Bombay High Court
Rajaram Parashram Patil And Ors vs Subhash Pandurang Bandiwadekar And Ors on 21 January, 2025
2025:BHC-AS:2884
Neeta Sawant WP-648-2025-FC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 648 OF 2025
1. Subhash Pandurang Bandiwadekar
2. R.P. Bandiwadekar
3. Sanjay Mahadeo Patil
4, Dayanand Maruti Bhogan
5. Sou. Vidya Rajaram Bandiwadekar
6. Ashok Narsingrao Patil
7. Maruti Nana Pawar
8. Maruti Tukaram Gavade
9. Govind Prabhu Patil
10. Chandrabhaga Subrao Patil
11. Gopal Bharmu Bokade ...Petitioners
:Versus:
1.The State of Maharashtra through its
Principal Secretary, Law and Judiciary
Department.
2. Joint Charity Commissioner, Kolhapur.
3. Deputy Charity Commissioner, Kolhapur
Division, Kolhapur.
4. The Election Officer, Khedul Shikshan
Mandal, Kolhapur. ...Respondents
WITH
INTERIM APPLICATION (Stamp) NO. 1523 OF 2025
(Application for Intervention)
IN
WRIT PETITION NO.648 OF 2025
1. Rajaram Parshrma Patil
2. Laxman Dhondiba Lamble
3.Santu (Santaram) Shankar Patil
4. Vitthal Bhairoji Chandekar
5. Nagoji Kallu Patil
6. Gundu Somanna Patil
7. Balaram Baburao Patil
8. Mahadeo Bandu Patil
9. Ananda Vitthal Sutar
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10. Shahu Moti Farnandis
11. Vaman Dattatray Sadekar
12. Ramana Bharamana Patil
In the matter between :- ...Applicants
1. Subhash Pandurang Bandiwadekar
2. R.P. Bandiwadekar
3. Sanjay Mahadeo Patil
4, Dayanand Maruti Bhogan
5. Sou. Vidya Rajaram Bandiwadekar
6. Ashok Narsingrao Patil
7. Maruti Nana Pawar
8. Maruti Tukaram Gavade
9. Govind Prabhu Patil
10. Chandrabhaga Subrao Patil
11. Gopal Bharmu Bokade ...Petitioners
:Versus:
1.The State of Maharashtra through its
Principal Secretary, Law and Judiciary
Department.
2. Joint Charity Commissioner, Kolhapur.
3. Deputy Charity Commissioner, Kolhapur
Division, Kolhapur.
4. The Election Officer, Khedul Shikshan
Mandal, Kolhapur. ...Respondents
_________________________________________________________________
Mr. Vishwanath Talkute i/b. Mr. Graham Francis, for the Petitioner.
Mrs. Sulbha D. Chipade, AGP for Respondent -State.
Mr. S.S. Patwardhan i/b. Mr. Abhijit M. Adagule for Intervener/Applicant in
IA/1523/2025.
_________________________________________________________________
CORAM : SANDEEP V. MARNE, J.
Reserved on : 14 January 2025.
Pronounced on : 21 January 2025.
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JUDGMENT :
1) Rule. Rule is made returnable forthwith. With the consent of
the learned counsel appearing for the parties, the Petition is taken up for
final disposal.
THE CHALLENGE
2) Petitioners have filed this Petition challenging the order dated
10 January 2025 passed by the Election Officer nominated by the Deputy
Charity Commissioner rejecting the objections raised by them to Preliminary
Voters List published on 8 January 2025. Rejection of Petitioners’ objections
to the preliminary voters list has resulted in non-inclusion of their names in
the Final Voters List published on 13 January 2025, which is also subject
matter of challenge in the present Petition. Petitioners are thus, aggrieved by
denial of opportunity to participate in the election process for election of
Governing Council of Khedut Shikshan Mandal, Kalkundri, Taluka-
Chandgad, District-Kolhapur.
FACTUAL MATRIX
3) Brief facts leading to filing of the present Petition are that
Khedut Shikshan Mandal, Kalkundri (Trust) is a registered Public Charitable
Trust established on 25 February 1956, which was initially registered as
Society under the provisions of the Societies Registration Act, 1860. It got
registered as a Trust under the provisions of Bombay Public Trusts Act, 1950
on 13 September 1963. The Trust apparently runs 7 High Schools, 3 Colleges
and 1 Senior College in Chandgad, District-Kolhapur. The Trust is governed
by Memorandum of Association, under which various kinds of members
can be admitted to the Trust such as benefactors, barons, donors, fellows,
ordinary members, life members and honorary members. All the members
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together formed General Body of the Trust and the supervision, control and
management of the Trust is vested in the Governing Council. The
Governing Council is to be elected every three years. The Governing Council
upto the year 1999 was duly elected with corresponding changes being
accepted by the Assistant/Deputy Charity Commissioner in Schedule-I.
However, the election to the Governing Council after the year 1999 ran into
rough whether as the Change Reports reporting election of Governing
Council during 1999-2000 to 2015-16 are not accepted by the Dy. Charity
Commissioner, not because of any disputes within the members or persons
interested but essentially because of non-following of the mandatory
procedures required for holding elections. It appears that the Change Report
in respect of the elections of the Governing Council for the year 1999-2000
to 2001-2002 was filed on 17 October 2002. During pendency of the said
Change Report, further Change Reports were filed for the years 2002-03 to
2004-2005, 2005-06 to 2007-08, 2008-09 to 2010-11 and 2010- 2011 to 2013-
2014. It appears that few additional Change Reports were also filed for
reporting changes in the Governing Council due to death, resignation, etc.
All the Change Reports were taken up for hearing by the Deputy Charity
Commissioner and by various orders passed on 11 January 2017, the Deputy
Charity Commissioner proceeded to reject all the Change Reports. The
Change Reports relating to elections to the Governing Council in the year
1999-2000 to 2016-2017 were rejected inter alia holding that the occurred
changes were not in accordance with law as the elections were found to have
been conducted without following due procedure.
4) After rejection of the Change Reports in the manner aforesaid,
one of the members Ravalnath Madkholkar filed an application under the
provisions of Section 41A of the Maharashtra Public Trust Act (the Act)
before the Deputy Charity Commissioner for appointment of ad-hoc
committee of 7 persons for conducting day-to-day affairs of the Trust.
During pendency of the said application, the said member withdrew the
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prayer for appointment of ad-hoc committee and instead prayed for holding
elections of the Trust. It appears that the said prayer was resisted by the rival
group on account of existence of disputes about enrollment of members.
The Deputy Charity Commissioner proceeded to pass order dated 1 March
2018 allowing the application under provisions Section 41A of the Act and
directed holding of elections for appointment of Governing Council of the
Trust. The Deputy Charity Commissioner however, directed that the
members, who are enrolled after 16 May 1999 cannot be permitted to
participate in the election process and directed conduct of elections through
members who were enrolled upto 16 May 1999. The Deputy Charity
Commissioner also noticed inability of 23 members (after exclusion of
members enrolled after 16 May 1999) to elect Governing Council because of
its peculiar composition and therefore directed filing of Scheme Application
under Section 50-A for amendment of the Constitution before holding of
elections.
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.
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Similarly, the direction for filing of Scheme Application under Section 50-A
was also set aside.
6) Accordingly, the Election Officer nominated by the Deputy
Charity Commissioner published election program for holding elections to
elect Governing Council of the Trust for the year 2025 to 2027 on 7 January
2025. The Election Officer published preliminary list of voters on 8 January
2025. The names of the Petitioners were not included in the preliminary list
of voters on the ground that they were enrolled as members after 16 May
1999. Petitioners therefore filed objections to the preliminary list of voters,
which came to be rejected by Election Officer by order dated 10 January
2025. The petition is filed challenging the order dated 10 January 2025.
During pendency of the petition, the Election Officer proceeded to finalise
the voters list on 13 January 2025, which is also challenged by amending the
petition.
SUBMISSIONS
7) Mr. Talkute, the learned counsel appearing for the Petitioners
would submit that the Election Officer has overreached the order passed by
this Court by once again denying right of participation to the members
enrolled after 16 May 1999. He would submit that similar order passed by
the Deputy Charity Commissioner on 1 March 2018 for exclusion of
members enrolled after 16 May 1999 has been set aside by the Division
Bench of this Court on 10 May 2024 and that therefore it was not open for
the Election Officer to deny right of participation to such members. He
would submit that the net effect of the impugned order passed by the
Election Officer is restoration of order of the Deputy Charity Commissioner
dated 1 March 2018 ignoring the position that the same has been set aside by
the order of the Division Bench of this Court.
