Adv Babasaheb Wasade vs Manohar Gangadhar Muddeshwar

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 10846 OF 2018 ADV BABASAHEB WASADE & ORS. …APPELLANT(S)

VERSUS

MANOHAR GANGADHAR MUDDESHWAR & ORS. …RESPONDENT(S)

JUDGMENT

VIKRAM NATH, J.

1. The present appeal assails the correctness of the

judgment and order dated 20.07.2017, passed by

the Nagpur Bench of the Bombay High Court in

First Appeal No. 811 of 2016, whereby the Appeal

was dismissed, thereby confirming the order

Signature Not Verified passed by the District Judge-IV, Chandrapur Digitally signed by Neetu Khajuria

which confirmed the order passed by the Date: 2024.01.23 16:35:31 IST Reason:

Civil Appeal No.10846 of 2018 Page 1 of 42

Assistant Charity Commissioner, Nagpur

rejecting the change report filed by the

appellants.

2. There is a society by the name of Shikshan

Prasarak Mandal, Mul1 registered under the

Societies Registration Act, 18602 as a charitable

society since 1946. The Society in its turn framed

its rules and regulations. Later on, the Society

was registered as a Public Trust under the

Bombay Public Trusts Act, 19503. The rules and

regulations of the Society were incorporated as

its bye-laws and were duly registered under the

Trusts Act.

3. As per the rules and regulations, the Society has

four types of members i.e. Life members,

1 In short, “Society” 2 In short, Registration Act” 3 In short, “Trusts Act”

Civil Appeal No.10846 of 2018 Page 2 of 42 Employee members, Ordinary members and

Donor members. The members of each category

were required to pay an annual membership

subscription of Rs. 11/- per year to the Society.

4. The effective office bearers of the Society namely

the President, Vice-President and the Secretary

of the Society expired. Even prior to the death of

the President due to his poor health, the

Executive Body under his presidentship passed

a resolution on 01.07.1997 empowering Advocate

Babasaheb Wasade (appellant No. 1) to be

designated as the Working President and he was

required to look after day-to-day affairs and

management of the Society. This status of

Working President was given to the appellant

No.1 at a time when the President was suffering

from serious illness and later on succumbed due

Civil Appeal No.10846 of 2018 Page 3 of 42 to ill health on 24.05.1998.

5. As there was no elected President, Vice-President

or the Secretary, 16 members of the Society

requested appellant No.1 vide written request

dated 20.08.2002 to summon extraordinary

meeting to hold the elections. Pursuant to the

receipt of the said request, the appellant No.1

acting as Working President, issued notice on

03.09.2002 for summoning a special meeting for

the elections of new Executive Body. The

elections were held on 08.09.2002 and a new

Executive Committee was elected with appellant

No.1 as the President and appellant No.2 as the

Secretary. Accordingly, a Change Report bearing

no. 668 of 2002 was submitted under Section 22

of the Trusts Act before the Assistant Charity

Commissioner, Chandrapur.

Civil Appeal No.10846 of 2018 Page 4 of 42

6. Objections were filed by 7 persons alleging to be

members of the Society on the ground that notice

dated 03.09.2002 had not been served on them

and that appellant No.1 had no authority to issue

notice to summon a meeting for election. It was

also alleged in the objections that the signatory

nos. 12 to 16 to the request letter dated

20.08.2002, were not valid members of the

Society and were yet to be approved by the

Executive Committee. Further signatory nos. 4 to

7 of the same objection had retired and hence,

they ceased to be members.

7. The elected Secretary filed his response to the

said objections stating therein that signatory

nos. 4 to 7 and 12 to 16 are valid members of the

Society. Further that the 7 Objectors had not

paid their annual subscriptions for more than

Civil Appeal No.10846 of 2018 Page 5 of 42 the prescribed period under Section 15 of the

Registration Act as such they were barred from

voting, and therefore, even if notices were not

sent to them, it would not make any difference.

8. Before the Assistant Charity Commissioner

parties led evidence. The Assistant Charity

Commissioner vide order dated 19.06.2010

allowed the objections and accordingly rejected

the Change Report. The appellant preferred an

appeal before the Joint Charity Commissioner,

Nagpur. The appeal was allowed by order dated

12.04.2016 and the Change Report was

accepted. Against this, Miscellaneous Civil

Application No. 50 of 2016 was filed by the

Objectors before the District Judge-4,

Chandrapur, which was allowed vide judgment

dated 29.07.2016. Aggrieved by the same, the

Civil Appeal No.10846 of 2018 Page 6 of 42 First Appeal was preferred before the Bombay

High Court which has since been dismissed by

the impugned order, giving rise to the present

appeal.

