Bombay High Court

Laxman Baburao Avale And Others vs Surendra Brijmohan Agarwal And ... on 8 September, 2017

Bench: K.L. Wadane

                                                                FA326-2017.odt
             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD
                         FIRST APPEAL  NO.326 OF 2017
               WITH CIVIL APPLICATION NO.9049 OF 2015 
1     Laxman Baburao Avale,                            ..     Appellants
      Age 69 years,Occu: Pensioner
      R/o Siddeshwar Housing Society,
      Old Ausa Road, Latur

2     Bhimashankar Vishwanath Siddeshware
      Age  55 years,Occu: Advocate
      R/o Old Saraf Lane, Zinganappa 
      Galli, Latur
3     Sidramappa Mallikarjunappa Aurade
      Age 58 years, Occu: Business,
      R/o Samarth Nagar, Latur
4     Gangadhar Channappa Manthale
      Age 52 years,Occu: Business,
      R/o Manthale Nagar, Latur
5     Babu s/o Mallikarjun Waghmare,
      Age 68 years, Occu: Pensioner,
      R/o Pochamma Galli, Latur

      VERSUS
1     Surendra s/o Brijmohan Agarwal,                  ..     Respondents
      Age 53 years, Occu:  Business,
      R/o 14, Siddeshwar Hsg. Society,
      Latur
2     Shri Vankatesh Education Society,
      Latur, Through
      Vasantrao Baburao Yadav,
      Age 75 years, Occu: Business,
      R/o Near Kalantri Dal Mill,
      Samrat Chowk, Nanded Road,
      Latur.

3     The Joint Charity Commissioner,
      Latur Region, Latur

4     Prashant s/o Shivappa Patne
      Age 46 years, Occu:  Agri, & 
      Secretary, Shri Vyankatesh 
      Vidyalaya, Latur.

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                                                                 FA326-2017.odt
Mr. N. P. Patil  (Jamalpurkar),  Advocate for the 
appellant,
Smt. Anjali Dube-Bajpai, Advocate for Respondent No.1,
Mr. S. S. Thombre, Advocate for Respondent No.2 

                          CORAM         : K. L. WADANE, J.

                          RESERVED ON   : 04.09.2017
                          PRONOUNCED ON : 08.09.2017

JUDGMENT:

1. In the present appeal, the appellants have

assailed the common judgment and order passed by the

District Judge-4, Latur in M.A. No. 107, 108 and 109

of 2012, dated 25.06.2015.

2. The brief facts of the case may be stated as

follows:

(1) According to the appellants they are the legal and

valid members of a Educational Society i.e. Shree

Vyankateh Education Society which was formed and

established on 15th August, 1955 and it was duly

registered as Society under the provision of

Registration of Societies Act, 1860 The said Society

was then registered as a public Trust on 26th

September, 1963, having registration No. F-25

(Osmanabad) and after formation of Latur district,

the said society came to have been re-registered at

Registration No.12 (Latur). The Society/Trust has

FA326-2017.odt its own memorandum of association. It has framed

the Rules and Regulations for manging the affairs

and administration of the trust. Mode of succession

of trusteeship is by way of election every after

five years as shown in Schedule-I of the PTR.

(2) The elections of the managing committee of the

trust was held on 16th September, 2001 in general

body meeting, wherein the present appellants were

present and the new body was elected for the period

from 16.09.2001 to 15.09.2006. Pursuant to the said

election, the change had occurred in the managing

body by way of election. Therefore, the then

Secretary, reported the change to the Deputy Charity

Commissioner on 7th January, 2002 along-with all the

necessary annexures and documents.