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not have jurisdiction to decide the issue of membership of the Trust. While
deciding objections to the preliminary voters list, Election Officer has
essentially adjudicated the membership disputes by exceeding his
jurisdiction. He would submit that despite rejection of the Change Reports,
the membership of Petitioners continues to subsist and so long as Petitioners
continue to remain members of the Trust, it was impermissible for the
Election Officer to deny them right to participate in the elections. He would
submit that 18 members of the Trust have been enrolled in a phase wise
manner between 2000 to 2015 after following the due process and with
approval of the General Body of the Trust. That their appointments have
absolutely nothing to do with election of the Governing Council. That the
Change Reports have not been rejected by holding that enrollment of the
said members is unlawful. He would take me through the proceedings of
various General Body Meetings of the Trust to demonstrate as to how all the
18 members have been duly enrolled in a staggered manner with the
approval of the General Body and have absolutely no relation to elections to
the Governing Council in respect of which the Change Reports have been
rejected.
9) In support of his contention that the issue of membership is
unrelated to enquiry conducted under Section 22 of the Act, Mr.
Talkute would rely upon judgment of this Court in Laxman Baburao Avale
and Others Versus. Surendra s/o Brijmohan Agarwal and Others 1. He would
also rely upon judgment of this Court in Laxman Baburao Avale and Others
Versus. Surendra s/o Brijmohan Agarwal and Others 2. Mr. Talkute would
therefore submit that since membership of the 18 persons remains intact
despite rejection of the Change Reports, denial of opportunity to participate
in the elections would be contrary to the constitution of the Trust. He would
therefore pray for setting aside the impugned decision of the Election Officer
1
Second Appeal No.375 of 2015 decided on 17 August 2015. (Aurangabad Bench)
2
First Appeal No.326 of 2017 decided on 8 September 2017. (Aurangabad Bench)
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and for inclusion of names of the Petitioner and all the members enrolled
after 16 May 1999 in the final voters list.
10) The petition is opposed by Mr. Patwardhan, the learned counsel
appearing for the Intervenors, who have filed Interim Application (Stamp)
No.1523 of 2025. He would submit that the 18 members enrolled post 16
May 1999 have direct linkage to the actions of the Governing Council,
whose Change Reports have already been rejected. That therefore necessary
consequence of rejection of Change Reports would be cancellation of
membership of all the said 18 persons. He would submit that there is a direct
connection between enquiry to be conducted under the provisions of Section
22 of the Act and enrollment of members. That the members ultimately
form electorate for holding elections to the Governing Council and that
therefore while conducting an enquiry under Section 22 of the Act, the
Election Officer can also adjudicate validity of enrollment of new members.
In support of his contention, he would rely upon judgment of this Court in
Narendra Namdev Malik and Ors. Versus. Ananda Demji Chougale 3 and
Krishnarao Kanhaiya Naidu and others Versus. Jeevraj Bhairavlal Agrawal and
others4.
11) Mr. Patwardhan would further submit that enrollment of the
said 18 persons is effected by fabricating the records. He would rely upon
paragraph 12 (3) of the Memorandum of Association of the Trust in support
of his contention that only General Body of the Trust can admit new
members. He would submit that except post facto approval for membership
of 9 members shown in the Annual General Meeting of 26 September 2015,
rest of the 9 members are shown to have been admitted merely by the
Managing Committee/Governing Council whose election is not only
rejected by the Deputy Charity Commissioner, but who had no authority to
enroll any new member. In any case, he would dispute the contention of the
3
2024(6) Bom. C.R. 251
4
2010(2) Mh.L.J. 31
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Petitioners about approval for enrollment of new members by the General
Body Meeting of 26 September 2015. He would submit that all the members
have been enrolled by those Managing Committees, whose Change Reports
have already been rejected. That with rejection of their Change Reports,
actions taken by members of the said Managing Committee/Governing
Council relating to constitution of the Trust would automatically be
rendered ab initio void. Mr. Patwardhan would submit that the Election
Officer has merely decided the issue of right of participation in the election
and has rightly excluded the 18 persons enrolled after 16 May 1999 from
participating in the elections.
12) Mr. Patwardhan would further submit that interference by this
in ongoing election process is otherwise not warranted considering the fact
that various stages of the election program have progressed with passage of
each day. In support, he would rely upon judgment of this Court in Shivaji
and Another Versus. Deputy Charity Commissioner and others 5. In support of
his contention that lack of authority for Governing Council members on
account of rejection of Change Report would have necessary impact on
enrollment of new members, Mr. Patwardhan would rely upon judgment of
this Court in People’s Education Society, Through-Anandraj Y.Ambedkar
Versus. Dr. K Sudhakar Reddy and others6.
13) Mr. Patwardhan would alternatively submit that an enquiry into
validity of enrollment of the 18 members has already been conducted by the
Deputy Charity Commissioner while deciding application preferred by the
Petitioners for intervention under Section 73A of the Act in Scheme
Application No.12/2018. He would accordingly take me through the order
dated 7 February 2019 passed by the Deputy Charity Commissioner to bring
home his point that the Petitioners could not prove that they are validly
enrolled members of the Trust before the Deputy Charity Commissioner. He
5
2023 SCC OnLine Bom 2437
6
2024 SCC OnLine Bom 3586
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would submit that the order dated 7 February 2019 has attained finality as
this Court did not set aside the same while disposing of Writ Petition No.
4116 of 2019 by judgment dated 10 May 2024. He would therefore submit
that if any party needs to be driven to further round of litigation under
Section 22 of the Act, it should be the Petitioners as they can very well
challenge the results of the elections by making one more attempt to prove
their membership before the Deputy Charity Commissioner. Mr.
Patwardhan would accordingly pray for dismissal of the petition.
14) I have also heard Ms. Chipade, the learned AGP for
Respondent-State.
REASONS AND ANALYSIS
15) The broad issue that arises for consideration is the effect of
rejection of change reports on the status of membership of persons who
were enrolled by the committees upon non-acceptance of the change relating
to constitution of those committees by the Deputy Charity Commissioner in
an inquiry under Section 22 of the Act. Whether rejection of such change
reports about election of the committees would automatically render the
decision taken by those committees to enroll new members ab initio void ?
Also arises for consideration is the issue whether the Election Officer, while
deciding objections to voters list, can decide the issue of validity of
enrollment of members and if the answer is in the negative, in which exact
proceedings can that issue be adjudicated?
16) The issues arise in the light of rejection of Change Reports
relating to election of successive Governing Council during the years 1999-
2000 to 2016-2017, which apparently enrolled 18 new members as under :
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1. 2000 1
2. 2001 1
3. 2002 2
4. 2005 1
5. 2007 2
6. 2010 1
7. 2012 1
8. 2015 9
TOTAL 18
17) However, when the Change Reports were filed for effecting
entries into the Schedule-I relating to the successive changes which occurred
in the names of members of Governing Council of the Trust during the
period 1999-2000 to 2016-2017, all those Change Reports were rejected by
the Deputy Charity Commissioner by orders passed on 11 January 2017.
Thus, the appointments of council members made from time to time during
1999-2000 to 2015-2016 stood invalidated by rejection of Change Reports by
order dated 11 January 2017. Since those council members have enrolled 18
persons as members of the Trust, the Election Officer has refused to include
their names in the Voters List. The issue that therefore arises is whether the
Election Officer is justified in denying an opportunity of participation in the
election process to the 18 members enrolled after 16 May 1999 only on
account of rejection of Change Reports relating to election of Governing
Council for the period from 1999-2000 to 2016-2017.
18) Similar attempt was made by the Deputy Charity
Commissioner while deciding proceedings under Section 41A of the Act.
