Full Judgment Text
2017:BHC-AS:14971
j-fa-1327-1328-1244-1250-wp-12089-15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1327 OF 2015
WITH
CIVIL APPLICATION NO. 4159 OF 2015
WITH
CIVIL APPLICATION NO. 2848 OF 2016
IN
FIRST APPEAL NO. 1327 OF 2015
The Bombay Diocesan Trust
Association Pvt. Ltd. & Ors. .. Appellants
vs.
Rev. Dr. P. B. Amolik & Ors. .. Respondents
Mr. A. A. Kumbhakoni – Senior Advocate with Mr. Shardul
Singh i/b. Ivor Peter D'Cruz for Appellant.
Mr. G. S. Godbole with Mehul Shah and Swapnali Desai for
Respondent Nos. 3 and 4.
Mr. Vishvajit Sawant i/b. Daljeet Singh Bhatia for Respondent
Nos. 4,7, 9 and 10.
Mr. Salim M. Sayeed for Respondent No. 12.
Mr. Yogesh Dabke AGP for State.
WITH
FIRST APPEAL NO. 1328 OF 2015
WITH
CIVIL APPLICATION NO. 4162 OF 2015
WITH
CIVIL APPLICATION NO. 2964 OF 2016
IN
FIRST APPEAL NO.1328 OF 2015
The Bombay Diocesan Trust
Association Pvt. Ltd. & Ors. .. Appellants
vs.
Lt. Col. A. M. Gnanakan & Ors. .. Respondents
Mr. A. A. Kumbhakoni – Senior Advocate with Mr. Shardul
Singh i/b. Ivor Peter D'Cruz for Appellant.
Mr. Vishvajit Sawant i/b. Daljeet Singh Bhatia for Respondent
Nos. 1 to 4.
Dinesh Sherla page 1 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
Mr. G. S. Godbole with Mehul Shah and Swapnali Desai for
Respondent Nos. 5 and 6.
Mr. Salim M. Sayeed for Respondent No. 12.
Mr. Yogesh Dabke AGP for State.
WITH
FIRST APPEAL NO. 1244 OF 2015
WITH
CIVIL APPLICATION NO. 4022 OF 2015
AND
CIVIL APPLICATION NO. 2505 OF 2016
IN
FIRST APPEAL NO. 1244 OF 2015
Nitin J. Salve .. Appellant
vs.
James Baker & Ors. .. Respondents
Mrs. P. A. Tatake for Appellant.
Mr. G. S. Godbole with Mehul Shah and Swapnali Desai for
Respondent Nos. 3 and 4.
Mr. Vishvajit Sawant i/b. Daljeet Singh Bhatia for Respondent
Nos. 5, 7, 9 and 11.
Mr. Salim M. Sayeed for Respondent No. 12.
Mr. Yogesh Dabke AGP for State.
WITH
FIRST APPEAL NO. 1250 OF 2015
WITH
CIVIL APPLICATION NO. 4056 OF 2015
IN
FIRST APPEAL NO. 1250 OF 2015
Rev. Dr. P. B. Amolik & Anr. .. Appellants
vs.
James Baker & Ors. .. Respondents
Mrs. V. V. Thorat i/b. Shah Legal for Appellants.
Mr. G. S. Godbole with Mehul Shah and Swapnali Desai for
Respondent Nos. 1 and 2.
Mr. Vishvajit Sawant i/b. Daljeet Singh Bhatia for Respondent
Nos. 4, 7, 8 and 9.
Mr. Salim M. Sayeed for Respondent No. 10.
Mr. Yogesh Dabke AGP for State.
Dinesh Sherla page 2 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
WITH
WRIT PETITION NO. 12089 OF 2015
James Baker & Anr. .. Appellants
vs.
Lt. Col. A. M. Gnanakan & Ors. .. Respondents
Mr. G. S. Godbole with Mehul Shah and Swapnali Desai for
Appellant.
Mr. Shardul Singh i/b. Ivor Peter D'Cruz for Respondent
No. 1.
Mr. Salim M. Sayeed for Respondent No. 10.
Mr. Yogesh Dabke AGP for State.
Mr. S. V. Pimple – Assistant Charity Commissioner present in
Court.
Mr. Sameer Vaidya with Robin Thomas for Intervenor
Mr. Sachin Bhujbal – Inspector from Charity Commissioner's
Office present in Court.
CORAM : M. S. SONAK, J.
DATE OF JUDGMENT : 14 June 2017
JUDGMENT:
1] Heard learned counsel for the parties. At their request
and with their consent these matters are disposed of by common
judgment and order.
2] Even otherwise, the challenge in each of the appeals is
to the judgment and order dated 30 October 2015 made by the City
Civil Court, Mumbai in appeals under section 41D (5) of the
Maharashtra Public Trusts Act, 1950 (MPT Act), which is a common
order disposing of the two appeals which were numbered as Charity
Application Nos.1 and 2 of 2013. Writ Petition No. 12089 of 2015 is
instituted by James Baker and another, who were respondents in the
appeals before the Civil Civil Court, Mumbai and who claimed to be
Dinesh Sherla page 3 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
aggrieved by certain observations in the impugned judgment and
order dated 30 October 2015, even though, they have no grievance
as regards the final outcome, i.e., dismissal of the two appeals by the
Civil Civil Court, Mumbai. In such circumstances, it is only
appropriate that the appeals and the writ petition are considered
and disposed of by common judgment and order.
3] First Appeal Nos.1327 of 2015 and 1328 of 2015 have been
instituted by the following appellants:
1] The Bombay Diocesan Trust Association Pvt. Ltd.;
2] Vipul Rawade
3] Kishore Pendurkar
4] Sunil Rawade
4] The two appeals basically challenge the impugned judgment
and order dated 30 October 2015 made by the City Civil Court,
Mumbai on the grounds that the impugned order terminates the
tenure of appellant Nos.2,3 and 4, even though, the said appellants
were not impleaded as parties in original applications under section
41D of the MPT Act, seeking inter alia for removal of some of the
trustees of the Bombay Diocesan Trust Association Pvt. Ltd. (Trust) .
These appellants point out that they had in fact, vide applications
dated 12 October 2012, applied to the Joint Charity Commissioner
taking up the Original Application No. 28 of 2009 under section
41D of the MPT Act, for leave to intervene or for their impleadment,
expressing apprehension that any order in the said proceedings
might affect them. They point out that by order dated 16 October
2012, the Joint Charity Commissioner rejected the application for
impleadment/intervention by observing that since there are no
Dinesh Sherla page 4 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
allegations against appellant Nos.2 to 4, there was no necessity of
permitting their intervention or impleadment. They point out that in
the order dated 16 October 2012, the Joint Charity Commissioner
had also observed that there was no question of making any orders
against persons who were not parties to the proceedings.
