Bombay High Court
Ashokkumar S/O Ratanlal Gandhi And ... vs Sudhir S/O Dulichand Baheti And Others on 4 May, 2019
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
WPs 4239&4240/18 1 Common Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 4239/2018
1. Ashokkumar S/o Ratanlal Gandhi,
Aged about 68 years, Occu: Business,
At Yashwant Stadium Dhantoli, Nagpur.
2. Ramesh Bhaskar Khanjode,
Aged about 75 years, Occupation - Retired,
R/o F/12, Laxmi Nagar, Nagpur.
3. Harish S/o Narayandas Rathi,
Aged about 62 years, Occu: Business,
R/o C/o Rathi Dental Clinic,
Residency Road, Sadar, Nagpur.
4. Mathuradas S/o Kanyaiyalal Panpaliya,
Aged about 72 years, Occu: Business,
R/o Veena Printing Press, Near Vijay
Talkies, Ghat Road, Nagpur.
5. Adv.Rajiv S/o Sakharam Dev,
Aged about 65 years, Occu: Legal Practitioner,
R/o C-1, Vijay Apartments, 1st Floor,
Civil Lines, Behind Labour Court, Nagpur.
6. Mohit S/o Sakarchand Shah,
Aged about 73 years, Occu: Business,
At National Medical Agency, 69/90,
General Market, Gandhi Bagh, Nagpur.
7. Adv.Rajendra S/o Jagannath Rathi,
Aged about 59 years, Occu: Legal Practitioner,
R/o Rathi Niwas, Temple Road,
Sitabuldi, Nagpur.
8. Mrs. Vibhavari S/o Sharad Dani,
Aged about 66 years, Occu: Doctor,
R/o Dani Niwas, Gandhi Sagar (East),
Mahal, Nagpur.
9. Brijkishor S/o Govinddas Bagri,
Aged about 76 years, Occu: Business,
R/o Padma Apartments, Ramdaspeth,
Nagpur. PETITIONERS
.....VERSUS.....
1. Sudhir S/o Dulichand Baheti,
Aged about 51 years, Occu: Chartered
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WPs 4239&4240/18 2 Common Judgment
Accountant, R/o Plot No.69,
Nawab Galli, Gokulpeth, Nagpur.
2. Madhusudan S/o Shrikrishna Binzani,
Aged about 55 years, Occu: Business,
R/o Binzani Bhavan, Mahal, Nagpur.
3. Joint Charity Commissioner, Nagpur.
4. Alka Sharad Deshmukh,
R/o 66, Kotwal Nagar, Ring Road,
Nagpur.
5. Dr.Mrs.M.M. Niyazi,
R/o 'Shad Vila', Friends Colony,
Katol Road, Nagpur.
6. Smt. S.S. Paldhikar,
R/o Taravilas Apartment, Dharampeth
Mahila Bank, Congress Nagar, Nagpur.
7. Dr.S.G. Charalwar,
R/o C/o Mohata Science College,
Sakkardara, Nagpur.
8. Vishwesh Gaiki,
R/o C/o D.D. Nagar School, Mahal,
Nagpur.
9. Smt. Anjali Kotpal,
R/o C/o Ramesh Chandak English School,
Mahal, Nagpur.
10. The Deputy Charity Commissioner,
Civil Lines, Nagpur.
11. The Rashtrasant Tukdoji Maharaj Nagpur
University, Nagpur through its Registrar,
Office at Ravindranath Tagor Marg,
Maharajbagh Square, Nagpur. RESPONDENTS
WITH
WRIT PETITION No. 4240/2018
1. Ashokkumar S/o Ratanlal Gandhi,
Aged about 68 years, Occu: Business,
At Yashwant Stadium Dhantoli, Nagpur.
2. Harish S/o Narayandas Rathi,
Aged about 62 years, Occu: Business,
R/o C/o Rathi Dental Clinic,
Residency Road, Sadar, Nagpur.
