Bombay High Court
Ashok Shreekrishna Beharay vs The Joint Charity Commissioner Pune And ... on 16 October, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:45441
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Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8180 OF 2025
Ashok Shreekrishna Beharay ...Petitioner
Versus
1. The Joint Charity Commissioner
2. Maharashtra Technical Education Society ...Respondents
Mr. Shailendra Kanetkar, i/b Nikhil Dongre, for the
Petitioner.
SANTOSH
SUBHASH Mr. Ram Apte, Senior Advocate, a/w Padmanabh Pise and
KULKARNI Sejal Hariyan, i/b P. Padmanabh and Associates, for
Digitally signed by
SANTOSH SUBHASH
KULKARNI
Respondent No.2.
Date: 2025.10.16
21:35:27 +0530
Smt. M. S. Bane, APP for the State-Respondent No.1.
CORAM: N. J. JAMADAR, J.
RESERVED ON: 20th SEPTEMBER, 2025
PRONOUNCED ON: 16th OCTOBER, 2025
JUDGMENT:
-
1. Rule. Rule made returnable forthwith and, with the
consent of the learned Counsel for the parties, heard finally.
2. The challenge in this petition is to an order dated 2 nd
April, 2025 passed by the learned Joint Charity
Commissioner, Pune, on an application under Section 73A for
impleadment of the petitioner as a party to a proceeding
under Section 36A(3) of the Maharashtra Public Trust Act,
1950 ("the Trust Act, 1950"), whereby the said application
came to be rejected.
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3. The background facts necessary for the determination
of this petition can be stated as under:
3.1 The Maharashtra Technical Education Society (R2) is a
Society registered under the Societies Registration Act, 1860
and a Trust under the Trust Act, 1950. The petitioner claims
to be a member of respondent No.2 Trust and also a member
of the Board of Control (BOC) of respondent No.2. The
petitioner was the Chairman of the BOC of the Trust (R2)
from the year 1999 to 2007. The respondent No.2 is a well-
known charitable institution, which runs educational
institutions including reputed Medical and Engineering
Colleges.
3.2 In the wake of the disputes in regard to the
management of the affairs of respondent No.2 Trust,
numerous proceedings have been initiated by and on behalf
of the petitioner and the rival faction. The petitioner was
removed from the BOC and, eventually, as a member of
respondent No.2 Trust. The proceedings instituted at the
instance of the petitioner and others assailing those decisions
are sub-judice.
3.3 The Secretary of respondent No.2 Trust filed an
application being loan Application No.58 of 2023, under
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Section 36A(3) of the Trust Act, 1950 seeking permission for
availing loan of Rs.10 Crore from Janata Sahakari Bank, to
be repaid in seven years, alongwith interest at the rate of
9% p.a to finance the balance construction of MTES
International English School building at CTS No.4397, Sangli,
Maharashtra. Copy of the sanction letter dated 1 st September,
2023 issued by the Bank was annexed to the said
application.
3.4 The petitioner preferred an application under Section
73A of the Trust Act, 1950 seeking a direction to implead him
as a party respondent to the said application. It was, inter
alia, asserted that the applicant had no authority to file the
said application and represent respondent No.2 Trust.
Various litigations are pending before the Authorities as well
as in Courts. The Resolution dated 8th February, 2023,
passed by the Trust to seek permission of the Charity
Commissioner to avail the loan is false and illegal. The
alleged Trustees have no authority to pass such Resolution.
In fact, the person, who filed application on behalf of
respondent No.2 Trust, is neither a trustee nor a member of
respondent No.2 Trust. Therefore, it was necessary to give an
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opportunity to the petitioner to bring all the relevant facts on
record.
3.5 The application was resisted by respondent No.2.
3.6 By the impugned order, the learned Joint Charity
Commissioner rejected the application for impleadment
observing inter alia that there was nothing to show that, the
intervenor was interested in the loan application filed on
behalf of the respondent No.2. Nor the intervenor could
demonstrate that, his intervention would assist the Authority
in deciding the loan application. Though there were several
proceedings between the parties, yet, having regard to the
nature of the prayer in the application under Section 36A(3)
of the Trust Act, 1950, the impleadment of the petitioner did
not appear to be necessary.
