Bombay High Court
Ravindra Shrikrishna Joshi vs Samarth Shiksha Mandal And Charity ... on 26 March, 2025
2025:BHC-AS:13993
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9299 OF 2022
Ravindra Shrikrishna Joshi
Age 70 years, Occ. Business,
R/o 1st Floor, Parvati Gangadhar
Bhuvan, 364-C/D, N.C. Kelkar Road,
Dadar, Mumbai 400 028. ....Petitioner
V/S
1 Samarth Shiksha Mandal and
Charity Trust,
PTR No.E-2278 (Mumbai)
Having office at 292, Vidyanagari Marg,
Opp. Vidyanagari Campus, Kalina
Santacruz (E), Mumbai - 400 098.
2 Vijay Shriram Joshi
Age 66 years,
Occ. Practicing Charters Accountant
3 Mrs. Sandhya Vijay Joshi
Age 64 years, Occ. Business,
Nos.2 & 3 r/o Flat No.501,
Om Shanti Harishchandra Patil Road,
Shivaji Park, Dadar (W),
Mumbai - 400 028.
4 Vikas Shriram Joshi
Age 68 years,
Occ. Business (Consultant)
5 Mrs. Jyoti Vikas Joshi
Age 60 years, Occ. Business
Nos.4 & 5 r/o 2nd Floor,
Parvati Bhavan, 364-C/D.,
N.C. Kelkar Road, Dadar (W).
6 The Joint Charity Commissioner-II
Maharashtra State, Mumbai
through Government Pleader,
High Court, Bombay.
Mumbai - 400 002. ....Respondents
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_________
Mr. Vaibhav Sugdare with Mr. Ashish Ghagde, Ms. Gunjan
Tamhane i/b M/s. Tamhane & Co. for the Petitioner.
Mr. Pravin Samdani, Senior Advocate with Mr. Nakul Jain,
Mr. Nivit Srivastava and Ms. Brena Gala i/b M/s. Maniar Srivastava
Associates for Respondent Nos.2 to 5.
Mr. S.D. Rayrikar, AGP for Respondent No.6/State.
__________
CORAM : SANDEEP V. MARNE, J.
RESERVED ON : 11 MARCH 2025.
PRONOUNCED ON : 26 MARCH 2025.
J U D G M E N T:
1. Petitioner has filed this Petition challenging the judgment and
order dated 9 May 2022 passed by Joint Charity Commissioner
allowing application filed by Respondent Nos.1 to 5 at Exhibit-16
questioning the locus-standi of the Petitioner to file Application under
Section 41-D of the Maharashtra Public Trusts Act, 1950 (MPT Act).
The Joint Charity Commissioner has held that Petitioner did not have
locus-standi to file Application No.245 of 2019 seeking inter alia
removal of Respondent Nos.2 to 5 as Trustees of Respondent No.1-
Trust and has accordingly disposed of the said Application No.245 of
2019.
2. Considering the narrow controversy involved in the present
Petition, it is not necessary to narrate facts of the case in detail.
Respondent No.1-Trust was formed and registered vide PTR No. E-
2278 Bom, with the aim of setting up educational institutions. It is
Petitioner's case that in accordance with the scheme settled under
Section 50A of the MPT Act, the father of the Petitioner-Shri
Shrikrishna Gangadhar Joshi was appointed as a Managing Trustee
for life. By the year 1985, there were apparently six trustees
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functioning in respect of Respondent No.1-Trust viz. (i) Shri
Shrikrishna Gangadhar Joshi, (ii) Shri Prabhudas Tribhovandas
Sanghvi, (iii) Shri Shriram Gangadhar Joshi, (iv) Shri Surendra
Shripad Joshi, (v) Shri Vikas Shriram Joshi and (vi) Petitioner-Shri
Ravindra Shrikrishna Joshi. There were two fractions in the Trust,
one comprising of Petitioner and his father Shri Shrikrishna
Gangadhar Joshi and the other comprising of balance four trustees.
Dispute arose between two fractions. Cross-proceedings were filed by
the two fractions for removal of the other fraction from the position of
Trustees under Section 41D of the MPT Act. The proceedings filed by
the Petitioner and his father under Section 41D of the MPT Act were
apparently withdrawn, but the other four trustees continued with the
proceedings for removal of Petitioner and his father from the position
of trustees. The said proceedings were allowed by the Joint Charity
Commissioner by order dated 24 September 1991. The challenge filed
by the Petitioner and his father to the order of the Joint Charity
Commissioner was repelled by the City Civil Court. First Appeal
No.847 of 1992 has been filed by Petitioner and his father challenging
the order of the City Civil Court, which is being decided by a separate
order passed today.
