Bombay High Court
Bhagwan Pandurang Khedekar And ... vs State Of Maharashtra And Ors on 5 April, 2023
Bench: N. J. Jamadar
2023:BHC-AS:10281
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6212 OF 2022
1. Shri Bhagwan Pandurang Khedekar
Age 60 years, Occu : Business,
Matoshri Bungalow, Dhankawadi Gaon,
Pune - 411 043
2. Shri Purshotam Balkrushna Kondhare
Age 48 years, Occu : Business,
S.No.33/13, Behind Bharti Vidyapeeth,
Ambegaon, Pune 411 046. ... Petitioners
versus
1. State of Maharashtra
(Summons to be served on the Ld.
Govt. Pleader appearing for State of
Maharashtra under Order XXVII,
Rule 4 of the Code of Civil Procedure,
1908).
2. The Assistant Charity Commissioner - 2,
Pune Region, Pune
(Summons to be served on the learned Govt.
Pleader appearing for State of Maharashtra
under Order XXVII, Rule 4 of the Code of
Civil Procedure, 1908).
3. Shree Sadguru Santvarya Yogiraj Shankar
Maharaj Samathi Trust,
Dhankawadi, Pune
PTR No.A-793 (Pune)
Through its trustees
4. Shri Surendra Vasant Waikar
Age 60 years, Occu - Business,
1294/Vasant Tara, Sadashiv Pune - 411030.
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5. Shri Pratap Yashwant Bhosale,
Age 52 Years, Occu Service,
R/at S.No.31, Near Durvankar Karyalaya,
Dhankawadi, Pune - 04.
6. Satish Shivlal Kokate,
Age 51 years, Occu - Business,
R/at, Sankhya Darshan Apartment,
502, AB Road, Prabhat Road,
Pune 411 004.
7. Raja Krishna Suryawanshi,
Age 70 years, Occu - Advocate,
R/at PWD 13/4, Pimpri Camp,
Pune 411 017.
8. Nilesh Ashok Malpani,
Age 45 years, Occu - Business,
504B, Jay Chamber, Ghorpade Peth,
Pune - 400 042.
WITH
INTERIM APPLICATION NO.30251 OF 2022
IN
WRIT PETITION NO.6212 OF 2022
1. Shri Mihir Sudhir Kulkarni,
Age 35 years, Occu - Business,
Residing at Flat No.B-18,
Icchamani Society, Mayur Colony,
Kothrud, Pune City - 411 038. ... Applicant
and
1. Shri Bhagwan Pandurang Khedekar
Age 60 years, Occu : Business,
Matoshri Bungalow, Dhankawadi Gaon,
Pune - 411 043
2. Shri Purshotam Balkrushna Kondhare
Age 48 years, Occu : Business,
S.No.33/13, Behind Bharti Vidyapeeth,
Ambegaon, Pune 411 046. ... Petitioners
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versus
1. State of Maharashtra
(Summons to be served on the Ld.
Govt. Pleader appearing for State of
Maharashtra under Order XXVII,
Rule 4 of the Code of Civil Procedure,
1908).
2. The Assistant Charity Commissioner - 2,
Pune Region, Pune
(Summons to be served on the learned Govt.
Pleader appearing for State of Maharashtra
under Order XXVII, Rule 4 of the Code of
Civil Procedure, 1908).
3. Shree Sadguru Santvarya Yogiraj Shankar
Maharaj Samathi Trust,
Dhankawadi, Pune
PTR No.A-793 (Pune)
Through its trustees
4. Shri Surendra Vasant Waikar
Age 60 years, Occu - Business,
1294/Vasant Tara, Sadashiv Pune - 411030.
5. Shri Pratap Yashwant Bhosale,
Age 52 Years, Occu Service,
R/at S.No.31, Near Durvankar Karyalaya,
Dhankawadi, Pune - 04.
6. Satish Shivlal Kokate,
Age 51 years, Occu - Business,
R/at, Sankhya Darshan Apartment,
502, AB Road, Prabhat Road,
Pune 411 004.
7. Raja Krishna Suryawanshi,
Age 70 years, Occu - Advocate,
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R/at PWD 13/4, Pimpri Camp,
Pune 411 017.
8. Nilesh Ashok Malpani,
Age 45 years, Occu - Business,
504B, Jay Chamber, Ghorpade Peth,
Pune - 400 042.
