1 S.A.NO.245 /2009. IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. SECOND APPEAL NO.245 OF 2009. Vithal Laxman Atre Age 70 years, Occ: Retd., R/o Aaraldhana State Bank Colony, Bhutkarwadi, Savedi, Dist.Ahmednagar. ...Appellant. (Ori.Plaintiff.) VERSUS 1. Shri Datta Deosthan Trust Registered Public Trust-A-711 Vedant Nagar, Savedi, Ahmednagar. 2. Sanjay Shivaji Kshirsagar, Age: 45 years, Occ: Advocate, R/o.C/o.Datta Deosthan Trust, Vedant Nagar, Savedi, Ahmednagar. 3. Shrikant Nagesh Dharmadhikari, Age: 65 years, Occ: Retired, R/o Laxmi Niwas, Savedi Bus Stand, Savedi Road, Ahmednagar. 4. Vilas Vinayak Dange, Age: 62 years, Occ.Pensioner, R/o B-19 Chandrawadan Society, Ganeshwadi, Panchpakadi, Thane, 400 705. 5. Shrikant Digambar Kawathekar, Age:59 years, Occ: Pensioner, R/o Utkarsha, Shreya Nagar, Aurangabad. 2 S.A.NO.245 /2009. 6. Sudhir Vinayak Kshirsagar, Age: 44 years, Occ: Service, R/o Gurukrupa Bungalow Mangala Housing Society, Gulmohor road, Savedi, Ahmednagar. 7. Milind Govind Kshirsagar, Age: 40 years, Occ: Service, R/o Sanmana Apartment, Gaikwad, Colony, Savedi, Ahmednagar. 8. Shrirang Gangadhar Jeste, Age 70 years, Occ.Nil, R/o A-9, Poorwa Society, Ambika Nagar, Manpada Road, Dopmbiwaali (E). 9. Sudhir Ramchandra Mali, Age: 55 years, Occ.Service, R/o 39-B, Suman, Mahabal Society, Jalgaon, 424002. 10. Vinod Purushottam Namjoshi, Age: 60 years, Occ.Business, R/o 1/4 Chandralok Nagar, Dhanukar Colony, Kothrud, Pune-411 038. ...Respondents. (Ori.Defendants.) ... Mr.S.V.Gangapurwala, Advocate for the appellant. Mr.S.V.Natu, Advocate for respondent Nos.1 to 3, and 5. Mr.Sandeep S.Deshmukh, Advocate for respondent Nos.8 to 10. ... 3 S.A.NO.245 /2009. CORAM: A.V.NIRGUDE,J. Date : 1st September, 2009. ORAL JUDGMENT: 1. The appellant is the original plaintiff who had filed Regular Civil Suit No.523/2008 against the respondent for declaration that the resolution dated 10th January, 2008 passed by the Board of trustees of the respondent No.1 trust is not truthful, nor legal and not binding on the appellant and for perpetual injunction to prevent the other respondents, the members of Board of trustees from obstructing the appellant from participating in the meeting of the trust. 2. The defendants appeared and submitted an application challenging the jurisdiction and sought decision on the issue as a preliminary issue. 3. After hearing both the sides, the learned Judge of the trial Court on 19th December, 2008 held that the suit was barred by Section 80 of the Bombay Public Trust Act, 1950 ( hereinafter referred to as, "the Trust Act") and rejected the plaint. Even, the first Appellate Court reiterated the finding while dismissing the appellant's first appeal. 4 S.A.NO.245 /2009. 4. Mr.Gangapurwala, learned Advocate appearing for the appellant, asserted that the Civil Suit was maintainable as the appellant's civil rights as trustee was being violated. He placed reliance on the judgment of our High Court, in the case of Kedar Shivkumar Kale V/s Digambar Shridhar Mhapsekar and others 2007(4) Mh.L.J. 77. 5. The facts of the reported case are quite similar. It was the case of the plaintiff there, that he was illegally removed as Chairman of the Management Council of the Education Society, and so he filed suit for vindicating his civil rights. Placing reliance on a previous judgment of our High Court, the learned Single Judge of our High Court held that the suit was maintainable and was not barred by Section 80 of the Trust Act. 6. As against this, the learned Advocate appearing for the respondents placed reliance on Sections 22 and 80 of the trust Act, and the judgment of Supreme Court in the case of Church of North India V/s Lavajibhai Ratanjibhai and others (2005) 10 SCC 760. 7. In order to appreciate the rival contentions, one could not lose sight of the fact that the respondent is a religious and charitable trust. 5 S.A.NO.245 /2009. It is a temple for management of which a public trust is established. This public trust has certain scheme by the provisions of which the trustees of the trust manage the day today affairs of the trust. It is an admitted fact that the appellant, as well as the respondents No.2 to 10 are trustees. It so happened that the respondents No.2 to 10 alleged that the appellant remained absent on 4 consecutive meetings of the trusts and thereby incurred disqualification for being a trustee. Accordingly, allegedly they passed the impugned resolution of removal of the appellant from the post of the trustee. 