Bombay High Court
Ghanshyamdas Sanghidas Panpalia vs Hamzabhai M.R.S.Chimthanwala & ... on 22 June, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.315 OF 2009
APPELLANT: Ghanshyamdas Sanghidas Panpalia,
aged about 58 years, R/o Panpalia
Sadan, Dhantoli, Nagpur.
-VERSUS-
RESPONDENTS: 1. Dr. Rajaram Vithoba Kumbhalkar
(Deleted)
2. Hamzabhai M. R.S. Chimthanwala, Aged
about 54 years, r/o Quaemibagh, Near
Itwari Railway Station, Nagpur.
(Deleted) 3. Pandurang Laluji Waghmare
4.
Dwarkanath S/o Ramlal Patel, Aged
about 58 years, R/o 10, Tajnagar, Katol
Road, Nagpur (On R.A.)
Shri M. G. Bhangde, Senior Advocate with Shri S. N. Tapdia
Advocate for the appellant.
Shri H. R. Gadhia, Advocate for respondent no.2.
CORAM: A.S. CHANDURKAR, J.
DATED: 22
nd JUNE, 2017.
ORAL JUDGMENT :
1. This appeal filed under Section 72(4) of the
Maharashtra Public Trusts Act, 1950 (for short, the said Act) takes
exception to the judgment passed by the learned First Additional
District Judge, Nagpur in Misc. Civil Application No.585/1997
dated 6-1-1998. By said judgment, the miscellaneous civil
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application filed by the respondents herein came to be allowed and
the order passed by the learned Joint Charity Commissioner came
to be set aside. As a consequence, the change report proceedings
bearing Change Report Enquiry No.1225/1983 came to be
rejected.
2. The appellant is the reporting trustee, according to
whom, on 13-6-1982 in the meeting of the general body of the
trust the appellant was elected as a President while respondent
nos.2 to 4 were elected as Secretary, member and Vice President of
the public trust named Sat Chikitsa Prasarak Mandal, Nagpur.
According to the appellant, after the enrollment of about nineteen
members, the aforesaid elections took place. The learned Dy.
Charity Commissioner by his order dated 18-4-1996 rejected the
Change Report. In the proceedings filed under Section 70 of the
said Act, the appeal filed by the appellant came to be allowed and
Change Report was accepted. By the impugned order, the
challenge as raised by the respondents herein came to be accepted.
3. Shri M. G. Bhangde, learned Senior Counsel for the
appellant submitted that the learned Judge of the District Court
erred in allowing the application preferred by the respondents. He
submitted that the contesting respondent was in fact present in the
meeting that was held on 13-6-1982 wherein said respondent was
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elected as the Secretary of the Trust. No objection was raised in
those proceedings and in fact, the said respondent had voluntarily
participated in the meeting. Having acquiesced to the proceedings
of the said meeting and having been elected as Secretary, the
objections raised by the said respondent were merely by way of an
afterthought. He referred to various steps taken by the said
respondent in the form of letter dated 25-6-1982 (Exhibit-56) as
well as his statements during cross-examination to submit that he
had accepted his election as Secretary without any protest.
Without considering this material on record, the learned District
Judge allowed the application. He then referred to the pleadings
of the said respondent in Writ Petition No.2441/1983 as well as
the proceedings filed by him under Section 41 A of the said Act. In
the said writ petition, the induction of the appellant and
respondent nos.2 to 4 as members was accepted and challenge was
raised with regard to enrolment of sixteen other members. It was,
therefore, submitted that having voluntarily participated in the
meeting of the General Body and not having objected to the said
proceedings, it was not open for the said respondent to object to
the Change Report. In any event, it was submitted that the change
as reported was legal and valid. In that regard, he placed reliance
upon the following decisions:
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(1) Prabhakar vs. Laxman 2016(3) Mh.L.J. 202.
(2) Madras Institute of Development Studies v. K.
Sivasubramaniyan (2016) 1 SCC 454.
4. Shri H. R. Gadia, learned Counsel for respondent no.2
supported the impugned judgment. According to him, on account
of pressure exerted on the respondent no.2 he was not in a
position to object to the proceedings in the meeting of the General
Body. He referred to the objection raised to the Change Report
and submitted that there was no valid notice to all the members
and that outsiders had participated in the same. Similarly, the
original applications made by the proposed members were also not
placed on record. He, therefore, submitted that mere participation
and subsequent election as Secretary would not preclude the said
respondent from objecting to the Change Report. He, therefore,
submitted that the impugned order was not liable to be interfered
with.
