Bombay High Court
People'S Education Society vs Shri Mansing S. Moray on 10 August, 2015
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1249 OF 2012
1] People's Education Society
Registered under the Societies Act,
1860 and as a Trust under the
Provisions of Bombay Public Trust
Act, 1950 having its registered Office
at 348, Anand Bhavan, Dr. D.N.Road,
Fort, Mumbai -400 023, through its
Deputy Chairman V.M.Pradhan.
2] Dr. Digambar Jawaji Gangurde,
Residing Off HIG-D-R-7, Opp. Birla
College, Ground Floor, Murbad Road,
Kalyan (W), Thane,
3] Dr. Gangadhar Patanwane,
Residing of Sharavasti Chavni,
Opp. Milind Collage, University
Road, Aurangabad.
4] Prof. S.L.Bhagat, Trustee
People's Education Society, 71/3
Ambika, Pandurang Wadi,
Goregaon (E), Mumbai.
5] Mr. Vinayak M. Pradhan
(Transposed as Respondent No.8).
6] Dr. M.P. Mangudkar, Trustee
People's Education Society, 1990
Madhivale Colony, Chitra Bungalow,
Sadashiv Peth, Pune.
7] Dr. R.A. Wavare, Trustee,
People's Education Society
208, Nandanvan Colony, Aurangabad,
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8] Dr. Laxman B. Waghmare,
Occupation : Trustee,
People's Education Society,
Residing of Lucky Mansion,
46, Nandanvan Colony,
Aurangabad.
9] Mr. Ashok Talwatkar,
Occupation : Trustee,
People's Education Society,
348, Anand Bhavan, Dr. D.N.
Road, Fort, Mumbai - 400 001 ... Appellants
Versus
1] Shri Mansing S. Moray
Residing of D-106, Silver
Presidency Charkop, Sector-2,
Kandivali(W), Mumbai -400 067
And also at : B-103, Silver
Presidency, Charkop Sector-2,
Kandivali (W), Mumbai-400 067.
2] Dr. S.P.Gaikwad,
Sumedh, Jeevak Nagar, Regional
Workshop Road, Nanded-431 605
Maharashtra State.
3] Mr. Sudhas Jadhav,
Ashray, 13/12, 19th Road, KEM
Colony, Khar (W), Mumbai-400052
4] Dr. D.G.Deshkar,
Trustee, People's Education Society
G-401, Sylvan Heights, Near
Sanewadi, Near Seasons Hotel,
Aundh, Pune.
And Also at A-201, MIRA BEL
Apartment, Near Pan Card club,
Baner, Pune-411 045.
5] Shri S. Mariswamy,
Occupation : Trustee,
People's Education Society,
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Residing of No. 71, Swiss Town,
Sadaali, Post : Devan Halli,
Taluka-Bangalore, Rural Distt.
Pin 562 110,
6] The Deputy Charity Commissioner,
Having its Office at Worli, Mumbai,
7] The Joint Charity Commissioner,
Having its Office at Worli, Mumbai.
8] Mr. Vinayak M. Pradhan,
R/o. Pradhan Building, Edulji Road,
Tembi Naka, Thane (E),
Distt. Thane ... Respondents
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Shri P.K.Dhakepalkar, Senior Advocate, assisted by Shri
B.K.Barve, Shri S.K.Halwasia, Shri Sandip Barve, Ms
Archana Lad and Shital Tanpure, I/b B.K.Barve and
Company, for Appellants.
Shri Amit Borkar, Advocate, for Respondent No.1.
Shri S.C.Daswadikar, Advocate, for Respondent No.2
Shri Prakash Ambedkar, Advcoate with Shri Satish Mande,
Advocate, for Respondent No.3.
Shri Sangharaj Rupvate, Advocate, for Respondent No.5.
Shri S.D.Rupwate, Advocate with Shri Milind Ingole and Shri
Manoj Jadhav, Advocates, for Respondent No.8
None for Respondent Nos. 4, 6 & 7
-------------------------------------------------------------------------------------------
CORAM : R.K. DESHPANDE, J.
RESERVED FOR JUDGMENT ON : 31.07.2015
JUDGMENT PRONOUNCED ON : 10.08.2015
1] This Appeal is concerned with the rejection of Change
Report No.888 of 2003, filed on 26th February, 2003, to induct
four persons as the members of Governing Body of the People's
Education Society by the Deputy Charity Commissioner, Greater
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Bombay, Mumbai Region on 25th October, 2010. In Appeal No.30
of 2010 under Section 70 of the Bombay Public Trusts Act, 1950
(in short "the said Act'), the learned Joint Charity Commissioner
has confirmed the said order and dismissed the Appeal. The
appellants moved an application before the City Civil Court at
Greater Mumbai, being Charity Application No. 4 of 2012, under
Section 72 of the said Act, which has also been dismissed on 3 rd
July, 2005. Hence this First Appeal which is in the nature of
Second Appeal under Section 100 of the Code of Civil Procedure.
2] Before the lower Authorities, two questions were
involved : (1) the validity of Resolution No.6 passed at Item No.8
in the meeting of the Governing Body of the Society, held on 20 th
December, 2002; and (2) the eligibility of newly inducted two
members of the Governing Body of the Society in the said
meeting. The learned Deputy Charity Commissioner held on the
first aspect that the meeting held was valid, and on the second
aspect, it is held that the eligibility of these two persons to
become members, has not been established in terms of Article
Nos.7 and 20 of the Memorandum of Association, for the reason
that it is not proved that they are from the category of Scheduled
Caste converts to Buddhism.
