TaxTMI 
TaxTMI 
2018 (10) TMI 1756
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....-6 till they are capable of holding the office. I. FACTS OF THE CASE: 2. The present appellant, who is the petitioner before the learned Principal District and Sessions Judge, Dharwad filed an application under the provisions of Sections 3 and 7 of the Charitable and Religious Trust Act, 1920 (for short, 'the Act') Read with GO No. EKAROP SHASHAN-CR-72/2003-04 dated 04.06.2005 seeking declaration that the Resolution No.2 dated 24.07.2012 passed in the meeting of the Board of Trustees/Chairman held on 25.07.2012 for a period of five years from 25.07.2012 to 24.04.2017 as legal one and the Board of Trustees of the petitioner-Trust namely, 1. Dr.(Smt.) Laxmibai Premanand Patil Chairman 2. Sri. Premanand Veeranagouda Patil Life Trustee 3. Sri. Tayasaheb Bhimagouda Patil Board of Trustee 4. Smt. Amala Gurappa Kadagad Board of Trustee 5. Sri. Ravi Annappa Patil Board of Trustee be accepted/declared that they are lawful Trustees/Board of Trustees of the Public Trust by name Saradar Veeranagouda Patil, MAHILA VIDYA PEETH, Vidya Nagar, Hubli, bearing registration No.52(DWR), in the interest of justice, the office bearers nominated and selected in the mee....
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.... viz. 1) Tatyasaheb Bhimanagouda Patil, 2) Smt. Amala Gurappa Kadagada and 3) Sri. Ravi Annappa Patil were inducted as Board of Trustees for a period of five years. Thereafter, on 10.12.2012, it is resolved to get approval of the said proceedings and appointment of the Trustee by filing a petition before the District and Sessions Judge at Dharwad. 4. Thereafter, the petitioner-present appellant filed a petition in Misc. C. No.131/2012 under Sections 3 and 7 of the Act, before the learned Principal District and Sessions Judge, Dharwad, for the reliefs sought therein. II. FINDING OF THE DISTRICT COURT: 5. The learned District and Sessions Judge after hearing both the parties by the order dated 19.08.2013 allowed the petition in part and approved the meeting held on 25.07.2012 electing five trustees including the Chairman Smt. Laxmibai and the respondent Basantkumar's appointment as one of the Trustees for five years is declared as valid one and the order except the Chairman Smt. Laxmibai, the tenure of the remaining trustees including P.V. Patil is restricted to five years and the same is legal and valid. Hence, the present respondent filed WP No.85687/2013 (GM-R/C) b....
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....has relied upon the following judgments: i) Mavji C. Lakum Vs. Central Bank of India (2008) 12 SCC 726 ii) State of M.P. Vs. Visan Kumar Shiv Charan Lal (2008) 15 SCC 233 iii) M.M. T.C. Ltd. Vs. Commissioner of Commercial Tax (2009)1 SCC 8 iv) Ashok K. Jha Vs. Garden Silk Mills Ltd. (2009) 10 SCC 584 v) Mohammad Yunus Vs. Mohd. Mustaqim AIR 1984 SC 38 vi) Shalini Shyam Shetty and Anr. V. Rajendra Shankar Patil (2010) 8 SCC 329 vii) Jogendrasinhji Vijaysinghji Vs. State of Gujarat and Anr. (2015) 9 SCC 1 10. Per contra, Sri. M.T. Nanayya, the learned senior counsel appearing for the respondent contended that the writ petition filed before the learned Single Judge by the respondent against the order passed by the learned District and Sessions Judge dated 19.08.2013 made in Misc. C. No.131/2012, therefore, the learned Single Judge of this Court proceeded to pass the impugned order exercising his powers only under Article 227 of the Constitution of India. Therefore, the present appeal is not maintainable. He would further contend that the learned Single Judge of this Court has not exercised his original jurisdictio....
