15 July 2019


Judgments

High Court of Bombay

Rajesh Chunilal Meghani Vs. The Andheri Recreation Club and Ors.

MANU/MH/1143/2017

12.06.2017

Civil

Consent of Charity Commissioner is necessary for institution of suit of nature specified in Section 50 of MPT Act

Challenge in present appeal is to impugned orders made by City Civil Court at Bombay rejecting plaint in Appellant's Suit under Order 7 Rule 11(d) of Code of Civil Procedure, 1908 (CPC). Cause of action as pleaded in suit is suspension or attempted suspension of Appellant from membership of Respondent No. 1, Club, which is admittedly a public trust registered under Maharashtra Public Trusts Act, 1950 (MPT Act). By impugned orders, Trial Judge has accepted case of Respondents that, reliefs applied for by Appellant stand covered under provisions of Section 50 of MPT Act and therefore, suit as instituted, without prior written consent of Charity Commissioner was not maintainable. Trial Judge, in impugned orders, has relied upon provisions contained in Sections 50, 51 and 80 of MPT Act, to hold that, Civil Court lacks jurisdiction to entertain a suit of such nature in absence of prior written consent of Charity Commissioner.

Appellant admits that, he is member of Respondent No. 1, which is a public trust registered under MPT Act. Besides, it is also case of Appellant that, Respondent No. 1 is a society registered under Societies Registration Act, 1860. Section 2(10) of MPT Act, defines expression "person having interest" to include, in case of a society registered under Societies Registration Act, 1860, any member of such society, and in case of any other public trust, any trustee or beneficiary. In terms of averments made by Appellant in plaint, it is clear that, Appellant, answers the definition of expression "person having interest".

Section 50 of MPT Act, makes provision for institution of suits, by or against or relating to public trust or others. It provides that, in any case, where direction of Court is deemed necessary for administration of any public trust, or for any declaration or injunction in favour of or against a public trust or trustee or trustees or beneficiary thereof, Charity Commissioner, after making such enquiry as he thinks necessary may himself institute a suit to obtain any of reliefs prescribed under section 50 of MPT Act. In alternate, two or more persons having an interest, in case the suit is under sub-clauses (i) to (iii), or one or more such persons in case, suit is under sub-clause (iv), having obtained consent in writing of Charity Commissioner, as provided in Section 51 of MPT Act, may institute a suit in Court within a local limits of whose jurisdiction whole or part of subject matter of trust is situate, again, to obtain a decree for any of reliefs specified in Section 50 of MPT Act.

Section 51 of MPT Act, provides that, if the persons having an interest in any public trust intend to file a suit of nature specified in Section 50, they shall apply to Charity Commissioner in writing for his consent. If Charity Commissioner after hearing parties and making such enquiries, if any, as he thinks fit is satisfied that, there is a prima facie case, he may within a period of six months from date on which application is made, grant or refuse his consent to institution of such suit. Order of Charity Commissioner refusing his consent shall be in writing and shall state reasons for refusal. As against refusal of consent, an appeal is provided to Divisional Commissioner. Section 51(3) of MPT Act, provides that, in every suit filed by persons having interest in any trust under Section 50, Charity Commissioner shall be a necessary party.

Section 50(4) of MPT Act, provides that subject to decision of Divisional Commissioner in appeal under Section 71, decision of Charity Commissioner under Section 50(1) shall be final and conclusive. Provisions of the MPT Act have been considered in great details by Supreme Court in Church of North India v. Lavajibhai Ratanjibhai and Ors.. Supreme Court has held that, MPT Act is a special law. It confers jurisdiction upon Charity Commissioner and other authorities named therein. Supreme Court has reiterated and followed the principles in Dhulabhai v. State of M.P., in matter of exclusion of jurisdiction of civil courts. It is held that, jurisdiction of civil courts would be excluded, if there is adequate remedy to do what civil courts would normally do in a civil suit. MPT Act, provides for express exclusion of jurisdiction of the civil court. Bar of jurisdiction created under Section 80 of MPT Act, clearly points out that, a third party cannot maintain a suit so as to avoid rigours of provisions of MPT Act.

In present case, Appellant, answers definition of expression "person having interest" under section 2(10) of the MPT Act. Appellant claims to be aggrieved by order/resolution of public trust suspending or purporting to suspend Appellant from position held by him with public trust. Reliefs applied for by Appellant in suit also stand covered by reliefs referred to in Section 50 of MPT Act. Admittedly, Appellant had not obtained prior consent from Charity Commissioner before institution of suit. Proviso to section 50 of MPT Act, in terms provides that, no suit claiming any of 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, consent of Charity Commissioner is necessary for institution of a suit of nature specified in Section 50 of MPT Act. There is no case made out to interfere with impugned order.

Further, Impugned order dated 26 February, 2016 is not clear. Once it is held that, suit as instituted by appellant is of nature as contemplated by Section 50 of MPT Act, there is no question of non-suiting Appellant by resort to provisions in Section 80 of MPT Act and holding that, there is bar of jurisdiction because question raised in suit is a question which, by or under MPT Act, to be decided or dealt with by any officer or authority under MPT Act and in respect of which, decision or order of such officer or authority has been made final and conclusive. Impugned order is set aside. Appellant is at liberty to apply to Charity Commissioner for permission to institute suit under Section 51 of MPT Act. Appeal partly allowed.

Relevant

Church of North India vs. Lavajibhai Ratanjibhai and Ors. MANU/SC/2531/2005
, Dhulabhai vs. State of M.P. -MANU/SC/0157/1968
: AIR 1969 SC 78

Tags : Suit Maintainability Adequate remedy

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