Kambli 1 wp39.01 IN THE HIGH COURT JUDICATURE AT BOMBAY ORIDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.39 OF 2001 ... Samata Industrial Premises Welfare Society ...Petitioners v/s. 1.D.B.Abhyankar, In-charge, Charity Commissioner Maharashtra State, Mumbai 2.State of Maharashtra 3.Smt.Estella A. Machado 4.Shri Ansalam Anthony Machado 5.Shri Rogers Anthony Machado 6.Mr.Leena Veronica Nelson 7.Nicholas Anthony Machado 8.Mrs.Anita Shekar Sanil 9.Mrs.Ophalia Martin Hendriques 10.A.H.Wadia by its trustees 10(a)Jehangir Adi Wadia 10(b)Muncherji N.M.Cama 10(c)Adil Jehangir Wadia 10(d)Sheroo Jehangir Wadia ...Respondents WITH Kambli 2 wp39.01 CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2027 OF 2009 ... Jehangir Wadia & ors. ...Petitioner v/s. D.B.Abhyankar & ors. ...Respondents WITH FIRST APPEAL NO.1929 OF 2010 AND FIRST APPEAL NO.1930 OF 2010 ... Smt.Estella A. Machado and ors. ...Appellants v/s. Jehangir A. Wadia & ors. ...Respondents ... Mr.D.D.Madon, Sr.Advocate with Mr.Aspi Chinoy, Sr.Advocate with Mr.Umesh Shetty and Mr.R.D.D’souza i/b Umesh Shetty & Co. for Petitioners in writ Petition No.39 of 2001. Mr.A.V. Anturkar i/b. Mr.S.B. Deshmukh for the Appellants in First Appeal No.1929 of 2010 and First Appeal No.1930 of 2010 & Respondents 3 to 9 in Writ Petition No.39 of 2001. Mr.Ahmed Sayed and Ms.Amitha Poojari i/b. Kambli 3 wp39.01 M/s.Consult Legal for Petitioners in Writ Petition No.2027 of 2009 and Respondents Nos. 10(a) to 10(d) in Writ Petition No.39 of 2001. Mr.Niranjan Pandit, AGP for State. Mr.N.K.Mudnaney for Applicant in Chamber Summons. Ms.Usha Gadagkar with Mr.H.Diamondwala i/b. M/s.Divya Shah Associates for Respondent No. 22 in Notice of Motion No.205 of 2008. Mr.Gautam Ankhad i/b Federal & Rashmikant for Respondent No.24 in Notice of Motion No.205 of 2008. ... CORAM: D.K.DESHMUKH & N.D.DESHPANDE,JJ. Dated: 12th January, 2011 P.C.: 1. All these matters relate to the same property, therefore, they can be conveniently disposed of by a common order. Admittedly, an application was filed by (1)Smt.Stella A. Machado, (2)Shri Ansalam Anthony Machado, (3)Shri Rogers Anthony Machado, (4)Mrs.Leena Kambli 4 wp39.01 Veronica Nelson, (5)Nicholas Anthony Machado, (6)Mrs.Anita Shaker Sanil and (7)Mrs.Ophalia Martin Hendriques (hereinafter referred to as “Machados”) under Section 41-E r/w 41-A and Section 51 of the Bombay Public Trust Act, 1950 before the Charity Commissioner seeking following reliefs: (a) This Hon’ble Authority be pleased to issue directions to the opponents to execute the regular Registered Deed of Confirmation of the aforesaid oral lease of Shri Anthony Louis Machado, the Husband of the applicant No.1 and father of applicant No.2 to 7 in respect of S.No.292, Hissa No.11 Village Kole Kalyan admeasuring 15 acres and 16 gunthas. (b) This Hon’ble Authority be pleased to issue directions to the opponents to incorporate in the Deed of Confirmation referred to in prayer (a) hereinabove that the residuary area of 6 Acres and 16 gunthas from Survey No.292. Hissa 11 corresponding to C.T.S. No.5144, 7644 and 7645A and B situated at village Kole Kalyan, Santacruz (East), Mumbai 400 098 forms the part of the aforesaid lease. Kambli 5 wp39.01 (c) This Hon’ble Authority be pleased to issue directions to confirm the rights, interest and title of the said deceased Shri Anthony Louis Machado, the husband of Applicant No.1 and father of Applicants No.2 to 7 are vested in and have devolved upon the applicants No.1 to 7 as the heirs and legal representative of the said deceased Shri Anthony Louis Machado in respect of the aforesaid immoveable property viz. Residuary area of 6 acres and 16 gunthas from Survey No.292 Hissa No. 11 corresponding to C.T.S. No.5144, 7644 and 7645-A and B situated at village Kole Kalyan, Santacruz (East), Mumbai. (d) The Hon’ble Authority may be pleased to direct the Opponents to execute the aforesaid Deed of Confirmation within 15 days from the date of the directions that this Hon’ble Authority be pleased to issue to the opponents. (e) This Hon’ble Authority may be pleased to pass such necessary and suitable orders in the matter. The applicants say that the said application No.66 of 1997 is pending disposal before this Hon’ble Authority. It has been admitted, acknowledged and recognised by the Trustees that the applicants are in possession since 1949 of the said land under the application and are paying ground rent regularly. A xerox Kambli 6 wp39.01 copy of the rent receipt No.8320 dated 10-2-1999 issued by the Respondent/Trust is annexed hereto marked as Exhibit-A. The trustees of A.H.Wadia Charitable Trust (hereinafter referred to as “Trust”) were joined as Respondents. It is common ground that though the application was filed under Section 41-E r/w 41-A and Section 51 of the Bombay Public Trust Act, the office of the Charity Commissioner registered the application under Section 41-E. That Application was decided by order dated 30-12-2000 by the Charity Commissioner. The operative part of the order of the Charity Commissioner reads as under: ORDER 1)The non-applicants or anybody on their behalf are hereby restrained by the order of temporary injunction from alienating the immovable property Kambli 7 wp39.01 i.e. 6 Acres and 16 Gunthas of land as described in Application Exhibit 1 and which is in possession of the applicants to any other person without following the due procedure of law and without following the provisions of Section 36 of the Bombay Public Trust Act, 1950. 