Bombay High Court
Babu Irappa Khadakbhavi And ... vs The State Of Maharashtra Through ... on 5 August, 2022
Bench: M. G. Sewlikar
(1) wp 7728.22
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7728 OF 2022
1. Dr. Babu s/o Irappa Khadakbhavi,
Age: 60 years, Occu: Service as 'Principal'
College of Engineering, Ambajogai,
Tq. Ambajogai, District Beed.
R/o Morewadi, Ambajogai,
Tq. Ambajogai, District Beed.
2. Mahavir s/o Bhopalappa Shetti,
Age: 59 years, Occu: Service as 'Principal'
T.B. Girwalkar Polytechnic, Ambajogai,
Tq. Ambajogai, District Beed.
R/o Morewadi, Ambajogai,
Tq. Ambajogai, District Beed.
3. Santosh s/o Satyanarayan Kosgi,
Age: 48 years, Occu: Service as 'Principal'
D. Pharmacy, Latur
Tq. & District Latur,.
R/o Barshi Road,
Tq. & District Latur.
4. Yogiraj s/o Dharmraj Swami,
Age: 41 years, Occu: Service as 'Head-Master'
Shri Shambuling Shivacharya Primary School,
Girwalkarnagar, Barshi Road, Latur,
Tq. & District Latur,.
R/o Syamnagar, Latur.
Tq. Purna, Dist. Parbhani. .. Petitioners
Versus
1. The State of Maharashtra,
Through Charity Commissioner,
Maharashtra State Pune.
::: Uploaded on - 05/08/2022 ::: Downloaded on - 07/08/2022 02:40:41 :::
(2) wp 7728.22
2. Deputy Charity Commissioner,
Latur Division, Latur.
3. Manmathappa s/o Pandbappa Lokhande,
Age: 87 years, Occ. Business,
R/o Subhash Chowk, Latur,
Tq. & District Latur. .. Respondents
.....
Advocate for Petitioners : Mr. N.P. Patil Jamalpurkar
APP for Respondent-State: Mr. S.N. Morampalle
Advocate for R/3 : Mr. V.D. Salunke
.....
CORAM : M.G. SEWLIKAR, J.
RESERVED ON : 29th July, 2022
PRONOUNCED ON : 5th August, 2022
JUDGMENT :-
Rule. Rule made returnable forthwith. With consent of the
parties taken up for final hearing at the admission stage.
2. Facts in brief are that Mahatma Basweshwar Education Society,
Latur is a public trust. The petitioners are the heads of the institutions i.e.
Principal and Head Master being run by the public trust. Respondent is the
member of the Mahatma Basweshwar Education Society, Latur (for short the
'said trust').
3. Respondent no.3 has filed change report concerning elections of
Governing Council of the said trust alleged to have been held on 5 th May, 2019
before respondent no.2 - Deputy Charity Commissioner (DCC). Said change
(3) wp 7728.22
report bears CR No. 1420/2019 and is pending before the DCC.
4. The petitioners are the Principals and Head Masters of the
different institutions being run by the said trust. The said trust is having its
constitution which contains rules relating to the eligibility and qualification of
the members and powers of the General Body and Governing Council and its
elections. As per the rules of the constitution of the said trust, the heads of
the institutions are the members of the General Body of the trust. Therefore,
they are the members of the General Body. It is also alleged that on plain
reading of the rules, it is clear that the heads of the institutions are not only
the members of the General Body but also they are ex-officio members of the
Governing Council.
5. It is alleged by the petitioners that they had filed an application
under Section 73(A) of the Maharashtra Public Trust Act (for short 'MPT Act')
for allowing them to participate in the inquiry of CR No.1420/2019 as they
are ex-officio members of the Governing Council and, therefore, they are
having interest in the administration of the trust and the institution. This
application was filed on 4th July, 2022. Respondent no.3 opposed the said
application.
6. The learned Dy. C.C., after hearing both the parties, rejected the
(4) wp 7728.22
said application. The learned Dy. C.C. held that the petitioners though they
are members of the General Body they do not become members of the society.
She further held that the petitioners have not explained as to how their
impleadment would assist the Charity Commissioner in coming to a just
conclusion. She placed reliance on the case of Satish Vasant Salpekar V/s.
Ashwin Ghatate and Anr. reported in 2018 (2) Mh L.J. 57. This order is
impugned in this petition.
