Bombay High Court
Natvarlal Virjibhai Thakkar (Advani) ... vs State Of Maharashtra And 13 Ors on 1 February, 2024
Author: A.S.Chandurkar
Bench: A.S.Chandurkar
2024:BHC-OS:1823-DB
WP-2329-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2329 OF 2023
1 Natvarlal Virjibhai Thakkar ]
(Advani), Adult Indian Inhabitant, ]
having address at 502, Gauran ]
Apartment, LBS Marg, Opp: Damani ]
Estate, Thane (West) 400 602. ]
2 Mohanlal Chunilal Thakkar ]
(Pujara), Adult Indian Inhabitant, ]
address at Thakkar's C S Sugar ]
Market, Sector 3 Airoli, Navi ]
Mumbai 400 708. ]
3 Deepak Shivaji Thakkar (Pandit) ]
Adult Indian Inhabitant, having ]
address at 601, Prime Rose Society, ]
Opp: Hero Honda Service Centre, ]
Panch-Pakhadi, Thane (West) ]
400 602. ]
4 Maganlal Khimji Thakkar ]
Adult Indian Inhabitant, having ]
address at 1301-2, Estoria Building, ]
Raheja Garden, LBS Road, Wagle ]
Estate, Thane 400 604. ]
5 Amrutlal Natvarlal Thakkar ]
(Someshwar), Adult Indian ]
Inhabitant, having address at ]
Debonair Apartment, Almenda ]
Road, Chandanwadi, Thane (West) ]
400 602. ]
6 Mukesh Narotam Thakkar (Pandit) ]
Adult Indian Inhabitant, having ]
address at Ambika Bhavan Society, ]
Opp: Bavdi Dhobi Ali, Thembi Naka, ]
Thane (West) 400 602. ]
7 Chimanlal Mulji Thakkar (Bhinde) ]
Adult Indian Inhabitant, having ]
address at 9/8 A Wing, Ellora ]
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Complex-2, CHS Ltd., Ghanshyam ]
Gupte Road, Near Gomantak Bakery, ]
Dombivali (West), Thane 421 202. ]
8 Pravin Shantilal Thakkar (Sachde) ]
Adult Indian Inhabitant, having ]
address at 604, Nirmal Society, ]
Joshiwada Charai, Thane (West) ]
400 602. ]
9 Priyavandan Sundarji Thakkar ]
(Ramani), Adult Indian Inhabitant ]
having address at C/4, Kailash ]
Society, Barve Near Abhishek ]
Hospital, Ghatkopar (West) Mumbai ]
400 084. ]
10 Munilal Amrutlal Thakkar ]
Adult Indian Inhabitant, having ]
nd
address at 2 Rabodi, Near Payal ]
Oil Depot, Tapase Nagar, ]
Thane (West) 400 601. ]
11 Vinod Deepchand Thakkar (Kotak) ]
Adult Indian Inhabitant, having ]
address at 1302, A Wing, Lokmanya ]
Society, Veer Savarkar Society, ]
Naupada, Thane (West) 400 601. ]
12 Dinesh Deepchand Thakkar (Kotak) ]
Adult Indian Inhabitant, having ]
th
address at 13 Floor, Elegance, ]
LBS Road, Near Damani Estate, ]
Chandra Nagar, Thane 400 602. ]
13 Nikhil Ishvarlal Thakkar ]
Adult Indian Inhabitant, having ]
address at Shreeji Heights, ]
B- Wing, Flat No.1903, Plot No.1, 1A ]
1B, 1C, Palm Beach Road, Sector ]
46A, Seawood (West), Navi Mumbai ]
400 706. ]
14 Ramesh Prabhuram Thakkar ]
Adult Indian Inhabitant, having ]
address at B 1603, Sukh Sheetal ]
CHS, Near R Mall, Manpada, ]
Thane (West) 400 607. ] .. Petitioners.
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v/s.
1 State of Maharashtra ]
through Government Pleader, ]
Bombay High Court,Mumbai 400 001.]
2 The Charity Commissioner, ]
Maharashtra State, having address ]
at SASMIRA, Dr. A. B.Road, ]
Prabhadevi, Mumbai 400 025. ]
3 The Joint Charity Commissioner ]
Greater Mumbai Region, having ]
address at SASMIRA, Dr. A. B. Road, ]
Prabhadevi, Mumbai 400 025. ]
4 Assistant Charity Commissioner -VI ]
Greater Mumbai Region, having ]
address at SASMIRA, Dr. A. B. Road, ]
Prabhadevi, Mumbai 400 025. ]
5 Shri Cutchi Lohana Mahajan ]
Mumbai, A Public Charitable Trust ]
registered under the Maharashtra ]
Public Trust Act, 1950 (PTR No.A- ]
1972/B), having its office at 33, ]
Dhairyasthan Street, Masjid Bunder, ]
Vadgadi, Mumbai 400 003. ]
6 Vasasntkumar Nathubhai Manek ]
Adult, Indian Inhabitant, President ]
of Respondent No.5, Trust having ]
their address at 417, Vasant Nivas ]
Bhaudaji Road, King Circle, Matunga ]
CR, Mumbai 400 019. ]
7 Manubhai Devchand Kothari ]
Adult, Indian Inhabitant, Trustee of ]
Respondent No.5 Trust, having their ]
address at Chandaramji Building, ]
Plot 109/10, Block-18 Road, 7A, ]
Sewree Wadala Road, Mumbai 400031]
8 Navinbhai Ramji Kothari ]
Adult, Indian Inhabitant, Trustee of ]
Respondent No.5 Trust, having their ]
address at 25, Shiv Krupa, Devidayal ]
Road, Mulund (W) Mumbai 400 080.]
