dgm gm gm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE APPELLATE APPELLATE SIDE CIVIL JURISDICTION SIDE CIVIL JURISDICTION SIDE CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO.6521 OF 2008 PETITION NO.6521 OF 2008 PETITION NO.6521 OF 2008 1. Zubair Rashid Shaikh Age about - 52, occupation: Profession, Residing at: B-109, Oxford Village, Wanori, Pune 411 040. 2. Latif Bakshu Magdum Age about -58, years occupation- Agriculturalist, Residing at: Hastipuram Complex, Flat No.25, First Floor, Bibwewadi, Pune 411037. Petitioners Vs. 1. Shri Sayyed Baker Hussaini Abdul Razzak Inamdar @ Shahid Age: 49 years, occupation Business, R/o.Flat No.6, Second Floor, 995, Nana Peth, Padamji Park, Pune 411 001. 2. Mr.Anwar Baig Kader Baig, Age 55 years, occupation-business, Residing at 286, Ganj Peth,Pune. 3. Mrs.Hasina Mohd.Iqbal Shaikh, Age - Adult, occupation: Retired Teacher, R/at 981-C, Bhawani Peth, A.D.Camp Chowk, Pune. 4. Shri S.A.Wahab, Age-Adult, occupation-business, R/at 981-C Bhawani Peth,A.D.Camp Chowk, Pune. 5. Shri S.M.Iqbal, Age-Adult, Occupation: Service, R/at 981-C, Bhawani Peth, A.D.Camp Chowk, Pune. 6. The Joint Charity Commissioner, Pune Region, Pune, Dhole Patil Road, Pune-1. 7. Haji Gulam Mohammed Azam Education Trust, having its office at :2: 2390, K.B.Hidayatullah Road, New Modikhana, Azam Campus Camp, Pune 411 001, 8. The Maharashtra Cosmopolitan Education Society, having its office at 2390, K.B.Hidayatullah Road, New Modikhana, Azam Campus Camp, Pune 411 001. 9. State of Maharashtra, Government Pleader Office, High Court, Mumbai. Respondents Mr.Y.S.Jahagirdar, Sr.Counsel with Mr.Girish S. Kulkarni i/b. Mr.Sandeep Waghmare for the petitioners. Mr.R.S.Apte, Sr.Counsel with Mr.A.A.Garge for respondents 1 and 2. Mr.Rohan Dilip Pote for respondent no.3. Mr.N.V.Walavalkar, Sr.Counsel with Mr.A.R.Utpat and Ms.Smita D. Pote for respondent no.4. Mr.P.K.Dhakephalkar, Sr.Counsel with Mr.N.P.Shimpi i/b. Mr.Sanjay Kshirsagar for respondent no.5. Mr.V.S.Masurkar, Government Pleader for respondents 6 and 9. Mr.Y.R.Naik, Sr.Counsel with Mr.Prashant Naik for respondents 7 and 8. ALONG ALONG ALONG WITH WITH WITH WRIT WRIT WRIT PETITION NO.2196 OF 2009 PETITION NO.2196 OF 2009 PETITION NO.2196 OF 2009 1. Haji Gulam Mohammed Azam Education Trust, having its office at 2390, K.B.Hidayatullah Road, New Modikhana, Azam Campus Camp, Pune 411 001, through its Chairman Mr.M.A.Peerbhoy 2. The Maharashtra Cosmopolitan Education Society, having its office at 2390, K.B.Hidayatullah Road, :3: New Modikhana, Azam Campus Camp, Pune 411 001, through its President Mr.P.A.Inamdar Petitioners Vs. 1. Shri Sayyed Baker Hussaini Abdul Razzak Inamdar @ Shahid Age: 49 years, occupation Business, R/o.Flat No.6, Second Floor, 995, Nana Peth, Padamji Park, Pune 411 001. 2. Mr.Anwar Baig Kader Baig, Age 55 years, occupation-business, Residing at 286, Ganj Peth,Pune. 3. Mrs.Hasina Mohd.Iqbal Shaikh, Age - Adult, occupation: Retired Teacher, R/at 981-C, Bhawani Peth, A.D.Camp Chowk, Pune. 4. Shri S.A.Wahab, Age-Adult, occupation-business, R/at 981-C Bhawani Peth,A.D.Camp Chowk, Pune. 5. Shri S.M.Iqbal, Age-Adult, Occupation: Service, R/at 981-C, Bhawani Peth, A.D.Camp Chowk, Pune. 6. The Joint Charity Commissioner, Pune Region, Pune, Dhole Patil Road, Pune-1. 7. Zubair Rashid Shaikh, Age about - 52, occupation: Profession, Residing at: B-109, Oxford Village, Wanori, Pune 411 040. 8. Latif Bakshu Magdum Age about -58, years occupation- Agriculturalist, Residing at: Hastipuram Complex, Flat No.25, First Floor, Bibwewadi, Pune 411037. 9. State of Maharashtra, Government Pleader Office, High Court, Mumbai. Respondents :4: Mr.Y.R.Naik, Sr.Counsel with Mr.Prashant Naik for the petitioners. Mr.R.S.Apte, Sr.Counsel with Mr.A.A.Garge for respondents 1 and 2. Mr.Rohan Dilip Pote for respondent no.3. Mr.N.V.Walavalkar, Sr.Counsel with Mr.A.R.Utpat and Ms.Smita D. Pote for respondent no.4. Mr.P.K.Dhakephalkar, Sr.Counsel with Mr.N.P.Shimpi i/b. Mr.Sanjay Kshirsagar for respondent no.5. Mr.V.S.Masurkar, Government Pleader for respondents 6 and 9. Mr.Y.S. Jahagirdar,Sr.Counsel with Mr.Girish Kulkarni i/b.Mr.Sandeep Waghmare for respondents 7 and 8. CORAM CORAM CORAM : : : ANOOP V.MOHTA,J ANOOP V.MOHTA,J ANOOP V.MOHTA,J. DATED DATED DATED : 18th March, 2009. : 18th March, 2009. : 18th March, 2009. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: Heard finally by consent of the parties. Since the parties and the issue involved in both these petitions are common, therefore, by this common judgment, the same are being disposed of. 2. The facts as alleged are:- In or about 1948, respondent no.8(The Maharashtra Cosmopolitan Education Society), (The Trust) registered under the Societies Registration Act, 1860. In 1953, Respondent no.8 also registered under Bombay Public Trusts Act, 1950 (for short, "BPT Act"). Some time in 1967, the :5: Constitution of the Trust was amended. During 1967 to 1984, six elections held under 1967 amended Constitution. 3. In 1972, respondent no.7 (Haji Gulam Mohammed Azam Education Trust) (The other Trust) registered under BPT Act, 1950 with its Constitution. In 1986, an amendment to 1967 Constitution of the Trust carried out by prescribing payment of Annual Subscription. On 02.06.1986 Change Report No.1018 of 1986 filed before the Deputy Charity Commissioner, Pune reporting the change in respect of the said Amendments. 4. On 15.03.1987, an election of the Trust held as per the Constitution as amended in 1986. On 12.05.1987, Change Report No.490 of 1987 of above elections filed before the Deputy Charity Commissioner. 5. On 31.03.1990, (Change Report Nos.1018 of 1986 and 490 of 1987) Both the change Reports under Section 22 of the BPT Act rejected by the Deputy Charity Commissioner, Pune on the ground that 1967 amendment to the Constitution of the Trust was not on the record of Charity Commissioner. Suo-motu inquiry under Section 41-B of BPT Act, 1950 ordered. :6: 6. On 19.04.1990, in Application No.677/1989, the Deputy Charity Commissioner, Pune, directed the then existing trustees to administer and manage the trust till new trustees were appointed. Against this order no appeal was filed. This arrangement continued from 19.04.1990 to 26.09.1999 i.e. upto fresh elections of the Trust. 7. On 31.10.1990, two Appeals u/s. 70 of the BPT Act against 31/03/1990 order dismissed by Jt. Charity Commissioner. The order of rejection of two changed reports was maintained. 8. On 29.10.1991, two Applications Nos.6 of 1991 and 5 of 1992 filed against the trustees of the Trust before Joint Charity Commissioner under Section 47 of the BPT Act for the removal and to appoint the Applicants therein as Trustees or Administrator on the Trust. 9. On 06.02.1993, in the Suo Moto enquiry No.797/1990 held under Section 41-B of BPT Act pursuant to order dated 31.03.1990, the Deputy Charity Commissioner Pune sent recommendations to the Joint Charity Commissioner. These recommendations were :7: considered by the Charity Commissioner while passing order dated 11.12.1995. 10. On 05.08.1993, two Appeals against order dated 31.10.1990 under Section 72 of the BPT Act were dismissed by the District Court. 11. On 11.12.1995, the Charity Commissioner, Mumbai decided Application Nos.6/1991 and 5/1992 and passed the following order : O R D E R 1. The request of the applicants of both the applications to appoint new trustees to this Trust under sec. 47 of the B.P.T. Act, 1950 is hereby rejected. 2. However, I am giving administrative directions u/s. 41A of the B.P.T.Act, 1950 to the Opponents as follows: (a) The Opponents are hereby directed to hold the elections of the new Trustees of this Trust, viz. "Maharashtra Cosmopolitan Education Society", P.T.R. No.F-121(Pune) as per the strict provisions of the existing Constitution record by calling General Body meeting of all the existing members on or before 31.3.1996. (b) They are directed to allow all the old members of this Trust who are shown as members of this Trust as on 15.3.1987 as well as they should allow new members, if any, whose names are enrolled as Members of this Trust upto 5-8-1995 only. (c) They should publish names of all above persons in the office of the Trust one month prior to the date of election. :8: (d) The Opponents are hereby directed not to enroll any new Members till the date of elections. (e) Opponents should not take any major policy decision regarding this Trust till the elections are over. (f) The directions are hereby given to the Joint elections. For that purpose the Opponents are hereby; directed that they should intimate to the Joint Charity Commissioner, Pune the date of the elections well in advance. 