Bombay High Court
Lakhichand Marotrao Dhoble And Another vs Joint Charity Commissioner, Nagpur And ... on 3 November, 2020
Equivalent citations: AIRONLINE 2020 BOM 2492
Author: A.S.Chandurkar
Bench: A.S.Chandurkar, N.B.Suryawanshi
1 WP St.8356.20(j).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION STAMP NO. 8356/2020
1. Lakhichand Marotrao Dhoble,
Aged about 69 years, Occupation : Business,
Resident of 393-A, Indraprastha,
Hanuman Nagar, Nagpur-440 024.
2. Kisangopal Chunnilalji Gandhi
Aged about 72 years, Occupation : Business,
Resident of Flat No.9, Nisha Smruti Apartments,
Rahate Colony, Wardha Road, Nagpur-440 022.
....... PETITIONERS
...V E R S U S...
1. Joint Charity Commissioner,
Civil Lines, Nagpur.
2. The Advisory Society of Ganesh Temple,
Station Road, Sitabuldi,
Nagpur.
3. Shriram Bapurao Kulkarni,
Aged about 77 years,
Plot No.34, Behind Railway Line,
Datey-Layout, Swawalambi Nagar,
Nagpur.
4. Sanjay Shripad Jogalekar,
Aged about 61 yars,
161 Shivaji Nagar, Nagpur-440 010.
5. Vikas Anant Limaye,
Aged about 73 years,
903 B Khare Town, Dharampeth,
Nagpur.
6. Arun Govindrao Vyas,
Aged about 61 years,
7th Navnirman, Rana Pratap Nagar,
Nagpur-440 022.
::: Uploaded on - 03/11/2020 ::: Downloaded on - 04/11/2020 04:56:32 :::
2 WP St.8356.20(j).odt
7. Dilip Manohar Shahakar,
Aged about 61 years,
3rd floor, Shreela Apartments,
Khare Town, Dharampeth, Nagpur-440 010.
8. Hari Laxman Bhalerao,
Aged about 77 years,
Resident of 111, Sahakar Nagar,
Sonegaon Road, Nagpur.
....... RESPONDENTS
----------------------------------------------------------------------------------------------------------------------
Shri C.S.Kaptan, Senior Advocate with Shri S.V.Bhutada, Advocate for
petitioners.
Shri M.A.Kadu, Assistant Government Pleader for respondent no. 1
Ms Ashwini Athalye, Advocate for respondent no.2.
Shri Shakil Deshmukh, Advocate for respondent nos. 3, 4, 6 to 8.
Shri S.P.Dharmadhikari, Senior Advocate with Shri R.K.Joshi, for respondent
no.5.
----------------------------------------------------------------------------------------------------------------------
CORAM : A.S.CHANDURKAR and N.B.SURYAWANSHI, JJ.
DATE ON WHICH THE ARGUMENTS WERE HEARD : 26.10.2020
DATE ON WHICH THE JUDGMENT IS PRONOUNCED : 03.11.2020
JUDGMENT (Per A.S.Chandurkar, J)
In view of notice for final disposal issued earlier, the learned counsel for the parties have been heard at length.
2. Rule. Rule made returnable forthwith and taken up for hearing
3. The petitioners who are the Chairman and Treasurer respectively of a public trust by name Shri Ganesh Mandir Tekdi, Nagpur (for short, the Trust) have been removed from their posts by other members of the Managing Committee of the ::: Uploaded on - 03/11/2020 ::: Downloaded on - 04/11/2020 04:56:32 ::: 3 WP St.8356.20(j).odt Trust by passing a motion of no-confidence. The public Trust is registered under the Maharashtra Public Trusts Act, 1950 (for short, the Act of 1950). The petitioners have invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India for seeking a declaration that the Scheme of administration of the Trust does not contemplate passing of a "no-confidence motion" against the office bearers of the Managing Committee of the Trust. On that premise, resolution dated 05.07.2020 expressing no-confidence against the petitioners has been challenged as being bad in law.
