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2013 Supreme(Bom) 1780
HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
Dr. Pragji Savji Vaja & Others
Versus
Dr. Chhotalal Narsidas Parmar & Others
Trust Petition No. 2 of 2012 Along With Chamber Summons No. 567 of 2013
Decided on: 06-09-2013
For the Applicant:R.M. Bhagattjee alongwith Abhay Patki, Ms. Nisha Valani, Advocates.
For the Respondents:R3, R4 & R5, Ms. Mamta Sadh along with S.G. Lakhani, R6, D.J. Khambata, Advocate General with G.W. Mattos, A.G.P.
For the Intervener:V.A. Thorat, Sr. Adv. Along with Raj Patel i/by Gandhar Raikar, Advocates.
Headnote:Bombay Public Trust Act, 1950 - Section 36 - Sale of property of trust. - Held, for sale of property belonging to trust, no preference can be excluded to members of a particular community. On perusal of the judgments of this Court referred as aforesaid, Court is of the view that the property of the trust even if allowed to be sold cannot be allowed to be sold only to the member of a particular community. The property of the trust is for benefit of the trust and its beneficiaries. Trust has to receive the best available price according to the market value of the property. If the property is allowed to be sold by the trustees to a member of the community or to a particular purchase only, it would not fetch the true and correct price of the property which would be in Court‘s view detrimental to the interest of the trust and its beneficiaries. The paramount interest of the trust and beneficiaries of the trust has to be considered while permitting sale of the properties by the Charity Commissioner. If the amendment as proposed by the petitioners is allowed, it would give blanket authority and free hand to the trustees to sale the properties of the trust to the member of their own community who may not offer the best and competitive price for sale of such properties of the trust.
If any particular member of the community want to purchase the properties of the trust, he can participate in such sale independently by quoting the best offer alongwith other proposed purchasers. If an offer of such member of the community or the particular buyer is the highest and it is in the interest of the trust and the beneficiaries, charity commissioner would have to consider such proposal which shall be in the interest of trust and its beneficiaries. In Court‘s view, the proposed amendment for giving power to the trustees to permit the sale of the trust properties to the members of a particular community would not be in the interest of the trust and/or its beneficiaries. If the properties of the trust are allowed to be sold by the Charity Commissioner, at the best price offered by the proposed purchaser, such best price would be ultimately in the interest of the trust as well as beneficiaries. If by offering such property only to a particular member of their community, trust may not achieve the best price of sale of trust property which is meant for the benefit of trust and its members.
Bombay Public Trust Act, 1950 - Sections 36 and 50-A - Amendment in scheme of Trust by beneficiaries. - Held, application for amendment filed by beneficiaries seeking sale, exchange or long lease of trust property, can be considered only by Charity Commissioner. On perusal of the scheme sanctioned by this Court, it is revealed that the trust properties i.e. temple and Dharamshala of the said trust are situated at Walkeshwar and were meant to be used for the benefit of Gujarati Hindu Mochi community. It is the case of the beneficiaries that in view of the fact that more than 90% of the beneficiaries i.e. Gujarati Hindu Mochi community are residing in Malad, Borivali, Bhayander, Vasai and Virar, shifting of the trust property in and around Borivali and to undergo sale, purchase, long lease or development for the beneficiaries of the said Gujarati Hindu Mochi community who are residence of the suburbs would be more beneficial for their members. It is the case of the petitioners that the property at Walkeshwar does not fetch any income nor the beneficiaries have sufficient finance to develop the same and the property is also encumbered.
There is no bar under the scheme for selling the trust property situated at Walkeshwar and to acquire another property at any other place at Mumbai. Whether trust property is required to be sold or not and if sold, on what terms and conditions which would be beneficial for the members of the trust and/or beneficiaries or the trust itself, the same has to be decided by the Charity Commissioner while exercising power under Section 36 of the Bombay Public Trust Act, 1950. If the majority of the members of the trust have shifted to another locality, this fact also may be considered by the Charity Commissioner while considering sanction of the sale under Section 36 of the said Act.
