*1* IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION No..... IN SUIT NO.1600/2009 Rajinder Kumar Sehgal and another. ..Plaintiffs -VERSUS- Lalchand Arya and others. ..Defendants ............... Mr.F.Devetre, Senior Counsel a/w Mr.T.P.Sen and V.Menon, Advocates i/b M/s Federal & Rashmikant, for the Plaintiffs. Mr.A.I.Talegaonkar i/b M/s Bhaishankar Kanga & Girdharlal, Advocate for the Defendants Nos.1, 3 and 8 to 16. Mr.Hiralal N. Thakar, Senior Counsel i/b M/s Bhaishankar Kanga and Girdharlal, for the Defendant No.17. ............... CORAM: A.P.DESHPANDE, J. Dated 16th July, 2009. PC:- Leave granted to take out this draft Notice of Motion. 1 The Plaintiffs came to be placed under suspension from the membership of the Defendant No.16 (herein after referred to as “Samaj”) pursuant to a decision taken in the meeting held on 9.06.2009 and communicated to the Plaintiffs vide notice dated 12.06.2009. The Defendants Nos.1 to 15 are the office bearers and/or members of the Managing Committee of the Defendant No. 16 Samaj. The Defendant No.16 is a public trust. The Defendant No. 17 as well is a public trust registered under and governed by the Bombay Public Trusts Act, 1950. The Defendants Nos.16 and 17 are *2* integrally connected with each other inasmuch as for a person to be eligible to become a member of the Defendant No.17 he needs to be a member of the Defendant No.16 Samaj. It can be seen from the respective trust deeds and the constitution, that the Defendant No. 16 Samaj controls the administration and management of the Defendant No.17. 2 The Plaintiffs claim to be connected with the activities of the Defendant No.16 Samaj and the Defendant No.17 since long and have participated in various meetings and “Satsangs” conducted over a period of time. They have also held important posts in the management of the Defendants No.16 and 17. The original trust deed of the year 1950-51 of the Defendant No.17 provided for nomination of the office bearers of the Managing Committee of the Defendant No.17 by the Defendant No.16, however, the period of their trusteeship in the Defendant No.17 was for a fixed period. The trust deed was amended in the year 1960. By virtue of modification effected in the year 1960 the control of the Defendant No.16 Samaj over the Defendant No.17 was diluted to some extent. However, the basic requirement for the trustee of the Defendant No.17 to be a member of the Defendant No.16 Samaj continued to hold the field. The main change effected by modification of the deed in the year 1960 was to confer the status of life trusteeship on the trustees of the Defendant No.17. It provided that the persons so elected/ nominated would continue to hold the office for lifetime. Some of the members of the Defendant No.16 Samaj were not satisfied with the set up introduced by the modification in the year 1960 and wanted the trustees of the Defendant No.17 to occupy the post for a *3* limited period and to do away with the status of lifetime trustees. With the said object in mind the Defendant No.16 Samaj considered the issues touching the said aspects and ultimately passed a resolution on 26.04.2009 in the General Body meeting modifying the constitution with a view to regulate the term of office of the trustees of the Defendant No.17. It appears that the present Plaintiffs who were holding the posts of President and lifetime Trustee in the Defendant No.17, by virtue of they being the members of the Defendant No.16 Samaj, were not in agreement with the decision seeking to change the term of office of the trustees of the Defendant No.17. As the Plaintiffs were not acting in conformity with the decision taken by the Defendant No.16 Samaj though they were directed to implement the decision, the Defendants Nos.1 to 15 who are the office bearers of the Defendant No.16 Samaj took a decision on 09.06.2009 to suspend the Plaintiffs from their membership of the Defendant No.16 Samaj. The said decision was communicated to the Plaintiffs by a letter dated 12.06.2009. It is this decision to place the Plaintiffs under suspension is the subject matter of the present suit. The substantive prayers made in the suit are in relation to seeking a declaration that the decision to suspend the Plaintiffs from membership of the Defendant No.16 Samaj is bad in law and an injunction is sought to prevent the Defendants from implementing the said decision. With a view to implement the decision taken by the Managing Committee of the Defendant No.16 Samaj, the Defendant No.17 convened a meeting scheduled to be held on 22.06.2009 and the agenda of the said meeting reads thus:- *4* “1 To approve the minutes of the previous meeting held on 20.05.2009. 2 To consider the suspension order dated 12.06.2009 issued by the Arya Samaj to the members of the Trust. 3 To fill the vacancies of the Office Bearers. 4 To transact any other business and/or consider any other item with the permission of the chair.” 