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Judgment
Heard finally with consent of learned advocates for the respective parties.
Notice for final hearing of the petition was issued vide order dated 03.02.2022. Respondent Nos.1 to 3, who are the attesting respondents were duly served. However, the learned advocate representing them was subsequently elevated as a Judge of this Court. Consequently, fresh notices were ordered to be issued for engagement of another advocate. Notices pursuant to the said order were served upon respondent Nos.1 to 3. However, they have not made alternate arrangement and have not entered appearance in the petition. The petition is, therefore, taken up for hearing in their absence.
The present petition is filed in order to challenge judgment and order dated 04.01.2022 passed by the learned Joint Charity Commissioner, Latur Region, Latur (hereinafter referred to as “JCC” for brevity) in Revision Application No.66 of 2019. The learned JCC has allowed the revision application thereby quashing and setting aside judgment and order dated 08.05.2018 passed by learned Deputy Charity Commissioner, Latur Division, Latur (hereinafter referred to as “DCC” for brevity) in Change Report Inquiry No.2082 of 2018. The learned DCC has allowed the said Change Report vide said order dated 08.05.2018.
The dispute pertains to a Trust named Vaibhav Shikshan Sanstha, Malvati, which is a registered public trust under the Maharashtra Public Trusts Act, 1950 (hereinafter referred to as “the MPT Act”). The said Trust had nine members when it was formed. As per the by-laws of the Trust, the Executive Committee of the Trust comprises of nine members. All the nine members of the Trust were members of the Executive Committee. Two of the members, namely, Yashwantrao Narayan Shinde and Uttamrao Narayan Shinde, expired on 25.07.2017 and 15.07.2016 respectively, with the result that only seven members remained in the Trust.
Elections of the Executive Committee of the Trust were held on 27.08.2017. The present petitioner No.4 filed Change Report under Section 22 of the MPT Act, reporting the said change. The said Change Report was registered as Inquiry No.7664 of 2017.
The said Change Report inquiry was rejected by the learned In-charge Deputy Charity Commissioner, Latur Region, Latur vide judgment and order dated 08.02.2018. The Change Report was rejected on the ground that the constitution of the Trust provided that the Executive Committee shall comprise of nine members and as per the Change Report only seven members were elected to the Executive Committee. The learned DCC appointed an ad-hoc body comprising of three members viz. Joint Secretary, Vice President and Secretary of the said Trust for a period of three months for proper administration of the Trust. Directions were issued to the ad-hoc body to hold fresh elections of the Trust as per by-laws and to submit a Change Report.
In view of the order passed by the learned DCC, the three member ad-hoc committee took charge of the affairs of the Trust. The three member committee inducted six new members in the Trust. Thereafter, elections of Executive Committee of the Trust were held on 05.03.2018. In these elections, an executive committee comprising of nine members came to be elected. In the elections held on 05.03.2018, the petitioner No.1 to 4 were elected as President, Vice President, Secretary and Treasurer of the Trust, respectively. Respondent No.1 was elected as Joint-Secretary. Petitioner Nos.5 and 6 and respondent Nos.2 and 3 are elected as Executive Committee members.
Petitioner No.1 filed a fresh change report bearing Inquiry Application No.2082 of 2018 before the learned DCC. No person was arrayed as a non-applicant/respondent to the said Change Report. The said Change Report came to be allowed vide judgment and order dated 08.05.2018. Perusal of the order will indicate that resolution dated 05.03.2018 was marked a Exhibit 11, consent letter was marked as Exhibit 3, letter of no objection was marked as Exhibit 4 and death certificates of two trustees, who had expired were marked as Exhibits 8 and 9. Reference is also made to the affidavits by incoming trustees that they had no objection for allowing the Change Report, which is at Exhibit 14.
After the Change Report was allowed vide judgment and order dated 08.05.2018, present respondent Nos.1 to 3 challenged the same by filing revision under Section 70-A of the MPT Act, which came to be registered as Revision Application No.66 of 2019. Respondent Nos.1 to 3 have stated that the alleged elections were never held and that their signatures were obtained on relevant documents fraudulently, under deception. It is also contended that the ad-hoc committee did not have authority to induct new members and, as such, induction of new members is illegal.
The learned JCC has accepted the contention of respondent Nos.1 to 3 that the induction of six new members in the Trust was illegal. It is held that the ad-hoc committee did not have any authority to take policy decision such as induction of new members in the Trust. The learned JCC has held that the only course available was to make appropriate application under Section 47 of the MPT Act for induction of new members since the members shall also become trustees of the Trust. Apart from this, it is held that the learned DCC did not issue a public notice as contemplated by Rule 7A of the Maharashtra Public Trust Rules, 1951 (hereinafter be referred to as “MPT Rules” for brevity) before deciding the Change Report and, as such, deprived respondent Nos.1 to 3 an opportunity to contest the Change Report.
