27wp2163-11.sxw 1 spb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2163 OF 2011 1. Hiralal Motilal Bhagwan & Ors. ... Petitioners. V/s. 1. Dr. Jabbarali Nabilal Nadaf & Ors. ... Respondents. --- Mr. Surel Shah for the Petitioners. Ms. Mini Mathew i/by Mr.Prakash Mahadik for Respondent Nos.1 to 3. Mr. R.M. Patne, AGP for Respondent No. 16. --- CORAM:- G.S. GODBOLE, J. DATED :- 18TH NOVEMBER, 2011. P.C. : 1 Considering the observations made by the learned single Judge (R.M.S. Khandeparkar, J.) while dismissing the First Appeal No. 820 of 1999 and the fact that the impugned Order has been passed without even issuing any notice to the Petitioners, whose names are sought to be deleted by the impugned order, arguable questions are raised. Hence, I was inclined to issue Rule, however, the learned Advocate for the Respondent Nos. 1 and 2 states that the said Respondents who were Applicants before 27wp2163-11.sxw 2 the District Court have no objection for setting aside the order only on the ground that the Petitioners were not heard and for directing the District Court to hear and decide the Application afresh. 2 Heard Mr. Surel Shah for the Petitioners, Smt. Mini Mathew i/by Prakash Mahadik for the Respondent Nos. 1 to 3. Respondent Nos. 1 and 2 are the original Applicants in Misc. Application No. 54 of 2006 filed in Civil Misc. Application No.48 of 1989 and Civil Misc. Application No. 49 of 1989 in the Court of Additional District Judge, Pandharpur at Pandharpur and considering the controversy involved in this Petition and since contesting Respondents Nos. 1 to 3 are represented and since Affidavit has been filed by the Respondent No.2 for himself and on behalf of the Respondent Nos. 1 and 3 to the effect that they have no objection for setting aside the impugned Judgment and Order, I am proceeding to decide the Writ Petition without a formal notice for final disposal or though Rule had not been issued in this Writ Petition. 3 As stated above, an Affidavit sworn by Respondent No.2 is tendered by the Advocate of the Respondent Nos. 1 to 3. Rule. Rule is made returnable forthwith. The learned Advocate for the Respondent Nos. 27wp2163-11.sxw 3 1 to 3 waives service of Rule. In the peculiar facts and circumstances of the case, as narrated above and in view of the fact that a notice before admission is served on the remaining Respondents, service of Rule on Respondent Nos. 4 to 15 is being waived. The learned AGP appears for Respondent No.16 who is a formal party. 4 I have heard Mr. Shah for the Petitioners and Ms. Mini Mathew for the Respondent Nos 1 to 3 and the learned AGP for Respondent No.16. Two Applications for framing of a scheme of Anjuman Himayat Islam Trust were filed before the Joint Charity Commissioner, Pune being Application No. 73/1984 and Application No. 57/ 1985 by a common Judgment and Order dated 6.11.1987, the learned Deputy Charity Commissioner, Pune Region, Pune allowed the Application No. 57/1985 and framed a scheme of the Trust and according to the said scheme 13 persons were to act as trustees. 5 Aggrieved by this order Civil Misc. Application Nos. 48/1989 and 49/ 1989 were filed in the Court of learned Additional District Judge, Pandharpur at Pandharpur and both the Applications were heard together and by a common Judgment and Order dated 31.08.1999, the learned 27wp2163-11.sxw 4 Additional District Judge passed the following Order : ORDER 1. Both the applications are allowed. 2. Consequently the order passed by the Deputy Charity Commissioner,Pune Region, Pune on 6.11.1987 in application No. 73/1984 and 57/1985 in the matter of “Anjuman Himayat Islam, Pandharpur” District : Solapur, P.T.R. No. E/78(Solapur) is set aside. Consequently, the application No. 73/1984 before the Deputy Charity Commissioner, Pune is allowed and the application No. 57/1985 is rejected. 3. The scheme of the Trust as submitted by the applicants in application No. 73/1984 is accepted. 4. The management and property of the Trust shall vest in the board of trustees as mentioned in the application No. 73/1984 and the said board of trustees shall govern and control trust and trust property. 5. In peculiar circumstances of the case parties are directed to bear their own costs. 6. In view of this order the opponents are restrained from demolishing the central hall or any construction in Trust property bearing CTS No. 4556 and 4557. sd/- 31.8.1999. (J.D.KULKARNI) Additional District Judge, Pandharpur. 