IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE WRIT PETITION NO. 4436 OF 2008 WRIT PETITION NO. 4436 OF 2008 WRIT PETITION NO. 4436 OF 2008 WITH WRIT PETITION NO. 5577 OF 2008 WRIT PETITION NO. 5577 OF 2008 WRIT PETITION NO. 5577 OF 2008 WITH WRIT PETITION NO. 5651 OF 2008 WRIT PETITION NO. 5651 OF 2008 WRIT PETITION NO. 5651 OF 2008 WITH WRIT PETITION NO. 5954 OF 2008 WRIT PETITION NO. 5954 OF 2008 WRIT PETITION NO. 5954 OF 2008 *** WRIT PETITION No. 4436 OF 2008 WRIT PETITION No. 4436 OF 2008 WRIT PETITION No. 4436 OF 2008 1. The Peoples Education Society) Jat, a Public Charitable Trust, bearing Registration No.F-413, having its office at K.M. High School Satara road, Jat ) through its Secretary/President 2. Dr. Sidlingappa Dhanappa Jevoor age about 60, Occu.- Medical ) Profession, present President) of the Petitioner No.1 Trust,) residing at Mangalwar Peth, ) Jat ) 3. Dhanappa Murgyappa Pattanshetti age about 64 years, Occu.- ) business, r/at Mangalwar Peth) Jat, the present Vice President of Petitioner No.1 Trust ) 4. Gurulingappa Mahalingappa ) Managoli, age about 64 years,) Occu.-Advocate, residing at ) Satara Road, Jat, the present) Secretary of Petition No.1 ) Trust ) 5. Dr. Ashok Shivappa Mogle, ) age about 58 years, Occu.- ) Medical practice, residing at) Satara Road, Jat, present ) member of Petitioner No. 1 ) Trust. ... Petitioners Vs. 1. Dr. Manohar Shivappa Modi, ) age about 64 years, Occu.- ) Medical practice, residing at) - 2 - Modi Surgical Hospital, Rana ) Pratap Chowk, Jat, Tal. Jat, ) District Sangli ) 2. Shri Shivlingappa Channappa ) Shunk, age about 58, Occu.- ) agriculture, residing at ) Basweshwar Colony, Bijapur ) road, Jat, Taluka Jat, ) District Sangli ) 3. The Assistant Charity Commissioner Sangli region, Sangli, having) his office behind old ) Railway Station, Wakarbhag ) Sangli. ... Respondents Mr. S. G. Deshmukh, for the petitioners. Mr. V. B. Naik i/b Mr. Sandesh Patil for respondent No.1. Mr. S.D. Rayrikar, AGP for respondent No.3. *** WRIT PETITION No. 5577 OF 2008 WRIT PETITION No. 5577 OF 2008 WRIT PETITION No. 5577 OF 2008 1. Shri Kasari Shikshan Prasarak Mandal, Yavluk, Taluka ) Panhala, District Kolhapur ) through President Vasantrao ) Dattatray Patil, Age 62 years) residing at Post Yavluj, Tal.) Panhala, District Kolhapur ) 2. Shri Vasantrao Dattatray Patil Age 62 years, 3. Shri Pandurang Ganpati Kashid) Age 50 years, ) 4. Shri Shrikant Dyandev Hirve, ) Age 52 years, ) 5. Shri Krishna Ishwara Bhosale ) Age 68 years, ) 6. Shri Ashokrao Hindurao Borage) Age 51 years, ) - 3 - 7. Shri Ramchandra Yashwant Patil Age 62 years, ) 8. Shri Bapuso Bhairu Patil, ) Age 65 years, ) 9. Shri Balwant Krishna Parit, ) Age 48 years, ) 10.Shri Balwant Krishna Parit, ) Age 52 years, ) 11.Shri Jaysing Dnyandev Patil, ) Age 50 years, ) 12.Shri Dinkar Deu Jadhav, ) Age 68 years, ) 13.Shri Madhukar Dnyandev Hirve,) Age 52 years, ) 14.Shri Suresh Vasantrao Patil ) Age 32 years, ) All residing at Yavluj, Tal. ) Panhala, District Kolhapur ... Petitioners Vs. 1. Shri Arun Shamrao Patil, ) Age 49 years, ) 2. Shri Mansing Hindurao Patil, ) Age 32 years, ) 3. Smt. Ambutai Hindurao Patil, ) Age 55 years, ) 4. Shri Mahadev Dagadu Patil, ) Age 45 years, ) 5. Shri Pandurang Bhau Patil, ) Age 55 years, ) 6. Shri Jaysing Bhairu Patil, ) Age 56 years, ) 7. Shri Madhukar Shamrao Patil, ) Age 42 years, ) 8. Mrs. Vidya Arun Patil, ) - 4 - Age 45 years, ) 9. Savita Hindurao Patil ) Age 40 years, ) 10.Rupali Jaysing Patil, ) Age 28 years, ) 11.Shri Bhagwan Sadashiv Patil, ) Age 45 years, ) 12.Latadevi Jaysing Patil, ) Age 50 years, ) 13.Shri Bhivaji Sakharam Patil ) Age 47 years, ) 14.Sangita Hindurao Patil ) Age 31 years, ) 15.Shri Sandip Jaysing Patil, ) Age 28 years, ) 16.Shri Nitin Jaysing Patil, ) Age 26 years, All residents of - At post ) Yavluj, Taluka - Panhala ) District Kolhapur. ) 17.The Dy. Charity Commissioner ) Kolhapur, Bagal Chow, near ) ICICI Bank, Kolhapur ... Respondents Mr. S. S. Patwardhan, for the petitioners. Mr. V. A. Shastri for respondents. Mr. S. D. Rayrikar, AGP for respondent No.17. *** WRIT PETITION No. 5651 OF 2008 WRIT PETITION No. 5651 OF 2008 WRIT PETITION No. 5651 OF 2008 1. Shams Education Society, ) a registered Trust having its) office at Laxmi Market, 1st ) floor, Municipal Shopping ) Centre, Miraj, Dist. Sangli ) 2. Mansoor Ibrahim Sharik ) - 5 - Maslat, aged 41 years, Occu.