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Digambar Pralhad Jot and ors. Vs. Satyanarayan Biharilal Zunzunwala and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appl. No. 130 of 1972
Judge
Reported inAIR1978Bom196
ActsBombay Public Trusts Act, 1950 - Sections 2(10), 19, 22, 22A, 28, 29, 36, 39, 41D, 41E(3), 43(2), 47, 50, 50A, 51, 51(1), 54(3) and 79AA(2); Constitution of India - Articles 226 and 227; Societies Registration Act, 1860; Presidency Small Cause Courts Act, 1882; Provincial Small Cause Courts Act, 1887; Bombay Public Trust Rules, 1951
AppellantDigambar Pralhad Jot and ors.
RespondentSatyanarayan Biharilal Zunzunwala and ors.
Appellant AdvocateP.S. Badiye and ;M.B. Badiye, Advs.
Respondent AdvocateM.P. Badar, Asst. Govt. Pleader
Excerpt:
.....is not exhaustive. ;b) the case argued whether the high court could interfere in a finding by the deputy charity commissioner, which revealed that certain persons were having interests in the trust - it was ruled that as the finding was an established fact and the high court, in its extraordinary jurisdiction under article 226 or article 227 of the constitution of india, was not entitled to interfere in it. ;c) the case debated whether the petitioners were given an reasonable opportunity to put forward their case before the deputy charity commissioner - the notice of hearing of the application filed under section 51 of the bombay public trusts act, 1950 was served on the applicant, the petitioner, on the second week of september 1971 - the hearing of the case was fixed on 26.10.1971-..........writ petition is filed by the petitioners challenging the order dated 29th oct. 1971 passed by the deputy charity commissioner, nagpur region, nagpur who is empowered with the powers of the charity commissioner under section 51 of the bombay public trusts act, 1950, referred to hereinafter as the act, granting permission to the respondents nos. 1 to 12 to file a suit under section 50 of the act.2. it appears from the record that the respondents nos. 1 to 12 filed an application under sections 50 and 50a of the act before the charity commissioner, bombay, which was later on forwarded to the deputy charity commissioner, nagpur. in the said application these respondents alleged that they are the donors of the registered public trust run under the name and style of shikshan prasarak mandal.....
Judgment:

Dharmadhikari, J.

1. This writ petition is filed by the petitioners challenging the order dated 29th Oct. 1971 passed by the Deputy Charity Commissioner, Nagpur Region, Nagpur who is empowered with the powers of the Charity Commissioner under Section 51 of the Bombay Public Trusts Act, 1950, referred to hereinafter as the Act, granting permission to the respondents Nos. 1 to 12 to file a suit under Section 50 of the Act.

2. It appears from the record that the respondents Nos. 1 to 12 filed an application under Sections 50 and 50A of the Act before the Charity Commissioner, Bombay, which was later on forwarded to the Deputy Charity Commissioner, Nagpur. In the said application these respondents alleged that they are the donors of the registered public trust run under the name and style of Shikshan Prasarak Mandal of Akot, referred to hereinafter as the Mandal, According to them, they are the persons interested in the Trust as they are the donors and their wards are also studying in the school run by the Trust. In the said application they had made several averments and allegations, including the allegation regarding certain irregularities in the management of the Trust as well as mishandling of the funds thereof. It was also contended by them that 19 persons had applied for the membership of the Mandal but their applications were rejected arbitrarily. It was also their grievance that the list of the members was not prepared prior to the election of the new Managing Body and the defaulters were allowed to participate in the election. Thus they challenged the election to the Managing Body itself. They have further claimed removal of the trustees and the declaration that the election held was illegal. Among other allegations it was also contended in the application that the Managing Body has not complied with the direction given by the authorities and the management showed favouritism in the matter of employment. According to them, the Mandal and the Managing Body were totally unmindful of the interest of the education of students and they have also failed to comply with the policy laid down by the Government in the matters of employment of the persons belonging to the scheduled castes and scheduled tribes. It was further contended by the respondents Nos. 1 to 12 that they should be enrolled as members of the Mandal and the election held on 18th March 1971 should be declared as illegal. On these allegations they sought permission to file a suit under Section 50 of the Act. They had also prayed for appointment of new trustees and settlement of a scheme for the trust and such other reliefs as the Court deems fit and proper in the circumstances of the case.

3. After this application was forwarded to the Deputy Charity Commissioner, he issued notices to the petitioners asking them to appear before him on 26th Oct. 1971 at the Rest House Akola. From the record it is clear that these notices were received by the petitioners sometime in the first or second week of Sept. 1971 itself. The petitioners appeared before the Deputy Charity Commissioner on 26-10-1971 through their counsel and asked for two months' time to file writ-ten-statement. This request was not granted. Thereafter the petitioners filed their statement on 26th Oct. 1971 itself and they also filed their notes of argument on 27 Oct. 1971.

