Ramesh and Others vs The Assistant Charity Commissioner, Bhandara and Others

P.B. Varale, J—Heard. RULE. Rule Returnable forthwith.

By this writ petition, the petitioners are challenging the order passed by the learned Assistant Charity Commissioner, Bhandara, dated 01.09.2014, thereby rejecting the application fled by the petitioners seeking permission to examine Handwriting Expert in Change Report proceeding No. 827/2005 fled by respondent No. 2 herein.

Before summarizing the brief facts giving rise to the present petition, it will not be out of place to mention that the present petition revolves around the alleged grievance of the petitioners that the respondent No. 1-Assistant Charity Commissioner, Bhandara in undue haste has rejected the application. On the backdrop of this submission itself, this Court in detailed order dated 04.09.2014 had granted interim relief in terms of prayer clause (ii) till the respondents cause their appearance before this Court or until further orders of this Court.

The petitioner No. 1 claims to be the Trustee and the other petitioners as the office bearers of the Trust namely Magaswargiya Samaj Sudhar Shikshan Sanstha, Tumsar, Dist. Bhandara. They have already challenged the order passed by the learned Joint Charity Commissioner in Appeal No. 01/2014 before this Court.

The respondent No. 2 had fled a Change Report proceeding No. 827/2005 before the respondent No. 1-Assistant Charity Commissioner, which has been decided by the order dated 21.12.2013 and the Change Report was allowed in favour of the applicant Smt. Saroj Mate, the respondent No. 2 herein. Being aggrieved by the said order, the petitioners preferred an appeal before the learned Joint Charity Commissioner bearing Appeal No. 01/2014. It was the submission of the petitioners/appellants before the learned Joint Charity Commissioner that the order passed by the learned Assistant Charity Commissioner is without offering opportunity of hearing to the petitioners/appellants. The learned Joint Charity Commissioner, by order dated 05.05.2014 allowed the appeal, thereby quashing and setting aside the order dated 21.12.2013, passed by the learned Assistant Charity Commissioner, Bhandara. The learned Joint Charity Commissioner remanded the matter back to the Assist. Charity Commissioner (trial authority) for deciding the same within the stipulated period of three months with a direction that opportunity of hearing be given to both the parties.

Perusal of the material placed on record shows that the grievance was raised by the petitioners in respect of service of the notice of the meeting to the petitioners in respect of election. The petitioners had sought an opinion of Handwriting Expert. The report of Handwriting Expert was received and was placed on record. Thereafter, the petitioners fled an application dated 01.09.2014, seeking examination of the witness i.e. Handwriting Expert, which was rejected by the learned Assistant Charity Commissioner. Feeling aggrieved by said order, the petitioners are before this Court.

Mr. Anil Mardikar, the learned Senior Advocate appearing with Mr. Amol Mardikar, learned Advocate for the petitioners submitted that the Change Report proceedings No. 827/2005, fled by the respondent No. 2 herein, before the learned Assist. Charity Commissioner was pending for a long period and the same came to be decided on 21.12.2013, without hearing the petitioners. The learned senior counsel submitted that in Appeal No. 01/2014 preferred by the petitioners, the learned Joint Charity Commissioner arrived at a conclusion that the appellants as well as their counsel were absent before the trial authority and as such no opportunity of fling objection or adducing evidence was granted to the petitioners and as such the order passed by the learned Assistant Charity Commissioner, dated 21.12.2013 was without giving any opportunity of hearing to the appellants. Therefore, the learned Joint Charity Commissioner remanded the matter back to the trial authority by allowing the application. It was the submission of the learned Senior Counsel for the petitioners that the learned Assistant Charity Commissioner, Bhandara, though allowed the applications of the respondent No. 2 herein, which were unsustainable and for the reasons best known to the authority, rejected the applications fled by the petitioners. It was the thrust of the learned senior counsel for the petitioners that the trial authority is proceeding with the matter in undue haste. It was submitted that though the stipulated period for deciding the proceedings granted by the Appellate Authority was extended at the request of the learned Assistant Charity Commissioner, the learned Assistant Charity Commissioner, without assigning any reasons, rejected the application of the petitioners and though the petitioners sought time to approach this Court and prayed for copy of the order, the same was not made available to the petitioners. As such, the petitioners were constrained to file the present petition hurriedly.

