Trusts and Societies - Determination of necessary parties - Sections 2(18) and 72(1) of Trust Act, 1950 - District Court reversed order of Lower Court, wherein Lower Court held that newly enrolled members of trust were necessary parties before District Court in proceedings under Section 72(1) of Act - Hence, this second Appeal - Whether new or old members of trust enrolled by both group were necessary parties before District Court in proceedings under Section 72(1) of Act and whether they were aggrieved persons - Held Sec. 2(18) of Act defines trustees that it is manager or trustees, who represent trust and its properties, and association of persons and trust property is vested in trustees and not in general body members - It was common knowledge that public trust had board of trustees to represent entire general body of trust - That apart trust, trustees or its manager to knowledge of public at large represent general body members of trust - However in present case about 850 members, there would be chaotic situation and they were also not aggrieved persons as claimed by them - Thus there was reason why all general body members were not required to be made party before Courts of law - Therefore none of Appellants would be said to be aggrieved persons, nor they were necessary parties to proceedings before District Court - Second Appeals dismissed.
Ratio Decidendi:
"General body members of trust are not required to be made party before Courts of law, when they are not necessary party to proceedings."1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 225 OF 2013
Shri Shakil Musa Patel,
Versus
1. Shri Dilipsing Pratapsing Patil,
Citation;2013(6)MhLj841 BOM
Heard. Admit. Taken up for final disposal with the consent
of the learned counsel for the rival parties.
FACTS :
2.
Waghur Shikshan Prasarak Mandal, Sakegaon, Dist.
Jalgaon is a public trust having registration No. F718 under the
provisions of the Bombay Public Trust Act (hereafter referred as
to the "Trust Act" for the sake of brevity) which runs a few
schools and a college. In all there were nine trustees in the
managing committee of the said trust, out of which Narayansing
Gulabsing Patil (hereinafter referred as to "Narayansing Patil"
for the sake of brevity) was the President who died on 15.08.2000,
while Mohammad Musa Patel was the Vice President (hereafter
referred as to "Musa Patel" for the sake of brevity). There was no
dispute amongst the trustees till August 1999, which is clear
from the fact that last undisputed change report amongst the
trustees bearing No. 240/1997 in which managing committee was
elected for five years i. e. up to 2002, was accepted without any
contest. However, in the year 1999 dispute arose. According to
Narayansing Patil, his rivals, Musa Patel, Anil Patil and others
ig
forcibly took away the record of the trust with them, about which
report was lodged to the police by Narayansing Patil. Thereafter,
the managing committee headed by Narayansing Patil expelled
Musa Patel and others for acts of misconduct as aforesaid and
filed a Change Report No. 430/1999 about their expulsion. That
was rejected on 15.03.2000.
3.
On 05.08.2000, Musa Patel filed an Application No.
1176/2000 before the Assistant Charity Commissioner (hereafter
referred as to the "A.C.C." for the sake of brevity) for direction to
Narayansing Patil to hold meetings and on 10.08.2000 A. C. C.
passed interim order authorizing Musa Patel to call monthly
meetings. Narayansing Patil died on 15.08.2000. The said
application was disposed of on 31.08.2000 without any further
orders. Nephew of Narayansing Patil i. e. Deelipsing Patil filed
Change Report No. 1288/2000 saying that he was elected on
25.08.200 as President of the trust. Deelipsing Patil also filed
Appeal No. 15/2002 against the order of rejection of Change
Report No. 430/1999 about removal of Musa Patel and others.
Shakil S/o Musa Patel filed Change Report No. 1290/2000 stating
that he was elected on 30.08.2000 as President in place of
Narayansing Patil. On 01.11.2001 change report filed by
Deelipsing Patil was accepted, but change report filed by Shakil
ig
Patel was rejected by A. C .C. about claim for the post of
President. On 11.11.2001, Deelipsing Patil enrolled 338 new
members and on 12.11.2001 A. C. C. stayed his own order dated
01.11.2001. Shakil Musa Patel also enrolled 342 new members.
The original old members of the trust were 80. Appeal No.
15/2002 filed by Deelipsing Patil was rejected by Joint Charity
Commissioner (hereinafter referred as to the "Jt. C. C." for the
sake of brevity) on 30.05.2002 and hence Deelipsing Patil filed M.
C. A. No. 164/2002 in District Court and District Court dismissed
it on 24.01.2013 against which Second Appeal No. 294/2013 is
filed in this Court by Deelipsing Patil.
4.
Shakil Musa Patel filed two appeals before the Jt. C. C. i. e.
Appeal No. 86/2001 and Appeal No. 87/2001 against the orders in
Change Report No. 1288/2000 and Change Report No. 1290/2000
i. e. against acceptance of Deelipsing Patil as President and
rejection of Shakil Patel as President. The Jt. C. C. allowed
appeal preferred by Shakil Musa Patel i. e. Appeal No. 86/2001
and rejected change report of Deelipsing as President, but
dismissed Appeal No. 87/2001 confirming the rejection of Shakil
Musa Patel as President. Thus claim to the post of President
made by both Deelipsing and Shakil stood rejected in these
appeals. Deelipsing Patil filed M. C. A. No. 98/2002 before the
ig
District Court being aggrieved by the decision in Appeal No.
86/2001 and Appeal No. 87/2001, while Shakil Patel filed M. C. A.
No. 102/2002 being aggrieved by confirmation of rejection of his
change report as President.
A strange development took place after filing of M. C. A.
