Bombay High Court
Bapurao Shankar Rathod vs The Joint Charity Commissioner And ... on 2 August, 2024
2024:BHC-AUG:16687
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7949 OF 2024
Bapurao Shankar Rathod
aged 59 years, occ. Agriculture
& President of Gunai Shikshan Prasarak Mandal
Kawalkhed,, Tq Udgir, Dist. Latur
R/o Kawalkhed, Tq. Udgir
Dist. Latur. .. Petitioner
versus
1. The Joint Charity Commissioner
Latur Region, Latur.
2. The Deputy Charity Commissioner
Latur Region, Latur.
3. Balasaheb s/o Narayan Rathod
aged 39 years, occ. Agriculture
r/o Kawalkhed, Tq. Udgir
Dist. Latur.
4. Sow. Jhoti Bapurao Rathod
aged 50 years, occ. Household
R/o Kawalkhed, Tq. Udgir
Dist. Latur.
5. Amit S/O Bapurao Rathod,
aged 26 years, occ. Agriculture
R/o Kawalkhed, Tq. Udgir
Dist. Latur.
6. Vijay s/o Shankarrao Rathod
aged 48 years, occ. Service,
R/o Kawalkhed, Tq. Udgir
Dist. Latur.
7. Digambar s/o Shankarrao Rathod
aged 62 years, occ. Agriculture
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R/o Kawalkhed, Tq. Udgir
Dist. Latur.
8. Prakash s/o Tukaram Rathod
aged 57 years, occ. Service
R/o Kawalkhed, Tq. Udgir
Dist. Latur.
9. Gulab s/o Shankarrao Rathod
aged 50 years, occ. Agriculture
R/o Kawalkhed, Tq. Udgir
Dist. Latur.
10. Shobha Vijay Rathod
aged 41 years, occ. Household
R/o Kawalkhed, Tq. Udgir
Dist. Latur.
11. Rohit s/o Bapurao Rathod
aged 20 years, occ. Education
R/o Kawalkhed, Tq. Udgir
Dist. Latur. .. Respondents
Mr. N. P. Patil Jamalpurkar, Advocate for the Petitioner.
Mr. S. B. Pulkundwar, AGP for the State.
Mr. M. S. Deshmukh, Advocate for Respondent No. 5.
Mr. V. D. Gunale, Advocate for Respondent No. 3.
CORAM : R. M. JOSHI, J.
RESERVED ON: 30th JULY, 2024.
PRONOUNCED ON : 2nd AUGUST, 2024
JUDGMENT :
1. Rule. Rule made returnable forthwith.
2. By consent of parties, heard finally at admission stage.
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3. This Petition takes exception to the judgment and order
dated 08.07.2024 passed by the Joint Charity Commissioner, Latur
(for short 'Jt.CC) in Revision No. 15/2024 whereby order passed in
Change Report No. 335/2023, accepting change report provisionally
under Section 22(2) of Maharashtra Public Trust Act (for short 'the
Act') is set aside.
4. Petitioner claims himself to be the founder member and
President of trust namely Gunai Shikshan Prasarak Mandal
registered under the Act as well as Societies Registration Act. It is
claimed that as the tenure of five years of the managing committee of
the trust was coming to an end in the month of May, 2024, a general
body meeting of the trust was held on 27.05.2022 wherein election of
the managing committee was done for the period from 2022-2027.
Petitioner claims to be elected as President and Respondent Nos. 4 to
11 being office bearers of the trust. Pursuant to the said election, the
newly elected executive committee took over charge of the
management of the trust and they started looking after its day to day
affairs. Petitioner filed Change Report bearing No. 335/2023 with
the Deputy Charity Commissioner (for short "Dy.C.C.") on
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12.04.2023 under Section 22 of the Act. He also filed an application
before the Dy. C.C. under the provisions of Section 22(2) of the Act
with a prayer to accept Change Report No. 335/2023 provisionally.
By order dated 30.01.2023, said report was accepted provisionally.
5. Respondent No. 3, being aggrieved by the said order filed
Revision Application bearing No. 15/2024 before the Jt. CC. Latur.