-) business, residing at ) Marwadiwada, Mujawar Galli, ) Miraj, Taluka Miraj, ) District Sangli. ) 3. Babi Ansar Mahmood Sharik ) Maslat, aged 42 years, Occu.-) social service, residing at ) Marwadiwada, Mujawar Galli, ) Miraj, taluka Miraj, ) District Sangli. ) 4. Nazir Mahboob Mutawalli, ) Age 38 years, Occu.-Business,) residing at Mujawar Galli, ) Oppsite Darga Kaman, Miraj, ) District Sangli. ) 5. Sagir Shah Yusuf Shah, ) Bhandari, aged 53 years, ) Occu.- Business, residing at ) near Bhandaribaba Darga, ) Miraj, District Sangli. ... Petitioners Vs. 1. Madhusudan Pandurang Koli, ) Aged 49 years, Occu.-Business) residing at Nadi Ves, ) Koligalli, Miraj, Dist. Sangli 2. Shamshuddin Khaja Shaikh, ) aged 32 years, Occu.-Mechanic) residing at behind Mangal ) Talkies, Miraj, Dist. Sangli ) 3. Asstt. Charity Commissioner, ) Sangli, region Sangli. ... Respondents Mr. S. S. Patwardhan, for the petitioners. Mr. V. A. Sonpal, AGP for the respondent. *** WRIT PETITION No. 5954 OF 2008 WRIT PETITION No. 5954 OF 2008 WRIT PETITION No. 5954 OF 2008 Ad-hoc Committee of the ) Sangli District Cricket Association Mr. Ravindra Gangadhar Biniwale ) - 6 - Secretary, Ad-hoc Committee of the Sangli ) District Cricket Association ) Age 55 years, Occu.- Business, ) R/o.- Biniwale Building, Harbhat) Road, Sangli ... Petitioner V/s. 1. Mr. Anandrao Baburo Patil ) Founder Member, The Sangli ) District Cricket Association ) At-post Nudshingi, Tal.Karveer District Kolhapur ) 2. Mr. Jamal Chand Pataeet ) Founder Member, The Sangli ) District Cricket Association ) R/at : Shrungar Shoppe, near ) water Tank, Behind Bus Stop ) Yashwant Nagar, Sangli ) 3. Assistant Charity Commissioner Sangli Division, Sangli ... Respondents Mr. V. B. Naik i/b Mr. Sukand R. Kulkarni with R.S. Alange, for the petitioner. Mr. P. D. Dalvi, for the Respondent Nos. 1 & 2. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. DATED: DECEMBER 1, 2008. DATED: DECEMBER 1, 2008. DATED: DECEMBER 1, 2008. JUDGMENT JUDGMENT JUDGMENT -------- -------- -------- 1. Rule. Rule returnable forthwith in all petitions. Heard all these petitions finally by consent of parties. Perused the petitions, counter-affidavits and replies. INTRODUCTION INTRODUCTION INTRODUCTION - 7 - 2. All these writ petitions filed under Article 227 of the Constitution of India are directed against the various orders passed by Shri M.K.Dongare, learned Assistant Charity Commissioner, Sangli Division, Sangli ("the ACC" for short) in exercise of powers under section 41A of the Bombay Public Trusts Act, 1960 ("the BPT Act" for short). 3. The parties are different, but the issue involved is identical so also the challenges set up against all the impugned orders passed by the learned ACC unfolding very sad and sorry state of affairs prevailing in the office of the ACC, Sangli, sufficient to tarnish the image of the judiciary as such all these petitions were heard together and closed for judgment with a view to dispose of by a common judgment. 4. The modus operandi adopted by all the contesting respondents in all these petitions reveals that the applications purportedly under section 41-A of the BPT Act were filed making serious allegations against various persons in the body of the applications without joining them. The learned ACC entertained such applications with open - 8 - eyes knowing fully well that the persons against whom serious allegations were made were not even parties to the subject proceedings and passed orders adverse to their interest without following the principles of natural justice. 