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Judgment
First Appeal No.224 of 2018 is filed by the reporting trustee against the Judgment of Adhoc District Judge-1, Yavatmal, dt.19/12/2009 in M.J.C.
No.72 of 2007. The appellants in First Appeal No.225 of 2018 are claiming that they are life members of the trust since December, 2005. They have
challenged the said Judgment of Adhoc District Judge-1, Yavatmal in M.J.C. No.72 of 2007, by which the order passed by the Joint Charity
Commissioner in Appeal No.29 of 2007 is quashed and set aside and the Judgment of Assistant Charity Commissioner, Yavatmal in C.R. No.104 of
2006 is restored.
The facts giving rise to both the appeals are common and hence, they are disposed off by this common judgment. The material facts, in short, are as
under:
Appellant Ramesh Gangadhar Dongre had filed Change Report in respect of Jijau Shikshan Samiti, Yavatmal having Registration No.F/902/Yavatmal
and had reported change to the Assistant Charity Commissioner. The Change Report was registered as F-902. Ramakant Kolte, Shankar Sangle,
Dinkar Wankhade, Prabhakar Sahastrabuddhe, Anant Atrawalkar, Murlidhar Raut i.e. respondent nos. 16 to 21 (in F.A. No.224 of 2018) objected the
Change Report vide Exh.21. Both the parties adduced their evidence.
The Assistant Charity Commissioner recorded its findings holding that the notice for meeting dt.5.12.2005 was not issued before 15 days of the said
meeting as per bye-laws of the Society and therefore, induction of new life members i.e. appellants in First Appeal No.225 of 2018 is illegal. The
Election Officer has not conducted proper elections and therefore, Change Report bearing Enquiry No.104 of 2006 was rejected and the President of
the Society was directed to take election in-consonance. The said order was challenged before the Joint Charity Commissioner, Amravati. The joint
Charity Commissioner, Amravati in Appeal No.29 of 2007, vide order dt.13.9.2007 quashed and set aside the Judgment of Assistant Charity
Commissioner and accepted the Change Report holding that previously short notices were issued and therefore, notice issued for the meeting
dt.5.12.2005 is legal and proper.
The objectors challenged the Judgment of Joint Charity Commissioner before the District Judge, Yavatmal by filing M.J.C. No.72 of 2007. The
Adhoc District Judge-1, Yavatmal quashed and set aside the Judgment of Joint Charity Commissioner, Amravati and restored the Judgment of
Assistant Charity Commissioner, Yavatmal. Hence, these both appeals by the reporting trustee and newly elected members as per the meeting
dt.5.12.2005.
Heard Mr.N.S.Deshpande, learned Counsel for the appellants in First Appeal No.224 of 2018 and Mr.H.D.Marathe, learned Counsel for the
appellants in First Appeal No.225 of 2018. They have submitted that there is no specific provision in the bye-laws of the Society as to the election of
life members. Learned Counsel have submitted that previously also the notices were issued 2-3 days before the meetings and therefore, there was no
illegality in calling the meeting on 5.12.2005. Therefore, the impugned Judgment passed by the Adhoc District Judge-1, Yavatmal in M.J.C. No.72 of
2007, dt.19.12.2009 is liable to be quashed and set aside.
Heard Mr.Anil Kadu, learned Counsel for respondent nos. 16 to 19, 20 and 21 in First Appeal No.224 of 2018 and for respondent Nos.9 to 14 in
First Appeal No.225 of 2018. He has pointed out evidence of reporting trustee Ramesh Dongre. He has pointed out bye-laws of the Society filed on
record at page no.105. Learned Counsel has submitted that, as per the bye-laws, the period of Executive body was for five years. The election of
Executive body is to be held every five years by the members of the General body. He has pointed out clauses (7), (8), (12), (13) and (14) of the bye-
laws and submitted that, as per clause (14), the General body meeting is to be called after giving 15 days’ notice once in a year. Mr.Ramesh
Dongre, who was not the elected Secretary, was not authorized to issue notice for the meeting dt.5.12.2015. The learned Counsel has pointed out
clause (11) of the bye-laws and submitted that the President of the Society is authorized to issue notice of General body meeting of Executive body
and also of Annual General Meeting. Learned Counsel Mr.Kadu has submitted that, out of 13 life members, only 10 life members are there including
the objectors. The reporting trustee played mischief by issuing notice of General Body meeting dt.5.12.2005. One of the objectors did not receive
notice and there is no signature of one of the objectors on the notice. The notice for the meeting dt.5.12.2005 itself is illegal. He has pointed out Exh.
