here.
Ordinarily, when a trust is created, the trust deed itself sets out the scheme of the trust. Any one who wishes to get the scheme modified can go under section 50 of the Bombay Public Trusts Act, 1950 ( for short "the Act") before the District Judge/ Charity Commissioner. However, in the present case, the scheme was not created by the trust deed but it was created by the High Court itself by an order dated 4.5.1973 which was no doubt a final order but if any body wished to get the scheme modified he has now to approach the High Court itself in view of clause 47. It will be strange to say that the District Judge can modify a scheme created by the High Court.
Hence, we allow this appeal, set aside the impugned order and remand the matter to the High Court to decide the modification application in accordance with law after hearing the parties concerned, expeditiously, preferably within four months from the date of receipt/production of Page 66 of 107 C/FA/765/2018 CAV JUDGMENT a copy of this order. If recording of evidence is necessary, the High Court may also record the evidence.
Insofar as interlocutory applications are concerned, we are not passing any order on the same and anybody who has any grievance may approach the High Court in respect of the prayer made in the interlocutory applications. If the same are filed they shall also be decided in accordance with law expeditiously after hearing the parties concerned."
33. Thus, having regard to the position of law, referred to and discussed above, I am of the opinion that the application filed before the court below, seeking necessary directions and modification in the scheme and election rules, was maintainable in law. There was no need, as such, for the original applicants to file a suit under section 50 of the Act. I do not propose to lay down, as a proposition of law, that once there is a liberty to apply clause like clause 48, a suit under section 50 of the Act would not be maintainable. Section 50 of the Act would come into play if lengthy evidence is required to be laid on the issues or complex questions are raised for the purpose of adjudication. The liberty clause enables the court concerned to deal with the matter in a summary manner. In the case on hand, all the directions are for the purpose of providing free and fair election. I don't find any complex issues involving in the matter. Say for instance, the court below has said something about providing of identity cards to the voters. Such a direction would be a step in the process of providing free and fair election. Having regard to all these, I am of the view that it was not necessary to institute a suit under section 50 of the Act.
Validity of the Directions:-
Page 67 of 107 C/FA/765/2018 CAV JUDGMENT34. The second question for my consideration is whether the directions issued by the court below are just, proper and legally tenable in law. In this regard, I must look into the impugned judgment and order of the court below. The relevant paras are 13 to 21. The same are as under;
"13. Now coming to the issues involved in the CMA No.140 of 2011, there are several modifications, sought by the applicants in the election process. It is submitted that the existing trust Temple Board is not conducting the election process in fair manner. Several discrepancies have been brought by the applicants and such grievance has led them to file the present CMA. One of the ground alleged is regarding the manipulation made in the number of voters wherein, artificial majority or artificial minority had been created to benefit the trustees directly or indirectly which consequently results the breach of trust. Referring to the statutory provisions contained in Bombay Public Trust Act, if any act is done by any or all of the trustees for taking undue benefit or any personal gain at the election by manipulating the election process, safeguards are already provided under the Act and there is also inbuilt mechanism under the Act to the effect that such person may not be accepted as trustees validly elected or even they may be removed as trustees. The Charity Commissioner is empowered to deal with such issues under the Act. From the record and submission it appears that such application was made before the Charity Commissioner, which has been decided in Nov.2011 with the findings that since the present matter is already pending before the District court, let the same be decided. The mechanism has also been provided under the Act to get the opinion of the court which would be normally district Court to finalise the issues of the scheme and the rules thereof.
14. It is pertinent to note that the elections in the religious or charitable trusts should be pious and transparent and should have freedom to manage the affairs through the person who may be either beneficiary or upon whom the faith is reposed by the voters in a Page 68 of 107 C/FA/765/2018 CAV JUDGMENT lawful manner at the election. It is to quote that the religious and charitable trusts enjoy the freedom under Article-26 of the Constitution of India. It is in the interest of all the devotees to take care of instilling the confidence in the election process of the board. It is true that unless the manipulation at the election is satisfactorily demonstrated, inference cannot be done to the effect for manipulation merely because the allegation is made in the application that the trustees of the exiting Temple Board are not following the fair and transparent election process. At the same time, it is also to be borne in mind the instilling confidence in the election which would be an aspect that may be shaken amongst large number of voters or Haribhakts and, therefore, the confidence of voters is required to be instilled in the election process.
15. The principal and foremost grievance of the applicants of CMA No.140 of 2011 is against the power entrusted by the Temple Board regarding election process and as on date, it is alleged that several voters are added in the voters' list who are either not existing or their identity is not disclosed and, therefore, due to such mal-practice or manipulation that has taken place at the election by the board, it is prayed to over all amend the Rules of election and appoint any independent agency or any retired District Judge to be an Election Commissioner who shall administer the entire election process. The other side i.e. the exiting Temple Board had contested the said issue and averred that the Temple Board is merely declaring the election and thereafter, the Election Officer is appointed who have a supervision over the entire election process. However, it is submitted on behalf of the Temple Board, that the Board is only announcing the election and is handed over to the officer appointed by them, thereafter the process is being carried out under the supervision of the court, but the applicants' apprehension is that if the board is entrusted with such powers, the loyalty of such person appointed as Election Officer, would he towards the Temple Board. Therefore, it would be in the interest of the entire Sampraday of Swaminarayan sect and the Haribhakts to conduct the election under the supervision of an independent person who would discharge his duty without being influenced by any of the parties, contesting Page 69 of 107 C/FA/765/2018 CAV JUDGMENT the election. It Would also safeguard the confidence of the voters, if the existing Temple Board Committee does not associate themselves in the election process and the same would show independent functioning of the Election Officer. From the record and the rules of election, it appears that till date, the existing trustees of Temple Board were having the control over election process, by which the present applicants of CMA No.140 of 2011 are aggrieved due to various reasons. However, the Temple Board had denied having the control over the election process, but the record says contrary facts regarding the control of election process.
16. From the record, it also transpires that earlier a CMA was filed by several devotees and followers before the District Court seeking a prayer to give the Receipt Books in various villages, where the amount of donation (Dharmada) was collected but the receipts were not given to the devotees. However, in this regard, an order was passed by the District Judge, Bhavnagar on dated 30-09-2010 in CMA No.216 of 2009, directing the trust of Shri Gopinathji Dev Mandir to scrupulously follow the scheme, framed in RCS No.1 of 1975 and the Rules of Election, framed in CMA No.57 of 1993 and direction was also issued to provide sufficient Receipt Books at various villages so as to avoid the hardships to the Satsangis who are willing to give donation to the temple. This leads to believe that the Satsangis, Tyagis, and Haribhakts, etc. lack faith in the existing board and therefore there had been several litigations filed and pending, in the District Court and Higher Courts.
17. An application has been filed on record vide Exh.- 129, wherein a Sadhu had urged to give them 3 voting right as it was earlier, prior to formation of the rules, however, no contrary submissions are found on record on behalf of the Temple Board, in regard to the said application. Though considering the fact that the said rule was applicable in the scheme enacted in RCS No.1 of 1975, the same is to be applied in all the election process and everyone shall be given the equal voting, right. It is worth to note that the election process must be transparent, fair and shall be far away from any influence so as to safeguard the right of the voters and instill their confidence. It is also pertinent to note that the voters also must be fair and genuine so as to elect the proper and competent candidate. It does not appear that the Page 70 of 107 C/FA/765/2018 CAV JUDGMENT existing trustees of the Temple Board would deny conducting the fair and transparent election in the said temple. Our country believes in democracy where every person has a right to speak and avail his remedies from the appropriate forums. It is well known that in our democratic country, the elections of Parliament are held and always an endeavour has been made to make the process transparent, however, it is not possible to satisfy each and every person. Similarly, in the present case also, the present applicants have sought various amendments which have been opposed by the trustees of the Temple Board contending that the election process is carried out fairly and smoothly and no such modifications are required. In the Indian constituency, every citizen has been conferred with the right to elect the candidate and the same cannot be restricted by any means, except specifically provided in any law for the time being in force. Even the Rules or the Schemes cannot be contrary to the Act or our Constitution.
