SITARAM PAMAJI AWACHAR Vs. HARI KANHUJI JAWALKAR

JUDGEMENT

(1.) THE present non-applicants made an application to the Court of the Additional District Judge, Khamgaon, purporting to be under Section 3(2) read with Section 10(3)(iii) and (iv), Central Provinces Religious and Charitable Trusts Act, 1937. Preliminary issues were framed whether the application was maintainable and whether it had been properly signed by the required number of panchas. The only Section under which the application could be brought is Section 12, which prescribes that any three persons having interest in a public trust, etc., may make to the Court a written report of mismanagement or maladministration, etc. This application has been made by two applicants only, but they say that they were authorized by the body of present panchas to take necessary steps against the previous panchas, which include Sitaram and Shankar, the present applicants. The lower Court has found that Section 10 of the Act is wide enough to include an inquiry into past administration and also that it cannot be said that the old panchas are yet out of office. This last contention is not in accordance with the application itself (para. 6) which says that the old body was replaced by a new body of panchas and (para. 7) that charge was taken over by the new body. Now the object of this Act is to provide for the better management and administration of religious and charitable public trusts in the Central Provinces, and Section 10 empowers the Court to pass orders "for the proper management or administration of the trust property as it thinks fit." But according to the application itself the trust property is now being properly managed and administered since 25th August 1937 when the new panchas took over. The application was filed on 31st August 1937. Therefore no order of the Court for the proper management or administration is now being sought; but what is being asked is an inquiry into past administration and redress for the same. That is clearly beyond the scope of the Act, and the proper remedy would be by a regular civil suit.

(2.) THE other objection under Section 12 has been disallowed by the lower Court which holds that this Section does not say that the application must be signed by three persons but that it should be assumed that because two applicants have been empowered by more than three persons the application itself is to be deemed to be made by three or more. That, to my mind, is straining the meaning of Section 12. Just as under Section 92, Civil P.C, a minimum of two persons is prescribed for taking action, here the writ-ten report itself has to be made by three persons. The idea is that three persons represent those having interest in the public trust and the Legislature does not contemplate that these three persons in their turn be represented by a smaller number. I do not think that Order 7, Rule 4, Civil P.C, is at all applicable to the situation. Learned Counsel for the non-applicants says that he would have been willing to cure any defect if pointed out to him. But as held in Darves Haji Mahamad Sidik v. Jainudin (1906) 30 Bom 603 a defect like this is not curable as it means that the application was bad at its institution and amendment could not better it. The application for revision must therefore be allowed. The application in the lower Court is dismissed as untenable with costs, counsel's fee being Rs. 25. In this Court costs will be on the non-applicants. Counsel's fee Rs. 15.