Maneklal Anandji And Ors. Etc. vs Popatlal B. Shah And Ors. Etc.
2002 Latest Caselaw 204 Bom

ORDER

R.J. Kochar, J.

1. I have heard all the learned Counsel appearing for their parties in the above multiple proceedings at length, even on the merits of the appeal. The above Civil Applications are filed by three different groups of the individuals who were not parties in the original proceedings before the City Civil Court. The aforesaid Applicants in the Civil Applicants have made a common prayer that they should be allowed to intervene in the present Appeal in this Court and that the appellants be directed to join the Applicants as the party respondents. As far as the part of the common prayer (a) in all the aforesaid Civil Applications is concerned I am inclined to allow them to intervene in the present appeal as all the applicants have claimed that they are active members of the Community and the Trust and that they are vitally interested in the activities of the Trust and they are vitally affected by the Orders passed by the Charity Commissioner and the City Civil Court, which are the subject matter of this appeal. In view of the controversy created around the Trust it would be in the larger interest of the community to hear the Applicants, who might represent different opinions in the community. Besides, having heard all the parties in this matter including the applicants at length on the merits of the appeal it will not be proper to not to allow the applicants to intervene in the present appeal. I therefore, pass the following order in respect of the common prayer Clause (a) in the above Civil Applications :

"In Civil Application No. 1536 of 2001 prayer (a) is made absolute. The applicants are not the member of the Managing Committee but they should be implcaded as respondents to represent the class of the community in their representative capacity. The appellants shall implead the applicants as respondents in the present appeal.

In Civil Application No. 1537 of 2001 prayer (a) is made absolute and the applicants being the members of the Managing

Committee of the Trust and they shall be impleaded as the party respondents.

In Civil Application No. 2396 of 2001 prayer Clause (a) is made absolute and the applicants are directed to be impleaded as the party respondents as they have also claimed to be the members of the Managing Committee.

Appellants shall carry out the necessary amendments in the appeal within four weeks from today.

Shri Sakhare, the learned Counsel for the applicants in all the aforesaid three civil applications waives service of the amended appeal.

2. The applicants have also prayed for stay of the impugned order dated 20-12-2000 passed by the City Civil Court in Charity Application No. 4 of 2000 and also different prayers made by the applicants in each of the above civil applications, I am not inclined to grant any of such prayers at the instance of the applicants who are not the appellants in the appeal but who are only intervenors and who have only prayed for impleading themselves as party respondents in the above appeal. The applicants in Civil Application Nos. 1537 of 2001 and 2369 of 2001 have gone to the extent of seeking final relief of setting aside of the impugned order in the appeal. I fail to understand how as the intervenors and even as the respondents to be impleaded henceforth the impugned orders can be quashed and set aside or even stayed by any interim orders. If the Managing Committee members who are aggrieved by the impugned order passed by the City Civil Court they ought to have challenged the said order by filing a substantive appeal against the said order. They cannot be given any relief in this appeal in which they are not the appellants who are aggrieved by the said order and who have filed the present appeal. The intervenors and the party respondents cannot be given any such reliefs which the appellants alone are entitled to claim. I therefore, refuse to grant any other reliefs in the aforesaid civil applications subject to the following order which would be common in the above civil applications.

3. It is further significant to note that the appellants themselves were not granted any interim orders of the stay of the impugned order by this Court by my learned brother D. G. Deshpande, J., who had heard the appeal and had admitted the same by passing the following order on 20-5-2001.

"Heard.

Admit.

So far as stay is concerned at this juncture it is not found necessary to stay the entire operation of the order because the election is to be held before 30-6-2001. The process of enrolling of members can be completed before 30-4-2001. Enrolment will be done as per the Scheme of 1985. Put up for further orders in the matter in the first week of June, 2001, after reopening."

The appellants are the really aggrieved parties and they have challenged the impugned order of the City Civil Court, but they were not granted the stay of the impugned order. If that is so I fail to understand how the intervenors and/or the respondents can be granted any interim orders in the appeal not filed by them.

