Writ Petition No. 11919 of 2023 · The High Court
Case Details
2024:BHC-AUG:4316 WP 11919/2023 & Anr.1IN THE HIGH COURT AT BOMBAYAPPELLATE SIDE, BENCH AT AURANGABADWRIT PETITION NO. 11919 OF 20231.Sambappa S/o. Trimbakappa Girwalkar,Age 91 years, Occu. Agriculture,R/o. “Shivchhaya”, Beside PanchayatSamiti, Latur, Tq. & Dist. Latur.2.Madhavrao Hanmantrao Patil (Taklikar),Age 61 years, Occu. Agriculture,R/o. Behind Kalikadevi Temple,Old Ausa Road, Latur, Tq. & Dist. Latur.....PetitionersVersus1.The Joint Charity Commissioner,Pune Region, Pune.2.The Deputy Charity Commissioner,Latur Region, Latur.3.Manmathappa S/o. Pandbappa Lokhande,Age 90 years, Occu. Business,R/o. Subhash Chowk, Latur,Tq. & Dist. Latur.4.Shivshankar S/o. Vaijnathappa Khanapure,Age Major, Occu. Pensioner,R/o. Adarsha Colony, Latur,Tq. & Dist. Latur.5.Ashok S/o. Sharnappa Upase,Age Major, Occu. Agriculture,R/o. Pochamma Galli, Latur,Tq. & Dist. Latur.6.Vijay S/o. Nagnathappa Revadkar,Age 58 years, Occu. Business,R/o. Majgenagar, Kawa Road, Latur, Tq. & Dist. Latur.7.Shivshankar Mallikarjunappa Bidve,Age 70 years, Occu. Business,R/o. Lokhand Galli, Latur. ....Respondents...Mr. Rajendra S. Deshmukh a/w. Mr. Jay Veer i/b. Mr. N.P. Patil-Jamalpurkar,Advocate for petitioners. WP 11919/2023 & Anr.2Mrs. P.R. Bharaswadkar, AGP for respondent/State.Mr. R.N. Dhorde, Senior Advocate i/b. Mr. P.S. Dighe, Advocate forrespondent Nos. 3 and 5.Mr. T.G. Gaikwad, Advocate for respondent No. 7. WITHWRIT PETITION NO. 11880 OF 2023Madhavrao Hanmantrao Patil (Taklikar),Age 61 years, Occu. Agriculture,R/o. Behind Kalikadevi Temple,Old Ausa Road, Latur, Tq. & Dist. Latur.....PetitionersVersus1.The Joint Charity Commissioner,Pune Region, Pune.2.The Deputy Charity Commissioner,Latur Region, Latur.3.Manmathappa S/o. Pandbappa Lokhande,Age 90 years, Occu. Business,R/o. Subhash Chowk, Latur,Tq. & Dist. Latur.4.Mahesh S/o. Virbhadrappa Halge,Age 55 years, Occu. Business,R/o. Sadbhavna Nagar, Latur,Tq. & Dist. Latur.5.Shivshankar S/o. Vaijnathappa Khanapure,Age Major, Occu. Pensioner,R/o. Adarsha Colony, Latur,Tq. & Dist. Latur.6.Ashok S/o. Sharnappa Upase,Age Major, Occu. Agriculture,R/o. Pochamma Galli, Latur,Tq. & Dist. Latur.7.Shivshankar Mallikarjunappa Bidve,Age 70 years, Occu. Business,R/o. Lokhand Galli, Latur. ....Respondents...Mr. N.P. Patil-Jamalpurkar, Advocate for petitioner.Mrs. P.R. Bharaswadkar, AGP for respondent/State.
Legal Reasoning
WP 11919/2023 & Anr.3Mr. R.N. Dhorde, Senior Advocate i/b. Mr. P.S. Dighe, Advocate forrespondent No. 5.Mr. T.G. Gaikwad, Advocate for respondent Nos. 3 & 7. CORAM : ARUN R. PEDNEKER, J.DATED : 28th February, 2024.JUDGMENT : 1)In the Writ Petition No. 11919/2023, the petitioners are challengingthe impugned judgment and order dated 31.7.2023 passed by the JointCharity Commissioner, (hereinafter referred to as “Jt.C.C.” for short) PuneRegion, Pune in Appeal No. 35/2022 and the order dated 9.9.2022 passedby the Deputy Charity Commissioner, (hereinafter referred to as “Dy.C.C.”for short) Latur Region, Latur in Change Report (hereinafter referred to as“C.R.” for short) No. 1420/2019, thereby accepting the C.R.No. 1420/2019filed by the respondent No. 3. 2)In Writ Petition No. 11880/2023, the petitioner is challenging theimpugned judgment and order dated 1.8.2023 passed by the Jt.C.C., PuneRegion, Pune in Appeal No. 36/2022 and the order dated 9.9.2022 passedby the Dy.C.C., Latur Region, Latur in C.R.No. 596/2021, thereby rejectingthe C.R.No. 596/2021 filed by the petitioner.3)Both the writ petitions are interconnected with each other and ariseout of the elections of the same trust, as such, both these writ petitions aretaken up for hearing together. The Hon’ble Supreme Court by order dated7.6.2022 in Petitions(s) for Special Leave to Appeal (c) Diary No.15900/2022 had directed the authorities concerned to decide the aboveC.Rs. together and the Dy. C.C., so also the appellate authority i.e. Jt.C.C.
Decision
WP 11919/2023 & Anr.4have decided aforesaid C.Rs. together and thus, the writ petitions are takenup for hearing together. 4)Facts, giving rise to the Writ Petition Nos. 11919/2023 and 11880 of2023 can be summarized as under :-Writ Petitions concern with the election of “Mahatma BasweshwarEducation Society, Latur”, a public trust, registered in accordance with theprovisions contained in the Maharashtra Public Trust Act, 1950 as well asthe Societies Registration Act, 1860, having registration No. F-52/Latur. Thesaid public trust is one of the oldest Educational Trust in MarathwadaRegion, which runs schools and colleges at different places in MarathwadaRegion of Maharashtra.5)The litigation has a long history. The trust was established in the year1965. The deceased father of respondent No. 7 – Mallikarjunappa Bidve andthe petitioner No. 1 (Sambappa Girwalkar) are the founder trustee. Thepetitioner No. 1 and his group were in control of the said trust till 2013. Inthe year 2018, complaints were made relating to the management of thetrust to the Dy.C.C., Latur and therefore, administrator was appointed anddirections were given to Assistant Charity Commissioner (hereinafterreferred to as ‘A.C.C.’ for short) to conduct the election of the trust. Afterconducting elections in the year 2018 C.R. No. 5548/2018 was filed beforethe A.C.C., Latur and was provisionally accepted on 18.8.2018. 6)Writ Petition No. 8593/2018 was filed by the present petitioner No. 1and his group, challenging the said elections held in the year 2018 byalleging fraud. It was alleged that as per the Constitution of the trust, only WP 11919/2023 & Anr.5founder members are eligible to contest the elections of the President andthe petitioner No. 1 – Mr. Girwalkar was the only founder member, who wasalive and the respondent No. 7 could not have been elected as a President. A)In Writ Petition No. 8593/2018, this Hon’ble Court vide order dated22.2.2019 observed that only one founder member is alive and no patronmembers, who are eligible to contest elections are alive. Thus, the HighCourt directed that an ordinary member being inducted prior of 1994 wouldbe entitled to apply for patron membership and would be eligible to contestthe election if a member pays Rs.30,000/- to the trust within a particulartime and the member should be treated as patron member. However, thisfact i.e. whether the ordinary member on payment of Rs.30,000/- andbeing enrolled as patron member becomes instantly eligible to contest theelection is disputed by the petitioners. I will discuss this in detail in thecourse of the judgment. But suffice to mention that 30 members paidRs.30,000/- and became patron members. This Court by order dated22.2.2019 also directed the Jt.C.C. to hold elections of the trust. The abovementioned order of this Court dated 22.2.2019 was challenged before theHon’ble Supreme Court in Petition(s) for Special Leave to Appeal ( C) No (s)8089-8090/2019 by the petitioners and the same was dismissed by theHon’ble Supreme Court vide order dated 29.3.2019. 7)In view of the order passed in Writ Petition No. 8593/2018 the Jt.C.C. was appointed as Administrator and he took charge. On 15.3.2019, theJt. C.C. appointed Dy. C.C. as an election officer. On 1.4.2019, voters listhas published. Objections were raised against the list of voters list. The WP 11919/2023 & Anr.6same was decided by the Dy.C.C. The said decision of Dy.C.C. waschallenged by filing Writ Petition No. 5311/2019 before this Court and WritPetition No. 5311/2019 was also dismissed. On 2.4.2019, the voters list of44 members became final. On 16.4.2019, the election officer published theelection programme commencing from 23.4.2019 to 5.5.2019. On 5.5.2019nominations were filed for 8 posts to be elected. In the election, thepetitioners’ group received 15 votes whereas the group of respondent No. 7received 28 votes. On 7.5.2019 the Administrator i.e. Jt. C.C. handed overcharge to the elected Managing Committee. As per the constitution of trust,on 13.5.2019 the seven governing council members were nominated. 