Bombay High Court
Nathmal Kisanlalji Goenka And Anr. vs Asstt. Charity Commissioner And Anr. on 2 November, 1993
Equivalent citations: (1994)96BOMLR970
JUDGMENT B.U. Wahane, J.
1. By this petition, the petitioners who are the members of the Berar Education Society, Akola, sought modification to the Judgment dated 22.7,1993 passed by the Asstt. Charity Commissioner, Akola, in Inquiry No. 346 of 1992 and direction to the Executive Committee of the respondent No. 2 Society, to hold the election by the secret ballot and secondly that the respondent N. 2 Society should hold the election programme afresh and not on the basis of the nominations which were for the election which was proposed to be held on 13th August, 1989.
2. The respondent No, 2 is the Society registered under the Societies Registration Act and also under the Bombay Public Trusts Act. The respondent No. 2 Society is running schools and colleges in Akola District. The grievance of the petitioners is very limited. According to the petitioners, since 1980, no elections are held by the Management of the Society and, therefore, members approached the Assistance Charity Commissioner, Akola, for a direction to the respondent No. 2 to hold the election and that too by secret ballot papers. The learned Assistant Charity Commissioner, Akola, partly allowed the application filed under Section 41-A of the Bombay Public Trusts Act, directing the respondent No. 2 to hold the elections within three months from the date of the order. However, the prayer to hold the election by secret ballot, was rejected. Therefore, the petitioners have filed the instant petition.
3. Shri Mohan Deshpande, the learned Counsel for the respondent No. 2, vehemently opposed the submissions of Shri Mehadia, the learned Counsel for the petitioners, on various grounds. Firstly, it is submitted by the learned Counsel for the respondent No. 2 that provisions of Section 41 -A of the Bombay Public Trusts Act, 1950, does not provide the directions for the election. My attention was drawn to the case of Lahudas Sambhuji Karad v. State of Maharashtra and Ors. . After going through the Judgment of the case cited supra, I am of the opinion that there is no substance in the submissions made by the learned Counsel for the respondent* No. 2.
4. Section 41-A is introduced by the Maharashtra Act V of 1985 with effect from 1.8.1985. Amendments made to the Bombay Public Trusts Act, Maharashtra Act V of 1985 provide elaborate provisions regarding the stages that may be taken to prevent the loss of mismanagement in the affairs of the Public Trust.
Section 41-A of Bombay Public Trusts Act, 1950, reads as under :
41-A. Power of Commissioner to issue directions for the proper administration of the trust. - (1) Subject to the provisions of this Act, the Charity Commissioner may from time to time issue directions to any trustee of a public trust or any person connected therewith, to ensure that the trust is properly administered and the income thereof is properly accounted for or duly appropriated and applied to the objects and for the purposes of the trust; and the Charity Commissioner may also give directions to the trustees or such person if he finds that any property of the trust is in danger of being wasted, damaged, alienated or wrongfully sold, removed or disposed of.
(2) It shall be the duty of every trustee or of such person to comply with the directions issued under Sub-section (1).
Prior to the amendment of Section 41-A, even if it has been brought to the notice of the Charity Commissioner or if he learnt otherwise that either a public trust is mismanaged or is not managed properly or that the income of the said Trust was not properly accounted for, he was helpless as there was no power conferred upon the Charity Commissioner to prevent any loss being caused to the Public Trust or to prevent any Public Trust being mismanaged or to give any direction to the trustee or any other person connected with the said Trust to administer the said Public Trust in accordance with the object of the said Trust or to see that the income of the Public Trust was duly accounted for. The Act provides very elaborate provisions regarding the steps that may be taken in case of the acts of mismanagement or the loss caused to the Public Trust by the trustees of the said Trust. The elaborate provisions have been provided either under Section 40, 41 or 50 of the said Act but the recourse to the above sections could be taken only after the loss or mismanagement has been caused. There was, therefore, no provision under the Act, empowering the Charity Commissioner to prevent such loss or mismanagement. The Charity Commissioner was empowered to issue directions or adjudicate the matters falling under Sections 32 to 41 of the Bombay Public Trusts Act, 1950. These sections provide for proper administration of the public trust or proper accounting or appropriate application of the income of the trust to the objects of the said trust. Section 41-A, therefore, does not contemplate any adjudication and is, therefore, not subject to the rules of natural justice and obviously those directions are not appealable nor could be questioned under Section 72 of the Bombay Public Trusts Act. They are not in the nature of quasi-judicial directions. Such directions could be issued to the trustees or any person connected with the trust and every trustee or a person to whom such directions are issued is bound to comply with them under Section 41-A(2) of the said Act.
5. The underlying idea of Section 41-A of the Act is that those directions should relate only to
(a) proper administration of a public trust, or
(b) for proper accounting of its income, or
(c) for appropriate application of the income to the objects of the said trust.
