Shree Tukai Devi Trust And Others vs Shri Nivrutti Pandurang Mujumle ...
2014 Latest Caselaw 157 Bom

Sherla V.



                                                                              fa.1326.2014(j).doc


                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CIVIL APPELLATE JURISDICTION




                                                                                       
                               FIRST APPEAL NO.1326 OF 2014
                                            a/w
                             CIVIL APPLICATION NO.3861 OF 2014




                                                               
            Shree Tukai Devi Trust & Ors.                 ... Appellants

                  Vs.




                                                              
            Shri Nivrutti P. Mujumle & Ors.               ... Respondents




                                                 
            Mr.N.V. Walawalkar, Sr.Advocate, i/b N.V. Gangal for the Appellants
                                     
            Ms.Kiran Bhagalia i/b Krishna Kelkar for Respondents
                                    
                                              CORAM: MRS.MRIDULA BHATKAR, J.

                                     RESERVED ON: NOVEMBER 21, 2014
                   

                                 PRONOUNCED ON: DECEMBER 20, 2014
                



            ORDER:

1. Admit. Respondents waive notice. By consent, the appeal is heard

and decided finally at the admission stage.

2. Though it is a First Appeal, under Bombay Public Trusts Act, it is to

be considered in the form of Second Appeal. In this Appeal, substantial

questions of law is formulated as follows:

i) Whether the decision of the Court violates the Doctrine of

Proportionality?

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Though only one substantial question of law is framed, the learned

Senior Counsel for the appellants argued and suggested more substantial

questions of law which were not accepted but only one is framed as a

substantial question of law. Before dealing with the said question of law,

his submissions are taken into account.

3. Appellant No.1 is a Trust in the name of goddess 'Tukai'. The Trust

owns immovable property i.e., a temple and land admeasuring 2 to 3

acres. The families of the appellants are appointed as Trustees and they

are also 'Pujaris' known as 'Gurav'. Since nearly 100 years they are

offering services to goddess. Though they are not from one unit of the

family, they are the branches of one original family. The respondents are

the members of the Gram Panchayat of Village Kondhanpur, where the

temple and the Trust situate. The respondents are also the members of

different units of one original family. The respondents have filed

application under section 41D of the Mumbai Public Trust Act praying that

there is non-performance of functions as trustee and breach of the

scheme and object of trust is frustrated due to misfeasance and

malfeasance, on the part of trustees. So, they are to be removed from the

Trusteeship. The application filed by the Respondents was allowed and

the application made by the appellants was rejected by the Deputy Charity

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Commissioner on 31.10.1977. Thereafter, an application was moved

before the District Court who upheld the order of the Deputy Charity

Commissioner. Hence, the appellants are before this Court, in this appeal.

4. Mr.Walawalkar, the learned Senior Counsel appearing for the

appellants, made elaborate submissions on the point of substantial

questions of law as follows:

"i) Whether the appreciation of evidence by both the Courts

below is totally perverse, incorrect and erroneous by reason of reliance placed by the Courts below on the stray sentences of

alleged admissions by reading them in isolation with the other evidence and especially by ignoring the Explanations given by the appellants and Respondents' own suggestions given to the

witnesses of the appellants which destroyed the effect of those admissions relied on by the lower courts against the appellants?

ii) Whether the charges as framed were sufficient in law to give

sufficient and proper opportunity in law to the appellants to meet those charges?

iii) Whether the charges were vague and were not sufficient as required by law to give opportunity to the appellants to meet them and whether that has resulted in miscarriage of justice to the

appellants, in as much as the same, if found true, would result into serious consequences for them resulting in a blot on them?

iv) Whether the evidence led by the respondents was sufficient in law to meet the requirement of high standard of proof as required by law in a case of disqualification of a trustee under section 41-D of

the Maharashtra Public Trust Act, 1950?

v) Whether the judgments of the lower courts are sustainable in law when they have not addressed themselves to the issue of proportionality of punishment of removal of appellants to be inflicted on them with reference to the vague charges leveled against them?"

