1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
SECOND APPEAL NO. 162 OF 2001
1. Abdul Sattar Sher Mohammad
Qureshi, aged 70 yrs. Occu.
Retired, R/o Tumsar, Distt.
Bhandara.
2. Abdul Galid Abdul Sattar
Ureshi, aged 40 yrs., R/o
Tumsar, Distt. Bhandara.
3. Abdul Khalik Abdul Sattar
Qureshi, aged 45 yrs. Occu.
Business, R/o Tumsar,
Distt. Bhandara.
4. Shakeel Ahmad Abdul Sattar
Qureshi, aged 30 yrs. Occu.
Business, R/o Tumsar,
Distt. Bhandara.
5. Arun Haribhaui Badwike,
aged 40 yrs. Occu. Business,
R/o Tumsar, Distt. Bhandara.
6. Sindhu Arun Badwike,
aged 35 yrs., Occu. Household,
R/o Tumsar, Distt.Bhandara.
::: Downloaded on - 09/06/2013 14:06:19 :::
2
7. Abdul Tawab Abdul Gaffar Patel,
aged 60 yrs. R/o Bina, Tah.
Waraseoni, Distt. Balaghat.
8. Aayesha Abdul Galib Qureshi,
aged 35 yrs. R/o Tumsar,
Distt. Bhandara.
9. Abdul Kadir Abdul Tawab Patel,
aged 40 yrs. R/o Dini, Tah.
Waraseoni, Distt. Balaghat.
10. Noorjahan Abdul Khalik Qureshi,
aged 40 yrs., R/o Tumsar,
Distt. Bhandara.
11. Fellya Tikaram Bhoyar,
aged 45 yrs., R/o Khamlang,
Tah. Tumsar, Distt. Bhandara.
12. Kudus Abdul Gaffar Patel,
aged 35 yrs., R/o Dini, Tah.
Waraseoni, Distt. Balaghat.
13. Maulana Abdul Sattar Qureshi,
aged 65 yrs., R/o Tumsar,
Distt. Bhandara.
14. Thayum Abdul Gaffar Kanoje,
aged 32 yrs., R/o Tumsar,
Distt. Bhandara.
15. Khushal Wasudeo Chachire,
aged 35 yrs., R/o Tumsar,
Distt. Bhandara.
16. Ashok Tikaram Bhoyar,
aged 35 yrs., R/o Kharangaon
Tah. Tumsa, Distt. Bhandara.
::: Downloaded on - 09/06/2013 14:06:19 :::
3
17. Bilkis Abdul Sattar Qureshi,
aged 32 yrs., R/o Tumsar,
Distt. Bhandara.
18. Durga Ashok Bhoyar,
aged 30 yrs., R/o Khairinji,
Tah. Tumsar, Distt. Bhandara.
19. Arun Kothiram Lanjewar,
aged 40 yrs. R/o Dewhadi Road,
Tumsar, Distt. Bhandara.
20. Sindhu Arun Lanjewar,
aged 35 yrs., R/o Dewhari Road,
Tumsar, Distt. Bhandara.
21. Mariyam Abdul Kadir,
aged 90 yrs., R/o Dini, Tah.
Waraseoni, Distt.Balaghat.
22. Hamid hussain Abdul Sattar
Qureshi, R/o Tumsar, Distt.
Bhandara.
23. Saikal Izar Abdul Sattar Qureshi,
R/o Tumsar, Distt. Bhandara.
24. Sabir Anbdul Sattar Patel,
R/o Dini, Tah. Waraseoni,
Distt. Balaghat. APPELLANTS.
VERSUS
1. Haji Mustaq Ahmad Sher Mohd.
aged 58 yrs., Occu. Service,
R/o Tajnagar, Manewada, Nagpur.
::: Downloaded on - 09/06/2013 14:06:19 :::
4
2. Haji Sheikh Ismail Behram,
aged 68 yrs., Occu. Retired,
R/o Tajnagar, Manewada, Nagpur.
3. Jaina Mustaq Kanoje,
aged 28 yrs., occu. Service,
Mailk Urdue High School
Azad Colony, Tajbad, Nagpur.
4. Chandbi Suleman Barade,
aged 64 yrs., Occu. Household,
R/o Tajnagar, Manewada, Nagpur.
5. Dr. Habib Sher Mohmman Kanoje,
aged 62 yrs., Occu. Retired,
R/o Swavlambi Nagar, Processive
Colony, Dr. Rewadkar's Bungalow,
Nagpur.
6. Padmakar Bhandas Ambare,
aged 40 yrs., Occu. Service,
R/o Pachpauli Road, Nagpur.
