Bombay High Court
Prabhakar Waktuji Sapate vs Narayan Baburao Dhakate And 2 ... on 6 April, 2016
Bench: S.B. Shukre
J-wp497,498 & 499.16.odt 1/18
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION No.497 OF 2016
Prabhakar Waktuji Sapate,
Aged 60 years,
Occupation : Agriculturist,
R/o. At Armori, Tah. Armori,
Distt. Gadchiroli. : PETITIONER
...VERSUS...
1. Narayan Baburao Dhakate,
Aged 53 years,
R/o. Armori, Tah. Armori,
Occupation : Agriculturist.
Distt. Gadchiroli.
2. Hariram Atramji Warkhade,
Aged 72 years,
Occupation : Social Worker,
R/o. At Arori, Tah. Armori,
Distt. Gadchiroli.
3. Asstt. Charity Commissioner,
Civil Lines, Nagpur. : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr. Prashant Gode, Advocate for the Petitioner.
Mr. R.L. Khapre with Anil Thakare, Advocate for the Respondent No.2.
Mr. A.M. Balpande, Asstt. Government Pleader for the Respondent No.3.
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AND
WRIT PETITION No.498 OF 2016
Prabhakar Waktuji Sapate,
Aged 60 years,
Occupation : Agriculturist,
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J-wp497,498 & 499.16.odt 2/18
R/o. At Armori, Tah. Armori,
Distt. Gadchiroli. : PETITIONER
...VERSUS...
1. Narayan Baburao Dhakate,
Aged 53 years,
Occupation : Agriculturist.
R/o. Armori, Tah. Armori,
Distt. Gadchiroli.
2. Hariram Atramji Warkhade,
Aged 72 years,
Occupation : Social Worker,
R/o. At Arori, Tah. Armori,
Distt. Gadchiroli.
3. Asstt. Charity Commissioner,
Civil Lines, Nagpur. : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr. Prashant Gode, Advocate for the Petitioner.
Mr. R.L. Khapre with Anil Thakare, Advocate for the Respondent No.2.
Mr. A.M. Balpande, Asstt. Government Pleader for the Respondent No.3.
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AND
WRIT PETITION No.499 OF 2016
Prabhakar Waktuji Sapate,
Aged 60 years,
Occupation : Agriculturist,
R/o. At Armori, Tah. Armori,
Distt. Gadchiroli. : PETITIONER
...VERSUS...
1. Narayan Baburao Dhakate,
Aged 53 years,
Occupation : Agriculturist.
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J-wp497,498 & 499.16.odt 3/18
R/o. Armori, Tah. Armori,
Distt. Gadchiroli.
2. Hariram Atramji Warkhade,
Aged 72 years,
Occupation : Social Worker,
R/o. At Arori, Tah. Armori,
Distt. Gadchiroli.
3. Asstt. Charity Commissioner,
Civil Lines, Nagpur. : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr. Prashant Gode, Advocate for the Petitioner.
Mr. R.L. Khapre with Anil Thakare, Advocate for the Respondent No.2.
Mr. A.M. Balpande, Asstt. Government Pleader for the Respondent No.3.
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CORAM : S.B. SHUKRE, J.
th
DATE : 6
APRIL, 2016.
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith. Heard
finally by consent of learned Counsel appearing for the parties.
2. By these writ petitions, the petitioner has challenged the
legality and correctness of the order passed by the learned Joint
Charity Commissioner on 21.1.2016, thereby rejecting the
application for grant of stay to the elections being held to the Rani
Durgawati Adiwasi Vikas Sanstha Jogi Sakhara, (in short, "the
Society"), in compliance with the order passed by the learned
J-wp497,498 & 499.16.odt 4/18
Assistant Charity Commissioner on 31.12.2015.