3. Parallelly, Petitioner's father had filed Change Report Nos.1010
of 1984 for reporting change about removal of four trustees belonging
to rival group and for addition of two more trustees Shri Apte and
Shri Bhole. Though the Change Report was initially accepted by the
Deputy Charity Commissioner after various rounds of litigation, the
Charity Commissioner finally dismissed Change Report No.1010 of
1984 by order dated 13 April 1994, which is subject matter of
challenge in Writ Petition No.3700 of 1994, which also is being
decided today by a separate order.
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4. In the above factual background, Petitioner filed Application No.
245 of 2019 inter alia seeking removal of Respondent Nos.2 to 5 from
the position of trusties in addition to seeking various other directions.
The Application is resisted by Respondent Nos.1 to 5 by filing Reply.
Additionally, Respondent Nos. 1 to 5 took out application at Exhibit-
16 for framing of preliminary issue relating to locus-standi of the
Petitioner to maintain Application under section 41D of the MPT Act.
The application at Exhibit-16 was opposed by the Petitioner by filing
Affidavit-in-Reply. The Joint Charity Commissioner has however
allowed the application at Exhibit-16 filed by the Respondent Nos. 1 to
5 by order dated 9 May 2022 by holding that the Petitioner did not
have locus-standi to file proceedings under Section 41D of the MPT
Act. The Joint Charity Commissioner has disposed of Application
No.245 of 2019 filed by the Petitioner. Petitioner is aggrieved by the
order dated 9 May 2022 passed by the Joint Charity Commissioner
and has filed the present Petition.
5. Mr. Sugdare, the learned counsel appearing for the Petitioner
would submit that the Joint Charity Commissioner has grossly erred
in holding that Petitioner does not have locus-standi to maintain
Application under Section 41D of the MPT Act. That Petitioner fully
fits into the definition of the term 'person having interest' as defined
under Section 2(10) of the MPT Act. He would rely upon interim order
passed in First Appeal No.847 of 1992 in support of his contention
that the Petitioner was always considered as a trustee of the Trust.
That Petitioner cannot be treated as stranger in respect of the Trust.
He would further submit that even if it is held that Petitioner is not
the current trustee, there is no dispute to the position that he was a
trustee at some point of time and in his capacity as ex-trustee, he can
maintain application under Section 41D of the MPT Act. That
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Petitioner and his father have looked after the affairs of the Trust for
a considerable period of time and both the fractions have fought a long
legal battle relating to administration of the Trust. It therefore cannot
be contended in wildest of imagination that Petitioner does not have
an interest in the Trust. In support of his contentions, Mr. Sugdare
would rely upon judgment of this Court in Ekanth Tukaramji Pise
and another vs. Rama Kawaduji Bhende and others 1 and of
Apex Court in Shree Gollaleshwar Dev and others vs. Gangawwa
Kom Shantayya Math and others.2 Relying on judgment of this
Court in Dr. Mehernosh Jamshed Jassawala vs. Dr. Lalitrao
Bhaskarrao Patil and others3, Mr. Sugdare would submit that even
a de-facto trustee is held to be persons interested in the affairs of the
Trust by this Court. Lastly, Mr. Sugdare would submit that though the
fate of the Petitioner as a trustee of the Trust hinges on decision of
First Appeal No.847 of 1992, the Petitioner would continue to possess
locus to maintain proceedings under Section 41-D of the Act
notwithstanding decision of the said First Appeal on account of his
long association with the Trust, his capacity as ex-trustee and most
importantly in his capacity as 'person interested'. He would
accordingly pray for setting aside the impugned order dated 9 May
2022.