Nos.55 and 80 before the Assistant Charity Commissioner. Learned Counsel has submitted that there was no any agenda in the meeting dt.5.12.2005
for the election of new members. Exh.55 is the Office copy of the Society maintained by reporting trustee. The word ‘General (Aam)’ is added
latter on.
Learned Counsel Mr.Kadu submitted by showing notice (Exh.80), which was received by one of the objectors, that there is no word therein about
General (Aam) meeting. The learned Counsel has further submitted that the notice in respect of meeting dt.5.12.2005 was issued on 2.12.2005 i.e.
three days before the said meeting. As per clause (14), notice of the General Body meeting has to be issued 15 days before the meeting (Aam). The
notice was issued by the Secretary. He was not authorized as per clause 11 to issue notice. Notices (Exh.55 and 80) filed on record, dt.2.12.2005
itself are illegal.
Learned Counsel Mr.Kadu pointed out that the reporting trustee/appellant has confirmed the agenda of the meeting dt.5.12.2005 in the meeting
dt.16.1.2006. The learned Counsel has pointed out Exh.57. This notice show that there was no any agenda about confirmation of minutes in respect of
election of new life members in the meeting dt.5.12.2005. The appellant/reporting trustee confirmed the agenda of meeting dt.5.12.2005 in the meeting
dt.16.1.2006. This is illegal.
Learned Counsel has pointed out other documents and submitted that, on 9.2.2006, the objectors Mr.Dinkar Wankhede, Murlidhar Raut etc. sent
letter to President Dr.Ramakant Kolte and in the said letter, it was pointed out that, in the meeting dt.16.1.2006, it was decided to hold elections on
6.2.2006. But the Secretary endorsed on the said letter stating that he was required to go to pune and therefore, he could not do the same. The
objectors by letter dt.6.3.2006 demanded the list of members, but the said letter is not replied. The list was not supplied. On 17.3.2006, all the objectors
informed the President and Secretary of the Society stating that they will remain present in the library of the College on 20.3.2006 at about 11.00 a.m.
and they be allowed to inspect the documents of the Society. They remained present on 20.3.2006, but documents were not made available by
reporting trustee (Secretary Mr.Dongre). Letter dt.20.3.2006 shows that the Objectors were present in the library. The Principal and Accountant of
the Jijau College made an endorsement that they were present on 20.3.2006.
Learned Counsel Mr.Kadu has submitted that Secretary Mr.Dongre was not holding the Post as Secretary. He was not elected as Secretary. He
made forgery in the documents. He had issued illegal notice without any authority. 15 days’ notice as required as per bye-laws not issued for the
General meeting dt.5.12.2015. At last, it is submitted that election of the newly elected life members in the meeting dt.5.12.2015 is illegal. The
confirmation of minutes in the meeting dt.16.1.2006 is also illegal. There was no agenda in the meeting dt.5.12.2015 about the election. There was no
agenda of confirmation of minutes of the meeting dt.5.12.2015 in the meeting dt.16.1.2006. At last, it is submitted that, the Assistant Charity
Commissioner, after verifying the evidence on record, rightly came to the conclusion that the Change Report was not legal and proper and therefore,
rejected the same. The Joint Charity Commissioner reviewed his own findings and wrongly set aside the findings recorded by the Assistant Charity
Commissioner. Learned Counsel has strongly supported the impugned Judgment passed by the District Judge, Yavatmal in M.J.C. No.72 of 2007.
