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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.526 OF 2008
Maharashtra Shetkari Seva Mandal ... Applicant
V/s.
Bhaurao Bayaji Garud ... Respondent
Mr.S.K. Shinde i/b Sagar Kasar for Applicant
Mr.Anilkumar Patil for Respondents
CORAM: SMT.NISHITA MHATRE, J.
JUDGEMENT RESERVED ON: JANUARY 13, 2010
JUDGEMENT PROUNOUNCED ON: FEBRUARY 4, 2010
JUDGMENT:
1. The applicant is aggrieved by the decision of the trial Court by which the
objection raised by it regarding the maintainability of the suit and the jurisdiction of
the Court was rejected. The impugned order has been passed on 16.7.2008 by the
Civil Judge, Junior Division, Manmad City.
2. Regular Civil Suit No.23 of 2008 was filed by the respondent/plaintiff for a
perpetual injunction and for a declaration. An application for interim relief by way of
temporary injunction was also preferred by the plaintiff. The plaintiff contended that
in the year 1971, he had permitted the applicant/defendant trust to use his land
admeasuring 4 ares. According to the plaintiff this land was part of his ancestral land
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and he had permitted the trust to use the land because of the good work carried on
by the trust for the farmers’ benefit. The applicant constructed a godown on this plot
of land which was being used by the agriculturists for storing agricultural produce. It
appears that the farmers discontinued using the godown for storing agricultural
produce and on the request of the plaintiff one of the trustees returned the land to the
plaintiff alongwith the godown standing thereon. The plaintiff then found that the
trustees were obstructing his possession of the suit property and therefore
apprehending that he would be dispossessed the plaintiff filed the aforesaid suit in
June 2008.
3. The applicant trust defended the suit and contended that the suit was not
maintainable and that the civil Court had no jurisdiction to entertain the suit in view of
the provisions of sections 50, 51 and 80 of the Bombay Public Trust Act. Preliminary
issues were framed on the application made by the applicant trust u/s 9A of the CPC.
These issues were answered in favour of the respondent-defendant and hence, the
present civil revision application.
4. The leaned counsel appearing for the applicant – trust submits that the
provisions of section 50 clearly mandate that before a suit can be filed in a civil Court
against the public trust, the permission of the Charity Commissioner must be
obtained. He submits that no suit by or against or relating to public trusts can be
instituted before a Civil Court unless such sanction is granted by the Commissioner.
The learned Counsel further points out that u/s 80 of the Bombay Public Trusts Act,
civil suits are barred in respect of any issue which can be decided or dealt with by an
officer or competent authority under the Public Trusts Act. He points out that in the
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present case, no sanction has been applied for and, therefore, not obtained from the
Charity Commissioner for instituting the suit against the trust. Reliance is placed by
the learned Counsel on the judgment in the case of Mahibubi Abdul Aziz vs. Sayed
Abdul Majid, 2001(3) Bom.C.R. 33. He also points out the judgment in the case of
Virupakshayya Shakarayya vs. Neelakanta Shivacharya Patttadadevaru, AIR 1995
SC 2187 and in the case of Yasinmian Amirmian Faroqui & Ors. v. I.A. Shaikh & Ors.,
1977 GUJARAT LAW REPORTER Vol.XVIII 54.
5. The learned counsel for the respondent submits that the issue as to whether a
person who has no connection with the Trust can file a civil suit without obtaining
permission from the Charity Commissioner is no longer res integra in view of the
decision of the learned Single Judge of this Court in the case of Sainath Mandir
Trust, Amravati v. Vijaya w/o. Vithalrao Mandale & Ors., 2003(4) Mh.L.J. 187. He
submits that a person, not being interested in the trust, who agitates his civil rights
against the trust need not seek the sanction of the Charity Commissioner prior to
filing of a suit. He also relies on the judgment of the Supreme Court in the case of
Vinayaka Dev, Idagunji vs. Shivaram, (2005) 6 SCC 641. The learned advocate
further points out that the bar of section 80 would not operate in the present case as
the respondent is not a person interested in the trust and he is merely ensuring that
his civil rights are not jeopardised.
