Bombay High Court
Shri Chandrakant S/O ... vs Smt. Alka Sahani And Others on 27 April, 2021
Bench: A.S. Chandurkar, Pushpa V. Ganediwala
FA600.16-final.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO. 600 OF 2016
1. Shri Chandrakant s/o Jaydevshankar
Thakar (deleted)
2. Shri Jagjeet Singh Gurusharan Singh
Aged about 51 years, Occ. Civil Engineer,
R/o. 5AF, Green Park Colony,
Tagore Road, Civil Lines, Nagpur-1
3. Shri Deepak Arora,
Aged about 50 years, Occ. Engineer,
R/o. 6AG, Green Park Colony,
Tagore Road, Civil Lines, Nagpur-1
4. Shri Amitabh Motiram Pawde,
Aged about 50 years, Occ. Engineer,
R/o. 149, Plot No. 15/1,
P.R. Sathe Road, Dhantoli, Nagpur-12
5. Shri Ashok Mohta,
Aged about 60 years, Occ. Business,
R/o. Mohta Nikunj,
Plot No. 135, Ramdaspeth, Nagpur
6. Shri Chandrakant Ragit,
Aged about Major, Occ. Service,
R/o. Plot No. 35, Sita Nagar,
Wardha Road, Nagpur
7. Abhishek Mohta,
Aged about Major, Occ. Business,
R/o. Mohta Nikunj,
Plot No. 135, Ramdaspeth,
Nagpur
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FA600.16-final.odt 2
8. Madan Tiwari,
Aged Major, Occ. Business,
R/o. 8, Dhobi Nagar Housing Society,
Narendra Nagar, Nagpur-15
9. Chandrakant Mantri
Aged Major, Occ. Business,
R/o. 203, Gulmohar Apartment,
Tilak Nagar, Amravati Road, Nagpur
10. Mrs. Archana Chaudhary,
Aged Major, Occ. Retired,
R/o. B-002, Shree Apartment,
New Urvila Colony,
Kotwal Nagar, Nagpur
11. Capt. K.M. Nandyal,
Aged Major, Occ. Retired,
R/o. 2/4, 82 HIG Colony,
Trimurti Nagar, Nagpur
12. Shri Narendra s/o Kantilal Jha,
Aged about 61 years, Occ. Advocate,
R/o. D-103, Pritam Complex,
Near Harihar Mandir,
Bhandara Road, Nagpur-8 ...APPELLANTS
Versus
1. Smt. Alka Sahani,
(Original applicant No. 1)
Aged Major, Occ. Nil,
R/o. 22, Sagar Apartment,
Civil Lines, Nagpur, Dist. Nagpur
2. Dr. R.H. Limse,
(Original applicant No. 2)
Aged about Major,
R/o. 108, Lokmanya Nagar,
Hingna Road, Nagpur
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3. Smt. Anubhuti Singh
(Original applicant No. 3)
Aged Major,
R/o. Flat No. 404, Amrut Monar,
Opp. Axix Bank, Civil Lines, Nagpur
4. Shri Amol Hansraj Khante
(Original applicant No. 4)
Aged Major,
R/o. 7, East High Court Road,
Ramdaspeth, Nagpur
5. Shri R.H. Bhangu
(Original applicant No. 5)
Aged Major,
R/o. A-3/21, Forest Housing Society,
Opp. Katol Road, Nagpur
6. Shri Sanjay Anwane
(Original applicant No. 6)
Aged Major,
R/o. Vidisha Apartment,
Shivaji Complex, Near Mankapur,
Nagpur
7. Dr. Pramila Vyavahare
(Original applicant No. 7)
Aged Major,
R/o. Siddi Vinayak Narsing Home,
Jamburn Road, Buldhana,
Dist. Buldhana
8. Shri Ashwin Krushnarao Ghatate,
(Original Non-applicant No. 1)
Aged Major, Occ. Business,
R/o. Goku, V.I.P. Road,
Civil Lines, Nagpur
9. R.S. Pandit,
(Original Non-applicant No. 2)
Deceased
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10. Swaraj Goel,
(Original Non-applicant No. 3)
Aged about Major, Occ. Not Known,
R/o. Winshaw Tower, Raj Nagar,
Nagpur
11. Indra Tripathi,
(Original Non-applicant No. 4)
Aged about Major, Occ. Not known,
R/o. Tilak Marg, Near Market Road,
New Delhi
12. Shailesh Sudhir Joglekar,
Aged about 49 years, Occ. Business,
R/o. 503, Govind Apartment,
Behind Shankar Nagar Post Office,
Shankar Nagar, Nagpur-10.
13. Sanjay Sudhir Joshi,
Aged about 49 years, Occ. Business,
R/o. Plot No. 3, Tilak Nagar, Nagpur-10.
14. Shri Satish Vasant Salpekar,
Aged about 62 years, Occ. Business,
R/o. A-2, Shri Gourinath, 86,
Shivaji Nagar, Nagpur-10
15. Col. Ash Bahadur Gurung
Aged about 68 years, Occ. Retired,
R/o. 279, Abhyankar Nagar,
Nagpur
16. Shri Prafulla Kumar Kale,
Aged about 63 years, Occ. Business,
R/o. 2, Vallabh Co-operative Society,
GM Chitnis Marg, Civil Lines, Nagpur
17. Shri Avinash Ganpatra Shegaonkar,
Aged about Major, Occ. Service,
R/o. Near Mehadia Square,
Dhantoli, Nagpur
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18. Abhiram Padmakar Deshmukh,
Aged about Major, Occ. Business,
R/o. 145, Farmland,
Ramdaspeth, Nagpur
19. Mrs. Malini Mangesh Joshi,
Aged about 46 years, Occ. Counselling,
R/o. Janki Niwas, Mama Road,
Dharampeth, Nagpur-10
20. Dr. Ravindra Prabhakar Bhoyar,
Aged about Major, Occ. Not known,
R/o. R-113, Reshimbag,
Near Sarveshwar Hanuman Mandir,
Nagpur-9
21. Shri Rajendra R. Deshmukh,
Aged about Major, Occ. Not known,
R/o. Plot No. 18, MHADA Colony,
Narendra Nagar, Nagpur
22. Shri Nirbhay Shankarrao Bhandarkar,
Aged about Major, Occ. Not known,
R/o. 65/A, Navnirman Society,
Opposite Radhe Mangalam Hall,
Ring Road, Pratapnagar, Nagpur-22
23. Shri Rajendra Manohar Dandekar,
Aged about Major, Occ. Not known,
R/o. 285, Near Doctors Colony,
Chatrapati Nagar, Wardha Road,
Nagpur-15
24. Mrs. Shalini Sanjay Arora,
Aged about 49 years, Occ. Housewife,
R/o. 3-AG, Green Park Colony,
Tagore Road, Civil Lines,
Nagpur
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25. Shri Rohit Prakash Somalwar,
Aged about Major, Occ. Not known,
R/o. Plot No. 44, Rajiv Nagar,
Behind Hotel Shivani,
Wardha Road, Nagpur
26. Shri Tarun Devsi Patel,
Aged Major, Occ. Business,
R/o. V.V. Traders, Near Sardar
Patel Square, Ghat Road, Nagpur
27. Shri Harshal Uddhav Aarvikar,
Aged about 44 years, Occ. Business,
R/o. 101, Sanket Apartment,
Dharampeth, Nagpur
28. Joint Charity Commissioner, Nagpur
Civil Lines, Nagpur
29. Joint Charity Commissioner, Mumbai
Near Worli Naka, Dr. Anni Bezant Road,
Mumbai ...RESPONDENTS
_______________________________________________________
Shri R.L. Khapre, Senior Advocate assisted by
Shri M.M. Dhandekar, Advocate for the appellants.
Shri C.S. Kaptan, Senior Advocate assisted by
Shri U.A. Gosavi, Advocate for respondent Nos. 8 & 26.
Shri A.S. Jaiswal, Senior Advocate assisted by
Mrs. Radhika Bajaj, Advocate for respondent No. 18
Shri N.A. Gaikwad, Advocate for respondent No. 12.
Shri V.V. Bhangde, Advcoate for respondent No. 14.
Shri Anand Parchure, Advocate for respondent No. 13.
Shri S.Y. Deopujari, Advocate for respondent Nos. 19 & 27.
Shri A.P. Thakre, Advocate for respondent Nos. 20 to 23.
Shri S.P. Bhandarkar, Advocate for respondent No. 24.
Ms. T. Khan, A.G.P. for respondent Nos. 28 & 29.
None appeared for respondents Nos. 1 to 7, 9 to 11, 15 to 17
and 25, though duly served.
_______________________________________________________
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FA600.16-final.odt 7
CORAM : A.S. CHANDURKAR AND
PUSHPA V. GANEDIWALA, J.