By order dated 1 March 2018, the Deputy Charity Commissioner held that
members enrolled after expiry of period of valid Governing Council did not
attain status of valid members and that therefore all the persons enrolled
after 16 May 1999 were held to be invalid members. As a matter of fact, the
remit of enquiry to be conducted under the provisions of Section 41A of the
Act does not include power to decide validity of enrollment of members as
the Charity Commissioner can only issue directions for proper
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administration of the Trust. In fact, the application preferred by one of the
members under Section 41A of the Act was for appointment of ad-hoc
committee for managing day to day affairs of the Trust on account of
rejection of Change Reports. During pendency of his application seeking
appointment of ad-hoc committee, that member withdrew the prayer for
appointment of ad-hoc Committee and instead prayed for conduct of
elections of the Trust. In that view of the matter, the Deputy Charity
Commissioner should have only directed conduct of election of the Trust in
exercise of provisions under Section 41A of the Act. However, since the
Deputy Charity Commissioner unnecessarily went into the issue of validity
of membership of 18 persons enrolled after 16 May 1999, his order came to
be set aside by the order of the Division Bench of this Court on 10 May
2024. The Division Bench upheld the direction of the Deputy Charity
Commissioner dated 1 March 2018 to the limited extent of conduct of
elections of the Trust. However, the findings recorded by him that only
members enrolled prior to 16 May 1999 are eligible to participate in the
elections came to be set aside and the issue of membership was kept open for
being decided in appropriate proceedings. The operative portion of the
judgment and order dated 10 May 2024 passed by the Division Bench is as
under :
10] As a sequel to the aforesaid discussion, the following order is passed :-
(i) The order dated 01/03/2018 passed by the learned Deputy Charity
Commissioner, Kolhapur in Misc. Application No.171 of 2017 to the
extent it directs elections of the Society to be conducted is upheld.
(ii) The observations as well as the finding that only those members
enrolled prior to 16/05/1999 are eligible to participate in the said elections
is set aside. The issue of membership is expressly kept open for being
adjudicated in appropriate proceedings.
(iii) The Scheme proceedings initiated pursuant to the directions issued on
01/03/2018 would stand terminated as being non-est in law. Consequently,
the order dated 25/07/2019 passed by the learned Deputy Charity
Commissioner is set aside as the direction to initiate such proceedings
issued on 01/03/2018 by the learned Deputy Charity Commissioner has
been set aside. Trust Appeal No.43 of 2019 stands disposed of as
infructuous. However, it is clarified that this judgment would not preclude
exercise of jurisdiction under Section 50-A of the Act of 1950 in
accordance with law.
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19) Petitioners, who are enrolled members after 16 May 1999,
contend that the judgment and order passed by the Division Bench on 10
May 2024 recognises their right to participate in the election process. It
would be difficult to accept this extreme position that the Order of Division
Bench upholds the right of participation in the elections by the Petitioners.
This Court set aside observations of the Deputy Charity Commissioner in
order dated 1 March 2018 about right of such members to participate in the
elections only on account of absence of jurisdiction of Deputy Charity
Commissioner to make those observations in an enquiry under Section 41A
of the Act. The second reason why the said observations were set aside was
about absence of opportunity of hearing to the concerned members. This
would be clear form the following findings recorded by this Court:
7] Perusal of the impugned order dated 01/03/2018 indicates that after
finding that a direction to hold elections for the proper administration
of the Trust was warranted, which direction was acceptable to all
parties, the learned Deputy Charity Commissioner undertook the
exercise of examining the status of members on the premise that
members enrolled after 16/05/1999 had no legal right whatsoever. It
was held that only those members enrolled prior to that date could
participate in the elections. This direction cannot be sustained for
reasons more than one. As stated above, this exercise cannot be
undertaken under Section 41-A so as to ensure proper administration of
the Trust. It is linked to the rights claimed by individual members and
would require adjudication after due opportunity to parties in exercise
of powers conferred in that regard. Such exercise is beyond the scope of
Section 41-A of the Act of 1950. Further, the members likely to be
affected by a finding that those enrolled after 16/05/1999 had no legal
right to participate in the elections ought to have been heard before such
adjudication. It is not in dispute that members affected by such finding
were not heard before the same was recorded. In a contest between the
members claiming rival rights, this issue could have been considered.
Reference in this regard can be made to the decision in Shahid Javed
Maniyar and another vs. Sagir Munikhan Sarguroh (DR.) and others,
2014(5) Mh.L.J. 823 relied upon by the learned Counsel for the
Petitioners where a somewhat similar direction restricting the members
enrolled up to a particular date to participate had been set aside.
Though the learned Deputy Charity Commissioner relied upon the
decision in Maha Pragya Vidya Nidhi Foundation and Ors (supra), the
directions issued therein were in the factual backdrop of orders passed
in the preceding litigation. The said decision has been considered in
Vanmala Manoharrao Kamdi (supra). It thus becomes clear that the
finding recorded by the learned Deputy Charity Commissioner in the
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Neeta Sawant WP-648-2025-FCright whatsoever to participate in the elections is pursuant to an exercise
undertaken beyond jurisdiction and thus liable to be set aside.
20) Therefore, merely because the observations of the Deputy
Charity Commissioner with regard to right of members enrolled after 16
May 1999 to participate in the elections are set aside by this Court on the
ground of lack of jurisdiction and violation of principles of natural justice, it
cannot be contended that this Court has recognised their right to participate
in the election process. In fact, the issue of validity of their membership has
expressly been kept open by the Division Bench to be adjudicated in the
appropriate proceedings.
21) The case presents a unique conundrum where fate of 18
members enrolled after 16 May 1999 by various Governing Councils is now
being questioned on account of rejection of the Change Reports by which
changes to the Governing Council occurring during 1999 to 2016 are not
accepted vide orders dated 11 January 2017. Mr. Patwardhan has contended
that with rejection of the Change Reports, membership of 18 persons would
automatically come to an end. In support, he has relied upon judgment of
Single Judge of this Court (C. L. Pangarkar, J.) in Krishnarao Kanhaiya Naidu
(supra) in which, according to Mr. Patwardhan, similar argument of
rejection of Change Report not invalidating actions by elected trustees is
rejected by this Court. In para-12 of the judgment, it appears that this Court
rejected the submission made on behalf of the Petitioner therein that
rejection of the Change Report does not invalidate actions taken by the
elected trustee. Para-12 of the judgment reads as under :
12. Shri Khapre learned counsel submits that even when a change report is
rejected actions taken by elected trustees are valid. Submission cannot be
accepted. Once the Charity Commissioner holds that an election itself is
invalid, it can be said that such a person was never elected at all. Shri
Khapre puts an analogy before the Court and says that where appointment
of Judge is made and it is found subsequently to be invalid, the decisions
rendered by him are be held valid. He quotes a decision of the Supreme
Court in Gokaraju Rangaraju v. State of A.P., (1981) 3 SCC 132 : AIR
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Neeta Sawant WP-648-2025-FCrequired to see if legal change has occurred or not. Only when he says that
such change has occurred such a person could be said to have assumed the
office of the trust, till then he merely continues to be an elected trustee.
22) The observations in Krishnarao Kanhaiya Naidu appears to have
been made in the light of unique facts of that case which is apparent from
further findings in para-13 of the judgment, which read thus:
13. Shri Manohar learned counsel submits that all arguments of Shri
Khapre about validity of the enrolment of new members can be negatived
for the simple reason that the Deputy Charity Commissioner in Enquiry
No. 8 of 1991 has specifically held that such enrolment was invalid. This
application was moved by Shri C.G. Choube and others. They have made a
prayer that 78 members should be declared as legally enrolled. Therefore
the material question that was being decided by the Deputy Charity
Commissioner was about validity of the enrolment of new members. He
held that new members in category of sympathiser were not properly
enrolled. He held that these new members had paid Rs. 250/- in one
lumpsum which was in breach of the scheme. Clause IV of the said scheme
is already quoted above. If the clause is read it would be clear that a person
becomes sympathiser member only when he pays 50th instalment of Rs.
5/-. Anybody paying Rs. 250/- in lumpsum cannot be enrolled in category
of sympathiser. He at the most may become an ordinary member. This
finding of the Charity Commissioner appears to me to be correct. Shri
Khapre learned counsel submits that this decision is a void decision as
according to him the Charity Commissioner has no right to decide the issue
of membership. Decision has been rendered by a Charity Commissioner
and it is not challenged or set aside. It cannot be said to be an order which
is non est and one without jurisdiction. Charity Commissioner in fact has a
power to decide the question of validity enrolment of members since the
question would always be whether the office bearers are elected by a valid
electorate. If the persons who are not validly included in electoral roll elect
then election by those persons would be invalid. Therefore the Charity
Commissioner would certainly have a right to go into the question of
validity of electoral roll if called upon to decide the same. Charity
Commissioner has always an overall control over any trust. Therefore such
an act on part of the Deputy Charity Commissioner to my mind was not
one without jurisdiction. At the most it could be said that the Charity
Commissioner may have committed an error of law. An error of law does
not render any order invalid. Authorities below have rightly held that the
enrolment was improper and therefore the election was improper.
