Bombay High Court
Social And Cultural Association vs The State Of Maharashtra on 14 February, 2014
Author: A.I.S. Cheema
Bench: A.I.S. Cheema
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO.254 OF 2012
1) Social and Cultural Association,
Kusumba, Tq. & Dist-Dhule,
Through its President
Shri Anil s/o Mahadu Chaudhari,
Age-40 years, Occu:Service,
R/o-Kusumba, Tq. & Dist-Dhule,
2) Mahadu Nago Chaudhari
(Dead),
3) Shri Pundlik Bapu Pardeshi,
Age-74 years, Occu:Agriculture,
4) Anil s/o Mahadu Chaudhari,
Age-40 years, Occu:Service,
5) Shri Shantaram s/o Ukhadu Chaudhari,
Age-73 years, Occu:Agriculture,
6) Shri Ananda s/o Dala Chaudhari,
Age-63 years, Occu:Agriculture,
7) Sau. Meerabai Digambar Pawar,
Age-47 years, Occu:Household,
All R/o-Kusumba,
Tq. & Dist-Dhule.
...PETITIONERS
(Orig. Defendant Nos.
1 to 4, 6, 8 and 9)
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VERSUS
1) The State of Maharashtra,
Through the Secretary for
Law and Judiciary Department,
Mantralaya, Mumbai,
2) The Assistant Charity Commissioner,
Dhule, Pingle Complex, Sakri Road,
Dhule, Dist-Dhule,
3) Shri Trimbak Nago Chaudhari,
Age-72 years, Occu:Agriculture,
4) Shri Waman Nago Chaudhari,
Age-84 years, Occu:Agriculture,
5) Shri Sadashiv Garbad Chaudhari,
Age-58 years, Occu:Agriculture,
6) Shri Chandrakant Mahadu Chaudhari,
Age-46 years, Occu:Agriculture,
7) Shri Suresh Mahadu Chaudhari,
Age-48 years, Occu:Agriculture,
8) Shri Ravindra Mahadu Chaudhari,
Age-50 years, Occu:Agriculture,
9) Shri Pandurang Jibhau Pawar,
Age-62 years, Occu:Agriculture,
10) Shri Shaligram Krishna Bagul,
Age-55 years, Occu:Agriculture,
11) Shri Shamkant Trambak Chaudhari,
Age-42 years, Occu:Agriculture,
12) Sumanbai Sakharam Chaudhari,
Age-65 years, Occu:Household,
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13) Shri Sanjay Trambak Chaudhari,
Age-47 years, Occu:Agriculture,
14) Sau. Vandanabai Sanjay Chaudhari,
Age-40 years, Occu:Household,
15) Sau. Shailaja Bhikanrao Chaudhari,
Age-48 years, Occu:Household
(Original Plaintiff
Nos. 3 to 15)
16) Madhukar Ganpat Baviskar,
Age-50 years, Occu:Agriculture,
17) Shri Arun Pannalal Jain,
Age-61 years, Occu:Business,
(Original Defendant
Nos. 5 and 7)
All R/o-Kusumba,
Tq. & Dist-Dhule.
...RESPONDENTS
...
Shri V.D. Hon Advocate with Shri A.V.
Hon Advocate for Petitioners.
Shri K.J. Ghute Patil, A.G.P. for Respondent
Nos.1 and 2.
Shri J.R. Shah Advocate with Shri A.K.
Tiwari Advocate for Respondent Nos. 3 to 15.
...
CORAM: A.I.S. CHEEMA, J.
DATE OF RESERVING JUDGMENT : 20TH JANUARY,2014.
DATE OF PRONOUNCING JUDGMENT: 14TH FEBRUARY, 2014.
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JUDGMENT :
1. This Revision Application is by Social and Cultural Association, Kusumba, a registered Trust and its office bearers who are original Plaintiff Nos. 1 to 4, 6, 8 and 9 in Regular Civil Suit No.541 of 2012 pending before Civil Judge, Senior Division, Dhule. Other Defendants from the Trust Defendant Nos. 10 and 11 and the State and Assistant Charity Commissioner who have been arrayed as Defendants in trial Court, are arrayed here as Respondents. Original Plaintiff Nos. 1 to 13 are present Respondent Nos. 3 to 15. For the sake of convenience, I will refer to Petitioners as the Defendants and Respondent Nos. 3 to 15, as Plaintiffs.
