Mohd. Yusuf Haji Sheikh Usman vs Mohd. Alimoddin Mohd. Sagruddin ...
2016 Latest Caselaw 6612 Bom

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




                                                                    
                                     WRIT PETITION NO.3902/2016




                                                                   
         PETITIONER:                Mohd. Yusuf Haji Sheikh Usman
                                    Aged about 69 years, Occ - Cultivation, 
                                    R/o Mubarak Nagar, Ner Parsopant, 
                                    District : Yavatmal.




                                                   
                                                       ...VERSUS...
                             
         RESPONDENTS :     1.  Mohd. Alimoddin Mohd. Sagiruddin, 
                                Aged about 66 years, Occ - Retired, 
                                r/o Walisaheb Nagar, Ner Parsopant, 
                            
                                District - Yavatmal. 

                                    2.  The Assistant Charity Commissioner, 
                                         Yavatmal Division, Yavatmal.
      

         -----------------------------------------------------------------------------------------------------
         Shri D.V. Chauhan, Advocate for petitioner 
   



         Shri P.C. Madkholkar Adv. with Shri R.D. Karode, Adv. for respondent no.1
         Shri A.M. Joshi, AGP for respondent no.2
         -----------------------------------------------------------------------------------------------------

                                                        CORAM  :  SMT. VASANTI  A  NAIK, AND





                                                                          MRS. SWAPNA JOSHI, JJ.

DATE : 22.11.2016

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 petition, the petitioner has challenged the part of the

order of the Assistant Charity Commissioner, Yavatmal, dated 29.2.2016,

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as far as it directs the enrollment of the members and permits the

modification of the Constitution of the Trust.

The petitioner claims to have been elected as a President of

Anjuman Urdu Education Trust since the year 2002. Rival change reports

were filed by the petitioner and the respondent no.1 in the years 2002

and 2003 respectively. Both the change reports were rejected by the

order of the Assistant Charity Commissioner, dated 18.8.2008. The

matter went up to the Hon'ble Supreme Court and the Hon'ble Supreme

Court directed that fresh change reports filed by the rival groups some

time in the year 2015, be decided and elections to the Trust be held.

According to the petitioner, fresh elections were held on 23.11.2014 and

a change report bearing Change Report No.17/2015 was filed by the

petitioner. The respondent no.1 also filed a rival change report claiming

that the elections to the Trust were held in 2014. Both the change reports

were rejected by the Assistant Charity Commissioner, Yavatmal by the

impugned order, dated 29.2.2016. While rejecting the change reports the

reporting trustees were directed to accept the membership from persons

interested in securing the membership of the Trust. The Assistant Charity

Commissioner directed that the elections to the Trust should be held

within three months. Also, by taking suo motu cognizance, the Assistant

Charity Commissioner directed that the modification of the Constitution

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should be made. The Inspector from the office of the Assistant Charity

Commissioner was directed to submit the modification report within a

period of five months. The order of the Assistant Charity Commissioner,

as far as it directs the enrollment of membership and the modification of

the Constitution of the Trust is challenged by the petitioner in the instant

petition.

Shri Chauhan, the learned Counsel for the petitioner

submitted that the Charity Commissioner did not have jurisdiction to

direct the enrollment of new members vide Clause - 2 of the operative

part of the order under Section 41 A of the Maharashtra Public Trusts

Act. It is stated that the Assistant Charity Commissioner exceeded his

jurisdiction in directing that the Constitution of the Trust be modified. It

is stated that the powers of the Assistant Charity Commissioner to issue

directions for the proper administration of the Trust are limited and

circumscribed by the provisions of Section 41 A (1) of the Act. It is

submitted that the Assistant Charity Commissioner is empowered to issue

directions to ensure that the Trust is properly administered and the

income thereof is properly accounted for or duly appropriated and

applied to the objects and for the purposes of the Trust. It is stated that

the Assistant Charity Commissioner could not have directed the

enrollment of new members and the modification of the Constitution of

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the Trust by resorting to the provisions of Section 41 A of the Act and