8)On 20.5.2019, C.R. No. 1420/2019 was filed by the respondent No. 3– Manmatappa Lokhande, who was elected as Secretary of the Trust towhich the present petitioners raised the objection. On 23.10.2019 theTransfer Application No. 145/2019 was filed by the petitioners beforeJt.C.C., making allegations against the then Dy.C.C. and the said C.R. No.1420/2019 was transferred to another District i.e. to Dy.C.C., Beed. On25.6.2021, the Dy.C.C., Beed rejected the said C.R. No. 1420/2019. Againstthe order of Dy.C.C., Beed, rejecting the C.R. No. 1420/2019, Appeal No.10/2021 was filed by respondent No. 3 along with the application for stayon the same day before Jt.C.C., Latur. On 16.7.2021, in the appeal, status-quo order was passed by the Jt.C.C. On 17.8.2021 the Jt.C.C. suspendedthe order of rejecting C.R. No. 1420/2019. 9)Thereafter, on 29.10.2021, Transfer Application No. 31/2021 was filedby the petitioner before the Charity Commissioner (hereinafter referred to WP 11919/2023 & Anr.7as ‘C.C.’ for short) Mumbai by the petitioners for transferring the saidAppeal No. 10/2021 from Jt.C.C. Latur. In the meantime, the said order ofsuspension of C.R. No. 1420/2019 was challenged by filing Writ Petition No.9624/2021 by the petitioners and the same was also dismissed. 10)On 14.1.2022 the C.C. Mumbai allowed the Transfer Application No.31/2021 and Appeal No. 10/2021 was transferred to Jt.C.C. Mumbai. On21.2.2022 the Jt.C.C., Mumbai allowed the Appeal No. 10/2021 andremanded the matter to the Dy.C.C., Latur for hearing from the stage ofarguments. However, by order 28.4.2022 in Writ Petition No. 3557/2022,this Court by keeping the remand order of Jt.C.C., Mumbai intact directedDy.C.C. that after the remand, the matter should be heard fully and notfrom the stage of arguments.11)In the interregnum, when the Dy.C.C., Beed rejected C.R. No.1420/2019 on 25.6.2021. The present petitioners on26.6.2021 issued notice for General Body Meeting, which was held on4.7.2021. In the said General Body Meeting, it is alleged that elections tookplace and trustees are elected and C.R. No. 596/2021 was filed by thepetitioner No. 2 - Madhavrao Patil as reporting trustee showing newmanaging committee being elected.12)On 29.9.2021, Madhavrao Patil filed application under section 22(A)for acceptance of provisional C.R. No.596/2021. The Dy.C.C. did not passany order on the application for acceptance of provisional C.R. No.596/2021 filed by Madhavrao Patil, apperantely, on account of order passedby the Jt.C.C. on 17.8.2021 in C.R. No.1420 of 2019. WP 11919/2023 & Anr.813)On 11.11.2021, the present petitioner No. 2 – Madhavrao Patil filedan application before the Dy.C.C., Latur to decide his application foracceptance of provisional C.R. No. 596/2021. Thereafter, Madhavrao Patilfiled Writ Petition No. 2421/2022 seeking direction to Dy.C.C. Latur todecide his provisional C.R. On 14.3.2022, this Court disposed of the WritPetition No. 2421/2022, directing the Dy.C.C., Latur to accept theprovisional C.R. No. 596/2021. In this matter, only State authorities weremade parties and the respondent No. 7 was not made party. As such, on23.3.2022, respondent No. 7 filed Review Application No. 96/2022 in WritPetition No. 2421/2021. The same was dismissed by this Court by orderdated 25.3.2022, directing that C.R. No. 596/2021 be decided on merits.14)On 29.3.2022, the Dy.C.C. observed that there are conflicting ordersnamely Jt.C.C. suspended order of rejecting C.R. No. 1420/2019 and theorder passed by the High Court accepting C.R. No. 596/2021 and thus didnot accept provisional C.R. No. 596/2021. On 4.4.2022 Contempt PetitionNo. 203/2022 was filed against the Dy.C.C., Latur by the present petitionerNo. 2 – Madhavrao Patil, alleging that despite directions, the provisionalchange report is rejected. On 6.4.2022, this Court issued notice in theContempt Petition to the Dy.C.C. Contempt Petition No. 203/2022 was heardand the apology made by the Dy.C.C was accepted. The Dy.C.C. requestedpermission of this Court to withdrew the order dated 29.3.2022 and passfresh order on provisional acceptance of C.R. No. 596/2021. Presentrespondent No. 7 had also filed an application for intervention in the saidContempt Petition No. 203/2022. WP 11919/2023 & Anr.915)On 9.5.2022, the Dy.C.C. provisionally accepted the change report.The said order dated 9.5.2022 of the Dy.C.C. was challenged and in WritPetition No. 2421/2022 finally before the Supreme Court in SLP (Diary)No.15900/2022 by Respondent No.7. The Hon’ble Supreme Court directedthe Dy. C.C. to hear both C.R. Nos. 1420/2019 and 596/2021, after hearingall the parties at earliest preferably within three months. 16)After the order passed by the Hon’ble Apex Court, directing to hearboth C.Rs. simultaneously, Transfer Application No. 44/2022 was filed bypetitioner No. 1 before the Charity Commissioner, seeking transfer of thechange reports from Dy.C.C. Latur to another Dy.C.C. On 7.7.2022 the C.C.Mumbai rejected the transfer application. 17) Against the order of the Charity Commissioner, the petitioner No. 2Madhavrao Patil filed Writ Petition No. 7138/2022 and this Court by orderdated 12.7.2022 rejected the Writ Petition No. 7138/2022. Thereafter, thepetitioner No. 2 filed SLP (Diary) No. 12756/2022 and the same wasdisposed of by the Supreme Court by order dated 29.7.2022. 18) On 9.9.2022 the Dy.C.C. allowed C.R. No. 1420/2019 and rejectedC.R. No. 596/2021 by separate judgments.19)On 27.2.2022, Appeal No. 35/2022 is filed by the present petitionersagainst the acceptance of C.R. No. 1420/2019 and Appeal No. 36/2022 bypetitioners is filed against the order rejecting C.R. No. 596/2021. There wasno interim order passed by the Appellate Court and the appellate Court, bythe impugned order dismissed both the appeals which are impugned in the WP 11919/2023 & Anr.10present writ petitions. The Writ Petition No. 11919/2023 is in respect of C.R.No. 1420/2019 and Writ Petition No. 11880/2023 is in respect of C.R. No.596/2021.Contentions of the petitioners in Writ Petition No. 11919/202320)The contentions of the petitioners in Writ Petition No. 11919/2023 areas under :-(i)C.R. No. 1420/2019 deserves to be rejected, as theelections to the Governing Council of Public Trust held on5.5.2019 is illegal for the reason that the elections of theMembers of Governing Council were held in contravention ofthe Constitution of the Public Trust. (ii)The election of the respondent No. 7 as President isillegal, because he is not qualified and eligible to contest theelection, in view of his involvement in committing fraud andforgery. He had shown himself as eligible and qualifiedmember by manipulating/forging the copy of theConstitution of the Public Trust and therefore, a CriminalCase is also filed by the Trustees against the respondent No.7.(iii)In the election of President and Vice President, allmembers have casted their votes, but as per theConstitution of the Public Trust only Patron members areentitled to vote. Therefore, the election of the respondent WP 11919/2023 & Anr.11No. 7 as President is illegal. (iv)The second objection is that 06 (six) members ofGoverning Council are to be elected by the General Body.But in the elections in question, the Returning Officer havetaken votes of only members of the Public Trust. Infact,these 06 (six) members are required to be elected by theGeneral Body. Head of Institutions are members of theGeneral Body and they were not called by giving notice forelecting 06 (six) members of the Governing Council. Hence,the elections of Governing Councils are illegal.(v)As the election of the respondent No. 7 as Presidentitself is illegal and therefore, nominations made by him inrespect of 04 (four) members of Governing Council and alsoSecretary and Treasurer are vitiated.