Bombay High Court
Subhash Rambhau Kosalge vs Shri. Rajabhau S/O Mahadeorao ... on 11 January, 2021
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.7723 OF 2018
Subhash Rambhau Kosalge,
Aged about 69 years, Occ. Business,
R/o Dnyaneshwar Nagar, Pusad,
Tq. Pusad, District Yavatmal.
.....PETITIONER
...V E R S U S...
1) Shri Rajabhau s/o Mahadeorao
Choudhary, aged about 70 years,
Occ: Agriculturist, R/o Giroli,
Tq. Manora, District Washim.
2) Shri Pandurang Bhausaheb Pawade,
Aged about 65 years, Occ: Agriculturist,
R/o Sule Nagar, At Post Nanded,
Tq. & District Nanded.
3) Shri Pradeep Ramrao Deshmukh,
Aged about 55 years, Occ: Agriculturist,
R/o Khadaka, at post Leva, Tq. Mahagaon,
District Yavatmal.
4) Shri Vasant Mankoba Bhusewar,
Aged about 52 years, Occ: Agriculturist,
R/o Dhanoda, Tq. Mahagaon,
District Yavatmal.
5) Shri Laxman Mankaji Kashinde,
Aged about 52 years, Occ: Agriculturist,
R/o Vitawa, Tq. Pusad, District Yavatmal.
6) Shri Jaisingh Tukaram Deshmukh,
Aged about 52 years, Occ: Agriculturist,
R/o Khadka, At Post Leva, Tq. Mahagaon,
District Yavatmal.
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7) Shri Balasaheb Kisanrao Deshmukh,
Aged about 55 years, Occ: Agriculturist,
R/o Jam Bazar, Tq. Pusad, District Yavatmal.
8) Shri Gajanan Vasantrao Deshmukh,
Aged about 47 years, Occ: Agriculturist,
R/o Dhawanda, Tq. Manora, District Washim.
9) The learned Joint Charity Commissioner,
Yavatmal.
...RESPONDENTS
WITH
WRIT PETITION (Stamp) NO. 8032 OF 2020
1) Rajabhau s/o Mahadeorao
Choudhary, aged about 70 years,
Occ: Agril, R/o Dnyaneshwar Nagar,
Pusad, Tq. Pusad, District Yavatmal.
2) Pandurang Bhausaheb Pawade,
Aged about 55 years, Occ: Agril,
R/o Sule Nagar, At Post Nanded,
Tq. Nanded, District Nanded.
3) Pradeep Ramrao Deshmukh,
Aged about 70 years, Occ: Agril,
R/o Khadaka, At post Leva,
Tq. Mahagaon, District Yavatmal.
4) Vasanta Vyankoba Bhusewar,
Aged about 52 years, Occ: Agril,
R/o Dhanoda, Tq. Mahagaon,
District Yavatmal.
5) Laxman Mankaji Kashinde,
Aged about 52 years, Occ: Agril,
R/o Vitawa, At post, Tq. Mahagaon,
District Yavatmal.
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6) Jaisingh Tukaram Deshmukh,
Aged about 52 years, Occ: Agril,
R/o Khadka, At Post Lava,
Tq. Mahagaon, District Yavatmal.
7) Balasaheb Kisanrao Deshmukh,
Aged about 55 years, Occ: Agril,
R/o Jam Bazar, Tq. Pusad, District Yavatmal.
8) Gajanan Vasantrao Deshmukh,
Aged about 47 years, Occ: Agril,
R/o Dhawande, Tq. Manora, District Washim
.....PETITIONERS
...V E R S U S...
1) Subhash Rambhau Kosalge,
Aged about 69 years, Occ. Business,
R/o Dnyaneshwar Nagar, Pusad,
Tq. Pusad, District Yavatmal.
2) Assistant Charity Commissioner,
Yavatmal, Tq. and Dist. Yavatmal.
...RESPONDENTS
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W.P. NO.7723/2018
Smt. R.D. Raskar, Advocate for petitioner.
Shri Anil Kadu, Advocate for respondent Nos.1 to 8.
Shri K.L. Dharmadhikari, A.G.P. for respondent No.9.
W.P.(st) NO. 8032 /2020
Shri Anil Kadu, Advocate for petitioners.
Shri Anup Gilda, Advocate for respondent Nos. 1 and 5.
Shri K.L. Dharmadhikari, A.G.P for respondent No.2.
-------------------------------------------------------------------------------------------
CORAM:- V. M. DESHPANDE, J.
DATED :- JANUARY 11, 2021.
ORAL JUDGMENT
Rule. Rule made returnable forthwith in these two writ
petitions.
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(2) These two writ petitions can be disposed of by this
common order.
