Bombay High Court
Paraskumar vs Sureshkumar Hukumchandji ... on 13 August, 2008
Bench: D.G. Karnik
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 487 OF 2008
1. Paraskumar S/o Bhalchand
Thole, Age : 59 years,
Occu.: Business,
R/o At Post- Sajjanpur,
Tq. Khultabad,
Dist. Aurangabad
2. Mukesh S/o Ramlal Kasliwal,
Age : 35 years, Occu.: Agril.,
R/o At Post- Adul,
Tq. Paithan, Dist. Aurangabad .. Appellants
(Ori. Resp. no.3 and 11)
VERSUS
1. Sureshkumar Hukumchandji Kasliwal,
Age : 51 years, Occu. : Business,
R/o Adul, Tq. Paithan,
Dist. Aurangabad
2. The Asstt. Charity Commissioner,
Aurangabad, C/o Office of the
Joint Charity Commissioner, near
Baba Petrol Pump, Aurangabad
3. Shri Kailashchandji S/o
Uttamchand Chandiwal,
Age : 54 years, Occu.: Judicial
Service, R/o Civil Court, Marine
Line, Churchgate, Mumbai
4. Dipak S/o Uttamchand Thole,
Age : 57 years, Occu.: Business,
R/o 703, Alaknanda Nilkanth
Valley, Rajawadi, Ghatkoper
(East), Mumbai 400 077 .. Respondents
(Ori. Resp. 1 to 3)
5. Shri Mansukhlaji S/o
Ganeshlaji Jain, Age : 86 years,
Occu.: Nil., R/o At Post
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Sajjanpur, Tq. Khultabad,
Dist. Aurangabad
6. Kulbhushan S/o Motisa Savaji,
Age : 67 years, Occu.: Business,
R/o Bharat Mechinery Stores,
Shahaganj, Aurangabad
7. Dilip S/o Fhulchand Kala,
Age : 56 years, Occu.: Business,
R/o Post Kachner, Tq. and
Dist. Aurangabad
8. Manikchandji S/o Balchandji
Gangawal, Age : 65 years,
Occu.: Business, R/o Gangawal
Niwas, Shahaganj,
Aurangabad
9. Hiralalji S/o Fakirchand
Chudiwal, Age : 65 years,
Occu. : Business, R/o At Post
Shrirampur, Tq. Shrirampur,
Dist. Ahmednagar
10. Hiralalji S/o Motilal Kasliwal,
Age : 85 years, Occu.: Agril.,
R/o At Post Pimpri Raja,
Tq. and Dist. Aurangabad
11. Asaramji s/o Dhondiramji
Shirsagar, Age : 68 years,
Occu.: Nil, R/o At Post
Gangapur, Tq. Gangapur,
Dist. Aurangabad .. Respondents
(Ori. Resp. 4 to 11)
WITH
SECOND APPEAL NO. 488 OF 2008
1. Paraskumar S/o Bhalchand
Thole,
Age : 59 years, Occu.: Business
R/o At Post - Sajjanpur,
Tq. Khultabad, Dist. Aurangabad
2. Mukesh S/o Ramlal Kasliwal,
Age : 35 years, Occu. : Agri.,
R/o At Post Adul, Tq. Paithan,
Dist. Aurangabad .. Appellants
(Ori Resp. 3 and 11)
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VERSUS
1. Shri Babanlal S/o Chunnilal
Kasliwal, Adulkar,
President, Managing Committee
of the Shri Chaintamani
Paraswanath Digamber Jain
Atishay Kshetra Kachner,
Tq. and Dist. Aurangabad
Age : 70 years, Occu.: Business,
R/o Chauraha, Opp. Bank of
Mahararshtra, Aurangabad
2. Shri Trilokchandji S/o
Bansilal Pande Honorary
Secretary of Shri
Chaintamani Paraswanath
Digamber Jain Atishay
Kshetra Kachner, Tq. and
Dist. Aurangabad,
Age : 67 years, Occu.: Business,
R/o Chauraha, Opp. Bank of
Maharashtra, Aurangabad
3. Shri Rajabhau S/o Bansilal
Patni, Age : 62 years,
Occu.: Business,
R/o Bharat Press Shrirampur,
Dist. Ahmednagar
4. Prakash S/o Shikharchand
Ajmera, Age : 35 years,
Occu.: Business, R/o Near
Jawahar Nagar Police Station,
Ajmera Marble, Garkheda,
Aurangabad
5. Ravindra s/o Punamchand
Bakliwal, Age : 50 years,
Occu.: Business, R/o TV Centre,
CIDCO, Aurangabad .. Respondents
