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FA/1044/1987 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1044 of 1987
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RAHIMBHAI
SULEMANMIYA (SINCE DECD.DELETED.) & 4 - Appellant(s)
Versus
SHERBANU
ALAMIYA WD/O.ALAMIYA BAVAMIYA PIRZADA & 4 - Defendant(s)
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Appearance :
MR
PV HATHI for
Appellant(s) : 1, 1.2.1,1.2.2 - 2,4 - 5,5.2.1 MR MB GANDHI for
Appellant(s) : 1.2.3, 3, 5.2.2,5.2.3 MR CHINMAY M GANDHI for
Appellant(s) : 1.2.3, 3, 5.2.2,5.2.3
MR PJ KANABAR for
Defendant(s) : 1,1.2.1 - 2, 2.2.1, 2.2.2,2.2.3 - 3,3.2.1 -
for Defendant(s) : 4 - 5.
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 29/07/2011
ORAL
ORDER
1. By
way of present appeal, appellants-original defendant nos.1 to 5 have
challenged the legality and validity of the judgement and order dated
29.09.1986 of the District Judge, Amreli in Regular Civil Suit No. 1
of 1982, whereby the following order was passed:
” The
suit is decreed in favour of the plaintiffs. The plaintiffs are
entitled to the reliefs as shown in paras 12(1), 12(2) and 12(3) and
the rest of the reliefs except shown in para 12(4) are not granted.
Defendant No. 6 to get the costs from defendants No. 1 to 5 and the
rest of the parties to bear their own costs. The model scheme,
produced by the plaintiffs, is accepted and the parties are directed
to take further necessary action in persuance of the model scheme
submitted before this court alongwith Exh. 50 which is allowed by
this Court. Till then the defendants to continue to work as the
Trustees and they are directed to maintain accounts of Trust
properties.”
2. Brief
facts of the case are that:
2.1 The
respondents-original plaintiffs are the permanent residents of
Shekh-Piparia village and they are the followers of Islam Religion.
In said village there is a “Mosque” of their community
and a tomb of “Hajira Pir Oliya”. The mosque as well as
the “Pir-na-Roza” and the Trust have got properties and
the Trust is running in the name of Shri Shekh Piparia Masjid Tatha
Hajira Pir Trust (hereinafter referred to as ‘Trust’). This Trust is
a public trust and it has been registered as No. B 166 on 10.02.1967.
The original plaintiffs are interested in the working of the trust.
The object of the trust is to do religious functions, such as “Dhoop
Diva” in the Mosque and to burn Loban and Dhoop Deep etc. on
the tomb of Hajira Pir. Further the object of the trust is to impart
education to the members of the community in respect of offering
“Namaz” for their religion’s development. Defendants
Nos. 1 to 5 were working as Munjavar one after the another for the
fulfillment of the said objects of the Trust, and they had to act and
manage the properties accordingly. The property of the Trust is for
the development of the Muslim religion and for the benefit of the
people of Muslim Community. The proceeds of the Trust are to be
utilized for the advantage of the Muslim community and for the
objects of the Trust. The properties of the Trust as well as the
income are neither the individual property of anybody nor nobody can
act arbitrarily for his own advantage and to the disadvantage of the
object of the Trust. Even the Manjavar of the Trust has no right to
use the trust properties or the proceeds of the same for his personal
benefit.
2.2 The
suit is filed by the original plaintiffs praying that the defendants
are not properly managing the trust properties and they are not
acting as per the object of the trust, and therefore, it may be
declared that they have committed breach of the Public Trust Act and
accounts may be taken from them. The District Court, Amreli vide
order dated 29.09.1986 passed in Regular Civil Suit No. 1 of 1982
decreed the suit in favour of the plaintiffs. Being aggrieved by the
said judgement and decree, the appellants, original defendants have
filed the present appeal.