This would show that the main safeguards that have to be kept In mind by the Charity Commissioner or the Joint Charity Commissioner are in respect of the property and other affairs of Society. If there is negligence in the Management or maladministration of the affairs of the Society, directions could be issued under Section 41-A of the Act, including that of election. Section 41-A does not contemplate any adjudication on any subjects. This section gives powers to the Charity Commissioner/Joint Charity Commissioner only to issue directions to any trustee pr any person connected with the trust. The directions are intended to be issued for better and more effective administration of a public trust. No question of adjudication of any controversy or dispute arises thereunder. The object of Section 41-A, as discussed earlier, is to streamline the administration of public trusts and to ensure more effective implementation and enforcement of the provisions of the said Act, Under Section 41-A, direction may be issued to any trustee or any person connected with the trust. Considering the object and purpose of the amendment to Section 41-A, the Charity Commissioner is also empowered to issue directions to the trustee to hold election in the interest of administration and proper management of the Trust. In the case of Lahudas Karad (supra) my learned brother in para 7 referred the Writ Petition No. 1304/92 decided on 17.2.1992 upholding the powers of the Joint Charity Commissioner to issue the directions to hold the elections. Para 7 is reproduced as under:
The learned Joint Charity Commissioner, after detailed consideration of the affidavits and other documents, came to the conclusion that the Governing Council should hold fresh elections and that the respondent President should withdraw the said advertisement dated 17,8.1991 and also the letters written to the Director of Education and Marathwada University. The petitioner in W. P. No. 1304/92 challenged the decision in Writ Petition No. 3878/1991 and this Court in its Judgment dated 17th February, 1992, upheld the power of the power of the Joint Charity Commissioner to issue the directions as indicated in his above order dated 25.9.1991 and dismissed the writ petition with direction that the election programme should be fixed within two weeks.
In the case cited supra, the only question before the learned Court was that once the election process is commenced, whether the Charity Commissioner/Assistant Charity Commissioner has powers to interfere with the process of election, set in motion, by issuing different directions? My learned brother Mr. Justice Halbe, has observed that under Section 41-A if the Bombay Public Trusts Act, 1950 the Joint Charity Commissioner has no powers to interfere with the process of election of the Governing Council of the Public Trust, already set in motion. I am also of the same view.
6. The various surprising and shocking circumstances have been brought to my notice by Shri Mehadia, the learned Counsel for the petitioner which are narrated as follows :
Admittedly, since 1980 no election has been held. The constitution of the Berar General Education Society, Akola is on record, which speaks about the tenure of the office - bearers. The office-bearer of the Society i.e. the Executive Committee of the Society shall ordinarily hold office for a period of 3 years and they will retire automatically after that period and the fresh election shall take place.
In spite of specific provisions mentioned in Clause 11 of the Constitution of the Society, no election had taken place since 1980. As also no efforts were made to hold election of the office-bearers of the Society after expiry of three years as contemplated in Clause 11 of the Constitution of the Society. Shri Mehadia, the learned Counsel for the petitioner submitted at Bar that there is no President, Vice-President, Joint Secretary and no full quorum of the members. According to the Constitution of the Society, the total strength of the executive committee is 25, Out of them, 19 are elected members, 5 ex- officio principals of the Colleges and Schools and one is co-opted.
The President of the Society expired in September, 1993. The Vice-President Shri Nandmal Goenka resigned 7 or 8 years back. The other Vice-President Shri Vishnu died sometime in the year 1988, the Joint Secretary Shri R. A. Modi also resigned long back. Six members of the Executive Committee also resigned long back. It is also brought to my notice that one member viz. Lalchand died long back.
Clause 12 of the Constitution of the Society provides that :
If the President, Vice-President or the Secretary of the Society for the time being, resigns his office or becomes incapacitated for any reason for continuing to act as President, Vice-President or Secretary, as the case may be, or dies during the period of his office, a special meeting of the General Body shall be convened within one month of the date of such contingency, for the purpose of electing a new President, Vice-President or Secretary for the residue of the period of three years.
A query was made to the learned Counsel of the respondents that whether in view of Clause 12 of the Constitution of the Society, after the death of the President, two Vice-Presidents, Joint Secretary and other members, any special meeting of the General Body was convened and the President, two Vice-Presidents and Joint Secretary were elected? A fair reply was that no such meeting was convened at any time. No justification to justify the laches or lapses has been assigned. Therefore, the only irresistible inference could be deduced that the Secretary who is managing the affairs of Society desired or intended to continue in the office of the Secretary as a monarch of the Society and manage the affairs of the Society according to his wish and Will.
7. Sometime in the year 1989 because of the constant demand, the election programme was published by the respondent No. 2 - the Secretary of the Society. However, there being some defects in the programme and the list of the trustees, there was a litigation and, therefore, there was no election.
8. Thereafter, no efforts were made to hold fresh election. The petitioners approached the Assistant Charity Commissioner, Akola filing an application under Section 41-A of the Bombay Public Trusts Act, seeking directions for holding election and that too by secret ballot papers. The application was opposed by the respondent No, 2. However, after hearing the parties the learned Assistant Charity Commissioner issued directions to the respondent No. 2 to hold the fresh election but the prayer regarding the secret ballot was rejected.
