Bombay High Court
Mukinda Alias Mukind Nandu Chavan vs The Jt Charity Commissioner Latur And ... on 9 December, 2024
2024:BHC-AUG:29583
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wp12516.23.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 12516 OF 2023
Mukinda @ Mukind Nandu Chavan .. Petitioner
versus
The Jt. Charitiy Commissioner & others .. Respondents
AND
WRIT PETITION NO. 12517 OF 2023
Mukinda @ Mukind Nandu Chavan .. Petitioner
versus
The Jt. Charitiy Commissioner & others .. Respondents
AND
WRIT PETITION NO. 12518 OF 2023
Mukinda @ Mukind Nandu Chavan .. Petitioner
versus
The Jt. Charitiy Commissioner & others .. Respondents
AND
WRIT PETITION NO. 12519 OF 2023
Mukinda @ Mukind Nandu Chavan .. Petitioner
versus
The Jt. Charitiy Commissioner & others .. Respondents
AND
WRIT PETITION NO. 12520 OF 2023
Mukinda @ Mukind Nandu Chavan .. Petitioner
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wp12516.23.odt
versus
The Jt. Charitiy Commissioner & others .. Respondents
AND
WRIT PETITION NO. 12521 OF 2023
Mukinda @ Mukind Nandu Chavan .. Petitioner
versus
The Jt. Charitiy Commissioner & others .. Respondents
AND
WRIT PETITION NO. 12522 OF 2023
Mukinda @ Mukind Nandu Chavan .. Petitioner
versus
The Jt. Charitiy Commissioner & others .. Respondents
Mr. M. B. Kolpe and Mr. S. Y. Patil, Advocates for the Petitioner.
Mrs. A. S. Mantri, AGP for the State.
Mr. V. D. Sapkal, Senior Counsel instructed by Mr. S. R. Sapkal along
with Mr. Onkar Waghule, Mr. A. H. Narke and Mr. Y. A. Jadhav,
Advocates for Respondent No. 3.
CORAM : R. M. JOSHI, J.
DATE : 9th DECEMBER, 2024.
JUDGMENT :
1. Rule. Rule made returnable forthwith.
2. By consent of both sides, Petitions are heard together and decided finally at the stage of admission.
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3. These Petitions are an example as to how an unscrupulous litigant for his personal vested interest can take the judicial process to hostage and continues with the litigation until his own interest is not achieved. Such litigant is also not averse to make in apparently false statements and approbate and reprobate.
4. These Petitions arise out of orders passed by Joint Charity Commissioner (for short 'JCC') while exercising powers under Section 70A of the Maharashtra Public Trusts Act (for short 'the Act') whereby the orders passed by Assistant Charity Commissioner (for short 'ACC') rejecting change reports under Section 22 of the Act for the relevant period are set aside.
5. Petitioner and Respondent No. 3 are real brothers. They claim to be founder trustees amongst others of Banjara Shikshan Prasarak Mandal, Balsur, Tq. Omerga, Dist. Osmanabad, bearing PTR No. F-1868 (Osmanabad), duly registered under the Act which runs educational institutions. Proceedings came to be filed under Section 22 of the Act in respect of change reports bearing Nos. 292/2015, 293/2015, 294/2015, 295/2015, 296/2015, 297/2015 and 298/2015 for the period 1993-1996, 1996-1999, 1999-2002, -4- wp12516.23.odt 2002-2005, 2005-2008, 2008-2011 and 2011-2014 respectively. These change reports were filed by Respondent No. 3. Undeniably, Petitioner himself was the President of the trust for this entire period from 1993 to 2014. Office bearers/Managing Committee were elected since 1993 and change was sought approval from the ACC. Admittedly, there are 7 founder members of the trust and the Managing Committee also did not change for substantial period. None of the members raised objection with regard to the said change but for present Petitioner.
6. Learned ACC, after hearing both sides, rejected all these change reports. Respondent No. 3 preferred revision under Section 70A of the Act before JCC taking exception to the said orders. Learned JCC, by impugned judgment and order, allowed the revision and on setting aside order passed by ACC, allowed change reports. Petitioner, being aggrieved by the said order, preferred these Petitions.
