Narendra Ramprakash Podar v. Pragnesh Narayan Podar

5.2. He would submit that quorum of the Trust which passed the Resolutions dated 15.03.2018 for deleting the name of Mr. Narayan Tejpal Podar as Trustee and in his place appoint Petitioner No.2 as new Trustee and for change of address of the Trust was in accordance with

6 of 19 provisions of the Trust Deed which cannot be faulted with. He would submit that Revision Applications filed by Respondent No.1 were after 2 years thereafter and were not maintainable despite Respondent No.1 having knowledge of all previous proceedings. He would submit that that Mr. Narayan Tejpal Podar was admittedly indisposed due to medical reasons (in coma) since 2016 since Respondent No.1 was appointed as his legal guardian by this Court. He would submit that as contended by Respondent No.1 there is no provision in the Trust Deed dated 17.06.1975 for appointment of hereditary Trustees and the issue of appointment of new Trustee is to be strictly dealt as per the Deed by the surviving / continuing Trustees only. He would thrust his submission on the locus of Respondent No.1 to challenge the Change Reports. He would submit that Respondent No.1 had no nexus with the Trust nor was he “a person interested” hence he could never challenge the Resolutions of the Trust or the Change Reports which were allowed by the Assistant Charity Commissioner after due enquiry.

5.3. He would vehemently argue that Respondent No.1 was neither an incoming or outgoing Trustee nor a person affected and hence had no locus whatsoever to file the Revision Applications before the Joint Charity Commissioner. He would submit that notice of meeting of the Trustees, exhibits thereto were all annexed to the Change Reports and none of the subsisting Trustees who formed the quorum disputed those documents. He would therefore submit that 7 of 19 drawing an inference in the impugned judgement dated 02.02.2022 merely on the basis of presumption is contrary to settled legal provisions and therefore the impugned orders are bad in law. In support of his above submission, he has referred to and relied upon the decision of this Court in the case of Dr. Subir Kumar Banerjee and Ors. Vs. Neetu Singh and Ors.[2]

5.4. He would submit that Petitioners have acted solely on the basis of clear and unambiguous clauses in the Trust Deed on the composition of quorum for passing the Resolutions and on the aspect of an emergent situation where one of the Trustee becomes unfit to perform his duty as per Clause 25 of the Trust Deed. Hence, he would submit that once Resolutions are passed with the requisite quorum no requirement for any further notice to Respondent No.1 or any other person remains to be given. He would submit that there is no dispute with regard to Mr. Narayan Tejpal Podar’s incapacity to discharge his duties as Trustee since he was indisposed for a long period of time since 2016. He would submit that Revision Applications filed by Respondent No.1 under Section 70A of MPT Act also suffer from delay and laches as they were filed after a delay of 2 years. Hence, he would urge the Court to quash and set aside the twin impugned judgements / orders and allow both the Writ Petitions.

6. Mr. Kamat, learned Advocate for Respondent No.1 in support of the twin impugned orders would submit that the issue of locus standi is irrelevant for the purpose of a Revision Application under Section 70A of MPT Act. He would submit that powers to be exercised by Charity Commissioner under Section 70A are unaffected by locus of the Revision Applicant. He would submit that terms such as “beneficiary” or “a person interested” which exist in Section 41D of MPT Act are conspicuously absent in Section 70A. Hence, he would submit that exercise of the Revisionary powers of the Charity Commissioner can be at the instance of any party or for that matter even suo moto if exigency exists. He would submit that the only requirement is that the Charity Commissioner must be satisfied with regard to the correctness of any finding or order recorded or passed by the Deputy or Assistant Charity Commissioner in the Change Reports.

6.1. Next he would submit that Respondent No.1 in any event squarely falls within the definition of both “beneficiary” and “person having interest”. He would rather submit that Respondent No.1 independently satisfies the requirement of locus standi to maintain both the Revision Applications. He would lay emphasis on Section 2(10)(e) wherein it is stated that person interested in Public Trust should either be a Trustee or beneficiary. Further he would lay emphasis on Section 2(2-A) wherein beneficiary of a trust is defined as a person entitled to avail benefits out of the objects of the Trust. 9 of 19

6.2. He would submit that on bare perusal of the Trust Deed at page Nos.19 in both the Writ Petitions, it is sufficiently demonstrated that the object of Trust is to provide educational relief, medical relief and advancement to unprivileged people and not for any profitable gains.

