Vitthal Kisanrao Dalve And ... vs The Assistant Charity ...
2017 Latest Caselaw 2730 Bom

                                                               10851.2015WP.odt
                                            1


                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             BENCH AT AURANGABAD


                           WRIT PETITION NO. 10851 OF 2015



          1.       Vitthal s/o Kisanrao Dalve
                   Age: 62 years, Occ, Advocate,
                   R/o Vakilwadi, Tq. Kaij, Dist. Beed

          2.       Tatyasaheb s/o Rangnath Deshmukh
                   Age: 70 years, Occ. Agril,
                   R/o Varapgaon, Tq. Kaij, Dist. Beed           ...Petitioners


                                        Versus

          1.       The Assistant Charity Commissioner,
                   Beed.

          2.       Lakshman s/o Shivaji Bhosale
                   Age: Major, Occ. Agril,
                   R/o. Vakilwadi, Tq. Kaij, Dist. Beed.

          3.       Ravsaheb s/o Kalyan Deshmukh
                   Age: Major, Occ. Agril,
                   R/o. Varapgaon, Tq. Kaij, Dist. Beed

          4.       Bhausaheb s/o Nilkanthrao Deshmukh
                   Age: Major, Occ. Agril,
                   R/o Varapgaon, Tq. Kaij, Dist. Beed

          5.       HBP Shriram Bhagwan Maharaj
                   Age: Major, Occ. Agril,
                   R/o Vida, Tq. Kaij, Dist. Beed.         ...Respondents

                                           ...

Mr. A. R. Tapse h/f D. N. Suryawanshi, Advocate for petitioners Mr. V. D. Salunke, Advocate for respondents no. 2 to 5 Mr. S. P. Tiwari, Assistant Government Pleader for respondent no. 1 ...

10851.2015WP.odt

[CORAM: SUNIL P. DESHMUKH, J.] Date: 05th June, 2017

ORAL JUDGMENT:

1. Rule. Rule made returnable forthwith and heard

finally with consent of learned advocates for the parties.

2. Petitioners are applicants in proceedings bearing

Inquiry no. 1844 of 2008, pending before Assistant Charity

Commissioner, Beed filed for modifying scheme for

appointing trustees. In said proceedings, it appears, no

response had been earlier filed by the respondents. While

affidavit of examination-in-chief had been filed by

applicants, an application for setting aside no response

order had been moved which is stated to have been

allowed. Thereafter, it appears that the matter had been

posted for cross-examination of witnesses of the applicants.

However, neither counsel for the applicants nor the

applicants were present before the Assistant Charity

Commissioner nor did they file any application for

adjournment. In the circumstances, order dated 21st April,

2015 came to be passed against the applicants-petitioners

10851.2015WP.odt

observing that applicants are not ready to cross-examine

applicants' witnesses.

3. Application dated 8th July, 2015 had been filed on

behalf of applicants for recall of aforesaid order dated 21th

April, 2015, referring to the circumstances in which their

counsel remained absent and the order was passed.

4. Learned counsel on behalf of present respondents

contends that the reasons given under the application

dated 8th July, 2015 are not substantiated by production of

any documents, nor any affidavit has been filed and said

application dated 8th July, 2015 has been rejected by the

Assistant Charity Commissioner by an order dated 21st

September, 2015, observing that although counsel might

not have been present on 21st April, 2015, yet, it was

incumbent that the applicants ought to have been present

and further observing that the order has been passed

before seeking permission for deferring proceedings one

month back.

5. Learned counsel Mr. Tapse submits that order dated

21st September, 2015, passed by the Assistant Charity

Commissioner has been cursorily passed. He points out

10851.2015WP.odt

that while order of no response had been set aside,

thereafter proper opportunity had not been given to the

petitioners.

6. On the other hand, learned counsel for the

respondents purports to point out that while order dated

21th April, 2015 was passed, application for the same had

been moved only after long time in July, 2015 and that

delay has not been accounted for.

7. Learned Assistant Government pleader purports to

subscribe arguments for respondent.

8. In the circumstances, there may be a little delayed

movement for making application for setting aside order

dated 21st April, 2015, yet, having regard to the

background, it may not be construed otherwise and proper

opportunity may be afforded to the petitioners.

Inconvenience caused to the otherside in the process may

be appropriately considered.

9. In view of aforesaid, it is deemed expedient in the

interest of the parties that order dated 21th September,

2015, is set aside by awarding costs. As such, petition is

allowed in terms prayer clause (C), subject to payment of

10851.2015WP.odt

costs of Rs.8,000/-. The amount of costs be deposited

before the Assistant Charity Commissioner for equitable

disbursement among the present respondents except

respondent no. 1, within a period of four weeks from the

date of receipt of writ of this order. Thereafter, it is

expected that the Assistant Charity Commissioner would

proceed with the matter as expeditiously as possible and

dispose of the same preferably within a period of six

months from 3rd July, 2017. Writ petition is disposed of.

10. Rule made absolute accordingly.

[SUNIL P. DESHMUKH, J.] vdk