2. The present Revision was filed challenging orders below Exhibit 5 dated 1st September, 2012, vide which the resolution of the Trust expelling the Plaintiff Nos. 2 to 9 from membership of the Trust was stayed and permission ::: Downloaded on - 01/03/2014 00:11:08 ::: cra254.12 5 was granted to them to participate in the election held on 2nd September, 2012. The Revision has been filed also against the order dated 30th August, 2012 passed below Exhibits 16 and 22 in the Suit deciding preliminary issue regarding non maintainability of the Suit in view of Section 50 of the Maharashtra Public Trusts Act (earlier known as "Bombay Public Trusts Act, 1950") ("Trust Act" in brief). The trial Court has held that even in the absence of the sanction of the Charity Commissioner under Section 50 of the Trust Act, the Suit is maintainable.
. When the Revision came up for hearing on 20th January 2014, learned counsel for Petitioners-Defendants, on instructions withdrew the challenge relating to quashment of the orders below Exhibit 5 with liberty to seek appropriate remedy if so desired. The liberty was granted.
Thus, it is now necessary to deal with only the challenge relating to orders dated 30th August, ::: Downloaded on - 01/03/2014 00:11:08 ::: cra254.12 6 2012 passed below Exhibit 16 and 26 of the Suit.
3. Plaintiffs filed Suit claiming that the Defendants issued show cause notice dated 17th May, 2012 and vide resolution dated 16th July, 2012, cancelled the membership of the Plaintiffs.
New elections came to be held on 2nd September, 2012. The Suit has been filed for declaration that the resolution dated 16th July, 2012 whereby the membership of Plaintiff Nos. 1 to 13 has been cancelled, should be declared as illegal. Prayer (B) in the Suit is for permitting the Plaintiffs to participate in the election staying the resolution dated 16th July, 2012.
4. Against such Suit, Defendant No.2 and Defendant No.4 moved applications Exhibit 16 and 26 claiming that Section 80 of the C.P.C. was not complied and that keeping in view provisions of Section 50 of the Trust Act, the Suit was not maintainable in the Civil Court as Section 80 of ::: Downloaded on - 01/03/2014 00:11:08 ::: cra254.12 7 the Trust Act creates a bar and that Plaint was liable to be rejected under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 ("C.P.C." in brief), as the Suit is barred before the Civil Court.
5. Trial Court heard the parties for both sides and considered different Rulings cited by both the sides and observed in the context of Section 50 of the Trust Act that the nature of present suit is different as the Plaintiffs have challenged the resolution passed by the Defendants cancelling their membership. The trial Court observed that the Suit was to vindicate civil rights and so it was not barred. Regarding question raised of Section 80 of C.P.C. that notice was necessary as Collector and Assistant Charity Commissioner are party, the Court observed that the Suit was for urgent relief and application to dispense with notice had been allowed.
::: Downloaded on - 01/03/2014 00:11:08 :::cra254.12 8 . [In this Revision, challenge regarding notice under Section 80 of C.P.C. has not been raised and so I am not required to deal with that aspect.]
6. I have heard learned counsel for both sides. Learned counsel for Petitioners-Defendants submitted that elections were held in 2007 for the period 2007 to 2012 and now elections have been conducted on 2nd September, 2012 and the body elected will remain in power till 2017. The counsel submitted that Change Report No.632 of 2012 has already been filed to the Assistant Charity Commissioner. He claimed that after due notice to the concerned Plaintiffs, in a meeting resolution was passed on 16th July, 2012 to cancel the membership of the Plaintiff Nos. 1 to 13.
According to the counsel, the Plaintiffs, instead of going to the Charity Commissioner under Sections 41A to 41D of the Trust Act, preferred to ::: Downloaded on - 01/03/2014 00:11:08 ::: cra254.12 9 file the present Suit. It has been submitted by him that Plaintiffs filed the Suit and vide order below Exhibit 5 they were permitted to participate in the election, still when election was held on 2nd September 2012, the Plaintiffs did not participate inspite of the order being in their favour. According to the learned counsel, for the alleged right claimed by the Plaintiffs to challenge cancellation of their membership, they could have moved the Charity Commissioner and after taking consent in writing from the Charity Commissioner, the Suit could have been filed before the Court, which as per Section 2(4) of the Trust Act means the "District Court". According to him, looking to the facts of the matter Suit before Civil Judge, Senior Division is not competent. It has been argued by the counsel that Section 80 of the Trust Act applies. If the members are added or deleted, the change is recorded with the Charity Commissioner and under Section 22 of the Trust Act also the Plaintiffs ::: Downloaded on - 01/03/2014 00:11:08 ::: cra254.12 10 had right to raise objections. The learned counsel submits that the Trust Act is a complete code in itself and under the procedure relating to change report, complete channel is provided to move the Charity Commissioner, the District Judge as well as the High Court. It has been argued by the learned counsel that on the change report which has been filed by the Defendants, objections have been invited and Plaintiffs have already raised objections to the change report. According to the counsel, the Suit is thus, not maintainable.