6. The Petition is opposed by Mr. Samdani, the learned senior
advocate appearing for Respondent Nos.2 to 5. He would submit that
the application filed by the Petitioner under provisions of Section 41D
of the MPT Act itself proceeded on averment that he was an ex-
trustee. That there is express and in any case implied admission on
1 (2020) 6 Bom CR 119
2 (1985) 4 SCC 393
3 2025 SCC OnLine Bom. 89
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the part of the Petitioner in the pleadings filed before the Joint
Charity Commissioner that he is no longer trustee of the Trust. He
would submit that Petitioner has been removed from the position of
trustee on 29 April 1991 and has not functioned as trustee during past
34 long years. He would submit that Petitioner made false averments
before the Joint Charity Commissioner in his Reply filed to the
application at Exhibit-16 that the City Civil Court had stayed the
order of the Charity Commissioner dated 29 April 1991 on 12 July
1991. He would invite my attention to order dated 12 July 1991 passed
by the City Civil Court, by which Petitioner was permitted to only
participate in the meetings of the trustees during pendency of the
Charity Application before the City Civil Court. That this Court,
continued the said order dated 12 July 1991 during pendency of First
Appeal No.847 of 1992. He would therefore submit that after removal
of Petitioner by the Charity Commissioner by order dated 29 April
1991, all that was permitted was mere right of participation in
meetings of trustees on account of interim orders passed by the City
Civil Court and by this Court. That he expressly admitted before the
City Civil Court in his cross-examination that he was never re-
appointed as a trustee after his removal. Mr. Samdani would submit
that Petitioner and his family have always acted against the interest of
the Trust and therefore Petitioner cannot be treated as a person
interested in the affairs of the Trust. He would particularly highlight
the position taken by the Petitioner in suit filed by the Trust seeking
eviction from property of the Trust. That Petitioner has raised adverse
claim against the Trust in respect of the Trust's property. Mr.
Samdani would accordingly pray for dismissal of the Petition.
7. Rival contentions of parties now fall for my consideration.
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8. As observed above, there existed two fractions amongst the
trustees of Respondent No.1-Trust. One of the two fractions comprised
of Petitioner and his father. Petitioner's father treated himself as
Managing Trustee for life and it was the allegation by the rival faction
that he managed the affairs of Trust as per the whims and fancies and
acted against the interest of the Trust. Rival four trustees therefore
filed Application No.24 of 1983 for removal of Petitioner and his father
from the position of Trustees of the Trust under Section 41D of the
MPT Act. The said Application came to be allowed by the Joint
Charity Commissioner vide detailed judgment and order dated 29
April 1991. The Charity Application No.17 of 1991 filed by the
Petitioner and his father has met dismissal vide judgment and order
passed by the learned Judge of the City Civil Court on 29 April 1992.
Petitioner and his father have instituted First Appeal No.847 of 1992
challenging the order of the learned Judge of the City Civil Court
dated 29 April 1992.
9. Thus, status of Petitioner and his father as trustees of the Trust
hinges squarely on outcome of First Appeal No.847 of 1992. During
pendency of the First Appeal, Petitioner's father Shri Shrikrishna
Gangadhar Joshi has passed away on 10 October 2007 and thus the
scope of First Appeal is essentially confined to Petitioner's status as
trustee of the Trust.
10. Petitioner's Application No.245 of 2019 proceeded on the
following pleadings:
"2) That the applicant submits that he is trustee of the Samarth
Shiksha Mandal and Charity Trust from 1978 to 1991 and is now allowed to
participate in the Meetings of the trust by order of the Bombay City Civil
Court in 1991 and later confirmed by the Hon'ble High Court."
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11. Petitioner thus averred that he was the trustee from 1978 to
1991 and is now allowed to participate in the meetings of the Trust on
account of interim orders passed by the City Civil Court and by this
Court. Petitioner has thus admitted that he is no longer trustee of the
Trust after passing of order dated 29 April 1991 passed by the Joint
Charity Commissioner. He further contended that after 29 April 1991,
he is merely permitted to participate in meetings of the Trust. This
assertion by the Petitioner in paragraph 2 of his Application is
factually correct. Petitioner came to be removed from position as
trustee by Joint Charity Commissioner's order dated 29 April 1991. In
Charity Application No. 17 of 1991 filed before the City Civil Court
challenging the order dated 29 April 1991, the learned Judge of the
City Civil Court passed following interim order on 12 July 1991 in
Notice of Motion taken out by the Petitioner and his father:
"Order: Applicant no.2 in this C.A. can participate in the
meeting of the trustees to be held pending the
disposal of this C.A. With this order n/m
disposed off. N/m to be regd."
