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TMI Blog1997 (3) TMI 631X X X X Extracts X X X X X X X X Extracts X X X X ..... 164/92 11/90 3. 1629/96 166/92 12/91 4. 1630/96 168/92 2/89 5. 1631/96 204/92 12/91 6. 1686/96 166/92 12/91 7. 1687/96 167/92 11/90 8. 1688/96 168/92 2/89 9. 1689/96 204/92 12/91 10. 1691/96 164/92 11/90 2A. The facts, which are necessary for the disposal of these appeals are as follows:- Earlier there was a Trust by name Nasik Diocosan Trust Association Ltd., which was registered as a Company under the Companies Act in 1943. Subsequently the said Trust came to be registered as a Public Trust under Bombay Public Trust Act, 1950 on 13-7-1954 (herein after referred to as the Act). Then the Assistant Charity Commissioner prepared a scheme for the said Trust in 1967. U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the appellants partly and he made his own submissions regarding some of the amendments made by the Additional District Judge. The learned Counsel appearing for the Bishop and other respondents generally supported the impugned order of the learned Additional District Judge. Mr. P.N. Joshi the learned Counsel for the Bishop also contended that the present appeals are in the nature of a second appeal within the meaning of section 100 C.P.C. and therefore the High Court cannot interfere unless any substantial question of law arises for consideration and according to him no such substantial question of law arises and therefore the appeals are not maintainable and are liable to be dismissed. He fully supported the finding of the learned District Judge that the Bishop should be ex-officio Chairman of the Trust. 4. In the light of the arguments addressed before me, the points that fall for determination in these appeals are:- (i) Whether the present appeals should be treated as second appeals within the meaning of section 100 C.P.C. and secondly the Court cannot go into the merits of the dispute between the parties unless there substantial question of law arises for consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingle Judge of this Court in another case Maqbul Ahmed Miya Girav v. Hidayatulla Baldi and another. A contrary view was taken by a learned Single Judge of this Court in a case reported in 1992 Mh.L.J. 230 Godawaribai wd/o Manilal Trivedi v. Rambhau Madhaorao Fating and others. There it was pointed out that though appeal to High Court is in the nature of second appeal, it does not become a second appeal under the Code of Civil Procedure within the meaning of section 100 C.P.C. Question is as to which of the two conflicting views to be followed by me. At one stage, there was a discussion at the bar, whether the question should be referred to a larger Bench because of these conflicting views. Then it was argued that the later decision should prevail over the earlier decision. I have heard lengthy arguments on the merits of the case spread over for 8 days. The litigation pertaining to this Trust has been going on for the last 7-8 years. There are allegations of mismanagement against the trustees. It is also admitted fact that elections have not been held in the Trust from the beginning. Even the learned Counsel for the Bishop who raised a question of maintainability of appeal alt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. Similarly, under section 41-E of the Act, the Charity Commissioner is given certain powers to pass orders of injunction, against that order an aggrieved party can apply to the Court and then under section 41-E(6) appeal lies to the High Court as if it is a decree appealable to the High Court. Under section 47(2) of the Act, the Charity Commissioner is given powers to appoint a trustee or discharge a trustee. This order of Commissioner is made appealable directly to the High Court without approaching the District Court as provided in sub-section (5) of section 47. There can be no dispute as far as appeal under section 47(5) of the Act is concerned, it would be a first appeal. There is only one order of the Charity Commissioner against which the appeal is provided to the High Court. As far as the orders under section 41-E(6), 41-D(6) and section 72(1) of the Act are concerned, there is a first appeal to the District Judge, and then against the order of the District Judge appeal lies to the High Court. Therefore, appeals under those three sections are in the nature of second appeals to the High Court. But still the wordings used in respect of those second appeals and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d appeal also in section 56(2) and other sections mentioned above. That means, advisedly the Legislature has used same words both regarding First Appeal and the second appeal to the High Court and therefore, both the First Appeal and Second Appeal will have to be decided by the High Court without having any restrictions on it's powers. There cannot be any dispute that as far as the first appeal is concerned the powers of the High Court are unlimited and unrestricted. But as far as the second appeal under C.P.C. are concerned, the High Court can entertain the appeal, only on a substantial question of law. But no such restriction are found on the powers of the High Court in a second