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3] In the Appeal filed by the reporting trustees under
Section 70 of the said Act, the affidavits dated 11th November,
2010 filed by Dr. Gangadhar Pantawane and Principal
D.J.Ganjurde were placed on record along with certain documents
by way of an additional evidence, to establish that they belong to
the category of Scheduled Castes converted to Buddhism and it
was prayed to remand the matter back to the Deputy Charity
Commissioner for making such inquiries.
ig The learned Joint
Charity Commissioner rejected this move and also reversed the
finding recorded by the Deputy Charity Commissioner that the
meeting of the Governing Body held on 20 th December, 2003, was
legal and proper. It is held that the meeting was illegal and
consequently, the induction of four members was also illegal. In
the Charity Application No. 4 of 2012 filed under Section 72, the
learned Judge of the Bombay City Civil Court has maintained
these findings of the learned Joint Charity Commissioner.
4] This appeal is preferred by the Reporting trustees.
This Court admitted the matter on 10th September, 2012, framing
the substantial question of law as under:
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"a) Whether in an inquiry to determine the validity of a
Change report under Section 22 of the Bombay
Public Trusts Act, 1950, the Assistant/Deputy Charity
Commissioner is obliged to find out the facts and
ascertain the truth or is the enquiry akin to a lis
between the parties?
b) Whether Section 70(3) of the Bombay Public Trusts
Act, 1950 which permits the Joint Charity
Commissioner to take additional evidence on record
is circumscribed by the provisions of Order 41 Rule
27 or whether the specific statutory provisions will
prevail?
c) Whether in an enquiry to determine the validity of a
Change report under Section 22 of the Bombay
Public Trusts Act, 1950, the Assistant/Deputy Charity
Commissioner is empowered to look into the
suitability of the appointed members?
d) Whether it is legal and permissible under the
provisions of Section 70(3) of the Bombay Public
Trusts Act, 1950 to accept additional evidence at the
appellate stage and/or he may direct the Deputy or
Asstt. Charity Commissioner, Mumbai, to make
further enquiry or take such additional evidence by
remanding back the matter for fresh hearing?"
5] The matter was heard at length on 30th and 31st June,
2015 and it was part heard. On 27 th July, 2015, this Court framed
the following additional substantial question of law:
ADDITIONAL SUBSTANTIAL QUESTION OF LAW:
"Whether the objections regarding the legality and
validity of the notice of meting dated 12th December,
2002 at Exhibit - 60, the proceedings in the form of
intimation letter at Exhibit - 61 and the minutes of
the meeting dated 20th December, 2002 at Exhibit -
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103, could have been entertained and decided by the
Court and the authorities below at the instance of a
stranger Shri Sudhash Jadhav?"
The substantial question of law at (b) and (c) in the
aforesaid paragraph can be clubbed together for the purposes of
decision. The matter was actually heard on additional substantial
question of law also, but, it was not framed and hence the parties
were given opportunity to again address this Court on the
additional substantial question of law. The matter was, therefore,
kept on 31st July, 2015. Accordingly the matter is heard again at
length and parties also filed their written submissions..
UNDISPUTED FACTUAL POSITION :
6] The People's Education Society was founded by
Bharat Ratna Dr. Bhimrao Ramji Ambedkar (Babasaheb) on
8th July, 1945, and it was registered under the Societies
Registration Act, 1860 on 9th July, 1945. It is also registered
under the Bombay Public Trust Act bearing PTR No. F - 303(M).
The Society is governed by the Memorandum of Association and
the Rules which are framed. The entries in the Schedule-I of PTR
indicated the names of following trustees entered as on
14th February, 1995:
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(i) Dr. S. P. Gaikwad;
(ii) Shri S.S. Rege;
(iii) Dr. J. V. Deshpande;
(iv) Shri K. V. Talvatkar;
(v) Dr. P. T. Borale;
(vi) Shri M. V. Rao;
(vii) Shri M. D. Tambe;
(viii) Shri M. S. Moray;
(ix) Prof. S. K. Mohgaonkar;
(x) Shri K. H. Rangnath;
(xi) Dr. M. L. Sahare.
7] Shri M.V. Tambe expired on 6 th July, 2000, Shri K. B.
Talvatkar expired on 15th May, 2002 and Dr. P. T. Borale expired
on 5th October, 2002. As such, three vacancies occurred. It was
shown that one more vacancy of Prof. A. M. Donde occurred, as
he expired on 9th July, 2001. His name does not figure in the
Governing Body of eleven members existed on 14th February,
1995. But, there is no dispute that the vacancy occurred and it
was required to be filled in. It is not necessary for me to dig out
the process as to whether he was the member of the Governing
Body and how the vacancy occurred, as none of the parties have
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disputed that such vacancy occurred and existed.
8] One Principal D. J. Gangurde, claiming himself to be
a Member Secretary of the society issued a notice on
12th December, 2002, calling a meeting of the Governing Body on
20th December, 2002. The meeting was held at 11.00 a.m. and it
was presided over by Shri K.H. Rangnath, as the Chairman and
Shri S. S. Rege, as the Deputy Chairman. Principal D. J.
Gangurde, who claimed to be the Member Secretary was also
present. The following persons have marked their attendance in
the meeting:
(i) Shri K. H. Rangnath, Chairman;
(ii) Shri S. S. Rege, Deputy Chairman;
(iii) Dr. S. P. Gaikwad, Member;
(iv) Shri M. S. Moray, Member;
(v) Prof. S. K. Mohgaonkar, Member;
(vi) Padmshri M. L. Sahare, Member;
(vii) Principal Shri S. L. Khot, Member.
9] In this meeting, at Item No.8 Resolution No.6 was
passed, which is reproduced below:
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"Re: To elect Members of the Governing
Body of the Society in place of Sarvashri
M. B. Tambe, A. M. Donde, K. B.
Talwatkar and Dr. P. T. Borale
Padmashri Dr. M. L. Sahare proposed the following
4 names for the 4 vacant posts of the Members of
the Governing Body which were seconded by Prin.
S. L. Khot and supported by Prin. S. K.
Mohagaonkar, Shri M. S. Moray, Dr. S. P. Gaikwad
and Shri S. S. Rege.
1. Justice Shri Narendra Chapalgaonkar
2.
3.
