Bombay High Court
Abdul Wakeel Parvez S/O Abdul ... vs Maqbool Hussain And Others on 6 October, 2023
Bench: A.S. Chandurkar, Vrushali V. Joshi
2023:BHC-NAG:14659-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2319 OF 2023
Abdul Wakeel Parvez S/o Abdul Rafeeque,
Aged about 83 years, Occup.Retired
R/o. Near Qasabpura Masjid, Nal Saheb
Road, Mahatma Phule Bazar, Nagpur-18,
District Nagpur. Petitioner
-Versus-
1. Maqbool Hussain, Aged about 90 years,
R/o. Lashkaribagh, Near Qidwai Football
Ground Nagpur.
2. Mohammad Jamal Ansari S/o Noor
Mohammad, Aged about 86 years,
R/o. Lashkaribagh, Kamal Pan Shop,
Nagpur.
3 Mrs. Qamarjahan Zafar Khan, Assistant
Teacher, Qidwai High School, Aasi Nagar,
Teka Naka Nagpur. (deleted as per Court
order dated 20th July 2023.
4. Education Officer (Secondary), Zilla
Parishad, Nagpur, District Nagpur
5. Deputy Charity Commissioner, Nagpur Respondents
Civil Lines, Nagpur.
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Mr.Raheel J.Mirza, counsel for the petitioner.
Mr.P.A.Abhyankar, counsel for respondent Nos.1 and 2.
Mr.A.A.Madiwale, AGP for the respondent Nos.4 and 5.
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CORAM : A.S. CHANDURKAR AND
VRUSHALI V. JOSHI, JJ.
DATE : 06th October, 2023.
ORAL JUDGMENT (Per : A. S. Chandurkar, J.)
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Heard.
2. Rule. Rule made returnable forthwith. The petition is
heard finally with the consent of the learned counsel for the parties.
3. A pursis has been filed by the learned counsel for the
petitioner stating therein that the respondent No.2 has expired on
19.09.2023. The pursis is taken on record.
4. The petitioner is aggrieved by the order passed on
10.02.2023 by the learned Deputy Charity Commissioner under
Section 41-A of the Maharashtra Public Trusts Act, 1950(for short,
"the said Act of 1950') by which the trustees on Schedule-I have
been directed to manage the trust and it's institutions till regular
trustees are appointed. The principal ground of challenge raised by
the petitioner is that the jurisdiction under Section 41-A of the Act
of 1950 has been exercised by the learned Deputy Charity
Commissioner without examining whether any case was made out
for such exercise. Inviting attention to paragraph No.8 of the
impugned order, it is submitted that only by observing that it was
necessary to issue directions for the administration of the trust, such
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jurisdiction has been exercised. In this regard, reliance is sought to
be placed on the decision in Writ Petition No. 2862 of 2018
(Hazrat Maulana Mufti Mujeeb Ashraf Saheb and ors. Vrs. Allamah
Haji Sayed Hussaini Miyan Sahab and ors.) decided on
13.03.2020. In addition, it is submitted that the petitioner despite
being a trustee was not served in the proceedings. Since, the service
was not effected, there was no opportunity for the petitioner to
contest the said proceedings. It is thus prayed that the impugned
order be set aside.
5. The learned counsel appearing for the respondent No.1
supported the impugned order. According to him, the learned
Deputy Charity Commissioner having been satisfied that a case for
exercise of jurisdiction was made out rightly issued such directions.
He seeks to rely upon the order passed in Writ Petition 7331 of
2019 (Jayant Manoharrao Khedkar and ors. Vs.Ratnakar Ganesh
Kale and ors.) decided on 12.02.2020. He further submitted that
since various change reports are pending and the change report
preferred by the petitioner has been rejected, there is no reason to
interfere with the impugned order.
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6. Having heard the learned counsel appearing for the parties
and having perused the documents on record, it is seen that there is
a dispute with regard to service of notice of the proceedings on the
petitioner. The postal acknowledgment on record is required to be
considered along with the affidavit by the petitioner denying the
service of the notice. The order sheet dated 09.02.2023 indicates
that on said date the petitioner was proceeded against as ex-parte
and the original applicants were heard on the same day. The
impugned order was passed immediately on 10.02.2023.
Another ground that requires consideration of the recording
of the satisfaction by the learned Deputy Charity Commissioner for
exercising power under Section 41-A of the Act of 1950. Said
aspect has been considered in (Hazrat Maulana Mufti Mujeeb
Ashraf Saheb and ors. Vrs. Allamah Haji Sayed Hussaini Miyan
Sahab and ors.) supra, wherein it has been observed that it has to be
indicated that a situation exists for exercise of power under Section
41-A of the Act of 1950. Only after arriving at subjective
satisfaction can the authority exercise such jurisdiction. The said
aspect does not appear to have been gone into by the learned
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Deputy Charity Commissioner while passing the impugned order.
In the decision relied upon by the learned counsel appearing for the
respondent No.1, it has been noted that the Charity Commissioner
had passed a reasoned order which is not the case here. For this
reason, the aforesaid decision does not support the case of
respondent No.1.
7. We find that for the aforesaid reasons, the matter requires
re-consideration by the learned Deputy Charity Commissioner
under Section 41(A) of the Act of 1950. Accordingly, the
following order is passed:
(I) The order dated 10.02.2023 passed on Application
No.317 of 2022 is set aside. The proceedings are remanded for
fresh consideration by the learned Deputy Charity Commissioner
by giving the opportunity to all the parties. Till the said
proceedings are taken up and considered, the trustees at Schedule-I
are permitted to manage the affairs of the trust in accordance with
the provisions of the Act of 1950 and the bye-laws of the trust.
(II) It is made clear that this arrangement is an ad-hoc
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arrangement till the learned Deputy Charity Commissioner
considers the request for making any other appropriate
arrangement till the proceedings are decided on merits. All points
on merit are kept open.
8. The writ petition is allowed in the aforesaid terms. Rule
accordingly. No costs.
(VRUSHALI V. JOSHI, J) (A.S.CHANDURKAR, J)
Signed by: Kavita P Tayade
Designation: PA To Honourable Judge
Date: 07/10/2023 15:37:41 Kavita.
