1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.1579 OF 2009 1. Rajkumar s/o Kisanrao Thete, Age 39 years, Occ. Service, R/o Chobha Nimgaon, Tal. Ashti, Dist. Beed 2. Meerabai w/o Ambadas Chauhan, Age 45 years, Occ. Household, R/o Sheyanagar, Aurangabad 3. Himmatrao s/o Balkrishna Shinde, Age : 56 years, Occ. Service, R/o Borgaon Bazar, Tal. Sillod, Dist. Aurangabad 4. Pramod s/o Ajayrao Patil, Age : 28 years, Occ. Reporter, R/o Navjivan Colony, N-11, Hudco, Aurangabad 5. Shaikh Mohamad Hanif Ibrahim, Age : 38 years, Occ. Service, R/o Sompuri, Tal. Paithan, Dist. Aurangabad 6. Popat s/o Kundalikrao Ghule, Age : 45 years, Occ. Service, R/o Vithalnagar, Murshadpur, Tal. Ashti, Dist. Beed 7. Sandip Himmatrao Shinde, Age : 26 years, Occ. Nil, R/o Borgaon Bazar, Tal. Sillod, Dist. Aurangabad ..PETITIONERS VERSUS 2 1. The State of Maharashtra, through its Secretary, Social Justice and Cultural Activities Department, Mantralaya, Mumbai 2. The Administrator and Social Welfare Officer, Group - A, Zilla Parishad, Aurangabad 3. The Commissioner (Handicapped Welfare), Mantralaya, Mumbai 4. The Deputy Secretary, Social Justice and Cultural Activities Department, Extension Building, Mantralaya, Mumbai 5. Marathwada Gramin Apang Vikas Mandal, Dawarwadi,Tal. Paithan, Dist. Aurangabad, through its President Mohamat Ayub s/o Mohamad Mazidkhan, Age 38 years, Occ. Social Service, R/o At post Dawarwadi, Tal. Paithan, Dist. Aurangabad 6. Mohamat Ayub s/o Mohamad Mazidkhan, Age 38 years, Occ. Social Service, R/o At Post Dawarwadi, Tal. Paithan, Dist. Aurangabad ..RESPONDENTS Mr V.D. Sapkal, Advocate for the petitioners; Mr K.B. Chaudhari, A.G.P. for respondents no.1, 3 & 4; Mr D.R. Kale, Advocate for respondent no.2; Mr V.D. Hon, Advocate for respondent no.5; Mr F.R. Tandale, Advocate for respondent no.6. 3 CORAM : P.V. HARDAS AND A.V. NIRGUDE, JJ. (Date of reserving the judgment : 15.9.2010 Date of pronouncing the judgment : 23.9.2010) JUDGMENT [ PER P.V. HARDAS , J ] Rule, returnable forthwith. With the consent of learned Counsel for the parties this petition is heard finally at the stage of admission. 2. By this petition under Article 226 of the Constitution of India the petitioners pray for quashing and setting aside/recalling the order dated 6.2.2009 rendered by this Court in Writ Petition No.440 of 2008 holding that the order is obtained by respondents no.5 & 6 by practicing fraud on the Court. 2. Facts, in brief, as are necessary for the decision of this petition may be stated thus :- 4 The respondents no.5 & 6 herein had filed Writ Petition No. 440 of 2008 challenging the order dated 9.2.2005 passed by respondent no.1 appointing an Administrator to look after the affairs of the trust. It appears that the Administrator, by the aforesaid order, had been appointed on account of pendency of several disputes relating to the management of the trust. In the said petition the petitioners had also prayed for ad interim relief of staying the effect and operation of the order dated 9.2.2005. The petition thereafter came to be amended and by virtue of the amended prayer clause the petitioners prayed for issuance of a writ of certiorari for quashing and setting aside order dated 12.9.2008 passed by Deputy Secretary, Social Welfare Department, Maharashtra State, Mantralaya, Mumbai. It also appears that order dated 9.2.2005 was subject-matter of challenge in Writ Petition No.1786 of 2006. The aforesaid order dated 9.2.2005 had been passed by the respondents appointing an Administrator. It also appears that at the time of hearing of Writ Petition No.1786 of 2006, the Division Bench of this Court expressed its disinclination to interfere with the impugned order and accordingly the petition came to be rejected. This Court, therefore, while examining Writ Petition No.440 of 2008 at paragraph 3 of the said order pointed out that the challenge in respect of the order passed by the respondents dated 9.2.2005 would not survive in the light of the order dated 9.11.2006 passed 5 by this Court rejecting Writ Petition No.1786 of 2006. This Court, therefore, examined the challenge in relation to the order dated 12.9.2008. The Division Bench of this Court examining the provisions, particularly section 3 of the Maharashtra Educational Institutions (Management) Act, 1976 came to the conclusion that the order dated 12.9.2008 was wholly unsustainable in law. In that light of the matter, therefore, while allowing the petition i.e. Writ Petition No.440 of 2008, the Division Bench of this Court struck down order dated 12.9.2008. On the basis of the statement made by the learned Counsel appearing for the petitioners therein that the challenge to the election of the trustees had been eclipsed, this Court directed that the management be restored back to the trustees whose election has been upheld by the authorities. 