1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 832 OF 2009 Ashok w/o Nagorao Jadhav .. APPELLANT VERSUS Shivajirao s/o Nagorao Jadhav & others .. RESPONDENTS Mr. P.R. Katneshwarkar, Advocate for the appellant. Mr. V.D. Salunke, Advocate for respondent no. 1. Mr. Undre, Advocate for respondent nos. 5 to 7. Mr. A.L. Tikle, Advocate for respondent nos. 2, 3, 4 & 5 ===== CORAM : R. M. BORDE, J. RESERVED ON : 14 th JANUARY, 2010 PRONOUNCED ON : 11 th MARCH, 2010 PER COURT : 1 The issue raised in the appeal is in respect of recording of change in respect of constitution of the Managing Committee, under section 22 of the Bombay Public Trust act, 1950. 2 2 Appellant is the objector who is opposing acceptance of the change report tendered by respondent no. 1 Shivajirao Jadhav. Respondent no. 1 presented an application to the Assistant Charity Commissioner in respect of recording of change under section 22 of the Act. It is the contention of the respondent no. 1 that the change has occurred in the constitution of the Managing Committee in the general body meeting held on 1-12-2004. Alongwith the application, respondent no. 1 presented consent letters of the incoming trustees. Notice in respect of enquiry was directed to be served on the non-applicants. In all seven objections were received for the proposed change. The main objection of the objectors is that there is no written approval of President for convening the meetings of the general body held on 29-10-2004 and 1-12-2004. It is contended by the appellant herein / objector that he was not present in the meeting though he was shown to have been present. Objection is also raised in respect of service of notice of the meetings on the members of the trust. It is also one of the objection by the objectors that the appointment of the Election Officer for conduct of election is not contemplated by the provisions of the constitution and as such, the whole process of election is vitiated. The Assistant Charity Commissioner after recording evidence of the parties, rejected the change 3 report tendered by respondent no.1 herein, in view of his order dt. 2-3-2009. The Assistant Charity Commissioner recorded finding that the constitution of the trust requires written approval of the President for convening the meetings of the general body and the Managing Committee and, in the instant case, there was no such written approval of the President. As such, the meetings of the general body and the managing committee were illegal. The Assistant Charity Commissioner also recorded finding that Ashok Jadhav, appellant herein was not present for the meetings held on 2-9-2004 and 16-10-2004. The Assistant Charity Commissioner also further recorded finding that there is no provision in the constitution to appoint Election Officer for conduct of election. It was therefore held that the change that is reported is illegal and, as such, the same came to be rejected. 3 Respondent no. 1 herein presented an appeal to the Jt. Charity Commissioner raising exception to the order passed by the Assistant Charity Commissioner in respect of rejection of change. The appeal was heard and disposed of by the Jt. Charity Commissioner who confirmed the order passed by the Assistant Charity Commissioner. The Jt. Charity Commissioner, however, recorded finding in the judgment that the contentions raised by the appellant herein that he was absent for the meetings dt. 29-10-2004 and 4 16-10-2004 is not acceptable. it is recorded that the presence of the appellant Ashok Jadhav in the meetings cannot be disputed. The appellate court, however, recorded finding that the meeting held on 16-10-2004 wherein 13 new members were admitted and approval of their induction as member in the meeting dt. 29-12-2004 is illegal. It is also further recorded that the general body meeting held on 1-12-2004 also is illegal and against the provisions of constitution of the trust. The appellate authority as such has drawn an inference that the election of office bearers of the managing committee in the meeting dt. 1-12-2004 cannot be approved. 4 Respondent no. 1 herein who reported the occurrence of change initially before the Assistant Charity Commissioner raised challenge to both the orders passed by the trust authorities by presenting application under section 72 of the Act to the District Court. The appeal came to be heard and disposed of by the District Judge -1, Kandhar who was pleased to allow the same in view of the judgment dt. 27-10-2009. The District Court recorded finding that the meetings of the managing committee held on 29-10-2004 and 1-12-2004 cannot be said to be without any authorisation and, as such, the appellate forum ruled in favor of the legality of the meetings. Resultantly, it was held that the election of the office bearers in the meeting 5 dt. 1-12-2004 is legal and proper. The order passed by the District Judge -1, Kandhar directing acceptance of the change report tendered by respondent no. 1 herein to the Assistant Charity Commissioner is a matter of challenge in the instant second appeal. 5 I have heard arguments advanced by Mr. P.R. Katneshwarkar, learned counsel for the appellant and Mr. V.D. Salunke, learned counsel for respondent no.1. The main objection raised by the appellant in the appeal is based on the provisions of the constitution which authorises the President to convene the meeting of the Managing Committee. It is contended by the appellant that the holding of meetings for electing the office bearers of the committee and for induction of new members of the trust, without there being any written approval from the President shall be deemed to be illegal and, the decisions rendered by the lower authorities in that regard are legal and proper. The District Judge, however, has erred in reversing the findings in respect of legality of the meetings of the managing committee and general body. . Mr. Salunke, learned counsel for the respondent has supported the order passed by the District Court and has contended that the meetings in 6 question were held with due approval of the President. It is contended that the Vice President, in the absence of the President, is authorised to exercise all the powers vested in the President. The meeting dt. 29-10-2004 was presided over by the Vice-President Ashok Jadhav in the absence of the President and it was decided to convene the meeting of the general body on 1-12-2004 and, accordingly, the meeting was held. In these circumstances, exercise of powers by the Vice-President in the absence of the President shall be deemed to dispense with the requirement of securing written approval of the President as the Vice President himself exercised all the powers of the President. 