skt/- 1 28.wp.7945.08.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7945 OF 2008 Narendra Ramchandra Borde ... Petitioner Vs. The Assistant Charity Commissioner, Solapur & Ors. ... Respondents WITH CIVIL APPLICATION NO. 581 OF 2009 IN WRIT PETITION NO. 7945 OF 2008 Sadashiv Bhagwant Gondras ...Applicant Vs. The Assisstant Charity Commissioner, Solapur & Ors. ... Respondents ...... Mr.S.S.Kanetkar for the petitioner. Mr.S.N.Bhosale, AGP for respondent no.1. Mr.A.B.Tajane for respondent nos. 2 to 5. Mrs. Gauri Jadhav for Intervenor in Civil Application. ...... CORAM : R.C.CHAVAN, J. DATE : 29th APRIL, 2010. P.C. 1. This petition by a Trustee, who has been appointed by the Trust by Resolution dated 25th January 2007, during the skt/- 2 28.wp.7945.08.sxw pendency of the proceeding before the Assistant Charity Commissioner, seeking appointment of trustees in pursuance of Clause 10 of the Scheme, takes exception to the order passed by the learned Assistant Charity Commissioner appointing four other persons as Trustees. 2. I have heard the learned counsel for the petitioner. According to the learned counsel for the petitioner, Clause 10 of the Scheme enables the Assistant Charity Commissioner to fill up the vacancies in the Trust, if the vacancies are not filled up by the Trust within a period of three months. He submits that in view of the provisions under Section 47 of the Bombay Public Trust Act (for short “the said Act) the Assistant Charity Commissioner could not have such powers. He submits that he had raised this specific ground in an appeal against the order rejecting change report whereby he and three others were appointed as trustees. An appeal challenging the Scheme is still pending. 3. It is not necessary to consider in this petition, whether Clause 10 of the Scheme is in contravention of the provisions of skt/- 3 28.wp.7945.08.sxw Section 47 of the said Act. Since that matter is being considered by the Charity Commissioner in the appeal challenging the Scheme challenging the Scheme which is pending before him. Right now, what has to be found out is whether the Assistant Charity Commissioner exceeded his jurisdiction in appointing four persons as trustees and refusing to recognize the petitioner’s appointment as trustee by Resolution dated 25th January 2007. 4. There is no dispute that there were four vacancies in the Trust which were not been filled in by the Trustees within 90 days and therefore, an application had been made to the Assistant Charity Commissioner on 27th January 2005 by respondent nos. 2 to 5 for appointment as trustees. In this application, it was specifically mentioned that the vacancies which had occurred on account of death of four trustees has not been filled in within a period of 90 days, as was required under Clause 10 of the Scheme and that therefore the Assistant Charity Commissioner, who under the said Clause, was empowered to fill up the said vacancies, was requested to skt/- 4 28.wp.7945.08.sxw appoint respondents as trustees. Almost two years after this application was filed, the petitioner, along with four others, came to be appointed as trustees by the remaining trustees. Ordinarily, when a proceeding was pending before the Assistant Charity Commissioner, the Trust ought to have either sought leave from the Charity Commissioner for appointing the trustees, since he was seised of the question of failure of the trust to appoint trustees within a period of 90 days from the occurrence of vacancies. Be that as it may. The learned counsel for the petitioner has not been able to show as to how those appointments made by the Assistant Charity Commissioner are in violation of the Scheme which was in force right since 1982, and had not been challenged till the Assistant Charity Commissioner passed the impugned order. Even in the objection of the petitioner before the Assistant Charity Commissioner, there is no specific reference to Clause 10 of the Scheme and there is no averment that Clause 10 of the Scheme contravenes provisions of Section 47 of the said Act, which contention had been raised for the first time while skt/- 5 28.wp.7945.08.sxw preferring an appeal against the Scheme before the Joint Charity Commissioner and has been again raised now in this petition. 5. Since the question as to whether Clause 10 of the Scheme is violative of Section 47 of the said Act, is being separately adjudicated, it need not be gone into at this stage while deciding this petition. It would be impermissible to foreclose the decision on the question of tenability of Clause 10 which the petitioner has raised in a separate proceeding. The question in this petition is whether the Assistant Charity Commissioner could have appointed respondent nos. 2 to 5 in terms of Scheme which was in force for 28 years. Since the appointment of respondent nos. 2 to 5 by the Assistant Charity Commissioner is in consonance with the Scheme which was in force for almost 28 years and which had not been challenged till the impugned order was passed, it cannot not be said that the Assistant Charity Commissioner erred in appointing respondent nos. 2 to 5 as trustees or in rejecting the petitioner’s objection. skt/- 6 28.wp.7945.08.sxw 6. The petition is, therefore, dismissed. 7. In view of the dismissal of the petition, the Civil application does not survive and stands disposed of. [ R.C.CHAVAN, J. ]