Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.2786 OF 2019
IN
S.C.SUIT NO.7788 OF 2019
1. Mr.Ralphy Jhirad,
2. Mr.Jagdish K.Joshi,
3. Mr.Hemant Shah,
4. Mr.Kalpesh Nansi, ... Plaintiffs
Versus
1. David Sassoon Library & Reading Room,
2. Mr.Hemant Bhalekar,
3. Mr.Kaushik Oza,
4. Ms.Swati Kapadia,
5. Mr.Vaibhav haldankar,
6. Mr.Ramdas Thorat,
7. Mr.Macchindra Gaikwad,
8. Mr.Kirtikumar M. Oza,
9. Mr.Sameer Sinkar,
10.Mr. Baldev Singh,
11.Mr.Ramesh B. Jaiswal,
12.Mr.Naresh Kulabar,
13.Mr.Rajesh Kanojia,
14.Mr.S. Kumar,
15.Mr.Srinu Yellala, ... Defendants
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 25th JULY, 2019
Mr.Chothani i/b. Ms.P.M.Bhanusali, ld. adv. for plaintiffs.
Mr.Sandeep Maurya, ld adv. for defendants.
O R D E R
1. This notice of motion is taken out by plaintiffs for
temporary injunction for restraining defendants from initiating and/ or
continuing any further process of election to be held on 03/08/2019
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and 05/08/2019 without accepting the nomination forms of the
plaintiffs as eligible candidates. Plaintiffs have also prayed for directions
for defendants to allow the plaintiffs to contest the ensuing election of
new managing committee of defendant no.1 to be held on 03/08/2019
and on 05/08/2019.
2. Plaintiff no.1 Ralphy Jhirad had filed his affidavit in
support of notice of motion contending that plaintiffs have filed this suit
for injunction against defendants and for the reliefs prayed in prayer
Clauses of the plaint. It is contended that plaintiffs are intending to rely
upon the facts mentioned in the plaint. It is contended that in the
circumstances of present case, it is just, proper and necessary that
during the pendancy of the suit the interim reliefs as prayed in notice of
motion should be granted. According to plaintiffs, if such reliefs will
not be granted, grave and irreparable loss/ harm and prejudice will be
caused to plaintiffs which cannot be compensated in terms of money.
According to plaintiffs, if such reliefs will be granted no prejudice or
injury of whatsoever nature will be caused to defendants. It is
contended that balance of convenience is in favour of plaintiffs for
granting interim reliefs as prayed in the plaint.
3. Plaintiff have filed this suit for declaration that decision of
defendants notifying the rejection of nominations of the plaintiffs as per
the list displayed and titled as “Rejected Candidates” is illegal, unlawful
and contrary to the constitution of defendants and further they have
sought declaration that plaintiffs being eligible are entitled to contest
the disputed election of managing committee of defendant no.1
proposed to be held on 03/08/2019 and on 05/08/2019. In plaint
plaintiffs have prayed for issuing mandatory order and directions to
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defendants to accept nomination forms of all the plaintiffs for said
election and to permit them to contest said election. Plaintiffs have also
prayed for perpetual injunction and order to stop all further process of
said election without accepting nomination forms of plaintiffs as eligible
candidates. As mentioned in the plaint, plaintiffs are life members of
Devid Sassoon Library and Reading Room i.e. defendant no.1 Society
registered under the provisions of Societies Registration Act, 1860
having registration No.28 of 1919 and defendant no.1 is subsequently
registered as a Public Trust under the provisions of Public Trust Act,
1950, it is having Trust registration no.F186 (Bom.). Defendant no.1 is
governed by rules and byelaws identified as “The Constitution of the
Library”. Defendant nos.2 to 15 are present office bearers and
Managing Committee members of defendant no.1 and as such they are
responsible for the management of the affairs of defendant no.1 in
accordance and mandate of the Constitution. Defendant no.1 is
prestigious and a prominent Grade1 heritage Institute in Kalaghoda
which is catering to the needs of hundreds of students and members
including senior citizens who use the Library and Reading Room
facilities as the reading rooms of defendant no.1 are open on all days of
the year including holidays. This suit pertains to the election to the
posts of members of Managing Committee of defendant no.1 proposed
to be held for library on 03/08/2019 and on 05/08/2019 and the suit
is in respect of rejection of nominations filed by the plaintiffs by the
committee of defendant no.1.