(vi)C.R. No. 1420/2019 in respect of elections ofGoverning Council held on 05.05.2019 was submitted beforethe Dy.C.C. Latur on 20.05.2019 by the respondent No. 3along with separate Application U/sec. 22 (2) of M.P.T. Actfor accepting the said C.R. provisionally. The Dy.C.C. Laturvide order dated 4.1.2021 refused to accept the said C.R.No.1420/2019 provisionally. The order dated 4.1.2021 passedby Dy.C.C. Latur was challenged by the respondent No. 3 byfiling W.P. No. 1173/2021 in this Hon’ble Court. On WP 11919/2023 & Anr.1224.2.2021 this Court dismissed W.P. No. 1183/2021 andconfirmed the order of Dy.C.C. Latur refusing to accept C.R.No. 1420/2019 provisionally.(vii)Thereafter, C.R. No. 1420/2019 was rejected finally onmerits after holding a detail inquiry by Dy.C.C. videjudgment and order dated 25.6.2021. The Dy.C.C. Laturrejected the said C.R. No. 1420/2019 on merits by recordinga finding that whole elections to the members of GoverningCouncil including of President and Vice President were heldin contravention of Constitution of the Public Trust. TheDy.C.C. also recorded a finding that 06 (six) members ofGoverning Council were not elected by the General Body,which includes Head of Institutions.(viii)The said order of rejection of C.R.No. 1420/2019 waschallenged by the respondent No. 3 by filing Appeal No.10/2021 before the Jt. C.C. The respondent No. 3 and othercould not succeed in Appeal No. 10.2021, as the AppellateAuthority has inclined to accept the said C.R., but onlyremanded the matter for fresh inquiry. The remand wasmade only for ascertaining as to whether participation ofHead of Institutions is really mandatory as per theconstitution of the Public Trust or not. (ix)As several authorities in various proceedings did not WP 11919/2023 & Anr.13accept C.R. No. 1420/2019, but the Dy.C.C. by acting incollusion with the respondent Nos. 3 and 7 and under theirinfluence for the first time accepted the C.R. No. 1420/2019under order dated 9.5.2022. The said order of Dy.C.C. waschallenged by the petitioners by filing Appeal No. 35/2022before Jt.C.C. On 31.7.2023 the Jt. C.C. without going to thelegal objections as mentioned in above paragraphs dismissedAppeal No. 35/2022 and confirmed the order of Dy.C.C.accepting C.R. No. 1420/2019. (x)The respondent No. 7 and his father by nameMallikarjunappa Bidve have misappropriated Crores ofrupees of the Public Trust. His father by nameMallikarjunappa Bidve was removed permanently by CharityCommissioner in proceedings under section 41-D for chargesof misappropriation.(xi)The order of removal and dismissal of MallikarjunappaBidve (father of respondent No. 7) was challenged beforethis Hon’ble High Court. This Hon’ble High Court videjudgment and in the case reported in 2008 (1) Mh.L.J. 148held that Mallikarjunappa Bidve (father of respondent No. 7)collected Crores of rupees by accepting donations fromstudents and also illegally collected and misappropriatedTrust’s funds and also not paid salary of employees of BidveEngineering College and utilized the said amount for his own WP 11919/2023 & Anr.14personal benefits and therefore, all these activities are in thenature of misfeasance, which includes breach of Trust, whichwould result into loss of Trust and would cause unlawful gainto such trustee. This Hon’ble High Court confirmed theremoval/dismissal of Mallikarjunappa Bidve.(xii)The son of Mallikarjunappa Bidve i.e. presentrespondent No. 7 has continued with same activities. Therespondent No. 7 not only misappropriated crores of rupees,but he is also involved in act of forgery of Trust’sConstitution for showing himself eligible and qualified tobecome President. He has forged document of Constitutionof the Public Trust by manipulating it and also got certifiedthis document of Constitution of Trust by applying pressureand influence on person, who used to certify the documentin the office of the Charity Commissioner. Therefore, thisserious question arose for consideration as to whether manlike the respondent No. 7 can be allowed to be continued inthe Trust in capacity of President. Therefore, the order dated31.7.2023 passed by the Jt.C.C. Pune in Appeal No. 35/2022and the order dated 9.5.2022 passed by the Dy.C.C. Laturaccepting C.R.No. 1420/2019 have been challenged in WritPetition No. 11919/2019 for quashing the same.Contentions of the respondents in Writ Petition No. 11919/202321)The contentions of the learned counsel for respondents in Writ WP 11919/2023 & Anr.15Petition No. 11919/2023 are as under :-(i)Suppression of material facts and abuse of process ofCourt :- The petitioners were required to disclose true andcorrect factual details in the pleadings of the present WritPetition along with documents to that respect. Thepetitioners conveniently did not disclose the orders dated16.7.2021 and 17.8.2021 passed by the Ld. Jt.C.C. in AppealNo. 10/2021 by which initially the status quo order waspassed and prepared record and had illegally filed applicationExh. 13 for provisional acceptance of their C.R. No.596/2021 on 29.9.2021. In the said application petitionerssuppressed the fact of the above referred orders passed bythe Ld. Jt.C.C. in Appeal No. 10/2021 suspending the orderof rejection of C.R. No. 1420/2019 there cannot be twomanagement and therefore, their application for provisionalacceptance was not maintainable when the appeal period isnot over. The petitioner No. 2 filed Writ Petition No.2421/2021 for directions to decide application Exh. 13 forprovisional acceptance and in the said W.P. also the saidfacts were not disclosed and factual details were suppressedin W.P. before this Hon’ble Court. The order in W.P. No.2421/2021 was obtained by fraud, not disclosing all factsbefore this Hon’ble Court. These respondents are not partiesto said W.P. WP 11919/2023 & Anr.16(i-a)Considering the pleadings of the present W.P. also thepresent petitioners have not approached before this Hon’bleCourt with clean hands and have suppressed variousimportant facts from this Hon’ble Court. The petitioners havemade allegations against the Ld. Dy.C.C. in the pleadings ofthe petition on the basis of the order passed by in ContemptPetition No. 203/2022. The petitioners did not mention thefurther details i.e. filing of Transfer Application No. 44/2022seeking transfer of C.R. from Dy.C.C., Latur to anotherDy.C.C. The said Transfer Application No. 44/2022 came tobe rejected by C.C., Mumbai making observations about theconduct of the petitioner No. 2 Madhavrao Patil. Thepetitioner No. 2 herein filed WP No. 7138/2022 against therefusal of transfer of C.R. and the said WP also came to bedismissed on 12.7.2022. The petitioner No. 2 filed S.L.P.(Diary) No. 1275/2022 and the Hon’ble Supreme Court hasrecorded the statement of the petitioner that he has full faithin the Ld. Dy.C.C. and is ready to conduct the matter. Allthese facts are conveniently and deliberately suppressed bythe present petitioners in the present W.P. The said conducton the part of the petitioners will clearly amounts toconcealment of material facts and misleading this Hon’bleCourt. The said act on the part of the petitioners alsoamount to contempt of court for abusing the process of courtby not approaching this Hon’ble Court with clean hands andby disclosing all facts before this Hon’ble Court. Therefore, WP 11919/2023 & Anr.17the petitioners are not entitled for any equitable relief andtherefore without going into the merits of the case, thepresent WP is liable to be dismissed at the threshold for notdisclosing all facts before this Hon’ble Court. (ii)B. Concurrent findings of facts recorded by twoauthorities below may not be interferred with under Article227 of the Constitution of India.Both the authorities below have considered theobjections raised by the present petitioners to the C.R.No.1420/2019 and have specifically recorded findings on eachground raised by the petitioners. (iii)Ground that non participation of Head of Institutionvitiates election :-The Ld. Dy.C.C. has recorded the findings. TheLd.Jt.C.C. Appellate Authority has also recorded