Lahudas Sambhaji Karad vs State of Maharashtra and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1992 Supreme(Bom) 390

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
A.A. Halbe, J.
Lahudas Sambhaji Karad.... Petitioner.
Versus
The State of Maharashtra and others.... Respondents.
Writ Petition Nos. 1136 and 1304 of 1992, decided on 24-8-1992.
Advocates appeared :
Mrs. M.A. Kulkarni and A.B. Naik, for petitioner, in W.P. No. 1136.
S.C. Bora, for respondent No. 2 respondent Nos. 5 6, in W.P. Nos. 1136 1304.
Vivek Bhavthankar, for respondent No. 3, in W.P. No. 1136.
V.M. Kendre and U.R. Chavan, for respondents Nos. 6 and 7, respondents Nos. 3 4, W.P. No. 1136.
S.S. Chaudhari and S.C. Bora, for the petitioner, in W.P. No. 1304.

Headnote:Sections 41-A, 41-E and 22-Power of Joint Charity Commissioner to interfere with powers of election to governing councils of public trust under Section 41-A or 41-E-Para meters of Section 41-A.
       The two members on the Board of Jawahar Education Society filed application before the Joint Charity Commissioner under Section 41-A or 41-E of the Act against the President and Election Officer seeking direction to the governing council of the society to appoint election officers afresh and to depend upon the list consisting of only 483 members for purpose of election on the ground that the final list containing enlarged members had been set up by the President and Office-bearers of society only to ensure their success in election. It was, however, contended on behalf of the President that the list of 834 members was authentic and approved at meeting of the governing council. The Joint Charity Commissioner under Sections 41-A and 41-E directed the governing council of society to appoint Election Officers afresh under bye-law 10 of society and further directed the government counsel to rely on the list consisting of 483 members for purposes of elections. He, however, failed to give adequate opportunity to the President to produce the record to prove his case before passing of the order. He also failed to issue notice to the newly enrolled 351 members or at least some of them to find out as to whether the newly added members were really enrolled. The directions given by the Joint Charity Commissioner were challenged.
       Held, the order of the Joint Charity Commissioner was liable to be quashed and set aside as he was not competent to investigate the list during the election process as that investigation was clearly beyond the scope of Section 41 -A of the Act.
       If there is negligence in the management of affairs of the society, directions could be issued but the scope of Section 41-A would certainly not cover the interference with the process of election and also interference in respect of the members entitled to vote. They are the disputes which can be corrected by filing changed reports after the elections under Section 22 of the Act. The Joint Charity Commissioner should not have entertained the application of the two members of the Board. They had the remedy to approach the Assistant Charity Commissioner questioning the change report. Merely because no further action was likely to be taken on the party of the society or others to challenge the voters list, the Charity Commissioner did not acquire any powers to look into these affairs and rectify them by virtually stalling the election.
       The order of the Joint Charity Commissioner was also vitiated on account of his inaction to issue notices to at least some of the newly added members as they would be the persons affected and were entitled to notice and hearing. The circumstances on record also indicated that the list of 834 members was an authentic list and the Joint Charity Commissioner was not justified in not giving an adequate opportunity to the President to produce the record of the society for demonstrating that the list of 834 members was not bogus.

JUDGMENT - A.A. HALBE, J. :---In both these writ petitions, the judgment of the Joint Charity Commissioner, passed in Application No. 3/1992, has been impugned on the ground that under section 41-A of the Bombay Public Trusts Act, 1950, the Joint Charity Commissioner has no powers to interfere with the process of election to the Governing Council of the public trust, set in motion on the grounds stated in his order dated 14-5-1992 in Appln. No. 3/1992 and hence both these writ petitions are disposed of by the common judgment. The question posed is what are the parameters of section 41-A of the said Act. Section 41-A reads as under :

"Sec. 41-A :---(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)."

2. In the above judgment, intervening in the elections, the learned Joint Charity Commissioner under sections 41-A and 41-B of the Bombay Public Trusts Act, 1950 directed the Governing Council of Jawahar Education Society, Parli Vaijinath to appoint freshly Election Officers under bye-law No. 10 of the society and further directed the said Governing Council to depend on the list consisting of 483 members for the purpose of the election to the Governing Council. This has been challenged in both the writ petitions on the ground that under the above provisions of the Bombay Public Trusts Act, the Joint Charity Commissioner has no power whatsoever to interfere in the affairs relating to the membership and election of the Governing Council to the society and further that the President and the Election Officers of the said society are competent to hold election on the basis of the list containing 834 members mentioned in the list published on 16-4-1992.

3. As against this, the respondents in both the writ petitions have commonly urged that when the list of 483 members was published for the purpose of elections to the Governing Council, the final list containing enlarged members of 834 has been set up by the President and the office bearers of the society only with a view to ensure their success in election to the Governing Council. That list contained bogus members and that the story of enrolment of fresh members raising the membership from 483 to 834 is a fabricated measure not supported by any substantial evidence and hence the directions given by the Joint Charity Commissioner in the above proceedings should be confirmed. By way of analogy, it is also contended that by decision in Writ Petition No. 3878/1991 decided on 17-2-1992, the power of the joint Charity Commissioner to direct the management to hold elections of the said society has virtually closed this issue and this question can not be gone into afresh under the doctrine of res judiciata.

4. In order to appreciate rival contentions, it is imperative to mention all the relevant facts which have given rise to this litigation. Jawahar Education Society, Parali Vaijinath is a registered society duly registered under the Societies Registration Act, 1860 and a public trust duly registered under the Bombay Public Trusts Act, 1950 at Serial No. F-115 (Beed). The bye-laws of this society provide for election to the Governing Council comprised of 31 elected members and 5 nominated members. The election to the Governing Council lastly took place on 22-7-1986 and the bye-laws of this society provide for the tenure of three years to the Governing Council, acc

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