1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION FIRST APPEAL NO.890 OF 2008 WITH CIVIL APPLICATION NO.2220 OF 2008 1. Bhiwandi Weavers’ Education Society and others. Appellants (Orig.Applicants) vs. 1. Adil A.R.Punjabi & ors. Respondents (Orig.Opponents) Mr.Y.S.Jahagirdar, Senior Advocate with Mr.P.P.Chavan and Mr.F.N.Momin i/b.M/s.Madekar & Co. for the Appellants. Mr.P.K.Dhakephalkar, Senior Advocate for the Respondents. CORAM : ANOOP V. MOHTA,J. DATED : 6th May, 2008 P.C. The Appellants have been aggrieved and dissatisfied by the judgment in M.A. No.48/2007 passed by the District Judge, Thane dated 28.03.2008 under the Bombay Public Trusts Act, 1950 (for short, "BPT Act"). That was an application under Section 72 of the BPT Act against the order in Appeal No.43/2006 dated 7.02.2007 passed by the learned Joint Charity Commissioner (Jt.C.C.) by which the order of Change Report under Section 22 of the BPT Act passed by the learned Assistant Charity Commissioner (A.C.C.) dated 26.05.2007 in Application No.949/2005 has been reversed. Therefore, the present appeal though it is need to be considered as Second Appeal, while deciding the matter 2 on merits in view of the decision of this Court. As agreed by the learned Senior Counsel for both the parties and as consented and argued accordingly, the matter is being disposed of at the stage of admission itself. 2. Some of the basic dates and events are as under: . On 31.10.1973 Appellant No.1 (Bhiwandi Weavers’ Education Society) (for short, "the society") based upon its Memorandum of Rules and Regulations got registered the society. There is no dispute that, some time in 2002 last election of the society held. The term was upto 31.03.2005. 3. On 20.02.2004 by notice Iqbal Punjabi, Respondent No.5 was removed from the post of Chairman of the School Committee. 4. Some time in March, 2005, about 59 persons’ contributed alleged subscription of Rs.250/- each dated 15.3.2005 and were accepted and of 117 persons contribution alleged to be donation of Rs.250/- each dated 24.3.2005 were also accepted. But the membership was given to 59 and not to 117. 5. On 03.04.2005 Iqbal Punjabi, Respondent No.5 filed a 3 Civil Suit for injunction against Appellant No.1 in the Court of Civil Judge, J.D. bearing the R.C.S.No.255/04. The only relief in the suit was to restrain Appellant No.1 from obstructing Respondent No.5 from acting and working and removing him as Chairman of the school committee of Appellant No.1 herein. 6. From 15.04.2004 to 04.7.2005, the various Orders passed directing the parties in the said civil suit No.255/2004 to maintain status quo till the next date. 7. On 30.07.2005, application was filed by Respondent No.5 in civil suit no.255/2004 for extension of status quo order. No order was passed extending the status quo. The only direction given was that Appellant No.1 to file reply. 8. On 10.08.2005 the said suit was simplicitor adjourned to 30.9.2005. 8A. On 28.08.2005, the Governing body of the society by resolution accepted membership of 59 members and rejected of other’s 117. 9. On 30.09.2005 an order of status-quo was passed till next date viz. 25-10-2005 on application filed by Respondent No.5. 4 10. On 25.10.2005 an order of status quo passed till next date viz. 10-11-2005 on application filed by Respondent No.5 since 10-11-2005 no extension of status quo ordered. 11. On 15.10.2005, in the meanwhile, the order passed by A.C.C. Thane, rejecting the application filed by Respondent No.5 herein u/s. 51 of BPT Act seeking consent of the A.C.C., Thane for instituting a suit against the Society and directing the Society to hold elections. 12. In 18.10.2005 in the meanwhile, B.N.Hasse election officer appointed by the A.C.C. issued the election programme. 13. On 25.10.2005 Draft electoral list of 2006 was published by the Election Officer. 14. On 19.11.2005, Respondent No.5 and others took objections to the draft electoral list as 117 members/voters were excluded. All the objections were clubbed and numbered as M.A.No.92/2005 which was decided by the A.C.C., Thane vide order dated 19.11.2005 by directing the election officer to hold these elections pursuant to list of authentic members as per membership 5 register. 15. On 20.11.2005 B.N.Hasse issued a fresh election programme and fresh list of 281 members. 16. On 30.11.2005 elections of the Society were held as per the fresh election programme issued by B.N.Hasse on 20.11.2005. 17. On 18.12.2005, Respondent No.5 herein filed an application for Review bearing Application No.100/2005 for the order dated 19.11.2005 in M.A. No.92/2005. 