6. It would be advantageous to consider the provisions of section 50 of the
Bombay Public Trusts Act. Section 50 reads as under:
Section 50. Suit by or against or relating to public trusts or trustees or others.-
In any case-
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(i) where it is alleged that there is a breach of a public trust, negligence,
misapplication or misconduct on the part of a trustee or trustees,
(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 the
proceeds thereof or for an account of such property or the proceeds thereof or
proceeds from a trustee, ex-trustee, alienee, trespasser or any other person
including a person holding adversely to the public trust but not a tenant or
licensee,
(iii) where the direction of the Court is deemed necessary for the
administration of any public trust, or
(iv) for any declaration or injunction in favour of or against a public trust or
trustee or trustees or beneficiary thereof.
the Charity Commissioner after making such enquiry as he thinks necessary,
or two or more persons having an interest in case the suit is under sub-
clauses (i) to (iii), or one or more such persons having an interest in case the
suit is under sub-clause (iv) having obtained the consent in writing of the
Charity Commissioner as provided in Section 51 may institute a suit whether
contentious or not in the Court within the local limits of whose jurisdiction the
whole or part of the subject-matter of the trust is situated, 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,
(d) vesting any property in a trustee,
(e) a direction for taking accounts and making certain inquiries,
(f) an order directing the trustees or others to pay to the trust the loss caused
to the same by their breach of trust, negligence, misapplication, misconduct or
willful default.
(g) declaration as to what proportion of the trust property or of the interest
therein shall be allocated to any particular object of the trust,
(h) a direction to apply to the trust property or its income cy pres on the lines of
section 56 if this relief is claimed alongwith any other relief mentioned int he
section.
(i) 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
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conditions as the court may deem necessary
(j) the settlement of a scheme, or variations or alterations in a scheme already
settled,
(k) an order for amalgamation of two or more trusts by framing a common
scheme for the same
(j) an order for winding up of any trust or applying the trust for other charitable
purposes
(m) an order for handing over of one trust to the trustees of some other trust
and deregistering such trust
(n) an order exonerating the trustees from technical breaches etc.
(o) an order varying altering amending or superseding any instrument of trust
(p) declaration or denying any right in favour of or against a public trust or
trustee or trustees or beneficiary thereof and issuing injunctions in appropriate
cases or
(q) granting any other relief as the nature of the case may require which would
be a condition precedent to or consequential to any of the aforesaid reliefs or
is necessary in the interest of the trust.
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:
Provided also that, the provisions of this section and other consequential
provisions shall apply to all public trusts, whether registered or not or
exempted from the provisions of this Act under sub-section (4) of section 1.
7. The present suit has been filed for a declaration of the plaintiff’s title over the
suit property and for a perpetual injunction. Section 50(iv) would come into play
when an injunction is sought against a public trust. The sanction of the Charity
Commissioner for institution of a suit for the aforesaid reliefs is required only if it is
filed by “a person having an interest”. The suit must be instituted for the reliefs
stipulated u/s 50. These reliefs mainly relate to the working of the trust and its
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trustees. Therefore, permission of the Charity Commissioner would be required
when a suit is instituted by “a person having interest” for a decree in terms of the
reliefs delineated in section 50. The submission of the learned counsel for the
applicant that sanction of the Charity Commissioner is required since the suit is filed
for a declaration and injunction is without merit. The declaration and injunction
sought by the plaintiff relate to his contention about his title to the suit property. Apart
from this the plaintiff is not “a person having interest” as defined u/s 2(10) of the Act.
8. Section 80 would not come into play in the present case as it is only such
questions which can be decided or dealt with by any officer or authority under the Act
which cannot be decided by civil Court. The cause of action giving rise to the present
suit and the reliefs claimed therein cannot be decided by any officer or authority
under the Act. In the cae of Sainath Mandir Trust (supra), a learned Single Judge of
this Court (Kanade, J.) after referring to the judgment of another learned Single
Judge of this Court (Khanwilkar, J.) in the case of Mahibubi Abdul Aziz vs. Sayed
Abdul Majid (supra) has observed that a suit for enforcement by the plaintiff of his
own civil rights cannot be barred by the provisions of section 80. While drawing this
conclusion Kanade, J. has referred to the judgment of this Court (Dhabe, J.) in the
case of Vidarbha Kshatriya Mali Shikshan Sanstha v/s. Mahatma Fuley Shikshan
Samiti, Amravati, 1986 Mh.L.J. 773 wherein the scope of section 50 was considered.
