Writ Petition No. 1433 of 2025 · Bombaybench High Court · 2024
Case Details
Ethape( 1 ) WP-1433-2025IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 1433 OF 2025Vyankatrao S/o. Gangaram Tembhurne,Age: 72 years, Occu: Agril.,R/o. Hatrala, Tq. Mukhed,Dist. Nanded....PETITIONERVERSUS1. Sambhaji s/o. Manikrao Biradar,Age: 64 years, Occu: Pensioner,R/o. Vasantnagar Nanded,Tq. and Dist. Nanded.2. Tulshidas s/o. Vyankatrao Tembhurne,Age: Major years, Occu: Agril,R/o. Hatrala, Tq. Mukhed,Dist. Nanded.3. Saw. Nilawati w/o. Vyankatrao Tembhurne,Age: Major Years, Occu: Household,R/o. Hatrala, Tq. Mukhed,Dist. Nanded. ...RESPONDENTSMr. S. S. Thombre, Advocate for the petitioner.Mr. V. D. Gunale, Advocate for Respondent No.1.Mr. M. S. Karad, Advocate for Respondent Nos. 2 and 3.
Legal Reasoning
Ethape( 12 ) WP-1433-2025meeting. The petitioner raised objections and thereafter, boycotted themeeting requesting to call off the said meeting. It is further stated in theapplication that thereafter, the petitioner and others held anothermeeting on the same day at 04:00 p.m. in the office of the Trust. It hasalso come that, in the said meeting, the Returning Officer was absent.Thus, when it is clear from the application of the petitioner himself that,the meeting was held in absence of the Returning Officer then naturallythere would be a question as to whether the meeting would be said to belegally held meeting at all. When this basic flaw is pointed out, stillDeputy Charity Commissioner did not discuss this aspect. 15.Much is argued on Section 22(2) of the said Act, it is true that thechange report needs to be accepted provisionally as the decision ofchange report takes some time. However, it is not expected to go intodetails, however, certainly every authority acting judiciously is supposedto apply its mind even while considering the case prima facie. Here it isclear that meeting which was held was in absence of Returning Officer,the said meeting thus, in any sense, cannot be said to be meeting when
Arguments
Ethape( 2 ) WP-1433-2025CORAM:KISHORE C. SANT, J.RESERVED ON:12th MARCH 2025PRONOUNCED ON: 9th APRIL 2025PC :-1.Heard Mr. Thombre, the learned Advocate for the Petitioner,Mr. Gunale, The learned Advocate for Respondent No.1 and, Mr. Karad,the learned Advocate for Respondent Nos. 2 and 3.2.A challenge in this petition is to an order dated 7th January 2025passed by the learned Joint Charity Commissioner, Nanded Region,Nanded in Revision Application No.166 of 2024 thereby allowing therevision filed by Respondent No.1. 3.The learned Joint Charity Commissioner by way of impugnedorder, set aside the order dated 2nd August 2024 accepting provisionalchange report, passed by the learned Deputy Charity Commissioner inMisc. Inquiry No.595 of 2024 in Change Report No.583 of 2024. TheDeputy Charity Commissioner was directed to decide the Change ReportNo.583 of 2024 and Change Report No.748 of 2024, on its own merit. Ethape( 3 ) WP-1433-2025The trustees shown on Schedule-01, on that day, were permitted to lookafter day-to-day affairs of the Trust till final disposal of Change ReportNos. 583 of 2024 and 748 of 2024. However, they were directed not totake any policy decision till final disposal of the change report. 4.The facts, in short, giving rise to the present petition, as stated bythe petitioner, are that the petitioner happens to be the President of one,Shri. Chhatrapati Shivaji Shikshan Sanstha, Hatral Tq. MukhedDist.Nanded. The said institution is registered under the provisions ofMaharashtra Public Trusts Act, 1950 (for short “the said Act”). Thepetitioner and Respondent Nos.2 and 3 filed an application underSection 41-A of the said Act, seeking permission to hold the election ofthe Trust by appointing competent person. The learned Deputy CharityCommissioner, Nanded allowed such application and appointed anAdvocate to hold the meeting of Executive Committee of the Trust. 5.When trust was founded, there were only seven members of theExecutive Committee. Presently, only the petitioner and respondentNos.1 to 3 are the members, who are alive. Three members have already Ethape( 4 ) WP-1433-2025expired. Respondent No.1 had filed one Change Report No. 601 of 2022to add one Mr. Abhijit Sambhaji Biradar as a member of the Trust.However, said report was rejected. Mr. Abhijit Biradar is thus, not amember of the Trust. In the year 2024, the election took place and thepetitioner came to be elected as President. The Respondent No.2 waselected as a Secretary and Respondent No.3 was elected as a Treasurer.The post of Vice-president, Joint Secretary and two members werevacant. The Respondent No.1 had filed Change Report under Section 22of the said Act, bearing Change Report No.583 of 2024. In the saidreport, the petitioner filed Misc. Application to provisionally accept theChange Report No.583 of 2024. The said application came to beallowed by provisionally accepting change report by order dated 22ndJuly 2024. 