Bombay High Court
Shree Datta Devasthan Trust ... vs Milind Govind Kshirsagar And ... on 7 July, 2022
Bench: Mangesh S. Patil
1 WP / 5594 / 2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5594 OF 2022
Shree Datta Devasthan Trust
A registered trust registered under
provisions of Maharashtra Public
Trust Act, 1960 having its registration
No. A-711 having its office at
Shree Dattakshetra, Vedantnagar,
Manmad Road, Ahmednagar,
Through its Trustee
1] Mr. Dinesh Patwardhan
Age : 55 years, Occu : Service,
R/o. C-501, Pate Sanstriti
Tulshibagwale Colony,
Sahakarnagar No. 2, Pune
2] Mr. Devraj Prabhkar Kashikar,
Age : 66 years, Occu : Retired
R/o : Prabhuniwas Society,
S. No. 2/12, Dhankawadi,
Pune 411 043
3] Mr. Tushar Karnik
Age : 62 years, Occu. : Retired
R/o; A, 401, Swapna Samrat Housing
Society, Karve Nagar, Brandawane,
Pune 411 004
4] Mr. Pradip Joshi
Age : 36 years, Occu. : Service
R/o : Pawan, C 205, DSK Vishwa
Sinhagad Road, Dhayari, Pune 411 041 .. Petitioners
Versus
1] Shri Milind Govind Kshirsagar
Age : 56 years, Occu : Service
R/o : "Sanman" Apartment, Ground Floor,
Gaikwad Colony, Savedi Road,
Ahmednagar
2] Shri Abhay Mohanrao Brahme
Age : 49 years, Occu. : Service,
R/o : Flat No. 2, Gharanda Apartment,
S. No. 78/4-5 Plot No. 63 Davi Bhusari Colony,
Near Shrungeri Math, Paud Road,
Pune 411 038
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2 WP / 5594 / 2022
3] Shri. Balkrishna Damodhar Amrutkar,
Age : 67 years, Occu. : Business,
R/o : 22, Vivek Bungalow, Ashok Nagar,
Dhule
4] Assistant Charity Commissioner,
Ahmednagar, Tal & Dist. Ahmednagar
5] Mr. Sanjay Kshirsagar,
Age : 56 years, Occu : Profession
R/o : Vishnu Kamal Complex,
Narayan Peth, Pune 411 030 .. Respondents
...
Mr. S.P. Brahme, Advocate for petitioners
Mr. R.N. Dhorde, Sr. Advocate i/b. Lex Aquila for respondent no.1
Mr. V.D. Salunke, Advocate for respondents no. 2 and 3
Mr. P.G. Borade, AGP for respondent no. 4
Mr. S.D. Joshi, Advocate for respondent no. 5
...
WITH
WRIT PETITION NO. 6280 OF 2022
1] Shri Purushottam Bhagwant Kulkarani
Age - 66 years, Occupation - retired
Residing at Gurukrupa, Plot No. 55,
Sainath Nagar, Aurangabad 431 010
2] Shri Rajan Vasant Joshi
Age - 63 years, Occupation - retired,
Residing at 302, Namrata Heights,
Aadharwadi, Kalyan (West) 421 301
3] Shri Mohan Padmanath Shukla
Age-53 years, Occupation - service
R/at. 122 Sambhaji Nagar, Pandurang Wadi,
Jalgaon - 425 003
Being the trustees of Shri Datta Deosthan Trust,
Ahmednagar .. Petitioners
Versus
1] Shri Milind Govind Kshirsagar,
Age : Adult, Occu. Service,
R/at -"Sanman" Apartment, Ground Floor,
Gaikwad Colony, Savedi Road,
Ahmednagar
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3 WP / 5594 / 2022
2] Shri Abhay Mohanrao Brahme
Age : 47 years, Occ. Service,
R/at - Flat No. 2, Gharonda Apartment,
S. No. 78/4-5, Plot No. 63, Davi Bhusari
Colony, Near Shrungeri Math, Paud Road,
Pune - 411 038
3] Shri Balkrishna Damodhar Amrutkar
Age - 67 years, Occupation - Business,
R/at 22, Vivek Bunglow, Ashok Nagar,
Dhule
4] Ld. Joint Charity Commissioner, Pune
5] Mr. Dinesh Patwardhan
C-501, Pate Sanskriti,
Tulshibagwale Colony,
Sahakarnagar No. 2, Pune
6] Mr. Devraj Kashikar
Prabhuniwas Society, S. No. 2/12,
Dhankawadi, Pune 411 043
7] Mr. Tushar Karnik
Society, Karve Nagar,
Erandawane, Pune 411 004
8] Mr. Pradip Joshi
Pawan, C 205, DSK Vishwa,
Sinhagad Road, Dhayari,
Pune 411 041
9] Shri Sanjay S. Kshirsagar
1, Vishnu Kamal Complex,
Appa Balawant Chowk,
Narayan Peth, Pune 411 030 .. Respondents
[Resp. No. 1 to 3 - Orig.