(Ori. Appellant 1 to 5)
6. Shri Kailashchandji S/o
Uttamchand Chandiwal,
Age : 54 years, Occu.:
Judicial Service, R/o
Civil Court, Marine Line,
Churchgate, Mumbai
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7. Dipak S/o Uttamchand Thole,
Age : 57 years, Occu.: Business,
R/o 703, Alaknanda Nilkanth
Valley, Rajawadi, Ghatkopar,
(East), Mumbai 400 077 (Ori. Resp. 1 and 2)
8. Shri Tansukhlaji S/o
Ganeshlaji Jain, Age : 86
years, Occu.: Nil.,
R/o At Post Sajjanpur,
Tq. Khultabad, Dist. Aurangabad
9. Kulbhushan S/o Motisa Savaji
Age : 67 years, Occu.: Business,
R/o Bharat Matrimony Stores,
Shahaganj, Aurangabad
10. Dilip S/o Fhulchand Kala,
Age : 56 years, Occu.: Business,
R/o Post Kachner, Tq. and
Dist. Aurangabad
11. Manikchandji S/o Balchandji
Gangawal, Age : 65 years,
Business, R/o Gangawal
Niwas, Shahaganj,
Aurangabad
12. Hiralalji S/o Fakirchand
Chudiwal, Age : 65 years,
Occu.: Business,
R/o At Post Shrirampur,
Tq. Shrirampur,
Dist. Ahmednagar
13. Hiralalji S/o Motilal
Kasliwal,
Age : 85 years, Occu.:
Agril., R/o At Post
Pimpri Raja, Tq. and
Dist. Aurangabad
14. Asaramji S/o Dhondiramji
Shirsagar, Age : 68 years,
Occu.: Nil, R/o At Post
Gangapur, Tq. Gangapur,
Dist. Aurangabad .. Ori. Resp. 4 to 10
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15. Suganchandji S/o Punamchandji
Kala, Age : 55 years,
Occu.: Agril., R/o At Post
Adul, Tq. Paithan,
Dist. Aurangabad
16. The Asstt. Charity
Commissioner, Aurangabad
C/o Office of the Jt. Charity
Commissioner, near Baba
Petrol Pump, Aurangabad .. Ori. Resp. 12 and 13
ig WITH
SECOND APPEAL NO. 490 OF 2008
1. Paraskumar S/o Balchand Thole,
Age : 59 years, Occu.: Business,
R/o at Post - Sajjanpur,
Tq. Khultabad, Dist. Aurangabad
2. Mukesh S/o Ramlal Kasliwal,
Age : 35 years, Occu.: Agril.,
R/o At Post- Adul, Tq. Paithan,
Dist. Aurangabad .. Appellants
(Ori. Resp. 3 and 11)
VERSUS
1. Trilokchand Shivlal Pande,
Age : 52 years, Occu.: Business,
R/o Pachod, Tal. Paithan,
Dist. Aurangabad
2. Shri Madanlal S/o Khushalchand
Kasliwal, Ex. Mantri, Gajpantha
Atishay Ksetra Nashik and
Ex-President of Education
Committee, Kachner, Age : 70 yrs.,
Occu.: Retired Engineer,
Railway Deptt., R/o Chetna Nagar,
Aurangabad
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3. Ramanlal S/o Shantilal Kasliwal
Ex. Treasurer of and Vice President
of Karyakarini Mandal, Kachner,
R/o Arihant Nagar, Age : Major,
R/o : Sindhi Colony, Aurangabad
4. Chandrakumar S/o Zumbarlal
Patni Vice President of
Karyakarini Mandal Kachner,
Age : Major, Occu.: Agril.,
R/o Arihantnagar, Aurangabad
5. Arun S/o Kesharchand Patni,
Secretary of Digambar Jain
Samaj Aurangabad and Secretary
of Shantinath Jain Social Group,
Aurangabad Age : 45 years,
Occu.: Business, R/o Plot No.54,
Vedant Nagar, Aurangabad .. Respondents
(Ori. Appellants 1 to 5)
6. Vardhaman S/o Bansilal Pande,
Age : 65 years, Occu.: Business,
Vice President of Digamber,
Jain Atishay Kshetra,
Ellora R/o New Samarthnagar,
Aurangabad
7. Dr. Ramesh S/o Kshushalchand
Badjate, President of Jain
Social Club, Aurangabad and
Presidnet of Jain Social Club,
Aurangabad and President of
Pulak Chena Manch,
Aurangabad, Age : 48 years,
