Gujarat High Court
Ahmed vs Chairty on 8 April, 2010
Author: K.A.Puj
Bench: K.A.Puj
Gujarat High Court Case Information System
Print
SCA/2139/2000 6/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2139 of 2000
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
AHMED
SAID AZAM HATIYA
Versus
CHAIRTY
COMMISSIONER
=========================================
Appearance
:
MR MI MERCHANT for
Petitioner
MR RASHESH RINDANI AGP for
Respondent
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CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 08/04/2010
ORAL
JUDGMENT
[1] The petitioner has filed this petition under Article 226 of the Constitution of India praying for quashing and setting aside the impugned judgment and order dated 29th April, 1998 passed by the District Court, Surat in Misc. Civil (Trust) Application No.48 of 1997 at Annexure - A to this petition. By way of an interim relief, the petitioner has prayed for direction appointing Mr.Mahmud Mohemmed Said and Mr.Abu Bakar Ashraf as Trustees, sought to be appointed as Trustees in Misc. Civil (Trust) Application No.48 of 1997 of the petitioner Trust.
[2] This Court has admitted this petition and issued notice as to interim relief on 29th March, 2000. Thereafter, an interim order was passed on 12th June, 2000 and this Court after following the decision of the Apex Court in case of Nawab Zain Yar Jung (Since deceased) and others Vs. Director of Endowments, reported in AIR 1963 SC 985, prima facie took the view that the trusts which are not Wakfs will continue to be governed by the provisions of Bombay Public Trusts Act, 1950 even if they are settled by Muslims. The Court has also granted interim relief directing the learned District Judge, Surat to consider the request of the petitioner to appoint Mr.Mahmud Mohemmed Said and Mr.Abu bakr Mohemmed Ashraf as Trustees within two months from the date of receipt of the writ of this Court. Pursuant to the said order, the District Court, Surat has passed the order on 31st July, 2000 provisionally appointing Mr.Mahmud Mohemmed Said and Mr.Abu bakr Mohemmed Ashraf as Trustees and they were directed to work as trustees for a temporary and provisional period as interim measure during the pendency of this petition and as per the direction given by this Court. After the aforesaid order was passed by the District Court on 31st July, 2000, the said two persons are working as Trustees of the Trust.
[3] Heard Mr.M.I.Merchant, learned advocate appearing for the petitioner and Mr.Rashesh Rindani, learned AGP appearing for the respondent.
[4] It is the case of the petitioner that on 3rd April, 1974 one Azam Mohemmed Hatiya executed a document creating a Trust. On the basis of the said document a Trust came to be registered under the provisions of the Bombay Public Trusts Act, 1950 [For short the Act ]. The trust was registered in the office of the learned Assistant Charity Commissioner at Surat on 26th February, 1976 having registration No.E-1533, Surat and the name of the said Trust is Hazi Azam Mohemmed Hatiya Public and Charitable Trust . There is no dispute about the fact that at the time of registration, the document executed by the settlor Mr.Hazi Azam Mohemmed Hatiya on 3rd April, 1974, was accepted as a document creating the Trust and accordingly necessary entries to that effect were made on the basis of the said document in the various columns of the Public Trust register. Initially, three Trustees were appointed by the settlor, (I) Moulvi Mohemmed Azam Hatiya; (ii) Shri Ahmed Said Azam Hatiya and
(iii) Khadijabibi Azam Hatiya. The objects of the Trust are public charitable for the benefit of public at large and mode of succession for appointment of Trustees as mentioned in the deed is that the surviving Trustee shall nominate a person during his life time by filling the name of the person in the nomination form attached in the document creating the Trust and the nominee should accept such nomination as per the consent form mentioned in the document creating the Trust.
[5] Out of the three Trustees, Khadijabibi Azam Hatiya expired on 27th January, 1984, without nominating any person. The remaining Trustees convened a meeting on 3rd May, 1985 and appointed two persons as Trustees in place of the deceased Trustee. After the appointment, a change report was submitted in the office of the learned Assistant Charity Commissioner, Surat being Change Report No.287 of 1985. The said change report came to be decided on 30th June, 1986 and as per the order in the change report, the change report was rejected as the appointment was not made as per the provisions of the Trust Deed.
