Karnataka High Court
Paschim Vibhag Shikshana Mandal vs Paschim Vibhag Shikshana Mandal on 27 August, 2024
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
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WA No.100006 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF AUGUST, 2024
PRESENT
R
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL
WRIT APPEAL NO.100006 OF 2022(GM-R/C)
BETWEEN:
IN WP.NO.77680/2013:
PASCHIM VIBHAG SHIKSHANA MANDAL
BIJAGARNI-591108
TALUK & DIST. BELGAUM
TRUST REGISTERED UNDER THE
BOMBAY PUBLIC TRUST ACT, 1950
REPRESENTED BY ITS PRESIDENT
SRI. TARACHAND MONAPPA JADHAV
AGE. 73 YEARS, OCC. AGRICULTURE,
Digitally BIJAGARNI-591108,
signed by
JAGADISH T
R
TALUK & DISTRICT. BELGAUM.
Location:
High Court
Of Karnataka,
Dharwad IN WP.NO.81667/2013:
Bench
PASCHIM VIBHAG SHIKSHANA MANDAL
BIJAGARNI,
TALUK & DISTRICT: BELGAUM 590001
BY ITS SECRETARY,
DAMODAR DATTU MORE
IN WP.NO.101972/2017:
THE PASCHIM VIBHAG SHIKSHANA MANDAL
BIJAGARNI, TALUK & DISTRICT: BELGAUM
BY ITS SECRETARY, DAMODAR DATTU MORE,
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WA No.100006 of 2022
AGE. 55 YEARS, OCC. AGRICULTURE,
R/AT. BIJAGARNI, TQ. & DIST. BELGAUM. 590001.
... APPELLANTS
(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)
AND:
IN WP.NO.77680/2013:
1. PASCHIM VIBHAG SHIKSHANA MANDAL
AT POST BIJAGARNI 591 108
TALUK AND DISTRICT. BELGAUM
REPRESENTED BY ALLEGED PRESIDENT
SRI GUNDU SONU BHASKAR
AGE. 73 YEARS, OCC. AGRICULTURE,
BIJAGARNI- 591 108
TALUK AND DISTRICT. BELGAUM.
2. THE REGISTRAR OF SOCIETIES
AND DISTRICT REGISTRAR
BELGAUM-590 001.
IN WP.NO.81667/2013:
1. PASCHIM VIBHAG SHIKSHAN MANDAL
BIJAGARNI,
TALUK & DIST. BELGAUM-590001
BY ITS PRESIDENT
SRI. GUNDU SONU BHASKAR
2. PASCHIM VIBHAG SHIKSHAN MANDAL
BIJAGARNI,
TALUK & DISTRICT: BELGAUM 590001
BY ITS SECRETARY
SRI. ARJUN KRISHNA NILAJKAR
3. THE REGISTRAR OF SOCIETIES AND
DISTRICT REGISTRAR, BELGAUM,
D.C.COMPOUND, BELGAUM. 590001.
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WA No.100006 of 2022
IN WP.NO.101972/2017:
1. THE BLOCK EDUCATION OFFICER (RURAL),
CHAVAT GALLI, BELGAUM. 590001.
2. PASCHIM VIBHAG SHIKSHAN MANDAL
BIJAGARNI, TALUK & DISTRICT: BELGAUM
A SOCIETY REGISTERED UNDER THE KARNATAKA
SOCIETIES REGISTRATION ACT, 1960,
REP. BY ITS PRESIDENT
SRI. GUNDU SONU BHASKAR
AGE. 75 YEARS, OCC. RETIRED,
R/AT. BIJAGARNI,
TQ. & DIST. BELGAUM. 590001.
3. ARJUN S/O. KRISHNA NILAJKAR,
AGE. 70 YEARS, OCC. RETIRED,
SECRETARY, PASCHIM VIBHAG SHIKSHAN MANDAL
BIJAGARNI, R/AT 831/2, RAILWAY GARTE,
TILAKWADI, BELAGAVI 590006.
