Bombay High Court
Shri Sadanand Shantwan Salvi And Ors. vs The Nasik Diocesan Council Reg. Trust ... on 13 March, 1997
Equivalent citations: 1997(4)BOMCR39
JUDGMENT R.G. Vaidyanatha, J.
1. All these 10 appeals are interconnected and pertain to one and the same dispute. They arise out of a common order dated 23-10-1996 passed by the learned Additional District Judge, Nasik. Common arguments were heard addressed by the learned Counsel appearing for the appellants and respondents. Hence all the 10 appeals are being disposed of by this common judgment.
2. First appeals numbers, corresponding case numbers of the District Judge and corresponding case numbers of the Asst. Charity Commissioner are as follows:-
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Appeal in High Civil Misc. Application Scheme Application before
Court before District Judge the Asst. Charity Commis-
sioner
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F.A. C.M.C. S.C.A. 1. 1587/96 167/92 11/96 2. 1628/96 164/92 11/90 3. 1629/96 166/92 12/91 4. 1630/96 168/92 2/89 5. 1631/96 204/92 12/91 6. 1686/96 166/92 12/91 7. 1687/96 167/92 11/90 8. 1688/96 168/92 2/89 9. 1689/96 204/92 12/91 10. 1691/96 164/92 11/90
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2A. The facts, which are necessary for the disposal of these appeals are as follows:-
Earlier there was a Trust by name Nasik Diocosan Trust Association Ltd., which was registered as a Company under the Companies Act in 1943. Subsequently the said Trust came to be registered as a Public Trust under Bombay Public Trust Act, 1950 on 13-7-1954 (herein after referred to as the Act). Then the Assistant Charity Commissioner prepared a scheme for the said Trust in 1967. Under this scheme Bishop is an ex-officio Chairman of the board of trustees. It appears some of the trustees and some of the beneficiaries and members of the Trusts were not satisfied with the working of the Trust. Some of them filed three scheme applications being 2/89, 11/90 and 12/91 under section 50-A(3) of the Act before the Assistant Charity Commissioner, making allegations against the Bishop and the board of trustees. It was alleged that the trustees are not acting in the interests of the trust. Allegation of mismanagement and diversion of funds were alleged against the Bishop and the trustees and it was further alleged that no elections were held for the board of trustees from the beginning. It is alleged that the Bishop has not accounted for the funds of the Trust and has been mismanaging the funds of the Trust. Then allegations were made about alienation of the Trust property without the permission of the Charity Commissioner. Therefore, these applicants prayed for amendment of the Trust Scheme of 1967.
After recording evidence and after hearing arguments, the learned Assistant Charity Commissioner by his order dated 10-4-1992 allowed the applications and made some amendments to certain clauses of 1967 scheme.
3. Being aggrieved by the order of the Assistant Charity Commissioner some of the trustees and others filed 5 applications under section 72 of the Act before the Additional District Judge. After hearing both the sides the learned Additional District Judge, Nasik by impugned common judgment dated 23-10-1996 allowed the application partly and modified the order of the Assistant Charity Commissioner regarding amendment of some of the clauses.
4. Being aggrieved by the order of the Additional District Judge, the various appellants have come up with these 10 appeals.
The learned Counsel appearing for the appellants have questioned the correctness and legality of the impugned order of the learned Additional District Judge. It was argued that the lower Court's order restoring the Bishop as ex-officio Chairman of the Trusts is illegal and not supportable from the materials on record. Then arguments were addressed regarding certain other clauses amended by the Additional District Judge. One of the learned Counsel appearing for one of the respondents in some of the appeals, Mr. A.G. Balkunde supported the arguments of the learned Counsel for the appellants partly and he made his own submissions regarding some of the amendments made by the Additional District Judge. The learned Counsel appearing for the Bishop and other respondents generally supported the impugned order of the learned Additional District Judge. Mr. P.N. Joshi the learned Counsel for the Bishop also contended that the present appeals are in the nature of a second appeal within the meaning of section 100 C.P.C. and therefore the High Court cannot interfere unless any substantial question of law arises for consideration and according to him no such substantial question of law arises and therefore the appeals are not maintainable and are liable to be dismissed. He fully supported the finding of the learned District Judge that the Bishop should be ex-officio Chairman of the Trust.
4. In the light of the arguments addressed before me, the points that fall for determination in these appeals are:-
(i) Whether the present appeals should be treated as second appeals within the meaning of section 100 C.P.C. and secondly the Court cannot go into the merits of the dispute between the parties unless there substantial question of law arises for consideration?
(ii) Whether the amendments made by the learned District Judge to the scheme of the Trust are sustainable or not?
