1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.751 OF 2009 Shersingh s/o Hirasingh Fauji, aged: 71 years, Occ: Business, R/o Badpura, Near Bhagatsingh Road, Nanded, District Nanded. Appellant Versus 1 Sardar Jeewansingh s/o Ayasingh Sahoo, through his L.R. Gurucharansingh s/o Uttamsingh Ghadizaj, aged: 60 years, Occ: Pensioner and social work, R/o Kumbhar Galli, Gurudwara, Nanded, District Nanded. 2 Mohansingh s/o Darbarasingh Madadgar, adult, Occ: Business, R/o Gurudwara Gate No.2, Nanded. 3 Rachpalsingh @ Kalisingh s/o Bhujangsingh Gadiwale, adult, Occ: Business, R/o Badpura, Nanded, District Nanded. 4 Mohansingh s/o Bhujangsingh Gadiwale, adult, Occ: Business, R/o Badpura, Nanded. 5 Sardar Indrajeetsingh Galliwale, adult, Occ: Business, R/o Badpura, Nanded. Respondents Mr.A.G.Godhamgaonkar, advocate for the appellant. Mr.Rajendra Deshmukh, advocate for Respondent No.1. Respondents No.2 to 5 served. WITH 2 SECOND APPEAL NO.752 OF 2009 Shersingh s/o Hirasingh Fauji, aged: 71 years, Occ: Business, R/o Badpura, Near Bhagatsingh Road, Nanded, District Nanded. Appellant Versus 1 Sardar Jeewansingh s/o Ayasingh Sahoo, through his L.R. Gurucharansingh s/o Uttamsingh Ghadizaj, aged: 60 years, Occ: Pensioner and social work, R/o Kumbhar Galli, Gurudwara, Nanded, District Nanded. 2 Mohansingh s/o Darbarasingh Madadgar, adult, Occ: Business, R/o Gurudwara Gate No.2, Nanded. 3 Rachpalsingh @ Kalisingh s/o Bhujangsingh Gadiwale, adult, Occ: Business, R/o Badpura, Nanded, District Nanded. 4 Mohansingh s/o Bhujangsingh Gadiwale, adult, Occ: Business, R/o Badpura, Nanded. 5 Sardar Indrajeetsingh Galliwale, adult, Occ: Business, R/o Badpura, Nanded. Respondents Mr.A.G.Godhamgaonkar, advocate for the appellant. Mr.Rajendra Deshmukh, advocate for Respondent No.1. Respondents No.2 to 5 served. CORAM: R.M.BORDE, J. Reserved on: : 10 th February, 2010 Pronounced on: 07 th May, 2010. 3 JUDGMENT: 1 Appellants herein are raising exception to the order passed by District Judge-2, Nanded on 03.10.2009 in appeals RJE No.38/2007 and 68/2007, respectively. 2 The facts, giving rise to the dispute, can be narrated in nutshell, as below: A Society, having membership amongst persons from Sikh community with religious and charitable object, came to be registered in the name and style “Sachkhanda Huzuri Khalsa Diwan, Nanded (herein after referred to as “Diwan”) as per the provisions of Hyderabad Registration of Societies Act, 1350 Fasli. The Act for administration of Nanded Sikh Gurudwara, namely “Shri Huzur Apchal Nagar Sahib” came to be passed in the year 1956. A board for administration of Sikh Gurudwara came to be incorporated under the provisions of Nanded Sikh Gurudwara Act. Four members belonging to Diwan are required to be taken on board constituted under the provisions of Nanded Gurudwara Act. So far as Diwan is concerned, although it was registered under the provisions of Hyderabad Registration of Societies Act, it was not registered as Public Trust under the provisions of Bombay Public Trusts Act, 1950 and as such, an application came to be tendered by one Jeevansingh Ayasingh for purposes of registration of Diwan as a Trust. The application was numbered as Inquiry No. 950 of 1981. On consideration of application, the Trust has been directed to be registered since January 11, 1982. A list of 28 members’ Working Committee was submitted along with application by Jeevansingh claiming them to be the trustees of the Diwan. A Notification, in that regard, was 4 published on 7 th May 1984 in Government Gazette as regards constitution of the board. Four members of Diwan were adopted as members of the board constituted under the provisions of Nanded Gurudwara Act. One objection petition came to be lodged by Shersingh Hirasingh which was registered as Revision Application No.18/1984 raising exception to the order of registration. It was contended that one Bhujangsingh was Pradhan of Diwan and was the governing head of Diwan. According to Shersing, applicant Jeevansingh and others do not constitute a legally elected working body of Diwan and as such they had no authority to nominate anybody on the board. It was claimed that Revision Petitioner i.e. Shersingh and others are entitled for seeking registration of the Trust. 3 On 14 th January 1985, the Joint Charity Commissioner allowed Revision Applications and remanded back the inquiry to the Assistant Charity Commissioner with a direction to issue public notice as contemplated by Rule 7A of Bombay Public Trusts Act and after extending fresh opportunity of hearing to the parties concerned, proceed to decide the matter. So far as finding on the issue, as to whether the Trust exists and whether such Trust is a public Trust, came to be kept intact meaning thereby the finding in respect of existence of the Trust and Trust being a public trust has attained finality. Applicant Jeevansingh and others preferred appeal against said order to the District Court, which was numbered as RJE 14 of 1985. The appeal came to be dismissed on 16.11.2000. Against said order, a writ petition was preferred to this Court, however, this Court has also not caused interference and disposed of the petition on 27 th February 2001. 