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9 Pratapbhai Vasanji Thakkar ]
Adult, Indian Inhabitant, Trustee of ]
Respondent No.5 Trust, having their ]
address at G-1, Yashwant Smruti, ]
Ground Floor, S. N. Road, Tambenagar]
Mulund (West),Mumbai 400 080. ]
10 Nitin Gangaram Thakkar (Pandhi) ]
Adult, Indian Inhabitant, Secretary ]
of Respondent No.5 Trust, having ]
their address at 502, New Matruchhya]
CHS, Ganesh Gavde Road, Opp: ]
Vijaya Bank, Mulund (West) ]
Mumbai 400 080. ]
11 Shri Dinesh Keshavji Kothari ]
Adult, Indian Inhabitant, Secretary of]
Respondent No.5 Trust, having their ]
address at D-302, Koteshwar Palace, ]
Jiva Mahale Marg, Opp: Bahar ]
Talkies, Opp: Garware Co. Andheri ]
(East), Mumbai 400 069. ]
12 Shri Jesal Manubhai Kothari ]
Adult, Indian Inhabitant, Secretary ]
of Respondent No.5 Trust, having ]
their address at Chandaramji Building]
Plot 109/10, Block-18, Road 7A, ]
Sewree Wadala Road, Mumbai 400031]
13 Sanjay T. Manek ]
Chief Election Officer, Adult Indian ]
Inhabitant, having address at C Wing ]
Ashford Royale, Nahur (West) ]
Mumbai 400 078. ]
14 Hitesh J.Thakkar ]
Joint Election Officer, Adult, Indian ]
Inhabitant, having address at Prem ]
Group, 1st Floor, Outhouse, Dinmani ]
Sadan, R.R.T. Road, Mulund (West) ]
Mumbai 400 080. ] .. Respondents.
Mr. Ashish Kamat, Sr. Advocate with Mr. Kausar Bantwala with Ms. Neuty
N. Thakkar i/b. Tushar Goradia, for the Petitioners.
Mr. S. B. Gore, AGP for Respondent No.1 to 4-State.
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Mr. Prafulla Shah i/b. Uttam Rane, for Respondent Nos. 2 to 5.
Mr. R. V. Govilkar, Sr. Advocate with Shaba N. Khan & Mihir Govilkar, for
Respondent Nos. 6, 8,9, 10, 11 12.
CORAM: A.S.CHANDURKAR &
FIRDOSH P. POONIWALLA, JJ.
RESERVED ON : 18th DECEMBER, 2023.
PRONOUNCED ON : 1st FEBRUARY, 2024.
JUDGEMENT (Per FIRDOSH P. POONIWALLA,J.):
-
The present Petition is heard finally at the admission stage.
2 The present Petition seeks the following final reliefs:-
"(a) That this Hon'ble Court be pleased to pass
appropriate orders and/or directions in the nature of writ
of certiorari or mandamus or any other writ of
appropriate nature calling for the records and papers/
proceedings of Respondent No.5 in connection with the
amendment to Clause 6 of the constitution of Respondent
No.5 and after examining the legality and validity
thereof, set aside and/or quashed the purported
amendment to Clause 6 of the constitution of Respondent
No.5;
(b) That this Hon'ble court be pleased to pass
appropriate orders and/or directions in the nature of writ
of certiorari or mandamus or any other writ of
appropriate nature directing Respondent No.5 to not to
hold elections pursuant to the Public Notice dated 17 th
October, 2022 (Exh.Q) till the outcome of the
amendment to Clause 6 of the constitution of Respondent
No.5 is decided."
3 Respondent No.5 is a Public Trust, registered under the
provisions the Maharashtra Public Trusts Act, 1950 ("the MPT Act").
Respondent No. 5 was formed in the year 1957 for the benefit of the
Cutchi Lohana Mahajan Community. It is the case of the Petitioners that
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Respondent No.5 had approximately 70,000 members, including
approximately 40,000 members residing within the area of Thane, Check
Naka, Dombivali and Navi Mumbai. The said membership also includes
the people living within the limits of Municipal Corporation of Greater
Mumbai. Respondent No.5 is governed by its Bye-laws and its
Constitution.
4 Respondent No.5 held an Annual General Meeting ("AGM")
on 26th March, 2000. In the said AGM, it was resolved to amend Clause 6
of the Constitution of Respondent No.5. The said Clause 6, prior to the
amendment, reads as follows:-
"6.:- Original native of Kutch or Jodiya, Bet, Dwarka
native of Dakha residing within boundary of City Thane or
Checknaka area very close to Greater Bombay, New
Bombay, Dombivali and Mulund and who identifies himself
as "Kutchi Lohana", he shall be treated as a member of the
Mahajan."
Clause 6, after amendment, reads as follows:-
"6.Original native of Kutch residing within boundary of
Greater Mumbai and who identifies himself as "Kutchi
Lohana", he shall be treated as a member of the Mahajan."
5 Thereafter, a Change Report No.2189 of 2000 was filed by
Respondent No.5, under Section 22 of the MPT Act, to seek approval of
the said resolution passed at the AGM held on 26 th March, 2000, pursuant
to which the said Clause 6 was amended. An Order dated 28 th February,
2002 was passed allowing the said Change Report No. 2189 of 2000.