7. Learned counsel for Petitioner submits that in view of the judgment of Coordinate Bench of this Court in case of Maharashtra Gandhi Smarak Nidhi, Pune vs. Maharashtra Gandhi Nidhi (Central), -5- wp12516.23.odt 2011(4) Mh.L.J. 295, powers under Section 70A are discretionary and same must be exercised judiciously. It is his submission that it was not open for the revisional authority to overturn the findings recorded of the facts by the learned ACC. It is his submission that on the basis of evidence on record learned ACC has rightly rejected change reports. It is his submission that in view of the judgment of Division Bench of this Court in case of Rajabhau Damodar Raikar vs. Assistant Charity Commissioner, Pune, 2015(4) Mh.L.J. 275, there is no question of deciding application or proceedings under Section 22 of the act by consent of the parties and it is incumbent on the part of the authority to conduct inquiry as contemplated therein. He drew attention of the Court to the findings recorded by learned ACC to the effect that there is no evidence to indicate that the procedure laid down by constitution of the trust was valid and as such no fault can be found with the order of ACC rejecting the change reports.
8. Learned Senior Counsel appearing on behalf of Respondent No. 3 opposed the said contention by submitting that the present Petitioner at all stage of proceedings has made false statement to suit his convenience. It is his submission that a party -6- wp12516.23.odt cannot be approbate or reprobate. By placing reliance on judgment of Hon'ble Apex Court in case of State of Punjab vs. Dhanjit Singh Sandhu, AIR 2014 Supreme Court 3004, it is submitted that the Petitioner is estopped from taking exception to the order passed by the revisional authority on the principle of estopple. It is his submission that Petitioner is estopped from challenging order passed by Revisional Authority (JCC), in view of affidavit filed by Petitioner before it not only giving no objection for allowing the revision application but also making a positive statement on oath that the procedure for election was proper and he participated in meeting. It is his submission that a false statement is made before this Court too on oath. He drew attention of the Court to order dated 14.10.2024 wherein this Court had directed the Petitioner to file affidavit indicating as to whether he wants to retract the statement made on oath in the affidavit before JCC, however instead of making such statement, it is now sought to be contended that he does not know the contents of the affidavit nor the said affidavit was produced by him before JCC. By relying upon roznama of the proceedings before JCC, placed on record by Petitioner himself before this Court, it is pointed out that Advocate Mr. Mundhey was appearing on behalf of the Petitioner before said authority and that infact he filed said -7- wp12516.23.odt affidavit on record. Thus, it is his contention that on this count alone Petitions deserve to be dismissed.
9. On merit, learned Senior Counsel submits that this is not a case wherein the order is sought to be passed by the revisional authority on the basis of no objection recorded by the Petitioner but evidence appearing on record is considered while overturning the order passed by ACC. In order to support his submission that having regard to the scope of Section 70A, the Charity Commissioner has unrestricted powers for conducting an inquiry. It is his submission that the powers are exercisable even suo motu and the said powers are to be exercised in order to see that the ends of justice are not defeated. To support his submission, he relied upon judgment of Division Bench of this Court in case of Mohamad Haidar Mujawar vs. Jamal Haidar Mujawar and others, 1969 AIR (Bom.) 328. He further submits that Respondent No. 3 adduced his evidence before ACC and that there is no rebuttal of his evidence from the Petitioner. He drew attention of the Court to the evidence on record which indicates that there are suggestions made in no uncertain terms with regard to the number of members of the trust during the relevant period. It is his submission that in view of said suggestions, which -8- wp12516.23.odt being the case of Petitioner himself before ACC, it was not justified for ACC to reject the application. He also drew attention of the Court to the fact that the Petitioner is the one who was President of the trust for this entire period and that he has enjoyed the said post throughout. However, owing to the dispute with Respondent No. 3, objection is raised before ACC for change report. He also drew attention of the Court to the fact that other members also filed affidavit before revisional authority stating the fact that there was proper conduct of election of the office bearers of the trust. Thus, it is his submission that this is a fit case not only for rejection of the Petitions but also for initiating action against the Petitioner for making false statement before this Court on oath so also abusing the process of law.
