Uttamrao S/O Baliramji Janolkar vs Mahadeo S/O Tulshiramji Mankar ...
2021 Latest Caselaw 874 Bom

Judgment                             1                            WP459.20.odt



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                       NAGPUR BENCH, NAGPUR.


                  WRIT PETITION NO. 459 OF 2020


PETITIONER       : Uttamrao S/o Baliramji Janolkar,
                   Aged about 85 years, Occu. Retired/pensioner,
                   R/o Vijay Colony, Gorakshan Road, Akola,
                   Tq. & Dist. Akola,
                   through Power of Attorney holder
                   Shri Prashant Uttamrao Janolkar,
                   Age 50 years, Occu. Service,
                   R/o At post Jyoti Shikshan Prasarak Mandal,
                   Gorakshan Road, Akola, Dist. Akola - 04.

                             // VERSUS //

RESPONDENTS      : 1] Mahadeo S/o Tulshiramji Mankar,
                      Aged about 73 years, Occu. Retired/pensioner,

                    2] Sau. Urmila W/o mahadeo Mankar,
                       Aged about 68 years, Occu. Housewife,
                       Both R/o Vijay Vidyut Colony, Near water
                       Reservoir, Opp. Keshav Nagar, Akola,
                       Tq. & Dist. Akola.

                    3] The Assistant Charity Commissioner, Akola.

                   4] The Joint Charity Commissioner,
                      Amravati Region, Amravati.
___________________________________________________________________

    Shri M. G. Bhangade, Senior Advocate with Shri C. A. Joshi, Advocate
      for the petitioner
    Shri Anoop J. Gilda, Advocate for respondent nos.1 and 2.
    Shri I. J. Damle, A. G. P. for respondent nos.3 and 4.
___________________________________________________________________


                   CORAM : V. M. DESHPANDE, J.

DATED : JANUARY 14, 2021 Judgment 2 WP459.20.odt

ORAL JUDGMENT

1. RULE. Rule is made returnable forthwith. Heard finally by

consent of the learned counsel for the parties.

2. The petitioner and the respondents are before this Court

on second occasion inasmuch as earlier the cause for approaching this

Court by present petitioner Uttamrao Janokar by filing Writ Petition

No. 6342 of 2019 was the judgment and order passed by the learned

District Judge-5, Akola in Misc. Civil Application No. 93/2012, on

23.08.2019, by which the appeal preferred by the petitioner under

Section 72(1) of the Maharashtra Public Trusts Act, 1950 was

dismissed.

3. The said writ petition was finally decided by this Court

(Coram : A.S. Chandurkar, J.) on 20.09.2019. In the light of various

observations made in the said judgment, this Court passed the order

that the judgment dated 20.03.2012 passed in Appeal No.56/2008 by

the learned Joint Charity Commissioner as well as judgment dated

23.08.2019 passed in Civil Miscellaneous Application No. 93/2012,

decided by the learned District Judge-5, Akola, were quashed and set Judgment 3 WP459.20.odt

aside. After setting aside these two judgments, the proceedings were

remitted back to the file of learned Joint Charity Commissioner to

decide the appeal afresh in the light of the observations made on the

applications at Exhibits 8 and 11 by keeping all the points open for due

consideration.

4. After the remand, the learned Joint Charity Commissioner,

Amravati decide Appeal No. 56/2008 afresh by delivering judgment

dated 06.01.2020, thereby dismissing the appeal as well as applications

Exhibits 8 and 11.

5. Felt aggrieved by the said, the petitioner is before this

Court in this writ petition.

6. It would be useful to record few facts that gave rise to the

present writ petition.

There is a Trust at Akola by name Jyoti Shikshan Prasarak

Mandal and it came into existence in the year 1983. There were seven

founder members and undisputedly, the petitioner is one of such

member. On 26.03.2000, 14 new persons were enrolled as the

members of the trust.

Judgment 4 WP459.20.odt

On 03.02.2002, General Body meeting of the Trust was

held and the agenda of the meeting was to elect the Executive

Committee. In the said meeting, Executive Committee was elected.

Thus, there occurred change in respect of the constitution of the

Executive Committee of the Trust. Therefore, as obligatory under

Section 22 of the Maharashtra Public Trusts Act, the petitioner reported

the said change to the office of the Trust Authority i.e. Assistant Charity

Commissioner, Akola. The said was registered as Enquiry No.

527/2002. After the change was submitted, an objection was raised to

the said Change Report by respondent nos.1 and 2 and objected for

acceptance of said change that occurred in the General Body meeting

dated 03.02.2002. From the submissions made at bar from both the

sides, it is clear that the objections were on two grounds - firstly, the

notice of General Body meeting was given by the President and not by

the Secretary and under the bye-laws, it is only the Secretary who is a

competent person to give notice. The another objection which is

germane to these proceedings before me is regarding induction of 14

persons as members of the Trust. Apart form this, one of the objections

is regarding service of notice of the meeting dated 03.02.2002 to the

objector.