4. A Scheme of administration of the affairs of the Trust came to be formulated and thereafter settled by this Court in First Appeal No. 182/1973. As per the aforesaid Scheme, the Managing Committee of the Trust was to comprise of eleven members who were deemed to be trustees of the Trust. These eleven members were then to elect the Chairman, Vice-Chairman, Treasurer, Secretary and if necessary an Assistant Secretary. The election of the Managing Committee was to take place every five years. After the term of the Managing Committee for the period from 2014 to 2019 came to an end, a new Managing Committee came to be constituted. The first petitioner became the Chairman while the second petitioner became its Treasurer. In the meeting of the Managing Committee held on 05.07.2020 a resolution was passed expressing lack of confidence against the Chairman and the Treasurer on account of their earlier conduct. The petitioners were not present in the said meeting and were accordingly informed of the same by communication dated 06.07.2020. This has led the petitioners to approach this Court by the present writ petition for seeking the reliefs as stated hereinabove.
::: Uploaded on - 03/11/2020 ::: Downloaded on - 04/11/2020 04:56:32 :::
4 WP St.8356.20(j).odt
5. Shri C.S.Kaptan, learned Senior Advocate for the petitioners at the outset submitted that when the motion of no-confidence was passed and the petitioners were required to seek legal redress, they were unable to do so by invoking any statutory remedy before the learned Joint Charity Commissioner in view of various restrictions imposed due to COVID-19 pandemic. According to him, the reliefs sought by the petitioners could not be prayed for under any of the provisions of the Act of 1950. Considering the wider issues involved which included interests of the deity and lakhs of devotees, the petitioners had approached this Court. It was his submission that under the Scheme of administration of the Trust which was settled by this Court there was no provision for moving any motion of no-confidence against any office bearer of the Managing Committee. This had been deliberately not provided for with a view to ensure smooth functioning of the Trust and to avoid any such situation that could result in affecting the administration of the Trust. In the absence of any provision for moving a motion of no-confidence, it was not permissible for the Managing Committee to remove the petitioners in such manner. By moving the motion of no-confidence, the concerned respondents had acted against the Scheme as framed by this Court. It was further submitted that an elected member of the Managing Committee could be removed only in the manner as provided for under the Scheme and in absence of any such provision in that regard the removal of the petitioners was illegal. Seeking to distinguish the decision of the Hon'ble Supreme Court in Vipulbhai M. Chaudhary, (2015) 8 SCC 1 it was submitted that the law as laid down by the Hon'ble Supreme Court in the said decision was in the context of co-operative societies keeping in view the 97th amendment to the Constitution of India. Since by such amendment the status of co-operative societies had been raised to that of a democratic institution, it had ::: Uploaded on - 03/11/2020 ::: Downloaded on - 04/11/2020 04:56:32 ::: 5 WP St.8356.20(j).odt been held that an office bearer of a co-operative society could be removed when such office bearer loses the confidence of the representatives who selected him even in absence of any statutory provision for removal by way of no-confidence motion. This legal position would not apply to a public trust which was registered under the Act of 1950 or the Societies Registration Act, 1860 (for short, the Act of 1860). The principles laid down in the aforesaid decision could not be relied upon for justifying the removal of the petitioners by passing a motion of no-confidence. It was further urged that the law laid down in the said decision could not be made applicable to the facts of the present case especially when the statute involved therein was different. In that regard, reliance was placed on the decisions in Padma Sundara Rao (Dead) and others Vs. State of T.N. and others, (2002) 3 SCC 533 and Pushpa Jivatram Mihani Vs. State of Maharashtra and others 2007 (5) Mh L J 754.
