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2013 DIGILAW 1468 (BOM)

Damu Dagdu Patil v. Dilipsingh Pratapsingh Patil

2013-07-31

A.B.CHAUDHARI

body2013
Judgment : Heard. Admit. Taken up for final disposal with the consent of the counsel for rival parties. 2. These second appeals have been filed by most of the newly enrolled members of both the rival sides and one of them is old member out of 80. The following substantial question of law is framed. Substantial Question Whether the new or old members of the trust enrolled by both the group i. e. group led by Deelipsing Patil and group led by Shakil Musa Patel were necessary parties before the District Court in the proceedings U/Sec. 72(1) of the Trust Act and whether they are aggrieved persons? Answer No. 3. Mr. P. M. Shah, the learned senior advocate with Mr. S. P. Shah, the learned counsel for the appellant, Mr. R. R. Mantri, Mr. V. D. Salunke, Mr. Sidhartha Yawalkar, Mr. S. P. Brahme, the learned advocates appearing for appellants in these appeals made the following submissions. A. That, the appellants represented by them in these second appeals are amongst the newly enrolled members from the list of members by the group led by Shakil Musa Patel and Deelipsing Patil over and above original 80 members and their membership was found to be valid by the Jt. C. C. in his order dated 07.05.2003 against which the District Court allowed M. C. A. No. 119/2003 and reversed the said order dated 07.05.2003. According to the learned counsel for appellants, none of these newly added members or the old members of the Trust were added as party to the miscellaneous application U/Sec. 72(1) of the Trust Act before the District Court and, therefore, they being necessary party, the impugned judgment recorded by the District Court is in violation of principles of natural justice, since they were not heard. Since the membership of newly enrolled members is taken away for the first time under the judgment and order dated 24.01.2013 made by District Court, they are the aggrieved persons. B. Since none of them were arrayed as party to applications U/Sec. 72(1) of the Trust Act, and were the aggrieved persons, the miscellaneous civil applications are required to be remanded to the District Court for adding them as party to the proceedings and for fresh hearing. B. Since none of them were arrayed as party to applications U/Sec. 72(1) of the Trust Act, and were the aggrieved persons, the miscellaneous civil applications are required to be remanded to the District Court for adding them as party to the proceedings and for fresh hearing. C. These newly enrolled members had been on the list right after the order dated 07.05.2003 and have also participated in the elections held in the year 2003 and 2008 and, therefore, their membership had become operational. Some of the members out of old and new were also elected as trustees of the trust. D. These appellants are the aggrieved persons in law and have right to file instant second appeals against the impugned judgment recorded by the District Court U/Sec. 72(1) of the Trust Act. Mr. Shah, the learned senior advocate relied on the decision in a case of Union Carbide Corporation, etc. Vs. Union of India, etc. reported in AIR 1992 SC 248 . E. Mr. Mantri, Mr. Salunke, Mr. Yawalkar and Mr. Brahme also advanced their submission partly on merits assailing the judgment recorded by the District Court, so also Mr. P. M. Shah, the learned senior advocate. According to all the learned counsel, perusal of the judgment of the District Court shows a cursory approach by even recording wrong statement of facts in the judgment in as much as the new members were never enrolled after formation of committee of fit persons on 28.03.2002, but were enrolled in the year 2000 itself. But in the impugned judgment, the District Court has stated that they were enrolled by the adhoc committee of fit persons after its appointment. The learned counsel, therefore, went on to argue that the error committed by the District Judge goes to the root of the matter and hence remand order is necessary. Mr. Shah, the learned senior advocate also referred to the decision of the Supreme Court in a case of H. Siddiqui (Dead) by L.Rs. Vs. A. Ramalingam reported in (2011) 4 SCC 240 (para 11). 4. Mr. R. N. Dhorde, the learned senior advocate with Mr. Mr. Shah, the learned senior advocate also referred to the decision of the Supreme Court in a case of H. Siddiqui (Dead) by L.Rs. Vs. A. Ramalingam reported in (2011) 4 SCC 240 (para 11). 4. Mr. R. N. Dhorde, the learned senior advocate with Mr. V. R. Dhorde, the learned counsel appearing for the group led by Shakil Musa Patel submitted that M. C. A. No. 119/2003 entertained by the District Court against order dated 07.05.2003 U/Sec. 41A of the Trust Act was completely without jurisdiction in as much as no application U/Sec. 72(1) of the Trust Act is provided against an order U/Sec. 41A of the Trust Act. It was the duty of the District Court to first find out whether it had such jurisdiction, but it acted without jurisdiction. According to him, thus the impugned judgment is nullity in the light of principle that a judgment and order without jurisdiction must be held to be nullity. The other counsel also reiterated the said argument before me. 5. This Court asked the counsel for the appellants as to why then such an objection was not raised before the District Court and the learned counsel including Mr. Dhorde, the learned senior advocate argued that the issue being one of the jurisdiction goes to the root of the matter and even if the same was not raised, the judgment will have to be declared as nullity. The learned counsel relied on the decision in a case of Chiranjilal Shrilal Goenka (Deceased) Vs. Jasjit Singh and others reported in (1993) 2 SCC 507 (para 17) and in a case of Boodireddy Chandraiah and others Vs. Arigela Laxmi and another reported in AIR 2008 SC 380 (para 11). 