Karnataka High Court
Paschim Vibhag Shikshana Mandal vs Pachim Vibhag Shikshan Mandal on 1 December, 2021
Bench: Suraj Govindaraj
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 1ST DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.101436/2018 (S-PRO)
C/W.
WRIT PETITION NO.77680/2013 (GM-KSR),
WRIT PETITION NO.81667/2013 (GM-R/C)
& WRIT PETITION NO.101972/2017 (GM-R/C)
IN WP NO.101436 OF 2018
BETWEEN
PASCHIM VIBHAG SHIKSHAN MANDAL BIJAGARI
TAL and DIST: BELAGAVI,
REPRESENTED BY ITS SECRETARY,
SRI.DAMODAR S/O DATTU MORE,
AGE: 57 EYARS,
OCC: AGRICULTURE,
R/O: BIJAGARNI,
TQ and DIST: BELAGAVI.
...PETITIONER
(BY SRI.SRINAND A PACHHAPURE, ADVOCATE,
SMT.PALLAVI S PACHHAPURE, ADVOCATE,
SRI.RAJENDRA R PATIL, ADVOCATE)
AND
1. THE COMMISSIONER
AND APPELLATE AUTHORITY
DEPARTMENT OF PUBLIC EDUCATION,
RODD ROAD, DHARWAD.
2. THE DIRECTOR (INCHARGE)
OFFICE OF THE COMMISSIONER
DEPARTMENT OF PUBLIC EDUCATION
:2:
DHARWAD
3. THE DEPUTY DIRECTOR (ADMN)
DEPARTMENT OF PUBLIC EDUCATION,
BELAGAVI.
4. THE BLOCK EDUCAION OFFICER
BELAGAVI RURAL CIRCLE,
BELAGAVI.
5. SRI.ARJUN S/O KRISHNA NILAJKAR
AGE: 71 YEARS, OCC: RETIRED TEACHER,
R/O: H.NO.831/2, SHIVA SADAN,
NEAR 2ND RAILWAY GATE,
TILAKWADI, BELAGAVI.
6. SRI.YASHAWANT S/O HANAMANT PATIL
AGE: 56 YEARS, OCC: ASST. TEACHER,
NEW ENGLISH HIGH SCHOOL,
BIJAGARNI, TQ and DIST: BELAGAVI.
7. SRI.MARUTI S/O VHALLYAPPA KAMBLE
AGE: 57 YEARS, OCC: ASST. TEACHER,
NEW ENGLISH HIGH SCHOOL, BIJAGARNI
TAL AND DIST: BELAGAVI.
...RESPONDENTS
(BY SRI.B.SHARANABASAWA, ADVOCATE FOR R6,
SRI.SANJAY S KATAGERI, ADVOCATE FOR R5,
SRI.V.S.KALASURMATH, HCGP FOR R1 TO R4,
SRI.RAVI S BALIKAI, ADVOCATE FOR R7)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER
DATED:15.03.2017 PASSED BY THE 2ND RESPONDENT CONFIRMED IN
APPEAL NO.43/2017-18 BY THE 1ST RESPONDENT VIDE ORDER
DATED:04.12.2017 MARKED AT ANNEXURE-R & S RESPECTIVELY AND
ETC.
IN WP NO.77680 OF 2013
BETWEEN
PASCHIM VIBHAG SHIKSHANA MANDAL
BIJAGARNI, 591108 TQ AND DIST:BELGAUM
TRUST REGISTERED UNDER THE
BOMBAY PUBLIC TRUST ACT, 1950
R/BY ITS PRESIDENT
SHRI.TARACHAND MONAPPA JADHAV
AGE: 73 YEARS,OCC:AGRICULTURE
BIJAGARNI 591 108, TQ AND DIST: BELGAUM
...PETITIONER
(BY SRI.F V PATIL, ADVOCATE)
AND
1. PACHIM VIBHAG SHIKSHAN MANDAL
AT POST: BIJAGARNI 591 108,
TQ AND DIST: BELGAUM,
R/BY ITS ALLEGED PRESIDENT
SHRI.GUNDU SONU BHASKAR
AGE: 73 YEARS, OCC:AGRICULTURE
BIJAGARNI 591 108,
TQ AND DIST: BELGAUM
2. THE REGISTRAR OF SOCIETIES
AND DISTRICT REGISTER
BELGAUM 590 001
...RESPONDENTS
(BY SRI.SANJAY S KATAGERI, ADVOCATE FOR R1,
SRI.V.S.KALASURMATH, HCGP FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER
DTD.22.02.2013 PASSED BY THE 2ND RESPONDENT PRODUCED AT
ANNEXURE-R ANE ETC.
IN WP NO.81667 OF 2013
BETWEEN
1. PASCHIM VIBHAG SHIKSHNA MANDAL BIJAGARNI
TQ AND DIST: BELGAUM
BY ITS PRESIDENT, SHRI.GUNDU SONU BHASKAR
2. PASCHIM VIBHAG SHIKSHNA MANDAL BIJAGARNI
TQ AND DIST: BELGAUM
BY ITS SECRETARY
SHRI.ARJUN KRISHNA NILAJKAR
...PETITIONERS
(BY SRI.SANJAY S KATAGERI, ADVOCATE)
AND
1. PASCHIM VIBHAG SHIKSHNA MANDAL BIJAGARNI
TQ AND DIST: BELGAUM
BY ITS ALLEGED SECRETARY
DAMODAR DATTU MORE
2. THE REGISTRAR OF SOCITIES,
AND DISTRICT REGISTRAR,
BELGAUM,
D.C.COMPOUND, BELGAUM
...RESPONDENTS
(BY SRI.V.S.KALASURMATH, HCGP FOR R2,
SRI.F.V.PATIL, ADVOCATE FOR R1)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER
DATED:04/03/2013 IN MISCELLANEOUS PETITION NO.295/2012
PASSED BY THE LEARNED PRINCIPAL DISTRICT JUDGE, BELGAUM AS
PER ANNEXURE-P HEREIN AND FURTHER THE ORDER DATED
09.07.2013 ON I.A.NO.II IN MISCELLANEOUS CASE NO.295/2012
PASSED BY THE LEARNED PRINCIPAL DISTRICT JUDGE, BELGAUM AS
PER ANNEXURE-S HEREIN BY ALLOWING THE WRIT PETITION AND
ETC.
IN WP NO.101972 OF 2017
BETWEEN
THE PASCHIM VIBHAG SHIKSHAN MANDAL,
BIJAGARNI, TQ AND DIST BELAGAVI,
BY ITS SECRETARY,
SRI DAMODAR DATTU MORE,
AGED ABOUT 55 YEARS,
OCC: AGRICULTURE, R/AT BIJAGARNI,
TQ AND DIST BELAGAVI.
...PETITIONER
(BY SRI.F V PATIL, ADVOCATE)
AND
1. THE BLOCK EDUCATION OFFICER (RURAL),
CHAVAT GALLI, BELAGAVI.
2. PASCHIM VIBHAG SHIKSHAN MANDA,
BIJAGARNI,
A SOCIETY REGISTERED UNDER
THE KARNATAKA SOCIETIES
REGISTRATION ACT, 1960,
REPRESENTED BY ITS PRESIDENT,
SHRI GUNDU S/O SONU BHASKAR,
AGED 75 YEARS, OCC: RETIRED,
R/AT BIJAGARNI,
TQ AND DIST BELAGAVI, 591108,
3. SRI ARJUN S/O KRISHNA NILAJKAR,
AGED 70 YEARS, OCC: RETIRED,
SECRETARY,
PASCHIM VIBHAG SHIKSHAN MANDA,
BIJAGARNI, R/AT 831/2,
RAILWAY GARTE, TILAKWADI,
BEALGAVI-590006.
...RESPONDENTS
(BY SRI.SANJAY S KATAGERI, ADVOCATE FOR R1,
SRI.V.S.KALASURMATH, HCGP FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER
PASSED BY THE XI ADDITIONAL DISTRICT AND SESSIONS JUDGE,
BELAGAVI, PASSED IN MISC. APPLICATION NO.118 OF 2015
DATED:11.01.2017, COPY AS PER ANNEXURE-'F' AND ALLOW THE
MISC. APPLICATION NO.118 OF 2015 BY ALLOWING THE PRESENT
WRIT PETITION AND ETC.
THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS, COMING UP FOR 'PRONOUNCEMENT OF ORDERS', THIS
DAY, THE COURT PASSED THE FOLLOWING:
COMMON ORDER
1. This is a sad case of 36 people who had come
together to establish an educational institution, having
succeeded in establishing an institution and making it
successful have fallen apart resulting in disputes
between two sets of groups out of the said 36 people.
2. The disputes between the said groups has resulted in
various litigations which will be adverted to during the
course of this order.
Writ Petition No.77680/2013
3. Writ Petition No.77680/2013 has been filed seeking
for the following reliefs:
i. A writ in the nature of certiorari or any other writ,
order or direction quashing the order dated
22.02.2013 in No.BEL-S530-2012-13 passed by 2nd
respondent produced at Annexure-R.
ii. Issue any other writ or direction or order the
petitioner is found entitled to.
3.1. The petitioner in Writ Petition No.77680/2013 is
Paschim Vibhag Shikshana Mandal represented
by its President Sri. Tarachand Monappa Jadhav,
who is stated to be aged about 73 years in the
year 2013.
3.2. Respondent No.1 is Paschim Vibhag Shikshan
Mandal represented by its alleged President Sri.
Gundu Sonu Bhaskar, who is also said to be
aged about 73 years in the year 2013.
3.3. In the petition, it is contended that the petitioner
was a Trust (Society) registered under the
Bombay Public Trust Act, 1950 (for short, 'BPT
Act') with the Assistant Charity Commissioner
Belagavi at Registration No.E-660 (BGM) on
20.02.1986 with Sri. Tarachand Monappa Jadhav
as a Chairman and Sri. Damodar Dattu More as a
Secretary. The main object of the Trust being to
impart education.
3.4. The said Trust runs two educational institutions
namely, (i) New English High School, Bijagarni,
Taluk and District Belagavi and (ii) Brahmaling
Vidyalay Hajagol, Taluka Chandgad, District
Kolhapur.
3.5. It is stated that Sri. Gundu Sonu Bhaskar, who is
the alleged President of respondent No.1 was the
Chairman of the petitioner-Trust till 2003 and in
the election of office-bearers held on
10.08.2003, Sri. Tarachand Monappa Jadhav was
elected as Chairman and Sri. Damodar Dattu
More was elected as Secretary and thereafter,
Sri. Gundu Sonu Bhaskar ceased to be the
President of the petitioner-Trust.
3.6. The BPT Act under which the petitioner was
registered came to be repealed with effect from
01.05.2003 and was replaced by the Karnataka
Hindu Religious Institutions and Charitable
Endowment Act, 1997 (for short, 'Endowment
Act, 1997 or Act of 1997').
3.7. In view of the same some of the Educational
Institutions/Trusts which had been registered
under the BPT Act had sought for clarification
from the Government of Karnataka regarding the
law which would be applicable to such Trusts.
Whereupon the Under Secretary to the Revenue
Department (Endowment), Karnataka
Government had issued a circular dated
19.03.2004 stating that the Trusts which are
registered under the BPT Act to which the
Endowment Act 1997 is not applicable would be
governed by the Charitable Religious Trust Act,
1920 (for short Act of 1920') by virtue of Section
85(2) of BPT Act.
3.8. Such being the case, the petitioners contend that
the petitioner is now governed by the Act of
1920 and they have been carrying on their
activities under the said Act of 1920.
3.9. It is alleged that the said Sri. Gundu Sonu
Bhaskar has floated a Society under the name
and style of 'Paschim Vibhag Shikshan Mandal'
i.e. respondent No.1 by making an application on
01.09.2012 to respondent No.2 and respondent
No.2 has registered the same which is not
permissible. No such society could have been
registered.
3.10. It is further contended that as per the bye-laws
of the petitioner-Trust, elections were to be held
once in three years. The aforesaid Sri. Tarachand
Monappa Jadhav and Sri. Damodar Dattu More
having been elected as President and Secretary,
respectively of the Trust on 10.08.2003, they
were in office for a period of three years
thereafter. Hence, Sri. Gundu Sonu Bhaskar
could not have registered a Society as sought to
be contended by him.
3.11. The petitioner-Trust in a general body meeting
held on 08.07.2012 had elected another
Managing Committee for a term of three years
from 08.07.2012 to 08.07.2015. The said Sri.
Gundu Sonu Bhaskar was not a member of the
Managing Committee.
3.12. The petitioner filed a petition under Sections 5
and 7 of the Charitable Religious Trust Act, 1920
(For brevity referred to as Act of 1920) in the
Court of the Principal District Judge, Belagavi for
approval of the Managing Committee members
in Misc.No.295/2012. The learned Principal
District Judge, Belagavi by order dated
04.03.2013 allowed the petition approving the
list of Managing Committee members.