6.3. He would submit that the Joint Charity Commissioner has correctly opined and returned findings that documents annexed to the Change Reports have not been duly verified and the said Change Reports have not been approved by the Trustees at the registered address of the Trust which is contrary to statutory requirement.

6.4. He would submit that it is trite law that inquiry under Section 22 is a judicial enquiry and Charity Commissioner though not a Court is required to follow the procedure stated under the MPT Act like the Civil Court. He would submit that neither any enquiry was conducted nor were notices inviting objections were issued as mandated under Section 22 of MPT Act, prior to passing of orders accepting the Change Reports filed by Petitioner No.1 which were entirely in favour of his immediate family members and which resulted in usurping the control of the Trust.

6.5. With regard to delay and laches, he would submit that it is settled law that there is no limitation prescribed under the Act for filing Revision Application. He would submit that this is with an intention to empower the Charity Commissioner to exercise the power 10 of 19 of Revision even suo motu. He would submit that Respondent No.1 was not made party to the proceedings for Change Report under Section 22 of MPT Act and both impugned orders were passed without notice to Respondent No.1, hence no question of delay and laches arises in the present case. In support of his above submission, he has referred to and relied upon the decisions of this Court in the case of Virbala K. Kewalram and Ors. Vs. Ramchand Lalchand and Ors.[3] and Vithalrao s/o Sambhajirao Kharpade Vs. Motiram s/o Narsingrao Birajdar and Ors.4.

6.6. Next, he would submit that apart from unsubstantiated assertions regarding Mr. Narayan Podar’s incapacity to discharge his duties as Trustee, Petitioners have failed to produce a single document to establish the said assertion and his condition of being in a vegetative state. Hence, he would vehemently contend that the Assistant Charity Commissioner ought to have initiated an enquiry and should not have merely relied on the basis of bald assertions and state doctor’s certificate issued 20 months ago regarding the health condition of Narayan Tejpal Podar while allowing the Change Report.

6.7. He would submit that malafide conduct of Petitioners needs to be noticed and considered while adjudicating the present matter. He would submit that despite being aware of the order of appointment of Respondent No.1 as the legal guardian of Narayan Tejpal Podar, the 3 1997 (1) Mh.L.J.94 4 2010 (1) Mh.L.J.997 11 of 19 Petitioner No.1 deliberately refrained from issuing notice to Respondent No.1 thereby demonstrating malafide intent to exclude Respondents from the affairs of the Trust and usurp complete control of the Trust.

6.8. He would submit that Joint Charity Commissioner has clearly observed that documents annexed with the Change Report were not examined and no evidence was adduced to substantiate the same. Hence he would submit that the Joint Charity Commissioner has rightly set aside the twin orders passed by the Assistant Charity Commissioner and allowed the Revision Applications. Hence, he would urge the Court to uphold the twin impugned orders and dismiss both the Writ Petitions in the interest of justice.

7. Mr. Cama, learned Advocate appears for wife of Narayan Tejpal Podar - Intervenor. He states that he is a person interested and persuades the Court to take on record a compilation of documents containing pleadings verified by Petitioner No. 1 in Court proceedings earlier which would falsify the entire case of Petitioners and also prima facie prove that the Resolutions passed by the Trust was without due quorum and authority of law. I have allowed him to address the Court and taken the Compilation of Documents on record. The compilation is given to the Advocates for the parties. None of the parties / Advocates dispute the copies of pleadings appended therein. Mr. Cama has adopted the submissions advanced by Mr. Kamat, learned Advocate for 12 of 19 Respondent No.1. For the sake of brevity they are not reiterated herein. Additionally, he would submit that Ramprakash Juggilal Podar (father of Petitioner No.1) was mentally unfit during the very period and after the period when the Resolutions for deletion of Trustee Narayan Podar and change the address of Trust were passed by the Trust according Petitioner No.1’s pleadings filed by him in Court on oath. He has drawn my attention to the Written Statement dated 28.07.2017 filed by Original Defendants namely Petitioner No.1 herein) in R.A.E and R. Suit No.1087 of 2016 before the Small Causes Court at Mumbai wherein in paragraph No. 5 he has specifically stated that Mr. Ramprakash Podar (Petitioner No.1’s father) was mentally unfit for discharging his duties as Trustee during that very period when the Resolutions were passed and he was not mobile. He would submit that if that be so, then admittedly on the showing of Petitioner No.1 himself, there was no quorum on 15.03.2018 when the impugned Resolutions were passed as on that date Petitioner No.1 would be the lone Trustee present and available. He would submit that Petitioner No.1’s stance qua Ramprakash Podar is therefore contradictory on the face of record. Hence, he would persuade the Court to uphold the twin orders passed by the Joint Charity Commissioner.