appeal provided under the Act. 9. As far as applicability of the Code of Civil Procedure to the authorities under the Act are concerned, there are two sections, which are section 73 and section 76. Section 73 provides that the provisions of Civil Procedure Code are applicable to officers conducting inquiries under the Act, only to the extent of proof of facts by affidavit, summoning witnesses, discovery and inspection and issuing of Commission. Only few provisions of the C.P.C. are made applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hough second appeal are provided under section 100 C.P.C., it is subject to provisions in C.P.C. or any other law for the time being in force. If an appeal provided in other law does not provide any such condition about exercise of powers by the High Court, then we cannot include restrictions or limitations of second appeals under C.P.C. to second appeals under different enactments. 12. We have already seen that the learned Single Judge of this Court in the case of Godawaribai mentioned above has taken a view that appeal to High Court under section 72(4) is not subject to limitation of second appeal under section 100 C.P.C. In this connection I may also refer to judgment of a learned Single Judge of the Gujarat High Court reported in XVIII G.L.R. 488 Miya Mohamed Abdulkarim Jariwala and anr. v. Collector of Surat and others, (By His Lordship Justice A.M. Ahmadi, as he then was, presently the Chief Justice of India). He also took the view that there is nothing to limit the powers of the High Court in section 72(4) of the Act, unlike the limitation provided in second appeal under section 100 C.P.C. It was pointed out that the limitation provided in section 100 C.P.C. cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orities, when they are cited before another Judge, he can follow either of the ruling, which he found to be better in point of law, than the other. In my view the decision in Godawaribai's case is in consonance to the provisions of the Act, which I have discussed above. Further, I have referred to the decision of the Apex Court in , where it has been pointed out that the power of second appeal under the special Act is wider than the second appeal under section 100 C.P.C. In view of the decision of the Apex Court, it has to be held that the wording of section 72(4) of the Act is wider, uncontrolled and unlimited than the powers of second appeal under section 100 C.P.C. Hence, in view of the authoritative pronouncement of the Apex Court, I have no hesitation to hold that the power under section 72(4) of the Act is not limited in any way by invoking section 100 C.P.C. Since, we are concerned with a special statute, with special provisions of appeal and special forum, we need not be guided by the limitations of a second appeal under section 100 C.P.C. Hence, there is no necessity to refer the point to a Division Bench in view of the decision of the Apex Court on the point and al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st was the Districts of Dhulia, Jalgaon, Nasik, Ahmednagar, Aurangabad, Parbhani, Beed, Nanded, Jalana, Shirur and Ahwa-. As per the order of the Asst. Charity Commissioner the area of operation has been declared to be the whole of India. The learned District Judge by his impugned order has restored the operation of the Trust as per scheme of 1967 and set aside the amendment made by the Asst. Charity Commissioner. It was argued before me on behalf of the appellant and Mr. Balkundi that the area of operation should be either the whole of India or at least the State of Maharashtra and it need not be confined to Districts mentioned by the learned District Judge. On behalf of the respondents, it was argued that the order of the learned District Judge on this point does not suffer from any infirmity and hence, it should not be interfered with. 17. In my view the question of area of operation should be left to the trustees and members of the General Body of the Trust. No evidence has been let in before the Court to show as to what should be the area of operation and whether the area should be increased? In the absence of such evidence the area of operation as mentioned in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 500 members or below should be having only one member. It is not a case of a big Church having more representation at the rate of one member per each 500 members of the Church. In other words it is not a case of Church having 5000 membership has to nominate 10 members to the Trust. If the total membership of the Church is less than 500, then the Church can nominate only one member and if the total membership is above 500, then the church can nominate two members. I do not find any illegality or infirmity in the amendment done by the learned District Judge. I, therefore, confirm the finding of the learned District Judge on this point. However even on this point, it is open to the general body to express its opinion and seek amendment of the membership clause in the scheme of the Trust and then it is open to the Charity Commissioner to decide that question one way or other after knowing the opinion of the general body. 20. The next objection to the order of the learned District Judge is