Shankar Waman Thatte Vs. Madhav Krishna Joshi (Deceased) Through L.Rs. and ors. - Court Judgment

Excerpt:
[a] bombay public trusts act, 1950 - section 50--civil procedure code, 1908 - section 92--procedure under for institution of suits by or on behalf of charitable trusts- effect of section 50 of the act--provision under section 50 of the act excludes the application of section 92 of the code concept embodied in section 92 are engrafted in section 50 of the act and it substitutes the former.;it is now well settled that section 50 of the act for all purposes substitutes section 92 of the code of civil procedure. section 50 of the act excludes applicability of section 92 of the code of civil procedure to the public trusts. the concept embodied in section 92 of the code of civil procedure is engrafted in section 50 of the act. section 92 of the code of civil procedure as it stood before the amendment by act no. 104 of 1976 provided that in the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature or where the direction of the court is deemed necessary for the administration of any such trust, the advocate general or two or more persons having interest in the trust and having obtained consent in writing of the advocate general, may institute a suit whether contentious or not in the principal civil court of original jurisdiction or in any other court empowered in that behalf by the state government within the local limit of whose jurisdiction the whole or part of the subject-matter of the trust is situate to obtain a decree for the reliefs as enumerated in clauses (a) and (h) of that section.;section 50 of the act also provides for a suit to be filed in any case where it is alleged that there is a breach of public trust, negligence, misapplication or misconduct on the part of the trustee or trustees or where a direction or a decree is required to recover possession of or to follow a property belonging or alleged to be belonging to a public trust or proceeds thereof or for an account of such property or proceeds from a trustee, extrustee alienee, trespasser or any other person including a person holding adversely to the public trust but not a tenant or licensee, or where the direction of the court is deemed necessary for the administration of any public trust or for any declaration or injunction in favour or against a public trust or trustee or trustees or beneficiary thereof.;thus it is clear that the concept that is there in section 92 of the code of civil procedure has been brought in the act by section 50 of the act and by section 52 of the act the application of section 92 of the code of civil procedure is excluded in the matter of public trusts.;[b] bombay public trusts act, 1950 - section 50 - suit by charity commissioner filed at the instance and application of appellant -appeal against the judgment & decree - only charity commissioner competent to file appeal - appellant has no locus standi to prefer appeal under the act.;as a general rule it could certainly be said that even though a person who is not a party to a suit, if the judgment and decree adversely affects him he can certainly file an appeal against the judgment and decree albeit with the leave of the court. but to that general proposition the case on hand would be an exception as pointed out by the division bench of this high court in jan mahomed's case. it was at the instance of the realtors that the advocate general in jan mahomed's case, had filed the suit and he had not appealed against the decree. in the case on hand before me it was at the instance of the appellant that the charity commissioner had filed the suit and he has not filed any appeal, therefore even the abstract proposition that a person who is likely to be adversely affected by the judgment and decree can, with the leave of the court file an appeal against the judgment and decree even though he is not a party to the suit, cannot help the appellant in getting out of the position that arises on the strength of the judgment in jan mahomed's case. - section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses. - 1 to 5 be directed to render accounts of the income of the trust property during their tenure and after taking accounts they should be ordered to make good the loss sustained by the trust. 1 to 5 be directed to render accounts of the income of the trust properties during their tenure and after taking accounts they should be ordered to make good the loss sustained by the trust. 