7. Shashikala Padmakar Ambare,
aged 43 yrs., Occu. Household,
R/o Pachpauli Road, Nagpur.
8. Zebunnisa Suleman Barade,
w/o Mustaq Ahman Khan
Kanoje, aged 35 yrs., Occu.
Service, R/o Rajnagar, Manewada
Road, Nagpur.
9. Mohammad Mustafa,
aged 40 yrs., Occu. Govt. Service,
R/o Mominpura, Nagpur.
10. Joint Charity Commissioner,
Civil Lines, Nagpur. RESPONDENTS.
::: Downloaded on – 09/06/2013 14:06:19 :::
5
Shri. A. M. Gordey, Counsel for the appellants.
Shri S. p. Hedaoo, Counsel for respondent No.2.
Shri. Z. A. Haq, Counsel for the respondents 3 & 8.
Smt. T. Khan, Counsel for respondents 6 & 7.
CORAM: C. L. PANGARKAR J.
Date: 1st DECEMBER 2008.
ORAL JUDGMENT:
This Second Appeal is filed by the original non applicants
before the Deputy Charity Commissioner in a Change Report Enquiry.
2. The facts are as follows:
There is a Public Trust known as Fakkruddin Shikshan
Sanstha at Nagpur. One Haji Mustaq Ahmed and others filed a
Change Report under Section 22 of the Bombay Public Trust Act
before the Deputy Charity Commissioner on 02.04.1992. It was
registered as an Enquiry No. 895 of 1992. It was alleged that the
election of managing committee was held on 19.01.1992 and Jainab
Mustaq Kanoje was elected as Vice President and Chand Bee Suleman,
::: Downloaded on – 09/06/2013 14:06:19 :::
6
Shaikh Ismail and Batul Bee were elected as Members of the Executive
Committee. It was further alleged that Padmakar Bhanudas Ambore,
Vice President, Dr. Habib Sher Mohd. Kanoje, Secretary, Shashikala
Mudholkar and Mohd. Mustafa had resigned. Hence prayer was made
to delete the names of these 4 trustees to substitute the names of
those reporting trustees.
3.
The Change Report was accepted on 04.08.1992. Necessary
entry was taken in Schedule I. This order dated 04.08.1992 was
challenged by filing revision No. 10 of 1992 by the respondent No.5.
The revision and the appeal were allowed and the order passed was
set aside. The matter was remanded by the Joint Charity
Commissioner. Appeal was therefore preferred by Mustaq Mohamad
i.e. the present respondent No.1 before the High Court and the said
appeal was dismissed by the High Court on 15.11.1995. Therefore
review application was preferred being Review Application No. 259 of
1995. Review application was disposed of and the orders passed by
the Additional District Judge as well as Joint Charity Commissioner
::: Downloaded on – 09/06/2013 14:06:19 :::
7
were set aside and the Joint Charity Commissioner was directed to
hear the parties giving them opportunity of personal hearing and then
decide the matter afresh. The Joint Charity Commissioner once again
heard the revision and the appeal being Revision No. 10 of 1992 and
Appeal No. 7 of 1993 and he remanded the matter to the Deputy
Charity Commissioner for enquiry. The Deputy Charity Commissioner
rejected the Change Report on the ground that the parties were
reluctant to lead any evidence in the matter and prove that the change
had occurred. This order was challenged by reporting trustees i.e. Haji
Mustaq and others before the Joint Charity Commissioner once again.
After giving opportunity to the parties and recording the evidence
Joint Charity Commissioner accepted the Change Report. Being
aggrieved by that the present appellants preferred application under
Section 72 before the District Judge. The Additional District Judge
who heard the appeal confirmed the order of the Joint Charity
Commissioner and being aggrieved by that the present appellants that
is the original non applicants have preferred this Second Appeal.
::: Downloaded on – 09/06/2013 14:06:19 :::
8
4. The Second Appeal was admitted on the following
substantial question of law:
Whether findings recorded by the
Authorities that the appellants were not inducted
as life members in the year 1986 is liable to be set
aside for the reason that the material evidencetendered by the appellants on the aforesaid issue
was not considered by the Authorities before
rendering the aforesaid finding?
5.
I have heard Shri Gordey learned counsel for the appellant,
Shri Haq learned counsel for respondents 3 and 8, Shri Hedaoo
learned counsel for respondent No.2 and Miss. T. Khan learned
counsel for respondents 6 and 7.
6. Since this appeal has been admitted on the substantial
question of law as referred to above I need to look into those aspects
alone and none else although the matter was argued at great length by
both the sides.
