Bombay High Court
Shrishivkumar Das Guru Suresh ... vs Shri. Surbhan Nakiram Agarwal And ... on 13 January, 2022
Bench: N. J. Jamadar
JUDG-FA-1142-2003 WITH FA-1032-2012.DOC
Tandale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1142 OF 2003
WITH
CIVIL APPLICATION NO. 2818 OF 2003
Shri Shivkumar das Guru Suresh Ramdas, ]
Age : 45 years, Occ. Mahant, ]
C/o Lambe Hanuman Mandir, ]
Panchawati, Nasik - 6 ] ...Appellant
Versus
1. Shri Surabhan Nakiram Agrawal, ]
Age : 52 years, Occ.: Business, ]
R/o Katya Maruti, Panchwati, Nasik. ]
]
2. Shri Vivek Govind Rajhans ]
Age : 35 years, Occ.: Business, ]
]
3. Sau. Rajpati Babulal Sharma, ]
Age : 45 years, Occ.: Household, ]
R/o. Sallagadh, Niwasti, Jamuna, ]
Poolroad Palwai. ]
]
4. Shri Vijaya Maruti Ratu, ]
Age : 42 years, Occ.: Business, ]
R/o Katya Maruti Chauk, ]
Panchawati, Nasik. ]
]
5. The Asstt. Charity Commissioner, ]
Kharbanda Park, Nasik Pune Road, ]
Nasik. ] ...Respondents
ALONG WITH
FIRST APPEAL NO. 1032 OF 2012
WITH
CIVIL APPLICATION NO.2109 OF 2012
1. Mahant ShivKumar Guru Suresh Ramdas, ]
Age : 50 years, Occ.: Nil, ]
R/o Katya Materi Mandir, ]
Panchwati, Nashik, Tq.Dist.Nashik. ] ...Appellant
1/16
JUDG-FA-1142-2003 WITH FA-1032-2012.DOC
Versus
1. Shri Surajbhan Nekiram Agrawal, ]
Age : 49 years, R/o. 4611, Agrawal Wada, ]
Krushna Nagar, Panchawati, Nashik. ]
]
2. Shri Vijay Marotirao Raut, ]
Age : 5 years, R/o. 4610, Raut Restaurant, ]
Old Aadgaon Naka, Panchwati, ]
Nashik. ]
]
3. Shri Vivek Govindrao Rajhans, ]
Age : 45 years, R/o. Katya Matori Mandir, ]
Old Adgaon Naka, Panchawati, ]
Nashik, Tq. Dist. Nashik. ]
]
4. Deputy Charity Commissioner, ]
Maharashtra State, Bombay, ]
Through Joint Charity Commissioner, ]
Nashik, Janki Plaza, Dwarka, Nashik. ]
]
5. Shri Gopaldas Guru Mahant Shivkumardas ]
Age : 35 years, R/o Mahant Room, ]
Katya Mandir, Panchavati, Nashik, ]
Taluka & District Nashik. ]
]
6. Shri Anil Chunilal Verma, ]
Age : 40 years, R/o Hrawadi Road, ]
Shakti Nagar, Flat No.4, ]
Kunjawan Apartments ]
Hirawadi, Nashik 3. ]
]
7. Shri Brijmohan Devkinandan Sharma, ]
Age : 45 years, R/o Shop No.1, ]
Mnsi Towers, Sai Krupa Complex ]
Kashi Mira, District Thane. ]
]
8. Smt.Rajvatidevi Babulal Sharma, ]
Age : 51 years, R/o. Shriraj Ice Cream Factory, ]
Sallaged, Nayi Vasti, Jamnapur Road, Palval, ]
District Faridabad, Harayana. ] ...Respondents
--------
Mr. P. B Shah, Advocate for the Appellant in both matters.
Mr. S. B. Shetye, Advocate for Respondent Nos.1 to 4 in FA No.1142
of 2003 and Respondent No.2 in FA No.1032 of 2012.
Mr. A. R. Patil, AGP for the Respondent-State.
2/16
JUDG-FA-1142-2003 WITH FA-1032-2012.DOC
CORAM: N. J. JAMADAR, J.
RESERVED ON : 4th DECEMBER, 2021
PRONOUNCED ON : 13th JANUARY, 2022
JUDGMENT:-
1. Since the genesis of these appeals under Section 72(4) of the
Maharashtra Public Trusts Act, 1950 (for short, "the Trusts Act, 1950"),
as it stood before it came to be deleted by Maharashtra Act No. 55 of
2017, is in the order passed by the learned Assistant Charity
Commissioner, Nashik on an application (application No. 06 of 2001),
dated 21st April 2003, settling the scheme under Section 50A(1) of the
Trusts Act, 1950, both these Appeals are taken up for hearing and final
disposal by this common judgment.
