Rambhau Raghobaji Mahajan. & ... vs Purushottam Jagannath Murme
2017 Latest Caselaw 4638 Bom

1807 FA  359/1998                             1                        Judgment


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


                        FIRST APPEAL NO. 359/1998 


Santosh S/o Shankarlal Agrawal,
Aged about 45 years, Occu: Business,
R/o. Loya Mar, Lala Oil, Kamptee,
Distt. Nagpur.                                          APPELLANT


                                .....VERSUS.....


1]     Purushottam S/o Jaganath Murme,
       Aged : Major, Occu: Agriculturist,
       R/o. Plot No.46, Kamgar Nagar,
       Behind Jathwar Sabhagruha,
       Nandanvan, Nagpur-9.


2]     Rambhau S/o Raghobaji Mahajn,
       Aged about 46 years, Occu: Agri.
       R/o. 36, Manava Seva Layout,
       Dr. Punjabrao Deshmukh Nagar,
       Nagpur.                                           RESPONDE NTS



Shri A.S. Mehadia, counsel for appellant.
Shri R.A. Jain, counsel for respondent no.2.
None present for respondent no.1.




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 1807 FA  359/1998                                 2                          Judgment



                 CORAM  : DR. SMT. SHALINI PHANSALKAR-JOSHI, J.

               DATE     : JULY 18, 2017.



ORAL JUDGMENT :  

This appeal takes an exception to the judgment and

order dated 15/12/1997 delivered by 2nd Additional District Judge,

Nagpur in Miscellaneous Civil Application No. 363/1995. By the

impugned order, the learned Additional District Judge has dismissed

the revision application, which was preferred against the judgment

and order dated 03/06/1995 passed by the Joint Charity

Commissioner, Nagpur (for short, "JCC") in Appeal No. 28/1994,

preferred under section 70 of the Bombay Public Trust Act, 1950

(hereinafter will be referred to as "Act" for convenience). By his

impugned order, JCC has allowed the said appeal and set aside the

order passed by the Deputy Charity Commissioner, Nagpur (for

short "DCC") rejecting the Change Report No.229/1992 and

accepting the same.

2] Brief facts of this appeal can be stated as follows:-

Appellant and respondent no.2 are the founder

1807 FA 359/1998 3 Judgment

members of the Trust, by name Shri Sadashivrao Patil Shikshan

Sanstha, Kamptee, District - Nagpur. It was initially registered as

society under the Societies Registration Act, 1860. After the Bombay

Public Trust Act, 1950 came into effect, the said society wasdeemed

to be registered as a Trust. Respondent no.2 was also the Secretary

of the Society.

3] The grievance of the appellant is that the meeting of the

executive committee of the Trust was held on 24/09/1990, in which

some of the outsiders were inducted as members and some members

alleged to have made payment of arrears of life member

subscription at the rate of Rs.1,000/- each. Appellant and

respondent no.2 were not given notice about the said meeting nor

the Resolution was conveyed to them. Another meeting was

thereafter convened on 06/01/1991 at Kamptee for election of new

members. The legal and valid notice of 15 days of the said meeting

as per the Memorandum of Association of the said Trust, was

however not given to the appellant and respondent no.2. The notice

is alleged to be issued on 21/12/1990 and is sent by Under

Certificate of Posting on 22/12/1990, for the meeting which was

proposed to be held on 06/01/1991. Thus, there was no clear 15

1807 FA 359/1998 4 Judgment

days notice of the said meeting. Despite that, the meeting was held

on 06/01/1991 and in the said meeting, by passing a Resolution,

the appellant and respondent no.2 were removed from the Trust.

4] Respondent no.1 presented the Change Report about

the same under section 22 of the Act, in the Office of Charity

Commissioner, Nagpur and it came to be registered as Change

Report Inquiry No.229/1992. When the notices thereof were issued

to appellant and respondent no.2, both of them filed their objection

challenging the legality of the Change Report. In the said proceeding

respondent no.1 was examined as his witness vide Exh.21. Appellant

was also examined vide Exh.36, whereas respondent no.2 was

examined vide Exh.53.

5] On appreciation of this evidence and after considering

the various clauses in the Memorandum of Association of the Trust,

learned DCC was pleased to reject the Change Report, holding it to

be illegal on two grounds that 15 days notice of the said meeting

was not given, and secondly appellant and respondent no.2 could

not have been removed from the life membership, without giving

them an opportunity of hearing.

 1807 FA  359/1998                                5                          Judgment


6]              Against   this   order   of   the   DCC,   respondent   no.1

preferred an appeal under section 70 of the Act. The learned JCC,

Nagpur was pleased to allow the appeal holding that as the

appellant and respondent no.2 has failed to pay the subscription fee

of Rs.2000/-, they were no more entitled to participate or vote in

the said meeting. Hence the question whether they had received the

notice of the said meeting or not, does not assume significance.

Accordingly the JCC, vide his order dated 01/08/1995, set aside the

order of the DCC rejecting the Change Report.

7] Being aggrieved thereby, appellant and respondent no.2

preferred the appeal under section 72(4) of the Act before the

District Judge, Nagpur. Vide his impugned judgment and order,

District Judge, Nagpur was pleased to confirm and uphold the

findings in the order of JCC; thereby accepted the Change Report

and set aside the order of DCC.

