Bombay High Court High Court

Dinkar Indrabhan Kadaskar vs Grampanchayat Bhagwatipur on 2 December, 2008

Bombay High Court
Dinkar Indrabhan Kadaskar vs Grampanchayat Bhagwatipur on 2 December, 2008
Bench: V.R. Kingaonkar
                               (1)



               IN THE HIGH COURT OF JUDICATURE OF BOMBAY

                         BENCH AT AURANGABAD

                 CIVIL APPLICATION NO.809 OF 2006




                                                                    
                                 IN
                    FIRST APPEAL NO.829 OF 2003




                                            
     01.   Dinkar Indrabhan Kadaskar
     02.   Kacheshwar Sukdeo Kadaskar
     03.   Bapusaheb Changdeo Kadaskar
     04.   Nivrutti Mahadu Kharde
     05.   Babasaheb Birdu Dale




                                           
           No.1 to 5 R/o Bhagwatipur
           Taluka-Rahata, Dist-Ahmednagar
     06.   Harikisan Yadavrao Kharde
     07.   Dattatraya Sahebrao Kharde
     08.   Sayaji Raghunath Kharde
     09.   Laxman Murlidhar Nibe




                               
     10.   Goraksha Dnyandeo Kharde
     11.   Sampatrao Bhagwantrao Khade
     12.
     13.
                    
           Dattatraya Mahadu Shelke
           Kisan Jaywant Kharde
           Nos. 6 to 13 R/o Kolhar (Bk)
           Taluka-Rahata, Dist-Ahmednagar                  APPLICANTS
                   
              VERSUS

     01. Grampanchayat Bhagwatipur
         Tq-Rahata, Dist-Ahmednagar
         Through its Sarpanch
      


         Bhaskar Digambar Kharde
   



     02. Balasaheb Kisan Kharde
         R/o Bhagwatipur, Tq-Rahata
         Dist-Ahmednagar

     03. Haribhau Jijaba Kharde





         R/o Bhagwatipur, Tq-Rahata
         Dist-Ahmednagar

     04. Nandkishor Kondiram Kharde
         R/o Bhagwatipur, Tq-Rahata
         Dist-Ahmednagar





     05. Shankarrao Eknathrao Kharde
         R/o Kolhar (Bk) Tq-Rahata
         Dist-Ahmednagar

     06. Vasantrao Bhagwantrao Kharde
         R/o Kolhar (Bk). Tq-Rahata
         Dist-Ahmednagar

     07. Digambar Bhaurao Kharde               Deleted as per




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                                               (2)

         R/o Kolhar (Bk) Tq-Rahata       Court's order
         Dist-Ahmednagar                 dated 22.08.2007
     08. The Charity Commissioner,
         Maharashtra State,
         3rd Floor, Dr.Annie Besant Road
         Worli, Mumbai 400 018




                                                                                
     09. The Assistant Charity Commissioner,
         Ahmednagar Region, Ganeshwadi,
         Station Road, Ahmednagar            RESPONDENTS




                                                        
                          .....
     Mr.   P.R.Patil, Advocate for the applicants
     Mr.   S.S.Manale, Advocate for respondent No.1
     Mr.   N.K.Kakade, Advocate for respondent Nos. 4 to 6




                                                       
     Mr.   A.I.Deshmukh, Advocate for respondent No.3
     Mr.   S.P.Dound, AGP for respondent Nos. 8 and 9
                          ......

                                               [CORAM: V.R. KINGAONKAR, J.]




                                              
                                               Reserved on   : 17.11.2008
                                               Pronounced on : 02.12.2008


     JUDGMENT :
                            ig                 ----------------------------
                          
     1.           This         application is filed for review of order

     dated        29th     September          2003 rendered by        this      Court,

while disposing of First Appeal No.829/2003 in view of

consent terms filed by respondent Nos. 1 to 7 and to

direct denovo hearing of the appeal.

