2013 Supreme(Bom) 1440

IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
A. B. CHAUDHARI, J.
Shri Shakil Musa Patel &Anr.
Vs.
Shri Dilipsing Pratapsing Patil & Ors.
Second Appeal No. 225 of 2013
Decided On : 31st July, 2013

Headnote:Bombay Public Trusts Act, 1950 - Section 41-A - Enrollment of members of Trusts.

       Orders passed in respect of enrollment of members, have no adjudicatory effect and not binding in nature. - It is thus clear from the legal position set out by Court in the aforesaid paragraphs that any order under Section 41-A of the Trust Act is subject to the other provisions of the Act including the orders made by the higher Courts or authorities as well. These orders are administrative in nature and did not have any adjudicatory effect or binding nature. The orders under Section 41-A are required to be made in emergent or other situations of various types discussed in the said Division Bench judgment.

       Coming back to the facts of the instant case, the substantive dispute amongst the parties was disposed of by the Jt. C.C. in appeals against which applications under Section 72(1) of the Trust Act were pending before the District Court. Any direction under Section 41-A of the Trust Act in relation to the dispute that was pending before the District Court as aforesaid could be sought, if at all necessary, from the District Court. In other words, it was only the District Court which was the proper and legal forum to issue any directions under Section 41-A, since it was in seisin of main and substantive matters before it. The Jt. C.C. having disposed of the appeals could not have at all touched the issue arising in the matters pending before the District Court by taking direct recourse to Section 41-A of the Trust Act. The order dated 7.5.2003 made by the Jt. C.C. was in fact as a sequel to his own decision dated 28.3.2002 in the two Appeal Nos. 86/2001 and Appeal No. 87/2001. But since applications under Section 72(1) of the Trust Act in the said matters were pending before the District Court, he a with illegality and judicial impropriety.

       The said order dated 7.5.2003, in fact was an integral part of the basic dispute or in the nature of sequel to the basic dispute which was decided by the Jt. C.C. Therefore, the District Court while examining the merits of common judgment and order dated 28.3.2002 in Appeal Nos. 86/2001 and 87/2001 was obviously entitled to test the validity of said order dated 07.05.2003, since that was under Section 41-A of the Trust Act and was subject to the further orders by the competent Court namely the District Court herein. In terms of the ratio of the Division Bench judgment cited supra, the said order dated 7.5.2003 must yield to the ultimate adjudication by the District Court in the applications pending before him, which he decided by his impugned judgment dated 24.1.2013.

       It is true that under Section 72(1) of the Act no application before the District Court is provided against order under Section 41-A of the Trust Act. But then as per legal position set out by the Division Bench, such an order under Section 41-A merges into the judgment and order in the substantive proceedings. Thus the orders dated 30.7.2002, 2.9.2002 and final order dated 7.5.2003 in Application No. 15/2002 made by Jt. C.C. accepting new membership of 418 members by Shakil Musa Patel .and rejecting new membership of 422 members by Deelipsing would and must, merge into the judgment and order dated 24.1.2013 made in the substantive proceedings by the District Court.

       The said order dated 7.5.2003 does not have any independent existence in the same subject-matter decided by the District Court. Therefore, even if the said order dated 7.5.2003 had not been put to challenge alike the Application No. 119/2003, the District Court was entitled to bring such an order in conformity with the substantive adjudication upon taking cognizance of such an order like the one dated 7.5.2003.

       Nay even the parties and the Courts would be entitled to ignore the entire or the part of such order which is in conflict with the substantive adjudication of the dispute by the same or the higher Courts in other proceedings also. Hence for the above reasons ultimate decision to set aside the order dated 7.5.2003 though in Application No. 119/2003 purported to be under Section 72(1) of the Trust Act must be held to be legal, correct and proper. Court answered question No. 2 in the negative.

       Bombay Public Trusts Act, 1950 - Section 41-A - Enrollment of new members of Trust.

       Where no public advertisement was published inviting applications for membership, enrollment of new members of Trust already having 80 members, illegal. - The District Court has recorded a finding that there was no legal and valid managing committee to enroll new members after the death of ’N’ on 15.8.2000. The general body then consisted of only 80 members, but new enrollment of members was never made by general body. On the contrary, both the rival groups who did not have any legal stand went on making new members. Membership to a public trust unlike a co operative society is not a "open" membership. As has been repeatedly held by the Apex Court, it is in the nature of agreement or contract between the trust and the members and purely for service to charitable trust and its institutions.

       It is further seen that, in a sudden eruption, after the death of Narayansingh in a very short period of a few days, both the rival groups have enrolled new members each around 340. In the absence of any justifiable reason for doing so. It is not possible to countenance such a move on the part of rival groups. That apart, it clearly appears that in order to gain complete control over the trust both ’S’ and ’D’ made most equal members on their own. Can this be termed as the service to a charitable trust. The trust already has 80 old members which figure itself is on a pretty higher side. It is further seen from the record that, no public advertisement was published inviting applications for membership of the trust, if at all these two groups really wanted to have large number of members in the trust for whatever reason.

       The trust is a public trust and not a private affair of both the rival groups. They cannot be allowed to deal with the affairs of the trust with such a perversity and political goaL It is due to this, the trust has fallen into litigation and that is the reason why exercised power under Section 103 of the CPC.

       Fairness demanded that if the trust wanted to have large number of members, a public advertisement in leading news papers should have been published inviting applications. That was not done. That being so, the core issue about the membership of the new persons must be answered by holding that new enrollment of members by both the rival groups headed by ’S’ and ’D’, over and above original 80 members is completely illegal.

       Bombay Public Trusts Act, 1950 - Sections 41-A and 72(1) - Enrollment of members of Trusts.

       Joint Charity Commissioner, after verifying claims for membership, rejecting claims of one group by taking diametrically opposite view about enrolling members, acted with illegality.