4. After considering this reply and notes of argument, ultimately the Deputy Charity Commissioner vide his order dated 29th Oct. 1971 granted permission to the respondents Nos. 1 to 12 who were the applicants before him, to institute a suit as proposed. As already observed, it is this order which is challenged in this writ petition.

5. Shri Badiye the learned counsel appearing for the petitioners before us contended that the respondents Nos. 1 to 12 not being the members of the Society-Mandal are not persons having interest in the Trust and, therefore, had no locus standi to file an application under section 51 of the Act. According to Shri Badiye, therefore, the order passed by the Deputy Charity Commissioner granting permission is without jurisdiction. He further contended that even while considering the application filed by the respondents Nos. 1 to 12, the Deputy Charity Commissioner has not followed the procedure laid down by Rule 7 of the Bombay Public Trust Rules, 1951. According to Shri Badiye, the Deputy Charity Commissioner committed an error in not granting time to the petitioners to file their written-statement. According to the learned counsel, the order was passed by the Deputy Charity Commissioner in undue haste without any application of mind and without affording reasonable opportunity to the petitioners to put forward their case. Even otherwise, according to Shri Badiye, the respondents Nos. 1 to 12 have not proved or established that they were either the donors of the Society or their wards were studying in the school run by the Trust. Thus Shri Badiye contended that the said order is also illegal it being contrary to the provisions of the Act as well as the Rules framed thereunder.

6. Only the Deputy Charity Commissioner, who is respondent No. 19 before us, has chosen to appear before this Court and has filed his return. So far as other respondents are concerned, they have not appeared in these proceedings, though they were duly served. In reply to the allegations made in the petition it was contended by the Deputy Charity Commissioner that sufficient notice of hearing was given to the parties. According to him, the adjournment was, therefore, rightly rejected. He further contended that the petitioners had also filed their written statement during the course of hearing and the same was duly considered by him while passing the impugned order. After going through the material placed before him and after hearing the parties he came to the conclusion that there was a prima facie case and therefore, he granted permission under Section 51 of the Act to the respondents Nos. 1 to 12 to institute a suit On the basis of the material placed on record he further found that the respondents Nos. 1 to 12 were the persons having interest in the Trust. The various allegations made in the petition were, therefore, denied by the Deputy Charity Commissioner.

7. So far as the first contention raised by Shri Badiye namely, that the respondents Nos. 1 to 12 had no locus standi to file an application under section 51 of the Act, is concerned, in our opinion, on the basis of the material placed before the Deputy Charity Commissioner, he was right in coming to the conclusion that the respondents Nos. 1 to 12 were the persons having interest in the Trust. Section 2 (10) of the Act defines the phrase 'Person having interest' in the following terms:

'2 (10) 'Person having interest' includes-

(a) .....

(b) .....

(c) .....

(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.'

Initially in this definition clause in place of the word 'includes' the word 'means' was used by the Legislature. The word 'includes' was substituted by Bombay Act No. 28 of 1953. It is well settled that the word 'include' in the interpretation clause is intended to be enumerative and not exhaustive. It has an extending force and it does not limit the meaning of the term to the substance of the definition. When it is intended to exhaust the signification of the words interpreted, the word 'means' is used: -- See Chandrabhagabai Ashtekar v. State oil Bombay 1958 Nag LJ J72.

8. In this context we may also make a reference to often quoted observations of Lord Watson in Dilworth v. Commr. of Stamps 1899 A C 99 which are as under:

'The word 'include' is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include.'

This intention of the Legislature is further clear from the substitution of the word 'includes' for the word 'means' by Bombay Act No. 28 of 1953. Therefore, it is quite obvious that the definition of the phrase 'person having interest' is not exhaustive. In the present case having regard to the facts and circumstances brought on record it is not necessary to consider the wider question, because the Deputy Charity Commissioner has found as a fact that the respondents nos. 1 to 12 had applied for the membership of the trust and it is their allegation that their request was not allowed by the petitioners on account of some ulterior motive. He further found that the averments made in the application by the applicants before him that they were the donors of the Trust in question were not categorically denied by the petitioners, From the record it further appears that some of the trustees, namely, non-applicants Nos. 11, 13, 14, 15, 18 and 19 to the original application had filed their reply stating that they support the application. Such a reply was filed by them on 26th September 1971 before the Deputy Charity Commissioner. The Deputy Charity Commissioner has made a specific reference to this reply filed by those trustees and, therefore, taking a cumulative view of the whole material placed before him he came to the conclusion that the applicants before him, namely, the respondent Nos. 1 to 12, were the persons having interest in the Trust. Further, it is clear that admittedly some of the non-applicants who were the members of the Managing Body and the trustees of the trust had supported the cause raised by the applicants before the Deputy Charity Commissioner. Thus, in our opinion, the view taken by the learned Deputy Charity Commissioner cannot be said to be any way erroneous or perverse. Ultimately this finding recorded by the Deputy Charity Commissioner, is a finding of fact, which is not liable to be interfered with in this extraordinary jurisdiction of this Court under Article 226 or Article 227 of the Constitution of India. Therefore, it is not possible for us to accept the contention of Shri Badiye that the respondents Nos. 1 to 12 had no locus standi to file the application under Section 51 of the Act.