4. Being aggrieved, the petitioner has invoked the writ
jurisdiction.
5. I have heard Mr. Shailendra Kanetkar, the learned
Counsel for the petitioner, and Mr. Ram Apte, the learned
Senior Advocate for respondent No.2 - Trust, at some length.
The learned Counsel took the Court through the pleadings
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before the learned Charity Commissioner and filed in this
Court.
6. Mr. Kanetkar, the learned Counsel for the petitioner,
submitted that, the petitioner is a member of respondent
No.2 Trust. The petitioner was the Chariman of the BOC of
respondent No.2. The petitioner and other members of the
BOC were allegedly illegally removed in an Extraordinary
General Body Meeting held on 3rd August, 2011. The legality of
all those actions is sub-judice. Therefore, till the contentious
issues are finally decided, it cannot be said that the petitioner
is not an interested person.
7. Inviting the attention of the Court to an order dated 10 th
September, 2023 in an application for intervention in Change
Report No.850 of 2010, whereby the petitioner and Mr. Vijay
Pusalkar were allowed to intervene under Section 73A of the
Trust Act, 1950, Mr. Kanetkar would urge the locus of the
petitioner to be heard in the matter could hardly be
questioned.
8. Mr. Apte, the learned Senior Advocate for respondent
No.2 - Trust, would urge that, the endeavour of the petitioner
has been to put hindrances in the smooth management of
the affairs of respondent No.2 - Trust. The petitioner has
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been resorting to unwarranted litigation so as to derail the
activities of the Trust and prevent the Trust from achieving its
object. The petitioner has been removed by passing a
resolution in Extraordinary General Body Meeting in view of
the illegal acts and gross misconduct on the part of the
petitioner and the other members of the BOC. Attention of
the Court was invited to the minutes of the Extraordinary
General Body Meeting dated 3rd August, 2011, wherein, the
General Body of respondent No.2, resolved to hold the
petitioner and others responsible for the illegal acts and the
misconduct, and removed them from the BOC with
immediate effect.
9. Mr. Apte laid emphasis on the fact that, the challenge to
the said resolution in a civil suit, i.e. RCS/1085/2011, did not
succeed. An application for temporary injunction was rejected
by the trial Court on 17th October, 2011. An appeal preferred
there-against also failed. A writ petition, being WP/2055/
2020, was also dismissed by this Court by an order dated 4 th
March, 2021.
10. In the intervening period, Mr. Apte would urge, by a
further resolution passed in the Extraordinary General Body
Meeting of the Trust on 3rd December, 2016, the petitioner
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and others were removed from the membership of respondent
No.2 Trust. The said resolution has not been challenged. In
this view of the matter, the person, who has been removed
from the membership of the Trust for the illegal acts and
gross misconduct, cannot be said to be a person having
interest in the affairs of the Trust. The learned Joint Charity
Commissioner was, therefore, justified in rejecting the
application for intervention.
11. In the light of the aforesaid submissions, especially the
contention that the petitioner had been removed from the
very membership of respondent No.2 Trust, a further affidavit
came to be filed on behalf of the petitioner. It was asserted
that the action of removal of the petitioner from the
membership of the Trust under a purported Resolution
passed in the Extraordinary General Body Meeting of the
Trust on 3rd December, 2016 was illegal as a change report
incorporating the amendment to the constitution of
respondent No.2 Trust giving power to remove a member from
the Trust has been rejected by the Deputy Charity
Commissioner. Once the change report proposing
amendment in the constitution of the Trust giving power to
remove a member is not accepted, all the consequential
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actions, in the intervening period, on the strength of the
proposed change, stand vitiated, submitted Mr. Kanetkar.
12. Mr. Apte joined the issue by canvassing a submission
that the resolution dated 3rd August, 2011 removing the
petitioner from the BOC for the misconduct still holds the
field and the subsequent resolution removing the petitioner
from the very membership of the Trust dated 3 rd December,
2016 has nowhere been challenged. In these circumstances
and especially having regard to the proceedings in which
intervention is sought, the learned Joint Charity
Commissioner cannot be said to have exercised the discretion
in such a manner as to warrant interference in exercise of the
writ jurisdiction.
