Manmatppa Pandubappa Lokhande vs The Deputy Charity Commissioner ...
2021 Latest Caselaw 3482 Bom

                                                                          wp1173.21
                                       -1-


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                          WRIT PETITION NO. 1173 OF 2021


 Manmatappa Pandubappa Lokhande                           ...Petitioner

          versus

 The Deputy Charity Commissioner and others               ...Respondents

                                     .....
 Mr. R. N. Dhorde, senior counsel i/b Mr. V. R. Dhorde with Mr. P.S. Dighe,
 advocate for the petitioner
 Mr. S. B. Pulkundwar, A.G.P. for respondent No.1
 Mr. S. V. Natu, advocate for respondent No.2.
 Mr. V. G. Kodale, advocate for respondent No.3
 Mr. R. S. Deshmukh, senior counsel i/b Mr. V.G. Kodale, advocate for
 respondent No.4.
                                       .....

                                             CORAM : V. K. JADHAV, J.

DATED : 24th FEBRUARY, 2021

PER COURT:-

1. By consent, heard finally at admission stage.

2. The petitioner is original reporting trustee in Change Report

inquiry No. 1420 of 2019, which was initially filed before the Assistant

Charity Commissioner, Latur and is now transferred to respondent

No.1 Deputy Charity Commissioner, Beed. Respondent Nos. 2 to 4

have filed objection to the Change Report inquiry No. 1420 of 2019.

3. By way of present writ petition, the petitioner is challenging the

legality and validity of the common impugned order dated 04.01.2021

passed by the learned Deputy Charity Commissioner, Beed below

wp1173.21

Exh.15 and 21, thereby rejecting the application Exh.15 seeking

provisional acceptance of the change report. Hence, this writ petition.

4. The change report pertains to the Trust viz. Mahatma

Basweshwar Shikshan Sanstha, Latur having registration (PTR) No.

F-52, registered under the provisions of Maharashtra Pubic Trust Act,

1950 (for short "the Trust Act") as well as the Societies Registration

Act, 1860. The said Trust runs various schools and colleges at Latur

as well as at Ambejogai. By order dated 22.02.2018, the Charity

Commissioner, State of Maharashtra dissolved all the bodies of the

Trust claiming to be elected and had filed various change reports

before the Assistant Charity Commissioner, Latur. Learned Charity

Commissioner, State of Maharashtra has further appointed the

temporary committee and directed to hold the elections through the

office of the Deputy Charity Commissioner, Latur. Accordingly, the

Deputy Charity Commissioner, Latur had conducted the elections

and the change report inquiry No. 5548 of 2018 was submitted

before the Assistant Charity Commissioner-3, Latur. By order dated

18.08.2018, the Assistant Charity Commissioner-3, Latur has

provisionally accepted the said change report bearing inquiry No.

5548 of 2018 by which the managing committee of the trust was

elected. However, the group headed by respondent No.2 had

approached to this Court by filing writ petition No. 8593 of 2018

challenging the order passed by the learned Assistant Charity

Commissioner, Latur thereby provisionally accepting the change

wp1173.21

report inquiry No. 5548 of 2018. By order dated 22.02.2019 this

Court (Coram: Ravindra V. Ghuge, J.) has disposed of the said writ

petition alongwith connected writ petitions with certain directions as

detailed in para 34 of the said order.

5. Being aggrieved by the said judgment and order dated

22.02.2019 passed by this Court in writ petition No. 8593 of 2018, the

respondent No.2 herein had filed Special Leave to Appeal (Civil)

8089-8090/2019 before the Supreme Court. By order dated

29.03.2019, the Supreme Court has dismissed the said S.L.P.

observing that the order passed by the High Court is eminently just.