In support of his submissions, Mr.P.A. Kadu, learned Counsel has pointed out following documents:
a) Bye-laws of the Society.
b) Notice (Exh.55).
c) Notice (Exh.57).
d) Notice (Exh.80).
e) Letters sent by objectors to the appellant.
f) cross-examination of Mr.Dongre, & other documents.
The dispute is in respect of Annual General Meeting dt.5.12.2015. Therefore, the bye-laws of the Society are very material. As per clause (7) of
the bye-laws, election of Executive body is to be held after every five years. The notice in that respect is to be given 15 days prior to the meeting. As
per clause (8), the period of Executive body is of five years, but if the new body is not elected after five years, then the existing Executive body looks
after the affairs of the Society till the election of new Executive body. As per clause (11) of the bye-laws, the President of the Society is authorized to
issue notice for Executive body and Annual General Meetings. As per clauses (14), 15 days’ prior notice is to be given to all the members for
calling Annual General Meeting.
The evidence of Secretary Mr.Dongre is very material. In his cross-examination, he has admitted all the material facts which are supporting to the
objectors. Before the Assistant Charity Commissioner, reporting trustee Mr.Ramesh Dongre examined himself at Exh.23, the Election Officer
Mr.Arvind Yashwantrao Deshpande at Exh.84 and closed their side. Objector Ramakant Kolte examined himself at 187 and Anant Shriram
Attawalkar at Exh.286 and closed their side.
Cross-examination of Ramesh Dongre shows that he had not supplied the list of members to objectors. He has specifically admitted in his cross-
examination that Since 1984 there was no any change. There was no any resolution before meeting dt.5.12.2005 for induction of new members. He
has admitted his signature on the notice (Exh.80) dt.2.12.2005. He has admitted that there is no word written in Exh.80 about the General Meeting. He
has stated that there was no any agenda in notice (Exh.80) about induction of new members. He has admitted that word ‘Aam (general)’ is
inserted in the notice (Exh.55), dt.2.12.2005 later on. There is no signature of one of the objectors on Exh.55 in front of his name. There is difference
of signature of one of the objectors namely Atrawalkar in front of his name. Only the life members have signed on Exh.55 i.e notice dt.2.12.2005.
There is no evidence to show that objectors (life members) were served with notice (Exh.55), dt.5.12.2005. He has admitted that there was no any
General Body meeting on 5.12.2005. There was no any publication about election on 5.12.2005. He has admitted that there is whitener patch in front
of name of one of the objectors. He has admitted that, in the Proceedings Book, only 118 pages are there and as per the Certificate on the
Proceedings Book, there were 144 pages.
Evidence of Ramesh Dongre clearly shows that he has not followed the bye-laws. It was mandatory to give 15 days’ prior notice for Annual
General Meeting, but he has issued notice on 2.12.2015 for the Annual General Meeting on 5.12.2015. The reporting trustee Mr.Dongre on 5.12.2015
inducted 10 new members and the agenda of meeting dt.5.12.2005 was confirmed in the meeting dt.16.1.2006. The cross-examination clearly shows
that he has played mischief only to debar the rival life members (objectors) from taking any part in the meeting dt.5.12.2005. As per his admission, in
the notice dt.2.12.2005 (Exh.80), there is no mentioned of words ‘Annual General Meeting’, but in Exh. No.55, he has inserted word ‘Aam
(General)’ later on. There was no agenda in the meeting dt.5.12.2005 about induction/election of new life members. Only two subjects were
shown in the meeting dt.5.12.2005 in Exh.55. Those are as under:
In respect of E.P.F. (Employees’ Provident Fund) Scheme.
Subjects coming with the permission of President.
In respect of Annual General Meeting dt.16.1.2006, there were only four subjects in the notice (Exh.57):
1) to approve the cost of construction and construction map,
2) to discuss about gratuity of the employees,
3) to discuss about election of new Executive body,
4) the subjects coming with the permission of the President.