4. It is contended that the term of present Managing
Committee commenced in the year, 2017 and it is upto the year, 2019
as provided by Rule16 namely “Election of the Managing Committee”.
Rule15 and Rule16 are part of the Constitution of defendantno.1.
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Copy of said constitution is annexed to plaint as Exh.A. According to
plaintiffs, those rules provided for composition of Managing Committee
and process to be followed for election of Managing Committee of
defendant no.1. On 16/06/2019 Managing Committee, apart from
announcing that Annual General Body Meeting of the society would be
held on 03/08/2019 and on 05/08/2019 it was also announced that the
elections for the post of Managing Committee would be held on
03/08/2019 and 05/08/2019. For said purpose it was declared that
notified names were invited from eligible members to act as “Returning
Officers” as per Rule16(g). On 18/06/2019, it was further declared by
way of issuance of notice dated 18/06/2019 that as per the decision of
Managing Committee taken in its meeting, it was proposed to held
elections on the dates referred above as per the schedule of elections as
published in the notice dated 18/06/2019 as such on 18/06/2019 for
first time the schedule of disputed election was announced and notified.
Copy of said notice is filed with plaint at Exh.B. Said notice laid down
the entire schedule concerning the holding of elections. Plaintiffs being
life members of defendant no.1 are interested in contesting disputed
elections. It is contended that in the usual course of business, a list of
defaulters is put up in case there are any default in payment of
subscription fee by ordinary members or locker fees by members
whether life member or ordinary members. Notice displaying the list of
defaulting members was put up on notice board of defendant no.1 on
21/06/2019. Name of plaintiff no.4 was shown in said list for the
reasons – Arrears locker fees. It is contended that plaintiff no.4 had
paid the locker fees of defendant no.1 on 13/06/2019. Copy of receipt
of said payment of locker fees is annexed as Exh.C to the plaint.
According to plaintiffs, from said receipt it becomes clear that plaintiff
no.4 had paid locker fees even before the list of defaulter was put on
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board and even before the announcement of election schedule as
contemplated in Rule16(a) of Constitution of defendant no.1 hence
according to plaintiffs, plaintiff no.4 could not have been shown or
deemed to be defaulter in any case.
5. It is contended that plaintiff no.1 took the nomination
forms for and on behalf of the plaintiffs. Plaintiff no.1 had thereafter
received an Email stating that nomination forms purchased by the
plaintiffs are invalid. Said communication was made on behalf of
defendant no.1 to plaintiffs and made on 21/06/2019 by Assistant
Librarian of defendant no.1. On 24/01/2019 plaintiff no.1 visited the
library and from the office of defendant no.1 had telephonic
conversations with defendant no.2. That time defendant no.2
confirmed that the forms will be considered as valid and only thing
required was that the names of those persons for whom the forms were
collected were to be intimated to the staff of library. Plaintiff no.1 had
recorded said fact confirming the same by an Email dated 28/06/2019.
It is contended that plaintiffs filed their nomination forms duly filled
and as per the provisions of constitution of Library, they were issued
receipt of payment for Rs.100/ which is prescribed fee to be taken
along with nomination forms. Copies of those receipts of said payment
are annexed to the plaint as Exh.D to Exh.G.
6. It is contended that plaintiff no.1 further by letter dated
04/07/2019 also recorded whatever had transpired between plaintiff
no.1 and defendant no.2 in respect of filing of nomination forms and
issued all 20 nomination forms. Said letter is annexed to the plaint at
Exh.H. According to plaintiffs, defendants displayed a list of all the
candidates whose nomination forms were either accepted or rejected by
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putting a notice on the notice board of defendant no.1. Copy of said
notice dated 04/07/2019 is annexed to the plain as EXh.I. It is
contended that the forms of all the plaintiffs were rejected by the
reasons appearing in front of their respective names. Being aggrieved by
said rejection, plaintiffs have filed this suit.