7. Shri Haq learned counsel for the respondent No.1 at the out
::: Downloaded on – 09/06/2013 14:06:19 :::
9
set contends that there is no substantial question of law involved and
what is being agitated is a question of fact only.
8. Shri Gordey on the other hand submitted that substantial
question of law has been rightly formulated by the Court because
according to him non consideration of the evidence renders the
judgment perverse and whenever the judgment is perverse it becomes
a substantial question of law. Shri Gordey submits that the Change
Report should not have been accepted by the Joint Charity
Commissioner at all. According to him the Joint Charity
Commissioner had failed to consider the evidence available on record,
and had he considered this evidence he would not have come to
conclusion that Change Report should be accepted. He submits that
evidence was enough to conclude that the appellants had become life
members in 1986 of the Trust and were duly elected as office bearers
in 1987 itself. He submits that this would show that the substantial
question of law is rightly formulated. There cannot be two opinions
that where the Court ignores the evidence on record which could turn
::: Downloaded on – 09/06/2013 14:06:19 :::
10
the tables then that question can certainly be agitated in second appeal
and it could be treated as substantial question of law.
9. Shri Gordey submits that the appellants had placed on
record the receipts showing that they had paid the subscription
required to be paid to become life member and their names were in
fact shown as members in the list of the members displayed by the
Secretary.
He submits that they had paid subscription in the year
1986 and the Meeting was held on 02.11.1987 and they had thus
become members. Shri Gordey invited my attention to the receipts Ex.
No. 112 to 115 and the list of members Ex. 116. Shri Gordey submits
that since the appellants became members in 1986 the respondents
were in fact bound to issue notice to the appellants of Meeting dated
19.01.1992. He submits that since no notice was issued to the
defendants although they had become members the meeting dated
19.01.1992 can be said to be illegal and the decisions taken therein
can also be said to be illegal.
::: Downloaded on – 09/06/2013 14:06:19 :::
11
10. Therefore, what needs to be seen is whether the story of the
appellants that they became members in 1986 and whether they were
accepted as members is correct and true? Shri Gordey learned counsel
invited my attention to the receipts filed at Ex. No. 112 to 115. Those
are receipts dated 01.06.1986 in the name of appellants 1 to 4. It is
deposed by appellant No.1 Abdul Sattar before the Joint Charity
Commissioner that these receipts are given to them by Haji Mustaq
respondent No.1 and are signed by respondent No.5 Dr. Habib Sher
Kanoje. The original receipts were brought before the Court. Those
receipts can certainly be said to be proved since Dr. Habib Kanoje does
not enter into witness box to depose that he ever issued such receipts
to the appellants. The question however is whether they were
accepted as members of the Executive Committee at all. Simple
payment of subscription does not make one member of the trust
automatically, what is required to be shown is approval of such
membership by the executive committee or by the general body
meeting. Shri Gordey learned counsel relies on the list of members
dated 29.06.1986 at Ex. 116. There is an endorsement on this list that
::: Downloaded on – 09/06/2013 14:06:19 :::
12
members shown at Sr. No. 8 to 29 were accepted as members in the
meeting held on 01.06.1986. It is even suggested to respondent No.1
Haji Mustaq in the cross examination on behalf of the appellants that
on 01.06.1986 meeting of executive committee was held and 29 new
members were enrolled and the list of the members was published on
29.06.1986. The suggestion is denied but that is theory put up by
appellants. Obviously these appellants who are amongst those 29
members claimed to have been approved as members in the meeting
dated 01.06.1986 but this does not appear to be true and correct. In
fact the other evidence on record completely indicates the theory of
their being in meeting dated 01.06.1986 and the appellants being
accepted as members from that dated is not true. Ex. 119 is a copy of
the covering letter dated 3/11/1987 alledgely sent by Mustaq Mohd.
to Deputy Charity Commissioner forwarding along with it the Change
Report dated 03/11/1987 and other accompaniments. These
documents have been filed by the appellants and therefore they can
certainly be used against the appellants. Along with this Ex. 119 i.e.