18. Further, it is brought on record that the campus of Shri Gopinathji Dev Mandir is having space of approximately 70 x 100 mtrs. which is very less and during the election time, several difficulties arises such as parking, passage for other pedestrian and vehicles, the voters have to stand in long queue which goes to approximately about 1 km and the said issue also disturbs the traffic of Gadhada as well as the other shops nearby. It is not in dispute that there is a huge list of followers and devotees in Swaminarayan Sampraday and so far as Shri Gopinathji Dev Mandir Trust at Gadhada is concerned, there are approximately more than 50,000 devotees, followers, saints, etc. and, therefore, a proper management during the election process of the said temple is required to be made so as to avoid the inconvenience, caused to the other public of Gadhada as well as visitors and tourists and the residents thereof. However, the other side i.e. Temple Board had denied of having less space in the Temple premises and submitted that it is sufficient and every time the election had been held in the same premises without any difficulty. But is worth to say that the population of the country and consequently the number of devotees and Haribhakts in the Swaminarayan sampraday are increasing day by day and the situation is not the same as it was prior to a Page 71 of 107 C/FA/765/2018 CAV JUDGMENT decade and therefore there might be shortfall of the place for the election. Even otherwise there shall not be any impediment. to the existing Temple Board, if for the sake of organized and smooth election process the center of election is enhanced to other place also. The applicants have suggested a place, named "Laxmivadi"
which is nearby the Gopinathji Dev Mandir and under the same trust. The same is open space which is approximately 40 to 50 acres and several amenities are available on the said open land. There is no specific reason tendered by the Temple Board as to why this space cannot be used for as polling-booth for election. Considering the convenience of the voters as well as general public of Gadhada, if two centres are made as polling-booth i.e. one within the campus of "Gopinathji Dev Mandir" for the 3 posts of Sadhus i.e. Tyagi, Parshad, Brahmachari and the other polling-booth at "Laxmivadi" for 4 posts amongst Gruhasth i.e. Satsangis and Haribhakts, it would not be anywhere contrary to the Rules or the Scheme of Gopinathji Dev Mandir Trust and the same would suffice the administration on the day of election at Gadhada.
19. In the aforesaid View, it is necessary to make arrangement so as to organise the election process in a proper way which shall be ease for the existing Temple Board as well as the other saints and devotees who are the objectors herein and vis-a-vis, it shall also be ease for the other communities and residents thereof. It is not in dispute that the Rules framed in CMA No.57 of 1993 were consistent to the provisions of the scheme made under Bombay Public Trust Act. However, for any modification in the said Rules, permission is required from the District Court. In view of this fact, to conduct the election of Shri Gopinathji Dev Mandir Trust in a transparent, smooth and fair way, certain modification may be allowed.
20. Applicants of CMA No.140 of 2011 had also filed a contempt application against the Trustees of Temple Board alleging that though the litigations are pending before the court but the Temple Board had started collecting the amount of Rs.250/- and Rs.300/- for the purpose of election, in support thereto the applicant had produced several receipts of the same issued to the Page 72 of 107 C/FA/765/2018 CAV JUDGMENT donors. In this regard it is to be considered that though the said amount is collected but it does not Specify that the same is collected for the purpose of the election and it shall be applicable to the current election process. However, Temple Board had also published an advertisement on declaring the election to be held on 31- 03-2018, which is definitely an adverse conduct on the part of the Trustees of the Temple Board. As there are several litigations pending, there should not be any hue and cry to declare such election, more particularly when the applications are about to be decided. Although, considering the fact that the Temple Board had considered the existing rules of election and there is no breach of the existing rules and even there was no stay as to conduct the election, nothing remains to be decided in regard to the contempt application. However, the advertisement issued is in accordance to the existing rules and certain modification are made which shall be applicable to the present election, it would be justified to cancel the said advertisement of election to be held on 31-3-2018 and after the implementation of the rules modified herein, the same be followed for the purpose of election process.
21. However, since both the applications are to be decided, the fairness, transparency and genuineness in the election process are the foremost elements to be kept in mind so as to maintain the belief and faith of the devotees and followers. In this regard, it would be justified if some other person is appointed as the Election Commission instead of the existing trustees of the Temple Board who had always carried out the election process. Therefore, I am of the view that to balance the grievance of both the sides, the District Collector, Botad may be appointed as the Election Officer for the entire election process of the Gopinathji Dev Mandir Trust, Gadhada. "
35. The modifications are as under;
"(A) The District Collector, Botad is hereby appointed as Election Officer and he shall be in the sole charge of conduct of election who shall be assisted by the Assistant Charity Commissioner, Botad.Page 73 of 107 C/FA/765/2018 CAV JUDGMENT
(B) The existing Temple Board of Gadhada shall inform regarding the election to the District Collector, Botad and shall finalise the date and the programme of the election at (1) the campus of Gopinathji Dev Mandir which shall be the polling-booth for 3 seats of Sadhus i.e. Tyagi, Parshad and Brahmachari and (2) Laxmivadi shall be the polling-booth for 4 seats of Gruhasth i.e., Haribhakts and Satsangis and District Collector, Botad shall perform his duty as the Election Officer.
(C ) The District Collector, Botad, in consultation with the Assistant Charity Commissioner, Botad, may appoint other officers for the purpose of election and such appointee must not have any conflict of interest and they shall not be the Satsangis or Haribhakts of the Gopinathji Dev Mandir. The District Collector, Botad, Assistant Charity Commissioner, Botad and other appointee, if any, shall be paid the allowances and remunerations from the Trust fund as determined by the Election Officer and in case of any dispute regarding the remuneration, the order of the District court, shall be final.
(D) The Election Officer with the assistance of Assistant Charity Commissioner, Botad and the Chairman of the existing Temple Board shall have all the rights and powers to consider the objection against the preliminary voters' list, which shall be prepared by the existing Trust Board, alongwith the photographs and other allied details of the voters and the final voters' list shall be prepared as per the direction and order of the Election Officer.
(E) To conduct the fair and transparent election, District Collector, Botad, i.e, Election Officer shall be entitled to give necessary directions and to take the appropriate decisions and during the election process, the members of the existing Temple Botad shall not be entitled to associate themselves in the conduction of election, save and except where the Election Officer requires their assistance or presence.
(F) To fill up the 4 seats of the Gruhasth in the Temple Board, 4 votes can be given to the candidate in Gruhasth sect, but no one shall give more than one vote to each candidate, similarly in the Sadhu, i.e Tyagi Sect to fill up the 3 post of Sadhu, Parshad and Brahmchari, they shall Page 74 of 107 C/FA/765/2018 CAV JUDGMENT have right to give 3 votes to the candidates in any of the sect, but no one shall be entitled to give more than one vote in each sect of Tyagi i.e. Sadhu, Parshad and Bhramchari.
(G) Instead of Temple Board the election process is to be carried out by the aforesaid election commissioner, whenever applicable and the rest of the Rules remain static."
36. The only serious objection raised by the appellants herein is with regard to the modification, as contained in 3(f) of the operative part of the order. 3(f) reads as under;
"(F) To fill up the 4 seats of the Gruhasth in the Temple Board, 4 votes can be given to the candidate in Gruhasth sect, but no one shall give more than one vote to each candidate, similarly in the Sadhu, i.e Tyagi Sect to fill up the 3 posts of Sadhu, Parshad and Brahmchari, they shall have right to give 3 votes to the candidates in any of the sect, but no one shall be entitled to give more than one vote in each sect of Tyagi i.e. Sadhu, Parshad and Bhramchari."