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5. He submitted that this is a quasi criminal trial. Hence, the charges

ought to have been precise and the degree of proof should be higher than

the general preponderance of probabilities like civil trial. He submitted

that though the issue of misfeasance and malfeasance is framed in charge

No.2 and was also in point No.2 of the appellant Court, the charges are

vague. So, question No.1 is that (i) whether the charges 2, 3 and 4 of the

trial Court and the corresponding points of determination formulated by the

appellate Court at 2, 3 and 4 are general and vague. He submitted that

(ii) both the judgments of the appellate Court and the trial Court suffer from

perverse appreciation of evidence. He pointed out 2 - 3 instances of the

perverse appreciation:

a) The land was sold by one Jagannath, father of one Ganesh

i.e., the present trustee in 1960 and not by him. However, that is

counted against the present trustee i.e., the appellant.

b) The bank account was opened and accounts of every year

audited, though submitted, not properly considered. So also, the

admission given in the cross-examination that of big amounts and

gifts are deposited in the trust and admission is given about the fact

that petty amounts and petty gifts are collected by these people. It

is assessed out of context.

c) The Court committed an error in considering that the

appellants are beneficiaries. Thus, the Court failed to appreciate

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that there are no charges of misappropriation of funds collected for

deity and no remuneration was paid to the appellants for their

services as Pujari.

6. The learned Counsel submitted that failure to organise the

celebrations, cannot be considered as breach and violative of the

functions of the scheme of the Trust. The punishment of removal from

trusteeship given under section 41D is too harsh and against the principle

of proportionality. On the point of proportionality, he referred to the

judgment of this Court in the case of Santoshkumar s/o. Nandkishor

Pande & Ors. vs. Vinaykumar s/o. Sattyanarayan Mishra & anr.1

7. Ms.Bagalia, learned Counsel for the Respondents, submitted that

section 41D of the Bombay Public Trusts Act empowers the Charity

Commissioner to conduct enquiry about the working of the Trust. The land

admeasuring 1 hectare 45 ares is granted as class III Inam land to deity

and not to the trustees. She submitted that this Court has no scope of

reappreciation in the second appeal and it is not permissible. In support of

her submissions, she relied on the judgment of the learned Single Judge

(Coram: S.S. Parkar, J.) in the case of Eruch Merwan Irani & anr. vs.

Sardar Sorabji Ruttonji Patel & Ors.2 Both the Courts i.e., the Charity

Commissioner and the District Court have given concurrent findings 1 2013 2 ALL MR 784 2 2001 (2) Mh.L.J. 654

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against the appellant while entertaining the matter under section 41D of

the Bombay Public Trusts Act. She submitted that a valid scheme was

framed by the Charity Commissioner in 1988 of this Trust. Since then, the

appellants are working as trustees and Pujaris. However, they have

mismanaged the affairs and they are responsible for the mismanagement

and also they have used the property for their own interest and not in the

interest of the trust. She relied on the evidence of the appellant Gajanan

and Rajendra, especially the cross-examination and the admissions given

by them. She submitted that on the basis of the admissions given by the

witnesses of the appellants, the trial Courts have rightly considered the

evidence as sufficient to arrive at a conclusion in support of her

submissions, which is the best evidence". She relied on the Division

Bench judgment of this Court in the case of Deputy Collector (Rev.) and

Land Acquisition Office, Panaji-Goa, & anr. vs. Rajendra Vassudev

Deshprabhu (dead) through L.Rs. Dr.Vassudev R. Deshprabhu &

Ors.3. She further relied on the judgments of both the subordinate Courts

and submitted that the appellants have failed to point out the substantial

questions of law.

8. It is a settled position of law that reappreciation of evidence is not

permissible in Second Appeal by the High Court and the ratio is laid down

by the Division Bench of the Bombay High Court in the case of

3 2009 (3) Mh.L.J. 530

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Shivprasad Shankarlal Pardeshi, since deceased by his heirs vs.

Leelabai Badrinarayan Kalwar since deceased by her heirs & ors. 4

Only if there is a perverse finding while appreciating the evidence or

misreading of evidence, then that can be framed as a substantial question

of law. It is held that the Court has to consider that if at all the Charity

Commissioner or the District Court had really given distorted version by

misreading the evidence on record and it is perverse, then only the Court

would interfere with the order of the Charity Commissioner and the District

Court. In the present case, after considering the substantial questions of

law which are placed on record, in my view, the same can be summed up

as follows:

ii) Whether the subordinate Courts have committed an error in

framing vague and general charges?

iii) Whether there is a perverse appreciation of evidence by the

Courts below?

iv) Whether the decision of the Court violates the Doctrine of

Proportionality?

