FIRST APPEAL NO.177 OF 2019

26th February 2019

Petitioner Counsel: Shri RR Mantri Shri S.N. Patne
Respondent Counsel: Shri V.D. Gunale Shri B.L. SagarKillarikar Shri A.M. Sabnis
Act Name: Maharashtra Public Trusts Act, 1950 Code of Civil Procedure, 1908

HeadLine : 1) Maharashtra Public Trusts Act (1950), Ss. 41-D, 41-E – Once while passing interim order Joint Charity Commissioner has recorded finding that applicants are persons having interest in affairs of trust being beneficiaries of trust it cannot take contrary view while passing final order.

2) Civil P. C. (1908), S. 11 – Maharashtra Public Trusts Act (1950), Ss. 41-A, 41-D, 41-E – Provisions u/S. 11 would apply all orders passed under Act of 1950 except order passed u/S. 41-A.

Section :
Section 41­E Maharashtra Public Trusts Act, 1950 Section 41­D Maharashtra Public Trusts Act, 1950 Section 11 Code of Civil Procedure, 1908

Cases Cited :
Para 3: Barkat Ali and Anr. Vs. Badri Narain (D) by Lrs., 2008 AIR (SC) 1272
Para 3: Satyadhan Ghoshal Vs. Deorajin Debi, 1960 AIR (SC) 941
Para 10: Arjun Singh v. Mohindra Kumar and Ors., AIR 1964 SC 993
Para 10: Satyadhyan Ghosal and Ors. Vs. Smt. Deorajin Debi and Anr., AIR 1960 SC 941

JUDGEMENT

1. Since both these appeals are arising out of the common order passed on 17th October, 2018 by Joint Charity Commissioner, Latur Region, Latur, I have heard the common arguments in both these appeals and I deem it appropriate to decide these appeals by a common reasoning.

2. The material on record reveals that two applications were filed, one under the provision of Section 41­D and another under Section 41­E of The Maharashtra Public Trusts Act (hereinafter referred to as the said Act) against the present respondents. The material on record further reveals that in both these applications, the appellants in both these appeals filed the applications seeking intervention in the said applications. The material on record further reveals that the then Joint Charity Commissioner, vide order passed on 2nd June, 2018, allowed the intervention of the present appellants, holding them to be the persons interested in the affairs of the Trust being the beneficiaries. The material on record further reveals that during the course of hearing of these applications, certain documents came to be placed on record and ultimately the impugned order came to be passed on 17th October, 2018. Perusal of the impugned order reveals that the learned Joint Charity Commissioner has ultimately recorded a finding that the appellants in both the appeals cannot be held to be the persons having interest in the affairs of the subject trust and that is the reason that the application has been finally rejected by the Joint Charity Commissioner. Aggrieved by, the present appeals are filed.

3. Shri Mantri, learned counsel appearing for the appellants, relying on two judgments of the Hon'ble Apex court, first in the case of Barkat Ali and Anr. Vs. Badri Narain (D) by Lrs. ­ 2008 AIR (SC) 1272 and another in the case of Satyadhan Ghoshal Vs. Deorajin Debi – 1960 AIR (SC) 941, submitted that once the Joint Charity Commissioner has recorded a finding holding the present appellants to be the persons having interest in the Trust affairs being the beneficiaries of the trust, he was estopped from recording any contrary finding. The learned counsel submitted that on this count alone, the impugned order deserves to be quashed and set aside. The learned counsel further submitted that the Joint Charity Commissioner has, in fact, rejected the applications filed by the original petitioners. The learned counsel further pointed out that, however, suo motu inquiry has also been initiated against the present respondents and the same is going on. The learned counsel submitted that in the circumstances, the order passed by the Joint Charity Commissioner shall be set aside and the present applications be tagged with the suo motu inquiry being conducted against the present respondents and an opportunity be given to the present appellants to participate in the said inquiry.

4. Shri Gunale, learned counsel appearing for Respondent No.1, submitted that the principles of res judicata would not apply to the proceedings under the said Act and more particularly in relation to the orders passed by the Joint Charity Commissioner. The learned counsel further submitted that even otherwise, the present appellants no way can be held to be the persons having no interest in the affairs of the trust. The learned counsel referred to the definitions under the said Act and submitted that in view of the definitions as are provided in the Act, the present appellants are rightly held to be the persons interested in the affairs of the trust. The learned counsel, in the circumstances, submitted for rejecting the appeals and to confirm the order passed by the Joint Charity Commissioner.

