JUDGMENT
S.B. Deshmukh, J.
1. This writ petition takes an exception to the judgment and order passed by the learned Assistant Charity Commissioner, Osmanabad in Enquiry Application No. 725 of 2007, dated 29.12.2007.
2. This petition was listed before the learned Single Judge of this Court on 29.1.2008. After hearing learned Counsel Shri V.D. Salunke, appearing for the petitioners and Shri S.S.Jadhavar i/b Shri V.S.Janephalkar, learned Advocate appearing for respondents 1 and 2, learned Single Judge of this Court has passed an order directing the Registry of this Court to place this petition before the Division Bench of this Court and that is how, this petition is listed for admission before this Court.
3. Resume of few facts for consideration of this writ petition is relevant:
(A). Bhartiya Rashtriya Shiksan Sanstha, Lohara, District Osmanabad (“the trust”) is registered under the provisions of the Bombay Public Trusts Act, 1950 (“the said Act”). This trust is having a constitution, copy of which is not on record. However, there are some un-disputed facts. The trust is also registered under the provisions of the Societies Registration Act, 1870. The trust runs various educational institutions like one junior college, one senior college, two high schools and one primary school. In accordance with the constitution of the trust, affairs of the trust are being looked after by the managing committee. The duration or tenure of the managing committee is of five years. Last election of the managing committee seems to have been held on 25.2.2001. After the election, Change Report No. 157 of 2001 was filed and accepted by the learned Assistant Charity Commissioner by order dated 6.6.2001. The change occurred after its acceptance seems to have been recorded with the learned Assistant Charity Commissioner in Schedule-I, copy of which is annexed with the petition. The duration or tenure of the members of the managing committee of the trust came to an end in February 2006.
(B). The petitioners have alleged that general body meeting of the trust was scheduled on 15.8.2006. Notices to all members were addressed. The elections, accordingly, took place. Out of 34 members of the trust, 24 members were present and 15 members of the managing committee have been duly elected. Change report, accordingly, is submitted on 16.8.2006 on behalf of the petitioners, which is registered as Inquiry Application No. 717 of 2006.
(C). For holding the elections or such a meeting for this period of five years, respondents 1 and 2 have a different story to tell. According to them, such meeting was scheduled on 16.8.2006. The members of the managing committee were elected and change report accordingly was submitted by them to the learned Assistant Charity Commissioner on 19.8.2006, which was registered as Inquiry No. 722 of 2006. It is also not in dispute that these two change reports are pending on the file of learned Assistant Charity Commissioner.
(D). Respondents 1 and 2 have filed an application, purportedly under Section 41A of the said Act, which is registered by the learned Assistant Charity Commissioner as Inquiry application No. 725 of 2007. This application, as noted above, seems to have been entertained by the learned Assistant Charity Commissioner and after hearing the parties to the said application, as noted above, said application is partly allowed by learned Assistant Charity Commissioner in following terms:
1. Application inquiry No. 725/2007 at Exh. No. 1 is partly allowed with directions.
2. The president Mr.Dinkar Shankarrao Patil and other office bearers in the recorded managing body have seized their status as a office bearers of the trust as the counter change reports No. 717/2006 and 722/2006 are under adjudication.
3. The recorded managing body of the trust in Sch-I of P.T.R. as de-jure trustees are directed to manage the management and day to day administration of the trust as per the constitution of the trust without taking any policy decisions likewise appointments, terminations and dismissals etc. of the employees in the institutions run by the said trust in the interest of the trust and justice until further orders.
