Bombay High Court
Gram Vikas Samittee Shahapur vs Darshanlal S/O Nandlal Malohtra on 26 March, 2009
Author: S.R. Dongaonkar
Bench: S.R. Dongaonkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY:
NAGPUR BENCH: NAGPUR
WRIT PETITION NO.35 OF 2009
PETITIONERS:
1) Gram Vikas Samittee Shahapur, through its elected
President, Shri Bhaduji Bakaram Bhure, age about 70
years, occ : r/o Shahapur Tah & Distt. Bhandara.
2) Sindhu Shripad Krupan, Elected Assistant Secretary
3) Bhaurao Rhushi Ranadive,
4)
Ashok Wamanrao Tibude
5) Narendra Babanrao Palandurkar,
Nos. 2 to 5 r/o Shahapur, Tahsil and dist. Bhandara.
VERSUS
RESPONDENTS:
1) Darshanlal s/o Nandlal Malohtra, age about 44 years, occ
: business, r/o Petrol Pump Thana, P.O. Jawaharnagar,
District Bhandara.
2) Kisan Maroti Dorle, age about 75 years, occ : Cultivator
3) Baburao Vithoba Palandurkar (died)
4) Anand Jairam Khobragade
5) Govindrao Rushiji Randive
6) Nandlal Sardarilal Malhotra
7) Assistant Charity Commissioner, Bhandara
Nos. 2, 4 to 6 r/o Shahapur, Tah & Distt. Bhandara.
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Shri R.L. Khapre, Advocate for petitioners.
Shri V.K. Paliwal, Advocate for petitioners no. 1.
Shri M.G. Bhangde & Shri N.D. Khamborkar, Advocates for
respondent no.1,2,4,5 & 6
Respondent no.3 - dead
Shri Sonare, A.G.P. for respondent no.7.
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CORAM: S.R. DONGAONKAR, J.
CLOSED FOR JUDGMENT ON : 12.3.2009
JUDGMENT PRONOUNCED ON: 26 .3.2009
JUDGMENT
Heard Shri Khapre Advocate and Shri Paliwal, Advocate for petitioners, Shri M.G. Bhangde & Shri Khamborkar, Advocates for respondent no.1,2,4,5 & 6, and Shri Sonare, A.G.P. for respondent no.7 Rule. Made returnable forthwith. Heard finally with the consent of parties.
2) Petitioner no.1 - Gram Vikas Samittee Shahapur, district Bhandara, is an educational trust having registration No. PTR No.F- 4-(B) under the Bombay Public Trust as well as Societies Registration Act. Last election of the trust was held on 15.4.1999. Thereafter, the change report was submitted bearing no.340/1999, which was accepted. The names of the elected trustees were ::: Downloaded on - 09/06/2013 14:27:52 ::: 3 recorded in Schedule I. One of the recorded trustees Shri Nagarikar died, against that vacancy respondent no.1 was elected as Assistant Secretary. The said change report bearing no.80/2001 was accepted on 24.1.2001. As such respondent no.1 came to be recorded as Assistant Secretary. Some allegations are made against him regarding misappropriation etc. Term of the recorded body was to expire on 14.4.2004 as such managing committee passed a resolution that election of the managing committee trustees should be held by appointing independent Election Officer through Assistant Charity Commissioner, Bhandara. Copy of the said resolution is filed along with petition. Application to that effect was filed before the Assistant Charity Commissioner and the order thereon was passed on 5.3.2004. Accordingly Advocate Shri Rahangadale was appointed as Election Officer. It is contended that prior to passing written express order on 5.3.2004, Advocate Shri Rahangadale was appointed as Election Officer by oral direction during the proceedings. It may be mentioned that said application bearing no.144/2004 was filed by all the recorded trustees. Said election officer then declared his election programme, however, as he was appointed by oral direction; he declared such programme on 1.3.2004 i.e. prior to actual written order passed by Assistant Charity Commissioner on 5.3.2004. According to the petitioners, the election officer so appointed held elections on 11.4.2004. Even respondent no.1 participated in that election programme but withdrew his name because there was no majority in his favour. It is contended that on 14.4.2004 the office bearers of the petitioner ::: Downloaded on - 09/06/2013 14:27:52 ::: 4 no.1 trust out of the members elected to the management committee on 11.4.2004; were elected and on 15.4.2004, they took over the charge of the trust and on 17.4.2004 the change report number 336/2004 was filed before Assistant Charity Commissioner. It is alleged that respondent no.1 raised objection to this change report and filed his separate change report bearing no.591/2004 before Assistant Charity Commissioner on 14.7.2004, wherein he himself was shown as an Election Officer and shown as elected secretary. It is alleged that he had prepared bogus proceedings of the election of trust dated 15.4.2004 and filed false change report on that basis bearing no.591/2004. Enquiry in these two change reports continued for quite some time. On 25.11.2007 the Secretary of the petitioner no.1 trust Babanrao Palandurkar expired. In his place as per constitution Deputy Secretary, Narendra Palandurkar was elected as Secretary and accordingly change report no.964/2004 was filed. This Narendra Palandurkar was arrested by police on 13.4.2008 in a case of one murder. It is alleged that thereafter, respondent no.1 withdrew his change report and so Assistant Charity Commissioner directed the said change report to be decided as sue motu enquiry as per circular of the Charity Commissioner, Maharashtra State. After necessary enquiry, learned Assistant Charity Commissioner passed the impugned order whereby he rejected both change reports filed by petitioners bearing no.336/2004 as well as sue motu Change Report 147/2004. Change report submitted by respondent no.1 was already withdrawn. It was further directed by the Assistant Charity ::: Downloaded on - 09/06/2013 14:27:52 ::: 5 Commissioner that respondent no.1 shall enrol new members within 2 months and conduct elections and file change report as per that election. These directions were given by the Assistant Charity Commissioner respondent no.7 specifically under section 41-A of the Bombay Public Trust Act and besides others.
3) It may be stated that petitioners have filed appeal against order of rejecting their change report before Joint Charity Commissioner, Nagpur and the same is pending. In that appeal they have filed an application for grant of stay which is also pending.
4) Impugned order reads thus:
"It is sue motu directed under section 41-A that Shri Darshanlal Nandlal Malhotra, the Joint Secretary in old executive body should hold election of executive body within two months by making new members of the society and submit change application."
5) Only clause 3 of the impugned order i.e. direction under section 41-A of the Bombay Public Trust Act to enrol members within 2 months, conduct elections and file change report by respondent no.1, is challenged in this petition contending that the said direction being under section 41-A of the Bombay Public Trust Act, could not be challenged in an appeal under section 70 of the Bombay Public Trust Act before the Joint Charity Commissioner, which is preferred for challenging the order of rejecting their ::: Downloaded on - 09/06/2013 14:27:52 ::: 6 change report.
6) It is also necessary to note at this stage that respondent no.1 had earlier preferred an application under section 41-A of the Bombay Public Trust act bearing application no.474/2008. He had sought following reliefs in that application:
"PRAYER:
It is therefore, humbly prayed that this Hon'ble Authority be pleased to give directions to applicant during the pendency of the change report as under:
(a) to give direction to the applicant, who is the recorded joint secretary and Secretary elected as per change report No.591/04 to manage the affairs of the Trust and to discharge his duty as Secretary as mentioned in the Constitution of the Trust in view of the death of recorded Secretary deceased Babanrao Palandurkar
(b) to give direction to the applicant to operate the Bank Account along with joint signature either of recorded President Shri Kisan Maroti Dorle or Treasurer Shri Nandlal Sardarilal Malhotra.
(c ) any other direction as deemed fit, proper and suitable in the facts and circumstances of this case"
7) A detailed reply was filed by some of the petitioners on that application. That application was decided by the learned Assistant Charity Commissioner, wherein the following order was passed:
"ORDER 1- The application of the applicant at Ex. 1 is hereby partly allowed.
2- The prayer of the applicant in his ::: Downloaded on - 09/06/2013 14:27:52 ::: 7 application Ex.1 to act as Secretary according his Change Report bearing Inquiry No.591/2004 is hereby rejected as said Change Report is subjudice.
3- Issue direction to the applicant Shri Darshanlal Nandlal Malhotra to manage the affairs of the trust in the capacity of Secretary till the decision of the Change Reports bearing inquiry Nos. 336/2004, 591/2004 and 964/2007.