ARGUMENTS WERE HEARD ON : FEBRUARY 23, 2021
JUDGMENT IS PRONOUNCED ON : APRIL 27, 2021
JUDGMENT (Per Pushpa V. Ganediwala, J.)
This appeal is directed against the judgment and
order dated 19/05/2016 passed by the Joint Charity
Commissioner, Mumbai, in Application No. 74/2015 which was
filed under Section 47 and Section 41-A of the Bombay Public
Trust Act, 1950 (Now The Maharashtra Public Trusts Act)
whereby the learned Joint Charity Commissioner allowed the
application and appointed 10 (Ten)Trustees-Administrators and
9 (Nine) Co-opted Administrators of the Trust by the name
Vishwa Punarnirman Sangha, Nagpur.
By an Order dated 19/10/2016, the learned Single
Judge while hearing this appeal, relied on the Judgment in the
Case of Vanmala Manoharrao Kamdi v. Deputy Charity
Commissioner, 2012 SCC OnLine Bom 688 : (2012) 3 Mah LJ
594 which held that orders/directions under Section 41-A of
the Act of 1950 are administrative in nature, hence directed to
place this matter before the Division Bench for appropriate
orders on this point. Accordingly, this appeal came to be placed
before the Division Bench.
The facts leading to filing of this appeal may be
stated as under :
2. Vishwa Punarnirman Sangha, Nagpur (World-
Reconstruction Society) is a Trust (hereinafter referred to as-
Sangha or Trust), registered under the provisions of the
Societies Registration Act, 1860 and the Bombay Public Trusts
Act (now Maharashtra Public Trusts Act)(for short "MPT Act")
vide Registration No. E-1344(N). The aims and objects of the
Sangha is stated in its MEMORANDAM OF ASSOCIATION, and
the administration of the Sangha is governed by its ARTICLES
OF ASSOCIATION. In furtherance of its aims and objects, the
Sangha runs a School by the name Bharti Krishna Vidya Vihar,
Telankhedi, Nagpur, having a strength of around 2500 students
and around 150 staff members.
3. As per Clause 11 of the Memorandum of
Association, the administration of the Sangha is being carried
on by the Administrative Body constituted in accordance with
the Articles of Association. It shall consists of (1) TRUSTEES-
Administrators and (2) Co-opted Administrators, ordinarily
totaling 19 persons (representing both sexes) as laid down in
the Articles of Association.
4. As per Clause 12 of the Memorandum of
Association, the supreme control, governance,
superintendence, administration, management, investment,
use, application, disbursement or other disposal of any
property or funds of the Sangha shall -without prejudice to the
trust and the rights of the Trustees-depend on, and be decided
at the discretion of and be vested in the Administrative Body of
the Sangha duly constituted under its Articles of Association.
5. Applicant No. 1 Smt. Alka Sahani in the application
under Section 47 of the MPT Act before the learned Joint
Charity Commissioner claimed to be the recorded Secretary of
the Sangha and the other applicants claimed to be the persons
interested in the Sangha. The non-applicant Nos. 1 to 4 in the
said application are the recorded trustees of the Sangha.
6. It was the grievance of the applicants that as all the
change reports which were filed before the Assistant Charity
Commissioner came to be rejected, some outsiders were
interfering into the administration of the Trust without having
any locus. It was submitted that the Trust owns a huge
movable and immovable properties and cash in lacs of rupees.
To safeguard the said properties of the Trust and to streamline
its administration, it is necessary to appoint the trustees in
accordance with its bye-laws at the earliest. The applicants
showed their inclination to be appointed as trustees and
accordingly placed on record their bio-data and also prayed for
the direction under Section 41-A of the MPT Act for the proper
administration of the Sangha.
7. The non-applicant No. 1 in his reply denied all the
adverse allegations and submitted that the change reports were
rejected for want of compliance and the appeals against the
said orders are pending. The non-applicant No. 1 questioned
the maintainability of the application under Section 47 of the
MPT Act as the Sangha has its own Constitution which provides
for its organization and the manner in which the
administration of the Sangha shall be carried on. It was
submitted that as per the Constitution, the election of the
trustees of the Sangha was held and the necessary Change
Reports were filed on 27/12/2012. The Change Reports were
also filed as and when there was a change occurred due to
death or resignation of the recorded trustees. It was submitted
that there is a regular body for the administration of the
Sangha and, therefore, it is not necessary to appoint any
trustee as prayed in the application. The non-applicant No. 1
also alleged certain financial irregularities committed by
applicant No. 1 Smt. Alka Sahani.
8. The hearing of this proceeding came to transferred
to the file of Joint Charity Commissioner, Mumbai from the file
of Joint Charity Commissioner, Nagpur. In the said proceeding,
two applications under Section 73(A) of the MPT Act vide Exh.
23 and 24 came to be filed by the interveners (appellants
herein) to implead them as party respondents. The learned
Joint Charity Commissioner kept both these applications
pending to be decided along with Exh. 1. However, the same
came to be disposed of, being rendered infructuous as Exh. 1
came to be decided finally.
9. The learned Joint Charity Commissioner heard the
learned counsel appearing on behalf of both the sides and after
considering the record and the Inspection Report (Exh.18)
reached the conclusion that as of date, only three recorded
Trustees are surviving, which included applicant No.1 and non-
applicant Nos.1 and 4, and all the Change Reports filed by the
persons claiming to be the trustees of the said Sangha had been
rejected, and therefore, it is a fit case where the Joint Charity
Commissioner could exercise his jurisdiction to appoint
Trustees to bring the legal Administrative Body for governing
the affairs of the Trust. The learned Joint Charity
Commissioner also held that as per Clause 72 of Chapter XVII,
the quorum for Administrative meeting is 9 (nine), and in the
present case, the surviving Trustees did not form the requisite
quorum. The learned Joint Charity Commissioner observed that
once the strength of the legal Trustees comes down the figure
of minimum number of Trustees, as laid down in the
Constitution, the Authority of the Joint Charity Commissioner
assumes jurisdiction under Section 47 of the MPT Act to
appoint Trustees. It is further observed that the administration
of the said Sangha was not being carried out as per the
provisions of the Constitution of the Sangha. The learned Joint
Charity Commissioner placed reliance on the judgment of this
Court delivered in the case of Nawalchand Champalal
Chaudhari & Anr. Vs. Joint Charity Commissioner, Nagpur &
Anr., reported in 2007(1) ALL MR 71. The learned Joint
Charity Commissioner appointed 10 (ten) Trustees/
Administrators, which included applicant No.1 Smt. Alka
Sahani and respondent No.1 Ashwin Ghatate, the recorded
trustees. The Joint Charity Commissioner appointed Trustee
Administrators as under :
1) Smt. Alka Sahani
2) Shri Ashwin Krishnarao Ghatate
3) Dr. Mrs. Pratima Vyawahare
4) Shri Shailesh Sudhir Joglekar
5) Shri Sanjay Suresh Joshi
6) Shri Satish Vasant Salpekar
7) Col. Ash Bahadur Gurung
8) Shri Prafulla (kumar) Kale
9) Shri Avinash Ganpatra Shegaonkar
10) Shri Abhiram Deshmukh
Following persons were appointed as Co-opted
Administrators :
1) Mrs. Malini Mangesh Joshi
2) Dr. Ravindra Prabhakar Bhoyar
3) Shri Rajendra R. Deshmukh
4) Shri Nirbhay Shankarrao Bhandarkar
5) Shri Rajendra Manohar Dandekar
6) Mrs. Shalini Sanjay Arora
7) Shri Rohit Prakash Somalwar
8) Shri Tarun Devsi Patel
9) Shri Harshal Uddhav Aarvikar
10. This judgment and order of the learned Charity
Commissioner is impugned in this appeal.
11. It is to be noted that during the pendency of this
appeal, the learned Single Judge vide Order dated 20/06/2016
prohibited the trustees-administrators and co-opted
administrators appointed in the impugned judgment to take
any decision having financial implications until further order. It
is directed that if certain financial exigency to meet day to day
affairs and expenses arises, the Principal may disburse the
amount for that purpose and maintain the record to that effect.
12. During the pendency of this appeal the name of the
appellant No. 1 was deleted by an order dated 05/12/2016
and the appeal against respondent Nos. 9 and 10 abated since
they are reported to be dead.
13. Shri R.L. Khapre, learned Senior Counsel along
with Advocate Shri. M.M. Dhandekar appearing for the
appellants, at the outset, referred to Section 47 of the MPT Act
and submitted that there was no occasion before the learned
Joint Charity Commissioner to pass an order under Section 47
of the MPT Act. Learned Senior Counsel referred to various
provisions in the Articles of Association of the Sangha
alongside the provisions of the MPT Act and submitted that the
present case does not fall in any of the categories as set out in
Section 47 of the MPT Act. Learned Senior Counsel further
brought to the notice of this Court, the order of learned Deputy
Charity Commissioner dated 30/08/2007 in Change Report No.