findings inAppeal No. 35/2022. The petitioners are trying to refer toappointment of one Shri. Kadge then head of institution asJoint Secretary in the year 1988.Considering the record, itwould clearly show that, the said Shri. Kadge was nominatedas Ex-officio member and subsequently he had resignedfrom the said post as will be evident from the order dated27.2.1988 passed in C.R. No. 66/1988. The record showsthat, he has never contested elections and was only Ex-officio member therefore, the petitioners cannot rely upon WP 11919/2023 & Anr.18the same. The Head of Institution are not members of theTrust and cannot vote, therefore, they are not included inthe voters list. (iv)C. Elections not materially affected by not includingnames of head of institution :-The petitioners are trying to contend that, due to non-participation of Head of Institution in the election the sameare vitiated. The Ld. Jt.C.C. has specifically recorded findingthat the present petitioners are defeated by receiving 13votes as against 28 votes by the group of this respondent.Even if the Head of Institution were allowed to vote theresult of the election would not be materially affected or willnot change at all as elected committee has won by margin of13 votes. (v)D. Judgment obtained by fraud is to be treated asnullity :-The present petitioners are time and again referringthe judgment of this Hon’ble Court in WP No. 2421/2022 inorder to make allegations against the Ld. Dy.C.C. As referredabove, the present petitioners did not disclose all facts in theapplication for provisional acceptance of C.R. as well as inthe said W.P. before this Hon’ble Court and obtained the saidorder by fraud on court. Therefore, the judgment in WP No.2421/2022 has to be treated as nonest in view of the WP 11919/2023 & Anr.19judgment of Hon’ble Supreme Court reported in AIR 2007SCC 154. (vi)Conduct of the petitioners :-(a)The elections were held as per the directions of thisHon’ble Court in WP No. 8593/2018 by judgment dated22.2.2019. The said judgment is confirmed by the Hon’bleSupreme Court on 29.3.2019. (b)The elections were held by appointing administratori.e. Lt.Jt.C.C. and the elections officer was Ld. Dy.C.C.Despite, this the petitioners are disputing the elections onone or other ground and are filing various proceedings whichis abuse of process of Court. (c)The petitioners filed first Transfer Application No.145/2019 for transfer of C.R. No. 1420/2019 by makingallegations against the authority and same was transferredfrom Latur to Beed. In Appeal No. 10.2021 the interim orderwas passed on 17.8.2021 suspending the rejection of C.R.No. 1420/2019 and immediately thereafter, the presentpetitioners filed Transfer Application No. 31/2021 makingallegations against appellate authority also for transferringthe said Appeal No. 10/2021 from Jt.C.C. Latur to Jt. C.C.,Mumbai. The said Transfer Application No. 31/2021 wasallowed and the Appeal No. 10/2021 was transferred toJt.C.C., Mumbai.(d)The Hon’ble Supreme Court by order dated 7.6.2022 WP 11919/2023 & Anr.20specifically directed to hear both the C.R. No. 1420/2019and 596/2021 within three months and parties were directedto cooperate to the Dy.C.C. Despite, this the petitionersagain filed Transfer Application No. 44/2022 makingallegations against Dy.C.C. for transfer of C.R. from Dy.C.C.Latur to other Dy.C.C. The said Transfer Application No.44/2022 rejected by C.C.,Mumbai and the said order isconfirmed by the Hon’ble Supreme Court.(e)In view of the above, it would clearly show thedishonest conduct on the part of the present petitionersmaking allegations against the authorities who are decidingagainst them. In the present petition also despite there isundertaking recorded of the present petitioners by theHon’ble Supreme Court for conducting the matter before Ld.Dy.C.C. against whom now allegations are being made, arereferring to the earlier record which as been refused to beconsidered in last Transfer Application. All this would showdishonest intention of the petitioners in approaching thisHon’ble Court. Therefore, considering the said dishonestconduct on the part of petitioners they are not entitled forany relief in the present W.P.POINTS FOR DETERMINATION22)From the above submissions of the learned counsel for the parties,following points arise for determination in Writ Petition No. 11919/2023 :-I)Whether elections held on 5.5.2019 in respect of C.R. No. WP 11919/2023 & Anr.211420/2019 are vitiated on account of non following the provisionsof Constitution of the Trust ?II) Whether the authorities who decided C.R. No. 1420/2019and C.R. No. 596/2021 were biased in deciding the above C.Rs.and whether the decisions taken by the authorities are unlawfulon account of bias towards the petitioners ? (This issue beingcommon to both the C.Rs. Is considered at the end of thisjudgment)CONSIDERATION IN WRIT PETITION NO. 11919/202323)Challenge in C.R. No. 1420/2019 is primarily to the elections beingnot in accordance with the Constitution of the Trust. The relevant provisionsof the Amended Constitution of Mahatma Basweshwar Education Society,Latur Trust, necessary to decide the writ petition are quoted below asunder :-“GENERAL BODY :-(a)The General Body of the Society shall consist of allthe members mentioned above except thehonorary members. Head of all the institutions ofthe Society will be the members of the Generalbody. The meeting of the General body will beconveyed once a year within six months of theclose of financial year.(b)…..(c)A special meeting of the General Body will beconveyed if felt necessary by the Governing WP 11919/2023 & Anr.22Council or on written requisition to the presidentby 30 or more members who have right to vote bygiving a week notice. But in such special meetingsno other item (s) than the one for which themeeting is called will be discussed.(f)The member enrolled as per the previousconstitution will have no right to be a memberunless he fulfilled the requirement as per the newconstitution and those members who have fulfilledrequirements as per the new constitution beforeDecember 1970 will be member of the Society.The existing President and Vice-President will bepermanent President and Vice-Presidentrespectively till their life time. After them thePresident and Vice-President is to be elected byGeneral Body from amongst founder member orfrom patron member. If no member is availablefrom founder member then from well-wisher, if nomember is available from patron member.President and Vice-President shall have a right tonominate the Secretary and Treasurer andSecretary in consultation with President and Vice-President shall nominate Joint Secretary ifnecessary.(g)The President and Vice-President shall have a rightto nominate four Governing Council members (in WP 11919/2023 & Anr.23addition to Secretary and Treasurer).(1)To prepare educational plans in accordance withthe objects of the Society and to have Generalsupervision over them. (2)To consider the approved annual report preparedby the Governing Council.(3)To elect the 6 members only of the GoverningCouncil of Society. GOVERNING COUNCIL :-(1)The Governing Council of the Society shall consistof 15 members and only those members of theSociety who have a standing of 5 years will beeligible for membership of the Governing.(2)The Governing Council shall be elected at the endof every 5 years. The same members beingeligible for reelection. (3)The Head of the each institution(s) run by thesociety shall be ex-officio member of theGoverning Council.(4)The Governing Council has the right to elect otheroffice bearers (other the President, Vice-President,Secretary, Joint-Secretary and Treasurer, if feltnecessary. Hence the President may appoint aExecutive Director from amongst elected membersof the Governing Council for period of five years WP 11919/2023 & Anr.24after election of the former.(5)…..