High Court
Legal Reasoning
WP-1679-2022.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 1679 OF 2022 WITHCIVIL APPLICATION NO. 11494 OF 2022WITH CIVIL APPLICATION NO. 11163 OF 2023WITH CIVIL APPLICATION NO. 11857 OF 2024Raosaheb Haribhau Bhosale And OthersVERSUSShivaji Baburao Shinde And OthersWITHWRIT PETITION NO. 14871 OF 2021Kalyan S/o Shripati Sawant And AnotherVERSUSShivajirao S/o Baburao Shinde And Others***• Mr. V. D. Sapkal, Senior Advocate i/by Ms. S. T.Jadhav, Advocate for the Petitioners in bothPetitions• Mr. N. L. Jadhav, Advocate for Respondent No. 1• Mr. N. P. Patil Jamlpurkar, Advocate for RespondentNo. 2 in WP/1679/2022• Mr. R. C. Bramhankar, Advocate for Respondent No. 2 inWP/14871/2021 & for Respondent No. 3 in WP/1679/2022• Mr. D. J. Choudhari, Advocate for Respondent No. 4• Mr. d. B. Bhange, AGP for the Respondent Nos. 5 to7/State***CORAM:R. M. JOSHI, JRESERVED ON:MARCH 28, 2025PRONOUNCED ON:APRIL 07, 2025ORDER:1.These Petitions take exception to the orderdated 04.03.2016 passed by the Assistant CharityCommissioner, Beed (for short ‘ACC’) in MiscellaneousUmeshPAGE 1 OF 22 WP-1679-2022.odtEnquiry No. 924/2019 and order passed by the JointCharity Commissioner, Latur (for short ‘JCC’) dated04.04.2019 in an application filed under Section 47 ofthe Maharashtra Public Trusts Act, 1950 (for short ‘theAct’) being Enquiry No. 44/2016 and order dated10.01.2022 passed in Revision Application No. 69/2021taking exception to the order dated 04.03.2016 passedby the ACC.2.The parties herein have checkered history ofenormous litigation between them in respect ofachieving control over Shri. Bankat Swami ShikshanSanstha Khadki Ghat, Tq and Dist. Beed (for short ‘theTrust’), a public trust registered under the provisionsof the Act. Without getting into the details in respectof previous proceedings, it would be necessary to takenote of certain relevant proceedings and orders passedtherein in order to appreciate the submissions of rivalsides.3.From dispute arising out of the proceedingsunder Section 41-D of the Act, LPA bearing No. 188/2009came up before the Division Bench of this Court. ThisCourt by order dated 02.08.2014 had issued followingUmeshPAGE 2 OF 22
Decision
WP-1679-2022.odtdirections:[i]LPA stands disposed of withdirections to the Joint CharityCommissioner to decide the pendingproceedings under Section 41-D of theAct, expeditiously, and preferablywithin nine months.[ii] Interim orders passed in the LPA andthe writ petitions/civil applicationsshall be continued till the disposalof the proceedings under Section 41-Dof the Act.[iii]The concerned Assistant CharityCommissioner shall verify theveracity of the list of members andthen shall take further steps to holdelections of Bankatswami ShikshanSanstha, Khadki Ghat, Taluka &District Beed, expeditiously, afterconsidering the objections to thesaid list, if any.[iv] The list of members is filed by theappellant in LPA. Said list besubmitted to the Assistant CharityCommissioner, Beed, within a periodof 3 weeks from today. The respectiveparties are entitled to file theirobjections, if any. After consideringthe said objection, the AssistantCharity Commissioner shall decide theabout the validity of members, withinsix months and take steps to hold theelections of the trust. [v] Writ petition No. 10170 of 2012stands disposed of. All civilUmeshPAGE 3 OF 22 WP-1679-2022.odtapplications stand disposed of.Thus, this Court has issued directions to theACC to verify the veracity of list of members anddirection was given to take further steps to holdelections of the Trust after considering the objectionto the said list. Pursuant to the said directions,Miscellaneous Enquiry No. 924/2014 came to beundertaken by ACC. Both sides appeared before the saidAuthority. ACC by order dated 04.03.2016 has held asunder:1. Only 8 members are valid.2. The objection petitioners are directed thatA)After seeking permission from competentauthority, enroll the new members fromthe interested persons of the trust.B)By appointing election officer, electionbe conducted from the valid members ofthe trust within two months and file therespective change before this authoritywithin stipulated period.3. No order as to costs.4. Entries be made in schedule 1 accordingly.ACC, therefore, has