No. 98/2002 and M. C. A. No. 102/2002, in that, Shakil Musa
Patel filed application purported to be U/Sec. 41A of the Trust
Act on 19.04.2002 before the Jt. C. C. i. e. after disposal of Appeal
No. 86/2001 and Appeal No. 87/2001 for directions to permit him
to hold elections in terms of directions in the said appeal vide
decision dated 28.03.2002 in which adhoc committee was
appointed, though the said decision was put to challenge in M. C.
A. No. 98/2002 and M. C. A. No. 102/2002. The Jt. C. C.
entertained that application vide Application No. 15/2002 and
asked both the parties i. e. the group led by Deelipsing Patil and
another group led by Shakil Musa Patel to submit their
respective list of members of the trust. Deelipsing submitted list
of 418 members and Shakil Musa Patel submitted list of 422
members. The Jt. C. C. then made order on 30.07.2002 and
directed the A. C. C. to verify both the lists of members. The A.
C. C. verified both the lists and submitted his report to Jt. C. C.
on 02.09.2002 and thereafter Jt. C. C. on 07.05.2003 approved the
ig
list of 422 members of Shakil Patel's list, but did not approve the
list of 418 members of Deelipsing and thus directed holding of
elections. Attempts made by Deelipsing to obtain stay on holding
elections from Courts did not succeed. On 07.07.2003 election
was held in which Deelipsing Patil was defeated and Shakil Patel
was elected as President. All this was done during the pendency
of M. C. A. No. 98/2002 and M. C. A. No. 102/2002 before the
District Court. Shakil Musa Patel then filed Change Report No.
586/2002 of his election as President, while Deelipsing Patil
challenged the order dated 07.05.2003 passed by Jt. C. C.
rejecting his members by filing M. C. A. No. 119/2003. Before the
said election of 07.05.2003, in M. C. A. No. 119/2003, the District
Court did not grant stay to Deelipsing, nor this Court in Writ
Petition No. 2098/2003, but only Rule was issued. Election result
was declared and that is how Shakil Musa Patel was elected as
President and he filed his Change Report No. 586/2003, which
has been stayed by this Court in the said writ petition. The
District Court dismissed both M.C.A. No. 98/2002 and M. C. A.
No. 102/2002 on 24.01.2013. Hence Second Appeal No. 293/2013
is against M. C. A. No. 98/2002 filed by Deelipsing Patil and
Second Appeal No. 418/2013 against M. C. A. No. 102/2002 filed
Again after five years, Shakil Musa Patel held election and
ig
5.
by Shakil Musa Patel.
was elected, while Deelipsing Patil was defeated on 06.07.2008.
Shakil filed Change Report No. 769/2008 in respect of 2008
election. It has also been stayed by this Court in the same writ
petition. M. C. A. No. 164/2002 filed by Deelipsing Patil about
expulsion of Musa Patel and others was dismissed
simultaneously by judgment of District Court dated 24.01.2013.
Hence Second Appeal No. 294/2013 is filed by Deelipsing.
6.
While delivering common judgment, the District Court also
decided M. C. A. No. 119/2003 and set aside the said order dated
07.05.2002 and rejected all newly enrolled members over and
above 80 original members made by both Deelipsing and Shakil
Musa Patel. Therefore, Shakil Patel has filed Second Appeal No.
225/2013, and Deelipsing Patil has filed Second Appeal No.
293/2013.
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7.
SA 225.13
8
Though the facts have been narrated above, a chart is
prepared showing factual position in nutshell, which is part and
parcel of this judgment and the same is attached to this
judgment.
In support of the appeals preferred by Shakil Musa Patel
8.
ig
and his group, Mr. R. N. Dhorde, the learned senior advocate
with Shri V. R. Dhorde, the learned counsel for the appellant
made the following submission :
The Jt. C. C. in Application No. 15/2002 made the order
i)
U/Sec. 41A of the Trust Act and the District Court entertained
the application against the Order dated 07.05.2002 U/Sec. 72(1)
of the Trust Act. That is wholly without jurisdiction, because no
application U/Sec. 72(1) of the Trust Act is provided against the
order U/Sec. 41A before the District Court. Therefore, the
impugned judgment and order made by the District Court setting
aside the order dated 07.05.2003 is without jurisdiction and is
nullity.
ii)
Though the point about lack of jurisdiction of the District
Court was not raised before the District Court as found by this
Court during the hearing, the same being one of jurisdiction
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9
these proceedings of second appeals.
iii)
The law is well settled that a judgment or order without
jurisdiction must be held to be a nullity.
There was no challenge raised by Deelipsing Patil to the
ig
iv)
going to the root of the matter can certainly be adjudicated in
orders dated 30.06.2002 and 02.09.2002 passed by Jt. C. C. in
Application No. 15/2002, so also the report made by the A. C. C.
about the validity of enrollment of members by group led by
Shakil Musa Patel and rejection of enrollment of membership by
Deelipsing and in the absence of any challenge, the District
Court could not have set aside the order dated 07.05.2003 made
by the Jt. C. C.
v)
Perusal of the judgment and order made by the District
Court clearly shows that the learned Judge has hardly applied
his mind to the facts of the case, but applied short cut for
disposing of all the applications before him. He committed a
factual error in recording in his judgment that adhoc committee
of fit persons appointed under order dated 28.03.2002 enrolled
the new members which power the said committee did not
possess and, therefore, the membership of all the members was
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10
wrong and illegal. As a matter of fact, enrollment of members by
both sides or the group led of Deelipsing and Shakil Musa Patel
was made two years before the formation of adhoc committee i.
e. in the year 2000. This is a serious error on facts and,
therefore, this Court should make a remand order for rehearing
vi)
ig
by the District Court.
