1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5962 OF 2009 Mr. Pankaj Kowli .. Petitioner Vs Dr. S.S. Rege & Ors .. Respondents A.Y. Sakhare, Sr. Advocate a/w Sanjeev Kadam i/b U.M. Jhaveri for the petitioner Prashant Chavan i/b ARA Law for respondent no. 1 Sandeep Shinde i/b R.J. Nathani for respondent no. 2 Deepa Chavan i/b Vinay Bhate for respondent no. 6 Rajeev Patil i/b Roop Vasudeo for respondent nos. 3, 4 and 5 Sagheer Khan with Akhlaque Solkar i/b Judicare Law Associates for respondent no. 8 A.P. Vanarase, AGP for respondent no. 1 CORAM : Smt. V.K. TAHILRAMANI, J. DATE : 10th September, 2009 P.C.: 1. This writ petition is directed against the order dated 22nd May, 2009 passed by the Deputy Charity Commissioner, Greater Mumbai Rma WP5962-09.sxw 2 Region whereby the application preferred by the petitioner under Section 73A of the Bombay Public Trusts Act, 1950 to implead him as a party to the change report proceedings which were pending before the Charity Commissioner came to be rejected. 2. A few facts which are relevant are as follows: In respect of Balmohan Vidyamandir Trust, change report had been filed by respondent no. 3 under Section 22 of the Bombay Public Trusts Act, 1950 (hereinafter referred to as the Act). This change report is filed in respect of appointment of respondent no. 6 as a new trustee. The contention of the petitioner is that the relations between respondent no. 3 and respondent no. 6 are not cordial though they are father and son and therefore, the reporting trustee - respondent no. 3 will not prosecute the change report though the change has already been legally affected. It is averred by the petitioner that he wants to place on record true and correct information in respect of management and administration of the trust in respect of change reported by the reporting trustee. It is further contended by the petitioner that in case he is not joined as a party to the proceeding, he will not get an Rma WP5962-09.sxw 3 opportunity to place true and correct information before the Charity Commissioner and to deal with the allegations leveled against him by one Shri. Vinod Naik (respondent no. 7). Thus, according to the petitioner, he is a necessary party. The application by the petitioner to be impleaded as a party is objected by respondent nos. 3 to 5 and respondent no. 8. On their behalf, it is submitted that the petitioner does not have any locus standi to join as a party in the proceedings relating to the change report. 3. The question before me is as to whether the intervention application preferred by the petitioner has been rightly rejected by the Deputy Charity Commissioner. The change report in question is in respect of addition of name of respondent no. 6 as a new trustee. What is to be decided by the Charity Commissioner in the said proceedings is whether the change effected is valid and is in accordance with the provisions of Trust Deed. Thus, the scope of the change report is restricted to the issue as to whether respondent no. 6 was legally and validly appointed as one of the trustees of the said trust. This is the narrow scope of the change report which will fall for Rma WP5962-09.sxw 4 consideration before the Deputy Charity Commissioner. 4. The petitioner seeks intervention in the proceedings before the Charity Commissioner based on his claim that he is a person having interest in the trust as visualized under Section 10 of the Bombay Public Trusts Act. According to the petitioner, he is having interest in the Trust as his daughter is studying in Bal Mohan Vidya Mandir School, which is run by the present trust and as he is Vice President of Parent Teacher Association of Secondary section of the school run by the trust . Now, the question is, as to whether the intervener can be treated as a person having interest in the trust, as contemplated in above mentioned section merely because his daughter is studying in the school, run by the trust and merely because he is the Vice President of Parent Teacher Association of that school. 5. The interest contemplated under Section 2(10)(e) of the Act has to be real substantive and subsisting. It would be said that an interested person is the person whose interest will be affected by the result of the litigation. Looking to the fact that the matter before the Charity Commissioner relates to the change report, where the Rma WP5962-09.sxw 5 question to be decided is only whether respondent no. 6 is legally and validly appointed as one of the trustees, it cannot be said that there is any question of deciding any point of interest of the petitioner in the proceedings before the Charity Commissioner. The only question before the Charity Commissioner is whether the change effect is valid and is in accordance with the provisions of the Trust Deed. The interest of the petitioner is not going to be decided in the proceedings before the Charity Commissioner. 