3. By the order passed on 31.12.2015, the learned Assistant
Charity Commissioner rejected three Change Reports, which were
the subject matter of inquiry in Inquiry No.245/2011, 374/2011
and Inquiry No.100/2014. The Change Reports in Inquiry
No.245/2011 and 374/2011 were in respect of change of address of
the society and removal of petitioner No.1 as secretary of the
society respectively. The Change Report in inquiry No.100/2014
was relating to induction of a person in place of petitioner No.1
after his removal. These Change Reports were rejected by the order
passed on 31.12.2015. The learned Assistant Charity
Commissioner, however, having regard to the failure of respondent
No.1 to take appropriate steps in the inquiry No.100/2014, also
found that fresh elections to the executive committee of the society
were necessary and accordingly by the same order dated
31.12.2015 directed fresh elections to be held within 30 days from
the date of order. He also declared that the members, whose names
were included in the list of members submitted in inquiry
No.245/2011, would be eligible to take part in the elections.
4. The learned Joint Charity Commissioner, while
entertaining the appeal, preferred against the aforesaid order dated
J-wp497,498 & 499.16.odt 5/18
31.12.2015, held that the petitioner did not take any prompt steps
before the Election Officer and even after receiving the copy of the
order and considering the fact that the election process was at the
fag end found that it would not be proper to grant stay to the
elections. Therefore, by the order passed on 21 st January, 2016
learned Joint Charity Commissioner rejected the application for
grant of stay.
5. It is the contention of the learned counsel for the
petitioner that the impugned order is illegal as it does not take into
account the fact that the order dated 31.12.2015, which has been
challenged in the appeal has been passed without any jurisdiction.
He submits that there is a specific direction given by the learned
Assistant Charity Commissioner for allowing those members to take
part in the elections, whose names were submitted in the inquiry
No.245/2011. He submits that this direction could not have been
issued when the said list of members is in dispute and there is
another list of members, which in the opinion of the petitioner is
correct and, therefore, the participation in the elections could not
have been restricted to only those members, whose names were
mentioned in the list of members filed along with Change Report
vide inquiry No.245/2011 and this is what makes the said order as
J-wp497,498 & 499.16.odt 6/18
beyond jurisdiction.
6. Learned counsel for the petitioner further submits that
the whole foundation of the order dated 31.12.2015 is that there
has been no compliance by the petitioner with the earlier order of
the Assistant Charity Commissioner dated 15.6.2010, which is
wrong. He submits that by the order passed on 15.6.2010, a
direction was issued to the executive committee for holding of the
election within 3 months from the date of order and in pursuance of
this direction, the election was held and Change Reports being
inquiry No.509/2010 as well as inquiry No.454/2010 were filed
respectively by the respondent No.2 and the petitioner and which
are still pending. Thus, he submits that when the election was held
in compliance with the said direction, there was no reason for the
Assistant Charity Commissioner to make an observation that the
election was not held. Learned counsel further submits that if the
present election is allowed to be held, the appeal filed by the
petitioner would become infructuous inasmuch as great prejudice
would be caused to them as only those members, who are
belonging to the group of respondents would be allowed to take
part in the election process and those members belonging to the
group of the petitioner, inspite of being eligible to vote, would not
J-wp497,498 & 499.16.odt 7/18
be allowed to take part in the election process. He also submits that
this will all lead to complications and multiplicity of proceedings
and, therefore, it is in the interest of justice that stay is granted to
the election being held. Learned counsel for the petitioner further
submits that there has been violation of principles of natural justice
while passing the order dated 31.12.2015 by the learned Assistant
Charity Commissioner.
7. Mr. R.L. Khapre, learned counsel for respondent No.2
submits that the impugned order is legal and correct and requires
no interference. He submits that the election was held in the year
2010 in compliance with the order of the Assistant Charity
Commissioner passed on 15.6.2010 and the Change Report in
inquiry No.509/2010 was also filed and that Change Report is
presently pending. In respect of same election even the petitioner
has filed another Change Report being inquiry No.454/2010,
submits the learned counsel for the respondent No.2. Learned
counsel further submits that both these Change Reports are pending
for adjudication and are yet to be decided by the learned Assistant
Charity Commissioner. Since the period of the executive committee
which was elected in the said election was already over, the learned
Assistant Charity Commissioner by the order passed on 31.12.2015,
J-wp497,498 & 499.16.odt 8/18
by way of an administrative direction, ordered that fresh election be
held so that there is no vacuum in the management of the society.
