Vasantrao Apparao Balsure And ... vs The Assistant Charity ...
2017 Latest Caselaw 4952 Bom

   (Judgment)                         (1)                W.P. No. 08830 of 2017




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

                        Writ Petition No. 08830 of 2017

                                                 District : Osmanabad


1. Vasantrao s/o. Apparao Balsure,
   Aged : 68 years,
   Occupation : Agriculture &
   Trustee of Ashta Shikshan
   Sanstha, Ashta (Kasar),
   Taluka Lohara, Dist. Osmanabad,
   R/o. Ashta (Kasar),
   Taluka Lohara,
   District Osmanabad.

2. Subhash s/o. Karbasappa Tadkale,
   Aged : 62 years,
   Occupation : Advocate
   & Secretary of Ashta Shikshan
   Sanstha, Ashta (Kasar),
   Taluka Lohara,
   District Osmanabad,
   R/o. Ashta (Kasar),
   Taluka Lohara, Dist. Osmanabad.          .. Petitioners.


                versus


1. The Assistant Charity Commissioner,
   Solapur Region, Solapur.

2. The Administrator,
   Ashta Shikshan Sanstha,
   Ashta (Kasar),
   Taluka Lohara,
   District Osmanabad.

3. Vasantrao s/o. Vishwanathrao Mane,
   Aged : 85 years,
   Occupation : Pensioner,
   R/o. Near Bharati Vidyapeeth,
   ITI Stop, Solapur,
   Taluka & District Solapur.




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    (Judgment)                            (2)                     W.P. No. 08830 of 2017




4. Sidram s/o. Tukaram Chavan,
   Aged : 79 years,
   Occupation : Pensioner,
   R/o. Aarogya Nagari, Omerga,
   District Osmanabad.                              .. Respondents.

                                      ...........

      Mr. N.P. Patil Jamalpurkar, Advocate, for petitioners.

      Mr. Y.G. Gujarathi, Asst. Government Pleader, for
      respondent no.01.

      Mr. P.R. Katneshwarkar, Advocate, with
      Mr. P.B. Gapat, Advocate, for respondents no.03
      and 04 (caveators).

                                      ...........

                                   CORAM : SUNIL P. DESHMUKH, J.

DATE : 24TH JULY 2017

ORAL JUDGMENT :

01. Rule. Rule made returnable forthwith. Taken up for final

hearing by consent. Heard learned counsel appearing for parties.

02. After hearing learned counsel for parties, it appears

paragraph 32 of decision of this court in first appeal no. 0299 of

2006 and first appeal no. 272 of 2006 dated 19-11-2007 would have

a pivotal role to play, which reads thus :-

"32. In the result, appeal (F.A.No. 299 of 2006) is allowed. The impugned decisions rendered by the first Ad-hoc Additional District Judge as well as the Assistant Charity Commissioner are set aside. The order of

(Judgment) (3) W.P. No. 08830 of 2017

appointment of the Managing Committee is also set aside. The matter is transferred to Assistant Charity Commissioner, Solapur. The Assistant Charity Commissioner, Solapur region shall appoint an Administrator to take over management of the trust. He shall prepare voters list after due verification of names of valid members and direct holding of elections as per existing scheme after calling objections to the voters list. He shall prepare election programme within period of two (2) months after publication of the final voters list. The voters list shall be prepared within two (2) months from receipt of this order and objections may be called within further 15 days and shall be decided within three (3) weeks thereafter. The election process be completed, thus, within six (6) months. Thereafter the appointment of the Administrator may be terminated and elected managing committee be given charge of the affairs of the trust. The First Appeal No.272 of 2006 is dismissed. No costs. "

03. The petition proposes to take exception to order passed

by assistant charity commissioner, Solapur, dated 07-07-2017 upon

miscellaneous application (inquiry) no. 1077 of 2017, miscellaneous

application (inquiry) no. 1152 of 2017 and miscellaneous application

(inquiry) no.1179 of 2017.

04. In order to have a proper appreciation of the matter

factual background may have to be succinctly referred to.

05. Decision of the high court in first appeals no. 299 and

272 of 2006 had been subjected to special leave petitions before the

Supreme Court by present petitioners. The Supreme Court under its

(Judgment) (4) W.P. No. 08830 of 2017

order dated 18-02-2008 had issued notices and stayed the effect and

operation of high court's decision.

