RAVINDRA v. GHUGE &Y.G. KHOBRAGADE, JJ.RESERVED ON
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( 1 ) ca 3069.24 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCIVIL APPLICATION NO. 3069 OF 2024with CIVIL APPLICATION NO.6045 OF 2024in WRIT PETITION NO.2149 OF 2024 Ashok s/o Tulsiram ShejulAge: 53 yrs., Occu: Agriculture,R/o: 49, Abegaon, At Post, Mothegaon,Tq. Majalgaon, Dist: Beed....APPLICANTV/s.1. Pramodkumar s/o Sharadkumar Tiwari,Age: 75 yrs., Occu: Agriculture, R/o: At Post Main Road, Dharur, Tq. Dharur, Dist: Beed.2. Dushant s/o Pramodkumar Tiwari,Age: 45 yrs., Occu: Agriculture, R/o: At Post Main Road, Dharur, Tq. Dharur, Dist: Beed.(Original Petitioner Nos. 01 & 02)3. The State of Maharashtra,Principal Secretary, Department of Revenue and Forest, Mantralaya, Mumbai.4. The District Collector, Beed,Dist: Beed.5. The Sub-Divisional Officer, Majalgaon,Tq. Majalgaon, Dist: Beed.6. The Tahsildar, Dharur,
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( 2 ) ca 3069.24 Tq. Dharur, Dist: Beed.7. The Sub Registrar, Class - I Beed,Tq. & Dist. Beed.8. The Sub Registrar Class - I Dharur,Tq. Dharur, Dist: Beed.9. The Chief Officer,Municipal Council Dharur Tq. Dharur, Dist: Beed... RESPONDENTS….…Mr. A.S. Bajaj, Advocate for the ApplicantMr. Neha Kamble, AGP for the Respondent-State in WPSr. Advocate Mr. P. R. Katneshwarkar a/w. Ms. A.S. Jadhav forPetitioners in WPMr. S.B. Ghatol Patil, Advocate for the Respondent No.7 in WP…....CORAM : RAVINDRA V. GHUGE &Y.G. KHOBRAGADE, JJ.RESERVED ON :10th September, 2024 PRONOUNCED ON :30th September, 2024 ORDER (Per: Y.G. Khobragade, J.) :-1.Heard Adv. Bajaj, the learned counsel for the Applicant/Intervenor,Mr. Katneshwarkar, Sr. Advocate with Adv. Ms. A.S. Jadhav for the Non-Applicant Nos.1 & 2/ Ori. Petitioners, Ms. Neha Kamble the learned AGP for theNon-Applicant Nos.3 to 8/Ori. Respondent Nos. 1 to 6 and Adv. Ghatol Patil thelearned counsel for the Non-Applicant No. 9/Ori. Respondent no. 7. ( 3 ) ca 3069.24 2.Having regard to the strenuous submissions canvassed on behalf ofboth the sides, the legal questions arises for our consideration that a personwho is neither the Trustee nor the member of the Trust can said to be a “Personhaving interest” in the management of the Trust Property and can he said to bea proper party to the proceeding in respect of the Trust property?3.Adv. A.S. Bajaj the learned counsel for the Applicant/Intervenorcanvassed that, the Applicant is a devotee of Shree Balaji Mandir situated atDharur and regularly visiting the Temple for celebration on different occasions.The Shree Balaji Mandir is a Public Trust registered on 14.02.1964 videRegistration No. A 958 (Bhir) under the provisions of Bombay Public TrustAct,1951 (now by Amendment Mah. 24 of 2012 Maharashtra Public TrustsAct). According to the Applicant, there were 6 Trustees and landed propertiesbearing Survey Nos. 359, 363 and 551 situated at village Dharur Distt., Beedvested with the said Trust. The said landed properties are recorded with theAssistant Charity Commissioner, Aurangabad in Schedule-I of the Trust. TheNon-applicant No. 1/Ori. Petitioner no. 1 was shown as a Manager/ Trusteeand drawing 1/3rd income from said land for performing Pooja-Archana.However, on 25.01.2024, the Non-Applicant4/Ori. Respondent No. 4 - Collectorpassed an order directing the Non-Applicant Nos.7 & 8 /Ori. Res. Nos. 5 & 6not to deal with any transaction in respect of the above Trust properties. ( 4 ) ca 3069.24 Therefore, the Non-Applicant Nos.1 & 2/ Ori. Petitioners filed the Writ Petitionchallenging order dated 25.01.2024 by suppressing the material facts with anintention to grab the Trust Property on the pretext that the said properties aretheir private properties. Therefore, in order to bring true facts on record as wellas certain orders passed by the Surplus Land Determination Tribunal (in shortS.L.D.T.) under the Maharashtra Agriculture Lands (Ceiling and Holdings) Act,1961, order dated 26.01.1989 passed by the Additional Commissioner inrespect of modification of order dated 16.08.1977 passed by the learnedS.L.D.T., as well as certain orders passed in the Civil Proceedings the Applicantis necessary and a proper party to the