Writ Petition No. 2140 of 2018

25th March 2019

Petitioner Counsel: Mr. P.S. Patil
Respondent Counsel: Mr. Raheel A.J. Mirza Mr. S.M. Vaishnav

Cases Cited :
Paras 7, 14: Vidarbha Youth Welfare Society, Amravati and others Vs. Sandip Ram Meghe and others, reported at 2016(5) Mh.L.J. 711
Paras 7, 13: Krushnarao Kanhaiya Naidu and others Vs. Jeevraj Bhairavlal Agrawal and others, reported at 2010(2) Mh.L.J. 31
Paras 7, 13: Sandeep Ram Meghe and others Vs. Pundlikrao Balaji Gohad (dead) and others, reported at 2013(4) Mh.L.J. 703
Paras 7, 13: Abdul Sattar Sher Mohammad Qureshi and others Vs. Haji Mustaq Ahmad Sher Mohd and others, reported at 2009(1) Mh.L.J. 411

JUDGEMENT

Rule. Rule returnable forthwith. Heard finally by consent of the learned counsel appearing for the parties.

2. By this Writ Petition, the petitioners have challenged judgment and order dated 21-02-2018, passed by the Joint Charity Commissioner, Amravati in Appeal No.46 of 2016, whereby appeal filed by respondent no.3 (Reporting Trustee) along with another stood rejected. The said appellate authority further directed that 11 founder members of the trust i.e. Talha Education and Welfare Society Karajgaon shall hold elections for the Executive Committee as per the provisions of the constitution of the trust. It is undisputed that a challenge raised by respondent no.2 to the very same impugned order stood repulsed on the ground that election in pursuance of the impugned judgment and order was conducted by the 11 founder members and that change report regarding the same was filed and it is pending before the Assistant Charity Commissioner.

3. The respondent no.2 claiming to be reporting trustee for an election to the Executive Committee allegedly held in November, 2009 had filed a change report under Section 22 of the Maharashtra Public Trusts Act, 1950, claiming that the petitioners and others had been inducted as members of the trust and that only two of the original founder members i.e. respondent no.2 and his wife along with the said new members had participated in the election leading to change in the trust which was required to be approved. By judgment and order dated 21-12-2015, the Assistant Charity Commissioner, Amravati, rejected the Change Report, inter alia, finding that the reporting trustee i.e. respondent no.2 had failed to produce any material to demonstrate that new members, including the petitioners herein, were inducted in the trust prior to the election that was held in November, 2009. On recording a finding against the alleged change submitted by respondent no.2, the said Change Report stood rejected.

4. Aggrieved by the same, respondent no.2 and his wife, also claiming to be an office bearer pursuant to the said election held in November, 2009, filed Appeal No.46 of 2016, before the Joint Charity Commissioner, Amravati. In this appeal, it was contended that the Assistant Charity Commissioner had committed an error in ignoring the fact that the petitioners and some others had been inducted as the members of the trust and that the Change Report had been wrongly rejected. By impugned judgment order dated 21-02-018, the Joint Charity Commissioner (appellate Authority) dismissed the appeal. While doing so, the Appellate Authority also categorically found that the reporting trustee had not only failed to produce any material before the Assistant Charity Commissioner regarding the petitioners and others being inducted as members in terms of the constitution of the trust, but even before the appellate authority the respondent no.2-reporting trustee had failed to produce any such material. Thereafter, upon considering the merits of the matter, the appellate authority found that there was no substance in the appeal and thereby dismissed the appeal and also gave a consequent direction to the 11 founder members of the trust to hold elections to the Executive Committee in terms of the Constitution of the trust. As noted above such elections were indeed conducted, in respect of which a Change Report was filed and it is pending for consideration before the Assistant Charity Commissioner.

5. The main ground raised in the present appeal on behalf of the petitioners is that when the impugned orders passed by the Assistant Charity Commissioner and the Joint Charity Commissioner had an adverse effect on them, inasmuch as they were held not to be the members of the said trust, they were entitled to be heard and that if such hearing had been granted, they would have placed material on record to demonstrate that they had been inducted as members of the trust and that the order passed by the Assistant Charity Commissioner rejecting the Change Report could have been demonstrated to be erroneous. In support of their contentions, for the first time before this Court, the petitioners appeared and placed on record certain documents, claiming that they had submitted applications in February, 2009, for being inducted as members of the trust along with receipts showing that they had indeed deposited the membership fee as per the constitution and bye-laws of the trust. In this context, reliance was placed on Clause 5 of the bye-laws of the trust to contend that when such membership fee had not been refunded to them, they had to be treated as members and that therefore, the impugned order deserved to be set aside or at least an enquiry was required to be conducted regarding the aforesaid question of their membership of the trust.

6. The Reporting Trustee i.e. respondent no.2 supported the aforesaid contentions raised on behalf of the petitioners while respondent no.3 vehemently opposed the same, pointing out that even as per the clause of the bye-laws on which reliance was placed by the petitioners, it was evident that they were never inducted as members. It was submitted that the Assistant Charity Commissioner, while considering the Change Report pertaining to alleged elections of the trust, was certainly entitled to enquire into the question as to whether the electoral roll was valid or not. In such an enquiry the Assistant Charity Commissioner was certainly entitled to render findings as rendered by the Assistant Charity Commissioner in the present case. It was submitted that when the petitioners were never inducted as members of the trust, there was no question of their right to be heard.