3.13. Upon the petitioner-Trust coming to know of the
registration of the Society by the said Sri. Gundu
Sonu Bhaskar, the petitioner-Trust submitted
objections to respondent No.2, which was not
received by respondent No.2. Hence, the same
was sent through registered post
acknowledgement due.
3.14. Respondent No.2 without ascertaining and or
verifying the existence of the petitioner-Trust
under the BPT Act and now under the Act of
1920, illegally registered respondent No.1-
Society on 01.09.2012 under the Karnataka
Registration of Societies Act, 1960. (for brevity
referred to as KSR Act).
3.15. The petitioner being aggrieved by the same, had
preferred Writ Petition N0.70187/2012 which
was disposed of on 15.01.2013 keeping the
order of registration in abeyance till objections
filed by the petitioner were considered by
respondent No.2.
3.16. It is further stated that respondent No.2 issued a
notice on 02.02.2013. The petitioner filed an
application to dismiss the application for
registration filed by respondent No.1 since the
same was not permissible. The petitioner also
submitted his detailed objections to respondent
No.2.
3.17. It is contended that respondent No.2 without
holding any enquiry passed an order on
22.02.2013 reviving the order of registration
dated 01.09.2012 and it is this order dated
22.02.2013 that the petitioner is aggrieved by
and has challenged in Writ Petition
No.77680/2013.
3.18. The main grounds of challenge are that the KSR
Act is not applicable and it is the Act of 1920
which is applicable. The petitioner having been
registered under the Act of 1920, respondent
No.1 could not have registered the same under
the KSR Act.
3.19. Even otherwise, respondent No.2 in terms of the
order passed by this Court in Writ Petition
No.70187/2012 was to hold an enquiry and
thereafter decide the matter. There being no
enquiry held, mere rejection of the objection
raised by the petitioner is without any basis and
as such it is contended that the order passed by
respondent No.2 dated 22.02.2013 dismissing
the objections filed by petitioner and reviving the
registration of respondent No.1 is required to be
set aside.
3.20. Objections are filed to the said writ petition, in
the objections it is contended that the writ
petition is devoid of merits. The petitioner has
suppressed the material facts.
3.21. The filing of miscellaneous case No.295/2012
under the Act of 1920 was behind the back of
respondent No.1.
3.22. The said Act of 1920 is not applicable to the
erstwhile Trust registered under the BPT Act. The
petitioner represented by its President had not
arrayed any person as respondents in the said
miscellaneous petition and thereby suppressing
the material facts has obtained an order in its
favour without respondent No.1 and or the other
trustees of the said Trust being aware of the
reliefs sought for in the said miscellaneous
petition.
3.23. It is contended that there were 36 trustees of
the said Trust all of whom had to be informed
and put on notice as regards the proposed
registration and permission/consent to be
obtained under the Act of 1920, without which
the same could not have been filed.
3.24. The same not having been done, only a few
members of the Trust having approached the
District Court in the aforesaid miscellaneous
petition, the same was done only to usurp the
management of the Trust and to keep out the
respondent and other trustees out of
management. The same amounts to fraud and
misrepresentation and therefore, it is contended
that the petitioner has to be strictly dealt with.
3.25. The order dated 22.02.2013 passed by
respondent No.2 is sought to be supported by
respondent No.1 contending that all the aspects
relevant to be taken into consideration have
been so taken into consideration. The
registration as a Society is contended to have
been carried out in a proper and required
manner.
3.26. It is further stated that a notice had been issued
on 03.06.2012 to all the Members of
Mandal/Trust including the Members of the
petitioner. Notice having been served as regards
the proposed meeting on nearly 29 persons
personally, on others, it was sent by registered
post and the acknowledgement card thereof has
been produced.
3.27. It is further contended that in pursuance of the
notice calling for the meeting, a meeting was
held wherein it was resolved to register a Society
and thereafter the Society came to be
registered.
3.28. A challenge having been made to such
registration in Writ Petition No.70187/2012
where the Respondent was directed to carry out
an enquiry as regards Registration it is
contended by respondent No.2 that following due
procedure an enquiry was held and the
registration of respondent No.1-Society was held
to be valid and legal.
3.29. In the said objection it is contended that
challenging orders passed in Misc.No.295/2012,
a Writ Petition No.81667/2013 has been filed by
respondent No.1.
3.30. On the above basis it is stated that the Writ
petition is required to be dismissed.
Writ Petition No.81667/2013
4. Writ Petition No.81667/2013 has been filed by
Paschim Vibhag Shikshna Mandal, Bijagarni
represented by its alleged President Sri. Gundu Sonu
Bhaskar and its Secretary Sri. Arjun Krishna Nilajkar
against Paschim Vibhag Shikshna Mandal represented
by its alleged Secretary Damodar Dattu More and the
Registrar of Societies, seeking for the following reliefs:
i. Issue a writ in the nature of certiorari or any other
appropriate writ or order or direction, by quashing
the order dated 04.03.2013 in Miscellaneous
Petition No.295/2012 passed by the learned
Principal District Judge, Belgaum as per Annexure-
P herein and further the order dated 09.07.2013 on
I.A.No.II in Miscellaneous Case No.295/2012
passed by the learned Principal District Judge,
Belgaum as per Annexure-S herein by allowing the
writ petition.
ii. Issue such any other order or writ or direction that
this Hon'ble Court may deems fit in the facts and
circumstances of this case in the interest of justice
and equity.
4.1. The order or direction dated 04.03.2013 in
Miscellaneous Petition No.295/2012 passed by
the learned Principal District Judge, Belagavi has
been brought in question.
4.2. The facts stated in Writ Petition No.81667/2013
are more or less similar to that stated in Writ
Petition No.77680/2013.
4.3. It is further stated that upon repeal of the BPT
Act, the petitioner being a Trust being involved
in educational activities the only recourse
available was for registration under the KSR Act
and the Act of 1920 was not applicable to the
activities of the said Trust since the Trust did not
carry out any charitable or religious activities
and more particularly religious activities.
4.4. As regards the management committee of
respondent No.1, it is contended that though
there was an election in the year 2003, the term
of office came to end in 2006. Thereafter, there
had been no election which had been held and as
such the very operation of the educational
institution had come to standstill.
4.5. It is on account of this that disputes arose
between various members/trustees. It is further
contended that the accounts were not properly
maintained. The account books, bank passbooks,
etc., despite being sought for were not furnished
and it is in that perspective that considering that
BPT Act was not applicable in order to register a
Society, the petitioner had approached the
Registrar of Societies for registration thereof.
4.6. It is contended that in terms of the circulars
issued by the Government of Karnataka, the
erstwhile Trust was registered as a Society since
as per the clarification upon the repeal of BPT
Act it is the KSR Act that would be applicable.
4.7. There are various allegations that have been
made against respondent No.1 therein and its
office bearers contending that they have
resorted to fraud on the members of the Trust
by filing Misc.No.295/2012 behind the back of
the trustees.
4.8. During the proceedings filed in
Misc.No.295/2012, citation/paper publication
was taken out in the newspaper 'Hasiru Kranti'
which is not a well-known newspaper and the
said publication was taken out only to keep the
proceedings secret/hidden from the various
members of the Trust so that they could not
participate in the said Misc.No.295/2012 and
taking advantage of the same, orders were
secured in the said Misc. No.295/2012 approving
the list of Managing Committee submitted
therein.
4.9. When the same came to be challenged by the
petitioner by filing a review petition, objections
had been filed by the respondent contending
that no review petition could be filed by the
petitioner on account of the petitioner not being
a party to the proceedings. This fact alone would
establish that the conduct of the petitioner is
malafide and that the petitioner has resorted to
filing of miscellaneous petition behind the back
of the members/trustees to take over the
management of the Trust and the schools.
4.10. The review petition filed on 09.07.2013 came to
be dismissed on the ground that the newspaper
had wide circulation and that a review petition
could only be filed by a person who is a party to
the proceedings. Hence, on account of the said
dismissal, the petitioners in Writ Petition
No.81667/2013 are before this Court challenging
the order dated 04.03.2013 passed in
Misc.No.295/2012 as also the order dated
09.07.2013 passed on I.A.No.2 (application for
review) in Misc.No.295/2012 both passed by the
learned Principal District Judge, Belagavi.
Writ Petition No.101972/2017
5. Writ Petition No.101972/2017 has been filed by
Paschim Vibhag Shikshan Mandal represented by its
Secretary Sri. Damodar Dattu More against the Block
Education Officer, Paschim Vibhag Shikshan Mandal,
Bijagarni, a Society and Sri. Arjun Krishna Nilajkar,
Secretary. By way of the said writ petition the
following reliefs are sought for:
i. Issue a writ in the nature of certiorari or any
other writ or direction and set aside the
order passed by the XI Additional District
and Sessions Judge, Belagavi, passed in
Misc.Application No.118 of 2015 dated
11.01.2017, copy as per Annexure-'F' and
allow the Misc.Application No.118 of 2015 by
allowing the present writ petition and /or,
ii. Pass such other order or orders as this
Hon'ble Court deems fit in the facts and
circumstances of the case.
5.1. The proceedings in Misc.No.118/2015 were filed
to approve the Managing Committee of Mandal
from 05.06.2015 to 05.06.2020.
5.2. In the said proceedings, the Society and Arjun
Krishna Nilajkar had filed objections contending
that the same were not maintainable. Evidence
was led and the learned District and Sessions
Judge, Belagavi dismissed the miscellaneous
petition.
5.3. It is contended that the said order passed by the
learned District and Sessions Judge, Belagavi is
without considering the earlier orders more
particularly that in Misc.No.295/2012
aforementioned while dealing with the facts in
Writ Petition No.81667/2013.
5.4. It is therefore contended that the learned District
Judge ought to have allowed Misc.No.118/2015
and approved the Managing Committee.
5.5. Objections have been filed by respondent Nos.2
and 3 contending that in the earlier proceedings
filed in Misc.No.295/2012 the respondents had
not been made as a party. The facts relating to
the challenge and filing of the review petition
had not been mentioned.
5.6. It is contended that a Society had already been
registered and in fact, the Trust registered under
the BPT Act provided for the applicability of
Sections 9, 10 and 13 of the KSR Act, insofar as
any amendments to the bye-laws are concerned
and the applicability of Sections 21, 22 and 23 of
the KSR Act insofar as the amalgamation of the
Trust is concerned. Hence, the very Trust
document providing for the applicability of the
KSR Act upon the repeal of the BPT Act, there
was a requirement to register the same under
the KSR Act which has been so done.
5.7. All these facts having been suppressed in
Misc.No.118/2015, the same having been
brought to the notice of the learned Principal
District Judge, the learned Principal District
Judge has taken all of them into consideration
and rightly dismissed the said petition. Hence, it
is contended that this Court is not required to
intercede in the matter.
Writ Petition No.101436/2018
6. Writ Petition No.101436/2018 has been filed seeking
for certiorari to set aside the order bearing
No.JI3/SHASHIA/MUSHI/YHP/67/2013-14/4342 dated
15.03.2017 passed by respondent No.2 confirmed in
Appeal No.43/2017-18 by respondent No.1 therein.
The petitioner in Writ Petition No.101436/2018 is
Paschim Vibhag Shikshan Mandal represented by its
Secretary Sri. Damodar Dattu More and has been filed
against the Commissioner and Appellate Authority of
Public Education, Director, Department of Public
Education, Deputy Director, Department of Public
Education, Block Development Officer, Sri. Arjun
Krishna Nilajkar and Sri. Yashawant Hanamant Patil
and Sri. Maruti Vhallyappa Kamble, who has been
impleaded subsequently. In the writ petition the below
reliefs are sought for:
i. To issue a writ of certiorari setting aside the
order bearing
No.JI3/SHASHIA/MUSHI/YHP/67/2013-14/4342
dated 15.03.2017 passed by the 2nd respondent
confirmed in Appeal No.43/2017-18 by the 1st
respondent vide order dated 04.12.2017 marked at
Annexure-R & S respectively and pass any other
order as deems fit by this Hon'ble Court, in the
ends of justice..
6.1. The basic grounds in the aforesaid writ petition
are that on account of allowing of the
proceedings in Misc.No.295/2012, it is the Trust
registered under the Act of 1920 which is in
charge of the management of the educational
institution.
6.2. The Society which has been registered under the
Societies Registration Act has no such power to
administer the educational institution. Though
the Society is not in charge of the management,
the Society is conducting the management of the
educational institutions as regards which there
have been various complaints filed in the office
of the Commissioner of Education as also before
the Deputy Director of Public Instructions.
6.3. The actual management is vested with the Trust
under the Act of 1920 who had promoted Sri.
Maruti Vhallyappa Kamble as Headmaster of the
English High School by resolution dated
07.09.2014 and sent the same to respondent
No.4-Block Education Officer for approval.