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....r five years was declared as valid one and further declared that except the Chairman Smt.Laxmibai, the tenure of the remaining Trustees including PW-1/P.V.Patil, was restricted for five years and the same is legal and valid. Though, the learned Single Judge allowed the writ petition in part, set aside the order passed by the District Court holding the respondent as a Trustee for five years and further modified the declaration that only the Chairman is entitled to a Life Trustee and held that the Chairman Smt.Laxmibai and the petitioner/the present respondent having been appointed prior to 29.04.1996 were entitled to hold office of a Trusteeship for life as provided by bye-law 6 till they are capable of holding the office. 16. The pleadings of the writ petition clearly depicts that the adjudication sought is based on the points already adjudicated upon by the District Court while exercising its powers under the provisions of Section 3 and 7 of the Charitable Religious Trust Act, 1920. The issue raised in the present writ petition was: "Whether the order impugned is legally sustainable or not?" 17. In the impugned order, the learned Single Judge has opined....
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....force, shall lie to and be heard by a Bench consisting of two other Judges of the High Court." 20. A careful reading of the said provision makes it clear that an appeal from a judgment or decree or order or sentence passed by a Single Judge in "the exercise of the original jurisdiction" of the High Court or under any law for time being in force shall lie to and be heard by the bench consisting of two Judges of the High Court. It means that an appeal shall lie to and be heard by a bench consisting of two other judges of the High Court against an order/judgment passed by the learned Single Judge in exercise of original jurisdiction based on the points raised in the writ petition that arose for adjudication for the first time before the High Court and not the points already adjudicated upon the sub-ordinate court or Tribunal. Then, definitely it will be a supervisory jurisdiction under Article 227 of the Constitution of India. 21. If the provisions of Section 4 of the High Court Act, 1961, is examined, it becomes apparent that Section 4 does not provide for an appeal against the judgment or order passed by a learned Single Judge of this Court in a petition under Article 22....
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....LIED UPON 24. In the very judgment relied upon by the learned counsel for the appellant in the case of JOGENDRASINHJI VIJAYSINGHJI VS. STATE OF GUJARAT AND OTHERS reported in [(2015) 9 SCC 1], the Hon'ble Apex Court at paragraphs 25 and 30 has held as under: "25. In Kishorilal v. District Land Development Bank and Others, a recovery proceeding was initiated by the respondent-Bank therein and the land mortgaged to the Bank were sold. An appeal preferred before the Joint Registrar, Co-operative Societies was dismissed and a further appeal was preferred before the Board of Revenue which interfered with the order passed by the Joint Registrar. The order passed by the Board of Revenue was called in question by the District Land Development Bank, which was allowed by the learned Single Judge. A letters patent appeal was preferred challenging the order of the learned Single Judge which opined that the order passed by the learned Single Judge was not maintainable as he had exercised the jurisdiction under Article 227 of the Constitution of India. 26. xxx xxx xxx 27. xxx xxx xxx 28. xxx xxx xxx 29. xxx xxx xxx....
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....ing its Full Bench Judgment in Ganga Saran to the effect that a writ was not maintainable as no mandamus could issue to a private person. The Bench considered the question of the impact of CPC amendment on power and jurisdiction of the High Court to entertain a writ of certiorari under Article 226 or a petition under Article 227 to involve power of superintendence. The Bench noted the legal position that after CPC amendment revisional jurisdiction of the High Court against interlocutory order was curtailed. 23. The Bench then referred to the history of writ of certiorari and its scope and concluded thus: (Surya Dev Rai case, SCC pp.687-90, paras 18-19 & 24-25) "18. Naresh Shridhar Mirajkar case was cited before the Constitution Bench in Rupa Ashok Hurra case and considered. It has been clearly held: (i) that it is a well-settled principle that the technicalities associated with the prerogative writs in English law have no role to play under our constitutional scheme; (ii) that a writ of certiorari to call for records and examine the same for passing appropriate orders, is issued by a superior court to an inferior court which certifies its records for examination; ....
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....27 of the Constitution, though such practice has been deprecated in some judicial pronouncement. Without entering into niceties and technicality of the subject, we venture to state the broad general difference between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate, revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction, the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, maybe, by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while e....
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....y observed by the referring Bench in Para 32 quoted above. We make it clear that though despite the curtailment of revisional jurisdiction under Section 115 CPC by Act 46 of 1999, jurisdiction of the High Court under Article 227 remains unaffected, it has been wrongly assumed in certain quarters that the said jurisdiction has been expanded. Scope of Article 227 has been explained in several decisions including Waryam Singh and another vs. Amarnath,, Ouseph Mathai vs. M. Abdul Khadir], Shalini Shyam Shetty vs. Rajendra Shankar Patil and Sameer Suresh Gupta vs. Rahul Kumar Agarwal. In Shalini Shyam Shetty, this Court observed: (SCC p.352, paras 64-67) "64. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases the High Courts, in a routine manner, entertain p....
