Smt. Sarojini M Iti Vs Vijaya Nagar Vidhyrthi Nilaya

VIJAYA NAGAR, VIDHYRTHI NILAYA, NEHRU NAGAR, BELAGAVI BY ITS SECRETARY SHRI. SUNIL DEVENDRAPPA YATTINMANI AGE: 54 YEARS, OCC: AGRICULTURE R/O. H.NO. 2808, GURUWAR PETH GOKAK, TQ: GOKAKM, DIST: BELAGAVI -591307.

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SHRI. ARVIND M. ITI, AGE: MAJOR, OCC: AGRICULTURE, R/O: KOMAL, 130A/2, PLOT NO. 01, 19^TH CROSS VIDYAGIRI, BAGALKOT -587102.

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SHRI. BHARATKUMAR M. ITI, AGE: MAJOR, OCC: AGRICULTURE,

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R/O: KOMAL, 130A/2, PLOT NO. 01 19^TH CROSS VIDYAGIRI, BAGALKOT -587102.

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RATI B. ITI, AGE: MAJOR, OCC: AGRICULTURE, R/O: KOMAL, 130A/2, PLOT NO. 01 19^TH CROSS VIDYAGIRI, BAGALKOT -587102.

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SHRI. SHIVAPPA ADIVEPPA KULLUR, AGE: 80 YEARS, OCC: RETD, R/O. “MAHASIDD” PLOT NO. 1699, ANJANEYA NAGAR, BELAGAVI -590016. 6. SHRI. RAMMANNA HANUMAPPA CHOUDAKI, AGE: 74 YEARS, OCC: RETD, R/O. “MAHASIDD” PLOT NO. 1699, ANJANEYA NAGAR, BELAGAVI -590016. 7. SMT. SARASWATI ARVIND ITI, AGE: 43 YEARS, OCC: HOUSE WIFE, R/O: KOMAL, 130A/2, PLOT NO. 01 19^TH CROSS, VIDYAGIRI, BAGALKOT- 587102.

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VEENA S. KULLUR, AGE: MAJOR, OCC: HOUSE HOLD, R/O. GANGA, 232-E WARD TARABAI PARK, KOLHAPUR, DIST: KOLHAPUR, MAHARASHTRA STATE -416003.

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RAVI S. KULLUR, AGE: MAJOR, OCC: HOUSE HOLD, R/O. GANGA, 232-E WARD TARABAI PARK, KOLHAPUR, DIST: KOLHAPUR, MAHARASHTRA STATE -416003.

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SMT. LAXMI R. CHOUDAKI, AGE: MAJOR, OCC: HOUSE HOLD R/O. FLAT NO. 102, A BUILDING, ARJUN NAGAR, SAVEDI, AHAMAD NAGAR, MAHARASHTRA -414003.

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SHRI. ANIL R. CHOUDAKI, AGE: MAJOR, OCC: HOUSE HOLD R/O. FLAT NO. 102, A BUILDING, ARJUN NAGAR, SAVEDI, AHAMAD NAGAR, MAHARASHTRA -414003.

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…RESPONDENTS (BY SRI SANGRAM S. KULKARNI, ADVOCATE FOR C/R1)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND

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227 OF THE CONSTITUTION OF INDIA IS PRAYING TO, ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT OR DIRECTION, BY QUASHING THE ORDER DATED 03-09-2024 PASSED BY THE VIII ADDL. DISTRICT JUDGE BELAGAVI IN MISC. NO. 101/2018 ON I.A. NO. VI VIDE ANNEXURE-E, IN THE INTEREST OF JUSTICE AND EQUITY. PASS ANY SUCH APPROPRIATE ORDERS AS THIS HON’BLE COURT DEEMS FIT, JUST AND PROPER IN THE CIRCUMSTANCES OF THIS CASE, IN THE ENDS OF JUSTICE AND EQUITY.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE M.NAGAPRASANNA)

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The petitioner is before this Court seeking the

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following prayer:

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“a) Issue a writ in the nature of certiorari or any other writ or direction, by quashing the order dated 03-09-2024 passed by the VIII Addl. District Judge Belagavi in Misc. No. 101/2018 on I.A. No. VI vide Annexure-E, in the interest of justice and equity.