6 On 11th January, 2012, a Revision Application was filed by
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one Sureshbhai V. Thakkar before Respondent No.3, being Revision
Application No.1 of 2012, challenging the said Order dated 28 th February,
2002.
7 On 27th January, 2012, the said Sureshbhai V. Thakkar and
another person filed a Writ Petition in this Court, being Writ Petition
No.839 of 2012, inter alia, challenging the election proposed to be held
on 29th January, 2012. By an Order dated 27th January, 2012, passed in the
said Writ Petition, this Court, by way of interim directions, directed that
the elections to be held on 29th January, 2012, would be subject to the
outcome of Revision Application No.1 of 2012. Subsequently, the said
Writ Petition was withdrawn with liberty to approach an appropriate
authority and/or to adopt the appropriate remedy for challenging the said
election, as recorded in an Order dated 17 th July, 2012, passed by this
Court. It is the case of the Petitioners that the aforesaid shows that, in the
year 2012, Orders were passed by this Court which made the outcome of
the elections subject to the Change Report being accepted.
8 By an Order dated 25th May, 2012, the said Revision
Application No.1 of 2012 was allowed and the matter was remanded to
Respondent No.4. Thus, the Order dated 28 th February, 2002, by which
the said Change Report No.2189 of 2000 was allowed, was set aside by
the said Order dated 25th May, 2012.
9 The then Trustees of Respondent No.5 challenged the said
Order dated 25th May, 2012 by filing an Appeal before the City Civil Court
at Bombay. Since there was a delay in filing such an Appeal, by an Order
dated 14th June, 2013, the City Civil Court at Bombay dismissed the
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application for condonation of delay, and, therefore, the said Appeal also
stood dismissed.
10 In the meantime, one Nilesh Thakkar and one Jayesh Kotak
filed an Application, under Section 73 A of the MPT Act, to be joined as
parties to the proceedings in respect of Change Report No. 2189 of 2000.
By an Order dated 6th September, 2012, they were impleaded as parties to
the said Change Report. One Pravin D. Katharani, also filed an
Intervention Application to be joined as a party to the proceedings of the
said Change Report. The same was allowed by an Order dated 12 th
October, 2012. Further, an Intervention Application filed by one Jitendra
Pandit Potra was also allowed by an Order dated 6 th April, 2013.
Ultimately, by an Order dated 17 th June, 2013, Respondent No.4 rejected
the said Change Report No.2189 of 2000.
11 Respondent No.5 filed an Appeal challenging the said Order
dated 17th June, 2013, being Appeal No.23 of 2013. Respondent No.3
passed an Order dated 25th September, 2019, inter alia, upholding the
Order dated 17th June, 2013 passed by Respondent No.4.
12 On 6th February, 2020, Respondent No.5 filed a Writ Petition
in this Court impugning the said Order dated 25 th September, 2019 passed
by Respondent No.3, being Writ Petition No. 555 of 2021. No interim
relief was granted in the said Writ Petition. We are informed by learned
Counsel for the parties that, on 30th November, 2022, the said Writ
Petition was withdrawn.
13 Thereafter, Respondent No.5 issued a Public Notice dated 15 th
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March, 2022, calling for a General Body Meeting to be held on 10 th April,
2022. It is the case of the Petitioners that this Public Notice had very
limited circulation.
14 Further, Respondent No.5 issued a Notice dated 17 th March,
2022 in a newspaper calling for a General Body Meeting on 10 th April,
2022 and containing the Agenda of the said General Body Meeting to be
conducted on 10th April, 2022. Item No.6 of the said Agenda refers to
discussion and decision regarding amendment of Clauses 6 and 90 of the
Constitution of Respondent No.5.
15 On 10th April, 2022, a resolution was passed in a General
Body Meeting of Respondent No.5, amending Clauses 6 and 90 of the
Constitution of Respondent No.5. The effect of the amendment of Clause
6 was identical to that of the amendment passed on 26 th March,2000,
which had culminated into Change Report No.2189 of 2000, which had
thereafter been rejected.
16 On 8th July, 2022, Respondent No.5 filed a Change Report
No.4169 of 2022 before Respondent No.4. The said Change Report is
pending before the Respondent No.4. Petitioner No.1 and one Nilesh
Thakkar have filed their Intervention Applications, objecting to the change
reported in the said Change Report No.4169 of 2022.
17 Thereafter, Respondent No.5 issued a Public Notice dated 17 th
October, 2022 in the Mumbai Samachar Newspaper for election for the
post of President, 25 Managing Committee Members and 5 Trustees of
Respondent No.5. The said Public Notice mentions that the registered
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members are the members residing in Municipal Corporation of Greater
Mumbai limits, a list of whom was published on 13 th October, 2022. A
schedule of election was mentioned in the said Public Notice. It is the case
of the Petitioners that the entire ploy of Respondent No.5 and the
Managing Committee was to exclude members who were not residing
within the limits of Municipal Corporation of Greater Mumbai limits, and
that it was at the time of issuing a Public Notice for election that the
Petitioner had learnt the motive behind filing of Change Report No.4169
of 2022 once again amending Clause 6 of the Constitution of Respondent
No.5.
18 Accordingly, Petitioner No.4 addressed a letter dated 11 th
October, 2022 to Respondent No.5, inter alia, placing on record his
grievances. Respondent No.5 forwarded its reply dated 14 th October, 2022
and informed Petitioner No.4 that, since he resided at Thane, which was
outside the boundary of the Municipal Corporation of Greater Mumbai, he
was not a member of Respondent No.5.
