Bombay High Court
Shankarrao Sakharamji Supare vs B.J. Loya, Joint Charity Commissioner ... on 4 November, 1996
Equivalent citations: (1996)98BOMLR710
JUDGMENT B.U. Wahane, J.
1. The appellant-Shri Shankarrao Sakharamji Supare in this First Appeal' questioned the findings recorded by the Joint Charity Commissioner, Nagpur, in its judgment and decree dated 19.5.1993 in Application No. 4 of 1992 under Section 47 of the Bombay Public Trust Act, 1950.
2. Before dealing with the submissions and giving my findings, I feel it my bounden duty to note some astonishing and shocking events in this appeal. This first appeal for the first time came on the board for hearing on 14.10.1996. Shri A.P. Deshpande, Senior Counsel, appearing for the respondent Nos. 3 and 7, requested to adjourn the matter and at his request, the matter was adjourned to 23.10.1996. On 23.10.1996, again the matter was adjourned to 25.11.1996. On this day, Shri S.V. Manohar made a request on behalf of Shri A.P. Deshpande that Shri Deshpande not being well, the matter be adjourned. Ultimately, the matter was posted on 1.11.1996 and with the consent of Shri Khapre the learned Counsel for the appellant, and Shri Lala, the learned Counsel for the respondents No. 3 and 7, I proceeded with the matter, and it was agreed by the parties that in case Mr. Deshpande is not available on 1.11.1996, he will be heard on 4.11.1996. On 1.11.1996, heard Shri Khapare, the learned Counsel for the appellant. Shri Lala, learned Counsel for the Respondents 3 and 7 was present in the Court.
Today i.e. on 4.11.1996, it has been brought to my notice by the Reader of the Court that Smt. Neena Khaparde, Advocate has filed the power of attorney on behalf of the respondent Nos. 3 and 7, and Mr. A.P. Deshpande has given his 'no objection'. The power of attorney Mrs. Khaparde came to be filed on Saturday the 2nd November 1996. When the matter is called out today, none appeared for the respondents. However, some one for respondents informed the Court that their Counsel is just coming. Waited for considerable time, but none appeared for the Respondents.
Probably, it may be known to the learned Counsel of the parties that Smt. Neena Khaparde is the daughter of the Presiding Officer. Under the circumstances, it was expected from the Advocates already engaged to disclose the relation of Smt. Khaparde with the Judge and could have prevented the clients from resorting to such sharp or unfair practice, in part heard matter. Similarly, the learned Counsel ought not to have accepted the part-heard brief and that too which was before her father. Note No. 6 under Rule 3 framed under the Advocates' Act, 1961 specifically provides that 'An Advocate shall not practice before a Court, Tribunal or authority mentioned in Section 30 of the Act, who is related to the Advocate. Father comes in the prohibited list. Both the learned Counsel the one parting with brief and the other who accepted part heard brief, should have used their best efforts to restrain and prevent their clients from adopting such modus operandi, apparently with mala fide intention with reference to their conduct towards Court. Instead, both the counsel became easy prey to the designs of their clients. Such conduct is deplorable as it was to influence the decision of a Court or to get adjourned the part-heard matter without any reasonable cause.
Judges have greater faith in themselves and they always do the right thing without feeling exasperation or nervous in any thing. I always remember and practice the words of E.S. Hooper, used in the following couplet;
I slept and dreamt that life was beauty; I woke and found that life was duty.
In spite of repeated calls, neither Shri A.P. Deshpande, Shri Lala nor Smt. Khaparde, the learned Counsel appeared, thereby it was difficult to fathom the working of their mind, adopting the attitude and conduct discussed in the preceding paras. It is the duty of the lawyer not only to his client, but also to the courts to be punctual in attendance.