On merits about the enrollment of the new members by
group led by Shakil Musa Patel, he argued inviting my attention
to the detailed orders dated 30.07.2002 and 02.09.2002 made by
Jt. C. C. and the A. C. C. in the matter of verification of list of
members. He also invited my attention to the order dated
07.05.2003 that was impugned before the District Court.
According to Mr. Dhorde, the learned senior advocate, there are
sound reasons recorded by both the authorities for holding the
new members enrolled by Shakil Musa Patel's group as valid and
legal members, but then those reasons have been overlooked by
the learned District Court who laboured under a factual error.
According to him, the members newly enrolled by group led by
Deelipsing Patil were rightly rejected for the reasons given in
those orders by the A. C. C. and the Jt. C. C. Therefore, there was
no reason to reject the membership of the newly enrolled
members by Shakil Musa Patel. He also argued that based on
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SA 225.13
11
the order dated 07.05.2003 and the membership of new persons,
two elections i. e. one in the year 2003 and the other in the year
2008 have been held and it would be wholly improper and illegal
to set back the clock.
Per contra, Mr. V. J. Dixit, the learned senior advocate with
09.
ig
Mr. L. V. Sangeet, the learned counsel for the respondent, made
a)
the following submissions.
The learned Jt. C. C. after having disposed of Appeal No.
86/2001 and Appeal No. 87/2001 acted without jurisdiction with
impropriety and in violation of judicial discipline, in that, he
entertained Application No. 15/2002 on 19.04.2002 U/Sec. 41A of
the Trust Act at the instance of Shakil Musa Patel fully knowing
that his judgment and order dated 28.03.2002 was the subject
matter of challenge before the District Court U/Sec. 72(1) of the
Trust Act arising out of substantive proceedings between the
parties. The Jt. C. C. had in toto rejected newly enrolled
members of both the rival groups when he decided Appeal Nos.
86/2001 and 87/2001 on 28.03.2002. But, he contrary to his own
findings in Appeal No. 86/2001 and 87/2001, accepted the new
enrolled members of Shakil Musa Patel group and rejected that
of Deelipsing Patil. Therefore, the Jt. C. C. acted with perversity.
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SA 225.13
12
Therefore, the District Court was fully justified in reversing the
orders made by the Jt. C. C. The Jt. C. C. could not have at all
entertained application U/Sec. 41A of the Trust Act after having
disposed of the main and substantive matters between the
The order dated 07.05.2013 in Application No. 15/2002
ig
b)
parties on 28.03.2002.
dated 30.07.2002, 02.09.2002 were not required to be challenged
as contended because those orders did not in law make any
adjudication and at any rate all those orders are without
jurisdiction in the sense that the Jt. C. C. or the A. C. C. cannot
issue directions to verify list of members or approve the list of
members either accept or reject the list of members which aspect
is beyond the ambit and scope of Sec. 41A of the Trust Act and,
therefore, the District Court rightly interfered with the said
order dated 07.05.2003.
c)
Mr. Dixit, the learned senior advocate, then contended that
the new members made by the group led by Deelipsing Patil
could not have been rejected and there are no sound reasons
appearing on record. Hence no interference is required in the
appeals preferred by Shakil Musa Patel.
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13
CONSIDERATION :
I have heard learned counsel for rival parties. I have gone
10.
through the entire record and proceedings. I have gone through
the judgments and orders recorded by all the Courts below. I
have given opportunity to the counsel for rival parties before me
to address on the issues also on facts, since I made it clear that I
ig
was inclined to exercise powers U/Sec. 103 of the C. P. C..
Accordingly Mr. Dhorde, and Mr. Shah, the learned senior
advocate made their submission. Upon hearing the counsel for
the parties, I frame the following substantial questions of law :
Substantial Questions of Law :
i)
Whether the Jt. C. C. Nashik having
decided the substantive proceedings about dispute
amongst the trustees in Appeal Nos. 86/2001 and
87/2001 on 28.03.2002 by common judgment
categorically negativating the claim for
enrollment of new members by both the rival
groups; and said common judgment being under
challenge in applications U/Sec. 72(1) of the Trust
Act before the District Court; within his full
knowledge; acted with illegality and judicial
impropriety in passing order dated 07.05.2003 in
Application NO. 15/2002 U/Sec. 41A of the Trust
Act and holding diametrically opposite the issue
about newly enrolled members by approving
members of Shakil Musa Patel's group and
rejecting members of Deelipsing Patil's group?
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SA 225.13
14
ii)
Whether the order dated 07.05.2003 in
Application No. 15/2003 U/Sec. 41A of the Trust
Act and the interlocutory orders therein dated
30.07.2002 and 02.09.2002 have any binding effect
of adjudication of disputed questions about the
new enrollment of members by both the rival
groups?
ig
iii) In the facts and circumstances of the case of
the lis, in the present case, whether the District
Court acted without jurisdiction in entertaining
application U/Sec. 72(1) of the Trust Act along
with other applications arising out of common
judgment dated 28.03.2002 in Appeal No. 86/2001
and 87/2001 passed by the Jt. C. C. Nashik and by
setting aside the said order dated 07.05.2003?
iv)
Whether merely because the District Court
committed a factual error on one aspect about
newly enrolled members, this Court should remit
the matters to the District Court or whether this
Court in exercise of power U/Sec. 103 of the Code
of Civil Procedure should adjudicate the
controversy even on facts?
v)
Which is the forum in the scheme of the
Trust Act 1950 for decision of the issue about the
legality, validity and correctness about the
enrollment of members and under which
provision?