2. A brief resume of background facts may be

stated as follows:

. There are 3 separate temples of deities

Mahadeo, Jagdamba and Vitthal at village Kolhar under

Shrirampur Tehsil. There are 3 separate trusts for

management of the said temples. A scheme, u/s 50-A

(2) of the Bombay Public Trusts Act, was drawn for

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management of the Trusts. An application was filed

for amalgamation of the three trusts. Consequent upon

inquiry, learned Assistant Charity Commissioner

directed amalgamation of the said three trusts under

caption “Kolhar Bhagwatipur Devalaya Trust” bearing

registration No.A-119. He prepared a scheme in

respect of amalgamated Trust. An application was

moved by respondent Nos. 5, 6 and one Digamber Kharde

for modification of the scheme, invoking provisions of

section 72 of the Bombay Public Trusts Act, before the

District Court bearing Trust Application No.08/1992.

Learned IVth Additional District Judge, Ahmednagar,

held

that the scheme required certain modifications.

The learned Additional District Judge held that the

power of selection of trustees should be given to the

devotees. He observed that the devotees are the

proper persons to judge performance of the trustees

and select them. He directed that the trustees shall

be from village Kolhar and the Gramsabha of the

village shall select the trustees.

3. The judgment and order rendered by the learned

Additional District Judge in Trust Application

No.08/1992 was challenged by way of appeal filed in

this Court. The First Appeal No.829/2003, preferred

by respondents No.1 to 4, came to be disposed of in

view of consent terms filed by the parties. By order

dated 29th September 2003, this Court directed that

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the first appeal stands disposed of in terms of the

compromise.

4. The applicants are not original parties to the

litigation before the Assistant Charity Commissioner

or before the District Court. They are the

inhabitants of village Kolhar (Bk). They claim

themselves to be interested persons in the affairs of

the Trust. They have filed this review application

alleging that the consent terms are collusive inasmuch

as the respondent Nos. 1, 3, 5 and 6 got themselves

declared as life trustees and the affairs of the Trust

would be

managed by the said respondents or through

their legal heirs. It is contended that whole attempt

of bringing about the compromise was to maintain

control over the Trust by the family members of

respondent Nos. 1 to 4 in perpetuity. They would

further submit that the consent terms are contrary to

the provisions of Rule 3 and 3-A of Order XXIII of the

Code of Civil Procedure. They asserted that the

consent terms are outcome of fraud. They would point

out that as per the consent terms, the scheme is

modified to ensure that the trustees shall work during

their whole lifetime and any vacancy arising due to

death or resignation would be filled up as per the

will of the surviving trustees. The applicants are

aggrieved by the consent terms and seek review of the

order rendered in pursuance to the consent terms.

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5. The application is resisted by respondent Nos.

1 to 4 on various grounds. They denied that the

consent terms are outcome of any fraud. They would

submit that the applicants have no locus standi to

challenge the consent terms. They were not parties to

the original proceedings before the Assistant Charity

Commissioner or in the proceedings u/s 72 of the

Bombay Public Trusts Act, 1950 and, therefore, are

incompetent to file the review application. They

asserted that the review application is filed with a

view to harass the trustees. Consequently, they

sought dismissal of the application.

6. The applicants are inhabitants of village

Kolhar. The judgment rendered by the learned

Additional District Judge would make it manifest that

the trustees were to be selected from inhabitants of

village Kolhar (Bk) as per decision of the Gramsabha.

This part of the direction is given serious jolt as

per terms of the compromise because the respondent

Nos.1 to 4 are Grampanchayat and inhabitants of

village Bhagwatipur. The applicants are devotees of

the deities and are persons having interest in the

affairs of the public trust. They answer description

of the expression “persons having interest” as defined

in section 2 (10) of the Bombay Public Trusts Act,

1950. Section 2 (10) of the Bombay Public Trust Act,

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1950 reads as follows:

Sec.2 (10) “Person having interest ” includes-

a) in the case of a temple, a person who is

entitled to attend at or is in the habit of

attending the performance of worship or

service in the temple, or who is entitled to

partake or is in the habit of partaking in the

distribution of gifts thereof.”

