The petitioner has placed reliance on Clause (iv) of section 50 to contend that the present suit would be covered by that provision. From the plain language of the above provision it is seen that any suit for declaration or injunction in favour of or against a public trust or trustee or trustees or beneficiary thereof would be covered by Clause (iv) of section 50. However, merely because the relief in the suit is for declaration or injunction that per se would not attract the requirement of obtaining prior permission within the meaning of this section. On the other hand, the requirement of section 50 of obtaining prior permission of the Charity Commissioner to institute suit specified by that provision would arise only when the suit is also for any of the reliefs specified in Clauses (a) to (q) thereof. To my mind, this is the twin requirement to attract the mandate of that provision regarding obtaining prior permission of the Charity Commissioner.
{Para 5}
IN THE HIGH COURT OF BOMBAY
Writ Petition No. 5488 of 1991
Decided On: 16.03.2002
Mahomed Hassan Samru Vs. Peer Hazarath Diwanshah Dargah Trust and Ors.
Hon'ble Judges/Coram:
A.M. Khanwilkar, J.
Citation: MANU/MH/1289/2002,2002(6) BOMCR 253
1. This writ petition under Article 227 takes exception to the order passed by the Joint District Judge, Thane dated 31-10-1991 passed below Exhibit 13 in Trust Suit No. 1 of 1991. Briefly stated, respondents No. 1 to 3 in the writ petition filed suit against the petitioner-defendant No. 1 and respondents Nos. 4 and 5 defendants Nos. 2 and 3 for the following reliefs :-
"(a) It may be declared that the suit lease deed dated 9th February 1887, executed by plaintiff No. 2 in favour of the defendant is void, bad in law and/or voidable and/or inequitable, inoperative and is not binding on the plaintiffs.
(b) It may be declared that the defendant is not entitled to seek non-agricultural permission and/or otherwise to put the property for non-agricultural use on the basis of the suit lease deed mentioned in (a) above.
(c) The defendant acting for himself through agents, servants and relatives, directly or indirectly or otherwise be restrained by an order of otherwise be restrained by an order of permanent injunction not to act on the lease deed dated 9th February, 1987 and not to get the property converted into non-agricultural use or to put the property for any non-agricultural use or to transfer, dispose off, develop ,construct and contract or otherwise create third party interest in the property;
(d) Ad interim injunction in terms of prayer C be granted.
(e) The defendants may be injuncted not to interfere with the plaintiffs possession in the suit land.
(f) The plaintiff trust may be granted the costs of the suit.
(g) Any other order that the Court thinks proper in the interest of justice, equity and may be passed in this case.
(h) Permission to add, alter, amend etc. be given to the plaintiffs, if necessary."
2. In the said suit being Trust Suit No. 1 of 1991, the petitioner filed application, Exhibit 13 calling upon the trial Court to hold the suit as presented was not maintainable and the Civil Court had no jurisdiction to try and entertain the same essentially on the ground that prior permission of the Charity Commissioner for instituting such a suit was not obtained and also because the Charity Commissioner has not been impleaded as defendant in the said suit. The trial Court in the impugned order has negated the stand taken by the petitioner. The trial Court on the other hand has held that the objections raised were inapposite to the requirement of section 50 read with section 51 of the Act.
3. It is not necessary for me to dwell upon the other facts as the same are not relevant for considering the question that arises in the present case. According to the petitioner, the above suit was filed by respondents No. 1 to 3 and since the same was filed by the trust and in respect of the Trust property it could be instituted only consequent to obtaining consent in writing of the Charity Commissioner as required under section 50 read with section 51 of the Bombay Public Trust Act. No other contention has been raised before this Court. On the other hand, Counsel for the respondents has supported the order passed by the trial Court by contending that section 50 of the Act has no application to the fact situation of the present case.
4. Before I proceed to examine the abovesaid submissions, I think it apposite to advert to section 50 of the Act, which reads thus :-
"50. Suit by or against or relating to public trusts or trustees or others
In any case,-
(i) where it is alleged that there is a breach of public trust, negligence, misapplication or misconduct on the part of a trustee or trustees,
(ii) where a direction or decree is required to recovery 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 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 persons 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 situate, 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 enquiries;
(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 wilful default;
(g) a 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 the trust property or its income cy-pres on the lines of section 56 if this relief is claimed along with any other relief mentioned in the section';
(i) a direction authorising 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 conditions as the Court may deem necessary;
(j) the settlement of a scheme, or variations or alteration in a scheme already settled;
(k) an order for amalgamation of two or more trusts by framing a common scheme for the same;
(l) an order for winding up of any trust and applying the funds 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 relief 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 provision 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."
5. The petitioner has placed reliance on Clause (iv) of section 50 to contend that the present suit would be covered by that provision. From the plain language of the above provision it is seen that any suit for declaration or injunction in favour of or against a public trust or trustee or trustees or beneficiary thereof would be covered by Clause (iv) of section 50. However, merely because the relief in the suit is for declaration or injunction that per se would not attract the requirement of obtaining prior permission within the meaning of this section. On the other hand, the requirement of section 50 of obtaining prior permission of the Charity Commissioner to institute suit specified by that provision would arise only when the suit is also for any of the reliefs specified in Clauses (a) to (q) thereof. To my mind, this is the twin requirement to attract the mandate of that provision regarding obtaining prior permission of the Charity Commissioner.
6. In the present case it is seen that the suit is no doubt for declaration and injunction, but the reliefs as claimed would not qualify any of the Clauses (a) to (q) referred to in section 50. The learned Counsel for the petitioner fairly accepts that the reliefs in the present suit may not fall within any of the Clauses (a) to (p), but, he contends that, the same would at least fall within Clause (q) of section 50. This contention does not commend me. Clause (q) cannot be read in isolation. Plain reading of that provision indicates that the Civil Court could grant any other relief as the nature of the case may require which would be a condition precedent to or consequential to any of the relief(s) in Clauses (a) to (p). This provision is, therefore, to be invoked only for granting other relief in aid of any of the reliefs specified in Clauses (a) to (p) to meet the ends of justice. However, the same cannot be interpreted to mean as a residuary Clause to cover any other suits in which the substantive and the main relief is not covered by any of the Clauses in (a) to (p) referred to above. Understood thus, Clause (q) of section 50 will have no application to the present case. In other words, it is seen that the reliefs claimed in the present suit are not covered by any of the Clauses (a) to (q) of section 50. A priori, the requirement of obtaining prior sanction of the Charity Commissioner will have no application to the present case. Accordingly, in my view, the trial Court was right in concluding that the fact situation of the present case does not warrant taking prior sanction of the Charity Commissioner in writing as contended by the petitioner.
7. Since no other contention has been raised before this Court, the writ petition, therefore, deserves to be dismissed; and, as a consequence of which, the order passed by the trial Court dismissing Exhibit 13 is confirmed. Writ petition is dismissed with no order as to costs. Interim order, if any, to stand vacated forthwith. Having regard to the fact that the suit is pending since the year 1991, the trial Court may be well advised to expedite the hearing of the suit and preferably finally decide the same within one year from the receipt of this order.
All concerned to act on the copy of this order duly authenticated by P.S. Sheristedar of this Court.
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