... RESPONDENTS
(BY SRI. J.M. GANGADHAR, AAG FOR SRI. V.S. KALASURMATH,
HCGP FOR R2 IN WP.NO.77680/2013, R3 IN
WP.NO.81667/2013, R1 IN WP.NO.101972/2017,
SRI. SANJAY S. KATAGERI, ADVOCATE FOR R2 & R3 IN
WP.NO.101972/2017, R1 IN WP.NO.77680/2013,
R1 & R2 IN WP.NO.81667/2013)
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING TO, A) THE ORDER OF THE
LEARNED SINGLE JUDGE SO FAR AS IT RELATES TO
DISMISSING OF THE WRIT PETITION NOS.77680/2013 AND
101972/2017 MAY KINDLY BE SET ASIDE AND THE WRIT
PETITION NOS.77680/2013 AND 101972/2017 DTD 1/12/2021
MAY KINDLY BE ALLOWED, IN THE INTEREST OF JUSTICE AND
EQUITY. B) THE ORDER OF THE LEARNED SINGLE JUDGE DTD
1/12/2021 SO FAR AS IT RELATES TO ALLOWING OF THE WRIT
PETITION NO.81667/2013 MAY KINDLY BE DISMISSED, IN THE
INTEREST OF JUSTICE AND EQUITY.
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WA No.100006 of 2022
THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT ON
21.08.2024 COMING ON FOR PRONOUNCEMENT, THIS DAY,
KRISHNA S.DIXIT J., DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT) This appeal arises from a common judgment dated 01.12.2021, whereby a learned Single Judge of this court has dismissed appellants' two cases i.e., W.P.Nos.77680/2013 & 101972/2017 and allowed W.P.No.81667/2013 filed by the contesting respondent- Society, represented by its President Sri.Gundu Sonu Bhaskar and its Secretary Sri.Arjun Krishna Nilajkar. 1.1 The operative portion of the above common judgment for the purpose of ease of understanding is reproduced below:
"23.1.1. WP No.77680/2013 and WP No.101972/2017 are dismissed;
23.1.2. WP No.81667/2013 is allowed a certiorari is issued the order dated 04.03.2013 by the learned Principal District Judge, Belgaum in Miscellaneous Petition No.295/2012 as per Annexure-P and order dated 09.07.2013 on I.A.No.II in Miscellaneous Case -5- WA No.100006 of 2022 No.295/2012 as per Annexure-S are hereby quashed.
23.1.3. WP No.101436/2018 is disposed with a direction that the society forward the claim as regards the amounts due to respondent No.7 therein to the concerned at te authorities and to ensure that the due payments are made to respondent No. 7.
23.1.4. The District Registrar is directed to conduct an enquiry into the affairs of the Society under Section 25 of the KSR Act, 1960 and submit a report as regards the accounts maintained by the Society, management of the Society by exercising all powers under Section 25 of the KSR Act, 1960 within 90 days of the receipt of this order.
23.1.5. The Additional Registrar General of Dharwad Bench is directed to forward a copy of this order to the Jurisdictional District Registrar."
II) FACTS IN BRIEF:
GENERAL FACTS LEADING TO MULTIPLE CASES:
a) Appellant-Trust (hereafter 'Trust') is registered under the erstwhile Bombay Public Trusts Act, 1950 (hereafter '1950 Act') on 20.02.1986, in the office of Assistant Charity Commissioner, Belagavi. It is formed for imparting education. It runs two educational institutions, one in Belagavi Taluka of Karnataka and another in Chandgad Taluka of Maharashtra. The 1950 Act came to be repealed by the Hindu Religious Institutions and Charitable Endowments Act, 1997 w.e.f. 1.5.2003. In view of repeal, a -6- WA No.100006 of 2022 non liquet position (field not occupied by legislation) arose so far as regulating non-religious Trusts are concerned.
b) The non liquet position created some difficulty in the matter of administration of charitable educational Trusts. A few entities of the kind had made some representation to the government seeking clarification as to which Act they would be governed by, post repeal of 1950 Act. The Under Secretary to Revenue Department of Government of Karnataka, therefore issued a Circular dated 19.03.2004 to the effect that such Trusts would be governed by the provisions of the Charitable and Religious Trusts Act, 1920 (hereafter '1920 Act') by virtue of section 85(2) of 1950 Act.
c) One Mr.Gundu Sonu Bhaskar, who was the Chairman of the Trust formed a society with ditto nomenclature i.e., 'PASCHIM VIBHAG SHIKSHANA MANDAL' (hereafter 'Society') and got it registered on 01.09.2012 under the provisions of the Karnataka Societies Registration Act, 1960 (hereafter '1960 Act'). The properties of the Trust have been shown to be of the Society. The Trust on coming to -7- WA No.100006 of 2022 know of the same, objected to the same and that having not yielded any positive result because of Registrar's order dated 22.02.2013.