3. A copy of this order be sent to the Joint Charity commissioner, Pune for information along with the Record and Proceedings immediately. 4. With these directions the Applications are disposed off with no order as to costs." 12. Order dated 11.12.1995 challenged in following proceedings: (i) On 12.01.1996, First Writ Petition No.782/1996 by Applicants in Application No.6/1991 admitted and it is pending. No Stay granted. On 16.02.1996 LPA No.15/1996 against refusal of above stay also dismissed. The order of 11.12.1995 was not challenged by the petitioners of Writ Petition No.2196/2009 i.e. Haji Gulam Mohammed Azam Education Trust (the other Trust) and The Maharashtra Cosmopolitan Education Society (The Trust). :9: (ii) In Second Writ Petition No.1590/1996 filed by one Abdul Maroof Khan, against Trustees including Respondent No.1, a consent minutes of order accepting order dated 11.12.1995 and directions to hold elections was passed. 13. The order dated 19th March 1996 in W.P. No.1590/96 reads as follows: "ORDER W.P.NO.1590/96 Coram: A.P.Shah,J. 19th March 1996. MINUTES OF ORDER 1. Rule to be heard forthwith Respondents waive service. By consent the following order is passed. 2. The election programme dated 17.2.1996 of Shri J.F.Sherkar, Advocate at page 243 dated 23.2.1996 of Shri A.K.Memon at page No.244 dated 21-2-1996 and Raju H. Memon at page 246 are hereby set aside. 3. The petitioner and Respondents No. 1 to 15 do accept the order of the Charity Commissioner dated 11th December 1995 including the directions to hold elections to the Respondent No.1 subject to such elections being held by a Returning Officer appointed by the Joint Charity Commissioner, Pune Region Pune. To that extent, the above order dated 11th December 1995 stands modified. 4. The said Returning Officer so appointed shall publish provisional voters’ list and invite objection to the same. After considering the objections if any the final votes list shall be published. Thereafter he will complete the rest of the election programme within six months from this day. 5. The Rule is made absolute accordingly with no order as to costs." :10: 14. On 31.10.1996 third Writ Petition No.4375/1996 by one Abdul Latif Karim dismissed as infructuous. 15. 07.07.1997, two First Appeals dismissed by this Court by a common order. The operative part of Order dated 7th July, 1997 in First Appeal No.565/1997 reads as follows: ". Having heard the learned advocate for the appellants, I find no substance in the present Appeals. The Deputy Charity Commissioner, Joint Charity Commissioner and District Judge have rightly found that the change in the Constitution as done by the Appellant has illegal. Consequently, the change reports are rightly dismissed. Similarly, the appellants have no locus standi to file Appeals. . Both the Appeals to stand dismissed." 16. On 24.02.1998, Civil Application No.1348/1997 in disposed off Writ Petition No.1590/1996 for recall of order dated 19.03.1996 rejected. The elections of the Trust held on 26.09.1999 in which respondent nos. 1, 3 and 4 and 5 participated. 17. On 5.12.1999, a regular general body meeting of the Trust was held and they resolved to pass an amendment to the Constitution of the Trust again not as per order dated 11.12.1995, with regard to old voters/members upto 5.8.1995 as directed and inspite of :11: order dated 07.07.1997. Respondent no.1 had attended the same. 18. On 05.12.1999, a Joint Meeting of respondent no.7 (the other Trust), Trustees and General Body Members of the Trust held to prepare and submit panel of 14 names as per clause 10(c) of (respondent no.7) (the other Trust) Constitution to the Jt.Charity Commissioner. Respondents 1, 2 and 5 attended the said joint meeting. 