Dashrath Wadguji Karemore And ... vs Ghanshyam Wadguji Karemore And ...
2023 Latest Caselaw 7743 Bom

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

                                   WRIT PETITION NO. 1854/2021

                          Dashrath Wadguji Karemore and others
                                           Vs.
                         Ghanshyam Wadguji Karemore and others

Office Notes, Office Memoranda                         Court's or Judge's orders
of Coram, Appearances, Court's
orders     or     directions and
Registrar's orders

                                   Mrs. S.P. Deshpande, Advocate for petitioners
                                   Mr. P.A. Gode, Advocate for Respondent Nos.1 and 2


                                   CORAM:       AVINASH G. GHAROTE, J.

DATED : 3rd AUGUST, 2023

Heard Mrs. Deshpande, learned counsel for the petitioners and Mr. Gode, learned counsel for the respondent Nos.1 and 2. None appears for the respondent No.3 though served.

2. The petition questions the judgment dated 25/3/2021, passed by the learned District Judge in proceedings under Section 72 of the Maharashtra Public Trusts Act, whereby the judgment by the learned Assistant Charity Commissioner dated 18/2/2014 in CR No. 270/2005 under Section 22 of the Maharashtra Public Trusts Act as well as the judgment dated 28/8/2017 in Appeal No.25/2014 by the Jt. Charity Commissioner has been set aside.

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3. The basic ground, for setting aside the aforesaid judgments was that the respondent No.1 Ghanshyam Wadguji Karemore, who was then the President of the Prashant Bahu-Uddeshiya Shikshan Sanstha, Andhalgaon and the respondent no.2 the member of the Executive Committee were not served with the notice of the meeting dated 07/12/1986 (page 30) in which the respondent no.1 was removed as a President as well as the member of the Society so also the respondent No.2 was also removed as a member.

3. Mrs. Deshpande, learned counsel for the petitioners submits, that since there was a refusal on the part of the respondent Nos.1 and 2 to accept the notice, the meeting held consequent to such refusal could not have been faulted with. Mr. Gode, learned counsel for the respondent nos.1 and 2 supports the impugned order contending that the requirement of bye-laws of service of notice have not been complied with.

4. A perusal of the bye-laws of the Society and specifically bye-law no.13(d) mandates that the manner of service of notice of the meeting is by tendering the notice and obtaining the signature on the notice book. It further mandates that in case a member does not sign on the notice book the notice

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is required to be sent to him by the registered post. Since a specific plea was raised by the respondent Nos. 1 and 2 that no notice of the meeting was ever served upon them, it was mandatory for the petitioners to demonstrate such service. Merely because the notice book does not contain the signatures of the respondent nos.1 and 2 that by itself cannot be reason to draw a presumption that the tender was made and refused for the reason that the bye-laws of the Society as indicated above then specifically enjoin upon the Society that in such a case the notice has to be sent by RPAD. There is no other material on record, to indicate that this was so done. Since this position is extant in the present matter, the absence of service of notice upon the respondent Nos. 1 and 2 in respect of the meetings dated 7/12/1986, 21/12/1986 and 04/01/1987 is evident and therefore, any resolution passed therein, including the one for removal of the respondent Nos. 1 and 2 as a President and Member of the Society would clearly be illegal. The Assistant Charity Commissioner as well as the Jt. Charity Commissioner have drawn a presumption based upon bye-law no.13(d) of the aforesaid Act regarding service of notice, which is in ignorance of the latter part of the same bye-law, considering which, such presumption of service on account of refusal is clearly

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unwarranted. In that view of the matter, I do not see any reason to interfere in the impugned order passed by the learned District Judge. The petition is therefore, dismissed. No costs.

JUDGE MP Deshpande