Thakkar Raghuram Ranchhodbhai vs Gohil Shivaji Gamarsinh and 2

Honourable Mr. Justice Anant S. Dave

In this petition under Articles 226 and 227 of the Constitution of India, the petitioner-original defendant, who is a power of attorney holder of

President and Secretary of Gujarat Harijan Sevak Sangh, a public charitable trust registered under the Bombay Public Trust Act, 1950 [for short,

''the Act''] having its registration No. A-193/AHD, challenged the order dated 22.08.2012 passed by the learned Additional Civil Judge,

Radhanpur below Exh. 10 in Regular Civil Suit No. 63/2012, as being illegal, unjust, without jurisdiction and contrary to provisions of Sections 50,

51, and 80 of the said Act since the civil court has no jurisdiction to entertain a suit with regard to the matter pertaining to the said Act. By an

application preferred under Order 7 Rule 11 of the Code of Civil Procedure, 1908 [for short, ''the Code''] below Exh. 10, the petitioner defendant

raised a specific plea that in view of provisions of section 80 of the said Act, no Civil Court shall have jurisdiction to decide or deal with any

question which is by or under this Act to be decided or dealt with by any officer or authority under this Act, and in respect of which the decision or

order of such officer or authority has been made final and conclusive.

The trial Court upon considering the above application found that the suit filed by the plaintiff though referred to property of the Trust, but nature

of the suit was for declaration and permanent injunction against an individual has no relevance either with section 50 or 51 or 80 of the said Act,

and therefore, no prior permission of the Charity Commissioner was necessary before institution of the suit nor it was barred u/s 80 of the said Act

as the prayer and relief claimed in the suit was alien to the provision of the said Act.

The above order is under challenge on the ground that the petitioner is duly constituted power of attorney holder of the President and the

Secretary of the Trust. That on the basis of the said power of attorney, initially Additional Collector, Radhanpur had granted non-agricultural

permission in exercise of powers u/s 65 of the Bombay Land Revenue Code. Even development permission was also granted by Radhanpur

Urban Development Authority upon application made by the petitioner in the capacity of power of attorney holder of the Chairman, President and

Secretary of the Trust. In the meanwhile, in view of death of the President of the Trust, the power of attorney was treated as cancelled and the

District Collector, Palanpur as per the order dated 29.08.2011 suspended the resolution of the Town Planning Committee of Radhanpur

Nagarpalika, granting permission to the petitioner. Against which an appeal was preferred before the Secretary, Urban Development and Urban

Housing Department, Gandhinagar. The Core Committee of the Trust as per the meeting dated 13.12.2011 of the Board of Trustees decided to

enter into a new development agreement and to execute power of attorney and again the petitioner is appointed as power of attorney of the

President and Secretary of the Trust. On 18.07.2012 the Deputy Secretary, Urban Development and Urban Housing Department, State of

Gujarat allowed the appeal and set aside the order passed by the Collector, and therefore, the transactions entered into, including the non-

agricultural permission and development of the trust property by the competent authorities have attained finality. In view of the above, learned

advocate for the petitioner submits that a bare reading of the pleadings of the plaint would reveal that the suit is titled as for declaration and

permanent injunction is filed by the plaintiff in the representative capacity.

Paras 1 and 2 of the plaint admittedly refers to the property of the trust. Paras 3 to 5 of the plaint is with regard to alleged dealing with the trust

property and obtaining permission by converting the land into non-agricultural and misuse of power of attorney by the petitioner even a plea is also

taken qua the revenue survey number allotted to the petitioner-trust. In the above circumstances, a clever pleading or drafting of the plaint seeking

declaration against an individual no doubt is against a validly constituted power of attorney of the trustees but for all the purposes the suit was filed

against the trust and trustees qua the trust properties allegedly misused by the petitioner in the individual capacity It is, therefore, submitted that if

sections 50, 51 and 80 of the Act are considered it clearly bars jurisdiction of the civil court, which is not properly considered by the court below,

and therefore, application under Order 7 Rule 11 of the Code ought to have been allowed. Therefore, the trial court has committed illegality and

failed to exercise jurisdiction vested into it.