11. i think the appeal should fail on the first submission levelled by mr. 14. it is now well settled that section 50 of the act for all purposes substitutes section 92 of the code of civil procedure. sayed narudin bin sayed htsamudin rqfar and others, 32 ilr bombay 155 and submitted that in such matters the person like the appellant has no locus standi to file an appeal.k.g. shah, j.1. (1) this is an appeal by one shankar waman thatte, the appellant before me by which he challenges the validity, legality and justness of the judgment and order dated 3rd may, 1984 passed by the learned district judge, ratnagiri in regular civil suit no. 8 of 1971 on his file. that suit was filed by the charity commissioner, maharashtra state, bombay-respondent no. 6 herein under section 50 of the bombay public trust act, 1951 (for short 'the act') the suit pertained to a public trust named as 'shri sansthan bhargav parshuram' situate at village pedhe-parshuram in chiplun tahsil of ratnagiri district. the trust is a charitable trust pertaining to a temple and has been referred to by the learned district judge as a devasthan. original defendants no. 1 to 5 of that suit were the trustees of that trust appointed by the learned district judge, ratnagiri as per his order dated 22nd december, 1967 in pursuance of a scheme which was framed in civil suit no. 3 of 1989 for management of the aforesaid trust. in the suit filed by respondent no. 6, he prayed for the following reliefs.(a) defendants nos. 1 to 5 be removed from the trusteeship and from the management of the suit properties.(b) a new scheme for the administration of the trust be settled.(c) competent and proper persons should be appointed as new trustees and all the trust property be ordered to be vested in them.(d) as an interim relief, a court receiver be appointed pending the final disposal of the suit and suitable directions be given to him for proper administration of the trust.(e) defendants nos. 1 to 5 be directed to render accounts of the income of the trust property during their tenure and after taking accounts they should be ordered to make good the loss sustained by the trust. (f) the costs of the suit may be decreed against the defendants.2. it may be mentioned here that shankar waman thatte, the appellant before me and one another person had applied to respondent nos. 6 making allegations against the original defendant nos. 1 to 5 who were the trustees of the trust. in that application, the appellant and his companion had made allegations against the original defendant nos. 1 to 5, respondent no. 6 therefore filed the suit before the district court, ratnagiri under section 50 of the act praying for the aforesaid reliefs.3. the learned district judge after the trial of the suit passed the impugned judgment and order by which he has framed a new scheme for the management of the trust in question and he has ordered the removal of the original defendant nos. 1 to 5 from the trusteeship and has appointed a new set of trustees. one of the reliefs that respondent no. 6 prayed for in the suit was that the original defendant nos. 1 to 5 be directed to render accounts of the income of the trust properties during their tenure and after taking accounts they should be ordered to make good the loss sustained by the trust. that was the relief in prayer clause (e) of the plaint.4. though the learned district judge ordered removal of the original defendant nos. 1 to 5 from the trusteeship of the trust in question, he for reasons recorded by him in his judgment declined to grant the relief for accounts as prayed in prayer clause (e) of the plaint. the learned district judge settled a fresh scheme for the management of the trust in question.5. respondent no. 6, the original plaintiff in the suit has not challenged that judgment of the district court. therefore in that sense he has accepted that judgment. even the original defendant nos. 1 to 5, who were trustees of the trust in question and who have been ordered to be removed from the trusteeship, have not challenged that judgment.6. the present appellant shankar waman thatte, who was one of the persons who had approached the charity commissioner making grievances against the original defendant nos. 1 to 5 of mismanagement, negligence, dereliction of duties etc., feeling aggrieved by the judgment of the learned district judge approached this court with civil application no. 3418 of 1984. as he was not a party to the suit filed by respondent no. 6 before the district court, he prayed this court to allow him to prefer an appeal against the judgment and decree passed by the learned district judge in civil suit no. 8 of 1971. that civil application no. 3418 of 1984 was filed by him on 14th august 1984. on that civil application no notices to the present respondents were issued. however this court on 16th august 1984 i. e. to say within 2 days from the filing of the civil application passed a monosyllable order 'granted '. thus, the appellant has preferred the present appeal.7. mr. sanghvi, the learned counsel for the appellant took three exceptions to the judgment and decree passed by the learned district judge. firstly he submitted that learned district judge has erred in not granting the relief directing the original defendant nos. 1 to 5 to render accounts; a relief which respondents no. 6 has prayed in prayer clause (e) of the plaint. mr. sanghvi then took exception to sub-clause (a)(ii) of clause 8 of the scheme framed by the learned district judge. that clause pertains to the qualification of the trustees. he also took exception to a part of sub-clause (4) of clause 20 of the scheme.8. according to mr. sanghvi, the original defendant nos. 1 to 5, who were the trustees of the trust in question, have done several acts and omissions as a result of which the trust has suffered losses and therefore the learned district judge should, while removing them from the trusteeship, have directed them