Prior thereto, this Respondent filed application for recalling order
dated 30.10.2023 before the Dy. C.C. The Jt. C.C. by passing
impugned order dated 08.07.2024, allowed the revision and set aside
the order passed by the Dy. C.C. dated 30.10.2023 whereby Change
Report No. 335/2023 was provisionally accepted.
6. Learned counsel for the Petitioner and Respondent No. 5
submitted that the revision application filed by Respondent No. 3
against the order passed by the Dy. C.C. is not maintainable for the
reason that the application for recalling of the order dated
30.10.2023 passed in Change Report No. 335/2023 is pending before
the said authority. It is argued that during the pendency of said
application, revision could not have been entertained. It is also
claimed that revision has been filed by suppressing said material fact
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from the revisional authority. Learned counsel for Respondent No. 5
in response to the judgment cited by Respondent No. 3 of this court
in case of Anand Sheshrao Bharose vs Rahul Vedprakash Patil and
others, in Writ Petition No. 3788/2021, submitted that this
judgment is set aside by Hon'ble Supreme Court. On merit of the
order passed by the revisional authority, it is contended that the
observations made by him for allowing the application are not
sustainable. It is submitted that the scheme of Section 22(2) of the
Act introduced by way of amendment to the Act does not contemplate
hearing of objections at the stage of provisional acceptance of the
change report. It is their contention that only Change Report bearing
No. 335/2023 filed by the Petitioner was moved for provisional
acceptance. No such prayer was made in Change Report No.
330/2023 filed by Respondent No. 3. It is their submission that
there is no bar created by relevant provision from accepting one
change report provisionally even in case of pendency of multiple
change reports for the same period. Learned counsel for Petitioner
submits that Respondent No. 3 is not member of the Trust and in
order dated 07.04.2011 passed by the Dy. C.C. in the change report
enquiry No. 251/2010 resolution dated 08.05.2010 by which
Respondent No. 3 was admitted as member is not accepted. Thus, it
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is their contention that Revision ought to have been entertained by
Jt.C.C. On these amongst other submissions, impugned order is
sought to be set aside.
7. Learned counsel for Respondent No. 3 opposed the said
submission by making several allegations against the Petitioner and
other Respondents of their involvement in the alleged activities which
are not in the interest of the trust. It is his submission that change
report filed by this Respondent is first in time and inspite of the
objection raised by him to the Change Report No. 335/2023 filed by
Petitioner, the Dy. C.C. has accepted said report provisionally without
affording any opportunity of hearing to this Respondent. He further
argues that even membership of Respondent No. 3 was accepted in
the same meeting in which he was made member of Trust and as
such, there is no substance in the contention of Petitioner that
Respondent No. 3 is not a valid member of the trust. It is his further
submission that there is no finding recorded by any competent
authority under the Act holding that Respondent No. 3 is not valid
member of the trust. He has also raised objection with regard to the
manner in which the order was passed by the Dy. C.C.. It is his
submission that application under Section 22 of the Act was filed on
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30.10.2023 and order passed by the Dy. C.C. indicates that the said
application was kept for hearing. However, surprisingly order came
to be passed on the same day accepting change report provisionally.
To support submission that Revision is maintainable, reliance is
placed on judgment of this Court in case of Anand Bharose (supra)
8. At the outset, this Court desires to deal with issue of
objection raised to the Revision filed by Respondent No. 3 against
order passed by Dy.C.C. accepting change provisionally, when an
application is filed for recalling of order before same authority. It is
also contended that there is suppression of facts from Revisional
Authority. Though now this objection is raised, but nothing is
pointed out to this Court that any objection was raised about
tenability of Revision on these grounds. Apart from this, there is no
dispute about the fact that a remedy of Revision would be available
against the order passed by Dy.C.C., challenged under Section 70A of
the Act before Jt.C.C. Even in case of Anand vs. Rahul Vedprakash
Patil and others, Appeal No. 4868/2022 (Spl. Leave Petition (C)
No.20248/2021), Hon'ble Supreme Court has not held that Revision
would not be maintainable but since parties were contesting number
of change reports before High Court, in the interest of justice, matter
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is directed to be decided by High Court. For these reasons, there is
no substance in the challenge to maintainability of Revision.
