1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 824 OF 2008 Mohanaji s/o Jaibaji Sakhare .. APPELLANT VERSUS Rambharti s/o Ganpatbharti & others .. RESPONDENTS Mr. M.K. Deshpande, Advocate for the appellant. Mr. M.V. Deshpande, Advocate for respondent nos. 1 and 2. WITH SECOND APPEAL NO. 792 of 2008 Rambharti s/o Gnpatbharti & another .. APPELLANTS VERSUS Mohnaji s/o Jalbaji Sakhre & others .. RESPONDENTS Mr. P.D. Bachate, Advocate for the appellants. Mr. M.K. Deshpande & Mr. M.V. Choudhari, Advocate for respondent no. 1. 2 WITH FIRST APPEAL NO.2840 OF 2009 Rambharti s/o Ganpatbharti & another .. APPELLANT VERSUS Mohnaji s/o Jalbaji Sakhre & others .. RESPONDENTS Mr. A.N. Nagargoje, Advocate holding for Mr. P.D. Bachate, Advocate for the appellants. ===== CORAM : R. M. BORDE, J. RESERVED ON : 28 th JANUARY, 2010. PRONOUNCED ON : 10 th MARCH, 2010. PER COURT : 1 Second appeal no. 824/08 is presented by one of the proposers in respect of change in the constitution of the Managing Committee reported on 22-12-2002 to the Assistant Charity Commissioner. The order passed by the Adhoc District Judge -3, Nanded in Misc. RJE no. 201/06 is challenged by the appellants so far as it relates to a finding in respect of refusal to direct acceptance of change report presented at the instance of the appellants. 3 . In the companion second appeal bearing Second Appeal no. 792/2008 presented by the objectors to the change, the order passed by the Adhoc District Judge – 3, Nanded on 24-6-2008 is subjected to challenge so far as it relates to finding recorded by the court in respect of validity of the members enrolled on 15-11-2002 vide resolution number 47. . First appeal bearing First Appeal no. 2840/2009 is presented raising challenge to the order passed by the Adhoc District Judge – 3, Nanded in Misc. RJE no. 199/06 decided on 24-6-2008 dismissing the appeal and thereby upholding the finding recorded by the Jt. Charity Commissioner in respect of enrollment of the members in accordance with the resolution adopted in a meeting held on 1-4-2000. 2 Appellants in both the second appeal as well as the first appeal are the trustees of the trust Shri Samartha Vidyalaya Society, Pimparkhed, Tq. Hadgaon, Dist. Nanded. The trust came to be registered on 18-11-1965 and initially there were 9 members of the governing council of the trust. Out of the 9 members, three members namely Dhondiba Kadak, Daulabha Malhari and Raghunath Kautikar died on 25-8-1980, 4-5-1993 and 13-7-1976 respectively. According to the reporting trustees ( Parsuram, Ramchandra, 4 Kumbhakarna and others) a meeting of general body of trust was convened on 22-12-2002 and the new governing body of 9 members was elected. There were three out going trustees by name Ram Bharati, Rajendra Bharati and Narayan More as per the reported change. It is contended that the notice of change was sent to them. They appeared and submitted their objections before the Assistant Charity Commissioner. According to the reporting trustees, three trustees of the trust namely Vitthal, Mohanaji Sakhare and Narayan More issued notice to trustees calling upon them to hold the meeting of the trustees. Notice was stated to have been issued in accordance with Rule 16 of the rules framed by the trust. The office bearers of the trust did not convene the meeting, as such, the reporting trustees issued further notice on 7-11-2002 informing that there would be a general body meeting on 15-11-2002 for the purpose of settling the accounts of the trust as well as for enrolling new members and for the purpose of filling up the vacancies of the deceased members or to elect new governing body. It is contended that in the general body meeting dt. 15-11-2002, 14 new members were added. The objectors i.e. Rajendra Bharati, Ram Bharati did not remain present in the meeting. It was also resolved in the meeting to hold general body elections, and, accordingly the general body meeting of the trust was convened and, same was held on 22-12-2002. In the meeting, 5 new Managing Committee of the trust was elected and said change was informed to the Assistant Charity Commissioner for the purpose of recording appropriate entries in the record of trust. 3 Objectors appeared before the Assistant Charity Commissioner in pursuance to the notice and presented their objection application. The objectors contended that infact there was no meeting held as alleged by the reporting trustees and therefore, election of the office bearers as well s enrollment of the new members is not legal and valid. 4 The Assistant Charity Commissioner after holding enquiry recorded finding that the meeting in respect of electing the trustees is invalid as there was no notice to 31 members of the trust. The Assistant Charity Commissioner therefore, refused to accept the change report. The Assistant Charity Commissioner however, held that the enrollment of members vide resolution passed on 1-4-2000 and 15-11-2002 is legal and proper and newly enrolled members are entitled to participate in the election of the trust. Adv. Mr. V.G. Bachate was appointed as Election Officer to conduct the elections of the trust. 