Civil Application No.809 of 2006,First Appeal No.829 of 2003

2nd December, 2008

Petitioner Counsel: Mr. P. R. PATIL
Respondent Counsel: Mr. S. S. MANALE,Mr. N. K. KAKADE,Mr. A. I. DESHMUKH,Mr. S. P. DOUND

Cases Cited:
Shapoorji Data Processing Ltd. Vs. Ameer Trading Corporation Ltd., 2003(1) ALL MR 1013=AIR 2003 Bom 228 [Para 7]
Smt. Jatan Kanwar Golcha Vs. M/s. Golcha Properties Pvt. Ltd., AIR 1971 SC 374 [Para 7]
A. A. Gopalkrishnan Vs. Cochin Devaswom Board, (2007)7 SCC 482 [Para 10]
T. Thimmaiah (D) by L.Rs. Vs. Venkatachala Raju (D) by L.Rs., 2008 ALL SCR 1823 : 2008 AIR SCW 3980 [Para 12]
Ahmedabad Electricity Co. Ltd. Vs. State of Gujarath, AIR 2003 Guj 157 [Para 12]
Lily Thomas Vs. Union of India, 2000(3) ALL MR 251 (S.C.) [Para 12]
Dr. Madan Gopal Vs. Din Dayal, AIR 1988 P & H 124 [Para 13]
Vasant Jaiwantrao Mahajan Vs. Tukaram Mahadaji Patil, AIR 1960 Bom. 485 [Para 13]

JUDGMENT

JUDGMENT :- This application is filed for review of order dated 29th September, 2003 rendered by this Court, while disposing of First Appeal No.829/2003 in view of consent terms filed by respondent Nos.1 to 7 and to direct denovo hearing of the appeal.

2. A brief resume of background facts may be stated as follows :

There are 3 separate temples of deities Mahadeo, Jagdamba and Vitthal at village Kolhar under Shrirampur Tehsil. There are 3 separate trusts for management of the said temples. A scheme, u/s.50-A(2) of the Bombay Public Trusts Act, was drawn for management of the Trusts. An application was filed for amalgamation of the three trusts. Consequent upon inquiry, learned Assistant Charity Commissioner directed amalgamation of the said three trusts under caption "Kolhar Bhagwatipur Devalaya Trust" bearing registration No.A-119. He prepared a scheme in respect of amalgamated Trust. An application was moved by respondent Nos.5, 6 and one Digamber Kharde for modification of the scheme, invoking provisions of section 72 of the Bombay Public Trusts Act, before the District Court bearing Trust Application No.08/1992. Learned IVth Additional District Judge, Ahmednagar, held that the scheme required certain modifications. The learned Additional District Judge held that the power of selection of trustees should be given to the devotees. He observed that the devotees are the proper persons to judge performance of the trustees and select them. He directed that the trustees shall be from village Kolhar and the Gramsabha of the village shall select the trustees.

3. The judgment and order rendered by the learned Additional District Judge in Trust Application No.08/1992 was challenged by way of appeal filed in this Court. The First Appeal No.829/2003, preferred by respondents No.1 to 4, came to be disposed of in view of consent terms filed by the parties. By order dated 29th September 2003, this Court directed that the first appeal stands disposed of in terms of the compromise.

4. The applicants are not original parties to the litigation before the Assistant Charity Commissioner or before the District Court. They are the inhabitants of village Kolhar (Bk). They claim themselves to be interested persons in the affairs of the Trust. They have filed this review application alleging that the consent terms are collusive inasmuch as the respondent Nos.1, 3, 5 and 6 got themselves declared as life trustees and the affairs of the Trust would be managed by the said respondents or through their legal heirs. It is contended that whole attempt of bringing about the compromise was to maintain control over the Trust by the family members of respondent Nos.1 to 4 in perpetuity. They would furthersubmit that the consent terms are contrary to the provisions of Rules 3 and 3-A of Order 23 of the Code o f Civil Procedure. They asserted that the consent terms are outcome of fraud. They would point out that as per the consent terms, the scheme is modified to ensure that the trustees shall work during their whole lifetime and any vacancy arising due to death or resignation would be filled up as per the will of the surviving trustees. The applicants are aggrieved by the consent terms and seek review of the order rendered in pursuance to the consent terms.