7. It is contended that nomination form of plaintiff no.1 was
rejected on the ground that the date of joining in respect of proposer,
Mr.Subhash C.Shah was erroneous, form of plaintiff no.2 was rejected
on the ground that joining date was incorrectly mentioned. Nomination
form of plaintiff no.3 was rejected on the ground of incorrect date of
joining. As already pointed out that nomination form of defendant no.4
was rejected on the ground that locker fees was not paid on the date of
declaration of schedule of election. It is contended that due to the
rejections, plaintiffs individually addressed separate letters to defendant
no.2 being their objection to the rejection of nomination. Plaintiff no.1
addressed letter dated 06/07/2019 to defendant no.2, being President
and in said letter plaintiff no.1 put up details of his protest. Copy of
said letter is annexed as Exh.J to the plaint. Apart from above,
Mr.Subhash C.Shah proposer of plaintiff no.1 also issued a
communication dated 06/07/2019 specifically recording that the date
was recorded as was mentioned and informed by the office of the staff.
Copy of communication of Mr.Subhash C.Shah is annexed as Exh.J1 to
the plaint. According to plaintiffs, those communications are not dealt
with, not disputed or not denied and hence assume relevance in the
circumstances of its contents and authenticity. Plaintiff no.2 also
addressed and forwarded a letter dated 05/07/2019 being the protest.
Said letter clearly shows that there was no exact date of joining
mentioned in the register of members and only “April1983 was written
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as the date of joining of plaintiff no.2, therefore plaintiff no.2 could
never have been defaulter.
8. It is contended that plaintiff no.3 raised an objection by his
letter dated 05/07/2019 clarifying the incorrect date in respect of date
of joining was due to fact that since plaintiff no.3 did not know the
exact date of joining and the date provided was by the staff of library
after taking inspection of the record, was mentioned and hence there
was no question of rejection of nomination of plaintiff no.3 on such
ground. Copy of said letter is annexed to the plaint as EXh.K. Plaintiff
no.4 had send an Email dated 05/07/2019 regarding fact that he had
paid locker fee on 13/06/2019 and same was much prior to the date of
declaration of schedule of election hence defendant could not have been
put in the list of defaulters. Copy of said letter is annexed to the plaint
as EXh.L. Plaintiff no.1 received a reply by Email dated 06/07/2019
sent on behalf of defendant no.1. In said Email it was mentioned that
letter received from plaintiff no.1 will be put forwarded to the
Managing Committee for consideration. Copy of said EMail is annexed
to the plaint as Exh.M. All the plaintiffs received similar reply to their
objection. However, defendants continued with the same status of
rejecting the plaintiffs and declared a final list of persons whose
nominations were accepted. Said list was displayed by defendants on
notice board of library on 08/07/2019. Said list was displayed without
calling the meeting of defendants or without considering the objections
of plaintiffs. Defendant no.2 is declared as elected unopposed President,
hence according to plaintiffs entire exercises has been done so that
defendants can continue their operations of managing the library
uninterrupted by trying to remove all the persons who were opposing
the defendants and who were contesting election.
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9. It is contended that the Managing Committee of defendant
no.1 consists of one elected President, VicePresident and 12 other
elected members of Managing Committee. In the instant case, in the
managing committee meeting held on 03/07/2019, which considered
nominations of contesting members, only four members were present.
Rule 18 provides that for a meeting of Managing Committee to be
conducted, a minimum quorum of five members should be present. All
four members were present in the meeting dated 03/07/2019 are in
race in the ensuing election to be held on 03/08/2019 and 05/08/2019.
Plaintiff no.1 by letter dated 06/07/2019 asked defendant no.1 to
provide for entire CCTV footage of said meeting dated 03/07/2019, but
said letter is not is not responded by defendant no.1. Hence it is alleged
that entire conduct of present Managing Committee of defendant no.1
is malafide and mischievous.
