Vijaykumar and Others Vs. Manohar and Others

FACTS:

1. This appeal relates to the disputes amongst thetrustees/members of an educational trust registered under theprovisions of the Bombay Public Trust Act (hereinafter referredas to the "B.P.T. Act" for the sake of brevity). When the disputereached the Court of Additional District Judge, Nilanga Camp atLatur, the learned Additional District Judge, Nilanga on03.05.2002 in Misc. Application No. 29/1999 and Misc.Application No. 52/1999 made the following operative order.

ORDER

i) The application bearing M. A. No. 29/99and cross objection therein are herebydismissed.

ii) The application bearing M. A. No. 52/99stands allowed and the impugned order ofremoval of the applicants therein fromtrusteeship of the trust Mahatma BasweshwarShikshan Sanstha, Latur PTR No. F52(Latur)is hereby setaside.

Thedirection to Assistant CharityCommissioner, Latur and stipulation imposedon the trustees under impugned order shallstand vacated.

iii) The applicants in M. A. No. 52/99 to holdthe reins of the administration of the trust andto take steps for appointment of other trusteesaccording to the provisions of the instrument ofthe trust or in accordance with the provisions ofBombay Public Trust Act, 1950.

iv) No order as to costs.

2. Under operative order Clause (iii) he directed that theapplicants in M. A. No. 52/1999 to hold the reins ofadministration of trust and to take steps for appointment of othertrustees. Pursuant to the said direction in 2002 ManoharKeshavrao Patil/respondent No. 1 herein was appointed astrustee by the said body of "fit persons" which came intoexistence pursuant to the said judgment and order dated03.05.2002. However, on 24.10.2006, the respondent No.1/Manohar Patil resigned from the post of trustee as well asmember of the trust by filing an application in writing and thatapplication was considered by the said body of 'fit persons' whichaccepted his resignation by resolution passed by committee on31.10.2006 and a Change Report about it was filed vide ChangeReport Enquiry No. 689 of 2006 before the Assistant CharityCommissioner, Osmanabad. The Assistant CharityCommissioner conducted the proceedings of enquiry in absence ofthe respondent No. 1/Manohar Patil, because he and his advocatewere absent and did not adduce any evidence to prove his caseafter filing his reply Exhibit 13 dated 16.03.2007. Consequently,the Assistant Charity Commissioner, Osmanabad accepted thesaid change report and directed necessary amendment toSchedule Iby his order dated 29.01.2009. The respondent No. 1challenged the said order in Revision Application No. 31/2009before the Joint Charity Commissioner Latur who on 11.03.2010allowed the said revision and held that under Clause 29 of theConstitution of the trust, governing council has power to suspendor cancel the membership of person in case of misconductcommitted by such person and, therefore, the governing council isempowered to accept the resignation, but he stated that the bodyof 'fit persons' not being elected trustees of governing councilwere not competent to accept the resignation of Manohar Patil astrustee and member of the trust, because body of fit persons wasnot 'dejure'trustees, but was 'defacto'trustees. Thereafter, thematter went before the District Judge 1,Latur at the instance ofpresent appellants, who filed Application U/Sec. 72(1) of theB.P.T. Act before the District Court, who concurring with thefindings recorded by the Joint Charity Commissioner dismissedthe application. Hence this second appeal.

SUBMISSIONS:

3. The learned senior counsel for appellants Shri V. J. Dixit,instructed by Shri S. V. Natu made the following submissions:

i) The direction No. 3 in the operative part of the judgmentdated 03.05.2002 by the District Court clearly shows that thebody of fit persons was required to take reins of administration ofthe trust in entirety and there is no prohibition or limitations puton said body of fit persons on working of the administration ofthe trust or for taking policy decision.

ii) The subject namely acceptance of resignation of a trusteeand a member obviously falls within the meaning of the termadministration of the trust and, therefore, there is no reason whysuch body of fit persons duly accepted by the other side should beheld to be not competent to accept a resignation of a trustee andmember which act admittedly is voluntary.

iii) It is an admitted fact that, the respondent No. 1/ShriManohar Patil was appointed by the said body of fit persons afterit was constituted by the order dated 03.05.2002 by the DistrictCourt and it is the same body of fit persons which has acceptedthe resignation of the respondent No. 1.

iv) The respondent No. 1 never disputed the resignation inwriting tendered by him as trustee as well as the member of thetrust and, therefore, that being voluntary act on his part coupledwith the fact that, he did not contest the change report before theAssistant Charity Commissioner in the matter is estopped by hisconduct to put challenge to the same. Hence he prayed forreversing the impugned judgments and orders.

