Abdul Quddus S/O Abdul Hamid And ... vs The Joint Charity Commissioner, ...
2023 Latest Caselaw 1223 Bom

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

                                  WRIT PETITION NO. 4973/2021

                     Abdul Quddus s/o Abdul Hamid and another
                                          Vs.
                      The Joint Charity Commissioner and others

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

                                  Mr. R.L. Khapre, Sr. Advocate a/b Mr. R.G. Kavimandan, Adv. for the
                                  Petitioners
                                  Mr. N.R. Patil, AGP for Respondent / State
                                  Mr. R.D. Karode, Advocate for Respondent Nos.3, 4 and 6 to 8

                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 6th FEBRUARY, 2023

Heard Mr. Khapre, learned Senior Counsel for the petitioners and Mr. Karode, learned counsel for respondent Nos.3, 4, 6 to 8 and N.R. Patil, learned Assistant Government Pleader for the State.

2. The petition primarily challenges the judgment dated 16/4/2018 passed by the Jt. Charity Commissioner, whereby the order dated 20/4/2017, passed by the Assistant Charity Commissioner, Washim in C.R. No.540/2015, has been set aside and the matter remanded back to the Assistant Charity Commissioner for fresh enquiry (page 319).

3. It is contended by Mr. Khapre, learned Senior Counsel for the petitioners that change report enquiry No.540/2015 was filed by one Abdul Gani 2 wp-4973-21.odt

Sheikh Chhotu (reporting trustee) for recording a change, said to have taken place in the managing committee of Hajrat Dada Hayat Kalandar Education Society, Mangrulpir in the general body meeting said to have been held on 23/3/2015 for the period 2015-18, wherein the trustees came to have been elected. CR No.540/2015, came to be dismissed on 20/04/2017 by the Assistant Charity Commissioner (page 180), however, while rejecting the change report, direction was passed vide operative para 2 (page 180) directing the alive members having their names in the list of members (Exh.74 in Enquiry No.102/2009) to conduct fresh election of new Executive Committee as per the provisions of the Constitution of the Trust within 3 months of the order under the supervision of the Inspector. The persons who had claimed to have been elected in CR No.540/2015 nor the reporting trustee filed any appeal against rejection of CR No.540/2015. It is the present petitioners, who had filed an appeal, challenging direction No.2 as indicated above (Page

213), being appeal No.23/2017. It is thus apparent that the challenge in appeal No. 23/2017, (page

314) was restricted to the direction No.2 as contained in the order dated 20/04/2017 and not against the rejection of the change report.

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4. The learned Jt. Charity Commissioner, however, by the impugned judgment dated 16/4/2018 (page 319), has set aside the entire order dated 20/04/2017, passed by the Assistant Charity Commissioner in CR No.540/2015, which according to him was not permissible.

5. Mr. Karode, learned counsel appearing for respondents No.3,4,6,7 and 8 does not dispute that the persons who were shown to have been elected in CR No.540/2015 did not challenge the rejection of C.R. No.540/2015.

6. It is thus apparent, that the challenge in appeal No.23/2017, to the order dated 20/4/2017 was restricted to direction No.2 at the behest of the present petitioners and the rejection of the change report by order 20/4/2017 in absence of any challenge thereto, had attained finality. Inspite of the same, the learned Assistant Charity Commissioner, by judgment dated 16/2/2018 had set aside the entire order dated 20/4/2017 passed in CR No.540/15 and has remanded the matter back to Assistant Charity Commissioner, Washim for fresh enquiry.

7. In my considered opinion, in view of the fact, that the rejection of CR No.540/2015, was never challenged, the learned Jt. Charity 4 wp-4973-21.odt

Commissioner did not have any jurisdiction to set aside the entire order dated 20/4/2017 passed in CR No.540/2015, as what was challenged before him was merely direction No.2 as contained in order dated 20/4/2017. It is therefore apparent, that the learned Jt. Charity Commissioner has transgressed the appeal itself and has by the impugned order decided something, which was never the subject matter of challenge in appeal No.23/2017, in view of which the judgment dated 16/4/2018 (Page 319) passed in appeal No.23/2017, cannot be sustained and the same is hereby quashed and set aside and the matter is remanded back to Jt. Charity Commissioner to decide appeal No.23/2017 on the basis of the challenge as raised therein as is indicated by prayer clause made in appeal No.23/2017 (page 213). In view of the above, the order dated 12/10/2021, (page 385), passed by the Assistant Charity Commissioner below Exh.25 in CR No.540/2015 also cannot be sustained and is hereby quashed and set aside and application Exh.25 is dismissed.

8. The challenge in respect of the orders below Exhs.23 and 32 in CR No.239/2015, is sustained, as by the order dated 17/11/2021 passed thereupon (page 370), there is merely addition of objectors and nothing else.

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9. The petition is therefore allowed in above terms. No costs.

10. It is however, at the costs of Rs.1,00,000/-, on account of the delay occasioned in challenging the order / judgment in appeal by the Jt. Charity Commissioner belatedly. The costs shall be deposited with High Court Legal Services Sub Committee, Nagpur, as a condition precedent before the learned Assistant Charity Commissioner takes up the matter.

JUDGE

MP Deshpande

Digitally signed by:MILIND P DESHPANDE Signing Date:08.02.2023 10:14