Bombay High Court
Pooja Kishorkumar Jaiswal @ Sau. ... vs Learned Asst. Charity ... on 12 October, 2022
Bench: A.S. Chandurkar, M. W. Chandwani
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.2018 of 2021
Smt. Pooja Kishorkumar Jaiswal
@ Sau. Pooja w/o Amol Jaiswal,
Age 26 years, Occ. Household,
R/o. Vishal, A-2, Pawan Watika,
New Tapadiya Nagar, Tq. and District Akola.
....... PETITIONER
...V E R S U S...
1. Learned Asst. Charity Commissioner,
Akola Region, District Akola.
2. Shri Narayankumar Jawaharlalji Jaiswal,
Age 58 years, Occupation-Agriculturist,
R/o. Pinjar, Tq. Barshitakali, District Akola.
3. Shri Lahuram Shivlalji Jaiswal,
Age-67 years, Occupation-Agriculturist,
R/o. Sikoda, Tq. and District Akola.
4. Shri Satyanarayan Mahavirlal Jaiswal,
Age-76 years, Occupation-Agriculturist,
R/o. Sanglud Bk, Tq. and District Akola.
5. Shri Jagdishlal Shankarlal Jaiswal,
Age-62 years, Occupation-Agriculturist,
R/o. Punoti Kd. Tq. and District Akola.
6. Shri Amol Rameshwarlal Jaiswal,
Age-33 years, Occupation-Legal practitioner,
R/o. Vishal A-2, Pawan Watika,
New Tapadiya Nagar, Tq.and District Akola.
....... RESPONDENTS
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Shri D.P.Bhongade, Advocate for petitioner.
Shri C.A.Babrekar, Advocate for respondent nos. 2, 3 and 5.
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CORAM :- A.S.CHANDURKAR AND M. W. CHANDWANI, JJ.
DATE :- OCTOBER 12, 2022
ORAL JUDGMENT (Per A.S.CHANDURKAR, J.)
Rule. Rule made returnable forthwith and heard the learned
counsel for the parties.
2. The challenge raised in this writ petition is to the order 22.01.2021
passed under Section 41A of the Maharashtra Public Trusts Act, 1950 (for
short, the said Act). It is the case of the respondent nos. 2, 3 and 5 herein
that they are members of one Kanhaiyalal Trust, Akola having registration
No. A-122. Field bearing Gat No.297 admeasuring 11 H 55 R is stated to be
owned by the said public Trust. The husband of the petitioner-respondent
no.6 is alleged to have sold 6 H of the aforesaid land to the petitioner on
26.06.2020. It is their case that in absence of any permission sought under
Section 36 of the said Act, such alienation could not have been effected. In
that backdrop the respondent nos. 2, 3 and 5 filed an application under
Section 41A of the said Act praying that the petitioner as well as her
husband-respondent no.6 be restrained from entering the Trust property and
from dealing with the same. The learned Assistant Charity Commissioner by
the order dated 22.01.2021 allowed the said application partly and directed
the petitioner and the respondent no.6 not to create any third party rights in
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the Trust property and also restrained the petitioner from disturbing the
peaceful possession of the trustees. Various other ancillary directions were
also issued by the learned Assistant Charity Commissioner. Being aggrieved
the petitioner has challenged the aforesaid order.
3. Shri D.P.Bhongade, learned counsel for the petitioner submitted
that it was not permissible for the learned Assistant Charity Commissioner to
have issued any prohibitory order especially when the power exercised was
under Section 41A of the said Act. Relying upon the decision in Vanmala
Manoharrao Kamdi and others Vs. Deputy Charity Commissioner, Nagpur
and others [ 2012(3) Mh.L.J. 594], it was submitted that the power to be
exercised was purely administrative in nature and there was no jurisdiction
with the learned Assistant Charity Commissioner either to adjudicate any
dispute or to pass any adjudicatory order and restraining the petitioner from
creating any third party rights and further restraining the petitioner from
disturbing the peaceful possession of the trustees. The learned Assistant
Charity Commissioner had travelled beyond the scope as permissible under
Section 41A of the said Act. It is submitted that the petitioner was in
possession of the suit property pursuant to a registered sale deed dated
26.06.2020 and hence unless that sale deed was set aside, the petitioner
could not have been restrained from enjoying the property as purchased. On
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this count, it is submitted that the impugned order was liable to be set aside.