4- Issue direction to the applicant Shri Darshanlal Nandlal Malhotra to operate the Bank accounts of the trust as per bye-laws of the trust either with the joint signature of recorded President Shri Kisan Maroti Dorle or recorded treasurer Shri Nandlal Sardarilal Malhotra.
5- Issue direction to the applicant Shri Darshanlal Nandlal Malhotra, not to obtain any loan on the property of the trust, without prior permission of the Hon'ble Joing Charity Commissioner, Nagpur 6- Issue direction to the applicant Shri Darshanlal Nandlal Malhotra, not to mortgage or sale the property of the trust without pre-requisite permission of the Hon'ble Joint Charity Commissioner, Nagpur.
7- Issue direction to the applicant Shri Darshanlal Nandlal Malhotra to keep and maintain the proper accounts of the trust since the date of receiving all these directions, to avoid mis- management.
8- Issue direction to the applicant Shri Darshanlal Nandlal Malhotra that, this is only temporary time being arrangement till the decision of Change Report bearing Inquiry Nos. 336/2004, 591/2004, and 964/2007 which are pending before this Court.
9- Parties to bear their own cost.
10- Parties to take note."
8) Petitioners challenged that order by filing Writ Petition
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No.3329/2008. By judgment and order dated 25.9.2008, this Court allowed the writ petition and impugned order was quashed and set aside. Learned Assistant Charity Commissioner, Bhandara was however, directed to decide the change report no.336/2004 and 591/2004 i.e. filed by petitioners as well as respondent no.1. Respondent no.1 challenged that order in LPA NO.329/2008. In L.P.A. on stay application; following order was passed:
"3- The respondents challenged the order by preferring Writ Petition No.3329/2008. By order dated 8.8.2008 the learned Single Judge stayed the order of the Assistant Charity Commissioner.
Thereafter, by order dated 25.9.2008 the learned Single Judge allowed the writ petition, quashed and set aside the order of the Assistant Charity Commissioner and directed him to decide the Change Report Nos. 336/2004 and 591/2004 within a period of four months from the date of order. Thus, it seems that the appellant is not managing the affairs of the trust right from 8.8.2008. In view of this, we do not think it expedient to stay the order of the learned Single Judge. The application is, therefore, rejected.
4- Needless to mention that while deciding the Change Reports the Assistant Charity Commissioner shall not be influenced by any observations made by the learned Single Judge or by any other authority."
9) Said LPA is still pending and appellant therein i.e. respondent no.1 herein is held to be not managing the affairs of the trust right from 8.8.2008. Thus, it would be seen that presently the appeal against order of rejecting change report of the petitioners by the Assistant Charity Commissioner, Bhandara is pending before the ::: Downloaded on - 09/06/2013 14:27:52 ::: 9 Joint Charity Commissioner, Nagpur [appellate authority) and L.P.A. is pending against the order of this court setting aside order of Assistant Charity Commissioner allowing the respondent no.1 to manage the affairs of the petitioner no.1 trust and the petitioners are challenging the clause 3 of the impugned order by which the respondent no.1 was directed to make / entrol members of the petitioner no.1 trust and hold elections within a period of 2 months and to file change report which is called "a direction under section 41-A of the Bombay Public Act."
10) I have heard learned counsel for the parties in extenso.
11) I have also considered the authorities cited by them. I propose to refer them at the relevant place during the course of this judgment.
12) Learned counsel for the petitioners Shri R.L. Khapre has submitted that though the appeal against impugned order is pending and stay application is preferred therein, Joint Charity Commissioner has no jurisdiction to consider and stay the clause 3 of the impugned order against which no appeal can be preferred.
The same has to be challenged by way of writ petition as that order is under section 41-A of the Bombay Public Trust Act. Further according to him, considering the nature and scope of the provisions of section 41-A of the Bombay Public Trust Act, Assistant Charity Commissioner should not have passed such an order to enrol ::: Downloaded on - 09/06/2013 14:27:53 ::: 10 members, hold election and submit the change report. According to him, power to enrol members and hold elections could not be given to respondent no.1 as his term as an assistant Secretary was already over and he had an interest adverse to the petitioner no.1 trust and petitioners and therefore, such direction was not warranted at all. In fact power to appoint trustees, supersede trustees , etc. is given to Joint Charity Commissioner under section 47 of the Bombay Public Trust Act. All that Assistant Charity Commissioner was to do, was to refer the matter to the Joint Charity Commissioner for appointment of trustees, if any. In any case such direction could not have been given under section 41-A of the Bombay Public Trust Act.
Further according to him elections of the petitioners for which change report was submitted which is now pending in appeal was correctly held as per orders of the Assistant Charity Commissioner by Election Officer Shri Rahangadale Advocate and therefore, when the matter could have been taken in appeal, the Assistant Charity Commissioner should have refrained from passing such order. According to him, in any case the said clause of the order was bad at law and is liable to be struck down by this court in its extra- ordinary writ jurisdiction. According to him, the respondent no.1 was a party to the application before the Assistant Charity Commissioner by which it was requested to appoint independent election officer for holding election. He had fraudulently submitted change report showing that he had conducted elections on 15.4.2004 and it shows that the members were enroled to secure the orders and holding elections through him only. According to ::: Downloaded on - 09/06/2013 14:27:53 ::: 11 him, this was a trick played by respondent no.1 to have a back door entry and to have complete control over the petitioner no.1 trust, which he could not have obtained except for such orders; therefore, Assistant Charity Commissioner 's order is clearly an order tainted with an oblique motive to favour the respondent no.1, for allowing to have full control over the petitioner no.1 trust. He has raised several contentions as to how his conduct was and how he had secured that order. I need not place the same on record for the simple reason that this court is considering only the validity of clause (iii) of the impugned order which is challenged in this petition . Rest of the matter is to be considered by the Joint Charity Commissioner in appeal. Suffice it to say that that it is the contention of the learned counsel for the petitioner that the said clause could be challenged in writ petition under articles 226 & 227 of the Constitution of India only. It was wholly without jurisdiction as it is not based on the principles under section 41-A of the Bombay Public Trust Act and it is only to make the respondent no.1 to go ahead with the control of the trust with impunity to exclusion of others, even life members and founder members. He has relied on some authorities on this aspect, which I would consider at the proper place.
13) As against this, learned counsel for respondent no.1 Shri M.G. Bhangde, has submitted that clause 3 of the impugned order is pending for consideration in appeal before the Joint Charity Commissioner. Further according to him, clause 3 of the impugned ::: Downloaded on - 09/06/2013 14:27:53 ::: 12 order which is assailed in this petition is operative only when the order of rejection of change report of the petitioner is maintained in appeal i.e. when appeal of the petitioners is dismissed by Joint Charity Commissioner. Therefore, this writ petition is not maintainable; firstly because the alternate remedy is available and availed by the petitioner and secondly even if writ petition is maintainable; it is premature because unless the appeal of the petitioners is dismissed that clause 3 of the order would not be operative. Therefore, there is no illegality, warranting exercise of the extraordinary writ jurisdiction by this court. In short it is his submission that this petition is liable to be dismissed as not maintainable. He has also relied on some authorities which I would discuss at the appropriate place during the course of judgment.
14) Learned A.G.P. for the respondent no.7, has supported the order of the learned Assistant Charity Commissioner, impugned in this petition for the reasons therein.
15) During the course of the hearing; I was informed that the hearing of the stay application before the Joint Charity Commissioner is fixed on 17.4.2009 and the said appeal is not likely to be heard in near future. As this matter is heard at length; I am inclined to decide the issues raised by the parties in this petition.
16) Adverting to the objection of the learned counsel for respondent no.1 about the maintainability of this petition, it would ::: Downloaded on - 09/06/2013 14:27:53 ::: 13 be seen that he has relied on the judgment of the Apex Court reported in (1995)1 SCC 642 Bombay Metropolitan Region Development Authority, Bombay ..vs.. Gokak Patel Volkart Ltd. and others to contend that this court can not exercise powers under article 226 of the Constitution of India when alternative remedy is available and it has been exhausted. According to him, writ petition filed during the pendency of the petitioner's appeal before statutory forum, was not maintainable. He has relied on the observations of the Apex Court in paragraph 12 and 13 of the said judgment which read thus:
"12- The contention of the appellant in this appeal is that in the first place the writ petition should not have been entertained. The writ petitioner had an adequate alternative statutory remedy. The writ petitioner had in fact already taken advantage of alternative remedy provided by the statute and had preferred an appeal against the judgment of the Tribunal. While the said appeal was pending the writ petitioner invoked the writ jurisdiction of the Bombay High Court praying more or less the same remedy has was prayed in the appeal.