8. In this background, following provisions of the B.P. trust Act, must be read: Section 22. Change. (1) Where any change occurs in any of the entries recorded in the register kept under section 17, the trustee shall, within 90 days from the date of the occurrence of such change, or where any change is desired in such entries in the interest of the administration of such public trust, report such change or proposed change to the Deputy or Assistant Charity Commissioner in charge of the Public Trusts Registration Office where the register is kept. Such report shall be made in the prescribed form. (1A) Where the change to be reported 6 S.A.NO.245 /2009. under sub-section (1) relates to any immovable property, the trustee shall, along with the report, furnish a memorandum in the prescribed form containing the particulars (including the name and description of the public trust) relating to any change in the immovable property of such public trust, for forwarding it to the Sub- Registrar referred to in sub-section (7) of section 18. Such memorandum shall be signed and verified in the prescribed manner by the trustee or his agent specially authorised by him in this behalf.) (2) For the purpose of verifying the correctness of the entries in the register kept under section 17 or ascertaining whether any change has occurred in any of the particulars recorded in the register, the Deputy or Assistant Charity Commissioner may (hold an inquiry in the prescribed manner.) (3) If the Deputy or Assistant Charity Commissioner, as the case may be, after receiving a report under sub-section (1) and holding an inquiry, if necessary under sub-section (2), or merely after holding an inquiry under the said sub-section (2), is satisfied that a change has occurred in any of the entries recorded in the register kept under section 17 in regard to a particular public trust, (or that the trust should be removed from the register by reason of the change, resulting in both the office of the administration of the trust and the whole of the trust property ceasing to be situated in the State), he shall record a finding with the reasons 7 S.A.NO.245 /2009. therefor (to that effect; and if he is not so satisfied, he shall record a finding with reasons therefor accordingly). (Any such finding) shall be appeal able to the Charity Commissioner. The Deputy or Assistant Charity Commissioner shall (amend or delete the entries) in the said register (in accordance with the finding which requires an amendment or deletion of entries) and if appeals (or applications) were made against such finding, in accordance with the final decision of the competent authority provided by this Act. The amendments in the entries so made ( subject to any further amendment on occurrence of a change or any cancellation of entries, shall) be final and conclusive. (4) Whenever an entry is amended (or the trust is removed from the register) under sub-section (3), the Deputy or Assistant Charity Commissioner, as the case may be, shall forward the memorandum furnished to him under sub- section (1A), after certifying the amended entry ( or the removal of the trust from the register) to the Sub- Registrar referred to in sub-section (7) or section 18, (for the purpose of filing in Book No.1 under section 89 of the Indian Registration Act, 1908, in its application to the State of Maharashtra). Section 22A. Further inquiry by Deputy or Assistant Charity Commissioner. . If at any time after the entries are made in the register under section 21, (22 or 28 it appears to the Deputy or Assistant Charity Commissioner that any particular relating to any public 8 S.A.NO.245 /2009. trust, which was not the subject-matter of the inquiry under section 19, or sub-section (3) of) section 22 ( or section 28), as the case may be, has remained to be enquired into, the Deputy or Assistant Charity Commissioner, as the case may be, may make, further inquiry in the prescribed manner, record his findings and make entries in the register in accordance with the decision arrived at or if appeals or applications are made as provided by this Act, in accordance with the decision of the competent authority provided by this Act. The provisions of sections 19, 20, 21 and 22 shall, so far as may be, apply to the inquiry, the recording of findings and the making of entries in the register under this section.) Section 80. Bar of Jurisdiction. Save as expressly provided in this Act, no Civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealt with by any officer or authority under this Act ( and in respect of ) which the decision or order of such officer or authority has been made final and conclusive." 