Smt. Ushakiran Arun Thute And Others vs Joint Charity Commissioner, Nagpur And ...
2026 Latest Caselaw 254 Bom

Bombay High Court

Smt. Ushakiran Arun Thute And Others vs Joint Charity Commissioner, Nagpur And ... on 12 January, 2026

2026:BHC-NAG:407

                   1201FA340-24.odt                              1                                                    Judgment

                                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                              NAGPUR BENCH, NAGPUR.
                                                   FIRST APPEAL NO. 340 OF 2024
                   1.     Ushakiran Arun Thute, Aged about 69 years.
                   2.     Pandurang Dadaji Dakhore (Dead)
                   3.     Janrao Chandrabhanji Raut (Dead)
                   4.     Baba Chandrabhan Shegaonkar, aged about 73 years.
                   5.     Vitthal Govindrao Awachat, aged about 71 years.
                   6.     Rajaram Ganpati Kumbhalkar, aged about 69 years,
                          R/o Madgaon, Samudrapur, Tah. Samudrapur,
                          District Wardha.
                   7.     Suman Manohar Patil, aged about 83 years,
                          R/o Ramnagar, Hinganghat, Tah. Hinganghat,
                          District Wardha.
                   8.     Ajay Babarao Rithe, aged about 55 years,
                          R/o Matamandir Ward, Hinganghat, Distt. Wardha.
                   9.     Aashirwad Arun Thute, aged about 48 years.
                   Nos.1, 4, 5 and 9 R/o Shri Sant Tukdoji Ward,
                   Hinganghat, District Wardha.
                   10. Vanita Vasantrao Tadas (Dead).                                                        APPELLANTS
                                                                         VERSUS
                   1.     Joint Charity Commissioner, Near G.P.O.,
                          Civil Lines, Nagpur - 01.
                   2.     Shobhatai Krishnarao Zoting (Dead).
                   3.     Asha Prakash Raut, aged about 67 years.
                   4.     Vinayakrao Suryabhanji Bonde, aged about 86
                          years, R/o Hinganghat, Distt. Wardha.
                   5.     Dr.Nisha Krishnarao Zoting, aged about 64 years.
                   Nos.3 and 5 R/o New Malika Apartment, Flat No.201,
                   IInd Floor, Cement Road, Shivaji Nagar, Nagpur-440010.
                   6.     Dr.Sudha Sanjay Sakhare, aged about - years,
                          R/o Ramnagar, Hinganghat, Tah. Hinganghat,
                          Distt. Wardha.                                                                   RESPONDENTS
                   ______________________________________________________________
                      Shri Mukesh Samarth, Senior Advocate with Shri V.K. Paliwal, counsel for the
                                                                   appellants.
                          Shri S.V. Narale, Assistant Government Pleader for the respondent no.1.
                     Shri Sunil Manohar, Senior Advocate with Shri S.D. Abhyankar, counsel for the
                                                           respondent nos.3 to 5.
                   ---------------------------------------------------------------------------------------------------------------
 1201FA340-24.odt                    2                                   Judgment

CORAM : PRAFULLA S. KHUBALKAR, J.
DATE ON WHICH ARGUMENTS WERE HEARD    : DECEMBER 08, 2025
DATE ON WHICH JUDGMENT IS PRONOUNCWED : JANUARY 12, 2026

JUDGMENT

ADMIT. Heard learned counsels for the parties.

2. In accordance with the order dated 30.07.2025 passed by the

Hon'ble Supreme Court in Civil Appeal no.10991 of 2025, the matter was

remitted to this Court and accordingly, the instant appeal is taken up for

hearing and decision.

3. The instant appeal under Section 41-D(6) of the Maharashtra

Public Trusts Act, 1950 (for short, 'the Act') raises a challenge to the

judgment and order dated 27.02.2024 passed by the Joint Charity

Commissioner, Nagpur in Application no.214 of 2016. The controversy

arises out of the proceedings under Section 41-D of the Act filed by the

respondents no. 2 to 5 herein seeking removal of the appellants as trustees

of Gramin Vikas Sanstha, Hinganghat, District Wardha (for short, 'the

Trust'). For the sake of convenience, the parties are referred to by their

status as per the application under Section 41-D of the Act.

4. The factual set up, in which the controversy arises, is succinctly put

below :-

(i) The applicants and the non-applicants are members of the

public trust viz., Gramin Vikas Sastha, Hinghanghat, District Wardha

having PTR Number F - 72 (Wardha).