(iii) What order?POINT NO. 1
5. Mr. P.N. Joshi, the learned Counsel for the Bishop contended that the Assistant Charity Commissioner passed the original order as a trial Court. Then the parties filed application before the learned District Judge under section 72(1) of the Act. Though it is styled as an application, it virtually is an appeal to the District Judge. Therefore it was argued that what the District Judge has decided under section 72(1) of the Act is a First Appeal. Even the learned Counsel for the appellants have no quarrel with the proposition and in fact there cannot be any dispute on this point. That though the words used are "an application" in section 72(1) of the Act, it is nothing but appeal against the original order of the Charity Commissioner. Then it was submitted that the present appeal filed under section 72(4) of the Act is registered as a first appeal. It is virtually a second appeal. If the matter before the District Judge should be deemed to be a first appeal though styled as an application, then there is no doubt that the appeal to this Court will be in the nature of a second appeal. So far there is no dispute between the parties.
The learned Counsel for the Bishop Mr. P.N. Joshi contended that if once an appeal in High Court is treated as a second appeal or in the nature of a second appeal, then the restrictions imposed in section 100 C.P.C. are attracted to this appeal and this Court cannot entertain the appeal nor can decide any point unless a substantial question of law is involved. But the learned Counsel for the appellants contended that the restrictions imposed in section 100 C.P.C. for a second appeal under the Code of Civil Procedure cannot be applied to a second appeal under the Act. Some decisions were cited at the bar on this point.
6. In Shri Govindrao Devabasappa Manthalkar by his heirs v. Apparao Devabasappa Manthalkar by his heirs and others, the learned Single Judge of this Court has pointed out that application before the District Judge is a first appeal and therefore the appeal to this High Court under section 72(4) of the Act becomes a second appeal and consequently, it must have all limitations like a second appeal under section 100 C.P.C.
The above view was followed by another learned Single Judge of this Court in another case Maqbul Ahmed Miya Girav v. Hidayatulla Baldi and another. A contrary view was taken by a learned Single Judge of this Court in a case reported in 1992 Mh.L.J. 230 Godawaribai wd/o Manilal Trivedi v. Rambhau Madhaorao Fating and others. There it was pointed out that though appeal to High Court is in the nature of second appeal, it does not become a second appeal under the Code of Civil Procedure within the meaning of section 100 C.P.C.
Question is as to which of the two conflicting views to be followed by me. At one stage, there was a discussion at the bar, whether the question should be referred to a larger Bench because of these conflicting views. Then it was argued that the later decision should prevail over the earlier decision.
I have heard lengthy arguments on the merits of the case spread over for 8 days. The litigation pertaining to this Trust has been going on for the last 7-8 years. There are allegations of mismanagement against the trustees. It is also admitted fact that elections have not been held in the Trust from the beginning. Even the learned Counsel for the Bishop who raised a question of maintainability of appeal alternatively submitted that if the Court does not agree with his contention that the present appeal lies only on a question of law, then, this Court may consider the appeals on both facts and law. I, therefore feel that it is not necessary to refer the question to a larger-Bench and the matter can be disposed of by me by adopting one of the two conflicting views which is in consonance with the provisions of the Act. Further, I also find that the point is concluded by decision of the Supreme Court, where similar question had arisen under a different Act. In my view the appeal under section 72(4) of the Act though it may be a second appeal under the Act, cannot and does not come within the meaning of second appeal under section 100 C.P.C. In my considered view the Act is a complete Code in itself and we have to interpret the Act without incorporating any provisions of the Code of Civil Procedure into the Act, unless the Act itself provides for the same.
7. The Act has provided different appeals to different authorities against the various orders passed by the Assistant Charity Commissioner, the Deputy Charity Commissioner, the Charity Commissioner, the Court under the Act and the High Court. The Act also provides different period of limitation for filing appeals under the act. When such an elaborate procedure is provided in the Act, both regarding forum of the appeal and the period of limitation etc., we cannot apply the general principles of Code of Civil Procedure or Limitation Act for appeals under the Act.
Let us make a brief reference to the provisions of the Act. The word "Court" is defined in section 2(4) of the Act means City Civil Court at Bombay city or District Court outside the Bombay city.
Change reports are to be submitted to the Assistant Charity Commissioner or Dy. Charity Commissioner and their orders are appealable to the Charity Commissioner under section 22(3) of the Act.
The Charity Commissioner can take suo-motu action against the trustees under section 41-D of the Act. Then aggrieved party may apply to the Court against the order of Charity Commissioner as provided in section 41-D(5) of the Act. We have already seen that the word used is "apply", it means appeal. Then against the order of the Court, an appeal is provided to the High Court under section 41-D(6) of the Act, as if it was a decree from which an appeal ordinarily lies.
