Bombay High Court
Yogesh Kesharlal Manudhane And ... vs The State Of Maharashtra And ... on 2 May, 2016
Bench: S.V. Gangapurwala
1 W.P.No.2609/16
UNREPORTED
IN THE HIGH COURT OF JUDICATURE AT
BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.2609 OF 2016.
1. Yogesh Kesharlal Manudhane,
Age 42 years, Occ.Private Service,
R/o Patil Wada, At Po : Erandol,
Dist.Jalgaon.
2. Amol Ashok Kabra,
Age 36 years, Occ.Business,
R/o Marwadi Galli, At Po :
Erandol, Dist.Jalgaon.
3. Manakchand Shivji Totle,
Age 81 years, Occ.Nil,
R/o Marwadi Galli, At Po:
Erandol, Dist.Jalgaon.
4. Yogesh Anil Biyani,
Age 37 years, Occ.Business,
R/o Marwadi Galli, At Po :
Erandol, Dist.Jalgaon.
5. Suryakant Chandrashekhar Jaju,
Age 33 years, Occ.Medical Practice,
R/o Marwadi Galli, At Po:
Erandol, Dist.Jalgaon. ... Petitioners.
Versus
1. The State of Maharashtra,
through the Secretary,
Law and Judiciary Department,
Mantralaya, Mumbai-32.
2. The Deputy Charity
Commissioner, Jalgaon,
Dist.Jalgaon.
::: Uploaded on - 06/05/2016 ::: Downloaded on - 30/07/2016 00:40:18 :::
2 W.P.No.2609/16
3. The Erandol Shikshan Prasarak
Mandal, Erandol, Tal. And
Dist.Jalgaon, through its
President Shri Manoj S/o
Ghanashyam Birla, Age 45 yerars,
Occ.Business, R/o At Post
Erandol, Dist.Jalgaon. ... Respondents.
...
Mr.R.R.Mantri, advocate holding for
Mr.B.A.Agrawal, advocate for the petitioners.
Mr.S.P.Sonpawale, A.G.P. for Respondent Nos.1 and
2.
Mr.V.D.Sapkal, advocate holding for
Mr.S.B.Yawalkar, advocate for Respondent No.3.
Mr.A.N.Sabnis, advocate for Respondent No.4.
...
CORAM : S.V.GANGAPURWALA AND
K.K.SONAWANE,JJ.
Reserved on : 25.04.2016.
Pronounced on : 02.05.2016
JUDGMENT (Per S.V.Gangapurwala,J.)
1. Heard.
2. Rule. Rule returnable forthwith. With
the consent of the parties, taken up for final
hearing.
3. The present petition is filed against
the order dated 8.1.2016, passed by the Deputy
Charity Commissioner, Jalgaon, below Exh.12 in
Inquiry No.2685/2015.
4. Mr.Mantri, learned counsel for the
petitioners submits that the petitioners are the
members of Respondent No.3 Mandal. The same is
registered as a Public Trust, so also is
registered under the Societies Registration Act.
The learned counsel submits that General Body
Meeting of
ig the said Trust was not held since
2009. There are in all 594 members. On
8.12.2015, 271 members of the Trust gave
requisition to the President, Secretary to call
Special General Body Meeting to discuss and take
decision in respect of the matters detailed in
the said requisition. The learned counsel
submits that according to the byelaws, more
particularly clause 8(3), if 75 members request
in writing to call for Special General Body
Meeting, then the President has to call the
Special General Body Meeting within 21 days of
the receipt of the requisition. In the present
case the requisition was given by 271 members.
According to the learned counsel, the date of the
Special Body Meeting was scheduled on 10.1.2016,
pursuant to the said requisition. The Respondent
No.3 filed application before the Assistant
Charity Commissioner, Jalgaon i.e. Exh.12 in
Inquiry No.2685/2015, requesting for audit for
the period 2010-11 to 2012-13. The learned
counsel submits that when the petitioners went to
attend the meeting on scheduled date and time, it
was revealed to them that there was stay to the
said meeting and, therefore, it was postponed.