1397/2005 and submitted that as per the operative part of this
Order the Committee of three recorded trustees had been
constituted and new members have been enrolled with
majority decision as per the rules and regulations of the
Sangha. As per the directions, elections were held and the
Administrative Body of 19 trustees as provided under Clause
49 of the Articles of Associations of the Sangha have been
constituted. The trustees available were competent to fill in
the vacancies.
14. Learned Senior Counsel further submitted that the
aforesaid order of the learned Deputy Charity Commissioner in
Change Report No. 1397/2005 came to be set aside to the
extent of clause 3 to 9 of the operative part in the Appeal No.
34/2007 vide order dated 07/02/2008 by the learned Joint
Charity Commissioner. However, the deletion of the names of
Dr. Karansingh Harisingh, Smt. Manjula Trivedi and Rajabhau
Kathote from Schedule-I have been confirmed.
15. This order of the learned Joint Charity
Commissioner was challenged in RAC No. 04/2008 before the
District Court, Nagpur. The point for consideration before the
learned District Judge was 'whether Deputy Charity
Commissioner has jurisdiction to issue directions in Change
Report proceedings under Section 22 of the MPT Act. The
learned District Judge answered it in the affirmative and
quashed and set aside the judgment and order of the learned
Joint Charity Commissioner and restored the judgment and
order of the learned Deputy Charity Commissioner.
16. It is further submitted that as per the directions of
the learned Deputy Charity Commissioner in the order dated
30/08/2007, a meeting was held on 10/02/2009 and the
committee of three members consisting of Shri Marwah, Shri
Goel and Shri Ghatate was constituted. The further meeting
was held on 17/02/2009 and the members were enrolled. As
directed, the Administrative Body was constituted through the
process of elections. Accordingly Change Report came to be
submitted by the reported Secretary Shri Ashwin Ghatate.
17. Learned Senior Counsel Shri Khapre pointed out
the relevant para of the impugned judgment and submitted
that the observation of the learned Joint Charity Commissioner
in Appeal No. 34/2007 as defacto president and defacto
trustee, relied on in the impugned judgement, has no force in
law as the same came to be quashed and set aside by the
learned District Court.
18. Learned Senior Counsel submitted that even though
the change reports were rejected, the fact remains that the
appellants are the trustees and their status as trustees cannot
be taken away. The enquiry under Section 47 of the MPT Act
results in a decree which decides the rights of the parties. The
question before the Joint Charity Commissioner was whether
the administration of the Sangha has rendered unworkable. It
is submitted that there are sufficient number of General Body
Members and administrator trustees and the same were
appointed after holding elections.
19. The learned Senior Counsel has the grievance that
the learned Joint Charity Commissioner in the impugned
proceedings committed serious error in not allowing the
appellants to lead evidence. The applications which were filed
by the appellants from time to time were erroneously not
decided and deferred to be decided along with Exh. No. 1.
Ultimately Exh. No. 1 was allowed and learned Joint Charity
Commissioner disposed of the pending applications being
rendered infructuous. The learned Senior Counsel also pointed
out an order dated 11/03/2016 below Exh. 52 wherein the
authority to manage the affairs of the Sangh including to
operate bank accounts was conferred on Smt. Alka Sahani and
Shri Ashwin Ghatate , which resulted in dislodging the rights of
the other trustees. Learned Senior Counsel also pointed out
the order below Exh. 57 thereby the learned Joint Charity
Commissioner erroneously stayed the meeting called on
20/02/2016 for election of administrators until the interim
order passed below the application Exh. 52.
20. Shri Khapre, learned Senior Counsel further raised
objection on the issuance of public notice calling objections
within 10 days. According to him, the public notice dated
05/04/2016 could not have been said to be a notice inviting
applications from interested persons. In response, 153
applications were received showing inclination to become
trustees. Out of these applications the trustees and co-opted
administrators came to be selected in gross violation of the
provisions of Articles of Association. Learned Senior Counsel
referred to provisions with regard to the Constitution of
Administrative Body and submitted that there is no quorum
provided as per Clause 79 and, therefore, the learned Joint
Charity Commissioner returned an erroneous finding that the
Sangha became unworkable. Learned Senior Counsel has a
grievance that while selecting the members of the
Administrative Body their credentials have not been verified.
None of them claim to be admitted as members on probation.
None of them say that they have completed probation. Entire
process adopted by the learned Joint Charity Commissioner is
against the bye-laws of the Sangha. It was also submitted that
the learned Joint Charity Commissioner did not conduct the
"enquiry" as contemplated by Rule 7 of the Maharashtra Public
Trusts Rules. In conclusion, Shri Khapre, learned Senior
Counsel submitted that the right to form an Association
includes the right to not be associated with somebody.
21. In support of his arguments, the Senior Counsel
relied on the following judgments :
(i) The Single Bench of this Court in the case of Dr. R.P.
Kapoor & ors. Vs. The Charity Commissioner, M.S. & ors.
reported in 1988 SCC Online Bom 279 observed that "the
appointment of the new trustees has to be made objectively by
finding the best suited public spirited persons and not just
choose one or more of the applicants/complainants. Record
clearly shows that the Charity Commissioner did not take any
steps in this regard. He has simply referred to the brief bio-
data of the applicants and appointed four of them as trustees.
This is certainly not a satisfactory manner in which the trustees
should be appointed."
(ii) The Single Bench of this Court in the case of Nawalchand
Champalal Chaudhari & anr. Vs. Joint Charity Commissioner,
Nagpur & anr. reported in 2007 (01) ALL MR 71, observed that
"-----the two rival groups were trying to gain the power in the
administration of Selu Shikshan Mandal. The controversy,
therefore, could not have been resolved under section 41-A by
the Assistant Charity Commissioner."
(iii) The judgment of the Single Bench of this Court in
the case of Ramkrushna-Appa s/o Vishweshwar-Appa & ors. Vs.
Krushna s/o Udaybhanji Ingale & ors. reported in 2005 (3)
Mh.L.J. 729, the relevant paragraph is reproduced below :
37. "Insofar as the third question is
concerned, from the record, it is clear that
before the First Managing Committee was
appointed by the Assistant Charity
Commissioner, no bio-data or consent of
the proposed Trustees was obtained.
Though Shri Khapre, the learned counsel
for the appellants, has tried to urge that
before the First Managing Committee was
appointed, there were deliberation and
discussions about the names of the
proposed Trustees, there is nothing on
record to substantiate the same. On the
contrary, it is clear from the operative
part of the order passed by the learned
Assistant Charity Commissioner that after
appointment of the First Managing
Committee, he has called for the bio-
datas and consents of the persons who
have been proposed to be appointed as
members of the First Managing
Committee. It is needless to state that
while appointing the members of the First
Managing Committee, the paramount
consideration that should weigh with the
learned Assistant Charity Commissioner,
is safeguarding the interest of the trust.
Fort that, it was necessary to appoint fit
persons with honesty and integrity. For
that, it is necessary for the learned
Charity Commissioner to have first
obtained the bio-datas and consents and
after examining the credentials of such
persons, to have appointed the members
of the First Managing Committee.
However, I find that the course adopted
by the learned Assistant Charity
Commissioner in first appointing the
members of the Committee and thereafter
calling for their bio-datas and consents, is
totally erroneous. In that view of the
matter the third question as to whether
the procedure adopted by the learned
Assistant Charity Commissioner with
respect to the appointment of the First
Managing Committee, is in accordance
with law, will have to be answered in the
negative."
(iv) The judgment of the Single Bench of this Court in
the case of Avinash Ganpatrao Shegaonkar & ors. Vs. Jayawant
@ Babasaheb s/o Vishwanath Uttarwar & ors. reported in 2010
(4) Mh.L.J. 253, the relevant paragraph is reproduced below :
9. "........ There is no specific provision in
the said section but then section certainly
contemplates an enquiry and enquiry, as stated
earlier, is nothing but an investigation and may
be short of a trial. Such enquiry is with a view
that the Charity Commissioner takes a decision
after verifying the correctness of the allegations
made in the application, suitability of persons
and if any other suitable persons are available.
The Charity Commissioner has to bear in mind
the provisions of sub-section (3) of section 47
also while holding an enquiry. Sub-section (3)
speaks of things which the Charity
Commissioner is supposed to take into account
while making an enquiry. Clause (d) of sub-
section (3) would make it clear that the Charity
Commissioner is supposed to consult the
persons interested and also the public
interested. The fact that the Charity
Commissioner is to consider the interest of the
public, who have interest in the Trust, shows
that the consultation with such persons is
absolutely necessary and this provision, to my
mind, suggests that a public notice must be
issued. The interest of the public can be
protected only if a notice is issued and public is
informed of such application having been made
and such vacancies having arisen."
