1 CRA96.2005 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL REVISION APPLICATION NO. 96 OF 2005 Sou. Vanita Rajan Dharkar and Ors. ... Applicants Versus Shri. Mukund Chimanlal Shah and Ors. .. Respondents Mr. Sachin Chavan holding for Mr. S.S. Kulkarni, Advocate for applicants. Mr. Rohan Surve holding for Mr. Madhav Jamdar, advocate for respondent nos. 7 to 11 and 15 to 20. CORAM : SMT. R.P. SONDURBALDOTA,J. DATED : OCTOBER 14, 2010 P.C. 1. This revision application takes exception to the order dated 30th August, 2004 passed by the Court of 2nd Civil Judge, Junior Division, Nashik on the preliminary issue of jurisdiction raised at the instance of the revision applicants. They are original defendants nos. 5,7,8,12,14,15,19,22, 24 to 27, 29 and 32. Respondents nos. 1 and 2 are the original plaintiffs. The remaining respondents are the other defendants to the suit. 2 CRA96.2005 2. Nashik Industries Manufacturers Association is a trust registered with Charity Commissioner, Mumbai under the Bombay Public Trust Act. The revision applicants, respondents nos. 1 and 2 and 4 and 20 are the members of the trust. Respondent no.1 and 2 filed Regular Civil Suit No. 364 of 2003 seeking a declaration that the annual election held for the year 2003-2004 is illegal because of defective voting procedure and that consequently respondents nos. 3 to 6 can not be declared as elected candidates to the Board of Managing Committee. The revision applicants filed the application at Exh. 69 raising preliminary issue of jurisdiction contending that in view of the provisions of section 22, 50 and 51 of Bombay Public Trust Act, 1950, the Civil Court has no jurisdiction to entertain the suit. It was contended by the revision applicants that the dispute raised in the suit by respondents nos. 1 and 2 was squarely covered by section 22 of the Bombay Public Trust Act, which dispute is required to be considered by the authority under the Act. As a consequence, section 80 of the Bombay Public Trust Act creates a bar to the 3 CRA96.2005 Civil Court entertaining such a dispute. The application was contested by respondent nos. 1 and 2. After hearing both the sides, the trial Court held : ".......... as the present suit has been filed against Executive Committee who has held the election in a manner not legal and there are allegations of manipulation by way of averments against the Executive Committee, who held the election. Ultimately, the present suit does not come within the ambit of sec. 22, 50, 51,80 of the Act of 1950 and it is not against the trustees, beneficiary even trust and I find that Civil Courts jurisdiction has not been expressly barred." 3. Notice of the revision application has been served upon respondents nos. 1 and 2, who are absent despite service. The revision application had been adjourned on a couple of occasion to enable these respondents to appear before the court. However, they have not availed of the opportunity. Therefore, I have heard the learned counsel for the revision applicants and Mr. Jamdar learned counsel for respondents 7 to 11, 13 to 20, who are supporting revision applicants. 4 CRA96.2005 4. Mr. Chavan, the learned counsel for the revision applicants submits that after the election was held for the members of the Managing Committee for the year 2003-2004, a change report had been filed in respect thereof with the Charity Commissioner. In the year 2004, the tenure of the Managing Committee came to be extended from one year to two years. Therefore, in the year 2004, election was held for the members of the Managing Committee for the period 2004-2006. Thereafter at the interval of every two years, elections have been regularly held and change reports in respect thereof filed. The learned counsel however, is not in a position to state today as regards the outcome of the change reports filed. In any case, since the suit merely challenges the election to the members of the Managing Committee for the year 2003-2004, with the holding of subsequent elections, the suit has really become infructuous. 5. In any case, even if the application is considered on its merits, it can be seen that the impugned order can not be sustained. 5 CRA96.2005 Prayer (a) of the plaint seeks a declaration that the annual election for the year 2003-2004 is illegal on account of faulty voting procedure. The other prayer sought in the plaint, which is consequential to the relief of declaration is of direction to defendant nos. 2 to 4, who are election officers, not to declare the result of the election and the elected body of Managing Committee. The learned counsel for the revision applicants states that there is no interim order passed in the suit relating to the elected managing committee. Any challenge to the change in the trust by way of change in the Managing Committee of the trust would be covered by section 22 of Bombay Public Trust Act, 1950 since, with the change in the constitution of the managing committee, entries recorded in respect thereof in the register kept under section 17 of the Bombay Public Trust Act, is required to be changed. The trustees of a registered charitable trust are required to report such change to the Deputy or Assistant Charity Commissioner within a period of 90 days from the date of occurrence of the change. The Assistant Charity Commissioner after considering the 6 CRA96.2005 objections, if any, to such a change, would allow a report and amend or delete the entries in the register under section 17. Section 80 of Bombay Public Trust Act bars jurisdiction of Civil Court to decide or deal with any question which is by or under Bombay Public Trust Act, is required to be decided or dealt with by any officer or any authority under the Act. Therefore, the suit herein is clearly barred by section 80 of the Bombay Public Trust Act, read with section 22 thereof. The observations of the learned trial Judge holding that the suit does not fall within the ambit of section 22 of the Act is not correct. Hence, the petition is allowed. The impugned judgment and order dated 30th August, 2004 passed by 2nd Jt. C.J.J.D. Nashik is set aside. The application at Exh., 69 is allowed. The suit is dismissed being barred by section 80 read with 22 of the Bombay Public Trust Act. (Smt. R.P. SondurBaldota,J.)