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WPs 4239&4240/18 3 Common Judgment
3. Adv.Rajendra S/o Jagannath Rathi,
Aged about 59 years, Occu: Legal Practitioner,
R/o Rathi Niwas, Temple Road,
Sitabuldi, Nagpur.
4. Adv.Rajiv S/o Sakharam Dev,
Aged about 65 years, Occu: Legal Practitioner,
R/o C-1, Vijay Apartments, 1st Floor,
Civil Lines, Behind Labour Court, Nagpur.
5. Brijkishor S/o Govinddas Bagdi,
Aged about 76 years, Occu: Business,
R/o Padma Apartments, Ramdaspeth,
Nagpur.
6. Mathuradas S/o Kanyaiyalal Panpaliya,
Aged about 72 years, Occu: Business,
R/o Veena Printing Press, Near Vijay
Talkies, Ghat Road, Nagpur.
7. Mohit Shah,
Aged about 70 years, Occu: Business,
R/o National Medical Agency, 69/90,
General Market, Gandhi Bagh, Nagpur. PETITIONERS
.....VERSUS.....
1. Sudhir S/o Dulichand Baheti,
Aged about 51 years, Occu: Chartered
Accountant, R/o Plot No.69,
Nawab Galli, Gokulpeth, Nagpur.
2. Joint Charity Commissioner, Nagpur,
Civil Lines, Nagpur.
3. The Deputy Charity Commissioner,
Civil Lines, Nagpur.
4. Madhusudan S/o Shrikrishna Binzani,
Aged about 55 years, Occu: Business,
R/o Binzani Bhavan, Mahal, Nagpur.
5. Dr.T.S.V. Naidu,
Aged about Major, Occupation - Business,
R/o Kamaldatta Residency, 102,
Sathe Marg, Dhantoli, Nagpur.
6. Prafulkumar Binzani,
Aged about Major, Occupation - Business,
R/o Binzani Bhawan, Tilak Road, Mahal,
Nagpur.
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WPs 4239&4240/18 4 Common Judgment
7. Aditya Bhaiyya,
Aged about Major, Occupation - Business,
R/o 602, Raghav Apartment,
Vijaynagar, Nagpur-13.
8. Ambrish Akare,
Aged about Major, Occupation - Business,
R/o 38, Kamalpushpa, Reshimbag,
Umrer Road, Nagpur.
9. Prem Lunawat,
Aged about Major, Occupation-Business,
R/o 69, Shivaji Nagar, Nagpur.
10. Ajal Mal,
Aged about Major, Occupation - Business,
R/o D-3, Krushnaganga, Board Office behind,
Civil Lines, Nagpur.
11. Satyanarayan Rathi,
Aged about Major, Occupation - Business,
R/o 53, Mahesh Colony,
Chandan Nagar, Nagpur.
12. Giridharilal Shindi,
Aged about Major, Occupation - Business,
R/o Shindi Bhawan, Gandhi Sagar East,
Mahal, Nagpur.
13. Smt. Aarti Senad,
Aged about Major, Occupation - Service,
R/o C/o Ramesh Chandak English School,
Nagpur.
14. Dr.Mrs.M.M. Niyazi,
R/o 'Shad Vila', Friends Colony,
Katol Road, Nagpur.
15. Smt. S.S. Paldhikar,
R/o Taravilas Apartment, Dharampeth
Mahila Bank, Congress Nagar, Nagpur.
16. Dr.S.G. Charalwar,
R/o C/o Mohata Science College,
Sakkardara, Nagpur.
17. Vishwesh Gaiki,
R/o C/o D.D. Nagar School, Mahal,
Nagpur.
18. Smt. Anjali Kotpal,
R/o C/o Ramesh Chandak English School,
Mahal, Nagpur.
