2011(1) ALL MR 679
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

S.S. SHINDE, J.

Rajaram S/O. Vithoba Kadam & Ors.Vs.The Joint Charity Commissioner, Latur & Ors.

Writ Petition No.9165 of 2010

1st December, 2010

Petitioner Counsel: Mr. V. D. SALUNKE
Respondent Counsel: Mr. K. J. GHUTE-PATIL

Bombay Public Trusts Act (1950) , S.41D(3) - Constitution of India, Art.226 - Order passed by Joint Charity Commissioner - Challenge to - Order passed by Joint Charity Commissioner without application of mind and without following principles of natural justice - Order, held, deserves to be set aside. (Para 9)

JUDGMENT

JUDGMENT :- Heard Counsel for the parties, Rule. Rule made returnable forthwith. By consent matter is taken up for final hearing.

2. This Writ Petition takes exception to the order dated 11th September, 2009, passed by the learned Joint Charity Commissioner, Latur region, Latur.

The brief facts of the case as disclosed are as under :-

3. The petitioners are the members and trustees of Shri Sant Kabir Bahu-Udeshiya Shikshan Prasarak Mandal, Sirol (Va), Tq.-Nilanga, Dist.-Latur. The said Trust is registered as educational trust.

Earlier in the year 2005 elections of the trust were held. The said elections were held for one term which is of three years. Though the Committee was elected but two groups had filed change reports bearing Nos.494 of 2005 and 558 of 2005. The dispute between the parties came up before this Court in Writ Petition No.4969 of 2007. This Court directed the petitioners and the respondent No.3 that they should remain present before the Deputy Charity Commissioner, Latur region, Latur on 18th February, 2008. The Deputy Charity Commissioner, Latur region, Latur was directed to decide both the change reports within two months. The respondent No.2, as per the directions of this Court pleased to decide the change reports by order dated 14th February, 2008, thereby rejected both the change reports. In the said order, it was held that there are 36 members of the trust. The Inspector from the office of respondent No.2 was appointed to held the elections of the trust after the appeal period is over. Accordingly, Returning Officer conducted the election and same were completed/held on 19th August, 2008. In the said election Petitioner No.2 was elected as Secretary, Petitioner No.3 was elected as Joint Secretary, and petitioner No.4 as Treasurer. Whereas other petitioners are elected as members of the committee. Accordingly, change report No.578 of 2008 was submitted under the prescribed schedule.

4. The said change report No.578 of 2008 is pending before the authority. However, both the applicants in the earlier change reorts i.e. 498 of 2005 and 578 of 2005 did file appeal Nos.15 of 2008 and 29 of 2008 before the Joint Charity Commissioner, Latur region, Latur. However, both the appeals were rejected by common Judgment and order dated 11th September, 2009. However, the respondent No.1 herein i.e. Joint Charity Commissioner, Latur region, Latur issued directions to the Deputy Charity Commissioner, Latur region, Latur to issue publication inviting applications for membership and other directions are also given by the respondent No.1 herein. The said order is challenged in this Writ Petition.

5. This Writ Petition was heard before this Court on 5th October, 2010, when this Court was pleased to issue notices to the respondents. In pursuance to the notices issued to the respondents. The learned A.G.P. Mr. K. J. Ghute Patil, appeared on behalf of respondent Nos.1 & 2. This Court granted ad-interim relief in terms of prayer clause 'B', Today the matter is taken up for hearing, after service on the respondents is complete. However, inspite of service none appears for the respondent No.3.

6. The Counsel appearing for the petitioner submitted that the order passed by the respondent No.1 has traveled beyond the prayers and pleadings in the appeal. The learned Counsel further submitted that the various directions given by the respondent No.1 are while dismissing the appeals, and such order is impermissible under law. It is further submitted that in pending appeals the Joint Charity Commissioner, Latur region, Latur has given sweeping directions, thereby affecting substantial rights of the 36 members of the trust and also elected members of the trust. They were neither joined as a party or no notices were issued to them. Therefore, learned Counsel would submit that such order is impermissible in law. The learned Counsel appearing for the petitioners invited my attention to the pleadings and grounds taken in the petition and annexures thereto and submitted that the impugned Judgment and order deserves to be quashed and set aside.