Opponents and Nos. 5 to 9
Ori. Appellants]
...
Mr. P.R. Katneshwarkar, Advocate for petitioners
Mr. R.N. Dhorde, Sr. Advocate i/b. Lex Aquila for respondent no.1
Mr. V.D. Salunke, Advocate for respondents no. 2 and 3
Mr. P.G. Borade, AGP for respondent no. 4
Mr. S.P. Brahme, Advocate for respondent no. 5
Mr. S.D. Joshi, Advocate for respondents no. 6 to 9
...
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4 WP / 5594 / 2022
AND
WRIT PETITION NO. 6005 OF 2022
Shri Sanjay Kshirsagar
Age : 56 years, Occu. : Profession,
Office at Vishnu Kamal Complex,
Narayan Peth, Pune 411 030 .. Petitioner
Versus
1] Shri Milind Govind Kshirsagar
Age : Adult, Occu. : Service
R/at - "Sanman" Apartment, Ground Floor,
Gaikwad Colony, Savedi Raod,
Ahmednagar
2] Shri. Abhay Mohanrao Brahme
Age : 47 years, Occu. Service,
R/at - Flat No. 2, Gharanda Apartment,
S. No. 78/4-5, Plot No. 63, Davi Bhusari
Colony, Near Shrungeri Math, Paud Road,
Pune - 411 038
3] Shri. Balkrishna Damodhar Amrutkar
Age - 67 years, Occupation - Business,
R/at 22, Vivek Bunglow, Ashok Nagar,
Dhule
4] Mr. Dinesh Patwardhan
C-501, Pate Sanskriti,
Tulshibagwale Colony,
Sahakarnagar No. 2, Pune
5] Mr. Devraj Kashikar
Prabhuniwas Society, S. No. 2/12,
Dhankawadi, Pune 411 043
6] Mr. Tushar Karnik
Society, Karve Nagar,
Erandawane, Pune 411 004
7] Mr. Pradip Joshi
Pawan, C 205, DSK Vishwa,
Sinhagad Road, Dhayari,
Pune 411 041
8] Joint Charity Commissioner,
Pune Region, Pune .. Respondents
[Resp. Nos. 1 to 3 orig.
Opponent nos. 1 to 3 and
Resp. Nos. 4 to 7 - orig.
Appellant Nos. 2 to 5]
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5 WP / 5594 / 2022
...
Mr. Sujeet D. Joshi, Advocate for petitioner
Mr. R.N. Dhorde, Sr. Advocate i/b. Lex Aquila for respondent no.1
Mr. V.D. Salunke, Advocate for respondents no. 2 and 3
Mr. S.P. Brahme, Advocate for respondents no. 5 to 7
Mr. P.G. Borade, AGP for respondent no. 8
...
WITH
CIVIL APPLICATION NO. 9039 OF 2022 IN WP/6280/2022;
CIVIL APPLICATION NO. 9049 OF 2022 IN WP/5594/2022;
CIVIL APPLICATION NO. 9047 OF 2022 IN WP/6005/2022;
...
Mr. Aniruddha A. Nimbalkar, Advocate for the applicants in all CAs.
...
CORAM : MANGESH S. PATIL, J.