5] By judgment and order dated 17 December 2012, however,
the Charity Commissioner partly allowed Application No. 28 of 2009
under section 41D of the MPT Act and removed almost ten trustees,
who were styled as opponent Nos.1 to 10 in Application No. 28 of
2009 before the Joint Charity Commissioner. The Joint Charity
Commissioner then proceeded to appoint an Administrator to
manage the affairs of the Trust, thereby at least indirectly,
terminating the tenure of appellant Nos.2,3 and 4, against whom
there were neither any allegation as contemplated by section 41D of
the MPT Act and nor were they impleaded as parties to the
proceedings under section 41D of the MPT Act as aforesaid.
6] The trustees, who were actually ordered to be removed by the
Joint Charity Commissioner vide judgment and order dated 17
December 2012 appealed to the City Civil Court, Mumbai under
section 72 (1) of the MPT Act, which appeals came to be numbered
as Charity Application Nos.1 and 2 of 2013.
7] The appellants in First Appeal Nos.1327 and 1328 of 2015
took out Chamber Summons Nos. 734 and 735 of 2014 before the
City Civil Court, Mumbai in pending appeals, seeking their
impleadment, inter alia, on the ground that even they were affected
by the impugned judgment and order dated 17 December 2012
Dinesh Sherla page 5 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
made by the Joint Charity Commissioner. The chamber summons
were allowed by orders dated 1 July 2014 and the appellants, were
impleaded as parties in the pending appeals.
8] The City Civil Court Mumbai vide judgment and order dated
27 March 2015, allowed Charity Application Nos.1 and 2 of 2013,
set aside the Joint Charity Commissioner's order dated 17 December
2012 and remanded the matter to the Joint Charity Commissioner
for fresh consideration of Application NO.28 of 2009 under section
41D of the MPT Act after impleadment of all parties and after afford
of opportunities to all parties to tender evidence/additional
evidence.
9] The original applicants in Application No. 28 of 2009, i.e.,
James Baker and another, instituted a second appeal under section
41D (6) of the MPT Act questioning the judgment and order dated
27 March 2015 made by the City Civil Court, Mumbai. By the
judgement and order dated dated 22 June 2015, the second appeals
were allowed, the common judgment and order dated 27 March
2015 made by the City Civil Court, Mumbai in Charity Application
Nos.1 and 2 of 2013 was set aside and the matter was remanded to
the City Civil Court, Mumbai for disposal of the Charity Application
Nos.1 and 2 of 2013, in accordance with law and on their own
merits.
10] Pursuant to remand as aforesaid, the City Civil Court, Mumbai
vide impugned judgement and order dated 30 October 2015, has
dismissed the Charity Application Nos.1 and 2 of 2013, thereby
confirming the judgment and order dated 17 December 2012 made
Dinesh Sherla page 6 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
by the Joint Charity Commissioner, removing the ten trustees of the
Trust in exercise of powers conferred by section 41D of the MPT Act
and appointing an Administrator to manage affairs of the Trust.
11] First Appeal No.1244 of 2015 and First Appeal No. 1250 of
2015 have been instituted by the trustees, who were actually
ordered to be removed vide judgment and order dated 17 December
2012 made by the Joint Charity Commissioner under section 41D of
the MPT Act. As noted earlier, the judgment and order dated 17
December 2012, stands confirmed by the impugned judgment and
order dated 30 October 2015 made by the City Civil Court, Mumbai.
In effect therefore, all the four appeals, question the impugned
judgment and order dated 30 October 2015 made by the City Civil
Court, Mumbai, affirming the judgement and order dated 17
December 2012 made by the Joint Charity Commissioner under
section 41D of the MPT Act.
12] Mr. Kumbhakoni, learned senior advocate for the appellants in
First Appeal No.1327 of 2015 and 1328 of 2015, has submitted that
the judgments and orders dated 17 December 2012 and 30 October
2015, in effect, curtail the tenure of appellant Nos.2, 3 and 4 in the
said appeals as trustees of the Trust. He submits that as against the
said appellants there were neither any allegations in Original
Application No. 28 of 2009 instituted before the Joint Charity
Commissioner nor were said appellants impleaded as parties to the
said Application No. 28 of 2009. The attempt on the part of the
appellants to seek impleadment was turned down by the Joint
Charity Commissioner by specifically observing that there were no
allegations against the said appellants and accordingly, there was no
Dinesh Sherla page 7 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
question of making any adverse orders as against such appellants. In
such circumstances, Mr. Kumbhakoni submits that the impugned
orders, to the extent, they curtail tenure of appellant Nos.2,3 and 4
and thereby, indirectly, remove the said appellants as trustees of the
said Trust, violate the principles of natural justice and fair play and
therefore, are required to be set aside qua the said appellants.
13] Mr. G. S. Godbole, learned counsel for James Baker and
another, the original applicants in Application No. 28 of 2009 under
section 41D of MPT Act, submits that appellant Nos.2,3 and 4 were
admittedly impleaded as parties before the appellate court, i.e., the
City Civil Court, Mumbai in Charity Application Nos.1 and 2 of
2013. He submits that consequent upon the removal of most of the
trustees, i.e., ten trustees vide judgment and order dated 17
December 2012, the Joint Charity Commissioner, was acted well
within his powers to appoint an Administrator to govern the affairs
of the Trust. Accordingly, Mr. Godbole submits that this is not a case
of removal of appellant Nos.2,3 and 4 as trustees of the said Trust,
but rather, this is a case where the Joint Charity Commissioner, in
the exercise of powers vested him in under section section 41D of
MPT Act has rightly appointed an Administrator to govern the affairs
of the Trust, which, affairs, could obviously, have not been governed
only by appellant Nos.2,3 and 4, after, all the trustees, other than
them, stood removed vide judgment and order dated 17 December
2012 made by the Joint Charity Commissioner. For these reasons,
Mr. Godbole submits that there is absolutely no infirmity in the
orders dated 17 December 2012 and 30 October 2015 and the two
first appeals, i.e., First Appeal No. 1327 of 2015 and 1328 of 2015
may be dismissed.
Dinesh Sherla page 8 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
14] In the alternate, Mr. Godbole submits that the tenure of
appellant Nos.2,3 and 4 has long ago ended. Accordingly, he submits
that First Appeal No.1327 of 2015 and First Appeal No. 1328 of
2015 have been rendered infructuous and may be dismissed on the
said ground as well.
15] In this case, appellant Nos.2,3 and 4 should have been
permitted to intervene in Application NO. 28 of 2009 instituted by
James Baker and another, i.e., before the Joint Charity
Commissioner at least at the stage when the Joint Charity
Commissioner formed a tentative opinion that almost all the trustees
of the Trust, except appellant Nos.2,3 and 4 deserved to be removed
as trustees under section 41D of the MPT Act and that appointment
of Administrator might be necessary to govern the affairs of the
Trust. As noted earlier, appellant Nos.2,3 and 4 had in fact applied
for intervention/impleadment. Such application was however,
rejected by the Joint Charity Commissioner on 16 October 2012 by
making the following observations :
“ there are no allegation against the party proposed to be added
as respondent. No orders will be passed against the applicant as
he is not party to the proceeding and unless opportunity of
hearing is granted to him. Hence, at this stage, Mr. Vipul Rawde
cannot be added as party Opponent No.11”.