10. Having regard to the nature of the provisions under Section 22 of the Act, before accepting any change report, it is incumbent on the part of the ACC to conduct an inquiry. The Division Bench of this Court in case of Rajabhau (supra) has held in no uncertain terms that such proceedings has to be decided after holding enquiry in the manner provided by Rule 7 of Maharashtra Public Trust Act and no change report can be accepted upon ACC or -9- wp12516.23.odt Dy.C.C., after holding enquiry, comes to the conclusion that the change reported has occurred.
11. Here in this case, ACC as well as JCC passed orders on the basis of material on record and not by consent of parties. An enquiry has been done as contemplated by the Act. It is only when JCC found that the evidence on record is not considered in proper perspective and it has led to miscarriage of justice, interference is caused therein. It is pertinent to note that for the period from 1993 onwards till 2014, Petitioner was the President of the trust. Though he did not enter into witness box and adduce evidence in these proceedings before ACC, however, in the proceeding filed by him before ACC under Section 22 of the Act bearing CR Nos. 3531/2017, on oath he admitted the fact that for this entire period he was President and that he also acted as President throughout. This fact clearly indicates that the Petitioner, after taking benefit of his post on being elected for all these years on the basis of process then followed, now is trying to dispute the same, without any justification. Apart from this, the cross-examination conducted by the Petitioner of Respondent No. 3 before ACC indicates that he has sought to raise objection with regard to the non-receipt of notice of the meeting
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wp12516.23.odt wherein he himself was elected. It is pertinent to note that after Respondent No. 3 adduced his evidence indicating notice being issued to all concerned, no evidence was adduced by the Petitioner to rebut the said contention. Infact, this stand taken by him is falsified by his own affidavit filed before JCC, wherein he admits that he was present in the meeting. Needless to say that admission of any person is best evidence of proof of the relevant fact. Learned ACC has referred to the challenge to the number of members sought to be claimed by Respondent No. 3 during this period. It is held by the said authority that the claim of Petitioner of number of members is not correct and therefore change reports deserve to be rejected. ACC, however, has failed to properly appreciate the evidence on record before it. Perusal of evidence more particularly cross-examination of Respondent No. 3 conducted on behalf of Petitioner clearly indicates that from time to time the number of members of the trust so also the said persons was confirmed. The suggestion made to the other side during cross-examination binds the party making such suggestion.
12. On the other hand, learned JCC, while allowing the revision, has made following observations :-
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wp12516.23.odt "8. First of all, it is clear that the old body of the managing committee continued. The consent letter and no objection letter at Exh. 05 and 06 respectively show that except respondent Mukund Chavan, all other 06 members signed these letters. The proceeding of the general body meeting at Exh. 25 shows that the meeting held on 20.05.1993 and the notice at Exh. 24 served on all the members including respondent Mukund Chavan. All other members except the respondent no one come forward to say that they have not received the notice and they were not present at the meeting. It is worth noting that the present respondent continued his office as a president of the Trust based on all these election processes completed in the relevant time. At this stage, he is going to deny his signatures on the papers. Neither he has filed a police complaint against the other members about his alleged false signatures nor had he denied continuing the post of president. Therefore, there is no substance in the plea of the respondent that the process is not completed lawfully.