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SA 225.13
15
ANSWERS :
Yes.
ii) No.
iii) No.
iv) Remand is not necessary, since, this Court
invokes powers U/Sec. 103 of the C. P. C.
v) The Deputy Charity Commissioner/
Assistant Charity Commissioner U/Sec. 22
of the Trust Act only.
ig
i)
Answer to Question No. 1 :
11.
It is not in dispute that the Jt. C. C. Nashik decided Appeal
No. 86/2001 and Appeal No. 87/2001 filed by rival parties by
common judgment dated 28.03.2002 and categorically held that
the enrollment of members by both the rival groups of Shakil
Musa Patel and Deelipsing Patil was illegal and, therefore, he
did not accept the newly enrolled members as legal and valid.
The rival parties filed application U/Sec. 72(1) of the Trust Act
against the said judgment and order dated 28.03.2002 by filing
Application No. 98/2002, M. C. A. No. 102/2002 and M. C. A. No.
164/2002 well before 19.04.2002 on which date the group led by
S. M. Patel filed an application before the Jt. C. C. vide
Application No. 15/2002 U/Sec. 41A of the Trust Act for
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SA 225.13
16
permission to hold the election to the managing committee of the
trust. That application was registered and entertained by him
and he proceeded to pass the orders on 30.07.2002, 02.09.2002
asking the A. C. C. to verify the claim for membership of newly
enrolled members by both the groups. He then received the
report from A. C. C. and approved the list of newly enrolled
ig
members by Shakil Musa Patel and rejected the list of group led
by Deelipsing Patil and passed the order dated 07.05.2003 to that
effect with full knowledge about the pendency of applications
against his main judgment dated 28.03.2002 before the District
Court. He thus took a diametrically opposite view about the
enrollment of members in the summery proceedings U/Sec. 41A
of the Trust Act as against the substantive proceeding in Appeal
No. 86/2001 and Appeal No. 87/2001. In my opinion, the Jt. C. C.
clearly acted with illegality and judicial impropriety in doing so.
Hence I answer the question No. 1 in affirmative.
12.
Answer to Question Nos. 2 and 3 :
These two questions mainly are related to the nature of
power U/Sec. 41A of the Trust Act. In the case of Vanmala
Manoharrao Kamdi & others Vs. Deputy Charity Commissioner
and others reported in 2012(6) Bom.C.R. 635 the Division Bench
of this Court, ("Per A. B. Chaudhari, J.") about the scope and
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SA 225.13
17
ambit of Sec. 41A of the Trust Act held in para Nos. 31, 32, 34, 35
and 39 as under :
"31. It is thus clear upon adopting the settled
ig
principles in interpreting statute that section 41A
of the B.P.T. Act, 1950 gives ancillary or additional
powers to the Charity Commissioner to suppress the
apprehended mischief to the property and income of
the Trust and also in the administration of the
Trust. Such a power also exists on judicial side in
section 41E of the B.P.T. Act, 1950. But this power
under section 41A of the B.P.T. Act, 1950 has been
given to him to act in case doing of anything which
is about to be done or is being done is causing or is
likely to cause injury or annoyance or is against
public interest or the interest of the object and
purpose of the Trust or which may lead to breach of
peace. He can thus act in emergency. In such a
eventuality, and the satisfaction being subjective
satisfaction of the authority, the hearing before
making any order may not be possible in each case.
We further find that the term "from time to time"
has been deliberately utilized in section 41A of the
B.P.T. Act, 1950, which manifestly suggests that the
Charity Commissioner can issue directions number
of times, may even change, modify, amend or annul
such directions as per the exigencies. Such orders
can in no event partake the character of quasi
judicial or judicial order. Then no appeal or
revision is provided against such order/s. That is
why we think that the nature of provision is
'administrative'. The submission made by Senior
Advocate Shri Manohar about explanation to Rule
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18
32.
ig
18 in Chapter XVII of the Bombay High Court
Appellate Side Rules, 1960, does not impress us.
The reason is Charity Commissioner when makes a
direction under section 41A of the B.P.T. Act, 1950,
he does not act as either judicial or quasi judicial
authority. Secondly, while acting under section 41
A of the B.P.T. Act, 1950, he does not make any
'order' but issues direction/s. There is a deliberate
absence of the word 'order in section 41A of the
B.P.T. Act, 1950.
There is one more reason which we discuss
further for saying so. Section 41A of the B.P.T.
Act, 1950 opens with the words "Subject to the other
provisions of this Act". The term "subject to" has
been defined in Black's Law Dictionary as
"subservient, inferior, obedient to, governed or
affected by. In the case of (Province of Madress
represented by the Collector of Salem Vs. K. R. C. S.