2) The non-applicants are hereby directed to execute necessary document in favour of the applicants in respect of their rights pertaining to the land in question in view of the provisions of Section 55 of the Maharashtra Rent Act, 1999. They are further directed to see that the interest of the trust is protected at any cost and they are further directed to defend the title of the trust with utmost care and defend the litigation pending against the Trust before any legal forum. 2. Two Appeals against this order were filed in the City Civil Court under the provisions of the Bombay Public Trust Act, one by the Trustees of the Trust and other by Machados. Writ Petition No.39 of 2001 was filed by the Petitioners- Samata Industrial Premises Welfare Society challenging the same Kambli 8 wp39.01 order in this court. Petitioner No.1 is a society registered under the Societies Registration Act and the Bombay Public Trust Act. Petitioners Nos. 2 & 3 are the trustees. Petitioners claim that the members of the Petitioner No.1-society are in possession of the land which is subject matter of the order dated 30-12-2000. Two Appeals filed before the City Civil Court were registered as Charity Application No.4 of 2001 and Charity Application No.15 of 2001 and were disposed of by a common order dated 12th December, 2008. The order of the City Civil Court shows that before the City Civil Court challenge to paragraph (1) of the operative part of the order dated 30-12-2000 was given up. The City Civil Court by its aforesaid common order has, however, set aside paragraph 2 of the order dated 30-12-2000. Kambli 9 wp39.01 3. Writ Petition No.2027 of 2009 has been filed by the Trustees of the Trust in this court challenging the common order passed by the City Civil Court. According to the trust, the observations in the order of the City Civil Court that they had given up their challenge to paragraph 1 of the operative part of the order dated 30-12-2000 is wrong. There are two appeals filed by Machados in this court being First Appeal No.1929 of 2010 and First Appeal No.1930 of 2010 challenging the common order passed by the City Civil Court. 4. The learned Counsel appearing for the Petitioners in Writ Petition No.39 of 2001 submitted that though it is true that paragraph 2 of the operative part of the order dated 30-12-2000 has been set aside by the City Civil Court, according to him the Kambli 10 wp39.01 entire order passed by the Charity Commissioner dated 30-12-2000 is nonest, as the application on which that order has been passed itself was incompetent and not maintainable. 5. The learned Counsel invited our attention to the opening part of the provision of Section 41-E of the Bombay Public Trust Act. Which reads as under: “(1)Where it is brought to the notice of the Charity Commissioner either by the Deputy or the Assistant Charity Commissioner through is report or by an application by at least two persons having interest supported by affidavit:” The learned Counsel submits that term “person having interst” is defined by Section 2(1) of the Act. Section 2(10) reads as under: 2(10)“person having interest” (includes)- Kambli 11 wp39.01 (a) in the case of a temple, person who is entitled to attent 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 (XXI of 1860), any member of such society, and (e) in the case of any other public trust (any trustee or beneficiary); 6. The learned Counsel then submitted that the applicants before the Charity Kambli 12 wp39.01 Commissioner i.e. Machados have filed Suit No.1295 of 2007 in this Court in relation to the same property to which the order impugned in the present petition relates. An objection to the maintainability of the suit was raised on the ground that sanction of the Charity Commissioner as required by Section 51 of the Bombay Public Trust Act has not been obtained before institution of the suit. In reply to that objection a stand has been taken on behalf of Machados that because they are not persons having interest within the meaning of Section 2(10) of the Act, it is not necessary for them to obtain any sanction from the Charity Commissioner. It was submitted that in view of this stand taken by Machados that they are not persons having interest the Application under Section 41-E filed by them is not maintainable. Kambli 