III) THUMB NAIL DESCRIPTION OF THREE WRIT PETITIONS:
a) Writ Petition No.77680/2013: This petition is filed by the appellant-Trust represented by its President Tara Chand Monnappa Jadhav, calling in question Registrar's order dated 22.02.2013 whereby the registration of the respondent-Society with ditto name and properties of the Trust vide order dated 1.9.2012 came to be revived after disposing of the remand made in earlier W.P.No.70187/2012 disposed off on 15.01.2013. This challenge is negatived.
b) Writ Petition No.81667/2013: This petition is filed by the Society, represented by its President Mr.Gundu Sonu Bhaskar and the Secretary Sri.Arjun Krishna Nilajkar, seeking quashment of Principal District Judge's order dated 4.3.2013 passed in Trust's Misc. Petition No.295/2012 and another order dated 9.7.2013 passed on Society's I.A.No.II. -8- WA No.100006 of 2022
The approval as sought for by the Trust was accorded and subsequently, the application filed by the Society for its recall has been negatived.
c) Writ Petition No.101972/2017: Misc. Application No.118/2015 was filed by the Trust under sections 3 & 7 of 1920 Act, for the grant of approval of newly formed Managing Committee for the period between 5.6.2015 and 5.6.2020; the request for approval was rejected by the Principal District Judge vide order dated 11.01.2017. This had been challenged by the Trust in the above writ petition. The challenge had been rejected.
IV) On the basis of pleadings of the parties, learned Single Judge had framed as many as the following ten principal questions:
"(1) What is the scope and effect of Section 3 and 7 of the Hindu Religious and Charitable and Religious Trust Act 1920?
(2) To what institutions was the Bombay Public Trust 1950 Applicable?
(3) What is the effect of bringing into force the Karnataka Hindu Religious Institutions and Charitable Endowment Act, 1997?
(4) What is the effect of the Repeal of the BPT Act?-9- WA No.100006 of 2022
(5) Whether on the repeal of the Bombay Public Trust Act, the Trust registered under the said Act, would have to be registered under the Hindu Religious and Charitable and Religious Trust Act 1920 or under the Karnataka Society Registration Act 1960?
(6) In the present case, whether the registration of the society under the Karnataka Society Registration Act 1960 is proper or not?
(7) Whether the Order passed in Civil Misc.No.295/2012 confirmed in the review petition is proper and correct?
(8) Whether the Order passed in Misc.P.No.118/2015 is proper and correct?
(9) Whether respondent No.7 in WP No.101436/2018 could be entitled to his salary, if so from whom?
(10) In the above circumstances, whether there is any enquiry which is required to be conducted in terms of Section 25 of the Karnataka Societies Registration Act, 1960?"
The above questions by and large came to be answered against the appellant-Trust. Aggrieved thereby, this appeal has been preferred and now placed at our hands for disposal.
V) CONTENTIONS OF PARTIES:
a) Learned counsel appearing for the Trust vehemently submitted that: the impugned orders are structured on a wrong legal premise that on the repeal of 1950 Act, the
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Trusts registered thereunder have withered away and therefore, the Society is rightly registered under the 1960 Act; after the repeal of 1950 Act, government itself had issued Circulars to the effect that educational Trusts would be governed by the provisions of 1920 Act; the Trust was justified in seeking approval of newly formed Managing Committees under sections 3 & 7 of 1920 Act, since 1950 Act was repealed and therefore, approval granted by the learned Principal District Judge could not have been voided; the Society could not have been formed duplicating name of the Trust and in any event, Trust property could not have been treated as that of the Society on registration.
b) Learned Additional Advocate General appearing for the official respondents and the learned counsel representing the respondent-Society & its office bearers vehemently opposed the appeal repelling the contentions of the appellant-Trust. They raised the preliminary objection of maintainability of intra court appeal. On the repeal of 1950 Act, the government having issued the subject Circular provided for the registration of educational societies and
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WA No.100006 of 2022accordingly, the respondent-Society came to be registered; admittedly, the Trust on account of repeal of the 1950 Act, could not have conducted any activity; in any event, there was no warrant for the Trust nor power with the learned District Judge for granting approval to the newly formed Managing Committee of the Trust under the provisions of 1920 Act; the Society has been rightly registered and enlistment of Trust properties as that of the Society cannot be faltered. In any circumstance, elections have not been held to the Trust for years and therefore, writ petitions could not have been filed by the unscrupulous office bearers of the Trust.
