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2023 DIGILAW 27 (GUJ)

Darul Ulam Faizurherman Trust v. State of Gujarat

2023-01-03

BIREN VAISHNAV

body2023
JUDGMENT : 1. Heard Mr. Monal Chaglani learned advocate for the petitioners and Ms. Dharitri Pancholi learned AGP for the State and Mr. Shrinil Shah learned advocate appears for the private respondent nos.2 to 5. 2. Challenge in this petition under Article 227 of the Constitution of India by the petitioners is to the order dated 30.09.2021 passed by the Joint Charity Commissioner, by which, the application made by the private respondents under Section 51 of the Gujarat Public Trusts Act, 1950, (for short ‘the Act’) has been granted, as a result of which the private respondents have been permitted to file a suit against the petitioners herein. 3. Facts in brief would indicate that it is the case of the petitioners that the petitioner no.1 is a trust registered under the Act of 1950 whereas the petitioner nos.2 to 6 are the trustees of the Trust. The respondent nos.2 to 5 filed an application before the Charity Commissioner on 05.10.2020 seeking permission to file a suit against the petitioners. It was the case of the private respondents that they are persons interested in the Trust inasmuch as they offer prayers at the Masjid run by the Trust. Reading the application would indicate that it was their case that certain educational institutions are run under the aegis of the Trust. For instance, one Atit Education Trust is manned by the trustees of the Trust. It is further their case that based on certain audit reports, there is maladministration in the trust and therefore, permission is required to file a suit for the reliefs under Section 50 of the Act. By the impugned order, permission is so granted. 4. Mr. Monal Chaglani learned counsel for the petitioner would assail the order of the Joint Charity Commissioner essentially on the ground that the ingredients of Section 51 of the Act are not satisfied. Reading Section 51 of the Act, Mr. Chaglani would submit that a suit has to be filed by a person having any interest in the public trust and evidently, on reading the application filed by the private respondents, what is apparent is that the only interest that they exhibit is of offering prayers in a Masjid. The Trust does not have a Masjid and therefore would indicate that the private respondents are not really interested in the Trust itself. The Trust does not have a Masjid and therefore would indicate that the private respondents are not really interested in the Trust itself. They cannot therefore obviate the essential mechanism of checks and balances which the language of the Section envisages and be permitted to file the suit just alleging maladministration of the Trust. 5. Inviting the Court’s attention to the objects of the Trust, Mr. Chaglani would submit that reading the objects would indicate that the Trust essentially calls for an educational purpose and the averments in the application would indicate that it is the case of so called persons interested to show that they were connected with the education for the objectives of the Trust. Even the stand that they would offer prayers cannot be accepted inasmuch as the applicant nos.1 and 4 were residents of Ahmedabad whereas applicant nos.2 and 3 though were within the District: Junagadh, the distance between the place of their residence Nandarkhi was not that would make one accept the submission of the respondents of offering worship at the Masjid if there was any. 6. Ms. Dharitri Pancholi learned AGP would support the order of the Joint Charity Commissioner. In her submission, while reading Section 51, she would submit that the order has been passed in consonance with the requirements so specified. It is only when the Charity Commissioner refuses the consent that the order has to state reasons for refusal that too in writing for an application being granted therefore no reasons need be assigned. In fact, according to the learned AGP, reasons cogent enough have been assigned by the author of the order which prima-facie would satisfy the authority that the applicants before it were the persons interested and would therefore befit permission to file a suit. 7. Mr. Shrinil Shah learned counsel appearing for the private respondents would object to the maintainability of the petition itself inasmuch as, inviting the Court’s attention to the Trust deed and to the manner and the method of appointment of Trustees, he would submit that except for the settler of the Trust, the term of the other Trustees would be for a period of 3 years. The petitioners, some of them, were appointed as Trustees in the year 1989 and therefore their term ran out in the year 1992 and therefore they were not entitled to file the present petition. The petitioners, some of them, were appointed as Trustees in the year 1989 and therefore their term ran out in the year 1992 and therefore they were not entitled to file the present petition. Even otherwise, as is evident from the contents of the application itself the wards of the private respondents were pursuing their education in the schools run by the Trust and or the institutions so managed by the Trust and they would therefore be the persons interested as is evident from the objective of the Trust and the order therefore need not be interfered with and the petition be dismissed. 8. Considering the submissions made by the learned counsel for the respective parties, reading the language of Section 51 of the Act would indicate that if the persons having any interest in any public trust intend to file a suit, they shall apply to the Charity Commissioner seeking his consent. The application seeking such consent has to be in writing. On the application so made, the Charity Commissioner after hearing the parties has to pass an order after making such inquiry as he thinks fit. If the Charity Commissioner is of the opinion that the consent need not be granted i.e. if the consent is to be refused, he has to record reasons in writing. Further reading of the Section would indicate that the persons interested should have an intention to file a suit of the nature specified in Section 50. Section 50 when read indicates that the suits which relate to public trusts, includes suits where a direction is sought or deemed necessary for the administration of any public trust. As is evident from Clause 3 of Section 50 the reliefs that a suit can encompass would also include grant of any further or other relief as the nature of the case may require. The term “person having interest” is defined in Section 2 (10) of the Act. It is an inclusive definition. Sub-clause (e) of Sub-Section (10) of Section 2 reads to indicate that it can be any beneficiary. 