Whether assistant charity commissioner is the court for the purpose of the contempt of Courts Act?

The scheme of the Act, the powers conferred on the Assistant Charity Commissioner and the perusal of the aforesaid provisions of the Act clearly show that the Assistant Charity Commissioner has to be a judicial officer or an officer with a legal background; has to hear parties wherever dispute is raised with regard to existence of a public trust or with regard to a property being trust property or otherwise and then give a definitive judgment after taking evidence having regard to the facts of the case and by application of law. The judgment is final unless interfered with in appeal or thereafter tested in appeal before the High Court. The jurisdiction of the Civil Court has been barred in the matters inquired into and decided by the Assistant Charity Commissioner. {Para 16}

17. The aforesaid provisions make it clear that the Assistant Charity Commissioner has not only the trapping of a judicial tribunal but also has power to give a decision or a definitive judgment which as finality and authoritativeness which are essential tests of a judicial pronouncement. The Assistant Charity Commissioner, therefore, possesses all the attributes of a court. The fact that the Assistant Charity Commissioner has also to perform some administrative functions is not of any relevance for coming to the conclusion that he is not a court, having regard to the provisions of the Act which substantially confer on him the power to give a definite judgment subject to finality in appeal, after hearing all concerned. Functions of the Assistant Charity Commissioner are predominantly adjudicatory. The Assistant Charity Commissioner has almost all the powers which an ordinary Civil Court has including power of summoning witnesses, compelling production of documents, examining witnesses on oath and coming to a definite conclusion on the evidence induced and arguments submitted.

18. For the foregoing reasons, we hold that the Assistant Charity Commissioner is a Court for the purposes of Sections 2 and 3 of the Contempt of Courts Act, 1971.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1534 of 1995

Decided On: 04.03.2003

 K. Shamrao and Ors. Vs. Assistant Charity Commissioner

Hon'ble Judges/Coram:

Y.K. Sabharwal and H.K. Sema, JJ.

Author: Y.K. Sabharwal, J.

Citation: MANU/SC/0175/2003,(2003) 3 SCC 563

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Can the court permit the charitable trust to produce documents relating to charitable work for claiming exemption from property tax in temporary injunction application?

  Evidently, the exemption is provided for the

reason that the properties are being used for the very

object for the advancement of which the Corporation is

statutorily enjoined to make provisions. From this

standpoint, when a clear case for exemption under section

132(1)(b) is made out, the assessee cannot be non-suited

on the general premise that the Corporation cannot

function, if its revenue is blocked. In such a case, the

vary liability to pay the tax is itself in question. {Para 25}

26] I am mindful of the position that the exemptions

in the Taxing Statues are to be strictly interpreted.

However, distinction has been made in the matter of

interpretation of beneficial exemptions, which have been

provided as an encouragement or incentive for promotion

of certain activities. Such beneficial exemptions are to

be liberally interpreted.

28] In the case at hand, on facts, it appears that

the trial Court as well as the learned District Judge

have not adverted to the question as to whether the claim

of the petitioner is, prima facie, tenable. The

petitioner has placed on record a copy of trust

registration certificate. The petitioner has also placed

on record the copies of audited balance sheets. The

petitioner could have been directed to place on record

its constitution and/or bye-laws to ascertain the object

of the trust and whether the activity is carried out for

advancement of charitable causes exclusively. It would,

therefore, be appropriate to remit the matter back to the

trial Court to decide the application for temporary

injunction afresh in the light of the aforesaid

observations.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO. 8043 OF 2020

Abhinav Manav Vikas Sanstha  Vs The State of Maharashtra 

CORAM : N.J.JAMADAR,J.

PRONOUNCED ON : 30.04.2021

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Whether decision of civil court regarding title over suit property will prevail over decision of assistant charity commissioner?

Now the question arises what is the effect of finding given by Assistant Charity Commissioner in Inquiry No. 151/1997 dated 13.01.2006, holding that the suit property is the property of plaintiff Trust (Exh. 190). The questions arise whether after the decision of Assistant Charity Commissioner regarding nature of the suit property as Trust property, whether defendants can prove their title over the suit property or whether the plaintiff Trust will be held as title holder of the suit property.