5. The application is resisted by respondent Nos.1 to 4 on various grounds. They denied that the consent terms are outcome of any fraud. They would submit that the applicants have no locus standi to challenge the consent terms. They were not parties to the original proceedings before the Assistant Charity Commissioner or in the proceedings u/s.72 of the Bombay Public Trusts Act, 1950 and, therefore, are incompetent to file the review application. They asserted that the review application is filed with a view to harass the trustees. Consequently, they sought dismissal of the application.

6. The applicants are inhabitants of village Kolhar. The judgment rendered by the learned Additional District Judge would make it manifest that the trustees were to be selected from inhabitants of village Kolhar (Bk) as per decision of the Gramsabha. This part of the direction is given serious jolt as per terms of the compromise because the respondent Nos.1 to 4 are Grampanchayat and inhabitants of village Bhagwatipur. The applicants are devotees of the deities and are persons having interest in the affairs of the public trust. They answer description of the expression "persons having interest" as defined in section 2(10) of the Bombay Public Trusts Act, 1950. Section 2(10) of the Bombay Public Trust Act, 1950 reads as follows :

"Sec.2(10) "Person having interest" includes - a) in the case of a temple, a person who is entitled to attend at or is in the habit of attending the performance of worship or service in the temple, or who is entitled to partake or is in the habit of partaking in the distribution of gifts thereof."

7. Considering the nature of modifications, directed by the learned Additional District Judge, it will have to be said that the applicants are aggrieved persons, being interested in the affairs of the said Trust. The status of the applicants would give them legal right to maintain the review application though they were not parties to the proceedings. This Court, in "Shapoorji Data Processing Ltd. Vs. Ameer Trading Corporation Ltd." (AIR 2003 Bom 228 : [2003(1) ALL MR 1013]) held that review petition at instance of person not party to the proceedings, but being "aggrieved person" is maintainable. This Court relied on "Smt. Jatan Kanwar Golcha Vs. M/s. Golcha Properties Pvt. Ltd." (AIR 1971 SC 374) in support of such conclusion. It is observed :

"Having heard learned counsel, I am of the opinion that expression person aggrieved under Order 47, Rule 1 is wider in amplitude and scope than the expression Party under Order 47, Rule 2 which restricts the parties to the lis. This is the view taken by Apex Court in Smt. Jatan Golcha (supra). It is also the view of the Apex Court in the case of K. Ajit (AIR 1997 SC 3277). In the case of K. Ajit in proceedings arose from an Order of Central Administration Tribunal. The issues raised were whether power of review was available to the Tribunal and whether a person not a party to the order could prefer a review. After considering the scope and effect thereto in Paragraph 4 of the judgment, the Apex Court finally observed as under :

"We therefore find that a right of review is available to the aggrieved persons on restricted ground mentioned in Order 47 of the Code of Civil Procedure if filed within the period of limitation"."

8. Having regard to such a legal position, I am of the opinion that the applicants are entitled to file review application. The application cannot be dismissed for want of locus standi. Applicants may be deemed as "aggrieved persons" being the interested persons in view of section 2(10) of the Bombay Public Trusts Act, 1950.

9. Coming to the merits of the rival contentions, it may be noticed that the order of this Court is rendered in terms of the consent terms filed by the parties to the first appeal. Admittedly, the matter relates to affairs of the Trust properties. It is necessary, therefore, to see whether due compliance of Order 23, Rule 3-B of the Civil Procedure Code was made. The lis before the Court indicated representative action. It is amply clear that leave of the Court was not sought for entering into the compromise. It is also manifest that due notice was not given by this Court under Sub-Rule (2) of Rule 3-B of Order 23 of the Civil Procedure Code. The compliance of Sub-Rule (2) of Rule 3-B of Order 23 of the Civil Procedure Code is mandatory in nature. Rule 3-B of Order 23 of the Civil Procedure Code reads as follows :

"3-B. No agreement or compromise to be entered in a representative suit without leave of Court - (1) No agreement or compromise in a representative suit shall be entered into without the leave of the Court expressly recorded in the proceedings; and any such agreement or compromise entered into without the leave of the Court so recorded shall be void.