 1201FA340-24.odt                  3                                 Judgment

   (ii)         In September-2016, an application under Section 41-D of

the Act came to be filed by the applicants seeking removal of the

non-applicants for wilfully disobeying the orders passed by the

Charity Commissioner, by mainly contending that despite refusal of

permission for development and sale of portion of the property

bearing Khasara no.167/168, certain shops were constructed and

leased out without any permission from the competent authority. It

was alleged that the non-applicants had indulged in the acts of

malfeasance or misfeasance and breach of trust. It was also alleged

that about twenty shops were given on rent and the entire amount

of rent/lease was misappropriated every month by the non-

applicants and on account of all these allegations, the non-applicants

were sought to be dismissed from the trusteeship of the Trust.

(iii) The non-applicants filed reply dated 10.04.2017 to this

application and opposed the same.

(iv) On 24.05.2022, the Joint Charity Commissioner framed

charge against the non-applicants under Section 41-D(i)(b) of the

Act, which is reproduced below:-

"ARTICLE OF CHARGE :-

You Non-applicant No.1 to 10 severally and jointly disobeyed the lawful order passed by the then Joint Charity Commissioner, Nagpur on 25.06.2003 in Application No.32/2002 under Section 36(1)(a)(c) of the Bombay Public Trusts Act, 1950 by constructing shops blocks on the trust property in spite of the prohibition and thereby , committed default as contemplated under Section 41-D(1)(b) of the Maharashtra Public Trusts Act, 1950."

1201FA340-24.odt 4 Judgment

(v) The parties led evidence in which the applicants examined two

witnesses, out of whom AW2-Asha Raut was not cross-examined

whereas the non-applicants examined the non-applicant no.1 as

their witness.

(vi) By the judgment and order dated 27.02.2024, the Joint

Charity Commissioner allowed the application and directed that the

non-applicant nos.1 and 4 to 10 are permanently dismissed from the

post of trusteeship of the Trust and issued directions for

appointment of a 'fit person' for managing the affairs of the Trust.

(vii) This judgment and order was challenged by way of the

instant appeal, which came to be decided by the judgment and order

dated 26.07.2024 by this Court, by which the appeal was dismissed.

(viii) Feeling aggrieved by this judgment, the non-applicants had

preferred a Special Leave Petition before the Hon'ble Supreme

Court, which came to be finally decided by order dated 30.07.2025

by which the matter is remitted back to this Court for deciding the

appeal afresh.

(ix) In the backdrop of aforesaid factual aspects, the appeal is

heard afresh and is being decided by this judgment.

5. It has to be noted that the Hon'ble Supreme Court has remitted the

matter to this Court with a direction to consider the effect of the order

dated 25.06.2003 with respect to the resolution passed by the majority for

the purpose of construction, development and leasing out of the Trust

property and also to consider the issue as to whether the order dated

25.06.2003 passed by the Joint Charity Commissioner will have any 1201FA340-24.odt 5 Judgment

bearing on the action taken by the applicants about the activities of the

non-applicants for development of the property.

6. In this backdrop, in view of the directions of the Hon'ble Supreme

Court, an issue is raised by the counsel for the respondents (applicants

before the Authority) about the nature of remand and he has submitted

that the Hon'ble Supreme Court has remitted the matter with a direction

to consider the specific two aspects and therefore in view the limited

remand, the matter be considered for deciding only the limited issues. In

this regard, it has to be noted that the Hon'ble Supreme Court has

remanded the matter with the specific direction to decide the two issues

as specified in paragraphs 5 and 6 of the order and accordingly the

controversy is being decided by mainly focusing on these two issues.

7. Shri Mukesh Samarth, learned Senior Advocate for the appellants/

non-applicants submitted that the charge levelled against the non-

applicants is unsustainable since there is no violation of order dated

25.06.2003. He submitted that there is no sale of the Trust property and

since the property is given on rent for a period of less than three years,

there is no wilful disobedience of any order attracting provisions of

Section 41-D(1)(b) of the Act. He further submitted that the action of the

non-applicants is supported by a resolution of the executive committee

and as such there is no illegality to the extent of attracting any situation

warranting action under Section 41-D of the Act. He also submitted that

there is no bar on the construction activities even by the order dated

25.06.2003 and the construction of shops for the benefit of the Trust 1201FA340-24.odt 6 Judgment

cannot be construed to be an act sufficient to prove the charge. He also

submitted that the directions to permanently remove the non-applicants is

beyond the scope of Section 41-D of the Act.

