{1} lpa3311.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO.33 OF 2011 IN WRIT PETITION NO.10336 OF 2010 1 Jalgaon Zilla Maratha Vidya Prasarak Sahakari Samaj Limited, Jalgaon, through its President Shri Bhagwanrao s/o Jagatrao Deshmukh, age: 75 years, Occ: Agriculture, R/o Varangaon, Tq. Bhusawal, District Jalgaon. 2 Jalgaon Zilla Maratha Vidya Prasarak Sahakari Samaj Limited, Jalgaon, through its Vice President Shri Virendra Rameshchandra Bhoite, age: 38 years, Occ: Agriculture, R/o Bhoite Nagar, Jalgaon, District Jalgaon. 3 Jalgaon Zilla Maratha Vidya Prasarak Sahakari Samaj Limited, Jalgaon, through its Secretary and Delegate Shri Tanaji s/o Keshavrao Bhoite, age: 56 years, Occ: Legal Practitioner and Agriculture, R/o Bhote Nagar, Jalgaon, District Jalgaon. Appellants Versus 1 The State of Maharashtra, through the Secretary, Higher & Technical Education Department, Mantralaya, Mumbai. {2} lpa3311.odt 2 The North Maharashtra University, Umainagar, Bambhori, Jalgaon, District Jalgaon, through its Registrar. 3 The Vice Chancellor and the appellate Authority, North Maharashtra University, Umainagar, Bambhori, Jalgaon, District Jalgaon. 4 Jalgaon Zilla Maratha Vidya Prasarak Sahakari Samaj Limited, Jalgaon, through its Chairman Mr.Dr.Satish Chintaman Devkar, age: 51 years, Occ: Agriculture, R/o Brooke Bond Colony, Ring Road, Jalgaon. 5 Jalgaon Zilla Maratha Vidya Prasarak Sahakari Samaj Limited, Jalgaon, through its Secretary, Advocate Vijay s/o Bhaskarrao Patil, age: 42 years, Occ: Legal Practitioner, R/o 71, Dixitwadi, Zilla Peth, Jalgaon, District Jalgaon. Respondents Shri V.D.Hon, advocate for appellants. Shri R.P.Phatke, A.G.P. for Respondent No.1. Shri A.B.Girase, advocate for Respondents No.2 and 3. Shri V.D.Salunke, advocate for Respondents No.4 & 5. WITH LETTERS PATENT APPEAL NO.45 OF 2011 IN {3} lpa3311.odt WRIT PETITION NO.10499 OF 2010 1 Jalgaon Zilla Maratha Vidya Prasarak Sahakari Samaj Ltd., Jalgaon, through the Chairman Dr. Satish s/o Chintaman Deokar, age: 51 years, Occ: Agril., R/o Brook Bond Coloney, Ring Road, Jalgaon. 2 Jalgaon Zilla Maratha Vidya Prasarak Sahakari Samaj Ltd., Jalgaon, through its Hon. Secretary, Vijay s/o Bhaskarrao Patil, age: 42 years, Occ: Advocate, R/o 71, Dixitwadi, Zillha Peth, Jalgaon. Petitioners Versus 1 The North Maharashtra University, Umavinagar, Bambhori, Jalgaon, through its Registrar. 2 The Vice Chancellor and Appellate Authority, the North Maharashtra University, Umavinagar, Bambhori, Jalgaon. 3 The State of Maharashtra, through Secretary, Higher and Technical Education Department, Mantralaya, Mumbai-32. 4 Jalgaon Zilla Maratha Vidya Prasarak Sahakari Samaj Ltd., {4} lpa3311.odt Jalgaon, through its President Shri Bhagwanrao s/o Jagatrao Deshmukh, age: 75 years, Occ: Agriculture, R/o Varangaon, Tq.Bhusawal, District Jalgaon. 5 Jalgaon Zilla Maratha Vidya Prasarak Sahakari Samaj Ltd., Jalgaon, through its Vice President Shri Virendra s/o Rameshchandra Bhoite, age: 38 years, Occ: Agriculture, R/o Bhoite Nagar, Jalgaon, District Jalgaon. 6 Jalgaon Zilla Maratha Vidya Prasarak Sahakari Samaj Ltd., Jalgaon, through its Secretary and Delegate Shri Tanaji s/o Keshavrao Bhoite, age: 56 years, Occ: Legal Practitioner & Agri., R/o Bhoite Nagar, Jalgaon, District Jalgaon. Shri V.D.Salunke, advocate for appellants. Shri A.B.Girase, advocate for Respondents No.1 & 2. Shri R.P.Phatke, A.G.P. for Respondent No.3. Shri V.D.Hon, advocate for Respondents No.4, 5 & 6. CORAM : D.B.BHOSALE AND R.M.BORDE, JJ. DATE : 15 th February, 2011 ORAL ORDER (Per R.M.Borde, J.): {5} lpa3311.odt 1 The appellants in both the Letters Patent Appeals are raising exception to the common order passed by the learned Single Judge in Writ Petition Nos.10336 of 2010 and 10499 of 2010. Writ Petition No.10336/2010 was presented by the Jalgaon Zilla Maratha Vidya Prasarak Sahakari Samaj, through its President Bhagwanrao Jagatrao Deshmukh, Vice President Virendra Bhoite and Secretary and Delegate Tanaji Bhoite. Whereas, Writ Petition No.10499/2010 was presented by the same Institution, however, represented by Dr.Satish Deokar, claiming himself to be the Chairman of the Institution, and Vijay Bhaskarrao Patil, who claims to be the Secretary and Delegate selected by the Management for the purposes of participation in the election to the North Maharashtra University, Jalgaon. Both the groups represented by the respective President and office bearers as well as the Delegates claim to be incharge of the affairs of the Managment of Jalgaon Zilla Maratha Vidya Prasarak Sahakari Samaj, Jalgaon. 