(emphasis and underlining supplied)
23) Thus, in Krishnarao Kanhaiya Naidu, an enquiry was conducted
by the Deputy Charity Commissioner into the validity of enrollment of new
members. The decision of the Deputy Charity Commissioner declaring
enrollment to be invalid was sought to be questioned on the ground of lack
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of jurisdiction of Deputy Charity Commissioner to decide the issue of
membership. This Court did not accept the submission and held that the
Deputy Charity Commissioner has jurisdiction and power to decide the
question of validity of enrollment of members, since the question would
always be whether the office bearers are elected by a valid electorate. In my
view, therefore the judgment in Krishnarao Kanhaiya Naidu cannot be relied
upon in support of an absolute proposition that every action taken by the
elected members, Change Reports relating to whose election get rejected,
would be invalidated only on account of such rejection. Such proposition
would lead to unimaginable consequences where actions relating to
appointment of teachers, promotions, etc. on the establishments of schools
and colleges would be rendered invalid merely because the Charity
Commissioner subsequently comes to an conclusion that the election of the
committee members is found to be erroneous, leading to rejection of Change
Reports.
24) In fact, going by the ratio of the judgment in Krishnarao
Kanhaiya Naidu, it would be apposite to hold that the effect of rejection of
Change Report on validity of enrollment of new members would depend on
the fact whether an enquiry is conducted by the Charity Commissioner into
the issue of validity of enrollment while deciding the Change Report. In a
case where the Deputy Charity Commissioner has conducted such an
enquiry about validity of enrollment of new members under Section 22 of
the Act and has ruled that some of the members are invalidly enrolled, it
cannot then be contended that mere rejection of the Change Report would
not invalidate enrollment of such members. If, on the other hand, during the
course of enquiry into the change under Section 22 of the Act, the Assistant
or Deputy Charity Commissioner had no occasion to go into the issue of
enrollment of new members and the same issue is not at all decided in such
an enquiry, it cannot be said that rejection of Change Report would
automatically invalidate enrollment of new members.
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canvassed by Mr. Patwardhan that enquiry into validity of membership can
be conducted while deciding the Change Report under Section 22 of the Act,
I am of the view that the effect of rejection of Change Report on validity of
enrollment of new members would depend on the fact as to whether Section
22 enquiry covered the issue of validity of enrollment. The principle of
jurisdiction of Charity Commissioner to decide the issue of membership
while conducting enquiry under Section 22 of the Act will have to be
necessarily upheld as the Charity Commissioner, during the course of
judicial enquiry for ascertaining as to whether a change has occurred or not,
is also required to necessarily ascertain whether the election has been validly
conducted or not. While deciding the issue of validity of the election, one of
the vital issues that arises for consideration is whether the eligible persons
have voted in the elections and therefore the issue of validity of membership
of newly enrolled members is bound to be decided in an enquiry under
Section 22. I am therefore in full agreement with the view expressed in the
judgment of this Court in Krishnarao Kanhaiya Naidu about jurisdiction of
the Deputy Charity Commissioner to decide the issue of membership during
the course of conduct of enquiry under Section 22 of the Act. The ratio of
the judgment in Krishnarao Kanhaiya Naidu has been followed by another
Single Judge of this Court (N. J. Jamadar, J.) in Narendra Namdev Mulik
(supra) in which it is held in paras-26, 27 and 29 as under:
26. Mr. Bhavake criticized the aforesaid approach of learned Joint Charity
Commissioner. It was submitted that the legality of the membership of the
petitioner Nos. 1 to 11 was not within the remit of inquiry envisaged by
section 22 of the Trust Act, 1950. The issue of legality of the membership
was never agitated by respondent Nos. 1 to 8 and adjudicated by the
competent authority. Therefore, the said issue could not have been inquired
into by the authorities under Trust Act, 1950, especially in the proceedings
under section 22 of the Trust Act, 1950.
27. I find it rather difficult to accede to the aforesaid broad submission
sought to be canvassed by Mr. Bhavake, especially in the facts of the case at
hand. As noted above, one year’s membership of the trust is the
qualification to be an elector for, and also get elected to, the managing
committee. The petitioner Nos. 1 to 11 were allegedly inducted as thePage No. 17 of 39
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14th July, 2009, the petitioner Nos. 1 to 11 were allegedly elected as
members of the managing committee and none from the original 23
members was elected. Almost instantaneous election of the petitioners no
sooner than they acquired the membership qualification is a matter which
is required to be appreciated in the light of concomitant circumstances.
28. The factors adverted to by the Joint Charity Commissioner (referred to
in paragraph No. 25 above) are relevant and germane for the determination
of the controversy. The reporting trustee in an affidavit in lieu of
examination in chief filed on 20th June, 2011 could not have affirmed that
there were only 23 members of the trust, when the petitioner Nos. 1 to 11
were allegedly inducted as members of the trust in the year 2008. Clause-
6(b) of the Constitution provides that to become a member of the trust a
person was required to give an application. Apart from an extract of
membership register, no documents were placed before the authorities
under the Trust Act, 1950 to substantiate the claim that the petitioner Nos.
1 to 11 had made such application to become members of the trust and
they were so admitted as the members of the trust in the AGBM allegedly
held on 13th July, 2008. To add to this, Mr. Mulik, petitioner No. 1
conceded in the cross examination that in Change Report No. 269 of 2008,
there is an endorsement that the original membership register was verified
on 12th October, 2010, and the names of the petitioners No. 1 to 11 were
not included therein as members of the trust. Cumulatively, all these factors
erode the claim of the petitioner Nos. 1 to 11 that they were inducted as
members of the trust, a year prior to the alleged meeting held on 14 th July,
2009.
26) Thus it is permissible to decide the issue of validity of
enrollment of member in an inquiry under Section 22 of the Act. Reliance
by Mr. Talkute on judgment of this Court in Laxman Baburao Avale (supra)
in support of his contention that such issue cannot be decided in Section 22
proceedings is inapposite, where the issue for consideration was entirely
different. This Court has decided the issue as to whether independent issue
of validity of membership can be decided in inquiry under Section 22 of the
Act when the change report is not contested. This is clear from the following
observations by this Court:
4. Looking to the limited controversy between the parties, a very short question
arises for my consideration, i.e. Whether an independent issue of validity of
the membership of any person can be decided in an enquiry under section 22
of the Maharashtra Public Trust Act, when the validity and legality of the
occurrence of change report is not in dispute. My finding thereon is in the
negative for the reasons to follow:
xxxx
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8. Considering the rival submissions of both the sides, it appears that when the
question of jurisdiction of Deputy Charity Commissioner or Joint Charity
Commissioner is raised regarding issue of Membership and its validity, when
the validity and legality of change occurred is not disputed by anybody, then
we have to see the scope of the provisions of section 22 of the Act.
Undisputedly, the Charity Commissar has jurisdiction to decide the validity of
the membership because the question would be always there whether the office
bearers who assume the office of trusteeship were elected by the valid members
or not. For that purpose, the Joint Charity Commissioner has certainly
jurisdiction to decide the validity of the members. However, Deputy Charity
Commissioner or the Joint Charity Commissioner has got such jurisdiction
only when the occurrence of change or the election of the office bearers itself is
challenged by the interested person on the ground of illegal electorate and not
when the election is not challenged by any body.
Thus even in Laxman Baburao Avale, this Court has reiterated the principle
that issue of validity of membership can always be decided in inquiry under
Section 22 of the Act. However, what Mr. Talkute possibly highlights by
relying on the judgment in Laxman Baburao Avale is that there was no contest
to the change reports in the present case and that therefore rejection of
change reports cannot be construed to mean decision of issue of
membership by the Deputy Charity Commissioner. To this limited extent,
what Mr. Talkute contends is possibly correct.
27) Thus as observed above, rejection of change report relating to
election of council members would not ipso facto lead to a presumption that
inquiry has covered the issue of validity of enrollment of new members. It
may happen that in a given case, there is no occasion for the Deputy Charity
Commissioner to decide the issue of valid electorate and enrollment of new
members. It is only in a case where Section 22 inquiry covers the issue of
validity of enrollment that rejection of change report would entail rejection
of their membership as well.
28) Mr. Patwardhan has relied upon judgment of this Court in
People’s Education Society (supra), in which the challenge essentially was to
the order passed by Mumbai University and College Tribunal setting aside
order of compulsory retirement of Respondent No.1 therein. While deciding
the said challenge, the Management raised an issue that the order of
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Tribunal proceeded on assumption of valid appointment of Mr. Anantraj Y.