Learned counsel relied on the Judgment in the matter of Dinanath Ajabrao Ingole and another vs. Shetkari Shikshan Prasarak, A.I.R. 1983 Bombay Page 404 and Judgment in the matter of Gaud Saraswat Brahmin Temple Trust and others vs. Vasudeo P. Shetye @ Kamlesh P. Shetye and others, 2010(3) Bom.C.R. Page 499.
. Learned counsel for the Petitioners-
Defendants submitted that two groups of trustees ::: Downloaded on - 01/03/2014 00:11:08 ::: cra254.12 11 can file their individual rights in Civil Courts but if Trust is to be proceeded against or acts of Trust are challenged, Trust Act applies. According to the learned counsel, right as trustee or member of the Trust is a statutory right and not civil right.
7. The learned counsel for Respondents-
original Plaintiffs argued that the change report is subsequent to the Suit filed and does not refer to expulsion of the Plaintiffs. The learned counsel submitted that as regards prayer (A) in the Plaint, the Plaintiffs have no other remedy than moving the Civil Court. According to him, the remedy cannot be sought under the provisions of Trust Act. It has been submitted that the trial Court considered the concerned Rulings and rightly ruled that the Suit was maintainable. It has been submitted that the expulsion of the Plaintiffs was done on the ground that they were acting against the interest of the Trust as they had filed ::: Downloaded on - 01/03/2014 00:11:08 ::: cra254.12 12 application before the Charity Commissioner regarding framing of scheme. According to him, such activities could not have been treated as against interest of Trust so as to expel the Plaintiffs. The learned counsel relied on the Judgment in the matter of (1) Kedar Shivkumar Kale vs. Digamber Shridhar Mhapsekar and others, 2007(4) Mh.L.J. Page 77, (2) Namgonda Jingonda Patil vs. Appasaheb Bapurao Walwekar and others, 2000(Supp.) Bom.C.R. Page 582, and (3) Vidarbha Kshatriya Mali Shikshan Sanstha, By its President Shri Wasudeorao Dattaji Sonar vs. Mahatma Fuley Shikshan Samiti, Amravati Through its President Ruprao Bhimrao Yawale, 1986 Mh.L.J. Page 773.
8.(A) Coming to the Rulings cited by the learned counsel for Respondents, first, the matter of Kedar Shivkumar Kale (supra) sought declaration that plaintiff was illegally removed as chairman of the society. The Court discussed the procedure ::: Downloaded on - 01/03/2014 00:11:08 ::: cra254.12 13 followed at the time of meeting where there was no agenda regarding the removal but still, after the chairman had left, instead of adjourning the meeting, the meeting was headed by one Mr. Patel and resolution came to be passed removing the chairman. In Para 5 of the Judgment, it was observed that, when the suit is instituted in relation to vindicating civil rights for declaration that the resolution was illegal, the same was not barred by Section 80 nor consent of Charity Commissioner was pre-requisite. The Court found that in the concerned case, there was no prayer against the Trust. As such the suit was entertained.
8. (B) In the matter of Namgonda Jingonda Patil (supra), declaration was sought that the meetings of Respondent No.5 Trust were non-est and that the resolutions passed in those meetings should be held as non enforceable as the plaint claimed that Respondent No.4 in the suit was not ::: Downloaded on - 01/03/2014 00:11:08 ::: cra254.12 14 well and not present in the meetings and his signatures were taken by the Petitioners subsequently at various places on the resolutions.
In that context, it was claimed that the Respondents were ventilating their civil rights.
There the claim essentially was to vindicate the civil rights of Respondent Nos. 1 to 4 that the record against their names ought not to be a false one. In that matter also the Court found that there was no prayer against the Trust as such.
