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Maganbhai Madhabhai Vs. Ambalal Bhikhabhai Patel - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtGujarat High Court
Decided On
Case NumberAppeal from Order No. 128 of 1981 and Civil Application No. 1463 of 1981
Judge
Reported inAIR1982Guj129; (1982)1GLR746
ActsBombay Public Trusts Act, 1950 - Sections 17, 22, 56A and 80; Code of Civil Procedure (CPC), 1908 - Order 7, Rule 1
AppellantMaganbhai Madhabhai
RespondentAmbalal Bhikhabhai Patel
Appellant Advocate G.N. Desai and; H.B. Shah, Advs.
Respondent Advocate Advocate General,; K.S. Nanavati,; P.M. Raval and;
Cases ReferredShripatprasad Beharilaljj Acharyashri v. Lakshmidas Dungarbhai Barot
Excerpt:
.....the register, it is his public duty to record a finding with reasons to that effect. the interim direction given by the district court can well be said to be an interim direction given under s, 56a of the act and so it will nevertheless be a direction under the said provisions themselves and subsection (4) of s 56a will at once get attracted, making the present appeal from order totally incompetent. a good deal of arguments was advanced before me in this regard and a reference was invited to s. it is well nigh possible that in the context of other clauses dealing with disqualification as occurring after election, disqualification in sub-clause (f) also might be likewise a matter of post-election period. 13. before parting with this matter, i would like to note the proviso attached 40 s......judge, nadiad in proceedindgs that had come to be registered with his court as the regular civil suit no. 3 of 1980. the interim injunction that was granted by the learned judge was in favour of the respondents nos. 1 and 2, the original plaintiffs, and it reads as follows:'the ex parte ad interim injunction granted to the plaintiffs on 17-6-80 is made absolute till the final disposal of this suit.'2. a few facts require to be noted closely in order to fully comprehend the controversy. there is the famous temple of laxminarayan dev at vadtal in kheda district. the said temple belongs to the swaminarayan sect which was founded by sahajanand swamy. he had his influence over his various disciples spread over almost all the parts of india and it appears that various temples were.....
Judgment:

1. This appeal is from order has been brought to this Court presumably under o 43 of the Civil P. C. by the original defendants Nos. 5, 6, 7 and 8, being aggrieved by the order of interim injunction granted by the learned Joint District Judge, Nadiad in proceedindgs that had come to be registered with his Court as the Regular Civil Suit No. 3 of 1980. The interim injunction that was granted by the learned Judge was in favour of the respondents Nos. 1 and 2, the original plaintiffs, and it reads as follows:

'The ex parte ad interim injunction granted to the plaintiffs on 17-6-80 is made absolute till the final disposal of this suit.'

2. A few facts require to be noted closely in order to fully comprehend the controversy. There is the famous temple of Laxminarayan Dev at Vadtal in Kheda district. The said temple belongs to the Swaminarayan sect which was founded by Sahajanand Swamy. He had his influence over his various disciples spread over almost all the parts of India and it appears that various temples were established in different parts of the country. - In order to have efficient management of the sect founded by him and also of the system established by him, he had divided the country into two divisions known as Dioceses. India was, therefore, divided into two divisions known as the Northern Diocese with Ahmedabad as its principal seat and the Southern Diocese with its principal seat at Vadtal. In these two seats the main temples of this sect were established. In course of time a Scheme was required to be framed in connection with the Laxminarayan Dev temple at Vadtal and the final Scheme came to be made by this High Court in the F.A. No. 543/70 confirmed to a major extent in the L.P.A. No. 183/73. The scheme is perfect in all details.