RESERVED ON : 30 JUNE 2022
PRONOUNCED ON : 07 JULY 2022
JUDGMENT :
Heard. Rule in all the writ petitions. Rule is made
returnable forthwith. The learned senior advocate Mr. R.N. Dhorde,
learned advocates Mr. V.D. Salunke, Mr. S.D. Joshi, Mr S.P. Brahme
and learned AGP waives service for respective respondents.
2. At the joint request of the parties, all these petitions are
taken up for final hearing at the stage of admission.
3. The dispute is pertaining to the management of religious
public trust, by name, "Shri Datta Devasthan Trust" established with
the object of imparting Vedic education, publishing books and
administering temples. It also runs a Goshala. It was set up by one
Shri Ramkrishna Kshirsagar Maharaj.
6 WP / 5594 / 2022
4. Because of the disputes, several change reports have
been filed under section 22 of the Maharashtra Public Trusts Act
(hereinafter "The Trusts Act").
5. Inter alia, change report no. 956 of 2006, 634 of 2007,
1022 of 2008 and 1281 of 2011 were filed before the learned Assistant
Charity Commissioner, Ahmednagar. Change report no. 722 of 2005
was also filed. Apart from several change reports, even there were
proceedings under section 41A, 41E of the Trusts Act.
6. It appears that since the parties were approaching this
Court, the matters pending at various stages, before the learned
Assistant Charity Commissioner and the learned Joint Charity
Commissioner were expedited by the orders of this Court. Perhaps in
view of such directions of this Court, the learned Assistant Charity
Commissioner decided the afore-mentioned change reports no. 956 of
2006, 634 of 2007, 1022 of 2008 and 1281 of 2011 by four separate
orders dated 01-12-2020 which were same in verbatim. The orders
read as under :-
" This is a change report filed by Prakash Maheshwar Pradhan in
respect of "Shri Datta Deosthan Trust, Ahmednagar" bearing P.T.R.
No.A-711 (Ahmednagar).
2. The reporting trustee has filed this change report for adding the
name of Shri Sanjay Kshirsagar in board of trustees. In support of his
contention he has filed notice of meeting dated 27.08.2006, minutes of
meeting dated 03.09.2006 and filed an affidavit in lieu of evidence.
3. Objection has been raised by the Murlidhar Eknath
Rushipathak and one recorded trustee Shri. Milind Govind Kshirsagar.
7 WP / 5594 / 2022
4. It is pertinent to note here that all these change reports are time
bounded matter. Previous change report No.722/2005 is decided by
this authority on 18.06.2020, which was rejected by this authority.
5. It is also pertinent to note that change report regarding
appointment of new members in board of trustees bearing change
report No.722/2005 is also rejected by this authority on 18.06.2020.
As consider order of Hon'ble High Court regarding time bound number,
this number also included in that order. Moreover, if these are
unauthorized group of persons or outsiders have effected the change
and appointed new trustees, such persons so appointed cannot be
said to be trustees at all and such an appointment or a change cannot
be said to be an appointment or a change at all. The fate of all these
further change reports are depend on change report No.722/2005.
Therefore, there is no fruit to give time and take evidence in this
change report No.956 of 2006. Hence, in view of order passed in
change report No.722/2005 I passed following order.
Order.
i) Change report is rejected.
ii) No order as to costs. "
7. The reporting trustees have challenged the orders in their
respective change reports by four separate Appeals no. 3 of 2021, 4 of
2021, 1 of 2021 and 2 of 2021 under section 70 of the Trusts Act
respectively. It was alleged by the appellants that the learned
Assistant Charity Commissioner without giving any opportunity of
being heard mechanically decided the change reports even without
indulging in examining their legality or otherwise on merits.
8. In Appeal no. 1 of 2021, the appellants submitted
application (Exhibit - 3) seeking stay to the operation of the order
passed by the learned Assistant Charity Commissioner in change
report no. 1022 of 2008. By moving application (Exhibit - 48), they
even prayed for an ad interim relief. By common order on both these
8 WP / 5594 / 2022
applications which is under challenge in these writ petitions, the
learned Joint Charity Commissioner rejected the applications and
further appointed the Inspector of the Public Trust Registration Office
at Ahmednagar as the administrator to protect the interests of the trust
and to manage its affairs. He also issued few other consequential
directions to the Administrator. It is this order which is under challenge
in these three writ petitions by three different group of persons of which
writ petition no. 5594 of 2022 is filed by the trust through four persons
claiming to be the trustees, which is the lead petition. Even a person
stated to be interested has filed an application for intervention.
