1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CAS NO. 379 OF 2009 IN SECOND APPEAL NO. 603 OF 2007 (Haribhau Nathoba Kshirsagar vs. Rameshwar M. Chandak & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. SEPTEMBER 11, 2009. Heard Shri Khapre, learned counsel for the appellant, Shri De, learned counsel for respondents No. 1 to 5 and Shri Doifode, learned AGP for respondent No. 7. Respondents No.1 to 5 in Second Appeal have filed this application for clarification and modification of order of status quo passed in the matter by me on 11.12.2007 and 20.02.2008. Shri De, learned counsel, who has filed this application has contended that at the relevant time elections dated 15.11.2007 or then the circumstances in which those elections were held have not been properly placed for consideration before this Court. According to him, the order of status quo granted on 11.12.2007 needs to be interpreted in the background of certain facts which do not find mention in the orders sought to be modified or clarified. He states that Enquiry Change report No. 864 of 2005 was rejected by the Assistant Charity Commissioner on 30.03.2007 and direction No.2 2 in that order was then challenged before the Joint Charity Commissioner in Appeal No. 23 of 2007. The Joint Charity Commissioner has by order dated 06.08.2007 set aside that direction and issued fresh directions stating that list of members of Trust would include three living founder members and five living ordinary members viz., the appellants before the Joint Charity Commissioner (present applicants). This was then further challenged in appeal before the District Judge – I at Washim which came to be registered as MJC No. 73 of 2007. In that appeal, the application for stay was moved and that was rejected on 29.08.2007. The said rejection was challenged in Writ Petition No. 3909 of 2007 and the High Court by order dated 30.08.2007 granted ad interim relief and stayed operation and effect of the order dated 06.08.2007 passed by the Joint Charity Commissioner. Writ Petition was finally disposed of on 26.09.2007 without recording any finding and by directing the District Judge – I, Washim, to dispose of MJC No. 73 of 2001 finally. Shri De. Learned counsel points out that in this back ground on 15.11.2007, the appellants before this Court claimed to have held elections and because of orders passed by this Court on 11.12.2007 and 20.02.2008, the said body allegedly elected on 15.11.2007 continues to function. According to him, when the learned District Judge refused stay on 29.08.2007, the order dated 06.08.2007 issued by the 3 Joint Charity Commissioner was very much in force and when this Court in Writ Petition No. 3909 of 2009 granted ad interim relief on 30.08.2007 or thereafter made the matter time bound on 26.09.2007, these orders do not have the effect of quashing the directions issued by the Joint Charity Commissioner in order dated 06.08.2007. He states that by taking advantage of ad interim relief granted, the appellants have revived the order dated 30.03.2007 passed by the Assistant Charity Commissioner and conducted elections as alleged in pursuance thereof. He argues that the orders passed by this Court in Writ Petition No. 3909 of 2007, cannot be interpreted to mean that said order dated 30.03.2007 had revived and hence elections even if held on 15.11.2007 are illegal and unsustainable. He further states that on 26.11.2007, MJC No. 73 of 2007 itself was finally dismissed by District Judge – I upholding the orders of Joint Charity Commissioner. He contends that, therefore, even if any elections were held on 15.11.2007 after the order of Joint Charity Commissioner was upheld on 26.11.2007, those elections loose their relevance and the order of status quo passed by this Court on 11.12.2007, therefore, needs to be viewed in this legal background. He further states that these facts which have important bearing on the grant of interim relief have not been appropriately evaluated by this Court while passing the orders of status quo and there is no mention of any of these facts. According to him, the 4 order, therefore, needs to be modified or clarified and the status quo as prevailing prior to alleged elections on 15.11.2007 need to be preserved and ordered. Shri Khapre, learned counsel for the appellants has contended that in Writ Petition No. 3909 of 2007, this Court recorded a finding that the respondents were prima facie not the members and stay was granted. According to him, the moment order of Joint Charity Commissioner dated 06.08.2007 was stayed, the order of Assistant Charity Commissioner dated 30.03.2007 revived and the appellants were justified in holding the elections in terms of said directions. He points out that elections conducted on 15.11.2007 were brought to the notice of learned District Judge – I before the matter was decided on 26.11.2007 and he further states that a document envisaging the filing of Change Report before the Assistant Charity Commissioner in pursuance thereto