7. Considering the nature of modifications,

directed

by the learned Additional District Judge, it

will have to be said that the applicants are aggrieved

persons, being interested in the affairs of the said

Trust. The status of the applicants would give them

legal right to maintain the review application though

they were not parties to the proceedings. This Court,

in “Shapoorji Data Processing Ltd. V/s Ameer Trading

Corporation Ltd.,” (AIR 2003 Bom 228) held that review

petition at instance of person not party to the

proceedings, but being “aggrieved person” is

maintainable. This Court relied on “Smt.Jatan Kanwar

Golcha V/s M/s.Golcha Properties Pvt. Ltd.,” (AIR

1971 SC 374) in support of such conclusion. It is

observed:

“Having heard learned counsel, I am of the

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opinion that expression person aggrieved under

Order 47 Rule 1 is wider in amplitude and

scope than the expression Party under Order 47

Rule 2 which restricts the parties to the lis.

This is the view taken by Apex Court in

Smt.Jatan Golcha (supra). It is also the view

of the Apex Court in the case of K. Ajit (AIR

1997 SC 3277). In the case of K.Ajit in

proceedings arose from an Order of Central

Administration Tribunal. The issues raised

were whether power of review was available to

the Tribunal and whether a person not a party

to

the order could prefer a review. After

considering the scope and effect thereto in

Paragraph 4 of the judgment, the Apex Court

finally observed as under:

“We therefore find that a right of review is

available to the aggrieved persons on

restricted ground mentioned in Order 47 of the

Code of Civil Procedure if filed within the

period of limitation.”

8. Having regard to such a legal position, I am

of the opinion that the applicants are entitled to

file review application. The application cannot be

dismissed for want of locus standi. Applicants may be

deemed as “aggrieved persons” being the interested

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persons in view of section 2 (10) of the Bombay Public

Trusts Act, 1950.

9. Coming to the merits of the rival contentions,

it may be noticed that the order of this Court is

rendered in terms of the consent terms filed by the

parties to the first appeal. Admittedly, the matter

relates to affairs of the Trust properties. It is

necessary, therefore, to see whether due compliance of

order XXIII Rule 3 B of the Civil Procedure Code was

made. The lis before the Court indicated

representative action. It is amply clear that leave

of the Court
ig was not sought for entering into the

compromise. It is also manifest that due notice was

not given by this Court under Sub Rule (2) of Rule 3-B

of Order XXIII of the Civil Procedure Code. The

compliance of Sub Rule (2) of Rule 3-B of Order XXIII

of the Civil Procedure Code is mandatory in nature.

Rule 3-B of Order XXIII of the Civil Procedure Code

reads as follows:

“3B. No agreement or compromise to be entered

in a representative suit without leave of

Court – (1) No agreement or compromise in a

representative suit shall be entered into

without the leave of the Court expressly

recorded in the proceedings; and any such

agreement or compromise entered into without

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the leave of the Court so recorded shall be

void.

(2) Before granting such leave, the Court

shall give notice in such manner as it may

think fit to such persons as may appear to it

to be interested in the suit.

Explanation – In this rule, “representative

suit” means-

a) a suit under section 91 or section 92

b) a suit under rule 8 of Order I,

c) a suit in which the manager of an undivided

Hindu family sues or is sued as representing

the other members of the family,

d) any other suit in which the decree passed

may, by virtue of the provisions of this Code

or of any other law for the time being in

force, bind any person who is not named as

party to the suit.”

10. The Apex Court in “A.A. Gopalkrishnan V.

Cochin DEvaswom Board and others” (2007) 7 SCC 482

held that the High Court can examine validity of the

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compromise decree questioned even by a third party.