The learned Senior Advocate then referred to the decision in Mohanlal Tripathi Vs. District Magistrate, Rai Bareilly, AIR 1993 SC 2042 where in the context of a Municipality it had been held that the right of recall could be exercised only if the same had any statutory support in that regard. In absence of any such provision, removal of an elected representative could not be justified on abstract notions of democracy or political philosophy. Referring to the judgment of a learned Single Judge of the Allahabad High Court Sudha Srivastava Vs. Registrar, Firms Societies and Chits, Uttar Pradesh, Lucknow, 2018 (5) ALJ 734 , it was submitted that in the context of a residents welfare society which was registered under the Act of 1860 it was held that an office bearer could not be removed by passing a motion of no- confidence when there was no such provision in its bye-laws. It was pointed out that the decision in Vipulbhai M. Chaudhary (supra) had been considered and ::: Uploaded on - 03/11/2020 ::: Downloaded on - 04/11/2020 04:56:32 ::: 6 WP St.8356.20(j).odt distinguished by the learned Single Judge on the same analogy. It was urged that the motion of no-confidence passed against the petitioners was without there being any such provision in the Scheme of administration. It was thus urged that unless the Scheme of administration was amended or modified to include a provision of passing of a motion of no-confidence, such resolution as passed by the Managing Committee of the Trust was bad in law. Reference was then made to the order dated 13.03.2002 passed by the learned Single Judge in Writ Petition No. 2956/1997 (Krushnarao K.Naidu & ors. Vs. Jeevraj B.Agrawal and ors. ) at the Nagpur Bench in relation to the same Trust wherein it was observed that unless the Scheme was altered or modified, it had to be implemented according to its clauses. The learned Senior Advocate also referred to the decisions in Minoo Rustomji Shroff and others Vs. Charity Commissioner and others, (2005) 2 Mh L J 1135 and Institute of Mechanical Engineers(India) & others Vs. R.N.Engineer (2003) 2 BCR 330 in support of his submissions. It was thus submitted that in the absence of any provision in the Scheme of administration of the Trust that permitted passing of a motion of no-confidence against the petitioners their removal was illegal and thus liable to be set aside.
6. On the other hand, Shri S.P.Dharmadhikari, learned Senior Advocate for the respondent no.5 besides opposing the aforesaid submissions raised an objection to the maintainability of the writ petition under Article 226 of the Constitution of India. According to him, the Scheme of administration as framed by this Court was analogous to the exercise of powers under Section 92 of the Code of Civil Procedure, 1908 and the same had the force of a decree passed by the Court. The nature of the Scheme of administration was not statutory so as to clothe any rights in favour of the petitioners. The Trust registered under the Act of 1950 did not perform any public duty and was ::: Uploaded on - 03/11/2020 ::: Downloaded on - 04/11/2020 04:56:32 ::: 7 WP St.8356.20(j).odt merely a religious trust which could be seen from its objects. It did not perform any public duty nor did it receive any financial assistance from the State. Its activities did not qualify to make it "State" or any other authority as contemplated by Article 12 of the Constitution of India. The members of the Managing Committee as well as of the Trust were governed by the provisions of the Act of 1950 and by the Scheme of administration as framed. In that view of the matter, the Trust would not be a "person or authority" under Article 226 of the Constitution and there was no right in the petitioners to invoke the writ jurisdiction of this Court. In that regard, the learned Senior Advocate placed heavy reliance on the decision of the Hon'ble Supreme Court in Ramkrishna Mission .Vs. Kago Kunya and others SCALE 2019 (5) 559 . He submitted that in the aforesaid decision the Mission was running a hospital which received some grants from the State and land was also made available to it on a concessional rate. While examining the issue as to whether the functions performed by the hospital were public functions, it was submitted that the Hon'ble Supreme Court had clearly held that the hospital had no monopoly status conferred by law so as to discharge a public function. It was held that the Mission was not amenable to writ jurisdiction under Article 226 of the Constitution of India. It was submitted that the case in hand stood on a better footing as neither the Trust received any State assistance nor was it performing any public duty. Reference was then made to the judgment of the Division Bench in Mahadeorao Gulabrao Bhuibar and others Vs. State of Maharashtra and others, 1995 (2 ) Mh L J 881 wherein it was held that a writ of quo warranto could not be issued to an office bearer of a public trust as it was not a public body nor were its trustees public authorities. The ratio of this decision applied on all fours to the case in hand.