petition. Therefore, prayed for issuanceof directions against the Non-Applicant Nos.1 & 2/ Ori. Petitioners to impleadthe Applicant as party Respondent or in alternate he may be allowed tointervene in the matter.4.In order to show that the Non-applicants 1 & 2 sold properties ofShree Balaji Mandir Trust, the applicant has filed Civil Application 6045/2024and produced documents i.e. Sale-Deeds which have been executed by theNon-Applicant Nos.1 and 2 / Original Petitioners in favour of Mr. MadhavAmbadas Nirmal, on 08.05.2023 and in favour of Mrs. Ujjwala DhairyashilSolanke on 07.08.2023. ( 5 ) ca 3069.24 5. Mr. Bajaj, the learned counsel for the Applicant relied on the casesof Siddhinayak Construction Pvt. Ltd. V/s. Vikas Motiram Desai and Ors.; 2012(4) Mh.L.J. 913, Chenchu Rami Reddy & Anr. V/s. Government of AndhraPradesh; (1986) 3 SCC 391 and Suresh s/o Shivram Naiknaware and Ors. V/s.Joint Charity Commissioner; Latur & Ors.; 2013 6 Mh.L.J. 754. 6.The Non-Applicant Nos.1 & 2 filed reply and strongly resisted theApplication for intervention. Mr. Katneshwarkar, the learned Senior Counselwith Adv. Ms. A.S. Jadhav for the Non-Applicant Nos. 1 & 2/ Ori. Petitionerscanvass that, the Applicant having no locus to intervene and participate in thepetition in any capacity, as the Applicant is not concerned with the properties ofthe Trust involved in the petition and all necessary parties including statutoryauthorities are already arrayed as Respondents and as such the documentswhich are relied by the Applicant are public documents in possession of theRespondents-Authorities. It is further canvass that the present Application isabuse of powers of public authorities and it is in blatant violation of dominuslitus principle, hence, it is deserved to be dismissed. 7.Needless to say that the present Applicant is seeking permission tointervene in the matter or in alternative seeking issuance of directions againstthe Non-Applicant/ Ori. Petitioners to implead him as Respondent on ground ( 6 ) ca 3069.24 that the applicant is a devotee of Shree Balaji Mandir situated at Dharur andregularly visiting the Temple for celebration of different occasions.8.It is not in dispute that, Shree Balaji Mandir Trust having landedproperties which have been recorded in Schedule I of the Trust, however, theNon-Applicant/Petitioner No.1 as shown as a Manager and is trying to grab theTrust properties by treating it as his private property. Therefore, the Applicantis interested person to protect the properties of the Trust.9.Section 2A of the Maharashtra Public Trusts Act provides definitionof beneficiary and Section 2(10) defines “Person having interest” as under:“(2A) "beneficiary means any person entitled to any of the benefit as per theobjects of the trust explained in the trust deed or the scheme made as perthis Act and constitution of the trust and no other person;)”“(10) "Person having interest" [includes];(a) in the case of a temple, person who is entitled to attend at or is in thehabit of attending the performance of worship or service in the temple, orwho is entitled to partake or is in that habit of partaking in the distributionof gifts thereof, (b) in the case of a math, a disciple of the math or a person of thereligious persuasion to which the math belongs,(c) in the case of waqf, a person who is entitled to receive any pecuniaryor other benefit from the waqf and includes a person who has right toworship or to perform any religious rite in a mosque, idgah, imambara,dargah, maqbara or other religious institution connected with the waqf or toparticipate in any religious or charitable institution under the waqf, ( 7 ) ca 3069.24 (d) in the case of a society registered under the Societies RegistrationAct, 1860, any member of such society, and(e) in the case of any other public trust, [any trustee or beneficiary];”10.Section 51 (1) of the Act provides that, if the persons having aninterest in any public trust intend to file a suit of the nature specified in section50, they shall apply to the Charity Commissioner in writing for his consent. Ifthe Charity Commissioner after hearing the parties and making such enquiries(if any) as he thinks fit is specified that there is a