Bombay High Court
Dr. Yashwant S. Mashankar vs The Joint Charity Commissioner, ... on 5 October, 2018
Equivalent citations: AIRONLINE 2018 BOM 1106
Author: S.B. Shukre
Bench: S.B. Shukre
J-wp3352.18.odt 1/26
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION No.3352 OF 2018
Dr. Yashwant S. Mashankar,
Aged about 79 years,
R/o. Near Gopal Talkies, Belpura Road,
Rajapeth, Amravati. : PETITIONER
...VERSUS...
1. The Joint Charity Commissioner,
Amravati.
2. The Nutan Vidarbha Shikshan Mandal,
Amravati, bearing registration No.PTR
No. F-136, Jog Chowk, Amravati,
through its Secretary,
Mr. Ninad Wasudeorao Soman,
R/o. Vrundawan Colony, Sainagar,
Amravati.
3. Mr. Ninad s/o. Wasudeorao Soman,
Aged about 50 years,
Occupation : Service,
R/o. Vrundawan Colony, Sainagar,
Amravati. : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shri M.G. Bhangde, Senior Advocate for the Petitioner.
Shri Sunil V. Manohar, Senior Advocate with Shri Atharva Manohar with Shri
N.A. Gaikwad, Advocate for the Respondent Nos.2 and 3.
Shri S.M. Ukey, Additional Government Pleader for Respondent No.1.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM : S.B. SHUKRE, J.
Date of Reserving the Judgment : 2.8.2018.
Date of Pronouncing the Judgment : 5.10.2018.
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ORAL JUDGMENT :
1. Heard.
2. Rule. Rule made returnable forthwith.
3. Heard finally by consent.
4. This petition challenges the legality and correctness of the order dated 3.4.2018, passed by the Joint Charity Commissioner, thereby quashing and setting aside the order dated 29.4.2017, passed by the Assistant Charity Commissioner, Amravati rejecting the Change Report bearing Inquiry No.986/2013.
5. The respondent No.2 is a registered Trust and is governed by its constitution and respondent No.3 is it's Secretary since the year 2013 and its reporting trustee. The petitioner was elected as the President of respondent No.2 in its General Body Meeting held on 25.3.2003. The tenure of the petitioner as President of respondent No.2 was for three years.
6. The petitioner tendered his resignation from the post of President by his letter dated 12.2.2010. It was received by the Secretary at 12.50 p.m. on the same day. Before the resignation of the petitioner was accepted by the governing body of the respondent No.2, the petitioner withdrew it by sending his letter on 19.2.2010. This letter was received by the then Secretary of the Trust at 1.30 p.m. of 23 rd February, ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:55:50 ::: J-wp3352.18.odt 3/26 2010.
7. The governing body of the Trust decided to consider the resignation of the petitioner and, therefore, through its Secretary, a notice dated 21.2.2010 was issued convening the meeting of the governing body on 25.2.2010. There were also other subjects to be discussed in this meeting. The first subject, however, was to discuss and decide about resignation of the petitioner from the post of President of respondent No.2 Trust.
8. The meeting was held as scheduled on 25.2.2010. It appears that the letter dated 19.2.2010 withdrawing the resignation was not placed before the governing body by the then Secretary of the Trust. By a resolution passed in the meeting, the governing body accepted the resignation of the petitioner. The governing body also resolved to place the resolution before the General Body of respondent No.2 for its confirmation. However, the resignation letter dated 12.2.2010, withdrawal of resignation letter dated 19.2.2010 and the resolution of the governing body dated 25.2.2010 were not placed at any point of time before the general body of respondent No.2. In meeting held on 25.2.2010, Dr. Keole was appointed as President of respondent No.2 and Smt. Ramatai Asnare appointed as its Senior Vice-President.
