Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3382 OF 2018
1] Mrs. Vidya Rajaram Bandiwadekar )
Age: 63 yrs. Occ: Pensioner, )
R/o. At Post :Chandgad, Dist: Kolhapur, )
)
2] Vikrant Rajaram Bandiwadekar, )
Age : 35 yrs., Occ: Engineer, )
R/o. At Post : Chandgad, Dist:Kolhapur, )
)
3] Ramchandra Ramesh Deshpande, )
Age: 41 yrs., Occ: Office Superintendent,)
R/o. At Post : Guruwar Peth, )
Tal. Chandgad, Dist : Kolhapur, )
)
4] Sanjay Mahadeo Patil, )
Age: 46 yrs., Occ: Professor, )
R/o. At Post : Shivange, )
Tal. Chandgad, Dist. Kolhapur, )
)
5] Subhash Pandurang Bandiwadekar, )
Age: 68 yrs., Occ: Pensioner, )
R/o. At Post : Sane Guruji Vasahat, )
Dist. Kolhapur, )
)
6] Ashok Narsinghrao Patil, )
Age: 67 yrs., Occ: Farmer, )
R/o. At Post : Shivange, Tal.Chandgad, )
)
7] Gopal Barmu Bokade, )
Age: 74 yrs, Occ: Pensioner, )
R/o. At Post : Karve, Tal. Chandgad, )
)
PANDIT
Age: 45 yrs., Occ: Pensioner, )
R/o. At Post: Mandedurg, Tal. Chandgad )
)
9] Govind Prabhu Patil, )
Age 70 yrs, Occ: Farmer, R/o. At Post: )
Shivange, Tal. Chandgad, Dist. Kolhapur ) ….. Petitioners.
Through the Deputy Charity )
Commissioner, Kolhapur. )
)
2] Laxman Vitthoba Jadhav, )
Age: 71 yrs., Occ: Pensioner, )
R/o. At Post : Murkutewadi, )
)
3] Ramana Barmana Patil, )
Age : 72 yrs., Occ: Farmer, )
R/o. At Post : Nandawade, )
Tal. Chandgad, Dist. Kolhapur ) ….. Respondents.
1] Khedut Shikshan Mandal Kalkundri )
Chandgad Office, Tal. Chandgad, )
Dist. Kolhapur, PTR No.107, Kolhapur )
Through its Senior Turstee, )
Shri Suresh Rukmana Devan, )
Age 56 yrs., Occ: Teacher, R/o. At Post )
Nagardale, Tal. Chandgad, Dist.Kolhapur)
Khedut Shikshan Mandal, Kalkundri )
Tal. Chandgad, Dist. Kolhapur )
)
Age 65 yrs, Occ: Advocate, R/o At Post: )
Chandgad, Dist. Kolhapur, )
)
3] Mandhukar Shankar Mulik, )
Age: 80 yrs., Occ: Pensioner, )
R/o. At Post : Chandgad, )
Dist. Kolhapur. )
)
4] Laxman Dhondiba Kamble, )
Age 68 yrs. Occ: Pensioner, R/o. )
At Post : Chandgad, Dist. Kolhapur, )
)
5] Pandurang Chudoji Patil, )
Age: 75 yrs., Occ: Pensioner, )
R/o. At Post : Ujlaiwadi, )
)
6] Maruti Zilu Patil, )
Age: 65 yrs. Occ: Farmer, )
R/o. At Post: Nandawade, )
)
7] Maruti Nana Pawar, )
Age: 80 yrs., Occ: Farmer, )
R/o. At Post: Mandedurg, )
)
8] Anand Vitthal Sutar, )
Age: 53 yrs, Occ: Pensioner, )
R/o. At Post : Tambulwadi, )
Dist. Kolhapur ) ….. Petitioners.
(Orig. Applicants)
)
Age: 71 yrs, Occ: Pensioner, R/o. At Post )
Murkutewadi, Tal. Chandgad, )
)
3] Ramana Barmana Patil, )
Age: 72 yrs, Occ: Farmer, R/o. At Post: )
Nandawade, Tal. Chandgad, Dist. )
Kolhapur.
