Devi Mahadeo Mandir Trust, ... vs Mukundwadi Co-Op. Housing ...
2017 Latest Caselaw 5947 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                AURANGABAD BENCH, AURANGABAD


                   FIRST APPEAL NO. 42 OF 2017


Devi Mahadeo Mandir Trust,
Kesarsingpura, Aurangabad
(A public religious trust
bearing Registration No.
PTR A-1226/1963)
through its Trustees - 

1]       Milind Manikrao Dolare,
         age 40 years, occ. Service,
         R/o Kesarsingpura, Aurangabad,

2]       Mukund Manikrao Dolare,
         age 38 years, occ. Pujari,
         R/o Kesarsingpura, Aurangabad,

3]       Umesh Madhavrao Dolare,
         age 43 years, occ. business,
         R/o Kesarsingpura, Aurangabad,

4]       Uday Madhavrao Dolare,
         age 49 years, occ. Service,
         R/o Kesarsingpura, Aurangabad,

5]       Mahesh Manikrao Dolare,
         age 42 years, occ. Service,
         R/o Kesarsingpura, 
         Aurangabad,                      ... Appellants
                                          Orig.Plaintiffs

                VERSUS

1]       Mukundwadi Coop. Hosing
         Society Ltd.,
         Kesarsingpura, Aurangabad,
         through its Chairman -
         Shri S.S.Ahire, Advocate
         R/o 'Saptashring', Plot No.2,



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         Abhinandan Housing Society,
         Ikheda, Paithan Road,
         Aurangabad.
                 AND
         Through its Secretary
         Shri Sopan Pawar
         R/o 'Deochhaya', A-62,
         New Shantiniketan Colony,
         Aurangabad,

2]       Charity Commissioner,
         through Joint Charity
         Commissioner office,
         Kranti Chowk, Aurangabad,

3]       Municipal Corporation,
         Aurangabad, through its
         Commissioner,

4]       MSEDCL (Maharashtra State
         Electricity Distribution
         Company Ltd.) Jubilee Park,
         Aurangabad                              ... Respondents
                                                 Orig.Defendants

                       .....
Mr. S.V.Adwant, advocate for the appellant
Mr. P.F.Patni, advocate for respondent no.1
                       .....

                                    CORAM : K.L.WADANE, J.

                    Reserved on    : 10.8.2017
                  Pronouncement on : 16.8.2017



ORAL JUDGMENT  :

Heard Mr. S.V.Adwant, learned counsel

appearing for the appellants and Mr. P.F.Patni,

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learned counsel appearing for respondent no.1.

With their consent, the present appeal is taken up

for final hearing at the admission stage.

2. Appellant no.1 is a religious public trust

registered under the provisions of the Maharashtra

Public Trusts Act.

3. Survey No.15 to the extent of 3 acres 6

gunthas, situated at Kesarsingpura, Aurangabad is

dedicated to the temple and is a trust property.

It is recorded in Schedule I of the register of

Public Trust. Appellant/Trust filed Trust Suit No.

4 of 2010 against the defendants therein before the

District Court, Aurangabad for cancellation of

lease deed, dated 28.3.1973 and for recovery of

possession of the trust property. Defendant no.1

caused appearance in the suit and filed its say and

written statement. The learned District Judge

framed issue of jurisdiction, which was tried as a

preliminary issue. Upon hearing the parties, the

learned District Judge, Aurangabad has passed an

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order, dated 8.11.2016 and the suit is dismissed

for want of jurisdiction. Hence, the present

appeal.

4. Mr. Adwant, learned counsel appearing for

the appellants submitted that the suit was filed by

the trust itself against the person in possession

on the basis of lease. He further submitted that

erstwhile trustees have executed a lease in favour

of defendants and it was without permission of the

Charity Commissioner under Section 36 of the

Maharashtra Public Trusts Act. Mr. Adwant, learned

counsel further submitted that since the trust

itself is a plaintiff, therefore, consent as

required under Section 51 of the Maharashtra Public

Trusts Act is not at all required.