VI) Having heard the learned counsel for the parties and having perused the Appeal Papers, we are inclined to grant limited indulgence in the matter as under and for the following reasons:
(1) AS TO MAINTAINABILITY OF INTRA COURT APPEAL QUA ORDERS MADE UNDER ARTICLE 227:
1.1) The first submission of learned counsel appearing for the respondent-Society that intra court appeal of the kind is not maintainable since the impugned judgment has been
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rendered by the learned Single Judge in exercise of Article 227 of the Constitution of India, does not much impress us and reasons for this are not far to seek: right of appeal is a creature of statute; a legislature can create such a right even against an act of a postman or a peon, if it so chooses. Section 4 of the Karnataka High Courts Act, 1961 creating right of appeal, reads as under:
"4. Appeals from decisions of a single Judge of the High Court.--An appeal from a judgment, decree, order or sentence passed by a single Judge in the exercise of the original jurisdiction of the High Court under this Act or under any law for the time being in force, shall lie to and be heard by a Bench consisting of two other Judges of the High Court."
Ordinarily, the power exercised by the Constitutional Courts u/a 226 is in the nature of original jurisdiction and therefore, the orders emanating therefrom may be termed as 'original judgment, order, decree...', the expression employed in section 10(iva) of the 1961 Act. There is no dispute that orders made in exercise of such powers are amenable to challenge in intra court appeal as provided u/s
4. However, when it comes to an order passed under Article 227, it cannot be gainfully argued that it is a product of exercise of original jurisdiction, as such. It has long been
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WA No.100006 of 2022settled that the power constitutionally vested u/a 227 is special, limited & supervisory in nature and content vide RADHEY SHYAM vs. CHHABI NATH1. However, that does not mean that the legislature cannot provide an appeal against an order passed under this Article too. 1.2) A right of appeal is created by the State Legislature by enacting section 4 of the 1961 Act as mentioned above. The scope of this section has to be determined in the context of section 10 of the Act in general and clause (iva) thereof in particular. Section 10(iva) has the following text:
"10. Other powers of a bench of two Judges.-- The powers of the High Court in relation to the following matters shall be exercised by a Bench of two Judges:--
a) (i) xxx,-
b) (a) xxx
c) (b) xxx).
d) (ii) xxx;
e) [(iv) xxx;
f) (iva) an appeal from any original
judgment, order or decree passed by a single Judge in exercise of the powers under clause (1) of article 226, article 227 and article 228 of the Constitution of India.]
g) (v) xxx"1
(2015) 5 SCC 423
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WA No.100006 of 2022A plain reading of this clause leaves no manner of doubt as to orders passed inter alia under Article 227 being appealable, regardless of the limited scope of such appeal. The expression 'original judgment, order, decree' employed in clause (iva) of section 10 of the 1961 Act which Mr.Katageri vociferously highlighted, is confined to orders passed u/a 226, which indisputably vests original jurisdiction in the High Courts as contradistinguished from appellate, revision or supervisory jurisdiction. It is Article 227, in contrast which vests supervisory jurisdiction. However, that does not bar the legislature from making even such orders appealable, if it so chooses. It is a matter of legislative judgment, and the judiciary being a coordinate organ of the State, has to show due deference to it, subject to all just exceptions. An argument to the contrary would render clause (iva) of section 10 otiose qua the orders made under Articles 226 & 227 and thereby, would defeat the legislative intent.