9. Certain facts are not disputed by the parties. The

same are being recorded hereunder:

i) 7 Objectors who had filed objections

against the Change Report were

admittedly defaulters in payment of their

annual subscriptions, and were covered

by the second part of Section 15 of the

Registration Act which stated that no

person shall be entitled to vote or be

counted as a member whose subscription

at the time shall have been in arrears for

a period exceeding three months. The 7

Objectors admittedly fell under this

Civil Appeal No.10846 of 2018 Page 7 of 42 category of default.

ii) Notice for the meeting fixed for

08.09.2002 was not issued to the 7

Objectors for the reason that they were in

arrears and as such would not have the

right to vote or be counted as members.

iii) All the office bearers holding important

posts like President, Vice-President and

Secretary had expired prior to request

dated 20.08.2002 and no election had

been held till then to fill up the said posts.

iv) The appellant No.1 was functioning as

Working President since 1997 without

there being any challenge to such

assignment in the Executive Body

meeting dated 01.07.1997.

v) All the 7 Objectors who had filed

objections to the Change Report had died

Civil Appeal No.10846 of 2018 Page 8 of 42 during the pendency of the appeal before

the Joint Charity Commissioner. The

contesting respondents applied before the

Joint Charity Commissioner to be

impleaded as respondents. Said request

was allowed, despite objections by the

appellants that they had no locus as they

were neither trustees or members of the

Society or the Trust.

vi) The appellants are in effective control of

the Society and the Trust for the last more

than two decades and are being elected

during fresh elections held in the last two

decades.

10. We have heard Shri Shekhar Naphade, learned

Senior Counsel for the Appellants and Shri

Narender Hooda, learned Senior Counsel

appearing for the private respondents.

Civil Appeal No.10846 of 2018 Page 9 of 42

11. The arguments of Shri Naphade on behalf of the

appellants are briefly summarised hereunder:

i) Today none of the 7 Objectors are alive.

The private respondents to this appeal

having not raised any objections to the

Change Report, cannot be heard because

they are neither trustees or members of

any category of the Society.

ii) Consistent finding recorded by the

Authorities, the District Judge and the

High Court is that the 7 Objectors were in

default in payment of their annual

subscription and therefore, were not

entitled to any notice for the meeting of

the elections as they were prohibited from

voting and being counted as member

under Section 15 of the Societies

Civil Appeal No.10846 of 2018 Page 10 of 42 Registration Act. The Courts below

committed an error in holding that due to

lack of service of notice, the proceedings

of meeting dated 08.09.2002 were

vitiated.

iii) The appellants are in effective control of

the Society as also the Trust and have

been functioning in accordance with its

bye-laws for more than two decades and

they are continuing to hold elections from

time to time, and should therefore, not be

disturbed.

iv) The reasoning given by the Courts below

that as there was no order of cancellation

of membership or cessation of the

membership, the 7 Objectors would be

entitled to notice and the question

whether they would be allowed to vote or

Civil Appeal No.10846 of 2018 Page 11 of 42 not would be a separate issue.

v) Reliance has been placed upon by Shri

Naphade on a judgment of this Court in

the case of Hyderabad Karnataka

Education Society Versus Registrar of

Societies and Others4, where a provision

similar to Section 15 of the Registration

Act was being considered and this Court

held that the provision was valid and a

member defaulting in payment of

subscription would for all practical

purposes be deemed to not be a member

entitled to notice.

12. On the other hand, Mr. Hooda has strongly relied

upon the reasoning given by the High Court.

i) He has submitted that it suffers from no

4 In (2000) 1 SCC 566

Civil Appeal No.10846 of 2018 Page 12 of 42 infirmity, warranting any interference.

ii) The appellants are not entitled to any

relief from this Court, as they were not

entitled to convene the meeting for the

elections. Appellant No.1 was neither

Secretary nor President and under the

bye-laws, it is the Secretary who would

convene the meeting.

iii) He further reiterated that the effect of

Section 15 of the Registration Act would

not be of cancelling the membership of the

Objectors. Referring to the Hyderabad

Karnataka Education Society (supra)

case, Mr. Hooda submitted that in the

aforesaid case under the bye-laws there

was a provision that if there was a default,

the membership would stand cancelled,

which is not the case here as there is no

Civil Appeal No.10846 of 2018 Page 13 of 42 such provision under the bye-laws.