22. Respondent Nos. 20 to 24 supported the appellants
even though they have been appointed as co-opted
administrators in the impugned judgment. It is their contention
that the other persons have not been appointed by the learned
Joint Charity Commissioner as per the Constitution of the
Sangha. Shri A.P. Thakare, learned counsel appearing on
behalf of respondent Nos. 20 to 23 adopted the arguments of
Shri Khapre learned Senior Counsel.
23. Shri S.P. Bhandarkar, learned counsel appearing on
behalf of respondent No. 24, while supporting the appellants
referred to Section 47 of the MPT Act, submitted that it is not a
general provision for the appointment of the trustees and the
appointments must be made in specific circumstances. Learned
Counsel construed the provision in a singular sense, as and
when the vacancy arises and it could not have been
misconstrued as to appoint a complete Administrative Body. In
the application under Section 47 of the MPT Act, there is
absolutely nothing as to how the circumstances as mentioned
under Section 47 of the MPT Act are present to invoke Section
47 of the MPT Act. It is further submitted that the learned
Joint Charity Commissioner ought to have examined the
history and the credentials of the members while making
appointments. In support of learned Senior Counsel relied on
the judgments of Single Bench of this Court in the case of
Pankaj Yashwant Chaudhari & ors. Vs. Joint Charity
Commissioner, Nashik reported in 2014 (4) Mh.L.J., wherein it
is held that upliftment and well being of the trust is paramount
consideration while making appointment of trustees and Joint
Charity Commissioner is expected to take care and to safeguard
interest of the trust. The relevant paras in the said judgment
are reproduced below :
20. Section 47(2) contemplate a hearing to be
given to the parties and making such enquiry as
the Jt.C.C. may deem fit, then he may appoint
any person as trustee. Sub-clause (3) of section
47 contemplate precautionary measures to be
taken for such exercise. Clause (a) deals with
wishes of the authors of that trust; clause (b)
speaks of wishes of the persons, if any,
empowered to appoint new trust; clause (c)
contemplate to the question, whether
appointment will promote or impede the
execution of the trust; clause (d), to the interest
of the public or section of public, who have
interest in the trust; clause (e), to the custom
and usage of the trust.
21. The Jt.C.C. did not advert and ponder
upon as to what made him to ensure that
appointment of new trustees was to promote
execution of the trust or that, it was in the
interest of the public or section of public, who
have interest in the trust. The persos to whom he
has nominated as trustees, brazenly indicate that
they are resident of Dhule, away from
Chimthane and they have no social linkage to
the trust or any sentimental attachment or any
past activity to promote the trust. Merely
branding by Arun to be a social worker would
not qualify him to gag rights of others in militant
manner.
25. The Jt.C.C. basically did not bother to
associate himself in tune with compliance of
section 47. He did not make requisite enquiry,
nor heard the parties. It was alleged Shri
Sandeep Dattatraya Mahale resides at Dhule and
a Municipal Corporator, he has no direct or
indirect association with trust. This has been
ignored from consideration. He wrongly
interpreted inervention application, to be not
maintainable and then went on appointing two
members from the said group as a forensic
bonanza. He did not assign any reasons for
appointment, even as President or Vice President
or Secretary or Executive members. (Respective
respondents in the appeal).
26. Taking stock of events, the order under
challenge branzenly demonstrate no efforts
whatsoever were made by the learned Jt.C.C. to
identify suitable persons for appointment as
trustees to avoid a frozen situation and stale-
mate.
The judgments i.e. 1) Shankarrao Sakharamji
Supare Vs. B.J. Loya, Joint Charity Commissioner & ors.
reported in 1997 (1) Mh.L.J. 193, and 2) Waman Vyankatesh
Deshpande (deceased) Y.S. Mashankar & ors. Vs. Atul
Pandurang Alshi (Dr.) & ors. reported in 2005(1) Mh.L.J.,
relied on by the learned Counsel Shri Bhandarkar are
distinguishable on facts and, therefore, we do not find it
necessary to take note of these judgments.
24. Shri C.S. Kaptan, learned Senior Counsel alongwith
Shri. U. A. Gosawi, the learned Counsel appearing on behalf of
respondent Nos. 8 and 26, at the outset, submitted that the
Change Reports filed were never accepted by the competent
Authority. There is nothing on record to show that the Sangha
was functioning in accordance with the Constitution of the
Sangha. The Administrative Body allegedly appointed as per
Order dated 30/08/2007 in C.R. No. 1397/2005 came to be
rejected vide Order dated 16/02/2019 in C.R. No. 219/2009.
25. Shri Kaptan, learned Senior Counsel further
submitted that as per alleged meeting held on 10/02/2009 and
17/02/2009, members were enrolled for three years, however,
whether they continued or not, the record for it is silent.
Therefore, at the time of filing of application under Section 47
of the MPT Act there were no trustees who were managing the
trust. It is further submitted that the directions under Section
47 of the MPT Act were necessary as Mr. Marwah, the alleged
President was not found suitable. It is further submitted that
when C.R. No. 219/2009 was rejected; the subsequent Change
Reports have to be rejected and, therefore, there cannot be
vacuum in the Sangha. In such circumstances, the learned Joint
Charity Commissioner has rightly exercised jurisdiction under
Section 47 of the MPT Act. It is his main contention that as per
meeting dated 17/02/2009, the body was constituted for three
years and thereafter there were no elections. While exercising
jurisdiction under Section 47 of the MPT Act, the prevailing
position has to be seen. On 30/04/2015, at the time of filing
application under Section 47 of the MPT Act, nothing was
pending before the Court. Learned Senior Counsel also
referred the report of the Inspector.
26. With regard to verification of the credentials, Shri
Kaptan, learned Senior Counsel submitted that at the fag end
of the proceedings, the applications for police verification was
filed and the same was rejected and there was no prayer for
leading evidence. Learned Senior Counsel also argued on
scope of Section 47 of the MPT Act and read out relevant
provisions from Articles of Association. In support of his
submission learned Senior Counsel relied on the judgment of
the Single Bench of this Court in the case of Jagatnarayansingh
Swarupsingh Chithere & ors. Vs. Swarupsingh Education
Society & anr. reported in 1980 Mh.L.J. 372. Learned Counsel
pointed out paragraph No. 11 of the said judgment wherein it
is held that the Court cannot ignore relevant subsequent
developments occurring during the pendency of appeal and
must, in the ends of justice, mould its order in the light thereof.
It was also submitted that as the appellants had given up their
challenge to the main proceedings as recorded in the roznama
dated 11/05/2015 that they had waived their right to
challenge the impugned order. Similarly it was urged that
respondent Nos. 20 to 24 could not be permitted to accept the
order insofar as they were appointed as co-opted
Administrators and challenge rest of the order.
27. Shri S.Y. Deopujari, learned Counsel appearing for
respondent Nos. 19 and 27 and Shri N.A. Gaikwad, learned
Counsel appearing for respondent No. 12 adopted the
arguments of Shri Kaptan, the learned Senior Counsel.
28. Shri Anand Jaiswal, the learned Senior Counsel
alongwith Mrs. Radhika Bajaj, learned Counsel appearing for
the respondent No. 18 referred to Section 47 of the MPT Act
and the provisions with regard to organization in the Articles of
Association and submitted that previous approval of the
President of the Sangha is necessary for filling the vacancies of
the trustees. For the administrative meeting, a quoram of 9
administrators is necessary. Learned Deputy Charity
Commissioner in his order dated 30/07/2007 has rightly
observed that there is no legally appointed President of the
Sangha. Learned Deputy Charity Commissioner rejected the
Presidentship of Dr. Marwah, as not being appointed in
accordance with the Rules and Regulations of the Sangha and
in the absence of the President no action for the appointment
of the Administrative Body could have been taken. Section 47
of MPT Act is the only remedy. He referred to various Articles
of Association to urge that administration of the Trust was not
possible for want of requisite quorum. Lastly, Shri Jaiswal,
learned Senior Counsel submitted that proceedings under
Section 47 of the MPT Act are in the nature of an enquiry and
not a complete trial requiring evidence to be led. It does not
decide the inter se rights of the parties. The ultimate aim is to
see the interest of the Trust.
Two points arise for the determination of this
Court:
"(a) Whether the Joint Charity Commissioner is
justified in passing the order under Section 47 of
The Maharashtra Public Trusts Act, 1950?
(b) If yes, whether the administrative body,
constituted by the Joint Charity Commissioner, is
in accordance with law and the bye-laws of the
Trust?"
