1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 609 OF 2010 Vithalrao S/o Sambhajirao Kharpade .... APPELLANT V E R S U S Pandharinath S/o Sadashiv Sandore & Others .... RESPONDENTS -------------------------------------------------------------------------------------------------- Mr. N.P.Patil (Jamalpurkar), Advocate for the appellant. Mr. R.N.Dhorde, Advocate for respondent no. 1 to 6. -------------------------------------------------------------------------------------------------- CORAM : S.V.GANGAPURWALA, J. DATE : 28/09/2010 ORAL ORDER : 1. The appellant is the Secretary of the Trust namely Mahatma Basweshwar Shikshan Prasarak Mandal, Kharosa, Tq. Ausa, Dist. Latur. The present respondents had filed an application under Session 41-D of the Bombay Public Trust Act alleging malfeasance and misfeasance on the part of the present appellant and 4 others i.e. the present appellant and present respondent nos. 7 to 10. The Joint Charity Commissioner, Latur framed 5 charges against the appellant and respondent nos. 7 to 10. Those are as under : 2 “ (1) That you respondents being the trustees of Trust ‘ Mahatma Basweshwar Shikshan Prasarak Mandal, Kharosa, Tq. Ausa, Dist. Solapur ‘, P.T.R. No. F-53 – Latur have not submitted audit report and returns of the trust since 1997 till 2007 and thereby committed an actionable under Section 41-D (a) of the Bombay Public Trust Act, 1950 ( hereinafter referred as ‘ B.P.T. Act ’ ). (2) Secondly, you respondent no. 2 being the Secretary of the aforesaid trust and never called meetings of governing body as well as general body as per law and Rules and you had not maintained stock register, ledger, cash book, bank account, property register, notice book, proceeding book of the trust and thereby continuously neglected in your duties and committed act actionable under Section 41-D (c) of the B.P.T. Act. (3) Thirdly, you respondent no. 2 being the Secretary of the aforesaid trust on 14/5/1985 sold out 40.47 R area out of survey no. 210 owned by above said trust situated at Mouje Kharosa to ‘ Vividh Karyakari Seva Sahakari Society, Kharosa ’ for the consideration of Rs. 5,000/- without permission of Joint Charity Commissioner in contravention of Section 36 (1) (a) of the B.P.T. Act and thereby committed an act actionable under Section 3 41-D (d) of the B.P.T. Act. (4) Fourthly, you respondent nos. 1 to 5 borrowed hand loan of Rs. 2,01,760/- on behalf of trust, in contravention of Section 36 (A) (3) of B.P.T. Act, without permission of Joint Charity Commissioner and thereby committed act of malfeasance actionable under Section 41-D (c) of the B.P.T. Act. (5) Fifthly, you respondent no. 2 before 31st March, 1998 obtained advance of Rs. 1,55,626/- from the trust in contravention of Section 36 (A) (4) of the B.P.T. Act and committed an act of malfeasance actionable under Section 41-D (c) of the B.,P.T. Act. 2. After the charges were framed, opportunity was given to the parties concerned to contest the same. The Joint Charity Commissioner vide its Order dated 16/2/2010 held the present appellant guilty for the charges under Section 41-D (1) ( c) and (d). The present appellant preferred Misc. Application before the District Court, Latur. The present respondents also preferred an application against the order discharging respondent nos. 7 to 10. The Adhoc District Judge – 2, Latur vide Order dated 6/8/2010 confirmed the order passed by the Jt. Charity Commissioner. The appellant being aggrieved by the said order, has approached this Court. 4 3. Mr. N.P. Patil ( Jamalpurkar), the learned counsel for the appellant vehemently contended : (i) That the alienation which is agitated has been effectuated in the year 1985 and the grievance about the same is made in the year 2007 after such an inordinate delay. There was no ill intention on the part of the appellant while alienating the property. (ii) Compared to the charges, the punishment imposed is too harsh. (iii) The degree of proof required is very high when such a drastic action is being taken and for that purpose, has relied on the Judgment of the learned Single Judge of this Court in the case of Vajubhai Patel & another V/s Charity Commissioner, Maharashtra State & Others reported in 1990 (2) Bom. C.R. - 702. 4. The Appeal though it is filed as Second Appeal, the parameters as are required in the Second Appeal filed under Section 100 of the Code of Civil Procedure are not to be insisted as this is a statutory appeal under Section 41-D (5) of the B.P.T. Act and for the said purpose, has relied on the Judgment of the learned Single Judge of this Court in the case of Mallikarjuanappa Sidramappa Bidve & Others V/s Joint Charity Commissioner & Others reported in 2008 5 (1) Bom. C.R. - 172. 