S.B. Shukre, J.(Oral)—Rule. Rule made returnable forthwith. Heard finally by consent of learned Counsel appearing for the parties.
2. By these writ petitions, the petitioner has challenged the legality and correctness of the order passed by the learned Joint Charity Commissioner on 21.1.2016, thereby rejecting the application for grant of stay to the elections being held to the Rani Durgawati Adiwasi Vikas Sanstha Jogi Sakhara, (in short, "the Society"), in compliance with the order passed by the learned Assistant Charity Commissioner on 31.12.2015.
3. By the order passed on 31.12.2015, the learned Assistant Charity Commissioner rejected three Change Reports, which were the subject matter of inquiry in Inquiry No.245/2011, 374/2011 and Inquiry No.100/2014. The Change Reports in Inquiry No.245/2011 and 374/2011 were in respect of change of address of the society and removal of petitioner No.1 as secretary of the society respectively. The Change Report in inquiry No.100/2014 was relating to induction of a person in place of petitioner No.1 after his removal. These Change Reports were rejected by the order passed on 31.12.2015. The learned Assistant Charity Commissioner, however, having regard to the failure of respondent No.1 to take appropriate steps in the inquiry No.100/2014, also found that fresh elections to the executive committee of the society were necessary and accordingly by the same order dated 31.12.2015 directed fresh elections to be held within 30 days from the date of order. He also declared that the members, whose names were included in the list of members submitted in inquiry No.245/2011, would be eligible to take part in the elections.
4. The learned Joint Charity Commissioner, while entertaining the appeal, preferred against the aforesaid order dated 31.12.2015, held that the petitioner did not take any prompt steps before the Election Officer and even after receiving the copy of the order and considering the fact that the election process was at the fag end found that it would not be proper to grant stay to the elections. Therefore, by the order passed on 21st January, 2016 learned Joint Charity Commissioner rejected the application for grant of stay.
5. It is the contention of the learned counsel for the petitioner that the impugned order is illegal as it does not take into account the fact that the order dated 31.12.2015, which has been challenged in the appeal has been passed without any jurisdiction. He submits that there is a specific direction given by the learned Assistant Charity Commissioner for allowing those members to take part in the elections, whose names were submitted in the inquiry No.245/2011. He submits that this direction could not have been issued when the said list of members is in dispute and there is another list of members, which in the opinion of the petitioner is correct and, therefore, the participation in the elections could not have been restricted to only those members, whose names were mentioned in the list of members filed along with Change Report vide inquiry No.245/2011 and this is what makes the said order as beyond jurisdiction.
6. Learned counsel for the petitioner further submits that the whole foundation of the order dated 31.12.2015 is that there has been no compliance by the petitioner with the earlier order of the Assistant Charity Commissioner dated 15.6.2010, which is wrong. He submits that by the order passed on 15.6.2010, a direction was issued to the executive committee for holding of the election within 3 months from the date of order and in pursuance of this direction, the election was held and Change Reports being inquiry No.509/2010 as well as inquiry No.454/2010 were filed respectively by the respondent No.2 and the petitioner and which are still pending. Thus, he submits that when the election was held in compliance with the said direction, there was no reason for the Assistant Charity Commissioner to make an observation that the election was not held. Learned counsel further submits that if the present election is allowed to be held, the appeal filed by the petitioner would become infructuous inasmuch as great prejudice would be caused to them as only those members, who are belonging to the group of respondents would be allowed to take part in the election process and those members belonging to the group of the petitioner, in spite of being eligible to vote, would not be allowed to take part in the election process. He also submits that this will all lead to complications and multiplicity of proceedings and, therefore, it is in the interest of justice that stay is granted to the election being held. Learned counsel for the petitioner further submits that there has been violation of principles of natural justice while passing the order dated 31.12.2015 by the learned Assistant Charity Commissioner.
7. Mr. R.L. Khapre, learned counsel for respondent No.2 submits that the impugned order is legal and correct and requires no interference. He submits that the election was held in the year 2010 in compliance with the order of the Assistant Charity Commissioner passed on 15.6.2010 and the Change Report in inquiry No.509/2010 was also filed and that Change Report is presently pending. In respect of same election even the petitioner has filed another Change Report being inquiry No.454/2010, submits the learned counsel for the respondent No.2. Learned counsel further submits that both these Change Reports are pending for adjudication and are yet to be decided by the learned Assistant Charity Commissioner. Since the period of the executive committee which was elected in the said election was already over, the learned Assistant Charity Commissioner by the order passed on 31.12.2015, by way of an administrative direction, ordered that fresh election be held so that there is no vacuum in the management of the society. This direction having been issued in the interest of affairs of the society and being an administrative order, there was no need for the Assistant Charity Commissioner to give any hearing to the petitioner. He submits that the Change Reports in inquiry Nos.374/2011 and 100/2014, if accepted, would have resulted in bringing adverse consequences for the petitioner. However, both these Change Reports were rejected and thus the order dated 31.12.2015 effectively was in favour of the petitioner, learned counsel for respondent No.2 so submits. He also submits that in the Change Report in inquiry No.245/2011, the petitioner was not party and the direction for holding of elections could be said to be passed in the inquiry No.245/2011.