(10)The President or Secretary has got a right to call aspecial meeting of the Governing Councils on hisown initiative or on the requisition signed by fiveor more members of the Governing Council.(11)The six members of the Governing Council fromthe General Body (excluding subscriber andHonorary member) will be elected by GeneralBody. If a candidate remains absent in a meeting,his written consent to contest the election isessential.”24)Formation and constitution of Governing Council as per the approvedConstitution of the Public Trust is as follows-(A)Total members of Governing Council are 15;(B)President and Vice President are to be elected fromthe founder member and the Patron Membersof the trust(except honorary member), the President and Vice Presidentshall have right to nominate Secretary and Treasurer and theSecretary in consultation with President and Vice-Presidentshall nominate Joint Secretary. The President and Vice-Presidence shall have right to nominate 04 GoverningCouncil Members (in addition to Secretary & Treasurer).(C)The General Body of the Public Trust shall consist ofmembers of the Trust except “honorary members”. Head of WP 11919/2023 & Anr.25all institutions of the Public Trust will be members of theGeneral Body.(D) 06 (six) members of Governing Council from GeneralBody (excluding subscribers & honorary members) will beelected by General Body.(E)“Powers and function of General Body”, the GeneralBody have right to elect 06 (six) members of GoverningCouncil of the Public Trust.As per the above provisions of Constitution of the Public Trust, theGoverning Council has to be constituted by way of elections andnominations.25)The Constitution of the Trust provides that the General Body of theTrust should consist of members of the trust except ‘honorary members’. Italso includes the head of the institution. The General body elects theGoverning council from the patron members and founder members. Interms of the order dated 22.2.2019 in Writ Petition No. 8593/2018(Sambappa Trimbakappa Girwalkar Vs. Deputy Charity Commissioner andOrs.) with other connected matters, this Court permitted the generalmembers to become patron members by depositing fee of Rs. 30,000/-towards patron membership and permitted such members to contest theelections to the post of President etc. as only one single founder memberwas alive as on that date and no patron member was alive. The relevantportion at para 10 and 33 of the order dated 22.2.2019 in Writ Petition No.8593/2018 is as under :-“10.There is no dispute that considering the passage oftime of about 54 years of the formation of the Mahatma WP 11919/2023 & Anr.26Basweshwar Education Society Trust, not a single patronmember is alive. Out of the founder members, only 1 personnamely Sambappa Trimbakappa Girwalkar is alive. There isno dispute considering the 1965 memorandum, theamendment to the Constitution of 1973 and the subsequentamendment in 1994, that there is no change in the positionthat only a founder member or a patron member would beeligible for contesting the post of President of the Trust. It isalso undisputed that owing to the amendment of 1973, therewas a ban on enrollment of new members.11.……..33.Since I find that not a single patron member is alivetoday and only one founder member is available, it would bea mockery of democracy to permit an election of the Trustsince the said founder member would stand elected withoutany contest. Moreover, there is no embargo on the numberof patron members. An ordinary member can become apatron member by depositing Rs.30,000/- as his patronmembership fees and he would be eligible to contest theelections to the post of President etc. since none of themembers can aspire to be founder members in view of thedefinition, and since only one founder member is alive, endsof justice would met and the interest of the Trust wold besecured if the general members are permitted to becomepatron members in view of there being no prohibition inlaw.”This order dated 22.2.2019 has attained finality after the S.L.P. against theorder was dismissed and thus, the patron members admitted within thetime frame given by this Court, by depositing Rs.30,000/- would be eligibleto contest the elections of Governing Council. 26)The submission of the counsel for the petitioners is that all themembers of the General Body were not called for the elections to theGoverning Council i.e. the heads of the institutions were not issued notices,who are the part of the General Body and they did not participate in the WP 11919/2023 & Anr.27election process. With regard to the above submissions canvassed by thelearned counsel for the petitioner, the relevant facts that are required to benoted are that the elections to the trust were held in view of the directionsof this Court by the authority appointed by this Court. The authorityappointed by this Court has appointed election officer. The election officerpublished the voters list and objections were invited to the voters list as isseen from the impugned order and there is no dispute about this fact. Noneraised objections to the voters list with regard to the heads of the institutionbeing not shown in the voters list. There is no objection by any one of thehead of the institution also. It is also not known as to how many institutionshad functional heads at the relevant time. No data in this regard is availableeven before this Court. I do not see that the heads of the institution of thetrust are challenging the elections of the Governing Council of the trust.There is also no clear evidence that at any point of time in the earlierelections all the heads of the institutes participated for voting in the GeneralBody. No voters list is produced of the earlier elections to demonstrate thatthe heads of institute participated in any earlier elections as voters. Thesolitary instance of one Head of the Institute being elected as a member ofGoverning Council, is insufficient to hold that the Heads of Institution werepart of the Governing Body before the election under challenge. It iscontended by the respondent that the elected head of the Institution wasthe ex-officio member of the Trust. In absence of any data as regards theheads of the institution to constitute the General Body, it cannot be saidthat elections would be materially affected, if the head of the institutionwere given opportunity to participate in election process. From the group ofrespondents elected members got 28 votes whereas from the group of WP 11919/2023 & Anr.28petitioners members got 15 votes and the newly committee was elected bythe margin of 13 votes. In the Writ Petition, the Petitioners have submittedlist of 14 institutes being run by the Trust. However, there is no data asregards the functional heads of the institutes. Thus, in absence of materialdata, it cannot be said that the elections could have been materially alteredin the event the heads of the institution had participated in the election. 27)As regards members qualification to be eligible to contest forGoverning Council is concerned i.e. should be a member for 5 yearsis concerned, it is undisputed that all the members were enrolled for a longperiod of time i.e. for more than 5 years. There is no separate qualificationthat the members should be a patron member for five years and in anyevent, in terms of the order passed by this Court in Writ Petition No.8593/2018, an ordinary member was allowed to become a patron memberby depositing Rs.30,000/- as his patron membership fees and was madeeligible to contest the elections to the Governing Council as the the relevanttime there were no patron members available to contest the election. Assuch, the qualification aspect of the patron member is no more res-integraand it stood concluded by the earlier order passed by this Court in WritPetition No. 8593/2018. Clause (1) of the Constitution of the Trust relatingto Governing Council reads as under :-“1)The Governing Council of the Society shall consist of15 members and only those members of the Society whohave a standing of 5 years will be eligible for membership ofthe Governing Council.”Thus, the elections which are conducted by the officers appointed by thisCourt are by following due process of law and cannot be said to be vitiated WP 11919/2023 & Anr.29on account of the aforesaid challenge to the elections and as such, C.R. No.1420/2019 is accepted. Hence I answer point No. 1 accordingly. Contentions of the petitioners in Writ Petition No. 11880/202328)The contentions of the petitioners in Writ Petition No. 11880/2023 areas under :- (i)On 16.7.2021 after elections of Governing Council,C.R. No. 596/2021 was filed by the petitioners in the officeof Dy.C.C. Latur. The elections to Governing Council wereheld on 4.7.2021 in strict compliance of the Constitution ofthe Public Trust. 