12. The Full Bench of this Court had occasion to consider the effect of decision given by Charity Commissioner under inquiry under Section 19 (ii) read with Section 22A of the Trust Act in the case of "Keki Pestonji Jamadar and anr. Vs. Kohodadad Merwan Irani and others" reported in (MANU/MH/0125/1973 : 1972 Mh.L.J. 427). While considering the procedure prescribed by the Trust Act for the conduct of inquiry under Section 19, the Full Bench observed that,

"The procedure prescribed by the Act for the conduct of inquiries under Section 19 is wholly unsuited to a proper and effective adjudication of disputed titles to the trust property. Under Section 19 the Deputy or Assistant Charity Commissioner has to conduct an inquiry "in the prescribed manner". Rule 7 which deals with the manner of inquiries provides that the procedure prescribed for the trial of the suits under the Presidency Small Cause Courts Act, 1882 or the Provincial Small Cause Courts Act, 1887, as the case may be, would apply to the proceedings under Section 19. Under Section 19 (d) (e), (f) and (g) of the Presidency Small Cause Courts Act, 1882 and under Item 4 of the Second Schedule of the Provincial Small Cause Courts to decide questions of title to immovable property is expressly excluded and the procedure devised for trials under those Acts is consequently far too summary for a proper adjudication of such titles. The provision in Rule 7 that a party to an inquiry can appear through an agent and the power of the Tribunal to exclude lawyers from the inquiries reveal to some extent the narrow nature of the inquiry envisaged by Section 19.

Rule 11 provides that the officer holding the inquiry may only make a memorandum of the substance of what each witness deposes. It is unthinkable that questions of title could be permitted to be decided by a Tribunal finally and conclusively without any obligation to record the evidence fully. It is matter of common experience that subtle shades of evidence are often missed in a memorandum containing merely the substance of the evidence".

13. Full Bench of this Court considered Section 26 of the Trust Act under which any Court of competent jurisdiction deciding any question relating to any public trust, which by or under the provisions of Act it is not expressly or impliedly barred from deciding, has to send copy of such decision to the Charity Commissioner and Charity Commissioner has to cause entries in the register to be made or amended in accordance with such decision. This Court held that if a Civil Court upholds the title of third party to the property, which under Section 19 has been found to belong to the trust, the record of the Charity Commissioner has to be amended so as to accord with that decision. The decision of Civil Court will have priority over the decision recorded in the inquiry under Section 19 of the Trust Act. While explaining the above-said judgment of the Full Bench, the Division Bench of this Court, in the case of "Samastha Lad Vanjari Samaj, Ram Mandir Trust Vs. Waman Kisan Sanap and others" reported in (MANU/MH/0274/1975 : 1976 Mh.L.J. 806), has explained that the true owner is not affected by an inquiry under Section 19 of the Act because the question which has to be decided by the Authorities is a different question operating at different level. The decision of the Authority and decision of the Civil Court operates at different levels and different areas so that there is no conflict between the two.

14. Thus, in view of this legal position though the Assistant Charity Commissioner held that the suit property is the property of Trust, when adverse title is set up in the suit property by the defendants, by inheritance, as legal heirs of Kasturmal Agrawal, the original title holder, the decision of Civil Court regarding title over the suit property will prevail over the decision of Assistant Charity Commissioner. In accordance with the decision of Civil Court, necessary changes in the entries in public trust register will have to be made by Charity Commissioner under Section 26 of the Trust Act.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

First Appeal No. 2577 of 2013 and Civil Application No. 13119 of 2013

Decided On: 03.12.2018

 Shantidevi  Vs.  Seth Kasturmal Dalsukh Dharmashala and Ors.

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Whether presumption U/S 90 of Evidence Act is applicable to document like will?