Ambedkar as Chairman of the Trust. A Single Judge of this Court (Madhav
J. Jamdar, J.) relied upon judgment of another learned Single Judge of this
Court (His Lordship Justice A. M. Khanwilkar, as he then was) in Chembur
Trombay Education Society and others Versus. D.K. Marathe and others 7 and
held in para 19 as under :
19. If the facts of this case are examined on the touchstone of the above
legal position, then, admittedly, the governing body members namely Mr.
V.M. Pradhan, Dr. D.G. Deshkar, Dr. M.P. Mangudkar and Professor Mr.
S.L. Bhagwat, who inducted Mr. Anandraj Ambedkar as member of the
Governing Body and as Chairman on 29.06.2012 cannot be deemed to be
the members of the Governing Body on 29.06.2012, as the Change Report
concerning them have been rejected on 10.09.2012 and the said Orders
have been upheld in the Appeal. Although in the Second Appeal (L) No.
25487 of 2023, challenge to those Orders is pending, as pointed out by
learned Counsel for the Respondents the said Orders have not been yet
stayed. Thus, the effect of rejection of Change Report concerning inclusion
of said members namely Mr. V.M. Pradhan, Dr. D.G. Deshkar, Dr. M.P.
Mangudkar and Professor Mr. S.L. Bhagwat as the members of the
Governing Body of the Petitioner-Trust is that the date on which they
inducted Mr. Anandraj Ambedkar as member of the Governing Body and
as Chairman, they were not the members of the Governing Body.
Therefore, they have no authority to induct Mr. Anandraj Ambedkar as
member of the Governing Body and select him as Chairman. Thus, it
cannot be said that Mr. Anandraj Ambedkar is validly and legally
appointed as member of the Governing Body of the Petitioner-Trust and
validly and legally selected as the Chairman of the Petitioner-Trust. Thus, it
is clear that actions taken by said Mr. Anandraj Ambedkar are without any
authority of law. These conclusions are inevitable in view of the scheme of
the M.P.T. Act read with M.P.T. Rules concerning change which has
happened in the entries in the register kept under Section 17 and in terms of
law laid down by the learned Single Judge in Chembur Trombay Education
Society (Supra), as the effect of non-acceptance of the Change Reports is
that change will have to be undone and status-quo ante will have to be
restored.
29) By recording the above findings, this Court approved the
conclusion of the Tribunal that Mr. Anantraj Y. Ambedkar did not have
authority to take decision of compulsory retirement of the employee therein
as Change Reports relating to his appointment were rejected. In my view, the
judgment in People’s Education Society rendered while deciding the issue
validity of punishment of compulsory retirement of a teacher, cannot be
7
2001 SCC OnLine Bom 842
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relied upon in support of an absolute proposition that membership of
enrolled persons by successive Governing Councils would automatically
come to an end only on account of non-acceptance of Change Reports,
where the issue of validity of membership was not even involved.
30) It must be borne in mind that in the present case, the Trust runs
several schools and colleges and the Governing Councils took several
decisions for appointments, promotions, etc. of teaching and non-teaching
staff. Therefore, if the proposition that every decision of Governing Council
would be rendered invalid on account of rejection of Change Reports is
accepted in the present case, the same would seriously jeopardise the fate of
teaching and non-teaching staffs appointed by the Trust during past 25 long
years.
31) Having held that it is lawful for the Deputy Charity
Commissioner to decide the issue of validity of enrollment of members
while conducting enquiry under Section 22 of the Act, it would now be
necessary to examine whether such an enquiry into the validity of
enrollment of new members has indeed been conducted by the Deputy
Charity Commissioner while rejecting the Change Reports by orders dated
11 January 2017.
32) The first Change Report was for reporting the change in the
Governing Council for the period 1999-2000 to 2001-2002 based on General
Body Meeting held on 16 May 1999. The said Change Report No.981/1999
has been rejected by the Deputy Charity Commissioner by order dated 11
January 2017 by recording following reasons:
03. In this context, it is necessary to place category wise member list.
However in the present case member list does not specify the members from
which category are belongs. They filed list of 81 members. Furthermore
according to the constitution annual general body meeting, wherein
election of governing council is to be made, notice of it be served to the
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members. After going through the record on behalf of trust the copy of
outward register is placed which indicates that notice of annual general
meeting was to some members by post and some are served by hand.
However there is no evidence is forthcoming pertaining to the
acknowledgement of person to whom notices served by hand. There is only
general statement that notices are served by hand without proof.
Furthermore no evidence is forthcoming who posted the notices, whether
they are served to the members etc. mere placing endorsement in the
outward register is not sufficient to conclude that notices were served to the
members of the trust so there is no proper service to the members of the
trust. After going through the minutes of meeting, the annual general
meeting elected governing council consists of 14 members however does
not indicates which members belongs to which category. Likewise
benefactors and Patrons members are only eligible to elect their category
seats only, that factum is also not forthcoming in minutes of meeting. Thus
occurred change is not in accordance with the law, consequently election of
executive committee for the tenure 2001 to 2002 which is claimed in change
report is not legally effected. Consequently change report stands rejected.
33) As a matter of fact, no new member was enrolled as on 20
September 1999 when Change Report No.981/1999 was filed. Therefore, no
newly enrolled member had participated in election of the Governing
Council for the period from 1999-2000 to 2001-2002. Therefore, there was no
occasion for the Deputy Charity Commissioner to decide the issue of
validity of enrollment of any new member while deciding Change Report
No.981/1999.
34) The next Change Report No. 1475/2002 was filed for reporting
change in the Governing Council for the period 2002-03 to 2004-05 based on
Resolution of the General Body Meeting held on 18 August 2002 by which
time General Body Resolution was adopted for electing new Governing
Council for the period from 2002-03 to 2004-05, during which period 4
members were apparently enrolled. The exact details of the appointment of
the said four members are not readily available, but it appears that two out of
the said four members, Vidya Rajaram Bandiwadekar and Chandrabhaga
Subrao Patil were enrolled as members in the meeting of the Managing
Committee held on 7 July 2002. However, while rejecting the Change Report
No. 1475/2002 it appears that the Deputy Charity Commissioner did not go
into the issue of validity of enrollment of said 2 members. The reasons for
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rejection of Change Report No.1475/2002 by order dated 11 January 2017 is
as under :
02. It is settled law that the inquiry under Section 22 of Maharashtra Public
Trusts Act, 1950 is judicial inquiry and is not formal inquiry only to record
changes in the schedule. The enquiry Officer in fact is under the obligation
to examine whether the members of the executive committee whose names
are to be recorded are validly elected or not which includes examination of
validity or posted the notices, whether they are served to the members etc
mere placing endorsement in the outward register is not sufficient to
conclude that notices were served to the members of the trust. Furthermore
when member list consists of 91 members is placed on record, then mere
endorsement the notice was send by post to 48 members is not sufficient to
conclude that it is send to all members. So there is no proper service to the
members of the trust. After going through the minutes of meeting the
annual general meeting elected governing council consists of 14 members
however does not indicates which elected member belongs to which
category. Likewise benefactor and Patron members are only eligible to elect
their category seats only. Then election made by them separately is not
forthcoming in the minutes of meeting. Thus occurred change is not in
accordance with the law, consequently election of executive committee for
the tenure 2002-2003 to 2004-2005 which is claimed in change report is not
legally effected. Consequently change report stands rejected.
35) Thus, Change Report No.1475/2002 was essentially rejected on
account of failure to serve proper notice on all members of the Trust. The
election is not invalidated on account of newly enrolled members
participating in the election or the Deputy Charity Commissioner arriving at
the conclusion that the enrollment of the said new members is invalid.
36) The next Change Report No. 1419/2005 was for reporting
change in the Governing Council for the period 2005-06 to 2007-08 based on
General Body Resolution dated 4 August 2005. By this time, one more
member was enrolled. However, while rejecting the Change Report No.
1419/2005, the Deputy Charity Commissioner again did not go into the
issue of validity of enrollment of new members. The reasons for rejection of
Change Report No. 1419/2005 are as under:
03. So in this context it is necessary to place category wise member list.
However in the present case no member list is placed on record.
Furthermore according to the constitution annual general body meeting
wherein election of governing council is to be made be served to the
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members. After going through the record on behalf of trust the copy of
outward register is placed which indicates that notice of annual general
meeting was served to some members by post and some by hand delivery.