is also annexed along with memo of Second Appeal and it was also pointed out to this Court. He, therefore, contends that this Court has considered the relevant aspects. He further states that the Court while deciding Writ Petition No.3909 of 2007 found that prima facie respondents i.e. present applicants are not the members. He invites attention to orders dated 11.12.2007 and 20.02.2008 to show that this Court also has applied its mind only to that aspect and after having 5 prima facie concluded that the appellants did not exercise any rights of membership for several years, the interim orders have been passed. He contends that no clarification as sought for be granted because it would defeat this application of mind. The perusal of orders dated 11.12.2007 and 20.02.2008 passed by me reveal that the entire history as narrated by Shri De, learned counsel has not been mentioned therein. The facts as disclosed by the learned counsel are not in dispute and in reply affidavit filed by Shri Khapre, learned counsel, on behalf of the appellant, the relevant facts i.e. the dates on which the events occurred have not been disputed. The dispute is only in relation to the effect of interim orders passed by this Court in Writ Petition No. 3909 of 2007. It is to be noted that when the matter was considered by this Court on 11.12.2007, the grievance made was that the authorities below had recorded a finding of membership in favour of the respondents merely by accepting certain documents. A judgment of the Hon’ble Apex Court in the case of D. Dwarakanath vs. C.B.E. Society, reported at 2007 (6) Mh.L.J. 19 was then pointed out to show how the Judicial Authority has to apply mind to find out the membership or otherwise. After looking into said ruling, this Court issued notice and also directed maintenance of status quo. The said order was continued on 09.01.2008 and thereafter the parties had tried to settle the matter amicably. The matter was 6 adjourned on various dates on 14.01.2008, 17.01.2008, 23.01.2008, 31.01.2008, 01.02.2008, 05.02.2008, 07.02.2008, 12.02.2008, 14.02.2008. Ultimately, the matter came before this Court on 20.02.2008 when it was informed that the efforts to settle the matter amicably did not materialise. On that date, therefore, a substantial question of law was formulated and Second Appeal was admitted. While considering the question of grant of interim relief, it was found that the last document on which the present applicants (respondents in Second Appeal) relied on, show that their membership was of 1983 and it was in dispute. It was further found that after said 1983 document, for a period of 23 years i.e. till 2005, there was no document or proof with present applicants to show that they exercised rights of membership at any point of time. The order of status quo granted on 11.12.2007 came to be continued in this background. The question whether the events sought to be pressed into service by Shri De, learned counsel were pointed out to this Court when this Court passed earlier orders, is not very relevant. According to Shri Khapre, learned counsel, events were pointed out and this Court has considered the most important point of exercise of membership rights by the respondents. According to Shri De, the events were perhaps not pointed out and according to him, as the events do not find mention in the orders, most probably the same are not pointed out. 7 However, he fairly states that he has stepped in the matter later on and hence he will not like to press the issue further. The events pointed out by Shri De, learned counsel show that the order dated 30.03.2007 did not revive and, therefore, the elections in pursuance thereof could not have been conducted on 15.11.2007. The District Judge had refused stay of the order of Joint Charity Commissioner dated 06.08.2007 and this Court had only granted interim stay. There is no final order after adjudication in Writ Petition No. 3909 of 2007 by this Court. But then even if one ignores the elections conducted on 15.11.2007, still it is to be noted that while passing orders on 11.12.2007 and 20.02.2008, this Court has attempted to find out whether the respondents before it were in a position to point out that they were vigilant as members at any point of time or that they had raised objections suddenly. The perusal of both orders show that the respondents were prima facie found not to be exercising any rights of membership after 1983. This Court in view of said finding has granted status quo. The said finding is not being assailed either way in present application by the respondents. Thus, this Court has granted status quo after considering the most cardinal aspect of role of present applicants in the administration of trust and their diligence. The events being pressed into service by Shri De, learned counsel, therefore, are not relevant for either clarifying or modifying said orders. 8 Civil Application is, therefore, rejected. However, there shall be no order as to costs. JUDGE *GS.