Dr. Gangadhar Pantawane
Shri Bhalchandra Varale
4. Prin. D. J. Gangurde
Since there were no candidates for the above
vacant posts it was unanimously resolved;
i) that Justice Shri Narendra Chapalgaonkar has
been elected as a Member of the Governing
Body of the PES in place of Prof. A. M. Donde.
ii) that Dr. Gangadhar Pantawane has been
elected as a Member of the Governing Body of
the PES in place of Shri K. B. Talwatkar.
iii) that Shri Bhalchandra Varale has been elected
as a Member of the Governing Body of the
PES in place of Shri M. B. Tambe.
iv) that Prin. D. J. Gangurde has been elected as
the Member-Secretary of the Governing Body
of the PES in place of Dr. P. T. Borale."
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10] On 29th / 30th January, 2003, a meeting of the
Governing Body was held in which the following members were
present:
1. Shri K. H. Rangnath, Chairman;
2. Prof. S. M. Khot;
3. Shri B. B. Varale;
4. Dr. Gangadhar Pantawne;
5. Principal D. J. Gangurde, Member-Secretary.
The following members of the Governing Body
informed their inability to attend the meeting:
1. Shri S. S. Rege, Deputy Chairman;
2. Dr. S. P. Gaikwad;
3. Shri N. S. Moray;
4. Principal S. K. Mohgaonkar;
5. Padmashri Dr. M. L. Sahare.
At Item No.1, Resolution No.1 was passed confirming
the minutes of the last meeting of the Governing Body held on
20th December, 2002, in which four persons were newly inducted
as members. It is at Exhibit - 104 (record page 883).
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11] On 26th February, 2003, the Change Report No. 888 of
2003 was filed by Shri S. S. Rege on the basis of the minutes of
the meeting dated 20th December, 2002, for deletion of the names
of four deceased members and to add four new members who
were inducted. There is no dispute on the aspect of deletion of
four deceased members, but the dispute pertained to induction of
four members namely:- Shri Justice Narendra Chapalgaonkar
(Retd.), Dr. Gangadhar Pantawane, Shri Bhalchandra B. Varale
and Shri D. J. Gangurde.
12] Before filing of the Change Report, Shri Justice
Narendra Chapalgaonkar (Retd.) resigned from membership on
23rd January, 2003. During the pendency of the Change Report
Shri Bhalchandra B. Varale died on 10th September, 2006. Hence,
the dispute remained only in respect of induction of two members
namely:- (1) Dr. Gangadhar Pantawane and (2) Principal D. J.
Gangurde. On 14th /15th May, 2003, a meeting of the Governing
Body was held and it was attended by seven members amongst
which, Shri M. S. Moray was one. Dr. S. P. Gaikwad informed his
inability to attend the meeting. The meeting confirmed at Item
No.2, the minutes of the meeting dated 29th /30th January, 2003.
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13] On 22nd July, 2005, the learned Assistant Charity
Commissioner allowed the Change Report No. 888 of 2003, and
the direction was given to delete the names of the deceased
members and to include the names of four newly inducted
trustees in Schedule - I of the Public Trust Register. Accordingly,
the entry was carried out.
14] The event which occurred after the decision of the
said Change Report was that of the holding of the meeting of the
Governing Body of the society on 21 st May, 2007 at 11.00 a.m. at
Nagasena Vidhyalaya, Bangalore, wherein the following trustees
were present:
(i) Shri K. H. Rangnath, Chairman;
(ii) Dr. S. P. Gaikwad, Member;
(iii) Shri M. S. Moray, Member;
(iv) Dr. Gangadhar Pantawane, Member;
(v) Principal Dr. D. J. Gangurde, Principal Secretary.
In the said meeting, Resolution No.2 at Exhibit - 111
(record page 1043) was passed at Item No.2, which is also
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reproduced below:
"Re: To elect Members of the Governing Body of the
People's Education Society in place of 1) Prof. S. K.
Mohagaonkar, 2) Justice Shri Narendra
Chapalgaonkar, 3) Prof. S. L. Khot, 4) Shri S. S. Rege,
5) Shri B. B. Varale and 6) Dr. M. L. Shahare.
Shri M.S. Moray proposed the following two names
for the vacant posts of the Members of the
Governing Body which were seconded by Prin. Dr. D.
J. Gangurde and supported by Shri K. H. Ranganath,
Dr. S. P. Gaikwad and Dr. Gangadhar Pantawane.
1.
2.
Prof. S. L. Bhagawat.
Principal Dr. R. A. Wavare.
Dr. Gangadhar Pantawane proposed the following
three names for the vacant posts of the Members of
the Governing Body which were seconded by Shri M.
S. Moray and supported by Shri K. H. Ranganath, Dr.
S. P. Gaikwad and Dr. D. J. Gangurde.
1. Dr. M. P. Mangudkar.
2. Shri Vinayak K. Pradhan.
3. Dr. S. N. Bushi.
Dr. S. P. Gaikwad proposed the name of Dr. D. G.
Deshkar for the vacant post of the Member of the
Governing Body which was second by Dr. Gangadhar
Pantawane and supported by Shri K. H. Ranganath,
Shri M. S. Moray and Dr. D. J. Gangurde.
Since there were no other candidates for the above
six vacant posts all the above six candidates were
declared elected unanimously and it was therefore
resolved.
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1. that Dr. D. G. Deshkar has been declared
elected unanimously as a Member of the
Governing Body of the People's Education
Society, Mumbai in place of Justice Shri
Narendra Chapalgaonkar who resigned on
24/01/2003.
2. that Prof. S. L. Bhagwat has been declared
elected unanimously as a Member of the
Governing Body of the People's Education
Society, Mumbai in place of Prof. S. K.
Mohagaonkar who resigned on 06/02/2003.
3. that Dr. Vinayak K. Pradhan has been declared
elected unanimously as a Member of the
Governing Body of the People's Education
Society, Mumbai in place of Shri S. S. Rege,
who expired on 10/12/2004.
4. that Dr. M. P. Mangudkar has been declared
elected unanimously as a Member of the
Governing Body of the People's Education
Society, Mumbai in place of Prof. S. L. Khot,
who expired on 02/08/2005.