12. The interim order dated 12 July 1991 passed by the City Civil
Court continued to operate during pendency of Charity Application
No.17 of 1991, which came to be dismissed by the learned Judge on 29
April 1992. In their First Appeal No.847 of 1992, Petitioner and his
father filed Civil Application No.2963 of 1992 seeking stay of the order
of the Joint Charity Commissioner dated 29 April 1991 as well as of
the order of the City Civil Court dated 29 April 1992. This Court
however allowed the said Civil Application only in terms of prayer
clause (b) which reads thus:
"(b) pending the hearing and final disposal of first appeal No. 847 of
1992, the order passed by the City Civil Court at Bombay on
12th July 1991 in Charity Application No.17 of 1991 be
continued;
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13. Thus, during pendency of First Appeal No.847 of 1992,
Petitioner was merely allowed to participate in the meetings of the
trustees.
14. In his Reply filed to application at Exhibit-16 questioning his
locus standi to maintain proceedings under Section 41D of the MPT
Act, Petitioner made following averments in paragraphs 4.15 and 4.16:
"4.15 On 22/07/1992 the Hon'ble Bombay High Court in C.A. No.2963/1992
in first appeal no.847/1992 passed an order by consent (where Opponent
no.4 is also the respondent) viz. "pending the hearing and final disposal of
First Appeal No.847 of 1992 the order passed by the city civil court at
Bombay on 12th July 1991 in Charity Application No.17 of 1991 at (b) be
continued".
And this order has continued and the Applicant is allowed to participate in
the meetings of trustees.
The First Appeal no.847 of 1992 is also pending.
4.16 That therefore myself/Applicant continue to be Trustee and person
interested in the Trust and can file the 41-D proceedings where some gross
wrong doings are apparently seen in the Trust."
15. Thus, it was specifically averred by the Petitioner that his
capacity as a trustee as well as person interested in the Trust was on
account of pendency of First Appeal No.847 of 1992. In my view, even
this assertion on the part of the Petitioner is factually correct. His
entire connection with the Trust is on account of pendency of the First
Appeal No.847 of 1992. Thus, as admitted by Petitioner himself, his
right to maintain proceedings for removal of Respondent Nos.2 to 5 as
trustees under Section 41D of the MPT Act depends squarely on
outcome of First Appeal No.847 of 1992. Though this fact is actually
admitted in the pleadings by the Petitioner, Mr. Sugdare has made an
attempt to suggest that outcome of the First Appeal No.847 of 1992,
though may have some bearing on the present Petition, the same
cannot be a solitary factor for deciding the present Petition. I am
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unable to agree. Petitioner cannot maintain Application under Section
41D of the Act for removal of the Respondent Nos.2 to 5 unless he
succeeds in First Appeal No.847 of 1992. The moment ties of the
Petitioner get severed with the Trust on account of the dismissal of
First Appeal No.847 of 1992, he would no longer remain either a
trustee or even a 'person having interest' within the meaning of
Section 2(10) of the MPT Act. As admitted by Petitioner himself, the
interim order passed by this Court in pending First Appeal is the
reason why he justified his locus to maintain proceedings for removal
of Respondent Nos.2 to 5. It is well settled position that interim order
passed by a Court merge with the final order and when the main case
is disposed of, no benefit can be derived out of mere interim order.
This position of law is stated by the Apex Court in its judgment in
Kalabharathi Advertising vs. Hemant Vimalnath Narichania
and others4 in which it is held that no one shall suffer by act of the
Court and the injury if any caused by the act of the Court shall be
undone once a party succeeds in the final outcome. No litigant can
derive any benefit from mere pendency of the case in a Court of law.
The Apex Court held in paragraphs 15 to 21 as under:
Case dismissed/withdrawn -- Effect on interim relief
15. No litigant can derive any benefit from the mere pendency of a
case in a court of law, as the interim order always merges into the
final order to be passed in the case and if the case is ultimately
dismissed, the interim order stands nullified automatically. A party
cannot be allowed to take any benefit of his own wrongs by getting an
interim order and thereafter blame the court. The fact that the case is
found, ultimately, devoid of any merit, or the party withdrew the
writ petition, shows that a frivolous writ petition had been filed.
The maxim actus curiae neminem gravabit, which means that the act of the
court shall prejudice no one, becomes applicable in such a case. In such a
situation the court is under an obligation to undo the wrong done
to a party by the act of the court. Thus, any undeserved or unfair
advantage gained by a party invoking the jurisdiction of the court
must be neutralised, as the institution of litigation cannot be
4 2010 (9) SCC 437
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permitted to confer any advantage on a party by the delayed action
of the court. [Vide A.R. Sircar (Dr.) v. State of U.P. [1993 Supp (2) SCC 734
: 1993 SCC (L&S) 896 : (1993) 24 ATC 832] , Shiv Shankar v. U.P.