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a) Pass any such appropriate orders as this Hon’ble court deems fit, just and proper in the circumstances of this case, in the ends of justice and equity.”

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The dispute between the petitioner and the 1^st respondent-Society looms large on several aspects and therefore the proceedings are pending in Civil Miscellaneous No.101 of 2018 for it having been instituted by the 1^st respondent. Applications are preferred by the petitioner with regard to resolution of certain dispute between the two. This comes to be rejected. The rejection of which is called in question in the subject petition.

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The learned counsel for the respondent Sri.Sangram Kulkarni submits that the Division Bench of this Court has clearly held that under Sections 3 and 7 of the Charitable and Religious Trusts Act of 1920, the

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concerned Court has no jurisdiction to resolve the dispute.

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The Division Bench in Writ Appeal No.100006/2022

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disposed on 27.08.2024 has held as follows:

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“2. AS TO THE EFFECT OF REPEAL OF 1950 ACT ON THE TRUSTS REGISTERED THEREUNDER AND ENACTMENT OF 1997 ACT:

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2.1) The 1950 Act obtained in the erstwhile Bombay Province which included inter alia Dharwad & Belgaum districts, is not in dispute. This Act was struck down by a learned Single Judge of this court in SRI SAHASRA LINGESHWARA TEMPLE vs. STATE OF KARNATAKA5 ; an appeal against the said judgment also has been disposed off in a particular way; when the intra court appeal against the said decision was pending, 1997 Act came to be enacted by the State Legislature and it came into effect from 1.5.2003. Amongst other, it repealed the 1950 Act. However, there is no provision in the new Act which would automatically put an end to the entities that are registered under the provisions of erstwhile 1950 Act. It hardly needs to be stated that hundreds of entities like the trusts, societies, wakfs, have been registered under the said Act. Merely by its repeal, the entities so registered do not commit legal suicide in the absence of contra indication in the statute itself. No Rule or Ruling is brought to our notice supporting the contra position. We jurisprudentially assume that there can be none such.

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2.2) One has to bear in mind that there is a marked distinction between an entity in existence being registered and an entity being brought into existence by very registration: right to associate being constitutionally guaranteed as a fundamental right u/a 19(1)(c), an association can be formed sans registration. Same is the case with a trust, the differences obtaining between them not being relevant to our discussion. A trust or society is not a product of incorporation unlike the companies incorporated under the Companies Act. Ordinarily, a trust is not a legal

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person; conventionally speaking, a trust is an obligation annexed to the property normally held by one inter alia for the benefit of others; it only creates a fiduciary relationship coupled with a justiciable obligation. Some statutes like the Income Tax Act, 1961 may treat trusts as legal persons, is a point apart. Therefore, the question of personality of a trust, registered or not, withering away on the repeal of 1950 Act would not arise. Trusts are formed first and registered subsequently, is not much in dispute. The impugned judgment apparently having a contra inarticulate premise is struck with a legal infirmity warranting our interference.

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2.3) The above being said, the question as to invocability of sections 3 & 7 of the 1920 Act would crop up in the matter. It is a specific case of the appellant-Trust that the new Managing Committees having been formed, approval has been granted by the learned Principal District Judge, as sought for. When asked as to the legal requirement of such approval, learned counsel appearing for the appellant-Trust drew our attention to the provisions of 1920 Act. Section 3 reads as under:

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“3. Power to apply to the Court in respect of trusts of a charitable or religious nature.— Save as hereinafter provided in this Act, any person having interest in any express or constructive trust created or existing for public purpose of a charitable or religious nature may apply by petition to the court within the local limits of whose jurisdiction any substantial part of the subject-matter of the trust is situate to obtain an order embodying all or any of the following directions, namely:—

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(1) directing the trustee to furnish the petitioner through the Court with particulars as to the nature and objects of the trust, and of the value, condition, management and application of the subject-matter of the trust, and of the income belonging thereto, or as to any of these matters, and

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(2) directing that the accounts of the trust shall be examined and audited: Provided that no person shall apply for any such direction in respect of accounts relating to a period more than three years prior to the date of the petition.

