1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION NO.4098 OF 2009. 1. ASHOK SHIKSHAN SANSTHA, GONDIA, THR. RECORDED SECRETARY, R/O. ANANT PALACE, SHRI NAGAR WARD, GONDIA. 2. RAJKUMAR DHANNUJI BOMBARDE, VICE PRESIDENT, ASHOK SHIKSHAN SANSTHA, GONDIA, R/O. RADHAKRISHNA WARD, TAH. & DISTT. GONDIA. 3. KAMAL DASHRAT BOMBARDE, AGED 58 YEARS, SECRETARY, R/O. ANANT PALACE, SHRINAGAR WRAD, GONDIA. .. PETITIONER/S. VERSUS 1. THE PRESIDING OFFICER, SCHOOL TRIBUNAL. NAGPUR. 2. CHANDRAGUPT ZOLUJI AMBADE, R/O. SUBHAS NINAWE, RAM NAGAR, GONDIA, TAH. & DISTT. GONDIA. .. RESPONDENT/S. _______________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. ______________________________________________________________________________ Shri Anil Mardikar, Advocate for Petitioners. Shri V.N.Meshram, Advocate for Respondent No.2. CORAM : R.C.CHAVAN, J. DATED : SEPTEMBER 29, 2009. 1. This petition by a group of persons claiming to be controlling affairs of Ashok Shikshan Sanstha is directed against judgment of the Presiding Officer of the School Tribunal, setting aside dismissal of respondent No.2 Chandragupt Ambade from the post of Headmaster of a school run by Ashok Shikshan Sanstha. The Presiding 2 Officer of the School Tribunal principally held that the petitioners had not shown that they were controlling affairs of the trust and were entitled to initiate disciplinary action against respondent No.2 in which respondent No.2 did not participate. The trust had initially seven members of whom President Shri Mandpe expired leaving six members. Petitioner No.2 Rajkumar Bombarde and petitioner No.3 Kamal Bombarde are the Vice President and Secretary of the trust. According to the learned counsel for the respondent No.2, remaining four members of the trust support respondent No.2 and therefore, there is no question of two petitioners claiming to control the trust and being in position to initiate departmental enquiry against respondent No.2. He pointed out that the Assistant Charity Commissioner had passed an order on 5th May, 2000, whereby he asked the trustees to run the administration by majority, which order is not shown to have been set aside. 2. The learned counsel for the petitioners submitted that the decisions in respect of respondent No.2’s suspension and termination have been taken in general body meeting by a resolution, a copy whereof has been filed on record. He further submitted that the change report had already been filed before the Assistant Charity Commissioner and in view of the judgment in Chembur Trombay Education Vs. D.K. Marathe, reported at 2002(3) Bom. C.R. 161. The change report has to take effect from the date it is filed and therefore, the petitioners have a right to run administration of the trust and had a right to suspend and sack respondent No.2, against whom very serious allegations had been made. He also pointed out that the trustees who support respondent No.2 also faced serious 3 charges and criminal prosecution have been launched. Decision in Chembur Trombay Education’s case, on which the learned counsel for the petitioner places reliance, came in altogether different context. It was not about change in the personnel controlling the trust but it was about change in the constitution of the trust. At page 163 of the report of the judgment it has been mentioned that on 24th March, 1985 general body of the society, by majority, amended the constitution of the society and appointed one Shri Marathe to be the Life President of the society. Now, in this context, in paragraph 11 of the judgment the Court observed as under : “11.Now we would revert to the second aspect of the matter regarding the relief of mandatory/ injunction claimed against the appellants in A.O. No.1260 of 1995 emanating from Notice of Motion No.4762 of 1995 in Suit No.5470 of 1995. The same is pressed essentially on the premise that Shri Marathe still continues to be the life president of the society. This premise, in my view, is wholly inappropriate. It clearly over looks the fact that the general body of the society in its meeting dated March 19, 1995 resolved to amend the constitution thereby deleting the provisions which ordained that Shri Marathe shall remain life President of the society. Besides deleting the said provision, the general body also resolved to amend the constitution by providing that the post of President as well as that of the Governing Council members shall be filled by election only and the term of their office would be upto a period of three years from the date of assuming office. Besides amending the constitution which effected the change, this change has been reported to the competent authority under section 22 of the Bombay Public Trusts Act, 1950. Besides this change, another change that occurred pursuant to the general body decision dated June 18, 1995 is that Shri V.M. Pant, Senior Member was elected as a President and other members were elected to the new Governing Council, who assumed office after the said resolution. Even this change was 4 reported to the appropriate authority as required under Section 22 of the Act. The argument, however, advanced on behalf of the respondent Shri Marathe is that the said change will come into effect only after the same is accepted by the appropriate authority. The Counsel for the respondent further contends that the amendment to the constitution is yet to be approved by the appropriate authority and till such time the question of conducting elections on the basis of such amended constitution, as has been done in the present case, is totally without authority of law. He further submits that the change report with regard to the amendment of the constitution, being change Report No. 