Out of the above, as mentioned earlier, only question No.(iii) is framed as

a substantial question of law.

4 1998 (2) Bom. C.R. 744

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9. The submissions of the learned Counsel that this is a quasi criminal

trial under section 41D, though accepted, the procedure applicable to the

said trial is of the Civil Procedure Code and therefore the charges framed

against the appellants, are not required to be framed like under section

211 of the Code of Criminal Procedure. The charges are to be framed on

the basis of the contentions raised and averments made in the pleadings.

The pleadings are descriptive with more details and charge is a gist of it.

In the present case, appellants are facing the charges of negligence while

performing their functions as trustees and so also there are charges of

misfeasance and malfeasance. Misfeasance is a lawful act done

wrongfully and malfeasance is doing a wrongful act and this is related to

their functions as trustees. The evidence is more detailed and elaborative

than the pleadings. On perusal of evidence, a question raised whether the

Court has really misread the evidence out of context by picking up few

admissions or there is no sufficient evidence to prove the charges is

answered in negative. The Courts below have not committed error of

framing vague charges or no illegality in appreciating evidence is found.

10. As regards the reliance placed by the learned Counsel for the

appellants on the judgment in the case Santoshkumar s/o. Nandkishor

Pande & Ors. (supra) on the point of proportionality, it is true that neither

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the Charity Commissioner nor the District Court has framed a separate

issue or point on the proportionality of punishment. Removal of trustees is

a harsh action, however, it is not that such penalty cannot be imposed

which is provided under section 41D. It appears from the orders of both

the Courts below that the issue of proportionality was not raised before the

Courts. It is accepted that there was no occasion to raise such issue

before the first forum. However, the issue was not raised before the

appellate Court though all the trustees were removed from the post of

trusteeship. If the point was not raised before the Court or if it is not

discussed at length, then, it can be raised in second appeal, as to whether

the punishment granted was proportionate to the acts done or committed

and is it necessary to remand the matter to the District Court to decide this

issue.

10. It is not the case that such penalty is not prescribed in the statute

and it is awarded. The proportionate penalty is a matter of fact. After

going through the entire evidence especially the cross-examination of

Gajanan and Rajendra, it appears that both the Courts have properly

appreciated the evidence not only with regard to negligence in duty but of

malfeasance and misfeasance. The Courts have dealt with instances of

wrongful acts and omissions in performing their lawful acts one after the

other and rightly held that the appellants have been using the property not

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in the interest of the trust but for their own interest. The submission of the

learned Counsel for the appellants that the Court has failed to appreciate

the inconsistent stands in respect of getting rent out 10 rooms is not

acceptable because a witness who enters the box later, always tries to

cover up the admissions sought in the cross-examination of the earlier

witness. The Courts are correct in holding that the constructed ten rooms

should have been used for the source of income of the deity. Though the

account number and the name of the bank are given, it was the duty of the

appellants to show how much amount was deposited from time to time.

Admittedly, no registers were maintained. There is no account of daily

collections and how much money was taken by the Pujaris; the scheme of

the trust is also considered by the Courts below. I do not find that there is

any perverse appreciation of evidence by the Court below that they have

considered admissions or statements of the witnesses out of context. The

charges are not vague and are fully proved.

11. High standard of proof is required in a quasi civil, criminal enquiry

under section 41D of the Mumbai Port Trust Act and therefore, the Court

cannot infer and conclude on the basis of preponderance of probabilities

but specific instances of the breach of the scheme or misfeasance or mal-

feasance are to be brought on record. However, once evidence is

tendered by the party demanding action under section 41D, then, unlike

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criminal trial, the onus of proof is not constantly on the applicants

throughout but the onus shifts at that point on the trustees. The trustees

thereafter are required to show their bonafides and they must bring

evidence which is within their knowledge and which is in their custody.