Bombay Public Trust Act, 1950 - Section 50-A - Amendment in scheme of Trust. - Held, amendment, in scheme of Trust, seeking sale of trust property, amounting to substitution of scheme, not permissible. Question that now arises for consideration is that amendment proposed by the petitioners to the sanctioned scheme is substantial in nature and if allowed would be contrary to the object and purpose of the trust. On perusal of the sanctioned scheme, it is clear that this Court had referred to the Commissioner to frame a scheme for administration of the management of the temple and Dharamshala properties of the said trust and to submit names of five fit and proper persons for being appointed as trustees of the said charitable trust properties. On perusal of the sanctioned scheme, it is clear that the trust properties were for the benefit of the members of Gujarati Hindu Mochi community. It is also revealed that the scheme was sanctioned the regulation, administration and management of the temple properties, temple and Dharamshala situated at Walkeshwar comprised in the decreetal order dated 30th June, 1933. A.G.P. has urged that the temple and Dharamshala of the said trust situated at Walkeshwar for the benefit of the community was sanctioned by this Court while sanctioning the said scheme. Sale arid transaction of the property on which temple and Dharamshala is situated if allowed to be sold and shifted somewhere else, it would amount to substitution of the scheme and would amount to change of object and purpose for which the said scheme was sanctioned which is not permissible by an amendment application to the sanctioned scheme. On this issue, submission of Mr. ’B’, learned counsel appearing for the petitioners is that since trust was created for the purpose of acquiring its properties including temple and Dharamshala for the exclusive benefit of beneficiaries belonging to Gujarati Hindu Mochi community, sale of such property of the trust meant for benefit of a particular community also shall be permitted to be effected to the member of such community at the first instance and there would be no diversion and/or violation of the objects and purpose of the trust for which the trust was created and scheme was sanctioned by this Court. It is submitted that there is no change of basic structure of the scheme proposed to be amended by the petitioners in this petition and chamber summons.
Bombay Public Trust Act, 1950 - Sections 50-A and 52 - Civil Procedure Code, Sections 92 and 93 - Amendment in Trust’s scheme. - Held, settlement of a scheme by Court prior to enactment of Act, 1950, reserves a liberty for trustees to modify scheme and Court has jurisdiction to entertain application for amendment.
Bombay Public Trust Act, 1950 - Sections 2(10), 50-A and 50(j)(o) - Application for amendment in scheme of Trust. - Held, in absence any permission as required under Section 50(j)(o) of Act, amendment application filed by beneficiaries not maintainable. A.G.P. who represent the Charity Commissioner in this proceedings have opposed the petition on various grounds including maintainability of this petition. Without obtaining prior consent of the Charity Commissioner by the petitioners who claims to be beneficiaries and persons having interest could not have filed this proceedings for seeking amendment of the scheme already settled and more particularly in view of the fact that in the decree passed by this Court sanctioning scheme, no such liberty was reserved for beneficiaries or an outsider. In Court’s view, senior counsel, A.G.P. and counsel appearing for the trustee is right in their submission that a person claiming to be beneficiaries of the trust cannot apply for amendment of the scheme without obtaining sanction from charity commissioner before filing proceedings in this Court. The trustees have also disputed the existence of the resolution passed by the beneficiaries and their powers to pass such resolution.
It is not in dispute that some of the beneficiaries have already filed proceedings under Section 41(D) of the said Act before the Charity Commissioner for appropriate action against the proceeding for their suspension, removal and/or dismissal of trustee and such application is pending before the Charity Commissioner. Opposed by the trustees, this Court cannot allow beneficiaries to maintain such application for amendment. In Court’s view, any person having interest as defined under Section 2(10) have an independent right by seeking appropriate permission from Charity Commissioner to apply for modification and/or alteration of the scheme. Amendment to the scheme as proposed by the petitioners would be substantial in nature and would not be in the interest of trust or its beneficiaries and in view of the fact that the charity commissioner impleaded as party respondent to this proceedings and has addressed this Court on the maintainability of the petition also on the ground of the amendment being substantial and is not in interest of the trust and its beneficiary, Court does not propose to dismiss this petition on the ground that the petitioners ought to have obtained permission of the charity commissioner under Section 50 of the Bombay Public Trust Act before filing this petition. Court has therefore dealt with other larger issues raised by the respondents as to whether such amendment proposed by the petitioners to the scheme sanctioned by this Court shall be granted or not.