06. While special leave petitions had been pending before the

Supreme Court, quite few applications, particularly I.As. no. 9-10 of

2015 and I.As. no. 7-8 of 2015 had been moved wherein the

Supreme Court had initially in July, 2015 issued notices to the State

of Maharashtra in order to have information in respect of action

taken by the assistant charity commissioner on change reports filed.

On 01-05-2015 it appears, on interim application I.As. no. 7-8 of

2015 in the special leave petitions, an order came to be passed that

the interim order passed earlier stands vacated and result of election

would be subject to result of special leave petitions. It appears that

there had been some dispute / confusion as to elections appearing in

the order vacating interim relief with reference to election to take

place as per paragraph 32 of the high court's decision in first appeals

or elections taking place in the interregnum to which interim

applications pertain. Accordingly, interim applications bearing I.A.

nos. 7-8 of 2015 had been moved before the Supreme Court and the

orders came to be passed.

07. On the other hand, it appears after interim relief had

been vacated as aforesaid on 01-05-2015 by the Supreme Court

(Judgment) (5) W.P. No. 08830 of 2017

and, in furtherance of the order of the high court, as contained in

paragraph 32, an order came to be passed on 05-06-2015 by the

assistant charity commissioner appointing administrator over Ashta

Shikshan Sanstha, Ashta (Ka), till result of the election is declared

and administration of the trust had been handed over to the

administrator so appointed. The administrator had further been

directed to take record and administration of the trust in his

possession within a week.

08. In the meanwhile, the assistant charity commissioner

under his order dated 14-08-2015 purported to prepare a voters' list

of the trust in tabular form, further directing the administrator to put

the same on notice board of the office of the trust and call upon

objections on or before 29-08-2015, directing administrator to

prepare a panchanama of publication. It appears that in furtherance

of the same, a list under panchanama had been displayed on notice

board of office of the trust on 21-08-2015. Albeit there is some

dispute that some objections presumably were submitted on behalf

of present petitioners although it is being referred to that there had

been some other objections which were sought to be submitted

beyond 29-08-2015 which were not accepted having regard to order

dated 14-08-2015.

(Judgment) (6) W.P. No. 08830 of 2017

09. In the meantime, it appears there had been some

movement before the Supreme Court under the interim applications

and the assistant charity commissioner had put on hold further

action pursuant to the aforesaid order dated 05-06-2015. Finally,

the Supreme Court under its order dated 09-05-2017 had passed

following order :-

" Heard the learned counsels for the parties and perused the relevant material.

We find no merit in the present Special Leave petitions. The Special Leave Petitions as also all pending applications therein are accordingly dismissed. The directions contained in paragraph 32 of the impugned judgment of the High Court will now be given effect to. "

10. While the Supreme Court had finally disposed of special

leave petitions, as aforesaid, miscellaneous applications came to be

moved before assistant charity commissioner. Misc. application

(inquiry) no.1077 of 2016 was preferred by one of the petitioners to

start process of election afresh. Misc. application (inquiry) no.1152

of 2017 had been by one of the respondents herein to resume the

election process from the stage from which it had been put on hold

and one more application by one Mr. J.D. Chaudhari. Thereupon, the

assistant charity commissioner has passed order disallowing misc.

application (inquiry) no. 1077 of 2017 and allowing misc. application

(Judgment) (7) W.P. No. 08830 of 2017

(inquiry) no. 1152 of 2017 observing that the Supreme Court's order

does not mean that the election process should be started afresh or

since beginning as according to the learned assistant charity

commissioner, it would mean that the election process be completed

expeditiously. It further appears that under misc. application no.

1077 of 2017, there had been one more request to change the

administrator. That request was declined under the said order.

