Gangaram S/O Natthu Khedkar And ... vs Balasaheb S/O Sahebrao Khedkar ...
2021 Latest Caselaw 6018 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD

                         FIRST APPEAL NO. 2394 OF 2020
                       WITH CA/8538/2020 IN FA/2394/2020

1.       Shri. Gangaram s/o. Natthu Khedkar,
         Age 72 years, Occu. Agriculture,

2.       Shri. Balasaheb S/o. Bhagwan Khedkar,
         Age 49 years, Occu. Agriculture,

3.       Swati Sandip Khedkar,
         Age 34 years, Occu. Household,

         All R/o. Chinchpur Ijade, Taluka Pathardi,
         District Ahmednagar.                                 .. Appellants
                                                   (Original Applicants No. 7 to 9)


                          Versus

1.       Shri. Balasaheb S/o. Sahebrao Khedkar,
         Age 50 years, Occu. Service,
         R/o. Pathardi, Taluka Pathardi,
         District Ahmednagar.

2.       Shri. Sandeep S/o. Ramnath Khedkar,
         Age 38 years, Occu. Service,
         R/o. Wagholi, Taluka Haveli,
         District Pune.

3.       Shri. Ramnath S/o. Bhagwan Khedkar,
         Age 64 years, Occu. Pensioner,
         R/o. Chinchpur Ijade, Taluka Pathardi,
         District Ahmednagar.

4.       Shri. Vishnu Sahebrao Khedkar,
         Age 39 years, Occu. Service,
         R/o. Chinchpur Ijade, Taluka Pathardi,
         District Ahmednagar.

5.       Shri. Mangal Sahebrao Khedkar,
         Age 53 years, Occu. Service,
         R/o. Chinchpur Ijade, Taluka Pathardi,
         District Ahmednagar.



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6.       Shri. Sanjay S/o. Ramrao Funde,
         Age 49 years, Occu. Service,
         R/o. Pathardi, Taluka Pathardi,
         District Ahmednagar.

7.       Sau. Jayashri Balasaheb Khedkar,
         Age 45 years, Occu. Household,
         R/o. Pathardi, Taluka Pathardi,
         District Ahmednagar.

8.       Sau. Meera Vishnu Khedkar,
         Age 34 years, Occu. Household,
         R/o. Chinchpur Ijade, Taluka Pathardi,
         District Ahmednagar.

9.       Sau. Savita Ramnath Khedkar,
         Age 58 years, Occu. Household,
         R/o. Chinchpur Ijade, Taluka Pathardi,
         District Ahmednagar.

10.      Shri. Avinash S/o. Balasaheb Khedkar,
         Age 25 years, Occu. Service,
         R/o. Chinchpur Ijade, Taluka Pathardi,
         District Ahmednagar.

11.      The Joint Charity Commissioner,
         Pune Region, Pune.                                 ..       Respondents


                                     ...
Mr. A. B. Girase, Advocate for Appellants.
Mr. V. B. Madan Patil, Advocate for Respondents No. 2 and 3
Ms. M. D. Thube-Mhase, Advocate for Respondents No. 1, 4, 5, 7 to 10
Respondent No. 11 served - absent.
                                     ...

                                             CORAM :        ANIL S. KILOR, J.

                                             DATE     :    5th APRIL, 2021

ORAL ORDER :-


                 Leave granted to delete respondent No. 6.





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2. The challenge raised in the present appeal is to the Judgment

and order dated 17th January, 2020 passed by the learned Joint Charity

Commissioner Pune Region, Pune, on Application No. 27 of 2018 filed

under Section 47 of the Maharashtra Public Trusts Act, 1950 (hereinafter

referred to as 'Act of 1950').

3. I have heard the learned counsels for the respective parties.

4. Brief facts of the present case are as under -

"Shri. Kanifnath Vidya Prasarak Mandal, Chinchpur Ijade,

Taluka Pathardi, District Ahmadnagar", is a registered Trust under the

provisions of the Act of 1950, and also under the Societies Registration

Act, 1860.

All the founder trustees of the said trust died, and therefore,

the Application under Section 47 of the Act of 1950 came to be filed before

the learned Joint Charity Commissioner, Pune Region, Pune, by the

appellants along with respondents No. 1 to 5 and 7. In view of filing of

said proceeding as per the provisions of Section 47 of the Act of 1950,

appellants as well as respondents no. 1 to 5 and 7 had withdrawn their

respective change reports.

In pursuance to the Application moved under Section 47 of

the Act of 1950, the objections and also applications were called from

those, who are interested to be included in the trust as trustees, by issuing

public notice on 07-12-2018. In the public notice, thirty days' time was

granted for the above purpose which was expired on 15-01-2019.

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Thereafter, the respondents No. 8 to 10 moved an Application

on 18-10-2019 for inclusion of their names as trustees.