13- We are of the view that the point taken by the appellant is of substance. This is a case, where there is not only the existence of an alternative remedy but the writ petitioner actually had availed of that remedy. The writ petitioner's appeal before the statutory authority was pending. In that view of the matter this writ petition should not have been entertained."
17) I am further taken through the judgment of the Apex Court (1977)1 SCC 1 Jai Singh ..v.s. Union of India and others ::: Downloaded on - 09/06/2013 14:27:53 ::: 14 wherein in paragraph 4 it has been observed :
"4- The High Court dismissed the writ petition on the ground that it involved determination of disputed question of questions of fact. It was also observed that the High Court should not in exercise of its extraordinary jurisdiction grant relief to the appellant when he had an alternative remedy. After hearing Mr. Sobhagmal Jain on behalf of the appellant, we see no cogent ground to take a view different from that taken by the High Court. There cannot, in our opinion, be any doubt on the point that the extent of purity of the gypsum won by the appellant is a question of fact. It has also been brought to our notice that after the dismissal of the writ petition by the High Court, the appellant has filed a suit, in which he has agitated the same question which is the subject matter of the writ petition. In our opinion, the appellant cannot pursue two parallel remedies in respect of the same matter at the same time."
to contend that when alternate remedy is available & in fact being availed High Court should not interfere with such orders.
18) As against this learned counsel for the petitioner has relied upon the judgment of this court in 2008(3) Bombay Cases Report 76 (D.B.) Dinkar Shankarrao Patil ..vs.. Sheshrao Shankarrao Patil and 2008 (2) Mh. L.J. 78 Raghunath Patil ..vs.. State of Maharashtra & ors. (S.B.). According to him, in both these cases, it was held that object of section 41-A of the Bombay Public Trust Act is only to empower Assistant Charity Commissioner to issue certain directions in the circumstances provided under section 41-A and not otherwise. That power cannot be extended for appointment of trustees and such other matters. According to him, ::: Downloaded on - 09/06/2013 14:27:53 ::: 15 if such wrong jurisdiction is exercised by Assistant Charity Commissioner by invoking powers under section 41-A of the Bombay Public Trust Act though remedy of appeal is available for certain part of the orders, writ petition can, still, be filed to challenge the said order or part of that order, particularly under section 41-A of the Bombay Public Trust Act; when it exceeds jurisdiction.
19) Learned A.G.P. has nothing to say in this regard.
20) In order to appreciate rival contentions of the parties in this regard, it is necessary to refer to the impugned order. On perusal of that order it would be seen that the Assistant Charity Commissioner while deciding the change report has observed that, as both change reports were rejected, unless the election is held, the working of the petitioner No.1 trust should go on and as the secretary is dead and deputy secretary did not take any active part in the proceedings, he is appointing respondent no.1 to enrol members, according to rules and conduct elections. It clearly seems that he has lost sight of the aspect, as to whether there were any old- life members or founder members available in the petitioner no.1 trust.
21) Before adverting to the contentions of the learned counsel of the parties, the observations of the Apex Court in (1995)1 SCC 642 Bombay Metropolitan Region Development Authority, Bombay ::: Downloaded on - 09/06/2013 14:27:53 ::: 16 ..vs.. Gokak Patel, Vokart Ltd. and others, in paragraph 12 and 13 which are pressed into service by the learned counsel for the respondent need to be seen. Vide excerpts above; it would be seen that the entertaining of writ petition would be barred if the petitioner wants to invoke writ jurisdiction of the High Court, praying more or less for the same remedy, as it is prayed in the statutory appeal.
22) In the present case there is no dispute that the matter of Change Report, after the decision of the Assistant charity Commissioner, is pending for consideration on merits before the Joint Charity Commissioner in appeal. Question is regarding clause 3 of the impugned order, which I have extracted above. By impugned order (clause 3), it is specifically directed that the respondent no.1 shall make the new members and within 2 months he should hold elections of managing committee and file the change report. It is not directed that this part of order shall be effective only if no appeal is preferred by petitioners or after the period of appeal
23) Learned counsel for the respondent has submitted that this direction was to come into force "only" after the change report filed by the petitioner has been finally rejected. Even otherwise, if the members are to be made, they would be required to be made after complying with the relevant provisions of bye-laws of the trust and therefore, the said order would be operative only subject to decision of the appeal in respect of earlier clauses of the impugned ::: Downloaded on - 09/06/2013 14:27:53 ::: 17 order.
24) This contention ex-facie seems quite attractive for leading to the inference that this court may not exercise the extraordinary writ jurisdiction of this court. However, the fact remains that the directions issued under section 41- of the Bombay Public Trust Act, can not be a subject matter of appeal before the Joint Charity Commissioner, as the appeal is only provided for the orders in respect of the change report under section 70 of the Bombay Public Trust Act.
25) At this stage it is necessary to note the provisions of section 41-A and the nature of powers conferred on the Assistant Charity Commissioner in the said provision which has been the subject matter of the decision of this court in 2008 (3) Bombay Cases Report 676 Dinkar Shankarrao Patil ..vs.. Sheshrao Shankarrao Patil and 2008 2 Mh.L.J.78 Raghunath Motiram Patil ..vs.. State of Maharashtra & others.
26) Section 41-A of the Bombay Public Trust Act is reproduced below:
41-A Power of Commissioner to issue directions for proper administration of the trust. (1) Subject to the provisions of this Act, the Charity Commissioner may from time to time issue directions to any trustee of a public trust or any person connected therewith to ensure that the trust is properly administered, and the income thereof is properly accounted for or duly appreciated and applied to the objects and for the ::: Downloaded on - 09/06/2013 14:27:53 ::: 18 purposes of the trust; and the Charity Commissioner may also give directions to the trustees or such person that if he finds any property of the trust is in danger of being wasted, damaged, alienated or wrongfully sold, removed or disposed of. (2) It shall be the duty of every trustee or of such person to comply with the directions issued under sub section (1)"
27) In paragraph 8 of the judgment in Dinkar's Case Division Bench of this Court has observed thus:
"8. Since the question involved in this writ petition is in respect of the powers and jurisdiction of learned Assistant charity Commissioner to issue directions under section 41-A of the said Act, it would be appropriate to consider the provision laid down under the said section, which is as under:
41-A Power of Commissioner to issue directions for proper administration of the trust. (1) Subject to the provisions of this Act, the Charity Commissioner may from time to time issue directions to any trustee of a public trust or any person connected therewith to ensure that the trust is properly administered, and the income thereof is properly accounted for or duly appreciated and applied to the objects and for the purposes of the trust; and the Charity Commissioner may also give directions to the trustees or such person that if he finds any property of the trust is in danger of being wasted, damaged, alienated or wrongfully sold, removed or disposed of. (2) It shall be the duty of every trustee or of such person to comply with the directions issued under sub section (1)"
Plain reading of sub section (1) of section 41-A makes it clear that the learned Charity Commissioner may from time to time issue directions to any trustee of a public trust or any person connected therewith to ensure that the trust is properly accounted for or duly appropriated and applied to the objects and for ::: Downloaded on - 09/06/2013 14:27:53 ::: 19 the purposes of the trust. It is further provided that the Charity Commissioner may also give directions to the trustees or such person that if he finds any property of the trust is in danger of being wasted, damaged, alienated or wrongfully sold, removed or disposed of. The directions as contemplated under section 41-A of the Act, which may be issued by the learned Charity Commissioner from time to time are to be issued to any trustee or any person connected therewith or to such person that he feels any property of the trust is in danger of being wasted, damaged, alienated or wrongfully sold, removed or disposed of. Sub section (1) of section 41-A has thus clarified the persons to whom the directions may be issued by the Charity Commissioner. (Emphasis supplied) "Trustee" is defined under section 2(18) of the said Act, meaning thereby that a person in whom either alone or in association with other persons, the trust property is vested and includes a manager. Expression "Manager" is also defined under sub-
clause (8) of section 2 of the said Act. "Person connected"- a phrase employed under sub-section (1) of section 41-A of the said Act is not defined under the provisions of the said Act. Phrase - "such person", which is subsequently employed in sub-section (1) of section 41-A of the Act is also with some objective. If the Charity Commissioner finds that any property of the trust is in danger of being wasted, damaged, alienated or wrongfully sold by "such person" he may issue directions to such persons. While issuing such directions, learned Charity Commissioner has to keep in mind the objects of the trust and the purposes for which the trust is being established and run. To find out who are the trustees of a particular registered public trust, registered with the Charity organization, is not a difficult task of the Charity Commissioner. such trustees are recorded in the register maintained by the Assistant Charity Commissioner. The Charity ::: Downloaded on - 09/06/2013 14:27:53 ::: 20 Commissioner, thus is in know of such trustees with whom the property of public trust is vested. " Person connected" is not defined under the provisions of this Act, as observed earlier by us. "Such person" a phrase, which is later on used in sub section (1) seems to be qualifying the trustee or person connected therewith (trust). Activity of such trustee or "person connected", if Charity Commissioner, finds of causing damage, alienation, wastage etc. to trust property, he may issue such directions from time to time. Thus, prime importance seems to have been given under section 41-A of the said Act to prevent wastage, damage, alienation or disposal of the trust property, either by the trustee of the registered public trust or "person connected" with such trust. Removal of trustees, appointment of trustees or committee, to look after the affairs of the trust are not the powers vested with the Charity Commissioner under section 41-A of the said Act."