6. Per contra, Mr. V. J. Dixit, the learned senior advocate with Mr. L. V. Sangeet, the learned counsel for respondents opposed the appeals and applications and argued that the concerned contesting parties to the dispute were the parties before the District Court and the two groups one led by Deelipsing Patil and another led by Shakil Musa Patel represented the new as well as old members before the District Court. It is not only inpracticable, but also not necessary in law to have 400 and odd members from each side in total about 850 in the array of parties before the District Court. It is not only inpracticable, but also not necessary in law to have 400 and odd members from each side in total about 850 in the array of parties before the District Court. All these members were represented by their respective leaders or the trustees and, therefore, there was no question of making old and new members as party to the application U/Sec. 72(1) of the Trust Act before the District Court. He, therefore, submitted that the prayer for remand of the proceedings before the District Court would only be counter productive and does not serve any purpose, nor the same is legally sustainable. He, therefore, prayed for dismissal of these second appeals and applications. CONSIDERATION : 7. I have heard the learned counsel for rival parties in these second appeals and civil applications. The submissions made by the counsel about the jurisdiction issue has been dealt with by me while deciding Second Appeal No. 225/2013. I have pondered over the matter for quite some time. It is a common knowledge that, a public trust has a board of trustees to represent the entire general body of the trust. That apart, a trust, trustees or its manager to the knowledge of the public at large represent the general body members of the trust. If it were to be held that all the general body members of the trust old or new should be made parties to the litigation in relation to the trust and in this case about 850 members there would be a chaotic situation. There is another reason why all the general body members are not required to be made party before the Courts of law. It is necessary to refer to some of the provisions of the Trust Act. Sec. 2(8) of the Trust Act defines the manager which reads thus: THE BOMBAY PUBLIC TRUST ACT 2. Definitions : (1) .... There is another reason why all the general body members are not required to be made party before the Courts of law. It is necessary to refer to some of the provisions of the Trust Act. Sec. 2(8) of the Trust Act defines the manager which reads thus: THE BOMBAY PUBLIC TRUST ACT 2. Definitions : (1) .... (8) “Manager” means any person (other than a trustee) who for the time being either alone or in association with some other person or persons administers the trust property of any public trust and includes – (a) in the case of a math, the head of such math, (b) in the case of a wakf, a mutawalli of such wakf, (c) in the case of the society registered under the Societies Registration Act, 1860, its governing body, [whether or not the property of the society is vested in a trustee]; Sec. 2(18) of the Trust Act defines trustees which reads thus : (18) "trustee" means a person in whom either alone or in association with other persons, the trust property is vested and includes a manager; 8. From the reading of these definitions, it is clear to me that it is the manager or trustees, who represent the trust and its properties, and the association of persons and the trust property is vested in the trustees and not in the general body members. This is further supported by Rule 5 of the Bombay Public Trust Rules, 1961 which reads thus : THE BOMBAY PUBLIC TRUST RULES 1951 5. Maintenance of a Register of Public Trusts. In every Public Trusts Registration Office or Joint Public Trusts Registration Office there shall be maintained a Regi ster of Public Trusts in the form of Schedule I hereto in respect of public trusts registered or deemed to be registered under the Act: Provided that the Charity Commissioner may, in the case of any Public Trusts Registration Office or Joint Public Trusts Registration Office, direct the maintenance of such a register separately for different classes of public trusts or areas within the region or subdivision. 9. There is reference to Schedule – I in Rule 5. 9. There is reference to Schedule – I in Rule 5. Schedule – I is a register of public trust which is accessible to the public at large in the office of A. C. C. It provides for the information namely: name of the trust, names of trustees and managers with their addresses, mode of succession of trusteeship and managership. Perusal of Schedule – I, does not anywhere show any mention about the members of the trust. In the light of the above, provisions, in my opinion, the right claimed in old and new members of the trust to be a party before the District Court as contended before me cannot be countenanced in law. They are also not the aggrieved persons as claimed by them. As earlier stated all the rival trustees were party to the applications before the District Court. The new enrolled or old general body members were represented by them. I, therefore, reject the submissions made by the learned counsel for appellants that all old and new members were necessary parties to the proceedings before the District Court U/Sec. 72(1) of the Trust Act. 10. The submission about violation of principles of natural justice, therefore, is clearly taken care of with the above line of reasoning. I, therefore, hold that none of the appellants can be said to be aggrieved persons, nor they were the necessary parties to the proceedings before the District Court. I answer the substantial question of law framed by me in the negative. These second appeals with civil applications for leave to file second appeals are thus dismissed with no order as to costs.