WITH
WRIT PETITION NO.6625 OF 2022
Dnyaneshwar Bajirao Darwatkar
Age 47 years, Occu - Business,
R/at 3, A1 Nirmal park, Flat No.62,
Chavan Nagar, Dhanakwadi,
Pune - 411 043 ... Petitioner
versus
1. Shri Sadguru Santvarya YogiRaj Shankar
Maharaj Samadhi Trust
through
Shri Bhagwan Pandurang Khedekar
Age __, Occu - Business,
R/at Matoshri Bungalow,
Dhanakwadi, Pune - 43.
2. Mr Sadanand Shivajirao Khamkar,
Age 53 years, Occu - Business,
R/at 241/42/7 PMC Colony,
Rajendra Nagar, Navi Peth,
Pune - 30.
3. Mr. Unmesh Vilas Kulkarni,
Age 37 years, Occu - Business,
R/at 244, Ground Floor, Madhugan Apt.,
Akara Maruti Mandir Sqr. Shukrawar Peth,
Pune.
4. Mr. Sujit Ramakant Kale,
Age 45, Occu - Business,
R/at Flat No.16, Indraprasth Society,
Nr. Basuri Hotel, Pune Satara Road, Pune.
5. Mr. Tushar Satish Gadale,
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Age 47 years, Occu - Business,
R/at Ravivar Peth, Pune.
6. Mrs. Nupur Shrikant Joshi (Mule),
Age 27 years, Occu - Housewife,
R/at 109, Gurudatta Apartment,
Opp. Pawar Hospital, Balajinagar
Dhankawadi, Pune.
7. Mr. Raju Ramchandra Revde,
Age __ years, Occu - Nil,
R/at 18/2, Dattakrupa Niwas,
Katraj, Pune.
8. Prashant Vasant Suryavanshi,
Age, Adult Occu - Nil,
R/at Ranjeet Complex, Flat No.6,
428, Mangalwar Peth, Pune.
9. Mr. Pravin Parshram Pasalkar,
Age Adult, Occu - Nil.
R/at S.No.13 C/18/1, Sambhaji Nagar,
Pune
10. Mr. Nikhil Hanumant Waghmare,
Age Adult, Occu - Nil,
R/at 14, Shankar Maharaj Vasahat,
Dhankawadi, Pune.
11. Shri Surendra Vasant Waikar,
Age 60 years, Occu - Business,
R/at 1294, Vasant Tara, Sadashiv Peth,
Pune 411 030.
12. Shri Suresh Ganpatrao Yenpure
Age 72 years, Occu - Business,
R/at Ganesh Datta Society,
Mahakal Nagar, Pune.
13. Shri Pratap Yashwant Bhosale,
Age 52 years, Occu - Service,
R/at S.No.31, Near Durvankar Karyalaya,
Dhankawadi, Pune - 411 004.
14. Shri Nagraj Adinarayan Naidu,
Age 62 years, Occu - Business,
R/at 353, Somwar Peth, Pune.
15. Shri Nilesh Ashok Malpani
Age 45 years, Occu - Business,
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R/at 504B, Jay Chamber, Ghorpadepath,
Pune - 411 042.
16. Shri Anil Nivrutti Kaware,
Age 54 years, Occu - Business,
R/at Survey No.47/30A, Plot No.8,
Shree Chintamani Yashtara Housing Society,
Aranyeshwar Parvati, Pune - 411 009.
17. Shri Purshottam Balkrishna Kondhre,
Age 48 years, Occu - Business,
R/at 33/3, Baban Smruti Building,
plot No.1, Datta nagar, Near Chandra
Bahaga Hotel, Ambe Gaon, Pune 411 046.
18. Shri Satish Shivlal Kokate,
Age 51 years, Occu - Business,
R/at Sankhya Darshan Apartment,
502, AB Road, Prabhat Road,
Pune - 411 017.
19. Shri Raja Krishna Suryavanshi,
Age 70 years, Occu - Advocate,
R/at PWD 13/4, Pimpri Camp.
Mr. G.S.Godbole, Senior Advocate i/by Mr. Rahul S. Kadam, for Petitioners in WP
6212 of 2022.
Mr.Yuvraj Narvankar, for Petitioner in WP 6625 of 2022.
