Shahurao Madhavrao Deshmukh & Anr vs The State Of Mah & Ors
2017 Latest Caselaw 3968 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD.


                      914 FIRST APPEAL NO. 3018 OF 2016

  1.       Shahurao S/o Madhavrao Deshmukh
           Age : 47 years, Occu : Agriculture,
           R/o. Narsi (Namdev), Tal. & Dist. Hingoli


  2.       Deelip S/o Rajeshwarrao Tarafdar
           Age : 52 years, Occu : Agri, 
           R/o. Narsi (Namdev), 
           Tal. & Dist. Hingoli                        .. Appellants
                                                  (Original Petitioners)
                   VERSUS 

  1.       The State of Maharashtra, 
           General Administration Department & 
           Co-operative Department, 
           Mantralaya, Mumbai. 

  2.       The Assistant Charity Commissioner
           Parbhani, Dist. Parbhani 

  3.       Tahsildar, 
           Tahsil Office, Hingoli
           Tal. & Dist. Hingoli 

  4.       Bhikaji S/o Bhimashankar Kirtankar, 
           Age : 47 years, Occu : Agri, 
           R/o. Narsi (Namdev), Tal. & Dist. Hingoli 

  5.       Subhash S/o Raghoji Hule 
           Age : 62 years, Occu : Agri., 
           R/o. As above 

  6.       Dhondiba S/o Aaneba Labhade
           Age : 62 years, Occu : Agri, 
           r/o. As above 

  7.       Narsaji S/o Tukaram Gugale 



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           Age : 47 yars, Occu : Agri, 
           R/o. As above

  8.       Devaba S/o Panduji Mule
           Age : 57 years, Occu : Agri, 
           R/o. Masod, Tal. Sengaon, 
           Dist. Hingoli 

  9.       Dattarao S/o Niloba Jadhav
           Age : 60 years, Occu : Agri, 
           R/o. Narsi (Namdev)
           Tal. & Dist. Hingoli 

  10.      Ganeshlal Shankarlal Bahete
           Age : 67 years, Occu : Agri, 
           R/o. As above 

  11.      Ramrao S/o. Sakharam Solanke 
           Age : 37 years, Occu : Agri, 
           R/o. As above. 

  12.      Bhagwan S/o. Maharaji Sapatgaonkar 
           Age : 67 yers, 
           R/o. Sapatgaon, Tal.Sengaon, 
           Dist.Hingoli 

  13.      Bharat Maharaj
           Age : 42 years, R/o. Kolsa, 
           Tal. Sengaon, Dist. Hingoli 

  14.      Gyanba S/o. Sakharam Temkar
           Age : 56 years, Occu : Agriculture, 

  15.      Bikulal s/o Rameshwar Baheti
           Age : 55 years, Occu : Agriculture

  16.      Chandramohan s/o. Kundanprasad Tiwari 
           Age : 55 years, Occu : Agriculture, 

  17.      Satish S/o Naraharrao Vidolkari 
           Age : 52 years, Occu : Agriculture

  18.      Vithal s/o. Punjaji Washimkar



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           Age : 50 years, Occu : Agriculture, 
           All R/o. Narsi (Namdeo) 
           Tal. & Dist. Hingoli                           ..Respondents
                                                        (Orig. Respondents) 
                                     ..........

  Advocate for Appellants              :           Mr. S.V. Mundhe
  AGP for Respondents no.1 to 3/State :            Mr. S.P. Sonpawale 
  Advocate for respondent Nos.5to 7,9, 
  10 to 12                             :           Mr. K M Nagarkar 
  Advocate for respondent Nos.4, 8, 
  10 to 13                             :           Mr. M.V. Choudhari & 
                                                   Mr. A.G. Godhamgaonkar 
  Advocate for Respondent Nos.14 to 18:            Mr. S.G. Nandedkar 
  Advocate for Respondent nos.4, 5, 
  7, 12, 13                              :         Mr. S.S. Londhe 
                               ..........

                                                      CORAM : P.R. BORA, J. 

Dated: July 04, 2017

ORAL JUDGMENT :

. Heard learned Counsel appearing for the respective

parties. Perused the impugned Judgment and the other material

placed on record. The appellants have challenged the Judgment and

order dated 31.08.2004 passed by the Learned Assistant Charity

Commissioner, Parbhani, in Enquiry Application No.152/2004,

which has been confirmed by the learned Additional District Judge,

Hingoli, in Misc. Civil Application No.42/2004 decided on

26.04.2006. In Enquiry Application No.152/2004 the Assistant

Charity Commissioner has framed the scheme for the management of

subject Public Trust. The only objection raised in the present appeal

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in exception to the aforesaid Judgments and which requires

consideration is, whether the present appellants were liable to be

heard in the proceedings before the Assistant Charity Commissioner

before framing of the scheme.

