PASCHIM VIBHAG SHIKSHAN MANDAL BIJAGARI vs. THE COMMISSIONER and APPELLATE AUTHORITY

: 1 : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 1ST DAY OF DECEMBER, 2021 BEFORE THE HON’BLE MR.JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO.101436/2018 (S-PRO) C/W. WRIT PETITION NO.77680/2013 (GM-KSR), WRIT PETITION NO.81667/2013 (GM-R/C) & WRIT PETITION NO.101972/2017 (GM-R/C)

IN WP NO.101436 OF 2018

BETWEEN

PASCHIM VIBHAG SHIKSHAN MANDAL BIJAGARI TAL and DIST: BELAGAVI, REPRESENTED BY ITS SECRETARY, SRI.DAMODAR S/O DATTU MORE, AGE: 57 EYARS, OCC: AGRICULTURE, R/O: BIJAGARNI, TQ and DIST: BELAGAVI. …PETITIONER (BY SRI.SRINAND A PACHHAPURE, ADVOCATE, SMT.PALLAVI S PACHHAPURE, ADVOCATE, SRI.RAJENDRA R PATIL, ADVOCATE)

AND

: 2 : DHARWAD

AGE: 57 YEARS, OCC: ASST. TEACHER,

NEW ENGLISH HIGH SCHOOL, BIJAGARNI

TAL AND DIST: BELAGAVI. …RESPONDENTS (BY SRI.B.SHARANABASAWA, ADVOCATE FOR R6, SRI.SANJAY S KATAGERI, ADVOCATE FOR R5, SRI.V.S.KALASURMATH, HCGP FOR R1 TO R4, SRI.RAVI S BALIKAI, ADVOCATE FOR R7)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED:15.03.2017 PASSED BY THE 2ND RESPONDENT CONFIRMED IN APPEAL NO.43/2017-18 BY THE 1ST RESPONDENT VIDE ORDER DATED:04.12.2017 MARKED AT ANNEXURE-R & S RESPECTIVELY AND ETC.

IN WP NO.77680 OF 2013

BETWEEN

PASCHIM VIBHAG SHIKSHANA MANDAL BIJAGARNI, 591108 TQ AND DIST:BELGAUM TRUST REGISTERED UNDER THE

: 3 : BOMBAY PUBLIC TRUST ACT, 1950 R/BY ITS PRESIDENT SHRI.TARACHAND MONAPPA JADHAV AGE: 73 YEARS,OCC:AGRICULTURE BIJAGARNI 591 108, TQ AND DIST: BELGAUM …PETITIONER (BY SRI.F V PATIL, ADVOCATE)

AND

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DTD.22.02.2013 PASSED BY THE 2ND RESPONDENT PRODUCED AT ANNEXURE-R ANE ETC.

IN WP NO.81667 OF 2013

BETWEEN

: 4 : AND

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED:04/03/2013 IN MISCELLANEOUS PETITION NO.295/2012 PASSED BY THE LEARNED PRINCIPAL DISTRICT JUDGE, BELGAUM AS PER ANNEXURE-P HEREIN AND FURTHER THE ORDER DATED 09.07.2013 ON I.A.NO.II IN MISCELLANEOUS CASE NO.295/2012 PASSED BY THE LEARNED PRINCIPAL DISTRICT JUDGE, BELGAUM AS PER ANNEXURE-S HEREIN BY ALLOWING THE WRIT PETITION AND ETC.

IN WP NO.101972 OF 2017

BETWEEN

THE PASCHIM VIBHAG SHIKSHAN MANDAL, BIJAGARNI, TQ AND DIST BELAGAVI, BY ITS SECRETARY, SRI DAMODAR DATTU MORE, AGED ABOUT 55 YEARS, OCC: AGRICULTURE, R/AT BIJAGARNI, TQ AND DIST BELAGAVI. …PETITIONER (BY SRI.F V PATIL, ADVOCATE)

AND

: 5 : 2. PASCHIM VIBHAG SHIKSHAN MANDA, BIJAGARNI, A SOCIETY REGISTERED UNDER THE KARNATAKA SOCIETIES REGISTRATION ACT, 1960, REPRESENTED BY ITS PRESIDENT, SHRI GUNDU S/O SONU BHASKAR, AGED 75 YEARS, OCC: RETIRED, R/AT BIJAGARNI, TQ AND DIST BELAGAVI, 591108,

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER PASSED BY THE XI ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELAGAVI, PASSED IN MISC. APPLICATION NO.118 OF 2015 DATED:11.01.2017, COPY AS PER ANNEXURE-'F' AND ALLOW THE MISC. APPLICATION NO.118 OF 2015 BY ALLOWING THE PRESENT WRIT PETITION AND ETC.

THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS, COMING UP FOR ‘PRONOUNCEMENT OF ORDERS’, THIS DAY, THE COURT PASSED THE FOLLOWING:

COMMON ORDER

: 6 : successful have fallen apart resulting in disputes between two sets of groups out of the said 36 people. 2. The disputes between the said groups has resulted in various litigations which will be adverted to during the course of this order. Writ Petition No.77680/2013 3. Writ Petition No.77680/2013 has been filed seeking for the following reliefs:

i. A writ in the nature of certiorari or any other writ, order or direction quashing the order dated 22.02.2013 in No.BEL-S530-2012-13 passed by 2nd respondent produced at Annexure-R. ii. Issue any other writ or direction or order the petitioner is found entitled to.

3.1. The petitioner in Writ Petition No.77680/2013 is Paschim Vibhag Shikshana Mandal represented by its President Sri. Tarachand Monappa Jadhav, who is stated to be aged about 73 years in the year 2013.

: 7 : 3.2. Respondent No.1 is Paschim Vibhag Shikshan Mandal represented by its alleged President Sri. Gundu Sonu Bhaskar, who is also said to be aged about 73 years in the year 2013. 3.3. In the petition, it is contended that the petitioner was a Trust (Society) registered under the Bombay Public Trust Act, 1950 (for short, ‘BPT Act’) with the Assistant Charity Commissioner Belagavi at Registration No.E-660 (BGM) on 20.02.1986 with Sri. Tarachand Monappa Jadhav as a Chairman and Sri. Damodar Dattu More as a Secretary. The main object of the Trust being to impart education. 3.4. The said Trust runs two educational institutions namely, (i) New English High School, Bijagarni, Taluk and District Belagavi and (ii) Brahmaling Vidyalay Hajagol, Taluka Chandgad, District Kolhapur.

: 8 : 3.5. It is stated that Sri. Gundu Sonu Bhaskar, who is the alleged President of respondent No.1 was the Chairman of the petitioner-Trust till 2003 and in the election of office-bearers held on 10.08.2003, Sri. Tarachand Monappa Jadhav was elected as Chairman and Sri. Damodar Dattu More was elected as Secretary and thereafter, Sri. Gundu Sonu Bhaskar ceased to be the President of the petitioner-Trust. 3.6. The BPT Act under which the petitioner was registered came to be repealed with effect from 01.05.2003 and was replaced by the Karnataka Hindu Religious Institutions and Charitable Endowment Act, 1997 (for short, ‘Endowment Act, 1997 or Act of 1997’). 3.7. In view of the same some of the Educational Institutions/Trusts which had been registered under the BPT Act had sought for clarification from the Government of Karnataka regarding the

: 9 : law which would be applicable to such Trusts. Whereupon the Under Secretary to the Revenue Department (Endowment), Karnataka Government had issued a circular dated 19.03.2004 stating that the Trusts which are registered under the BPT Act to which the Endowment Act 1997 is not applicable would be governed by the Charitable Religious Trust Act, 1920 (for short Act of 1920’) by virtue of Section 85(2) of BPT Act. 3.8. Such being the case, the petitioners contend that the petitioner is now governed by the Act of 1920 and they have been carrying on their activities under the said Act of 1920. 3.9. It is alleged that the said Sri. Gundu Sonu Bhaskar has floated a Society under the name and style of ‘Paschim Vibhag Shikshan Mandal’ i.e. respondent No.1 by making an application on 01.09.2012 to respondent No.2 and respondent

: 10 : No.2 has registered the same which is not permissible. No such society could have been registered. 3.10. It is further contended that as per the bye-laws of the petitioner-Trust, elections were to be held once in three years. The aforesaid Sri. Tarachand Monappa Jadhav and Sri. Damodar Dattu More having been elected as President and Secretary, respectively of the Trust on 10.08.2003, they were in office for a period of three years thereafter. Hence, Sri. Gundu Sonu Bhaskar could not have registered a Society as sought to be contended by him. 3.11. The petitioner-Trust in a general body meeting held on 08.07.2012 had elected another Managing Committee for a term of three years from 08.07.2012 to 08.07.2015. The said Sri. Gundu Sonu Bhaskar was not a member of the Managing Committee.

: 11 : 3.12. The petitioner filed a petition under Sections 5 and 7 of the Charitable Religious Trust Act, 1920 (For brevity referred to as Act of 1920) in the Court of the Principal District Judge, Belagavi for approval of the Managing Committee members in Misc.No.295/2012. The learned Principal District Judge, Belagavi by order dated 04.03.2013 allowed the petition approving the list of Managing Committee members. 3.13. Upon the petitioner-Trust coming to know of the registration of the Society by the said Sri. Gundu Sonu Bhaskar, the petitioner-Trust submitted objections to respondent No.2, which was not received by respondent No.2. Hence, the same was sent through registered post acknowledgement due. 3.14. Respondent No.2 without ascertaining and or verifying the existence of the petitioner-Trust under the BPT Act and now under the Act of

: 12 : 1920, illegally registered respondent No.1- Society on 01.09.2012 under the Karnataka Registration of Societies Act, 1960. (for brevity referred to as KSR Act). 3.15. The petitioner being aggrieved by the same, had preferred Writ Petition N0.70187/2012 which was disposed of on 15.01.2013 keeping the order of registration in abeyance till objections filed by the petitioner were considered by respondent No.2. 3.16. It is further stated that respondent No.2 issued a notice on 02.02.2013. The petitioner filed an application to dismiss the application for registration filed by respondent No.1 since the same was not permissible. The petitioner also submitted his detailed objections to respondent No.2.

: 13 : 3.17. It is contended that respondent No.2 without holding any enquiry passed an order on 22.02.2013 reviving the order of registration dated 01.09.2012 and it is this order dated 22.02.2013 that the petitioner is aggrieved by and has challenged in Writ Petition No.77680/2013. 3.18. The main grounds of challenge are that the KSR Act is not applicable and it is the Act of 1920 which is applicable. The petitioner having been registered under the Act of 1920, respondent No.1 could not have registered the same under the KSR Act. 3.19. Even otherwise, respondent No.2 in terms of the order passed by this Court in Writ Petition No.70187/2012 was to hold an enquiry and thereafter decide the matter. There being no enquiry held, mere rejection of the objection raised by the petitioner is without any basis and

: 14 : as such it is contended that the order passed by respondent No.2 dated 22.02.2013 dismissing the objections filed by petitioner and reviving the registration of respondent No.1 is required to be set aside. 3.20. Objections are filed to the said writ petition, in the objections it is contended that the writ petition is devoid of merits. The petitioner has suppressed the material facts. 3.21. The filing of miscellaneous case No.295/2012 under the Act of 1920 was behind the back of respondent No.1. 3.22. The said Act of 1920 is not applicable to the erstwhile Trust registered under the BPT Act. The petitioner represented by its President had not arrayed any person as respondents in the said miscellaneous petition and thereby suppressing the material facts has obtained an order in its

: 15 : favour without respondent No.1 and or the other trustees of the said Trust being aware of the reliefs sought for in the said miscellaneous petition. 3.23. It is contended that there were 36 trustees of the said Trust all of whom had to be informed and put on notice as regards the proposed registration and permission/consent to be obtained under the Act of 1920, without which the same could not have been filed. 3.24. The same not having been done, only a few members of the Trust having approached the District Court in the aforesaid miscellaneous petition, the same was done only to usurp the management of the Trust and to keep out the respondent and other trustees out of management. The same amounts to fraud and misrepresentation and therefore, it is contended that the petitioner has to be strictly dealt with.