6.It is further case of the petitioner that, the Respondent No.1 alsohad filed Change Report bearing Change Report No.748 of 2024. In thesaid report, wife of Respondent No.1 is shown as President. RespondentNo.1 is shown as Secretary and his son Mr. Abhijit Biradar is shown as a Ethape( 5 ) WP-1433-2025Treasurer. Respondent No.1 filed Revision Application No.166 of 2024and prayed for quashing of order dated 2nd August 2024 provisionallyaccepting the change report of the petitioner. This revision came to beallowed and thus, the petitioner is before this Court. 7.Mr. Thombre, the learned Advocate for the petitioner vehementlyargued that the petitioner was required to file an application underSection 41-A of the Maharashtra Public Trusts Act, seeking direction tohold the election. One Advocate Mr. Keshav Hanmante was directed toconduct the election of the executive committee of the Trust amongst thelegal and valid members of the Trust. The said Advocate issued noticesto conduct the meeting to hold the election. He, therefore, held theelection and declared these petitioners to be elected. It is on this, thechange report came to be filed on 2nd August 2024 whereas, therespondent No.1 filed another Change Report on 20th August 2024. Hesubmits that the learned Deputy Charity Commissioner rightly acceptedthe provisional change report. Earlier change report filed by respondentbearing Change Report No.601 of 2022 was rejected. The revisional Ethape( 6 ) WP-1433-2025authority, however, wrongly allowed the revision by setting aside theprovisional acceptance of the change report of the petitioner. Hesubmits that, the said order is totally illegal and could not have beenpassed. He points out that Mr. Abhijit Biradar, on the date of election,had not completed 21 years of age as per clause 12(c) of the bye-lawsand, he was not eligible to be taken as a member of the trust. He thusprays for setting aside the impugned judgment and order and to confirmthe order accepting provisional report. He submits that, when theprovisional report was accepted, the respondent ought to have filedreply. However, the respondent directly filed a revision. 8.Mr. Thobmre, the learned Advocate for the petitioner, has reliedupon the following Judgments in support of this submissions:-(i) Qidwai Education and Cultural Society Vs. The State ofMaharashtra passed by this Court at Nagpur Bench in WritPetition No.3296-1365-1366 of 2020 on 27th April 2022.(ii)Bapuro Shankar Rathod Vs. The Joint CharityCommissioner, Latur passed by this Court in Writ petitionNo.7949 of 2024 on 2nd August 2024.(iii)Banjara Shikshan Prasarak Mandal Vs. Mukinda Nandu Ethape( 7 ) WP-1433-2025Chavan and Ors. passed by this court in Writ PetitionNo.11141 of 2022 on 14th November 2022.9.Mr. Gunale, the learned Advocate for the Respondent No.1,forcefully argued that the Trust is registered in the year 1989 under theMaharashtra Public Trusts Act, with seven founder members. Out ofseven members, four members have expired. Thus, only three membersare now on the body of the Trust. In view of the constitution of theTrust, at-least seven members are required. In the year 2022, changereport was rejected as the election was held by the committee afterexpiry of the term. The petitioner and Respondent Nos.2 and 3 are fromthe same family. The joint application was made by the petitioner andRespondent Nos. 2 and 3 on 18th March 2024. No notice of the electionwas issued to Respondent No.1, who was Secretary since day one. Therewas no notice issued to Respondent No.1. There was no report of serviceof notice. Order passed was thus ex-parte by the Deputy CharityCommissioner. The Deputy Charity Commissioner allowed the prayerwhich was not made in the application and directed to hold the election. Ethape( 8 ) WP-1433-202510.He submits that on 4th July 2024, the Returning Officer i.e.Advocate Mr. Keshav Hanmante called for a meeting on 20th July 2024for conducting election by giving the program. The election was to beheld in the office of the Trust. Only nomination of the petitioner andRespondent Nos.2 and 3 were held to be valid. It is submitted that, whenthe election officer Mr. Keshav Hanmante was appointed, he himself hasgiven an affidavit that when he went to the office of the Trust, theRespondent No.1 pressurized the said Returning Officer. 