Writ Petition No. 1596 of 2008

11th April, 2008

Petitioner Counsel: Mr. ANAND PARCHURE
Respondent Counsel: Mr. H. D. DANGRE,Mr. S. Y. DEOPUJARI

Cases Cited:
Income Tax Officer, Cannanore Vs. M. K. Mohammed Kunhi, AIR 1969 SC 430 [Para 3]
R. P. Naidu Vs. Kashibhotla Venkata Sivudi, 1983 Mh.L.J. 1005 [Para 3]
State of Mah. Vs. M.V. Ghaglge, 1991 Mh.L.J. 1557 [Para 3]
Tilaksingh Ramsingh Aulan Vs. Pyarookhan @ Mohd. Inamussuddinkhan Saifuddinkhan, 1996[2] Bom.C.R. 441 [Para 3]
Shivprasad Shankarlal Pardeshi Vs. Leelabai Badrinarayan Kalwar, 1998(1) Mh.L.J. 444 [Para 3,4]
Eruch Merwan Irani Vs. Sardar Sorabji Ruttonji Patel, 2000(3) ALL MR 1=2001[2] Mh.L.J. 654 [Para 3]
Rajendraprasad R. Singh Vs. Municipal Corporation of Gr. Bombay, 2003(3) ALL MR 589=2003[3] Mh.L.J. 757 [Para 3]
Arun Keshavrao Mone [Mane] Vs. Ramesh Balvant Baxi, 2006(2) ALL MR 136=2006(2) Mh.L.J. 203 [Para 3]

JUDGMENT

JUDGMENT :- At the outset, learned Advocate Mr. H. D. Dangre for respondent no.1 has raised following objection as to maintainability of Writ Petition. The objection can be summarized as follows :-

The order, in question, is arising out of proceedings under Section 22 of the Bombay Public Trusts Act, which were finally decided, and an application under Section 70, which is in the shape of an appeal, is pending, wherein the prayer for stay has been rejected, which order is a decision capable of a further challenge under Section 72 of the Bombay Public Trusts Act. Therefore, due to availability of alternate remedy, present Writ Petition is not maintainable.

2. According to learned Advocate Mr. Dangre, there is no distinction, such as orders and decrees under the provisions of Bombay Public Trusts Act. Similarly, no distinction is made as interlocutory and final orders or decisions. In absence of such distinction, all orders will be capable of a challenge in the channel provided under the Act.

3. Learned Advocate Mr. Dangre has placed reliance on following reported judgments to substantiate his contention:-

[a] Income Tax Officer, Cannanore Vs. M. K. Mohammed Kunhi [AIR 1969 SC 430],

[b] R. P. Naidu & ors. Vs. Kashibhotla Venkata Sivudi & another [1983 Mh.L.J. 1005],

[c] State of Mah. Vs. M. V. Ghaglge & another [1991 Mh.L.J. 1557],

[d] Tilaksingh Ramsingh Aulan & another Vs. Pyarookhan @ Mohd. Inamussuddinkhan Saifuddinkhan & ors. [1996[2] Bom.C.R. 441],

[e] Shivprasad Shankarlal Pardeshi Vs. Leelabai Badrinarayan Kalwar & ors. [1998(1) Mh.L.J. 444],

[f] Eruch Merwan Irani & another Vs. Sardar Sorabji Ruttonji Patel & ors. [2001[2] Mh.L.J. 654 : (2000(3) ALL MR 1)],

[g] Rajendraprasad R. Singh Vs. Municipal Corporation of Gr. Bombay [2003[3] Mh.L.J. 757 : (2003(3) ALL MR 589)],and

[h] Arun Keshavrao Mone [Mane] & ors. Vs. Ramesh Balvant Baxi & another [2006(2) Mh.L.J. 203 : (2006(2) ALL MR 136)].

