{"id":99266,"date":"2010-12-21T00:00:00","date_gmt":"2010-12-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jalaram-vs-jt-on-21-december-2010"},"modified":"2016-08-05T03:24:24","modified_gmt":"2016-08-04T21:54:24","slug":"jalaram-vs-jt-on-21-december-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jalaram-vs-jt-on-21-december-2010","title":{"rendered":"Jalaram vs Jt on 21 December, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Jalaram vs Jt on 21 December, 2010<\/div>\n
Author: Jayant Patel,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/8781\/1997\t 17\/ 17\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 8781 of 1997\n \n\n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE JAYANT PATEL\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n=========================================================\n\n \n\nJALARAM\nVIRPUR SMRUTI TRUST - Petitioner(s)\n \n\nVersus\n \n\nJT.\nCHARITY COMMISSIONER - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nM\/S\nTHAKKAR ASSOC. for\nPetitioner(s) : 1, \nMS TRUSHA PATEL, AGP  for Respondent(s) :\n1, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE JAYANT PATEL\n\t\t\n\t\n\n \n\nDate\n: 27\/03\/2008 \n\n \n\n \nORAL\nJUDGMENT<\/pre>\n
The
\n\tshort facts of the case appear to be that the petitioner is
\n\tregistered trust, which came to be formed on account of the trust
\n\tdeed dated 17.3.1961, and it is registered vide registration No.
\n\tA\/2132 at Rajkot. As per the petitioner, the purpose and the object
\n\tof the trust is to provide facility to the pilgrims, who visit
\n\tVirpur to offer their prayers to Shri Jalarambapa, while on the way
\n\tof Somnath, Drawka etc. As per the petitioner, the trust is running
\n\tguest house, and for maintenance of the guest house, it is incurring
\n\texpenses like electricity, bedding and other expenses, and the
\n\tamount\/charge is being collected for maintenance of such expenses on
\n\ttoken basis from the visitors\/pilgrims. As per the petitioner
\n\trunning of guest house is a business activity, which would fall in
\n\tthe category of Rule 32 (4) of the Bombay Public Trust (Gujarat)
\n\tRules 1961 (hereinafter referred as to the ‘Rules’). It appears that
\n\tdemand notice was issued for recovery of the contribution, by the
\n\tAsst. Charity Commissioner. The petitioner raised objection, and
\n\tcontended that it has paid the amount of contribution, based on the
\n\tnet income, after deduction of the expenses. The Asst. Charity
\n\tCommissioner, ultimately passed the order on 11.8.1995, whereby held
\n\tthat the assessment be treated under Rule 32(4). It appears the the
\n\tJoint Charity Commissioner, in suo
\n\tmotu exercise of the power under Rule 33(6), initiated the
\n\tproceedings against the order of the Asst. Charity Commissioner. The
\n\tpetitioner submitted written reply, and contended that the order
\n\tpassed by the Asst. Charity Commissioner is legal. The Joint Charity
\n\tCommissioner, ultimately found that running of guest house (Atithi
\n\tGruh) cannot be said as trade\/business and therefore, not falling
\n\twithin the category of Rule 32(4) of the Rules and therefore, he
\n\tallowed the proceedings, and set aside the order passed by the Asst.
\n\tCharity Commissioner, and directed for the recovery of the remaining
\n\tamount. It is under these circumstances, the present petition before
\n\tthis Court<\/p>\n
Heard
\n\tMrs. Sangeeta Pahwa learned Counsel for the petitioner, and Ms.