On the point no. 3, regarding status of the suit property, as to whether it is trust property or not, arguments were vehemently submitted by Shri Vijay Dixit, Senior Counsel for the appellants, mainly on the ground that the plaintiff trust filed certified copy of the will, dated 13.7.1936, executed by Kasturmal Dalsukh Agrawal. Under this will, plaintiff trust was created and suit property was bequeathed in favour of the plaintiff trust. This will is registered on 19.10.1036. According to the learned Senior counsel for the appellant, learned Trial Court erroneously admitted this will and exhibited it invoking presumption under Section 90 of the Evidence Act. He submits that the will is a special document and it can be proved at least by examining one attesting witness to prove the compliance of Section 63 (c) of the Indian Succession Act, 1925 r/w Section 68 of the Evidence Act. He placed reliance on "Bharpur Singh and others vs. Shamsher Singh" [MANU/SC/8404/2008 : 2009 (3) SCC 687], wherein the Apex Court held that presumption regarding documents 30 years old is not applicable to will. The will must be proved in terms of Section 63 (c) of the Indian Succession Act, 1925. On the point of proof of will, he placed reliance on following authorities.

1] P. Laxman v/s. Thekkayil Padmini and others [2009 (3) Mh.L.J. 510]

2] Keshav Narayan Bharti vs. The State of Maharashtra and others [MANU/MH/1368/2006 : 2006 (3) BCJ 550]

3] M.B. Ramesh (D) by L.Rs. Vs. K.M. Veeraje Urs (D) by Lrs and Ors. [MANU/SC/0462/2013 : 2013 DGLS (SC) 375]

4] Smt. Jaswant Kaur vs. Smt. Amrit Kaur & Ors. [MANU/SC/0530/1976 : (1977) 1 SCC 369]

5] Sridevi & others vs. Jayaraja Shetty & ors. [MANU/SC/0065/2005 : (2005) 2 SCC 784]

6] Niranjan Umerschandra Joshi vs. Mrudula Jyotirao & ors. [MANU/SC/8788/2006 : (2006) 13 SCC 433]

7] B. Venkatamuni vs. C.J. Ayodhya Ram Singh and Ors. [MANU/SC/4692/2006 : (2006) 13 SCC 449]

8] Anil Kak vs. Kumari Sharada Raje & Ors. [MANU/SC/7520/2008 : (2008) 7 SCC 695]

In reply, learned counsel for respondent nos. 1 and 2, though fairly submitted that presumption under Section 90 of the Evidence Act is not applicable to the document like will.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

First Appeal No. 2577 of 2013 and Civil Application No. 13119 of 2013

Decided On: 03.12.2018

 Shantidevi  Vs.  Seth Kasturmal Dalsukh Dharmashala and Ors.

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Whether provisions of limitation Act is applicable to suit filed as per S 50 of Bombay public trust Act?

Learned counsel for the appellants submits that as per pleadings of plaintiffs, especially para 12, the cause of action to file this suit arose when plaintiffs filed Inquiry No. 151 of 1997 and after the death of Shri Laxminarayan Ramvilas Agrawal. Thus, the suit for declaration of title as well as for possession, filed on 29.10.2004 is barred by limitation. He submits that limitation for filing such suit for declaration is 3 years from the date of cause of action under Article 58 of the Limitation Act, and for possession, the limitation is 12 years under Article 65 of the Limitation Act. As such, suit is not within limitation. Learned counsel for the appellants placed reliance on "Keshav Narayan Bharti through L.Rs. And others vs. State of Maharashtra and others" [MANU/MH/1368/2006 : 2006 (3) BCJ. 550].

Learned counsel for respondent nos. 1 and 2 submits that this suit is filed under Section 50 of the Maharashtra Public Trust Act after obtaining required permission from the Charity Commissioner under Section 51 of the Trust Act. This being special forum under Local Act, the general provisions of the Limitation Act, 1963 are not applicable. He has drawn my attention to the judgment in the case of "Shri Dev Chavata of Tambulwadi vs. Ganesh Mahadeo Deshpande" [MANU/MH/0070/1970 : 1970 Mh.L.J. 736].

