Bombay High Court
Vidyadhar S/O Ramdas Khairi And ... vs Assistant Charity Commissioner, ... on 13 December, 2016
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.6411 OF 2016
1] Vidyadhar s/o Ramdas Khairi,
Age Major, R/o. Punjab Colony,
Wardha, Tahsil and District-Wardha.
2] Kamalkishor Gulabchand Kuldhariya,
Age Major, R/o. Hawaldarpura,
Wardha, Tahsil and District-Wardha.
3] Premsingh s/o Bharatsingh Mahile,
Age Major, R/o. Karanja Ghadge,
Tahsil-Karanja, District-Wardha.
4] Hiraman s/o Anantrao Ruikar,
Age Major, R/o. Burande Layout,
Wardha, Tahsil and District-Wardha.
5] Chinmay s/o Jagannath Deshpande,
Age Major, R/o. Sahakar Nagar, Wardha,
Tahsil and District-Wardha.
6] Jayant s/o Krushnarao Dhage,
Age Major, R/o. Bank of India Colony,
Nagpur Road, Wardha, Tahsil and
District-Wardha.
7] Pankaj s/o Janardhanpanth Ghuse,
Age Major, R/o. Shriniwas Colony,
Wardha, Tahsil and District-Wardha.
8] Mangesh s/o Manoharrao Chandurkar,
Age Major, R/o. Vivekanand Nagar,
Wardha, Tahsil and District-Wardha.
9] Kishor s/o Marotrao Chaure,
Age Major, R/o. Panjab Colony,
Wardha, Tahsil and District-Wardha.
10]Kulbhushan s/o Vitthalrao Wasu,
Age Major, R/o. Utkarsha Colony,
Wardha, Tahsil and District-Wardha.
11]Sau. Arundhati Avinash Deo,
Age Major, R/o. Dehankar Layout,
Wardha, Tahsil and District-Wardha.
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12]Ku. Megha Anilrao Kulkarni,
Age Major, R/o. Kelkarwadi, Arvi Road,
Wardha, Tahsil and District-Wardha. .. Petitioners
.. Versus ..
1] Assistant Charity Commissioner,
Wardha, Tahsil and District-Wardha.
2] Sunil s/o Vinayak Subhedar,
Aged about 48 years,
Occupation-Business,
R/o. Kelkar Wadi, Wardha,
Tahsil and District-Wardha.
3] Avinash s/o Purushottam Deo,
Aged about 48 years,
Occupation-Business,
R/o. Dehankar Layout, Wardha,
Tahsil and District-Wardha.
4] Dwarkadas s/o Ramkisan Darak,
Age Major, R/o. Kapda Lane,
Wardha, Tahsil and District-Wardha.
5] Madhav s/o Govind Kotsthane,
Aged about 53 years,
Occupation-service,
R/o. Pratap Nagar, Wardha,
Tahsil and District-Wardha.
6] Harish s/o Jethalal Jotwani,
Aged about 53 years,
R/o. Bhamtipura, Wardha,
Tahsil and District-Wardha.
7] Sau. Shaivali Parag Subhedar,
Aged about 48 years,
Occupation-Household,
R/o. Wardha, Tahsil and
District-Wardha.
8] Ku. Nisha Waman Deshpande,
Aged about 65 years,
Occupation-Retired,
R/o. Mohini Nagar, Wardha,
Tahsil and District-Wardha.
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9] Milind s/o Bhaskarrao Deshpande,
Aged about 55 years,
Occupation-Service,
R/o. in front of Shital Mangal Karyalaya,
Bachelor Road, Wardha,
Tahsil and District-Wardha.
10]Rajendra s/o Rangnath Rande,
Aged about 50 years,
Occupation-Service,
R/o. P & T Colony, Pratap Nagar,
Wardha, Tahsil and District-Wardha.
11]Lalit s/o Shridhar Bhave,
Aged about 48 years,
Occupation-Service,
R/o. N.E. 94, N.E. Tower, Hill View
Colony, Jindal Steel & Power Ltd.
Raigad (C.G.)-496 001.
12]Gajanan s/o Prabhakar Astaputre,
Aged about 49 years,
Occupation-Business,
R/o. Laxmi Nagar, Wardha,
Tahsil and District-Wardha. .. Respondents
..........
Mrs. Sangita S. Jachak, Advocate for the petitioners,
Shri A.A. Madiwale, A.G.P. for respondent no.1,
Shri S.S. Ghate, Advocate for respondent no.2.
