Bhumiputra Shikshan Prasarak ... vs State Of Maharashtra, Through ...
2021 Latest Caselaw 14902 Bom

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                          NAGPUR BENCH : NAGPUR


                     WRIT PETITION NO.1644 OF 2021



1)   Bhumiputra Shikshan Prasarak Sanstha,
     Mr. Sanjay Burghate, Ambarpan Colony,
     near New Congressnagar, Amravati,
     through its President Advocate
     Madhukarrao s/o Suryabhanji Lokhande,
     aged about 76 years, r/o New Ganesh
     Colony, near Hindu Cremation ground,
     Amravati.

2)   Ashok s/o Vishnugir Giri,
     aged about 39 years, occupation :
     service, r/o Sainagar, Trimurti
     Colony, Daryapur, Taluq Daryapur,
     District Amravati.                              ...     Petitioners

                - Versus -

1)   The State of Maharashtra, through
     the Secretary, Department of Education,
     Mantralaya, Mumbai - 32.

2)   The Director of Education,
     Maharashtra State, Pune.

3)   The Deputy Director of Education,
     Amravati Division, Amravati.

4)   Bhumiputra Shikshan Prasarak
     Sanstha, 33, Congress Nagar,
     Amravati, through Mr. Madhukarrao
     s/o Sukhdeorao Abhyankar,
     r/o Bhumiputra Colony, near
     Congress Nagar, Amravati, Taluq and
     District Amravati.




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5)   Mr. Jay Madhukar Abhyankar,
     aged about 44 years, occupation :
     service, r/o Bhumiputra Colony,
     near Congress Nagar, Amravati,
     Taluq and District Amravati.

6)   Ku. Sangita Kashiram Punde,
     aged about 45 years, occupation :
     service, c/o Mr. Mohan Paturde,
     Sai Nagar, Daryapur, Taluq
     Daryapur, District Amravati.

7)   The Superintendent of the Office
     of Charity Commissioner,
     Amravati, MHADA Bhavan,
     2nd floor, Tope Nagar, near
     Maltekdi Road, Taluq and District
     Amravati.

8)   The Assistant Charity Commissioner-3,
     Amravati, MHADA Bhavan, 2nd floor,
     Tope Nagar, near Maltekdi Road,
     Taluq and District Amravati.

9)   The Deputy Education Officer
     (Secondary), Zilla Parishad,
     Amravati.                                      ...   Respondents
                -----------------
Shri M.G. Bhangde, Senior Advocate, assisted by Adv. S.S. Sarda
for petitioners.

Shri N.R. Patil, Assistant Government Pleader for respondent nos.1,
2, 3, 7, 8 and 9.

Shri S.P. Dharmadhikari, Senior Advocate, assisted by Adv. S.M.
Vaishnav, for respondent nos.4 to 6.
            ----------------

                                CORAM : SUNIL B. SHUKRE AND
                                        ANIL S. KILOR, JJ.

DATED : OCTOBER 12, 2021

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ORAL JUDGMENT (PER SUNIL B. SHUKRE, J.) :

Heard Shri Bhangde, learned Senior Counsel for the

petitioners, Shri Patil, learned Assistant Government Pleader for the

respondent nos.1, 2, 3, 7, 8 and 9 and Shri Dharmadhikari, learned

Senior Counsel for the respondent nos.4 to 6.

2) Rule, returnable forthwith. Heard finally by consent of the

learned Counsel for the parties.

3) There is an internecine dispute between two factions of the

Managing Body of the petitioner Trust. One faction is led by

Adv. Madhukar Lokhande and another is led by respondent no.4

Madhukar Abhyankar and both these factions have filed change

reports under Section 22 of the Maharashtra Public Trusts Act, 1950

before the Assistant Charity Commissioner. These reports bearing

Nos.80/2019 and 124/2019 are still pending decision of the

Assistant Charity Commissioner. It appears to us that because of

pendency of these change reports and no decision having been taken

by the learned Assistant Charity Commissioner as regards these

change reports, the complications arising from dispute between

these two factions are increasing day by day. Today the position is

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that even the day-to-day affairs of the Schools run by the Trust have

been affected. At one point of time, the respondent no.3 Deputy

Director of Education had given limited administrative powers to

the petitioner no.2 for smooth running of the affairs of the School

and that too, after giving due hearing to both the factions and this

order was passed on 16/3/2019 and at another point of time, the

same Deputy Director of Education, i.e. respondent no.3 passed a

contrary order dated 10/3/2021 whereby he withdrew the

administrative powers given to the petitioner no.2 and transferred

these powers to the respondent no.6.

