Bombay High Court
Avinash S/O. Ganpatrao Shegaonkar vs // on 27 February, 2014
Author: A. P. Bhangale
Bench: A. P. Bhangale
1 sa501.09.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.501 OF 2009
Avinash s/o. Ganpatrao Shegaonkar,
Aged about 43 years, r/o. 120,
Choti Dhantoli, Nagpur. ........ APPELLANT
// VERSUS //
1. Ganpat s/o. Govind Joshi,
Aged Major, r/o. Smt. Kalpana
Kohaley, Kohaley Bhavan, Khare
Town, Dharampeth, Nagpur.
2. Suresh s/o. Harishchandraji Bhandarkar,
Aged Major, r/o. 249/11, Tukdoji
Nagar, Manewada Road, Nagpur-24.
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3. Gajanan s/o. Gomaji Burde,
Aged Major, r/o. 176, Ayurvedic Lay-out,
Umrer Road, Nagpur.
4. Bhau s/o. Krishnarao Bhoyar,
Aged Major, r/o. The Mal Contoment,
Kamptee, Distt. Nagpur.
5. Pravin s/o. Ganpatrao Fating,
Aged Major, r/o.47, Old Snehanagar,
Wardha Road, Nagpur.
6. Arun s/o. Tejrao Kedar,
Aged Major, r/o.205, Parate Chakki's
near J.B.Thakkar Marg, Giripeth,
Nagpur.
7. Shankar s/o. Balwantrao Mate,
Aged Major, r/o.Sairaj Agency, Vasant
Apptt., Sonaji Wadi's near Tulshi Bag,
Mahal, Nagpur.
8. Sudhakar s/o. Sheshrao Mullik,
Aged Major, r/o.4, Postal Audit Colony,
Pratapnagar, Nagpur.
9. Deleted.
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10. Sunil s/o. Shyamrao Shinde,
Aged Major, r/o.48, Gawande Layout,
Ring Road, Nagpur.
11. Arvin s/o. Nathuji Talmale,
Aged Major, r/o.Plot No.12, Dindayal
Nagar, Nagpur.
12. Vijay s/o. Gowardhandas Agrawal,
Aged Major, r/o.301, Shrikrishna
Apartment, near Mount Caramel
School, Dhantoli, Nagpur.
13. Ganesh s/o. Ramchandra Chakkarwar,
Aged Major, r/o.Trimalev, 104,
Vijayanand Society, Narendra
Nagar, Nagpur.
14. Gajananrao s/o. Anandrao Gode,
Aged Major, r/o.Navin Shukrawari,
Ramaji Wadi, Nagpur.
15. Raju s/o. Pyarelal Jaiswal,
Aged Major, r/o.Vijay Chambers,
in front of Police Quarters,
C.P. Bus Stop, Gandhibag, Nagpur.
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16. Arun s/o. Dasrao Kulkarni,
Aged Major, r/o.57, East Gopal
Nagar, Nagpur.
17. Vijay s/o. Devsibhai Patel,
Aged Major, r/o. 21, Timber Mart,
Ghat Road, Nagpur.
18. Narendra s/o. Jageshwarrao
Siramwar, Aged Major, r/o.
Sahakarya Nagar, Wardha
Road, Nagpur.
19. Jaiwant (Babasaheb) s/o.Vishwanath
Uttarwar, Aged Major, r/o.Rahate
Colony, Wardha Road, Nagpur.
20. Vijay S. Talewar,
Aged Major, r/o. near Lendra Park,
Ramdaspeth, Nagpur.
21. Shri Kirtikumar Samarth,
Aged Major, r/o. Plot No.28, New
Ramdaspeth, Nagpur - 12.
22. Deleted. ........ RESPONDENTS
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Mr.A.S.Jaiswal, Adv. for the Appellant.
Mr.A.R.Sambre, Adv. for respondent no.15.
Mr.A.P.Thakare, Adv. for respondent nos. 19 and 20.
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Date of reserving the Judgment : 30.1.2014.
Date of pronouncing the Judgment : 27.2.2014.
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CORAM : A. P. BHANGALE, J.
JUDGMENT :
1. This Appeal under Section 72 (4) of the Bombay Public Trusts Act, 1950 (now 'Maharashtra Act' instead of 'Bombay 'Act) is arising from the Judgment and order dated 10-08-2009 passed by the District Judge, Nagpur rejecting Change Report and Regular Civil Appeal No. 5 of 2009.
2. Heard the submissions at the bar.
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3. This second appeal was admitted on 15-06-2012 by this Court on the following substantial questions of law :-
i) Could the finding recorded by the Joint charity Commissioner and then confirmed by the District Judge upholding disqualification of the Members admitted to the Trust as was held by the Assistant Charity Commissioner is the result of the misinterpretation of clause (6) of the scheme of the Trust and thus, the finding of the Courts below is wholly unwarranted and unsustainable in law?
ii) Whether the learned District Judge and Learned Joint commissioner were right in upholding the finding that the members of the Trust were rightly disqualified when the opportunity of hearing was not given and thus, the decision of the Courts below impugned are bad in law?
