Bombay High Court
Sau. Archana W/O Sanjay Walali vs Rupchand Gulabsa Jain And Others on 25 February, 2020
Author: Manish Pitale
Bench: Manish Pitale
1 936-J-WP-596-20.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.596 OF 2020
PETITIONER : Sau. Archana w/o Sanjay Walali,
Aged about : 38 years, Occ. Auditor
Syadwad Education Society Ansing,
R/o C/o Behind Kallyani General
Stores, Main Road, Ansing,
Tq. and District Washim.
VERSUS
RESPONDENTS : 1. Rupchand Gulabsa Jain,
Aged about:82 years, Occ - Farmer,
At Post Ansing, Main Road,
Tq. and District Washim.
2. Dharmachandra Kundlsa Walli,
Occ : Agriculturist,
Aged about : 84 years, At Post Ansing,
Main Road, Tq. & Dist.Washim.
3. Shri Adityakumar Hukumchand Walli,
Occ : Agriculturist, Aged : 50 yrs.
At Post Ansing, Main Road,
Tq. & Dist. Washim.
4. Shri Uday Liladhar Walli,
Occ. Agriculturist, Aged : 50 yrs.
At Post Ansing, Main Road,
Tq. & Dist. Washim.
5. Shri Balachand Jaykumarsa Walli,
Occ : Agriculturist, Aged about : 54 yrs.
At Post Ansing, Main Road,
Tq. & Dist. Washim.
6. Shri Kirankumar Vijaykumar Walli,
Occ : Agriculturist, Aged about - 60 yrs.
At Post Ansing, Tq. & Dist. Washim.
7. Assistant Charity Commissioner,
Washim.
::: Uploaded on - 02/03/2020 ::: Downloaded on - 24/03/2020 00:23:40 :::
2 936-J-WP-596-20.odt
-------------------------------------------------------------------------------------------
Smt. R. S. Sirpurkar, Advocate for petitioner.
Shri V. K. Paliwal, Advocate for respondent Nos.1 and 3 to 6.
Smt. Mrunal Naik, AGP for respondent No.7.
-------------------------------------------------------------------------------------------
CORAM:- MANISH PITALE, J.
DATED : 25/02/2020.
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsel appearing for the parties.
2. By this petition, the petitioner has challenged order dated 18/11/2019, passed by the Assistant Charity Commissioner, Washim, whereby an application filed by the petitioner seeking intervention in the proceedings before the said authority under Section 41-A of the Maharashtra Public Trusts Act, 1950, has been rejected.
3. The respondent No.1 has filed the said application under Section 41-A of the aforesaid Act for the following reliefs before the Assistant Charity Commissioner :-
"i] To allow the application and
ii] To direct to non-applicants that to hold election and to
elect the new governing body in accordance with the bylaws of the trust and ::: Uploaded on - 02/03/2020 ::: Downloaded on - 24/03/2020 00:23:40 ::: 3 936-J-WP-596-20.odt iii] Any other relief just and equitable relief may kindly be granted in favour of the applicant and against the non- applicants in the interest of justice."
4. The material on record shows that the petitioner and other persons claimed to have been elected as office bearers of the Executive Body of the Trust / Society - Syadwad Education Society, Ansing, in December, 2014. Accordingly, change report proceedings were initiated under Section 22 of the said Act in the year 2015. The said change report proceedings are admittedly pending before the Assistant Charity Commissioner. It is also undisputed fact that the petitioner herein was shown as elected member / auditor of the Executive Body, while respondent No.1 herein was shown to have been elected as a Treasurer, while one Sanjay Dharmachandra Walali was shown to have been elected as the President.
5. In the said proceedings initiated by respondent No.1 under Section 41-A of the aforesaid Act, the said Sanjay Dharmachandra Walali, who was shown to have been elected as the President in the Change Report Enquiry No.428/2014, filed an application for intervention (Exh.15) and by order dated 21/01/2019, the Assistant Charity Commissioner allowed the said ::: Uploaded on - 02/03/2020 ::: Downloaded on - 24/03/2020 00:23:40 ::: 4 936-J-WP-596-20.odt application, recording that the said proposed intervener was a patron member and he was shown as the elected President in the aforesaid Change Report Enquiry No.428/2015.
