1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT NAGPUR
Second Appeal No.483/2010
1] Murlidhar Haribhau Nimje,
Aged about 45 years,
R/o Bhisi Takali, Chimur,
district Chandrapur.
2] Ramchandra Bapurao Adhal,
Aged about 52 years, R/o Chikli,
Tahsil Chimur, District Chandrapur.
(Both filed Scheme No. 126/2007 before the
Assitt. Charity Commissioner).
3] Natu Mahadeo Gongal,
Aged about 57 years,
R/o Sale Bhatti, Tahsil
Bhivapur, District Nagpur.
4] Pratap Trimbakrao Badkas,
Aged about 62 years,
R/o Pande Layout, Khamla,
Nagpur.
5] Vijay Balaji Murkute,
Aged about 50 years,
R/o Bhisi, Tahsil Chimur,
District Chandrapur. .. Appellants.
Versus
1. Bhagwan s/o Dinbaji Jambhule,
Aged about 50 years, R/o Dongrala,
Tahsil Chimur, District Chandrapur.
2. Dilip Maroti Gujbhe,
Aged about 42 years,
R/o Dongrala, Tahsil Chimur,
::: Downloaded on - 09/06/2013 16:49:34 :::
2
District Chandrapur.
Nos. 1 and 2 filed Scheme No. 63/2007
and MCA Nos. 7/2010, 8/2010 and 9/2010)
3. Shyamrao Keshavrao Nagpure,
Aged about 56 years, R/o Bhisi,
Tahsil Chimur, District Chandrapur.
(Filed MCA no.16/2010)
4. Uttam Rane,
R/o Dhenge Plot, Gurudeo Ward,
Behind Dr. Milmile's Clinic,
Bhadrawati, Tq. Bhadrawati,
District Chandrpaur.
5. Anil Nathuji Dekate,
r/o Bhisi, Tah. Chimur,
district Chandrapur.
6. Prakash Ramji Nannaware,
r/o Majra Bhadki, Post Khadsangi,
Tq. Chimur, Dist. Chandrapur. . Respondents.
...
Mr. P. C. Madkholkar, Advocate for the appellants.
Mr. S. D. Abhaynkar, Advocate for respondents 1 and 5.
Mr. S. P. Bhandarkar, Advocate for respondent no.3.
Mr. S. V. Manohar, Advocate for respondents 2 and 6.
Mr. A. Naik, Advocate for respondent no.4.
.....
CORAM : R.M. SAVANT, J.
DATED :4/2/2011
ORAL JUDGMENT :
1] This Second Appeal takes exception to the judgment and
::: Downloaded on – 09/06/2013 16:49:34 :::
3
order dated 23.8.2010 passed in Misc. Civil Application Nos.7/2010,
8/2010, 9/2010 and 16/2010. By the said order, Misc. Civil Appeal
No. 7/2010 was allowed. The order of the Assistant Charity
Commissioner dated 14th February 2010 of partly allowing scheme
application No. 126/2007 came to be set aside and the scheme
application no.243/2009 came to be partly modified so as to include
three persons in place of one Nathu Mahadeo Ghughal, Timmbak
Badkar and Vijay Murkute as adhoc trustees.
2] The genesis of the dispute involved in the above
proceedings lie in the application filed under Section 41D of the
Bombay Public Trusts Act, 1950. The said application was filed by one
Nimje which came to be allowed by the Assistant Charity
Commissioner and the Board of Trustees, which was in charge of the
public trust known as “Bhartiya Shikshan Sanstha, Bhisi” came to be
removed and an adhoc body of seven persons along with the
Assistant Charity Commissioner came to be appointed as Ad hoc
trustees to administer the said trust.
3] Some of the intervening facts are not relevant for the
purposes of the present matter suffice is to say that thereafter the
matter was carried in appeal to the Joint Charity Commissioner, who
::: Downloaded on – 09/06/2013 16:49:34 :::
4
issued a direction to the Assistant Charity Commissioner to register a
Suo Motu scheme proceeding for determining a scheme for the
administration of the trust. The further direction was to dispose of
the same within six months from the communication of the order to
him along with the other scheme proceedings pertaining to the trust
if filed by the parties. Accordingly, the scheme proceedings which
were filed and came to be filed were considered by the Assistant
Charity Commissioner. The suo motu scheme proceeding was
numbered as 243/2009 whereas the scheme proceedings which was
filed by one Bhagwan Jambhule was numbered as 63/2007 and one
filed by Murlidhar Nimje was numbered as 126/2007. The Assistant
Charity Commissioner approved the scheme in question by taking into
consideration parts of all the schemes which had been submitted.
