8] Smt. Simantabai Bhimrao ... vs Tq. & Dist. Latur
2010 Latest Caselaw 233 Bom

                               1             WP.No. 9165 of 2010


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                           
                 APPELLATE SIDE, BENCH AT AURANGABAD




                                                   
                     WRIT PETITION NO. 9165 OF 2010



     1]   Rajaram S/o Vithoba Kadam,




                                                  
          Age 65 years, Occu. Agriculture,
          R/o Sirur Wanjarwada
          Tq. Nilanga, Dist. Latur.
          And Secretary of
          Shri sant Kabir Bahu-uddeshiya




                                    
          Sikshan Prasarak Mandal,
          Sirol (Va) Tq. Nilanga,
                     
          Dist. Latur.

     2]   Sambhaji S/o Laxmanrao Tekale,
                    
          Age 55 years, Occu. Agriculture,
          r/o Vikramnagar, Latur
          Tq. & Dist. Latur.

     3]   Rohidas S/o Tulshiram Kadam
      

          Age 55 years, Occu. Agriculture
          and Joint Secretary of
          Shri sant Kabir Bahu-uddeshiya
   



          Sikshan Prasarak Mandal,
          Sirol (Va) Tq. Nilanga,
          Dist. Latur





     4]   Yadavrao S/o Havgirao Dongaonkar,
          Age 58 years, Occu. Agriculture
          R/o Nayee Abade Udgir,
          Tq. Udgir, Dist. Latur.

     5]   Marotirao S/o Narsingrao Selalkar,





          Age 62 years, Occu. Agriculture
          r/o Sidharath Society, Udgir,
          Tq. Udgir, Dist. Latur.

     6]   Smt. Padmavati Sambhaji Selalkar,
          Age 63 years, Occu. Household,
          r/o Nayee Abadee Udgir,
          Tq. Udgir, Dist. Latur.

     7]   Smt. Rukminabai Ganpati Kadam
          Age 55 years, Occu. Household,
          r/o Sirol (Wanjarwada)
          Tq. Nilanga, Dist. Latur.


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                                   2               WP.No. 9165 of 2010


     8]    Smt. Simantabai Bhimrao Waghmare,




                                                                                
           Age 59 years, Occu. Household
           r/o Sirol (Wanjarwada)
           Tq. Nilanga, Dist. Latur.                                     ...Petitioners




                                                        
           Versus

     1]    The Joint Charity Commissioner,
           Latur region, Latur.




                                                       
     2]    The Deputy Charity Commissioner,
           Latur region, Latur.

     3]    Apparao s/o Sadhuji Gaikwad,




                                       
           Age 68 years, Occu. Pensioner,
           r/o Prakash Nagar, Latur
                        
           Tq. & Dist. Latur                                        ...Respondents

                                          .....
                       
     Mr.V.D. Salunke, advocate for petitioners

     Mr. K.J. Ghute Patil, A.G.P. for respondents /State.
      

                                          .....

                                                  CORAM: S. S. SHINDE, J.

                                                  DATED:    1st DECEMBER, 2010





     JUDGMENT :-

Heard Counsel for the parties, Rule. Rule made returnable forthwith.

By consent matter is taken up for final hearing.

2 This Writ Petition takes exception to the order dated 11th

September, 2009, passed by the learned Joint Charity Commissioner,

Latur region, Latur.

The brief facts of the case as disclosed are as under :-

3 The petitioners are the members and trustees of Shri Sant Kabir

Bahu-Udeshiya Shishan Prasarak Mandal, Sirol (Va), Tq. Nilanga,

Dist. Latur. The said Trust is registered as educational trust.

Earlier in the year 2005 elections of the trust were held. The said

elections were held for one term which is of three years. Though the

Committee was elected but two groups had filed change reports

bearing No. 494 of 2005 and 558 of 2005. The dispute between the

parties came up before this Court in Writ Petition No. 4969 of 2007.

This Court directed the petitioners and the respondent No. 3 that they

should remain present before the Deputy Charity Commissioner, Latur

region, Latur on 18th February, 2008. The Deputy Charity

Commissioner, Latur region, Latur was directed to decide both the

change reports within two months.

The respondent No. 2, as per the directions of this Court

pleased to decide the change reports by order dated 14th February,

2008, thereby rejected both the change reports. In the said order, it

was held that there are 36 members of the trust. The Inspector from

the office of respondent No. 2 was appointed to held the elections of

the trust after the appeal period is over. Accordingly, Returning Officer

conducted the election and same were completed/held on 19th August,

2008. In the said election Petitioner No. 2 was elected as Secretary,

Petitioner No. 3 was elected as Joint Secretary, and petitioner No. 4 as

Treasurer. Whereas other petitioners are elected as members of the

committee. Accordingly, change report No. 578 of 2008 was submitted

under the prescribed schedule.

4 The said change report No. 578 of 2008 is pending before the

authority. However, both the applicants in the earlier change reorts i.e.

498 of 2005 and 578 of 2005 did file appeal Nos. 15 of 2008 and 29 of

2008 before the Joint Charity Commissioner, Latur region, Latur.

However, both the appeals were rejected by common Judgment and

order dated 11th September, 2009. However, the respondent NO. 1

herein i.e. Joint Charity Commissioner, Latur region, Latur issued

directions to the Deputy Charity Commissioner, Latur region, Latur to

issue publication inviting applications for membership and other

directions are also given by the respondent No. 1 herein. The said

order is challenged in this Writ Petition.