4. Change reports inquiry No. 717/2006 and 722/2006 are hereby expedited.
5. No order as to costs.
6. Parties to take note accordingly.
4. Heard learned Counsel for respective parties at length. On behalf of respondents 1 and 2, return is filed.
5. Rule. By mutual consent of respective parties, Rule made returnable forthwith and heard finally.
6. Shri Salunke, learned Counsel appearing for the petitioners submits that the application filed on behalf of respondents under Section 41A of the said Act is not in consonance with the provision laid down under Section 41A and learned Assistant Charity Commissioner, therefore, did not have power and jurisdiction to entertain such an application. He took us through the contents of the application, especially paragraph Nos. 3 and 4. According to him, such an application ought not to have been entertained by the learned Assistant Charity Commissioner under Section 41A of the said Act. In support of his submissions, he relied upon the judgment of the Single Bench of this Court in the case of Raghunath Motiram Patil v. State of Maharashtra 2008(1)ALL MR 664, delivered by one of us (Coram : S.B. Deshmukh,J.). Shri Salunke also placed reliance on the unreported judgment of the Division Bench of this Court in the case of Janata Shiksan Prasarak Mandal v. State of Maharashtra Writ Petition No. 6073 of 2005 Dt.22.9.2005.
7. Shri Jadhavar, learned Counsel appearing for respondents 1 and 2 has supported the order of learned Assistant Charity Commissioner. He also invited our attention to paragraph No. 4 of the order impugned in this writ petition. According to him, there were two fractions in the management of the trust. Two change reports were submitted under Section 22 of the said Act by both groups and were pending hearing before the learned Assistant Charity Commissioner. He has invited our attention to paragraph Nos. 4,5,7 and 8 of the application. He submits that the application filed on behalf of respondents 1 and 2 is well within the ambit of Section 41A of the said Act. According to him, application submitted on behalf of respondents 1 and 2 is bonafide. For this submission, he has invited our attention to the prayer made in the application. In the prayer Clause (C) of the application filed by respondents, it was prayed that the meeting which will be held to manage day to day affairs of the trust will be held in the presence of public officer of the office of learned Assistant Charity Commissioner. According to him, directions were required to be issued by the learned Assistant Charity Commissioner for smooth administration of the affairs of the trust in question.
Shri Jadhavar, learned Counsel, had also invited our attention to Section 41A of the said Act. According to him, such direction can be issued by the learned Assistant Charity Commissioner to ensure the smooth administration of the public trust.
8. Since the question involved in this writ petition is in respect of the powers and jurisdiction of learned Assistant Charity Commissioner to issue directions under Section 41A of the said Act, it would be appropriate to consider the provision laid down under the said section, which is as under:
41A. 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 that if he finds 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).
Plain reading of Sub-section (1) of Section 41A makes it clear that the learned 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. It is further provided that the Charity Commissioner may also give directions to the trustees or such person that if he finds any property of the trust is in danger of being wasted, damaged, alienated or wrongfully sold, removed or disposed of. The directions as contemplated under Section 41A of the Act, which may be issued by the learned Charity Commissioner from time to time are to be issued to any trustee or any person connected therewith or to such person that he feels any property of the trust is in danger of being wasted, damaged, alienated or wrongfully sold, removed or disposed of. Sub-section (1) of Section 41A has thus clarified the persons to whom the directions may be issued by the Charity Commissioner.
“Trustee” is defined under Section 2(18) of the said Act, meaning thereby that a person in whom either alone or in association with other persons, the trust property is vested and includes a manager. Expression “Manager” is also defined under Sub-clause (8) of Section 2 of the said Act. “Person connected” – a phrase employed under Sub-section (1) of Section 41A of the said Act is not defined under the provisions of the said Act. Phrase -“such person”, which is subsequently employed in Sub-section (1) of Section 41A of the Act is also with some objective. If the Charity Commissioner finds that any property of the trust is in danger of being wasted, damaged, alienated or wrongfully sold by “such person” he may issue directions to such persons. While issuing such directions, learned Charity Commissioner has to keep in mind the objects of the trust and the purposes for which the trust is being established and run. To find out who are the trustees of a particular registered public trust, registered with the Charity organisation, is not a difficult task for the Charity Commissioner. Such trustees are recorded in the register maintained by the Assistant Charity Commissioner. The Charity Commissioner, thus is in know of such trustees with whom the property of public trust is vested. “Person connected” is not defined under the provisions of this Act, as observed earlier by us. “Such person” a phrase, which is later on used in Sub-section (1) seems to be qualifying the trustee or person connected therewith (trust). Activity of such trustee or “person connected”, if Charity Commissioner, finds of causing damage, alienation, wastage etc. to trust property, he may issue such directions from time to time. Thus, prime importance seems to have been given under Section 41A of the said Act to prevent wastage, damage, alienation or disposal of the trust property, either by the trustee of the registered public trust or “person connected” with such trust. Removal of trustees, appointment of trustees or committee, to look after the affairs of the trust are not the powers vested with the Charity Commissioner under Section 41A of the said Act.