16] Mr. Kumbhakoni, learned senior advocate for the appellants
in First Appeal Nos.1327 of 2015 and 1327 of 2015, in the
circumstances, is right in contending that there has been violation of
principles of natural justice, at least insofar as appellant Nos.2,3 and
4 are concerned. Their tenure was curtailed on account of
appointment of Administrator vide order dated 17 December 2012
Dinesh Sherla page 9 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
in Application No. 28 of 2009 made by the Joint Charity
Commissioner in exercise of powers conferred upon him under
section 41D of the MPT Act. Prior to such curtailment, however,
appellant Nos.2 to 4 were deprived opportunity of hearing, even
though, they had specifically applied for such opportunity by taking
out applications for intervention/impleadment.
17] However, it appears that by virtue of certain interim orders
made by this court, appellant Nos.2,3 and 4 secured at least some
limited protection. Further, there is no dispute whatsoever that the
term/tenure of appellant Nos.2,3 and 4 as trustees has long ended.
The impugned orders neither visit appellant Nos.2,3 and 4 with any
stigma nor do the impugned orders impose any embargo upon
appellant Nos.2,3 and 4 to recontest elections and seek yet another
tenure, in terms of the trust deed and law. Taking into consideration
such circumstances, no useful purpose will be served by interfering
with the impugned judgments and orders, at this stage, at the behest
of the appellants in First Appeal No.1327 of 2015 and 1328 of 2015.
However, the two first appeals, i.e., First Appeal No.1327 of 2015
and First Appeal No. 1328 of 2015 can be disposed of by clarifying
that nothing in the impugned orders cast or shall be construed as
casting any stigma upon appellant Nos.2,3 and 4 or rendering them
ineligible to contest for the position of trustees of the said Trust, at
the election/election process. First Appeal No.1327 of 2015 and
1328 of 2015 are disposed of in the aforesaid terms.
18] Mr. Godbole, learned counsel for Mr. James Baker and
another, the applicants in Application No. 28 of 2009 before the
Joint Charity Commissioner urged that First Appeal No.1244 of
Dinesh Sherla page 10 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
2015 and 1250 of 2015 may also be disposed of as infructuous,
since the tenure of the appellants in the appeals has also ended, and
even the period for which the appellants in the said first appeals
were directed to be suspended, has since expired. He submits that
the charges against the appellants in First Appeal No. 1250 of 2015
are quite grave and the same have been held as proved, concurrently
by the Joint Charity Commissioner as well as the City Civil Court,
Mumbai. On this basis, Mr. Godbole submits that First Appeal
No.1244 of 2015 and 1250 of 2015 deserve dismissal with
exemplary costs.
19] Ms Prachi Tatake and Mrs. V.V. Thorat, learned counsel for the
appellants in First Appeal Nos.1244 of 2015 and 1250 of 2015,
dispute the contentions of Mr. Godbole and submit that the two first
appeals cannot be regarded as infructuous, at least for the following
two reasons:
a] The impugned orders cast stigma upon the appellants,
which needs to be wiped out in these appeals:
b] In terms of the impugned orders, Rev. Dr. P.B. Amolik,
the appellant in First Appeal No. 1250 of 2015, has been
permanently removed as trustee. This means that Rev. Dr. P.B.
Amolik has been debarred from contesting to the position of
trusteeship, for life . Mrs V.V. Thorat submits that apart from
such direction being contrary to law, unless, such direction is
set aside in such appeal, Rev. Dr. P.B. Amolik will secure no real
redressal in the matter.
20] There is merit in the contention of Ms Tatake and Mrs.Thorat,
learned counsel for the appellants in First Appeal Nos.1244 of 2015
Dinesh Sherla page 11 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
and 1250 of 2015. The impugned orders, undoubtedly, cast a stigma
upon the appellants in the said appeals. The impugned order also
purports to debar the appellants in First Appeal No.1250 of 2015
from holding the position of trustee of the Trust forever. In such
circumstances, the first appeals cannot be disposed of as
infructuous, even though, the tenure of the trustees has ended and
fresh elections will have to be held in the matter.
21] Ms Tatake and Mrs. V.V. Thorat have attacked the findings of
fact recorded by the Joint Charity Commissioner in his judgment
and order dated 17 December 2012 and by the City Civil Court,
Mumbai in its judgment and order dated 30 October 2015. They
submit that there is no evidence to link the appellants with the
charges levelled against them and in any case, the charges, were by
no means sufficient for initiation of action under section 41D of the
MPT Act. In such circumstances, they submit that the impugned
judgments and orders made by the Joint Charity Commissioner and
the City Civil Court at Mumbai are liable to be set aside.
22] On the other hand, Mr. Godbole, learned counsel for the
respondents, who had instituted Application No. 28 of 2009 seeking
action under section 41D of the MPT Act submits that there is
overwhelming evidence on record, which establishes the charges
leveled against the appellants and therefore, there is no case made
out to interfere with the impugned judgments and orders.
23] Mrs. Thorat, learned counsel for the appellants in First Appeal
No.1250 of 2015, i.e., Rev. Dr. P.B. Amolik, in the alternate submits
that the removal of the appellant as trustee for life, is clearly a
Dinesh Sherla page 12 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
direction which is in excess of jurisdiction vested in the Joint Charity
Commissioner. She submits that there is no provision under the MPT
Act, which entitles the Joint Charity Commissioner to make an order
of such nature. She submits that the Joint Charity Commissioner, in
making such an order, has virtually, re written the provisions of
section 41D of the MPT Act, which is clearly impermissible. She
therefore, submits that even if the charges leveled against Rev. Dr.
P.B. Amolik, are to be accepted as proved, there is absolutely no
authority or justification to debar Rev. Dr. P.B. Amolik, to be the
trustee of the Trust for life. She points out that Rev. Dr. P.B. Amolik,
is 84 years of age and in the evening of his life, there is no
justification that he suffers such a harsh direction, particularly, when
such direction was never justified either on facts or in law.
24] Mr. Godbole, learned counsel for the respondents, who had
originally instituted Application No. 28 of 2009 before the Joint
Charity Commissioner submits that the impugned order
disqualifying Rev. Dr. P.B. Amolik, to hold the trusteeship for life is
very much justified, both on facts as well as in law. He submits that
if Rev. Dr. P.B. Amolik, is permitted to contest the election, despite,
such serious charges having been held as proved against him, the
very governance of the Trust will be serious jeopardy. He submits
that the provision contained in section 41D of the MPT Act is
required to be interpreted in light of the statement of objects and
reasons as also other provisions of the MPT Act. Thus construed,
Mr.Godbole submits that there is no legal infirmity whatsoever in
the impugned judgment and order and the direction made therein.
Dinesh Sherla page 13 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
25] Based upon the pleadings as well as the submissions made by
learned counsel for the parties, the following two main points arise
for determination in First Appeal No.1244 of 2015 and 1250 of
2015.
i] Whether the charges leveled against the appellants
were sufficient and proved so as to entitle the Joint Charity
Commissioner to suspend/remove the appellants as trustees
of the Trust in exercise of powers conferred upon him
under section 41D of the MPT Act ?
ii] Whether the Joint Charity Commissioner is
empowered under section 41D of the MPT Act to dismiss
Rev. Dr. P.B. Amolik as trustee of the Trust “ forever” ?