5. that Dr. R. A. Wavare has been declared
elected unanimously as a Member of the
Governing Body of the People's Education
Society, Mumbai in place of Shri B. B. Varale,
who expired on 10/09/2006.
6. that Dr. S. N. Bushi has been declared elected
unanimously as a Member of the Governing
Body of the People's Education Society, Mumbai
in place of Dr. M. L. Shahare, who expired on
05/04/2007."
15] After lapse of the period of about three years, the
order dated 22nd July, 2005, accepting the Change Report No. 888
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of 2003, was made the subject matter of challenge in Revision
Application No.6 of 2008 filed under Section 70A by one Shri
Subhash Sambhaji Jadhav, resident of Aurangabad, before the
Joint Charity Commissioner. In the said application Shri K. H.
Rangnath, Shri D. J. Gangurde, Shri S. P. Gaikwad, Dr. Gangadhar
Pantawane, Shri M. S. Moray, Dr. D. G. Deshkar, Prof. S. L.
Bhagwat, Shri Vinayak K. Pradhan, Dr. M. P. Mangarudkaar, Dr.
R. A. Wavare and Dr. S. N. Bushi, were the respondent Nos. 1 to
10, respectively. On 14th January, 2009, the learned Joint Charity
Commissioner set aside the order dated 22 nd July, 2005, passed by
the Assistant Charity Commissioner. It was noted in the order
that the Revision Petitioner had filed one objection on 7 th January,
2003, before the Assistant Charity Commissioner claiming
audience. It was found that the question of membership was
required to be considered as per the Memorandum of Association
and the Rules and Regulations of the society and this aspect was
not addressed to by the learned Assistant Charity Commissioner
in the order impugned and therefore the matter was remanded
back for fresh inquiry under Section 22 of the said Act.
16] This order dated 14th January, 2009 passed by the
learned Joint Charity Commissioner was further challenged by
filing Charity Application No.4 of 2009 under Section 72 before
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the City Civil Court of Greater Bombay by Dr. D. J. Gangurde, as
the sole appellant. The respondent Nos. 1 to 11 in this
application were Shri Subhash Sambhaji Jadhav, Shri K.H.
Rangnath, Dr. S, P. Gaikwad, Dr. Gangadhar Pantavane, Shri M. S.
Moray, Dr. D. G. Deshkar, Shri S. L. Bhagwat, Shri Vinayak M.
Pradhan, Dr. M. T. Mangarudkar, Dr. R. A. Wavare and Shri S. N.
Bushi, apart from the Charity Commissioner as respondent no.12.
The said application was dismissed on 24th November, 2009.
17]
The aforesaid decision was the subject matter of First
Appeal No.39 of 2010, filed before this Court in which Dr.
Digambar Jawaji Gangurde, Mr. K. H. Rangnath, Dr. Gangadhar
Pantawane, Shri M. S. Moray, Dr. D. G. Deshkar, Prof. S. L.
Bhagwat, Shri Vinayak M. Pradhan, Dr. M. P. Mangrudkar, Dr. R.
A. Wavare were the appellants, whereas Shri Subhash Sambhaji
Jadhav, Dr. S. N. Bushi, the Charity Commissioner and Mr. S. P.
Gaikwad were the party respondents. The said Appeal was
disposed of by recording Consent Terms by this Court on 4 th
February, 2010, as under:-
"CONSENT TERMS
The impugned Order dated 24.11.2009 passed by City
Civil Court, Mumbai in Charity Application No.4 of
2009 would take effect with the following
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modifications.
1. The Deputy Charity Commissioner shall dispose
off the Change Report No.888 of 2003.
2. The Surviving Trustees shown in Change Report
No.888 of 2003 are permitted to prosecute the
pending Change Report before the Deputy
Charity Commissioner by filing oral and
documentary evidence if any.
3. The Trustees in office as on today managing the
affairs of the trust shall to function.
4. The Respondent No.1 or any person claiming
through of under him will not have any right to
be heard or be represented before the Deputy
Charity Commissioner in Change Report
proceedings.
5. The Deputy Charity Commissioner shall dispose
of the Change Report as expeditiously as
possible and in any event within 6 months from
today.
6. First Appeal disposed of accordingly no order as
to cost."
OBJECTIONS TO THE CHANGE REPORT
18] Before the Change Report No. 888 of 2003 was filed,
the respondent No. 3 before this Court, Shri Sudhas Narayan
Jadhav, resident of Mumbai, filed an objection which is
reproduced below.
"Sir,
Kindly take note that I have objection to the
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manner in nominating the following persons as
the members of Governing Body of Trustees of
the above mentioned trust.
1. Mr. D. C. Gangurde,
2. Mr. Varale Bhalchandra
3. Mr. Gangadhar Pantawane
4. Mr. Chapalgaonkar.
I further request that before the above
mentioned persons being accepted as Trustees,
I should be given an hearing and my objection be
noted in light of the judgment given by the
Hon'ble High Court, Mumbai, in regard to the
above mentioned persons.
With regards".
Shri Prakash Ambedkar, the learned counsel for the
respondent No.3, Shri Sudhas Narayan Jadhav invited my
attention to the objections dated 2 nd May 2009 at Exhibit - 12
(record pages 115 to 127), dated 1 st July 2009 at Exhibit - 16
(record pages 167 to 175) and dated 16 th June 2010 at Exhibit -
51 (record page 303). My attention was also invited to the
objections dated 2nd March 2010 at Exhibit - 29 and dated 4 th
March 2010 at Exhibit - 28 filed by Dr. S. P. Gaikwad and Mr. M.
S. Moray respectively (record pages 625 and 611), to the Change
Report. One another person Shri Subhash Sambhaji Jadhav
resident of Aurangabad had also filed objections dated 1 st July
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2009 at Exhibit - 18 (record page 171), dated 9 th July 2009 at
Exhibit - 19 (record page 189), dated 05.10.2009 at Exhibit - 23
(record page 227) and dated 6th November 2009 at Exhibit - 24
(record page 139). Except these objections, neither any other
Trustee nor any stranger filed any objection to the Change
Report. Atleast, it is not brought to my notice.