In the case at hand, admittedly plaintiff trust filed suit under Section 50 of the Trust Act after obtaining necessary permission from the Charity Commissioner under Section 51 of the Act. Thus, obviously, this is special forum under Local Act i.e. Maharashtra Public Trust Act.

This Court, in the same matter reported in "Seth Kasturmal Dalsukh Dharmashala Dhule and others vs. Shantidevi w/o Laxminarayan Agrawal and others" [MANU/MH/1616/2012 : 2013 (1) Mh.L.J. 695] held that the suit is not the one invoking general civil jurisdiction of the Court within the meaning of Section 9 of the Civil Procedure Code, but is filed before the District Court i.e. Court as contemplated under Section 2(4) r/w Section 50 of the Bombay Public Trust Act. This Court also held that under Section 50 (iv) of the B.P.T. Act a suit can be filed in the Court even for relief of declaration and injunction in favour or against a public trust. Section 50 also explicitly provides that a suit for possession can be filed in the Court. Sub-Clause (q) of Section 50 (iv) further empowers the Court to grant any other relief which would be a condition precedent or consequential to any of the relief provided in Section 50. For claiming relief of possession, a decision on question of ownership would be relevant. Unless the plaintiff proves his ownership or any other status as regards the property of which possession is sought, he would not be entitled for relief of possession. As such, relief of declaration as to the status of plaintiff qua the property would be condition precedent for grant of relief of possession.

This Court also held that the B.P.T. Act is special Local Act. Suit under Section 50 is a special remedy before special forum under the Act. The bar, as envisaged under Sections 79 and 80 of the B.P.T. Act, would not be attracted in view of the provisions of Sections 50 and 51 of the Trust Act.

So also, in Shri Dev Chavata of Tambulwadi vs. Ganesh Mahadeo Deshpande (supra), this Court observed that:

"5. In my judgment, there is nothing in the Bombay Public Trusts Act, 1950, which is a special local Act, which makes the provisions of the Indian Limitation Act, 1908, or of the Limitation Act of 1963 applicable to a suit under Section 50 of the Bombay Public Trusts Act The suit under Section 50 is a Special remedy before a special forum under the Act. The present suit haying been filed on July 21, 1955, the question which will have to be considered is as to whether the Indian Limitation Act, 1908, will apply to it Section 75 of the Bombay Public Trusts Act applies certain provisions of the Indian limitation Act only to the filing of appeals and applications. The Indian Limitation Act, which is the general law of the land relating to limitation, is applicable in the circumstances mentioned in Section 29 of that Act in the case of suits and proceedings under Special or Local Law. Now, Section 29(2) comes into operation when a Special or Local Law prescribes for any suit a period of limitation. See Vidyacharan Shukla v. Khubchand Baghel. And Shankar v. Chunilal. However, there is nothing in Section 50 or in any other provision of the Bombay Public Trusts Act. 1950, which prescribes any period of limitation for a suit under Section 50. The suit is to be instituted outside Greater Bombay before a special forum, viz., the District Court, as provided in the section read with Section 3(4). I am, therefore, of the opinion that the Limitation Act is not at all attracted to any suit under Section 50 of the Bombay Public Trusts Act. Section 52-A lays down that suit against even an assignee for valuable consideration is not barred by any length of time and hence It is clear that legislature could not have intended to apply the law of limitation to suits under Section 50. The learned District Judge was, therefore, wrong in applying presume ably Art 142 and in dismissing the suit."

Thus, this suit being filed under Section 50 of the Trust Act, which is special forum, the provisions of Limitation Act, 1963 are not applicable to this suit as under Section 50 of the Trust Act, no limitation is provided for filing such suit for declaration regarding trust property and for possession of the trust property. Therefore, I hold that the suit claim is well within limitation. The Trial Court has rightly held that the suit is not barred by limitation.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

First Appeal No. 2577 of 2013 and Civil Application No. 13119 of 2013

Decided On: 03.12.2018

 Shantidevi  Vs.  Seth Kasturmal Dalsukh Dharmashala and Ors.