However, the said Block Education Officer
rejected the proposal on the ground that a Writ
Petition No.81667/2013 was pending before this
Court. However, permitted withdrawal of salary
by Sri. Maruti Vhallyappa Kamble.
6.4. It is contended that the Block Education Officer
ought to have approved the promotion of
Sri.Maruti Vhallyappa Kamble.
approved the appointment of respondent No.6 as
the Headmaster on a proposal being sent by the
Society. Challenging the same, Writ Petition
No.108755/2014 had been filed. The said
petition came to be withdrawn accepting that
Sri.Maruti Vhallyappa Kamble could not be
appointed as a Headmaster. The said writ
petition came to be withdrawn.
6.6. It is contended that the operation and
management of the educational institution is
being run by removed members of the Trust,
who have no locus standi to do so. Reference is
made to the orders passed in Misc.No.295/2012,
the revision application etc.
6.7. In the meanwhile, the aforesaid petition has
been filed aggrieved by the Society having
suspended Sri.Maruti Vhallyappa Kamble
(respondent No.7) and approved the promotion
of Sri.Yashawant Hanamant Patil (respondent
No.6) which was approved by respondent No.3
and confirmed by respondent No.1.
7. The above being the various challenges which have
been made in the various petitions filed, Sri.F.V.Patil,
learned counsel for the petitioner in Writ Petition
Nos.77680/2013, 101972/2017 has submitted as
under:
7.1. Paschim Vibhag Shikshana Mandal has been
registered in the year 1986 more particularly on
20/2/1986 under the BPT Act with 36 members
running two schools on the repeal of the BPT Act
in terms of the clarification issued by the under
Secretary, Revenue Department dated
19/3/2004, Petitioner in WP No.77680/2013
would be governed by the Act of 1920, the
petitioner had approached the District Judge in
terms of Sections 6 and 7 of the Act 1920 for
approval of the Managing Committee.
7.2. He submits that the said registration of the
petitioner trust is a deemed registration in
pursuance of the clarification issued by the under
Secretary, Revenue Department, arising out of
and repeal of the BPT Act and there was no
requirement for a separate registration under
the KSR Act in terms of Annexure-B to the
petition, namely, the original constitution.
7.3. The trustees are the final authority insofar as the
running of the institution is concerned. The
trustees have decided to adopt the Act of 1920
in pursuance of the direction issued by under
Secretary, Revenue Department, the same
cannot be questioned by anyone much less the
respondent.
7.4. By relying on the affidavit filed by Sri. Gundu
Sonu Bhaskar in OS No.220/2005, he submits
that the said Gundu Sonu Bhaskar has accepted
that Sri. Tarachanda Monappa Jadhav is the
President and Sri. Damodar More is the
Secretary of the Trust and that the said body is
in control and management of the Trust. He
refers to Clause 8(ii)(b) of the original
constitution of the Trust to contend that trustees
have the powers to hold an enquiry and take
disciplinary action including cancellation of
membership of the members of the institution
and it is in pursuance thereof that membership
of Sri. Gundu Sonu Bhaskar and several others
has been cancelled by relying on Clause 33 of
the original constitution, he submits that there is
no dissolution which has occurred as regards the
Trust in question.
7.5. In pursuance of the enquiry, 16 members have
been removed and it is these trustees who are
acting against the interest of the Trust and have
formed separate institution which is not
maintainable. He relies on Section 85 of the BPT
Act to contend that in terms of the BPT Act,
Religious Endowment Act 1863 has been
repealed, so was the Act of 1920, repealed.
7.6. On the repeal of the BPT Act, the Act of 1920
came back into operation and the said Act would
apply to the petitioner trust.
7.7. The repeal was not as much a repeal since the
Act of 1920 in terms of schedule-A to the BPT
Act was kept in abeyance and it is only
Charitable and Religious Act 1863 which has
been repealed.
7.8. He submits that by virtue of Section 78 of the
Act of 1997, the BPT Act came to be repealed
and therefore, it is the Act of 1920, which came
into operation and no fault can be found with the
action taken by the petitioners.
7.9. He relies upon the decision of the Bombay High
Court in Shyamabai Surajkaran Joshi and
Others etc. Vs. Madan Mohan Mandir
Sanstha reported in AIR 2010 Bombay 88,
more particularly para 18 thereof which is
reproduced hereunder for easy reference:-
18. In other words, a society formed for
religious or charitable purpose or for both
and registered under the Societies
Registration Act, 1860 mentioned in the
latter part of the definition clause of Section
2(13) of the Bombay Public Trusts Act, 1950
by itself will not get the status of "public
trust" within the meaning of Section 2(13) of
the Bombay Public Trusts Act, 1950 unless it
receives a certificate under Rule 8 of the
Bombay Public Trusts Rules, 1951. However,
since the word "and" is used in the
disjunctive sense, "public trust" is not
required to be registered under the
provisions of Societies Registration Act,
1860. The learned single Judge of this Court
in para (9) of the judgment in the case of
Suresh Ramniwar Mantri and another Vs.
Mohd. Iftequaroddin S/o Mohd. Badroddin
(1999 (2) Mah LJ 131) has observed thus:
"9. ... It is, therefore, clear that a
society registered under the
Societies Registration Act will come
within the ambit of the term "Public
Trust" only after it has received a
certificate of registration under
Rule 8 of the Bombay Public Trusts
Rules, 1951, on completion of the
enquiry under Section 19 and an
order is passed under Section 20 of
the Tusts Act..."
We, therefore, answer the second
question referred to us by Justice A.B.
Chaudhari in negative."
7.10. By relying on the same he submits that there is
no requirement of Registration of Society and
the Trust would continue to operate as one
registered under the Act of 1920.
7.11. He also relies upon the decision in Vinodkumar
M. Mulavia etc. Vs. Maganlal Mangaldas
Gameti and others reported in 2013 AIR SCW
5782, more particularly paras 15 and 19 thereof
which are reproduced hereunder for easy
reference:-
15. In addition to the above, there are evident
lapses in the formation of CNI which have been
observed by the High Court in paragraph 17 of its
judgment and we also concur with the view of the
High Court wherein: Firstly, it is alleged that CNI was
formed on November 26, 1970 post Resolution 70/08
dated February 17, 1970, however the same was
sought to be registered in 1980 and given registration
with effect from 1971. The same is contrary to the
requirements as laid down in Section 18 of the BPTA
which requires registration of a public trust within
three months of a creation as per clause (b) of sub-
section (4). The Act is also silent about the registration
with retrospective effect. But the dispute is not
regarding the interpretation of the procedure of
registration under the BPTA, therefore, we refrain from
going further into the details of the same. The second
lapse which exists is that in 1976, the Church of North
India Trust Association (CNITA) was formed under the
Indian Companies Act, 1956 and appointed as the
trustee of CNI; a trust allegedly existing since 1971
which succeeded FDCB in 1970 which was allegedly
dissolved and its annual meetings discontinued since
1971. A suit for declaration of CNI as the successor of
FDCB was filed in 1979 (held not to be maintainable in
Church of North India (supra)). During the pendency
of the 1979 suit, Change Report Nos. 44 of 1981 and
665 of 1981 were filed in 1980. This situation created
a scenario where FDCB simply vanished after the 1970
resolutions and who managed its properties till CNITA
is an unresolved question, identified by this Court in
Church of North India (supra) which stated that
"....Furthermore, there is nothing on record to show
the mode and manner of the management and control
of the trust property." Subsequently this Court in the
abovementioned case discussed the procedure under
the BPTA which is reproduced as under:
"70.....The BPT Act provides for
express exclusion of the jurisdiction of
the civil court. In various provisions
contained in Chapter IV, a power of
inquiry and consequently a power of
adjudication as regards 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
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."
The above facts clearly show non-compliance
with the procedure under BPTA. The argument that as
per Article 254 of the Constitution, the Societies
Registration Act overrides the BPTA or that the
Societies Registration Act and BPTA are in conflict,
does not stand either, since both the statutes are not
in conflict with each other. On the contrary, they are
in consonance with each other regarding the
administration and regulation of public and religious
trusts.
19. Firstly, we would answer the issue of the
jurisdiction of the Charity Commissioner and lower
courts. The choices of the community herein are the
purported resolutions and deliberations. These
resolutions are an attempt to effect a change in
management and ownership of the FDCB trust
properties in a manner which is against the law of the
land. However, it is the case of the appellants that as
per Articles 25 and 26, they are free to manage their
own affairs and have relied on judgments of this Court
in The Commissioner, Hindu Religious Endowments,
Madras v. Sri Lakshmindra Thirtha Swamiar of Sri
Shirur Mutt [AIR 1954 SC 282] and Ratilal Panachand
Gandhi & Ors. v. State of Bombay & Ors. [AIR 1954
SC 388].
7.12. By relying upon the above and by referring to
Section 2 of the Act of 1920 he submits that it is
the District Court which would have the
jurisdiction insofar as the Trust is concerned, and
therefore, the proceedings for direction can be
made under Section 3 only to the said Court.
7.13. Insofar as the petition in WP No.81667/2013, he
again by referring to Section 7 of the Act of 1920
would submit that the management has been
determined by way of the declaration made by
the District Court, it is said management which
could take necessary action and the same cannot
be faulted with.
7.14. The petitioner has rightly approached the District
Court and obtained necessary orders. The
revision petition filed by the respondent upon
hearing was dismissed and therefore attained
finality.
7.15. The challenge made in WP No.81667/2013 to the
said order is not sustainable since the order
passed is in compliance with Sections 3 and 7 of
the Act of 1920.
7.16. Insofar as WP No.101972/2017 is concerned, he
submits that in the light of the order passed in
Misc.P.No.295/2012, no contrary order could
have been passed in Misc.Aplicaiton
No.118/2015 and the Additional District and
Sessions Judge, Belgavi has not considered this
aspect in the proper and required manner. The
said Court ought to have applied the reasoning
in Misc.No.295/2012 and if the same had been
applied Misc. Application No.118/2015 which was
one in a series of applications filed ought to have
been allowed.
8. Per contra, Sri Sanjay S.Katageri, learned counsel
appearing for the petitioner in WP No.81667/2013
would submit that
8.1. All the actions taken by the Trust is improper
and not in accordance with law. He submits that
all the trustees have been appointed for life, 36
members being trustees for life, none of them
could have been removed as sought to be done
by the Trust and the same is improper.
8.2. By referring to Chapter 3 of the original
Constitution of the Trust constituted under the
BPT Act, he submits that any vacancy has to be
filled up by a member elected from the General
Body, even the said vacancies have not been
filled up by the trustees resulting in the Trust not
functioning.
8.3. By referring to Clauses 26 and 28 of the Original
Constitution, he submits that even the Trust was
governed by the provision of the Karnataka
Societies Registration Act 1960, in as much as
an amendment to the constitution, Rules and
Regulation had to be done in consonance and
compliance with the Proviso to Sections 9, 10
and 13 of the KSR Act 1960 and any
amalgamation and resolutions relating thereto
had to be made in accordance with Sections 21,
22 and 23 of the KSR Act 1960.
8.4. Even when the Trust had been registered under
the BPT Act, it is the KSR Act that was applicable
for the functioning of the Trust, since the Trust
was carrying on educational activities and not
Religious or Charitable activities.
8.5. Subsequent to the clarification issued by the
under Secretary, Revenue Department, there is
a qualification prescribed by the Director, Hindu
Religious and Charitable Endowments Authority
to state that it is only a Religious trust which
could be registered under the Act of 1920 and
insofar as any other trust registered under the
BPT Act, involved in any other activities other
than religious activities, the registration ought to
be made by the District Registrar in terms of the
KSR Act. Therefore, he submits that the
registration of the Society is proper and correct,
the Act of 1920 is not applicable and it is the
KSR Act 1960 which is applicable.
8.6. As regards the contention of Sri. F.V. Patil that
trustees have been removed, he submits that
the trustees have not been issued with any
notice, nor an opportunity granted to them and
as such the contention of the Trust in this regard
cannot be accepted.
8.7. He however submits that subsequent to the
repeal of the BPT Act, A notice had been issued
on 3/6/2012 in terms of Annexure D2 to WP
No.81667/2013 which has been received by 29
persons in person and as regards balance
members who are alive as on that day, notice
has been issued by registered post
acknowledgement due which was also received
by them informing the agenda for the meeting to
be held on 23/6/2012 at 2.00 p.m.
8.8. Notice had been served on the trustees who had
registered the Trust under the Act of 1920,
despite which they did not participate in the
meeting.
8.9. In the meeting held on 23/6/2012, the Managing
Committee was elected. It was also decided that
an application would be made for registration
under the KSR Act. A committee was formed for
the purpose of the drafting of the bye-laws of
the institution and it pursuant thereto that the
Registration under the KSR Act took place, which
is proper and correct and in accordance with law.