28) Further the observations in paragraph 10 of the said judgment can also be noted:
"10. The administration of the trust vests with the Board of Trustees, Governing Council, Managing Committee etc. which usually is provided by the Constitution of the trust. Such Managing Council etc. consists of trustees elected in accordance with the scheme or constitution of the trust. The mode of succession to the office of trustees is usually provided by the Constitution of the Trust. The tenure of the trustee and/ or managing committee and / or board of trustees also is provided by the scheme or constitution of the trust. The property of the trust vests in trustees duly elected as such to the Board of Trustees. Specific number of Board of Trustees and office bearers of the Board of Trustees and office bearers of the Board of Trustee is also provided by the scheme or constitution of the trust.::: Downloaded on - 09/06/2013 14:27:53 ::: 21
Some times coram for the meeting of such Board of Trustees is also provided in the constitution day-to-
day affairs of the trust are thus to be run by such Board of Trustees or Governing Council by whatever name it is called in relation to a particular trust. it may happen during the tenure of a particular Board of Trustees/ Committee that a trustee or some trustees of the trust in question disclaim to function as trustee or trustees. Death of trustee or trustees is also inevitable. Contingency of a trustee or some trustees remaining absent from India for a considerable span of time without permission of the Charity Commissioner, Deputy Charity Commissioner or Assistant Charity Commissioner, or by the officer authorized by the State Government also may happen in relation to a particular trust. A trustee or trustees may leave India for the purpose of residing abroad. In a proceeding a trustee or trustee may be declared as insolvent. The trustee or trustees may desire to be discharged from the trust or may refuse to act as a trustee. The Charity Commissioner may be of an opinion that a trustee or trustees become unfit or physically incapable to act as a trustee of the trust. Some time trustee or trustees may accept a position which is inconsistent with his position as a trustee.
All these contingencies have been enumerated under sub-section (1) of section 47 of the said Act, which reads as under:
"47(1)-Any person interested in a public trust may apply to the Charity Commissioner for the appointment of a new trustee, where there is no trustee for such trust or the trust cannot be administered until the vacancy is filled, or for such suspension, removal or discharge of a trustee, when a trustee of such trust, -
(a) disclaims or dies;
(b) is for a continuous period of six months absent from India without the leave of the Charity ::: Downloaded on - 09/06/2013 14:27:53 ::: 22 Commissioner or the Deputy or Assistant Charity Commissioner or the officer authorized by the State Government in this behalf
(c) leaves India for the purpose of residing abroad
(d) is declared as insolvent;
(f) refuses to act as a trustee;
(g) becomes in the opinion of the Charity Commissioner unfit or physically incapable to act in the trust or accepts a position which is inconsistent with his position as trustee;
(h). . . . . .
(i) is convicted of any offence punishable under this Act or an offence involving moral turpitude.
Section 47 confers power upon the Charity Commissioner to suspend, remove or discharge trustee and to vest property to new trustees. Thus, object of section 47 seems to be for smooth functioning of the trust in question. If necessary, Charity Commissioner is vested with the powers to appoint, to suspend, remove or discharge trustees and to vest property to new trustees under section 47 of the said Act.
The procedure for exercise of powers under section 47 is laid down under sub-section (2). Hearing of the parties is contemplated. Enquiry as the Charity Commissioner, may deem fit is also provided. It is further provided under sub-section (2) of section 47 that the Charity Commissioner by order appoint any person as the trustee or may also remove or discharge any trustee for any of the reasons specified in sub section (1) of section 47. In relation to appointment of trustee or trustees, sub section (3) of section 47 is material. After considering these two aspects of the matter that for appointment, suspension, removal or discharge of the trust or trustees, sub section (4) makes it lawful for the Charity Commissioner to direct vesting of any property subject to the trust in the person so appointed as a trustee or trustees. The order passed ::: Downloaded on - 09/06/2013 14:27:53 ::: 23 by the Charity Commissioner, under sub section s (1) and (2) has been conferred with the status of the decree of the Court and appeal has been provided from such decree to the High Court.
Incidently, it is to be noted that the "Court" is defined under sub section (4) of section (2) of the Act meaning thereby, "In the Greater Bombay, City Civil Court and elsewhere, the District Court.". In other words, the order passed by the Charity Commissioner is thus elevated to the status of a decree passed by the Court i.e. the District Court and further appeal has been provided directly to the High Court by sub section (5) of Section 47 of the said Act.
Paragraphs 13, 15 and 17 read thus:
13. The orders purportedly passed by the learned Assistant Charity Commissioner under section 41-A of the Act in routine have been challenged by filing writ petitions time and again before this Court. It is an usual phenomenon that two or more groups are claiming management of the registered public trust.
The change reports, according to them, under section 22 of the said Act have been filed before the learned Assistant Charity Commissioner. Before disposal of change reports under section 22, learned Assistant Charity Commissioner gets the application purportedly under section 41-A from one of the groups or some times from both the groups and instead of disposing and deciding the application under section 22 of the said Act, learned Assistant Charity Commissioner entertains an application purportedly under section 41-A of the Act and orders are being passed.
15. As observed by us in the foregoing paragraphs, such directions under section 41-A of the Act can be given to trustees. Unless such status being a trustee is available with the learned Assistant Charity ::: Downloaded on - 09/06/2013 14:27:53 ::: 24 Commissioner, he shall not entertain an application under section 41-A of the Act and issue directions.
All endeavour should be made for final disposal of the change reports or the applications filed under section 22 of the said Act.
17. We have gone through the application filed by respondent Nos. 1 and 2 purportedly under section 41-A of the said Act in the case on hand. We are of the firm opinion that this application ought not to have been entertained by the learned Assistant Charity Commissioner under section 412-A of the said Act. The order impugned in this writ petition, therefore, needs to be quashed and set aside, with further direction that the Assistant Charity Commissioner, Osmanabad shall decide Change Reports 717 and 722 of 2007 on / or before 18.4.2008. The petitioners as well as respondents 1 and 2 shall remain present before the Assistant Charity Commissioner on 25.2.2008 at 11.30 a.m."
It would be thus obvious that the powers of issuance directions under section 41-A of the Bombay Public Trust Act are quite defined and the said power can be exercised only in the circumstances, referred in the said section and not otherwise. It is difficult to say that the said power can be exercised by the Assistant Charity Commissioner for directing any person to "enrol members, conduct elections and submit the change report".
29) In this regard the Single Bench judgment of this court in 2008(2) Mh.L.J. 78 Raghunath Patil ..vs.. State of Maharashtra & others can also be referred, wherein in paragraph 6 and 7 it has been observed thus:
6. It is apropos to consider the scheme of ::: Downloaded on - 09/06/2013 14:27:53 ::: 25 Chapter -VI of the Bombay Public Trust Act, 1950.
