Bombay High Court

Mohd. Yusuf Haji Sk. Usman vs Mohd. Alimoddin Mhod. Sagiruddin ... on 23 March, 2016

Bench: S.B. Shukre

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                                            1




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




                                                      
                          WRIT PETITION     No. 1929 OF 2016




                                                     
    Mohd. Yusuf Haji Sk. Usman,
    aged about 69 years,
    Occupation : Agriculturist,




                                          
    r/o Mubarknagar,
    Nerparsopant,
    Distt. Yavatmal.            ig                        .... PETITIONER.


                              VERSUS
                              
    1. Mohd. Alimoddin Mohd. Sagiruddin,
       aged about 66 years,
       Occupation : Retired Head Master,
      


       r/o Walisahab Nagar,
       Nerparsopant,
   



       Distt. Yavatmal.

    2. The Assistant Charity Commissioner,
       Yavatmal Region,





       Yavatmal.                                       ....  RESPONDENTS.


                                     ....
    Shri A.J. Gilda Advocate for the Petitioner.
    Shri R.D. Karode Advocate for Respondent no. 1.





    Shri Amit Balpande, AGP, for Respondent no. 2.
                                     .....


                                       CORAM : S.B. SHUKRE, J.

DATED : 23.03.2016.

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ORAL JUDGMENT :

Rule. Rule made returnable forthwith. Heard finally

by consent of parties.

2. Two Change Reports- one filed by the petitioner and

the other filed by the respondent no. 1 have been enquired into

and rejected by the learned Assistant Charity Commissioner,

Yavatmal, by two separate orders passed on 29.2.2016.

ig While

rejecting the Enquiry No. 44/15 in respect of Change Report of

respondent no. 1, the learned Assistant Charity Commissioner

passed some directions which were passed by resorting to power

under Section 41-A of the Bombay Public Trusts Act. These

directions related to enrolment of membership and holding of

fresh elections within a period of two months and three months

respectively. According to the petitioner, these directions were

without jurisdiction as it has been held by this Court in Gram

Vikas Samiti, Shahapur vs. Darshanlal s/o Nandlal Malhotra

& ors. reported in 2009(5) Mh.L.J. 457 that the Assistant

Charity Commissioner while adjudicating upon a Change Report

cannot direct enrolment of members and holding of election etc.

The learned counsel for the petitioner submits that even though

the directions were issued by the learned Assistant Charity

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Commissioner while rejecting Enquiry No.44/15, the petitioner was

handicapped in filing the appeal, as ultimately the order rejecting

the Change Report of respondent no. 1 was in favour of

petitioner. Such directions were, however, not issued while

rejecting the Change Report in Enquiry No. 17/15 instituted upon

the Change Report filed by the petitioner. That order has been

challenged by the petitioner by filing appeal under Section 70 of

the Bombay Public Trusts Act.

3. Since these directions were not made part of the

order rejecting the Change Report in Enquiry No.17/15, as

submitted by the learned counsel for the petitioner, there was no

occasion for the petitioner to seek stay of the aforesaid directions

in the appeal so filed by the petitioner. Accordingly, the petitioner

sought stay to the effect and operation of these directions by filing

an application before the learned Assistant Charity Commissioner.

It is seen from the impugned order dated 14.3.2016 that the

learned Assistant Charity Commissioner rejected this application.

This petition challenges the said order dated 14.3.2016.

4. The learned counsel for the petitioner submits that

even though the case of Gram Vikas Samiti, supra, was cited

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before the learned Assistant Charity Commissioner, it was not

considered by him. He also submits that on an erroneous

presumption of absence of any power vested in him to grant stay

to the execution of his own order, the learned Assistant Charity

Commissioner has rejected the said application. He submits that

even the SLP being SLP No. 21889/14 is pending for further

consideration in the Apex Court. The issue involved in that case

pertains to the legality and validity of Change Reports of the year

2002-2003 and, therefore, the pendency of the SLP would have no

bearing upon the prayer made in the application filed before the

learned Assistant Charity Commissioner. He further submits that

since the provisions of Code of Civil Procedure are applicable to

the proceedings before the Assistant Charity Commissioner, the

Assistant Charity Commissioner does have the power to stay

execution of his own orders by virtue of Order 21 Rule 29 of Code

of Civil Procedure. He places reliance upon the case of Hansraj

v. Satnarain & ors. reported in AIR 1957 Raj. 219.

5. Shri Karode, learned counsel for respondent no. 1,

submits that after passing of the order dated 29.2.2016, the

learned Assistant Charity Commissioner has become functus

officio and therefore ceases to have any power to allow the

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application as filed by the petitioner. In support of his submission,

he placed reliance on the decision in S.B.I. & ors. v. S.N. Goyal

reported in (2008) 8 SCC 92. He submits that there is no

provision under the Bombay Public Trusts Act conferring any such

power to the Assistant Charity Commissioner. He also submits

that the directions which are sought to be stayed by the petitioner

can be issued by the Assistant Charity Commissioner while

deciding the Change Reports and he can certainly invoke power

under Section 41-A of the Bombay Public Trusts Act. He submits

that in a subsequent decision of this Court, such a view has been

taken and same has been affirmed before the Hon'ble Apex Court.

He submits that the relevant citation is presently not available

with him and he should be granted some time for producing the

same.

6. Although, it is the contention of the learned counsel

for respondent no. 1 that a different view has been taken

subsequently by this Court with regard to power of the Assistant

Charity Commissioner to issue directions under Section 41-A at

the time of adjudicating upon a Change Report, the fact remains

that this aspect of the matter has not at all been considered by

the learned Assistant Charity Commissioner while deciding the

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application filed by the petitioner. Learned counsel for respondent

no. 1 submits that liberty be given to the respondent no. 1 to

canvass the said issue, if this Court decides to remand the case to

the Assistant Charity Commissioner for consideration of the

application afresh in accordance with law. Such liberty can always

be given to him.

7. In the circumstances, I am of the view that the

learned Assistant Charity Commissioner having not considered the

most important issue involved in this case, it is necessary that the

matter is remanded back to the Assistant Charity Commissioner

for deciding the application afresh. As regards the observation

made by the learned Assistant Charity Commissioner that he has

no power to decide the application, I must say, same has been

made on an erroneous assumption. There is ample power vested

in the learned Assistant Charity Commissioner under the

provisions of Order 21 Rule 29 of Code of Civil Procedure to decide

such application filed for stay of the execution of his own order. In

the result, the writ petition deserves to be allowed. Hence,

following order.

                                          ORDER

          (i)      Writ petition is allowed.





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         (ii)      The impunged order dated 14.3.2016 is hereby

quashed and set aside. The matter is remanded to the

Assistant Charity Commissioner for deciding the

application afresh in accordance with law.

(iii) The directions, which are impugned here, relating to

enrolment of members and holding of fresh elections are

stayed till Misc. Application No. 14/16 is decided in

accordance with law.

(iv) All the contentions of the rival parties are kept open.

(v) The application be disposed of within 15 days from

the date of appearance of the parties before the Assistant

Charity Commissioner.

(vi) Parties to appear before the Assistant Charity