6. In pursuance to the directions issued by this Court in the order

dated 22.02.2019 passed in writ petition No. 8593 of 2018, the Joint

Charity Commissioner, Latur appointed the Assistant Charity

Commissioner, Beed as an election officer/Returning officer. The

election programme was published on 16.04.2019. Pursuant to the

said election programme, the elections claim to have been conducted

on 05.05.2019 and the Election Officer has published the list of

elected members on 05.05.2019 itself. The learned Joint Charity

Commissioner, Latur, who had taken over the administration of the

trust pursuant to the directions issued by this Court in the aforesaid

writ petition, handed over the charge to the newly elected managing

committee by handing over the banks of account, cheque books and

other relevant documents on 07.05.2019. Further pursuant to the

wp1173.21

said elections held on 05.05.2019, the petitioner has reported the

said change on 20.05.2019, which was registered as change report

inquiry No. 1420 of 2019.

7. Mr. Dhorde, learned senior counsel for the petitioner submits

that respondent No.2 and his group members are creating hurdles in

the working of the trust with malafide intention. The same is evident

from the act of respondents, as they have sent through post on

08.05.2019 and 13.05.2019 respectively, the objections to the office

of the Assistant Charity Commissioner, Latur for the proposed

change. The said objections were taken on record after registration

of the change report inquiry No. 1420 of 2019. Furthermore, after

filing of the said change report, respondent No.2 herein, who has lost

the elections, with malafide intention to prolong the provisional

acceptance of the change report, filed an application for transfer of

the change report inquiry No. 1420 of 2019 pending in the file of

Assistant Charity Commissioner, Latur to any other Assistant Charity

Commissioner in the region. Learned senior counsel submits that

respondent No.2 has filed an application Exh.13 stating therein that

the transfer application is pending, no orders to be passed in the

proceeding. Moreover, the petitioner has also filed an application

Exh.15 under Section 22 of the Trust Act for provisional acceptance

of the change report and for looking after the administration of the

Trust. The learned in-charge Joint Charity Commissioner, Latur by

order dated 27.08.2019 allowed the application Exh.14 filed in the

wp1173.21

said transfer petition and stayed further proceedings of the change

report No. 1420 of 2019 pending before the Deputy Charity

Commissioner, Latur till the final disposal of the transfer application.

Further, the learned Joint Charity Commissioner, Latur by its

judgment and order dated 23.10.2019 allowed the application 145 of

2019 filed by respondent No.2 for transfer of change report and

transferred the said change report inquiry from the Deputy Charity

Commissioner, Latur to the Deputy Charity Commissioner, Beed.

8. Mr. Dhorde, learned senior counsel for the petitioner submits

that being aggrieved and dissatisfied with the order date 23.10.2019

passed by the Joint Charity Commissioner, the petitioner has

approached to this Court by filing writ petition No. 15157 of 2019.

This Court by order dated 16.12.2019 has granted stay to the order

passed by the Joint Charity Commissioner, Latur transferring the

change report inquiry from Deputy Charity Commissioner, Latur to

the Deputy Charity Commissioner, Beed. By order dated 14.12.2020

this Court has dismissed the said writ petition No. 15157 of 2019 by

confirming the order of transfer of the proceeding from the office of

Deputy Charity Commissioner, Latur to the office to Deputy Charity

Commissioner, Beed.

9. Mr. Dhorde, learned senior counsel for the petitioner submits

that the petitioner had therefore, requested the Deputy Charity

Commissioner, Beed for deciding the application below Exh.15. By

wp1173.21

order dated 04.01.2021 the Deputy Charity Commissioner, Beed

rejected the application Exh.15.

10. Mr. Dhorde, learned senior counsel for the petitioner submits

that the record would indicate that the new managing committee is

looking after the day to day affairs of the trust and administration of

the schools and colleges as on today. Learned senior counsel

submits that the election was conducted in terms of the direction

given by this Court under the supervision of the Charity authorities.