\n\tTrusha Patel learned AGP for the respondent.\n<\/p>\n
The
\n\tprincipal aspect which may
\n\tdeserves consideration in the present proceedings is the scope of
\n\tambit of Rule 33(4), and as to whether the activity of the
\n\tpetitioner for running guest house at Virpur can be said as falling
\n\tunder Rule 33(4) of the Rules or not.\n<\/p>\n
In
\n\torder to examine the above referred aspect, certain statutory
\n\tprovisions, which may have the relevance, deserves to be considered.\n<\/p>\n
Section
\n\t58 of the Bombay Public Trust Act (hereinafter referred as to the
\n\t‘Act) reads as under:\n<\/p>\n
?S58.\n<\/p>\n
\tContributions by public trusts to Public Trusts Administration Fund.\n<\/p>\n
[(1)]
\n\tEvery public trust shall pay to the Public Trusts Administration
\n\tFund annually such contribution on such date and in such manner as
\n\tmay be prescribed:\n<\/p>\n
[PROVIDED
\n\tthat the contribution prescribed under this section shall-\n<\/p>\n
(i)
\n\tIn the case of a dharmada, be fixed at rates in proportion to the
\n\tgross annual collection or receipts of the dharmada;\n<\/p>\n
(ii)
\n\tin the case of other public trust, be fixed at the rates in
\n\tproportion to the gross annual income of such public trust.]<\/p>\n
[Explanation-\n<\/p>\n
\tFor the purposes of this section, the gross annual income shall
\n\tinclude gross income from all sources in a year excluding donations
\n\tgiven or offering made with a specific direction that they shall
\n\tform part of the corpus of the public trust;\n<\/p>\n
PROVIDED
\n\tthat the interest or income accruing from such donations or
\n\tofferings in the years following that in which they were given or
\n\tmade shall be taken into account in calculating the gross annual
\n\tincome.]<\/p>\n
[(2)
\n\tNotwithstanding anything contained in sub-section (1), the State
\n\tGovernment may, by rules, provide for exemption of nay public trust
\n\tor class of public trusts from the whole or any part of the
\n\tcontribution payable under that sub-section, subject to such
\n\tconditions, if any, as may be prescribed.]??\n<\/p>\n
As
\n\tper Section 58(1) of the Act, and more particularly the proviso, two
\n\tcategories are mentioned for the purpose of collection of
\n\tcontribution. One being in case of Dharmada at the fixed proportion
\n\tto the gross collection or the receipts of Dharmada, and the another
\n\tbeing residuary, at the rate in proportion to gross annual income of
\n\tsuch public trust. Therefore, it appears that as per the scheme of
\n\tSection 58(1) of the Act, the contribution is payable in case of
\n\tDharmada at the fixed rate in proportion to the gross annual
\n\tcollection or the receipts of Dharmada. Whereas in case of other
\n\tpublic trust, such contribution is payable in proportion to the
\n\tgross annual income of such public trust. Section 58(2) of the Act,
\n\tprovides that notwithstanding anything contained in sub-section (1),
\n\tthe State Government may also provide by rules for exemption to any
\n\tpublic trust from payment of the whole, or part of contribution
\n\tpayable.\n<\/p>\n
At
\n\tthis stage rule 32 may have the relevance. Rule 32(1) provides that
\n\tif the public trust other than exclusively for the purpose of
\n\tadvancement and propagation of secular education or exclusively for
\n\tthe purpose of medical relief or veterinary treatment of animals
\n\tshall pay annual the contribution in the Administration Fund at the
\n\trate of 2 percent of its gross annual income, or, where public trust
\n\tis dharmada, its gross annual collection or the receipts, subject to
\n\tmaximum limit of Rs. 50,000\/- per year. Rule 32 (1A) provides that
\n\tnotwithstanding anything contained in sub-rule (1), for the period
\n\tbetween 1st April, 1978 and 31st March, 1979
\n\tassessment shall be at the rate of 1 percent as against 2 percent as
\n\tprovided by sub rule (1). Rule 32 (2) provides that the contribution
\n\tshall be assessed on the basis of the gross annual income or
\n\tcollection or the receipts, as the case may be, based on the period
\n\tof previous 12 months from first day of March or any other day which
\n\twere fixed by the Charity Commissioner for the purpose of Section 33
\n\t(1) of the Act. Rule 32(3) provides for the mode of calculation of
