Sunday, 9 February 2020

Whether it is mandatory for charity commissioner to hear public trust prior to grant of consent for filing suit against trust?

 Apart from the mandate of the provisions of Section 51 of the Act of 1950 and the proviso below Sub-Rule (3) of Rule 27 of the Rules of 1951, the elementary principle of audi alteram partem also casts an obligation on the Authority under the Act of 1950 to hear the party against whom civil action is proposed. If the submission made on behalf of respondent Nos. 1 and 2, that notice to the proposed defendant and opportunity of hearing to the proposed defendant is not contemplated by the provisions of Section 51 of the Act of 1950 and proviso below Sub-Rule (3) of Rule 27 of the Rules of 1951 is accepted, it would amount to misreading the provisions and causing infraction of right of the affected party guaranteed by principles of natural justice.

8. In the facts of the case, I find that the consent granted by the Assistant Charity Commissioner under Section 51 of the Act of 1950 to respondent Nos. 1 and 2 to file civil suit against the petitioner-Society, without giving notice and without granting hearing to the petitioner-Society, is illegal and unsustainable in law.

9. Learned Advocate for respondent Nos. 1 and 2 submitted that after grant of consent, civil suit is filed and the petitioner-Society has submitted to the jurisdiction of the civil Court and participated in the proceedings and at this stage, hearing on application for temporary injunction is going on. In my view, the filing of civil suit will not legalize the illegality committed by the Assistant Charity Commissioner while granting sanction for filing of the civil suit. The civil suit filed against petitioner-Society could not have been filed without sanction by the Assistant Charity Commissioner. Thus, legal sanction for filing the civil suit is sine qua non and if the foundation i.e. sanction itself goes, the civil suit also has to go.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 1269/2019

Decided On: 03.07.2019

 Shri Shivaji Shikshan Sanstha Vs.  Rajiv and Ors.

Hon'ble Judges/Coram:
Z.A. Haq, J.

Citation: 2020(1) MHLJ 345


1. Heard Shri P.K. Mohta, Advocate for the petitioner, Shri C.S. Dhabe, Advocate with Shri V.A. Dhabe, Advocate for respondent Nos. 1 and 2 and Shri N.R. Patil, A.G.P. for respondent No. 3.

2. Rule. Rule made returnable forthwith.

3. By the present petition, the petitioner has challenged the order passed by the Assistant Charity Commissioner, by which the application filed by the respondent Nos. 1 and 2 under the Maharashtra Public Trusts Act, 1950 (for short "the Act of 1950") is allowed and respondent Nos. 1 and 2 are granted permission to file civil suit against the petitioner-Society. The impugned order is challenged mainly on the ground that it is passed without giving notice to the petitioner-Society and without hearing the petitioner-Society. Relying on the proviso below Sub-Rule (3) of Rule 27 of the Maharashtra Public Trusts Rules, 1951 (for short "the Rules of 1951"), it is argued by learned Advocate for the petitioner that consent to file civil suit as per Section 51 of the Act of 1950 cannot be granted unless trustees of the public trust against which the civil suit is proposed to be filed are given an opportunity of hearing.

4. Learned Advocate for respondent Nos. 1 and 2 argued that there is nothing either in Section 51 of the Act of 1950 or in Rule 27 of the Rules of 1951 which casts an obligation on the applicant to implead the proposed defendants as non-applicants in the application filed before the Charity Commissioner under Section 51 of the Act of 1950. Referring to Clause (f) of Sub-Rule (1) of Rule 27 of the Rules of 1951 it is argued that names and addresses of the trustees and Management of the Public Trust of which the applicants are members were required to be given and this provision has been complied by respondent Nos. 1 and 2 and the names of trustees of Maharashtra Shivaji Shikshan Sanstha, Sihora were given in the application filed before the Assistant Charity Commissioner under Section 51 of the Act of 1950.

Shri P.K. Mohta, learned Advocate for the petitioner has pointed out concluding portion of paragraph No. 17 of the application which was filed by respondent Nos. 1 and 2 before the Assistant Charity Commissioner where it is stated that in the proposed civil suit, the contesting defendant would be Shivaji Shikshan Sanstha, Amravati. At page 44 of the paper book of petition, copy of plaint of Special Civil Suit No. 111/2018, which is filed by respondent Nos. 1 and 2 after seeking permission under Section 51 of the Act of 1950, is placed on record. In this civil suit, Shri Shivaji Shikshan Sanstha i.e. present petitioner is shown as defendant No. 4. Shri Maharashtra Shivaji Shikshan Sanstha, Sihora is not shown as defendant in the civil suit. In these facts, I find that the submission made on behalf of respondent Nos. 1 and 2 that Shri Shivaji Shikshan Sanstha, Amravati i.e. present petitioner was not required to be impleaded as non-applicant in the application filed under Section 51 of the Act of 1950, is misleading.