8.10. The requirement of Registration under the KSR
Act arose on account of the operation of law due
to the repeal of the BPT Act, the registration
being done properly being a mandate of law can
not be interfered with.
8.11. As regards order passed in Misc.No.295/2012,
he submits that at that point of time proceedings
in W.P.No.70187/2012 were pending which had
been suppressed. If the same had been informed
to the District Court, the District Court would
have been aware of the objections of the other
trustees and would never have granted
permission as done, in Misc.No.295/2012.
8.12. He further submits that in order to obtain orders
behind the back of the trustees a paper
publication was taken out in newspaper Hasiru
Kranti, which has no particular circulation and
therefore, the entire action resorted to is
fraudulent and to usurp the properties of the
Trust.
8.13. W.P.No.70187/2012 came to be allowed on
15/1/2013 by virtue of which the registration of
the society was kept in abeyance till objections
of the petitioners were considered pursuant to
that the objections were considered and the
District Registrar vide Order dated 22/2/2013
under Annexure-M to WP.No.81667/2013
confirmed the Registration of the Society.
8.14. In view of the same, he submits that the
objections having been considered and rejected
the Order of registration of Society has attained
finality, whereas the Order passed in
Misc.No.295/2012, was behind the back of the
members and therefore, the same cannot be
relied upon.
8.15. Insofar as WP No.101436/2018 is concerned, he
submits that respondent No.7 has retired and as
such, the said petition has become infructuous
and would not be required to be considered in as
much as respondent No.7 retired on 31/7/2021.
8.16. In the above background, he submits that WP
No.81667/2013 is required to be allowed and
other writ petitions are liable to be dismissed.
9. Sri. Ravi S. Balikai, learned counsel appearing for
respondent No.7 in WP No.101436/2018 submits that
respondent No.7 has been appointed by the trustees
and he has discharged his duties, therefore he is
entitled for the salaries to be paid to him until his
retirement which has not been paid by the society and
the society has received grant in aid.
10. In rejoinder Sri. F.V.Patil, learned counsel submitted
that it is the 1920 Act and not KSR Act which is
applicable and as such, he submits that WP
Nos.77680/2013, 101972/2017 have to be allowed.
11. Heard Sri. F.V.Patil, Sri. Sanjay S.Katageri, Sri. Ravi
S. Balekai, learned counsels, perused papers.
12. The points that arise for determination are:
(1) What is the scope and effect of Section
3 and 7 of the Hindu Religious and
Charitable and Religious Trust Act
1920?
(2) To what institutions was the Bombay
Public Trust 1950 Applicable?
(3) What is the effect of bringing into
force the Karnataka Hindu Religious
Institutions and Charitable Endowment
Act, 1997?
(4) What is the effect of the Repeal of the
BPT Act?
(5) Whether on the repeal of the Bombay
Public Trust Act, the Trust registered
under the said Act, would have to be
registered under the Hindu Religious
and Charitable and Religious Trust Act
1920 or under the Karnataka Society
Registration Act 1960?
(6) In the present case, whether the
registration of the society under the
Karnataka Society Registration Act
1960 is proper or not?
(7) Whether the Order passed in Civil
Misc.No.295/2012 confirmed in the
review petition is proper and correct?
(8) Whether the Order passed in
Misc.P.No.118/2015 is proper and
correct?
(9) Whether respondent No.7 in WP
No.101436/2018 could be entitled to
his salary, if so from whom?
(10) In the above circumstances, whether
there is any enquiry which is required
to be conducted in terms of Section 25
of the Karnataka Societies Registration
Act, 1960?
(11) What order
13. I answer the above points as under:
14. Answer to Point No.1 What is the scope and
effect of Section 3 and 7 of the Hindu Religious
and Charitable and Religious Trust Act 1920?
14.1. The object and reason of the Act of 1920 is as
under:
Statement of objects and reasons
"The Religious Endowments Act, 1868 (XX of 1863), was
the result of the decision of the Government of divest its
officers of all direct superintendence and control of
religious and charitable endowments in India, transferring
their functions to manager or managing committees and
merely making provision for intervention by the Civil
Courts on application made by any person interested in a
particular institution. This policy, however, did not long
remain unchallenged, and since 1866 there have been
constant complaints, especially in the Madras Presidency,
as to the inefficacy of the Act to prevent the squandering
or misappropriation of the funds of such endowments,
and suggestions for its amendments have from time to
time been made to the Government of India. Mr. Ananda
Charlu in 1897, Mr. Srinivasa Rao in 1903 and Dr.(now
Sir) Ras Behari Ghosh in 1908, for example, promoted
amending Bills, but none of them became law. More
recently in 1911, a private Bill was introduced in Bombay
Legislative Council by the Hon'ble Sir Ibrahim Rahimtoola,
to provide for the registration of all charitable trusts,
exceeding a certain value and for the annual audit of the
accounts for such trusts by auditors approved by
Government. Endowments of a purely religious nature
were not included but the contents of he Bill made it clear
that the ultimate object was to press for legislation for
religious as well as secular trusts. About the same time a
private Bill was promoted by two non-official members of
the Madras Legislative Council to provide for the regular
publication of the accounts of all religious endowments
above a certain value and for their audit by an officer to
be appointed by the District Judge. These proposals led
the Government of India to reconsider the policy in force
since 1863. In March 1914, the whole subject was
discussed at a mixed conference of official and non-official
gentlemen representing the Hindu, Muhammadan, Sikh
and Buddhist communities. The present Bill, which is the
outcome of the deliberations of that conference, has as its
objects the simplification and cheapening of the legal
processes by which persons interested can obtain
information regarding the working of both religious and
charitable trusts, and the exercise of a more efficient
control over the action of trustees. The Bill provides that
any person interested in a trust may apply by petition to
the District Judge for an order directing the trustee to
furnish him with information as to the nature and objects
of the trust and of the value, condition, management and
application of the subject matter of the trust, and of the
income belonging thereto, or as to any of these matters,
and also directing that the accounts of the trust shall be
examined and audited. Failure to comply with such an
order of the Court would be deemed a breach of trust. In
order, however, that such applications should not lead to
protracted and contentious litigation, the Court is
debarred from trying any question of title between the
petitioner and any person claiming title to the trust, or
any question as to the existence or extent of any trust.
Under the Bill, it will be left to those interested to move in
the matter; the initiative will not rest with Government,
nor will anything be done where no one is sufficiently
interested to take action. Where the Court is moved the
proceedings will be simple and expeditious; they will be
held in the presence of all parties, and the order passed
will be a judicial order of the Court. Further, in order to
meet the objection that recourse to Section 14 of the Act
of 1863 or Section 92 of the Code of Civil Procedure
1908, involves expensive litigation the Court is
authorized, on the application of the plaintiff and after the
defendant is heard, to direct the defendant either to
furnish security for the expenditure incurred or likely to
be incurred in bringing and maintaining the suit or to
deposit in Court an amount sufficient to meet such
expenditure.
It will be observed that the draft Bill only embodies
general principles. It is intended that such details as the
institution of some public record of the facts regarding
these trusts, the publication of audited accounts, and the
relaxation of some of the conditions governing
committees constituted under the Act of 1863, e.g., the
tenure of the membership of such committee should be
left to Provincial Legislatures".
14.2. Section 3 of the Act of 1920 reads as under:
3. Power to apply to the Court in respect of
trusts of a charitable or religious nature.-- Save
as hereinafter provided in this Act, any person having
interest in any express or constructive trust created or
existing for public purpose of a charitable or religious
nature may apply by petition to the court within the
local limits of whose jurisdiction any substantial part of
the subject-matter of the trust is situate to obtain an
order embodying all or any of the following directions,
namely:--
(1) directing the trustee to furnish the petitioner
through the Court with particulars as to the nature and
objects of the trust, and of the value, condition,
management and application of the subject-matter of
the trust, and of the income belonging thereto, or as
to any of these matters, and
(2) directing that the accounts of the trust shall be
examined and audited: Provided that no person shall
apply for any such direction in respect of accounts
relating to a period more than three years prior to the
date of the petition.
14.3. Section 5 of the Act of 1920 reads as under:
5. Procedure on petition.--
(1) If the Court on receipt of a petition under section
3, after taking such evidence and making such inquiry,
if any, as it may consider necessary, is of opinion that
the trust to which the petition relates is a trust to
which this Act applies, and that the petitioner has an
interest therein, it shall fix a date for the hearing of
the petition, and shall cause a copy thereof, together
with notice of the date so fixed, to be served on the
trustee and upon any other person to whom in its
opinion notice of the petition should be given.
(2) On the date fixed for the hearing of the petition, or
on any subsequent date to which the hearing may be
adjourned, the Court shall proceed to hear the
petitioner and the trustee, if he appears, and any
other person who has appeared in consequence of the
notice, or who it considers ought to be heard, and
shall make such further inquiries, if any, as it thinks
fit. The trustee may and, if so required by the Court,
shall at the time of the first hearing or within such
time as the Court may permit present a written
statement of his case. If he does present a written
statement, the statement shall be signed and verified
in the manner prescribed by the Code of Civil
Procedure 1908 (5 of 1908), for signing and verifying
pleadings.
(3) If any person appears at the hearing of the
petition and either denies the existence of the trust or
denies that it is a trust to which this Act applies, and
undertakes to institute within three months a suit for a
declaration to that effect and for any other appropriate
relief, the Court shall order a stay of the proceedings
and, if such suit is so instituted, shall continue the
stay until the suit is finally decided.
(4) If no such undertaking is given, or if after the
expiry of the three months no such suit has been
instituted, the Court shall itself decide the question.
(5) On completion of the inquiry provided for in sub-
section (2), the Court shall either dismiss the petition
or pass thereon such other order as it thinks fit:
Provided that, where a suit has been instituted in
accordance with the provisions of sub-section (3), no
order shall be passed by the Court which conflicts with
the final decision therein.
(6) Save as provided in this section, the Court shall
not try or determine any question of title between the
petitioner and any person claiming title adversely to
the trust
14.4. Section 7 of the Act of 1920 reads as under:
7. Powers of trustee to apply for directions.--
(1) Save as hereinafter provided in this Act, any
trustee of an express or constructive trust created or
existing for public purpose of a charitable or religious
nature may apply by petition to the Court, within the
local limits of whose jurisdiction any substantial part of
the subject-matter of the trust is situate, for the
opinion, advice or direction of the Court on any
question affecting the management or administration
of the trust property, and the Court shall give its
opinion, advice or direction, as the case may be,
thereon: Provided that the Court shall not be bound to
give such opinion, advice or direction on any question
which it considers to be a question not proper for
summary disposal.
(2) The Court on a petition under sub-section (1), may
either give its opinion, advice or direction thereon
forthwith, or fix a date for the hearing of the petition,
and may direct a copy thereof, together with notice of
the date so fixed, to be served on such of the person
interested in the trust, or to be published for
information in such manner, as it thinks fit.
(3) On any date fixed under sub-section (2) or on any
subsequent date to which the hearing may be
adjourned, the Court, before giving any opinion,
advice or direction, shall afford a reasonable
opportunity of being heard to all persons appearing in
connection with the petition.
(4) A trustee stating in good faith the facts of any
matter relating to the trust in a petition under sub-
section (1), and acting upon the opinion, advice or
direction of the Court given thereon, shall be 4
deemed, as far as his own responsibility is concerned,
to have discharged his duty as such trustee in the
matter in respect of which the petition was made.
14.5. Section 9 of the Act reads as under:
9. Savings.-- No petition under the foregoing
provisions of this Act in relation to any trust shall be
entertained in any of the following circumstances,
namely:--
(a) if a suit instituted in accordance with the
provisions of section 92 of the Code of Civil Procedure
1908 (5 of 1908), is pending in respect of the trust in
question;
(b) if the trust property is vested in the Treasurer of
Charitable Endowments, the Administrator General,
the Official Trustee, or any Society registered under
the Societies Registration Act, 1860 (21 of 1860); or
(c) if a scheme for the administration of the trust
property has been settled or approved by any Court of
competent jurisdiction, or by any other authority
acting under the provisions of any enactment.
14.6. As per the statement of objects and reasons, it is
clear that the Act of 1920 is to provide for more
effectual control over the administration of the
charitable and religious trust and in order to
provide facilities for obtaining of information
regarding trust created for the public purpose of
a charitable or religious nature and to enable the
trustees of such Trust to obtain directions from
the Court on certain matters. Thus, the Trust
created for public purposes is required to be of
charitable or religious nature.
14.7. In terms of Section 3 extracted hereinabove, any
person having an interest in any express or
constructive trust, created or existing for the
public purposes or a charitable or religious
nature may petition to the Court within the local
limits in which the subject matter is situate,
seeking for the directions stated therein namely,
direction to the trustees to furnish the petitioner
particulars as to the nature and objects of the
Trust, value, condition, management, subject
matter and income of the Trust, as also for a
direction for the accounts of the Trust to be
examined and audited for a period of three
years. Section 5 provides a procedure on how
such a petition is to be filed.