: 16 : 3.25. The order dated 22.02.2013 passed by respondent No.2 is sought to be supported by respondent No.1 contending that all the aspects relevant to be taken into consideration have been so taken into consideration. The registration as a Society is contended to have been carried out in a proper and required manner. 3.26. It is further stated that a notice had been issued on 03.06.2012 to all the Members of Mandal/Trust including the Members of the petitioner. Notice having been served as regards the proposed meeting on nearly 29 persons personally, on others, it was sent by registered post and the acknowledgement card thereof has been produced. 3.27. It is further contended that in pursuance of the notice calling for the meeting, a meeting was held wherein it was resolved to register a Society

: 17 : and thereafter the Society came to be registered. 3.28. A challenge having been made to such registration in Writ Petition No.70187/2012 where the Respondent was directed to carry out an enquiry as regards Registration it is contended by respondent No.2 that following due procedure an enquiry was held and the registration of respondent No.1-Society was held to be valid and legal. 3.29. In the said objection it is contended that challenging orders passed in Misc.No.295/2012, a Writ Petition No.81667/2013 has been filed by respondent No.1. 3.30. On the above basis it is stated that the Writ petition is required to be dismissed.

: 18 : Writ Petition No.81667/2013 4. Writ Petition No.81667/2013 has been filed by Paschim Vibhag Shikshna Mandal, Bijagarni represented by its alleged President Sri. Gundu Sonu Bhaskar and its Secretary Sri. Arjun Krishna Nilajkar against Paschim Vibhag Shikshna Mandal represented by its alleged Secretary Damodar Dattu More and the Registrar of Societies, seeking for the following reliefs: i. Issue a writ in the nature of certiorari or any other appropriate writ or order or direction, by quashing the order dated 04.03.2013 in Miscellaneous Petition No.295/2012 passed by the learned Principal District Judge, Belgaum as per Annexure- P herein and further the order dated 09.07.2013 on I.A.No.II in Miscellaneous Case No.295/2012 passed by the learned Principal District Judge, Belgaum as per Annexure-S herein by allowing the writ petition. ii. Issue such any other order or writ or direction that this Hon’ble Court may deems fit in the facts and circumstances of this case in the interest of justice and equity.

4.1. The order or direction dated 04.03.2013 in Miscellaneous Petition No.295/2012 passed by the learned Principal District Judge, Belagavi has been brought in question.

: 19 : 4.2. The facts stated in Writ Petition No.81667/2013 are more or less similar to that stated in Writ Petition No.77680/2013. 4.3. It is further stated that upon repeal of the BPT Act, the petitioner being a Trust being involved in educational activities the only recourse available was for registration under the KSR Act and the Act of 1920 was not applicable to the activities of the said Trust since the Trust did not carry out any charitable or religious activities and more particularly religious activities. 4.4. As regards the management committee of respondent No.1, it is contended that though there was an election in the year 2003, the term of office came to end in 2006. Thereafter, there had been no election which had been held and as such the very operation of the educational institution had come to standstill.

: 20 : 4.5. It is on account of this that disputes arose between various members/trustees. It is further contended that the accounts were not properly maintained. The account books, bank passbooks, etc., despite being sought for were not furnished and it is in that perspective that considering that BPT Act was not applicable in order to register a Society, the petitioner had approached the Registrar of Societies for registration thereof. 4.6. It is contended that in terms of the circulars issued by the Government of Karnataka, the erstwhile Trust was registered as a Society since as per the clarification upon the repeal of BPT Act it is the KSR Act that would be applicable. 4.7. There are various allegations that have been made against respondent No.1 therein and its office bearers contending that they have resorted to fraud on the members of the Trust

: 21 : by filing Misc.No.295/2012 behind the back of the trustees. 4.8. During the proceedings filed in Misc.No.295/2012, citation/paper publication was taken out in the newspaper ‘Hasiru Kranti’ which is not a well-known newspaper and the said publication was taken out only to keep the proceedings secret/hidden from the various members of the Trust so that they could not participate in the said Misc.No.295/2012 and taking advantage of the same, orders were secured in the said Misc. No.295/2012 approving the list of Managing Committee submitted therein. 4.9. When the same came to be challenged by the petitioner by filing a review petition, objections had been filed by the respondent contending that no review petition could be filed by the petitioner on account of the petitioner not being

: 22 : a party to the proceedings. This fact alone would establish that the conduct of the petitioner is malafide and that the petitioner has resorted to filing of miscellaneous petition behind the back of the members/trustees to take over the management of the Trust and the schools. 4.10. The review petition filed on 09.07.2013 came to be dismissed on the ground that the newspaper had wide circulation and that a review petition could only be filed by a person who is a party to the proceedings. Hence, on account of the said dismissal, the petitioners in Writ Petition No.81667/2013 are before this Court challenging the order dated 04.03.2013 passed in Misc.No.295/2012 as also the order dated 09.07.2013 passed on I.A.No.2 (application for review) in Misc.No.295/2012 both passed by the learned Principal District Judge, Belagavi.

: 23 : Writ Petition No.101972/2017 5. Writ Petition No.101972/2017 has been filed by Paschim Vibhag Shikshan Mandal represented by its Secretary Sri. Damodar Dattu More against the Block Education Officer, Paschim Vibhag Shikshan Mandal, Bijagarni, a Society and Sri. Arjun Krishna Nilajkar, Secretary. By way of the said writ petition the following reliefs are sought for: i. Issue a writ in the nature of certiorari or any other writ or direction and set aside the order passed by the XI Additional District and Sessions Judge, Belagavi, passed in Misc.Application No.118 of 2015 dated 11.01.2017, copy as per Annexure-'F' and allow the Misc.Application No.118 of 2015 by allowing the present writ petition and /or, ii. Pass such other order or orders as this Hon’ble Court deems fit in the facts and circumstances of the case.

5.1. The proceedings in Misc.No.118/2015 were filed to approve the Managing Committee of Mandal from 05.06.2015 to 05.06.2020.

: 24 : 5.2. In the said proceedings, the Society and Arjun Krishna Nilajkar had filed objections contending that the same were not maintainable. Evidence was led and the learned District and Sessions Judge, Belagavi dismissed the miscellaneous petition. 5.3. It is contended that the said order passed by the learned District and Sessions Judge, Belagavi is without considering the earlier orders more particularly that in Misc.No.295/2012 aforementioned while dealing with the facts in Writ Petition No.81667/2013. 5.4. It is therefore contended that the learned District Judge ought to have allowed Misc.No.118/2015 and approved the Managing Committee. 5.5. Objections have been filed by respondent Nos.2 and 3 contending that in the earlier proceedings filed in Misc.No.295/2012 the respondents had

: 25 : not been made as a party. The facts relating to the challenge and filing of the review petition had not been mentioned. 5.6. It is contended that a Society had already been registered and in fact, the Trust registered under the BPT Act provided for the applicability of Sections 9, 10 and 13 of the KSR Act, insofar as any amendments to the bye-laws are concerned and the applicability of Sections 21, 22 and 23 of the KSR Act insofar as the amalgamation of the Trust is concerned. Hence, the very Trust document providing for the applicability of the KSR Act upon the repeal of the BPT Act, there was a requirement to register the same under the KSR Act which has been so done. 5.7. All these facts having been suppressed in Misc.No.118/2015, the same having been brought to the notice of the learned Principal District Judge, the learned Principal District

: 26 : Judge has taken all of them into consideration and rightly dismissed the said petition. Hence, it is contended that this Court is not required to intercede in the matter. Writ Petition No.101436/2018 6. Writ Petition No.101436/2018 has been filed seeking for certiorari to set aside the order bearing No.JI3/SHASHIA/MUSHI/YHP/67/2013-14/4342 dated 15.03.2017 passed by respondent No.2 confirmed in Appeal No.43/2017-18 by respondent No.1 therein. The petitioner in Writ Petition No.101436/2018 is Paschim Vibhag Shikshan Mandal represented by its Secretary Sri. Damodar Dattu More and has been filed against the Commissioner and Appellate Authority of Public Education, Director, Department of Public Education, Deputy Director, Department of Public Education, Block Development Officer, Sri. Arjun Krishna Nilajkar and Sri. Yashawant Hanamant Patil and Sri. Maruti Vhallyappa Kamble, who has been

: 27 : impleaded subsequently. In the writ petition the below reliefs are sought for: i. To issue a writ of certiorari setting aside the order bearing No.JI3/SHASHIA/MUSHI/YHP/67/2013-14/4342 dated 15.03.2017 passed by the 2nd respondent confirmed in Appeal No.43/2017-18 by the 1st respondent vide order dated 04.12.2017 marked at Annexure-R & S respectively and pass any other order as deems fit by this Hon’ble Court, in the ends of justice..

6.1. The basic grounds in the aforesaid writ petition are that on account of allowing of the proceedings in Misc.No.295/2012, it is the Trust registered under the Act of 1920 which is in charge of the management of the educational institution. 6.2. The Society which has been registered under the Societies Registration Act has no such power to administer the educational institution. Though the Society is not in charge of the management, the Society is conducting the management of the educational institutions as regards which there

: 28 : have been various complaints filed in the office of the Commissioner of Education as also before the Deputy Director of Public Instructions. 6.3. The actual management is vested with the Trust under the Act of 1920 who had promoted Sri. Maruti Vhallyappa Kamble as Headmaster of the English High School by resolution dated 07.09.2014 and sent the same to respondent No.4-Block Education Officer for approval. However, the said Block Education Officer rejected the proposal on the ground that a Writ Petition No.81667/2013 was pending before this Court. However, permitted withdrawal of salary by Sri. Maruti Vhallyappa Kamble. 6.4. It is contended that the Block Education Officer ought to have approved the promotion of Sri.Maruti Vhallyappa Kamble.

: 29 : 6.5. In the meanwhile, respondent Nos.3 and 4 approved the appointment of respondent No.6 as the Headmaster on a proposal being sent by the Society. Challenging the same, Writ Petition No.108755/2014 had been filed. The said petition came to be withdrawn accepting that Sri.Maruti Vhallyappa Kamble could not be appointed as a Headmaster. The said writ petition came to be withdrawn. 6.6. It is contended that the operation and management of the educational institution is being run by removed members of the Trust, who have no locus standi to do so. Reference is made to the orders passed in Misc.No.295/2012, the revision application etc. 6.7. In the meanwhile, the aforesaid petition has been filed aggrieved by the Society having suspended Sri.Maruti Vhallyappa Kamble (respondent No.7) and approved the promotion

: 30 : of Sri.Yashawant Hanamant Patil (respondent No.6) which was approved by respondent No.3 and confirmed by respondent No.1. 7. The above being the various challenges which have been made in the various petitions filed, Sri.F.V.Patil, learned counsel for the petitioner in Writ Petition Nos.77680/2013, 101972/2017 has submitted as under: 7.1. Paschim Vibhag Shikshana Mandal has been registered in the year 1986 more particularly on 20/2/1986 under the BPT Act with 36 members running two schools on the repeal of the BPT Act in terms of the clarification issued by the under Secretary, Revenue Department dated 19/3/2004, Petitioner in WP No.77680/2013 would be governed by the Act of 1920, the petitioner had approached the District Judge in terms of Sections 6 and 7 of the Act 1920 for approval of the Managing Committee.

