Bombay High Court
Unknown vs Sau. Bharat Atmaram Suryawanshi & ... on 24 October, 2013
Bench: S.S. Shinde
383.12-fa
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
FIRST APPEAL NO.383 OF 2012
WITH
CIVIL APPLICATION NO.865 OF 2012
IN
FIRST APPEAL NO.383 OF 2012
Kashinath Trimbak Sane & Ors. ...Appellants
V/s.
Sau. Bharat Atmaram Suryawanshi & Ors. ...Respondents
Mr. Dilip Bodake for the appellants.
Mr. A. S. Khandeparkar for the respondents.
ig CORAM: S.S. SHINDE, J.
JUDGMENT RESERVED ON : OCTOBER 9, 2013
JUDGMENT PRONOUNCED ON : OCTOBER 24, 2013
P.C. :
1. This appeal takes exception to the judgment and order dated 3 rd
July 2008 passed by the Assistant Charity Commissioner, Satara Region,
Satara (Assistant Charity Commissioner) in Scheme Application No.22
of 2007 which was confirmed by the District Judge, Karad in Misc.
Application (Trust) No.74 of 2011 on 30th November 2011.
2. Respondent Nos.1 and 2 herein i.e. original applicants filed
Scheme Application No.22 of 2007 before the Assistant Charity
Commissioner under section 50-A(1) of the Bombay Public Trusts Act
1950 (the said Act) praying therein to frame and settle a scheme for
better and efficient management of devasthan in question. It is the
case of the appellants that, along with enquiry (scheme) application,
respondent Nos.1 and 2 filed a draft scheme, consent letters of two
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proposed trustees appointed under the scheme, photocopies of
handwritten proceedings of meeting dated 15th October 2007, list along
with signatures of villagers who have attended the meeting, photocopy
of P.TR. extract and affidavit of applicant in lieu of examination in chief.
3. On 16th April 2008, the Assistant Charity Commissioner issued
notice to the opponents. It is the case of the appellants that in absence
of the appellants, the Assistant Charity Commissioner was pleased to
hear respondent Nos.1 and 2 and allowed the enquiry (scheme)
application No.22 of 2007 thereby confirming the scheme of
Bahuleshwar Dev, Bahule, Taluka Patan, Dist. Satara having its
registration No.A-52/Satara and further ordered that the names of the
persons shown at clause 6 of the settled scheme at Annexure-A shall be
the first Board of Trustees and further it was ordered that the
devasthan shall be administered as per the provisions of the scheme.
4. It is the case of the appellants that the order passed by the
Assistant Charity Commissioner was exparte. Pursuant to the said
order, respondent No.1 and 2 herein filed the application before the
Revenue Village Officer (Talathi) to record their names in the record of
rights of the lands owned by the Trust. Pursuant to filing of such
application, the appellants herein received notices on 6 th November
2008 and 12th August 2008. It is the case of the appellants that first
time, the appellants got the knowledge of passing of the order by the
the Assistant Charity Commissioner. It is further case of the appellants
that after collecting the relevant documents on 15 th December 2008
they have filed Trust Application No.74 of 2011 (Old No.3 of 2009)
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before the District Court, Satara under section 72 of the said Act on
various grounds of objections. It is further case of the appellants that
along with said application, as a precautionary measure, the applicants
filed the application for condonation of delay below Exhibit 19 which
came to be allowed vide order dated 30th November 2011.
5. On 30th November 2011, District Judge, Karad pleased to dismiss
the appeal thereby confirming the judgment and order passed by the
Assistant Charity Commissioner in Scheme Application No.22 of 2007.
Hence, the present first appeal.
6. With consent of the counsel appearing for the parties, the first
appeal is taken up for hearing. The counsel for the appellants has
placed on record copies of the documents from the record maintained
by the Assistant Charity Commissioner and the record of the District
Court. The compilation of necessary documents on which the
appellants wish to place reliance is already placed on record. In view
of the judgment of this court in the case of Shivprasad Shankarlal
Pardeshi, since deceased by his heirs Vs. Leelabai Badrinarayan
Kalwar since deceased by her heirs & ors 1998(2) Bom. C.R. 744,
when proceedings before District Court under section 72(1) of the said
Act are disposed off, the appeal challenging the judgment and order of
the District court has to be considered on the grounds as available
under section 100 of the CPC. Therefore, though the present appeal is
titled as "First Appeal", in view of the judgment of Shivprasad
(Supra), this appeal can be entertained only if there exists substantial
question of law for consideration.