Conduct of the advocates appearing for respondents and of those respondents, according to me was unfair and in violation of law. Probably they forgot that no authority, however high placed, and relations, acquaintances, can control the decision and influence a judicial or quasi judicial authority. This is the essence of our judicial system. Filing power of attorney Smt. Khaparde, the parties thought to influence the Judge for relief in their favour or not to proceed with the part heard appeal. Such action could be said as brow beating tactics. However, the Advocates and parties have forgotten that when the Judge occupies the pious chair of a Judge, as every one is aware, his eyes are closed or bandaged by black strip and thereby knows no relations, friends and acquaintances who comes and appears before him. Here, the Presiding Officer (Judge) is a last person to be influenced, and succumbed to any illegal and unfair means or practices. The Judge has only to impart justice on the basis of the material placed before him. There is no code of conduct as such for the Judges but the Judges who are occupying the pious chair of the Judge, has a self-imposed Code to the effect that a Judge is not hearing the matters in which his blood relations, close friends and other acquaintances are appearing. But, the modus operandi adopted in this case being mala fide and with oblique motive, I thought in the better interest of justice to deprecate such practice, to hear the counsel of the parties. Besides this, Courts are called as 'Temples of Justice' and one who occupies the pious seat of a Judge to impart justice without fear and favour is called...and, therefore, this Court expressed readiness to hear the counsel representing the parties including Mrs. Khaparde. But none appeared. Whosoever may appear before me is nothing more than a learned Counsel of the litigating parties. Therefore, Smt. Khaparde, as a counsel representing the parties, is at liberty to make submissions on behalf of her clients. Smt. Khaparde is supposed to appear and argue before this Court as an advocate for the respondent Nos. 3 and 7 and not as daughter of the Judge. Consequently, case was called out and information was sent to learned Counsel appearing for respondents and waited for considerable time, but none appeared. Therefore, to deprecate and to prevent repetition of such practice either by the advocates representing the parties or the parties, I proceed to record my findings in this case.
2A. In the instant appeal, Shri Khapre, the learned Counsel for the appellant, has specifically submitted that only one issue is involved in this appeal, which is:
Whether the Joint Charity Commissioner has jurisdiction or authorisation under Section 47 of the Bombay Public Trust Act to appoint new trustees even if no condition as enumerated in the provisions of Section 47 are satisfied? In other words the above questions can be framed as follows:
Assuming the machinery is not provided as to how function the society/ trust, whether the Joint Charity Commissioner has power to appoint altogether new trustees and, thereby, denoting the entire property to such trustees?
3. The Sanstha known as "Adarsha Dnyan Prakash Shikshan Sanstha, Nagpur" was registered under the provisions of M.P. Trust Act, on 25.8.1953. The appellant Shri Shankarrao who is the founder member of the Society, intimated on 1.10.1971, the Change Report as regards the induction of the appellant as the founder/permanent member, which was accepted by the Deputy Charity Commissioner, Nagpur on 30.6.1973. The order of the Deputy Charity Commissioner dated 30.6.1973 was for the first time challenged in Revision No. 32/87 before the Joint Charity Commissioner on 24.11.1987, i.e. after about 14 years. The Joint Charity Commissioner dismissed the revision on 19.5.1993. At the time of registration Shri V.G. Prakashe was the Secretary of the Trust and also the Founder Member. The appellant has placed on record the Memorandum of Association of the Sanstha. The order of the Joint Charity Commissioner is as follows:
(1) Revision stands dismissed having become infructuous in view of the order under Section 47 of the Bombay Public Trust Act, 1950.
4. On 16.7.1992, the respondent Nos. 2 and 3 i.e. Smt. Vimal wd/o Ramkrishna Prakashe and Dr. Rajendra s/o Vithalrao Prakashe, filed an application under Section 47 of the Bombay Public Trust Act, 1950. The application was registered as Application No. 4/92. By filing this application, the applicant sought following relief.
(1) order that the office bearers elected in the Governing Body Meeting dated 26.8.1990 are appointed as Trustees under Section 47 of the Bombay Public Trusts Act to administer the affairs of the Trust and its institutions; or in the alternative, (2) appoint the applicants 1 and 2 as trustees to administer the afrairs of the Trust and its institutions.