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WPs 4239&4240/18 5 Common Judgment
19. The Rashtrasant Tukdoji Maharaj Nagpur
University, Nagpur through its Registrar,
Office at Ravindranath Tagor Marg,
Maharajbagh Square, Nagpur. RESPONDENTS
Shri R.L. Khapre, counsel for petitioners in both the writ petitions.
Ms S.S. Jachak, Assistant Government Pleader for respondent no.3 & 10 in W.P.
No.4239/2018 and for respondent nos.2 and 3 in W.P. No.4240/2018.
Shri A.C. Dharmadhikari with Shri S.D. Abhyankar, counsel for respondent no.1
in both the writ petitions.
Shri R.D. Bhuibhar, counsel for respondent no.11 in W.P. No.4239/2018 and for
respondent no.19 in W.P. No.4240/2018.
CORAM : A.S. CHANDURKAR, J.
ARGUMENTS WERE HEARD ON : 18TH APRIL, 2019
JUDGMENT PRONOUNCED ON : 04TH MAY, 2019
JUDGMENT
Since both these writ petitions raise a challenge to the common order passed by the learned Joint Charity Commissioner in Appeal No.182 of 2017 and 183 of 2017 dated 30.06.2018, they are being decided together by this common judgment.
2. RULE. Rule made returnable forthwith and heard finally with consent of counsel for the parties.
3. The dispute seeking adjudication relates to a public trust by name "The Nagpur Shikshan Mandal, Nagpur" which is a trust registered under the provisions of the Maharashtra Public Trusts Act, 1950 (for short, 'the said Act'). The aims and objects of the Trust are related to ::: Uploaded on - 06/05/2019 ::: Downloaded on - 06/05/2019 22:47:54 ::: WPs 4239&4240/18 6 Common Judgment educational activities. The office-bearers of the Managing Committee are elected for a period of three years. On 15.02.2016, a notice came to be issued by the Secretary of the said Trust informing the members that the meeting of the Managing Committee would be held on 22.02.2016. On 22.02.2016 in the meeting of the Managing Committee, it was resolved that the Annual General Meeting would be held on 03.03.2016 in which the new Managing Committee would be elected. Accordingly, the Managing Committee resolved to appoint two polling officers namely Shri Kishor Ambilwade and Smt.Dr.Niyazi to conduct the elections. On 23.02.2016, the President gave an intimation to both the Polling Officers alongwith all relevant material to enable holding of said elections in the Annual General Meeting that was scheduled on 03.03.2016. The Secretary published the agenda of the Annual General Meeting and one of the subjects included election of officer bearers and members of the Managing Committee. The election programme was duly published. As per that election programme, the voters list was to be published on 25.02.2016 and objections if any were to be submitted by 26.02.2016. The final list of voters was to be published on 27.02.2016. The nomination forms were to be submitted on 29.02.2016 and the elections were to be held on 03.03.2016. The total number of members were stated to be 57 and as in the final list of voters names of 44 members were shown, an objection was sought to be raised by one group of ::: Uploaded on - 06/05/2019 ::: Downloaded on - 06/05/2019 22:47:54 ::: WPs 4239&4240/18 7 Common Judgment members led by the Secretary of the trust. The Polling Officer on 27.02.2016 considered those objections and rejected the same. On the same day, the Secretary published a notice in which it was stated that as there was bona fide dispute raised by eligible members of the trust in the matter of exercising their right to vote and as the President had displayed a list of voters excluding the name of some eligible voters, the Annual General Meeting that was scheduled on 03.03.2016 was postponed till further notification. On the next day, the President issued a notice to all members calling upon them to ignore the notice dated 27.02.2016 issued by the Secretary. The members were informed that the Annual General Meeting would be held as scheduled. On 03.03.2016, the Annual General Meeting was held and elections to the Managing Committee were conducted therein. Pursuant to those elections, Change Report No.623 of 2016 was filed reporting the change that had taken place pursuant to the said elections. This change report was filed by Shri Harish Rathi who was stated to be elected as Secretary in the said elections.