4. In view of the aforesaid order passed by Shri Deshpande, J. the election process was started and the process of enrolling of members had begun in accordance with the 1985 Scheme. The civil application were further heard by my other learned brother Shri S. P. Kulkarni, J. on 5-7-2001. I am sure he also must have spent equal or more amount of time which I have done. Before Shri Kulkarni, J. there was a unanimity and consensus amongst the parties and the same was recorded by the learned Judge in his order as under :

1. The scheme of 1985 to which there is a reference in the impugned judgment as well as in the operative part of the impugned order shall be considered to be an acceptable position to all the parties.

2. So far as the holding of elections are concerned, a need for holding the elections for electing the trustees is also unanimous amongst all. The election process should progress as directed by the impugned order.

3. The third aspect that is pointed out and about which there is unanimity is that for progress of the process of elections, preparation of the list of voters be completed expeditiously.

5. The datum line of 30-4-2001 for acceptance of the membership forms was kept in tact and time to prepare voters list was

extended by two and half months from the date of the order i.e. 5-7-2001. Thereafter the election process was to start. I am told that so far election process has not been started and the hearing of the applications was getting adjourned from time to time on one or the other ground. In fact and in view of the finality of the order passed by my learned brother Kulkarni, J. the election process ought to have been started after 20th September, 2001. Unfortunately the said order was not complied with and the Management of the Trust continued in the hands of the Board of Nine Trustees appointed by the City Civil Court as an ad hoc arrangement till the transformation of the power takes place. It further appears that on the basis of their own interpretation of the order passed by the City Civil Court the Managing Committee of 32 members as appointed by the Charity Commissioner continued to be in power without any specific order allowing them to function. That is how the Managing Committee continues to function. It is therefore obvious why the election process was not started and why and how the Election Commission nominated by the Charity Commission and nominated by the learned Judge of the City Civil Court did not get co-operation and finally a very cool tempered Judge of this High Court, since retired, my learned brother S. C. Pratap, J., had to give-up the assignment as it became unbearable for him also to undergo the ordeal which he had accepted out of deference to the Court process. His resignation letter speaks for itself and I need not dwell any more on the aforesaid unfortunate episode. I wish he ought not to have been humiliated as expressed by him in his letter of resignation.

6. Having become alert and cautious after the resignation of my learned brother Pratap. J. as the Chairman of the Election Commission as appointed by the learned Judge of the City Civil Court I myself disclosed to all the parties that Shri Popatlal Shah was a very old client of my then Senior Shri Sharad Dighe in the Small Causes Court in the 1970's when I was in his Chamber. Though thereafter I had absolutely no occasion even to have a word with him since last-more than 30 years. I also disclosed in the Open Court another fact that I had appeared on behalf of the workmen employed in the Trust before the Industrial Tribunal

in support of their demands against the Trust many years back. The learned Counsel on both the sides have expressed their absolute no objection for me to hear and to decide this matter. Their respective clients, are present in the Court. Thereafter I have decided the matter in accordance with my conscience.

7. After hearing the learned Counsel on both the sides by their consent following areas of agreement are recorded. I have repeatedly ascertained from all the Counsel that there is no dispute or controversy in respect of the following points:

1. As far as the voters list prepared as per the directions of this Court dated 5-7-2001 on the basis of the cut-off date 30-4-2001 is acceptable to all the parties including the intervenors.

2. The eligibility of a candidate for contesting the election for the post of Trusteeship should be his association with the Trust for a period of 5 years from 1-4-1994 i.e. a candidate should have his association with the Trust for a minimum period of 5 years from 1-4-1994 or prior thereto.

3. Elections for the Board of Trustee are to be held.

4. The list of voters as prepared would be the list of eligible voters and that list will not be subject to any challenge by any one.

5. The list of those who are eligible to contest the election either for the Board of Trustee or for the Membership of Managing Committee would be prepared and sqruti-nlsed by Shri Harakchand Gada, the Solicitor, who hails from the community of the Trust and he is acceptable to all.

