: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.524 OF 2004 FIRST APPEAL NO.524 OF 2004 FIRST APPEAL NO.524 OF 2004 Shridhar Ramdas Adhau & Ors. ...Appellants V/s. Sohanlal K. Jain, Deleted, . Kashiram S. Bodke & Ors. ...Respondents WITH WITH WITH FIRST APPEAL NO.647 OF 2004 FIRST APPEAL NO.647 OF 2004 FIRST APPEAL NO.647 OF 2004 Shridhar Ramdas Adhau & Ors. ...Appellants V/s. Rajaram V. Gundeti & Ors. ...Respondents Mr.Deepak S. Jadhav, Advocate, for the Appellants in both the Appeals. Ms.Gauri K. Jadhav, Advocate, for Respondent Nos.1 and 2 in First Appeal No.524 of 2004 and for the Respondent Nos.1 to 3 in First Appeal No.647 of 2004. Mr.Vikas Mali, Advocate, for Respondent No.3 in First Appeal No.524 of 2004. Mr.B.H. Mehta, learned AGP, for the Charity Commissioner in both the Appeals. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 28TH MARCH, 2008. DATE : 28TH MARCH, 2008. DATE : 28TH MARCH, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The submissions of the learned Counsel appearing for the parties were heard on the basis of substantial questions of law formulated in order dated 2nd September, 2004. : 2 : 2. These two Appeals can be disposed of by a common Judgment and Order as the dispute relates to the same change report filed before the learned Assistant Charity Commissioner, Greater Bombay, Bombay. The change report has been allegedly filed by the 1st respondent in F.A. No.524 of 2004. The said change report is filed on the basis of the alleged meeting of the general body of the trust in question i.e. Swatantryaveer Savarkar Hindu Education Trust held on 2nd October, 2001. According to the case made out in the said change report allegedly submitted by the 1st respondent, certain trustees of the said trust submitted resignation and in the alleged meeting held on 2nd October, 2001, five new trustees were appointed in place of earlier five trustees. Without issuing any notice on the said change report, the same was allowed by order dated 1st January, 2002 by the learned Assistant Charity Commissioner. There were two Appeals preferred by respondent Nos.1 and 2 before the learned Joint Charity Commissioner, Maharashtra State, for challenging the said order. 3. The Appeals were allowed and the order passed on 1st January, 2002 on the change report was set aside. There were applications under Section 72 of the Bombay Public Trusts Act, 1950 filed before the : 3 : City Civil Court. The said applications have been dismissed and, therefore, the present two Appeals. 4. The substantial questions of law formulated in order dated 2nd September, 2004 read thus:- "(i) Whether the Assistant Charity commissioner could have decided the Change Report without holding a proper inquiry in as much as this Court has repeatedly held that the change report proceedings are judicial proceedings ? (ii) Whether the learned Joint Charity Commissioner has overlooked the provisions of Rule 7 of the Bombay Public Trusts Rules, 1951 which provide that the inquires including inquiry under section 22 of the said Act of 1950 shall be held as far as possible in accordance with the procedure prescribed for the trial of the suit ? (iii) Whether the learned joint Charity commissioner and the learned Judge of the City Civil Court committed serious error by going into the merits of the Change Report when there was no inquiry held by the Assistant Charity Commissioner after giving opportunity to both parties to lead evidence ? (iv) whether the learned Joint Charity Commissioner and the learned Judge of the City Civil Court totally overlooked that the Change Report was also for recording resignations of alleged Trustees and decision on the said aspect required any inquiry to be held ? (v) Whether the learned Joint Charity Commissioner committed an error by : 4 : entertaining Appeal preferred under section 70 of the said Act of 1950 when the was Appeal was barred by limitation and no application was made for condonation of delay ?" 5. I have heard the learned Counsel appearing for the parties. The basic submission of the Advocate for the appellants is that the order passed on the change report could not have been set aside by the learned Joint Charity Commissioner. The submission is that the 1st respondent himself was a reporting trustee in the change report. Therefore, the challenge by way of an Appeal at his instance to order passed on his own change report could not have been entertained. His submission is that the Appeals preferred before the learned Joint Charity Commissioner were barred by limitation and there was no application made for condonation of delay. The learned Counsel for the contesting respondents submitted that the learned Joint Charity Commissioner as well as the learned Judge of the City Civil Court have considered the merits of the change report. It is the submission of the learned Counsel for the contesting respondents that the Courts have found that there could not have been election of new trustees which is contrary to the rules and regulations of the trust. It is submitted : 5 : that the 1st respondent has denied to have filed the change report and, therefore, no fault can be found with the order passed by the learned Joint Charity Commissioner. 6. I have carefully considered the submissions. It will be necessary to refer to the order passed by the learned Joint Charity Commissioner in the Appeals. One of the contentions raised before the Joint Charity Commissioner was that the 1st respondent has not submitted the change report and the same is false and fabricated. It was contended that the change alleged was contrary to the provisions of the trust deed of the trust. The learned Joint Charity Commissioner held that the learned Assistant Charity Commissioner decided the change report proceedings without notice to the concerned persons and in particular to the concerned respondents. The learned Joint Charity Commissioner held that as per the mode of succession provided by the trust deed, the appointment of the trustees should be made unanimously by all continuing trustees. Paragraph No.22 of the order dated 29th August, 2002 passed by the learned Joint Charity Commissioner reads thus:- "22. It is seen from the record and : 6 : proceeding in Change report No.ACC-III/6353/01, no notice and no opportunity was given to Shri Bordke and