Chapter III of the said scheme pertains to Management of Trust Properties and for the purpose of management, in Chapter IV the Constitution of the Board of Managing Trustees is mooted. Clause 18 of the said scheme provides that the Board of Managing Trustees shall consist of 8 members-4 being representatives to be elected from amongst Grahasthis (householders), 3 representatives to be elected from amongst ascetics of the sect consisting of three different types known as Brahmacharis, Sadhus and Palas and the Chief Kothari of the Vadtal temple was to be an ex officio member with no right to vote in matters of appointment, reappointment, dismissal. removal, etc, as provided therein. The election of the first Board of Managing Trustees as per the said scheme had taken place on 31-3-1980. At that election the respondents Nos. 1 and 2 who are hereinafter referred to as the plaintiffs and the present appellants Nos. 1 and 2 who will be referred to as the defendants Nos. 5 and 6 were elected. So were elected the present respondent No. 4, the respondent No. 5 and the respondent No. 6 and respondent No. 7 was the member of the Board in his capacity as the Chief Kothari. Thus the Board consisted of 8 members. The respondents Nos. 4, 5, 6 and 7 will be hereinafter referred to as the defendant Nos. 2, 3, 4 and 9. The present appellants Nos. 3 and 4 are original defendants Nos. V and 8 who will be herein after referred to as such.

3. An agenda of the meeting of the Board of Managing Trustees was issued on 6-6-1980 and the meeting was to be held on 11-6-1980. There was no agenda in respect of the alleged disqualification of the original plaintiffs but there was a residuary item about taking up any matter that was permitted to be taken on hand by the Chairman of the meeting. At that meeting an application was given by the defendant No. 5 to the Trustees that the original plaintiffs were in arrears of 'Namvero' which is said to be a subscription to be paid by registered followers of this sect. The application mentioned that as per Clause 21 of the Scheme the plaintiffs being Satangi members were in arrears of Namvero for a period of more than two years and they had, therefore, automatically ceased to be the members of the Committee. The Namvero is the contribution )f 0.50 P. per year by a registered Satangi.

Despite the protests of the plaintiffs and in the absence of two other members, a resolution was passed that the plaintiffs had automatically vacated their membership and at the very meeting the original defendants Nos. 7 and 8 (who are appellants Nos. 3 and 4 ~in this appeal from order) were appointed. The plaintiffs, therefore, filed the aforesaid Suit No. 2. of 1980 in the District Court for a declaration that the Resolution dated 11-6-1980 passed at the meeting of the Board of Managing Trustees was illegal, undemocratic, violative of the principles of natural justice and therefore none and on that count, the original plaintiffs continued to be the members of the Board of Trustees and the other Trustees had no authority to appoint the original defendants Nos. 7 and 8 as new members and as a consequential relief, it was prayed that the said resolutions declaring the plaintiffs as ex-members and appointing the original defendants Nos. 7 and 8 as new members of the Board be not implemented. A prayer for in term injunction of the very nature was made and it was also granted by the learned Judge and ultimately after hearing both the sides, the said interim injunction was made absolute in terms already extracted above. The present appeal from order is, therefore, directed against that interim injunction.

4. Mr. G. N. Desai who had appeared before the learned District Judge also is appearing as the counsel with Mr. H. B. Shah for the appellants herein. This appeal was argued partly by Mr. Desai and partly by Mr. Shah. Mr. Desai had raised before me the following two, contentions, namely, (1) The District Court of Nadiad had no jurisdiction to entertain the suit of the nature and (2) on interpretation of sub-clause (f) of Clause 21 of the Scheme, the original plaintiffs, membership had come to be automatically terminated and therefore on merits also the injunction could not nave been granted. Mr. Desai had made a pointed grievance before me that even though he had argued extensively the point of lack of jurisdiction, the learned Joint District Judge had totally ignored the said long drawn out submissions of his. Even Mr. P. M. Raval, the learned advocate appearing for some of the respondents herein, on being asked by me, had to admit that Mr. Desai had raised this question. It is really unfortunate that a Judicial Officer of the status of a District Judge totally ignores a point canvassed before him with all vigour and vehemence.

5. The first point argued by Mr.Desai requires to be dealt with first The alleged plaint was made available to me at the time of hearing and even that the plain as if a formal plaint was being drafted. Even the prayer clause showed that a declaration was sought with a consequential relief. Mr. Desai's burden of submission before me was that such a suit did not lie in the District Court because there was no provision in law to bring such a suit anywhere, much less in the District Court. Mr. Desai's submissions to this extent appears to be very well--founded. If it is a regular civil suit under the provisions of the Civil P.C. and under the provisions of the Bombay Civil Courts -Act,, it would have been required to be filed in the court Civil, Judge, Senior Division, at Nadiad' and not in the District Court. No provision of law could be pointed - out on 'behalf. of the contesting respondents as to how these proceedings, if treated as a suit, could be filed in the District Court. A half-hearted attempt was made before me to show that the present Scheme was not the substitution of the earlier Scheme but it was only an amendment of the earlier Scheme and that the earlier Scheme provided for approaching the District Court, Nadiad, for suitable directions. But this attempt obviously for good reasons was not pressingly put forward before me.