Similarly, under section 41-E of the Act, the Charity Commissioner is given certain powers to pass orders of injunction, against that order an aggrieved party can apply to the Court and then under section 41-E(6) appeal lies to the High Court as if it is a decree appealable to the High Court.
Under section 47(2) of the Act, the Charity Commissioner is given powers to appoint a trustee or discharge a trustee. This order of Commissioner is made appealable directly to the High Court without approaching the District Court as provided in sub-section (5) of section 47.
There can be no dispute as far as appeal under section 47(5) of the Act is concerned, it would be a first appeal. There is only one order of the Charity Commissioner against which the appeal is provided to the High Court.
As far as the orders under section 41-E(6), 41-D(6) and section 72(1) of the Act are concerned, there is a first appeal to the District Judge, and then against the order of the District Judge appeal lies to the High Court. Therefore, appeals under those three sections are in the nature of second appeals to the High Court. But still the wordings used in respect of those second appeals and in respect of first appeal under section 47(5) of the Act are concerned, the language used is the same.
In section 47(5) of the Act, the words used are the order of the Charity Commissioner shall be deemed to be a decree of the Court and an appeal shall lie to the High Court.
Similarly, in section 41-D(6), it is provided appeal lies to the High Court as if the decision of the District Court was a decree, from which appeal ordinarily lies to the High Court. Similar words are mentioned in 41-E(6) and section 72(4) of the Act. That means the Act has used similar or identical words both in respect of first appeal provided in section 47(5) of the Act and Second Appeal provided under other sections including section 72(4) of the Act. This clearly shows that the Act is not thinking in terms of Second Appeal within the meaning of section 100 C.P.C.
For example, there are some provisions under the Act where against the order of Assistant Charity Commissioner appeal lies to Charity Commissioner and against his order appeal lies to District Judge. Against the order of the District Judge appeal lies to the High Court. In such a case, the order of the Assistant Charity Commissioner will be the order of the trial Court. Then, it will be first appeal to the Charity Commissioner, second appeal to the District Judge and third appeal to the High Court. Then, how the third appeal should be heard by the High Court. In the Code of Civil Procedure, there is no provision for third appeal to the High Court. Either there is first appeal or second appeal to the High Court, but no third appeal to the High Court. If we apply section 100 C.P.C. to second appeal, then there is no other provisions to say as to how the third appeal should be heard by the High Court. Therefore, what we find is that the Act itself has provided separate forum and different appeals and hence, we are not to be guided by the provisions of C.P.C. to decide as to how and in what manner the appeal should be heard by the High Court.
8. Then we come to section 56 of the Act where the Court is given powers to pass an appropriate order regarding "Cypress". Then against the order of the Court appeal is provided in section 56(2) of the Act stating that the order of the Court shall be deemed to be a decree of such Court and that appeal shall lie to the High Court. We find identical word used in respect of second appeal also in section 56(2) and other sections mentioned above. That means, advisedly the Legislature has used same words both regarding First Appeal and the second appeal to the High Court and therefore, both the First Appeal and Second Appeal will have to be decided by the High Court without having any restrictions on it's powers. There cannot be any dispute that as far as the first appeal is concerned the powers of the High Court are unlimited and unrestricted. But as far as the second appeal under C.P.C. are concerned, the High Court can entertain the appeal, only on a substantial question of law. But no such restriction are found on the powers of the High Court in a second appeal provided under the Act.
9. As far as applicability of the Code of Civil Procedure to the authorities under the Act are concerned, there are two sections, which are section 73 and section 76.
Section 73 provides that the provisions of Civil Procedure Code are applicable to officers conducting inquiries under the Act, only to the extent of proof of facts by affidavit, summoning witnesses, discovery and inspection and issuing of Commission. Only few provisions of the C.P.C. are made applicable to inquiries conducted by the officers under the Act.
10. Section 76 reads as follows:-
"Save in so far as they may be inconsistent with anything contained in this Act the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the Court under this Act."
Here C.P.C. is made applicable only to all the proceedings before the "Court" under the Act. The Court is defined in section 2(4) of the Act meaning either the City Civil Court at Bombay or District Court outside Bombay City. Therefore C.P.C. is made applicable only to the proceedings before the City Civil Court or the District Court. It cannot apply to the appeals filed before the High Court. Section 76 does not say that C.P.C. is applicable to the Court and the High Court.
We may also make reference to section 79(B) of the Act. It provides that the costs and expenses regarding any proceedings in any appeal, suit or application in any Court including the High Court shall be in the discretion of the Court.
Therefore, we find that the Legislature has used the words "including High Court" in section 79(B) of the Act. We do not get such words of including High Court in section 76 of the Act.