9. The respondent No.2, through its secretary respondent No.3, filed a Change Report being Inquiry No.986/2013 on 26.4.2013 before ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:55:50 ::: J-wp3352.18.odt 4/26 the Deputy Charity Commissioner, Amravati. It was accompanied by application for condonation of delay. The report was in respect of the change occurred in the governing body after acceptance of resignation of the petitioner and appointment of Dr. Keole in his place as President and Smt. Ramatai Asnare as its Senior Vice-President. As soon as the petitioner learnt about the same, the petitioner moved an application for joining him as an objector to the said Change Report. It was allowed by the Deputy Charity Commissioner, Amravati by order passed on 16.9.2013. The petitioner then filed his reply to the application for condonation of delay moved on behalf of respondent No.2 and opposed the application. By the order passed on 16.9.2013, however, the Deputy Charity Commissioner, Amravati condoned the delay.
10. The petitioner filed his objection to the Change Report submitted on behalf of the respondent No.2. The evidence was recorded and Change Report was decided finally by Assistant Charity Commissioner, Amravati. The Assistant Charity Commissioner, Amravati, by his order passed on 29.4.2017 rejected the Change Report vide Inquiry No.986/2013.
11. The elections to the governing body were held in May 2013 and August 2016 and the Change Reports in respect of changes were filed on behalf of respondent No.2, which are stated to be still pending. After rejection of the Change Report vide Inquiry No.986/2013, it ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:55:50 ::: J-wp3352.18.odt 5/26 appears, fresh elections to the governing body were held in the year 2017 and a Change Report in that regard bearing Inquiry No.168/2017 has been filed and it is also pending with the Deputy Charity Commissioner, Amravati.
12. While, fresh elections for constituting the governing body after expiry of three years term of the elected governing body were being held quite regularly, the respondent No.2 being aggrieved by the order dated 29.4.2017 passed by the Assistant Charity Commissioner, Amravati rejecting the Change Report vide Inquiry No.986/2013 preferred an appeal under Section 70 of the Maharashtra Public Trusts Act, 1950 (in short, "M.P.T. Act") before the Joint Charity Commissioner, Amravati, the respondent No.1. The appeal was registered as Appeal No.41/2017.
13. After hearing the parties, learned Joint Charity Commissioner by his order passed on 3.4.2018 allowed the appeal reversing the view taken by the Assistant Charity Commissioner and held that withdrawal of the resignation submitted by the petitioner was of no consequence as the resignation tendered by him on 12.2.2010 was unilateral and complete in all its respects and, therefore, it took effect immediately the moment it was received by the Secretary and that there was no need for the governing body to accept it by any specific act on its part, there being no provision either in the constitution of the Trust or in the M.P.T. Act requiring a resignation to take effect only upon its acceptance by the ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:55:50 ::: J-wp3352.18.odt 6/26 other side. Thus, the learned Joint Charity Commissioner accepted the Change Report vide Enquiry No.986/2013. It is this order which is under challenge in the present petition.
14. I have heard Shri M.G. Bhangde, learned Senior Counsel for the petitioner, Shri Sunil V. Manohar, learned Senior Counsel for the respondent Nos.2 and 3 and Shri S.M. Ukey, learned Additional Government Pleader for the respondent No.1. I have carefully gone through the impugned order and the paper book of the petition containing copies of relevant documents.
15. Upon hearing both sides, the question that arises for my consideration is - whether in the facts and circumstances of the case the resignation dated 12.2.2010 submitted by the petitioner resigning office of the President was a unilateral act, not depending for it to take effect upon any act on the part of the respondent No.2 Trust in the nature of its acceptance ?
16. According to Shri M.G. Bhangde, learned Senior Counsel for the petitioner, the resignation dated 12.2.2010 submitted by the petitioner in the present case was not unilateral and this could be ascertained from the conduct of the respondent Nos.2 and 3, giving an indication that the Trust considered it to be bilateral requiring acceptance by it. He submits that admittedly there is no provision either in the constitution of the Trust or the M.P.T. Act which deals with the ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:55:50 ::: J-wp3352.18.odt 7/26 issue of vacating of the office of the President by resignation and, therefore, the issue would be governed by the general law i.e. Indian Contract Act, in particular, Sections 3 and 4 thereof and also by the conduct of the parties. He further submits that the convening the meeting of general body on 25.2.2010 for discussing and deciding about the resignation submitted by the petitioner and passing of resolution of acceptance, subject to confirmation by the general body indicated sufficiently that the respondent No.2 Trust considered the issue of resignation submitted by the petitioner not as an unilateral act but a bilateral act requiring a proposal of resignation by one party and its acceptance by the other party and, therefore, till the time the proposal of resignation was not accepted, it was open to the petitioner to withdraw his resignation which he in fact did withdraw before acceptance of his resignation and as such on 25.2.2010 there was no resignation submitted by the petitioner which was available for consideration by the governing body of the respondent No.2.