..........
CORAM : SMT. VASANTI A NAIK AND
MRS. SWAPNA JOSHI, JJ.
DATED : DECEMBER 13, 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.
By this writ petition, the petitioners challenge the order of the
Assistant Charity Commissioner, Wardha dated 15.9.2016 allowing an
application filed by the respondent no.2 for clarification of the order dated
15.9.2016 and holding that the intervenors/life members would be entitled to
remain present in the election but would not have a right to vote.
On an application made by the respondent no.2 under Section
41-A of the Maharashtra Public Trusts Act, 1950 to which the petitioners were
parties as intervenors, the respondent no.2 had sought a direction to hold the
elections to the executive body of the trust and to submit the accounts of the
trust for the period from 2003 onwards. The Assistant Charity Commissioner
decided the application of the respondent no.2 and directed the original non-
applicants to hold the election to the executive body of the trust by appointing
an election officer within four months from the date of the order. The
petitioners-intervenors were permitted to participate in the election as they
were life members. The audit reports were also directed to be submitted for
certain period. The petitioners were satisfied with the order of the Assistant
Charity Commissioner, as they desired that the elections be held and they
should be permitted to participate in the election. After the order dated
15.9.2016 was passed, the respondent no.2 filed an application for clarification
of the order dated 15.9.2016. According to the respondent no.2, the
intervenors-life members could not have been permitted to participate in the
election. The said application was allowed by the Assistant Charity
Commissioner by the impugned order dated 14.10.2016. The Assistant Charity
Commissioner held that the life members were only entitled to remain present
in the election but were not entitled to vote. The clarificatory order dated
14.10.2016 is challenged by the petitioners in the instant petition.
Mrs. Jachak, the learned counsel for the petitioners submitted that
the Assistant Charity Commissioner did not have jurisdiction to review his
order dated 15.9.2016. It is submitted that in the absence of the power to
review, the impugned order is liable to be set aside. It is stated that since the
petitioners are the life members, the petitioners are entitled to vote in the
election and the Assistant Charity Commissioner committed a serious error in
restraining the petitioners-life members from casting their vote.
Shri Ghate, the learned counsel for the respondent no.2 and Shri
Madiwale, the learned Assistant Government Pleader appearing on behalf of
the respondent no.1 have supported the order of the Assistant Charity
Commissioner. By referring to the judgment of the Division Bench of this
Court reported in 2012 (3) Mh.L.J. 594 (Vanmala Manoharrao Kamdi and
others .vs. Deputy Charity Commissioner, Nagpur and others) it is submitted
that while exercising powers under Section 41-A of the Bombay Public Trusts
Act, the Assistant Charity Commissioner would have jurisdiction to modify his
order to ensure that the trust is administered properly. It is stated that since
the order under Section 41-A of the Act is an administrative order, the
authority would have the power to modify an order in the interest of justice.
It is submitted on behalf of the respondent no.2, by referring to Clause 11 of
the Constitution of the Trust, that the life members of the trust would not have
a right to vote and, therefore, the Assistant Charity Commissioner committed
no error in restraining the petitioners for casting their vote.
We do not find any force in the submission made on behalf of the
petitioners that the Assistant Charity Commissioner would not have
jurisdiction to modify the order dated 15.9.2016. The said issue stands
answered against the petitioners by the judgment reported in 2012 (3) Mh.L.J.
594. It is held by this Court in the judgment reported in 2012 (3) Mh.L.J. 594
that the Charity Commissioner could issue directions a number of times and
may even change, modify, amend or annul such directions as per the
exigencies.
Though, we do not find any merit in the first submission made on
behalf of the petitioners, the alternate submission made on behalf of the
petitioners needs to be accepted. Clause 11 of the Constitution of the Trust, on
which the respondents have relied, does not prohibit the life members from
casting the vote. Clause 11 provides that only one of the life members could
be elected on the managing committee of the trust. There is, however, nothing
in Clause 11 of the Constitution of the Trust or any other provisions of the
Trust deed, at least such a provision is not pointed out, that prohibits a life
member from voting in the election. If that be so, the Assistant Charity
Commissioner committed an error in restraining the petitioners from casting
their vote in the election.
Hence, for the reasons aforesaid, the writ petition is allowed. The
impugned order is quashed and set aside, thereby reviving the order dated
15.9.2016. Rule is made absolute in the aforesaid terms with no order as to
costs.
JUDGE JUDGE
Gulande, PA