8. In support of his submissions, learned Senior Advocate relied upon

judgment of the Coordinate Bench of this Court, in Mukund Vaman Thatte

Versus Sudhir Parshuram Chitale & Others [2012 (3) Mh.L.J. 332]. By

referring to the position of law laid down in this judgment, he submitted

that while dealing with the scope of enquiry under Section 41-D of the

Act, it has been held that unless and until the lapse on the part of the

Trustee is proved to be actuated by dishonesty, drastic action under

Section 41-D of the Act is not warranted and therefore for taking drastic

action of removal, suspension and dismissal from the post of Trustee, a

very high degree of proof is required. He also relied on the judgment of

Coordinate Bench of this Court in Eknath Tukaramji Pise Versus Rama

Kawaduji Bhende [2020 SSC OnLine Bombay 934] and another

unreported judgment of this Court in First Appeal no.1047 of 2023

[Satyawan Namdeo Ajabale Versus Hemraj Dhonduji Marbate ], which

were decided by considering the legal position as laid down in the

judgment in Mukund Waman Thatte (supra). He also relied on the

judgment of the Full Bench of this Court in Sir Jamshetjee Jeejeebhoy

Baronet & Others Versus State of Maharashtra & Others [2004(4) Mh.L.J.

208] and submitted that the activities of the Trust for earning some

additional profit for meeting its expenses cannot be considered to be

against the objective of the Trust.

1201FA340-24.odt 7 Judgment

Further, by placing reliance upon the judgment of the Coordinate

Bench of this Court in Bombay Diocesan Trust Association Private Limited

& Others Versus Revenue P.B. Amolik & Others (Dr.) [2017(5) Bom.C.R.

187], he submitted that since there is no power vested in the Charity

Commissioner to debar a Trustee from re-contesting for the position of

Trustee, consequent upon determination of his tenure and therefore the

impugned order directing permanent dismissal of the non-applicants is

beyond the powers conferred under Section 41-D and hence unsustainable

in law.

9. Per contra, Shri Sunil Manohar, learned Senior Advocate for the

respondent nos.3 to 5/applicants before the Joint Charity Commissioner,

submitted that the non-applicants have acted in violation of the judgment

and order dated 25.06.2003 by which the Joint Charity Commissioner had

rejected permission for development and sale of portion of the Trust

property bearing Khasra nos.167 and 168. He submitted that the

clandestine activities of construction of shops on the said land are against

the object of the Trust and in view of the ratio of the order dated

25.06.2003, there was a complete prohibition for development and sale of

the said Trust property. He also submitted that since the non-applicants

had earlier indulged in several illegalities and were removed from the

Trusteeship as per the provisions of Section 41-D(1)(c) of the Act by order

dated 12.03.2004, they deserved to be removed as Trustees of the Trust on

account of wilful disobedience of orders passed by the Charity

Commissioner.

1201FA340-24.odt 8 Judgment

10. In support of his submissions, the learned Senior Advocate placed

reliance on the judgment of the Hon'ble Supreme Court in Paper Products

Limited Versus Commissioner of Central Excise, Mumbai [(2007) 7 SCC

352] and the judgment of this Court in Deokabai Ganpatsingh Solanke &

Others Versus Miraj Hiraman Ingle & Others [(2001) Mh.L.J. 600] and

by pointing out the legal position as laid down in these judgments, he

submitted that this is a case of limited remand as reflected from the order

passed by the Hon'ble Supreme Court by which the matter is remanded.

He submitted that considering the activities of the non-applicants in

making construction of shops there is apparent violation of the mandate of

order dated 25.06.2003 and the non-applicants deserved to be

permanently removed from the trusteeship.

11. In the backdrop of these submissions, rival contentions fall for my

consideration.

12. The point which arises for determination in the instant appeal is,

'whether the impugned judgment and order passed by the Joint Charity

Commissioner is illegal and needs interference?"

13. While considering the controversy involved in the instant appeal

with respect to the two specific aspects directed to be considered by the

Hon'ble Supreme Court, careful consideration needs to be given to the

judgment and order dated 25.06.2003 passed by the Joint Charity

Commissioner while deciding Application no.32 of 2002. It has to be

noted that this was an application filed by the Trust through Dr. Nisha

Zoting (the respondent no.5 herein)while acting in the capacity of 'fit 1201FA340-24.odt 9 Judgment

person' for seeking sanction for development of the Trust property under

Section 36(1)(a)(c) of the Act and to sell the same by entering into

agreement with prospective purchasers. This application was rejected by

order dated 25.06.2003 and the operative portion of the order is

reproduced below:-

       "(1)    The Application stands rejected.

       (2)     Permission/sanction as sought for development and sale

of portion of trust property bearing Khasra No.167 and 168 is hereby refused.

(3) The applicant is however, at liberty to submit alternate proposal for sale of another immovable property belonging to the trust and recorded on Sch.I by following due procedure of law.