: 31 : 7.2. He submits that the said registration of the petitioner trust is a deemed registration in pursuance of the clarification issued by the under Secretary, Revenue Department, arising out of and repeal of the BPT Act and there was no requirement for a separate registration under the KSR Act in terms of Annexure-B to the petition, namely, the original constitution. 7.3. The trustees are the final authority insofar as the running of the institution is concerned. The trustees have decided to adopt the Act of 1920 in pursuance of the direction issued by under Secretary, Revenue Department, the same cannot be questioned by anyone much less the respondent. 7.4. By relying on the affidavit filed by Sri. Gundu Sonu Bhaskar in OS No.220/2005, he submits that the said Gundu Sonu Bhaskar has accepted that Sri. Tarachanda Monappa Jadhav is the

: 32 : President and Sri. Damodar More is the Secretary of the Trust and that the said body is in control and management of the Trust. He refers to Clause 8(ii)(b) of the original constitution of the Trust to contend that trustees have the powers to hold an enquiry and take disciplinary action including cancellation of membership of the members of the institution and it is in pursuance thereof that membership of Sri. Gundu Sonu Bhaskar and several others has been cancelled by relying on Clause 33 of the original constitution, he submits that there is no dissolution which has occurred as regards the Trust in question. 7.5. In pursuance of the enquiry, 16 members have been removed and it is these trustees who are acting against the interest of the Trust and have formed separate institution which is not maintainable. He relies on Section 85 of the BPT

: 33 : Act to contend that in terms of the BPT Act, Religious Endowment Act 1863 has been repealed, so was the Act of 1920, repealed. 7.6. On the repeal of the BPT Act, the Act of 1920 came back into operation and the said Act would apply to the petitioner trust. 7.7. The repeal was not as much a repeal since the Act of 1920 in terms of schedule-A to the BPT Act was kept in abeyance and it is only Charitable and Religious Act 1863 which has been repealed. 7.8. He submits that by virtue of Section 78 of the Act of 1997, the BPT Act came to be repealed and therefore, it is the Act of 1920, which came into operation and no fault can be found with the action taken by the petitioners. 7.9. He relies upon the decision of the Bombay High Court in Shyamabai Surajkaran Joshi and

: 34 : Others etc. Vs. Madan Mohan Mandir Sanstha reported in AIR 2010 Bombay 88, more particularly para 18 thereof which is reproduced hereunder for easy reference:- 18. In other words, a society formed for religious or charitable purpose or for both and registered under the Societies Registration Act, 1860 mentioned in the latter part of the definition clause of Section 2(13) of the Bombay Public Trusts Act, 1950 by itself will not get the status of “public trust” within the meaning of Section 2(13) of the Bombay Public Trusts Act, 1950 unless it receives a certificate under Rule 8 of the Bombay Public Trusts Rules, 1951. However, since the word “and” is used in the disjunctive sense, “public trust” is not required to be registered under the provisions of Societies Registration Act, 1860. The learned single Judge of this Court in para (9) of the judgment in the case of Suresh Ramniwar Mantri and another Vs. Mohd. Iftequaroddin S/o Mohd. Badroddin (1999 (2) Mah LJ 131) has observed thus: “9. … It is, therefore, clear that a society registered under the Societies Registration Act will come within the ambit of the term “Public Trust” only after it has received a certificate of registration under Rule 8 of the Bombay Public Trusts Rules, 1951, on completion of the enquiry under Section 19 and an order is passed under Section 20 of the Tusts Act…”

: 35 : We, therefore, answer the second question referred to us by Justice A.B. Chaudhari in negative.”

7.10. By relying on the same he submits that there is no requirement of Registration of Society and the Trust would continue to operate as one registered under the Act of 1920. 7.11. He also relies upon the decision in Vinodkumar M. Mulavia etc. Vs. Maganlal Mangaldas Gameti and others reported in 2013 AIR SCW 5782, more particularly paras 15 and 19 thereof which are reproduced hereunder for easy reference:- 15. In addition to the above, there are evident lapses in the formation of CNI which have been observed by the High Court in paragraph 17 of its judgment and we also concur with the view of the High Court wherein: Firstly, it is alleged that CNI was formed on November 26, 1970 post Resolution 70/08 dated February 17, 1970, however the same was sought to be registered in 1980 and given registration with effect from 1971. The same is contrary to the requirements as laid down in Section 18 of the BPTA which requires registration of a public trust within three months of a creation as per clause (b) of sub- section (4). The Act is also silent about the registration with retrospective effect. But the dispute is not regarding the interpretation of the procedure of

: 36 : registration under the BPTA, therefore, we refrain from going further into the details of the same. The second lapse which exists is that in 1976, the Church of North India Trust Association (CNITA) was formed under the Indian Companies Act, 1956 and appointed as the trustee of CNI; a trust allegedly existing since 1971 which succeeded FDCB in 1970 which was allegedly dissolved and its annual meetings discontinued since 1971. A suit for declaration of CNI as the successor of FDCB was filed in 1979 (held not to be maintainable in Church of North India (supra)). During the pendency of the 1979 suit, Change Report Nos. 44 of 1981 and 665 of 1981 were filed in 1980. This situation created a scenario where FDCB simply vanished after the 1970 resolutions and who managed its properties till CNITA is an unresolved question, identified by this Court in Church of North India (supra) which stated that “….Furthermore, there is nothing on record to show the mode and manner of the management and control of the trust property.” Subsequently this Court in the abovementioned case discussed the procedure under the BPTA which is reproduced as under: “70…..The BPT Act provides for express exclusion of the jurisdiction of the civil court. In various provisions contained in Chapter IV, a power of inquiry and consequently a power of adjudication as regards the list of movable and immovable trust property, the description and particulars thereof for the purpose of its identification have been conferred. In fact, the trustee of a public trust is enjoined with a statutory duty to make an application for registration wherein all necessary descriptions of movable and immovable property belonging to the Trust including their description and particulars for the purpose of identification are required to be furnished. Section 19 provides for an inquiry for registration with a view to ascertaining inter alia the mode of succession to the office of the trustee as also whether any property is the property

: 37 : of such Trust. It is only when the statutory authority satisfies itself as regard the genuineness of the Trust and the properties held by it, is an entry made in the registers and books, etc. maintained in terms of Section 17 of the Act in consonance with the provisions of Section 21 thereof. Such an entry, it will bear repetition to state, is final and conclusive. Changes can be brought about only in terms of Section 22 thereof.” The above facts clearly show non-compliance with the procedure under BPTA. The argument that as per Article 254 of the Constitution, the Societies Registration Act overrides the BPTA or that the Societies Registration Act and BPTA are in conflict, does not stand either, since both the statutes are not in conflict with each other. On the contrary, they are in consonance with each other regarding the administration and regulation of public and religious trusts. 19. Firstly, we would answer the issue of the jurisdiction of the Charity Commissioner and lower courts. The choices of the community herein are the purported resolutions and deliberations. These resolutions are an attempt to effect a change in management and ownership of the FDCB trust properties in a manner which is against the law of the land. However, it is the case of the appellants that as per Articles 25 and 26, they are free to manage their own affairs and have relied on judgments of this Court in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [AIR 1954 SC 282] and Ratilal Panachand Gandhi & Ors. v. State of Bombay & Ors. [AIR 1954 SC 388].

7.12. By relying upon the above and by referring to Section 2 of the Act of 1920 he submits that it is

: 38 : the District Court which would have the jurisdiction insofar as the Trust is concerned, and therefore, the proceedings for direction can be made under Section 3 only to the said Court. 7.13. Insofar as the petition in WP No.81667/2013, he again by referring to Section 7 of the Act of 1920 would submit that the management has been determined by way of the declaration made by the District Court, it is said management which could take necessary action and the same cannot be faulted with. 7.14. The petitioner has rightly approached the District Court and obtained necessary orders. The revision petition filed by the respondent upon hearing was dismissed and therefore attained finality. 7.15. The challenge made in WP No.81667/2013 to the said order is not sustainable since the order

: 39 : passed is in compliance with Sections 3 and 7 of the Act of 1920. 7.16. Insofar as WP No.101972/2017 is concerned, he submits that in the light of the order passed in Misc.P.No.295/2012, no contrary order could have been passed in Misc.Aplicaiton No.118/2015 and the Additional District and Sessions Judge, Belgavi has not considered this aspect in the proper and required manner. The said Court ought to have applied the reasoning in Misc.No.295/2012 and if the same had been applied Misc. Application No.118/2015 which was one in a series of applications filed ought to have been allowed. 8. Per contra, Sri Sanjay S.Katageri, learned counsel appearing for the petitioner in WP No.81667/2013 would submit that

: 40 : 8.1. All the actions taken by the Trust is improper and not in accordance with law. He submits that all the trustees have been appointed for life, 36 members being trustees for life, none of them could have been removed as sought to be done by the Trust and the same is improper. 8.2. By referring to Chapter 3 of the original Constitution of the Trust constituted under the BPT Act, he submits that any vacancy has to be filled up by a member elected from the General Body, even the said vacancies have not been filled up by the trustees resulting in the Trust not functioning. 8.3. By referring to Clauses 26 and 28 of the Original Constitution, he submits that even the Trust was governed by the provision of the Karnataka Societies Registration Act 1960, in as much as an amendment to the constitution, Rules and Regulation had to be done in consonance and

: 41 : compliance with the Proviso to Sections 9, 10 and 13 of the KSR Act 1960 and any amalgamation and resolutions relating thereto had to be made in accordance with Sections 21, 22 and 23 of the KSR Act 1960. 8.4. Even when the Trust had been registered under the BPT Act, it is the KSR Act that was applicable for the functioning of the Trust, since the Trust was carrying on educational activities and not Religious or Charitable activities. 8.5. Subsequent to the clarification issued by the under Secretary, Revenue Department, there is a qualification prescribed by the Director, Hindu Religious and Charitable Endowments Authority to state that it is only a Religious trust which could be registered under the Act of 1920 and insofar as any other trust registered under the BPT Act, involved in any other activities other than religious activities, the registration ought to

: 42 : be made by the District Registrar in terms of the KSR Act. Therefore, he submits that the registration of the Society is proper and correct, the Act of 1920 is not applicable and it is the KSR Act 1960 which is applicable. 8.6. As regards the contention of Sri. F.V. Patil that trustees have been removed, he submits that the trustees have not been issued with any notice, nor an opportunity granted to them and as such the contention of the Trust in this regard cannot be accepted. 8.7. He however submits that subsequent to the repeal of the BPT Act, A notice had been issued on 3/6/2012 in terms of Annexure D2 to WP No.81667/2013 which has been received by 29 persons in person and as regards balance members who are alive as on that day, notice has been issued by registered post acknowledgement due which was also received

: 43 : by them informing the agenda for the meeting to be held on 23/6/2012 at 2.00 p.m. 8.8. Notice had been served on the trustees who had registered the Trust under the Act of 1920, despite which they did not participate in the meeting. 8.9. In the meeting held on 23/6/2012, the Managing Committee was elected. It was also decided that an application would be made for registration under the KSR Act. A committee was formed for the purpose of the drafting of the bye-laws of the institution and it pursuant thereto that the Registration under the KSR Act took place, which is proper and correct and in accordance with law. 8.10. The requirement of Registration under the KSR Act arose on account of the operation of law due to the repeal of the BPT Act, the registration

: 44 : being done properly being a mandate of law can not be interfered with. 8.11. As regards order passed in Misc.No.295/2012, he submits that at that point of time proceedings in W.P.No.70187/2012 were pending which had been suppressed. If the same had been informed to the District Court, the District Court would have been aware of the objections of the other trustees and would never have granted permission as done, in Misc.No.295/2012. 8.12. He further submits that in order to obtain orders behind the back of the trustees a paper publication was taken out in newspaper Hasiru Kranti, which has no particular circulation and therefore, the entire action resorted to is fraudulent and to usurp the properties of the Trust.

