Bombay High Court
Sau. Neha Umashankar Deshmukh vs Sau. Pramilabai Madhavrao ... on 17 June, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.6873 OF 2015
Neha Umashankar Deshmukh
aged about 44 years, Occ. Secretary,
Saraswati Bhagini Mandal, Warud,
R/o Deshmukhpura Warud, Tq. Warud,
Dist. Amravati. ... Petitioner.
-vs-
1. Pramilabai Madhavrao Likhitkar
r/o Suryanagar, Warud,
Tq. Warud, Dist. Amravati.
2. Kavita Vijayrao Dehsmukh
r/o Police Station Road,
Vrindavan Nagar, Warud,
Tq. Warud, Dist, Amravati.
3. Archana Shantanurao Solav
r/o Vrindavan Nagar, Warud,
Tq. Warud, Dist, Amravati.
4. Malati Upendra Wankhade,
r/o Back side of Mahavir Auto Centre,
Ringroad, Warud,
Tq. Warud, Dist, Amravati.
5. Savitabai Kailashrao Likhitkar,
r/o Surya Nagar, Warud,
Tq. Warud, Dist, Amravati.
6. Snatikatai Tusharkant Belsare,
r/o Near Jagrut Shala, Warud,
Tq. Warud, Dist, Amravati.
7. Jayashritai Arvind Deshmukh,
r/o Jarud, Warud,
Tq. Warud, Dist, Amravati.
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8. Rupali Jayat Deshmukh,
r/o Vyankatesh Medical Stores,
Police Station Road, Warud,
Tq. Warud, Dist, Amravati.
9. Pranita Pravin Vitalkar,
r/o Main Road, Warud,
Tq. Warud, Dist, Amravati.
10. Apurva Anushman Mankar,
r/o C/o Vishnu Thakre,
Ganesh Nagar near Shelke Hospital,
Warud, Tq. Warud, Dist, Amravati.
11. Bharti Prakashrao Chadhokar,
r/o Surya Nagar, Warud,
Tq. Warud, Dist, Amravati.
12. Nanda Pradiprao Wankhade,
r/o Udapur, Warud,
Tq. Warud, Dist, Amravati.
13. Priya Shailendra Lokhande,
r/o Udapur, Warud,
Tq. Warud, Dist, Amravati.
14. The Assistant Charity Commissioner
Amravati Region Amravati. ... Respondents.
Shri A. J. Gilda, Advocate for petitioner.
Shri Apoorva De, Advocate for respondent Nos.1 to 13.
Ms T. Udeshi, Assistant Government Pleader for respondent No.14.
CORAM : A.S.CHANDURKAR, J.
DATE : JUNE 17, 2016
Oral Judgment :
Rule. Heard finally with consent of learned counsel for the
parties. The petitioner is aggrieved by the award dated 25/03/2011 passed
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before the Lok Adalat thereby accepting the change report which was
submitted by the respondent Nos.1 to 13 and directing the Schedule-1 of the
public trust register maintained under the Maharashtra Public Trusts Act,
1950 (for short, the said Act) to be amended accordingly.
The petitioner claims to be a member of the Managing Committee
of a public trust that is registered under provisions of the said Act.
According to the petitioner, the respondent Nos.1 to 13 filed change report
No.491 of 2010. Said change report was placed before the Lokadalat when it
was pending before the learned Dy. Charity Commissioner. On 26/03/2011
the proceedings were disposed of by treating the same as uncontested. The
change report was accepted and Schedule-1 was directed to be amended.
In the meanwhile the petitioner filed two change reports bearing
Nos.238/2011 and 239/2011. The appeal filed by the petitioner under
Section 70 of the said Act challenging aforesaid award dated 26/03/2011
was dismissed by the learned Joint Charity Commissioner holding that appeal
was not maintainable. Hence the present writ petition.
2. Shri A.J. Gilda, the learned counsel for the petitioner by relying
upon the judgment of the Division Bench in 2015(4) Mh.L.J. 275 Rajabhau
Damodar Raikar v. Assistant Charity Commissioner, Pune and ors.
submitted that the change report proceedings could not have been disposed
of without a contest. It was submitted that the Division Bench of this Court
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has held in the aforesaid judgment that the Lok Adalat was not competent to
decide the change proceedings by treating the same as uncontested.