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7. The learned counsel for the appellants invited my attention to
the grounds taken in appeal memo before the District Court and
submits that, it is the contention of the appellants that, the scheme
framed by the Assistant Charity Commissioner is not in the interest of
the Trust. It is submitted that the Assistant Charity Commissioner is
empowered to frame a scheme, however, only if such scheme is in the
interest of the Trust. It is submitted that out of six trustees appointed,
two trustees are Government Employees and they are staying at
Mumbai which is 400 km. away from the place where the temple is
situated. It is submitted that no proper opportunity was given to the
appellants to put forth their contentions before the Assistant Charity
Commissioner. It is submitted that no notice was served upon Mr.
Kashinath Trimbak Sane appellant No.1 herein though he has worked
as a trustee of the said Trust. It is further submitted that appellant
No.5 Prabhakar Krishnaji Sabnis claims to be a hereditary trustee. It is
submitted that the courts below have not considered that the
tenants/landlords of the Devasthan lands are necessary and proper
parties to scheme application No.22 of 2007 and they are required to
be heard before framing and settling a new scheme which is at
Annexure-A of the scheme application as per the provisions of the said
Act.
8. It is further submitted that appellant Nos.2 to 4 herein were
necessary and proper parties to the scheme application filed by
respondent Nos.1 and 2 and they were required to be heard before
framing the scheme. It is submitted that appellant No.1 i.e. original
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opponent No.1 has not been properly served. It is further submitted
that, appellant No.5 Prabhakar Krishnaji Sabnis is a hereditary trustee
of Shree Bahuleshwar Devsthan Trust and therefore he was a necessary
and proper party to scheme application No.22 of 2007 and required to
be heard before the scheme is settled. It is further submitted that the
scheme framed by the Assistant Charity Commissioner is in violation of
existing practice, custom and rituals of the trust as the trust is
hereditary religious trust, which was properly managed as per section
2(10) read with section 50-A of the said Act. It is submitted that notice
to the appellants giving them hearing before framing a scheme was
mandatory. However, the Assistant Charity Commissioner has not
followed section 18 of the said Act read with Rule 7 of the Bombay
Public Trusts Rules, 1951 (said Rules).
9. It is further submitted that Assistant Charity Commissioner was
not correct in concluding that all the applicants/appellants are not
trustee of the original trust. It is further submitted that in fact, the
proceedings conducted by the Assistant Charity Commissioner below
Exhibit 1 are exparte proceedings. It is submitted that provision of
Oder V Rule 1 to 18 of the Code of Civil Procedure, 1908 (CPC) read
with section 50-A of the said Act have not been followed by the
Assistant Charity Commissioner. It is submitted that respondent Nos.1
and 2 i.e. original applicants are not the persons having interest as
defined under section 2(10) of the said Act. It is further submitted that
scheme framed by the Assistant Charity Commissioner is not for
betterment and efficient administration of Shree Bahuleshwar
Devasthan Trust. It is further submitted that the Assistant Charity
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Commissioner has not given cogent and sufficient reasons to hold that,
the said scheme is in the interest of proper management of the Trust. It
is submitted that the District Court has not framed all points for its
determination as envisaged under Order XLI Rule 31 of the CPC. It is
further submitted that the applicants who filed the application before
the Assistant Charity Commissioner for framing the scheme, are
interested persons and they have become trustees themselves. It is
further submitted that five trustees were appointed by the Assistant
Charity Commissioner and two of them are Government servants. It is
submitted that, appointment of the trustees should have been by
hereditary. It is submitted that, though it is mentioned in the impugned
judgment that notice was served upon Shri Kashinath Trimbak Sane,
such notice was not received by Shri Kashinath Trimbak Sane.