29. We have carefully considered the submissions made
by learned Senior Counsel Shri Khapre, learned Counsel Shri
Thakre and Shri Bhandarkar on one side and the learned
Senior Counsel Shri Kaptan and Shri Anand Jaiswal as well as
Shri. Anand Parchure, Shri S.Y. Deopujari, Shri. V. V. Bhandade,
Shri. Gaikwad, learned Counsel and the learned AGP Ms. Khan
on the other side. We have also scrutinized the record minutely.
Though learned Counsel for the parties have referred to various
decisions reference is being made to those decisions that are
found relevant to the facts of the present case.
Before proceeding to discuss the justifiability of the
exercise of jurisdiction under Section 47 of the MPT Act, it
would be advantageous to look into the said provision. For
ready reference, it is reproduced below:
"47. Power of Charity Commissioner to appoint,
suspend, remove or discharge trustees and to
vest property to new trustees
(1) Any person interested in a public trust may
apply to the Charity Commissioner for the
appointment of a new trustee, where there is not
trustee for such trust or the trust cannot be
administered until the vacancy is filed, or for the
suspension, removal or discharge of a trustee,
when a trustee of such trust, -
(a) disclaims or dies;
(b) is for a continuous period of six months
absent from India without the leave of the
Charity Commissioner or the Deputy or Assistant
Charity Commissioner or the officer authorised
by the State Government in this behalf;
(c) leaves India for the purpose of residing
abroad;
(d) is declared as insolvent;
(e) desires to be discharged from the trust;
(f) refuses to act as a trustee;
(g) becomes in the opinion of the Charity
Commissioner unfit or physically incapable to act
in the trust or accepts a position which is
inconsistent with the position as trustee;
(h) in any of the cases mentioned in
Chapter III, is not available to administer the
trust; or
(i) is convicted of an offence punishable
under this Act or an offence involving moral
turpitude.
(2) The Charity Commissioner may, after hearing
the parties and making such enquiry as he may
deem fit, by order appoint any person as a
trustee or may also remove or discharge any
trustee for any of the reasons specified in sub-
section (1).
(3) In appointing a trustee under sub-section (2),
the Charity Commissioner shall have regard -
(a) to the wishes of the author of that trust;
(b) to the wishes of the persons, if any,
empowered to appoint a new trustee;
(c) to the question whether the
appointment will promote or impede the
execution of the trust;
(d) to the interest of the public or the
section of the public who have interest in the
trust; and
(e) to the custom and usage of the trust.
(4) It shall be lawful for the Charity
Commissioner upon making any order appointing
to a new trustee under sub-section (2) either by
the same or by any subsequent order to direct
that any property subject to the trust shall vest in
the person so appointed and thereupon it shall so
vest.
(5) An appeal shall lie to the Court against the
order of Charity Commissioner under sub-section
(2), as if such order was a decree of a district
court as a court of original jurisdiction from
which an appeal lies, within sixty days from the
date of the order, which shall otherwise be final."
30. A plain reading of the aforesaid provision would
reveal that it is applicable in the specific circumstances set out
therein. Sub-Section (1) of Section 47 relates to the filing of
an application by any person interested in the trust for the
appointment of a new trustee when there is no trustee for such
trust or to fill up the vacancy in a situation the trust cannot be
administered until the vacancy is filled up, or for the
suspension, removal or discharge of a trustee for any of the
reasons specified therein.
Sub-section (2) of Section 47 relates to the powers
of the Charity Commissioner to appoint any person as a
trustee, or discharge or remove any trustee for any of the
reasons specified in sub-section (1). While doing so, it enjoins
duty upon the Charity Commissioner to hear the parties and
make such an enquiry as he deems fit.
Sub-section (3) of Section 47 further requires the
Charity Commissioner, while appointing a Trustee, to take into
consideration the wishes of the author of that Trust, and also
the wishes of the persons, if any, empowered to appoint a new
Trustee and to consider other factors as mentioned in clauses
(c), (d) and (e).
Sub-section (4) of Section 47 empowers the Charity
Commissioner to issue directions with regard to vesting of
property of the trust in the person so appointed.
Sub-section (5) of Section 47 provides for appeal
against the order of the Charity Commissioner, as if such order
was a decree of a District Court, within sixty days from the date
of order.
Section 47 of the MPT Act is a complete code in
itself which provides for the filing of the application, hearing of
the parties, conducting enquiry, passing of order, appeal against
the order, appellate authority and the period of limitation for
filing the appeal. Order is elevated to the status of a decree.
The term 'decree' as per Section 2(2) the Code of Civil
Procedure, 1908 means the formal expression of an
adjudication which, so far as regards the Court expressing it,
conclusively determines the rights of the parties with regard to
all or any of the matters in controversy in the suit.
31. A learned Single Judge in the case of Gyandeo
Tukaram Devre & ors. Vs. Ganpat Nathu Devre and ors. in 1995
(1) Mh.L.J. 99, while considering the scope of power of the
Charity Commissioner, has held that Section 47 of the MPT Act
does not confer any general power on the Charity
Commissioner to appoint new trustees. Power under Section 47
of the MPT Act can be exercised only in cases specifically
covered under the section.
So also another learned Single Judge in the case of
Douglas Memorial Children Home, Nagpur and ors. Vs. Joint
Charity Commissioner, Nagpur decided on 17/06/2013 in First
Appeal No. 1202/2012, while considering the scope of Section
47 of the MPT Act held that Section 47 is an independent
proceeding and with a definite object of not allowing the trust
to go without being administered properly and in accordance
with law and in the peculiar circumstances mentioned in the
said section.
32. There is absolutely no dispute with respect to the
aforesaid propositions of the law. In the instant case, as per the
inspection report of the Enquiry Officer, in Enquiry No. 6/2015,
the names of following Trustees were found recorded on
Schedule-I on the record of the office of the Joint Charity
Commissioner, Nagpur vide order of Assistant Charity
Commissioner dated 28/01/1992 in Enquiry No. 926/1991.
1) Dr. Karansingh Harisingh, President
2) Shri Indra Tripathi, Vice-President
3) Manjula C. Trivedi, Honorary Chief Minister
4) Smt. Alka Sahani, Honorary Assistant Minister
5) Shri Harigopal Goel, Member
6) Smt. Swaraj Goel, Member
7) Smt. Kusum Sutariya, Member
8) Shri Ashwin K. Ghatate, Member
9) Shri Rajabhau Kachhote, Member
10) Shri R.S. Pandit, Member
11) Dr. Vikram Marwah, Member
33. In the present case, as per record, the Trust is
registered under the MPT Act in the year 1992, and the Joint
Charity Commissioner in the impugned judgment has observed
that there is no clarification as to what was the position of the
Board of Trustees from 1992-2009.
34. The learned Deputy Charity Commissioner while
rejecting Change Report No. 1397/2005 which was filed by Dr.
Vikram Marwah, to the extent of induction of co-opted
administrators from Sr. Nos. 9 to 18 as per meeting held on
02/10/2005, in para 67 of the judgment dated 30/08/2007
observed that in the absence of original record in respect of the
election of the President, it cannot be said that Dr. Marwah
was elected as the President of the Sangha. It is further
observed that the erstwhile founder President Dr. Karan Singh
tendered his resignation in the year 2004, then how could Dr.
Marwah was elected as a President in the year 2001, as there
was no vacancy. In para 80, it is further observed that since the
election for the post of the President has been held contrary to
the provisions of the bye-laws, his further activities i.e. to
appoint co-opted administrators at Sr. Nos. 9 to 18, in the
absence of conferring them general membership in terms of the
bye-laws and in the absence of issuing valid notice of the
meeting to the recorded trustees, are bad in law. The learned
Deputy Charity Commissioner in the operative part of his
judgment issued certain directions which are reproduced
below:
"(i) The names of outgoing trustees 1) Dr.
Karan singh Hari Singh 2) Smt. Manjula Trivedi
3) Shri Rambhau Kachote be deleted from the
Schedule-I.
(ii) The rest of the Change reported is hereby
rejected. The entries in Schedule-I except
deletion of the names of above recorded
trustees/outgoing trustees shall be intact.
(iii) The Recorded Trustees on Schedule-I are
directed, to enroll new members in the
trust/society as per existing Rules and
Regulations of the trust/society by majority
decision.
(iv) The Recorded Trustees may constitute
committee of three members from the recorded
trustees on Schedule-I including recorded trustee
Dr. Vikram Marwah and may enroll new
members with majority decision as per Rules and
Regulation of the Trust/Society.
(v) The recorded Trustees are hereby directed
to hold the election of executive
body/administrative body of 19 trustees of the
trust/society, after enrollment of new members
as early as possible, as provided under clause no.
49 of the Article of Association at Page No. 28 of
the Trust/Society.
(vi) The elected executive body of the
trust/society is directed to file scheme
proceedings for proper Rules and Regulations of
the Trust/Society without changing the Aims and
Objects of the trust/society as the present Rules
and Regulations are not providing proper
procedure and not useful in various aspects and
not workable.