Subsequently, the learned Joint Charity Commissioner passed

the impugned Judgment and order dated 17-01-2020 adding the names of

respondents No. 1 to 5 and 7 to 10, as trustees and not included the names

of appellants as trustees. Hence, this Appeal.

5. At the outset, Ms. Thube-Mhase, learned counsel appearing

for the respondents No. 1, 4, 5 and 7 to 10 raised preliminary objections to

the present Appeal on the ground that the present Appeal is not

maintainable in view of the fact that earlier the appellants had filed writ

petition challenging the impugned Judgment and order dated 17-01-2020

and said writ petition was withdrawn without seeking any liberty to file

present Appeal and, therefore, in absence of such liberty, present Appeal is

not maintainable.

She has further urged that the Appeal is liable to be rejected

on the ground of delay and laches. She submits that no Application was

moved for condonation of delay and the application which was earlier

filed, that was withdrawn.

6. Mr. Girase, learned counsel for the appellants submits that

admittedly the writ petition is not maintainable against the order of the

Joint Charity Commissioner passed under Section 47 of the Act of 1950

and the appropriate remedy is by way of an Appeal under the provision of

Section 47(5) of the Act of 1950. Accordingly, the writ petition was

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withdrawn. It is submitted that as per the well settled principles of law,

liberty is not needed while withdrawing the writ petition. For this

purpose, he has placed reliance on the judgments of the Honourable

Supreme Court of India, in the cases of - Sarguja Transport Service Versus

State Transport Appellate Tribunal M.P., Gwalior, and others 1 and

Himachal Pradesh Financial Corporation Versus Anil Garg and others2

7. As regards the delay and laches, Mr. Girase, learned counsel

for the appellants submits that in view of the pandemic situation due to

COVID-19, the Hon'ble Supreme Court of India had issued guidelines

extending the limitation during the period 15-03-2020 to 14-03-2021.

He further submits that, in spite of the said fact, as an

abundant precaution, the Application was filed explaining the delay,

however, the Registry of this Court noted that there is no delay in view of

the directions of the Hon'ble the Supreme Court of India, therefore, the

Application was withdrawn.

8. Before considering the matter on merit, it would be

appropriate to first decide the preliminary objections.

As far as first contention raised by the learned counsel for the

respondents that without obtaining any liberty from this Court, in writ

petition which was withdrawn, the present Appeal is not maintainable.

The said issue is no more res integra in view of the Judgments cited by the

learned counsel for the appellants in the cases, namely, Sarguja Transport 1 (1987) 1 Supreme Court Cases 5 2 (2017) 14 Supreme Court Cases 634

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Service and Himachal Pradesh Financial Corporation (Supra). In the said

case, the Hon'ble Supreme Court of India has observed that, where a

petitioner withdraws a petition, filed by him in the High Court under

Article 226/227 without permission to institute a fresh petition, remedy

under Article 226/227 should be deemed to have been abandoned by the

petitioner in respect of the cause of action relied on in the writ petition

and it would not be open to him to file a fresh petition in the High Court

under the same Article, though other remedies like suit or writ petition

before Supreme Court under Article 32 would remain open to him. In the

circumstances, said objection is rejected.

9. As regards the delay and laches, there were directions by the

Hon'ble Supreme Court of India, extending the limitation during the

period from 15-03-2020 to 14-03-2021. In that view of the matter, second

objection as regards the delay and laches cannot be accepted, and hence,

same is rejected.

10. Now moving to the merits of the matter, the learned counsel

for the appellants submits that, admittedly, the Application moved by the

respondents No. 8 to 10 was beyond the time prescribed for making such

Application and in that view of the matter, the learned Joint Charity

Commissioner ought not to have considered the said Application for

inclusion of their names as trustees.

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11. It is submitted that while not considering the names of the

appellants for inclusion as trustees, no reasons are given by the learned

Joint Charity Commissioner in the impugned Judgment and Order.

12. Mr. Girase, learned counsel for the appellants draws attention

of this Court to the order-sheet maintained by the learned Joint Charity

Commissioner. It is pointed out that though no interviews were held on

21-12-2019, in the impugned order, it is stated that interviews were held

on 21-12-2019. Similarly, it is pointed out that on 06-07-2019, though it is

observed that the interviews of the appellants were held along with

respondents No. 1 to 5 and 7, however, in the impugned Judgment and

Order, the names of the appellants do not appear as the trustees of the

Trust. It is, therefore, submitted that the names of the appellants were not

at all considered by the learned Joint Charity Commissioner while deciding

the Application under Section 47 of the Act of 1950.

13. Per contra, Ms. Thube-Mhase, learned counsel for the

respondents submits that the Application, though, moved on 18-10-2019

i.e. after the time period prescribed for filing such Application, the

proceeding under Section 47 of the Act of 1950 was pending before the

learned Joint Charity Commissioner, and therefore, the Application was

rightly considered and the names of respondents No. 8 to 10 were

included as trustees.