As against the above, learned counsel Mr. Mehul Shah for the original plaintiff would contend that though reference may have made to the trust

property, but if the pleadings are read conjointly it was against an individual Shri Raghuram Thakkar not basically the status of the defendant as a

power of attorney of the Secretary and President of the Trust was suspected. Further, the grievance of the plaintiff was about illegal construction

carried out on the property of the trust and for misuse like this, an individual, who has no nexus either with the trustees or trust and/or trust

property for which suit for declaration and permanent injunction was maintainable and it was not touching to any of the provisions of the Act, and

therefore, no prior permission of the Charity Commissioner was necessary Even as per section 80 of the Act, it was not a grievance against the

public trust or the trustees, but the whole suit was based against the individuals and grievance raised against them, and therefore, the civil court has

jurisdiction to entertain the suit. By inviting attention to the provisions of Order 7 Rule 11 of the Code, it is submitted that pleadings are to be taken

as gospel truth and the trial court was well within the jurisdiction in refusing the application under Order 7 Rule 11 of the Code when it was noticed

that the suit was filed against an individual by the plaintiff in a representative capacity and no relief can be claimed either against trust or the trustees

and considering the definition of section 24 of the said Act, defining the court, the application was rightly rejected.

It is next contended that against the order impugned, revisional application is maintainable, and therefore, this petition filed by the petitioners

changing even the cause title of the original status of the defendant is not maintainable, and therefore, the petition deserves to be dismissed.

Having heard learned counsels for the parties and on perusal of the record produced with regard to the suit property belonging to the trust, it is

clear that the power of attorney is executed by the President and Secretary of the Trust and the said power of attorney is duly constituted. The

permission granted for non-agricultural purpose as early as on 31.08.2010 considering the application submitted by the petitioner in the capacity of

power of attorney of the Trust viz. President and Secretary and finally while allowing the appeal by the Secretary, the Department of Urban

Development and Urban Housing Department, State of Gujarat cancelled the resolution of the Town Planning Committee of Radhanpur

Nagarpalika. From the above, it is evident that the authorities of the State Government have recognized power of attorney of the petitioner and in

exercise of powers various permissions are granted for conversion of the suit property belonging to the public trust. If the above aspect is seen

along with the pleadings more particularly in para 2 of the plaint specifically refer to the suit property as trust property registered under the Act and

non-agricultural permission was granted qua the above trust property by the Collector. Further usage of the power of attorney by the petitioner is

with regard to the trust property and prayer in para 6 of the plaint is also about revenue survey number which belong to the trust only Thus, all the

pleadings with prayer are considered together would conjointly reveal that the petitioner has misused unauthorizedly the property belonging to the

trust, and therefore, the suit has bearing and nexus with the trust, trustees and properties of the trust registered under the provisions of the Act.

Suit relating to public trusts,

[i] where is alleged that there is a breach of a public trust,

[ii] where a direction or decree is required to recover the possession of or to follow a property belonging or alleged to be belonging to a public

trust, or

[iii] Where the direction of the Court is deemed necessary for the administration of any public trust, the Charity Commissioner after making such

enquiry as he thinks necessary, 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 contentions 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 enquiries;

[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 or in any manner alienated on such

terms and conditions as the court may deem necessary;

[g] the settlement of scheme, or variation or alteration in a scheme already settled,

[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;

Provided further that, the Charity Commissioner may instead of instituting a suit make an application to the Court for a variation or alteration in a

scheme already settled.

50A. Power of Charity Commissioner to frame; amalgamate or modify schemes:

(1) Notwithstanding anything contained in section. 50, where the Charity Commissioner has reason to believe that, in the interest of the proper

management or administration of a public trust, a scheme should be settled for it, or where two or more persons having interest in a public trust

make an application to him in writing in the prescribed manner that, in the interest of the proper management or administration of a public trust, a

scheme should be settled for it, the Charity Commissioner may, if, after giving the trustees of such trust due opportunity to be heard, he is satisfied

that it is necessary or expedient so to do, frame a scheme for the management or administration of such public trust.

(2) Where the Charity Commissioner is of opinion that in the interest of the proper management or administration, two or more public trusts may

be amalgamated by framing a common scheme for the same, he may; after

(a) publishing a notice in the Official Gazette and also if necessary in any newspaper which in the opinion of the Charity Commissioner is best

calculated to bring to the notice of persons likely to be interested in the trust with a wide circulation in the region in which the trust is registered, and

(b) giving the trustees of such trusts and all other interested persons due opportunity to be heard, frame a common scheme for the same.