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WA No.100006 of 20221.3) In TAMMANNA vs. RENUKA2, what was discussed was appealability of interim orders passed in writ jurisdiction, more particularly u/a 227. Whether a final order passed u/a 227 is appealable or not was not even in the penumbra of the said decision. It hardly needs to be stated that a decision is an authority for the proposition that it lays down in a given fact matrix only, and not for all that which logically follows from what has been so laid down, said Lord Halsbury more than century ago in QUINN vs. LEATHEM3. The Coordinate Bench decision in SARDAR VEERANGOUDA PATIL MAHILA VIDYA PEETH vs. BASANTKUMAR, disposed off on 11.10.2018, vehemently pressed into service by Mr.Sanjay S Katageri, learned counsel appearing for the respondent-Society, holds that intra court appeal of the kind is not maintainable, the impugned judgment having been passed u/a 227, as distinguished from Article 226. However, it is a decision rendered sub silentio inasmuch as it has not adverted to a very important provision 2 2009 SCC OnLine Kar 123 3 (1901) AC 495
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WA No.100006 of 2022namely clause (iva) of section (10) of the 1961 Act. This provision reads as under:
1.4) Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th Edn. explains the concept of sub silentio at p. 153 in these words:
"A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio."
The above opinio juris which the Apex Court has approved and followed in MUNICIPAL CORPORATION OF DELHI vs. GURNAM KAUR4, supports our view that the subject decision of the Coordinate Bench having been rendered sub silentio, does not tie the hands of this Bench. Other Rulings having been discussed by the said Bench and there being 4 AIR 1989 SC 38
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WA No.100006 of 2022no quarrel with the propositions laid down therein, do not warrant a detailed discussion.
2. AS TO THE EFFECT OF REPEAL OF 1950 ACT ON THE TRUSTS REGISTERED THEREUNDER AND ENACTMENT OF 1997 ACT:
2.1) The 1950 Act obtained in the erstwhile Bombay Province which included inter alia Dharwad & Belgaum districts, is not in dispute. This Act was struck down by a learned Single Judge of this court in SRI SAHASRA LINGESHWARA TEMPLE vs. STATE OF KARNATAKA5;
an appeal against the said judgment also has been disposed off in a particular way; when the intra court appeal against the said decision was pending, 1997 Act came to be enacted by the State Legislature and it came into effect from 1.5.2003. Amongst other, it repealed the 1950 Act. However, there is no provision in the new Act which would automatically put an end to the entities that are registered under the provisions of erstwhile 1950 Act. It hardly needs to be stated that hundreds of entities like the trusts, societies, wakfs, have been registered under the said Act. 5 2007(1) KAR.L.J. 1
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WA No.100006 of 2022Merely by its repeal, the entities so registered do not commit legal suicide in the absence of contra indication in the statute itself. No Rule or Ruling is brought to our notice supporting the contra position. We jurisprudentially assume that there can be none such.
2.2) One has to bear in mind that there is a marked distinction between an entity in existence being registered and an entity being brought into existence by very registration: right to associate being constitutionally guaranteed as a fundamental right u/a 19(1)(c), an association can be formed sans registration. Same is the case with a trust, the differences obtaining between them not being relevant to our discussion. A trust or society is not a product of incorporation unlike the companies incorporated under the Companies Act. Ordinarily, a trust is not a legal person; conventionally speaking, a trust is an obligation annexed to the property normally held by one inter alia for the benefit of others; it only creates a fiduciary relationship coupled with a justiciable obligation. Some statutes like the Income Tax Act, 1961 may treat trusts as
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WA No.100006 of 2022legal persons, is a point apart. Therefore, the question of personality of a trust, registered or not, withering away on the repeal of 1950 Act would not arise. Trusts are formed first and registered subsequently, is not much in dispute. The impugned judgment apparently having a contra inarticulate premise is struck with a legal infirmity warranting our interference.
2.3) The above being said, the question as to invocability of sections 3 & 7 of the 1920 Act would crop up in the matter. It is a specific case of the appellant-Trust that the new Managing Committees having been formed, approval has been granted by the learned Principal District Judge, as sought for. When asked as to the legal requirement of such approval, learned counsel appearing for the appellant-Trust drew our attention to the provisions of 1920 Act. Section 3 reads as under:
"3. Power to apply to the Court in respect of trusts of a charitable or religious nature.-- Save as hereinafter provided in this Act, any person having interest in any express or constructive trust created or existing for public purpose of a charitable or religious nature may apply by petition to the court within the local limits of whose jurisdiction any substantial part of the subject-matter of the trust is situate to obtain an
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WA No.100006 of 2022order embodying all or any of the following directions, namely:--
(1) directing the trustee to furnish the petitioner through the Court with particulars as to the nature and objects of the trust, and of the value, condition, management and application of the subject-matter of the trust, and of the income belonging thereto, or as to any of these matters, and (2) directing that the accounts of the trust shall be examined and audited: Provided that no person shall apply for any such direction in respect of accounts relating to a period more than three years prior to the date of the petition.