10. It is contended that it has been a practice in the past that
the date of joining the library was always kept blank and it was the
library office that being aware and more authentic, used to write on
each nomination form. Moreover, the date of joining has not to be
mentioned as per the provisions of the constitution. Member
prerequisite as mentioned in Rule16A from the constitution of
defendant no.1 are as under;
(i) the member contesting the election should be a member of
the Library with a fiveyear standing;
(ii) the member should not be in the arrear/ default in any
manner of the Library's subscription, Locker fees, fines or
dues, on the date of announcement of the election schedule
and
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(iii) that the member contesting election should be proposed by
the member of at least two years standing.
All above requisites as enumerated in Rule 16(a) of defendant no.1 are
fulfilled by plaintiffs and therefore, their nomination is valid for
contesting the ensuing elections. It is alleged that the defendants as
office bearers have misused their position in rejecting the validly
submitted nomination forms on frivolous grounds thereby defendants
have changed the rules of contesting the elections by conducting an
approach unheard of and taking a hyper technical view by rejecting
valid nomination forms submitted by the plaintiffs.
11. According to plaintiffs, the only requirement in respect of
the proposer or seconder is that the same should be a person who
should not be a defaulter and who should be eligible for voting and
member of at least 5 years standing. There is no ground or condition of
whatsoever nature in the constitution which requires the date of joining
as a mandatory condition for accepting or rejecting the nomination and
when such a condition has been unreasonably put knowing fully well
that most of the members do not remember their date of joining as the
members may have become members in the Library many years, some
even 2530 years back. Further identity cards issued also do not show
the date of joining of a member and hence if other conditions as laid
down in the constitution of defendant no.1 pertaining to proposer or
seconder were met, even in that case, there was no requirement of the
person's nomination being rejected on the ground of incorrect date of
joining being mentioned. According to plaintiffs, the date of joining
would be relevant only to consider the date of membership of
concerned contesting member and or/ the concerned proposer since a
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member having less than five years of membership is not eligible to
contest the election and a member having less than two years of
membership is not eligible to propose any contesting members. The
date in respect of joining was filled up as was informed by the office of
defendant and it was not possible for an individual to specifically
remember exact date of membership and therefore, it cannot be the
ground of rejection of nomination when otherwise criteria were not
alleged to be fulfilled. It is alleged that while rejecting plaintiffs'
nomination, few interested members of Managing Committee had
resorted to pick and choose policy and resorted to selective
discriminations only with a view of avoid contest for crucial posts.
12. It is contended that plaintiffs have approached the Court as
they have apprehension that taking a back door method, defendants are
again seeking to get themselves elected and particularly defendant no.2
is seeking to get himself elected unopposed by taking such a frivolous
ground. It is contended that as the cause of action has arisen on
06/07/2019 this suit is filed urgently without any delay and hence it is
not barred by law of limitation. According to plaintiffs, they have filed
this suit for enforcing their individual and private rights, which are
affected and due to malafide and mischievous conduct of the present
members of defendant no.1, present suit is not falling within any of the
criteria prescribed under Section 50 of the Maharashtra Public Trust
Act, 1950 and as such would not be amenable to be filed only after
leave of the Charity Commissioner as required to be obtained by filing
and/or resorting to the process U/s.51 of the said Act. Hence, according
to plaintiffs, there is no requirement for plaintiffs to approach the office
of Charity Commissioner or there is no requirement for plaintiffs to
obtain such leave before filing present suit as the suit is filed for
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protecting individual right and it is not affecting public at large.