5. As the action of the present appellant was in good faith, bonafide and there was no ill intention, nor any proof that the appellant has utilized the amount for his own gain, such harsh action ought not to have been resorted to and the lenient view should to have been taken. 6. Per contra, Mr. R.N.Dhorde, the learned counsel for the respondents submitted that the appellant was the Secretary and the Custodian of all the records. He has failed to submit the accounts with a view that his misdeeds should not come to the light. The rent which is received is also not accounted for. He submits that the said alienation is without any authority and the same is in contravention of Section 36-A, which tantamounts to malfeasance. According to him, even the advance which is taken, is not permissible and the same is prohibited under Section 36-A (3) and (4) of the B.P.T. Act. 7. With the assistance of the learned counsels for the respective parties, I have gone through the Judgments and considered the arguments advanced. 8. No doubt, the alienation is made by the appellant in the year 1985. No resolution is on record to show that it was the collective 6 decision of the managing committee or the members of the Trust to alienate the property. The Courts below have observed that the appellant being the Secretary, he ought to have been in custody of the record and if he contends that record is with one Motiram, who was Clerk and Jt. Secretary, no notice was issued to said Motiram to produce the said record. 9. The alienation is strictly prohibited under Section 36 of the B.P.T. Act. Section 41-D of the B.P.T. Act lays down action that can be taken if the trustee deals improperly with the property of the Trust. The alienation is not disputed. More over, the said alienation was to the Society, of which the present appellant was the Chairman. The go- down was constructed by the said Society and the present Trust had taken part of the said go-down on lease at the rent of Rs. 1500/- per month. The rent of Rs. 1500/- per month was received by the Trust, but no accounts of the same are maintained. The appellant contends that the same has been used for the expenses of the Trust. No explanation is forthcoming about the necessity to sale the said property. More over, the same also would not be germain in view of the fact that the sale of the said property itself is prohibited without the sanction of the Charity Commissioner. Regarding the contention of Mr. N.P. Patil, the learned counsel for the appellant that the burden of proof required is quite high, same can not be disputed, but, in the present case the facts itself are not disputed. The alienation of the trust property at the 7 hands of the appellant is the matter of record. Even it does not transpire that any resolution was passed though it was contended by the appellant. The sale deed does not speak about any such resolution being passed. Even the advance amount which is received from the Trust in the year 1998 of Rs. 1,55,626/- is against the provisions of the statute. All these acts are acts of malfeasance. In such circumstances, the Courts below have considered the charges, the evidence on record and have come to the just conclusion. The Judgment of the learned Single Judge of this Court in the case of Mallikarjuanappa Sidramappa Bidve referred supra may not be totally relevant as even on facts the appellant has not been in a position to show any perverse finding in as much as all the acts complained of are matter of record. The District Judge has exonerated the appellant of the charges of (i) not submitting the audited accounts in time and has indicted the appellant on charges of alienating the Trust property without the sanction of the Charity Commissioner, (ii) receiving advance from the Trust without the permission and (iii) not calling for the meeting of the general body and managing committee after 2006 as he has contravened the provisions of Section 41-D (c) and (d) of the B.P.T. Act. 10. No error has been committed by the Courts below. As such, the Second Appeal being devoid of merit, is dismissed with no order as to costs. 8 11. In view of dismissal of appeal, the Civil Application does not survives and as such disposed of. [ S.V.GANGAPURWALA ] JUDGE knp/SA 609.2010