Avinash vs Ganpat Govind Joshi and Others

Z.A. Haq, J.—The petitioner has challenged the order passed by the learned Joint Charity Commissioner exercising his powers under Section 41A of the Maharashtra Public Trusts Act, 1950 (hereinafter referred as "the Act of 1950"). The learned Joint Charity Commissioner has permitted the Election Officer appointed by him, to accept the applications for enrolment of new members.

In First Appeal No. 351 of 1998 filed before this Court, the order passed in proceedings for framing of Scheme was challenged. This Court modified the Scheme framed under Section 50A of the Act of 1950 by modifying Clause 7 of the Scheme. The modified Clause 7 of the Scheme as per the directions of this Court is as follows :--

"I. The patrons of the trust shall elect from amongst themselves one member of the Board of Management.

II. The life members of the trust from amongst themselves shall elect two members on the board of Management.

III. The ordinary members of the trust shall from amongst themselves elect eight members on the Board of Management.

IV. The Board of Management so elected shall at its first meeting held after the election, elect its Chairman from amongst the members of the Board of Management."

The First Appeal came to be decided by the judgment dated 10th of September, 1998.

At that stage there was no Board of Trustees and it transpired that looking to the nature of the Trust it would be appropriate that the Board of Trustees should be constituted and the constitution of the First Board of Trustees should be by the authorities under the Act. In the situation which prevailed at that time, this Court issued directions to the Joint Charity Commissioner to take steps for constituting first Board of Trustees by elections. Accordingly, directions were issued vide paragraph No. 6 of the judgment, as follows :

"6. Presently, there is no elected board of Management in place. Therefore, for holding the first elections to the board of management, the Joint Charity Commissioner is directed to make provisions in the light of the following directions :--

a) The Joint Charity Commissioner shall immediately appoint an officer of the rank of the Assistant Charity Commissioner to be in charge of the affairs of the trust till the process of election is completed and the elected board of management is in a position to take over the management of the affairs of the trust. The Joint Charity Commissioner may appoint not more than three persons, whom he finds to be fit, to assist the Assistant Charity Commissioner in carrying out the management of the affairs of the trust. This ad-hoc body with an officer of the rank of Assistant Charity Commissioner at its head, apart from carrying on the day to day administration of the trust, shall also be competent to accept application for membership of various categories and also subscription from the applicants for membership. They shall not take any policy decisions which shall involve the trust in any major financial liability. They shall also not make any appointment of employees in the trust.

b) It is further directed that the officer so appointed shall fix a date and publish it in the newspaper bringing it to the notice of the public that the applications for membership can be made by the date. She shall also notify to the public the amount that is required to be paid for different categories of members. The applications received by the officer shall be scrutinized by the officer and after the last date, the papers be placed before the Joint Charity Commissioner for finalizing the question of grant of membership to the applicants, after considering any objections that may be received by the Joint Charity Commissioner.

c) After completing the process of membership, the officer shall publish an election programme for holding elections to the Board of Management. The Joint Charity Commissioner would be competent to give any direction required to be given for this purpose to the officer to be appointed. The Joint Charity Commissioner shall ensure that the process of admitting persons to membership of the trust and holding of elections is completed on or before 31st December, 1998 so that the elected board of Management can take over immediately thereafter."