5. Shri Sabnis, learned counsel appearing for Respondent Nos.14 to 18, in addition to the submissions made by Shri Gunale, submitted that the very object behind incorporating the provisions under Sections 41­D and 41­E of the Act, are required to be taken into account. The learned counsel read out the said provisions and submitted that considering the said provisions, there was no reason for the Joint Charity Commissioner to allow the present appellants to participate in the inquiry and in the circumstances, the learned Joint Charity Commissioner has rightly rejected their applications. The learned counsel further submitted that the orders, which are impugned in the present appeals cannot be held to the judicial orders so as to make the provision under Section 11 of the Code of Civil Procedure applicable the said order. On this count, the learned counsel submitted for dismissal of the appeals.

6. Shri Sagar­Killarikar, learned counsel appearing for Respondent No.2, supported the arguments advanced on behalf of the appellants and submitted for setting aside the impugned order.

7. I have given due considerations to the submissions made by the learned counsel appearing for the respective parties. I have perused the impugned judgment and the other material on placed on record. I deem it appropriate to reproduce herein below paragraphs 5 and 6 of the order passed by the learned Joint Charity Commissioner on 2nd June, 2018. The said paragraphs were read out by learned counsel Shri Sagar Killarikar to point out that the Joint Charity Commissioner, in many words, has held the present appellants to be the persons interested in the affairs of the trust being the beneficiaries. The paras 5 and 6 of the said order, read as under, ­
“5 egkjk"Vª lkoZtfud fo'oLr O;oLFkk vf/kfu;e] 1950 e/; s ykHkkFkhZph O;k[;k [kkyhyizek.ks fo'kn dj.;kr vkyh vkgs& ^^ ykHkkFkhZ ;kpk vFkZ ;k vf/kfu;ekuqlkj dsy sY;k fo'oLFkO;oLFkk foys[kke/; s fdaok ;kstuse/; s vkf.k fo'oLFkO;oLFksP;k ?kVuse/; s fo'kn dsy sY;k fo'oLFkO;oLFksP;k mn~nh"Vkuqlkj dks.krsgh ykHk ?ks.;kl gDdnkj vlysyh dks.krhgh O;Drh vlk vkgs vkf.k R;ke/; s brj O;Drhapk lekos'k gks.kkj ukgh-^^ izLrqr izdj.kkrhy =;LFk i{kdkj gs U;kl pkyfor vlysY;k 'kkGse/; s f'k{k.k ?ksr gksr s o R;kaph eqy s o brj dqVq afc; lnj U;klkP;k 'kkGse/; s f'k{k.k ?ksowu R;kpk YkkHk ?ksr vlY;keqGs lnj O;k[; suqlkj izLrqr =;LFk O;Drh U;klkps ykHkkFkhZ ;k ukR;kus fgr laca/kh O;Drh Bjrkr vkf.k R;keqGs R;kauk izLrqr izdj.kke/; s vtZnkj Eg.kwu lekfo"V dj.;klkBh eyk dks.krhgh vMp.k fnlwu ; sr ukgh- rlsp R;kl ewG vtZnkj o xSjvtZnkj ;kauh ns[khy ys[kh fojks/k n'kZfoysyk ukgh6- izLrqr izdj.kkpk vafrer% U;k;fu.kZ; dj.;kdfjrk ;k U;klk'kh laca/khr o loZ fo'oLrkaP;k d`r;kckcrpk l[kksy iqjkok ;k izkf/kdj.kklek sj ; s.ks vko';d vkgs- U;klkp s fgr laca/kh ;k ukR;kus izLrqr =;LFk i{kdkjkauk ;k izdj.kke/; s vtZnkj Eg.kwu lekfo"V dsY;kl vtZnkj vFkok xSjvtZnkj ;kap s dks.krsgh uqdlku gks.kkj ulwu myV izLrqr izdj.kke/; s U;k;nkukl enrp gks.kkj vkgs- rl sp R;kauk ;k izdj.kkr lekfo"V dsY;keqG s U;klkrhy xSjd`R;kaoj izdk'k Vkd.;kdfjrk lnj =;LFk i{kdkjkaph Hkwfedk egRokph B: 'kdrs- dks.krhgh ,[kknh =;LFk O;Drh tj U;kl fgrkdfjrk ;k izkf/kdj.kklek sj gtj jkg wu csdk;ns'khj d`R; s m?kM dj.;kpk iz;Ru djhr vlys rj r'kk O;Drhl la/kh ns.ks U;klkP;k fgrkdfjrk xjtsps vl wu R;keqGs lkoZtfud fgr lk/ky s tk.kkj vkg s- gs izkf/kdj.k =;LFk i{kdkjkP;k Hkwehdsuqlkj R;kauk vtZnkj fdaok xSjvtZnkj Eg.kwu izdj.kke/; s lekfo"V d# 'kdrs- R;keqG s izLrqr =;LFk i{kdkjkauk ;k izdj.kke/; s vtZnkj Eg.kwu lekfo"V dsY;kl mHk; i{kkauk dks.krhgh gkuh iksgk sp.kkj ulwu myVi{kh lnjps izdj.k xq.knks"kkoj vafrer% fudkyh dk<.;kl enr gks.kkj vkgsrl sp xSjvtZnkjkaP;k Eg.k.;kuqlkj izLrqr =;LFk i{kdkjkauk Lora= vtZ dj.;kph eqHkk vkgs- ijarq =;LFk i{kdkjkauh e wG vtZnkjkauh ekaMysY;k dslyk nqtksjk fnyk vlwu R;kauh ns[khy ;kp dkj.kkLro izLrqr izdj.kke/; s izos'k ekfxryk vlY;keqG s izdj.kkaph l a[;k ok
8. If the impugned order is perused, absolutely contrary findings are recorded by the Joint Charity Commissioner who has passed the impugned order. The question arises whether once the finding so recorded by the same authority in the earlier proceeding holding the appellants to be the persons interested in the affairs of the trust being the beneficiaries of the trust, was having any authority to take contrary view. Though it was sought to be contended that the orders are administrative orders and cannot be held to be the judicial orders and hence the provisions of the Code may not apply, the said argument is liable to be rejected at the threshold. It was rightly pointed by learned counsel Shri Mantri that, except the order passed under Section 41­A of the Act, all other orders are judicial orders, against which forums are provided to challenge the said orders on judicial side. All these orders are judicial orders passed by the said authority, in the circumstances, the provisions under Section 11 of the Act, could very well apply to both these matters.