6 I have considered the submissions advanced by respective counsel for the parties. The main question in the appeal is as to whether the meetings of the general body held on 29-10-2004 and 1-12-2004 can be said to be legal and proper and in conformity with the provisions of the constitution of the trust. Clause 6 of the constitution of the trust provides for kinds of membership, clause 8 relates to general body and as per clause 8(9) of the trust the President is authorised to call the meeting of the general body whenever necessary. Clause 8(10) further provides that the President should preside all meetings. Vice-President, General Secretary or any office 7 bearer or member of the Presidium should not preside the meetings unless they are allowed in writing by the President. Composition of the Presidium is provided under clause 9 of the Constitution. As per clause 9(3) the General Secretary of the Presidium is authorised to call the meetings with the previous written approval from the President or the President himself should call the meetings either or the General body of the Presidium. The powers of the President and Vice-President are enlisted in clause 10. Clause 10 provides thus : a) All the bodies of the Mandal shall be directly responsible and under the control of the President. He shall inspect and supervise every department and each item of the Mandal. The President shall contribute his energy and intelligence for the development of the institution of the Mandal. He shall preside all the meetings. All administrative and financial power of the Mandal shall be vested to him only. b) In the absence, illness or leave of the President Vice- President shall act as on acting President. . Sub-clauses (C)(a) and (b) provide for powers of the General Secretary in respect of convening meeting. Those read thus : a) To prepare the agenda and convene the meetings of the General body and Presidium as and when necessary with written sanction from the President. b) The General Secretary after getting written approval to 8 firm the president shall call meetings. . Clause 16(A) of the constitution provides for issuance of notice of the meeting which reads thus : 16(A) Notice of Meetings : . The General Secretary after getting the approval from the President has to issue a notice in writing on notice book before seven days (for Presidium) and Ten days for General body. . Clause 13 of the constitution provides for tenure of the President and the same is prescribed as 5 years. 7 Relying upon the aforesaid clauses provided in the constitution, it is urged by learned counsel for the appellant that in the instant matter, admittedly, there is no written approval from the President for convening and holding the meetings of the general body and, in view of said contravention, the meetings of the General Body held for electing the managing committee (Presidium) as well as for induction of new members shall have to be held as illegal. The District Court recorded finding that as the notice dt. 24-8-2004 was signed by the then President Smt. Saroj Jadhav the same shall have to be termed as approval of the President to call the meeting of the 9 managing committee on 2-9-2004. It appears that the notice was under the signature of General Secretary and the President had merely acknowledged it. The District Court considering the issue has held that on receipt of the notice of meeting, as the President has not raised any objection, it shall be treated that the meeting was held with her permission. In the meeting dt. 29-10-2004, it was decided to call the meeting of the general body on 1-12-2004 and, in view of the no objection exh. 22 and 23 presented by the President before the Assistant Charity Commissioner the learned District Judge proceeded to record finding that the President does not appear to have any objection for holding meetings and, as such, the meetings were held to be legal and proper. The consent by the acting President who presided over in the meeting dt. 29-10-2004 is interpreted as valid for convening the meeting of the general body on 1-12-2004. 8 It appears to be the contention of the respondent that the meeting of the managing committee dt. 2-9-2004 was held with the approval of the President Smt. Saroj Jadhdav and, in that meeting, resolution no. 5 was passed by the committee and it was decided to call the next meeting on 16-10-2004 and the notice for the same was directed to be issued on 7-10-2004. In view of the notice issued on 7-10-2004, the meeting of the 10 managing committee was held on 16-10-2004. In the said meeting resolution was passed to convene the meeting of the general body on 20-10-2004. The meeting dt. 2-9-2004 was presided over by the Vice President Ashok Jadhav as the President was absent and, therefore, the resolution passed in the meeting dt. 2-9-2004 to convene the meeting on 16-10-2004 had a stamp of approval of the acting President who is empowered to exercise the power of the President in her absence. Further meeting dt. 29-10-2004 was also held under the Presidency of the acting President Ashok Jadhav and in the said meeting, it was decided to call a meeting of the managing committee on 1-12-2004 for holding election of the President. In the meeting dt. 29-10-2004, approval was accorded for addition of members. It is contended that both the meetings of the general body i.e. meetings dt. 29-10-2004 and 1-12-2004 which were convened as per the approval of the Vice President who was exercising the powers of President, shall have to be considered as legal and proper. 