5. Relying on the judgment given by this Court in the case of Bai W/o Mohamed Mulla and others V/s. Charity Commissioner, Bombay and others reported in MANU/MH/0107/1999 : 1999(2) Mh.L.J. 26, Advocate for respondent Nos. 1 and 2 argued that the enquiry under Section 51 of the Act of 1950 is not a judicial enquiry. In the present matter I am not required to deal with the issue as to whether the enquiry under Section 51 of the Act of 1950 is judicial enquiry or not. Hence, the judgment relied upon by Advocate for respondent Nos. 1 and 2 is not relevant.

6. Learned Advocate for the petitioner submitted that Section 51(1) of the Act of 1950 lays down that before passing any order the Charity Commissioner should hear the "parties" which means the persons, who filed application under Section 51 of the Act of 1950 and the trust/persons against whom civil suit is proposed to be filed. Advocate for petitioners pointed out that as per proviso below Sub-Rule (3) of Rule 27 of the Rules of 1951 also, the Charity Commissioner has to hear the trustees before he grants consent under Section 51 of the Act of 1950 to file civil suit. Obviously, the term "trustees" referred in proviso below Sub-Rule (3) of Rule 27 of the Rules of 1951 refers to the public trust which is the proposed defendant in the civil suit proposed to be filed. By no stretch it can be said that the term "trustees" in the proviso below Sub-Rule (3) of Rule 27 of the Rules of 1951 refers to the trustees of the public trust on whose behalf application under Section 51 of the Act of 1950 is filed.

7. Apart from the mandate of the provisions of Section 51 of the Act of 1950 and the proviso below Sub-Rule (3) of Rule 27 of the Rules of 1951, the elementary principle of audi alteram partem also casts an obligation on the Authority under the Act of 1950 to hear the party against whom civil action is proposed. If the submission made on behalf of respondent Nos. 1 and 2, that notice to the proposed defendant and opportunity of hearing to the proposed defendant is not contemplated by the provisions of Section 51 of the Act of 1950 and proviso below Sub-Rule (3) of Rule 27 of the Rules of 1951 is accepted, it would amount to misreading the provisions and causing infraction of right of the affected party guaranteed by principles of natural justice.

8. In the facts of the case, I find that the consent granted by the Assistant Charity Commissioner under Section 51 of the Act of 1950 to respondent Nos. 1 and 2 to file civil suit against the petitioner-Society, without giving notice and without granting hearing to the petitioner-Society, is illegal and unsustainable in law.

9. Learned Advocate for respondent Nos. 1 and 2 submitted that after grant of consent, civil suit is filed and the petitioner-Society has submitted to the jurisdiction of the civil Court and participated in the proceedings and at this stage, hearing on application for temporary injunction is going on. In my view, the filing of civil suit will not legalize the illegality committed by the Assistant Charity Commissioner while granting sanction for filing of the civil suit. The civil suit filed against petitioner-Society could not have been filed without sanction by the Assistant Charity Commissioner. Thus, legal sanction for filing the civil suit is sine qua non and if the foundation i.e. sanction itself goes, the civil suit also has to go.

Hence, the following order:

(i) The order passed by the Assistant Charity Commissioner on Application No. 1/2018 on 3rd July, 2018 is set aside.

(ii) The matter is remanded to the Assistant Charity Commissioner, Bhandara for deciding the application afresh.

(iii) Needless to say that the Assistant Charity Commissioner, Bhandara shall ensure that the petitioner-Society i.e. Shri Shivaji Shikshan Sanstha, Amravati is impleaded as non-applicant in the proceedings and it is granted opportunity to put forth its case.

(iv) Learned Civil Judge, Senior Division, Bhandara shall pass appropriate orders regarding maintainability of the suit considering the effect of this judgment on the tenability of the civil suit.

(v) The petitioner and the respondent Nos. 1 and 2 shall appear before the Assistant Charity Commissioner, Bhandara on 2nd August, 2019 at 11 a.m.

(vi) Rule is made absolute in the above terms.

In the circumstances, the parties to bear their own costs.


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