(3) Respondent No.1, without resorting to the

provisions of section 73A of the Maharashtra Public

Trusts Act, filed objection on 28th March, 2002 and

resisted the change report, alleging that the

present appellants were not members of the trust and

as such, they may be declared as "No members" of

the trust. The appellants have filed third party

application under section 73(A) of the Act,

FA326-2017.odt requesting to allow them to intervene in the matter

and file their say. The appellants then appeared in

the matter and filed their say and prayed that by

conducting an enquriy, they may be declared as valid

and legal members of the society. The Deputy

Charity Commissioner proceed with the matter and

after referring oral as well as documentary

evidence on record of both sides, has allowed the

Change Report No. 44/2002 by judgment and order

dated 24.08.2010. That order was assailed before the

Joint Charity Commissioner, who disposed of the

Appeals by a common judgment and order dated

17.03.2012 holding that the learned Deputy Charity

Commissioner has no jurisdiction to declare the

present appellants as legal and valid members of the

trust in an enquiry relating to the change report

filed under section 22 of the Act. Thereafter, the

present appellants filed application under section

72 (1) of the Act before the learned District Judge,

Latur by way of Appeal No. 63/2010.

(4) The learned District Judge-4, Latur partly allowed

the appeals filed by different trustees and

rejected the appeal filed by the present appellants

bearing application No. 107 of 2012 and thereby held

FA326-2017.odt that the Deputy Charity Commissioner has no

jurisdiction to decide the issue of legality of

the membership under section 22 of the Act relating

to the change report. Hence this appeal.

3. I have heard the arguments of Mr. N. P. Patil

(Jamalpurkar), learned counsel for the appellant, Smt.

Anjali Dube-Bajpai, learned counsel for Respondent

No.1, Mr. S. S. Thombre, learned counsel for

respondent No 2.

4. Looking to the limited controversy between the

parties, a very short question arises for my

consideration, i.e. Whether an independent issue of

validity of the membership of any person can be decided

in an enquiry under section 22 of the Maharashtra

Public Trust Act, when the validity and legality of the

occurrence of change report is not in dispute. My

finding thereon is in the negative for the reasons to

follow:

5. Mr. N. P.Patil Jamalpurkar, learned counsel

appearing for the appellants has argued that on

20.02.1996, the membership was given to in all 30

members including the present appellants. The

appellants have deposited the membership fees and the

FA326-2017.odt receipts of acceptance of the of fees were issued to

the appellants. Therefore, according to Mr. Patil-

Jamalpur, this was the last stage to complete the

membership of the present appellants. The learned

counsel submits that the moment, when the trust had

accepted the membership, the present appellants became

legal and valid members of the trust. Mr. Patil-

Jamalpurkar, further argued that the receipts issued in

favour of the present appellants were first in time and

subsequently receipts of membership fees were issued

in favour of the objectors. The membership of the

present appellants was approved in the meeting dated

20.02.1996.

6. As against this, Mr. S. S. Thombre, the learned

counsel for respondent No. 2 argued that subject of

membership of the present appellants was kept on record

in first meeting, and it was to be confirmed in the

next meeting. However, in the next meeting, membership

of the present appellants was not confirmed. Hence, the

appellants are not members of the trust. The most

important aspect in this case is, whether validity of

the membership can be examined in the enquiry under

section 22 of the Maharashtra Public Trust Act and such

aspect can be termed as change within the meaning of

FA326-2017.odt section 22 of the Maharashtra Public Trust Act. This

is the the only issue to be determined by this Court.

7. Mr. Patil Jamalpurkar, the learned counsel for

the appellants relied on the observations of this Court

in unreported judgment F.A. No. 1087/2014 (Baburao

Sopanrao Palmate & ors. Vs. The Joint charity

Commissioner, Latur Region). I have gone through the

observations, recorded in the above case, from which,

it reveals that the occurrence of change or the

election of the office bearers itself is challenged by

the interested person on the ground of illegal

electorate and not when the election is challenged by

anybody. In this Context, this Court has directed the

learned Assistant Charity Commissioner to examine and

decide validity of the membership of the 25 persons

enrolled in the year 2002 and also the validity of the

45 persons enrolled in the year 2007. In the present

case, the change report is not opposed by anybody and

therefore it was not necessary to have enquiry under

section 22 of the Maharashtra Public Trust Act so as

to accept or reject the change report. Examination of

the validity or invalidity of the membership of the

trust is not a change within the meaning of section

22 of the Act.

