PETITIONER:
KRISHNA VEER SINGH BACHANSINGH CHAUHAN
Vs.
RESPONDENT:
WASUDEO MOTIRAM KALMEGH AND ANR.
DATE OF JUDGMENT30/08/1995
BENCH:
JEEVAN REDDY, B.P. (J)
MUKHERJEE M.K. (J)
CITATION:
JT 1995 (6) 324 1995 SCALE (5)49
ACT
HEADNOTE
JUDGMENT
ORDER
On August 6, 1990, this Court made the following order :
Having regard to the circumstances that
the body that is brought into being is
an adhoc managing committee pending
final decision by the Joint Charity
Commissioner it appears to us that ends
of justice would be met by directing the
said adhoc managing committee, which
includes the said Vasudeo Motiram
Kalmegh and Suresh Moolchand Agarwal to
furnish accounts of the rents or licence
fee collected from the licencees (who
were not-applicants 4 to 7 respondents
before the Charity Commissioner) for the
period from April, 1987 to 31st of July,
1990. If upon such furnishment of
accounts and funds are found to be in
the hands of the adhoc managing
committee or with Vasudeo Motiram
Kalmegh and Suresh Moolchand Agarwal or
any of them, as the case may be, such
balance shall also be deposited with the
Charity Commissioner within two months
from today. The adhoc managing committee
shall, with effect from the 1st August,
1990 collect the said licence fee and
deposit the same with the Charity
Commissioner every month regularly.
This arrangement shall continue
till the matter before the Joint Charity
Commissioner is finally disposed of as
envisaged by the order of the High
Court.
Whatever we have said in this order
or whatever may be implicit in it, it
may not be taken into account in the
final disposal of the proceedings now
pending or to be taken in future in
respect of this Samiti, as this order is
intended to operate as an interim
arrangement."
Complaining that the respondents have failed to carry out the said order, the petitioner, Sir Krishna Veer Singh Chauhan (K.S.Chauhan ) moved the present application for contempt.
Vidharbha Rashtrabhasha Prachar Samiti, Nagpur (Samiti) is a body registered under the Bombay Trust Act, 1950 having its office at Nagpur. In February 1982, the petitioner, Chauhan, was appointed as the Secretary of the Samiti. He says that in April 1982, the respondents, Sri Kalmegh and Sri Suresh Agarwal, forcibly took away the keys of the office of the Samiti and took control of the affairs of the Samiti. The petitioner says that he applied to the Joint Charity Commissioner to direct the respondents (S/Sri Kalmegh and Agarwal) to hand over the charge of the affairs of the trust to him. Orders were made by the authorities against both the respondents as prayed for by the petitioner. The respondents were also restrained from dealing with or alienating or otherwise transferring the Samiti properties.
On November 3, 1987, the Joint Charity Commissioner passed the following order :
"Non-applicant No.1 Prof. W.M.
Kalmegh and NA No. 3. Shri Jagannath
Jadia are proved to have committed
misfeasance and misappropriation in
respect of property of Rs.35,000/- and
125 cement bags of the trust Vidarbha
Rashtrabhasha Prachar Samiti, Nagpur,
PTR No. F-639 (Nagpur) and, therefore,
they are hereby dismissed from the
Trusteeship of the aforesaid Trust, PTR
No. F-639 (Nagpur)."
It is stated that the respondents challenged the said order by way of a writ petition in the Bombay High Court, Nagpur Bench.
In the year 1988, the Joint Charity Commissioner initiated suo motu proceedings under Section 50-A of the Bombay Public Trust Act to enquire into the affairs of the trust.
On April 21, 1989, the High Court disposed of the writ petition filed by the respondents directing the Deputy Charity Commissioner, Nagpur "to draw a list of the persons who belong to category Nos. 1 to 3 of clause -7 of the Constitution and cause a body of five persons to be elected by them by treating category Nos. 1 to 3 as an electoral college, within two months from the date of this order. The petitioners and the respondent No.1 shall thereupon hand over the charge of the adhoc Managing Committee which will manage the affairs of the Vidarbha Rashtra Bhasha Prachar Samiti, Nagpur, until the matter is finally decided in suo moto proceedings initiated by the Joint Charity Commissioner, Nagpur, under section 50-A of the Bombay Public Trusts Act."
Against the said order, the petitioner approached this Court by way of Special Leave Petition (C) No. 2545 of 1990 in September 1989. After notice to the respondents and after hearing them, this Court made the aforesaid order on August 6, 1990.
In this contempt petition, the following order was made by this Court on August 23, 1993 :
"We have heard Sri G.L. Sanghi,
learned senior counsel for the
petitioner and Sri S.B. Wad, learned
senior counsel for the ad hoc trustees.