Section 72(4) of the Act, under which the present appeals are filed reads as follows:-
"An appeal shall be to the High Court, against the decision of the Court under sub-section (2) as if such decision was a decree from which an appeal ordinarily lies."
This is the section which provides for appeal and it does not contain any limitation or restriction in the powers of the High Court in entertaining or deciding such an appeal. How is it possible to read section 76(4) as "subject to section 100 C.P.C." or "subject to provisions of C.P.C.".
11. In this connection we may refer to section 96 of C.P.C. which provides for first appeal, where the words used are "an appeal shall lie from every decree passed by any Court exercising original jurisdiction..................".
Therefore, we find that the wording of section 72(4) of the Act are in the nature of providing first appeal against original decree as mentioned in section 96 of C.P.C.
As far as second appeal under C.P.C. is concerned, it says "save as otherwise expressly provided in the body of this Court or by any other law for the time being in force, an appeal shall lie to the High Court.................". Though second appeal are provided under section 100 C.P.C., it is subject to provisions in C.P.C. or any other law for the time being in force. If an appeal provided in other law does not provide any such condition about exercise of powers by the High Court, then we cannot include restrictions or limitations of second appeals under C.P.C. to second appeals under different enactments.
12. We have already seen that the learned Single Judge of this Court in the case of Godawaribai mentioned above has taken a view that appeal to High Court under section 72(4) is not subject to limitation of second appeal under section 100 C.P.C.
In this connection I may also refer to judgment of a learned Single Judge of the Gujarat High Court reported in XVIII G.L.R. 488 Miya Mohamed Abdulkarim Jariwala and anr. v. Collector of Surat and others, (By His Lordship Justice A.M. Ahmadi, as he then was, presently the Chief Justice of India). He also took the view that there is nothing to limit the powers of the High Court in section 72(4) of the Act, unlike the limitation provided in second appeal under section 100 C.P.C. It was pointed out that the limitation provided in section 100 C.P.C. cannot be read into section 72(4) of the Act.
I may also make reference to the latest book of Mulla on the Code of Civil Procedure, 1995 Edition, Vol. I, page 711, where it is stated as follows:-
"In a recent decision the High Court of Punjab and Haryana has held that this section does not affect the provisions as to second appeals contained in special or local laws, e.g., Punjab Courts Act or any other law for the time being in force on the subject of second appeals."
In A.I.R. 1978 Punjab & Haryana, 137 Ganpat v. Smt. Ram Devi and others, it has been held that a second appeal under section 41 of the Punjab Courts Act is in no way affected or curtailed by the provisions of second appeal under section 100 C.P.C.
Then, I may make a reference to a decision of the Apex Court (State of Himachal Pradesh v. Maharani Kam Sundri), that was a case where a second appeal had been filed before the High Court under the provision of Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953. A point was raised before the Apex Court that the High Court could not have gone to the question of facts while deciding a second appeal in view of section 100 C.P.C. The Apex Court rejected this argument with the following observations:-
"At this stage we would like to point out that the limitations on the power of the High Court to interfere with findings of fact as mentioned in section 100 of the Code of Civil Procedure are not applicable to the present case. In view of the wider scope of section 104 of the Act the High Court was entitled to reappraise the evidence and come to its own findings, which has been rightly done in this case."
The Apex Court has clearly pointed out that the appeal provision in section 104 of the said Himachal Pradesh Act is wider than section 100 C.P.C. Similarly, we find here, section 72(4) of the Act which provides for an appeal to the High Court is wide and general without any limitation unlike section 100 C.P.C.
13. We have already seen the conflicting views of two learned Single Judges of this Court on the point under consideration. Now the question is as to with which decision I should follow. A guideline is given by a Full Bench decision of this Court reported in 1995(2) Bom.C.R. 640 Kamleshkumar Ishwardas Patel v. Union of India and others, where it is pointed out that where there are conflicting decisions of equal authorities, when they are cited before another Judge, he can follow either of the ruling, which he found to be better in point of law, than the other.
In my view the decision in Godawaribai's case is in consonance to the provisions of the Act, which I have discussed above. Further, I have referred to the decision of the Apex Court in , where it has been pointed out that the power of second appeal under the special Act is wider than the second appeal under section 100 C.P.C. In view of the decision of the Apex Court, it has to be held that the wording of section 72(4) of the Act is wider, uncontrolled and unlimited than the powers of second appeal under section 100 C.P.C. Hence, in view of the authoritative pronouncement of the Apex Court, I have no hesitation to hold that the power under section 72(4) of the Act is not limited in any way by invoking section 100 C.P.C. Since, we are concerned with a special statute, with special provisions of appeal and special forum, we need not be guided by the limitations of a second appeal under section 100 C.P.C. Hence, there is no necessity to refer the point to a Division Bench in view of the decision of the Apex Court on the point and also in view of the guideline given by the Full Bench decision of this Court referred to above.