13. Mr. Apte strenuously submitted that each day's delay in
availing the loan is causing grave prejudice to the respondent
No.2 Trust. Mr. Apte would urge, recognizing the urgency in
such matters, the legislature has provided that an application
for loan shall be decided expeditiously and preferably within
a period of 15 days if the Bank or financial institution has
provisionally sanctioned the loan.
14. I have given careful consideration to the submissions
canvassed across the bar. Evidently, two factions are at
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loggerheads. Numerous proceedings making allegations and
counter allegations have been filed. Though the challenge to
the removal of the petitioner and the then co-members of the
BOC in a suit is sub-judice, yet, the fact remains that there is
no restraint on execution, operation and implementation of
the said resolution passed on 3rd August, 2011. In 2016,
the petitioner and other members have also been removed
from the membership of respondent No.2 Trust. An
endeavour was made on behalf of the petitioner to urge that,
the petitioner could not challenge the said resolution as he
was unaware of the said resolution.
15. Keeping the aforesaid backdrop in view, the justifiability
of the prayer of the petitioner for impleadment in a
proceeding under Section 36A(3) of the Trust Act, 1950 is
required to be examined. The relevant part of Section 36A
reads as under:
"36A. Powers and duties of, and restrictions on, trustees.--
(1) A trustee of every public trust shall administer the
affairs of the trust and apply the funds and properties
thereof for the purpose and objects of the trust in accordance
with the terms of the trust, usage of the institution and
lawful directions which the Charity Commissioner or court
may issue in respect thereof, and exercise the same care as a
man of ordinary prudence does when dealing with such
affairs, funds or property, if they were his own.
(2) The trustee shall, subject to the provisions of this Act
and the instrument of trust, be entitled to exercise all the
powers incidental to the prudent and beneficial management
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of the trust, and to do all things necessary for the due
performance of the duties imposed on him.
(3) No trustee shall borrow moneys (whether by way of
mortgage or otherwise) for the purpose of or on behalf of the
trust of which he is a trustee, except with the previous
sanction of the Charity Commissioner, and subject to such
conditions and limitations as may be imposed by him in the
interest or protection of the trust:
Provided that, the Charity Commissioner or the Joint Charity
Commissioner, as the case may be, shall decide the
application for borrowing money from the Bank or Financial
Institution forthwith and preferably within a period of fifteen
days, if the Bank or the Financial Institution has
provisionally sanctioned the loan."
16. Section 36A enjoins a trustee of a public trust to
administer the affairs of the trust and apply the funds of the
Trust for the purpose and objects of the Trust. A Trustee is
enjoined to exercise the same amount of care as a man of
ordinary prudence would exercise in management of his own
affairs, funds or property. Sub-section (3) of Section 36A
contains an interdict against borrowing money for the
purpose or on behalf of the Trust, by its trustee, except with
the previous sanction of the Charity Commissioner, and
subject to such conditions and limitations as may be imposed
by the Charity Commissioner.
17. The aforesaid restriction in the matter of borrowing is
necessary because, though the property of the public trust
vests in the trustees, yet, they are not the owners of the trust
property. The property vests in them for the purpose of
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discharge of the object of the Trust or for the benefits of the
beneficiaries. It is, therefore, imperative that the trustees of a
public trust do not have unfettered power to borrow the
money on the credit of the property of the Trust and thereby
encumber the property of the Trust. The legislature,
therefore, considered it imperative to put restrictions in the
matter of borrowing for the purpose or on behalf of Trust and
vest authority in the Charity Commissioner to accord
sanction for such borrowing as the Charity Commissioner
exercises parens petrie jurisdiction.
18. The text of sub-section (3) of Section 36A would indicate
that, the exercise of the power to sanction the borrowings, by
the Charity Commissioner, is governed by the paramount
consideration of the interest or protection of the Trust. The
power to sanction the borrowing is not unregulated or
uncanalized. At this stage, the Charity Commissioner would
be required to pose unto himself as to whether, in the given
circumstances, borrowings of money by the Trust is
necessary or advantageous from the perspective of the
administration of the affairs of the Trust and the
advancement of its object. And whether the proposal to
borrow is in the interest of the Trust in the light of the terms
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and conditions, subject to which the loan is to be availed.