25-30 personshad gathered in the premises. They pressurized the Returning Officerand asked him to sign on the paper and expressed inability to furnish thedocuments. It is submitted that, if at all, this was the complaint then thepetitioner should have immediately reported this to the authorities. Thesame is not done. The petitioner mislead the authorities and got theorder. It is in the report itself that the petitioner himself conducted theelection as Returning Officer did not come. He submits that, thus, evenas per theory of the petitioner, no proper election was held and submitsthat, the authority had rightly accepted the revision petition. It issubmitted that, this respondent has no objection to hold fresh election. Ethape( 9 ) WP-1433-2025The learned Advocate for the respondent thus supports the impugnedorder. 11.Mr. Karad, the learned Advocate for the Respondent Nos.2 and 3supports the petition.12.In the case of Qidwai Education and Cultural Society (supra), thisCourt had considered the statement of objects and reasons ofAmendment Act, by which sub-Section (2) is inserted to Section 22 ofthe said Act, providing for provisional acceptance of the report. In thecase of Bapu Shankar Rathod (supra), this Court considered theprovision of Section 22(2) of the said Act. It is held that though no fullfledged inquiry is necessary at this stage, however, an opportunity ofhearing needs to be given to the applicant seeking changes, if necessary.It is held that giving an opportunity of hearing to the respondent is notcontrary to the basic principles of law. In the case of Banjara ShikshanPrasarak Mandal Vs. Mukinda Nandu Chavan and Ors. (supra), theCourt in that case rejected the contention of the parties and held that nospecific application is required to be filed by any of the parties for Ethape( 10 ) WP-1433-2025provisional acceptance of the change report.13.By going through the order of the Deputy Charity Commissioner itis seen that though it was pointed out that the Returning Officer himselfhas stated that he could not held the election in transparent manner.There is no discussion on this, the said order is provisionally acceptingthe report. The provisional acceptance order is passed in mechanicalmanner. The respondent, therefore, had filed revision specifically takingall the grounds. The Revisional Authority has considered that, in anapplication under Section 41-A in Inquiry No.258 of 2024, the DeputyCharity Commissioner herself had directed to hold election. It waspointed out that the Deputy Charity Commissioner considered that themeeting on the basis of which change report is filed by the petitioneritself was not properly held. The petitioner conducted a separatemeeting without direction or permission of the Competent Authority.When the Retuning Officer could not hold the meeting as per allegationsof the petitioner, because of the atmosphere created. It is consideredthat it was open for the petitioner to seek fresh direction for holding Ethape( 11 ) WP-1433-2025separate meeting. It is recorded that, the meeting of the executive bodywas not held on the date in which the election is stated to have takenplace. It is after holding this, the learned Deputy Charity Commissionerset aside the order of provisional acceptance. 14.This Court has seen both the orders, it is sufficiently brought onrecord that the Returning Officer could not hold the meeting as per thedirection of the Deputy Charity Commissioner. From the application bythe petitioner it is clear that he conducted separate meeting for election.When such were the facts, the learned Deputy Charity Commissionerwas required to pass the order with care and caution. The ReturningOfficer did not prepare and publish list of valid voters. Inspite of severalrequest, it was not given to the petitioner. On 20th July 2024, meetingwas started in the office of the Trust where he received message fromthe headmaster of the school that the Advocate Mr. Keshav Hanmantehad come in the office of the school with Respondents and some othersand there meeting is concluded. The petitioner and Respondent nos. 2and 3 went to office where the Returning Officer was holding the
Decision
Ethape( 13 ) WP-1433-2025such thing is apparent on record is must for the authority to considerthis aspect. It cannot be said that Section 22(2) of the said Act,empowers the authorities to accept the report provisionally withoutapplying mind. The power vested by the authority is always required tobe exercised judiciously. This court finds that the learned Deputy CharityCommissioner, in the present case, failed to appreciate the basic aspectand had committed error. The learned Revisional Authority rightlyconsidered this aspect. This Court, therefore, finds that there is noillegality in the order passed by the learned Revisional Authority. Nointerference is, therefore, required in the judgment and order. Hence,the following order: ORDER(i)Writ petition stands dismissed.(ii)No order as to costs.(iii)Pending civil applications, if any, also stands disposed off. [KISHORE C. SANT, J.]