Learned senior counsel submits that once the managing committee

has been elected by following due process of law and the change

has been reported, in terms of the provisions of Section 22(1) of the

Trust Act, the Deputy Charity Commissioner, Beed should have

provisionally accepted the change. The same is also necessary for

day to day affairs and administration of the Trust. Learned senior

counsel submits that since the date of election and taking over the

charge, the bank accounts are being operated under the signatures

of newly elected members, Secretary and Principal of the college.

However, due to rejection of the application seeking provisional

acceptance of the change report, respondent Nos. 2 to 4 are creating

hurdles in the smooth administration of the trust.

11. Mr. Dhorde, learned senior counsel for the petitioner submits

that respondent No.1 Deputy Charity Commissioner, Beed has failed

to consider the objects to the amendment to Section 22 of the Trust

wp1173.21

Act inserting the provisional acceptance of the change report during

pendency of inquiry. Learned Deputy Charity Commissioner, Beed

has erroneously observed that the present petitioner has not

prosecuted the said change report inquiry diligently and kept it

pending for 19 to 20 months. Learned senior counsel submits that

respondent No.2 had filed transfer application No. 145 of 2019 before

the Joint Charity Commissioner for transfer of the change report

inquiry No. 1420 of 2019 with some oblique motive. However, while

deciding the application Exh.15 the Deputy Charity Commissioner,

Beed has not considered this material aspect of the case.

Respondent No.1 authority has erred in holding that as the

provisional acceptance of change report is not decided within 15

working days on its filing and the same therefore, now cannot be

considered.

12. Mr. Dhorde, learned senior counsel for the petitioner submits

that in the identical set of fact, this Court by order dated 23.01.2020

in writ petition No. 11633 of 2019 alongwith connected writ petitions

granted Rule with specific direction by way of interim relief that the

newly elected managing committee to manage and administer the

day to day affairs of the petitioner-Trust with certain conditions till

disposal of the writ petition. Learned senior counsel submits that as

per the judicial propriety the same order should be passed in this writ

petition.

wp1173.21

Learned senior counsel for the petitioner, in order to

substantiate his submissions, placed reliance on the following

judgments:-

I) Bir Bajrang Kumar vs. State of Bihar and others, reported in AIR 1987 SC 1345;

ii) Real Estate Agencies vs. State of Goa and others, reported in (2012) 12 SCC 170.

13. Mr. Deshmukh, learned senior counsel for respondent No.4

submits that admittedly application Exh.15 seeking provisional

acceptance of change report could not be decided within 15 working

days in terms of the provisions of section 22 of the Trust Act. It was

beyond the control of authority concern to decide the said application

Exh.15. Furthermore, it is apparent from the record that the petitioner

herein was not interested in prosecuting the said application for a

long period. Learned senior counsel submits that by no stretch of

imagination, it can be said that respondent No.2 with some oblique

motive has filed transfer petition to prolong the hearing of change

report inquiry No. 1420 of 2019. Learned senior counsel submits that

the Joint Charity Commissioner, Latur has allowed the said transfer

petition filed by respondent No.2 and the said order was confirmed

by this Court by order dated 14.12.2020 in writ petition No. 15157 of

2019. Learned senior counsel submits that it is also evident from the

record that even the transfer of the said change report inquiry No.

wp1173.21

1420 of 2019 from the Deputy Charity Commissioner, Latur to the

Deputy Charity Commissioner, Beed, the petitioner and his counsel

remained absent continuously and thereafter due to outbreak of

COVID-19 pandemic situation, application Exh.15 could not be heard

for a long period. Learned senior counsel submits that respondent

Nos. 2 to 4 have submitted their objections to the said application, as

the change said to have been caused without adhering to the

direction given by this Court by order dated 22.02.2019 in the writ

petition No. 8593 of 2018 and there is blatant violation of the

provisions of law.

14. Mr. Deshmukh, learned senior counsel for the respondent

No.4 submits that the said objection petitions came to be taken on

record after registration of change report inquiry No. 1420 of 2019.

