1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.878 OF 2005 Junnar Taluka Shikshan Prasarak Mandal Junnar & Anr. .. Petitioners Versus State of Maharashtra & Anr. .. Respondents Ms.Anita Agarwal for petitioners Mr.A.V.Anturkar i/b. Vilas Tapkir for respondent Nos. 3 to 9 Ms.Vaidehi Mhaispurkar, A.G.P. for State WITH WRIT PETITION NO.9133 OF 2005 Anant Mukund Joglekar & Ors. .. Petitioners Versus Junnar Taluka Shivner Shikshan 2 Prasarak Mandal & Ors. .. Respondents Mr.V.A.Thorat, Senior Advocate with Mr.A.L.Patki and Mr.R.D.Gate for petitioners Mr.A.V.Anturkar i/b. Vilas Tapkir for respondent No.13. Ms.Vaidehi Mhaispurkar, A.G.P. for State. CORAM : S.C.DHARMADHIKARI, J. DATE : 7th April 2006. ORAL JUDGEMENT:- . These writ petitions are under Articles 226 and 227 of the Constitution of India. They are challenging the decision/ order rendered on 29th November 2005 delivered by the Deputy Charity Commissioner, Pune. The facts giving rise to these petitions are briefly narrated hereinbelow. 2. Writ Petition No.9133 of 2005 is by persons who have applied for becoming members of 3 the Junnar Taluka Shivner Shikshan Prasarak Mandal (for short Trust). According to them, their applications were valid and they were otherwise eligible. Hence, they should be enrolled as members of the Trust. They are entitled to participate in the affairs of the Trust including its elections. 3. The trust was registered in the year 1970. The main aim and object of the Trust is to impart Education to the down trodden and under privileged classes of people, particularly in Junnar Taluka. It is the case of petitioners that earlier trustees of the trust had committed several acts of mis-feasance and mal-feasance. One Sopanrao Pandharinath Nikam had filed an application being Application No.24 of 1991 before Joint Charity Commissioner, Pune. The application invoked Charity Commissioner’s power under section 41-D of the Bombay Public Trust Act (for short BPT Act) and he sought removal of 4 seven trustees. This application was allowed and earlier seven trustees were removed by the Joint Charity Commissioner. He directed the scheme be framed for administration of the Trust. He had appointed an Administrator to the Trust. 4. Pursuant to the directions of the Joint Charity Commissioner, the Dy.Charity Commissioner, Pune framed a scheme vide order dated 6th April 2000. This was an suo mottu exercise by the Dy.Charity Commissioner. The scheme postulates that to fulfil above objects of the Trust, it is free to enroll members. Clause 6 of the scheme provides for membership. The condition therein is that anybody who is competent to contract and a Graduate so also agreeing with the objects of the Trust, can become a member. The person must apply and his application will be placed before the Managing Committee. After approval of the managing committee, the applicant would be enrolled as a 5 member. The managing committee is empowered to reject the application but it must assign cogent reasons. The condition is that if an application remains pending, then, that would be a disqualification for the managing committee members to contest next election. There is only one category of membership. The annual fee is Rs.501/- which is to be paid every year before 31st December. If the said amount is not paid, then membership can be cancelled automatically. The earlier category of members may continue. As far as Trustees are concerned, the number thereof is restricted to 9. The term of office of the Trustees is five years and, thereafter, elections will be held in a general body meeting. A member can contest election to the post of Trustee only twice. The managing Committee/ Trustee’s term is also five years. Their elections are to be held from amongst persons who have been elected at the general body meeting. 6 5. It is stipulated in the scheme that till the new managing committee assumes charge, the old managing committee can look after affairs of the Trust. However, three months before expiry of its term, the outgoing managing committee should initiate process of election. If the process is not initiated, then, after a period of six months from the expiry of the term of old managing committee, the Assistant Charity Commissioner can appoint Administrator till fresh elections are held. It is clarified that after the expiry of its term, the old managing Committee should not take any policy decisions. As far as any person being eligible to be appointed as trustee, he should be a member for atleast two years. It is stipulated in the scheme that in terms of clause 21(3)(e) a list of members is to becertified by the office of Charity Commissioner. That persons in this list alone can participate would in the elections. The other condition in the scheme is that