On 05.03.2016, the erstwhile Secretary who had issued notice postponing the Annual General Meeting issued a fresh notice stating therein that the Annual General Meeting that was scheduled on 03.03.2016 had been re-scheduled to 13.03.2016. The fresh election programme was accordingly published. The final voters list was to be published on 08.03.2016 and the nomination forms were to be submitted ::: Uploaded on - 06/05/2019 ::: Downloaded on - 06/05/2019 22:47:54 ::: WPs 4239&4240/18 8 Common Judgment by 09.03.2016. The elections as stated were to be held on 13.03.2016. On 13.03.2016, the Annual General Meeting was stated to be convened in which about 22 members were shown to be present. Pursuant to the conduct of elections of the Managing Committee, Change Report No.802 of 2016 was filed by Shri Sudhir Baheti who was also the erstwhile Secretary.
4. Thus, before the Deputy Charity Commissioner, two conflicting change reports in the matter of elections to the Managing Committee of the said Trust came to be filed. Objections were raised by the rival parties to the respective change reports. The parties led evidence in support of their contentions. After considering the entire material on record, the learned Deputy Charity Commissioner in Change Report No.623 of 2016 came to the conclusion that the Secretary had no authority to postpone the Annual General Meeting which was scheduled on 03.03.2016. According to him, the objections to the voters list could have been raised before the Polling Officer and there was no justifiable reason to postpone the Annual General Meeting. It was then found that the voters list containing names of 44 members had been rightly prepared and names of 13 members were rightly deleted as they had no right to vote in the elections. Thus, by the judgment dated 07.08.2017, Change Report No.623 of 2016 came to be allowed.
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WPs 4239&4240/18 9 Common Judgment As regards Change Report No.802 of 2016 is concerned, the learned Deputy Charity Commissioner held that the elections as held on 13.03.2016 were against the constitution of the Trust. There was no consent of the President nor any resolution of the Managing Committee either to postpone the Annual General Meeting or to hold it subsequently. Thus, by judgment dated 07.08.2017, Change Report No.802 of 2016 came to be rejected.
5. The aforesaid adjudication led to filing of two appeals before the learned Joint Charity Commissioner. The acceptance of Change Report No.623 of 2016 was challenged in Appeal No.183 of 2017 while the rejection of Change Report No.802 of 2016 was challenged in Appeal No.182 of 2017. On hearing the learned counsel for the respective parties, the learned Joint Charity Commissioner by his judgment dated 30.06.2018 allowed both the appeals. Consequently, Change Report No.623 of 2016 was set aside and Change Report No.802 of 2016 came to be allowed. In other words, the elections held on 03.03.2016 were not held to be valid while the elections held on 13.03.2016 were upheld. Being aggrieved by this adjudication, the present writ petitions have been filed.