9. Before adverting to factual matrix, it would be relevant to take
into consideration provisions of Section 22 of the Act which read
thus :
22. Change
(1) Where any change occurs in any of the entries
recorded in the register kept under section 17, the
trustee shall, within 90 days from the date of the
occurrence of such change, or where any change is
desired in such entries in the interest of the
administration of such public trust, report such change
or proposed change to the Deputy or Assistant Charity
Commissioner in charge of the Public Trusts Registration
Office where the register is kept. Such report shall be
made in the prescribed form.
[Provided that, the Deputy or Assistant Charity
Commissioner may extend the period of ninety days for
reporting the change on being satisfied that there was a
sufficient cause for not reporting the change within the
stipulated period subject to payment of costs by the
reporting trustee, which shall be credited to the Public
Trust Administration Fund.]
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[(1A) Where the change to be reported under sub-section
(1) relates to any immovable property, the trustee shall,
along with the report, furnish a memorandum in the
prescribed form containing the particulars (including the
name and description of the public trust) relating to any
change in the immovable property of such public trust,
for forwarding it to the Sub-Registrar referred to in sub-
section (7) of section 18.
Such memorandum shall be signed and verified
in the prescribed manner by the trustee or his agent
specially authorised by him in this behalf.]
(2) For the purpose of verifying the correctness of the
entries in the register kept under section 17 or
ascertaining whether any change has occurred in any of
the particulars recorded in the register, the Deputy or
Assistant Charity Commissioner may [hold an inquiry in
the prescribed manner.]
It is thus clear that original Section 22 of the Act did
not provide for provisional acceptance of change report
and enquiry in the manner prescribed was mandatory
before accepting change. This provision went through
amendment with introduction of provisos to sub-
section 2 by Amendment Act LV of 2017, which reads
thus :-
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[Provided that, in the case of change in the names
and addresses of the trustees and the managers or the
mode of succession to the office of the trusteeship and
managership, the Deputy or Assistant Charity
Commissioner may pass order provisionally accepting
the change within period of fifteen working days and
issue a notice inviting objections to such change within
thirty days from the date of publication of such notice :
Provided further that, if no objections are received
within the said period of thirty days, the order accepting
the change provisionally under the first proviso shall
become final and entry thereof shall be taken in the
register kept under section 17 in the prescribed manner.
Provided also that, if objections are received
within the said period of thirty days, the Deputy or
Assistant Charity Commissioner may hold an enquiry in
the prescribed manner and record a finding, as provided
by sub-section (3) of this section, within three months
from the date of filing objections.]
(3) If the Deputy or Assistant Charity Commissioner,
as the case may be, after receiving a report under sub-
section (1) and holding an inquiry, if necessary under
sub-section (2), or merely after holding an enquiry under
the said sub-section (2), is satisfied that a change has
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occurred in any of the entries recorded in the register
kept under section 17 in regard to a particular public
trust, [or that the trust should be removed from the
register by reason of the change, resulting in both the
office of the administration of the trust and the whole of
the trust property ceasing to be situated in the State],
he shall record a finding with the reasons therefor [to
that effect; and if he is not so satisfied, he shall record a
finding with reasons therefor accordingly.] [Any such
finding] shall be appealable to the Charity
Commissioner. The Deputy or Assistant Charity
Commissioner shall [amend or delete the entries] in the
said register [in accordance with the finding which
requires an amendment or deletion of entries] and if
appeals [* * *] were made against such finding, in
accordance with the final decision of the competent
authority provided by this Act. The amendments in the
entries so made [subject to any further amendment on
occurrence of a change or any cancellation of entries,
shall] be final and conclusive.