\n\tgross annual income of a public trust or the gross
\n\tcollection\/receipts of a public trust in case of dharmada for the
\n\tpurpose of assessment of the contribution and various heads are
\n\tprovided for permissibility of the deductions. Rule 32(4) which
\n\tmainly arise for consideration in the present petition reads as
\n\tunder:\n<\/p>\n
32<\/span><\/p>\n
\t(4) If a public trust conduct  a business or trade, for the purpose
\n\tof assessing the contribution, the net annual profits of such
\n\tbusiness or trade shall be treated as the gross annual income of the
\n\tbusiness or trade.\n<\/p>\n
The
\n\taforesaid Rule 32(4) provides that if a public trust conduct  a
\n\tbusiness or trade, then for the purpose of assessing contribution,
\n\tthe net annual profits of such business or trade shall be treated as
\n\tthe gross annual income of the business or trade. Therefore, in case
\n\tof a public trust conducting the business or trade, such
\n\tcontribution is payable on net annual profit of such business or
\n\ttrade.\n<\/p>\n
As
\n\tthe impugned decision is based on aspect of activity, which cannot
\n\tbe termed as business, as per the view taken by the Joint Charity
\n\tCommissioner in the impugned order, it may be required to examine
\n\tthe meaning of word ?Sbusiness?? or word ?Strade??. In order to
\n\tunderstand the meaning ?Strade??, there is no much difficulty, and
\n\tit can be said understood to mean, if there is sale and purchase or
\n\tdealing of any product or items, such can be terms as ?Strade??.
\n\tIt appears that learned Joint Charity Commissioner has misdirected
\n\thimself in the proceedings, on the basis that activity of trade and
\n\tof the business are the same. Whereas it was the contention of the
\n\tpetitioner that it is conducting business. Since the legislature has
\n\tused word ?Sbusiness?? or ?Strade??, both the words ?Sbusiness??
\n\tand ?Strade?? would be required to be given proper meaning. Had
\n\tthe legislature, intended to include only conducting of ?Strade??
\n\tunder Rule 32(4), it might not have used the word ?Sbusiness??.
\n\tThe fact that the word ?Sbusiness?? is also used, Rule 32 (4) can
\n\tbe read to the effect that if a public trust conducts the ?Sbusiness??
\n\tor conducts a ?Strade?? for the purpose of assessment of the
\n\tcontribution, the net annual profit shall be treated as the gross
\n\tannual income for the purpose of calculation of the contribution.\n<\/p>\n
As
\n\tthe activity of the petitioner trust of running guest house, is not
\n\ta trade, it is not required for this Court, to examine the matter in
\n\tdetail for understanding the meaning of the word ?Strade??, but as
\n\tthe contention of the petitioner is that running of guest house
\n\twould fall in the word ?Sbusiness??, it may have the relevance for
\n\tthe purpose of deciding the present petition.\n<\/p>\n
Learned
\n\tCounsel for the petitioner contended that in view of the
\n\tincorporation of the word
\n\t‘business’ in the present act, read with the rules, the meaning
\n\tdeserves to be given. Whereas it is the contention of Ms. Trushal
\n\tPatel learned AGP that trust is not formed with the essential
\n\tpurpose of conducing business, and if trust is not formed for
\n\tprincipal object of contending business, incidental object or the
\n\tincidental activity of running guest house, by the trust cannot be
\n\tpermitted to travel beyond the main object of the trust and
\n\ttherefore, would not fall within the definition of the word
\n\t?Sbusiness??, nor can be said that the petitioner trust conducts
\n\tthe business while running guest house.\n<\/p>\n
In
\n\tsupport of her contention learned AGP Ms. Trusha Patel relied upon
\n\tthe decision of the Apex Court in case of Commissioner of
\n\tSales Tax v. Sai Publication Fund reported at 2002(3) GLH 149.\n<\/p>\n
If
\n\tthe matter is examined, in light of the documents on record, the
\n\ttrust deed shows that the same is formed for establishing the guest
\n\thouse, and with the object to provide residential accommodation to
\n\tthe pilgrims, who may stay at Virpur for offering prayers or while
\n\tvisiting Girnar, Kund-Damodar, Jyotirling of Somnath, Dwarka, Temple
\n\tof Sudama etc. Therefore, the principal object is to provide