14. For the above reasons my finding is that the second appeal under section 72(4) of the Act lies both on facts and law and not limited to substantial question of law like the second appeal under section 100 C.P.C. Point No. 1 answered accordingly.
POINT NO. 215. The appellants are challenging some of the amendments made by the learned District Judge in the impugned order. I will consider only those amendments made by the District Judge, which were questioned before me at the time of arguments. Some of the amendments made by the District Judge were not questioned before me at the time of arguments. There was also submissions on behalf of the some of the respondents that one of the appellants Mr. Salvi and one of the respondents Mr. Balkundi had conceded to certain points like Bishop being ex-officio Chairman before the Asst. Charity Commissioner and therefore, they cannot urge any contention contrary to that stand. Even if this argument is accepted, there are other appellants in these appeals, who are not parties to those concessions made either by Mr. Salvi or Mr. Balkundi and therefore, they are entitled to question the order of the learned District Judge on merits.
Another submission made by the respondents was that a part of the scheme as amended by the Assistant Charity Commissioner has become final in view of the dismissal of the appeal filed by Mr. Balkundi by the learned Additional District Judge by order dated 27-4-1992 in Civil Misc. Application No. 165/92 and therefore the same cannot be canvassed in these appeals. After going through the order dated 27th April, 1992 of the learned Additional District Judge, I find that none of the points canvassed before me in these appeals pertain to anything that was confirmed by the learned Additional District Judge in his order dated 27th April, 1992 in Civil Misc. Appeal No. 165/92. Hence, that order has nothing to do with the points of dispute now raised before me and which are being disposed off by this judgment.
16. Now I will consider points urged on behalf of the appellants in respect of some of the amendments made by the learned District Judge one by one.
The first point of dispute between the parties is about the area of operation of theTrust.
As per the scheme of 1967 the area of operation of the Trust was the Districts of Dhulia, Jalgaon, Nasik, Ahmednagar, Aurangabad, Parbhani, Beed, Nanded, Jalana, Shirur and Ahwa-.
As per the order of the Asst. Charity Commissioner the area of operation has been declared to be the whole of India.
The learned District Judge by his impugned order has restored the operation of the Trust as per scheme of 1967 and set aside the amendment made by the Asst. Charity Commissioner.
It was argued before me on behalf of the appellant and Mr. Balkundi that the area of operation should be either the whole of India or at least the State of Maharashtra and it need not be confined to Districts mentioned by the learned District Judge. On behalf of the respondents, it was argued that the order of the learned District Judge on this point does not suffer from any infirmity and hence, it should not be interfered with.
17. In my view the question of area of operation should be left to the trustees and members of the General Body of the Trust. No evidence has been let in before the Court to show as to what should be the area of operation and whether the area should be increased? In the absence of such evidence the area of operation as mentioned in the 1967 scheme should be maintained. The area mentioned in the 1967 scheme coincides with the area of Nasik Diocese District. If the area of operation is made whole of India, then we will be enlarging this scope of becoming members and it may be difficult to hold elections. I therefore feel that for the present the Nasik Diocesan District should be the operational area as mentioned in 1967 scheme and as confirmed by the learned District Judge giving liberty to the members of the general body of the Trust and Board of trustees to express their opinion on this aspect and then they can move the Charity Commissioner for amendment of this scheme in the light of opinion of the Board of trustees and the General Body meeting. Till such time the existing area of operation under the 1967 scheme confining it to the Nasik Diocese District should be left intact.
The learned District Judge's finding on this point is fully justified and no ground is made out to interfere with the same. However, this finding is without prejudice to the right of the Board of trustees and the general body to express their opinion about enlarging the area of operation and then the Trust can move the Charity Commissioner for amendment of this clause as per opinion of the general body. It is open to the Charity Commissioner to hear all concerned and then decide about the extending the area of operation or not.
18. Next ground of attack is about membership of the Trust. The Assistant Charity Commissioner provided one of the categories of the members as Church Member, meaning thereby that every Church should nominate one member as a member of a Trust. The learned District Judge felt that Church member should depend upon the total members of each Church. He therefore held that if the Church has 500 members, then it can nominate one member to the Trust, but if there are more than 500 members then the Church should nominate two members to the Trust.
According to the appellants this clause amended by the District Judge is not correct, it should be restored to the original position of each Church having one member as done by the Assistant Charity Commissioner. The learned Counsels appearing for some of the respondents supported the amendment made by the learned District Judge.