9. The procedure laid down under Section 22 and 22-A of the trust Act, for reporting a change to be effected in the entries recorded in the register of the Charity Commissioner. Since the respondent Nos.2 to 10 desired to effect the change by removing the name of the appellant as 9 S.A.NO.245 /2009. trustee from the register maintained by the Assistant Charity Commissioner under Section 17. It was for them to move an application under Section 22 of the trust Act. I am told that they have made such an application and the same is pending adjudication. Section 22 of the trust Act, provides for a complete machinery for the Board of Trustees to put forward their case for change before the Asst. Charity Commissioner, who is competent to go into the question as to whether the change is lawful. There is even a provision for appeal, if a party is aggrieved by the decision of the Charity Commissioner. The bar of jurisdiction created by Section 80 of the trust Act, clearly lays down a rule that an aggrieved party cannot maintain a civil suit so as to avoid the rigors of inquiry contemplated under Section 22 of the trust Act. 10. The Supreme Court in the case of Church of North India V/s Lavajibhai Ratanjibhai and others (supra) examined this very aspect of Section 80 and the other provisions of the Bombay Public Trust Act, in detail. The Supreme Court was examining, as to whether, a civil suit seeking certain reliefs in respect of a Public Charitable Trust registered under the trust Act, was maintainable. The Supreme Court analysed the provisions of the Act and noticed the statutory scheme of the Act. The Supreme Court 10 S.A.NO.245 /2009. specifically took into account the provisions of Section 26 of the Trust Act, which reads as under: Section 26. Entries in register to be made or amended in certain cases: (1) Any Court of competent jurisdiction deciding any question relating to any public trust which by or under the provisions of this Act is not expressly or impliedly barred from deciding shall cause, copy of such decision to be sent to the Charity Commissioner and the Charity Commissioner shall cause the entries in the register kept under section 17 to be made or amended in regard to such public trust in accordance with such decision. (The entries so made or amended) shall not be altered except in cases where such decision has been varied in appeal or revision by a court of competent jurisdiction. Subject to such alterations, the (entries made or amended) shall be final and conclusive. (2) Where the Charity Commissioner decides any question in relation to 11 S.A.NO.245 /2009. any public trust or passes any order in relation thereto, he shall also cause the entries in such register to be made or amended in regard to such public trust in accordance with the decision so given or order passed by him; and thereupon, the provisions of sub-section (1) shall apply in relation to entries so made or amended as they apply in relation to entries made or amended according to the decision or order of a court.) 11. The Supreme Court held that this provisions is relevant for deciding the principles for determination as to whether in a particular case jurisdiction of Civil Court is ousted or not. The Supreme Court further held: "39. A plea of bar to jurisdiction of a civil court must be considered having regard to the contentions raised in the plaint. For the said purpose, averments disclosing cause of action and the reliefs sought for therein must be considered in their entirety. The court may not be justified in determining the question, one way or the other, only having regard to the reliefs claimed dehors 12 S.A.NO.245 /2009. the factual averments made in the plaint. The rules of pleadings postulate that a plaint must contain material facts. When the plaint read as a whole does not disclose material facts giving rise to a cause of action which can be entertained by a civil court, it may be rejected in terms of Order 7 Rule 11 of the Code of Civil Procedure." 