such directions could not have been issued under the said provisions. It is

submitted that this Court has in the case of Asaram s/o Vithobaji

Selokar and others...Versus...Deputy Charity Commissioner, Nagpur

Sub Region, Bhandara and others, reported in 2016 (4) Mh. L.J. 398

held that the Assistant Charity Commissioner would not have jurisdiction

to issue directions for the modification of the scheme of the Society under

Section 41 A of the Act. It is submitted that it is held by this Court in the

judgment, reported in 2009 (5) Mh. L.J. 457 that the Assistant Charity

Commissioner would not have jurisdiction to direct the enrollment of

members under Section 41 A of the Act. It is submitted that the

impugned order is liable to be quashed and set aside, as far as it directs

the enrollment of membership and the modification of the Constitution of

the Trust.

Shri Joshi, the learned Assistant Government Pleader

appearing for the Assistant Charity Commissioner has supported the

order of the authority. It is, however, fairly admitted that it is laid down

by this Court in the two aforesaid judgments that the Assistant Charity

Commissioner would not have jurisdiction to direct the enrollment of

membership and the modification of the memorandum of association of

the society. It is submitted that an appropriate order may be passed, in

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the circumstances of the case.

Shri Madkholkar, the learned Counsel for the respondent

no.1 has supported the order of the Assistant Charity Commissioner, as

far as it directs the enrollment of membership. The learned Counsel for

the respondent no.1 fairly concedes that the Assistant Charity

Commissioner, Yavatmal would not have jurisdiction to direct the

modification of the Constitution of the Trust. It is submitted that after the

impugned order was passed, the elections are conducted and a change

report is filed by the respondent no.1 before the Assistant Charity

Commissioner.

On a perusal of the provisions of Section 41 A of the

Maharashtra Public Trusts Act and the impugned order, dated 29.2.2016,

it appears that the Assistant Charity Commissioner exceeded his

jurisdiction by directing the enrollment of members and the modification

of the Constitution of the Trust. It is well settled that the Assistant

Charity Commissioner would have jurisdiction under Section 41 A of the

Act to issue directions only to ensure that the Trust is properly

administered and the income thereof is properly accounted for the objects

and purpose of the Trust. The Assistant Charity Commissioner is also

empowered to issue directions if the property of the Trust is in danger of

being wasted, damaged, alienated or wrongfully sold, removed or

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disposed of. None of the circumstances, as provided in Section 41 A of

the Act did arise in the instant case, thereby requiring the issuance of a

direction for enrollment of membership or the modification of the

Constitution of the Trust. The Assistant Charity Commissioner could not

have directed that new members should be enrolled from the interested

persons under Section 41 A of the Act. No reasons, much less, any cogent

reasons are recorded by the Assistant Charity Commissioner before

directing the enrollment of new members. The Assistant Charity

Commissioner could not have directed that the Constitution of the Trust

be modified. It is held by this Court in the judgment, reported in 2016

(4) Mh. L.J. 398 that the Assistant Charity Commissioner could not have

directed the amendment of the memorandum of association of the

society, which would amount to the modification of the scheme of the

society. It is held by this Court in the aforesaid judgment that the

Assistant Charity Commissioner would not be entitled to a issue a

direction for the modification of the scheme of the society. Under

Section 41 A of the Act, the Assistant Charity Commissioner would have

jurisdiction to issue directions only to ensure that the Trust is properly

administered and the income of the Trust is properly accounted for and

applied to the objects and purpose of the Trust. A direction could also be

issued when the property of the Trust is in danger of being wasted,

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damaged, alienated or wrongfully sold, removed or disposed of. In the

circumstances of the case, it cannot be said that the Assistant Charity

Commissioner could have directed the enrollment of new members or the

modification of the Constitution of the Trust by resorting to the

provisions of Section 41 A of the Act.

Hence, for the reasons aforesaid, the writ petition is partly

allowed. Clauses - 2 and 4 of the operative part of the order of the

Assistant Charity Commissioner, dated 29.2.2016 are hereby quashed and

set aside. Rest of the order, dated 29.2.2016 is confirmed.

Rule is made absolute in the aforesaid terms with no order

as to costs.

                        JUDGE                                                             JUDGE





         Wadkar