2 Section 25 of the Maharashtra Universities Act, 1994 prescribes constitution of the Senate, whereas, Section 27 of the Act deals with constitution of the Management Council. The Act provides that the Senate shall include eight representatives of the Management of affiliated Colleges or recognised Institutions elected by the electoral college consisting of Chairman or President or representative of the Management, as the Management may {6} lpa3311.odt recommend. Whereas, Section 27 provides for representation of two representatives of the Management elected by the Senate from amongst representatives of the Management, of whom, one shall be a woman representative. 3 The Returning Officer appointed for the purposes of conducting elections to the Senate and the Management Council, called upon the Managements running affiliated Colleges within the area of operation of the University to send names of Deletes for their participation in the election process. So far as the appellant – Education Institution is concerned, there were two names forwarded by two rival groups, who claim to be in charge of the affairs of the Institution / Trust. Appellants in both the appeals claim to represent the real Management, which is in charge of the affairs of the Educational Institution. It is not disputed that the Institution is registered as a Trust under the provisions of Bombay Public Trusts Act, 1950 and is also registered as Society under the provisions of Maharashtra Co-operative Societies Act, 1960. The Institution is not registered as a Society under the provisions of Societies Registration Act. 4 The Returning Officer, after receiving two different proposals from the respective appellants before this Court, for inclusion of names of Delegates sent by them, called upon them to place evidence before him to substantiate their claims. The {7} lpa3311.odt Returning Officer, in observance of the directives issued by this Court in Writ Petition No.4492/2010, proceeded to decide the claims raised by both the rival groups, after extending them an opportunity of hearing. The Returning Officer, after considering the material placed before him, could not satisfy himself and arrive at a conclusion as to which of the Delegates, amongst two, is the representative of the Management. The Returning Officer, as such, turned down both the proposals submitted by the respective parties claiming to represent the Management of the Trust/Education Institution. 5 The appellants in both the appeals raised challenge to the order passed by the Returning Officer by presenting two different appeals to the Vice Chancellor. The Vice Chancellor, after extending an opportunity of hearing to appellants in both the appeals, rendered decision on 29.10.2010 and confirmed the order passed by the Returning Officer. While disposing of the appeals, the Vice Chancellor recorded in the order that, on consideration of the proposals submitted by appellants in both the appeals and on perusal of the record filed by the respective appellants to substantiate their claims, it is not possible for the appellate authority to arrive at any definite conclusion as to which of the group can be recognised or representative body to be in charge of affairs of the Institution. The Vice Chancellor, after considering rival contentions, was pleased to reject both the appeals, thereby {8} lpa3311.odt confirming the decision rendered by the Returning Officer. 6 The appellants, in both the Letters Patent Appeals, challenged the order passed by the Vice Chancellor confirming the order passed by the Returning Officer, by presenting two separate writ petitions, being Writ Petition No.10336/2010 and Writ Petition No.10499/2010. The learned Single Judge of this Court, after hearing the petitioners in both the petitions, was pleased to reject both the petitions, in view of the judgment and order dated 28.01.2011. 7 We have perused the orders passed by the Returning Officer, the Vice Chancellor dealing with the appeals, as well as the learned Single Judge of this Court. We have also heard arguments advanced by learned Counsel for respective appellants as well as learned Counsel representing the North Maharashtra University. 8 The term “management” is defined in sub-section (20) of Section 2 of the Maharashtra Universities Act, 1994, which reads thus: 2 Definitions.