11. Mr. N.P. Patil Jamapurkar, learned counsel appearing for

petitioners, vehemently submits that the events and rigor of

operative order under paragraph 32 in first appeals and final order

passed by the Supreme Court referred to herein above is a clear

indication of the mandate that the election process should be

undertaken by the administrator afresh as directed by the high court

under paragraph 32. According to the learned counsel, there is no

alternative to the same. He further refers to that the preparation of

voters' list including the provisional one or rather preliminary one is

assigned to the administrator under paragraph no.32 of the high

court's order, whereas the learned assistant charity commissioner

had misguided himself and exceeded the powers, having regard to

observations in paragraph 32 of the high court's order. Further, the

high court's order refers to keeping of time limit of 15 days from the

date of publication of preliminary voters' list which does not stand

(Judgment) (8) W.P. No. 08830 of 2017

satisfied in the present matter since preliminary voters' list under the

order dated 14-08-2015 had been displayed only on 21-08-2015 and

the calling of objections had been closed on 29-08-2015 without

leaving 15 days space as per order of the high court. He submits

that the whole election process pursuant to order dated 14-08-2015

is defective and outside the power, authority and jurisdiction of the

assistant charity commissioner and thus, even otherwise the election

process will have to start anew.

12. Mr. P.R. Katneshwarkar, learned counsel appearing for

respondents no.03 and 04, submits that the whole trust record had

been in possession of the assistant charity commissioner which is an

admitted position as would emerge from the contents of the writ

petition itself and in the circumstances, action if any, as

contemplated under paragraph no.32 has been processed by the

assistant charity commissioner, it is not a discrepancy at all. The

administrator himself is to be appointed by the assistant charity

commissioner under paragraph 32 of high court's order. The

enactment Maharashtra Public Trusts Act, 1950, does not disallow

such an action by the assistant charity commissioner. He further

disputes that 21-08-2015 to be date of publication of voters' list as

he purports to rely on certain documents annexed to the petition

stating that the list had been prepared and had been available on

(Judgment) (9) W.P. No. 08830 of 2017

14-08-2015, as such, 15 days requirement under paragraph 32 of

the high court's order stands satisfied. In the circumstances,

according to him, having regard to the order passed by the Supreme

Court on 01-05-2015, after vacating the stay, election means the

election pursuant to paragraph 32 of high court's order which had

already been put in process and some stages in the same had also

been completed. In the circumstances, the process of election shall

resume from the stage at which it had been stalled. He submits that

there is no alternative and there is no question of putting any

interpretation otherwise since the elections after vacating interim

relief would mean elections pursuant to paragraph 32 of the high

court's order and no other. He further submits that the elections in

the interregnum and the change reports in those respects have not

been contemplated under the order dated 01-05-2015. Subsequent

interim applications bearing I.A. nos.9-10 of 2015 in I.A. no. 7-8 of

2015 before the Supreme Court would not affect in any way order

dated 01-05-2015. He, therefore, submits that the words used "The

order of the high court be now given effect to" means the process of

election would be to proceed further from the stage at which it had

been stalled and the matter will have to be considered accordingly.

13. Taking into account aforesaid, the high court under its

order in the two first appeals appears to have directed administrator

(Judgment) (10) W.P. No. 08830 of 2017

to take over management of the trust and to go ahead with the

elections including preparation of elementary or for that matter,

provisional voters' list. It further appears that under order dated 05-

06-2015, administrator came to be appointed with a direction to take

in possession entire record of the trust and proceed with the

election. Intriguingly the assistant charity commissioner had himself

prepared the voters' list since record had been in his possession.

This exercise appears to be in excess of the order passed by the high

court in paragraph 32 of first appeals.

14. In the circumstances, although there is a dispute in

respect of the actual date of publication of voters' list and

subsequent time gap required for taking objections, it is a case

wherein it would be required that since the order of the high court is

there since 2007, to give effect to same without adding to or

subtracting from and without leaving it to interpretation, as it is.

The wording in order is plain and clear. In the circumstances, it

would be appropriate to go ahead with the election process as

directed by the high court under paragraph no.32 afresh. The order

of the assistant charity commissioner dated 07-07-2017 to that

extent stands set aside. The administrator appointed by the

assistant charity commissioner to proceed ahead pursuant to

paragraph 32 of the high court's order in first appeals no.299 of

(Judgment) (11) W.P. No. 08830 of 2017

2006 & 272 of 2006. The process be initiated and completed

expeditiously. The writ petition to that extent stands allowed. Rest

of the order declining change in administrator is not disturbed.

15. Mr. Katneshwarkar during the course of his submissions

has adverted to the observations of the high court in first appeal in

respect of one of the petitioners. It is for the authority to consider

same on its own merits.

16. Rule made absolute in the above terms. In the

circumstances, parties shall bear their own costs.

( Sunil P. Deshmukh ) JUDGE

...........

puranik / WP8830.17