17. Learned Senior Counsel for the petitioner further submits that the then Secretary of the respondent No.2 Trust, did not place before the governing body on 25.2.2010 the withdrawal of the resignation letter dated 19.2.2010, admittedly received by him on 23.2.2010 and had this withdrawal letter been placed before the govering body, it might possibly have resolved in a different way. In other words, according to him, all ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:55:50 ::: J-wp3352.18.odt 8/26 relevant facts were not placed before the governing body and, therefore, the resolution passed by it was incomplete and no effect in the eye of law.
18. Learned Senior Counsel for the petitioner further submits that even the act of acceptance of the resignation by the governing body, as resolved by that body itself, was subject to confirmation by the general body and as the resolution of the governing body was never placed before the general body along with resignation letter dated 12.2.2010 and letter dated 19.2.2010 withdrawing the resignation, there was no valid acceptance of the resignation of the petitioner by respondent No.2 Trust.
19. Shri Sunil V. Manohar, learned Senior Counsel for the respondent No.2 submits that in the present case, a bare perusal of the resignation letter dated 12.2.2010 would clearly reveal that submission of the resignation was unilateral and it took effect immediately from acquisition of its knowledge by the respondent No.2 Trust and that there was no need for the respondent No.2 Trust to formally accept it. He further submits that such being the nature of the resignation tendered by the petitioner, subsequent withdrawal of the resignation by the petitioner was of no consequence as the resignation was complete in all its sense the moment it was tendered and received by the respondent No.2 Trust through its Secretary and that nothing had been left thereafter to be done ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:55:50 ::: J-wp3352.18.odt 9/26 either by the petitioner or by the Trust or both.
20. Learned Senior Counsel further submits that there are three kinds of resignations, which are ; i) the resignation that takes effect immediately, ii) the resignation that is conditional and, iii) the resignation that takes effect from a future date. He submits that the resignation tendered by the petitioner in the present case belongs to the first category and there being no provision made either in the constitution or in the M.P.T. Act requiring the Trust to accept the resignation once tendered, the resignation in the present case became an act completed by the petitioner in an irreversible manner from the time it was tendered by him and received by the respondent No.2 Trust. He further submits that in a juristic sense a resignation signifies an intention to sever links with office and it is a spontaneous relinquishment of office and the moment this is done, the resignation becomes complete and irreversibly severs all links of the resigner with his office and this is what has happened in the present case. Therefore, according to him, subsequent withdrawal of the resignation by the petitioner was of no consequence and even if any resolution was passed in the governing body meeting held on 25.2.2010 accepting the resignation, the act being unnecessary would not change the basic characteristic and the effect of the resignation submitted in the present case by the petitioner.
21. Learned Senior Counsel for the respondent Nos.2 and 3 ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:55:50 ::: J-wp3352.18.odt 10/26 further submits that the conduct of the petitioner being not honest, would not entitle him to seek any relief from this Court in exercise of its extraordinary writ jurisdiction. He submits that almost for the same relief, the petitioner has filed a civil suit bearing Regular Civil Suit No.45/2010 before the Court of 2nd Joint Civil Judge, Senior Division, Amravati. He submits that in this suit, the petitioner has sought declaration to the effect that the resignation tendered by him on 12.2.2010 was procured by the respondent No.2 by unfair means and through coercion and that no meeting was ever held and no business was ever transacted on 25.2.2010. He further points out that by this suit, the petitioner also sought an injunction against the respondent No.2 and its Secretary restraining them from ousting or removing the petitioner from the office of the President. He further submits that in this suit, an application seeking temporary injunction was also filed by the petitioner but then it was not pressed by him. He further submits that all these facts have been suppressed by the petitioner in the present petition and, therefore, on this ground alone, this petition is liable to be rejected.