5. The learned advocates appearing for the petitioners in all these petitions have made serious complaints against the learned ACC for adopting procedure contrary to the rule of law in discharging his duty as a judicial officer. They also brought to my notice that petitions before this Court are nothing but the sample petitions and many such orders have been passed by the learned ACC entertaining such applications purportedly moved under section 41-A of the BPT Act to obtain favourable orders and that all of them were successful in their efforts. 6. This Court was shocked and disturbed to see the speed with which all these applications, filed under section 41-A, were entertained and disposed of by adopting perfunctory and casual approach without following principles of natural justice. Consequently, this Court had to pass an order dated 25th August, 2008 directing the Charity - 9 - Commissioner to inform this Court by filing an affidavit disclosing the number of cases decided by learned ACC just six weeks before his transfer. 7. The learned ACC pursuant to the above order has filed an affidavit dated 15th September, 2008. The relevant extracts of the said affidavit are reproduced hereinbelow to bring on record the magnitude of the illegality committed by the learned ACC while discharging his duty. The subject affidavit reads as under:- "3. Pursuant to the direction of Hon’ble High Court the letter was sent to our Sangli Office by fax to furnish the above information. Accordingly, the Sangli Office has furnished statements containing the above information. 4. As per the abstract (R3) and ‘R4’ to ‘R9’ as furnished by the Sangli Office Shri. M.K. Dongare disposed as many as 1057 matters during the period of December 2007 to May 2008. Monthwise Break-up of disposal is as under Monthwise Break-up of disposal is as under Monthwise Break-up of disposal is as under December 2007 ---- 156 January 2008 ---- 118 February 2008 ---- 102 March 2008 ---- 233 April 2008 ---- 223 May 2008 ---- 225 Copies of monthly statements from December - 10 - 2007 to May 2008 are marked as ‘R4’ to ‘R9’. 5. As per the copy of abstract at ‘R3’ out of total disposed of cases, 1051 matters are found, so it seems that six matters were not traceable. 6. Out of 1051 matters, in 462 matters stereotyped / typed roznamas were written. However, in 41 matters roznamas were written incompletely, and in 542 matters roznamas are not written. 7. Duration of proceedings (from the date of institution to the date of disposal) is as shown in the statement marked at ‘R10’ to ‘R15’." BRIEF FACTS BRIEF FACTS BRIEF FACTS ------------ ------------ ------------ 8. The modus operandi adopted by all the original applicants/ contesting respondents in initial proceedings under section 41A of the BPT Act as also by the learned ACC while disposing them, being common, it is not necessary to trace history of each proceeding from deck to deck. Brief reference to the facts involved in each petition would serve ends of justice. WRIT PETITION No. 4438 OF 2008 : WRIT PETITION No. 4438 OF 2008 : WRIT PETITION No. 4438 OF 2008 : ------------------------------ ------------------------------ ------------------------------ 9. The petitioner No.1 in the above Writ Petition is a Society registered under the Societies Registration Act, 1866 and also public charitable trust registered under the BPT Act (the said Trust). The petitioner Nos.2, 3 and 4 are the - 11 - President, Vice-President and Secretary of the said Trust and other petitioners are the members of the said Trust. The respondent Nos.1 and 2, claiming to be the members of the said Trust, filed an application purportedly under section 41-A of the BPT Act without joining the petitioners as party respondents making serious allegations against them in the body of the application. 