held that there are only 8valid members of the Trust. There is a finding recordedin paragraph 21 of the said order to the effect that asUmeshPAGE 4 OF 22 WP-1679-2022.odtper the scheme of the Trust, the managing trusteesconsist 9 members and as 4 members are suspended, it isnot possible to hold elections with 4 valid membersonly unless the enrollment of new members of the Trustis done. In the light of these observations, furtherdirection was issued to seek appropriate permissionfrom the competent Authority for enrollment of newmembers from the interested persons of the Trust.Consequently direction was given for appointingElection Officer and election to be conducted from thevalid members of the Trust. 4.This order passed by the ACC was challengedbefore the JCC by filing Revision Application No.69/2021. Respondent therein raised objection withregard to the maintainability of the Revision againstthe order impugned. JCC framed preliminary issue withregard to the maintainability of the said applicationby order dated 21.12.2021. The parties were heard onthis preliminary issue. This Authority by order dated10.01.2022 rejected the Revision Application by holdingthat the same is not maintainable under the provisionof Section 70-A of the Act. The said authority recordedUmeshPAGE 5 OF 22 WP-1679-2022.odtthe finding to arrive at the said conclusion byreferring to provisions of Section 70-A of the Act,which contemplates maintainability of the Revisionagainst the orders passed under Sections 20, 22, 22A,28, 30A, 50A and 54 of the Act. It was held that theorder passed by ACC dated 04.03.2016 is not an order ascontemplated by Section 22A of the Act. With thesefindings, Revision Application came to be dismissed.5.In this Petition, Petitioner is takingexception not only to the order passed by RevisionalAuthority but also in case this Court comes to theconclusion that the Revision is not maintainable, theorder dated 04.03.2016 passed in Miscellaneous EnquiryNo. 924/2019 is assailed in this Petition. Similarly,exception is taken to the order passed by the JCC inMiscellaneous Application No. 44/2016 filed pursuant tothe order dated 04.03.2016 passed by ACC for seekingpermission to enroll new trustees by invoking theprovision of Section 47 of the Act.6.Heard learned Counsels for both sides.Carefully considered the submissions as well as thecase-laws cited.UmeshPAGE 6 OF 22 WP-1679-2022.odt7.At the outset, this Court would like to dealwith the challenge to the order dated 10.01.2022 passedby the JCC in Revision Application No. 69/2021. Thisproceeding is filed under Section 70-A of the Act. Thepower of revision is statutorily provided in the Actand Section 70-A indicates that the said power ofRevision can be exercised only in respect of the ordersas covered by Section 70 of the Act. Thus, in order tomaintain a revision against any order, said order mustbe finding and order under Sections 20, 22, 22A, 28,30A, 50A and 54 of the Act and similarly, order underSection 41-E, 50-A, 54, 79(1) and 79-AA of the Act.Thus, in order to maintain a revision, the order passedby the ACC in Miscellaneous Enquiry No. 924/2019 mustbe any of these orders and no other order.8.It would be relevant to consider the backdropin which Miscellaneous Enquiry No. 924/2019 came to beinitiated. There is no denial of the fact that underthe provisions of the Act, there is no separate enquirycontemplated for determining the status of amember/membership of the Trust. Here in this case,however, Division Bench of this Court in its discretionUmeshPAGE 7 OF 22 WP-1679-2022.odtby order dated 02.08.2014 considering the peculiarityof the facts of the case has issued directions to theACC to determine the validity of the membership of theTrust. This order has not been taken exception to byany party, as such it has attained finality. The same,therefore, is binding on all concerned.9.It is thus clear that the MiscellaneousEnquiry No. 924/2019 came to be initiated on the basisof directions issued by this Court and not oninvocation of any provisions under the Act. Apart fromthis, perusal of the provisions of the Section 20, 22,22A, 28, 30A, 50A and 54 of the Act indicate thatexcept for Section 22A, the exercise done by ACC cannever be said to have been covered by