Murlidhar vs State Of Maharashtra
2010 Latest Caselaw 130 Bom

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH, NAGPUR




                                                        
                            WRIT PETITION NO.3034/2010

    PETITIONERS:-        1. Murlidhar s/o Janrao Kale,
                            Aged about 60 years, Vice President,
                            Sategaon Education Society, Sategaon.




                                                       
                         2. Bhaurao s/o Narhari Wadatkar,
                            Aged about 65 years, Member, Sategaon
                            Education Society, Sategaon.




                                             
                         3. Kamal w/o Janrao Gawande
                            Aged about 55 years, Member,
                                
                            Sategaon Education Society, Sategaon.

                            All R/o Sategaon, Tq. Anjangaon Surji,
                               
                            Distt. Amravati.

                         4. Pramila Sahebaro Bhingare,
                            Aged about 45 years, Member,
                            Sategaon Education Society, Sategaon,
           

                            R/o Wadgaon, Tah. Achalpur, Distt. Amravti.
        



                                    ...VERSUS...

    RESPONDENTS :- 1. State of Maharashtra, through
                      Secretary, School Education Department,
                      Mantralaya, Mumbai.





                         2. The Deputy Director of Education,
                            Amravti Division, Amravti.

                         3. The Education Officer (Secondary),





                            Zilla Parishad, Amravati.

                         4. The President,
                            Sategaon Education Society,
                            Sategaon, Tah. Anjangaon Surji, Distt. Amravati.




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    ---------------------------------------------------------------------------------------------------
                            [Shri S.W. Sambare, Adv. for petitioners]
                            [Shri P.D. Kothari, AGP for respdt. Nos.1 to 3]




                                                                         
    ---------------------------------------------------------------------------------------------------

                                                   CORAM :-          S.A. BOBDE AND
                                                                     A.B. CHAUDHARI, JJ.




                                                                        
    Date of reserving the judgment                              :-    18.08.2010
    Date of pronouncing the judgment                            :-    29.10.2010


    JUDGMENT                (PER : A.B. CHAUDHARI, J.)

1.

Heard. Rule. Rule returnable forthwith. Heard finally by

consent of the learned Counsel for the rival parties.

2. The present petition involves the following two questions :

(i) Who is the authority to decide which trustee or a

board of trustee or groups of trustees or persons connected with the

trust are entitled to administer the Trust, its institutions or schools or

colleges and whether the Deputy Director of Education or any other

Education Authority will have jurisdiction to decide such issue or

authorize the trustees or board of trustees or group of trustees to look

after the administration of the schools run by a Trust pending disposal

of the change reports before the Assistant Charity Commissioner or

even in case of dispute ?

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(ii) Whether there is any power with the Deputy Director

of Education or any other Education Authority or the Education Officer

to withdraw the administrative or financial powers of head of the

institutions/schools and authorize any other or senior most teacher

from the same school and if so, in what circumstances ?

3. There is no dispute that Sategaon Education Society,

Sategaon is a registered Society/Trust under the provisions of the

Societies Registration Act as well as the Bombay Public Trusts Act,

1950 and the said Society is a Education Society/Trust. There were in

all eight trustees as per P.T.R. register of the Trust, which runs two

grant-in-aid schools, recognized by the Government, namely, J.D. Patil

High School and Junior College, Sategaon and Smt. Kokilabai Gawande

High School at Turkhed. Out of eight trustees, Secretary Shri Vasant

Mankar died on 11.11.2008 and thus as per P.T.R. entries, seven

trustees remained after the death of Shri Vasant Mankar. It appears

that three trustees are under the group of President Shri N.N. Mankar

and remaining four trustees are under the group of Vice-President

Shri M.G. Kale. The group of Vice-President admitted Smt. Rekha

Mankar the widow of the the then Secretary Shri Vasant Mankar in the

Trust on the post of Secretary and accordingly he filed the change

report with the office of the Assistant Charity Commissioner, reporting

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the change. The group of President filled up the vacant post of

Secretary; replaced few trustees by other persons and filed change

report vide Change Report No.119/2008.

4. The dispute sparked with the group of Vice-President

questioning the legality and validity of promotion of one Ku. U.P.

Khadse on the post of Headmistress on the ground that the resolution

to appoint her was a false and fake resolution shown by the group of

President and since majority of the trustees i.e. four trustees including

the trustee Shri M.G. Kale i.e. Vice-President were not party to the said

alleged resolution, they did not approve the said appointment. The

alleged appointment was made by the trustees, who were not

competent and legally entitled to appoint her. The Vice-President Shri

M.G. Kale and his group then passed a resolution to relieve Ku. U.P.