3 Apprehending that in the meeting to be held on 22.06.2009 a decision prejudicial to the interest of the Plaintiffs would be taken, a relief of injunction was asked for by taking out the Notice of Motion No.2233/2009. 4 The said Notice of Motion No.2233/2009 was moved on 22.06.2009 on which date the learned counsel for the Defendant No.16 Samaj sought time to file the Vakalatnama and an affidavit in reply. However, the learned counsel for the Plaintiffs, inviting my attention to the notice convening the meeting dated 22.06.2009, had contended that the Defendant No.17 would be considering the subjects legality of which arise for consideration in the suit and the Notice of Motion and thus, ad-interim relief was prayed for. The Plaintiffs’ apprehension was that two of the subjects at Item No.2 and 3 would be considered in the said meeting and a decision being reached which would adversely affect interest of the Plaintiffs. With a view to maintain the status-quo in regard to suspension of membership of the Plaintiffs and consequent filling of the vacancies, an ad-interim order was passed restraining the Defendant No.17 from considering the subjects at Sr.Nos.2 and 3 by an order dated *5* 22.06.2009. When the matter came up for further hearing on ad- interim relief on 06.07.2009, the learned counsel for the Defendants Nos.1, 3 and 8 to 16 filed a pursis wherein it was stated that the Defendant No.16 Samaj has withdrawn the suspension orders suspending the Plaintiffs’ membership from the Arya Samaj passed in the meeting dated 09.06.2009 and communicated to the Plaintiffs by a notice dated 12.06.2009. After noticing the contents of the paragraph No.1 of the pursis I disposed of the Notice of Motion No. 2233/2009 as the same was rendered infructuous inasmuch as the subject matter of the Notice of Motion was legality of the suspension orders which the Defendant No.16 Samaj had withdrawn. The suspension orders were withdrawn w.e.f. 06.07.2009 and hence, the learned Senior Counsel appearing of the Plaintiffs did express an apprehension that the actions taken by the Defendants in the intervening period between 09.06.2009 till 06.07.2009 could adversely affect the Plaintiffs. It appears that at that point of time the Plaintiffs were not aware as to what actions could have been taken during the intervening period viz. from the time of suspension till its withdrawal. Hence, liberty was granted to the Plaintiffs to take out another Notice of Motion explaining the action/actions taken by the Defendants which goes to adversely affect the Plaintiffs. 5 Thereafter, the Plaintiffs have taken out the present Notice of Motion wherein a relief in the nature of status-quo prevailing as on 22.06.2009 is asked for. At this juncture it would not be out of place to point out that the Defendants Nos.1, 4 and 15 have held the meeting of the Defendant No.17 on 22.06.2009 and *6* transacted certain business which according to the Plaintiffs are in violation of the order passed by this Court. Thus, it is submitted that the proceedings of the meeting dated 22.06.2009 and the business transacted therein be treated as non-est. 6 The main issue which falls for consideration is as to whether the decision taken by the Defendants Nos.1 to 15 in the meeting of the Managing Committee (Antrang Sabha) suspending the Plaintiffs from the membership of the Defendant No.16 Samaj is legal or otherwise. Resolution dated 26.04.2009 which altered the term of office of trustees/ office bearers of the Defendant No.17 was not being implemented by the Plaintiffs despite directions to comply. Hence, the Defendants Nos.1 to 15 placed the Plaintiffs under suspension. It is not in dispute that the suspension of the Plaintiffs is ordered on account of purported indiscipline in acting in defiance of the resolution passed by the General Body. Thus, the order of suspension partakes the colour of a penal action. Clause-5 of the constitution deals with the power of the Managing Committee (Antrang Sabha) and the General Body in the matter of suspension from membership and removal from membership respectively. Clause-5 of the constitution reads thus:- “The Antrang Sabha can suspend a member and the General Body remove him from the Arya Samaj if:- (a) he/she acts in contravention of the aims and objects of the Arya Samaj. (b) he/she is convicted by a competent court in a case involving moral turpitude. (c) he/ she becomes insane.” *7* 7 It can be thus, seen that the Managing Committe has power and authority to suspend the member if the member acts in contravention of the aims and objects of the Arya Samaj. Other two clauses are not relevant for the purpose of this suit. The learned senior counsel for the Plaintiffs has contended that the Managing Committee has acted without jurisdiction, power and authority in suspending the Plaintiffs inasmuch as the Plaintiffs had not contravened the aims and objects of the Defendant No.16 Samaj. In his submission non implementation of the resolution passed by the General Body or neglect in that regard cannot be construed as acting in contravention of the aims and objects of the Defendant No. 16 Samaj. The aims and objects are spelt out in clause-2 of the constitution and the same reads thus:- “2. The aims and objects of this Arya Samaj are the same as are mentioned in the TEN principles or Niyamas of the Arya Samaj as enunciated by Maharashi Dayanand Saraswati.” The ten principles of the Arya Samaj reads thus:- “1. God is the cause of all knowledge and of all that is known through knowledge. 