Mr. P.P.Kakade, Govt. Pleader with Mr. Yogesh D. Patil AGP for State
Mr. Vaibhav Sugdare i/by Ms. Deepali Kedar for Respondent No.3 in WP 6212 of
2022 and for Respondent No.1 in WP 6625 of 2022.
Dr. Uday Warunjikar i/by Mr. Pankaj Purway for Applicant in IA 30251 of 2022.
Mr. Ashutosh M. Kulkarni i/by Mr. Manoj Badgujar for Respondent Nos.4 and 5 in
WP 6212 of 2022 and for added Respondent Nos.11 and 13 in WP 6625 of 2022.
CORAM: N.J.JAMADAR, J.
RESERVED ON : 30 MARCH 2023
PRONOUNCED ON : 5 APRIL 2023
JUDGMENT :
1. Though these Petitions assail distinct orders passed by the Assistant
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Charity Commissioner, Pune, yet the genesis of the impugned orders being common,
both these Petitions are proposed to be decided by this common judgment.
2. Rule. Rule made returnable forthwith. With the consent of the learned
Counsel for the parties, heard finally.
3. The background facts necessary for determination of these Petitions can
be summarized as under :
3.1 Shri Sadguru Santvarya YogiRaj Shankar Maharaj Samadhi Trust, Pune
- Respondent No.3, in Writ Petition No.6212 of 2022, is a Public trust registered
under the Maharashtra Public Trusts Act, 1950 (the Act of 1950). A scheme came to
be settled by the Assistant Charity Commissioner, Pune in suo motu Scheme
proceeding No.30 of 1968 along with Scheme Application No.5 of 1969 for the
administration and management of the said trust. Under the Scheme, the number of
trustees was to be not less than 5 and more than 7. One of whom was to be always
from the family of late Pannalal Balkishan Malpani. Under the said Scheme, the first
board of trustees was appointed. The Scheme, inter alia, provided for the mode of
succession to the office of the trustees under clause 10A to the effect that the trustees
would be appointed for every three years by the Assistant Charity Commissioner,
Pune, out of the panel of at least 10 suitable names to be submitted to him by the
existing trustees three months before the expiry of their term along with the consent of
the persons proposed in the panel.
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3.2 An Application being Application No.491 of 2014 was filed seeking
appointment of the trustees, pursuant to a resolution passed by the then Board of
trustees on 24 September 2014 to nominate 10 persons for appointment to the post of
trustees for the period 1 January 2015 to 31 December 2017.
3.3 By an order dated 8 August 2017, the learned Assistant Charity
Commissioner, Pune, was persuaded to hold that the panel of 10 names was not validly
nominated by the then Board of trustees. The learned Assistant Charity
Commissioner in exercise of the power conferred under clause 10A of the Scheme,
appointed 7 trustees to administer the affairs of the trust.
3.4 Writ Petition being No.9443 of 2017 came to be filed before this Court
assailing the order dated 8 August 2017, under which Mr. Bhagwan Pandurang
Khedekar - Petitioner No.1 in WP No.6212 of 2021 and others were appointed as
trustees. By an order dated 31 August 2017, this Court stayed the effect and operation
of the order dated 8 August 2017 passed by the Assistant Charity Commissioner.
Eventually, by an order dated 18 June 2019, the said Writ Petition and the Applications
therein were dismissed.
3.5 The Petitioner preferred an Application being IA No.1 of 2020 in the
said Writ Petition seeking clarification that the period for which the stay to the order
of the Assistant Charity Commissioner dated 8 August 2017 was in operation be
excluded while computing the term of three years.
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3.6 By an order dated 5 August 2020 this Court declined to entertain the
application for clarification. However, liberty was given to the Applicant to prosecute
the application filed before the Assistant Charity Commissioner seeking directions
regarding the tenure of the trustee.
3.7 In Misc. Application No.131 of 2020 preferred before the Assistant
Charity Commissioner, the Petitioners prayed for a direction that the tenure of the
trustees appointed pursuant to the order dated 8 August 2017 passed in Misc.
Application No.491 of 2017 be calculated from the date they took charge of the office
i.e. 13 December 2019. It was, inter alia, averred that though the Writ Petition
No.9443 of 2017 was decided on 18 June, 2019, copy of the said order was not made
available till 17 October 2019.
3.8 The learned Assistant Charity Commissioner was, however, not
persuaded to accede to he aforesaid prayer of the Petitioners and the Misc.
Application No.137 of 2020 came to be rejected by an order dated 11 March 2022.