1. Petitioners who are claiming to be beneficiaries of Shree Gujarati Mochi Gnyati Navnat Trust registered with Charity Commissioner, under the provisions of Bombay Public Trust Act, 1950, by this trust petition seeks sanction of the amendment of the scheme which was sanctioned by this Court (hereinafter referred to as the said trust). In Chamber summons No.567 of 2013 filed by the applicants, who claims to be beneficiary of the said trust, seek amendment to the trust petition as per schedule appended to the said chamber summons, for deletion of the names of respondent nos. 1 and 2 and for holding of further annual general meeting to carry out further amendments and to appoint new trustees of the said trust. Applicant No. 1 in the Chamber summons is not party to the trust petition. Respondent Nos. 1 and 2 have expired during the pendency of the trust petition. Respondent nos. 3 to 5 are present trustees of the said trust. Respondent no. 6 is the Charity Commissioner of Mumbai.
2. The Petitioners and respondent No.1 to 5 all belong to Shree Gujarati Mochi Gnyati Navnat. The said trust is the owner and possessed of the property admeasuring about 725 sq. yards under Collector's No. 11384, New Survey No. 4/7261 having cadastral Survey No. 4 of Malbar Hill, Mumbai 400 006. In the year 1927, a suit was filed in this court (2281 of 1927) in which one Jivan Govind was the plaintiff and Harkar Govind was the defendant. The suit was filed inter alia praying for declaration that the suit properties referred to aforesaid belong to Gujarati Mochi community which are public charitable properties and applied for administration of the said charitable properties, appointment of the trustees and incidental reliefs. By a consent decretal order of Reference, this court referred the matter to the Commissioner of this Court to frame a Scheme or administration and management of the said charitable properties and to submit names of five fit and proper persons for being appointed as trustees of the said charitable properties under the said scheme. The Commissioner appointed by this court submitted a report. By decree dated 27/11/1934, this court framed a scheme submitted by the Commissioner for administration of the said charitable properties set out in the said decree and appointed three trustees. In the meeting of the said trust held on 18th December, 1938, said Jadhavji Jethabhai as a leading member of the said caste and one of the trustees and a managing Trustee of the said Dharmashala and temple declared that he has set apart a sum of Rs.5,001/- ( Rupees Five Thousand on one only) partly for the benefit of the said Dharmashala and partly for the benefit of the Mochi Navnyat and subject to the acceptance of the donations by the Navnyat held the amount jointly with his wife Ramabai as trustees to be utilized by them in erecting a house on land forming part of the compound of the said Dharmashala, that after paying municipal rates and taxes cut of the rents and profit of the property he would use net rents for the maintenance upkeep and repairs of the said Dharmashala and the maintenance of the worship of the deities installed in the temple standing on the land carried out of the funds. The relevant clauses of the said scheme sanctioned by this court which provides as under :
“5A. The Trustees shall stand possessed of the trust properties upon the following trusts :
a) The temple shall be opened to all Hindus, for the purpose of worship except Hindus of untouchable class.
b) The Dharmashala shall be kept opened for the purpose of the temporary rest houses for the members of the Gujrati Hindu Mochi community, provided that the trustees may at their direction and on such terms and conditions as they think fit, allow other Hindus except Hindus of the untouchable class to use the said Dharmashala as a temporary rest houses.
7. Whenever any trustee or trustees either original or substituted under this scheme shall die or be for six continuation