19. In my view, there is nothing wrong in principle of a bigger Church having two members and of a smaller Church of 500 members or below should be having only one member. It is not a case of a big Church having more representation at the rate of one member per each 500 members of the Church. In other words it is not a case of Church having 5000 membership has to nominate 10 members to the Trust. If the total membership of the Church is less than 500, then the Church can nominate only one member and if the total membership is above 500, then the church can nominate two members. I do not find any illegality or infirmity in the amendment done by the learned District Judge. I, therefore, confirm the finding of the learned District Judge on this point. However even on this point, it is open to the general body to express its opinion and seek amendment of the membership clause in the scheme of the Trust and then it is open to the Charity Commissioner to decide that question one way or other after knowing the opinion of the general body.
20. The next objection to the order of the learned District Judge is about the qualification for becoming a member of the Trust.
According to the learned Asst. Charity Commissioner any person "belonging to Christian community having origin of Anglican" can become a member of the Trust.
The learned District Judge amended this clause as any person "who is the communicant member of the Church."
Now the dispute between the parties is whether we should retain the definition given by the Assistant Charity Commissioner or the definition given by the District Judge or whether there should be any other change.
Though the learned Asst. Charity Commissioner has used the word Anglican Church, it is now admitted before me that the said word has now become obsolete, since the Indian Churches are not governed by Anglican Church meaning there by the Church of England. Therefore, the amendment suggested by the learned District Judge to omit the word origin of Anglican appears to be well founded. But he has used the word communicant member of the church. It is argued before me that a Christian can become a communicant member, if he undergoes some special religious ceremony. The learned Counsels for the appellants pointed out that when there is dispute between a Bishop and any of the Christians, it is likely that the Bishop or the Church authority may decline to perform the religious ceremony to make a person as communicant member and therefore that clause may not be retained.
21. Even if we retain the definition suggested by the District Judge, it may not solve the problem. The ceremony of making Christian a communicant member applies to both Protestants and Roman Catholics. We are concerned with Christians who are Protestant Christians. In order to avoid confusion and to see that the Trust is open only to Protestant Christians, the definition given by the District Judge should be modified. I, therefore, amend Clause 5 as "belonging to Christian community and a member of any of the Churches in the Diocese of Nasik District. Therefore, the order of the District Judge is modified to that extent.
22. Next and the most serious point of dispute between the parties is as to who should be the Chairman of the Board of trustees.
According to the Asst. Charity Commissioner, the Chairman should be elected from among the Trustees. But according to the learned District Judge, the Bishop should be ex-officio Chairman.
The learned District Judge has taken into consideration history of the Trust and original scheme of 1967 and importance of institution of Bishop and therefore came to the conclusion that the Bishop should be ex-officio Chairman.
The learned Counsels for the appellants have seriously objected to this clause. Their contention is that when the Board of trustees are elected by the members of the Trust, then Chairman also should be elected by the elected trustees and the Bishop cannot be thrusted as ex-officio Chairman.
On the other hand the learned Counsels for some of the respondents including the Bishop contended that since the Trust in question is a religious-cum-charitable Trust, a presence and guidance of Bishop is necessary and therefore, the Bishop should continue as an ex-officio Chairman of the Trust.
23. When once we have provided that the trustees should be elected, then as natural corollary the Chairman also be elected from among the trustees. It may be that in olden days under 1943 provisions or even earlier there was provision for the Bishop being an ex-officio Chairman. We must bear in mind that India has adopted a democratic way of living under the Constitution and elected Government or elected body is basis of the democratic principle. Then idea of an ex-officio Chairman is an outdated idea. In the modern concept particularly in view of our Country having adopted a democratic form of Government, it is essential that the same principle should apply to all public institutions. We are concerned with a public trust and not a private Trust. In the case of Public Trust, particularly under the Bombay Act, many powers are given to the Charity Commissioner and other Officers to supervise and control the activities of the Trust. Since, it is a public Trust, it is desirable that the Trust should be managed by an elected body of trustees including the elected Chairman.
24. The Trust has three objects, of which religious aspect is one and the other are running educational institutions, hospitals and hostels etc. We have already noticed that when the previous Bishop was in office as an ex-officio Chairman of the Trust, serious allegations were made about misappropriation and misapplication of funds of the Trust. We know that the Bishop is the religious head of the diocese, why should such a person holding a religious office should be subjected to allegations of misappropriation etc. at the instance of some members. We should not allow the office of the Bishop to be treated with contempt or to be made subject of criticism by the members of the Trust. We must also bear in mind that the Bishop in this Nasik Diocese has number of Churches under his control, nearly more than 100 Churches. In the very nature of things, the Bishop being religious head of Diocese has to look after the religious activities of more than 100 Churches in his District. He may not have sufficient time to attend to the affairs of the Trust. A Chairman of the Trust is the Chief Executive of the Trust and will have to take active part in running the Trust. Having regard to his religious duties as the Head of Diocese, the Bishop may not find sufficient time to attend to the work of the Trust. The Trust is now running 4 primary schools, two secondary schools, one college and three hospitals. How can we expect the Religious Head of Diocese to attend to various activities of a Trust in particular about running six schools and hospitals.
