WP 4669 of 10 1 SSK/4 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4669 OF 2010 Radhaji Shripat Patil (Bhoknal) ....Petitioner Versus The State of Maharashtra and Ors. ...Respondents Mr. Sagar Kasar, Advocate for the Petitioner. Mr. S. N. Bhosale, AGP for Respondent Nos. 1 & 2. Mr. G. A. Khsirsagar, Advocate for Respondent No.3. CORAM : R. V. MORE, J. DATED :28th JULY, 2010. P.C.: Heard learned Counsel for the respective parties. 2. Rule. Since short point is involved, by consent, Rule is made returnable forthwith. 3. The Respondent No.2 by the impugned order dismissed the Petitioner’s application on the ground that the Petitioner could not point out any provisions under which the said application is filed. WP 4669 of 10 2 4. The Petitioner is a President of Shri Sant Dnyaneshwar Vidyaprasarak Mandal, Talegaon Rohi, Taluka Chandwad, District Nashik, which is registered under the provisions of the Society Registration Act, 1860 and the Bombay Public Trust Act, 1950. The said Trust is having its own land and running Schools for Std. V to Std. X on the basis of grant in- aid by the Government. The main activities of the Trust are being carried in Chandwad Taluka. However, it has got permission to run the School at Village - Mawadi in Dindori Taluka. It is the case of the Petitioner that it has become difficult to the said Trust to run its School at Village-Mawadi due to long distance and other difficulties and therefore by passing a resolution, the management decided to transfer the management of Shri Sant Dnyaneshwar School, Village Mawadi, Taluka Dindori, District-Nashik to Respondent No.3-Trust. The Petitioner-Trust and Respondent No.3-Trust agreed for the said transfer and moved a proposal before the Deputy Director of Education, Nashik. The Deputy Director of Education, Nashik, however, directed the Petitioner to get approval from Respondent No.2 and therefore, the Petitioner preferred an application for approval for transfer of Management of Shri Sant Dnyaneshwar School, Village Mawadi, Taluka Dindori, District-Nashik to Respondent No.3-Trust. It was specifically stated in the said application that if sanction is granted, then, all the properties belonging to the Petitioner-Trust i.e. Land, Building of Shri Sant Dnyaneshwar School, Village Mawadi, Taluka Dindori, District-Nashik WP 4669 of 10 3 would be transferred to Respondent No.3-Trust. The said application was placed before the Respondent No.2. On 8th September, 2009, the Respondent No.2 passed the following order : “Advocate for the Applicant to show me provision.” Subsequently, the Respondent No.2 rejected the Petitioner’s application on 15th February, 2010 on the ground that the Petitioner could not point out any provision under which the said application is filed. This order is impugned in the present petition. 5. Having considered the submission of the respective Counsel and having gone through the compilation of writ petition, I find that the impugned order cannot be sustained. The cause title of the impugned order discloses that the Petitioner’s application was numbered as 29 of 2008. It further shows that the said application is filed under section 36(1)(a) of the Bombay Public Trusts Act, 1950. In that view of the matter, it was not necessary for the Respondent No.2 to require Petitioner’s Advocate to show the provisions under which the said application is filed. Admittedly, the Petitioner – Trust as well as Respondent No.3- Trust are registered under the Bombay Public Trust Act, 1950. By the application in question, the Petitioner wants to transfer the management of Shri Sant Dnyaneshwar School, Village Mawadi, Taluka Dindori, District-Nashik alongwith its WP 4669 of 10 4 property to Respondent No.3-Trust. Under section 36(1)a) of the B.P.T.Act, 1950, such transfer can be effected only after obtaining prior permission of the Charity Commissioner and therefore, the Petitioner’s application was maintainable before Respondent No.2. Be that as it may, earlier the Petitioner had filed Miscellaneous Application No.4 of 2008 to transfer the management of Sant Dnyaneshwar Vidyalaya, Bhaygaon, Taluka-Peth and Sant Dnyaneshwar Vidyalaya, Rasegaon, Taluka-Dindori to Lasalgaon Shikshan Sahayyak Mandal, Lasalgaon, Tal. Niphad, District-Nashik. This application was allowed and sanction was granted under the provisions of section 36(1)(a) of the B.P.T.Act by Respondent No.2 on 30th April, 2008. In these circumstances, in my view, the Respondent No.2 was not justified in rejecting the Petitioner’s application on the ground that the Petitioner’s Advocate failed to point out any provision under which the said application is filed. It is now settled position of law that while considering an application under section 36(1)(a) of the B.P.T. Act, the Charity Commissioner is required to consider two aspects i.e. Whether the Trust is in genuine need to sell its immovable property and whether the said property is being sold in the interest of trust and its beneficiaries. These aspects were not considered by Respondent No.2 as the Petitioner’s application was rejected on the ground of maintainability. In the light of above discussion, I dispose of the petition by passing the following order : WP 4669 of 10 5 1. The impugned order passed by Respondent No.2 is quashed and set-aside and the matter is remanded back to Respondent No.2. 2. The Respondent No.2 shall decide the Petitioner’s application on merits in the light of observations made above as expeditiously as possible and preferably within a period of four weeks from the date of receipt of this order. (R. V. MORE, J.)