about the qualification for becoming a member of the Trust. According to the learned Asst. Charity Commissioner any person belonging to Christian community having origin of Anglican can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex-officio Chairman. The learned Counsels for the appellants have seriously objected to this clause. Their contention is that when the Board of trustees are elected by the members of the Trust, then Chairman also should be elected by the elected trustees and the Bishop cannot be thrusted as ex-officio Chairman. On the other hand the learned Counsels for some of the respondents including the Bishop contended that since the Trust in question is a religious-cum-charitable Trust, a presence and guidance of Bishop is necessary and therefore, the Bishop should continue as an ex-officio Chairman of the Trust. 23. When once we have provided that the trustees should be elected, then as natural corollary the Chairman also be elected from among the trustees. It may be that in olden days under 1943 provisions or even earlier there was provision for the Bishop being an ex-officio Chairman. We must bear in mind that India has adopted a democratic way of living under the Constitution and elected Government or elected body is basis of the democratic principle. Then idea of an ex-officio Chairman is an outdated idea. In the modern concept particularly in view of our Country having adopted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am disposing of to-day. In this letter, the Bishop says that the trustees will have to take care of the property of the Trust, carry on day to day administration, manage the finances etc. Then, he mentions as follows:- I find it very difficult to attend to this single handedly. There are other important matters which need my attention in the Diocese. I also have to play some role in the C.N.I. as well as in the international Church circles. Considering these factors I have decided to appoint an Advisory Committee to deal with...............matters. Then he has put 9 clauses in that letter. The Advisory Committee has been constituted to deal with all finances, all property matters, all legal matters etc. It is therefore seen that the present Bishop himself has put it in writing in black and white that it is very difficult for him to manage the day to day affairs of the Trust since, he has to attend to the other works as Bishop etc. He has, therefore, appointed Advisory Committee to assist him and also to attend to certain works. This clearly shows that the Bishop cannot be expected to attend to the day to day affairs of the Trust. He being the religious head of the diocese, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the ex-officio trustees. He can attend meeting of the Trust as an ex-officio trustee and give his valuable advice and guidance. He will not be the Chairman of the Trust, but he can be a Member of Board of trustees by virtue of his position as a Bishop of Diocese. The Christians have eat confidence and Trust and also reverence in the Bishop, who is the religious head of the diocese. Therefore, his presence would be very necessary in the Board of trustees. This can be taken care by making the Bishop as an ex-officio Member of the Trust Committee. Once the Bishop becomes an ex-officio Member of the Trust Committee, then he will be entitled to stand for election for the post of the chairman, to be elected from among the trustees. If he can muster support of the trustees, then the Bishop can be elected as Chairman of the trustees. As already stated some Bishops may not be interested in becoming Chairman, in which case the trustees can elect a willing person as a Chairman. Therefore, the amendment made by the learned District Judge making Bishop as ex-officio Chairman of the Trust is hereby set aside. However, the Bishop of Nasik Diocese shall be an ex-officio member of the Board of tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not allow enrolling of any new member till the elections are held. As far as Church members are concerned, he must find out whether all the Churches have nominated their representatives or not, otherwise he will write to all the Churches to nominate one or two members as representing a particular Church depending upon the membership of the Church. (One representative if there are 500 members in a Church and two representatives if the Church has more than 500 members). Those Church members are also entitled to vote in the election of the Board of trustees in addition to individual members who have enrolled themselves as members by paying necessary subscription as per scheme. The acting Chairman and ad-hoc trustees are entitled to look after the day to day administration of the Trust and for holding elections and handing over charge to the newly elected body. This ad-hoc committee will have no powers of taking any policy decisions or about alienating the property of the Trust. 29. In the result all the 10 appeals are allowed partly as follows:- (i) In Clause (5) of the scheme, the basic qualification for becoming a member of the Trust is that he should a person belonging t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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