\n\tresidential accommodation to the pilgrims. In view of the expressed
\n\tlanguage of the trust deed, for providing residential
\n\tfacility\/accommodation to the pilgrims on the way to various places
\n\tof Saurashtra, by establishing Atithi Gruh (Guest House), I cannot
\n\taccept the contention of the learned AGP that the principal object
\n\tis different and its only by way of incidental object the trust is
\n\trunning guest house. Therefore, the said decision is of no help to
\n\tthe State Government.\n<\/p>\n
It
\n\tdeserves to be recorded that as such the meaning of the word under
\n\tany statute can be given in context on the principal statute and if
\n\tsimilar circumstances exists, the reference to the another statute
\n\tmay assume importance. Merely because the particular word
\n\tunder different statute which has different object altogether, is
\n\tinterpreted, the same meaning, as such cannot be incorporated in
\n\ttoto. The reference may be made to the decision of the Apex Court in
\n\tcase of S. Mohan Lal, v. R. Kondiah reported at AIR 1979 SC
\n\t1132, more particularly the observations made at para 3
\n\twherein the Apex Court inter alia observed as under:\n<\/p>\n
?S3…\n<\/p>\n
\tIt is not a sound principle of construction to interpret expressions
\n\tused in one Act with reference to their use in another Act; more so
\n\tif the two Acts in which the same word is used are not cognate Acts,
\n\tNeither the meaning, nor the definition of the term in one statute
\n\taffords a guide to the construction of the same term in another
\n\tstatute and the sense in which the term has been understood in the
\n\tseveral statutes does not necessarily throw any light on the manner
\n\tin which the term should be understood generally. On the other hand
\n\tit is a sound, and, indeed, a well known principle of construction
\n\tthat meaning of words and expressions used in an Act must take their
\n\tcolour from the context in which they appear…??\n<\/p>\n
Therefore,
\n\tas such while giving correct meaning to the word ?Sbusiness??
\n\tunder Rule 32(4), it has to be kept in mind that such rule as
\n\treferred to for the activity is of the public trust for the purpose
\n\tof calculation of the administration fund, and the word ?Sbusiness??
\n\tis not used in the language by legislature in taxing statute, or an
\n\tact governing or regulating only absolutely commercial activity. If
\n\tthe plain and simple meaning of the word ?Sbusiness?? is to be
\n\textracted, it would mean a regular activity in contradiction to
\n\tsingle action or single act. Therefore, if any particular singular
\n\ttransaction or singular activity is undertaken, it may not fall in
\n\tthe regular activity for example, a trust in building constructed,
\n\tpermits accommodation of the pilgrims, once or twice, it cannot be
\n\tconstrued as the business of the trust, but if it is regular
\n\tactivity run  for providing of accommodation to the pilgrims in
\n\tguest house, it can be said that such activity would fall within the
\n\tmeaning of the word ?Sbusiness??. At this stage reference may be
\n\tmade to the decision of the Delhi High Court in case of M\/s
\n\tBakhtawar Singh Balkrishan, New Delhi v. Union of India and another
\n\treported at AIR 1983 Delhi page 201, wherein question arose
\n\tfor consideration before the High Court of Delhi for interpreting
\n\tthe word ?Scarries on business?? or ?Sbusiness?? with reference
\n\tto Section 20 of CPC, which provides for the cause of action either
\n\tin whole or in part. In the said decision the meaning of the
\n\texpression ?Scarries on business?? from Halsbury’s Law of England
\n\tfourth edition volume 10 page 66-67 as considered by the English
\n\tCourt in some cases was considered that ?Sthe person who merely
\n\tworks for another for gain or was employee about the business of
\n\tanother, could not be said to be ?Scarries on business?? within
\n\tthe meaning of the expression ?Scarries on business?? because such
\n\tperson was merely working for gain for another.\n<\/p>\n
After
\n\tconsidering aforesaid, at para 7 it was observed as under:\n<\/p>\n
7.??The
\n\texpression ?Sbusiness?? has a very wide import and is understood
\n\tin different sense in varying contexts. In its generic sense,