According to him, the said judgment

would be of no help to the appellant as it

would not apply to the present case.

iv) Lastly, it was submitted that a number of

signatories to the requisition dated

20.08.2002 and also elected as executive

members on 08.09.2002, were not

members of the Society at that time for the

reason that either they had retired or were

never elected as per the bye-laws.

v) Mr. Hooda has further relied upon the

following judgments as part of his

submissions:

i. Shri Bhaurao Versus Shri

Dyaneshwar, in First Appeal No. 1435

of 2017 passed by the High Court of

Judicature at Bombay, Nagpur Bench,

Civil Appeal No.10846 of 2018 Page 14 of 42 ii. Ramesh Gangadhar Dongre and

another vs. Charity Commissioner,

Mumbai and others5,

iii. Santosh vs. Purushottam6,

iv. Shri Sarbjit Singh & Others vs. All

India fine Arts & Crafts Society &

Others7.

13. Having considered the respective submissions,

the following questions arise for consideration:

i) Whether the Working President Mr.

Wasade could have convened the election

meeting for 08.09.2002 as according to

the Objectors, it was only the Secretary or

in the alternative the President who could

have convened the meeting under the bye-

5 2020(5) Mh.L.J. 6 2017(6) Mh.L.J. 7 ILR (1989) 2 Del 585

Civil Appeal No.10846 of 2018 Page 15 of 42 laws?

ii) Whether the 7 Objectors were entitled to a

notice for the meeting of 08.09.2002 in

view of their disqualification under

Section 15 of the Registration Act?

iii) Whether lack of notice to the said 7

Objectors would vitiate the entire election

meeting of 08.09.2002?

iv) Whether invalid members had signed the

requisition dated 20.08.2002 and had

been elected to the Executive Committee?

v) Whether the private respondents had the

locus to be heard before any forum or to

file an appeal/petition against the order of

the Joint Charity Commissioner?

14. It is not in dispute that in the meeting of the

Executive Body held on 01.07.1997, the then

Civil Appeal No.10846 of 2018 Page 16 of 42 President on account of his ill health had got a

resolution passed that Mr. Wasade would

thereon be the Working President and will look

after the day-to-day affairs and management of

the Society. The said resolution of 01.07.1997

was not put to any challenge by any of the

Trustees or the members of the General Body. It

is also not in dispute that before 20.08.2002, the

President, the Secretary, the Vice-President and

the Joint-Secretary were not alive. In the absence

of the office bearers authorised under the bye-

laws who could convene the meeting, the only

option left for convening the meeting could either

be with the Working President on his own or

upon the requisition made by the members to

convene a meeting.

15. There is a doctrine of necessity where under

Civil Appeal No.10846 of 2018 Page 17 of 42 given circumstances an action is required to be

taken under compelling circumstances. One of

the earlier proponents of the Doctrine of

necessity in Common Law was William

Blackstone, who in his book, “Commentaries on

the Laws of England” Book 1 of the Rights of

Persons, discusses the meeting of the

convention-parliament before Charles II's return,

noting that it was an extraordinary measure

taken out of necessity. He describes the use of

the doctrine of necessity to justify actions that

would otherwise be outside the norm due to the

urgent need to restore order. He describes

another instance during the Glorious Revolution

when the lords and commons assembled and

acted without the usual royal summons, justified

by the extraordinary circumstance of a perceived

vacant throne and the urgent need to address the

Civil Appeal No.10846 of 2018 Page 18 of 42 governance of the country.

“It is also true, that the convention- parliament, which restored king Charles the second, met above a month before his return; the lords by their own authority, and the commons in pursuance of writs issued in the name of the keepers of the liberty of England by authority of parliament:

and that the said parliament sat till the twenty ninth of December, full seven months after the restoration; and enacted many laws, several of which are still in force. But this was for the necessity of the thing, which supersedes all law; for if they had not so met, it was morally impossible that the kingdom should have been settled in peace. And the first thing done after the king's return, was to pass an act declaring this to be a good parliament, notwithstanding the defect of the king's writs. So that, as the royal prerogative was chiefly wounded by their so meeting, and as the king himself, who alone had a right to object, consented to wave the objection, this cannot be drawn into an example in prejudice of the rights of the crown. Besides we should also remember, that it was at that time a great doubt among the lawyers, whether even this healing act made it a good parliament; and held by very

Civil Appeal No.10846 of 2018 Page 19 of 42 many in the negative: though it seems to have been too nice a scruple.

