* Author
[2024] 1 S.C.R. 1062 : 2024 INSC 52
Adv Babasaheb Wasade & Ors.
v.
Manohar Gangadhar Muddeshwar & Ors.
(Civil Appeal No. 10846 of 2018)
23 January 2024
[Vikram Nath* And Ahsanuddin Amanullah, JJ.]
Issue for Consideration
i) Whether the Working President 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 laws; ii) Whether the 7
Objectors were entitled to a notice for the meeting of 08.09.2002
in view of their disqualification u/s. 15 of the Societies Registration
Act, 1860; 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.
Headnotes
Societies Registration Act, 1860 – Bombay Public Trust Act,
1950 – Whether the Working President 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 laws:
Held: The effective office bearers of the Society namely the
President, Vice-President and the Secretary of the Society had
expired – Prior to his death, the President due to his poor health,
the Executive Body under his presidentship passed a resolution
on 01.07.1997 empowering appellant no. 1 to be designated as
the Working President – He was recognised was by almost all the
members of the General Body – In the instant case, it was not only
appropriate but also legal for the surviving members to request
for convening a meeting – Further, 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
[2024] 1 S.C.R. 1063
Adv Babasaheb Wasade & Ors. v. Manohar Gangadhar
Muddeshwar & Ors.
not convene the meeting, then no alternative has been suggested
by the Objectors as to who could convene the meeting – 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and they had also not been replaced by any fresh elections –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 and in particular, when
all the 16 surviving and valid members had made a request for
convening a meeting, no fault could be found with the decision of
the Working President 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, the convening of the
meeting for holding the elections on 08.09.2002 cannot be faulted
with. [Paras 4, 19, 20]
Societies Registration Act, 1860 – Bombay Public Trust Act,
1950 – Whether the 7 Objectors were entitled to a notice for
the meeting of 08.09.2002 in view of their disqualification u/s.
15 of the Registration Act:
Held: 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 – The specific language used in s. 15 of the
Registration Act 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. [Para 22]
Societies Registration Act, 1860 – Bombay Public Trust Act,
1950 – Whether lack of notice to the said 7 Objectors would
vitiate the entire election meeting of 08.09.2002:
Held: It is true that in the bye-laws of the present Society or the
Rules of the Society, there is no 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
1064 [2024] 1 S.C.R.
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– 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. [Para 26]
Societies Registration Act, 1860 – Bombay Public Trust Act,
1950 – Whether invalid members had signed the requisition
dated 20.08.2002 and had been elected to the Executive
Committee:
Held: 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 DVS 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 to the validity thereof is not being examined in detail,
given the lack of clarity and absence of material facts on this
aspect. [Para 27]
Societies Registration Act, 1860 – Bombay Public Trust Act,
1950 – 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:
Held: 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 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. [Para 29]
Societies Registration Act, 1860 – Bombay Public Trust Act,
1950 – There were four signatories (Members 4 to 7 from the
category of Employee Members) to the requisition calling a
[2024] 1 S.C.R. 1065
Adv Babasaheb Wasade & Ors. v. Manohar Gangadhar
Muddeshwar & Ors.
General Body Meeting – From a perusal of the available record,
it transpires that they had retired from service and even after
that had continued to pay their subscription – Propriety:
Held: In this context, the 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 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. [Para 34]
Principles/Doctrines – Doctrine of Necessity – When an action
is required to be taken under compelling circumstances –
Applicability of the doctrine of necessity on the facts of the
instant case:
Held: There is a doctrine of necessity where under given
circumstances an action is required to be taken under compelling
circumstances – The use of the doctrine of necessity is to justify
actions that would otherwise be outside the norm due to the urgent
need to restore order – In the instant 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. [Paras 15, 18]
Case Law Cited
Charan Lal Sahu v. Union of India [1989] 2 Suppl. SCR
597: (1990) 1 SCC 613 – followed.
Election Commission of India v. Dr Subramaniam Swamy
[1996] 1 Suppl. SCR 637: (1996) 4 SCC 104 – relied on.
1066 [2024] 1 S.C.R.
Digital Supreme Court Reports
Hyderabad Karnataka Education Society v. Registrar
of Societies and Others [1999] 5 Suppl. SCR 161 :
(2000) 1 SCC 566 – referred to.
Shri Bhaurao Versus Shri Dyaneshwar First Appeal No.
