Back
2025 Supreme(Online)(Bom) 1759
2025:BHC-AS:21629 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1156 OF 2015
1. Rizvi Education Society ]
A society registered under the Society ] Registration Act, 1960 and also under the ] provisions of Bombay Public Trust Act, 1950, ] having its existing ofoce at Rizvi House, 1st ] Floor, Hill Road, Bandra [West], Mumbai – ] 400 050. ]
2. Akhtar Hasan Rizvi ] 3. Meena A. Rizvi ] 4. Aziz Akhtar Rizvi ] 5. Saqib Akhtar Rizvi ] 6. Reshma Akhtar ] 7. Sibte Hasan Rizvi Builders ] 8. Javed Hasan ]
Respondent Nos. 2 to 8 are the ofoce ] bearers of Rizvi Education Society, having ] their ofoce at Rizvi House, 1st floor, Hill Road, ] Bandra [West], Mumbai – 400 050. ]
9. Kailash Seva Sadan Trust ]
Registered under the Bombay Public Trust ] Act, 1950 having their address at 3, Saraswati ] Niketan, Gurudeo CHS Ltd., Kashinath Dhuru ] Road, Near Kirti College, Dadar, Mumbai – ] 400 028. ]
10. Sidheshwar D. B. ] 11. Ravindra Bhaskar Nadkarni ] 12. Dilip Gonddas Sampat ] 13. Kapoor Rajendra Krishna ] 14. Pyarelal Tiwari ] 15. Arvind Malkan ]
Appellant Nos. 10 to 15 are trustees of ] Kailash Seva Sadan Trust, having their ] address at 3, Saraswati Niketan, Gurudeo ] CHS Ltd., Kashinath Dhuru Road, Near Kirti ]
College, Dadar, Mumbai – 400 028. ] ...Appellants.
Versus
1. The Brihan Mumbai Municipal Corporation ]
a statutory body constituted under the ] provisions of the then Bombay Municipal ] Corporation Act, 1888, and having its ofoce ] at Mahapalika Marg, Mumbai – 400 001. ]
2. The Assistant Charity Commissioner ]
Having his ofoce at 2nd floor, ] Dharmadayukta Bhavan, 83, Dr. Annie Besant ] Road, Worli, Mumbai – 400 018. ]
3. The Charity Commissioner ]
Having his ofoce at 2nd floor, Dharmadayukta ] Bhavan, 83, Dr. Annie Besant Road, Worli, ]
Mumbai – 400 018. ] …Respondents.
——————
Mr. Mayur Khandeparkar, Mr. Anand Pai, Mr. Mahesh R. Mishra, Mr. Arun for Appellants.
Mr. Narendra Walavalkar, Senior Advocate a/w Mr. Rahul Soman, Ms. Vidya Vyavhare, Ms. Pallavi Khale i/b Ms. Komal Punjabi for Respondent-BMC.
——————
Coram : Sharmila U. Deshmukh, J.
Reserved on : 28 th March, 2025 Pronounced on : 9 th May, 2025.
2025:BHC-AS:21629 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1156 OF 2015
1. Rizvi Education Society ]
A society registered under the Society ] Registration Act, 1960 and also under the ] provisions of Bombay Public Trust Act, 1950, ] having its existing ofoce at Rizvi House, 1st ] Floor, Hill Road, Bandra [West], Mumbai – ] 400 050. ]
2. Akhtar Hasan Rizvi ] 3. Meena A. Rizvi ] 4. Aziz Akhtar Rizvi ] 5. Saqib Akhtar Rizvi ] 6. Reshma Akhtar ] 7. Sibte Hasan Rizvi Builders ] 8. Javed Hasan ]
Respondent Nos. 2 to 8 are the ofoce ] bearers of Rizvi Education Society, having ] their ofoce at Rizvi House, 1st floor, Hill Road, ] Bandra [West], Mumbai – 400 050. ]
9. Kailash Seva Sadan Trust ]
Registered under the Bombay Public Trust ] Act, 1950 having their address at 3, Saraswati ] Niketan, Gurudeo CHS Ltd., Kashinath Dhuru ] Road, Near Kirti College, Dadar, Mumbai – ] 400 028. ]
10. Sidheshwar D. B. ] 11. Ravindra Bhaskar Nadkarni ] 12. Dilip Gonddas Sampat ] 13. Kapoor Rajendra Krishna ] 14. Pyarelal Tiwari ] 15. Arvind Malkan ]
Appellant Nos. 10 to 15 are trustees of ] Kailash Seva Sadan Trust, having their ] address at 3, Saraswati Niketan, Gurudeo ] CHS Ltd., Kashinath Dhuru Road, Near Kirti ]
College, Dadar, Mumbai – 400 028. ] ...Appellants.
Versus
1. The Brihan Mumbai Municipal Corporation ]
a statutory body constituted under the ] provisions of the then Bombay Municipal ] Corporation Act, 1888, and having its ofoce ] at Mahapalika Marg, Mumbai – 400 001. ]
2. The Assistant Charity Commissioner ]
Having his ofoce at 2nd floor, ] Dharmadayukta Bhavan, 83, Dr. Annie Besant ] Road, Worli, Mumbai – 400 018. ]
3. The Charity Commissioner ]
Having his ofoce at 2nd floor, Dharmadayukta ] Bhavan, 83, Dr. Annie Besant Road, Worli, ]
Mumbai – 400 018. ] …Respondents.