1] Mrs. Vidya Rajaram Bandiwadekar )
Age: 63 yrs. Occ: Pensioner, )
R/o. At Post :Chandgad, Dist: Kolhapur, )
)
2] Vikrant Rajaram Bandiwadekar, )
Age : 35 yrs., Occ: Engineer, )
R/o. At Post : Chandgad, Dist:Kolhapur, )
)
3] Ramchandra Ramesh Deshpande, )
Age: 41 yrs., Occ: Office Superintendent,)
R/o. At Post : Guruwar Peth, )
Tal. Chandgad, Dist : Kolhapur, )
)
4] Sanjay Mahadeo Patil, )
Age: 46 yrs., Occ: Professor, )
R/o. At Post : Shivange, )
)
5] Subhash Pandurang Bandiwadekar, )
Age: 68 yrs., Occ: Pensioner, )
R/o. At Post : Sane Guruji Vasahat, )
)
6] Ashok Narsinghrao Patil, )
Age: 67 yrs., Occ: Farmer, )
R/o. At Post : Shivange, Tal.Chandgad, )
7] Gopal Barmu Bokade, )
Age: 74 yrs, Occ: Pensioner, )
R/o. At Post : Karve, Tal. Chandgad, )
)
8] Dayanand Maruti Bhogan, )
Age: 45 yrs., Occ: Pensioner, )
R/o. At Post: Mandedurg, Tal. Chandgad )
)
9] Govind Prabhu Patil, )
Age 70 yrs, Occ: Farmer, R/o. At Post: )
Shivange, Tal. Chandgad, Dist. Kolhapur )
)
10] Nagesh Dhodiba Mane )
Age : 68 yrs., Occ: Pensioner )
R/at : Mangaon, Tal. Chandgad, )
Dist : Kolhapur, ) ….. Petitioners.
)
2] Rajaram Parashram Patil, )
Secretary, Khedut Shikshan Mandal, )
Kalkundri, Ramdev Galli, Chandgad, )
)
3] Gundu Somna Patil, )
Age 75 yrs. Occupation: Pensioner )
)
4] Nagoji Kallu Patil, )
Age : 74 yrs., Occupation: Pensioner )
)
5] Mahadeo Bandu Patil, )
Age 65 yrs, Occupation : Pensioner, )
Nos. 3 to 5 R/ at : Kalkundri, )
)
)
6] Shahu Moti Fernandes, )
Age 64 yrs Occupation: Pensioner, )
R/at: Kini, Tal: Chandgad, )
Dist: Kolhapur, )
)
7] Sadashiv Ramrao Patil, )
Age: 80 yrs. Occ: Advocate, )
R/at 1624, Natuwada, Ansurkar Galli, )
Belgaon. )
)
8] Vitthal Bhauji Chandekar, )
Age: 84 yrs. Occ: Pensioner, )
C/o B. V. Chandekar, 9/24, Shraddha )
Garden, Gawade Park, in front of )
Tata Motors, Chinchwad, Pune. )
)
9] Ramchandra Narsu Patil, )
Age 82 yrs, Occ: Pensioner, )
R/at Tambukwadi, Tal. Chandgad, )
)
10] Balakram Baburao Patil )
Age: 70 yrs., Occ: Business, )
R/o Second Mail, Chawanprash, )
5th
Cross, Sadashivnagar, Belgaum )
)
11] Laxman Vitthoba Jadhav )
Age 70 yrs, Occ: Pensioner, )
R/o. Murkutewadi, Post Karve, )
Tal Chandgad, Dist. Kolhapur )
)
12] Vaijnath Appaji Patil )
Age 72 yrs., Occ: Pensioner, )
R/o Teachers’ Colony, Cross No.35, )
Vijaynagar, Post Hindalga, Tal. Belgaum )
)
Age: 85 yrs., Occ: Pensioner, )
House No.203, Cross No.2, Rakshak )
Colony Pipe Road, Vijaynagar, )
Post Hindalga, Tal. Belgaum. )
)
14] Ramana Bharmana Patil )
Age 69 yrs., Occ: Agriculture, )
R/o. Nandwade, Tal. Chandgad, )
Dist. Solapur, )
)
15] Anand Vitthal Sutar, )
Age: 54 yrs., Occ: Clerk, R/o )
Vinayak Nagar, Tal. Chandgad, )
)
16] Waman Dattatray Sadekar, )
Age : 70 yrs., Occ: Pensioner, )
R/o. Ground Floor, Ekdant Bldg. )
Wada Compound, Angol, Belgaum )
)
17] Pandurang Chudoji Patil )
Age: 75 yrs. Occ: Pensioner. )
R/o 42B, 6 Hirval, )
Yeshwantrao Chavan Colony, )
NH 4, in front of MIDC Colony, )
Ujalaiwadi, Tal. Karvir. Dist. Kolhapur )
)
18] Rajaram Pandurang Bandiwadekar )
Age : 65 yrs, Occ: Advocate, R/o New )
Vasahat, Chandgad, Tal. Chandgad, )
Dist. Kolhapur )
)
19] Madhukar Shankar Mullik, )
Age 82 yrs. Occu: Pensioner, )
R/o. Mahatma Gandhi Road, )
Brahman Galli, Chandgad, )
Tal. Chandgad, Dist. Kolhapur )
)
Age:70 yrs., Occ: Pensioner, R/o )
Ambedkar Nagar, Tal. Chandgad, )
)
21] Maruti Nana Pawar, )
Age 70 yrs., Occ: Agriculture, )
R/o Mandedurg, Tal. Chandgad, )
)
22] Maruti Zilu Patil )
Age: 68 yrs., Occ: Agriculure, )
R/o Nandwade, Tal. Chandgad, )
Dist. Kolhapur )
)
23] Shri Suresh Rukmana Dewan, )
Age: 56 yrs., Occ: Teacher, )
R/at Nagardale, Tal. Chandgad, )
Dist. Kolhapur ) …… Respondents.
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Mr. Vishwanath Talkute for the Petitioners in Writ Petition No.3383 of
2018.
Mr. Surel Shah i/b Mr. Sukumar Ghanavat for the Petitioner in Writ
Petition No.3382 of 2018 and Writ Petition No.4116 of 2019.
Mr. N. V. Bandivadekar, Senior Advocate i/b Mr. Shantanu Patil for
Respondent-State.
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Date on which the arguments were concluded : 4th April, 2024