4 After remittance of the matter back to the Assistant Charity Commissioner, notices were published, as directed and objections were 5 received. There were objections by Shersingh at Exhibit-65. Objections were also received from Rachpalsingh Sahu, Mohansingh Bhujan Singh, Indrajitsingh Galliwale and those were marked as Exhibits-68, 70 and 72, respectively. One Mohansingh Madadgar and others also filed objection, which was marked as Exhibit-127. It transpires that during pendency of proceedings, applicant Jeevansingh died and Gurucharainsingh was permitted to prosecute the matter as an applicant. He claimed himself to be the Pradhan of Diwan. As stated earlier, objection petitioner Shersingh had also presented separate application for registration of Diwan, being Inquiry No.226/2001. According to Shersingh, applicant Jeevansingh had no locus standi to submit application for registration of Diwan. According to him, in the year 1979, one Bhujangsingh was the Pradhan of Diwan and Amarsingh Bungai was the Secretary. The office bearers of Diwan held election in the year 1979. One Sundersingh was appointed as Election Officer to conduct elections wherein Bhujangsingh was elected as Pradhan. However, Change Report, to that effect, was not presented. But the fact remains that Bhujangsingh was Pradhan of Diwan. The objection petitioner, as such, presented a separate application for registration of the Trust. There were also objections raised by Rajpalsingh, Mohansingh Madadgar and others. 5 Applicant Gurucharansingh filed his Say to all the objections at Exhibit-101. According to him, first legal working committee was formed under Presidentship of S. Bedi Jaisingh. Said working committee was in the office since 1956 to 1958. Thereafter functions of Diwan were administered under the Vice Presidentship of Amarsingh Sahu until year 1978. According to applicant, although Bhujangsingh and Amarsingh were never members of Diwan, they pretended constitution of working committee in the year 1962, however, said Committee was never managing the affairs of Diwan. It is 6 contended that in the year 1978, the Joint Secretary, on demise of Chandasingh, who was Secretary of Diwan, convened the meeting of general committee on April 13, 1978 and in that meeting, an ad hoc committee was formed for holding elections to the working committee. A meeting was convened on July 4, 1978, wherein it was decided to call meeting of general body on 10 th August, 1978. Notice of the meeting was duly published in the news papers and copies were affixed on Gurudwara gate. It is contended, on 10 th August 1978, meeting of general committee was held in Gurudwara premises under the Presidentship of Shri Guru Granth Sahib. In the meeting Jeevansingh was elected as Pradhan of Diwan. Thus, applicant contends that considering sequence of events stated above, the application tendered by him for registration of trust be considered and Committee formed under the Presidentship of Jeevansingh be declared as trustees of Diwan. 6 On consideration of rival contentions raised by parties, the Assistant Charity Commissioner framed issues. Answer to the issue, as to whether property shown in the application is the property of trust and what is the estimated value of movable and immovable property, is answered in negative by the Assistant Charity Commissioner. The issue, as to what is the gross average annual income and expenditure of the trust is answered as Nil. The Assistant Charity Commissioner also held that there is no scheme relating to the Trust. So far as particulars of title deeds pertaining to the Trust property and names of the trustees in possession thereof, is also answered in negative by the Assistant Charity Commissioner. The Assistant Charity Commissioner, as such, while allowing the application partly, for registration tendered by Jeevansingh, directed return of Registration Certificate. It was also directed by the Assistant Charity Commissioner that same be handed over to the new 7 trustees, if appointed as provided under Section 47 of the Bombay Public Trusts Act, 1950. In the judgment, it is observed by the Assistant Charity Commissioner that applicant Jeevansingh and others cannot claim themselves to be trustees merely because they have submitted application for registration of the trust. The case put up by Shersingh also did not find favour with the Assistant Charity Commissioner. The Assistant Charity Commissioner, thus, held that posts of trustees of Diwan are vacant. The property in possession of applicants i.e. Jeevansingh and others and objection petitioners claiming to be trustees of Diwan is their own property. The Assistant Charity Commissioner held that Diwan has no property at all. It is also further observed by the Assistant Charity Commissioner that as the Trust had already been registered, new application for registration of the Trust does not require consideration. 