10. The above application was entertained by the learned ACC on 10th April, 1988, while he was camping at Kolhapur and without verification of the facts directed the applicants to file affidavit-in-lieu of examination in chief, which was filed by them on 11th April, 2008. The learned ACC, thereafter, allowed the said application vide impugned order dated 15th April, 2008 permitting the applicants to enroll new members and start the election process with further permission to appoint Election Officer. The impugned proceedings were disposed of within a period of six days. 11. The applicants with undue haste have acted upon the aforesaid order. They filed Change Report under section 22 of the BPT Act within a period of one month from the date of order. The Change - 12 - Report proceedings are pending before him. The order dated 15th April, 2006 is a subject matter of challenge in the petition contending that the impugned order is ex facie incorrect, illegal, void and has caused serious miscarriage of justice. (ii) WRIT PETITION No. 5651 OF 2008 (ii) WRIT PETITION No. 5651 OF 2008 (ii) WRIT PETITION No. 5651 OF 2008 12. In above Writ Petition, the petitioner No.1 is an Education Trust, whereas petitioner Nos.2 to 5 are the trustees thereof. The contesting respondents chose to file an application purported to be under section 41-A of the BPT Act being Misc.Application No.579/2008 without joining anybody as respondent or opponent and submitted list of 54 persons for being enrolled as members of the petitioner No.1- Society. 13. The learned ACC, without considering the necessity of joining existing trustees or office bearers of the Trust as respondents, allowed application vide impugned order dated 30th May, 2008 and directed admission and enrollment of 52 persons as members of the Society/Trust. This order was passed incidentally only one day after the Change Reports bearing Nos.405 and 485/2003 - 13 - were listed for hearing before him. Learned ACC has decided the applicaton under section 41-A, practically within a period of seven days from the date of receipt thereof. . When this petition came up for hearing, the material disclosing the sorry state of affairs came to the notice of this Court. Both parties, in order to avoid reasoned judgment, chose to file consent minutes of order duly signed by the respective advocates appearing for the parties and prayed for disposal of the petition in terms of the consent terms. Since all these petitions were heard together, this Court did not accept consent terms filed in the said petition. Hence this judgment. (iii) WRIT PETITION No.5954 OF 2008 (iii) WRIT PETITION No.5954 OF 2008 (iii) WRIT PETITION No.5954 OF 2008 14. This Writ Petition depicts the same scenario as sketched in the aforesaid two matters; wherein the applications purported to be under section 41-A were entertained and allowed by the learned ACC within a span of seven days from the date of filing thereof without considering necessity of joining of the trustees as opponents - 14 - or respondents. 15. The factual matrix in this case reveals that the Sangli District Cricket Association was registered under the BPT Act on 26th June, 1968. The managing committee was constituted to remain in office for a period of three years from 1983 to 1986. One Mr.Arvind Baburao Yadav and Mr.Vinayak Madhav Mirashi, who were members of the original managing committee constituted in the year 1983, filed an application being Application No.1058/2000 under section 41-A of the BPT Act with a prayer to give direction to the trustees to carry out the objects of the Trust on various grounds. The petitioner committee was appointed as Ad-hoc Committee by the learned ACC to look after day to day administration of the said Cricket Association. The Ad-hoc Committee has submitted a scheme under section 50-A(1) to the learned ACC on 7th April, 2001 vide application No.681/2001. During pendency of above proceedings, the application purported to be under section 41-A being, Application No.554/2008 came to be filed on 13th May, 