\n\t?Sbusiness?? is any purposeful activity, any activity, directed
\n\ttowards some end, an activity engaged in as normal, logical or
\n\tinevitable and usually extending over a period of time. It has been
\n\tused in that sense as being synonymous with ?Srole?? or
\n\t?Sfunction??. While in its narrow sense, it is confined to
\n\tactivity of a commercial nature with a profit motivation, in its
\n\twide sense, it is used to denote conduct of his or its affairs by
\n\tany person, body or authority. There has been considerable
\n\tdifficulty in defining the expression ?Sbusiness?? and while the
\n\tmeaning to be attributed to the expression would depend largely on
\n\tthe context, there is, by and large, unanimity that the expression
\n\thas a very wide import and would encompass in the word of Lindley,
\n\tL.J., (1884) 27 Ch D 71 ?Salmost anything which is an occupation,
\n\tas distinct from a pleasure-anything which is an occupation or duty
\n\twhich requires attention is a business??. These words have since
\n\tfound their echo in the subsequent decisions on the interpretation
\n\tof the expression ?Sbusiness?? and of analogous terms both in
\n\tEngland and in this country. The expression ?Scarries on business??
\n\thas the connotation of permanence and of regularity to distinguish
\n\tit from an isolated act or activity. The amplitude of the expression
\n\t?Scarries on business??, however, could not possibly be construed
\n\tas having been restricted merely because it is used in conjunction
\n\twith ?Spersonally works for gain?? nor it is possible to read into
\n\tthe expression ?Scarries on business?? the element of gain or of
\n\tprofit in the activity that is carried on. The expression ?Scarries
\n\ton business?? is much wider than what the expression in normal
\n\tparlance connotes because of the ambit of a civil action….??\n<\/p>\n
I
\n\tam in agreement with the view taken by the High Court of Delhi. I
\n\tfind that keeping in view the provisions of the present act, which
\n\tis essentially meant for
\n\tregulation of the activity of a public trust, there may not be
\n\telement of profit making, but may be element of rendering services
\n\tto the beneficiary, or to the public at large. Therefore, meaning of
\n\tthe word ?Sbusiness?? must be read in wider sense instead of
\n\trestricting it only for such activity having element of profit or
\n\tcommercialisation. However, such would apply to the trust, which is
\n\texclusively running such activity on regular basis. Further if the
\n\ttrust is a dharmada and also running regular activity for rendering
\n\tservices to the society, then the dharmada would stand on separate
\n\tfooting, and the regular activity of rendering service to the public
\n\twould stand on separate footing for the purpose of payment of
\n\tcontribution, but subject to maximum limit prescribed.\n<\/p>\n
If
\n\tthe facts of the present case are examined in light of the aforesaid
\n\tobservations, it can be said that the activity of the trust for
\n\tregularly maintaining the guest house for providing residential
\n\taccommodation to the pilgrims, can be said as conducting of
\n\tbusiness, which would fall within the provisions of Rule 32(4) of
\n\tthe rules. Therefore, the order passed by the Deputy Charity
\n\tCommissioner for insistence of the contribution based on the gross
\n\treceipts, and not based on the net actual profit\/income cannot be
\n\tsustained in the eye of law. Hence, the same is quashed and set
\n\taside.\n<\/p>\n
The
\n\tpetition is allowed. Rule made absolute accordingly. No order as to
\n\tcosts.\n<\/p>\n
(JAYANT
\n\tPATEL,J.)<\/p>\n
Suresh*<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Jalaram vs Jt on 21 December, 2010 Author: Jayant Patel,&Nbsp; Gujarat High Court Case Information System Print SCA\/8781\/1997 17\/ 17 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8781 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-99266","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nJalaram vs Jt on 21 December, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jalaram-vs-jt-on-21-december-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jalaram vs Jt on 21 December, 2010 - 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