PROOF OF CHANGE REPORT.
19]
In support of the Change Report, the reporting
trustee Shri K.H. Rangnath examined himself at Exhibit - 56 and
he was cross examined at the instance of the objectors viz. Shri
Sudhas Jadav, Shri Moray and Dr. S. P. Gaikwad. Another
reporting trustee Principal D. J. Gangurde also entered the
witness box and examined himself as a Member-Secretary. He
was also cross examined at the instance of Shri Sudhas Jadhav,
Shri S. V. Moray and Dr. S. P. Gaikwad. Both these witnesses
have proved notice dated 12th December 2002 at Exhibit - 60
(record page 361) in respect of meeting of Governing Body held
on 20th December 2002, the intimation about distribution of
Agenda given on 16th December 2002 at Exhibit - 61 (record page
363), the attendance in the meeting dated 20 th December 2002
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marked as Exhibit - 72 (record page 409), the minutes of the
meeting dated 20th December 2002 at Exhibit - 103 (record page
861), minutes of the meeting dated 29th/30th January 2003 at
Exhibit - 104 (record page 883), confirming the minutes of earlier
meetings, minutes of the meeting dated 14th/15th May 2003 at
Exhibit -105 (record page 899), the minutes of the meeting dated
21st May 2007 at Exhibit - 111 (record page 1043). None of the
objectors entered the witness box in support of their objections.
CONSIDERATION OF OBJECTIONS
20] In the light of the aforesaid factual position and the
evidence led by the parties, I would like to first of all deal with
the additional substantial question of law as to whether the
objections regarding legality and validity of the notice of meeting
dated 12th December 2002 at Exhibit - 60, the proceedings in the
form of intimation letter at Exhibit - 61 and the minutes of
meeting dated 20th December 2002 at Exhibit - 103. Though the
Deputy Charity Commissioner has recorded the finding that the
meeting held on 20th December 2002 was legal and valid, the
learned Joint Charity Commissioner as well as the learned
District Judge have concurred in setting aside such finding and
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further holding that all these proceedings were illegal and
invalid.
21] In view of the consent terms accepted by this Court
on 4th February 2010 in First Appeal No. 39 of 2010, the
objections raised by the stranger Shri Subhash Sambhaji Jadhav,
a resident of Aurangabad, at Exhibits - 18, 19, 23 and 24 did not
deserve any consideration. The consent terms accepted by this
Court clearly records the finding that Shri Subhash Sambhaji
Jadhav shall have no right to be heard or represented before the
Deputy Charity Commissioner in the Change Report proceedings.
Shri Subhash Sambhaji Jadhav did not challenge this order, but
remained silent though he was the respondent in First Appeal No.
39 of 2010. None of the parties have raised any dispute in
respect of this position, even before this Court.
22] I have gone though the objections dated 2 nd May 2009
at Exhibit - 12 (record pages 115 to 127), dated 1 st July 2009 at
Exhibit - 16 (record pages 167 to 175) and dated 16 th June 2010
at Exhibit - 51 (record page 303) filed by another stranger Shri
Sudhas Narayan Jadhav, a resident of Mumbai, who is the
respondent no.3. There is not even whisper about the legality and
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validity of the proceedings or the documents at Exhibits - 60, 61,
72 and 103. Though a relief was claimed that the Change Report
be rejected on the ground that it is not in conformity with the
composition of members of the Governing Body, the objection is
totally vague and unspecific. How and in what manner it is not in
conformity has not been stated. It is stated that no notice was
issued, no meeting was held. It is not the objection that Principal
D.J. Gangurde was not the Member-Secretary. It is not the
objection that Principal D.J. Gangurde was not competent to issue
notice of meeting. Shri Sudhas Narayan Jadhav, the objector did
not enter the witness box to depose and make himself available
for cross examination, though he cross examined the two
reporting trustees namely Shri K. H. Rangnatha and Dr. D. J.
Gangurde. Even in such cross examination, no questions are put
to these witnesses on the legality and validity of such documents
and proceedings. The questions were put to these witnesses in
respect of objections which were not pleaded or raised.
23] Shri Prakash Ambedkar, the learned counsel or the
respondent No. 3 invited my attention to the application dated
7th June, 2010 at Exhibit - 49 (record page 831) filed by a
reporting trustee Shri Rangnath, claiming the relief that Shri
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Sudhas Jadhav, the respondent No. 3 herein, should not be
permitted to participate in the proceedings of Change Report.
Inviting my attention to the order dated 29 th June, 2010, below
Exhibit - 49 (record page 837), it is urged that the Deputy Charity
Commissioner rejected such application holding that the
respondent No. 3 has been participating in the proceedings right
from beginning, though there is no specific order passed under
Section 73A of the Bombay Public Trusts Act. According to him,
the Court is deemed to have passed an order under Section 73A
of the said Act.
24] Section 73A of the Bombay Public Trusts Act, 1950, is
relevant and the same is reproduced below.
"73A. Power of Enquiry Officer to join
persons as party to proceedings. - In any
proceedings under this Act, any person having
interest in the public trust may be joined as a
party to such proceedings on an application
made by such person or such terms and
conditions as the officer holding the enquiry may
order."
The aforesaid provision speaks about the intervention
in any proceedings under the Act by a stranger claiming himself
to be a person having interest in the trust. The Authority before
whom such proceedings are pending has to first of all find out as
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to whether such person can be termed as a "person having
interest in the public trust". If it is so found, then the Authority
may permit such person to participate in the proceedings on such
terms and conditions which he may deem fit and proper.
25] The expression "person having interest in the trust" is
defined under Section 2(10) of the said Act, which is reproduced
below.
2. Definitions. - In this Act unless there is
anything repugnant in the subject or context, -
...
...
(10) "person having interest" includes -
(a) in the case of a temple, person who is
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.