7. The respondents filed affidavit in reply. It is contended in the
affidavit in reply that the petitioners are trying to protract the proceedings and
are not allowing the Dy. C.C. to decide the proceedings finally. The Hon'ble
Supreme Court has directed the learned Dy. C.C. to decide the change reports
finally preferably within three months and also directed that if any of the
parties try to delay the hearing of the matter it will be open to the Dy. C.C. to
proceed further with the hearing of all the change reports ex parte after
passing a reasoned order. Despite this the said Madhavrao Hanmantrao Patil
(Taklikar) filed application for transfer of proceedings from Dy. C.C. which
was rejected by this Court vide Writ Petition No.7138/2022. Just to protract
the litigation Madhavrao Hanmantrao Patil (Taklikar) filed the present
application for intervention. The petitioners are not the members of the trust
and they are not eligible and entitled to participate and vote in any election,
(5) wp 7728.22
particularly in the election of Governing Council. The employees such as head
of departments were not included in the voters list nor they participated in the
election nor voted in the election. Therefore, they cannot be added as party to
this trust. It is further alleged that the order is revisable under Section 70-A of
the Maharastra Public Trust Act and writ petition is not maintainable.
8. I have heard learned counsel Shri N.P. Patil Jamalpurkar for the
petitioners and Shri V.D. Salunke learned counsel for the respondent no.3.
9. Learned counsel Shri Jamalpurkar submitted that impugned order
is passed by the Deputy Charity Commissioner because of the bias she
entertained against the petitioners. He submitted that election of governing
council was held in May-2019 change report before Dy. C.C. in June-2019 vide
CR No.1420/2019 presented by respondent no.3. Provisional acceptance was
also rejected. This Court confirmed that order. The Dy. C.C. rejected the
change report filed by respondent no.3. He submitted that on 4 th July, 2021
fresh election of Governing Council were held. On 15 th July CR No. 596/2021
was filed by the newly elected secretary. Respondent no.3 preferred appeal
before the Joint Charity Commissioner, Mumbai against election dated 4 th July,
2021. During pendency of this appeal CR No. 596/21 was filed for accepting
change report provisionally. No order was passed by the Deputy Charity
Commissioner (DYCC). Therefore, writ petition was filed bearing
(6) wp 7728.22
no.1420/2021 to accept CR No. 596/21 provisionally. This Court directed Dy.
C.C. to accept CR 596/221 provisionally. The Dy. C.C. refused to accept CR
No.596/2021 provisionally, therefore, Contempt Petition was filed. The Dy.
C.C. had to tender unconditional apology in Court. He submitted that because
of this development the Deputy Charity Commissioner entertained grudge
against the petitioners.
10. He further submitted that present petitioners are the heads of the
institutions. They filed application under Section 73-A of the Maharashtra
Public Trust Act to allow them to participate in the inquiry. He submitted that
the petitioners being the head of the institutions are the members of the
General Body as per the amended constitution of the trust. He submitted that
constitution defines executive committee. Executive committee is defined as
the executive authorities of the society who will supervise welfare of the
society. General Body, Governing Council, Managing Committee for college,
School Committee will be the executive authorities. He submitted that
general body of the society shall consist of all the members except the
honorary members. Head of the institution of the society will be the members
of the General Body. He submitted that the functions of the general body are
to prepare educational plans to elect the members of the Governing Council of
the society. He further submitted that according to the amended constitution
(7) wp 7728.22
head of each of the institutions run by the society shall be ex officio members
of the Governing Council. He submitted that this clearly shows that the
petitioners are the members of the General Body and the Governing Council.
He submitted that respondent no.3 has tendered his evidence and in the cross-
examination he has admitted that heads of the institutions will the members
of the society. He further submitted that in the judgment of change report
no.1420/2019 the learned Dy. C.C. vide judgment and order dated 25 th June,
2021 has held that the meeting called by the elected President and Vice-
President dated 13th May, 2019 for nominating the office bearers / members
and four members of Governing Council, the heads of the institutions were
not called and they were not present and therefore the meeting was held to be
illegal. He submitted that the Joint Charity Commissioner also held that
heads of the institutions of the society will be members of the General Body.
He submitted that despite these provisions and despite the judgment of
Dy.C.C. and Joint Charity Commissioner the learned Dy. C.C. rejected the
application holding that the petitioners are not the persons interested in the
trust. He submitted that this order has been passed with a biased mind.