upto 7 31st March every year, the list of members should be filed with the office of Asstt.Charity Commissioner and it should be certified by him. 6. After referring to these clauses, it is contended that although the scheme was framed on 6th April 2000, the first Board of Trustees assumed charge on 7th May 2000. Its term would have ended on 7th May 2005. However, all documents and records were handed over to present trustees by the Inspector in the office of Dy.Charity Commissioner on 5th June 2000. Hence, the Board actually started functioning from 5th June 2000. It is contended that vide a public notice (Exh.B), issued on 22nd April 2001, the Trustees invited applications for membership in prescribed form. The last date stipulated in the public advertisement is 15th May 2001. Several applications were filed. They were scrutinised from time to time in the meeting of trustees and 108 persons were enrolled as members. It is 8 contended that several applications were received from time to time and upon scrutiny the applicants were enrolled as members. 7. It is contended by petitioners that by applications dated 25th April 2005 and thereafter, petitioners applied for membership of the Trust. They are about 64 in number. They paid membership fees of Rs.7000/-. Each one of them is a graduate. Thus, they fulfil the requirement stipulated in the scheme for membership. Upon scrutiny, the trustees resolved vide Resolution dated 2nd May 2005 (Exh.E) that the petitioners are entitled to become members. 8. On 3rd May 2005, vide application (Exh.F), the names of the petitioners were communicated to the Dy.Charity Commissioner. The request was to certify their membership. The list was from Serial No.1 to 248. Application in that behalf is made vide Exh.G. 9 9. It appears that one Sanjay Shivajirao Kale, respondent No.13 in the first petition opposed and objected to the membership of petitioners on the sole ground that they were enrolled after the expiry of the period of the present trustees and that the present trustees were not entitled to consider these applications. The objection of respondent No.13 was based upon the fact that the term of Trustees is from 6th April 2000 for a period of five years and, therefore, the applications considered thereafter i.e. April 2005 are invalid could and not have been accepted. It is the case of petitioners that application (Exh.G) bearing No.63 of 2005 was entertained by the Dy.Charity Commissioner and without issuing any notice to them as also without affording any opportunity of being heard, he rejected the prayer of the Trust to enroll 64 petitioners, whose names appeared at Serial Nos. 185 to 248 of the list. An order was passed to 10 that effect by him on 24th June 2005. The finding of the Dy.Charity Commissioner was that 64 members were enrolled in one day and that exercise could not have been carried out by the present trustees. 10. Aggrieved by the aforesaid order of the Dy.Charity Commissioner, petitioners preferred Appeal No.38 of 2005 before Joint Charity Commissioner and the same was dismissed as not maintainable. A copy of the order is annexed as Annexure I. 11. Petitioners decided to file writ petition challenging the judgement and order of the Joint Charity Commissioner. However, it is their case that respondent No.13 preferred a writ petition in this Court being W.P.No.6462 of 2005 raising the issue of the ensuing elections. A Division Bench of this Court, disposed of this petition by the following order:- 11 ". Rule. Heard forthwith. . It is the contention of the petitioner that the Charity Commissioner has called for the report in so far as membership of the Trust is concerned. Before the Charity Commissioner could decide the issue of membership, the Trust has issued notice for holding elections. By the present petition, the petitioners pray that the Trust be restrained from holding elections. . We have heard the learned counsel for the petitioners. Considering the controversy about membership is being enquired into and enquiry report is submitted, ends of justice will be met if the Charity Commissioner is granted time upto 30th November 2005 to decide the 12 dispute about the membership. On such decision, the elections should be held. In the meantime, the committee already appointed to continue till the elections are held and the new committee is elected. It is made clear that the continuance of the committee will not stay in the way of their contesting the elections. Rule made absolute accordingly. No order as to costs." 12. In the light of the above directions of this Court, it appears that the request of petitioners to accept their membership was renewed but by order dated 29th November 2005, the applications have been again rejected. 