1 S.A. 248/2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 248/2011 Aliyoddin Kamaloddin Shaikh, Age : 65 years Occu. Business, Occu. Business, R/o Nandi Road, Firados Nagar, Dhule District : Dhule. ....Appellant. (Orig. Applicant) Versus Mohd. Sharif Shaikh Yasin Siddiqui, Age : 72 yers, Occu. Business, R/o Oppo. Urdu Primary School, Dhule District : Dhule. ...Respondent. Mr. P.R. Katneshwarkar, Advocate for the appellant. Mr. S.P. Brahme, Advocate for respondent sole. CORAM : A.V. NIRGUDE, J. DATED : 3rd August, 2011. ORAL JUDGMENT: 1. Heard. 2. Following substantial questions of law arose in this appeal. I. Whether Rule 4 of the Constitution of the Education Society will override the effect of Rule 15 ? II. Whether in absence of provisions of quorum for meeting of managing committee, the meeting in question was bad in law ? 3. Admit. 4. By consent of learned counsel for both the sides, the appeal is taken up for final hearing. The facts leading to this litigation can in 2 S.A. 248/2011 short be stated as under. 5. There is a education society -cum- Public Trust duly registered under the provisions of the Bombay Public Trust Act, at Dhule. The appellant is the Secretary whereas original respondent No.3 was the President at the relevant time. Some time, prior to April, 1998 the appellant Secretary of the Trust issued a notice to the President as to why his membership should not be cancelled. Original respondent No.3 sent no reply to this notice and so the appellant Secretary issued a notice of meeting of managing committee for taking appropriate resolution for removal of respondent No.3 as member of the Public Trust. The meeting was held on 10/05/1988. At the time of meeting, out of 11 members of the managing committee, only four were present. The appellant Secretary had already mentioned in the notice of meeting that in case of absence of quorum, meeting would be held after half an hour of the scheduled time. Accordingly, after half an hour, the meeting was convened and required resolution for removal of original respondent No.3 was taken. 6. The appellant then moved a change report and the same was rejected by the Assistant Charity Commissioner. However, the Joint Charity Commissioner allowed the same. The learned District Judge while exercising discretion under section 72 of the Bombay Public Trust Act, set aside the impugned order passed by the Joint Charity Commissioner and rejected the change report. The matter then came to this Court in second appeal. 7. A very interesting event took place during the pendency of this proceeding. When the change report was pending before the Assistant Charity Commissioner, original respondent No.3 who was 3 S.A. 248/2011 sought to be removed by the impugned resolution, died in the year 2002. However, present respondent No.1 urged learned Assistant Charity Commissioner to allow him to participate in the proceeding and to oppose the resolution and change report. Accordingly, he was allowed to do so. Various objections were raised in respect of the impugned resolution. But, ultimately only two objections are required to be decided at this stage. The first objection is based on interpretation of rule 6 and rule 15 of the constitution of the Trust. Both these rules are quoted below. 6- lHkklnRo % 1- T;kps o; 21 o’kkZais{kk vf/kd vlsy v”kk mnwZ Hkkf’kd O;Drhl laLFksps lHkkln gksrk ;sbZy- ek¥ R;kl laLFksaph /;s¸; /kksj.ks ekU; vlyh ikfgtsr- 2- lHkkln [kkyhy izdkjps gksrk ;sbZy- 1- vkJ;nkrs lHkkln&101 :i;s fdaok R;kis{kk vf/kd ns.kxh ns.kk&;k O;Drhl vkJ;nkrs lHkkln gksrk ;sbZy- 2- lUekuuh; lHkkln&:-51 oxZ.kh ns.kk&;k O;Drhl lUekuuh; lHkkln gksrk ;sbZy- 3- loZlkekU; lHkkln&:- 25 o izos”k Qh 1 :i;k Hkj.kk&;k O;Drhl loZlkekU; lHkkln gksrk ;sbZy- 4- laLFkk uksan.khP;k osGh >kysys lHkkln gs izorZd Eg.kqu x.kys tkrhy- R;kauk laLFkse/kwu dk<wu Vkdrk ;s.kkj ukgh- 5- lHkkln gks.;klkBh laLFksP;k foghr ueqU;kr laLFksdMs vtZ djkok ykxsy- R;kl dk;Zdkfj.kh eaMGkus laerh fnY;kl lHkkln gksrk ;sbZy- lHkklnRo dj.ks] ukdkj.ks ;kckcrpk lokZf/kdkj dk;Zdkfj.kh eaMGkl jkghy- o R;kauh fnysyk fu.kZ; v[ksjpk letyk tkbZy- 4 S.A. 248/2011 15- lHkklnRo jn~n % [kkyhy d`R; dsY;kl lHkklnkps lHkklnRo jn~n dsys tkbZy- dj.ks 1- lHkklnkpk e`R;w >kY;kl- 2- lHkklnkus jkthukek fnyk vlY;kl- 3- lHkkln osMk >kY;kl- 4- laLFksP;k mn~ns’k o fgrk fo:/n orZu djhr vlY;kl- 5- laLFksP;k fu;ekaps mYya?ku djhr vlY;kl- 6- dk;Z{ks¥ lksMwu xsY;kl vxj tUeBsi >kY;kl- 8. The learned advocate appearing for the respondent No.1 contended that since the original respondent No.3 was a founder member of the Trust, at no point of time, during his life time he could have been dismembered or removed because rule 6 prohibits such action. On the other hand, the learned advocate appearing for the appellant, contended that Rule 15 of constitution of Trust still prevailed and would affect even the founder members of the Trust. The Courts below held that since Rule 15 is subsequent to rule 6 in the constitution, it would prevail. In order to support his contention, the learned advocate appearing for the respondent No.1 placed reliance on judgment of Division Bench of this Court in the case of Hindurao Balwant Patil & Others Versus Krishnarao Parshurm Patil & Others reported in 1982 (1) Bom. C.R. 65. 