Section 41-A to section 41-E (five sections) were added by Maharashtra Ct No. X of 1971.
Publication is in Maharashtra Government Gazette Part IV dated 29th April, 1971. These sections were made applicable by the Notification No.10611-P from 15th June, 1972. Before this addition, Chapter -VI of the Act was consisting sections from section 37 to 41. Bare look to Chapter -VI shows that it was/is titled as "control". Section 37 empowers the Charity Commissioner, the Deputy or Assistant Charity Commissioner or any officer authorised by the State Government, for inspection and supervision. Section 38 gives powers to Deputy or Assistant Charity Commissioner, to whom report is submitted, to require the trustee or any other person connected, to submit an application thereon within such period as he thinks fit. Section 39 contemplates recording of finding by the Deputy or Assistant Charity Commissioner on the question whether or not a trustee or the person connected with the trust has been guilty of gross negligence, breach of trust misappropriation or misconduct which resulted in loss to the trust, and report to charity Commissioner. The Charity Commissioner, after considering such report of the Deputy or Assistant Charity Commissioner, and after giving an opportunity to the person concerned and holding such inquiry, is vested with the power to issue orders on report received under section 39 or to remand the matter. These powers can be traced from section 40.
Section 37(1)(d) contemplates reasonable notice to the trustee. Section 37(1) (b) refers to trustees or any person connected with the trust. Thus, while exercising the powers under section 37 , Charity Commissioner, the Deputy or Assistant Charity ::: Downloaded on - 09/06/2013 14:27:53 ::: 26 Commissioner, or any officer authorized by the State Government has to issue reasonable notice to the trustee or any person connected with the trust. Section 38 also makes a reference to "trustee" or any other person concerned". Section 38 also makes a reference to "trustee or any other person concerned". Section 38 gives powers to the Deputy or Assistant charity Commissioner to require the trustee or any other person concerned to submit an explanation within such period as he thinks fit. Thus, notice and hearing to trustee and other person concerned, is embodied in sections 37 and
38. Section 39 refers to submission of report to Charity Commissioner, ig after considering explanation, if any, furnished by the trustee or any other person connected with the public trust. Section 40 refers to person connected and makes obligatory, giving an opportunity to such person connected and further contemplates holding of inquiry. Thus, from section 37 to section 40 the officer concerned has to exercise the powers after reasonable notice to trustees or persons connected with the trust before passing of further orders. In other words, no order can be passed/ no action can be taken, by the officer concerned under section 37, 38, 39 and 40 unless the trustee or person connected is heard and some inquiry is conducted. While parting with this group of sections, it is to be noted that, trustee and person connected with the trust, or person concerned, are alone referred tin this group of sections. However, section 2 of the Act nowhere defines "persons connected with the public trust" or "person concerned with the public trust". The expression "trustee" is defined under section 2(18) of the said Act. trustee means a person in whom either alone or in association with other persons, the trust property is vested and includes a manager."
::: Downloaded on - 09/06/2013 14:27:53 ::: 277. On the premise of unamended sections 37 to 41 in Chapter VI, group of these sections from 41-A to 41E is added by the amendment. Section 41-A confers the power on the Charity Commissioner to issue directions from time to time. Such directions may be issued to any trustee of public trust or any person connected therewith. Such directions can be issued to ensure that the trust is properly administered and the income of the trust is properly accounted for and duly appropriated and applied to the objects of the trust. He has to also keep in mind the purpose of the trust while issuing all such directions. Charity Commissioner is also vested with the power to give directions to the trustees or such person if he finds any property of the trust is in danger of being wasted, damaged, alienated or wrongfully sold, removed or disposed of. From the phraseology of section 41-A, it is revealed that notice to trustee and person connected, opportunity of being heard to trustee and person connected, is not provided.
Consequently it is discernible from 41-A that such directions may be issued from time to time. There is no minimum or maximum ceiling for issuing such directions. The charity Commissioner is not expected to adjudicate upon a lis. Charity Commissioner is not supposed to adjudicate upon rights of the parties. The Charity Commissioner is not expected to remove "A" trustee and appoint "B" trustee. The Charity Commissioner is not empowered to remove all trustees and appoint committee of members or other persons. Powers are not given to the Charity Commissioner to appoint administrator. All that seems to be the objection of section 41-A, is to ensure that the trust is properly administered and income thereof is properly and duly appropriated, account and applied to the objects and for the purpose of the trust; This power also to be exercised for ::: Downloaded on - 09/06/2013 14:27:53 ::: 28 prevention of waste and damage to the property of the trust. Thus, nature of the power vested with the Charity Commissioner is significant from this view point. The Charity Commissioner also can exercise power under section 41-A suo motu in consonance with the provisions laid down under section 41-A. Sub section (2) of section 41-A makes it obligatory on every trustee or such person to comply with the directions issued under sub-section (1).
There is no provision of filing of any appeal or revision against the directions issued by the Charity Commissioner under section 41-A. A bare look to section 70 makes it clear that orders passed under specified sections like sections 20, 22, 22A, 28, 54(3) and 79-AA are made appealable under section 70 to the Charity Commissioner. Here, there is no reference of section 41=-A. Section 70- A of the said Act empowers the Charity Commissioner to call for and examine records and proceeding before the Deputy or Assistant Charity Commissioner. The proceeding under section 41-A is not considered to be a "case" pending before the Assistant Charity Commissioner. From section 70-A it can be said that remedy of revision application is also not specifically made available under section 70-A of the said Act. It is also apposite to refer to section 72 of the said Act wherein application by aggrieved person, by a decision of the Charity Commissioner, under sections 40, 41, 41-C and 43(2)(a)(c), 50-A, 70, 70-A is provided to the Court. The" Court" is defined under section 2(4) meaning thereby in Greater Bombay the City Civil Court and elsewhere the District Court. Thus, direction issued by the Charity Commissioner under section 41-A is also not made appealable before the District Court under section 72. it seems to be intention of the Legislature while inserting section 41-A empowering the Charity Commissioner only ::: Downloaded on - 09/06/2013 14:27:53 ::: 29 to issue directions to the trustee or the person connected with the trust and to ensure that the trust is properly administered and income thereof is properly accounted for and waste and damage to trust property to be prevented. No lis before the Charity Commissioner and / or Appellate and Revisional Authority is contemplated under the provisions of the said Act. The powers of Charity Commissioner under section 41-A are delegated to Assistant Charity Commissioner. Thus, the authority, exercising the powers under section 41-A of the said Act, is not empowered to dislodge the trustee from office, appoint committee for administration of the trust or to appoint administrator to look after the affairs of the trust. Such orders/ directions by the authority, resorting to section 41-A of the said Act is under assumption that such powers are vested with the authority. Such orders / directions, therefore, are arbitrary and exceeding power and jurisdiction."
