Full Judgment Text
2024 INSC 52
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)
J U D G M E N T
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
passed by the District Judge-IV, Chandrapur
Signature Not Verified
Digitally signed by
Neetu Khajuria
Date: 2024.01.23
16:35:31 IST
Reason:
which confirmed the order passed by the
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
1
Prasarak Mandal, Mul registered under the
2
Societies Registration Act, 1860 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
3
Bombay Public Trusts Act, 1950 . 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
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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
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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
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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
Hyderabad Karnataka
the case of
Education Society Versus Registrar of
4
Societies and Others , 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,
5
Mumbai and others ,
6
Santosh vs. Purushottam
iii. ,
iv. Shri Sarbjit Singh & Others vs. All
India fine Arts & Crafts Society &
7
Others .
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
8
Sahu vs. Union of India 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
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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