7. In support of rival contentions, the learned Counsel appearing for the parties placed reliance on the judgments of this Court. The learned Counsel appearing for the petitioners relied upon judgment of this Court in the case of Vidarbha Youth Welfare Society, Amravati and others vs Sandip Ram Meghe and others, reported at 2016(5) Mh.L.J. 711, while the learned Counsel appearing for the respondent no.3 relied on judgment in the case of Krushnarao Kanhaiya Naidu and others vs Jeevraj Bhairavlal Agrawal and others, reported at 2010(2) Mh.L.J. 31, Sandeep Ram Meghe and others vs Pundlikrao Balaji Gohad (dead) and others, reported at 2013(4) Mh.L.J. 703, Abdul Sattar Sher Mohammad Qureshi and others vs Haji Mustaq Ahmad Sher Mohd and others, reported at 2009(1) Mh.L.J. 411

8. Heard Counsel for the parties and perused the record. In the present case, the petitioners have contended that they had right to be heard by the authorities below, because the effect of the impugned orders was such that they were held to be not members of the aforesaid trust and that the same was clearly adverse to their interest. It was submitted that the principles of natural justice required the petitioners to be heard and opportunity to be granted to them to show that they were inducted as members of the trust and that they had participated in the elections regarding which change had been reported by respondent no.2 .

9. A perusal of the impugned orders passed by the authorities below shows that the proceedings were initiated at the behest of respondent no.2 i.e. reporting trustee pertaining to an election allegedly held in November, 2009, wherein the petitioners had participated as members. Therefore, respondent no.2-Reporting Trustee approached the Assistant Charity Commissioner and proceeded on the basis that the petitioners and others were newly inducted members who had participated in the elections held in November, 2009. In this context, the Assistant Charity Commissioner went into the question regarding the claim of respondent no.2-reporting trustee about the induction of the petitioners as members of the trust. Upon taking into consideration the material on record, the Assistant Charity Commissioner rendered findings as follows :-
“14. It is pertinent to note that the requisitions for calling meetings were given by the alleged newly enrolled members. From the record it appears that at the time of inception of the said society there were only eleven members as well as office/bearers. So far as enrollment of the new 25 members are concerned Ld Adv. Shri Pathak for reporting trustee, during argument fairly submitted that he has not filed any documents in respect of enrollment of 25 new members. From the minutes of meeting dt. 8.11.2009 Exh.37 it appears that names of 36 members are written, out of these 36 members 9 members are shown absent. Needless to mention here that these nine members are recorded members/office bearers of the said society. So far as the newly enrolled members are concerned as admitted by Ld. Adv. Shri Pathak for reporting trustee he has not filed any documents on record like their applications for membership, receipts of subscription amount, minutes of meeting, regarding approval of their membership etc. Therefore, due to want of these documents it cannot be considered that (except recorded members) the other newly elected members are properly enrolled according to the bye laws of the said society. Therefore the meetings held by the reporting trustee on the basis of requisitions given by such members & the meeting held in presence of such members is itself not legal & valid.”

10. Thus, it is evident that respondent no.2-Reporting Trustee failed to place on record any material regarding the claim that the petitioners and others had been inducted as members of the trust. Similarly, in the impugned judgment and order dated 21-02-2018, the Joint Charity Commissioner (appellate Authority) recorded as follows :
“10. In the cross examination, reporting trustee admitted that, out of 25 persons who were present in the meeting dated 08-11-2009, except the appellant all other were newly enrolled members. The reporting trustee did not produce any evidence on record in respect of enrollment of those 23 members. Even in this appeal he has not produced any such document. In his evidence the reporting trustee nowhere stated that, when those persons were enrolled as members of the trust. Those persons who were not members of the trust attended the said meeting dated 08-11-2009, even some of them were elected as members of the executive committee. Under these circumstances, the said decision of election of new executive committee cannot be said to be legal and valid decision.”

11. Thus, before both the authorities below, there was no material on record to support the claim that the petitioners and some others were inducted as members of the trust. It is relevant that the petitioners herein claimed to be members of the trust and that they were concerned about the election of the trust, yet they have approached this Court for the first time after the two authorities below have rendered adverse findings on the claim made by the Reporting Trustee i.e respondent no.2 about they having been inducted as members and having participated in election held in November, 2009. While approaching this Court, the petitioners for the first time have sought to file certain documents purportedly being the applications for membership submitted by them in November, 2009 and receipts regarding membership fee deposited by them. It is interesting that the said receipts were issued by respondent no.2 himself who was clearly an interested party. Present proceeding, insofar as the claim of the petitioners and others having been inducted as members of the trust, is based on the said receipts and documents. The learned Counsel appearing for the petitioners has placed much emphasis on Clause 5 of the bye laws of the trust. It is claimed that a perusal of Clause 5 of the bye laws would show that as the membership fee deposited by the petitioners was not refunded to them, they continued to be the members of the trust.