: 45 : 8.13. W.P.No.70187/2012 came to be allowed on 15/1/2013 by virtue of which the registration of the society was kept in abeyance till objections of the petitioners were considered pursuant to that the objections were considered and the District Registrar vide Order dated 22/2/2013 under Annexure-M to WP.No.81667/2013 confirmed the Registration of the Society. 8.14. In view of the same, he submits that the objections having been considered and rejected the Order of registration of Society has attained finality, whereas the Order passed in Misc.No.295/2012, was behind the back of the members and therefore, the same cannot be relied upon. 8.15. Insofar as WP No.101436/2018 is concerned, he submits that respondent No.7 has retired and as such, the said petition has become infructuous

: 46 : and would not be required to be considered in as much as respondent No.7 retired on 31/7/2021. 8.16. In the above background, he submits that WP No.81667/2013 is required to be allowed and other writ petitions are liable to be dismissed. 9. Sri. Ravi S. Balikai, learned counsel appearing for respondent No.7 in WP No.101436/2018 submits that respondent No.7 has been appointed by the trustees and he has discharged his duties, therefore he is entitled for the salaries to be paid to him until his retirement which has not been paid by the society and the society has received grant in aid. 10. In rejoinder Sri. F.V.Patil, learned counsel submitted that it is the 1920 Act and not KSR Act which is applicable and as such, he submits that WP Nos.77680/2013, 101972/2017 have to be allowed. 11. Heard Sri. F.V.Patil, Sri. Sanjay S.Katageri, Sri. Ravi S. Balekai, learned counsels, perused papers.

: 47 : 12. The points that arise for determination are: (1) What is the scope and effect of Section 3 and 7 of the Hindu Religious and Charitable and Religious Trust Act 1920? (2) To what institutions was the Bombay Public Trust 1950 Applicable? (3) What is the effect of bringing into force the Karnataka Hindu Religious Institutions and Charitable Endowment Act, 1997? (4) What is the effect of the Repeal of the BPT Act? (5) Whether on the repeal of the Bombay Public Trust Act, the Trust registered under the said Act, would have to be registered under the Hindu Religious and Charitable and Religious Trust Act 1920 or under the Karnataka Society Registration Act 1960? (6) In the present case, whether the registration of the society under the Karnataka Society Registration Act 1960 is proper or not? (7) Whether the Order passed in Civil Misc.No.295/2012 confirmed in the review petition is proper and correct? (8) Whether the Order passed in Misc.P.No.118/2015 is proper and correct?

: 48 : (9) Whether respondent No.7 in WP No.101436/2018 could be entitled to his salary, if so from whom? (10) In the above circumstances, whether there is any enquiry which is required to be conducted in terms of Section 25 of the Karnataka Societies Registration Act, 1960? (11) What order

14.1. The object and reason of the Act of 1920 is as under: Statement of objects and reasons "The Religious Endowments Act, 1868 (XX of 1863), was the result of the decision of the Government of divest its officers of all direct superintendence and control of religious and charitable endowments in India, transferring their functions to manager or managing committees and merely making provision for intervention by the Civil Courts on application made by any person interested in a particular institution. This policy, however, did not long remain unchallenged, and since 1866 there have been constant complaints, especially in the Madras Presidency, as to the inefficacy of the Act to prevent the squandering or misappropriation of the funds of such endowments, and suggestions for its amendments have from time to time been made to the Government of India. Mr. Ananda Charlu in 1897, Mr. Srinivasa Rao in 1903 and Dr.(now

: 49 : Sir) Ras Behari Ghosh in 1908, for example, promoted amending Bills, but none of them became law. More recently in 1911, a private Bill was introduced in Bombay Legislative Council by the Hon'ble Sir Ibrahim Rahimtoola, to provide for the registration of all charitable trusts, exceeding a certain value and for the annual audit of the accounts for such trusts by auditors approved by Government. Endowments of a purely religious nature were not included but the contents of he Bill made it clear that the ultimate object was to press for legislation for religious as well as secular trusts. About the same time a private Bill was promoted by two non-official members of the Madras Legislative Council to provide for the regular publication of the accounts of all religious endowments above a certain value and for their audit by an officer to be appointed by the District Judge. These proposals led the Government of India to reconsider the policy in force since 1863. In March 1914, the whole subject was discussed at a mixed conference of official and non-official gentlemen representing the Hindu, Muhammadan, Sikh and Buddhist communities. The present Bill, which is the outcome of the deliberations of that conference, has as its objects the simplification and cheapening of the legal processes by which persons interested can obtain information regarding the working of both religious and charitable trusts, and the exercise of a more efficient control over the action of trustees. The Bill provides that any person interested in a trust may apply by petition to the District Judge for an order directing the trustee to furnish him with information 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 also directing that the accounts of the trust shall be examined and audited. Failure to comply with such an order of the Court would be deemed a breach of trust. In order, however, that such applications should not lead to protracted and contentious litigation, the Court is debarred from trying any question of title between the petitioner and any person claiming title to the trust, or any question as to the existence or extent of any trust. Under the Bill, it will be left to those interested to move in the matter; the initiative will not rest with Government, nor will anything be done where no one is sufficiently interested to take action. Where the Court is moved the

: 50 : proceedings will be simple and expeditious; they will be held in the presence of all parties, and the order passed will be a judicial order of the Court. Further, in order to meet the objection that recourse to Section 14 of the Act of 1863 or Section 92 of the Code of Civil Procedure 1908, involves expensive litigation the Court is authorized, on the application of the plaintiff and after the defendant is heard, to direct the defendant either to furnish security for the expenditure incurred or likely to be incurred in bringing and maintaining the suit or to deposit in Court an amount sufficient to meet such expenditure.

It will be observed that the draft Bill only embodies general principles. It is intended that such details as the institution of some public record of the facts regarding these trusts, the publication of audited accounts, and the relaxation of some of the conditions governing committees constituted under the Act of 1863, e.g., the tenure of the membership of such committee should be left to Provincial Legislatures".

14.2. Section 3 of the Act of 1920 reads as under: 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:—

(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

(2) directing that the accounts of the trust shall be examined and audited: Provided that no person shall

: 51 : apply for any such direction in respect of accounts relating to a period more than three years prior to the date of the petition.

14.3. Section 5 of the Act of 1920 reads as under: 5. Procedure on petition.—

(1) If the Court on receipt of a petition under section 3, after taking such evidence and making such inquiry, if any, as it may consider necessary, is of opinion that the trust to which the petition relates is a trust to which this Act applies, and that the petitioner has an interest therein, it shall fix a date for the hearing of the petition, and shall cause a copy thereof, together with notice of the date so fixed, to be served on the trustee and upon any other person to whom in its opinion notice of the petition should be given.

(2) On the date fixed for the hearing of the petition, or on any subsequent date to which the hearing may be adjourned, the Court shall proceed to hear the petitioner and the trustee, if he appears, and any other person who has appeared in consequence of the notice, or who it considers ought to be heard, and shall make such further inquiries, if any, as it thinks fit. The trustee may and, if so required by the Court, shall at the time of the first hearing or within such time as the Court may permit present a written statement of his case. If he does present a written statement, the statement shall be signed and verified in the manner prescribed by the Code of Civil Procedure 1908 (5 of 1908), for signing and verifying pleadings.

(3) If any person appears at the hearing of the petition and either denies the existence of the trust or denies that it is a trust to which this Act applies, and undertakes to institute within three months a suit for a declaration to that effect and for any other appropriate relief, the Court shall order a stay of the proceedings and, if such suit is so instituted, shall continue the stay until the suit is finally decided.

: 52 : (4) If no such undertaking is given, or if after the expiry of the three months no such suit has been instituted, the Court shall itself decide the question.

(5) On completion of the inquiry provided for in sub- section (2), the Court shall either dismiss the petition or pass thereon such other order as it thinks fit: Provided that, where a suit has been instituted in accordance with the provisions of sub-section (3), no order shall be passed by the Court which conflicts with the final decision therein.

(6) Save as provided in this section, the Court shall not try or determine any question of title between the petitioner and any person claiming title adversely to the trust

14.4. Section 7 of the Act of 1920 reads as under: 7. Powers of trustee to apply for directions.—

(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.

(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.

: 53 : (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, shall afford a reasonable opportunity of being heard to all persons appearing in connection with the petition.

(4) A trustee stating in good faith the facts of any matter relating to the trust in a petition under sub- section (1), and acting upon the opinion, advice or direction of the Court given thereon, shall be 4 deemed, as far as his own responsibility is concerned, to have discharged his duty as such trustee in the matter in respect of which the petition was made.

14.5. Section 9 of the Act reads as under: 9. Savings.— No petition under the foregoing provisions of this Act in relation to any trust shall be entertained in any of the following circumstances, namely:—

(a) if a suit instituted in accordance with the provisions of section 92 of the Code of Civil Procedure 1908 (5 of 1908), is pending in respect of the trust in question;

(b) if the trust property is vested in the Treasurer of Charitable Endowments, the Administrator General, the Official Trustee, or any Society registered under the Societies Registration Act, 1860 (21 of 1860); or

(c) if a scheme for the administration of the trust property has been settled or approved by any Court of competent jurisdiction, or by any other authority acting under the provisions of any enactment.

14.6. As per the statement of objects and reasons, it is clear that the Act of 1920 is to provide for more effectual control over the administration of the

: 54 : charitable and religious trust and in order to provide facilities for obtaining of information regarding trust created for the public purpose of a charitable or religious nature and to enable the trustees of such Trust to obtain directions from the Court on certain matters. Thus, the Trust created for public purposes is required to be of charitable or religious nature. 14.7. In terms of Section 3 extracted hereinabove, any person having an interest in any express or constructive trust, created or existing for the public purposes or a charitable or religious nature may petition to the Court within the local limits in which the subject matter is situate, seeking for the directions stated therein namely, direction to the trustees to furnish the petitioner particulars as to the nature and objects of the Trust, value, condition, management, subject matter and income of the Trust, as also for a

: 55 : direction for the accounts of the Trust to be examined and audited for a period of three years. Section 5 provides a procedure on how such a petition is to be filed. 14.8. Section 7 provides for the powers of the trustee to apply for a direction. A trustee may apply to seek for opinion, advice or direction of the Court on any question affecting the management or administration of the trust property, on which, the Court is required to give opinion or advice or direction. The Court could, however, decline to give such opinion or advice or direction, if it considers that the same is not proper for summary disposal. When a trustee acts on such opinion, advice or direction is deemed to have discharged its duty as such trustee. 14.9. Thus, from the examination of the above provisions, it is clear that the Act of 1920 deals with better administration of the Charitable and

: 56 : Religious Trusts and in terms of Section 7, a trustee could apply seeking for a direction, which could be refused, if the court were of the opinion that, such opinion cannot be given in a summary manner. An opinion in my considered opinion could not be given in a summary manner or in summary disposal if there are any disputed questions of fact or law involved in the matter. 14.10. A perusal of Act of 1920 and the provisions which have been extracted hereinabove would categorically and unimpeachably establish the trust created for public purposes of charitable or a religious nature would come under the provision of Act of 1920. However, the said Act has a limited application inasmuch as under Section 7, a trustee could approach the said Court having jurisdiction over the trust seeking for opinion, advice or direction which should be rendered by the said Court if it could be given in

: 57 : a summary manner with summary disposal of the proceedings. 14.11. Thus, a Court exercising powers under the Act of 1920 cannot issue opinion, advice or direction if the matter cannot be summarily disposed of. Therefore, the two issues which would debar the application 1920 i.e., if the Trust does not carry out charitable or religious activities, or if the opinion, advice or direction cannot be given by a summary disposal, the Court is not bound to give such opinion. 15. Answer to Point No.2: To what institutions was the Bombay Public Trust 1950 Applicable?