10. It is further submitted that, in the past the said temple was
private temple maintained by the families of Bahulekar and Sane and
therefore, the legal representatives of Bahulekar and Sane are entitled
to be appointed as trustees of the said temple. It is further submitted
that Shree Bahuleshwar Temple situated at village Garvade, Tq. Patan
in Sy. No.320/2 was owned by one Pilaji Sakharam Badwe the said
Badwe had one daughter. Appellant No.5 Prabhakar is son of the
daughter of Shri Pilaji Badwe. According to the appellants, appellant
No.5 has become trustee by way of hereditary, since he is legal
representative of Shri Pilaji Badwe. The counsel invited my attention
to Schedule-A along with the document of mutation of the trust in
which it is mentioned that the land gut No.320/1 which was earlier in
the name of Shri Pilaji Badwe has been entered in the name of Shri
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Prabhakar i.e. appellant No.5. Therefore, according to the counsel for
the appellants, the said Prabahakar Krishnaji Sabnis has become trustee
of the said trust. Therefore, without notice to Shri Prabahkar K. Sabnis,
the Assistant Charity Commissioner should not have passed any orders.
Therefore, relying upon the grounds taken in the appeal memo,
annexures thereto, the counsel appearing for the appellants submits
that the appeal deserves consideration.
11. The counsel for the appellants, in support of his contention that,
it was the duty of the Assistant Charity Commissioner to find out as to
whether any hereditary trustee existed upon death of the original
trustee, placed reliance on the decision of this court (Nagpur Bench) in
the matter of Anil s/o. Govindrao Shirkhedkar Vs. Babanrao
Ganpatrao Wadaskar & Ors. 2013(4) ALL MR 655 and submits that
in the facts of that case, this court held that when Rule 7 of the said
Rules contemplates the manner of enquiry under section 50-A of the
said Act, it includes the enquiry to find out as to whether any
hereditary trust existed upon the death of the original trustee.
Therefore, according to the counsel for the appellants, since there was
no such enquiry either by the Assistant Charity Commissioner or there
was no consideration by the District court in appeal about compliance
of Rule 7 of the said Rules which contemplates the manner of enquiry
under section 50 of the said Act, the order passed by the Assistant
Charity Commissioner deserves to be set aside. The learned counsel for
the appellants, relying upon the reported judgment in the case of this
court in the matter of Vasantrao s/o. Vishwanathrao Mane & Ors. Vs.
Apparao s/o. Baibanna Sidore & Ors. 2008(2) ALL MR 95, in
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particular head-note (A) and (B) thereof, submits that while conducting
the enquiry by the Assistant Charity Commissioner, the Assistant
Charity Commissioner has to record the reasons which could support
the exercise for framing a new scheme. The learned counsel further
invited my attention to the judgment of this court in the matter of
Ganesh Raghunath Dhadphale Vs. Dy. Charity Commissioner & Ors.
2008(1) ALL MR 204, in particular head-note thereof and submits
that, the power under section 50-A of the said Act for framing of a
scheme has been vested in the Assistant Charity Commissioner to
frame a scheme. However, the Assistant Charity Commissioner cannot
frame the scheme of changing the hereditary mode of succession in the
management of the devasthan when it is functioning efficiently and no
grievance has been made regarding mismanagement of the said
devasthan. The counsel further invited my attention to another
judgment in the case of Subhash Trimbakrao Inamdar & Ors. Vs.
Pandurang Tansingh Savner & Ors. 2003 3 Mh.L.J. 131, in particular
head note (b) and (c) thereof. Therefore, relying upon the grounds
taken in the appeal memo, annexure thereto, copies of the evidence
and the judgment of this court as well as the supreme court cited by the
learned counsel for the appellants, submits that the appeal deserves to
be allowed.
12. On the other hand, the learned counsel for the respondents i.e.
original applicants before the Assistant Charity Commissioner submits
that there are concurrent findings of facts recorded by the courts below
and those are not perverse. It is submitted that all the appellants are
not trustees of the original trust and therefore no notices were required
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to be given to them. The counsel invited my attention to PTR, in
particular the extract from the PTR and submits that there was only
one trustee Shri Girish Ramkrishna Bahulekar and there was no any
other trustee by way of hereditary as contended by the appellants. It is
submitted that notice is duly served upon the legal representatives of
Bahulekar and those legal representatives did participate in the
proceedings. It is further submitted that notices were issued to
Kashinath Sane. The learned counsel for the respondents invited my
attention to the statement of Kashinath recorded during enquiry under
section 41D of the said Act. It is submitted that the District Court, in
para 12 of the impugned judgment, has considered the statements of
some of the appellants recorded during enquiry under section 41D of
the said Act. In para 12 of the impugned judgment, the District Court
observed that on perusal of the statements of the original trustees, the
Assistant Charity Commissioner has come to a conclusion that the
original trustees are not managing the trust properly. They are not
looking after Shree Bahuleshwar Devasthan. They are not holding
yatra and bhandara at proper times. They are not managing the
Devsthan building properly. The original trustees have clearly deposed
that they are unable to look-after diwabatti and repair the building.