6. Thereafter, the petitioner filed a similar application at Exh.36 seeking permission to intervene in the said proceedings initiated by respondent No.1 under Section 41-A of the aforesaid Act. It was claimed by the petitioner that she was shown as an elected member of the Executive Body / Auditor in the very same Change Report Enquiry No.428/2015 and therefore, she also deserved to be permitted to intervene in the said proceedings. This was opposed by respondent No.1. By the impugned order dated 18/11/2019, the Assistant Charity Commissioner rejected the application, holding that the issue of membership of the proposed intervener as incoming trustee in Change Report Enquiry No.428/2015 was still undecided and therefore, the application filed by the petitioner could not be granted.
7. Learned counsel for the petitioner submitted that the impugned order deserves to be set aside because the reason given for rejection of the application for intervention, was not sustainable. It was submitted that there was material on record to ::: Uploaded on - 02/03/2020 ::: Downloaded on - 24/03/2020 00:23:40 ::: 5 936-J-WP-596-20.odt show that in terms of the Constitution and Byelaws of the said Society / Trust, the petitioner had indeed applied for membership and she had deposited the requisite membership fee and particularly, when she was elected as a member of the Executive Body in the election held in December, 2014 and such change report was pending before the Assistant Charity Commissioner, as per the Change Report Enquiry No.428/2015, the intervention application ought to have allowed. It is submitted that the issue of membership could certainly not be a subject matter in the proceedings initiated under Section 41-A of the aforesaid Act and that in any case, the petitioner answered the description of a person interested as defined under the provisions of the said Act read with Judgments of this Court in the case of Suresh Hiralal Shah Vrs. Shree Mahavir Swami Digambar Jain Mandir Trust, reported in 2001 (3) Mh.L.J. 147 and in the case of Mr.Harshal s/o Uddhav Aarvikar Vrs. Shri Jagjeet Singh Gurusharan Singh and another (Writ Petition No.1905/2017 and connected writ petitions decided on 07/04/2017). It is submitted that when the application of similarly situated person at Exh.15 already stood allowed, the Assistant Charity Commissioner could not have rejected the application of the petitioner by the impugned order. ::: Uploaded on - 02/03/2020 ::: Downloaded on - 24/03/2020 00:23:40 :::
6 936-J-WP-596-20.odt
8. On the other hand, the learned counsel appearing for respondent Nos.1 and 3 to 6 vehemently submitted that there was nothing on record to show that the petitioner was ever inducted as a member of the Society / Trust. It was further submitted that the case of other applicant whose intervention application was allowed, was distinguishable for the reason that he was a patron member of the Society / Trust. It was further submitted that a person interested was specifically defined under Section 2(10) of the aforesaid Act and since the petitioner was not even a member of the Society / Trust, she did not qualify to be a person interested to maintain an application for intervention before the Assistant Charity Commissioner in the proceedings initiated by respondent No.1 under Section 41-A of the aforesaid Act.
9. Learned counsel appearing for respondent Nos.1 and 3 to 6 placed reliance on Judgment of this Court in the case of Sandeep Ram Meghe and others Vrs. Pundlikrao Balaji Gohad (dead) and others, reported in 2013 (4) Mh.L.J. 703 and in the case of Satish Vasant Salpekar Vrs. Ashwin Ghatate and another, reported in 2018(2) Mh.L.J. 57.
::: Uploaded on - 02/03/2020 ::: Downloaded on - 24/03/2020 00:23:40 :::
7 936-J-WP-596-20.odt
10. Heard learned counsel for the rival parties and perused the material placed on record.
11. A perusal of the impugned order shows that the Assistant Charity Commissioner has rejected application filed by the petitioner at Exh.36 by a cryptic order, observing that since the issue of membership of the proposed intervener is pending in Charge Report Enquiry No.428/2015 and it is still undecided, the petitioner could not be said to be a person interested.