1456/1995, was initially rejected by the Assistant Charity Commissioner by order dated June 6, 1998 which order was later on set aside by the Joint Charity Commissioner on June 13, 1998 at the instance of appellants in A.O. No. 1260/1995. He however, contends that the said decision has been interdicted by the City Civil Court in Charity Appeal Application No. 15/1998. According to him, therefore, the said change report relating to amendment of the constitution is still pending consideration and till such time no steps can be taken on the basis of the amended constitution. This submission is totally misplaced and in the teeth of the settled legal position. The law with regard to the efficacy of any change brought about and its application is no more res integra. The Apex Court in decision reported in A.I.R. 1993 S.C.W. 3006, (Managing Committee, Khalsa Middle School and another V. Smt. Mohinder Kaur and another), has considered this aspect of the matter. The Apex Court was called upon to examine similar provisions of the Societies Registration Act, 1860. The scheme of section 12-A of that Act is more or less same as section 22 of the Bombay Public Trusts Act. The Apex Court compared the said provision with the provisions of sections 18 and 19 of the Companies Act which mandate that the alteration or amendment to the Memorandum of Association of the Company takes effect from the date of its registration only. In that context the Apex Court in para 11 of the said judgment has observed that in absence of any requirement in 5 the Act that the alteration in the Rules and Regulations must be registered with the Registrar, it cannot be held that registration of the amendment is a condition precedent for such an alteration to come into effect. A priori, any amendment or change brought about in accordance with law would come into effect from the date of resolution of the Society to bring about such a change. This proposition is fortified from the plain language of section 22 of the Bombay Public Trusts Act. The said section requires that where any change occurs in any of the entries recorded in the register kept under section 17, the trustee shall, within 90 days from the date of the occurrence of such change, report such change to the Deputy or Assistant Charity Commissioner, as the case may be. The dictionary meaning of expression “occur” as observed in the Black’s Law Dictionary is : “To happy, to meet one’s eyes; to be found or met with; to present itself; to appear; hence, to befall in due course; to take place; to arise.” Giving the natural meaning to this word in section 22 of the Act, coupled with the principle enunicated by the Apex Court that when the Act does not require that registration of any change is a condition precedent to come into effect, I have no hesitation in taking the view that the amendment to the constitution as well as subsequent elections of the President and members of the Governing Council, therefore, came into effect from the date of the respective resolutions of the general body. The enquiry postulated under section 22 is only to ascertain the factum as to whether the change has occurred or not. In the event, the competent authority is satisfied that the change has not occurred in accordance with law, only then that change will have to be undone and status quo ante will have to be restored. A fortiori, resolution of the general body of the Society is sufficient to ignite the change of amendment in the constitution as well as of electing new general body for administering the affairs of the Society. The fact that the change report is pending consideration before the Charity Commissioner, would be of no avail. Understood thus, as a necessary corollary, 6 it will have to be held that the respondent-Shri Marathe ceased to be the President of the Society from the date when the General Body elected another President in its meeting dated June 18, 1995. If this be the position, the respondent-Shri Marathe will have no right whatsoever to continue in the post of president and there would be no question of granting any mandatory relief at this stage.” 3. When the change is disputed it will not be proper to hold, merely because the change report is launched, that change has taken effect from the date such report is launched. In this case, there are four trustees who may have, according to the petitioners, misconducted but still they are trustees. There is no way to ascertain as to what constitutes general body and whether the resolution is properly passed or in any case, question of constitution of general body and its authority would have to be decided by the Charity Commissioner and not by the School Tribunal. There is nothing wrong in respondent No.2’s not submitting to the jurisdiction of the Enquiry Committee constituted by the persons who did not have controlling votes in managing affairs of the trust. Therefore, his non-participation in the enquiry is inconsequential and the order passed by the tribunal cannot be assailed. 4. The learned counsel for the petitioners next submitted that in Kashiram vs. B.R.B. Damle.... Society, reported at 1997(3) Mh.L.J. 235 a Division Bench of this Court had held that when an enquiry is found to be irregular for want of quorum proper course would be for the Deputy Director of Education to take over the enquiry and arrive at an appropriate decision. It is always open to the Deputy Director of Education to consider whether any 7 action is required to be taken in respect of the institution or its officers. In that case, the question was of quorum of enquiry committee and not of competence of the body which ordered the enquiry. 5. In view of this, the petition is dismissed. JUDGE RR.