6. Shri R.L. Khapre, learned counsel for the petitioners in support of Change Report No.623 of 2016 submitted that the Deputy ::: Uploaded on - 06/05/2019 ::: Downloaded on - 06/05/2019 22:47:54 ::: WPs 4239&4240/18 10 Common Judgment Charity Commissioner after considering the entire material on record in the light of bye-laws of the Trust had rightly found that the Secretary had no authority to cancel the Annual General Meeting that was scheduled on 03.03.2016. According to him, the learned Joint Charity Commissioner erred in applying principles based on the provisions of the General Clauses Act, 1897 that the power to do a particular thing included the power to undo such thing. Referring to the judgment of the Hon'ble Supreme Court in Jayantbhai Manubhai Patel & Others Versus Arun Subhodhbhai Mehta & Others [AIR 1989 SC 1289], it was submitted that there was a distinction between conferment of such statutory power and power being derived from the Articles of Association or the bye-laws which are contractual in nature. While the powers conferred under a Statute were statutory in nature attracting the principles under Section 21 of the General Clauses Act, 1897, same analogy would not apply in the exercise of powers under the Articles of Association or bye-laws. The exercise of powers would be governed by such Articles of Association or bye-laws. He submitted that the ratio of the decision in Chandrakant Khaire Versus Dr.Shantaram Kale & Others [AIR 1988 SC 1665] therefore would not apply to the facts of the present case. He then submitted that the Annual General Meeting was scheduled to be held on 03.03.2016 as resolved by the Managing Committee on 22.02.2016. The erstwhile Secretary was also present in that meeting and pursuant ::: Uploaded on - 06/05/2019 ::: Downloaded on - 06/05/2019 22:47:54 ::: WPs 4239&4240/18 11 Common Judgment thereto, the election programme was published. In that election programme, an opportunity of raising objections to the voters list was given and pursuant thereto objections were raised to the voters list as published by the Polling Officer. The Polling Officer had adjudicated upon those objections and if any party was aggrieved by that adjudication the remedy was to challenge the change report that was to be filed on the conclusion of elections. It was further submitted that in view of the fact that the President of the trust had cancelled the earlier notice dated 27.02.2016 issued by the Secretary, the members had rightly participated in the Annual General Meeting held on 03.03.2016. He also referred to the order passed by the learned Deputy Charity Commissioner under provisions of Section 41A of the said Act in which the Secretary was also a party. These proceedings were filed with a prayer to postpone the said elections. No relief had been granted therein and the application for interim relief was rejected on 02.03.2016.
It was then submitted that the meeting dated 03.03.2016 was attended by about 36 members and none of them raised any objection as sought to be raised by the Secretary. According to him, nomination papers were purchased by sixteen members which included the Secretary and President who were pursuing Change Report No.802 of 2016. They had therefore acquiesced to the said election held on 03.03.2016. He further urged that none of the members whose names were alleged to be ::: Uploaded on - 06/05/2019 ::: Downloaded on - 06/05/2019 22:47:54 ::: WPs 4239&4240/18 12 Common Judgment deleted from the voters list had raised any objection to Change Report No.623 of 2016 and in that view of the matter, the learned Deputy Charity Commissioner rightly held that the said change report was valid. Referring to the objections to the said change report, it was urged that names of those thirteen members who were stated to have been deprived of their voting right had not been mentioned in the said objection. The nature of objection sought to be raised by those objectors was also not clear.
7. On the aspect of validity of the said change, the learned counsel referred to various clauses of the bye-laws to indicate that no eligible member had been deprived of the right to vote in the Annual General Meeting. Reference was made to Clauses 4 and 6 of the bye-laws and it was urged that employees of the institution run by the Trust were not permitted to be voters in the election to elect office bearers. It was further submitted that while the learned Deputy Charity Commissioner considered the entire matter in its proper perspective, the learned Joint Charity Commissioner without any legal or factual basis, reversed that order. It was thus submitted that the impugned order was liable to be set aside and the order passed by the learned Deputy Charity Commissioner was liable to be upheld.
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WPs 4239&4240/18 13 Common Judgment 8. Shri A.C. Dharmadhikari, learned counsel for the
respondents who were in favour of Change Report No.802 of 2016 opposed aforesaid submissions. According to him, the Secretary was justified in postponing the holding of the Annual General Meeting on 03.03.2016 on noticing that from the voters list thirteen names had been deleted. As a result, instead of 57 members the election was to be held only amongst 44 members. It was his submission that since the initial notice to hold the Annual General Meeting on 23.02.2016 was issued by the Secretary he had the authority to publish the notice dated 27.02.2016 postponing the same. This power vested with the Secretary and according to him the principles flowing from the decision in Chandrakant Khaire Versus Dr.Shantaram Kale & Others [AIR 1988 SC 1665] were rightly applied by the learned Joint Charity Commissioner. No opportunity was given to any of the thirteen members so as to substantiate the action of deleting their names. If such notice would have been given the said thirteen members could have justified their inclusion in the voters list. He submitted that adjudication of the proceedings under Section 41A of the said Act would not come in the way of the respondents as there was no adjudication on any aspect on merit. The prayer for interim relief merely had been refused. He referred to the observations in paragraph 19 of the decision in Ravindra Nanasaheb Deshmukh & Another Versus Shankarrao Dashrath Ingle & Others ::: Uploaded on - 06/05/2019 ::: Downloaded on - 06/05/2019 22:47:54 ::: WPs 4239&4240/18 14 Common Judgment [2014(6) Mh.L.J. 208] to justify the cancellation of the Annual General Meeting by the notice dated 27.02.2016.