30) In that case the direction of the Assistant Charity Commissioner was quashed. It is necessary to refer to the facts of that case which can be seen from paragraph 10 and 11 of the said judgment:
"10. At the the instance of learned counsel for respondent Miss. Surekha Mahajan, record and proceeding from the learned Assistant Charity Commissioner was called for. From the record, it appears that Inquiry Application No.400 of 2007 was the suo motu proceeding initiated by the learned Assistant Charity Commissioner, Dhule. From the record, I could get only the order passed by the learned Assistant Charity Commissioner, Dhule in Inquiry no.400 of 2007. Other record of Misc.::: Downloaded on - 09/06/2013 14:27:53 ::: 30
Application No.10 of 21005 filed by one Mr. Bhagwan Vithal Patil is also produced. Record pertaining to other change report, with which this petition has no concern, is also produced. We have no concern with other record. However, I have also come across a communication addressed by Police Inspector, Dhule City Police Station, to Assistant Charity Commissioner dated 19th April 2007. In this communication, reference is made to registration of offence at C.R. No.65 of 2007 under sections 406, 408, 420, 467, 468, 471 and 34 of Indian Penal Code. Name of the complainant mentioned in this communication of Mr. Raghunath Moriram Patil. Name of the Accused persons are also given int his communication. By this communication, Police Inspector, City Police Station, Dhule seems to have sought guidance from the learned Assistant Charity Commissioner in relation to operation of saving bank account Nos. 6335 and 650 with Dhule District Central Cooperative Bank. From this record, I have also come across a letter dated 31st May, 2007, addressed by Assistant Charity Commissioner, Dhule to Police Inspector, Dhule in response to his letter dated 19th April, 2007. In this communication reference is made to another Misc. Application No.415 of 2006( subject matter of Writ petition No.3401 of 2007). It is informed by the learned Assistant Charity Commissioner that by the order passed by him on 22nd May, 2007, the office bearers of the trust, recorded with his office, are permitted to look after the management and also permitted to operate the bank accounts. Accordingly, powers are given to them. At this stage, it would be appropriate to refer to the reply affidavit filed on behalf of respondents. Advocate Miss. Mahajan, along with this reply affidavit, has also produced on record some complaints in relation to alleged mis- appropriation of funds of the trust in question. According to learned counsel Miss. Mahajan, in view ::: Downloaded on - 09/06/2013 14:27:53 ::: 31 of this fact situation, the learned Assistant Charity Commissioner has justifiably exercised the powers under section 41-A of the said Act. It is not possible to accede to this submission in view of the view taken by me in the forgoing paragraphs regarding the power, authority and jurisdiction of learned charity Commissioner, Deputy Charity Commissioner, Assistant charity Commissioner exercising these powers.
11. Writ Petition No.3401 of 2007 challenges the direction given by the learned Assistant Charity Commissioner dated 22nd May, 2007 in Inquiry No.415 of 2007. This direction is also issued by the learned Assistant Charity Commissioner, exercising the powers under section 41-A of the said Act. These directions are emerging in a communication addressed to one Raghunath Motiram Patil, who is respondent in this petition. This communication is at Annexure-D to this writ petition. Communication is dated 23rd May, 2007. While issuing these directions also, the present petitioner was not heard. This direction refers to direction issued by the learned Assistant Charity Commissioner in Misc. Application No.415 of 2007 dated 25th May, 2007. In view of the view taken by me, this petition also need to be allowed by quashing and setting aside these directions."
31) In the said case the judgment of the Apex Court reported in AIR 1957 SC 540 Garikapati Veeraya ..v.. N. Subbiah Choudhary and others as regards the right to appeal has been referred. Here the appellate remedy has been invoked by the petitioner. However, according him, the remedy of appeal is not available for challenging the part of order under section 41-A of the Bombay ::: Downloaded on - 09/06/2013 14:27:53 ::: 32 Public Trust Act and therefore, the appellate forum of the Joint Charity Commissioner would not be able to deal with such direction effectively for want of appropriate jurisdiction.
32) As regards the scope of direction under section 41-A of the Bombay Public Trust Act, the decision of this court in 2007 AIR Bombay R 547 Dattatraya Mahadeo Hiware & Others ..vs.. Arjun Sambhaji Shinde & others may also be referred, wherein in paragraph 15 it has been held thus:
"15- Learned counsel Shri R.N. Dhorde, seeks to rely upon Ramdas Shivaji Sakharam and others ..vs.. Karuji Dago Ambade and others (2002(2) Mh.L.J.304): (2002 AIHC 2328) and Asaram Bhimrao Shinde and others ..vs.. State of Maharashtra and others (2001 (4) Mh.L.J.548). In both these matters, it is held that Section 41-A does not empower the Charity Commissioner to remove or to appoint any new committee for the administration of the trust. The purpose of Section 41-A is to ensure that the administration of the trust is properly carried out and there is no mismanagement. The expression "issue direction to any trustee of a public trust or any person connected therewith" as used in Section 41-A, would show that the directions can be issued only against trustees or the persons connected with the trusts. In the present case, the status of the respondent Nos. 1 to 3 as members of the educational trust was seriously disputed. The learned Asst. Charity Commissioner did not enquire about the status of the respondent Nos. 1 to 3 and straight way proceeded to allow their application. This approach of the Asstt. Charity Commissioner is improper and erroneous. Consequently, I have no hesitation in holding that the Asstt. Charity Commissioner cannot appoint a ::: Downloaded on - 09/06/2013 14:27:53 ::: 33 committee and the application could not have been allowed to the extent of such appointment.
When assistant Charity Commissioner cannot direct the appointment of trustees, he would also not be able to direct to enrol members, hold elections and submit change report under section 41-A of the Act. Any such direction would vitiate, if challenged, for it would be illegal exercise of jurisdiction. The decision of this court in 2002(3) Bom.C.R. 16 Asaram Bhimrao Shinde & others ..vs..
State of Maharashtra can also be referred in this regard.
33) Yet another judgment which needs to be referred is judgment of this court in 2007 (1) ALL MR 71 Nawalchand Champalal Chaudhari & another ..vs. Joint Charity Commissioner, Nagpur and another , wherein it has been held:
" In the instant case, it is clear that minimum number of trustees to administer the trust itself were not available. Both the groups made rival claims and enroled members. In such circumstances, permitting any one of them to hold elections will never result in resolving the issue once for all and dispute will continue. In fact both of them have held elections and filed change reports. If change reports furnished by them could not have been entertained, there is no point in asking any one of them to hold elections again. The Assistant Charity Commissioner ought to have seen that provisions of Section 47of the Act, have been placed in statute book to take care of such contingencies. Initially the matter should have been considered to fill in requisite number of vacancies so as to see that minimum members required to ::: Downloaded on - 09/06/2013 14:27:53 ::: 34 administer the trust become available and then only a direction under Section 41-A of the Act could have been issued to such trustees. It is only thereafter that the act of such trustees could have been treated as act of trust. The Assistant Charity Commissioner has overlooked this aspect and also provisions of Section 47 of the Bombay Public Trust Act. This was not a case in which powers under Section 41-A of the Act could have been exercised.
In such circumstances, the Assistant Charity Commissioner ought to have referred the matter to Charity commissioner under section 47 of the Act to appoint adequate number of trustees so that there is valid Executive Committee initially to take care of affairs of Trust. As the quorum for meeting of Executive Committee as per constitution is 7 and three Executive members/ trustees were already available, the Assistant Charity Commissioner ought to have seen that remaining four are first appointed under Section 47 of the Act. The task of holding elections could have been left to such Executive Committee thereafter. By leaving the task of holding elections only to one of the rival groups in the matter, the Assistant Charity Commissioner has added to the problems instead of resolving it."
In these circumstances, if Assistant Charity Commissioner was of the opinion that fresh members need to be enroled and elections have to be held, it was for him to refer this matter to the Joint Charity Commissioner for action under section 47 of the Bombay Public Trust Act.
34) Learned counsel for the respondent has referred to the judgment of the Apex Court in (1978)1 1 SCC 490 Maharashtra ::: Downloaded on - 09/06/2013 14:27:53 ::: 35 State Textile Corporation Limited ..vs.. Official Liquidator and others to contend that even if there is any direction, whatever legal requirements are to be followed in complying with that directions, have to be followed and complied with. For this purpose, he has referred to paragraph 10 of the said judgment which reads thus:
"10-Section 8(1) of the Management Act runs thus:
No proceeding for the winding up of a textile company, within the meaning of this Act, shall lie in any Court or be continued whether by or under the supervision of any court or voluntarily except with the consent of the Central Government.
Analysing this provision, it is manifest that though the section does not contain an absolute embargo on the continuance of the proceedings it imposes an important condition for the continuance of the proceedings, namely, that the consent of the Central Government should be obtained. When this Court passed the interim order dated September, 28 1973 and allowed the liquidation proceedings to continue it only meant that the proceedings should continue in accordance with law and if the law enjoined any condition the same must be complied with. In view of the provisions of Section 8 of the Management Act the consent of the Central Government was necessary, so the order of this Court would be interpreted as meaning that the proceedings could continue after the Official Liquidator obtained the consent of the Central Government under section 8 of the Management Act. The order passed by this court did not give any free licence to the parties to act in disobedience of the mandatory provisions of the Act and continue the proceedings without complying with the conditions enjoined by Section 8 of the Management. In these circumstances, therefore, the inference is irresistible that without the consent of the Central Government the liquidation proceedings ::: Downloaded on - 09/06/2013 14:27:53 ::: 36 could not continue and the company Judge was not legally justified in ordering the sale of the movables without obtaining the sanction of the Central Government.