2008 at the instance of respondent Nos.1 and 2 herein without joining anybody as respondent or opponent. - 15 - 16. The learned ACC directed the respondents to file an affidavit in lieu of examination-in-chief, which came to be filed on the very date. The learned ACC proceeded to pass an order and allowed application under section 41-A filed by the respondents/ original applicants and appointed them (S/Shri Anandrao Patil and Jamal Chand Patiat) to look after the affairs of the Society and also permitted them to call a meeting of the members of the society and take all decisions relating to the affairs of the Trust. The impugned order passed by the learned ACC makes reference to the dead trustees of the Trust S/Shri Arvind Yadav, Vinayak Mirashi and also to various litigations to which Shri Ravindra Biniwale is a party. It is, thus, clear that learned ACC was well aware of the fact that there is dispute pending before him between two groups of the Society. The order also refers to the name of the trustees viz., Rajabhau Haribhau Jagdale, Govind Jagganath Joshi, Gurusabbappa Arki, Haider Dadasaheb Kudchikar but conveniently he ignored their absence before the Court. The present trustees were not made parties to the application. As a matter of fact, the learned ACC ought to have realised that the trustees were necessary parties to the petition. The record of - 16 - the proceedings reveals that order-sheets have not been maintained. Consequently, the parties were denied even the certified copies of the order-sheets. (iv) WRIT PETITION No.5577 OF 2008 (iv) WRIT PETITION No.5577 OF 2008 (iv) WRIT PETITION No.5577 OF 2008 17. There is one more petition being Writ Petition No.5577/2008; wherein an application purported to be under section 41-A was filed on 16th May, 2008, joining 16 persons as party respondents/opponents, was heard and decided by Shri M.K.Dongare, in the capacity of Deputy Charity Commissioner vide his order dated 17th May, 2008 wherein he appointed committee of 5 persons to look after the day to to day affairs of the Trust. This order is a subject matter of challenge in this Petition. The Submissions : The Submissions : The Submissions : --------------- --------------- --------------- 18. The advocates appearing for the petitioners in all these petitions strongly criticised the orders impugned in the respective petitions contending that the impugned orders are not only ex facie illegal and bad in law but also unreasonable and unacceptable, causing prejudice. That the - 17 - impugned orders were passed hurriedly with undue haste in a short period ranging from (1) one day to (7) days clearly in breach of principles of natural justice without even looking into the pleadings in the applications and even without noticing that the serious allegations were made against the various persons without joining them as parties to the applications though they were necessary parties. 19. Mr.Deshmukh, learned counsel appearing in one of the petitions has strongly canvassed that the learned ACC has deliberately failed to notice that none of the persons were made parties to the application against whom serious allegations were made in the application. He submits that, had the learned ACC gone through the subject application, it would not have been difficult for him to notice the serious allegations that were made against the present petitioners without joining them as respondents. He further submits that any Judge with average judicial mind ought to have noticed that the person against whom serious allegations are made is required to be joined as party to the proceeding. He further submits that it was not necessary for the learned ACC to accept the application while camping at Kolhapur and pass an - 18 - order thereon directing affidavit in lieu of examination-in-chief. According to him, there is no such procedure requiring an affidavit to be filed in support of the application. He further submits that the learned ACC ought to have put himself on guard noticing that not a single trustee or the office bearer of the Trust was made party to the application, especially, when none of the applicants were projecting themselves in the application to be the office bearers of the Trust. 