Had I treated this as a regular suit filed under the provisions of the Civil P. C., particularly under S. 9 thereof, I would have unhesitatingly held that the suit was misconceived and it was out of gross misconception. presented to the District Court at Nadiad. However, an argument was advanced before me that though labelled as a suit and that too as a regular civil suit and though couched in the language normally employed in terms of Orders 6 and 7 of the Civil P.C., the ostensible appearance of the proceedings should. not. be the decisive factor one way or the other' and it the proceedings could be said to have been under other provisions of some law, they should be treated as such. Mr. H. B. Shah who argued the matter for the appellants before me at the stage of reply to the, arguments of contesting respondents was fair enough to concede that the nomenclature or the label, attached to a particular document presented to the Court should not and could not be made much of and if the proceedings could be said to have been in pith and substance the proceedings under some other specific provision of law, there should be no bar to,.examine the merits of the matter , under that new label or head. What the contesting respondents that is,the original plaintiffs and the remaining of the Trustees other than the defendants Nos. 5 and 6 Who, now supported the case of the original plaintiffs and through the mouth of their advocate Mr. P. M. Raval now stated. That the -present proceedings should be and could be deemed to have been pursued ,under S. 56A of the Bombay Public Trusts Act, 1950 (hereinafter Referred to as the 'Act', for brevity's sake) and all the contention of the contesting respondents was focussed on the said section which I reproduce below in, material parts.

'56A (1) Save as hereinbefore provided in this Act, any trustee of a public trust may apply to the Court within the local limits of whose jurisdiction the whole or part of the subject matter of trust is situate, for the opinion, advice or direction of the Court on any question affecting the management or, administration of the trust property or income thereof, and the Court shall give its opinion, advice, or direction, as the case may be, thereon:

Provided that the Court shall not be bound to give such opinion, advice or direction on any question which it considers to be a question not proper for summary disposal. (2) The Court, on an application under sub-section (1), may give its opinion, advice or direction thereon after giving notice to the Charity Commissioner. The Court before giving any opinion, advice or direction shall afford a reasonable opportunity of being heard to all persons appearing in connection with the application,

(3) A trustee stating in good faith the facts of any matter relating to the trust in an application under sub-section (1), and acting upon the, opinion, advice, or direction of the Court given thereon, shall be deemed, as far as his own responsibility is concerned, to have discharged his duty as such trustee in the matter in respect of which the application was made.

(4) No appeal shall lie against any opinion, advice or direction given under this section.'

6. 1 have therefore to decide whether the document presented to the learned District Judge under the caption of a civil suit and registered by the office of the District Court as the Regular Suit No. 3 of 1980 can conceivably be an application or proceeding initiated by the Trustees for the opinion, advice or direction of the Court on any question affecting the management or administration been defined in Clause 4 of S. 2 of the Act a of the trust property or income thereof. The term 'Court' occurring in the Act has 'the District Court.' So for the purposes of S. 56A of the Act, the District Court will be competent to deal with an application, if it is made by any trustee of a public trust and if it is made for the opinion, advice or direction of the District Court on any question affecting the management or administration of the trust property.

7. To me it appears that the proceedings registered as the Regular Suit No.. 3 of 1980 in the District Court at Nadiad can be said to be the proceedings under S. 56A of the Act because they met with both the above mentioned requirements of S. 56A. They car be termed to be an application to the District Court within the local limits of whose jurisdiction the whole or party of the subject matter of the trust is situate. Secondly, it can be said that, it was made to the District Court by', the original plaintiffs who were trustees and who claimed to be continuing as trustees despite the impugned resolutions. Thirdly, it could be said that the prayer clause put forth in this document presented to the Court initially was for seeking the direction of the Court on the question pertaining to the management or management of the trust properties. The fact that the District Court was requested to declare that the plaintiffs continued as trustees and the defendants Nos. 7 and 8 could not act as trustees would in substance mean that the Court's direction was sought that the plaintiffs were entitled to and the defendants Nos. 7 and 8 were not entitled to, manage and administer the trust properties.