19 In these circumstances, the Petitioners have filed the present
Writ Petition challenging the said amendment to Clause 6 of the
Constitution of Respondent No.5 and seeking directions to the effect that
elections of Respondent No.5 should not be held till the outcome of the
amendment to Clause 6 of the Constitution of Respondent No.5 is
decided.
20 By an Order dated 11th November, 2022 passed in this
Petition, by way of ad-interim relief, this Court held that the voting
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may takes place as scheduled, however, the result of the elections should
not be declared. By subsequent orders, the said ad-interim order is
continued till date.
21 Mr. Kamat, the learned Senior Counsel appearing on behalf of
the Petitioner, took us through the factual aspects of the matter as
narrated above. Mr. Kamat submitted that the actions of Respondent No. 5
are contrary to the provisions of the MPT Act and the Constitution of the
Trust. Mr. Kamat submitted that the amendment to Clause 6 of the
Constitution of the Respondent No.5 has been made contrary to the
principles of natural justice. He submitted that, in the past, the
Respondent had made an attempt to carry out such an amendment to
Clause 6 but the same had been rejected, and the Managing Committee of
Respondent No.5, for reasons best known to them, have again passed an
identical Resolution debarring members residing in the area out side the
limits of the Municipal Corporation of Greater Mumbai.
22 Mr. Kamat further submitted that, if the Writ Court finds that
the actions of Respondent No. 5 smack of arbitrariness, it should interfere
in the matter. He further submitted that, in matters of public interest, a
Writ Petition is maintainable. He also submitted that a Writ Petition on a
similar issue was entertained earlier by this Court.
23 He further submitted that Respondent No.5 is a Public
Charitable Trust. The objects of Respondent No. 5 are to carry out works
for the progress of the community and to extend support and co-operation
for works in the interest of the nation as far as possible. The Trust is run
for the betterment of the community and the public at large. He also
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pointed out that the Trust was maintaining a temple at Vadgadi, Mumbai,
the expenses of which are borne by the Trust. He submitted that the
temple is run in the general interest of the public, including the people of
the Cutchi Lohana Community, and is open for the general public. He also
submitted that Respondent No.5 celebrates 3 to 4 occasions/ events/
festivals yearly and makes arrangements for providing food to the
members of the community and the general public. He submitted that the
aforesaid shows that Respondent No.5 is performing public functions.
24 Mr. Kamat further referred to the Minutes of the General
Body Meeting of Respondent No.5 held on 10 th April, 2022, wherein the
Resolution for amending Clause 6 of the Constitution of Respondent No. 5
was passed, and submitted that it shows that only 114 members of
Respondent No.5 attended the said General Body Meeting whereas the
Trust has over 35,000 members.
25 On the question of alternate remedy being available to the
Petitioner, Mr. Kamat submitted that the Charity Commissioner cannot
interfere in the election process, and, since in the present case, the
Petitioners were seeking reliefs in respect of the election of Respondent
No.5, the present Writ Petition was maintainable. In this context, Mr.
Kamat referred to the Judgement of this Court in Lahudas S. Karad v/s.
State of Maharashtra and Others1, Order dated 11th June, 2018 passed by
this Court in Suresh Shamrao Jadhav alias Suraj Sharma, Jadhav v/s. The
Assistant Charity Commissioner in (Writ Petition No.5660 of 2018) and to
the Judgement of this Court in Shahid Javed Maniyar and Another v/s.
Sagir Munirkhan Sarguroh and Others2 .
1 1993 Mh. L. J. 1056,
2 2014 (5) Mh. L.J. 823
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26 Mr. Kamat also submitted that since Respondent No. 5 runs a
temple which was open to the public, thereby performing public
functions, a Writ Petition against it was maintainable. In support of his
submission, he relied upon the Judgement of the Hon'ble Supreme Court
in Bala Shankar Maha Shanker v/s. Charity Commissioner, Gujarat State3.
27 In response, Mr. Govilkar, the learned Senior Counsel
appearing on behalf of Respondent No. 5, referred to prayers (a) and (b)
of the Petition. He submitted that, considering the nature of the prayers
sought by the Petitioner, a Writ Petition was not maintainable. He
submitted that, by way of present Petition, the Petitioner was seeking
interference in the election process, which is not permissible. Mr. Govilkar
further submitted that Respondent No. 5 is not a State within the meaning
of Article 12 of the Constitution of India and, therefore, also, this Petition
is not maintainable.
28 Further, Mr. Govilkar referred to the provisions of Section 22
of the MPT Act and submitted that the legality and validity of the
amendment to Clause 6 of the Constitution can be gone into by the Office
of the Charity Commissioner under the provisions of Section 22 of the
MPT Act. He further pointed out that Section 70 of the MPT Act provided
for an Appeal against a decision under Section 22 of the MPT Act. He
submitted that the provisions of the MPT Act therefore provide a
completely efficacious alternate remedy to the Petitioners, and, for this
reason also, the present Writ Petition ought not to be entertained.
29 Mr. Govilkar further relied upon the judgement of the Hon'ble
3 1995 Supp (1) SCC 485
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Supreme Court in Ajay Hasia & Others v/s. Khalid Mujib Sehravardi &
Others4 wherein the Hon'ble Supreme Court has laid down as to what
constitutes "other authorities" under Article 12 of the Constitution of
India.
