- 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETTION No. 8751 OF 2009 WITH WRIT PETITION No. 8762 OF 2009 The Modern Education Society & Ors. .. Petitioners Vs. Rajendra Mahadev Mali & Ors. ..Respondents Mr. N. V. Walawalkar, Sc. Counsel with Amit Borkar, for the Petitioner. Mr. C. J. Sawant, Sr. counsel with Mr. S. P. Kadam, for the Respondents. CORAM : R. C. CHAVAN, J. DATED : APRIL 26, 2010. P.C. : 1. These two petitions filed by by persons claiming to be the Secretary and the Chairman respectively of the trust, of Modern Education Society Trust take an exception to the refusal by the learned Jt. Charity Commissioner to stay the effect and operation of Change Report No. 775 of 2009, dated 18-5-2002, accepted by the Dy. Charity Commissioner of Kolhapur. 2. Both the learned counsel have in support of their respective claims, drawn my attention to the chequered history of litigation - 2 - between the parties. The Trust had submitted a scheme which had been approved by the Charity Commissioner on 26th February 1999. There was a challenge to the scheme which led the parties to this Court the first round of litigation. Eventually, the scheme was settled by the Dy. Charity Commissioner by his order dated 31st August 2001. Under Clause 14 of the Scheme, the term of office of the first trustees was ten years and election was required to be held, two months before the expiry of said term. 3. There was some dispute about unseating the petitioners and inducting five new trustees in their place. This dispute also eventually landed in this Court in the form of First Appeal No. 836 of 2006. By an interim order dated 18th April, 2006, this Court directed that the five members of the Managing Committee who were to be affected by the impugned judgment of the District Court, were to be permitted to attend the meetings of the Managing Committee but were not to cast their votes. On 30th May 2006 a meeting was held at which five persons were inducted as trustees. The First Appeal was admitted on 23rd June 2006 and an interim relief in terms of prayer Clause (b) was granted, thereby staying the operation, implementation & execution of the impugned judgment of the learned District Judge, which would have adversely - 3 - affected the petitioners and they were to continue to participate in the meetings by the Trust, and presumably, were also entitled to vote. 4. Thereafter a meeting of the Trust was held before 14th August 2008, wherein the Trust decided to hold elections in terms of Clause 14 of the Scheme. An election programme was published which was to commence from the publication of voters’ list, on 14th August 2008. In pursuance of this programme, elections were held and new Trustees were elected. These elections were confirmed by the Resolution of the General Body Meeting on 17th November 2008. This change was reported by the reporting Trustee to the Dy. Charity Commissioner without impleading the petitioners and others similarly situated persons as parties. The Dy. Charity Commissioner accepted the change, since, according to him, it was in terms of the scheme and there was no opposition. This order of the Dy. Charity Commissioner was challenged by the petitioners by preferring Appeal Nos. 7 of 2009 and 8 of 2009 before the Jt. Charity Commissioner. The petitioners in these two Appeals filed applications at Exhibit 5 before the Jt. Charity Commissioner, seeking stay of the order passed by the Dy. Charity Commissioner. This application was rejected by the learned Jt. Charity Commissioner. It is these orders, refusing to stay the order of the Dy. - 4 - Charity Commissioners, which are impugned in these two petitions. 5. The learned counsel for the petitioners submitted, first, that five persons who had been inducted by the respondents in place of the petitioners could not at all have participated in the decision making process, in view of the order passed by this Court in First Appeal No. 836 of 2006 on 23rd June, 2006. He further submitted that the petitioners would have in any case been entitled to attend the meetings of the Managing Committee and to participate in decision making process, but only not entitled to cast their votes, in terms of the order dated 18th April 2006. Therefore, according to him, the decision to hold elections was taken taken by a Body which was not properly constituted, and which was not competent to take decision. The learned counsel further submitted that since the scheme itself was settled by the Charity Commissioner on 31st August 2001 elections would be due in 2011 and therefore, there was absolutely no occasion for holding elections in the year 2008. Therefore, he submitted that the learned Jt. Charity Commissioner should have seen that refusal to stay operation of the Change Report would have resulted in allowing the affairs of the Trust, to be conducted by a Body which had come into existence, flouting the orders passed by this Court in First Appeal No. 836 of 2006. - 5 - 6. The learned counsel for the respondents submitted that the question of the petitioners or other five Trustees having been inducted in their place, is totally irrelevant for deciding the controversy. He submitted and rightly in my view that out of 11 Trustees, even if five persons on either side i.e. those unseated, or could not cast their votes are excluded, still six trustees would remain and even if opposition of one of the petitioners who claims to be the Secretary is taken into consideration, still the decision to hold election taken by the remaining five Trustees could not be said to have been taken by a Body which was not validly constituted. In any case, these questions can be considered by the Charity Commissioner while deciding the appeal on merits and cannot be permitted to be raised at this stage. 7. As to the terms of the office of the Trustee, the learned counsel for the respondents points out that extract of the Public Trust register shows that an entry, approving the scheme had been taken, by an order dated 26th February 1999. Challenge to this order ultimately resulted approval of the same scheme by an order dated 31st August 2001. Therefore, it does not result in postponing the date of commencement of the scheme from 26th February 1999 to 31st August 2001. In any case this is also an issue which the Charity Commissioner - 6 - would decide while considering the petitioners’ appeals. It cannot be said that on the face of record there was material to show that the Change Report, reporting the elections dated 17th November 2008 was liable to be thrown out without considering the contentions raised by the two sides. Therefore, refusal by the Jt. Charity Commissioner to stay operation of the order passed by the Dy. Charity Commissioners, accepting the change cannot be faulted. 8. Both the writ petitions are dismissed. The learned Charity Commissioner shall make an endeavour to decide the appeals expeditiously without being influenced by any observations while disposing of these petitions. Sd/- [R. C. CHAVAN, J.]