8. Learned counsel for the respondent No.2 further submits that once it is found that the order dated 15.6.2010 was complied with after holding of the election, the direction issued for holding of fresh election after the period of executive committee elected in 2010 elections was over, cannot be said to be illegal or improper, rather such an order would have to be upheld in the best interest of affairs of the society. He also submits that the learned Assistant Charity Commissioner may have observed that the order dated 15.6.2010 has not been complied with, but erroneous observation of the Court would not by itself render the final conclusion as also erroneous, if final conclusion is found to be consistent with the overall facts on record of the case and legal principles applicable to the facts of that case. On these grounds, he submits that there is no substance in the petition and it deserves to be rejected.
9. Learned Assistant Government Pleader submits that appropriate order be passed.
10. The impugned order dated 21st January, 2016 will have to be read together with the order dated 31.12.2015 passed by the Assistant Charity Commissioner directing holding of election amongst the members, whose names were appearing in the list submitted in inquiry No.245/2011. By the impugned order dated 21st January, 2016, the learned Joint Charity Commissioner has upheld the order passed by the learned Assistant Charity Commissioner directing holding of election. Basically, the order directing holding of election has been passed by resorting to powers of the Charity Commissioner under Section 41A of the Maharashtra Public Trusts Act. It is an administrative direction and therefore it would have to be seen whether by passing of such a direction, the interest of the society is going to be served or suppressed. If ultimately, the interests of the society are going to be enhanced, the Court would not be within its power to make any interference with such an order. Reason being that the management of the society would come to a standstill just because there are two factions in the society which are fighting with each other and which are refusing to acknowledge the other faction as the one that would be entitled to have the charge of and control over the affairs of the society. In such a dispute, the first duty of the Court would be to ensure that the interests of the society are protected, and this is what the said order, prima facie, achieves here. For this reason, I find that even though the order dated 31.12.2015 has been passed without hearing the petitioner, it could not be seen as illegal. It would then follow that the observation that order dated 15.2.2010 has not been complied with, made wrongly, would also be of no consequence as ultimately the order does not smack of any apparent illegality.
11. In the instant case, the term of executive committee elected in the year 2010 is admittedly over. Therefore, one or the other executive committee has to take over or otherwise there would be vaccum in the management of the society. To avoid this situation the Assistant Charity Commissioner has to take such steps as are permissible in law. Issuance of a direction to hold election is one of the steps permissible under the law. This step has been taken in the instant case and apparently it is taken in the best interest of the society. Such an order as passed on 31.12.2015 by learned Assistant Charity Commissioner, therefore could not have been stayed, during pendency of the appeal. If, on merits, it is found that the order dated 31.12.2015 is perverse or absolutely illegal, all consequential orders can be passed and, therefore, there is no question of the appeal getting infructuous or cropping of complications or giving birth to multiple proceedings.
12. In the case of Vanmala Manoharrao Kamdi and others v. Deputy Charity Commissioner, Nagpur and others, reported in 2012(3) Mh.L.J. 594, the Division Bench of this Court held that when an administrative order is passed which is in the interest of the society or the Trust, there could be occasions, which would not necessitate grant of any hearing to the trust or its members. The Division Bench held that in such cases, most of the time the satisfaction is subjective and, therefore, hearing before making any order may not be possible in each case. In the case of Dattatraya s/o. Mahadeo Hiware and others v. Arjun s/o. Sambhaji Shinde and others, reported in 2007(1) Mh.L.J. 48, learned Single Judge of this Court held that the Charity Commissioner is empowered to issue directions under Section 41A of the said Act for ensuring proper administration of the Trust. So there cannot be any dispute about the power of the Assistant Charity Commissioner to issue a direction for holding of election under Section 41A, and if required, without even hearing an objector, as the Assistant Charity Commissioner has done in the present case and prima facie, rightly so.