(4) In the facts and circumstances of the case the parties are directed to bear their respective costs of this proceedings."

14. As regards this order, it has to be noted that this was passed on an

application which was filed by a fit person on behalf of the Trust. Further,

the order was passed by considering the fact that there was no resolution

by the body of fit persons for undertaking the work of development and

sale of the Trust property. A perusal of this order clearly shows that after

considering the object of the Trust and even by considering the

circumstances prevailing at that time for seeking permission to develop

and sell the said property, the permission was specifically rejected by

granting liberty to the applicant therein (respondent no.5 herein) to

submit alternate proposal for sale of another immovable property 1201FA340-24.odt 10 Judgment

belonging to the Trust. There is nothing on record to show that this order

was subjected to challenge by any of the parties.

15. Pertinent to note, the non-applicants/appellant herein were parties

to the said proceedings and had knowledge about the rejection of

permission for development and sale of the said Trust property. It is a

matter of fact that about twenty shops are constructed on a portion of the

Trust property and they are given on rent to various persons. Pertinent to

note, specific allegations are made by the applicants in the application

under Section 41-D of the Act about misappropriation of the amount of

rent, (as stated in paragraph 15 of the application), however, there is no

material to demonstrate any misappropriation of the money. It has to be

noted that during cross-examination of the appellant no.1 herein

(Ushakiran Arun Thute), she had categorically admitted that on the

property of the Trust i.e. Khasara nos.167 and 168, they had constructed

the shops/galas in the year 2013 and no prior permission for constructing

the same was taken. She had also admitted that the shops are given on

rent for eleven months without prior permission. She had also admitted

that the Anti-Corruption Bureau has filed a case against her in respect of

misappropriation of funds of the Trust.

16. In the wake of this material being on record, it has to be seen as to

whether the activities of construction and leasing out the shops amount to

wilful disobedience of the order dated 25.06.2003 to the extent of

attracting an action under Section 41-D(1)(b) of the Act.

1201FA340-24.odt 11 Judgment

17. In this regard, it is also necessary to have a look at the

resolution passed by the executive committee in its meeting held on

12.12.2013, by which the elected executive committee has unanimously

resolved to carry out construction of certain shops for the purpose of

securing additional income by way of rent. A perusal of the aforesaid

resolution shows that the elected body of the executive committee has

taken a note of the order dated 25.06.2003 and by considering the needs

of the Trust, it has resolved to go ahead with the construction of certain

shops.

18. It is the contention of the non-applicants/appellants herein

that the order dated 25.06.2003 imposes a restriction on the

composite activity of construction and sale of shops, which was sought for

at the instance of the body of fit persons, whereas the activities of

construction of shops and giving them on rent does not involve sale of the

Trust property and as such, there is no question of wilful disobedience of

the said order. Pertinent to note, it is nobody's case that the shops are sold

to third persons. Further, there are no findings of any wrongful gain

received by the non-applicants or any wrongful loss sustained to the Trust,

neither the allegations of misappropriation of money are proved. At the

same time, it has to be noted that, the Anti Corruption Bureau has

initiated proceedings against the appellant no.1 herein for

misappropriation of property of the Trust, as admitted by her in the cross

examination.

1201FA340-24.odt 12 Judgment

19. After giving anxious consideration to all the above mentioned aspects,

it has to be seen that the activities of the non-applicants/ appellants herein

of making construction of shops on the Trust property bearing Khasara

nos.167 and 168 are carried out despite rejection of permission by the

order dated 25.06.2003. There is nothing on record to demonstrate the

reasons as to why permission was not sought for making development/

construction in view of the alleged change in circumstances or the

requirements for raising funds for the Trust. There is nothing on record to

show that the construction of the shopping mall/shops is an activity for

achieving the object of the Trust. Thus, the activities of construction of

shops and giving them on rent is an activity for commercially exploiting

the Trust property without seeking any prior permission from the

competent authority. In view of the specific rejection of the application by

order dated 25.06.2003 for development and sale of the Trust property

bearing Khasara nos.167 and 168 and specifically granting of liberty to the

Trust to explore other Trust properties for raising income of the Trust, the

decision of the non-applicants/appellants herein to construct a shopping

complex on the very same property has to be considered to be an act of

wilful disobedience of the order passed by the Joint Charity Commissioner,

attracting the provisions of Section 41-D(1)(b) of the Act. However, at the

same time, it has to be noted that there are no findings about any

misappropriation of the funds of the Trust, raised through the rent

warranting drastic action of permanent dismissal/ removal of the non-

applicants/appellants herein as trustees of the Trust.