06 (six) members of Governing Councilwere elected by the General Body of the Public Trust. Theelected President and Vice-President legally nominated theSecretary, Treasurer and other members of GoverningCouncil as per the Constitution of Public Trust. 06 (six)members of Governing Council were elected by the GeneralBody. All Heads of Institutions, those who are members ofGeneral Body, have participated in the elections and theyhave chosen by way of elections 06 (six) members ofGoverning Council. Copies of documents pertaining toelections to Governing Council held on 4.7.21 are beingplaced on record.(ii)The Division Bench of this Hon’ble High Court videjudgment and order dated 14.3.2022 allowed W.P. No.2421/2022 and directed the Dy.C.C. Latur to accept C.R. No. WP 11919/2023 & Anr.30596/2021 provisionally within a period of two weeks fromthe date of order. The said order is challenged by filingReview Application No. 96/2022. In Review Application No.96/2022, the respondent No. 3 contended that elections ofGoverning Council were held for a period of five years on5.5.2019 and C.R. No. 1420/2019 is pending before CharityCommissioner for adjudication. Therefore, subsequentelections of Governing Council held under leadership of thepetitioner are not tenable. He further contended that in viewof the order of status-quo passed by Jt.C.C. on 17.8.2021 inAppeal No. 10/2021, C.R. No. 596/2021 cannot be acceptedprovisionally. (ii-a)From perusal of contents of Review Application No.96/2023, it is contended that all the grounds raised by therespondent No. 3, have already been considered by theDivision Bench while dismissing the Review Application No.96/2022 vide judgment and order dated 25.3.2022. (iii)The Jt.C.C. by name Mr. B.D. Kulkarni, who passed theorder dated 17.8.2021 has tendered unconditional apologybefore this Hon’ble High Court in Contempt Petition No.213/2022 in First Appeal No.177/2019. In the said ContemptPetition, the Jt.C.C. by name Mr. B.D. Kulkarni filed hisaffidavit in reply specifically stating in paragraph No. 4 asfollows :- WP 11919/2023 & Anr.31“I say that, it would indeed be inappropriate if I do notadvert to the contents of Para No. 7 of my order atExh. “J” below Exh. 4 in Appeal No. 10 of 2021 dated17.8.2021. On account of passing of an order of“status-quo”, there were allegations and counterallegations that, the status-quo is being misinterpreted.Certain accusations were also made against me in thecapacity as Presiding Officer. The statements in ParaNo. 7 are the outcome of Discomposure, which toowere not expected to be a part of an order in judicialproceedings. My Sincere apologies for the same.” The Jt.C.C. initially passed the said order underinfluence and pressure applied by the respondent No. 3, butsubsequently he realized his mistake and therefore, he hasadmitted his mistake by contending that he ought not tohave passed such judicial order and thereby lot ainconvenience is caused to litigating parties in the saidproceedings. Therefore, the respondent No. 3 cannot takebenefits of the said order in support of their contentions. (iv)After service of notice of contempt, the Dy.C.C. Laturby name Mrs. Heera Shelke appeared and filed heraffidavit/say and thereby she tendered her unconditionalapology. The Division bench accepted her unconditionalapology and also given warning to Dy.C.C. not to pass orderin such manner in future and in view of the undertaking WP 11919/2023 & Anr.32given by Mrs. Heera Shelke that she would pass orderaccepting C.R.No. 596/2021 by passing a fresh order, theDivision Bench did not punish her for contempt. (v)The respondent No. 3 had challenged the order dated14.3.2022 passed in W.P. No. 2421/2022, the order dated25.3.2022 passed in R.A.No. 96/2022 and the order dated27.4.2022 passed in C.P. No. 2023/2022 by the DivisionBench by filing S.L.P. (Civil) No. 15900/2022 before theHon’ble Supreme Court. The Hon’ble Supreme Court did notentertain the S.L.P. (Civil) No. 15900/2022 and confirmedthe orders passed by the Division Bench of this Hon’ble HighCourt as referred above. The only directoins are given to theDy.C.C. Latur to decide both C.r.No. 596/2021 filed by thepetitioner and C.R. No. 1420/2019 filed by the respondentNo. 3 on its own merits within stipulated period.(vi)The present petitioner has made attempt to transferthe proceedings of Inquiry bearing C.R.No. 596/2021 andC.R. No. 1420/2019 to another Dy.C.C., because he hadapprehension about impartiality and bias. But, this Hon’bleHigh Court said that this request for transfer ought to havebeen made by the petitioner when the Contempt Petitionwas finally disposed of by the Division bench and therefore,the proceedings were not transferred. WP 11919/2023 & Anr.33(vii)The subsequent elections were held on 4.7.2021, werecomplete and in strict compliance of Constitution of theTrust. All head of Institutions were present in the GeneralBody meeting and 30 members except 10 membersbelonging to the group of the respondent No. 3 and 7. (viii)In view of the order dated 14.3.2022 passed in W.P.No. 2421/2022, the order dated 25.3.2022 passed in R.A.No. 96/2022 and the order dated 27.4.2022 passed in C.P.No. 203/2022 by the Division bench, the C.R.No. 596/2021filed by the petitioner deserves to be accepted, but the lowerauthorities i.e. Jt.C.C. under pressure and influence appliedby the respondent Nos. 3 and 7 rejected the said C.R. No.596/2021 and accepted the illegal C.R. No. 1420/2019 filedby the respondent Nos. 3 and 7.Contentions of the respondents in Writ Petition No. 11880/202329)The contentions of the learned Senior counsel for respondents Mr.R.N. Dhorde in Writ Petition No. 11880/2023 are as under :-(i)A)Elections held illegally and without authority.The C.R. No. 1420/2019 was rejected on 25.6.2021.The present petitioners created a record to show that on26.6.2021 the notice was issued calling Special Generalmeeting (Pg. 446). The said notice is signed by the presentpetitioners and the same is without authority and contrary tothe constitution of the Trust. It is submitted that how WP 11919/2023 & Anr.34hurriedly the said notice is issued is evident from the recordthat immediately within a day the said alleged notice wasissued and the reason given is the rejection of C.R.No.1420/2019. In pursuant to the said notice the meeting wasscheduled on 4.7.2021. Both the authorities below have heldthat while rejecting the C.R.No. 1420/2019 there were nodirections to anybody to conduct the elections of the Trustand also the present petitioners did not approach by makingnecessary applications seeking permission for holding theelections. The Appeal No. 10/2021 was filed along with stayapplication before the learned Jt.C.C., Latur against therejection of C.R. No. 1420/2019. Therefore, it was necessaryon the part of the present petitioners at least to wait till theAppeal period is over. It is submitted that, the presentpetitioners have created said fraudulent record of showingholding of elections unopposed on 4.7.2021 as will beevident from the proceeding of the said alleged meetingdated 4.7.2021.