9. In the matter of Raghunath Motiram Patil (supra), scope of Section 41A of the said Act was considered along with other provisions of the said Act. It was held;
7. …Thus, direction issued by the Charity Commissioner under Section 41A is also not made appealable before the District court under Section 72. It seems to be intention of the Legislature while inserting Section 41A empowering the Charity Commissioner only to issue directions to the trustee or the person connected with the trust and to ensure that the trust is properly administered and income thereof is properly accounted for and waste and damage to trust property to be prevented. No lis before the Charity Commissioner and/or Appellate and Revisional Authority is contemplated under the provisions of the said Act. The powers of Charity Commissioner under Section 41A are delegated to Assistant Charity Commissioner. Thus, the authority, exercising the powers under Section 41A of the said Act, is not empowered to dislodge the trustee from office, appoint committee for administration of the trust or to appoint administrator to look after the affairs of the trust. Such orders / directions by the authority, resorting to Section 41A of the said Act is under assumption that such powers are vested with the authority. Such orders / directions, therefore, are arbitrary and exceeding power and jurisdiction.
10. The administration of the trust vests with the Board of Trustees, Governing Council, Managing Committee etc. which usually is provided by the Constitution of the trust. Such Managing Council etc. consists of trustees elected in accordance with the scheme or constitution of the trust. The mode of succession to the office of trustees is usually provided by the Constitution of the trust. The tenure of the trustee and/or managing committee and/or board of trustees also is provided by the scheme or constitution of the trust. The property of the trust vests in trustees duly elected as such to the Board of Trustees. Specific number of Board of Trustees and office bearers of the Board of Trustees is also provided by the scheme or constitution of the trust. Sometimes coram for the meeting of such Board of Trustees is also provided in the constitution Day-to-day affairs of the trust are thus to be run by such Board of Trustees or Governing Council by whatever name it is called in relation to a particular trust. It may happen during the tenure of a particular Board of Trustees/ Committee that a trustee or some trustees of the trust in question disclaim to function as trustee or trustees. Death of trustee or trustees is also inevitable. Contingency of a trustee or some trustees remaining absent from India for a considerable span of time without permission of the Charity Commissioner, Deputy Charity Commissioner or Assistant Charity Commissioner or by the officer authorised by the State Government also may happen in relation to a particular trust. A trustee or trustees may leave India for the purpose of residing abroad. In a proceeding a trustee or trustees may be declared as insolvent. The trustee or trustees may desire to be discharged from the trust or may refuse to act as a trustee. The Charity Commissioner may be of an opinion that a trustee or trustees become unfit or physically incapable to act as a trustee of the trust. Sometime a trustee or trustees may accept a position which is inconsistent with his position as a trustee. All these contingencies have been enumerated under Sub-section (1) of Section 47 of the said Act, which reads as under:
47. (1) Any person interested in a public trust may apply to the Charity Commissioner for the appointment of a new trustee, where there is no trustee for such trust or the trust cannot be administered until the vacancy is filled, or for the suspension, removal or discharge of a trustee, when a trustee of such trust, —
(a). disclaims or dies;
(b). is for a continuous period of six months absent from India without the leave of the Charity Commissioner or the Deputy or Assistant Charity Commissioner or the officer authorised by the State Government in this behalf;
(c). leaves India for the purpose of residing abroad;
(d). is declared as insolvent;
(e). desires to be discharged from the trust;
(f). refuses to act as a trustee;
(g). becomes in the opinion of the Charity Commissioner unfit or physically incapable to act in the trust or accepts a position which is inconsistent with his position as trustee;
(h). …
(i). is convicted of any offence punishable under this Act or an offence involving moral turpitude.