2. God is Existent, Intelligent and Blissful. He is Formless, Omnipotent, Just, Merciful, Unborn, Endless, Unchangeable, Beginningless, Unequaled, the support of all, the Lord of all, All-Pervading, All-Controlling, Unchanging, Immortal, Fearless, Eternal and Holy, and the Maker of the Universe. To Him alone worship is due. *8* 3 The Vedas are the scriptures of true knowledge. It is the first duty of all Aryas to read them, teach them, recite them and hear them being read. 4 One should always be ready to accept truth and to give up untruth. 5 One should do everything according to the dictates of Dharma (righteousness) i.e. with due regard to Right or Wrong. 6 The primary object of this Society is to do good to the whole world, i.e. to achieve its physical, spiritual and social progress. 7 One’s dealings with all should be regulated by Love and Justice in accordance with the dictates of Dharma (righteousness). 8 One should promote Vidya (knowledge) and dispel Avidya (ignorance). 9 One should not be content with one’s own welfare but should look for one’s own welfare in the welfare of all. 10 One should regard oneself under restriction in following the rules of social welfare, while in following the rules of individual welfare all should be free.” 8 The above extracted principles enunciated by Maharshi Dayanand Saraswati are the broad principles which need to be followed as a way of life. The followers of Arya Samaj are expected to abide by the said values. The said principles are broad *9* statements, which go to define and explain what is God, what is Knowledge and emphasizes the importance of Vedas, Dharma, Love and Justice and Welfare of all. It can be safely said that if a member takes a stand in contravention of the said principles, it could be said that he would make himself liable for an action under Clause (5) of the constitution. It is no ones case that the present Plaintiffs have taken a position contrary to the said ten principles stated by Maharshi Dayanand Saraswati. What is contended by the Defendants is that the Plaintiffs are not following the principles/ dictates in true spirit and thus, are acting contrary to the said principles. I am prima facie of the view that if a member does not implement the resolution passed by the General Body or neglects to do so, he cannot be placed under suspension and the said act or neglect cannot be construed as tentamounting to contravention of the principles set out herein above. 9 The learned senior counsel for the Defendants have raised a preliminary objection about maintainability of the present suit by contending that Section 50 of the Bombay Public Trusts Act bars such a suit as no consent of the Charity Commissioner is obtained. 10 Both the learned counsel appearing for the respective parties have taken me through various judgments dealing with the bar of Section 50 of the Bombay Public Trusts Act. The legal position that emerges touching the bar of Section 50 can be summarized thus:- (a) that a suit for enforcement of the public rights cannot be instituted by or against the trust or trustees without obtaining permission of the Charity Commissioner as envisaged by section 50; *10* and (b) a suit for enforcement of the private rights can be filed by the trustees against other trustees and the bar of Section 50 operates only when the Plaintiff is trying to vindicate public rights in relation to the trust as opposed the private rights. I do not deem it necessary to burden this order with various judgments dealing with this aspect of the matter at this stage. 11 Suffice it to state that the grievance of the Plaintiffs is that civil rights created in the Plaintiffs by virtue of their membership of the Defendant No.16 Samaj are breached on account of their suspension and private civil right to continue to be the members of the Defendant No.16 Samaj without any fetter whatsoever have been violated. Thus, what is claimed in the suit is vindication of the private rights by the Plaintiffs in relation to their membership of the Defendant No.16 Samaj. There is no element of enforcing a public right. I am of the prima facie view that the Plaintiffs are seeking to enforce the private right which hinges upon the legality or otherwise of the suspension order and thus, the bar of Section 50 of the Bombay Public Trusts Act does not come in the way of the Plaintiffs for instituting the present suit. I hasten to add this a prima facie view of the matter. Once the pleadings are completed, it would be open for the Defendants to apply for framing the preliminary issue in terms of Section 9(a) of the Civil Procedure Code and the parties would then address the issue at length. 