I am informed by Shri Gala, the learned advocate for one of the parties that Shri Gada has given his consent. He shall scrutinise the standing and eligibility of the contesting candidates on or before 1-4-1994 and thereafter i.e. for five years for the post of Trusteeship and two years for the post of Membership of the Managing Committee. He shall certify the eligibility of the candidates as far as possible within one week from the receipt of the list and he shall confine his enquiry to the list only.

AREA OF DISPUTE OR DISAGREEMENT

8. According to the intervenors who are by and large sitting members of the Managing Committee as appointed by the Charity

Commissioner while approving 1985 Scheme for the Trust the City Civil Court has not set aside the appointment of the Managing Committee and that it was only the appointment of the Board of Trustees that stood set aside.

9. According to the respondents in the first appeal the learned Judge of the City Civil Court by his impugned order has quashed and set aside the whole order passed by the Charity Commissioner and that it was not confined only to the appointment of the Board of Trustees. Shri Aney, the learned Counsel has given a great emphasis on this crucial aspect that elections not only to the Board of Trustees but also to the Managing Committee were ordered. According to him, the impugned order of the Charity Commissioner under which the Board of Trustees and the Managing Committee both were appointed, has been wholly set aside by the City Civil Court, and therefore, elections for both the bodies must be held as contemplated by the impugned order of the City Civil Court.

10. Shri Jahagirdar. the learned Counsel for the appellants has made it absolutely clear that his clients have no objection for the elections to the Board of Trustees and he has made this statement after getting instructions from his clients who are present in the Court.

11. The only issue which both the sides have hotly and keenly contested is the question of holding elections to the Managing Committee. According to Shri Sakhare, the learned Counsel for the intervenors who are the members of the existing Managing Committee, the order of the City Civil Court is clear and is not affecting the present Managing Committee which should continue to function for its whole tenure of five years under the Scheme. He has pointed out from record various factors in support of his submissions.

12. Before I deal with the contentions of both the sides it would be appropriate to trace the source of the controversy which has been created out of hallow prestige by a few in this large community. The Trust viz. Cutchhi Visa Oswal Deravasi Jain Mahajan Trust was registered under the provisions of the Bombay Public Trust Act, 1950. This High Court had framed a Scheme of the Trust in the year 1941 and since then the

Trust was satisfactorily functioning for the larger welfare of the community. Perhaps the management realised the outdatedness of the scheme of 1941, it proposed a modified scheme and placed before the Annual General Meeting of the Members of the Trust and got it approved on 1-10-1985. An application No. 92/1987 was filed before the Charity Commissioner for setting the aforesaid modified scheme. The Trustees, including the appellants and the respondent No. 1, filed an application before the said authority under Section 51 of the Bombay Public Trust Act for leave to file a suit for set-ting the modified scheme. The Charity Commissioner had granted such leave and there after all the Trustees including the appellants filed a suit (Suit No. 2301/1995) for getting the Scheme sanctioned by the Court and the City Civil Court decreed the suit approving the new-modified scheme on 11-7-1996. It further appears that on 26-5-2000 an application appears to have been tiled by the Respondents 2 and 3 under Section 50A of the Act for settlement of another new scheme to govern the affairs of the Trust. The Asstt. Charity Commissioner allowed the said application immediately on 31-5-2000 and sanctioned a fresh scheme for the Trust under which the present Board of Trustee and the Managing Committee of 32 members was nominated as the first appointees. The respondent No. 1 in the present appeal who was holding the post of the Managing Trustee was aggrieved by the said order and therefore approached the City Civil Court in Charity Application No. 4 of 2000 against the said order of the Charity Commissioner under Section 72 of the Act. In the said application the City Civil Court refused to grant any interim order and therefore the matter was carried in this Court. Considering all the facts and circumstances my learned brother Dr. D. Y. Chandrachud, J. by his order dated 9-11-2000 remanded the matter back to the learned Principal Judge of the City Civil Court for final decision of the application on time bound basis. On remand the said application was finally heard and disposed of by the present impugned order passed by the learned Principal Judge of the City Civil Court. He was pleased to set aside the order dated 31-5-2000 passed by the Asstt. Charity Commissioner. He had also directed the Board of Trustees to continue for a period of six months and to automati-

