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2019 Supreme(Bom) 620
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
Sunil K. Kotwal, J.
Uttam Vithalrao Tekale – Appellant
Vs.
Rajabhau Sopan Shelke – Respondent
First Appeal No. 1847 of 2016; Civil Application No. 6475 of 2016
Decided On : 18-04-2019
V.D. Salunke, Adv., N.P. Patil (Jamalpurkar), Adv.
Headnote:
Bombay Public Trusts Act, 1950 – Sections 50, 80, 51 – Societies Registration Act, 1860 – Approval of the scheme – Appeal is directed by Original Defendant Nos. 11 to 13, against the judgment and decree passed by the District Judge-III, Osmanabad, in Trust Suit, whereby the scheme was framed for the proper management of the trust Shri. Sant Goroba Kaka Shikshan Prasarak Mandal, Karanjkheda, Tq. Kalamb, District Osmanabad – Respondent Nos. 1 and 2 are Original Plaintiffs and other respondents are Original Defendants. – In fact, this is the second round of litigation in between the same parties after the remand of suit by this Court, in accordance with directions given in the First Appeal – Whether the suit is filed by two or more persons having interest in the Trust ? No. Plaintiff No. 2 has no interest in the trust. – Whether the suit is bad for want of prior consent of the Charity Commissioner to institute the suit ? Suit is not tenable in absence of prior permission of Charity Commissioner. – Whether the District Court has powers to sanction new scheme or to amend the existing scheme ? In the affirmative. – Whether the management of the trust is adversely affected due to lack of powers and duties of the President and Secretary of the trust under the Constitution of the Trust ? In the negative. – Whether defendant Nos. 1 to 9 can be directed to manage the affairs of the trust in accordance with new scheme ? In the negative. – Whether the decree passed by the Trial Court is correct and proper ? In the negative. – What order ? Appeal is allowed and Suit is dismissed. – Held, District Court, Osmanabad, within whose jurisdiction the subject matter of the trust is situated, can give relief regarding the settlement of new scheme as proposed by the plaintiffs. – So also, the Divisioin Bench of this Court in "Khojeste Mistree & Ors. v. Minoo Rustomji Shroff & Ors." [supra] after considering the judgment of the Supreme Court in Raje Anandrao v. Shamrao, (1961) AIR SC 1206 held that "the court has jurisdiction to frame the scheme and sanction the scheme".– In view of Section 50 of the Trust Act for seeking relief regarding directions to the Trustees for proper management of the trust and relief of sanction of new scheme of the trust, prior consent of the Charity Commissioner is necessary. – In the case at hand, undisputedly, prior consent of the Charity Commissioner before institution of the suit is not obtained. – Therefore, otherwise also, under Section 50 read with Section 51 of the Trust Act suit is not maintainable as held by Gujrat High Court in "Patel Nanji Devji and others v. Patel Jivraj Manaji and others"[supra]. – Only due to lack of special powers to the President and the Secretary, the affairs or management of the trust is not adversely affected. – Even plaintiff Rajabhau Shelke (PW 1) has admitted in his cross-examination that till the institution of the suit, the affairs of the trust were running as per its Constitution and till the date of the institution of the suit, he did not find any ambiguity in the Constitution of the trust. – He has also admitted the Constitution of the trust. – Even, plaintiff no. 2 Rameshwar Jadhav (PW 2) has admitted in his cross-examination that the management of trust is conducted as per the regulations of the Trust and the Constitution of the Trust. – It is to be held that due to lack of special powers to the President and the Secretary of the trust, the management of the trust is not adversely affected, which requires the settlement of new scheme. – Court have no hesitation to hold that plaintiffs miserably failed to prove that due to lack of powers of the President and the Secretary of the trust, the management of the trust is not adversely affected, which requires the settlement of new scheme – First Appeal Allowed
Sunil K. Kotwal, J.
This appeal is directed by Original Defendant Nos. 11 to 13, against the judgment and decree passed by the District Judge-III, Osmanabad, in Trust Suit No. 01 of 2004, whereby the scheme was framed for the proper management of the trust Shri. Sant Goroba Kaka Shikshan Prasarak Mandal, Karanjkheda, Tq. Kalamb, District Osmanabad (hereinafter referred to as the 'Trust'). Respondent Nos. 1 and 2 are Original Plaintiffs and other respondents are Original Defendants. In fact, this is the second round of litigation in between the same parties after the remand of suit by this Court, in accordance with directions given in the First Appeal No. 127 of 2014. (hereinafter the parties are referred in accordance with their status in the original proceeding as Plaintiffs and Defendants).
2. Facts leading to the institution of this appeal are that plaintiffs filed a Trust Suit for approval of the scheme framed for the management of the Trust and for directions to defendant Nos. 1 to 9 to run the affairs of the Trust in accordance with new scheme. The admitted facts in between the parties are that the Trust is registered under the Societies Registration Act, 1860, as well as under the Bombay Public Trusts Act, 1950, vide registration No. MAH-168/91 F-2238 in the year 1991. At the time of registration of the Trust, the Constitution of the Trust was framed and the affairs of the Trust were managed in accordance with the said Constitution.
3. The contention of the plaintiffs is that they are also the Trustees of the said Trust and the Constitution of the Trust is defective, as no provisions are made to empower the President, Secretary, The Treasurers, The Joint Secretary and other Office Bearers of the Trust to manage all activities of the Trust. As no specific powers are assigned to the Office Bearers of the Trust, complications arise while managing affairs of the Trust. Therefore, plaintiffs framed new scheme for the trust assigning specific powers and duties to the President, Secretary, The Treasurers, the Joint Secretary and the other Office Bearers of the Trust and filed this suit for the approval of the said scheme and for directions to defendant Nos. 1 to 9, to manage the affairs of the Trust in accordance with new scheme.
4. By filing the Written Statement (Exh. 48), defendant No. 1 opposes this suit, on the ground that the District Court has no jurisdiction to entertain the suit and by filing such suit, plaintiffs cannot change rules and regulations, which are for the management of the affairs of the Trust. The contention of the defendants is that the rules and regulations of the Trust can be changed only by filing change report before the Assistant Charity Commissioner and not by filing the Civil Suit. According to defendant, the change report is already pending before the Assistant Charity Commissioner and therefore, plaintiffs have no right to file such suit. Defendant No. 11 has countered the suit only on the ground of its maintainability.
5. By filing pursis (Exh.59), defendant Nos. 12 and 13 have adopted the Written Statement filed by defendant No. 11. Defendant Nos. 1 to 3, 5, 8 and 9 filed the Written Statement (Exh. 73) and admitted the suit claim.
6. After considering the evidence placed on record by both parties, the Trial Court pleased to decree the suit by accepting the scheme proposed by the plaintiffs and by issuing directions to the defendants/trustees to run the affairs of the management of trust in accordance with the new scheme. The correctness of that decree is under challenge in the present appeal.
7. Heard Shri. V.D.Salunke, the learned counsel for Appellants and Shri. N.P. Patil (Jamalpurkar), the learned counsel for Respondent Nos. 1 to 7, 10 and 11.
8. Learned counsel for appellants assailed the judgment and decree passed by the Trial Court on the ground that the suit is not maintainable