It was submitted that the Secretary of the Trust is treated as the Chief Administrative Officer and as per Clause 4G(v), it was permissible for him to take various steps and fill in vacancies in the Committee. There was no separate category of voters as sought to be canvassed by the petitioners and all members were eligible to be voters. There was only an embargo on contesting elections. Since there were 57 members in all, they were entitled to vote by participating in the said elections. Their names were not liable to be deleted from the voters list. While one of the Polling Officers had resigned even prior to the Annual General Meeting held on 03.03.2016, the subsequent Annual General Meeting held on 13.03.2016 was in accordance with law in which notice was given to all members and the Managing Committee was elected. He also referred to the evidence led by the parties especially the Polling Officer and his admissions regarding some scoring in the records. According to him, the purchase of nomination papers by sixteen members was before the notice of cancellation dated 27.02.2016 issued by the Secretary. There was no question of any estoppel especially when names of thirteen members as voters had been wrongly deleted. He further submitted by referring to Clause 4 of the bye-laws that teachers in the institution could vote in the elections but they were not permitted to ::: Uploaded on - 06/05/2019 ::: Downloaded on - 06/05/2019 22:47:54 ::: WPs 4239&4240/18 15 Common Judgment contest the elections. Same was the case with honourary members and they were also not permitted to vote in the elections. Referring to the judgment in First Appeal No.1435 of 2017 [Bhaurao Krushnarao Bhoyar (Deleted) Prabhakar Dinbaji Badhe Versus Dyaneshwar Pundlikrao Lohakare] decided on 28.02.2019, it was submitted that the elections conducted in absence of eligible voters were bad in law. According to the learned counsel, the notice dated 05.03.2016 convening the Annual General Meeting on 13.03.2016 was not objected to. If the elections were infact held on 03.03.2016, an objection could have been raised to that notice. Infact, it was submitted that on 01.03.2016 itself the results of the elections were declared when infact it was the case of the petitioners that such elections were held on 03.03.2016. As all eligible members had participated in the Annual General Meeting held on 13.03.2016, Change Report No.802 of 2016 as filed ought to have been accepted by the learned Deputy Charity Commissioner. He then referred to the decisions in Union of India & Others Versus P.Gunasekaran [(2015) 2 SCC 610] and S. Sreesanth Versus Board of Control for Cricket in India & Others [2019(3) JT 377] to urge that the scope for interference under Article 227 of the Constitution of India was limited. In the light of various findings of fact recorded by the learned Joint Charity Commissioner, no interference with the impugned judgment was called for. ::: Uploaded on - 06/05/2019 ::: Downloaded on - 06/05/2019 22:47:54 :::
WPs 4239&4240/18 16 Common Judgment
9. I have heard the learned counsel for the parties at length and I have also gone through the material placed on record. From the rival contentions it can be seen that Change Report No.623 of 2016 concerns the validity of the elections held on 03.03.2016 while Change Report No.802 of 2016 refers to the elections held on 13.03.2016. The first aspect to be adjudicated is the validity of the action of the Secretary in postponing Annual General Meeting that was scheduled on 03.03.2016 and thereafter holding the same on 13.03.2016. In this regard, there is no dispute that on 15.02.2016 the Secretary had convened a meeting of the Managing Committee on 22.02.2016 in which it was resolved to hold the Annual General Meeting on 03.03.2016. In that context, two Polling Officers for conducting said elections were appointed. In the light of the decision taken in the meeting held on 22.02.2016, the Polling Officers were accordingly intimated and the Secretary also published the election programme for the elections to be held on 03.03.2016. In this programme, after publication of the voters list, an opportunity was given to raise objections to the voters list. The record indicates that after the voters list was published objections were raised thereto. Those objections were adjudicated