It is likewise true, that at the time of the revolution, A.D. 1688, the lords and commons by their own authority, and upon the summons of the prince of Orange, (afterwards king William) met in a convention and therein disposed of the crown and kingdom. But it must be remembered, that this assembling was upon a like principle of necessity as at the restoration; that is, upon an apprehension that king James the second had abdicated the government, and that the throne was thereby vacant: which apprehension of theirs was confirmed by their concurrent resolution, when they actually came together. An in such a case as the palpable vacancy of a throne, it follows ex necessitate rei, that the form of the royal writs must be laid aside, otherwise no parliament can ever meet again. For, let us put another possible case, and suppose, for the sake of argument, that the whole royal line should at any time fail, and become extinct, which would indisputably vacate the throne:

in this situation it seems reasonable to presume, that the body of the nation, consisting of lords and commons, would have a right to meet and settle the government; otherwise there must

Civil Appeal No.10846 of 2018 Page 20 of 42 be no government at all. And upon this and no other principle did the convention in 1688 assemble. The vacancy of the throne was precedent to their meeting without any royal summons, not a consequence of it. They did not assemble without writ, and then make the throne vacant; but the throne being previously vacant by the king's abdication, they assembled without writ, as they must do if they assembled at all. Had the throne been full, their meeting would not have been regular; but, as it was really empty, such meeting became absolutely necessary. And accordingly it is declared by statute 1 W & M. st. 1. c.

1. that this convention was really the two houses of parliament, notwithstanding the want of writs or other defects of form. So that, notwithstanding these two capital exceptions, which were justifiable only on a principle of necessity, (and each of which, by the way, induced a revolution in the government) the rule laid down is in general certain, that the king, only, can convoke a parliament.”

16. The doctrine of necessity has been elucidated by

a Constitution Bench of this Court in Charan Lal

Civil Appeal No.10846 of 2018 Page 21 of 42 Sahu vs. Union of India8 as follows:

“The question whether there is scope for the Union of India being responsible or liable as a joint tort- feasor is a difficult and different question. But even assuming that it was possible that the Central Government might be liable in a case of this nature, the learned Attorney General was right in contending that it was only proper that the Central Government should be able and authorised to represent the victims. In such a situation, there will be no scope of the violation of the principles of natural justice. The doctrine of necessity would be applicable in a situation of this nature. The doctrine has been elaborated, in Halsbury's Laws of England, 4th edn., page 89, paragraph 73, where it was reiterated that even if all the members of the Tribunal competent to determine a matter were subject to disqualification, they might be authorised and obliged to hear that matter by virtue of the operation of the common law doctrine of necessity. An adjudicator who is subject to disqualification on the ground of bias or interest in the matter which he has to decide may in certain circumstances be required to

8 In (1990) 1 SCC 613 in para 105

Civil Appeal No.10846 of 2018 Page 22 of 42 adjudicate if there is no other person who is competent or authorised to be adjudicator or if a quorum cannot be formed without him or if no other competent tribunal can be constituted. In the circumstances of the case, as mentioned hereinbefore, the Government of India is only capable to represent the victims as a party. The adjudication, however, of the claims would be done by the court. In those circumstances, we are unable to accept the challenge on the ground of the violation of principles of natural justice on this score. The learned Attorney General, however, sought to advance, as we have indicated before, his contention on the ground of de facto validity. He referred to certain decisions. We are of the opinion that this principle will not be applicable. We are also not impressed by the plea of the doctrine of bona fide representation of the interests of victims in all these proceedings. We are of the opinion that the doctrine of bona fide representation would not be quite relevant and as such the decisions cited by the learned Attorney General need not be considered.”