4. Per contra, Mr. S. B. Talekar, the learned counsel for therespondent No. 1 vehemently opposed the second appeal andargued that the body of fit persons constituted by the DistrictCourt must be held to be 'defacto'trustees and not 'dejure'trustees as has been held by two courts below and there is noreason why the same should be interfered with by this Court.

5. Mr. Talekar, fairly stated that, the respondent No. 1 did notdispute the fact of resignation being tendered in writing for thepost of trustee and member of the trust and that he did notappear before the Assistant Charity Commissioner to contest thechange report and that the resignation tendered by therespondent No. 1 was voluntary. However, Mr. Talekar, stronglystressed the point that the body of fit persons was not competentto accept the resignation as trustee or as a member of the trust,because it has no status of governing body or managingcommittee as understood in the Constitution of the trust toproceed to take action or accept resignation. According to him,the body of fit persons is merely a body to look after the daytoday administration and function, but cannot take a majordecision of accepting resignation of a trustee or a member orboth, considering the nature of its limited authority. The body offit persons is nothing but an adhoc body set up by way of stop gaparrangement and nothing more. He then argued that, therespondent No. 1/Manohar Patil is a life member of the trust andhe cannot be removed by resignation that too by an adhoc body,which is nothing more than a defactoboard of trustees and not adejure.Mr. Talekar took me through the Constitution of thetrust and various clauses therein about the powers and functionsof governing body and also about the removal of members. Hesubmitted that, there is no power or function entrusted with theadhoc body of fit persons to accept the resignation of trustee or amember. He relied on the following decisions.

I) Ajit Shankarrao Deshmukh and others Vs. The JointCharity Commissioner, Nagpur and others reported in2010(2) All MR 250.

II) Hislop Education Society Vs. Presiding Officer, UniversityCollege Tribunal Nagpur and others reported in 2009(5) All MR 776.

III) Avinash Ganpatrao Shegaonkar and others Vs. ShriJayawant @ Babasaheb S/o Vishwanath Uttarwar andothers reported in 2010(3) All MR 606.

IV) Zitru Lahanuji Lonare Vs. Rajesh Trimbakrao Deshmukhand others reported in 2008(6) Mh. L. J. 348.

and argued that, this Court has clarified the nature ofappointment of body of fit persons and its functions to mean thatthe same is stop gap and defactoarrangement and nothingmore. He therefore, prayed for dismissal of second appeal.

CONSIDERATIONS:

6. I have heard the learned counsel for rival parties at length.I have carefully perused the record, so also the decisions citedbefore me. The following substantial questions of law arise formy consideration.

"Resignation", in the dictionary sense, means thespontaneous relinquishment of one's own right.This is conveyed by the maxim: 'Resionatio estjuris propii spontanea refutatio'. In relation toan office, it connotes the act of giving up orrelinquishing the office. To "relinquish an office"means to "cease to hold" the office or to "loosehold of" the office, and to "loose hold of office",implies to "detach", "unfasten", "undo or untiethe binding knot or link" which holds one to theoffice and the obligations and privileges that gowith it. Inthe general juristic sense also, themeaning of "resigning office" is not different.There also, as a rule, both, the intention to giveup or relinquish the office and the concomitantact of its relinquishment, are necessary toconstitute a complete and operative resignation,although the act of relinquishment may takedifferent forms or assume a unilateral orbilateral character, depending on the nature ofthe office and the conditions governing it. Thus,resigning office necessarily involvesrelinquishment of the office, which impliescessation or termination of, or cutting as underfrom the office. Indeed, the completion of theresignation and the vacation of the office, are thecasual and effectual aspects of one and the sameevent. From the above dissertation, it emergesthat a complete and effective act of resigningoffice is, one which serves the link of theresignor with his office and terminates itstenure."

8. Considering the above admitted facts and the order dated03.05.2002 supra and in particular operative order part (iii),which is again quoted below,iii) The applicants in M. A. No. 52/99 to holdthe reins of the administration of the trust andto take steps for appointment of other trusteesaccording to the provisions of the instrument ofthe trust or in accordance with the provisions ofBombay Public Trust Act, 1950.

to my mind shows that the body of fit persons appointed must beheld to be 'dejure'trustees and not 'defacto'trustees.