13. Now, the question would be while issuing such a direction, learned Assistant Charity Commissioner, could have declared only those members whose names were appearing in the list submitted in inquiry No.245/2011 were eligible to take part in the election process or not. The answer to the question would have to be found out by balancing the interests of the society against the interests of warring factions of the members of the society. In the instant case, according to the members belonging to the group of petitioner, the list of members submitted by the respondent No.2 is incorrect and many persons not eligible to be members of the society have been shown as qualified to be members of the society. This claim is disputed by the respondent No.2, who submits that the list submitted by respondent No.2, the President of the society, is correct and the list of members on which reliance is being placed by the petitioner is wrong. In the Change Report in inquiry No.509/2010, same list of members has been filed as in Change Report in inquiry No.245/2011. In the change report in inquiry No.454/2010, another list of members has been filed by the petitioner. Both these Change Reports are pending for adjudication before the Deputy Charity Commissioner, Nagpur. In such a situation, the learned Assistant Charity Commissioner, in order to uphold the interests of the society, would have to accept one or the other list of members of the society submitted by the rival groups. It appears that while doing so, the learned Assistant Charity Commissioner has taken as prima facie correct the list of members submitted by the respondent No.2 and I see no illegality or any error in prima facie accepting said list for the purposes of present election. The reason is not too far to be seen. The respondent No.2 is admittedly the President of the society and as per the bye-laws of the society, the President of the society and his executive committee, are empowered to hold the elections. The bye-laws, prima facie, do not show that the Secretary of the society and the petitioner No.1 claims himself to be the secretary of the society, has any power to hold the elections. In such a situation, prima facie correctness is bound to be assigned to the list filed in the Change Reports (Inquiry Nos. 245/2011 and 509/2010) submitted by a President empowered to hold elections instead of to a list submitted by a Secretary in a Change Report (Inquiry No.454/2011), who is not empowered to hold the elections. Therefore, I see no illegality having been committed by the learned Assistant Charity Commissioner in issuing the direction regarding declaration of the members in the list submitted by the respondent No.2 as eligible for taking part in the election process. It then goes without saying that no illegality could also be seen in the order passed by the learned Charity Commissioner on 31st January, 2016 in rejecting the application for grant of stay to the election. As already stated by me, ultimately the show must go on and eventually if the appeal is allowed, the learned Joint Charity Commissioner will not be powerless to pass all those consequential orders which might be necessary in the facts and circumstances of the case.
14. Learned counsel for the petitioner has also referred to me the case of Shakil Musa Patel and another v. Dilipsing Pratapsing Patil and others, reported in 2014(1) Mh.L.J. 960, wherein the learned Single Judge of this Court held that when a dispute regarding the list of members of a Trust was pending, the Joint Charity Commissioner ought not to have issued any direction in respect of those list of members. The facts of the said case of Shakil Patel are quite different from the facts of this case. In that case, the District Court was already in seisin of substantive matter before it and therefore, it was observed that the Joint Charity Commissioner, while disposing of the appeals, could not have at all touched the issue arising in the matter pending before the District Court by taking a direct recourse to Section 41A of the said Act.
Such are not the facts of the present case. The Change Reports being inquiry Nos.454/2010 and 509/2010 are in respect of election of the executive committee whose term got already over by the time the appeal reached the doors of the Court of the Joint Charity Commissioner. The legality or correctness of that election is altogether a different issue than the legality and correctness of the present election. If the petitioner has any objection regarding the eligible members, the objection can be taken by him before appropriate forum at appropriate time. The petitioner would always have that liberty, which cannot be taken away from him.
15. Learned counsel for the petitioner has also cited before me the case of Jagatnarayansingh Swarupsingh Chithere and others v. Swarupsingh Education Society and another, reported in 1980 Mh.L.J. 372, wherein the learned Single Judge of this Court, relying upon the decision of Gujarat High Court in Shantilal Khimchand and others v. Mulchand Dalichand and others, held that while exercising jurisdiction under Section 22 of the said Act, the Assistant Charity Commissioner must inquire into not only the factum of the change under consideration but also its legality and validity. In my humble opinion, the ratio of this case would be of assistance to the petitioner in the change reports which are pending for adjudication before the Deputy Charity Commissioner and not in this case. Even otherwise, the decision being upon the merits of the Change Reports, at this stage, it would not have any application to the facts of the present case.
16. Learned counsel for the petitioner has also referred to the case of Nawalchand Champalal Chaudhari and another v. Joint Charity Commissioner, Nagpur and another, reported in 2007(1) ALL MR 71, wherein this Court observed that as the minimum number of trustees to administer the Trust itself was not available, the Assistant Charity Commissioner ought to have referred the matter to the Charity Commissioner under Section 47 of the Act to appoint adequate number of trustees. These facts are different from the facts of the present case, wherein there is no dispute about the availability of minimum number of members of the executive committee. Similarly, the observations in paragraph 18 of the said case that in a case where there was no availability of minimum number of trustees, issuance of directions to hold elections would never result in resolving the issue once and for all and dispute will continue, would also not help the case of the petitioner. The reason being that the administrative order which has been passed in this case regarding holding of the elections has been, prima facie, found to be in the interest of the society and this Court has also found that the order declaring certain members whose names are appearing in the list filed in inquiry No.245/2011 as qualified voters as prima facie correct. Therefore, this case law would have no application to the facts of the present case.
17. In the result, I find no illegality or incorrectness in the order impugned herein. Writ Petitions deserve to be dismissed and hence writ petitions are dismissed.
18. Rule is discharged. No costs.
19. Learned Joint Commissioner is requested to dispose of the matter as expeditiously as possible as it appears that expeditious disposal of the appeal in such a case is likely to provide finality to the ongoing dispute between two rival fractions operating in the society.
20. It is made clear that the learned Joint Commissioner shall not be influenced by the observations made in this order and all contentions of the parties are kept open for being appropriately decided by the authorities below.