1435 of 2017; Ramesh Gangadhar Dongre and another
vs. Charity Commissioner, Mumbai and other 2020(5)
Mh.L.J.; Santosh vs. Purushottam 2017(6) Mh.L.J.; Shri
Sarbjit Singh & Others vs. All India fine Arts & Crafts
Society & Others ILR (1989) 2 Del 585 – referred to.
Books and Periodicals Cited
“Commentaries on the Laws of England” Book 1 of the
Rights of Persons by William Blackstone.
List of Acts
Societies Registration Act, 1860; Bombay Public Trust Act, 1950.
List of Keywords
Society; Members of Society; Trustees of Trust; Rules and
regulations of Society; Bye-laws; Life Members; Employee
Members; Ordinary Members; Donor Members; Executive
Body; Working President; Rights and duties of Working
President; Members of the General Body; Surviving
Members; Arrears of Membership; Notice; Change Report;
Requisition by Members; Meeting for Election; Defaulters;
Subscribers; Disqualification; Doctrine of Necessity.
Case Arising From
CIVIL APPELLATE JURISDICTION : Civil Appeal No.10846 of 2018.
From the Judgment and Order dated 20.07.2017 of the High Court of
Judicature at Bombay at Nagpur in FA No.811 of 2016.
Appearances for Parties
Shekhar Naphade, Sr. Adv., Gagan Sanghi, S.D Abhyankar, Ms.
Farah Hashmi, Ms. Aishwarya Dash, Dr. Prashant Pratap, Rameshwar
Prasad Goyal, Advs. for the Appellants.
Narender Hooda, Sr. Adv., Prashant Gode, Ms. Jayshree Satpute,
Nikhil Kirtane, Ms. Manju Jetley, Advs. for the Respondents.
[2024] 1 S.C.R. 1067
Adv Babasaheb Wasade & Ors. v. Manohar Gangadhar
Muddeshwar & Ors.
Judgment / Order of the Supreme Court
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 passed by the District
Judge-IV, Chandrapur which confirmed the order passed by the
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, 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 to ill health on 24.05.1998.
1 In short, “Society”
2 In short, Registration Act”
3 In short, “Trusts Act”
1068 [2024] 1 S.C.R.
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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.
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 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 First Appeal was preferred
before the Bombay High Court which has since been dismissed by
the impugned order, giving rise to the present appeal.
[2024] 1 S.C.R. 1069
Adv Babasaheb Wasade & Ors. v. Manohar Gangadhar
Muddeshwar & Ors.
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 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 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.
11. The arguments of Shri Naphade on behalf of the appellants are
briefly summarised hereunder:
1070 [2024] 1 S.C.R.
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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 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 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.
4 In [1999] 5 Suppl. SCR 161 : (2000) 1 SCC 566
[2024] 1 S.C.R. 1071
Adv Babasaheb Wasade & Ors. v. Manohar Gangadhar
Muddeshwar & Ors.
i) He has submitted that it suffers from no 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 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,
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:
5 2020(5) Mh.L.J.
6 2017(6) Mh.L.J.
7 ILR (1989) 2 Del 585
1072 [2024] 1 S.C.R.
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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-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 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 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
[2024] 1 S.C.R. 1073
Adv Babasaheb Wasade & Ors. v. Manohar Gangadhar
Muddeshwar & Ors.
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
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 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
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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 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 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
8 In [1989] 2 Suppl. SCR 597 : (1990) 1 SCC 613 in para 105
[2024] 1 S.C.R. 1075
Adv Babasaheb Wasade & Ors. v. Manohar Gangadhar
Muddeshwar & Ors.
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 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 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
1076 [2024] 1 S.C.R.
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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 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 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.”
[2024] 1 S.C.R. 1077
Adv Babasaheb Wasade & Ors. v. Manohar Gangadhar
Muddeshwar & Ors.
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 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
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
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
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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 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 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 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.
[2024] 1 S.C.R. 1079
Adv Babasaheb Wasade & Ors. v. Manohar Gangadhar
Muddeshwar & Ors.
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 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.
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 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
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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 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 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 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.
[2024] 1 S.C.R. 1081
Adv Babasaheb Wasade & Ors. v. Manohar Gangadhar
Muddeshwar & Ors.
31. For all the reasons recorded above, the impugned judgment of the
High Court and the other authorities adverse to the appellants cannot
be 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, 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 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 all aspects of the matter for
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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.
Headnotes prepared by: Ankit Gyan Result of the case: Appeal allowed.
