Bombay High Court
Nagpur Diocesan Trust Association, ... vs Shri. Mobin Khan Rasul Khan Prop. K.G.N. ... on 26 October, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.847 OF 2017
Nagpur Diocesan Trust Association,
Nagpur, a Public Trust registered
under the Maharashtra Public Trusts
Act, 1950, bearing Registration
No.D-5 (N), having its office at
Cathedral House, Sadar, Nagpur,
through its Secretary,
Paranjyothi s/o Elisha Sandela,
Aged about 51 years,
Occupation: Service,
R/o Civil Lines, Nagpur. ....... PETITIONER
...V E R S U S...
1] Shri Mobin Khan Rasul Khan,
Proprietor, K.G.N. Furniture,
Aged about 39 years,
Occupation: Business,
R/o Sanstha Dargah Ward,
Chandrapur,
Tq. & Dist. Chandrapur.
2] Smt. Premlata Anandrao Shinde,
Aged - Major,
Occupation: Household,
R/o Binba Gate, Binba Ward,
Chandrapur,
Tq. & Dist. Chandrapur. ....... RESPONDENTS
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Shri M.P. Khajanchi, Advocate for Petitioner.
Shri Ashish Kadukar, Advocate for Respondent 1.
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CORAM: ROHIT B. DEO, J.
DATE: th
26 OCTOBER, 2018.
ORAL JUDGMENT
1] Heard Shri M.P. Khajanchi, the learned Counsel for the petitioner and Shri Ashish Kadukar, the learned Counsel for respondent 1.
2] Rule. Rule made returnable forthwith by consent of the learned Counsels for the parties.
3] The petitioner - defendant in Regular Civil Suit 155/2015 is assailing the order dated 29.09.2016, by and under which, the Trial Court framed preliminary issue, which is reproduced below:
Whether the suit and counter-claim are tenable against the defendants for want of consent under Section 51 of the Maharashtra Public Trusts Act?
4] Regular Civil Suit 155/2015 is instituted by respondent 1 seeking injunction simpliciter restraining the ::: Uploaded on - 30/10/2018 ::: Downloaded on - 01/11/2018 23:40:34 ::: wp847.17.J.odt 3 petitioner - defendant 2 from disturbing the alleged possession qua the suit property.
5] The petitioner - defendant 1 has lodged a counter-claim seeking possession of the suit property.
6] The respondent 1 - plaintiff claims to be a tenant qua the suit property, while the petitioner - defendant 2 claims that the respondent 1 - plaintiff is a trespasser.
7] It is not the case of any party to the suit that the provisions of section 51 of the Maharashtra Public Trusts Act ('Act') are attracted.
8] Section 51 of the Act reads thus:
51. Consent of Charity Commissioner for institution of suit:
(1) If the person having an interest in any public trust intend to file a suit of the nature specified in section 50, they shall apply to the Charity Commissioner in writing for his consent. [If the Charity Commissioner after hearing the parties and making such enquiries (if any) as he thinks fit is satisfied that there is a prima facie case, he] may ::: Uploaded on - 30/10/2018 ::: Downloaded on - 01/11/2018 23:40:34 ::: wp847.17.J.odt 4 within a period of six months from the date on which the application is made, grant or refuse his consent to the institution of such suit. The order of the Charity Commissioner refusing his consent shall be in writing and shall state the reasons for the refusal.
(2) If the Charity Commissioner refuses his consent to the institution of the suit under sub-
section (1), the persons applying for such consent may file an appeal to the Court, as if such order was an order passed by the District Court from which an appeal lies, within sixty days from the date of the said order, which shall otherwise be final.
(3) In every suit by persons having interest in any trust under section 50, the Charity Commissioner shall be a necessary party.
9] It would also be necessary to consider the provisions of section 50, which reads thus:
50. Suit by or against or relating to public trusts or trustees or others:
In any case, --
(i) where it is alleged that there is a breach of a public trust, negligence, misapplication or misconduct on the part of a trustee or trustees.