[6] Thereafter, out of two surviving Trustees another Trustee Mr.Moulvi Mohemmed Azam Hatiya also expired on 17th January, 1993 and prior to that he resigned from the Trust. No one was nominated by him as per the provisions of the Trust Deed. After demise of the said Trustee, only Trustee left was the petitioner and the petitioner under the provisions of Section 47 of the Act made an application to the District Court at Surat being Misc. Civil (Trust) Application No.48 of 1997. In the said matter, the contention was raised on behalf of the respondent that the document created by the settlor dated 3rd April, 1974 is a document creating a wakf and, therefore, the provisions of Wakf Act, 1995 are applicable to the petitioner and the District Court will have no jurisdiction under the provisions of Section 47 of the Bombay Public Trusts Act. On the basis of the said contentions, the District Court, Surat rejected the said application filed by the petitioner on the ground of lack of jurisdiction by its order dated 28th April, 1998.
[7] It is this order which is under challenge in the present petition.
[8] Mr.M. I. Merchant, learned advocate appearing for the petitioner has submitted that the learned District Judge has not exercised his jurisdiction vested in him and thereby committed an illegality and/or irregularity in passing the order. He has further submitted that while coming to the conclusion that the Court has no jurisdiction, the Court has not assigned any reason whatsoever on the basis of document creating the Trust. He has further submitted that the Trust is registered in the office of the learned Assistant Charity Commissioner, Surat and is registered in E Category. That means that it is a Trust for the benefit of public at large having charitable objects and, therefore, not deciding the application of the petitioner on the ground of jurisdiction, the court has committed an error of law.
[9] Mr.Merchant has further submitted that the Wakf Act, 1995 came to be implemented in the State of Gujarat from 1st January, 1996 and the respondent has been appointed as the Survey Commissioner under Section 4 of the Wakf Act for the purpose of making survey of the existing Wakf. The survey has been made and a report of the survey is submitted. As per the knowledge of the petitioner, the Trust of the petitioner has not included in the survey of the Wakf which prima facie shows that, even as per the respondent also, the Trust in question is not a Wakf and, therefore, raising the contention to the contrary cannot be accepted. He has further submitted that as per the settled legal position, it is explicitly clear that there are certain pre-requisites for creation of Wakf. Those requisites are not present in the Trust. He has further submitted that the document date 3rd April, 1974 is a Wakf only on the basis of title mentioned in the document. But the contention of the document makes it clear that it is a public charitable trust and not a Wakf. He has further relied upon the decision of the Apex Court in case of Nawab Zain Yar Jung (Supra) and submitted that the interim order passed by this Court which has been implemented for the last ten years, should be made final and the District Court should be directed to pass an appropriate order considering the appointment of two Trustees for a temporary period, they should be made permanent after making necessary inquiry under Section 47 of the Act, if so required.
[10] Mr.Rashesh Rindani, learned AGP for the respondent, on the other hand, has submitted that the Charity Commissioner is merely a formal party and the Court has to pass an appropriate order after considering the provisions of the Public Trusts Act as well as Wakf Act and after considering the facts of the present case.
[11] Having heard the learned advocates for the parties and having considered the submissions and documents produced before the Court as well as decided case law on the subject, the Court is of the view that the petitioner Trust cannot be considered to be a Wakf simply on the basis of the title of the document. The contents of the document are very clear and the objects which are enumerated therein clearly indicate that the petitioner is a charitable trust. The Apex Court has made it very clear way back in 1963 that simply because trusts are created by Muslims, they cannot be considered as Wakf. Even the survey was undertaken and at that time also, the petitioner was not included in the list of Wakf. Thus, the petitioner can certainly be considered to be the trust and the Civil Court has jurisdiction to decide the issue raised before it. The view taken by the District Court for not deciding the application made under Section 47 of the Act is not correct as the application cannot be rejected merely on the ground that the trust is constituted by Wakf document and the Trust is covered under the provisions of the Wakf Act. The impugned judgment and order passed by the learned Judge is, therefore, quashed and set aside and the matter is remanded back to the District Court, Surat to decide the application and since by way of interim order passed by this Court, two persons namely Mr.Mahmud Mohemmed Said and Mr.Abu Bakr Mohemmed Ashraf appointed as Trustees, who are functioning since 2000 onwards, the District Court is directed to consider the said aspects and pass appropriate order after making necessary inquiry under Section 47 of the Act and if there is nothing objectionable against the aforesaid two persons, they may be made permanent Trustees of the Trust.
[12] With these directions, this petition is, accordingly, disposed of. Rule is made absolute to the aforesaid extent. No order as to costs.
[ K. A. PUJ, J. ] (vijay) Top