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2013 Supreme(Bom) 1583
In the High Court of Bombay at Aurangabad
A.B. CHAUDHARI, J
Vijaykumar & Others
Versus
Manohar & Others
Second Appeal No. 708 of 2010
Decided On : 19-08-2013
Advocate Appeared:
For the Appellants:V.J. Dixit, Senior Counsel i/by S.V. Natu, Advocate.
For the Respondents:R1, S.B. Talekar, Advocate, R2 to R4, deleted.
Headnote:Bombay Public Trust Act, 1950 - Section 41-D(4) - Voluntary resignation. - Held, acceptance of voluntary resignation of trustee by "body of fit persons" constituted by order of Court, is valid. It is thus clear that, it is by virtue of the provisions of law under Section 41-D(4) of the B.P.T. Act that the body of fit persons is appointed. That being so, Court has no hesitation in answering the substantial question No. 1 in affirmative.
EVIDENCE ACT, 1872 - Section 115 - Applicability of estoppel. - Trustee of public trust, voluntarily tendering his resignation, is estopped from challenging authority of "body of fit persons" constituted by order of Court in accepting his resignation. - The respondent No. 1 voluntarily tendered his resignation as trustee and member of the trust to the body of fit persons, who had appointed him as a trustee, though originally he was member of the trust. However, since he himself wanted to tender resignation of both as trustee and member and tendered accordingly and does not raise any dispute even now about his act of resignation as trustee as well as member, is clearly estopped by his declaration from putting to challenge the acceptance of change report of resignation on the principles of estoppel by conduct. He is also estopped on the said principle to challenge the authority, of the body of fit persons to accept his resignation as trustee as well as member. The statement made by counsel for the respondent No. 1 that, the body of fit persons should be held as `de-facto’ trustees as held by the two Courts below, does not appeal to me for the above reasons. His second submission that, as member of the trust at least the acceptance was illegal also does not impress me, since the body of fit persons was authorized to administer the trust and its affairs and also to take steps for appointment of other trustees which would also include acceptance of resignation as a trustee or member. The body of fit persons was incharge of the trust in place of the members of the trust which became functional as constituted by the rules and regulations of the trust.
FACTS:
1. This appeal relates to the disputes amongst the trustees/members of an educational trust registered under the provisions of the Bombay Public Trust Act (hereinafter referred as to the "B.P.T. Act" for the sake of brevity). When the dispute reached the Court of Additional District Judge, Nilanga Camp at Latur, the learned Additional District Judge, Nilanga on03.05.2002 in Misc. Application No. 29/1999 and Misc. Application No. 52/1999 made the following operative order.
ORDER
i) The application bearing M. A. No. 29/99and cross objection therein are here by dismissed.
ii) The application bearing M. A. No. 52/99stands allowed and the impugned order of removal of the applicants therein from trusteeship of the trust Mahatma Basweshwar Shikshan Sanstha, Latur PTR No. F52 (Latur) is hereby set aside.
The direction to Assistant Charity Commissioner, Latur and stipulation imposedon the trustees under impugned order shall stand vacated.
iii) The applicants in M. A. No. 52/99 to hold the reins of the administration of the trust and to take steps for appointment of other trustees according to the provisions of the instrument of the trust or in accordance with the provisions of Bombay Public Trust Act, 1950.
iv) No order as to costs.
2. Under operative order Clause (iii) he directed that the applicants in M. A. No. 52/1999 to hold the reins of administration of trust and to take steps for appointment of other trustees. Pursuant to the said direction in 2002 Manohar Keshavrao Patil/respondent No. 1 herein was appointed as trustee by the said body of "fit persons" which came intoexistence pursuant to the said judgment and order dated 03.05.2002. However, on 24.10.2006, the respondent No.1/Manohar Patil resigned from the post of trustee as well as member of the trust by filing an application in writing and that application was considered by the said body of 'fit persons' which accepted his resignation by resolution passed by committee on 31.10.2006 and a Change Report about it was filed vide Change Report Enquiry No. 689 of 2006 before the Assistant Charity Commissioner, Osmanabad. The Assistant Charity Commissioner conducted the proceedings of enquiry in absence of the respondent No. 1/Manohar Patil, because he and his advocate were absent and did not adduce any evidence to prove his case after filing his reply Exhibit 13 dated 16.03.2007. Consequently, the Assistant Charity Commissioner, Osmanabad accepted the said change report and directed necessary amendment to Schedule I by his order dated 29.01.2009. The respondent No. 1challenged the said order in Revision Application No. 31/2009before the Joint Charity Commissioner Latur who on 11.03.2010allowed the said revision and held that under Clause 29 of the Constitution of the trust, governing council has power to suspendor cancel the membership of person in case of misconduct committed by such person and, therefore, the governing council is empowered to accept the resignation, but he stated that the body of 'fit persons' not being elected trustees of governing council were not competent to accept the resignation of Manohar Patil as trustee and member of the trust, because body of fit persons was not 'dejure' trustees, but was 'defacto' trustees. Thereafter, the matter went before the District Judge 1, Latur at the instance of present appellants, who filed Application U/Sec. 72(1) of the B.P.T. Act before the District Court, who concurring with the findings recorded by the Joint Charity Commissioner dismissed the application. Hence this second appeal.
SUBMISSIONS:
3. The learned senior counsel for appellants Shri V. J. Dixit, instructed by Shri S. V. Natu made the following submissions:
i) The direction No. 3 in the operative part of the judgment dated 03.05.2002 by the District Court clearly shows that the body of fit persons was required to take reins of administration of the trust in entirety and there is no prohibition or limitations put on said body of fit persons
