Tahiliani 1 fa1224.10.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. FIRST APPEAL NO. 1224 OF 2010 WITH CIVIL APPLICATION NO. 3232 OF 2010 Manik Sidhanna Patil & Ors. .... .... ... Appellants. V/s Vithal Nagappa Mali & Ors. ... .... ...Respondents. Mr.G.S.Godbole i/by Mr.Drupad Patil, Adv. For the appellants. Mr.Sunil D. Dighe, Adv. For the respondents. CORAM: B.R. GAVAI, J. 8th September, 2010 PC: The present appeal arises out of concurrent orders passed by the learned Joint Charity Commissioner, dated 12.11.2008 thereby allowing Appeal No. 2/2004, filed by the respondent No.1 and the order dated 3.8.2010 passed by the learned District Judge, Pandharpur dismissing the Regular Civil Appeal No. 65/08 filed by the present appellant. 2. The dispute pertains to change report which was required to be effected, as according to the appellants, the elections were held on 29.12.1987. According to the appellants, said elections were held in accordance with the constitution and accordingly to change report was filed. Initially the said change report was filed by the Assistant Charity Commissioner. Being aggrieved thereby revision was preferred by the present appellants. The revision was allowed and the matter was remanded back to the Assistant Charity Commissioner. On remand the Assistant Charity Commissioner accepted the change report. Being aggrieved thereby the respondents had preferred an appeal before the Joint Charity Commissioner, which came to be allowed. Being aggrieved thereby an application under section 72 of Bombay Public Trusts Act, was filed before the learned District Judge. The learned Tahiliani 2 fa1224.10.sxw District Judge dismissed the same. Hence the present appeal. 3. Mr.Godbole, learned counsel appearing on behalf of the appellants has canvassed the following submissions: (i) That the provisions of the constitution have not been properly construed by both the courts below and therefore a question of law as to whether the provisions of constitution have been rightly or wrongly construed arises for consideration; (ii) That though the judgment of the Apex Court in the case of Hidayatkhan Bismillakhan Pathan Vs. Vaijnath & Ors., 2009 (4) Bom. C.R. 27 was cited before the learned District Judge to the effect that if by passage of time no effective order could be passed, the Courts should refrain from passing orders, was not considered by the learned appellate court; (iii) The Courts have failed to take into consideration that when all the other members have received notice, it was not possible for respondent No.1 had not received the notice and as such ought not to have interfered with the finding of learned Assistant Charity Commissioner. It is further submitted that no prejudice has been pointed out by the respondent No.1. 4. Though the present appeal is filed as First Appeal, by judicial pronouncements, it is well settled that the parameters of the said appeal are parameters of a second appeal as available under section 100 of Code of Civil Procedure. As such the appeal could be entertained, only if it found that a substantive question of law arises for consideration. 5. A perusal of the orders would reveal that both the courts have arrived at concurrent findings that the provisions of the constitution specifically the provisions of clause 12(h) and, 13(5) and (8) have not been complied with by the appellants. Perusal of clause 12(b) would reveal that the election officer is Tahiliani 3 fa1224.10.sxw required to be appointed prior to 30 day of the elections. It is further revealed from clause 12(d) that the public notice regarding election is required to be given prior to 30 days before the date of elections. Both the courts have concurrently held that the appellants have failed to produce any material on record to show that the election officer was appointed prior to 30 days from the date of elections. It has also been concurrently held that public notice regarding election was not made given prior to 30 days of the elections. Though the learned appellate court has held that it was necessary to give public notice by advertisement in the newspaper, there is no such requirement in the bye-laws to do so. However the least that the appellants were required to do was to publish it at a conspicuous place in the office of the Trust, which admittedly has not been done. Both the Courts have also concurrently held that the notice issued to the respondent No.1 was not received by him prior to 10 days of the meeting. As such there was violation of clause 13(5). Perusal of clause 13(8) of the constitution would reveal that the signature of a member is required to be taken on a notice and if the member fails to sign it, notice is required to be sent by registered post. No material was placed on record to substantiate that the notice was sent by registered post to respondent No.1. 6. The Courts below have concurrently held that the Trust is required to act as per the constitution. There cannot be dispute with regard to the said proposition. If Trusts are permitted to act contrary to, the provisions of the constitution, the very necessity of having a constitution would loose its efficacy. 7. In so far as the contention of the learned counsel with regard to Judgment of the Apex Court is concerned, no doubt the Apex Court in the said case has held that the Court should deviate from passing order which by passage of time have become unnecessary. As to whether elections have been held as per constitution or not is a matter of hardly contested debate between the parties. The issue as to whether the elections are required to be held as per the Tahiliani 4 fa1224.10.sxw constitution or not is germane even today. In that view of the matter I find that the reliance placed on the judgment of the Apex Court in the case of Hidayatkhan Bismillakhan Pathan ( supra) would not be of much assistance to the case of the applicants at this stage. 8. In so far as the contention of Mr.Godbole regarding prejudice is concerned, that the constitution is required to be followed in a particular manner. In my view no question of prejudice arises. In that view of the matter no substantive question of law arises for consideration. Hence the appeal stands dismissed. 9. Mr.Godbole has further submitted that the provisions of clause 12(d) are not mandatory. Mr..Godbole submits that the courts below ought to have taken into consideration that the provisions of the constitution are directory and not mandatory. For the same reasons I am not inclined to accept the contention of Mr.Godbole that the constitution should not be considered as directive as mandatory. 10. At this stage Mr.Godbole requests for continuation of interim relief for a further period of four weeks. Said application is vehemently opposed by the learned counsel for the respondent. However in view of the concurrent findings of fact which I am of the considered view warrant no interference. Hence application is rejected.