9. In pursuance of the directions issued by the Assistant Charity Commissioner, Akola, the fresh programme regarding election was published by the respondent No. 2 in daily Newspaper "Matrubhumi" dated 28.8.1993 published from Akola." It was published that the fresh election is being held on 17.10.1993. However, no intimation was given to the individual members of the Society. Similarly, no election programme was published either in the newspaper or placed on the notice board of the office of the Society. On the contrary, it has been transpired that persons who had submitted their nomination forms for the election which was proposed to be held on 13.8.1989 are treated as valid nominees even for the election to be held on 17.10.1993. Some trustees who had submitted nominations for the election of 1989 have expired. Such a queer and unheard patently illegal procedure has been adopted by the respondent No. 2, with all designs to remain as Secretary. Adoption of such illegal procedure, is patently mala fide. It was adopted with an oblique motive that trustees would definitely challenge the process and procedure and obtain stay and thereby he would continue to enjoy the post of Secretary and mange the affairs of the Society. A query was made, under what provisions of the Constitution of the Society or any other precedents, such procedure or process of holding election treating nominations filed about 4 years back can be considered valid for the fresh election? No reply came forward. This being a patent illegality deliberately committed, it is but natural that the member/members of the society bound to knock the doors of the Court. From this circumstance, as also discussed in the preceding paras, it is crystal clear that the respondent No. 2 is not interested at all in holding the fresh election. Apparently, the respondent No. 2 wants to enjoy the post of Secretary, probably wants to enjoy and to maintain the affairs of the Society till his last breath and, therefore, he adopted not only illegal but strange and shocking procedure of election.
10. Shri Deshpande, the learned Counsel for the respondent No. 2 submitted that the respondent No. 2 expressed before the Joint Charity Commissioner, Akola that he is interested to hold the election as early as possible. However, from the facts discussed above since 1980, in spite of the death of the President, two Vice-Presidents, Joint Secretary and resignations by various members and though there are specific provisions in the constitution of the Society to elect new members in their place, no efforts have been made by the respondent No. 2 fill up those posts but continued himself as Secretary as a monarch of the Society. Therefore, from the facts and circumstances I do not find any bonafides in the words of the respondent No. 2 that he was and is interested to hold the fair elections in accordance with law.
Keeping in view the facts and circumstances as well as the conduct of the respondent No. 2, though the Assistant Charity Commissioner, Nagpur, directed the respondent No. 2 to hold the election, according to me, the respondent No. 2 is not in a position to play fair role while issuing election programme and also during the process of election. Therefore, I direct the Assistant Charity Commissioner, Akola to hold the election of the Society through his representative or agent following the due procedure of elections. The election must be held before 31st December, 1993, through his agency. The respondent No. 2 is directed to extend his active co-operation to the Election Officer appointed by the Assistant Charity Commissioner, Akola and its staff. In case the respondent No, 2 is not in a position to extend his active assistance and co-operation to the Election Officer, due to heart trouble as informed at bar, he shall depute any of his trustees to extend active assistance and co-operation to Election Officer. The respondent No. 2 is directed to supply all the relevant papers, list of the trustees etc. The expenses of the election will be borne by the Society.
11. The demand of petitioners to hold the election of the Society by secret ballot has been vehemently opposed by the respondent No. 2. However, considering the strength of the members, totalling about 212, no satisfactory reasons have been assigned why the respondent No. 2 does not want the election to be held by secret ballot. It is to be noted that out of 212 members of the society, about 48 trustees are the employees either in the Schools or Colleges. It needs no mention that wherever there are large numbers of members, the process of election is held by secret ballot. This system is now accepted universally which ensures secrecy. Similarly, to elect 19 members of the Executive, it is not practical to raise hands while announcing the name of the candidates for the post. The elections must be free and fair. Then only there would be true representatives of the people in the society. This method of secret ballot is created to enable the members to form opinion about merits and demerits of the candidates contesting for the executive committee and to exercise their choice freely in accordance with such opinion. In case the election is allowed to be held by raising hands, naturally there being 48 employees in the Society, there is likelihood of some pressure on them and thereby there will be no free and fair election. Considering these aspects, as the secret ballot system is being universally adopted, considering the large strength of the members and majority of them being the employees, as also there being no election since 1980 and the respondent No. 2 is managing the society as the monarch of the society, I allows the prayer of the petitioners that the election be held by secret ballots.
I have given to this case my most anxious attention considering the importance of election for the just management and administration of the affair of the Society. I have weighed every fact, considered every aspect of the case including the conduct and attitude of the respondent No. 2.1 accept the fair proposal of secret ballot, I direct the Election Officer to hold election by secret ballots.
12. In the result, the petition is allowed. The respondent No. 1 is directed to hold the election according to law through his agency before 31.12.1993 by secret ballot. The respondent No. 2 is directed to assist and extend his active co-operation to the Election Officer. In case, he is indisposed of due to his illness, he has to appoint and entrust his duty to a trustee in whom he repose confidence. The respondent No. 2 is further directed to supply all the relevant material and documents to the Election Officer. The expenses of the election will be borne by the Society. The costs of this petition to the tune of Rs. 1,000/- is saddled on Shri Bhaskar Vithhal Deshmukh, the present Secretary of the Berar General Education Society, Akola - the respondent No. 2.