Mr. Mardikar, the learned senior advocate for the petitioners submitted that the application was fled at the instance of the respondent No. 2, seeking exemption of the Election Officer from remaining present for cross-examination and though the application was untenable, the application was allowed by the learned Assistant Charity Commissioner, whereas the application fled by the petitioners herein seeking examination of the material witness namely Handwriting Expert was rejected, thereby causing serious prejudice to the petitioners. The learned senior counsel for the petitioners then submitted that during the pendency of the present petition, the order passed by the learned Assistant Charity commissioner, rejecting the application of the petitioners, was received and the reason for rejecting the application, on the backdrop of the order passed by this Court in W.P. No. 1675/2012, is unsustainable. The learned senior counsel for the petitioners, by referring to the provisions of the Indian Evidence Act, particularly Sections 45 and 47, submitted that the learned Assistant Charity Commissioner ought not to have taken recourse to Section 73 of the Act, ignoring the provisions of Sections 45 and 47 of the said Act. In support of his submissions, the learned senior counsel for the petitioners has placed reliance on the judgments of the Hon''ble Apex Court, reported in The State (Delhi Administration) Vs. Pali Ram, AIR 1979 SC 14 : (1979) CriLJ 17 : (1979) 2 SCC 158 : (1979) SCC(Cri) 389 : (1979) 1 SCR 931 ; O. Bharatan Vs. K. Sudhakaran and another, AIR 1996 SC 1140 : (1996) 2 JT 384 : (1996) 1 SCALE 688 : (1996) 2 SCC 704 : (1996) 1 UJ 307 and another; and Ajay Kumar Parmar Vs. State of Rajasthan, AIR 2013 SC 633 : (2013) 1 JCC 652 : (2012) 10 JT 503 : (2012) 9 SCALE 542 : (2012) 12 SCC 406 : (2012) AIRSCW 5492 .

Per contra, Mr. Kaptan, the learned senior counsel appearing with Mrs. Mahashabde, learned counsel for the respondent No. 2 vehemently submitted that the petitioners, who were making hue and cry alleging that the application of the petitioners was rejected with an undue haste, have not approached this Court with clean hands by disclosing all the details. The learned senior counsel for the respondent No. 2 submitted that the petitioners had participated in the proceedings before the learned Assistant Charity Commissioner i.e. Change Report proceeding No. 827/2005. The learned senior counsel further submitted that he is not pressing this submission on the backdrop of the fact that the learned Joint Charity Commissioner has remanded the matter back to the learned Assistant Charity Commissioner for fresh decision. Mr. Kaptan, the learned senior counsel further submitted that the petitioners who are alleging undue haste against the authority, are themselves blameworthy for protracting the proceedings. It was the submission of the learned senior counsel for the respondents that on one or the other pretext, the petitioners want to protract the proceeding and by fling the application seeking examination of handwriting expert, the petitioners are not only making attempt to fill up the lacuna, but causing a serious prejudice to the respondent No. 2. It was the submission of the learned senior counsel for the respondent No. 2 that the application fled by the present petitioners and rejected by the learned Assistant Charity Commissioner by order dated 01.09.2014 was their third unsuccessful attempt. Earlier two applications fled by the petitioners on the same premises were rejected by the learned Assistant Charity commissioner. He submitted that the petitioners, without disclosing this fact, have approached this Court making capital by alleging that the learned Authority i.e. Assistant Charity Commissioner in undue haste has rejected their application. The learned senior counsel Mr. Kaptan, therefore, prayed for dismissal of the present petition.

On the backdrop of the submissions of both the parties, I have gone through the material placed on record. The learned Joint Charity Commissioner, by order dated 05.05.2014 has remanded the proceedings of C.R. No. 827/2005 to the respondent No. 1 for fresh decision within a stipulated period. Perusal of the material further show that respondent No. 2 herein by way of an affidavit had tendered her additional evidence by submitting that the petitioner No. 1 had received the notice of meeting personally in respect of election. It was further submitted in the additional evidence by respondent No. 2 that the petitioner No. 1 has admitted the fact of receipt of notice by sending letter to the President and submitting therein that the President has no right to hold the election. On the backdrop of the submission of the petitioners that the respondent No. 1 authority has allowed the application fled by the respondent No. 2, though not tenable and rejected the application fled by the them, I have perused the record. Perusal of the record reveals that an application was fled seeking exemption of Shri Vikas Gondane, Election Officer from remaining present for cross-examination. It was stated in the said application that when the reporting Trustee contacted Mr. Gondane to inform the date of the proceeding namely the cross-examination scheduled of the witness, it came to the knowledge of the reporting Trustee that Mr. Gondane was hospitalized for ''Left gangliocapsular bleed with Hypertension with CKD with IHD''. It was submitted that Mr. Gondane had undergone a major surgery and was facing paralytic attack as well he was unable to either speak or move. A medical certificate was placed on record to that effect. Considering the material, the learned Assistant Charity Commissioner allowed the application.