30 Mr. Govilkar also relied upon the Judgement of this Court in
Adarsh Vidyalaya Shikshan Samiti v/s. State of Maharashtra 5 wherein this
Court has held that just because the Change Report is pending before the
Charity Commissioner, the old body cannot be permitted to continue and
the new body of trustees has to take charge. He also relied upon the
judgement of this Court in Ganesh s/o. Mahadeorao Thawre v/s. Central
Hindu Military Education Society, Nashik & Another 6 for the same
proposition of law.
31 Mr. Govilkar also relied upon the judgement of this Court in
Sandeep Ram Meghe & Others v/s. Pundlikrao Balaji Gohad & Others 7
wherein this Court has held that an enquiry under Section 22 of the MPT
Act is a judicial enquiry and is not just a formal enquiry for recording the
change.
32 Mr. Govilkar submitted that, for all these reasons, the present
Writ Petition is not maintainable.
33 Mr. Shah, the learned Counsel appearing for Respondent
Nos.8 and 13 also made submissions. Mr. Shah referred to the Judgement
of this Court in Lakhichand Marotrao Dhoble & Another v/s. Joint Charity
4 (1981) 1 SCC 722
5 2015 SCC Online Bom. 1162
6 2007 (6) Mh. L. J. 589
7 2013 (4) Mh. L. J. 703
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Commissioner, Civil Lines, Nagpur & Others 8 (to which one of us, namely
Justice Chandurkar, was a party) wherein this Court held that considering
the objects of a particular trust, the voluntary nature of its activities,
absence of any State assistance in any manner, absence of any positive
obligation of public nature to be discharged and lack of public law
element, the said Trust was not a person or authority for the purposes of
Article 226 of the Constitution of India. Mr. Shah submitted that it is a
settled position of law that, when a trust is not discharging the public
functions a Writ cannot be issued against it. Mr. Shah submitted that, for
these reasons alone, the present Writ Petition ought not to be entertained.
34 Mr. Shah further submitted that the facts of the present case
show that the same give rise to disputed question of facts. Further, an
entire machinery is available under the provisions of MPT Act to deal with
the same. In these circumstances also, the present Writ Petition ought not
to be entertained.
35 In rejoinder, Mr. Kamat referred to the Judgement of the
Hon'ble Supreme Court in Maharashtra Chess Association v/s. Union of
India & Others9 and in Andi Mukta Sadguru Shree Muktajee Vandas
Swami Suvarna Jayanti Mahotsav Smarak Trust & Others v/s. V. R. Rudani
& Others10 and submitted that these Judgements show that, in cases
where injustice has been caused to the Petitioners, a mandamus may be
issued by this Court.
36 Further, Mr. Kamat reiterated his submission that Respondent
8 2020 (6) Mh.L.J. 662
9 (2020) 13 SCC 285
10 (1989) 2 SCC 691
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No.5 performs public duties and, therefore, the present Petition is
maintainable.
37 In Sur-rejoinder, Mr. Shah referred to the Judgement of the
Hon'ble Supreme Court in St. Mary's Education Society & Another v/s.
Rajendra Prasad Bhargava & Others11 wherein the Hon'ble Supreme Court
has held that, even if it is assumed that an institution is performing a
public duty, for a Writ to be maintainable under Article 226 of the
Constitution of India, the act complained of must have a direct nexus with
the discharge of that public duty. Mr. Shah also relied upon the Judgement
of the Hon'ble Supreme Court in Church of North India v/s. Lavajibhai
Ratanjibhai & Others12 wherein the Hon'ble Supreme Court has held that
the MPT Act provides for conclusiveness of the orders passed by the
Charity Commissioner and that if a change notice is given, i.e. if a Change
Report is filed, then it would be for the appropriate authority to consider
the matter. Mr. Shah also refers to the Judgement of the Hon'ble Supreme
Court in M. Subramanian & Another v/s. S. Janki & Another 13 wherein the
Hon'ble Supreme Court has held that if an alternate remedy is available,
the same must be availed of, as, otherwise, the High Court would be
flooded with the Writ Petitions. By relying upon all these judgements, Mr.
Shah reiterated that the present Writ Petition ought not to be entertained.
FINDINGS:-
38 We have heard the learned Counsel for the parties and
perused the documents on record.
11 (2023) 4 SCC 498
12 (2005) 10 SCC 760
13 (2020) 16 SCC 728
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39 The main relief sought in the present Petition is for quashing
of the amendment to Clause 6 of the Constitution of Respondent No.5.
The said amendment was carried out by passing a Resolution in a General
Body Meeting of Respondent No.5. held on 10 th April, 2022. Pursuant
thereto, on 8th July, 2022, Respondent No.5 filed a Change Report No.
4169 of 2022 before Respondent No.4. The Petitioner No.1 and one Nilesh
Thakkar have filed Intervention Applications, objecting to the said Change
Report No. 4169 of 2022.
40 Once the said Change Report is filed, the provisions of
Section 22 of the MPT Act came into play. Sub-sections (1) to (3) and (4)
of Section 22 of the MPT Act are relevant for the purposes of the present
case and are set out hereunder:-
"22.Change - (1) Where any change occurs in any of the entries
recorded in the register kept under section 17, the trustee shall,
within 90 days from the date of the occurrence of such change, or
where any change is desired in such entries in the interest of the
administration of such public trust, report such change or
proposed change to the Deputy or Assistant Charity
Commissioner in charge of the Public Trusts Registration Office
where the register is kept. Such report shall be made in the
prescribed form.
