Bombay High Court
Shri. Purushottam Shankar ... vs Shri. Mahadeo S/O. Sakharam ... on 30 November, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.1366 OF 2016
PETITIONER: Shri Purushottam Shankar Katekhaye,
aged 48 years, Occ. Service, R/o
(Orig. A. No.2)
Pauni, Distt. Bhandara.
-VERSUS-
RESPONDENTS: 1. Shri Mahadeo S/o Sakharam
Mathurkar, aged about 76 years,
(Orig. Applicant
ig Occ. Retired, R/o Ward Sukharwari,
no1.)
Pauni, Bhandara.
(Orig. N.A. No.3) 2. Ramchandra Rushi Chilbule (Dead),
Orig. Interveners 3. Vilas Ramkrushna Katekhaye, aged
No.3 to 13. adult, R/o Vithal Kujri, Pauni,
Bhandara,
4. Sou. Poonam Vilas Katekhaye, aged
adult, R/o Vithal Kujri, Pauni,
Bhandara.
5. Harihar Ramchandra Kurzekar, aged
adult, R/o Konda Koshra, Tq. Pauni,
Bhandara.
6. Ramesh Vitthalrao Likhar, aged
adult, R/o Belgota, Pauni, Distt.
Bhandara.
7. Assistant Charity Commissioner,
Near Muslim Library, Bhandara.
8. Ramkrushna Zibalji Katekhaye
(Dead),
9. Shri Sunil Balaji Mahakalkar, aged
about 46 years, R/o Near Chitnis
Park, Shyam Talkies, Near Badkas
Chowk Nagpur.
10. Shri Rajendra Manoharrao Malvi,
aged about 39 years, R/o Pauni,
Distt. Bhandara.
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11. Shri Vijay Nathuji Talmale, aged
about 44 years, R/o Chatrapati
Chowk, Talmale Hall, Nagpur.
12. Shri Bhuveneshwar Rameshrao
Dipte, aged about 46 years, R/o
Pauni, Distt. Bhandara.
13. Shri Mukesh Vitthalrao Bawankar,
aged about 40 years, R/o Pauni,
Distt. Bhandara.
Shri V. K. Paliwal, Advocate for the petitioner.
Shri A. M. Ghare, Advocate for respondent No.3.
Shri Chutke, Assistant Government Pleader for respondent No.7.
ig CORAM: R. K. DESHPANDE, J.
DATED
: 30
NOVEMBER, 2016.
th
ORAL JUDGMENT :
1. Rule made returnable forthwith and heard finally with the
consent of the learned Counsels for the parties.
2. The application filed by the petitioner for transposing him
as an appellant in Misc. Judicial Case No.57/2013 has been rejected by
the learned Ad hoc District Judge-1, Bhandara by an order dated
21-1-2016 passed below Exhibit-48.
3. It is not in dispute that the petitioner was applicant no.2 in
the application No.2/2002 filed under Section 50A of the Maharashtra
Public Trust Act before the Assistant Charity Commissioner, Bhandara
for framing a scheme. The application was allowed on 5-9-2013 against
which one of the non-applicants namely Shri Narayan Maroti Telmase
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preferred Misc. Judicial Case No.57/2003 under Section 72(1) of the
said Act. Similarly, applicant no.1 in the original proceedings also
preferred separate appeal registered as Misc. Judicial Case No.55/2013
which is pending for adjudication. Narayan Maroti Telmase died on 10-
10-2013. He was the sole applicant in Misc. Judicial Case No.57/2013.
Thereafter, respondent no.2 Ramchandra also filed an application for
transposition as the applicant in Misc. Judicial Case No.57/2013. He
also expired on 4-5-2014. The petitioner who was the respondent No.8
in both the appeals preferred an application Exhibit-48 in Misc. Judicial
Case No.57/2013 for transposing him as the appellant. The learned
District judge has rejected the said application.
4. The claim of the petitioner for transposition as the
applicant in Misc. Judicial Case No.57/2013 has not been considered on
the touch stone of the relevant provisions of law. The Court has to
record the finding as to whether he can be said to be a person interested
or a member of a Trust or that he was aggrieved by the order passed by
the Assistant Charity Commissioner framing the scheme under Section
50A of the Bombay Public Trust Act. It is also the objection raised that it
was open for the petitioner to have filed a separate appeal under Section
72(1) of the said Act if he was aggrieved within a period of limitation as
prescribed therein. It is also urged that the petitioner is the respondent
in another appeal i.e. Misc. Judicial Case No.55/2013 and he shall be
heard by the appellate Court in the said matter. The consideration of all
these relevant aspects does not find place in the order impugned in this
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petition. The order, therefore, suffers from non-application of mind to
the relevant aspects of the matter with reference to the provisions of law
and hence, the same cannot be sustained. The matter will have to be
sent back to the lower appellate Court for decision afresh in accordance
with law.
5. In the result, the writ petition is partly allowed.
6. The order dated 21-1-2016 passed below Exhibit-48 in
Misc. Judicial Case No.57/2013 is hereby quashed and set aside.
7. The matter is remitted back to the Ad hoc District Judge,
Bhandara to consider the application at Exhibit-48 keeping in view the
observations made by this Court and after hearing all the parties
concerned.
8. The parties shall appear before the lower appellate Court
on the date as might have been fixed by the lower appellate Court.
JUDGE
//MULEY//