In my opinion, when impugned direction itself is found to have been issued without jurisdiction, the same can not be allowed to stand with a fond hope that respondent no.1 would do the work entrusted without any malice, as here is case where appeal is pending against the order of rejection the Change report and the Joint Charity Commissioner can take recourse to section 47, if necessary and for the facts which I would refer below.
35) This takes me to consider another vital aspect of the matter as herein respondent no.1 is directed to enrol members, hold elections and submit change report. It is pertinent to note that he was "Assistant Secretary" which came in the trust some time on 24.1.2001. Term of the earlier body was over in 2004, so also of this respondent no.1. Earlier managing body could continue as defacto management body. It is contended by the petitioners that there are founder members as well as life members; in the trust even now and the members can be enroled and admitted in the said trust only after the approval of the Management Committee.
36) Case in hand is the case where Assistant Charity Commissioner had directed the appointment of Election Officer for holding election, arising out of application no.144/2004, the applicants ::: Downloaded on - 09/06/2013 14:27:53 ::: 37 therein are thus:
"1)Gram Vikash Samitee, Shahapur, through its Secretary Shri B.V. Palandurkar r/o Shahapur, Tah.
District : Bhandara.
2) Shri B.V.Palandurkar, Secretary
3) Shri K.M. Dorle, President
4) Shri B.B. Bhure, Vice Preident
5) Shri N.S. Malhotra, Treasurer
6) Shri A.J. Khobragade, Dy. Secretary
7) Shri D.N. Malhotra, Assistant Secretary,
8) Shri G.R. Randive, Member".
Respondent no.1 is applicant no.7 therein. In the said application, prayer clause is thus:
"Prayer: 1) It is therefore, prayed that this Hon'ble authority be pleased to appoint any independent election officer either from the panel of the Advocates or any of the employee of this office or any suitable person as this Hon'ble Authority may deems fit and proper.
2) Issue any other directions in the interest of Sanstha as this Hon'ble authority may thinks fit and proper"
In that application at paragraph 2 it is stated thus:
"That, on 15.4.1999 the election of the managing committee was held. Accordingly, tenure of the said managing committee is of 5 years i.e. upto 14.4.2004. Since the regime of the elected managing body is going to be over. The managing committee has passed resolution no.2 dated 11.2.20904 that the election of the managing committee has to be held as per the rules and regulations. It is pertinent to note that the Samitee is having near about 162 members as ::: Downloaded on - 09/06/2013 14:27:53 ::: 38 General Body members. The said members are eligible to cast their votes for the election as they have paid their subscriptions. The management has prepared register of the members. The copy of the said membership register is filed herewith as document no.2. All these members have been approved by the managing committee vide resolution No.1 dated 11.2.2004. The copy of the said resolution is also filed as document No.3.
Thereafter, the following order was passed on that application :
"1) Application Ex. No.1 is allowed.
2) Mr. M.H. Rahangdale, Advocate is hereby appointed as a election officer of the said trust.
3) Election Officer is directed to prepare and declare election program and conduct the election as per constitution of the Trust.,
4) Trustees are directed to co-operate with the Election Officer
5) Election expenses shall be incurred from the trust fund.
4) Parties and Election Officer to note
accordingly."
Thereafter, the said Advocate Rahangadale, who was appointed as Election Officer had published the election programme on 1.3.2004 and later on held elections. The only dispute is that the order was passed on 5.3.2004 and the election programme was published by said Advocate Shri Rahangadale on 1.3.2004 i.e. prior to the written order issued by the Assistant Charity Commissioner and therefore the said election is termed as illegal.
37) It is submitted by the learned counsel for petitioner that ::: Downloaded on - 09/06/2013 14:27:53 ::: 39 oral order was given, accordingly, Advocate Rahangadale had started working as Election Officer to conduct relevant job. Whereas it is the contention of the respondent no.1 that his work of conducting election was illegal for which the petitioners have submitted the change report as directed by the impugned order by the Assistant Charity Commissioner.
38) One thing is certain that if the application for holding election given to the Assistant Charity Commissioner was signed by respondent no.1, he must have been in the knowledge as to what were the directions given by the Assistant Charity Commissioner.
Ex-facie it is impossible to believe that Advocate Rahangadale would start conducting elections of the petitioner no.1 trust unless; authorized by Assistant Charity Commissioner either orally or by written order. The matter is now under consideration of Joint Charity Commissioner in appeal.
39) He had scheduled the election on 11.4.2004, and first meeting of elected bodywas to be held on 14.4.2004. Same election was held by him as per that programme on 11.4.2004. What is surprising is that later on respondent no.1 submitted his change report saying that the election was held by "him" and some trustees i.e. members of th e management committee were appointed on 15.4.2004. Needless to say he should have informed Assistant Charity Commissioner, had he been aggrieved by election programme of Advocate Rahangadale published on 1.3.2004;
::: Downloaded on - 09/06/2013 14:27:53 ::: 40immediately and taken legal course.
40) It clearly seems that he was aware of the order of the Assistant Charity Commissioner regarding the election to be held by Advocate Rahangadale, though according to him, the election conducted as per that order was not binding on the trust. He conducted "his election" in the members who attended the meeting without taking any permission or direction from Assistant Charity Commissioner despite order dated 5.3.2009. It is some what shocking that some of the names who attended that meeting called by respondent no.1 are appearing in the list of members, who were present in the election meeting held by Advocate Rahangadale. Ex- facie election conducted by respondent No.1 if any,seems to be unwarranted election, further conducted by him with some oblique motive for which later on, he had to withdraw the change report submitted by him. One affidavit of Kawadu Krupan Retired Head Master (Founder Member) is also filed on record to the effect that respondent no.1 has fabricated documents regarding election meeting of 14.4.2009 to submit change report in his favour.
41) It would be seen that his change report states that such election was held on 15.4.2004. I do not feel it necessary to mention the contents of his application, but one has to see some contents of the application of respondent no.1 for withdrawing change report which was later on converted into suo motu enquiry by Assistant Charity Commissioner. Relevant contents of the ::: Downloaded on - 09/06/2013 14:27:53 ::: 41 application for withdrawal of change report are reproduced:
"1) That the R.T. has filed the change report and the documents but on enquiry and after verifying the position of law, the R.T. got knowledge that the members shown in the meeting are not duly registered by the General Body and hence the R.T. do not want to prosecute the change report.
2) That though elections are held but the same need no further enquiry and hence the applicant wants to withdraw the change report & is not pressing this change report."
The order on the said change report reads thus:
ig "ORDER (Below Ex.33) CHANGE REPORT INQUIRY NO.591/2004
1)Perused application at Ex.33 and reply of the objector at Ex.34. The Reporting Trustee Shri Darshanlal Malhotra has submitted an application for grant of permission to withdraw the present Change Report. The objector has given high reply and the same is at Ex.34. That, as per the circular no.146 of Hon'ble Charity Commissioner, Maharashtra State, Mumbai, if the Reporting Trustee apply to withdraw the Change Report and if such request is granted, then the Regional Officer concerned should ordinarily on the very same day pass an order converting said inquiry into suo-moto inquiry and assign fresh number to that inquiry and see that, the same is deposed of expeditiously. That, according to the guidelines given by the Hon'ble Charity Commissioner, Maharashtra State, Mumbai, present application of the Reporting Trustee at Ex.33 is allowed and he is permitted to withdraw the Change Report and therefore, present Inquiry No.591/2004 will be round up and fresh inquiry number will be given ::: Downloaded on - 09/06/2013 14:27:53 ::: 42 to this proceeding. That, in the interest of justice, opportunity was given to the objectors to file their reply to the application Ex.33 and both the parties were heard, on application Ex.33 and ultimately said application is allowed and suo-moto inquiry is started in this proceeding and accordingly, the matter is being kept for the evidence of the Reporting Trustee on 10.12.2008."