In the facts and circumstances of the case of Sainath Mandir Trust (supra), the Court
observed that the plaintiff had filed a suit for enforcement of his own civil rights since
it was his contention that he had purchased the property by a registered sale deed
from the trust. He claimed possession of the property and therefore it was held that
permission of the Charity Commissioner is not necessary prior to institution of such a
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suit.
9. In the case of Vinayaka Dev (supra), a suit for declaration that the plaintiffs
were hereditary Archaks in the temple entitling them to a share in the offerings made
to the deity was filed. Consequential reliefs were also prayed for restraining the
defendants from interfering with the plaintiffs’ rights. The trust pleaded that the
temple was a public trust registered under the Bombay Public Trusts Act and since
statutory permission of the Charity Commissioner as required under sections 50 and
51 of the Act was not obtained, a suit was not maintainable. The court considered
whether a suit to establish a right to be hereditary Archaks in a temple and a share in
the offerings made to the deity is a suit in relation to the personal/private right of the
Archak or in the nature of exercising of public right in a public trust. In paragraphs 13
and 14, the Court has observed as follows:
13. What is to be seen is the relief the plaintiffs are seeking from the court.
First of all, they are seeking a declaration about their hereditary right as
archaks of the temple. This right is claimed in their personal capacity as a
family of archaks who have been performing the functions of archaks since the
day the temple was established and the deity was consecrated. It is differentmatter whether ultimately the plaintiffs’ contention is accepted by the court or
not. Surely, the plaintiffs are entitled to have their claim examined by the court.
If they fail to establish their claim, they will be out of the court. However, if they
succeed in establishing the claim they will be entitled to the declaration
sought. They cannot be non suited at the threshold unless the suit is expressly
barred by any statute. We have seen the provision of Section 50 of theBombay Public Trusts Act relied upon by the appellants-defendants. The said
section does not cover a suit of the present type. Analogy has been drawn of
Section 92 of the Code of Civil Procedure while considering Section 50 of
Bombay Public Trusts Act. Both provisions are in the nature of representative
suits which pertain to public trusts and protection of public interest in the
trusts. In the present case, there is no public interest involved. The only
interest is that of the plaintiffs and their families. The right of archakship is
claimed on the basis of inheritance. It is a hereditary personal right which they
want to establish. The right is purely of a private nature. We are of the view
that Section 50 of the Bombay Public Trusts Act is not attracted at all in the
facts of the present case.
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14. We have seen the object of the Bombay Public Trusts Act. Appropriately
the Act seeks to regulate and make better provision for administration of publicreligious and charitable trusts. Such trusts cater to things of public interest,
i.e .things which concern large sections of public. Unless such trusts are
properly administered public interest will suffer. Therefore, matters affectingadministration of such trusts are covered under Section 50 of the Bombay
Public Trusts Act. This situation is somewhat similar to suits under Section 92
of the Code of Civil Procedure. These suits are suits in representative capacity
and pertain to matters of public interest. In contrast the suit which has given
rise to the present appeal is a suit to establish an individual right. The plaintiffsclaim that they are hereditary archaks of the temple since time immemorial
and are entitled to exercise this right which cannot be taken away from them.
No public interest is involved. Public is not concerned whether A acts as an
archak or B acts. Such a suit, therefore, cannot be covered by Section 50 of
the Act. Law is settled on this aspect as per various judgments of this Court.
10.
Therefore, in my view, the right claimed in the present suit for a declaration
and an injunction in respect of a property over which the plaintiff, who is not a “person
interested” claims title cannot be said to be barred u/s 80 of the Act nor is the consent
of the Charity Commissioner required prior to institution of such a suit.
11. Civil revision application is dismissed. No costs.
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