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2015 DIGILAW 2056 (RAJ)

Kaushal Kishore Narnoli v. Gopal Public Trust

2015-12-09

BELA M.TRIVEDI

body2015
ORDER 1. The present appeal filed under Section 96 of CPC is directed against the order dated 23/3/2011 passed by the Additional District Judge (Fast Track) No.8, Jaipur City, Jaipur (hereinafter referred to as 'the Trial Court) in Civil Suit No.15 of 2009, whereby the Trial Court has allowed the application of the respondents-defendants filed under Order VII, Rule 11 of CPC seeking rejection of plaint. The said order being decree within the meaning of Section 2(2) of CPC, the appellant-plaintiff has filed the present appeal. 2. The appellant-plaintiff had filed the suit, seeking declaration and mandatory injunction before the Trial Court alleging inter alia that the defendant No.1 is a public trust registered under the provisions of the Rajasthan Public Trust Act, 1959 (hereinafter referred to as 'the said Act'), and the said trust possesses various immovable properties. It was further alleged that the said trust was constituted by the common ancestors of the plaintiff and the defendant Nos.2 to 10, late Shri Ballabh Das, Shri Keshav Das, Shri Hari Das, Shri Ranchordas, Shri Kunjbihari Lal and Shri Bhagwanji. According to the plaintiff, on the death of the founder member of the trust any of his family members has to be nominated, who will remain as trustee only for three years, and thereafter the other member of the family will be appointed as the trustee, and accordingly the plaintiff was entitled for the right of hereditary trustee in view of the Constitution of the trust. It was also alleged that the defendants were misusing and mismanaging the properties of the trust and were not keeping proper accounts. The plaintiff therefore had made an application to the respondent No.14-Assistant Commissioner, Devasthan Department on 7/11/2007, and one application to the defendant No.15-the Commissioner, Devesthan Department on 19/9/2007, raising his grievances about not giving trust-ship to the plaintiff, and about the defendants misusing the properties of the trust, however the said defendants had not taken any action nor had made any application to the concerned Court as required under Section 40 of the said Act. The plaintiff therefore had filed the suit interalia for declaration to the effect that he was entitled to the office of hereditary trustee, and for mandatory injunction directing the defendant Nos.13 to 15 to remove the defendant Shri Balkishan and his other family members as the trustees and to appoint new trustees. The plaintiff therefore had filed the suit interalia for declaration to the effect that he was entitled to the office of hereditary trustee, and for mandatory injunction directing the defendant Nos.13 to 15 to remove the defendant Shri Balkishan and his other family members as the trustees and to appoint new trustees. He also sought permanent injunction, restraining the defendants from misusing the properties of the trust and to manage the properties in accordance with the object of the trust deed. The appellant-plaintiff had also sought necessary direction for the better administration of the trust and its properties. 3. The respondents-defendants having resisted the suit by filing the written statement, had also filed an application under Order VII, Rule 11 (d) of the CPC, seeking rejection of plaint on the ground that the suit was barred under the provisions of Section 73 of the said Act. The Trial Court vide the impugned order dated 23/3/2011 has allowed the said application, against which the present appeal has been filed. 4. It is sought to be submitted by the learned counsel Mr. Saransh Saini for the appellant that the reliefs of declaration and injunction prayed for in the suit in respect of the trust property, could not be granted by any authority under the said Act, and therefore the suit cannot be said to be barred under Section 73 of the said Act. Relying upon the decision of the Division Bench in case of Laxmi Chand Nath & Ors. vs. The Commissioner of Rajasthan through Secretary, Devesthan Department & Ors, 2007(1) WLC 103, he submitted that the question, which cannot be decided by the authorities under the Act, can be decided by the Civil Court, and that the Act would not be applicable to the private trust. Mr. Saini has also placed reliance on the decision of this Court in case of Dinesh Chandra Swami vs. Shri Mahesh Chandra Swami & Ors, 2007(1) WLC 646 to submit that the issue involved in the suit could be decided by the Civil Court only and not by the authority under the said Act. Mr. Mr. Saini has also placed reliance on the decision of this Court in case of Dinesh Chandra Swami vs. Shri Mahesh Chandra Swami & Ors, 2007(1) WLC 646 to submit that the issue involved in the suit could be decided by the Civil Court only and not by the authority under the said Act. Mr. Saini relying upon the provisions contained in Section 40 of the said Act submitted that even otherwise it is the Court which has to decide the issue with regard to removal of trustee or appointing a new trustee or for providing scheme for management of the trust property, and therefore the Trial Court has committed an error in allowing the application under Order VII, Rule 11(d) of CPC filed by the respondents-defendants. 