My answer for question nos.(i) and (ii) is that -
for non-compliance of the principle of natural justice, the ::: Downloaded on - 01/03/2014 00:14:38 ::: 7 sa501.09.odt impugned orders are unsustainable for the following reasons.
4. Learned Counsel for the appellant submitted that there was no any breach of any provision of the Constitution of the Trust and therefore, the District Judge ought to have accepted the Change Report. Learned District judge erred in holding that the Committee, while enrolling the members, committed legal error by accepting less amount than prescribed in the Scheme of the Trust. Learned Counsel for the appellant contended that there was no intention to make it mandatory to pay more than the sum of Rs.1,00,000/-, Rs.10,000/- and Rs.1,000/- for patron, life and ordinary membership respectively. Learned Counsel argued that the members enrolled were not invalid members for paying a rupee less. Learned Counsel urged that the contract do not become voidable for the miniscule amount.
5. Reference is made to the ruling in Vinayak vs. State of Goa reported in 1995 (2) Mh.L.J. 905.
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6. On the other hand, it is contended that specific emphasis is laid by the Deputy Charity Commissioner, Nagpur, who framed the Scheme in clause (6) of the Scheme to mention prefix that a person who pays "more than or above" Rs.1,00,000/- be called "Patron Member", a person who pays more than or above Rs. 10,000/- be called "Life Member" and a person who pays more than or above Rs.1,000/- be called as "ordinary member". Thus, the intention of the Authority to lay emphasis on the word "more than or above" applied to all different membership was made clear showing that something more than was necessary to achieve a category of membership, Patron, lifetime, or ordinary. Learned Counsel for the respondent submitted that the legal lacunae cannot be allowed to be filled in at the stage of Second Appeal as illegality would remain as it is. Reference is made to the ruling in Lomdas Vs State of Maharashtra, 1993 Mh.L.J 1056. The inquiry under Section 22 is judicial and legality and validity of membership is the subject of inquiry.
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7. It is further contended that in Second Appeal, as observed in F. M Irani vs. Sardar, 2001 (2) Mh.L.J. 654 only substantial question of law should be entertained and findings of facts must not be interfered as legal lacunae cannot be allowed to be filled in at the stage of the Second Appeal. In other words, illegality would remain as it is. It is contended that legality and validity of membership is subject of the inquiry under Section 22, which is judicial. Learned Counsel for the respondent submitted this Court ought not to interfere in the concurrent findings of the Courts below.
8. In Hero Vinoth (minor) vs. Seshammal, (2006) 5 SCC 545, Hon'ble Supreme Court has observed that : "The general rule is that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the Courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the Courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", ::: Downloaded on - 01/03/2014 00:14:38 ::: 10 sa501.09.odt it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
9. I must consider this as an exceptional case wherein interference is felt necessary. Really speaking small difference of a rupee can be mutually rectified between the member and the Public Trust. The Court ought to note that the venerable maxim 'de minimis non curat lex' ('the law cares not for trifles') is part of the established reasonable legal principle which all enactments have adopted, or otherwise also which all enactments are deemed to accept.
The difference of one rupee is so trivial and small. Such little, short or discountable petty amount could have been ignored in the modern day context to get more memberships for serving the charitable objects of the Trust. Hence, such minimal sum must not change the nature and status of membership of the charitable Trust by donations, patron, life and ordinary as the case may be, merely for the non-
payment for a very small or fractional difference of a ::: Downloaded on - 01/03/2014 00:14:38 ::: 11 sa501.09.odt rupee particularly in a situation when the member concerned is voluntarily ready and willing to pay the difference.
Reasonable and rational view should be taken in such matters so as to ensure that object of the donor/contributory to serve the Trust as an appropriate member is served in larger public interest.
10. Principle of natural justice ought not to be forgotten. In Mohinder Singh Gill and another vs. The Chief Election Commissioner, New Delhi and Others, [(1978) 1 SCC 405], Hon'ble Supreme Court has observed:
"Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes it, applies when people are affected by acts of authority. It is the hone of healthy government, recognised from earliest times and not a mystic testament of judge-made law. Indeed, from the legendary days of Adam and of Kautilya's Arthasastra the rule of law has had this stamp of natural justice which makes it social ::: Downloaded on - 01/03/2014 00:14:38 ::: 12 sa501.09.odt justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not new-fangled. Today its application must be sustained by current legislation, case-law or other extant principle, not the hoary chords of legend and history.
Our jurisprudence has sanctioned its prevalence even like the Anglo-American system."
11. In the light of the principle discussed as above, Joint charity commissioner can consider the representation of the appellant in this regard to settle the controversy in the larger interests of the public Trust to accommodate the members accordingly by giving the members the opportunity of hearing. Substantial questions of law raised have to be answered accordingly. I, therefore, set aside the impugned Judgment and Order by the Authority and the Court below to order that the proceedings be remanded before the Joint charity commissioner concerned to give opportunity of hearing to the appellant and to decide the representation of the appellants in accordance with law ::: Downloaded on - 01/03/2014 00:14:38 ::: 13 sa501.09.odt bearing in mind the principles stated above The Second Appeal is allowed and disposed of accordingly.
JUDGE jaiswal ::: Downloaded on - 01/03/2014 00:14:38 :::