According to plaintiffs, in view of imminent urgency and bearing in
mind the time which a Charity commissioner would take in granting
leave to file the suit, that the grievances of the plaintiffs are simply kept
in abeyance till the next Managing Committee meeting without
disclosing when such Managing Committee meeting would be held and
as such the conduct of the defendants is such as to avoid considering
the objections of plaintiffs by simply deferring the same to undisclosed
date and to hold election in the meantime. Hence according to
plaintiffs. this is a fit case where the requirement of obtaining pre suit
consent/ permission from the Charity Commissioner is waived or
dispensed with, especially bearing in mind the malafide and
mischievous conduct of defendants, who by their such conduct are
deemed to have given up or have disentitled to seek instance of such
presuit consent/ permission from the Charity Commissioner. Even
otherwise defendant no.1 being a Society registered under the
provisions of Registration Act, is governed so far as the functioning and
governing regulations are concerned by the provisions of said Act which
does not prescribed such presuit notice. In support of his case,
plaintiffs' advocate have filed on record the following case laws;
(a) Vinayaka Dev Idagunji & Ors. V/s. Shivaram and Ors.
2005(5) S.C. at page 3081,
(b) Sainath Mandir Trust V/s. Vijaya and Ors.
2003(4) MhLJ at page 187,
(c) Yadavrao Bhimrao Suryawanshi V/s. State of Election
Commissioner, Maharashtra State,
Writ Petition No.6474/2009(Bombay HC Aurangabad Bench)
(d) Mayaraju Ghavghave V/s. Returning Officer and Anr.
2004(5) Bom. C.R. at page 146.
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13. It is pertinent to note here that advocate Mr.Sandeep
Morya appeared for defendants and filed application for rejection of
plaint under Order7 Rule11(d) of CPC in view of Section 50, 51 and
80 of Maharashtra Public Trust Act. Defendants advocate argued that
the decision of notice of motion may be taken without reply of
defendants. Any how, in application filed under Order7 Rule11 of
CPC, defendants have resisted the notice of motion contending that in
view of averments made in para25 of the plaint and more particularly
considering the averments of plaintiff that “that in view of eminent
urgency and bear in mind the time which a Charity Commissioner in
granting leave to file the suit.” According to defendants, this is a fit case
wherein requirement of obtaining presuit consent permission/ was
necessary to be obtained prior to filing of this suit.
14. It is pertinent to note here that prior to arguments of
plaintiffs advocate, defendants advocate Mr.Morya filed above referred
application and thereafter plaintiffs’ advocate has argued that
permission of Charity Commissioner is not necessary for filing of this
suit as plaintiffs’ personal right to contest the election was rejected by
Managing Committee of defendant no.1 by rejecting nomination forms
of application. It is argued that said rejection is contrary to election
byelaws/rules from the Constitution of defendant no.1. According to
plaintiffs’ advocate this court can interfere in election process in
peculiar circumstances as like the circumstances of this suit.
Defendants’ advocate Mr.Morya strongly argued that this Court has no
jurisdiction to entertain this suit without consent/ sanction/ permission
of Charity Commissioner as required U/s.50 and 51 of Bombay Public
Trust Act. Section 50 and 51 of Bombay Public Trust Act, 1950 are as
under;
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“50. Suit by or against or relating to public trusts or
trustees or others
(i) where it is alleged that there is a breach of a
public trust, negligence, misapplication or misconduct on
the part of a trustee or trustees,
(ii) where a direction or decree is required to recover the
possession of or to follow a property belonging or alleged
to be belonging to a public trust or the proceeds thereof or
for an account of such property or proceeds from a trustee,
extrustee, alienee, trespasser or any other person including
a person holding adversely to the public trust but not a
tenant or licensee,
(iii) where the direction of the Court is deemed
necessary for the administration of any public trust, or
(iv) for any declaration or injunction in favour of or
against a public trust or trustee or trustees or beneficiary
thereof,
the Charity Commissioner after making such enquiry as he
thinks necessary, or two or more persons having an interest
in case the suit is under subclauses (I) to (iii) or one or
more such persons in case the suit is under subclause (iv)
having obtained the consent in writing of the Charity
Commissioner as provided in section 51 may institute a suit
whether contentious or not in the Court within the local
limits of whose jurisdiction the whole or part of the subject
– matter of the trust is situate, to obtain a decree for any of