The petitioners thereafter, got the knowledge
that in daily newspaper Erandol-warta, the news
item about the stay of the said meeting was
published. On making inquiry it was learnt by
the petitioners that in the said Inquiry
Application No.2685/2015, an application for
interim stay was moved on 5.1.2016 and the Deputy
Charity Commissioner by interim order Exh.12
prohibited Respondent No.4 from holding the
meeting dated 10.1.2016.
5. The learned counsel further submits
that the learned Deputy Charity Commissioner does
not have the jurisdiction to stay the said
meeting. While passing the impugned order, the
Deputy Charity Commissioner exercised the powers
not vested in him. U/s 41A of the Maharashtra
Public Trusts Act, the Deputy Charity
Commissioner does not have any jurisdiction to
prohibit holding of the meeting or to issue
prohibitory orders. The Charity Commissioner can
not interfere into the internal affairs of the
Trust. He only has supervisory jurisdiction. It
was within the right of these members to call for
the Special General Body Meeting. According to
the learned counsel, the facts are appreciated
perversely by the Deputy Charity Commissioner.
He has observed that only 37 members have signed
the requisition for calling the Special General
Body Meeting. In the application Exh.12 itself
the applicant therein had mentioned that the
requisition was received from 271 members. The
Deputy Charity Commissioner could not have
observed in the order that only 37 members had
signed the requisition. According to the learned
counsel, the reason given in the order that
application U/s 33(4) of the Maharashtra Public
Trusts Act, was pending is also erroneous. The
said reason is untenable. The members have a
right to consider the financial position and
audit report. The learned counsel submits that
the powers of Deputy Charity Commissioner are not
affected even if the audit reports are accepted
or rejected in General Body Meeting. The General
Body is the Supreme Body of the Trust. According
to the learned counsel, the Charity Commissioner
did not extend any opportunity of hearing to the
petitioners and has passed the final order in the
manner prejudicial to the interest of the
petitioners. The Respondents be directed to call
Special General Body Meeting.
6. Mr.V.D.Sapkal, learned counsel
appearing for the Respondent No.3 submits that
Deputy Charity Commissioner had powers U/s 41A
and passed the orders for the purpose of proper
management of the Trust. According to the
learned counsel, Section 41A of the Maharashtra
Public Trusts Act, is an administrative
proceedings and directions can be issued.
According to the learned counsel, it was resolved
that there should be re-audit by the panel of
auditors through Assistant Charity Commissioner.
The Respondent No.4 instigated few members of
the institution and prepared requisition with the
help of them. The subject which was fixed for
discussion before the General Body and in
respect of which the proceedings are pending
before the office of Charity Commissioner were
same. As such there can not be discussion in
respect of the matters which are subjudice. The
same would ig tantamount to interference in the
course of administration of justice. The learned
counsel relies on the judgment of the Apex Court
in the case of "In re :P.C.Sen Appellant reported
in AIR 1970 Supreme Court 1821. The Respondents
are ready to call the meeting excluding the
subjects which are subjudiced before the office
of the Charity Commissioner. According to the
learned counsel, the present petition is a
collusive petition between the petitioners and
Respondent No.4.
7. I have considered the submissions
canvassed by the learned counsel for respective
parties. It does not appear that it was
anybody's case before the Deputy Charity
Commissioner that only 37 members have signed the
requisition. Perusal of application Exh.12, more
particularly, para 3 itself suggest that about
271 members had given requisition for calling the
Special General Body Meeting. The said
observation of the Deputy Charity Commissioner in
the impugned order that only 37 persons have
signed the requisition does not appear to be
proper.