18. The election of the society was held on 30.11.2005 and a change report No.949/2005 had been submitted to the A.C.C. 19. On 21.01.2006, Respondent No.5 and others filed an application for reconsideration of the order dated 17.01.2006 dismissing Application No.100/2005 before the A.C.C.Thane over which The A.C.C. Thane passed an order that the application be clubbed with C.R.No.949/2005 and it be treated as an objection to the change report. 20. On 26.05,.2005/5.6.2006, the A.C.C., Thane after recording the evidence of both sides and after hearing passed Judgment and order accepting Change Report 6 No.949/2005. 21. On 16.06.2006 the Respondents challenged the same Judgment and order A.C.C. by filing an appeal No.43/2006 before the Jt.Charity Commissioner, Bombay (Jt.C.C.). 22. In August 2006, the Appellants filed cross objections in Appeal No.43/2006. 23. On 7.02.2007 the Jt.C.C. by a judgment and order has allowed Appeal No.43/2006. It was alleged that the cross objections were not considered by the Jt.C.C. 24. Therefore, on 21.12.2007, the Appellants filed an Application u/s 72 of the BPT Act in the Court of District Judge, Thane, bearing M.A. No.48/2007 against the Respondents. 25. On 28.03.2008, the learned ADJ Thane rejected the application bearing M.A. No.48/2007. 26. As per Rule 13 of the Society which is reproduced as under, read with the material available on record, I have no doubt that till the formation of new Governing Council, even after expiry of period of three years, the existing body/Governing Council shall remain in office. 7 There is no question of automatic cessation of authority or power to manage the day to day affairs. Therefore, pending the constitution of the body they are entitled to do the necessary things for the purposes of holding due election as per the Rules and Regulations. Admittedly, the tenure was expired on 31.03.2005. "The Councillors of the subsequent Governing Councils shall remain in office for a period of three years and till the new Governing Council is constituted." 27. Admittedly, in R.C.S.no.255/2004 filed by Respondent No.5 for injunction against Appellant No.1, the interim order was to restrain society from obstructing Respondent No.5 from acting and working and removing him as Chairman of the School Committee. The said order dated 3.4.2004 was continued because of subsequent order right from 15.4.2002 to 4.7.2005 till next date as the order of status-quo. The contention that an application dated 30.07.2005 there was no extension of status quo order and, therefore, after 10.11.2005 there was no extension of status quo order, has no force. Admittedly, there is no order of vacating the status quo on record. On the contrary, from time to time the Court has passed status-quo order though there was no continuation order for some period. In the 8 result the status-quo order need to be treated as continued as not vacated specifically in the present matter. Apart from this, the said status quo order need to be considered in the background of the averments in the suit and the litigation between the parties. The dispute was between Respondent No.5 and Appellant No.1 with regard to the Chairmanship of the School Committee. Therefore, there is nothing to take or treat that the order of status quo against Appellant No.1 in doing other necessary and important things for maintaining day to day affairs of the society and including imperative obligation to hold election of the society after expiry of the terms as referred above. The said interim order/status-quo, in my view, therefore, in the facts and circumstances of the case, in no way affects the obligation and duties of the existing office bears of the society to proceed for election as per the Rules and Regulations. 28. There is no dispute here that by order dated 14.10.2005 the A.C.C., Thane directed to hold elections within one month and appointed election officer accordingly. The schedule was also declared on 18.10.2005 commencing from 25.10.2005 as that was the date for publication of membership list. The final list was accordingly published on 8.10.2005. The date of election and declaration was declared as 20.11.2005. 9 29. By order dated 19.11.2005 the A.C.C. decided all objections filed to the draft Electoral list in M.A. No.92/2005 and thereby directed the election officer to hold elections pursuance to the list of authentic members as per membership register. The election officer issued the fresh election programme on 20.11.2005 and accordingly elections were held on 30.11.2005. The review application filed on 18.12.2005 by Respondent No.5 (Application No.100/2005) in M.A. 92/2005 was rejected on 17.1.2006. 