Bombay High Court
Dilip Dattappa Vasmatkar And ... vs The State Of Maharashtra And ... on 21 July, 2017
Bench: S.P. Deshmukh
1 W.P.No.9217/17
UNREPORTED
IN THE HIGH COURT OF JUDICATURE
AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.9217 OF 2017.
1) Dilip S/o Dattappa Vasmatkar
Age 52 years, Occ.Business.
2) Sau. Pratibha W/o Dilip
Vasmatkar, Age 47 years,
Occ.Household.
Both R/o Parbhani, Dist.Parbhani. ... Petitioners.
Versus
1) The State of Maharashtra,
through Assistant Charity
Commissioner, Parbhani.
2) The Returning Officer,
For the Election of Shri
Sarang Swami Shikshan
Prasarak Mandal, Parbhani,
Dist.Parbhani,
Shri D.B.Jangale,
Inspector in the office of
Charity Commissioner,
Gandhi Park, Parbhani,
Dist.Parbhani.
3) Ashok Sadashivrao
Sawargaonkar, Age major,
Occ.President of Shri Sarang
Swami Shikshan Prasarak Mandal,
Parbhani, Dist.Parbhani,
::: Uploaded on - 29/07/2017 ::: Downloaded on - 08/08/2017 01:00:57 :::
2 W.P.No.9217/17
C/o Ellora Tiles, Gavane Chowk,
Parbhani. ... Respondents.
...
Mr.V.D.Salunke, advocate for the petitioners.
Mr.S.P.Tiwari, A.G.P. for the State.
Mr.R.L.Kute, advocate for intervener respondent No.3.
...
CORAM : SUNIL P. DESHMUKH,J.
Date : 21-07-2017.
ORAL JUDGMENT
1. Rule. Rule made returnable forthwith.
With the consent of the learned counsel for parties, the
petition is taken up for final hearing and heard finally.
2. Heard Mr.V.D.Salunke, learned counsel for the
petitioners, Mr.R.L.Kute, learned counsel appearing for
added respondent, Mr.Tiwari, learned A.G.P. for the
State.
3. After hearing the parties, the position emerges
that for about 9 posts of managing committee only nine
nominations have been received. The stage of submission
of nominations is already over. The petition has been
moved to claim franchise.
4. It is the contention of petitioners that they
were enrolled as members of the trust way back in 2011
under a resolution of then managing committee and said
membership of the petitioners had been approved and
sanctioned in a general body meeting dated 9-4-2011.
Despite this while pursuant to the orders of the Assistant
Charity Commissioner dated 19-5-2017, the elections
were being held, yet the list of voters published on
23-6-2017, did not include petitioners' names. Therefore,
they had taken objection. The objection instead of being
decided by the returning officer, the same was forwarded
to the so called trustees who had given a negative opinion
in respect of petitioners' membership. Consequently,
returning officer did not include their names in the voters
list and as such the petitioners were before this court in a
writ petition bearing W.P.No.8642 of 2017. This Court
had directed the returning officer to decide objections to
the voters list.
5. Mr.V.D.Salunke, vehemently contends that
even thereafter without calling upon the petitioners,
straightaway decision has been rendered on the objection
based on the feed back from the so called trustees. The
order is in breach of principles of natural justice and is
unsustainable.
6. He refers to a few judgments, contending
that scope of inquiry in respect of change report No.175
of 2011 would be only the validity of the elected
managing committee and no further and much less the
membership of the petitioners. He submits the case of
"Jagatnarayansingh Swarupsingh Chithere and others Vs. Swarupsingh
Education Society and another" reported in 1980 Bom.C.R.837
clearly spells out scope of inquiry of change report and
that it is confined to managing committee. It is further
submitted that in a decision of this court in the case of
"Eknath Keshav Teli and others Vs. Mr.Ajit Pandurang Gogte and
others" of Hon'ble single judge (dated 5-11-2012 in writ petition
no.8651 of 2012), it had been vividly made clear that issue
of membership would not be a subject matter in the scope
of inquiry of change reports.
7. It is, therefore, being submitted that order
passed by the returning officer be set aside and the
petitioners names be included in the voters list.
8. The learned counsel Mr. R.L.Kute, on behalf of
added respondent submits that the petition is defective
since it does not make the added respondent and one
other as party who were parties in earlier writ petition
No.8642 of 2017. It is an attempt of the petitioners to
keep back resistance to present writ petition without
making them party.
9. Learned counsel further submits that it can not
be said that membership which is contended to have
been accorded sanction by general body is a valid
membership.
10. According learned counsel, the concerned
meeting dated 9-4-2011 is held to have been vitiated
under a decision of the appellate authority and as such the
decision taken on the subjects stands invalidated.
11. He submits that the returning officer is not
expected to hear the petitioners. Returning officer has
decided the matter with reference to objection and based
upon record available with him. The reasons given are
immaculate. On merits petitioners have no case at all.
12. He submits that it would not be appropriate
to go ahead deciding the writ petition, particularly, as
decision on legality or validity of order passed by
returning officer at this stage is not going to serve any
fruitful purpose having regard to that for nine posts of
managing committee, only nine nominations according to
respondents are received. In the estimate of the
respondents, voting would not be necessary.
13. In the circumstances, it would not be
necessary to proceed with further in the writ petition
leaving it open for the petitioners to take up their
grievance in any appropriate proceedings as would be
available in law.
14. Rule discharged.
Sd/-
(SUNIL P. DESHMUKH,J.)
asp/office/wp9217.17
