1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5097 OF 2009 Rambhau Narhari Borade and another ..Petitioners Versus The State of Maharashtra and others ..Respondents ... Advocates appearing for : Petitioners : Shri S.V.Warad, Respondent 1 : Shri S.G.Nandedkar, AGP Respondents 2,4 & 5 : Shri V.D.Salunke, and Respondent 3 : Shri A.S.Shelke. ... CORAM : S.B.DESHMUKH,J. Dated : 2.2.2010 PER COURT :- 1. Heard learned counsel for the respective parties extensively. 2. Rule. Rule made returnable forthwith by consent. 3. This petition challenges the judgment and order passed by the learned Joint Charity Commissioner, Latur dt. 6.7.2009 in an application registered as Enquiry Application No.3 of 2003 (Exhibit "B"). There, one Advocate Shri Shivaji Pawar is shown as applicant. In the array of respondents, names of six person have been shown. Shri Warad, learned Advocate for the petitioners points out from the cause title of the petition that petitioner No.1 Rambhau and petitioner No.2 Suryanath were opponent Nos.2 and 6 in the said application filed before the Trial Court. 2 Respondent No.1 in the Writ Petition is State. Shri Salunke, learned Advocate submits that respondents 2,4 and 5 in this writ petition were the opponent Nos.1,3 and 4. It is made clear by Shri Warad, learned Advocate that he was appearing in the trial court for respondents 2 and 6. This was the application filed in the trial Court under Section 41-D of the Bombay Public Trusts Act, 1950 ("said Act"). Prayer was made that the opponents, officiating as trustees of the trust in question, should be suspended, removed from the trusteeship. This was the application filed on 20.1.2003. The parties have placed on record copies of the reply filed in the trial Court. Order passed by the trial Court below Exhibit 1 in Enquiry Application is on record at Exhibit "A". The learned Joint Charity Commissioner passed an order under Section 41-D of the said Act, converting the original application filed by Advocate Shri Pawar into suo moto proceeding under section 41-D of the said Act and passed an order, which is impugned in this Writ Petition. 4. With the assistance of the learned counsel for the parties, I have perused the earlier orders passed by this Court, which are self explanatory. On last occasion i.e. on 19.1.2010, it was submitted before this Court by the learned Advocate for the petitioner that Writ Petition No.4185 of 2009 is identical one and may be listed along with this petition. Accordingly, order to that effect was passed. 5. On today's cause list, Writ Petition No.4185 of 2009 is 3 appearing. With the assistance of learned counsel appearing in that Writ Petition, I have an order, simpliciter adjourned the matter to 5.2.2010. Another reason is that Advocate Shri R.R.Mantri, who is not appearing for any of the parties in this Writ Petition but appearing for the petitioner in Writ Petition No.7746 of 2009, pointed out the earlier order. 6. Thus, present Writ Petition was adjourned from time to time and could not be disposed of. At one of the occasion, submission of learned counsel appearing for respondent is recorded that the petition has become infructuous. However, learned counsel appearing for the petitioner was not available and therefore, this Court adjourned the matter and did not pass any order to that effect. On this background, today, the matter is before the Court. 7. Section 41-D of the said Act is a scheme in itself. Under the scheme of Section 41-D balance is tried to be sought by the Legislature in its wisdom to protect the trust and also rights, if any of the persons officiating as trustees, at the relevant time. Even the person having interest is also contemplated under section 2(10) of the said Act. In the case on hand, original applicant Pawar is not joined as party by the petitioners for the reasons best known to them. However, today, Shri Warad, learned Advocate made a submission before this Court that leave may be granted to the petitioners to join him as a party respondent and for that purpose hearing may be adjourned. This submission is countered by Shri Salunke, learned Advocate. He points out the statement made in 4 affidavit in reply, filed in this Writ Petition. He pointed out paragraph No. (II). I have considered the same. 8. Shri Warad, learned Advocate submitted that the order impugned is illegal and without jurisdiction. According to him, while framing the charges, there was no sufficient material on record. Further, according to him, the learned Joint Charity Commissioner, ought to have called for the explanation from the trustees sought to be suspended and/or removed. Sub-section (1) Section 41-D of the said Act contemplates three circumstances for exercise of the power invested with the Charity Commissioner. First circumstance contemplated is 'on application of a trustee', second circumstance is 'application by any person interested' in the trust and third circumstance is the power vested with the Charity Commissioner which can be exercised by him, suo moto i.e. on his own motion. Apart from these contingencies, report under Section 41- B is also made a ground for exercise of such powers under clause (1) of sub-section (1) of Section 41-D of the said Act. Section 41-D (1) (a) to (f) are the grounds on which such an application can be moved or suo moto powers can be exercised by the learned Charity Commissioner, in view of clause (1) of sub-section (1) of section 41-D. I have also considered sub- sections (2) and (3) to (7) of section 41-D. Sub-section (4) of Section 41-D provides an arrangement for appointing a fit person to discharge the duties and perform the functions of the trust. Final order, if passed under Sub-section (1) of Section 41-D, sub-section (5) makes available remedy within the period of 90 days to apply to the Court. The expression 5 "Court" is defined under section 2(4) of the said Act. (Emphasis supplied). 9. I have examined the grievance of learned counsel Shri Warad, that there is no material on record. It is not possible to countenance the submission of learned counsel for the petitioner. In paragraph No.7, the learned Joint Charity Commissioner has observed, " .....In rebuttal the opponents have not filed on record any material to show that they have regularly submitted audit reports in the office of Assistant Charity Commissioner, Osmanabad....." Further it has been observed that, ".....Even subsequently also the opponents have submitted audit reports after laps of 10 years i.e. in the year 2003...." In paragraph No.6, he refers to the report submitted to him by the Inspector and found from the report that there was sufficient material collected by the Inspector showing that the opponents have committed persistent defaults in submission of audit report and default in submission of change reports. In paragraph No.7, it is a categoric observation made by the authority that, "....However, as observed above the opponent trustees have committed persistent default in submission of audit reports for years together and therefore, they are liable to be immediately suspended under section 41-D(3) of the Bombay Public Trusts Act, 1950....." In paragraph No.8, it has been observed, "..... Due to the act of opponents the trust has suffered financial loss as no rent was recovered from Shrinath Shikshan Sanstha, Pathrud for user of the building of Bhaurao Kate High School, Pathrud. This material is sufficient to hold that the opponents have dealt negligently the trust property and therefore they 6 are liable to be charged under section 41-D((1)(d) of the Bombay Public Trusts Act, 1950." 10. This petition invokes the extra ordinary jurisdiction of this Court. Trust and trust properties, now a days, are the matter of great concern for everyone. I have referred to in the foregoing paragraphs, the pendency of the proceeding, submissions of learned counsel for the petitioner seeking time and liberty to add the original complainant etc. I do not now wish to keep this proceeding pending only for the satisfaction of the litigants concerned. I am satisfied that the learned Joint Charity Commissioner has exercised his powers under Section 41-D of the said Act based on material. Inter locutory order is challenged in this petition by invoking the extra ordinary jurisdiction. The petition bears no substance. 11. In the result, Writ Petition is dismissed. Rule stands discharged. No order as to costs. It is made clear that it was an inter locutory order and the main proceeding and/or Original Application i.e. Enquiry Application No.2 of 2003, converted by the learned Joint Charity Commissioner suo moto, is still pending before him. He shall hear the parties and shall decide the same in accordance with the provisions of law. ( S.B.DESHMUKH, J.) ... akl