Learned senior counsel submits that there is total period of 1 year, 7

months and 4 days after filing of the change report inquiry No. 1420

of 2019 and out of which because of filing of the transfer petition etc.

the period of 4 months and 20 days was consumed by the

respondent Nos. 2 to 4, however, for long period of 1 year and

almost 2 months, the petitioner remained inactive for not only

prosecuting his application Exh.15 but also the change report.

Learned senior counsel has invited my attention towards various

proceedings initiated by the petitioner. However, the same is not

relevant for the present discussion. Learned senior counsel has also

pointed out that recently the Joint Charity Commissioner, Latur has

wp1173.21

suo moto directed inquiry under Section 41-D of the Trust Act against

the petitioner and the elected trustees. The Deputy Charity

Commissioner, Beed has thus rightly rejected application Exh.15 with

further directions in terms of clause 3 of the operative part of the

order to all the parties to take necessary steps for the progress of the

change report and to decide the same on merits within 90 days. All

parties are directed to note that no adjournment will be granted

except the circumstances beyond their control. Learned senior

counsel Mr. Deshmukh submits that the said period of 90 days is yet

not over and in terms of the order impugned, the Deputy Charity

Commissioner, Beed may be directed to dispose of the change

report inquiry No. 1420 of 2019 within remainder period. The writ

petition may be dismissed.

15. I have also heard learned counsel appearing for the

respondent No. 2 and respondent No.3, who adopted the

submissions advanced by Mr. R. S. Deshmukh, learned senior

counsel appearing for respondent No.4. I have also heard the

learned A.G.P. for respondent No.1.

16. I have carefully considered the submissions advanced by

learned senior counsel/counsel for the respective parties. With their

able assistance, I have perused the pleadings, grounds taken in the

petition, annexures thereto and reply filed by the concerned

respondents.

wp1173.21

17. There is chequered history of this trust. However, recently

this Court (Coram: Ravindra V. Ghuge, J.) by order dated 22.02.2019

has dealt with writ petition No. 8593 of 2018 alongwith bunch of writ

petitions, pertaining to this trust and in para 34 of the said order has

issued directions to the Joint Charity Commissioner, Latur, which

reads as under:-

"34. Considering the above, I am issuing the following

directions to the Joint Charity Commissioner, Latur :-

[a] The Jt. Charity Commissioner shall take charge of the

trust forthwith.

[b] The said authority shall issue a notice to be served upon the existing members including the 40 members and excluding the 21 members, indicating that the members would be at liberty to apply for patron membership in between 01/03/2019 till 15/03/2019.

[c] The said authority would scrutinize the applications in between 16/03/2019 till 30/03/2019 as per the eligibility under the amended Constitution of 1994.

[d] The list of patron members would therefore be declared on 01/04/2019 alongwith the valid voters' list.

[e] The said authority shall then proceed to hold the elections to all the posts of the Trust in accordance with the Constitution and the bye-laws by deputing a competent person(s) not below the rank of Assistant Charity Commissioner for conducting such elections.

wp1173.21

[f] After the new governing council is elected, the 21 devotee members are permitted to approach the governing council for considering their membership applications filed earlier on the basis of the amounts that they have deposited. Needless to state, this is an option which these 21 members may ignore if they intend to pursue the litigation pertaining to the amendment of 2011 and their induction as devotee members, before the appropriate Forum."

18. The Hon'ble Supreme Court by order dated 29.03.2019 in

Special Leave to Appeal (Civil) No. 8089-8090 of 2019 has also

confirmed the order dated 22.02.2019 passed by this Hon'ble Court

in writ petition No. 8593 of 2018.

