Bombay High Court
Karishnarao Kanhaiya Naidu vs Jeevraj Bhairavlal Agrawal on 21 November, 2009
Author: C. L. Pangarkar
Bench: C. L. Pangarkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR
BENCH NAGPUR.
WRIT PETITION NO. 2956 OF 1997
1. Karishnarao Kanhaiya Naidu,
aged 48 yrs. Occu. Business,
R/o Surana Building, Sadar
Bazar Nagpur.
2. Shyam Mimraj Agrawal,
aged 38 yrs. Occu. Business,
R/o Plot No. 30 Wardhaman Nagar
Nagpur.
3. Umesh Kumar Agrawal,
aged 44 yrs. Occu. Business,
R/o 16, Ghat Road, Nagpur.
4. Manmohan Maniklal Chandak,
aged 35 yrs., Occu. Business,
R/o Kalar Line, Sitabuldi Nagpur.
5. Ramkrishna Ramnarayan Zargar,
aged 35 yrs., Occu. Business,
R/o 495, Tekdi Road, Sitabuldi
Nagpur.
6. Kamlakar Rajhans Mahakalkar,
aged 42 yrs., Occu. Business,
R/o Reshimbagh Nagpur.
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7. Rewashankar Sarma,
aged 72 yrs. Occu. Business,
R/o Tekdi Road, Sitabuldi,
Nagpur. PETITIONERS.
VERSUS
1. Jeevraj Bhairavlal Agrawal,
aged 651 yrs., Occu. Business,
R/o Pitru Chhaya, Jawahar
Chowk, Sadar, Nagpur.
2. Madhav Ramdas Kohle,
R/o Koshtipura, Sitabuldi,
Nagpur.
3. Shrikrishna Gangadhar Kavishwar
C/o Ganesh Mandir, Tekdi,
Nagpur.
4. Vijay Govindrao Mudliar,
c/o Ganesh Mandir, Tekdi, Nagpur.
5. Shashikant Gangadhar Sathe,
C/o Ganesh Mandir, Tekdi, nagpur.
6. Mahadeo Sakharam Harde,
R/o Mahal, Nagpur. (Dead).
7. Ganpat Govindrao Joshi,
C/o Ganesh Temple, Tekdi,
Nagpur.
8. Dilip Manoharrao Sahakar,
R/o Bhaji Mandi, Sitabuldi,
Nagpur.
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9. Girish Kumar Tiwari,
C/o Ganesh Temple, Tekdi,
Sitabuldi, Nagpur.
10. Shriram Sukhram Vaidya,
aged 68 yrs., Occu. Social Worker,
R/o Cotton Market Sitabuldi,
Nagpur.
11. A. D. Kulkarni, aged 50 yrs.
Occu. Service, R/o 736,
Behind Narayan Bhandar,
Dharampeth, Nagpur.
12. The Election Officer-
Sanjay Jagtap, Advocate,
C/o Advisory Society of Ganesh
Temple, Sitabuldi, Nagpur.
13. The Joint Charity Commissioner,
Nagpur Region, Nagpur.
14. The Ganesh Mandir, Tekdi,
Nagpur (A Public Trust Registered)
under its Adhoc Committee Thr.
Its Member -
Pundlikrao Jounjal, aged 68 yrs.,
Occu. Business, R/o Cotton Merchant,
Cotton Market, Nagpur. RESPONDENTS.
15. Rajendra Narayan Barai
aged Adult. INTERVENOR.
Shri. R. L. Khapre, Counsel for the petitioners.
Shri. S. V. Manohar , Counsel for the respondents.
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CORAM: C. L. PANGARKAR J.
Date: 21st NOVEMBER 2009.
ORAL JUDGMENT:
By this Writ Petition the petitioners challenge the orders passed by the Deputy Charity Commissioner and Joint Charity Commissioner whereby Change Report No. 984 of 1995 was rejected.
2. The facts giving rise to the Writ Petition are as follows:
The story begins with an action in contempt against Ganpat Joshi, Mahadeo Harde, Shashikant Sathe and P. B. Berad in Contempt Petition no. 52 of 1994. This Court on 13.12.1994 directed the Deputy Charity Commissioner to remove Ganpat Joshi, Mahadeo Harade and Shashikant Sathe from the trusteeship.
