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2016 DIGILAW 103 (BOM)

Asaram s/o Vithobaji Selokar v. Deputy Charity Commissioner, Nagpur Sub-Region, Bhandara

2016-01-15

B.R.GAVAI, P.N.DESHMUKH

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JUDGMENT : P.N. Deshmukh, J. This petition takes exception to the impugned order dated 4-4-2000 passed by respondent No. 1 vide which said respondent has directed petitioners to amend the Memorandum of Association of the trust. 2. In brief, facts involved in the petition can be stated as under : Petitioners are office bearers of Gram Vikas Shikshan Sanstha, Khunari, Tahsil Lakhandur, District Bhandara of which last elections were held on 11-12-1994 wherein they came to be elected. However, respondent No. 2 was not reelected as President of the society. The change report with respect to aforesaid elections is pending before respondent No. 1. Respondent No. 2 filed an application under section 41-A of the Bombay Public Trusts Act, 1950 (hereinafter referred to as 'the Act') before respondent No. 1 seeking directions to petitioners to restrain themselves from interfering in smooth working of the society. It was further prayed that the newly elected body be declared as illegal and void as they are likely to cause hardship and hurdle in the smooth working of the society and take advantages for their personal gains. This application was resisted by the petitioners on the ground that the election of the new executive body was held in the meeting dated 11-12-1994 according to the rules and procedure contemplated under the Memorandum of Association of the society and that the working of the society is smooth without any obstruction and the interest of the society are being properly safeguarded by the newly elected executive body. It is the specific contention of the petitioners that since respondent No. 2 was not reelected as the President of the society, this frivolous application is filed. 3. Respondent No. 1 by impugned order dated 4-4-2000 passed on said application under section 41-A of the Act though held that it would not be proper to disturb peaceful administration by the working management of newly elected executive body, had observed that the post of Secretary of the society is lifelong and permanent post as per the Memorandum of Association of the Society which as such would be against the democratic pattern of the society, directed the petitioners to amend the constitution of the trust within a period four months. Having been aggrieved by the said order, present petition is filed. Having been aggrieved by the said order, present petition is filed. By way of interim order passed by this court on 22-8-2000, ad interim relief in terms of prayer clause (3) of the petition was granted which was thereafter confirmed vide order dated 30-10-2002 when the petition came to be admitted for final hearing. 4. Heard learned counsel for petitioners and respondents. It is the case of the respondent Nos. 1 and 2 that the petitioners' trust is having its own Memorandum of Association, wherein name of society, object, names and designations of the managing body are mentioned and it has its own rules and regulations from the year 1980 for the management and administration of the trust. One Shivaji High School is run by the said trust. The change report regarding changes of trustees due to election held on 11-2-1994 is hotly contested and it is subjudice before respondent No. 1 and the impugned order has been rightly passed by the said respondent in the interest of the trust. Admittedly, according to respondent No. 2 the learned Charity Commissioner while adjudicating upon the application filed under section 41-A of the Act suo motu gave directions to the petitioners' management for effecting amendment in Clause 10 which is with reference to the long-life tenure of the Secretary of the trust. In that view of the matter, the respondents have supported the impugned order which is stated to be within the ambit and power of said respondent which according to the said respondent has been passed after hearing both the parties and on considering the pleadings. It is thus submitted that the petition being devoid of merits be dismissed. 5. We have perused impugned order, copy of minutes of last meeting held on 11-12-1994, copy of change report, consent letter given by petitioners supporting the change report, application under section 41-A of the Act, reply filed thereto, copy of Memorandum of Association of the Society duly registered and approved by the Assistant Registrar of Societies, Nagpur Region, Nagpur. Considering the facts involved in the petition and on perusal of documents and impugned order, we have noted that respondent No. 1 had committed an error of jurisdiction as well as law in directing petitioners to amend the clause of permanent secretaryship in the Memorandum of Association of the society, thereby directing the petitioners to amend its constitution. 6. Considering the facts involved in the petition and on perusal of documents and impugned order, we have noted that respondent No. 1 had committed an error of jurisdiction as well as law in directing petitioners to amend the clause of permanent secretaryship in the Memorandum of Association of the society, thereby directing the petitioners to amend its constitution. 6. Section 41-A of the Act reads thus :- 41-A. Power of Commissioner to issue directions for 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). Thus, it would be seen that above provisions provide for the power of the Charity Commissioner to issue directions to any trustee of the 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 object and for the purpose of the trust. Said provisions also empower the Charity Commissioner to issue direction to the trustee or such person, if he finds that any property of trust is in danger of being wasted, damaged, alienated or wrongfully sold, removed or disposed of. 7. On perusal of application made by respondent No. 2 under section 41-A of the Act, it is prayed that direction be issued to petitioners to restrain from interfering in the smooth working of the society and it was also prayed that the newly elected body be declared as void. In the impugned order, respondent No. 1 has held that the prayer in the application cannot be granted as the situation does not warrant for any interference with the smooth administration of the society which is being properly managed by the newly elected executive body. In the impugned order, respondent No. 1 has held that the prayer in the application cannot be granted as the situation does not warrant for any interference with the smooth administration of the society which is being properly managed by the newly elected executive body. However, respondent No. 1 has directed petitioners to amend the Memorandum of Association of the Society which amounts to modify the scheme of society. As such, we find that respondent No. 1 has exceeded its jurisdiction and has erred inasmuch as issuing directions for modification of the scheme of the society since no such direction can be issued in proceedings initiated under section 41-A of the Act. 8. As already aforesaid, under section 41-A of the Act the Charity Commissioner has powers to issue directions only for proper administration of the trust and therefore respondent No. 1 by passing impugned order appears to have exercised its jurisdiction wrongly inasmuch as by issuing direction as aforesaid and in any case respondent No. 1 while considering application under section 41-A of the Act was required to only consider the same and thus issuing direction by the impugned order for effecting amendment in the constitution without giving any opportunity to the petitioners or the trustees of the society being heard cannot stand for any reasons. 9. In that view of the matter and from the discussion of the petition as aforesaid, we are of the considered view that such direction could not have been issued by respondent No. 1 to the petitioners to effect amendment in the constitution of the trust, more particularly, in view of sections 50 and 51-A of the Act which empowers the Charity Commissioner to frame, amalgamate or modify schemes and as such respondent No. 1 should not have utilized said provisions while considering application under section 41-A of the Act. Moreover, as already aforesaid, respondent No. 1 has recorded his satisfaction that there was no necessity to interfere with the smooth functioning of the trust, which satisfaction is recorded after having heard respondent No. 2. Moreover, as already aforesaid, respondent No. 1 has recorded his satisfaction that there was no necessity to interfere with the smooth functioning of the trust, which satisfaction is recorded after having heard respondent No. 2. We find no reason for respondent No. 1 to issue further direction considering that the term of Secretary of the trust is for life-long, as such exercise cannot be permitted to be undertaken under section 41-A of the Act and such directions issued for amending the constitution are unsustainable and hence the same are required to be quashed and set aside. In the result, we make the following order. ORDER 1. Writ Petition No. 2852 of 2000 is allowed. 2. Rule is made absolute by quashing and setting aside the order passed by respondent No. 1. Deputy Charity Commissioner, Nagpur, dated 4th of April, 2000 in Enquiry No. 2 of 1995. 3. No order as to costs.