In the meeting dt.16.1.2006, there was no any agenda about the approval of elected new life members on 5.12.2005, even though the reporting
trustee Mr.Dongre submitted his report that agenda in respect of election of new ten members in the Annual General Meeting dt.5.12.2005 was
confirmed in the meeting dt.16.1.2006. There is no dispute that the letter issued by the objectors in respect of election and for supplying of material
documents were not replied by the reporting trustee.
As per the bye-laws, the notice issued on 2.12.2005 for Annual General Meeting on 5.12.2005 is itself illegal. The life members/objectors and
others were not knowing as to whether it was a Annual General Meeting or an Executive body meeting. As per the bye-laws, more particularly clause
(14) thereof is not followed while issuing notice dt.2.12.2005. Therefore, confirmation of minutes in the meeting dt.16.1.2006 in respect of agenda in
the meeting dt.5.12.2005 is illegal.
Learned Counsel Mr.Kadu has pointed out decision of Apex Court in the case of Bahadursinh Lakhubhai Gohil .vs. Jagdishbhai M. Kamalia and
Others reported in AIR 2004 SC 1159, wherein it is observed that subsequently on election of Standing Committee, allegedly a resolution was passed
to incorporate the name of the respondent no.7 in the lease register despite absence of the proposal for consideration of the applications filed by the
respondent No.7 in an agenda purported to have been circulated for meeting of the members of the Standing Committee. Though the order passed by
resolution of Standing Committee was rejected earlier, the matter was not placed even on agenda of meeting. It was held by the Hon’ble Apex
Court that “the matter was considered showing undue haste. Public interest was given complete go-by and valuable public property was doled out
at the behest of those who were bound to protect the same and therefore, it is liable to be set aside.â€
In the present case, there was no any agenda in the meeting dt.16.1.2006 for approving names of newly inducted life members held in the meeting
dt.5.12.2005 and therefore, approval of the same on 16.1.2006 is illegal. Mr. Kadu, learned Counsel has pointed out that, as per clause (7) and (8) of
the bye laws, the election of Executive body has to be held in every five years. The Executive body will look after day today work of the society till
election of new body.
As per admission of Ramesh Dongre, since 1984 there was no election of Executive body or for inducting new life members. Therefore, the
Executive body was not authorized to hold elections by issuing illegal notice dt.2.12.2005.
As per admission of Ramesh Dongre, he was not shown as Secretary in the PT Register, even though he acted as a Secretary and issued notice
for Annual General Meeting and other meetings As per clause (11) of the bye-laws, only the President is authorized to call Annual General Meeting
as well as the Executive Body meeting. The notice is to be issued under the signature of President. As per clause (14), 15 days’ prior notice has
to be given for calling Annual General Meeting.
Learned Counsel Mr.Deshpande has submitted that earlier also meetings were called by issuing short notice of 2-3 days and therefore, notice
dt.2.12.2005 is not illegal. It is pertinent to note that material decision was to be taken in the meeting dt.5.12.2005. Hence, it was mandatory on the
part of the President to issue 15 days’ prior notice to the members of the Society to remain present. But, notice was issued only 3 days before the
meeting dt.5.12.2005 by the Secretary Ramesh Dongre.
