Bombay High Court
Womens Education Society, Nagpur ... vs Deputy Charity Commissioner, ... on 27 June, 2017
Bench: V.A. Naik
2706WP231.15-Judgment 1/5
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 231 OF 2015
PETITIONER :- Womens Education Society - Having PTR
Registration No.F-256(N) - Through its
Secretary - Having its office at Subhedar
House, Ganjakhet, Nagpur.
...VERSUS...
RESPONDENT :- Deputy Charity Commissioner, Civil Lines,
Nagpur.
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Mr.S.V.Purohit, counsel for the petitioner.
Mr.H.R.Dhumale, Asstt.Govt.Pleader for the respondent.
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CORAM : SMT. VASANTI A NAIK &
ARUN D. UPADHYE
, JJ.
DATED : 27.06.2017
O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)
By this writ petition, the petitioner-education society
challenges the order of the Deputy Charity Commissioner, dated
27/06/2014 so far as it directs the new board of trustees to file an
application under section 50-A of the Maharashtra Public Trusts Act for
framing the scheme, within a time frame.
2706WP231.15-Judgment 2/5
2. The petitioner is a trust that runs an educational
institution from the year 1951-52. The petitioner was registered under
the provisions of the Bombay Public Trusts Act on 16/04/1962. As per
the memorandum and articles of association of the trust, the affairs of
the society need to be managed by the committee members whose
names are mentioned in schedule-A attached to the memorandum of
association and any vacancy occurring in the membership of the
committee could be filled up by nomination, by the remaining members
of the trust. The reporting trustee filed a change report before the
Deputy Charity Commissioner on 16/01/2013 informing about the
change in the managing committee. Since four trustees had expired,
four new trustees were nominated by the remaining members of the
trust. The Deputy Charity Commissioner accepted the change report.
However, a direction was issued to the new board of trustees to file an
application under section 50-A of the Act for framing a scheme.
3. Shri Purohit, the learned counsel for the petitioner, took
this court through the memorandum and articles of association of the
trust to point out that the affairs of the trust were liable to be managed
by the committee of not less than seven members and not more than
twelve. It is submitted that as per the articles of association, if a
vacancy occurs in the managing committee, the same is required to be
2706WP231.15-Judgment 3/5
filled up by nomination, by the remaining members of the trust. It is
submitted that the four vacancies that occurred due to the death of the
trustees were filled by nomination, by the remaining members of the
trust. It is submitted that the Deputy Charity Commissioner, however
held that in a democratic country it would be necessary for the trust to
hold an election after every five years and the memorandum and
articles of association of the trust cannot provide for filling up of
vacancies in the managing committee of the trust by nomination, by the
remaining members of the trust.
4. Shri Dhumale, the learned Assistant Government Pleader
appearing for the respondent-Deputy Charity Commissioner, has
supported the order of the authority. It is however fairly admitted that
the memorandum and articles of association of the trust provide for
filling up of the vacancies in the managing committee by nomination,
by the remaining members of the trust. It is however submitted that
since the provisions of the memorandum and articles of association of
the petitioner-trust are different from the provisions that find place
in the memorandum and articles of association of the other trusts,
the Deputy Charity Commissioner must have issued the impugned
direction.
2706WP231.15-Judgment 4/5
5. On a reading of the documents annexed to the writ
petition, specially the memorandum and articles of association of the
trust, it appears that the Deputy Charity Commissioner could not have
directed the managing committee of the trustees to apply under section
50-A of the Act for framing a scheme. Nothing is pointed out on behalf
of the respondent to show that the memorandum and articles of
association of a trust cannot provide for filling up of the vacancies of the
trustees by nomination, by the remaining trustees of the trust. Nothing
is pointed out on behalf of the respondent to show that it would be
necessary for a trust to fill up the vacancies in the managing committee
of the trust only by conducting an election and not by nomination. In
the absence of anything in the Act or the Rules to show that the clauses
in the memorandum and articles of association are illegal, the
impugned direction issued by the Deputy Charity Commissioner cannot
be sustained. Also, fail to gauge as to how the direction could have
been issued under section 41-A of the Act, more so when it is not
observed by the Deputy Charity Commissioner that the trust was not
administered properly or the income thereof was not accounted for
and / or the property of the trust was in danger of being wasted,
alienated, damaged or wrongfully sold, removed or disposed of. In this
case, we do not find that there are any factions in the trust as there is
no dispute inter se between the members of the trust. If that be so, such
2706WP231.15-Judgment 5/5
a direction was all the more, not necessary, specially when nobody had
prayed for the same.
6. In this view of the matter, we allow the writ petition. The
impugned order of the Deputy Charity Commissioner is hereby quashed
and set aside, so far it directs the newly constituted managing
committee to apply under section 50-A of the Act for framing a scheme.
Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
KHUNTE