Khadse from the administrative and financial powers and to assign the

same temporarily to supervisor of the school and in terms of the said

resolution they submitted proposal dated 13.7.2009 to the Education

Officer requesting him to withdraw the powers. The Education Officer

approved the said resolution by his order dated 15.7.2009, but on

11.8.2009, he cancelled the said order dated 15.7.2009 and again

restored the said order dated 15.7.2009 on the same date. In Writ

Petition No.3983/2009 decided on 11.1.2010, this Court found that the

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said Headmistress Ku. U.P. Khadse was not heard when the Education

Officer withdrew her administrative and financial powers and

therefore, directed the Deputy Director of Education to hear all the

concerned parties and to pass appropriate orders. The Deputy Director

of Education thereafter pursuant to the said directions heard the

matter upon remand and recorded a finding that the trustees allegedly

elected in the election on 16.3.2008 shown in the Change Report

No.119/2008 are the authorized trustees i.e. the group led by the

president to look after the administration of the school till the decision

of the Assistant Charity Commissioner, Amravati and consequently, the

proposal submitted by the group of Vice-President to withdraw the

administrative and financial powers of Ku. U.P. Khadse was rejected.

The only reason which impressed the Deputy Director of Education was

that the group led by the Vice-President did not even claim to have

held any election as against the group led by the President which

claimed to have held election on 16.3.2008 and that is why the elected

body under the said election dated 16.3.2008 was entitled to

administer the affairs of the school till the decision of the Assistant

Charity Commissioner. The review application that was filed before the

same authority stood rejected. Thereafter, this petition has been filed

in this Court.

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5. Answer to question No.1 :- There is no dispute that the

Sategaon Education Society is a registered Public Trust under the

provisions of the Bombay Public Trusts Act, 1950. Section 22 of the

Bombay Public Trusts Act reads thus :

"22. Change (1) 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, 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

Registration Office where the register is kept. Such

report shall be made in the prescribed form.

[(1A)] Where the change to be reported under

sub-section (1) relates to any immovable property, the trustee shall, along with the report, furnish a memorandum in the prescribed form containing the particulars (including the name and description of the

public trust) relating to any change in the immovable property of such public trust, for forwarding it to the Sub-Registrar referred to in sub-section (7) of section 18.

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Such memorandum shall be signed and verified in the prescribed manner by the trustee or his agent

specially authorised by him in this behalf.

(2) For the purpose of verifying the

correctness of the entries in the register kept under section 17 or ascertaining whether any change has occurred in any of the particulars recorded in the register, the Deputy or Assistant Charity

Commissioner may hold an inquiry in the prescribed manner.

(3) If the Deputy or Assistant Charity Commissioner, 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), is

satisfied 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 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.

Any such finding shall be appealable to the Charity

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Commissioner. The Deputy or Assistant Charity Commissioner 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 or applications 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 on occurrence of a change or any

cancellation of entries, shall be final and conclusive.

Whenever an entry is amended or the

trust is removed from the register under sub-section (3), the Deputy or Assistant Charity Commissioner, as the case may be, shall forward the memorandum furnished to him under sub-section (1A), after

certifying the amended entry or the removal of the

trust from the register to the Sub-Registrar referred to in sub-section (7) or section 18, for the purpose of filing in Book No.1 under section 89 of the Indian

Registration Act, 1908, in its application to the State of Maharashtra."

6. Reading of the above provisions clearly shows that the

change report has to be filed when any change occurs in any of the

entries recorded in the register maintained under Section 17 of the

Bombay Public Trusts Act. Needless to say that the change in the

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board of trustees or a trustee for whatever reason is required to be

reported under Section 22 of the Bombay Public Trusts Act. Such a

change report/enquiry is then registered and after making necessary

enquiry the Assistant Charity Commissioner makes an order either

accepting the change or rejecting the same. Thus, the authority to

decide as to who are the trustees of the Trust or which trustees should

constitute the board of trustees of a Trust and consequently, which

trustees or board of trustees should run the administration of the

institutions of the Trust is within the jurisdiction of the Assistant Charity

Commissioner under the provisions of the Bombay Public Trusts Act,

1950.

7. In the instant case, the group of Vice-President claimed

that they are in majority i.e. four trustees on one side while the group

of President claimed that they have inducted new trustees in the

vacant post of trustees after removing some trustees from the

executive committee by passing resolution (alleged election) on

16.3.2008 i.e. change report No.119/2008. Perusal of the said change

report shows that out of earlier six trustees five have been removed

and replaced by new trustees. This change report is in dispute so also

the change report filed by the group of Vice-President by which the

widow of Shri Vasant Mankar i.e. Smt. Rekha Vasant Mankar was

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inducted as a trustee/secretary by resolution dated 13.12.2008, which

is disputed by the rival group. Thus, both the change reports are now

pending before the Assistant Charity Commissioner for approval. It is,

thus, clear that these changes shown by both the rival groups clearly

fall within the Section 22 of the Bombay Public Trusts Act and it is the

Assistant Charity Commissioner who has jurisdiction to decide the

validity thereof.

