Bombay High Court
Dr. Dayaram S/O Bondkuji ... vs Nanasaheb Vithobaji Tekade, ... on 27 July, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
LETTERS PATENT APPEAL NO. 7 OF 2009
in
WRIT PETITION NO. 342 OF 2008
1. Dr. Dayaram S/o. Bondkuji Choudhari,
Aged about 52 years,
Occupation : Doctor,
R/o. New Subhedar Layout,
Hoodkeshwar Road, Nagpur
2. Gunwant s/o. Domaji Ingole,
aged 53 years, Occ. Business,
R/o. Janki Nagar, Nagpur
3. Narayan s/o. Damji Wanjari,
aged about 62 years,
Occ. Retired Teacher,
R/o. Near Water Tank,
Dattatraya Nagar, Nagpur ... APPELLANTS
Versus
1. Nanasaheb Vithobaji Tekade,
Aged about Major,
R/o. 56, Reshimbag, Nagpur
2. Mamta w/o. Nanasaheb Tekade,
Aged about Major,
R/o. 56, Reshimbag, Nagpur
3. The Deputy Charity Commissioner,
Civil Lines, Nagpur ... RESPONDENTS
Shri. A. Shelat, Advocate for the appellants.
Shri. M.B. Turankar, Advocate for respondent no. 2.
Shri. Palshikar, AGP for respondent no.3.
.....
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CORAM : B.P. DHARMADHIKARI &
ROHIT B. DEO, JJ.
JULY 27, 2017.
ORAL JUDGMENT : (PER B.P.DHARMADHIKARI, J.)
Heard, Advocate Shri. Shelat. He is at pains to point out
that learned Single Judge has by ignoring the issue regarding
resignations was a disputed issue, made certain observations,
though the same was pending in Change Report Proceeding. He
further submits that finding of fact that the said resignation was
send by appellants to the petitioners reached by learned Single
Judge is also unacceptable. He argued that finding that the
tenure of present appellants had then already expired is also
erroneous.
2. Lastly, it is pointed out that as the challenge in Writ
Petition No. 342 of 2008 before learned Single Judge was to
directions issued under Section 41 A of Maharashtra Public Trust
Act, the judgment is void and petition should have been placed
before Division Bench for consideration.
3. Shri. M.B. Turankar, Advocate for respondent no. 2 and
learned AGP on behalf of respondent no. 3, are opposing these
contentions.
4. Respondents submit that till the law was settled by
Division Bench of this Court in case of Vanmala Mahadeorao
Kamdi & Ors ...Vs.. The Deputy Commissioner and Ors - 2012
(3)Mh. L.J. 594, all matters were placed before learned Single
Judge. Advocate Shri. Turankar adds that observations made by
learned Single Judge in impugned judgment are only prima facie
in nature to find out whether any of the legal rights of
respondents were violated. He adds that during pendency of
this petition, Change Report Proceeding are already finally
decided and the reports filed by respondent nos. 1 and 2 have
been accepted.
5. Advocate Shri. Shelat disputes this. According to him, the
impart of observations of learned Single Judge on such
adjudication can not be ignored.
6. We have no hesitation to accept statement made by
Advocate Shri. Turankar that all change report proceedings are
now over. However, if any such adjudication is prejudiced
because of observations made by learned Single Judge in
impugned judgment, it is open to appellants to demonstrate the
same if any appeal or other proceedings in relation to such
resignation or Change Report is pending before any forum. That
forum has to adjudicate upon controversy as per material
legally produced before it. We direct that neither the
observations by learned Single Judge in impugned judgment
shall be used to influence such consideration nor such authority
shall get influenced thereby.
7. In this situation, though the developments in the legal
field in 2013 show that judgment delivered by learned Single
Judge is without jurisdiction, even if that petition is treated as a
petition before the Division Bench, we find that in changed
situation, nothing better can be done.
8. Accordingly, with these directions and observations, we
dispose of LPA.
9. No cost.
JUDGE JUDGE
******
Belkhede, PA