upon by the Polling Officer and the objections were turned down. Thereafter, in accordance with the election programme, the final list of voters was published. This was on 27.02.2016. On the same day, the Secretary published a notice postponing the Annual ::: Uploaded on - 06/05/2019 ::: Downloaded on - 06/05/2019 22:47:54 ::: WPs 4239&4240/18 17 Common Judgment General Meeting that was scheduled on 03.03.2016. The reason mentioned in the said notice was that there was a bona fide dispute raised by eligible voters in the matter of exercise of their rights to cast votes and elect members of their choice. There was a deletion of the names of few eligible voters and unless the dispute as raised was logically concluded and decided by the Competent Authority, the Annual General Meeting was postponed.
In this context, it is to be noted that the reason for the Secretary to postpone the Annual General Meeting was the deletion of the names of some voters from the voters list. As stated above, in the election programme as published it was permissible to raise objections to the preliminary voters list. Such objections were infact raised and adjudicated upon by the Polling Officer. It is thereafter on publication of the final voters list that the Secretary sought to postpone the holding of the Annual General Meeting. It is a settled principle that after commencement of the process of election from the date of publication of the voters list, the entire election programme should be permitted to continue unhindered and the same should be taken to its logical end. In the present case, when raising of objections to the voters list was part of the election programme and such objections were raised and adjudicated by the Polling Officer, there was no justification for postponing the Annual General Meeting on the premise that unless the dispute raised by ::: Uploaded on - 06/05/2019 ::: Downloaded on - 06/05/2019 22:47:54 ::: WPs 4239&4240/18 18 Common Judgment the members in that regard was logically concluded and decided by the Competent Authority, the elections could not be held. There was no stage in the election programme to interdict the same for further adjudication of any objection to the voters list after such objection was considered by the Polling Officer. Any aggrieved member who was deprived of his right of voting could have raised such objection only at the conclusion of the election especially when objections were permissible for being raised to the provisional voters list and such objections as raised were decided. It is thus found that the only reason assigned by the Secretary for postponing the Annual General Meeting cannot stand the scrutiny of the general principles governing the conduct of elections.
10. There is the substance in the submission made on behalf of the petitioners that the general principles under Section 21 of the General Clauses Act, 1897 that the power to convene meeting includes the implied power to cancel or postpone such meeting would not be applicable to the meeting of the Trust in the light of its bye-laws. In Jayantbhai Manubhai Patel (supra), this distinction has been noted by the Hon'ble Supreme Court that the powers derived from the Articles of Association of a Company are essentially in the nature of a contract or an agreement while the powers granted to the Mayor of a Corporation are statutory in nature. On that premise, the ratio of the decision in Chandrakant Khaire (supra) ::: Uploaded on - 06/05/2019 ::: Downloaded on - 06/05/2019 22:47:54 ::: WPs 4239&4240/18 19 Common Judgment cannot be made applicable to the case in hand. In any event, it is found that the action of the Secretary in postponing the Annual General Meeting on the ground that names of some voters had been deleted from the voters list was against the spirit of the conduct of elections and hence unwarranted. The learned Deputy Charity Commissioner has rightly appreciated this aspect of the matter and recorded a finding that the action on the part of the Secretary in postponing the Annual General Meeting was not in accordance with law. The Joint Charity Commissioner erroneously held that postponement of the Annual General Meeting by the Secretary was justified. It is thus held that the finding recorded by the learned Deputy Charity Commissioner in this regard deserves to be upheld.