However there is no evidence is forthcoming if the notices are served by
hand then acknowledgement of that members. Furthermore no evidence is
forthcoming who posted the notices, whether they are served to the
members etc mere placing endorsement in the outward register is not
sufficient to conclude that notices were served to the members of the trust
so there is no proper service to the members of the trust. After going
through the minutes of meeting the annual general meeting elected
governing council consists of 14 members. However does not indicates
which members belongs to which category. Likewise benefactors and
Patrons members are only, then election made by them separately is not
forthcoming in minutes of meeting. Thus occurred change is not in
accordance with the law, consequently election of executive committee for
the tenure 2005 to 2008 which is claimed in change report is not legally
effected. Consequently change report stands rejected.
37) The next Change Report No. 1379/2008 was for reporting
change in the Governing Council for 2008-09 to 2010-11 based on General
Body Meeting of 10 August 2008 by which time two new members were
enrolled. However, while rejecting Change Report No.1379/2008, the
Deputy Charity Commissioner again did not go into the issue of validity of
enrollment of new members. The reasons recorded for rejection of this
Change Report are as under:
03. So in this context it is necessary to place category wise member list.
However in the present case no member list is placed on record.
Furthermore according to the constitution annual general body meeting
wherein election of governing council is to be made be served to the
members. After going through the record on behalf of trust the copy of
outward register is placed which indicates that notice of annual general
meeting was served to some members by post and some by hand delivery.
However there is no evidence is forthcoming if the notices are served by
hand then acknowledgement of that members. Furthermore no evidence is
forthcoming who posted the notices, whether they are served to the
members etc mere placing endorsement in the outward register is not
sufficient to conclude that notices were served to the members of the trust
so there is no proper service to the members of the trust. After going
through the minutes of meeting the annual general meeting elected
governing council consists of 14 members. However does not indicates
which members belongs to which category. Likewise benefactors and
Patrons members are only, then election made by them separately is not
forthcoming in minutes of meeting. Thus occurred change is not in
accordance with the law, consequently election of executive committee for
the tenure 2008 to 2011 which is claimed in change report is not legally
effected. Consequently change report stands rejected.
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change in the Governing Council for the period 2010-11 to 2013-14 based on
General Body Meeting dated 13 August 2011, by which time, one more new
member was enrolled to the Trust. The Change Report is rejected by
recording that all the previous Change Reports were already rejected and by
holding as under:
03. So in this context it is necessary to place category wise member list.
However in the present case no member list is placed on record.
Furthermore according to the constitution annual general body meeting
wherein election of governing council is to be made be served to the
members. After going through the record on behalf of trust
the copy of outward register is placed which indicates that notice of annual
general meeting was served to some members by post and some by hand
delivery. No evidence is forthcoming who posted the notices, whether they
are served to those members etc mere placing endorsement in the outward
register is not sufficient to conclude that notices were served to the
members of the trust so there is no proper service to the members of the
trust.
04. Furthermore the change reports of trust are rejected from the tenure
1999. The member list which is placed on record does not indicates the
members were when and in which year inducted. If members are inducted
after 1999 then they are invalid member of trust as it is settled that only
valid executive body is empowered to enrol new members. In the present
chase there is no valid executive body from the year 1999. After going
through the minutes of meeting the annual general meeting elected
governing council consists of 14 members. However does not indicates
which members belongs to which category. Likewise benefactors and
Patrons members are only, then election made by them separately is not
forthcoming in the minutes of meeting. Thus occurred change is not in
accordance with the law, consequently election of executive committee for
the tenure 2011 to 2014 which is claimed in change report is not legally
effected. Consequently change report stands rejected.
39) The last Change Report No. 80/2014 was for reporting change
in the Government Council for the period 2014-15 to 2016-17 based on
General Body Resolution dated 13 August 2014 by which time, no new
member was enrolled to the Trust. The Change Report No. 80/2014 was
rejected by recording following reasons :
03. So in this context it is necessary to place category wise member list.
However in the present case no member list is placed on record.
Furthermore according to the constitution annual general body meeting
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wherein election of governing council is to be made be served to the
members. After going through the record on behalf of trust the copy of
outward register is placed which indicates that notice of annual general
meeting was served to some members by post and some by hand delivery.
However there is no evidence is forthcoming if the notices are served by
hand then acknowledgement of that members. Furthermore no evidence is
forthcoming who posted the notices, whether they are served to the
members etc mere placing endorsement in the outward register is not
sufficient to conclude that notices were served to the members of the trust
so there is no proper service to the members of the trust. After going
through the minutes of meeting the annual general meeting elected
governing council consists of 14 members. However does not indicates
which members belongs to which category. Likewise benefactors and
Patrons members are only, then election made by them separately is not
forthcoming in the minutes of meeting. Thus occurred change is not in
accordance with the law, consequently election of executive committee for
the tenure 2014 to 2017 which is claimed in change report is not legally
effected. Consequently change report stands rejected.
40) Thus, none of the Change Reports are rejected by conducting
any enquiry into the issue of validity of enrollment of new members. The
Deputy Charity Commissioner had no occasion to conduct an enquiry into
the aspect as to whether new members were validly enrolled or not.
Therefore, the ratio laid down by this Court in Krishnarao Kanhaiya Naidu
cannot be applied to the facts of the present case. Since the change reports
were not even contested, the Deputy Charity Commissioner could not have
even decided the issue of validity of membership as held by this Court in
Laxman Baburao Avale.
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
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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
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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
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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 :
8] Insofar as the other direction issued based on the proceedings under
Section 50-A of the Act of 1950 is concerned, it is seen that it was found by
the learned Deputy Charity Commissioner that from amongst existing
members, the Executive Committee could not be elected. This was for the
reason that the requisite number of members were not available. On that
basis it was observed that the bye-laws of the Public Trust be treated as a
Scheme under Section 50-A of the Act of 1950. A further direction was
issued to seek amendment of the Scheme and based on such adjudication
the elections were directed be conducted. It may be noted that when the
application under Section 41-A of the Act of 1950 was filed on 23/08/2017
it was only the Charity Commissioner who could exercise power under
Section 50-A of the Act of 1950. When proceedings under Section 41-A of
the Act of 1950 were pending, Section 50-A came to be amended by
Maharashtra Act No.LV of 2017, that came into effect from 10/10/2017.
By such amendment this power was conferred on the Assistant or Deputy
Charity Commissioner. Thus, on the date when the proceedings were
decided on 01/03/2018 the Deputy Charity Commissioner was empowered
to exercise jurisdiction under Section 50-A of the Act of 1950. To that
extent, the exercise of jurisdiction in that regard cannot be faulted.
It is however to be noted that the direction issued in exercise of
jurisdiction under Section 50-A is based on the premise that there were only
twenty three members in the Trust. This is after recording a finding that the
ten members enrolled on 16/05/1999 were valid members. As held above,
the issue with regard to legality of membership could not have been gone
into under Section 41-A of the Act of 1950. Hence, the basis for the learned
Deputy Charity Commissioner to hold that there were only twenty three
members of the Trust and thus the necessity to amend the bye-laws is
without jurisdiction. According to the Petitioners, about eighteen members
were enrolled after 16/05/1999 besides the twenty three members enrolled
before 16/05/1999. This aspect is disputed by the respondents. This issue
was required to be resolved in appropriate proceedings but definitely not in
exercise of jurisdiction under Section 41-A of the Act of 1950. Since it has
been found that the only reason for issuing directions under Section 50-A(3)
of the Act of 1950 is the finding that there were only twenty three valid
members, the direction to seek amendment of the bye-laws of the Trust is
not sustainable. This direction having been issued on an incorrect legal and
factual premise, the same is liable to be set aside. Consequently, the
proceedings initiated in view of the order dated 01/03/2018 would not
survive. However, jurisdiction under Section 50-A can be exercised if the
situation so requires in the future.
9] Insofar as challenge to the order passed under Section 73-A of the Act of
1950 dated 07/02/2019 raised in Writ Petition No.4116 of 2019 is
concerned, the same would now not survive since the direction to initiate
proceedings under Section 50-A has been set aside as being one being
issued contrary to law. The challenge to the order dated 07/02/2019 is thus
rendered infructuous.