Shri Gundeti. I have already observed that both these are the persons directly affected because by the impugned Change report, the name of Shri Bodke is deleted. As per the mode of succession as provided by Trust Deed, the appointment of trustee or trustees should be made unanimously by all the continuing trustees, one Gundeti was a trustee at the relevant point of time is also interested person. Admittedly, he was not served with the notice and no opportunity was given to him. I have already observed that the Assistant Charity Commissioner has not recorded the statement of reporting trustee, there is no order sheet to show that he was asked to file affidavit. Further, it is seen from the impugned order and the record and proceeding that the Ld. Assistant Charity Commissioner did not take pain to see the mode of succession as provided by the trust deed. In view of this, I am of the opinion that the inquiry made by him is not in accordance with the Act and the provisions. Relying upon the aforesaid Authorities, I hold that the order is not legally sustainable, even taken that the change occurred for the aforesaid reason, it cannot be said that the same is legal and valid, in view of this, impugned order is liable to be set aside. Accordingly I answered the points and pass the following order." 7. While deciding the applications under Section 72 of the said Act of 1950, the learned Judge of the City Civil Court observed that the learned Assistant Charity Commissioner has not bothered to record the statement of the 1st respondent who had allegedly : 7 : filed the change report. It is observed that even the roznama of the proceedings was not maintained by the learned Assistant Charity Commissioner. It was observed that the respondent No.7 herein was not present in the meeting on the basis of which the change report was filed and, therefore, the appointment of new trustees cannot be treated as unanimous. In paragraph No.19 of the Judgment, the learned Judge of the City Civil Court has observed that the Assistant Charity Commissioner should have verified the facts by calling the 1st respondent. It is observed that there was no procedure for holding election under the instrument of the trust. Therefore, he proceeded to confirm the order of the learned Joint Charity Commissioner. 8. It must be stated here that the allegations made in the Appeal preferred by respondent Nos.1 and 2 before the Joint Charity Commissioner were very serious viz. the 1st respondent has not signed and submitted the change report and the same is false and fabricated. The inquiry contemplated on the change report is an inquiry of judicial nature. The learned Joint Charity Commissioner and the learned Judge of the City Civil Court are right in holding that there is no inquiry held by the Assistant Charity : 8 : Commissioner in accordance with the provisions of the said Act of 1950 and rules framed thereunder. It was found that the notices were not issued of the change report to the affected parties and principles of natural justice were not complied with. In my view, the only option open for the learned Joint Charity commissioner and the learned Judge of the City Civil Court was to pass an order of remand to the Assistant Charity Commissioner directing him to hold an inquiry in accordance with law. When allegation was that the change report was fabricated, the nature of the said allegation warranted an inquiry to be held by the Assistant Charity Commissioner by giving opportunity to all concerned parties to lead evidence. 9. When the change report was decided without following the requisite procedure and in breach of principles of natural justice, Courts below should not have embarked upon an inquiry on the basis of merits of the change report. The Courts below ought to have remanded the change report. 10. There is a clause in the deed of trust which authorises the board of trustees to appoint any person as a trustee of the said trust. The said power is found in sub-clause (J) of clause 13 of the instrument : 9 : of the trust. Without there being any evidence on record, the Courts below have gone into the question as to whether the alleged appointment of the trustees was made by election or by nomination and whether the appointment can be considered to be unanimous. Whether a particular trustee was present in the meeting or not and what is the consequence of his absence are the questions which could have been determined only after an inquiry was held by the learned Assistant Charity Commissioner after giving an opportunity to the parties to lead evidence. 11. There is another aspect of the matter. When an allegation was made that the change report purportedly filed by the 1st respondent was not even signed by him, this serious allegation itself called for an inquiry. If after giving an opportunity to the parties to lead evidence and after holding an inquiry, it is found that the change report was fabricated, the legal consequences will have to follow. 12. In my view, both the learned Joint Charity Commissioner and the learned Judge of the City Civil Court have committed gross error by adverting to merits of the controversy involved in the change report instead of passing an order of remand. : 10 : 13. Hence, I pass the following order :- "O R D E R" "O R D E R" "O R D E R" (a). The impugned Judgments and Orders passed by the learned Joint Charity Commissioner and the learned Judge of the City Civil Court are quashed and set aside. (b). The change report No.ACC-III/6353/01 is restored to the file of the learned Assistant Charity Commissioner. (c). The learned Assistant Charity Commissioner will issue notice of the change report to all concerned parties and will decide the change report afresh after giving an opportunity to the parties to adduce evidence. (d). All contentions of the parties on the merits of the change report are expressly kept open. (e). The parties to the Appeal are directed : 11 : to appear before the concerned Assistant Charity Commissioner on 2nd May, 2008 at 11:00 a.m. for fixing the schedule of hearing of the change report. (f). The change report proceedings shall be disposed of as expeditiously as possible and preferably within a period of four months from the date of receipt of writ of this order. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]