19. On 29.12.1999, a Change Report of Election dated 26.09.1999 of the Trust filed and the same is pending. 20. On 25.12.1999, a Change Report in respect of the amendment of Constitution of the Trust submitted and the same is also pending. 21. On 31.03.2000, the Joint Charity Commissioner accepted the change report and approved the names of 14 Trustees of the other Trust (Haji Gulam Mohd. Trust) for 5 years. In this panel, respondents 1 and 2 appointed as trustees and has been continuing till today. 22. On 12.12.2004, an Unanimous Elections for 2004-2009 of the Trusts held again not as per old list :12: upto 5.8.1995. Respondent no.5 participated in the elections. A Change report submitted and same is pending. 23. On 20.01.2005, after completion of tenure of 5 years, a Joint General Body Meeting of the other Trust and the Trust was held and a panel of 14 names submitted to the Joint Charity Commissioner for appointment of new Trustees again. 24. The order in First Appeal Nos.624/2006 and 625/2006 dated 29th March, 2006 reads thus: " ORDER F.A. NO.624/2006 & F.A. NO.625/2006 Mr.Neel Helekar i/b.Ms.Anjali Dharap for the Appellants. CORAM; A.S.OKA, J. DATED:March 29, 2006. P.C.: 3. These Appeals have been preferred under Section 47(5) of the Bombay Public Trusts Act, 1950. The Appellants in these Appeals made separate applications in the year 1991 and 1992 praying for appointment of trustees of the Respondent No.1 which is a public trust duly registered under the said Act of 1950. By a common order dated 11th December 1995 passed in both the applications, the learned Charity Commissioner rejected the Applications. By the said order, an administrative direction was issued under Section 41-A of the said Act of 1950 directing the opponents in the :13: Applications to hold election of the new trustees of the Respondent No.1-trust by calling general body meeting of all existing members on or before 31st March 1996. Perusal of the record of the Appeals shows that the direction given under Section 41-A of the said Act of 1950 is not stayed till today by this Court. 4. After having heard the learned Advocate for the Appellants in both the Appeals, I find that there is no merit in these Appeals. In fact, by sheer lapse of time, Appeals cannot be entertained. Appeals are accordingly dismissed with no order as to costs." 25. On 24.03.2008, in the proposal for appointment of Trustees of the other Trust, respondent no.6 directed the trustees to hold fresh joint meeting of both the Trusts (respondent nos. 7 and 8) for preparation of Panel of 14 persons with notice to all members. This case is Misc.Application No.1 of 2008. 26. On 28.03.2008, a notice issued by the petitioners on behalf of Trust and Society for holding above joint meeting on 13.04.2008. 27. On 29.03.2008 a rival Notice published in newspaper by respondent nos. 1 and 2 as Trustees of respondent no.7 for holding above Joint Meeting on 12.04.2008 at another place. 28. Application No.7 of 2008 filed by respondent nos. :14: 7, 8 and some of its office bearers against respondent nos. 1 and 2 to prevent holding of separate meeting by them. Application No.8 of 2008 filed by respondent nos. 1 and 2 against respondent nos. 3, 4, 5, 7 and 8 under section 41A of BPT Act seeking directions against both the Trusts (respondent nos. 7 and 8) for calling over 1400 members instead of 587 members to participate in the General Body Meeting, on 03.04.2008 and 13.04.2008 respectively. Application No.6 of 2008 filed by the other Trust (respondent no.7) and one office bearer for appointing a observer for the Joint Meeting. 