15.1. Section 1 of the BPT Act (for short 'BPT Act ') reads as under:

(2) It shall extend to the whole of the State of Maharashtra.

(3) This Act shall come into force at once; but the provisions thereof shall apply to a public trust or

: 58 : any class of public trusts on the date specified in the notification under subsection (4). (4) The State Government may, by notification in the Official Gazette, specify the date on which the provisions of this Act shall apply to any public trust or, any class of public trusts; and different dates may be specified for such trusts in different areas: Provided that the State Government may also by a like notification direct that from the date specified therein any public trust or class of public trusts shall be exempt from all or any of the provisions of this Act, subject to such conditions as may be specified in the notification: Provided further that before a notification of such application or exemption is published, a draft thereof shall be published, in the Official Gazette and in such other manner as may be prescribed for the information of persons likely to be affected thereby together with a notice specifying the date on or before which any objections or suggestions shall be received and the date on or after which the draft shall be taken into consideration.

15.2. Rule 13 of Bombay Public Trust Rules, 1961 (for short, BPT Rules) reads as under:

Rules 13: Changes in the Register of Public Trusts.

(1) Any change or proposed change in any of the particulars recorded in the Register of Public Trusts shall, under sub-section (1) of section 22, be reported 16 to the Deputy Charity Commissioner or Assistant Charity Commissioner by the trustee of the trust concerned in the form of Schedule III hereto.

(1A) The memorandum referred to in subsection (1A) of Section 22 shall be in the form of Schedule IIIA hereto, and shall be verified in the manner provided in sub-rule (4) of rule 6.

: 59 : (2) The Deputy or Assistant Charity Commissioner on receipt of the report under sub-rule (1) shall cause particulars in respect thereof to be entered in a register to be kept for the purpose of in the form of Schedule IV hereto. In such register there shall b entered also particulars in respect of changes effected in the Register of Public Trusts otherwise than on report by the trustee.

(3) Amendments in the entries in the Register of Public Trusts shall be made by scoring out in red ink the original entry or entries, and the addition or alteration initialed by the Deputy or Assistant Charity Commissioner.

(4) The Deputy or Assistant Charity Commissioner may of his motion correct clerical or accidental mistakes in any of the entries in the Register of Public Trusts.

15.3. Section 85 of BPT Act reads as under: Section 85 - Repeals :

(1) The Religious Endowments Act, 1862, is hereby repealed.

(2) On the date of the application of the provisions of this Act to any public trust or class of trusts under subsection (4) of section 1 hereinafter in this section referred to an the said date the provisions of the Act specified in Schedule A which apply to such trust or class of trusts shall cease to apply to such trust or class of trusts.

(3) Save as otherwise provided in this section such repeal or cessation shall not in any way affect –

(a) any right, title, interest, obligation or liability already acquired, accrued or incurred before the said date. (b) any legal proceedings or remedy in respect of such right, title, interest, obligation or liability, or (c) anything duly done or suffered before the said date.

: 60 : (4) Notwithstanding anything contained in subsection (3) all proceedings pending before any authority under the Mussalman Wakf Act, 1923 as amended by the Mussalman Wakf Bombay Amendment Act, 1935, the Bombay Public Trusts Registration Act, 1935, or the Parsi Public Trusts Registration Act, 1936, immediately before the said date shall be transferred to the Charity Commissioner and any such proceedings shall be continued and disposed of by the Charity Commissioner or the Deputy or Assistant Charity Commissioner as 103 the Charity Commissioner may direct. In disposing of such proceedings the Charity Commissioner, the Deputy Charity Commissioner or the Assistant Charity Commissioner, as the case may be, shall have and exercise the same powers which were vested in and exercised by the Court under the Mussalman Wakf Act, 1923 as amended by the Mussalman Wakf (Bombay Amendment) Act, 1935, and by the Registrars under the Bombay Public Trusts Registration Act, 1935, and the Parsi Public Trusts Registration Act, 1936, and shall pass such orders as may be just or proper.

(5) All records maintained by the authority or Court under any of the Acts referred to in subsection (4) shall be transferred to the Charity Commissioner or to the Deputy or Assistant Charity Commissioner as the Charity Commissioner may direct. 15.4. Section 86 of the BPT Act reads as under:

Section 86- Further repeals and savings consequent on commencement of Bom. XXIX of 1950 in other areas of State :

(1) On the commencement of this Act in that area of the State to which it is extended by the Bombay Public Trusts (Unification and Amendment) Act, 1959 –

(i) the Religious Endowments Act, 1863, as in force in the Saurashtra and Kutch areas of the State. (ii) the Madhya Pradesh Dharmadays Funds Act, 1951, as in force in the Vidharbha Region of the State, and

: 61 : (iii) any law relating to public trusts to which Chapter VII- A applies, to the extent to which it corresponds to the provisions of this Act, shall stand repealed.

(2) On the date of application of the provisions of this act to any public trusts or class of public trust under sub- section (4) of section hereinafter in this section referred to as the said date, the provisions of the Acts specified in Schedule AA which apply to such trust or class of trust shall cease to apply thereto.

(3) Save as otherwise provided in this section, such repeal or cessation shall not in any way affect –

(a) anything duly done or suffered under the laws hereby repealed or ceasing to apply before the said date; (b) any right, title, interest, obligation or liability already acquired, accrued or incurred before the said date under the laws hereby repealed or ceasing to apply; (c) any legal proceedings or remedy in respect of such right title, interest, obligation or liability;

Provided that if on the said date, any legal proceeding in respect of any public trust is pending before any court under any enactment specified in Schedule AA to which the State Government, Commissioner, Registrar or any officer of the State Government is a party, the Charity Commissioner, shall be deemed to be substituted in those proceedings for the State Government, Commissioner, Registrar or as the case may be, the Officer, and such proceedings shall be disposed of by such court;

Provided further that every proceeding pending before any criminal court under the Madhya Pradesh Dharmadaya Funds Act, 1951 shall abate on the repeal of that Act under subsection (1).

15.5. Scheduled A of the BPT Act reads as under: SCHEDULE A (See Sections 28, 61 and 85)

: 62 : 2. The Mussalman Wakf Act, 1923, as amended by Bombay Act XVIII of 1935. 3. The Bombay Public Trusts Registration Act, 1935. 4. The Parsee Public Trusts Registration Act, 1936. 5. The Baroda Public Institutions Act (Baroda Act No. VI of Samvat 1961). 6. The Religious Endowments Act, 1863, as applied to Jamkhandi State in 1890. 7. The Deosthan Rules, 1912, of the Jamkhandi State as amended by Jamkhandi Act No. 1 of 1948.

15.6. The Bombay Public Trust Act though a State enactment of the State of Maharastra extending to the whole of the State of Maharastra, was made applicable to the Bombay-Karnataka region. 15.7. A public Trust is defined under Section 2(13) of the BPT Act as under: 2(13) ‘Public Trust” means an express or constructive trust for either a public religious or charitable purpose or both and includes a temple, a math, a wakf, church, synagogue, agiary or other place of public religious worship, a dharmada or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the Societies Registration Act, 1860.

15.8. The BPT Act therefore recognizes a Trust either express or constructive as also a society

: 63 : registered under the Societies Registration Act, 1860. 15.9. Section 2(7-A) of the BPT Act defines instrument of Trust as under: “Instrument of trust” means the instrument by which the trust is created by the author of the trust and includes any scheme framed by a competent authority or any memorandum of association and rules and regulations of a society registered under the Societies Registration Act, 1860, in its application to the State of Maharashtra.

15.10. Thus, a Trust could be either created by the author of the Trust or be a scheme framed by a competent authority or on memorandum of association and rules and regulation of the society registered under the Societies Registration Act, 1860. 15.11. A Trust can either be implied or express, registration of a Trust is not compulsory. 15.12. In terms of Section 6 of the Indian Trusts Act, 1882 a Trust is created with the author of the

: 64 : Trust indicating with reasonable certainty by any words or acts of (a) an intention on his part to create a Trust, (b) the purpose of the Trust, (c) the beneficiary, and (d) the Trust-property. 15.13. In terms of Section 7 of the Indian Trusts Act, 1882, a Trust could be created by every person competent to contract. 15.14. Section 3 of the KSR Act 1960 reads as under: 3. Societies to which the Act applies.- The following societies may be registered under this Act,— Societies established for,—

a. the promotion of charity; b. the promotion of education, science, literature, or the fine arts; c. the promotion of sports 1 [x x x]1 ; 1. Omitted by Act 7 of 1978 w.e.f. 29.9.1977. d. the instruction and the diffusion of knowledge relating to commerce or industry or of any other useful knowledge; e. the diffusion of political education; f. the foundation or maintenance of libraries or reading rooms for general use among the members or open to the public, or of public museums and galleries of painting and other works of art; (ff) the promotion of conservation and proper use of natural resources and scarce Infrastructural facilities like land, power, water, forest and such other resources and infrastructural facilities, as may be notified by the State Government from time to time.]1 1. Inserted by Act 9 of 1999 w.e.f. 26.4.1999. g. the collection of natural history, mechanical and philosophical inventions, instruments or designs; and

: 65 : which intend to apply their profits, if any, or other income in promoting their objects and prohibit the payment of any dividend or distribution of any income or profits among their members.

15.15. Thus, it is clear that it is only for the above purposes that a Society could be registered. The requirements of the registration are mentioned under Section 6. The mode of forming of a society is mentioned under Section 5. 15.16. A perusal of Section 3 indicates that a Society carrying on the object of education could be registered under the KSR Act. A society for charitable or religious activities cannot be registered under the KSR Act. A Society for promotion of charity could however be registered. 15.17. Chapter IV of the BPT Act provided for registration of a public Trust. In terms of Section 18, a trustee of the public Trust has to apply under the BPT Act for registration of the said

: 66 : public Trust. Upon enquiry being conducted in terms of Section 19 of the BPT Act, an entry would be made in the register of Trust in terms of Section 21 of the BPT Act. In terms of Section 52 of the BPT Act, Sections 92 and 93 of the Code of Civil Procedure were made inapplicable to a public Trust registered under the BPT Act. 15.18. Section 18 of the BPT Act, 1950 reads as under: 18. Registration of public trusts :

(1) It shall be the duty of the trustee of a public trust to which this Act has been applied to make an application for the registration of the public trust.

(2) Such application shall be made to the Deputy or Assistant Charity Commissioner of the region or sub-region within the limits of which the trustee has an office for the administration of the trust or the trust property or substantial portion of the trust property is situated, as the case may be.

(3) Such application shall be in writing, shall be in such form and accompanied by such fee as may be prescribed.

(4) Such application shall-

(a) in the case of a public trust created before this Act was applied to it, be made, within three months’ from the date of the application of this Act, and

(b) in the case of a public trust created after this

: 67 : Act comes into force, within three months’ of its creation.