6. Under Section 73A, the inquiry officer may join any person as a party to the proceedings pending before the Charity Commissioner only if the said person has interest in Public Trust. Section 2(10) of the Bombay Public Trusts Act, 1950 defines " a person having interest". It also deals with cases relating to the temple, math, wakf and society. Admittedly, the trust in the present case does not fall under any of these categories. Thus, the only category under which the trust can be covered is Section 2(10)(e) which deals with cases of any other public trusts. In these cases, the person having interest can be any trustee or a beneficiary. Admittedly, the petitioner is not a trustee of the trust Rma WP5962-09.sxw 6 nor he can claim to be a beneficiary of the said trust. However, the learned counsel for the petitioner submitted that the definition of a person having interest is inclusive hence, it would not just cover the case of the person being a trustee or beneficiary of the trust but it would also cover cases wherein a person has interest. He submitted that as his children are studying in a school run by the trust and as he is vice president of the Parent Teacher Association of the said school, he has sufficient interest in the said matter. He submitted that the aims and objects of the trust is education and welfare of the students, therefore, the petitioner being vice president of the Parent Teacher Association would have interest in the matter. The learned counsel for the petitioner submitted that as his children are studying in the school run by the trust, any decision taken by the trustees would affect the education of his children and their future, hence, he is a person having interest. 7. The learned counsel for the petitioner further submitted that some allegations have been made against him by respondent no. 7 and to rebut the said allegations, it is necessary that he be impleaded as a Rma WP5962-09.sxw 7 party in the proceeding. As far as this aspect is concerned, the Charity Commissioner while deciding the change report is not going to decide whether there is any truth / substance in the allegations leveled against the petitioner but the Charity Commissioner is only going to decide as to whether respondent no. 6 was legally and validly appointed as one of the trustee. Taking into consideration the narrow scope of the change report proceedings, it cannot be said that the petitioner is a necessary party in the proceedings. 8. In the present matter, it is seen that respondent nos. 1, 2 and 6 support the petitioner and respondent nos. 3, 4, 5 and 8 have opposed the petitioner being impleaded as a party. As far as respondent no. 7 is concerned, none appeared despite notice. Respondent no. 1 is the managing trustee of the Balmohan Vidyamandir Trust. Respondent no. 2 is the chairman of the said trust. Respondent nos. 3 and 4 are the trustees of the said trust. Respondent nos. 5 and 6 are the trustees and directors of the said trust. Respondent nos. 7 and 8 are initial objector to the change report in question and respondent no. 9 is the Deputy Charity Commissioner. Rma WP5962-09.sxw 8 9. The learned counsel for the petitioner tried to contend that the petitioner is concerned with the administration of the trust and he is connected with the activities carried out by the trust. Admittedly, the petitioner is not a trustee. One fails to understand as to on what basis, it can be said that the petitioner is concerned with the administration of the trust and he is connected with the activities carried out by the trust. The grounds on which the application for intervention is preferred are a) to rebut the allegations again him by respondent no. 7, b) he is required to place true and correct information in respect of management and administration of the trust as well as change effected and reported by the reporting trustee, c) that the petitioner would be in a position to assist the Charity Commissioner to arrive at right conclusion. As far as the first ground is concerned, I have already observed that the Charity Commissioner in these proceedings will not be called upon to decide the veracity or otherwise of the allegations made by respondent no. 7 against the petitioner in the proceedings pending before him in which the petitioner is seeking intervention. As far as last two grounds are concerned, respondent no. 6 to whom the Rma WP5962-09.sxw 9 change report pertains, can easily represent himself and his case before the Charity Commissioner. He can place all the true and correct facts before the Charity Commissioner and the presence of the petitioner is not required for that purpose. It may also be stated here that application of respondent no. 6 for intervention has already been allowed by the Charity Commissioner. Thereafter, the petitioner has moved his application for intervention. 10. In support of the contention that the petitioner is a person having interest in the trust, the learned counsel for the petitioner has placed reliance on the decision in the case of Digamber Pralhad Jot Vs Satyanarayan Biharilal Zunzunwala, AIR 1978 Bom. 196. The case also pertains to a school run by a trust. The learned counsel submitted that in the said case, it was held that as the ward of the petitioner therein was studying in the school, run by the trust, the petitioner is an interested person. However, it is seen that it is not just on the basis of the fact that the child of the petitioner therein was studying in the school, that it was held that the petitioners can be said to have interest but it was based on the fact that they were also donors of the Rma WP5962-09.sxw 10 registered Public Trust and that they had applied for membership of the trust and it was their allegation that their request for membership was not allowed on account of some ulterior motive. Thus, taking cumulative view of the whole material placed before the Deputy Charity Commissioner, it was held that they were persons having interest. However, the facts in the present case being entirely different, the said decision would not apply to the facts of the present case, hence it would be of no help to the petitioner. 