19. Pursuant to the said directions, the election was conducted

and the results of the election was pronounced on 05.05.2019. It

further appears that before submission of the change report for

recording the said change, respondent Nos. 2 to 4 have raised

objection on 13.05.2019, raising various issues therein. It further

appears that the said change report was registered on 20.05.2019 as

change report inquiry No. 1420 of 2019. On 27.05.2019, respondent

No.2 herein filed an application No. 145 of 2019 before the Joint

Charity Commissioner, Latur Region, Latur for transfer of the

proceeding of change report No. 1420 of 2019 pending before the

learned Assistant Charity Commissioner, Latur to any other

competent authority in the region. Respondent No.2 has made

wp1173.21

specific allegation against the Charity authorities about bias mind etc.

It appears that the learned Deputy Charity Commissioner, was the

Election officer for the elections of the said Trust in the year 2018

and the change report inquiry No. 1420 of 2019 was also pending

before the said authority for the subsequent elections took place as

per the order of this Court by setting aside the earlier election

conducted by the Deputy Charity Commissioner as election Officer.

It further appears that in the meanwhile, during pendency of the said

transfer petition No. 145 of 2019, the petitioner herein had filed an

application before the Charity Commissioner, State of Maharashtra

for transfer of petition No. 145 of 2019 pending before the Joint

Charity Commissioner, Latur. By order dated 23.10.2019 the Joint

Charity Commissioner, Latur Region, Latur has allowed the said

transfer application No. 145 of 2019 and thereby withdrawn the

change report inquiry No. 1420 of 2019 pending in the file of learned

Deputy Charity Commissioner, Latur and transferred it to the Deputy

Charity Commissioner, Beed with consequential directions for

sending the record and proceeding to the Deputy Charity

Commissioner, Beed.

20. It further appears that being aggrieved by the same, the

petitioner herein has preferred writ petition No. 15157 of 2019 and by

order dated 16.12.2019 this Court has stayed the effect of the said

transfer order dated 23.10.2019 with specific direction that the

proceeding so transferred to the Deputy Charity Commissioner, Beed

wp1173.21

shall be adjourned. Finally, by order dated 14.12.2020, this Court

(Coram: Mangesh S. Patil, J.) has dismissed the writ petition No.

15157 of 2019 by confirming the order passed by the Joint Charity

Commissioner, Latur.

21. So far as application Exh.15 is concern, the same was filed by

the petitioner on 31.05.2019 for provisional acceptance of change

report No. 1420 of 2019. It may not be relevant to consider the rival

claims of both the parties as to who has delayed the hearing of the

said application Exh.15, however, it appears that practically, due to

the orders passed by the Charity authorities in the pending transfer

petition No. 145 of 2019 so also in the writ petition challenging the

said order of transfer, the Deputy Charity Commissioner, Beed could

not hear the said application Exh.15 and pass effective orders on it.

It further appears that after a long gap of more than a year there is no

propriety in accepting the change report provisionally. In view of the

same, I find no error in the impugned order passed by the Deputy

Charity Commissioner, Beed. The learned Deputy Charity

Commissioner, Beed has further taken care by directing the parties

to co-operate the authority in deciding the change report within a

period of 90 days as per the mandate of amended provisions of

Section 22 of the Trust Act.

22. Learned senior counsel Mr. Dhorde, has referred to the order

passed by this court on 23.01.2020 in writ petition No. 11633 of 2019

wp1173.21

pertaining to Shardopasak Shikshan Sanstha, Aurad Shahajani. By

order dated 08.07.2019, while disposing of writ petition No. 7377 of

2019 pertaining to the said Shardopasak Shikshan Sanstha and

others, this court (Coram: Ravindra V. Ghuge, J.) has observed that

the Deputy Charity Commissioner, Latur has disposed of the

application Exh.2 filed by the petitioner under Section 22 of the

Maharashtra Public Trust Act, 1950 by concluding that no order can

be passed on said application until all the litigating sides are heard.

By considering the consensus of the parties, for hearing on

application Exh.2 afresh by the Deputy Charity Commissioner, Latur

the petition came to be disposed of with some directions. The

Deputy Charity Commissioner, Latur was directed to consider the

contentions of the parties and pass order on merits of the application.