(2) Before granting such leave, the Court shall give notice in such manner as it may think fit to such persons as may appear to it to be interested in the suit.

Explanation - In this rule, "representative suit" means -

a) a suit under section 91 or section 92,

b) a suit under rule 8 of Order 1,

c) a suit in which the manager of an undivided Hindu family sues or is sued as representing the other members of the family,

d) any other suit in which the decree passed may, by virtue of the provisions of this Code or of any other law for the time being in force, bind any person who is not named as party to the suit."

10. The Apex Court in "A. A. Gopalkrishnan Vs. Cochin Devaswom Board and others" (2007)7 SCC 482 held that the High Court can examine validity of the compromise decree questioned even by a third party. It is observed :

"The properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their trustees/archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of "fences eating the crops" should be dealt with sternly. The Government members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation."

11. It is the duty of the Courts to protect and safeguard the religious and charitable institutions from evil hands. It is amply clear on bare perusal of sub-rule (2) of Rule 3-B of Order 23 of Civil Procedure Code that the expression "representative suit" would include any suit filed u/s.91 or 92 of the Civil Procedure Code. The proceedings u/s.72 of the Bombay Public Trusts Act are akin to lis in such a representative suit. Obviously, while allowing the parties to enter into compromise, due notice to "interested persons" was required to be given. The Court is also required to see whether the compromise is in the interest of the Trust. The terms of the compromise, which are not for welfare of the Trust, can be rejected notwithstanding consent of the parties. Therefore, it appears that no such effort was made by this Court to examine whether the terms of the compromise were brought about in order to secure interest of the Trust and to call upon the interested persons by giving due notice to file objections, if any, before the consent terms were accepted.

12. Mr. Kakade, learned advocate for the contesting respondents, would submit that power to review the order cannot be invoked on basis of reconsideration of same facts. He seeks to rely on "T. Thimmaiah (D) by L.Rs. Vs. Venkatachala Raju (D) by L.Rs." (2008 AIR SCW 3980 : [2008 ALL SCR 1823]). He also invited my attention to a Division Bench judgment of Gujrath High Court in "Ahmedabad Electricity Co. Ltd. Vs. State of Gujarath and others" (AIR 2003 Guj 157). A Division Bench of the Gujarat High Court held that mere erroneous decision by itself would not permit the Court to undertake review. The Division Bench held that the review jurisdiction can be exercised only on the ground of error apparent on the face of record and not on any other ground. He also seeks to rely on certain observations in "Lily Thomas etc. Vs. Union of India & Ors." 2000(3) ALL MR 251 (S.C.). The Apex Court held in the given case that review application under Order 47, Rule 1 of Civil Procedure Code cannot be treated as an appeal in disguise. It is further held that it can be exercised for correction of a mistake and not to substitute a view.

13. Mr. Patil, learned advocate appearing for the applicants, invited my attention to judgment of Single Bench in "Dr. Madan Gopal Vs. Din Dayal and another" (AIR 1988 P & H 124). The learned Single Judge, Hon'ble M. M. Punchhi, as he then was, held that leave of the Court for purpose of compromise under Order 23, Rule 3-B ought to be obtained and the compromise entered into without taking the Court into confidence and without compliance of Rule 3-B would be void ab initio. Therefore, the order to withdraw the petition on basis of such compromise was held as capable of being recalled. In "Vasant Jaiwantrao Mahajan Vs. Tukaram Mahadaji Patil" (AIR 1960 Bom. 485) this court observed :

"If the relevant provision of law has not been considered at the time of passing the order, such an order can and should be reviewed if necessary by the Judge who passes that order or by his successor."

14. Considering the background facts of the present case, it prima facie appears that the terms of the compromise were brought into existence with a view to provide controlling power only to certain members of Kharde family. There is non compliance of Rule 3-B of Order 23 of Civil Procedure Code while passing the order under review. In these circumstances, it is necessary to recall the order dated 29.09.2003 rendered in First Appeal No.829/2003. Consequently, the application is allowed. The order dated 29.09.2003 is recalled and the First Appeal No.829/2003 is restored to its original position.

Application allowed.