11. Another decision on which reliance is placed is a decision of the Calcutta High Court dated 17th March, 1910 in the case of Mohan Roy and Another Vs Eradatullah Mallik and Others, Indian Cases Vol VI, Page 119. The ratio therein is that suit cannot be maintained by an infant. The issue therein was whether a suit can be maintained by an infant who is interested in a public religious and charitable trust. On perusing the said decision, it cannot be said that it would apply to the facts of the present case. 12. Reliance is also placed on the decision in case of President, Rma WP5962-09.sxw 11 Purohit Sangh & Ors Vs Prabhakar Ramchandra Gokhale & Ors, 2004(Supp.) Bom.C.R. 292. Reliance was placed on paragraph 15 of the said decision. However, the issue therein was whether certain persons can be appointed on the board of trustees. In such case, the question was who can be a suitable and fit person for being appointed as a trustee. In view of these facts, it is stated in Para 15 that: "To put it differently, it is a public trust "for the community, by the community and of the community" or any section thereof. If such is the purport of the trust then diversified representation and involvement of all concerned or the section of the public who have interest in the trust and in particular associated with the day to day activities of the temple or the Devasthan is inevitable and the most appropriate step to further and promote the objectives of such a trust." It is seen that the observations have been made in view of the peculiar facts of that case. Moreover, the decision relates to a religious trust. It relats to the appointment of a trustee. First of all, it being a religious trust, different tests would apply and the same cannot be made applicable to a public trust. There a temple was involved and Section 2(10)(a) of the Act says that a person having interest (includes) in the case of a temple, person who is entitled to attend at Rma WP5962-09.sxw 12 or is in the habit of attending the performance of worship or service in the temple,or who is entitled to partake or is in the habit of partaking in the distribution of gifts thereof. However, for a person to claim he has an interest in a public trust, he has to be a trustee or a beneficiary. Thus, the decision cannot apply to the facts of the present case. 13. Lastly, reliance is placed on the case of Suresh Hiralal Shah Vs Mahavir Swami Digambar Jain mandir Trust, 2001(3)BLR 779. Reliance was placed on the observation therein that the person interested in all the affairs of the trust has a right to join in the proceedings. Firstly, this decision relates to a temple and the criteria for temple and any other public trust as observed by me in the foregoing paragraphs is different. Moreover, on going through the said decision, it is clear that the intervenor therein had placed sufficient material to show that he was having interest in the trust. Hence, looking to the material on record, the court held that he was a person interested in the trust. However, that is not a position in the present matter, therefore, this decision cannot be made applicable to the present matter. Rma WP5962-09.sxw 13 14. The proceedings which are pending before the Charity Commissioner are proceedings under Section 41(D) of the Public Trust Act. Under the said proceedings, only a trustee can be removed, dismissed or placed under suspension. In view of this position, question of intervention by the petitioner as a party opponent to the original application under Section 41(D) does not arise. On the contrary, if at all the petitioner has anything to say, he can very well come forward as a witness of the respondent no. 6 and depose. Admittedly, the petitioner is not a trustee of the trust. Therefore, question of removal, dismissal or suspension of the petitioner from the trust does not arise and hence, the question of joining the petitioner as a party to the proceedings does not arise. In the facts of the present case, the petitioner cannot be said to be necessary party or proper party to the proceedings under Section 41(D) of the Act and the petitioner cannot be said to be a person interested in affairs of the trust. Looking to all the facts in this case, the petitioner is not at all necessary party or even a proper party and the change report can be decided in absence of the petitioner without causing any harm, injury Rma WP5962-09.sxw 14 or prejudice either to the intervenor or to the change report in any manner. 