Pursuant to the directions given by the Court, the process was undertaken and an ad hoc body was appointed by the Joint Charity Commissioner, the head of the ad hoc body being Assistant Charity Commissioner. The Assistant Charity Commissioner issued notice informing public at large about the enrolment of new members of the Trust. About 1829 applications were received for different categories of membership i.e. Patron Member, Life Member and Ordinary Member. The elections for the Board of Trustees were held in 1998 in which 1829 members, whose applications were received by the Assistant Charity Commissioner, voted. Change Report intimating the change which had occurred as per the elections was filed before the Assistant Charity Commissioner. It was registered as Change Report No. 1819 of 1998. As per Clause 11 of the Scheme, the tenure of Board of Trustees is of five years. The Change Report filed before the Assistant Charity Commissioner intimating the change which occurred due to the elections conducted in 1998 could not be decided till the tenure of the Board of Trustees came to an end in 2003. As the elections were due, the Board of trustees which was in the office, held elections in 2003. In these elections, again 1829 members who had applied for membership in 1998, had voted and the Board of Trustees came to be elected. The Change Report was filed before the Assistant Charity Commissioner intimating the change which occurred in 2003. The Change Report was registered as Change Report No. 894 of 2004. This Change Report also could not be decided till 2008 i.e. when the tenure of the elected Board of Trustees was to come to an end. The Change Report No. 1819 of 1998 and the Change Report No. 894 of 2004 were decided on 7th of August, 2008 and both these Change Reports were rejected. One of the reasons given by the Assistant Charity Commissioner for rejecting the Change Report was that the enrolment of 1829 members was not legal. The order passed by the Assistant Charity Commissioner rejecting the Change Report came to be challenged in Appeal No. 34 of 2008 under Section 70 of the Act of 1950, which was dismissed. The order passed by the Joint Charity Commissioner was challenged in Misc. Civil Application No. 5 of 2009 under Section 72(1) of the Act of 1950 before the District Court. This application was also dismissed on 10th of August, 2009. The order passed by the District Court was challenged before this Court in Second Appeal No. 501 of 2009.

In the meantime, as no elections were possible in absence of valid members an application was filed under Section 47 of the Act of 1950 before the Joint Charity Commissioner praying for appointment of ad hoc Trustees as the tenure of the Body which was elected in 2003 was over and the Change Report intimating the election of the Board of Trustees in 2003 was also dismissed. The learned Joint Charity Commissioner by the order dated 9th of December, 2010 appointed an ad hoc body to look after the affairs of the Trust. Said ad hoc body continues till today.

The Second Appeal No. 501 of 2009 is decided by this Court on 27th of February, 2014. The order passed by the Assistant Charity Commissioner and maintained by the Joint Charity Commissioner and the District Court, rejecting the Change Report No. 1819 of 1998 came to be set aside and the matter came to be remitted to the Joint Charity Commissioner for considering the representation of the appellant in Second Appeal No. 501 of 2009 staking claim for membership of the Trust. This Court found that the claim of the membership of the appellant in the Second Appeal was rejected as Clause 6 of the Scheme requires that the person who wants to be a member should pay more than or above Rs. 1000/- to become an ordinary Member, more than or above Rs. 10,000/- to become a life Member and more than or above Rs. 1,00,000/- to become a patron Member and the appellant had paid Rs. 1000/- and he did not fulfill the requirement as per Clause 6 of the Scheme. This Court concluded that the applicants seeking membership had paid Rs. 1000/- or Rs. 10,000/- or Rs. 1,00,000/- along with their applications as the notice which was published by the Assistant Charity Commissioner stated that the applicant should pay that amount and the question was only of non-payment of Re. 1/- above Rs. 1000/- or Rs. 10,000/- or Rs. 1,00,000/- which defect could have been rectified by the applicants who were otherwise eligible to become member of the Trust. After remand by this Court, the learned Joint Charity Commissioner dismissed the appeal No. 34 of 2008 upholding the rejection of Change Report No. 1819 of 1998. However, in consonance with the directions given by this Court in the judgment given in Second Appeal No. 501 of 2009, the learned Joint Charity Commissioner permitted the members who were enrolled, to pay the deficit subscription amount for continuing as the legal and valid member of the Trust.

The learned Joint Charity Commissioner appointed the Assistant Charity Commissioner Nagpur as an Election Officer to conduct the election of the Board of Trustees and permitted the Election Officer to accept the applications for new membership after publishing notice. These directions given by the Joint Charity Commissioner permitting the Election Officer to accept the applications for enrolment of new members are challenged before this Court.