Accordingly in enquiry Deputy Charity Commissioner passed an order on 19.01.1995 removing these three persons from trusteeship.::: Downloaded on - 09/06/2013 15:20:06 ::: 5
A Change Report No. 316 of 1995 was filed on 31.01.1995 alleging that elections were held on 08.01.1995 and therefore change has occurred. This change was filed by one Arvind Joshi. This change report was rejected on 20.04.1995 and adhoc committee was directed to continued to manage the trust by order dated 12.03.1995. The adhoc committee was reconstituted by appointing D. R. Lohia, Ramesh Sawal, M. B. Nanoti, Lakhichand Dhoble and Kisangopal Gandhi. This Committee was directed to hold elections to manage the trust. Accordingly elections for new managing committee are said to be held on 20.08.1995 and Change Report No. 984 of 1995 is filed. It is this report which is rejected by the Deputy Charity Commissioner, which order was confirmed by the Joint Charity Commissioner.
3. The main grounds upon which the change report was rejected were the enrollment of members in breach of the Resolution passed by the trust and the scheme of the trust and illegal meetings dated 14.03.1995 and 26.03.1995.
::: Downloaded on - 09/06/2013 15:20:06 ::: 64. I have heard Shri Khapre and Shri Manohar learned counsel for petitioners and the respondents. Shri Khapre learned counsel for the petitioners submits that elections were valid and 78 members who were enrolled were infact legally enrolled. His main thrust of the argument was that any person paying a sum of Rs.
250/- and who is Hindu becomes a member and there is no need of ratification or acceptance of membership of such person by managing committee. He invites my attention to the scheme. The dispute relates to members in sympathisers category. Clause IV defines a sympathiser as follows:
"SYMPATHISERS:
Any Hindu who pays Rs.5/- per month for a period of 50 months will become sympathiser member of the temple and it is hereby made clear that he will attain the status only after, the amount of Rs. 250/- is paid by him fully, and not till then."
Shri Khapre submits that Clause if read as it is only envisages the applicant being Hindu and he paying Rs. 250/-.
According to him there is no requirement under this clause of ::: Downloaded on - 09/06/2013 15:20:06 ::: 7 approval of the membership. He also submits that the Court cannot read something which is not there in this Clause to hold that managing committee should approve the enrollment. Some other aspects need to be seen before validity of enrollment can be judged.
5. Shri Manohar learned counsel submits that enrollment was invalid for many reasons. First, there was a Resolution not to enroll the members, second, that Resolution is not superseded, third, the meeting approving such enrollment was invalid, fourth, a person can become sympathiser member only when he pays Rs.5/-
every month for 50 months and he acquires such status upon payment of last or 50th installment, and fifth, there is already a decision of Deputy Charity Commissioner that enrollment of 78 members is invalid in Enquiry No. 8 of 1991.
6. I shall first deal with Shri Khapre's argument with regard to necessity or otherwise of approval of such enrollment of new members. No doubt there is nothing in the Rule suggesting that enrollment of new members is to be approved by managing ::: Downloaded on - 09/06/2013 15:20:06 ::: 8 committee. The contention however cannot be accepted. Simply because somebody pays a sum of money, he cannot become a member and he cannot foist his membership on those who desire not to be associated with him. If the argument of Shri Khapre is to be accepted then any characterless person or person with criminal background can become member of the trust and can spoil the trust. Even a hardened criminal may say that I am a Hindu and I have paid sum of Rs.250/- and I should be accepted as a member. Is body of trust bound to accept him even as a member? The answer has to be in the negative. The Supreme Court in a decision reported in Smt. Damayanti Narang Vs. The Union of India and others AIR 1971 Supreme Court 966 has observed as follows:
"It was argued that the right guaranteed by Article 19 (1)(c) is o0nly to form an association and, consequently, any regulation of the affairs of the Association, after it has been formed, will not amount to a breach of that right. It is true that it has been held by this Court that, after an Association has been formed and the right under Article 19(1)(c) has been exercised by the members forming it, they have no right to claim that its activities must also be permitted to be carried on in the manner they desire, Those cases ::: Downloaded on - 09/06/2013 15:20:06 ::: 9 are, however, in applicable to the present case. The Act does not merely regulate the administration of the affairs of the Society, what it does is to alter the composition of the Society itself as we have indicated above. The result of this change in composition is that the members, who voluntarily formed the Association, are now compelled to act in that Association with other members who have been imposed as members by the Act and in whose admission to membership they had no say. Such alteration in the composition of the Association itself clearly interferes with the right to continue to function as members of the Association which was