Anna Shriram Fate And Others vs Tulshiram S/O. Udaybhan Selokar ...
2023 Latest Caselaw 1920 Bom

                                                        1                                   48.WP.396-2023.odt




               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH AT NAGPUR

                             WRIT PETITION NO. 396 OF 2023
                            ( Anna Shriram Fate & Ors.
                                        Vs.
                   Tulshiram S/o Udaybhan Selokar (Dead) & Ors. )

Office Notes, Office Memoranda                          Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders

                                  Mr. S.V. Manohar, Senior Advocate a/b Mr. S.D. Abhyankar, Advocate for
                                  the Petitioners.
                                  Mr. C.S. Kaptan, Senior Advocate a/b Mr. N.D. Khamborkar, Advocate for
                                  the Respondent Nos. 2, 3, 5, 6 & 7.
                                  Mr. N.A. Gaikwad, Advocate for the Respondent Nos. 9 to 11.
                                  Ms. M.A. Barabde, AGP for the Respondent No.12/State.



                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 27th FEBRUARY, 2023

Heard Mr. Manohar, learned Senior Counsel for the petitioners, Mr. Kaptan, learned Senior Counsel for the respondent Nos. 2, 3, 5, 6 and 7, Mr. Gaikwad, learned Counsel for the respondent Nos. 9 to 11 and Ms. Barabde, learned AGP for the respondent No.12/State.

2. Since respondent Nos. 1, 4 and 8 are no more, Mr. Manohar, learned Senior Counsel for the petitioners, on instructions, seeks leave to delete them. Leave is granted. The deletion be carried out forthwith at the risk and consequences of the petitioners.

3. Since everybody is served, the matter is taken up for final disposal by the consent of learned Counsels 2 48.WP.396-2023.odt

appearing for the respective parties.

4. The petition challenges the judgment dated 27.12.2022 passed by the learned Joint Charity Commissioner, Nagpur in Appeal No.12/2018 (page 204), whereby the judgment of the Assistant Charity Commissioner, dated 17.10.2017 in Scheme Application No. 04/2013 has been quashed and set aside and the Scheme Application is rejected. The contention is that on two grounds the appeal has been allowed, (i) Devman Jangluji Kapgate who had filed the original application alongwith the petitioners, had passed away during the pendency of the application and the impugned judgment, which considers this position to hold that the application was not maintainable is unsustainable in law, in view of what has been held by the Hon'ble Apex Court in Saiyad Mohammad Bakar El-Edroos (Dead) By LRs Vs. Abdulhabib Hasan Arab and Others, (1998) 4 SCC 343, and thus cannot be sustained. Insofar as this ground is concerned, Mr. Kaptan, learned Senior Counsel for the respondent Nos. 2, 3, 5, 6 and 7, does not dispute this proposition, that consequent to the demise of one of the person who has filed the application, the application can be continued.

5. The next ground is that the application has been set aside on an incorrect factual position that Change Report Inquiry No. 482/1999 as directed by the Court was not decided by the Assistant Charity Commissioner, Bhandara.

3 48.WP.396-2023.odt

6. Mr. Manohar, learned Senior Counsel for the petitioners, by inviting my attention to the judgment in the Change Report Inquiry No. 482/1999 dated 23.02.2018, points out the Change Report Inquiry No.482/1999 has been rejected on 23.02.2018 (page 92) and though the order by the Assistant Charity Commissioner, Bhandara was passed on 17.10.2017 not deciding of the Change Report Inquiry No. 482/1999, would not have any bearing upon entertaining and considering of Scheme Application No. 04/2013.

7. It is not in dispute, that by the time the appeal was decided on 27.12.2022, the Change Report Inquiry No. 482/1999, stood rejected by the judgment dated 23.02.2018 by the Assistant Charity Commissioner, Bhandara, which would indicate that Appeal No. 12/2018, ought to have been decided on merits. Since this has not been done, the impugned judgment in appeal, is hereby quashed and set aside and the matter is remanded back to the learned Joint Charity Commissioner, Nagpur for decision according to law.

8. The party shall appear before the learned Joint Charity Commissioner, Nagpur on 06.03.2023 and the appeal shall be decided as expeditiously as possible.

9. The Petition is allowed in the above terms. No costs.

Signed By:SHRIKANT DAMODHAR BHIMTE

Signing Date:27.02.2023 18:29 JUDGE SD. Bhimte