1 wp 3611/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3611/2010 Yadav Tukaram Kotame & Ors. Petitioners Vs. Bhausaheb Admanen & Ors. Respondents Mr.Vivek Salunke i/b Mr.P.B.Shah for petitioner None for respondents CORAM-Mrs.Mridula Bhatkar,J. DATE -18th July,2011. P.C. . This petition is filed challenging the order dated 19/9/2009 passed by ,the Jt.Charity Commissioner, Nasik in Enquiry Application no.4/2007 and also the consequent orders dated 12/10/2009 and 13/12/2009 passed by the Jt.Charity Commissioner. Respondent nos.1,2 and 4 though served chose to remain absent. Respondent no.3 is deleted and the petition is dismissed against respondent no.5. Today also none present for respondent nos.1,2 and 4. 2 Heard learned counsel for the petitioner. Both the petitioners and respondent nos.1 and 2 are the trustees of Shri Jagdamba Devasthan Kotamgaon Khurd Trust. The petitioner had filed application u/s 41(D) of the Bombay 2 wp 3611/2010 Public Trusts Act,1950 wherein he has made serious allegations of misappropriation of the amount of the Trust by respondents 1 and 2. During the enquiry, the petitioners filed affidavit in chief of the witness namely Uttam Changdev on 18/9/2008. The said affidavit in chief was taken on record by the Jt.Charity Commissioner and thereafter as per the submissions made by the learned counsel the matter was fixed on 19/9/2009. On the same day the application was moved on behalf of the witness that he was unable to attend the proceedings due to Navaratri festival. However, on the same day the Jt.Charity Commissioner passed order of discarding the evidence as he was not available for cross examination. On the next date the matter was fixed, however, on the same day the witness moved an application for adjournment as he was not well. Both the applications were opposed by the opponents. The learned Jt.Charity Commissioner rejected the said application due to consecutive absence of the witness. Again on 20/11/2009 the petitioner moved an application for setting aside the previous order of discarding the evidence and prayed that his evidence be recorded. On that day the witness was present, 3 wp 3611/2010 however,Jt.Charity Commissioner rejected that application by order dated 30/12/2009 after hearing the opponents. 3 It appears from the record that on the dates fixed for recording cross examination the witness could not remain present, however, he had moved application stating some reasons before the Jt.Charity Commissioner. Alongwith his application which was filed for withdrawing the order of discarding his evidence , he had also submitted medical certificate showing that he was not well on the scheduled date of his evidence. The charges levelled in the enquiry are of the misappropriation of the amount of the said Trust. 4 In this view of the matter the petition is allowed. 5 The Jt.Charity Commissioner,Nasik is directed to proceed with the enquiry by recording the evidence i.e.cross examination of Uttam Changdev Lahare . 6 The Jt.Charity Commissioner to give notice to the parties. 4 wp 3611/2010 7 Enquiry be concluded within four months from the date of receipt of this order. 8 Parties to appear before the Jt.Charity Commissioner on 28th July, 2011. (Mrs.Mridula Bhatkar,J.)