to render accounts of the income of the trust and should have saddled them with financial liabilities in respect of the loss suffered by the trust on account of their negligence, mismanagement, dereliction of duties etc. so far as clause 8(a)(ii) of the scheme is concerned, his objection was that a pujari of the temple should not be permitted to act as a trustee for the interest of pujari would be in conflict with the interest of the trust represented by a trustee. coming to clause 20 (4) of the scheme, he submitted that, that clause gives undue rights to pujaris. according to him, the learned district judge in the scheme should have provided that the donation boxes for the deity should be separately maintained. according to him, the learned district judge should not have conferred such wide rights in favour of the pujaris as has been done by clause 20 (4) of the scheme.9. i may mention here that the original defendant nos. 1,2, 4 and 5 have all died pending the proceedings and their heirs have been brought on record.10. on behalf of those original defendants and/or their heirs it was firstly contended that the appellant has no right to file such an appeal. he is not a person interested in the trust. he was not a party to the suit. he is busy body who should not be permitted to prosecute this appeal, the permission to file the appeal granted to him by this court notwithstanding. it was nextly submitted on behalf of the contesting respondents that as the new set of trustees, who have taken over the management of the trust under the orders of the learned district judge, has not been joined as party to the appeal, the appellant's appeal should be dismissed on that count also. mr. rege, the learned advocate who led the arguments on behalf of the contesting respondents also submitted that no exception is possible to be taken to the views expressed by the learned district judge for not directing the original defendant nos. 1 to 5 to render accounts for according to him the learned district judge has given cogent reasons based on evidence for adopting that course.11. i think the appeal should fail on the first submission levelled by mr. rege, namely that even in the face of the permission obtained by the appellant to file the present appeal he has no locus standi to file such an appeal. as i have pointed out hereinabove, the appellant filed civil application no. 3418 of 1984 on 14th august 1984. on that civil application no notices were issued to the present respondents or any of them and this court on 16th august 1984 passed a mono-syllable order 'granted'. technically speaking, this order should be construed as a permission to the appellant to file the present appeal. nonetheless the question remains whether the appellant has a locus standi to file the appeal. even at the cost of repetition i would say that on that civil application the present respondents were not heard at all. therefore even if as, submitted by mr. sanghvi, i cannot go behind that order 'granted' passed by this court upon the civil application of the appellant, i shall have to see as to what is the focus standi of the appellant to file the present appeal.12. mr. sanghvi, the learned counsel for the appellant relying upon the decision in the case of province of bombay v. western india automobile association, air 1949 bombay 141 submitted that even though the present appellant was not a party to the suit filed by the charity commissioner, as the learned district judge's order adversely affects him, he being a person interested in the trust, can certainly file an appeal against the judgment and decree of the learned district judge albeit with the leave of this court and that leave the appellant has obtained, therefore now, in the submission of mr. sanghvi, mr. rege's contention against the focus of the appellant should be rejected.13. i think mr. sarighvi's submission cannot be accepted for even though this court has granted permission to the appellant to file the appeal, the court is certainly required to examine the locus standi of the appellant in the matter of filing the appeal especially when the same is challenged by the respondents for the first time in this appeal. in the civil application which was filed by the appellant for the permission, the respondents were not at all given any notice and they were not heard. therefore this is the first occasion i, e. at the hearing of this appeal that the respondents can raise whatever objections in law they are entitled to raise to the focus standi of the appellant to file the appeal.14. it is now well settled that section 50 of the act for all purposes substitutes section 92 of the code of civil procedure. section 50 of the act excludes applicability of section 92 of the code of civil procedure to the public trusts. the concept embodied in section 92 of the code of civil procedure is engrafted in section. 