2. Shorn of unnecessary details, the background facts leading to
these appeals can be stated as under :
(a) 'Shri Katya Maruti (Lambe Hanuman)', is a religious public
trust registered under the provisions of the Trusts Act, 1950 vide
registration No.A-438 (Nashik). It is situated at Survey No.296,
Panchawati, Nashik. The trust owns property admeasuring 50 acres at
Adgaon. It was registered in the year 1954. Shri Shivkumardas Guru
Suresh Ramdas, the appellant, had been acting as a trustee of the said
trust in accordance with 'Guru Shishya Parampara'.
JUDG-FA-1142-2003 WITH FA-1032-2012.DOC
(b) Shri Surajbhan Nakiram Agrawal and Shri Raoveer Tejsing
Sharma preferred an application, bearing application No.4 of 1998,
before the learned Assistant Charity Commissioner, Nashik for
settlement of a scheme under Section 50A(1) of the Trusts Act, 1950.
The learned Assistant Charity Commissioner, by an order dated 29 th July
2000, was persuaded to dispose of the said application, directing the
appellant Shri Shivkumar - the opponent therein, to submit a scheme
for the better management and administration of the trust within one
month of the said order and, in default, it was further provided that the
Charity Commissioner may proceed to hold sou motu inquiry.
(c) Shri Shivkumar, the appellant, didn't prefer an application
for settlement of the scheme under Section 50A of the Trusts Act, 1950,
in terms of the aforesaid order. Instead, the appellant preferred an
application, being Misc. Application No.573 of 2000, for review of the
aforesaid order dated 29th July 2000, passed in application No.4 of
1998. The learned Assistant Charity Commissioner rejected Misc.
Application No.573 of 2000 by an order dated 24th April 2003.
(d) In the meanwhile, Shri Surajbhan N. Agrawal - the
respondent No.1 and Shri Vivek G. Rajhans - the respondent No.2
preferred an application for settlement of the scheme, being application
No.6 of 2001 under Section 50A(1) of the Trusts Act, 1950. The
learned Assistant Charity Commissioner was persuaded to hold that it
JUDG-FA-1142-2003 WITH FA-1032-2012.DOC
was necessary to frame a scheme for better administration and
management of the affairs of the trust. Since the appellant as well as
the respondent Nos.1 and 2 had submitted the draft schemes, there was
no qualm over the necessity of the settlement of the scheme. The
learned Assistant Charity Commissioner further held that having regard
to the religious nature of the trust it was necessary to maintain the
status and position of Shri Shivkumar, the appellant, and thus it was
directed that Shri Shivkumar, the appellant, would be the Managing
Trustee by chair as well as Mahant of the Trust.
(e) The learned Assistant Charity Commissioner, appointed a
first Board of Trustee comprising Shri Shivkumar, the appellant, and
four other persons including the respondent No.1-Shri Surajbhan N.
Agrawal, the respondent No.2-Shri Vivek G. Rajhans, and respondent
No.4 - Shri Vijay Maruti Raut. The term of the office of the trustees was
fixed at five years. After completion of the first term, the learned
Assistant Charity Commissioner, Nashik directed that the next Board of
Trustees shall be appointed by the remaining trustees with the
consultation of the Managing Trustee Shri Shivkumar, the appellant.
With these directions as regards the appointment of the Managing
Trustee, the first Board of Trustees and the mode of succession, the
learned Assistant Charity Commissioner settled the scheme annexed as
JUDG-FA-1142-2003 WITH FA-1032-2012.DOC
'Annexure-A' to the order, for the better administration of the affairs of
the trust.
(f) Being aggrieved by the order passed by the Assistant
Charity Commissioner, Nashik, the appellant Shri Shivkumar preferred
an application under Section 72 of the Trusts Act, 1950 before the
District Court, Nashik, being Civil Application (B.P.T.) No.1 of 2003. The
learned District Judge, didn't find any reason to interfere with the order
passed by the Assistant Charity Commissioner. Thus, the application
came to be dismissed by the judgment and order dated 31st July 2003.
(g) Being further aggrieved and dissatisfied with the rejection
of the application assailing the order passed by the learned Assistant
Charity Commissioner settling the scheme under Section 50A of the
Trusts Act, 1950, Shri Shivkumar, the appellant, preferred an appeal,
being Appeal No.1142 of 2003, under Section 72(4) of the Trusts Act
1950, as it then stood.
