2014(3) ALL MR 567
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
K.U. CHANDIWAL, J.
Shri Pankaj Yashwant Chaudhari & Ors. Vs. The Joint Charity Commissioner, Nashik & Ors.
First Appeal No. 1633 of 2012,First Appeal No. 1728 of 2012,Civil Application No. 10457 of 2012,Civil Application No. 11127 of 2012
5th February, 2014
Petitioner Counsel: Mr. V.D. HON, Mr. A.V. HON, Mr. P.M. SHAH, Mr. S.P. SHAH, Mr. R.P. PHATKE
Respondent Counsel: Mr. M.S. DESHMUKH, Mr. R.R. MANTRI, Mr. P.S. PARANJAPE, Mr. J.R. SHAH, Mr. V.J. DIXIT, Mr. S.B. YAWALKAR
Bombay Public Trusts Act (1950), S.47 - Appointment of trustees - Validity - Upliftment and well being of trust is paramount consideration in appointments of trustees - However, respondent appointees admittedly were residents of place located away from trust - They have neither any social linkage to trust nor sentiment, attachment to trust - They never participated in any activity to promote trust - Joint Charity Commissioner neither made any enquiry contemplated u/s.47 nor did he take care of view of only surviving trustee then - Even he did not assign any reason for appointment of respondents as trustees - Merely branding respondents as social workers - Would not justify their appointments - Order of appointment of trustees - Quashed. (Paras 13, 16, 20, 21, 22, 23, 24, 25, 26)
2. The appellants in Appeal No. 1633/2012 filed Application No. 11/2011 under section 47 of Bombay Public Trust Act, 1950 for their appointment as trustees. Similar application was preferred by Arun Dattatraya Mahale and others being Application No. 9/2011 before Joint Charity Commissioner (for short 'Jt.C.C.') under section 47 of Bombay Public Trust Act. The appellants in First Appeal No. 1728/2012 were intervenors in two applications referred above opposed Application Nos. 9/2011 and 11/2011 and from their group, two persons were nominated as trustees by the Jt.C.C.
3. Grievance is, the Jt.C.C., Nashik Division, Nashik did not follow the procedure contemplated under section 47 of the Trust Act and based on assumptions and presumptions, entertained Application No. 9/2011 with two intervenors in appointing trustees. The appellant - Vilas and others assert that they are native of village Chimthane, their ancestors were members and office bearers of trust, they are even ex-students of the school conducted by the trust, they are members of the trust since 1991 and they have natural affection and attachment towards trust, hence, they are personal interest in the trust.
4. On 16.6.1982 the trust was registered under Bombay Public Trust Act, created under Memorandum of Association, prepared by founder Members. The Memorandum of Association provides for constitution of two bodies for management namely General Body and Managing Committee. The General Body consist of members, who provided financial assistance to the trust as provided in Clause (4) of Memorandum of Association. The Managing Committee was to be of 12 persons, they were to be elected from General Body.
5. The common grievance of the appellants is, 7 out of 10 newly appointed trustees have no concern or interest with the trust, they are resident of Dhule and other parts, no concern with well being of the school or the trust and village Chimthane. It is alleged, these 7 trustees are themselves politicians or family members of local politicians from Dhule, who desire to have control over all social activities in district Dhule by grabbing several trusts.
6. Mr. V.D. Hon, learned counsel for appellants says, by reading the order under challenge no safeguards under section 47 of Bombay Public Trust Act, 1950 are followed, no procedure as contemplated is seen to have been followed. From the list of appointed persons namely Ananta Barka Chaudhari and Himmat Daga Patil, who have not applied, but still they are appointed by impugned order. Without any justification, the Application bearing No. 11/2011 is rejected, solely on the ground that grandfather of Pankaj Yashwant Chaudhari was removed as a trustees under section 41-D of Trust Act. He says, whatever misdeed, having done in past by grandfather of Pankaj Chaudhari, cannot be branded to eclipse Pankaj Chaudhari from trustee.
7. Mr. P.M. Shah, learned Senior Counsel for appellants in F.A. No. 1728/2012 pointed out effect of section 47, which contemplate, any person interested in public trust will inclusive in definition of 'any Member of such society'. The persons who had applied (who have been nominated as trustees) have no interest in the trust. There were no reasons or special cause for learned Jt.C.C. to nominate Shri. Arun Dattatraya Mahale, solely on the ground that he is social worker, but, it should have been considered that he hails from Dhule, his background or none of the other trustees' background was verified to show that how they have got interest in upliftment of the trust. He has criticized the judgment of the Jt.C.C. on the ground that no proper reasons are assigned for nominating the trustees. The intervention application is erroneously dealt with. Inspite of depositing cost on 1st March 2012, the learned Jt.C.C. recorded, it is not deposited. This is factual incorrect assumption. The appellants' intent is gagged and they are erroneously excluded. There was no enquiry as was expected and consequently, no contest. He has urged for allowing the appeal and setting aside the appointment of trustees.
