Hidayatkhan Bismillakhan Pathan vs Vaijnath & Ors

2. Marathwada Sarvodya Shikshan Prasarak Mandal is a public Trust registered under the Bombay Public Trust Act, 1950 (hereinafter called, for the sake of brevity, `the Act') as also the Societies Registration Act, 1850. Its office is situated at Partur, District Jalna in the State of Maharashtra. It was created inter alia for the purpose of imparting education to the children of the rural area. The constitution of the Trust provides for 15 life members 1 out of which 13 would be the ex-officio members of the Executive Committee and the other two would be the co-opted members from amongst the General Members elected by the majority of the life members of the Executive Committee which is an elected body. The tenure of the elected body is five years. Members of the Managing Committee were elected in an election held on 30th June, 1996. However, before expiry of its term of five years, respondent No.1 submitted his resignation on 31st December, 1999. A change report to that effect was filed and approved by the competent authority under the Act.

3. Fresh elections took place on or about 26th June, 2001. The term of the said Committee expired in 2006. Again elections were held in the year 2006. However, after the elections were held in 2001, a change report had been submitted. It was accepted by the Assistant Charity Commissioner, Jalna on 5th August, 2002. It is stated that about 82 meetings were held thereafter and the first respondent participated in almost all of them. He had, thus, accepted the election of the second respondent, Babasaheb Akat, as the President of the Trust.

4. Disputes and differences allegedly arose between the first respondent and the second respondent in October, 2003.

Respondent No.1 filed a revision petition before the Joint Charity Commissioner questioning the validity of the elections held in 2001. The Joint Charity Commissioner by its judgment dated 4th June, 2004 opined that the revision application filed by the first respondent was barred by limitation but despite the same proceeded to initiate a purported suo moto proceeding under Section 70-A of the Act. The revision application was allowed inter alia observing that the notice dated 26th June, 2001 calling for the meeting had not been issued as per the by-laws of the society and, thus, the business conducted in that meeting on the basis of such defective notice cannot be said to be legal and valid and in that view of the matter office-bearers had also not been elected validly. It was concluded :-

The order impugned before him, however, was set aside pointing out the aforesaid irregularities.

We may place on record that as the first respondent had approached the revisional authority with a `false case', costs were imposed on him.

5. Aggrieved by and dissatisfied therewith, the second respondent filed an application before the District Judge, Jalna. The learned District Judge by his order dated 28th June, 2004 allowed the said application in part and remanded the matter back to the Joint Charity Commissioner with a direction that all the trustees and co-opted members of the Trust be given notice and fresh enquiry under Section 70A of the Act be held and a fresh decision be rendered.

1. The Misc. Application No. 27/2006 and Misc. Application No.42/20006 are hereby allowed with costs.

We allow the application of transposition.

22. If in the aforementioned situation, the learned District Judge had taken a different view having regard to the manner in which the Joint Commissioner has exercised its suo moto jurisdiction, namely in stead and place of making an enquiry himself remanded the matter back to the Assistant Charity Commissioner, no illegality can be said to have committed by him. Furthermore in view of the subsequent events which had taken 14 place, namely holding of the election in the year 2006, we are of the opinion that he cannot be said to have committed an error in passing the said order. Even respondent No.1 should not have been allowed to prefer an appeal. Appeal having been dismissed by the Joint Charity Commissioner no further appeal, at his instance, before the High Court should have been entertained.

23. No notice admittedly had been issued to a large number of persons including respondent Nos. 10 & 20 who have been transposed to the category of the appellants. There is no legal foundation that respondent No.20, being the wife of respondent No. 2 cannot be directed to be transposed to the category of the appellant, admittedly she was not represented before the High Court in the second appeal. The order of the High Court, therefore, is liable to be set aside.

24. Although ordinarily we would have remanded the matter back to the High Court, we clarify that that we have exercised our jurisdiction under Article 136 read with Article 142 of the Constitution of India, keeping in view the peculiar facts and circumstances of the case so as to do complete justice between the parties as also in view of the fact that any further litigation would be unnecessary since no actual relief can be granted to any of the parties thereto in this case.

25. For the reasons aforementioned the impugned judgment is set aside. The appeal is allowed. No Costs.