7 The order passed by Assistant Charity Commissioner was matter of challenge in appeals presented before the Joint Charity Commissioner, Aurangabad Region, Aurangabad. The appeal preferred by applicant Jeevansingh and others was registered as Inquiry No.17/2006, whereas appeal presented by Shersingh and others is registered as Inquiry Application No.23/2006. In both the appeals, findings recorded by the Assistant Charity Commissioner in respect of Issue Nos.2, 4, 7 and 11 to 14 are subjected to challenge by appellants. The main issues, those are contested by both the parties, are as regards names and addresses of the trustees and Managers of the trust, who are entitled to represent the Diwan, the issue as regards property belonging to the trust and with whom the property vests, so also matters relating to average annual income and expenditure of the trust, particulars of encumbrances, if any, on the trust property, particulars of claim, if any, relating to the trust and particulars of title deeds pertaining to the trust 8 property and names of the trustees in possession thereof. 8 The issue that is debated is as to who are the trustees of Diwan and who are legally entitled to represent the Diwan. The issue as regards property belonging to Diwan assumes importance for the reason that person in possession of the property belonging to the trust can be considered as trustee of the trust and as such, the question relating to vesting of the property in trustee assumes importance. 9 The appellate Court, on consideration of rival contentions raised by the parties. Recorded a finding that the property shown in the application tendered by Jeevansingh is movable property of the Trust and estimated value thereof is Rs.2000/-. That, so far as names and addresses of trustees and managers of the Trust is concerned, the Joint Charity Commissioner held that Bhujangsingh Ratansingh and 27 others, whose names are submitted along letter dated 03.10.1962 in Inquiry File No.22/1951 and whoever are alive on the date of application - Inquiry No.950/1981, are the trustees of the Trust. The Joint Charity Commissioner also held that gross average annual income and expenditure is Rs.6000/-. While allowing the appeal, the Joint Charity Commissioner set aside findings on Points No.2, 4, 7, 12 and 13 recorded by the Assistant Charity Commissioner. Appeal No. 23/2006, presented by Shersingh and others, came to be dismissed, whereas, prayers made in Appeal No.17/2006 in respect of conferment of status of trusteeship on them has also been turned down by the Joint Charity Commissioner. The Joint Charity Commissioner directed inquiry as contemplated by Section 41A of Bombay Public Trusts Act for better management and administration of Diwan as a public trust. It was further observed in paragraph 36 of the judgment that since there is no clear and 9 concrete material and evidence regarding actual membership of Diwan, a detailed direction would be necessary for appointing an Election Officer giving them responsibility to prepare a list of valid members and further directing them to conduct elections afresh for electing Pradhan of Diwan. The Pradhan is required to take steps for constituting a working committee and thereafter for preparing more suitable and perfect scheme for the Diwan by suggesting proper and appropriate amendment. 10 The order passed by Joint Charity Commissioner in appeal was subjected to challenge in Misc. RJE No.38/2007 by Sardar Jeevansingh through his L.R. Gurucharansingh, whereas, said order has also been challenged by Shersingh Hirasingh in Misc. RJE No.68/2007. Learned District Judge, while dealing with applications, has recorded a finding on issue, as to whether names of trustees, who were shown in the original application in Inquiry No.950/1981 submitted by Jeevansingh are / were the trustees of the trust, in the affirmative. It has also been recorded by District Court that appellant in RJE No.38/2007 i.e. Jeevansingh through L.R. Gurucharansingh be held as Pradhan of the trust and rest of the persons as trustees of the trust. The order passed by Joint Charity Commissioner was accordingly directed to be substituted by directions, findings and observations made by District Court. The orders passed by District Court in appeals presented by respective parties are subjected to challenge at the instance of Shersingh and others in both these appeals. 11 On consideration of reasons recorded by learned District Judge while dealing with the appeals and on consideration of contentions raised by both the parties, substantial question of law, that arises for consideration, is: 10 whether judgment and order passed by learned District Judge is in conformity with principles laid down by the Apex Court in the matter of Santosh Hazari Vs. Purushottam Tiwari, reported in (2001) 3 SCC 179. Admit. Appeals are taken up for final hearing forthwith by consent of learned Counsel for respective parties. 