According to the learned counsel, the aforesaid change report bearing
No.491 of 2010 could not have been disposed of in aforesaid manner. It was
therefore submitted that the learned Jt. Charity Commissioner ought to have
allowed the appeal preferred by the petitioner and ought to have set aside
the award dated 26/03/2011.
3. Shri A. De, the learned counsel for the respondent Nos.1 to 13
opposed aforesaid submissions. According to him, the petitioner had no
locus whatsoever to challenge the adjudication in change report No.491 of
2010. According to him, the petitioner was not a member of the Managing
Committee and therefore the change as reported did not adversely affect her
interest. It was then submitted that if the petitioner had any grievance with
regard to award dated 26/03/2011 on the ground that the compromise was
not lawful, said grievance ought to be made before the same authority which
recorded the compromise. In that regard, the learned counsel placed
reliance on the decision of the Honourable Supreme Court in (2012) 5
Supreme Court cases 525 Horil vs Keshav and anr. He therefore submitted
that there was no merit in the writ petition.
Ms T. Udeshi, the learned Assistant Government Pleader appeared
for the respondent No.17.
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4. I have heard the respective counsel for the parties and I gone
through the documents filed on record. It is not in dispute that change
report No.491/2010 came to be compromised which compromise was
recorded before the Lok Adalat. The award states that the matter was
treated as uncontested and hence the change was accepted with a direction
to amend schedule-1 of the public trust register.
5.
On the aspect of locus of the petitioner, there is dispute between
the parties with regard to the constitution of the Managing Committee.
While it is the case of the petitioner that the reporting trustee who had
reported the change in change report No.491 of 2010 had been removed
earlier, it is the case of the respondent Nos.1 to 13 that the petitioner was not
a member of the Managing Committee. However the fact remains that the
petitioner has filed change report Nos.238/2011 and 239/2011 while
respondent Nos.1 to 13 have filed change report No.491 of 2010 which was
prior in time. The aspect of locus is a matter to be decided after considering
the evidence that would be ultimately led in the change report proceedings.
At this stage, no finding can be recorded in that regard. Suffice it to say that
as the petitioner has been shown to have filed change report No.238 of 2011
and 239 of 2011 and as she had also filed appeal under Section 70 of the
said Act, it is held that she has locus to maintain the present writ petition.
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6. The Division Bench in Rajabhau Raikar (supra) after considering
the provisions of the Legal Services Authority Act, 1987 as well as the
provisions of the Act has held that irrespective of a change report being
contested or not, it has to be decided after holding an inquiry in the manner
prescribed. The Lok Adalat has no jurisdiction to decide change reports on
merits. It is further observed that such matters could not be placed before
the Lok Adalat. In view of aforesaid position, it is clear that the Lok Adalat
had no jurisdiction to pass the award dated 26/03/2011 by treating the
proceedings as uncontested.
7. According to the respondent Nos.1 to 13 however, the petitioner
ought to have moved the learned Dy. Charity Commissioner with the prayer
for setting aside the compromise. In this regard support was sought to be
derived from the observations in paragraph 9 of the judgment in Horil
(supra). It has been held by the Honourable Supreme Court that a prayer
for setting aside compromise has to be made before the same Court which
recorded the compromise. These contentions cannot be accepted for the
reason that the Lok Adalat has been held to be not competent to adjudicated
change report proceedings. If there was no jurisdiction whatsoever with the
Lok Adalat with regard to the change report proceedings, there was no
question of the same being decided on the basis of compromise. As the
entire exercise resulting in award dated 26/03/2011 is held to be beyond
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jurisdiction, there would be no occasion to direct the petitioner to approach
the same Authority for setting aside the compromise. Moreover, the
petitioner had filed an appeal under Section 70 of the said Act which was
held to be not maintainable. Hence said submission cannot be accepted.
8. In view of aforesaid discussion, the following order is passed :
(i) The award dated 26/03/2011 passed by the Lok-Adalat in change
report No.491 of 2010 is set aside.
(ii) Change report No.491 of 2010 is restored for being adjudicated
on merits. This change report shall be decided along with change
report No.238 of 2011 and 239 of 2011.
Rule is made absolute in aforesaid terms with no order as to costs.
JUDGE
Asmita