This direction having been issued in the interest of affairs of the
society and being an administrative order, there was no need for
the Assistant Charity Commissioner to give any hearing to the
petitioner. He submits that the Change Reports in inquiry
Nos.374/2011 and 100/2014, if accepted, would have resulted in
bringing adverse consequences for the petitioner. However, both
these Change Reports were rejected and thus the order dated
31.12.2015 effectively was in favour of the petitioner, learned
counsel for respondent No.2 so submits. He also submits that in the
Change Report in inquiry No.245/2011, the petitioner was not
party and the direction for holding of elections could be said to be
passed in the inquiry No.245/2011.
8. Learned counsel for the respondent No.2 further submits
that once it is found that the order dated 15.6.2010 was complied
with after holding of the election, the direction issued for holding of
fresh election after the period of executive committee elected in
2010 elections was over, cannot be said to be illegal or improper,
rather such an order would have to be upheld in the best interest of
affairs of the society. He also submits that the learned Assistant
J-wp497,498 & 499.16.odt 9/18
Charity Commissioner may have observed that the order dated
15.6.2010 has not been complied with, but erroneous observation
of the Court would not by itself render the final conclusion as also
erroneous, if final conclusion is found to be consistent with the
overall facts on record of the case and legal principles applicable to
the facts of that case. On these grounds, he submits that there is no
substance in the petition and it deserves to be rejected.
9. Learned Assistant Government Pleader submits that
appropriate order be passed.
10. The impugned order dated 21st January, 2016 will have
to be read together with the order dated 31.12.2015 passed by the
Assistant Charity Commissioner directing holding of election
amongst the members, whose names were appearing in the list
submitted in inquiry No.245/2011. By the impugned order dated
21st January, 2016, the learned Joint Charity Commissioner has
upheld the order passed by the learned Assistant Charity
Commissioner directing holding of election. Basically, the order
directing holding of election has been passed by resorting to powers
of the Charity Commissioner under Section 41-A of the Maharashtra
Public Trusts Act. It is an administrative direction and therefore it
would have to be seen whether by passing of such a direction, the
J-wp497,498 & 499.16.odt 10/18
interest of the society is going to be served or suppressed. If
ultimately, the interests of the society are going to be enhanced, the
Court would not be within its power to make any interference with
such an order. Reason being that the management of the society
would come to a standstill just because there are two factions in the
society which are fighting with each other and which are refusing to
acknowledge the other faction as the one that would be entitled to
have the charge of and control over the affairs of the society. In
such a dispute, the first duty of the Court would be to ensure that
the interests of the society are protected, and this is what the said
order, prima facie, achieves here. For this reason, I find that even
though the order dated 31.12.2015 has been passed without
hearing the petitioner, it could not be seen as illegal. It would then
follow that the observation that order dated 15.2.2010 has not been
complied with, made wrongly, would also be of no consequence as
ultimately the order does not smack of any apparent illegality.
11. In the instant case, the term of executive committee
elected in the year 2010 is admittedly over. Therefore, one or the
other executive committee has to take over or otherwise there
would be vaccum in the management of the society. To avoid this
situation the Assistant Charity Commissioner has to take such steps
J-wp497,498 & 499.16.odt 11/18
as are permissible in law. Issuance of a direction to hold election is
one of the steps permissible under the law. This step has been
taken in the instant case and apparently it is taken in the best
interest of the society. Such an order as passed on 31.12.2015 by
learned Assistant Charity Commissioner, therefore could not have
been stayed, during pendency of the appeal. If, on merits, it is
found that the order dated 31.12.2015 is perverse or absolutely
illegal, all consequential orders can be passed and, therefore, there
is no question of the appeal getting infructuous or cropping of
complications or giving birth to multiple proceedings.