[2A] A scheme under this section may provide for the number of trustees, the mode of appointment of trustees including the appointment of the

first trustees, vesting of the trust property in the trustees so appointed, mode of filing any vacancy of a trustee, the remuneration of a trustee or

manager of the public trust and where necessary, a clarification of the objects of the public trust.

(3) The Charity Commissioner may, at any time, after hearing the trustees, modify the scheme framed by him under subsection (1) or subsection

(2).

(4) The scheme framed under subsection (1) or subsection (2) or modified under subsection (3) shall, subject to the decision of the competent

court u/s 72, have effect as a scheme settled or altered, as the case may be, under a decree of a Court u/s 50.

Consent of Charity Commissioner for institution of suit.

[1] If the persons having an interest in any public trust intend to file a suit of the nature specified in section 50, they shall apply to the Charity

Commissioner in writing for his consent. If the Charity Commissioner after hearing the parties and making such enquiries (if any) as he thinks fit is

satisfied that there is a prima facie case, he may within a period of six months from the date on which the application is made, grant or refuse his

consent to the institution of such suit. The order of the Charity Commissioner refusing his consent shall be in writing and shall state the reasons for

the refusal.

[2] If the Charity Commissioner refuses his consent to the institution of the suit under subsection (1) the persons applying for such consent may file

an appeal to the Divisional Commissioner in the manner provided by this Act.

[3] In every suit filed by persons having interest in any trust u/s 50, the Charity Commissioner shall be a necessary party.

[4] Subject to the decision of the Divisional Commissioner in appeal u/s 71, the decision of the Charity Commissioner under subsection (1) shall be

final and conclusive.

Bar of jurisdiction :Save as expressly provided in this Act, no Civil Court shall have jurisdiction to decide or deal with any question which is by

or under this Act to be decided or dealt with by any officer or authority under this Act, and in respect of which the decision or order of such officer

or authority has been made final and conclusive.

In view of the above, grievance raised by the respondent-plaintiff before the civil court is pertaining to the property of the public Trust registered

under the Act. So far as alleged misuse by the petitioner as power of attorney holder by the President and Secretary of the Trust is concerned,

though plaintiffs have interest in the Trust, but no permission of the Charity Commissioner was obtained before instituting the suit and the Trust is

not joined as party If the plaint is perused and pleadings are considered without any further probe, it is a suit relating to public trust filed without

observance of provisions of sub-sections (i), (ii) and (iii) of section 50 of the Act. Besides, Section 51 clearly provides consent of Charity

Commissioner for institution of suit and in the facts of this case suit is filed by the plaintiff of the nature specified in section 50 of the said Act. That

section 80 of the said Act contains bar of jurisdiction of civil court to decide or deal with any question, which is by or under the Act to be decided

or dealt with by any officer or authority under the said Act and in support of which the decision of the order of such officer or authority under the

Act has been made final and conclusive. The grievance of the respondent-plaintiff are such for which officer and/or authority of the said Act is

empowered to decide the issue and in addition to the above if the suit is to be filed against the public trust and/or property of the public trust,

consent of the Charity Commissioner ought to have been obtained by the plaintiff. In absence of the consent and not joining the public trust as

party, by making clever pleadings about misuse of the property of the Trust by the duly constituted power of attorney, the suit is filed by the

plaintiff. A bare perusal of the plaint itself reveals that civil suit has no jurisdiction to entertain such suit with regard to the matter pertaining to the

property of the public Trust registered under the Act So far as exercise of powers by the petitioner in the capacity of power of attorney holder of

the President and Secretary of the Public Trust is concerned, it has recognized by the higher authority of the State of Gujarat viz. Secretary, Urban

Development and Urban Housing Department. In view of the above discussion, this petition is allowed and order dated 22.08.2012 passed by the

learned Additional Civil Judge, Radhanpur below Exh. 10 in Regular Civil Suit No. 63/2012 is hereby quashed and set aside. Since, no prior

permission was obtained of the Charity Commissioner before instituting the suit, as envisaged under sections 50 and 51 of the said Act and further

in view of bar contained in Section 80 of the Act about jurisdiction of Civil Court, it is hereby held that the suit itself is not maintainable. Order

accordingly.