The present petition is filed in order to assail the said order.
Mr. Salunke, learned Advocate for the petitioners argues that the Change Report was allowed vide judgment and order dated 08.05.2018 and the Revision Application was filed after an inordinately long period of around nine months on 25.02.2019. The learned advocate contends that respondent Nos.1 to 3 have failed to justify the delay caused in challenging the order accepting Change Report. It is contended that Section 70(1) of the MPT Act provides that proceeding under Section 22 of the MPT Act shall be subject to appeal and that limitation for filing such appeal, as prescribed under Section 70(2), is only of sixty days. Mr. Salunke, argues that although there is no period prescribed for filing of revision, it is well settled that the revision application must be filed within a reasonable period and that inordinate and unexplained delay in filing revision application, by itself, is a ground for rejection of revision application. It is argued that the reasonable period must be constructed in view of the fact that period of 60 days is prescribed as limitation for filing appeal. Mr. Salunke further argues that the earlier Change Report, which was not disputed by any of the members, including respondent Nos.1 to 3, was rejected on the ground that, although the Executive Committee comprises of nine persons, in the elections held, only seven members were elected to the Executive Committee since there were only seven general body members. He argues that in view of the aforesaid, it had become obligatory on the part of the ad-hoc committee to induct new members. He argues that unless at least two more members were inducted in the Trust, it was impossible to constitute Executive Committee comprising nine members. It is argued that authority to induct new members is implicit in the order dated 08.02.2018 passed by the learned DCC in Inquiry No.7664 of 2017, whereby Change Report was rejected on the aforesaid ground and adhoc committee was specifically appointed for holding elections of the Trust in accordance with by-laws. Mr. Salunke, therefore, contends that the order passed by the learned JCC allowing revision application on the ground that the ad-hoc committee did not have authority to enrolled new members is unsustainable.
On the point of delay, Mr. Salunke, has placed reliance on judgments of the Hon’ble Supreme Court in the case of Ragho Singh Vs. Mohan Singh and ors1, Hidayatkhan Bismillakhan Pathan Vs. Vaijnath and ors2, and judgment of this Court in Dadasaheb Dattajirao Nimbalkar and ors Vs. Ushadevi Rajaram Nimbalkar and anr3.
In the case of Ragho Singh (supra), the Hon’ble Supreme Court has held that when an appeal is filed beyond the prescribed period of limitation and an application for condonation of delay is not filed, the appellate authority does not get jurisdiction to allow the appeal on merits. With respect, ratio of the said judgment will not be applicable to the present case since Section 70-A of the MPT Act does not prescribe any limitation for filing revision and, as such, question of filing application for condonation of delay does not arise.
In the case of Hidayatkhan (supra), several changes had occurred in the Trust in the year 2001 and several Change Reports were filed, which were accepted by different orders passed on time to time. Thereafter, dispute arose between the members of the Trust and application for revision was filed in October, 2003 in order to question validity of elections held in the year 2001. The Hon’ble Supreme Court has while dealing with Section 70-A of the MPT Act, held that although the said provision does not prescribe any limitation, the power could not be exercised after an inordinate delay. Perusal of the judgment will indicate that after the elections were held, around 82 meetings were held and respondent No.1 in the said case, who had filed revision application had participated in almost all the meetings. It was also found that appeal was, in fact, preferred, which was not entertained on the ground that it was barred by limitation and thereafter revisional jurisdiction was invoked. The facts of the said case are also clearly distinguishable. However, at the same time, it must be stated that the legal principle is that although limitation may not be prescribed for filing of appeal or revision, the appellate or revisional authority must not exercise such jurisdiction after an inordinately long period. The jurisdiction must be exercised within a reasonable period only. The judgment of this Court in the case of Dadasaheb (supra) also reiterates the same legal principle.
In the present case, admittedly, the revision applications are filed after a period of around nine months after the order accepting the Change Report was passed. However, perusal of the order passed by the learned DCC will demonstrate that, except for petitioner No.1, who is the reporting trustee, no other person was arrayed as respondent. Notices were not issued to the other outgoing and incoming trustees under assumption that the Change Report was an uncontested Change Report. Reliance is placed upon consent letter, letter of NOC, Affidavit of reporting trustee, etc., while allowing the Change Report. Even public notice as contemplated under Section 7A of the MPT Rules is not issued before allowing the Change Report. Since the Change Report is decided without individual notices to other members/trustees and also without issuance of public notice, in the considered opinion of this Court, the contention with respect to delay cannot be accepted in the peculiar facts of the present case. It will be appropriate to refer to Hirabai Baburao Shidankar and Another Vs. Rayat Shikshan Sanstha, Satara and Others4, wherein it is held that in case where a proceeding is decided without notice to the affected party, question of delay becomes inconsequential in the appeal or revision.