14.8. Section 7 provides for the powers of the trustee
to apply for a direction. A trustee may apply to
seek for opinion, advice or direction of the Court
on any question affecting the management or
administration of the trust property, on which,
the Court is required to give opinion or advice or
direction. The Court could, however, decline to
give such opinion or advice or direction, if it
considers that the same is not proper for
summary disposal. When a trustee acts on such
opinion, advice or direction is deemed to have
discharged its duty as such trustee.
14.9. Thus, from the examination of the above
provisions, it is clear that the Act of 1920 deals
with better administration of the Charitable and
Religious Trusts and in terms of Section 7, a
trustee could apply seeking for a direction, which
could be refused, if the court were of the opinion
that, such opinion cannot be given in a summary
manner. An opinion in my considered opinion
could not be given in a summary manner or in
summary disposal if there are any disputed
questions of fact or law involved in the matter.
14.10. A perusal of Act of 1920 and the provisions
which have been extracted hereinabove would
categorically and unimpeachably establish the
trust created for public purposes of charitable or
a religious nature would come under the
provision of Act of 1920. However, the said Act
has a limited application inasmuch as under
Section 7, a trustee could approach the said
Court having jurisdiction over the trust seeking
for opinion, advice or direction which should be
rendered by the said Court if it could be given in
a summary manner with summary disposal of
the proceedings.
14.11. Thus, a Court exercising powers under the Act of
1920 cannot issue opinion, advice or direction if
the matter cannot be summarily disposed of.
Therefore, the two issues which would debar the
application 1920 i.e., if the Trust does not carry
out charitable or religious activities, or if the
opinion, advice or direction cannot be given by a
summary disposal, the Court is not bound to
give such opinion.
15. Answer to Point No.2: To what institutions was
the Bombay Public Trust 1950 Applicable?
15.1. Section 1 of the BPT Act (for short 'BPT Act ')
reads as under:
1. Short title, extent, operation and
application : (1) This Act may be called the
Bombay Public Trusts Act, 1950.
(2) It shall extend to the whole of the State of
Maharashtra.
(3) This Act shall come into force at once; but the
provisions thereof shall apply to a public trust or
any class of public trusts on the date specified in
the notification under subsection (4).
(4) The State Government may, by notification in
the Official Gazette, specify the date on which the
provisions of this Act shall apply to any public trust
or, any class of public trusts; and different dates
may be specified for such trusts in different areas:
Provided that the State Government may also by a
like notification direct that from the date specified
therein any public trust or class of public trusts
shall be exempt from all or any of the provisions of
this Act, subject to such conditions as may be
specified in the notification:
Provided further that before a notification of such
application or exemption is published, a draft
thereof shall be published, in the Official Gazette
and in such other manner as may be prescribed for
the information of persons likely to be affected
thereby together with a notice specifying the date
on or before which any objections or suggestions
shall be received and the date on or after which the
draft shall be taken into consideration.
15.2. Rule 13 of Bombay Public Trust Rules, 1961 (for
short, BPT Rules) reads as under:
Rules 13: Changes in the Register of Public Trusts.
(1) Any change or proposed change in any of the
particulars recorded in the Register of Public Trusts
shall, under sub-section (1) of section 22, be reported
16 to the Deputy Charity Commissioner or Assistant
Charity Commissioner by the trustee of the trust
concerned in the form of Schedule III hereto.
(1A) The memorandum referred to in subsection (1A) of
Section 22 shall be in the form of Schedule IIIA
hereto, and shall be verified in the manner provided in
sub-rule (4) of rule 6.
(2) The Deputy or Assistant Charity Commissioner on
receipt of the report under sub-rule (1) shall cause
particulars in respect thereof to be entered in a
register to be kept for the purpose of in the form of
Schedule IV hereto. In such register there shall b
entered also particulars in respect of changes effected
in the Register of Public Trusts otherwise than on
report by the trustee.
(3) Amendments in the entries in the Register of
Public Trusts shall be made by scoring out in red ink
the original entry or entries, and the addition or
alteration initialed by the Deputy or Assistant
Charity Commissioner.
(4) The Deputy or Assistant Charity Commissioner
may of his motion correct clerical or accidental
mistakes in any of the entries in the Register of Public
Trusts.
15.3. Section 85 of BPT Act reads as under:
Section 85 - Repeals :
(1) The Religious Endowments Act, 1862, is hereby
repealed.
(2) On the date of the application of the provisions of this
Act to any public trust or class of trusts under subsection
(4) of section 1 hereinafter in this section referred to an
the said date the provisions of the Act specified in
Schedule A which apply to such trust or class of trusts
shall cease to apply to such trust or class of trusts.
(3) Save as otherwise provided in this section such repeal
or cessation shall not in any way affect -
(a) any right, title, interest, obligation or liability already
acquired, accrued or incurred before the said date.
(b) any legal proceedings or remedy in respect of such
right, title, interest, obligation or liability, or
(c) anything duly done or suffered before the said date.
(4) Notwithstanding anything contained in subsection (3)
all proceedings pending before any authority under the
Mussalman Wakf Act, 1923 as amended by the
Mussalman Wakf Bombay Amendment Act, 1935, the
Bombay Public Trusts Registration Act, 1935, or the Parsi
Public Trusts Registration Act, 1936, immediately before
the said date shall be transferred to the Charity
Commissioner and any such proceedings shall be
continued and disposed of by the Charity Commissioner
or the Deputy or Assistant Charity Commissioner as 103
the Charity Commissioner may direct. In disposing of
such proceedings the Charity Commissioner, the Deputy
Charity Commissioner or the Assistant Charity
Commissioner, as the case may be, shall have and
exercise the same powers which were vested in and
exercised by the Court under the Mussalman Wakf Act,
1923 as amended by the Mussalman Wakf (Bombay
Amendment) Act, 1935, and by the Registrars under the
Bombay Public Trusts Registration Act, 1935, and the
Parsi Public Trusts Registration Act, 1936, and shall pass
such orders as may be just or proper.
(5) All records maintained by the authority or Court under
any of the Acts referred to in subsection (4) shall be
transferred to the Charity Commissioner or to the Deputy
or Assistant Charity Commissioner as the Charity
Commissioner may direct.
15.4. Section 86 of the BPT Act reads as under:
Section 86- Further repeals and savings consequent
on commencement of Bom. XXIX of 1950 in other
areas of State :
(1) On the commencement of this Act in that area of the
State to which it is extended by the Bombay Public Trusts
(Unification and Amendment) Act, 1959 -
(i) the Religious Endowments Act, 1863, as in force in the
Saurashtra and Kutch areas of the State.
(ii) the Madhya Pradesh Dharmadays Funds Act, 1951, as
in force in the Vidharbha Region of the State, and
(iii) any law relating to public trusts to which Chapter VII-
A applies, to the extent to which it corresponds to the
provisions of this Act, shall stand repealed.
(2) On the date of application of the provisions of this act
to any public trusts or class of public trust under sub-
section (4) of section hereinafter in this section referred
to as the said date, the provisions of the Acts specified in
Schedule AA which apply to such trust or class of trust
shall cease to apply thereto.
(3) Save as otherwise provided in this section, such
repeal or cessation shall not in any way affect -
(a) anything duly done or suffered under the laws hereby
repealed or ceasing to apply before the said date;
(b) any right, title, interest, obligation or liability already
acquired, accrued or incurred before the said date under
the laws hereby repealed or ceasing to apply;
(c) any legal proceedings or remedy in respect of such
right title, interest, obligation or liability;
Provided that if on the said date, any legal proceeding in
respect of any public trust is pending before any court
under any enactment specified in Schedule AA to which
the State Government, Commissioner, Registrar or any
officer of the State Government is a party, the Charity
Commissioner, shall be deemed to be substituted in those
proceedings for the State Government, Commissioner,
Registrar or as the case may be, the Officer, and such
proceedings shall be disposed of by such court;
Provided further that every proceeding pending before
any criminal court under the Madhya Pradesh
Dharmadaya Funds Act, 1951 shall abate on the repeal of
that Act under subsection (1).
15.5. Scheduled A of the BPT Act reads as under:
SCHEDULE A
(See Sections 28, 61 and 85)
1. The Charitable and Religious Trust Act, 1920.
2. The Mussalman Wakf Act, 1923, as amended by
Bombay Act XVIII of 1935.
3. The Bombay Public Trusts Registration Act, 1935.
4. The Parsee Public Trusts Registration Act, 1936.
5. The Baroda Public Institutions Act (Baroda Act No. VI
of Samvat 1961).
6. The Religious Endowments Act, 1863, as applied to
Jamkhandi State in 1890.
7. The Deosthan Rules, 1912, of the Jamkhandi State as
amended by Jamkhandi Act No. 1 of 1948.
15.6. The Bombay Public Trust Act though a State
enactment of the State of Maharastra extending
to the whole of the State of Maharastra, was
made applicable to the Bombay-Karnataka
region.
15.7. A public Trust is defined under Section 2(13) of
the BPT Act as under:
2(13) 'Public Trust" means an express or
constructive trust for either a public religious or
charitable purpose or both and includes a temple, a
math, a wakf, church, synagogue, agiary or other
place of public religious worship, a dharmada or
any other religious or charitable endowment and a
society formed either for a religious or charitable
purpose or for both and registered under the
Societies Registration Act, 1860.
15.8. The BPT Act therefore recognizes a Trust either
express or constructive as also a society
registered under the Societies Registration Act,
1860.
15.9. Section 2(7-A) of the BPT Act defines instrument
of Trust as under:
"Instrument of trust" means the instrument by
which the trust is created by the author of the trust
and includes any scheme framed by a competent
authority or any memorandum of association and
rules and regulations of a society registered under
the Societies Registration Act, 1860, in its
application to the State of Maharashtra.
15.10. Thus, a Trust could be either created by the
author of the Trust or be a scheme framed by a
competent authority or on memorandum of
association and rules and regulation of the
society registered under the Societies
Registration Act, 1860.
15.11. A Trust can either be implied or express,
registration of a Trust is not compulsory.
15.12. In terms of Section 6 of the Indian Trusts Act,
1882 a Trust is created with the author of the
Trust indicating with reasonable certainty by any
words or acts of (a) an intention on his part to
create a Trust, (b) the purpose of the Trust, (c)
the beneficiary, and (d) the Trust-property.
15.13. In terms of Section 7 of the Indian Trusts Act,
1882, a Trust could be created by every person
competent to contract.
15.14. Section 3 of the KSR Act 1960 reads as under:
3. Societies to which the Act applies.- The
following societies may be registered under this Act,--
Societies established for,--
a. the promotion of charity;
b. the promotion of education, science, literature,
or the fine arts;
c. the promotion of sports 1 [x x x]1 ; 1. Omitted
by Act 7 of 1978 w.e.f. 29.9.1977.
d. the instruction and the diffusion of knowledge
relating to commerce or industry or of any other useful
knowledge;
e. the diffusion of political education;
f. the foundation or maintenance of libraries or
reading rooms for general use among the members or
open to the public, or of public museums and galleries
of painting and other works of art;
(ff) the promotion of conservation and proper use of
natural resources and scarce Infrastructural facilities
like land, power, water, forest and such other
resources and infrastructural facilities, as may be
notified by the State Government from time to time.]1
1. Inserted by Act 9 of 1999 w.e.f. 26.4.1999.
g. the collection of natural history, mechanical and
philosophical inventions, instruments or designs; and
which intend to apply their profits, if any, or other
income in promoting their objects and prohibit the
payment of any dividend or distribution of any income
or profits among their members.
15.15. Thus, it is clear that it is only for the above
purposes that a Society could be registered. The
requirements of the registration are mentioned
under Section 6. The mode of forming of a
society is mentioned under Section 5.
15.16. A perusal of Section 3 indicates that a Society
carrying on the object of education could be
registered under the KSR Act. A society for
charitable or religious activities cannot be
registered under the KSR Act. A Society for
promotion of charity could however be
registered.
15.17. Chapter IV of the BPT Act provided for
registration of a public Trust. In terms of Section
18, a trustee of the public Trust has to apply
under the BPT Act for registration of the said
public Trust. Upon enquiry being conducted in
terms of Section 19 of the BPT Act, an entry
would be made in the register of Trust in terms
of Section 21 of the BPT Act. In terms of Section
52 of the BPT Act, Sections 92 and 93 of the
Code of Civil Procedure were made inapplicable
to a public Trust registered under the BPT Act.
15.18. Section 18 of the BPT Act, 1950 reads as under:
18. Registration of public trusts :
(1) It shall be the duty of the trustee of a public
trust to which this Act has been applied to make an
application for the registration of the public trust.
(2) Such application shall be made to the Deputy or
Assistant Charity Commissioner of the region or
sub-region within the limits of which the trustee
has an office for the administration of the trust or
the trust property or substantial portion of the trust
property is situated, as the case may be.