Thus, the Charity Commissioner is empowered to impose
conditions and limitations subject to which the trustees can
be permitted to borrow the money for the purposes of or on
behalf of the Trust.
19. In the light of the aforesaid nature of the proceedings
under Section 36A(3) of the Trust Act, 1950, the necessity of
intervention is required to be assessed. The question that
would thus crop up for consideration is, whether the
petitioner has such interest in respondent No.2 Trust which
entitles him to participate in the proceedings under Section
36A(3) so as to influence the exercise of the power by the
Charity Commissioner.
20. The relevant provisions of the Trust Act, 1950 which
bear upon the answer to the aforesaid question need to be
noted. Section 73A, which was inserted by Maharashtra 20 of
1971, reads as under:-
"Section 73A - Power of Power of inquiry officer to join
persons as party to proceedings-
In any proceedings under this Act, any person having
interest in the public trust may be joined as a party to such
proceedings on an application made by such person on such
terms and conditions as the officer holding the inquiry may
order."
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21. Section 2(10) of the Act, 1950 defines, "person having
interest" as under:-
"Section 2(10) - "person having interest" includes
(a) in the case of a temple, person who is entitled to
attend at or is in the habit of attending the performance of
worship or service in the temple, or who is entitled to partake
or is in that habit of partaking in the distribution of gifts
thereof,
(b) in the case of a math, a disciple of the math or a
person of the religious persuasion to which the math
belongs,
(c) in the case of a Waqf, a person who is entitled to
receive any pecuniary or other benefit from the Waqf and
includes a person who has right to worship or to perform any
religious rite in a mosque, idgah, imambara, dargah,
maqbara or other religious institution connected with the
Waqf or to participate in any religious or charitable
institution under the Waqf,
(d) in the case of a society registered under the Societies
Registration Act, 1860, any member of such society, and
(e) in the case of any other public trust, any trustee or
beneficiary."
22. Sub section (2A) of section 2, which was inserted by
Maharashtra Act No. 55 of 2017 with effect from 10 th October,
2017, defines "beneficiary" as under:-
"Section 2(2A) - "beneficiary" means any person entitled to
any of the benefit as per the objects of the trust explained in
the trust deed or the scheme made as per this Act and
constitution of the trust and no other person".
23. Evidently, under Section 2(10) of the Act, the definition,
"the person having interest" is inclusive. It would be
contextually relevant to note that the word, "includes" in
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section 2(10) came to be substituted for the word, "means" by
Bombay 28 of 1953. It is trite, the use of the word, "includes"
in a definition gives the term an expansive meaning. In
contrast, the legislature uses the word "means" to give a
precise and definite meaning. In substituting the word,
"includes" for "means", the legislative intention of expanding
the scope of the term, "person having interest" becomes
explicitly clear. An inclusive definition, as is trite, covers in its
fold the matters which are not specifically enumerated in the
said definition.
24. A profitable reference in this context can be made to a
Division Bench judgment in the case of Digambar Pralhad Jot
and Others vs. Satyanarayan Biharilal Zunzumwala and
Others1. The Division Bench adverted to the legislative
change brought about by substituting the word, "includes" for
the word "means" and emphasized that the definition of the
phrase, "the person having interest" is not exhaustive. The
observations of the Division Bench read as under:-
"7] .... ....... Initially in this definition clause in place of the
word 'includes' the word 'means' was used by the Legislature.
The word 'includes' was substituted by Bombay Act No. 28 of
1953. It is well settled that the word 'include' in the
interpretation clause is intended to be enumerative and not
exhaustive. It has an extending force and it does not limit the
meaning of the term to the substance of the definition. When
1 AIR 1978 Bom 196.
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it is intended to exhaust the signification of the words
interpreted, the word 'means' is used: -- See
Chandrabhagabai Ashtekar v. State Oil Bombay (1958 Nag LJ
J72).