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Whether bar of O 2 R 2 of CPC is applicable if previous suit was disposed off for want of jurisdiction?

Learned counsel for the appellants submits that original plaintiffs had filed Regular Civil Suit No. 26 of 1997 for perpetual injunction to restrain the present defendants from creating third party interest in the same suit property and in that suit, plaint was returned under Order 7 Rule 11 of the Civil Procedure Code, on the ground of lack of jurisdiction. That order was upheld upto High Court and reached finality. Therefore, the present suit filed on the same cause of action is barred under Order 2 Rule 2 of the Civil Procedure Code.

In reply, learned counsel for respondent nos. 1 and 2 submits that Regular Civil Suit No. 26 of 1997 was disposed of for want of jurisdiction to that Court by returning plaint. Therefore, there was no adjudication by the Court having jurisdiction to entertain that suit. In the circumstances, the bar under Order 2 Rule 2 of the Code of Civil Procedure is not attracted. He placed reliance on "Spring Fresh Drinks Pvt. Ltd. Vs. Gani Sons Charitable Trust" [MANU/MH/1009/2016 : 2016 (5) Mh.L.J. 400] and "P. Vijaykumar and Ors. Vs. V.C. Gopalkrishnan" [MANU/MH/0333/1997 : 1997 (2) Mh.L.J. 35].

I have gone through the copy of plaint of Regular Civil Suit No. 26 of 1997 filed on behalf of the plaintiff trust for perpetual injunction to restrain the present defendants from creating third party interest in the same suit property. From the record, it emerges that, Regular Civil Suit No. 26 of 1997 was converted into Regular Civil Suit No. 17 of 2003, as it was transferred from the Civil Judge, Junior Division, Sindkheda to Civil Judge, Junior Division, Dhule. The order, passed by the learned Civil Judge, Junior Division, Dondaicha dated 5.3.2004 shows that the plaint was returned by the Civil Judge, Junior Division, Dondaicha on the ground that it has no jurisdiction to decide whether the suit property is trust property or not. Thus, it is clear that Regular Civil Suit No. 17 of 2003 (Old No. 26 of 1997) was disposed of for want of jurisdiction to entertain that suit and it was not adjudicated by the Civil Court having jurisdiction to entertain it. In Spring Fresh Drinks Pvt. Ltd. Vs. Gani Sons Charitable Trust (supra), this Court had occasion to consider similar situation. This Court held that if the suit is disposed of on the ground that Civil Court has no jurisdiction to try the claim, the bar under Order 2 Rule 2 of the Civil Procedure Code would not be applicable. Same view was also taken previously in P. Vijaykumar and Ors. Vs. V.C. Gopalkrishnan (supra) by this Court.

Considering this consistent view taken by this Court, when Regular Civil Suit No. 17 of 2003 (Old No. 26 of 1997) was disposed of for lack of jurisdiction to the Civil Judge, Junior Division, the bar under Order 2 Rule 2 of Civil Procedure Code is not applicable, as previous suit was not adjudicated by the Court having jurisdiction to entertain that suit.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

First Appeal No. 2577 of 2013 and Civil Application No. 13119 of 2013

Decided On: 03.12.2018

 Shantidevi  Vs.  Seth Kasturmal Dalsukh Dharmashala and Ors.

Hon'ble Judges/Coram:

Sunil K. Kotwal, J.

Citation: AIR 2019(NOC)127 Bom

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Whether it is mandatory for all trustees to join in eviction suit against tenant?