5. As against this, the learned counsel

appearing for the respondent/defendant submitted

that since the suit was filed by the trustees, the

permission as contemplated under Sections 50 and 51

of the Maharashtra Public Trusts Act is required,

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and therefore, the learned District Judge has

rightly decided that it has no jurisdiction to try

the suit.

6. Considering the submissions of both the

sides, a very short point arises for my

consideration i.e. whether the prior consent of the

Charity Commissioner is required to institute the

suit ?

7. Learned counsel appearing for the

respondent has relied upon the observations in the

case of Vidarbha Kshatriya Mali Shikshan Sanstha,

by its President Shri Wasudeorao Dattaji Sonar vs

Mahatma Fuley Shikshan Samiti, Amravati, through

its President Ruprao Bhimrao Yawale, reported in

1986 Mh.L.J. 773, wherein it is observed that,

"Section 50 of the Bombay Public Trusts Act does

not contemplate the suit which is to be filed by a

person for enforcing his own right. In such a case

the suit by a Public Trust for enforcing its civil

rights is not barred by Section 50 of the Bombay

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Public Trusts Act. Such a suit has to be filed in

the ordinary forum under the Civil Procedure Code

and is not required to be instituted in the Court

as defined in Section 2(4) of the Bombay Public

Trusts Act. The expression, 'court' as defined in

Section 2(4) only deals with the suits which are

filed under the provisions of the Bombay Public

Trusts Act and has no applicability to suits other

than those prescribed thereunder. Suit is not

barred by the first proviso to Section 50 of the

Act because in its contextual interpretation and

read in the light of the substantive provision can

only bar a suit which is contemplated by the

substantive provision."

Relying upon the aforesaid observations,

the learned counsel for respondent argued that the

suit, instituted in the District Court i.e. a court

within the meaning of Section 2(4) of the

Maharashtra Public Trusts Act, is not maintainable.

The appellants/plaintiffs have to file a suit in

ordinary forum i.e. before the Civil Court

and if at all the plaintiffs / appellants want

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to file their suit in the Court as contemplated

under Section 2 (4) of the Maharashtra Public

Trusts Act, then prior permission/consent of the

Charity Commissioner is must.

8. Mr. Adwant, learned counsel appearing for

the appellants has pointed out that the

observations in the case of Vidarbha Kshatriya Mali

Shikshan Sanstha (supra) have already been

overruled by the Division Bench of this Court in

the case of Amirchand Tulsiram Gupta and others vs

Vasant Dhanaji Patil and others reported in 1992

Mh.L.J. 275. I have gone through the observations

in the case of Amirchand Tulsiram Gupta, wherein it

is specifically observed as follows : -

" 6. The Bombay Public Trusts Act, 1950 was enacted to regulate and to make better provision for administration of public religious and charitable trusts in the State of Bombay. The plaintiffs are the trustees of a charitable trust registered under this Act. Section 50 of the Act deals with the topic "suits by or against or relating to public trusts or trustees or other", and inter alia provides that where a direction or decree is required to recover the possession of a property belonging to a

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public trust from a trustee, ex- trustee, alliance, trespasser or any other person, including a person holding adversely to the public trust, the Charity Commissioner may institute a suit in the Court within the local limits of whose jurisdiction the subject matter of the Trust is situated. The section provides that apart from the Charity Commissioner two or more persons having the interest and having obtained consent in writing of the Charity Commissioner can institute the suit and seek reliefs which are set out in the section. Section 51 of the Act provides that if person having an interest in any public trust intends to file a suit of the nature specified in Section 50, then such person shall apply to the Charity Commissioner in writing for his consent. The Charity Commissioner in writing for his consent. The Charity Commissioner may grant or refuse consent depending upon the satisfaction of the existence of a prima facie case. The contesting defendants urged before the trial Judge that consent under sections 50 and 51 of the Public Trusts Act is a condition precedent for institution of the suit by the trustees for recovery of possession against the trespassers or a person claiming adversely to the interest of the trust and failure to obtain consent must result in dismissal of the suit. The contention was met by the plaintiffs by relying upon two decisions of this Court reported in 63 Bom.L.R. 312, Gurusiddappa Tipanna Mugeri v. Miraj Education Society, Miraj, and 69 Bom.L.R. 472, Rajgopal Raghunathdas Somani v. Ramchandra Hajarimal Jhavar. The alter decision is of a Division Bench and follows the

