Mr. Harshal S/O Uddhav Aarvikar vs Shri Jagjeet Singh Gurusharan ...
2017 Latest Caselaw 1521 Bom

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   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             NAGPUR BENCH, NAGPUR

                  Writ Petition No.1905 of 2017,
                  Writ Petition No.1906 of 2017,
                  Writ Petition No.1907 of 2017,
                  Writ Petition No.1908 of 2017
                                And
                  Writ Petition No.1909 of 2017


  Mr. Harshal s/o Uddhav Aarvikar,
  Aged 44 years,
  Occupation - Business,
  Resident of 101, Sanket Apartments,
  Dharampeth, Nagpur.                              ... Petitioner/
                                                   Ori.Intervenor

       Versus

  1. Shri Jagjeet Singh Gurusharan Singh,
     Aged about 51 years,
     Occupation - Civil Engineer,
     R/o 5AF, Greet Park Colony,
     Tagore Road, Civil Lines,
     Nagpur-01.

  2. Shri Ashwin Krushnarao Ghatate -              ... Ori.Applicant
     Aged major, Occupation - Business,
     R/o Goku. VIP Road, Civil Lines,
     Nagpur.                                       ... Respondents


  Ms Radhika Bajaj, Advocate for Petitioner.
  Shri Mahesh Dandekar, Advocate for Respondent No.1.




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                Coram : R.K. Deshpande, J.

th Dated : 7 April, 2017

Oral Judgment :

1. Rule, made returnable forthwith. Heard finally by

consent of the learned counsels appearing for the parties.

2. All these petitions challenge the order dated 4-3-2017

passed by the learned Assistant Charity Commissioner, Nagpur,

in different change reports rejecting the applications filed under

Section 73A of the Maharashtra Public Trusts Act, 1950 for

intervention. The reasons assigned are - (i) that the

petitioner-intervenor was not a trustee and not even a member of

the Trust on 10-2-2009, (ii) that there is no ground made out as

to how the petitioner-intervenor is a person having interest in the

Trust at the time of passing of the resolution on 10-2-2009,

(iii) that the petitioner-intervenor has not demonstrated as to

how his impleadment would assist the authority in determining

the change reports, and (iv) that the petitioner-intervenor cannot

be termed as "necessary party" in these change reports.

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3. On 30-3-2017, this Court passed an order as under :

" The orders impugned passed by the Assistant Charity Commissioner, Nagpur on 4-3-2017 and 18-3-2017, by which the application filed by the petitioner for intervention came to be rejected, appear to be based upon misconception of facts. The petitioner appears to have been enrolled as a member of the Trust on 17-2-2009, and by the order passed by the Joint Charity Commissioner, Nagpur on 19-5-2015, he was appointed as Co-opted Administrator. However, the orders impugned hold that prior to filing of Change Report on 20-2-2009, the petitioner was not enrolled as a member of the Trust and was a Trustee.

Issue notice for final disposal of the matter, to the respondents, returnable on 3-4-2017.

The respondents be served through their counsel appearing in the proceedings before the Assistant Charity Commissioner.

The examination-in-chief of the witnesses may go on, however the evidence shall not be concluded till the returnable date.

Steno copy of this order be furnished to the

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learned counsel for the petitioner to act upon."

4. Notice for final disposal of the matter was issued to the

respondents. Both the respondents are served. No one appears

for the respondent No.2, though the name of Shri U.A. Gosavi,

Advocate, has been shown. Shri Mahesh Dandekar, the learned

counsel, appears for the respondent No.1, and he has opposed

the claim made in these petitions.

5. It is not in dispute that Change Report No.219 of 2009

was filed on the basis of the change which occurred on

17-2-2009, and the date of 10-2-2009 menioned in the order

impugned, is factually incorrect. The learned counsels appearing

for the parties agree that no change occurred on

10-2-2009. The change occurred on 17-2-2009, and in the said

meeting, the petitioner-intervenor as well as the respondent

No.1, the contesting party, were enrolled as members in the

proceedings, a copy of which is annexed on page 73 of this

petition. The name of the respondent No.1 appears at serial

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No.3, whereas the name of the petitioner-intervenor appears at

serial No.33. Subsequently, the changes occurred during 2009 to

2012, when the petitioner-intervenor was a member of the Trust.

The petitioner was, therefore, a person having interest when

these change reports were filed. The petitioner had filed the

applications under Section 73A of the said Act for intervention.

The petitioner was also co-opted as an Administrator over the

Trust by an order dated 19-5-2016 passed by the Joint Charity

Commissioner.

6. In view of the aforesaid undisputed factual position, the

learned Assistant Charity Commissioner has committed an error

in holding that the petitioner was not enrolled as a member of

the Trust when Change Report No.219 of 2009 was filed on

20-2-2009. Undisputedly, when the other change reports were

filed, the petitioner was already a member of the Trust. The

decision relied upon by the learned Assistant Charity

Commissioner in the case of Chetan Mehta v. State of

Maharashtra & Ors., reported in 2008(6) ALL MR 189, would not

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be applicable to the facts of this case to urge that the

petitioner-intervenor has not demonstrated as to how his

impleadment would assist the authority in determining the

change report, for the reason that this Court was dealing with the

proceedings under Section 41-D(1)(f) of the Maharashtra Public

Trusts Act and not with the change report, which has been

emphasized by this Court in the said decision itself.

7. The definition of "person having interest", provided

under Section 2(10) of the said Act, contemplates that if any

person, who has interest in the Trust, then such person is entitled

to claim intervention in the proceedings of the Trust. The

provision of Section 73A of the Maharashtra Public Trusts Act is

wide enough to include even the persons who were not the

members of the Trust on the date of filing of the change report,

provided they satisfy other criteria available, to be called as the

person having interest in the Trust. The attention of this Court is

also invited to the order dated 18-3-2017 passed below

Exhibit 26 in Change Report No.219 of 2009, whereby an

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application for intervention of one Ratan Ganesh Baisware, who

was also enrolled as a member of the Trust on 17-10-2009, has

been allowed. The respondent No.1 was also enrolled as a

member of the Trust on 17-2-2009. In such a situation, there

could not have been different orders in the case of the present

petitioner, but to permit him to be joined as the necessary party

by way of intervention.

8. In view of above, all these petitions are allowed. The

order dated 4-3-2017 passed in all the change reports rejecting

the application of the petitioner under Section 73A of the

Maharashtra Public Trusts Act are hereby quashed and set aside.

All the applications filed by the petitioner are allowed. The

learned Assistant Charity Commissioner to proceed with the

matter in accordance with law.

9. Rule is made absolute in above terms. No order as to

costs.

JUDGE.

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Lanjewar.