(h) For the completion of the narration of facts, it may be
expedient to note that by an order dated 18 th August, 2003, this Court
granted ad-interim stay in respect of the appointment of respondent
No.1-Shri Surajbhan N. Agrawal and respondent No.4-Shri Vijay Maruti
Raut as the trustees of the first Board of Trustees.
JUDG-FA-1142-2003 WITH FA-1032-2012.DOC
(i) During the pendency of Appeal No.1142 of 2003, with the
passage of time, and consequent to the expiry of the term of the first
Board of Trustees, Shri Shivkumar reported change under Section 22 of
the Public Trusts Act, 1950 to the learned Assistant Charity
Commissioner, Nashik. It was, inter alia, reported that a meeting was
held on 6th May, 2008 and a new Board of Trustees was elected therein
for a term of five years in accordance with the scheme settled by the
learned Assistant Charity Commissioner in Application No. 6 of 2001.
In Inquiry Application No.462 of 2008, the Deputy Charity
Commissioner, Nashik was persuaded to reject the change by an order
dated 17th March, 2010 holding, inter alia, that there was no legal
change.
(j) Being aggrieved, the appellant Shri Shivkumar and rest of
the persons who claimed to be appointed as trustees, in the said
meeting, preferred an appeal under Section 70 of the Public Trusts Act,
1950 before the Joint Charity Commissioner, Nashik. By a judgment
and order dated 21st December 2010, the Joint Charity Commissioner
concurred with the view of the Deputy Charity Commissioner and
confirmed the order of rejection of change.
(k) Being further aggrieved, Shri Shivkumar, the appellant and
other persons, who claimed to be appointed as trustees, preferred an
application under Section 72 of the Trusts Act, 1950 before the learned
JUDG-FA-1142-2003 WITH FA-1032-2012.DOC
District Judge, Nashik, being Civil Misc. Application No. 8 of 2011. By
the judgment and order dated 2nd May 2012, the learned District Judge,
Nashik was persuaded to reject the application as no infirmity was
found in the orders passed by the authorites below.
(l) Being aggrieved, Shri Shivkumar, the appellant has
preferred Appeal, being First Appeal No. 1032 of 2012.
3. From the aforesaid narration of facts, it becomes evident that the
challenge in Appeal No.1142 of 2003 is to the settlement of the scheme
under Section 50A of the Act 1950 by the leaned Assistant Charity
Commissioner. In Appeal No.1032 of 2012, the challenge is to the
rejection of the change reported by the appellant in accordance with the
mode of succession prescribed in the said scheme. Evidently, the
scheme has been acted upon. The appellant claims to have appointed
the trustees in exercise of the authority vested in him under the scheme
settled by the Assistant Charity Commissioner.
4. In the backdrop of the aforesaid facts, I have heard Mr. Shah, the
learned counsel for the appellant and Mr. Shetye, the learned counsel
for the respondent Nos.1 to 4, the contesting respondents. With the
assistance of the learned counsels, I have perused the material on
record including the impugned orders and the documents tendered for
the perusal of the Court and authorities below.
JUDG-FA-1142-2003 WITH FA-1032-2012.DOC
5. At the outset, Mr. Shah, the learned counsel for the appellant
submitted that there have been subsequent events, which bear upon the
determination of these appeals. It was submitted that the change
reports submitted by the appellant, for the succeeding terms have been
accepted. Resultantly, in a sense, the determination in these appeals
becomes academic.
6. Mr. Shah invited the attention of the Court to an order passed by
the leaned Assistant Charity Commissioner, Nashik in Change Report
No. 3145 of 2018, dated 24th October 2019, whereby the Assistant
Charity Commissioner accepted the change reported for the tenure of
2018 to 2023.
7. Mr. Shah, the learned counsel for the appellant, however
submitted that the competence of the respondent Nos.1 and 4 to be
appointed as the trustees in the first Board of Trustees, is required to be
determined as the respondent Nos.1 and 4 are unjustifiably interfering
in the administration of the trust. This submission was premised on the
fact that, in Application No.4 of 1998, the Assistant Charity
Commissioner had recorded that the applicant No.2 therein Shri
Surajbhan N. Agrawal (the respondent No.1) was a tenant in the
property of the trust and the applicant No.1 Shri Raoveer Tajsing
Sharma had criminal antecedents. This aspect has not been properly
evaluated by the learned Assistant Charity Commissioner while
JUDG-FA-1142-2003 WITH FA-1032-2012.DOC
appointing the first Board of Trustees and even the learned District
Judge failed to rectify the mistake committed by the learned Assistant
Charity Commissioner, while passing the impugned judgment and order.