[Provided that, the Deputy or Assistant Charity Commissioner
may extend the period of ninety days for reporting the change on
being satisfied that there was a sufficient cause for not reporting
the change within the stipulated period subject to payment of
costs by the reporting trustee, which shall be credited to the
Public Trust Administration Fund.]
[(1A) Where the change to be reported under sub-section (1)
relates to any immovable property, the trustee shall, along with
the report, furnish a memorandum in the prescribed form
containing the particulars (including the name and description of
the public trust) relating to any change in the immovable
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property of such public trust, for forwarding it to the Sub-
Registrar referred to in sub-section (7) of section 18.
Such memorandum shall be signed and verified in the prescribed
manner by the trustee or his agent specially authorised by him in
this behalf.]
(2) For the purpose of verifying the correctness of the entries in the
register kept under section 17 or ascertaining whether any change
has occurred in any of the particulars recorded in the register, the
Deputy or Assistant Charity Commissioner may [hold an inquiry
in the prescribed manner.]
[Provided that, in the case of change in the names and addresses of
the trustees and the managers or the mode of succession to the
office of the trusteeship and managership, the Deputy or Assistant
Charity Commissioner may pass order provisionally accepting the
change within period of fifteen working days and issue a notice
inviting objections to such change within thirty days from the date
of publication of such notice :
Provided further that, if no objctions are received within the said
period of thirty days, the order accepting the change provisionally
under the first proviso shall become final and entry thereof shall be
taken in the register kept under section 17 in the prescribed
manner :
Provided also that, if objections are received within the said period
of thirty days, the Deputy or Assistant Charity Commissioner may
hold an enquiry in the prescribed manner and record a finding, as
provided by sub-section (3) of this section, within three months
from the date of filing objections.]
(3) If the Deputy or Assistant Charity Commissioner, as the case
may be, after receiving a report under sub-section (1) and holding
an inquiry, if necessary under sub-section (2), or merely after
holding an inquiry under the said sub-section (2), is satisfied that a
change has occurred in any of the entries recorded in the register
kept under section 17 in regard to a particular public trust, [or that
the trust should be removed from the register by reason of the
change, resulting in both the office of the administration of the
trust and the whole of the trust property ceasing to be situated in
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the State], he shall record a finding with the reasons therefor [to
that effect; and if he is not so satisfied, he shall record a finding
with reasons therefor accordingly]. [Any such finding] shall be
appealable to the Charity Commissioner. The Deputy or Assistant
Charity Commissioner shall [amend or delete the entries] in the
said register [in accordance with the finding which requires an
amendment or deletion of entries] and if appeals [or applications]
were made against such finding, in accordance with the final
decision of the competent authority provided by this Act. The
amendments in the entries so made [subject to any further
amendment on occurrence of a change or any cancellation of
entries, shall] be final and conclusive.
[(4) Whenever an entry is amended [or the trust is removed from
the register] under sub-section (3), the Deputy or Assistant
Charity Commissioner, as the case may be, shall forward the
memorandum furnished to him under sub-section (1A), after
certifying the amended entry [or the removal of the trust from the
register] to the Sub-Registrar referred to in sub-section (7) of
section 18, [for the purpose of filing in Book No,1 under section
18 of the Indian Registration Act, 1908 (XVI of 1908), in its
application to the State of Maharashtra]."
41 Section 22 provides for an enquiry by the concerned Deputy
or Assistant Charity Commissioner, and, after conducting the said enquiry,
recording of findings with reasons. Section 70 of the MPT Act provides for
an Appeal against the said findings under Section 22 of the MPT Act.
Therefore, the provisions of Section 22 of the MPT Act provide for a
mechanism to consider and decide the disputes in respect of a public trust,
including the dispute in respect of the change or amendment to the
Constitution of such a trust, as in the present case. If a person is
dissatisfied with the findings under Section 22, an Appeal is provided
under Section 70 of the MPT Act.
42 An enquiry under Section 22 of the MPT Act is a judicial
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enquiry and not a formal enquiry to record changes. The Assistant or
Deputy Charity Commissioner has to go into the merits of the matters
dealt with by the Change Report and decide the same. This has been held
by this Court in Sandeep R.Meghe (supra). Paragraphs 20 and 21 of the
said Judgement are relevant and read as under:-
20. It was vehemently submitted by Mr. Shashank Manohar that the Joint
Charity Commissioner had no business to go into validity or otherwise of
the induction of 49 members in the general body. In this regard, two
judgments of this Court may be referred. The first judgment which I would
like to refer is in the case of Jagatnarayansingh Swarupsingh Chithere &
oth. Vs. Swarupsingh Education Society & anr., reported at 1980 Mh.L.J.
372.
Contents of paragraph 8 of the said judgment are reproduced for the
purpose of determination of question of law involved in the present appeals.
The para 8 runs as under :
"8.Therefore, though prima facie it appears to be a mere change, the
scheme of the Act contemplates qua the change under consideration an
inquiry of a Judicial character with an appeal therefrom to the Charity
Commissioner and a further application under section 72 to the District
Judge and yet another appeal therefrom to the High Court against which
appellate judgment of the High Court, a still further appeal may, in a given
case, lie under the letters patent. Such being the Judicial scrutiny and the
extensive grant of the inquiry under section 22 of the Act, it is obvious that
this inquiry can not be a mere factual process or one purely formal in
nature. Investigation into the legality and validity of the change is
implicit.... "
Second judgment is in the case of Karishanrao Kanhaiya Naidu & oth. vs.
