Umesh Ramkurshna Solunke And ... vs The State Of Maharashtra Through ...
2023 Latest Caselaw 501 Bom

                                     1                   WP / 7408 / 2022



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                       WRIT PETITION NO. 7408 OF 2022

1] Umesh S/o. Ramkrushna Solunke,
   Age - 42 years, Occu. Business,
   R/o. Marwad, Tq. Amalner,
   District : Jalgaon

2] Sahebrao S/o. Chindha Patil,
   Age - 51, Occu. Agril,
   R/o. At. Ektas, Post. Shapur,
   Tq. Amalner, District : Jalgaon                           .. Petitioners

      Versus

1] The State of Maharashtra,
   Through its Secretary,
   Social Justice Department,
   Mantralaya, Mumbai     .. [DELETED]

2] The Deputy Charity Commissioner,
   Jalgaon, Tq. & Dist. Jalgaon

3] The Khandesh Education Society,
   Amalner, Tq. Amalner, Dist. Jalgaon,
   Through its Secretary,
   Arun Babulal Jain,
   Age - Major, Occu. Business,
   R/o. Amalner, Tq. Amalner,
   District : Jalgaon

4] The Khandesh Education Society,
   Amalner, Tq. Amalner, Dist. Jalgaon
   Through its President,
   Anil Madhukar Patil (Kadam),
   Age - Major, Occu. Business,
   R/o. Amalner, Tq. Amalner,
   District : Jalgaon                                    .. Respondents

                                    ...
              Advocate for petitioners : Mr. V.V. Deshmukh
           AGP for the respondent - State : Mr. S.B. Yawalkar
      Respondent no. 1 deleted as per Court's order dated 19-07-2022
       Advocate for the respondents nos. 3 and 4 : Mr. S.P. Brahme
                                    ...




 ::: Uploaded on - 13/01/2023                  ::: Downloaded on - 15/01/2023 00:06:26 :::
                                      2                      WP / 7408 / 2022




                                CORAM     : MANGESH S. PATIL &
                                            S.G. CHAPALGAONKAR, JJ.

                                RESERVED ON   : 9 JANUARY 2023
                                PRONOUNCED ON : 13 JANUARY 2023



JUDGMENT (MANGESH S. PATIL, J.) :

We have heard both the sides.

2. Rule. Rule is made returnable forthwith. At the joint

request of the parties, the matter is being disposed of finally at the

stage of admission.

3. The petitioners who are the members of the respondents

nos. 3 and 4 - Education Society registered as a public trust under the

Maharashtra Public Trusts Act, 1950 (Act) are questioning the legality

and validity of the order passed by the Deputy Charity Commissioner,

Jalgaon in a proceeding under section 41-A of the Act whereby they

were seeking a direction for better administration of the trust for holding

fresh elections to be held in accordance with the approved rules of

elections of the trust.

4. The basic bone of contention of Mr. Deshmukh learned

advocate appearing on behalf of the petitioners is that a general body

of the trust had resolved to modify the rules of elections in a meeting

held on 10-03-2019 inter alia modifying rule 22-A which provided a

3 WP / 7408 / 2022

particular manner of voting should be undertaken at the election for

electing managing committee. He would submit that change report no.

734 of 2019 was pending. It was partly allowed except the modification

in rule 22-A. One Gokul Bhika Patil had approached this Court in writ

petition no. 296 of 2022 raising an objection to the conduct of elections

and this Court had passed the following order on 11 February 2022 :-

"10. Considering now the further steps of elections are being conducted, we pass the following order :-

ORDER

(i) The voting scheduled on 13th February, 2022 may be held, however, the results of the elections shall not be declared unless the orders are passed on Change Application No.734/2019 by the office of the Deputy Charity Commissioner, Jalgaon.

(ii) The Deputy Charity Commissioner, Jalgaon shall endeavour to decide the said Change Application no. 734/2019 within one month.

(iii) The petitioner and respondent nos. 2 and 3 shall appear before the office of the Deputy Charity Commissioner, Jalgaon on 17 th February, 2022.

(iv) The further steps in the elections may be conducted in tune with the orders that may be passed in Change Application No.734/2019.

(v) Needless to state, we have not observed anything on merits of the amendment of the bye-laws. It is for the office of the Deputy Charity Commissioner to take decision on its own merits.