Shri Anand Jaiswal, learned Senior Advocate appearing for the petitioner has submitted that Joint Charity Commissioner has exceeded his jurisdiction by permitting the Election Officer to accept the applications for enrolment of new members. It is submitted that while deciding the Appeal No. 34 of 2008, the learned Joint Charity Commissioner should have examined the legality and validity of the order passed by the Assistant Charity Commissioner in the light of the observations and directions given by this Court in Second Appeal No. 501 of 2009. It is further urged that the Assistant Charity Commissioner while acting as an Election Officer cannot enroll new members and if it is permitted, it would be violating the right of the members of the Trust, to form association. In support of the submission, reliance is placed on the judgment given by the Hon''ble Supreme Court in the case of Smt. Damyanti Naranga Vs. The Union of India (UOI) and Others, , is relied upon.

Per contra, Shri P.A. Gode, learned advocate for respondent Nos. 19, 20, 24, 25, 26, 27 and 31 (members of ad hoc body) has submitted that the order passed by the Joint Charity Commissioner permitting the Election Officer to enrol new members cannot be faulted with. Shri Samarth, Shri A.P. Thakre, Shri D.V. Chauhan, Shri N.D. Khamborkar and Shri Abhay Sambre Advocates appearing for the respondents/ applicants in civil applications, have opposed the claim of the petitioner. The main contention on behalf of the respondents is that the Joint Charity Commissioner has rightly exercised the jurisdiction under Section 41A of the Act and considering that the Change Reports intimating the changes which occurred in 1998 and 2003 have been rejected, it has to be treated that the first Board of Trustees is being constituted after the judgment of this Court in First Appeal No. 351 of 1998. It is submitted that as first Board of Trustees is being elected, the directions given by this Court, as incorporated in paragraph No. 6 of the judgment are to be implemented and the learned Joint Charity Commissioner has permitted the Election Officer to enrol new members, which directions are in consonance with the directions given by this Court. The judgment given in the case of Damyanti (supra) is distinguished on the ground that the petitioner and the other members of the Trust are also newly enrolled members who had made the applications in the year 1998 and who are granted enrolment on payment of deficit amount, by the same order dated 6th of April, 2015 and there is no founder member of the Trust.

Shri Samarth, learned Advocate for the respondents, has submitted that the directions given by this Court in paragraph No. 6 of the judgment given in First Appeal No. 351 of 1998 will apply when the elections of the Trust are to be conducted and to substantiate this submission the learned Advocate has relied on paragraph No. 5 of the judgment which provides that when the elections are due, the Joint Charity Commissioner shall appoint at least six months before expiry of the tenure of existing Board of Trustees an Officer of the rank of Assistant Charity Commissioner as the Election Officer for holding the elections, It is submitted that the order passed by the Joint Charity Commissioner permitting the Election Officer to enrol the new members cannot be said to be illegal or improper.

Shri Thakre, learned Advocate for the respondents has submitted that the judgment given in the case of Damyanti is distinguishable as in the reported case the Hon''ble Supreme Court dealt with the case of the Society registered under the Societies Registration Act, 1860, whereas in the present case the issue is about membership of a public trust registered under the provisions of the Act of 1950. Referring to the provisions of Section 2(13) of the Act, it is submitted that the Trust is a religious Trust and the membership of it cannot be restricted and it has to be open for all the persons who fulfill the requirements as per Clause 6 of the Scheme.

Shri Thakre, learned Advocate has submitted that the Joint Charity Commissioner has the powers to permit the enrolment of new members as he is a trustee of the Trust as per the provisions of Section 69K of the Act of 1950.

Shri D.V. Chauhan learned Advocate in Civil Application No. 1571 of 2015 and Shri P.B. Patil, learned Advocate for applicant in Civil Application No. 1572 of 2015 have also adopted the arguments made by the other Advocates representing the respondents. But, in addition, they have relied on the judgment given by the Division Bench of this Court in the case of Maha Pragya Vidya Nidhi Foundation and Another Vs. State of Maharashtra and Others, and the judgment given by this Court in the case of Lahudas Sambhaji Karad Vs. The State of Maharashtra and Others, .

Smt. Bharti Dangre, learned Government Pleader has made submissions almost on the same lines as made by the learned Advocates for the respondents.