8] While challenging the impugned order, submission of

learned counsel for appellant is two-fold. In the first place, he has

submitted that appellant and respondent no.2 being the life

members, they were not liable to pay any subscription fees as per

1807 FA 359/1998 6 Judgment

clause 4(b) of the Memorandum of Association of the Trust.

Secondly, it is submitted that, even if they were liable to pay such

subscription fees, they could not have been removed from the Trust

without giving them an opportunity of hearing and for that purpose,

legal and valid notice was required. Thirdly, it is submitted that, the

notice which was issued to them was not of 15 days as required

under clause 16(C) and 18 of the Memorandum of Association of

the Trust. It is urged that on these grounds, the resolutions passed

in the said meeting and the Change Report filed on the basis of

those resolutions was illegal and was rightly rejected by the DCC.

The impugned orders passed by JCC and District Judge, therefore

setting aside the order of the DCC and accepting the said Change

Report are clearly against the bye-laws of the Memorandum of

Association and also against the principles of natural justice,

therefore, required to be quashed and set aside.

9] The notice of this appeal was duly served on respondent

no.1. The pursis is also filed by learned counsel for appellant stating

that the copy of private paper book is duly served on respondent

no.1 at the time of final hearing. Despite that, respondent no.1 has

failed to remain present.

 1807 FA  359/1998                               7                          Judgment


10]             In   this   appeal,   I   have   heard   learned   counsel   for

appellant and perused the impugned orders passed by the DCC, JCC

and the District Judge. He has also drawn my attention to the

relevant clauses in Memorandum of Association of the Trust.

11] It is undisputed position that appellant and respondent

no.2 were the founder members of the Trust and respondent no.2

was also a Secretary of the Trust. Article no.4-A of the

Memorandum of Association defines the life members and further

states that the founder members will come in the category of life

members. According to learned counsel for appellant, therefore,

they were not liable to pay any amount of subscription, and hence

they cannot be removed for non-payment of subscription fees.

12] In my considered opinion, it is not necessary to enter

into the question as to whether they were the founder members and

therefore had become the life members, and hence not liable to pay

subscription fees. The only question which becomes relevant to be

considered is, when admittedly they were the members of the Trust

and even assuming that they had not paid the subscription fees,

whether they can be removed from the membership of the Trust

1807 FA 359/1998 8 Judgment

without giving them show cause notice and opportunity of hearing?

The answer is obviously in negative, because it will amount to

violation of principles of natural justice. The law, in this respect is

clearly well settled, as laid down in the judgment of Shri Sarbjit

Singh and others -Vs- All India Fine Arts and Crafts Society and

others, ILR (1989) II Delhi 585, that under section 15 of the

Societies Registration Act there is no provision for expulsion or

removal of member from the society for non-payment of

subscription fees unless such opportunity of hearing is given to the

member. Section 15 of the Societies Registration Act only lays down

that such member cannot be entitled to vote or participate in the

meeting. However, that does not mean that notice of the meeting

itself should not be issued to him.

13] Here in the case, admittedly the notice of the proposed

meeting, according to respondent no.1 also was issued to appellant

and respondent no.2. The question is whether that notice was legal

and valid in view of the mandate of the Memorandum of

Association. As stated above, clause 16(C) of the Memorandum of

Association lays down that 15 days written notice in advance be

given to the members before the election of the members for

1807 FA 359/1998 9 Judgment

executive committee. Clause 18 further lays down that the notice of

15 days in advance must be received by the member for any

proposed meeting of General Body. Here in the case, admittedly the

notice is alleged to be issued on 21/12/1990 and it is stated to be

sent Under Certificate of Posting on 22/12/1990 as the meeting was

proposed on 06/01/1991 and held on that day, it follows that there

was no 15 days in advance notice before the date of meeting. It is

apart that as per the case of appellant and respondent no.2 they had

not received the notice and the proof of Under Certificate of Posting

cannot be a valid proof of service of notice as there is no

acknowledgement receipt.

14] In view of this situation, it is apparent that in the first

place 15 days notice in advance was not received by appellant and

respondent no.2 and on this very ground itself the DCC has rightly

held that the meeting was not legal, proper and valid. Secondly,

ousting of the appellant and respondent no.2 in the said meeting

and induction of some other members in the Executive Committee

was also done without giving an opportunity of hearing to appellant

and respondent no.2. Even assuming that they had not paid the

subscription fees, on this count also their removal from

1807 FA 359/1998 10 Judgment

the membership in the said meeting and induction of some outsider

members to the Executive Committee cannot be upheld.

15] Thus, looked at it from any angle, it cannot be said that

the Change Report filed by the respondent no.1 before the DCC on

the basis of the resolution passed in the said meeting was legal,

valid and correct. The DCC has rightly rejected the same. The orders

passed by the JCC and District Judge, Nagpur in upholding the said

Change Report and setting aside the order of the DCC, being not

legal and valid, need to be quashed and set aside.

16]             Accordingly, appeal is allowed.



17]             The   impugned   order   passed   by   the   District   Judge,

Nagpur is set aside and the order passed by the DCC rejecting the

Change Report is upheld and confirmed.

18]             Appeal stands disposed of.



                                                      JUDGE

Yenurkar