(3) Such application shall be in writing, shall be in
such form and accompanied by such fee as may be
prescribed.
(4) Such application shall-
(a) in the case of a public trust created before this
Act was applied to it, be made, within three
months' from the date of the application of this Act,
and
(b) in the case of a public trust created after this
Act comes into force, within three months' of its
creation.
(5) Such application shall inter alia contain the
following particulars--
(a-i) the designation by which the public trust is or
shall be known (hereinafter referred to as the
name of the public trust)
(i) the names and addresses of the trustees and
the manager,
(ii) the mode of succession to the office of the
trustee,
(iii) the list of the movable and immovable trust
property and such description and particulars as
may be sufficient for the identification thereof,
(iv) the approximate value of the movable and
immovable property,
(v) the gross average annual income of the trust
property estimated on the income of three years
immediately preceding the date on which the
application is made or of the period which has
elapsed since the creation of the trust, whichever
period is shorter,
(vi) the amount of the average annual expenditure
in connection with such public trust estimated or
the expenditure incurred within the period to which
the particulars under clause (v) relate.
(vii) the address to which any communication to
the trustee or manager in connection with the
public trust may be sent,
(viii) such other particulars which may be
prescribed.
Provided that, the rules may provide that in the
case of any or all public trusts it shall not be
necessary to give the particulars of the trust
property of such value and such kind as may be
specified therein.
(6) Every application made under subsection (1)
shall be signed and verified in the prescribed
manner by the trustee or his agent specially
authorized by him
in this behalf. It shall be accompanied by a copy of
an instrument of trust, if such instrument had been
executed and is in existence.
(6A) Where on receipt of such application, it is
noticed that the application is incomplete in any
particulars, or does not disclose full particulars of
the public trust, the Deputy or Assistant Charity
Commissioner may return the application to the
trustee, and direct the trustee to complete the
application in all particulars or disclose therein the
full particulars of the trust, and resubmit it within
the period specified in such direction; and it shall
be the duty of the trustee to
comply with the direction.
(7) It shall also be the duty of the trustee of the
public trust to send a memorandum in the
prescribed form containing the particulars,
including the name and description of the public
trust, relating to the immovable property of such
public trust, to the Sub-Registrar of the sub-district
appointed under the Indian Registration Act, 1908,
in which such immovable property is situate for
the purpose of filing in Book No. 1 under section 89
of that Act.
Such memorandum shall be sent within three
months from the date of creation of the public trust
and shall be signed and verified in the prescribed
manner by the trustee or his agents specially
authorized by him in this behalf.
15.19. It is therefore clear that a trustee has to make
an application for registration of a public Trust
under the BPT Act providing information as
detailed above. Upon receipt of an application,
the Deputy or Assistant Charity Commissioner,
as the case may be shall make an inquiry in
terms of Section 19 of the BPT Act and on that
basis cause an entry in the register maintained
under the Act in terms of Section 21 of the BPT
Act.
15.20. Thus, on the BPT Act having come into force any
public Trust or society would have to be
registered under the BPT Act by following the
due procedure.
15.21. In terms of Section 52 of the BPT Act as above
stated, Sections 92 and 93 of the Code of Civil
Procedure is not applicable to the public Trust.
The said Section 52 reads as under:
52. Non-application of section 92 and 93 of
the Civil Procedure Code to
public trusts.-
(1) Notwithstanding anything contained in the Code
of Civil Procedure, 1908, the provisions of sections
92 and 93 of the said Code shall not apply to the
public trusts.
(2) If on the date of the application of the Act to
any public trust any legal proceedings in respect of
such trust are pending before any Civil Court of
competent jurisdiction to which the Advocate
General or the Collector exercising the powers of
the Advocate General is a party, the Charity
Commissioner shall be deemed to be substituted in
those proceedings for the Advocate General or the
Collector, as the case may be, and such
proceedings shall be disposed of by such Court.
(3) Any reference to the Advocate General made in
any instrument, scheme, order or decree of any
Civil Court of competent jurisdiction made or
passed, whether before or after the said date, shall
be construed as reference to the Charity
Commissioner.
15.22. The reason why Section 52 is not applicable is
that in terms of Section 50 of BPT Act whenever
any issue relating to public Trust or Trusts arises
the Charity Commissioner on making such an
inquiry as he thinks fit may institute a suit
before a competent Court. Section 50 reads as
under:
50. Suit by or against or relating to public
trusts or trustees or others. -In any case:-
(i) where is alleged that there is a breach of a
public trust, negligence, misapplication or
misconduct on the part of a trustee or trustees,
(ii) where a direction or decree is required to
recover the possession of or to follow a property
belonging or alleged to be belonging to a public
trust or the proceeds thereof or for an account of
such property or proceeds from a trustee, ex-
trustee, alienee, trespasser or any other person
including a person holding adversely to the public
trust but not a tenant or licensee, or tenant,
(iii) Where the direction of the Court is deemed
necessary for the administration of any public trust,
or
(iv) for any declaration or injunction in favour of or
against a public trust or trustee or trustees or
beneficiary thereof, the Charity Commissioner after
making such enquiry as he thinks necessary, or
two or more persons having an interest in case the
suit is under sub-clauses (i) to (iii), or one or more
such persons in case the suit is under sub-clause
(iv) having obtained the consent in writing of the
Charity Commissioner as provided
in section 51 may institute a suit whether
contentious or not in the Court within the local
limits of whose jurisdiction the whole or part of the
subject matter of the trust is situate, to obtain a
decree for any of the following relief's:-
(a) an order for the recovery of the possession of
such
property or proceeds thereof;
(b) the removal of any trustee or manager;
(c) the appointment of a new trustee or manager;
(d) vesting any property in a trustee;
(e) a direction for taking accounts and making
certain enquiries;
(f) an order directing the trustees or others to pay
to the trust the loss caused to the same by their
breach of trust, negligence, misapplication,
misconduct or willful default;
(g) a declaration as to what proportion of the trust
property or of the interest therein shall be allocated
to any particular object of the trust;
[(h) xxxxx]
(i) a direction authorising the whole or any part of
the
trust property to be let, sold, mortgaged or
exchanged
or in any manner alienated on such terms and
conditions as the court may deem necessary;
(j) the settlement of scheme, or variation or
alteration in a scheme already settled,
(k) an order for amalgamation of two or more
trusts by
framing a common scheme for the same;
(l) an order for winding up of any trust and
applying the funds for other charitable purposes;
(m) an order for handing over of one trust to the
trustees of some other trust and deregistering such
trust;
(n) an order exonerating the trustees from
technical breaches, etc;
(o) an order varying, altering, amending or
superseding any instrument of trust;
(p) declaring or denying any right in favour of or
against, a public trust or trustee or trustees or
beneficiary thereof an issuing injunctions in
appropriate cases; or
(q) granting any other relief as the nature of the
case may require which would be a condition
precedent to or consequential to any of the
aforesaid relief's or is necessary in the interest of
the trust:
Provided that no suit claiming any of the reliefs
specified in this section shall be instituted in
respect of any public trust, except in conformity
with the provisions thereof;
Provided further that, the Charity Commissioner
may instead of instituting a suit make an
application to the Court for a variation or alteration
in a scheme already settled:
Provided also that, the provisions of this section
and other consequential provisions shall apply to all
public trusts, whether registered or not or
exempted from the provisions of this Act under
subsection (4) of section 1.
15.23. In terms of Section 85 of the Act, Religious
Endowments Act, 1862 was repealed and as
regards any trust to which the enactment
referred to Schedule-A of the Act were
applicable, the BPT Act was made applicable.
15.24. The BPT Act was applicable to various
institutions including a public trust as defined
under Section 2 (13) thereof as also to Religious
and Charitable trusts and/or Societies formed
either for Religious or charitable purposes or for
both registered under Societies Registration Act.
15.25. On an analysis of the entire provisions of the BPT
Act I'am of the considered opinion that the BPT
Act applies only to a pre-existing Trust or
Society which could register itself under the BPT
Act.
15.26. In terms of Section 18 of the BPT Act, a Trust or
a public Trust to which the Act has been applied
is required to make an application for
registration of the public Trust under the BPT Act
within three months of the Act being applicable.
In the event of the public Trust having been
created before the Act was made applicable to it
and in the event of a public Trust created after
the Act came into force within three months of
its creation. Thus, the creation of a Trust or a
Society is not dependent on the BPT Act but is
an independent action and in the event of the
said Trust or Society wanting to avail the
benefits under the BPT Act, such Trust or Society
could register itself under the BPT Act. To put it
otherwise, there has to be a pre-existing
Trust/Society which can register under the BPT
Act. The BPT Act by itself does not provide for
registration of a Trust or Society.
16. Answer to Point No.3: What is the effect of
bringing into force the Karnataka Hindu
Religious Institutions and Charitable Endowment
Act, 1997?
16.1. The Karnataka Hindu Religious Institutions and
Charitable Endowment Act, 1997 enacted by the
State of Karnataka came into force on an
publication of a Notification on 30.4.2003 with
effect from 1.5.2003.
16.2. Statement of objects and reasons of the said Act
are reproduced hereunder for easy reference:
STATEMENT OF OBJECTS AND REASONS
There has been before the State Government, a long
standing public demand to bring about a uniform law to
provide for the regulation of all Charitable Endownments
and Hindu Religious Institutions in the State. Which are
now regulated under different enactments, having local
application in different parts of the State, namely:-
1. The Karnataka Religious and Charitable Institutions
Act, 1927;
2. The Madras Hindu Religious and Charitable
Endowment Act, 1951;
3. The Bombay Public Trust Act, 1950;
4. The Hyderabad Endowment Act, Regulations, and
5. The Coorg Temple Funds Management Act, 1956.
It is therefore proposed to enact a new law to replace the
several local Acts to bring about uniformity in the matter
of regulating, by law, the various Charitable Endowment
and Hindu Religious Institutions, especially.
(1) To make the law applicable generally to all Charitable
Endowments and Hindu Religious Institutions, which on
the date of commencement of the Act were managed by
or receiving annuity, taldik or other grants from the State
Government, and to other Hindu Religious Institutions
which though not under the management of the State
Government, require by reason of mismanagement, to be
regulated by the State Government after notifying them
as Declared Institutions.
(2) to provide that the Charitable Institution and Trusts
registered under the KSR Act 1960 or under the Indian
Trust Act, 1882 and which are not under the management
of the Government shall continue to be autonomous;
(3) to create Common Pool Fund out of surplus funds of
the Notified Religious Institutions, donations etc., for the
maintenance and improvement of needy institutions,
managed by an independent committee;
(4) to provide for the founder trustees or their lineal
descendants to be nominated to the managing committee
as Chairman, in keeping with the decision of the Supreme
Court of India.
(5) to regulate improper alienation or disposal of property
belonging to a notified or declared institution by nullifying
unlawful transfers and providing for expeditions eviction
of unauthorised occupants of property belonging to such
institutions; and
(6) to make certain other regulations necessary in the
local conditions.
Hence the Bill.
16.3. A perusal of the same indicates that the said Act
was brought into force to replace the several
local Acts to bring about a uniformity in the
matter of various Charitable, Endowment and
Hindu Religious Institutions. One of the Acts
which was applicable in local areas is BPT Act of
1950.
16.4. The Act of 1997 applies to Charitable Institutions
established for charitable purposes more
particularly to Hindu Religious Institutions.
16.5. 'Charitable Institution' is defined under Section
2(6) of the Act of 1997, which reads as under:
Charitable Institution means any establishment,
undertaking organisation or association formed for a
charitable purpose and includes specific endowment and
Dharmadayam.
a. an institution managed by a hereditary trustee
having proprietary right over the institution and the
income thereof; and
b. an institution which is an inseparable intergral part
of a composite institution consisting of institutions other
than charitable institutions also.
16.6. 'Charitable purpose' is defined under Section
2(7) of the Act of 1997, which reads as under
'Charitable purpose' include,-
a. relief of poverty or distress including maintenance
of rest houses, choultries, houses for feeding the poor
and the like;
b. the advancement or maintenance of any other
object of utility, benefit or welfare to, or used, as of right
by, the Hindu community or a section thereof, not being
an object of an exclusively religious nature.
But does not include a purpose which relates to sports or
exclusively to religious teaching or worship;
16.7. 'Religious Institutions is defined under Section
2(17) of the Act of 1997, which reads as under:
'Hindu Religious Institution' means a temple or
specific endowment and includes a Brindavana, Samadhi,
Gaddige, Mandira, Shrine or place of any other institution
established or maintained for Hindu Religious purpose ;
16.8. The Act of 1997 would apply to a notified
Institution under Section 23 of the Act and in
terms of 23(e) thereof would apply to all
Religious Institutions registered under the
Bombay Public Trust Act, 1950.
16.9. In terms of Section 78 of the said Act of 1997
the BPT Act would stand repealed.