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Similarly, it is profitable to see the following text of Section 7:

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7. Powers of trustee to apply for directions.—

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(1) Save as hereinafter provided in this Act, any trustee of an express or constructive trust created or existing for public purpose of a charitable or religious nature may apply by petition to the Court, within the local limits of whose jurisdiction any substantial part of the subject-matter of the trust is situate, for the opinion, advice or direction of the Court on any question affecting the management or administration of the trust property, and the Court shall give its opinion, advice or direction, as the case may be, thereon: Provided that the Court shall not be bound to give such opinion, advice or direction on any question which it considers to be a question not proper for summary disposal.

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(2) The Court on a petition under sub-section (1), may either give its opinion, advice or direction thereon forthwith, or fix a date for the hearing of the petition, and may direct a copy thereof, together with notice of the date so fixed, to be served on such of the person interested in the trust, or to be published for information in such manner, as it thinks fit.

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(3) On any date fixed under sub-section (2) or on any subsequent date to which the hearing may be adjourned, the Court, before giving any opinion, advice or direction, shal l afford a reasonable opportunity of being heard to all persons appearing in connection with the petition.”

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[Sub-section (4) not being relevant, is not reproduced.]

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2.4) A perusal of above provisions does not lend support to the contention that there was any legal requirement of seeking approval to the list of Managing Committee members of trusts of the kind. Counsel/s submission that approval of the kind would grant legitimacy to the formation of the managing committees and that would dispel the possibility of dispute/difference and therefore, approval was sought for, is a poor solace in law. The text & context of the above provisions of the 1920 Act do not support counsel’s view. In any human institution, dispute/difference would arise, and for their resolution, aggrieved parties should approach ordinary civil courts. Factional disputes of the nature cannot be resolved by resorting to the provisions of this Act.

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2.5) The related contention of the Trust that after the repeal of 1950 Act, the position became non liquet and therefore, the government itself had suggested by issuing subject Circulars to invoke the provisions of this Act, is difficult to sustain. When a statute does not contemplate a particular situation and further does not intend to grant redressal, invoking its provisions for the remedy is impermissible, has been decided centuries ago vide Heydon’s Case (1584) 76 ER 637. When asked, learned AAG appearing for the official respondents tells us in all fairness that the said Circulars are not relatable to any provision of 1997 Act; he hastens to add that, although u/s 77, government can issue directions for removal of difficulties, no such direction has been issued, is true. An Under Secretary cannot arrogate to himself such a statutory power and issue the subject Circular. No justiciable rights as debated herein, can be created by such instruments that have been issued unceremoniously. Much is not necessary to elaborate. Therefore, orders of the learned Principal District Judge granting approval to the formation of new Managing Committees of the Trust, are unsustainable.

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3) AS TO RESPONDENT-SOCIETY COPYING NAME OF TRUST AND ENLISTING TRUST PROPERTIES AS ITS OWN:

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3.1) The vehement submission advanced on behalf of the appellant-Trust that the respondent-Society could not get it registered with the duplication of nomenclature of the Trust, has force. Names & symbols, which the humans and their institutions live by, have enormous significance in an organized society. ‘What is there in a name?’ is a wrong question to ask. Nomenclature is a system for naming things and names can be important for a variety of reasons. Name indicates a form that reflects the substance. At times, both are intertwined with each other. Difficulties that may crop up more often than not, because of duplicity of names are myriad; havocs may happen by mistaken identities by virtue of nomenclature per se. The laws relating to copyrights, trademarks and other intellectual property do therefore, repel duplication of names & symbols, subject to all just exceptions.

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3.2) Section 7 of the 1960 Act which enacts the above philosophy, reads as under:

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“7. Societies not to be registered with undesirable names.- No society shall be registered by a name which, in the opinion of the Registrar, is undesirable. A name which is identical with, or too nearly resembles, the name by which a society in existence has been previously registered, may be deemed to be undesirable by the Registrar under this section.”