1201FA340-24.odt 13 Judgment

20. It is beneficial to have a look at the legal position as laid down in

the matter of Mukund Waman Thatte (supra) as stated in paragraph 27

which is reproduced below:-

"27. It is thus clear that imputation reflecting on the integrity of the trustees have to be fortified by proof of high degree which will have to be higher than the standard of proof required in the civil proceedings. Unless and until the lapse on the part of the trustee is proved to be actuated by dishonesty, a drastic action under Section 41D is not warranted. In my opinion, the Charity Commissioner has considered the entire evidence available on record and has, thereafter reached an appropriate decision that the case for drastic action for removal of the trustees had not been made out. No fault can be found with the reasoning of the Charity Commissioner in the impugned order. I entirely agree with the view expressed by the Charity Commissioner that the errors committed by the trustees were not so severe so as to warrant their removal. There is no merit in the Writ Petition and the same will have to be dismissed."

21. A perusal of the impugned judgment and order shows that the Joint

Charity Commissioner has given due consideration to all the relevant

aspects and after considering the evidence on record has inferred that the

acts of the non-applicants certainly amount to wilful disobedience of the

lawful order of the competent authority. On the basis of the material

available before the competent authority, it has also rightly observed

that considering the specific purpose and object of the Act, the

construction of shopping complex resulted in changing the very object

and purpose for which the property was donated. The judgment and

order is well reasoned and does not appear to be perverse. As such, the

point for consideration raised in the instant appeal about legality of the 1201FA340-24.odt 14 Judgment

judgment and order is answered accordingly holding that there is no

perversity with the impugned judgment and order. However, as regards

the proportionality of the direction in the nature of punishment of

permanent dismissal of the non-applicants/appellants herein, I find that

there is no sufficient material to conclude that they are required to be

permanently dismissed without affording them an opportunity to contest

the elections in future. The observations recorded by the Joint Charity

Commissioner in this regard with respect to prior conduct of the non-

applicants/appellants herein and order of permanent dismissal is not

relatable to the charge which is framed regarding wilful disobedience of

orders of the competent authorities. The reliance placed by the counsel for

non-applicants/appellants herein on the judgment in Bombay Diocesan

Trust Association Private limited & Others (supra) thus appears to be

appropriate.

22. The non-applicants/appellants herein are the members of elected

executive committee and have managed the affairs of the Trust for a

considerably long period. Considering the fact that there was no specific

prohibition by order dated 25.06.2003 for making construction, I find that

the acts committed by the non-applicants/appellants herein are not so

severe to warrant their permanent dismissal from the trusteeship. It has

also to be seen that the decision of making construction of shops was

based on resolution of the executive committee and thus it cannot be said

to be completely at the whims of the non-applicants/appellants herein.

Considering the position of law, as laid down by this Court in Mukund 1201FA340-24.odt 15 Judgment

Waman Thatte (supra), it has to be seen that the imputations reflecting on

the integrity of the trustees have to be fortified by proof of high degree,

which will have to be higher than the standard of proof required in the

civil proceedings. In the instant matter the conduct of the appellants

herein in making construction of shops despite earlier rejection has to be

proportionately dealt with, by allowing them to contest the elections to be

held in accordance with the directions of the impugned judgment and

order passed by the Joint Charity Commissioner. Accordingly, to this

extent, the appeal needs to be partly allowed by modifying Clause 2 of the

impugned order. The directions about appointment of 'fit person' and

about holding of elections etc. need no interference.

23. Having regard to the above mentioned factual and legal aspects, the

following order is passed:-

I. The First Appeal is partly allowed only to the extent of challenge to direction of permanent dismissal of the non-applicants, and it is held that the non-applicants in Application no.214 of 2016 before the Joint Charity Commissioner, Nagpur be dismissed as trustees of Gramin Vikas Sanstha, Hinganghat, Wardha for the remainder of their term. Consequently, the directions contained in Clause 3 of the judgment and order dated 27.02.2024 passed by the Joint Charity Commissioner in Application No.214 of 2016 is quashed and set aside.

II. The appeal to the extent of challenge to Clauses 1 and 4 to 15 of the order dated 27.02.2024 in Application No.214 of 2016 is dismissed and resultantly the directions contained in Clauses 1 and 4 to 15 are maintained.

1201FA340-24.odt 16 Judgment

24. The first appeal is disposed of in above terms with no order as to

costs.

(PRAFULLA S. KHUBALKAR, J.)

APTE

Signed by: Apte Designation: PS To Honourable Judge Date: 13/01/2026 11:04:43