5. However, the learned counsel Mr. Suresh Sahni for the respondents-defendants, taking the Court to the averments made in the plaint, submitted that as per the case of the appellant-plaintiff himself, he had approached the concerned authorities under the said Act, seeking similar reliefs which have been sought in the present suit, and they having failed to take any action, the suit was filed. Placing reliance on the decision of Supreme Court in case of Jaipur Shahar Hindu Vikas Samiti vs. State of Rajasthan & Ors, (2014) 5 SCC 530 and in case of Sharad Kumar vs. Raghuveer Singh & Anr, 2006(1) DNJ 171, he submitted that Act is a complete code containing the provisions with regard to the management and administration of the public trust registered under the said Act, and that the issues or questions which the authority under the Act are entitled to deal with, could not be decided by the Civil Court in view of Section 73 of the said Act. He fairly conceded that the Trial Court should not have relied upon the contentions raised by the respondents-defendants in the written statement, while dealing with the application under Order VII, Rule 11 (d) of CPC. 6. In order to appreciate the rival contentions raised by the learned counsels for the parties, it would be apposite to reproduce the relevant Section 73 of the said Act, which bars the jurisdiction of the Civil Court. 6. In order to appreciate the rival contentions raised by the learned counsels for the parties, it would be apposite to reproduce the relevant Section 73 of the said Act, which bars the jurisdiction of the Civil Court. The said section reads as under :- “Sec. 73 - 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 or in respect of which the decision or order of such officer or authority has been made final and conclusive”. 7. From the bare perusal of the said Section, it clearly transpires that the Civil Court does not have the jurisdiction to decide or deal with any question which is by or under the said Act to be decided or dealt with by any officer or authority under the said Act. Having regard to the averments made in the plaint, it appears that the appellant-plaintiff has sought the declaration to the effect that he was entitled to be appointed as hereditary trustee. He has sought directions for removal of some of the defendants who are the trustees of the trust. The appellant-plaintiff has also sought injunction alleging that the defendants who are the trustees of the trust, are mismanaging and misusing the properties of the trust in question. As averred in para 7 of the said plaint, the plaintiff himself had filed the applications before the defendant Nos.14 and 15, who are the concerned authorities under the Act raising his grievances but they did not pay any heed to it and hence suit was filed. Now Section 38 empowers the Assistant Commissioner to make an inquiry as he thinks necessary, on the application of any person having interest in the public trust, with regard to the issue that the original object of the public trust has failed, or that the trust property was not being properly managed or administered, or that the direction of the Court was necessary for administration of the public trust. After making said inquiry, the Assistant Commissioner is empowered to direct the working trustee or the person interested in the trust to apply to the Court for directions within the such time as may be specified by him, or he himself also can make the application to the Court as contemplated in Section 38(2) of the said Act. Under Section 39 of the said Act, even the Commissioner is empowered to issue necessary direction, when the Assistant Commissioner has rejected the application under Section 38(1), or fails or refuses to make an application to the Court. As per Section 40, the concerned Court, on receipt of the application made under or in pursuance of Section 38 or 39, as the case may be, is empowered to make said inquiry as it deems necessary and pass appropriate orders with regard to the removal of any trustee, appointing any trustee or providing a scheme of management of the trust property and to direct as to how fund of the public trust whose original object has failed, shall be spent. From the conjoint reading of Sections 38, 39 and 40, there remains no shadow of doubt that the concerned person having interest in the public trust has to first approach the authorities under Sections 38 or 39 of the said Act, who after necessary inquiry would direct such person to apply to the Court or they themselves also