::: Uploaded on - 03/11/2020 ::: Downloaded on - 04/11/2020 04:56:32 :::
8 WP St.8356.20(j).odt It was then submitted that under the Scheme of administration of the Trust, the Managing Committee was to be elected every five years. The Chairman and Treasurer when elected did not have any fixed tenure and they held the office at the pleasure of other members of the Managing Committee. There was an inherent right of recall in the members of the Managing Committee when it sought to replace the Chairman or the Treasurer by passing a motion of no-confidence. The principle of law as laid down in Vipulbhai M. Chaudhary (supra) was liable to be applied even to a public trust considering the spirit of the law as laid down. It was further urged that in the various decisions relied upon by the petitioners, the persons elected therein had a fixed tenure of office and in the absence of any provision for passing a motion of no- confidence the right to continue in office could not have been curtailed. Same was not the position in the case in hand. Even though the petitioners had ceased to function as the Chairman and Treasurer, they continued to be the members of the Managing Committee. Moreover, in view of the provisions of 41 E of the Act of 1950, the statutory remedy was available to the petitioners for being invoked before the first respondent. Even if no remedy was available for the petitioners under the provisions of the Act of 1950 the petitioners could always approach the Civil Court and the bar under Section 80 of the Act of 1950 would not be applicable in such situation. The learned Senior Advocate referred to the decision in Kedar Shivkumar Kale Vs. Digambar Shridhar Mhapsekar and ors. 2007 (4) Mh L J 77 in that regard. Further, the Court would be required to go into the question of availability of an alternate remedy to the petitioners only if it found that the writ petition as filed was maintainable. If the writ petition was held to be not maintainable then there would be ::: Uploaded on - 03/11/2020 ::: Downloaded on - 04/11/2020 04:56:32 ::: 9 WP St.8356.20(j).odt no occasion to go into the question as to what would be the remedy available to the petitioners. It was thus submitted that no relief was liable to be granted to the petitioners.
Shri Shakil Deshmukh, learned counsel for the respondent nos. 3, 4, 6 to 8 adopted the arguments as made on behalf of the fifth respondent. Additionally, he placed reliance on the judgment of the Hon'ble Supreme Court in Sarah Mathew Vs. Institute of Cardio Vascular Diseases AIR 2014 SC 448 as well as the judgment of the Rajasthan High Court in Kamal Kishore Vs. State of Rajasthan (Civil Writ Petition No.5051/2007 decided on 07.12.2007 at the Jodhpur Bench). Ms. Ashwini Athalye, learned counsel appearing for the second respondent supported the removal of the petitioners on the basis of the report of the auditors. She urged that the Trust be permitted to exercise its financial powers in the matter of disbursement of salaries and other emoluments to its employees by referring to Civil Application Stamp No.10236/2020.
7. Rebutting the aforesaid submissions as urged by the respondents, it was submitted by Shri C.S. Kaptan, learned Senior Advocate for the petitioners that there was no efficacious remedy available to the petitioners under the provisions of the Act of 1950 to challenge the passing of the motion of no-confidence. Referring to the provisions of Section 22 of the Act of 1950, it was urged that a change as contemplated by Section 17 of the Act of 1950 was required to be reported by the reporting trustee. Such change report was required to be filed within a period of 90 days of the occurrence of the change and this remedy was not available to the petitioners. Though the petitioners continued to be the members of the trust, they ::: Uploaded on - 03/11/2020 ::: Downloaded on - 04/11/2020 04:56:32 ::: 10 WP St.8356.20(j).odt had been illegally removed from the posts of the Chairman and Treasurer respectively by passing a motion of no-confidence thus affecting their legal rights and they could not be left remediless. He further submitted that the petitioners were also precluded from approaching the Civil Court in view of the bar contained in Section 80 of the Act of 1950. Since no remedy was available under the provisions of the Act of 1950, the petitioners had rightly approached this Court invoking its writ jurisdiction. Referring to the provisions of Section 41 B of the Act of 1950, it was submitted that said provision could have been invoked by the respondents if they sought any enquiry into the affairs of the Managing Committee and especially against the Chairman and the Treasurer on the basis of the audit reports. It was then submitted that the decisions relied upon by the learned Senior Advocate for the fifth respondent were clearly distinguishable in the facts of the present case. In Mahadeorao Gulabrao Bhuibar (supra) the Court was concerned with the question as to the issuance of a writ of quo warranto and the observations made therein were in that context. Referring to the judgment of the Hon'ble Supreme Court in Ramkrishna Mission (supra) it was submitted that the institution therein was not registered as a trust nor was it registered under any other statute while the Trust in the present case was registered under the Act of 1950. Placing reliance on the decision of the Division Bench in Kobad Jehangir Bharda Vs. Farokh Sidhawa & Ors. 1990 Mh L J 883, it was submitted that when the activities of the trust are subject to being regulated by the provisions of the Act of 1950, this Court had held that a writ could be issued under Article 226 of the Constitution of India against any illegal act of the public trust. He also referred to the decision in Praga Tools Corporation Vs. Shri C.A.Imanual and ors 1969 (1) SCC 585 to substantiate his contentions. It was thus submitted that ::: Uploaded on - 03/11/2020 ::: Downloaded on - 04/11/2020 04:56:32 ::: 11 WP St.8356.20(j).odt considering the aforesaid legal position, it was clear that the petitioners had rightly invoked the writ jurisdiction of this Court and the prayers made in the writ petition deserve to be granted.
