Karnataka High Court
Basantkumar S/O. Thimmanagouda Patil vs Sardar Veeranagouda Patil Mahila on 29 May, 2018
Author: G.Narendar
Bench: G.Narendar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 29TH DAY OF MAY, 2018
BEFORE
THE HON'BLE MR. JUSTICE G.NARENDAR
WRIT PETITION No.85687/2013 (GM R/C)
BETWEEN:
SRI.BASANTKUMAR
AGED 64 YEARS
S/O. THIMMANAGOUDA PATIL
OCC: BUSINESS,
C/O. BASANT RESIDENCY,
NO.3, 4TH MAIN, GANDHINAGAR,
BANGALORE. ... PETITIONER
(BY SRI.K.L.PATIL, ADV.)
AND:
SARDAR VEERANAGOUDA PATIL MAHILA
VIDYAPEETH,
VIDYA NAGAR, HUBLI,
REPRESENTED BY ITS
TRUSTEE AND AUTHORISED PERSON
SRI.PREMANAND VEERANAGOUDA PATIL
AGED 84 YEARS
OCC: INDUSTRIALIST,
R/O. VIDYA NAGAR, HUBLI,
DHARWAD DISTRICT. ... RESPONDENT
(BY SRI. SRIKANT.T.PATIL, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
2
ORDER DATED.19.08.2013 VIDE ANNEUXRE-A PASSED
THEREIN, AS DEVOID OF THE AUTHORITY OF LAW.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, THIS DAY THE COURT PRONOUNCED
THE FOLLOWING:
DATE OF RESERVING THE ORDER : 25.01.2017
DATE OF PRONOUNCEMENT OF ORDER : 29.05.2018
ORDER
Heard the learned counsel for the petitioner and learned counsel for the respondent.
2. The petitioner is before this Court assailing the order dated 19.08.2013 passed by the Principal District and Sessions Judge at Dharwad.
The brief facts of the case necessary for disposal of the writ petition is as under:
3. Undisputedly, the respondent-Trust is a Public Charitable Trust named as 'Saradar Veeranagouda Patil Mahila Vidya Peeth', Vidya Nagar, Hubli. The said trust came to be registered under the Bombay Public Trust Act, 1950 (hereinafter referred to as 'the BPT Act' for short) under 3 registration No.E-52 (DWR) pursuant to enquiry in No.9857/1952 dated 21.12.1953. That the Management of the Trust is vested with the Board of Trustees originally consisting of five members. The provisions of the Clause 6 of the Trust Deed provides for the appointment of new Trustees. One Smt Nagamma Veeranagouda Patil was the author of the Trust and the Board of Trustees consisted of one V.V.Patil, who was a legislator and husband of the author of the Trust and was designated as the Chairman. The other four trustees were the author of the Trust i.e., Smt. Nagamma Patil, one Sri.S.R.Nadig, Sri.C.S.Hulkoti and the President, Karnataka Provincial Harijan Board and it was declared that the Board of Trustees shall not be less than five and shall not exceed nine members. The Trust Deed was placed before the Court below as Ex.P10 and certain extents of immovable properties were also vested in the Trust and the Trust established several Educational Institutions, Industrial Training Centre, Nursing Institutions, Working Women Hostel, Sports Club for Women and Harijan Balika Asrma. That noted personalities 4 and personalities holding constitutional offices have visited the premises of the Trust and that recognizing the yeoman services rendered by the Trust and its Chairman, the Government of India was pleased to confer one of the highest civilian awards in the nation i.e., Padmashree Award to the Chairman of the Trust. That the Trust is continuing its yeoman services even to this date.
4. That in the month of May 2003, the Bombay Public Trust Act, 1950, the parent statute under which the Trust came to be created as an entity, stood repealed and no other statute was enacted providing for similar provisions as provided under the repealed Enactment. In view of the vacuum created by the repeal, the Change Report could not be submitted which otherwise was mandatory under the erstwhile statute. That in the interregnum, the Board of Trustees thought it fit to have this Trust registered under the Society Registration Act and accordingly, the same came to be registered Under Society Registration Act on 24.11.2008 but, later realizing the error, the Trust did not seek for renewal of 5 the registration. That subsequently, the Board of Trustee learnt that the State Government pursuant to the repeal had got issued a notification bearing No.EKAROP SHASHAN-CR- 72/2003-04 dated 04.06.2005. That under the said notification, the State Government had clarified that Educational Institution and other institutions did not come within the purview of the Karnataka Hindu Religious Endowment Act 1997 and the same would come within the purview of Sections 3 and 7 of the Charitable and Religious Trust Act 1920.