SRTC [1995 Supp (2) SCC 726 : 1995 SCC (L&S) 1018 : (1995) 30 ATC
317] , Arya Nagar Inter College v. Sree Kumar Tiwary [(1997) 4 SCC 388 :
1997 SCC (L&S) 967 : AIR 1997 SC 3071] , GTC Industries Ltd. v. Union of
India [(1998) 3 SCC 376 : AIR 1998 SC 1566] and Jaipur Municipal
Corpn. v. C.L. Mishra [(2005) 8 SCC 423] .]
16. In Ram Krishna Verma v. State of U.P. [(1992) 2 SCC 620] this Court
examined the issue while placing reliance upon its earlier judgment
in Grindlays Bank Ltd. v. ITO [(1980) 2 SCC 191 : 1980 SCC (Tax) 230 :
AIR 1980 SC 656] and held that no person can suffer from the act of the
court and in case an interim order has been passed and the
petitioner takes advantage thereof, and ultimately the petition
stands dismissed, the interest of justice requires that any
undeserved or unfair advantage gained by a party invoking the
jurisdiction of the court must be neutralised. A similar view has been
reiterated by this Court in Mahadeo Savlaram Shelke v. Pune Municipal
Corpn. [(1995) 3 SCC 33]
17. In South Eastern Coalfields Ltd. v. State of M.P. [(2003) 8 SCC 648]
this Court examined this issue in detail and held that no one shall suffer by
an act of the court. The factor attracting the applicability of restitution is
not the act of the court being wrongful or a mistake or error committed by
the court; the test is whether an act of the party persuading the court to
pass an order held at the end as not sustainable, has resulted in one party
gaining an advantage it would not have otherwise earned, or the other
party suffering an impoverishment which it would not have suffered but for
the order of the court and the act of such party. There is nothing wrong
in the parties demanding to be placed in the same position in
which they would have been had the court not intervened by its
interim order, when at the end of the proceedings, the court
pronounces its judicial verdict which does not match with and
countenance its own interim verdict. The injury, if any, caused by
the act of the court shall be undone and the gain which the party
would have earned unless it was interdicted by the order of the court
would be restored to or conferred on the party by suitably commanding the
party liable to do so. Any opinion to the contrary would lead to unjust if not
disastrous consequences.
18. The Court further held: (South Eastern Coalfields Ltd. case [(2003) 8
SCC 648] , SCC pp. 664-65, para 28)
"28. ... Litigation may turn into a fruitful industry. Though litigation is
not gambling yet there is an element of chance in every litigation.
Unscrupulous litigants may feel encouraged to approach the courts,
persuading the court to pass interlocutory orders favourable to them by
making out a prima facie case when the issues are yet to be heard and
determined on merits and if the concept of restitution is excluded from
application to interim orders, then the litigant would stand to gain by
swallowing the benefits yielding out of the interim order even though the
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battle has been lost at the end. This cannot be countenanced. We are,
therefore, of the opinion that the successful party finally held entitled to a
relief assessable in terms of money at the end of the litigation, is entitled to
be compensated...."
19. In Karnataka Rare Earth v. Deptt. of Mines & Geology [(2004) 2 SCC
783] a similar view has been reiterated by this Court observing that the
party who succeeds ultimately is to be placed in the same position in which
they would have been if the court would not have protected them by issuing
interim order.
20. The aforesaid judgments are passed on the application of legal
maxim sublato fundamento, cadit opus, which means in case a
foundation is removed, the superstructure falls.
21. In Badrinath v. State of T.N. [(2000) 8 SCC 395 : 2001 SCC (L&S) 13]
this Court observed that once the basis of a proceeding is gone, all
consequential acts, action, orders would fall to the ground automatically
and this principle of consequential order which is applicable to judicial and
quasi-judicial proceedings is equally applicable to the administrative orders.
(emphasis added)
16. By a separate judgment pronounced today, this Court has
dismissed First Appeal No.847 of 1992. Therefore, Petitioner's ouster
as a trustee ordered by the Joint Charity Commissioner vide order
dated 29 April 1991 is upheld. Petitioner has thus ceased to be a
trustee from 29 April 1991. He therefore would not have any locus to
maintain proceedings for removal of other trustees under provisions of
Section 41D of the MPT Act.