12. A perusal of the material on record shows that the Charge Report Enquiry No.428/2015, is a proceeding which is pending before the Assistant Charity Commissioner, wherein the change report is in respect of election of certain office bearers and members of the Executive Body of the Society / Trust in December, 2014. It is undisputed that in the said change report proceedings, it is claimed that the petitioner was elected as an Auditor while respondent No.1 was elected as a Treasurer and one Sanjay Walali, the person whose intervention application was allowed by the Assistant Charity Commissioner, was elected as the President. Admittedly, the said Change Report Enquiry Proceedings are pending before the Assistant Charity ::: Uploaded on - 02/03/2020 ::: Downloaded on - 24/03/2020 00:23:40 ::: 8 936-J-WP-596-20.odt Commissioner. There is nothing on record to show that the very membership of the petitioner is the subject matter of controversy in the said change report pending before the Assistant Charity Commissioner. To that extent, it appears that the Assistant Charity Commissioner in the impugned order has confused the question of membership of the petitioner in the Trust / Society and she being an elected member of the Executive Body, pursuant to election held in December, 2014, in respect of which the said Change Report Enquiry No.428/2015, has been filed and is pending before the Assistant Charity Commissioner.
13. There is no question of this Court going into the controversy as to whether the petitioner is a member of the Trust / Society in terms of the Constitution and Byelaws. The same is not the subject mater of dispute in the proceedings. In fact, appropriate proceedings in accordance with law are required to be initiated to question the membership of the petitioner in the Society/Trust.
14. Be that as it may, in the present petition, it has been argued on behalf of respondent No.1 that the petitioner does not answer the description of a person interested in terms of ::: Uploaded on - 02/03/2020 ::: Downloaded on - 24/03/2020 00:23:40 ::: 9 936-J-WP-596-20.odt Section 2(10) of the aforesaid Act. It is submitted that the petitioner is not even a member of the Trust / Society and therefore, she cannot file an application for intervention before the Assistant Charity Commissioner in the proceedings initiated by respondent No.1 under Section 41-A of the aforesaid Act.
15. As noted above, this Court is not going into the controversy as to whether the petitioner is a member of the Society / Trust or not, since there is no challenge raised to the same by way of appropriate proceedings, in accordance with law. At this stage, what the Court is supposed to examine is, as to whether there is material on record to show petitioner can be said to be a person interested in terms of provisions of the aforesaid Act.
16. Learned counsel for the petitioner has drawn attention of this Court to the Constitution and Byelaws of the Society / Trust, wherein definition of Founder Member and other categories of members is given. It is also pointed out that an application for membership was submitted by the petitioner and membership fee in terms of Constitution and Byelaws was indeed deposited with the Society / Trust. It is also an undisputed fact ::: Uploaded on - 02/03/2020 ::: Downloaded on - 24/03/2020 00:23:40 ::: 10 936-J-WP-596-20.odt that the change report was submitted before the Assistant Charity Commissioner pursuant to election, said to have been held in December, 2014 and in such Change Report Enquiry No.428/15, it was also reported that along with petitioner, respondent No.1 was elected as the Treasurer and the aforesaid Sanjay Walali was elected as the President. The deposition of respondent No.1 pertaining to change report proceedings of earlier election has been placed on record, wherein respondent No.1 himself has deposed about the fact that as per Change Report Enquiry No.428/15, he along with the petitioner, was elected as office bearer of the Executive Body of the Society of the Trust.
17. In this backdrop, it is also significant that similar application for intervention filed by the said Sanjay Walali (Exh.15) was allowed by the Assistant Charity Commissioner. This Court is unable to understand that if the intervention application (Exh.15) was allowed by a similarly situated person, why the application of the petitioner was rejected by the Assistant Charity Commissioner by the impugned order.
