Mahomed Hassan Samru vs Peer Hazarath Diwanshah Dargah Trust & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2002 Supreme(Bom) 275

IN THE HIGH COURT OF BOMBAY
A.M. Khanwilkar, J.
Mahomed Hassan Samru .... Petitioner.
Versus
Peer Hazarath Diwanshah Dargah Trust others.... Respondents.
Writ Petition No. 5488 of 1991, decided on 16-3-2002.
Advocates appeared :
Niranjan Shimpi i/b. P.K. Dhakephalkar, for petitioner.
V.C. Ghosalkar, for respondents.

Headnote:Bombay Public Trust Act, 1950 - Sections 50 and 51 - Suit for eviction of lessee - Permission of Charity Commissioner for filing of suit - Necessity of - Held - Permission of Charity Commissioner not required to file a suit for declaration or injunction per se under Section 50(iv) - If relief specified under Section 50(a) also claimed only then permission will be necessary - Clause (q) of Section 50 cannot be used as residuary clause - Prior sanction of Charity Commissioner not required to file suit for declaration or injunction. - 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) thereof. To my mind, this is the twin requirement to attract the mandate of that pro- vision regarding obtaining prior permission of the Charity Commissioner.
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 consequently 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 clause 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 relief 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.

JUDGMENT - A.M. KHANWILKAR, J.:---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, develope, 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 ne

Click Here to Read the rest of this document