After considering the submissions made by the learned Advocates for the respective parties, we find that the matter is required to be considered in the light of the judgments passed by this Court in First Appeal No. 351 of 1998 and Second Appeal No. 501 of 2009. As already recorded, this Court permitted the enrolment of new members in 1998 as there were no members of the Trust at that time. The dispute about the eligibility of the members who are enrolled pursuant to the directions given by the Court in First Appeal No. 351 of 1998 continued and has been finally crystallized by the judgment given by this Court in Second Appeal No. 501 of 2009. This Court while deciding the Second Appeal No. 501 of 2009 found that the persons who had submitted applications in 1998 have not been considered as legally enrolled members for non-payment of Re. 1/- above the amount of Rs. 1,000/-, Rs. 10,000/- or Rs. 1,00,000/-, which they had paid. This Court remitted the matter to the Joint Charity Commissioner with directions to give an opportunity of hearing to the appellant in Second Appeal No. 501 of 2009 and to decide his representation according to law. Pursuant to the directions given by this Court, the learned Joint Charity Commissioner has recorded that the members who are already enrolled, should pay deficit subscription amount for becoming legal and valid members of the Trust. It is undisputed before us that 680 members have been found to be properly enrolled members, after payment of deficit subscription amount.

This Court while deciding Second Appeal No. 501 of 2009 on 27th of February, 2014 has indicated the approach to be adopted in para No. 9 which reads:--

"I must consider this as an exceptional case wherein interference is felt necessary. Really speaking small difference of a rupee can be mutually rectified between the member and the public Trust. The Court ought to note that the venerable maxim ''de minimis non curat lex'' (''the law cares not for trifles'') is part of the established reasonable legal principle which all enactments have adopted, or otherwise also which all enactments are deemed to accept. The difference of one rupee is so trivial and small. Such little short of discountable petty amount could have been ignored in the modern day context to get more memberships for serving the charitable objects of the Trust. Hence, such minimal sum must not change the nature and status of membership of the charitable Trust by donations, patron, life and ordinary as the case may be, merely for the non-payment for a very small or fractional difference of a rupee particularly in a situation when the member concerned is voluntarily ready and willing to pay the difference. Reasonable and rational view should be taken in such matters so as to ensure that object of the donor/contributory to serve the Trust as an appropriate member is served in larger public interest."

It is therefore apparent that enrollment of these 680 members since 1998 was not void ab initio and it got regularized with payment of "Re.1/-" more/above the prescribed sum. These members were not at fault and hence the membership of these 680 members has to be treated to be effective from 1998.

In view of our conclusions, as recorded above, that 680 members exist, in our view the enrolment of new members by the Election Officer cannot be permitted. The direction given by this Court in First Appeal No. 351 of 1998 permitting the enrolment of new members was in the situation which prevailed in 1998 i.e. there were no members of the Trust. However, at present, as there are 680 members of the Trust the enrolment of new members by the Election Officer cannot be permitted. These members have participated in 1998 as also 2003 elections. Thus vacuum i.e. lack of members in 1998 which prompted a direction to allow new enrolment did not exist. This should not be taken to mean that there cannot be enrolment of new members at all. The enrolment of new members can be as per Clause 6 of the Scheme. The new members cannot be enrolled by the Election Officer who is a stranger to the Trust and is concerned with the Trust only for limited purpose for conducting the elections in terms of the provisions of the Scheme. Only because the Election Officer happens to be the Assistant Charity Commissioner, it does not mean that the Election Officer can exercise the powers of the Assistant Charity Commissioner under the Act of 1950. While performing the duties of the Election Officer appointed for the purposes of conducting the elections of the Trust, the Election Officer (though in this case it is the Assistant Charity Commissioner) has to perform the duties as per the terms of his appointment. In view of above, the submission made by Shri Thakre Advocate relying on the provisions of Section 69(K) of the Act of 1950 cannot be accepted. The Election Officer appointed for specific purpose while performing his duties accordingly, cannot be considered as the Assistant Charity Commissioner entitled to discharge his statutory duties under the provisions of Act of 1950. He cannot defeat the membership till then regulated by a public trust in terms of its Scheme and constitution.