So in the technical sense of the term requirements of sub-see. (1) of S. 56A of the Act can be said to have been met. It is to be noted that it was not the say of Messrs. Desai and Shah that ordinarily the prayer put forth cannot fall within four corners of S. 56A(1) of the Act but the non-application of the said sub-section was pressed into service on the ground that the original plaintiffs had ceased to be trustees by operation of law and secondly it was alleged that the Civil Court's jurisdiction was expressly taken away by S. 80 of the Bombay Public Trusts Act read with S. 22 of the said Act. I shall examine this defence instantly.

8. The Bombay Public Trusts Act is an Act made, by the State Legislature because 'It was expedient to regulate and to make better provision for the administration of public religious and charitable trusts in (the then) State of Bombay.' The examination of various provisions of the Act shows that it is a complete Code pertaining to the regulation and administration of public religious and charitable trusts in the State. In a way this Act can be said to be a sort of a consolidating Act because of the Religious Endowments Act, 1863 and other provisions mentioned in Schedule A appended to that Act ceased to apply to such trusts or class of trusts. In other words, the Bombay Public Trusts Act is a complete Code in so far as the public religious and charitable trusts in the State are concerned. S. 80 of the Act which creates a bar on the Civil Court's jurisdiction is reproduced below.

' 80. 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, or in respect of which the decision or order of such officer or authority has been made final and conclusive.'

The words of importance are 4'save as expressly provided in this Act' which were not taken note of by Messrs. Desai and Shah. The District Court is no doubt a Civil Court and under S. 80 of the Act its jurisdiction to decide or deal with any question which is by or under this Act Ito be decided or dealt with by any officer or authority under this Act is taken away. But this is subject to contrary provisions contained in this Act. In other words, if S. 56A of the Act itself otherwise provides, the bar contained in S. 80 would not be attracted. In my view, it is quite obvious. So if under S. 56A, the District Court has got jurisdiction to issue any direction in respect of the administration or management of the trust properties. Section 80 will not be able to step into the picture. This is a special Act containing special provisions and special provisions are given a place to meet special requirements and contingencies. So the bar contained in S. 80 will not be attracted when any proceedings are initiated under S. 56A of the Act. I have already stated above that the proceedings in the District Court though clothed as a regular civil suit and pursued as such, can legitimately be taken to be the proceedings under S. 56A of the Act. If it be so, the District Court's jurisdiction is not barred.

9. There is another argument also to be dealt with in this connection. Mr. Desai had very vehemently submitted before me that under S. 22 of the Act, the alleged vacating of membership by the plaintiffs and new entrance of the original defendants Nos. 7 and 8 in their place is a matter of change occurring in the entries recorded in the register kept under S. 17 of the Act. Such a change is to be reported to the competent authority, namely, the Deputy or Assistant Charity Commissioner in charge where the register is kept, within 90 days from the date of the occurrence of such change and such officer, after receiving the report and holding an inquiry, if necessary under sub-section (2) of S. 22 of the Act, on being satisfied that the change has occurred in any one of the entries recorded in the register, it is his public duty to record a finding with reasons to that effect. Such a finding even if it is administrative in character is appealable to the Charity Commissioner. It was, therefore, urged that when there was a specific provision made in S. 22 of the Act dealing with the topic which is the subject matter of the present proceedings, the Civil Court's jurisdiction was barred. Section 22 as a matter of fact was invoked for the purpose of invoking the bar contained under Section 80 of the Act.