5. That in the light of the legal developments resulting in the repeal of the parent statute and notification, the term of office of certain trustees who came to be appointed subsequently stood expired and that the existing Chairman of the Trust nominated four trustees including one Sri.Premanad Veeranagouda Patil who was appointed as a Life Trustee and three others were appointed for a period of five year w.e.f. 27.05.2012. That the Board resolved to obtain the approval of the Court for the newly constituted Board of 6 Trustees and in lieu of the Resolution, Misc.Petition.No.131/2012 was filed in the Court of the Principal District and Sessions Judge, Dharwad and pursuant to the directions of the Court, paper publication inviting objections was got published and there being no objections, the Court was pleased to allow the same and thereby declared that the newly constituted Board of Trustees are lawfully constituted and entitled to discharge the functions as Trustees of the respondent-Trust. A further relief was also sought to declare that the nomination of the said Sri.Premanad Veeranagouda Patil as a Life Time Trustee be approved. The said proceedings seeking declaration and omitting the petitioner from the Board of Trustees is the cause for the litigation between the parties.
6. The petitioner on learning about the order passed in Misc.Petition, immediately moved an application before the Court of the Principal District and Sessions Judge for recalling the order and accordingly, the same came to be recalled. The said order was called in question before this 7 Court, which later upheld the same and permitted the parties to proceed with the enquiry.
7. It is contended by the petitioner that the Board of Trustees by Resolution dated 16.03.1996 had been pleased to appoint the petitioner as a Trustee. That as per the Clause 6 of the Trust deed, all Trustees appointed were appointed as Life Trustees as the Trust Deed did not provide tenure based term and a person appointed as a Trustee was entitled to continue till his death, retirement, refusal to act or till he is rendered incapable to act or takes the benefit of the insolvency law. The Clause 6 reads as follows:
"6. Appointment of New Trustees:
If and so often as the Trustees hereby constituted or any of them or any further Trustees of these presents shall die or desire to retire or refuse or become incapable to act in the trusts hereof or shall take the benefit of the insolvency Law for the time being in force or cease to be naturalized Indian, then and in every such case, it shall be lawful for the surviving or continuing Trustees or Trustee for the time being of these presents (and for this purpose the 8 retiring or refusing trustee shall, if willing to act in the exercise of this power be considered a continuing trustee) and if there be no surviving or continuing Trustees, then for the acting executors or executor or administrators or administrator of the last surviving or continuing Trustee to appoint new Trustees or Trustee (who shall always be an Indian domiciled in India) in place of the Trustees or Trustee so during or desiring to retire or refusing or becoming incapable to act or taking the benefit of the insolvency law, or ceasing to be naturalized Indian and upon every such appointment or vacancy, the number of Trustees may be increased or decreased, so that the number of Trustees for the time being of these presents shall not be less than five or more than nine. The Trustees may also appoint additional Trustees or Trustee who shall always be residing in India provided that by the appointment of such additional Trustees or Trustees the maximum number of Trustees fixed above is not exceeded."
8. It is submitted that subsequent to the Resolution dated 16.03.1996, the Board submitted a Change Report to the office of the Assistant Charity Commissioner and enclosed 9 therewith the consent letter of the petitioner to act as a Trustee. The Change Report was submitted to the Assistant Charity Commissioner as he was the Competent Authority to incorporate the change in the Public Trust Register, maintained under the erstwhile statute. That the Assistant Charity Commissioner had not passed any order accepting or rejecting the Change Report and the same was pending.
9. It is submitted that the Board once again met on 29.04.1996 and passed a Resolution whereby it was resolved to curtail the term of office of the Trustees who could be appointed thereinafter. The said amendment restricting the term of office of the Trustee came to be introduced and resolved on 29.4.1996 and thereby, the Office of the Trustee who would be appointed in future was restricted to a term of five years. It is submitted that the said resolution pertaining to the curtailment of the office of Trustee, came to be submitted as a Change Report to the then Competent Authority i.e. the Assistant Charity Commissioner. It is 10 further submitted that on 17.03.1997, one more trustee by name Sri.B.V.Patil came to be appointed and the appointment was only for a period of five years. Thereafter, the Competent Authority commenced enquiry in No.316/1997 and while disposing the Change Report was pleased to enter in the register that the petitioner was also appointed as a Trustee for a period of five years along with the said Sri.B.V.Patil who came to be appointed under the Resolution dated 17.03.1997. That upon receipt of the copy of the same, the Chairman of the Trust submitted an application to the Assistant Charity Commissioner requesting for rectification of the erroneous endorsement in the register regarding the restricted term of the office of the petitioner as a Trustee and by clarifying that the petitioner was appointed as a Life Trustee. The said application was made on 30.07.2001 and the same was pending when the repeal of the statute came into force.