Insofar as the controversy involved in the present petition as referred to above, rejection of the application of the petitioners by the learned Assistant Charity Commissioner seeking permission for examination of witness i.e. Handwriting Expert, the material placed on record show that the petitioner had earlier fled an application seeking permission to place on record the report of the Handwriting Expert. The learned Assistant Charity Commissioner rejected the application by order dated 14.08.2014, which reads thus:

"Perused application and say and documents. It appears that said documents is expert opinion of handwriting and in view of authority W.P. No. 1675/12, this authority is fit person to compare disputed signature from admitted documents. Hence, application is rejected."

Perusal of the material further show that though the matter was fixed by the learned Assistant Charity Commissioner for adducing evidence of the witness, an application was moved by the petitioners expressing their inability to adduce the evidence on account of ill-health of the counsel. The learned Assistant Charity Commissioner, by order 28.8.2014 rejected the application in view of the order dated 4.08.2014. On 01.09.2014, an application was moved by the petitioners for grant of permission to examine handwriting expert and the same was rejected by order dated 01.09.2014, which reads thus:

"Perused the application, say and record and heard both advocates for respective parties. In view of order below 102, 106 and Exh. 1, application is rejected."

Thus, the record clearly reveals that the learned senior counsel for respondent No. 2 was justified in submitting that the petitioners, whose application was rejected by order dated 14.08.2014, made no attempts to challenge the order before the higher forum and on the same premises fled the subsequent application and when the application was rejected by the learned Assistant Charity Commissioner, the petitioners are making hue and cry alleging that the authority is making undue haste. It will also be useful to refer to the order passed by this Court in W.P. No. 1675/2012. This Court, on the backdrop of the facts that there was denial to the signature by the objector/respondent No. 2 and the learned Assistant Charity Commissioner thought it ft to compare the disputed signature with the admitted signature of the objector as there were ample documents on record and as the evidence was almost concluded, the method of comparison of the signatures by the learned Assistant Charity Commissioner himself, could not be faulted. The writ petition challenging the order passed by the learned Assistant Charity Commissioner was thus dismissed.

The learned senior counsel for the petitioners though placed heavy reliance on the judgments of the Apex Court in the matter of Ajay Kumar Parmar vs. State of Rajasthan; and O. Bharathan vs. K. Sudhakaran and another, (supra) and there cannot be any dispute on the proposition of law reflected in these judgments, in my opinion, these judgments are of no help to the petitioners firstly for the reason that rejection of application of the petitioners by the learned Assistant Charity Commissioner on the ground that the Court can undertake the exercise of comparing the signatures by itself, was not challenged by the petitioners and the petitioners kept mum and then on same premises fled the subsequent application and on rejection of said application, fled this petition alleging that the authority below has passed the order in undue haste. It will also not be out of place to state that the offences under the Indian Penal Code would certainly be different from the scope of enquiry and the proceedings conducted by the learned Assistant Charity Commissioner in the matter of Change Report proceedings. The reply fled by the respondent No. 2 show that though the learned Joint Charity Commissioner has directed to decide the Change Report enquiry within stipulated time and though the respondent No. 2 was regularly attending the proceedings, the petitioners on one or the other ground kept the proceedings prolonging by initially seeking time for cross-examining the respondent No. 2 and subsequently by seeking adjournment for evidence of their witness and thereafter, fling the application on more than one occasions on one or the same premises. The learned senior counsel for the respondent No. 2 was justified in submitting that because of the act of the petitioners, the matter is pending for its decision, in spite of the directions of the learned Joint Charity Commissioner to decide the proceeding within stipulated period and delay in deciding the proceedings would cause a serious prejudice to the respondent No. 2.

In my opinion, it will be in the interest of justice and in the interest of the parties that the proceedings before the learned Assistant Charity Commissioner is decided at the earliest instead of keeping the same pending for indefinite period and there cannot be any dispute that on decision by the learned Assistant Charity Commissioner, the aggrieved party can certainly challenge the order passed by the learned Assistant Charity Commissioner, if they so desire. The petition thus being meritless deserves to be dismissed and the same is accordingly dismissed. Needless to state that the interim order passed by this Court stands vacated.

Writ Petition is disposed of accordingly. Rule discharged. No order as to costs.