Jeevraj Bhairavlal Agrawal & oth., reported at 2010(2) Mh.L.J.31.
This Court dealing with similar issue had stated in second part of
paragraph 13 as under :
"13. .....
Shri Khapre learned counsel submits that this decision is a void decision as
according to him the Charity Commissioner has no right to decide the issue
of membership. Decision has been rendered by a Charity Commissioner
and it is not challenged or set aside. It cannot be said to be an order which
is non est and one without jurisdiction. Charity Commissioner in fact has a
power to decide the question of validity enrollment of members since the
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question would always be whether the office bearers are elected by a valid
electorate. If the persons who are not validly included in electoral roll elect
then election by those persons would be invalid. Therefore, the Charity
Commissioner would certainly have a right to go into the question of
validity of electoral roll if called upon to decide the same. Charity
Commissioner has always an over all control over any trust. Therefore,
such an act on part of the Deputy Charity Commissioner to my mind was
not one without jurisdiction. ..."
21. As such, it is abundantly clear from the above stated two judgments
that an inquiry under Section 22 of the Bombay Public Trusts Act, 1950 is
judicial inquiry and is not formal inquiry only to record changes in the
schedule. The Enquiry Officer, in fact, is under obligation to examine
whether the members of the executive council whose names are to be
recorded in the schedule are validly elected or not. A reference may also
be made to a judgment of Gujrat High Court in Shantilal Khimchand &
ors. vs. Mulchand Dalichand & ors., reported at (1962) 3GLR 117
wherein Division Bench of the High Court in paragraph No.10 observed
as under :
"10. .... The fundamental question before him would thus be whether a
change has occurred and for that purpose it is obvious that he will have
to enquire whether a change has occurred in the constitution of the
trustees if the reported change relates to such a question. As a necessary
consequence he will have to see that the new trustees referred to in the
change have been appointed as trustees in whom the trust property can
legally vest. Such persons as are mentioned in the change can be trustees
provided they are appointed by a body of persons authorised to appoint a
trustee. Whenever therefore a question arises whether the body of persons
who has appointed the trustees is not in fact the real body of persons who
could appoint a trustee such a dispute will have to be enquired into and
the officer holding the inquiry will have to go into that dispute because if
an unauthorised group of persons or outsiders choose to appoint a trustee
such a person cannot be said to be a trustee at all and it cannot be said in
such a case that he has been appointed a trustee. For the purpose of
proving the correctness of the fact of a change it will have to be shown
not only that the appointment of a person has been made but also that
such person is appointed as a trustee. ...... The change contemplated by
Section 22 postulates firstly a lawful cessation of the old position and
secondly thereafter a lawful creation of a new one. If the new state of
affairs constituting the change cannot in law change or substitute the old
order there is no change at all in fact and such a supposed change cannot
be recorded. The change in other words must occur as contemplated
above before it is recorded and an inquiry into such an occurrence must
include all matters inter-related and closely connected with it and which
enable the inquiry officer to come to a conclusion regarding its existence.
Moreover the position of a trustee is a position of status and an inquiry
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into the fact of the appointment is really an inquiry into the fact whether
the appointment to hold such a status has been made. The real question in
such cases would he whether a change in fact has occurred in the legal
status and therefore would fall within the field if inquiry under Section 22
and whenever questions or disputes such as are indicated above arise it
would be necessary to inquire into such disputes and to decide them. In
the present case the inquiry into the change in the constitution of the
trustees must therefore include the question whether the persons who
were appointed were in fact appointed as person to hold the status of
trustees. Such persons could not be trustees or hold the status of trustees
as they were so appointed by persons who had no power to appoint them
and an inquiry into the question as was made by the Deputy Charity
Commissioner and the learned District Judge was therefore proper."
As such while holding enquiry under Section 22 of the Act it is incumbent
on the part of the Enquiry Officer to hold a full-fledged enquiry which
may in a given case include examination of validity or otherwise of the
electoral roll. If such procedure is not adopted by the Enquiry Officer, the
very purpose of existence of Section 22 in the Act will be frustrated. In
my opinion, in the absence of such extensive power to the Enquiry
Officer, the provisions of Section 22 of the Act will be meaningless. Since
the enquiry under Section 22 of the Act is judicial enquiry, it follows that
it is not to be conducted in a clerical manner. In my opinion, therefore,
the Joint Charity Commissioner and the learned District Judge have not
committed any error of law and jurisdiction in deciding the issue of
membership of 49 members inducted in the trust on 2nd March, 2012.
43 Further, in Church of North India (supra), the Hon'ble
Supreme Court has held that if a change notice has been given, it is for
the Assistant or Deputy Charity Commissioner to decide the same.
Paragraphs 69, 70 and 71 of the said Judgement are relevant and read as
under:-
"69:- We have noticed hereinbefore that the BPT Act provides for
finality and conclusiveness of the order passed by the Charity
Commissioner in Sections 21(2), 22(3), 26, 36, 41(2), 51(4)
and 79(2).