these provisions.10.It is, therefore, necessary to take intoconsideration the provisions of Section 22-A of theAct, which reads thus:22A - Further inquiry by Deputy orAssistant Charity CommissionerIf at any time after the entries are madein the register under section 21, 22 or 28it appears to the Deputy or AssistantCharity Commissioner that any particularrelating to any public trust, which was notUmeshPAGE 8 OF 22 WP-1679-2022.odtthe subject-matter of the inquiry undersection 19, or sub-section (3) of section22 or section 28, as the case may be, hasremained to be enquired into, the Deputy orAssistant Charity Commissioner, as the casemay be, may make, further inquiry in theprescribed manner, record his findings andmake entries in the register in accordancewith the decision arrived at or if appealsor applications are made as provided bythis Act, in accordance with the decisionof the competent authority provided by thisAct. The provisions of sections 19, 20, 21and 22 shall, so far as may be, apply tothe inquiry, the recording of findings andthe making of entries in the register underthis section.A bare perusal of this provision indicatesthat the pre-condition for exercise of the powers underthis Section is that any particular fact relating topublic trust have been remained to be enquired into,then it must be enquired. It is thus clear thatprovision of Section 22-A cannot be invoked as aoriginal jurisdiction. Thus, by no stretch ofimagination it can be said that the order passed by ACCin Miscellaneous Enquiry No. 924/2019 is an ordercovered by Sections 70 or 70A of the Act. The Revisionfiled before the JCC against this order, therefore, wasnot tenable and hence, JCC has rightly rejected theUmeshPAGE 9 OF 22 WP-1679-2022.odtsame. This Court, therefore, finds no reason to causeinterference in the order dated 10.01.2022 passed inRevision Application No. 69/2021.11.Since it is held that Revision is notmaintainable, so also in view of the provision ofSection 70 of the Act even no appeal would lie againstthe order passed by the ACC in Miscellaneous EnquiryNo. 924/2019, the only remedy available for the partyaggrieved by said order is to challenge the same inWrit Petition before this Court. The Writ Petitions,therefore, are entertained in order to considerchallenge to the said order.12.As recorded earlier, the ACC was directed bythe Division Bench of this Court to verify the veracityof the list of members and then shall take furthersteps to hold elections of the Trust. The onlyrequirement for the ACC before ascertaining thevalidity of the membership was that an opportunity wasto be given to the parties and objection to the saidlist, if any, were to be considered. There is nodispute about the fact that the ACC has taken intoconsideration the entire relevant record and has dealtUmeshPAGE 10 OF 22 WP-1679-2022.odtwith the same minutely.13.It is sought to be argued on behalf ofPetitioner that it was not open for the ACC todisqualify the members who were appointed at the timeof registration of the Trust. This submission sansmerit in view of the order passed by the DivisionBench. The Division Bench in no uncertain terms hasissued direction to ACC to verify the veracity of thelist of members and then to hold election. Thisdirection would not have permitted ACC to exclude anymember from verification thereof. Since the Petitionernor any party had challenged the said order beforeSupreme Court, the parties are bound by the said order.Thus, it is now cannot be permitted to be said that themembership of the originally enrolled members could nothave been gone by the ACC. Coming back to the orderpassed by ACC, perusal of the said order indicates thatACC has not only taken into consideration the scheme ofthe Trust but also has dealt with the resolutionspassed for the purpose of enrollment of the membersfrom time to time. The order in detail deals with eachsuch meeting and resolution and membership of eachUmeshPAGE 11 OF 22 WP-1679-2022.odtperson. Petitioners were not in position to point outthat findings recorded by the ACC are contrary to thematerial placed before him. This Court in exercise ofwrit jurisdiction, in absence of any perversity beingshown in respect of said findings, finds that nointerference is called