11. Once it is found that the Annual General Meeting was held as scheduled on 03.03.2016, the only aspect to be considered is whether the change that has occurred as reported is legal and valid. In this regard, it has been found by the learned Deputy Charity Commissioner that the names that were deleted from the voters list were of those persons who were ineligible to vote therein. Reference was made to Clauses 3(i)(e) and 6 of the bye-laws to indicate that aspect. On reading of Clause 3(i)
(e), Clause 4A(i), Clause 4C(ii) and Clause 6A, it becomes clear that the deletion of the names of those members who were not entitled to vote ::: Uploaded on - 06/05/2019 ::: Downloaded on - 06/05/2019 22:47:54 ::: WPs 4239&4240/18 20 Common Judgment was a justified act on the part of the Polling Officer. The bye-laws prescribe the election of the office bearers of the Managing Committee from amongst its members but excludes employees of the trust and those who were not members under clauses (j) and (k) of Clause 3 thereof. Clause 6A has also to be taken into consideration. It is found that the learned Deputy Charity Commissioner has rightly considered the bye-laws as a whole while recording a finding that the change in question was legal and valid. The learned Joint Charity Commissioner on the other hand was not justified in concluding that the names of members deleted were of persons who were entitled to vote in the said election. That finding cannot be upheld in the light of the bye-laws of the trust. It is thus held that the elections that were conducted in the Annual General Meeting on 03.03.2016 were legal and valid as rightly found by the learned Deputy Charity Commissioner.
12. As regards the submission that there was a limited scope to interfere with the adjudication by the learned Joint Charity Commissioner, it may be stated that if it is found that the learned Joint Charity Commissioner has approached the question arising in the matter on a wrong premise leading to an illogical conclusion, this Court would be justified in interfering with that adjudication. As noted above, when in the election programme, there was a specific provision for raising ::: Uploaded on - 06/05/2019 ::: Downloaded on - 06/05/2019 22:47:54 ::: WPs 4239&4240/18 21 Common Judgment objection to the voters list and such objection was raised and considered by the Polling Officer, there was no justifiable reason for the Secretary to postpone the holding of the Annual General Meeting only on the ground that names of some eligible voters had been deleted from the voters list. As noted above, such challenge was permissible for being raised at the conclusion of the elections. Another relevant aspect which cannot be ignored is that said thirteen persons whose names are alleged to have been wrongly deleted from the voters list have not come forward to raise an objection as sought to be raised by the Secretary. Further, in the Annual General Meeting held on 03.03.2016, 36 members were present while in the subsequent Annual General Meeting held on 13.03.2016 only 22 members are shown to be present. It is thus found that the petitioners have made out a case for interference under Article 227 of the Constitution of India. I am also satisfied that such case has been made out and failure to accept the proceedings of the Annual General Meeting validly held on 03.03.2016 as legal and valid would result in injustice.
13. In the light of the aforesaid discussion, the following order is passed:-
I. The judgment of the learned Joint Charity Commissioner dated 30.06.2018 in Appeal Nos.183 of 2017 and 182 of 2017 is set aside.::: Uploaded on - 06/05/2019 ::: Downloaded on - 06/05/2019 22:47:54 :::
WPs 4239&4240/18 22 Common Judgment II. The orders passed by the learned Deputy Charity
Commissioner dated 07.08.2017 in Change Report Nos.623 of 2016 and 802 of 2016 are restored.
14. Both the writ petitions are allowed leaving the parties to bear their own costs.
15. At this stage, learned counsel for the respondents prays that this judgment be stayed for a period of eight weeks. That request is opposed by the learned counsel for the petitioners. This judgment shall operate after a period of eight weeks from today.
(A.S. CHANDURKAR, J.) APTE ::: Uploaded on - 06/05/2019 ::: Downloaded on - 06/05/2019 22:47:54 :::