17. The applicability of the Doctrine of Necessity was

further clarified by this Court in Election

Civil Appeal No.10846 of 2018 Page 23 of 42 Commission of India v. Dr Subramaniam

Swamy reported in (1996) 4 SCC 104 as follows:

“ 16. We must have a clear conception of the doctrine. It is well settled that the law permits certain things to be done as a matter of necessity which it would otherwise not countenance on the touchstone of judicial propriety. Stated differently, the doctrine of necessity makes it imperative for the authority to decide and considerations of judicial propriety must yield. It is often invoked in cases of bias where there is no other authority or Judge to decide the issue. If the doctrine of necessity is not allowed full play in certain unavoidable situations, it would impede the course of justice itself and the defaulting party would benefit therefrom. Take the case of a certain taxing statute which taxes certain perquisites allowed to Judges. If the validity of such a provision is challenged who but the members of the judiciary must decide it. If all the Judges are disqualified on the plea that striking down of such a legislation would benefit them, a stalemate situation may develop. In such cases the doctrine of necessity comes into play. If the choice is between allowing a biased person to act or to stifle the action altogether, the choice must fall

Civil Appeal No.10846 of 2018 Page 24 of 42 in favour of the former as it is the only way to promote decision-making. In the present case also if the two Election Commissioners are able to reach a unanimous decision, there is no need for the Chief Election Commissioner to participate, if not the doctrine of necessity may have to be invoked.”

18. In the present case, had the Working President

not convened the meeting, the elections of the

executive body would have been in limbo for an

unreasonable amount of time. The convening of

the meeting by the Working President upon the

requests by the 16 surviving members was a

“necessity” at the time.

19. There is one more aspect of the matter to be

discussed here with respect to the duties of the

‘Working President’. Clause 11 of the Byelaws

recognizes a Working President and also defines

his rights and duties. The same is reproduced

Civil Appeal No.10846 of 2018 Page 25 of 42 below:

“11. “Working President” –

The Rights and Duties of Working President:

1. To complete the work as per the written instructions of the President of the Shikshan Prasarak Mandal, the executive body of the Mandal and the General Body of the Mandal.

2. Make efforts from the point of extending the area of operation of the Shikshan Prasarak Mandal.”

As per the above clause, the ‘Working

President’ was to act on the directions of the

President, Executive Body and the General Body.

In the present case, the recognition was by almost

all the members of the General Body. He had no

option but to call for a general body meeting in

accordance with the rights and duties conferred

upon him.

20. In the present case, it was not only appropriate

Civil Appeal No.10846 of 2018 Page 26 of 42 but also legal for the surviving members to

request for convening a meeting. Further in the

present case, as many as 16 members had

requested in writing for convening the meeting. If

the submission of the Objectors is to be accepted

that the Working President could not convene the

meeting, then no alternative has been suggested

by the Objectors as to who could convene the

meeting. Alternatively, the President and

Secretary who were authorized under the bye-

laws had died and no election had been held for

replacing them. Even the Vice-President and the

Joint-Secretary had also passed away and they

had also not been replaced by any fresh elections.

The only person who could be said to be

managing the affairs of the Society was the

Working President Mr. Wasade, and in

particular, when all the 16 surviving and valid

Civil Appeal No.10846 of 2018 Page 27 of 42 members had made a request for convening a

meeting, no fault could be found with the

decision of the Working President Mr. Wasade to

convene the meeting. The other option could have

been that all the 16 members could have

themselves nominated any one of the members to

chair the meeting of the Executive Body and

thereafter they could have proceeded to take

appropriate decisions. In such situation, we are

of the view that the convening of the meeting for

holding the elections on 08.09.2002 cannot be

faulted with. Question No.1 is answered

accordingly in favour of the appellants.

21. Coming to the next question regarding notice to

the objectors, at the outset, Section 15 of the

Registration Act is reproduced hereunder:

“Section 15 in The Societies Registration Act, 1860 Civil Appeal No.10846 of 2018 Page 28 of 42

15. Member defined.— Disqualified members - For the purposes of this Act a member of a society shall be a person who, having been admitted therein according to the rules and regulations thereof, shall have paid a subscription, or shall have signed the roll or list of members thereof, and shall not have resigned in accordance with such rules and regulations; Disqualified members.—But in all proceedings under this Act no person shall be entitled to vote or be counted as a member whose subscription at the time shall have been in arrears for a period exceeding three months.”

The High Court, in the impugned order, has

held that the said provision is applicable.

22. It is not in dispute that all the Objectors were in

arrears of their membership fee for a period of

more than three months. This fact is admitted as

is recorded by not only the High Court but all the

three authorities. In fact, these Objectors had

gone to the extent of saying that even if notices

were issued to them, they will not receive it. The

Civil Appeal No.10846 of 2018 Page 29 of 42 question is what would be the effect of such non-

payment in the light of the proviso contained in

Section 15 of the Registration Act. The specific

language used is that such members in default

of membership fee would not be entitled to vote

and would not be counted as members of the

Society. If they were not entitled to vote and they

were not to be counted as members, there would

be no illegality or for that matter any prejudice

being caused by not issuing any notice as the

same would be an exercise in futility.