cally stand dissolved on 30-6-2001. The said ad hoc Board of Trustees was directed to carry out day to day administration of the Trust but not to take any major policy decision. The learned Judge, inter alia, appointed an Election Commission for holding fresh election to Trusteeship of the Trust consisting of the persons named in the order. He also gave certain consequential orders. The effect of the said order of the City Civil Court was the setting aside of the order passed by the Asstt. Charity Commissioner on 31-5-2000 whereunder he had appointed the Board of 9 Trustees and the Managing Committee of 32 members. The present appellants being the members of the Board of Trustees appointed by the Asstt. Charity Commissioner are aggrieved by the impugned order of the City Civil Court and they do not want any election and they want to enjoy the office till its tenure. Shri Sakhare submits that the appointment of the 32 members of the Managing Committee is kept in tact by the City Civil Court.

13. In support of the appeal Shri Jahagirdar, the learned Counsel appearing for the appellants has fairly made a statement at this stage of hearing of the civil applications that his clients will have no objection if fresh elections are held in accordance with the orders passed by the City Civil Court. In this view of the matter I do not think any controversy would survive in the present appeal as far as the Board of Trustees is concerned.

14. The dispute however does not come to an end though the Trustees have acted fairly and have shown their willingness to face fresh elections. The Managing Committee however is not prepared to give-up the power which they snatched from the Asstt. Charity Commissioner by his order dated 31-5-2000. Shri Sakhare, the learned Counsel appearing for some of the Managing Committee members as intervenors has submitted that in the impugned order of the City Civil Court the appointment of the Managing Committee is not set aside though the appointment of the Board of Trustees was set aside. He, therefore contends that the Managing Committee has every right to continue for the complete tenure of five years and that the Managing Committee would not accept any elections before the expiry of the term. According to Shri Sakhare, the question or the issue of the appointment of the

Managing Committee was not raised by the applicants before the City Civil Court. Shri Sakhare pointed out from the pleadings and the order that the question of validity of the appointment of Managing Committee was not in the forefront of the Court and not even the applicant-the respondent in the appeal. Shri Sakhare points out that no member of the Managing Committee was impleaded in the said application before the City Civil Court as a necessary and proper party. There was no reference or averment to the Managing Committee in the said application and no grievance was made against its appointment. Shri Sakhare has pointed out that the operative part of the order should be read in the context of para 19. Shri Sakhare further points out that though a review application was made before the City Civil Court at that stage there was no reference to the Managing Committee. The said review application was withdrawn on the ground that the impugned order of the City Civil Court was challenged by filing the present appeal before the High Court. According to Shri Sakhare, the clarification in respect of the elections to the Managing Committee ought to have been sought and ought to have been got from the City Civil Court but such review application was withdrawn. According to Shri Sakhare the main challenge was to the appointment of Board of Trustees only and not to the appointment of the Managing Committee.

15. Shri Aney on the other hand has vehemently contended that the City Civil Court has set aside the order of the Asstt. Charity Commissioner as a whole and nothing Is excluded from the said order. According to Shri Aney even the intervenors have clearly understood that the order of the City Civil Court had ousted the Managing Committee also. Shri Aney has pointed out that in the eyes of law under Section 2(18) of the Bombay Public Trust Act a Trustee includes a member of the Managing Committee and therefore, if a trustees is ousted it would include the ouster of the entire Managing Committee including the Board of Trustees. Even then according to Shri Aney there are Complete pleadings in spite of illegal appointment of the Managing Committee by the Asstt. Charity Commissioner. Shri Aney has pointed out that even the Asstt. Charity Commissioner, who has filed his affidavit in reply before the City Civil Court had ac-