It is observed:

“The properties of deities, temples and

Devaswom Boards, require to be protected and

safeguarded by their trustees/archakas/

shebaits/employees. Instances are many where

persons entrusted with the duty of managing

and safeguarding the properties of temples,

deities and Devaswom Boards have usurped and

misappropriated such properties by setting up

false claims of ownership or tenancy, or

adverse
ig possession. This is possible only

with the passive or active collusion of the

authorities concerned. Such acts of “fences

eating the crops” should be dealt with

sternly. The Government members or trustees

of boards/trusts, and devotees should be

vigilant to prevent any such usurpation or

encroachment. It is also the duty of courts

to protect and safeguard the properties of

religious and charitable institutions from

wrongful claims or misappropriation.”

11. It is the duty of the Courts to protect and

safeguard the religious and charitable institutions

from evil hands. It is amply clear on bare perusal of

sub rule (2) of Rule 3B of Order XXIII of Civil

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Procedure Code that the expression “representative

suit” would include any suit filed u/s 91 or 92 of the

Civil Procedure Code. The proceedings u/s 72 of the

Bombay Public Trust Act are akin to lis in such a

representative suit. Obviously, while allowing the

parties to enter into compromise, due notice to

“interested persons” was required to be given. The

Court is also required to see whether the compromise

is in the interest of the Trust. The terms of the

compromise, which are not for welfare of the Trust,

can be rejected notwithstanding consent of the

parties. Therefore, it appears that no such effort

was made by this Court to examine whether the terms of

the compromise were brought about in order to secure

interest of the Trust and to call upon the interested

persons by giving due notice to file objections, if

any, before the consent terms were accepted.

12. Mr.Kakade, learned advocate for the contesting

respondents, would submit that power to review the

order cannot be invoked on basis of reconsideration of

same facts. He seeks to rely on “T. Thimmaiah (D) by

L.Rs. V. Venkatachala Raju (D) by L.Rs.” (2008 AIR

SCW 3980). He also invited my attention to a Division

Bench judgment of Gujrath High Court in “Ahmedabad

Electricity Co. Ltd., V/s. State of Gujarath and

others” (AIR 2003 Guj 157). A Division Bench of the

Gujarat High Court held that mere erroneous decision

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by itself would not permit the Court to undertake

review. The Division Bench held that the review

jurisdiction can be exercised only on the ground of

error apparent on the face of record and not on any

other ground. He also seeks to rely on certain

observations in “Lily Thomas etc V. Union of India &

Ors” 2000 (3) ALL MR 251 (SC). The Apex Court held in

the given case that review application under Order 47

Rule 1 of Civil Procedure Code cannot be treated as an

appeal in disguise. It is further held that it can be

exercised for correction of a mistake and not to

substitute a view.

13. Mr. Patil, learned advocate appearing for the

applicants, invited my attention to judgment of Single

Bench in “Dr.Madan Gopal V. Din Dayal and another”

(AIR 1988 P & H 124). The learned Single Judge,

Hon’ble M.M.Punchhi, as he then was, held that leave

of the Court for purpose of compromise under Order

XXIII Rule 3B ought to be obtained and the compromise

entered into without taking the Court into confidence

and without compliance of Rule 3B would be void ab

initio. Therefore, the order to withdraw the petition

on basis of such compromise was held as capable of

being recalled. In “Vasant Jaiwantrao Mahajan V.

Tukaram Mahadaji Patil” (AIR 1960 Bom 485) this court

observed:

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“If the relevant provision of law has not been

considered at the time of passing the order,

such an order can and should be reviewed if

necessary by the Judge who passes that order

or by his successor.”

14. Considering the background facts of the

present case, it prima facie appears that the terms of

the compromise were brought into existence with a view

to provide controlling power only to certain members

of Kharde family. There is non compliance of Rule 3

of Order XXIII of Civil Procedure Code while passing

the order under review. In these circumstances, it is

necessary to recall the order dated 29.09.2003

rendered in First Appeal No.829/2003. Consequently,

the application is allowed. The order dated

29.09.2003 is recalled and the first appeal

No.829/2003 is restored to its original position.

[ V.R. KINGAONKAR ]
JUDGE

drp/ra809-06

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