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5) Order passed by the Deputy Charity Commission on 1 March 2018 came to be challenged by the affected members, who were sought to be excluded from membership of the Trust by filing Writ Petition Nos.3382 of 2018, 3383 of 2018 in this Court. during pendency of those Petitions, Scheme Application was filed as directed by the Dy. Charity Commissioner, in which some of the excluded members filed intervention application under Section 73-A of the Act, which was rejected by Order dated 7 February 2019. Therefore, Writ Petition No. 4116 of 2019 was filed by excluded members challenging the Order dated 7 February 2019. All three petitions came to be disposed of by common judgment and order dated 10 May 2024 upholding the direction of the Deputy Charity Commissioner for holding of elections of the Trust. However, the observations of the Deputy Charity Commissioner about non-eligibility of the members enrolled after 16 May 1999 to participate in the election was set aside. The issue of their membership was kept open to be adjudicated in the appropriate proceedings.

41) Faced with a situation that rejection of Change Reports did not involve inquiry into the aspect of validity of enrollment of new members, Mr. Patwardhan would rely upon order dated 7 February 2019 passed by the Deputy Charity Commissioner in Intervention Application preferred by some of incoming members. According to Mr. Patwardhan, the Deputy Charity Commissioner has conducted in depth inquiry into the issue of validity of enrollment of new members and has held in order dated 7 February 2019 that the new members could not produce sufficient evidence to prove that they are validly enrolled. To consider the submission of Mr. Patwardhan about Deputy Charity Commissioner conducting enquiry into 21 January 2025 Neeta Sawant WP-648-2025-FC the issue of enrollment of new members in order dated 7 February 2019, it would be necessary to examine the background in which the said order has been passed. It appears that when application under Section 41A of the Act was filed before the Deputy Charity Commissioner for appointment of adhoc committee, which prayer was subsequently modified to prayer for conduct of elections, the Deputy Charity Commissioner proceeded to allow the prayer for holding of elections. However, the Applicant before the Deputy Charity Commissioner, who belongs to group of intervenors in the present petition, presented a difficulty before the Deputy Charity Commissioner that after deletion of 18 members, there was non-availability of sufficient members for electing the Governing Council of the Trust. The difficulty was expressed as the Memorandum of Association provides for 2 seats each to benefactors, patrons, donors and fellows and 4 seats to ordinary members. It appears that sufficient members in each category were not available for the purpose of electing a valid Governing Council. This is a reason why difficulty was expressed by the intervenors for conduct of elections based on remaining members after deleting the names of 18 members. To surmount the difficulty, the Deputy Charity Commissioner directed the intervenors to file a Scheme Application under provisions of Section 50A(3) of the Act for amendment of the Constitution so as to change the composition of representation of different category of members in the Governing Council. The elections were directed to be held after such amendment to the Constitution.

42) It appears that in pursuance of directions issued by the Deputy Charity Commissioner for filing Scheme Application under Section 50A(3), the intervenors filed Scheme Application No. 12/2018 for amendment of Constitution of the Trust. Ten newly enrolled members filed intervention application under Section 73A of the Act. Order dated 7 February 2019 was passed by the Deputy Charity Commissioner by rejecting the application of the said 10 members for intervention. While rejecting the applications, the 21 January 2025 Neeta Sawant WP-648-2025-FC Deputy Charity Commissioner has made certain prima facie observations about inability of the members to indicate the exact category to which they belong. It is further held that no evidence was produced about payment of membership fees. It was further held that rejection of Change Reports was not challenged by them. The Deputy Charity Commissioner therefore held that presence of the said 10 members for adjudication of Scheme Application was unnecessary.

43) I am unable to read order dated 7 February 2019 passed by the Deputy Charity Commissioner to mean adjudication of issue of validity of enrollment of 18 members. Firstly, while deciding intervention application, it was not necessary for the Deputy Charity Commissioner to undertake an in depth enquiry into the issue of membership. The limited remit of enquiry before the Deputy Charity Commissioner while deciding intervention application was whether the 10 members were necessary or proper parties to Scheme Application and whether such Scheme Application could be decided in their absence. Secondly, what is recorded by the Deputy Charity Commissioner in order dated 7 February 2019 are merely prima facie findings seeking to cast few doubts about valid membership of the said 10 members. The findings cannot be read to mean final adjudication of issue of membership of the said 10 members. There is yet another reason why the order dated 7 February 2019 cannot be used in support of contention that adjudication of issue of membership. Order dated 7 February 2019 was subject matter of challenge before the Division Bench in Writ Petition No. 4116 of 2019. While deciding the validity of order dated 1 March 2018 passed by the Deputy Charity Commissioner on application under Section 41A of the Act, the Division Bench arrived at a finding that the Deputy Charity Commissioner could not have directed exclusion of members enrolled after 16 May 1999. Since the conundrum relating to conduct of election through only 23 members (after excluding 18 members) got created only on account of deletion of names of new members, this Court also 21 January 2025 Neeta Sawant WP-648-2025-FC decided the issue as to whether direction issued by the Deputy Charity Commissioner for filing of Scheme Application under Section 50A of the Act was valid. This Court held in paragraphs 8 and 9 as under :