(5) Such application shall inter alia contain the following particulars—

(a-i) the designation by which the public trust is or shall be known (hereinafter referred to as the name of the public trust)

(i) the names and addresses of the trustees and the manager, (ii) the mode of succession to the office of the trustee,

(iii) the list of the movable and immovable trust property and such description and particulars as may be sufficient for the identification thereof,

(iv) the approximate value of the movable and immovable property,

(v) the gross average annual income of the trust property estimated on the income of three years immediately preceding the date on which the application is made or of the period which has elapsed since the creation of the trust, whichever period is shorter,

(vi) the amount of the average annual expenditure in connection with such public trust estimated or the expenditure incurred within the period to which the particulars under clause (v) relate.

(vii) the address to which any communication to the trustee or manager in connection with the public trust may be sent,

(viii) such other particulars which may be prescribed.

Provided that, the rules may provide that in the case of any or all public trusts it shall not be necessary to give the particulars of the trust

: 68 : property of such value and such kind as may be specified therein.

(6) Every application made under subsection (1) shall be signed and verified in the prescribed manner by the trustee or his agent specially authorized by him in this behalf. It shall be accompanied by a copy of an instrument of trust, if such instrument had been executed and is in existence.

(6A) Where on receipt of such application, it is noticed that the application is incomplete in any particulars, or does not disclose full particulars of the public trust, the Deputy or Assistant Charity Commissioner may return the application to the trustee, and direct the trustee to complete the application in all particulars or disclose therein the full particulars of the trust, and resubmit it within the period specified in such direction; and it shall be the duty of the trustee to comply with the direction.

(7) It shall also be the duty of the trustee of the public trust to send a memorandum in the prescribed form containing the particulars, including the name and description of the public trust, relating to the immovable property of such public trust, to the Sub-Registrar of the sub-district appointed under the Indian Registration Act, 1908, in which such immovable property is situate for the purpose of filing in Book No. 1 under section 89 of that Act.

Such memorandum shall be sent within three months from the date of creation of the public trust and shall be signed and verified in the prescribed manner by the trustee or his agents specially authorized by him in this behalf.

15.19. It is therefore clear that a trustee has to make an application for registration of a public Trust

: 69 : under the BPT Act providing information as detailed above. Upon receipt of an application, the Deputy or Assistant Charity Commissioner, as the case may be shall make an inquiry in terms of Section 19 of the BPT Act and on that basis cause an entry in the register maintained under the Act in terms of Section 21 of the BPT Act. 15.20. Thus, on the BPT Act having come into force any public Trust or society would have to be registered under the BPT Act by following the due procedure. 15.21. In terms of Section 52 of the BPT Act as above stated, Sections 92 and 93 of the Code of Civil Procedure is not applicable to the public Trust. The said Section 52 reads as under: 52. Non-application of section 92 and 93 of the Civil Procedure Code to public trusts.-

(1) Notwithstanding anything contained in the Code of Civil Procedure, 1908, the provisions of sections

: 70 : 92 and 93 of the said Code shall not apply to the public trusts.

(2) If on the date of the application of the Act to any public trust any legal proceedings in respect of such trust are pending before any Civil Court of competent jurisdiction to which the Advocate General or the Collector exercising the powers of the Advocate General is a party, the Charity Commissioner shall be deemed to be substituted in those proceedings for the Advocate General or the Collector, as the case may be, and such proceedings shall be disposed of by such Court.

(3) Any reference to the Advocate General made in any instrument, scheme, order or decree of any Civil Court of competent jurisdiction made or passed, whether before or after the said date, shall be construed as reference to the Charity Commissioner.

15.22. The reason why Section 52 is not applicable is that in terms of Section 50 of BPT Act whenever any issue relating to public Trust or Trusts arises the Charity Commissioner on making such an inquiry as he thinks fit may institute a suit before a competent Court. Section 50 reads as under: 50. Suit by or against or relating to public trusts or trustees or others. –In any case:-

(i) where is alleged that there is a breach of a public trust, negligence, misapplication or misconduct on the part of a trustee or trustees,

: 71 : (ii) where a direction or decree is required to recover the possession of or to follow a property belonging or alleged to be belonging to a public trust or the proceeds thereof or for an account of such property or proceeds from a trustee, ex- trustee, alienee, trespasser or any other person including a person holding adversely to the public trust but not a tenant or licensee, or tenant,

(iii) Where the direction of the Court is deemed necessary for the administration of any public trust, or

(iv) for any declaration or injunction in favour of or against a public trust or trustee or trustees or beneficiary thereof, the Charity Commissioner after making such enquiry as he thinks necessary, or 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 the suit is under sub-clause (iv) having obtained the consent in writing of the Charity Commissioner as provided in section 51 may institute a suit whether contentious or not in the Court within the local limits of whose jurisdiction the whole or part of the subject matter of the trust is situate, to obtain a decree for any of the following relief's:-

(a) an order for the recovery of the possession of such property or proceeds thereof;

(b) the removal of any trustee or manager;

(c) the appointment of a new trustee or manager;

(d) vesting any property in a trustee;

(e) a direction for taking accounts and making certain enquiries;

(f) an order directing the trustees or others to pay to the trust the loss caused to the same by their breach of trust, negligence, misapplication, misconduct or willful default;

: 72 :

(g) a declaration as to what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

[(h) xxxxx]

(i) a direction authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged or in any manner alienated on such terms and conditions as the court may deem necessary;

(j) the settlement of scheme, or variation or alteration in a scheme already settled,

(k) an order for amalgamation of two or more trusts by framing a common scheme for the same;

(l) an order for winding up of any trust and applying the funds for other charitable purposes;

(m) an order for handing over of one trust to the trustees of some other trust and deregistering such trust;

(n) an order exonerating the trustees from technical breaches, etc;

(o) an order varying, altering, amending or superseding any instrument of trust;

(p) declaring or denying any right in favour of or against, a public trust or trustee or trustees or beneficiary thereof an issuing injunctions in appropriate cases; or

(q) granting any other relief as the nature of the case may require which would be a condition precedent to or consequential to any of the aforesaid relief's or is necessary in the interest of the trust:

: 73 :

Provided that no suit claiming any of the reliefs specified in this section shall be instituted in respect of any public trust, except in conformity with the provisions thereof;

Provided further that, the Charity Commissioner may instead of instituting a suit make an application to the Court for a variation or alteration in a scheme already settled:

Provided also that, the provisions of this section and other consequential provisions shall apply to all public trusts, whether registered or not or exempted from the provisions of this Act under subsection (4) of section 1.

15.23. In terms of Section 85 of the Act, Religious Endowments Act, 1862 was repealed and as regards any trust to which the enactment referred to Schedule-A of the Act were applicable, the BPT Act was made applicable. 15.24. The BPT Act was applicable to various institutions including a public trust as defined under Section 2 (13) thereof as also to Religious and Charitable trusts and/or Societies formed either for Religious or charitable purposes or for both registered under Societies Registration Act.

: 74 : 15.25. On an analysis of the entire provisions of the BPT Act I’am of the considered opinion that the BPT Act applies only to a pre-existing Trust or Society which could register itself under the BPT Act. 15.26. In terms of Section 18 of the BPT Act, a Trust or a public Trust to which the Act has been applied is required to make an application for registration of the public Trust under the BPT Act within three months of the Act being applicable. In the event of the public Trust having been created before the Act was made applicable to it and in the event of a public Trust created after the Act came into force within three months of its creation. Thus, the creation of a Trust or a Society is not dependent on the BPT Act but is an independent action and in the event of the said Trust or Society wanting to avail the benefits under the BPT Act, such Trust or Society

: 75 : could register itself under the BPT Act. To put it otherwise, there has to be a pre-existing Trust/Society which can register under the BPT Act. The BPT Act by itself does not provide for registration of a Trust or Society. 16. Answer to Point No.3: What is the effect of bringing into force the Karnataka Hindu Religious Institutions and Charitable Endowment Act, 1997?

16.1. The Karnataka Hindu Religious Institutions and Charitable Endowment Act, 1997 enacted by the State of Karnataka came into force on an publication of a Notification on 30.4.2003 with effect from 1.5.2003. 16.2. Statement of objects and reasons of the said Act are reproduced hereunder for easy reference: STATEMENT OF OBJECTS AND REASONS

There has been before the State Government, a long standing public demand to bring about a uniform law to provide for the regulation of all Charitable Endownments and Hindu Religious Institutions in the State. Which are now regulated under different enactments, having local application in different parts of the State, namely:-

: 76 : 1. The Karnataka Religious and Charitable Institutions Act, 1927; 2. The Madras Hindu Religious and Charitable Endowment Act, 1951; 3. The Bombay Public Trust Act, 1950; 4. The Hyderabad Endowment Act, Regulations, and 5. The Coorg Temple Funds Management Act, 1956.

It is therefore proposed to enact a new law to replace the several local Acts to bring about uniformity in the matter of regulating, by law, the various Charitable Endowment and Hindu Religious Institutions, especially.

(1) To make the law applicable generally to all Charitable Endowments and Hindu Religious Institutions, which on the date of commencement of the Act were managed by or receiving annuity, taldik or other grants from the State Government, and to other Hindu Religious Institutions which though not under the management of the State Government, require by reason of mismanagement, to be regulated by the State Government after notifying them as Declared Institutions.

(2) to provide that the Charitable Institution and Trusts registered under the KSR Act 1960 or under the Indian Trust Act, 1882 and which are not under the management of the Government shall continue to be autonomous;

(3) to create Common Pool Fund out of surplus funds of the Notified Religious Institutions, donations etc., for the maintenance and improvement of needy institutions, managed by an independent committee;

(4) to provide for the founder trustees or their lineal descendants to be nominated to the managing committee as Chairman, in keeping with the decision of the Supreme Court of India.

(5) to regulate improper alienation or disposal of property belonging to a notified or declared institution by nullifying unlawful transfers and providing for expeditions eviction of unauthorised occupants of property belonging to such institutions; and

: 77 : (6) to make certain other regulations necessary in the local conditions.

Hence the Bill.

16.3. A perusal of the same indicates that the said Act was brought into force to replace the several local Acts to bring about a uniformity in the matter of various Charitable, Endowment and Hindu Religious Institutions. One of the Acts which was applicable in local areas is BPT Act of 1950. 16.4. The Act of 1997 applies to Charitable Institutions established for charitable purposes more particularly to Hindu Religious Institutions. 16.5. 'Charitable Institution' is defined under Section 2(6) of the Act of 1997, which reads as under:

Charitable Institution means any establishment, undertaking organisation or association formed for a charitable purpose and includes specific endowment and Dharmadayam.

a. an institution managed by a hereditary trustee having proprietary right over the institution and the income thereof; and

: 78 : b. an institution which is an inseparable intergral part of a composite institution consisting of institutions other than charitable institutions also.

16.6. 'Charitable purpose' is defined under Section 2(7) of the Act of 1997, which reads as under

'Charitable purpose' include,-

a. relief of poverty or distress including maintenance of rest houses, choultries, houses for feeding the poor and the like;

b. the advancement or maintenance of any other object of utility, benefit or welfare to, or used, as of right by, the Hindu community or a section thereof, not being an object of an exclusively religious nature.