These observations of JCC reflect the correct facts. It was absolutely necessary for the ACC to take into consideration the fact that the Petitioner was President of the Trust and he continued his office in that capacity in all these election processes which were completed at the relevant time. It is only at belated stage that too after there occurred dispute with Respondent No. 3, it is sought to be
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wp12516.23.odt claimed that the signatures appearing on record are not of his. Though it is sought to be argued by learned counsel for the Petitioner that the observations made in the above paragraph with regard to non-filing of police complaint is incorrect, it is pertinent to note that the Petitioner had filed such complaint, however, after issuance of process by learned Judicial Magistrate First Class, the said complaint was withdrawn within a period of 4 months thereof. Admittedly, when the order was passed by the revisional authority, the said criminal proceeding was not in existence. This Court, therefore, finds no perversity in the findings recorded by JCC since at the time of passing of the order no such complaint existed.r
13. Learned JCC, while passing impugned orders has made reference of the fact that it is undisputed that in the year 1993 there were 7 members, in the years 1996 and 2002 there were 13 members, in the year 2005 there were 18 members of the trust and in the years 2008 and 2011, there were 20 members. This observation is perfectly legal as the same has been made on the basis of cross-examination conducted by the Petitioner of Respondent No. 3 in the proceedings before ACC. Perusal of said record indicates that there is specific suggestion in the cross-examination about these
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wp12516.23.odt persons and the number being the members of the trust at the relevant time. Suggestion made in the cross-examination is the case of the party who makes such suggestion. As recorded hereinabove, Petitioner did not adduce any evidence in the said proceeding to rebut the contention of Respondent No. 3. Thus, on the basis of evidence on record, observations made by learned JCC with regard to the number of members of trust cannot be faulted with. The Petitions filed challenging impugned orders deserve dismissal since they sans merit.
14. It is recorded in the order by learned JCC that the Petitioner appeared in the proceedings and filed affidavit and prayed for grant of revision application. At this stage, it would be relevant to take note of the contents of said affidavit which read thus :-
;kr eh] eqdhank uanq pOgk.k] o; % 70 o"ksZ] /kank 'ksrh] jk- cylwj] rk- mejxk] ft- mLekukckn dkj.ks lR; izfrKsoj dFku djrks dh] eh catkjk f'k{k.k izlkjd eaMG cylwj] rk- mejxk] ft- mLekukckn uksan.kh dz- ,Q&1868 ;k uksan.khd`r laLFkspk laLFkkid fo'oLr gksrks- lu 2002 rs 2005 ;k dkyko/khe/;s cny vtZ d- 295@2015 gk cny vtZ nk[ky dsysyk gksrk-
lnjpk cny vtZ ;ksX; o dk;ns'khj v'kk fuoM.kwdhoj vk/kkjhr gksrk- ijarw] eh lnj cny vtkZl xSjletwrhrwu o lafpokalkscr okn
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wp12516.23.odt >kY;keqGs foukdkj.k gjdr ?ksrysyh gksrh] R;keqGs lnjpk cny vtZ ukeatwj >kysyk gksrk- (emphasis supplied) lnjP;k vkns'kkfo#/n vtZnkj ;kauh gyyhph fjOghtu nk[ky dsysyh vkgs- lnjpk cny vtZ gk ;ksX; o dk;ns'khjp gksrk] R;k laHkse/;s eh Lor% mifLFkr gksrks- R;keqGs lnjpk cny vtZ gk eatwj gks.ksp vko';d gksrs- R;keqGs vtZnkj ;kauh nk[ky dsysyh fjOghtu gh eyk ekU; vlwu R;ke/khy ekx.khizek.ks fjOghtu eatwj dj.;kr ;koh o cny vtZ dz- 295@2015 eatwj dj.;kr ;kok-
(emphasis supplied) ojhy laiw.kZ etdwj [kjk o cjkscj vkgs-
15. Perusal of the above affidavit filed on oath by Petitioner indicates that not only he has recorded no objection for allowing of revision application, but has also stated on oath that the change report is legal and valid. This affidavit does not show that any compromise was arrived at between the parties and the said affidavit was filed subject to compliances of compromise by them. Moreover he made specific statement that in the meeting he himself was present. Even in the Petition, Petitioner has taken following ground :-
XVIII. That, the petitioner and respondent No. 3 are real brothers, the present petitioner has filed RCC No. 65/2022 before the Ld. JMFC Omerga and the Ld. JMFC Omerga had issue process, but the proceedings before the
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wp12516.23.odt JMFC were not pressed by the present petitioner as there was oral settlment and accordingly present petitioner has also filed affidavit before respondent No. 1 giving consent to allow the revision. But respondent No. 3 has not acted in terms of settlement, therefore the same was ignored by the respondent No. 1 while giving the impugned judgment.