12. In the case of Vanmala Manoharrao Kamdi and others
vs. Deputy Charity Commissioner, Nagpur and others, reported
in 2012(3) Mh.L.J. 594, the Division Bench of this Court held that
when an administrative order is passed which is in the interest of
the society or the Trust, there could be occasions, which would not
necessitate grant of any hearing to the trust or its members. The
Division Bench held that in such cases, most of the time the
satisfaction is subjective and, therefore, hearing before making any
order may not be possible in each case. In the case of Dattatraya
s/o. Mahadeo Hiware and others vs. Arjun s/o. Sambhaji
Shinde and others, reported in 2007(1) Mh.L.J. 48, learned
J-wp497,498 & 499.16.odt 12/18
Single Judge of this Court held that the Charity Commissioner is
empowered to issue directions under Section 41-A of the said Act
for ensuring proper administration of the Trust. So there cannot be
any dispute about the power of the Assistant Charity Commissioner
to issue a direction for holding of election under Section 41-A, and
if required, without even hearing an objector, as the Assistant
Charity Commissioner has done in the present case and prima facie,
rightly so.
13.
Now, the question would be while issuing such a
direction, learned Assistant Charity Commissioner, could have
declared only those members whose names were appearing in the
list submitted in inquiry No.245/2011 were eligible to take part in
the election process or not. The answer to the question would have
to be found out by balancing the interests of the society against the
interests of warring factions of the members of the society. In the
instant case, according to the members belonging to the group of
petitioner, the list of members submitted by the respondent No.2 is
incorrect and many persons not eligible to be members of the
society have been shown as qualified to be members of the society.
This claim is disputed by the respondent No.2, who submits that the
list submitted by respondent No.2, the President of the society, is
J-wp497,498 & 499.16.odt 13/18
correct and the list of members on which reliance is being placed by
the petitioner is wrong. In the Change Report in inquiry
No.509/2010, same list of members has been filed as in Change
Report in inquiry No.245/2011. In the change report in inquiry
No.454/2010, another list of members has been filed by the
petitioner. Both these Change Reports are pending for adjudication
before the Deputy Charity Commissioner, Nagpur. In such a
situation, the learned Assistant Charity Commissioner, in order to
uphold the interests of the society, would have to accept one or the
other list of members of the society submitted by the rival groups.
It appears that while doing so, the learned Assistant Charity
Commissioner has taken as prima facie correct the list of members
submitted by the respondent No.2 and I see no illegality or any
error in prima facie accepting said list for the purposes of present
election. The reason is not too far to be seen. The respondent No.2
is admittedly the President of the society and as per the bye-laws of
the society, the President of the society and his executive
committee, are empowered to hold the elections. The
bye-laws, prima facie, do not show that the Secretary of the society
and the petitioner No.1 claims himself to be the secretary of the
society, has any power to hold the elections. In such a situation,
J-wp497,498 & 499.16.odt 14/18
prima-facie correctness is bound to be assigned to the list filed in
the Change Reports (Inquiry Nos.245/2011 and 509/2010)
submitted by a President empowered to hold elections instead of to
a list submitted by a Secretary in a Change Report (Inquiry
No.454/2011), who is not empowered to hold the elections.
Therefore, I see no illegality having been committed by the learned
Assistant Charity Commissioner in issuing the direction regarding
declaration of the members in the list submitted by the respondent
No.2 as eligible for taking part in the election process. It then goes
without saying that no illegality could also be seen in the order
passed by the learned Charity Commissioner on 31 st January, 2016
in rejecting the application for grant of stay to the election. As
already stated by me, ultimately the show must go on and
eventually if the appeal is allowed, the learned Joint Charity
Commissioner will not be powerless to pass all those consequential
orders which might be necessary in the facts and circumstances of
the case.