Date on which the
JUDGMENT
1] Rule. Rule made returnable forthwith and heard learned Counsel for the parties.
2] In Writ Petition Nos. 3382 of 2018 and 3383 of 2018 the order passed by the learned Deputy Charity Commissioner under Section 41-
A of the Maharashtra Public Trusts Act, 1950 (for short, “the Act of
1950”) is under challenge. By that order while issuing directions to the
Public Trust to conduct elections as per the bye-laws of the Trust it has been held that only those members enrolled till 16/05/1999 would have a right to participate in the said elections. A further direction has been issued to the trust to make an application under Section 50-A(3) of the Act of 1950 for amendment of the bye-laws and hold elections thereafter. Pursuant to the aforesaid directions, proceedings under
Section 50-A of the Act of 1950 were initiated. In the said proceedings an application under Section 73-A of the Act of 1950 came to be filed seeking permission to intervene in the proceedings. By the order passed below Exhibit-31 on 07/02/2019 that application came to be rejected by the learned Deputy Charity Commissioner. The said order is
3] Facts relevant for deciding the writ petitions are that Khedut
Shikshan Mandal, Kalundri is a Public Trust registered under the Act of
1950. On 16/05/1999 in the meeting of the General Body various resolutions were passed and the Governing Council was elected for a period of three years. Pursuant to the aforesaid, various Change Reports were filed by the reporting trustee. However, the said Change Reports came to be rejected on 11/01/2017. On 23/08/2017 an application under Section 41A of the Act of 1950 came to be filed seeking a direction to appoint a committee of five members to manage the affairs of the Public Trust. However, during pendency of the said proceedings the said prayer was given up. By amending the application, it was prayed that an Election Officer be appointed and elections of the Trust be held. On 05/02/2018 the learned Deputy Charity Commissioner directed the parties to submit a list of members of the Trust. An objection was also raised in the said proceedings that an ad-hoc Committee could not be appointed for managing the affairs of the Trust. It was further stated that since there were twenty three valid members, the Executive Committee be constituted by holding elections amongst them. The learned Deputy Charity Commissioner after hearing both sides proceeded to examine the validity of the members enrolled after the General Body meeting was held on 16/05/1999. He recorded a finding that those members who were enrolled after 16/05/1999 could not be treated to be validly enrolled members. Ten members enrolled on 16/05/1999 were found to be ineligible to continue as members. He, thereafter, found that it would not be possible to elect the members of the Executive Committee from the remaining members. The learned Deputy Charity Commissioner therefore directed that the bye-laws of the Trust be treated to be a Scheme under the Act of 1950. A direction was issued to the valid members that under Section 50-A(3) of the Act of 1950 an application be made for amending the bye-laws and based on that decision, elections be held. Thus by the order dated 01/03/2018 proceedings under Section 41-A of the Act of 1950 were decided and elections were directed to be held. This order is the subject matter of challenge in Writ Petition Nos. 3382 of 2018 and 3383 of 2018. 4] The learned Counsel for the Petitioners while challenging that part of the order passed under Section 41-A of the Act of 1950 adjudicating the issue of membership submitted that the learned Deputy Charity Commissioner was not legally justified in going into the validity of membership. In proceedings under Section 41-A the Authority was concerned only with issuing directions for the proper administration of the Public Trust. The order passed in such proceedings would be an administrative order and no lis with regard to the disputes inter se between the members could be adjudicated. The nature of the proceedings under Section 41-A had been explained by the Division Bench in Vanmala Manoharrao Kamdi and others vs. Deputy Charity Commissioner, Nagpur and others, 2012(3) Mh.L.J.