26] In order to evaluate the rival contentions, at the outset,
reference is necessary to the provisions contained in section 41D of
the MPT Act, which read thus:
"41D. (1) The Charity Commissioner may, either on
application of a trustee or any person interested in the trust,
or on receipt of a report under Section 41B or suo motu may
suspend, remove or dismiss any trustee of a public trust, if
he
(a) makes persistent default in the submission of accounts
report or return;
(b) wilfully disobeys any lawful orders issued by the
Charity Commissioner under the provisions of this Act or
rules made thereunder by the State Government;
(c) continuously neglects his duty or commits any mal
feasance or misfeasance, or breach of trust in respect of the
trust;
(d) misappropriates or deals improperly with the
properties of the trust of which he is a trustee; or
Dinesh Sherla page 14 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
(e) accepts any position in relation to the trust which is
inconsistent with his position as a trustee;
(f) if convicted of an offence involving moral turpitude.
(2) When the Charity Commissioner proposes to take
action under subsection (1), he shall frame charges against
the trustee or the person against whom action is proposed to
be taken and give him an opportunity of meeting such
charges of testing the evidence adduced against him and of
adducing evidence in his favour. The order of suspension,
removal or dismissal shall state the charges framed against
the trustee, his explanation and the finding on each charge,
with the reasons therefor.
(3) Pending disposal of the charges framed against a
trustee the Charity Commissioner may place the trustee
under suspension.
(4) Where the Charity Commissioner has made an order
suspending, removing or dismissing any trustee and such
trustee is the sole trustee or where there are more than one
trustee and the remaining trustees, according to the
instrument of trust, cannot function or administer the trust
without the vacancy being filled, then in that case the
Charity Commissioner shall appoint a fit person to discharge
the duties and perform the function of the trust, and such
person shall hold office only until a trustee is duly appointed
according to the provisions of the instrument of trust.
(5) A trustee, aggrieved by an order made under sub
section (1) may, within ninety days from the date of
communication of the order of suspension, removal or
dismissal, apply to the Court against such order.
(6) An appeal shall lie to the High Court against the
decision of the Court under subsection (5) as if such
decision was a decree from which and appeal ordinarily lies.
(7) The order of the Charity Commissioner shall, subject
to any order of the Court or in appeal, be final."
Dinesh Sherla page 15 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
27] From the aforesaid, it is clear that the Charity Commissioner
may either on an application of trustee or any interested in the
Trust, or on receipt of report under section 41D of the MPT Act or
suo motu suspend, remove or dismiss any trustee of a public trust, if
such trustee makes persistent default in the submission of accounts
report or return; wilfully disobeys any lawful orders issued by the
Charity Commissioner under the provisions of MPT Act or rules
made thereunder by the State Government; continuously neglects
his duty or commits any malfeasance or misfeasance, or breach of
trust in respect of the trust; misappropriates or deals improperly
with the properties of the trust of which he is a trustee; or accepts
any position in relation to the trust which is inconsistent with his
position as a trustee; if he is convicted of an offence involving moral
turpitude. There is no dispute in terms of section 3 of the MPT Act,
even a Joint Charity Commissioner is empowered to exercise powers
under section 41D of the MPT Act. Accordingly, there is no challenge
to the exercise of powers under section41D of the MPT Act by the
Joint Charity Commissioner.
28] Section 41D (2) of the MPT Act provides that when the
Charity Commissioner proposes to take action under subsection (1)
of section 41D of the MPT Act, i.e., action of suspension, removal or
dismissal of the trustee, the Charity Commissioner shall frame
charges against the trustee and give him an opportunity of meeting
such charges of testing the evidence adduced against him and of
adducing evidence in his favour. The order of suspension, removal
or dismissal will have to state the charges framed against the
trustee, his explanation and record the finding on each charge, with
the reasons therefor.
Dinesh Sherla page 16 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
29] Section 41D of the MPT Act provides that where the Charity
Commissioner has made an order suspending, removing or
dismissing any trustee and such trustee is the sole trustee or where
there are more than one trustee and the remaining trustees,
according to the instrument of trust, cannot function or administer
the trust without the vacancy being filled, then in that case the
Charity Commissioner shall appoint a fit person to discharge the
duties and perform the function of the trust, and such person shall
hold office only until a trustee is duly appointed according to the
provisions of the instrument of trust. This provision, is possibly the
provision under which the Joint Charity Commissioner, by his order
dated 17 December 2012 appointed an Administrator to govern the
affairs of the Trust. However, from the impugned order, it is not at
all clear as to whether, in terms of the instrument of the Trust,
governance of Trust was not possible, consequent upon the
suspension and removal of the appellants in First Appeal Nos.1244
of 2015 and 1250 of 2015.
30] In this case, perusal of the Joint Charity Commissioner's order
dated 17 December 2012 would indicate that there is substantial
compliance with the procedure prescribed under section 41D(2) of
the MPT Act.
31] From the record, it is apparent that the Joint Charity
Commissioner did frame charges against the trustees, afford such
trustees sufficient opportunity of meeting such charges of testing the
evidence adduced against them and opportunity for themselves
adducing evidence in their favour. Accordingly, there is no case
made out to interfere with the impugned orders on the grounds of
Dinesh Sherla page 17 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
breach of any principles of natural justice or lack of opportunity to
meet charges, to test the evidence in support of the charges or to
adduce the evidence in order to demolish the charges so leveled.
Besides, the impugned order dated 17 December 2012 made by the
Joint Charity Commissioner states the charges framed against the
trustees, records their explanation and further, also gives findings on
each charge with reasons therefor. On procedural grounds,
therefore, there is no case made out to interfere with the impugned
order.
32] The Full Bench of this Court in Prabhakar S. Chaudhari vs.
Laxman B. Mali – Second Appeal No. 700 of 2008 decided on 1
April 2016 (Aurangabad Bench), in the context of provisions of
section 72(4) of the MPT Act held that even though, the said
provision contemplates an appeal to the High Court against the
decision of the court under subsection (2) of section 72 of the MPT
Act, as if, such decision was a decree from which an appeal
ordinarily lies, such appeal, is not to be adjudged by the rigorous,
which normally apply to a second appeal under section 100 of CPC.
Applying similar principle to an appeal under section 41D (6) of the
MPT Act, it will be safer to proceed on the basis that the present
appeals, though technically are second appeals, the same, will not
be adjudged by applying the rigorous of section 100 of the CPC, in
absence of any specific provisions to this effect under the MPT Act.
Accordingly, the full opportunity was granted to learned counsel for
the parties to make their submissions in the context of charges
which have been held as proved against the appellants in First
Appeal Nos. 1244 of 2015 and 1250 of 2015. The record was also
examined and considered for this purpose. Further, since this matter
Dinesh Sherla page 18 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
relates to charges and action under section 41D of the MPT Act, this
court, was conscious of the circumstance that the higher degree of
proof is necessary in order to sustain the charges levelled against the
appellants, as laid down in certain decisions on the subject, to
which, some reference was made by Mrs. Thorat, learned counsel
for the appellants in First Appeal No. 1250 of 2015.
