SSK/ 1 WP/3520.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3520 OF 2011 Pradeep Marutrao Dhore & Ors. ....Petitioners Versus Sopanrao Baburao Mhalaskar & Ors. ...Respondents with WRIT PETITION NO. 3612 OF 2011 Shri Maruti Sahadu Dhore & Ors. ....Petitioners Versus Shri Potoba, Mahadeo, Maruti, Datta Deosthan Sansthan, Pune & Ors. ...Respondents Shri P. B. Shah, Advocate for the petitioners in Writ Petition No. 3520 of 2011. Ms. Manjiri Parasnis, Advocate for the petitioners in Writ Petition No.3612 of 2011. Shri R. Narula i/b. M/s. Jhangiani Narula & Associates for respondent nos. 1 to 11 in Writ Petition No.3520 of 2011 and for respondent nos. 2 to 12 in Writ Petition No.3612 of 2011. Ms. P. S. Cardozo, AGP for respondent no.12 in Writ Petition No. 3520 of 2011 and for respondent no.13 in Writ Petition No.3612 of 2011. CORAM : RANJIT MORE, J. DATED : 14th SEPTEMBER, 2011. P.C.: Since both the writ petitions challenges the order dated 5th April, 2011 passed by the Assistant Charity Commissioner, SSK/ 2 WP/3520.11 I propose to dispose of the same by this common order. 2. Shree Potoba, Mahadeo, Maruti, Datta Deosthan Sansthan, Pune (hereinafter referred to as “the Trust”) is a Public Trust registered under the Bombay Public Trusts Act, 1950 (for short “the said Act”). On 15th September, 1976, the Deputy Charity Commissioner, Maharashtra State, Bombay framed scheme under Section 50-A of the said Act in respect of the said Trust. The scheme is annexed at Exhibit “A” to the petition. Under the scheme, minimum 5 and maximum 11 trustees are to be appointed by the Assistant Charity Commissioner after every seven years. While appointing new trustees, the Assistant Charity Commissioner is required to hear the retiring trustees and the devotees. The person having interest adverse to the Trust cannot be appointed as trustee. 3. On 11th January, 2010, the Assistant Charity Commissioner appointed 11 trustees. The said appointment was challenged in Writ Petition No. 3919 of 2010. This writ petition was disposed of by speaking order passed on 15th November, 2010. This Court after hearing the concerned parties quashed the SSK/ 3 WP/3520.11 order of the Assistant Charity Commissioner passed on 11th January, 2010 and the Assistant Charity Commissioner was directed to issue fresh notice inviting applications from the eligible persons for appointment to the post of trustees of the said Trust. The Assistant Charity Commissioner was directed to appoint trustees after holding detailed enquiry and affording an opportunity of hearing to the outgoing trustees. 4. The Assistant Charity Commissioner, accordingly, appointed respondent nos. 1 to 11 in Writ Petition No.3520 of 2011 as trustees. This order, as stated above, is challenged by the petitioners by filing both the writ petitions. The main contention of Mr. Shah and Miss Parasnis is that before appointing respondent nos. 1 to 11 as trustees in Writ Petition No. 3520 of 2011, the Assistant Charity Commissioner has not heard the outgoing trustees. It is admitted fact that the petitioners in Writ Petition No. 3612 of 2011 are outgoing trustees. Both Mr. Shah and Ms. Parasnis, in this regard, relies upon the order under Section 50-A framing scheme, the scheme and observations made in order dated 15th November, 2010 passed by the learned Single Judge in Writ Petition No. 3919 of 2010. In addition to this, learned counsel SSK/ 4 WP/3520.11 appearing for respective petitioners also submits that respondent nos. 1 & 2 in Writ Petition No. 3520 of 2011 have criminal antecedents as criminal case is pending against them. In addition to this, learned counsel for the respective petitioners also submits that respondent nos. 3 & 11 could not be appointed as they have not given any accounts. The objection was also taken to the appointment of respondent no.8 on the ground that he has interest adverse to the interest of the Trust. 5. Mr. Narula, learned counsel appearing for the respondents/newly appointed trustees contested the petitions. He denied that the outgoing trustees were not given hearing. He specifically asserted that they have been given hearing and, in this regard, relied upon the findings of the Assistant Charity Commissioner. So far as the allegations against respondent nos. 1 & 2 are concerned, he submitted that they have no criminal antecedents and only criminal case filed against them is the result of the cross complaint by the petitioners themselves. The allegations against respondent nos. 3 & 11 are also denied. So far as respondent no.8 is concerned, he argued that appropriate orders may be passed. SSK/ 5 WP/3520.11 6. At the outset, I would like to deal with the objection regarding the hearing to the outgoing trustees. There is no dispute that the scheme as well as the order dated 15th November, 201 passed by the learned Single Judge in Writ Petition No.3919 of 2010 obliges the Assistant Charity Commissioner to hear the outgoing trustees at the time of appointing the new trustees. The fact that the petitioners in Writ Petition No. 3612 of 2011 are outgoing trustees is also not disputed by learned counsel appearing for the respective parties. However, the respective counsel’s claim regarding hearing is contrary to each other. The petitioners stated that they have not been granted hearing. The respondents, however, asserts that the petitioners have been given hearing. In view of the rival submissions, I have minutely perused the order impugned. I have also perused the record and proceedings in the matter which was produced in pursuance of the orders of this Court. Para (2) of the impugned order makes it clear that the