——————
Mr. Mayur Khandeparkar, Mr. Anand Pai, Mr. Mahesh R. Mishra, Mr. Arun for Appellants.
Mr. Narendra Walavalkar, Senior Advocate a/w Mr. Rahul Soman, Ms. Vidya Vyavhare, Ms. Pallavi Khale i/b Ms. Komal Punjabi for Respondent-BMC.
——————
Coram : Sharmila U. Deshmukh, J.
Reserved on : 28 th March, 2025 Pronounced on : 9 th May, 2025.
A municipality can enforce the removal of unauthorized constructions, provided it does not infringe on legitimate, permissible repairs.
Headnote:The petitioners challenged the BMC's notice dated 9th January 2025 under Section 351(1A) of the BMC Act, arguing it violated their constitutional rights. The court found no infirmity in the issuance of the notice and acknowledged that the petitioners made unauthorized alterations to the premises. The final ruling concluded with directions to the BMC to ensure only unauthorized constructions are removed, while allowing legitimate repairs to remain unimpeded.
Judgment :
1. The First Appeal impugns the judgment dated 8th May, 2015 passed by the City Civil Court in Charity Application No. 09 of 2013 quashing the order of amalgamation of Appellant No. 1 i.e. Rizvi Education Trust and Kailas Seva Sadan Trust dated 31st October, 2011 passed by the Assistant Charity Commissioner under Section 50A(2) of the Maharashtra Public Trusts Act, 1950 [for short, “the Trusts Act”].
FACTUAL MATRIX
2. Kailas Seva Sadan Trust had entered into Agreement to Sell dated 30th June, 1984 with the Respondent No. 1-Corporation in respect of their immovable property pursuant to sanction accorded under Section 36 of Trusts Act. Certain disputes arose between Kailas Seva Sadan Trust and the Respondent No.1-Corporation regarding the transaction of sale of property.
3. On 12th May, 2005, an Application No. 44 of 2005 was Trustees of ‘Rizvi Education Society’ and ‘Kailas Seva Sadan Trust’ before the Assistant Charity Commissioner under Section 50A(2) of the Trusts Act seeking amalgamation of the two trusts and to approve and sanction the draft common scheme of amalgamation and to de-register Kailas Seva Sadan Trust. By order dated 2nd December, 2005, the Assistant Charity Commissioner ordered the amalgamation and settled the common scheme.
4. The Respondent No. 1-Corporation instituted Suit No 82 of 2006 seeking specific performance of Agreement to Sell in which Rizvi Education Society as well as Kailas Seva Sadan Trust were impleaded as Parties. After the order of amalgamation dated 2nd December, 2005, Rizvi Education Society filed Suit No. 1878 of 2006 seeking a declaration that the Agreement dated 30th June, 1984 has been validly terminated and for recovery of possession of the suit land from Respondent No. 1-Corporation.
5. The Respondent No. 1 challenged the order of 2nd December, 2005 permitting amalgamation of two Trusts by way of Charity Application No. 9 of 2008 in the City Civil Court under Section 72 of the Trusts Act. By order dated 21st December, 2009, the City Civil Court allowed the Charity Application No. 9 of 2008 and remanded the matter to the Assistant Charity Commissioner with direction to issue notice to Respondent No 1 and decide the matter afresh after hearing the parties on merits.
6. Upon remand, the Respondent No. 1 filed their objections in Charity Application No 44 of 2005 to which response was filed by the Appellant No. 1. After hearing the parties, vide order dated 31st April, 2011, the Assistant Charity Commissioner allowed the Application of Trustees and passed an order of amalgamation of two trusts. The order dated 31st April, 2011 was challenged by the Respondent No 1 before the City Civil Court by way of Charity Application No. 9 of 2013, which was allowed by the impugned judgment giving rise to the present Appeal.
FINDINGS OF CITY CIVIL COURT:
7. The City Civil Court held that Respondent No. 1 was ‘person having interest’ and was entitled to maintain challenge to the order of amalgamation. It further held that under the provisions of Section 50A(2), the publication of notice in the Ofocial Gazette is mandatory and failure to follow the mandatory procedure prescribed by law vitiated the order of amalgamation. It was further held that order of Assistant Charity Commissioner does not reflect as to how the object or proper management would be served by amalgamation. It further noted that Kailas Seva Sadan Trust is entirely taken over by Rizvi Education Society and not a single Trustee is taken from the Board of Trustees of Kailas Seva Sadan Trust and it cannot be said to be a common scheme. It held that it is matter of champertous litigation prohibited by Section 23 of Contract Act. The City Civil Court further held that the objects of Rizvi Education Society and Kailas Seva Sadan Trust are not aligned and the amalgamation cannot be said to be in interest of the management and administration of the Trusts and allowed the Application directing Kailas Seva Sadan Trust to continue to exist as b
