Bombay High Court
Dr. Durwas Nandlal Kapgate And ... vs Assistant Charity Commissioner, ... on 9 January, 2018
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 7109/2017
1] Dr. Hemkrushna Shamraoji Kapgate
Aged about 72 years,
Occupation-Medical Pract.
R/o Sakoli, Tah. Sakoli,
Dist. Bhandara,
Member of Adhoc Committee,
Secondary Education Society, Sakoli ... PETITIONER
...V E R S U S...
1] The Assistant Charity Commissioner,
Bhandara, Dist. Bhandara
2] Adv. Rajendra Sadashiv Lange,
Aged about 67 years,
Occupation-Legal Pract.
R/o Kawatha, Po. Barabhati,
Tah. Arjuni (Mor), Dist. Gondia
Secretary of Adhoc Committee,
Secondary Education Society, Sakoli
3] Dr. Durwas Nandlal Kapgate,
Aged about 57 years,
Occupation-Medical Pract.
4] Chhagan Bhiwaji Kapgate,
Aged about 76 years,
Occupation-Agriculturist
5] Chhagan Chintaman Gobade,
Aged about 81 years,
Occupation-Agriculturist,
All R/o Toli Ward, Sakoli,
Tah. Sakoli, Dist. Bhandara and are
the members of adhoc committee,
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Secondary Education Society, Sakoli ... RESPONDENTS
with
WRIT PETITON NO. 7161/2017
1] Dr. Durwas Nandlal Kapgate,
Age 59 years
2] Chhagan Bhiwaji Kapgate,
Age 75 years
3] Chhagan Chintaman Gobade,
Age 82 years
All members of Ad-hoc Committee
and residents of Toli Ward, Sakoli,
District Bhandara ..... PETITIONERS
...V E R S U S...
1] Assistant Charity Commissioner,
Bhandara
2] Adv. Rajendra Sadashiv Lanje-
Secretary Ad-hoc Committee,
Age 67 years and resident of Kawatha,
Post Barabhati, Taluka Arjuni Morgaon,
District Gondia
3] Dr. Hemkrushna Shamraoji Kapgate,
(Member-Ad-hoc Committee) and
resident of Sakoli, District Bhandara ... RESPONDENTS
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===================================
W.P. No. 7109/2017
Shri A.P. Thakare, Advocate for the petitioner
Shri A.M. Balpande, AGP for the respondent no. 1
Shri M.P. Khajanchi, Advocate for the respondent no. 2
Shri S. Borkar, Advocate for the respondent nos. 3 to 5
Shri K.H. Deshpande, Sr. Advocate a/b Shri A.M. Sudame,
Advocate for the intervenor
W.P No. 7161/2017
Shri S. Borkar, Advocate for the petitioners
Shri A.M. Balpande, AGP for the respondent no. 1
Shri M.P. Khajanchi, Advocate for the respondent no. 2
Shri A.P. Thakare, Advocate for the respondent no. 3
Shri K.H. Deshpande, Sr. Advocate a/b Shri A.M. Sudame,
Advocate for the intervenor
===================================
CORAM:- Z.A. HAQ,J.
th
DATED :- 9 JANUARY, 2018
ORAL JUDGMENT :-
CAW No. 2882/2017 in Writ Petition No. 7161/2017
Writ Petition No. 7161/2017 is filed by three members
out of five members of the ad-hoc committee appointed by the
Joint Charity Commissioner under Section 47 of the Maharashtra
Public Trusts Act, 1950. The applicants claim that they are elected
as members/trustees in the election held on 04/03/2016 and in
respect of which the change report is pending.
Considering the facts of the case, the applicants are
permitted to get themselves impleaded as the respondent nos. 4
and 5. The civil application is allowed accordingly.
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Writ Petition No. 7161/2017 and Writ Petition No. 7109/2017
These two writ petitions are disposed by the common
judgment as both the writ petitions are arising out of the same
order passed by the Assistant Charity Commissioner.
Heard.
Rule. Rule made returnable forthwith.
2] This is a classic case of misuse of the process of law by
the parties.
The Secondary Education Society, Sakoli is a public
trust registered under the provisions of the Maharashtra Public
Trusts Act, 1950 (hereinafter referred as "the Act of 1950").
Change Report No. 289/1999 was filed by Dr. Hemkrishna
Shamraoji Kapgate, informing the Assistant Charity Commissioner
the change which occurred because of elections alleged to have
been held on 27/02/1999. Another change report bearing No.
290/1999 was filed by Nandlal Pagaji Kapgate informing the
change which occurred according to him, as per the elections
alleged to have been held on 04/03/1999. By order dated
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28/11/2001, the Assistant Charity Commissioner rejected the
Change Report No. 289/1999, and accepted the Change Report
No. 290/1999 and directed that the entries in Schedule I of the
public trusts register be amended. The order passed by the
Assistant Charity Commissioner accepting the Change Report
No. 290/1999, was challenged by Dr. Hemkrishna Shamraoji
Kapgate in Appeal No. 54/2001. This appeal was dismissed by the
Joint Charity Commissioner. Simultaneously, the learned Joint
Charity Commissioner appointed the ad-hoc committee of five
members, exercising his jurisdiction under Section 47 of the Act of
1950.
The petitioners in both the writ petitions are the
members of this ad-hoc committee. Clause 19 of the operative
order passed by the learned Joint Charity Commissioner on
27/03/2003, by which the ad-hoc committee was appointed is
relevant and it reads as follows:-
"(19) The entire process of election shall
be completed by the end of June, 2003 and from 1-7-
2003, the newly elected executive body shall take
over the administration of the trust from the ad-hoc
body."
