1 946 wp 847.99.doc K IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 847 OF 1999 St.Josheph’s Home Society ..Petitioner. Vs. The Municipal Corporation of Greater Bombay & Ors. ..Respondents. Mr. S.C.Naidu i/b C.R.Naidu & Co. for Petitioner. Ms. Priti Purandare for Respondent. CORAM : D.K.DESHMUKH & K.K.TATED, JJ. DATED : 03/03/2011. PC: 1 This is a petition filed by “St. Josheph’s Home Society”. According to the averments in the Petition, the Petitioner-society runs St.Joseph’s High School in Bombay. The said school comprises of pre-primary, primary and secondary sections. By prayer clause (a) following relief is claimed: a) That this Hon’ble Court be pleased to issue Writ of Mandamus or in the nature of Mandamus or any other appropriate Writ, order or direction thereby directing the Respondents No.1 and 2 to 2 946 wp 847.99.doc immediately approve two additional posts in the category of peon in the Petitioner School and grant sanction/approval for totally four peons i.e. one regular peon and three additional peons for the primary section of the Petitioner and permit the Petitioner fill up the said post on regular basis: 2 The learned counsel appearing for the Petitioner states that the number of students in the school of the Petitioner is more than 700 and less than 1100. It is claimed that the school is entitled to Grant-in-Aid from the Corporation under its Grant- in-Aid Code. The Petitioner claims that because of the number of students the Petitioner is entitled to have total four posts of peons, however, the Corporation has not permitted. The learned counsel appearing for the Petitioner invited our attention to the circular dated 26th September, 1968. He also submitted that this circular is not in confirmity with Rule 45-A of the Grant-in-Aid Code. 3 By prayer clause (b) following relief has been claimed: “b) That this Hon’ble Court be pleased to issue Writ of Mandamus or in the nature of Mandamus or 3 946 wp 847.99.doc any other appropriate Writ, order or direction, directing the Respondent No.1, to take into account the present standard prevailing in the city of Mumbai, especially the number of students admitted per class, the syllabi and other requirement, and to refix the staff strength at various levels in exercise of powers conferred under Rule 45-A of the Grant-in-Aid Code;” 4 However, in the Petition we do not find any averments to show that the Petitioner has asked for sanction of any post other than that of peon and the Corporation refused to sanction. We also do not find any application made for that purpose. Therefore, at the outset it is clear that so far as relief claimed by prayer clause (b) is concerned, there is no material on record. So far as relief claimed by prayer clause (a) is concerned, the learned counsel appearing for the Petitioner relied on clause 45- A-(iv) of the Grand in Aid Code that reads as under: “Rule 45 – The Assessment of Ordinary Grants. A – While assessing the Grant-in-Aid in favour of school, the expenditure incurred by them on the following items will be considered as admissible:- 4 946 wp 847.99.doc (iv) Every school will be allowed one Peon irrespective of the number on rolls of the school. Additional peons will be allowed in accordance with the standards as may prevail in Municipal School or posting of peons. “ 5 The Corporation has issued the circular dated 26th September, 1968, following portion of the circular dealing with Peons which is relevant: “Expenditure on peons will be admitted as under: 1) Every school will be allowed one peon irrespective of the number on rolls of the school. 2) Expenditure on additional peons will be admitted on the following scale:- Average attendance in the school. Total No.of peons admissible. More than 300 pupils 2 More than 700 pupils 3 More than 100 pupils 4 The maximum number of peons admissible to any school will be four.” 5 946 wp 847.99.doc 6 Perusal of the circular shows that so far as clause-1 is concerned, it is a verbatic reproduction of first sentence of Rule 45 A-(iv). The circular further shows that every school is entitled to have one peon irrespective of strength of the students. But if the number of the students is more than 300 then the school is entitled to have 2 peons. If the strength of the students is more than 700 then the school is entitled to have 3 peons and if the number of the students is more than 1100 then the school is entitled to have 4 peons. This circular further lays down that the maximum number of peons admissible to any school shall be 4 peons. The submission of the learned counsel appearing for the Petitioner is that because clause 2 says: “Expenditure on additional Peons” The school is entitled to have 3 peons in addition to one peon, that it is entitled to have under clause-1. The learned counsel submits that if 3 peons in addition to 1 peon is not permitted then using of the words “expenditure on additional peons” will be meaningless. In our opinion, the submission is not well founded. The scheme appears to be that a school is entitled to have a peon though the number of students in that school may be less than 10 or anything up to 300. Once the 6 946 wp 847.99.doc number of students goes beyond 300, then one additional peon is permitted making the strength of the peon to two. In our opinion, following statement found in the circular makes the position clear: “The maximum number of peons admissible to any school will be four.” 7 When Rule 45 A-(iv) of Grand-in-Aid uses the term additional peons, it deals with peons who are to be appointed in addition to one peon when the school is entitled to have irrespective of the strength of students. For determining the number of peons, one peon who is permitted irrespective of the number of students is not to be excluded. We do not see any conflict between the circular and clause 45 A-(iv) of the Grant- in-Aid Code. In our opinion, therefore, the Petitioner is not entitled to the relief claimed by prayer clause (a). 8 We also find that the Petition as framed and filed is also not maintainable because according to the Petitioner-St. Josheph’s Home Society is a society registered under the Societies Registration Act, 1860. There is no provision in the Societies Registration Act, declaring a society registered under 7 946 wp 847.99.doc the Act to be a body corporate, so as to entitle the society to institute an action in its own name. We find that on the contrary there is a provision which indicates otherwise. Section 6 reads as under: “6. Every society registered under this Act may sue or be sued in the name of the president, chairman, or principal secretary, or trustees as shall be determined by the rules and regulations of the society, and in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion: Provided that it shall be competent for any person having a claim or demand against the society, to sue the president or chairman, or principal secretary or the trustees thereof, if on application to the governing body some other officer or person be not nominated to be the defendant.” 9 Perusal of the above quoted section shows that the society has for the enforcement of its rights to sue in the name of its office bearer, it cannot sue in its own name. Thus, the Petition as framed and filed is also not maintainable. The Petitioner has 8 946 wp 847.99.doc claimed that it is also Public Trust registered under the Bombay Public Trusts Act. According to the provisions of the Bombay Public Trusts Act, a Public Trust is not a body corporate. It is the Charity Commissioner, who is Corporation sole. Even the property of the Trust vests in the trustees. Therefore, neither as Society nor as Public Trust the Petition can be maintained in the name of the Society or the Trust. The learned counsel appearing for the Petitioner when this was pointed out to him submitted that he should be given time to amend the Petition to bring it in line with the provisions of section 6 of the Societies Registration Act. However, as we find that even otherwise there is no substance in the Petition on merits, we decline to grant time to the learned counsel. In the result, therefore, the Petition fails, rule is discharged. (D.K.Deshmukh, J.) (K.K.Tated, J.)