the following reliefs:
(a) an order for the recovery of the possession of such
property or proceeds thereof;
(b) the removal of any trustee or manager;
(c) the appointment of a new trustee or manager;
(d) vesting any property in a trustee;
(e) a direction for taking accounts and making certain
enquiries;
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(f) an order directing the trustees or others to pay to the
trust the loss caused to the same by their breach of trust,
negligence, misapplication, misconduct or willful default;
(g) a declaration as to what proportion of th trust property
or of the interest therein shall be allocated to any particular
object of the trust;
(h) a direction to apply the trust property or its income
cypres on the lines of Section 56 if this relief is claimed
along with any other relief mentioned in the section;
(i) a direction authorising the whole or any part of the trust
property to be let, sold mortgaged or exchanged or in any
manner alienated on such terms and conditions as the court
may deem necessary;
(j) the settlement of a scheme, or variations or alterations
in a scheme already settled;
(k) an order for amalgamation of two or more trusts by
framing a common scheme for the same;
(l) an order for winding up of any trust and applying the
funds for other charitable purposes;
(m) an order for handing over of one trust to the trustees
for some other trust and deregistering such trust;
(n) an order exonerating the trustees form technical
breaches, etc.;
(o) an order varying, altering, amending or superseding
any instrument of trust;
(p) declaration or denying any right in favour of or against
a public trust or trustee or trustees or beneficiary thereof
and issuing injunctions in appropriate cases; or
(q) granting any other relief as the nature of the case may
require which would be a condition precedent to or
consequential to any of the aforesaid relief or is necessary
in the interest of the trust:”
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“51. consent of Charity Commissioner for institution of
suit:
(1) If the persons having an interest in any public
trust intend to file a suit of the nature specified in section
50, they shall apply to the Charity Commissioner in writing
for his consent. [If the Charity Commissioner after hearing
the parties and making such enquiries (if any) as he thinks
first is satisfied that thee is a prima facie case, he] may
within a period of six months from the date on which the
application is made, grant or refuse his consent to the
institution of such suit. The order of the Charity
Commissioner refusing his consent shall be in writing and
shall state the reasons for the refusal.
(2) If the Charity Commissioner refuses his consent to
the institution of the suit under subsection (1) the persons
applying for such consent may file an appeal to the
[Divisional Commissioner] in the manner provided by this
Act.
(3) In every suit filed by persons having interest in any
trust under section 50, the Charity Commissioner shall be a
necessary party.
(4) Subject to the decision of the [Divisional
Commissioner] in appeal under section 71, the decision of
the Charity Commissioner under subsection (1) shall be
final and conclusive.
Thus, it is argued on behalf of defendants that on bare reading of
Sections 50 and 51 of Bombay Public Trust Act, it becomes clear that
plaintiffs’ case is bad in law for want of compliance of those sections. It
is argued that Section 50 of BPT Act starts that the words “no suit”
hence according to defendants’ advocate adinterim relief as prayed
cannot be granted. Defendants’ advocate also argued that it is settled
law that when once election process is started, Court should not
interfere such a process. Defendants’ advocate referred para 26 of the
plaint and pointed out that plaintiffs have mentioned in said para that
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they have urgency therefore, they have directly come to this Court
because the proceedings for getting the leave/ consent from Charity
Commissioner will required the time. Further it is pointed out that
para26 of the plaint plaintiffs have also contended that said consent is
waived.
15. In support of his case, Defendants' advocate has referred
the case between Rajesh Chunilal Meghani V/s. Andheri Recreation
Club and other 2017(5) Mh.L.J. at page 167 in which it is observed
in paras13 and 31 that....
“13. It is clear from the perusal of the above provisions,
that declaration relating to “any right” in favour of or
against trustees or beneficiaries thereof is covered
under the above provisions. The right claimed by the
plaintiffs are apparently not individual rights. Plaint
claims that to keep plaintiffs out of power their
membership is cancelled and then elections were called
and that the membership cancelled is beyond the
Scheme of the Trust. The right to membership cannot
be said to be divorced from being member of the Trust.