We are afraid the compliance of the
order dated 6th August, 1990 by the ad
hoc trustees is only partial and
incomplete. The ad hoc trustees are
directed to furnish to this Court within
four weeks from today an affidavit of
the year-wise break-down of the income
and expenditure of the Trust for the
years 1982-83 to 1990-91. They shall
indicate in respect of each year, now
many tenants or licensees were in
occupation of the property of the Trust;
the specification of the area and extent
of such occupation; what was the amount
of rent or licence fee realisable from
them; what amounts were actually
realised and what amounts remained
unrealised. They shall also indicate in
an year-wise break-up what action was
taken by the ad hoc trustees to recover
the amounts in arrears.
That apart, in respect of the
period 6th August, 1990 to 5th August,
1993, a similar statement with similar
break-down of the figures shall also be
furnished. It would appear that for none
of these years the accounts were got
audited by the trustees. The trustees
are admittedly governed by the
provisions are the Bombay Public Trust
Act, 1950. Provisions of Section 32 and
33 statutorily require the trustees to
have the accounts audited. We do not
know how the authorities under the Act
permitted or ignored this lapse.
Likewise, the petitioners shall
also file their affidavits giving the
necessary particulars as to how,
according to them, the income of Rs. 10
lacs per year.
Sri Wad submitted that the trustees
have produced the books of accounts
before the Charity Commissioner and that
they need permission to inspect the
books of accounts. The trustees have
such permission.
It would be appropriate if a
certificate of Chartered Accountant is
also produced as regards the accounts.
This would go in favour of the
trustees while examining the rectitude
of their conduct in respect of the
management of the affairs and funds of
the Trust.
We would also like to comment on
the undue protraction of the proceedings
under the Bombay Public Trust Act, 1950
which were commenced suo motu by the
authorities. It is appropriate that
these proceedings are expedited and the
Charity Commissioner or the Deputy
Charity Commissioner, as the case may
be, concludes these proceedings
expeditiously and, in any event, not
later than within four months from
today. Let a copy of this order go to
the Charity Commissioner for compliance.
Call on 4th October, 1993. Personal
presence of the contemners is
discharged."
Meanwhile, the Joint Charity Commissioner concluded the suo motu proceedings initiated by him under Section 50-A of the Act and passed orders on December 31, 1993 framing a scheme for the trust and appointing trustees thereunder. The petitioner was appointed as the secretary of the trust. The said Board was directed to take over charge from the then existing body, whosoever it may be, and to manage the affairs of the trust in accordance with its objects and the law. Pursuant to the orders of the Joint Charity Commissioner, the petitioner says, he obtained possession of the trust properties on August 22, 1994 with the help of police.
Pursuant to the order of this Court dated August 23, 1993, the respondents filed certain audited accounts, the correctness whereof was questioned by the petitioner. When the matter came up before this Court again on November 10, 1994, the following further order was made :
"In this contempt case, this Court
made an order on 23rd August, 1993.
According to the said order, the ad hoc
Trustees, who were respondents herein,
were directed to submit year-wise
breakdown of the income and expenditure
of the Trust for the years 1982-83 and
1990-91. Indeed, even subsequent to the
year 1990-91, they were directed to
continue to deposit the amounts and file
accounts so long as they remained in
management of the Trust property. It is
stated now that the respondent-ad hoc
Trustees were in management of the Trust
property till August, 1994. Mr. S.B.
Wad, learned senior counsel for the
respondents says that in compliance with
the aforesaid order as well as earlier
order dated 6th August, 1990, the
respondents have filed the audited
accounts for the years 1982-83 to 1990-
91. He further submits that the audited
accounts for the subsequent years have
been submitted before the Charity
Commissioner. Learned counsel says that
in accordance with the said accounts,
the deposits have also been made by the
respondents with the Charity
Commissioner. Learned counsel for the
petitioner, however, disputes the
correctness of the audited accounts
filed by the respondents.
Inasmuch as the audited accounts
are quite voluminous and also because it
is not possible or feasible for this
Court to go into the correctness or
otherwise of the said accounts, we
direct the Charity Commissioner, Bombay,
to look into the matter. The Charity
Commissioner, Bombay, or such other
officer as the Charity Commissioner may
designate, will look into the
correctness of the accounts, make
necessary enquiries and verifications as
may be called for in the circumstances
of the case, after notice to the
petitioner and the respondents herein,
and submit a Report to this Court about
the correctness of the said accounts
and deposits which may have been made by
the respondents. It is obvious that the
Charity Commissioner or the officer as
may be designated by the Charity
Commissioner shall be empowered to
receive such evidence as may be produced
before him or as may be gathered by them
for the aforesaid purpose.
The Report of the Charity
Commissioner shall be submitted within
four months from today.
Copies of the order dated 6-8-1990
and 23-8-1993 shall be enclosed to the
copy of this order communicated to the
Charity Commissioner."
