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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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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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(7)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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(9)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 onlywith 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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