(ii) where a direction or decree is required to recover the possession of or to follow a property belonging or alleged to be belonging to a public trust or the proceeds thereof or for an account of such property to proceeds from a trustee, ex-trustee, alienee or any other person but not a person holding adversely to the public trust, ::: Uploaded on - 30/10/2018 ::: Downloaded on - 01/11/2018 23:40:34 ::: wp847.17.J.odt 5 trespasser, licensee or tenant.
(iii) where the direction of the Court is deemed necessary for the administration of any public trust, or
(iv) for any declaration or injunction in favour of or against a public trust or trustee or trustees or beneficiary thereof, the Charity Commissioner after making such enquiry as he thinks necessary, or two or more persons having an interest in case the suit is under sub-clauses (i) to (iii), or one or more such persons in case the suit is under sub-clause (iv) having obtained the consent in writing of the Charity Commissioner as provided in section 51 may institute a suit whether contentious or not in the Court within the local limits of whose jurisdiction the whole or part of the subject-matter of the trust is situate, to obtain a decree for any of the following reliefs:--
(a) an order for the recovery of the possession of such property or proceeds thereof;
(b) the removal of any trustee or manager;
(c) the appointment of a new trustee or manager;
(d) vesting any property in a trustee;
(e) a direction for taking accounts and making certain enquiries;
(f) an order directing the trustees or others to pay to the trust the loss caused to the same by their breach of trust, negligence, misapplication, misconduct or wilful default;
(g) a declaration as to what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(h) a direction to apply the trust property ::: Uploaded on - 30/10/2018 ::: Downloaded on - 01/11/2018 23:40:34 ::: wp847.17.J.odt 6 or its income cypres on the lines of Section 56 if this relief is claimed along with any other relief mentioned in the section;
(i) a direction authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged or in any manner alienated on such terms and conditions as the court may deem necessary:
(j) the settlement of a scheme, or variations or alterations in a scheme already settled;
(k) an order for amalgamation of two or more trusts by framing a common scheme for the same.
(l) an order for winding up of any trust and applying the funds for other charitable purposes;
(m) an order for handing over of one trust to the trustees for some other trust and deregistering such trust;
(n) an order exonerating the trustees from technical breaches, etc.;
(o) an order varying, altering, amending or superseding any instruction of trust;
(p) declaration or denying any right in favour of or against a public trust or trustee or trustees or beneficiary thereof and issuing injunctions in appropriate cases; or
(q) granting any other relief as the nature of the case may require which would be a condition precedent to or consequential to any of the aforesaid relief or is necessary in the interest of the trust :
Provided that no suit claiming any of the reliefs specified in this section shall be instituted in respect of any public trust, except in conformity with the provisions thereof:::: Uploaded on - 30/10/2018 ::: Downloaded on - 01/11/2018 23:40:34 ::: wp847.17.J.odt 7
Provided further that, the Charity Commissioner may instead of instituting a suit make an application to the Court for a variation or alteration in a scheme already settled:
Provided also that, the provisions of this section and other consequential provisions shall apply to all public trusts, whether registered or not or exempted from the provisions of this Act under sub-section (4) of section 1].
10] Provisions of section 50(ii) would reveal that if a suit instituted by the public trust seeking recovery of possession of the trust property from a person holding adversely to the public trust or trespasser or licensee or tenant, then the permission of the Charity Commissioner under section 51 is not necessary.
11] Considering the nature of the right asserted in the suit claim and the pleadings in the counter-claim, the question of applicability of section 51 of the Act does not arise.
The preliminary issue framed is wholly unnecessary for adjudication of the suit.
12] The order impugned dated 29.09.2016 is quashed.::: Uploaded on - 30/10/2018 ::: Downloaded on - 01/11/2018 23:40:34 ::: wp847.17.J.odt 8
13] The learned Trial Court is expected to dispose of Regular Civil Suit 115/2015 as expeditiously as possible.
14] Rule is made absolute in the afore-stated terms.
JUDGE NSN ::: Uploaded on - 30/10/2018 ::: Downloaded on - 01/11/2018 23:40:34 :::