Balkrishna Chetty and Sons, a registered firm and
others), reported in A.I.R. 1956 Madras 377, it was
held as "conditional upon". Now looking to the
opening words of section 41A of the B.P.T. Act,
1950, we find that any action or order made
thereunder must yield pro tanto (to such an extent)
to any orders made under the other provisions of the
Act. We have already held that the functions
performed by the Charity Commissioner are
multiple viz. administrative, judicial quasi judicial,
as parens patriae and even as a litigant. We
instead of making further analysis would like to
make a propitious choice of the following apt
observations from the Constitution Bench judgment
of the Apex Court in the case of (Jaswant Sugar
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19
Mills Ltd. Meerut Vs. Lakshmi Chand and others)
reported in A.I.R. 1963 S.C. 677 (para 11).
ig
"11. ....Often the line of distinction
between decisions judicial and
administrative is thin: but the principles
for ascertaining the true character of the
decisions are wellsettled. A judicial
decision is not always the act of a judge or
a tribunal invested with power to
determine questions of law or fact: it
must however be the act of a body or
authority invested by law with authority
to determine questions or disputes
affecting the rights of citizens and under
a duty to act judicially. A judicial
decision always postulates the existence
of a duty laid upon the authority to act
judicially. Administrative authorities are
often invested with authority or power to
determine questions, which affect the
rights of citizens. The authority may
have to invite objections to the course of
action proposed by him, he may be under
a duty to hear the objectors, and his
decision may seriously affect the rights of
citizens but unless in arriving at his
decision he is required to act judicially,
his decision will be executive or
administrative. Legal authority to
determine questions affecting the rights
of citizens, does not make the
determination judicia: it is duty to act
judicially which invests it with that
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20
34.
character...."
The reason for making this provision subject
to other provisions of the Act is apparent and the
intention of the Legislature is manifest not to allow
any act or direction under section 41A of the B.P.T.
Act, 1950 to affect the rights of any party.
We, thus, hold that power exercised by the
35.
ig
Charity Commissioner is administrative in nature
and the Charity Commissioner does not act as
judicial or quasi judicial authority under Section
41A of the B. P. T. Act, 1950, and thus answer
question Nos. 1 and 2 accordingly."
39.
........................... This section needs to be
construed as a substantive provision inserted with
definite intention of filling in the vacuum
recognized by State Legislature as perceived from
Scheme of Bombay Public Trust Act, which also
derives support from Statement of Object and
Reasons. "Person connected to the trust" is
wider than "interested person". Even a person
who accidentally comes in possession of movable
property of public trust is amenable to directions
under section 41A. These directions may have
come bearing on right to hold or enjoy the property
or post, but then they are issued to protect a more
coveted and pious purpose i. e. charity itself.
Between interest of an individual and an interest of
Trust/Charity, precedence is given to later and
former is made to suffer for the time being who, if
aggrieved, has an option to have such direction
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21
ig
varied under relevant sections and to obey the
directions till then. There is no challenge before us
to validity of section 41A in any manner.
Legislature has found it expedient to invest Charity
Commissioner with certain powers of Civil Court
but then has, at the same time, kept powers given to
Court intact. It therefore has not substituted
'Court' by 'Charity Commissioner'. When certain
directions issued under other sections may be quasi
judicial in nature, directions under section 41A of
same nature or more drastic, can be viewed as not
quasi judicial ? Answer is obviously "yes", because
under section 41A, directions of various nature can
be issued from time to time in order to preserve or
protect charity/Trust. Section 41A is obviously
subject to sections dealing with courts. Hence,
directions envisaged under section 41A are same
nature as can be expected from a Court but then of
provisional nature to last till Court or competent
Forum is approached and it, either continues,
cancels or modifies the same. The Court/competent
Forum can be approached in the mode and manner
envisaged under Bombay Public Trust Act for such
purpose. Investment of such powers with Charity
Commissioner, use of words like "subject to other
provisions of this Act", "from time to time" and
"finds" or then not defining/limiting the scope or
nature of directions to be issued to get over the
mischief's contemplated in which the directions can
be issued and permitting the "officer" to issue such
wide range of directives all show that a guardian or
watchdog has been given those powers to enable
him to function more efficiently. Under section 41
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SA 225.13
22
A, interest of Trust is supreme and Trustees or
person connected, are not seen as relevant at all, as
immediate aim is to secure the Trust or Charity.
Bombay Public Trust Act does not envisage any "lis"
between Trust interest or need to issue such
directions and the person to whom the direction is
issued, at least for purposes of section 41A. Once
need to issue such directions is felt, section 41A
permits directions on matters regulated by even
other sections due to words "subject to other
It is thus clear from the legal position set out by us in the
13.
ig
provisions of this Act".
aforesaid paragraphs that any order U/Sec. 41A of the Trust Act
is subject to the other provisions of the Act including the orders
made by the higher Courts or authorities as well. These orders
are administrative in the nature and did not have any
adjudicatory effect or binding nature. The orders U/Sec. 41A are
required to be made in emergent or other situations of various
types discussed in the said Division Bench judgment.
14.
Coming back to the facts of the instant case, I find that the
substantive dispute amongst the parties was disposed of by the
Jt. C. C. in Appeal Nos. 86/2001 and Appeal No. 87/2001 against
which applications U/Sec. 72(1) of the Trust Act were pending
before the District Court. Any direction U/Sec. 41A of the Trust
Act in relation to the dispute that was pending before the District
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SA 225.13
23
Court as aforesaid could be sought, if at all necessary, from the
District Court. In other words, it was only the District Court
which was the proper and legal forum to issue any directions
U/Sec. 41A, since it was in seisin of main and substantive
matters before it. The Jt. C. C. having disposed of the appeals
could not have at all touched the issue arising in the matters
ig
pending before the District Court by taking in direct recourse to
Sec. 41A of the Trust Act. The order dated 07.05.2003 made by
the Jt. C. C. was in fact as a sequel to his own decision dated
28.03.2002 in the two Appeal Nos. 86/2001 and Appeal No.
