Shivaji Shikshan Sanstha vs Rajiv And Ors

Heard Shri P.K. Mohta, Advocate for the petitioner, Shri C.S. Dhabe, Advocate with Shri V.A. Dhabe, Advocate for respondent Nos.1 and 2 and

Shri N.R. Patil, A.G.P. for respondent No.3.

Rule. Rule made returnable forthwith.

By the present petition, the petitioner has challenged the order passed by the Assistant Charity Commissioner, by which the application filed by the

respondent Nos.1 and 2 under the Maharashtra Public Trusts Act, 1950 (for short “the Act of 1950â€) is allowed and respondent Nos.1 and 2 are

granted permission to file civil suit against the petitioner  Society. The impugned order is challenged mainly on the ground that it is passed without

giving notice to the petitioner  Society and without hearing the petitioner  Society. Relying on the proviso below SubÂRule (3) of Rule 27 of the

Maharashtra Public Trusts Rules, 1951 (for short “the Rules of 1951â€), it is argued by learned Advocate for the petitioner that consent to file civil

suit as per Section 51 of the Act of 1950 cannot be granted unless trustees of the public trust against which the civil suit is proposed to be filed are

given an opportunity of hearing.

Learned Advocate for respondent Nos.1 and 2 argued that there is nothing either in Section 51 of the Act of 1950 or in Rule 27 of the Rules of

1951 which casts an obligation on the applicant to implead the proposed defendants as nonÂapplicants in the application filed before the Charity

Commissioner under Section 51 of the Act of 1950. Referring to Clause (f) of SubÂRule (1) of Rule 27 of the Rules of 1951 it is argued that names

and addresses of the trustees and Management of the Public Trust of which the applicants are members were required to be given and this provision

has been complied by respondent Nos.1 and 2 and the names of trustees of Maharashtra Shivaji Shikshan Sanstha, Sihora were given in the

application filed before the Assistant Charity Commissioner under Section 51 of the Act of 1950.

Shri P.K. Mohta, learned Advocate for the petitioner has pointed out concluding portion of paragraph No.17 of the application which was filed by

respondent Nos.1 and 2 before the Assistant Charity Commissioner where it is stated that in the proposed civil suit, the contesting defendant would be

Shivaji Shikshan Sanstha, Amravati. At page 44 of the paper book of petition, copy of plaint of Special Civil Suit No.111/2018, which is filed by

respondent Nos.1 and 2 after seeking permission under Section 51 of the Act of 1950, is placed on record. In this civil suit, Shri Shivaji Shikshan

Sanstha i.e. present petitioner is shown as defendant No.4. Shri Maharashtra Shivaji Shikshan Sanstha, Sihora is not shown as defendant in the civil

suit. In these facts, I find that the submission made on behalf of respondent Nos.1 and 2 that Shri Shivaji Shikshan Sanstha, Amravati i.e. present

petitioner was not required to be impleaded as nonÂ​applicant in the application filed under Section 51 of the Act of 1950, is misleading.

Relying on the judgment given by this Court in the case of Bai W/o Mohamed Mulla and others V/s. Charity Commissioner, Bombay and others

reported in 1999(2) Mh.LJ.26, Advocate for respondent Nos.1 and 2 argued that the enquiry under Section 51 of the Act of 1950 is not a judicial

enquiry. In the present matter I am not required to deal with the issue as to whether the enquiry under Section 51 of the Act of 1950 is judicial enquiry

or not. Hence, the judgment relied upon by Advocate for respondent Nos.1 and 2 is not relevant.

Learned Advocate for the petitioner submitted that Section 51(1) of the Act of 1950 lays down that before passing any order the Charity

Commissioner should hear the “parties†which means the persons, who filed application under Section 51 of the Act of 1950 and the trust /

persons against whom civil suit is proposed to be filed. Advocate for petitioners pointed out that as per proviso below SubÂRule (3) of Rule 27 of the

Rules of 1951 also, the Charity Commissioner has to hear the trustees before he grants consent under Section 51 of the Act of 1950 to file civil suit.

Obviously, the term “trustees†referred in proviso below SubÂRule (3) of Rule 27 of the Rules of 1951 refers to the public trust which is the

proposed defendant in the civil suit proposed to be filed. By no stretch it can be said that the term “trustees†in the proviso below SubÂRule(3) of

Rule 27 of the Rules of 1951 refers to the trustees of the public trust on whose behalf application under Section 51 of the Act of 1950 is filed.

Apart from the mandate of the provisions of Section 51 of the Act of 1950 and the proviso below SubÂ​Rule (3) of Rule 27 of the Rules of 1951, the

elementary principle of audi alteram partem also casts an obligation on the Authority under the Act of 1950 to hear the party against whom civil action

is proposed. If the submission made on behalf of respondent Nos.1 and 2, that notice to the proposed defendant and opportunity of hearing to the

proposed defendant is not contemplated by the provisions of Section 51 of the Act of 1950 and proviso below SubÂRule (3) of Rule 27 of the Rules of

1951 is accepted, it would amount to misreading the provisions and causing infraction of right of the affected party guaranteed by principles of natural

justice.

In the facts of the case, I find that the consent granted by the Assistant Charity Commissioner under Section 51 of the Act of 1950 to respondent

Nos.1 and 2 to file civil suit against the petitioner  Society, without giving notice and without granting hearing to the petitioner â€" Society, is illegal

and unsustainable in law.

Learned Advocate for respondent Nos.1 and 2 submitted that after grant of consent, civil suit is filed and the petitioner  Society has submitted to

the jurisdiction of the civil Court and participated in the proceedings and at this stage, hearing on application for temporary injunction is going on. In my

view, the filing of civil suit will not legalize the illegality committed by the Assistant Charity Commissioner while granting sanction for filing of the civil

suit. The civil suit filed against petitioner  Society could not have been filed without sanction by the Assistant Charity Commissioner. Thus, legal

sanction for filing the civil suit is sine qua non and if the foundation i.e. sanction itself goes, the civil suit also has to go.

Hence, the following order:

(i) The order passed by the Assistant Charity Commissioner on Application No.1/2018 on 3rd July, 2018 is set aside.

(ii) The matter is remanded to the Assistant Charity Commissioner, Bhandara for deciding the application afresh.

(iii) Needless to say that the Assistant Charity Commissioner, Bhandara shall ensure that the petitioner  Society i.e. Shri Shivaji Shikshan Sanstha,

Amravati is impleaded as nonÂ​applicant in the proceedings and it is granted opportunity to put forth its case.

(iv) Learned Civil Judge, Senior Division, Bhandara shall pass appropriate orders regarding maintainability of the suit considering the effect of this

judgment on the tenability of the civil suit.

(v) The petitioner and the respondent Nos.1 and 2 shall appear before the Assistant Charity Commissioner, Bhandara on 2nd August, 2019 at 11 a.m.

(vi) Rule is made absolute in the above terms.

In the circumstances, the parties to bear their own costs.