7. On the other hand, the learned A.G.P. appearing for the State submitted that the directions issued by the respondent No.1 i.e. Joint Charity Commissioner, Latur region, Latur are keeping in mind the interest of the trust, and therefore, no any infirmity can be attributed to the order passed by the learned Joint Charity Commissioner, Latur region, Latur.

8. I have given due consideration to the rival submissions and I have carefully gone through the pleading in the petition and annexures thereto, I am of the considered opinion that the impugned Judgment and Order passed by the Joint Charity Commissioner, Latur region, Latur i.e. respondent No.1, not only suffers from non application of mind, but said order is passed utter disregard and in violation of the principles of natural justice. The Joint Charity Commissioner, Latur region, Latur, while issuing the various directions has not taken into consideration that such directions in a dismissed appeals are going to be affected substantially/drastically on the elected members of the trust and also on 36 members of the trust, and therefore, those persons were necessary parties before such order came to be passed. The impugned Judgment and order was passed without hearing to the newly elected members and also 36 members of the trust, is in violation of basic principles of natural justice and such order cannot be sustained even for a moment. It would be appropriate to reproduce here-in-below the operative part of the order passed by the Joint Charity Commissioner, Latur region, Latur.

"I] Appeal Nos.15/08 and 29/08 are dismissed. The order passed by the Lower authority declaring 36 valid members in para No.19 of the Judgment and directions issued by Lower authority to hold election of Managing committee is set aside.

II] Deputy Charity Commissioner, Latur is directed to induct categorywise members of the trust as per bylaws. He can issue public notice before the date of induction of new members at the expenses of trust.

III] Deputy Charity Commissioner, Latur is directed to complete induction of members within one month from the date of this order.

IV] After induction of members the Deputy Charity Commissioner, Latur is directed to hold election of managing committee, in accordance with bylaws of the trust, within a period of 3 months from the date of this order.

V] The managing committee of the Trust on record is directed to deposit Rs.20,000/- out of trust fund towards expenses of process of induction of members and election of managing committee within 15 days from the date of order.

VI] Copy of this order be kept in file of Appeal No.29 of 2008."

9. Mere perusal of the operative part of the order passed by the Respondent No.1 would show that the Appeal No.15 of 2008 and 29 of 2008 are dismissed, and in such a dismissed appeals various directions are given from clause No.(II) to clause No.(VI). Such drastic directions are given without thinking that those directions will substantially affect the rights of the parties, including the newly elected members of the trust and also 36 members of the trust. Therefore, before passing such order, the Joint Charity Commissioner, Latur region, Latur should have directed the appellants to add the 36 members of the trust as party respondents in pending proceedings. It is not in dispute that the elections of the trust have held under the control of returning officer who was appointed by Deputy Charity Commissioner, Latur region, Latur. It is not also in dispute that in earlier round of litigation the parties approached to this Court and this Court directed Deputy Charity Commissioner, Latur region, Latur to hear both the parties on change reports submitted by them and take appropriate decision. In pursuance to the said directions the Deputy Charity Commissioner, Latur region, Latur, rejected the change reports and submitted by the respective parties and appointed returning officer i.e. Inspector from his office to conduct the election of the said trust, and accordingly, the said elections have been held and change report in that respect is pending before the authority. Therefore, in my considered opinion, the order passed by the Joint Charity Commissioner, Latur region, Latur is without application of mind and without following the principles of natural justice, and said order deserves to be set aside.

10. In the result, the impugned order dated 11th September, 2009 passed by the Joint Charity Commissioner, Latur region, Latur is quashed and set aside. However, the concerned authority before whom the change report No.578 of 2008 is pending is directed to take a decision about the said change report expeditiously. The Writ Petitions stand allowed in terms of prayer clause 'B'. Rule is made absolute in above terms. The petition is partly allowed and disposed of. In view of the disposal of the Writ Petition, the Civil Application if any is disposed of accordingly.

Petition partly allowed.