8. (C) As regards the third Judgment in the matter of Vidarbha Kshatriya Mali Shikshan Sanstha (supra) relied on by the Respondents, the non-
applicant - plaintiff was the Public Trust and the defendant was also a Public Trust and between them there was an agreement, according to which plaintiff Trust was allowed to conduct classes in some rooms of the building belonging to defendant.
Dispute was raised as according to the plaintiff it was the tenant of the suit premises although ::: Downloaded on - 01/03/2014 00:11:08 ::: cra254.12 15 the defendant disputed the same. In such context, the suit was found to be maintainable.
9(A) Coming to the matter of Dinanath Ajabrao Ingole (supra) relied on by the Petitioners-
Defendants, it can be seen that in the said matter, the non-applicant Nos. 1 to 3 were original plaintiffs who instituted regular civil suit for declaration and injunction before Civil Judge, Junior Division, inter-alia claiming declaration that the original plaintiff Nos.2 and 3 are the President and Secretary of the plaintiff No.1 society and they claimed further declaration that original defendants therein were no longer the President and Vice President of the society.
It was claimed that disqualification was informed to the Deputy Charity Commissioner vide change report, which has been accepted. Plaint in that matter alleged that defendants-applicants and 12 other members of the society were declared to be disqualified and consequently removed as members ::: Downloaded on - 01/03/2014 00:11:08 ::: cra254.12 16 of the society and the plaintiffs had got elected as executive committee members. The plaintiffs filed suit before the Civil Judge, claiming that they had been duly elected and that the Deputy Charity Commissioner had no jurisdiction to entertain the concerned suit and the defendant Nos. 1 and 2 should be restrained from functioning as President and Vice President of the society.
Provisions of Section 80 of the Trust Act were considered in the matter. In Para 15 of the Judgment the Court considered that both the sides had filed change reports and still the suit had been filed. The Court considered that Section 22 of the Trust Act shows the mode in which the change in respect of entries relating to public trusts and its trustees is to be effected. Under Sub clause(2) of Section 22 of the Trust Act, Charity Commissioner is authorized to hold an enquiry to verify correctness of the entries and the change that has occurred in respect of any of the particulars recorded under Section 17 of the ::: Downloaded on - 01/03/2014 00:11:08 ::: cra254.12 17 said Act. In that matter, under Section 80 of the Trust Act, the bar attracts, was held and it was found that for deciding whether Section 80 is attracted in a given case, one must consider what in substance and not merely in form, is the nature of the claim made in the suit and the real relief sought therein. The Court found that the questions which were sought to be determined by the Civil Court were to be determined by the Charity Commissioner. It was also found that Section 50 of the Trust Act enjoins a duty upon the plaintiffs to seek consent of the Charity Commissioner for preferring such suit which involves decree in favour or against a trust. The suit was found to be not tenable and came to be dismissed.
9(B). In the matter of Gaud Saraswat Brahmin Temple Trust (supra), the suit was filed by the plaintiff for declaration that the resolution passed by the Trust in board meeting was illegal and that the plaintiff continued to be ::: Downloaded on - 01/03/2014 00:11:08 ::: cra254.12 18 permanent trustee of the Trust. The Court observed that in such matter, it is necessary to look into the averments and the reliefs prayed in the plaint in its entirety. The Court considered the claim of the plaintiff that he fulfills basic criterion of membership laid down in the Rules. Section 50 and 51 of the Trust Act were considered and in Para 10 it was observed that:
"10......... The issue in present case falls under specified (b) and (p) of section 50 of the Act, it is necessary for the plaintiff to obtain the consent of the Charity Commissioner. Section 50 of the Act provides protection to the trust against mala fide suits. The Charity Commissioner if thinks fit may avoid duplication of the proceedings or possibility of conflicting decisions if similar question is pending before him/her and before the civil Court. If the Commissioner arrives at a conclusion that the issue is to be decided by the Civil Court then he may give consent to file a suit."
10. Considering the different Rulings cited by both the sides, material is, to consider the ::: Downloaded on - 01/03/2014 00:11:08 ::: cra254.12 19 present Plaint itself to see what exactly is the relief which is being sought, so as to appreciate whether the same can be said to be barred in view of the provisions of the Trust Act or whether the Suit is maintainable.
11. Briefly stated, the contentions in Plaint are as under:-
. In Para 3 of the Plaint the Plaintiffs have shown as to since when they are members of the Trust and what type of membership they hold.