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This provision as of necessity has to be construed even when one of the entities whose name is duplicated, does not strictly answer the description of ‘society’. Otherwise, its intent may be defeated, and that would be a breeding ground for mischief and consequent litigations. Section 7 of the 1960 Act apparently begins with a negative expression ‘no society shall be registered…’ which makes it mandatory vide DHANRAJ N. ASAWANI VS. AMARJEETSINGH MOHI6. It employs another term of significance namely ‘too nearly resembles the name’. Learned counsel for the appellant is right in submitting that the name of appellant-Trust and that of the respondent-Society is verbatim same and therefore, the jurisdictional Registrar ought not to

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have allowed the society being registered with the same name. This grave mistake, the respondentRegistrar is liable to rectify forthwith and update the records, after giving an opportunity to the respondentSociety only for the limited purpose of suggesting an alternate name. If no such suggestion is made within one month, the registration of the said society shall be struck off and further consequential action in that regard, at his hands, would follow.

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3.3) There is a apparent error on the part of Registrar of Societies in permitting the respondent-Society getting registration with the properties of appellantTrust as it’s own. When that infirmity was notified, he should have at once asked the respondent-Society to rectify the said defect or he himself should have set the same right. In fact, in the earlier round of litigation, we are told, the matter having been examined by a learned Single Judge of this Court, was remanded to the portal of Registrar for consideration afresh after giving an opportunity of hearing to the stakeholders. When it comes to the property of a public charitable trust like the appellant herein, courts & authorities are not just the arbiters but have a greater role to protect the same for the beneficiaries, who may be indeterminate categories of individuals. Therefore, the respondent-Registrar is directed to rectify the mistake forthwith by excluding properties of the appellant-Trust from the records of respondent-Society by passing appropriate order within six weeks. For this also the respondent-Society needs to be heard by a short notice.

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4) Learned Single Judge in W.P. No.101436/2018 having examined the records has issued certain directions to the District Registrar to conduct enquiry into the affairs of Society u/s 25 of 1960 Act. He has not mentioned as to whom the enquiry report should be submitted, although within what period enquiry should be accomplished, has been prescribed. We are in agreement with the said direction as also the other for making payment to the respondent-teacher. These directions have been given having exercised the discretion in the circumstances and in the fitness of things. Despite vehement submission, we have not been shown what rule of reason or of law has been breached as to warrant our interference. What is due

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to a teacher of an institution run by the entity, is a product of his toil and therefore payment needs to be made to him on account of that. An argument to the contrary would be unjust, which the law shuns. Therefore, we do not propose to interfere with the directions in question. That being said, we add that the said enquiry report has to be submitted to the Registrar of Societies, who shall take a call thereon, in accordance with law and within six weeks, of course after giving an opportunity of hearing to the stakeholders.

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5. There is yet another aspect which was vociferously argued. Our advertence is drawn to some observations made by the learned Single Judge in the course of impugned judgment and they give an impression that the Trust could have invoked the provisions of Indian Trust Act, 1882 instead of 1920 Act. For this, he cites certain bye-law of the Trust which in so many words mention the provisions of 1960 Act for accomplishing certain things in the affairs of Trust. It hardly needs to be said that the application of 1882 Act apparently is confined to the private trusts as contra distinguished from public trusts. The very preamble of this Act which reads “An Act to define and amend the law relating to Private Trusts and Trustees” makes it explicit. Even rulings of various High Courts galore to vouch the same. However, this ground even if substantiated does not advance the case of either party. It has long been settled position of law that an appeal to succeed, it is not sufficient to show that the impugned order is wrong; what needs to be demonstrated is that the same is unsustainable. Such unsustainability has not been shown despite fervent submissions.

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In the above circumstances and with the above directions, this appeal is disposed off, costs having been made easy.

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This court places on record its deep appreciation for the able research & assistance rendered by its official Law Clerk cum Research Assistant Mr.Raghunandan K.S.”

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