3. On behalf of the respondents there is no challenge to the maintainability of the present petition as well as there is no challenge to the fact that the petitioners represent the rival group between whom several disputes are pending. Mr V.D. Sapkal, learned Counsel for the petitioners in all fairness had stated that the learned Counsel appearing for the petitioners therein had made a statement that there was no challenge to the election of the petitioners therein on the basis of the instructions provided to the learned Counsel. It is, therefore, very fairly 6 stated before us that the petitioners do not allege that the order has been obtained fraudulently. However, the moot question is, who are the trustees who can be said to have been duly elected and to whom the management can be entrusted. 4. The petitioners have filed several documents indicating that the petitioners are the trustees who can be said to be duly elected trustees and the management ought to have been entrusted to the present trustees. The averments in the petition relate to the several disputes and the several orders passed by the authorities. 5. The respondent no.5, in response to the notice issued, has filed affidavit in reply. In the affidavit in reply the allegations of fraud, etc. have been denied. Respondent no.5 claims to be the President whose election has been upheld by the competent authorities. Respondent no.5 has also filed several documents. 6. With the assistance of the learned Counsel for the parties we have perused the documents filed by the petitioners as well as the documents filed on behalf of the respondents. It appears that a disputed question of fact is raised in this petition in respect of the trustees whose election can be said to have been duly approved by the competent authorities. Several disputes are 7 pending consideration before the Court/Tribunal and even in this Court. In such circumstances, therefore, according to us it would be extremely difficult for this Court to answer the issue as to whether the petitioners are the duly elected trustees or respondent no.5 is the duly elected President and the management of the trust has been handed over to the duly elected trustees. 7. However, a reference to the judgment of this Court, rendered in Writ Petition No.440 of 2008, dated 6.2.2009 may usefully be made. At paragraphs 10 and 11 of the said judgment this Court partly allowed the aforesaid petition and struck down the impugned order dated 12.9.2008 and directed the Administrator to hand over the management to the duly elected body within two weeks from the date of the judgment. Though the Administrator, who is a Social Welfare Officer Group-A, Zilla Parishad, Aurangabad is a respondent to the petition, no affidavit in reply has been filed on his behalf and we are not aware as to what is the nature of the inquiry concluded by the Administrator before handing over the charge of the trust to respondent no.5. Our order is explicit and clear that the management be handed over to the duly elected body. In that light of the matter, therefore, according to us it would be appropriate if the present respondent no.2 i.e. the Administrator and Social Welfare Officer, 8 Group-A, Zilla Parishad, Aurangabad conducts an inquiry and entrusts the management to the duly elected trustees. For the aforesaid purpose, respondent no.2 shall hear the petitioners as well as respondent no.5 and the other trustees if they put in an appearance. Respondent no.2 shall issue notices to the two rival groups of the trustees, giving them opportunity of submitting the documents and filing their reply and after considering the same shall pass appropriate orders and hand over the management of the trust to the duly elected trustees. 8. We, therefore, partly allow this petition and re-call our order dated 6.2.2009 in Writ Petition No.440 of 2008 regarding handing over the management of the trust to the duly elected trustees within two weeks of the judgment and direct respondent no.2 to complete the exercise as has been stated above, within a period of three months from today. Meanwhile, the trustees who had been placed in the management of the trust shall continue to hold charge of the management of the trust subject to the order of respondent no.2. The present body of which respondent no. 5 is the President shall not take any policy decisions in respect of the administration of the trust for a period of three months or till the appropriate orders pursuant to our directions are passed by respondent no.2. While determining as to which is the body of duly elected trustees, the respondent no.2 shall take into 9 consideration the recent change report submitted by the body which claims to have been elected. Mere pendency of change report before the Assistant Charity Commissioner or challenge to the acceptance of the change report, if pending before the competent authorities or the Courts is not a factor for holding that the body of trustees is not duly elected, unless an order of stay is operating which prohibits the newly elected body of trustees from taking charge of the management. 9. Rule is thus made absolute on the above terms with no order as to costs. Sd/- Sd/- ( A.V. NIRGUDE ), ( P.V.HARDAS ), JUDGE JUDGE amj/wp1579.09 10