therein.14.Exception was also taken to the order impugnedpassed by ACC with regard to the direction ofappointment of Election Officer and conducting ofelection. This is said to be contrary to the orderpassed by the Division Bench. At the cost of repetitionif the order of Division Bench is considered, thenClause 3 of the operative part indicates that adirection was given to the ACC to take further steps tohold election. This direction cannot be constructed asconducting election by ACC himself. This Court,therefore, finds no substance in the contention ofPetitioner in this regard.15.In so far as the direction issued by the ACCfor moving the concerned authority for enrollment ofthe new member from the interested persons of the trustis concerned, paragraphs 20 and 21 deals with the issueUmeshPAGE 12 OF 22 WP-1679-2022.odtand records findings thereon. The said observations arereproduced for ready reference as under:20.From the perusal of the record, itreveals that, out of 8 valid members, themembers namely Shree Raosaheb HaribhauBhosle, Kundalik Ramrao Bhosle, RamdasHaribhau Khose, Ashok Rambhau Bhosle aresuspended by the Honourable Joint CharityCommissioner, Latur by order dated02/07/2009 and their suspension isconfirmed by the Honourable High Court inW.P. No.4971/2009 by order dated04/09/2009. As well as the Honourable HighCourt passed order in Civil ApplicationNo.9986/2009 in LPA No.188/2009 on30/09/2009 as "in the meantime parties tomaintain status quo as on today", so alsoHonourable High Court has passed an orderin Civil Application No. 12179/2009, on22/01/2010 as we are of the clear view thatas the present applicant has been appointedas a fit person for the management of thetrust, he would be not only a proper partybut also a necessary party". As well as theHonourable High Court has passed the orderon 2/8/2014 in the above LPA and otherCivil proceedings in para no.2, as "interimorders have been passed from time to timeand interim arrangements are made", fromwhich it is clear that the fit person whichis appointed by the Honourable JointCharity Commissioner Latur is actuallyadministering the management of the trust,hence though the present applicant no.1 to4 are valid members of the trust, they haveno concern with the management of the trusttill the final proceeding under section 41-UmeshPAGE 13 OF 22 WP-1679-2022.odtD of the BPT Act, 1950 which is pendingbefore the Honourable Joint CharityCommissioner. Latur. So also it revealsfrom the record that the members namelyAmit Laxman Bhosle and Dr. Prakash EknathBhosle are shown as trustees in theschedule 1 who are not suspended by theJoint Charity Commissioner, Latur but asper the above reasoning these members arenot valid members of the trust eventhoughtheir name shown in the schedule 1 of thetrust, hence these persons are also notconcerned with the management of the trust.21. The Honourable High Court has directedto this authority for taking steps inrespect of holding the election to thetrust, therefore, from the above facts itseems that, there are only 4 valid membersto the trust who can take steps to hold theelection of the trust. From theobservations of the bye laws of the schemeof the trust, it shows that the managingcommittee of the trust consists of 9members, therefore, I am of the view thatthe election of the trust is not possiblefrom 4 valid members of the trust unlessenrollment of new members to the trust.Hence I am of the opinion that to completethe quorum of the managing committee byholding the election, it is required toenroll the new members from the interestedpersons of the trust. Hence, I have come tothe conclusion that, for conducting theelection it is necessary to issue thedirection to the objection petitioners forseeking the permission from the competentauthority to enroll the new members fromthe interested persons of the trust andUmeshPAGE 14 OF 22 WP-1679-2022.odtthen by appointing election officer, theelection process be performed with a viewthat the new managing committee will comeinto existence to manage the administrationof the trust.16.In order to ascertain whether the saidfindings are in consonance with the scheme, it would benecessary to take note of provision with regard to theExecutive Committee of the Trust. Clause Nos. 15 and 