Bombay High Court
Shri. Shankar S/O. Rajeshwar ... vs Shri. Madhukar S/O. Vishwanath ... on 5 May, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.468 OF 2016
1] Shri Shankar s/o Rajeshwar Warhate,
Aged adult, Occ: Service,
R/o Pragati Nagar, Ward No.4,
At Post Wani, Tq. Wani,
Dist. Yavatmal.
2] Shri Avinash s/o Deorao Thawri,
Aged 50 years, Occ: Service,
R/o Guru Nagar, Ward No.7,
At Post Wani, Tq. Wani,
Dist. Yavatmal. ....... APPELLANTS
...V E R S U S...
1] Shri Madhukar s/o Vishwanath Thawri,
Aged adult, Occ: Retired Clerk,
R/o Guru Nagar, Ward No.7,
At Post Wani, Tq. Wani,
Dist. Yavatmal.
2] Shri Tulsiram s/o Domaji Tamgadge,
Aged about 65 years,
Occ: Retired Teacher,
R/o Sawarda, Tq. Wani,
Dist. Yavatmal.
3] Shri Waman s/o Ghularamji Milmile,
Aged about 66 years,
Occ: Retired Teacher,
R/o Deshmukh Wadi, Ward No.2,
Wani, Tq. Wani, Dist. Yavatmal.
4] The Joint Charity Commissioner,
Amravati Region, Amravati. ....... RESPONDENTS
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Mrs. Kirti Kapse (Satpute), Advocate for Appellants.
Dr. Anjan De, Advocate for Respondent Nos.1 to 3.
Shri M.A. Kadu, AGP for Respondent No.4.
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CORAM: R.K. DESHPANDE, J.
th MAY, 2016.
DATE: 5
ORAL JUDGMENT
1] Admit.
2] Heard finally by consent of the learned counsels appearing
for the parties.
3] The challenge in the appeal is to the order dated 30.03.2016
passed by the learned Joint Charity Commissioner, Amravati on the
Application No.11 of 2010 filed under Section 47 of the Maharashtra
Public Trusts Act ("said Act" for short). The application has been allowed
and the ad-hoc body consisting of the respondents as the members of it
has been constituted for the period of six months. The ad-hoc body is
directed to conduct the election within a period of three months from the
date of the order and they are also directed to appoint independent
person as an election officer for election with direction to him to prepare
upto date the electoral list of the members and fix the election
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programme in the month of May, 2016.
4] With the assistance of the learned counsels appearing for the
parties, I have gone through the findings recorded by the learned Joint
Charity Commissioner. Prima facie it is not possible to ascertain from the
findings as to how the provisions of Section 47 of the Maharashtra Public
Trusts Act has been attracted. The change reports are pending for
adjudication, the findings as are required under Section 47 are not found
in the judgment. In view of this, the applicant has made out a prima facie
case for grant of an interim order.
5] Though, the order was passed by the learned Joint Charity
Commissioner on 30.03.2016 the operation of it was stayed till
30th April, 2016. Dr. Anjan De, the learned counsel appearing for the
respondent Nos.1 to 3 submits that immediately on 1st May, 2016, the
election officer has been appointed and the process of holding fresh
elections has commenced. He submits that the result of such elections
can be made subject to the result of this first appeal.
6] In view of the fact that the order impugned was stayed till
30th April, 2016 and the prima facie case is made out by the appellant
and also the finding recorded by the learned Joint Charity Commissioner
there shall be stay to the judgment and order dated 30.03.2016 passed in
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Application No.11 of 2010, which shall operate pending the decision of
the appeal.
7] At this stage Dr. Anjan De, the learned counsel appearing for
the respondent Nos.1 to 3 submits that the matter can be disposed of, as
he concedes to the position that the learned Joint Charity Commissioner
has failed to record his findings on the aspects which are relevant under
Section 47 of the Maharashtra Public Trusts Act. In view of the fact that
the order passed by the learned Joint Charity Commissioner suffers from
non-application of mind to the provisions of Section 47 of the said Act,
the impugned order dated 30.03.2016 in this appeal cannot be sustained
and by consent of the parties it is required to be quashed and set aside
with an order of remand.
8] In the result, the appeal is allowed. The judgment and order
passed in Application No.11 of 2010, is hereby quashed and set aside.
The matter is remitted back to the learned Joint Charity Commissioner
for decision afresh in accordance with law. The parties to appear before
the learned Joint Charity Commissioner on 09.05.2016. The learned
Joint Charity Commissioner to decide the application within a period of
three months from the date of first appearance of the parties before him.
No order as to costs.
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9] The appellant to comply with all other office objections
regarding payment of Court fee and the remaining objections are
dispensed with.
JUDGE
NSN