37. A lot of hue and cry has been raised as regards the modification as contained in clause 3(f), referred to above, because according to the appellants, the same is violative of Articles 25 and 26 of the Constitution of India. Let me clarify that the modification, as contained in clause 3(f), referred to above, is pursuant to an application Exh.129 filed by the two Satsangis. Initially it was vociferously argued that the application, Exh.129 is not maintainable in law because the same was filed only by one Sadhu, whereas the legal requirement is that such application has to be filed by two Sadhus. This aspect was clarified by the learned counsel appearing for the respondents by producing the original application, Exh.129 which contains two signatures of two Page 75 of 107 C/FA/765/2018 CAV JUDGMENT Sadhus. It is submitted that the trust board opposed the application, Exh.129 by filing an appropriate reply. However, the court below, while passing the impugned order, in para- 17, has erroneously observed that no contrary submissions are found on record on behalf of the Temple Board to the application, Exh.129. It is also argued that the directions contained in clause-3(f) would imply that the voters from the various constituencies such as the Sadhus, Brahmacharis and Palas can vote for the candidates in all of the three constituencies, which is contrary to the decision of the Supreme Court in the case of Ziley Singh & Ors. vs. The Registrar, cane Cooperative Societies (Cane Commissioner), Lucknow & Ors., reported in AIR 1972 SC 758 and a Division Bench decision of this Court in the case of Khanodar (Old) Milk Producers Cooperative Society Ltd. & Ors. vs. State of Gujarat & Ors., 2012 (1) GLH 245. On the other hand, so far as Exh.129 and the direction as contained in clause 3(f) is concerned, the submissions canvassed on behalf of the respondents are as under;
* Application Exh.129 was made by two Sadhus viz.
(i) Shastri Harjivandasji Guru Pujya Swami Bhanuprakashdasji and (ii) Swami Ghanshyampriyadasji Guru Pujya Swami Devnandandasji. The application is signed by the two sadhus. As such, the application was competent.
It is relevant to mention at this stage that before application Exh.129 was made by these two sadhus, an application Exh.88 was made by these two sadhus for impleadment as party respondents. Application Exh.88, a certified copy whereof is tendered in the course of hearing before this Hon'ble Court, thus make reference to two applicants. These two applicants have also signed the said application Exh.88. Application Exh.88 came to be. allowed by order dated 22.1.2013 by the Ld. District Page 76 of 107 C/FA/765/2018 CAV JUDGMENT Judge. The said order has attained finality.
* As such, the application Exh.129 was maintainable.
* On the contention that despite reply by the Temple Board, the Ld. Judge has recorded in the impugned judgment that no objection is taken by the Temple Board, it is submitted that the reliance placed on pg. 418 of the Paperbook to suggest that the Temple Board had filed reply to application Ex. 129 is misconceived in as much as the document produced at pg. 418 is not the reply to Application EX. 129. This was reply to Application EX. 88 filed by the applicants of Application Ex. 129 for impleadment. Application EX. 88 was tiled by the two applicants pursuant to the Public Notice EX. 18. The Trust Board did not file any objections to the contents or the reliefs prayed in Application Ex. 129. The Ld. Judge therefore rightly observed in para 17 of the impugned judgment that no contrary submissions to this application EX. 129."
38. I am not impressed with the arguments canvassed on behalf of the appellants as regards clause 3(f) is concerned.
39. As per Clause 19(b) of the Scheme, there are only two constituencies viz. the Gruhastha Constituency and Ascetic (Tyagi) Constituency. Four representatives are to be elected from the Gruhastha Constituency and three representatives are to be elected from the Tyagi Constituency.
40. The directions contained in Clause (F) pertain to the Tyagi Constituency. The contention that there are three more constituencies, i.e., the Sadhu Constituency, Brahmachari Constituency and Palas Constituency is factually incorrect. Tyagi Constituency has the representation from the Brahmacharis, Sadhus and Palas. These three class of persons Page 77 of 107 C/FA/765/2018 CAV JUDGMENT form one Constituency, i.e., the Tyagi Constituency.
41. The direction as contained in clause 3(F) of the operative part of the impugned order is in no manner inconsistent with clause 19 of the Scheme. A careful reading of Clause (F) would suggest that for filling up 4 seats in the Gruhastha Constituency, 4 votes can be given to the candidates in the Gruhastha Constituency. However, only 1 vote can be given to each candidate in that constituency. Similarly, in respect of the Tyagi Constituency' to fill up 3 seats, every voter would have 3 votes. However, the voter shall not be entitled to cast more than one vote to the candidates representing the Sadhus, Palas or Brahmacharis. The submission of the appellants proceeded as if there are three constituencies within the Tyagi Constituency. In my opinion, the direction contained in Clause (F) is consistent with Clause 19 (b) of the Scheme. As such, in my opinion, the direction contained in Clause (F) is reasonable and valid.
42. It is relevant to mention at this stage that the direction in terms of clause 3(F) is pursuant to the application, Exh.129, filed by the two Satsangis and the reliefs prayed therein. In para-17 of the impugned judgment, the court below has noted that the trust board did not make any contrary submissions or raised any serious objection as regards the reliefs prayed for in the application, Exh.129. In this regard, the learned counsel appearing for the appellants submitted that, in fact, various objections have been raised by filing appropriate replies, but the court below overlooked those objections. It may be true that the appellants might have raised the objections in this regard in writing, but, prima facie, it appears on plain reading Page 78 of 107 C/FA/765/2018 CAV JUDGMENT of the judgment that in the course of the oral submissions, Exh. 129 may not have been opposed hard. In this context, I may refer to one decision of the Supreme Court in the case of Mohd. Akram vs. Chief Election Officer, 2008(2) SCC 95, wherein the Supreme Court observed as under;
"....there is a presumption in law that a Judge deals with all the points which have been pressed before him. It often happens that in a petition or appeal several points are taken in the memorandum of the petition or appeal, but at the time of arguments only some of these points are pressed. Naturally a Judge will deal only with the points which are pressed before him in the arguments and it will be presumed that the appellant gave up the other points, otherwise, he would have dealt with them also. If a point is not mentioned in the judgment of a Court, the presumption is that that point was never pressed before the learned Judge and it was given up. However, that is a rebuttable presumption. In case the petitioner contends that he had pressed that point also (which has not been dealt with in the impugned judgment), it is open to him to file an application before the same learned Judge (or Bench) that the other points were in fact pressed, but were not dealt with in the impugned judgment, it is open to the concerned Court to pass appropriate orders, including an order of review. However, it is not ordinarily open to the party to file an appeal and seek to argue a point which even if taken in the petition or memorandum filed before the Court below. The party who has this grievance must approach the same Court which passed the judgment, and urge that the other points were pressed but not dealt with. "
43. Thus, in view of the above, the two decisions in the case of Ziley Singh (supra) and Khanodar (Old) Milk Producers Cooperative Society Ltd.(supra), relied upon by the appellants, are of no avail. Even otherwise they are distinguishable on facts and the ratio has no applicability in the case on hand.
Articles 25 & 26 of the Constitution:-
Page 79 of 107 C/FA/765/2018 CAV JUDGMENT44. A lot has been argued as regards Articles 25 and 26 of the Constitution of India vis-a-vis the directions contained in para-3(f) of the operative part of the impugned order. I fail to understand, in what manner, Articles 25 and 26 of the Constitution of India could be said to have been infringed with the necessary modification in the election rules. It may be said that both, Articles 25 and 26 respectively, deal with the religious freedom, but as I shall presently point out that the religious freedom as contemplated by our Constitution is not an unrestricted freedom. The religious freedom which has been safeguarded by the Constitution is the religious freedom which must be envisaged in the context of a secular State. It is not every aspect of the religion that has been safeguarded, nor has the Constitution provided that every religious activity cannot be interfered with. The term "Religion" as used in Articles 25 and 26 must be construed in its strict and etymological sense. The right under Article 25 of the Constitution is not an unrestricted right. It is a right subject to public order, morality and health, and further it permits the State to make any law regulating or restricting any economic, financial, political or other secular activity, although it may be associated with the religious practice, and there is a further right given to the State and, i.e, that the State can legislate for social welfare and reform even though in doing so it may interfere with the profession, practice and propagation of the religion by an individual. When we turn to Article 26, it does not deal with the rights of an individual or of a citizen. It deals with the right of a religious denomination or a section of a religious denomination. Therefore, what Article 26 does is to protect and safeguard the collective rights in contradistinction Page 80 of 107 C/FA/765/2018 CAV JUDGMENT to the individual rights safeguarded by Article 25, and the rights that are safeguarded are to be found in sub-clause (a),
(b), (c ) and (d).