(b) in the case of a math, a disciple of the
math or a person of the religious
persuasion to which the math belongs,
(c) in the case of a wakf, a person who is
entitled to receive any pecuniary or other
benefit from the wakf and includes a
person who has right to worship or to
perform any religious rite in a mosque,
idgah, imambara, dargah, maqbara or
other religious institution connected with
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the wakf or to participate in any religious
or charitable institution under the wakf.
(d) in the case of a society registered under
the Societies Registration Act, 1860 (XXI
of 1860), any member of such society, and
(e) in the case of any other public trust [any
trustee or beneficiary]
The Authorities considering such application under
Section 73A of the said Act cannot mechanically, without
application of mind to the aforesaid provisions of the Act and
merely for the sake of asking, permit any person claiming to
have an interest in such trust, to participate in the proceedings.
The expression "person having interest in the public trust"
represents the persons having bonafide and genuine interest in
public trust as against an interest with an ulterior motive or
malafide intention. The Authority is, therefore, required to
consider the contents of any such application, if made and the
bonafides in claiming participation. If required, the Authority
may ask the party concerned to enter the witness box and be
subject to the cross-examination so as to establish his bonafides
and the status as a "person having interest in the public trust".
The recording of finding that the person is or is not having such
bonafide interest in the public trust, is a sine qua non for
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permitting intervention in the matter. Otherwise, the very object
in introducing the provision of Section 73A of the said Act shall
frustrate, resulting misuse of the provision. No doubt, the
definition is inclusive, but it cannot be said that the person acting
against the interest of such public trust or has no interest in the
public trust or having hostile interest or has no connection with
such public trust, can be permitted to participate in the
proceedings without establishing the bonafides and testing his
case on the touchstone of the provision of Section 73A read with
Section 2(10) of the said Act.
26] Perusal of the order dated 29th June, 2010 below
Exhibit - 49, does not reflect any such application of mind by the
Deputy Charity Commissioner while permitting the respondent
No. 3 to participate in the proceedings. There is no finding
recorded that the respondent No. 3 has established that he is a
person having bonafide interest in the trust in question as
required by Section 73A read with Section 2(10) of the said Act.
In the absence of finding on such jurisdictional fact, the Court
and the authorities below have committed an error of law in
permitting the respondent No.3 to participate in the proceedings
of Change Report. Even otherwise, the respondent No. 3 has not
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made out a case in the pleadings and evidence either under
clause (a) or clause (b) or clause (c) of sub-section (10) of
Section 2 of the said Act, which is reproduced above. The Courts
and the Authorities below have, therefore, committed an error in
entertaining and deciding the objection regarding legality and
validity of the proceedings of the meeting dated 20 th December,
2002 at Exhibit - 103 on its own merits at the instance of the
respondent no.3 Shri Sudhas Jadhav. The substantial question of
law at Sr.No.1 is, therefore, answered accordingly.
26] In spite of permitting the respondent No. 3 to
participate in the proceedings of the Change Report, it is not
known as to what purpose has been achieved by him except to
create hurdles and impediments in the routine proceedings
before the Deputy Charity Commissioner. The respondent No.3 is
a stranger and he has neither raised any specific objection, nor
has entered the witness box. There is lack of definite approach
and definite object and interest in the trust reflected upon
reading of the haphazard cross-examination conducted on the
part of the respondent No.3. The evidence in cross examination
which travels beyond the objections raised at Exhibits - 12, 16
and 51 was not admissible.
rpa 29/42 fa1249.12.odt
27] The respondent Nos. 1 and 2 viz. Shri Mansingh S.
Moray and Dr. S.P. Gaikwad, filed their objections at Exhibit - 28,
dated 2nd March, 2010 and at Exhibit - 29, dated 4 th March, 2010,
respectively in the proceedings of Change Report. The objections
are identical and there is absolutely no difference. It was one of
the objections raised that Dr. Gangadhar Pantwane was
disqualified for becoming a member as he was indicted in the
land grabbing of the society by the High Court in Second Appeal
No. 202 of 1992 and Principal D.J. Gangurde was disqualified by
virtue of Lentine Commission's Report and in the light of Writ
Petition Nos. 40 of 1996 and 3193 of 2002. It is their specific
stand that such objections raised in the meeting held on 20th
December, 2002, were not recorded in the minutes of the
meeting. Except this, there is no other objection raised by the
respondent Nos. 1 and 2.
28] Before proceeding to deal with the objections raised
by the respondent Nos. 1 and 2, I would like to note certain
factual position which is not disputed by them. It is not the
objection of the respondent Nos. 1 and 2 either that the meeting
dated 20th December, 2002 at Exhibit - 103 was not held or that
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the proceedings of the said meeting including the notice at
Exhibit -60, intimation at Exhibit - 61 or the minutes are in any
manner illegal or invalid. It is also not their objection that they
were not served or knowing the Agenda of the said meeting. The
respondent Nos. 1 and 2 have not only participated in the
meeting dated 20th December, 2002, by marking their attendance
at Exhibit - 72, but also in the meeting dated 22 nd July 2005. In
the meeting dated 14th /15th May, 2003 at Exhibit - 105, the
minutes of the earlier meeting dated 29 th /30th January 2003, at
Exhibit - 104, confirming the minutes of the meeting dated 20 th
December, 2002, at Exhibit - 103, were confirmed. The
respondent No.1 - Shri M.S.Moray participated in the said
meeting.
29] In none of the meetings held subsequent to 20th
December 2002, the respondent Nos. 1 and 2 raised any
objection to the effect that the minutes of the meeting held on
20th December, 2002 were not correctly recorded. In their
objections at Exhibit Nos. 28 and 29, the respondent Nos. 1 and
2 have not challenged the legality and validity of the proceedings
of the meeting dated 20th December, 2002. The Deputy Charity
Commissioner, therefore, could not have permitted the
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respondent Nos. 1 and 2 to cross examine the reporting trustees
on the legality and validity of the proceedings of the meeting
dated 20th December, 2002 or of the documents at Exhibits - 60,
61, 72, 103, 105 and 111. In the absence of such objections, the
surprise cross-examination cannot be admitted in evidence to
reject the Change Report in question.