Therefore, it needs to be set aside. He placed reliance on the cases of Smt.
Sugrabi wd/o Abdul Habib Abdul Jabbar and Ors. V/s. Assistant Charity
Commissioner, Nagpur and Anr. (Writ Petition No.7286/2019), Suresh Hiralal
Shah V/s. Shree Mahavir Swami Digambar Jain reported in 2001 (3) Mh.LJ
(8) wp 7728.22
147, Madhavrao Hanmantrao Patil Taklikar V/s. Heera Hashinath Shelke and
Anr. (Contempt Petition No.203/2022 in Writ Petition 2421/22 ), to show that
Deputy Charity Commissioner had to tender unconditional apology. He also
placed reliance on the case of Harshal s/o Uddhav Aarvikar V/s. Jagjeet Singh
Gurusharan Singh and Anr. (Writ Petition No.1905/2017).
11. Learned counsel for the respondent no.3 submitted that the
Hon'ble Supreme Court has directed the learned Dy. C.C. to decide the change
report within a period of three months. The petitioners are creating obstacles
in the disposal of the change report. He submitted that the writ petition is not
maintainable. The petitioners have remedy under Section 70-A of the MPT
Act to prefer revision before the Charity Commissioner. He submitted that the
application for intervention was filed in the proceeding under Section 22 of
the MPT Act. Therefore, the decision is under Section 22 of the MPT Act.
He submitted that the decision on this application comes within the definition
of finding or order and therefore the writ petition is not maintainable. He
submitted that the petitioners are trying to protract the proceedings. They
had filed transfer application which was rejected. He submitted that the
petitioners are not the voters. The voters list shows that they are not the
voters. Just because they are members of the General Body does not mean
that they become members as per the constitution of the trust. In terms of
(9) wp 7728.22
definition of membership the requirements for becoming members are that a
person must have paid full subscription amount as per the categories
prescribed for membership and whose membership has been approved by the
Governing Council and whose name has been duly entered in the register kept
for enrollment of the membership. He submitted that there are various
categories of members and they do not fall in any of the categories of the
members. He submitted that members of General Body and ex officio
members have no power to vote. In terms of the rules members enrolled as
per the previous constitution will have no right to be a member unless he
fulfills the requirement as per the new constitution and those members who
have fulfilled the requirements as per the new constitution before December-
1970 would be the members of the society. Though heads of the institutions
shall be ex officio members of the Governing Council the rules do not say that
they have right of voting. In reply learned counsel for the petitioners
submitted that the order is under Section 73-A of the MPT Act. These are
separate proceedings. Therefore, these proceedings do not come within the
scope of Section 22 of the MPT Act. Therefore, writ petition is the only
remedy for the petitioners.
12. I have given thoughtful consideration to the submissions made by
both the counsels. So far as maintainability of the petition is concerned, the
( 10 ) wp 7728.22
petitioners have placed reliance on the case of Anand Sheshrao Bharose V/s.
Vedprakash Patil and others in Writ Petition No.3788/2021 of this Court. In
this petition application for setting aside or staying the provisional acceptance
of change report obtained by suppressing various materials facts and
circumstances was filed. Learned Assistant Charity Commissioner rejected
these applications. Both these orders, one granting provisional approval and
the other refusing to recall or stay the order, were challenged. This Court held
thus:
"6. On a query being put to the learned Senior Advocates regarding
availability of alternate and efficacious remedy, they would submit
that this Court has ample powers in exercise of writ jurisdiction to set
right any illegality, more so when the impugned order has been passed
in violation of the fundamental rights of the petitioners. So far as the
provisions of the Act are concerned, they would submit that the
impugned order is not a finding and no appeal under Section 70 of the
Act would lie. They would also refer to following couple of the
decisions of the coordinate benches of this Court:
(i) Mukesh Nashikrao Tirpude & Anr. Vs.
Wamanrao Tatobaji Kombade & Ors.;
2008(4) Mh. L.J. 562
(ii) Kashyap Odhavji Thakkar Vs.
Chandrakant R. Ganatra and Others;
2019(1) Mh.L.J.102
7. Per contra, the learned Advocates Mr. N.B. Khandare, Mr.
S.V.Adwant and Mr. D.J. Chaudhary, for the respective contesting
respondents, would refer to the decision of the Supreme Court in the
( 11 ) wp 7728.22
case of Assistant Commissioner (CT) LTU, Kakinada and Others Vs.