45. The expression "religion" as used in the Constitution is not defined in the Constitution, nor in the General Clauses Act which is made applicable to the construction of the Constitution. In the very nature of things it would be extremely difficult if not impossible to define the expression "religion" or "matters of religion". Essentially religion is a matter of personal faith and belief, of personal relation of an individual with what he regards as his Maker or his Creator or the higher agency which he believes regulates the existence of sentient beings and the forces of the Universe. Again, in view of the fact that there is not one religion but there are numerous religions and different persons residing within this country and within this State profess different religious faiths which seek to identify religion with what may in substance be mere facets of religion, it would be difficult to devise a definition which, would be regarded as applicable to all religions or matters of religion.
46. In matters of management of the property of any institution even if it be a religious institution, the right of management or administration is by clause (d) of Article 26 subject to the law of the land. There is no right conferred upon the religious denominations to administer their properties otherwise than in accordance with law. Therefore, in the administration of property belonging to any religious denomination any attempt to exercise the right of administration of property otherwise than in accordance with Page 81 of 107 C/FA/765/2018 CAV JUDGMENT the law of the land cannot be protected by Article 26 of the Constitution.
47. The first question which, therefore, arises for my consideration is as to which is the religious affair or religious practice with which the modified rules interfere with? Does the modified rule interfere with the acquisition and owning of the movable or immovable property by the religious denomination? . Whether the modified rules are, in any manner, in conflict with Article 26(d) of the Constitution of India?.
48. Articles 25 and 26 of the Constitution have been the subject matter of quite a few landmark decisions of the Supreme Court. The first of these decisions is in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, (1954) Supreme Court Reports 1005. In that case, the Supreme Court was considering the constitutional validity of several provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951 (hereinafter referred to as 'the Madras Act'). The first principle which has been laid down is that, in the interest of the public, reasonable restrictions can always be placed upon the rights of a person who is in charge of a public institution such as a Mathadhipati but that these restrictions should not be such as would bring him down to the level of a servant under a State department. The reasonableness of the restrictions has to be judged from this standpoint. These observations were made in the context of the rights of the Mathadhipati of Sri Shirur Mutt under Article Page 82 of 107 C/FA/765/2018 CAV JUDGMENT 19(1)(f) of the Constitution. Dealing with Article 25, Mr. Justice Mukherjee, speaking for the Court, has observed as under:
"We now come to Article 25 which, as its language indicates, secures to every person, subject to public order, health and morality, a freedom not only to entertain such religious belief, as may be approved of by his judgment and conscience, but also to exhibit his belief in such outward acts as he thinks proper and to propagate or disseminate his ideas for the edification of others. A question is raised as to whether the word "persons" here means individuals only or includes corporate bodies as well. The question, in our opinion, is not at all relevant for our present purpose. A Mathadhipati is certainly not a corporate body; he is the head of a spiritual fraternity and by virtue of his office has to perform the duties of a religious teacher. It is his duty to practice and propagate the religious tenets, of which he is an adherent and if any provision of law prevents him from propagating his doctrines, that would certainly affect the religious freedom which is guaranteed to every person under Article 25. Institutions as such cannot practice or propagate religion; it can be done only by individual persons and whether these persons propagate their personal views or the tenets for which the institution stands is really immaterial for purposes of Article 25. It is the propagation of belief that is protected, no matter whether the propagation takes place in a church or monastery, or in a temple or parlour meeting."
49. Dealing with Article 26(b), Mr. Justice Mukherjee has observed as under:
"The other thing that remains to be considered in regard to Article 26 is, what is the scope of Clause (b) of the article which speaks of management" of its own affairs in matters of religion?"
The language undoubtedly suggests that-there could be other affairs of a religious denomination or a section thereof which are not matters of religion and to which the Page 83 of 107 C/FA/765/2018 CAV JUDGMENT guarantee given by this clause would not apply. The question is, where Is the line to be drawn between what are matters of religion and what are not?
It will be seen that besides the right to manage its own affairs in matters of religion, which is given by Clause (b), the next two clauses of Article 26 guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law. The administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in matters of religion. The latter is a fundamental right which no legislature can take away, whereas the former can be regulated by laws which the legislature can validly impose. It is clear, therefore, that questions merely relating to administration of properties belonging to a religious group or institution are not matters of religion to which Clause (b) of the article applies. What then are matters of religion? The word "religion" has not been defined in the Constitution and it is a term which is hardly susceptible of any rigid definition. In an American case, it has been said "that the term 'religion' has reference to one's views of his relation to his Creator and to the obligations they impose of reverence for His Being and character and of obedience to His will. It is often confounded with cultus of form or worship of a particular sect, but is distinguishable from the latter. "We do not think that the above definition can be regarded as either precise or adequate. Articles 25 and 26 of our Constitution are based for the most part upon Article 44(2) of the Constitution of Eire and we have great doubt whether a definition of "religion" as given above could have been in the minds of our Constitution- makers when they framed the Constitution. Religion is certainly a matter of faith with individuals or communities and it is not necessarily atheistic. There are well-known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine of belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as Page 84 of 107 C/FA/765/2018 CAV JUDGMENT integral parts of religion, and these forms and observances might extend even to matters of food and dress.
The guarantee under our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression "practice of religion" in Article
25. Latham, C.J. of the High Court of Australia while dealing with the provision of Section 116 of the Australian Constitution which inter alia forbids the Commonwealth to prohibit the "free exercise of any religion" made the following weighty observations:
"It is sometimes suggested in discussions on the subject of freedom of religion that, though the civil Government should not interfere with religious opinions, it nevertheless may deal as it pleases with any acts which are done in pursuance of religious belief without infringing the principle of freedom of religion. It appears to me to be difficult to maintain this distinction as relevant to the interpretation of Section 116. The section refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion."
"These observations apply fully to the protection of religion as guaranteed by the Indian Constitution. Restriction by the State upon free exercise of religion are permitted both under Articles 25 and 26 on grounds of public order, morality and health. Clause (2)(a) of Article 25 reserves the right of the State to regulate or restrict any economic, financial, political and other secular activities which may be associated with religious practice and there is a further right given to the State by sub- clause (b) under which the State can legislate for social welfare and reform even though by so doing it might interfere with religious practices. The learned Attorney- General lays stress upon Clause (2)(a) of the article and his contention is that all secular activities, which may be associated with religion but do not really constitute an essential part of it, are amenable to State regulation.Page 85 of 107 C/FA/765/2018 CAV JUDGMENT
"The contention formulated in such broad terms cannot, we think, be supported. In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, - all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of Article 26(b). What Article 25(2)(a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to public order, health and morality, but regulation of activities which are economic, commercial or political in their character though they are associated with religious practices."
Thereafter, Mr. Justice Mukherjee has discussed a few American and Australian cases bearing on the regulation of activities which are economic, commercial or political in character but which are associated with religious practices and then observed as under.
"As we have already indicated, freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well as subject to the restrictions which the Constitution itself has laid down. Under Article 26(b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters, of course, the scale of expenses to be incurred in connection with these religious observances would be a matter of administration of property belonging to the religious Page 86 of 107 C/FA/765/2018 CAV JUDGMENT denomination and can be controlled by secular authorities in accordance with any law laid down by a competent legislature; for it could not be the injunction of any religion to destroy the institution and its endowments by incurring wasteful expenditure on rites and ceremonies. It should be noticed, however, that under Article 26(d), it is the fundamental right of a religious denomination or its representative to administer its properties in accordance with law; and the law, therefore, must leave the right of administration to the religious denomination itself subject to such restrictions and regulations as it might choose to impose. A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under Clause (d) of Article 26."