5. I have heard the learned Counsel for the parties at
length and have gone through the records of the case. I have also
given due consideration to their respective submissions.
Considering the law laid down by the Full Bench of this Court in
Prabhakar vs. Laxman 2016(2) Mh.L.J. 202, the present appeal
filed under Section 72(4) of the said Act would have to be decided
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by considering the questions of fact and law and the reasons
assigned by the Court deciding proceedings under Section 70 of
the said Act.
6. Perusal of the material on record indicates that on
30-5-1982, notice of meeting that was to be held on 13-6-1982
came to be issued (Exhibit-74). In this meeting of the trust held
on 13-6-1982, the appellant as well as respondent nos.2 to 4 were
present. The appellant came to be elected as the President while
respondent No.2 came to be elected as the Secretary. Pursuant to
this election, respondent no.2 on 25-6-1982 in his capacity as the
Secretary of the trust issued a communication to the Bank of
Maharashtra (Exhibit-56) intimating the Bank that the names of
the signatories who were to operate the accounts of the trust. The
respondent no.2 during his cross-examination admitted that he
had been removed from the post of the Secretary subsequently on
24-12-1983 and that as per the earlier body, he was the vice
President. He admitted issuance of the communication to the bank
at Exhibit-56. He further admitted that all cheques for the period
from 13-6-1982 to 24-12-1983 were signed by him in the capacity
as the Secretary and that during said period, he had also issued
notices for holding various meetings.
7. If the aforesaid material is considered, it is clear that
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respondent no.2 after accepting his election as the Secretary
started acting as such and this continued atleast till December,
1983. In this backdrop the question to be considered is whether it
would be open for the said respondent to challenge his own
election as the Secretary as per resolution passed on 13-6-1982.
8. It is well settled and needs no reiteration that having
participated in the proceedings and having thereafter acted in
pursuance of those proceedings, it would not be permissible for
such person to turn around and challenge those very proceedings
by urging various irregularities. The decision relied upon in
Madras Institute of Development Studies (supra) supports aforesaid
contention. It can be seen that the conduct of the respondent no.2
was of accepting his appointment as the Secretary and thereafter
entering into various communications and discharging duties as
the Secretary for a period of more than one year. His conduct is
such that the same precludes him from contending otherwise. He
is rather stopped from challenging those very proceedings
especially when no objection thereto was raised.
9. The learned Additional District Judge while allowing
the application has taken into consideration the stand of
respondent no.2 that he was pressurized in the meeting held on
13-6-1982 due to which he could not raise any objection earlier.
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The basis for arriving at this conclusion cannot be gathered from
the record. If the objection raised by respondent no.2 is perused,
there is no such stand taken therein that he was under pressure
due to which he could not raise any objection. If the objections
raised by him to the change report are perused, same relates to
absence of proper notice and participation of outsiders in said
meeting. However, when the pleadings of respondent no.2 in
Ground No.II of Writ Petition No.2441/1983 are seen, it is clear
that respondent no.2 had accepted without any protest the
induction of three members in the meeting held on 13-6-1982.
The objection raised was only with regard to sixteen other
members. This writ petition is shown to have been sworn on 19-
10-1983 while the present objections are filed subsequently in
December, 1983. It is thus clear that the objection as raised is
merely as an afterthought and is also not consistent with the stand
taken by respondent no.2 in the writ petition filed by him. The
learned Additional District Judge was in error in interfering with
the order passed by the learned Joint charity Commissioner. The
reasons contained in para 12 of the impugned order and the
conclusions arrived at are not in conformity with the stand taken
by respondent no.2 as well as other material on record. Hence,
said order is liable to be set aside.
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10. In the result, the following order is passed:
ORDER
The judgment dated 6-1-1998 in Misc. Civil
Application No.585/1997 is quashed and set aside. The order
dated 15-9-1997 passed by the learned Joint Charity
Commissioner, Nagpur stands restored. Change Report
No.125/1983 stands accepted.
The second appeal is allowed in aforesaid terms. No
costs.
JUDGE
/MULEY/