- (20)“management” means the trustees or the managing or governing body, by whatever name called, of any trust registered under the Bombay Public Trust Act, 1950 (Bom XXIX of 1950), or any society registered {9} lpa3311.odt under the Societies Registration Act, 1860 (21 of 1860), under the management of which one or more colleges or recognised institutions or other institutions are conducted and admitted to the privileges of the university: Provided that, in relation to any college or institution established or maintained by the Central Government or the State Government or a local authority like a Zilla Parishad, Municipal Council or Municipal Corporation, it means, respectively, the Central Government or the Municipal Corporation, as the case may be; On consideration of the definition of “management”, it is clear that the managing or governing body of a trust or a society, registered under the Societies Registration Act, shall have to be recognised as a Management of the affiliated college or Institution. So far as Jalgaon Zilla Maratha Vidya Prasarak Sahakari Samaj, Jalgaon, is concerned, it is not disputed that the Institution is registered as a Trust under the Bombay Public Trusts Act. Although it is claimed by the appellants in L.P.A. No.33/2011, that the Institution is registered under the provisions of Maharashtra Co-operative Societies Act, and the appellants are representatives of the Management legally constituted under the provisions of the said Act (Act of 1960), the contention raised by the appellants, in that behalf, cannot be accepted for the reason that the term {10} lpa3311.odt “management” as defined under sub-section (20) of Section 2 of the Maharashtra Universities Act, does not make any reference to a body constituted under the provisions of the Maharashtra Co- operative Societies Act. It is, therefore, required to be ascertained as to which of the appellants in both the appeals, can be recognised as representative body of the Institution in reference to the provisions of the Bombay Public Trusts Act. It is to be noted that the appellants in both the appeals claim that the Management represented by them is elected for five years’ term during 2003 to 2007 and 2008 to 2012 and Change Report submitted by the respective appellants in both the appeals are pending for consideration with the Assistant Charity Commissioner. It is also not disputed that the respective appellants in both the appeals have presented Change Reports bearing CR. Nos.47/2003 and 49/2003 in respect of the elections to the managing body of the Trust for a period between 2003 to 2007, whereas, the change, stated to have occurred in respect of Management of the Trust, has been reported to the Assistant Charity Commissioner by appellants in both the appeals, vide Change Report (CR) Nos.96 2008 and 143/2008. It is also not disputed that the Change Reports submitted by the respective appellants in both the appeals are pending consideration before the Assistant Charity Commissioner and no decision is arrived at, as yet. It was, therefore, difficult for the Returning Officer or the appellate authority to record finding as to which of the representative group, {11} lpa3311.odt amongst the two, is in charge of the affairs of the Trust/education Institution. 9 Our attention is invited to a reported judgment in the matter of Chembur Trombay Education Society & others Vs. D.K.Marathe & others, reported in 2002 (3) Bombay Cases Reporter, 161. It is contended that Section 22 of the Bombay Public Trusts Act does not provide that the change will take effect only after approval of the authority. It only provides that the change is to be notified to the authority within three months. The change takes effect from the date of resolution and not from its approval. However, in the instant matter, the appellants in both the appeals, claim that they are in charge of the affairs of the Trust and the appellants in both the appeals have tendered applications for recording change under Section 22 of the Bombay Public Trusts Act, to the Assistant Charity Commissioner. In these circumstances, it is difficult to ascertain as regards acceptability of claim of either of the parties. 10 The appellants, in both the appeals, have referred to a number of documents with a view to substantiate their contention that the respective appellants in both the appeals are in charge of the affairs of the Educational Institution/Trust. 11 Shri Hon, learned Counsel for the appellants in L.P.A. {12} lpa3311.odt No.33/11, contends that the University has transmitted communication to the appellants, being the office bearers of the Educational Institution/Trust. The appellants in L.P.A. No. 33/2011, it is claimed, are operating the Bank Accounts and are controlling the activities of the Institution. 