(vi) The writ petition is disposed of. No costs.

(vii) Authenticated copy be given."

The learned advocate would submit that in spite of such a direction, the

elections have been held ignoring the fact that rule 22-A was not

approved of and the election is void ab initio. He would submit that

even if the petitioners can raise this dispute in a change report to be

filed pursuant to such election when the election has been held in the

4 WP / 7408 / 2022

afore-mentioned facts and circumstances, the circumstances would go

to the root of the validity of the election and the learned Deputy Charity

Commissioner ought to have issued directions in the light of the

enabling provision contained in section 41-A of the Act directing a fresh

election for the better administration.

5. Mr. Deshmukh would rely upon decisions of this Court in

the matter of Sthanakwasi Jain Sangh, Shrirampur V. Deepak

Hukumchand Duggad; AIR Online 2020 Bom 2013 and the decision

of the learned Single Judge of Gujarat High Court in the matter of

Rashmikant Chhaganbhai Patel V. Joint Charity Commissioner,

Vadodara and others; AIR 2006 GUJARAT 9.

6. Per contra, Mr. Brahme would submits that already this

Court had an occasion to consider the peculiar facts and

circumstances in a writ petition filed by one Kalyan Sahebrao Patil

bearing writ petition no. 6711 of 2022 decided on 22-11-2022. The

earlier decision in writ petition no. 296 of 2022 dated 11-02-2022

(supra) was also brought to the notice of this Court. He would point out

that when admittedly the decision in the change application no. 734 of

2019 discarding clause 22-A is a subject matter of the statutory appeal

before the Joint Charity Commissioner, this Court had dismissed that

petition and the same course should be followed even in the matter in

hand.

5 WP / 7408 / 2022

7. Going by the scheme of the Act and particularly in respect

of change which is required to be reported under section 22, it is trite

that change relates back to the date it has actually occurred. Section

22 requires it to be reported to the charity office and its legality and

validity is to be examined by the Charity Commissioner. Admittedly, by

passing a resolution in the general body, the election rules were sought

to be modified and change was reported in change application no. 734

of 2019. Rest of the modifications were approved except rule 22-A.

It is, therefore, quite clear that so long as refusal of

approval to modification in rule 22-A does not reach finality, its

operation cannot be said to have been suspended when a statutory

appeal is pending before the Joint Charity Commissioner. Even if it is

assumed that the elections have been held as if modified rule 22-A is in

place, its consequences and the validity of the consequential change

would depend upon the fate of that appeal.

At this juncture when the appeal is pending before the

Joint Charity Commissioner, one cannot conclude that rule 22-A has no

place. The change has already occurred in view of passing of

resolution by the general body to have that rule. It is only after it was

reported to the office of the charity commissioner that the change has

been accepted except a modification to rule 22-A. If the appeal is

6 WP / 7408 / 2022

allowed, certainly such modification would be in place and the elections

if at all those have been held by giving effect to such modification

would operate from the date of its occurrence and could not be

questioned on that ground.

8. Suffice for the purpose to refer to the decisions of the

learned Single Judge of this Court in the matter of Chembur Trombay

Education Society and others V. D.K. Marathe and others; 2002 (3)

Bom.C.R. 161. In paragraph no. 11, it has been concluded that a

resolution of a general body is sufficient to ignite the change in the

amendment to the constitution of the society irrespective of the fact that

the change report is pending consideration before the Charity

Commissioner under section 22. If such is the position in law, when

admittedly, a statutory appeal to the extent of refusal of the Deputy

Charity Commissioner to modify rule 22-A is pending, the change

cannot be ignored when it has been admittedly approved by the

general body.

9. As far as the order of this Court in writ petition no. 296 of

2022 is concerned, the consequences of the order would be to the

effect that the elections would be subject to the final outcome of the

decision in change application no. 734 of 2019.

7 WP / 7408 / 2022

10. In view of above, no interference can be caused in the

view taken by the Deputy Charity Commissioner in refusing to issue

any directions for holding the elections ignoring modification in section

22-A.

11. The writ petition is dismissed.

12. Hearing of the appeal against the order passed in change

application no. 734 of 2019 is expedited.

13. Rule is discharged.

  [ S.G. CHAPALGAONKAR ]                         [ MANGESH S. PATIL ]
          JUDGE                                        JUDGE

arp/