12 Learned Counsel appearing for appellant raised issue in respect of maintainability of fresh application at the instance of applicants Sardar Jeevansingh and others and questioned their locus standi to present the application. It is contended that since it is concluded in the first round of litigation that Diwan is public trust, there was no occasion for presentation of application at the instance of original applicants / respondents herein seeking fresh registration. It is contended that, as contemplated by Section 18 of the Act, it is duty of the trustees of public trust to make an application for registration of public trust. Since the respondents / applicants cannot be termed as trustees of the Trust, the application tendered at their behest is not entertainable. It is also contended that in view of Section 18(4) of the Act, the application has also to be tendered within three months from the date of application of the Act in case of a public trust already exists; and in case of a public trust created after enforcement of the Act, within three months of its creation. It is, thus, contended that application at belated stage is not entertainable. It is also contended that the inquiry, as contemplated by Section 19 is for the purpose as to whether public trust exists and whether trust is a public trust and as to whether any property is the property of such trust. 13 According to learned Counsel appearing for the appellant, 11 application tendered by respondents, who cannot be termed as trustees of the trust, is not entertainable and secondly, application, being tendered much after creation of the trust, same is not entertainable. It is contended that the application is treated as a Change Report under Section 22 of the Act by the authority and the orders are passed thereon, which is not the scope of instant inquiry. It is also contended by appellants that appellants and others are true representatives of the trust. Appellant Shersingh is, thus, entitled to make an application seeking registration, as appellants and others only can claim themselves to be trustees of the Trust. The District Court has committed an error in recognizing respondents and others as persons entitled to represent the Trust. According to appellants, Jeevansingh or his legal representative cannot be held as Pradhan of Diwan and other persons as trustees of the Trust and the finding recorded by District Court, in that behalf, is perverse. It is contended that there are absolutely no reasons recorded while reversing the finding by District Court. The Joint Charity Commissioner had set out detailed reasons while rejecting case put up by respondents Jeevansingh and others and appellate Court has not at all considered the circumstances which persuaded the Joint Charity Commissioner to hold against the case put up by respondents Jeevansingh and others. 14 While criticizing the judgment, it is pointed out that appellate Court has devoted almost all the paragraphs commencing from paragraph no.44 up to paragraph no.76 only in recording details of the proceedings. Learned District Judge has quoted extensively from documents and record presented by parties to the proceedings as well as extracts from judgments and orders passed by Joint Charity Commissioner and Assistant Charity Commissioner. In paragraph no.73 of the judgment, learned District Judge has recorded that he does not agree with the view adopted by Joint Charity 12 Commissioner and further proceeded to record that appellant Gurucharansingh, who stepped into shoes of Jeevansingh, is the trustee of Trust i.e. Pradhan of Diwan and names of the persons, whose names are shown in original application in Inquiry No.950/1981, are the trustees of the trust. However, surprisingly, in paragraph no.73 of the judgment, there are absolutely no reasons noted for reversing the finding recorded by Joint Charity Commissioner or Assistant Charity Commissioner. It is, thus, contended that judgment of District Court is not a judgment in the eye of law, as there are no reasons set out while reversing findings recorded by authorities below. 15 Learned Counsel appearing for respondents has, however, supported judgment delivered by District Court. It is vehemently contended by learned Counsel appearing for respondents that movable property belonging to the trust is in the custody of respondents. They have domain over the property, which is held to be the property belonging to the Trust and as such, they are trustees of Diwan. It is contended that finding recorded by Joint Charity Commissioner to the effect that movable property belonging to the trust is in the custody of applicant Jeevansingh, is required to be taken into account and necessary inference is required to be drawn that the persons having domain over the property are trustees of the trust. It is, thus, contended that appeal presented by appellant does not merit any consideration and same is liable to be dismissed. 