9. The learned advocates for the petitioners have been
unanimous in submitting that a bare look at the order passed by the
learned Assistant Charity Commissioner shows that apart from the fact
that the orders do not disclose about any opportunity of being heard
having been extended to the parties, the learned Assistant Charity
Commissioner had not even taken pains to decide the change reports
on their merits. Only by observing that earlier change report no. 722 of
2005 was rejected, she has rejected the change reports in limine. The
orders are patently illegal. They would submit that the learned Joint
Charity Commissioner has clearly overlooked this important
circumstance going to the root of the legality of the orders passed by
the learned Assistant Charity Commissioner. Rather she has
completely misdirected itself by subscribing to the ill founded
reasoning given by the learned Assistant Charity Commissioner that
9 WP / 5594 / 2022
since the change report no. 722 of 2005 which was made time bound
by the High Court was decided by a detailed order, even these change
reports were liable to be rejected.
10. The learned advocates would further point out that
irrespective of the fact that there has been long standing disputes
between various persons having interest in the trust who are parties in
these petitions, the affairs of the trust have been duly managed by the
trustees from the writ petition no. 5594 of 2022. They would submit
that immediately after rejection of the change reports by the afore-
mentioned orders of the learned Assistant Charity Commissioner, the
respondent - Milind Kshirsagar who happens to be the nephew of the
founder of the trust has created obstacles in the management of the
trust. He has been raising objections with the bankers of the trust who
were till then allowing these petitioners to operate the accounts of the
trust but refused them to operate the accounts after such objection.
They would submit that in view of such peculiar state-of-affairs, it has
become difficult for them to manage the affairs of the trust and the
petitioners in writ petition no. 5594 of 2022 even have specifically
mentioned that they have been required to open the coffers of the trust
to manage the affairs.
11. They would submit that though the change reports have
been rejected by the learned Assistant Charity Commissioner, the
matter was pending before the learned Joint Charity Commissioner in
10 WP / 5594 / 2022
the form of statutory appeal and the learned Joint Charity
Commissioner should have accepted the request of the petitioners to
stay operation of the orders of the learned Assistant Charity
Commissioner under challenge. That would have allowed the status
quo to continue. The learned Joint Charity Commissioner has ignored
all such state-of-affairs.
12. The learned advocates for the petitioners would then
submit that the learned Joint Charity Commissioner was not merely
contented in rejecting the applications for stay / interim relief but has
demonstrated her unprecedented enthusiasm in further appointing an
administrator which was not the purport of the limited enquiry while
deciding the applications for interim relief (Exhibit - 3 and Exhibit - 48).
They would submit that though the learned Joint Charity
Commissioner does have a power in a fit case to function
administratively and to consider the welfare of the public trust, the
manner in which the directions for appointment of an administrator
have been given were completely beyond the jurisdiction since it was
merely an appeal under section 70 of the Trusts Act arising from the
rejections of the change report that was under challenge. If the
circumstances, according to the learned Joint Charity Commissioner
were indicative of the need for appointment of an administrator, resort
could have been had to the requisite provisions contained in the Trusts
Act. Even the petitioners were taken by surprise since there was no
notice or indication to them that the learned Joint Charity
11 WP / 5594 / 2022
Commissioner was intending to pass an order appointing an
administrator. Therefore, even the provisions of natural justice were
not followed while directing appointment of an administrator. The order
is patently illegal. It be quashed and set aside and the applications for
interim relief (Exhibit - 3 and Exhibit - 48) may be allowed. They would
submit that the hearing of the appeals before the learned Joint Charity
Commissioner may also be expedited.
