2009 Supreme(Bom) 426

IN THE HIGH COURT OF BOMBAY
S. R. Dongaonkar, J.
GRAM VIKAS SAMITTEE, SHAHAPUR - Petitioner
Versus
DARSHANLAL s/o NANDLAL MALHOTRA and others - Respondents
W.P. No. 35 of 2009
Decided on : 26-03-2009

Headnote:

Bombay Public Trusts Act, 1950 - Section 41-A - Powers of Charity Commissioner to issue directions for proper administration of the trust - Scope and extent - Assistant Charity Commissioner cannot direct the appointment of trustees or to enrol members, hold elections and submit change report - Such directions are illegal and liable to be quashed.

Fact of the Case:

Petitioner No. 1 Gram Vikas Samittee Shahapur, District Bhandara, is an educational trust having Registration No. PTR No.F-4(B) under the Bombay Public Trusts Act as well as Societies Registration Act. Last election of the trust was held on 15-4-1999. Thereafter, the change report was submitted bearing No. 340/1990, which was accepted. The names of the elected trustees were recorded in Schedule 1. One of the recorded trustees Shri Nagarikar died, against that vacancy respondent No. 1 was elected as Assistant Secretary. The said change report bearing No. 80/200.1 was accepted on 24-1-2001. As such respondent No. 1 came to be recorded as Assistant Secretary. Some allegations are made against him regarding misappropriation etc. Term of the recorded body was to expire on 14-4-2004 as such Managing Committee passed resolution that election of the Managing Committee trustees should be held by appointing independent Election Officer through Assistant Charity Commissioner, Bhandara. Copy of the said resolution is filed along with petition. Application to that effect was filed before the Assistant Charity Commissioner and the order thereon was passed on 5-32004. Accordingly Advocate Shri Rahangada1e was appointed as Election Officer. It is contended that prior to passing written express order on 5-3-2004, Advocate Shri Rahangada1e was appointed as Election Officer by oral direction during the proceedings. It may be mentioned that said application bearing No. 144/2004 was filed by all the recorded trustees. Said Election Officer then declared his election programme, however, as he was appointed by oral direction; he declared such programme on 1-3-2004 i.e. prior to actual written order passed by Assistant Charity Commissioner on 5-3-2004. According to the petitioners, the Election Officer so appointed held elections on 11-4-2004. Even respondent No.1 participated in that election programme but withdrew his name because there was no majority in his favour. It is contended that on 14-4-2004 the office bearers of the petitioner No. 1 trust out of the members elected to the management committee on 11-4-2004; were elected and on 15-4-2004, they took over the charge of the trust and on 17-4-2004 the change report number 336/2004 was filed before Assistant Charity Commissioner. It is alleged that respondent No.1 raised objection to this change report and filed his separate change report bearing No. 591/2004 before Assistant Charity Commissioner on 14-7-2004, wherein he himself was shown as an Election Officer and shown as elected secretary. It is alleged that he had prepared bogus proceedings of the election of trust dated "15-4-2004 and filed false change report on that basis bearing No.591/2004. Enquiry in these two change reports continued for quite some time. On 25-11-2007 the Secretary of the petitioner No. 1 trust Babanrao Pa1andurkar expired. In his place as per constitution Deputy Secretary, Narendra Pa1andurkar was elected as Secretary and accordingly change report No. 964/2004 was filed. This Narendra Pa1andurkar was arrested by police on 13-4-2008 in a case of one murder. It is alleged that thereafter, respondent No.1 withdrew his change report and so Assistant Charity Commissioner directed the said change report to be decided as suo motu enquiry as per circular of the Charity Commissioner, Maharashtra State. After necessary enquiry, learned Assistant Charity Commissioner passed the impugned order whereby he rejected both change reports filed by petitioners bearing No. 336/2004 as well as suo motu Change Report 147/2004. Change report submitted by respondent No. 1 was already withdrawn. It was further directed by the Assistant Charity Commissioner that respondent No. 1 shall enroll new members within 2 months and conduct elections and file change report as per that election.

Finding of the Court:

The Assistant Charity Commissioner cannot direct the appointment of trustees or to enrol members, hold elections and submit change report under section 41-A of the Act. Any such direction would vitiate, if challenged, for it would be illegal exercise of jurisdiction.

Issues: Whether the Assistant Charity Commissioner can direct the appointment of trustees or to enrol members, hold elections and submit change report under section 41-A of the Act.

Ratio Decidendi: The powers of issuance directions under section 41-A of the Bombay Public Trust Act are quite defined and the said power can be exercised only in the circumstances, referred in the said section and not otherwise. It is difficult to say that the said power can be exercised by the Assistant Charity Commissioner for directing any person to "enrol members, conduct elections and submit the change report".

Final Decision: Clause 3 of the order passed by the Assistant Charity Commissioner is therefore, required to be quashed and set aside with a direction to the Joint Charity Commissioner, before whom the appeal against the order of rejection of change report i.e. other part of the said order is pending to decide the said appeal as early as possible in any case within a period of 3 months from the communication of this order on merits in accordance with law.