16 At the outset, it is to be taken note that the finding recorded earlier as regards existence of the trust and further as to whether such trust is a public trust, has attained finality. Thus there can be no dual opinion as regards existence of Diwan as a Trust and Diwan being a public trust. “public 13 trust” is defined in sub-section (13) of Section 2 of the Act, thus: (13)“public trust” means an express or constructive trust for either a public religious or charitable purpose or both and includes a temple, a math, a wakf, church, synagogue, agiary or other place of public religious worship, a dharmada or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the Societies Registration Act, 1860; “trustee” is defined in sub-section (18) of Section 12, thus: (18) “trustee” means a person in whom either alone or in association with other persons, the trust property is vested includes a manager: Other relevant definitions for consideration of the matter include “manager” as defined in sub-section (8) of section 2, which read thus: (8) “manager” means any person (other than a trustee) who for the time being either alone or in association with some other person or persons administers the trust property of any public trust and includes- (a) in the case of a math, the head of such math; (b) in the case of awakf, a mutawalli of such wakf; (c) in the case of a society registered under the Societies Registration Act, 1860, its governing body, whether or not the property of the society is vested in a trustee; and “person having interest” is defined in sub-section (1) of 14 section 2, thus: (10)“person having interest” includes- (a) in the case of a temple, person who is entitled to attend at 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 that habit of partaking in the distribution of gifts thereof, (b) in the case of a math, a disciple of the math or a person of the religious persuasion to which the math belongs, (c) in the case of a wakf, a person who is entitled to receive any pecuniary or other benefit from the wakf and includes a person who has right to worship or to perform any religious rite in a mosque, idgah, imambara, dargah, maqbara or other religious institution connected with the wakf or to participate in any religious or charitable institution under the wakf; (d) in the case of a society registered under the Societies Registration Act, 1860, any member of such society, and (e) in the case of any other public trust, any trustee or beneficiary. 17 Referring to sub-section (10) of section 2, It is contended that any person having interest can tender an application for registration of a public trust. It is contended that Diwan was earlier registered under the provisions of Hyderabad Registration of Societies Act, 1350 Fasli and in view of provisions of Societies Registration Act, Diwan is deemed to be registered as a society. Sub-section (13) of section 2 of Bombay Public Trusts Act, which defines “public trust”, includes, a society formed either for religious or charitable purpose or for both and registered under Societies Registration Act, 1960. Thus, Diwan, being a society registered under the provisions of Hyderabad Societies Registration Act, 1350 Fasli, is deemed to be a society, 15 as defined under the provisions of Societies Registration Act and by virtue of provisions of section 2 of Bombay Public Trusts Act, same is also a public trust. 18 So far as other objection regarding tendering application for purposes of registration of the trust is concerned, although it is contended by learned Counsel appearing for appellant that the application needs to be tendered by trustees of public trust and within the period prescribed under sub-section (4) of Section 18, provisions of Section 19 of the Act, also cannot be lost sight of. The Charity authorities can enter upon an inquiry in respect of registration either on receipt of application under Section 18 or upon an application made by any person having interest in the public trust or on his own motion. Thus, the application presented by applicants i.e. Jeevansingh and others, even if objections raised by appellant Shersingh and others is taken into account to the effect that their status being doubtful, the application cannot be entertained, still the fact remains that a person having interest in the public trust can maintain an application, so also, authorities on their own motion can embark upon an inquiry. Thus, there cannot be any impediment as contended by learned Counsel for appellants for entertaining application tendered by applicants. Another aspect also cannot be lost sight of is that the appellants also had tendered an application seeking registration of the trust at their instance claiming themselves to be trustees of the trust. Thus, there is