1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION No. 7053 of 2009 1] Sambappa S/o Trimbakappa Girwalkar, Age 78 years, Occu. Agriculture, R/o Near Panchayat Samiti Office, Mitra Nagar, Latur. 2] Vijaykumar S/o Bhaurao Shete, Age 69 years, Occu. Agriculture, R/o Sadbhavana nagar, Ausa road, Latur. 3] Ratneshwar s/o Trimbakappa Kore, Age 72 years, Occu. Agriculture, R/o Laxmi Tower, Mondha, Parli Vaijnath, Dist. Beed. .... Petitioners Versus Joint Charity Commissioner, Latur region, Latur. ( Respondent to be served through Government Pleader, High Court of Judicature at Bombay, Bench at Aurangabad. ) ...Respondents Mr. R.R. Mantri Advocate h/f Shri A.R. Kale, Advocate for petitioners Mr. K.M. Suryawanshi, A.G.P. for respondent. CORAM: R.K. DESHPANDE, J. DATED: 04th August, 2010 ORAL JUDGMENT : 1. This Writ petition challenges order dated 9th October, 2009 passed by the Joint Charity Commissioner, Latur Region, Latur below 2 Exh. 29. By this order, the application Exh. 29 filed by the present petitioners with a prayer to drop the proceedings under section 41-D against them or in alternative to stay the proceedings, pending the decision in Writ Petition No. 6542 of 2009 has been rejected. The Joint Charity Commissioner has held that the change report has not been accepted till this date and the names of defacto trustees are not deleted from Schedule-I of P.T.R.. Therefore, he has to proceed further even against the defacto trustees under section 41-D under the Bombay Public Trust Act, in view of this ,application is rejected. 2. Notice in this matter was issued on 3rd November, 2009. Learned A.G.P. for Joint Charity Commissioner. Shri Gunale has filed application for intervention bearing No. 13626 of 2009. The learned counsel for the petitioners strongly opposes to such intervention. The learned A.G.P. appears for respondent. Rule returnable forthwith. The matter is heard finally by consent of parties. 3. The contention of Shri Mantri, learned counsel for the petitioners are that the petitioners are the fit persons appointed as defacto trustees and hence power for their removal conferred upon the Charity Commissioner under Section 41-D(1) cannot be exercised. He relies upon the judgment of this Court in the case of “ Zitru Lahanuji Lonare Vs. Rajesh Trimbakrao Deshmukh and others, reported in 2008(6), Mh.L.J.”. He further submits that the similar issue is involved in Writ 3 Petition No. 6542 of 2009 which has been admitted by this Court on 05th October, 2009. He submits that after Writ Petition No. 6542 of 2009 was admitted by this Court and thereafter, again same proceedings for same allegation are taken up by the learned Joint Charity Commissioner. He submits that in view of pendency of Writ Petition, this suo-moto proceedings for the same cause could not have been taken up by the learned Joint Charity Commissioner 3. From the order passed which was impugned in this petition, it is not clear as to whether the learned Joint Charity Commissioner has decided to proceed against the petitioners under Section 41-D(1) of the Bombay Public Trust Act. It merely states that he has decided to proceed further against the defacto trustees under section 41-D of the said Act. Shri Mantri learned counsel for the petitioner submit that it is not in dispute that the Joint Charity Commissioner has power under Section 41-D(4) of the said Act, to remove the petitioners. However, he further submits that such a removal cannot be on the grounds stated in section 41-D(1) as has been held by this Court. 4. In view of these contentions, it was necessary by the Joint Charity Commissioner to deal with the contentions raised before him, and to make it clear as to whether power under section 41-D (1) or under Section 41-D(4) of the Bombay Public Trust Act is being invoked. 4 Therefore, the impugned order dated 9th October, 2009 cannot be sustained. 5. In the result, the instant writ petition is allowed. The order dated 9th October, 2009, is hereby quashed and set aside. The matter is remitted back to the Joint Charity Commissioner, Latur Region, Latur for deciding the application Exh. 29 afresh and to pass speaking order dealing with the contentions raised before him, in accordance with law. So far as the application for intervention is concerned it does not require any consideration by this Court. However, it is left open for the intervenor to appear before the Joint Charity Commissioner in this proceedings and to make their submissions, which shall also taken into consideration by the Joint Charity Commissioner in accordance with law. 6. Shri Mantri learned counsel for the petitioner submits that the intervenor have no right or locus-standi to intervene in the proceeding before the Joint Charity Commissioner, however, if such objection is raised same shall be decided without being influenced by any observations made above in accordance with law. Rule made returnable forthwith in these terms. No order as to cost. [ R.K. DESHPANDE, J.] SDM*7503.09WP