17. Petitioner would otherwise not fit into definition of the term
'person having interest' under provisions of Section 2(10) of the MPT
Act. The expression 'person having interest' has been defined under
Section 2(10) of the MPT Act as under:
"(10) "person having interest" includes-
(a) in the case of a temple, person who is entitled to attend at or is in the
habit of attending the performance of worship or service in the temple, or
who is entitled to partake or is in that habit of partaking in the distribution
of gifts thereof,
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(b) in the case of a math, a disciple of the math or a person of the
religious persuasion to which the math belongs,
(c) in the case of a wakf, a person who is entitled to receive any
pecuniary or other benefit from the wakf and includes a person who has
right to worship or to perform any religious rite in a mosque, idgah,
imambara, dargah, maqbara or other religious institution connected with
the wakf or to participate in any religious or charitable institution under
the wakf,
(d) in the case of a society registered under the Societies Registration
Act, 1860 (XXI of 1860), any member of such society, and
(e) in the case of any other public trust any trustee or beneficiary;"
18. As rightly pointed out by Mr. Samdani, Petitioner has taken
position against the interests of the Trust particularly in R.A.E. Suit
No.972 of 1994. The Trust has immovable property consisting of
ground plus four storied building at Kalina, where it runs various
schools since the year 1976. Part of the terrace floor was given to the
mother of the Petitioner to construct a residential flat by execution of
Lease Deed dated 21 April 1969 on rent of Rs.25/- per month.
Petitioner's mother was a Principal of the School and desired to
reside in the vicinity of the school. According to Mr. Samdani, she
was expected to vacate the flat after the retirement from service.
Since she failed to return possession of the flat, the Trust was
required to file R.A.E. Suit No.972 of 1994. After his mother's death
Petitioner is opposing the eviction from the said flat. Thus, the Trust
and the Petitioner are at loggerheads qua possession of the said flat
which was permitted to be used by his mother while serving as
Principal of the School. Thus, apart from losing position as Trustee,
Petitioner is found to have taken position against the interest of the
Trust and therefore he would not fit into the definition of the term
'person having interest' within the meaning of Section 2(10) of the
MPT Act.
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19. In my view dismissal of the First Appeal No.847 of 1992 by this
Court puts a final nail in the coffin. Petitioner's Application under
Section 41D of the MPT Act was premised on interim order passed in
the First Appeal. Since the First Appeal itself is dismissed, Petitioner
has no right even to participate in the meetings of the Trust. Even
during pendency of the First Appeal, mere right of participation in the
meetings of the Trust did not confer locus on the Petitioner to seek
removal of the other Trustees.
20. What needs to be noted in the present case is a unique fact
situation. The four rival Trustees have secured Petitioner's removal
from the position as trustee and his removal order has attained
finality upto this Court. As a counterblast, Petitioner was seeking
removal of the rival Trustees by filing Application under Section 41D
of the Act. By separate orders passed today, this Court has upheld
Petitioner's removal as Trustee. This Court has also upheld rejection
of Change Report No. 1010 of 1984, which sought deletion of names of
four rival Trustees. Thus, continuation of four rival trustees is upheld
by this Court by dismissing Writ Petition No.3700 of 1994. In these
circumstances, it would be impermissible to continue proceedings
initiated at the instance of the Petitioner, who has lost trusteeship,
seeking ouster of the rival Trustees, whose continuation as Trustees
is upheld by this Court by dismissing Writ Petition No.3700 of 1994.
This is yet another reason why I am not inclined to interfere in the
impugned order dated 9 May 2022 passed by the Joint Charity
Commissioner.
21. What remains now is to deal with judgments cited by
Mr. Sugdare:
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i) In Ekanth Tukaramji Pise (supra), a coordinate bench
of this Court has dealt with a case where the Respondent Nos.1
to 7 therein, in their capacity as trustees, has filed application
under Section 41D of the MPT Act against the Appellants and
during pendency of the said Application, they were removed as
trustees. This Court held in paragraph 31 as under:
31. In the above backdrop, this Court does not want to go into the
issue raised by the learned counsel for the appellants that the
respondent nos. 1 to 7 are removed from the trusteeship of the Trust,
as answer either way to the said issue will not change the result of
the present proceeding because even if they are held to be removed
as trustees, they are 'persons having interest in the Trust' which is
sufficient to maintain the application under Section 41-D of the Act,
1950. Therefore, without touching to the said issue whether the
respondent nos. 1 to 7 are trustee or not, I pass the following order.