23. It is a fact that under the bye-laws of the Society,

there was no provision that a member defaulting

in payment of membership fee and duly covered

by the proviso to Section 15 of the Registration

Act, would automatically lose his membership or

in effect would cease to be a member of the

Civil Appeal No.10846 of 2018 Page 30 of 42 Society. Be that as it may the only limited status

left of such members would be that their name

would continue to be in the Roll of the Society

and at best by clearing of the arrears of the

membership fee in addition to any penalty or fine

liable to be charged for being reinstated as valid

members would survive to them. Such defaulting

members could have applied that they are ready

and willing to pay their arrears and upon such

application and payment being made, the effect

of the proviso to Section 15 of the Registration

Act could be considered by the appropriate

officer/Committee of the Society. Till such time

they would continue to remain as suspended

members having no right to participate in any

meeting.

24. The Executive Body or any other body competent

Civil Appeal No.10846 of 2018 Page 31 of 42 under the bye-laws could take up their matter

and give them a show cause notice and

opportunity to save their membership by

fulfilling their obligations failing which their

membership would be terminated. When despite

the same, they would not fulfil their obligations

their membership would be declared to have

been terminated.

25. This Court in the case of Hyderabad Karnataka

Education Society (supra) was dealing with a

similar provision under Rule 7-A of the Rules

framed by Hyderabad Karnataka Education

Society, read with Section 2(b) and Section 6(2)

proviso of the Karnataka Societies Registration

Act, 1960. Section 2(b) of the said Act defined

‘member’ which provided that to be treated as a

member of the Society for the year concerned, he

Civil Appeal No.10846 of 2018 Page 32 of 42 should have been admitted to that membership

in accordance with rules and regulations and

shall have paid the subscription as laid down

therein. Section 6(2) of the said Act was akin to

the proviso to Section 15 of the Registration Act

that in default of payment of membership fee for

more than three months, the membership would

cease. The validity of such rule 7-A was

challenged before the High Court which found

the same to be very harsh and accordingly had

held it to be ultra vires of Section 6(2) of the

Karnataka Societies Registration Act, 1960. This

Court disagreed with the reasoning given by the

High Court and accordingly set it aside. This

Court held that the said rule could not be said to

be harsh or unreasonable, rather it was in line

and in tune if it is read with Section 2(b) and

Section 6(2) of the said Act.

Civil Appeal No.10846 of 2018 Page 33 of 42

26. It is true that in the bye-laws of the present

Society or the Rules of the Society, there is no

such provision of automatic cessation of

membership where a member goes in default of

payment of membership fee for more than three

months. However, the effect of the proviso to

Section 15 of the Registration Act which

admittedly is applicable to the Society, the

Objectors have to be treated as suspended

members and therefore, would not be entitled to

any notice as they had no right to vote or to be

counted as members. Once they are not to be

counted as members, there was no occasion to

give them notice as such Non-issuance of notice

to the Objectors would not vitiate the proceeding

of the special meeting held on 08.09.2002. The

argument raised by Mr. Hooda is to the effect that

Civil Appeal No.10846 of 2018 Page 34 of 42 Hyderabad Karnataka Education Society

(supra) judgment would not apply to the present

case and would be of no help to the appellant.

This submission same cannot be accepted in

view of the discussion made above and also for

the reasoning given by this Court in the said

judgment. Even if we do not take into

consideration the judgment of this Court

Hyderabad Karnataka Education Society

(supra), we may record that a clear reading and

interpretation of the proviso to Section 15 of the

Registration Act would disentitle such defaulting

members from being given any notice even if their

membership was not terminated or ceased.

Question nos. 2 and 3 are thus answered in

favour of the appellants.

27. In so far as the fourth question is concerned with

Civil Appeal No.10846 of 2018 Page 35 of 42 regard to the participation of invalid members in

signing the requisition and being elected in the

executive is concerned, the same have been duly

explained by the appellants. The signatories at

serial nos. 12 to 16 of the requisition dated

20.08.2002, had been duly admitted in the

General Body Meeting on 11.11.2001. The said

resolution of the meeting was never challenged.