Change Report, there is a copy of Resolution said to have been passed
::: Downloaded on – 09/06/2013 14:06:19 :::
13
in meeting held on 02.11.1987. In all 4 Resolutions seem to have
been passed in the alleged Meeting. Resolution no.1 pertains to
appellants 1 to 4 being accepted as Members. Second, pertains to
acceptance of resignation of Padmakar Ambore, Dr. Habib Kanoje,
Shashikala Ambore and Mohd. Mustaq. Third Resolution pertains to
appellant No.1 being elected as Vice President, No.2 as Secretary, No.3
and 4 as Members. Resolution No.4 is in respect of appellant No. 2
Galib Abdul agreeing to provide funds to the Institution. As can be
seen from the Resolution No.1 appellant No.1 to 4 only were approved
as Members on 02.11.1987. Thus if this document Ex. 119 is
considered the theory of meeting being held on 01.06.1986 and their
approval on that date has to be negatived. Consequent to this the list
of the members Ex. 116 which is dated 29.06.1986 has to be treated as
false or forged or fabricated list. Since no meeting was held on
01.06.1986 and the alleged approval is said to be given on 02.11.1987
the list prepared on 29.06.1986 as approved list cannot be said to be
approved list of the members of the trust. Further no Resolution of
meeting dated 01.06.1986 is at all placed on record. It is therefore
::: Downloaded on – 09/06/2013 14:06:19 :::
14
doubtful if at all any meeting was held either on 01.06.1986 or on
02.11.1987.
11. We may refer to oral evidence of P. W. 1 Haji Mustaq, Ex.
119 the Change Report. The covering letter is said to be signed by
Haji Mustaq i.e. respondent No.1. As we have already seen that Haji
Mustaq was examined as a witness in enquiry before the Joint Charity
Commissioner but the appellants had failed to show Ex. 119 and
documents along with it to respondent no.1 Haji Mustaq during the
course of the cross examination. If according to appellants Haji
Mustaq had infact signed the Change Report Ex. 119, he should have
been confronted with those documents. The fact that appellants chose
not to show the documents to Haji Mustaq though he had entered
witness box shows that appellants were apprehensive if Haji Mustaq
would accept those documents as genuine. Further one thing of which
cognizance must be taken is the conduct of the appellants. The
appellants claim to have sent the Change Report on 03.11.1987 as per
the decision in the meeting dated 02.11.1987 Ex. 119. It is tried to be
::: Downloaded on – 09/06/2013 14:06:19 :::
15
shown that the Change Report was actually lodged in the office of the
Charity Commissioner. Although the appellants have tried to show
that they had lodged such a report they never made a request to the
Joint Charity Commissioner or Deputy Charity Commissioner to
reconstruct the record of the Change Report which they had allegedly
lodged. They did not care to see that the said application is registered
and enquiry is made on their application. Even when the present
Change Report in Case No. 895 of 1992 came up for enquiry they did
not insist that their Change Report of 1987 should be considered first
by tracing out the earlier change report. They could have thus helped
the Charity Commissioner to reconstruct the record and get their
Change Report approved. Instead of prosecuting that, they merely
chose to contest this application no. 895 of 1992. This conduct of not
prosecuting own application and opposing the other applications
speaks volumes against the appellants. The inference that can be
drawn from this conduct is that they were quite aware that they will
not succeed in proving the Change Report as well they having become
members in 1986 or even in 1987.
::: Downloaded on – 09/06/2013 14:06:19 :::
16
12. Much ado was made of the conduct of Dr. Habib Kanoje
respondent No.5. He initially contested the application No. 895 of
1992 but later resciled and supported the respondents. Why he did so
is best known to him and nothing turns on that.
13. The conduct of neither party appears to be very fair but then
both the Courts below have considered the preponderence of
probabilities and have been found that the respondents stand on a
better footing. Further it may be mentioned that admittedly
respondent No.1 is working as a President since the year 1984. The
appellants claim that meetings were held on 01.06.1986 and
02.11.1987 and appellant No.1 claims that he was elected as Vice
president in a meeting dated 02.11.1987. Now the respondent No.1
Haji Mustaq was all the while the President of the Trust. We must
therefore, assume that he ought to be present in both these meetings
if at all they were so held. Although Haji Mustaq has entered into the
witness box nothing could be elicited even from him that he had
::: Downloaded on – 09/06/2013 14:06:19 :::
17
presided over these meetings and that he had signed the proceeding
book. Haji Mustaq was never called upon by the appellants to produce
the original proceedings before the Court. Since nothing has been
elicited from Haji Mustaq which they could have, it may not be
assumed that no such meetings as alleged by the appellant were held
on 01.06/1986 and 02.11.1987. Since I have found that no such
meetings were held there was no approval to the membership of the
present appellants. Those documents upon which the appellants seek
to rely upon are of no help to the appellants. Even if they are
considered they do not go to show that appellants had become
Members. Therefore, there was no need to issue any notice to them.
The substantial question of law is answered accordingly. There is no
substance in the appeal. It is dismissed with costs.
JUDGE
svk
::: Downloaded on – 09/06/2013 14:06:19 :::
18
::: Downloaded on – 09/06/2013 14:06:19 :::