Narmadabai and anr. Vs. Trust Shri Panchvati Balaji Mandir and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/670976
SubjectTrusts and Societies
CourtSupreme Court of India
Decided OnJan-19-1995
Case NumberCivil Appeal No. ... of 1995
Judge A.S. Anand and; M.K. Mukherjee, JJ.
Reported in1995Supp(3)SCC676
ActsBombay Public Trusts Act, 1950 - Sections 72, 50, 51; Code Of Civil Procedure (CPC), 1908 - Section 9-A
AppellantNarmadabai and anr.
RespondentTrust Shri Panchvati Balaji Mandir and ors.
DispositionAppeal Dismissed
Prior historyArising out of SLP (C) No. 13920 of 1994
Excerpt:
- [ a.s. anand and; m.k. mukherjee, jj.] -- trusts and trustees — bombay public trusts act, 1950 (29 of 1950) — sections. 50(iv)(e) & (p), 51, 50-a and 2(13) & (17) — suit for injunction to restrain the defendants from interfering with the implementation of the scheme for better management and administration of the public trust (temple in this case), settled by the charity commissioner and from prohibiting the plaintiffs and certain others from entering the public trust (temple in this case) and offering prayers and performing festivals — filed without the consent of the charity commissioner against persons not being the beneficiaries -- on an application filed by the respondents herein before the assistant charity commissioner a declaration was granted to the effect that the balaji temple was a public trust. after granting the declaration, the assistant charity commissioner granted permission to register the property as the property of the public trust. the suit however is pending disposal. finding that the appellants were causing hindrance in the implementation of the scheme framed by the joint charity commissioner, the respondents filed civil suit no. 394 of 1993 in the court of civil judge, senior division, aurangabad against the appellants claiming the following reliefs. the suit filed by the respondents is not for any declaration or injunction in favour of or against the public trust.appeal dismisseda.s. anand and; m.k. mukherjee, jj.1. leave granted.2. on an application filed by the respondents herein before the assistant charity commissioner a declaration was granted to the effect that the balaji temple was a public trust. that declaration was granted despite the objection raised by the two appellants herein claiming the temple to be their private property and not the property of the public trust. after granting the declaration, the assistant charity commissioner granted permission to register the property as the property of the public trust. the order was challenged before the deputy charity commissioner who however confirmed the finding of the assistant charity commissioner. the matter was taken up before the district judge in an application under section 72 of the bombay public trusts act, 1950 (hereinafter the ‘act’) and a finding was returned holding the temple to be a public trust. an appeal to the high court by the appellants failed, with the result that the findings of the assistant charity commissioner declaring the temple property to be a public trust stood confirmed. pursuant to the findings recorded by the authorities, the temple was registered as a public trust. a scheme for better management and administration of the temple came to be framed and the scheme was settled by the joint charity commissioner, aurangabad by his order dated 23-7-1985. after the framing of the scheme, the appellants moved the joint charity commissioner, aurangabad to stay the enforcement and operation of the scheme but failed. subsequently, it appears, that in 1993, the appellants filed a suit in the court of civil judge, senior division, aurangabad for a declaration that balaji temple, chelipura, aurangabad is the personal and private temple of the appellants and the property belonging to the temple is not the property of the public trust. the appellants also sought a perpetua1/temporary injunction restraining the respondents not to disturb or interfere with their possession, enjoyment and ownership of the temple and its property. the injunction was refused by the civil court. the suit however is pending disposal. finding that the appellants were causing hindrance in the implementation of the scheme framed by the joint charity commissioner, the respondents filed civil suit no. 394 of 1993 in the court of civil judge, senior division, aurangabad against the appellants claiming the following reliefs:“a. suit of the plaintiffs may be decreed with costs with the following reliefs.b. defendants 1 and 2, their agents, or anybody claiming through them may be perpetually restrained by an order of injunction from interfering and obstructing the implementation of the scheme framed, settled and approved by joint charity commissioner, aurangabad on 23-7-1985 in respect of trust panchvati shri balaji mandir [h. no. 1036 (old)/1-29-1 (new) situated at chelipura, aurangabad having registration no. a-3241 (au.)].c. the defendants be restrained perpetually from prohibiting the plaintiffs, trustees and the devotees of lord balaji from entering the suit temple i.e. shri panchvati shri balaji mandir chelipura, aurangabad and offering prayers and performing festivals like gokul ashtami, ganesh chaturthi, ram navami, holi etc.d. defendants 1 and 2 be directed to render the accounts of the income which they have received from the suit property/trust since 1973 till the date of filing of the suit.e. the mesne profits for the period of last 3 years and the future mesne profits be determined and awarded to the plaintiffs. the cost of the suit and such other just and equitable relief may be granted and oblige.”3. the appellants filed an application before the trial court under section 9-a of the code of civil procedure and claimed that since the respondents (plaintiffs in the suit) had not obtained permission of the charity commissioner, as envisaged by sections 50/51 of the act for the institution of the civil suit, the suit was not maintainable. the learned civil judge rejected the application and the matter was carried to the high court in a civil revision. the high court directed the trial court to frame a preliminary issue in that regard and decide that issue before proceeding further in the case. accordingly the following preliminary issue was framed:“whether defendant prove that this court has no jurisdiction for want of permission under sections 50 and 51 of bombay public trust act, 1950.”4. the trial court held, vide its order dated 3-2-1994, that the suit was maintainable, without the permission of the charity commissioner and decided the preliminary issue against the appellants. a civil revision against the order of the trial court was dismissed by the high court on 29-6-1994. hence this appeal by special leave.5. learned counsel for the appellants has rested his case on clause (iv) of section 50 of the act to urge that without the permission of the charity commissioner, the suit filed by the respondents was not maintainable. reliance is placed on clauses (e) and (p) of section 50 of the act to urge that since the reliefs claimed for in the suit filed by the respondents are covered by the said two clauses, the suit could not have been filed without obtaining the consent, in writing, of the charity commissioner as provided for in section 51 of the act. the argument, though attractive on the face of it, does not bear close scrutiny.6. clause (iv) of section 50 of the act provides as follows:“50. suit by or against or relating to public trusts or trustees or others.—in any case; —* * *(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 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 contentions 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:* * *(e) a direction for taking accounts and making certain enquiries;* * *(p) declaring or denying any right in favour of or against a public trust or trustee or trustees ....”7. the suit filed by the respondents is not for any declaration or injunction in favour of or against the public trust. it is not even for seeking a declaration or injunction in favour of or against the trustee/trustees. the appellants are, in view of the orders of the authorities under the act, not the beneficiaries either and therefore, clause (iv) has no application whatsoever to the suit filed by the respondents. once it is found that clause (iv) of section 50 (supra) is not attracted, the question of the nature of reliefs claimed for in the suit being covered by clauses (e) and (p) does not arise. keeping in view the nature of the suit, in our opinion both the trial court and the high court were right in holding that since the trust is a registered trust and the suit is filed to seek enforcement of the scheme as settled by the joint charity commissioner, the suit is not covered by any of the sub-clauses of section 50 of the act and no prior written consent of the charity commissioner was necessary to maintain the suit. the appeal therefore fails and is dismissed. there shall be no order as to costs.
Judgment:

A.S. Anand and; M.K. Mukherjee, JJ.

1. Leave granted.

2. On an application filed by the respondents herein before the Assistant Charity Commissioner a declaration was granted to the effect that the Balaji Temple was a public trust. That declaration was granted despite the objection raised by the two appellants herein claiming the temple to be their private property and not the property of the public trust. After granting the declaration, the Assistant Charity Commissioner granted permission to register the property as the property of the public trust. The order was challenged before the Deputy Charity Commissioner who however confirmed the finding of the Assistant Charity Commissioner. The matter was taken up before the District Judge in an application under Section 72 of the Bombay Public Trusts Act, 1950 (hereinafter the ‘Act’) and a finding was returned holding the temple to be a public trust. An appeal to the High Court by the appellants failed, with the result that the findings of the Assistant Charity Commissioner declaring the temple property to be a public trust stood confirmed. Pursuant to the findings recorded by the authorities, the temple was registered as a public trust. A scheme for better management and administration of the temple came to be framed and the scheme was settled by the Joint Charity Commissioner, Aurangabad by his order dated 23-7-1985. After the framing of the scheme, the appellants moved the Joint Charity Commissioner, Aurangabad to stay the enforcement and operation of the scheme but failed. Subsequently, it appears, that in 1993, the appellants filed a suit in the Court of Civil Judge, Senior Division, Aurangabad for a declaration that Balaji Temple, Chelipura, Aurangabad is the personal and private temple of the appellants and the property belonging to the temple is not the property of the public trust. The appellants also sought a perpetua1/temporary injunction restraining the respondents not to disturb or interfere with their possession, enjoyment and ownership of the temple and its property. The injunction was refused by the civil court. The suit however is pending disposal. Finding that the appellants were causing hindrance in the implementation of the scheme framed by the Joint Charity Commissioner, the respondents filed Civil Suit No. 394 of 1993 in the Court of Civil Judge, Senior Division, Aurangabad against the appellants claiming the following reliefs:

“A. Suit of the plaintiffs may be decreed with costs with the following reliefs.