22. Learned Senior Counsel for the respondent Nos.2 and 3 further submits that in any case the issue involved in this petition has been rendered academic due to holding of at least three elections to the governing body in May 2013, August 2016 and April 2017 and the Change Reports in respect of these three elections are still pending for ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:55:50 ::: J-wp3352.18.odt 11/26 consideration before the Deputy Charity Commissioner, Amravati.
23. Shri S.M. Ukey, learned Additional Government Pleader for the respondent No.1 supports the impugned order.
24. Learned Senior Counsel for the respondent Nos.2 and 3 would like to draw his support heavily from what has been held by the Constitution Bench of the Hon'ble Supreme Court of India in the case of Union of India etc. vs. Gopal Chandra Misra and others, reported in AIR 1978 SC 694 elaborating generally the concept of resignation. The Hon'ble Supreme Court has held that "resignation" in the dictionary sense, means the spontaneous relinquishment of once own right, it signifies the act of giving up or relinquishing the office or seizing to hold the office or losing hold of the office. The Hon'ble Supreme Court has further held that in the general juristic sense as well, the meaning of the term is no different. There also, as a rule both the intention to give up or relinquish the office and the co-terminus act of its relinquishment, are necessary to constitute a complete and operative resignation, although the act of relinquishment may take different forms or assume a unilateral or bilateral character depending upon the nature of the office and the conditions governing it. The Hon'ble Supreme Court also held that a complete and effective act of resigning office is one which severs the link of the resigner with his office and terminates his tenure. The relevant observations of the Hon'ble Apex Court, as they appear in paragraphs 24 ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:55:50 ::: J-wp3352.18.odt 12/26 to 26, are reproduced as below :
" 24. "Resignatio"' in the Dictionary sense, means the spontaneous relinquishment of one's own right. This is conveyed by the maxim : Resionatio est juris propii spontanea refutatio (See Earl Jowitt's Dictionary of English Law). In relation to an office, it connotes the act of giving up or relinquishing the office. To "relinquish an office' means to "cease to hold" the office, or to "loose hold of the office (cf.
Shorter Oxford Dictionary); and to "loose hold of office", implies to "detach", "unfasten", "undo or untie the binding knot or link" which holds one to the office and the obligations and privileges, that go with it.
25. In the general juristic sense, also, the meaning of "resigning office" is not different. There also, as a rule, both, the intention to give up or relinquish the office and the concomitant act of its relinquishment, are necessary to constitute a complete and operative resignation (see, e.g. American Jurisprudence, 2nd Edition, Volume 15A, page 80), although the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. Thus, resigning office necessarily involves relinquishment of the office, which implies cessation or termination of, or cutting asunder from the office. Indeed, the completion of the resignation and the vacation of the office, are the casual and effectual aspects of one and the same event.
26. From the above dissertation, it emerges that a complete and effective act of resigning office is one which severs the link of the resignor with his office and terminate its tenure. In the context of Article- 217(1), this test assumes the character of a decisive test, because the expression "resign his office"- the construction of which is under consideration - occurs in a Proviso which excepts or qualifies the substantive clause fixing the office-tenure of a Judge up to the age of 62 years."::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:55:50 ::: J-wp3352.18.odt 13/26
25. It is clear that the test for determining whether a resignation is complete and effective act is to ascertain the intention of the party to relinquish office and performance by it of the concomitant act of the relinquishment of the office. If both are seen to be present in the letter of resignation, the act of resignation would be complete and effective the moment it is submitted and received by the other party. However, if the resignation letter itself indicates the date from which it is to be effective, the resignation would be complete and would come into effect only on the date indicated in the resignation letter and till that time, the act of resignation being not complete, it could also be withdrawn by the resigner. This would not be so when no future date is given for resignation to take effect and in such a case completion of the resignation and the vacation of the office would be the acts forming one and the same event and in such a case, the cessation of all links with the office by the resignor would be complete, effective and irreversible immediately. It also becomes clear that the act of relinquishment of office may take different forms or assume unilateral or bilateral character, depending upon the nature of the office and the conditions governing it, as held by the Hon'ble Apex Court in paragraph 25 reproduced above. This would mean that even when the intention to resign is clear, the relinquishment of once own right spontaneously is also unequivocal and that there is also a concomitant act of the relinquishment, still, the character of the ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:55:50 ::: J-wp3352.18.odt 14/26 resignation tendered can possibly be affected by the nature of the office and the conditions governing it and these factors external to the act of relinquishment would decide as to whether or not the resignation has a unilateral or bilateral form. In case the resignation assumes unilateral character, there would be no difficulty for the resignation to take effect immediately on fulfillment of the two conditions i.e. intention to give up or relinquish the office and the concomitant act of its relinquishment, both taking place simultaneously. This would not be so if the resignation is found to be having a bilateral form because of the peculiarity of the office and the conditions regulating it.