It is submitted that, no error has been committed by the

learned Joint Charity Commissioner, particularly, when the learned Joint

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Charity Commissioner acted in the interest of the trust.

14. To consider the rival contentions of both the parties, I have

perused the record and also the impugned Judgment and Order.

15. It is not disputed that all the founder trustees were died, and

therefore, the application under Section 47 of the Act of 1950 was filed by

the appellants along with respondents No. 1 to 5 and 7, jointly.

Consequently, all the change reports were withdrawn by the respective

parties and pursued their interest in the trust through Application under

Section 47 of the Act of 1950.

16. The learned Joint Charity Commissioner issued a public

notice, which was published in daily newspaper ' Kesari', on 15th December,

2018. There is no dispute that in the notice, time of thirty days was given

to the interested persons either to take objection to the Application or to

make an Application for inclusion of the names. There is no dispute that

the said period of thirty days has expired on 15 th January, 2019 and no

Application was filed by any person interested in the said trust or anyone

has raised any objection to the Application under Section 47 of the Act

filed by the respondents No. 1 to 5, 7 and 8 to 10.

It is further undisputed that the Application was moved by the

respondents No. 8 to 10 on 18-10-2019 for inclusion of their names as

trustees in the trust. The said Application was filed by respondents No. 8

to 10 after nine months of expiry of the period prescribed in the public

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notice. In the public notice, it was specifically mentioned that no

Application after expiry of thirty days' period will be considered and

entertained. Despite this, after nine months period, the application was

considered by the learned Joint Charity Commissioner without assigning

any reason.

17. At this juncture, it is necessary to consider that there may be

persons who were interested to file application for inclusion of their names

as trustees but could not file such application only because the time period

prescribed was lapsed. The learned Joint Charity Commissioner, in the

event to entertain the belated application of the respondents no. 8 to 10,

ought to have issued fresh public notice calling applications and thereby

giving opportunity to the persons similarly situated like the respondents

no. 8 to 10.

In that view of the matter, the said argument cannot be

accepted and I have no hesitation to hold that inclusion of the names of

respondents No. 8 to 10, by the learned Joint Charity Commissioner as

trustees, is contrary to its own public notice and without giving an

opportunity to the other persons, who were similarly placed.

18. As regards non-inclusion of names of the appellants are

concerned, no reasons are assigned in the impugned order for not

considering the appellants as fit persons. Whereas, the Application under

Section 47 of the Act of 1950 for appointment of trustees was jointly

moved by appellants and respondents No. 1 to 5 and 7. The names of

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respondents No. 1 to 5 and 7 were included as trustees, however, the

names of the appellants have not been considered by the learned Joint

Charity Commissioner while passing the order under Section 47 of the Act

of 1950.

19. In view of the findings recorded above, this Court does not

want to go into the arguments made in respect of errors committed by the

learned Joint Charity Commissioner while recording the order-sheet.

However, it is notable that though the appellants were interviewed, in the

impugned Judgment and Order, their names are not referred to and even

discussed either for inclusion or for non-inclusion as trustees.

20. In that view of the matter and for the reasons stated

hereinabove, I am of the considered view that this matter needs remand

for fresh consideration by the learned Joint Charity Commissioner.

21. At this stage, Ms. Thube-Mhase, learned counsel for the respondents

points out that after the impugned Judgment and Order dated 17-01-2020,

the elections were held and change reports were filed, and accordingly,

elected trustees are managing the trust as well as schools, and in that view

of the matter, present arrangement may be continued till the decision of

learned Joint Charity Commissioner on the Application under Section 47 of

the Act of 1950, afresh.

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22.              Accordingly, I pass the following order.

                                     ORDER

I)       The impugned Judgment and Order dated 17-01-2020 passed by

the learned Joint Charity Commissioner, Pune Region, Pune, in

Application No. 27 of 2018, filed under Section 47 of the Act of

1950, is hereby quashed and set-aside.

II) The learned Joint Charity Commissioner, Pune Region, Pune, is

directed to decide the matter, afresh, from the stage of interview.

It is further made clear that, the applications which were

received for inclusion, before expiry of thirty days as given in the

public notice dated 15th December, 2018, such applications only be

considered.

III) The learned Joint Charity Commissioner, Pune Region, Pune is

directed to decide the Application under Section 47 of the Act,

1950, afresh, within a period of six months from today.

IV) The parties are directed to remain present before the learned Joint

Charity Commissioner, Pune Region, Pune on 7th June, 2021.

V) The respondents no. 1 to 5 and 7 to 10 are directed not to take any

major decision, including termination or appointment of any

employee or any major financial decision except decision relating to

the day-to-day management of the school.

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VI)      The learned Joint Charity Commissioner, Pune Region, Pune is at

liberty to issue fresh public notice and call fresh application, if he

thinks fit in the facts and circumstances of the case.

VII) The First Appeal is disposed of. Pending civil application for stay

stands disposed of accordingly.

( ANIL S. KILOR ) JUDGE rrd