Occu : Doctor, R/o Rajabazar,
Aurangabad
8. Mahavir S/o Mishrilal Thole,
Age : 39 years, Occu.: Business,
R/o Arihant Nagar,
Aurangabad
9. Sunil S/o Sundarlal Ajmera,
Ex Secretary of Gurukul
Samiti Kachner and Member
of Jt. Group, CIDCO,
Aurangabad, Age : 45 years,
Occu. : Business, R/o Thakarenagar,
N-2, CIDCO, Aurangabad
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10. Rajendra Kumar S/o Sukhlal
Patni, Age : 60 years, Occu.:
President of Arihant Nagari,
Patsanstha, Aurangabad
R/o Chouraha, Aurangabad .. Respondents
(Ori. Appellants 1 to 10)
Mr. D.S. Bharuka for the Appellants
Mr. S.V. Gangapurwala for Respondent nos. 4, 6 to 9
and 11 in SA. 487/2008
Mr. V.J. Dixit, Sr. Advocate h/f. Mr. S.S. Dambe for
respondent no.1 in SA. 487/2008 and for respondent
nos. 2 to 5 in SA. 488/2008 and for respondent nos.
1, 2, 4 to 10 in SA. 490/2008
Mr. R.B. Deshpande h/f. Mr. S.S.
respondent no.1 in SA. 488/2008
Dambe for
CORAM : D.G. KARNIK, J.
DATE : 13.08.2008
ORAL JUDGMENT:-
1. Heard.
2. These three appeals are directed against
the common judgment and order dated 10.3.2008 passed
by the District Judge-2, Aurangabad allowing
applications bearing MARJI nos. 155 of 2006, 141 of
2006 and 156 of 2006, filed under section 72 of the
Bombay Public Trusts Act, 1950 (for short the B.P.T.
Act).
3. At the outset it may be mentioned that in
Shivprasad Shankarlal Pardeshi v. Leelabai
Badrinarayan Kalwar reported in AIR 1998 BOMBAY 131 a
Division Bench of this Court has held that an appeal
against the order passed by the District Judge in
application under section 72 of the Bombay Public
Trust Act, is in the nature of second appeal and
would be governed by the limitations imposed by
section 100 of the Code of Civil Procedure and can be
admitted only as regards a substantial question of
law.
4. A trust by name Shri Chintamani Parshwanath
Digambar Jain Atishay Kshetra Kachner is registered
under the B.P.T. Act under registration no.
BTR/A/3054 and the same is hereinafter referred to as
"the Trust". It appears that some persons made a
complaint about mis-administration and mis-management
by the trustees of the Trust. The Assistant Charity
Commissioner, appointed an Inspector working in his
office to conduct a preliminary enquiry and submit a
report. After the preliminary enquiry the Inspector
submitted his report on 15.1.2004. On the basis of
the report of the Inspector the Assistant Charity
Commissioner issued a notice to the trustees. The
trustees sent their reply on 14.5.2004. After
consideration of the report of the Inspector and the
reply of the trustees the Assistant Charity
Commissioner, initiated a suo-motu enquiry vide an
order dated 25.8.2004 and issued notices of enquiry
to the complainant and trustees to show cause why a
scheme under section 50-A of the B.P.T. Act be not
framed for the better administration of the trust.
All the trustees appeared and filed their response to
the notice.
After hearing the trustees the Assistant
Charity Commissioner, by his judgment and order dated
31.3.2006, framed a scheme for the better management
and administration of the Trust and appointed 11
persons as the first trustees of the trust.