16.10. One of the Effects of bringing into force the Act
of 1997 being the repeal of the BPT Act 1950,
there was a vacuum which got created as
regards an organization registered under BPT Act
1950, in that the registration ceased to be
applicable.
17. Answer to Point No. 4: What is the effect of the
Repeal of the BPT Act?
17.1. On the repeal of the BPT Act all benefits that
were available to an institution registered under
the BPT Act were taken away.
17.2. Since the benefits of registration under the BPT
became unavailable such an
organization/institution would have to register
itself under the relevant laws applicable.
17.3. If a Trust had been registered under the BPT Act,
with the repeal, the provisions of Section 92 and
93 of the Civil procedure code would become
applicable to such Trust on the repeal of the BPT
Act.
18. Answer to Point No.5: Whether on the repeal of
the Bombay Public Trust Act, the Trust
registered under the said Act, would have to be
registered under the Hindu Religious and
Charitable and Religious Trust Act 1920 or under
the Karnataka Society Registration Act 1960?
18.1. The contentions urged by both the counsel are
opposed to each other inasmuch as Sri. F.V.
Patil, contending that the Charitable and
Religious Trust Act 1920 would be applicable and
Sri. Sanjay Kattegeri, contending that it is the
KSR Act 1960 which should be applicable.
18.2. The Act of 1920 stood suspended on account of
the BPT Act 1950 since the same was covered
under Schedule A to the BPT Act. Upon the
repeal of the BPT Act, the Act of 1920 came back
into operation.
18.3. The under Secretary, Endowment Department
has issued a clarification that any Trust
registered under BPT Act for the purpose of
charitable and religious activities would have to
be registered under Act of 1920 and the Block
Education Officer has issued a clarification that a
trust registered for education activities would
have to register itself before the District
Registrar i.e., under the Societies Registration
Act.
18.4. A perusal of the Act of 1920 does not indicate
any provision for registration but it is only an
applicability of an Act to a trust created for the
purposes of charitable or a religious nature. The
Act of 1920 as such does not provide for
registration.
18.5. The Act of 1920 only provides a right to a third
party to approach the Court of competent
jurisdiction having territorial jurisdiction under
Section 3 for furnishing of information and
Section 7 provides for a trustee to approach the
said Court for direction as aforesaid. Apart
therefrom, there is no provision made for
registration.
18.6. In view thereof, the applicability of the Act of
1920 is restricted to the above events and does
not extend to registration of a trust which was
registered under the BPT Act subsequent to the
repeal thereof.
18.7. Further, if a Trust is not carrying out any
charitable or a religious activity but it is carrying
out educational activity, the Act of 1920 would
not be applicable since the said aims and objects
would not come within the mandate of the Act of
1920.
18.8. The clarification issued by the Block Education
Officer that a Trust which was carrying on
educational activities would have to register
itself under the Act of 1960 is as such not
binding on this court, but would have to be
tested on an analysis of the relevant provisions
on a case to case basis.
18.9. As observed above the BPT act applies to a pre-
existing Trust and or a Society, on enquiry both
the counsel submit that the charity
commissioner has accepted the registration
applications and registered institutions which
were not pre-existing but came into being on the
registration under the BPT Act.
18.10. In such circumstances the constituent
documents of registration would have to be
considered to determine under which law the
said organization would have to register on the
repeal of the BPT Act.
18.11. If the constitution is as a Society the KSR Act
would apply, if the constitution is that like a
Trust, the Indian Trust Act would apply.
18.12. As observed above the Act of 1920 does not
provide for registration, though a Trust need not
be registered if it were to be registered than the
same would have to be done in pursuance of and
under the provisions of the Indian Trusts Act.
19. Answer to Point No.6: In the present case,
whether the registration of the Trust under the
Karnataka Society Registration Act 1960 is
proper or not?
19.1. It is in light of the above discussion that this
aspect would have to be considered.
19.2. A perusal of the Annexure-R1 produced along
with the objections filed by respondent No.5 to
WP No.101436/2018 being the original
constitution does not indicate as to whether the
same is a Trust or a Society. However, the office
bearers are referred to as Trustees, the
document speaks of their powers, etc.
19.3. There is also a reference in the said original
constitution on the applicability of the KSR Act.
More particularly, at Rule 26, 27 and 28 thereof
which are reproduced hereunder for easy
reference:
"26. Amendments to the Constitution of the Trust
and Rules, resolutions will be made in accordance
with Sections 9, 10 and 13 of KSR Act, 1960.
27. The Balance-Sheet and a list of Managing
Committee Members to be filed with the Registrar
will be made in accordance with the Section 13 of
the KSR Act, 1960.
28. Amalgamation and resolutions will be in
accordance with Section 21, 22 and 23 of KSRT
Act, 1960."
19.4. Rule 31, 32, 33, 35 and 36 read as under:
"31. Investment Clause (1)
The funds of the Trust/Institution/Society
shall be invested in the modes specified under the
provisions of Section 13(1) (d) read with Section
11(5) of the Income Tax Act, 1961.
32. Account Clause
There shall be maintained all accounts of the
Trust/Institution/Society regularly. The account
shall be audited by an Auditor every ear.
33. Dissolution Clause
In the event of dissolution or winding up of
the Trust/Society/Institution/Association, the
assets remaining as on the date of dissolution shall
under no circumstances be distributed among the
Trustee/Members of the Managing
Committee/Members of the Governing Body, but
the same shall be transferred to another charitable
Trust/Society/Institution/Association whose objects
are similar to those of this
Trust//Society/Association/Institution and which
enjoy recongnition under Section 80(G) of the
Income Tax Act, 1961.
35. The benefits of the
Trust/Society/Institution/Association shall be open
to all irrespective of caste, creed or religion.
36. The funds and the income of the
Trust/Society/Association/Institution shall be solely
utilized towards the achievements of the objects
and portion of it shall be utilized for payment to
Trustees/Members by way of profits, interest,
dividend etc.,"
19.5. A perusal of the above Rules indicates that for
the purpose of amendments, amalgamation,
filing of balance sheets, it is the KSR Act, 1960
which would apply. That means, that all the
compliances would have to be made in terms of
the KSR Act, 1960.
19.6. Bylaw 31, 32, 33, 35 and 36 define the
organization as a
Trust/Society/Organization/Institution. Thus, this
original constitution is not clear as to whether it
is a Trust or a Society or an Association or an
Institution. Admittedly, there is no Trust which
has been registered nor is a Trust deed in
existence. Admittedly, there is neither a Society
which is registered nor the bylaws of a Society in
existence.
19.7. Thus, Section 18 which provides for registration
of a pre-existing Trust is not applicable. Be that
as it may, since the Paschim Vibhag Shikshan
Mandal has been registered under the BPT Act
and having been operational under the BPT Act,
I am of the considered opinion that there would
be no purpose which would be served by going
into the issue of whether it could have been so
registered under the BPT Act or not. The concern
in this matter is as to what is to happen to the
institution registered under the BPT Act upon the
repeal of the BPT Act.
19.8. As aforesaid, bylaw 25, 26, 27 and 28 make KSR
Act applicable to the important compliances. The
Trust Act has not been made applicable under
the bylaws. If that be so, when the institution
was constituted the persons who constituted the
institution being of the opinion that the KSR Act
would be applicable, I am of the considered
opinion that after the repeal of the BPT Act, the
organization which had been registered under
the BPT Act would now be required to be
registered under the KSR Act.
19.9. Subsequent to the repeal of the BPT Act, certain
persons out of the 36 trustees, got together and
issued a notice on 03.06.2012 to all the other
trustees. 29 of such trustees had received the
notice in person and the remaining trustees had
been served through a registered post
acknowledgment due (RPAD). The RPAD cards
having evidencing the service of the same on the
remaining trustees has also been produced along
with the Writ Petition No.81667/2013 at
Annexure-D2, the said receipt of notice has also
not been disputed in these proceedings.
19.10. In terms of the said notice, a meeting had been
called for on 23.06.2012 at 2.00 p.m., to
consider various aspects including the
registration of a society. The meeting was held
on 23.06.2012 attended by 29 trustees. In the
said meeting, a managing committee was
elected. A general body comprising of the 29
trustees also appointed a committee to ascertain
and formulate as also draft bye-laws for the
purpose of registration of the erstwhile trust
under the KSR Act.
19.11. In pursuance thereto that the bye-laws were
drafted and submitted for registration under the
KSR Act, pursuant to which, the registration was
completed.
19.12. Another way of looking at this would be as to
under what enactment registration has to be
obtained in order to carry out functions as an
educational institution.
19.13. Section 2(14) of the Karnataka Education Act,
1983 (hereinafter referred to as 'KEA' Act, 1983)
reads as under:
2(14). "Educational Institution" means any
institution imparting education referred to in
section 3 and includes a private educational
institution but does not include an institution under
the direct management of the University or of the
Central Government or a tutorial institution;
19.14. Section 3 provides for and requires registration
of Educational Institutions, the manner and
methodology of registration is provided under
the Karnataka Education Institutions
(Classification and registration) Rules 1997.
19.15. Rule 3-A of the said Rules of 1997 provides for
eligibility for establishing and maintaining an
educational institution. The same reads as
under:
3-A. Eligibility for establishing and maintaining an
educational institution.- (1) Following private body of
persons shall be eligible for establishing and maintaining
an educational institution imparting preprimary, primary
and secondary education or any part thereof.-
(i) society registered under the Karnataka Societies
Registration Act, 1960 (Karnataka Act 17 of 1960);
(ii) a charitable trust registered under Indian Trusts Act,
1882;
(iii) a company registered under Section 8 of the
Companies Act, 2013 (Central Act 18 of 2013); and
(iv) a non-profit motive limited liability partnership
registered under the Limited Liability Partnership Act,
2008 (Central Act 6 of 2009).
(2) The eligibility of the private body of persons
prescribed in sub-rule (1) above shall be subject to the
following conditions, namely.-
(i) the furtherance of education shall be one of its
principal objectives;
(ii) the concerned body of persons shall have been
established on non-proprietary and non-profit sharing
basis;
(iii) the funds of the institution shall not be channelized
for purposes other than furthering education within the
ambit and functional area of the institution; and
(iv) the articles of association or memorandum of bye-
laws or partnership agreement, as the case may be,
shall specifically provide for the above conditions.
(3) Any person or body of persons already maintaining
an education institution registered under the Act for
imparting pre-primary, primary and secondary
education or any part thereof and not coming under the
categories specified in sub-rule (1) and not meeting the
condition specified in sub-rule (2) shall taken action to
ensure compliance within one year from the date of
commencement of the Karnataka Educational
Institutions (Classification and Registration)
(Amendment) Rules, 2017.
19.16. Thus, it is seen that for a private body or entity
to impart education it has to be registered as a
society under the KSR Act or a Charitable Trust
registered under the Indian Trusts Act or a
Company registration under Section 8 of the
Companies Act or a non-profit motive limited
liability partnership registered under the Limited
Liability Partnership Act, 2008.
19.17. In the present case, admittedly, there is no
charitable Trust registered under the Indian
Trusts Act, 1882.
19.18. An organization to impart education would have
to satisfy the requirement of Rule 3-A of the
Karnataka Education Institutions (Classification
and registration) Rules 1997.
19.19. It is in this background that certain members
who are the erstwhile trustees have come
together and registered a Society. The said
members constituting a majority of 29 out of 36
and the process and procedure having been
followed as detailed herein above, I am of the
considered opinion that the same is proper and
correct and does not require any interference.
19.20. In the present case, the Trust carrying out
educational activities could be registered under
the Act of 1960.
19.21. Hence, I answer Point No.6 by holding that,
in the present case, the registration of the
society under the Karnataka Society
Registration Act 1960 is proper.
20. Answer to point No.7: Whether the Order passed
in Civil Misc.No.295/2012 confirmed in the
review petition is proper and correct?
and
Answer to point No.8:Whether the Order passed
in Misc.P.No.118/2015 is proper and correct?
20.1. Both the above points being related to each
other are taken up for consideration together.
20.2. As noticed above, subsequent to the repeal of
the BPT Act, certain persons out of the 36
trustees, got together and issued a notice on
03.06.2012 to all the other trustees. 29 of such
trustees had received the notice in person and
the remaining trustees had been served through
a registered post acknowledgment due (RPAD).
20.3. It is rather strange that when notice had been
received by the other remaining trustees
thereafter the said trustees who did not attend
the meeting on 23.06.2012 filed a Miscellaneous
No.295/2012 said to be under Sections 3 and 7
of the Act of 1920 for confirmation of the names
of certain persons to be the trustees.
20.4. As adverted to above, the Act of 1920 does not
provide for registration of a trust. The trust, if
any, would have to be registered under the
Indian Trusts Act and it is only if there are any
issues as enumerated above that a third party
could approach a Court of a competent
jurisdiction under Section 3 of the Act of 1920
for the purpose of providing certain documents
and information and a trustee could approach
under Section 7 for advice, instructions, etc.