8. We have heard the learned counsel for the parties at length and we have given due consideration to their respective submissions. Two questions arise for adjudication in the light of the aforesaid submissions. Firstly, whether the writ petition under Article 226 of the Constitution of India at the behest of the members of the Managing Committee of a public trust who have been removed by passing a motion of no-confidence would be maintainable against the public trust and secondly, if the writ petition is held to be maintainable, whether in absence of there being any provision in the Scheme of administration of the Trust to remove a member of the Managing Committee by passing a motion of no-confidence, such action taken against the petitioners is illegal ?
9. While considering the question as to the maintainability of the writ petition under Article 226 of the Constitution of India which has been filed against the Trust, it would be necessary to refer to certain undisputed facts.
The Trust has been duly registered under the provisions of the Act of 1950. By virtue of such registration, the Trust is also deemed to be registered under the provisions of the Act of 1860. The objects of the Trust as stated in the Scheme of administration of the Trust are as under :
"Object of the Trust :
i. To inculcate religious feelings in the Hindu
Community;
ii. To raise their spiritual and moral standards by
::: Uploaded on - 03/11/2020 ::: Downloaded on - 04/11/2020 04:56:32 :::
12 WP St.8356.20(j).odt
holding suitable programmes and festivals;
iii. To create the spirit of sacrifice and selflesseness
among the Hindus;
iv. To create the feelings of benevolences and affection
to the poor community and;
v. For study of all aspects of 'Ganesh Puja and study of
the idealogy of Shree Ganesh'.
The activities of the Trust are purely voluntary in nature. It has not been shown that the Trust receives any grants from the State exchequer and its activities are carried on by virtue of donations received from the devotees. The Managing Committee comprises of eleven members who are all deemed to be trustees of the Trust. The administration of the Trust is vested in the members of the Managing Committee who are required to elect a Chairman, a Treasurer, a Secretary and if necessary an Assistant Secretary. The tenure of the Managing Committee is for a period of five years. This Scheme of administration has been settled by virtue of the orders passed by this Court in First Appeal No. 182/1973. The Scheme of administration as framed would relate to the provisions of Section 50 A of the Act of 1950 and not Section 92 of the Code of Civil Procedure, 1908 as Section 52 of the Act of 1950 renders Section 92 of the Code of Civil Procedure, 1908 inapplicable in such matters.