18. As noted above, Assistant Charity Commissioner seems to have been confused between a member of the Society/Trust and being elected member of the Executive Body of ::: Uploaded on - 02/03/2020 ::: Downloaded on - 24/03/2020 00:23:40 ::: 11 936-J-WP-596-20.odt the Trust / Society. What is pending for consideration and decision in Change Report Enquiry No.428/2015, is the question as to whether the petitioner along with other office bearers including respondent No.1 were elected in an election that took place in December, 2015. The reason given in the impugned order for rejecting the application for intervention at Exh.26 filed by the petitioner, seems to be erroneous.
19. In this context, the reliance placed by learned counsel for the petitioner on Judgment of this Court in the case of Suresh Hiralal Shah (supra) is relevant. In the said Judgment, this Court referred to Section 73A of the aforesaid Act and it was found that a person found to be interested in the Public Trust ought to be joined as a party to the proceedings filed before the authorities under the aforesaid Act. It was held that assertion made therein against the petitioner being neither an incoming or outgoing Trustee and hence, not being qualified to be a person interested could not be accepted and on that basis, direction was given to implead the petitioner therein as a party to the proceedings pending before the Assistant Charity Commissioner. ::: Uploaded on - 02/03/2020 ::: Downloaded on - 24/03/2020 00:23:40 :::
12 936-J-WP-596-20.odt
20. Learned counsel for the petitioner has correctly relied upon Judgment of this Court in the case of Mr.Harshal s/o Uddhav Aarvikar (supra), wherein this Court has held that the provisions of Section 73A of the aforesaid Act, were wide enough to include even the persons who were not the members of the Trust on the date of filing of the change report, provided that they satisfied other criteria, to be called as a person having interest in the Trust. In the present case, it is undisputed that in the pending Change Report Enquiry No.428/2015, the petitioner is shown as an elected member of the Executive Body of the Trust / Society and contesting respondent No.1 herein has been shown as a Treasurer. Therefore, it is a situation much better than one contemplated by this Court in the aforesaid Judgment in the case of Mr.Harshal s/o Uddhav Aarvikar (supra). For this reason, the subsequent Judgment of this Court in the case of Satish Vasant Salpekar (supra) upon which reliance is placed by respondent No.1, cannot give much assistance to the said respondent while opposing present writ petition.
21. The reliance placed by the learned counsel for respondent No.1 on Judgment of this Court in the case of Sandeep Ram Meghe and others Vrs. Pundlikrao Balaji Gohad (dead) and ::: Uploaded on - 02/03/2020 ::: Downloaded on - 24/03/2020 00:23:40 ::: 13 936-J-WP-596-20.odt others, particularly on para 25 thereof, is misplaced because observations were made by this Court therein, in the factual background of a dispute regarding induction of as many as 49 members in the Society / Trust which allegedly changed the whole fabric of the General Body, thereby influencing the result of the elections to a large extent. In the present case, the Assistant Charity Commissioner was concerned with limited area of enquiry, while considering the application of the petitioner in the present case, as to whether she was similarly situated person like the applicant in Exh.15. The Assistant Charity Commissioner clearly erred in not appreciating the contentions raised on behalf of petitioner and in rejecting the application by a cryptic order.
22. In view of the above, the present petition is allowed. The impugned order passed by the Assistant Charity Commissioner is quashed and set aside. Accordingly, the application filed by the petitioner (Exh.36) is allowed in terms of prayers made therein.
23. Considering the fact that respondent No.1 has initiated the proceedings under Section 41-A of the aforesaid Act seeking direction to the Assistant Charity Commissioner for ::: Uploaded on - 02/03/2020 ::: Downloaded on - 24/03/2020 00:23:40 ::: 14 936-J-WP-596-20.odt holding election of the governing body of the Trust / Society, it would be in the interest of all parties that such an application be decided at the earliest. Accordingly, while allowing the present writ petition, the Assistant Charity Commissioner, Washim is directed to decide the application filed by respondent No.1 bearing Change Report No.428/2015, as expeditiously as possible, and in any case, within the period of eight weeks from today.
24. Rule is made absolute in the above terms.
JUDGE Choulwar ::: Uploaded on - 02/03/2020 ::: Downloaded on - 24/03/2020 00:23:40 :::