30. As Respondent No.5 and others again moved an application for reconsideration of dismissal of their review application, the A.C.C., Thane had treated that application as objection to the Change Report by order dated 21.1.2006. Both the parties therefore proceeded accordingly and led their evidence to oppose as well as to support the Change Report. The learned A.C.C. by order dated 26.5.2006/5.6.2006 accepted the Change Report. In the result, the alleged 59 persons who were favouring the Chairman/President as alleged had been taken note of. In the result, 117 members who were against the Chairman/President as alleged, discarded. The decision of the Governing Council for acceptance and for rejection of the membership and giving retrospective effect from March 5, 2005 was accepted. The power of 10 Governing Council was therefore accepted by holding that the voters list published by the society was legal and proper. However, accepting the contention of both the parties, directed the detailed enquiry and investigation with regard to the alleged fraud played in respect of the receipt books and accordingly complaint has been filed in the Criminal Court of Bhivandi and directed the Police Authority to proceed in accordance with law. The same is still pending. 31. The suo motu enquiry under Section 41-B as directed on 4.4.2004 is also pending read with proceedings under Sections 41-D and 41-E of BPT Act. 32. The cross objections as filed was also accordingly disposed of, though there was no specific reference made to the objection raised, but reasoning so given covers the cross-objection also and specially when both the parties have acted on the clubbing of these applications and proceeded accordingly. The decision so taken is also intended to dispose of points of cross objections. Even otherwise, in the present facts and circumstances it was in the interest of justice and to avoid further delay and the issues were considered after hearing both the parties and material available on the record. In this background the submission therefore that cross objections were not considered is also unsustainable. 11 33. The Appellants/original Applicants had filed an application under Section 70 of the BPT Act (Appeal No.43/2006) against Change Report No.949/2005 before the Jt.C.C. Whatever may be the nomenclature of the receipts of the payment either as membership fee or as a donation, at the relevant time, the intention was to have supportive voters by either of the groups. The two lumpsum payments were made for these memberships separately. It appears that 59 supporting members applications were accepted, but at the same stroke rejected 117 members who were supporting the Respondents. The controversy is revolving around the receipts passed by the ex-Secretary Mr.Hasan Bhopali, treating & acknowledging the payment of Rs.250/- each by 59 members as subscription fee and acknowledging the amount of Rs.250/- each of 117 members as donation. These two types of separate receipts of donation and subscription were issued though the payment was made in lumpsum on two respective dates. That resulted into the controversy as the Governing body rejected the membership application of 117 members who acknowledged to have paid donation on 24.3.2005 and whereas membership application of 59 members were accepted as they acknowledged to have paid the subscription fee on 15.3.2005. Strikingly, on both these occasions the respective receipts were acknowledged & given by the 12 same Secretary, at the relevant period, Mr.Hasan. 34. There is no dispute that all the above membership drive was commenced prior to the declaration of election programme i.e. 14.10.2005/18.10.2005. The election was conducted based upon the alleged authentic membership list including 59 and excluding 117. Admittedly, the Governing Council, on 28.08.2005 whose tenure expired on 31.03.2005 resolved and enrolled these members just before election. Though membership amount is paid yet without the approval of the Governing Council, no-one can become member of the society automatically, merely on the submission of the membership form with amount. Therefore, the power of defacto Governing Council after 31.03.2005 to induct and/or reject membership in such fashion cannot be said to be in good faith and within the frame work of the Rules and the Law. Such Governing body cannot act in such discriminatory manner. In the present case as the issue regarding fraud with respect to these receipts is already sent/pending before the appropriate Criminal Court, there is no point, to permit even these 59 members for the purposes of election of the society. The decision so taken is therefore rightly held to be illegal as the acceptance of those membership itself was illegal. In the process, the whole election so held is rightly declared to be illegal. In the result, the acceptance of impugned Change Report was 13 also illegal. 