voluntarily formed by the original founders. The right to form an association, in our opinion, necessarily implies that the persons forming the Association have also the right to continue to be associated with only those whom they voluntarily admit in the Association. Any law, by which members are introduced in the Voluntary Association without any option being given to the members to keep them out, or any law which takes away the membership of those who have voluntarily joined it, will be a law violating the right to form an association. If we were to accept the submission that the right guaranteed by Art. 19(1)(c) is confined to the initial stage of forming and Association and does not protect the right to continue the Association with the membership either chosen by the founders of regulated b y rules made by the Association itself, the right would be meaningless because as soon as an Association is formed, a law may be passed interfering with its ::: Downloaded on - 09/06/2013 15:20:06 ::: 10 composition, so that the Association formed may not be able to function at all. The right can be effective only if it is held to include within it the right to continue the Association with its composition as voluntarily agreed upon by the persons forming the Association. This aspect was recognised by this Court, though not in plain words, in the case of G. K. Ghoseh v. E. X. Joseph (1963) Supp 1 SCR 789 = (AIR 1963 SC 812). The Court, in that case was considering the validity of Rule 4-B of the Central Civil Services (Conduct) Rules 1955, which laid down that:
"No Government servant shall join or continue to be a member of any Service Association of Government servants:
(a) which has not, within a period of six months from its formation obtained the recognition of the Government under the Rules prescribed in that behalf, or
(b) recognition in respect of which has been refused or withdrawn by the Government under the said Rules".
This Court held:-
"It is not disputed that the fundamental rights guaranteed by Article 19 can b e claimed by Government servants. Article 33 which confers power on the Parliament to modify the rights in their application to the Armed Forces, clearly brings out the fact that all citizens, including ::: Downloaded on - 09/06/2013 15:20:06 ::: 11 Government servants, are entitled to claim the rights guaranteed buy Article 19. Thus, the validity of the impugned rule has to be judged on the basis that the respondent and his co-employees are entitled to form Association s or Unions. It is clear that Rule 4-B imposes a restriction this right. It virtually compels a Government servant to withdraw his membership of the Service Association of Government Servants as soon as recognition accorded to the said Association is withdrawn or if, after the Association is formed, no recognition is according to it within six months. In other words, the right to form an Association is conditioned by the existence of the recognition of the said Association by the Government. If the Association obtains the recognition and continues to enjoy it, Government servants can become members of the said Association; if the Association does not secure recognition from the Government or recognition granted to it is withdrawn, Government servants must cease to be the members of the said Association . That is the plain effect of the impugned rule".
The Court in the above passage, thus accepted the principle that the Government servants, who may have formed an Association, could not be compelled to resign from it by imposition of a condition of recognition of this Association by the Government and that if the Government servants are required to cease to be members, that would be a violation of the right under Article 19(1)(c). The Court, of course, in that case, further proceeded to examine whether ::: Downloaded on - 09/06/2013 15:20:06 ::: 12 such a restriction on the right could be justified under Article 19(4) or not. That case, thus, supports out view that the right to form an Association includes the right to its continuance and any law altering the composition of the Association compulsorily will be a breach of the right to form the Association."
7. Shri Khapre made a submission that this decision has no bearing on the case at hand. He submits that the trust is in respect of a temple or an idol and idol holds the property. He submits that therefore there is no question of anybody being associated or dis-
associated with the trust. Argument has to be rejected as one without substance. There is no doubt that an idol is a juristic person and can hold the property. (See Ram Jankijee Deities V. State of Bihar AIR 1999 Supreme Court 2131) but the idol cannot manage its own property, though property may not strictly vest in such cases in trustees but still trustees have to manage and take care of the property and for such reason they have to form an association. If such persons form an association, to manage such property though on behalf of idol, still they will have a right to say who or who should not associate them. It is with a view that the ::: Downloaded on - 09/06/2013 15:20:06 ::: 13 idol's property is not mismanaged, that those already managing it would decide to admit or not to admit any person as a member.
The decision in Damayanti Narang's case squarely applies to the present case in hand.
