Shri. Pundlik S/O. Deoraoji ... vs Shri. Kishor Laxmanrao Futane And ...
2016 Latest Caselaw 570 Bom

                                                     1




                                                                                         
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                          NAGPUR BENCH : NAGPUR




                                                                
    Writ Petition No. 1045 of 2016




                                                               
    Petitioners           :        1)  Shri Pundlik Deoraoji Ughade, aged about 60




                                                    
                                   years, Occupation : Cultivation, resident of Deoli,
                                    
                                   Tabhsil Deoli, District Wardha

                                   2)  Shri Udayrao son of Madanrao Kashikar, aged 
                                   
                                   about 64 years, Occupation : Agriculturist,  resident of

                                   of Shirasgaon (Dhanadhya), Tahsil and Dist. Wardha
          

                                   versus
       



    Respondents           :        1) Shri Kishor Laxmanrao Futane, aged about 53

years, Occ: business, resident of Deoli, Dist. Wardha

2) Branch Manager, State Bank of India, Branch

Deoli, District Wardha

3) Branch Manager, Canara Bank, Deori Branch,

District Wardha

4) P. S. O., Police Station, Deoli, Dist. Wardha

5) Assistant Charity Commissioner, Wardha

Shri V. K. Paliwal, Advocate for petitioners Shri Prashant Gode, Advocate for respondent no. 1 Respondents No. 2 and 3 served Shri A. R. Kulkarni, Advocate for respondents no. 4 and 5

Coram : Smt Vasanti A. Naik And V. M. Deshpande, JJ

Dated : 14th March 2016

Oral Judgment (Per Smt Vasanti A. Naik, J)

Rule. Rule made returnable forthwith. The writ petition is heard finally

at the stage of admission as the notice for final disposal was issued to the respondents

and all the respondents are duly served.

By this writ petition, the petitioners challenge the order of the Assistant

Charity Commissioner, Wardha dated 18.1.2016 partly allowing the application filed

by the respondent no. 1 under Section 41A of the Maharashtra Public Trusts Act, 1950

and restraining the petitioners from posing themselves as the Secretary and the

President of the Trust and signing on the documents in that capacity.

It is stated on behalf of the petitioners that the petitioners are the

recorded Trustees in Schedule-I and the change reports filed by the petitioners are

pending. It is stated that the respondent no. 1 who belongs to the rival group, has also

filed a change report and the same is pending. It is stated that the respondent no. 1

filed an application under Section 41A of the Act for a direction to restrain the

petitioners from administering the affairs of the Trust and posing themselves as the

President and the Secretary. It is stated that the names of the petitioners are on

Schedule-I and the record of the Trust is in possession of the petitioners and the other

elected members. It is stated that the petitioners are regularly maintaining the

accounts in respect of the income and expenditure of the Trust. It is stated that the

respondent no. 1, with a view to prevent the petitioners from managing the affairs of

the Trust, filed an application under Section 41A of the Act for an order restraining the

petitioners from managing the affairs of the Trust and posing themselves as the

Secretary and the President. It is stated that the Assistant Charity Commissioner

allowed the said application though the Authority did not have jurisdiction to do so. It

is stated that the direction cannot be issued against the President and the Secretary of

the Trust from posing to be the office bearers of the Trust and signing on the

documents in that capacity. It is stated that the impugned order suffers from a

jurisdictional error and the same is liable to be set aside. It is also stated that the Joint

Charity Commissioner, Nagpur has, by the judgment dated 17.6.2015 rejected the

application filed by the respondent no. 1 along with two others against the petitioners

under Section 41E read with Section 41A of the Maharashtra Public Trusts Act, 1950,

restraining the petitioners from interfering in the management of the Trust. It is

lastly pointed out that the very same Assistant Charity Commissioner had dismissed a

similar application filed by the respondent no. 1, by the order dated 5.8.2015 and had

held that the financial management of the Trust would be disturbed if the petitioners

are restrained from managing the affairs of the Trust and dealing with the moneys of

the Trust. It is stated that for the reasons best known to the Assistant Charity

Commissioner, a different view is recorded in the impugned order, though the Assistant

Charity Commissioner did not have jurisdiction to issue such direction.

Shri Gode, the learned counsel for the respondent no. 1 supported the

order of the Assistant Charity Commissioner and submitted that the Authority rightly

restrained the petitioners from acting as the President and the Secretary. It is stated

that in the circumstances of the case, the writ petition is liable to be dismissed.

On hearing the learned counsel for the parties, we find that the impugned

order cannot be sustained and is liable to be set aside. Under section 41A of the Act,

the Assistant Charity Commissioner would not have jurisdiction to restrain the persons

on Schedule-I from administering the Trust or posing to be the Secretary or the

President or any other office bearer of the Trust. Admittedly, the names of the

petitioners are recorded in Schedule-I of the Trust. A similar application made by the

respondent no. 1 against the petitioners was dismissed twice. The application made by

the respondent no. 1 under Section 41E read with Section 41A of the Act was rejected

by the Joint Charity Commissioner by the judgment dated 17.6.2015. It appears that

the Assistant Charity Commissioner had also dismissed a similar application filed by the

respondent no. 1 on the ground that the same was vague. Though similar allegations

are levelled against the petitioners in the present application, the said application was

allowed by the Assistant Charity Commissioner by holding that there were two rival

groups in the Trust and both the groups were claiming to be in power and their

change reports were pending. On the aforesaid ground, the petitioners could not have

been restrained from acting as the Secretary and President of the Trust, moreso, when

their names appear on Schedule-I. In the circumstances of the case, the Assistant

Charity Commissioner was not justified in allowing the application filed by the

respondent no. 1 and restraining the petitioners from posing to be the Secretary and

the President of the Trust and signing on the documents in that capacity.

Hence, for the reasons aforesaid, the writ petition is allowed. The

impugned order, sofar as it restrains the petitioners from acting as the President and

the Secretary of the Trust and signing on the documents in that capacity, is quashed

and set aside. Rule is made absolute in the aforesaid terms with no order as to costs.

             V. M. DESHPANDE, J                           SMT VASANTI A. NAIK, J
                                     
                                    
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