Similarly, it is profitable to see the following text of Section 7:
7. Powers of trustee to apply for directions.--
(1) Save as hereinafter provided in this Act, any trustee of an express or constructive trust created or existing for public purpose of a charitable or religious nature may apply by petition to the Court, within the local limits of whose jurisdiction any substantial part of the subject-matter of the trust is situate, for the opinion, advice or direction of the Court on any question affecting the management or administration of the trust property, and the Court shall give its opinion, advice or direction, as the case may be, thereon: Provided that the Court shall not be bound to give such opinion, advice or direction on any question which it considers to be a question not proper for summary disposal.
(2) The Court on a petition under sub-section (1), may either give its opinion, advice or direction thereon forthwith, or fix a date for the hearing of the petition, and may direct a copy thereof, together with notice of the date so fixed, to be served on such of the person interested in the trust, or to be published for information in such manner, as it thinks fit.
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WA No.100006 of 2022(3) On any date fixed under sub-section (2) or on any subsequent date to which the hearing may be adjourned, the Court, before giving any opinion, advice or direction, shall afford a reasonable opportunity of being heard to all persons appearing in connection with the petition."
[Sub-section (4) not being relevant, is not reproduced.] 2.4) A perusal of above provisions does not lend support to the contention that there was any legal requirement of seeking approval to the list of Managing Committee members of trusts of the kind. Counsel/s submission that approval of the kind would grant legitimacy to the formation of the managing committees and that would dispel the possibility of dispute/difference and therefore, approval was sought for, is a poor solace in law. The text & context of the above provisions of the 1920 Act do not support counsel's view. In any human institution, dispute/difference would arise, and for their resolution, aggrieved parties should approach ordinary civil courts. Factional disputes of the nature cannot be resolved by resorting to the provisions of this Act.
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WA No.100006 of 20222.5) The related contention of the Trust that after the repeal of 1950 Act, the position became non liquet and therefore, the government itself had suggested by issuing subject Circulars to invoke the provisions of this Act, is difficult to sustain. When a statute does not contemplate a particular situation and further does not intend to grant redressal, invoking its provisions for the remedy is impermissible, has been decided centuries ago vide Heydon's Case (1584) 76 ER 637. When asked, learned AAG appearing for the official respondents tells us in all fairness that the said Circulars are not relatable to any provision of 1997 Act; he hastens to add that, although u/s 77, government can issue directions for removal of difficulties, no such direction has been issued, is true. An Under Secretary cannot arrogate to himself such a statutory power and issue the subject Circular. No justiciable rights as debated herein, can be created by such instruments that have been issued unceremoniously. Much is not necessary to elaborate. Therefore, orders of the learned Principal
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WA No.100006 of 2022District Judge granting approval to the formation of new Managing Committees of the Trust, are unsustainable.
3) AS TO RESPONDENT-SOCIETY COPYING NAME OF TRUST AND ENLISTING TRUST PROPERTIES AS ITS OWN:
3.1) The vehement submission advanced on behalf of the appellant-Trust that the respondent-Society could not get it registered with the duplication of nomenclature of the Trust, has force. Names & symbols, which the humans and their institutions live by, have enormous significance in an organized society. 'What is there in a name?' is a wrong question to ask. Nomenclature is a system for naming things and names can be important for a variety of reasons. Name indicates a form that reflects the substance. At times, both are intertwined with each other. Difficulties that may crop up more often than not, because of duplicity of names are myriad; havocs may happen by mistaken identities by virtue of nomenclature per se. The laws relating to copyrights, trademarks and other intellectual property do therefore, repel duplication of names & symbols, subject to all just exceptions.
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WA No.100006 of 20223.2) Section 7 of the 1960 Act which enacts the above philosophy, reads as under:
"7. Societies not to be registered with undesirable names.- No society shall be registered by a name which, in the opinion of the Registrar, is undesirable. A name which is identical with, or too nearly resembles, the name by which a society in existence has been previously registered, may be deemed to be undesirable by the Registrar under this section."
