Sheshroa Manikrao Shrirao vs Vijay Ramgopal Farsoye ...
2023 Latest Caselaw 10325 Bom

2023:BHC-NAG:14671-DB




                                                1                    wp2104.2023

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

                               WRIT PETITION NO.2104/2003

            Shri Sheshrao Manikrao Shrirao,
            aged about 84 Yrs., Occ. Retired,
            R/o Pusla, Tq. Warud, Dist. Amravati.         ...    Petitioner
                  - Versus -
            1.   Shri Vijay Ramgopal Farsoye
                 (Khandelwal), aged about 74 Yrs.,
                 Occ. Business, R/o Pusla, Tq. Warud,
                 Dist. Amravati.
            2.   Shri Satyanarayan Bansilal Farsoye
                 (Khandelwal), aged about 85 Yrs.,
                 Occ. Nil, R/o Pusla, Tq. Warud,
                 Dist. Amravati.
            3.   Shri Salim M. Pathan,
                 Election Officer, Pusla Vibhag Sudhar
                 Samiti, Pusla Reg. No.F-164/Amravati
                 alias Superintendent, Office at Public
                 Charity Commissioner Office, Mhada
                 Building, 2nd Floor, Amravati.
            4.   Deputy Charity Commissioner,
                 Amravati, Office at Public Charity
                 Commissioner, Mhada Building,
                 2nd Floor, Amravati.                     ...   Respondents
                        -----------------
            Mr. P.N. Kadu with Mr. S.N. Chikhale, Counsel for the Petitioner.
            Mr. A.Z. Jibhkate, Counsel for respondent Nos.1 and 2.
            Mr. Amit Madiwale, Assistant Government Pleader for Respondent
            No.4.
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                                      2                   wp2104.2023

CORAM: A.S. CHANDURKAR & MRS. VRUSHALI V. JOSHI, JJ.

DATE : 6.10.2023

ORAL JUDGMENT (Per A.S. Chandurkar, J.)

Heard. Rule. Rule made returnable forthwith. Heard

finally by consent of learned counsel for the parties.

2. Challenge raised in this writ petition is to the order

passed by the learned Deputy Charity Commissioner, Amravati in

proceedings under Section 41A of the Maharashtra Public Trusts

Act, 1950 (for short "Act of 1950") on 28.3.2023 thereby interfering

with an order passed by the Election Officer and directing

acceptance of the nomination forms of respondent Nos.1 and 2 in

the election of the public trust.

3. Pursuant to the directions issued in Change Report

Application No.161/2017 the Inspector of the office of Deputy

Charity Commissioner, Amravati published election programme for 3 wp2104.2023

holding elections to the Managing Committee of the public trust.

The respondent Nos.1 and 2 filed their nomination forms which

came to be rejected by the Election Officer on the ground that he

found discrepancy in the names as indicated in the voters' list and

the documents produced by the said respondents. The respondent

Nos.1 and 2 challenged the said order by filing proceedings under

Section 41A of the Act of 1950. Though an objection was raised by

the petitioner to the tenability of the proceedings, the learned

Deputy Charity Commissioner by his order dated 28.3.2023 allowed

the said application and after setting aside the order passed by the

Election Officer directed acceptance of the nomination forms of

respondent Nos.1 and 2. Being aggrieved the said order is

challenged in the present writ petition.

4. The learned counsel for the petitioner by relying upon

the decision in the case of Lahudas Sambhaji Karad V/s. The State of

Maharashtra and others reported in AIR 1993 Bom 315 and Suresh

Shamrao Jadhav V/s. The Assistant Charity Commissioner and

others in Writ Petition No.5660/2018 decided on 11.6.2018 submits 4 wp2104.2023

that in proceedings under Section 41A of the Act of 1950 no

interference in the election process is permitted. The challenge to

any order passed by the Election Officer could be raised only at the

conclusion of the election and not by invoking jurisdiction under

Section 41A of the Act of 1950. According to him, though an

objection was raised to the tenability of the proceedings the same has

not been considered by the Deputy Charity Commissioner. The

order is, therefore, without jurisdiction.

5. The learned counsel for respondent Nos.1 and 2 has

relied upon the contents of Civil Application (CAW) No.1388/2023

to support the impugned order. According to him, the said

respondents being life members their names figured in the primary

voters' list and, therefore, rejection of their nomination forms on

technical grounds was unjustified. The learned Deputy Charity

Commissioner having found the order passed by the Election Officer

to be illegal rightly interfered and set aside the order. It is, therefore,

submitted that there is no case for interference with the order passed 5 wp2104.2023

by the learned Deputy Charity Commissioner especially when he

had the authority to act as custodian of the legal rights of the trust.

6. Having heard the learned counsel for the parties and

perused the documents on record we find that the scope of

interference in election process under Section 41A of the Act of 1950

stand settled by the decision in Lahudas Sambhaji Karad (supra)

which decision has been subsequently followed in Suresh Shamrao

Jadhav (supra). It has been held in clear terms that matters

pertaining to elections are beyond the provisions of Section 41A of

the Act of 1950. Perusal of the impugned order indicates that

despite such objection being raised, the learned Deputy Charity

Commissioner entertained the application under Section 41A of the

Act of 1950 on merits and set aside the order passed by the Election

Officer. We find that exercise of jurisdiction under Section 41A of

the Act of 1950 in the matter pertaining to election is not

permissible. On this count the order suffers from being passed by an 6 wp2104.2023

authority exceeding its jurisdiction. It is, therefore, liable to be set

aside.

7. For aforesaid reasons, the order dated 28.3.2023 passed

by the learned Deputy Charity Commissioner in proceedings bearing

Enquiry No.10/2023 is set aside.

The Election Officer shall proceed with the conduct of

election from the stage where it was stayed pursuant to the interim

order passed by this Court. It is clarified that respondent Nos.1 and

2 are free to challenge the outcome of the election in accordance with

law if they are aggrieved by the same. Their challenge on merits is

kept open. The writ petition is allowed in aforesaid terms. Rule is

disposed of accordingly. Civil application is also disposed of.

(MRS. VRUSHALI V. JOSHI, J.) (A.S. CHANDURKAR, J.)

Tambaskar.

Signed by: MR. N.V. TAMBASKAR Designation: PA To Honourable Judge Date: 07/10/2023 16:07:31