12. The Supreme Court then discussed the settled law relating to exclusion of jurisdiction of Civil Court. ( Dhulabhai V/s State of M.P. A.I.R. 1969 SC 78). 13. Supreme Court has held further: "42. The BPT Act is a special law. It confers jurisdiction upon the Charity Commissioner and other authorities named therein. The statute has been enacted by the state legislature in public interest to safeguard the properties vested in the trusts as also control and management thereof so that the trust property may not be squandered or the object or purport for which a public trust is created may not be defeated by the persons 13 S.A.NO.245 /2009. having control there over." 14. The Supreme Court further held: "69. We have noticed hereinbefore that the BPT Act provides for finality and conclusiveness of the order passed by the Charity Commissioner in Sections 21(2), 22(3), 26, 36, 41(2), 51(4) and 79(2). "70. In view of the decision of this Court in Dhulabhai such finality clause would lead to a conclusion that the civil court's jurisdiction is excluded if there is adequate remedy to do what the civil courts would normally do in a civil suit.........." "In fact, the trustee of a public trust is enjoined with a statutory duty to make an application for registration wherein all necessary descriptions of movable and immovable property belonging to the trust including their description and particulars for the purpose of identification are required to be furnished. Section 19 provides for an inquiry for registration with a view to ascertaining inter alia the mode of 14 S.A.NO.245 /2009. succession to the office of the trustee as also whether any property is the property of such trust. It is only when the statutory authority satisfies itself as regards the genuineness of the trust and the properties held by it, is an entry made in the registers and books, etc. maintained in terms of Section 17 of the Act in consonance with the provisions of Section 21 thereof. Such an entry, it will bear repetition to state, is final and conclusive. Changes can be brought about only in terms of Section 22 thereof." 15. As said above, since the change report is already given by the respondent No.1 to 10 before the Assistant Charity Commissioner, it would now be for the said authority to consider the matter and if the change is found to be legal, it would record reasons for arriving at such conclusion. 16. In spite of this clear position, the learned Advocate appearing for the appellant, tried to argue that a trustee is entitled to file a Civil Suit against the resolution removing him from trustee-ship on the ground that the resolution was passed in violation of the 15 S.A.NO.245 /2009. principles of natural justice. He placed reliance on the another judgment of Supreme Court in the case of Rajasthan State Road Transport Corporation and another V/s Bal Mukund Bairwa (2) (2009) 4 Supreme Court Cases. 17. In this case the Supreme Court held that, "whether a suit is maintainable in Civil Court or dispute should be adjudicated by Labour Court, depends upon nature of the matter and issues involved." It held further that, "if the dispute arises out of rights and obligations under the Industrial Disputes Act or other laws like Industrial Employment (Standing Orders ) Act, 1946, the Civil Court's jurisdiction is barred. But if the disputes pertain to matters like non- observance of principles of natural justice or constitutional provisions, civil suit is maintainable." The reliance on this judgment is unnecessary, in view of the fact that the law on this specific subject is fully elaborated and settled by the judgment, referred to above. 18. In view of the Supreme Court judgment referred to above, the ratio of the judgment of the Kedar Shivkumar Kale V/s Digamber Shridhar Mhapsekar and others (supra) and even the ratio of the case of Namgonda Jingonda Patil V/s Appasaheb Bapurao 2000 (Suppl.) BCR page 582, can not be followed. 16 S.A.NO.245 /2009. 19. The appeal should, therefore, fail. The appeal is dismissed. 20. In view of the peculiar circumstances, the Assistant Charity Commissioner, Ahmednagar shall dispose of expeditiously and as far as possible, within six months from the date of receipt of communication of this order the change report in respect of the removal of the appellant. 21. In view of this, Civil Application No. 3509/2009 does not survive. It stands disposed of. (A.V.NIRGUDE,J.) lkp