50. The second decision, on which, strong reliance has been placed on behalf of the appellants is in Ratilal Panachand Gandhi v. The State of Bombay and Ors., (1954) S.C.R. 1055. In that case, the Supreme Court was considering the constitutional validity of the very Act with which we are concerned in this petition. The impugned Section 41A was, however, not there at that time. Mr. Justice Mukherjee, speaking for the Court, has laid down the scope and ambit of Articles 25 and 26 in the following terms.
"Article 25 of the Constitution guarantees to every person and not merely to the citizens of India the freedom of conscience and the right freely to profess, practice and propagate religion. This is subject, in every case, to public order, health and morality. Further exceptions are engrafted upon this right by Clause (2) of the article. Sub- clause (a) of Clause (2) saves the power of the State to make laws regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; and sub-clause (b) reserves the State's power to make laws providing for social reform and social welfare even though they might interfere with religious practices. Thus, subject to the restrictions which this article imposes, every person has Page 87 of 107 C/FA/765/2018 CAV JUDGMENT a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others. It is immaterial also whether the propagation is made by a person in his individual capacity or on behalf of any church or institution. The free exercise of religion by which is meant the performance of outward acts in pursuance of religious belief, is, as stated above, subject to State regulation imposed to secure order, public health and morals of the people. What sub-clause (a) of Clause (2) of Article 25 contemplates is not State regulation of the religious practices as such which are protected unless they run counter to public health or morality but of activities which are really oaf an economic, commercial or political character though they are associated with religious practices.
So far as Article 26 is concerned, it deals with a particular aspect of the subject of religious freedom. Under this article, any religious denomination or a section of it has the guaranteed right to establish and maintain institutions for religious and charitable purposes and to manage in its own way all affairs in matters of religion. Rights are also given to such denomination or a section of it to acquire and own movable and immovable properties and to administer such properties in accordance with law. The language of the two Clauses (b) and (d) of Article 26 would at once bring out the difference between the two. In regard to affairs in matters of religion, the right of management given to a religious body is a guaranteed fundamental right which no legislation can take away. On the other hand, as regards administration of property which a religious denomination is entitled to own and acquire, it has undoubtedly the right to administer such properly but only in accordance with law. This means that the State can regulate the administration of trust properties by means of laws validly enacted; but here again it should be remembered that under Article 26(d), it is the religious denomination itself which has been given the right to administer its property in accordance with any law which the State may validly impose. A law, which lakes away the right of administration altogether from Page 88 of 107 C/FA/765/2018 CAV JUDGMENT the religious denomination and vests it in any other or secular authority, would amount to violation of the right which is guaranteed by Article 26(d) of the Constitution."
51. Discussing the question of religious practices and religious beliefs, it has been further observed as under:
"Religious practices or performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in particular doctrines. Thus if the tenets of the Jain or the Parsi religion lay down that certain rites and ceremonies are to be performed at certain times and in a particular manner, it cannot that said that these are secular activities partaking of commercial or economic character simply because They involve expenditure of money or employment of priests or the use of marketable commodities. No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate. Of course, the scale of expenses to be incurred in connection with these religious observances may be and is a matter of administration of property belonging to religious institutions; and if the expenses on these heads are likely to deplete the endowed properties or affect the stability of the institution, proper control can certainly be exercised by State agencies as the law provides. We may refer in this connection to the observation of Davar, J. in the case of Jamshedji v. Soonabai, and although they were made in a case where the question was whether the bequest of property by a Parsi testator for the purpose of perpetual celebration of ceremonies like Muktad Baj, Vyezashni, etc., which are sanctioned by the Zoroastrian religion were valid charitable gifts, the observations, we think, are quite appropriate for our present purpose.
"If this is the belief of the community" thus observed the learned Judge, "and it is proved undoubtedly to be the belief of the Zoroastrian community, - a secular Judge is bound to accept that belief it is not for him to sit in judgment on that belief, he has no right to interfere with the conscience of a donor who makes a gift in favour of what be believes to be the advancement of his religion Page 89 of 107 C/FA/765/2018 CAV JUDGMENT and the welfare of his community or mankind. "These observations do, in our opinion, afford an indication of the measure of protection that is given by Article 26(b) of our Constitution."
52. The next decision is in Shri Venkataramana Devaru and Others v. State of Mysore and Others, A.I.R. (1958) Supreme Court 255. The Supreme Court, in that decision, was considering the constitutional validity of the Madras Temple Entry Authorization Act, 1947 in light of the provisions of Articles 25 and 26. Therein after having reaffirmed its earlier decision in the case of The Commissioner, Hindu Religious Endowments, Madras (supra), it has observed that Article 26(b) embraces "not merely matters of doctrine and belief pertaining to the religion but also the practice of it, or to put it in terms of Hindu theology, not merely its Gnana but also its Bhakti and Karma Kandas". After having quoted a passage from the judgment of Mr. Justice Mukherjee in the case of The Commissioner, Hindu Religious Endowments, Madras (supra), it has further observed that it is well-settled that matters of religion in Article 26(b) include even practices which are regarded by the community as part of its religion. Proceeding further, Mr. Justice Venkatarama Iyar has explained the scope of Articles 26(b) and 25 in the following terms:
"It is next contended that while the right conferred under Art. 26(b) is subject to any law which may be passed with reference thereto, there is no such restriction on the right conferred by Art. 26(b). It is accordingly argued that any law which infringes the right under Art. 26(b) is invalid, and that S 3 of Act V of 1947, must accordingly be held to have become void. Reliance is placed on the observations of this Court in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra) at page 1023 Page 90 of 107 C/FA/765/2018 CAV JUDGMENT (of SCR) : (at pp. 289-290 of AIR), in support of this position. It is undoubtedly true that the right conferred under Art. 26(b) cannot be abridged by any legislation, but the validity of S. 3 of Act V of 1947, does not depend on its own force but on Art. 25(2)(b) of the Constitution. The very Constitution which is claimed to have rendered S. 3 of the Madras Act void is being repugnant to Art. 26(b) has, in Art. 25(2)(b), invested it with validity, and, therefore, the appellants can succeed only by establishing that Art. 25(2)(b) itself is inoperative as against Art. 25 deals with the rights of individuals, Art. 26 protects the rights of denominations, and that as what the appellants claim is the right of the Gowda Saraswath Brahmins to exclude those who do not belong to that denomination, that would remain unaffected by Art. 25(2)
(b). This contention ignores the true nature of the right conferred by Art. 25(2Kb). That is a right conferred on "all classes and sections of Hindus" to enter into a public temple, and on the unqualified terms of that Article, that right must be available, whether it is sought to be exercised against an individual under Art. 25(1) or against a denomination under Art. 26(b). The fact is that though Art. 25(1) deals with rights of individuals, Art.
25(2) is much wider in its contents and has reference to the right of communities, and controls both Art. 25(1) and Art. 26(b).
"(29) The result then is that there are two provisions of equal authority, neither of them being subject to the other. The question is how the apparent conflict between them is to be resolved. The rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect could be given to both. This is what is known as the rule of harmonious construction. Applying this rule, if the contention of the appellants is to be accepted, then Art.
25(2)(b) will become wholly nugatory in its application to denominational temples, though, as stated above, the language of that Article includes them. On the other hand, if the contention of the respondents is accepted, then full effect can be given to Art. 26(b) in all matters of religion, subject only to this that as regards one aspect of them, entry into a temple for worship, the rights declared under Art. 25(2) (b) will prevail. While, in the former case, Art. 25(2)(b) will be put wholly out of operation, in the latter, effect can be given to both that provision and Art.
Page 91 of 107 C/FA/765/2018 CAV JUDGMENT26(b). We must accordingly hold that Art. 26(b) must be read subject to Art. 25(2)(b)."