Glaxo Smith Kline Consumer Health Care Limited; 2020 SCC OnLine
SC 440 and submit that since the impugned order is an order passed in
a substantive proceeding under Section 22 of the Act in the form of a
Change Report enquiry, though it does not record a finding so that an
appeal under Section 70 would lie, a revision under Section 70A of the
Act would certainly be an efficacious remedy available to the
petitioners.
8. The arguments would be better appreciated by re-producing the
relevant provisions:
Sec. 22.
(1) Where any change occurs in any of the entries
recorded in the register kept under section 17, the trustee
shall, within 90 days from the date of the occurrence of
such change, or where any change is desired in such
entries in the interest of the administration of such public
trust, report such change or proposed change to the Deputy
or Assistant Charity Commissioner in charge of the Public
Trusts Registration Office where the register is kept. Such
report shall be made in the prescribed form. Provided that,
the Deputy or Assistant Charity Commissioner may extend
the period of ninety days for reporting the change on being
satisfied that there was a sufficient cause for not reporting
the change within the stipulated period subject to payment
of costs by the reporting trustee, which shall be credited to
the Public Trust Administration Fund.
(1A) .....
(2) For the purpose of verifying the correctness of the
entries in the register kept under section 17 or ascertaining
whether any change has occurred in any of the particulars
recorded in the register, the Deputy or Assistant Charity
Commissioner may hold an inquiry in the prescribed
manner.
Provided that, in the case of change in the names
and addresses of the trustees and the managers or the
mode of succession to the office of the trusteeship and
managership, the Deputy or Assistant Charity
( 12 ) wp 7728.22
Commissioner may pass order provisionally accepting the
change within period of fifteen working days and issue a
notice inviting objections to such change within thirty
days from the date of publication of such notice;
Provided further that, if no objections are received
within the said period of thirty days, the order accepting
the change provisionally under the first proviso shall
become final and entry thereof shall be taken in the
register kept under section 17 in the prescribed manner;
Provided also that, if objections are received within
the said period of thirty days, the Deputy or Assistant
Charity Commissioner may hold an enquiry in the
prescribed manner and record a finding, as provided by
sub-section (3) of this section, within three months from
the date of filing objections.
(3) If the Deputy or Assistant Charity Commissioner,
as the case may be, after receiving a report under sub-
section (1) and holding an inquiry, if necessary, under sub-
section (2), or merely after holding an inquiry under the
said sub-section (2), is satisfied that a change has occurred
in any of the entries recorded in the register kept under
section 17 in regard to a particular public trust, or that the
trust should be removed from the register by reason of the
change, resulting in both the office of the administration of
the trust and the whole of the trust property ceasing to be
situated in the State, he shall record a finding with the
reasons therefor to that effect and if he is not so satisfied
he shall record a finding with reasons therefor accordingly.
Any such finding shall be appealable to the Charity
Commissioner. The Deputy or Assistant Charity
Commissioner shall amend or delete the entries in the said
register in accordance with the finding which requires an
amendment or deletion of entries and if appeals or
applications were made against such finding, in
accordance with the final decision of the competent
authority provided by this Act. The amendments in the
entries so made subject to any further amendment on
occurrence of a change or any cancellation of entries, shall
be final and conclusive.
(3A) .....
(3B) .....
( 13 ) wp 7728.22
(4) .....
Sec. 70.
(1) An appeal against the finding or order of the
Deputy or Assistant Charity Commissioner may be filed to
the Charity Commissioner in the following cases:--
(a) the finding and order, if any, under section 20;
b) the finding under section 22;
(b-1) the finding under section 22A;
(c) the finding under section 28;
(c-1) the order under section 41C;
(c-2) the order under section 50A;
(d) the order under sub-section (3) of section 54;
(d-1) an order under sub-section (1) of section 79;
(e) an order confirming or amending the record under
section 79AA;
(2) .....
(3) .....
70A.
(1) The Charity Commissioner may in any of the cases
mentioned in section 70, either suo motu or on application
call for and examine the record and proceedings of such
case before any Deputy or Assistant Charity
Commissioner for the purpose of satisfying himself as to
the correctness of any finding or order recorded or passed
by the Deputy or Assistant Charity Commissioner and may
either annul, reverse, modify or confirm the said finding or
order or may direct the Deputy or Assistant Charity
Commissioner to make further inquiry or take such
additional evidence as he may think necessary or he may
himself take such additional evidence:
Provided that the Charity Commissioner shall notre
cord or pass any orders without giving the party affected
thereby an opportunity of being heard.
