Bombay High Court
Bapurao Zukli Shende And Another vs Vijay Pandurang Gawande And ... on 9 August, 2021
Bench: S. M. Modak
1sa184.17 with connected. 1/5
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL (SA) NO. 184/2017
(Gumdeo Adkuji Sonawane and another Versus Vijay Pandurang Gawande and others)
WITH
SECOND APPEAL (SA) NO. 210/2017
(Dilip Manohar Kousurkar and others Versus Shri Vijay Pandurang Gawande and others)
WITH
SECOND APPEAL (SA) NO. 185/2017
(Shri Bapurao Zukli Shende and another Versus Shri Vijay Pandurang Gawande and others)
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
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Shri S.N. Bhattad, Advocate for appellants. [S.A. Nos. 184,210 and 185/2017]
Shri Rohit Vaidya, Adv. h/f Shri Anand Parchure, Advocate for respondent Nos. 1 to 7, 9
and 10. [S.A. Nos. 184, 185 and 210/2017]
CORAM : S.M. MODAK, J.
DATE : 09/08/2021
Heard learned Advocate Shri S.N. Bhattad for the
appellants and learned Advocate Shri Rohit Vaidya h/f Shri Anand
Parchure for Respondent Nos. 1 to 7, 9 and 10.
2. In those appeals, the order dated 27/01/2017 passed by
the District Court in exercise of the power under Sub-Section 2 of
Section 72 of the Maharashtra Public Trust Act, 1950 is challenged.
The District Court has allowed the applicants therein/respondents
herein to lead additional evidence. There is further direction to the
trial authority i.e. Assistant Charity Commissioner to transmit the
record to Joint Charity Commissioner, and the Joint Charity
Commissioner/First Appellate Court was directed to dispose of the
proceedings pending before him on merits.
1sa184.17 with connected. 2/5
3. These orders were passed on the background of rejecting
the change reports and certain persons were held to be members and
as notice of Election was not given to them, learned Assistant Charity
Commissioner refused to put a seal of approval of those change
reports. When the matter reaches to Joint Charity Commissioner, he
set aside the findings recorded by the learned Assistant Charity
Commissioner and held that the concern persons were not the
Members of the Chimur Education Society.
4. When the matter reaches to the District Court, he has
passed the order as mentioned above.
5. My attention is brought to the judgment passed by this
Court [Nagpur Bench] in Writ Petition No. 808/2019 Smt. Mamta
w/o Vijay Vaidya and others V/s Smt. Kusumtai Baburao Zade and
others and other connected petitions on 11/09/2019 and also the
judgment passed by this Court [Aurangabad Bench] in Second Appeal
No.477/2012 Shaikh Abdul Razak Yaseen Patel and others V/s
Sayyad Murad Syed Irfan Ali (deceased), through his L.Rs Smt.
Sharifabai w/o Murad Sayed and others passed on 09/10/2019. On
the basis of the observations therein, it is submitted by the learned
Advocate Shri S.N. Bhattad that two contrary views are expressed and
as such reference is warranted. As against this, it is submitted by the
learned Advocate Shri Rohit Vaidya, that there is no need to refer the
matter as Full Bench of this Court in case of Prabhakar Sambhu
Chaudhary V/s Laxman Baban Mali and others reported in 2016 (3)
Mh.L.J. 202 has answered this issue. My attention is invited to
observations in para-54 of the said judgment.
6. Both the learned Advocates invited my attention to
1sa184.17 with connected. 3/5
relevant paragraphs of all the three judgments. I have perused these
judgments. It is true that in case of Smt Mamta w/o Vijay Vaidya and
others the issue which had arisen before this Court is ' about the
correctness of the orders passed on Change Reports submitted to the
learned Assistant Charity Commissioner'. Some of the reports were
rejected whereas some where accepted. The learned Joint Charity
Commissioner passed the orders and when the matter went to the
District Court the order of learned Joint Charity Commissioner was
set aside and the matter was remanded to Deputy Charity
Commissioner. The order of remand was passed by the District Court,
while dealing with the proceedings under Section 72 (2) of the
Maharashtra Pubic Trust Act,1950.
Whereas in case of Shaikh Abdul Razak Yaseen Patel the
learned Assistant Charity Commissioner passed the orders while
allowing the scheme. When they were challenged before the District
Court matter was remanded back for consideration to learned
Assistant Charity Commissioner.
7. So even though the background of both the litigations
involved in above referred judgment may be different the fact
remains and it is that the District Court has remanded the matter back
for fresh consideration.
8. As against this Full Bench of this Court while answering
the question referred has opined that --
'the scope of an appeal under Section 72 (4) of the
Maharashtra Public Trust Act,1950 is not subjected to
restrictions and limitations imposed under the provisions
of Section 100 of the Code of Civil Procedure, 1908 '.
1sa184.17 with connected. 4/5
While opining about the scope of that appeal it has been
observed that -
'the order can be reversed, modified or matter can be
remanded to the Lower Court for fresh decision'.
9. According to the learned Advocate Shri Rohit Vaidya even
though Full Bench has interpreted the provisions of Section 72(4) of
the said Act, the same analogy can be applicable and can be
interpreted that power of remand do exists when the District Court is
dealing with the proceedings under Section 72 (2) of the Maharashtra
Public Trust Act, 1950. This proposition is disputed by learned
Advocate Shri S.N. Bhattad and he invited my attention to the points
referred to Full Bench.
10. We may find those points of reference in para-9 of the
Full Bench judgment. On reading that, I can find that the scope of
Second Appeal under the provisions of Section 72(4) of the
Maharashtra Public Trust Act,1950 was involved. Even learned
Advocate Shri S.N. Bhattad, pointed out to me the observations made
in Shaikh Abdul Razak Yaseen Patel and others case [para-22]. This
Court has observed that -
'learned Full Bench was not called upon to embark upon
exercise of deciding the scope, parameters and ambit of
the jurisdiction of the District Court under Section 72 (2)
of the said Act.'
I agree to the submission made by learned Advocate Shri.
S.N. Bhattad to that effect.
1sa184.17 with connected. 5/5
11. It is very well true that in Smt.Mamta w/o Vijay Vaidya's
case this Court observed that power of remand is certainly available
to the District Court while exercising power under Section 72 (2) of
the said Act whereas contrary view has been taken by this Court while
delivering the judgment in case of Shaikh Abdul Razak Yaseen Patel
and others. Even it is submitted that there was no occasion to bring
the observations of this Court in Smt. Mamta w/o Vijay Vaidya and
others case to the notice of this Court in Sahikh Abdul Razak Yaseen
Patel's case and probably it may be due to short span in between
these two judgments.
12. In view of above, I think that the matter needs to be
referred to a Larger Bench and hence learned Registrar (Judicial) can
be asked to place the matter before Hon'ble Chief Justice for
constituting a Larger Bench. For that purpose, I frame the following
point of reference :
a] Whether the District Court while exercising the
power under Section 72 (2) of Maharashtra Public
Trust Act has power to remand the proceedings ?
13. Hence, learned Registrar (Judicial) is requested to place
the matter before Hon'ble Chief Justice for further consideration.
CIVIL APPLICATION (CAS) NOS. 312, 372 AND 313/2017
The ad-interim relief granted on 21/04/2017 in terms of
prayer clause (2) of the application is extended until further orders.
JUDGE
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