6 5 Order passed by the Assistant Charity Commissioner was subject matter of challenge at the instance of reporting trustees as well as the objectors. It is to be noted that some of the reporting trustees presented application before the Assistant Charity Commissioner informing that they do not want to press the change report. However, one Mohanaji Sakhare was permitted to prosecute the application as he was one amongst the elected members of the Managing Committee. Said Mohanaji Sakhare presnted appeal being Enquiry no. 35/2005 to the Jt. Charity Commissioner. The appellant Mohnaji objected enrollment of members in view of resolution adopted in a meeting dt. 1-4-2000 so also presumably directions issued by the Assistant Charity Commissioner in respect of appointment of Election Officer for the purpose of holding elections. The other side i.e. objectors have challenged the order passed by the Assistant Charity Commissioner in Enquiry no. 31/2005 in appeal filed before the Jt. Charity Commissioner so far as it relates to induction of new members in view of resolution adopted in the meeting dt. 15-11-2002. Both the appeal were heard together by the Jt. Charity Commissioner. It is specifically mentioned in paragraph no. 5 of the order passed by the Jt. Charity Commissioner that the appellants in both the appeals have made clear in the appeal memo itself that they do not propose to challenge the judgment and order passed by the Assistant 7 Charity Commissioner so far as it relates to rejection of change report. The issue that has been canvassed before the Jt. Charity Commissioner is only restricted to enrollment of members. The Jt. Charity Commissioner after hearing the arguments advanced by both the parties was pleased to allow both the appeals. Directions issued by the Assistant Charity Commissioner in respect of holding of elections as well as enrollment of new members in view of resolution passed in the meetings dt. 1-4-2000 and 15-11-2002 are quashed and set aside. One of the reporting trustees Mohanaji presented application under section 72 of the Bombay Public Trust Act to the District Judge which was registered as Misc. RJE (BPT) no. 201/2006. The appeal is directed against the order passed by the Jt. Charity Commissioner so far as it relates to induction of new members vide resolution dt. 15-11-2002 as well as non- acceptance of change report. The District Jude while deciding the appeal recorded finding that enrollment of members vide resolution exh. 47 adopted in meeting dt. 15-11-2002 is legal and proper. Rest of the order passed by the Jt. Charity Commissioner on 16-10-2006 was maintained. 6 One of the reporting trustees has as such approached this court by presenting Second Appeal no. 824/2008 wherein challenge is restricted so far as it relates to refusal to accept the change report whereas Second 8 Appeal no. 792/2008 is presented by the objectors raising exception to the order passed by the Adhoc District Judge in isc. RJE no. 201/2006 so far as it relates to the order refusing to accord approval in respect of enrollment of members in view of resolution dt. 1-4-2000 adopted by the trustees of the trust and confirmation of the order passed by Jt. Charity Commissioner in that behalf by the District Judge. First Appeal no. 2840/2009 is directed against the order passed by the Adhoc District Judge – 3, Nanded on 24-6-2008 in RJE no. 199/2006 thereby setting aside the order passed by the Jt. Charity Commissioner so far as it relates to enrollment of members in view of resolution adopted by the Managing Committee of the trust in its meeting dt. 15-11-2002 and permitting such newly added members to participate in the process of election. 7 So far as Second Appeal no. 824/2008 is concerned, the appellant claims that the the challenge is in respect of refusal by the authorities to accord approval to the change report submitted by the reporting trustees. It has been pointed out that initially the Assistant Charity Commissioner in view of order dt. 30-8-2005 refused to accord approval to the change reported by the reporting trustees which includes the appellant in Second Appeal no. 824/2008. The Assistant Charity Commissioner however determined the issue 9 of legality of the membership enrolled vide resolutions dt. 1-4-2000 and 15-11-2002. There were two appeals presented to the Jt. Charity Commissioner; one by Mohanaji appellant in Second Appeal no.824/2008 and another by Ram Bharati appellant in Second Appeal no. 792/2008. Appeals are restricted to the challenge in respect of part of the order whereby directions were issued for holding elections as well as according approval to the enrolment of members by the Assistant Charity Commissioner. It is specifically observed in the judgment delivered by the Jt. Charity Commissioner that there is no challenge raised by either of the parties in respect of refusal by the Assistant Charity Commissioner to accept the change report. There was therefore no occasion for the appellant in Second Appeal no. 824/2008 to raise issue in respect of acceptance of change report before the District Court. The appeal presented by the appellant Mohanaji appears to be in respect of enrollment of the member vide resolution dt. 15-11-2002 as well as non-acceptance of change report. It is to be noted that the Jt. Charity Commissioner while dealing with the appeals quashed the pat of the order issued by the Assistant Charity Commissioner holding the members enrolled in view of resolution dt. 1-4-2000 and 15-11-2002 to be eligible to participate in the election process. Thus, the appellate authority has declared the action of enrollment of members as 10 illegal. The appellant in Second Appeal no. 824/2008 is in favour of legality of meeting dt. 15-11-2002 for the purpose of enrolling members whereas the appellant in Second Appeal no. 792/2008 and First Appeal no. 2840/2008 supports the legality of the meeting dt. 1-4-2000 held for approving enrollment of members. The District Court found that the order passed by the Jt. Charity Commissioner holding that the meeting dt. 1-4-2000 is illegal and enrollment of the membership vide resolution adopted in the said meeting is also illegal, does not call for any interference. The appellate court found that there are proper reasons recorded by the Jt. Charity Commissioner to support the order. The District Court found that there are absolutely no reasons recorded by the Jt. Charity Commissioner for arriving at such conclusion. 