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earlier decision recorded by the Single Judge. The Division Bench held that the trustee is the legal owner of the trust property and enjoys all the rights inherent in a natural owner of a property and can sue to recover trust property, and Section 50 cannot apply as a bar to the substantive rights of the trustee to institute suit. The Division Bench further held that the provisions of section 92 of the Code of Civil Procedure are analogous to the provisions of Section 50 and the separate right of a trustee de hors the provisions of Section 50 to file a suit for protection of trust properties cannot be disputed. The Division Bench there upon held that provisions of Section 50 are not restrictive but cumulative and it only entitles a person having an interest to sue and does not prohibit any suit being field by trustees of a public trust. The Division Bench then observed :

" The trustee who is in the position of a legal owner of property can sue to recover the property from persons who are in occupation without any right, title or interest without obtaining any previous sanction from the Charity Commissioner". "

On perusal of the afore said observations,

it appears that the observations in the case of

Vidarbha Kshatriya Mali Shikshan Sanstha have been

overruled and it is specifically observed that the

trustee who is in the position of a legal owner of

property can sue to recover the property from

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persons who are in occupation without any right,

title or interest without obtaining previous

sanction from the Charity Commissioner.

9. Mr. Adwant, learned counsel further relied

upon the observations in the case of Gafoor Ali

Hussain vs Ram Mahadik and others, reported in

2001 (1) ALL MR 153, wherein it is observed as

follows :-

" In fact this controversy has been resolved by a Division Bench of this Court in the case of Amirchand Tulsiram Gupta and others vs Vasant Dhanaji Patil and others. Mr. Salunkhe and Mr. Kadam, learned Counsel appearing for the respondents referred me to that judgment which considers the earlier judgments of the Supreme Court as well as this High Court on this point and holds that the trustee is the legal owner of the property and enjoys all the rights inherent in a natural owner of property and can sue to recover trust property. Section 50 cannot apply as a bar to the substantive right of the trustee to institute suit. No permission under section 51 is necessary in such a case. In view of the above clear position, the learned Judge of the City Civil Court was right in taking the view that the suit was maintainable and the consent of the Charity Commissioner was not necessary as a condition precedent."

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10. In the present case also, the

plaintiffs/appellants have instituted suit for

cancellation of lease deed executed by erstwhile

trustees. Therefore, the appellants can sue the

defendants without prior permission of the Charity

Commissioner, as observed by the Division Bench of

this Court. On perusal of the reasons recorded by

the learned District Judge, it appears that the

observations in the case of Vidarbha Kshatriya

Mali Shikshan Sanstha were brought to the notice

of learned District Judge, however subsequent

development and law laid down in Amirchand Gupta's

case was not brought to the notice of the learned

District Judge.

11. In view of the clear cut provision of law,

as referred above, I am of the opinion that the

learned District Judge has jurisdiction to try and

decide the suit between the parties and consent of

Charity Commissioner as required under Section 51

of the Maharashtra Public Trusts Act is not at all

required. Therefore, the impugned order needs to

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be set aside.

12. Hence, the following order.

           (i)            The appeal is allowed.

           (ii)           The   order   passed   below   Exh.1   by 

the learned District Judge-5, Aurangabad,

dated 5.11.2016 is hereby quashed and set

aside.

(iii) The learned District Judge,

Aurangabad to decide the suit on its own

merits, in accordance with law.

(K.L.WADANE, J.)

dbm