29. The operative part of impugned order dated 27.08.2008 passed by Joint Charity Commissioner, Pune in Application Nos. 6, 7 and 8 of 2008 reads as under: " ORDER ORDER ORDER (1) All applications stand disposed of. (2-A) The opponents, the persons, who are now managing the Trust, are hereby directed to prepare a list of original members within a month, whose membership on a particular date was upheld by Deputy Charity Commissioner by rejecting the Change Report. (2-B) To prepare the list of expelled members whose expulsion occurred because of various amendments. (2-C) To prepare the list of added, enrolled :15: members by the present managing persons on the basis of various amendments. (3) The Opponents, the persons, who are now managing the Trust are hereby directed to publish the lists which are prepared as per the directions under 2-A and 2-B only in the local newspaper, which is widely circulated as well as on the notice Board of the Trust and of School and Colleges of the Trust and on the Notice Board of this office inviting objections. (4) Within a month if objections are not received, then they must be prepare a final list of such members excluding dead persons and then to issue to each of such members a notice in person calling upon to attend General Body meeting for nominating persons. (5) Incase the Respondents fail to prepare the list within a month, then the Applicants from Application No.8/2008 may move this Authority for appointment of Ad-hoc Committee for managing the Trust. (6) In case of publication and finalization of list, the election and/or nomination has to be held within 3 months therefrom under the observation of person who will be appointed by this Authority on being moved by the party. (7) Copy of the application be kept in Application No.6/2008 and 7/2008." 30. Admittedly, more than two last elections of the Trust were held based upon the voters list as relied in the year 1995 and not as directed by earlier order under Section 41-A of the BPT Act by calling the old members as well as, the new members who were induced upto 1995, as observed in the impugned order. 31. In the impugned order dated 27.08.2008, the :16: learned Authority has considered the basic orders passed against both the Trusts and the Trustees directing them to hold election based upon the original list of the Trust or at least to prepare the list of all the members whose expulsions occurred because of various amendments. The impugned order, in my view, in no way adjudicated any issue but only directed to comply with the existing orders passed by the Authorities from time to time. Such order falls within the ambit of power and jurisdiction of Section 41-A of the BPT Act as it is in the interest of proper administration of the Trust. Such order cannot be said to be beyond the scope and power of Section 41-A of the BPT Act. This order is not initiation or interference with any election process already declared or announced. The order insist that the election should be held hereafter, based upon this direction. Such order/direction to the Trust and the Trustees, in the facts and circumstances referred above, cannot be said to be perverse and beyond the record. 32. Admittedly, the Trust i.e. petitioners 1 and 2 in Writ Petition No.2196/2009 basically petitioner n.2 never challenged the earlier order passed under Section 41-A of the BPT Act. On the contrary, :17: admittedly, the Trust along with other members consented to order dated 11.12.1995 whereby a direction was given to hold fresh election of the Trust on or before 31.03.1996 as per the original Constitution with further observation to allow old members as on 15.03.1987 and new members enrolled upto 5.08.1995 to vote and participate at the election. 33. Admittedly, the said order except modification as recorded on 19.03.1996 in Writ Petition No.1590/1996 remained intact so far as the direction to consider the old members/voters. 34. Merely because the elections were held thereafter admittedly without all members participation as directed, that, in my view, should not be the reason not to grant an opportunity to all the old members to participate in the election process or proceedings of the Trust. 35. Admittedly, the basic order of rejecting the change report, further confirmed by this Court on 7th July, 1997 in First Appeal No.565/1997. This is also important facet which just cannot be overlooked to test the reasoning given in the impugned order directing the Trust and the Trustees to hold elections :18: as directed. It is very clear that there is no adjudication or any decision taken by the Authorities but it is only directed to hold the election by giving opportunity to all the members. 