8 I have perused the orders passed by the Jt. Charity Commissioner as well as the District Court. The District Court while dealing with the issue has found that there was no copy of rules and regulations / constitution of the trust placed on record before the lower authority. It was therefore difficult to access and give finding in respect of legality or otherwise of the action of enrollment of members. District Court also has not dealt with the provisions of the constitution of the trust or the bye-laws of the society prescribing 11 criteria in respect of enrollment of members. It is pointed out that the trust is also registered as a society and the procedure in respect of enrollment of membership is recorded in bye-laws of the trust / society. The copies of the regulations / bye laws are placed on record of the District Court. The classification of membership is provided in bye-laws. It also prescribes for payment of fees / admission charges / donations in respect of different classes of members. The Managing Committee is empowered to accord approval for enrollment of the members. On perusal of the judgments delivered by the trust authorities / District Court, it transpires that none of the deciding authorities / court has dealt with the provisions regulating induction of members of the trust. The procedure in respect of holding of the meeting of the Managing Committee is also prescribed under the bye laws. It is also to be looked into as to whether the holding of meeting in which approval is accorded for enrollment of members is in accordance with the provisions of the bye laws of the trust / society. It appears that the provisions of the bye laws have not been taken into account by any of the authorities / court below while determining he issue in respect of enrollment of membership. In these circumstances, it would be appropriate for the trust authority to apply mind to the record of the case and determine the issue afresh. 12 9 As stated above,the issue in respect of acceptance of change report was not at made a subject matter of challenge before the Jt. Charity Commissioner by either of the parties. It was therefore not permissible for the District Court to deal with the issue and the said issue cannot be re-agitated before this court in second appeal. The only question that is left open is in respect of enlistment of members. So far as the First Appeal no. 2840/2009 is concerned, the same is presented by one group supporting the issue of enrollment of members vide resolution passed in the meeting dt. 1-4-2000. Separate enquriy application raising exception to the part of the order issued by the Jt. Commissioner in that regard being Misc. RJE (BPT) no. 199/2006 was presented to the District court and the said application was considered and decided by the Ad-hoc District Judge – 3, Nanded on 24-6-2008. Application presented by the concerned applicants came to be rejected. Thus, the picture emerges is that enrollment of members vide resolution passed in the meeting dt. 1-4-2000 has not been approved by the District Court whereas the enrollment of members vide resolution passed in the meeting dt. 15-11-2002 has received a stamp of approval. At the cost of repetition it is to be noted that the authorities / courts below while dealing with the issue of membership has not at all considered the provisions of the bye laws / constitution of the trust. It is to be examined as to whether there 13 were applications by the concerned members for enlistment of membership, whether fees prescribed / admission charges were deposited by the concerned members with the society and thirdly whether the Managing Committee has approved the membership in a meeting validly and legally convened. These are the issues which are required to be dealt with and addressed by the authorities created under the provisions of Bombay Public Trust Act. it has been pointed out that there are different change reports being enquiry application no. 893/2006 and 894/2006 presented to the Assistant Charity Commissioner and those are pending for adjudication. It would be appropriate for the Assistant Charity Commissioner to deal with the issue of membership while dealing with the legality of the change report. In this view of the matter, I am of the opinion that all the appeal presented to this court can be disposed of keeping the issue in respect of enrollment of membership open for adjudication by the Assistant Charity Commissioner. The Assistant Charity Commissioner shall deal with the issue after considering the contentions that may be raised by either of the parties. It is needless to note that the Assistant Charity Commissioner would afford proper opportunity of hearing to all the parties concerned, before deciding the issue. It is specifically made clear that the observations made in the judgment are of prima facie nature and the Assistant Charity Commissioner 14 shall deal with the matter on its own merit and in accordance with the provisions of law. For the reasons stated above, all the appeals stand disposed of. 10. Pending civil application, if any, does not survive and stands disposed of. ( R. M. BORDE, J.) dyb/office/sa824.08.odt