13. The grievance of petitioners is that by the order dated 29th November 2005 (impugned order) the Dy.Charity Commissioner has affirmed his order dated 24th June 2005 passed earlier. 13 It is their grievance that the Dy.Charity Commissioner did not verify register of members and records relating to their applications. He wrongly relied upon a report of Inspector from the office but the said Inspector did not verify the records and even did not bother to peruse the report of his Superior submitted on 21st May 2005. According to petitioners, the report of Office Superintendent dated 21st May 2005 (Annexure A) certifies the entire list from Serial Nos.1 to 248 and puts his seal and signature thereon. In these circumstances, the impugned order could not have been passed. 14. In W.P. No.878 of 2006, the above facts are more or less repeated and identical challenge is raised to the impugned order. During the pendency of W.P. No.878 of 2006, it was brought to the notice of this Court by petitioners in W.P.878 of 2006 that vide order dated 10th February 2006, an Election Officer is appointed 14 by the Dy.Charity Commissioner and election programme for was also announced. A copy of that order is annexed as Annexure "C" to C.A.No.668 of 2006. Therefore, the request is to set aside this order as well. 15. Mr.V.A.Thorat, learned Senior Counsel appearing for petitioners in Writ Petition No.9133 of 2005 submits that the list of members forwarded to the Dy.Charity Commissioner is for verification and certification only. No adjudication is contemplated by the scheme. An Officer was deputed to scrutinise and verify the applications. He has submitted his report which is on record. He has, after taking note of objections, in his report, observed that the applications are in order and there is no question of the objections being considered. Mr.Thorat then submits that it is not the case of opponents that petitioners are not eligible for being enrolled as members. He submits that the 15 petitioners are beneficiary members and they have all such rights, as are enjoyed by others, to participate in the affairs of the Trust. He submits that the Inspector in the office of Dy.Charity Commissioner is subordinate to Office Superintendent. He did not examine a single application. However, the Dy.Charity Commissioner relied upon his report and passed the earlier order which is specifically set aside by this Court. It is the respondent who approached this Court vide earlier petition and the order therein came to be passed. Petitioners are not made parties to this petition. He submits that the Dy.Charity Commissioner by the impugned order directs inclusion of 90 members instead of 182 permitted by the earlier order. He invites my attention to the scheme including clause 6 therein and submits that the scheme is in pursuance of a quasi judicial exercise undertaken prior thereto. Initially, trustees were removed and in the interest of the Trust, 16 directions were issued to frame a scheme for its administration and management. He takes me through the order dated 6th April 2000 and submits that even when the scheme was being sanctioned, there were applications of interested persons for membership. He has also invited my attention to the operative order which clearly stipulates that the property will be vest in, from the date of the order, with the first Board of Trustees but they were directed to comply with other clauses and a Administrator was directed to hand over charge to the first Board. In these circumstances, it cannot be said that the Trustees were in error in accepting the applications. Mr.Thorat has referred to an affidavit filed by the Trustee/ Vice-President of the Trust in W.P.878 of 2006 wherein in para 30 after setting out the complete programme of elections chalked out by the Trustees, it is specifically averred that as far as issuance of ballot papers are concerned, separate ballot 17 papers are issued to the members from Senior Nos.1 to 185, 185 to 248 and from Serial Nos.219 to 338. He submits that this contemplates inclusion of all the members. 16. Mr.Thorat has raised a serious grievance with regard to the jurisdiction, power and authority of the Dy.Charity Commissioner to pass impugned order. He invites my attention to Section 41A and Section 68 of the B.P.T.Act. He placed strong reliance on the decision of this Court in the case of Asaram Bhimrao Shinde & Ors., Vs. State of Maharashtra & Ors., reported in 2001 (4) M.L.J. 548, wherein this Court has clearly observed that in exercise of its powers to issue directions, the Charity Commissioner cannot remove or appoint any new Committee for the administration of the Trust. He has relied upon the finding of this Court in that behalf at para 11 and 12 of this judgement. 