8. Section 41A of the Maharashtra Public
Trusts Act, gives power to the office of the
Charity Commissioner to issue directions to any
Trustee or a Public Trust or any person connected
therewith, to ensure that the trust is properly
administered and the income thereof is properly
accounted. He can also give directions to ensure
that the Trust is properly administered. The
directions with regard to proper administration
of the Trust has a wider amplitude.
9. As per the bylaws if 75 or more
members give requisition then the President has
to call the Special General Body Meeting. In the
present case the same was called by the
Secretary.
10. It is a matter of record that
proceedings U/s 33(4) of the Maharashtra Public
Trusts Act, regarding the audit is pending before
the office of the Charity Commissioner. It is
also a matter of record that proceedings in
respect of
ig the elections conducted i.e. the
change report proceedings are also pending before
the authority. The persons interested can
participate in the said proceedings and raise
objections. The Deputy Charity Commissioner in
his order has found that the proceedings U/s
33(4) are pending with him. The same is
subjudice. As such there is no urgency to hold a
meeting of General Body to again consider the
audit report.
11. The Apex Court in a case of "In re :
P.C. Sen Appellant referred to supra has observed
and held that if a party to the proceeding is
likely to be deterred from prosecuting his
proceeding or people who have similar cause are
likely to be dissuaded from initiating
proceedings, contempt of Court would be
committed.
12. In the present case as stated supra,
the proceedings with regard to the audit of
accounts is pending with the office of the Deputy
Charity Commissioner U/s 33(4), so also change
report with
ig regard to the validity of the
elections of the Managing Committee is pending
before the office of the Assistant Charity
Commissioner and in the agenda set out calling
for Special General Body Meeting amongst other
subjects these subjects are also included.
13. No doubt, if 75 or more members give
requisition to the President to call for the
General Body Meeting, the President is obliged to
call Special General Body Meeting. It would be
open for the members to discuss the subjects,
however, in respect of subject for which a
judicial/quasi judicial proceeding is pending in
the Court, the said discussion would not affect
or ought not tend to affect the proceedings
before the office of the Charity Commissioner,
where the statutory proceedings are pending and
the decision of the authority where the
proceedings are pending would be final then it
would not be appropriate for the General Body to
take any decision even on the ground of
propriety. The members can raise their objection
in the proceedings before the competent
authority, however, the said proceedings can not
be scuttled by any decision amongst the members.
14. The petitioners have also filed Civil
Application No.4460/2016, thereby seeking
directions against the Respondents from taking
up/considering the subject No.2 of the agenda for
the meeting to be held on 6.4.2016, so also the
same subject in a subsequent meeting i.e.
22.4.2016 called by the Respondent. It would be
seen that Respondent Nos.3 and 4 are elected
office bearers of the Managing Committee. The
validity of the election is pending consideration
in the change report. It is settled proposition
of law that after the elections of new body takes
place and the change report is pending, mere
pendency of change report is not an impediment
for the new body to hold the office. As such, it
would not be possible to restrain them from
holding the meeting and discussing the subjects.
In case the petitioners feel that some illegal
decisions are taken, they are at liberty to
assail the same in appropriate proceedings.
15. In
ig light of the above, we pass the
following order :
a) The impugned order is quashed and set
aside. The Respondent Nos.3 and 4 i.e. President
and Secretary of the Trust shall call the Special
General Body Meeting pursuant to the requisition
received by them from 271 members. The Special
General Body may discuss the subjects before it,
however, any decision taken in the Special
General Body Meeting with regard to the pending
proceedings before the office of the Charity
Commissioner/Deputy Charity Commissioner/
Assistant Charity Commissioner shall not take
effect till the said proceedings are decided by
the Deputy Charity Commissioner/Assistant Charity
Commissioner.
b) The Writ Petition is partly allowed.
The Civil Application is disposed of. No costs.
Sd/- Sd/-
(K.K.SONAWANE,J.) (S.V.GANGAPURWALA,J.)
asp/office/wp2609.16