2. The learned Counsel appearing for the appellants read

out sub section (2)(b) of Section 50 A of the Public Trust Act, 1950,

(hereinafter referred to as the 'Act') and submitted that, as envisaged

in the aforesaid provision, the learned Assistant Charity

Commissioner before settling the scheme for administration of the

subject trust under Section 50 A of the Act must have given a due

notice and opportunity of hearing to the present appellants since they

are the persons having interest in the affairs of the trust. The learned

Counsel further submitted that, since the learned Assistant Charity

Commissioner did not give such opportunity to the appellants the

scheme allegedly framed under Section 50-A of the Act is liable to

be set aside on this sole ground of non-compliance of the aforesaid

mandatory requirement.

3. The objection so raised in the appeal is liable to be

rejected for the reason that, the subject matter does not fall within the

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purview of Section 50A(2)(b) of the Act.

4. The application which was preferred before the

Assistant Charity Commissioner was admittedly for framing of the

scheme in respect of the subject trust. It was thus, an application

under Section 50 A (1) of the Act. The said section reads thus :

Section 50 A (1) : Notwithstanding anything contained in section 50, where the Charity Commissioner has reason to believe that, in the interest of the proper management or administration of a public trust, a scheme should be settled for it, or where two or more persons having interest in a public trust make an application to him in writing in the prescribed manner that, in the interest of the proper management or administration of a pubic trust, a scheme should be settled for it, the Charity Commission may, if, after giving the trustees of such trust due opportunity to be heard, he is satisfied that it is necessary or expedient so to do, frame a scheme for the management or administration of such public trust.

5. It is not in dispute that, at the relevant time, Tahsildar

was the sole trustee, who was looking after the affairs of the trust

since 1989. It is also undisputed that the Tahsildar was duly served

by the notice from the office of the Assistant Charity Commissioner

before the scheme was framed. The material on record reveals that at

the relevant time, the Tahsildar was busy with election programme

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and as such could not appear before the Assistant Charity

Commissioner and could not submit his say in the matter before the

Assistant Charity Commissioner. In the circumstances the learned

Assistant Charity Commissioner on the basis of material brought

before him framed the scheme for the proper management of the

subject trust. The order passed by the Assistant Charity

Commissioner though was challenged before the District Court, no

interference is caused in the said order.

6. As noted earlier the only objection raised by the

appellant is that though they are the persons having interest in the

affairs of the trust, they were not heard by the Assistant Charity

Commissioner before framing the scheme. The appellants have

alleged non-compliance of section 50A (2)(b) of the Act, which

reads thus :

50A. Power of Charity Commissioner to frame, amalgamate or modify schemes.

(1).....

(2) Where the Charity Commissioner is of opinion that in the interest of the proper management or administration, two or more public trusts may be amalgamated by framing a common scheme for the same, he may, after -

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(a) publishing a note in the Official Gazette

[and also if necessary in any newspaper which in the opinion of the Charity Commissioner is best calculated to bring to the notice of persons likely to be interested in the trust] with a wide circulation in the region in which the trust is registered, and

(b) giving the trustees of such trusts and all other interested persons due opportunity to be heard,

frame a common scheme for the same.

7. Plain reading of the aforesaid provision makes it clear

that, it prescribes the procedure to be followed if two or more trusts

are to be amalgamated by framing a common scheme for the same.

In such a case, notice and due opportunity of hearing is necessary to

be given to the trustees of such trusts and all other persons interested

in the affairs of the said trusts. It is thus evident that, the aforesaid

provision cannot be applied to the application or proceeding initiated

under Section 50A (1) of the Act.

8. In the present matter the scheme has been admittedly

framed under Section 50A (1) of the Act wherein the only

requirement was that a notice and opportunity of hearing is given to

the trustees of the said trust for the management of which the scheme

has been framed. As has been noted earlier, Tahsildar was

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undisputedly the only trustee of the subject trust and he was given

due notice and also the due opportunity of hearing. It therefore does

not appear to me that, there is any substance in the objection raised

by the appellants against the Judgment and order passed by the

Assitt. Charity Commissioner as well as by the learned Additional

District Judge.

9. The appellants have wrongly relied upon the provisions

under Sec.50A (2)(b) of the Act in order to support their contention.

As noted by me herein above, the said provision is not applicable in

the present matter. The appeal is thus devoid of any merit. Hence the

following order.

                                      ORDER


  i)       The appeal is dismissed.
  ii)      Interim order passed stands vacated.
  iii)     Pending Civil application, if any, stands disposed of.




                                                    (P.R. BORA, J.) 



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