On perusal of the record, it appears that, before the Assistant Charity Commissioner, notice to produce the documents was filed vide Exh.70. The
material documents even ordered by the Assistant Charity Commissioner were not filed by the reporting trustees. Learned Counsel Mr.Kadu has
submitted that Ramesh Dongre/reporting trustee played mischief by not following the bye-laws etc. 15 days’ prior notice is mandatory as per the
bye- laws. The learned Counsel has pointed out decision of this Court in the case of Santosh Shankarlal Agrawal .vs. Purushottam Jaganath Murme
and Others reported in 2017 DGLS (Bom) 1344. In para nos. 13 and 14, this Court has observed as under:
“13. Here in the case, admittedly the notice of the proposed meeting, according to respondent No.1 also was issued to appellant and respondent
No.2. The question is whether that notice was legal and valid in view of the mandate of the Memorandum of Association. As stated above, clause 16(
C) of the Memorandum of Association shown that 15 days written notice in advance be given to the members before the election of the members for
executive committee. Clause 18 further lays down that the notice of 15 days in advance must be received by the member for any proposed meeting of
General Body. Here in the case, admittedly the notice is alleged to be issued on 21/12/1990 and it is stated to be sent Under Certificate of Posting on
22/12/1990 as the meeting was proposed on 6/1/1991 and held on that day, it follows that there was no 15 days in advance notice before the date of
meeting. It is apart that as per the case of appellant and respondent No.2 they had not received the notice and the proof of Under Certificate of
Posting cannot be a valid proof of service of notice as there is no acknowledgment receipt. “
“14. In view of this situation, it is apparent that in the first place 15 days notice in advance was not received by appellant and respondent No.2 and
on this very ground itself the DCC has rightly held that the meeting was not legal, proper and valid. Secondly, ousting of the appellant and respondent
No.2 in the said meeting and induction of some other members in the Executive Committee was also done without giving an opportunity of hearing to
appellant and respondent No.2. Even assuming that they had not paid the subscription fees, on this count also their removal from the membership in
the said meeting and induction of some outsider members to the Executive Committee cannot be upheld.â€
Learned Counsel Mr.Kadu has further pointed out decision of this Court in the case of Krishnarao Kanhaiya Naidu and Others .vs. Jeevraj
Bhairavalal Agrawal and Others reported in 2010(2) Mh.L.J. 31, wherein this Court has observed in para 9 as under:
“Minutes of those meetings were not approved by holding subsequent meetings as can be seen from the Proceeding Book. Learned counsel for the
petitioner submits that there is no need of approval and when Resolutions are passed they become final. The submission has no force at all. The
confirmation is necessary because those who were absent on that day must know atleast in the second meeting as to what kind of Resolution was
passed by those who were present and they have a right to object or they may even approve them. Even those present in the earlier meeting may
object to the manner in which minutes were written or they may say whether such resolution was at all passed in former meeting or not. Further, one
who is member of the management must be aware of all decisions taken by the trustees since their responsibility is joint. Therefore, to my mind
approval of such Resolutions of the former meetings would be necessary. â€
In the present case, there was no any agenda in the meeting dt.16.6.2006 to approve the agenda of meeting dt.5.12.2005 and therefore, the
members were not aware about confirmation of minutes of meeting dt.5.12.2005. Therefore, the confirmation by the reporting trustee on 16.6.2006
about induction of new ten life members in the meeting dt.5.10.2005 is illegal.
Mr.Kadu, learned Counsel has pointed out admission of Ramesh Dongre. As per admission of Ramakant, there was no any election from 1984.
The Executive Body was not elected after five years as per bye-laws. This Court in the case ofS andeep Ram Meghe and Others .vs. Pundlikrao
Balaji Gohad (Dead) and Others reported in 2013 (4) Bom.C.R. 420 in Placetum C has held as under:
“(C ) Election of new trustees â€" Contention that old committee will continue till new one takes over â€" Whether correct â€" Held, this Court in
1982 B.C.I. (soft) 48 has held that when term of Committee has come to an end, it cannot automatically get extended beyond that date. Old
Committee can continue in offices only to take care of day to day business. In view of it an action of inducting 49 new members on 14-12-2006 (when
term had expired on 4-3-2006) was decision of far reaching consequences. It was contrary to Rules and Regulations provide for functions of outgoing
council. As questions framed have been answered in favour of respondents, both appeals must fail and are dismissed.â€
Ramesh Dongre who acted as a Secretary was not an elected Secretary. His admission shows that he was shown as member in P.T.R. Register.