26. These parameters now would have to be borne in mind while examining the nature of resignation letter dated 12.2.2010 (Exh.-12). Reading it, apparently, one gets an impression that it unequivocally conveys the intention of the petitioner to relinquish his office and simultaneously the intention is also effectuated by the actual act of relinquishment of office of the President while retaining the membership of the governing body by the petitioner. The tenor of this resignation letter, on the first blush, does indicate that there has been an expression of intention to resign and actual tendering of resignation, both as same event, without there being any rider of some future date from which the resignation would take effect. This would make, at least apparently, the resignation so tendered by the petitioner of his office of the President as ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:55:50 ::: J-wp3352.18.odt 15/26 an unilateral act and not bilateral obviating the need for its acceptance by the other party involved in the relinquishment. But, on a deeper consideration of the whole issue, the first impression so gathered vanishes compelling one to form a different opinion unhesitatingly and with clarity of mind.
27. The Hon'ble Supreme Court, in the case of Union of India etc. vs. Gopal Chandra Misra and others (supra) has held that there may be cases wherein the act of relinquishment may take different forms or assume unilateral or bilateral character, depending upon the nature of office and the conditions governing it. The nature of the office held by the petitioner here, one of the trustees of respondent No.2, had a unique position which made the relinquishment of the office in this case a bilateral act.
28. When a person accepts his appointment as a trustee, he enters into a fiduciary relationship with the Trust which he holds for the benefit of the beneficiaries and, therefore, it has been held by the Hon'ble Apex Court in the case of Sheikh Abdul Kayum and others vs. Alibhai and others, reported in AIR 1963 SC 309, that once such a relationship is created, it is against the interest of the society in general that such relationship should be allowed to be terminated unilaterally and that is the reason why the law does not permit renunciation of the duties and liabilities of the trustee or delegation by the trustee of his functions, ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:55:50 ::: J-wp3352.18.odt 16/26 except with the permission of the Court or of the beneficiary or by virtue of a special power in the instrument of trust or of necessity or in the regular course of business. The Hon'ble Apex Court further held that the rule against renunciation of the trust and also the rule against delegation by a trustee of his functions embodied in Sections 46 and 47 of the India Trusts Act though are not applicable to public or private religious or charitable endowments, these sections incorporating nothing more or less than the principles which have been applied to all Trusts in all countries, the principles so incorporated are required to be respected in matters concerning the affairs of the Trust. The relevant observations of the Hon'ble Apex Court appearing in paragraphs 16 and 17 are reproduced as under :
"16. There cannot, in our opinion, be any doubt about the correctness of the legal position that trustees cannot transfer their duties, functions, powers to some other body of men and create them trustees in their own place unless this is clearly permitted by the trust deed or agreed to by the entire body of beneficiaries. A person who is appointed a trustee is not bound to accept the trust; but having once entered upon the trust he cannot renounce the duties and liabilities except with the permission of the Court or with the consent of the beneficiaries or by the authority of the trust deed itself. Nor can a trustee delegate his office or any of his functions except in some specified cases. The rules against renunciation of the trust by a trustee and against delegation of his functions by a trustee are embodied, in respect of trusts to which the Indian Trusts Act applies, in sections 46 and 47 of that Act. These sections run thus :
"46. A trustee who has accepted the trust ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:55:50 ::: J-wp3352.18.odt 17/26 cannot afterwards renounce it except (a) with the permission of a principal Civil Court of Original Jurisdiction, or (b) if the beneficiary is competent to contract, with his consent, or (c) by virtue of a special power in the instrument of trust.