9. Black's Law Dictionary Eighth Edition gives the meaningof word "dejure"thus:

"de jure (di juureealso dee or day), adj. [LawLatin "as a matter of law"] Existing by right oraccording to law de jure segregation duringthe preBrownera. Cf. DE FACTO; DE GRATIA."

10. Section 41D(4) of the B. P. T. Act reads thus:

THE BOMBAY PUBLIC TRUST ACT, 1950

41 D. Suspension, removal and dismissalof trustees.

(1) ...............

(2) ...............

(3) ...............

(4) Where the Charity Commissioner hasmade an order suspending, removing ordismissing any trustee and such trusteeis the sole trustee, or where there are morethan one trustee and the remainingtrustees, according to the instrument of trust,cannot function or administer the trust withoutthe vacancy being filled, then in that casethe Charity Commissioner shall appoint a fitperson to discharge the duties and performthe functions of the trust, and such personshall hold office only until a trustee isduly appointed according to the provisions ofthe instrument of trust.

11. It is thus clear that, it is by virtue of the provisions of lawU/Sec. 41 D(4) of the B. P. T. Act that the body of fit persons isappointed. That being so, I have no hesitation in answering thesubstantial question No. 1 in affirmative.

12. In view of the answer given by me to question No. 1 and inview of the fact that the said body of fit persons was managingthe affairs of the trust under the order of District Court inexercise of power under statutory law without any restriction onthe body of fit persons in the matter of exercise of power inadministration of the trust, there is no reason why the body of fitpersons should not be termed as a competent body to accept theresignation voluntarily tendered by the respondent No.1/Manohar Patil. Hence, I answer substantial question No. 2 inaffirmative.

13. Section 115 of the Indian Evidence Act reads thus:

THE INDIAN EVIDENCE ACT 1872

1. .........

115. Estoppel.-Whenone person has, byhis declaration, act or omission, intentionallycaused or permitted' another person to believea thing to be true and to act upon such belief,neither he nor his representative shall beallowed, in any suit or proceeding betweenhimself and such person or his representative,to deny the truth of that thing.

As stated earlier, the respondent No. 1 voluntarily tenderedhis resignation as trustee and member of the trust to the body offit persons, who had appointed him as a trustee, thoughoriginally he was member of the trust. However, since he himselfwanted to tender resignation of both as trustee and member andtendered accordingly and does not raise any dispute even nowabout his act of resignation as trustee as well as member, isclearly estopped by his declaration from putting to challenge theacceptance of change report of resignation on the principles ofestoppel by conduct. He is also estopped on the said principle tochallenge the authority of the body of fit persons to accept hisresignation as trustee as well as member. The statement madeby Mr. Talekar, the learned counsel for the respondent No. 1 that,the body of fit persons should be held as 'defacto'trustees asheld by the two courts below, does not appeal to me for the abovereasons. His second submission that, as member of the trust atleast the acceptance was illegal also does not impress me, sincethe body of fit persons was authorized to administer the trustand its affairs and also to take steps for appointment of othertrustees which would also include acceptance of resignation as atrustee or member. The body of fit persons was incharge of thetrust in place of the members of the trust which becamefunctional as constituted by the Rules and Regulations of thetrust. Thus, I answer the last question in the affirmative.

14. The upshot of the above discussion is, instant secondappeal must succeed. Hence I make the following order.

ORDER

A. Second Appeal No. 708 of 2010 is allowed, with no order asto costs.

B. The impugned judgment and order dated 24.08.2010 passedby the District Judge 1,Latur in Misc. C. A. No. 69/2010and the judgment and order dated 11.03.2010 passed by theJoint Charity Commissioner, Latur in Revision No. 31/2009are set aside.

C. The judgment and order dated 29.01.2009 passed by theAssistant Charity Commissioner, Osmanabad in ChangeReport No. 689 of 2006 is restored.

15. After pronouncement of the judgment, the learned counselfor the respondent No. 1 prays for stay of this judgment, whichprayer is opposed by the learned counsel for appellants. Thereshall be stay to this judgment for a period of six (6) weeks fromtoday.