Despite the said directions given by this court, as detailed above, the

learned Deputy Charity Commissioner, Latur has passed a cryptic

order, which is impugned in writ petition No. 11633 of 2019. In view

of the same, by order dated 23.01.2020 this Court in the said writ

petition No. 11633 of 2019 has granted Rule with certain direction

empowering the managing committee to look after the day to day

affairs of the petitioner trust with certain conditions.

23. Learned senior counsel Mr. Dhorde has placed reliance on

the judgment of Supreme Court in the case of Bir Bajrang Kumar

(supra) wherein the Supreme court has held that when two writ

petitions involving identical point, one admitted but other dismissed

wp1173.21

by the same High Court, gives rise to clear the possibility of

contradictory judgments being rendered by the High Court in same

case.

24. In the given set of facts, which are beyond the control of the

parties so also the Charity authorities to pass an appropriate order

about provisional acceptance of the change report, it would be just

and appropriate if the change report inquiry proceeding No. 1420 of

20129 are to be disposed of at the earliest.

25. Learned senior counsel Mr. Dhorde has also placed reliance

on the judgment of Supreme Court in the case of Real Estate

Agencies (supra) wherein the Supreme court in para 15 has made

the following observations:-

"15. The aforesaid detailed recital of the facts projected by the parties had become necessary as the order of the High Court assailed in the present SLP does not contain any reference to the relevant circumstances in which the High Court had passed the impugned order or the reasons why the petitioner was relegated to the remedy of initiating a civil action. Time and again this Court has emphasized that such a course of action by a Court cannot lead to a legally acceptable conclusion inasmuch as the manner of reaching the decision and the reasons therefor are sacrosanct to the judicial process. However, we do not wish to dilate the aforesaid aspect of the matter any further in view of the clear and consistent insistence of this Court on the aforesaid fundamental requirement."

wp1173.21

26. Learned senior counsel Mr. Dhorde, for the petitioner has

failed to explain as to how the observations in para 15, as quoted

above, are relevant for the present discussion.

27. It is informed by the counsel appearing for the parties that

college at Ambejogai is only unaided college and other colleges run

by the Trust are aided schools/colleges. In view of the same, the

previous arrangement about releasing of salary of the staff, lecturers

etc. would be continued including the direction given by the Division

Bench of this Court authorizing the Principal of the said unaided

college to make the payment of salary to staff members and the

faculties.

28. In view of above discussion, I am of the considered opinion

that now the change report inquiry No. 1420 of 2019 is to be

disposed of finally. The learned Deputy Charity Commissioner, Beed

has directed the parties to co-operate the authority to dispose of the

main proceeding within a stipulated period of 90 days as per the

mandate of amended provisions of Section 22 of the Trust Act.

However, out of the said period of 90 days, certain period is elapsed

in pursuing the present litigation. However, still remainder period of

45 days is available to the learned Deputy Charity Commissioner,

Beed to decide the said change report inquiry No. 1420 of 2019.

Hence, I proceed to pass the following order:-

wp1173.21

ORDER

I. Writ petition is hereby dismissed.

II. The impugned order dated 04.01.2021 passed by respondent No.1 Deputy Charity Commissioner, Beed below Exh.15 and 21 in change report Inquiry No. 1420 of 2019 stands confirmed with the following directions;-

a) The parties shall appear before the Deputy Charity Commissioner, Beed on 10.03.2021.

b) The learned Deputy Charity Commissioner, Beed shall decide the change report inquiry No. 1420 of 2019 during remainder period in terms of clauses Nos. 3 and 4 of its order dated 4.1.2021 below Exh.15 and 21 in change report inquiry No. 1420 of 2019 by day to day hearing, if possible.

c) The parties shall co-operate to the learned Deputy Charity Commissioner, Beed in disposing of the change report inquiry No. 1420 of 2019 within the time specified above.

III. Writ petition is accordingly disposed of.

( V. K. JADHAV, J.)

rlj/