8. In opposition to this, Mr. Shetye, the learned counsel for
respondent Nos.1 to 4 submitted that, the learned Assistant Charity
Commissioner as well as the learned District Judge, has categorically
recorded a finding regarding the necessity of settling the scheme for the
better administration of the trust. The authorities have taken care to
provide that the appellant continues to be the Managing Trustee and
Mahant of the Trust. Yet, the appellant is not satiated and desires to
exercise absolute and unregulated control over the affairs of the trust.
Thus, there is no infirmity in the orders passed by the Assistant Charity
Commissioner and the learned District Judge, which warrants exercise
of appellate jurisdiction by this Court under Section 72(4) of the Trusts
Act, 1950.
9. In order to lend support to the aforesaid submission, Mr. Shetye
placed reliance on a judgment of the Division Bench of this Court in the
case of Shivprasad Shankarlal Pardeshi Vs. Leelabai Badrinayaran
Kalwar,1 wherein it was laid down that an appeal preferred under
Section 72(4) of the Trusts Act, 1950, is in the nature of second appeal
and subject to the restrictions and limitations imposed on a second
1. 1998 (1) Mh.L.J. 444
JUDG-FA-1142-2003 WITH FA-1032-2012.DOC
appeal as prescribed under Section 100 of the Code of Civil Procedure,
1908 and thus it can be entertained only if the High Court is satisfied
that the case involves a substantial question of law.
10. Mr. Shah, the learned counsel for the appellant joined the issue
by canvassing a submission that there are no such limitation and/or
restrictions sought to be urged on behalf of the respondents, in the High
Court exercising the appellate jurisdiction under Section 72(4) of the
Trusts Act, 1950. Reliance was placed on the Full Bench judgment of
this Court in the case of Prabhakar Sambhu Chaudhary and Anr. Vs.
Lxman Baban Mali & Ors.,2 wherein after disagreeing with the decision
in the case of Shivprasad Shankarlal Pardeshi (supra), it was enunciated
that the appeal provided under Sub-section (4) of Section 72 of the
Trust Act, 1950 is not subjected to the restrictions and limitations
imposed under the provisions of Section 100 of the C.P.C. and the scope
of appeal extends to reconsideration of decision of the lower forum on
questions of fact and questions of law with a jurisdiction to reverse,
modify the decision or remand the matter to the lower forum, for fresh
decision in terms of its direction. It is not necessary for the High Court
to formulate substantial question of law while admitting the appeal.
11. The Full Bench judgment in the case of Prabhakar Sambhu
Chaudhary (Supra) sets the controversy as regards the nature of
2 2016 (3) Bom. C.R. 714
JUDG-FA-1142-2003 WITH FA-1032-2012.DOC
appellate jurisdiction, at rest, and the appeal under Sub-section (4) of
Section 72, as it then stood, can be said to be a comprehensive appeal
wherein all questions of facts and law can be legitimately agitated.
12. In the facts of the case at hand, however, it appears that, the
question of justifiability of the scheme for the better administration of
the affairs of the trust is not required to be delved into. The Assistant
Charity Commissioner has ascribed justifiable reasons as to the necessity
of the settlement of the scheme. In the changing scenario, where the
property of the trust is required to be protected and administration
attuned to the object of advancement of the trust, a scheme for the
better administration of affairs of the trust is, in a sense, indispensable.
It is imperative to note that, the appellant couldn't assail the principal
finding of the Assistant Charity Commissioner that the settlement of the
scheme was necessary for the better administration of the trust, by
ascribing any reason, much less a compelling one. Thus, no
interference is warranted in the finding recorded by the learned
Assistant Charity Commissioner that the scheme was necessary for the
better administration of the trust, which was affirmed by the learned
District Judge by the impugned judgment and order.
13. The Assistant Charity Commissioner ensured that the settlement
of the scheme for the better administration of the trust doesn't infringe
the authority of the appellant as the head of the religious order. The
JUDG-FA-1142-2003 WITH FA-1032-2012.DOC
appellant was retained as the Managing Trustee. His position as a
Mahant of the trust was not at all disturbed. On the contrary, the
Appellant was vested with the authority to influence the appointment of
the trustees for the succeeding tenure. In fact, the appellant claims to
have appointed trustees in exercise of the said authority. Hence, no
fault can be found with the dispensation provided by the Assistant
Charity Commissioner in the matter of the mode of succession, as well.