It is claimed that between Plaintiffs and Defendants there are disputes regarding administration of the Trust and matters are pending. It is claimed that on 30th September, 2007 there was election for the period 2007 to 2012, which led to two different change reports.
Change Report No.961 of 2007 was filed by the Plaintiffs and Change Report No.1088 of 2007 was filed by the Defendants. The Change Report filed ::: Downloaded on - 01/03/2014 00:11:08 ::: cra254.12 20 by the Plaintiffs was rejected and that filed by the Defendants was accepted. The Plaint give details as to further litigation in that context.
It is claimed that the elections have been called on 2nd September, 2012 for the period from 2012 to 2017. Para 5 of the Plaint states that before declaring the election programme, just to keep power with them, the Defendants illegally cancelled the membership of Plaintiffs ten days before issuing the agenda on 16th July, 2012.
According to the Plaintiffs, their membership has been cancelled keeping the election in view and thus the cancellation of the membership is with ulterior object and so the same should be declared as illegal. Para 12 of the Plaint claims that the act of the Defendants in cancelling the membership is beyond the Scheme settled. In the Scheme, there is provision regarding cancellation of membership, however, the order passed cancelling the membership, is not as per the Scheme. Membership of the Plaintiffs was cancelled as they had moved ::: Downloaded on - 01/03/2014 00:11:08 ::: cra254.12 21 Application No.3 of 2011, which is improper. With such contentions (in brief), Plaint prayer (A) is that Resolution No.7 in the meeting of the Trust held on 16th July, 2012 and consequent orders dated 17th July, 2012 cancelling membership of Plaintiff Nos. 1 to 13 should be declared as illegal.
12. Relevant portions of Section 50 of the Trust Act, read as under:-
"50. Suit by or against or relating to public trusts or trustees or others In any case,-
(i).............
(ii)...........
(iii) ........
(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 ::: Downloaded on - 01/03/2014 00:11:09 ::: cra254.12 22 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)............. to (o)..................
(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:-.............................."
(Emphasis supplied)
13. It is clear from the perusal of the above provisions, that declaration relating to "any right" in favour of or against trustees or ::: Downloaded on - 01/03/2014 00:11:09 ::: cra254.12 23 beneficiaries thereof is covered under the above provisions. The rights claimed by the Plaintiffs are apparently not individual rights. Plaint claims that to keep Plaintiffs out of power their membership is cancelled and then elections were called and that the membership cancelled is beyond the Scheme of the Trust. The right to membership cannot be said to be divorced from being member of the Trust. The right claimed is that their membership of the Trust could not have been cancelled by the Trust in the manner in which it has been done. The right emanates basically from being member of the Trust. Merely calling the right civil right will not help. It cannot be said that it is any independent right not connected with the affairs of the Trust or management of the Trust. It has been rightly argued by the learned counsel for Petitioners-Defendants that if the right is to be enforced against the Trust, consent of the Charity Commissioner is necessary under Section 50 of the Trust Act. The contentions in ::: Downloaded on - 01/03/2014 00:11:09 ::: cra254.12 24 the Plaint itself shows that the membership was cancelled with the object of election which was due on 2nd September, 2012. Change report regarding the election is already before the Charity Commissioner and learned counsel for Petitioners submitted that the Respondents-
Plaintiffs have already raised objections. Thus, the dispute whether or not the membership has been legally or illegally cancelled, can be considered when objections regarding the election which followed, are considered in the Change Report. I find that the present Suit must be held to be barred as per Section 80 of the Trust Act, as the matter is covered under Section 50 of the Trust Act, in case the Plaintiffs want to pursue the dispute before the Court. The dispute can be decided and dealt with even at the time of Change Report. Thus, Section 80 of the Trust Act applies and the Suit is not maintainable.
14. For the above reasons, I pass following ::: Downloaded on - 01/03/2014 00:11:09 ::: cra254.12 25 order:-
O R D E R (A) Civil Revision Application is allowed.
(B) Impugned order dated 30th August, 2012 passed below Exhibit 16 and 26 in Regular Civil Suit No.541 of 2012, by the Civil Judge, Senior Division, Dhule, is quashed and set aside.
(C) Under Order VII Rule 11(d) of the C.P.C. the Plaint is rejected as barred by provisions of the Maharashtra Public Trusts Act.
(D) No order as to the costs.
[A.I.S. CHEEMA, J.] asb/FEB14 ::: Downloaded on - 01/03/2014 00:11:09 :::