33] The charge levelled against Rev. Dr. P.B. Amolik was that he
permitted frittering away of the trust property, i.e., Claire
Road property, C.T,S. No.242, for a song and without there
being any resolution of the Board of Trustees authorising
such action. By way of elaboration, it was stated that the
Claire Road property admeasuring 785 sq.mtrs of which, the
Trust was a lessee in terms of lease deed dated 19 April 1938
for a period of 99 years was purported to be sold to Fizabhai
and Nafisa Ali Taherbhai for a consideration of Rs.7 lakhs or
thereabouts, when in fact, the Ready Reckoner price
estimates the value at Rs.3 crores. It is stated that the
purchasers have constructed a 40 storey building upon said
property and amassed a fortune and the Trust, has only
received an amount of Rs.7 lakhs.
34] Mrs. Thorat, learned counsel for Rev. Dr. P.B. Amolik,
submitted that the purchasers were sublesses in respect of Claire
Road property. Since, the Trust was only the lessee of the property,
there was no necessity of obtaining permission of the Charity
Commissioner under section 36 (1)(a) of the MPT Act and therefore,
there was no infirmity in transferring the property to the purchaser
even during pendency of application under section 36(1)(a) of the
Dinesh Sherla page 19 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
MPT Act. She submits that the amount of RS.8,50,000/ was
received by cheque and therefore, the charge as levelled against
Rev. Dr. P.B. Amolik was required to be held has not proved or in any
case not sufficient to warrant any action under section 41D of the
MPT Act.
35] The Joint Charity Commissioner as well as the City Civil
Court, Mumbai in the impugned judgments and orders, upon
appreciation of the evidence on record in great details held the
charge as proved as against Rev. Dr. P.B. Amolik. The evidence on
record clearly establishes that the Trust had held the Claire Road
property, which is undoubtedly, a prime property, on basis of lease
for the term of 99 years. The evidence on record also establishes
that absence of any proper resolutions to back the action of Rev. Dr.
P.B. Amolik. The evidence on record also establishes that permission
was applied for from the Charity Commissioner under section 36(1)
(a) of the MPT Act. However, even before such permission could
obtained, Rev. Dr. P.B. Amolik proceeded with the transactions and
eventually transferred the Claire Road property admeasuring 785
sq. meters and conservatively valued at least Rs.3 crores to Fizabhai
and Nafisa Ali Taherbhai, for virtually a song. The circumstance that
the amount of RS.7 lakhs or Rs.8,50,000/ (as is borne from the
evidence on recored) was received by cheque in favour of the Trust,
is hardly some ground to excuse or mitigate the action of Rev. Dr.
P.B. Amolik in dealing with the trust property, in such a manner.
Section 41 D (1)(d) clearly provides that the Charity Commissioner
may suspend, remove or dismiss a trustee, where the trustee
misappropriates or deals improperly with the properties of the trust
of which he is a trustee. The evidence on record is more than
Dinesh Sherla page 20 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
sufficient to sustain the first charge against Rev. Dr. P.B. Amolik as
well as the other trustees, who, at least, on account of their neglect,
permitted, frittering away of the trust property both, without
authority of law and virtually, for a pittance.
36] The second charge against the trustees, who were styled as
opponent Nos.1 and 3 in Application No. 28 of 2009 made before
the Joint Charity Commissioner is that they took no steps to recover
an amount of Rs.2,32,10,000/ from the developer of the property
styled as St. Crispin's Home, at Pune, which was due and payable to
the Trust. On this ground, it was alleged that there is continuous
neglect on the part of the said trustee in discharge of their duties,
apart from misfeasance, malfeasance and improperly dealing with
the trust property.
37] Again, there is substantial evidence on record to sustain the
finding that such charge stands proved. Apart from concurrent
findings recorded by the Joint Charity Commissioner and the City
Civil Court, Mumbai, it is to be noted that there is ample evidence
on record which establishes that such amounts were required to be
recovered from the developer in relation to the development of the
trust property. The material on record also establishes that the said
trustees were responsible and duty bound to have taken steps to
effect such recovery. Rather than take such steps, it is apparent that
the said trustees, failed and neglected in discharge of their duties.
Accordingly, there is no reason to interfere with the findings as
regards Charge No.2.
Dinesh Sherla page 21 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
38] Charge No.3 was framed against Rev. Dr. P.B. Amolik to the
effect that he leased out the trust property at Matheran bearing M.P.
No.10, admeasuring 27652.5sq.mts, without sanction from the
Charity Commissioner by misleading the Board of Trustees. There is
also a charge that Rev. Dr. P.B. Amolik did not account the lease rent
and thereby, continuously neglected his duty and committed
malfeasance, misfeasance and misappropriation and even otherwise,
improperly dealt with the trust property. Again, the Joint Charity
Commissioner as well as the City Civil Court, Mumbai have held the
charge as proved on the basis of material on record.
39] Mrs. V.V. Thorat, learned counsel for Rev. Dr. P.B. Amolik, has
contended that permission from the Joint Charity Commissioner
could not be obtained as the lease deed dated 23 March 2005 was in
a cupboard located in the trust office and the same was sealed by
Azad Maidan Police Station. She further contended that Matheran
property was not leased to Deep Swapna Trust for any commercial
purpose, but the same was leased because the objects of the Trust
were similar to the objects of the Bombay Diocesan Trust Association
Private Ltd.. Further, Mrs.Thorat contended that after the term of
lease expired, only a leave and licence was granted and there is no
prohibition under the MPT Act for entering into any such
transactions.
40] The evidence on record does indicate that sealing of the Trust
office by Azad Maidan Police Station took place some time in March
2004. This means that the lease agreement dated 23 March 2005
could not have been in the cupboard at the trust office, which stood
sealed from May 2004. In any case, the defences hardly merit
Dinesh Sherla page 22 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
acceptance. In absence of proper and valid reasons and without
apprising Board of Trustee of full, true and correct particulars, Rev.
Dr. P.B. Amolik was not at all justified in dealing with Matheran
property admeasuring 27652.5 sq. meters, in the manner in which
he has purported to deal with the same. Again, this is a clear case of
improperly dealing with the Trust property. Such a large and
valuable property at Matheran was purportedly handed over to
another trust without being any corresponding benefit to the Trust.
Accordingly, the third charge against the appellant stands duly
proved.
41] The fourth charge against the trustees styled as opponent
Nos.1 to 10 (except opponent No.2) )in Application No.28 of 2009,
is that they dealt with yet another Mahabaleshwar property of the
trust, in a totally improper manner and further, continuously
neglected their duties and committed acts as contemplated by
section 41D(1)(b) (c) of the MPT Act. The charge is that the
property was agreed to be sold to one Mrs. Sulochana Bavlekar for
an amount of Rs.5 lakhs, which amount in fact was deposited by her
with the trust. The trustees in question, even without there being
any resolution in that regard, created a lease in respect of said
Mahabaleshwar property in favour of M/s. Sawarna Builders. The
amount received from M/s. Sawarna Builders was not at all properly
accounted for and at a later stage, an amount of Rs.10 lakhs was
indicated as liability to M/s. Sawarna Builders. Again, both the Joint
Charity Commissioner as well as the City Civil Court, Mumbai have
held this charge as proved against the trustees.