594. For this reason, the issue with regard to eligibility as well as legality of members could not have been examined by the learned Deputy Charity Commissioner. Further, postponing holding of elections till proceedings under Section 50-A of the Act of 1950 was also not justified since that direction defeated the purpose behind directing holding of elections of the Public Trust. To substantiate the aforesaid contentions, reliance was also placed on the decision in Hazrat Maulana Mufti Mujeeb Ashraf Sahab and Others vs. Allamah Haji Sayed Hussaini Miyan Sahab and Others, (2020) 4 Mh. L.J. 757 and in Sandeep Ram Meghe and Ors. Vs Pundlikrao Balaji Gohad and Ors. (2013) 4 Mh.L.J. 703. The learned Counsel further submitted that reliance placed by the learned Charity Commissioner on the decision in Maha Pragya Vidya Nidhi Foundation and Ors. vs. State of Maharashtra and Ors. 2006 (4) Mh.L.J. 50 while issuing such directions was misplaced. It was pointed out that while issuing notice in the writ petitions, an ad-interim order was passed directing the learned Charity Commissioner to decide the application under Section 50A of the Act of
1950. However, any decision taken on that application was directed not to be implemented without leave of the Court. As regards the challenge raised in Writ Petition No.4116 of 2019, it was submitted that the application preferred by the Petitioners under Section 73-A of the Act of 1950 ought to have been allowed since the scheme proceedings were under consideration. Rejection of that application was unjustified. In any event, it was submitted that the outcome of those proceedings was subject to challenge to the order passed under Section 41-A of the Act of 1950 dated 01/03/018. 5] The learned Senior Advocate appearing for the private Respondents supported the order dated 01/03/2018. It was urged that since the Change Reports that were filed pursuant to the conduct of the General Body meeting on 16/05/1999 had been rejected, the learned Deputy Charity Commissioner was justified in holding that only those members validly enrolled prior to 16/05/1999 were eligible to participate in the elections. The Change Reports that were filed had been rejected on 11/01/2017 and hence only those members who were validly enrolled had been rightly permitted to participate in the elections. There was no illegality committed in that regard. Since the provisions of Section 41-A of the Act of 1950 empowered the learned Deputy Charity Commissioner to issue directions for the proper administration of the Trust, no fault could be found with that direction. Similarly the directions with regard to amendment of the bye-laws by modifying the same under Section 50-A was also within the jurisdiction of the learned Deputy Charity Commissioner. This direction pertained to facilitating smooth administration of the Trust. After the elections were held, persons aggrieved could always challenge the same in accordance with law. It was thus submitted that the observations made in paragraphs 12 to 15 of the impugned order were based on the documentary material on record and no interference with the same was called for. The order passed under Section 73-A of the Act of 1950 also did not deserve to be interfered with. It was prayed that all the writ petitions were liable to be dismissed. 6] We have heard the learned Counsel for the parties and with their assistance we have perused the documentary material on record. The first issue to be considered is, whether in an application preferred under Section 41-A of the Act of 1950 the issue with regard to validity of members of the Public Trust could be gone into. In our view, such exercise is not permissible in view of the nature of jurisdiction exercised while issuing directions under Section 41-A of the Act of
