RAVINDRA v. GHUGE &Y.G. KHOBRAGADE, JJ.RESERVED ON
Legal Reasoning
( 1 ) ca 9637.24IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCIVIL APPLICATION NO. 9637 OF 2024in WRIT PETITION NO.2149 OF 2024 Shri Sushilsingh Sahebsingh HajariAge: 78 yrs., Occu: Agriculture & Advocate,R/o: Katgharpura, Dharur,Taluka Dharur, Disrict Beed....APPLICANTV/s.1. Pramodkumar s/o Sharadkumar Tiwari,Age: 75 yrs., Occu: Agriculture, 2. Dushant s/o Pramodkumar Tiwari,Age: 45 yrs., Occu: Agriculture, Both resident of: At Post Main Road, Dharur, Tq. Dharur, Dist: Beed.(Original Petitioners)3. The State of Maharashtra,Through the Principal Secretary, Department of Revenue and Forest, Mantralaya, Mumbai.4. The District Collector,Beed.5. The Sub-Divisional Officer,Majalgaon, Taluka Majalgaon, District Beed.6. The Tahsildar, Dharur,Taluka Dharur, District Beed.7. The Sub Registrar, Class - I Beed,Taluka and District Beed. ( 2 ) ca 9637.248. The Sub Registrar Class - I Dharur,Taluka Dharur, District Beed.9. The Chief Officer,Municipal Council Dharur Taluka Dharur, District Beed.... RESPONDENTS….…Mr. Mukul Kulkarni, Advocate for the ApplicantMr. Neha Kamble, AGP for the Respondent-State in WPSr. Advocate Mr. P. R. Katneshwarkar a/w. Ms. A.S. Jadhav for Petitioners 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. Kulkarni, the learned counsel for theApplicant/Intervenor, Mr. Katneshwarkar, Sr. Advocate with Adv. Ms. A.S.Jadhav for the Non-Applicant Nos. 1 & 2/ Ori. Petitioners, Ms. Neha Kamblethe learned AGP for the Non-Applicant Nos.3 to 8/Ori. Respondent Nos. 1 to 6and Adv. Ghatol Patil the learned counsel for the Non-Applicant No. 9/Ori.Respondent no. 7.2.Having regard to the strenuous submissions canvassed on behalf ofboth the sides, the legal questions arises for our consideration that a personwho is the Trustee of the Shri Balaji Mandir Trust Dharur can be said to be ( 3 ) ca 9637.24“Person having interest” in the management/property of the Trust and can hebe said to be a proper party in a dispute in respect of the Trust property ?3.Advocate Mr. Kulkarni, the learned counsel appearing for theApplicant/Intervenor canvassed that, the Applicant is a Trustee of Shree BalajiMandir Trust, Dharur, which is registered under the provisions of the BombayPublic Trust Act 1951 (now by Amendment Mah. 24 of 2012 MaharashtraPublic Trusts Act) vide registration no.A-958 (Bhir) on 14.02.1964. The Trustis having landed property which is registered in Schedule I of the Trust with theAssistant Charity Commissioner, Aurangabad. So also, the present Applicant-Intervenor was a party Defendant in Special Civil Suit No.39/2010 as per orderdated 30.01.2021 passed in Writ Petition No.2093/2020. Further, the Applicantwas impleaded in Appeal No.79/2019 before the Additional District Judge,Majalgaon.4.In the present petition, the Non-Applicant Nos.1 and 2 /Petitionershave challenged the order dated 25.01.2024 passed by the Non-ApplicantNo.4/Collector, Beed restraining the Petitioners from dealing with anytransaction in respect of the Trust property bearing Survey No.359, 363 and451. Since the Applicant is a devotee as well as the Trustee of the Trust,therefore in order to bring true and legal facts as well as the various orderspassed by the Competent Authorities under the Maharashtra Public Trusts Act ( 4 ) ca 9637.24as well as by the Surplus Land Determination Tribunal and by the CompetentCourt in various proceedings and to protect the interest of the Trust and as wellas for complete adjudication, the Applicant is a necessary and proper party.5.Per contra, Mr. P. R. Katneshwarkar, Senior Advocate, appearingfor the Non-Applicant Nos.1 and 2 canvassed that, the Applicant has no locus tointervene and participate in the Writ Petition in any capacity, so also, theApplicant is not concerned with the properties of the Trust involved in thepetition. Since the Non-Applicant Nos.1 and 2/Original Petitioners havechallenged the order dated 25.01.2024 passed by the Non-ApplicantNo.4/Collector Beed restraining the Non-Applicant Nos.1 and 2 as well as Non-Applicant Nos.7 and 8, therefore, they are joined as a party Respondents, andas such the documents which are relied by the Applicant are public documentsare in possession of the Respondent-Authorities. It is further canvassed that thepresent Application is abuse of powers of public Authorities and it is in blatantviolation of dominus litus. Therefore, prayed for rejection of the application. 6.Needless to say that the present Applicant/Intervenor seekingpermission to intervene in the matter or in alternative prayed for issuance ofdirection to Non-Applicant Nos.1 and 2 to implead him as a party Respondentin the writ Petition in which the Non-Applicants 1&2/ori Petitioners havechallenge the order dated 25.01.2024 passed by the Respondent No.4 / ( 5 ) ca 9637.24Collector thereby restrained the Non-Applicants 1 & 2/ori Petitioners as well asNon-Applicant Nos.7 and 8 from dealing with the landed property of the Trustbearing survey nos. 359, 363 and 551 situated at village Dharur, Dist. Beedwhich is registered in Schedule I of the Trust.7.Section 2A of the Maharashtra Public Trusts Act provides definitionof “beneficiary” and Section 2(10) defines “Person having interest” which readsas 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,(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];” ( 6 ) ca 9637.248.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 .9.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 and ( 7 ) ca 9637.24to 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 10.10. 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 aperson 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.” ( 8 ) ca 9637.2411.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.12.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 litis' 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.13.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 ofmultiplicity of proceedings is also one of the objects of the said provision in theCode.
Decision
( 9 ) ca 9637.2414.Since the present Applicant is a Trustee of Shree Balaji MandirTrust, Dharur and the present Non-Applicant Nos.1 and 2 who are claiming tobe the Manager of the Trust and allegedly trying to grab the property of theTrust being their private property and as such by order dated 25.01.2024, theRespondent No.4/ Collector restrained the Non-Applicants 1 & 2/Ori.Petitioners from dealing with the Trust Property, which the applicant wanted toprotect from their clutches. Therefore, considering the scope of Section 2 (2A)and Section 2(10) of the Maharashtra Public Trust Act, the Applicant certainlyfalls within the ambit of “beneficiary” and Person having interest” . Hence, inorder to bring true and correct facts as well as to bring the substantialdocuments on record as well as to protect the interest of the Trust, thepresence of the present Applicant is necessary and proper party. 15.In view of the above discussion, we are inclined to grant thepresent Applicant and proceed to pass the following order:ORDER:i)Civil Application No.9637 is hereby allowed.ii)The Non-Applicant Nos.1 and 2 / Original Petitioners are hereby directedto implead the present Applicant as party Respondent No.8. iii)Necessary amendment be carried out within seven days from today. ( 10 ) ca 9637.24iv)After the amendment is carried out, issue notice to the newly addedRespondent No.8. Learned advocate Mr. Kulkarni waives service of notice onbehalf of Respondent No.8. [Y.G. KHOBRAGADE, J.][RAVINDRA V. GHUGE, J.]mub