The Charity Commissioner has the power to issue directions for the proper administration of a public trust, including directions to hold elections, and that the Charity Commissioner can direct that an election be held by secret ballot.

Headnote:
ELECTION - BOMBAY PUBLIC TRUSTS ACT - SECTION 41-A - ELECTION OF TRUSTEES - SECRET BALLOT - POWER OF CHARITY COMMISSIONER TO ISSUE DIRECTIONS - INTERPRETATION OF SECTION 41-A - SCOPE AND PURPOSE OF THE SECTION - ELECTION PROCEDURE - VALIDITY OF NOMINATIONS - ROLE OF CHARITY COMMISSIONER IN ENSURING FAIR ELECTIONS.
Fact of the Case:

The petitioners, members of the Berar General Education Society, Akola, sought modification of a judgment passed by the Assistant Charity Commissioner, Akola, directing the respondent society to hold elections within three months but rejecting the prayer to hold the election by secret ballot. The petitioners contended that no elections had been held since 1980 and that the respondent society was mismanaged.
Finding of the Court:

The court held that section 41-A of the Bombay Public Trusts Act, 1950, empowers the Charity Commissioner to issue directions to ensure the proper administration of a public trust and to prevent mismanagement. The court found that the respondent society had not held elections for over 12 years, in violation of its own constitution, and that the secretary had been managing the society as a monarch. The court also found that the respondent society's procedure for holding the election, which involved treating nominations filed four years earlier as valid, was illegal.
Issues: 1. Whether the Charity Commissioner has the power to issue directions for the proper administration of a public trust, including directions to hold elections? 2. Whether the Charity Commissioner can direct that an election be held by secret ballot? 3. Whether the respondent society's procedure for holding the election was valid?
Ratio Decidendi: 1. The court held that section 41-A of the Bombay Public Trusts Act, 1950, empowers the Charity Commissioner to issue directions to ensure the proper administration of a public trust and to prevent mismanagement. The court found that the respondent society had not held elections for over 12 years, in violation of its own constitution, and that the secretary had been managing the society as a monarch. The court also found that the respondent society's procedure for holding the election, which involved treating nominations filed four years earlier as valid, was illegal. 2. The court held that the Charity Commissioner has the power to direct that an election be held by secret ballot. The court found that the respondent society had a large number of members, including many employees, and that a secret ballot would ensure a free and fair election.
Final Decision: The court allowed the petition and directed the Assistant Charity Commissioner to hold the election of the society through his representative or agent following the due procedure of elections. The election was to be held before 31st December, 1993, through his agency. The respondent society was directed to extend its active co-operation to the election officer appointed by the Assistant Charity Commissioner, Akola and its staff. The court also directed that the election be held by secret ballot.

JUDGMENT - WAHANE B.U., J.:—By this petition, the petitioners who are the members of the Berar General Education Society, Akola, sought modification to the Judgment dated 22- 7-1993 passed by the Asstt. Charity Commissioner, Akola, in Inquiry No. 346 of 1992 and direction to the Executive Committee of the respondent No. 2 Society, to hold the election by the secret ballot and secondly that the respondent No. 2 Society should hold the election programme afresh and not on the basis of the nominations which were for the election which was proposed to be held on 13th August, 1989.

2. The respondent No. 2 is the Society registered under the Societies Registration Act and also under the Bombay Public Trusts Act. The respondent No. 2 Society is running schools and colleges in Akola District. The grievance of the petitioners is very limited. According to the petitioners, since 1980, no elections are held by the Management of the Society and, therefore, members approached the Assistant Charity Commissioner, Akola, for a direction to the respondent No. 2 to hold the election and that too by secret ballot papers. The learned Assistant Charity Commissioner, Akola, partly allowed the application filed under section 41-A of the Bombay Public Trusts Act, directing the respondent No. 2 to hold the elections within three months from the date of the order. However, the prayer to hold the election by secret ballot, was rejected. Therefore, the petitioners have filed the instant petition.

3. Shri Mohan Deshpande, the learned Counsel for the respondent No. 2, vehemently opposed the submissions of Shri Mehadia, the learned Counsel for the petitioners, on various grounds. Firstly, it is submitted by the learned Counsel for the respondent No. 2 that provisions of section 41- A of the Bombay Public Trusts Act, 1950, does not provide the directions for the election. My attention was drawn to the case of (Lahudas Sambhaji Karad v. State of Maharashtra others)1, 1994(1) Bom.C.R. 103. After going through the judgment of the case cited supra, I am of the opinion that there is no substance in the submissions made by the learned Counsel for the respondent No. 2.

4. Section 41-A is introduced by the Maharashtra Act V of 1985 with effect from 1-8-1985. Amendments made to the Bombay Public Trusts Act, Maharashtra Act V of 1985 provide elaborate provisions regarding the stages that may be taken to prevent the loss in case of mismanagement in the affairs of the Public Trust.

Section 41-A of Bombay Public Trusts Act, 1950, reads as under:

"41-A. Power of Commissioner to issue directions for the proper administration of the trust.—(1) Subject to the provisions of this Act, the Charity Commissioner may from time to time issue directions to any trustee of a public trust or any person connected therewith, to ensure that the trust is properly administered and the income thereof is properly accounted for or duly appropriated and applied to the objects and for the purposes of the trust; and the Charity Commissioner may also give directions to the trustees or such person if he finds that any property of the trust is in danger of being wasted, damaged, alienated or wrongfully sold, removed or disposed of.

(2) It shall be the duty of every trustee or of such person to comply with the directions issued under sub-section (1)."

Prior to the amendment of section 41-A, even if it has been brought to the notice of the Charity Commissioner or if he learnt otherwise that either a public trust is mismanaged or is not managed properly or that the income of the said Trust was not properly accounted for, he was helpless as there was no power conferred upon the Charity Commissioner to prevent any loss being caused to the Public Trust or to prevent any Public Trust being mismanaged or to give any direction to the trustee or any other person connected with the said Trust to administer the said Public Trust in accordance with the object of the said Trust or to see that the income of the Publ

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Judicial Analysis

1993 Supreme(Bom) 484

The Charity Commissioner has the power to issue directions for the proper administration of a public trust, including directions to hold elections, and that the Charity Commissioner can direct that an election be held by secret ballot.

Cases Referred (1)

Judicial Analysis