20.5. The Trust not having been registered and there
being no trust in existence, the question of
Miscellaneous No.295/2012 having been
considered, in my considered opinion, is also not
proper. Since upon the repeal of the BPT Act,
there was no entity like a trust which could have
been recognized permitting a few of the trustees
to approach the Court of competent jurisdiction
in Misc.No.295/2012.
20.6. Be that as it may the pendency of the WP
No.70187/2012 whereunder the Registration of
the Society under the KSR Act was in question,
had been suppressed in Misc.No.295/2012 and
notice as regards the said proceedings were also
taken out in a newspaper which, in my
considered opinion, did not have adequate
circulation which could have reached the other
remaining trustees.
20.7. Knowing fully well that there are nearly 29 other
trustees who are opposed to the application of
Act of 1920 and that they have resolved for
registration of the erstwhile trust under the KSR
Act. It was the duty of the persons who had
approached the Court in Misc. No.295/2012 to
array them as party-respondents which was also
not done, which establishes the malafides on
part of the petitioners in Misc.No.295/2012.
20.8. As held above, the Act of 1920 would not be
applicable for the purpose of registration but
would only be applicable insofar as advice,
direction, etc., in terms of Section 7 thereof,
which could only be resorted to in the event of a
Trust being in existence and registered.
20.9. In the present facts, there is no such registration
of a Trust and further more, even the erstwhile
Trust was not carrying on any activity which
could be said to be charitable and/or religious in
nature, the Act of 1920 would not have been
applicable.
20.10. The 29 trustees had got issued a notice by
registered post to the other trustees, held a
meeting and resolved to register under the KSR
Act after formulating bye-laws and thereafter
registered the same. Since the Trust was
carrying on educational activities and the object
of education being covered as a permitted object
under the KSR Act, the registration under KSR
Act, in my considered opinion, is proper and
correct.
20.11. WP No.70187/2012 which had been filed
challenging the registration was allowed and the
matter remitted to the District Registrar to
consider the representations given. The Registrar
vide his order dated 22.02.2013 confirmed the
same after consideration of the representations.
20.12. The grievance of Sri.F.V.Patil, is that there was
improper consideration of the aspects inasmuch
as the applicability of Act of 1920 has not been
considered and therefore, WP No.81667/2013
has been filed challenging the order of the
District Registrar dated 22.02.2013. In view of
my finding above that the Act of 1920 is not
applicable and it is the KSR Act which is
applicable which is what has been held that the
District Registrar, the enquiry being limited only
to registration I am of the considered opinion
that the order passed by the District Registrar
dated 22.02.2013 vide Annexure-M to WP
No.81667/2013 is proper and correct and there
are no grounds which have been made out in WP
No.81667/2013 to interfere with the order
passed by the District Registrar dated
22.02.2013.
20.13. As observed above the Misc. No.295/2012 had
been filed under Sections 3 and 7 of the Act of
1920 for confirmation of the names of the
persons named therein to be trustees. The said
petition came to be allowed without proper
notice to the other trustees.
20.14. The trial Court while considering the above Misc.
No.295/2012 did so without proper notice to the
aggrieved persons and only after hearing one
side of the story. Though a notice was published
in the newspaper "Haseeru Karnthi", the same
did not have proper circulation nor it would come
to the notice of the other trustees, thus,
disabling them from contesting the matter. If at
all they were aware of the said proceedings, they
would have appeared, filed their objections and
contested the matter and if all the other issues
which have been pointed out would have been
placed before the District Court. I am of the
considered view that the District Court would not
have allowed the petition under Misc.
No.295/2012.
20.15. On coming to know of the orders passed in the
Misc. No.295/2012, a Review Petition was filed
on 09.07.2013 which came to be dismissed
holding that the persons who had filed the
review petition were not parties to the
proceedings. Challenging the said order, WP
No.81667/2013 has been filed.
20.16. Order XLVII of the Civil Procedure Code reads as
under:
1. "Application for review of judgment"
(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is
allowed, but no appeal has been preferred,
(b) by a decree or order from which no appeal is
allowed, or
(c) by a decision on a reference from a Court of
Small Causes, and who, from the discovery of new
and important matter or evidence which, after the
exercise of due diligence was not within his
knowledge or could not be produced by him at the
time when the decree was passed or order made,
or on account of some mistake or error apparent
on the face of the record or for any other sufficient
reason, desires to obtain a review of the decree
passed or order made against him, may apply for a
review of judgment to the Court which passed the
decree or made the order.
(2) A party who is not appealing from a decree or
order may apply for a review of judgment
notwithstanding the pendency of an appeal by
some other party except where the ground of such
appeal is common to the applicant and the
appellant, or when, being respondent, he can
present to the Appellate Court the case on which
he applies for the review.
Explanation.-The fact that the decision on a
question of law on which the judgment of the Court
is based has been reversed or modified by the
subsequent decision of a superior Court in any
other case, shall not be a ground for the review of
such judgment.
2. To whom applications for review may be made
3. Form of applications for review
The provisions as to the form of preferring appeals
shall apply mutates mutandis, to applications for
review.
4. Application where rejected
(1) Where it appears to the Court that there is not
sufficient ground for a review, it shall reject the
application.
(2) Application where granted- Where the Court is
of opinion that the application for review should be
granted, it shall grant the same
Provided that-
(a) no such application shall be granted without
previous notice to the opposite party, to enable him
to appear and be heard in support of the decree or
order, a review of which is applied for; and
(b) no such application shall be granted on the
ground of discovery of new matter or evidence
which the applicant alleges was not within his
knowledge, or could not be adduced by him when
the decree or order was passed or made, without
strict proof of such allegation.
5. Application for review in Court consisting of two
or more judges
Where the Judge or Judges, or any one of the
judges, who passed the decree or made the order a
review of which is applied for, continues or
continued attaches to the Court at the time when
the application for a review is presented, and is not
or not precluded by absence or other cause for a
period of six months next after the application from
considering the decree or order to which the
application refers, such Judge or Judges or any of
them shall hear the application, and no other Judge
or Judges of the Court shall hear the same.
6. Application where rejected
(1) Where the application for a review is heard by
more than one judge and the Court is equally
divided, the application shall be rejected.
(2) Where there is a majority, the decision shall be
according to the opinion of the majority.
7. Order of rejection not appealable, Objections to
order granting application
(1) An order of the Court rejecting the application
shall not be appealable; but an order granting an
application may be objected to at once by an
appeal from the order granting the application or in
an appeal from the decree or order finally passed
or made in the suit.
(2) Where the application has been rejected in
consequence of the failure of the applicant to
appear, he may apply for an order to have the
rejected application restored to the file, and, where
it is proved to the satisfaction of the Court that he
was prevented by any sufficient cause from
appearing when such application was called on for
hearing, the Court shall order it to be restored to
the file upon such terms as to costs or otherwise as
it thinks fit, and shall appoint a day for hearing the
same.
(3) No order shall be made under sub-rule (2)
unless notice of the application has been served on
the opposite party.
8. Registry of application granted, and order for re-
hearing
When an application for review is granted, a note
thereof shall be made in the register and the Court
may at once re-hear the case or make such order
in regard to the re-hearing as it thinks fit.
9. Bar of certain application
No application to review an order made on an
application for a review or a decree or order passed
or made on a review shall be entertained.
20.17. A perusal of the above provision would indicate
that a Review Petition could not only be filed by
a party to the proceedings but by any other
other person aggrieved by placing on record that
it is such party who is affected by the orders
passed and that there is an ex facie error which
has been committed by the Court.
20.18. Of course, such a party could have also filed an
appeal challenging the order passed in Misc.
No.295/2012. However, having chosen to file a
review petition, it was the duty of the District
Court to have considered the review petition on
merits and pass orders on merits especially
when there are serious allegations which have
been made as regards the applicability of the Act
of 1920, as regards the service of notice and
further more serious allegations having been
made as regards the petitioners therein having
abused the process of Court.
20.19. The District Court not having conducted such an
enquiry but having dismissed the review petition
in IA No.2 in Misc. No.295/2012, in my
considered opinion is improper and as such, the
challenge made thereto in WP No.81667/2013
would be required to be allowed.
20.20. This being also apparent by the subsequent Acts
which occurred inasmuch as when one more
petition was filed in Misc.P.No.118/2015 under
the Act of 1920, the other trustees coming to
know of the same, had entered appearance,
objected to the same, upon evidence being led,
the trial Court dismissed the Misc.P.No.118/2015
which had been challenged on 11.1.2017 in WP
No.101972/2017. The only ground raised in WP
101972/2017 is that since earlier Misc.
No.295/2012 was allowed, Misc. No.118/2015
also ought to have been allowed. I find no
reasons or grounds, which are sustainable and
made out in WP No.101972/2017 more so when
having held that the Act of 1920 is not at all
applicable.
20.21. Hence, I answer point No. 7 by holding that
the Order passed in Civil Misc.No.295/2012
confirmed in the review petition is not
proper and correct. I Answer point No.8 by
holding that the Order passed in
Misc.P.No.118/2015 is proper and correct.
21. Answer to point No.9: Whether respondent No.7
in WP No.101436/2018 could be entitled to his
salary, if so from whom?
21.1. WP No.101436 of 2018 has been filed seeking
for a certiorari to quash the order dated
15.03.2017 passed by the Director, Department
of Public Education, which has been confirmed
by the Commissioner and Appellate Authority,
Department of Public Education.
21.2. By way of the said orders, the right of the
society to administer the schools had been
upheld by the said authorities, which has been
challenged contending that in view of the orders
passed by the Misc. No.295/2012, it is the Trust
which should be incharge of the management of
the school. Hence, the said authorities could not
have recognized the society to be in
management of the schools/trusts.
21.3. In the said proceedings, respondent No.7 therein
had been appointed by the Trust as a Head
Master of the school. There is no dispute that the
said Head Master has discharged his role and
function.
21.4. In the above background, having come to a
conclusion that the Act of 1920 is not applicable
there being no grounds made out in WP
No.101436 of 2018, the same would be required
to be dismissed. However, since the respondent
No.7 has discharged his role and obligation, he
cannot be deprived of the salary during the
period of his working as a Head Master and as
such, the society is directed to make payment of
the arrears of salary due to respondent No.7
since during the pendency of the above petition,
respondent No.7 has retired from service.
22. Answer to point No.10: In the above
circumstances, whether there is any enquiry
which is required to be conducted in terms of
Section 25 of the Karnataka Societies
Registration Act, 1960?
22.1. There are allegations and counter allegations as
regards the management of the society. I have
hereinabove held that the Act of 1920 is not
applicable and the registration of the erstwhile
entity as Society is proper and correct.
22.2. In the earlier round of the litigation in WP
No.70187/2012, an enquiry was directed to be
conducted by the District Registrar as regards
the registration of the society, which the District
Registrar conducted and reported that the
registration is proper. However, since there
being allegations in the past, which continued in
these proceedings as regards the management
of the society, it would but be required that the
District Registrar be directed to conduct an
enquiry in terms of Section 25 of the Act and if
so required depending on the basis of the finding
in the enquiry, the State would resort to the
exercise of powers under Section 27A of KSR
Act.
22.3. Hence, the District Registrar is directed to
conduct an enquiry under Section 25 of the KSR
Act, 1960 and submit a report as regards the
accounts maintained by the Society,
management of the society including the
mismanagement of the society by exercising all
powers under Section 25 of the Act of 1960,
within 90 days of the receipt of the certified copy
of this order. Both the sets of parties are
directed to bring the above direction to the
attention of the Jurisdictional District Registrar.
23. Answer to point No.6: What Order?
23.1. In view of the above I pass the following order,
23.1.1. WP No.77680/2013 and WP
No.101972/2017 are dismissed;
23.1.2. WP No.81667/2013 is allowed a certiorari
is issued the order dated 04.03.2013 by
the learned Principal District Judge,
Belgaum in Miscellaneous Petition
No.295/2012 as per Annexure-P and
order dated 09.07.2013 on I.A.No.II in
Miscellaneous Case No.295/2012 as per
Annexure-S are hereby quashed.
23.1.3. WP No.101436/2018 is disposed with a
direction that the society forward the
claim as regards the amounts due to
respondent No.7 therein to the concerned
authorities and to ensure that the due
payments are made to respondent No.7.
23.1.4. The District Registrar is directed to
conduct an enquiry into the affairs of the
Society under Section 25 of the KSR Act,
1960 and submit a report as regards the
accounts maintained by the Society,
management of the Society by exercising
all powers under Section 25 of the KSR
Act, 1960 within 90 days of the receipt of
this order.
23.1.5. The Additional Registrar General of
Dharwad Bench is directed to forward a
copy of this order to the Jurisdictional
District Registrar.
23.1.6. No order as to cost.
Sd/-
JUDGE
Sh upto para 6
Vmb/PRS