But does not include a purpose which relates to sports or exclusively to religious teaching or worship;

16.7. 'Religious Institutions is defined under Section 2(17) of the Act of 1997, which reads as under: 'Hindu Religious Institution' means a temple or specific endowment and includes a Brindavana, Samadhi, Gaddige, Mandira, Shrine or place of any other institution established or maintained for Hindu Religious purpose ;

16.8. The Act of 1997 would apply to a notified Institution under Section 23 of the Act and in terms of 23(e) thereof would apply to all

: 79 : Religious Institutions registered under the Bombay Public Trust Act, 1950. 16.9. In terms of Section 78 of the said Act of 1997 the BPT Act would stand repealed. 16.10. One of the Effects of bringing into force the Act of 1997 being the repeal of the BPT Act 1950, there was a vacuum which got created as regards an organization registered under BPT Act 1950, in that the registration ceased to be applicable. 17. Answer to Point No. 4: What is the effect of the Repeal of the BPT Act? 17.1. On the repeal of the BPT Act all benefits that were available to an institution registered under the BPT Act were taken away. 17.2. Since the benefits of registration under the BPT became unavailable such an

: 80 : organization/institution would have to register itself under the relevant laws applicable. 17.3. If a Trust had been registered under the BPT Act, with the repeal, the provisions of Section 92 and 93 of the Civil procedure code would become applicable to such Trust on the repeal of the BPT Act. 18. Answer to Point No.5: Whether on the repeal of the Bombay Public Trust Act, the Trust registered under the said Act, would have to be registered under the Hindu Religious and Charitable and Religious Trust Act 1920 or under the Karnataka Society Registration Act 1960?

18.1. The contentions urged by both the counsel are opposed to each other inasmuch as Sri. F.V. Patil, contending that the Charitable and Religious Trust Act 1920 would be applicable and Sri. Sanjay Kattegeri, contending that it is the KSR Act 1960 which should be applicable.

: 81 : 18.2. The Act of 1920 stood suspended on account of the BPT Act 1950 since the same was covered under Schedule A to the BPT Act. Upon the repeal of the BPT Act, the Act of 1920 came back into operation. 18.3. The under Secretary, Endowment Department has issued a clarification that any Trust registered under BPT Act for the purpose of charitable and religious activities would have to be registered under Act of 1920 and the Block Education Officer has issued a clarification that a trust registered for education activities would have to register itself before the District Registrar i.e., under the Societies Registration Act. 18.4. A perusal of the Act of 1920 does not indicate any provision for registration but it is only an applicability of an Act to a trust created for the purposes of charitable or a religious nature. The

: 82 : Act of 1920 as such does not provide for registration. 18.5. The Act of 1920 only provides a right to a third party to approach the Court of competent jurisdiction having territorial jurisdiction under Section 3 for furnishing of information and Section 7 provides for a trustee to approach the said Court for direction as aforesaid. Apart therefrom, there is no provision made for registration. 18.6. In view thereof, the applicability of the Act of 1920 is restricted to the above events and does not extend to registration of a trust which was registered under the BPT Act subsequent to the repeal thereof. 18.7. Further, if a Trust is not carrying out any charitable or a religious activity but it is carrying out educational activity, the Act of 1920 would

: 83 : not be applicable since the said aims and objects would not come within the mandate of the Act of 1920. 18.8. The clarification issued by the Block Education Officer that a Trust which was carrying on educational activities would have to register itself under the Act of 1960 is as such not binding on this court, but would have to be tested on an analysis of the relevant provisions on a case to case basis. 18.9. As observed above the BPT act applies to a pre- existing Trust and or a Society, on enquiry both the counsel submit that the charity commissioner has accepted the registration applications and registered institutions which were not pre-existing but came into being on the registration under the BPT Act.

: 84 : 18.10. In such circumstances the constituent documents of registration would have to be considered to determine under which law the said organization would have to register on the repeal of the BPT Act. 18.11. If the constitution is as a Society the KSR Act would apply, if the constitution is that like a Trust, the Indian Trust Act would apply. 18.12. As observed above the Act of 1920 does not provide for registration, though a Trust need not be registered if it were to be registered than the same would have to be done in pursuance of and under the provisions of the Indian Trusts Act. 19. Answer to Point No.6: In the present case, whether the registration of the Trust under the Karnataka Society Registration Act 1960 is proper or not?

19.1. It is in light of the above discussion that this aspect would have to be considered.

: 85 : 19.2. A perusal of the Annexure-R1 produced along with the objections filed by respondent No.5 to WP No.101436/2018 being the original constitution does not indicate as to whether the same is a Trust or a Society. However, the office bearers are referred to as Trustees, the document speaks of their powers, etc. 19.3. There is also a reference in the said original constitution on the applicability of the KSR Act. More particularly, at Rule 26, 27 and 28 thereof which are reproduced hereunder for easy reference: “26. Amendments to the Constitution of the Trust and Rules, resolutions will be made in accordance with Sections 9, 10 and 13 of KSR Act, 1960.

: 86 : 19.4. Rule 31, 32, 33, 35 and 36 read as under: “31. Investment Clause (1)

The funds of the Trust/Institution/Society shall be invested in the modes specified under the provisions of Section 13(1) (d) read with Section 11(5) of the Income Tax Act, 1961. 32. Account Clause

There shall be maintained all accounts of the Trust/Institution/Society regularly. The account shall be audited by an Auditor every ear. 33. Dissolution Clause

In the event of dissolution or winding up of the Trust/Society/Institution/Association, the assets remaining as on the date of dissolution shall under no circumstances be distributed among the Trustee/Members of the Managing Committee/Members of the Governing Body, but the same shall be transferred to another charitable Trust/Society/Institution/Association whose objects are similar to those of this Trust//Society/Association/Institution and which enjoy recongnition under Section 80(G) of the Income Tax Act, 1961. 35. The benefits of the Trust/Society/Institution/Association shall be open to all irrespective of caste, creed or religion. 36. The funds and the income of the Trust/Society/Association/Institution shall be solely utilized towards the achievements of the objects and portion of it shall be utilized for payment to Trustees/Members by way of profits, interest, dividend etc.,”

19.5. A perusal of the above Rules indicates that for the purpose of amendments, amalgamation,

: 87 : filing of balance sheets, it is the KSR Act, 1960 which would apply. That means, that all the compliances would have to be made in terms of the KSR Act, 1960. 19.6. Bylaw 31, 32, 33, 35 and 36 define the organization as a Trust/Society/Organization/Institution. Thus, this original constitution is not clear as to whether it is a Trust or a Society or an Association or an Institution. Admittedly, there is no Trust which has been registered nor is a Trust deed in existence. Admittedly, there is neither a Society which is registered nor the bylaws of a Society in existence. 19.7. Thus, Section 18 which provides for registration of a pre-existing Trust is not applicable. Be that as it may, since the Paschim Vibhag Shikshan Mandal has been registered under the BPT Act and having been operational under the BPT Act,

: 88 : I am of the considered opinion that there would be no purpose which would be served by going into the issue of whether it could have been so registered under the BPT Act or not. The concern in this matter is as to what is to happen to the institution registered under the BPT Act upon the repeal of the BPT Act. 19.8. As aforesaid, bylaw 25, 26, 27 and 28 make KSR Act applicable to the important compliances. The Trust Act has not been made applicable under the bylaws. If that be so, when the institution was constituted the persons who constituted the institution being of the opinion that the KSR Act would be applicable, I am of the considered opinion that after the repeal of the BPT Act, the organization which had been registered under the BPT Act would now be required to be registered under the KSR Act.

: 89 : 19.9. Subsequent to the repeal of the BPT Act, certain persons out of the 36 trustees, got together and issued a notice on 03.06.2012 to all the other trustees. 29 of such trustees had received the notice in person and the remaining trustees had been served through a registered post acknowledgment due (RPAD). The RPAD cards having evidencing the service of the same on the remaining trustees has also been produced along with the Writ Petition No.81667/2013 at Annexure-D2, the said receipt of notice has also not been disputed in these proceedings. 19.10. In terms of the said notice, a meeting had been called for on 23.06.2012 at 2.00 p.m., to consider various aspects including the registration of a society. The meeting was held on 23.06.2012 attended by 29 trustees. In the said meeting, a managing committee was elected. A general body comprising of the 29

: 90 : trustees also appointed a committee to ascertain and formulate as also draft bye-laws for the purpose of registration of the erstwhile trust under the KSR Act. 19.11. In pursuance thereto that the bye-laws were drafted and submitted for registration under the KSR Act, pursuant to which, the registration was completed. 19.12. Another way of looking at this would be as to under what enactment registration has to be obtained in order to carry out functions as an educational institution. 19.13. Section 2(14) of the Karnataka Education Act, 1983 (hereinafter referred to as ‘KEA’ Act, 1983) reads as under: 2(14). "Educational Institution" means any institution imparting education referred to in section 3 and includes a private educational institution but does not include an institution under the direct management of the University or of the Central Government or a tutorial institution;

: 91 : 19.14. Section 3 provides for and requires registration of Educational Institutions, the manner and methodology of registration is provided under the Karnataka Education Institutions (Classification and registration) Rules 1997. 19.15. Rule 3-A of the said Rules of 1997 provides for eligibility for establishing and maintaining an educational institution. The same reads as under: 3-A. Eligibility for establishing and maintaining an educational institution.- (1) Following private body of persons shall be eligible for establishing and maintaining an educational institution imparting preprimary, primary and secondary education or any part thereof.-

(i) society registered under the Karnataka Societies Registration Act, 1960 (Karnataka Act 17 of 1960);

(ii) a charitable trust registered under Indian Trusts Act, 1882;

(iii) a company registered under Section 8 of the Companies Act, 2013 (Central Act 18 of 2013); and

(iv) a non-profit motive limited liability partnership registered under the Limited Liability Partnership Act, 2008 (Central Act 6 of 2009).

(2) The eligibility of the private body of persons prescribed in sub-rule (1) above shall be subject to the following conditions, namely.-

: 92 :

(i) the furtherance of education shall be one of its principal objectives;

(ii) the concerned body of persons shall have been established on non-proprietary and non-profit sharing basis;

(iii) the funds of the institution shall not be channelized for purposes other than furthering education within the ambit and functional area of the institution; and

(iv) the articles of association or memorandum of bye- laws or partnership agreement, as the case may be, shall specifically provide for the above conditions.

(3) Any person or body of persons already maintaining an education institution registered under the Act for imparting pre-primary, primary and secondary education or any part thereof and not coming under the categories specified in sub-rule (1) and not meeting the condition specified in sub-rule (2) shall taken action to ensure compliance within one year from the date of commencement of the Karnataka Educational Institutions (Classification and Registration) (Amendment) Rules, 2017.

19.16. Thus, it is seen that for a private body or entity to impart education it has to be registered as a society under the KSR Act or a Charitable Trust registered under the Indian Trusts Act or a Company registration under Section 8 of the Companies Act or a non-profit motive limited

: 93 : liability partnership registered under the Limited Liability Partnership Act, 2008. 19.17. In the present case, admittedly, there is no charitable Trust registered under the Indian Trusts Act, 1882. 19.18. An organization to impart education would have to satisfy the requirement of Rule 3-A of the Karnataka Education Institutions (Classification and registration) Rules 1997. 19.19. It is in this background that certain members who are the erstwhile trustees have come together and registered a Society. The said members constituting a majority of 29 out of 36 and the process and procedure having been followed as detailed herein above, I am of the considered opinion that the same is proper and correct and does not require any interference.

: 94 : 19.20. In the present case, the Trust carrying out educational activities could be registered under the Act of 1960. 19.21. Hence, I answer Point No.6 by holding that, in the present case, the registration of the society under the Karnataka Society Registration Act 1960 is proper.