10. Under Article 226 of the Constitution of India the High Court is empowered to issue directions, orders or writs to any person or authority for the enforcement of any rights conferred by Part-III of the Constitution of India or for any other purpose. It is well settled by now that the term "any person or authority" used in Article 226 of the Constitution of India has a wider meaning than the same term as ::: Uploaded on - 03/11/2020 ::: Downloaded on - 04/11/2020 04:56:32 ::: 13 WP St.8356.20(j).odt used in Article 12 of the Constitution of India. Reference in this regard can be made to the decision in Anadi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others Vs. V.R.Rudani and ors. (1989) 2 SCC 691 wherein it was held that the words "any person or authority" used in Article 226 of the Constitution of India are not confined only to statutory authorities and instrumentalities of the State. They would cover any other person or body performing public duty. In the said decision two exceptions to the issuance of a writ of mandamus were also stated; namely, if the rights were purely of a private character and if the Management of the institution was a private body with no public duty, a writ of mandamus would not lie. In Binny Limited and anr. Vs. V. Sadasivan and ors. (2005) 6 SCC 657, it was held that though a writ could be issued against any private body or person, the scope of mandamus would be limited to the enforcement of a public duty. The nature of duty performed by such person/body would be the determinative factor as the Court would enforce the said duty and identity of the authority against whom the right as sought would not be relevant. There had to be a public law element in the action of that body. In Federal Bank Limited Vs. Sagar Thomas and others, (2003) 10 SCC 733, it was held that a private body or a person would be amenable to writ jurisdiction only when it becomes necessary to compel such body or organisation to enforce any statutory obligation or such obligation of public nature casting positive obligation upon it. It was clarified that merely because there were certain regulatory provisions to ensure that the private body carries on its activities within a discipline that would not confer any such status upon the private body nor put any such obligation upon it. Similarly, in K.K.Saksena Vs. International Commission on Irrigation and Drainage and ors. (2015) 4 SCC 670 it was observed that "private law ::: Uploaded on - 03/11/2020 ::: Downloaded on - 04/11/2020 04:56:32 ::: 14 WP St.8356.20(j).odt remedies" were not enforceable through extra ordinary writ jurisdiction. Even if a body performing public duty is amenable to writ jurisdiction, all its decisions would not be subject to judicial review. Only those decisions which had a public element therein could be judicially reviewed under writ jurisdiction. Further, the distinction between a body created by a statute and a body after having come into existence being governed by the provisions of a statute as noticed in Vaish Degree College Vs. Lakshmi Narayan AIR 1976 SC 838 is also relevant.
11. In Ramkrishna Mission (supra) a hospital was being run by the Mission. Various other activities undertaken by the Mission were voluntary, charitable and non- profit making in nature. The hospital was receiving some grants from the State Government and land had been made available for the construction of the hospital by the State Government at a concessional rate. The hospital sought to retire one of its employees from service which action was challenged by the employee by filing a writ petition under Article 226 of the Constitution of India. Considering the question as to whether the Mission was amenable to writ jurisdiction the Hon'ble Supreme Court noted in paragraph 31 as under :
"31 Before an organisation can be held to discharge a public function, the function must be of a character that is closely related to functions which are performed by the State in its sovereign capacity. There is nothing on record to indicate that the hospital performs functions which are akin to those solely performed by State authorities. Medical services are provided by private as well as State entities. The character of the organisation as a public authority is dependent on the circumstances of the case. In setting up the hospital, the Mission cannot be construed as having assumed a public function. The hospital has no monopoly status conferred or mandated by law. That it was the first in the State to provide service of a particular dispensation does not make it an 'authority' within the meaning of Article 226. State governments provide concessional terms to a variety of organisations in order to attract them to set up establishments ::: Uploaded on - 03/11/2020 ::: Downloaded on - 04/11/2020 04:56:32 ::: 15 WP St.8356.20(j).odt within the territorial jurisdiction of the State. The State may encourage them as an adjunct of its social policy or the imperatives of economic development. The mere fact that land had been provided on a concessional basis to the hospital would not by itself result in the conclusion that the hospital performs a public function. In the present case, the absence of state control in the management of the hospital has a significant bearing on our coming to the conclusion that the hospital does not come within the ambit of a public authority."
It was observed that though the hospital was subject to regulations by a statute, the same would not constitute the hospital as a body that was constituted under the statute. Even if individuals and organisations are subject to statutory requirements that by itself would not be conclusive to hold that such an individual or organisation discharges public functions. Considering the voluntary nature of activity of the hospital, it was held that the Mission did not discharge a public function. Accordingly, it was held that the Mission was not amenable to writ jurisdiction under Article 226 of the Constitution of India on the ground that it was not an authority within the meaning of that Article.
12. From the aforesaid decisions it is clear that before issuing a writ against "any person or authority" under Article 226 of the Constitution of India it would be necessary to examine that :
(a) The "person or authority" should be one performing a public duty. The nature of the duty being performed would a major determinative factor.
(b) A writ could be issued against "any person or authority" for the purposes of enforcement of a statutory obligation or an obligation of a public nature which is required to be performed by such person or authority.
