Bhivaji S/O. Paikaji Vidhate And ... vs Shri. Manohar S/O. Nanaji Rode And ...
2017 Latest Caselaw 5691 Bom

        wp6832.15.J.odt                                                                                               1/5    


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


                                  WRIT PETITION NO. 6832 OF 2015


        1]   Bhivaji S/o Paikaji Vidhate,
              Aged about 72 years.

        2]  Pandurang S/o Somaji Dahule,
             Aged about 42 years, 

             Both R/o-Village Dhanoli, Post Pirli,
             Tah-Bhadravati, Dist-Chandrapur.                                              .....PETITIONERS

                          ...VERSUS...

        1]  Shri. Manohar S/o Nanaji Rode,
             Age - Not known.

        2]  Shri. Praful S/o Vishwas Rode,
              Age - Not known.

        3]  Shri. Ramesh S/o Namdeo Rode,
             Age - Not known.

        4]  Shri. Ghanshyam S/o Ramchandra Rode,
              Age - Not known.

        5]  Shri. Jagannath S/o Namdeo Rode,
             Age - Not known.

        6]  Shri. Anil S/o Deorao Rode,
             Age - Not known.

        7]  Shri. Ravindra S/o Pandurang Rode,
             Age - Not known.

             All Respondent Nos.1 to 7 R/o-Village Dhonali,
             Post Pirli, Tah-Bhadravati, Dist-Chandrapur. ... RESPONDENTS




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         wp6832.15.J.odt                                                                                               2/5    


        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri Ashish Kadukar, Advocate for the Petitioners.
        Shri Rohit Joshi, Advocate for the Respondent No.1
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                           CORAM  :   S. C. GUPTE, J.

th DATE : 7 AUGUST, 2017.

ORAL JUDGMENT :

Heard learned counsel for the parties.

2] Rule. Taken up for hearing forthwith by consent of

counsel for the parties.

3] The Writ Petition challenges an order of 'no cross'

passed by Assistant Charity Commissioner, Chandrapur on a

change report inquiry. In a pending inquiry for considering a

change report (inquiry No.256/2011) filed by the respondents

herein (original applicants), the petitioners were objectors. There

was also a scheme filed by the respondents under Section 50-A(1)

of the Bombay Public Trusts Act, 1950 which was pending

consideration before the Assistant Charity Commissioner,

Chandrapur. The respondents filed their reply to the petitioners'

objection. Respondent No.3, thereafter, filed his affidavit of

wp6832.15.J.odt 3/5

evidence in the matter on 23rd August, 2012. The matter was fixed

for cross-examination on 8th October, 2012. On 8th October, 2012

the matter was, however, referred to the Mediation Center for

exploring the possibility of an amicable settlement. The mediation

failed and the matter was sent back to the Charity Commissioner

for further hearing. At that stage, the petitioners moved an

application for clubbing the two pending matters, namely, the

change report inquiry and the scheme petition. This application

was rejected by the Assistant Charity Commissioner. It appears

that in the meantime, counsel appearing for the petitioners was

appointed a Judge of District Consumer Forum. The petitioners

claim that they were under a bonafide impression that the matter

was proceeding in a proper manner. However, since their counsel

was appointed as a Judge of the District Consumer Forum, nobody

appeared for the petitioners/objectors on 4 th March, 2015 when the

matter was fixed for cross-examination of respondent No.3. In the

premises, the Assistant Charity Commissioner passed an order of

'no cross' and thereafter, fixed the matter for evidence of the

petitioners/objectors. Even at that stage none appeared for the

petitioners and the matter was closed for final arguments. When

the petitioners engaged new counsel on 17 th April, 2015 and sought

wp6832.15.J.odt 4/5

details of the pending proceeding, they claim to have learnt that

the matter proceeded without their cross and their own evidence

and was eventually fixed for final arguments. The petitioners, in

the premises, moved an application for setting aside the order of

'no cross' and seeking permission to cross-examine the applicants

and lead evidence of the objectors. By the impugned order passed

on 1st September, 2015, the Assistant Charity Commissioner

rejected the petitioners' application, purportedly on the ground that

it did not disclose the reasons for the objectors' absence and

inability to cross-examine and adduce evidence in the matter.

04] Though learned counsel for the respondents is right in

submitting that there is no case that the petitioners had no

intimation from their counsel about her appointment as a Judge of

District Consumer Forum, it is still a matter of fact that her

Vakalatnama was on record when 'no cross' order was passed. It is

also not disputed that she was in fact appointed as a Judge of the

District Consumer Forum. What emerges from this discussion is

that though some blame must be laid at the door of the petitioners,

it is equally true that the matter proceeded in their absence in the

peculiar facts and circumstances noted above and as a result, they

wp6832.15.J.odt 5/5

ended up being denied an opportunity to contest the change report.

Taking an overall view of the matter, it seems to be in the interest

of justice that the impugned order is set aside and the petitioners

are afforded an opportunity to cross-examine the respondents'

witness and also produce their own evidence. The petitioners,

however, will have to pay costs occasioned by this order, since their

conduct, as noted above, is not without any blemish.

5] Accordingly, the impugned order of the Assistant

Charity Commissioner dated 1st September, 2015 is quashed and

set aside and the matter is remanded to the Assistant Charity

Commissioner for a fresh hearing in accordance with law.

6] The petitioners shall pay costs of the petition quantified

at Rs.25,000/- to the respondents. Costs to be condition precedent.

7] Rule is made absolute in the above terms and the

petition is disposed of. No order as to costs.

JUDGE PBP