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This order passed by the learned Joint Charity
Commissioner on 27/03/2003 was challenged before the District
Court under Section 72 (1) of the Act of 1950. The learned District
Judge dismissed the application and maintained the order passed
by the Joint Charity Commissioner. The challenge was further
carried in Second Appeal No. 530/2003 which is decided on
17/03/2009. The second appeal is dismissed. The learned
advocates for the respective parties have submitted that because of
an interim order which was passed by this Court in Second Appeal
No. 530/2003, the elections as directed by the Joint Charity
Commissioner by order dated 27/03/2003, could not be held.
3] The claim of the petitioners in Writ Petition
No. 7161/2017 is that the elections were held on 31/03/2009 and
Change Report No. 356/2009 was filed. According to these
petitioners, Change Report No. 356/2009 is dismissed on
09/03/2015. It is informed that this order is challenged in appeal
which is pending.
4] The respondents (private parties) claim that the
elections were held on 29/06/2014 and Change Report
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No. 88/2014 was filed which is dismissed by the Assistant Charity
Commissioner on 07/05/2015. This order dated 07/05/2015 is
challenged in appeal which is pending before the Joint Charity
Commissioner.
The respondents (private parties) further claim that
again the elections are held on 26/01/2016 and Change Report
No. 65/2016 is filed which is pending before the Assistant Charity
Commissioner.
5] Surprising part of it is that, because of the various
proceedings, the ad-hoc body which was appointed by the Joint
Charity Commissioner by order dated 27/03/2003, the
appointment being till 30/06/2003 continued. The authorities
have not passed any order continuing the ad-hoc body from
01/07/2003. Now by the impugned order, the Assistant Charity
Commissioner has directed deletion of names of the three
members of the ad-hoc body (who are the petitioners in Writ
Petition No. 7161/2017). This exercise is undertaken by the
Assistant Charity Commissioner under Section 26 of the Act of
1950.
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6] The submission on behalf of the petitioners is that as
the ad-hoc committee is appointed by the Joint Charity
Commissioner, the Assistant Charity Commissioner cannot direct
deletion of names of the three members of the ad-hoc body,
exercising the powers under Section 26 of the Act of 1950. It is
further submitted that Change Report No. 88/2014 is dismissed
and therefore, the claim of the respondents that they were elected
in the elections held on 29/06/2014 is not accepted by the
Assistant Charity Commissioner and as Change Report
No. 65/2016 is still pending, therefore, the respondents cannot
claim the right to administer the affairs of the public trust and the
institutions managed by it. The petitioners claim that they are
entitled to continue as the members of the ad-hoc body until they
are discharged by the competent authority according to law.
7] The submission made on behalf of the respondents
(private parties) is that by the order passed on 27/03/2003 the
ad-hoc body was appointed till 30/06/2003 and the learned Joint
Charity Commissioner had specifically directed that the elections
should be held till the end of June, 2003 and the newly elected
body to take over the administration of the public trust from the
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ad-hoc body from 01/07/2003 and therefore the ad-hoc body has
no right to continue after 01/07/2003.
8] It is rightly submitted on behalf of the petitioners that
the names of the three members of the ad-hoc body cannot be
deleted resorting to the powers under Section 26 of the Act of
1950. Section 26 of the Act of 1950 only enables the authorities to
maintain the register kept under Section 17 of the Act of 1950 and
to amend the entries in accordance with the decisions of the
authorities. Section 26 of the Act of 1950 does not confer any
power on the authority to adjudicate any issue. Furthermore, the
ad-hoc body was appointed by the Joint Charity Commissioner,
and therefore the names of the three members of the ad-hoc body
cannot be deleted by the Assistant Charity Commissioner who is
subordinate to the Joint Charity Commissioner.
9] Though the impugned order directing deletion of
names of the three members of the ad-hoc body from Schedule-I of
the public trusts register is without power and is unsustainable,
the ad-hoc body cannot be permitted to continue. These petitions
arise out of the proceedings under the Act of 1950. It is well
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settled that the authorities under the Act of 1950 are custodian of
the public trust and its properties. In my view, this Court while
examining the legality of the order passed by the Assistant Charity
Commissioner can exercise the powers conferred by the Act of
1950 on the authorities under that Act, and issue appropriate
directions for protecting the interests of the public trust and its
properties.
10] As recorded earlier, the appointment of the ad-hoc
body was till June, 2003 and the learned Joint Charity
Commissioner, while appointing the ad-hoc body was very clear in
his mind that the ad-hoc body should not continue from
01/07/2003. Taking advantage of the various proceedings, the ad-
hoc body continued even after June, 2003 and the authorities have
turned a blind eye to the factual position and have overlooked
whether the ad-hoc body can continue after June, 2003.
Moreover, the ad-hoc body has failed to perform its
obligation of conducting the elections till June, 2003. And not only
this, the members of the ad-hoc body started creating disputes in
the administration of the institutions managed by the public trust.
In the facts of the case, the following order is passed:-
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O R D E R
1] The impugned order is set aside.
2] However, it is directed that the members of
the ad-hoc body appointed by the order passed by the
learned Joint Charity Commissioner on 27/03/2003
shall not administer the public trust and shall not
interfere in the management of the institution
administered by the public trust.
3] The learned Joint Charity Commissioner,
Nagpur shall take over the charge of the public trust
and its institution forthwith.
4] The learned Joint Charity Commissioner
shall make appropriate arrangements, including the
appointment of new ad-hoc body if felt necessary to
administer the public trust and the
institution/institutions manged by the public trust.
5] The proceedings i.e. the change report and
the pending appeals arising from the order/orders
passed on the change report shall be disposed by the
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concerned authorities expeditiously and in any case till
30/06/2018.
The writ petitions are disposed in the above terms. In
the circumstances, the parties to bear their own costs.
JUDGE
Ansari