Section 47 confers power upon the Charity Commissioner to suspend, remove or discharge trustees and to vest property to new trustees. Thus, object of Section 47 seems to be for smooth functioning of the trust in question. If necessary, Charity Commissioner is vested with the powers to appoint, to suspend, remove or discharge trustees and to vest property to new trustees under Section 47 of the said Act.
The procedure for exercise of powers under Section 47 is laid down under Sub-section (2). Hearing of the parties is contemplated. Enquiry, as the Charity Commissioner, may deem fit is also provided. It is further provided under Sub-section (2) of Section 47 that the Charity Commissioner by order appoint any person as the trustee or may also remove or discharge any trustee for any of the reasons specified in Sub-section (1) of Section 47. In relation to appointment of trustee or trustees, Sub-section (3) of Section 47 is material. After considering these two aspects of the matter that for appointment, suspension, removal or discharge of the trust or trustees, Sub-section (4) makes it lawful for the Charity Commissioner to direct vesting of any property subject to the trust in the person so appointed as a trustee or trustees. The order passed by the Charity Commissioner, under Sub-sections (1) and (2) has been conferred with the status of the decree of the Court and appeal has been provided from such decree to the High Court. Incidently, it is to be noted that the “Court” is defined under Sub-section (4) of Section 2 of the Act meaning thereby, “In the Greater Bombay, City Civil Court and elsewhere, the District Court.” In other words, the order passed by the Charity Commissioner is thus elevated to the status of a decree passed by the Court i.e. the District Court and further appeal has been provided directly to the High Court by Sub-section (5) of Section 47 of the said Act.
11. In the case on hand, it is not in dispute that respondents 1 and 2 while filing an application purportedly under Section 41A of the said Act, have stated that they are the persons having interest under Section 2(10) of the said Act. From this provision laid down under Section 47 of the Act, thus, two things are clear, namely; (i) an application by the person interested in certain situations enumerated therein is contemplated to the Charity Commissioner and (ii) the Charity Commissioner is empowered to entertain and decide the application in accordance with Scheme of Section 47 of the said Act. Under Sub-section (2) of Section 47, hearing to the parties and an enquiry by the Charity Commissioner is contemplated. Under Sub-section (4) Charity Commissioner is further empowered for appointing a new trustee under Sub-section (2) either by the same or by any subsequent order to direct that any property subject to the trust shall vest in the person so appointed and thereupon it shall so vest. Sub-section (5) of Section 47 has given a status to such order as a decree of the court and appeal has been provided to the High Court. Thus, the provisions laid down under Section 41A of the said Act operates in a different situation and field and has given powers to the Charity Commissioner, which are further delegated to the learned Assistant Charity Commissioner. The provisions laid down under Section 47 operates in a different situation and has given more wide powers not only for removal but also for appointment of the trustee, in relation to the concerned registered public trust. The objective seems to have a smooth functioning of the trust and to avoid grinding halt in day to day affairs of the trust. Appeal against such order, therefore, has been provided directly to the High Court.
The Charity Commissioner or Assistant Charity Commissioner as the case may be, has to pass appropriate orders within the parameters of the provisions laid down under Sections 41A as well as 47 of the said Act.