4. Shri C.A.Babrekar, learned counsel for the respondent nos. 2, 3
and 5 on the other hand submitted that in the absence of any permission
under Section 36 of the said Act, it was not permissible for the respondent
no.6 to have executed the sale deed in favour the petitioner. The Resolution
on the basis of which the sale deed was executed was not signed by the
majority of the trustees. Similarly, the sale deed being without permission of
the learned Joint Charity Commissioner, no rights were created in favour of
the petitioner. The directions issued were with a view to protect the interest
of the Trust. It is thus submitted that no interference with the impugned
order was called for. In addition, it was submitted that the trustees had filed
proceedings under Section 41E of the said Act praying that the petitioner be
restrained from alienating the Trust property in any manner whatsoever. The
learned Joint Charity Commissioner on 11.10.2022 has passed an interim
order granting such temporary injunction in favour of the trustees. The
learned counsel produced the said order for perusal. Hence no interference
with the impugned order was called for.
5. We have heard the learned counsel for the parties and we have
perused the documents on record. The petitioner claims right in 6 H of field
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Gat No.297 on the basis of sale deed stated to be executed by the respondent
no.6 on 26.06.2020. According to the trustees, the said land belongs to the
Trust while according to the petitioner the sale deed has been executed in
her favour in a legal manner. The learned Assistant Charity Commissioner
while considering the application under Section 41A has noted that in
absence of any sanction under Section 36 of the said Act, it was not
permissible for the respondent no.6 to alienate the Trust property. Hence
one of the directions issued to the trustees was to file appropriate
proceedings for raising a challenge to the sale deed dated 26.06.2020.
Insofar as this direction is concerned, we find that the same is in the interest
of the Trust and would facilitate resolution of the dispute as to whether the
petitioner has a valid title to the suit property or whether the Trust property
has been wrongly alienated. This direction in our view would fall within
purview of Section 41A of the said Act.
6. It is however seen that the learned Assistant Charity Commissioner
has also restrained the petitioner and the respondent no.6 from creating any
third party interest in field Gat No.297 and has also restrained the present
petitioner from disturbing the peaceful possession of the trustees over the
Trust property. It is clear that the jurisdiction to pass an order of injunction
or order of prohibitory nature is conferred by Section 41E of the said Act and
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such power has to be exercised by the learned Charity Commissioner/Joint
Charity Commissioner. In the present case, while entertaining the
application under Section 41A of the said Act, the learned Assistant Charity
Commissioner has exercised such power. The law in that regard has been
laid down by the Division Bench in the decision in Vanmala Manoharrao
Kamdi and others (supra) wherein the scope of power to be exercised under
Section 41A has been clearly explained. It has also been held that power
under Section 41E is of a judicial nature and same has to be exercised in the
manner provided under the said Act. While exercising power under Section
41A it is not permissible to adjudicate the respective rights of the parties. To
that extent the challenge as raised to Direction Nos. 3 and 4 of the impugned
order deserves to be upheld and those directions are liable to be set aside.
At the same time, it is noted that the learned Joint Charity Commissioner on
11.10.2020 has passed an interim order in proceedings under Section 41E of
the said Act. These interim directions for the present are sufficient to
safeguard the interests of the trustees with regard to the Trust property.
7. Insofar as Direction No.7 in the impugned order is concerned, we
find that it would be open for the trustees to take further steps with regard
to the area excluding the petitioner's sale deed. The trustees can rely upon
Direction No.7 while seeking to conduct auction of the Trust property for
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agricultural purposes.
Insofar as Directions Nos. 5 and 8 to 12 are concerned, they fall
within the purview of Section 41A of the said Act. There is no need to
interfere with those directions.
8. In the light of aforesaid discussion, the order dated 22.01.2021
passed under Section 41A of the said Act is interfered with only to the extent
of Direction Nos. 3 and 4 therein. The said directions are set aside. It is
however clarified that the interim order passed in proceedings under Section
41E of the said Act on 11.10.2022 would continue to operate until the same
is modified/vacated in any appropriate proceeding.
Insofar as Direction No.7 is concerned, the same would continue to
operate for the land excluding the area purchased by the petitioner.
9. With these directions the writ petition is partly allowed and
disposed of. Rule accordingly. No costs.
(M.W.CHANDWANI, J.) (A.S.CHANDURKAR, J.)
Andurkar..
Digitally Signed byJAYANT S
ANDURKAR
Personal Assistant
Signing Date:
14.10.2022 14:50