53.. The next decision on the subject is in Durgah Committee, Ajmer and Another v.Syed Hussain Ali and Others, A.I.R. (1961) Supreme Court 1402. The Supreme Court, in that case, was considering the constitutional validity of Durgah Khawaja Saheb Act, 1955. The challenge was made on two grounds. Firstly, - it was contended that certain provisions of the impugned Act were inconsistent with Article 26(b), (c), (d) of the Constitution. Secondly, some other provisions were challenged as ultra vires Article 19(1)(f) and
(g). Mr. Justice Gajendragadkar (as he then was), while dealing with the scope and ambit of Article 26, has observed as under:
"We will first take the argument about the infringement of the fundamental right to freedom of religion. Articles 25 and 26 together safeguard the citizen's right of freedom of religion. Under Art. 25(1), subject to public order, morality and health and to other provisions of Part III, all persons are equally entitled to freedom of conscience and their right freely to profess, practice and propagate religion. This freedom guarantees to every citizen not only the right to entertain such religious beliefs as may appeal to his conscience but also affords him the right to exhibit his belief in his conduct by such outward acts as may appear to him proper in order to spread his ideas for the benefit of others. Article 26 provides that subject to public order, morality and health every religious denomination or any section thereof shall have the right-
(a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable property; and (d) to administer such property in accordance with law.
The four clauses of this article constitute the fundamental freedom guaranteed to every religious denomination or Page 92 of 107 C/FA/765/2018 CAV JUDGMENT any section thereof to manage its own affairs. It is entitled to establish institutions for religious purposes, it is entitled to manage its own affairs in the matters of religion, it is entitled to own and acquire movable and immovable property and to administer such property in accordance with law. What the expression "religious denomination" means has been considered by this Court in Commr., Hindu Religious Endowments, Madras v. Lakshmindra Thirth Swamiar, (AIR 1954 SC 282). Mukherjea, J., as he then was, who spoke for the Court, has quoted with approval the dictionary meaning of the word "denomination" which says that a "denomination" is "a collection of individuals classed together under the same name, a religious sect or body having a common faith and organisation and designated by a distinctive name." The learned Judge has added that Art. 26 contemplates not merely a religious denomination but also a section thereof. Dealing with the questions as to what are the matters of religion, the learned Judge observed that the word "religion" has not been defined in the Constitution, and it is a term which is hardly susceptible of any rigid definition. Religion, according to him, is a matter of faith with individuals or communities and it is not necessarily theistic. It undoubtedly has its basis in a system of pleas or doctrines which are regarded by those who profess that religion as conducive to their spiritual well-being, but it is not correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress (pp. 1032, 1024) (of SCR) : (p. 290 of AIR). Dealing with the same topic, though in another context, in Venkataramana Devaru v. State of Mysore, 1958 SCR 895 : (AIR 1958 SC 255), Venkatarama Aiyer, J. spoke for the Court in the same vein and observed that it was settled that matters of religion in Art. 26(b) include even practices which are regarded by the community as part of its religion and in support of this statement the learned Judge referred to the observations of Mukherjea, J., which we have already cited. Whilst we are dealing with this point it may not be out of place incidentally to strike a note of caution and observe that in order that the practices in question should be treated as a part of Page 93 of 107 C/FA/765/2018 CAV JUDGMENT religion they must be regarded by the said religion as its essential and integral part; otherwise ever: purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Art. 26. Similarly even practices though religious may have sprung from merely superstitious beliefs and may in that sense is extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Art. 26 may have to be carefully scrutinized; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other."
54. In that decision, the Supreme Court has not only reaffirmed its earlier decisions on the subject - referred to in the foregoing paragraphs - but it has gone a step further and limited the protection of Article 26 only to such religious practices "as are an essential and an integral part of it and no other". In all its earlier decisions, the Supreme Court had not gone beyond accepting the view of Mr. Justice Davar expressed in Jamshedji v. Soonabai , ILR (33) Bombay 122 who stated it in the following terms:
"If this is the belief of the community and it is proved undoubtedly to be the belief of the Zoroastrian community - a secular Judge is bound to accept that belief - it is not for him to sit in judgment on that belief, he has no right to interfere with the conscience of a donor who makes a gift in favour of what he believes to be the advancement of his religion or the welfare of his community or mankind."
55. Ordinarily, once a belief is proved to be a religious belief of a community or a religious denomination it is sufficient to attract the protection of Article 26 but the decision of the Page 94 of 107 C/FA/765/2018 CAV JUDGMENT Supreme Court in the case of Durgah Committee (supra) goes a step beyond and lays down that only those religious practices which are an essential and integral part of a religion and which have not sprung up from merely superstitious beliefs and which are not extraneous and unessential accretions to it receive the protection of Article 26.
56. The next decision is in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, A.I.R. (1962) Supreme Court 853. In that case the Supreme Court was considering the constitutional validity of the Bombay Prevention of Excommunication Act, 1949 in the light of the provisions of Articles 25 and 26 of the Constitution. The majority judgment, in paragraph 34 of the report, approves the principles laid down in its earlier decisions by the Supreme Court. In his separate but concurring judgment, Mr. Justice Rajgopala Ayyangar explains the scope and ambit of clauses
(b) and (d) of Article 26 in the following terms in the context of the facts of that case.
"Article 26 confers on every religious denomination two rights which are relevant in the present context, by cl. (b)
- "to manage its own affairs in matters of religion" - and by the last clause, cl. (d) - "to administer such property"
which the denomination owns or has acquired [vide cl.
(c)] "in accordance with law". In considering the scope of Art. 36 one has to bear in mind two basic postulates: First that a religious denomination is possessed of property which is dedicated for definite uses and which under Art. 36(d) the religious denomination has the right to administer. From this it would follow that subject to any law grounded on public order, morality or health the limitation with which Art. 26 opens, the denomination has a right to have the property used for the purposes for which it was dedicated. So far as the present case is concerned, the management of the property and the Page 95 of 107 C/FA/765/2018 CAV JUDGMENT right and the duty to ensure the proper application of that property is admittedly vested in the Dai as the religious head of the denomination. Article 26(d) speaks of the administration of the property being in accordance with law and the learned Attorney- General suggested that a valid law could be enacted which would permit the diversion of those fund to purposes which the legislature in its wisdom thought it fit to appropriate. I feel wholly unable to accept this argument. A law which provides for or permits the diversion of the property for the use of persons who have been excluded from the denomination would not be "a law" contemplated by Art. 26(d). Leaving aside for the moment the right of excommunicated persons to the enjoyment of property dedicated for the use of a denomination, let me take the case of a person who has renounced that religion, and in passing it might be observed that even in cases of an apostate according to the principles governing the Dawoodi Bohra denomination there is no ipso facto loss of rights, only apostasy is a ground for excommunication which however could take place without service of notice or an enquiry. It could not be contended that an apostate would be entitled to the beneficial use of property, dedicated to the Dawoodi Bohra community be it the mosque where worship goes on or other types of property like consecrated burial grounds, etc. It would be obvious that if the Dai permitted the use of the property by an apostate without excommunicating him he would be committing a dereliction of his duty as the supreme head of the religion in fact an act of sacrilege besides being guilty of a breach of trust. I consider that it hardly needs any argument to show that if a law permitted or enjoined the use of the property belonging to the denomination by an apostate it would be a wholly unauthorised diversion which would be a violation of Art. 26(d) and also of Art. 26(c), not to speak of Art. 25(1). The other postulate is the position of the Dai as the head of the religious denomination and as the medium through which spiritual grace is brought to the community and that this is the central part of the religion as well as one of the principal articles of that faith. Any denial of this position is virtually tantamount to a denial of the very foundation of the faith of the religious denomination."