Judgment 5 WP459.20.odt

7. Learned Assistant Charity Commissioner, Akola, after

recording the evidence, passed the judgment dated 23.10.2007. By the

said, the change report was rejected.

8. The reporting Trustee was aggrieved by the said judgment

and therefore, he approached to the learned Joint Charity

Commissioner by filing appeal under Section 70 of the Maharashtra

Public Trusts Act and set up a challenge on different grounds. The

appeal was registered as Appeal No. 56/2008. (wrongly typed as

Appeal No.56/2007 at page 65 of the compilation of this writ petition).

During pendency of said appeal, on 05.08.2009, an application was

moved seeking permission to file documents on record. Similarly, on

29.10.2009 the appellant filed another application for permission to

file documents on record. The application dated 05.8.2009 was at

Exh.8, whereas the application dated 29.10.2009 was at Exh.11.

9. The learned Joint Charity Commissioner, Amravati Region,

Amravati vide judgment dated 20.03.2012 dismissed the appeal.

10. As per the law prevailing at that time, the aggrieved

person, whose appeal under Section 70 of the MPT Act is dismissed or Judgment 6 WP459.20.odt

the person who is aggrieved by the fact that the appeal is allowed, was

required to approach before the District Court by filing further

proceeding under Section 72(1) of the Act and before the District

Court, said proceeding used to be registered as Misc. Civil Application.

Accordingly, the petitioner approached the learned District Judge and

his application challenging the order of Assistant Charity Commissioner

rejecting the change report and the order of Joint Charity

Commissioner dismissing appeal, was registered as Misc. Civil

Application No. 93/2012. The petitioner could not found favour even

from the learned District Judge, Akola since his those proceedings were

culminated into its dismissal vide order dated 23.08.2019. Therefore,

the petitioner approached this Court by filing Writ Petition

No.6342/2019. While deciding the writ petition, this Court (Coram :

A.S.Chandurkar, J.) was of the view that in view of the law laid down

by the Hon'ble Apex Court in K. Venkatramiah .vs. A. Seetharama

Reddy & others, reported in AIR 1963 SC 1526, in the interest of

justice, permission deserves to be granted to lead additional evidence

to enable it to pronounce its judgment in a more satisfactory manner

and such case would be covered by the expression "for any other

substantial cause" under Rule 27(1)(b) of the Code. This Court,

therefore, observed that even if the requirements of Order XLI Rule 27 Judgment 7 WP459.20.odt

(1)(aa) of the Code are not satisfied in exercise of the power conferred

by Rule 27(1)(b) of the Code, such permission to lead additional

evidence can be granted "for any other substantial cause." This was

required to be observed by this Court in its order because while

considering applications Exhs.8 and 11 moved by the petitioner before

the learned Joint Charity Commissioner and while rejecting the same,

he only considered "due diligence". This Court also observed while

deciding the earlier writ petition in paragraph 9 as under :

"9. As regards the correctness of the observations made with regard to induction of fourteen members in the Trust is concerned, it is not necessary at this stage to record any finding in that regard especially in view of the fact that those observations made by the learned Assistnat Charity Commissioner were subjected to challenge by filing an appeal before the Joint Charity Commissioner. Since it is proposed to direct re- consideration of the appeal filed by the petitioner by the learned Joint Charity Commissioner, the said aspect can be raised in that appeal. Hence, the points in that regard are kept open."

With the aforesaid observations, earlier writ petition filed by the

petitioner was disposed of on 20.09.2019 by remanding the matter and

after the remand, the impugned order is passed.

11. The said judgment of this Court was questioned before the

Hon'ble Apex Court by filing Special Leave to Appeal (C) No. 25246 of Judgment 8 WP459.20.odt

2019 and the said was dismissed by the Hon'ble Apex Court vide order

dated 04.11.2019. A photo copy of the said order is tendered by

learned senior counsel for the petitioner, which is taken on record and

marked as "Exhibit-X" for the purposes of identification.

12. I have heard Shri M.G. Bhangade, the learned senior

Advocate with Shri C.A. Joshi, learned counsel for the petitioner and

Shri Anoop Gilda, learned counsel for respondent nos.1 and 2.

Respondent nos.3 and 4 i.e. Assistant Charity Commissioner and Joint

Charity Commissioner, though they are formal parties, they are

represented by Shri I.J. Damle, learned Assistant Government Pleader.

