1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL REVISION APPLICATION NO. 98 OF 2006 CIVIL REVISION APPLICATION NO. 98 OF 2006 CIVIL REVISION APPLICATION NO. 98 OF 2006 Shikshan Prasarak Sanstha, Vidya Nagar, Kavathe-Mahakal, Dist. Sangli through its Secretary & Ors. .. Petitioners (Org.Defts.1 to 8, 10 & 11). Vs. Shri Baburao Virupaksha Kore & Ors. Respondents (1 & 2 orig.plaintiffs 1 & 2, No.3 org.deft. No.9) Mr. Prashant Patil, Advocate, holding for Mr.Umesh R.Mankapure, Advocate, for the petitioners. Mr. Machhindra A. Patil, advocate for respondents 1 & 2. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 12th February,2008. DATE: 12th February,2008. DATE: 12th February,2008. 2 P.C. P.C. P.C. 1. To state in brief, respondents Nos. 1 and 2 - the original plaintiffs, had filed Regular Civil Suit No.85 of 2003 in the Court of Civil Judge, J.D. at Kauthe Mahakal, seeking certain declarations and perpetual injunction. The present appellants, who are the original defendants Nos. 1 to 8, 10 and 11, made an application to frame a preliminary issue about the jurisdiction of the Civil Court to entertain the suit on the ground that in such type of suit, it was necessary to obtain prior permission of the Charity Commissioner under Sections 50 and 51 of the Bombay Public Trusts Act, 1950 (hereinafter referred to as "the said Act")and as such permission has not been obtained, the suit is not tenable and the Civil Court does not have jurisdiction. The trial Court framed the necessary issue and after hearing the parties, held that the Civil Court had jurisdiction even without prior permission of the Charity Commissioner. Being aggrieved by the said decision, the original defendants have preferred the present Appeal. 2. Admittedly, Petitioner No.1 Shikshan Prasarak Sanstha is a registered Public Trust and the plaintiff No.1 - Baburao Virupaksha Kore is the President of the 3 Trust. Plaintiff No.2 - Dr. N.R. Patil is one of the trustees. Defendant Nos. 2 to 10 are also trustees of the said Trust. On 11.10.2003, the plaintiff No.1, as the President of the said Trust, called a meeting of the Board of Trustees on 18.10.2003 at 1 p.m. in the office of the Trust to discuss the subjects mentioned in the said notice. However, when the meeting was called, plaintiff Nos. 1 and 2 remained absent. In their absence, the meeting was held and the conduct of the plaintiff Nos. 1 and 2 as well as the letters addressed by them to the Trust were discussed. Certain strictures were passed about the conduct of both of them and as the plaintiff No.1 expressed in his letter that he was not willing to be the President and he was forced to accept the post of President of the Trust, a resolution was passed wherein it was observed that if the plaintiff No.1 was not willing to continue and if he wanted to relinquish the post of President, the Board of Trustees had no objection to the same. The next meeting of the Board of Trustees was called on 23.10.2003 at 1 p.m. in the office of the Trust. The notice for that meeting was issued by the vice-president. In that meeting, by passing resolution No.2,all the powers of the plaintiff No.1 as President were withdrawn and by passing resolution No.3, the powers of the President were vested in the vice-president. 4 3. It is material to note that on the basis of the notice issued on 18.10.2003 for calling the meeting on 23.10.2003 for withdrawal of powers of the President and for investment of the said powers in vice-president, the plaintiffs had filed the suit and sought a declaration that the notice dated 18.10.2003 is illegal and void ab initio and for perpetual injunction restraining the trustees from holding the meeting on 23.10.2003 and from passing any resolutions on the basis of the agenda of that notice. It appears that a prayer was made for temporary injunction,but it was not granted. In the result, the meeting was, in fact, held on 23.10.2003 and the aforesaid resolutions were passed. After that the plaintiff made an amendment in the plaint and sought a declaration that the meeting held on 23.10.2003 was illegal and void ab initio and the resolutions passed therein were also not binding. From these facts, it is clear that the plaintiffs by filing the said suit challenged the holding of meeting on 23.10.2003 and passing of certain resolutions in that meeting and from restraining the trustees from acting upon the said resolutions whereby the powers of plaintiff No.1 as president of the Trust were withdrawn and whereby the powers of the present were invested in the vice-president. 5 4. Relevant part of Section 50 of the said Act reads as follows :- "50. Suit by or against or relating to public trusts or trustees or others in any case - (i) ... (ii) ... (iii) ... (iv) for any declaration or injunction in favour of or against a public trust or trustee or trustees or beneficiary thereof, the Charity Commissioner after making such enquiry as he thinks necessary, or two or more persons having an interest in case the suit is under sub-clauses (i) to (iii), or one or more such persons in case the suit is under sub-clause (iv) having obtained the consent in writing of the Charity Commissioner as provided in section 51 may institute a suit whether contentious or not in the Court within the local limits of whose jurisdiction the whole or part of the subject-matter of the trust is situate, to obtain a decree for any of the following reliefs :- 6 (a) to (o) x x x (p) declaration or denying any right in favour of or against a public trust or trustee or trustees or beneficiary thereof and issuing injunctions in appropriate cases; or" Section 51 provides that if any person having an interest in any public trust intends to file a suit of the nature specified in Section 50, he may apply to the Charity Commissioner in writing for his consent and after hearing the parties, the Charity Commissioner may grant or refuse his consent. 