The same is on record as Exhibit 131 and one of

the Objectors Dhanji Virji Shah was a signatory

in the said proceeding. With respect to the

objections relating to signatory nos. 4 to 7, the

explanation is that were of the category of

Employee Members. In due course they had

retired from service. However, even after their

retirement, they had continued to pay their

subscription. As their membership(s) have

continued, at this stage, objection(s) with regard

Civil Appeal No.10846 of 2018 Page 36 of 42 to the validity thereof is not being examined in

detail, given the lack of clarity and absence of

material facts on this aspect.

28. Coming to the last question regarding locus of

the contesting respondent which has been

seriously pressed by Mr. Naphade, learned

Senior Counsel no material has been placed

before us by the respondent senior Counsel Mr.

Hooda to establish their locus.

29. During the pendency of the appeal before the

Joint Charity Commissioner all the seven

objectors had died. The Joint Charity

Commissioner decided in favour of the appellants

and directed for accepting the Change Report.

The contesting respondent preferred a petition

before the District Judge. He was neither an

objector before the Assistant Charity

Civil Appeal No.10846 of 2018 Page 37 of 42 Commissioner nor a valid member of the Society.

He would have no locus to maintain the petition

before the District Judge. Although the

contesting respondent claimed himself to be the

Vice-President of the Society but has not been

able to substantiate his claim. On this ground

alone the District Judge ought to have dismissed

the petition.

30. The judgments relied upon by Mr. Hooda referred

to above are on issue which were not argued

before the High Court even otherwise they relate

to 15 days’ notice for convening a meeting which

point could have been raised by a valid member

and not by a suspended member.

31. For all the reasons recorded above, the impugned

judgment of the High Court and the other

authorities adverse to the appellants cannot be

Civil Appeal No.10846 of 2018 Page 38 of 42 sustained. The Change Report No.668 of 2002

deserves to be accepted. The Joint Charity

Commissioner had rightly accepted it.

32. The appeal is accordingly allowed. The impugned

judgment and order of the High Court as also the

orders rejecting the Change Report regarding

General Body Meeting dated 08.09.2002 are set

aside and the Change Report is accepted.

33. However, having allowed the appeal, before

parting, we would like to address one grey area,

which having been left unexplained cannot be

brushed aside. Insofar as it relates to four

signatories to the Requisition for calling a

General Body Meeting, specifically being

Members 4 to 7 from the category of Employee

Members, from a perusal of the available record,

Civil Appeal No.10846 of 2018 Page 39 of 42 it transpires that they had retired from service.

Yet even after this, they had continued to pay

their subscription and as such, their

membership had continued.

34. In this context, the obvious question that arises

is that once the said Members were Employee

Members, their categorisation as such was

dependent on them being in service. On

retirement, the said signatories would cease to be

employees, come out of the category of Employee

Members and their membership in the Society

could not have continued. Upon superannuation

or cessation of their employment, such four

signatories could very well have been made

members of the Society, but there is no indication

on the record that they were made members of

the Society by a specific resolution and thereafter

continued as members and paid the subscription

Civil Appeal No.10846 of 2018 Page 40 of 42 fee(s). Thus, they could not have continued as

members of the Society in the category of

Employee Members even upon their

superannuation by merely paying the yearly

subscription fee thereby blocking the entry of the

persons, who were still employees.

35. Moreover, we find that the stalemate in the

Society has continued for a pretty long time,

which does not bode well for any institution,

much less an institution which is running

educational institutions and is required to be run

in a fair, transparent and legal manner. Thus, we

direct that fresh elections shall be held for the

new Executive Committee of the Society by the

Charity Commissioner in accordance with law

within six months from the receipt of a copy of

this Judgment. It is left open for him to delve into

Civil Appeal No.10846 of 2018 Page 41 of 42 all aspects of the matter for ensuring that the

issue of membership/members of the Society is

resolved in terms of the existing records of the

Society, ascertaining the factual position and

status of the members at relevant point of time

as also their right to continue as members of the

Society and be on the electoral roll for conduct of

fresh election for constitution of a new Executive

Committee.

36. There shall be no order as to costs.

……………………………………J. (VIKRAM NATH)

……………………………………J. (AHSANUDDIN AMANULLAH)

NEW DELHI JANUARY 23, 2024

Civil Appeal No.10846 of 2018 Page 42 of 42