Final Order 1

Order Details: Order below exhibit
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER BELOW EXH.6
IN
CHARITY APPLICATION NO.21 OF 2018
ANDHERI RECREATION CLUB & ORS. ...Plaintiffs.
V/s.
JOINT CHARITY COMMISSIONER
MUMBAI REGION & ORS. ...Defendants.
Appearances:
Ld. Adv.Mr.R.R. Mishra a/w Dilip Shukla for plaintiff.
Ld. Adv.Mr.P.B. Shah for defendant No.4.
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 01st February,2019
ORDER
Respondent No.4 filed this application for dismissal of the charity
application and motion in limine.
2. By simple application Mr.Priyadarshan V. Shah, Advocate for
respondent submitted that, after Section 72 of Maharashtra Public
Trusts Act, 1950 was deleted with effect from 10.10.2017 by Section 24
of The Maharashtra Public Trusts (Second Amendment) Act, 2017, the
present charity application was lodged on or around 05.01.2018 under
the deleted section 72. Even the order impunged in the above charity
application is dt.04.12.2017 after the said amendment came into effect.
Therefore, as the definition of 'Court' in Section 2(b) is amended as
High Court, it appears that, the order of Charity Authorities cannot be
MHCC01-000177-2018
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challenged before this Court. Therefore, charity application neither
maintainable nor it is maintainable as it is lodged on or after
10.10.2017. Thus, it is deserves to be dismissed with notice of motion.
3. The applicant through Vinod Mohanlal Mehta, for the applicant
No.6 itself and on behalf of applicant No.1 as Secretary and Trustee
filed reply and strongly opposed the application. They submitted that,
applicant challenging the order dt.04.12.2017 passed in Appeal No.485
of 2015 of learned Joint Charity Commissioner, Mumbai Region,
wherein Change Report Inquiry No.2859 of 1994 was set aside and
remanded back the matter with an adverse and perverse observations in
the impugned order and therefore, they have approached this Court.
The simple application tendered by the respondent for dismissal is not
maintainable in view of the provisions under Bombay City Civil Court
Rules and therefore, application deserves to be rejected.
4. Furthermore, they submitted that, order was passed by the
Assistant Charity Commissioner on 01.09.2015 in Change Report
No.2859 of 1994 i.e prior to the amendment came into force. The
respondent Nos.2 to 9 have challenged the same in Appeal No.485 of
2015 under Section 70 of Bombay Public Trust Act, which was filed in
the year 2015, which is again prior to the amendment in force on
01.09.2017. Thus, present application filed under Section 72 of
Bombay Public Trusts Act 1950 as Section 33 of the said amendment
expressly provided for continuation of the proceeding. In other words,
the said amendment exfacie and prospective in nature and has never
been retrospective. Therefore, challenging the impugnd order of the
Charity Commissioner in appeal is very much maintainable before this
Court, in view of the Section 33 the amendment was to take effect
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prospectively and has it been registered before this Court the ECourt
system should not have been accepted the same. Therefore, the
impugned order dt.04.12.2017 passed in Appeal No.485 of 2015 by
learned Joint Charity Commissioner when challenged before this Court
can be entertained and prayed that, this application be rejcted with
heavy costs.
5. Heard learned Advocate P.B. Shah for respondent No.4 and
learned Advocate R.R. Mishra for plaintiff at length. Perused the record
and submissions.
6. On perusal of the charity application registered as 21 of 2018 is
under Section 72 of Maharashtra Public Trust Act,1950. In this charity
application impugned order dt.05.01.2018 passed by the Joint Charity
Commissioner in Appeal No.485 of 2015 was challenged. That appeal
was preferred in respect of the order dt.01.09.2015 in Change Report
No.2859 of 1994. It is allegations of this applicant that the order
passed by Assistant Charity Commissioner and thereafter, in appeal by
the Joint Charity Commissioner is perverse and the compliance made
therein deserves to be expunged. Therefore, they submitted that, they
have goods case to proceed with this application.
7. However, it is pertinent to note that, Section 72 of Maharashtra
Public Trusts Act came to be deleted by way of amendment, which
came into effect on 10.10.2017 prior to it, it is to be noted that,
“72. Application from Charity Commissioner's decision
under section 40,41,41C and 43(2)(a) and (c), 50A, 70
or 70A, etc.