We may also notice that Rt. Rev. Dr. A. George Ninan is the present Bishop of Nasik. He is now ex-officio Chairman of the Trust as per 1967 Scheme. A copy of his letter dated 29th July, 1996 is produced alongwith the reply affidavit in Civil Application No. 7002/96 in First Appeal No. 1587/96, which is one of the appeals, which I am disposing of to-day. In this letter, the Bishop says that the trustees will have to take care of the property of the Trust, carry on day to day administration, manage the finances etc. Then, he mentions as follows:-
"I find it very difficult to attend to this single handedly. There are other important matters which need my attention in the Diocese. I also have to play some role in the C.N.I. as well as in the international Church circles. Considering these factors I have decided to appoint an Advisory Committee to deal with...............matters."
Then he has put 9 clauses in that letter. The Advisory Committee has been constituted to deal with all finances, all property matters, all legal matters etc. It is therefore seen that the present Bishop himself has put it in writing in black and white that it is very difficult for him to manage the day to day affairs of the Trust since, he has to attend to the other works as Bishop etc. He has, therefore, appointed Advisory Committee to assist him and also to attend to certain works. This clearly shows that the Bishop cannot be expected to attend to the day to day affairs of the Trust. He being the religious head of the diocese, will have lot of work and he cannot be burdened with numerous duties as a Chairman of the Trust.
25. We may also notice that Bishop is a transferable person. One Bishop may take interest in the Trust matters, in addition to his religious duties as a Bishop. Another Bishop may be only interested in the religious work as a Bishop and may not be interested in the work of the Trust. Another Bishop may have no experience in administrative matters, in finance matters etc. to look after the trustees work. Another Bishop may not be interested to do any non-religious work at all. He may be interested only in religious matters and not in secular matters. If once we make a Bishop as ex-officio Chairman, then the post will have to continue even if a particular Bishop does not take interest in the Trust affairs or has no time to attend to the Trust matters or has no inclination in non-religious matters etc. The Trust work should not suffer in such a situation. Therefore, it is necessary that a person should be made Chairman, who is interested and who is willing to act as Chairman of the Trust.
If there is an elected Chairman, he will be responsible and accountable to the Board of trustees who have elected him as a Chairman. But if he is an ex-officio chairman, he will not be accountable or responsible to the Board of trustees. He can even ignore them. The trustees cannot take any action against him because he is ex-officio Chairman. Hence, in order to make the Chairman responsible and accountable to the Board of trustees, it is desirable that he should be an elected Chairman.
As already stated, the Bishop, in view of his numerous duties as a religious head of the District may not find time to devote his attention to the affairs of the Trust, which is running many educational institutions and hospitals. If the Chairman does not take interest, then, the institution may suffer. As already seen, how the present Bishop Rt. Rev. Dr. A. George Ninan has himself stated that he is unable to look after the Trust affairs for want of time and is appointing an Advisory Committee.
Since, the Trust in question has one of the objects of religious nature, the guidance of the Bishop is necessary for the Trust. Being religious head of the diocese, his very presence in the Trust will be of some use and guidance to the trustees. This can be achieved by making the Bishop as one of the ex-officio trustees. He can attend meeting of the Trust as an ex-officio trustee and give his valuable advice and guidance. He will not be the Chairman of the Trust, but he can be a Member of Board of trustees by virtue of his position as a Bishop of Diocese. The Christians have eat confidence and Trust and also reverence in the Bishop, who is the religious head of the diocese. Therefore, his presence would be very necessary in the Board of trustees. This can be taken care by making the Bishop as an ex-officio Member of the Trust Committee. Once the Bishop becomes an ex-officio Member of the Trust Committee, then he will be entitled to stand for election for the post of the chairman, to be elected from among the trustees. If he can muster support of the trustees, then the Bishop can be elected as Chairman of the trustees. As already stated some Bishops may not be interested in becoming Chairman, in which case the trustees can elect a willing person as a Chairman. Therefore, the amendment made by the learned District Judge making Bishop as ex-officio Chairman of the Trust is hereby set aside. However, the Bishop of Nasik Diocese shall be an ex-officio member of the Board of trustees with a right to stand for election of the Chairman. However, the Chairman of the Trust shall be elected from among the board of trustees including an ex-officio trustee, who is the Bishop of the diocese.