47. "A trustee cannot delegate his office or any of his duties either to a co-trustee or to a stranger, unless (a) the instrument of trust so provides, or (b) the delegation is in the regular course of business or (c) the delegation is necessary, or
(d) the beneficiary, being competent to contract, consents to the delegation.
17. It is true that section1 of the Indian Trusts Act makes provisions of the Act inapplicable to public or private religious or charitable endowments; and so, these sections may not in terms apply to the trust now in question. These sections however embody nothing more or less than the principles which have been applied to all trusts in all countries. The principle of the rule against delegation with which we are concerned in the present case, is clear; a fiduciary relationship having been created, it is against the interest of society in general that such relationship should be allowed to be terminated unilaterally. That is why the law does not permit delegation by a trustee of his functions, except in cases of necessity or with the consent of the beneficiary or the authority of the trust deed itself; apart from delegation "in the regular course of business", that is, all such functions which a prudent man of business would ordinarily delegate in connection with his own affairs."
29. Going by the law so laid down by the Hon'ble Apex Court in the above referred case, one has to find here that the office held by the President being that of a trustee signifies fiduciary relationship between the petitioner and the Trust, and, therefore, it would be against the interest of the society in general that such relationship is allowed to be ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:55:50 ::: J-wp3352.18.odt 18/26 terminated unilaterally.
30. As a matter of record, I may say, the aforestated principle of law has also been followed by the Division Bench of this Court in the case of Khojeste Mistree and others vs. Bombay Parsi Punchayet, Mumbai and others, reported in 2008(5) Mh.L.J. 330, when it held that acceptance of the resignations submitted by some of the trustees was necessary and before resignations were accepted there were withdrawals of the resignations as well and, therefore, the revocation of the resignations submitted were complete in terms of Sections 3 and 4 of the Indian Contract Act rendering the resignations as of no consequence. There were also other reasons for the Division Bench of this Court to take such a view. But, they being based upon the facts peculiar to that case, would not concern us, though the fact remains, following the principle of law laid down by the Hon'ble Supreme Court in the aforestated case of Sheikh Abdul Kayum and others (supra), the Division Bench of this Court treated the resignations involved in the case before it as bilateral.
31. In the present case, admittedly, there is neither any provision in the constitution of the Trust nor the M.P.T. Act governing the issue of vacation of the office of the President of the Trust by resignation. There is also no question of any permission having been granted by the Civil Court. Therefore, character of the resignation dated 12.2.2010 submitted by the petitioner relinquishing his office of the President of the ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:55:50 ::: J-wp3352.18.odt 19/26 Trust, in this case, would have to be determined by the law of the land and also the conduct of the parties. As clarified earlier, the petitioner, a trustee was in a fiduciary relationship with respondent No.2 and, therefore, as held in the case of Shaikh Abdul Kayum (supra) by Hon'ble Supreme Court, it would be against the general interest of society that the relationship is allowed to be terminated unilaterally. It would then follow that the resignation given by the petitioner assumed bilateral character requiring it to be accepted by the governing body and the general body, the final authority for deciding all matters as per the constitution of the Trust. This would also show that to the present case, provisions of Sections 3 and 4 of the Indian Contract Act governing the acceptance and revocation of proposals would be applicable. They are reproduced, for the sake of convenience, as under :
"3. Communication, acceptance and revocation of proposals. - The communication of proposals, the acceptance of proposals, and the revocation of proposals and acceptances, respectively, are deemed to be made by any act or omission of the party proposing, accepting or revoking by which he intends to communicate such proposal, acceptance or revocation, or which has the effect of communicating it."