While rejecting the application, the Assistant Charity Commissioner directed all the
trustees to take requisite steps in accordance with the Scheme and submit a panel of 10
suitable persons for appointment as trustees of the trust within a period of 15 days
thereof. The learned Assistant Charity Commissioner noted that since the tenure of
then incumbent trustees had already expired, three months time in accordance with
clause 10A of the Scheme can not be granted for nomination.
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3.9 The Petitioners and Mr. Surendra Vasant Waikar - Respondent No.4 in
Writ Petition No.6212 of 2022 filed an Application being Misc. Application No.126 of
2022 seeking appointment of trustees from and out of the panel of 10 names
mentioned therein on the strength of the resolution passed by the board of trustees in
its meeting held on 20 March 2022.
3.10 Mr. Dnyaneshwar Bajirao Darwatkar - Petitioner in Writ Petition
No.6625 of 2022, preferred Writ Petition assailing the aforesaid order passed by the
Assistant Charity Commissioner on the ground that in accordance with clause 10A of
the Scheme, the board of trustees can nominate 10 persons for appointment as the
succeeding trustees within three months of the expiry of the term of the office. In the
order dated 11 March 2022, the Assistant Charity Commissioner having noted that the
term of office of then board of trustees was already over, could not have granted
permission to the board of trustees to nominate the persons for appointment as
trustees. In substance, de jure board of trustees had not nominated the panel and,
resultantly, the appointment of persons from such panel was invalid.
3.12 In Inquiry Application No.126 of 2022, the learned Assistant Charity
Commissioner perused the record and interviewed the persons who had submitted
applications in the prescribed format to assess their suitability for appointment as the
trustees of the trust. By an order dated 5 May 2022, impugned in Writ Petition
No.6212 of 2022, the learned Assistant Charity Commissioner appointed Respondent
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Nos.4 to 8 as the trustees of the trust for a term of three years. Petitioner Nos.1 and 2
whose names were at Sr. Nos.1 and 8 of the panel nominated by the board of trustees
have preferred Writ Petition No.6212 of 2022 assailing the legality, propriety and
correctness of the impugned order.
WRIT PETITION NO.6625 OF 2022
4. Mr. Narvankar, learned Counsel for the Petitioner would urge that the
nomination of a panel of 10 names by the incumbent trustees was legally infirm.
Amplifying the submission, Mr. Narvankar would urge that the authority to nominate
panel of 10 names can only be drawn from the provisions contained in clause 10A of
the Scheme. Authority vests in a board of trustees which is lawfully in office. Such
authority is required to be exercised before three months of the expiry of the term of
the incumbent board of trustees. In the circumstances, the learned Assistant Charity
Commissioner by an order dated 11 March 2022 could not have granted liberty to the
board of trustees which was non-est in the eye of law to nominate persons. Resultantly,
the entire exercise is tainted with incurable illegality.
5. Clause 10A of the Scheme, which bears upon the determination of both the
Petitions, reads as under :
"10A Future trustees will be appointed for every three years by the
Assistant Charity Commissioner, Poona, out of a panel of at least suitable
names to be submitted to him by the existing trustees 3 months before the
expiry of their term along with the consent and particulars of the persons
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proposed in the panel. Such persons should file a declaration on solemn
affirmation that he is a devotee of Late Shankar Maharaj. The existing or
5continuing trustees shall be eligible for their re-appointment. In case no
such panel is submitted by the existing trustees or if the names given in the
panel are not found suitable, the Assistant Charity Commissioner, Poona,
shall appoint new trustees as he may deem fit and proper. The term of the
new trustees will be for 3 years, i.e. from 1st January to 31st December."
6. A plain reading of the aforesaid clause incorporating the mode of succession
to the office of the trustees indicates that the power to appoint the trustees vests in
Assistant Charity Commissioner. The Assistant Charity Commissioner may appoint
the trustees from out of a panel of at least 10 suitable names to be submitted by the
existing trustees three months before the expiry of their term. The aforesaid provision
of clause 10A cannot be so rigidly construed as to limit the power of the Charity
Commissioner to appoint the trustees only from the panel suggested by the existing
trustees. He is not bound to appoint any of the persons nominated by the board of
trustees. The Charity Commissioner is vested with further discretion to appoint the
trustees as he may deem fit and proper.
