Bombay High Court
Dr Pravin Babubhai Chavhan And 6 ... vs Assistant Charity Commissioner, ... on 25 August, 2016
Bench: V.A. Naik
WP 3401/15 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 3401/2015
1. Dr.Pravin Babubhai Chavhan,
Aged about 47 years, Occu : Service,
R/o Karmoday Nivas, behind 'Jagruti Vidyalaya',
Ranpise-nagar, Akola.
2. Dr.Anil Shamrao Wakode,
Aged about 51 years, Occu : Service,
R/o Chaytanya wadi, State bank colony - no.5,
Lahan Umri, Akola.
3. Dr.Sau. Usha Kharche (Patil),
Aged about 49 years, Occu : Service,
R/o Oppo. Deshonnati Press,
Gorakshan Rd; Akola.
4. Dr.Pandurang Tulshiram Dhande,
Aged about 45 years, Occu : Service,
R/o near Engineers Colony,
'Mothi Umri', Akola.
5. Dr. Indrayani Bhaskarrao Barde,
Aged about 38 years, Occu : Service,
R/o - C/o B.L. Barde, Jawahar nagar,
near Dawle Classes, Akola.
6. Dr.Prashant Sangle,
Aged about 38 years, Occu : Service,
R/o behind Gita-nagar, Om Shiv Vihar,
By pass road, Akola.
7. Dr. Kavita Chaudhari,
Aged about 36 years, Occu : Service,
R/o Durga nivas, Kaul Khed chowk, Akola. PETITIONERS
.....VERSUS.....
1. Assistant Charity Commissioner,
near 'Ikar Bhavan', Murtijapur Rd; Akola (M.S.).
2. Dr.Madhusudan Sitaramji Mondhe,
Aged about 74 years, Occu : Profession,
R/o Vishrant vadi, Sidheshvar nagar,
Bldg. No.A-1, Pune - 20.
3. Dr. Uttamchand H. Jain. (DELETED).
4. Dr.Sharatchandra Krishnarao Pathak,
Aged about 74 years, Occu : Service,
R/o Rimzim, Ramdhan Plot,
Maratha nagar, Akola-05.
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WP 3401/15 2 Judgment
5. Dr.Kishor Omkarrao Malokar,
Aged about 58 years, Occu : Service,
R/o 'Shakuntal', Ramnagar,
Sudhir Colony, Akola.
6. Dr.Subhash Shankarrao Saoji,
Aged about 71 years, Occu : Profession,
R/o Eye Hospital, near Lady Hardinge
Hospital, Akola-05. RESPONDENTS
Shri M.V. Masodkar, counsel for the petitioners.
Shri A.S. Fulzele, Additional Government Pleader for the respondent no.1.
Shri K.S. Malokar, counsel for the respondent no.5.
CORAM :SMT. VASANTI A NAIK AND
KUM. INDIRA JAIN, JJ.
ig DATE : 25 TH AUGUST, 2016.
ORAL JUDGMENT (PER : SMT.VASANTI A NAIK, J.)
RULE. Rule made returnable forthwith. The petition is heard
finally at the stage of admission with the consent of the learned counsel
for the parties.
2. By this writ petition, the petitioners challenge the order of the
Assistant Charity Commissioner, Akola, dated 30.11.2015 rejecting an
application filed by the petitioners under Section 41-A of the Bombay
Public Trusts Act, 1950.
3. The petitioners claim to the members of the trust that is
registered under the Bombay Public Trusts Act. It is the case of the
petitioners that though the elections to the managing committee of the
trust are overdue, the respondents-recorded trustees are not taking any
steps to hold the election to the managing committee. It is stated that in
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this background, the petitioners had applied to the Assistant Charity
Commissioner under Section 41-A of the Act for a direction against the
recorded trustees to conduct the election to the managing committee of
the trust. The application filed by the petitioner was, however, rejected
by the impugned order dated 30.01.2015.
4. Shri Masodkar, the learned counsel for the petitioners,
submitted that the Assistant Charity Commissioner committed an error in
holding that there was no necessity to conduct the election because of the
pendency of the change reports bearing C.R. Nos.475 of 2014 and 476 of
2014. It is submitted that as per the aforesaid two change reports, the
elections were allegedly conducted in the year 2000 and 2005. It is
stated that even assuming that the change reports are pending, it is clear
that no elections to the managing committee were conducted for a period
of ten years and, hence, it was necessary for the Assistant Charity
Commissioner to issue directions to the recorded trustees to conduct the
elections. It is stated that in the circumstances of the case, this Court may
direct the respondents to conduct the elections.
5. Shri Fulzele, the learned Additional Government Pleader
appearing on behalf of the Assistant Charity Commissioner, submitted
that the Assistant Charity Commissioner rejected the application in view
of the pendency of the change reports that were filed in the year 2014. It
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is stated that since the change reports were registered in the year 2014,
the Assistant Charity Commissioner must have believed that the elections
took place in that year.
6. Shri Malokar, the learned counsel for the respondent no.5,
has opposed the prayer made in the writ petition. It is stated that the
petitioners are not the members of the trust and they were not entitled
to file the application under Section 41-A of the Act of 1950 or this
writ petition. It is, however, fairly submitted on a perusal of the copies of
the change reports that are annexed to the petition, that the elections
were held in the year 2000 and 2005. It is stated that this Court may not
grant the relief in favour of the petitioners as the petitioners have no
membership.
7. On hearing the learned counsel for the parties and on a
perusal of the impugned order it appears that the impugned order is
based on the pendency of the two change reports of the year 2014. We
have perused the copies of the change reports that are annexed to the
writ petition. It seems that a show is made by the respondent-recorded
trustees of filing the change reports in the year 2014 when, as per the
said change reports, the elections are conducted in the year 2000 and
2005. Normally, we would have granted the relief sought by the
petitioners in this writ petition if the membership of the petitioner was
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admitted. However, we find that there is a serious dispute whether the
petitioners are the members of the trust or not. It would not possible for
this Court to decide the issue of membership in exercise of the writ
jurisdiction under Article 226 of the Constitution of India. It would be
necessary for the authorities under the Bombay Public Trusts Act, 1950 to
decide the said issue. We, however, find on a reading of the impugned
order that the Assistant Charity Commissioner was not justified in
rejecting the application filed by the petitioners solely on the basis of the
pendency of the two change reports of the year 2014 when the change
pertains to the year 2000 and 2005. Since we find that the order of the
Assistant Charity Commissioner is not proper, it would be necessary to
remand the matter to the Assistant Charity Commissioner for a fresh
decision on the application filed by the petitioners, on merit. It is
needless to mention that it would be necessary for the Assistant Charity
Commissioner to first decide the objection of the respondent-recorded
trustees that the petitioners are not the members of the trust.
8. Hence, for the reasons aforesaid, the writ petition is partly
allowed. The impugned order is quashed and set aside. The matter is
remanded to the Assistant Charity Commissioner, Akola for a fresh
decision on the application filed by the petitioners under Section 41-A of
the Bombay Public Trusts Act, 1950. The Assistant Charity
Commissioner, Akola should decide the application a early as possible and
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positively within four months. The parties undertake to appear before the
Assistant Charity Commissioner, Akola on 07.09.2016 so that issuance of
notice to the parties could be dispensed with.
Rule is made absolute in the aforesaid terms with no order as
to costs.
JUDGE JUDGE
APTE
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Uploaded by: Rohit D. Apte. Uploaded on : 26.08.2016.