50 of the act. section 92 of the code of civil procedure as it stood before the amendment by act no. 104 of 1976 provided that in the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature or where the direction of the court is deemed necessary for the administration of any such trust, the advocate general or two or more persons having interest in the trust and having obtained consent in writing of the advocate general, may institute a suit whether contentious or not in the principal civil court of original jurisdiction or in any other court empowered in that behalf by the state government within the local limit of whose jurisdiction the whole or part of the subject-matter of the trust is situate to obtain a decree for the reliefs as enumerated in clauses (a) and (b) of that section.section 50 of the act also provides for a suit to be filed in any case where it is alleged that there is a breach of public trust, negligence, misapplication or misconduct on the part of the trustee or trustees or where a direction or a decree is required to recover possession of or to follow a property belonging or alleged to be belonging to a public trust or proceeds thereof for an account of such property or proceeds from a trustee, ex trustee, alienee, trespasser or any other person including a person holding adversely to the public trust but not a tenant or licensee, or where the direction of the court is deemed necessary for the administration of any public trust or for any declaration or injunction in favour or against a public trust or trustee or trustees or beneficiary thereof.15. in the contingencies referred to in section 50 of the act as aforesaid, the charity commissioner after making such inquiry as he thinks necessary is empowered to file a suit for the reliefs as enumerated in clauses (a) to (q) of that section. that section also empowers two or more persons having interest as referred to in the section, and who have obtained the consent in writing of the charity commissioner as provided in section 51 of the act to file a suit for the same reliefs as could be prayed by charity commissioner in his suit.16. thus it is clear that the concept that is there in section 92 of the code of civil procedure has been brought in the act by section 50 of the act and by section 52 of the act the application of section 92 of the code of civil procedure is excluded in the matter of public trusts.17. a bare reading of section 50 of the act would therefore show that in the matter of filing a suit for the reliefs as envisaged in that section, it is the charity commissioner who is empowered to file such a suit. of course two or more persons having interest as mentioned in the section after obtaining the consent in writing of the charity commissioner are also empowered to file such a suit. the appellant before me with one of his companions approached the charity commissioner respondent no. 6 herein making allegation against the original defendant nos. 1 to 5 of mismanagement, negligence, dereliction of duties etc. on that application the charity commissioner himself through his inspector made certain inquiries and found some substance in the allegations that were made by the appellant and his companion in their application. the charity commissioner therefore himself thought it fit to approach the district court with a suit under section 50 of the act and he filed the suit from which this appeal arises. the charity commissioner has thought it fit not to challenge the judgment and decree passed by the district court in the suit, whereby the district court has while removing the original defendants nos. 1 to 5 from trusteeship thought it fit not to direct any accounts being taken from the original defendant nos. 1 to 5. the district court has also framed a new scheme. the charity commissioner has accepted that judgment and decree but the appellant feeling aggrieved by that judgment and decree has approached this court with the present appeal. the question is whether the appellant has a locus standi to file such an appeal.18. mr. rege, the learned advocate who led the arguments on behalf of the contesting respondents relied upon the decision in the case of jan mahomed abdul latif and another, v. sayed narudin bin sayed htsamudin rqfar and others, 32 ilr bombay 155 and submitted that in such matters the person like the appellant has no locus standi to file an appeal. the judgment relied upon by mr. rege is the judgment of this court rendered by a division bench. in that matter, the suit was brought by the advocate general at the instance of realtors, viz. the appellants under the provisions of section 539 of the old code of civil procedure. it appears that the suit in that case was filed by the advocate general at the instance of or upon the application of the appellants, the realtors. in that case upon a motion by the defendants, the court had ordered the relations to provide security to the satisfaction of the prothonotary for the balance of the estimated cost of the defendants within a certain time. ultimately the court ordered the suit to stand dismissed. the realtors i.e. the appellants before the division bench were not parties to the suit. on behalf of the respondents in that appeal a preliminary objection was raised about the maintainability of the appeal filed by the realtors who were not parties to the suit though of course, as it appears, it was at the instance of the realtors that the advocate general had filed the suit. in that connection, the division bench of this court observed as follows : -we are against the appellants on the preliminary objection to this appeal raised by the respondents counsel. we are of opinion that the suit having been brought by the advocate general, he was the proper party to appeal and not the realtors who have filed this appeal. they were not party to the suit and as realtors they have no right to step in when the advocate general who was plaintiff has not thought it fit to appeal against the dismissal of the suit.on the afore said holding, the division bench dismissed the appeal. i think the principle as has been enunciated by the division bench squarely applies to the case before me also. in the case before me it was upon the application of the present appellant that the charity commissioner respondent no. 6 had filed the suit before the district court under section 50 of the act. in that suit the learned district judge has passed the judgment and decree. as pointed out hereinabove, the concept that is embodied in section 92 of the code of civil procedure equivalent to the old section 539 of the code of civil procedure has been embodied in section 50 of the act. in section 92 of the code of civil procedure as it stood prior to 1976 primarily it was the advocate general who was empowered to file a suit though of course two or more persons having interest in the trust and having obtained consent in writing from the advocate general were also empowered to file the suit. nonetheless when the advocate general filed the suit, as held by the division bench of the bombay high court in the judgment referred to hereinabove, it was the advocate general alone who has a right to file an appeal if he was dissatisfied by the result of the suit and the realtors, viz. the person at whose instance the advocate general filed the suit, have in turn been held to be persons who are not proper party to the appeal. applying the same principle to the case on hand before me, the charity commissioner who was the plaintiff in the suit was the only proper party who could have filed an appeal and not the person at whose instance the charity commissioner had filed the suit. the present appellant though he has secured the permission of this court to file the appeal, in my opinion, is, in the words of the division bench judgment, not a proper party to file the appeal. if the charity commissioner was in any manner aggrieved by the judgment and decree, it was for him to file an appeal. the charity commissioner has not filed any appeal against the impugned judgment and decree.19. mr. sanghvi tried to distinguish the judgment in jan mahomed's case by contending that in jan mahomed's case the realtors had not obtained leave of the court for filing the appeal while in the case before me the present appellant has obtained such a leave and there lies the distinction between the case of jan mohomed and the case on hand before me. i think this argument of mr. sanghvi cannot extricate the appellant from the incompetence of his in the matter of filing the appeal on the basis of the judgment in jan mahomed's case. the reliance placed by mr. sanghvi on the decision in the case of province of bombay v. western india automobiles association (supra) also cannot help the appellant from the situation that arises against him on the strength of the judgment in jan mohomed's case.20. as a general rule it could certainly be said that even though a person who is not a party to a suit, if the judgment and decree adversely affects him he can certainly file an appeal against the judgment and decree albeit with the leave of the court. but to that general proposition the case on hand would be an exception as pointed out by the division bench of this high court in jan mahomed's case. it was at the instance of the realtors that the advocate general in jan mohomed's case, had filed the suit and he had not appealed against the decree. in the case on hand before me it was at the instance of the appellant that the charity commissioner had filed the suit and he has not filed any appeal. therefore, even the abstract proposition that a person who is likely to be adversely affected by the judgment and decree can, with the leave of the court, file an appeal against the judgment and decree even though he is not a party to the suit, cannot help the appellant in getting out of the position that arises on the strength of the judgment in jan mohomed's case. that being the position, i think neither the judgment in the case of province of bombay v. western india automobile association (supra) nor the fact that the appellant has secured permission from the court to file an appeal would help him in prosecuting this appeal. the appeal is therefore liable to be dismissed on that count-alone. in that view of the matter, i do not think any purpose is going to be served by considering the other submissions which were raised by the advocates at the bar.21. in the end, the appeal fails and is dismissed with no order as to costs. all interim orders on the appeal and the connected civil application stand vacated.22. mr. sanghvi submitted that the interim orders of stay should be continued for some time in order to enable the appellant to pursue his further remedy. the request is rejected.