12 The Plaintiffs claim to be associated with the activities of the Defendant No.16 for many years and putting them under suspension not only results in lowering of their image and causing irreparable loss which cannot be compensated in terms of money, *11* but also goes to visit penal consequences having regard to the fact that suspension of the Plaintiffs’ membership is on account of alleged indiscipline in not implementing the decision taken by the General Body dated 26.04.2009. The balance of convenience also lies in favour of the Plaintiffs. Hence, the Plaintiffs are entitled to ad-interim relief. 12 It would not be out of place to mention that the Plaintiffs were not permitted to attend the meeting of the Defendant No.17 held on 22.06.2009 only on account of the Plaintiffs’ suspension of membership of the Defendant No.16 Samaj. The suspension of the Plaintiffs’ membership in the Defendant No.16 Samaj does not ipso-facto result in unseating of the Plaintiffs from the posts they held in the Defendant No.17 viz. President and life trustee. Even otherwise, I have no hesitation in concluding that the proceedings of the meeting dated 22.06.2009 and the business transacted therein was in breach of letter and spirit of the order passed by this Court dated 06.07.2009 and thus, the proceedings of the meeting dated 22.06.2009 and so also the business transacted therein is held to be non-est. 13 Before I part with the order, it is necessary to clarify that:- (a) The correctness of the decision of the General Body reflected in the resolution dated 22.06.2009 is not challenged in the suit and hence, no observation in this order has any bearing on the same. This order does not prevent the Defendants from implementing the decision and resolution dated *12* 26.04.2009, however, the Plaintiffs are at liberty to question the correctness thereof before the appropriate forum. (b) It is also clarified that this order does not consider the legality or otherwise of the elections of the office bearers/ Managing Committee of the Defendant No.16 Samaj which were to be held in the Annual General Body meeting on 14.06.2009 and which came to be postponed to 19.07.2009. In the intervening period the process of election had commenced and as the nominations were less in number than the posts the candidates are declared to have been elected. This order does not deal with the said election and it is clarified that it shall be open for the parties to approach the appropriate forum in case there is any dispute in that regard. (c) This order also does not consider the question as to what would be the status of the Plaintiffs in the management of the Defendant No.17 in view of passing of the resolution of the Defendant No.16 Samaj in the meeting held on 26.04.2009. This question as well has to be raised before the appropriate forum. 14 Hence, partly allowing this Notice of Motion I pass the following order:- (i) The order of suspension dated 09.06.2009 *13* communicated to the Plaintiffs vide notice dated 12.06.2009 which came to be withdrawn by the Defendants w.e.f. 06.07.2009 is stayed and shall not operate during the period commencing from 09.06.2009 to 06.07.2009. (ii) It is declared that the proceedings of the meeting of the Defendant No.17 dated 22.06.2009 so also the business transacted therein shall be treated as non-est being in violation of the order passed by this Court dated 06.07.2009. (iii) Consequently, the Defendants are restrained from giving effect to the suspension of the Plaintiffs and from giving effect to the proceedings and business transacted in the meeting held on 22.06.2009. 15 The learned counsel for the Defendants Nos.1, 3, 8 to 17, at this stage, make a request to stay this order for a period of three weeks. This order goes to protect the Plaintiffs by granting injunction and if in the event the request for stay is granted the very purpose of granting injunction would stand frustrated. Hence, the request is rejected. (A.P. DESHPANDE, J) *14* IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2233/2009 IN SUIT NO.1600/2009 Rajinder Kumar Sehgal and another. ..Plaintiffs -VERSUS- Lalchand Arya and others. ..Defendants ............... Mr.F.Devetre, Senior Counsel a/w Mr.T.P.Sen and V.Menon, Advocates i/b M/s Federal & Rashmikant, for the Plaintiffs. Mr.A.I.Talegaonkar i/b M/s Bhaishankar Kanga & Girdharlal, Advocate for the Defendants Nos.1, 3 and 8 to 16. Mr.Hiralal N. Thakar, Senior Counsel i/b M/s Bhaishankar Kanga and Girdharlal, for the Defendant No.17. ............... CORAM: A.P.DESHPANDE, J. Dated 16th July, 2009. PC:- 1 My attention is invited to the typographical error appearing in the order dated 06.07.2009 passed in the Notice of Motion No.2233/2009, which shows the appearance of the learned counsel for the Defendant No.5, instead the same ought to be the Defendant No.15. The learned counsel for the other side has no objection to carry out the correction. 2 Accordingly, the mistake is directed to be corrected forthwith. JUDGE