However, insofar as the present proceedings are concerned, the
Assistant Charity Commissioner appointed three trustees to be the
Adhoc trustees namely Pratap Badkas, Nathu Ghughal and Prakash
Bargad along with the other seven adhoc trustees. The Trust
Management, therefore, comprised of 10 Ad hoc trustees as per the
order of the Assistant Charity Commissioner. The matter was
thereafter carried in appeal and ultimately came before the District
Court by way of Misc. Civil Application Nos. 7/2010, 8/2010, 9/2010
and 16/2010 impugning the various facets of the orders passed by the
::: Downloaded on – 09/06/2013 16:49:34 :::
5
Assistant Charity Commissioner. The First Appellate Court i. e.
learned District Judge on consideration of the scheme vis-a-vis the
directions issued by the Joint Charity Commissioner as also
considering the credentials of the said three persons Pratap Badkas,
Nathu Ghughal and Prakash Bargad reached a conclusion that they
are not fit persons for being appointed as the trustees of the trust in
question. The learned District Judge was firstly of the view that the
said scheme application No. 126/2007 being filed beyond the time
stipulated by the Joint Charity Commissioner could not have been
taken cognizance of by the Assistant Charity Commissioner. As
regards the three persons namely Pratap Badkas, Nathu Ghughal and
Prakash Bargad, the learned District Judge was of the view that since
two persons out of three persons were part of the old Board of
Trustees which was removed under Section 41D and the third person
being removed on account of the order passed by this Court,
therefore, could not have been appointed as Adhoc trustees. The
learned District Judge placed reliance upon two judgments of this
Court reported in 2005 (3) Mh.L.J. 729 in the matter of
Ramkrushan-Appa s/o Vishweshwar-Appa and others Vs. Krushna
s/o Udayabhanji Ingale and others and similarly in 2010 (4)
Mh.L.J. 729 (Avinath Ganpatrao Shegaonkar Vs. Jayawant
Babasaheb Uttarwar). By the said judgments, the Assistant Charity
::: Downloaded on – 09/06/2013 16:49:34 :::
6
Commissioner while exercising powers under Section 50A is obligated
to see that only fit persons with honesty and integrity are appointed
as trustees. The learned District Judge therefore by the impugned
judgment and order substituted the said three trustees namely
Pratap Badkas, Nathu Ghughal and Prakash Bargad by appointing
three other persons namely Uttam Rane, Anil Dekate and Prakash
Nannaware, who were part of the scheme application being 63/2007.
The above Second Appeal raises the following substantial
question of law:-
“Whether the appointment of the three trustees,
namely Uttam Rane, Anil Dekate and Prakash
Nannaware is in accordance with the law applicable?”
4] In the course of the hearing of the above Second Appeal,
submissions and contra submissions as regards the credentials of the
said three persons have been advanced. While on behalf of the
appellants, the appointment of the said three persons is questioned on
the ground that the law laid down by this Court was not followed in
making their appointments.
5] Per contra, on behalf of the respondents the said
appointments are sought to be justified on the touchstone that the
said persons form part of the scheme bearing No.63/2007 and part of
::: Downloaded on – 09/06/2013 16:49:34 :::
7
the record which was before the Assistant Charity Commissioner and,
therefore, the appellants could not make a grievance or are estopped
from making a grievance of the same.
6] A reading of the impugned order discloses that insofar as
the said three persons are concerned, the learned District Judge has
only taken into consideration the fact that the adhoc body of seven
persons had passed a Resolution in favour of the said three persons
being appointed as trustees. It has to be borne in mind that the said
body of Adhoc trustees was appointed by the Assistant Charity
Commissioner to conduct the affairs of the Trust in the aftermath of
the application filed under Section 41D which came to be allowed.
7] In my view, therefore, the learned District Judge could
not have merely gone by Resolution passed by Adhoc body but ought
to have followed the law laid down by this Court in the matter of
checking their credentials as it requires no debate that the interest of
the trust in such matters is the paramount consideration. The
impugned order merely states that there is a resolution passed in
favour of the said three persons but does not disclose as to why they
are chosen for being appointed as trustees. It was incumbent upon
the learned District Judge when he had though fit to remove the said
::: Downloaded on – 09/06/2013 16:49:34 :::
8
three persons for the reasons mentioned in the order, to also cite the
reasons as to why the said three persons are fit persons for being
appointed by discussing their credentials. In my view, the learned
District Judge having not done so, on the said limited aspect as
regards the appointment of the said three persons namesly Uttam
Rane, Anik Dekate and Prakash Nannaware that the impugned order
is required to be set aside and the matter is required to be relegated
back to the learned District Judge, Warora for a denovo consideration
as regards the appointment of the said three new persons appointed
by the impugned order in the light of the law laid down by this Court
in the judgments (supra). The question of law is answered
accordingly. The impugned order is accordingly required to be set
aside to the said extent and the matter is remanded back to the
learned District Judge, Warora for a denovo consideration. On such
remand, the learned District Judge to decide the same within a period
of three months from the receipt of writ of this Court. The learned
District Judge would consider the credentials of the said three
persons and thereafter either appoint them or appointment any other
person/persons whom he deems fit. It is clarified that the impugned
order is set aside to the said limited extent. The above Second Appeal
resultantly is allowed to the aforesaid extent.
8] In the meanwhile, the present trustees would continue to
::: Downloaded on – 09/06/2013 16:49:34 :::
9
function but would not take any major policy decision pending the
decision of the learned District Judge on remand.
JUDGE
Ambulkar
::: Downloaded on – 09/06/2013 16:49:34 :::