35. In so far as the effect of status-quo in the present matter, as discussed above and based upon which the order of Change Report was quashed and set aside need to be clarified only to the extent that the status-quo order was not against the Appellants to resolve or to take necessary decision, with regard to day to day affairs of the society. If that was so, no election process could have proceeded further. It was all the time in reference to Respondent No.1’s prayer of continuing as Chairmanship pending the Suit. The membership drive though moved earlier and it was definitely accepted and approved after the expected election expressed by the concerned Authorities which was much prior to the Meeting dated 28.08.2008. 36. In view of above, the decision of rejecting the Change Report dated 7.02.2007 is rightly considered by the District Judge, Thane, on the application under Section 72 of the BPT Act filed by the Appellants and further by holding that; the Change Report accepted by the learned A.C.C. was illegal, improper and; therefore, the learned Jt.C.C. is correct in quashing and setting aside the impugned judgment and order dated 26.05.2006 and, thereby maintained the order dated 7.02.2007. 14 37. The observations with regard to the receipt books and alleged fraud and FIR are recorded in paragraphs III and IV of the judgment dated 28.03.2008 read as under : (III). The Receipt Books filed by the society and by other have been carefully scrutinized. After scrutinizing the same, it is observed that the Receipt Book Nos. 63 to 66 i.e. at Exh. 39 (A to D) are different than Ex. 33 to 36. In all these receipt books members are the same. These are 2 sets of 4 books each. Out of all these 2 sets one set must be fabricated. However, as the opponent has already filed a criminal case before the JMFC Bhivandi and the said Court has directed them having investigation into the matter about these documents, so also the Police Authorities has visited this office time to time and inquired into the matter and also stated that after finishing this judicial inquiry, they can start their inquiry about the forged documents. It is not necessary to go into deep as this forum is not expert for investigation of hand-writing or printing as such. It is the duty of Police Authorities to investigate the same. (Para 14 of the judgment referred). (IV) However, it is needless to discuss all these facts argued by the applicant and opponent. It is crystal clear that a FIR has been filed by Mr.Mohd. Hasan vide No.2/06 dated 11.2.06 under the Criminal Procedure Code vide Section 15 (3) and under Indian Penal Code under Section 171, 175, 177, 181, 182, 191, 192, 199, 196, 200, 204 etc. against Sharif Hasan Momin, Yusuf Momin, Abdul Majid, Nisa Ramzan Momin and others in respect of all these fabricated documents. (Para 14 of the judgment referred)." 38. The reasoning so recorded by the learned District Judge, except the reason with regard to the order of status-quo, in the peculiar facts and circumstances of 15 the case, need no interference. The observation of the learned District Judge with regard to the status-quo even if separated, still the conclusion so arrived by the District Judge & Jt.C.C. cannot be said to be perverse and/or contrary to law. The interpretation of Rule 13, even if taken note of & in view of the reasoning given by the Courts below to set aside the Change Report and further directing the parties to hold fresh election is in no circumstances can be said to be beyond the law and/or the record. The background of suo motu enquiry and registration of criminal case and such discrimination in accepting membership and/or rejecting the membership, after the expiry of their tenure just cannot be overlooked. 39. Taking all this into account, the operative order passed by the District Judge on 28.03.2008 which is reproduced as under, need no interference: . "The concerned competent authority to arrange for fresh elections of the Trust/society as early as possible so as to avoid further complications and anomalous situation by appointing appropriate returning officer. . In all fairness the election officer who has 16 already acted may not be appointed as both parties or either of the parties may have grievance about the said election or returning officer because of the disputed introduction of the list in the matter. . Till the elections are held and new governing council assumes the office the present governing council to continue as a care taker and to refrain from taking any major policy decisions affecting smooth administration of the Trust and institutions." 40. In the result, for the reasons so recorded, the First Appeal is dismissed. 41. In view of dismissal of the First Appeal, Civil Application No.2220/2008 also stands dismissed. No costs. [ANOOP [ANOOP [ANOOP V. MOHTA,J.] V. MOHTA,J.] V. MOHTA,J.]