4. Reference to the Division Bench Judgment of this Court in case of Shivprasad S. Pardeshi & ors. Vs. Leelabai B. Kalwar & ors. [cited supra] shall suffice. In this judgment, it is laid down that the application under Section 72 of the Bombay Public Trusts Act is in the form of a Second Appeal having scope similar to Section 100 of Civil Procedure Code and has to be considered accordingly though worded as application and Bombay High Court Appellate Side Rules provide that this application be registered as First Appeal.

5. Any express provision of a challenge to interlocutory order is not seen in the scheme of Bombay Public Trusts Act. However, carving out revisional jurisdiction is done in Section 70-A of the Bombay Public Trusts Act, which would essentially imply that interlocutory orders, as prescribed therein, can be challenged by filing a petition under Section 70.

6. In the present case, order impugned is passed by Joint Charity Commissioner. Even a revision against that order under Section 70-A is not provided by this Section.

7. The definitions of terms "order" and "decree" are not given in Bombay Public Trusts Act, as distinctly given in Civil Procedure Code. It is nowhere prescribed that these definitions do not apply to provisions of the Bombay Public Trusts Act. Guidance from these definitions can certainly be sought. Relying on the reported judgment as above, as noted in foregoing para no.4, i.e., case of Shivprasad Pardeshi Vs. Leelabai B. Kalwar & ors., the orders referred to in Section 70 and Section 72 are essentially final orders comparable with "decree" being final adjudication of rights of parties.

8. The appeal is a creation of a statute. It cannot be inferred by implication, nor ought be included in a definition/scheme of appellable orders in absence of express permission by a statute. Going by this yardstick, though the Bombay Public Trusts Act does not make distinction between final order and interlocutory order as to appellable decisions, it follows that the decision to be appealed against is a final decision and not the interlocutory order. The Court cannot enlarge the scope of appellable decision, including interlocutory orders to be appellable when law does not so spell out.

9. The objection as to maintainability of the Writ Petition is, therefore, overruled.

10. The petition is, therefore, taken up for final hearing and disposal.

11. Rule. Rule is made returnable forthwith. Heard by consent.

12. The case proceeds on certain admitted facts, which are as follows :-

[a] On 27th February, 2002, respondents claim that election of new Managing Committee was held.

[b] Change Report No.296/2006 was not punctually filed, which was filed only on 18th November, 2006.

[c] Change Report is accepted by Deputy Charity Commissioner vide order dated 23rd July, 2007.

[d] Petitioners are aggrieved by said acceptance of Change Report and alleging before Joint Charity Commissioner, Nagpur, that said acceptance is illegal under Section 70 of the Bombay Public Trusts Act.

[e] Application under Section 70 of the Act is in the shape of appeal at first instance and it is pending.

[f] During pendency of appeal, on petitioners' application for stay, initially status quo as to Schedule-I was granted, but after hearing, application has been rejected.

13. On perusal of application for stay at Annexure-V, it reveals that it does not demonstrate any factual statement as to who is managing the affairs of Trust.

14. Application does not reveal a grievance that Trust is mis-managed.

15. Any pleadings as to hardship are not on record. All that is alleged in application for stay is that the election was not legally held. Based on these allegations, prayer of stay of Deputy Charity Commissioner's order has been made.

16. The stay application is devoid of averments as contemplated by Rule 5 of Order 41 of Civil Procedure Code or other essential ingredients. Any order under appeal cannot be stayed just for the sake of asking.

17. Moreover, it is not shown that an elected body does not enter the office unless certain eventuality takes place. The elected body, thus, assumes the office, and what the Asstt. Charity Commissioner does is making a quasi-judicial enquiry and entering the names of elected persons as trustees in order to render the official records to conform with the actual functioning of the Trust.

18. In these premises, order impugned is only possible order and hence it is neither erroneous on facts nor in law. No interference is, therefore, warranted.

19. In the result, petition merits no interference. Rule is discharged. Parties are directed to bear own costs.

Petition dismissed.