This provision as of necessity has to be construed even when one of the entities whose name is duplicated, does not strictly answer the description of 'society'. Otherwise, its intent may be defeated, and that would be a breeding ground for mischief and consequent litigations. Section 7 of the 1960 Act apparently begins with a negative expression 'no society shall be registered...' which makes it mandatory vide DHANRAJ N. ASAWANI VS. AMARJEETSINGH MOHI6. It employs another term of significance namely 'too nearly resembles the name'. Learned counsel for the appellant is right in submitting that the name of appellant-Trust and that of the respondent-Society is verbatim same and therefore, the jurisdictional Registrar 6 2023 SCC OnLine SC 991 para 24
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WA No.100006 of 2022ought not to have allowed the society being registered with the same name. This grave mistake, the respondent- Registrar is liable to rectify forthwith and update the records, after giving an opportunity to the respondent- Society only for the limited purpose of suggesting an alternate name. If no such suggestion is made within one month, the registration of the said society shall be struck off and further consequential action in that regard, at his hands, would follow.
3.3) There is a apparent error on the part of Registrar of Societies in permitting the respondent-Society getting registration with the properties of appellant-Trust as it's own. When that infirmity was notified, he should have at once asked the respondent-Society to rectify the said defect or he himself should have set the same right. In fact, in the earlier round of litigation, we are told, the matter having been examined by a learned Single Judge of this Court, was remanded to the portal of Registrar for consideration afresh after giving an opportunity of hearing to the stakeholders. When it comes to the property of a public charitable trust
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WA No.100006 of 2022like the appellant herein, courts & authorities are not just the arbiters but have a greater role to protect the same for the beneficiaries, who may be indeterminate categories of individuals. Therefore, the respondent-Registrar is directed to rectify the mistake forthwith by excluding properties of the appellant-Trust from the records of respondent-Society by passing appropriate order within six weeks. For this also the respondent-Society needs to be heard by a short notice.
4) Learned Single Judge in W.P. No.101436/2018 having examined the records has issued certain directions to the District Registrar to conduct enquiry into the affairs of Society u/s 25 of 1960 Act. He has not mentioned as to whom the enquiry report should be submitted, although within what period enquiry should be accomplished, has been prescribed. We are in agreement with the said direction as also the other for making payment to the respondent-teacher. These directions have been given having exercised the discretion in the circumstances and in the fitness of things. Despite vehement submission, we have not been shown what rule of reason or of law has
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WA No.100006 of 2022been breached as to warrant our interference. What is due to a teacher of an institution run by the entity, is a product of his toil and therefore payment needs to be made to him on account of that. An argument to the contrary would be unjust, which the law shuns. Therefore, we do not propose to interfere with the directions in question. That being said, we add that the said enquiry report has to be submitted to the Registrar of Societies, who shall take a call thereon, in accordance with law and within six weeks, of course after giving an opportunity of hearing to the stakeholders.
5. There is yet another aspect which was vociferously argued. Our advertence is drawn to some observations made by the learned Single Judge in the course of impugned judgment and they give an impression that the Trust could have invoked the provisions of Indian Trust Act, 1882 instead of 1920 Act. For this, he cites certain bye-law of the Trust which in so many words mention the provisions of 1960 Act for accomplishing certain things in the affairs of Trust. It hardly needs to be said that the application of 1882 Act apparently is confined to the private trusts as contra
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WA No.100006 of 2022distinguished from public trusts. The very preamble of this Act which reads "An Act to define and amend the law relating to Private Trusts and Trustees" makes it explicit. Even rulings of various High Courts galore to vouch the same. However, this ground even if substantiated does not advance the case of either party. It has long been settled position of law that an appeal to succeed, it is not sufficient to show that the impugned order is wrong; what needs to be demonstrated is that the same is unsustainable. Such unsustainability has not been shown despite fervent submissions.
In the above circumstances and with the above directions, this appeal is disposed off, costs having been made easy.
This court places on record its deep appreciation for the able research & assistance rendered by its official Law Clerk cum Research Assistant Mr.Raghunandan K.S. Sd/-
(KRISHNA S.DIXIT) JUDGE Sd/-
(VIJAYKUMAR A.PATIL) JUDGE VNP & KMS