(vii) The Recorded Trustees shall not take policy
decision, without prior permission of this
Authority till election of new executive body is
held, which will affect the Aims and Objects of
the Trust/Society.
(viii) The Recorded Trustees on Schedule-I or if
committee is constituted for enrollment of new
members as per directions No. 4 of this order
may preferably consider the application of
membership of persons namely -
1) Shri K.N. Nandiyal
2) Dr. Radhika Marwah
3) Shri Chandrakant Ragit
4) Dr. Sanjay Dachewar
5) Shri Jagjit Singh
6) Shri Deepak Arora
7) Shri S.P. Singh
8) Shri Ravi Bhargaw
9) Shri Ashok Mohata
10) Shri Madan Kapare
If at all they submitted the application for
enrollment of membership, with majority
decision. Since the above named persons are the
devotees and helpers of the trust/society and
sufficient material is placed on record in that
respect in the present Change Report.
(ix) Parties to bear their own costs."
It is not in dispute that this judgment of the learned
Deputy Charity Commissioner reached finality.
35. Admittedly, presently the surviving recorded
trustees-administrators are Smt. Alka Sahani, Shri Ashwin
Ghatate and Shri Indra Tripathi. As per record Shri Indra
Tripathi has lost interest in the activities of the Sangha. In the
present proceeding he preferred not to appear despite due
service to him. There are allegations of mismanagement and
misappropriation of funds of the Sangha against both the
aforesaid surviving recorded trustees-administrators.
In addition, the selection of Mr. Marwah as a
President in the meeting of 2001, as stated above, has been
held to be illegal. Since the order passed by the learned
Deputy Charity Commissioner dated 30/08/2007 directed the
recorded trustees to enroll new members and undertake
further steps on the basis of the existing Rules and Regulations
of the Trust, the provisions of the unamended Constitution of
the Trust will have to be taken into consideration. A perusal of
the Articles of Association would reflect that the President of
the Trust is the Supreme Authority followed by the trustees. In
some matters, the President has been conferred with the veto
powers. The relevant provisions are quoted hereunder :
As per Clause "3(d)(II) "President" shall mean
the Founder-President, and subsequently, the
person nominated by him for the succession to
himself or, in the absence of such nomination,
the person who is occupying that position by
virtue of selection thereto by the Administrative
Body of the Society or otherwise, in accordance
with the provisions contained in the Articles of
Association."
Clause 10 (VIII) provides for CLASSES OF
MEMBERS of the Sangha -
(1) Ordinary members;
(2) Fellows and Probationers; and
(3) Trustees and co-opted Administrators.
Clause 11(IX) is with regard to eligibility for
ORDINARY MEMBERS -
"Every adult person, who believes in and accepts
the Aims and Objects and the methods of work of
the Sangha, desires to co-operate and serve
towards their achievement and signs the Sangha's
ordinary pledge shall be eligible for ordinary
membership in and of the Sangha."
Article XIII - FELLOWS AND PROBATIONERS -
29. "Those members who dedicate and conseerate
themselves for the rest of their lives or for a period
not less than ...... years to the single-minded
service of Dharma and Bharata Varsha under the
guidance and control of the Sangha, sign the
special pledge prescribed for the purpose and take
only such subsistence allowance and other
conveniences and may be allowed by the Society,
shall be FELLOWS of the Sangha.
30. XXXX
31. Every member who has been accepted for
Fellowship shall be required to undergo a course of
special training for 2 years. During this period, he
will be known as a PROBATIONER of the Sangha.
32. XXXX
33. When a Probationer has completed his two
years' discipline to the satisfaction of the President,
he shall be styled a FELLOW of the Sangha."
Article XIV - THE ADMINISTRATIVE BODY -
40. The Administrative Body of the Sangha shall
consist of two classes of Administrators:-
(1) The Trustee-Administrators for the time-being;
and
(2) The Co-opted Administrators for the time-
being.
41. The first Trustees of the Sangha shall be
those who figure as such hereunder and as the
signatories to the Memorandum of Association.
42. Every person whom the Trustee-
Administrators may co-opt for the purpose shall be
co-opted Administrator for the period which they
have co-opted him for, provided that, for the
purposes of the Sangha's record, he gives his
consent in writing to act as such for the period so
fixed by the Trustees as aforesaid.
43. Every person, who, under these Articles,
becomes a Trustee of the Sangha shall be and is
hereinafter called a Trustee-Administrator or
simply a trustee; and every person who becomes an
Administrator by virtue of co-option by the
Trustees shall be and is hereinafter called a co-
opted Administrator.
44. And the whole body (including both kinds of
Administrators) shall be and is hereinafter called
the Administrative Body or the Board of
Administrators or simply the Administrators.
45. The Administrative Body shall, normally,
consist of 19 Administrators (including the
Trustees) and shall include representatives of both
sexes.
Article XV - MODE OF NOMINATION, SELECTION
ETC. -
46. "All eminent Helpers and Workers who are
otherwise eligible for membership and are actual
members and who evince special fitness for
Administrator ship by virtue of their spiritual and
other qualifications and by their actual service of
Humanity shall be eligible for co-option as
Administrators and also for Selection as Trustees.
47. The first Members thereof shall be those who
have been mentioned as such in the Memorandum
of Association.
48. The Administrators shall, ordinarily, hold
office for 3 years, after which they shall be eligible
for re-nomination.
49. At every fourth Annual General Meeting, the
non-Trustee Administrators shall retire; and the
vacancies thus caused shall be filled up - by re-
nominations or by fresh nominations or both - by
the President and the other Trustees from amongst
the Fellows or Probationers or other members of
the Sangha.
50. Any vacancy caused in the Administrative
Body otherwise than by triennial retirement (under
the immediately preceding clause No. 49) shall be
filled up by the remaining members of the
Administrative Body by co-option, with the
President's previous approval from amongst the
fellows, probationers or other members of the
Sangha.
51. Any Administration who has resigned from
Administrator ship shall continue in office until his
resignation is accepted and his successor is
appointed and actually takes over charge.
52. If an Administrator be absent from four
consecutive Meetings of the Administrative Board
without sufficient cause and without the President's
leave, he shall cease to be an Administrator. His
cessation from Administrator ship shall, however,
be formally recorded by means of a Resolution for
the purposes of the Sangha's Record.
53. And his place shall be filled up by the
remaining Administrators with the approval and
consent of the President.
54. In case of death or resignation of any
Administrator, the vacancy so caused shall similarly
be filled up by the remaining Administrators with
the President's approval and consent.
55. If, at any ordinary or special general meeting
summoned by the Administrative Body itself (or by
the required number of requisitionists (under
clauses No. 20 & 21), any resolution is moved by
way of disapproval or condemnation of any act or
conduct of anyone or more of the Administrators
and for his or their expulsion, it shall be passed
only by a majority consisting of three-fourths of the
members present (personally or by proxy) at such
meeting and voting on the question in question.
56. In case of such condemnation and dismissal
from office, such member or members shall
immediately cease to hold office.
57. And the President and other Administrators
present at such meeting shall nominate a new
member or members in his or their place.
58. In all these cases, other qualifications being
equal, priority at such meeting shall nominate a
new member or members in his or their place.
59. The number of Administrators shall never be
less than ten (including both sexes)."
Article XVIII - TRUSTEES -
77. "XXXX
78. The Founder-President shall be competent to
fill up any vacancy caused by death, resignation,
retirement or incapacity etc. of any trustee-
administrator.
79. Subsequent appointments of trustees shall be
made by the then President and the other trustees
by a majority of votes at a meeting specially
convened for this purpose.
80. The opinion, discretion and direction of the
Trustee Administrators for the time being shall
prevail over the resolutions of the Administrative
Body when such opinion, discretion and direction
is recorded by the hands and over the signatures of
the trustee-administrators."
36. Perusal of the Articles of Association of the Trust
indicates that as per Article VII the work of the Sangha has to
be carried out by the general body, the Fellows and
Probationers, the Administrative Body comprising of the
President, other trustees and co-opted Administrators. As per
Article XIV the Administrative Body shall consist of Trustee-
Administrators and co-opted Administrators. As per clause 45
thereof, the Administrative Body shall normally consist of
nineteen Administrators. Under Article XV clause 48, the
Administrators shall hold office for a period of three years. The
vacancies occurring thereafter have to be filled in under clause
49 by the President and other trustees. As per clause 59 the
number of Administrators can never be less than ten. By virtue
of clause 66 the Sangha, its properties and its affairs shall be
under the full administrative control and management of the
Administrative Body. Under Article XVII clause 68, the
Administrators have to hold their meetings atleast once a
month. As per clause 72, nine members of the Administrative
Body including the President shall form the quorum for its
meetings. Pertinently, as per Article XVIII clause 78 the
Founder President is competent to fill up any vacancy caused
by death, resignation, etc. of any trustee-Administrator. Under
clause 79, all subsequent appointments of trustees are to
be made by the then President and other trustees by a majority
of votes at a meeting constituted for this purpose.