After hearing both the learned Counsels I am not inclined to accept the submission of Shri Abhyankar whereas I am inclined to accept the contentions of Shri Apte as I find that the Full Bench Decision of Gujrat reported in MANU/GJ/0112/1973 : AIR1973Guj113 Atmaram Ranchhodbhai v. Gulam Moyeddin,(supra) is directly on the point and arises under the Rent Act. It has been held by the Full Bench of Gujrat that unless instrument of trust otherwise provides all co-trustees must join for filing a suit to recover the possession of the property from the tenant.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 2434 and 2773 of 1982

Decided On: 04.03.1993

Nagar Wachan Mandir, Pandharpur  Vs.  Akbaralli Abdulhusen and Sons 

Hon'ble Judges/Coram:

B.N. Naik, J.

Citation: 1994(2) BomCR 251,1994 MHLJ 281

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Whether appeal is maintainable against order passed by charity commissioner in intervention application?

 Section 73-A enables person to file application for impleadment as a party to any proceedings under the Act. The said person has to. prove his locus and interest in the public trust and then he can be joined as a party to such proceedings, in which he has moved the application. Thus, the section 73-A vests similar power as available to a Court under Order 1, Rule 10 of the Civil Procedure Code. The proceedings of application under section 73-A thus, does not merge in parent proceedings under section 22 of the Act.

 Thus, I answer the issue in para 4 accordingly. The order dated 14-12-2015 passed by the Deputy Charity Commissioner in the Intervention application under section 73-A of the Act which was filed in the proceedings under section 22 of the Act is not appealable under section 70 of the Act before the Joint Charity Commissioner.

IN THE HIGH COURT OF BOMBAY

F.A. No. 1064 of 2017 and Civil Appln. No. 2961 of 2017

Decided On: 16.08.2018

Kashyap Odhavji Thakkar Vs. Chandrakant R. Ganatra and Ors.

Hon'ble Judges/Coram:

Mridula Bhatkar, J.

Citation: 2019(1) MHLJ 102

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Whether change report proceeding are to be tried as civil suit?

 The Assistant Charity Commissioner has permitted the reporting trustee to examine a witness by filing an affidavit in lieu of examination in chief. The Assistant Charity Commissioner thus could not have refused to grant permission to the petitioners to cross examine the said witness. It is not in dispute that the proceedings under section 22 of the Maharashtra Public Trust Act, 1950 are to be tried as a civil suit. The impugned order in my view thus is ex-facie contrary to section 73 of the Maharashtra Public Trust Act, 1950.

IN THE HIGH COURT OF BOMBAY

Writ Petition (ST) No. 19077 of 2018

Decided On: 13.08.2018

Shaikh Mohd. Nadim Vs.  The Assistant Charity Commissioner, Maharashtra State and Ors.

Hon'ble Judges/Coram:

R.D. Dhanuka, J.

Citation: 2019(1) MHLJ 403

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Whether resolution taken by general body of trust will not be effective till it is approved by charity commissioner?

 Learned Advocate Shri Sunil Manohar then placed reliance on reported judgment in Chembur Trombay Education v. D.K. Marathe reported in MANU/MH/0863/2001 : 2002(3)BomCR161 . In paragraph 11 of this judgment the learned Single Judge has observed as under:

... A priori, any amendment or change brought about in accordance with law would come into effect from the date of resolution of the Society to bring about such a change. This proposition is fortified from the plain language of Section 22 of the Bombay Public Trusts Act. The said section requires that where any change occurs in any of the entries recorded in the register kept under Section 17, the trustee shall, within 90 days from the date of occurrence of such change, report such change to the Deputy or Assistant Charity Commissioner, as the case may be. The dictionary meaning of expression "occur" as observed in the Black's Law Dictionary is:

To happy; to meet one's eyes; to be found or met with; to present itself; to appear; hence, to befall in due course; to take place; to arise.

Giving the natural meaning to this word in Section 22 of the Act, coupled with the principle enunciated by the Apex Court that when the Act does not require that registration of any change is a condition precedent to come into effect, I have no hesitation in taking the view that the amendment to the constitution as well as subsequent elections of the President and members of the Governing Council, therefore, came into effect from the date of the respective resolutions of the general body. The enquiry postulated under Section 22 is only to ascertain the factum as to whether the change has occurred or not. In the event, the competent authority is satisfied that the change has not occurred in accordance with law, only then that change will have to be undone and status quo ante will have to be restored. A fortiori, resolution of the general body of the Society is sufficient to ignite the change of amendment in the constitution as well as of electing new general body for administering the affairs of the Society. The fact that the change report is pending consideration before the Charity Commissioner, would be of no avail....