could make application to the Court, seeking necessary direction and the Court accordingly would give necessary directions as contemplated in Section 40 of the said Act. 8. In the instant case, the appellant-plaintiff himself had approached the said authorities ventilating his grievances and seeking reliefs for appointing him as hereditary trustee, for removal of some of the trustees, and for necessary direction with regard to the better administration of the trust properties, which reliefs have been sought by the plaintiff in the suit itself. Hence even from the bare reading of the plaint, it transpires that according to the plaintiff himself the respondent Nos.14 and 15 were empowered to deal with the issues involved in the suit filed by the plaintiff however they failed to take action. It is true that after necessary inquiry, which may be made by the Assistant Commissioner under Section 38, he would either direct the person interested to apply or he himself would apply seeking direction from the concerned Court. It is true that after necessary inquiry, which may be made by the Assistant Commissioner under Section 38, he would either direct the person interested to apply or he himself would apply seeking direction from the concerned Court. If he refuses to do so, the Commissioner may set aside such order and issue directions, as per Section 39. However, the appellant-plaintiff could not have directly approached the Court, seeking such reliefs, with respect to which the said authority under the said Act was required to deal with. At this junctrue, beneficial reference of the judgment of Supreme Court in case of Jaipur Shakar Hindu Vikas Samiti (supra) is required to be made:- “30. Chapter 8 of the Act deals with Management of trust property. Section 38 therein provides for issuing directions by the Assistant Commissioner on an application filed by any person having interest in a public trust or otherwise that (a) the original object of the public trust has failed; (b) the trust property is not being properly managed or administered; or (c) the direction of the Court is necessary for the administration of the public trust, he can direct inquiry after giving the working trustee an opportunity of being heard. 31. Section 39 provides that where the Assistant Commissioner rejects an application, fails or refuses to make an application to the Court, an appeal lies to the Commissioner. On receipt of an application made under Sections 38 or 39, the Court shall consider and pass appropriate orders under Section 40 of the Act. Section 41 envisages that if the present working trustee of a public trust, for any reasons mentioned therein, can make an application to the Assistant Commissioner having jurisdiction seeking permission to apply to the Court for appointment of a new working trustee and the Court under Section 43 of the Act can make inquiry and pass an order. ................. 37. A detailed examination of the Act reveals that it is a self-contained Act. ................. 37. A detailed examination of the Act reveals that it is a self-contained Act. We have thoroughly examined the Sections and each and every provision of law that is relevant for the purpose of the case on hand and find that the Act has provided appropriate mechanism: (a) to deal with the registration of a public trust; (b) making of entries in the register, their correction and inquiry, if any; (c) duties of auditor and inspection of balance sheet by any person interested in such public trust; (d) application by any person seeking directions from the Assistant Commissioner to appoint a new working trustee on the ground that the properties of the trust are not being properly managed or administered; (e) power of the Assistant Commissioner to ask for explanation of the working trustee about the administration of the trust; and (f) in case of mismanagement, power of the State Government to appoint a new committee of management etc.” 9. The Court therefore is of the opinion that the questions involved in the suit being the questions required to be dealt with by the authorities under the said Act as per Sections 38 and 39 of the said Act, the Civil Court would not have the jurisdiction to decide or deal with the said questions, as per Section 73 thereof. 10. It is true that the Trial Court, while deciding the application under Order VII, Rule 11(d) of CPC, has to consider the averments made in the plaint only, and the Trial Court in the instant case having relied upon the contentions raised by the respondents-defendants in the written statement also, the impugned order to that extent can not be approved. However, since this Court has come to the conclusion for the reasons discussed hereinabove that the Trial Court has no jurisdiction to entertain the suit, the present appeal deserves to be dismissed and is accordingly dismissed. By this order, the stay application and other pending application, if any also stand dismissed.