Dinesh Sherla page 23 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
42] There is documentary evidence on record, which indeed
supports the charge leveled against the trustees. There are no
resolutions produced by the trustees in support of their action. The
amount of Rs.10 lakhs received from M/s. Sawarna Builders was
indicated as liability to the developer and that too, with regard to
Mahabaleshwar property, when in fact, M/s. Sawarna Builders were
dealing with the Mahabaleshwar property of the Trust. This is again,
a case where the trustees, have improperly dealt with the trust
property and thereby, caused losses to the trust. The appeal court
has in fact recorded the trustee's disobeyed the orders made by the
Joint Charity Commissioner and further, there was misappropriation
of Rs.5 lakhs. Even if misappropriation aspect is excluded from
consideration, there is sufficient material on record to sustain charge
No.4 with regard to improper dealing with Mahabaleshwar property
of the Trust.
43] The fifth charge leveled against the trustees styled as
opponent Nos.1 to 10 (except opponent No.2) in Application No. 28
of 2009 relates to Ahmedabad property admeasuring 108846 sq.ft.
This charge is held as not proved against the trustees. As such there
is no necessity to proceed further in relation to this charge.
44] The sixth charge leveled against the trustees styled as
opponent Nos.1 to 10 (except opponent No.2) in Application No.28
of 2009 states that the trustees alienated Proctor Road property
from development, without there being any sanction or proper
resolution of the Board of Trustees. There is also reference to
Agripada property in relation to Charge No.6.
Dinesh Sherla page 24 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
45] The charge is that the properties were transferred without
permission and in any case in breach of terms of sanction by the
Charity Commissioner. The transferee, consumed the entire FSI,
constructed building and flats, which were eventually sold to third
parties. Several defences were raised, which, deserve no acceptance.
One of the defence was that all this exercise was done because the
Trust received a donation of Rs.10 lakhs. This is hardly a valid
defence to such a serious charge of improperly dealing with trust
property. The evidence on record including in particular
documentary evidence on record, which has referred to by the Joint
Charity Commissioner and also the appellate court very clearly
establishes this charge. In fact, the appellate court has observed that
the flats were never sold to the persons from low income group or
Christians. However, opponent No.10, who signed the agreement
received an amount of Rs.15 lakhs and residential accommodation,
th
as a quid pro quo . All this material is sufficient to prove the 6
charge leveled against the trustees.
46] The seventh charge was against the trustee styled as opponent
no.10 in Application No.28 of 2009. The charge was that this
trustee signed the Memorandum of Understanding dated 18 August
2009 as a Chairman of Emmanuel Church Co.Op. Housing Society,
which is the society of the beneficiaries of the Bombay Diocesan
Trust Association Pvt. Ltd. On this basis it was alleged that the said
trustee had accepted the position in relation to the Trust, which is
inconsistent with his position as a trustee.
47] Although, both Joint Charity Commissioner as well as the City
Civil Court at Mumbai have held this charge as proved , since, it is
Dinesh Sherla page 25 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
not quite clear as to how such action on the part of the opponent
No.10 trustee attracts the provisions contained in section41D (1)(e)
of the MPT Act, it will be safer to hold said charge as not proved
against opponent No.10 trustee. This, however, affords no cause to
interfere with the final impugned orders.
48] Charge No.8 leveled against Rev. Dr. P.B. Amolik, is that the
said trustee, without authority or resolution of the board of trustee
improperly dealt with the Panvel property of the Trust. The Trust, in
any case was due to get 72480 sq ft of built up area from the
developer M/s. Nikhil Enterprises. The trustee, took no steps to
recover such area. Besides, the trustee caused vague resolutions to
be passed conferring undue benefits to the developer. Thereafter, in
breach of restraining orders certain flats were permitted to be sold
for throw away prices. By way of illustration, it was alleged that Flat
No. 403 admeasuring about 793 sq. ft having market value of Rs.40
lakhs was sold for consideration of hardly Rs.4,80,000/.
49] Again, both the Joint charity Commissioner and the City Civil
Court, Mumbai have held the charge as proved. There is ample
documentary evidence to hold that the charge as proved. The
defence, as raised by Mrs. Thorat was totally vague and therefore,
merits no acceptance. From the material on record, it is apparent
that the trustees dealt with the Trust property improperly and has in
fact frittered away the trust property for a song. There are no
resolutions or permission from the competent authority to sustain
such acts. The documents produced on record clearly establish this
charge.
Dinesh Sherla page 26 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
50] Charge No.9 relates to the property at Pune. The allegation is
that Rev. Dr. P.B. Amolik was styled as Opponent No.1 in Application
No. 28 of 2009 entered into a development agreement with Jai
Construction, without there being any resolution of the Board of
Trustees. Again, the agreement purported to confer certain rights
upon the builder at the rate of Rs.65/ per sq. ft. An amount of
Rs.75 lakhs was received from the developer, but never accounted
for. In the records, the liability was indicated against Pune property
admeasuring 2,65,892 sq. ft in an amount of Rs.5 lakhs for the
financial year 20052006.
51] Again, the Joint Charity Commissioner and City Civil Court,
Mumbai have correctly held this charge as proved against the
trustee. There is no proper resolution on record authorising the
trustee to enter into the transaction in this magnitude in relation to
the trust property. No permission has been obtained from the
statutory authority for dealing with the Trust property in this
manner. There is no explanation, regards the amount of Rs.75 lakhs.
This is indeed a serious charge and the same stand proved, even on
the basis of the documents on record.
52] Finally, the tenth charge relates to the Trust property, ad
measuring 2659 sq. mtrs at Guruwarpeth Pune. The allegation is
that Rev. Dr. P.B. Amolik styled as opponent No.1 in Application No.
28 of 2009 is alleged to have dealt with the development rights in
respect of this property were given to Mr. Ambalal Jain and an
amount of Rs.7,50,000/ was purportedly received as donation.
Again, both Joint Charity Commissioner and City Civil Court have
held the charge as proved against the trustee. The documents on
Dinesh Sherla page 27 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
record bear out that the Trustee dealt with this property in absence
of any resolution or permission from the statutory authority.
Obviously, the value of the property at Guruwar Peth, Pune ad
measuring 2659 sq. mtrs. is much greater and it is not possible to
accept that the transaction was entered into in lieu of donation of
Rs.7,50,000/ in favour of the Trust. This charge is also rightly held
as proved against the trustee.
53] After holding the charges as proved, the Joint Charity
Commissioner made the following order dated 17 December 2012:
ORDER
1. Application is allowed.
2. Opponent No.1 Mr. P.B. Amolik is hereby dismissed from
the trusteeship of the Trust “Bombay Diocesan Trust Association
Pvt. Ltd.”, having P.T.R. No.E923 (Bom.) u/s. 41D of The
Bombay Public Trust Act, 1950 forthwith forever.