1) Any person aggrieved by the decision of the Charity
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Commissioner under section 40,41,41C and 43(2)(a)
and (c), 50A,70 and 70A or on the questions (whether a
trust exists and whether such trust is a public trust or
whether any property is the property of such trust may,
within sixty days from the date of the decision, apply to
the court to set aside the said decision.
1A) No party to such application shall be entitled to
produce additional evidence, whether oral or
documentary, before the Court, unless the Deputy or
Assistant Charity Commissioner or the Charity
Commissioner has refused to admit evidence which
ought to have been admitted or the Court requires any
document to be produced or any witness to be examined
to enable it to pronounce judgment or for any other
substantial cause the Court thinks if necessary to allow
such additional evidence :
Provided that, whenever additional evidence is allowed
to be produced by the Court, the Court shall record the
reason for its admission.
2) The Court after taking evidence, if any, may
confirm, revoke or modify the decision or remit the
amount of the surcharge and make such orders as to
costs as it thinks proper in the circumstances.
3) Pending the disposal of an application under sub
section (2) all proceedings for surcharge shall be stayed
if the person aggrieved makes out a prima facie case for
a stay order.
4) An appeal shall be to the High Court, against the
decision of the court under subsection (2) as if such
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decision was a decree from which an appeal ordinarily
lies.”
8. Even the authority i.e the Court, mentioned in clause No.2(b) was
also came to be amended and it was inserted that 'Court' means 'High
Court of Judicature at Bombay'. Therefore, the authority of the Court in
Greater Bombay is City Civil Court and elsewhere the District Court is
now taken away by way of this amendment being the Court i.e 'High
Court of Judicature at Bombay'. If this is so, even if we go through the
overriding effect as per Section 108A of the Act it is specifically averred
that, the provisions of this Act shall have overriding effect
notwithstanding anything inconsistent therewith contained in any other
law for the time being in force or in any instrument having effect by
virtue of any law other than this Act and in view of Section 112 –
Repeal and Savings and Section 113 – Power to remove difficulties,
subsequently provided that such report shall not effect the previous
operation of corresponding law.
9. Now, when this application is titled under Section 72 (2) of
Maharashtra Public Trusts Act, 1950, if considered in the aspect of the
previous provisions it is no party to such application shall be entitled to
produce additional evidence, whether oral or documentary, before the
Court, unless the Deputy or Assistant Charity Commissioner or the
Charity Commissioner, then any person aggrieved by that decision of
Charity Commissioner can approach this Court. However, in the
present case change report is of 1994, in which order was passed prior
to amendment came into force and it was challenged in Appeal No.485
of 2015 wherein order was passed on dt.05.01.2018. Which is clearly
after the amendment into force dt.10.10.2017. In such factual position
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the jurisdiction of this Court is barred specifically from entertaining any
order to be challenged under Section 72 (2) of the Maharashtra Public
Trust Act,1950. On this ground itself the charity application is not
maintainable before this Court.
10. Even the present application (Exh.6) is not in format as
mandatory in Bombay City Civil Court Rules. But when the jurisdiction
of this Court is specifically barred from entertaining any application
against the order, question of entertaining this charity application along
with other affiliated application in the charity application does not
arise. In such circumstance, application needs to be made absolute and
thereby Charity Application No.21 of 2018 though tendered and
registered before this Court on 05.01.2018, being after the amendment;
is not maintainable before this Court and deserves to be dismissed with
all other application like Notice of Motion No.657 of 2018. Hence, by
directing the parties to bear their costs, I proceed to pass the following
order :
O R D E R
1. Application (Exh.6) filed in Notice of Motion No.657 of
2018 in Charity Application No.21 of 2018 is made
absolute.
2. Charity Application No.21 of 2018 and Notice of Motion
No.647 of 2018, with other applications therein, stand
rejected for want of jurisdiction.
3. Applicant to take necessary steps.
4. Parties to bear their costs.
( ABHIJEET A. NANDGAONKAR )
Judge, (C.R.No.20)
Dt.: 01/02/2019 City Civil Court, Gr. Mumbai
Dictated on : 01.02.2019
Transcribed on : 05.02.2019
Signed on : 05.02.2019
kps/
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
05.02.2019 at 1.46 p.m.
UPLOAD DATE AND TIME
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI A.A.
NANDGAONKAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 01.02.2019
Judgment/order signed by P.O. on 05.02.2019
Judgment/order uploaded on 05.02.2019
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