Section 80 of the Bombay Public Trusts Act, 1950 reads

thus.

"80. Bar of Jurisdiction

Save as expressly provided in this Act, no Civil Court shall have jurisdiction to decide or deal

with any question which is by or under this Act to be decided or dealt with by any officer or authority under

this Act, and in respect of which the decision or order of such officer or authority has been made final and conclusive."

8. Perusal of Section 80 of the Bombay Public Trusts Act

shows that the jurisdiction to decide the validity of the elections,

changes in the board of trustees or trustees having thus been

conferred with the Assistant Charity Commissioner, the legislature has

imposed bar against entertaining a suit by Civil Court. There is no

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provision by which the Education Officer or the Deputy Director of

Education or the Director of Education has any authority or power to

decide these issues. In the case of Jagatnarayansingh

Swarupsingh Chithere and others...Versus...Swarupsingh

Education Society and another, reported in 1980 Mh.L.J. 372 this

Court held that the extent of jurisdiction under Section 22 of the Act is

not limited to the only factum of change but it extends its legality and

validity as well.

9. In the light of the above discussion, we hold that the

Deputy Director of Education had no authority, power or jurisdiction to

decide which board of trustees or trustees shall run the management

of the Trust and the Schools but the jurisdiction is with the Assistant

Charity Commissioner. We therefore hold that the order dated

30.1.2010, passed by the Deputy Director of Education, Amravati

Division, Amravati holding that the elected Management led by

President in the election on 16.3.2008 and the members shown in the

Change Report No.119/2008 are the authorized trustees to look after

the management of the Trust and the school, is without any authority

and without jurisdiction. It is noteworthy that this Court while remitting

the matter to the Deputy Director of Education while deciding Writ

Petition No.3983/2009 on 11.1.2010 had never asked the Deputy

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Director of Education to decide this question as to who shall run the

Trust and its institutions.

10. The next question that arises for consideration is the

modality by which the Assistant Charity Commissioner can recognize

or issue directions as to the trustees, who shall administer the Trust

and its institutions/schools/colleges. Sections 41 A of the Bombay

Public Trusts Act, 1950 read thus.

"41A. ig Power of Commissioner to issue directions for proper administration of the trust

(1) Subject to the provisions of this Act, the Charity Commissioner may from time to time issue

directions to any trustee of a public trust or any person connected therewith, to ensure that the trust is properly

administered, and the income thereof is properly accounted for or duly appropriated and applied to the objects and for the purposes of the trust; and the Charity

Commissioner may also give directions to the trustees or such person if he finds that any property of the trust is in danger of being wasted, damaged alienated or wrongfully

sold, removed or disposed of.

(2) It shall be the duty of every trustee or of such person to comply with the directions issued under sub-section (1).

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11. This Court has dealt with the said provision of Section 41 A

of the Bombay Public Trusts Act in some cases. We propose to

recapitulate a few. In the case of Nathmal Kisanlalji Goenka and

another...Versus...Asstt. Charity Commissioner, Akola and

another, reported in 1994 Mh.L.J. 303 a single judge of this Court

held that the power under Section 41 A of the Bombay Public Trusts Act

can be exercised to direct the trustees or the persons connected with

the Trust to hold elections even by secret ballot. In the case of Asaram

Bhimrao Shinde and others...Versus...State of Maharashtra

and others, reported in 2001 (4) Mh.L.J. 548 and in the case of

Dattatraya s/o Mahadeo Hiware and others...Versus...Arjun s/o

Sambhaji Shinde and others, reported in 2007 (1) Mh.L.J. 48 a

single Judge of this Court held that there is no power in the Assistant

Charity Commissioner in exercise of power under Section 41 A of the

Bombay Public Trusts Act to either remove the trustees or appoint any

new trustees or board of trustees.

In First Appeal No.354/1998 decided on 28.8.1999 a

single Judge of this Court held thus :

"It goes without saying that according to the present practice followed during the pendency of the enquiries, unless there is an order under Section 41 - A of the Act, putting somebody other than the one whose

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name is entered in the register incharge of the Trust, it is only those persons whose names are entered in the

register can continue to manage the affairs of the trust."