There was no any change report to the Assistant Charity Commissioner about election of Ramakant as Secretary. Even though Ramesh Dongre acted
as Secretary of the Society, the material clauses of bye-laws i.e. more particularly clause nos. (7), (8), (9), (10), (11), (12), (13) and (14) are not
followed by the reporting trustee. The meeting dt. 5.12.2015 was called by issuing notice on 2.12.2015. Words “Aam Sabha (General Meeting)â€
were not mentioned in the notice (Exh.80) received by one of the objectors. On the contrary, Office copy of notice (Exh.55) shows that Ramesh
Dongre inserted word “Aam (General)†later on. This fact is admitted in the cross-examination by Ramesh Dongre himself. There was no any
agenda in the meeting dt.5.12.2005 for induction of new members. There was no any agenda in the meeting dt.16.1.2006 (Exh.57) for confirmation of
minutes of meeting dt.5.12.2005, even though the reporting trustee/appellant confirmed the minutes of meeting dt.5.12.2005 in the meeting
dt.16.1.2006. Executive Body was not elected after five years.
In respect of election of new members, the material documents such as list of members etc. were not supplied to the objectors. They have applied
in writing to supply documents. These letters are on record. They were present in the library of the College. Even though they were not supplied
material documents, the Principal and Accountant of the College endorsed on their letters stating that objectors were present on 28.3.2006 in the
library of the College. Those letters were not replied by President or Secretary. Ramesh Dongre has admitted in his cross-examination that whitener is
applied in front of signature of name of objectors. This itself shows that notice dt.2.12.2012 was not sent to one of the objectors. There is no signature
of one of the objectors on notice. The proceedings appears to be not maintained properly. As per the Proceedings Book, there were 144 pages, but, on
the last page, Dongre has certified that there are only 1 to 119 pages. Therefore, there is scope to believe that Dongre might have removed some
pages of the Proceedings Book.
The members were not legally inducted in the meeting dt.5.12.2012 and, therefore, they have no authority to issue letter to the Election Officer
Mr.Deshpande to conduct election. It appears from the cross-examination of Election Officer that the election was not properly conducted. Lists of
voters/members were not supplied.
All this evidence goes to show that the reporting trustee/appellant has played mischief only to deprive the rights of objectors.
Learned Assistant Charity Commissioner has rightly recorded its findings refusing to accept the Change Report submitted by the Reporting
Trustee. Learned Joint Charity Commissioner reviewed his own earlier findings. He has observed that earlier meetings were called within a short
notice of 2-3 days. Therefore, notice dt.2.12.2005 is legal and correct. It is pertinent to note that there is specific clause in bye-laws to issue 15
days’ prior notice for calling of Annual General Meeting. The Executive Body has to act as per the bye-laws. The material clause of bye-laws are
not followed and therefore, neither the proceedings in respect of election/induction of new 10 members nor the election dt.26.3.2006 is legal and
proper. The joint Charity Commissioner recorded wrong findings. The Adhoc District Judge has evaluated all the evidence on record minutely and
came to a correct finding holding that findings of Assistant Charity Commissioner are legal and proper. In that view of the matter, there is no merit in
both the appeals. Accordingly, they are dismissed with no orders as to costs.
JUDGE
Mr.N.S.Deshpande, learned Counsel has submitted that interim arrangement was made by this Court as per order dt.28.4.2010. That order is to be
continued for six weeks. Mr.Kadu, learned Counsel has submitted that specific direction be given to the Assistant Charity Commissioner to hold the
elections in his supervision. While dismissing both the appeals, findings are recorded by this Court that the meeting held on 5.12.2005 was itself illegal
and therefore, further proceedings continued by the reporting trustees are also illegal and therefore, both the appeals came to be dismissed. The
Assistant Charity Commissioner has given directions to the President of the Society to hold the elections in-consonance.
In view of the above submissions, the interim arrangement made by this Court by order dt.28.4.2010 is continued till the election is held of the
Society. The Assistant Charity Commissioner is directed to conduct the elections in his personal supervision within a period of four weeks.