7. The Assistant Charity Commissioner is expected to exercise a judicious
discretion to appoint trustees who appear to be fit and proper to administer the affairs
of the trust. Once no limitation is to be found in the maters of choice of persons to be
appointed as trustees in the provisions contained in clause 10A of the Scheme, the
submission sought to be canvassed on behalf of the Petitioner crumbles traceless.
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Nomination by the existing trustees within three months of the expiry of their term
cannot be considered as a peremptory requirement. The existing board of trustees is
given an authority to suggest the names of the persons who it considers fit and
suitable. It is an enabling provision and nothing more. Ultimately, it is for the
Assistant Charity Commissioner to appoint fit and suitable persons in exercise of a
judicious discretion.
8. In the peculiar facts of the case, grant of liberty by the Assistant Charity
Commissioner to the trustees to nominate suitable persons when an application was
made for extending the tenure of the existing trustees on the premise that a major part
of the three year term was covered by the stay order granted by this Court, cannot be
faulted at. The object of clause 10A of he Scheme seems to be to render assistance to
the Charity Commissioner in the appointment of the trustees by placing before him a
panel of persons whom the existing trustees consider fit and suitable for appointment.
If this object is kept in view, the grievance of the Petitioner does not merit acceptance.
9. The Petition, therefore, fails.
WRIT PETITION NO.6212 OF 2022
10. Mr. Godbole, learned Senior Advocate appearing for the Petitioners assailed
the impugned order of appointing Respondent Nos.4 to 8 as the trustees of the
Respondent No.2 Trust for being most arbitrary. Taking the Court through the
observations in the impugned order, especially the consideration on the relative
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suitability of the 10 persons nominated by the existing trustees in paragraphs 17 to 19,
Mr. Godbole strenuously submitted that the learned Charity Commissioner resorted
to selective questionnaire to judge the suitability of the candidates. The Petitioners
were declared as not suitable for appointment for being unaware of the important
provisions of the Act, 1950. Conversely, Respondent Nos.4 to 8 were not confronted
with the questions relating to the provisions of the Act, 1950 and, yet, they were
declared fit and suitable. Such an exercise is in complete derogation of the judicious
discretion. Had the Assistant Charity Commissioner assessed the suitability of the
candidates on uniform standard, the Petitioners would not have a cause to agitate, but
the Assistant Charity Commissioner has adopted completely different yardsticks and,
therefore, the impugned order deserves to be quashed and set aside, urged Mr.
Godbole.
11. Mr. Sugdare, learned Counsel for Respondent No.3 and Mr. Kulkarni,
learned Counsel for Respondent Nos.4 and 5 supported the impugned order. It was
urged that the Assistant Charity Commissioner in exercise of the power vested in him
under clause 10A of the Act, has appointed the persons whom he found more suitable.
The process adopted by the learned Assistant Charity Commissioner cannot be said to
be arbitrary. Nor the exercise of discretion can be termed as non-judicious.
12. I have given anxious consideration to the rival submissions. Indisputably, 10
persons were nominated by the then board of trustees comprising Petitioner No.1 also.
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The essential suitability of those 10 names cannot be, thus, questioned by the
Petitioners. Consequently, the challenge revolves around the relative suitability of the
persons who came to be appointed as trustees (Respondent Nos.4 to 8) qua the
Petitioners.
13. In the light of the controversy which essentially revolves around the
non-selection of the Petitioners and the selection of Respondent Nos.4 to 8 as the
persons fit and suitable to administer the affairs of the trust, the pivotal question is the
scope of interference by this Court in exercise of the writ jurisdiction. The aforesaid
controversy, it must be noted, arose out of an exercise of the power by the Assistant
Charity Commissioner conferred under the Scheme. The appointment of the
trustees is not in pursuance of the exercise of a statutory power. This essential
distinction further influences the exercise of writ jurisdiction.
14. At this juncture, it would be apposite to note the nature of the writ
jurisdiction exercised by this Court. It is well settled the High Court in exercise of
certiorari or supervisory jurisdiction will not convert itself into a court of appeal and
indulge in re-appreciation and evaluation of evidence or correct errors in drawing
inferences or correct errors of mere formal or technical character. The certiorari
jurisdiction is exercised for correcting gross error of jurisdiction, like when a
subordinate court/tribunal has acted without jurisdiction or in excess of jurisdiction or
while exercising the jurisdiction, acts in violation of the provisions of law or rules of
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procedure or fundamental principles of judicial process entailing failure of justice.