FA326-2017.odt

8. Considering the rival submissions of both the

sides, it appears that when the question of

jurisdiction of Deputy Charity Commissioner or Joint

Charity Commissioner is raised regarding issue of

Membership and its validity, when the validity and

legality of change occurred is not disputed by anybody,

then we have to see the scope of the provisions of

section 22 of the Act. Undisputedly, the Charity

Commissar has jurisdiction to decide the validity of

the membership because the question would be always

there whether the office bearers who assume the

office of trustee-ship were elected by the valid

members or not. For that purpose, the Joint Charity

Commissioner has certainly jurisdiction to decide the

validity of the members. However, Deputy Charity

Commissioner or the Joint Charity Commissioner has got

such jurisdiction only when the occurrence of change or

the election of the office bearers itself is challenged

by the interested person on the ground of illegal

electorate and not when the election is not challenged

by any body.

9. Mr. Thombre, the learned counsel has rightly

riled upon the observations of this Court in

unreported judgment in Writ Petition No.8651/2012

FA326-2017.odt (Eknath Keshav Teli&ors.Vs.Ajit Pandurang Gogte & ors),

wherein, in para 17, it is observed that:

"17. While disposing of this writ petition by setting aside the direction in clause (3) of the order of the Principal District Judge dated 27th March, 2012, I once again clarify that it would be open for the respondent No.1 to assail enrollment of 498 members by approaching a competent Court. As has been been already clarified and that aspect does not require any further elucidation that the enquiry under section 22 of the Bombay Public Trust Act, 1950 read with Rule 7 of the Bombay Public Trust Rules, 1951, would not enable the Assistant Charity Commissioner to pass substantive orders and directions and particularly beyond the scope of the enquiry before him. This Court, has already clarified that the Assistant Charity Commissioner does not possess any incidental, implied or inherent powers during the course of such enquiry so as to take note of every grievance in relation to the management and administration of the Trust and its finances."

Mr. Thombre, the learned counsel has also relied on

judgment of this court, reported in 2016 DGLS(Bom)691

(Vidarbha Youth Welfare Soceity and othrs Vs. Sandip

Ram Moghe and others), wherein, it is observe that:

"The Assistant Charity Commissioner is thus required to decide or deal with any question as

FA326-2017.odt to change under section 22 of the Act. It is thus clear from the above that the question; whether the plaintiffs were legally dismembered from the life membership or not and whether the act of their dismemberment was legal, null and void, malafide or contrary to law are the questions which cannot become change in order to attract Section 22 enquiry proceedings and, therefore, the grievance made by the plaintiffs consequently was their individual or private grievance unconcerned with the administration of the trust and its properties. Section 80 of the Act reads thus:

"80. Save as expressly provided in th is Act, no Civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealt with by any officer or authority under this Act and in respect of which the decision or order of such authority has been made final and conclusive."

Thus, the bar to invoke jurisdiction of civil court provided in this provision will not be attracted as the Assistant charity Commissioner is not required to decide or deal with any question other than the change within the meaning of section 22 read with section 17 and Rule 5, Schedule I.

From the aforesaid observation, it is crystal

clear that the Deputy Charity Commissioner has no

FA326-2017.odt jurisdiction to decide the legality and validity of the

inquiry under section 22 of the Maharashtra Public

Trust Act.

10. In view of the above, I am of the opinion that

examination of the validity and legality of the

membership of the trust is not a change within the

meaning of section 22 of the Maharashtra Public Trust

Act and the Deputy Charity Commissioner and Charity

Commissioner shall have no jurisdiction to decide the

legality and validity of the membership in an enquiry