The aforesaid provisions thus indicate the necessity
of a validly constituted Administrative Body for properly
administering the Trust. The properties of the Trust vest with
the Administrative Body and it also exercises full administrative
control over the Trust. A quorum of nine members of the
Administrative Body has been prescribed for its meetings. The
facts on record however indicate that presently there are only
three trustee-Administrators, out of whom Shri Indra Tripathi
appears to have lost interest in the affairs of the Trust. There is
also a cloud over the appointment/selection of Dr. Vikram
Marwah as the President as held by the learned Deputy Charity
Commissioner, the same not being in accordance with the
Articles of Association. These aspects have been taken into
consideration by the learned Joint Charity Commissioner while
answering Point No.1 in the impugned order. The report of the
Inspector at Exhibit 18 indicates the prevailing position as
regards the affairs of the Trust and it also indicates the fact that
in the absence of a valid and properly constituted
Administrative Body, the affairs of the Trust cannot be smoothly
conducted.
In this backdrop, therefore, we are satisfied that in
the absence of a validly constituted Administrative Body as
contemplated by the Articles of Association the exercise of
jurisdiction under Section 47(1) and (2) of the MPT Act by the
learned Joint Charity Commissioner was warranted. In the
facts of the present case such jurisdiction has been rightly
exercised by the learned Joint Charity Commissioner.
37. The learned Counsel appearing on behalf of both
the sides tried to persuade this court the interpretation of
Section 47 of the MPT Act in diverse ways. From a plain
reading of Section 47, it is clear that any interested person in a
Public Trust may apply to the Charity Commissioner for the
appointment of a new Trustee, where there is no trustee for
such trust or the trust cannot be administered until the vacancy
is filled. The Bombay High Court in the case of Gyandeo
Tukaram Devre (supra) held that Section 47 is not a general
provision and has to be invoked in the specific circumstances.
In the instant case, in our considered view, the occasion has
arisen for the Joint Charity Commissioner to exercise
jurisdiction. Evidently, Schedule-I in the office of Joint Charity
Commissioner reflects the names of Trustees and co-opted
Administrators who were appointed in the year 1992. The
record is absolutely silent with regard to the position from
1992 to 2005. The Change Report which was filed by Dr.
Marwah in 2005, came to be rejected in C.R. No. 1397/2005
vide order dated 30/08/2007 and the same reached finality.
The selection of Shri Marwah as a President was held to be
invalid. Certain directions were issued in the operative part
(supra) of the said Judgment. The appellants state that, as per
the said directions, the Administrative Body was constituted
and the Change Report No. 219/2009 came to be submitted.
However, as per record, Change Report No. 219/2009 also
came to be rejected by the Assistant Charity Commissioner,
Nagpur on the ground that the appointments were not made as
per directions in the order dated 30/08/2007 in Change Report
No.1397/2005. Subsequent Change Reports also came to be
rejected. In such circumstances, it was indispensable for the
learned Joint Charity Commissioner to invoke Section 47 and
to appoint a regular body for the proper functioning of the
Sangha in accordance with its Articles of Association. The
provision cannot be read in a singular sense, as suggested by
Shri Bhandarkar, learned Counsel. The central idea is to see
that the administration of the Trust shall not become
unworkable.
38. To consider this aspect from another angle, with
regard to the role of the Charity Commissioner in discharging
the duties, powers and functions under the M.P.T. Act, the Apex
Court in the case of Saiyad Mohammad Bakar El-Edroos
(Dead) By LRs. Vs. Abdulhabib Hasan Arab, reported in (1998)
4 SCC 343 held that the object of the Bombay Public Trusts Act,
1950 as revealed through its preamble is to regulate and make
better provisions of the administration of public, religious and
charitable trusts within the State of Maharashtra. The Charity
Commissioner is appointed through a notification under
Section 3 having very wide powers and duties conferred
primarily under Section 69 Chapter VII and other provisions of
the Act. It has been the concern of legislatures to provide with
such laws and entrust officers with such power to regulate,
supervise the management and functioning of a public trust
and endowment in a manner so as to give optimum benefit to
the public at large. Section 41-A empowers him to issue
directions for proper administration of the trust and institute
inquiries on receipt of complaints under Section 41-B. He can
suspend, remove or dismiss any trustee of a public trust on
receipt of report under Section 41-B. Any person interested in a
public trust may apply to the Charity Commissioner under
Section 47 for the appointment of a new trustee etc. The
Charity Commissioner is crowned with very wide powers to
check and control the irregularities, malpractices and
misconduct in the functioning of any public trust. Also, to
supervise, regulate, settle a scheme for the proper management
or administration of a public trust, in fact involved in almost
every step of the functioning of a public trust.
39. The Division Bench of this Court after considering
the scheme of the MPT Act and the role assigned to the Charity
Commissioner, in the case of Vanmala Manoharrao Kamdi
(supra) held that the function of the Charity Commissioner
while acting under the provisions of the Act is administrative,
judicial as well as quasi-judicial and even that he acts as a
watchdog and a delegate of the Government for
superintendence and control over the Public Trusts.
40. A Full Bench of this Court in the case of Sailesh
Developers Vs. Joint Charity Commissioner, 2007 SCC OnLine
Bom 124 while interpreting scope of the powers of the Charity
Commissioner under Section 36 of the Act, considered the
whole gamut of the powers of the Charity Commissioner to act
in the interest, for the benefit, and to protect the Trust property
held that while exercising powers under Section 36 of the Act,
the Charity Commissioner has to safeguard the interests of the
Trust as well as the interests of beneficiaries.
41. Considering the dictum as expounded in the
aforesaid judgments with regard to the role assigned to the
Charity Commissioner and the extent of his powers, duties and
responsibilities, being the watchdog and parens patriae
Authority, in our considered view, in the case in hand, the
learned Authority has correctly invoked jurisdiction under
Section 47 of the MPT Act, in the circumstances discussed
above keeping in view the interests of the Trust. Though it was
urged by Shri Kaptan, learned Senior Counsel that the
appellants had refused to contest the main proceedings on
merit in view of what was recorded in the roznama on
18/05/2016, we are not in a position to accept that contention
in the light of contents of pursis dated 17/05/2016 filed by the
appellants. The appellants did not give up their right to
contest the main proceedings. The first point stands answered
accordingly.
42. With regard to the applicability of the modified
Articles of Association of the Sangha, as urged by the
appellants, it is significant to note here that the alleged
modifications ought not to have been taken into consideration
and the Sangha could not have been governed as per the
modified Articles in the absence of its sanctity, not being
amended by the validly appointed body. Moreover, as per the
order passed by the learned Deputy Charity Commissioner on
30/08/2007 further exercise was directed to be undertaken as
per the existing Rules and Regulations of the Trust.
43. Now, the next question before us is whether the
Administrative Body as constituted under the impugned
judgment is valid as per the Articles of Association. For
exercising jurisdiction under Section 47 of the MPT Act it is
expected that the learned Joint Charity Commissioner shall
conduct an enquiry and shall extend proper opportunity of
hearing to the parties, especially when the issue is seriously
contested by the rival parties. A perusal of the impugned
judgment does not reflect as to what kind of enquiry, the
learned Joint Charity Commissioner has conducted. It is the
grievance of the appellants and which appears to be valid that
the applications which were filed on behalf of the appellants
during the proceeding before the learned Joint Charity
Commissioner were not decided and kept pending to be
decided along with main application below Exh. 1 and
ultimately all the applications were disposed of being rendered
infructuous. Furthermore, in the enquiry wherein the decision
to appoint or to remove a trustee is to be taken, in cases
wherein disputed questions of facts have been pleaded, it is
incumbent on the part of the adjudicating Authority to give an
opportunity to the parties to lead an evidence, if they so desire.
44. A careful reading of Section 47(2) of the MPT Act
would indicate that the provision is mandatory. This is in view
of the nature of decision which is required to be taken after
considering the disputed questions of facts involved. Moreover,
the adjudication after such exercise is construed as an
appealable decree and hence an enquiry in the nature of an
adjudication which decides the rights of the parties, wherever
necessary shall be conducted while appointing, removing or
discharging the trustee. The prime object is to safeguard the
interest of the trust.