13. Before taking this judgment further, I would like to record

at the out set that the Change Report was for the period from 2002 to

2007 and in this respect a specific statement was made before me by

the learned senior Advocate Shri Bhangade that since that period is

over, the said Change Report has rendered infructuous. Even the

learned Joint Charity Commissioner, on earlier occasion passed the

order dated 20.03.2012 that election be held as directed in the

impugned order dated 23.10.2007.

Judgment 9 WP459.20.odt

14. Therefore, in the light of above statement of the learned

senior Advocate, this Court is not giving any verdict as to whether the

change that occurred in General Body meeting on 03.02.2002 was

valid or not.

15. The learned senior Advocate Shri Bhangde strenuously

urged before me that the observations made by the learned Assistant

Charity Commissioner at first instance on 23.10.2007 in paragraph 10

will be a complete bar for all the time in future. He, therefore,

submitted that those observations which are confirmed by the learned

Joint Charity Commissioner after the remand, needs to be set aside.

16. The learned senior Advocate also invited my attention to

page no. 199, which is a change in respect of the property, which is

signed by Shri P. U. Janolkar as a Secretary of the Trust and he also

invited my attention to the judgment given by the learned Deputy

Charity Commissioner in Change Report Inquiry No. 441/2009 to show

that the present respondents have given no objection to the said

change report. He submitted that this P. U. Janolkar is one of the 14

members, who were inducted as members of the trust in the year 2000.

He submitted that the judgment by the Dy. Charity Commissioner is Judgment 10 WP459.20.odt

dated 30.12.2019 and the impugned judgment of the Joint Charity

Commissioner is dated 06.01.2020 and nobody pointed out the

decision of the Deputy Charity Commissioner to the learned Joint

Charity Commissioner. He submitted that had this judgment was there,

it would have its own impact on the decision given by the learned Joint

Charity Commissioner. The learned senior Advocate submitted that the

petitioner prays before this Court that the question of induction of 14

persons as members of the Trust should be kept open and if such

question is there in any proceeding, the observations made by the

learned Assistant Charity Commissioner in paragraph 10 of the order

dated 23.10.2007, which is confirmed by the learned Joint Charity

Commissioner, shall not weigh in the mind of any authority while

deciding the said issue.

17. Induction of 14 persons is the crux of the matter. They

were admitted to the Trust as Members in the year 2000, more

particularly on 26.03.2000, which is the point of dispute from the side

of the objectors/respondent nos.1 & 2.

18. Needless to mention, the rival change reports are pending

about subsequent change in Trust and in every change report or the Judgment 11 WP459.20.odt

rival change report, there will be the issue of these 14 persons whether

they are validly inducted or not.

19. Shri Gilda, learned counsel for respondent nos.1 and 2,

after submitting the case of respondent nos.1 and 2, on instructions

given to him, submitted before me that the respondent nos.1 and 2

have no objection for keeping the issue of membership of 14 persons

whether they are legally inducted or not or otherwise, open and that

can be agitated in the subsequent proceedings by the objectors.

20. In view of the submissions from the petitioner that the

change that took placed in the General Body meeting dated 03.02.2002

has rendered infructuous and since the petitioner does not wish to

have the findings and observations in respect of the correctness or

otherwise of the judgment of the learned Joint Charity Commissioner

and there is consensus amongst the learned counsel appearing for the

rival parties, this writ petition can be disposed of on following terms :

            i.    The writ petition is disposed of.

            ii.    The observations made in paragraph 10            in the

judgment dated 23.10.2007 passed by the learned

Assistant Charity Commissioner, Akola in Enquiry Nol.

Judgment 12 WP459.20.odt

527/2002, together with its confirmation by the learned

Joint Charity Commissioner, Amravati dated 06.01.2020 in

Appeal No. 56/2008, are hereby quashed and set aside.

iii. The issue of induction of 14 persons as members of

the Trust in the meeting dated 26.03.2000 of the Trust is

kept open and if such issue occur and if it is objected in any

subsequent proceeding, then the said issue will be decided

by the Authority before whom such issue crops up, in

accordance with law by giving opportunity of hearing to

the rival parties including the opportunity of filing various

documents and evidence in that behalf.

iv. Needless to mention, the issue in respect of the

membership as to whether they were validly inducted or

not, will be decided afresh in accordance with law.

v. The subsequent change reports which are pending

before the Authority and it is reported to this Court that

because of pendency of this writ petition those are not

decided, shall be decided by the Authority as expeditiously Judgment 13 WP459.20.odt

as possible and preferably within a period of one year from

today.

           vi.      Rule accordingly. No order as to costs.



                                            JUDGE
Diwale




                                                              Digitally
                                                              signed by
                                             Parag            Parag Diwale
                                                              Date:
                                             Diwale           2021.01.18
                                                              17:05:45
                                                              +0530