Pursuant to the said order, the Deputy Charity Commissioner, Nagpur (who was entrusted the job of submitting the report) has submitted his report dated February 7, 1995. In this report, the Deputy Charity Commissioner has mentioned the total amount of rent deposited by the respondents during the period April 1, 1982 to June 30, 1994 and the dates on which the various amounts were deposited. according to this statement, a total amount of Rs. 92,487.92 p. has been deposited for the said period of over twelve years. The Deputy Charity Commissioner has reported that it has not been possible for him to check the correctness of the accounts submitted by the respondents inasuch as the relevant registers and books of the Samiti have not been made available to him. He has reported that while the respondents complain that inasmuch as the possession of the office and properties of the Samiti was taken by the petitioner by force and with police help, and because they do not have access to the office of the Samiti, they are not in a position to produce the accounts and registers to enable the Deputy Charity Commissioner to verify the accounts submitted by them. On the other hand, the report says, the petitioner complained that when he took possession of the office and properties of the Samiti with the police help there were no records, registers and account books of the Samiti in the office and that only a few properties not belonging to Samiti were found in its premises. He stated that all the account books must have been taken away by thew respondents to cover up and conceal their acts of misfeasance, misappropriation and mismanagement. The petitioner has also submitted that the income of the Samiti is more than Rs. 1-1/2 lakhs every year and that depositing a measly amount of Rs.92,497.92p. for a period of twelve years is not only a non-compliance of the orders of this Court but also a positive proof of their misappropriation and mismanagement. He prays that the respondents should be directed to deposit the true amounts realised by them from the Samiti properties.
Before we deal with the contentions urged by the parties, we feel constrained to reiterate the observations made by this Court in its order dated August 23, 1993 with respect to "undue protraction of the proceedings under the Bombay Public Trust Act, 1950 which were commenced suo motu by the authorities". The authorities in-charge of ensuring proper management of public trusts should be more vigilant and prompt in discharge of their duties. Delays on their part only help the unscrupulous persons in wasting the trust properties and in other acts of misfeasance. The facts of this case show how the validly appointed persons have been thwarted by the respondents from coming into possession of the properties and office of the trust. It would not be unreasonable to assume in the circumstances of this case that the respondents who somehow came into possession and management of the trust properties were interested in protracting their control and management by one or the other means, obviously with a view to enrich themselves unjustly at the cost of the trust and its properties. The table contained in the report of the Deputy Charity Commissioner discloses that the first deposit by the respondents is in a grand sum of Rs. 124.92p. on October 4, 1990. Several amounts have been deposited thereafter from time to time. Prima facie it is not explicable how it is that for the period April 1, 1982 to July 31, 1990 only a sum of Rs. 124.92p. was be available and why was it deposited after a lapse of eight years. For subsequent period, various amounts have been deposited but neither there is any consistency in the amounts deposited nor is there any regularity in the timing of the deposits. In the circumstances, this is a proper case where a reasonable ascertainment should be made of the income derived and expenditure incurred by the respondents for the period April 1, 1982 to August 22, 1994, the period during which they where in management and control of the affairs and the properties of the trust. No doubt, they have filed certain audited accounts but the correctness of the said accounts is disputed by the petitioner. The Deputy Charity Commissioner has also not reported that the said audited accounts are acceptable. There is a controversy with respect to the custody and possession of the relevant account books and registers. In this contempt case, it is not possible to go into the truth or otherwise of the rival contentions with respect to the custody and possession of the books and accounts. At the same time the matter cannot be left as it is, more particularly, in view of the fact that not a single paise was deposited for the period April 1, 1982 to July 31, 1990 except a petty sum of Rs. 124.92p. on October 4, 1990. The respondents cannot be allowed to get away trust funds just because the relevant account books have been made scarce. The income and expenditure can yet be ascertained by other means. In the circumstances, the following direction is made: the Deputy Charity Commissioner, Nagpur shall make a best-judgment estimate of income of the trust properties for the period April 1, 1982 to August 22, 1994 after making such appropriate enquiries as he may find necessary. He can, of course, look into and consider the audited accounts filed by the respondents in this connection. He shall also make an estimate of the expenditure which was reasonably required for running and managing the trust and trust properties. This exercise will disclose the amount that should have been deposited by the respondents for the said period. After giving credit to the amount already deposited, we can then direct recovery of the balance from the person and properties of the respondents by taking appropriate proceedings according to law.
All the immovable properties of the respondents are attached herewith. The attachment shall continue until final orders are passed in this case. The Deputy Charity Commissioner shall give effect to this order by making appropriate directions.
The matter is adjourned by four months. List after four months. The Deputy Charity Commissioner shall send a report of the proceedings taken and orders passed by him in the said period of four months pursuant to thia order.