57. A similar question arose in Tilkayat Shri Govindlalji Page 96 of 107 C/FA/765/2018 CAV JUDGMENT Maharaj etc. v. State of Rajasthan and Others, A.I.R. (1963) Supreme Court 1638 - where the Supreme Court was considering the constitutional validity of the Rajasthan Nathdhwara Temple Act, 1959. The constitutional challenge was, inter alia, based upon Articles 25 and 26. Mr. Justice Gajendragadkar (as he then was) who delivered the judgment of the Court, after having analysed these two Articles and referred to the two earlier decisions of the Supreme Court in the cases of the Commissioner, Hindu Religious Endowments, Madras (supra) and Sri Venkatraman Devaru and Others (supra) has observed as under:
"It would thus be clear that religious practice to which Art. 25(1) refers and affairs in matters of religion to which Art. 26(b) refers, include practices which are an integral part of the religion itself and the protection guaranteed by Art. 25(1) and Art. 26(b) extends to such practices.
"(58) In deciding the question as to whether a given religious practice is an internal part of the religion or not, the test always would be whether it is regarded as such by the community following the religion or not. This formula may in some cases present difficulties in its operation. Take the case of a practice in relation to food or dress. If in a given proceeding, one section of the community claims that while performing certain rites white dress is an integral part of the religion itself, whereas another section contends that yellow dress and not the white dress is the essential part of the religion, how is the Court going to decide the question? Similar disputes may arise in regard to food. In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices the Court may not be able to resolve the dispute by a blind application of the formula that the community decides which practice is an integral part of its religion, because the community may speak with more than one voice and the formula would, therefore, break down. This question will always have to be decided by the Court and in doing so, the Court may have to enquire whether the practice in Page 97 of 107 C/FA/765/2018 CAV JUDGMENT question is religious in character and if it is, whether it can be regarded as an integral or essential part of the religion, and the finding of the Court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of its religion. It is in the light of this possible complication which may arise in some cases that this Court struck a note of caution in the case of Durgah Committee Ajmer v.
Syed Husain Ali, 1962-1 SCR 383 at p. 411 : AIR 1961 SC 1402 at p. 1415) and observed that in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Art. 26.
"(59) In this connection, it cannot be ignored that what is protected under Arts. 25(1) and 26(b) respectively are the religious practices and the right to manage affairs in matters of religion. If the practice in question is purely secular or the affair which is controlled by the statute is essentially and absolutely secular in character, it cannot be urged that Art. 25(1) or Art. 26(b) has been contravened. The protection is given to the practice of religion and to the denomination's right to manage its own affairs in matters of religion. Therefore, whenever a claim is made on behalf of an individual citizen that the impugned statute contravenes his fundamental right to practice religion or a claim is made on behalf of the denomination that the fundamental right guaranteed to it to manage its own affairs in matters of religion is contravened, it is necessary to consider whether the practice in question is religious or the affairs in respect of which the right of management it alleged to have been contravened are affairs in matters of religion. If the practice is a religious practice or the affairs are the affairs in matter of religion, then, of course, the right guaranteed by Art. 25(1) and Art. 26(b) cannot be contravened.
"(60) It is true that the decision of the question as to whether a certain practice is a religious practice or not, as well as the question as to whether an affair in question is an affair in matters of religion or not, may present difficulties because sometimes practices, religious and Page 98 of 107 C/FA/765/2018 CAV JUDGMENT secular, are inextricably mixed up. This more particularly so in regard to Hindu religion because as is well known, under the provisions of ancient Smritis, all human actions from birth to death and most of the individual actions from day to day are regarded as religious in character. As an illustration, we may refer to the fact that the Smritis regard marriage as a sacrament and not a contract.
Though the task of disengaging the secular from the religious may not be easy, it must nevertheless be attempted in dealing with the claims for protection under Arts. 25(1) and 26(b). If the practice which is protected under the former is a religious practice, and if the right which is protected under the latter is the right to manage affairs in matters of religion, it is necessary that in judging about the merits of the claim made in that behalf the Court must be satisfied that the practice is religious and the affairs is in regard to a matter of religion. In dealing with this problem under Arts. 25(1) and 26(b), Latham C.J's. observation in Adelaide Co. of Jehovah's Witnesses v. Commonwealth, 1943-67 Com-WLR 116 at p. 123 that-
"what is religion to one is superstition to another", on which Mr. Pathak relies, is of no relevance. If an obviously secular matter is claimed to be matter of religion, or if an obviously secular practice is alleged to be a religious practice, the Court would be justified in rejecting the claim because the protection guaranteed to secular practices and affairs in regard to denominational matters which are not matters of religion, and so, a claim made by a citizen that a purely secular matter amounts to a religious practice, or a similar claim made on behalf of the denomination that a purely secular matter is an affair in matters of religion, may have to be rejected on the ground that it is based on irrational considerations and cannot attract the provisions of Art. 25(1) or Art. 26(b). This aspect of the matter must be borne in mind in dealing with true scope and effect of Art. 25(1) and Art. 26(b)."
58. The proposition laid down in the case of the Durgah Committee (supra) that what Article 26(b) protects are those religious practices which are an essential and integral part of the religious beliefs of a denomination has been reiterated in Page 99 of 107 C/FA/765/2018 CAV JUDGMENT this decision. The second proposition which has been laid down is that when the protection under Article 26(b) is sought by a denomination, the task of disengaging the secular practices from the religious practices must be attempted even though such a task may present difficulties. In paragraph 61 of the report it has been further observed as follows so far as the right to manage the properties of the Nathdhwara temple is concerned.
"The right to manage the properties of the temple is purely secular matter and it cannot, in our opinion, be regarded as a religious practice as far as to fall under Article 25(1) or as amounting to affairs in matters of religion ..... A distinction must always be made between a practice which is religious and a practice in regard to a matter which is purely secular and has no element of religion associated with it."
59. In that decision, the two different fields in which clauses
(b) and (d) of Article 26 operate, have been stated thus:
"Incidentally, this clause will help to determine the scope and effect of the provisions of Art. 26(b). Administration of the denomination's property which is the subject- matter of this clause is obviously outside the scope of Art. 26(b). Matters relating to the administration of the denomination's property fall to be governed by Art. 26(b) and cannot attract the provisions of Art. 26(b). Article 26(b) relates to affairs in matters of religion such as the performance of the religious rites or ceremonies, or the observance of religious festivals and the like; it does not refer to the administration, of the property at all. Article 26(d) therefore, justifies the enactment of a law to regulate the administration of the denomination's property and that is precisely what the Act has purported to do in the present case. If the clause "affairs in matters of religion" were to include affairs in regard to all matters, whether religious or not, the provision under Art. 26(d) for legislative regulation of the administration of the denomination's property would be Page 100 of 107 C/FA/765/2018 CAV JUDGMENT rendered illusory."
60.. What is discernible from all the aforesaid decisions of the Supreme Court, referred to above, is that the four clauses of Article 26 are not over lapping. They distinctly dissect the four aspects of freedom to manage the religious affairs, guaranteed to the religious denomination. Therefore, when a particular "affair" falls under one of the four clauses, it cannot be outstretched to fall under another. (see Syedna Mohamed Burhanuddin vs. Charity Commissioner, 1992 GLH (1) 331)
61. I fail to understand, in what manner, the right of administration could be said to have been taken away from the trust board, or to put it in other words, from the religious denomination. In my view, the directions which have been issued by the court below do not, in any manner, interfere with the rights of administration. All the directions are in the line of providing fair and transparent election. The modified election rules or rather the scheme do not, in any manner, aim at regulating or controlling the offerings made by the visitors. It does not aim at regulating or controlling the inflow of the visitors. It also does not, in any manner, whatsoever, interfere with the acquisition of the property through the instrumentality of the trust. As the modification does not provide, in any manner, whatsoever for the regulation of acquisition of property by a religious denomination and since it does not provide for regulating its ownership, clause (c) of Article 26 is not attracted much less violated only if a denomination is deprived of the administration of the property altogether. The impugned judgment and order passed by the District Court merely evolves a fair and transparent system of election. Having regard to the serious nature of the allegations as Page 101 of 107 C/FA/765/2018 CAV JUDGMENT regards the fabrication and manipulation in the voters list, substantiated by evidence on record, if the court below has asked the Election Officer to prepare and finalize the voters list then, in my opinion, the same is not violative of Article 26 of the Constitution.