9. Having regard to the provisions under the Trust Act and in view of the ratio laid down in the judgments, relied upon by Shri Mantri, the order passed by the learned Joint Charity Commissioner appeas unsustainable and deserves to be set aside.

10. The Hon'ble Apex court in the case of Barkat Ali (cited supra) in paras 8 to 10, has observed as under, ­
“8. The principles of res judicata not only apply in respect of separate proceedings but the general principles also apply at the subsequent stage of the same proceedings also and the same Court is precluded to go into that question again which has been decided or deemed to have been decided by it at an early stage.
9. In Arjun Singh v. Mohindra Kumar and Ors. (AIR 1964 SC 993) it was observed as follows:
"Scope of principle of res judicata is not confined to what is contained in Section 11 but is of more general application. Again, res judicata could be as much applicable to different stages of the same suit as to findings on issues in different suits..Where the principles of res judicata is invoked in the case of the different stages of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjectival law provides, the decision being reached, as well as the specific provisions made on matters touching such decision are some of the material and the relevant factors to be considered before the principle is held applicable."
10. In Satyadhyan Ghosal and Ors. v. Smt. Deorajin Debi and Anr. (AIR 1960 SC 941) it was observed as follows:
"The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the Trial Court or a Higher Court having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings."

11. The observations as are made would squarely apply to the facts of the present case. The authority which passed the interim order, cannot take a contrary view while passing the final order, as has been held by the Hon'ble Apex court. In the circumstances, both the appeals deserve to be allowed and are accordingly allowed. The Joint Charity Commissioner shall permit the appellants in both the appeals to participate in the suo motu inquiry initiated against the respondents under Section 41­D and 41­E of the Act. The appeals stand allowed in the aforesaid terms.

12. Since I have set aside the order passed by the learned Joint Charity Commissioner, obviously, the original applications so filed are required to be restored to their original position and they need to be tagged with the suo­motu inquiry proceedings initiated by the learned Joint Charity Commissioner.

13. At this stage, learned counsel Shri Sabnis, appearing for Respondent Nos.14 to 18, submits that these respondents intend to challenge the order passed by this Court today before the Hon'ble Apex court. The learned counsel, in the circumstances, prayed for stay to the effect and operation of the order passed by this court today for six weeks.

14. Respondent Nos.14 to 18 are the institutions. I failed to understand as to what may be the interest for these institutions to challenge the present order. In the circumstances, I do not see any reason for staying the effect and operation of the present order at the instance of Respondent Nos.14 to 18. The request is rejected.

15. A similar request is made by Shri Gunale, who is appearing for Respondent No.1, stating that Respondent No.1 intends to challenge the present order before the Hon'ble Apex court and prays for staying the effect and operation of the present order for a period of six weeks. The request is accepted.

Decision : Appeal allowed.