36. The change reports which are pending the election of the year 1999 and also of the year 2004 is also in my view, should not be the reason not to hold elections as directed. The Elections were held, rightly or wrongly, the body, got elected, and the change reports are pending. It will go on like this for years to come. The submission that unless those change reports are decided finally and as elections were already held, there should be no change in the membership list and the further election should be held as per their list, without amendment, is unacceptable. The pending litigation of this nature should not deprive the right of old or existing members to participate in the election of the Trust, if they are otherwise eligible to participate and/or not disqualified for some other reason to participate. 37. The further submission that some of the members actually participated, as the order dated 19.03.1996 was passed by consent of the parties, still, in my view, that should not restrict and/or deprive the :19: other members who were not party to that proceedings and specially those members who were members on the list but removed from the membership pursuant to the amendment which ultimately rejected in view of the rejection of the change reports and the said orders are confirmed even by the High Court. When we talk of administration of any Trust, there is no reason that all members who are on the list of the members of the Trust on or before 05.08.1995 should not be given opportunity to participate in every aspect, including administration and management of the Trust which definitely including General Body meetings and elections. 38. Admittedly, by order dated 29.03.2006 in First Appeal Nos.624/2006 and 625/2006, this Court has again observed and referred to the earlier administrative directions issued for calling the General Body meeting of all the existing members on or before 31.03.1996. Admittedly, there was no stay to the order dated 11.12.1995. In view of this, the administrative order dated 11.12.1995 read with further confirmation of the order of rejection of the Change reports and as admittedly, as old members were never allowed to participate in such proceedings till this date, I see there is no reason that they should not be allowed to :20: participate in ensuing election of the society. Therefore, the direction given in the present case, at the initial stage of the ensuing election, I see is well within the frame work of the record and the law. 39. It is very clear that the subsequent elections after 11.12.1995 based upon the list prepared without considering the old members as recorded above. To allow all the members of the Trusts to participate in the election or administration of the Trusts in no way cause prejudice to the Trusts. In this background, when admittedly the Trusts itself never challenged the basic earlier order of December 1995 whereby similar directions have been issued with regard to the old members and, therefore, challenge now in the present petition is totally unacceptable. The Trust in this background, as referred above, cannot be said to be aggrieved party or person affected to challenge the impugned order direction to them to consider or to allow all the members to participate in such ensuing election proceedings. There is no justification whatsoever is given why not to allow old existing members of the Trust to participate in such election proceedings. The submission based upon the consent order and the elections already held and as the change reports are pending, in any way, not sufficient reason :21: not to grant opportunity to all the members. 40. The pendency of Writ Petition No.782/1996 also, in my view, cannot be the reason not to comply with the direction as given. All the members or interested persons should not be suffered because of pendency of such litigations or change reports as though directed from time to