12 Similar claim is also put forth by the appellants in L.P.A. No.45/2011. Shri Salunke, learned Counsel for the appellants in L.P.A. No.45/2011, contends that the representative of the appellants – Shri Vijay Bhaskar Patil had participated in the process of election as a representative of the Management in the year 2000. Shri Patil was also elected to the Senate for a term during 2000-2005. It is also claimed that Regular Civil Suit No. 405/2000, presented by Shri Patil, is pending and in view of the directions issued in the said suit, below application Exhibit-6, dated 13.11.2000, he is entitled to represent the Institution/Trust. The directions issued below Exhibit-6, are in respect of participation of Shri Vijay Bhaskar Patil, in the process of election, during the relevant period. It is evident from the record that both the groups, represented by respective appellants, have presented Change Reports, claiming themselves to be the elected representatives of the Trust and those Change Reports are pending adjudication before the Assistant Charity Commissioner. The Returning Officer as well as the appellate authority were justified in observing that, on the basis of material placed on record, it is {13} lpa3311.odt difficult to ascertain as to which of the delegate, nominated by respective rival Managements, is entitled to participate in the process of election. 13 The Returning Officer, while finalising the list of voters for the purposes of holding election to the representative body of the University, is expected to scan the material placed on record in support of the rival claims and form his opinion on the basis of material so produced. Prima facie satisfaction of the Returning Officer, in respect of validity of the claim put forth by the rival claimants, is essential. The Returning Officer, while considering the rival claims, is not expected to probe in detail and record his findings in respect of genuineness of the claims. In the instant matter, considering the voluminous record produced by the rival claimants before the Returning Officer, the Returning Officer could not satisfy himself as regards the validity of the claims raised by the rival claimants and as such, he proceeded to turn down both the proposals. In the given set of facts and considering the material placed on record by the parties, neither the Returning Officer nor the appellate authority i.e. the Vice Chancellor, had fallen in error in turning down both the proposals tendered by the rival claimants. While finalising the voters’ list and while considering correctness of the claims raised by the delegates, prima facie satisfaction of the Returning Officer, on the basis of material produced on record before him, is essential. However, in {14} lpa3311.odt the given set of facts, the Returning Officer or the appellate authority could not satisfy themselves as regards the validity of the claims put forth by the rival claimants. The learned Single Judge has also adverted to this aspect and has rightly confirmed the orders passed by the Returning Officer as well as the Vice Chancellor. We do not find any error apparent on the face of the record necessitating/causing interference in the concurrent orders passed by the lower authorities, which have been confirmed by the learned Single Judge of this Court. 14 It is also brought to our notice that the delegate proposed by the appellants in L.P.A. No.33/2011 is under detention and is lodged in jail. The order of detention has been issued under the provisions of Maharashtra Prevention of Dangerous Activities of Slum-Lords, Bootleggers and Drug-Offenders Act, 1981 and as such, is not, in all probabilities, available for participation in the process of election. However, we need not consider the objection raised in that behalf, for the reason that we do not find any error apparent on the face of record in the order passed by the learned Single Judge while confirming the orders passed by the lower authorities. 15 Shri Girase, learned Counsel appearing for the University, has pointed out that the programme of election has already been published by the University and 16th February, 2011, {15} lpa3311.odt is the last date prescribed for submission of nomination papers. It is urged by the Counsel, appearing for the University, that considering the progress of the election, which has reached the stage of acceptance of the nomination papers, interference by this Court is not warranted. 16 It is true that the process of election has reached the stage of acceptance of nomination papers and considering the progress of the election process, we are of the opinion that apart from the reasons recorded above, interference, at this late stage of the election process, is not warranted. 17 For the reasons set out above, we are of the considered opinion that no interference is called for in the Letters Patent Appeals, as those are devoid of merit. 18 Both the Letters Patent Appeals, therefore, stand dismissed. Civil Applications stand disposed of. R.M.BORDE D.B.BHOSALE JUDGE JUDGE adb/lpa3311