Writ Petition No. 2351 of 2025 · Bombay High Court

Hefurther submits that admittedly there are huge vacancies in the School which are necessarily to be filled in for smooth functioning of the Institution. He relies on Judgment reported in AIR 211(NOC) (Supp.) 1446 (Bom) (Murlidhar Janrao Kale & Ors Vs. Stateof Maharashtra & Ors), to buttress his submission. 9. Per contra, Mrs. M.S. Naik, learned AssistantGoverning Pleader appearing for the respondent Nos.1 to 3 and Mr.N.S. Warulkar learned Advocate appearing for the respondent No.4submit that the action of the respondent No.3 Education Officer isperfectly legal and valid. By taking us through the record of the matter it is the submission of the learned counsel for the respondents that the Education Officer was within his right to ascertain as to whether the Trustees, who have been granted permission for publication of the advertisement are in fact the recorded Trustees. In nut shell, learned counsel for the J-wp2351.25 final.odt 6/12 respondents support the impugned order.10.

We have considered the contentions canvassed by the counsels for the respective parties. The fact that elections were held on various dates as mentioned in the petition and a ChangeReport being pending before the competent authority under the Public Trusts Act are not disputed. In the backdrop of these facts, Section 22 of the Bombay Public Trusts Act, 1950 is re-produced asunder :“Section 22. Change - (1) Where any change occurs in any of the entries recorded in the register kept under section 17, the trustee shall, within 90days from the date of the occurrence of such change, or where any change is desired in such entries in the interest of the administration of such public trust, report such change or proposed change to the Deputy or Assistant Charity Commissioner in charge of the Public Trusts RegistrationOffice where the register is kept. Such reportshall be made in the prescribed form.

(1A)---------------(2)-----------------(3) If the Deputy or Assistant CharityCommissioner, as the case may be, after receiving a report under sub-section (1) and holding an inquiry, if necessary under sub-section (2), or merely after holding an inquiry under the said sub-section (2), issatisfied that a change has occurred in any of the entries recorded in the register kept under section 17 in regard to a particular public trust, [or that the trust should be removed from the register by reason of the change, resulting in both the office of the J-wp2351.25 final.odt 7/12 administration of the trust and the whole of the trust property ceasing to be situated in the State] he shall record a finding with the reasons therefor [to that effect; and if he is not so satisfied, he shall record a finding with reasons therefor accordingly]. [Every inquiry held, either upon receipt of a report undersub-section (1) or merely held under sub-section (2), shall be completed within aperiod of one year from the date of initiating such an enquiry.

Where such inquiry is not completed within a stipulated period of one year, the reasons for delay shall be recorded.][any such finding] shall [amend or delete the entries] in the said register [in accordance with the finding which requires an amendment or deletion of entries] and if appeals [***] were made against such finding. In accordance with the final decision of the competent authority provided by this Act. The amendments in the entries so made[subject to any further amendment or occurrence of a change or any cancellation of entries, shall] be final and conclusive.” 11. This Court in judgment of Chembur TrombayEducation Society and Others Vs. D.K. Marathe and Others (2002(3) Bom. C.R. 161) while dealing with the said issue held that the law with regard to the efficacy of any change brought about and its application is no more res integra. Relying on the judgment of the Apex Court reported in AIR 1993 S.C.W. 3006 (ManagingCommittee Khalsa Middle School and Another Vs.

Smt. MohinderKaur and Another) it was observed that in absence of any J-wp2351.25 final.odt 8/12 requirement in the Act that the alteration in the rules and regulations must be registered with the Registrar, it cannot be held that registration of the amendment is a condition precedent for such an alteration to come into effect. A priori, any amendment or change brought about in accordance with law would come into effect from the date of resolution of the Society to bring about sucha change.12. This proposition is fortified from the plain language of Section 22 of the Bombay Public Trusts Act. The said Sectionrequires that where any change occurs in any of the entries recorded in the register kept under Section 17, the trustee shall, within 90 days from the date of the occurrence of such change report such change to the Deputy or Assistant CharityCommissioner. This Court also deciphered the meaning of expression "occur" and observed that in the Black's Law Dictionarythe meaning of the said phrase is "To happen; to meet ones eye; tobe found or met with; to present itself; to appear”.13.