8. Shri Khapre learned counsel then submits that these members were approved by the committee in meetings dated 14.03.1995 and 26.03. 1995. A Proceeding Book of meeting is placed on record. If Proceeding Book Ex. 40 is looked into it would be clear that it bears signature of Dhoble as President and Jeewanlal Agrawal as Secretary. Although Minutes mention few other names as proposers and seconders their signatures are not at all to be found on it. It is therefore also clear that neither those proposers or seconders however were present nor such meetings were in fact held. There is admittedly no proof of service of notice on members of such meetings. If there is no proof of service of notice on members, for this reason alone the meetings must be held to be invalid.
::: Downloaded on - 09/06/2013 15:20:06 ::: 149. Minutes of those meetings were not approved by holding subsequent meetings as can be seen from the Proceeding Book.
Learned counsel for the petitioner submits that there is no need of approval and when Resolutions are passed they become final. The submission has no force at all. The confirmation is necessary because those who were absent on that day must know atleast in the second meeting as to what kind of Resolution was passed by those who were present and they have a right to object or they may even approve them. Even those present in the earlier meeting may object to the manner in which minutes were written or they may say whether such resolution was at all passed in former meeting or not. Further, one who is member of the management must be aware of all decisions taken by the trustees since their responsibility is joint. Therefore, to my mind approval of such Resolutions of the former meetings would be necessary.
10. The next ground that was considered by the Court below was that there was a Resolution already passed not to admit new ::: Downloaded on - 09/06/2013 15:20:06 ::: 15 members and such Resolution is not revoked and as such enrollment of new members is invalid. The order passed by the Deputy Charity Commissioner shows that earlier Resolution was by General Body. That would be binding until that is specifically revoked by placing such agenda before the meeting. Admittedly no meeting of the General Body has taken place revoking such a Resolution. The managing committee would not be able to revoke such decision of the general body. Further more there is no subject of revocation nor there is any resolution in the above two meetings to revoke the earlier Resolution. Mere approval by two members would not be enough. Scheme would show that for any meeting of the managing committee the coram should be of 5 members. There is nothing to suggest that 5 persons were present in the meeting.
Further there has to be resolution to enroll new members to accept their application and subscription. There is no resolution to that effect. The Charity Commissioners have rightly held that Resolutions in the meetings dated 14.03.1995 and 26.03.1995 are invalid and the meetings were invalid.
::: Downloaded on - 09/06/2013 15:20:06 ::: 1611. The next ground that needs consideration is whether an adhoc body could at all enroll the members. Shri Khapre learned counsel for the petitioners submits that adhoc body is for all purposes a body of trustees and can take every decision. A person becomes a member only when he is duly elected and his appointment is duly approved by way of change. He submits that elections were held and those persons were duly elected. According to him they continue to be trustees even though the change may have been rejected until new trustees assume office. In support of his argument Shri Khapre has placed before me a decision reported in Vijay Mehta And Another Vs. Charu K. Mehta And Others 2009(2) Bombay Case Reporter 321. This Court observes as under:
"Similarly, the ratio laid down by the Apex Court in the case of Managing Committee, Khalsa Middle School (supra) and the decision in the case of Church of North India (supra) on which strong reliance has been placed by the respondents, are also not applicable to the facts of the present case.
There can be no dispute with the proposition laid down by the Apex Court in the aforesaid cases that the orders passed under section 22(3) of the B. P. T. Act and entries made in the register pursuant to the ::: Downloaded on - 09/06/2013 15:20:06 ::: 17 said order are binding and conclusive and any alteration in the entries can be made only in accordance with law. The finality attached to the order passed under section 22(30 of the Act cannot be stretched to such an extent so as to hold that the trustees appointed by the Trust cannot function as trustees unless and until their names are recorded in the register as per the order passed under section 22(3) of the Act. As noted earlier, the order under section 22(30 of the B. P. T. Act merely gives finality to the changes already effected by the Trust and the said order does not make changes effective from the date of the said order."
