1 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 734 OF 2011 Eknath Keshav Teli ... Petitioner Versus Ajit Pandurang Gogte and Ors. ... Respondents WITH WRIT PETITION NO. 735 OF 2011 Shailesh Ramesh Mahadik and Ors. ... Petitioner Versus Ajit Pandurang Gogte and Ors. ... Respondents Mr. Virag Tulzapurkar, Sr. Advocate with Mr. S.A. Sawant i/by M/s. D.H. Law Associates for the petitioner. Mr. R.S. Apte, Sr. Counsel for respondent no. 1. Mr. P.P. Chavan i/by Mr. Prabhakar Jadhav for respondent no. 5. Mr. S.N. Bhosale, A.G.P. for respondent nos. 6 to 8. CORAM : S.C. DHARMADHIKARI,J. DATED : JUNE 27, 2011 P.C. 1. The first writ petition is directed against the order passed on 20th September, 2010 and 12th January, 2011, copies of which are at Exh. "F" 2 and "I" to this writ petition. By order dated 20th September, 2010 the Assistant Charity Commissioner, Sindhudurga rejected the change report but the petitioners before me are aggrieved by the order to the extent it directs the Inspector in the office of Assistant Charity Commissioner, Sindhudurga to hold re-elections of the Managing Committee/Government Council of the trust by excluding 498 members. The other order by which the petitioners are aggrieved is dated 12th January, 2011 where the Joint Charity Commissioner dismissed Appeal No. 24 of 2010 which was filed by the Trust and one Prasad Dhananjay Parkar. 2. It is not necessary to go into any wider questions and particularly about the legality and validity of the change which was reported by the reporting trustee, because I am informed by the learned senior counsel for both the sides that appropriate proceedings have been initiated against that part of the order namely rejecting the change report and these proceedings are pending. The petition is filed by 15 of the 498 members who are directed to be excluded from the election process. It is their grievance that the learned Assistant Charity Commissioner under the garb of deciding the legality and validity of the change report has directed exclusion of their names but while doing so 3 he has not heard them or given them any opportunity to place their version before him. Mr. Tulzapurkar learned senior counsel appearing on behalf of the petitioners has invited my attention to the Assistant Charity Commissioner’s order dated 20th September, 2010 and contended that the learned Assistant Charity Commissioner firstly feels that the notice to the newly inducted 498 members is not necessary. Then, he proceeded to hold that the admission of some of the persons who had appeared during the proceedings go to show that 498 members did not pay their membership fees at the time of filing of the application for getting membership which was against the constitution of trust. My attention is invited to the observations and finding in para 16 of the order and so also paragraphs 19 to 21. The complaint of Mr. Tulzapurkar is that if the Assistant Charity Commissioner was inclined to render a finding that 498 persons cannot participate in the election process, then, it was incumbent upon him to have directed that either they be made parties to the proceedings or they be given notice so as to give them opportunity to place their version before the Assistant Charity Commissioner. Neither course having been adopted, the order is contrary to the principles of natural justice. 4 3. The second submission of Mr. Tulzapurkar is that while adjudicating upon the legality and validity of the change, the Assistant Charity Commissioner could not have rendered any findings on the enrollment of 498 persons as members. That was not the subject matter of the proceedings. The change report is on the basis that on 27th October, 2007 the election took place under the supervision of Inspector of Assistant Charity Commissioner. One Mr. Ajit Gogate and Mr. P.J. Ogle appeared before the Assistant Charity Commissioner and objected the application by filing a say that in Enquiry Application No. 250 of 2006 an order has been passed on 7.5.2007 by which the Inspector came to be appointed to hold election of the Managing Committee/Governing Council of the Trust. Thereafter, the then Managing Committee/Governing Council of the trust got registered 498 members by fabricating the documents on 01.12.2006 and 24.12.2006. These members have no right of voting. Similar objections were raised by the other persons particularly Rajaram Kadam and Manohar Padve. Mr. Tulzapurkar submits that there was no question of these aspects being decided in the change report because the specific contention of the applicant Prasad Dhananjay Parkar who reported the change was that the legality of the enrollment was not the issue in the present 5 proceedings. He even submitted before the Assistant Charity Commissioner not to render any finding in the absence of these 498 members. Hence, all the more, the impugned orders are unsustainable. Mr. Tulzapurkar has invited my attention to the order passed by this court in a Writ Petition being Writ Petition No. 7967 of 2007 decided on 20.10.2007. This writ petition was filed by the first respondent to this writ petition. According to the learned senior counsel, this court did not in any manner hold that the issue can be decided in the change report proceedings. All that this court observed is that as and when the change report is filed, all the contentions raised in this writ petition can be kept open to be raised by the petitioner Ajit Gogate in the change report proceedings. Therefore, utilizing this order or any observation therein, the learned Assistant Charity Commissioner could not have directed exclusion of 498 members. Looked at from any angle, the impugned order is illegal and deserves to be set aside. 