(ii)The petitioners reporting trustee has admitted the factthat Mr. Girwalkar was not President of the Trust at the timeof the said elections and therefore in view of the constitutionof the Trust he had no authority. The other witness namelyUmakant Khanapure has also not produced any record toshow that, he was authorized to call meeting of SpecialGeneral Body. The said witness has also admitted that he did WP 11919/2023 & Anr.35not declared written program for election and also did notverify the list of the members nor called any objections.There were no forms published or printed and also no inwardor outward register are maintained. The said UmakantKhanapure who acted as Election Officer neither maintainedrecord nor, he is aware of who has written the minutes of themeeting. The authorities below have given specific findingsthat the Election Officer as well as the person who hadshown to be served the notice have not maintained anyrecord to that regard. (iii)B) Provisional Acceptance of C.R. does not createany final right.The petitioners have tried to contend that, their C.R.No. 596/2021 was accepted provisionally in view of thejudgment and order dated 14.3.2022 passed in W.P. No.2421/2022. It is submitted that the said order was obtainedby fraud by suppressing the facts before this Hon’ble Court.As on the decision of the W.P. No. 2421/2022 there wasalready interim order passed by the learned Jt.C.C. on17.8.2021 suspending the order of rejection of C.R. No.1420/2019. The said fact was suppressed by the presentpetitioners from this Hon’ble Court in the said W.P. andtherefore, did not approach this Hon’ble Court within cleanhands. The pendency of the Appeal being continuation ofproceedings therefore, in view of the suspension order WP 11919/2023 & Anr.36passed in Appeal, the further holding of elections as well asprovisional acceptance of said fresh C.R. was by suppressionof facts.POINTS FOR DETERMINATION30)From the above submissions of the learned counsel for the parties,following points arise for determination in Writ Petition No. 11880/2023 :-I)Whether elections held on 4.7.2021 in respect of C.R. No.596/2021 are unlawful for non following the procedure ofElection, so also for conducting the elections before the expiry ofthe earlier term and during the pending of Appeal No. 10/2021filed in respect of C.R. No. 1420/2019 ? II)Whether the authorities who decided C.R. No. 1420/2019and C.R. No. 596/2021 were biased in deciding the above C.Rs.And whether the decisions taking by the authorities are unlawfulon account of bias towards the petitioners ?CONSIDERATIONS31)At the outset, it is pertinent to note that the election as reported inC.R.No. 1420/2019, the term of the managing committee is from 5.5.2019to 4.5.2024. During the pendency of the appeal proceedings in C.R.No.1420/2019, it is shown that the Special General Body meeting was called byissuing notice dated 26.6.2021 by a member Madhavrao Hanmantrao Patiland founder member Sambappa Trimbakappa Girwalkar to be held on4.7.2021. The subject for the meeting is as under :-“lHksiq<hy fo”k; %&1½dk;Zdkjh eaMGkpk cny vtZ dza- 1420@19 gk fnukad WP 11919/2023 & Anr.3715@06@2021 jksth ukeatwj >kY;keqGs laLFksP;k lq/kkjhr lu1994 P;k ?kVusizek.ks ufou dk;Zdkj.kh eaMGkP;k fuoM.kwdk ?ks.ksckcr o ;kstuk r;kj dj.ks-2½vk;R;k osGP;k ;s.kk&;k fo”k;koj ppkZ d:ufu.kZ; ?ks.ks-”In the minutes of the General Body meeting held on 7.7.2021, it is recordedas under :-“;k lHkkx`gkP;k v/;{k ;kauh loZ lHkklnkpser ,sdqu ?ksmu dk;Zdkjh eaMGkP;k fuoM.kwdk ?ks.;klkBhfuoM.kwd vf/kdkjh Eg.kwu v¡M- mekdkar egk:nzIik [kkukiqjs ;kaphfu;qDrh dj.;kr vkyh o R;kauh lnj fu;qDrh Lohdk:ufuoM.kwd dk;Zdze mifLFkr lHkklnkleksj Bsoyk R;ke/;s laLFksP;klu 1994 P;k ?kVusuqlkj v/;{kinklkBh ik= mesnokj laLFkspslaLFkkid lnL; ,deso v¡M- lkacIik f™;acdIik fxjoydjvlY;keqGs R;kaps ukao v¡M- xaxk/kj foB~Byjko dksnGs ;kauk v/;{k inklkBh lqpfoys R;kyk vuqeksnu fot; ukxukFkIikksoMdj ;kauh fnys- R;keqGs v/;{k inh v¡M- lkacIik f™;acdIikfxjoydj ;kaph fcufojks/k fuoM dj.;kr vkyh- v/;{k inklkBhlHkkx`gkr lokZuqers eatwjh ns.;kr vkyh-mik/;{k inklkBh QkmaMj lHkkln@isVªkWu lHkkln@osyfo’kj lHkkln ;kiSdh dks.khgh ulY;keqGs loZ lHkklnkauhppkZe/kwu mik/;{k in gs vfLrRokr vlysY;k lHkklnk e/kwufuoMkos vls ueqn dj.;kr vkys- ppkZvarh loZ lHkklnke/kwu JhvfnukFk cloarjko lkaxos ;kaps uko cLojkt ¼jktw½ xqjiknIik ;sjVs;kauh lqphr dsys- R;kauk vuqeksnu Jh jkts’oj oStukFkIikcqds ;kauh fnys- mik/;{kinklkBh nqljs dk.krs gh ukao lqfpr dsysulY;keqGs Jh- vfnukFk clrarjko lkaxos ;kaps ,deso ukaomik/;{k inkdjhrk vlY;keqGs R;kaP;k ukaokyk lokZuwers eatwjhns.;kr vkyh-”32)From the above notice dated 26.6.2021, it is apparent that themeeting was called for holding discussion on the subject of preparing the WP 11919/2023 & Anr.38plan of election and in the meeting which was called by notice dated26.6.2021 an unopposed election was conducted on 7.7.2021. The meetingwas not called for holding elections but for discussion to hold elections. Noelection programme was published. Nominations were not invited. Nobodyhas filed nomination and unless the election programme is published, noelections could have been held in a general body meeting called for onlypreparing the plan of election. In the instant case, no notice for election isissued, no formal process of declaration of election programme was followedas had been taken place in the case of C.R. No. 1420/2019. It is contendedthat all the heads of the institution participated in the said General Bodyand only Governing Body elected in C.R. No. 1420/2019 was absent.However, the appellate authority has observed that the appellant in changereport has examined three witnesses and all have admitted that no electionprogramme was declared in writing and everything was done on oralinstructions of founder member. The General Body meeting called by thenotice dated 26.6.2021 is also not in terms of Clause (c) of the GeneralBody rules and is quoted at para no.23 of this Judgment.33)It is also required to be noted that the earlier C.R. No. 1420/2019was pending before the appellate authority and had not attained finality.The term of Managing Committee reported in C.R. No. 1420/2019 had notexpired. No permission was taken from the authorities to hold election asappeal was pending on 7.7.2021. In view of the acceptance of C.R. No.1420/2019 and also for the reason that the elections held with regard toC.R. No. 596/2021 is not by fair process and not in accordance with theconstitution of the trust, the said C.R. is rightly rejected by both the WP 11919/2023 & Anr.39authorities below. 34)The submissions made as regards the provisional acceptance of theC.Rs., it is required to be noted that the acceptance or rejection of theprovisional C.Rs. are not relevant as it is the subject to final orders and theprovisional acceptance does not give right to the committee provisionallyaccepted. So also, the allegation of misappropriation of funds cannot begone into while accepting or rejecting election nomination. The petitionerscan take such recourse by an independent proceedings against allegationsof misappropriation as is available under the law for removal of trustees.Unless there is clear disqualification incurred on account of orders passed bythe authorities under the Maharashtra Public Trust Act, the respondentscannot be barred from contesting the elections. Thus, the Jt.C.C. has rightlyheld that this is not the case for the interference in the impugned orderpassed by the authority below i.e. Dy.C.C. Latur and as such, both the writpetitions fail and are liable to be dismissed. Hence, I answer point No. 1accordingly in this Writ petition.CONSIDERATION OF COMMON POINT IN BOTH W.Ps.35)In both the writ petitions, the the common point No. 2 that whetherthe authorities who decided C.R. No. 1420/2019 and C.R. No. 596/2021were biased in deciding the above C.Rs. and whether the decisions taken bythe authorities are unlawful on account of bias against the petitioners. 