9 I have given thoughtful consideration to the arguments advanced at bar as well as I have perused the reasons recorded by the District Court. However, considering the specific provisions contained in the constitution, I cannot persuade myself to accept the preposition. It is to be noted at this 11 stage that the then president of the Trust Smt. Saroj Jadhav has presented an objection in writing to the Assistant Charity Commissioner opposing the acceptance of change report. It is specifically contended by the then President Smt. Saroj Jadhav that the meetings dt. 16-10-2004 and 29-10-2004 were not convened with he approval. She has also further contended that she did not accord approval for the meeting of the managing committee dt. 1-12-2004 and as such, all the aforesaid meetings are illegal and opposed to the provisions of the constitution. Again referring back to the provisions of the constitution, it is to be noted that as per clause 8 (9) and (10) of the constitution, it is the President who is authorised to call the meetings of the general body and it is also specifically provided that the Vice President, General Secretary or any office bearer of the Presidium should not preside the meetings unless they are allowed in writing by the President. In the instant case, it is not the case of either of the parties that the President has permitted any of the member of the Presidium to preside over the meeting. Clause 9(3) of the constitution also specifically provides that the General Secretary of the Presidium is authorised to call the meeting with previous written approval or permission of the President. Clause 10(b) which authorises the Vice President to act in the absence, illness or leave of the President, cannot be interpreted to mean that the requirement in respect of 12 seeking written approval of the President for convening the meeting of the general body is in any manner dispensed with. Clause 9(b) shall have to be read harmoniously with the other provisions contained in the constitution which provides for mandatory requirement of seeking written approval of the president before convening the general body meeting. In the instant matter, as admittedly, there was no written approval from the President in respect of general body meeting dt. 29-10-2004 and 1-12-2004, as such, the meetings of the general body held on the aforesaid dates and the business transacted therein shall have to be declared as illegal. 10. Even though I have recorded finding holding that the general body meetings dt. 29-10-2004 and 1-12-2004 cannot be termed as legal and proper and in conformity with the provisions of the constitution of the trust, still in view of certain changes and in view of the lapse of period, I am not persuaded to cause interference in the matter. It is evident on perusal of the provisions of the constitution and more particularly clause 13 which provides for tenure of the Presidium requires that the election of the Presidium shall have to take place after every 5 years and the same period will be the tenure of the Presidium. In the instant matter, the elections to the Presidium are stated to have been held in the general body meeting dt. 1-12-2004. 13 The period of Presidium (managing committee) has come to an end on 30-11-2009. In view of completion of the tenure of the Presidium and lapse of the period, no fruitful purpose will be served in passing any order or issuing any declaration in respect of validity of elections. In view of lapse of period of five years, the issue raised has become stale and no effective order is permissible. It is also reported that there is another change report presented to the Assistant Charity Commissioner on 30-3-2009 and the same is registered as enquiry no. 765/2009. It would be appropriate in the circumstances to permit the Assistant Charity Commissioner to deal with the enquiry and determine the validity of the change. The Assistant Charity Commissioner while determining the issue raised before him after considering the contentions that may be raised by all the parties to the litigation pass appropriate order. In this context, reference can be made to a judgment reported in 1980 Mh.L.J. 372. In paragraph no. 11 of the judgment which has been observed by the court as below : . 11. With all these findings in favour of the appellants, I am constrained to nevertheless dismiss the appeal in view of the subsequent developments. Court cannot ignore relevant subsequent developments occurring during the pendency of appeal andmust, in the ends of justice, mould its order in the light thereof. In this context, I may refer to Civil Application No. 2498 of 1979 by respondent no. 1. Factual averments 14 therein are not contested. Undisputed postiion, therefore, is that the term of the managing committee elected in February 1974 has already expired in February 1979 and a new managing committee has also been elected in March 1979. This new committee has also already taken charge. Mr. Nashikkar, the learned Advocate for respondent no. 1 trust, makes a statement before this Court that the old managing committee elected in February 1974 had neither sold nor purchased any immovable property nor had it taken any such major policy decision so as to adversely affect the interest of the public trust. The said managing committee had only carried on routine administration. M. Chandurkar, the learned Advocate for the appellants, has not drawn my attention to any such act by the erstwhile managing committee which can be said to be against the interests of the trust. Moreover, there are many in built provisions in the Act itself and the Rules thereunder operating as safety valve for protection of public trusts. Control of the Charity Commissioner is also there all throughout. In these circumstances, remand to inquiry into the theoretical legality or otherwise of the 1974 elections already superseded by the 1979 elections become academic. 11 In view of subsequent developments of which reference is made above, I am not inclined to cause any interference at this stage. It would be open for the parties to the litigation to raise their contentions before the competent authority dealing with the issue in respect of occurrence of change for the subsequent period. Even otherwise also, if any direction is found necessary in respect of any of the matters concerning the administration of the trust, it would be open for the parties to approach the competent authority, provided under the provisions of the Bombay Public 15 Trusts Act and seek appropriate directions. In the facts and circumstances noted above, no interference is required to be caused in the instant appeal. Appeal therefore stands dismissed. ( R. M. BORDE, J.) dyb/office/sa832.09.odt