prima facie case, he maywithin a period of six months from the date on which the application is made,grant or refuse his consent to the institution of such suit. The order of theCharity Commissioner refusing his consent shall be in writing and shall statethe reasons for the refusal.” Section 51 envisages right of appeal by the affected party if the CharityCommissioner refuses his consent to the institution of the suit. Prior to thisSection 50 (ii) already envisages that where a direction or decree is required torecover the possession of or to follow a property belonging or alleged to bebelonging to a public trust, a suit by or against or relating to public trust ortrustees or other although may be filed, consent under Section 51 of theCharity Commissioner is clearly required under Section 51 of the Act of 1950 . ( 8 ) ca 3069.24 11.The term ‘Dominus Litus’ is Latin phrase which means ‘the masterof the suit’. To say aptly, the person who was really and directly interested inthe suit as a party, as distinguished from his attorney or advocate. It is for theplaintiff in a suit, to identify the parties against whom he has any grievance andto implead them as defendants in the suit filed for necessary relief. He cannotbe compelled to face litigation with the persons against whom he has nogrievance. Where, however, any third party is likely to suffer any grievance, onaccount of the outcome of the suit, he shall be entitled to get himselfimpleaded. The general rule in regard to impleadment of parties is that theplaintiff in a suit, being dominus litus, may choose the persons against whomhe wishes to litigate and cannot be compelled to sue a person against whom hedoes not seek any relief. Consequently, a person who is not a party has no rightto be impleaded against the wishes of the plaintiff. But this general rule issubject to the provisions of Order 1 Rule 10.12. In Anil Kumar Singh V/s. Shivnath Mishra; (1995) 3 SCC 147,Supreme Court interpreted Order 1 Rule 10(2) in the following manner: “By operation of the above-quoted rule though the court may have power tostrike out the name of a party improperly joined or add a party either onapplication or without application of either party, but the condition precedentis that the court must be satisfied that the presence of the party to be added,would be necessary in order to enable the court to effectually and completelyadjudicate upon and settle all questions involved in the suit. To bring a ( 9 ) ca 3069.24 person as party-defendant is not a substantive right but one of procedure andthe court has discretion in its proper exercise. The object of the rule is tobring on record all the persons who are parties to the dispute relating to thesubject- matter so that the dispute may be determined in their presence at thesame time without any protraction, inconvenience and to avoid multiplicityof proceedings.”13.The theory of “dominus litus” should not be over-stretched becauseit is the duty of the court to ensure that if for deciding the real matter indispute, a person is necessary party, the court can order such persons to beimpleaded. Merely because the plaintiff does not choose to implead a person, isnot sufficient for rejection of an application for being impleaded.14.In Ramesh Hirachand Kundanmal V/s. Municipal Corporation ofGreater Bombay and Ors. [1992] 2 SCR 1, the Hon’ble Supreme Court held thatthough the plaintiff is a 'dominus litus' and not bound to sue every possibleadverse claimant in the same suit, the Court may at any stage of the suit directaddition of parties and generally it is a matter of judicial discretion which is tobe exercised in view of the facts and circumstances of a particular case.15.Order I, Rule 10 C.P.C. enables the Court to add any person asparty at any stage of the proceedings if the person whose presence before theCourt is necessary in order to enable the Court to effectively and completelyadjudicate upon and settle all the questions involved in the suit. Avoidance of ( 10 ) ca 3069.24 multiplicity of proceedings is also one of the objects of the said provision in theCode. When a person is neither a necessary party nor a proper party, the Courtwould not allow him to be added as