Therefore, according to the counsel for the respondents, the appellants
themselves, in their statements under section 41D of the said Act have
stated that they are unable to look-after the diwabatti therefore the
Assistant Charity Commissioner has rightly framed the scheme under
section 50A of the said Act for proper management and in the interest
of the trust.
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13. The learned counsel further submits that the name of appellant
No.1 Kashinath Sane was not on PTR. Therefore, it was not necessary
to serve the notice on Kashinath. However, Kashinath was aware about
all the developments in the trust, he did participate in the enquiry
under section 41D of the said Act and therefore, the contention of the
appellants that no notice was served upon Kashinath Sane is devoid of
any merits and the said contention deserves to be rejected.
14. The counsel for the respondents invited my attention to the
copies of the additional documents which are placed on record by the
appellants themselves, in particular from page No.17 to 22 and
contended that all the lands which are shown in the PTR and even in
7/12 extract are shown in the name of Shree Bahuleshwar Devsthan
and the name of Prabhakar Krishnaji Sabnis is appearing only as a
caretaker of the said land. Merely because the name of Prabhakar
Sabnis appears in 7/12 extract, it would not lead to the conclusion that
he was appointed as a trustee by hereditary. Therefore, according to
the counsel for the respondents, the appeal does not raise any
substantial question of law for consideration. Therefore, the same
deserves to be dismissed.
15. It is submitted that this court in the matter of Baban s/o. Eknath
Kshirsagar Gurav & Ors. Vs. Sukhdeo Dagdu Nawale & Ors. 2004(4)
ALL MR 302 has taken a view that, if the trustees treating the trust
property as their private property and if there is mismanagement, in
such case, framing of a scheme is essential for efficient management of
the trust and it is not proper to continue hereditary mode of trust ship.
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The learned counsel further invited my attention to para 16 of the
judgment in the case of Subhash (supra) and submits that, once
endowment is made it never reverts to the donor and therefore, the
legal representatives of the donor cannot claim as their ancestors were
granted agricultural land by way of Inam so as to enable them to
manage the devasthan, they would continue to treat it as their personal
property, in spite of surrendering rights under the grant. Therefore,
relying upon the concurrent findings of facts recorded by the courts
below, the counsel for the respondent submits that the appeal may be
dismissed.
16. I have given careful consideration to the submission of the
counsel for the parties, with their able assistance perused the grounds
taken in the appeal memo, annexures thereto, additional paper book
filed by the counsel for the appellants, the provisions of the said Act
and also Rules thereunder and the judgments cited supra by the
counsel for the parties.
17. Coming to the first contention of the counsel for the appellants,
that the appellants are previous trustees and they were appointed
trustees by way of hereditary, cannot be accepted in view of the fact
that in PTR, the name of only Shri Girish Ramkrishna Bahulekar
appears as a hereditary trustee. There is no any other name as
hereditary trustee. Therefore, there is no substance in the contention
of the counsel for the appellants that they are appointed as hereditary
trustees. In fact, the counsel for the appellants fairly stated that,
though they were working as trustees and were appointed by mode of
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hereditary trustees, to that effect, no change was communicated and
entries were not taken in record by the office of the Assistant Charity
Commissioner. From the perusal of the findings recorded by the
Assistant Charity Commissioner and the District court, it appears that
the notices were issued to Girish Ramchandra Bahulekar. However, it
further appears that he did not participate in the enquiry. His brother
Shri Narayan Bahulekar, in his statement before the Assistant Charity
Commissioner during the enquiry under section 41D of the said Act,
has stated that his brother Girish had received the notice of enquiry,
however, since he was mentally disturbed, he did not remain present
during the enquiry. He further stated in his statement that there is no
income to the Trust. He has not visited the temple in last one and half
years. He is not aware who had cut the trees standing nearby the
temple. His brother Girish is mentally disturbed and therefore he could
not perform his duty as a trustee. He himself is interested to work as a
trustee. He has admitted in his statement that till date, he has not
rendered any services in the temple. The note of his statement has
been taken by the District Court in paragraph 12 of the impugned
judgment. There is also a statement of Shri Kashinath Trimbak Sane in
enquiry under section 41D of the said Act in which he has stated that, if
the income earned from the landed property of the temple is given to
him then he is ready to work as a trustee. He stated that he has not
maintained the accounts of the trust. It is not necessary for this court
to refer to their statements extensively since the District Court has
referred those statements in paragraph 12 of the impugned judgment.