15. A useful reference in this context can be made to a Constitution Bench
judgment of the Supreme Court in the case of Syed Yakoob V/s.
K.S.Radhakrishnan and Ors.1 wherein the nature of the writ jurisdiction was
expounded. The enunciation of law in paragraph No.7 is instructive and, hence,
extracted below :
"7. The question about the limits of the jurisdiction of High Courts in
issuing a writ of certiorari under Article 226 has been frequently considered
by this Court and the true legal position in that behalf is no longer in doubt.
A writ of certiorari can be issued for correcting errors of jurisdiction
committed by inferior courts or tribunals : these are cases were orders are
passed by inferior courts or tribunals without jurisdiction, or is in excess of it,
or as a result of failure to exercise jurisdiction. A writ can similarly be issued
where in exercise of jurisdiction conferred on it, the Court or Tribunal acts
illegally or improperly, as for instance, it decides a question without giving an
opportunity to be heard to the party affected by the order, or where the
procedure adopted in dealing with the dispute is opposed to principles of
natural justice. There is, however, no doubt that the jurisdiction to issue a
writ of certiorari is a supervisory jurisdiction and the Court exercising it is
not entitled to act as an appellate Court. This limitation necessarily means
that findings of fact reached by the inferior Court or Tribunal as a result of
the appreciation of evidence cannot be reopened or questioned in writ
proceedings. An error of law which is apparent on the face of the record can
be corrected by a writ, but not an error of fact, however, grave it may appear
to be. In regard to a finding of fact recorded by the Tribunal, a writ of
certiorari can be issued if it is shown that in recording the said finding, the
Tribunal had erroneously refused to admit admissible and material evidence,
1 AIR 1964 SC 477
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or had erroneously admitted in admissible evidence which has influenced the
impugned finding. Similarly, if a finding of fact is based on no evidence, that
would be regarded as an error of law which can be corrected by a writ of
certiorari. In dealing with this category of cases, however, we must always
bear in mind that a finding of fact recorded by the Tribunal cannot be
challenged in proceedings for a writ of certiorari on the ground that the
relevant and material evidence adduced before the tribunal was insufficient
or inadequate to sustain the impugned finding. The adequacy or sufficiency
of evidence led on a point and the same inference of fact to be drawn from
the said finding are within the exclusive jurisdiction of the tribunal, and the
said points cannot be agitated before a writ Court. It is within these limits
that the jurisdiction conferred on the High Courts under Article 226 to issue
a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath
V/s. Ahmad Ishaque2: Nagendra Nath V/s. Commissioner of Hills
Division3 and Kaushalya Devi V/s. Bachittar Singh4
(emphasis supplied)
16. In the case of Surya Dev Rai V/s. Ram Chander Rai and Ors. 5 the
Supreme Court expounded the inter-play between the provisions contained in Articles
226 and 227 of the Constitution of India, as under :
"21. Certiorari jurisdiction though available is not be exercised as a matter of
course. The High Court would be justified in refusing the writ of certiorari if
no failure of justice has been occasioned. In exercising the certiorari
jurisdiction the procedure ordinarily followed by the High Court is to
command the inferior Court or Tribunal to certify its record or proceedings to
the High Court for its inspection so as to enable the High Court to determine
2 AIR 1955 SC 233
3 AIR 1958 SC 398
4 AIR 1960 SC 1168.
5 AIR 2003 SC 3044
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whether on the face of the record the inferior Court has committed any of the
preceding errors occasioning failure of justice.
22. Article 227 of the Constitution confers on every High Court the power of
superintendence over all courts and tribunals throughout the territories in
relation to which it exercises jurisdiction excepting any court or tribunal
constituted by or under any law relating to the armed forces. Without
prejudice to the generality of such power the High Court has been conferred
with certain specific powers by sub-articles (2) and (3) of Article 227 with
which we are not concerned hereat. It is well settled that the power of
superintendence so conferred on the High Court is administrative as well as
judicial, and is capable of being invoked at the instance of any person
aggrieved or may even be exercised suo motu. The paramount consideration
behind vesting such wide power of superintendence in the High Court is
paving the path of justice and removing any obstacles therein. The power
under Article 227 is wider then the one conferred on the High Court by
Article 226 in the sense that the power of superintendence is not subject to
those technicalities of procedure or traditional fetters which are to be found in
certiorari jurisdiction. Else the parameters invoking the exercise of power are
almost similar.