36) In this regard, it is to be noted that on 7.7.2022 the C.C., Mumbai inP.T.R. No. F/52/Latur, while deciding transfer application bearing Appln. No.CC/44/2022 under rule 36 (iii) of the Maharashtra Public Trust Act has WP 11919/2023 & Anr.40observed in para No. 17 as under :-“17....It is seen from the reply that following transferapplications were filed by the applicants -(1)M.A. No. 94/2013 before the P.D.J. Latur to transferM.C.A. No. 78/2012, 79/2012, 80/2012 and 26/2011 to anyother Court.(2)Transfer petition No. 2/2014 before the Joint CharityCommissioner to transfer the Inq. No. 167/2014 fromDeputy Charity Commissioner to any other Deputy CharityCommissioner.(3)Transfer Application No. 145/2019 before the JointCharity Commissioner to transfer C.R. No. 1420/2019 fromthe file of Deputy Charity Commissioner to any other DeputyCharity Commissioner.(4)Transfer Petition No. 146/2019 before the Joint CharityCommissioner for transferring the proceeding from DeputyCharity Commissioner to any other authority.(5)Transfer Application No. 31/2021 for transferring theAppeal No. 10/2021 pending before the Joint CharityCommissioner, Latur to any other authority. Accordingly, thatAppeal No. 10/2021 was transferred to the Joint CharityCommissioner, Mumbai.”37)From the above order, it is apparent that the petitioners have filedvarious transfer proceedings against different officers including the judicialofficers. The petitioners have initiated Contempt Petition No. 203/2022seeking initiation of action against Dy.C.C. The contempt notice was issuedbecause this Court had directed the Dy.C.C. to provisionally accept the C.R. WP 11919/2023 & Anr.41No. 596/2021. However, the Dy.C.C., Mumbai in view of the conflictingorders, one from the appellate authority in C.R. No. 1420/2019 of status-quo and one by this Court directing to accept the provisional C.R. No.596/2021, had declined to record C.R. No. 596/2021 provisionally andtherefore, this Court had issued contempt notice to the Dy.C.C. Apology wastendered by the Dy.C.C. to this Court. The Division Bench of this Court videorder dated 27.4.2022 in Contempt Petition No. 203/2022, while disposingof the Contempt Petition, has observed as under :-“13.The Deputy Charity Commissioner is directed topass a fresh order within two weeks from today. It is madeclear that merely because this Court has directed theDeputy Charity Commissioner to accept change reportsubmitted by the petitioner on provisional basis undersection 22 (2) of the Act, that would not mean a direction toaccept the change report submitted by the petitioner withoutgoing into merits and also the maintainability of the changereport submitted by the respondents. The Deputy CharityCommissioner shall consider the objections that are alreadyraised by the objectors and that would be raised during theargument and shall pass order in accordance with law on thesaid provisional change report, on its merit.”38)Thus, this Court having noticed that although earlier directed toaccept C.R. No. 596/2019 provisionally, had permitted the Dy.C.C. to passorder in accordance with law on it’s own merits. Thereafter, the petitionershave filed various transfer applications before various authorities and thematter had travelled to Supreme Court. 39)On 7.6.2022 the Hon’ble Supreme Court passed order in Petition (s)for Special Leave to Appeal (c ) Diary No. 15900/2022, as under :-“Permission to file the Special Leave Petition (s) isgranted. WP 11919/2023 & Anr.42Having heard the learned counsel for the respective parties,we direct the Deputy Charity Commissioner, before whomthe Change Report Nos. 1420 of 2019 and 596 of 2021 arepending, to decide and dispose of the same in accordancewith law and on its own merits, after giving opportunity to allconcerned, at the earliest and preferably within threemonths from the date of receipt of this order.The concerned parties are directed to cooperate withthe Deputy Charity Commissioner for early disposal of theaforesaid Change Reports. If any of the parties try to delaythe hearing of the matter, it will be open to the DeputyCharity Commissioner to proceed further with the ChangeReports ex-parte after passing a reasoned order. With the above observations and directions, theSpecial leave Petitions are disposed of.”40)Thereafter, another transfer application was filed before the appellateauthority and the same was finally dealt with by this Court in Writ PetitionNo. 7138/2022 and passed order dated 12.7.2022, wherein at para No. 15,this Court observed as under :-“15.Though the transfer application, as stated by thelearned advocate Mr. N.P. Patil Jamalpurkar was drafted on18.5.2022 but was not till then filed or registered, the factremains that the Supreme Court had passed the order on7.6.2022 whereas this transfer application was alreadydrafted on 18.5.2022. If such was the state of affairs, it notwhile passing the order by the Supreme Court at least at theend, the petitioner could have hinted at the perception hewas carrying about the impartiality about the DeputyCommissioner, to whom the direction was given by theSupreme Court to decide the Change Report finally within astipulated time of three months. That opportunity was notavailed of by the petitioner for whatever reasons best knownto him.”41)The order passed by this Court in Writ Petition No. 7138/2022 dated12.7.2022 was challenged before the Supreme Court and the Hon’bleSupreme Court vide order dated 29.7.2022 in Petition(s) for Special Leave WP 11919/2023 & Anr.43to Appeal (C) No. (s). 12756/2022 has observed as under :-“Mr. Dama Seshadri Naidu, learned SeniorAdvocate, appearing on behalf of the petitioner hasstated at the Bar that, as such, the petitioner does notallege any further mala fides against the DeputyCharity Commissioner before whom the proceedingsare pending. It is submitted that, at the relevant time,considering the fact situation there was someapprehension on the part of the petitioner whichprompted him to file an application for transfer, whichthe petitioner does not press. He has stated at the Barthat the petitioner has full faith and trust in the DeputyCharity Commissioner before whom the proceedingsare pending. Mr. Naidu, learned Senior Advocate, oninstructions, seeks permission to withdraw the presentSpecial Leave Petition.Permission is, accordingly, dismissed.The Special Leave Petition stands dismissed aswithdrawn.”42)From the above noted facts, it would be clear that the petitionershave filed multiple applications for transfer notwithstanding that there isdirection by the Supreme Court to Dy.C.C. to decide the matter on meritsand so also in subsequent orders before Supreme Court, the petitionershave submitted that they do not allege any further mala-fide againstDy.C.C. Notwithstanding submissions made before the Supreme Court,allegations are raised against Dy.C.C., so also against Jt.C.C., which needsto be rejected. After having conceded the above position before the Hon’bleSupreme Court, it is not open to the petitioners to re-agitate the grievanceof mala-fide. 43)It is required to be noted that on the merits of the matter this Courthas not found any error in the impugned orders of Dy.C.C. and Jt.C.C.. WP 11919/2023 & Anr.44Thus, the order passed by both the authorities are lawful and both the writpetitions are dismissed by answering the above common point accordinglyby giving following directions. 44)The term of the managing committee as reported in C.R. No.1420/2019 is coming to an end on 4.5.2024. The C.C., Mumbai is directedto depute a responsible senior level Officer to conduct the elections ofMahatma Basweshwar Educational Society, Latur by following the dueprocess of law. The election process to commence before one month of theexpiry of the term of the Managing Committee in C.R. No. 1420/2019 i.e.from the first week of the April, 2024 and the election process shall beconcluded by 1st week of May 2024 so as to ensure fair and independentelections of the trust. [ARUN R. PEDNEKER J.]SSC/