27wp2163-11.sxw 5 6 Thus the scheme submitted by the Applicants in Application No. 73/1984 was accepted. In the meantime, when the said Civil Misc. Application No. 48/1989 and Civil Misc. Application No. 49/1989 were pending, some of the Applicants and precisely Applicant Nos. 6,8,11 and 16 in Civil Misc. Application No. 48/1989 filed a purshis below Exh. 45 whereas the Applicants Nos. 3,12, 13 and 15 in C.M.A.No. 49/1989 filed another purshis below Exh. 51, stating that they do not wish to prosecute the Applications further. In the purshis it was stated that they were accepting the Judgment and Order dated 6.11.1987 passed in the Scheme Application No. 57/1985. By the order dated 10.06.1989, the learned ADJ allowed the purshis and deleted the names of the Applicant Nos. 6,8,11, 16 and Applicant Nos. 3,12,13 and 15 by deleting their names from the array of the parties. The remaining Applicants continued to prosecute the proceedings and as extracted above, the Applications were allowed by order dated 31.8.1989. The net result was that though the name of the 8 of the Applicants were deleted, their names remained as members of the First Board of Trustees in Application No.73/1984 which was allowed. 7 This order dated 31.8.1989 allowing Civil Misc. Application Nos. 27wp2163-11.sxw 6 48/1989 and 49/1989 and thereby dismissing the Application No. 57/1985 and allowing Scheme Application No. 73/1984 was challenged in this Court by filing F.A. No. 820/1999 which was dismissed at the stage of admission with the reasoned order of R.M.S. Khandeparkar J. on 23rd September, 2002. The submission regarding legal effect of deletion of 8 Applicants from the array of the parties in the District Court was specifically urged and rejected. Consequently, the First Board of Trustees as suggested in scheme Application No. 73/1984 which includes the Petitioners herein was constituted and it is thereafter, that the present Respondent Nos. 1 and 2 filed Misc. Application No. 54 /2006 under section 152 and 153 of the Code of Civil Procedure, 1908 styled as an Application for correction of accidental slip or omission in the common Judgment and order dated 31.8.1999 in Civil Misc. Application No. 48/1989 and 49/1989. Without issuing any notice to the persons whose names were sought to be deleted from the array of the Trustees, the learned District Judge -I, Pandharpur has passed the impugned order by allowing the said Misc. Application No. 54/2006. 8 Thus it is clear that the legal effect of this impugned order was to remove 8 persons who were otherwise appointed as Trustees vide the 27wp2163-11.sxw 7 earlier order dated 31.8.1999 without giving any opportunity of hearing to them. On this solitary ground the impugned Judgment and Order is required to be set aside and it is accordingly quashed and set aside. 9 Misc. Application No. 54/2006 is restored to file of the learned District Judge-I, Pandharpur with a direction to issue notices to all the concerned Respondents therein who are likely to be affected by any order being passed therein. The Respondent Nos. 1 to 3, out of which Respondent Nos. 1 and 2 were the Applicants before the District Court have expressly consented for this remand by submitting an Affidavit. I am even otherwise convinced that the impugned Judgment and Order is completely unsustainable solely on the ground that the Rules of natural justice have not been complied with. All other contentions in respect of the maintainability of the Application and the propriety to entertain such Application etc. which are sought to be raised by Mr. Shah are kept open to be considered by the learned District Judge, at the time of hearing of Misc. Application No. 54/2006. It is directed that an endeavour shall be made to expeditiously decide the said Misc. Application No. 54/2006 and the same shall be decided on or before 31st July, 2012 after ensuring that all the concerned persons whose names are sought to be deleted from the Scheme annexed to the Scheme Application No. 73/1984 are given notice 27wp2163-11.sxw 8 and are heard. 10 Rule is made partly absolute in the aforesaid terms with no order as to costs. 11 The Petitioners and Respondent Nos. 1 to 3 who are appearing before this Court shall appear before the District Judge-I, Pandharpur on 19th December, 2011 and seek appropriate directions for implementation of this order. All the parties and the learned District Judge to act on an authenticated copy of this order. The Registrar Judicial is directed to communicate this order to the District Judge -I, Pandharpur by forwarding a copy thereof. [G. S. GODBOLE, J.]