87/2001. But since applications U/Sec. 72(1) of the Trust Act in
the said matters were pending before the District Court, he acted
with illegality and judicial impropriety. The said order dated
07.05.2003, in fact was an integral part of the basic dispute or in
the nature of sequel to the basic dispute which was decided by
the Jt. C. C. Therefore, the District Court while examining the
merits of common judgment and order dated 28.03.2002 in
Appeal Nos. 86/2001 and 87/2001 was obviously entitled to test
the validity of said order dated 07.05.2003, since that was U/Sec.
41A of the Trust Act and was subject to the further orders by the
competent Court namely the District Court herein. In terms of
the ratio of the Division Bench judgment cited supra, the said
order dated 07.05.2003 must yield to the ultimate adjudication by
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SA 225.13
24
the District Court in the applications pending before him, which
he decided by his impugned judgment dated 24.01.2013. It is
true that U/Sec. 72(1) of the Act no application before the District
Court is provided against order U/Sec. 41A of the Trust Act. But
then as per legal position set out by the Division Bench, such an
order U/Sec. 41A merges into the judgment and order in the
ig
substantive proceedings. Thus the orders dated 30.07.2002,
02.09.2002 and final order dated 07.05.2003 in Application No.
15/2002 made by Jt. C. C. accepting new membership of 418
members by Shakil Musa Patel and rejecting new membership of
422 members by Deelipsing would and must merge into the
judgment and order dated 24.01.2013 made in the substantive
proceedings by the District Court. The said order dated
07.05.2003 does not have any independent existence in the same
subject matter decided by the District Court. Therefore, even if
the said order dated 07.05.2003 had not been put to challenge
alike the Application No. 119/2003, the District Court was
entitled to bring such an order in conformity with the
substantive adjudication upon taking cognizance of such an order
like the one dated 07.05.2003. Nay even the parties and the
Courts would be entitled to ignore the entire or the part of such
order which is in conflict with the substantive adjudication of the
dispute by the same or the higher Courts in other proceedings
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SA 225.13
25
also. Hence for the above reasons ultimate decision to set aside
the order dated 07.05.2003 though in Application NO. 119/2003
purported to be U/Sec. 72(1) of the Trust Act must be held to be
legal, correct and proper. I answer question No. 2 in the
I have carefully considered the submissions made by the
ig
15.
negative.
learned counsel for rival parties with reference to their prayer for
remanding all the matters to the District Court, in view of the
factual error made by the District Court. It is true that, in his
judgment the District Court has made a wrong statement of fact
that, the adhoc committee had made enrollment of the members.
It is a fact that, both the rival groups claimed that new members
were enrolled in the year 2000, while the adhoc committee of fit
persons came into existence under order dated 28.03.2002 i. e.
after two years. The question is whether this Court should
straightway remand the matter to the District Court for re
hearing and rewriting the judgment. My answer is no, because,
the litigation started in the year 1999 and there is no possibility
of the end in the sight. The institutions run by the trust and the
beneficiaries and the students obviously are put to loss of the
benefits, they are entitled to derive due to the dispute. In my
opinion, therefore, this is fit case to exercise powers U/Sec. 103 of
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SA 225.13
26
the Code of Civil Procedure to find out and set right the correct
16.
factual position.
With the assistance of learned counsel for the parties and
the staff, I have perused the record in relation to the membership
that was produced before the lower Courts. The District Court
ig
has recorded a finding that there was no legal and valid
managing committee to enroll new members after the death of
Narayanshig on 15.08.2000. The general body then consisted of
only 80 members, but new enrollment of members was never
made by general body. On the contrary, both the rival groups
who did not have any legal stand went on making new members.
In addition to the reasons recorded by the Courts below, I
proceed to add reasons. It is seen and even to my query to the
learned counsel for rival parties that not a single reason
muchless justifiable is anywhere on record to show as to why a
trust running only two or three schools suddenly required total
membership of over 680 new members by both the rival groups.
Membership to a public trust unlike a cooperative society is not
a "open" membership. As has been repeatedly held by the Apex
Court, it is in the nature of agreement or contract between the
trust and the members and purely for service to charitable trust
and its institutions. It is further seen that, in a sudden eruption,
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SA 225.13
27
after the death of Narayansingh in a very short period of a few
days, both the rival groups have enrolled new members each
around 340. In the absence of any justifiable reason for doing so,
it is not possible to countenance such a move on the part of rival
groups. That apart, it clearly appears to me that in order to gain
complete control over the trust, both Shakil Musa Patel and
ig
Deelipsing Patil made almost equal members on their own. Can
this be termed as the service to a charitable trust. In my humble
opinion, 'no'. The trust already has 80 old members which figure
itself is on a pretty higher side. It is further seen from the record
that, no public advertisement was published inviting
applications for membership of the trust, if at all these two
groups really wanted to have large number of members in the
trust for whatever reason. The trust is a public trust and not a
private affair of both the rival groups. They cannot be allowed to
deal with the affairs of the trust with such a perversity and
political goal. It is due to this, the trust has fallen into litigation
and that is the reason why I have exercised power U/Sec. 103 of
the C. P. C.
17.