9. So far as the second contention raised by Shri Badiye, namely, that the petitioners were not given reasonable opportunity to put forward their case by the Deputy Charity Commissioner as the procedure followed by him was wholly illegal, is concerned, in our opinion, there is no substance in this contention also, in view of the facts and the material placed on record,

10. It is no doubt true by Rule 7 of the Rules a manner of inquiries has been laid down. This Rule 7 reads as under:

'7. Manner of inquiries -- Except as otherwise provided in the Act and these rules, inquiries under or for purposes of Sections 19, 22, 22A, 28, 29, 36, 39, 41D, 41E (3), 43 (2) (a), 47, 50A, 51, 54 (3) and 79AA (2) or any other inquiry which the Charity Commissioner may direct to be held for the purposes of the Act, shall be held, as far as possible, in the Greater Bombay Region in accordance with the Procedure prescribed for the trial of suit under the Presidency Small Cause Courts Act, 1882, and elsewhere under the Provincial Small Cause Courts Act, 1887. In any inquiry a party may appear in person or by his recognised agent or by a pleader duly appointed to act on his behalf:

Provided that any such appearance shall, if the Deputy or Assistant Charity Commissioner so directs, be made by the party in person,'

From the bare reading of this rule it is quite obvious that except as otherwise provided in the Act and the Rules in inquiries under or for purposes of the sections enumerated therein, which include Section 51, the authorities empowered to conduct an inquiry should follow the procedure laid down under the Provincial Small Cause Courts Act, 1887 as far as possible. Section 51 of the Act then lays down that if the Charity Commissioner after hearing the parties and making such enquiries (if any) as he thinks fit is satisfied that there is a prima facie case, then he may within a period of six months from the date on which the application is made grant or refuse his consent to the institution of such suit. Therefore, to some extent it is otherwise provided as to how the Charity Commissioner should hold an enquiry while deciding the application under Section 51 of the Act. The inquiries are to be held as per the procedure laid down by the Small Cause Courts Act, as far as possible. As to whether a reasonable opportunity was given to a party or not must depend on the facts and circumstances of each case. In the case before us, as already observed, the notices were issued by the Deputy Charity Commissioner to the petitioners before us and they were duly served upon them in the first or second week of September 1971. The hearing of the case was fixed on 26th Oct. 1971. Thus the petitioners had ample time to prepare their written-statement and to file it. It was not necessary for them to wait for the last date. 'Nothing has been brought on record to indicate as to why the written-statement could not have been prepared or filed within time. Section 51 (1) of the Act lays down a period of limitation that an order on such an application should be passed within a period of six months from the date on which the application is made. If the adjournment sought by the petitioners was granted by the Deputy Charity Commissioner, then obviously it was not possible for him to decide the application within a period of six months, as contemplated by Sub-section (1) of Section 51 of the Act. Further, after the adjournment was refused the petitioners had filed their say before the Deputy Charity Commissioner on 26th Oct. 1971. Not only this, they have further filed a detailed note of argument on 27th Oct. 1971. This reply as well as the notes of argument were duly considered by the Deputy Charity Commissioner. In this view of the matter, in our opinion it cannot be said in the present case that the petitioners were not' given reasonable opportunity to put forward their case before the Deputy Charity Commissioner

11. After considering the pros and cons of the whole matter, the Deputy Charity Commissioner came to the conclusion on the basis of the material placed 'before him that a prima facie case was made out by the respondents Nos. 1 to 12 applicants before him and, therefore, he granted his consent to institute the suit. In the present case it cannot be said that the Deputy Charity Commissioner has exercised the jurisdiction vested in him by law either arbitrarily or illegally. In any case, having regard to the facts and circumstances placed before us, in our opinion, this is not a fit case wherein the extraordinary powers of this Court either under Article 226 or Article 227 of the Constitution of India should be exercised.

12. In the result, therefore, the petition fails and is dismissed. However, in the circumstances of the case there will be no order as to costs.

13. Petition dismissed.


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