14. Learned counsel for the petitioner has also referred to
me the case of Shakil Musa Patel and another vs. Dilipsing
Pratapsing Patil and others, reported in 2014(1) Mh.L.J. 960,
wherein the learned Single Judge of this Court held that when a
J-wp497,498 & 499.16.odt 15/18
dispute regarding the list of members of a Trust was pending, the
Joint Charity Commissioner ought not to have issued any direction
in respect of those list of members. The facts of the said case of
Shakil Patel are quite different from the facts of this case. In that
case, the District Court was already in seisin of substantive matter
before it and therefore, it was observed that the Joint Charity
Commissioner, while disposing of the appeals, could not have at all
touched the issue arising in the matter pending before the District
Court by taking a direct recourse to Section 41-A of the said Act.
Such are not the facts of the present case. The Change Reports
being inquiry Nos.454/2010 and 509/2010 are in respect of
election of the executive committee whose term got already over by
the time the appeal reached the doors of the Court of the Joint
Charity Commissioner. The legality or correctness of that election is
altogether a different issue than the legality and correctness of the
present election. If the petitioner has any objection regarding the
eligible members, the objection can be taken by him before
appropriate forum at appropriate time. The petitioner would
always have that liberty, which cannot be taken away from him.
15. Learned counsel for the petitioner has also cited before
me the case of Jagatnarayansingh Swarupsingh Chithere and
J-wp497,498 & 499.16.odt 16/18
others vs. Swarupsingh Education Society and another, reported
in 1980 Mh.L.J. 372, wherein the learned Single Judge of this
Court, relying upon the decision of Gujarat High Court in Shantilal
Khimchand and others vs. Mulchand Dalichand and others, held that
while exercising jurisdiction under Section 22 of the said Act, the
Assistant Charity Commissioner must inquire into not only the
factum of the change under consideration but also its legality and
validity. In my humble opinion, the ratio of this case would be of
assistance to the petitioner in the change reports which are pending
for adjudication before the Deputy Charity Commissioner and not
in this case. Even otherwise, the decision being upon the merits of
the Change Reports, at this stage, it would not have any application
to the facts of the present case.
16. Learned counsel for the petitioner has also referred to
the case of Nawalchand Champalal Chaudhari and another vs.
Joint Charity Commissioner, Nagpur and another, reported in
2007(1) ALL MR 71, wherein this Court observed that as the
minimum number of trustees to administer the Trust itself was not
available, the Assistant Charity Commissioner ought to have
referred the matter to the Charity Commissioner under Section 47
of the Act to appoint adequate number of trustees. These facts are
J-wp497,498 & 499.16.odt 17/18
different from the facts of the present case, wherein there is no
dispute about the availability of minimum number of members of
the executive committee. Similarly, the observations in paragraph
18 of the said case that in a case where there was no availability of
minimum number of trustees, issuance of directions to hold
elections would never result in resolving the issue once and for all
and dispute will continue, would also not help the case of the
petitioner. The reason being that the administrative order which
has been passed in this case regarding holding of the elections has
been, prima facie, found to be in the interest of the society and this
Court has also found that the order declaring certain members
whose names are appearing in the list filed in inquiry No.245/2011
as qualified voters as prima-facie correct. Therefore, this case law
would have no application to the facts of the present case.
17. In the result, I find no illegality or incorrectness in the
order impugned herein. Writ Petitions deserve to be dismissed and
hence writ petitions are dismissed.
18. Rule is discharged. No costs.
19. Learned Joint Commissioner is requested to dispose of
the matter as expeditiously as possible as it appears that expeditious
disposal of the appeal in such a case is likely to provide finality to
J-wp497,498 & 499.16.odt 18/18
the ongoing dispute between two rival fractions operating in the
society.
20. It is made clear that the learned Joint Commissioner
shall not be influenced by the observations made in this order and
all contentions of the parties are kept open for being appropriately
decided by the authorities below.
JUDGE
okMksns