9. Taking into consideration the legal position in totality, in context of the facts on hand, the same apparently indicate that the contention of the learned advocate for the petitioner that the application was essentially under the guise of persons interested so as to offer prayers only is a restricted reading of the application. 9. Taking into consideration the legal position in totality, in context of the facts on hand, the same apparently indicate that the contention of the learned advocate for the petitioner that the application was essentially under the guise of persons interested so as to offer prayers only is a restricted reading of the application. When the entire application made for permission under Section 51 of the Act is perused, it indicates that there are certain educational institutions which in the perception of the applicant are not run and administered for the purposes for which they were so set up. Documents in support thereof are part of the petition. Even the evidence in terms of Jana Bhajik Siddiq which is on record that there is an admission on the part of the trustee himself that at the age of 75 he continues to occupy the position as a trustee despite his failing health, there is a clear admission in the affidavit that his term had expired, that he no longer signs any resolution of the Trust. Of course, this affidavit is assailed by the learned counsel for the petitioner by showing the document at page 137 of the paper book to indicate that the deponent himself then has resiled from this which indicates that everything is in order with the Trust. 10. What is evident to be examined at this stage therefore is not whether the Trust is being administered, and / or maladministered in the perception of the petitioners or the respondents had filed the application under Section 51. That issue is a subject matter which will be decided in the suit filed under Section 50 by the private respondents. The limited issue before the Charity Commissioner whose order is assailed was whether permission to file a suit by the persons could have been granted. At the cost of repetition it is evident from reading the definition of “persons having interest” as set out in Section 2(10) of the Act, in context of memo of the application filed under Section 51, that the Charity Commissioner has only recorded a prima-facie conclusion of the permission to be granted to the private respondents to file the suit. At the cost of repetition it is evident from reading the definition of “persons having interest” as set out in Section 2(10) of the Act, in context of memo of the application filed under Section 51, that the Charity Commissioner has only recorded a prima-facie conclusion of the permission to be granted to the private respondents to file the suit. The issue and the context as to the management of the trust and the disputes inter-se whether it is being done in accordance with the objects thereto is at large before the Trial Court in the suit so filed. I am informed at the bar that the suit is already proceeding as the petitioners have also filed the written statement to the suit. Albeit though the learned counsel for the private respondents would press into service a subsequent development that an application filed under Order 7 Rule 11 by the petitioners has been rejected, it is something which would not weigh with this Court while deciding the order and its legality. 11. Even perusal of the impugned order would indicate that the author of the order has relied upon a decision of this Court in case of Mahendra Dhisalal Agarwal v. Gujarat Revenue Tribunal and others reported in 2021 (1) GLR 589 in context of persons interested. Para 18 of the judgement indicates that beneficiaries who had assailed the affairs of the Trust are also persons interested in the suit. That finding though made in the context of Section 36 of the provisions of the Act, would apply to the case on hand inasmuch as the averments in the application satisfy these tests. Said paragraph 18 reads as under : “18. This leads to an important question as to whether the Court can entertain these petitions which are filed by the persons who are not beneficiaries. There is no dispute on the fact that the trust was constituted for the benefit of the villagers of village Pasodara. Therefore, the villagers being beneficiaries, will have a say in the affairs of the Trust. Therefore, atleast, the petitioners, as mentioned in preceding paras by the villagers can be held to be maintainable. 18.1 However, the issue faced with by this Court is exercise of jurisdiction under Articles 226/227. Therefore, the villagers being beneficiaries, will have a say in the affairs of the Trust. Therefore, atleast, the petitioners, as mentioned in preceding paras by the villagers can be held to be maintainable. 18.1 However, the issue faced with by this Court is exercise of jurisdiction under Articles 226/227. In the facts of this case, where Court in preceding paras has referred to the manner and method in which the proceedings were conducted by the Charity Commissioner and then the Gujarat Revenue Tribunal, the Court finds it apt to refer to and rely upon the judgment of the Apex Court in case of Estralla Rubber Vs. Dass Estate (Private) Limited, reported in (2001) 8 SCC 97 . In para-6, it is held as under:- "6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in number of decisions of this Court. The exercise of power under this Article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do duty expected or required by them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the courts subordinate or tribunals. Exercise of this power and interfering with the orders of the courts or tribunal is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or Tribunal has come to." 12. The High Court can set aside or ignore the findings of facts of inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or Tribunal has come to." 12. Needless to say that these observations made in this order while rejecting the petition and confirming the order granting permission should not weigh with the authority while deciding the suit on merits. 13. With the aforesaid observations, the petition is dismissed.