NAWALCHAND CHAMPALAL CHAUDHURI Vs. JOINT CHARITY COMMISSIONER

JUDGEMENT

(1.) Both these writ petitions are taken up for final hearing at the stage of admission itself in view of the orders dated 15-10-2003 of this Court. In Writ Petition No. 4106 of 2003, the challenge is to the order dated 24-9-2003 passed by Respondent No. 1 - Joint charity Commissioner, Nagpur, below Exhs. 4 and 10 in Appeal No. 35 of 2003 whereby the joint Charity Commissioner has while promising to make sincere attempts to dispose of the appeal itself on or before 12-11-2003, stayed the directions issued under Section 41-A of bombay Public Trusts Act, 1950, (hereinafter referred to as the Act) , to hold elections of Trust on 28-9-2003. The Appeal No. 35 of 2003 has been filed by Respondent No. 2 in this writ petition. The said appeal is against the order dated 12-9-2003 passed by the Assistant Charity commissioner, Wardha, in Enquiry No. 164 of 2003. By said judgment dated 12-9-2003, the assistant Charity Commissioner, directed Shri. Nawalchand Champalal Choudhari - petitioner no. 1 herein to hold fresh elections of Managing committee, within a period of two months and then to file Change Report as per Section 22 of the Act. Respondent No. 2 in this writ petition has filed Writ Petition No. 4473 of 2003 challenging the direction as contained in the order dated 12-9-2003 permitting Shri. Nawalchand Champalal Chaudhari to hold elections. The parties to both the petitions and their challenge is identical and as per joint request made by the parties, both these writ petitions are taken up together. Rule. Rule is made returnable forthwith and heard finally with the consent of the parties.

(2.) The matter was heard by me even earlier and then on 17-8-2005 as one of the learned counsel was indisposed, the matter was required to be adjourned.

(3.) The petitioner in Writ Petition no. 4473 of 2003 Shri. Rathi contends that he is founder member of Trust by name Selu shikshan Mandal, Selu, District - Wardha. At present petitioner No. 1 - Rathi, Respondent No. 2- Shri. Wandile and Respondent No. 4 - Shri. Nawalchand Champalal Choudhary, are the only trustees admittedly alive. All other trustees have already expired. It is an admitted position that names of trustees have been taken on Schedule i in 1963-64 and thereafter no Change Reports were even filed. Shri. Rathi claims that he being secretary of the Trust, called the meeting of trustees and enrolled the members on 2-5-2003 and 9-5-2003. In the meeting dated 9-5-2003, trustees were elected and accordingly he filed change Report No. 181 of 2003. He also filed proceedings under Section 41-D of the Act against Shri. Wandile and Shri. Choudhary. He contends that to counter this move, Shri. Wandile and Shri. Choudhary filed Change report Case Nos. 149 of 2003 to 155 of 2003. They also filed application purported to be under section 41-A of the Act and sought permission of the Assistant Charity Commissioner to hold election. In said application, Shri. Wandile and shri. Choudhary admitted that various Change reports submitted by them are liable to be rejected and they also prayed for dismissal of change Report filed by Shri. Rathi. The assistant Charity Commissioner, Wardha region, Wardha, dismissed the Change Report no. 181 of 2003 filed by Shri. Rathi on 12-9-2003. The said order has been challenged by shri. Rathi by filing an appeal which is stated to be pending. He also dismissed Change reports filed by Shri. Wandile and Shri. Choudhary on same day and granted permission to them to hold elections in Application Enquiry no. 164 of 2003. Shri. Rathi states that he and one Shri. Mulchand Bhanmal Bhandari -petitioner No. 2 were not parties in Application enquiry No. 164 of 2003 and they were not served with a copy of any application. After order dated 12-9-2003 was passed, they came to know that list of members is produced by shri. Wandile and Shri. Choudhary and that list has been ordered to be treated as valid list. It is stated that Assistant Charity Commissioner recognised Shri. Choudhary as Secretary as claimed by Shri. Choudhary. Shri. Choudhary claimed said status on the ground that on 2-9-1970 elections of Managing Committee were held. It is stated that a Change Report in this respect has been filed on 9-5-2003 vide Change report No. 149 of 2003 and in it along with Shri. Choudhary, petitioner No. 2 - Bhandari was shown elected as President and petitioner No. 3- Saraf was shown as elected Joint Secretary.