3. This
Court while dealing with Civil Application No. 9819 of 2008 filed in
present appeal passed the following order on 22.08.2008:
1. By
way of this application, the applicants have prayed for the following
reliefs;
“(A) To
join the Gujarat State Wakf Board through its Chief Executive
Officer, Dr. Jivraj Mehta Bhavan, Block No. 8, Gandhinagar in place
of respondent no. 4, Charity Commissioner and / or as respondent in
the above said First Appeal No. 1044/1987.
(B) To
amend the record of the said First Appeal No. 1044/1987.
(C) To
delete the names of respondents no. 1 to 3 all of whom have expired
from the record of the First Appeal.”
(D) ……
2. The
prayer regarding substituting the Gujarat State Wakf Board through
its Chief Executive Officer, Dr. Jivraj Mehta Bhavan, Block No. 8,
Gandhinagar in place of respondent no. 4, Charity Commissioner is
granted.
3. Office
to carry out the amendment accordingly. The application stands
disposed of accordingly. Issue Notice to the newly added party –
respondent, returnable on 26.09.2008.”
4. Mr.
Pathak has appeared for the respondent-Wakf Board. Heard learned
counsel on both sides at length. The matter was adjourned for the
purpose of ascertaining as to whether which authority will take
appropriate action. From the order passed in Civil Application No.
15672 of 2010, it is very clear that present Trust is now registered
with Gujarat State Wakf Board bearing Wakf registration No. B-166:
Amreli District and said certificate is issued on 08.01.2008. This
Court has passed an order to join Wakf Board as party on 22.08.2008.
Therefore, prima facie Gujarat State Wakf Board is controlling
authority for the Trust, which is now known as Wakf Board under the
Islam Law. Respondent No. 4 will be competent authority.
5. Counsel
for the appellant has challenged the order of Trial Court and
submitted that present property, looking to the document which has
come on record and the discussion which has been made by the Trial
Court in Issue No.1, it is clear that it was a Trust property.
Having considered the rival contentions raised by the learned
advocates for the respective parties, averments made in the appeal
and the documentary evidence produced on record as well as the
impugned judgement and order, it transpires that the Trial Court has
rightly observed that the defendants are working against the very
object of the Trust and they are not maintaining the accounts. It is
also observed that they are not dealing with the properties as the
Trust properties. They are taking income of the Trust properties and
utilizing for their own purpose. They are not giving religious
education to the public and the acts stated in the plaint, which are
contrary to the object of the Trust, have been duly proved by the
plaintiffs, and therefore, it is held that the defendants have
committed breach of the public trust. Similarly, it is established
that they have not maintained accounts of the trust properties and
have used the income of the Trust for their personal use for which
they are liable to render accounts of the last three years. The
defendants alone are not fit to work as the trustees but they can
work alongwith other trustees who may be appointed as per the scheme.
6. I
am in complete agreement with the findings recorded by the trial
Court to the effect that the suit properties are the respondent-WAKF
Board’s properties. However, so far as the model scheme formulated by
the plaintiffs which is executed by the trial Court is concerned, it
is pertinent to note here that neither any prayer with respect to
execution of such a scheme is made by the plaintiffs nor has the
trial Court framed any issue in this respect.
7. In
view of aforesaid, present appeal fails and is, accordingly,
dismissed. However, the operative part of the impugned judgment and
order to the effect, “the model scheme produced by the
plaintiffs is accepted and the parties are directed to take further
necessary action in pursuance of the model scheme submitted before
this court alongwith Exh.50 which is allowed by this Court.
Till then the defendants to continue to work as the Trustees and they
are directed to maintain accounts of Trust properties”, is
hereby modified to the extent that now the respondent-WAKF Board will
reconcile the appropriate WAKF Committee and will frame the
appropriate scheme after hearing both the sides and other concerned
persons, within period of One Year from the date of receipt of writ
of present judgment. The appeal stands disposed of accordingly. No
order as to costs.
[K.S.JHAVERI,
J.]
JYOTI
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