This paragraph also clearly shows that the Petitioner admits that he filed affidavit before JCC giving consent to allow the revision. However, pursuant to the directions issued by this Court on 04.10.2024, an affidavit dated 18.11.2024 came to be filed by Petitioner, it is for the first time a different stand is sought to be taken that he has not appeared before Notary nor has affirmed disputed affidavit on oath. It is also claimed that the affidavit was drafted and executed by Respondent No. 3. The contents of said affidavit are reproduced thus :-
"2. I say and submit that, the disputed Affidavits dated 11/05/2022 are placed on record by the Respondent No. 3 before the Ld. Jt. Charity Commissioner.
3. I say and submit that, the present Petitioner has not appeared before the Notary nor he has affirmed the said disputed affidavit on oath before the Notary nor
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wp12516.23.odt there was affirmation of the Petitioner before the Ld. Jt. Charity Commissioner by the present Petitioner.
4. I say and submit that, the affidavits which are placed on record are drafted and executed by Respondent No. 3 before the Notary. The Petitioner was neither present nor he has administered oath before the Notary.
16. Even learned counsel for Petitioner, by relying upon roznama of proceedings before JCC, has sought to argue that the affidavit was not filed by Petitioner but it was placed before JCC by Respondent No. 3. The said contention of learned counsel for Petitioner is however falsified in view of the document filed by him before the Court i.e. roznama of proceedings before JCC. The said roznama shows that the date on which the affidavit was filed, only Advocate Mr. Mundhey who was representing Petitioner was present. Except for him, all other parties were absent. It is thus clear that the said affidavit is filed by Petitioner himself through his Advocate Mr. Mundhey. Moreover, there is observation in the order of JCC to the effect that the affidavit being filed by Petitioner himself in the said proceeding and there is no reason to discard/disbelieve the said observation. This Court, therefore, finds substance in the contention of learned Senior Counsel for Respondent No. 3 that the Petitioner for
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wp12516.23.odt his vested interest has not only misguided the authorities below and also made false statements on oath but also sought to make false submissions before this Court to cover up his actions. It is, therefore, held that the Petitioner had filed affidavit voluntarily and fully knowing contents of the same and now the same is sought to be denied to suit his convenience.
17. The question now arises before this Court is as to whether filing of the present Petitions is an abuse of process of law or not. Though there cannot be any dispute about the fact that no proceedings of change report could be allowed on the basis of compromise, question arises as to when the Petitioner had recorded no objection for allowing revision application and whether it is open for him now to change the said order. As stated hereinabove, the affidavit filed before JCC does not indicate that there was any compromise between the parties and therefore, the said affidavit is filed. The said affidavit in no uncertain terms states about the procedure being followed accordingly while conducting relevant elections. Though before ACC objection was raised with regard to his presence in the said meeting, now on oath before JCC it is accepted that he was present in those meetings. Apart from this, the fact that
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wp12516.23.odt he acted as President of the trust for all these years more than sufficiently shows that the objection raised by him before ACC was frivolous. Over and above, these Petitions have audacity to challenge the order passed by JCC. Needless to say that party cannot be permitted to approbate and reprobate and that the principle of estopple is based upon the same. Petitioner, therefore, is wholly unjustified in filing the present Petitions. This Court is of the view that the Petitioner has also made false statement on oath before this Court and sought to misguide it. In such circumstances, it is a fit case for dismissing the Petitions with exemplary costs.
18. In view of above discussion, Petitions stand dismissed with cost of Rs. 25,000/- in each Petition, payable to the Government Cancer Hospital, Aurangabad. Amount of cost be paid within a period of four weeks from today. Petitioner is directed to produce receipts towards payment of costs within 6 weeks. Non payment of cost shall lead to appropriate action against the Petitioner as per law.
19. Rule discharged.
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20. Pending application, if any, does not survive and stands disposed of.
( R. M. JOSHI) Judge dyb