12. Now, turning to the case on hand, there is no dispute that two change reports are filed and pending before the learned Assistant Charity Commissioner on behalf of the petitioners as well as respondents 1 and 2. Both of them are claiming that general body meeting of the trust in question had taken place, on a particular date and few persons have been elected either as a member of the managing committee and/or office bearers of the trust in question. In relation to this aspect, both learned Counsel have produced on record ample material, consisting of affidavits and copies of the correspondence, either to the University or from the University. Both applications, undisputedly, are pending before the learned Assistant Charity Commissioner. The question of fact, regarding election of the trust in question and election of the members as well as office bearers of the trust, at present, is pending before the learned Assistant Charity Commissioner. We, therefore, refrain ourselves from referring this material in extenso and record any finding. The orders, which are likely to be passed by learned Assistant Charity Commissioner are subject to further proceedings under Sections 70 and 72 of the said Act.
13. The orders purportedly passed by the learned Assistant Charity Commissioner under Section 41A of the Act in routine have been challenged by filing writ petitions time and again before this Court. It is an usual phenomenon that two or more groups are claiming management of the registered public trust. The change reports, according to them, under Section 22 of the said Act have been filed before the learned Assistant Charity Commissioner. Before disposal of change reports under Section 22, learned Assistant Charity Commissioner gets the application purportedly under Section 41A from one of the groups or sometimes from both the groups and instead of disposing and deciding the application under Section 22 of the said Act, learned Assistant Charity Commissioner entertains an application purportedly under Section 41A of the Act and orders are being passed.
14. According to the provision under Section 22 of the said Act, change occurred has to be reported to the learned Assistant Charity Commissioner. The decision of the learned Assistant Charity Commissioner is not final in the matter and such orders are taken up in further proceedings either under Sections 70 or 72 of the said Act and ultimately under Article/s 226/227 of the Constitution of India before this Court. It is, in this backdrop, the learned Assistant Charity Commissioner or the learned Charity Commissioner exercising powers under Section 41A of the Act has to be careful while entertaining such an application. He should record a finding whether the application is entertainable under Section 41A of the Act. It is in this circumstance, the learned Assistant Charity Commissioner should pass orders on such applications. The learned Assistant Charity Commissioner concerned shall decide and dispose of the change reports expeditiously, if necessary, by hearing the matters on day to day basis. Such final disposal of the change reports may help in proper administration of the trust in question, as well as the trustees concerned.
15. As observed by us in the foregoing paragraphs, such directions under Section 41A of the Act can be given to trustees. Unless such status being a trustee is available with the learned Assistant Charity Commissioner, he shall not entertain an application under Section 41A of the Act and issue directions. All endeavour should be made for final disposal of the change reports or the applications filed under Section 22 of the said Act.
16. Process of recruitment of some teaching and non-teaching staff as approved by the University in relation to Senior College is in vogue. Such process is initiated in view of an advertisement published on 10.11.2007. Such recruitment process shall be proceeded in accordance with provisions of Maharashtra Universities Act, 1994. We are told that the Selection Committees are provided under Sections 78 and 79 of the said Act of 1994. In case member / representative of the trust is required to be a member of the Selection Committee, one member, out of eight remaining, who are not recited as elected members of board of trustees in either of the change reports and who is having highest educational qualification shall represent the trust on the selection committee. If such two members are equally qualified, one who has acquired highest qualification in earlier point of time shall be deemed senior and be the member of the Selection Committee on behalf of the trust.
17. We have gone through the application filed by respondent Nos. 1 and 2 purportedly under Section 41A of the said Act in the case on hand. we are of the firm opinion that this application ought not to have been entertained by the learned Assistant Charity Commissioner under Section 41A of the said Act. The order impugned in this writ petition, therefore, needs to be quashed and set aside, with further direction that the Assistant Charity Commissioner, Osmanabad shall decide Change Reports 717 and 722 of 2007 on/or before 18.4.2008. The petitioners as well as respondents 1 and 2 shall remain present before the Assistant Charity Commissioner on 25.2.2008 at 11.30 a.m.
18. In this view of the matter, Rule made absolute in above terms. No order as to costs.