1950. The scope and width of the provisions of Section 41-A has been considered in detail in Vanmala Manoharrao Kamdi and others (supra). It has been held therein that nature of jurisdiction exercised by the Authority under Section 41-A is of an administrative nature and that the rights inter se of competing parties cannot be decided in such proceedings. While exercising such power, it has been held that the Authority does not act as a judicial or quasi-judicial Authority. In such proceedings, no lis is decided and hence neither any statutory remedy of appeal or revision has been provided against such administrative order passed under Section 41-A of the Act of 1950. Following the aforesaid decision, it has been held in Hazrat Maulana Mufti Mujeeb Ashraf Sahab and Others (supra) that it is only if it is found that the Trust is not being properly administered or that its income is not being properly utilized for the objects of the Trust that such jurisdiction can be exercised. In view of the aforesaid decisions, it becomes clear that the nature of jurisdiction exercised is purely administrative in nature and inter se rights of parties including the issue of membership cannot be adjudicated therein. 7] Perusal of the impugned order dated 01/03/2018 indicates that after finding that a direction to hold elections for the proper administration of the Trust was warranted, which direction was acceptable to all parties, the learned Deputy Charity Commissioner undertook the exercise of examining the status of members on the premise that members enrolled after 16/05/1999 had no legal right whatsoever. It was held that only those members enrolled prior to that date could participate in the elections. This direction cannot be sustained for reasons more than one. As stated above, this exercise cannot be undertaken under Section 41-A so as to ensure proper administration of the Trust. It is linked to the rights claimed by individual members and would require adjudication after due opportunity to parties in exercise of powers conferred in that regard. Such exercise is beyond the scope of Section 41-A of the Act of 1950. Further, the members likely to be affected by a finding that those enrolled after 16/05/1999 had no legal right to participate in the elections ought to have been heard before such adjudication. It is not in dispute that members affected by such finding were not heard before the same was recorded. In a contest between the members claiming rival rights, this issue could have been considered. Reference in this regard can be made to the decision in Shahid Javed Maniyar and another vs. Sagir Munikhan Sarguroh (DR.) and others, 2014(5) Mh.L.J. 823 relied upon by the learned Counsel for the Petitioners where a somewhat similar direction restricting the members enrolled up to a particular date to participate had been set aside. Though the learned Deputy Charity Commissioner relied upon the decision in Maha Pragya Vidya Nidhi Foundation and Ors (supra), the directions issued therein were in the factual backdrop of orders passed in the preceding litigation. The said decision has been considered in Vanmala Manoharrao Kamdi (supra). It thus becomes clear that the finding recorded by the learned Deputy Charity Commissioner in the impugned order that members enrolled after 16/05/1999 had no legal right whatsoever to participate in the elections is pursuant to an exercise undertaken beyond jurisdiction and thus liable to be set aside. 8] Insofar as the other direction issued based on the proceedings under Section 50-A of the Act of 1950 is concerned, it is seen that it was found by the learned Deputy Charity Commissioner that from amongst existing members, the Executive Committee could not be elected. This was for the reason that the requisite number of members were not available. On that basis it was observed that the bye-laws of the Public Trust be treated as a Scheme under Section 50-A of the Act of 1950. A further direction was issued to seek amendment of the Scheme and based on such adjudication the elections were directed be conducted. It may be noted that when the application under Section 41-A of the Act of 1950 was filed on 23/08/2017 it was only the Charity Commissioner who could exercise power under Section 50-A of the Act of 1950. When proceedings under Section 41-A of the Act of 1950 were pending, Section 50-A came to be amended by Maharashtra Act No.LV of 2017, that came into effect from 10/10/2017. By such amendment this power was conferred on the Assistant or Deputy Charity Commissioner. Thus, on the date when the proceedings were decided on 01/03/2018 the Deputy Charity Commissioner was empowered to exercise jurisdiction under Section 50-A of the Act of