I have already said above that the said bar cannot be invoked because S. 56A is beyond the domain of the bar contained in S. 80 of the Act. There is an additional reason also not to attach any importance to the inquiry under S. 22 of the Act. Such an inquiry is more administrative in character and if there is a judicial pronouncement under some competent provisions of the Act, the Deputy or Assistant Charity Commissioner acting under S. 22 is bound by it. I The proceedings under S. 56A(1) of the': Act are within judicial yardsticks and jurisdiction in such proceedings will always bind the administrative authority, namely, the Deputy or Assistant Charity Commissioner assigned the duty of keeping the register under S. 17 of the Art up-to-date. Even if the order under S. 56A is said to be more administrative than judicial, it would be an order of a competent authority and the administrative authority acting under S. 22 of the Act will have no powers to arrive at a finding contrary to the finding of the District Court acting under S. 56A of the Act. The plea, therefore, that the District Court has no jurisdiction to deal with the question is an argument difficult to be accepted. The first point canvassed on behalf of the present appellants therefore, does not stand.

10. Once it is held that the order passed by the learned District Judge is the one passed by him under S. 56A of the Act, the very bottom of the present appeal from order stands knocked out. Under S. 56A(4) of the Act, no appeal lies against any opinion, advice or direction given by the Court. The interim direction given by the District Court can well be said to be an interim direction given under S, 56A of the Act and so it will nevertheless be a direction under the said provisions themselves and subsection (4) of S 56A will at once get attracted, making the present appeal from order totally incompetent. I am not oblivious of the fact that the present appeal from order was resorted to because of the plaintiffs themselves had labelled their application to the District Court as a regular suit as if it was a suit filed under the provisions of the Civil Procedure Code. But when a legal question arises, it is to be dealt with technically and when it is held that the said regular suit was for all practical purposes and to all intents and purposes an application under S. 56A of the Act, the order passed therein either finally or at an interim stage would be not subject to any appeal as per the mandate of sub-section (4) of S. 56A.

11. In above view of the matter, the order passed by the learned Joint District Judge, Nadiad, would be required to be treated as final and the present appeal from order will be liable to be dismissed as incompetent. On this ground I dismiss the present appeal with no order as to costs.

12. In above view of the matter, I will not be required, strictly speaking to deal with the second question urged by Mr. Desai. But when it was, raised before me, I may cursorily deal with it in order to give full treatment to the subject argued before me with considerable stress and strain. The learned Joint District Judge for the purposes of interim order thought that the disqualification attracted by sub-clause (f) of Clause 21 of the Scheme pertained to the disqualification occurring in for the period after the election of the members. It is to be noted with pertinence and there was no controversy before me in that regard earlier, that unlike Section 23 of the Gujarat Panchayats Act, the non-payment of 'namvero' is not a disqualification for contesting election for the post of a member of the Board of Trustees under the Scheme. In other words, payment of this subscription is not a matter of qualification for membership. The learned Judge for interim purposes thought as above it is difficult for me to say that that view is not a possible view.

A good deal of arguments was advanced before me in this regard and a reference was invited to S. 283 of the Companies Act and also to the judgment of this High Court in the case of Devrajbhai Valabhai v. Addl. Development Commr. Gujarat State, reported in (1978) 19 Guj LR 1013 and also to the judgment of the Bombay High Court in the case of Shripatprasad Beharilaljj Acharyashri v. Lakshmidas Dungarbhai Barot, reported in : AIR1924Bom193 . It will be out of place for me to express any definite opinion one way or the other in this regard at this stage. it will be open to both the sides to canvass their respective points when the matter is taken up by the District Court for its final disposal. All that I say, at this stage, is that I am not in a position to say that the view taken by the learned District Judge is a view totally untenable. It is well nigh possible that in the context of other clauses dealing with disqualification as occurring after election, disqualification in sub-clause (f) also might be likewise a matter of post-election period. I refrain from expressing any definitive opinion in this regard and leave the matter for the full hearing before the District Court.

13. Before parting with this matter, I would like to note the proviso attached 40 S. 566A (1) of the Act. The Court exercising powers under S. , 56 is not bound to give the directions sought for and the Court may think that it would be inopportune to deal with that question in the summary proceedings under S. 56A of the Act. When the matter is taken up on hand by the District Court, it will be open to it to take into account the proviso of sub-section (1) of S. 56A of the Act and take its own decision on merits as they reflect on him. On this point also, I am not to be understood to have expressed any opinion one way or the other.

14. The result is that the appeal falls and stands dismissed with no order as to costs. In view of the dismissal of the appeal, the interim order passed in the civil application also stands vacated and the civil

15. Appeal dismissed.


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