3. Opponent Nos.3,4,5,6,7,9 & 10 are hereby removed from
the trusteeship of the Trust “Bombay Diocesan Trust Association
Pvt. Ltd.” having P.T.R. No.E923 (Bom.) u/s.41D of The
Bombay Public Trust Act, 1950 for six months from the date of
passing of this order.
4. Opponent No.8 is hereby removed from the trusteeship of
the Trust “Bombay Diocesan Trust Association Pvt. Ltd.”, having
P.T.R.No. E923 (Bom.) u/s. 41D of The Bombay Public Trust
Act, 1950 for five years from the date of passing of this order.
5. Deputy Charity Commissioner is hereby directed to
dispose off all the pending change reports before him in respect
of “Bombay Diocesan Trust Association Pvt. Ltd.” having P.T.R.
No.E923 (Bom) within a period of six months from date of
passing of this order.
6. Assistant Charity Commissioner (I) & Assistant Charity
Commissioner (Hospital) are hereby directed to take over the
charge of BDTA Trust & to lookafter the day to day
management and administration of the Trust. Assistant Charity
Commissioner (Hospital) to assist and cooperate to Assistant
Charity Commissioner (I). They are further directed to hold
election of the Trust as per the provisions of the Articles of
Dinesh Sherla page 28 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
Association within a period of six months from the date of
passing of this order and report compliance to this authority.
They are further directed not to take any policy decision.
7. Assistant Charity Commissioner (II) is hereby directed to
hold enquiry in respect of the Trust property in direction that
how many Trust properties are sold during the tenure of
opponent No.1 and in how many transaction there is a valid
resolution passed by the trustees and whether there is a
sanction obtained before alienation of the property. He is also
directed to assess the loss caused to the Trust by the
misappropriation, negligence in duties, breach of trust at the
hands of opponent trustees & report accordingly.
8. Parties be informed accordingly.
9. Send the copy of this judgment to Assistant Charity
Commissioner (I),(II) & (Hospital) immediately.”
54] Since, most of the charges against the trustees stand proved,
there is really no case made out to interfere with the exercise of
powers by the Joint Charity Commissioner under section41D of the
MPT Act. The Joint Charity Commissioner, has in fact, been
charitable to most of the trustees except perhaps Rev. Dr. P.B.
Amolik, since, most of the trustees, were removed as trustees only
for a limited period of six months and the trustee styled opponent
No.8 was removed for a period of five years. Rev. Dr. P.B. Amolik
was, however, dismissed from the trusteeship “ forever ”. Although,
the charges held as proved against Rev. Dr. P.B. Amolik are indeed
serious and warrant a very serious action, the question is whether
the Joint Charity Commissioner is empowered to order the removal
a trustee “ forever” ?.
55] Mr. Godbole, learned counsel for James Baker and another,
i.e., applicants in Application No.28 of 2009, relied upon certain
principles in service jurisprudence and submitted that an employer,
Dinesh Sherla page 29 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
in case of proved and gross misconduct on the part of employee, can
always dismiss the employee and particularly in case of government
service can impose penalty of dismissal which shall operate as
disqualification for future employment in government service. Mr.
Godbole also made reference to certain provisions of Pension
Scheme, 1995 as regards forfeiture of service, particularly in case of
gross misconduct. Mr. Godbole has also relied upon decision of
Hon'ble Supreme Court in Shyam Lal vs. State of U.P. and anr.
AIR 1954 SC 369, in support of such submission.
56] On the other hand, Mrs. Thorat, placed on record the
Maharashtra Ordinance No.XIII of 1997 dated 28 May 1997, by
which, certain subsections were inserted in section 41D of the MPT
Act, so as to disqualify trustees, who were dismissed by the Charity
Commissioner under subsection (1) of section 41D of MPT Act from
contesting elections or being appointed to the office of the Trust,
unless such dismissal is stayed by competent court or ultimately set
aside. She submits that such ordinance lapsed and therefore, sub
sections 7 and 8 to section 41D of the MPT Act, no longer find place
on the statute book. She submits that in absence of such provisions,
the Joint Charity Commissioner clearly exceeded jurisdiction in
dismissing Rev. Dr. P.B. Amolik as trustee of the Trust “ forever”.
57] The second point for determination in this appeal is therefore,
whether the Joint Charity Commissioner is empowered under
section 41D of the MPT Act to dismiss Rev. Dr. P.B. Amolik as trustee
of the Trust “ forever” ?
Dinesh Sherla page 30 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
58] Although, it is true that Rev. Dr. P.B. Amolik has committed
very serious acts of misconduct and action is warranted against him
under section 41D of MPT Act, the question really is whether the
Joint Charity Commissioner has power to order dismissal of the
trustee “forever”. The import of Joint Charity Commissioner's order,
which has now been upheld by the City Civil Court is that Rev. Dr.
P.B. Amolik stands dismissed as a trustee not only for the term for
which he was appointed as a trustee, but, the expression “ forever”
indicates that Rev. Dr. P.B. Amolik is disqualified from contesting any
elections or being appointed to the office of the trustee, unless, the
dismissal order is stayed or set aside by the appellate authority. In
this case, there is no case made out to set aside the dismissal order.
This means that if the impugned order , which purports to dismiss
Rev. Dr. P.B. Amolik “forever” is sustained, then Rev. Dr. P.B. Amolik
will not be in a position to contest for election or be appointed, as a
trustee of the trust.
59] The principles of service jurisprudence cannot be imported in
a matter of this nature. In any case, Mr. Godbole relied upon the
specific provision under certain service regulations, which permit
the adoption of such a course of action. However, such provisions,
are conspicuous by their absence in the MPT Act.
60] The Legislature, was perhaps conscious of the absence of
such provision and with a view to remedy such mischief, the
Bombay Public Trust (Amendment) Ordinance 1997 (1997
Ordinance) was promulgated in order to insert subsections 7 and 8
in section 41D of the MPT Act.
Dinesh Sherla page 31 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
61] The 1997 Ordinance reads thus:
“MAHARASHTRA ORDINANCE No. XIII OF 1997
th
(28 May 1997)
BOMBAY PUBLIC TRUSTS (AMENDMENT) ORDINANCE, 1997.
AN ORDINANCE further to amend the Bombay Public
Trusts Act, 1950.
WHEREAS both Houses of the State Legislature are not in
session;
AND WHEREAS the Governor of Maharashtra is satisfied
that circumstances exist which render it necessary for him to
take immediate action further to amend the Bombay Public
Trusts Act, 1950;
NOW THEREFORE, in exercise of the powers conferred by
clause (1) of article 213 of the Constitution of India, the
Governor of Maharashtra is hereby pleased to promulgate the
following Ordinance, namely:
1. Short title and commencement. (1) This
Ordinance may be called the Bombay Public Trusts
(Amendment) Ordinance, 1997.
(2) It shall come into force at once.