cepted his fault of hasty order as he was completely mislead by the present appellants. He has filed a detailed affidavit before the City Civil Court which according to Shri Aney discloses a complete fraud played by them on the learned authority who was about to retire on 31-5-2000. The said authority himself has candidly admitted on oath that he was completely mislead In the matter and if he had complete disclosure of the facts he would not have passed the order which he had passed to appoint the Board of Trustees and the Managing Committee. In the light of the aforesaid affidavit by a quasi judicial officer, says the learned counsel, the whole order passed by him deserves to be dismissed and the City Civil Court has done the same right thing. Shri Aney has contended that his client had challenged the whole order passed by the Asstt. Chanty Commissioner which included the appointment of the Managing Committee and the City Civil Court had set aside the whole order unconditionally and without any reservations or exception of the Managing Committee.

16. I have set out the contentions of the learned Counsel on both the sides as they had canvassed their points as if I was hearing and finally disposing of the first appeal. To some extent and indeed I have done so after the marathon arguments on both the sides, they were justified to substantiate their submissions by referring to the entire material. To be fair to both of them I have therefore thought it proper to set out their contentions in the maximum details at the cost of space and time and I have done so to avoid the charge of not considering their submissions.

17. At the outset I do agree with Shri Aney the learned Counsel for the respondents that what the City Civil Court has done is to set aside in its entirety the order dated 31-5-2000 passed by the Asstt. Charity Commissioner. There is no exclusion or exception made to the appointment of the Managing Committee by the Asstt. Charity Commissioner. If we read the order of the Asstt. Charity Commissioner, his affidavit in reply before the City Civil Court and the final order of the City Civil Court one has to conclude that the learned Principal Judge of the City Civil Court had definitely in his mind to set aside the whole order of the learned Asstt. Charity Commissioner for the reasons recorded by the learned Judge. The foremost reason appears to be that the Asstt. Charity Commissioner passed the said order without giving notice to the respondents and modified the 1985 scheme in force in their absence. The Asstt. Charity Commissioner has explained verbatim what had happened which only shows that the said order was virtually wangled from him. He was certainly mislead and there was suppression of material from him. He has stated in his affidavit that had that material been brought before him he would not have passed the order which was under challenge before the City Civil Court. The City Civil Court had taken a serious note of this fact in the last lines in paragraph 17 of the order which reads as under :

"The. Asstt. Charity Commissioner's order shows that there was no material produced before him for approving the scheme and appointment of the first trustees. The Asstt. Charity Commissioner appears to have noted in indecent haste, apparently at the instance of the respondents, in getting the scheme approved and the first Board of Trustees appointed for a period of five years. The order clearly is not sustainable and will have therefore, to be set aside."

The Principal Judge of the City Civil Court as a full-fledged Judicial Officer would not allow such an order to remain on record to the extent of appointment of Managing Committee and would wholly set aside it to the extent of the appointment of Board of Trustees. From the totality of the situation as reflected in the entire material there is no doubt in my mind that the entire order of the Asstt. Charity Commissioner appointing the Board of Trustees as well as Managing Committee deserve to be set aside. The said order was wangled from the said authority through fraud and in an indecent haste at the instance of the present appellants, who were the respondents before the City Civil Court. It cannot be said that such a perverse order was allowed to continue on record to the extent of the appointment of the Managing Committee. The City Civil Court has rightly set aside the whole order which includes the appointment of the Board of Trustees and also the appointment of the Managing Committee. No doubt at places the learned Judge has only referred to the Board of Trustees and that there is no extensive or specific reference to the Managing Commit-

tee. By this in advertent omission the intervenors cannot be allowed to take undue advantage of their own fraud which they played on the learned Asstt. Charity Commissioner who in his remorseful affidavit has narrated the entire situation. It is significant to note that the learned Asstt. Charity Commissioner did not know the Gujarati language and the modified scheme placed before him was in Gujarati language without its English or Marathi translation. The learned authority has candidly on oath admitted his mistake with a full sense of responsibility. He has also gone to this extent that the respondents before the City Civil Court had suppressed the facts and material. According to him, the intervenors are trying to take advantage of their own wrong which they cannot be allowed to do. They went to continue in the power by hook or crook. It is to the credit of the Board of Trustees that they have volunteered to face the elections. It would have been graceful for the Managing Committee also to have faced the electoral and to have got elected democratically and not to stick to the chair which they got under a wrong order wangled by them from the Court in a hurry. It would have of course been better if the learned Principal Judge were to name both the bodies in his order viz. the Board of Trustees and the Managing Committee. That however does not give any advantage to the Managing Committee as he has set side the whole order of the learned Asstt. Charity Commissioner where under they were appointed.