"4. Communication when complete. - The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made.
The communication of an acceptance is complete, -::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:55:50 ::: J-wp3352.18.odt 20/26
as against the proposer, when it is put in a course of transmission to him, so as to be out of the power of the acceptor;
as against the acceptor, when it comes to the knowledge of the proposer.
The communication of a revocation is complete, - as against the person who makes it, when it is put into a course of transmission to the person to whom it is made, so as to be out of the power of the person who makes it; as against the person to whom it is made, when it comes to his knowledge."
32. Apart from what is stated above, here the conduct of the respondent Nos.2 and 3 also showed that they treated the resignation as a bilateral issue requiring on the part of the governing body and general body it's acceptance and that was the reason why the governing body met and passed resolution of acceptance subject to confirmation by general body on 25.2.2010.
33. There was however, another turn of event. Before the resignation letter was discussed and accepted by the governing body, the petitioner by his letter dated 12.2.2010, which was received by the then Secretary to the respondent No.2 Trust on 23.2.2010, withdrew his resignation tendered on 19.2.2010, thereby nullifying the effect of the resignation. The subject of acceptance or otherwise of the resignation of the petitioner came up for discussion before the governing body of the respondent No.2 in its meeting held on 12.2.2010. But, in that meeting, ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:55:51 ::: J-wp3352.18.odt 21/26 the subsequent act of withdrawing the resignation was never brought to the notice of the governing body and therefore, governing body had no occasion to apply its mind to the whole issue and decide as to whether or not there was a valid revocation of the proposal of resignation submitted by the petitioner before its acceptance in terms of Sections 3 and 4 of the Indian Contract Act. Such a resolution, based upon incomplete facts, as rightly submitted by the learned counsel for the petitioner is no resolution in the eye of law and, therefore, the resolution brought about no valid change to the constitution of the governing body w.e.f. 25.2.2010. Even otherwise, there was no resignation submitted and having remained alive for its being accepted by the governing body as it was already revoked by the petitioner well before the governing body took up the subject for its consideration.
34. So, this is a case wherein the resignation tendered by the petitioner vacating the office of President of the Trust had assumed bilateral from and it came to be withdrawn by him well before it took its effect by its acceptance by the governing body. That apart, there has also not been acceptance of the resignation by the general body in the present case, which it appears from the constitution of the Trust to be so necessary, with the general body having been conferred with final authority for deciding all matters concerning the affairs of the Trust. This is an additional reason enabling me to say that in the present case ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:55:51 ::: J-wp3352.18.odt 22/26 the resignation submitted by the petitioner having been withdrawn by him well in time never became complete and effective so as to severe the links of the petitioner with the office of the president forever and irreversibly. Similar is the view taken by the learned single Judge of this Court in another case of Jain Social Group, Nashik and another vs. Jain Social Groups International Federation and others, reported in 2015 SCC OnLine Bom. 5615 involving the same issue of submission of the resignation and its subsequent withdrawal by the trustee.
35. As regards the conduct of the petitioner in suppressing the fact of his filing a civil suit, I must say that even though the petitioner has not mentioned in this petition anything about his filing of the civil suit, the petitioner has disclosed this fact in clear terms in the written objection that he took to the Change Report bearing Enquiry No.986/2013 initially pending before the Deputy Charity Commissioner, Amravati which was later on decided by the Assistant Charity Commissioner, Amravati. Besides, the relief claimed in this petition is about restoration of the order dated 29.4.2017 passed by the Assistant Charity Commissioner, Amravati rejecting the Change Report bearing Enquiry No.986/2013, which is different from the reliefs claimed in the Regular Civil Suit No.45/2010. The reliefs claimed in the suit seek - a declaration that the resignation dated 12.2.2010 was procured by the respondent No.2 by coercion and unfair means, a further declaration to ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:55:51 ::: J-wp3352.18.odt 23/26 the effect that no meeting was held and no business was transacted on 25.2.2010 and also an injunction against the respondent Nos.2 and 3 restraining them from ousting or removing the petitioner from the office of the President. These issues, in any case could not have been decided in an Inquiry held under Section 22 of the M.P.T. Act by the Assistant Charity Commissioner. But, the petitioner did bring it to the notice of the Assistant Charity Commissioner the fact of filing of the civil suit seeking such reliefs. Here in this petition, the petitioner, however, has not disclosed anything about this fact by incorporating it by way of a pleading. But, the reliefs claimed in the petition being different from the reliefs claimed in the Civil suit and also considering the fact that the copy of the written objection filed by the petitioner before the Assistant Charity Commissioner has been annexed to the petition, I am of the view that there is no suppression of a material fact which if disclosed by way of an averment in the writ petition, would have had the potential of influencing the final decision one way or the other. The argument of learned Senior Counsel for the respondent Nos.2 and 3 made in this behalf is, therefore, rejected.