30] The Change Report was filed on 26 th February 2003
and thereafter several events have occurred which are noted in
the earlier paras till the date of filing of the objections at Exhibit
Nos. 28 and 29 by the respondent Nos. 1 and 2 on 2 nd March,
2010 and 4th March 2010. They had not challenged the initial
acceptance of the Change Report by the Assistant Charity
Commissioner on 22nd July, 2005. In Revision Application No. 6 of
2008 challenging the acceptance of Change Report, they were
the respondents along with the other reporting trustees. The
learned Joint Charity Commissioner set aside the said Change
Report on 14th January, 2009, which was maintained by the
learned City Civil Judge by dismissing the application under
Section 72 of the said Act on 24th November, 2009. The
respondent No.1 Shri M.S.Moray was one of the appellants in
First Appeal No. 39 of 2010 filed before this Court being
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aggrieved by the orders passed setting aside the acceptance of
Change Report. The respondent No. 2 also did not raise any
challenge to the initial acceptance of Change Report. It is thus
apparent from the conduct that there was tacit support of the
respondent Nos. 1 and 2 to the stand taken by the other
reporting trustees for acceptance of the Change Report, from 26 th
February, 2003, till 2nd March, 2010, when for the first time
objections at Exhibit -28 and 29 were filed.
31]
In the objections at Exhibit Nos. 28 and 29, the
contention of the respondent Nos. 1 and 2 is that Dr.Gangadhar
Pantawane was disqualified for becoming a member of the Trust
as he was indicted in the land grabbing of the society by the High
Court in Second Appeal No. 202 of 1992. A copy of this decision
is placed on record. Shri Prakash Ambedkar, the learned counsel
appearing for the respondent no. 3 has taken me through the
relevant portion in the said judgment and has conceded that
there is no such indictment of Dr. Gangadhar Pantawane by the
High Court. It was the another objection that Principal
D.J.Gangurde was also disqualified by virtue of Lentine
Commission's Report. Their case in the said objection was that in
fact they had raised such objection in the meeting dated 20 th
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December, 2002, in which these two persons namely Dr.
Gangadhar Pantawane and Principal D.J.Gangurde were inducted
as members by the Governing Body. However, such objections are
not recorded in the minutes of the meeting. The respondent
Nos. 1 and 2 have not entered the witness box to substantiate
such plea and to demonstrate as to how both these persons were
disqualified from being inducted as the members of the
Governing Body of the Society. The Court and the authorities
below have not even taken the efforts to find out that really there
was such indictment and incurring of disqualification.
32] The parties have strongly contested the issue that Dr.
Gangadhar Pantawane and Principal D.J.Gangurde did not belong
to Buddhist community. There cannot be any dispute that in
terms of Article Nos. 7 and 20 of the Memorandum of
Association, these two persons were not qualified to be chosen as
the members of the Governing Body of the Trust, if they do not
belong to the category of Scheduled Caste converted to
Buddhism. In spite of granting opportunity to produce evidence
on record to substantiate the fact that these two persons were
Buddhist, the Courts below have recorded the finding that the
reporting trustees have failed to avail the opportunity provided to
rpa 34/42 fa1249.12.odt
them to prove such fact.
33] None of the learned counsels appearing for the
parties could bring to my notice any objection other than those at
Exhibit-12, Exhibit-16, Exhibit-18, Exhibit-19, Exhibit-23,
Exhibit-24, Exhibit-28 and Exhibit-29. In none of these objections
the question was raised as to the eligibility or qualifications of
these two persons namely Dr. Gangadhar Pantawane and
Principal D.J.Ganjurde. However, the Court and the authorities
below have devoted lot of pages to discuss such objection. In the
absence of any such objection being raised, the question of
reporting trustees leading any evidence to establish eligibility
and qualifications of these two persons to become the members
of the Governing Body in terms of Articles 7 and 20 of the
Memorandum of Association did not arise. Be that as it may, in
the Appeal before the Joint Charity Commissioner under Section
70 of the said Act, affidavits were filed evidencing the fact that
these persons actually belong to the category of Scheduled Caste
converted to Buddhism.
34] Coming to the substantial question of law at Sr. Nos.
(b) and (d) regarding grant of permission by the Joint Charity
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Commissioner in Appeal under Section 70(3) of the Bombay
Public Trust Act, to take additional evidence on record, the
decision of the learned Single Judge of this Court in the case of
Rahul S/o. Sudhir Ghare and others vrs. The Joint Charity
Commissioner, Amravati and another, reported in 2007 (6)
ALL MR 638 need to be seen. After taking into consideration
the provision of Section 70(3) of the said Act and the provisions
of Order 41, Rule 27 of C.P.C regarding production of additional
evidence in the appellate Court, this Court has held in paragraph
7 as under;
"7. ..........
Perusal of clauses (a), (aa) & (b) of sub-rule (1) shows
that such permission to lead additional evidence can
be granted if any of the circumstances enumerated in
the above clauses require. Clauses (a) & (aa) clearly
define the limits of powers of appellate court when an
order allowing additional evidence can be made.
These two clauses (a) and (aa) are the clauses alike
sub-section (3) of Section 70 of the Act. It is thus seen
that the power under sub-section (3) of Section 70 of
the Act would consequently be not power akin to the
one provided under Rule 27 of the Code of Civil
Procedure. As per clause (b) of sub-rule (1) of Rule 27
of the Code of Civil Procedure if the appellate Court
requires or feels any particular additional evidence to
be necessary to enable it to pronounce a judgment,
this clause (b) can be invoked. In my opinion, the
scope of sub-section (3) of Section 70 of the Act is
broader than the provisions of Order 41, Rule 27 of the
Code of Civil Procedure".
