Sadanand Shantwan Salvi and others vs Nasik Diocesan Council Reg. Trust and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1997 Supreme(Bom) 131

IN THE HIGH COURT OF BOMBAY
R.G. Vaidyanatha, J.
Shri Sadanand Shantwan Salvi others.... Appellants.
Versus
The Nasik Diocesan Council Reg. Trust others.... Respondents.
First Appeal Nos. 1587, 1628, 1629, 1630, 1631, 1686, 1687, 1688, 1689 1691 of 1996, decided on 13-3-1997.
Advocates appeared :
G.S. Godbole with Uday Warunjkar, for appellants in F.A. No. 1587, 1628, 1629, 1630, 1631 of 1996.
A.G. Toraskar A.G.P. in F.A. No. 1587, 1628, 1629, 1630 of 1996.
A.G. Balkundi in person in F.A. No. 1587, 1628, 1629, 1688, 1689 of 1996, for respondent No. 10 in F.A. No. 1689, 1691 of 1996.
V.A. Gangal, for respondents Nos. 1 3 in F.A. No. 1587, 1628, 1629, 1630, 1631 of 1996.
P.N. Joshi, with Nagar with R.V. Govilkar, for respondent No. 2 in F.A. No. 1587, 1628, 1629, 1630, 1631 of 1996, respondent No. 1 in F.A. No. 1687, 1688 of 1996, respondent No. 9 in F.A. No. 1691 of 1996.
P.N. Joshi, for respondent No. 1 in F.A. No. 1686 of 1996.
N.B. Shah, for respondent No. 8, 9 10 in F.A. No. 1630, 1631 of 1996.
P.B. Shah with S.A. Sawant, for appellants in F.A. No. 1686, 1687, 1688, 1689, 1691 of 1996.
K.K. Tated, for respondent No. 4 in F.A. No. 1587 of 1996, respondent No. 16 in F.A. No. 1628 of 1996, respondent No. 10 in F.A. No. 1629 of 1996, respondent No. 23 in F.A. No. 1630 of 1996, respondent No. 24 in F.A. No. 1631, 1686, 1687, 1688 of 1996, respondent No. 3 in F.A. No. 1686, 1687 of 1996, respondent No. 12 in F.A. No. 1691.

Headnote:Section 72(4)-Civil Procedure Code. 1908, Sections 96 and 10G-Appeal under Section 72(4)Second appeal under Section 72(4) of the Act lies both on facts on law and not limited to substantial question of law like second appeal under Section 100 Civil Procedure Code.
       Section 72(4)-Civil Procedure Code, 1908. Section 100Facts and law-Both appealable under Section 72(4)-Civil Procedure Code. 1908. Section 100 no applicable.- The power under Section 72(4) of the Act is not limited in any way by invoking Section 100, Civil Procedure Code. Since. Court is concerned with a special statute, with special provisions of appeal and special forum, Court need not be guided by the limitation of a second appeal under Section 100. Civil Procedure Code.
       The second appeal under Section 72(4) of the Act lies both on facts and law and not limited to substantial question of law like the second appeal under Section 100, Civil Procedure Code.
       Sections 96 and 100-See Bombay Public Trust Act. 1950. Section 72(4).
       Section 100-See Bombay Public Trust Act. 1950. Section 72(4).

JUDGMENT

R.G. VAIDYANATHA, J. :---All these 10 appeals are interconnected and pertain to one and the same dispute. They arise out of a common order dated 23-10-1996 passed by the learned Additional District Judge, Nasik. Common arguments were heard addressed by the learned Counsel appearing for the appellants and respondents. Hence all the 10 appeals are being disposed of by this common judgment.

2.First appeals numbers, corresponding case numbers of the District Judge and corresponding case numbers of the Asst. Charity Commissioner are as follows:-

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Appeal in HighCivil Misc. ApplicationScheme Application before

Court before District Judgethe Asst. Charity Commis-sioner

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F.A.C.M.C.S.C.A.1. 1587/96167/9211/96

2. 1628/96164/9211/90

3. 1629/96166/9212/91

4. 1630/96168/92 2/89

5. 1631/96204/9212/91

6. 1686/96166/9212/91

7. 1687/96167/9211/90

8. 1688/96168/92 2/89

9. 1689/96204/9212/91

10. 1691/96 164/9211/90

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2A.The facts, which are necessary for the disposal of these appeals are as follows:-

Earlier there was a Trust by name Nasik Diocosan Trust Association Ltd., which was registered as a Company under the Companies Act in 1943. Subsequently the said Trust came to be registered as a Public Trust under Bombay Public Trust Act, 1950 on 13-7-1954 (herein after referred to as the Act). Then the Assistant Charity Commissioner prepared a scheme for the said Trust in 1967. Under this scheme Bishop is an ex-officio Chairman of the board of trustees. It appears some of the trustees and some of the beneficiaries and members of the Trusts were not satisfied with the working of the Trust. Some of them filed three scheme applications being 2/89, 11/90 and 12/91 under section 50-A(3) of the Act before the Assistant Charity Commissioner, making allegations against the Bishop and the board of trustees. It was alleged that the trustees are not acting in the interests of the trust. Allegation of mismanagement and diversion of funds were alleged against the Bishop and the trustees and it was further alleged that no elections were held for the board of trustees from the beginning. It is alleged that the Bishop has not accounted for the funds of the Trust and has been mismanaging the funds of the Trust. Then allegations were made about alienation of the Trust property without the permission of the Charity Commissioner. Therefore, these applicants prayed for amendment of the Trust Scheme of 1967.

After recording evidence and after hearing arguments, the learned Assistant Charity Commissioner by his order dated 10-4-1992 allowed the applications and made some amendments to certain clauses of 1967 scheme.

3.Being aggrieved by the order of the Assistant Charity Commissioner some of the trustees and others filed 5 applications under section 72 of the Act before the Additional District Judge. After hearing both the sides the learned Additional District Judge, Nasik by impugned common judgment dated 23-10-1996 allowed the application partly and modified the order of the Assistant Charity Commissioner regarding amendment of some of the clauses.

4.Being aggrieved by the order of the Additional District Judge, the various appellants have come up with these 10 appeals.

The learned Counsel appearing for the appellants have questioned the correctness and legality of the impugned order of the learned Additional District Judge. It was argued that the lower Court's order restoring the Bishop as ex-officio Chairman of the Trusts is illegal and not supportable from the materials on record. Then arguments were addressed regarding certain other clauses amended by the Additional District Judge. One of the learned Counsel appearing for one of the respondents in some of the ap

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1997 Supreme(Bom) 131

Cases Referred (3)