Aggrieved by the decision of the Assistant Charity
Commissioner framing the scheme, three groups of
persons filed three separate applications under
section 72 of the B.P.T. Act before the District
Court for setting aside the decision of the Charity
Commissioner. All the three applications were heard
together and by a common judgment and order dated
10.3.2008 the District Judge 2, Aurangabad allowed
the applications and set aside the order of the
Assistant Charity Commissioner. That order is
impugned in these appeals.
5. Appellants were two of the existing
trustees of the Trust before the scheme; they are
also the trustees appointed as first trustees under
the scheme framed by the Assistant Charity
Commissioner under section 50-A of the B.P.T. Act.
However, since the scheme framed by the Assistant
Charity Commissioner has been set aside by the
District Court fearing that they may lose original
trustyship they appear to have approached this Court
challenging
the order of the District Court setting
aside the order of the Assistant Charity Commissioner
framing the scheme.
6. Learned counsel for the appellants
submitted that the original applications made by
three group of applicants under section 72 of the
B.P.T. Act were not maintainable as they had no
locus standi to challenge the order of the Assistant
Charity Commissioner. He therefore submitted that
the order of the District Judge requires to be set
aside. He further submitted that the observations
made by the learned District Judge in paragraph 16
and 25 of his order tend to suggest that the notices
were not issued to the original trustees. These
observations were patently incorrect inasmuch as
notices were issued to all the trustees and they were
heard in the matter. The order of the District Judge
proceeds on the wrong premise that the Assistant
Charity Commissioner passed the order without notice
to the trustees and therefore the order of the
District Judge is erroneous and perverse and is
required to be set aside.
7. As regards the first ground about the
maintainability
ig of the applications before the
District Court, section 72 of the B.P.T. Act
provides that any person aggrieved by the decision of
the Charity Commissioner under section 40,41, (41C
and 43(2) (a) and (c), 50-A, 70 or 70-A or on the
questions whether a trust exists and whether such
trust is a public trust or whether any property is
the property of such trust may, within sixty days
from the date of the decision, apply to the Court to
set aside the said decision. Thus any person
aggrieved by the decision of the Charity Commissioner
under section 50-A of the B.P.T. Act is entitled to
file an application under section 72 for setting
aside of the order. In my view, a person aggrieved
by the decision of the Charity Commissioner need not
be a trustee. Any member of a trust, or a
beneficiary who has a right to participate in
activities of a trust may also feel aggrieved by a
decision of the Charity Commissioner framing or
refusing to frame a scheme under section 50-A of the
B.P.T. Act. For example if by the original trust
deed a person has right to do a certain thing and
under the scheme proposed and approved by the Charity
Commissioner under section 50-A that right of the
person is taken away, he would be a person aggrieved.
It would depend upon facts and circumstances of each
case as
to who is a person aggrieved. No general
proposition can be laid down that only the trustees
would be the persons aggrieved by an order of the
Charity Commissioner passed under section 50-A of the
B.P.T. Act. A person whose rights under the
existing Trust are taken away by a scheme framed
under section 50-A of the B.P.T. Act would
ordinarily be a person aggrieved. Similarly in case
of a religious trust, wherein a member of public has
right to worship at a particular place may also feel
aggrieved if his right to worship is taken away by
the proposed scheme under section 50-A of the B.P.T.
Act. The respondent no.1 in second appeal no. 487
of 2008, who was the applicant in MARJI no. 141 of
2006 was a member of a special committee framed in
accordance with clause no.17 of the trust deed.
Under the said clause no.17 he had certain rights in
the management of the trust. These rights do not
appear to have been preserved by the scheme under
section 50-A of the B.P.T. Act. Learned counsel for
the appellants was unable to point out any provision
in the scheme preserving his right which he had as a
member of the special committee under the original
trust deed. In the circumstances it cannot be said
that respondent no.1 in second appeal no. 487 of
2008 was not a person aggrieved by the order of the
Assistant Charity Commissioner framing of the scheme.
Consequently he had a right to file an application
under section 72 of the B.P.T. Act. Similar appears
to be the position in respect of applicants in MARJI
no. 155 of 2006 as well as MARJI no. 156 of 2006.
Applicants therein also had certain rights under the
original trust deed which were not preserved under
the scheme framed by the Charity Commissioner under
section 50-A of the B.P.T. Act. In any event even
if one application was maintainable that would be
sufficient inasmuch as in all the applications the
same relief namely setting aside the order of the
Assistant Charity Commissioner was claimed.