8. Mr. V.J.Dixit, learned Senior Counsel for the respondents, precisely Arun Mahale and Yuvraj Chaudhari, explained scheme under section 47, which contemplate appointment of trustees, Mr. Gagre was only surviving trustee and consequently, it was emergent to appoint other trustees for smooth administration of the trust. He says, section 47 does not contemplate issuance of public notice, view expressed by learned Single Judge of this Court in 2010 (4) Mh.L.J. 253 [Avinash Ganpatrao Shegaonkar and others VS. Jaywant @ Babasaheb s/o. Vishwanath Uttarwar and Ors.] is not in legal frame. The term 'such enquiry' vests with discretion to the authority, the present trustees (respondents in appeal) have enrolled new members and they have tried to achieve smooth administration of the trust.
9. Mr. R.R. Mantri appearing for respondents in respective appeal says, section 47 operates when there is no Member to control the trust. Change report has been rejected which has been adversely affecting on the trust.
10. Mr. Deshmukh for contesting respondent No. 3 - Narendra Patil says, new committee has enrolled 23 Members on 3rd February 2013 in pattern category. School has classes up to 10 standard and new trustees have taken corrective measures. Change report by Chitrabhanu was rejected and enrollment effect through him could not be legally held to be of legal Members.
11. During the course of rival submissions, this Court primarily enquired that in the event, the appeals succeed what should be the nature of time gap arrangement and particularly, when an application under section 50-A moved by Mr. Gagre and two others is pending before the competent authority.
12. Mr. Paranjape, learned counsel for few respondents left this aspect to the Court. Mr. Deshmukh says, no interference is required in the order of appointment. Mr. Hon gave names of four persons to act as Member of Ad-hoc body till decision taken, while Mr. P.M. Shah also suggested four names from the group of intervenors.
13. The Jt.C.C., Nashik was expected while sitting in the proceedings under section 47 of Bombay Public Trust Act, 1950 to take care to safeguard interest of the trust as such. Without assessment and availability of evidence, the Jt.C.C. was not expected to merely act on dotted lines of Application No. 9/2011 moved by Arun Mahale and his group. He was expected atleast to browse the contents of the application and names of such contenders. Arun and his wife were two applicants, Sandeep is his brother, Ujwala is his sister-in-law, while Dnyaneshwar Ramesh Mahale is also in his relations. The learned Jt.C.C. was expected to know what was the interest evolved to these persons when they reside away from Chimthane. They were not students of the school, nor they had, any time in past, visited the said place. Arun himself claiming to be a social worker by itself would not qualify him for the post of trustee of educational trust. No enquiry as contemplated under the provisions is taken care, they are not even ordinary members of the trust, still few of them were appointed as trustees.
16. The learned Jt.C.C. did not advert to any finding as to what made him to accept claims of the respective applicants from Application Nos. 9/2011 and 11/2011. At one stage, the Jt.C.C. has recorded that the intervenors have no locus with activities of trust. He has gone to the stage of recording that the intervenors have not deposited costs inspite of opportunity given to them. These observations of the learned Jt. C.C. calls for interference.
17. There is no contest that Raghunathsingh was the President of trust, expired on 19.11.1998 and change report was produced before Assistant C.C. in Enquiry No. 15/1991. Same was rejected by order dated 3.7.2002. Rejection of such change report of Chatrabhanusing will not dilute enrollment of the membership to the trust as the persons, who had paid contribution, were competent to be nominated and appointed as ordinary members in terms of clause (4) of Memorandum of Association of Trust.
"34. Moreover, merely the president alone is not empower to enroll new members. It is essential to fulfill the criteria of becoming a member as laid down by Honorable High Court in the case of "Krishna Kanhyayalal and others.. Appellants VS. Jivraj ... and others.. Respondents. Reported in 2010 (2), Mh.L.J. Page 31. No such criteria is complied with while making ecrollment of interveners as members of the trust. On the contrary, it is already made it clear in the foregoing paras tha the managing committee recorded in Schedule-I of the trust in the year 1991 change of which was rejected by the Ld. Jt.C.C., M.S. Mumbai in Appeal No. 79 of 1991 vide order dated 08-01-1992 is nothing but illegal and invalid managing committee. It being a De-facto managing committee or it, being a care taker body is having no power to take policy decision such as, enrollment of new members. For want of legal power and authority to enroll new members the De-facto Managing committee cannot enroll new members, if enrolled such members cannot cannot be held as legal members."