4) According to Shri Bhangde, learned Senior Counsel for the

petitioners, the impugned order dated 10/3/2021 could not have

been passed by the respondent no.3 without giving due opportunity

of hearing to both the factions, especially when the earlier order was

passed by him after giving hearing to both the factions and that it

could not have been passed without considering the reasons stated

in the earlier order dated 16/3/2019. He also submits that since the

faction led by the respondent no.4 was not the authorized Body, the

petitioner no.2 could not have been proceeded against

departmentally and that no suspension order could have been issued

by it.

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5)     Shri      Dharmadhikari,    learned   Senior   Counsel        for    the

respondent nos.4 to 6, countering the above submissions, submits

that the respondent no.4 was well within his authority to have

initiated departmental enquiry proceedings and also to have

suspended the petitioner no.2 as the last recorded President in

Schedule I register was Shri Madhukar Abhyankar (respondent

no.4) and not the petitioner no.1. He also submits that the order

dated 10/3/2021 passed by the respondent no.3 is legal for the

reason that during pendency of the proposal of respondent no.4

regarding giving of administrative powers to the candidate

suggested by the respondent no.4, the petitioner no.2 was

suspended and, therefore, there was no senior-most Teacher

available for being appointed as a provisional Principal and as such,

no fault could be found with the order dated 10/3/2021 passed by

the respondent no.3.

6) Whatever may be the rival submissions, the fact remains,

which we have noted earlier, that the dispute between two factions

has become more and more boisterous, probably for the reason that

the change reports have not been decided by the Assistant Charity

Commissioner and we are of the considered view that if an

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appropriate decision is taken by the learned Assistant Charity

Commissioner in the matter, most of the problems will be sorted

out.

7) As regards the order dated 10/3/2021 passed by the

respondent no.3 Deputy Director of Education, we must note that

this order does not give any such reason, which relates to the

necessity arising from suspension of the petitioner no.2. It also does

not consider the reasons given in the earlier order dated 16/3/2019

whereby limited administrative powers were conferred upon the

petitioner no.2. This order appears to have been passed without

giving any opportunity of hearing at least to the petitioner no.1 when

at the time of passing of the earlier order, the rival of the petitioner

no.1, i.e. respondent no.4 was given an opportunity of hearing.

Therefore, on all these grounds, in our opinion, the order dated

10/3/2021 passed by the respondent no.3 must go.

8) In respect of the communication dated 13/3/2020 issued by

the respondent no.7, we find that even this communication cannot

be upheld by us when the Assistant Charity Commissioner, as seen

from his reply, has admitted that the order, which was passed on the

inspection report of the Inspector, was confined only to removing of

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the display board of the Executive Committee from the College and

that it did not say anything about the respondent no.4 being retained

as President of the Trust and, therefore, this communication in the

nature of an order would also have to be quashed and set aside.

9) In view of above, we find that the aforesaid impugned orders

would have to be quashed and set aside and the issues limited to

those orders would have to be relegated to the lower Authorities for

their appropriate decisions in respect of the same. Since the dispute

is being referred back to the lower Authorities, it would also be

necessary that the departmental enquiry proceedings as well as

suspension order of the petitioner no.2 are stayed for the limited

period of time.

10) Accordingly, the petition is partly allowed. The impugned

communication in the nature of order dated 13/3/2020 issued by

the respondent no.7 and the impugned order dated 10/3/2021

passed by the respondent no.3 are quashed and set aside. So far as

the issue of conferment of limited administrative powers is

concerned, the matter is remanded back to the respondent no.3 for

his appropriate decision in the matter, which he shall take within

two months from the date of appearance of parties before him. The

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parties shall appear before him on 25th October 2021. It is clarified

that the respondent no.3 shall not be influenced by the observations

made hereinabove while deciding the issue, which is now remanded

back to him and shall decide the issue on its own merits.

The learned Assistant Charity Commissioner is directed to

decide the pending change reports in accordance with law after

giving due opportunity of hearing to the parties within a period of

two months from the date of appearance of the parties before him.

The parties shall appear before him on 26th October 2021.

Departmental enquiry proceedings as well as suspension

order of the petitioner no.2 are hereby stayed till change reports are

decided.

Rule accordingly. No costs.

           JUDGE                                                JUDGE




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