42] The change report submitted by the respondent no.1 shows that there was election on 14.4.2004 and on 18.4.2004, there was election of the office bearers of the Managing Committee. He has specifically stated in the minutes of the election meeting, subject no.1 thereof reads thus:
"Agenda -1: In respect of election of new executive body of Village Developmental Committee, Shahapur according to rules:
Shri Darshan Nandlal Malhotra informed the meeting that application was made to the Assistant Charity Commissioner, Bhandara for conducting election unanimously and that he had issued orders on dt.-----. However, before obtaining the concerned orders, some of the members saying that election conducted illegally was not binding upon the . . . . . society, appealed . Shri Darshan Nandlal Malhotra to hold election as per the rules with reference to it, meeting is convened again.
Shri Darshan Malhotra the Joint Secretary commenced the process of election in the capacity of election officer and as per rules, first suggested to elect members from amongst the life members or founder members."
43) It is rather shocking that when respondent no.1 was signatory to the application preferred before the Assistant Charity ::: Downloaded on - 09/06/2013 14:27:53 ::: 43 Commissioner, asking appointment of independent election officer whereupon Shri Rahangadale was appointed as Election Officer, may be, before any express written order of the Assistant Charity Commissioner; he had preferred his change report contending that the elections were held by him and some members of the management committee were elected. It is difficult to comprehend as to when he was party to the application for holding election by independent officer, how "he" could hold the election of the said trust that too immediately after written order by Assistant Charity Commissioner dated 5.3.2004 which is extracted above.
44) The impugned order records reasons thus in respect of direction of the enrolment of the embers, paragraph 24 of the order:
"24- I minutely studied the change application of the applicant in the said case at Ex. No.1 (application of) objection of the non applicant at Ex. No.18, reply to it submitted by the applicant and the documents and x-omission-x filed by the applicant and no applicant. When enquiry of the said matter was in progress, non applicant Shri Darsxhanlal Nandlal Malhotra had submitted an application under section 41-A which was allowed. The society had filed a (Writ) Petition bearing No.3329/2008 before the Hon'ble High Court of Bombay, Bench at Nagpur, against it. The Hon'ble High Court of Bombay, Bench at Nagpur had allowed the said petition and set aside the order of this court. Thereafter, non applicant Shri Darshanlal Malhotra had filed L.P.A. bearing No.329/2008 in the said petition. While giving decision thereof, two Hon'ble Judges of the High Court have said that while deciding the change application in (writ) Petition No.3329/2008, the Hon'ble Judge or any other officer should not come under the influence of ::: Downloaded on - 09/06/2013 14:27:53 ::: 44 the inspection notes (submitted before them). In fact, after death of the original applicant Babanrao Vithobaji Palandurkar in the said case, his son Shri Narendra Babanrao Palandurkar should have examined himself and any one person who had actually participated in the election process (also should have been examined). However, this was not done. Owing to the lacunae and mistakes in the documents filed by the applicant and due to the errors and drawbacks in the election process by Election Officer, Advocate Shri Rahangadale and because of the variance draw backs and discrepancy in the evidence, this change application can not be allowed. Together with this change application, the change application of non applicant Shri Darshanlal Nandlal Malohtra bearing E. Nos. (old) 591/2004 and (new) 1047/2008 is also dismissed. Hence under such circumstances when both the change applications are dismissed, the secretary mentioned at Appendix -1 is required to look the work till fresh elections are held. However, owing to death of Babanrao Vithobaji Palandurkar, Secretary of the Society mentioned at Appendix -1 and because the Deputy Secretary of the Society did not play any active role in the said matter, it is in the interest of the society to issue suo motu directions under section 41-A that Shri Darshanlal Nandlal Malhotra, Joint Secretary mentioned at Appendix-1 should enrole new members and hold election within a period of two months and submit change application according to law. Hence I am issuing directions accordingly.
45) It is obvious that the earlier Managing Committee was conducting the affairs of the trust in pursuance of the order of this court in LPA recorded above. Therefore, in my opinion it was not at all warranted that there should have been any more order to enrol members, hold election and submit change report; to the ::: Downloaded on - 09/06/2013 14:27:53 ::: 45 respondent no.1.
46) The innocuous submission of the respondent no.1 that he would enrol members in accordance with bye-law, subject to approval of the management committee, can not make an patently illegal order a legal one and enforceable.
47) Learned counsel for petitioner has referred to one decision of this court in Writ Petition No. 4436/08, 5577/08, 5651/08 and 5954/08 The Peoples Education Society Jat, a Public Charitable Trust through its Secretary / President and Ors. etc. ..vs..
Dr. Manohar Shivappa Modi and Ors. etc., wherein in para 29 it is observed thus:
"29. -It is needless to mention that while taking judicial decision, judicial approach is required to be adopted. Judicial Approach postulates (a) arriving at the decision after adopting a fair and just approach and (b) application of objective test to the facts and circumstances of the case based on the evidence lead by the parties. When these tests are satisfied, then the act or decision becomes a judicial decision. Considered from this angle, the orders impugned in the present petitions can hardly be said to be judicial decisions."
to contend that clause 3 in the impugned order is hardly a judicially sustainable order. It is difficult to disagree.
48) Normally, this court while exercising extra ordinary writ ::: Downloaded on - 09/06/2013 14:27:53 ::: 46 jurisdiction under article 226 and 227 of the Constitution of India would not interfere with such orders, which appears to be interlocutary and against which the appeal is pending. However, in the case at hand it clearly seems that clause 3 of the impugned order, perhaps, cannot be a subject matter of the appeal, in which the Joint Charity Commissioner can pass appropriate orders. It is also contended that taking advantage of that order, respondent no.1 had tried to exercise the control over the petitioner trust, started enroling member, which was stayed by the interim order by this court. This would show that the action by this court to quash and set aside illegal clause of the order is clearly warranted to prevent abuse of process of law. No doubt this is a part of the order against which the appeal is pending before the Joint Charity Commissioner and Charity Commissioner can invoke the necessary power, if required under section 47 of the Bombay Public Trust Act. Fact remains that if part of that order is not struck down, further complications in the matter would crop up which need to be nipped at the bud to set the things right; at the initial stage itself. If such order is allowed to stand that is likely to create further complications and therefore, in my opinion, the exercise of extraordinary writ jurisdiction of this court under Article 226 and 227 of the Constitution is necessary in the interest of justice and to prevent operation of the direction issued in the illegal exercise of the power by the Assistant Charity Commissioner, under section 41- A of the Bombay Public Trust Act.
::: Downloaded on - 09/06/2013 14:27:53 ::: 4749) The cumulative effect of the above discussion is that even though the appeal of the petitioners against the order of rejecting their change report by the Assistant Charity Commissioner by the impugned order of which clause 3 is part which is challenged in this petition, is pending, this court has to interfere with the said clause 3 of the said order inasmuch as the same is without jurisdiction and exceeding jurisdiction that can be exercised by Assistant Charity Commissioner under section 41-A of the Bombay Public Trust Act in order to set the things right and in the manner as, required by law. Clause 3 of the order passed by the Assistant Charity Commissioner is therefore, required to be quashed and set aside with a direction to the Joint Charity Commissioner,, before whom the appeal against the order of rejection of change report i.e. other part of the said order is pending to decide the said appeal as early as possible in any case within a period of 3 months from the communication of this order on merits in accordance with law. However, subject to the orders, if any in the letters patent appeal pending before this court.
50) In the circumstances of case, it would also be necessary to forward the copy of this judgment to the Charity Commissioner, Maharashtra State, Mumbai, so that he may take appropriate steps for issuing guidance in respect of exercise of jurisdiction by the Assistant Charity Commissioners working under him as regards the decision on merits of the change report particularly regarding converting the matter of withdrawing the change report; into the ::: Downloaded on - 09/06/2013 14:27:53 ::: 48 suo motu inquiries as per Charity Commissioner's circular as was done in this case apropos to various Judgments of Hon'ble Apex Court and this court. It is necessary for the Charity Commissioner to see that the office of the Assistant charity Commissioner, Deputy Charity Commissioner and even for that matter the Joint Charity Commissioners, do not entertain any invalid or false change reports and if such cases are found, to deal with the same sternly in accordance with law so that the proper administration of the trust is ensured and no chaos are created in such trusts; who are expected to function with charitable and laudable objects.
51) It is made clear that nothing what is observed above shall influence the learned Joint Charity Commissioner while deciding the appeal between the parties. He shall decide the same on its own merits, after hearing both sides.
JUDGE smp ::: Downloaded on - 09/06/2013 14:27:53 :::