12. In this regard, it would be relevant to refer to Clause 5 of the bye-laws. Translation of which reads as follows :-
“Procedure of registration and enrollment of Members :
1] Any person who is beyond 18 years of age and is a India citizen can become member of Trust.
2] The application can be submitted to the Secretary or President of the Society.
3] The applications preferred will be considered as per bye-laws and after depositing necessary fees, the person will be enrolled as member and his name will be incorporated in the list of members. The person shall be deemed to be enrolled as a member only on resolution being passed by executive committee by majority.
4] It will be a discretion of executive Committee to accept or reject the application, if application is rejected, the subscription fee shall be refunded.
5] The applicant preferring enrollment application must be a member of Sunni, Hanifi, Bareleni community.”

13. Sub-clauses 3 and 4 of the above quoted Clause 5 of the bye laws of the trust are relevant. It is clear from Sub-clause 4 thereof that the Executive Committee by majority would approve the application for membership and thereupon an applicant would be inducted as member of the trust. As noted above, the Reporting Trustee i.e. respondent no.2 failed to produce any material on record before the authorities below as regards alleged membership of the petitioners, much less any documents pertaining to approval of the applications for membership by majority of the members of the Executive Committee. The documents produced for the first time by the petitioners herein are insufficient for this Court to give any opinion whether they were inducted as members. In fact, even before this Court the Reporting Trustee, who was very much an interested party, has not made any effort to produce any such relevant material showing that the petitioners were indeed accepted as members of the trust. Therefore, it is a moot question whether such persons could be heard in writ jurisdiction by this Court when they failed to appear either before the Assistant Charity Commissioner or before the Joint Charity Commissioner (appellate Authority) to show their concern of being members of the trust and the alleged injustice suffered by them. In this regard, the learned Counsel appearing for contesting respondent no.3 is justified in relying upon judgment of this Court in the case of Abdul Sattar Sher Mohammad Qureshi and others vs Haji Mustaq Ahmad Sher Mohd and others (supra), wherein it has been held that mere deposit of the amount of membership fee or subscription could not be said to be sufficient material to hold that a person was inducted as a member of the trust, in the absence of any material to show that the applicant was indeed inducted as a valid member of the trust. Reliance placed on the judgment of this Court in the case of Krushnarao Kanhaiya Naidu and others vs Jeevraj Bhairavlal Agrawal and others (supra) is also relevant, because it is categorically held by this Court while considering a Change Report under Section 22 of the aforesaid Act that the Assistant Charity Commissioner is well within its authority to take into consideration the claim made by the Reporting Trustee about enrollment of new members of the trust, because purity of the electoral roll and the process of election goes to the very root of the matter. The learned Counsel appearing for respondent no.3 is also justified in relying upon the judgment of this Court in the case of Sandeep Ram Meghe and others vs Pundlikrao Balaji Gohad (dead) and others (supra), wherein it has been held that it would not be necessary for the persons claiming to be newly inducted members of the trust to be made parties in the proceedings initiated by the reporting trustee under Section 22 of the aforesaid Act, if it becomes clear that there was total absence of any material to support the claim of such persons of being inducted a members of the trust. It has been held that simply because such persons are not made parties to the proceedings before the authorities below, it cannot be said that the proceedings have been vitiated.

14. The reliance placed by learned Counsel for the petitioners on the judgment in the case of Vidarbha Youth Welfare Society, Amravati and others vs Sandip Ram Meghe and others (supra) is misplaced. In that case, the question before the Court was that the removal of persons from membership of a trust and therefore on facts it was a case that was distinguishable.

15. In any case, this Court is of the opinion that the petitioners in the present case were kept sitting on the fence either by respondent no.2 or they themselves chose to do so to subsequently invoke writ jurisdiction of this Court by claiming violation of principles of natural justice. The approach of the petitioners clearly seems to be to rely upon alleged violation of principles of natural justice as a mantra or incantation, upon the recital of which this Court in writ jurisdiction would set aside the orders passed by the Courts below for giving them an opportunity to set the clock back and keep the litigation festering. The petitioners cannot be permitted to do so. In any case, this Court has heard the petitioners on the material that they came to rely upon in the context of bye laws of the trust. Upon interpretation of Clause 5 of the said bye laws, it cannot be said that they were members of the trust and their rights stood violated by the authorities below by passing the impugned orders.

16. As noted above, the impugned order passed by the Joint Charity Commissioner was made subject matter of challenge by the Reporting Trustee i.e. respondent no.2 by filing Writ Petition before this Court, which has been already disposed of on the ground that the direction given by the Charity Commissioner in the impugned order of holding elections by 11 founder members in terms of the constitution of the trust has already taken place and a Change Report regarding the same has been filed before the Assistant Charity Commissioner, which is pending consideration.

17. In view of the above, this Court finds that there is no merit in the present case and accordingly it is dismissed.

18. Rule stands discharged in above terms. No costs.