Fairness demanded that if the trust wanted to have large
number of members, a public advertisement in leading news
papers should have been published inviting applications. That
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SA 225.13
28
was not done. That being so, the core issue about the
membership of the new persons must be answered by holding
that new enrollment of members by both the rival groups headed
by Shakil Musa Patel and Deelipsing Patil, over and above
original 80 members is completely illegal. This being the main
issue for consideration for the prayer for remand, I answer that
ig
remand to the District Court is not warranted. Hence I answer
18.
question No. 4 accordingly.
As discussed above, the Jt. C. C. in Appeal No. 86/2001 and
Appeal No. 87/2001 held that, new membership by both the rival
groups was illegal. But then in Application NO. 15/2002 U/Sec.
41A, he held that the membership of the newly enrolled members
Deelipsing Patil's groups was invalid and illegal. The question
that arises for consideration is, which is the proper forum for
decision of such issue. Sec. 22 of the Trust Act reads thus :
by Shakil Musa Patel's group was legal and valid and that of
THE BOMBAY PUBLIC TRUST ACT 1950
1. ..........
2. ..........
22. Change :
(1)
Where any change occurs in any of the entries
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SA 225.13
29
ig
recorded in the register kept under section 17, the
trustee shall, within 90 days from the date of the
occurrence of such change, or where any change is
desired in such entries in the interest of the
administration of such public trust, report such
change or proposed change to the Deputy or
Assistant Charity Commissioner in charge of the
Public Trusts Registration Office where the register
is kept. Such report shall be made in the prescribed
form.
1A) Where the change to be reported under
subsection (1) relates to any immovable property,
the trustee shall, along with the report, furnish a
memorandum in the prescribed form containing the
particulars (including the name and description of,
the public trust) relating to any change in the
immovable property of such public
trust, for
forwarding it to the SubRegistrar referred to in sub
section (7) of Section 18.
Such memorandum shall be signed and
verified in the prescribed manner by the trustee or
his agent specially authorized by him in this behalf.
(2)
For the purpose of verifying the
correctness of the entries in the register kept
under section 17 or ascertaining whether any
change has occurred in any of the particulars
recorded in the register, the Deputy or Assistant
Charity Commissioner may hold an inquiry in
the prescribed manner.
(3)
If the
Deputy
or
Assistant
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SA 225.13
30
ig
Charity Commissioner, as the case may be, after
receiving a report under subsection (1) and
holding an inquiry, if necessary, under subsection
(2), or merely after holding an inquiry under the
said subsection (2), is satisfied that a change
has occurred in any of the entries recorded in the
register kept under section 17 in regard
to a particular public trust, or that the
trust should be removed from the register
by reason of the change, resulting in
both the office of the administration of the trust
and the whole of the trust property ceasing to
be situated in the State, he shall record a
finding with the reasons therefore to that
effect and if he is not so satisfied he shall record a
finding with reasons therefore accordingly. Any
such finding shall be appealable to the Charity
Commissioner. The Deputy or Assistant Charity
Commissioner shall amend or delete the
entries in the said register in accordance with the
finding which requires an amendment or
deletion of entries and if appeals or
applications were made against such finding,
in accordance with the final decision of the
competent authority provided by this Act. The
amendments in the entries so made subject
to any further amendment on occurrence of a
change or any cancellation of entries, shall
be final and conclusive.
(4)
Whenever
an
entry
is amended or the trust is removed, from
the register under subsection (3), the Deputy or
Assistant Charity Commissioner, as the case
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SA 225.13
31
The aforesaid provision of Sec. 22 of the Trust Act is in the
ig
19.
may be, shall forward the memorandum furnished
to him under subsection (1A), after certifying
the amended entry or the removal of the trust from
the register, to the subregister referred to in sub
section (7) or section 18 for the purpose of filing in
Book No. I under section 18 of the Indian
Registration Act,1908, in its application
to
the State of Maharashtra.
nature of adjudication of change report in respect of various
changes which occur in the affairs of the trust and functioning of
its managing committee. The jurisdiction of the Civil Court is
barred by the provisions of the Trust Act. The competent forum
to decide the integral and ancillary issue of membership under
said special law namely the Trust Act 1950 must, therefore, be
held to be the Deputy/Assistant Charity Commissioner, who
conducts proceedings U/Sec. 22 of the Trust Act. In the instant
case, I have already confirmed the finding recorded by the
District Court in his impugned judgment dated 24.01.2013 that
the enrollment of new membership by both the groups is illegal
and that was obviously from the proceedings that emanated from
the proceedings U/Sec. 22 in respect of change reports of the
trust and hence I answer question Nos. 5 accordingly.
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20.
SA 225.13
32
Having thus disposed of the contentious issues as above,
the next course of action will have to be decided for better
administration of the Trust. There is no dispute about the legal
and valid membership of the 80 members of the general body of
the trust. It cannot be forgotten that it is the prerogative of the
general body of the trust which is supreme to decide whether
ig
enrollment of new members is essential and if, yes to what extent
and with what eligibility terms and conditions. Since, now the
elections have become due this year, election to elect the
managing committee/Board of Trustees also will have to be held.
In my opinion, looking to the nature of dispute between warring
groups, the job to do the needful ought to be given to the office of
the Assistant Charity Commissioner, Jalgaon with suitable
21.
In the result, I make the following order.