18. It would be in the interest of the community to allow the entire body of the members of the Trust to elect the Board of Trustees and also the Members of the Managing Committee. It is further significant to note that no ordinary members have come forward in support of the contention of the present Managing Committee. It would be in the interest of the Trust of and the whole community that the Trust is managed by the democratically elected bodies, both the Board of Trustees and the Managing Committee. If the Board of Trustees have voluntarily given up their seats I fail to understand why the Managing Committee should hold on the seat of Membership of the Managing Committee. They also ought to have followed the illustration set by the Board of Trustees and they also ought to have approached the members of the community to..

entrust to them the responsibility of the Trust. They want to enjoy the windfall which they got under the wrong order of the Asstt. Charity Commissioner.

19. The entire preparatory work of election process is complete. The voters list is fully ready. The voters would be required to vote for the Board of Trustees. This entire process will have to be again repeated after a period of 2/3 years to elect the Managing Committee thereafter again elections will have to be held for the Board of Trustees. This will multiply the election expenditure. It will therefore be in the interest of the Trust that election to both the bodies are held simultaneously so that harmony is established in both the bodies and multiplicity of the work and the expenditure is totally obviated. The voters would also be required to vote twice within a short period.

20. In the aforesaid circumstances the Civil Applications are partly allowed in terms of prayer Clause (a) only and the civil applications are dismissed and no other relief is granted as prayed in the said civil applications. It is specifically declared that the City Civil Court order includes the elections to the Managing Committee.

21. After the pronouncement of the aforesaid order I proposed to pass the working order for the proposed elections to be held for the bodies of Board of Trustees and the Managing Committee.

I hereby appoint Election Commission to hold and complete the election on or before 30-4-2002.

Shri Harakchand Gada, the learned Solicitor of this Court would be the Chairman of the Election Commission. The members of the Election Commission are appointed as under by consent of all the parties.

1. Maneklal A. Gala.

2. Padamsi S. Shah.

3. Chandulal Framewala.

4. Popatlal B. Shah.

5. Chapsi H. Tubadiwala.

6. Axmichand Vershi Karani.

The Election Commission shall start functioning as early as possible in accordance with the relevant election rules of the Constitution.

The Commission shall make available a true copy of the voters list prepared as on

30-4-2001 to all those who apply for such a copy on payment of a price to be fixed by the Commission.

The Election shall be held as per the rules/constitutlon/scheme as modified by this order.

Election will be completed and the results will be declared not later than 30-4-2002.

It will however be desirable if the election work is completed even earlier than the aforesaid outer limit as per the convenience of the Commission.

The Commission shall also nominate the suitable Returning Officer/Officers for the purpose of work of Polling, counting and declaration of results.

The Commission shall nominate the persons as Returning Officer/Officers who are not in any controversy of any nature in relation to the affairs of the Trust.

As far as the honorarium to be paid to Shri Gada who has agreed to discharge the duties to complete the election of the Trust as a token of this work done by him will be decided by the newly elected Board of Trustees.

22. All concerned to act on an ordinary copy of this order duly authenticated by the Sheristedar of this Court.

23. In view of the above order the Civil Application No. 2397 of 2001 and the Civil Application No. 2612 of 2001 stand disposed of. By consent in view of the order nothing survives in the main appeal and therefore the same is disposed of, the cross-objections and any other affiliated proceedings also stand disposed of.

24. The appeal is disposed of with no order as to costs. All the Civil Applications arising from the appeal are also disposed of as above.