Benefit of right of silence which is given to the accused throughout the

criminal trial cannot be enjoyed by the trustees in the enquiry under

section 41D once sufficient evidence is produced by the other party. A

creation of trust and trustees is founded on very high values which are

accepted by the society and trustees and, therefore, trustees are expected

to rise up to the expectations and the trust of people. The trustees are

supposed to offer selfless services which is consistent to the object and

scheme of the trust and deviation in any manner definitely cracks the

fundamental object of the creation of the trust. When there is a creation of

the trust in the name of deity, then, the responsibility of the trustees is very

high as everyday devotees offer money, valuable articles and other things

to the deity out of their faith. The trustees are supposed to take care of the

deity and they are accountable to the faith and belief that people have in

the deity. Where everyday cash and valuables are collected and there is

no fixed amount of such everyday offerings and as it varies everyday

depending on the number of devotees, the persons working as trustees

are definitely entirely accountable for maintaining list and accounts of it in

the name of the deity. Unless the accounts are produced, definitely this

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money is taken away for the personal interest of the trustees or pujaris. In

the present case, the appellants are in dual roles i.e., the trustees and also

pujari. It was necessary on the part of these trustees to fix a monthly

remuneration of pujaris and keep accounts of the daily collections and the

expenses incurred for the management of deity, devotees and

administration of the property. Such defaults cannot be viewed with let-go

attitude but it demands selfless observance of the duty.

12 In the case of Santoshkumar s/o. Nandkishor Pande & Ors.

(supra), a learned Single Judge of this Court at Nagpur has held in

paragraph 6 thus:

"The punishment of either suspension, removal or dismissal as the

case may be, has to be proportionate to the gravity of the charge/charges held to be proved. It is not the every lapse or every

act of misconduct which invites the punishment of dismissal. The Charity Commissioner is therefore bound to record reasons for imposing a particular punishment."

In the above case, the Joint Charity Commissioner has framed 7

charges against the appellants and out of which only charge nos.1, 2 and

5 were proved and other charges of misappropriation of trust funds and

also the charge of malfeasance and misfeasance and the charge of

violation of the provisions of rules and regulations of the trust and breach

of trust were not established. However, the Joint Charity Commissioner

imposed the punishment of removal of the appellants as trustees. Int eh

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said case also, the trust was formed in the name of the deity. In the

present case, though the charge of misappropriation is not framed, all the

charges including the charge of malfeasance and misfeasance are proved.

The learned trial Judge has given finding in respect of these charges and

hence, the case is distinguishable.

13. The doctrine of proportionality desires objectivity in the decision

taking process of the penalty because it necessarily involves subjective

approach of that particular Judge. The nature of penalty depends upon a

mindset of a Judge wherein a number of factors are involved like his own

experience, his idea of morality, his pragmatic approach, etc. Therefore,

the appellate Court needs to examine reasoning of the trial Court to find

out whether the Judge has imposed penalty by considering the

proportionality objectively or not. The penalty imposed should not be

based completely on a subjective approach but it should reflect his

thinking process and the considerations to justify the penalty imposed.

14. Thus, the appellate Court needs to find out whether reasons are

given by the trial Court while imposing the punishment especially harsh

punishment like removal or dismissal of trustees under section 41D. As

per the judgment of the learned Single Judge, reasons are bound to be

given by the trial Court. However, a separate opportunity is not to be

given to the party to make submissions and the reasons need not be given

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in the last paragraph like quantum of punishment in criminal trial. If the

appellate Court after going through the judgment, finds that the reasons

for giving harsh punishment are satisfactory, based on proper marshalling

of evidence and it is proportionate then, the issue of proportionality, is

answered in affirmative.

15. The doctrine of proportionality is a principle in law, which gives

direction to a thought of a Judge while imposing penalty. It is based on the

idea of justice and objectivity. The penalty imposed on a person should be

commensurate with the wrong done by him. Therefore, it is always a

matter of fact depending on each case and the evidence tendered by the

parties. When statute prescribes certain punishment and if charges are

framed accordingly, then, the Court after weighing the wrong done by a

person, can impose a penalty, even though it is harsh, but is just. In the

present case, I am satisfied that the penalty of removal of the trustees is

necessary and proper.

16. Hence, the Appeal is dismissed. Civil application also stands

disposed of.

(MRS.MRIDULA BHATKAR, J.)

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