Bombay High Court
Shri Shakil Musa Patel vs Shri Dilipsing Pratapsing Patil on 31 July, 2013
Author: A. B. Chaudhari
Bench: A. B. Chaudhari
1 SA 225.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 225 OF 2013
1. Shri Shakil Musa Patel,
Age : 58 Years, Occu. : Service and
Agriculture R/o Sakegaon,
Tq. Bhusawal, Dist. Jalgaon.
2. Shri Anil Pundlik Patil,
Age : 49 Years, Occu. : Agril.,
R/o Sakegaon, Tq. Bhusawal,
Dist. Jalgaon. .. Appellants
Versus
1. Shri Dilipsing Pratapsing Patil,
Age : 52 Years, Occu. : Agril.,
R/o Sakegaon, Tq. Bhusawal,
Dist. Jalgaon.
2. Joint Charity Commissioner Nashik,
having its office at Kharbanda Mansion,
Near Dwarka, Nasik-Pune Road,
Nashik.
3. Assistant Charity Commissioner,
Jalgaon having its office at
Dr. Babasaheb Ambedkar Market,
Jalgaon, Tq. & Dist. Jalgaon. .. Respondents
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2 SA 225.13
Shri R. N. Dhorde, Senior Advocate i/by Shri V. R. Dhorde,
Advocate for Appellants.
Shri V. J. Dixit, Senior Advocate i/by Shri L. V. Sangit, Advocate
for the Respondent No. 1.
CORAM : A. B. CHAUDHARI, J.
CLOSED FOR JUDGMENT ON : 23/07/2013
JUDGMENT PRONOUNCED ON : 31/07/2013
JUDGMENT :
. 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. F-718 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 ::: Downloaded on - 27/08/2013 21:13:31 ::: 3 SA 225.13 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 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 ::: Downloaded on - 27/08/2013 21:13:31 ::: 4 SA 225.13 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 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 ::: Downloaded on - 27/08/2013 21:13:31 ::: 5 SA 225.13 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 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 ad-hoc 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 ::: Downloaded on - 27/08/2013 21:13:31 ::: 6 SA 225.13 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 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 ::: Downloaded on - 27/08/2013 21:13:31 ::: 7 SA 225.13 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 by Shakil Musa Patel.
5. Again after five years, Shakil Musa Patel held election and 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.::: Downloaded on - 27/08/2013 21:13:31 :::
8 SA 225.13
7. 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.
8. In support of the appeals preferred by Shakil Musa Patel 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 :
i) The Jt. C. C. in Application No. 15/2002 made the order 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 ::: Downloaded on - 27/08/2013 21:13:31 ::: 9 SA 225.13 going to the root of the matter can certainly be adjudicated in 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.
iv) There was no challenge raised by Deelipsing Patil to the 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 ::: Downloaded on - 27/08/2013 21:13:31 ::: 10 SA 225.13 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 ad-hoc committee i.
e. in the year 2000. This is a serious error on facts and, therefore, this Court should make a remand order for re-hearing by the District Court.
vi) 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 ::: Downloaded on - 27/08/2013 21:13:31 ::: 11 SA 225.13 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.
09. Per contra, Mr. V. J. Dixit, the learned senior advocate with Mr. L. V. Sangeet, the learned counsel for the respondent, made the following submissions.
a) 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.
::: Downloaded on - 27/08/2013 21:13:31 :::12 SA 225.13 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 parties on 28.03.2002.
b) The order dated 07.05.2013 in Application No. 15/2002 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.
::: Downloaded on - 27/08/2013 21:13:31 :::13 SA 225.13 CONSIDERATION :
10. I have heard learned counsel for rival parties. I have gone 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 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?::: Downloaded on - 27/08/2013 21:13:31 :::
14 SA 225.13
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?
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?
::: Downloaded on - 27/08/2013 21:13:31 :::15 SA 225.13 ANSWERS :
i) 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.
11. Answer to Question No. 1 :
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 ::: Downloaded on - 27/08/2013 21:13:31 ::: 16 SA 225.13 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 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 ::: Downloaded on - 27/08/2013 21:13:31 ::: 17 SA 225.13 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 principles in interpreting statute that section 41-A 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 41-E of the B.P.T. Act, 1950. But this power under section 41-A 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 41-A 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 ex-planation to Rule ::: Downloaded on - 27/08/2013 21:13:31 ::: 18 SA 225.13 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 41-A 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 41-A of the B.P.T. Act, 1950.
32. There is one more reason which we discuss further for saying so. Section 41-A 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 41-A 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 ::: Downloaded on - 27/08/2013 21:13:31 ::: 19 SA 225.13 Mills Ltd. Meerut Vs. Lakshmi Chand and others) reported in A.I.R. 1963 S.C. 677 (para 11).
"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 well-settled. 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 ::: Downloaded on - 27/08/2013 21:13:31 :::
20 SA 225.13 character...."
34. 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 41-A of the B.P.T. Act, 1950 to affect the rights of any party.
35. We, thus, hold that power exercised by the Charity Commissioner is administrative in nature and the Charity Commissioner does not act as judicial or quasi judicial authority under Section 41-A 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 41-A. 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 ::: Downloaded on - 27/08/2013 21:13:31 ::: 21 SA 225.13 varied under relevant sections and to obey the directions till then. There is no challenge before us to validity of section 41-A 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 41-A of same nature or more drastic, can be viewed as not quasi judicial ? Answer is obviously "yes", because under section 41-A, directions of various nature can be issued from time to time in order to preserve or protect charity/Trust. Section 41-A is obviously subject to sections dealing with courts. Hence, directions envisaged under section 41-A 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 watch-dog has been given those powers to enable him to function more efficiently. Under section 41- ::: Downloaded on - 27/08/2013 21:13:31 ::: 22 SA 225.13 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 41-A. Once need to issue such directions is felt, section 41-A permits directions on matters regulated by even other sections due to words "subject to other provisions of this Act".