5. On reading the relevant provisions of Section 50, as quoted above, it is clear that where one or more persons intending to file a suit for any declaration or injunction in favour of or against the public trust or trustee or trustees or beneficiary thereof, they may, having obtained the consent in writing of the Charity Commissioner, institute a suit seeking relief of declaration or denying any right in favour of or against the public trust or trustee or trustees or beneficiary thereof and issuing injunction in appropriate cases. The learned trial Court without noting the facts of the 7 case, in Namgonda Jingonda Path vs. Appasaheb Bapurao Namgonda Jingonda Path vs. Appasaheb Bapurao Namgonda Jingonda Path vs. Appasaheb Bapurao Walwekar & Ors. 2000 Vol.102(2) Bom.L.R.142 Walwekar & Ors. 2000 Vol.102(2) Bom.L.R.142 Walwekar & Ors. 2000 Vol.102(2) Bom.L.R.142 held that when the relief is not sought against the Trust, the suit is tenable without consent of the Charity Commissioner. In fact, in that case, taking into consideration the facts in totality, it was found that the plaintiffs had filed the suit essentially to vindicate their civil rights and they had not claimed any relief against the Trust. However, in the present suit, the plaintiffs clearly sought a declaration that the notice issued for calling the meeting on 23.10.2003 is invalid, against the rules and bye-laws and, therefore, void ab initio and also sought perpetual injunction against other remaining trustees from holding that meeting. After that meeting was held and certain resolutions were passed the plaintiffs sought a declaration that the meting held on 23.10.2003 was illegal and void ab initio and as a result the resolutions passed therein could not be acted upon. As pointed out above, in the resolutions Nos. 2 and 3 of meeting dated 23.10.2003, the powers of the plaintiff No.1 as president were withdrawn and those powers were invested in the vice-president. The said meeting and the resolutions passed therein clearly relate to the management of the Trust. It cannot be said that the said meeting and the resolutions passed therein were 8 unconnected with the management of the Trust. By filing the suit, the plaintiffs were not trying to vindicate their civil rights unconnected with the management of the Trust and only against the trustees in their private capacity and not as board of trustees. If the facts of the present case are considered in their totality, it will be clear that the plaintiffs were seeking declaration and injunction against the trustees and the said declaration and injunction would be strictly connected to the management of the trust. The case is clearly covered under Section 50(iv)(p) referred above. If the language of clause (iv) is read, it becomes clear that if any declaration or injunction is sought in favour of or against a public trust or trustee or trustees, the suit is covered under Section 50 of the said Act. In the present case, the plaintiffs, who are themselves trustees, were seeking such declaration and injunction against the remaining trustees of the Trust. The language of clause (iv) does not show that consent of the Charity Commissioner is required for filing suit only if it is against the trust alone. Even if relief is not sought against the trust, still suit is covered under clause (iv) if the relief is sought for in favour of or against the trustees. Naturally, such declaration or injunction should be pertaining to the management or property of the trust and if anybody including the 9 trustees wants to file a suit for vindication of his civil rights unconnected with the management or property of the trust, he may file such a suit without prior consent, but as in the present case, the plaintiff sought declaration and injunction against the remaining trustees pertaining to certain resolutions passed by them as board of trustees, it must be said that the relief sought is in respect of and connected with the management of the trust. Therefore, it was necessary to obtain prior consent of the Charity Commissioner. Without prior consent, the suit is not tenable in view of the provisions of Sections 50 and 51 read with Section 80 which outsted the jurisdiction of the Civil Court unless it is expressly provided for in the Act. The Act provides that such a suit can be filed in Court but that has to be filed with prior consent of the Charity Commissioner. 6. In almost similar facts and circumstances in H.C.Patel (Prof) & Ors. vs. Kaushik Desai and H.C.Patel (Prof) & Ors. vs. Kaushik Desai and H.C.Patel (Prof) & Ors. vs. Kaushik Desai and another, 2006(1) Bom. C.R. 162, another, 2006(1) Bom. C.R. 162, another, 2006(1) Bom. C.R. 162, the learned Single Judge of this Court held that once a person is holding an office of a trust then any method by which his removal is sought would be hit by Section 50 of the said Act and suit is not maintainable without prior permission of the Charity Commissioner in view of the 10 provisions of Sections 50 and 51 of the said Act. 7. In Church of North India vs. Lavajibhai North India vs. Lavajibhai North India vs. Lavajibhai Ratanjibhai and others (2005) 10 SCC 760 Ratanjibhai and others (2005) 10 SCC 760 Ratanjibhai and others (2005) 10 SCC 760, the Supreme Court held that questions outside purview of Bombay Public Trusts Act or relating to matters unconnected with administration or possession of trust property are questions in respect of which civil court will have jurisdiction. It MEANS if the matters are connected with administration of the trust and trust property, the civil court will not have jurisdiction unless prior consent of the Charity Commissioner is obtained under Sections 50 and 51 of the Bombay Public Trusts Act. 8. Taking into consideration the facts and the reliefs sought by the plaintiffs, it must be held that the suit is not tenable without prior consent of the Charity Commissioner. 9. Therefore, the Appeal is hereby allowed. The impugned order passed by the trial Court is hereby set aside and it is declared that the suit is not tenable for want of prior consent of the Charity Commissioner. 11 (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)