15. The learned counsel for the petitioner thereafter submitted that though respondent nos. 7 and 8 are also parents of children studying in a school run by the trust, they are parties to the proceedings relating to the change report pending before the Charity Commissioner. As far as this aspect is concerned, it is seen that respondent no. 8 had written a letter dated 1st March, 2008 to the Deputy Charity Commissioner, Greater Mumbai relating to the subject of appointment of new trustee on the Balmohan Vidyamandir Trust without due process. This was prior to the change report being filed in the office of the Charity Commissioner. In the said letter, respondent no. 8 Mr. Naik has stated that furthermore, it is learnt by him that the change report to that effect will be filed in the office of the Charity Commissioner by the reporting trustee, hence respondent no. 8 Mr. Naik prayed that said change report should not be accepted by the office of the Charity Commissioner without giving him hearing and thorough investigation by the office should be done in respect of appointment of Mr. Guruprasad Rege as a trustee and thereafter the Charity Commissioner Rma WP5962-09.sxw 15 be pleased to reject the said change report. Similarly, letter was sent by respondent no. 7 to the Charity Commissioner. As these letters were received prior to change report being filed before the Charity Commissioner, notices came to be issued to respondent nos. 7 and 8 and as such they are parties to the proceedings. 16. Moreover, the change report was filed before the Charity Commissioner on 15.03.2008. Thereafter, three applications came to be moved including application by respondent nos. 6 - Mr. Guruprasad Rege for intervention. The said application was moved on 13.08.2008 and it also came to be granted on 25th February, 2009. In the said proceedings, the present petitioner who is also a practicing advocate filed his vakalatnma on 12th June,2008. Thereafter, his advocate was regularly attending proceedings before the Charity Commissioner to watch how the matter is progressing. His application for intervention was prepared and was ready in the month of October, 2008 which is seen from the application itself. However, the application for intervention came to be filed only on 20th June, 2009. Though, he has filed the vakalatnama in the matter on 12th June, 2008, he filed the Rma WP5962-09.sxw 16 application only on 20th April, 2009 i.e after eight months. Mere filing of vakalatnama is not sufficient. Actually, it was necessary for the petitioner to file his intervention application on 12th June, 2008 itself under Section 73A to get him added as a party to the proceedings before the Charity Commissioner. The petitioner was aware that the change report pending before the Charity Commissioner had been expedited by the High Court and made time bound. Despite this, only at the fag end, he had preferred this application for intervention. No explanation has been furnished as to why the application for intervention was not preferred for nine months and the petitioner preferred to remain a silent spectator before the Charity Commissioner for such a long period. The said step appears to have been taken belatedly, only with a view to delay and obstruct the proceedings before the Charity Commissioner. 17. The petitioner claims to be an interested person on the basis of the fact that he is the vice president of the Parent Teacher Association of the school. On this aspect, the learned counsel for respondent no. 3 has drawn my attention to the notification dated 22nd May, 2000 Rma WP5962-09.sxw 17 which deals with the Parent Teacher Associations. In the said notification, it is specifically stated that the mere object behind the Parent Teacher Association is to solve disputes between children and the teachers and it is not expected that the Parent Teacher Association should interfere in daily activities of the trust or the administration of the trust. In view of this notification, it is clear that the petitioner on the basis of being vice president of the Parent Teacher Association cannot interfere with the administration or daily activities of the trust. 18. In view of all the above, it is seen that in the proceedings pending before the Charity Commissioner, the Charity Commissioner has to decide as to whether the appointment of Shri. Guruprasad Rege as a trustee by the Board of Trustee is legal and valid and whether it is in the light of the trust deed of the Trust. There is no question of any point of interest of the petitioner being decided in the matter pending before the Charity Commissioner. The question is not before the Charity Commissioner whether the present petitioner is to be appointed as a trustee or not. There is nothing on record to show that Rma WP5962-09.sxw 18 the petitioner is an interested person as contemplated under Section 2(10)(e) of the Bombay Public Trust Act, 1950. The learned counsel for the petitioner tried to contend that the petitioner apprehends that the trust may take certain decisions which may affect the education or future of the children. As far as this aspect is concerned, obviously no single trustee can take any decision and it would be all the trustees as a whole which would take a decision, hence this apprehension on the part of the petitioner is unfounded. Moreover, the present petitioner has moved his application for intervention only on 20th April, 2009 i.e after lapse of period of 8 months. 19. Looking to the provisions of the Act, it cannot be said that the petitioner is a beneficiary as stipulated and contemplated under the Act. The change report neither pertains to the administration of the trust nor does it relate to the activities of the trust. None of these questions are going to be decided in the proceedings relating to the change report, hence the learned Deputy Charity Commissioner has rightly rejected the application for impleading the petitioner as party. Rma WP5962-09.sxw 19 20. In the result, no case is made out for interference. The writ petition is dismissed. (SMT. V.K. TAHILRAMANI, J) Rma WP5962-09.sxw