20.1. Both the above points being related to each other are taken up for consideration together. 20.2. As noticed above, subsequent to the repeal of the BPT Act, certain persons out of the 36 trustees, got together and issued a notice on 03.06.2012 to all the other trustees. 29 of such

: 95 : trustees had received the notice in person and the remaining trustees had been served through a registered post acknowledgment due (RPAD). 20.3. It is rather strange that when notice had been received by the other remaining trustees thereafter the said trustees who did not attend the meeting on 23.06.2012 filed a Miscellaneous No.295/2012 said to be under Sections 3 and 7 of the Act of 1920 for confirmation of the names of certain persons to be the trustees. 20.4. As adverted to above, the Act of 1920 does not provide for registration of a trust. The trust, if any, would have to be registered under the Indian Trusts Act and it is only if there are any issues as enumerated above that a third party could approach a Court of a competent jurisdiction under Section 3 of the Act of 1920 for the purpose of providing certain documents

: 96 : and information and a trustee could approach under Section 7 for advice, instructions, etc. 20.5. The Trust not having been registered and there being no trust in existence, the question of Miscellaneous No.295/2012 having been considered, in my considered opinion, is also not proper. Since upon the repeal of the BPT Act, there was no entity like a trust which could have been recognized permitting a few of the trustees to approach the Court of competent jurisdiction in Misc.No.295/2012. 20.6. Be that as it may the pendency of the WP No.70187/2012 whereunder the Registration of the Society under the KSR Act was in question, had been suppressed in Misc.No.295/2012 and notice as regards the said proceedings were also taken out in a newspaper which, in my considered opinion, did not have adequate

: 97 : circulation which could have reached the other remaining trustees. 20.7. Knowing fully well that there are nearly 29 other trustees who are opposed to the application of Act of 1920 and that they have resolved for registration of the erstwhile trust under the KSR Act. It was the duty of the persons who had approached the Court in Misc. No.295/2012 to array them as party-respondents which was also not done, which establishes the malafides on part of the petitioners in Misc.No.295/2012. 20.8. As held above, the Act of 1920 would not be applicable for the purpose of registration but would only be applicable insofar as advice, direction, etc., in terms of Section 7 thereof, which could only be resorted to in the event of a Trust being in existence and registered.

: 98 : 20.9. In the present facts, there is no such registration of a Trust and further more, even the erstwhile Trust was not carrying on any activity which could be said to be charitable and/or religious in nature, the Act of 1920 would not have been applicable. 20.10. The 29 trustees had got issued a notice by registered post to the other trustees, held a meeting and resolved to register under the KSR Act after formulating bye-laws and thereafter registered the same. Since the Trust was carrying on educational activities and the object of education being covered as a permitted object under the KSR Act, the registration under KSR Act, in my considered opinion, is proper and correct. 20.11. WP No.70187/2012 which had been filed challenging the registration was allowed and the matter remitted to the District Registrar to

: 99 : consider the representations given. The Registrar vide his order dated 22.02.2013 confirmed the same after consideration of the representations. 20.12. The grievance of Sri.F.V.Patil, is that there was improper consideration of the aspects inasmuch as the applicability of Act of 1920 has not been considered and therefore, WP No.81667/2013 has been filed challenging the order of the District Registrar dated 22.02.2013. In view of my finding above that the Act of 1920 is not applicable and it is the KSR Act which is applicable which is what has been held that the District Registrar, the enquiry being limited only to registration I am of the considered opinion that the order passed by the District Registrar dated 22.02.2013 vide Annexure-M to WP No.81667/2013 is proper and correct and there are no grounds which have been made out in WP No.81667/2013 to interfere with the order

: 100 : passed by the District Registrar dated 22.02.2013. 20.13. As observed above the Misc. No.295/2012 had been filed under Sections 3 and 7 of the Act of 1920 for confirmation of the names of the persons named therein to be trustees. The said petition came to be allowed without proper notice to the other trustees. 20.14. The trial Court while considering the above Misc. No.295/2012 did so without proper notice to the aggrieved persons and only after hearing one side of the story. Though a notice was published in the newspaper "Haseeru Karnthi", the same did not have proper circulation nor it would come to the notice of the other trustees, thus, disabling them from contesting the matter. If at all they were aware of the said proceedings, they would have appeared, filed their objections and contested the matter and if all the other issues

: 101 : which have been pointed out would have been placed before the District Court. I am of the considered view that the District Court would not have allowed the petition under Misc. No.295/2012. 20.15. On coming to know of the orders passed in the Misc. No.295/2012, a Review Petition was filed on 09.07.2013 which came to be dismissed holding that the persons who had filed the review petition were not parties to the proceedings. Challenging the said order, WP No.81667/2013 has been filed. 20.16. Order XLVII of the Civil Procedure Code reads as under: 1. "Application for review of judgment" (1) Any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed, but no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

: 102 : (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review. Explanation.-The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. 2. To whom applications for review may be made 3. Form of applications for review The provisions as to the form of preferring appeals shall apply mutates mutandis, to applications for review. 4. Application where rejected (1) Where it appears to the Court that there is not sufficient ground for a review, it shall reject the application.

(2) Application where granted- Where the Court is

: 103 : of opinion that the application for review should be granted, it shall grant the same

Provided that- (a) no such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree or order, a review of which is applied for; and

(b) no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation. 5. Application for review in Court consisting of two or more judges Where the Judge or Judges, or any one of the judges, who passed the decree or made the order a review of which is applied for, continues or continued attaches to the Court at the time when the application for a review is presented, and is not or not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application, and no other Judge or Judges of the Court shall hear the same. 6. Application where rejected (1) Where the application for a review is heard by more than one judge and the Court is equally divided, the application shall be rejected.

(2) Where there is a majority, the decision shall be according to the opinion of the majority. 7. Order of rejection not appealable, Objections to order granting application

: 104 : (1) An order of the Court rejecting the application shall not be appealable; but an order granting an application may be objected to at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit. (2) Where the application has been rejected in consequence of the failure of the applicant to appear, he may apply for an order to have the rejected application restored to the file, and, where it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from appearing when such application was called on for hearing, the Court shall order it to be restored to the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for hearing the same.

(3) No order shall be made under sub-rule (2) unless notice of the application has been served on the opposite party. 8. Registry of application granted, and order for re- hearing When an application for review is granted, a note thereof shall be made in the register and the Court may at once re-hear the case or make such order in regard to the re-hearing as it thinks fit. 9. Bar of certain application No application to review an order made on an application for a review or a decree or order passed or made on a review shall be entertained.

20.17. A perusal of the above provision would indicate that a Review Petition could not only be filed by a party to the proceedings but by any other

: 105 : other person aggrieved by placing on record that it is such party who is affected by the orders passed and that there is an ex facie error which has been committed by the Court. 20.18. Of course, such a party could have also filed an appeal challenging the order passed in Misc. No.295/2012. However, having chosen to file a review petition, it was the duty of the District Court to have considered the review petition on merits and pass orders on merits especially when there are serious allegations which have been made as regards the applicability of the Act of 1920, as regards the service of notice and further more serious allegations having been made as regards the petitioners therein having abused the process of Court. 20.19. The District Court not having conducted such an enquiry but having dismissed the review petition in IA No.2 in Misc. No.295/2012, in my

: 106 : considered opinion is improper and as such, the challenge made thereto in WP No.81667/2013 would be required to be allowed. 20.20. This being also apparent by the subsequent Acts which occurred inasmuch as when one more petition was filed in Misc.P.No.118/2015 under the Act of 1920, the other trustees coming to know of the same, had entered appearance, objected to the same, upon evidence being led, the trial Court dismissed the Misc.P.No.118/2015 which had been challenged on 11.1.2017 in WP No.101972/2017. The only ground raised in WP 101972/2017 is that since earlier Misc. No.295/2012 was allowed, Misc. No.118/2015 also ought to have been allowed. I find no reasons or grounds, which are sustainable and made out in WP No.101972/2017 more so when having held that the Act of 1920 is not at all applicable.

: 107 : 20.21. Hence, I answer point No. 7 by holding that the Order passed in Civil Misc.No.295/2012 confirmed in the review petition is not proper and correct. I Answer point No.8 by holding that the Order passed in Misc.P.No.118/2015 is proper and correct. 21. Answer to point No.9: Whether respondent No.7 in WP No.101436/2018 could be entitled to his salary, if so from whom?

21.1. WP No.101436 of 2018 has been filed seeking for a certiorari to quash the order dated 15.03.2017 passed by the Director, Department of Public Education, which has been confirmed by the Commissioner and Appellate Authority, Department of Public Education. 21.2. By way of the said orders, the right of the society to administer the schools had been upheld by the said authorities, which has been challenged contending that in view of the orders

: 108 : passed by the Misc. No.295/2012, it is the Trust which should be incharge of the management of the school. Hence, the said authorities could not have recognized the society to be in management of the schools/trusts. 21.3. In the said proceedings, respondent No.7 therein had been appointed by the Trust as a Head Master of the school. There is no dispute that the said Head Master has discharged his role and function. 21.4. In the above background, having come to a conclusion that the Act of 1920 is not applicable there being no grounds made out in WP No.101436 of 2018, the same would be required to be dismissed. However, since the respondent No.7 has discharged his role and obligation, he cannot be deprived of the salary during the period of his working as a Head Master and as such, the society is directed to make payment of

: 109 : the arrears of salary due to respondent No.7 since during the pendency of the above petition, respondent No.7 has retired from service. 22. Answer to point No.10: In the above circumstances, whether there is any enquiry which is required to be conducted in terms of Section 25 of the Karnataka Societies Registration Act, 1960?

22.1. There are allegations and counter allegations as regards the management of the society. I have hereinabove held that the Act of 1920 is not applicable and the registration of the erstwhile entity as Society is proper and correct. 22.2. In the earlier round of the litigation in WP No.70187/2012, an enquiry was directed to be conducted by the District Registrar as regards the registration of the society, which the District Registrar conducted and reported that the registration is proper. However, since there being allegations in the past, which continued in

: 110 : these proceedings as regards the management of the society, it would but be required that the District Registrar be directed to conduct an enquiry in terms of Section 25 of the Act and if so required depending on the basis of the finding in the enquiry, the State would resort to the exercise of powers under Section 27A of KSR Act. 22.3. Hence, the District Registrar is directed to conduct an enquiry under Section 25 of the KSR Act, 1960 and submit a report as regards the accounts maintained by the Society, management of the society including the mismanagement of the society by exercising all powers under Section 25 of the Act of 1960, within 90 days of the receipt of the certified copy of this order. Both the sets of parties are directed to bring the above direction to the attention of the Jurisdictional District Registrar.

: 111 : 23. Answer to point No.6: What Order?

23.1. In view of the above I pass the following order, 23.1.1. WP No.77680/2013 and WP No.101972/2017 are dismissed; 23.1.2. WP No.81667/2013 is allowed a certiorari is issued the order dated 04.03.2013 by the learned Principal District Judge, Belgaum in Miscellaneous Petition No.295/2012 as per Annexure-P and order dated 09.07.2013 on I.A.No.II in Miscellaneous Case No.295/2012 as per Annexure-S are hereby quashed. 23.1.3. WP No.101436/2018 is disposed with a direction that the society forward the claim as regards the amounts due to respondent No.7 therein to the concerned authorities and to ensure that the due payments are made to respondent No.7.

: 112 : 23.1.4. The District Registrar is directed to conduct an enquiry into the affairs of the Society under Section 25 of the KSR Act, 1960 and submit a report as regards the accounts maintained by the Society, management of the Society by exercising all powers under Section 25 of the KSR Act, 1960 within 90 days of the receipt of this order. 23.1.5. The Additional Registrar General of Dharwad Bench is directed to forward a copy of this order to the Jurisdictional District Registrar. 23.1.6. No order as to cost.

Sd/- JUDGE

Sh upto para 6 Vmb/PRS