1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.4522 OF 2009 Balchandra S/o Pandurang Gaikwad Age : 59 years, Occ : Agri., R/o Devicha Wda, Bhavwani Devi, Mandir Kopergaon, Dist.Ahmednagar. ..Petitioner V/s Smt. Kusum Sonahari Gaikwad Age : 66 years, Occ : Household, R/o Devicha Wda, Bhavwani Devi Mandir Kopergaon, Dist.Ahmednagar. ..Respondents ... Mr.S.P. Chapalgaonkar, Advocate for petitioner. Mr.Nitin Bhavar, Advocate for respondent. ... (CORAM : R.M.BORDE,J.) DATE : 10th December, 2009. ORAL JUDGMENT : 1. Heard Shri.S.P. Chapalgaonkar, learned Counsel appearing for the petitioner and Shri.Nitin Bhavar, learned Counsel appearing for the respondent. 2. Rule. 3. With consent of parties, the matter taken up for final disposal, at the stage of admission. 4. The petitioner herein, is challenging order passed by the Assistant Charity Commissioner on 25.08.2008, directing appointment of Board of Trustees 2 to administer the Trust. The petitioner contend that he is one of the trustee of the Trust by name Bhavani Devi Mandir Trust. The Charity Commissioner had earlier framed scheme for the Trust, on consideration of application tendered by the party concerned, who claimed to have interest in the administration of the Trust. An application bearing No.143/2008 came to be registered in pursuance to the request made by the respondent-herein, seeking appointment of Board of Trustees in exercise of powers conferred under Section 47 of the Bombay Public Trust Act. It is contended by the respondent in the application that the petitioner- herein is the only serving trustee, and, as such, it has become difficult to administer the Trust, and therefore, request was made for appointment of additional trustees. The learned Assistant Charity Commissioner after considering the contentions raised by the applicant/respondent herein has directed appointment of Court Trustee. 5. It is the contention of the petitioner herein that the impugned order has been passed by Assistant Charity Commissioner without extending an opportunity 3 of hearing to him. There are other trustees, who are functioning as members of the Trust. In fact, there was no need to appoint the additional trustees. The Assistant Charity Commissioner has passed the order without extending an opportunity of hearing to the petitioner, and as such same needs to be quashed and set aside, and the matter is required to be remitted back to the Assistant Charity Commissioner for rendering decision afresh. 6. It is the contention of petitioner that the notice was published in newspaper having circulation at Nashik, whereas the petitioner is resident of Kopargaon area. It is contended that there was no proper service and publication allegedly made on 09.02.2008 in Gaokari newspaper, having circulation within Nashik District, can not be said to be proper publication. As such, it is contended that there was no proper service on the respondent. It is fact that contesting parties reside in the same locality, and are immediate neighbours. In these circumstances, the learned Assistant Charity Commissioner ought to have ensured proper service on the petitioner/non-applicant 4 in application tendered before Assistant Charity Commissioner. The order passed by the Assistant Charity Commissioner, is therefore, vitiated, on account of defect in service of notice. It is needless to go into the rival contentions raised by the parties. In these circumstances, the writ petition needs to be allowed, and same is allowed. The impugned order passed by the Assistant Charity Commissioner on 25.08.2008 in Miscellaneous Civil Application No. 143/2008 is quashed and set aside and matter is remitted back to Assistant Charity Commissioner, Ahmednagar. The Assistant Charity Commissioner, Ahmednagar is directed to decide the matter afresh, after extending an opportunity of hearing to the parties concerned. The Assistant Charity Commissioner, Ahmednagar shall decide pending application as expeditiously as possible preferably within six months from the date of receipt of writ of this Court. Rule is made absolute, accordingly. No costs. (R.M.BORDE) JUDGE GAS/wp4522.09