( 14 ) wp 7728.22
(2) Nothing in sub-section (1) shall entitle the Charity
Commissioner to call for and examine the record of any
case--
(a) during the period in which an appeal under section
70 can lie against any finding recorded by the Assistant or
Deputy Charity Commissioner in such case, or
(b) in which an order has been passed either in an
appeal made under section 70.
9. As can be appreciated from the scheme of Sections 70 and 70A
of the Act, an appeal would lie to the Charity Commissioner against a
finding and/or an order of the Deputy Charity Commissioner or
Assistant Charity Commissioner passed under Sections 20, 22, etc. of
the Act. Since to the extent of an enquiry under Section 22, clause (b)
of sub-section (1) of Section 70 requires that there has to be a finding
under that provision against which an appeal would lie, certainly no
appeal would lie against an interlocutory order as has been observed
by this Court in the case of Mukesh Nashikrao Tirpude & Anr. (supra).
10. However, as the wording of Section 70A is explicit and
empowers a Charity Commissioner either suo motu or on an
application to call for and examine the record and proceedings of any
of the cases mentioned in Section 70, which covers even case or
enquiry pending under Section 22, the impugned order having been
passed in the nature of an interlocutory order, granting provisional
approval under first proviso to sub-section (2) of Section 22, it would
be a case squarely covered by Section 70A.
11. As can be appreciated from the wordings of Section 70, the
Legislature has consciously used the words `finding' and `order',
wherever it intended that an appeal would lie. Any such distinction in
the finding and order is conspicuously absent in Section 70A.
( 15 ) wp 7728.22
Meaning thereby that irrespective of the nature of the order, whether it
is merely an order or a finding, in a substantive proceeding mentioned
in Section 70, the Charity Commissioner has the powers to call for and
examine the record and proceedings for the purpose of satisfying
himself as to the correctness of any finding or order recorded and/or
passed by the Deputy Charity Commissioner or Assistant Charity
Commissioner. It is, therefore, abundantly clear that the impugned
order having been passed in a case of a Change Report enquiry under
Section 22, remedy of revision under Section 70A is indeed an equally
efficacious remedy available to the petitioners. Consequently the writ
petitions would not be maintainable."
13. Thus in the case of Anand Sheshrao Bharose cited (supra), this
Court held that in terms of scheme of Section 70 and 70-A of the MPT Act an
appeal would lie to Charity Commissioner against a finding and or an order of
Dy. C.C. or A.C.C. passed under Section 20, 22 etc. of the Act. It has further
been held that no appeal would lie against the interlocutory order. It is
further held that Section 70-A empowers a Charity Commissioner either suo
moto or on an application to call for and examine the record and proceedings
of any of the cases mentioned in Section 7-D which covers even case or
inquiry pending under Section 22 and therefore it would be a case squarely
covered by Section 70-A. It has, therefore, held that the impugned order
having been passed in the case of change report inquiry under Section 22,
remedy of revision under Section 70-A is indeed an equally efficacious
alternate remedy available to the petitioners.
( 16 ) wp 7728.22
14. The question is whether application under Section 73-A would be
a finding or order under Section 22 of the MPT Act. It is pertinent to note
that application under Section 73-A is filed in change report no.1420/2019.
The order under Section 73-A is passed in pending proceedings of change
report. Therefore, they cannot be said to be an independent proceedings.
They become an integral part of the proceeding under Section 22 of the MPT
Act. Therefore, revision under Section 70-A would lie against the said order
before the Charity Commissioner. Therefore, there being equally efficacious
alternate remedy, the writ petition cannot be entertained. No extra ordinary
circumstances are brought on record to show that this Court can exercise its
jurisdiction under Article 226 of the Constitution of India.
15. Hence, the Writ Petition is dismissed, keeping open the remedy to
the petitioners to prefer revision under Section 70-A of the Maharashtra Public
Trust Act. The time spent in prosecuting the writ petition may be duly
considered by the learned Charity Commissioner under Section 14 of the
Limitation Act, 1963 if revision is filed. It is made clear that no opinion is
expressed on the merits of the matter and if the revision is preferred the
learned Charity Commissioner shall decide the revision on its own merits.
Rule is discharged.
mub [M.G. SEWLIKAR, J.]