4. Mr. Apte, learned senior counsel appearing on behalf of respondent No. 1 firstly contended that petitioners have alternative and efficacious remedy by way of appeal against the decision of Jt. Charity Commissioner. He submits that respondent no. 5 has filed an appeal 6 against the order of Jt. Charity Commissioner and that is pending. In such circumstances, even if the present writ petitioners are not parties to the original proceedings, that they with the leave of the court file their appeal. His next contention was that the Assistant Charity Commissioner was well within his powers to have gone into the issue of enrollment of these persons because once inspector was appointed and he was directed to conduct the elections, then, they have to be so held in terms of the report and the finding by this inspector. If the inspector had forwarded a report and pointed out that the members have not been enrolled in accordance with the constitution of the trust, then, due note can be taken of this illegality and wrongful act. It is then not necessary to hear the affected parties because the illegality is apparent. For all these reasons, this is not a fit case for interference by this court in writ jurisdiction and the petition be dismissed. 5. With the assistance of the learned senior counsel appearing for the contesting parties, I have perused the writ petition and annexures thereto and both the impugned orders. To my mind it does not require any detail scrutiny and probe to ascertain whether any notice was given to the affected parties before the impugned order was passed by the Assistant Charity Commissioner. Perusal of his order itself would indicate that 7 the Assistant Charity Commissioner has not thought it fit to give them any notice before holding that their enrollment is not in accordance with the Constitution of the Trust. To my mind, the Assistant Charity Commissioner was in complete error in going into these aspects and deciding them in the absence of the affected parties. Assuming that the report of the Inspector was forwarded to him but once the findings therein were found to be adverse to the interest of the persons who have been enrolled as members, then, minimal requirement is to give an opportunity to these persons and particularly because their names have been included in the schedule A to the notice by which the elections were declared and were proposed to be held on 27th October, 2007. In such circumstances, on the short ground that 498 persons whose names were directed to be excluded were neither parties nor heard before the impugned order was passed and therefore, order to that extent is clearly unsustainable, the petitions deserve to succeed. The order of the Assistant Charity Commissioner dated 20th September, 2010 to the extent of the direction to exclude 498 members from re-election being contrary to the principles of natural justice, unfair and unreasonable must be quashed and set aside. This order to the extent it is maintained by the Jt. Charity Commissioner in appeal decided on 12th January, 2011 8 being Appeal No. 24 of 2010 also stands set aside. It is clarified that this court has not gone into the controversy and particularly as to whether the Constitution of the Trust which is a educational trust permits enrollment by outgoing Managing Committee on the eve of elections or not. All contentions in that behalf can be raised at appropriate stage before the appropriate forum and in appropriate proceedings. It will be open for respondent no. 1, who wish to assail the enrollment of the members, to approach a competent forum/court so as to have these issues decided by impleading all the affected parties and needless to add that all the contentions of the parties on the issue of maintainability, jurisdiction and merits in such proceedings are kept open. Needless to state state it would be open for the petitioner before me and such others who are parties to the proceedings to raise the issue of locus standi of respondent no. 1 or the others, who were part of the managing committee elected by elections which were held on 27th October, 2007 to file and maintain any proceedings of the aforementioned nature. All contentions even in that behalf are kept open. Petitions allowed in these terms but without any order as to costs. (S.C. DHARMADHIKARI,J.)