The right claimed is that their membership of the Trust
could not have been cancelled by the Trust in the
manner in which it has been done. The right emanates
basically from being member of the Trust. Merely
calling the right civil right will not help. It cannot be
said that it is any independent right not connected with
the affairs of the Trust or management of the Trust. It
has been rightly argued by the learned counsel for
petitioners defendants that if the right is to be enforced
against the Trust, consent of the Charity Commissioner
is necessary under section 50 of the Trust Act. The
contentions in the plaint itself show that the
membership was cancelled with the object of election
which was due on 2nd September, 2012. Change report
regarding the election is already before the Charity
Commissioner and learned counsel for petitioner
submitted that the respondents plaintiffs have already
raised objections. Thus, the dispute whether or not the
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membership has been legally or illegally cancelled, can
be considered when objections regarding the election
which followed, are considered in the Change Report. I
find that the present Suit must be held to be barred as
per section 80 of the Trust At, as the matter is covered
under section 50 of the Trust Act, in case the plaintiffs
want to pursue the dispute before the Court. The
dispute can be decided and dealt with even at the time
of Change Report. Thus, section 80 of the Trust Act
applies and the Suit is not maintainable.”
31. Applying the law laid down in Social Cultural
Association (supra), Gaund Saraswat Brahmin Temple
Trust (supra) and Dr.Rangnath Joshi (supra), it is not
possible to accept Mr.Shah's contention that the reliefs
in the appellant's suit are only to vindicate the
appellant's personal or private rights. In this case, as
noticed earlier, the appellant, answers the definition of
the expression “person having interest” under section
2(10) of the MPT Act. The appellant claims to be
aggrieved by the order/ resolution of the public trust
suspending or purporting to suspend the appellant from
the position held by him with the public trust. The
reliefs applied for by the appellant in the suit also stand
covered by the reliefs referred to in section 50 of the
MPT Act. Admittedly, the appellant had not obtained
prior consent from the Charity Commissioner before the
institution of the suit. Proviso to section 50 of the MPT
Act, in terms provides that no suit claiming any of the
reliefs specified in section 50 shall be instituted in
respect of any public trust, except in conformity with the
provisions thereof. Similarly section 51 of the MPT Act
also provides that the consent of the Charity
Commissioner is necessary for institution of a suit of the
nature specified in section 50 of the MPT Act. For all
these reasons, thee is no case made out to interfere with
the impugned order dated 30 January, 2016.”
16. I have given serious consideration to the arguments
advanced on behalf of the parties. This is the suit in which plaintiffs
have contended that plaintiffs’ society was initially registered under
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Maharashtra CoOperative Society Act, 1860, however plaintiffs have
further contended that defendant no.1 further registered as a public
trust under Bombay Public Trust Act. In para1 of the plaint, plaintiffs
have given both the society registration number and public trust
registration number of defendant no.1, however in last portion of para
26 of the plaint plaintiffs have contended that even otherwise, the
defendant no.1 being a society registered under the provisions of
Maharashtra Society Act, 1860, it is governed by so far as the
functioning under the provisions of said Act. Its governing regulations
are also under said societies registration Act. I have already observed
that this is the interesting case because plaintiffs are intending to have
benefit of both the acts i.e. Society Registration Act and Bombay Public
Trust Act. Actually when it is admitted position that after applicability
of Bombay Public Trust Act, defendant no.1 was registered as Public
Trust, now plaintiffs cannot take the benefit of provisions of Societies
Registration Act under which defendant no.1 was registered initially.
Inspite of it, plaintiffs approbating and reprobating, plaintiffs have
contended that there was urgency for filing this suit and the time would
have been required for obtaining consent/ leave from Charity
Commissioner for filing this suit hence they have directly come to this
Court. According to plaintiffs, from the conduct of defendants said
consent/ leave of Charity Commissioner is waived. At this stage, it
becomes pertinent to point out that the parties cannot give go by to the
provisions of law by saying that conduct of against party was such that
the provisions of law are waived. When Bombay Public Trust Act
provides that prior leave or consent of Charity Commissioner is
necessary for filing the suit between the members of trust in respect of
the business of said trust, conduct of either of the party, in my opinion,
it cannot be said by any of the party that the provisions of law are
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waived. Conducting election of Public Trust by its Managing Committee
is definitely the act relating to the business of defendant no.1 Public
Trust. Admittedly, plaintiffs are members of defendant no.1 Public Trust
and they have challenged the election of defendant no.1 Public Trust.