2. Amendment of section 41D of Bom. XXIX of 1950.
In section 41D of the Bombay Public Trusts Act, 1950
(hereinafter referred to as “the principal Act”), after subsection
(7) the following subsection shall be added, namely:
“(8) A trustee of a public trust who has been
dismissed by the Charity Commissioner under subsection
(1), shall be disqualified for contesting any election or
being appointed, to the office of a trustee of such trust
unless,
(i) the order of his dismissal is stayed or set aside by the
Court under subsection (5) or by the High Court, in appeal,
under subsection (6); or
(ii) no stay is granted by the High Court in an appeal filed by
the Charity Commissioner or any trustee of the trust or any
person interested in the trust, under subsection (6), against the
order of the Court under subsection (5) setting aside the
dismissal order of the Charity Commissioner”.
62] If the impugned action had been taken during subsistence of
the Ordinance, then, there was absolutely no reason to interfere
Dinesh Sherla page 32 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
with the impugned order to the extent it disqualifies Rev. Dr. P.B.
Amolik from contesting or being appointed to the office of a Trust.
However, at the stage where the impugned orders were made, the
ordinance had already lapsed and was no longer operative. It is an
admitted position that the State Legislature did not introduce of bill
in the legislative assembly, so as to amend section 41D of the MPT
Act, by inserting subsections 7 and 8 to section 41D as aforesaid.
Mr. Godbole's contention that the Ordinance was allowed to lapse or
that no bill was introduced in the legislative assembly because the
existing provisions of section 41D of the MPT Act itself imposed an
implied bar, cannot be accepted. The circumstance that an
Ordinance was promulgated and subsections 7 and 8 introduced in
section 41D of the MPT Act, itself suggests that but for such
promulgation and introduction, there was no power vested in the
Charity Commissioner to debar a dismiss trustee from recontesting
for the position of trustee, consequent upon determination of his
tenure.
63] In view of the aforesaid, although, the dismissal of Rev. Dr. P.B.
Amolik is required to be upheld, such dismissal, to the extent, it
purports to debar Rev. Dr. P.B. Amolik from contesting for the
position of trustee post determination of his tenure, is required to be
set aside. This means that the expression for “ forever ”, as it appears
in clause (2) of operative portion of the judgment and order dated
17 December 2012, is liable to be set aside and is hereby set aside.
First Appeal No.1250 of 2015 instituted by Rev. Dr. P.B. Amolik is
therefore, allowed to the aforesaid extent only.
Dinesh Sherla page 33 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
64] This is a fit case where the appellants in First Appeal
Nos.1244 and 1250 of 2015 are required to be saddled with
exemplary costs. From the evidence on record, it is clear that the
appellantstrustees have frittered away the trust property for a
pittance. The appellants have raised false and frivolous defences to
the charges under section 41D of the MPT Act and further, failed to
establish such defences. Such costs are required to be paid to the
Joint Charity Commissioner.
65] There is no dispute that tenure of the trustees, has already
expired. There is no dispute that in terms of the instrument of trust
the elections are long over due. Already there are directions issued
for holding elections in accordance law, such directions are required
to be implemented. In fact, the concerned Charity Commissioner,
should ensure that the election process is completed as expeditiously
as possible and in any case not later than three months from the
date of this order.
66] Writ Petition No. 12089 of 2015 instituted by Jamesh Baker
and another impugns the following observation recorded in the
impugned order dated 30 October 2015 made by the City Civil
court, Mumbai.
“85. Needless to mention that the applicant no.1 Mr. James
Baker is also not a holy cow. He is involved in several criminal
activities. Some criminal cases are pending against him in
Gujarat state. It further seems that after passing impugned
judgment the applicant no.1 with a view to capture the trust
seems to have filed certain applications with Joint Charity
Commissioner and attempted to mislead. Be that as it may, the
parties to present proceeding are not free blame, therefore, I
recommend/suggest the learned Joint Charity Commissioner to
Dinesh Sherla page 34 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
initiate soumoto (sic) proceeding under section 50A of the Act
prepare a scheme and to appoint Collector as Exofficio
Chairman of the Trust to manage the Trust. I further recommend
that the learned Joint Charity Commissioner appoint prominent
persons from Christan community as trustees of the Trust by
following the procedure as contemplated u/s 50A of the Act so
that the huge property of the Trust in question can be saved from
being wasted in future at the hands of applicant no.1 and all the
respondents.”
67] In a matter of this nature, the observations that James Baker
is not a holy cow or that he has mislead the authority, were really
not warranted. In a matter of this nature, what is really important is
the message and not messenger. Section 41D of the MPT Act also
empowers the Charity Commissioner to exercise his jurisdiction suo
moto. Accordingly, the observations made against James Baker are
ordered to be expunged. The writ petition is therefore, allowed to
the said extent.
68] The appeals and the writ petition are therefore, disposed of
with the following order:
a] First Appeal Nos.1327 and 1328 of 2015 are disposed
of by clarifying that nothing in the impugned orders dated 17
December 2012 and 30 October 2015 cast or shall be
construed as casting an stigma upon appellant Nos.2,3 and 4
in the said appeals or renders them ineligible to contest for
the position of trustees of the said Trust at the
election/election process now ordered to be held for the
position of trustees to the trust;
Dinesh Sherla page 35 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
b] First Appeal No.1244 of 2015 is dismissed with costs
assessed at Rs.25,000/ (Rupees Twenty Five Thousand only)
payable by the appellant to the Joint Charity Commissioner
within a period of four weeks from today;
c] First Appeal No. 1250 of 2015 is partly allowed and
the expression “ forever ” which appears in clause (2) of the
operative portion of the impugned order dated 17 December
2012 made by the Joint Charity Commissioner is set aside.
However, the appeal, to the extent, it challenges the rest part
of the impugned order dated 17 December 2012 and the
impugned order dated 30 October 2015, is hereby dismissed
with costs assessed at Rs.1,00,000/ (Rupees One Lakh only)
payable by Rev. Dr. P.B. Amolik to the Joint Charity
Commissioner, within a period of four weeks from today;
d] Writ Petition No. 12089 of 2015 is allowed and the
observations made in paragraph 85 of impugned judgment
and order dated 30 October 2015 made by the City Civil
Court, Mumbai against the petitioner James Baker, are set
aside;
e] The concerned Charity Commissioner and the Joint
Charity Commissioner is directed to hold elections for the
position of trustees of the Trust, in accordance with law as
expeditiously as possible and to complete election process,
not later than three months from the date of this order;
Dinesh Sherla page 36 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::
j-fa-1327-1328-1244-1250-wp-12089-15
f] The first appeals and the writ petition are disposed of
in the aforesaid terms;
g] The pending civil applications do not survive and the
same are disposed of.
(M. S. SONAK, J.)
69] At this stage, Mrs. Thorat, learned counsel for the
appellantRev Dr.P.B. Amolik requests that the time for payment of
costs by the appellant Rev. Dr.P.B. Amolik be extended to eight weeks
instead of four weeks. The extension is granted. Accordingly, the
costs may be paid withing eight weeks from today.
(M. S. SONAK, J.)
Dinesh Sherla page 37 of 37
::: Uploaded on - 14/06/2017 ::: Downloaded on - 31/03/2024 17:10:23 :::