18 17. Mr.Thorat submits that it is well settled that under the guise of issuing directions, the authorities cannot interfere with the discretionary power of the Trustees to enroll members and any such direction or order would amount to interfering with and violation of the mandate of Article 19(1)(c) of the Constitution of India. Mr.Thorat, made a serious grievance that this is nothing but an attempt by the Trustees who have been removed earlier to stall the elections. He submits that the petition, therefore, be allowed as this is a fit case for interference by this Court in its jurisdiction under Article 226 and 227 of the Constitution of India. A case is made out to quash and set aside the impugned order because it is vitiated by an apparent error and the Dy.Charity Commissioner has exceeded his jurisdiction while issuing the impugned directions. 18. Mrs.Agarwal, learned Counsel appearing in 19 support of W.P. No.878 of 2006 has adopted the submissions of Mr.Thorat and additionally she contends that this is the action of the trustees. The trustees are empowered to decide in accordance with the scheme, about enrolment of members. She also submitted that the affidavit of the Trustee filed in W.P.878 of 2006 would demonstrate that even while framing election programme Dy.Charity Commissioner and the Inspector appointed in his office have purported to prepone the date of publication of the final list of contesting candidates. There is a foot note below the communication dated 15th February 2006. She has submitted that in the light of the developments in this Court while hearing these petitions. on earlier occasions, election programme is chalked out by the Trustees as set out in the C.A. For all these reasons, she prays that the order of the Dy.Charity Commissioner be set aside. 20 19. Mr.Anturkar, learned Counsel appearing for respondent No.13 in W.P.9133 of 2005 has supported the order passed by the Dy.Charity Commissioner. He submits that the term of Trustees (first Board) is for a period of five years from the date of the order of sanctioning the scheme, in other words from 6th April 2000. If the order is communicated on 29th April 2000 to the Trustees, then at the most, the period of five years, would commence from that date. However, he submits that the crucial question as to whether they have assumed charge and started functioning as contended with effect from 5th June 2000 or from the above date has to be decided in the light of the clause of the scheme. He submits that the period expires as above at the end of April 2005 and the purported resolution dated 2nd May 2005 is beyond the period of five years. It is, therefore, beyond the power and authority of the first Board of Trustees. 21 20. He submits that respondent No.13 is expelled by the Trustees from 12th June 2005 which also is beyond stipulated period of five years. He submits that this resolution is bad in law, even on the own showing of the petitioners, because the Trustees having assumed office on 5th June 2000, the period expired on 5th June 2005 and this Resolution is, therefore, unsustainable. The first board of trustee cannot expel respondent No.13 who is already a member. In any event, they have no authority to do so. Mr.Anturkar has taken me through the proceedings under Section 41D and has contended that the expulsion of respondent No.13 on the grounds which have not been accepted in earlier adjudication is patently erroneous. 21. He submits that the crucial issue is with regard to the jurisdiction of the Charity Commissioner. He submits that petitioners as 22 well as trustees cannot be allowed now to challenge the jurisdiction of Charity Commissioner. He submits that even in memo of writ petition, there is no ground with regard to jurisdiction of the Charity Commissioner. He submits that the Division Bench order having gained finality, it cannot be argued now that in terms of that order the matter could have gone only to the Charity Commissioner and not to the Dy.Charity Commissioner. In any event, he submits that allowing now the issue of jurisdiction to be raised would cause great prejudice to respondent No.13. Mr.Anturkar has invited my attention to section 8 of the B.P.T. Act. In his submission, issue of jurisdiction as also about the ambit and scope of section 48A is misconceived because, according to Mr.Anturkar, this provision will have to be read with Clause 21(3)(e) of the Scheme. There is a presumption that the Charity Commissioner is exercising powers through the Deputy or Assistant Charity 23 Commissioner. In any event, in the scheme, Assistant or Dy.Charity Commissioner has retained his power. It is the authority designated for the purpose of verification and scrutiny of the applications for membership. He submits that issue of jurisdiction cannot be raised as the petitioners had challenged the initial order dated 24th June 2005 by filing an appeal before Joint Charity Commissioner. Thus, it is the Assistant/ Dy.Charity Commissioner who is intended to be the authority even in the Division Bench order of this Court. 