16of the scheme reads thus:15- dk;Zdkjh eaMGkph jpuk% dk;Zdkjh eaMG 9 t.kaps jkghy R;ke/;s v/;{k] mik/;{k] lfpo] lglfpo] dks”kk/;{k] o 4 lHkklnjkgrhy-16- dk;Zdkjh eaMGkph fuoM % dk;Zdkjh eaMGkP;k 9 lHkklnkaphfuoM nj 5 o”kkZauh loZlk/kkj.k lHkse/;s gksbZy- fuoMw.k vkysyslHkkln vkiY;ke/kwu inkf/kdkjh fuoMrhy-17.This indicates that there cannot be ExecutiveCommittee of the trust but for 9 members. Once ACC hasheld that there are only 8 valid members, necessity hasarisen for appointment of the minimum required numberof members in this regard. Here, however, this Courtwould like to take note of subsequent events occurredafter order passed by ACC, which is reflected from theorder dated 04.04.2019 passed in Enquiry No. 44/2016.The relevant portion of the said order is reproduced asUmeshPAGE 15 OF 22 WP-1679-2022.odtunder:12)Learned counsel for the respondentsfurther argued that the previous enquiryapplication filed at applicant No.1 undersection 47 of the said Act bearingNo.40/2016 is withdrawn and enquiryNo.7/2009 filed under section 41-D of thesaid Act filed against the respondents isdismissed and no any trustee is suspended.It is true to say that applicationNo.40/2016 is withdrawn and it is disposedof by this authority on 15.02.2019. It isneedless to say that enquiry No.7/2009under section 41-D of the said Act is alsodismissed by this authority by judgmentdated 07.01.2019 and temporary suspensionorder dated 02.07.2009 passed against someof the respondents is vacated. That means,the respondents, who were trustees of thetrust, are still members of the trust andit is not safely said that there is no anybody to look after the day to day affairsof the trust though the issue of membershipis still pending and under adjudication.Therefore, this argument also cannot beignored here.18.This indicates that the issue of suspension of4 members, which was subjudice at the relevant time, isno more an issue in view of the dismissal of theproceeding under Section 41-D of the Act or withdrawalthereof. Suffice it to say that after the order passedby ACC instead of 4 valid members available forUmeshPAGE 16 OF 22 WP-1679-2022.odtconducting elections, 8 valid members for conductingelections needs to be considered. Thus, in any case thetotal required membership fall short by at least 1member. In the light of these facts, it is necessary toconsider the order passed by JCC in proceedings underSection 47 of the Act being Enquiry No. 44/2016.19.In Enquiry No. 44/2016 the contestingRespondents therein had moved an application fordismissal of the proceedings. JCC, by order passedbelow Exh. 1 and 42 dated 04.04.2019, dismissed theapplication. It is held by JCC that Section 47 of theAct is not a proper remedy for appointment of theTrustees. Similarly, it is held that Section 47provides for powers of Charity Commissioner to appointnew Trustees in the eventuality those are provided inSection 47. At this stage, it is necessary to take noteof Section 47, which reads thus:Section 47 - Power of Charity Commissionerto appoint, suspend, remove or dischargetrustees and to vest property to newtrustees(1) Any person interested in a public trustmay apply to the Charity Commissioner forthe appointment of a new trustee, wherethere is no trustee for such trust or theUmeshPAGE 17 OF 22 WP-1679-2022.odttrust cannot be administered until thevacancy is filled, or for the suspension,removal or discharge of a trustee, when atrustee of such trust,-(a) disclaims or dies;(b) is for a continuous period of sixmonths absent from India without theleave of the Charity Commissioner or theDeputy or Assistant Charity Commissioneror the officer authorised by the StateGovernment in this behalf;(c) leaves India for the purpose ofresiding abroad;(d) is declared as insolvent;(e) desires to be discharged from thetrust;(f) refuses to act as a trustee;(g) becomes in the opinion of theCharity Commissioner unfit or physicallyincapable to act in the trust or acceptsa position which is inconsistent withhis position as trustee;(h) in any of the cases mentioned inChapter III, is not available toadminister the trust; or(i) is convicted of an offencepunishable under this Act or an offenceinvolving moral turpitude.