[(3A) The Deputy or Assistant Charity Commissioner
may, after such detailed and impartial inquiry and
following such procedure as may be prescribed, de-
register the trust on the following grounds :-
(a) when its purpose is completely fulfilled; or
(b) when its purpose becomes unlawful; or
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(c) when the fulfilment of its purpose becomes
impossible by destruction of the trust-property or
otherwise; or
(d) when the trust, being revocable, is expressly
revoked; or
(e) when the trustees are found not doing any act for
fulfilling object of the trust:
Provided that, no trust shall be de-registered
under clause (c) unless its trustees have committed
default in reporting the change under sub-section (1), in
submission of the audited accounts as prescribed by
sub-section (2) of section 33 or sub-section (1A) of
section 34 or in making any other compliance prescribed
by or under this Act for a period of five years from the
last date of reporting the change, submission of the
accounts or making compliance, as prescribed by or
under this Act or the rules made thereunder, as the case
may be.
(3B) The Deputy or Assistant Charity Commissioner
may take over the management of properties of the trust
de-registered under sub-section (3A) and pass such
necessary orders for the same as he deems fit and may,
if he considers it expedient, dispose them of by sale or
otherwise and deposit the sale proceeds in the Public
Trusts Administration Fund established under section
57.]
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[(4) Whenever an entry is amended [or the trust is
removed from the register] under sub-section (3), the
Deputy or Assistant Charity Commissioner, as the case
may be, shall forward the memorandum furnished to
him under sub-section (1A), after certifying the amended
entry [or the removal of the trust from the register] to the
Sub-Registrar referred to in sub-section (7) or section 18,
[for the purpose of filing in Book No. 1 under section 89
of the Indian Registration Act, 1908, in its application to
the State of Maharashtra].
10. A bare perusal of the above provisions clearly indicate
that Section 22 is a complete scheme, for determination of change
report. Original Section 22 contemplates an enquiry before
acceptance of the report in prescribed manner. With amendment by
addition of three provisos to sub-section 2, power is given to
Dy.C.C./Assistant C.C. to accept change provisionally within 15
working days. Once a change is accepted provisionally, notice is
mandatorily required to be issued inviting objections to such change
within 30 days. Two contingencies are taken into account for
adopting further procedure. In case no objection is recorded within
30 days, order accepting change provisionally becomes final and
entry thereof shall be taken in register kept under Section 17 in
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manner prescribed therein. In the second situation, where objections
are received within 30 days, an enquiry is required to be held in the
prescribed manner and findings are to be recorded, as provided by
sub-section 3, within 3 months.
11. From the nature of the amendment, intention of
legislature is clear to expedite the decision of acceptance/rejection of
change. First proviso does not state literally requirement of an
enquiry before accepting change provisionally. However, at the same
time, it does not make it mandatory for Dy.C.C./Assistant C.C. to
accept the report provisionally, as the language of this provision is
that it may pass order provisionally accepting the change.
12. Even by keeping in mind legislative intent behind
introducing amendment of expeditious acceptance of change and
allowing management of trust by elected managing committee and
though no enquiry is contemplated before accepting change report
provisionally, such order cannot be passed in ignorance of material
already placed on record before the Dy.C.C./Assistant C.C. It cannot
be countenanced that objection if any already raised need not be
considered. May be till final acceptance of change, it is provisionally
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accepted, however, implication thereof is that the person whose
change is accepted so would become entitled to manage affairs of the
trust. At this stage, it would be apposite to refer to the judgment of
this Court in case of Jagatnarayan Swarupsingh vs Swarup Singh
Education Society and another, 1980 Mh. L.J. 372 wherein in
Paragraph No. 8 it is observed as under :-
"8. Therefore, though prima facie it appears to be a mere
change, the scheme of the Act contemplates qua the change
under consideration an inquiry of a Judicial character with
an appeal therefrom to the Charity Commissioner and a
further application under section 72 to the District Judge
and yet another appeal therefrom to the High Court against
which appellate judgment of the High Court, a still further
appeal may, in a given case, lie under the letters patent.
Such being the Judicial scrutiny and the extensive grant of
the inquiry under section 22 of the Act, it is obvious that this
inquiry can not be a mere factual process or one purely
formal in nature. Investigation into the legality and validity
of the change is implicit. The inquiry is a judicial process
pertaining the character of judicial adjudication. An
elemental perquisites or the minimal requirement of a judicial
inquiry and a judicial process is compliance with the
principles of natural justice. These principles, though not
embodies rules, constitute none the less an important facet
and pivot of the judicial process. Inquiry behind the back of
an aggrieved party is best avoided lest it stands vitiated.