8. I have heard Mr. Thipsay, learned Advocate for Petitioners in both Writ Petitions; Mr. Kamat, learned Advocate for Respondent No.1; Mr. Patil, learned AGP for Respondent No.2 in Writ Petition 13 of 19 No.15699 of 2022; Mr. Kankal, learned AGP Respondent No.2 in Writ Petition No.14797 of 2023 and Mr. Cama, learned Advocate for Intervenor and with their able assistance perused the entire record in both the Writ Petitions. Submissions made by the learned Advocates for respective parties have received due consideration of the Court.

9. At the outset, it is seen that Order passed by the Charity Commissioner on change report appended at page No. 40 of the Writ Petition in respect of enquiry conducted under Section 22 of the Maharashtra Public Trusts Act is an order passed without giving any reasons. All that is stated in the order is that Assistant Charity Commissioner has perused the contents in the Change Report and gone through the papers and documents below Exhibit 02 to 07 and it is stated that change is held to be legal and valid in the interest of the Trust and justice. This is the only reason. When a question is put to Mr. Thipsay about reasons and adjudication of enquiry under Section 22, he has no answer whatsoever. This question is asked because of the documents appended to the Change Report. It is Petitioner No.1’s own case that Mr. Narayan Tejpal Podar was in coma since the year 2016 and Respondent No.1 was appointed as his legal guardian by this Court. Hence when this was to the knowledge of Petitioner No.1, there is no answer given as to why was Respondent No.1 not given notice regarding the Trust Meeting and the agenda thereto on behalf of Narayan Podar. The argument of locus standi of Respondent No.1 fails 14 of 19 on this count alone. Sub section 2 of Section 22 states that for purpose of verifying contents of entries or to ascertain whether any change has occurred the Deputy or Assistant Charity Commissioner may hold an enquiry in the prescribed manner. It also calls upon the Assistant Charity Commissioner to pass provisional order and call for objections to such change and if any objections are received then to hold enquiry in the prescribed manner and record findings thereon with reasons. The provision envisages a detailed and impartial enquiry.

10. In the present case according to the Trust Deed and as argued by Mr. Thipsay quorum of two Trustees is required to pass the Resolution is also under a cloud for the following reason. According to Petitioner No. 1, he and Ramprakash Podar formed the quorum since the third surviving Trustee namely Mr. Narayan Tejpal Podar was medically unfit. This stand of Petitioner No. 1 about having proper quorum to pass Resolution on 15.03.2011[8] is a false assertion. Petitioner No. 1 himself has filed Written Statement in the Small Causes Court in the eviction proceedings alluded to hereinabove while recording the submissions of Mr. Cama and in paragraph No. 5 thereof has categorically averred that Ramprakash Podar (Petitioner No.1’s father) was in a medically unfit condition 3 months prior to passing of the Resolutions and for 3 months post the passing of the Resolutions. This fact prima facie establishes that on the date of passing of Resolutions i.e. 15.03.2018 as per Petitioner No. 1’s own case, only he 15 of 19 himself was the sole and fit Trustee present and no other Trustee was in a fit condition to complete the quorum. That apart, despite Narayan Tejpal Podar nor his legal guardian i.e. Respondent No.1 was served with any notice of the Resolutions for change of address or change of composition of Trust by Petitioner No. 1 since he was managing the affairs of the Trust.