In this application it is specifically mentioned that the Society was formed with four Founder Members viz.
(1) Dr. Wanjari, (2) Shri Vithalrao Govindrao Prakashe, (3) Smt. P.V. Prakashe, and (4) Shri M.D. Kimmatkar.
Out of the above four members, Dr. Wanjari died in the year 1971, Smt. P.V. Prakashe died on 22.5.1987 and Shri V.G. Prakashe died on 11.5.1992. The last founder member Shri M.D. Kimmatkar was removed by resolution No. 2 dated 26.8.1989.
5. In the impugned order dated 19.5.1993 passed by the Joint Charity Commissioner, Nagpur, three persons came to be appointed as Trustees under Section 47 of the Bombay Public Trust Act, 1950. The appointed trustees are as follows:
(1) Dr. R.V. Prakashe, (2) Smt. Vimal wd/o Ramkrishna Prakashe.
(3) Dr. (Smt.) V.R. Prakashe, and (4) Shri M.D. Kimmatkar.
6. Section 47 of the Bombay Public Trusts Act, 1950, reads as under:
47. Any person interested in a public trust may apply to the Charity Commissioner for the appointment of a new trustee, where there is no trustee for such trust or the trust cannot be administered until the vacancy is filled, or for the suspension, removal or discharge of a trustee, when a trustee of such trust,-
(a) disclaims or dies;
...
It is, thus, apparent that new trustee could be appointed if the trustees are unable to administer the trust and its property.
Shri Khapre, the learned Counsel for the appellant, brought to my notice the rules and regulations of the Society. Article 4 of the Rules and Regulations reads as:
Article 4. The four founder members are the permanent members of the Governing Body and the remaining three members are elected by the founder members by majority or unanimous vote for a period of three years. A fresh selection shall be made every 3rd year. Any retiring member is eligible for re election. Any vacancy caused by the death or resignation, or otherwise shall be filled in by the majority of the founder members or the remaining founder members.
7. This rule specifically provides that if there is any vacancy caused by the death or resignation or otherwise in the Governing Body of the Society, the vacancy be filled by majority of the votes of the founder members or the remaining members. From the record, it is apparent that the appellant was inducted in the Society as the founder member in the year 1971 and the Change Report to that effect was accepted by the Deputy Charity Commissioner on 30.6.1973 and it was final as the order of the Deputy Charity Commissioner was not challenged at least till the application under Section 47 was filed on 16.7.1992. Thus, out of four founder trustees as provided in the Rules and Regulations of the Society, the respondent No. 2 Shri M.D. Kimmatkar and the appellant were functioning for the institutions. In view of this, according to Shri Khapre, the Joint Charity Commissioner, Nagpur had no jurisdiction and powers to invoke the provisions of Section 47 of the Bombay Public Trusts Act and appoint new founder members inducting them as the founder trustee. I find considerable force in the submissions of Shri Khapare, the learned Counsel of the appellant.
Shri Khapre, the learned Counsel for the appellant, placed reliance on the case of Gyandeo Tukaram Devre and Ors. v. Ganpat Nathu Devre and Ors. 1995 (1) Mh. L.J. 99. In this case, His Lordship Shri D.R. Dhanuka, specifically observed that Section 47 does not confer any power on the Charity Commissioner to appoint any new Trustee. Power thereunder can be exercised only in cases specifically covered by the section. In the case which was before His Lordship as also the case in hand, the Rules and Regulations do not provide the minimum or maximum trustees of the Managing Committee or the Trust. However, the fact remains that when the application was presented under Section 47 of the Bombay Public Trusts Act, two founder members were managing the Trust. Thus, keeping in view the observations made by His Lordship in the case cited supra, I find that the findings in that case are applicable to the instant case.
8. In the result, the appeal is allowed. The order dated 19.5.1993 in Application No. 4/92 being contrary to the provisions under Section 47 of the Bombay Public Trusts Act, is hereby quashed and set aside. No order as to costs.