It will also be appropriate to refer to National Egg Co-Ordination Committee Vs. The State of Maharashtra through the Charity Commissioner and Others5 (paragraph 27), wherein with respect to Section 70-A of the MPT Act, a period of three years is said to be normally a reasonable period within which revision application can be filed. The Hon’ble Supreme Court has in Santoshkumar Shivgonda Patil and Others Vs. Balasaheb Tukaram Shevale and Others,6 held that reasonable period for filing revision under Section 257 of the MLR Code, 1966 should ordinarily be taken as three years.
The learned JCC has predominantly allowed the revision on the ground that the election was held with participation of newly inducted members by the ad hoc committee which does not have authority to induct new members. It is held that the authority to induct members is vested with the Executive Committee Members, however, since the tenure of Executive Committee had expired it was also not competent to induct new members. The learned JCC has held that it was necessary for the ad hoc committee to file application under Section 47 of the MPT Act for appointment of two members because the members were to become members of Executive Committee of the Trust as well.
An ad hoc body appointed by the authorities under the MPT Act is only supposed to manage the affairs of the Trust as a stop-gap arrangement. The ad hoc body does not have authority to take major decisions like induction of members.
Mr. Salunke, however, argues that, since the earlier Change Report was rejected on the ground that in place of nine members to be elected in the Executive Committee, only seven members were elected and the Trust comprises of seven members only, the authority to induct at least two more members is implicit in the earlier order rejecting the Change Report and appointing ad hoc body, since the ad hoc body was appointed only for the purpose of conducting elections. He, therefore, argues that the learned JCC has erred in rejecting the Change Report on the ground that the ad hoc body has inducted members without authority. The learned advocate would further argue that the induction of new members was also impliedly approved by all the members, including respondent Nos.1 to 3, who had filed the revision petition, since they had participated in the elections alongwith the six newly inducted members.
The contention that power to induct new members can be inferred in view of earlier order is difficult to accept. The order does not expressly confer any such authority. Even otherwise, it is well settled that an ad hoc body appointed cannot be equated with regular Executive Committee/Board of Trustees of a registered public trust. The ad hoc body, cannot therefore, assume the power of Executive Committee of inducting new members in the Trust. Such power is not expressly granted. It is difficult to assume that such a power is granted by implication. Even otherwise, a judicial or quasi judicial order cannot confer upon any person or authority a power which otherwise is not vested with it.
As regards the contention that by participating in the elections along with the newly inducted members, all the existing members had ratified the induction of the said members, it must be stated that as per the Trust Deed power to induct members in the Trust is vested with the Executive Committee. The tenure of Executive committee had expired long back. The Executive Committee did not exist as on the date of election. It is true that all the seven members of the erstwhile Executive Committee were the only members of the Trust, Yet the General Body does not have authority to induct members as per constitution of the Trust. Even if it is assumed that by participating in the election along with newly inducted members, all the general body members had, by implication, accepted membership of newly inducted members, yet the newly inducted members cannot be said to be validly inducted, since the general body does not have power to induct members. What cannot be done expressly by the General Body cannot be done by its members by implication.
It will also be appropriate to reiterate settled legal principle that when the initial act or order is without authority, the same be ratified by a person or committee competent to take such decision or perform such act. Reliance in this regard, can be placed on Division Bench judgment of this Court in the case of College of Engineering of Yeshwant Rural Education Society Vs. Mrs. Asmita Basole and anr.7
In the light of aforesaid, the contention that the six members were legally inducted members or their induction was ratified subsequently cannot be accepted.
In the light of reasons recorded above, the petitioners have failed to make out any case for interference. Writ Petition is, therefore, dismissed with no orders as to costs.
It is, however, clarified that it will be open for the members of the Trust to take recourse to such proceedings as it may be deemed appropriate for constitution of proper Executive Committee, other than the one referred by the learned JCC in the impugned order.
At this stage, learned advocate for the petitioners states that vide order dated 03.02.2022, this Court had directed the parties to maintain status-quo. The learned advocate prays that status-quo with respect to management of the Trust may be extended for a period of eight weeks in order to enable the petitioners to approach the Hon’ble Supreme Court. Respondent Nos.1 to 3 have not contested the petition on merits. The interim order passed earlier is operating for over four and a half years.
In view of the above, it is directed that status-quo with respect to management of the Trust shall be maintained till 12.12.2026.