19. In para 38, the Jt.C.C. asserted that Application No. 9/2011 was made on 23.6.2011 prior to the Application No. 11/2011 and it was even prior to the application for framing scheme under section 50-A of the Act before the Assistant Charity Commissioner and they have the interest in progress of the trust. However, to repeat, this will not be a parameter for the Jt.C.C. to decide the entitlement respondents as trustees.
20. Section 47 (2) contemplate a hearing to be given to the parties and making such enquiry as the Jt.C.C. may deem fit, then he may appoint any person as trustee. Sub-clause (3) of section 47 contemplate precautionary measures to be taken for such exercise. Clause (a) deals with wishes of the authors of that trust; clause (b) speaks of wishes of the persons, if any, empowered to appoint new trust; clause (c) contemplate to the question, whether appointment will promote or impede the execution of the trust; clause (d), to the interest of the public or section of public, who have interest in the trust; clause (e), to the custom and usage of the trust.
21. The Jt.C.C. did not advert and ponder upon as to what made him to ensure that appointment of new trustees was to promote execution of the trust or that, it was in the interest of the public or section of public, who have interest in the trust. The persons to whom he has nominated as trustees, brazenly indicate that the they are resident of Dhule, away from Chimthane and they have no social linkage to the trust or any sentimental attachment or any past activity to promote the trust. Merely branding by Arun to be a social worker would not qualify him to gag rights of others in militant manner.
22. There was apparently improper acceptance of nomination from Application Nos. 9/2011 and 11/2011 by the learned Jt.C.C. The group of those persons cannot be expected to control local institutions for political mileage.
23. Since the upliftment of the trust and its well being was paramount factor, there should not be harbinger of generosity by showing such annoinment to selected persons from the group of Application Nos. 9/11 and 11/2011.
24. Law requires, for every such action, which is judicial in its character, reasons are emergent. Reasons are live link between the set up of the authority and the factual matrix. In the absence of adequate reasons for particular action, such appointment or order becomes farce and operate detrimental to the interest of the trust and the persons, who are interested in upkpeeing of the trust. Recording of reasons is a part of fair procedure. Indeed, record substitute subjectivity with objectivity and if, a person has to challenge such reasons, he has opportunity to deal with the same.
25. The Jt.C.C., basically did not bother to associate himself in tune with compliance of section 47. He did not make requisite enquiry, nor heard the parties. It was alleged Shri. Sandeep Dattatraya Mahale resides at Dhule and a Municipal Corporator, he has no direct or indirect association with trust. This has been ignored from consideration. He wrongly interpreted intervention application, to be not maintainable and then went on appointing two members from the said group as a forensic bonanza. He did not assign any reasons for appointment, even as President or Vice President or Secretary or Executive Members. (Respective respondents in the appeal).
26. Taking stock of events, the order under challenge brazenly demonstrate no efforts whatsoever were made by the learned Jt.C.C. to identify suitable persons for appointment as trustees to avoid a frozen situation and stale-mate.
27. However, inspite of my such findings, the activities of the trust should not be made to vandalism and remained to face hollow situation, sending message of wanton. Consequently, till the application under section 50-A (1) of Bombay Public Trust Act is properly decided by the competent authority, I propose to nominate ad-hoc body from the existing group of persons. Hence, the order.
(I) The order of appointment of trustees dated 23rd August 2012 is set aside. However, by way of ad-hoc appointment till decision of proceedings under section 50-A of Bombay Public Trust Act, following persons to act for management of trusts.
(i) Shri. Arun Dattatraya Mahale - President, (ii) Shri. Ramrao Shankarrao Gagre - Vice President, (iii) Shri. Yuvraj Mahadu Chaudhari - Secretary, (iv) Shri. Rajendra Gulzarsing Girase, (v) Shri. Vajrabhanu Raghunath Girase, (vi) Shri. Dilip Deoraj Jain, (vii) Shri. Ananda Madhavrao Gagare, (viii) Shri. Pankaj Yashwant Chaudhari, (ix) Sau. Nirmala Deelip Dhangar (x) Shri. Prashant Subhash Kolapkar, (xi) Sau. Ratna Subhash Chaudhari, as trustees in the form of ad-hoc body. Shri. Ramrao Shankarrao Garge remains a trustee.
(II) They shall not take major decision to disturb the framework of trust or shall not modify or remove the existing staff pattern of the trust, particularly the school. Operation of bank accounts shall remain as was prevalent till passing the order dated 23rd August, 2012.
(III) In peculiar situation, it is expected of the Assistant Charity Commissioner, Dhule to decide the pending application under section 50-A of Bombay Public Trust Act within a duration of six months, without unreasonably accommodating the parties.
(IV) No costs.
(V) Civil Applications disposed of.
(VI) At the request of Mr. S.B. Yawalkar and Mr. M.S. Deshmukh, the order is stayed up to 10th March 2014.