1950. To that extent, the exercise of jurisdiction in that regard cannot be faulted. It is however to be noted that the direction issued in exercise of jurisdiction under Section 50-A is based on the premise that there were only twenty three members in the Trust. This is after recording a finding that the ten members enrolled on 16/05/1999 were valid members. As held above, the issue with regard to legality of membership could not have been gone into under Section 41-A of the Act of 1950. Hence, the basis for the learned Deputy Charity Commissioner to hold that there were only twenty three members of the Trust and thus the necessity to amend the bye-laws is without jurisdiction. According to the Petitioners, about eighteen members were enrolled after 16/05/1999 besides the twenty three members enrolled before 16/05/1999. This aspect is disputed by the respondents. This issue was required to be resolved in appropriate proceedings but definitely not in exercise of jurisdiction under Section 41-A of the Act of 1950. Since it has been found that the only reason for issuing directions under Section 50-A(3) of the Act of 1950 is the finding that there were only twenty three valid members, the direction to seek amendment of the bye-laws of the Trust is not sustainable. This direction having been issued on an incorrect legal and factual premise, the same is liable to be set aside. Consequently, the proceedings initiated in view of the order dated 01/03/2018 would not survive. However, jurisdiction under Section 50-A can be exercised if the situation so requires in the future. 9] Insofar as challenge to the order passed under Section 73-A of the Act of 1950 dated 07/02/2019 raised in Writ Petition No.4116 of 2019 is concerned, the same would now not survive since the direction to initiate proceedings under Section 50-A has been set aside as being one being issued contrary to law. The challenge to the order dated 07/02/2019 is thus rendered infructuous. 10] As a sequel to the aforesaid discussion, the following order is passed:-
(i) The order dated 01/03/2018 passed by the learned Deputy Charity Commissioner, Kolhapur in Misc. Application No.171 of 2017 to the extent it directs elections of the Society to be conducted is upheld.
(ii) The observations as well as the finding that only those members enrolled prior to 16/05/1999 are eligible to participate in the said elections is set aside. The issue of membership is expressly kept open for being adjudicated in appropriate proceedings.
(iii) The Scheme proceedings initiated pursuant to the directions issued on 01/03/2018 would stand terminated as being non-est in law. Consequently, the order dated 25/07/2019 passed by the learned Deputy Charity Commissioner is set aside as the direction to initiate such proceedings issued on 01/03/2018 by the learned Deputy Charity Commissioner has been set aside. Trust Appeal No.43 of 2019 stands disposed of as infructuous. However, it is clarified that this judgment would not preclude exercise of jurisdiction under Section 50-A of the Act of 1950 in accordance with law. 11] Rule in all the above writ petitions is disposed of with the aforesaid directions. Pending Interim Applications, if any, are disposed of. 12] At this stage, learned Counsel for the private Respondents seek stay to the operation of the judgment for a period of four weeks. In the facts of the case, the judgment shall operate on expiry of the period of four weeks from the date it is uploaded. [ JITENDRA JAIN, J. ] [ A.S. CHANDURKAR, J.]