45. Notably, a perusal of the rules and regulations of
the Sangha for the appointment of Trustees and co-opted
Administrators would indicate that, the trustees and the co-
opted administrators have to be appointed from amongst
members, probationers and fellow-members. The eligibility
criteria for ordinary membership of the Sangha is provided in
Clause 11 (supra) in the Articles. There is absolutely nothing in
the impugned judgment as to whether the members who have
been selected as Trustees and co-opted Administrators, are
eligible as per the rules and regulations. Clause 58 (supra) of
the Article XV specifically provides that for nomination and
selection of Trustees and co-opted Administrators, the priority
and preference shall normally be given to the Classes of
Members described in Clause No. 39 and 46 (supra). Clause
39 states that other qualifications being equal, the Fellows of
the Sangha shall have natural priority and shall receive
preference in respect of selection to administratorship,
trusteeship and so on. Clause 46 provides that "All eminent
Helpers and Workers who are otherwise eligible for
membership and are actual members and who evince special
fitness for Administratorship by virtue of their spiritual and
other qualifications and by their actual service of Humanity
shall be eligible for co-option as Administrators and also for
Selection as Trustees."
46. Clause 50 (supra) of Article XV provides that any
vacancy caused in the Administrative Body otherwise than by
triennial retirement shall be filled up by the remaining
members of the Administrative Body by co-option, with the
President's previous approval from amongst the fellows,
probationers or other members of the Sangha. As stated above,
many of the clauses in the Articles mandate for approval of the
President especially for filling up the vacancies of Trustees and
co-opted Administrators. In the absence of the President of the
Sangha, the Administrative Body is handicapped to take the
final decisions for the nomination and selection of Trustees and
co-opted Administrators in case of vacancies.
47. Furthermore, Section 47(3) of the MPT Act
necessitates the Charity Commissioner, while appointing a
Trustee under sub-section (2), to have regard to -
(a) to the wishes of the author of that trust;
(b) to the wishes of the persons, if any, empowered
to appoint a new trustee;
(c) to the question whether the appointment will
promote or impede the execution of the trust;
(d) to the interest of the public or the section of the
public who have interest in the trust; and
(e) to the custom and usage of the trust.
48. There is nothing in the impugned judgment which
would demonstrate that the learned Joint Charity
Commissioner did consider the factors mentioned in Section
47(3) of the MPT Act. In para 19 of the impugned judgment,
the learned Joint Charity Commissioner recorded reasons for
appointment of original recorded Trustees Smt. Alka Sahani
(original applicant No. 1/respondent No. 1) and Shri Ashwin
Ghatate (original non-applicant No. 1/respondent No. 8).
However, for the other appointees, there is absolutely nothing
in the impugned judgment as to the consideration of the
eligibility criteria as per the bye-laws and the verification of the
credentials of the proposed members of the Administrative
Body. Learned Authority without considering the objections
raised by the appellants from time to time during the
proceedings, adopted a short cut method and without
application of mind postponed the decision on the said
applications to be decided along with Exh. 1. Had it been
considered at the relevant time, the irregularities which we
could notice in the impugned judgment could have been
avoided.
49. Section 47 of the MPT Act enjoins powers on the
Charity Commissioner to appoint Trustees whenever there is a
vacancy in the circumstances provided therein. With great
power comes greater responsibility. It is highly expected to
respect the power conferred. It appears that the learned Joint
Charity Commissioner without realizing the nature and gravity
of the responsibility involved in appointing the Administrative
Body, without verifying the credentials and without recording
sufficient reasons in the judgment with regard to the
appointment of each of the members of the Administrative
Body, in a cryptic, inexplicable and incomprehensible way
constituted the Administrative Body. This part of the order of
the learned Joint Charity Commissioner cannot be sustained
and is liable to be set aside. The judgment relied on by Shri
Khapre, learned Senior Counsel and Shri Bhandarkar, learned
counsel, in the case of R.P. Kapoor (supra) is squarely
applicable to the facts of this case i.e. " the appointment of the
new trustees has to be made objectively by finding the best
suited public spirited persons and not just choose one or more
of the applicants/complainants. Record clearly shows that the
Charity Commissioner did not take any steps in this regard. He
has simply referred to the brief bio-data of the applicants and
appointed four of them as trustees. This is certainly not a
satisfactory manner in which the trustees should be
appointed."
50. Furthermore, in the case of Swaran Lata Ghosh Vs.
H.K. Banerjee reported in (1969) 1 SCC 709 at page 711, the
Hon'ble Apex Court while considering the issue of importance
of recording reasons in the judgment which is appealable, in
para 6 has held as under :
"6. Trial of a civil dispute in court is intended
to achieve, according to law and the procedure
of the court, a judicial determination between
the contesting parties of the matter in
controversy. Opportunity to the parties
interested in the dispute to present their
respective cases on questions of law as well as
fact, ascertainment of facts by means of
evidence tendered by the parties, and
adjudication by a reasoned judgment of the
dispute upon a finding on the facts in
controversy and application of the law to the
facts found, are essential attributes of a judicial
trial. In a judicial trial, the Judge not only must
reach a conclusion which he regards as just,
but, unless otherwise permitted, by the practice
of the court or by law, he must record the
ultimate mental process leading from the
dispute to its solution. A judicial determination
of a disputed claim where substantial questions
of law or fact arise is satisfactorily reached,
only if it be supported by the most cogent
reasons that suggest themselves to the Judge a
mere order deciding the matter in dispute not
supported by reasons is no judgment at all.
Recording of reasons in support of a decision of
a disputed claim serves more purposes than
one. It is intended to ensure that the decision is
not the result of whim or fancy, but of a judicial
approach to the matter in contest: it is also
intended to ensure adjudication of the matter
according to law and the procedure established
by law. A party to the dispute is ordinarily
entitled to know the grounds on which the
court has decided against him, and more so,
when the judgment is subject to appeal. The
appellate court will then have adequate
material on which it may determine whether
the facts are properly ascertained, the law has
been correctly applied and the resultant
decision is just. It is unfortunate that the
learned trial Judge has recorded no reasons in
support of his conclusion, and the High Court in
appeal merely recorded that they thought that
the plaintiff had sufficiently proved the case in
the plaint."
51. As stated earlier, Section 47 of the MPT Act is a
complete code in itself which provides for the filing of the
application, hearing of the parties, conducting enquiry, passing
of order, appeal against the order and the period of limitation
for filing the appeal. Order is elevated to the status of a
decree. The term 'decree' as per Section 2(2) the Code of Civil
Procedure, 1908 means the formal expression of an
adjudication which, so far as regards the Court expressing it,
conclusively determines the rights of the parties with regard to
all or any of the matters in controversy in the suit.
52. In the instant case, the text and the context of
Section 47 contemplate the learned Authority to adjudicate
the rights and status of the parties before it. It must hear the
parties fully and adjudicate the lis between the parties by
recording sufficient reasons, the order being appealable.
53. There is absolutely no discussion in the impugned
judgment that the learned Joint Charity Commissioner has
examined the eligibility criteria for the membership as stated in
the bye-laws of the Sangha. The learned Authority has failed
to follow the procedure as contemplated under Section 47 of
the MPT Act. The impugned judgment does not demonstrate
that the Authority has followed the provisions of either Section
47(2) or Section 47(3) of the MPT Act in letter and spirit. It is
a settled principle of law that where a power is given to do a
certain thing in a certain manner, the thing must be done in
that way or not at all. (Dhanajaya Reddy v. State of Karnataka,
(2001) 4 SCC 9). The second point is answered accordingly.
54. For the foregoing reasons, in our considered view
while upholding the exercise of jurisdiction by the learned
Joint Charity Commissioner under Section 47 of the MPT Act,
the matter needs to be remanded back for re-consideration of
the question with regard to constitution of the Administrative
Body strictly in accordance with the Articles of Association of
the Sangha by complying with the mandate of Sections 47(2)
and (3) of the MPT Act. To that extent the impugned order
deserves to be interfered with.
ORDER
1. The First Appeal is partly allowed.
2. The judgment dated 19/05/2016 in Application No.
74/2015 passed by the learned Joint Charity
Commissioner to the extent the Administrative
Body has been constituted and further directions
that have been issued is quashed and set aside.
3. While upholding the judgment to the extent
jurisdiction under Section 47 is invoked, the
proceedings are remanded for re-constitution of the
Administrative Body in accordance with the
mandate of the Articles of Association of the
Sangha by calling fresh applications (not
objections) from the public by issuing a valid and
widely circulated public notice and after conducting
fresh enquiry as contemplated under Section 47(2)
of the MPT Act and having due regards to the
factors as provided under Section 47(3) of the MPT
Act.
4. In the meantime, the present interim arrangement
in terms of the orders dated 20/06/2016 and
05/12/2019 passed in the First Appeal shall
continue to operate.
5. The proceedings be disposed of expeditiously
preferably within a period of six months from the
date of appearance of parties before the learned
Joint Charity Commissioner, Nagpur which shall be
07/06/2021.
6. In the circumstances, the parties to bear their own
costs.
JUDGE JUDGE
******
Sumit/*DB