(2) The Charity Commissioner may, afterhearing the parties and making such enquiryas he may deem fit, by order appoint anyperson as a trustee or may also remove ordischarge any trustee for any of thereasons specified in sub-section (1).(3) In appointing a trustee under sub-UmeshPAGE 18 OF 22 WP-1679-2022.odtsection (2), the Charity Commissioner shallhave regard--(a) to the wishes of the author of thattrust;(b) to the wishes of the persons, ifany, empowered to appoint a new trustee;(c) to the question whether theappointment will promote or impede theexecution of the trust;(d) to the interest of the public or thesection of the public who have interestin the trust; and(e) to the custom and usage of thetrust.(4) It shall be lawful for the CharityCommissioner upon making any orderappointing a new trustee under sub-section(2) either by the same or by any subsequentorder to direct that any property subjectto the trust shall vest in the person soappointed and thereupon it shall so vest.(5) An appeal shall lie to the Courtagainst the order of Charity Commissionerunder sub-section (2), as if such order wasa decree of a district court as a court oforiginal jurisdiction from which an appeallies, within sixty days from the date ofthe order, which shall otherwise be final.20.This provision is an independent provisionwhich is not subject to any other provision. Purposebehind enacting the said provision is to ensure thatthe Trust is not allowed to go without beingadministered. Similarly, in order to exercise the saidUmeshPAGE 19 OF 22 WP-1679-2022.odtpowers, any person interested in a public trust mayapply to the Charity Commissioner for appointment of anew Trust. Said application can be entertained in casewhere there is no trustees for such trust or the trustcannot be administered until vacancy is filled. Thisprovision, therefore, enables the Charity Commissionerto appoint new trustees once it is brought to thenotice of the Charity Commissioner that trust cannot beadministered where there is no trustees or until thevacancy is filled.21.As observed herein above, the scheme of thetrust indicates that there needs minimum 9 members inorder to constitute a valid Executive Committee of theTrust which can manage affairs thereof. ACC has heldthat there are only 8 valid members. Though at therelevant time 4 member were suspended and, therefore,only 4 members were available for conduct of elections,but now there is no impediment for those 4 suspendedmembers to participate in the elections in view ofdismissal/withdrawal of proceedings under Section 41-Dof the Act. Thus, question now remains as to whether 8members can administer the trust. Clauses 15 and 16 ofUmeshPAGE 20 OF 22 WP-1679-2022.odtthe Trust requires 9 members and as said number fallsshort by 1, the said contingency is covered by Section47 of the Act.22.JCC while passing the order dated 04.04.2019has failed to take into consideration the said aspectand has proceeded to hold that filing an applicationunder Section 47 of the Act is not a proper remedy forappointment of new trustees. This order is passed alsowith observations that the Authority himself canappoint new trustees and no permission can be grantedto appoint trustees. Once an application was moved byperson interested and it is brought to the notice ofthe Charity Commissioner that appointment of the newtrustees is necessary without which trust cannot beadministered, it is obligatory on the part of theCharity Commissioner to make such appointment inaccordance with law. Thus, the order passed by the JCCdated 04.04.2019 in Enquiry No. 44/2016 is notsustainable.23.As a result of above discussion, followingorder is passed:UmeshPAGE 21 OF 22 WP-1679-2022.odtO R D E Ra)Petitions stand partly allowed.b)Orders dated 04.03.2016 passed inMiscellaneous Enquiry No. 924/2019 passedby ACC as well as order passed by JCC inRevision Application No. 69/2021 dated10.01.2022 stand confirmed. c)Order dated 04.04.2019 passed in EnquiryNo. 44/2016 by JCC is set aside. Proceedingof Enquiry No. 44/2016 is relegated back toJCC for appointment of new Trustees inaccordance with law.d)Considering the long pendency of dispute,JCC is directed to decide the said enquirywithin a period of three months from today.e)Pending civil application(s), if any, standdisposed of. (R. M. JOSHI, J.) UmeshPAGE 22 OF 22