(c) Even if there are certain regulatory provisions so as to ensure that a ::: Uploaded on - 03/11/2020 ::: Downloaded on - 04/11/2020 04:56:32 ::: 16 WP St.8356.20(j).odt private body carries on its activities within a discipline that by itself would not confer such status upon the private body nor put such obligation upon it. The distinction between a body created under a statute and a body governed by a statute after it has come into existence cannot be ignored.
(d) Even where a body performs a public duty all its decisions would not be subject to judicial review and only such decisions which have a public element therein could be judicially reviewed in exercise of writ jurisdiction.
(e) If the nature of activities done by "any person or authority" are of a voluntary nature or if its functions are not closely related to functions which are performed by the State in its sovereign capacity, such person or authority would not fall within the ambit of a public authority.
13. The Trust has been duly registered under the provisions of Act of 1950. The Act of 1950 was enacted to regulate and to make better provisions for the administration of public religious and charitable trusts in the State of Maharashtra. When the objects of the Trust are perused, it becomes clear that the Trust engages in religious activities with a view to inculcate religious feelings in the Hindu community. Its activities are purely of a voluntary nature and it has not been shown that the Trust receives financial assistance from the State. It was not even suggested on behalf of the petitioners that while conducting its activities the Trust discharged functions of a character that were closely related to functions performed by the State in its sovereign capacity. It is neither the function nor the duty of the State to inculcate religious feelings amongst members of any particular community. Thus when it is seen that the Trust did not perform any public function nor did it discharge any public duty nor ::: Uploaded on - 03/11/2020 ::: Downloaded on - 04/11/2020 04:56:32 ::: 17 WP St.8356.20(j).odt was it compelled by any of the provisions of the Act of 1950 to achieve its objects in view of the fact that the endeavour to inculcate religious feelings was purely of a voluntary nature, it becomes obvious that the Trust through its members would not become "any person or authority" that would answer the legal requirements as contemplated by Article 226 of the Constitution of India.
The fact that the provisions of the Act of 1950 under which the Trust was registered after it came into existence and the Trust was required to comply with certain statutory obligations by virtue of such registration would by itself would not make the Trust amenable to writ jurisdiction under Article 226 of the Constitution of India. In Federal Bank Limited (supra) it has been clearly held that only where it becomes necessary to compel a body or an association to comply with statutory obligations of a public nature thereby casting an obligation upon it, would it become amenable to writ jurisdiction. Merely because the Trust was required to carry out its activities in the light of regulatory provisions under the Act of 1950, the same would not confer any such status upon the Trust nor would it be under such obligation that could be enforced through the issuance of a writ under Article 226 of the Constitution of India. The dispute between the parties pertains to the affairs of the Managing Committee of the Trust which is governed by the Scheme of administration as framed. The same involves purely personal rights of the petitioners and there is no element of public law involved therein. The ratio of the decision in Ramkrishna Mission (supra) squarely applies to the case in hand. The facts of the said case indicate that the hospital had received some financial assistance from the State and land had been granted to it at a concessional rate. Despite these factors, on finding that the hospital had no monopoly status nor were its functions closely related to functions performed ::: Uploaded on - 03/11/2020 ::: Downloaded on - 04/11/2020 04:56:32 ::: 18 WP St.8356.20(j).odt by the State it was held that the hospital did not come within the ambit of a public authority. The observations of the Division Bench in Mahadeorao Gulabrao Bhuibhar (supra) while referring to the distinction between the functions of a Society in relation to educational institutions to which a writ of mandamus may lie as held in Anadi Mukta (supra) and its internal working with regard to elections or its constitution are also relevant. We thus find that in the absence of the Trust performing any public duty and there being no public law element in the objects of the Trust, it cannot be made amenable to writ jurisdiction.