10. Further, it is submitted that in the meanwhile the petitioner who got upset by the developments submitted his 11 resignation letter on 03.07.2012 and the Chairman refused to accept the same and on the request of the Chairman, the petitioner withdrew his resignation and that thereafter on 04.07.2012 and 05.07.2012, the present Chairman along with her husband and one more member had a formal meeting in Bengaluru and in that meeting, the petitioner suggested the appointment of one Sri.T.B.Patil as member of Trust Committee and these developments clearly demonstrate that the petitioner was acting as a Life Trustee which was also recognized and acknowledged by the respondent.
11. It is contended that when the term of other members expired, the only remaining Trustees were the Chairman, who was a Life Trustee and the instant petitioner. Thereafter, the Chairman called a meeting on 24.07.2012 without any intimation to the petitioner and inducted four other trustees including the husband of the Chairman i.e, the said Sri.P.V.Patil who came to be inducted as a Life Trustee and that the induction of the said Sri.P.V.Patil as a Life 12 Trustee is contrary to the Resolution dated 29.04.1996 as the appointment of Trustees had by then been restricted to a fixed tenure of five years.
12. Though certain arguments are canvassed regarding the conduct of the parties, this Court is not delving into the same as no finding is rendered by the Court below and the allegations can be gone into in an appropriate proceedings. This Court restricts itself to examine the contention of the petitioner as to whether he is a Life Trustee or not?
13. Learned counsel for the respondent has reiterated the findings rendered by the trial Court in the Miscellaneous Petition.
14. This Court is not addressing the issue with regard to maintainability of the petition as no arguments are canvassed on the said point. The issue as to whether the 13 Bombay Public Trust Act, 1950 or the Charitable and Religious Trust Act 1920 is applicable or not, is kept open.
15. The point that falls for consideration in the present writ petition is:
"Whether the order impugned is legally
sustainable or not?"
The answer is in the negative. The order impugned is vitiated by factual inaccuracies, misreading of the evidence and misconception of law.
16. This Court has perused the detailed cross- examination of PW.1 who is none other than the husband of the Chairman who came to be appointed as a Life Time Trustee despite the Resolution dated 29.04.1996. In the cross-examination, innumerable admissions have been elicited which demonstrates the fact that unamended Clause 6 of the Trust Deed visualized appointment of Life Time Trustee only. That only by the Resolution dated 29.04.1996, the tenure of the Trusteeship was altered and the 14 tenure of office was for a fixed term. It is also elicited that in the Resolution dated 16.03.1996 while appointing the petitioner as a Trustee, no period was fixed. It is also elicited that the deponent was first appointed as a Trustee in the year 2005 and the appointment was only for a period of five years in consonance with the Resolution fixing the tenure of Trusteeship and that he was not inducted as a Trustee Between 2010 and 25.07.2012. It is further elicited that by the Resolution dated 25.07.2012 he was inducted as a Life Time Trustee. The witness has also admitted that the application has been made by his wife i.e., the Chairman of the Trust to the Competent Authority requesting for correcting the erroneous entry in the register curtailing the tenure of the petitioner's Trusteeship. The witness was also confronted with the Resolution appointing the Chairman as a Trustee and he further admits that no time period was stipulated in the said Resolution passed on 16.03.1996 and with regard to the annual reports marked as Exs.P11 and 12 he further admits that the name of the petitioner was 15 included therein as a Trustee and the witness has also admitted that no notice of the meeting of the year 2012 was issued to the petitioner. He also admits the tendering of resignation by the petitioner and refusal of the Chairman to accept the same. He would also admit the Communication/Letter by the Chairman dated 19.10.2012 expressing her happiness for the petitioner having withdrawn his resignation. He would also admit the meeting conducted at Bengaluru in the petitioner's premises with regard to the day to day administration of the Trust though he has denied that the petitioner remained Trustee as on 25.07.2012. Thus, the perusal of the cross-examination would demonstrate that the petitioner has literally admitted the case canvassed by him.
17. A perusal of the impugned order would show that the Court below has not addressed itself to any of the admissions elicited in the course of cross-examination. The admissions have been elicited by confronting the witness with the documents before the Court. Further perusal of the 16 impugned order would show that the Court below has chosen to reject the case of the petitioner only on the ground that the petitioner has not elected to challenge the entry in the register and hence, it held that the entry being final, it is not open for the petitioner to contend otherwise. This finding is per se incorrect and factually wrongly as the said entry has already been called in question by the respondent-Trust itself in its application dated 30.07.2001.