9. Learned Advocate Dr. Anjan De fairly conceded that the judgment of learned Single Judge of this Court in Chembur Trombay Education v. D.K. Marathe reported at MANU/MH/0863/2001: 2002(3)BomCR161 does not support his contentions.

10. We find that any of the provisions contained in Bombay Public Trusts Act or the Rules thereunder do not mandate that amendment to the bye-laws or the rules of constitution of society passed by the society or trust shall not operate unless and until said amendment gets approval of Charity Commissioner/ Assistant Charity Commissioner etc.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 2672 of 2007

Decided On: 26.07.2007

 Ganesh S/o. Mahadeorao Thawre Vs. Central Hindu Military Education Society 

Hon'ble Judges/Coram:

A.H. Joshi and R.C. Chavan, JJ.

Citation: 2007 (6) MHLJ589

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Whether resolution taken by general body of trust will come in to effect from date of resolution?

Now we would revert to the second aspect of the matter regarding the relief of mandatory/injunction claimed against the appellants in A.O. No. 1260 of 1995 emanating from Notice of Motion No. 4762 of 1995 in suit No. 5470 of 1995. The same is pressed essentially on the premise that Shri Marathe still continues to be the life president of the Society. This premise, in my view, is wholly inappropriate. It clearly over looks the fact that the general body of the Society in its meeting dated March 19, 1995 resolved to amend the constitution thereby deleting the provisions which ordained that Shri Marathe shall remain life President of the Society. Besides deleting the said provision, the general body also resolved to amend the constitution by providing that the post of President as well as that of the Governing Council members shall be filled by election only and the term of their office would be upto a period of three years from the date of assuming office. Besides amending the constitution which effected the change, this change has been reported to the competent authority under section 22 of the Bombay Public Trusts Act, 1950. Besides this change, another change that occurred pursuant to the general body decision dated June 18, 1995 is that Shri V.M. Pant, Senior Member was elected as a President and other members were elected to the new Governing Council, who assumed office after the said resolution. Even this change was reported to the appropriate authority as required under section 22 of the Act. The argument, however, advanced on behalf of the respondent-Shri Marathe is that the said change will come into effect only after the same is accepted by the appropriate authority. The Counsel for the respondent further contends that the amendment to the constitution is yet to be approved by the appropriate authority and till such time the question of conducting elections on the basis of such amended constitution, as has been done in the present case, is totally without authority of law. He further submits that the change report with regard to the amendment of the constitution, being change Report No. 1456/1995, was initially rejected by the Assistant Charity Commissioner by order dated June 6, 1998 which order was later on set aside by the Joint Charity Commissioner on June 13, 1998 at the instance of appellants in A.O. No. 1260/1995. He however, contends that the said decision has been interdicted by the City Civil Court in Charity Appeal Application No. 15/1998. According to him, therefore, the said change report relating to amendment of the constitution is still pending consideration and till such time no steps can be taken on the basis of the amended constitution. This submission is totally misplaced and in the teeth of the settled legal position. The law with regard to the efficacy of any change brought about and its application is no more res integra. The Apex Court in decision reported in A.I.R. 1993 S.C.W. 3006; Managing Committee, Khalsa Middle School and another v. Smt. Mohinder Kaur and another, has considered this aspect of the matter. The Apex Court was called upon to examine similar provisions of the Societies Registration Act, 1860. The scheme of section 12-A of that Act is more or less same as section 22 of the Bombay Public Trusts Act. The Apex Court compared the said provision with the provisions of sections 18 and 19 of the Companies Act which mandate that the alteration or amendment to the Memorandum of Association of the Company takes effect from the date of its registration only. In that context the Apex Court in para 11 of the said judgment has observed that in absence of any requirement in the Act that the alteration in the Rules and Regulations must be registered with the Registrar, it cannot be held that registration of the amendment is a condition precedent for such an alteration to come into effect. A priori, any amendment or change brought about in accordance with law would come into effect from the date of resolution of the Society to bring about such a change. This proposition is fortified from the plain language of section 22 of the Bombay Public Trusts Act. The said section requires that where any change occurs in any of the entries recorded in the register kept under section 17, the trustee shall, within 90 days from the date of the occurrence of such change, report such change to the Deputy or Assistant Charity Commissioner, as the case may be. The dictionary meaning of expression "occur" as observed in the Black's Law Dictionary is:

"To happy; to meet one's eyes; to be found or met with; to present itself; to appear; hence, to befall in due course; to take place; to arise."

Giving the natural meaning to this word in section 22 of the Act, coupled with the principle enunciated by the Apex Court that when the Act does not require that registration of any change is a condition precedent to come into effect, I have no hesitation in taking the view that the amendment to the constitution as well as subsequent elections of the President and members of the Governing Council, therefore, came into effect from the date of the respective resolutions of the general body. The enquiry postulated under section 22 is only to ascertain the factum as to whether the change has occurred or not. In the event, the competent authority is satisfied that the change has not occurred in accordance with law, only then that change will have to be undone and status quo ante will have to be restored. A fortiori, resolution of the general body of the Society is sufficient to ignite the change of amendment in the constitution as well as of electing new general body for administering the affairs of the Society. The fact that the change report is pending consideration before the Charity Commissioner, would be of no avail. Understood thus, as a necessary corollary, it will have to be held that the respondent-Shri Marathe ceased to be the President of the Society from the date when the General Body elected another President in its meeting dated June 18, 1995. If this be the position, the respondent-Shri Marathe will have no right whatsoever to continue in the post of president and, there would be no question of granting any mandatory relief at this stage.

IN THE HIGH COURT OF BOMBAY

Appeal From Order No. 1260 of 1995 with Civil Application No. 6599 of 2000 with Appeal From Order No. 1256 of 1995

Decided On: 01.10.2001

Chembur Trombay Education Society and Ors. Vs. D.K. Marathe and Ors.

Hon'ble Judges/Coram:

A.M. Khanwilkar, J.

Citation: 2002(3)BomCR161 

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Good study material on Bombay public trust Act

https://drive.google.com/file/d/0B5vWGtQ14k1BNnNmWkVhYXpKaHM/view?usp=sharing

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Whether Contempt power is attracted in case of disobedience of administrative orders of charity commissioner?

It cannot be disputed that the Apex Court has held

that   the   Assistant   Charity   Commissioner   appointed   under

Section 5 of the Bombay Public Trusts Act is a ‘Court’ for

:the purposes of the Contempt of Courts Act.  The question is

while   exercising   jurisdiction   under   Section   41A   of   the

Bombay   Public   Trusts   Act,   whether   the   Charity

Commissioner   acts   as   a   ‘Court’   and   exercises   judicial   or

quasi judicial power.  This Court has already taken a view in

the case of Damodar v. Dy. Charity Commissioner, reported

in  2011(6)   Mh.L.J.   431,   and  Vanmala  v.  Dy.   Charity

Commissioner,   reported   in  2012(3)   Mh.L.J.   594,   that   the

power conferred by Section 41A of the Bombay Public Trusts

Act  is   purely   an   administrative   power   and  it  is   neither   a judicial or quasi judicial power. Hence, in such proceedings,

the Charity Commissioner does not act as a  ‘Court’ within

the meaning of the Contempt of Courts Act.  The provision of

Section 2(b) of the Contempt of Courts Act is not attracted.:

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR

CONTEMPT PETITION NO.227 OF 2012

 Budhasao Sitaramsao Dhenge, V V.G. Katgaye,

Coram : R.K. Deshpande, J.

Citation;2013(2) MH L J 220

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