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....Articles 226 and 227 of the Constitution of India in the case of HIMALAYAN CO-OP. GROUP HOUSING SOCIETY VS. BALWAN SINGH AND OTHERS reported in [(2015) 7 SCC 373] relying upon the earlier judgment in the case of Radhey Shyam Vs. Chhabi Nath reported in (2015) 5 SCC 423, has held at paragraphs 15 to 17 as under: "15. The first issue need not detain us for long. It is the stand of the learned counsel for the respondents, that, since the Writ Petition that was filed was both under Articles 226 and 227 of the Constitution of India, the Court apart from examining the merits of the Writ Petition could also issue incidental and ancillary directions to do complete justice between the parties litigating before it. We do not agree. The issue in our view is no more debatable in view of the decision of this Court in Jai Singh. vs. Municipal Corporation of Delhi (2010) 9 SCC 385. The Court has stated: (SCC p.390, para 15) "15. ...we may notice certain wellrecognised principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this article, has the jurisdiction to ensure that all subo....
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....dgment of the Hon'ble Apex Court in the case of LIFE INSURANCE CORPORATION OF INDIA VS. NANDINI J.SHAH reported in AIR 2018 SC 1197 (presided by three judges) considering the earlier judgments relied upon by both learned Senior Counsel for the appellant and the learned Senior Counsel for the respondent in the case of Radhey Shyam Vs. Chhabi Nath and Jogendrasinhji Vijaysinghji Vs. State of Gujarat, the Hon'ble Apex Court at paragraphs 51 to 55 has held as under: "51. In the case of Radhey Shyam (AIR 2015 SC 3269 supra) decided by a three-Judge Bench, this Court after analyzing all the earlier decisions on the point, restated the legal position that in cases where judicial order violated the fundamental right, the challenge thereto would lie by way of an appeal or revision or under Article 227, and not by way of writ under Article 226 and Article 32. The dictum in paragraphs 25, 27 and 29 of this decision is instructive. The same read thus: "25. It is true that this Court has laid down that technicalities associated with the prerogative writs in England have no role to play under our constitutional scheme. There is no parallel system of King's Court in In....
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.... of a Single Judge. In paragraph 30 of the reported decision, the Court observed thus: "30. From the aforesaid pronouncements, it is graphically clear that maintainability of a letters patent appeal would depend upon the pleadings in the writ petition, the nature and character of the order passed by the learned Single Judge, the type of directions issued regard being had to the jurisdictional perspectives in the constitutional context. Barring the civil court, from which order as held by the three-Judge Bench in Radhey Shyam (AIR 2015 SC 3269) (supra) that a writ petition can lie only under Article 227 of the Constitution, orders from tribunals cannot always be regarded for all purposes to be under Article 227 of the Constitution. Whether the learned Single Judge has exercised the jurisdiction under Article 226 or under Article 227 or both, needless to emphasise, would depend upon various aspects that have been emphasised in the aforestated authorities of this Court. There can be orders passed by the learned Single Judge which can be construed as an order under both the articles in a composite manner, for they can co-exist, coincide and imbricate. We reiterate it wou....
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....ertain the Letters Patent Appeal, as to in what manner the judgment of the learned Single Judge would come within the purview of exercise of powers under Article 226 of the Constitution of India. Absent that analysis, the Division Bench could not have assumed jurisdiction to entertain the Letters Patent Appeal merely by referring to the earlier decisions of the same High Court in Nusli Neville Wadia and Prakash Securities Pvt. Ltd. 55. In other words, the Division Bench of the Bombay High Court ought to have dismissed the Letters Patent Appeal filed by the respondents as not maintainable. In that event, it was not open to the Division Bench to undertake analysis on the merits of the case as has been done in the impugned judgment. That was impermissible and of no avail, being without jurisdiction. Indeed, that will leave the respondents with an adverse decision of the learned Single Judge dismissing their Writ Petition No.4337 of 2012 vide judgment dated 14.08.2012, whereby the eviction order passed by the Estate Officer dated 05.12.2011 and confirmed by the City Civil Court on 03.04.2012 has been upheld." In view of the above, it is clear that the impugned order h....