36. It is true that much water has flown from under the bridge after the resignation of the petitioner vacating his office of the President was accepted in February, 2010 by the governing body as three elections for constituting governing body for a term of three years each were held ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:55:51 ::: J-wp3352.18.odt 24/26 in May 2013, August 2016 and April 2017. It is also true that the Change Reports filed in respect of these elections are pending for decision with the Deputy Charity Commissioner or Assistant Charity Commissioner, Amravati. But, these subsequent events, in my considered view, would not render the issue involved in this petition as of purely academic nature. After all, as per the constitution of the Trust, the President is the executive head of the Trust and has been invested with various rights and powers including right to preside over all the meetings of the Trust and of the governing body and also to call a general meeting of the Trust. If a President has been removed from the office illegally, as in the present case, it would have its own impact on all the future acts of the Trust which would require due consideration in accordance with law by the competent authority. Therefore, this is not a case wherein one can say that the issue involved in this petition has only turned academic. That apart, even the respondent No.2 Trust does not treat the issue as academic or otherwise it would not have chosen to file an appeal in the year 2017 under Section 70 of the Maharashtra Public Trusts Act before the Joint Charity Commissioner challenging the decision of Assistant Charity Commissioner dated 29.4.2017. The argument of learned Senior Counsel for the respondent Nos.2 and 3 made in this regard is therefore, rejected.
37. In the result, I am inclined to answer the question in terms ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:55:51 ::: J-wp3352.18.odt 25/26 that the resignation dated 12.2.2010 submitted by the petitioner vacating the office of the President of the Trust was not unilateral but was bilateral in character and, therefore, it did not take immediate effect and was dependent for it to take effect upon the acceptance by the respondent No.2 Trust and that this resignation was validly withdrawn by the petitioner well before it was accepted by the respondent No.2 Trust and as such there was no resignation of the office of the President in existence, which could have been appropriately considered by the governing body in its meeting held on 25.2.2010. Consequently, I also find that the resolution passed by the governing body of the respondent No.2 Trust on 25.2.2010 accepting the resignation was illegal and its witnessed no change in the constitution of the then governing council.
38. All these aspects of the matter have been rightly considered by the learned Assistant Charity Commissioner, but somehow or the other, were missed by the learned Joint Charity Commissioner resulting in a view taken by him which was patently contrary to law, warranting interference with it.
39. In the circumstances, the writ petition is allowed.
40. The impugned order dated 3.4.2018 passed by the Joint Charity Commissioner is hereby quashed and set aside and the order of the Assistant Charity Commissioner dated 29.4.2017 is restored and confirmed.
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41. Rule is made absolute in the above terms. No costs.
JUDGE At this stage, the learned Counsel for respondent Nos.2 & 3 makes a request for staying the effect and operation of this order for a period of eight weeks as the respondents have been intending to challenge the order. He also submits that now that the new body is already in power and, therefore, grant of stay for a temporary period of time would not adversely affect the interest of the petitioner. The prayer is opposed by the learned Counsel for the petitioner.
However, the submission made on behalf of the petitioner deserves consideration especially when any temporary stay is not going to prejudicially affect the right of the petitioner in view of the new development.
Accordingly, the effect and operation of this order is stayed for a period of six weeks from the date of the order.
JUDGE okMksns ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:55:51 :::