In my view, the judgment in Ekanth Tukaramji Pise (supra),
rendered in the facts of that case, cannot be read in support of
an abstract proposition that in every case, application at the
instance of ex-trustees under Section 41D of the MPT Act for
removal of surviving Trustees, would be maintainable in law.
The present case involves unique facts and circumstances as
discussed above and loss of Petitioner's status as trustee would
necessarily result in loss of right to seek ouster of surviving
trustees.
ii) Judgment of the Apex Court in Shree Gollaleshwar Dev
(supra) is relied upon by Mr. Sugdare in support of his
contention that the definition of the expression 'person having
interest' under Section 2(10) of the MPT Act is inclusive. The
Apex Court held in paragraph 17 as under:
17. There is no warrant for the restrictive construction placed by the
Full Bench on the expression "person having interest" in a trust
occurring in Section 2(10) and Section 50 of the Act. The definition of
the expression "person having interest" in Section 2(10) being an
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inclusive one, there is no lawful justification to exclude the suit
brought by two or more trustees in the name of the idol, to recover
possession of its property against a person holding it adversely to the
trust from the purview of Section 50(ii) of the Act.
In my view, the judgment in Shree Gollaleshwar Dev would
have no application to the unique facts of the present case
where Petitioner has acted against the interest of the Trust and
has also lost his status as trustee.
iii) Lastly, my judgment in Dr. Mehernosh Jamshed
Jassawala (supra) is relied upon in support of contention that
even de facto trustee has certain rights in relation to the
management of the Trust. In my view, Petitioner has completely
misread the ratio of judgment in Dr. Mehernosh Jamshed
Jassawala. In paragraph 22 of the judgment this Court has
held as under:
22. In my view therefore, mere pendency of the Change Reports in
the present case would not mean that the change has not occurred
nor pendency of Change Report would provide an umbrella of
protection to any of the persons appointed as trustees in respect of
actions taken by them in their capacities as trustees. In the present
case, some of the Change Reports are pending for 7 long years since
the year 2018 and it is inconceivable that if any Council Member
misconducts, the Charity Commissioner is precluded from initiating
action against him/her under Section 41D of the MPT Act under
specious plea that the report in respect of the change relating to
his/her election as trustee is pending adjudication before the Deputy
Charity Commissioner. In fact, in most of the cases even while
rejecting the Change Reports, the Assistant or Deputy Charity
Commissioners consciously make a direction recognising the role of
persons whose Change Reports are rejected as de facto trustees
solely for the purpose of holding them liable in respect of the actions
taken by them while managing the affairs of the Trust. In that view
of the matter, Petitioner and Respondent Nos. 3 to 25 cannot contend
that application for their suspension, removal or dismissal under the
provisions of Section 41D of the MPT Act cannot be decided by the
Charity Commissioner until the Deputy Charity Commissioner
decides all the Change Reports. While deciding the Change Report,
the Deputy Charity Commissioner would merely ascertain the
factum as to whether change has occurred or not. Therefore, till such
ascertainment is made, persons claiming to be trustees cannot
k 17/17 2 wp 9299.22 J as.doc
escape consequences of acts done by them while being in control of
the management and affairs of the Trust. I am therefore, not inclined
to accept the submission of the Petitioner that confirmation of status
as trustee of the Trust by decision of Change Report under Section
22 of the MPT Act is a sine qua non to entertain application for
suspension, removal or dismissal of trustee under Section 41D of the
MPT Act.
The observations in paragraph 22 of the judgment are made with a
view to fasten liability arising out of Section 41D of the MPT Act to de
facto trustees whose Change Report is rejected. If any person has
taken any decision during pendency of Change Report and the
Change Report is finally rejected, such person can still be held
responsible for decisions taken during pendency of the Change
Report. The ratio of the judgment cannot be read in a reverse
situation to contend that a de facto trustee, whose Change Report is
rejected, can himself maintain proceedings under Section 41D of the
MPT Act for removal of the validly appointed trustees.
22. The conspectus of the above discussion is that no element of
perversity or patent error can be traced in the impugned order passed
by the Joint Charity Commissioner. The Petition must fail. It is
accordingly dismissed without any order as to costs.
SUDARSHAN
RAJALINGAM
KATKAM (SANDEEP V. MARNE, J.)