Page No. 29 of 39 21 January 2025 ::: Uploaded on - 22/01/2025 ::: Downloaded on - 22/01/2025 22:01:54 ::: Neeta Sawant WP-648-2025-FC 44) In operative paragraph 10(iii) of the judgment, this Court
directed termination of Scheme Application No. 12/2018 as under :
(iii) The Scheme proceedings initiated pursuant to the directions issued on
01/03/2018 would stand terminated as being non-est in law. Consequently,
the order dated 25/07/2019 passed by the learned Deputy Charity
Commissioner is set aside as the direction to initiate such proceedings
issued on 01/03/2018 by the learned Deputy Charity Commissioner has
been set aside. Trust Appeal No.43 of 2019 stands disposed of as
infructuous. However, it is clarified that this judgment would not preclude
exercise of jurisdiction under Section 50-A of the Act of 1950 in
accordance with law.
45) Thus, Scheme Application No. 12/2018 itself has been
terminated by reason of judgment of Division Bench dated 10 May 2024
and therefore any observations made by the Deputy Charity Commissioner
while deciding interlocutory application filed in such Scheme Application
cannot be relied upon in support of contention that there is any adjudication
of issue of validity of enrollment of members after 16 May 1999.
46) I therefore hold that though enquiry into the validity of
enrollment of members can be conducted by Assistant/Deputy Charity
Commissioner while deciding Change Report under Section 22 of the Act,
mere rejection of the Change Report would not automatically entail
termination of membership of newly enrolled members unless the
Assistant/Deputy Charity Commissioner in an enquiry under Section 22
holds that they were not validly enrolled. To paraphrase, loss of membership
to a Trust would result only on the basis of finding to that effect recorded by
Assistant/Deputy Charity Commissioner in enquiry conducted under
Section 22 and mere rejection of a Change Report relating to change in
Governing Council, in absence of any enquiry into the validity of
enrollment of new members, would not entail automatic termination of their
membership.
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47) Mr. Patwardhan has sought to cast aspersions on the manner in
which new members are enrolled in the General Body Meeting of 26
September 2015. Mr. Talkute has placed on record Minutes of the General
Body Meeting held on 26 September 2015 in which Resolution No.11 is
adopted for grant of post-facto approval to enrollment of 9 new members. It
appears that the Governing Council in its meeting of 29 December 2014 and
28 May 2015 had enrolled 6 + 3 = 9 new members and the General Body of
the Trust resolved to grant post-facto approval to enrollment of the said 9
members. Mr. Patwardhan would seek to question the authenticity of
Resolution No.11 shown to have been adopted in the General Body Meeting
on 26 September 2015 by inviting my attention to the agenda of General
Body Meeting published vide Notice dated 7 September 2015. He would
contend that the agenda for grant of post-facto approval to enrollment of 9
new members were never circulated and that there is nothing to indicate that
the additional subject was taken with the approval of the Chairman. In my
view, what is sought to be raised by Mr. Patwardhan is merely a surmise on
the basis of which it is difficult to record a conclusive finding at this stage
that there is anything erroneous in enrollment of the said 9 new members
through the two Governing Council Meetings held on 29 December 2014
and 28 May 2015 to which prima-facie approval is granted in the General
Body Meeting held on 26 September 2015. Mr. Talkute has placed on record
the Minutes of the Governing Council Meeting held on 29 December 2014
by which 6 new members were enrolled. In any case, if Mr. Patwardhan’s
clients desire to question the validity of enrollment of the said 9 new
members, they will have to question the same in appropriate proceedings
which issue is being discussed separately in the later part of the judgment.
48) Since this Court showed disinclination to uphold the objection
about enrollment of 9 members in general body meeting of 26 September
2015 read with managing committee meetings dated 29 December 2014 and
28 May 2015 at this stage, Mr. Patwardhan would raise an alternative
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objection that even if the membership of 9 persons is assumed to be valid on
account of post facto approval by the general body, the enrollment of other 9
members is required to be held invalid as their enrollment is done by the
managing committee when the Memorandum of Association empowers
only the general body to enroll new members. Mr. Talkute however relies on
resolution adopted by the general body on 16 May 1999 delegating the
power of enrollment of new members to the managing committee. In my
view this is something which needs to be decided in Section 22 inquiry if
any objection is raised about enrollment of those 9 members inducted by the
managing committee.
49) This is not a case which involves sudden introduction of 18 new
members. The 18 new members have been enrolled over a period of time
during 15 long years from the year 2000 to 2015 and it is difficult to conclude
at this juncture that their membership would automatically vanish only
because the Deputy Charity Commissioner did not approve occurrence of
change relating to election of Governing Councils. More importantly, the
Change Reports were never contested and nobody questioned the validity of
enrollment of new members by opposing the Change Reports on that
ground. It is also not a case that election of Governing Council members
during 2016 to 2019 was attributable only to the enrollment of the said 18
new members. Out of the said 18 new members, only 9 were enrolled by the
time the Change Reports were filed. Also of relevance is the fact that most of
the intervenors whom Mr. Patwardhan represents, have participated in the
General Body Meeting held on 26 September 2015 in which Resolution was
adopted for granting post-facto approval to enrollment of 9 new members
who got enrolled by the Governing Council in meetings held on 29
December 2014 and 28 May 2015. To make the case worse for the
Intervenors, some of them were part of Governing Council which adopted
Resolution in Meeting held on 29 December 2014 which decided to enroll 6
new members. Also of relevance is the fact that Shri. R. P. Patil (the first
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Intervener) functioned as the Secretary of the Trust all these years and filed
the relevant Change Reports. One of the Change Reports filed by him was
for acceptance of some of the new members. He has participated in each of
the managing committee and general body meetings and was a privy to
decision of enrolling new members. Can he now take a volte face and
question the right of those enrolled members to participate in Trust’s
elections ? The answer to mind appears to be in emphatic negative. It is
therefore highly questionable as to whether the Intervenors can now turn
around and question the enrollment of such new members which has taken
place in a staggered manner over a period of 15 longs years, that too with
their active support.
50) As observed above, the issue of validity of membership cannot
be decided by the Election Officer while preparing preliminary or final voters
list. It is the duty of the Election Officer to include name of every single
member in the voters list. The findings recorded by the Election Officer that
‘आक्षेपकर्ते सभासद होण्यासाठीच्या पात्रर्तेेच्या अटी पुर्ण करीर्ते नाहीर्ते म्हर्णून त्यांचा अक्षेप अर्ज
फेटाळर्णे योग्य वाटर्तेे’ clearly seeks to suggest that he has ventured into the area of
validity of membership which jurisdiction he does not possess. Once the
Division Bench of this Court in its order dated 10 May 2024 had set aside
the decision of the Deputy Charity Commissioner for deletion of names of
18 enrolled members after 16 May 1999, it was otherwise highly improper on
the part of the Election Officer to infuse life into the said illegal decisions of
the Deputy Charity Commissioner, which was already set aside by this
Court. It is inconceivable that what could not be done by a Deputy Charity
Commissioner under the provisions of Section 41A of the Act can be
permitted to be done by the Election Officer while deciding the objections to
the preparation of preliminary voters list.
51) The last issue that needs to be decided is about the exact
proceedings in which the issue of validity of enrollment of 18 new members
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can be decided, in the facts and circumstances of the present case. The
Division Bench of this Court has already ruled that the said issue could not
have been decided while passing an administrative order under Section 41A
of the Act. I have held that the issue can also not be decided by the Election
Officer while deciding objections to preparation of voters list. In my view,
the said issue needs be decided, in the unique facts and circumstances of the
present case, in the enquiry which would be conducted with regard to the
change that would take place after conduct of the elections. Once the
Governing Council is elected as a result of the elections, the change would
get reported to the Deputy Charity Commissioner for alteration of entries in
Schedule-I and at that stage, the Deputy Charity Commissioner, can decide
the issue, if raised, as to whether enrollment of 18 members after 16 May
1999 was valid and whether they had right to vote in the elections. Thus,
intervenors, whom Mr. Patwardhan represents, would not be remediless and
can always challenge the election by questioning the validity of enrollment
of members after 16 May 1999, as well as right to participate and vote in the
elections.
52) In the facts and circumstances of the present case, it would also
be more appropriate to permit members enrolled after 16 May 1999 to
participate in the election process at this juncture, rather than keeping them
away. They are functioning as members of the Trust for the last several years
and merely because appointment of Governing Council members could not
be approved by Deputy Charity Commissioner on account of rejection of
Change Reports, it would be iniquitous to deny them opportunity to
participate in the election process. Also of relevance is the fact that in the
final voters list, only 16 members are included by the Election Officer who
were members as on 16 May 1999. Thus, elections to the Governing Council
of the Trust are thus sought to be conducted by letting only those 16
members to participate therein by keeping out those members who not only
got enrolled during the next 15 long years, but who have participated in the
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activities of the Trust for the last 25 long years. It would therefore be
appropriate to allow the members enrolled after 16 May 1999 to participate
in the election process, at this juncture, rather than excluding them thereby
subjecting the election process to unsusceptible challenge by them while
deciding the Change Report. At the same time, the Intervenors would not be
remediless and if they believe that 18 members have not been validly
enrolled or that they were not eligible for being enrolled, they can always
question the Change Report filed for reporting change in composition of
Governing Council by raising the issue of validity of enrollment of
members.