62. The only part of the judgment and order, or rather the directions, I propose to disturb or modify, is as regards appointing the District Collector, Botad as the Election Officer. I am of the view that the ends of justice would be met and it would be in the fitness of things if a retired Judicial Officer of the rank of the District Judge or a retired City Civil Judge is appointed as the Election Officer. The concept of "free and fair elections" is one of the pillars of democracy. The concept of free and fair elections, as a necessary concomitant and attribute of democracy, which is a basic feature, includes an independent, impartial and honest election officer for the conduct of the election. Maintaining the purity and transparency of any election process is a very challenging job and involves a lot of inherent complexities. For strengthening the existing system and removing the difficulties arising in ensuring free and fair elections, the appointment of a retired judicial officer of the rank of the District Judge or a retired City Civil Judge will not only instill confidence in the mind of the voters and other participants, but will also reduce the scope of levelling any allegations of bias or manipulation or any malpractice or favoritism in the election process. The trust board shall appoint a retired Judicial Officer of the rank of the District Judge or a retired City Civil Judge, who is, in no way, connected with the religious sect or any particular person Page 102 of 107 C/FA/765/2018 CAV JUDGMENT directly or indirectly involved in the affairs of the trust. Such election officer shall be in the sole charge of the conduct of the election. In the course of the conduct of the election, the members of the trust board or any other office bearer shall not associate themselves in the conduct of the election save and except where the election officer requires their attendance or assistance in someway or the other. In this way, the purity of election will be maintained and the majority of the grievance raised by the respondents as regards the manipulations at the election wold no longer survive. I also deem it fit and appropriate to grant liberty to the election officer to apply to the District Court, Bhavnagar for any direction, if such election officer finds that it is necessary for him to discharge his duties by maintaining the sanctity of the election process so as to properly discharge the confidence of the voters upon him for conducting the election in accordance with the election rules. This would provide sufficient protection to the election officer in discharge of his duties without any interference by any one, may be of any of the group, either in power or rival to the group in power and the same would also rule out any interference by any persons to the election officer in proper discharge of his duties.
63. My final conclusions may be summarized as under;
(I) The Civil Misc. Application No.140 of 2011 filed by the original applicants before the District Court, Bhavnagar, seeking appropriate directions and modifications in the election rules, invoking clause-48 of the scheme, was maintainable in law. It was not necessary for the original applicants to file a suit under section 50 of the Bombay Public Page 103 of 107 C/FA/765/2018 CAV JUDGMENT Trusts Act, 1950.
(ii) Section 50 of the Act has no application in the present case.
(iii) The modification in the election rules or any direction with regard to the election can be read into clause 48 of the scheme. The rules are framed under the scheme. They are a part of the scheme. Clause 46 of the scheme is just an enabling power vested with the trust board. However, clause 46 of the scheme will not act as an embargo for the purpose of invoking clause 48 of the scheme as regards modification in the election rules.
(iv) The impugned directions issued by the District Court are, in no manner, violative of Articles 25 and 26 of the Constitution of India.
(v) The directions issued by the court, in my view, are just, proper and tenable in law except one and that is with regard to the election officer. Instead of the District Collector, Botad, the trust board shall appoint a retired Judicial Officer of the rank of the District Judge or a retired City Civil Judge as the election officer.
(vi) The impugned order passed by the court below could be termed as a decree and is an appealable order. In such circumstances, the appeals are maintainable in law.
64. In the result, the First Appeals Nos.765 of 2018, 771 of 2018, 773 of 2018 and 780 of 2018 are partly allowed. The Page 104 of 107 C/FA/765/2018 CAV JUDGMENT direction No.3(A), appointing the District Collector, Botad as the Election Officer, and to be in sole charge of the conduct of the election, is hereby quashed and set aside. A retired Judicial Officer of the rank of the District Judge or a retired City Civil Judge shall be appointed by the trust board as the Election Officer and he shall be in the sole charge of the conduct of the election. The Election Officer, so appointed, shall be assisted by the Assistant Charity Commissioner, Botad. Rest of the directions are hereby affirmed and shall be complied with scrupulously.
First Appeal No.807 of 2018
65. This first appeal under section 96 of the CPC, 1908 read with section 76 of the Bombay Public Trusts Act, 1950 is at the instance of the trustees of the Gopinathji Dev Mandir Trust and is directed against the order passed by the Addl. District Judge, Bhavnagar dated 17th February, 2018 in the Civil Misc. Application No.116 of 2011. The Civil Misc. Application No.116 of 2011 came to be filed by the appellants herein before the District Court under clause-48 of the Election Scheme of Shri Gopinathji Dev Mandir Trust for modification in Rule 12(3)(A) (B) of the Election Scheme enacted by virtue of an order passed in the CMA No.57 of 1993 dated 9th March, 1994. It was prayed before the District Court that having regard to the situation prevailing as on date, and for the convenience of the administration of the trust, the Rules 12(3)(A) and (B) are required to be modified by enhancing the amount of the Dharmada (Donation). It was prayed that (A) Rule-12(3)(A) be amended in the manner that where there is Rs.25/- every year for a continuous period of 5 years, there should be Page 105 of 107 C/FA/765/2018 CAV JUDGMENT Rs.250/- every year for a continuous period of 5 years and Rule-12(3)(B) be amended to the effect that where there is Rs.50/- every year for a continuous period of 5 years, there should be Rs.300/- every year for a continuous period of 5 years"; and (B) to add (BB) after Rule-12(3)(A) & (B) in the manner that "at the time of election, the voters have to carry their identity card with them, as per the voters list prepared by Gruhastha section, and without that, no one shall be entitled for voting and (C ) also to pass an order to give the implementing effect of such amended scheme from 27.8.11 i.e. Kartak Sud of Samvat 2068.
66. The court below partly allowed the CMA No.116 of 2011. The order passed by the court below in the CMA No.116 of 2011 reads as under;
"In CMA No.116/11, in regard to increase in the amount of donation the said amount stands modified to the extent of Rs.125/- from Rs.25/- and Rs.150/- from Rs.50/- which shall be applicable for the next election to be conducted after 5 years of the present election, as per the election rules. And in the present election the amount of Dharmada (Donation) of Rs.25/- and 50/- shall be considered for being voter and candidate respectively, as per the existing rules."
67. Mr. Mangukiya, the learned counsel appearing for the appellants submitted that the court below should have enhanced the amount of Rs.125/- towards the Dharmada to Rs.250/-.
68. So far as this appeal is concerned, there is no serious Page 106 of 107 C/FA/765/2018 CAV JUDGMENT contest or challenge to the same from the other side. I am also of the view, having regard to the present times, that the amount should have been enhanced from Rs.125/- to Rs.250/-.
69. In the result, this first appeal is allowed to the extent of enhancement of the amount towards the Dharmada, i.e,. from Rs.125/- to Rs.250/-.
70. At this stage, it would not be out of place to state that the First Appeal No.807 of 2018 arises from the order passed by the court below in the Civil Misc. Application No.116 of 2011. This application was also filed for the necessary amendment in the Rules, i.e, Rule 12(3)(A)(B) of the Election Scheme. According to the appellants, the Application No.140 of 2011 could not be said to have been maintainable because the same was for modification of the election rules and rules should not be read into in clause-48 of the scheme. If that be so, then how the Application No.116 of 2011 could be said to be maintainable because the same was also for modification of Rule 12(3)(A)(B) of the election scheme. I have not been able to understand why such an argument was canvassed on behalf of the appellants.
71. In view of the order passed in the main matters, the connected applications do not survive and are disposed of accordingly.
(J.B.PARDIWALA, J) Vahid Page 107 of 107