70:- In view of the decision of this Court in Dhulabhai (supra)
such finality clause would lead to a conclusion that civil court's
jurisdiction is excluded if there is adequate remedy to do what the
civil courts would normally do in a civil suit. In this case, we are
not concerned with a dispute as regard absolute title of the trust
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property. We are also not concerned with the question as regard
creation of any right by the trust in a third party which would be
otherwise beyond the jurisdiction of the Charity Commissioner. It
is also not a case where the plaintiffs made a complaint that the
provisions of the BPT Act were not complied with or the statutory
tribunal had not acted in conformity with the fundamental
principles of judicial procedure. In fact no order has been passed
on the Appellant's application for changes in the entries made in
the registers maintained under Section 17 of the Act. The BPT Act
provides for express exclusion of the jurisdiction of the Civil
Court. It in various provisions contained in Chapter IV a power of
inquiry and consequently a power of adjudication as regard the
list of movable and immovable trust property, the description and
particulars thereof for the purpose of its identification have been
conferred. In fact, the trustee of a public trust is enjoined with a
statutory duty to make an application for registration wherein all
necessary descriptions of movable and immovable property
belonging to the trust including their description and particulars
for the purpose of identification are required to be furnished.
Section 19 provides for an inquiry for registration with a view to
ascertaining inter alia the mode of succession to the office of the
trustee as also whether any property is the property of such trust.
It is only when the statutory authority satisfies itself as regard the
genuineness of the trust and the properties held by it, is an entry
is made in the registers and books, etc. maintained in terms of
Section 17 of the Act in consonance with the provisions of Section
21 thereof. Such an entry, it will bear repetition to state, is final
and conclusive. Changes can be brought about only in terms of
Section 22 thereof.
71 A change notice having been given, it would now be for
the appropriate authority to consider the matter and if a change
has occurred, a finding is required to be arrived which must
contain the reasons therefor. The defendants are disputing that
any such change in accordance with law was effected. An order
passed by Deputy or Assistant Charity Commissioner is
appealable. Yet again, when an amendment is made in the entry
in the register, the same would be final and conclusive. A power
even exists for holding a further inquiry.
44 In these circumstances, in our view, Section 22 of the MPT
Act is an efficacious alternate remedy available to the Petitioner to
adjudicate the issue regarding the correctness of amendment to Clause 6
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of the Constitution of Respondent No.5. Since the said efficacious
alternate remedy is available to the Petitioners, we are not inclined to
interfere in our writ jurisdiction and we think it appropriate to relegate
the Petitioners to this alternate remedy.
45 Mr. Kamat also relied upon the Judgements of the Hon'ble
Supreme Court in Maharashtra Chess Association (supra) and Andi Mukta
Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav
Smarak Trust (supra) to contend that, in cases where injustice has been
caused, a writ can be issued by this Court in its jurisdiction under Article
226 of the Constitution of India. However, these judgements do not lay
down any broad proposition that, in every case of alleged injustice, a Writ
Petition ought to be entertained by the High Court under Article 226 of
the Constitution of India. Further, whilst considering whether to exercise
its discretionary writ jurisdiction, this Court has also to consider the
availability of an efficacious alternate remedy. If such an efficacious
alternate remedy is available to the Petitioners, then even in a case where
injustice is alleged, the Writ Court, in its discretion, can definitely
relegate the Petitioners to an alternate remedy.
46 For all the aforesaid reasons, we are of the view that the
Petitioners should be relegated to the alternate remedy available to them
under Section 22 of the MPT Act.
47 Further, as far as elections are concerned, they have been
held but by virtue of ad-interim orders passed by this Court the results
have not been declared. In the light of our findings that the Petitioners
should challenge the amendment to Clause 6 of the Constitution of
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Respondent No.5 in proceedings under Section 22 of the MPT Act, and
that the present Petition ought not to be entertained, we are of the view
that the ad-interim orders passed by this Court should be vacated. The
results of the elections can be declared, the elected body can take charge
and start functioning, subject to orders that may be passed in Change
Report No. 4169 of 2022 filed before Respondent No.4. Further, the
Petitioners would also be free to challenge the election results in
proceedings arising out of the Change Report that will be filed in that
regard.
48 In view of our aforesaid conclusions, it is not necessary for us
to deal with other arguments of the parties and the other Judgements
cited by them. Accordingly, we are not dealing with the same.
49 In the aforesaid circumstances, and for the aforesaid reasons,
the following orders are passed:
(a) The present Writ Petition is dismissed;
(b) The Petitioners are at liberty to agitate the challenge to the
amendment to Clause 6 of the Constitution of Respondent No.5 in
the proceedings relating to Change Report No. 4169 of 2022 filed
before Respondent No.4. Respondent No.4 is directed to pass orders
in the said Change Report after hearing the Petitioners and other
persons who have objected to the said Change Report within a
period of eight weeks from the date of intimation of this Order;
(c) The ad-interim relief granted by this Court by its Order dated 11 th
November, 2022, to the effect that the results of the elections of
Respondent No.5 shall not be declared, is hereby vacated;
(d) We hold that the results of the election of Respondent No.5 can be
declared, the elected body can take charge and start functioning
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subject to orders that may be passed in the proceedings in Change
Report No.4169 of 2022;
(e) The Petitioners will also be at liberty to challenge the results of the
elections in proceedings under Section 22 of the MPT Act which
will be conducted pursuant to a Change Report filed in respect of
the said elections of Respondent No.5.
(f) In the facts and circumstances of the case, there shall be no order as
to costs.
(FIRDOSH P. POONIWALLA,J.) (A.S. CHANDURKAR,J.)
At this stage, the learned Counsel for the Petitioners seek continuation of
the ad-interim relief that was operating till today. This request is opposed by the learned
Counsel for the Respondents. In the facts of the case, the present judgement would
operate after a period of four weeks.
(FIRDOSH P. POONIWALLA,J.) (A.S. CHANDURKAR,J.)
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