53) Before parting it would be necessary to deal with the
submission of Mr. Patwardhan that it would be impermissible for this Court
to interfere in election process by entertaining the present petition. He has
relied upon judgment of Single Judge of this Court in Shivaji (supra)
wherein this Court held in para 25-30 as under:
25. The rival submissions of the parties pertaining to the membership
involve disputed questions of facts. Various proceedings pending amongst
them and decided in past have to be taken into account to address the issue
of membership. This Court cannot embark an enquiry into hotly disputed
questions of facts, namely membership in the present matter. The
petitioners have alternate remedy of agitating the validity of membership
either after conclusion of elections in the change report to be submitted
U/Sec. 22 of the Act or independently before the competent forum. It is
open for the parties to question the validity of the election, procedure
adopted for the same, validity of voters as well as validity of elected
candidates. A full fledged enquiry which is quasi judicial in nature is
contemplated U/Sec. 22 of the Act. There are further remedies also
provided under the Act after the decision U/Sec. 22 of the Act. An
adequate and full fledged remedial procedure is available for the petitioners.
Therefore, I prefer not to answer the validity of the membership of the
litigating parties in this matter.
Point No. (III) Whether the directions to conduct election from list of
members Exhibit 46 in Change Report No. 3239 of 2018 is valid?
26. The learned counsel for the petitioners have vehemently submitted that
the Dy. C. C. is not empowered U/Sec. 41A of the Act to dwell upon the
membership and issue any directions restricting the right to participate in
the elections. They have strong objection for directions issued in clause No.
4 of the impugned judgment and order. For that purpose they have relied
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upon various judgments referred to above. It is clarified that the findings
recorded by Dy. C. C. that the list of members at Exhibit 46 in Enquiry No.
3239 of 2018 shall not be an impediment to reagitate them in an enquiry
U/Sec. 22 of the Act or before any other competent forum. This aspect can
be gone into independently. The validity of Clause No. 4 of the impugned
judgment can be decided U/Sec. 22 of the Act after conclusion of the
election. Considering the disputed questions of facts, availability of
alternate remedy and want of affected parties before this Court, I defer to
answer point No. III and relegate the parties to the alternate remedy.
Point No. (IV) Whether it is permissible to entertain the petitions at this
stage of election process?
27. The learned counsel for the petitioners have cited judgment dated
06.09.2023 rendered by the Supreme Court in the matter of Union Territory
of Ladak v. Jammu and Kashmir National Conference in Civil Appeal No.
5707 of 2023, Ahmednagar Zilla S.D.V. & P. Sangh Ltd. v. State of
Maharashtra, (2004) 1 SCC 133, Pundlik v. State of Maharashtra, AIR
2005 SCW 4371. So also the judgment of this Court in the matter
of Chandrakant Mahadev Patole v. State of Maharashtra, 2010 All MR
(Supp.) 457 to buttress that the powers of the High Court cannot be
faltered, just because the process of election has commenced. To repel the
submissions, the learned counsel for the respondent No. 3 has also cited the
judgment of of the Supreme Court in the matter of Sant Sadguru Janardan
Swami (Moingiri Maharaj) Sahkari Dugdha Utpadak Sanstha v. State of
Maharashtra (supra).
28. The judgments cited by both sides are pertaining to the elections of the
Co-operative societies. The peculiar feature of the matter in hand is that the
litigating sides wanted to have election. The tenure of the outgoing
committee is expired long back. Besides clause No. 4, there are no serious
disputes. Hence I am of the considered view that decisions cited at bar for
exercise of powers of the High Court when election process has
commenced may not be dilated further.
29. In the present case the election is of a trust which is to be regulated by
bye-laws and/or the directions issued by the Charity Commissioner under
the Act. The election process and the result are subject to the approval of
the competent authority U/Sec. 22 of the Act. It is special feature of the
administration of the trust under the provisions of the Act that election
comes within the purview of Section 22 of the Act. It is mandatory U/Sec.
22(1) of the Act to report the change to the Deputy or Assistant Charity
Commissioner within 90 days. This is a sufficient safeguard provided by the
statute. Therefore, any illegality in the process of election including the
membership cannot go unnoticed. They are always decided in the scrutiny
of Section 22 of the Act. The election programme has progressed to
advance stage. The list of contesting candidates is to be published on
06.11.2023. Thereafter the proper voting is to be conducted on 26.11.2023
and result is also scheduled on the same day. Therefore, I answer point No.
IV in the negative.
30. In view of above discussion, I hold that no interference is called for in
the impugned judgment and order dated 09.10.2023 passed by the learned
Deputy Charity Commissioner, Latur in Suo Motu Enquiry No. 538 of
2023 as well as the election process. Both the writ petitions are disposed of
with liberty to the litigating parties to agitate all the issues including validity
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of membership, election process, results thereof before the competent
authority after conclusion of election process. Rule is discharged.
54) In my view, the judgment in Shivaji cannot be read in support of
an absolute proposition that this Court cannot entertain the present petition
only because the election process has commenced. The judgment in Shivaji is
rendered in the light of facts of that case. In Shivaji, while issuing direction
under Section 41A of the Act to hold elections, the Deputy Charity
Commissioner had simultaneously restricted the elections only to the
members enlisted in Exhibit-46 of Change Report No. 3239/2018. It appears
that the members whose names did not find place in said exhibit questioned
the order of the Deputy Charity Commissioner inter alia on the ground that
the Deputy Charity Commissioner did not have jurisdiction to declare the
members listed in Exhibit-46 as valid members. While upholding the
directions for holding the elections, this Court did not answer the issue of
validity of membership of litigating parties on the ground that Petitioners
therein had the alternate remedy of agitating validity of membership after
conclusion of elections in the Change Report submitted under Section 22 of
the Act. In fact, one of the issues before this Court was about jurisdiction of
the Deputy Charity Commissioner to deal with the issue of membership
while deciding the proceedings under Section 41A of the Act. This Court
has however not decided the said issue. The issue has subsequently been
decided in the present case by Division Bench on 10 May 2024. The learned
Single Judge did not have benefit of judgment of the Division Bench of this
Court dated 10 May 2024 in accordance with which it could have been held
that direction of the Deputy Charity Commissioner therein to decide the
issue of membership was invalid. However, since this Court in Shivaji held
that issue of membership can be decided under Section 22 of the Act after
conclusion of elections, it chose not to interfere in ongoing election process
by entertaining the petition. In the present case however, the direction of the
Deputy Charity Commissioner for exclusion of 18 members while deciding
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Section 41A proceedings has been expressly set aside by Division Bench and
as of now, there is no order which seeks to exclude them from membership
of Trust. This is a reason why I have arrived at a conclusion that the
elections can go ahead, as of now, by including names of members enrolled
after 16 May 1999 in the voters list. Therefore, judgment in Shivaji would not
come in way of this Court directing slight tweaking of the election program,
which as on the date of closure of hearing, had progressed only upto receipt
of nominations. This course of action however is adopted considering the
unique facts and circumstances of the case.
55) I am therefore of the view that the impugned order dated 10
January 2025 passed by the Election Officer is indefensible and liable to be
set aside. The petition accordingly succeeds and I proceed to pass the
following order:
(i) Order dated 10 January 2025 passed by the Election
Officer as well as Final Voters List dated 13 January 2025
are set aside.
(ii) The Election Officer is directed, as of now, to include the
names of all the 18 members enrolled after 16 May 1999
in the Final Voters List and shall accordingly proceed
ahead with the elections by suitably amending the
election program.
(iii) The issue of right of members enrolled after 16 May 1999
to participate and vote in the elections is expressly kept
open to be agitated, if necessary, in inquiry under Section
22 of the Act.
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made absolute. Interim Application also stands disposed of. Considering the
facts and circumstances of the case, there shall be no order as to costs.
[SANDEEP V. MARNE, J.]
Digitally
signed by
NEETA
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date:
2025.01.22
10:22:21
+0530
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