(emphasis supplied)
25. The import of the phrase, "person having interest" came
up for consideration before the Supreme Court in the case of
Shree Gollaleshwar Dev and Ors. vs. Gangawwa Shantayya
Math and Ors.2. The correctness of the view of the Full Bench
decision of Karnataka High Court that, the expression
"person having interest in the trust" occurring in section
2(10) and section 50 of the Trust Act, 1950 does not include
the trustees when they institute the suit in their capacities as
trustees for vindicating their private rights, was challenged
before the Supreme Court. After adverting to the provisions of
section 2(10) and 2(18), which defines "a trustee", and section
50 of the Act, 1950, the Supreme Court did not approve the
view of the Full Bench of the Karnataka High Court. It was,
inter alia, observed as under :-
"12] ... ...... The definition of the words "person having
interest" in section 2(10) of the Bombay Public Trust Act, as
amended in 1953 was made inclusive to set at rest all doubts
and difficulties as to the meaning of these words, which were
intended and meant to be used in a generic sense so as to
include not only the trustees but also the beneficiaries and
other persons interested in the trust. The definition of the
expression person having interest in section 2(10) is wide
enough to include not merely the beneficiaries of a temple,
math, Waqf etc. but also the trustees. Therefore appellants
2 (1985) 4 SCC 393.
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Nos. 2 and 3 who undoubtedly are members of the founder's
family i.e. beneficiaries, are entitled to attend at performance
of worship or service in the Distribution of offering to the
also entitled to partake in the distribution of offering to the
deity and thus answer the description "person having inter"
as defined in Section 2 (10) of the Act."
(emphasis supplied)
26. In the case at hand we are primarily concerned with
clause (e) of section 2(10) of the Act, under which "person
having interest" includes, "any trustee or beneficiary". As
noted above, the definition of "beneficiary" came to be
inserted by Amendment Act, 2017. Interestingly, the
legislature has used the word, "means" while defining,
"beneficiary". Thus, the "beneficiary" means, any person
entitled to any of the benefits as per the object of the trust
explained in the trust deed or the scheme made as per the
said Act and Constitution of the trust. What makes the
legislative intent abundantly clear is the use of the
expression, "and no other person". This implies that the
legislature made a conscious effort to exclude a person other
than the one who is entitled to obtain any benefit under the
objects of the trust, from the definition of "beneficiary". There
is no scope to expand the meaning of the term, "beneficiary"
under section 2(2A). The legislative intent that the term
"beneficiary" is restricted to that class of persons who are
entitled to obtain benefit under the trust is underscored by
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the exclusionary clause "and no other person". It is in the
backdrop of these provisions, the import of the term, "person
having interest" deserves to be construed.
27. To qualify as "person having interest", under clause (e)
of section 2(10) in the class of beneficiary, the person must
derive benefit under the trust.
28. In the case of Shree Khambhati Modh Vanik Samanj vs
The State of Maharashtra and others 3, this Court had an
occasion to cull out the legal position as regards intervention
under Section 73A of the Trust Act, 1950, as under:
"42. The legal position which thus emerges is that the
Section 73A of the Trust Act, 1950 allows intervention by a
party who is having interest in the public trust in any
proceeding under the Trust Act, 1950. In view of wide
amplitude of power exercised by the Charity Commissioner
under section 36 of the Trust Act, 1950, especially when the
question is of alienation or otherwise disposition of the
property of the public trust, a person having interest in the
trust can legitimately invoke the provisions contained in
section 73A of the Act, 1950. An application under section
36 of the Act, 1950 is one of the proceedings envisaged by
section 73A in which intervention can be sought by a person
having interest in a public trust of which the property is
sought to be alienated. Undoubtedly, the definition of
"person having interest" is inclusive and thus of wide import.