a party to the suit. The scope of the suitcannot be enlarged and questions which are not involved in the suit cannot bedecided, simply by adding parties. Such addition of parties is not contemplatedunder sub rule (2) of Rule 10 of Order I.16.In Kashinath Trimbak Sane & Ors. V/s. Bharat AtmaramSuryawanshi & Ors.; 2013 (6) Mh.L.J. 853, it has been held that the personswho are entitled to attend at or is in the habit of attending the performance ofworship or service in the temple, or who is entitled to partake or his in thehabit of partaking in the distribution of gifts thereof, are the persons havinginterest in the Trust.17.In Shankarlal Sandhuram Master Ors. V/s. Kedargir Guru Harigir &Ors.; 2017 (2) ALL MR 839, the Single Bench of this Court held that theAppellant in cited case was attending the temple since his childhood and he is adevotee of Lord Shiva and he used to visit Shiva Temple. There are in all 100families belonging to Bathri Teli Samaj, Jalna and all persons from this familyused to visit said temple. Therefore, as per the expression “Person havinginterest” under Section 2 (10) of the Act of 1950 is wide enough to include notonly trustees but also the beneficiaries and other person interested in the trust. ( 11 ) ca 3069.24 The term must be liberally construed as to as to include all the persons whomay be directly or indirectly concerned.18.In Harendra Nath Bhattacharya & Ors. V/s. Kaliram Das (dead) byhis LRs and Ors.; AIR 1972 SC 246, it has been held that, the suit under Section92 of C.P.C. is of a special nature which presupposes the existence of the publictrust of a religious or charitable character. Such suit can proceed only on theallegation that there is a breach of such trust or that directions from the Courtare necessary for the administration of the trust. In the suit, however, theremust be a prayer for one or other of the reliefs that are specifically mentionedin the section. Only then the suit has to be filed in conformity of the provisionsof Section 92.19.In Mahant Harnam Singh V/s. Gurudial Singh & Anr.; AIR 19671415, it has been held that, mere residence in a village where free kitchen isbeing run for providing food to visitors does not create any interest in theresidents of the village.20.In the case in hand, the Applicant merely claimed that he is thedevotee of Shree Balaji idol and regularly visiting temple for prayers ondifferent occasions. It is not the case of the Applicant that he is an ordinarymember of the Trust, much less, he being a Trustee of the Shree Balaji Mandir ( 12 ) ca 3069.24 Trust. No doubt lakhs of people visit various temples to pay obeisance to thedeity like Saibaba Temple, Tirupati Balaji Temple, Lord Ganpati Temple (AshtaVinayak), Vaishno Devi, Kamakhya Devi, Tulajbhavni Devi etc., therefore, thoselakhs of people may have interest in paying obeisance to the deity being thedevotees but they can not said be the persons having interest in the day to dayadministration of the trust, within the meaning of Sec. 2 ( 10) of the Act.Needless to say that, if all the devotees are held to be persons having interest,in such circumstances, it will create mess while dealing with the affairs of theTrust including managing the Trust property. Therefore, considering scope ofSec. 2 (10) of the Act as well as law laid cited herein-above, the applicant cannot be said to be a necessary or proper party, while deciding the legality andvalidity of order dated 25.01.2024 passed by the Non-Applicant4/Ori.Respondent No. 4 – Collector Beed.21.Needless to say that, the documents as well as the orders passed bythe Competent Court and the respective Authorities can be referred by theRespondents. The issue involved in the Application is not directly or indirectlybetween the present Applicant-Intervenor and the Non-Applicant Nos.1 and 2 -Original Petitioners. Therefore, the present Applicant is neither a necessaryparty nor a proper party and no right of the Applicant is likely to be prejudiced. ( 13 ) ca 3069.24 Therefore, we do not find any substance in the Civil Application No.3069/2024and it is rejected.22.Civil Application No.6045/2024 for production of documents isallowed. [Y.G. KHOBRAGADE, J.][RAVINDRA V. GHUGE, J.]mub