B. Defendants 1 and 2, their agents, or anybody claiming through them may be perpetually restrained by an order of injunction from interfering and obstructing the implementation of the scheme framed, settled and approved by Joint Charity Commissioner, Aurangabad on 23-7-1985 in respect of Trust Panchvati Shri Balaji Mandir [H. No. 1036 (old)/1-29-1 (new) situated at Chelipura, Aurangabad having Registration No. A-3241 (Au.)].

C. The defendants be restrained perpetually from prohibiting the plaintiffs, trustees and the Devotees of Lord Balaji from entering the suit temple i.e. Shri Panchvati Shri Balaji Mandir Chelipura, Aurangabad and offering prayers and performing festivals like Gokul Ashtami, Ganesh Chaturthi, Ram Navami, Holi etc.

D. Defendants 1 and 2 be directed to render the accounts of the income which they have received from the suit property/Trust since 1973 till the date of filing of the suit.

E. The mesne profits for the period of last 3 years and the future mesne profits be determined and awarded to the plaintiffs. The cost of the suit and such other just and equitable relief may be granted and oblige.”

3. The appellants filed an application before the trial court under Section 9-A of the Code of Civil Procedure and claimed that since the respondents (plaintiffs in the suit) had not obtained permission of the Charity Commissioner, as envisaged by Sections 50/51 of the Act for the institution of the civil suit, the suit was not maintainable. The learned Civil Judge rejected the application and the matter was carried to the High Court in a civil revision. The High Court directed the trial court to frame a preliminary issue in that regard and decide that issue before proceeding further in the case. Accordingly the following preliminary issue was framed:

“Whether defendant prove that this Court has no jurisdiction for want of permission under Sections 50 and 51 of Bombay Public Trust Act, 1950.”

4. The trial court held, vide its order dated 3-2-1994, that the suit was maintainable, without the permission of the Charity Commissioner and decided the preliminary issue against the appellants. A civil revision against the order of the trial court was dismissed by the High Court on 29-6-1994. Hence this appeal by special leave.

5. Learned counsel for the appellants has rested his case on clause (iv) of Section 50 of the Act to urge that without the permission of the Charity Commissioner, the suit filed by the respondents was not maintainable. Reliance is placed on clauses (e) and (p) of Section 50 of the Act to urge that since the reliefs claimed for in the suit filed by the respondents are covered by the said two clauses, the suit could not have been filed without obtaining the consent, in writing, of the Charity Commissioner as provided for in Section 51 of the Act. The argument, though attractive on the face of it, does not bear close scrutiny.

6. Clause (iv) of Section 50 of the Act provides as follows:

“50. Suit by or against or relating to public trusts or trustees or others.—In any case; —

* * *

(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 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 contentions 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:

* * *

(e) a direction for taking accounts and making certain enquiries;

* * *

(p) declaring or denying any right in favour of or against a public trust or trustee or trustees ....”

7. The suit filed by the respondents is not for any declaration or injunction in favour of or against the public trust. It is not even for seeking a declaration or injunction in favour of or against the trustee/trustees. The appellants are, in view of the orders of the authorities under the Act, not the beneficiaries either and therefore, clause (iv) has no application whatsoever to the suit filed by the respondents. Once it is found that clause (iv) of Section 50 (supra) is not attracted, the question of the nature of reliefs claimed for in the suit being covered by clauses (e) and (p) does not arise. Keeping in view the nature of the suit, in our opinion both the trial court and the High Court were right in holding that since the trust is a registered trust and the suit is filed to seek enforcement of the scheme as settled by the Joint Charity Commissioner, the suit is not covered by any of the sub-clauses of Section 50 of the Act and no prior written consent of the Charity Commissioner was necessary to maintain the suit. The appeal therefore fails and is dismissed. There shall be no order as to costs.