23.....
24. The difference between Articles 226 and 227 of the Constitution was well
brought out in Umaji Keshao Meshram and Ors V/s. Smt. Radhikabai and
Anr.6 Proceedings under Article 226 are in exercise of the original jurisdiction
of the High Court while proceedings under Article 227 of the Constitution are
not original but only supervisory. Article 227 substantially reproduces the
provisions of Section 107 of the Government of India Act, 1915 excepting that
the power of superintendence has been extended by this Article to tribunals as
well. Though the power is akin to that of an ordinary court of appeal, yet the
power under Article 227 is intended to be used sparingly and only in
appropriate cases for the purpose of keeping the subordinate courts and
Tribunals within the bounds of their authority and not for correcting mere
6 (1986) Supp. SCC 401.
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errors. The power may be exercised in cases occasioning grave injustice or
failure of justice such as when (i) the Court or tribunal has assumed a
jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction
which it does have, such failure occasioning a failure of justice, and (iii) the
jurisdiction though available is being exercised in a manner which tentamounts
to overstepping the limits of jurisdiction." (emphasis supplied)
17. In the light of the aforesaid enunciation of law, re-adverting to the facts
of the case, it is imperative to note that the Court in this case is called upon to exercise
writ jurisdiction in the context of an order passed in pursuance of the power conferred
under the Scheme of the Trust. Under the Scheme, as noted above, power to appoint
the trustees is vested in the Assistant Charity Commissioner. Undoubtedly, the
Assistant Charity Commissioner is obligated to consider the panel of names
nominated by the existing board of trustees. Ultimately, it is imperative to note, it is
for the Assistant Charity Commissioner to appoint persons whom he finds fit and
suitable to be trustees. The latter part of clause 10A, thus, explicitly provides that in
the event no panel is submitted by the existing trustees or if the names given in the
panel are not found suitable, the Assistant Charity Commissioner shall appoint new
trustees as he may deem fit and proper. Evidently, the Scheme vests authority in the
Assistant Charity Commissioner as he exercises parens patriae jurisdiction over the
public trusts.
18. Undoubtedly, the Assistant Charity Commissioner is required to
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exercise the power to appoint the trustees in a judicious manner. Discretion is not
unfettered. Trustees cannot be appointed at the whim or caprice of the Assistant
Charity Commissioner, de hors their suitability.
19. As noted above, the essential suitability of the persons nominated by the
then board of trustees cannot be assailed, for the Petitioner No.1 was himself a party to
the said nomination and also made an application for appointment of the trustees from
amongst them. The persons so nominated and also the persons who made application
for being appointed had, at best, a right to be considered. None had a vested right to
be selected. It was for the Assistant Charity Commissioner to assess their suitability.
20. Mr. Godbole's submission that uniform questions were not put to all the
candidates appears attractive at the first blush, but does not pass judicial muster. It is
not an immutable rule that all the interviewees should be put uniform questions to
assess their relative suitability. It all turns upon the overall profile of a given
candidate. The fact that the Assistant Charity Commissioner considered it proper to
put a particular line of questionnaire to a set of candidates and a different line of
questionnaire to another, without anything more, cannot be faulted at. What has to be
considered is whether the decision making process was impaired. I do not find that
there was such an infirmity.
21. Moreover, since the Assistant Charity Commissioner has appointed the
trustees in exercise of the power conferred under the Scheme, which vests a fair
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amount of discretion in him, in my considered view, the said discretion is not capable
of correction in exercise of writ jurisdiction.
22. The upshot of aforesaid consideration is that the Petition fails.
23. Resultantly, the following order :
ORDER
(i) Writ Petition No.6212 of 2022 stands dismissed.
(ii) Writ Petition No.6625 of 2022 also stands dismissed.
(iii) Rule discharged.
(iv) Interim Application No.30251 of 2022 also stands disposed.
(v) No order as to costs.
( N.J.JAMADAR, J. )
24. At this stage, in Writ Petition No.6212 of 2022, the learned Counsel for
the Petitioners seeks continuation of status quo order which was passed on 20 May
2022.
25. For the reasons assigned in this judgment, the prayer for status quo
does not deserve acceptance. Hence, the oral application for continuation of status
quo stands rejected.
( N.J.JAMADAR, J. )
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