5 This Writ Petition was heard before this Court on 5th October

2010, when this Court was pleased to issue notices to the

respondents. In pursuance to the notices issued to the respondents.

The learned A.G.P. Mr. K.J. Ghute Patil, appeared on behalf of

respondent Nos. 1 & 2. This Court granted ad-interim relief in terms of

prayer clause 'B',

Today the matter is taken up for hearing, after service on the

respondents is complete. However, inspite of service none appears for

the respondent No. 3.

6 The Counsel appearing for the petitioner submitted that the

order passed by the respondent No. 1 has traveled beyond the prayers

and pleadings in the appeal. The learned Counsel further submitted

that the various directions given by the respondent No. 1 are while

dismissing the appeals, and such order is impermissible under law. It

is further submitted that in pending appeals the Joint Charity

Commissioner, Latur region, Latur has given sweeping directions,

thereby affecting substantial rights of the 36 members of the trust and

also elected members of the trust. They were neither joined as a party

or no notices were issued to them. Therefore, learned Counsel would

submit that such order is impermissible in law. The learned Counsel

appearing for the petitioners invited my attention to the pleadings and

grounds taken in the petition and annexures thereto and submitted that

the impugned Judgment and order deserves to be quashed and set

aside.

7 On the other hand, the learned A.G.P. appearing for the State

submitted that the directions issued by the respondent No. 1 i.e. Joint

Charity Commissioner, Latur region, Latur are keeping in mind the

interest of the trust, and therefore, no any infirmity can be attributed to

the order passed by the learned Joint Charity Commissioner, Latur

region, Latur.

8 I have given due consideration to the rival submissions and I

have carefully gone through the pleading in the petition and annexures

thereto, I am of the considered opinion that the impugned Judgment

and Order passed by the Joint Charity Commissioner, Latur region,

Latur i.e. respondent No. 1, not only suffers from non application of

mind, but said order is passed utter disregard and in violation of the

principles of natural justice. The Joint Charity Commissioner, Latur

region, Latur, while issuing the various directions has not taken into

consideration that such directions in a dismissed appeals are going to

be affected substantially / drastically on the elected members of the

trust and also on 36 members of the trust, and therefore, those

persons were necessary parties before such order came to be passed.

The impugned Judgment and order was passed without hearing to

the newly elected members and also 36 members of the trust, is in

violation of basic principles of natural justice and such order cannot be

sustained even for a moment. It would be appropriate to reproduce

here-in-below the operative part of the order passed by the Joint

Charity Commissioner, Latur region, Latur.

"I] Appeal No. 15/08 and 29/08 are dismissed. The order passed by the Lower authority declaring 36 valid members in para No. 19 of the Judgment and directions issued by Lower authority to hold election of Managing committee is set aside.

II] Deputy Charity Commissioner, Latur is directed to induct categorywise members of the trust as per bylaws. He can issue

public notice before the date of induction of new members at the

expenses of trust.

III] Deputy Charity Commissioner, Latur is directed to

complete induction of members within one month from the date of this order.

IV] After induction of members the Deputy Charity Commissioner, Latur is directed to hold election of managing

committee, in accordance with bylaws of the trust, within a period of 3 months from the date of this order.

V] The managing committee of the Trust on record is directed to deposit Rs. 20,000/- out of trust fund towards

expenses of process of induction of members and election of

managing committee within 15 days from the date of order.

VI] Copy of this order be kept in file of appeal No. 29 of

2008."

9 Mere perusal of the operative part of the order passed by the

respondent No. 1 would show that the appeal No. 15 of 2008 and 29 of

2008 are dismissed , and in such a dismissed appeals various

directions are given from clause No. (II) to clause No. (VI). Such

drastic directions are given without thinking that those directions will

substantially affect the rights of the parties, including the newly elected

members of the trust and also 36 members of the trust. Therefore,

before passing such order, the Joint Charity Commissioner, Latur

region, Latur should have directed the appellants to add the 36

members of the trust as party respondents in pending proceedings. It

is not in dispute that the elections of the trust have held under the

control of returning officer who was appointed by Deputy Charity

Commissioner, Latur region, Latur. It is not also in dispute that in

earlier round of litigation the parties approached to this Court and this

Court directed Deputy Charity Commissioner, Latur region, Latur to

hear both the parties on change reports submitted by them and take

appropriate decision. In pursuance to the said directions the Deputy

Charity Commissioner, Latur region, Latur, rejected the change reports

and submitted by the respective parties and appointed returning officer

i.e. Inspector from his office to conduct the election of the said trust,

and accordingly, the said elections have been held and change report

in that respect is pending before the authority. Therefore, in my

considered opinion, the order passed by the Joint Charity

Commissioner, Latur region, Latur is without application of mind and

without following the principles of natural justice, and said order

deserves to be set aside.

10 In the result, the impugned order dated 11th September, 2009

passed by the Joint Charity Commissioner, Latur region, Latur is

quashed and set aside. However, the concerned authority before

whom the change report No. 578 of 2008 is pending is directed to take

a decision about the said change report expeditiously. The Writ

Petitions stand allowed in terms of prayer clause 'B'. Rule is made

absolute in above terms. The petition is partly allowed and disposed

of.

In view of the disposal of the Writ Petition, the Civil Application if

any is disposed of accordingly.

( S. S. SHINDE. J.)

SDM*9165.10WP /21210