11. It is settled law that prima facie Section 22 has to be preceded with an enquiry in a judicial manner by investigating into legality and validity of the change as per Change Report submitted especially in such contentious cases which are required to be decided only after holding enquiry as prescribed and provided as per Rule 7. The enquiry as prescribed is mandatory in accordance with procedure for trial of suits under the Presidency Small Causes Court Act, 1882 in Greater Bombay Region and it allows a party to appear either in person or by recognized agent or by pleader. Rule 7A prescribes issuance of public notice and hearing of objections from persons interested in the Trust. This enquiry is not conducted in the present case and the procedure has been given a complete go-by. There is no proof or credential of any document to show that meeting of the Trust was actually conducted after following the due process of law to delete the existing Trustee and substitute him with a new Trustee (Petitioner No.1’s own son) or either for change of address or composition of Trust. 16 of 19

12. What is significant is that there is a clear finding returned in the Joint Charity Commissioner’s order that no notice was given to all Trustees before holding the meeting and passing the contentious Resolutions on 15.03.2018. The reason for seeking change as per Application filed by Petitioner No. 1 is that one of the Trustee Narayan Podar was in coma and bedridden and for proving this fact no enquiry was undertaken to ascertain whether Narayan Podar was indeed bedridden, and what was his status neither any witness was examined or enquiry was conducted. All that the Assistant Charity Commissioner opines is that Change Report is uncontested. What is most intriguing is the fact that the medical certificate pertaining to Narayan Podar appended to the Change Report as one of the Exhibits is dated 31.01.2017 whereas the Trust Meeting and Resolutions are passed on 15.03.2018 i.e. 15 months after the date of medical report and order is passed by the Assistant Charity Commissioner on the Change Report 20 months after 31.01.2017. Therefore a clear doubt arises in the mind as to why no enquiry was made in August 2018 when change report was accepted and allowed almost 20 months after the date of medical report placed before the Assistant Charity Commissioner. Before the Joint Commissioner in appeal, Advocate for Petitioner No. 1 vehemently opposed and argued that since Narayan Podar was in coma since 13.11.2016 therefore there was no question of serving notice upon him. Petitioner No. 1 argued that Change Report was verified by 17 of 19 Assistant Charity Commissioner but however in view of my above observations and findings and the manner in which the Change Report is considered by the Assistant Charity Commissioner, the action of the statutory Officer becomes highly questionable. The Assistant Charity Commissioner has miserably failed to follow the due process of law. No reasons are either given by him in his orders allowing the Change Reports.

13. It is clearly seen in the facts of the present case that Petitioner No. 1 has surreptitiously attempted to usurp the entire control of the Trust for his family’s benefit to the exclusion of the will and intention of the original Trustees and settlors of the Trust. In view of my above observations and findings both Petitions have to fail. All subsequent actions of Petitioner No.1 to now fill up all 5 posts of Trustees with his immediate family members i.e. his son, mother and daughter and seize complete control of the Trust stand vitiated due to setting aside of the orders passed by the Assistant Charity Commissioner and confirmation of the said orders passed by the Joint Charity Commissioner. Petitioner No.1’s conduct amounts to nothing but clearly a vicious attempt to usurp the Trust and its properties for his family’s personal benefit which is glaringly seen on the face of the record and his malafide conduct clearly stands established. Findings returned by the learned Joint Charity Commissioner in paragraph no. 8 of the order dated 02.02.2022 in Revision Application Nos.111 of 2020 18 of 19 and 112 of 2020 do not call for any interference whatsoever and for the above reasons both the twin orders deserve to be upheld. Both orders dated 02.02.2022 passed in Revision Application Nos.111 of 2020 and 112 of 2020 are upheld and confirmed. Both Writ Petitions fail. Writ Petitions are dismissed.

14. I would like to mention in passing that Mr.Thipsay conducted both the present matters on behalf of the Petitioners gracefully.

15. Both Writ Petitions are disposed. [ MILIND N. JADHAV, J. ]

16. Ms. Thakkar, learned Advocate appearing on behalf of Petitioners would persuade the Court to stay the present Judgment to test its validity and legality in the Supreme Court. However in view of the gross facts in the present case and the manner in which Petitioner No.1 has conducted himself to the detriment of the other parties, I am not inclined to accept the request made by Ms. Thakkar. Hence, the request for stay is rejected. [ MILIND N. JADHAV, J. ] 19 of 19 MOHAN AMBERKAR