12. From perusal of the provision of Section 41 A of the

Bombay Public Trusts Act, we find that the Charity Commissioner is

empowered to issue directions to any trustee or a person connected

therewith to ensure that the trust is properly administered.

ig Since

schools, colleges and institutions are run by public trusts, it follows

that any such directions will ensure that they are properly

administered either during the pendency of disputed change reports or

as the case may be. We, therefore, hold that an order under

Section 41 A of the Bombay Public Trusts Act can be passed to direct or

recognise a trustee/trustees/Board of Trustees or the persons

connected with the trust whose names are either entered or not

entered in the P.T. Register maintained under Section 17 of the Act,

pending disputes between them or even otherwise. We, however, do

not agree with the proposition stated in judgment dated 28.8.1999 in

First Appeal No.354/1998, that 'somebody' other than whose name is

to be found in P.T. Register can be empowered under Section 41 A of

the Bombay Public Trusts Act. Section 41 A of the Bombay Public

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Trusts Act speaks of only 'trustees' or the 'persons connected

therewith' and not 'somebody'. It is also not possible to agree with the

statement that in the absence of any order under Section 41 A of the

Bombay Public Trusts Act, only those persons whose names are

entered in the register can continue to manage the affairs of the trust.

It is a matter of common experience that persons shown as trustees in

the register i.e. Schedule - I under Rule 5 of the Bombay Public Trusts

Rules, 1951 are shown to exist as trustees even though their

tenure/term as trustees as indicated in the bye-laws, memorandum of

association or Rules or regulations had come to an end years back or

such names are hardly one or two or who are unable to run the trust

for one or the other reason. Therefore, merely because names of such

persons whose names exist in Schedule - I and whose term had

expired or for any other reason they cannot function as trustees or

fresh elections have been held under a particular fact situation, such

trustees alone would not be entitled to continue to manage the affairs

of the Trust. In our opinion, each case will have to be decided on the

facts, materials and evidence available on record and by applying the

law. The change reports in respect of elections, filling up of vacancies

of trustees, schemes are filed with the Assistant Charity Commissioner

and every endeavour should be made by the Assistant Charity

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Commissioner to decide such change reports expeditiously and in case

of any dispute amongst the trustees, power under Section 41 A of the

Bombay Public Trusts Act can be invoked either suo motu by the

Assistant Charity Commissioner or on application of the trustees or the

persons connected with the Trust or the Education or other authority

for issuance of directions in the matter of administration of the Trust

and its institutions. In the case in hand, the Deputy Director of

Education ought to have directed the parties before him to either get

the change reports decided one way or the other or get directions

under Section 41 A of the Bombay Public Trusts Act as to the

persons/trustees authorized to manage the Trust and its institutions.

13. Answer to question No.2 :- The learned Assistant

Government Pleader placed before us the following two circulars as to

the exercise of power by the education authorities.

(i) No. Amasha/4179/32310/K, Directorate of Education,

Maharashtra State, Pune-1, dated 24.2.1986.

(ii) No. Amasha - 4179-K-Pune-1, dated 8.1.1988.

14. Rule 3 (1) (2) (3) (4) and (5) of the Maharashtra Employees

of Private Schools (Conditions of Service) Rules, 1981 provide for

qualifications and appointment of Head. There is a procedure given in

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details therein regarding qualifications, experience and the procedure

required to be followed. Rule 3(6) of the Maharashtra Employees of

Private Schools (Conditions of Service) Rules, 1981 empowers the

Eduction Officer/Deputy Director of Educations thus :

"3 (6) - The Education Officer or the Deputy Director shall direct the management to cancel the appointments made without following the procedure laid

down in this rule.

15.

Reading of these provisions clearly show that the Education

Officer/Deputy Director can direct the management to cancel the

appointments made only when the procedure laid in Rule 3 of the

M.E.P.S. Rules is not followed. Thus, there is no power in these officers

to cancel/suspend or withdraw the approval or administrative and

financial powers of a Head master for any other reason than those

mentioned in Rule 3(1) to (5) of the M.E.P.S. Rules; and therefore in

case of dispute amongst the trustees about such appointment, power

under Rule 3(6) of the M.E.P.S. Rules cannot be exercised. Both the

above Circulars dated 24.6.1986 and 08.01.1988 have repository of

power only under Rule 3(6) of the M.E.P.S. Rules and thus action to be

taken as mentioned in these Circulars will be only when the

appointment is found to be in breach of Rule 3(1) to (5) of the M.E.P.S.

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Rules. In the case in hand, there are no allegations about the breach

of Rule 3(1) to (5) of the M.E.P.S. Rules, but they are about the legality

and validity of the status of the trustees/Board of trustees and thus

power under Rule 3(6) of the M.E.P.S. Rules and the said Circulars

cannot be exercised. Consequently, the impugned order would be bad

in law. In the result, we make the following order.

ORDER

(i) Writ petition No.3034/2010 is partly allowed.

(ii) The impugned order dated 30.1.2010, Annexure -G is

quashed and set aside.

(iii) Ku. U.P. Khadse, Headmistress shall continue to

function as such till making of any direction under Section 41 A of the

Bombay Public Trusts Act, 1950 or decision of change reports regarding

Board of Trustees/Trustees of the parent society.

                    (iv)    No order as to costs.





                     JUDGE                                       JUDGE





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