1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Letters Patent Appeal No.365/2008 in Writ Petition No.3534/2007 (Madanmohan Tolaramji Daga vs. The Deputy Charity Commissioner, Nagpur and others.) ----------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's order Judge's orders and Registrar's order ------------------------------------------------------------------------------------------------------------ Coram : A.P. Lavande And Prasanna B. Varale, JJ. Order reserved on 11/02/2009. Order Pronounced on 13/02/2009. Heard Mr. B.N. Mohta, learned counsel for the appellant, Mrs. Wandile, learned AGP for respondent no.1, Mr. R.M. Bhangde, learned counsel for respondents 2 and 3 and Mr. R.L. Khapre, learned counsel for respondent No. 4. Letters Patent Appeal No. 365/2008 is directed against the judgment and order dated 13.10.2008 passed by the learned Single Judge modifying the judgment and order dated 11.7.2007 passed by the Deputy Charity Commissioner, Nagpur. CAZ No. 5/2009 has been filed by respondents 2 and 3 for dismissal of the appeal on the ground that the appellant himself has filed an application for implementation of the impugned order passed by the learned Single Judge. 2 By the impugned judgment and order dated 13.10.2008, the learned Single Judge has modified the order passed by the Deputy Charity Commissioner. The learned Single Judge has set aside the order passed by the Deputy Charity Commissioner to the extent it directed that the fresh election to the society would be supervised by the national body of Akhil Bhartiya Maheshwari Mahasabha. However, the learned Single Judge confirmed other directions issued by the Deputy Charity Commissioner and further directed to hold election within a period of two months. Mr. Bhangde, learned counsel appearing for the respondents 2 and 3, at the outset, submitted that the appellant himself having sought implementation of the order dated 13.10.2008 passed by the learned Single Judge by filing Misc. application No. 1971/2008 before the Deputy Charity Commissioner on 17.11.2008, the appellant is not entitled to maintain the present LPA inasmuch as the appellant has waived his right to file the appeal. He further submitted that the authority has passed order dated 24.12.2008 on the said application giving certain directions, pursuant to the order passed by the learned Single Judge. In support of the submission that the appeal is liable to be dismissed, the learned counsel relied upon the judgment of the Apex Court in the case of Prabir Banerjee Vs. Union of India and others : (2007) 8 SCC 793. 3 Per contra, placing reliance upon the judgment of the Apex Court in Union of India and others Vs. Ram Kumar Thakur : (2009) 1 SCC 122, Mr. Mohta, learned counsel for the appellant submitted that merely because the appellant has filed the application dated 17.11.2008 the same does not bar filing of the appeal by the appellant. The appeal cannot be said to be not maintainable and the appellant is entitled to file the present appeal. Mr. Mohta, further submitted that the Deputy Charity Commissioner could not have given directions by order dated 11.7.2007 while exercising powers under Section 41A of the Bombay Public Trusts Act (“ the Act” for short). He, therefore, submitted that the impugned orders passed by learned Single Judge as well as the impugned order dated 11.7.2007 passed by the Deputy Charity Commissioner are without jurisdiction and as such liable to be set aside. Mr. Khapre, learned counsel for respondent no. 4 submitted that the appeal filed by the appellant is maintainable. We have considered the submissions made by learned counsel for the parties and perused the record. The present appeal was filed on 10.11.2008 challenging the impugned order passed by the learned Single Judge. On 17.11.2008 the appellant himself filed Misc. Application 4 No.1971/2008 before the Deputy Charity Commissioner for implementation of the order passed by the learned Single Judge, upon which, the authority passed detailed order on 24.12.2008. Indisputably, till filing of the application for dismissal of the appeal by the respondents 2 and 3, this fact was not brought to the notice of this Court. The appellant himself having sought implementation of the impugned order and having secured an order dated 24.12.2008, we are of the considered opinion that the appellant has waived his right to file the present appeal. Moreover, the appellant was bound to disclose this fact to this Court. No doubt, the application for implementation was filed after filing of the appeal but till filing of the Civil Application Z No. 5/2009 by the respondents 2 and 3, the appellant did not choose to bring this fact to the notice of this Court. In our considered opinion, in the backdrop of the above position, this is not a fit case in which we should entertain the appeal filed by the appellant. The ratio laid down in the case of Ram Kumar Thakur (supra) is not clearly attracted inasmuch as in the said judgment the appellant in order to avoid contempt proceedings, implemented the judgment passed by the learned Single Judge and also appeal filed before the Division Bench. In this factual back ground, the Apex Court has held that the appeal was maintainable. In the present case, the appellant himself sought implementation of the impugned order passed by the learned Single Judge. 5 Therefore, the ratio laid down in the said case is not clearly attracted. The appellant himself having sought the implementation of the impugned order passed by the learned Single Judge without even reserving his right to continue with the appeal already filed and having obtained an order thereof cannot now be heard to contend that the appeal filed by him be admitted and heard on merits. Therefore, we are of the considered opinion that the appeal filed by the appellant does not deserve admission. Accordingly, the appeal is dismissed. In view of the above, we are not inclined to go into merits of the matter. Consequently, the appeal stands dismissed with no order as to costs. C.A.Z. No. 5/2009 also stands disposed of. C.A. No. 8701/08 In view of dismissal of the appeal, nothing survives in the application. Hence, the application is dismissed as infructuous. JUDGE JUDGE Ambulkar.