Thus, giving natural meaning to this word in Section22 coupled with the authoritative pronouncement of the ApexCourt, this Court held that when the Act does not require that registration of any change is a condition precedent to come into effect, the amendment to the constitution as well as the subsequent J-wp2351.25 final.odt 9/12 elections of the President and members of the Governing Council, would therefore come into effect from the respective resolutions of the general body. It was further held that the enquiry postulated under Section 22 is only to ascertain the factum as to whether the change has occurred or not. The resolution of the general body of the Society is sufficient to ignite the changes of amendment in the constitution as well as of electing new general body for administering the affairs of the Society. This Court also considered the aspect regarding the pendency of the change report being pending for consideration before the Charity Commissioner.

It is, thus, clear that mere pendency of change report before the CharityCommissioner would be of no avail, and therefore, as a necessary corollary, during the pendency, the Trustees who have been duly elected in the election have all rights in law to work on the respective post.14. This principle has been further enunciated in the judgment of Hislop Education Society, Nagpur Vs. Presiding OfficerUniversity College Tribunal Nagpur reported in 2009 (6) Mh.L.J.419, in which this Court considered the contentions advanced in the said matter that till the Charity Commissioner decides as to who are the Trustees, if the elected Trustees are prohibited from working as Trustees, there will be anarchy and mismanagement in the J-wp2351.25 final.odt 10/12 institutions which are run by such Trusts. In the said judgment in paragraph 14 thereof, this Court held as under :“14. In Pushpadevi M. Jatia vs. M.L. Wadhawan,(1987) 3 SCC 367.

It is in paragraph 21 as under :"21..... Where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as validity of his acts are concerned. It is enough that he is clothed with the insignia of the office, and exercises its powers and functions. The official acts of such persons are recognised as valid under the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. InGokaraju Rangaraju case, Chinnappa Reddy, J.explained that this doctrine was engrafted as amatter of policy and necessity to protect the interest of the public. He quoted the following passage from the judgment of Sir AshutoshMukherjee, J. in Pulin Behari Das V. King Emperorat p. 574:The substance of the matter is that the de facto doctrine was introduced into the law as a matter of policy and necessity to protect the interest of the public and the individual where those interests were involved in the official acts of persons exercising the duties of an office without being lawful officers.

The doctrine in fact is necessary to maintain the supremacy of the law and to preserve peace and order in the community at large. The learned Judge also relied upon the following passage from the judgment of P.Govindan Nair, J. in P.S. Menon vs. State of Keralaat p. 170:This doctrine was engrafted as a matter of policy and necessity to protect the interest of the public and individuals involved in the official acts of persons exercising the duty of an officer without actually being one in strict point of law. Butalthough these officers are not officers de jure they are by virtue of the particular circumstances, officers, in fact, whose acts, public policy requires J-wp2351.25 final.odt 11/12 should be considered valid.” 15. Thus, having considered the rival contentions, the Court in the said judgment held that the “de facto” doctrine has taken birth out of necessity to maintain a continuity of authority in management of affairs of such Societies or Trusts.

There can’t beany vacuum if there is death of trustee the function of the Trustmust go on with elected/remunerated Member as the case may be.16. If the facts of the present case are evaluated on the touchstone of the authoritative pronouncement of this Court as held above, we have no hesitation to hold that the impugned communication by the respondent No.3 can withstand the scrutiny.17. As we have stated supra, the elections of the Trustwere duly held and the change report is pending. In view of the authoritative pronouncement mentioned above and under thede facto doctrine which is born out of necessity, the Trusteeselected in the said Trust were duly empowered to act as Trusteesduring the pendency of the decision on the change report. Achange report with respect to elections held on 08/01/2023 is also pending. It, therefore, consequently follows that the respondentNo.3 had no jurisdiction to call upon the petitioner Trust to submit the PTR register as has been sought to be done. The impugned J-wp2351.25 final.odt 12/12 communication, is therefore, liable to be quashed and set aside. Inthat view of the matter, the following order is passed :