Thus, it is apparent that the power of the Joint Charity
Commissioner under Section 70(3) of the said Act is wider than
rpa 36/42 fa1249.12.odt
the power of the Civil Court under Order 41, Rule 27 of C.P.C.
The power under Section 70(3) of the said Act is not
circumscribed by the conditions for exercise of such power
incorporated under Order 41, Rule 27 of C.P.C. The lower
appellate Court and the Authorities ought to have, therefore,
seen that the appellants were not provided an opportunity to
produce evidence regarding eligibility and qualification of two
persons inducted as members before the Deputy Charity
Commissioner. In the absence of any such objection in writing,
there was no occasion for the reporting trustees to avail the
opportunity to lead evidence before the Deputy Charity
Commissioner on this issue. At any rate, the power of the
learned Joint Charity Commissioner under Section 70(3) of the
said Act is wide enough to grant such permission which ought to
have been granted keeping in view the facts and circumstances
of this case. The two substantial questions of law at Sr.No. (b)
and (d) are answered accordingly.
35] The Charity Commissioner is the custodian of the
trust properties. The Bombay Public Trust Act confers upon him
not only the judicial control over the affairs of the public trust,
but also the administrative control. While exercising quasi
rpa 37/42 fa1249.12.odt
judicial powers, the Charity Commissioner cannot over look the
interest of the trust and whether the trust is being properly
administered and managed and the trustees occupying the
position are eligible and qualified in terms of the Memorandum of
Association governing the trust. If a question arises before the
Charity Commissioner in any proceedings as to the fitness,
suitability, eligibility and qualification of the person to be
appointed or continued as a trustee of any public trust, the
Charity Commissioner is empowered in exercise of its power of
superintendence to make such enquiries and decide such
question. The substantial questions of law at Sr.No. (a) and (c)
are, therefore, answered holding that the Charity Commissioner
is obliged to find out the facts and ascertain the truth in the
allegations so made in respect of the fitness, suitability,
eligibility and qualification of a person to be appointed as the
trustee or the member of the trust.
36] From the discussion above, the conclusions reached
can be summarized as under;
(I) The stranger Shri Subhas Sambhaji Jadhav, resident
of Aurangabad and Shri Sudhas Narayan Jadhav,
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resident of Mumbai, have failed to establish that they
are the persons having interest in the trust as defined
under Section 73A read with Section 2 (10) of the
Bombay Public Trust Act. The Courts and authorities
below have, therefore, committed an error in
entertaining the objections regarding legality and
validity of the notice dated 12th December, 2002 at
Exhibit-60, intimation about distribution of Agenda
dated 16th December, 2002 at Exhibit-61,
ig the
attendance of the meeting dated 20th December, 2002
at Exhibit-72 and the minutes of the meeting dated
20th December, 2002 at Exhibit-103.
(II) None of the trustees including the objectors i.e.
Respondent No. 1 Shri M.S.Moray and Respondent
No. 2 Dr. S.P. Gaikwad raised any objection in respect
of the legality and validity of the documents at
Exhibits - 60, 61, 72 and 103 which are the part and
parcel of the proceedings of the meeting of Governing
Body held on 20th December, 2002. The Courts and
authorities below have committed an error in
permitting the objectors to cross examine the
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reporting trustees on these aspects of the matter and
to record the finding that these proceedings were
illegal and invalid.
(III) The objections at Exhibit-28 and 29 regarding
eligibility and qualifications of Dr. Gangadhar
Pantawane and Principal D.J. Gangurde to become the
members of the trust have not been considered on its
own merits by taking into consideration the judgment
delivered by this Court in Second Appeal No. 202 of
1992 and the Lentine Commission's Report in the
light of Writ Petition Nos. 40 of 1996 and 3193 of
2002, and the provisions of Articles 7 and 20 of the
Memorandum of Association.
(IV) The objection that Dr. Gangadhar Pantawane and
Principal D.J. Gangurde did not belong to the category
of Scheduled Caste converts to Buddhism and were
not qualified to be chosen as the members of the trust
on the basis of Article 7 and 20 of the Memorandum
of Association was not raised before the Deputy
Charity Commissioner and hence, the Court and the
rpa 40/42 fa1249.12.odt
authorities below have committed an error in holding
that the reporting trustees have failed to avail the
opportunity provided to the reporting trustees to
establish this fact.
(V) The powers of the authorities below under Section
70(3) of the Bombay Public Trust Act are wide enough
to permit the parties to lead additional evidence and
it is not circumscribed by the conditions mentioned
in Order 41, Rule 27 of the Civil Procedure Code. In
the present case, the authorities below ought to have
remanded the matter back to the Deputy Charity
Commissioner by permitting the reporting trustees to
produce additional evidence on record which is
required to be considered.
37] In view of above, the first appeal is allowed and the
following order is passed.
i] The order dated 25th October, 2010, passed by the
Deputy Charity Commissioner, Greater Bombay,
Mumbai Region, in Change Report No. 888 of 2003 is
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hereby quashed and set aside.
ii] The order dated 3rd May, 2012 passed in Appeal No.
30 of 2010 by the learned Joint Charity Commissioner
is hereby quashed and set aside.
iii] The judgment and order dated 3rd July, 2005 passed
by the learned Judge, City Civil Court at Mumbai in
Charity Application No. 4 of 2012 is hereby quashed
and set aside,
iv] The matter is remitted back to the Deputy Charity
Commissioner, Mumbai Region, Mumbai, to consider
and decide the eligibility and qualifications of Dr.
Gangadhar Pantawane and Principal Shri D.J.
Gangurde to become the members of the Governing
Body of the trust in the light of the observations made
by this Court, by permitting the parties to lead oral as
well as documentary evidence.
v] The parties to appear before the learned Deputy
Charity Commissioner on 1st September, 2015. No
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fresh notices shall be issued to the parties. No other
objections shall be entertained and the matter shall
be decided within a period of three months from the
date of first appearance of the parties before him.
The record and proceedings be immediately sent to
the lower authorities. No orders as to cost.
ig JUDGE