What is held is that the order under Section 22(3) gives finality to the change. Thus although a change may have occurred it assumes finality only when the order is passed. Similar is the ratio in Ganesh Mahadeorao Thawre Vs. Central Hindu Military Education Society & Another 2007(5) Bombay C. R. 680 and Chembur Trombay Education Society & Others Vs. D. K. Marathe & Others 2002(3) Bombay C. R. 161. Here in the instant case the change report in question as well as one prior to it were rejected and Charity Commissioner had appointed adhoc body which can be treated as a body of fit persons only. The proposition that change occurs when ::: Downloaded on - 09/06/2013 15:20:06 ::: 18 election takes place can in no case be disputed. Authenticity of it is to be determined while holding an enquiry and change is therefore either endorsed by the Charity Commissioner or rejected by the Charity Commissioner. The Change Report No. 316 of 1995 was filed on 31.01.1995. Meeting enrolling members was held on 14.03.1995 and 26.03.1995 but this change report has been rejected by the Charity Commissioner and that order has assumed finality as appeals were withdrawn. Therefore also the decisions in the meetings are deemed as invalid. In any case for many other reasons these meetings are held to be invalid.
12. Shri Khapre learned counsel submits that even when a change report is rejected actions taken by elected trustees are valid.
Submission cannot be accepted. Once the Charity Commissioner holds that an election itself is invalid, it can be said that such a person was never elected at all. Shri Khapre puts an analogy before the Court and says that where appointment of Judge is made and it is found subsequently to be invalid, the decisions rendered by him are be held valid. He quotes a decision of the Supreme Court in ::: Downloaded on - 09/06/2013 15:20:06 ::: 19 Gokaraju Rangaraju Vs. State of Andhra Pradesh AIR 1981 Supreme Court 1473(1). Decision has no bearing. Charity Commissioner is required to see if legal change has occurred or not. Only when he says that such change has occurred such a person could be said to have assumed the office of the trust, till then he merely continues to be an elected trustee.
13. Shri Manohar learned counsel submits that all arguments of Shri Khapre about validity of the enrollment of new members can be negatived for the simple reason that the Deputy Charity Commissioner in Enquiry No. 8 of 1991 has specifically held that such enrollment was invalid. This application was moved by Shri C. G. Choube and others. They have made a prayer that 78 members should be declared as legally enrolled. Therefore the material question that was being decided by the Deputy Charity Commissioner was about validity of the enrollment of new members. He held that new members in category of sympathiser were not properly enrolled. He held that these new members had paid Rs. 250/- in one lumpsum which was in breach of the scheme.
::: Downloaded on - 09/06/2013 15:20:06 ::: 20Clause IV of the said scheme is already quoted above. If the clause is read it would be clear that a person becomes sympathiser member only when he pays 50th installment of Rs. 5/-. Anybody paying Rs. 250/- in lumpsum cannot be enrolled in category of sympathiser. He at the most may become an ordinary member.
This finding of the Charity Commissioner appears to me to be correct. Shri Khapre learned counsel submits that this decision is a void decision as according to him the Charity Commissioner has no right to decide the issue of membership. Decision has been rendered by a Charity Commissioner and it is not challenged or set aside. It cannot be said to be an order which is non est and one without jurisdiction. Charity Commissioner in fact has a power to decide the question of validity enrollment of members since the question would always be whether the office bearers are elected by a valid electorate. If the persons who are not validly included in electoral roll elect then election by those persons would be invalid.
Therefore the Charity Commissioner would certainly have a right to go into the question of validity of electoral roll if called upon to decide the same. Charity Commissioner has always an over all ::: Downloaded on - 09/06/2013 15:20:06 ::: 21 control over any trust. Therefore such an act on part of the Deputy Charity Commissioner to my mind was not one without jurisdiction. At the most it could be said that the Charity Commissioner may have committed an error of law. An error of law does not render any order invalid. Authorities below have rightly held that the enrollment was improper and therefore the election was improper.
14. Shri Khapre learned counsel for the petitioners made submission about improper acceptance of nomination of Shri Kulkarni, Shri Vaidya and Shri Kolhe. I need not go into the question since I concur with the the finding that the election is vitiated and no legal change has occurred. That would necessitate fresh election as directed by the Joint Charity Commissioner. Writ Petition is therefore liable to be dismissed. It is directed that election be held as per directions of Joint Charity Commissioner with the only rider that adhoc committee shall not nominate Shri C. G. Choube or any person associated with trust as an Election Officer but shall appoint a third person. The other directions given in the ::: Downloaded on - 09/06/2013 15:20:06 ::: 22 final order passed by the Joint Charity Commissioner be followed.
Election be held within a period of 4 weeks. Writ Petition is dismissed with costs quantified at Rs. 5000/- to be deposited with Legal Aid Services Authority.
JUDGE svk ::: Downloaded on - 09/06/2013 15:20:06 :::