18. It is not the case of the respondent that the petitioner was entitled to maintain such an application by himself. As per the scheme of the BPT Act, 1950, the Change Report has to be presented by the authorized person and the applicant, who submitted the Change Report is the Chairman and the application seeking for correction of the error is by the said Chairman who is the Competent Person. It is also an admitted fact that the said application dated 31.07.2001 calling for correction of the error has not been disposed of. Neither of the parties are able to enlighten the Court with 17 regard to the fate of the application. The application is made on two counts namely, that the appointment of the petitioner is not for a fixed tenure and that prior to 29.04.1996 all appointments of Trustees, were made for their life time or till they desire to retire or who were unable to perform or had applied under the insolvency laws.
19. A plain reading of Clause 6 of the Trust Deed substantiates this contention. It is only on 29.04.1996, a Resolution came to be passed by the Board whereby the Office of the Trusteeship of life was converted into an office of fixed tenure of five years. Hence, the induction of the petitioner on 16.03.1996 was under the unamended Clause 6 which provided only for appointment on life time basis. Hence, the conclusion of the Court below in the light of the entry in the PTR pursuant to enquiry No.316/1996 is only for a fixed tenure is erroneous and unsustainable and it is contrary to the very provision of the Trust Deed. One other ground on which the case of the respondent would fail is that 18 the BPT Act, 1950 no where invests the power or authority with the Assistant Charity Commissioner to curtail or alter the term of office of Trusteeship or to pass an order or make an entry in the register with regard to the term of the office contrary to the registered Trust Deed. It is trite law that the bye-law or the terms and conditions incorporated into the Deed of Trust reign supreme. Hence, even assuming that the error committed by the Competent Authority is an order under the enactment, the same stands vitiated on account of inherent lack of jurisdiction with the Assistant Charity Commissioner to pass an order curtailing the office of the Trusteeship contrary to the Trust Deed.
20. After a detailed examination of the documentary evidence and the facts involved, this Court is of the considered opinion that in all probability, the error came to be committed by the Authority on account of the fact that the enquiry pertained to two Change Reports submitted by the respondent-Trust. One pertaining to the induction of the 19 petitioner pursuant to the Resolution dated 16.03.1996 and the other pertaining to the induction of one Sri.B.V.Patil pursuant to the Resolution dated 17.03.1997.
21. Admittedly the induction of said Sri.A.V.Patil is subsequent to the Resolution dated 29.04.1996 which was produced and marked as Ex.P17 and the Resolution dated 16.03.1996 was marked as Ex.P18. It is also not in dispute that Resolution dated 29.04.1996 is only prospective and has no retrospective effect and the Resolution dated 16.03.1996 being prior in point of time, the period of office of the petitioner is not affected by the subsequent Resolution. This is the only conclusion that can be drawn as the records reveal that the Change Report in an enquiry No.346/1996 was accepted on 10.05.1996 whereas the order on the Change report regarding the amended bye-law was passed on 23.05.1996 and it is an admitted fact that only in the Resolution passed in respect of the said Sri.A.V.Patil, a Clause curtailing the term of office in consonance with the 20 Resolution dated 29.04.1996 came to be incorporated and that no such Clause restricting the period of office was incorporated in the Resolution dated 16.03.1996 pertaining to the petitioner. Thus, on a detailed appreciation of the material on record and Ex.P18 and Ex.D2 and the conduct of the parties and the admissions elicited in the cross- examination of PW.1, the only inescapable conclusion this Court can arrive at is that the petitioner is appointed in terms of bye-law No.6, which provided for appointment of Trustees for life.
22. Hence, the finding of the Court below that the term of Trusteeship of the petitioner is only for five years is factually and legally unsustainable and it is accordingly set aside. It is declared that the petitioner is a Life Trustee in terms of bye-law No.6 of the Trust Deed. As regards the validity of meeting held on 25.07.2012, this Court refrains from expressing opinion in view of the fact that the term of the members has already ended by efflux of time. The 21 appointment of the Trustee Sri.P.V.Patil as a Life Trustee has already been modified by the Court below.
Accordingly, the writ petition is partly allowed. The order of the trial Court holding that the petitioner is a Trustee for five years is set aside. The further declaration that only the Chairman is entitled to be a Life Trustee is modified and it is held that the Chairman Smt. Laxmibai and the petitioner having been appointed prior to 29.04.1996 are entitled to hold office of Trusteeship for life as provided under bye-law 6 till they are capable of holding office as detailed therein.
Ordered accordingly.
Sd/-
JUDGE VM CT:HR