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One affected must be noticed and heard. Basic lacuna in
that respect may well render the inquiry and or the order
therein almost non est at least qua the aggrieved absent
party left unheard and, therefore, unheeded.
13. With introduction of proviso, the character of proceedings
does not get changed. Since it is not intended that in any
circumstance change needs to be accepted provisionally, such
acceptance requires application of judicious mind. Needless to say
that it remains a judicial process and that minimum requirement of
adherence of principles of natural justice is mandatory. When it is
contemplated by second proviso that objection can be raised to the
change and it is required to be decided expeditiously, there is no gain
saying that when there is such objection to change on record, it can
be ignored and same objection to be considered after acceptance of
change provisionally. This could never be intention of the statute.
14. In considered view of this Court, the amended provision
needs to be considered not textually but contextually. In the event
there is no objection raised to the change report filed within 15 days
or where there is no other change report for the period covered by the
change report in question is pending for adjudication, in that case, it
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would be open for the Dy.C.C./Assistant C.C. to pass order
provisionally accepting change and for doing so full fledged enquiry
may not be required to be conducted at that stage, but opportunity of
hearing could be given to the Applicant seeking change, if necessary.
The situation however would be altogether different if there is already
an objection raised to the change report before acceptance of the
same provisionally or there is pendency of another change report for
the same period. In such situation, it would be obligatory on the part
of Assistant C.C./Dy. C.C. to consider the factum of pendency of
another report and to give opportunity of hearing to such objector to
grant of change provisionally. There is no logic to differ this exercise
post acceptance of change provisionally. Adopting such procedure
will not only give opportunity of hearing to the aggrieved party in
adherence of principles of natural justice but it will make the
decision transparent and more accountable.
15. Reverting back to the facts of instant case, it is not in
dispute that Change Report No. 300/2023 is filed by Respondent No.
3 for the same period for which Petitioner has filed Change Report
No. 335/2023. It is also seen from the order passed by the Dy. C.C.
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that in both enquiries, the other side has raised objection for grant of
change report. Order passed by Dy.C.C. indicates that this authority
had knowledge of these facts, however, without giving an opportunity
to the objector, order came to be passed behind his back. Moreover,
this Court agrees with observations made by Jt.C.C. to the effect that
the manner in which order is passed is perverse. Perusal of record
indicates that the application for provisional acceptance of change is
filed on 30.10.2023. Dy.C.C. passed order thereon "keep for
hearing". It is thus clear that no hearing had taken place on
application on that date. The order however is dated 30.10.2023. In
such event, it can be safely said that the order has been passed
without hearing. At this stage, this Court refrains itself from making
any further comments on this issue. Suffice it to say that the
manner in which said order is passed becomes a reason for its non-
sustainment.
16. The findings recorded by learned Jt. C.C. to the effect
that before passing order of provisional acceptance of change,
opportunity of hearing ought to have been given to Respondent No. 3
is not contrary to basic principles of law and in no case contrary to
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the spirit of amendment to Section 22 of the act. Having regard to
overall facts and circumstances of the case and in view of above
discussion no error seems to have been committed by learned Jt.C.C.
in setting aside order passed by Dy.C.C. in Change Enquiry No.
335/2023. Thus, no interference is required in impugned judgment
and order.
17. This Court is informed that there are directions issued by
this Court in Writ Petition No. 4346/2024 for expeditious decision on
Change Report Nos. 300/2023 and 335/2023 and these proceedings
are before the Dy. C.C. for final hearing on 01.08.2024. Counsel for
both sides are unanimous to say that these proceedings can be
decided before 16.08.2024. Hence, Dy.C.C. to decide both enquiries
on or before 16.08.2024. It shall be responsibility of Petitioner to
bring to the notice order passed by this Court forthwith.
18. In the result, Petition stands disposed of. Rule made
absolute in above terms.
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19. It is clarified that the Dy.C.C. not to get influenced by the
order passed by this Court on merit.
( R. M. JOSHI)
Judge
dyb