13 wp39.01 7. We have heard the learned Counsel appearing for Machados. We find that in order to maintain an application under Section 41-E it is necessary that the two persons who are filing the application must be persons having interest. We further find that in Suit No. 1295 of 2007 a preliminary issue was framed to the following effect: “Whether the suit filed without written consent of the Charity Commissioner as required under Section 51 read with Section 50 of the Bombay Public Trust Act, 1950 is maintainable?” That issue has been decided by the learned single Judge of this Court by order dated 15th September, 2010. Machados were plaintiffs in that suit. In paragraph 11 of that order submission made by Shri Anturkar, the learned Kambli 14 wp39.01 Counsel appearing for Machados in that suit as well as in the present proceedings has been recorded. It reads as under: 11 Learned Counsel Mr.Anturkar appearing on behalf of the plaintiffs had submitted that the arguments advanced on behalf of the defendants are misconceived and the plaintiffs were not required to obtain sanction from the Charity Commissioner in view of the language of Section 51. According to him, a person who is having interest in any public trust, has to obtain sanction if he wants to file a suit of a nature covered by Section 50 of the said Act. Learned Counsel Mr.Anturkar submitted that the plaintiffs claim to be lessees in respect of the suit property and therefore, reading the definition of term "Person having interest appearing in Section 2(10) of the said Act, the present plaintiffs would not fall within the meaning of the said term "Persons having any interest in public trust". He submitted that if his argument is accepted, then no consent was required as per Section 50 and Section 51 of the said Act. 7. Perusal of paragraph 16 of the order Kambli 15 wp39.01 of the learned single Judge shows that the submission made on behalf of Machados that they are not persons interested has been accepted by the learned single Judge for deciding the preliminary issue and a finding has been recorded that the Machados are not persons interested within the meaning of Section 2(10) of the Act. Paragraph 16 of the order reads as under: 16 In order to decide the point, in question, it is certain that the averments in the plaint will have to be read as it is and that has been done. The Plaintiffs claim that they are lessees of defendant no.1 in perpetuity and therefore, they were entitled to have suit land sold to them and defendant no.1 could not have transfered the suit land to defendant nos.2 to 13. The plaintiffs style themselves as lessees of Defendant no.1. In view of observation of the Supreme Court in the case of Sopanrao S.Sable (supra), the plaintiffs cannot be termed as persons covered under the provisions of Section 2(10) of the said Act. Provisions of Section 51 as regards obtaining sanction Kambli 16 wp39.01 from the Charity Commissioner are applicable where a person having an interest in any public trust intends to file the suit for reliefs set out in Section 50 of said Act. Once it is observed that the plaintiffs are not the persons having an interest in the trust of defendant no.1, there is no question of plaintiffs falling within the ambit of Section 51 and consequently, requirement of seeking permission from the Charity Commissioner cannot be made applicable to them. 8. In our opinion, in view of the clear stand taken by Machados that they are not persons interested within the meaning of Section 2(10) of the Bombay Public Trust Act, their application filed under Section 41-E in relation to the same property was clearly not maintainable and therefore, the order dated 30-12-2000 could not have been passed by the Charity Commissioner in that application as the application itself was incompetent and not maintainable. Kambli 17 wp39.01 9. In the result, therefore, Writ Petition No.39 of 2001 succeeds and is allowed. The order dated 30-12-2000 passed by the Charity Commissioner in Application 13 of 1999 is set aside. The Application No.13 of 1999 filed under Section 41-E of the Bombay Public Trust Act by Machados is rejected with liberty to them to adopt such remedy as may be available to them in law. 10. As a consequence of the order passed in Writ Petition No.39 of 2001, First Appeal No.1929 of 2010 and First Appeal No.1930 of 2010 and Writ Petition No.2027 of 2009 do not survive for consideration and disposed of as such. 11. As the order of the Charity Commissioner dated 30-12-2000 itself has been set aside, the order of the City Civil Court Kambli 18 wp39.01 modifying that order which is challenged in two First Appeals and Writ Petition No.2027 of 2008 also does not survive for consideration. 12. In view of disposal of Writ Petitions and First Appeals, all ancillary proceedings filed therein are also disposed. (D.K.DESHMUKH,J.) (N.D.DESHPANDE,J.)