The findings recorded by the District Court in paragraph 12 of the
impugned judgment appear to be in conformity with the contentions of
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the statements of the appellant No.1 Kashinath and the brother of
Girish Bahulekar.
18. The contention of the counsel for the appellants that, two
trustees out of five are in Government service and they are working at
Mumbai is concerned, the said ground was not taken before the first
appellate court and therefore, it is not possible for this court to accept
the said ground.
19. Under section 41D of the said Act, the Assistant Charity
Commissioner may, either on an application of a trustee or any person
interested in the trust, or on receipt of a report under section 41B or
suo motu may suspend, remove or dismiss any trustee of a public trust
on as many as five grounds. In the facts of the present case, there was
enquiry by the Assistant Charity Commissioner under section 41D of
the said Act and in the said enquiry, it is found that the trustee viz.
Girish Bahulekar who was appointed by hereditary mode neglected his
duties. The statements of appellant No.1 Kashinath and also the
brother of Girish Bahulekar have been rightly taken into consideration
by the Assistant Charity Commissioner and the District Court to hold
that they have neglected their duties and therefore, it is necessary to
frame a scheme for better management of Shree Bahuleshwar temple.
The contention of the counsel for the appellants that the original
applicants are not interested persons, have been considered by the
Assistant Charity Commissioner and also by the District Court and upon
considering the provisions of sub section (10) of section 2 of the said
Act, the court held that, they are interested persons and therefore,
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there is no reason for this court to hold that the original applicants, at
whose instance the enquiry was initiated, are not the persons having
interest in the trust. Bare perusal of sub section (10) of section 2 of the
said Act, would make it clear that, in the case of a temple, the persons
who are entitled to attend at or is in the habit of attending the
performance of worship or service in the temple, or who is entitled to
partake or is in that habit of partaking in the distribution of gifts
thereof, are the persons having interest in the trust. Both the
applicants are the persons having interest in the temple/trust therefore,
there is no substance in the submission of the counsel for the appellants
that they are not the persons having interest in the trust.
20. The counsel for the appellants submits that, the scheme framed
and settled by the Assistant Charity Commissioner is not in the interest
of the said trust is concerned, the findings recorded by the Assistant
Charity Commissioner and confirmed by the District Court,
unequivocally indicate that the statements of original trustees and the
respondent/applicant Bharat Atmaram Suryawanshi were recorded.
Thereafter, the villagers were appelaed to frame scheme for the better
management of the trust. Thereafter the villagers held meeting and
they prepared the Board of Trustees and farmed the scheme and
submitted to the Assistant Charity Commissioner. The Assistant Charity
Commissioner, after issuing notices to both the parties and after
extending an opportunity of being heard, passed the order and allowed
the application filed by the original applicants by framing a scheme for
efficient administration of the devasthan. At the cost of repetition, it
deserves to be observed that appellant No.1 Kashinath did participate
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in the enquiry under section 41D of the said Act and was also well
aware about the proceedings under section 50-A of the said Act and
therefore, the contention that, he did not receive the notice, deserves
no consideration. The name of appellant No.5 Prabhakar in the
property index of the trust property is only as a care-taker. Perusal of
the revenue record placed on record by the appellants by way of
additional documents from page Nos.17 to 22 would clearly show that,
the name of the property owner is shown as Shree Bahuleshwar
Devasthan.
21.
Taking over-all view of the matter, the present appeal does not
raise any substantial question of law for consideration. As already
observed in the judgment of the this court in the matter of Shivprasad
(supra) the present proceedings will have to be treated like second
appeal on the grounds available under section 100 of the CPC.
Therefore, in the light of the observations made hereinabove, this court
is of the view that the findings recorded by the courts below are not
perverse in any manner. The scheme framed and settled is in the
interest of the trust. The villagers of the said village are instrumental in
framing the said scheme and there appears to be reflection of interest
of public at large of the said village in framing and settling the said
scheme for better management of the devasthan. In that view of the
matter the first appeal is devoid of merits. Hence, the same stands
dismissed. Resultantly, the civil application stands rejected.
(S.S. SHINDE, J.)
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