applications were invited from the eligible persons for the appointment of the trustees, and in pursuance of the advertisement, 293 applications were received. The Assistant Charity Commissioner sent intimations to all these persons by post. However, only 105 persons appeared before him for interview. The interviews were SSK/ 6 WP/3520.11 taken from 18th March, 2011 to 2nd April, 2011. Para (5) of the impugned order records the finding that all 105 persons fulfilled the required qualification as per Clause 9 (b) of the Scheme, inasmuch as, they have completed 18 years of their age and they are residents of the area and devotees of the deity. In paragraph (5), specific observations are made by the Assistant Charity Commissioner that he has heard Baban Mhalaskar for himself and on behalf of ten others. Baban Mhalaskar was admittedly the outgoing trustee. Perusal of the said paragraph, further shows that the Assistant Charity Commissioner had appointed new trustees after interviewing the eligible persons and having interacted with the outgoing trustees i.e. incumbents. Mr. Shah and Ms. Parasnis, however, maintains that the outgoing trustees have not been given hearing. For that purpose, they relied upon the roznama. The roznama which counsel for the petitioner has relied upon is not as per the Civil Manual. The roznama has given particulars about the dates on which the interviews of 105 eligible persons were held. The fact remains that a positive finding is recorded by learned Assistant Charity Commissioner that interviews of the persons who applied for trusteeship are taken, and thereafter, new trustees were appointed after having interacted with the outgoing trustees. These SSK/ 7 WP/3520.11 finding of facts is not specifically challenged by the petitioners in the petition. In that view of the matter, and in view of the limited scope of my powers under Article 227 of the Constitution of India, I am not inclined to interfere with the said finding. 7. So far as respondent nos. 1 & 2 are concerned, the allegations are made that they are persons having criminal antecedents. Regarding respondent no.1, it is stated that he has encroached upon the Government property. Some orders passed by the Executive Engineer are relied upon in this regard. Mr. Narula, however, submits that the respondent no.1 is the owner of the property which petitioners alleged to have been encroached upon by respondent no.1. He also relies upon some documents annexed to his affidavit in reply. While exercising writ jurisdiction, I cannot enter into the disputed facts. The question regarding the title of respondent no.1 will have to be decided by the court of competent jurisdiction. So far as the allegation of criminal antecedents against respondent nos. 1 & 2 are concerned, Mr. Narula, admits that there is a criminal case pending against this respondent, however, he submits that this case is filed by the petitioners themselves and it is the result of the cross complaint. SSK/ 8 WP/3520.11 Respondent nos. 1 & 2 have also filed complaints against the petitioners. The charges are under Section 323, 324, 504 & 506 read with Section 147 of the Indian Penal Code. This aspect is considered by learned Assistant Charity Commissioner. The criminal case is pending. On the basis of this criminal case which is filed at the instance of the petitioners themselves and which is the result of the cross complaint, it cannot be said that respondent nos. 1 & 2 have criminal antecedents. 8. This takes me to consider the allegations against respondent nos. 3 & 11. These respondents are said to have not given accounts. The petitioners alleged that respondent no.3 made expenditure about more than Rs. 22,00,000/- for temple. However, he has not given accounts. The petitioner could not point out whether this amount of Rs.22,00,000/- was contributed by public or devotees at large and/or the same was spent by respondent no.3. Mr. Narula, in this regard, submits that respondent no.3 is a Developer by profession and he has spent the amount of Rs.22,00,000/- from his own pocket. In these circumstances, the allegations against respondent no.3 also are not relevant. The allegations against respondent no.11 that he collected funds on his SSK/ 9 WP/3520.11 own are also vague. Findings are recorded that respondent no.11 collected funds in his capacity as Utsav Samiti President, and therefore, I do not find any substance in the allegation. 9. So far as the allegations against respondent no.8 are concerned, admittedly, he and his family are looking after Puja Archa of the deity. There is no dispute that he is in possession of the agricultural land belonging to the deity. Respondent No.8, therefore, in my opinion, cannot be appointed as a trustee, as he does not comply with the criteria for trusteeship laid down under the scheme. Mr. Narula, in this regard, has no objection if the appointment of respondent no.8 is set-aside. In the circumstances, the writ petitions are disposed of by passing the following order : 1. The writ petitions are partly allowed. 2. The impugned order so far as appointment of respondent no.8 in Writ Petition No.3520 of 2011 is considered, same is quashed and set-aside. Rest of the impugned order viz. concerning appointment of respondent nos. 1 to 7, 9, 10 & 11 in Writ Petition No.3520 of 2011 is concerned, same is confirmed. SSK/ 10 WP/3520.11 3. The Assistant Charity Commissioner is directed to hold inquiry in accordance with the scheme of the trust and appoint any eligible person as trustee in place of respondent no.8 within a period of three months from the date of receipt of the order. (RANJIT MORE, J.)