20. Mr.Deshmukh submits that it was expected on the part of the learned ACC to have gone through Schedule-I to the notice that the petitioner No.1- Trust has always been represented by the members of the managing committee, through its President or Secretary. He further submits that the impugned order is clearly in breach of principles of natural justice. Mr.Deshmukh further pointed out that in the impugned order serious strictures have been passed by the learned ACC against petitioners Nos.2 to 4 behind their back. He submits that it was expected on his part to issue notice to the said petitioners before passing any order, much less impugned order. - 19 - 21. Mr.Deshmukh went a step ahead and pointed out that this is not the only case in which such illegal orders are passed arbitrarily by the learned ACC but there are hundreds of such cases wherein such untenable orders have been passed by him with undue haste behind the back of the office bearers of the Trust, at the instance of some disgruntled persons, who are always ready to indulge in frivolous litigation. He, thus, prayed for setting aside the impugned order. 22. The learned advocates appearing in the other set of petitions supported Mr. Deshmukh and adopted all the submissions made by him. 23. On being asked, learned A.G.P., appearing for respondent No.3 fairly stated that the impugned order cannot be supported. He also candidly admitted that various such illegal orders are passed by the learned ACC (Shri M.K.Dongare) when he was stationed at Sangli. 24. Mr. Naik, learned counsel appearing for respondent No.1 while opposing Mr. Deshmukh tried to support the impugned order contending that the order has been acted upon pursuant to which - 20 - elections were conducted, the change report was submitted and that it was accepted by the very same learned ACC on 22nd May, 2008 and that the newly elected committee has started functioning. He further pointed out that the appeal against the order passed by the learned ACC under section 22 of the BPT Act, accepting Change report is pending before the Joint Charity Commissioner, Kolhapur as such this Court should not interfere with the impugned order. 25. The appeal memo filed in the above appeal produced on record, ( Exh.I) (at page 62) reproduces the order passed under section 22 of the BPT Act, reading as under: ORDER ORDER ORDER "1) Reported Change is hereby accepted 2) Entries is SCH-be amended accordingly 3) No Order as to costs." Sd/- Date: 22/5/2008 (Assistant Charity Commissioner, Place: sangli. ( Sangli Region, Sangli." . Reading of the above order shows the mode, manner and quality of the order passed by the learned ACC while accepting Change Report. Consideration : Consideration : Consideration : ------------- ------------- ------------- - 21 - 26. Having heard rival parties, having noticed the aforesaid scenario common to almost all the cases, this Court can conveniently observe that none of the orders can be said to be the order passed with judicial approach much less with application of mind. The word ‘judicial’ has two meanings; one with respect to the discharge of duties exercisable by a Judge or by Justices in the Court and another with regard to the administrative duty. With regard to first one, application of open judicial mind to the facts of each case while taking decision following principles of natural justice is necessary. 27. On the above backdrop, if one turns to the facts sketched hereinabove, it would be clear that in almost all cases, the absence of application of judicial mind is writ large. Not a single case can be said to have been decided by the learned ACC following principles of natural