13. It is thus clear from the legal position set out by us in the 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. 41-A of the Trust Act in relation to the dispute that was pending before the District ::: Downloaded on - 27/08/2013 21:13:31 ::: 23 SA 225.13 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. 41-A, 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 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 ::: Downloaded on - 27/08/2013 21:13:31 ::: 24 SA 225.13 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 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 ::: Downloaded on - 27/08/2013 21:13:31 ::: 25 SA 225.13 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 negative.
15. I have carefully considered the submissions made by the 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 ad-hoc 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 ad-hoc 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 re-writing 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 ::: Downloaded on - 27/08/2013 21:13:31 ::: 26 SA 225.13 the Code of Civil Procedure to find out and set right the correct factual position.
16. 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 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 co-operative 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, ::: Downloaded on - 27/08/2013 21:13:31 ::: 27 SA 225.13 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 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 ::: Downloaded on - 27/08/2013 21:13:31 ::: 28 SA 225.13 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 remand to the District Court is not warranted. Hence I answer question No. 4 accordingly.
18. 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 by Shakil Musa Patel's group was legal and valid and that of 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 :
THE BOMBAY PUBLIC TRUST ACT 1950
1. ..........
2. ..........
22. Change :
(1) Where any change occurs in any of the entries ::: Downloaded on - 27/08/2013 21:13:32 ::: 29 SA 225.13 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 Sub-Registrar 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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30 SA 225.13
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 ::: Downloaded on - 27/08/2013 21:13:32 ::: 31 SA 225.13 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 sub-register 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.
19. The aforesaid provision of Sec. 22 of the Trust Act is in the 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.
::: Downloaded on - 27/08/2013 21:13:32 :::32 SA 225.13
20. 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 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 directions, which I do hereafter.
21. In the result, I make the following order.
O R D E R
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 ::: Downloaded on - 27/08/2013 21:13:32 ::: 33 SA 225.13 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 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 ::: Downloaded on - 27/08/2013 21:13:32 ::: 1 Chart in SA No. 225.13 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 225 OF 2013 Sr. C.R. No. Subject of C.R. Date & Appeal Date & Decision by Jt. Misc. Civil Date & Second No. Decision by before Jt. C. C. Appeal Decision by the Appeal in A.C.C. C. C. U/Sec. 72 District Court this Court before and number District Court 1 2 3 4 5 6 7 8 9 1 430/1999 Expulsion of 15.03.2000 ig 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. 2 430/1999 - " -- Again change Appeal Appeal No. 15/2002 is M. C. A. No. 24.01.2013 S. A. No. report is No. rejected on 30.07.2002 164/2002 M.C.A. No. 294/2013 rejected. 15/2002 by Jt. C. C. filed by 164/2002 Deelipsing dismissed.
3 1288/2000 Election of 01.11.2001 C. Appeal 28.03.2002 Appeal No. M. C. A. No. 24.01.2013 S. A. No. Deelipsing as R. No. No. 86/2001 allowed by Jt. 98/2002 filed Appeal No. 293/2013 m ::: Downloaded on - 27/08/2013 21:13:32 ::: 2 Chart in SA No. 225.13 President in 1288/2000 is 86/2001 C. C. and rejected the by Deelipsing 98/2002 came place of accepted filed by C. R. No. 1288/2000 of to be rejected deceased Shaikl Deelipsing as by common Narayansing Musa President judgment dated Patel 25.08.2000 4 1290/2000 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 ig 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 m ::: Downloaded on - 27/08/2013 21:13:32 ::: 3 Chart in SA No. 225.13 committee was the committee before dispute between the parties arose) 5 586/2003 Election of Change 30.07.2002 Jt. C. C. Stayed in Shaikl Musa report is directed A. C. c. to Writ Petition Patel and his pending due verify the list of No. group as per to stay members of the rival 2098/2003 order dated granted by parties led by 07.05.2003 this Court in Deelipsing and Shakil Writ Petition Patel No. ig 2098/2003 6 769/2008 Election of Change Stayed in Shaikl Musa report is Writ Petition Patel and his pending due No. group as per to stay 2098/2003 order dated granted by 07.05.2003 this Court in Writ Petition No. 2098/2003
--------------- -------------------- m ::: Downloaded on - 27/08/2013 21:13:32 ::: 4 Chart in SA No. 225.13
---
7 Application --- --- ---
U/Sec. 41-A Appln. No. 15/2002 filed by Shakil Patel on 19.04.2002 before Jt.
C. C.
Appln. 02.09.2002
ig -- 30.07.2002, 02.09.2002 M.C.A. No. 24.01.2013 S. A. No.
U/Sec. 41-A A.C.C. and final order on 119/2003 District Court 225/2013
Verified both 07.05.2003 Jt. C. C. filed by set aside the
lists and approved the order Deelipsing order accepting
accepted dated 02.09.2002 of A. before the membership of
membership C. C., and accepted all District 422 of Shakil
list of 422 members of Shakil Court to Patel and also
members of and rejected all challenge confirmed the
Shakil Patel members of Deelipsing order of Jt. C. order of
and rejected C. dated rejection of
membership 07.05.2003 membership of
list of 418 of 418 of
m
::: Downloaded on - 27/08/2013 21:13:32 :::
5 Chart in SA No. 225.13
Deelipsing 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
ig and
S. A. St. No.
13524/2013
filed by
members
who were not
party before
the District
Court.
m
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