Bhiwandi Weavers Education Society & Ors. v. The State of Maharashtra & Ors.

Judgment

1. The petitioners by filing this writ petition under Article 227 of the Constitution of India challenge the order dated 3rd January 2011 passed by the District Judge-II, Thane below Application at Exhibit-40 in Civil Miscellaneous Appeal No.91 of 2010. The said application was taken out for declaration that election held by the Assistant Charity Commissioner is null and void and injunction is sought against the respondents restraining them from taking charge of the petitioner no.1 Trust and further injunction is claimed against newly elected body restraining them from entering into office . This application was rejected.

2. The Petitioners got elected as members of the managing committee of petitioner no.1 in pursuance of the order passed by -: 2 :- wp-935/11 the District Judge in Miscellaneous Application No.48 of 2008. The petitioner thereafter filed Change Report No.559 of 2008. Change Report was accepted by the Assistant Charity Commissioner [for short “ACC”]. Most of the respondents thereafter preferred an appeal challenging the acceptance of Change Report, being Appeal No. 29 of 2009 before the Joint Charity Commissioner [for short “JtCC”] and JtCC by his order dated 13/4/2010 allowed the same. Change Report No. 559 of 2008 was quashed and set aside. ACC was directed to take fresh elections after following directions of the District Judge, Thane in Civil Application No.48 of 2007 within a period of 3 months from the date of compunction of order to the

ACC. This order was challenged by the petitioner by filing Miscellaneous Application No. 91 of 2010 before the District Judge. The application for stay to the order of JtCC was also filed. The District Judge-IV by his order dated 26/4/2010 granted interim stay to the direction at Serial Nos.(ii) & (v) till 30/4/2010. The interim order was extended subsequently by order dated 30/4/2010 till filing of say by the Respondents.

3. It is the contention of Mr. Mhatre, learned counsel appearing on behalf of the petitioners that all the respondents subsequent to 30/4/2010 have not filed their say and therefore order of status quo stands extended from time to time and despite of this position -: 3 :- wp-935/11 the learned Assistant Charity Commissioner held the elections to managing Committee of petitioner no.1-Trust on 21st September

2010. His contention is that the election which was held when the interim order was in operation, were illegal and therefore the application mentioned above was taken out before the District Court.

4. Mr. Zal Andhyarujina, learned counsel appearing on behalf of respondent no.3, 4 & 5 does not dispute that initially interim order was passed by the District Judge-IV on 26.4.2010 whereby the interim stay was granted to the directions contained in clauses (iii) & (v) of the order of JtCC. He further does not dispute that by order dated 30.4.2010 the stay was extended till respondents file say. He however pointed out that the matter was subsequently placed on board on 11/6/2010, by that time respondent no.3 had filed say. On that day petitioners filed an application at Exhibit 19. In this application, the petitioners pointed out that respondent no.3 had filed say and therefore request was made for extension of status quo. Mr. Zal Andhyarujina, learned counsel pointed out that learned District Judge by his speaking order extended the status quo till next date. He submitted that next date was 17/6/2010. That day again application for extension of status quo was filed by the petitioner. However, no order was passed. Thereafter -: 4 :- wp-935/11 advocate for the respondent pointed out to the learned Assistant Charity Commissioner that there is no stay on the election and requested to initiate election process and accordingly election process was initiated and election was held on 21/10/2010.

5. I have perused the order dated 26/4/2010 passed by the District Judge below Exhibit-5 in Miscellaneous Appeal No.91 of 2010, the order dated 30/4/2010 passed on Application-Exhibit 17 in the aforesaid Miscellaneous Appeal, copy of the application Exhibit 19 alongwith copy of the order passed thereon on

11.6.2010

6. Having heard learned counsel for the respective parties and having tone through compilation of large number of documents, I find no merit in the petition. There is no dispute that initially on 26/4/2011 the District Judge granted stay to the directions contained in clauses (iii) and (v) given by JtCC in his order dated 13/4/2010 till 30/4/2010, and this order was continued till respondents file say. The matter thereafter appeared on board on 11/6/2010. It is clear from the application filed by the petitioners themselves that respondent no.3 had already filed his say on that day and therefore the petitioner requested for extension of status quo. Learned District Judge extended the status quo order till next date. Thereafter, the matter was placed on board on 17/6/2010. -: 5 :- wp-935/11 The petitioners were aware that the status quo order was expiring and therefore they again filed an application for extension of status quo order. However, on that application the District Judge did not extend the status quo order. In these circumstances, I do not think there was anything wrong if the respondents’ advocate filed an application before the Assistant Charity Commissioner and pointed out that there is no interim stay to the order of the Jt. Charity Commissioner and ACC thereafter initiated the election process and concluded the same on 21/9/2010.

7. Respondent nos. 3 to 19 are the elected members of the managing committee of petitioner no.1-Trust. The election was taken by the ACC. The petitioners’ contention seems to be that this election was held in violation of the order passed by the District Judge and therefore application was preferred before the District Judge to quash and set aside the said election. Interim order was also claimed restraining respondent nos.3 to 19 from taking charge or entering into office. It is settled law that elected members cannot be injuncted from discharging their duties. That apart the petitioners challenged the elections of respondent nos. 3 to 19 before the District Judge by filing an application in a proceeding which was initiated under section 72 of the BPT Act. The election of respondents, even assuming for the sake of -: 6 :- wp-935/11 arguments, is illegal, in my view, cannot be challenged before the District Judge in a proceeding under section 72 of the BPT Act. Taking overall view of the facts and circumstances, I find no merit in the petition. No interference is therefore called for. In the circumstances, writ petition is dismissed. (RANJIT MORE, J.)