As such this suit relates to the business of defendant no.1 Public Trust,
hence I find that it was incumbent on the part of plaintiffs to obtain
consent/ leave of Charity Commissioner prior to filing of this suit. As
such prima facie plaintiffs claim can be said to be bad in law for want of
compliance of Section 50 and 51 of Bombay Public Trust Act.
17. Another angle of the matter is that admittedly election of
defendant no.1 Society is to be held on 03/08/2019 and 05/08/2019.
Copy of notice dated 18/06/2019 filed by plaintiffs along with plaint as
Exh.B, it shows that said notice was published on 18/06/2019 and by
said notice the schedule for filing of nomination papers/ forms etc. was
declared. As per the said schedule the purchase and filing of
nomination papers by the members eligible for the contesting election
for the office of President and Vice President and 12 vacancies for the
years 2019 to 2021 was to be made and submitted in the office of
defendant no.1 in between 21/06/2019 to 01/07/2019 as per the
schedule. The last date for accepting nomination papers forms was
01/07/2019 upto 6.00 p.m. Scrutiny of accepted nomination papers as
per said schedule was fixed on 03/07/2019 and the date of displaying
valid nomination of candidates was fixed as 04/07/2019. As per said
schedule last date of withdrawal of candidates was 06/07/2019 and
lastly on 08/07/2019 the list of contesting candidates was scheduled to
be displayed. As such it becomes clear that election process of
defendant no.1 Public Trust is already commenced from 18/06/2019
when the election program is declared and after displaying the list of
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contesting candidates on 08/07/2019 this suit is lodged in the Court on
15/07/2019. As such it becomes clear that after commencement of
election process of defendant no.1 Public Trust this suit came to be
filed.
18. According to plaintiffs they are required to knock the doors
of the Court because their nomination forms are rejected malafidely by
showing frivolous grounds. It is further contended by the plaintiffs that
they have come to Court for enforcing their individual/ private right in
respect of contesting election of defendant no.1, hence according to
plaintiffs their individual/ private rights are not related to the business
of the Public Trust therefore, the suit is maintainable. I have already
pointed out that conducting election of Public Trust is the business of
Trust hence I am unable to accept the above contentions raised by the
plaintiffs. Further, I have already come to conclusion that plaintiffs
were knowing that consent/ leave of Charity Commissioner was
necessary for filing this suit inspite of it they have filed this suit
contending that the process of obtaining such consent or leave would
have required much time.
19. It was strongly argued on behalf of plaintiffs that in
peculiar circumstances of this suit, this Court can even interfere with
the election process of defendant no.1. In democracy the process of
election as immense importance and therefore, even the Hon’ble Apex
Court also seriously consider the prayers for intervening election
process. In such circumstances, as plaintiffs claim is bad in law for want
of permission consent/ leave of Charity Commissioner as required
U/ss.50 and 51 of Bombay Public Trust Act, I find that plaintiffs are not
entitled to the reliefs claimed in the Notice of motion. Not only it, it is
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the settled law that even if election process is completed the election
can be challenged by the aggrieved party by filing election petition.
Hence, it can be said that plaintiffs have alternate efficacious remedy
for raising their grievance and on that ground also plaintiffs’ claim is
barred by Section 41(h) of Specific Relief Act. For all above reasons, I
find that plaintiffs are not entitled to the reliefs sought in this notice of
motion. Hence, I proceed to pass the following order.
O R D E R
Notice of Motion No.2786 of 2019 stands dismissed/ disposed off.
Sd/
(K.P.NANDEDKAR)
25/07/2019 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 25/07/2019
Transcribed on : 29/07/2019
Signed by HHJ on : 30/07/2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
30/07/2019 11.55AM B.R.HATEKAR S.G.
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgment/Order. 25/07/2019
Judgment/order signed by P.O on 30/07/2019
Judgment/order uploaded on 30/07/2019
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