O R D E R
directions, which I do hereafter.
i)
Second Appeal No. 225/2013 is dismissed. No order as to
costs.
ii)
Assistant Charity Commissioner, Jalgaon or his authorized
officer shall take charge of the Waghur Shikshan Prasarak
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SA 225.13
33
Mandal, Sakegaon, Dist. Jalgaon and its institutions after 26th
August, but before 31st August, 2013, if necessary with the help
of police. He shall have powers only to perform day today work of
trust and its institutions and nothing more.
iii)
Assistant Charity Commissioner, Jalgaon or his authorized
officer shall convene a general body meeting of the Trust on or
ig
before 20th September, 2013 inviting original 80 members only
and decide by majority, whether new enrollment of members to
the trust is required, and if yes, on what terms and conditions
and eligibility criteria; and then proceed accordingly.
iv)
Assistant Charity Commissioner, Jalgaon or his
authorized officer shall then hold elections to the managing
committee of the Trust depending upon the decision in relation to
operative order (iii), earlier or on or before 07th October, 2013
and declare the result of such election and proceed further.
v)
Liberty to the A. C. C. Jalgaon, to move this Court in case
of any difficulty.
[ A. B. CHAUDHARI, J. ]
bsb/July 13
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1
Chart in SA No. 225.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
SECOND APPEAL NO. 225 OF 2013
C.R. No.
Subject of C.R.
Date &
Decision by
A.C.C.
Appeal Date & Decision by Jt.
before Jt.
C. C.
C. C.
1 2
3
4
1 430/1999
2 430/1999
3 1288/2000 Election of 01.11.2001 C. Appeal
Deelipsing as R.
No. No.
Sr.
No.
5
Misc. Civil Date & Second
Appeal Decision by the Appeal in
U/Sec. 72 District Court this Court
before and number
District
Court
7 8 9
24.01.2013 S. A. No.
M.C.A. No. 294/2013
164/2002
dismissed.
6
Again change Appeal
report is No.
rejected.
15/2002
Appeal No. 15/2002 is M. C. A. No.
rejected on 30.07.2002 164/2002
by Jt. C. C.
filed by
Deelipsing
28.03.2002 Appeal No. M. C. A. No. 24.01.2013
S. A. No.
86/2001 allowed by Jt. 98/2002 filed Appeal No. 293/2013
– “
ig
Expulsion of 15.03.2000
Appeal
22.11.2001 The appeal
Musa Patel and change report No.
No. 35/2001 is allowed
Anil Patil by is rejected.
35/2001 by by Jt. C. C. and
Narayansing on
Deelipsing matter is remanded to
10.08.1999
A. C. C.
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2
98/2002 came
to be rejected
by common
judgment
Election of 01.11.2001
Appeal
28.03.2002 Appeal M.C.A. No. 24.01.2013
S. A. No.
Shakil Patel in C.R. No. No.
No. 87/2001 is 102/2002
Appeal No. 418/2013
place
of 1290/2000 is 87/2001
dismissed by Jt. C. C. filed
by 98/2002 came
Narayansing on rejected.
filed by (i. e. claim of both as Shaikl Patel to be rejected
31.08.2000
Shakil
President is rejected)
by common
Patel
judgment
But appointed 9
trustees as fit persons.
Narayansing
President, Shakil
Patel as Vice
President and Badhu
Patil as Secretary as
adhoc committee to
look after affairs of
the trust until
decision of C. R. No.
430/99.
(This
1290/2000
ig
4
President in 1288/2000 is 86/2001
C. C. and rejected the by Deelipsing
place
of accepted
filed by C. R. No. 1288/2000 of
deceased
Shaikl
Deelipsing
as
Narayansing
Musa
President
dated
Patel
25.08.2000
Chart in SA No. 225.13
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3
Chart in SA No. 225.13
Election of Change
Shaikl Musa report is
Patel and his pending due
group as per to
stay
order dated granted by
07.05.2003
this Court in
Writ Petition
No.
2098/2003
6 769/2008
30.07.2002 Jt. C. C.
directed A. C. c. to
verify the list of
members of the rival
parties led by
Deelipsing and Shakil
Patel
Election of Change
Shaikl Musa report is
Patel and his pending due
group as per to
stay
order dated granted by
07.05.2003
this Court in
Writ Petition
No.
2098/2003
586/2003
ig
5
committee was the
committee before
dispute between the
parties arose)
Stayed in
Writ Petition
No.
2098/2003
Stayed in
Writ Petition
No.
2098/2003
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4
Chart in SA No. 225.13
Application
U/Sec. 41A
Appln. No.
15/2002
filed by
Shakil
Patel on
19.04.2002
before Jt.
C. C.
02.09.2002
A.C.C.
Verified both
lists and
accepted
membership
list of 422
members of
Shakil Patel
and rejected
membership
list of 418 of
ig
Appln.
U/Sec. 41A
7
30.07.2002, 02.09.2002 M.C.A. No. 24.01.2013
S. A. No.
and final order on 119/2003
District Court 225/2013
07.05.2003 Jt. C. C. filed
by set aside the
approved the order Deelipsing
order accepting
dated 02.09.2002 of A. before the membership of
C. C., and accepted all District
422 of Shakil
members of Shakil Court to Patel and also
and rejected all challenge
confirmed the
members of Deelipsing order of Jt. C. order
of
C. dated rejection of
07.05.2003
membership of
418
of
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5
ig
Deelipsing
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Chart in SA No. 225.13
Deelipsing and
retained
original 80
members only.
S. A. No.
216/2013,
S. A. No.
217/2013, S.
A.
No.
410/2013,
S. A. St. No.
8924/2013
and
S. A. St. No.
13524/2013
filed by
members
who were not
party before
the District
Court.
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