26. I have already omitted the word "communicant" in the qualification of person to become member of the Trust. There should be consequent amendment in the qualification for person standing for election as trustee. Hence, Clause 13(c) be amended as "a person being a member of any of the Churches in the Nasik Diocese. Subject to these amendments specifically interfered with by me, the other amendments made by the District Judge are confirmed.
27. The learned Counsel appearing on both the sides submitted that irrespective of the result of the appeals, whether being allowed or dismissed, directions should be given for elections and that some interim arrangement should be made to look after the Trust till elections are held.
We have seen that 7 trustees have been appointed as ad-hoc trustees by this Court by order dated 20-9-1995 in Writ Petition No. 3303/95. In my view the said 7 ad-hoc trustees as mentioned in that order should continue till elections are held and new trustees take charge. I also feel that since there is dispute even among the ad-hoc trustees, there should be an out sider and impartial acting Chairman to conduct the meetings of the trustees and to attend the day to day administration and to conduct free and fair elections. I feel that the Asst. Charity Commissioner at Nasik, who is a Judicial Officer, should be appointed as acting Chairman. The said acting Chairman shall attend the day to day administration of the Trust, preside over the meetings of the ad-hoc trustees and then take necessary steps to conduct free and fair elections of the Board of trustees within a period of 4 months from to-day, then preside over first meeting of the newly elected Board of trustees and then arrange for the election of the Chairman of the Trust and then hand over charge to the newly elected Chairman.
28. The Assistant Charity Commissioner shall take charge immediately as acting Chairman on the date of receiving copy of this order. He shall hold first meeting of the ad-hoc trustees within 15 days from the date of receipt of this order. He shall prepare a voters' list containing all the existing members of the Trust as on to-day. He shall not allow enrolling of any new member till the elections are held. As far as Church members are concerned, he must find out whether all the Churches have nominated their representatives or not, otherwise he will write to all the Churches to nominate one or two members as representing a particular Church depending upon the membership of the Church. (One representative if there are 500 members in a Church and two representatives if the Church has more than 500 members). Those Church members are also entitled to vote in the election of the Board of trustees in addition to individual members who have enrolled themselves as members by paying necessary subscription as per scheme.
The acting Chairman and ad-hoc trustees are entitled to look after the day to day administration of the Trust and for holding elections and handing over charge to the newly elected body. This ad-hoc committee will have no powers of taking any policy decisions or about alienating the property of the Trust.
29. In the result all the 10 appeals are allowed partly as follows:-
(i) In Clause (5) of the scheme, the basic qualification for becoming a member of the Trust is that he should a person "belonging to Christian community and the member of any of the Churches in the Diocese of Nasik District". Clause (5) be amended accordingly.
(ii) In Clause 11 the amendment made by the learned District Judge making the Bishop of Nasik as an ex-officio Chairman of the Trust is set aside. However, Clause 11 be amended as follows :-
The Bishop of Nasik shall be an ex-officio Trustee. All other trustees are to be elected from the members of the Trust. The Chairman shall be elected from the trustees, including an ex-officio trustee. The Bishop who is an ex-officio trustee is also entitled to stand for election for the post of Chairman.
(iii) In confirmity to amendment of Clause (5) in Clause 13(c), the basic qualification of a trustee shall be amended as a person "belonging to Christian community and the member of any of the Churches in the Diocese of Nasik District".
(iv) Subject to the above amendments suggested in this order, the order of the District Judge in all other respects stands confirmed.
(v) Seven ad-hoc trustees appointed by this Court as per order dated 20-9-1995 in Writ Petition No. 3303/95 namely (1) Rt. Rev. Dr. A. George Ninan, (2) Mr. Charles B. Battise, (3) Mr. Nandkumar Eliya Ranbhise, (4) Mr. Vilas John Lokhande, (5) Mr. Vinayak Kamlakar Pandit. (6) Mr. Pramod Vijay Nirmalkar and (7) Mr. A.G. Balkundi, are continued with Assistant Charity Commissioner, Nasik being hereby appointed as acting Chairman. The acting Chairman and the ad-hoc trustees shall hold elections within a period of 4 months from to-day and hand over a charge to the newly elected Board of trustees and do such other duties and exercise such powers as mentioned in paras 37 and 38 of this judgment.
(vi) Copy of this judgment be forwarded to the Asst. Charity Commissioner, Nasik for information and immediate compliance and to take follow up action as directed by this judgment.
(vii) In view of disposal of the appeals, all the 10 Civil Applications namely C.A. Nos. 7002/96, 7148/96, 7149/96, 7150/96, 7151/96. 474/97, 475/97, 473/97,470/97 and 471/97 do not survive and accordingly disposed of.
(viii) In the circumstances of the case there will be no order as to costs in these appeals.
(ix) Certified Copy expedited.