However, where the public trust is covered by the clause (e)
of section 2(10), the person who is to be included in the
definition, ought to be either a trustee or beneficiary. The
definition of "beneficiary", in turn, as noted above, is precise
and confined to a person who obtains benefit under the
object of the trust. Even if the expression "person having
interest" is construed rather generously, there is an essential
distinction between the interest in the public trust and
interest in the property of the trust. In the latter case, an
inquiry into the nature of the interest is warranted. If it
3 WP/13384/2022 dt.20/12/2023.
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turns out that such interest is adverse to, or in conflict with,
the interest of the trust, the person propounding such
interest, cannot be said to be a person having interest."
29. Reverting to the facts of the case in the light of the
nature of the proceedings in which the intervention is sought,
it may be apposite to consider the premise on which
intervention was sought, which becomes evident from the
averments in the application (Exhibit-52). A careful perusal
of the said application would indicate that the entire thrust of
the application was on the alleged incompetence of the
person, who filed the application under Section 36A(3) on
behalf of respondent No.2 Trust, to file such application and
represent the Trust. The challenge was primarily on the
count that the removal of the petitioner and others was illegal
and, consequently, the persons, who were in the management
of the affairs of respondent No.2 Trust, had no authority to
represent the Trust. One gets an impression that, what was
essentially sought to be agitated was the right to manage the
affairs of respondent No.2 Trust rather than the justifiability
of the application for permission to avail loan, or for that
matter the necessity of loan, for giving effect to the objects of
the Trust. Barring a stray sentence that there is no
necessity of the loan, the entire application is replete with the
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contentions revolving around the right to manage the affairs
of the Trust.
30. At this juncture, the fact that the petitioner has been
removed from the membership of respondent No.2 Trust
assumes material significance. Once the petitioner ceased to
be a member of respondent No.2 Trust, the petitioner loses
the essential qualification as in the case of a society
registered under the Societies Registration Act, a "member" of
such Trust can be said to be a person having interest under
Section 2(10)(d) of the Trust Act, 1950. Likewise, to qualify
under Clause (e) of sub-section (10) of Section 2, the person
is required to be either a trustee or beneficiary.
31. The submission of Mr. Kanetkar that the removal of the
petitioner as a member of the Trust is consequential to his
removal as a member of BOC and, therefore, cannot be said
to have attained finality, does not merit acceptance in this
proceeding and at this stage. The fact remains that the
removal of the petitioner under the Resolution dated 3 rd
December, 2016 has not been yet assailed.
32. If viewed in the backdrop of the chequered history of
litigation and the reasons ascribed in the application for
intervention, it becomes evident that if the petitioner is
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allowed to intervene in the proceeding under Section 36A(3)
of the Trust Act, 1950, the scope of the said proceeding would
be expanded to question the very authority of the rival faction
to manage affairs of the Trust and file the application for
permission to avail the loan. In substance, the said
proceeding would also become extension of the numerous
proceedings in which the petitioner and the current
management have been fighting over the right to manage the
affairs of the Trust, tooth and nail.
33. Mr. Apte was justified in submitting that the anxiety of
the legislature in providing that an application for sanction
for borrowing money from Bank or financial institution be
decided expeditiously, must enter the determination. An
intervention at the instance of the petitioner in the said
proceeding is fraught with the risk of converting the said
proceeding into the dispute over the management of the
affairs of the Trust and thereby unduly protract the decision
on the said application.
34. The submission of Mr. Kanetkar that the petitioner was
permitted to intervene in the change report proceedings does
not advance the cause of the petitioner as the nature of the
proceeding in which intervention is sought also assumes
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significance. In a change report proceeding, in the context of
the dispute over the management of the affairs of the Trust,
the petitioner may legitimately intervene as the question of
lawful appointment and removal of a Trustee/Managing
Committee Member would be determined in such proceeding.
Conversely, in a proceeding under Section 36A(3), the enquiry
would be materially distinct.
35. In the totality of the circumstances, the learned Joint
Charity Commissioner was justified in declining to grant
permission to intervene in the said proceeding. Hence, the
petition deserves to be dismissed.
36. Hence, the following order:
:ORDER:
(i) The petition stands dismissed.
(ii) The learned Charity Commissioner is requested to
decide the application for grant of sanction in
accordance with law.
(iii) Rule discharged.
(iv) No order as to costs.
[N. J. JAMADAR, J.]