22. Mr.Anturkar has then contended that petitioners has acqueised in the jurisdiction of Dy.Charity Commissioner as they themselves have gone to him with a request that 64 persons be enrolled as members. He has invited my attention to para 17 at page 16 of W.P.9133/05 and para 18 page 17 of the same in support of his submissions. On merits Mr.Anturkar has invited 24 my attention to the scheme and page 17 of the Compilation of documents tendered by him. He submits that in the application for, modification of the scheme, made on 7th April 2001, the Trustees have themselves contended that they have been appointed on 6th April 2000. They know that the period commences from that date. Thus, it is now not open for them to contend that the period of five years should be taken to have commenced from the date of assumption of offence. He submits that period of three years commences from 6th April 2000 and no policy decision can be taken after 6th April 2005. He submits that advertisement and the Resolution at page 80-81 are clearly beyond the term of trustees. Enrolment is a policy decision. He submits that it was plain duty of the Trustees to commence the electoral process. They were obliged to do so with effect from 5th January 2005. He submits that the reason, that there is dearth of Graduates in Junnar Taluka or that they are 25 contributing Rs.7000/- each is of no relevance. That will not enable the trustees to take any decision of enrolment of members. More so, when their term came to an end. Mr.Anturkar has invited my attention to the order passed by the Dy.Charity Commissioner and submitted that the issue of authority of the Trustees was specifically argued and decided. He submits that the membership could be without voting rights as well. He submits that the issue of prejudice does not arise because in this election, the members, 64 in number would not get voting rights. He submits that the elections are now going to be held only for 8 posts even by the programme of the Trustees. He submits that considering the rival contentions and keeping in mind the interest of the Trust, the Dy.Charity Commissioner thought it fit that some independent person should hold elections and, therefore, the decision to appoint Election Officer does not require any interference. Mr.Anturkar has relied 26 upon an order passed in C.A.854 of 1999 in F.A.110 of 1999 and pointed out that respondent No.13 has not been removed but he has tendered resignation. Therefore, his membership rights are not, in any manner, affected and could not have been taken away. In any event, Mr.Anturkar submits that this is not a case where it may be said that Dy.Charity Commissioner has exceeded his jurisdiction or that the order is vitiated by any error apparent or perversity so as to be interfered in writ jurisdiction. 22. In the light of the rival contentions, the only question that falls for my determination is whether the order of the Dy.Charity Commissioner dated 29th November 2005 is vitiated and that determination will have to be in the light of the admitted facts and rival contentions. 23. For appreciating them, it is necessary to 27 refer to the order passed and the directions issued in it. Firstly, the Dy.Charity Commissioner re-affirms, re-confirms and maintains his earlier order passed in Misc.Application No.63 of 2005 on 24th June 2005. According to him, the petitioners never acquired the status of members or right to membership. In the light of this, he directs his office Superintendent to prepare final list of members for participation in the forthcoming elections and that is from serial No.1 to 184 by accommodating and deleting Serial No.8 and deceased members at Sr.Nos.6, 24, 44 and 104. These names are taken by him from the list which is submitted for his approval by the Trust. He also includes subsisting and surviving members from those 90 which are found to be enrolled long before formation of the scheme by Inspector in Enquiry No.55 of 2005. He sets aside the resolution dated 12th June 2005 cancelling membership of respondent No.13 by declaring that 28 the same is illegal and beyond the scope and authority of present Trustees. Thereafter, he allows application Exh.31 for appointment of election officer. 24. The above directions are issued by him, after he concludes that there is no merit in the contentions of petitioners that Trust was benefited with their membership fees and that they were not served with any notice before dis-approving their membership by a judgement