14. Heavy reliance was placed by the learned Senior Advocate for the petitioners on the decision of the Division Bench in Kobad Jehangir Bharda (supra) and hence it would be necessary to refer to the facts of the said case. A Madresa registered under the provisions of the Act of 1950 was imparting education to Zorastrian Parsi children. A school was being run by the said public trust which was recognized by the State Government. A student was expelled from the Madresa and this decision was sought to be challenged by filing a writ petition under Article 226 of the Constitution of India. The question as to the maintainability of the writ petition was gone into. The Division Bench held that the activities of the school were governed by the Secondary School Code and it was required to confirm to the said Code. After finding that the said public trust was supported entirely by donations from the Zorastrian Parsi community and there were only two Madresas in the City of Bombay, it was held that the authority of the public trust was monopolistic. Though the Madresa was not receiving any financial aid from the State Government since its activities were governed by the provisions of the Act of 1950, public control was being exercised through the machinery created by the Act of 1950. The public trust was ::: Uploaded on - 03/11/2020 ::: Downloaded on - 04/11/2020 04:56:32 ::: 19 WP St.8356.20(j).odt discharging public duty to the members of the said community and therefore it owed a public duty to the inmates of the Madresa. It was thus held that though the Madresa was a private body it was "public" in relation to the Zorastrian Parsi community. The community had a public right in the proper administration of the objects of the trust and on that basis it was held that the writ petition under Article 226 of the Constitution of India was maintainable. This was also in view of the fact that the impugned action was in-contravention of the provisions of the Secondary School Code.
15. We find that the aforesaid decision has been rendered in the peculiar facts of the said case. The activities of the public trust were limited to the members of the Zorastrian Parsi community as it was created only for the welfare of the said community. There were only two Madresas in the city and it was found that the authority of the public trust was monopolistic. The legal rights and liabilities of the members of that community were affected and the community had a public right in the proper administration of the said public trust for achieving its objects. Moreover, it was also found that the provisions of the Secondary School Code had been violated while taking the impugned action. As a condition of recognition the school had to act in conformity with the provisions of the Secondary School Code. Relying upon the decision in Anadi Mukta (supra) it was held that since the expulsion of the student was in breach of the provisions of the Secondary School Code, the writ petition under Article 226 of the Constitution was maintainable.
It is well settled that before applying the ratio of a given case to the facts of the case in hand the factual background in which the decision relied upon was rendered is required to be examined. Even a singular distinguishing feature in the ::: Uploaded on - 03/11/2020 ::: Downloaded on - 04/11/2020 04:56:32 ::: 20 WP St.8356.20(j).odt cited decision can make a lot of difference due to which such decision becomes distinguishable. As stated above, in the present case the entire activities of the Trust are voluntary in nature and its object is merely to inculcate religious feelings in the Hindu community. The objects of the Trust do not indicate that while attempting to achieve these objects the Trust is either under any statutory obligation to do so or is discharging any public duty in that regard. The activities of the Trust also cannot be treated to be monopolistic in nature. The removal of the petitioners on the strength of the motion of no-confidence is challenged principally on the ground that the Scheme of administration of the Trust does not provide for removal in such manner. It is not even a case of violation of any statutory provision of the Act of 1950. We find that in the light of the facts of the present case, the ratio of the decision in Kobad Jehangir Bharda (supra) cannot be made applicable to the case in hand. Similarly, the observations in Praga Tools Corporation (supra) to the effect that a mandamus can issue to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed cannot be made applicable in the facts of the present case.
16. Considering the objects of the Trust, the voluntary nature of its activities, absence of any State assistance in any manner, absence of any positive obligation of public nature to be discharged and lack of public law element vis-a-vis the Trust, we are of the considered view that the Trust is not a "person or authority" as contemplated under Article 226 of the Constitution of India; moreso when the dispute is purely personal to the petitioners based on alleged infraction of the Scheme of administration of the Trust. We thus hold that the present writ petition under Article 226 of the Constitution of India seeking the declaratory relief against the Trust is not ::: Uploaded on - 03/11/2020 ::: Downloaded on - 04/11/2020 04:56:32 ::: 21 WP St.8356.20(j).odt maintainable. For said reason we have neither gone into the merits of the challenge raised to the resolution dated 05.07.2020 nor do we deem it necessary to examine the aspect of existence or otherwise of an alternate efficacious remedy for being invoked by the petitioners.
Keeping all questions on merits open, the writ petition is not entertained as it is found to be not maintainable. Rule stands discharged leaving the parties to bear their own costs. Consequently, the pending Civil Applications are also disposed of.
JUDGE JUDGE
Andurkar..
::: Uploaded on - 03/11/2020 ::: Downloaded on - 04/11/2020 04:56:32 :::