14. The submission on behalf of the appellant that the Assistant
Charity Commissioner committed an error in appointing respondent
No.1 - Shri Surajbhan N. Agrawal and respondent No.4 - Shri Vijay M.
Raut as the members of the first Board of Trustees, in the backdrop of
conflict of interest and antecedants, even if taken at par, is of no
significance. By the efflux of time, the tenure of respondent Nos.1 and
4, as the members of the first Board of Trustees, came to an end, in the
year 2008 itself. Their appointment was for the term of five years. They
were not appointed in perpetuity. Thus, at this juncture, the legality,
propriety and correctness of the order passed by the Assistant Charity
Commissioner to settle the scheme for the trust can not be assailed on
the ground that the choice of the members of the first Board of Trustees
was infirm.
15. Had it been the case that the same Board of Trustees continued,
either on account of intervention by the Court or otherwise, different
JUDG-FA-1142-2003 WITH FA-1032-2012.DOC
considerations would have come into play. On the contrary, it is the
case of the appellant that a fresh Board of Trustees came to be
constituted in the meeting held on 6th May, 2008. Resultantly, the
challenge to the impugned judgment and order is devoid of any
substance.
16. Mr. Shetye, the learned counsel for the respondent Nos.1 to 4
would urge that the respondent Nos.1 and 4, whose appointment was
stayed by interim order passed by this Court, deserve restorative reliefs.
The respondent Nos.1 and 4 cannot be made to suffer the stigma of
disqualification, which the interim order passed by this Court, according
to Mr. Shetye, entailed.
17. This submission of Mr. Shetye, in my considered view, doesn't
merit determination in these appeals. Indisputably, the appointment of
respondent Nos.1 and 4 was for the first term of five years. The mode
of succession is governed by the scheme settled by the learned Assistant
Charity Commissioner. It provides that, after completion of term of the
first Board of Trustees, next board of trustees shall be appointed by the
remaining trustees with the consultation of the Managing Trustee.
18. In this view of the matter, it would be suffice to clarify that as and
when the vacancy arises in the Board of Trustees and such vacancy is
proposed to be filled up in accordance with the scheme, the fact that
this Court had stayed the appointment of respondent Nos.1 and 4, by
JUDG-FA-1142-2003 WITH FA-1032-2012.DOC
order dated 18th August, 2003, shall not operate as an impediment in
consideration of their candidature.
19. I hasten to add that, this Court may not be understood to have
expressed any opinion on the eligibility and competence of the
respondent Nos.1 and 4, and it would be open for the authority vested
with the power to appoint trustees under the scheme, to decide the said
aspect, as and when it arises, on its own merits.
FIRST APPEAL NO. 1032 OF 2012
20. In the backdrop of the facts, which have been elaborately noted
above, this appeal, which essentially assails the correctness of the order
passed by the Deputy Charity Commissioner, rejecting the change,
reported for the period of 2008 to 2014, and which was confirmed by
the Joint Charity Commissioner and the learned District Judge, by the
impugned Order, is rendered infructuous by the passage of time.
21. As indicated above, Mr. Shah, the learned counsel for the
appellant invited the attention of the Court to the order passed by the
learned Assistant Charity Commissioner, Nashik in C.R. No.3145 of
2018, whereby the change reported for the term 2018 to 2023 has been
accepted.
22. The Court has to take cognizance of the subsequent events which
bear upon the controversy. Since on the own showing of the appellant
JUDG-FA-1142-2003 WITH FA-1032-2012.DOC
the new Board of Trustees has taken up the management of the affairs
of the trust and the change reported in that regard has also been
accepted by the Assistant Charity Commissioner, Nashik, it would be
superfluous to delve into legality, propriety and correctness of the
orders passed by the authorities under the Trusts Act, 1950 and the
learned District Judge.
23. The upshot of the aforesaid consideration is that, subject to
observations in para 18 and 19 above, both the appeals deserve to be
dismissed.
24. Hence, the following order:
:ORDER:
(i) First Appeal No.1142 of 2003 stands dismissed.
(ii) In view of dismissal of Appeal itself, Civil Application
No.2818 of 2003 does not survive and accordingly stands disposed of.
(iii) First Appeal No.1032 of 2012 stands dismissed.
(iv) In view of dismissal of the Appeal No.1032 of 2012, Civil
Application No.2109 of 2012 does not survive and accordingly stands
disposed of.
(v) In the circumstances, the parties shall bear their respective
costs.
[N. J. JAMADAR, J.]
MANOJ R
Digitally signed
by MANOJ R 16/16
TANDALE
TANDALE Date: 2022.01.13
17:30:49 +0530