The reliance upon the directions of this court in its judgment in First Appeal No. 351 of 1998 dated 10.09.1998 to support the exercise of adding new members is equally misconceived. The learned Single Judge of this Court while deciding the appeal noted the unanimity amongst parties before him on need to modify the method of appointing Trustees by the Charity Commissioner. It was felt that the members of Trust should be given right to elect members of Board of Management. This fact and agreement find mention in para 3 of said judgment. The parties agreed that the entire Board of Management should be elected from the members who were duly enrolled as members of Trust. Thus, the parties as also this Court then recognized the need to usher democratic set up in the administration of trust. In view of this need in para 4, directions were issued to modify the Board of Management by Joint Charity Commissioner and those (IV) directions are mentioned by us at the beginning in para 2 of the judgment. A direction to introduce clause for providing of election regularly was also introduced and a time bound completion of election process before expiry of term of existing Board of Management was also mandated. As there was no Board of Management, for electing that first Board in para 6, again further directions were issued. The Board to be nominated was restrained from taking any policy decision involving financial liability and they were also restrained from making any appointment on employment of Trust. In this background, a direction to publish in Newspaper inviting applications for membership and its scrutiny was made. This direction accordingly modified the scheme framed on 30.07.1996 for the Trust in proceedings under Section 50A(i) of Maharashtra Public Trusts Act, 1950. The said scheme was modified in the background of directions mentioned supra. The modified scheme, therefore, does not envisage publication of advertisement inviting applications for membership when members and General Body is available to take care of the situation. The modification does not mandate that when the General body is available, the Election Officer should exercise the powers to publish advertisement and add members. In present matter, in 1998, 1829 members were enrolled and out of them 680 members have been found valid. As such, addition of members several times definitely unsettles the democratic set up. The applications for membership received by Election Officer are to be scrutinized by him and then grant of membership has to be finalized by the Joint Charity Commissioner. Thus, new members get voting right. It is noted that ad-hoc body contemplated in clause 10 was also authorized to accept the applications for membership of various categories. In this case, after 1998 drive of memberships in which about 1829 persons were given membership and till finding of only 680 out of them to be valid members, no person has been added as member. The directions contained in the judgment of the learned Single Judge dated 10.09.1998 in para 6 uses the word "presently", "first elections" and vide clause (c) mandate completion of election process before 31.12.1998. Scheme came to be modified accordingly. The fetters put on ad-hoc body vide judgment para 6(a) need to be viewed in this background. Thus, this provision is intended to be only transitory in the nature and not to govern the regular elections when General body members are available in sufficient number to democratically elect the Managing Committee.

During the course of arguments we were informed that after the impugned order, more than 11000 applications have been received for enrolment as members of the Trust. Enrollment in such large number may militate with the design of existing members and administration of Trust. If the enrolment of new members is permitted at such a stage it will perhaps be never ending affair. Challenge to such membership as in this petition may remain pending and again, when elections are envisaged, new enrolment may follow. Trust will not have the legally elected body. In 1998, when enrolment of new member was permitted, the situation was different as there were no members of the Trust at that time. However, at present 680 members of the Trust exist and they are associated with Trust since 1998.

Therefore, the petition is to be allowed. Clause 4 of the operative part of the impugned order is set aside.

The directions given by the learned Joint Charity Commissioner permitting the Election Officer to enrol new members are quashed. It is directed that the elections of the Trust shall be conducted as per the Scheme of the Trust considering enrolment of 680 members whose enrollments are regularised after they paid the deficit amount of subscription. The Election Officer shall conduct the election of the Trust by completing the process within three months.

At this stage, Shri D.V. Chauhan, Advocate requests that the judgment be kept in abeyance for six weeks to enable the applicants in Civil Application No. 1571 of 2015 to take appropriate steps.

The judgment shall be given effect after six weeks from today.