(3) Smt. R.D. Raskar, learned counsel is appearing for the
petitioner in Writ Petition No.7723 of 2018 and Shri Anil Kadu,
learned counsel is appearing for the respondent Nos.1 to 8 and
Shri K.L. Dharmadhikari, learned A.G.P is appearing for the
respondent No.9 - Joint Charity Commissioner, Yavatmal.
(4) In another Writ Petition (stamp) No.8032 of 2020, Shri
Anil Kadu, learned counsel is appearing for the petitioners and
Shri Anup Gilda, learned counsel is appearing for the respondent
No.1 and Shri K.L. Dharmadhikari, learned A.G.P. is appearing for
the respondent No.2- Assistant Charity Commissioner, Yavatmal.
(5) The Writ Petition No.7723 of 2018 takes exception to
the order passed by the Assistant Charity Commissioner, Yavatmal
in Change Report No.100 of 2014 thereby he allowed the
application Exhibit-10 filed by the respondent Nos.1 to 8,
togetherwith the judgment passed by the Joint Charity
Commissioner, Amravati Region, Amravati dated 15.09.2017,
thereby the revision filed by the petitioner against the order
passed by the Joint Charity Commissioner is dismissed.
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(6) In Writ Petition (stamp) No.8032 of 2020, the
petitioner has challenged the order passed by the Assistant Charity
Commissioner, Yavatmal below Exhibit 27 in Change Report
Inquiry No.100 of 2014 seeking direction to produce original cash
book, original ledger book, etc.
(7) Change report proceedings were registered on the
record of the Assistant Charity Commissioner in view of change
report submitted by the reporting trustee for recording the change
that occurred in the meeting dated 23.03.2014. The respondents
in Writ Petition No.7723 of 2018 filed an application for
intervention in the said proceedings.
(8) Sub-section 10 of Section 2 of the Maharashtra Public
Trusts Act (for short "said Act") deals with the person having
interest. Similarly, Section 73A of the said Act gives power to the
inquiry officer to join persons as party to the proceeding. Section
73A reads as under:
"73A. Power of Inquiry Officer to join persons as party
to proceedings. - In any proceedings under this Act,
any person having interest in the public trust may be
joined as a party to such proceedings on an application
made by such person or such terms and conditions as
the officer holding the inquiry may order."
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(9) Plain reading of Section 73A of the said Act therefore,
postulates that a person cannot be joined as a party in the
proceedings unless such person is having interest in the public
trust. Therefore, it is expected on the part of the Assistant Charity
Commissioner to record its finding, if an application is moved
under Section 73A of the said Act that such person is having
interest in the trust. The order dated 19.11.2016 passed by the
Assistant Charity Commissioner, Yavatmal does not reflect that the
Assistant Charity Commissioner has recorded the finding that
respondent Nos.1 to 8 are having interest, which in my view, is
mandatory on the part of Assistant Charity Commissioner to
record the same. Therefore, I am of the view, that the matter
needs to be remanded back to the Assistant Charity Commissioner,
Yavatmal for deciding the application filed on behalf of the
respondent Nos.1 to 8 afresh after giving opportunity of hearing to
the petitioner as well as the respondent No.1 to 8. It shall be open
for the Assistant Charity Commissioner to conduct a proper
inquiry before reaching to the conclusion.
(10) Insofar as, order dated 14.01.2020 below Exhibit-27,
which is challenged in Writ Petition (stamp) No.8032 of 2020 is
concerned, since the petitioner is having interest or not will be
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decided by the Assistant Charity Commissioner after remand. The
petitioner is again permitted to file an application afresh for the
prayer which was made in Exhibit-27 by giving further details, if
the petitioner chose to supplement.
(11) In that view of the matter, I pass the following order.
i) Order dated 19.11.2016 passed by the Assistant
Charity Commissioner below Exhibit -10 in Change
Report No.100 of 2014 togetherwith the judgment dated
15.09.2017 passed by Joint Charity Commissioner,
Amravati Region, Amravati in Revision No.43 of 2016 is
hereby set aside.
ii) Similarly, the order below Exhibit-27 in Change
Report Inquiry No.100 of 2014 is also quashed and set
aside.
iii) The Assistant Charity Commissioner, Yavatmal is
hereby directed to decide the afresh the application filed
for intervention by giving proper opportunity of hearing
to the parties.
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iv) The applicants who moved application (Exhibit-27)
are also permitted to file fresh application by
supplementing further pleadings to the application
(Exhibit-27).
v) The exercise should be undertaken by the
Assistant Charity Commissioner within a period of three
months from the receipt of this order.
(12) Rule is made absolute in above terms. No order as to
costs.
JUDGE
Wagh
