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In the High Court of Bombay at Nagpur
M.L. TAHALIYANI, J.
Sandeep Ram Meghe & Others
Versus
Pundlikrao Balaji Gohad (Dead) & Others
Second Appeal No.408 of 2012 With Second Appeal No.415 of 2012
Decided on: 10-06-2013
Bombay Public Trust Act, 1950 - Section 22 - Nature of enquiry under. - Held, an enquiry under Section 22 of Act is judicial inquiry and not formal inquiry only to record changes in schedule. An inquiry under Section 22 of the Bombay Public Trusts Act, 1950 is judicial inquiry and is not formal inquiry only to record changes in the schedule. The Enquiry Officer, in fact, is under obligation to examine whether the members of the executive council whose names are to be recorded in the schedule are validly elected or not. It is incumbent on the part of the Enquiry Officer to hold a full-fledged enquiry which may in a given case include examination of validity or otherwise of the electoral roll.
If such procedure is not adopted by the Enquiry Officer, the very purpose of existence of Section 22 in the Act will be frustrated. In the absence of such extensive power to the Enquiry Officer, the provisions of Section 22 of the Act will be meaningless. Since the enquiry under Section 22 of the Act is judicial enquiry, it follows that it is not to be conducted in a clerical manner. Therefore, the Joint Charity Commissioner and the District Judge have not committed any error of law and jurisdiction in deciding the issue of membership of 49 members inducted in the trust.
Bombay Public Trust Act, 1950 - Section 41-A - Powers of Caretaker Executive Council. - Held, period during which Caretaker Executive Council is in office, is only for purpose of taking care of property of trust and its day to day affairs. The executive council whose term has expired cannot remain in office. Such executive council remains in office only by way of necessity. As such, the period, during which the executive council is in office by way of necessity is obviously only for the purpose of taking care of the property of the trust and its day to day affairs. In the present case, the executive council after the expiry of its term could not have inducted 49 members.
The executive council after expiry of the term was purely caretaker/Advocate Appeared :-hoc body and could not have taken a policy decision particularly serious decision like induction of 49 members which could change the whole fabric of the general body and could influence the result of elections to a large extent.
Constitution of India - Articles 14, 16, 21 and 226 - Refusal of Issurance of Mark- sheet. - Where petitioner was admitted to B.E. course on 8.9.2002 therefore refusal to issue mark-sheet and passing certificate on ground that as per circular dated 24.9.2002 petitioner not completed course with in 8 years, not proper. - Respondent Nos. 2 and 3 have refused to issue the petitioner the mark-sheet and passing certificate of the B.E.Course in view of the following provision which is a part of Ordinance 3702 issued by respondent No. 1 by the said Circular dated 24th September 2002 :
"A candidate who has been admitted to the first year of B.E. degree course has to complete the course of degree of Bachelor of Engineering (B.E.) within 8 years from the date of his/her enrollment otherwise he/she has to enroll as fresh candidate for the first year as ex-student."
The petitioner was admitted to the said course on 8th September 2002 and completed the same in December 2011. He, thus, took more than eight years to complete the course. The Circular dated 24th September 2002, however, cannot apply to the petitioner as he obtained admission prior thereto namely on 8th September 2002. In fact, as noted above, he had obtained admission in Parshwanath College in round 1A on 24th July, 2002.
1. These two second appeals impugn the judgment and order passed by District Judge1, Amravati while disposing of Misc. Civil Application Nos. 21 of 2012 and 40 of 2012 by common judgment and order dated 22nd June, 2012. Said two Misc. Civil Applications arose out of a common judgment and order dated 13th December, 2011 passed by learned Joint Charity Commissioner in Appeal Nos. 3 of 2010 and 4 of 2010. Appeal No. 3 of 2010 and 4 of 2010 had arisen out of the order passed by Deputy Charity Commissioner, Amravati in Enquiry No.135 of 2007 under Section 22 of the Bombay Public Trusts Act, 1950.
2. The said enquiry under Section 22 of the Bombay Public Trusts Act was initiated on the change report submitted by appellant No.1 Shri Sandeep Ram Meghe in Second Appeal No. 408 of 2012 (hereinafter referred to as “appellant No.1”). The said change report was in respect of the change in the Executive Committee of Vidarbha Youth Welfare Society, Amravati. Vidarbha Youth Welfare Society, Amravati is a public trust registered under the provisions of the Bombay Public Trusts Act, 1950 vide Registration No.F242/Amravati. Elections were held on 3rd December, 2006 and in the result new executive committee was elected. 67 members out of total 78 members had participated in the election meeting held by Election Officer Advocate Mr. Sarda. Appellant No.1, therefore, filed change report. Respondent Nos.1 to 10 and 11 to 15 in two separate groups objected for the change. The learned Deputy Charity Commissioner after hearing both the parties had accepted the change report vide his order dated 7th December, 2009. The objection raised before the Deputy Charity Commissioner by the respondents was that 49 members were inducted in trust clandestinely and illegally in the so called meeting dated 2nd March, 2006 and as such they had not right to participate in the elections held on 3rd December, 2006. The said plea was turned down by the Deputy Charity Commissioner and the change was allowed.
3. The said order of the Deputy Charity Commissioner was challenged before the Joint Charity Commissioner in two separate appeals filed by the respondents being Appeal Nos.3 of 2010 and 4 of 2010. The Appeal No.3 of 2010 was filed by the respondent Nos. 1 to 10 and the appeal No.4 of 2010 was filed by the respondent No.11 to 15 in Second Appeal No.408 of 2012. It was submitted before the Joint Charity Commissioner by the respondents in their appeal Nos. 3 of 2010 and 4 of 2010 referred to above that induction of 49 members in the so called meeting dated 2nd March, 2006 was on basis of forged documents. It was contended that no such meeting was ever held and that the minutes of the meetings dated 2nd March, 2006 and 12th April, 2006 were fabricated inasmuch as backdated resolutions were passed so that the appellants herein who were the respondents before the Joint Charity Commissioner could establish their majority during the course of elections. The learned Joint Charity Commissioner while deciding said two appeals allowed Appeal No. 3 of 2010 and dismissed Appeal No. 4 of 2010. In fact, both the appellants had raised similar issues. However, Appeal No. 4 of 2010 was dismissed mainly on the ground that the appellants therein (Respondent Nos. 11 to 15 in Second Appeal No.408 of 2012) had participated in the said two meetings dated 2nd March, 2006 and 12th April, 2006. The appellants in Appeal No. 4 of 2010 had, however, later on alleged that their signatures were obtained by force.
4. The learned Joint Charity Commissioner held that election dated 3rd December, 2006 was vitiated because of induction of 49 members by caretaker managing body. The term of the managing body elected on 15th December, 2000 had expired after five years and therefore, induction of 49 members in the meeting dated 2nd March, 2006 was found to be invalid. Therefore, Joint Charity Commissioner was of the view that change in the managing body on the basis of such vitiated elections could n
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