13. The learned Senior Advocate Mr. Dhorde submitted that
there is no error or illegality committed by the learned Assistant Charity
Commissioner in rejecting the change reports since their fate was
dependent on the earlier change report no. 722 of 2005 which was
already rejected by a detailed order and the order was under challenge
in another appeal before the learned Joint Charity Commissioner. He
would, therefore, submit that in the peculiar facts and circumstances,
since all these change reports were for appointment of new trustees,
the fate of every such subsequent application was dependent on the
outcome of the earlier change report.
14. Mr. Dhorde would further submit that in spite of the fact
that more than 30 change reports have been pending at various
stages as mentioned by the learned Joint Charity Commissioner in the
order under challenge, the petitioners somehow have been clinging on
and have been illegally managing the affairs of the trust. The settler of
the trust had duly appointed his nephew - Milind Kshirsagar as a
12 WP / 5594 / 2022
permanent trustee but the petitioners are not allowing him to take part
in the administration of the trust. The petitioners have been
deliberately prolonging the matters and continuing to manage the
affairs of the trust arbitrarily.
15. Mr. Dhorde would submit that the petitioners themselves
had mentioned before the learned Joint Charity Commissioner in their
application for interim relief that the affairs of the trust were in
doldrums. When the petitioners themselves were coming with such a
stand, no fault can be found in the order of the learned Joint Charity
Commissioner in expressing need for appointment of the administrator
for the better management of the trust. The learned Joint Charity
Commissioner has ample powers under section 41A, 41E etc. of the
Trusts Act to pass appropriate orders for managing the affairs of the
trust. Therefore, apart from the fact that there was no illegality in
refusing to stay the operation of the orders passed by the learned Joint
Charity Commissioner, the order directing appointment of an
administrator is clearly justified and there is no error in exercising the
jurisdiction by the learned Joint Charity Commissioner.
16. The learned advocates for the rest of the respondents
adopted the arguments of Mr. Dhorde.
17. The learned advocate for the applicant who has preferred
the application for intervention would submit that the petitioners are
13 WP / 5594 / 2022
guilty of mismanagement and it was appropriate for the learned Joint
Charity Commissioner to appoint an administrator.
18. I have carefully gone through the papers and have
considered the rival submissions.
19. There is no dispute about the fact that more than 30
change reports are still to reach finality. The parties are embroiled in a
bitter fight for years together. It is not an unusual for a public trust.
For, the persons claiming to be interested in public charities are often
have personal agenda and indulge in self aggrandizement. If really a
person is interested in working for the betterment of the society, why
should he insist that he should be allowed to do the charities through a
trust which is already set up and established. It is common experience
that the persons having interest in the trust are hail-bent in having the
administration of the trust in their hands. Even the egos are involved
which again should not have a place if a person really intends to take
part in the upliftment of the society.
20. This is yet another example which substantiates the above
observations. For whatever reason, the parties to these petitions have
been at loggerheads and intending to keep the reigns of the trust in
their hands. They are not allowing the change reports to reach finality.
More than 30 change reports are still to reach finality. Even this Court
had to make the enquiries time bound.
14 WP / 5594 / 2022
21. The fact remains that though the four change reports have
been rejected by the learned Assistant Charity Commissioner and
even if the petitioners in writ petition no. 5594 of 2022 in their
applications (Exhibit - 3 and Exhibit - 48) had averred that the affairs of
the trust were in doldrums, it is a matter of record that they have been
managing the affairs of the trust and even operating the bank
accounts. This is clear from the correspondence made by respondent
- Milind Kshirsagar and Amrutkar to the bankers of the trust soon after
the change reports were rejected by the learned Assistant Charity
Commissioner. Therefore, one cannot but draw an inference that the
petitioners in writ petition no. 5594 of 2022 are at the helm of the
affairs of the trust in question.
22. If such is the state-of-affairs, when the change reports
have been rejected by the learned Assistant Charity Commissioner on
the sole ground that the change report no. 722 of 2005 was also
rejected, and that the petitioners had challenged the legality of the
orders passed by the learned Assistant Charity Commissioner in
statutory appeal under section 70 of the Trusts Act, it clearly would
have been in the fitness of the things to allow the status quo to
continue till decision of the appeals, by staying operation of the orders
under challenge pending appeal. The purpose of preferring the appeal
which is a statutory right is certain to be lost if in the meantime, on the
basis of the rejection of the change reports the status quo is sought to
be altered. Pertinently, change reports which have been rejected by
15 WP / 5594 / 2022
the learned Assistant Charity Commissioner were of the years 2007,
2008 and 2011 and there was no order restraining the petitioners from
managing the affairs of the trust interregnum.