8. As regards the observations made by the
learned District Judge in paragraph 16 and 25 of his
judgment they do suggest that notices were not served
on all the trustees and they were not given an
opportunity of being heard. This appears to be
contrary to the observations made by the Assistant
Charity Commissioner in his order wherein he has
stated that after the receipt of the report of the
Inspector notices were issued to the trustees, they
appeared and filed their response to the proposed
scheme. Thus it appears that these observations made
by the District Judge that the trustees were not
given
a proper opportunity of hearing before framing
of scheme under section 50-A are erroneous. However,
that is not the ground or the only ground on which
the learned District Judge has set aside the order of
the Assistant Charity Commissioner. The District
Judge has set aside the order on the ground that it
was not proved that Assistant Charity Commissioner,
Aurangabad had a reason to believe that the scheme
should be settled in the interest of the proper
management or administration of the public trust.
The first issue framed by the District Court and his
answer thereto is quoted below:-
Point Finding
"1. Whether Asstt. Charity
Commissioner Aurangabad had reason
to believe that in the interest of No
the proper management or
administration of the public
trust, the scheme should be
settled for it?"
. Thus the order of the Assistant Charity
Commissioner has been set aside not on the ground of
non-issuance of notices to the trustees but on the
ground that there was no reason to belive that in the
interest of proper management or administration the
scheme should be settled.
9. No arguments were advanced by the learned
counsel for the appellants that this finding is in
any way erroneous, much less perverse. As stated
earlier the second appeal can be admitted only on a
substantial questions of law and not on a finding of
fact. In my view no substantial question of law
arises in this appeal, requiring its admission.
10. Section 50-A of the B.P.T. Act provides
that where the Charity Commissioner has a reason to
believe that in the interest of proper management, or
administration of public trust, a scheme should be
settled for it, or where two or more persons having
interest in public trust make an application to him
in writing in prescribed manner that in the interest
of proper management, or administration of the public
trust a scheme should be settled for it, the Charity
Commissioner may, after giving the trustees of such
trust opportunity to be heard, after he is satisfied
that it is necessary or expedient so to do, permit a
scheme for the management or administration of such
trust. The power of the Charity Commissioner to
frame a scheme is not un-briddled. It can be
exercised only
ig if he is satisfied that in the
interest of the proper management or administration
of a public trust a scheme should be settled. The
Charity Commissioner must have a reason to believe
so. That reason to believe must be based on
objective assessment of facts. He cannot frame a
scheme at the whim or caprice. The existence of a
necessity to frame a scheme in the interest of the
proper management or administration of a public trust
is a sina-qua-non for framing of a scheme under
section 50-A of the B.P.T. Act. Whether the trust
is ancient and it's origin is not known, the trust
has no written constitution or a proper set of rules
for the management and administration of trust and
there exist circumstances from which it can be
reasonably inferred that a trust is not well managed
or mismanaged and that mismanagement can reasonably
be attributed to absence of a trust deed or a written
constitution or set of rules of governance or
management the Charity Commissioner may readily
believe that it is necessary to frame a scheme for
the proper management or administration of the trust.
But where a trust is created by a trust deed which
contains the basic objects of the trust and the set
of rules for the proper management or administration
of the trust, the Charity Commissioner's must have
due regard to the wishes of the settlor and cannot on
his whim say that the trust could be better managed
if it is governed by another set of rules or another
constitution settled by a scheme framed under section
50-A of the B.P.T. Act. In the present case the
trust was created by written deed of indenture dated
28.4.1961, a copy of which is annexed to the appeal
memo. It does contain the rules for the
administration and management of the trust. The
order of the Charity Commissioner does not disclose
how these rules are in-sufficient for the proper
management and administration of the trust. In the
circumstances the finding recorded in the negative by
the learned District Judge that the Assistant Charity
Commissioner could not in law had a reason to believe
that in the interest of the proper management or
administration of the Trust a scheme should be
settled for it was in any way erroneous, much less
perverse.
11. No ground for interference is made out.
Consequently the appeals are dismissed summararily.
(D.G. KARNIK),
JUDGE
arp/1388/487