9. In my view, the ratio laid down in this judgment, is totally alien to the issue before me. In the reported judgment, a Co-operative society was trying to justify its resolution of no confidence passed against certain office bearers. The Division Bench held that in absence of specific provision in the bye-laws and so also in the provision of Maharashtra Co-operative Societies Act, the resolution was illegal. 5 S.A. 248/2011 10 In the present case, we are dealing with the interpretation of the above mentioned rules. The first question therefore, is whether the founder members of the Trust are covered by Rule 15. My answer to this is in affirmative. And not because Rule 15 appears subsequent to rule 4. Rule 15 lays down certain conditions on whose satisfaction a member of a Society would no longer remain member. I would give importance to sub rule 3, 4, 5 and 6 to substantiate my finding. Even a founder member can be affected by insanity and in such event, he is required to be removed. There can be no two opinions about it. A insane person can not be allowed to remain member of a educational Trust. So also a founder member can also be found either acting against the interests of the Trust or committing breach of rules and regulations of the Trust. Such a member even though he is a founder member, is liable to be penalized and ultimately removed, from membership. The last condition that if a member leaves the areas of operation and took up permanent residence outside is applicable to the present case because it is now proved fact that the original respondent No.3 had left Dhule and had started residing permanently at Malegaon. Therefore, condition laid down in Sub rule 6 of Rule 15 is fulfilled in his case and so even though he was founder member, he would be liable to be removed. In other words, if a founder member leaves area of operation of the society, there is strong possibility that he would not be able to devote his time to work for the society and in such situation, he would no longer be useful to the society as a member. In such situation, the society would be entitled to remove him from membership. So, rule 15 certainly is applicable even to the founder members. Rule 6 at the most can be read as laying down a 6 S.A. 248/2011 rule that the founder members would not be liable to pay the periodical subscription for continuation of their membership and for nonpayment of such contribution, they would not be removed. 11. As regards the quorum of the meeting dated 10/05/1998, the learned advocate appearing for respondent No.1 fairly conceded that the rules and regulations do not provide any quorum for constitution of meeting of managing committee. In such a situation, if the Secretary gives notices to all the members of the managing committee and only four members of the managing committee assemble at the appointed time and place for attending meeting and if they constitute a meeting, such meeting can not be said to be illegal. The learned District Judge opined that since four members did not even constitute 50% of the total strength of the managing committee, they ought to have avoided passing the resolution which was of far reaching effect. I am afraid, this could be an opinion of a outsider who is observing the actions of members of the managing committee. However, such opinion would not make the meeting and the business done in such meeting illegal. 12. The third question is whether the managing committee could have passed the resolution of removal of the original respondent No.3 from membership. The Courts below held that the managing committee could pass such resolution because it is the managing committee who could unroll new members and therefore, it was empowered to remove a member so unrolled. I have something more to say on this. The powers of the managing committee to remove a members, comes from Rule 15 quoted above. Rule 15 is discussed above and gives reasons as to when and why a member can be 7 S.A. 248/2011 removed. Since the managing committee is empowered to use this rule for removal of a member, there is hardly any possibility of argument that the managing committee can not remove the member from membership. The appeal should therefore, succeed. ORDER The appeal is allowed. i) The impugned judgment and order passed by the learned District Judge-3, Dhule dated 15/04/2011 in Misc. Civil Application No.20/2010 is set aside. ii) The judgment and order dated 28/01/2010 in Appeal No. 05/2007 passed by the learned Joint Charity Commissioner, Nashik Region, Nashik is confirmed. iii In view of this, Civil Application No. 6741/2011 stands disposed of. [A.V. NIRGUDE,J.] ts k/2011/August3/sa248.11/ok