23. The learned Joint Charity Commissioner has not recorded
sound and convincing reasons while refusing to stay operation of the
orders under challenge before her.
24. True it is that the petitioners in writ petition no. 5594 of
2022 had expressed in the contents of the applications (Exhibit - 3 and
Exhibit - 48) that the affairs of the trust were in doldrums. However, as
has been rightly submitted by learned advocate Mr. Brahme, the
learned Joint Charity Commissioner has not appreciated and
understood the word in the context in which it was used. If one
considers the context in which such a word was used in these
applications, it is quite apparent that though the petitioners had used
the word, it has not been used to allege that there are rampant
mismanagement in the administration of the trust. Rather, they were
intending to demonstrate that if the orders under challenge in the
appeal were not stayed and if in view of several applications preferred
by different persons under section 73A of the Trusts Act, to participate
in the appeals, decision on which would have taken time and would
have prolonged the hearing of the appeals the affairs of the trust would
be in doldrums. It was specifically mentioned that the application
(Exhibit - 48) in which this word was used was to be read along with
16 WP / 5594 / 2022
the contents of the appeal memo and the stay application wherein it
was pointed out that after rejection of the change reports they were not
being allowed to operate the bank accounts of the trust on the
objections raised by some of the respondents.
25. The learned Joint Charity Commissioner has clearly
picked up this word "doldrums" to reach a conclusion that the affairs of
the trust are not being managed properly by clearly overlooking the
fact that though there have been long standing litigation and bitter
relations, the petitioners in writ petition no. 5594 of 2022 were the
persons who were managing the affairs of the trust and have been
operating the bank accounts.
26. It was not the case that there was some order in some
proceeding pending before the authorities under the Trusts Act either
under section 41A, 41E or 41D etc. specifically preventing petitioners
from writ petition no. 5594 of 2022 in taking part in the administration
of the trust. Needless to state that there must be someone who must
have been looking after the management of the trust when it is
nobody's case that in spite of being a religious trust, it has not been
functioning for years together.
27. Overlooking all the afore-mentioned facts and
circumstances, the learned Joint Charity Commissioner has exercised
the jurisdiction which though vested in her was not called upon to be
exercised while directing appointment of the administrator.
17 WP / 5594 / 2022
28. There are ample provisions under the Trusts Act to issue
appropriate directions for the better management of the trust. But
then, this can be done in an appropriate enquiry after extending an
opportunity of being heard to all the persons stated to be having
interest in the trust. In her enthusiasm, simultaneously with the
rejection of the application for interim relief, without there being any
request or even material, cogent and convincing, in exercise of
administrative power, she has appointed the administrator.
29. There is no record to show that the learned Joint Charity
Commissioner had even hinted at and put the parties to notice that she
was thinking of appointing an administrator so that they could have
taken opportunity to even address her in that respect. When she was
only called upon to decide the applications for stay (Exhibit - 3 and
Exhibit - 48), the parties could not have contemplated any such
direction for appointment of an administrator. Certainly, such a
direction must have come as a bolt from the blue. This is not the
manner in which the authority conferred with a power to decide a
judicial enquiry can function.
30. We need not delve deep and it would be sufficient to
observe that apart from the fact that the learned Joint Charity
Commissioner has erred in refusing to allow the applications (Exhibit -
3 and Exhibit - 48) even direction to appoint administrator is clearly
perverse, arbitrary and capricious.
18 WP / 5594 / 2022
31. The writ petitions are allowed. The order impugned in all
these writ petitions is quashed and set aside. The application (Exhibit
- 3) filed in Appeal no. 1 of 2021 is allowed.
32. Hearing of the appeals is expedited.
33. Pending civil applications are disposed of.
34. Rule is made absolute in above terms.
[ MANGESH S. PATIL ]
JUDGE
arp/
